Case 6:11-cv Document 2-1 Filed 05/17/11 Page 1 of 26 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

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1 Case 6:11-cv Document 2-1 Filed 05/17/11 Page 1 of 26 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO CANDICE HERRERA, et al., v. Plaintiffs, Case No. 6:11-cv SANTA FE PUBLIC SCHOOLS, et al. Defendants. PLAINTIFF CANDICE HERRERA S MEMORANDUM IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER INTRODUCTION On April 16, 2011, two of the best students at Capital High School in Santa Fe, New Mexico, Plaintiffs Candice Herrera and her younger sister, T.H., went to their school s Prom at the Santa Fe Convention Center. Like other students at Capital High School, Candice, who is a senior at Capital, and her sister were dressed in their nicest formal clothes and excited for the biggest social event of high school. When the sisters walked into the Prom, the night became one of the most memorable events of their young lives, but not for the reasons they had expected when they had dreamed about going to the Prom. Instead of remembering the glitz and glamour, the crowning of the king and queen, and celebrating with friends, Candice and T.H. will remember having their breasts and bras grabbed, their dresses lifted, and their legs inspected by a guard working with Santa Fe Public Schools ( SFPS ). Candice also had her purse, with all of her personal possessions in it, dumped out on a table and searched. These searches were not the result of some rogue guard failing to follow the security procedures at the Prom. Instead, the searches were at the instruction, under the supervision, and with the participation of Capital High School staff, including Principal Melanie Romero, who not only watched the searches but also participated in the searches of students possessions.

2 Case 6:11-cv Document 2-1 Filed 05/17/11 Page 2 of 26 Candice and T.H. were not the only students searched in this offensive and degrading manner. Under SFPS s security procedures at the Prom, all students had their bodies and the items in their bags, purses, and jackets examined by Defendant ASI New Mexico ( ASI ) employees and Capital High School staff. These procedures are part of a long-standing custom and practice of blanket searches of all SFPS students entering various large gatherings. The searches are not based on any reasonable suspicion of wrongdoing, but instead, the searches are, at best, based on mere apprehension that students might misbehave at these events. The searches appear to have no particular purpose. After searching students possessions at the Capital High School Prom, school officials confiscated items such as nail clippers, hand lotion, lip gloss, and prescription medicine. At last year s Capital High School graduation, school officials searched students for items such as beach balls, and this year, searches will be used to discover and confiscate distracting contraband such as cell phones. When Candice and T.H. s father told school officials that under the law and the School District s own policies, students cannot be searched without individualized reasonable suspicion, the school officials asserted, contrary to the Constitution and clear Supreme Court jurisprudence, that they could search students without any suspicion of wrongdoing. The custom and practice of searches are well-known to the highest SFPS officials, including the Superintendent and Board of Education. Not only have school officials conducted many such blanket searches at graduations, proms, and homecomings, but the searches have been discussed by members of the Board of Education at board meetings. Nonetheless, the unjustified, inappropriate, and unconstitutional searches continue and school officials plan to search students at upcoming events such as the Santa Fe High School Prom and the Capital High School Graduation. Candice Herrera plans on attending both of those events in the next two weeks, but, of course, also seeks to avoid further violations of her constitutional rights. Accordingly, she 2

3 Case 6:11-cv Document 2-1 Filed 05/17/11 Page 3 of 26 hereby moves for a temporary restraining order to prevent unconstitutional searches by SFPS, its employees, and agents at future student gatherings she will attend. FACTUAL BACKGROUND Plaintiffs Candice Herrera and T.H. are students at Capital High School in Santa Fe, New Mexico. (Ex. 1, C. Herrera Aff. at 1; Ex. 2, T.H. Aff. at 1.) Candice, a senior, is in the top ten percent of her class and a member of the National Honor Society. (Ex. 1, C. Herrera Aff. at 1.) T.H., a tenth grader, is an A student ranked at the top of her class. (Ex. 2, T.H. Aff. at 1.) Neither Candice nor T.H. has ever been disciplined at school. (Ex. 1, C. Herrera Aff. at 1; Ex. 2, T.H. Aff. at 1.) Candice and T.H. looked forward to attending the annual Capital High School Prom on April 16, 2011, at the Santa Fe Convention Center. Candice had worked with other students and faculty on the Planning Committee, which helped organize the event. (Ex. 1, C. Herrera Aff. at 3.) Candice devoted hours to decorating the Convention Center for the Prom. (Id.) T.H. had been invited to the Prom by an upper-class student and was excited to attend. (Ex. 2, T.H. Aff. at 3.) I. Invasive Student Searches Conducted At The Capital High School Prom Candice and T.H. arrived at the Prom together, each wearing a floor-length sleeveless dress. (Ex. 1, C. Herrera Aff. at 4.) Once inside the Convention Center, Candice and T.H. presented their student identification cards and tickets to Capital High School employees and agents stationed by the entrance. (Id.; Ex. 2, T.H. Aff. at 3.) Candice and T.H. were then directed to join a line of female students. Male students were separated into a different line a few feet away. (Ex. 1, C. Herrera Aff. at 4; Ex. 2, T.H. Aff. at 4.) When Candice reached the front of the line, a security guard from ASI, which had been engaged by SFPS to provide security at the event, directed her to spread her arms and legs. (Ex. 1, C. Herrera Aff. at 6-7.) The guard patted down Candice s arms and legs and then placed 3

