Case 1:08-cv-00123-S-DLM Document 24 Filed 12/29/08 Page 1 of 10 PageID #: 80

UNITED STATES DISTRICT COURT DISTRICT OF RHODE ISLAND

Juan Lopera, Marlon Giraldo, Mauricio Espinal,

:

Hector Cardona, Steven Giraldo, Randy Giraldo,

:

William Ruiz, Pedro Hernandez,

:

Luis E. Ardila-Lazaro, by and through his parents and

:

next friends, Luis Ardila and Hziel Ardila;

:

Bryan Ocampo, by and through his parent and next friend, :

Alba Jaramilio; Stephen Patino, by and through

:

his parent and next friend, Lilian Giraldo;

:

Joulder Salazar, by and through his parents and next

:

friends Youlder Salazar and Martha Duran;

:

Milton Ricuarte, Jr., by and through his parents and

:

next friends, Milton Ricuarte Sr. and Elizabeth Rivera

:

Plaintiffs

C.A. No. 08-123 JURY TRIAL DEMANDED

vs.

TOWN OF COVENTRY, by and through its Treasurer, Warren West; Kevin P. Harris, in his individual capacity and in his capacity as a police officer for the Town of Coventry, Kevin Kennedy, in his individual capacity and in his capacity as a police officer for the Town of Coventry, David Nelson, in his individual capacity and in his capacity as a police officer for the Town of Coventry, Stephen A. Michailides, in his individual capacity and in his capacity as a police officer for the Town of Coventry; and Brian O'Rourke, individually and in his capacity as the former Chief of Police for the Town of Coventry, and Ronald E. DaSilva, individually and in his capacity as Chief of Police for the Town of Coventry
Defendants

COMPLAINT AND JURY TRIAL DEMAND

I. Background

1. This is an action for compensatory damage, punitive damages, reasonable attorney's

fees, costs and expenses related to the conduct of defendants on or about September 28, 2006.

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2. Such conduct by the Defendants, an unwarranted and unfounded search and interrogation in the face of an angry crowd, was in violation of the constitutional protections afforded the Plaintiffs under the 14'' Amendment and in violation 42 U.S.C. § 1983.
3. Additionally, the acts and omissions of the Defendants have given rise to pendant claims of invasion of privacy, and violation of the Racial Profiling Prevention Act of 2004, and violation of R.I.G.L. § 9-1-35.
II. Jurisdiction 4. This court is empowered to hear this case pursuant to 28 U.S.C. § 1331, its federal question jurisdiction. The court is also empowered to hear the civil rights claims enumerated herein pursuant to 28 U.S.C. § 1343. Additionally, the court is empowered to hear the state law claims presented pursuant to 28 U.S.C. § 1367.
III. Venue 5. Venue rests with this court pursuant to 28 U.S.C. § 1391.
IV. Parties 6. Plaintiffs, Juan Lopera, Marlon Giraldo, Randy Giraldo, Mauricio Espinal, Hector Cardona, Steven Giraldo, William Ruiz, Pedro Hernandez, Luis E. Ardila-Lazaro, Brian Ocampo, Stephen Patino, Joulder Salazar and Milton Ricuarte, Jr., are residents of the City of Central Falls and were members of the Central Falls High School soccer team during the 20062007 school year. 7. Plaintiffs, Juan Lopera, Marlon Giraldo, Mauricio Espinal, Hector Cardona, Randy Giraldo, Steven Giraldo, William Ruiz, and Pedro Hernandez, have reached the age of majority.

Case 1:08-cv-00123-S-DLM Document 24 Filed 12/29/08 Page 3 of 10 PageID #: 82
The remaining Plaintiffs, being minors, bring this action by and through their parents and next friends, as follows: Luis E. Ardila-Lazaro, by and through his parents and next friends, Luis Ardila and Hziel Ardila; Brian Ocampo, by and through his parent and next friend, Alba Jaramillo; Stephen Patino, by and through his parent and next friend, Lilian Giraldo; Joulder Salazar, by and through his parents and next friends Youlder Salazar and Martha Duran; Milton Ricuarte, Jr., by and through his parents and next friends, Milton Ricuarte Sr. and Elizabeth Rivera
8. The Defendant Town of Coventry (hereinafter, "Town") is a duly authorized and organized municipality pursuant to the laws of the State of Rhode Island and is sued by and through its Treasurer, Warren West, the official designated by State law, R.I.G.L. § 45-15-5, to be named in a suit for relief against the Town.
9. Defendant Kevin P. Harris is sued individually and in his official capacity as a police officer employed by the Town. Police Department.
10. Defendant Kevin Kennedy is sued individually and in his official capacity as a police officer employed by the Town Police Department.
11. Defendant David Nelson is sued individually and in his official capacity as a police officer employed by the Town Police Department.
12. Defendant Stephen A. Michailides is sued individually and in his official capacity as a police officer employed by the Town Police Department.
13. Defendant Brian J. O'Rourke is sued individually and in his official capacity as the former Chief of the Town Police Department.
14. Defendant Ronald E. DaSilva is sued individually and in his official capacity as the Chief of the Town Police Department.

Case 1:08-cv-00123-S-DLM Document 24 Filed 12/29/08 Page 4 of 10 PageID #: 83
V. Facts
15. More than forty (40) days have elapsed since presentment of the Plaintiffs' claims to the Town Council of the Town in accordance with R.I.G.L. § 45-15-5 without Plaintiffs' having received just and due satisfaction from the defendants.
16. On or about September 28, 2006, the Plaintiffs and other members of the Central Falls High School men's soccer team traveled to Coventry High School for a scheduled game against the Coventry High School men's soccer team.
17. The Plaintiffs are of the Hispanic race. 18. The Town of Coventry is predominately white. 19. Plaintiffs traveled from Central Falls High School to Coventry High School via school bus accompanied by their coach, Robert Marchand. 20. When the Plaintiffs arrived at Coventry High School, they asked their coach if they could use the restroom facilities located inside Coventry High School. 21. The Plaintiffs entered and exited the school without incident and proceeded to the soccer field. 22. During the game the Plaintiffs endured repeated slurs regarding their race, ethnicity, and national origin from both their opponents and the predominately white crowd attending the game. 23. Upon leaving the soccer field following the game, the Central Falls team encountered a group of Coventry High School students who accused them of theft.

Case 1:08-cv-00123-S-DLM Document 24 Filed 12/29/08 Page 5 of 10 PageID #: 84
24. Members of the crowd cornered Robert Marchand when the Central Falls team boarded its bus regarding the alleged theft. Robert Marchand questioned his players, searched their bags and reported to the crowd that they did not steal anything.
25. On information and belief, the Coventry Police Department was called and informed that there was a disturbance occurring between two groups of students at the high school.
26. The Coventry police, including defendants Harris, Kennedy, Michailides and Nelson raced to the scene with lights blaring and blocked the school bus from departing.
27. The Coventry students made accusations to the police that the Central Falls students had stolen items from their locker room.
28. Defendants Harris, Kennedy, Michailides and Nelson requested to speak with the Central Falls players and the players were told to exit the bus with their belongings.
29. Defendants Harris and Kennedy interrogated and searched Plaintiffs without probable cause, without their consent.
30. Defendants Michailides and Nelson aided their fellow police officers in their search and interrogation of the Plaintiffs.
31. Defendant police officers stated to the Plaintiffs that the search was being done to placate the angry crowd.
32. Plaintiffs were forced to be searched publicly in front of an angry crowd which photographed and taunted the Plaintiffs.
33. The Defendants Town and O'Rourke failed to properly select, train, instruct, supervise and discipline officers in the Town Police Department; including Defendants Harris, Kennedy, Nelson and Michailides, relative to the proper manner in which to conduct searches and seizures.

Case 1:08-cv-00123-S-DLM Document 24 Filed 12/29/08 Page 6 of 10 PageID #: 85
34. During all relevant time periods, a custom or policy existed in the Town Policy department wherein accused minorities were afforded less Constitutional rights than other accused persons.
35. Defendants Town and O'Rourke were deliberately indifferent to this custom or policy.
36. The Town is liable under the doctrine of respondent superior for the negligent acts and/or omissions of its agents, including defendants Harris, Kennedy, Nelson, and Michailides, police officers employed by the Town Police Department and under the direct supervision of Defendant O'Rourke, whose acts and/or omissions within the scope of his employment were the proximate cause of the injuries suffered by the Plaintiffs.
37. Defendants knew or should have known that by failing and/or refusing to properly investigate the allegations of theft and proceeding with the search and interrogation of the plaintiffs they were acting in a discriminatory and unlawful manner.
38. At all relevant times, the Defendants acted negligently, intentionally, willfully, maliciously, and/or with reckless or callous indifference to Plaintiffs' constitutionally protected rights. Furthermore, at all relevant times, Defendants knew or should have known that their conduct would cause or contribute to the deprivation of Plaintiffs' civil rights and cause Plaintiffs great harm.
39. As a proximate result of the Defendants acts and/or omissions, including but not limited to those described herein, Plaintiffs have suffered, and will continue to suffer mental anguish, embarrassment, invasion of privacy, tarnished reputations, deprivation of their civil rights, and other great harm.

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VI. Claims for Relief
40. Plaintiffs incorporate in the counts below the allegations contained in the Paragraphs above.
Count 1 Denial of Due Process in Violation of 42 U.S.C. §1983 41. Defendants, acting under the color of state law, by their individual and concerted acts and/or omissions, including but not. limited to those described herein, caused the plaintiffs to be searched and interrogated in violation of the due process of the law, causing Plaintiffs to suffer aforesaid damages, and thereby deprived the Plaintiffs of rights secured under the Fourteenth Amendment to the United States Constitution, actionable pursuance to 42 U.S.C. § 1983.
Count 2 Denial of Equal Protection in Violation of 42 U.S.C. §1983 42. Defendants, acting under the color of state law, by their individual and concerted acts and/or omissions, including but not limited to those described herein, caused the Plaintiffs, who are predominantly minorities, to be searched and interrogated in violation the equal protection of the law, causing Plaintiffs to suffer aforesaid damages, and thereby depriving the Plaintiffs of rights secured under the Fourteenth Amendment to the United States Constitution, actionable pursuant to 42 U.S.C. § 1983.
Count 3 Unreasonable Search and Seizure in Violation of 42 U.S.C. §1983 43. Defendants, acting under the color of state law, by their individual and concerted acts and/or omissions, including but not limited to those described herein,. caused the Plaintiffs to be

Case 1:08-cv-00123-S-DLM Document 24 Filed 12/29/08 Page 8 of 10 PageID #: 87
searched without probable cause and/or a warrant, absent circumstances in which probable cause and/or warrant is not required, in violation of the Plaintiffs' Constitutional rights secured under the Fourteenth Amendment to the United States Constitution, actionable pursuant to 42 U.S.C. §1983.
Count 4 Invasion of Privacy in Violation of R..I.G.L. § 9-1-28.1
44. Defendants, by their individual and concerted acts and/or omissions, including but not limited to those described herein, caused an invasion to the privacy of the Plaintiffs in violation of R.I.G.L. § 9-1-28.1, causing Plaintiffs to suffer aforesaid damages.
Count 5 Violation of Racial Profiling Prevention Act of 2004, R.I.G.L. § 31-21.2 el seq.
45. Defendants, by their individual and concerted acts and/or omissions, including but not limited to those described herein, caused an violation of the Rhode Island Racial Profiling Prevention Act of 2004, R.I.G.L. § 31-21.2 et seq., which forbids: "detention, interdiction or other disparate treatment of an individual on the basis, in whole or in part, of the racial or ethnic status of such individual, except when such status is used in combination with other identifying factors seeking to apprehend a specific suspect whose racial or ethnic status is part of the description of the suspect, which description is timely and reliable," and caused the Plaintiffs to suffer the aforementioned damages.
46. Defendants' actions were motivated on the basis of the Plaintiffs’ racial and/or ethnic status, but were not motivated by an attempt to apprehend a specific suspect pursuant to any description.

Case 1:08-cv-00123-S-DLM Document 24 Filed 12/29/08 Page 9 of 10 PageID #: 88
Count 6 Violation of R.I.G.L. § 9-1-35 (Racial/National Origin Intimidation) 47. Defendants, by their individual and concerted acts and/or omissions, including but not limited to those described herein; maliciously subjected Plaintiffs to acts that would ". . reasonably be construed as intended to harass or intimidate the person because of his or her race.... or national origin," in violation of R.I.G.L. § 9-1-35, causing Plaintiffs to suffer aforesaid damages.
VII. Prayers for Relief WHEREFORE, Plaintiffs pray that this Court grant the following relief:
1. An award of compensatory damages. 2. An award of punitive damages. 3. An award of reasonable attorney's fees and costs of litigation to Plaintiffs' attorney pursuant to 42 U.S.C. § 1988. 4. An award of statutory interest. 5. Such other and future relief as the Court deems just and proper.
VII. Demand for a Jury Trial Plaintiffs hereby demand a trial by jury on all counts so triable.
Plaintiffs, By their attorneys,
/s/ Stephen M. Robinson Stephen M. Robinson #2103 Robinson & Clapham 155 South Main Street, Suite 402 Providence, RI 02903 (401) 331-5353 fax 331-7373 November 17, 2008

Case 1:08-cv-00123-S-DLM Document 24 Filed 12/29/08 Page 10 of 10 PageID #: 89
/s/ Vicki J. Bejma Vicki J. Bejma #6498 Robinson & Clapham 155 South Main Street, Suite 402 Providence, RI 02903 (401) 331-5353 fax 331-7373 November 17, 2008
CERTIFICATION
I, the undersigned, hereby certify that on _________________________ I sent a true copy of the within by ____________________________ to all of the parties below:
Marc DeSisto, Esq. 211 Angell Street P.O. Box 2563 Providence, RI 02906
____________________________

 
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Case 1:08-cv-00123-S-DLM Document 25 Filed 03/10/09 Page 10 of 31 PageID #: 99

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Case 1:08-cv-00123-S-DLM Document 25 Filed 03/10/09 Page 11 of 31 PageID #: 100

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Case 1:08-cv-00123-S-DLM Document 25 Filed 03/10/09 Page 12 of 31 PageID #: 101
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Case 1:08-cv-00123-S-DLM Document 25 Filed 03/10/09 Page 13 of 31 PageID #: 102

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Case 1:08-cv-00123-S-DLM Document 25 Filed 03/10/09 Page 14 of 31 PageID #: 103

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Case 1:08-cv-00123-S-DLM Document 25 Filed 03/10/09 Page 17 of 31 PageID #: 106
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Case 1:08-cv-00123-S-DLM Document 25 Filed 03/10/09 Page 18 of 31 PageID #: 107

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Case 1:08-cv-00123-S-DLM Document 25 Filed 03/10/09 Page 19 of 31 PageID #: 108

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 Case 1:08-cv-00123-S-DLM Document 28 Filed 04/27/09 Page 1 of 36 PageID #: 126

UNITED STATES DISTRICT COURT DISTRICT OF RHODE ISLAND

Juan Lopera, et al. his parent and next friend, Lilian Giraldo;
vs.
TOWN OF COVENTRY, et al.

: : C.A. No: 08- 123 : : : :

PLAINTIFFS’ OBJECTION TO MOTION FOR SUMMARY JUDGMENT Now come the Plaintiffs, and hereby object to Defendants’ Motion for Summary Judgment. In support of said Objection, Plaintiffs rely upon their Memorandum, their Statement of Undisputed Facts, and their Statement of Disputed Facts attached hereto and made a part hereof.
Plaintiffs, By their attorney,

/s/ Stephen M. Robinson Stephen M. Robinson, #2103 The Law Offices of Stephen M. Robinson 155 South Main Street, Suite 402 Providence, RI 02903 (401) 331-5353 fax 331-7373 April 27, 2009

/s/ Vicki J. Bejma Vicki J. Bejma #6498
The Law Offices of Stephen M. Robinson 155 South Main Street, Suite 402
Providence, RI 02903 (401) 331-5353
fax 331-7373 April 27, 2009

1

Case 1:08-cv-00123-S-DLM Document 28 Filed 04/27/09 Page 2 of 36 PageID #: 127 CERTIFICATION
I hereby certify that the within document has been electronically filed with the Court on April 27, 2009, that it is available for viewing and downloading from the ECF system, and that the counsel of record listed below will receive notice via the ECF system: Marc DeSisto, Esq. marc@desistolaw.com
/s/ Vicki J. Bejma
2

Case 1:08-cv-00123-S-DLM Document 28 Filed 04/27/09 Page 3 of 36 PageID #: 128

UNITED STATES DISTRICT COURT DISTRICT OF RHODE ISLAND

Juan Lopera, et al. his parent and next friend, Lilian Giraldo;
vs.
TOWN OF COVENTRY, et al.

: C.A. No: 08- 123 : : : :

MEMORANDUM IN SUPPORT OF PLAINTIFFS’ OBJECTION TO MOTION FOR SUMMARY JUDGMENT I. INTRODUCTION This matter comes before this Honorable Court on Defendants’ Motion for Summary Judgment on all counts contained in Plaintiffs’ Amended Complaint. The Plaintiffs’ Amended Complaint arose out of an incident taking place on or about September 28, 2006. On that date, the Plaintiffs, who are Hispanic, were members of the Central Falls High School Soccer Team. The team had travelled by bus to an “away” game in Coventry, a predominately white community. They were accompanied by their coach, Robert Marchand, who was also a teacher at Central Falls High School. (Ex. D, 4:22-5:2) As the Central Falls team was boarding their bus to leave, several members of the Coventry High School football team claimed that their cell phones, iPods, and various other articles had been stolen from their locker room, and immediately concluded that the Central Falls team had been responsible. An angry mob consisting of Coventry students and parents rapidly blocked in the team bus, shouting accusations and racist insults, and demanding a search of the Central Falls players. Several Coventry Police cruisers rushed to the scene, with their lights flashing and sirens blaring, and parked so as to further block in the bus. Once they arrived, the Coventry Police were told that Coach Marchand himself had already conducted a search of the

