UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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C.A. No. 22-0111

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DARLEEN ROBERTS,

minor, by her guardian and next friend, RICHARD ROBERTS,

Appellant,

v.

HAWTHORNE TOWNSHIP LOCAL SCHOOL DISTRICT, PETER LEE, and SHAWNA POST,

Appellees.

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BRIEF FOR THE APPELLANT

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Appeal from the Judgment of the United States District Court

Southern District of Ohio, Eastern Division entered on Feb. 21, 2022

1:21-CV-420

(Hon. Josiah B. Hale)

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[ENTER NAME] [ENTER ADDRESS]   Appellant

TABLE OF CONTENTS

STATEMENT IN SUPPORT OF ORAL ARGUMENT. 3

STATEMENT OF JURISDICTION.. 3

STATEMENT OF ISSUES. 3

STATEMENT OF THE CASE AND RELEVANT FACTS. 4

SUMMARY OF ARGUMENT. 5

STANDARD OF REVIEW.. 6

ARGUMENTS. 7

A.  THE SPECIAL NEEDS EXCEPTION DOES NOT PERMIT SCHOOL OFFICIALS TO CONDUCT A NON-INVASIVE CANINE SWEEP OF THE AIR AROUND ALL THE STUDENTS IN THE CLASSROOM. 7

i.    The Defendants’ action to conduct the search was not justified at its inception because it is excessively intrusive. 8

ii.   The search was not reasonably related in scope to the circumstances which justified the interference in the first place. 9

B.  THE DISTRICT COURT ERRED IN HOLDING THAT THERE WERE NO ISSUE(S) OF MATERIAL FACT. 13

CONCLUSION.. 15

CERTIFICATE OF COMPLIANCE. 16

CERTIFICATE OF SERVICE. 17

TABLE OF AUTHORITIES

Cases

B.C. v. Pluma 192 F.3d at 1260……………………………………………………………. 8

Begnaud v. White, 170 F.2d 323, 327 (6th Cir. 1948)…………………………… 6, 13

Brigham City, Utah v. Stuart, 547 U.S. 403 (2006)…………………………………… 9

California v. Trombetta, 467 U.S. 481 (1984)……………………………………. 8, 11

Di-Carlo v. Potter, 358 F.3d 408, 414 (6th Cir. 2004)………………………………. 5

Doe ex rel. Doe v. Little Rock Sch. Dist.,380 F.3d 349, 353 (8th Cir. 2004)…. 10

Horton v. Goose Creek Independent School District, 690 F.2d at 478- 479 (5th Cir. 1982)………………………………………………………………………………………………. 8, 12

Matsushita Elec. Indus. Co. v. Zenith Radio Corp ., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)……………………………………………………………………….. 13

New Jersey v. TLO, 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985)……… 6

Sigler v. Am. Honda Motor Co., 532 F.3d 469, 483 (6th Cir.2008)…………….. 13

Skinner v. Railway Labor, 489 U.S. 602 (1989)………………………………….. 8, 11

Taft Broad. Co. v. United States, 929 F.2d 240, 248 (6th Cir. 1991)…………….. 6

Terry v. Ohio, 392 U.S., [1] at 20 [ 88 S.Ct. 1868, at 1879, 20 L.Ed.2d 889]…. 7

Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969)         10

United States v. Arvizu, 534 U.S. 266 (2002)…………………………………………… 9

United States v. Beale, 736 F.2d 1289, 1291-92 (9th Cir. 1984)…………….. 8, 12

United States v. Bronstein, 2 Cir. 1975, 521 F.2d 459……………………………….. 8

United States v. Jacobsen, 466 U.S. 109, 113 (1984)………………………………. 10

Vernonia Sch. Dist. No. 47J v. Acton (1995)…………………………………………… 9

Statutes

28 U.S.C. § 1292………………………………………………………………………………. 3

42 U.S.C. § 1983………………………………………………………………………………. 2

Federal Rule of Appellate Procedure 32(a)(5)……………………………………….. 15

Federal Rule of Appellate Procedure 32(a)(6)……………………………………….. 15

Federal Rule of Appellate Procedure 32(a)(7)(B)…………………………………… 15

Federal Rule of Appellate Procedure 32(a)(7)(B)(iii)………………………………. 15

Federal Rule of Appellate Procedure 32(a)(7)(C),………………………………….. 15

Other Authorities

W. Schwarzer, “Summary Judgment Under The Federal Rules: Defining Genuine Issues of Material Fact”, 99 F.R.D. 465, 487-88 (1984)…………………………………. 6, 13