4 Case 6:11-cv Document 2-1 Filed 05/17/11 Page 4 of 26 her hands on Candice s breasts and shook them. (Id.) She next grabbed the center of Candice s bra and shook it. (Id. at 7.) The guard then began to raise Candice s dress. (Id. at 8.) Candice instinctively placed her hands on her thighs to prevent the dress from being lifted up. (Id.) The school security guard ordered Candice to remove her hands and proceeded to lift Candice s dress above the middle of her thighs and examined her bare legs. (Id.) Shocked and uncomfortable with the nature of the search, Candice looked over to Principal Romero who was only a few feet away. (Id. at 9.) Candice made eye contact with Principal Romero, but she did not stop the search. (Id.) T.H. experienced a similarly violating search of her body. After patting down T.H. s hips, the guard grabbed the center of T.H. s bra and shook it. (Ex. 2, T.H. Aff. at 6.) She then cupped T.H. s breasts with her hands and shook her breasts. (Id.) The guard lifted up T.H. s dress to around the middle of her thighs and ran her hands up and down T.H. s bare legs. (Id. at 7.) T.H. felt embarrassed and exposed with her dress pulled up in public, especially because other students and school staff were standing near her. (Id.) Both Candice and T.H. were also subjected to wand-searches of their bodies. (Ex. 1, C. Herrera Aff. at 11; Ex. 2, T.H. Aff. at 5.) Their shoes were also inspected. (Ex. 1, C. Herrera Aff. at 8; Ex. 2, T.H. Aff. at 7.) Candice, who was carrying a purse and jacket, was directed to hand them over to be searched. (Ex. 1, C. Herrera Aff. at 12.) Candice was ordered to remove the battery from her cell phone and the memory card from her camera for inspection. (Id. at 13.) Capital High School staff, including Principal Romero, took Candice s purse and jacket. (Id. at 12.) Everything in Candice s purse was dumped onto a table, sorted, and searched. (Id.) School staff confiscated Candice s hand lotion, manicure kit, and a bottle of prescription medicine. (Id.) Candice had been experiencing bouts of dizziness and brought her prescription 4

5 Case 6:11-cv Document 2-1 Filed 05/17/11 Page 5 of 26 medication in its prescription bottle in an effort to avoid fainting if she became dizzy with the lights and noise of Prom. (Id.) When Candice asked for her medication back as she was leaving, she was told it had been discarded. (Id. at 16.) The rest of the items taken from her were in a box with other students confiscated possessions and available for students to sort through as they left Prom. (Id.) Candice and T.H. were extremely upset by the searches they experienced at Prom. (Ex. 1, C. Herrera Aff. at 10, 18, 20; Ex. 2, T.H. Aff. at 6, 7, 10.) They felt violated, exposed, embarrassed, and uncomfortable by the searches, which not only involved physical touching of their bodies and Candice s purse being dumped out on a table, but also were done in public view in the lobby of the Convention Center just feet from other students, of both sexes, school staff, and other strangers. All students were subjected to body and possessions searches when they entered Prom and others were searched in the same highly invasive manner that Candice and T.H. were searched. (Ex. 1, C. Herrera Aff. at 15; Ex. 2, T.H. Aff. at 11.) II. Plaintiffs Thwarted Attempts To Prevent Further Unlawful Searches After the Prom, Vincent Herrera, Candice and T.H. s father, spoke repeatedly with school administrators and ASI representatives in an effort to ensure his daughters would not be unlawfully searched at future school events. In response, SFPS has only confirmed that it will continue to search students without reasonable suspicion. Soon after the Prom, Mr. Herrera left a message for Capital High School Principal Romero about the searches conducted at the Prom. (Ex. 3, V. Herrera Aff. at 9.) Principal Romero did not respond to Mr. Herrera s call for several days. (Id. at 10.) Principal Romero then called Candice into her office and scolded Candice for not complaining directly to her about the searches. (Ex. 1, C. Herrera Aff. at 21.) With Candice in her office, Principal Romero called Mr. Herrera and confirmed that searches had occurred. (Ex. 3, V. Herrera Aff. at 10.) 5

6 Case 6:11-cv Document 2-1 Filed 05/17/11 Page 6 of 26 Mr. Herrera expressed to Principal Romero that the searches were unlawful because the school lacked reasonable suspicion. Principal Romero replied that the school was free to search students at school events. (Id. at 11.) After Principal Romero directed Candice to write a statement describing the searches, she told Candice that if the school security guard did not admit to touching Candice s breasts, the school would take no further action regarding the searches. (Ex. 1, C. Herrera Aff. at 22.) Principal Romero s response left Candice in tears. (Id.) Mr. Herrera also spoke with Mark Archuleta, a representative of ASI whose guards participated in the searches and who regularly provide security at Capital High School. (Ex. 3, V. Herrera Aff. at 13.) Mr. Archuleta informed Mr. Herrera that the searches at the Capital High School Prom were conducted in accordance with instructions from SFPS. (Id.) Mr. Herrera also met with Associate Superintendent Lujan. (Id. at 14.) Ms. Lujan listened to Mr. Herrera explain why the suspicionless searches were unlawful, but responded by maintaining that the school was free to search students at school functions without reasonable suspicion. (Id. at 15.) Associate Superintendent Lujan nevertheless indicated that she would raise the issue with Superintendent Bobbie Gutierrez and report back to Mr. Herrera on May 5. (Id.) When Mr. Herrera attempted to meet with Associate Superintendent Lujan on May 5, he was told she had not yet raised the issue with Superintendent Gutierrez. (Id. at 16.) On May 6, Mr. Herrera again spoke with Associate Superintendent Lujan at an awards ceremony at Capital High School where Candice was being honored for her academic excellence. (Id. at 16.) Superintendent Lujan told Mr. Herrera that she would discuss the issue with Superintendent Gutierrez on May 9 and follow up with Mr. Herrera later that day. (Id.) On May 11, Associate Superintendent Lujan contacted Mr. Herrera and indicated that SFPS maintains that it is free to search students without reasonable suspicion at school events. 6