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team and had not located the missing items. These officers were also aware that many students other than the Central Falls players had had access to the locker room. Nevertheless, the Coventry Police officers singled out the members of the Central Falls team for a search of their possessions and persons. This search lasted for about hour, and was conducted a mere six to ten feet of the mob. At no point was any Coventry student even requested to undergo such a search, despite the fact that any one of the Coventry students could just as easily have taken the items.
Plaintiffs then brought an action before this Court. Counts I, II, and III are actions brought under 42 U.S.C. § 1983, alleging deprivation of the Plaintiffs’ rights to due process, equal protection, and freedom from unreasonable search and seizure. The Plaintiffs also brought state law claims. Count IV alleged an invasion of privacy pursuant to R.I.G.L. § 9-1-28.1. Count V alleged a violation of Rhode Island’s relatively new Racial Profiling Prevention Act of 2004, R.I.G.L. § 31-21.2 et seq. Finally, Count VI alleged a violation of R.I.G.L. § 9-1-35, Racial/National Origin Intimidation.
Defendants now seek summary judgment on all counts of Plaintiffs’ complaint. The Defendants’ attack is twofold. In support of their argument for disposing of the counts stemming from the search, they would have this Court believe that Coach Marchand gave a “consent” to the search that legally absolves them of all accountability for their actions. This position is wholly unsupported by the law. Coach Marchand could not have given a valid “consent” to this search as a matter of law because he lacked the authority to do so on behalf of his team members. Even if he had had the authority to give such a “consent,” that “consent” was coerced. As for the counts relating to racial and national origin discrimination, the Defendants argue that these should be disposed of because, in their view, the Central Falls students were actually treated no differently than any other person similarly situated. A full treatment of the facts of this matter
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clearly demonstrates that argument flies in the face of all logic and reason. Accordingly, the Defendants’ Motion for Summary Judgment must fail. II. FACTUAL AND PROCEDURAL BACKGROUND
Contrary to the apparent beliefs of the Defendants, there is disagreement about the material facts. Plaintiffs can produce evidence demonstrating that the events of September 28, 2006 unfolded quite differently from the account given by the Defendants.
On the afternoon of September 28, 2006, the Central Falls Soccer Team arrived at Coventry High School for a game. Among the players were Plaintiffs Juan Lopera, a senior, (Ex. A, 6:1.), as well as juniors, Milton Ricuarte, Jr., and Bryan Ocampo. (Ex. B, 74:19-22; Ex. C, 4:9.), and Steve Giraldo. (Ex. D, 5:17-19.) As the current Police Chief acknowledged, Coventry is a predominately white community. (Ex. N, 22:1-7.) Its High School accordingly reflects that racial composition. (Ex. E, October 2006 Enrollment, Coventry High School.1) By contrast, the Central Falls School District is far more racially integrated, with Hispanics comprising the majority group. (Ex. F, October 2006 Enrollment, Central Falls School District.) One member of the Central Falls High School Soccer Team at the time was Portuguese, and the rest were Hispanic. (Ex. A, p. 9:2-5.)
It was not the standard practice for the visiting team to use Coventry High School’s locker room facilities to change into their game uniforms. (Ex. G, 21:15-20.) However, on arrival at Coventry, about five or six of the Central Falls team members asked to go into the locker room in order to use the bathroom. (Ex. A, 9:1; Ex. B, 9:12-10:5; Ex. D, 9:10-16.) There were four doors to the boys’ locker room, and at minimum, the exterior door of the locker room was left open during games and practices as standard procedure. (Ex. G, 20:22-21:11.) Coach Marchand accompanied these players to the locker room because they did not know where the bathroom was located. He did
1 Exhibits E and F on the Rhode Island Department of Education website, http://www.eride.ri.gov/reports.asp.
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not go into the locker room itself, but instead asked a security guard to go in with the players. (Ex. B, 10:6-11:20.) Steven Giraldo, who was one of the players who used the locker room, recalls seeing what he believed to be a security guard walking back and forth while they were using the locker room, keeping an eye on them. (Ex. D, 7:19-8:21)
Once the game itself began, the Central Falls players encountered a fair amount of racial hostility from Coventry. During the game, Ocampo and his teammates were told to “go back to where you were.” (Ex. C, 36:2-14.) Ricuarte and Lopera recall numerous instances in which they spoke to their teammates in Spanish, their native language, whether on the bench or on the playing field. The Coventry players ordered them to “speak English.” (Ex. A, 28:1-10; Ex. B, 6:13-7:21.) Steven Giraldo was referred to as a “spic” by one of the Coventry spectators who was apparently displeased with Giraldo’s play. (Ex. D, 5:21-7:9.) The Central Falls players remained stoic, and concentrated on their game. (Ex. D, 7:5-18.) This sort of behavior simply was not out of their experience. (Ex. C, 35:20-23.)
At the conclusion of the game, the Central Falls team followed their standard practice of lining up by twos and walking straight to the bus, without talking to anybody. (Ex. H, 17:22-18:1.) Unbeknowst to them, the racial hostility that had smoldered through that late afternoon had not dissipated, but had reached a flashpoint. Coach Marchand was walking in the back of the line at some distance from the team. He was accosted by a group of about twenty youths wearing jeans and t-shirts. All seemed to have wet hair, as if they had been showering. (Ex. H, 18:4-19-1.) Coach Marchand later found out that this was the Coventry football team. (Ex. H, 19:6-7.) The Coventry football team demanded to know if Coach Marchand were the “F’n coach of Central Falls.” When Coach Marchand replied he was, they said, “Well, your punks stole all of our F’n shit and they got our ipods.” (Ex. H, 18:5-10.)
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Coach Marchand proceeded to the bus. His team by this time was sitting on the bus. They were told to keep their mouths shut and their heads down. (Ex. H, 20:9-12.) Coach Marchand called his Assistant Coach, Carl Africo, and told him of the accusations. (Ex. H, 20:12-15.) Marchand explained to the boys that the crowd believed that the five boys who went into the locker room had taken the missing items. Coach Marchand told the boys that he knew that they had not done that. (Ex. B, 29:10-18.) At some point during this conversation, the boys who had used the locker room at told Marchand that the security guard had followed them around the whole time they were in the locker room. (Ex. B, 12:7-18, 20:2-13.) Nevertheless, Coach Marchand and Coach Africo searched the boys, as well as the medicine kits and ball bags. (Ex. H, 21:8-22:22.) At the end of the search, which lasted about 20-25 minutes, Coach Marchand was “completely satisfied” that the boys had done nothing. (Ex. H, 15:9-12; 23:4-8.)
When Coach Marchand was done, he found the Coventry Athletic Director outside. He told the Athletic Director that the Central Falls boys did not have the items. (Ex. H, 23:20-24:4.) On the same day as the game, the Coventry football, cheerleading, and cross-country teams were practicing, and by this time their parents were coming to pick them up. (Ex. H, 19:19-20:2.) A crowd of about 50-60 people had gathered outside the bus. (Ex. H, 24:6-10.) Coach Marchand heard members of the crowd saying that they knew the Central Falls players had taken the items. People in that crowd also commented that the Central Falls players were from the ghetto and that “those people” knew how to hide things and “lie good,” and could not be trusted. The crowd was even demanding a search of Coach Marchand. (Ex. H, 24:15-25:25) Some of those making these remarks were adults. (Ex. H, 25:1-8.) Other members of the crowd made specific racial slurs, including one woman who called the team “spics.” (Ex. D, 27:13-28:5.) At some point, one Coventry student tried to get on the bus to conduct his own search. (Ex. B, 53:5-12; Ex. D, 27:11-30:5.) Others in the crowd
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Case 1:08-cv-00123-S-DLM Document 28 Filed 04/27/09 Page 8 of 36 PageID #: 133
declared that the Central Falls team was not leaving “. . . til we find the stuff . . .” (Ex. H, 25:5-8.) In any case, the crowd already had formed a semicircle that prevented the bus from moving. (Ex. D, 31:16-32:6.)
At that point, three or four Coventry Police cars arrived with their lights and sirens on. (Ex. H, 15:14-16; Ex. I, 38:7-39:2.) Officers Kevin Harris, David Nelson, and Kevin Kennedy responded, along with their supervisor, Sergeant Stephen Michaelides.2 Once the police had responded, the team bus could not have moved without the police cars moving, because one was in front of and the other was in back of the bus. (Ex. H, 43:15-24.) Coach Marchand and the Coventry Athletic Director spoke to the police. As the Coventry police officers admitted at deposition, Coach Marchand told them that he had already searched his players. (Ex. H, 26:22-27:4; Ex. I, 76:22-25; (Ex. J, 46:3-5; Ex. K, 43:25-44:2.) Coach Marchand asked: “. . . what am I going to do, what are they going to do to us.” (Ex. H, 27:23-24.)
Coach Marchand did not at any time make the suggestion that the Coventry Police search his players’ bags. (Ex. H, 27:18-20.) At this point, however, the Coventry Police responded to Coach Marchand’s question about what would happen by deciding to search the boys themselves. (Ex. H, 28:8-29:13.) At deposition, Officer Harris testified that the second search by the police was necessary: “[t]o prove that, we don’t know if Coach Marchand is telling us the truth. We are investigating the situation.” (Ex. I, 77:1-4.) Michaelides testified that he had told Coach Marchand that a police search of the Central Falls team would “. . . expedite the process and eliminate them all as suspects.” (Ex. K, 44:1-6.)
At the time that the Coventry Police asked for a second search of the boys, there had been a clear rush to judgment as to whether a theft had even taken place. The Coventry officers had not
2 In February of 2008, Michaelides was promoted to Lieutenant. (Ex. K, 18:6-16.)
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even asked the Coventry students to make sure that they had not simply mislaid the items. (Ex. I, 71:17-72:7; Ex. J, 40:14-17; Ex. M, 28:23-29:1.) Worse, no effort was made then or at any later point to determine precisely what items were allegedly missing and would be sought. As all of the Coventry Police officers also admitted at deposition, not a single one of them obtained any description of the exact type of iPod alleged to be missing, its color, or whether it was in a case. . (Ex. I, 66:13-67:4; Ex. J, 39:14-22, 62:5-14; Ex. K, 45:16-19; Ex. M, 27:1-18.) No Coventry Police officer received any description of the make or model of the cell phone alleged to be missing, other than perhaps its being a “flip phone.” (Ex. I, 67:5-9; Ex. J, 39:14-22, 61:19-62:4; Ex. K, 45:20-23; Ex. M, 27:1-18.) As matters progressed, students alleged that other items than iPods or cell phones were alleged to be missing, such as books or cash, but the Coventry officers never bothered obtaining a final accounting of all missing items. They merely proceeded to press for a search. (Ex. I, 71:4-12; Ex. J, 40:7-13; Ex. K, 45:10-14.)
Furthermore, every single officer on the scene that day knew perfectly well that the locker room was open, and anybody could have accessed it -- including Coventry as well as Central Falls students. (Ex. I, 69:25-70:1, 70:4-7; Ex. J, 47:4-6; Ex. K, 46:2-5.) Nevertheless, the Coventry Police officers believed the Central Falls students to be suspects, justifying that belief on the basis that the Central Falls students had allegedly been in the locker room where the items had gone missing. (Ex. I, 69:7-24; Ex. J, 40:1-6.)
The Coventry officers’ view of the Coventry High School students, by contrast, was far more charitable. Despite the fact that any Coventry student could have just as easily have been a potential perpetrator, the Coventry officers considered all of the Coventry High School students on the scene to be “victims” – including those who were not complaining of having lost anything. (Ex. I, 73:7-
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74:5.) No Coventry student was searched at any time. (Ex. I, 73:4-23; Ex. J, 46:13-24; Ex. K, 46:25.) In fact, no Coventry student was even requested to submit to a search. (Ex. I, 74:4-7.)
Coach Marchand, however, was left in a quandary. Quite rightly, he believed that the Coventry Police did not have the right to search the boys. (Ex. H, 44:16-17.) He felt that the police simply wanted to: “. . . appease the masses over there that were crying for our heads.” (Ex. H, 28:25.) Even now that the police had arrived, the crowd outside the bus remained hostile, repeatedly calling out remarks indicating that the Central Falls players were “good at hiding things, they’re sneaky you know it, search the coach.” (Ex. H, 15:14-16:3.) The police were telling the crowd to stop, but they stayed where they were and continued with their remarks. (Ex. H, 16:3-7, 27:5-9, 45:8-13.) Worse, Coach Marchand’s bus was blocked in, and he also had reason to believe that the police were not making any serious effort at controlling the crowd. Coach Marchand, also a teacher, described the situation: “You know, it was one of those things where you tell the class okay you cut it out and you don’t really do anything and then two seconds later they’re talking again, you know.” (Ex. H, 16:3-7, 27:5-9, 45:8-13.) Coach Marchand fully appreciated the potential for violence that could result with the large crowd. During his coaching career, he had experienced a situation in Burrillville where some disagreement erupted into a serious brawl and injuries to the players, and was fearful that a similar situation might arise. (Ex. H, 13:16-22.)
Marchand therefore felt that he had no under choice but to permit the police search. (Ex. H, 44:24.) Marchand told the boys that the crowd was not going to let them go until the police searched them. (Ex. D, 36:1-8.) Marchand never told the boys that he had given the police permission to search them. (Ex D, 37:15-17.) The Coventry Police ordered the Central Falls students that everybody was to leave the bus with all of their belongings. The managers were to
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bring off the equipment. They were to line up, put the bags in between their legs and wait for further instructions. (Ex. B, 40:17-22; Ex. H, 28:15-23.)
As ordered, the boys lined up with their backs to the bus. The crowd was about six to ten feet away. (Ex. A, 21:9-24; Ex. D, 42:6-10.) After the boys lined up, a Coventry police officer announced that they were there because there were things missing from the locker room. The officer warned the boys that if they had the items, they were to step forward or they would be arrested “right now and not be able to go home tonight.” The officer also announced that they would be doing a search. (Ex. C, 27:21-28:6.) The police told the boys to open their bags and remove everything. (Ex. A, 22:8-15.)
The police proceeded down the line to make their searches, with the crowd still looking on. It appears in at least some cases, some students were searched twice, by different officers. (Ex. B, 56:8-57:14.) Marchand witnessed students’ bags were placed on the hoods of the officers’ cars, and the police searching them. (Ex. H, 29:8-23.) At least in part because the Coventry Police had obtained no clear idea of what they were looking for in the first place, the Central Falls students had to prove that their own cell phones and iPods were their property by allowing the police to search the pictures, numbers, and data stored thereon. (Ex. B, 49:13-22, 49:23-50:9; Ex. D, 48:2-17, 50:2351:5, 51:6-13.) On other occasions, the Coventry officers took students’ electronics to the crowd and displayed it to the crowd to find out if it were among those said to be missing. (Ex. A, 26:3-24; Ex. C, 29:13-24; Ex. H, 29:8-23.)
Contrary to the officers’ account, the searches were not limited to the students’ belongings, but included searches of their persons. Lopera was asked if he had anything under his armpits. He said no. The police told him to pull up his shirt, and one officer touched him under the armpits. Ex. A, p. 24:9-11.) Lopera was told to take off his sweater, and to stretch his shirt and pants to prove
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that nothing was in them. (Ex. A, 24:19-25:24.) The Coventry police asked Ocampo to empty his pockets. (Ex. C, 32:2-4.) Giraldo was required to lift his shirt to prove that he had nothing in his waistband. (Ex. D, 49:21-50:5.) Giraldo also witnessed another player next to him, Pedro Hernandez, get patted down. (Ex. D, 50:12-15.) A Coventry officer told Ricuarte to spread his legs and raise his hands straight out. Beginning at Ricuarte’s ankles, he dragged his hands up his legs, ribs and arms. (Ex. B, 47:17-48:16.) The Coventry officer told Ricuarte to lift his shirt. (Ex. B, 49:2-3.)
This process lasted for about 45 minutes to an hour. (Ex. D, 53:8-23; Ex. H, 30:14-15.) While the search was ongoing, the players continued to be harassed by the mob. Ricuarte heard the crowd saying that his team should not be playing Coventry because of their race. (Ex. B, 31:9-17.) Ricuarte, like his Coach, was fearful of being attacked by the crowd. (Ex. B, 41:22-23.) The crowd repeatedly photographed the students during the search. (Ex. A, 27:1-3; Ex. B, 29:1-8, 30:5-11; Ex. D, 39:13-17; Ex. H, 47:17-19.) The crowd continued to refer to the team as “Spics” and make other comments regarding the players’ race. (Ex. B, 50:11-53:2; Ex. D, 41:13-42-5.)
The Coventry police themselves appear to have felt that this humiliating public search served absolutely no legitimate law enforcement purpose. During the search, one Coventry officer told Ricuarte that he thought the search was stupid because the coach had already checked, and in any case the security guard had been with the five boys who had used the locker room the whole time. (Ex. B, 57:18-58:14.) Another officer heard this remark and laughed. (Ex. B, 58:20-23.) Later, however, when this incident attracted media attention, the matter was brought up at roll call, with Chief O’Rourke relaying to Coventry officers through Sergeant Michaelides that they had done nothing wrong. (Ex. K, 57:20-58:16.)
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III. LEGAL ARGUMENT Defendants face a formidable burden in obtaining summary judgment. Defendants must
demonstrate that “. . . 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). The reviewing court does not make factual determinations itself, or decide which edition of the facts to accept; it merely determines whether “. . . a fair-minded jury could return a verdict for the plaintiff on the case presented.” Lipsett v. University of Puerto Rico, 864 F.2d 881, 895 (1st Cir. 1988). The record is reviewed in the light most favorable to the non-moving party. Rossy v. Roche Products, Inc., 880 F.2d 621, 623 (1st Cir. 1989). All factual inferences must be drawn in favor of the non-moving party. See Rossy at 623. Defendant’s burden is particularly onerous in discrimination cases. The First Circuit has counseled caution and restraint when deciding a summary judgment motion in a discrimination action because motion and intent play such a prominent role. See Oliver v. Digital Equipment Corp., 846 F.2d 103, 109 (1st Cir. 1988). Such questions of motive and intent are considered the realm of the jury. Rossy, at 624.
When one examines the evidence in its totality – including that substantial amount of evidence that the Defendants omitted from their discussion – it is clear that Defendants cannot obtain summary judgment. Instead, there is more than sufficient evidence on the record that could support a jury verdict for the Plaintiffs on all counts.
A. NO PROBABLE CAUSE EXISTED FOR THE SEARCH OF THE STUDENTS AND THEIR POSSESSIONS.
It is beyond cavil that the Coventry Police had no right to search the Central Falls players without consent. A search or seizure conducted without a warrant based upon probable cause has historically been deemed presumptively unreasonable, unless it falls within certain well-
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defined exceptions. See Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993). Probable cause does not exist unless the facts available to the officer would allow a reasonable person to believe that the search will yield evidence of a crime or evidence of a crime. See Texas v. Brown, 460 U.S. 730, 742, 103 S.Ct. 1535, 1543, 75 L.Ed.2d 502 (1983), citing Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879 (1949). “Probable cause” does not require certainty, but the officer’s mere suspicion or personal belief is not enough. United States v. Infante-Ruiz, 13 F.3d 498, 502. Instead, there must be a “fair probability,” based upon the totality of the circumstances, that the evidence or contraband will be found in the area to be searched. See United States v. Bartelho, 71 F.3d 436, 441 (1st Cir. 1995). Furthermore, probable cause must be supported by individualized suspicion. See, e.g., Ybarra v. Illinois, 444 U.S. 85, 110 S.Ct. 338, 62 L.Ed.2d 238 (1980).
There was a complete dearth of probable cause for this search. No individualized suspicion could be cast upon the Coventry players because there simply was no reason to suspect the Central Falls players to any greater degree than any other person on the campus at the time of the incident. At deposition, the Coventry officers attempted to justify their search on the basis that the Central Falls players had been in the locker room. (Ex. I, 69:7-24;Ex. J, 40:1-6.) However, the Coventry officers also admitted that the locker room was open and available to all, and virtually any person could have entered and taken the items -- including Coventry students. (Ex. I, 69:25-70:1; 70:4-7; Ex. J, 47:4-6; Ex. K, 46:2-5.) For that reason alone, there could have been no individualized suspicion of any of the Central Falls students. The simple fact that one was in an area in which a crime may have been committed has never been accepted as sufficient “probable cause” for a search of one’s person or possessions. See, e.g., Ybarra, at 91, citing Sibron v. New York, 392 U.S. 40, 62-63, 88 S.Ct. 1889, 1902, 20 L.Ed.2d 917 (1968).
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In any case, all of the Central Falls students were searched, rather than the mere five or six students who had used the locker room. The mere fact that some of them had been in the locker room did not create probable cause as to all of the students. Simply being with associated with others who may have been involved in criminal activity is similarly not enough to establish “probable cause.” United States v. Khounsavanh, 113 F.3d 279, 287 (1st 1997); United States v. Sepulveda, 102 F.3d 1313, 1315 (1st Cir. 1996). Accordingly, even if we accepted the proposition that there could be probable cause for the students who had used the locker room, there was still no probable cause for a search of the entire team.
The demand for a search is even more egregious when one considers that the police had never made any serious attempt to ascertain that a theft had taken place, much less of precisely what items were missing. The Coventry Police never made any effort to determine if the items had merely been misplaced. (Ex. I, 71:17-72:7; Ex. J, 40:14-17; Ex. M, 28:23-29:1.) The Coventry officers never even ascertained precisely what was missing so that they could identify the missing items. No description was even sought of the cell phones and iPods first said to be missing, whether by size, color, make, or model. (Ex. I, 66:13-67:4, 67:5-9; Ex. J, 39:14-22, 62:5-14 61:19-62:4; Ex. K, 45:16-19, 45:20-23; Ex. M, 27:1-18.) That lack of basic information rendered the search itself little more than a “fishing expedition.”
Worse, the police had been given information clearly exculpating the Central Falls team. The officers freely admitted at deposition that they had been made aware that Coach Marchand had already searched his players, and had not found the missing items. (Ex. H, 26:22-27:4; Ex. I, 76:22-25; Ex. J, 46:3-5; Ex. K, 43:25-44:2.) At least one of the Coventry officers appears to have been fully aware of the fact that there was no reason to suspect the Central Falls team of any wrongdoing. That officer indicated to Plaintiff Milton Ricuarte, Jr. during the search that the
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search was “stupid” not only because their coach had searched them, but also because the police knew that a security officer had been with the boys who had used the locker room the entire time. (Ex. B, 57:18-14.)
The search of the Central Falls team, then, was inherently unreasonable. The Coventry Police knew or should have known that there was simply no reason at the time to suspect the Central Falls students of theft. If anything, there was even less reason to suspect the Central Falls players than others. Nevertheless, the Coventry Police embarked on a thorough public rummaging through the Central Falls’ players belongings and persons, without even so much as a clear idea of what they were looking for. This type of police behavior can never be considered reasonable under any concept of ordered liberty, but can only be construed as a Constitutionally obnoxious “dragnet” tactic.
B. THE CLEARLY ESTABLISHED LAW AT THE TIME OF THE SEARCH DID NOT GRANT COACH MARCHAND AUTHORITY TO CONSENT TO THE SEARCH OF THE STUDENTS.
In their supporting Memorandum, the Defendants did not attempt to argue that any exceptions to the probable cause and warrant requirements existed. Defendants instead take cover behind a claim that Coach Marchand had consented to the search in an in loco parentis capacity. As a fallback position, Defendants rely upon the qualified immunity defense.
Defendants’ effort at Constitutionally sanitizing their actions is unavailing. “Qualified immunity” does not shield government officials from actions that they reasonably should have known were violative of another’s Constitutional rights at the time. See Cookish v. Powell, 945 F.2d 441, 442 (1st Cir. 1991), citing Newman v. Massachusetts, 884 F.2d 19, 26 (1st Cir. 1989). Instead, it must be determined whether the state of the law, as it existed at the time of the search,
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would have put the Defendants on fair notice that their acts or omissions were unconstitutional. See Hope v. Pelzer, 536 U.S. 730, 740, 122 S.Ct. 2508, 2516, 153 L.Ed.2d 666 (2002).
This test is entirely objective; the officer’s good faith belief in the Constitutionality of his actions or omissions is irrelevant. See Harlow v. Fitzgerald, 457 U.S. 800, 816-20, 102 S.Ct. 2727, 2737-2739, 73 L.Ed.2d 396 (1982). The court must proceed on “. . . the juridical equivalent of an archelogical dig.” Savard v. Rhode Island, 338 F.3d 23, 28 (1st Cir. 2003) The court must examine the controlling case law in its own jurisdiction at that time of the action or omission complained of. Id.at 28. If none exists, the court must attempt to determine whether there is consensus elsewhere. Id. In that quest, the court should look to all available case law. Hatch v. Dept. for Children, Youth and their Families, 274 F.3d 12, 22-23 (1st Cir. 2001).
Furthermore, it is not required that the plaintiff produce pre-existing case law expressly forbidding the precise conduct in question. See Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). As First Circuit Court Judge Selya recently suggested, to suggest otherwise would be to view a Constitutional violation in the same light as dog bite under common law, in that the first bite would always be free. See Bergeron v. Cabral, 2009 WL 580795 (1st Cir.) Therefore, if the authorities existing at the time are sufficiently particularized so that a reasonable official could extrapolate from them and conclude that his particular action or omission would violate the law, then the official cannot assert the qualified immunity defense. Savard, at 28, citing Saucier v. Katz, 533 U.S. 194, 201-02, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001).
The law is more than sufficiently clear on the point of Coach Marchand’s lack of authority to consent to a search. Under case law established at the time, Coach Marchand, in his capacity as school official, had far less than that unbridled in loco parentis authority over the
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students that the Defendants would suggest; as a government official, his authority was Constitutionally cabined. Under the circumstances, Coach Marchand plainly could not have conducted a search of the team members, even under the relaxed standards for student searches established in the United States Supreme Court’s decision, New Jersey v. T.L.O., 469 U.S. 325, 105 S.Ct. 733 (1985). Because Coach Marchand himself could not have required a search of his students under these circumstances, it defies logic to declare that he could have authorized such a search on his student’s behalf by a policeman. Even if we did accept the proposition that Coach Marchand had the authority to consent to a search, that consent was hardly voluntary in nature. Accordingly, any purported consent given by Coach Marchand was void as a matter of clearly established law, and qualified immunity cannot apply.
1. Under the Clearly Established Law at the Time of the Search, Coach Marchand Did Not Stand In Loco Parentis With Respect to the Students for the Purpose of Granting Consent to Search.
Defendants’ assertion regarding the extent of Coach Marchand’s authority over the Central Falls players is flawed for the simple reason that it is seriously outdated. It is true that at one point, courts did consider a school official’s relationship with the student to be in loco parents by nature. See James Rapp, Education Law, § 8.01[2][b][ii] (2002). Where public school students are concerned, the in loco parentis doctrine has been separated from Fourth Amendment jurisprudence for at least thirty years.
The in loco parentis doctrine, in its most classical sense, places the schools “in the place of the parent,” with all of a parent’s rights and responsibilities. In other words, when a child was placed in a care of a teacher, the parent delegated to that teacher all of his rights and responsibilities. See id. However, especially during the last century, it has become apparent that that delegation is not complete. Nobody would seriously argue that a teacher has the right to
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make a number of the various types of decisions entrusted to parents – for example, decisions as
to the student’s health care. A teacher’s in loco parentis with relationship to the student instead
begins and ends with respect to matters directly related with that student’s education. See People
v. Jackson, 319 N.Y.S.2d 731, 733-734 (1971).
During the last half of the last century, the United States Supreme Court similarly came
to realize that the in loco parentis doctrine really represented no more than a relic of a day when
most schools were privately operated, and simply did not mesh with a state-operated system of
compulsory education. In 1985, with the Court’s decision in T.L.O., it was firmly established
that a student’s right to be free of unreasonable search and seizure under Fourth Amendment, in
common with a student’s First Amendment rights and rights to due process, could not be
smothered under the in loco parentis doctrine:
Notwithstanding the general applicability of the Fourth Amendment to the activities of civil authorities, a few courts have concluded that school officials are exempt from the dictates of the Fourth Amendment by virtue of the special nature of their authority over schoolchildren. See, e.g., R.C.M. v. State, 660 S.W.2d 552 (Tex. App. 1983). Teachers and school administrators, it is said, act in loco parentis in their dealings with students: their authority is that of the parent, not the State, and is therefore not subject to the limits of the Fourth Amendment. Ibid.
Such reasoning is in tension with contemporary reality and the teachers of this Court. We have held school officials subject to the commands of the First Amendment, see Tinker v. Des Moines Ind. Cmty. Sch. Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969), and the Due Process Clause of the Fourteenth Amendment, see Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975). If school authorities are state actors for purposes of the constitutional guarantees of freedom of expression and due process, it is difficult to understand why they should be deemed to be exercising parental rather than public authority when conducting searches of their students. More generally, the Court has recognized that “the concept of parental delegation” as a source of school authority is not entirely “consonant with compulsory education laws.” Ingraham v. Wright, 430 U.S. 651, 662, 97 S.Ct. 1402, 1407, 51 L.Ed.2d 711 (1977). Today’s public school officials do not merely exercise authority voluntarily conferred on them by individual parents; rather, they act in furtherance of publicly mandated educational and disciplinary policies. See, e.g., the opinion in State ex
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rel. T.L.O., 94 N.J., at 343, 463 A.2d, at 934, 940, describing the New Jersey statutes regulating school disciplinary policies and establishing the authority of school officials over their students. In carrying out searches and other disciplinary functions pursuant to such policies, school officials act as representatives of the State, not merely as surrogates for the parents, and they cannot claim the parents’ immunity from the strictures of the Fourth Amendment. Id. at 336. The T.L.O. Court proceeded to establish a “reasonable suspicion” standard on school officials’ ability to search students suspected of violation of law or school rules. Id. at 341-42. Since T.L.O., the Court has only had two occasions upon which to revisit the issue of school officials’ relationships with their students in regards to searches. These cases were limited to the specific issue of schools’ ability to make random drug testing a condition of participation in athletics and extracurricular activities See Bd. of Educ. of Ind. Sch. Dist. No. 92 of Pottawatomie County v. Earls, 536 U.S. 822, 122 S.Ct. 2559 (2002); Vernonia Sch. Dist. v. Acton, 515 U.S. 646, 115 S.Ct. 2386 (1995). The Court found in favor of the schools under a “special needs” exception, that is, the school officials’ unique need to ensure a drug-free school environment that went beyond ordinary law enforcement. Earls, at 836; Vernonia, at 653-54. However, neither case reinstated any notion of an “in loco parentis” relationship between school and student where searches were concerned. Public school officials instead had the status of governmental actors. Even prior to T.L.O., courts had considered and rejected the proposition that a police officer could rely upon the “consent” of school officials to obtain permission to search. The case of Picha v. Wielgos, 410 F.Supp. 1214, 1218 (N.D. Ill. 1976) involved a search of female students directed by outside police officers for purposes finding illegal drugs on the students’ possessions.3 The Picha Court held that such a police-directed search could not pass
3 The actual search of these students was done by female school personnel, apparently in light of the students’ gender.
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Constitutional muster based on the in loco parentis authority of school officials alone: “. . .
whatever may be the consent to the discretion of the school officials deemed constructively made
by the parent or student, it cannot vitiate the constitutional expectation of privacy which decrease
the need for levels of suspicion and/or exigency in the conduct of a criminal investigation.” Id.
at 1221. The Picha Court, then, freely recognized the dangers of allowing the in loco parentis
doctrine to be applied where the police knock on the school door. Permitting the application of
that doctrine when that child is in the custody of school officials simply makes it all too easy to
allow those officers to circumvent limitations on search and seizures that would apply to that
student outside of school.
Closer to home, Rhode Island law also undermines the conclusion that Coach Marchand,
as a school official, possessed in loco parentis authority with respect to searches by police. Just
one year prior to this incident, the General Assembly passed legislation governing police
interrogations of students while attending school. Those statutes provide, in pertinent part:
(a) Before making a high school pupil under eighteen (18) years of age available to a law enforcement officer for the purpose of questioning, the principal of the school, or his or her designee, shall inform the pupil that the pupil has the right to request that his or her parent or guardian or an adult family member, or person on the list of emergency contacts for the pupil be present during the questioning.
(b) If the person selected by the pupil cannot be made available within a reasonable period of time, not exceeding one hour, or declines to be present at the questioning, the principal or his or her designee shall inform the pupil that the pupil may select as an alternate, a school administrator, school counselor, or school teacher who is reasonably available to be present during the questioning.
(c) If the person selected by the pupil declines to be present during the questioning, the principal, or his or her designee, shall so inform the pupil and advise the pupil that the principal, or his or designee, will be present during the questioning if the pupil so requests.
(d) If the pupil exercises his or her right, pursuant to this subsection, to have one of the persons designated in paragraph (a), (b) or (c) present during the questioning, the pupil may not be made available to the law enforcement officer
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for questioning until that person is present. P.L. 2005, ch. 409, § 1, codified at R.I.G.L. § 16-21.5-3. This statute, on its face, requires that when minor high school students – such as the Plaintiffs – are sought for police questioning while at school, the school officials must take affirmative steps to ensure that the student may consult with his or her parents. This statute made it clear that the task of making legal decisions for the student in this situation – such as whether to be interviewed or not -- was not to be automatically delegated to the school administrators in an in loco parentis capacity. Instead, the parents’ control over these situations was to be preserved. It is hardly consonant with this statute to declare that school officials have an in loco parentis authority to consent to a bodily search of the student by police.4
Given this legal background, the in loco parentis doctrine is a wilted, dead reed to grasp in an attempt to haul the Defendants’ actions out of Constitutional deep water. In the first instance, Coach Marchand’s in loco parentis authority clearly extended only to those matters related to the team members’ educations. The decision as to whether to consent to a police search implicates far broader matters. A consent to a search involves a waiver of important legal rights – and, possibly, affects the student’s future far after graduation. By consenting to a search, one does not only agree to relinquish one’s interest in privacy in the thing or place being searched. One also accepts the possibility that the fruits of that search might be used as evidence against one. Whether a student should waive one’s rights in a criminal law setting is one that clearly goes far beyond an educator’s responsibilities.
4 It is also worth noting that the Coventry Police itself recognized the primacy of the parents when approaching minors. Written policy of the Coventry Police Department specifically called for parents to be contacted when minors were being interviewed by police. (Ex. L.) (Ex. J, 33:23-25; Ex. K, p. 27:7:16.)
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Even more significantly, the Supreme Court had made clear almost thirty years ago that for Fourth Amendment purposes, a public school teacher is not and is never to be confounded with a student’s parent. Instead, that teacher, like the police officer, is a government actor, whose authority to search is constrained. As we shall explore more deeply in the next section, the limits of the teacher’s authority to search necessarily limits the teacher’s authority to give another permission to search.
2. Under the Clearly Established Law at the Time of the Search, Coach Marchand as a School Official Lacked the Authority to Perform the Search of the Students Himself Under the Factual Circumstances and Therefore Could Not Authorize the Same.
It plainly defies logic to declare that one can authorize another to perform an act that one is expressly forbidden to undertake oneself. Defendants’ argument in favor of Coach Marchand’s authority to consent to search is hopelessly infected by that very type of logical flaw. Under clear law in place at the time of the search, Coach Marchand, as a public school official, could not simply search his charges whenever he wished, but was held to a “reasonable suspicion” standard. Because Coach Marchand did not have that “reasonable suspicion,” he himself was forbidden to conduct a search and therefore could not have given the Coventry Police the permission to do the same.
The T.L.O. Court was loathe to impose a “probable cause” regime upon school officials. Nevertheless, the T.L.O. Court recognized a need for restrictions on school officials’ ability to search students accused of wrongdoing. Under T.L.O., one must consider whether the search was justified at its inception, and whether the search was reasonably related in scope to the purposes of the search. Id. at 341-42. A search by a school official is only justified at its inception if the school official has a reasonable belief that the search will uncover evidence of wrongdoing by the student. Id.
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We anticipate that the Defendants may point to later cases involving random drug searches as overturning T.L.O. Subsequent to T.L.O., the Court did find that school officials could require suspicionless, random drug testing as a condition of participation in athletics and extracurricular activities. Earls, at 836; Vernonia, at 653-54. We also believe that the Defendants may point to this Court’s own decision in Brousseau v. Town of Westerly, 11 F.Supp.2d 177 (D.R.I. 1998). The Brousseau case involved a “pat-down” of a group of elementary schoolchildren to locate a missing pizza knife with a nine-inch serrated blade. Id. at 179.
None of these cases should be construed as a wholesale defenestration of the requirement of reasonable suspicion, as applied to searches of public school students suspected of actual wrongdoing. Instead, these cases are more properly understood to belong to the class of “special needs” cases. See especially Shade v. City of Farmington, 309 F.3d 1054, 1060 (8th Cir. 2002); Desroches v. Caprio, 974 F.Supp. 542, 548-49 (E.D. Va. 1997), overturned on other grounds, 156 F.3d 571 (4th Cir. 1998). Before such a “special need” is found, one must carefully consider the nature of the intrusion, and balance that against the governmental interest involved. Vernonia, at 654-661. When one applies this calculus to the instant situation, it is apparent that Vernonia, Earls, and Brousseau are wholly inapposite to this situation.
First, the evils that the searches were to avoid were far more pressing in Vernonia, Earls, and Brousseau than in the present instance. The searches were aimed solely at student safety. In Brousseau, the danger was immediate: there was a strong possibility that a child had in his or her possession a knife capable of inflicting serious or even fatal injury, and there was no other efficacious way of ensuring otherwise. Id. at 182. In Vernonia and Earls, the danger was illegal, and potentially lethal substances. Earls at 835; Vernonia at 662.
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Second, the nature of the intrusions in Vernonia, Earls, and Brousseau was far more limited. In Brousseau, the search was limited to a mere “pat down.” Id. at 179. In Vernonia and Earls, the intrusion was minimized by the fact that the students were informed in advance that the drug tests would be required, and could be avoided by simply not going out for activities or the team. Earls at 832; Vernonia, at 657. Additionally, the search was limited solely to evidence of illegal drug use, and results of the search were kept confidential. Earls at 833; Vernonia, at 658. The drug tests were conducted in a truly random fashion, thus avoiding the possibility that unpopular groups were being targeted. Earls, at 837. Most significantly, the results were not used for either law enforcement or even school disciplinary purposes. Earls at 833-34; Vernonia, at 658.
Here, the level of need for the search was far lesser. There was no pressing safety concern here. All that had happened here was that a student may or may not have been deprived of his cell phone or iPod. Although many adolescents have certainly argued to their parents that death or other immediate and irreparable harm would result from deprivation of a cell phone or iPod, none have been able to produce reliable evidence to support such a claim. There was therefore no “safety” need resulting from the disappearance of these devices justifying a suspicionless search.
It is true that Coach Marchand did give the purported “consent” out of concern for student safety under the near-melee conditions. However, even these concerns do not bring the search within the orbit of Vernonia, Earls, and Brousseau. No court has ever accepted the proposition that you may be compelled to give up your Constitutional rights simply because you have been ganged up on and ordered that you surrender that right to ensure your safety. That is precisely what took place here where the bus was blocked in and the crowd declared that the
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Central Falls team was not leaving until the items were found. (Ex. H, 25:5-8.) More importantly, the search in no way contributed to student safety. If anything, the manner in which the searches were conducted increased the danger to the students rather than allayed it. The students were at least relatively secure on the bus. The Coventry Police’s search removed them from that refuge. Exposing a student to greater danger was hardly what the Vernonia or Earls Court had in mind.
Not only did the search lack any legitimate safety concern, but the searches were also far more intrusive than those in Vernonia, Earls, or Brousseau. Unlike in Vernonia or Earls, there was no way the students could have anticipated that this type of search would be demanded of them. The student’s bags were thoroughly searched, and the students were forced to lift clothing to the bare skin. The searches were not conducted in a confidential manner. Instead, the students were forced to spend an hour before a hostile crowd that was filming the event. This was far more intrusive than a brief “pat down” or a quickly administered urine test.
Accordingly, the suspicionless searches here were wholly unlike the “special needs” searches authorized by Vernonia, Earls, or Brousseau. For that reason, none of these cases applied to this situation. Instead, the T.L.O. standard prevailed for these students, and reasonable suspicion was needed before Coach Marchand could authorize a search.
By the time the Coventry Police arrived, Coach Marchand had no reasonable suspicion that his students had engaged in any wrongdoing.5 As we discussed in Subsection A above, there was no reason to suspect any Central Falls student any more than anybody else. Coach Marchand himself never even suspected his team at all. He specifically told them before the police arrived that he did not believe that they had stolen anything. (Ex. B, 29:10-18.) By the
5 We also observe that Coach Marchand’s initial search was highly suspect under T.L.O.
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time that he searched the students, he was “completely satisfied” that they had done nothing wrong. (Ex. H, 15:9-12; 23:4-8.) At the inception of the search allegedly “authorized” by the police, then, Coach Marchand had no “reasonable suspicion,” and therefore could not have required a search of the students.
In summary, there is no way that the existing case could be stretched to find authority for Coach Marchand to search the students under these factual circumstances. His authority to demand a search of the boys never existed because he never had any type of suspicion of them at all. Therefore, he could not simply authorize the Coventry police to do it. To state otherwise risks actual violence to students’ Fourth Amendment rights. If all an overreaching teacher needs to do is to call a police officer and give “permission” for that officer to search that student, then there is little or no point to granting students a right to freedom from unreasonable search and seizure from their teachers in the first place. That kind of evasion is clearly not what the T.L.O Court had in mind, and should not be countenanced here.
3. Notwithstanding the Presence of Coach Marchand, the Clearly Established Case Law at the Time of the Search Continued to Hold the Coventry Officers to the Same Standard for Searches and Seizures of the Central Falls Players as Would Be Applied to Any Other Citizen.
An even more recent line of cases further illuminates Coach Marchand’s lack of authority to provide consent to search of the students. In recent years, many schools use “school resource officers,” or “liaison officers,” officers who are actually employed by the school districts or who are regularly assigned to the schools as their “beat.” Coventry, as with many other districts in Rhode Island, has similarly adopted the practice of using “school resource officers. In Coventry, the School Resource Officer (SRO) is the law enforcement officer assigned to the school or school district. The SRO also serves as a “. . . point of contact for the student and faculty for intervention,
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mediation, peer mediation, referral to outside agencies . . .” The SRO also serves as “. . . a visible role model and familiar face to the student and faculty.” (Ex. G, 13:12-23.)
A number of jurisdictions have chosen to treat “school resource officers” or “liaison officers” as school officials, and thus applied the “reasonable suspicion” standard granted to school officials under T.L.O., whether that “school resource officer” is acting in his own capacity in maintaining a safe school environment, or is acting at the behest of another school official. See Shade v. City of Farmington, 309 F.3d 1054, 1060-61 (8th Cir. 2002); Cason v. Cook, 810 F.3d 188, 192-93 (8th Cir. 1987); In re Alexander B., 220 Cal.App.3d 1572, 1577, 270 Cal.Rptr. 342 (Cal.App. 1990); State v. D.S., 685 So.2d 41, 43 (Fla. App. 1997); People v. Dilworth, 661 N.E.2d 310, 317 (Ill. 1996); T.S. v. State, 863 N.E.2d 362, 371 (Ind.App. 2007); In the Matter of Ana E., 2002 WL 264325, *4 (N.Y. Fam. Ct.); In the Matter of D.D., 554 S.E.2d 346, 353 (N.C.App. 2001); In re Murray, 525 S.W.3d 496, 498 (N.C.App. 2000); In the Matter of Josue T., 989 P.2d 431,437 (N.M. 1999); Commonwealth v. J.B., 719 A.2d 1058, 1065-66 (Pa. Super. 1998); Russell v. State, 74 S.W.3d 887, 891-92 (Tex.App. 2002); State v. Angelina D.B., 564 N.W.2d 682, 690-91 (Wis. 1997). The rationale for allowing such a relaxed standard for SROs is that the SRO essentially functions as a school official, and acts in aid of the school officials’ function of maintaining campus discipline and order. Angelina D.B.. at 688.
Notwithstanding the line of cases, the standard for searches and seizures remains unchanged for outside police officers not acting at the behest of school officials. The T.L.O. Court specifically warned that its ruling regarding “reasonable suspicion” should not be construed as applying to searches “. . . conducted by school officials in conjunction with or at the behest of law enforcement agencies.” Id. at 342, n.7. Both before and after T.L.O., outside police officers who performed student searches sua sponte have always been held to the same
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Fourth Amendment standards as any other police officer. See R.D.S. v. State, 245 S.W.3d 356, 369 (Tenn. 2008); M.D. v. Smith, 504 F.Supp.2d 1238, 1245 (M.D. Ala. 2007); State v. Tywane H., 933 P.2d 251, 255 (N.M. App. 1997); M.J. v. State, 399 So.2d 996, 998 (Fla.App. 1981); Waters v. United States, 311 A.2d 835, 837-38 (D.C. App. 1973). Courts have steadfastly refused to budge from these standards even where the outside officer acted when the child was in the custody of school officials or was at school at the time the officer chose to do the search. See In the Interest of Thomas B.D., 486 S.E.2d 498, 500 (S.C. App. 1997); F.P. v. State, 528 So.2d 1253, 1254 (Fla. App. 1 Dist. 1988) (probable cause standard applied in search of student being questioned regarding auto theft outside of school). The rationale for maintaining the probable cause standard outside police officers not acting at the behest of school officials is obvious. If we are to accept the proposition that a student’s mere presence at school lowers the standard for police searches, then the students’ rights to be free of unreasonable searches from the police would be eviscerated.
A similar evisceration would be worked if we permitted school officials to grant outside officers “consent” to search students for matters unrelated to school discipline. All that the police officer would need to do to circumvent the probable cause requirement is to wait until the student goes to school and persuade a school official to give “permission” to perform the search. In a day and age in which the police are already present on numerous school campuses, in the persona of the SRO, it is all too easy to envision the development of such a collusive relationship. Allowing the application of in loco parentis doctrine to give outside officers access to students is wholly incongruous with a line of cases that has insisted that outside officers must be held to the same Fourth Amendment standards that would apply to students outside of school. Picha, at 1221.
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Here, there is no question that the Coventry Police were in any way acting in aid of Coach Marchand in his disciplinary function. None were School Resource Officers.6 (Ex. I, 24:25-25:2; Ex. J, 29:6-7; Ex. K, 53:9-10.) More importantly, even before the police arrived, Coach Marchand had already completed his own investigation and satisfied himself that the boys had done nothing wrong. Therefore, he had no desire or need for assistance in his disciplinary function. The relationship between the Coventry Police officers and Coach Marchand was hardly a cooperative one, but had been an adversarial, law-enforcement type of search from the beginning. As one of the officers testified, the reason they wanted to do their own search was to see if Coach Marchand was telling the truth about the boys. (Ex. I, 77:1-4.) Therefore, the Coventry Police cannot be said to have been aiding Coach Marchand in his disciplinary role over the students, and cannot be permitted to take advantage of any relaxed Fourth Amendment standard. Further, they were not permitted to take advantage of any in loco parentis authority so as to circumvent the Fourth Amendment.
4. Coach Marchand’s Purported “Consent” to the Search Was Not Knowing and Voluntary.
Even if we accepted the proposition that Coach Marchand could have given a valid “consent” to the search of his students, the consent in this case was invalidated by the coercive circumstances under which it was obtained. In order for a consent to a search to be valid, the government must show that that consent was freely and voluntarily given, rather than the product of coercion. United States v. Jones, 523 F.3d 31, 37 (2008). The question of whether the consent was freely and voluntarily given is one of fact, and requires “. . . an examination of the totality of the circumstances surrounding the relevant transaction between law-enforcement authorities and the consenting parties.” Id., citing United States v. Pérez-Montañez, 202 F.3d
6 Kennedy had only graduated from Police Academy in March of 2006. (Ex. M, 14:21-15:3.)
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434, 438 (1st Cir. 2000). Coercion may be express or implied. Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 2048, 36 L.Ed.2d 854 (1973) Consent may not be the product of an illegal detention. United States v. Jenson, 462 F.3d 399, 407 (5th Cir. 2006). Similarly, the threat of violence or deception may invalidate consent to a search. See United States v. RosarioDiaz, 202 F.3d 54, 69 (1st Cir. 2000); United States v. Kampbell, 574 F.2d 962, 963 (8th Cir. 1978)
The evidence on the record can support the conclusion that the Coventry Police not only failed to defuse an already inherently coercive situation, but actively contributed to and exploited it. At the time the Coventry Police arrived, the Central Falls bus was already blocked in by the mob and could not leave. The Coventry Police blocked in the bus with their vehicles, thus contributing to a completely unwarranted detention, since there was no probable cause, or even reasonable suspicion. (Ex. D, 31:15-32:6; Ex. H, 43:15-24.) Worse, the Coventry Police at no point took any effective action to dissipate the crowd or otherwise stop the harassment. (Ex. H, 16:3-7, 27:5-9, 45:8-13.) Coach Marchand expressed fear of the crowd to the Coventry officers, and appealed to them for assistance in extricating him and his players from this dangerous situation, asking them: “. . . what am I going to do, what are they going to do to us.” (Ex. H, 27:23-24.) No real help was offered except for the search that the crowd was demanding.
Furthermore, there was an element of deception in the Coventry Police’s actions. The Coventry Police portrayed their actions as helpful to Coach Marchand in his predicament, in at least appeasing the crowd and defusing a hostile situation. (Ex. H, 28:2-5.) However, as the officers later admitted, that was not their true intention. They had instead decided to determine if Coach Marchand was telling the truth about the players – and seek evidence against the boys to be used against them. (Ex. I, 77:1-4.)
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Under these circumstances, no “consent” to search can or should be considered valid. There are few situations more coercive than being held prisoner by an angry mob while the police tacitly permit that imprisonment to continue. Coach Marchand and his players had the same right to police protection from wrongful imprisonment as anybody else on the campus. Nevertheless, that protection was withheld. Instead, it was implied that protection could only be had if there was a consent to a search. For that reason, even if Coach Marchand were legally in the position to give valid consent for a search of the boys as their coach, the consent that he did give was hopelessly tainted by coercion.
C. THE DEFENDANTS ARE NOT ENTITLED TO SUMMARY JUDGMENT ON COUNT IV (INVASION OF PRIVACY).
The Defendants seek summary judgment on Plaintiffs’ state law invasion of privacy claim on virtually the same grounds as they seek summary judgment on Plaintiffs’ § 1983 claims. They assert that that there can be no invasion of privacy claim for a constitutionally permissible search. Furthermore, they assert that a qualified immunity similarly exists for government officials in invasion of privacy complaint, citing Hatch v. Town of Middletown, 311 F.3d 83 (1st Cir. 2002), which in turn cited Pontbriand v. Sundlun, 699 A.2d 856 (R.I. 1997) and Ensey v. Culhane, 727 A.2d 687 (R.I. 1999).
Defendants overstate the effects of Hatch, Pontbriand, and Ensey. As Hatch itself acknowledged, neither Pontbriand nor Ensey ever actually made any ruling on whether “qualified immunity” would be applied to claims brought against state officials under R.I.G.L. § 9-1-28.1. Hatch at 90. Since Hatch, the Rhode Island Supreme Court has not yet had the opportunity to reach this issue of state law on its own. In any case, as we have outlined above, the Defendants were not entitled to qualified immunity in this situation. Therefore, their attempt to obtain summary judgment on this count must fail.
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D. THE DEFENDANTS ARE NOT ENTITLED TO SUMMARY JUDGMENT ON COUNT II (EQUAL PROTECTION).
The Defendants also attempt to obtain summary judgment on Count II of Plaintiffs’ complaint, a § 1983 claim for violation of their right to equal protection. The Defendants claim that they are entitled to summary judgment because there was no evidence that the Plaintiffs were treated differently than others similarly situated based upon their race. There is more than sufficient evidence to support a jury finding to the contrary.
The Defendants misstate the calculus applied in Equal Protection claims. They rely heavily on the lack of direct evidence of discriminatory animus. However, the courts readily recognize that there is seldom any direct evidence of discriminatory animus in an Equal Protection case. Therefore, intent to discriminate may be shown by circumstantial evidence. Judge v. City of Lowell, 160 F.3d 67, 77 (1st Cir. 1998).
The circumstantial evidence on the record supports an inference that the Plaintiffs were indeed singled out for different treatment than others similarly situated based upon their race. The Town of Coventry is predominately white, as was its school population at that time. (Ex. E.) The Central Falls team, coming from an ethnically diverse community, with a team composition including a number of Hispanics, was alone singled out for a search. (Ex. F.) In fact, nobody but the Central Falls team was even asked to agree to a search. (Ex. I, 74:4-7.) This was true despite the fact that the Coventry Police were fully aware that although the crowd may have decided that the Central Falls team were “prime suspects,” there was no rational basis for that belief. The Coventry Police admitted at deposition that virtually anybody in that crowd, including the Coventry students themselves, could have had access to the locker room and could have stolen the items. (Ex. I, 69:25-70:1; 70:4-7; Ex. J, 47:4-6; Ex. K, 46:2-5.) In fact, the
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evidence suggests that the Coventry Police were fully aware that the Central Falls players were innocent, because the ones who had been in the locker room had been accompanied by a security guard the entire time. (Ex. B, 57:18-58:14.) Under these circumstances, it is virtually impossible for the Coventry Police to state that they did not treat the Central Falls team differently than the Coventry students.
Furthermore, their explanation for that differential treatment is patently irrational. At deposition, the Coventry officers explained the differential in treatment by declaring that all of the Coventry students were “victims.” (Ex. I, 73:7-74:5.) In light of the fact that the Coventry officers also admitted that the Coventry students were just as much in a position to have taken the items, these “reasons” for treating the Central Falls students differently are wholly unworthy of credence.
The Defendants also attempt to escape liability by claiming that the racial bias really stemmed from the crowd, rather than themselves. This argument is a red herring. While there is no direct evidence of racial bias on the part of the Coventry officers themselves, there is certainly evidence that they put their police powers at the disposal of a crowd that had a great deal of animus towards the Plaintiffs based upon their race. The crowd vociferously ascribed to the Central Falls players the traits of dishonesty based upon their race, spat racial epithets, and repeatedly demanded a search. (Ex. D, 27:13-28:5; Ex. H, 24:15-25:25.) As discussed in the Subsections above, the Coventry officers took no effective action to stop this harassment. Instead, they worked to secure the very search that the crowd was demanding. A government official who acquiesces to another’s demand that a racial minority receive less favorable treatment must be deemed as guilty of an Equal Protection violation as an official who acts upon
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a personally espoused racial hatred. In such cases, whether the official personally shared the bias or not, the result is the same: the disfavored minority was denied the equal protection of the law.
There is, then, more than sufficient circumstantial evidence on the record to support an inference that the Defendants treated Plaintiffs less favorably based upon race. For that reason, Defendants cannot receive summary judgment.
E. THE DEFENDANTS ARE NOT ENTITLED TO SUMMARY JUDGMENT ON COUNTS V AND VI (RACIAL PROFILING AND RACIAL/NATIONAL ORIGIN INTIMIDATION).
In their quest to gain summary judgment on Counts V and VI, Defendants rely upon the same arguments as made for the dismissal of the equal protection claims. These arguments should be equally unsuccessful on Counts V and VI. IV. CONCLUSION
For the above-referenced reasons, Defendants’ Motion for Summary Judgment should be DENIED.
Plaintiffs, By their attorney, /s/ Stephen M. Robinson Stephen M. Robinson, #2103 The Law Offices of Stephen M. Robinson 155 South Main Street, Suite 402 Providence, RI 02903 (401) 331-5353 fax 331-7373 April 27, 2009
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/s/ Vicki J. Bejma Vicki J. Bejma #6498 The Law Offices of Stephen M. Robinson 155 South Main Street, Suite 402 Providence, RI 02903 (401) 331-5353 fax 331-7373 April 27, 2009 CERTIFICATION I hereby certify that the within document has been electronically filed with the Court on April 27, 2009, that it is available for viewing and downloading from the ECF system, and that the counsel of record listed below will receive notice via the ECF system: Marc DeSisto, Esq. marc@desistolaw.com /s/ Vicki J. Bejma
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Case 1:08-cv-00123-S-DLM Document 31 Filed 06/09/09 Page 4 of 15 PageID #: 275
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Case 1:08-cv-00123-S-DLM Document 31 Filed 06/09/09 Page 12 of 15 PageID #: 283