Rules

Fed. R. Civ. P. 56(a)………………………………………………………………………… 12

Fed. R. Civ. P. 56(c)………………………………………………………………………….. 5

         

 

 

 

STATEMENT IN SUPPORT OF ORAL ARGUMENT

 Oral argument is requested. Standard respectfully requests oral argument to address any questions the panel of the United States Court of Appeals for the Sixth Circuit may have regarding the facts and applicable law.

STATEMENT OF JURISDICTION

The district court had subject matter jurisdiction pursuant to 28 U.S.C. § 1331 and Plaintiffs’ claims arise under federal law. Plaintiff sought relief under 42 U.S.C. § 1983. 

The district court entered an interlocutory judgment granting Defendants’ Motion for Summary Judgment and denying Plaintiff’s Motion for Summary Judgment on February 21, 2022. The Plaintiff-Appellant timely appealed on February 22, 2022.  Accordingly, this Court has appellate jurisdiction pursuant to 28 U.S.C. § 1292 because the Plaintiffs are appealing an interlocutory decision.

STATEMENT OF ISSUES

Whether the Fourth Amendment’s special need exception permits a school official with a trained canine unit, randomly and for the protection of students in a public school with a documented drug problem, to conduct a non-invasive canine sweep of the air around all the students in the classroom.

Whether the District Court erred when it held that there was no issue(s) of material fact.

STATEMENT OF THE CASE AND RELEVANT FACTS

  On October 25, 2021, Hawthorne Township High School had its first canine-sweep under its modified policy. In recent years, the school was experiencing a significant spike in the distribution and use of illegal drugs on its campuses. In response – and after a particular incident involving a canine sweep that failed to detect a student selling marijuana on campus by keeping the drugs in her pockets rather than in her property – the school revised its policy. Under the revised policy, the district authorized principals to have a trained canine unit enter classrooms with students present and sniff the air near the students’ bodies while they are at their desks.

On the morning of October 25, the specially-trained Labrador-mix, Ogie, along with his handler, Officer Schneider, went to six classrooms that had been randomly selected by the school’s principal, Defendant Post. Altogether, the team entered each classroom, walking through the aisles of desks, sniffing near students’ bodies and belongings.

In one of the classrooms, Ogie stopped near Plaintiff Darleen Roberts, a fourteen-year-old freshman. Ogie sniffed within two to three inches of her body for about ten seconds; during that period, some students laughed and made teasing remarks. Ogie then sat and appeared to look at Plaintiff’s midsection.

Plaintiff remembered a school demonstration and recognized that this meant the dog was alerting to her. She was upset by that. Plaintiff acknowledges that Ogie did not touch her. Plaintiff also acknowledges that Ogie and his handler spent about three minutes in total sniffing the students and their belongings in the classroom. Plaintiff states that Ogie probably “brushed” other students during this sweep and that it often moves close to students and gets excited when getting closer to a scent.

After speaking to the handler, Principal Post brought Plaintiff with her to the office. There, she called Plaintiff’s father. After gaining consent from both her father and plaintiff herself to search Plaintiff’s belongings and pat down her clothing, Principal Post could not find any contraband. Plaintiff claims that the dog’s alert was false and speculates about a residual scent of dog treats that she often kept in her pockets. However, the handler assures that Ogie is specifically trained not to respond to such scents.

After twenty minutes, Principal Post sent Plaintiff to return to class. Although she was not disciplined or followed up on, Plaintiff claims that she suffered embarrassment and damage to her name as a result of the dog sniff. This lawsuit ensued.