7 Case 6:11-cv Document 2-1 Filed 05/17/11 Page 7 of 26 (Id. at 18.) She further noted that searches would be conducted at the upcoming Santa Fe High School Prom on May 21 and would only be conducted in private rather than in public view like the Capital Prom searches. (Id.) III. SFPS s Custom And Practice Of Unlawfully Searching Students The searches of Candice, T.H., and other students at the Capital High School Prom directly violated SFPS s own Code of Conduct, which is provided to students and parents each year. (Ex. 4, Excerpt from SFPS Code of Conduct at 57.) According to the Code of Conduct, students may not be subjected to pat-down searches absent individualized reasonable suspicion. (Id.) The Code further requires that unless there is imminent danger of grave bodily harm, every effort must be made to contact a child s parents and allow them to be present prior to searching any student. (Id. at 58.) According to the Code, searches of students personal property, including bags or cell phones, similarly require individualized reasonable suspicion. (Id.) Candice, T.H., and other students were subjected to invasive physical searches of their bodies, purses, and bags without any individualized reasonable suspicion that they were violating school rules, or state or federal law. In addition, no effort was made to contact the students parents prior to the searches. (Ex. 3, V. Herrera Aff. at 3.) Despite its policy, SFPS maintains a custom and practice of searching students without reasonable suspicion at school events. Pursuant to this custom and practice, SFPS students and their belongings have been searched at other school events in the past, including the 2010 Santa Fe High School Prom, the September 2010 Capital High School Homecoming Dance, and the 2010 Capital High School Graduation. (Ex. 5, May 18, 2010 SFPS Board of Education Minutes at 10; Ex. 1, C. Herrera Aff. at ) SFPS administrators are aware that students are being searched without any individualized suspicion of wrongdoing at these school functions and have expressly claimed the authority to conduct such searches. The searches conducted on students at last year s prom were 7

8 Case 6:11-cv Document 2-1 Filed 05/17/11 Page 8 of 26 discussed during an official Santa Fe Public Schools Board of Education meeting at which the Superintendent of Santa Fe Public Schools was present. (Ex. 5, May 18, 2010 SFPS Board of Education Minutes at 10.) Similarly, the Deputy Superintendent asserted during a Board of Education meeting that the school is free to search students without cause. (Ex. 6, July 8, 2010 SFPS Board of Education Minutes at 3-4.) Most recently, in response to Mr. Herrera s complaints regarding the offensive and degrading searches of his daughters, Associate Superintendent Lujan confirmed the belief that SFPS may search students without reasonable suspicion at school events and that SFPS intends to continue to conduct such searches. (Ex. 3, V. Herrera Aff. at 18.) IV. SFPS s Express Intention To Expose Students To Additional Unlawful Searches In The Immediate Future Candice Herrera and other students will be subjected to searches without individualized suspicion at the May 21, 2011 Santa Fe High School Prom and Capital High School s May 27, 2011 Graduation Ceremony. Capital High School has posted graduation information on its website. The instructions indicate that graduating students will be searched for distracting contraband, which apparently includes the flowers, leis, and cell phones that have been banned from the ceremony. (Ex. 7, Capital High School 2011 Graduation Information Sheet at 2.) Capital High School students were also searched last year and at least one student has indicated that he was told by school officials that the search was for such innocuous items as beach balls. (Ex. 1, C. Herrera Aff. at 27.) Candice Herrera is a graduating senior at Capital High School and intends to participate in her graduation ceremony on May 27. She and her family reasonably fear that she will be searched without reasonable suspicion for distracting contraband at graduation. (Id. at 28-29; Ex. 3, V. Herrera Aff. at 20.) 8

9 Case 6:11-cv Document 2-1 Filed 05/17/11 Page 9 of 26 In addition, Associate Superintendent Lujan confirmed that students attending the Santa Fe High School Prom on May 21, 2011, will be subject to search. (Ex. 3, V. Herrera Aff. at 18.) Candice Herrera already has a ticket and plans to attend the Santa Fe High School Prom. (Ex. 1, C. Herrera Aff. at 30.) She and her family reasonably fear that she will be unlawfully searched without reasonable suspicion at the upcoming Prom. (Id. at 28-29; V. Herrera Aff. at ) LEGAL STANDARD In order to prevail on a motion for a temporary restraining order a plaintiff must show that: (1) she will suffer irreparable injury unless a temporary restraining order issues; (2) there is substantial likelihood that she will prevail on the merits; (3) the threatened injury to plaintiff outweighs whatever damage the proposed restraining order may cause the defendant; and (4) the restraining order would not be adverse to the public interest. Resolution Trust Corp. v. Cruce, 972 F.2d 1195, 1198 (10th Cir. 1992) (citing Tri-State Generation & Transmission Ass n, Inc. v. Shoshone River Power, Inc., 805 F.2d 351, 355 (10th Cir. 1986)). None of these factors is individually determinative, but instead, the court must weigh each factor against the other factors and against the form and magnitude of relief sought. See, e.g., Kansas Hosp. Ass n, 835 F. Supp. 1548, 1552 (D. Kan. 1993). In the course of such a weighing, if the court finds that the first, third, and fourth factors tip strongly in [the movant s] favor, the test is modified, and the moving party may meet the requirement for showing success on the merits by showing that questions going to the merits are so serious, substantial, difficult, and doubtful as to make the issue ripe for litigation and deserving of more deliberate investigation. Okla. ex rel. Okla. Tax Comm n v. Int l Registration Plan, Inc., 455 F.3d 1107, 1113 (10th Cir. 2006) (quotation marks omitted). The fundamental purpose of a temporary restraining order is to maintain the status quo and to ensure that the relevant circumstances are not so changed that the ultimate decision on the 9