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 Case 1:08-cv-00123-S-DLM Document 34 Filed 07/16/09 Page 1 of 10 PageID #: 289

UNITED STATES DISTRICT COURT DISTRICT OF RHODE ISLAND

Juan Lopera, et al. his parent and next friend, Lilian Giraldo;
vs.
TOWN OF COVENTRY, et al.

: : C.A. No: 08- 123 : : : :

PLAINTIFFS’ REPLY TO DEFENDANTS’ SUPPLEMENTAL MEMORANDUM

This matter came before this Honorable Court on Defendants’ Motion for Summary Judgment on all counts of Plaintiffs’ Amended Complaint. At issue was whether the Defendant Coventry Police officers had violated the civil rights of the Plaintiffs, members of the Central Falls High School Soccer Team, by singling out the team for a mass search at the Coventry High School on or about September 28, 2006.
The Plaintiffs’ Amended Complaint had asserted a failure-to-train claim against the Town and former Chief O’Rourke. The Defendants’ original Motion did not address whether this claim ought to be summarily disposed. However, at the hearing of May 26, 2009, after clarifying whether Plaintiffs had indeed asserted such a claim, this Court ordered the Defendants to provide a supplemental memorandum on this aspect of Plaintiffs’ claim. At that hearing, another issue arose as to whether Coach Marchand’s alleged fear of the crowd’s actions created a question of fact relevant to the issue of whether Coach Marchand had validly consented to the search of the boys.
Defendants filed their Supplemental Memorandum on or about June 9, 2009. Plaintiffs now file their Reply thereto.

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A. THE DEFENDANTS ARE NOT ENTITLED TO SUMMARY JUDGMENT ON THEIR CLAIMS INVOLVING FAILURE TO PROVIDE APPROPRIATE TRAINING.
Plaintiffs brought a claim pursuant to 42 U.S.C. § 1983 asserting that the Coventry Chief of Police and the Town of Coventry failed to provide adequate training to the Defendant police officers who conducted the mass search. To sustain a § 1983 claim for failure to provide adequate police training, the Plaintiffs must show that the Chief and Town showed “deliberate indifference” to the rights of the individuals with whom their underlings would be in contact. City of Canton v. Harris, 489 U.S. 378, 388, 109 S.Ct. 1197, 1204, 103 L.Ed.2d 412 (1989). The Plaintiffs must also show that the lack of adequate training actually caused the deprivation of their constitutional rights. Id. at 391. Defendants assert that the Plaintiffs’ failure-to-train claim should be summarily disposed of because the Plaintiffs have not adduced evidence of any pattern of previous violations of constitutional rights similar to those sustained by the Plaintiffs. They argue that the lack of such a pattern of previous violations renders it impossible for Plaintiffs to show “deliberate indifference.” This argument misstates the law.
The First Circuit has specifically held that is no particular requirement that there be any pattern of constitutional violations similar to those experienced by the Plaintiffs. Young v. City of Providence, 404 F.3d 4, 28 (1st Cir. 2005); Swain v. Spinney, 117 F.3d 1, 11 (1st Cir. 1997), citing Bd. of County Comm’rs v. Brown, 520 U.S. 397, 117 S.Ct. 1382, 1391, 137 L.Ed 2d. 626 (1997); Gray v. Bostic, 458 F.3d 1295, 1308-09 (11th Cir. 2006). While evidence of such a pattern is certainly helpful, there are instances in which the need for training is so obvious that such a pattern of similar incidents is not necessary to establish the requisite “deliberate indifference.” Id. Instead, the requisite “deliberate indifference” may be shown where: 1) the policymaker(s) of the municipality knew to a moral certainty that its employees would confront a
2

Case 1:08-cv-00123-S-DLM Document 34 Filed 07/16/09 Page 3 of 10 PageID #: 291
given situation; 2) that the situation either presents the employee with a difficult choice of the sort that training or supervision will make less difficult or that there is a history of employees mishandling the situation; and 3) the wrong choice will frequently cause the deprivation of a citizen’s constitutional rights. Nicholson v. Scoppetta, 344 F.3d 154, 167 (2nd Cir. 2003).
Even without specific facts on the record, a reasonable person could easily perceive the moral certainty that a rank-and-file officer might be faced with the issue of a school official’s authority to consent to a search. That situation would arise simply due to the fact that minors necessarily spend a great deal of their time in the custody of school officials. Under R.I.G.L. § 16-19-1, all minors are statutorily required to attend school “. . . during all the days and hours that the public schools are in session in the city or town in which the child resides.” Minors who disobey this statute may be found wayward. R.I.G.L. § 16-19-6. Likewise, their parents may be criminally charged. R.I.G.L. § 16-19-1(a). The only exception to this statute is for those minors aged sixteen through eighteen, whose parents have taken the extraordinary step of allowing their children drop out pursuant to procedures established under R.I.G.L. § 16-19-1(b).
By legal necessity, then, all minors must spend a great deal of time in the custody of public school officials, simply because the compulsory education statutes forbid them to be anywhere else during school hours. The great amount of time that minors spend in the custody of school officials alone creates a readily foreseeable strong possibility that a police officer would confront the issue of a school official’s authority to consent to search. The possibility that a minor may be drawn into some confrontation with the police while in school custody has only expanded since the passage of our compulsory education statutes. Police today do not go to the public schools only when they are summoned to deal with a specific problem. Today, the police are now present at many schools as a matter of course. An ever-increasing number of districts
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Case 1:08-cv-00123-S-DLM Document 34 Filed 07/16/09 Page 4 of 10 PageID #: 292
now retain “school resource officers” whose specific duty is to assist school officials in maintaining order.1 By the time of this incident, Coventry had in fact joined the growing number of these districts retaining school resource officers. (Ex. O, p. 11:20-13:23.)
Under these circumstances, it is patently obvious that officers might well be confronted with the issue of whether a teacher could give “consent” to a police search of a student. Simply put, the confluence of the compulsory education statutes and, more recently, the increased reliance upon police to maintain order on the public school campus, creates an extremely good chance of adversarial contacts between students and police while students are in the custody of school officials.2
The record evidence confirms that Coventry officers were frequently being drawn into situations involving the searches of students at school – but with a complete lack of training on the point of when a school official could “authorize” a search of a student. (Ex. P, 29:14-30-5; Ex. Q, 32:22-33:13.) Most interestingly, at the time of the incident, Sergeant Richard Sturdahl, had only recently left the School Resource Officer position after having made rank. (Ex. O, 11:20-13:23.) Even he was unable provide any coherent definition of a school official’s authority to search, and relied largely upon the antiquated in loco parentis concept. (Ex. O, 16:12-18:8.) Nevertheless, Coventry officers’ testimony indicated that their duties frequently involved searches of Coventry students at schools on numerous occasions. This duty was not
1 See Susan Black, Security and the SRO, Am. Sch.Board. J., June, 2009 at 30-31. See also Tom Pickerell, Schools and Police: A Sometimes Uneasy Alliance, reprinted in School Law in Review, 2005, National School Boards Association (2005). 2 Indeed, one of the cases cited by Defendants, that of Gray v. Bostic, 458 F.3d 1295 (11th Cir. 2006) describes a factual scenario which demonstrates how readily ordinary student misbehavior may well result in police intervention these days. That case describes a confrontation between a gym teacher and student about the student’s failure to participate in exercises. Formerly, in most circumstances such an incident would have ended in the principal’s office. In Gray, however, an overzealous school resource officer insisted on intervening in this disciplinary matter over the protests of the teacher, and handcuffed the student.
4

Case 1:08-cv-00123-S-DLM Document 34 Filed 07/16/09 Page 5 of 10 PageID #: 293
limited to the School Resource Officer, but encompassed a number of other officers. (Ex. P, 29:14-30:5; Ex. R, 25:7-20.)
It is also patently obvious that the failure to provide training on that legal point could lead to gross abrogations of students’ Fourth Amendment rights. As we pointed out in our earlier Memorandum, if we hold that a teacher has the ability to authorize a student search by the police, then we have eviscerated students’ Fourth Amendment protections against arbitrary searches by their teachers under New Jersey v. T.L.O., 469 U.S. 325, 105 S.Ct. 733 (1985). All that a teacher would need to do to evade the “reasonable suspicion” standard promulgated under T.L.O. is to call a police officer and give “permission” for that officer to search that student. Giving school officials the right to consent to student searches also works to remove student protection from unreasonable police searches once those students walked through the schoolhouse door. If a school official had the blanket authority to consent to a search, whether supported by any degree of reasonable suspicion or not, then all an overreaching police officer needs to do to evade the Fourth Amendment is to wait until the child was in school, and then persuade a friendly school official to give “permission” to search a student. For that reason, the rank-and-file officers were in clear need of instruction as to the limitations of school officials’ authority to consent to search.
There is also a clear causal connection between the lack of training and the constitutional violation visited upon the Plaintiffs. Had the officers received the most rudimentary of training regarding the constraints upon a teacher’s right to search their students, then the officers would easily have recognized that they were making a mistake of constitutional proportions when relying upon any purported “consent” from Coach Marchand. As we pointed out in our earlier Memorandum, it was obvious that Coach Marchand lacked the requisite “reasonable suspicion” that would justify a search of his students under T.L.O. Id. at 341-42. Without that “reasonable
5