SUMMARY OF ARGUMENT

The search was not justifiable because it was intrusive in nature. It is also not justifiable because it infringed on Darlene’s reasonable expectation of privacy.

The Court erred in holding that there was no issue of material fact. Instead, there were genuine issues of material fact, to wit: the search was intrusive; and Darlene had a reasonable expectation of privacy, which was infringed by the search. 

STANDARD OF REVIEW

This Honorable Court reviews de novo a district court’s order granting summary judgment. Di-Carlo v. Potter, 358 F.3d 408, 414 (6th Cir. 2004). This Court will affirm a grant of summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). Summary judgment is inappropriate when the evidence raises a genuine issue about a material fact, “that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

The standard of review when parties file cross-motions for summary judgment is the same as when only one party moves for summary judgment. Taft Broad. Co. v. United States, 929 F.2d 240, 248 (6th Cir. 1991). When there are cross-motions for summary judgment, the court must “evaluate each party’s motion on its own merits, taking care in each instance to draw all reasonable inferences against the party whose motion is under consideration.” Id. In considering cross motions for summary judgment, the court is “not require[d]… to rule that no fact issue exists.” Begnaud v. White, 170 F.2d 323, 327 (6th Cir. 1948).

ARGUMENTS

A.   THE SPECIAL NEEDS EXCEPTION DOES NOT PERMIT SCHOOL OFFICIALS TO CONDUCT A NON-INVASIVE CANINE SWEEP OF THE AIR AROUND ALL THE STUDENTS IN THE CLASSROOM.

Appellant contends that the search conducted by the Appellees failed the reasonability test hence violated Appellant’s Fourth Amendment rights. The Supreme Court in New Jersey v. TLO, 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985) recently articulated the standard to be applied in deciding whether the search of a student by school officials violates his or her Fourth Amendment rights. The Court stated thus “[t]he legality of a search of a student should depend simply on the reasonableness, under all the circumstances, of the search.” Id. Determining the reasonableness of any search involves a twofold inquiry: first, one must consider “whether the . . . action was justified at its inception,” Terry v. Ohio, 392 U.S., [1] at 20 [ 88 S.Ct. 1868, at 1879, 20 L.Ed.2d 889]; second, one must determine whether the search as actually conducted “was reasonably related in scope to the circumstances which justified the interference in the first place,” ibid.

       i.            The Defendants’ action to conduct the search was not justified at its inception because it is excessively intrusive

Appellant asserts that the sniffing amounted to an excessively intrusive search. Under ordinary circumstances, a search of a student by a teacher or other school official will be “justified at its inception” when 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. Such a search will be permissible in its scope when the measures adopted are 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 744.

Appellant contends that a sniff amounts to a search because it is intrusive upon the body. The intrusion of a person’s body is higher than the intrusion of an object. See United States v. Bronstein, 2 Cir. 1975, 521 F.2d 459. The Supreme Court has long considered the specific bodily invasion one endures when assessing whether a search occurred. See Skinner v. Railway Labor, 489 U.S. 602 (1989); California v. Trombetta, 467 U.S. 481 (1984). It has also been held that the level of intrusiveness is greater when the dog is permitted to sniff a person than when a dog sniffs unattended luggage. See United States v. Beale, 736 F.2d 1289, 1291-92 (9th Cir. 1984). Further, the fifth circuit held that “the intensive smelling of people, even if done by dogs, [is] indecent and demeaning” Horton v. Goose Creek Independent School District, 690 F.2d at 478- 479 (5th Cir. 1982).

In the instant action, the police dog sniffing Darleen at a mere two to three inches presents an even clearer instance of a search. In B.C. v. Pluma 192 F.3d at 1260, it was held that having one’s body examined in this manner is sufficiently more “embarrassing” than having property sniffed, and can be distinguished from the context of a place where unattended suitcases were sniffed. Given that Darleen was a 14-year old girl, odor is more personal and intimate in younger people who are already self-conscious of their bodies. The excessive intrusion is also seen in the nature of the up-close dog-sniff with Ogie sniffing up her right leg and hip a mere “two to three inches.” Schneider Dep. ¶¶ 7-8.  It is therefore likely that the foregoing amounts to an excessively intrusive search that makes the search not justifiable. 