10 Case 6:11-cv Document 2-1 Filed 05/17/11 Page 10 of 26 merits is meaningless. See, e.g., Keirnan v. Utah Transit Auth., 339 F.3d 1217, 1220 (10th Cir. 2003) ( In issuing a preliminary injunction, a court is primarily attempting to preserve the power to render a meaningful decision on the merits. ) quoting Tri-State Generation, 805 F.2d at 355. ARGUMENT I. Plaintiff Candace Herrera Will Suffer Irreparable Harm If SFPS Is Permitted To Continue Its Custom And Practice Of Searching All Attendees Of SFPS Events The first question when considering a motion for temporary restraining order is whether the movant will suffer irreparable injury. It is clear, here, that Ms. Herrera will suffer irreparable harm if SFPS is permitted to search her at future school events. Ms. Herrera s ceremony for graduation from Capital High School is May 27, 2011, and she has been invited to the Santa Fe High School Prom being held on May 21, Absent an order directing SFPS officials and the Capital High School and Santa Fe High School principals to change their custom and practice of searching students at large student gatherings, Ms. Herrera and other students will be subjected to the same type of invasive and degrading search they suffered at the Capital High School Prom. Capital High School officials have given notice that they will have all graduating seniors searched when they enter the graduation ceremonies. The publicly posted information sheet for the Capital High School graduation states that [students] will enter through the front gymnasium doors and must carry their gown on their arm. They will be searched for distracting contraband. (Ex. 7, Capital High School 2011 Graduation Information Sheet at 2.) SFPS officials have similarly advised that students attending with Santa Fe High School Prom will be searched. (Ex. 3, V. Herrera Aff. at 18.) SFPS officials continue to insist that they have the right to search any student whenever they desire. (Id.) Ms. Herrera therefore, is faced with being subjected to an unconstitutional search if she attends her own graduation or the Santa Fe High School Prom. Such a harm is irreparable. 10

11 Case 6:11-cv Document 2-1 Filed 05/17/11 Page 11 of 26 A. The Violation Of A Person s Constitutional Rights Causes, As A Matter Of Law, Irreparable Injury As a general matter, the deprivation, or threat of deprivation, of a constitutional right is sufficient, standing alone, to constitute irreparable injury. Elrod v. Burns, 427 U.S. 347, (1976) (holding that a loss of First Amendment rights constitutes irreparable harm); Kikumura v. Hurley, 242 F.3d 950, 963 (10th Cir. 2001) ( When an alleged constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary. ) quoting Wright, Miller and Kane, FEDERAL PRACTICE AND PROCEDURE: CIVIL 2D (1995); McClendon v. City of Albuquerque, 272 F. Supp.2d 1250 (D.N.M. 2003). As a result, courts have regularly found that being subjected to an unconstitutional search causes irreparable harm. See, e.g., Covino v. Patrissi, 967 F.3d 73 (2d Cir. 1992); Marriott v. County of Montgomery, 426 F. Supp.2d 1 (N.D.N.Y. 2006); Dodge v. County of Orange, 282 F. Supp.2d 41 (S.D.N.Y. 2003). Once Ms. Herrera attends the Capital High School Graduation or the Santa Fe High School Prom and is forced to acquiesce to an unconstitutional search as a condition of attendance, later injunctive relief cannot restore the constitutional rights that have been violated. B. Ms. Herrera s Theoretical Ability To Avoid A Violation Of Her Constitutional Rights By Not Attending Her Graduation Or The Santa Fe High School Prom Does Not Alter The Irreparable Injury Analysis. SFPS officials cannot avoid a finding of threatened irreparable injury by suggesting that Ms. Herrera can avoid violations of her constitutional rights by not attending her graduation or the Santa Fe High School Prom. It is well-established that a government may not condition the receipt of a benefit or privilege on the relinquishment of a constitutional right. See, e.g., Bourgeois v. Peters, 387 F.3d 1303, 1324 (11th Cir. 2004); Pike v. Gallagher, 829 F. Supp. 1254, 1263 (D.N.M. 1993); see also, Johnston v. Tampa Sports Auth., 530 F.3d 1320, 1329 (11th Cir. 2008) (noting and citing cases holding that a search upon entry to a large public gathering is unconstitutional where it requires patron to choose between assertion of constitutional right and 11

12 Case 6:11-cv Document 2-1 Filed 05/17/11 Page 12 of 26 losing admission to the event). SFPS may not, therefore, force Ms. Herrera to choose between these school events and preserving her constitutional rights to be free from an unreasonable search. Ms. Herrera is certainly entitled to the benefit of graduation, which is provided to every graduating senior in the city, and to share with her families and friends the celebration and culmination of four years of hard work, which has led to her graduating in the top 10 percent of her class and receiving numerous academic and leadership awards. But, under SFPS s now longstanding custom and practice, Ms. Herrera can only enjoy the benefit if she subjects herself to an offensive, humiliating, and ultimately unconstitutional search of her body and possessions and suffers the resulting irreparable injury. II. There Is Substantial Likelihood That Ms. Herrera Will Prevail On The Merits Of Her Claim Under The United States Constitution Against SFPS. Ms. Herrera asserts that SFPS s custom and practice of subjecting all people attending large school events to searches of their person that often involve physical touching of the body and searches of all bags and purses without reasonable suspicion and without unique circumstances justifying a blanket search violates her rights under the Fourth Amendment of the U.S. Constitution. There is a substantial likelihood that Ms. Herrera will prevail on this claim and that the Court will find that the search of Ms. Herrera and her classmates at the Capital High School Prom and the planned searches of students at the Capital High School Graduation and Santa Fe High School Prom are unconstitutional. A. The Fourth Amendment Prohibits The Searches Conducted By SFPS. The Fourth Amendment provides that [t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. U.S. CONST. amend. IV. The prohibition against unreasonable search and seizures is extended to state officers, including school officials, by the Fourteenth Amendment. See New Jersey v. T.L.O., 469 U.S. 325, (1985). 12