Case 1:08-cv-00123-S-DLM Document 34 Filed 07/16/09 Page 6 of 10 PageID #: 294
suspicion,” he himself could not search the students without violating their Fourth Amendment rights. Id. After all, it goes without saying that Coach Marchand could not give permission to do that which he himself was expressly forbidden to do.
As we have seen above, the Coventry Police officers appear to have been left utterly without any idea of the express limitations on Coach Marchand’s authority pursuant to established law. Because of their apparent ignorance, it was almost inevitable that students whom the Coventry Police would come into contact with on a near-daily basis would be placed at risk for violation of their Fourth Amendment rights. Accordingly, the failure to provide training rose to the level of “deliberate indifference,” and caused the Plaintiffs’ injury.
B. THE PRESSURE FROM THE CROWD DID AFFECT THE VALIDITY OF THE SEARCH.
Defendants also challenge the proposition that the pressure from the crowd ought to be considered as a factor in determining whether Coach Marchand’s purported “consent” should be deemed truly voluntary and therefore valid. In support of their argument to the contrary, the Defendants point to a string of cases which they believe stand for the proposition that only coercion from the police officers can be considered. Not only do the Defendants misread the cases, but they also overlook the fact that the Coventry police themselves acted in such a fashion as to contribute to that coercive atmosphere.
The Defendants’ loudest lament is that the “coercion,” at least insofar as the crowd is concerned, did not originate from the Coventry Police, at least before they arrived. None of the cases to which Defendants cite positively state that the only relevant coercion is that which comes from a police officer. Instead, the legal standard requires that courts engage in “. . . an examination of the totality of the circumstances surrounding the relevant transaction between law-enforcement authorities and the consenting parties.” United States v. Jones, 523 F.3d 31, 37
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Case 1:08-cv-00123-S-DLM Document 34 Filed 07/16/09 Page 7 of 10 PageID #: 295
(2008), citing United States v. Pérez –Montañez, 202 F.3d 434, 438 (1st Cir. 2000). In other words, it has never been said that matters outside of a police officer’s conduct could not have some bearing upon the nature of the consent; one looks at all of the circumstances.
It is true that a particular mental condition or susceptibility will not in and of itself invalidate consent. That was the underlying theme of the cases relied upon by the Defendants. For example, in Colorado v. Connelly, 479 U.S. 157 (1986), the defendant had walked up to an off-duty officer who was still in uniform, and insisted upon discussing a murder that he had committed the year before. Id. at 159. It was only later that the police had any way of discovering that the defendant suffered from chronic schizophrenia, and that that mental condition might well have affected his ability to make decisions to waive his legal rights. Id. at 161. In that case, it was rightfully decided that the police officers had not acted in an unconstitutional fashion. The officers of course had had nothing to do with any mental condition that might affect the defendant’s capacity to decide to confess or remain silent, had no knowledge of that condition, and therefore could not be said to have coerced the defendant in any way. Id. at 165. See also United States v. Barbour, 70 F.3d 580, 585 (11th Cir. 1995)
Similarly, mere lack of intelligence has not been found to affect consent in most cases in the case of United States v. Jennings, 491 F.Supp.2d 1072 (M.D. Ala. 2007), the defendant had argued that his mental limitations had rendered him unable to voluntarily consent to a search and waive his Miranda rights. However, there had been no evidence that would indicate that the law enforcement official could have or should have known of any limitation, much less that that official had taken advantage of that condition. See id. at 1076. A similar argument was made and rejected in United States v. Rosario-Diaz, 202 F.3d 54, 69 (1st Cir. 2000), where the defendant argued that his low I.Q. obviated his consent (1st Cir. 2000).
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Case 1:08-cv-00123-S-DLM Document 34 Filed 07/16/09 Page 8 of 10 PageID #: 296
United States v. Amery, 2002 WL 31027514 (S.D.N.Y.) dealt with a subjective fear of police. The defendant was an Afghani national who had experienced police torture while in his home country, and had also experienced anti-Muslim sentiment in this country after the September 11, 2001 attacks. Id. at *1. Understandably, these experiences would tend to make one particularly fearful of refusing a request from a police officer. There was no evidence that the Amery officers knew of the defendant’s unique experiences and consequent susceptibility. Id. at *2. That lack of knowledge by the officers, and the lack of any attempt to exploit that knowledge, weighed against finding the search to be non-consensual.
In all of the above cases, the challenge to the consent failed because the mental condition or susceptibility was such that the officer did not or could not know of. However, none of the cases cited have foreclosed the possibility that some particular mental susceptibility cannot be weighed in the “totality of circumstances” analysis. All leave open the possibility that there could be some overreaching if the officer actively exploits a particular mental susceptibility to gain consent. See especially Amery at *2. There is sufficient evidence on the record to show that the officers both knew of and actively exploited Coach Marchand’s fear of that crowd – even going to the point of aggravating it by keeping him in that situation.
As was described at the depositions, at the time the Coventry Police arrived, the Central Falls bus was already blocked in by the mob and could not leave. The Coventry Police similarly blocked in the bus with their vehicles. (Ex. D, 31:15-32:6; Ex. H, 43:15-24.) Coach Marchand expressed fear of the crowd to the Coventry officers, and appealed to them for assistance in extricating him and his players from this dangerous situation, asking them: “. . . what am I going to do, what are they going to do to us.” (Ex. H, 27:23-24.) The Coventry Police took no effective action to dissipate the crowd. (Ex. H, 16:3-7, 27:5-9, 45:8-13.) Instead, they chose that
8

Case 1:08-cv-00123-S-DLM Document 34 Filed 07/16/09 Page 9 of 10 PageID #: 297
particular moment to inform Coach Marchand that a search was going to be the solution to his predicament. (Ex. H, 28:8-29:13; Ex. K, 44:1-6.)
Under these circumstances, a reasonable jury could find that the Coventry Police had taken advantage of Coach Marchand’s expressed fear of the crowd. The Coventry officers had essentially joined the crowd in its illegal detention of the team by blocking in the bus. They also specifically suggested to Coach Marchand that a search would be the only way in which he and his team could resolve the matter and thus regain their freedom to move on.
Furthermore, the Coventry Police’s actions in joining in the illegal detention of the team bus should work to obviate any consent by Coach Marchand. The detention of the team bus was plainly illegal. The crowd itself of course had no legal authority to prevent the team from leaving. The Coventry Police had no probable cause or even a reasonable suspicion that anybody on board that bus had engaged in any crime. The Coventry Police therefore had no valid reason to detain the team in any way; nevertheless, that is what they did when they blocked in the bus. It is well-understood that an illegal detention is an inherently coercive situation, and that any “consent” to a search given under those circumstances is therefore invalid. See State v. Casas, 900 A.2d 1120, 1134 (R.I. 2006), citing United States v. Cellitti, 387 F.3d 618, 622 (7th Cir. 2004).
Under the evidence on record, the actions of the Coventry Police, then, combined exploitation of Coach Marchand’s fear of the crowd and an illegal detention. For that reason, the Defendants should not be able to obtain summary judgment on the question of whether Coach Marchand’s consent was voluntary or coerced.
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Case 1:08-cv-00123-S-DLM Document 34 Filed 07/16/09 Page 10 of 10 PageID #: 298
IV. CONCLUSION For the above-referenced reasons, Defendants should not be permitted summary
judgment on the grounds stated in their Supplemental Memorandum. Plaintiffs, By their attorney,
/s/ Vicki J. Bejma Vicki J. Bejma #6498 The Law Offices of Stephen M. Robinson 155 South Main Street, Suite 402 Providence, RI 02903 (401) 331-5353 fax 331-7373 July 16, 2009 CERTIFICATION I hereby certify that the within document has been electronically filed with the Court on July 16, 2009, that it is available for viewing and downloading from the ECF system, and that the counsel of record listed below will receive notice via the ECF system: Marc DeSisto, Esq. marc@desistolaw.com /s/ Vicki J. Bejma
10

 
 Case: 09-2386 Document: 00116004296 Page: 1 Date Filed: 01/19/2010 Entry ID: 5409683
United States Court of Appeals
for the
First Circuit
09-2386
JUAN LOPERA; MARLON GIRALDO; MAURICIO ESPINAL; HECTOR CARDONA; RANDY GIRALDO; STEVEN GIRALDO;
WILLIAM RUIZ; PEDRO HERNANDEZ; L.E.A.-L., by and through his parents and next friends, Luis Ardila and Hziel Ardila; B.O., by and through his parent and next friend,
Alba Jaramillo; S.P., by and through his parent and next friend, Lilian Giraldo; J.S., by and through his parents and next friends,
Youlder Salazar and Martha Duran; M.R., by and through his parents and next friends, Milton Ricuarte, Sr. and Elizabeth Rivera,
Plaintiffs-Appellants, v.
TOWN OF COVENTRY, by and through its Treasurer, Warren West; KEVIN P. HARRIS, in his individual capacity and in his capacity as a police officer for the Town of Coventry; KEVIN KENNEDY, in his individual capacity and in his capacity as a police officer for the Town of Coventry; DAVID NELSON, in his individual capacity and in his capacity as a police officer for the Town of Coventry; STEPHEN A.
MICHAILIDES, in his individual capacity and in his capacity as a police officer for the Town of Coventry; BRIAN O'ROURKE,
individually and in his capacity as the former Chief of Police for the Town of Coventry; RONALD E. DASILVA, individually and in his
capacity as Chief of Police for the Town of Coventry, Defendants-Appellees.
_____________________________ On Appeal from the United States District Court of Rhode Island, Providence
BRIEF FOR PLAINTIFFS-APPELLANTS
VICKI J. BEJMA, ESQUIRE STEPHEN M. ROBINSON, ESQUIRE ROBINSON & CLAPHAM 155 South Main Street, Suite 402 Providence, Rhode Island 02903 (401) 331-6565
Attorneys for Plaintiffs-Appellants

Case: 09-2386 Document: 00116004296 Page: 2 Date Filed: 01/19/2010 Entry ID: 5409683

TABLE OF CONTENTS

Table of Contents

i

Table of Authorities

iii

I. INTRODUCTION

1

II. STATEMENT OF JURISDICTION

4

III. ISSUES PRESENTED FOR REVIEW

4

IV. STATEMENT OF THE CASE

5

V. STATEMENT OF FACTS

6

VI. SUMMARY OF ARGUMENT

16

VII. ARGUMENT

18

STANDARD OF REVIEW

18

A. THE DISTRICT COURT ERRONEOUSLY

RULED THAT THE APPELLEES WERE

ENTITLED TO QUALIFIED IMMUNITY

ON THE CLAIMS OF VIOLATION OF THE

FOURTH AMENDMENT, THE DUE PROCESS

CLAUSE, AND R.I.G.L. § 9-1-28.1.

19

1. The In Loco Parentis Doctrine at No Time

Allowed School Officials to Grant Consents to

Law Enforcement Searches on Behalf

of Their Students.

22

2. Pursuant to Clearly Established Fourth

Amendment Case Law at the Time of the

Search, Coach Marchand Lacked In Loco

Parentis Authority to With Respect to

Student Searches.

31

i

Case: 09-2386 Document: 00116004296 Page: 3 Date Filed: 01/19/2010 Entry ID: 5409683

3. The Clear State of the Law Rendered It

Unreasonable for the Coventry Police to

Rely Upon Any Alleged “Consent” By

Coach Marchand.

36

4. The District Court Erred When Finding

that Coach Marchand’s Purported

“Consent” to the Search Was Not Coerced.

42

B. THE DISTRICT COURT ERRED WHEN

GRANTING SUMMARY SUMMARY

JUDGMENT ON COUNT II (EQUAL PROTECTION).

45

C. THE APPELLEES WERE NOT ENTITLED

TO SUMMARY JUDGMENT ON COUNTS

V AND VI (RACIAL PROFILING AND

RACIAL/NATIONAL ORIGIN INTIMIDATION).

53

VIII. CONCLUSION

54

CERTIFICATE OF COMPLIANCE WITH RULE 32(a)

55

ADDENDUM

56

TABLE OF CONTENTS TO ADDENDUM

57

ii

Case: 09-2386 Document: 00116004296 Page: 4 Date Filed: 01/19/2010 Entry ID: 5409683

TABLE OF AUTHORITIES
United States Supreme Court Cases
Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)
Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls,
536 U.S. 822, 122 S.Ct. 2559, 153 L.Ed.2d 735(2002)
Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)
Hope v. Pelzer, 536 U.S. 730, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002)
Malley v. Briggs, 475 U.S. 335, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)
New Jersey v. T.L.O., 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985)
Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979)
Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)
Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)
Vernonia School District v. Acton, 515 U.S. 646, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995)

21 42
34, 35 20 20 21 passim 47 21 43 27, 34, 35

iii

Case: 09-2386 Document: 00116004296 Page: 5 Date Filed: 01/19/2010 Entry ID: 5409683

Village of Arlington Heights v. Metropolitan Housing Development Corp.,
429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977)
Washington v. Davis, 426 S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976)
Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996)
Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1896)
Federal Circuit Court of Appeals Cases
Bergeron v. Cabral, 560 F.3d 1 (2009)
Cookish v. Powell, 945 F.2d 441 (1st Cir. 1991)
Dailey v. City of Lawton, 425 F.2d 1037, (10th Cir. 1970)
Gruenke v. Seip, 225 F.3d 290 (3rd Cir. 2000)
Hatch v. Dept. for Children, Youth and their Families, 274 F.3d 12, (1st Cir. 2001)
Hayden v. Grayson, 134 F.3d 449 (1st Cir. 1998)
Judge v. City of Lowell, 160 F.3d 67 (1st Cir. 1998)

47, 48 46, 47 52 47
21 20 47 25, 34 20 46 46

iv

Case: 09-2386 Document: 00116004296 Page: 6 Date Filed: 01/19/2010 Entry ID: 5409683

Morelli v. Webster, 552 F.3d 12 (1st Cir. 2009)
Newman v. Massachusetts, 884 F.2d 19 (1st Cir. 1989)
Reese v. Jefferson Sch. Dist. No. 14J, 208 F.3d 736 (9th Cir. 2000)
Rossy v. Roche Products, Inc., 880 F.2d 621 (1st Cir. 1989)
Savard v. Rhode Island, 338 F.3d 23 (1st Cir. 2003)
Shade v. City of Farmington, 309 F.3d 1054 (8th Cir. 2002)
The Stop & Shop Supermarket Company v. Blue Cross & Blue Shield of Rhode Island,
373 F.3d 57 (1st Cir. 2004) Thomas v. Metropolitan Life Insurance Co.,
40 F.3d 505 (1st Cir. 1994) United States v. Jenson,
462 F.3d 399 (5th Cir. 2006) United States v. Jones,
523 F.3d 31 (1st Cir. 2008) United States v. Kampbell,
574 F.2d 962 (8th Cir. 1978) United States v. Pérez –Montañez,
202 F.3d 434 (1st Cir. 2000) United States v. Rosario-Diaz,
202 F.3d 54, 69 (1st Cir. 2000)
v

18, 19, 21 20 46 18 21 41
18 18 43 42, 43 43 43 43

Case: 09-2386 Document: 00116004296 Page: 7 Date Filed: 01/19/2010 Entry ID: 5409683

United States v. Travis, 62 F.3d 170 (6th Cir. 1995)
United States v. Yonkers Board of Education, 837 F.2d 1181(2nd Cir. 1987)
Webb v. McCullough, 828 2d 1151 (6th Cir. 1987)
Federal District Court Cases
Axtell v. LaPenna, 323 F.Supp. 1077 (D.C. Pa. 1971)
Picha v. Wielgos, 410 F.Supp. 1214 (N.D. Ill. 1976)
Rhodes v. Guarricino, 54 F.Supp.2d 186 (S.D.N.Y. 1999)
Rhode Island Supreme Court Cases
Ensey v. Culhane, 727 A.2d 687 (R.I. 1999)
Pontbriand v. Sundlun, 699 A.2d 856 (R.I. 1997)
Other State Court Cases
D.O.F. v. Lewisburg Area School District Board of Directors, 868 A.2d 28 (Pa. Cmwlth. 2004)
Edson v. Barre Supervisory Union No. 61, 182 Vt. 157, 933 A.2d 200 (2007)
Eastman v. Williams, 124 Vt. 445, 207 A.2d 146 (1965)

52 50 34
24 39-41 34
20 20
24 24 24

vi

Case: 09-2386 Document: 00116004296 Page: 8 Date Filed: 01/19/2010 Entry ID: 5409683

F.P. v. State, 528 So.2d 1253 (Fla. App. 1 Dist. 1988)
Geibe v. Geibe, 571 N.W.2d 774 (Minn.App. 1997)
Guerrieri v. Tyson, 147 Pa. Super. 239, 24 A.2d 468 (1942)
Hailey v. Brooks, 191 S.W. 781 (Tex.Civ. App.1916)
M.J. v. State, 399 So.2d 996 (Fla.App. 1981)
O’Rourke v. Walker, 102 Conn. 130, 128 A. 25 (1925)
People v. Jackson, 319 N.Y.S.2d 731 (1971)
Phillips v. Johns, 12 Tenn.App. 354, 1930 WL 1707
Smith v. West Virginia State Board of Education, 170 W.Va. 593, 295 S.E.2d 680, (1982)
State v. Sherman, 266 S.W.3d. 395 (Tenn. 2008)
State v. Tywane H., 123 N.M. 42, 933 P.2d 251 (N.M. App. 1997)
In the Interest of Thomas B.D., 326 S.C. 614, 486 S.E.2d 498 (S.C. App. 1997)
Volunteer State Life Insurance v. Pioneer Bank, 46 Tenn. App. 244, 327 S.W.2d 59 (1959)

41 23 25 25 41 24-25 24 25, 26, 28 24 23 41 41 23

vii

Case: 09-2386 Document: 00116004296 Page: 9 Date Filed: 01/19/2010 Entry ID: 5409683

Waters v. United States, 311 A.2d 835 (D.C. App. 1973)
United States Constitution United States Constitution, Fourth Amendment
United States Constitution, Fourteenth Amendment United States Code
28 U.S.C. § 1291 28 U. S. C. § 1331 28 U. S. C. § 1343 42 U.S.C. § 1983 State Statutes Rhode Island Gen. Laws § 9-1-28.1 Rhode Island Gen. Laws § 9-1-35 Rhode Island Gen. Laws § 16-12-3 Rhode Island Gen. Laws § 16-21.5-3 Rhode Island Gen. Laws § 31-21.2-1 et seq. Rhode Island Gen. Laws § 31-21.2-3. Rhode Island Public Law 2005, ch. 409, § 1

41
passim 2, 4, 16, 19, 52
4 4 4 2, 5, 19, 45
2, 4, 5, 6, 16, 19 2, 3, 5, 6, 17 27 29-30
2, 3, 5, 6, 17 53-54 29, 30

viii

Case: 09-2386 Document: 00116004296 Page: 10 Date Filed: 01/19/2010 Entry ID: 5409683

Other Authorities
W. Blackstone, Commentaries (1770)
Susan Black, Security and the SRO, American School Board Journal, June 2009, at 30
Stephen R. Goldstein, The Scope and Sources of School Board Authority to Regulate Student Conduct and Status: A Non-Constitutional Analysis,
177 U.Pa.L.Rev. 373 (January 1966)
Richard Jenkins, An Historical Approach to Search and Seizure in Public Education,
30 W.St.U.L.Rev. 105, 114 (Spring 2003)
James A. Rapp, Education Law (2002)

24 39
23-24 24 25

ix

Case: 09-2386 Document: 00116004296 Page: 11 Date Filed: 01/19/2010 Entry ID: 5409683
I. INTRODUCTION This matter comes before this Honorable Court on appeal of a District Court
ruling granting Appellees’ Motion for Summary Judgment on all counts contained in Appellants’ Amended Complaint. The instant matter arose out of an incident taking place on or about September 28, 2006. The Appellants, who are Hispanic, were members of the Central Falls High School Men’s Soccer Team. The team had travelled by bus to an “away” game in Coventry, a predominately white community. Their Coach, Robert Marchand, accompanied them to the game. After the game, as the team was boarding the bus, the Coventry players accused the Central Falls players of having stolen iPods and cellular telephones from the Coventry locker room. An angry mob surrounded the Central Falls team bus, shouting racial epithets and demanding a search of the players.
The Coventry Police swarmed onto the scene in four cruisers, lights flashing and sirens blaring. The Coventry Police quickly learned that there was no cause to suspect the Central Falls players. Nevertheless, the Coventry Police singled out the Central Falls players for the very search that the mob demanded. The students were ordered off the bus, and forced to line up against the bus and face the mob. This search lasted for an hour, and was conducted a mere six to ten feet of a mob that continued to shout racial slurs.
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The Central Falls players brought an action against the Town of Coventry and its police officers before the District Court for the District of Rhode Island. Counts I, II, and III were actions brought under 42 U.S.C. § 1983, alleging deprivation of the Plaintiffs’ rights to due process, equal protection, and freedom from unreasonable search and seizure. The Plaintiffs also brought state law claims. Count IV alleged an invasion of privacy pursuant to R.I.G.L. § 9-1-28.1. Count V alleged a violation of Rhode Island’s relatively new Racial Profiling Prevention Act of 2004, R.I.G.L. § 31-21.2-1 et seq. Finally, Count VI alleged a violation of R.I.G.L. § 9-1-35, Racial/National Origin Intimidation.
The District Court granted summary judgment to the Coventry defendants on all counts. The District Court found that the officers were entitled to qualified immunity with respect to the claims for the violations of the Central Falls’ players rights under the Fourth Amendment, and also under R.I.G.L. § 9-1-28.1. As its basis, the District Court ruled that Coach Marchand had given an uncoerced consent to the search. The District Court also ruled that the case law was not sufficiently clear as to whether Coach Marchand, a school official, lacked in loco parentis authority over the players so as to authorize him to consent to the search. Therefore, the District Court ruled that the Coventry Police could reasonably have relied upon Coach Marchand’s “consent” to the search. The District Court also found that there was insufficient evidence on the record to support an inference of
2