It follows; the search was not justifiable because it was excessively intrusive.

     ii.            The search was not reasonably related in scope to the circumstances which justified the interference in the first place

The defining characteristic of the Fourth Amendment is reasonableness. Brigham City, Utah v. Stuart, 547 U.S. 403 (2006). Reasonableness is determined by the context in which the search takes place. New Jersey v. T.L.O., 469 U.S. 325, 337 (1985). The reasonableness of a search “is judged by balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests.” Vernonia Sch. Dist. No. 47J v. Acton (1995).  In the public school setting, the constitutionality of a search is measured “under all the circumstances.” T.L.O., 469 U.S. at 341. In doing so, a court will consider the totality of the circumstances. United States v. Arvizu, 534 U.S. 266 (2002). This totality of circumstances equally applies to the context of schoolchildren who, “ . . . do not shed their constitutional rights when they enter the schoolhouse, but where the Fourth Amendment rights “ . . . are different in public schools than elsewhere; the “reasonableness” inquiry cannot disregard the schools’ custodial and tutelary responsibility for children.’” Earls, 536 U.S. at 829-30.

The Supreme Court has devised a three-part balancing test to determine “reasonableness” in the public school setting: (1) the nature of the privacy interest of the search; (2) the extent of the intrusion; and (3) the extent of the governmental concern at issue in combination to the efficacy of the means used for addressing that concern. Acton, 515 U.S. at 654-66. Applying this reasoning, Appellant avers that the search was unreasonable.

With respect to the first factor, the Appellant asserts that a student’s expectation of privacy is not non-existent. See Doe ex rel. Doe v. Little Rock Sch. Dist.,380 F.3d 349, 353 (8th Cir. 2004). In that light, Appellant maintains that the search violated Darlene’s reasonable expectation of privacy. The Court in New Jersey v. TLO, 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985) recognized that a balance must be struck between the schoolchild’s legitimate expectations of privacy and the school’s substantial interest in maintaining a safe and educational environment on school grounds. In United States v. Jacobsen, 466 U.S. 109, 113 (1984), it was held that a sniff by a dog violates the individual’s reasonable expectation of privacy.

In that light, Appellant maintains that students maintain the right to some privacy in school. See Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969). While not as extensive as the rights of average people– and limited by the school’s need to maintain order and a safe school environment– students have the right to keep certain things private. New Jersey v. TLO, 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985). For example, a public school student has a reasonable expectation of privacy on items that are not necessarily related to academic activities, but which are proper and common items that students bring to school, such as planners, letters from friends and notes. Id.

Appellant further avers that a court will likely find that Darleen’s expectation of privacy was also violated because Darleen was sniffed in front of all her peers and her teacher and the principal. Compl. ¶ 2. When the dog alerted the officer and principal, it also alerted all her classmates, her teacher, Darleen herself, and later, her father. Answer to Compl. ¶ 3. Furthermore, Darleen did not expect the search. In this case, Darleen was in her classroom reading a book. It was also the first time in Darleen’s entire life that she was sniffed directly. Roberts Dep. ¶ 1. This was a new experience for her, and she was not expecting it prior to the lockdown announcement only minutes prior. As such, she listened for instructions from the Principal Post to know what to do, “Do not move around, “Stay still.” Roberts Dep. ¶ 2.

 With respect to the second factor, the Appellant asserts that the search was excessively intrusive. As already alleged above, the Supreme Court has long considered the specific bodily invasion one endures when assessing whether a search occurred. See Skinner v. Railway Labor, 489 U.S. 602 (1989); California v. Trombetta, 467 U.S. 481 (1984). It has also been held that the level of intrusiveness is greater when the dog is permitted to sniff a person than when a dog sniffs unattended luggage. See United States v. Beale, 736 F.2d 1289, 1291-92 (9th Cir. 1984). Further, the fifth circuit held that “the intensive smelling of people, even if done by dogs, [is] indecent and demeaning” Horton v. Goose Creek Independent School District, 690 F.2d at 478- 479 (5th Cir. 1982).