13 Case 6:11-cv Document 2-1 Filed 05/17/11 Page 13 of Generally, Searches In The School Context Must Be Supported By Reasonable Suspicion The touchstone for determining the constitutionality of a governmental search is the reasonableness of the search. See, e.g., Board of Educ. of Indep. Sch. Dist. No. 92 of Pottawatomie County v. Earls, 536 U.S. 822, 828 (2002). The reasonableness of a search can vary based on the context and nature of the search. A typical search conducted by law enforcement officers in an attempt to discover evidence of a crime must be supported by probable cause. See, e.g., Skinner v. Railway Labor Executives Ass n, 489 U.S. 602, 619 (1989). In certain other contexts, however, courts have found the existence of special needs that make the probable cause requirement for a search impracticable. Griffin v. Wisconsin, 483 U.S. 868, 873 (1987). One of those contexts is the school setting where a requirement that searches be based upon probable cause would undermine the substantial need of teachers and administrators for freedom to maintain order in the schools. T.L.O., 469 U.S., at 341. Accordingly, the Supreme Court has concluded that probable cause is not required to conduct a search of a student. Nonetheless, it is well-settled that students do not shed their constitutional rights... at the schoolhouse gate, Tinker v. Des Moines Independent Community Sch. Dist., 393 U.S. 503, 506 (1969), and as a general rule, officials still must have reasonable, individualized suspicion before conducting a search of a student in the context of school or a school-related activity. T.L.O., 469 U.S. at 341. As described by the Supreme Court, a search of a student by or at the direction of school officials is constitutional under the reasonable suspicion standard only if there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school. T.L.O., 469 U.S. at 342. Furthermore, if there are sufficient grounds for suspicion, the search itself must be reasonably related in scope to the 13

14 Case 6:11-cv Document 2-1 Filed 05/17/11 Page 14 of 26 circumstances which justified the interference in the first place. Id. at 341. Therefore, the measures adopted [must be] reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction. Id. at 342. SFPS s blanket searches at large student gatherings necessarily fail the T.L.O. standard. By their very nature, blanket searches are not based on individualized suspicion of wrongdoing, but instead on a generalized apprehension that some people may engage in undesirable conduct. For example, when Ms. Herrera arrived at the Capital High School Prom, there was absolutely no basis for any school or security official to suspect that she had violated or was violating any rule or law. As a result, there existed no reasonable suspicion to search her. Similarly, SFPS has announced its intention to search Ms. Herrera and other graduating seniors at the Capital High School Graduation (Ex. 7, Capital High School 2011 Graduation Information Sheet at 2), but the school clearly cannot have, weeks ahead of the event, reasonable suspicion that Ms. Herrera or any other particular student will violate some rule or law during graduation. 2. Suspicionless Searches In The School Context Are Only Permissible Where There Exists A Minimal Privacy Interest And An Important Governmental Interest Is In Jeopardy. The Supreme Court has recognized that despite the general reasonable suspicion requirement, a search in the school context may still be reasonable without such suspicion in limited circumstances[] where the privacy interests implicated by the search are minimal, and where an important governmental interest furthered by the intrusion would be placed in jeopardy by a requirement of individualized suspicion. Vernonia Sch. Dist. v. Acton, 515 U.S. 646, 674 (1995) quoting Skinner, 489 U.S. at 624 (emphasis in original). When considering whether a particular search fits within this limited exception, courts must weigh, on one side, the scope of the privacy interest at issue and the character of the intrusion on that interest against, on the other side, the nature and immediacy of the governmental interest at issue and the efficacy of the means used to address the threat to that interest. See Vernonia, 515 U.S. at

15 Case 6:11-cv Document 2-1 Filed 05/17/11 Page 15 of 26 An analysis of these factors and the fact that no court has ever upheld a suspicionless search as intrusive as those regularly conducted by SFPS, Doe v. Little Rock Sch. Dist., 380 F.3d 349, 355 (8th Cir. 2004), demonstrate that SFPS s custom of searching students bodies and possessions as a condition of attending student gatherings does not fall within the limited Vernonia exception to the reasonable suspicion requirement. i. Students Have High Expectations Of Privacy In Their Bodies And Possessions The Vernonia exception to the reasonable suspicion requirement can only apply where the privacy interest at issue is minimal. A student s expectation of privacy in her body and possessions is significant and certainly far more than minimal. The Supreme Court has stated that [a] search of a child s person or of a closed purse or other bag carried on her person... is undoubtedly a severe violation of subjective expectations of privacy. T.L.O., 469 U.S. at Similarly, in considering a school s practice of searching students bags, and even in the absence of any search of the students bodies, the Eighth Circuit found that the students privacy interests were violated in a major way and noted that [s]tudents often carry items of a personal or private nature in their pockets and bags, and many students (whether or not they are carrying contraband) must surely feel uncomfortable or embarrassed when officials decide to rifle through their personal belongings. Doe, 380 F.3d at SFPS s custom and practice of conducting searches that involve the touching of bodies, touching and lifting of students clothing, inspection of all contents of bags and purses, and wanding of students implicate substantial privacy interests, which precludes application of the Vernonia exception, which is only potentially applicable when the privacy interests at issue are minimal and negligible. Vernonia, 515 U.S. at ; Pottawatomie, 536 U.S. at In addition, the Supreme Court found in Vernonia that the plaintiffs, who were student athletes, had lower privacy interests than other students because participation in extracurricular athletics typically requires changing in locker rooms which are not notable for the privacy they afford and students who voluntarily participate in school 15