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racial discrimination on behalf of the officers, and thus dismissed the claims for violation of the Equal Protection Clause, as well as R.I.G.L. § 31-21.2-1 and R.I.G.L. § 9-1-35. The District Court made a similar ruling on the claims for municipal and supervisory liability.
The Appellants take the position that except for the rulings on municipal and supervisory liability, the District Court’s grant of summary judgment was in error. The case law is exquisitely clear: Coach Marchand’s in loco parentis authority never extended to consent to police searches at any point. In particular, Coach Marchand’s in loco parentis authority, at least with respect to random searches aimed at uncovering suspected wrongdoing, was clearly abrogated by New Jersey v. T.L.O., 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985). Accordingly, the Coventry officers should not have been granted qualified immunity. In addition, the District Court overlooked substantial evidence demonstrating that the Coach Marchand’s “consent” was produced by duress. Additionally, the District Court overlooked substantial evidence demonstrating that the Coventry officers’ actions were based at least in part on racial animus. For these reasons, summary judgment should not have been granted, and the Appellants should have been permitted to proceed to trial and finally vindicate their Constitutional rights.
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II. STATEMENT OF JURISDICTION The jurisdiction of the District Court over the complaint was conferred by 28
U. S. C. § 1331, its federal question jurisdiction. The court was also empowered to hear the civil rights claims enumerated herein pursuant to 28 U. S. C. § 1343. Additionally, the court was empowered to hear the state law claims presented pursuant to 28 U. S. C. § 1367.
The jurisdiction of the Court of Appeals over the final judgment of the District Court is invoked pursuant to the provisions of 28 U.S.C. § 1291. On September 11, 2009, the Decision and Order which is the subject of this appeal was entered against the Appellant, with the final judgment entered the same day. On October 5, 2009, Appellants timely filed their notice of appeal with the District Court. III. ISSUES PRESENTED FOR REVIEW
A. Whether the District Court erroneously found that the Coventry officers were entitled to qualified immunity with respect to the alleged violations of Appellants’ Fourth Amendment rights, Due Process Rights, and Rhode Island General Laws § 9-1-28.1 (invasion of privacy), in that the case law at the time of the September 28, 2006 search of the Central Falls High School Soccer Team clearly demonstrated that Coach Marchand lacked authority to “consent” to a police search for the members of the team?
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B. Whether the District Court erroneously granted summary judgment to the Coventry defendants, in that there was material evidence demonstrating that Coach Marchand’s alleged “consent” to the search of the Central Falls High School Soccer Team was produced by coercion?
C. Did the District Court erroneously grant summary judgment on claims for violations of Equal Protection and Rhode Island General Laws § 31-21.2-1 (prohibition against racial profiling) and § 9-1-35 (racial/national origin harassment and intimdation), in that there was material evidence supporting a reasonable inference that the actions of the Coventry Police officers were racially motivated? IV. STATEMENT OF THE CASE
This is an appeal from a judgment entered in favor of Appellees following an order granting summary judgment on all counts of the Appellants’ Amended Complaint. Appellants had brought action against the Town of Coventry and various of its police officers pursuant to 42 U.S.C. § 1983, alleging violations of their rights to unreasonable search and seizure pursuant to the Fourth Amendment of the United States Constitution, as well as their rights to due process and equal protection pursuant to the Fourteenth Amendment. Appellants had also alleged a violation of their rights to privacy pursuant to R.I.G.L. § 9-1-28.1, as well as their rights to be free from racial harassment and intimidation pursuant to R.I.G.L. § 9-
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1-35, and also their rights to be free from racial profiling from law enforcement officials pursuant to R.I.G.L. § 31-21.2-1.
After discovery, the Appellees filed a motion for summary judgment on all counts, which was granted in full on September 11, 2009. The District Court also filed a final judgment on the same day. Appellants take the position that the District Court’s ruling was in error, except as to the claims of municipal and supervisory liability. V. STATEMENT OF FACTS
On the afternoon of September 28, 2006, the Central Falls Soccer Team arrived at Coventry High School for a game. Among the players were Appellant Juan Lopera, a senior, (App. 20, 6:11.), as well as juniors, Appellants M.R. and B.O. (App. 36, 74:19-22; App. 38, 4:9.)
As the visiting team, the Central Falls players as a matter of course did not use the Coventry High School’s locker room facilities, but arrived to Coventry already in uniform. (App. 65, 21:15-20.) However, five or six of the Central Falls players needed to use the bathroom before the game began. (App. 20, 8:20-9:1; App. 27, 9:12-10:5.) The exterior door of the locker room was open. Leaving the locker room
1 In the Appendix, the relevant pages of deposition transcripts were reproduced as four deposition pages per Appendix page. The set of numbers immediately after “App.” thus refers to the Appendix page upon which the deposition pages can be found. The second series of numbers refers to the deposition page and line numbers on which the cited material can be found.
6

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door open during practices and games was a well-known standard practice at Coventry High School. (App. 65, p. 20:22-21:11.)
Coach Marchand brought the five or six players to the locker room because they did not know where the bathroom was located. Coach Marchand did not actually enter the locker room, but instead asked a security guard to go in with the players. (App. 27, 10:6-11:20.) Appellant Steven Giraldo, who was one of the players who used the locker room, similarly recalls seeing what he believed to be a security guard walking back and forth while they were using the locker room, keeping an eye on them. (App. 44-45, p. 8:2-9:19.)
The game began. There was a distinct racial divide between the teams. The Town of Coventry is predominately white community, and its school population reflected that. (App. 15, 22:1-5; App. 16.) The City of Central Falls is far more racially diverse. In October, 2006, white students were actually a minority; Hispanic students were the majority. (App. 17.) The Central Falls High School Soccer Team that went to Coventry that day was entirely composed of Spanish-speaking Hispanics, with the exception of one Portuguese player. (App. 20, 9:2-7.)
That racial difference came into play on the field. One player recalled that during the game, he and his teammates were told to “go back to where you were.” (App. 41, 36:2:14.) At various times during the game, the Central Falls players spoke to their teammates in Spanish, whether on the bench or on the playing field. The
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Coventry players took umbrage and ordered the Central Falls players to “speak English.” (App. 23, p. 28:1-10; App. 26, 6:13-7:21.) At one point, a Coventry spectator became displeased a maneuver made by Steven Giraldo, and called him a “spic.” (App. 44, p. 5:21-7:9.) The Central Falls players dealt with these actions by simply ignoring them and playing the game. (App. 26, 8:17-9:5)
With respect to the actual soccer game, at least, the Central Falls players were able to earn a draw. (App. 57, 17:11-17).) The contest with respect to their race, on the other hand, went into overtime. While the Central Falls players were walking back to the bus, Coach Marchand was approached by a group of about twenty youths. As Coach Marchand would later find out, these youths were members of the Coventry football team. (App. 57, 18:4-19:6-7.) These representatives of the Coventry football team accosted Coach Marchand and demanded to know if he were the “F’n coach of Central Falls.” When Coach Marchand replied he was, these Coventry students informed him: “Well, your punks stole all of our F’n shit and they got our ipods.” (App. 57, 18:5-10.)
By this time, the Central Falls players had boarded their bus. Coach Marchand boarded and told his Assistant Coach, Carl Africo, of the accusations. (App. 57, 20:12-15.) Marchand explained to the boys that the crowd believed that the Central Falls players who went into the locker room had taken the missing items. Marchand told his team that he knew that they had not taken these items. (App. 29, 29:10-23.)
8