With respect to the third issue, Appellant avers that while there was indeed a high state interest to conduct the search for drugs with dog-sniffs, there was a concurrent need to balance the search with the privacy rights of the students. Notably, the Court in New Jersey v. TLO, 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985) recognized that a balance must be struck between the schoolchild’s legitimate expectations of privacy and the school’s substantial interest in maintaining a safe and educational environment on school grounds.

Accordingly, while Appellant appreciates the need for deterring drug use and protecting its students, the school must have used a method that would least violate the reasonable expectation of privacy of the students, which expectation though lesser in public schools than in private schools, must still be protected.

B.   THE DISTRICT COURT ERRED IN HOLDING THAT THERE WERE NO ISSUE(S) OF MATERIAL FACT

Summary judgment is appropriate if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In deciding a motion for summary judgment, the Court must view the evidence and draw all reasonable inferences in favor of the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp ., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The “moving party bears the burden of showing the absence of any genuine issues of material fact.” Sigler v. Am. Honda Motor Co., 532 F.3d 469, 483 (6th Cir.2008).

In assessing the sufficiency of the evidence to sustain a particular inference the court must consider the burden of proof on the issue and where it will rest at trial. When the moving party does not have the burden of proof on the issue, he need show only that the opponent cannot sustain his burden at trial. But where the moving party has the burden — the plaintiff on a claim for relief or the defendant on an affirmative defense — his showing must be sufficient for the court to hold that no reasonable trier of fact could find other than for the moving party. See W. Schwarzer, “Summary Judgment Under The Federal Rules: Defining Genuine Issues of Material Fact”, 99 F.R.D. 465, 487-88 (1984).

When there are cross-motions for summary judgment, the court must “evaluate each party’s motion on its own merits, taking care in each instance to draw all reasonable inferences against the party whose motion is under consideration.” Id. In considering cross motions for summary judgment, the court is “not require[d]… to rule that no fact issue exists.” Begnaud v. White, 170 F.2d 323, 327 (6th Cir. 1948).

In the instant action, the Appellant had filed a motion for partial summary judgment, on the issue of liability under section 1983, and the Appellee filed a cross-motion for summary judgment. There was sufficient evidence to show that there was a contention as to two pertinent issues. The first contention is whether the search fell under the special need exception of the Fourth Amendment. Plaintiff avers that the search was not reasonable because it was intrusive and it violated Darlene’s reasonable expectation of privacy. Appellant therefore avers that the Court erred in holding that there was no issue of material fact.

CONCLUSION

          For the foregoing reasons, the Appellant prays that this Court issues Judgment for Plaintiff and for the interest of justice and fairness, reverse the District Court’s judgment, and remands the case with appropriate instructions. Appellant also prays this Court grant any other Order it deems fit and just. 

Respectfully Submitted,

Dated: _____________

_______________________ [ENTER NAME]     Appellant

CERTIFICATE OF COMPLIANCE

                   I certify, pursuant to Federal Rule of Appellate Procedure 32(a) (7)(C), that the attached OPENING BRIEF FOR THE APPELLANT:

1. complies with Federal Rule of Appellate Procedure 32(a)(7)(B) because it contains roughly 2,910 words, excluding the parts of the brief exempted by Federal Rule of Appellate Procedure 32(a)(7)(B)(iii); and

• complies with the typeface requirements of Federal Rule of Appellate Procedure 32(a)(5) and the type style requirements of Federal Rule of Appellate Procedure 32(a)(6) because it has been prepared in a proportionally spaced typeface using Word 2016, in 14-point Times New Roman font.

The undersigned has relied upon the word count feature of the mentioned word processing system in preparing this certificate.

Dated: _____________  

_______________________ [ENTER NAME]     Appellant

CERTIFICATE OF SERVICE

          I hereby certify that on _____________, I sent the foregoing to the Parties herein to their respective addresses.

Dated: _____________

_______________________ [ENTER NAME]     Appellant