16 Case 6:11-cv Document 2-1 Filed 05/17/11 Page 16 of 26 ii. SFPS s Searches Are Highly Intrusive Consideration of the nature of SFPS s intrusion on students privacy interests in their bodies and possessions further demonstrates that the searches are unreasonable and that the limited Vernonia exception does not apply. A District Court in Minnesota considering searches similar to those conducted by SFPS described the searches as being as intrusive as any government search that any American citizen is likely to experience in her lifetime, unless she is incarcerated. Hough v. Shakopee Public Sch., 608 F. Supp 2d 1087, 1105 (D. Minn. 2009). In Hough, students were asked to remove their shoes and socks, turn down the waistband of their pants, empty their pockets, pull up their pant legs, and submit to a pat-down. In addition, students backpacks and bags were searched. Id. at The court emphasized that [t]he students not only had their backpacks, purses, and the contents of their pockets searched, but students were required to partially disrobe (i.e., to take off their shoes and socks, and sometimes coats, sweaters, or sweatshirts) and to permit school employees to look inside their clothes (i.e., under their waistbands and pant legs). And, most importantly, the students were touched. Id. at 1105 (emphasis in original). These searches, which the district court found extraordinarily intrusive, id., did not involve the cupping and shaking of breasts or the grabbing of bras and therefore were less intrusive than the searches SFPS regularly conducts on its students. 2 In addition, far less intrusive searches than those conducted here have been found to be unreasonable. For example, in B.C. and Jones, the courts found that searches involving dogs athletics have reason to expect intrusions upon normal rights and privileges, including privacy. Vernonia, 515 U.S. at The SFPS searches fall just short of what states have legally defined as a strip search. A strip search may occur even when a person is not fully disrobed. Amaechi v. West, 237 F.3d 356, 365 & n. 15 (4th Cir. 2001) (noting that states define strip search in a uniform fashion, which includes the conduct of arranging clothing to permit a visual inspection of undergarments.) 16

17 Case 6:11-cv Document 2-1 Filed 05/17/11 Page 17 of 26 sniffing students were highly intrusive. B.C. v. Plumas Unified Sch. Dist., 192 F.3d 1260 (9th Cir. 1999); Jones v. Latexo Indep. Sch. Dist., 499 F. Supp. 223 (E.D. Tex. 1980). The fact that SFPS conducts the searches in a public place in full view of fellow students of both sexes, as well as teachers, staff, security personnel, and other strangers, only heightens the level of intrusion. (Ex. 1, C. Herrera Aff. at 17; Ex. 2, T.H. Aff. at 8.) The physical touching of students bodies makes the intrusive nature of the searches clear, but SFPS s custom of searching the students possessions is also inappropriate. In Doe, the Eighth Circuit considered a search where students in a classroom were directed to remove everything from their pockets and place all of their belongings, including their backpacks and purses, on the desks. Then, while the students waited outside their classroom, school personnel searched the students belongings. The Eighth Circuit found this search highly intrusive and found no cases indicating that [searches of students bags and the contents of pockets] in schools pass constitutional muster absent individualized suspicion, consent or waiver of privacy interests by those searched, or extenuating circumstances that pose a grave security threat. Doe, 380 F.3d at 355. SFPS s custom and practice of searching students possessions is far more intrusive than the search considered in Doe. Ms. Herrera and other students did not just have their possessions searched but had items of a personal and private nature dumped on a table in full view of everyone else waiting to enter Prom. (Ex. 1, C. Herrera Aff. at 12, 16.) SFPS s searches of students bodies and possessions separately, and certainly in combination, constitute high levels of intrusion on students significant privacy interests and further confirms that they cannot be justified under Vernonia. iii. SFPS Can Identify No Specific Governmental Interest That Would Be Jeopardized If It Does Not Search Students In considering the constitutionality of SFPS s custom of searches, the students significant privacy interests and the highly intrusive nature of the searches must be weighed 17

18 Case 6:11-cv Document 2-1 Filed 05/17/11 Page 18 of 26 against the need for, and the effectiveness of, the searches in furthering the government interest at stake and whether that government interest would be jeopardized in absence of the searches. SFPS s publicly articulated reason for searches of graduating seniors at the Capital High School graduation ceremony is certainly not a sufficiently important governmental interest. The school states on its website that students entering graduation will be searched for distracting contraband. (Ex. 7, Capital High School 2011 Graduation Information Sheet at 2 (emphasis added).) In past years, this has meant searches for and confiscation of items such as blow-up beach balls. (Ex. 1, C. Herrera Aff. at 27.) This year, the school states that the searches will be used to identify and confiscate flowers, leis, and cell phones. (Ex. 7, Capital High School 2011 Graduation Information Sheet at 2.) Keeping these items away from the graduation ceremony falls well short of the important interests that courts require to justify the most minimal intrusions into students privacy, and come nowhere near the level of governmental interest that might theoretically justify the highly intrusive searches conducted by SFPS. Even if the SFPS searches were based on more significant concerns such as to find alcohol, drugs, or weapons, SFPS cannot show any circumstances unique to Santa Fe public schools that would justify the highly intrusive searches for these reasons. A generalized suspicion that students may bring alcohol, drugs, or weapons to a student event is insufficient to justify any search. As the Supreme Court made clear long ago, an official may not search all persons present at a particular location simply because of a generalized suspicion that somebody in attendance might possess contraband. See Carroll v. United States, 267 U.S. 132, (1925). Instead, concrete, particularized evidence must be presented in support of the basis for the search. In Doe, the school district attempted to justify its searches of students possessions by asserting concerns about weapons and drugs in its schools. Doe, 380 F.2d at 356. The Eighth Circuit, however, held that the district must present specific evidence of a unique magnitude of a drug or violence problem in the district s schools because [a]ll schools surely have an interest in 18