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The boys who had used the locker room told Marchand that the security guard had followed them around for the entire period that they were in the locker room. (App. 27-28, 12:7-20:2-13.) Nevertheless, Coach Marchand and Coach Africo searched the boys, as well as the medicine kits and ball bags. (App. 58, 21:8-22:22.) At the end of that search, which lasted about 20-25 minutes, Coach Marchand was “completely satisfied” that the boys had done nothing. (App. 58, 23:4-8.)
When Coach Marchand was done, he found the Coventry Athletic Director outside the bus. He told the Athletic Director that the Central Falls boys did not have the items. (App. 58, 23:20-24:4.) By this time, a crowd of about 50-60 people had gathered outside the bus. (App. 58, 24:6-10.) Members of the crowd declared that they knew the Central Falls players had taken the items. The crowd also declared that the Central Falls players were “from the ghetto” and knew how to hide things and “lie good,” and could not be trusted. The crowd was even demanding a search of Coach Marchand. (App. 58-59, 24:15-25:25) Some of those making these remarks were adults. (App. 59, 25:1-8.) Steven Giraldo, who was sitting on the bus, heard members of the crowd making racial slurs, including one woman who called the team “spics.” (App. 46, 27:13-28:5.) Some in the crowd said that the Central Falls team was not leaving “. . . til we find the stuff . . .” (App. 59, 25:5-8.) At some point, one Coventry student even tried to board the bus to conduct his own search. (App. 46-47, 27:11-30:5.) (App. 34, 53:5-12.)
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While Coach Marchand was speaking to the Coventry Athletic Director, about three or four Coventry Police cruisers arrived with their lights and sirens activated. (App. 56, 15:14-16; App. 68, 38:7-39:2.) These officers were Kevin Harris, David Nelson, and Kevin Kennedy, and their supervisor, Sergeant Stephen Michaelides.2 The Coventry officers parked their cars in front of and in back of the bus, which foreclosed the possibility of the bus moving. (App. 61, 43:15-24.) In any case, by this time the crowd already had formed a semicircle that would have prevented the bus from moving. (App. 47, 31:16-32:6.)
Coach Marchand and the Coventry Athletic Director spoke to the police. The Coventry police officers admitted at deposition that Coach Marchand explained to them that he had already searched his players. (App. 59, 26:22-27:4; App. 71, 76:2225; App. 76, 46:3-5; App. 82, 43:25-44:2.) Coach Marchand, by this time very fearful of the crowd around the bus, appealed to the Coventry Police for their help: “. . . what am I going to do, what are they going to do to us.” (App. 59, 27:23:24.) At that point, the Coventry Police asked if they could search the boys. (App. 59, 28:8-28:13.) At deposition, Officer Harris testified that the second search by the police was necessary: “[t]o prove that, we don’t know if Coach Marchand is telling us the truth. We are investigating the situation.” (App. 71, 77:1-4.) Michaelides testified that he
2 In February of 2008, Michaelides was promoted to Lieutenant. (App. 80, 18:616.)
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Case: 09-2386 Document: 00116004296 Page: 21 Date Filed: 01/19/2010 Entry ID: 5409683
had told Coach Marchand that a police search of the Central Falls team would “. . . expedite the process and eliminate them all as suspects.” (App. 82, 44:1-6.)
By this time, it was not even fully clear whether a theft had even taken place, much less what exactly was believed to have been stolen. The Coventry officers never asked the Coventry students to make sure that they had not simply mislaid the items. (App. 75, 40:14-17; App. 89, 28:23-29:1.) No serious effort was ever made before the search to determine exactly what items were missing. All of the Coventry Police officers also admitted at deposition that not a single one of them obtained any description of the exact type of iPod alleged to be missing, its color, or whether it was in a case. (App. 69, 66:13-67:4; App. 75, p. 39:14-22; App. 78, 62:5-14; App. 82, 45:16-19; App. 89, 27:1-18.) No Coventry Police officer received any description of the make or model of the cell phone alleged to be missing, other than perhaps its being a “flip phone.” (App. 69, 67:5-9; App. 75, 39:14-22; App. 77-78, 61:19-62:4; App. 82, 45:20-23; App. 89, 27:1-18.) As matters progressed, students alleged that items other than iPods or cell phones were alleged to be missing, such as books or cash, but the Coventry officers never even obtained a final accounting of all missing items. (App. 70, 71:4-12; App. 75, 40:7-13; App. 82, 45:10-14.)
The Coventry Police officers justified their belief in the Central Falls players’ potential guilt on the basis that the Central Falls students had allegedly been in the locker room from where the items had disappeared. (App 69, 69:7-24; App. 75, p.
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40:1-6.) However, the Coventry officers admitted that they knew perfectly well that the locker room had been left open, and anybody could have accessed it -- Coventry as well as Central Falls students. (App. 69-70, 69:25-70:7; App., 76, 47:4-6; App. 83, 46:2-5.)
The Coventry officers’ view of the Coventry High School students, by contrast, was far more charitable. At deposition, the Coventry officers opined that all of the Coventry High School students on the scene were considered to be potential “victims,” even though not all of them had items missing. (App. 70-71, 73:7-74:5.) No Coventry student was searched at any time. (App. 70, 73:4-23; App. 76, 46:1324; App. 83, 46:2-10.) In fact, no Coventry student was even requested to submit to a search. (App. 71, 74:4-7.)
Coach Marchand correctly believed that the Coventry Police did not have the right to search the boys. (App. 61, 44:16-17.) He felt that the police simply wanted to: “. . . appease the masses over there that were crying for our heads.” (App. 59, 28:2-5.) Even with police presence, the crowd outside the bus remained hostile and threatening, repeatedly calling out remarks indicating that the Central Falls players were “good at hiding things, they’re sneaky you know it, search the coach.” (App. 56, 15:14-16:3.) The police took no action to stop the crowd. Coach Marchand, a veteran teacher, described the situation: “You know, it was one of those things where you tell the class okay you cut it out and you don’t really do anything and then two seconds
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later they’re talking again, you know.” (App. 56, 16:3-7; App. 59, 27:5-9; App. 62, 45:8-13.) Coach Marchand’s bus was by now blocked in by both the police and the crowd. Coach Marchand fully appreciated the potential for violence that could result with the large crowd. (App. 56, 13:16-22.) As Coach Marchand testified, he felt that he had no other choice but to permit the police search. (App. 61, 16:24.)
Marchand returned to the bus and told the Central Falls team that the crowd was not going to let them go until the police searched them. (App. 48, 36:1-8.) The Coventry Police ordered the students to leave the bus with all of their belongings, to line up, put their bags in between their legs and wait for further instructions. (App. 30, 40:17-22, App. 59, 28:15-23.) As ordered, the boys lined up with their backs to the bus. The crowd was about six to ten feet away. (App. 21, 21:9-24; App. 50, 42:610.) After the boys lined up, a Coventry police officer announced that they were there because there were things missing from the locker room. The officer warned the boys that if they had the items, they were to step forward or they would be arrested “right now and not be able to go home tonight.” The officer then announced that they would be doing a search. (App. 39, 27:21-28:6.)
The police proceeded down the line to make their searches, with the crowd still looking on. In some cases, students were searched twice, by different officers. (App. 34-35, 56:8-57:14.) Marchand recalled witnessing students’ bags placed on the hoods of the officers’ cars, and the police searching them. (App. 60, 29:8-23.) When a cell
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phone or iPod was found in possession of any Central Falls student, that student was required to prove that that item belonged to him. In some cases, this was accomplished by the students’ naming items that were stored on these devices, and allowing the police to search the pictures, numbers, and data stored thereon to check for that item. (App. 33, 49:13-50:9; App. 51, 48:2-17; App. 52, 50:23-51:5.) On other occasions, the Coventry officers would display the student’s electronic device to the crowd and ask if it were the one missing. (App. 23, 26:3-24, App. 39, 29:13-24; App. 60, 29:8-23.)
The searches were not limited to the students’ belongings of their persons. Appellant Lopera, for example, was asked if he had anything under his armpits. He said no. The police told him to pull up his shirt, and one officer touched him under the armpits. (App. 22, 24:9-11.) Lopera was told to take off his sweater, and to stretch his shirt and pants to remove that nothing was in them. (App. 22, 24:1925:24.) The Coventry police asked another student to empty his pockets. (App. 40, 32:2:4.) Giraldo was required to lift his shirt to prove that he had nothing in his waistband. (App. 52, 49:20-50:5.) Giraldo also witnessed another player next to him, Pedro Hernandez, get patted down. (App. 52, 50:12-15.) A Coventry officer told Appellant M.R. to spread his legs and raise his hands straight out. Beginning at M.R.’s ankles, he dragged his hands up his legs, ribs and arms. (App. 32, 47:1748:16.) The Coventry officer also ordered M.R. to lift his shirt. (App. 33, 49:2-3.)
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While the search was ongoing, the players continued to be harassed by the mob. M.R. heard the crowd saying that because the Central Falls players were Hispanic, that team should not be in Coventry or playing with Coventry. (App. 29, 31:9-17.) M.R., like his Coach, was fearful of being attacked by the crowd. (App. 31, 41:2223.) The crowd repeatedly photographed the students during the search. (App. 23, 27:1-3; App. 29, 29:1-8, 30:5-11; App. 49, 39:13-17; App. 62, 47:17-19.) The crowd continued to refer to the team as “Spics” and make other comments regarding the players’ race. (App. 33-34, 50:11-53:2; App. 50, 41:13-42:5.) During the search, one Coventry officer told M.R. that he thought the search was “stupid” because the coach had already checked, and in any case the security guard had been with the five boys who had used the locker room for the entire period. (App. 35, 57:18-58:14.) Another officer heard this remark and laughed. (App. 35, 58:20-23.)
This search lasted for about 45 minutes to an hour. (App. 53, 53:8-23; App. 60, 30:14-15.) Even if a boy had been searched, he was required to wait outside the bus for the police to finish with all of the boys. (App. 53, 53:13-16.) Finally, the Central Falls team was allowed to go home, with a Coventry police cruiser following them out of town. (App. 60, 31:17-22.)
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VI. SUMMARY OF ARGUMENT The District Court erred when granting summary judgment on the claims for
violations of the Fourth Amendment, the Due Process Clause, and Rhode Island’s invasion of privacy statute, R.I.G.L. § 9-1-28. The District Court’s ruling was based upon a qualified immunity defense. The District Court ruled that there was at least some basis in the existing case law for a police officer to reasonably believe that Coach Marchand, as school official, possessed in loco parentis authority over the team members, and that therefore a police officer could reasonably rely upon Coach Marchand’s “consent” to the search.
This ruling was erroneous on two bases. First, the District Court overlooked or disregarded material issues of fact supporting an inference that Coach Marchand’s consent was the product of coercion. Second, the law could not be more crystalline on the lack of Coach Marchand’s in loco parentis authority in cases of searches of students for investigation of wrongdoing. As school official, Coach Marchand did possess a limited in loco parentis authority. That authority only permitted him to make decisions involving the students’ education and discipline. At no point did that authority ever run to the extent of permitting school officials to make legal decisions of this nature on behalf of their students, that is, the decision to waive one’s right to withhold consent to a law enforcement search. Furthermore, there is ample authority, beginning with New Jersey v.
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T.L.O., 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985), that removed Coach Marchand’s in loco parentis authority with respect to Fourth Amendment issues, and reduced him to the level of state actor who could only demand searches of students to investigate wrongdoing where there was reasonable cause to suspect that student. To state that Coach Marchand could give consent to a suspicionless law enforcement search is wholly inconsistent with T.L.O. and its progeny.
The District Court similarly erred when granting summary judgment on the claims brought against the Coventry officers for violations of the right to Equal Protection under the Fourteenth Amendment, R.I.G.L. § 31-21.2-1 and R.I.G.L. § 9-1-35. All of these claims were based on the proposition that Appellants had been singled out for search on the basis of their race (Hispanic). The District Court failed to apply the appropriate legal standards. The District Court insisted that the officers themselves had to possess racial animus before an Equal Protection violation could be supported. This is a clear error of law. It is well-established that when a public official caters to the racial animus of his constituents rather than his own, there is still a violation of equal protection.
Furthermore, the District Court overlooked material evidence supporting a reasonable inference that the Coventry Police officers had acted to satisfy a racial animus, whether their own or their constituents. This evidence includes the disparate treatment between the Central Falls players and the Coventry students,
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the lack of a rational basis for that disparate treatment, and the manner in which the search was conducted. Instead, the District Court appears to have attempted an impermissible factual finding that the difference in treatment was not based on race. VII. ARGUMENT
STANDARD OF REVIEW Rulings on motions for summary judgment are reviewed on appeal de novo. The Stop & Shop Supermarket Company v. Blue Cross & Blue Shield of Rhode Island, 373 F.3d 57 (1st Cir. 2004). As in the lower court, this court determines whether the record, including the discovery materials, creates a triable issue, that is, whether a reasonable jury could return a verdict for the non-moving party, or whether the moving party is entitled to judgment as a matter of law. Thomas v. Metropolitan Life Ins. Co., 40 F.3d 505, 508 (1st Cir. 1994). The record is reviewed in the light most favorable to the non-moving party. Rossy v. Roche Products, Inc., 880 F.2d 621, 623 (1st Cir. 1989). All factual inferences must be drawn in favor of the non-moving party. See Rossy at 623. The standard is no different when analyzing a defense of qualified immunity granted under summary judgment. The Court accepts the version of the facts and most favorable to the plaintiff, and applies the qualified immunity standards to that version. Morelli v. Webster, 552 F.3d 12, 15 (1st Cir. 2009). Similarly, this Court
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draws inferences from those facts in the light most favorable to the plaintiff. Morelli, at 25.
A. THE DISTRICT COURT ERRONEOUSLY RULED THAT THE APPELLEES WERE ENTITLED TO QUALIFIED IMMUNITY ON THE CLAIMS OF VIOLATION OF THE FOURTH AMENDMENT, THE DUE PROCESS CLAUSE, AND R.I.G.L. § 9-1-28.1.
As the District Court noted, the Appellees readily conceded that the search of the Coventry players had been conducted in total absence of probable cause. Instead, Appellees’ bid for summary judgment was granted based upon a qualified immunity defense. The District Court found that Coach Marchand had given an uncoerced consent to the search. The District Court then concluded that there was sufficient ambiguity in the case law as to whether Coach Marchand possessed in loco parentis authority over the players so as to give him authority to consent to the search. The District Court then ruled that this ambiguity was so great that a reasonable police officer would have believed that the reliance on Coach Marchand’s “consent” passed Constitutional muster, and applied the qualified immunity defense to both the Fourth Amendment and Due Process claims, as well as those brought under Rhode Island’s invasion of privacy statute, R.I.G.L. § 9-128.1.
In actions brought under 42 U.S.C. § 1983, a defendant can indeed avoid liability under the qualified immunity defense unless he or she should have
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reasonably known his or her actions were violative of another’s Constitutional rights at the time. See Cookish v. Powell, 945 F.2d 441, 442 (1st Cir. 1991), citing Newman v. Massachusetts, 884 F.2d 19, 26 (1st Cir. 1989). Similarly, the Rhode Island Supreme Court, although never having the opportunity to definitively decide the question, has previously suggested that qualified immunity might apply to invasion of privacy claims against state actors. Ensey v. Culhane, 727 A.2d 687 (R.I. 1999); Pontbriand v. Sundlun, 699 A.2d 856 (R.I. 1997).
To defeat the qualified immunity defense, it must be shown that the state of the law, as it existed at the time of the search, would have put the public official on fair notice that his or her acts or omissions were unconstitutional. See Hope v. Pelzer, 536 U.S. 730, 740, 122 S.Ct. 2508, 2516, 153 L.Ed.2d 666 (2002). This test is entirely objective; the officer’s good faith belief in the Constitutionality of his actions or omissions is irrelevant. See Harlow v. Fitzgerald, 457 U.S. 800, 816-20, 102 S.Ct. 2727, 2737-2739, 73 L.Ed.2d 396 (1982). The court must instead examine the controlling case law in its own jurisdiction at that time of the action or omission complained of. Id.at 28. If none exists, the court must attempt to determine whether there is consensus elsewhere. Id. In that quest, the court should look to all available case law. Hatch v. Dept. for Children, Youth and their Families, 274 F.3d 12, 22-23 (1st Cir. 2001).
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It is not required that the plaintiff produce pre-existing case law expressly forbidding the precise conduct in question. See Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987); Bergeron v. Cabral, 560 F.3d 1 (2009), 11-12 If the authorities existing at the time are sufficiently particularized so that a reasonable official could extrapolate from them and conclude that his particular action or omission would violate the law, then the official cannot assert the qualified immunity defense. Savard v. Rhode Island, 338 F.3d 23, 28 (1st Cir. 2003), citing Saucier v. Katz, 533 U.S. 194, 201-02, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001).
The touchstone of the doctrine of qualified immunity is reasonableness. As this Court recently reiterated, the qualified immunity defense does not work to protect the plainly incompetent. Morelli, 552 F.3d at 18, citing Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). By extension, the qualified immunity defense would not shield officers based upon a patently absurd interpretation of the law.
The qualified immunity defense, if properly applied, should have failed on two grounds. First, the law at the time of the search clearly established that Coach Marchand lacked in loco parentis authority, at least as far as giving consent to law enforcement searches. Even as the in loco parentis doctrine was originally enunciated, that action would have been beyond his authority as educator. More
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recently, with T.L.O. , the Supreme Court specifically removed Coach Marchand’s in loco parentis status with respect to searches aimed at investigating wrongdoing. Under T.L.O., Coach Marchand, as school official, was a state actor, and could only search a student to investigate wrongdoing if there was a reasonable suspicion of that student. Id., 469 U.S. at 342. That reasonable suspicion was absent here. It is wholly inconsistent with T.L.O. to declare that Coach Marchand could authorize the search of the students when he himself was forbidden to conduct that search. Finally, even if we accepted the proposition that the officers could reasonably have considered Coach Marchand to possess the authority to give a valid consent, there was material evidence supporting the inference that Coach Marchand’s “consent” was coerced.
1. The In Loco Parentis Doctrine at No Time Allowed School Officials to Grant Consents to Law Enforcement Searches on Behalf of Their Students.
The District Court's decision relied upon a superficial interpretation of the in loco parentis doctrine with respect to school teachers. The District Court ruled that because the term in loco parentis has been "bandied about" in various decisions relating to school officials, the Coventry Police could reasonably have relied upon Coach Marchand's "consent" as a valid means to obtain a search. The Coventry Police, however, simply cannot be permitted to seize upon in loco parentis without a full analysis of how that concept applied to Coach Marchand.
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Coach Marchand may have had some in loco parentis authority over the boys, but only that which was necessary to ensure their good discipline and order while engaged in a school activity. Giving consent to this police search extended far beyond that authority because there was not sufficient relationship between the search and the students’ educational interests.
The term in loco parentis, of course, means "in place of the parents." Geibe v. Geibe, 571 N.W.2d 774, 778 (Minn.App. 1997). In its fullest sense of the word, the term in loco parentis implies one who has assumed the entire parental role, but has not formally adopted the child. In other words, the individual acting in loco parentis has accepted all of the responsibilities normally undertaken by parents, such as care, custody, support, and discipline, and, as de facto parent, is granted all of the duties and interests normally given to the parents. See, e.g., State v. Sherman, 266 S.W.3d. 395, 406 (Tenn. 2008) citing Volunteer State Life Ins. v. Pioneer Bank, 46 Tenn. App. 244, 327 S.W.2d 59 (1959).
The District Court correctly noted that the term in loco parentis has also been used in connection with the relationship between student and teacher. However, with respect to school officials, the term in loco parentis has never been construed so expansively as to imply the full authority of the parents. Stephen R. Goldstein, The Scope and Sources of School Board Authority to Regulate Student
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Conduct and Status: A Non-Constitutional Analysis, 177 U.Pa.L.Rev. 373, 378-79 (January 1966).
The limits on the in loco parentis authority of school officials have long roots, reaching as far back as Sir William Blackstone, who appears to have been the first legal authority to use the term with respect to schoolteachers. Richard Jenkins, An Historical Approach to Search and Seizure in Public Education, 30 W.St.U.L.Rev. 105, 114 (Spring 2003). Blackstone thus framed the doctrine:
The father may also delegate part of his parental authority, during his life, to the tutor or schoolmaster, of his child; who is then in loco parentis and has such a portion of the power of the parent committed to his charge, viz., that of restraint and correction, as may be necessary to answer the purposes for which he is employed. 1 W. Blackstone, Commentaries 453 (1770). (Emphasis added.) The in loco parentis doctrine, from its inception, accordingly granted school officials only the authority that was required for the school official to carry out his or her function as educator. See also Axtell v. LaPenna, 323 F.Supp. 1077, 1080 (D.C. Pa. 1971); Edson v. Barre Supervisory Union No. 61, 182 Vt. 157, 161, 933 A.2d 200, 204 (2007), citing Eastman v. Williams, 124 Vt. 445, 448, 207 A.2d 146, 148 (1965); D.O.F. v. Lewisburg Area Sch. Dist. Bd. of Dir's, 868 A.2d 28, 36 (Pa. Cmwlth. 2004); Smith v. West Virginia State Bd. of Educ., 170 W.Va. 593, 598, 295 S.E.2d 680, 685 (1982); People v. Jackson, 319 N.Y.S.2d 731, 733-734 (1971); O’Rourke
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v. Walker, 102 Conn. 130, 128 A. 25, 25 (1925); James A. Rapp, Education Law, § 8.01[2][b][ii] (2002).
The limited nature of the in loco parentis acts has long been understood to limit school official authority in a number of specific situations. For example, a school official lacks the inherent right to impose routine medical treatment or testing on a student, at least where there is no emergency. See Gruenke v. Seip, 225 F.3d 290, 301-02 (3rd Cir. 2000); Guerrieri v. Tyson, 147 Pa. Super. 239, 421, 24 A.2d 468, 469 (1942). Those decisions clearly go beyond the educational interests. For another example, it has long been understood that school officials have no authority to regulate student conduct outside the school, at least where that conduct has no impact on the school. Hailey v. Brooks, 191 S.W. 781, 783 (Tex.Civ. App.1916) (school official lacked authority to require students to participate in boycott of store outside of school hours).
Most strikingly, many years before it was determined that students possessed any Constitutional rights vis-a-vis their school teachers, the in loco parentis doctrine was applied so as to impose limits on school officials’ authority to search their students. The case of Phillips v. Johns, 12 Tenn.App. 354, 1930 WL 1707 involved a student bringing action against school officials after they searched her to determine if she had stolen money from her teacher. The Phillips Court used this occasion to comment on the limits of the in loco parentis doctrine:
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The weight of authority is that a teacher stands in loco parentis, but to a limited, extent only. "The delegation by the parent of part of his parental authority to a schoolmaster places the latter in loco parentis, and gives him the power to exercise such restraint and correction as may be necessary to answer the purposes for which he is employed." 1 Bl. Com., 453. "As a general rule a school-teacher, to a limited extent at least, stands in loco parentis to pupils under his charge, and may exercise such powers of control, restraint, and correction over them as may be reasonably necessary to enable him to properly perform his duties as teacher and accomplish the purposes of education." 35 Cyc., 1134. The question whether this search was made for the benefit of Mrs. Felknor, to recover her money, or whether it was made for the ethical training of the child, was for the jury. A teacher cannot claim justification on the ground that he or she is acting in loco parentis, if they search a child for the benefit of a third person. The relationship of teacher and pupil does not exist if the act is done for a third person. A teacher is given the powers of a parent over the child to the extent that is necessary to educate him or her and to preserve order necessary to the carrying on of the same; but if the teacher undertakes to recover money for a third person, this is not within the scope of the teacher's authority and employment, and the general law will apply to the case. Id. at *2-3. (Emphasis added.) The Phillips Court, finding that the search had
been for the benefit of the teacher, held that in loco parentis did not serve as a
defense. Id. at *3.
There is nothing in the record that even remotely suggests that Coach
Marchand ever assumed anything more than the limited in loco parentis authority
held by school officials, or that the boys’ parents ever made such a delegation.
Coach Marchand’s in loco parentis authority can only stem from his capacity as
school official. That authority did not extend to providing consent to student
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searches by law enforcement under this set of factual circumstances. As school official, Coach Marchand did have some initial interest in determining whether his players had stolen from their hosts, and imposing discipline if they had done so. Nobody would deny that the in loco parentis doctrine does involve “. . . . the power and indeed the duty to ‘inculcate the habits and manners of civility.’” Vernonia Sch. Dist. v. Acton, 515 U.S. 646, 115 S.Ct. 2386, 2391, 132 L.Ed.2d 564 (1995). Rhode Island even codified that duty in 1896 with the passage of R.I.G.L. § 16-12-3.3
However, there is more than sufficient evidence on the record demonstrating that the educational or tutelary interests of Coach Marchand in any search had come to an end well before the Coventy Police arrived -- and that the Coventry Police were well aware of that fact. As the record reflects, Coach Marchand had expressly told the Coventry Police that he had searched the students (rightfully or otherwise) and had satisfied himself that they had taken nothing. (App. 59, 26:2227:4; App. 71, 76:22-25; App. 76, 46:3-5; App. 82, 43:25-44:2.) Coach Marchand was also aware that the boys had been watched in the locker room, and could have taken nothing. (App. 27, 12:7; App. 28, 20:2-13.) The officers were similarly aware of this. (App. 35, 57:18-58:14.) Having assured himself that nothing had
3 “Every teacher shall aim to implant and cultivate in the minds of all children committed to his or her care the principles of morality and virtue.”
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been taken, he had thus fulfilled his disciplinary responsibilities over the boys, and had no further interests in the search.
The Coventry Police, on the other hand, acknowledged that the search was not for any educational purpose, or to aid Coach Marchand in the fulfillment of his duties. Instead, the investigation was solely for law enforcement purposes, that is, to investigate whether or not any of the boys had committed a crime. The Coventry Police were even investigating Coach Marchand’s behavior, to see whether Coach Marchand was covering up for his players. (App. 71, 77:2-4.) The purpose of the "consent" to search therefore was for the fulfilment of the Coventry Police's law enforcement interests rather than any tutelary or disciplinary interest in the student. As such, the "consent" was outside of Coach Marchand's limited in loco parentis authority. Phillips, at 2*-3.
The decision to consent to a police search in any case stretches far beyond schools and education. Decisions regarding whether to waive one’s right to not to subject to a police search implicate far broader matters than education or school discipline. These decisions can put into motion life-altering events with consequences extending far beyond an anticipated graduation date. By consenting to a search, one does not only agree to relinquish one’s interest in privacy in the thing or place being searched, but also accepts that the fruits of that search might be used as evidence against one, whether in a criminal or juvenile proceeding.
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Whether a student should waive one’s rights in a criminal law setting is therefore one that clearly goes far beyond an educator’s responsibilities.
Indeed, asking Coach Marchand or any other school teacher to assume the authority to waive their students’ legal rights is tantamount to placing school teachers in the role of legal counsel to their students. Few if any school teachers are qualified to accept that role. Furthermore, Coach Marchand would have had a conflict of interest preventing him from taking that role. Had the Coventry Police found a stolen item in a Central Falls student’s possession that Coach Marchand had missed, Coach Marchand’s posture with respect to that student would have immediately become adversarial. Coach Marchand, as school teacher, would have been duty-bound to refer the student to school administration for disciplinary action. That disciplinary action could have included suspension from school, that is, a deprivation of the student’s right to receive an education.
Additionally, only a short period of time before this search, Rhode Island had had the opportunity to impose limits upon the in loco parentis authorities of school officials with respect to student encounters with police. About one year prior to the subject incident, the General Assembly passed legislation governing police interrogations of students while attending school. P.L. 2005, ch. 409, § 1, codified at R.I.G.L. § 16-21.5-3. This legislation requires that before producing a secondary student to the police for questioning, the school officials must take
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affirmative steps to ensure that the student may first consult with his or her parents. This statute made it clear that the task of making legal decisions for the student in this situation – such as whether to be interviewed or not -- was not to be delegated to the school administrators in an in loco parentis capacity. Instead, the parents’ control over these situations was to be preserved. Given this statute, it is hardly consistent to declare that Rhode Island school officials have an in loco parentis authority to consent to a bodily search of the student by police.
In sum, then, contrary to the District Court’s belief, the law could not have been clearer: Coach Marchand’s in loco parentis authority did not extend beyond what was necessary to fulfil his job duties, including ensuring discipline. That understanding had been clear for many years. That understanding did not extend to waiving students’ legal rights on their behalf. In Rhode Island, that understanding had been reinforced with the passage of P.L. 2005, ch. 409, § 1 only a year before the incident. The evidence can certainly support a finding that the search by the Coventry Police was for their own law enforcement purposes rather than any tutelary purposes of Coach Marchand. On that basis, the Coventry Police could not have reasonably relied upon any supposed in loco parentis authority possessed by Coach Marchand to perform their law enforcement search.
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2. Pursuant to Clearly Established Fourth Amendment Case Law at the Time of the Search, Coach Marchand Lacked In Loco Parentis Authority to With Respect to Student Searches.
Even if our understanding of the limited nature of school officials’ in loco parentis authority would not be enough to clearly establish Coach Marchand’s inability to consent to search, the Coventry Police cannot surmount the clear line of decisional law stripping Coach Marchand of in loco parentis authority with respect to searches. When one recognizes that Coach Marchand’s authority to search was specifically limited by the Supreme Court’s decision in New Jersey v. T.L.O., 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985), it becomes immediately apparent that Coach Marchand could not have consented to this particular search. It is selfevident that one cannot give others greater authority than one possesses oneself. Because Coach Marchand was forbidden to search the boys under these circumstances, he could hardly have given the Coventry Police the authority to do so.
Even the District Court decision conceded that there was a “logical appeal” to our argument. Nevertheless, the District Court felt that because the term in loco parentis had been used in various cases, there was still some ambiguity about Coach Marchand’s authority that would allow the Coventry officers the benefit of qualified immunity. The District Court’s decision fails to give due weight to the fact that over twenty years prior to the search, the T.L.O. Court had unequivocally
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found that the in loco parentis doctrine simply could not be squared with the
Fourth Amendment of the Constitution. The T.L.O. Court set out to resolve any
confusion about the status of school officials, for purposes of Fourth Amendment.
From thereon in, as far as the Fourth Amendment was concerned, school officials
were to be considered state actors rather than substitute parents:
Notwithstanding the general applicability of the Fourth Amendment to the activities of civil authorities, a few courts have concluded that school officials are exempt from the dictates of the Fourth Amendment by virtue of the special nature of their authority over schoolchildren. See, e.g., R.C.M. v. State, 660 S.W.2d 552 (Tex. App. 1983). Teachers and school administrators, it is said, act in loco parentis in their dealings with students: their authority is that of the parent, not the State, and is therefore not subject to the limits of the Fourth Amendment. Ibid.
Such reasoning is in tension with contemporary reality and the teachers of this Court. We have held school officials subject to the commands of the First Amendment, see Tinker v. Des Moines Ind. Cmty. Sch. Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969), and the Due Process Clause of the Fourteenth Amendment, see Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975). If school authorities are state actors for purposes of the constitutional guarantees of freedom of expression and due process, it is difficult to understand why they should be deemed to be exercising parental rather than public authority when conducting searches of their students. More generally, the Court has recognized that “the concept of parental delegation” as a source of school authority is not entirely “consonant with compulsory education laws.” Ingraham v. Wright, 430 U.S. 651, 662, 97 S.Ct. 1402, 1407, 51 L.Ed.2d 711 (1977). Today’s public school officials do not merely exercise authority voluntarily conferred on them by individual parents; rather, they act in furtherance of publicly mandated educational and disciplinary policies. See, e.g., the opinion in State ex rel. T.L.O., 94 N.J., at 343, 463 A.2d, at 934, 940, describing the New Jersey statutes regulating school disciplinary policies and establishing the authority of school
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officials over their students. In carrying out searches and other disciplinary functions pursuant to such policies, school officials act as representatives of the State, not merely as surrogates for the parents, and they cannot claim the parents’ immunity from the strictures of the Fourth Amendment. Id., 469 U.S. at 336. The T.L.O. Court proceeded to enunciate the standards under which school officials were permitted to search students suspected of violation of law or school rules. Id., 469 U.S. at 341-42. Although the T.L.O. Court was loathe to impose a “probable cause” regime upon school officials, the Court recognized a need for restrictions on school officials’ ability to search students accused of wrongdoing. Under T.L.O., one must consider whether the search was justified at its inception, and whether the search was reasonably related in scope to the purposes of the search. Id., 469 U.S. at 341-42. A search by a school official is only justified at its inception if the school official has a reasonable belief that the search will uncover evidence of wrongdoing by the student. Id. The T.L.O. Court thus left no doubt on the question that school officials lacked their former in loco parentis authority with respect to searches aimed at uncovering student wrongdoing. Instead of considering this case law, the District Court instead found a supposed uncertainty in the case law regarding the extent of Coach Marchand’s in loco parentis authority. While it is true that the term in loco parentis appears in the case law, the District Court’s view that that use created an uncertainty as to
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Coach Marchand’s authority is simply not supported. The cases cited by the District Court dealing with school searches – Gruenke v. Seip, 225 F.3d 290, (3rd Cir. 2000); Webb v. McCullough, 828 F.2d 1151 (6th Cir. 1987); and Rhodes v. Guarricino, 54 F.Supp.2d 186 (S.D.N.Y. 1999) -- did not remove any limitations on Coach Marchand’s in loco parentis authority for purposes of Fourth Amendment analysis of a search aimed at uncovering student malfeasance. Far from retreating from the “reasonable suspicion” standard for school officials investigating student wrongdoing, these cases reinforced it. Webb, at 1154; Rhodes, at 192. They similarly did not leave open the possibility that police officers could get “permission” from a school official to perform an utterly suspicionless search.
Furthermore, neither the cases of Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls, 536 U.S. 822, 122 S.Ct. 2559, 153 L.Ed.2d 735 (2002) nor Vernonia School District v. Acton, 515 U.S. 646, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995) muddied the Constitutional waters as much as the District Court apparently believes. Both decisions did use the term in loco parentis when holding that school officials could require suspicionless, random drug testing as a condition of participation in athletics and extracurricular activities. These cases, however, were firmly confined to the class of “special needs” searches. Before such a “special need” is found, one must carefully
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consider the nature of the intrusion, and balance that against the governmental interest involved. Vernonia, at 654-661. In Earls and Vernonia, the evils that the testing was to avoid were dangers to student safety and disruption to general school discipline due to illegal drug use. Earls, 536 U.S. at 835; Vernonia, 515 U.S. at 662. Actions aimed at addressing those concerns were wholly within the educational mission. This was particularly true in Vernonia, where there was evidence that the drug culture at the school in question had spiraled to epidemic proportions and was demonstrably affecting school climate, as well as evidence student athletes were being endangered by playing under the influence of drugs. Id.
Moreover, neither Vernonia nor Earls applied to situations in which the search was aimed at investigating student wrongdoing for disciplinary or law enforcement purposes. When determining that the testing passed Fourth Amendment muster, both the Vernonia and Earls Courts counted it significant that the results were not used for law enforcement purposes, or even school disciplinary purposes. Earls at 833-34; Vernonia, at 658. The in loco parentis authority being exercised in Vernonia and Earls, then, remained firmly tied with legitimate, recognized educational purposes, those of maintaining student safety and general school order, rather than a law enforcement purpose
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Accordingly, the holding of T.L.O. remained undisturbed in cases involving investigation of student misconduct. With respect to the Fourth Amendment, Coach Marchand’s position was not in loco parentis. Coach Marchand instead possessed the status of a government actor, whose authority with respect to searches was wholly cabined by the “reasonable suspicion” standard.
3. The Clear State of the Law Rendered It Unreasonable for the Coventry Police to Rely Upon Any Alleged “Consent” By Coach Marchand.
We thus come to the major point upon which the qualified immunity defense ought to have failed under the Fourth Amendment standards. Because Coach Marchand plainly could not have conducted the search himself, it defies logic to declare that he could authorize the Coventry Police the permission to do the same. To declare otherwise potentially eviscerates the protections of the Fourth Amendment while students are at school.
Under T.L.O., Coach Marchand himself could not have demanded a search of his students under this factual situation because there was an utter lack of even reasonable suspicion against the Central Falls players. The lack of reasonable suspicion appears to be virtually undisputable in this factual record. From the beginning of this incident, Coach Marchand himself never had any suspicions of his team at all, whether reasonable or not. Before the police arrived, he expressly told his team that he did not believe the accusations of theft. (App. 29, 29:2-23.)
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Coach Marchand would later declare that by the time that the police had arrived, he was “completely satisfied” that the boys had done nothing wrong. (App. 58, 23:48.) Coach Marchand, lacking that reasonable suspicion, had no authority to search the players at any point.
The Coventry Police officers themselves were well aware of that lack of any reasonable basis to suspect the Central Falls players. At deposition, the Coventry officers admitted that the locker room was open and available to all, and virtually any person could have entered and taken the items -- including Coventry students. (App. 69-70, 69:25-70:7; App. 76, 47:4-6; App. 83, 46:2-5.) The Coventry Police were told that the students had already been searched by Coach Marchand. (App. 59, 26:22-27:4; App. 71, 77:22-25.) The Coventry police and Coach Marchand were also aware that the Central Falls players had been watched while they were in the locker room. (App. 35, 57:18-14.). One officer even declared the search “stupid” because Coach Marchand had done his search, and because the boys had been watched in the locker room. (App. 35, 57:18-14)
When one fully considers all of this evidence, it is clear that all of the participants were well aware that there was not even reasonable suspicion against the Central Falls players. The District Court ultimately declined to determine the question of whether Coventry officers could colorably rely upon Coach Marchand’s “consent” to this suspicionless search in absence of a reasonable
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suspicion. However, such a construction of the law is absurd on its face. It goes without saying that one cannot give another permission to do that which one is forbidden to do oneself. If Coach Marchand could not have conducted the search without reasonable suspicion, he cannot be reasonably considered in a position to give another person permission to do so without reasonable suspicion. On that basis alone, the Coventry officers could not colorably rely upon Coach Marchand’s “consent” when conducting their search, and qualified immunity should not have attached.
The District Court’s ruling has frankly disturbing implications for the future of students’ Fourth Amendment rights. By suggesting that the officers could have reasonably relied upon Coach Marchand’s “consent,” the District Court has contributed an “end run” around warrant requirements to every police officer’s playbook. If a police officer knows that he cannot obtain a warrant to search a juvenile, all that he needs to do is knock at the schoolhouse door, and obtain the “consent” of a school official to perform the search. The District Court’s ruling has suggested that the officer can reasonably rely upon that “consent,” and therefore be shielded from liability. Similarly, if a school official chafes at the restraints of T.L.O., all that teacher needs to do is to call a police officer and give "consent" for that officer to search that student.
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The District Court’s ruling is thus not only illogical, but strips students of any realistic expectation of Fourth Amendment rights while at school. This is particularly true given the recent expansion of police presence in the schools, in the persona of the “School Resource Officer.” The School Resource Officers are rapidly becoming ubiquitous in public schools across the country, as much a part of the school staff as the teachers. Susan Black, Security and the SRO, American School Board Journal, June 2009, at 30. Under these conditions, it is not difficult to fathom that collusive relationships between the schools and the police could easily develop, with both parties relying upon the “consents” of the other to circumvent any Fourth Amendment limitations on student searches.
The District Court’s decision also failed to acknowledge that even before T.L.O., at least one federal court had firmly rejected the proposition that law enforcement officers, in investigating a crime, could rely upon the consent of school officials to search a student. Picha v. Wielgos, 410 F.Supp. 1214, 1218 (N.D. Ill. 1976) involved an incident in which police had been summoned to a school to investigate whether a student possessed drugs. The police officers directed other school officials to search the female students. The Picha officers certainly could have argued that the school officials had given consent to the search. They had, after all, even gone to the extent of physically carrying it out for the police. Nevertheless, the Picha Court held that such a police-directed search
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could not pass Constitutional muster based on the in loco parentis authority of
school officials alone:
The court now considers the standard, under the facts presented at trial, to which police must adhere to protect the rights of a student under the Fourth Amendment. . . . As far as the police are concerned, such an investigation cannot come under the ambit of the state interest that dwells under the banner of ‘in loco parentis.’ Although the school may have an interest in the safety of its charges, either with regard to one student possessing drugs, or with regard to the possibility that that student would transfer possession of drugs to another student, all it can do in furtherance of that interest is to locate and perhaps confiscate the drugs. In the course of such a procedure, evidence may be acquired, as was the case in In re Boykin, supra, or as could have been the case in Potts v. Wright, 357 F.Supp. 215 (E.D.Pa. 1973), which may ultimately be considered to have been reasonably obtained and therefore usable in a criminal prosecution or in an adjudication of delinquency. However, the evidence here could not support a jury finding that the police were called merely in furtherance of this interest. Consequently, the substantial state interest in the provision of education and the maintenance of school discipline cannot be here said to temper the application of the Constitution to a search caused by police for evidence of crime. Moreover, whatever may be the consent to the discretion of the school officials deemed constructively made by the parent or student, it cannot vitiate the constitutional expectation of privacy which decrease the need for levels of suspicion and/or exigency in the conduct of a criminal investigation.”
Id. at 1221. (Emphasis added.) Thus, the Picha Court clearly held that outside
police officers were not permitted to take advantage of the student’s presence at
school and the school officials’ in loco parentis authority in order to gain a relaxed
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standard for searches initiated by law enforcement to satisfy their own agenda.4 This decision could easily be extrapolated to put Coventry officers on notice that reliance upon Coach Marchand’s “consent” would not pass Constitutional muster.
Other jurisdictions have echoed the Picha position regarding police in schools. Outside police officers who initiate searches have always been held to the same Fourth Amendment standards as any other police officer, both before and after T.L.O., See State v. Tywane H., 123 N.M. 42, 46, 933 P.2d 251, 255 (N.M. App. 1997); M.J. v. State, 399 So.2d 996, 998 (Fla.App. 1981); Waters v. United States, 311 A.2d 835, 837-38 (D.C. App. 1973); In the Interest of Thomas B.D., 326 S.C. 614, 629, 486 S.E.2d 498, 505-06 (S.C. App. 1997); F.P. v. State, 528 So.2d 1253, 1254 (Fla. App. 1 Dist. 1988). This is so even when the school officials participate in the search. M.J. , at 998. Under these cases, the fact that school officials had in loco parentis authority over the boys was ultimately irrelevant to any assessment of the legality of the Coventry officers’ search.
The District Court’s holding as it stands thus permits a public official to hide behind qualified immunity even if the interpretation of case law being relied upon is, as here, wholly absurd and against the great weight of that case law. In this 4 Admittedly, some courts do recognize a distinction with respect to those officers assigned to schools, commonly referred to as “school resource officers.” The purpose of these school resource officers is educational, that is, to maintain order at school. Even these school resource officers, however, are held to a “reasonable suspicion” standard. See Shade v. City of Farmington, 309 F.3d 1054, 1060-61 (8th Cir. 2002).
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case, permitting the officers to hide behind qualified immunity in this situation is actively dangerous to the Fourth Amendment rights of all students. For that reason, the District Court’s decision must be overturned.
4. The District Court Erred When Finding that Coach Marchand’s Purported “Consent” to the Search Was Not Coerced.
The District Court also erred by making a factual finding that Coach Marchand’s “consent” had been voluntary, rather than the product of coercion. In the summary judgment setting, the District Court is not to make factual determinations, but is to determine whether or not there is any evidence upon which a reasonable jury could rely to support the legal claim. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). Contrary to the District Court’s opinion, the evidence on record here more than supports an inference that Coach Marchand gave his “consent” under coercive circumstances that were in a large part created or allowed to continue by the Coventry Police.
In order for a consent to a search to be valid, the government must show that that consent was freely and voluntarily given, rather than the product of coercion. United States v. Jones, 523 F.3d 31, 37 (1st Cir. 2008). The question of whether the consent was freely and voluntarily given is one of fact, and requires “. . . an examination of the totality of the circumstances surrounding the relevant
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transaction between law-enforcement authorities and the consenting parties.” Id., citing United States v. Pérez-Montañez, 202 F.3d 434, 438 (1st Cir. 2000). Coercion may be express or implied. Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 2048, 36 L.Ed.2d 854 (1973). Furthermore, consent may not be the product of an illegal detention. United States v. Jenson, 462 F.3d 399, 407 (5th Cir. 2006). Similarly, the threat of violence or deception may invalidate consent to a search. See United States v. Rosario-Diaz, 202 F.3d 54, 69 (1st Cir. 2000); United States v. Kampbell, 574 F.2d 962, 963 (8th Cir. 1978)
The District Court based its decision on the lack of coercion on two discrete pieces of evidence in the record. That evidence was Coach Marchand’s deposition testimony, indicating that when he had considered whether to accede to the Coventry officer’s demand for a search, he considered the safety of his team, and the fact that he knew that the team was innocent, but decide to take the “high road.” The District Court takes this isolated piece of testimony out of context and ignores other evidence on the record supports a conclusion that the Coventry Police had indeed coerced the consent of Coach Marchand.
First, the consent was obtained in a constructively custodial environment. At the time the Coventry Police arrived, the Central Falls bus was already blocked in by the mob and could not leave. The Coventry Police blocked in the bus with their vehicles, thus contributing to a detention. (App. 47, p. 31:15-32:6; App. 61,
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43:15-24.) That detention, of course, was wholly unwarranted, since there was no probable cause, or even reasonable suspicion. Worse, once they got out of their cruisers, the Coventry Police at no point took any effective action to dissipate the crowd. (App. 56, 16:3-7; App. 59, 27:5-9; App. 62, 45:8-13.)
The Coventry Police were fully aware that the mob’s actions and the detention were causing Coach Marchand to become fearful for his players’ safety. At the time of the consent, Coach Marchand had appealed to the Coventry Police for assistance in extricating him and his players from this dangerous situation, asking them: “. . . what am I going to do, what are they going to do to us.” (App. 59, 27:23-24.) (Emphases added.) Instead of controlling the crowd and allowing the players to exit in an orderly fashion, the Coventry Police determined that the search would be the manner in which this situation would be resolved.
Furthermore, there was an element of deception in the Coventry Police’s actions. The Coventry Police portrayed their actions as helpful to Coach Marchand in his predicament, in at least appeasing the crowd and defusing a hostile situation. (App. 59, 28:2-5.) However, as the officers later admitted, that was not their true intention. They had instead decided to determine if Coach Marchand was telling the truth about the players – and seek evidence against the boys to be used against them. (App. 71, 77:1-4.)
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Under these circumstances, a jury could find that the “consent” was the product of duress. There are few situations more coercive than being held prisoner by an angry mob, while the police tacitly permit that imprisonment to continue – and even contribute to it. Coach Marchand and his players had the same right to police protection from wrongful imprisonment as anybody else on the campus. That protection was withheld. Instead, it was implied that protection could only be had if there was a consent to a search. A reasonable jury could accordingly find that any “consent” given by Coach Marchand was hopelessly tainted by coercion. For this reason, too, the District Court’s grant of summary judgment should be overturned.
B. THE DISTRICT COURT ERRED WHEN GRANTING SUMMARY SUMMARY JUDGMENT ON COUNT II (EQUAL PROTECTION).
The District Court also erred in granting Appellees summary judgment on Count II of the Amended Complaint. Count II had made a § 1983 claim for violation of Appellant’s right to equal protection. The District Court found that summary judgment was in order because the hearing judge believed that the Appellants had “. . . failed to produce evidence sufficient to permit a reasonable jury to find that the officers’ conduct was racially motivated.” The District Court overlooked key evidence demonstrating that the Coventry officer’s conduct was
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animated by racial hatred. Furthermore, the District Court also appears to have again engaged in impermissible fact-finding.
The District Court at least correctly recited some of the elements of an Equal Protection Claim. The Appellants were required to show that the Coventry police officers acted in an intentionally discriminatory manner. Reese v. Jefferson Sch. Dist. No. 14J, 208 F.3d 736, 740 (9th Cir. 2000). An individual acts in with discriminatory intent where he or she acted at least in part due to the adverse effect on the disfavored group. Hayden v. Grayson, 134 F.3d 449, 453 (1st Cir. 1998).
Where the District Court apparently failed was in applying the correct legal standards for evaluating evidence produced in support of an Equal Protection claim. The District Court once again at least correctly recited some of the law regarding the nature of the evidence that may be used to support a claim of racial animus. As the District Court acknowledged, in this day and age, an individual with racial animus will seldom be as obtuse as to directly express that animus. Therefore, intent to discriminate may be shown by circumstantial evidence. Judge v. City of Lowell, 160 F.3d 67, 77 (1st Cir. 1998). As our Supreme Court stated in Washington v. Davis, 426 U.S. 229, 242, 96 S.Ct. 2040, 2049, 48 L.Ed.2d 597 (1976):
Necessarily, an invidious discriminatory purpose may often be inferred from the totality of the relevant facts, including the fact, if it is true, that the law bears more heavily on one race than another. It is also not infrequently true that the discriminatory impact – in the jury
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cases, for example, the total of seriously disproportionate exclusion of Negroes from jury venires – may for all practical purposes demonstrate unconstitutionality because in various circumstances the discrimination is very difficult to explain on non-racial grounds. As the Supreme Court further illuminated in Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977), there may be instances in which the nature of the disparity is so glaring, and the reasons supplied for the decision represents such a radical departure from normal standards, that racial discrimination can be inferred. Id. at 266. Similarly, where the reason supplied for the disparity is patently false or otherwise wholly undeserving of credence, racial discrimination can be inferred. See Yick Wo v. Hopkins, 118 U.S. 356, 373-74, 6 S.Ct. 1064, 1073, 30 L.Ed. 220 (1886); Dailey v. City of Lawton, 425 F.2d 1037, 1039-40 (10th Cir. 1970). See also Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 274-45, 99 S.Ct. 2282, 2294, 60 L.Ed.2d 870 (1979) (“If the impact of this statute could not be plausibly explained on a neutral ground, impact itself would signal that the real classification made by the law was in fact not neutral.”) With these standards in mind, we turn to the evidentiary record. A gross disparity in treatment between the white Coventry students and the Hispanic Central Falls students can certainly serve as evidence of discriminatory intent by the Coventry officers themselves. Washington, at 242. The differences were indeed glaring. The Coventry police singled out the Hispanic Central Falls players
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for a search. Their peers from predominately-white Coventry were not even asked to agree to a search. (App. 70-71, 73:4-74: 7.) At least one of the officers even insisted on characterizing all of the Coventry players as “victims,” whether they had claimed to be missing any item or not. (App. 70-71; 73:22-74:3.) The District Court’s opinion does not seem to appreciate the full extent of the differences in treatment and officer attitude towards the two groups of students.
Furthermore, the District Court seems to have failed to appreciate that there was strong evidence supporting the position that the differential treatment was utterly lacking in any rational, believable basis. Normally, when deciding to do a search, an officer would consider whether there was any particular reason to suspect an individual. A departure from normal standards can be counted as evidence of discriminatory intent by the Coventry officers themselves. Arlington, at 267. The District Court seems to have been very dismissive of the evidence that there was no rational basis to suspect the Central Falls players any more than the Coventry students.
That evidence is indeed overwhelming. The Coventry Police, when confronted at deposition, admitted that virtually anybody in that crowd, including the Coventry students themselves, could have had access to the locker room and could have stolen the items. (App. 69-70, 69:25-70:7; App. 76, 47:4-6; App. 83, 46:2-5.) The District Court actually appears to have overlooked evidence on the
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record showing that the Coventry Police were fully aware that there was even less reason to suspect the Central Falls players than the others. The District Court analysis does not even reference the fact that Coach Marchand had told the Coventry police that he had already searched the Central Falls boys. (App. 59, 26:22-27:4; App. 71, 77:22-25.) Even more tellingly, the analysis does not even include the evidence that during the search, one of the Coventry Police told a Central Falls player that the search was “stupid,” because the Central Falls players who had been in the locker room had been watched by a security guard. (App. 35, 57:18-14.) In other words, the police knew perfectly well there was no legitimate reason to single out the Hispanic Central Falls players.
The District Court’s opinion also ignored the fact the Coventry officers’ own explanation for that differential treatment is patently unbelievable. As noted above, the Coventry officers explained the differential in treatment by declaring that all of the Coventry students were “victims.” (App. 70, 73:7-74:5.) This claim is absurd because not every Coventry student was claiming to be missing items. The Coventry officers would later admit that the Coventry students were just as much in a position to have taken the items as the Central Falls students. A reasonable jury could find that these stated “reasons” for treating the Central Falls students differently are wholly unworthy of credence, and, on that basis, find that the real reason was indeed their race.
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The District Court, in addition to overlooking this material evidence supporting racial animus on the part of the police themselves, also appears to have been led astray on the question of whether the individual officers themselves must have harbored racial animus in their own hearts before an Equal Protection violation could be found. As the District Court ruled: “While the evidence may reflect the officers’ poor judgment in giving into an unruly mob and humiliating the boys, it does not even approach discrimination.” The District Court appears to have overlooked the fact that the Equal Protection Clause is violated not only when the governmental actor acts upon his own discriminatory intent, but works so as to effectuate the known discriminatory intention of others. United States v. Yonkers Bd. of Educ., 837 F.2d 1181, 1226 (2nd Cir. 1987).
Even if the Coventry police harbored no racial hatred towards Hispanics in their own hearts, there is certainly evidence that they put their police powers at the disposal of a crowd that had a great deal of animus towards the Plaintiffs based upon their race. The District Court acknowledges that the Coventry officers’ actions could be construed as a pandering to this crowd. Furthermore, the manner in which the search was secured and executed could support a conclusion that the Coventry police had acted for the perverse benefit of a racist mob. The search was conducted in the most publicly humiliating and dangerous fashion possible.
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It would have been entirely simple and reasonable for the Coventry police to order the crowd to clear off, or at least find a more secluded area to conduct the search. Instead, the boys were marched off their bus, and arrayed before the crowd, with their backs up to the bus. (App. 21, 21:9-24; App. 50, 42:6-10.) The mob was permitted to stay only about six to ten feet away. (App. 21, 21:9-24; App. 50, 42:6-10.) The mob continued to shout racist slurs and engage in racial harassment of the boys, with impunity. (App. 33-34, 50:11-53:2; App. 50, 41:1342-5.) The Coventry police forced the Central Falls players were forced to endure about forty-five minutes to an hour in this vulnerable position. (App. 53, 53:8-23; App. 60, 30:14-15.) When an electronic device was found in a Central Falls player’s possession, that item was flashed about to that crowd, and the player was required to defend his right to possession of that item in front of that crowd. (App. 23, 26:3-24; App. 39, 29:13-24; App. 60, 29:8-23.) Under these circumstances, a reasonable jury could infer that the search was a piece of vicious street theatre produced by the Coventry Police for the purpose of fulfilling the fondest racist fantasies of their constituency.
Instead of considering this evidence in the balance, the District Court, appears to have focused above all else on Coach Marchand’s “consent” to the search and his offhand remarks about his players’ having become the “prime suspects.” To the District Court, the “prime suspect” remark and the “consent”
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were enough to justify any differential treatment meted out to the Central Falls players. This focus on these two pieces of evidence, above all others, represents the very type of weighing of evidence that is forbidden in the summary judgment setting.
In any case, a reasonable jury could find that reliance on the “prime suspect” remark as grounds for the search was unjustifiable. There is certainly enough evidence to show that it was taken wholly out of context. Rather than Coach Marchand’s own assessment of his team’s potential culpability, it was better read as a reference to the crowd opinion. In any case, Coach Marchand’s remark should not have been taken in isolation, as it was accompanied by other information clearly exculpating his players.
The District Court’s also erred in its focus on the alleged “consent” of Coach Marchand as a factor weighing against the racial animus of the officers. Even if we conceded that the Coach had the ability to give a valid consent, that consent is ultimately irrelevant to the question of whether or not the Coventry officers possessed racial animus. Even a consensual search, wholly permissible under the Fourth Amendment, may be the subject of an Equal Protection claim, if it were initiated by the officer based solely upon the individual’s race. United States v. Travis, 62 F.3d 170, 173-74 (6th Cir. 1995); also Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996).
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The totality of the evidence, then, would be sufficient for a reasonable jury
to find that the Coventry officers had acted upon racial bias. For that reason,
summary judgment should not have been granted.
C. THE APPELLANTS WERE NOT ENTITLED TO SUMMARY JUDGMENT ON COUNTS V AND VI (RACIAL PROFILING AND RACIAL/NATIONAL ORIGIN INTIMIDATION).
When granting summary disposition on Counts V and VI of Appellant’s
claims, the District Court relied upon the same line of reasoning as when disposing
of the Equal Protection claims, that is, the purported lack of evidence of racial
animus. This line of reasoning was similarly erroneous with respect to the claims
of racial intimidation and racial profiling.
Under R.I.G.L. § 9-1-51, an individual may be found liable for
racial/national origin intimidation under the following standard:
(a) Any person, who is maliciously subjected to an act or acts which would reasonably be construed as intended to harass or intimidate the person because of his or her race, religion, or national origin, may bring an action in the superior court against the perpetrator of the act or acts for compensatory damages including damages for emotional distress. The court, in its discretion, may also restrain and enjoin such future acts by the defendant.
Similarly, Rhode Island’s Racial Profiling Prevention Act forbids the police
to use race as a basis for their police acitivities:
No state or municipal law enforcement officer or law enforcement agency shall engage in racial profiling. For purposes of this chapter, “racial profiling” means the detention, interdiction or other disparate
53