19 Case 6:11-cv Document 2-1 Filed 05/17/11 Page 19 of 26 minimizing the harm that the existence of weapons and controlled substances might visit upon a student population, but public schools have never been entitled to conduct random, full-scale searches of students personal belongings because of a mere apprehension. Id. Similarly, abstract concerns about drugs at Quincy High School in California were insufficient to justify the use of a dog to sniff students for drugs as they exited a classroom. B.C., 192 F.3d at The Ninth Circuit found that absent specific evidence of a drug crisis or problem in that particular high school, the school district could not meet its burden of showing that the governmental interest in deterring student drug use would be placed in jeopardy by a requirement of individualized suspicion. Id. at As a result, the court found the dog sniff searches unreasonable. Id. SFPS s inability to forward a justification for the searches is further evidenced by school officials responses when challenged regarding the searches. Neither District officials nor Capital High School officials can identify specific governmental interests as a basis for the searches, but instead assert that they have the unfettered right to search students in the schoolsetting without reasonable suspicion. (Ex. 3, V. Herrera Aff. at 11, 15, ) In addition, if SFPS had a significant governmental interest that might be jeopardized by a failure to conduct the searches, it would have been considered and debated by the policymaking officials at particular schools or at the district level and a search policy tailored to ensure the protection of that specific, significant interest would have been adopted. But that has not occurred. Instead, SFPS s custom and practice of searches stands in direct violation of the policy adopted by the District, which requires individualized reasonable suspicion before conducting a search. (Ex. 4, Excerpt from SFPS Code of Conduct at 57.) SFPS s searches, therefore, are not justified by a considered analysis of the best means to further specific, significant governmental interest, but instead appear to be based on mere convenience searching students for distracting contraband by rifling through possessions and conducting pat-downs is an easy way to enforce a 19

20 Case 6:11-cv Document 2-1 Filed 05/17/11 Page 20 of 26 particular, yet insignificant, graduation rule but, the constitutional rights of students cannot be trampled in the name of expediency. iv. The Challenged Searches Are Not Effective In Furthering Any Theoretical Governmental Interest Finally, even if SFPS could articulate a sufficient governmental interest for adopting the custom and practice of highly intrusive searches, it must also show that the searches are effective in furthering the governmental interest. SFPS can make no such showing. In fact, there appears to be no relationship between SFPS s searches and any governmental interest. At the Capital High School Prom, for example, Plaintiff Candice Herrera had three items confiscated: prescription medicine, lotion, and nail clippers. (Ex. 1, C. Herrera Aff. at 12.) SFPS will be hard-pressed to show what interest was furthered by searching for and confiscating these items. Similarly, at the upcoming Capital High School graduation, all graduating students will be searched and have their cell phones confiscated. We will collect ALL cell phones.. You will not be allowed to have a cell phone in your possession (Ex. 7, Capital High School 2011 Graduation Information Sheet at 2 (emphasis in original).) With the possible exception of prison, there may be no public place in America outside a SFPS event where a person could not have a phone, nail clippers, or lotion. This includes places where society supports the most rigorous levels of security such as in airports and government buildings. The items SFPS searched for and confiscated from Ms. Herrera and other students can be found in airports and government buildings because there is no possible governmental reason that is furthered by confiscating them. 20

21 Case 6:11-cv Document 2-1 Filed 05/17/11 Page 21 of 26 B. SFPS Can Raise No Persuasive Defense To The Showing Of A Likelihood Of Success On The Merits 1. Student Acquiescence To A Search As A Condition Of Entering A School Gathering Is Not Implied Consent To Being Searched SFPS officials cannot show that students give implied consent to be searched when they submit to searches at the entrance of SFPS-sponsored events. A defendant faces a strict burden to prove that the totality of the circumstances establishes that a person has impliedly waived her Fourth Amendment rights when she submits to a search. Schneckloth v. Bustamonte, 412 U.S. 218, 222, (1973); U.S. v. Harrison, -- F.3d WL (10th Cir. May 11, 2011). SFPS officials cannot meet that standard. All SFPS officials would be able to show is that students acquiesce to the searches when they enter the events. It is well-settled, however, that mere acquiescence is insufficient to prove consent. When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given. This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority. Bumper v. North Carolina, 391 U.S. 543, (1968); see also Pike, 829 F. Supp. at 1262 (D.N.M. 1993) (rejecting the argument that plaintiff consented to search when she voluntarily submitted to a urinalysis test because defendants showed nothing more than acquiescence to a claim of lawful authority, which is insufficient to prove consent). Consistent with this precedent, the First Circuit has found that there is no implied consent when visitors submit to a search as a condition of visiting a person in prison because, government may not condition access to even a gratuitous benefit or privilege it bestows upon the sacrifice of a constitutional right. Blackburn v. Snow, 771 F.2d 556, 568 (1st Cir. 1985). Here, no facts suggest that students consented to searches. First, students are not usually informed before the event that they will be searched or of the nature and extent of searches. (Ex. 1, C. Herrera Aff. at 19; Ex. 2, T.H. Aff. at 9.) Nor are students told the object of the 21

22 Case 6:11-cv Document 2-1 Filed 05/17/11 Page 22 of 26 searches or what items might be confiscated. (Ex. 1, C. Herrera Aff. at 19; Ex. 2, T.H. Aff. at 9.) Second, students are not told of their right to refuse to be searched but are explicitly or implicitly told that entry to the event is conditioned on submission to a search. (Ex. 1, C. Herrera Aff. at 5; Ex. 2, T.H. Aff. at 9.) Third, parents are not told that their minor children will be searched or given an opportunity to refuse searches on behalf of their children, despite the fact that the Code of Conduct requires such notification prior to conducting such searches. (Ex. 3, V. Herrera Aff. at 3; Ex. 4, Excerpt from SFPS Code of Conduct at 58.) Fourth, SFPS officials rebuffing of Vincent Herrera s attempts to ensure that his daughters will not be searched at future events indicates that any refusal to be searched would preclude entry to those events. (Ex. 3, V. Herrera Aff. at 11, 15, 18.) The totality of circumstances therefore indicates that students who submit to searches as a condition of attending a SFPS event have not consented to the searches. 2. SFPS Is Responsible For All Aspects Of The Searches Conducted At SFPS-Sponsored Events ASI s participation in some aspects of the searches of students does not alter the analysis of SFPS s responsibility and liability for the harm caused by the searches. First, SFPS s staff conducted unconstitutional searches themselves. At the 2011 Capital High School Prom, school staff searched students bags and purses. (Ex. 1, C. Herrera Aff. at 5.) SFPS is liable for these searches and its officials have the authority to direct its employees to cease such searches at future events. Second, SFPS staff witnessed all aspects of the searches. At the 2011 Capital High School Prom, the unconstitutional searches were witnessed by Principal Romero, the final decision-making authority at the school. Nonetheless and despite her authority, she made no effort to halt the searches. (Ex. 1, C. Herrera Aff. at 9; Ex. 2, T.H. Aff. at 8.) 22

23 Case 6:11-cv Document 2-1 Filed 05/17/11 Page 23 of 26 Third, ASI acts as an instrument and agent of the state when it searches students at the entrance of SFPS events. ASI s searches are transformed into governmental searches implicating the Fourth Amendment because ASI conducts the searches at SFPS s direction. See Pleasant v. Lovell, 876 F.2d 787, 796 (10th Cir. 1989). The determination of whether a search by a private entity is properly considered a governmental search is based on a two-factor inquiry: (1) did the government know and acquiesce in the search; and (2) whether the entity performing the search intended to assist the state or to further its own ends. See, e.g., U.S. v. Smythe, 84 F.3d 1240, (10th Cir. 1996); Kerns v. Bd. of Com rs of Bernalillo County, 707 F. Supp.2d 1190 (D.N.M. 2010). There is no question that SFPS knew of and acquiesced to ASI s participation in the searches. SFPS directed ASI to conduct the searches and at the Capital High School Prom, the highest ranking official at the school watched and acquiesced in the searches. (Ex. 1, C. Herrera Aff. at 9; Ex. 2, T.H. Aff. at 8.) ASI, as a contractor for SFPS, performed the searches in an effort to assist SFPS, not to further its own ends. Since ASI was acting in concert with SFPS and carrying out SFPS s policy and practice in performing the searches, ASI s searches constitute state action. See Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442, 1453 (10th Cir. 1995) (recognizing that a private entity acts as a state actor when it is a willful participant in joint action with the State or its agents ). Accordingly, ASI acted as an instrument and agent of SFPS when conducting the searches. 3. SFPS Has No Greater Right To Search Students Off Campus Than On Campus The Capital High School Prom occurred off the Capital High School campus, as will the Santa Fe High School Prom. (Ex. 1, C. Herrera Aff. at 2, 30.) That fact does not alter the analysis of the constitutionality of SFPS s searches. First, courts have generally found that the reasonableness standard applies to searches of students conducted off school grounds by 23

24 Case 6:11-cv Document 2-1 Filed 05/17/11 Page 24 of 26 school officials, particularly where, as here, the students are under the care and supervision of school officials or staff when the searches occur. See, e.g., Shade v. City of Farmington, 309 F.3d 1054 (8th Cir. 2002). Second, the reasonable suspicion standard used to review a search in the school context is lower than the standard used to review searches in other contexts. T.L.O., 469 U.S. at Accordingly, if the reasonable suspicion standard does not apply to a school official-directed search of students entering an off-campus prom, the school officials would have a greater burden to show their search was justified. III. The Threatened Injury To Ms. Herrera Outweighs Any Damage That Could Be Caused Defendants The injury threatened to Ms. Herrera when she attends the Santa Fe High School Prom and Capital High School Graduation if SFPS is not ordered to cease its custom and practice of searches is a loss of constitutional rights. The deprivation of a constitutional right is a significant and irreparable injury to the individual holding the right. See Elrod, 427 U.S. at Furthermore, as detailed below, such a deprivation would also be contrary to the interests of the public at large, which has an interest in the guarantee of all persons constitutional rights. See, e.g., Sammartano v. First Judicial Court, in and for County of Carson City, 303 F.3d 959, 974 (9th Cir. 2002). The threatened injury to Ms. Herrera and the community in the absence of an injunction is, therefore, substantial. On the other hand, SFPS officials will be unable to identify specific, concrete damage they would suffer if the injunction issues. As an initial matter, it is important to recall that SFPS s custom and practice of blanket searches of students entering large student events is contrary to the its own written policy regarding searching students. If SFPS had an important interest that would be damaged by suspension of the searches, it would be expected that the blanket search policy would be incorporated in the written policy. Further, losing the ability to 24