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treatment of an individual on the basis, in whole or in part, of the racial or ethnic status of such individual, except when such status is used in combination with other identifying factors seeking to apprehend a specific suspect whose racial or ethnic status is part of the description of the suspect, which description is timely and reliable R.I.G.L. § 31-21.2-3. As cited above, there is ample evidence to support the inference that the Coventry Police singled out the Central Falls players for a search based upon their racial background. That conduct alone would be sufficient to violate R.I.G.L. § 31-21.2-3. Additionally, under the circumstances of this case as described above, that action could certainly have been construed as harassing and intimidating. Accordingly, summary judgment should not have been granted on claims brought under these statutes. VIII. CONCLUSION For the above-referenced reasons, the District Court’s grant of Appellees’ Motion for Summary Judgment should be OVERTURNED in its entirety, except as to the Appellants’ claims for municipal and supervisory liability.
/s/ Vicki J. Bejma Vicki J. Bejma /s/ Stephen M. Robinson Stephen M. Robinson Attorneys for Plaintiffs-Appellants
54

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CERTIFICATE OF COMPLIANCE WITH RULE 32(a) Certificate of Compliance with Type-Volume Limitation,
Typeface Requirement, and Type Style Requirements 1. This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(a)(B) because this brief contains 13,363, words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because: this brief has been prepared in a proportionally spaced typeface using Microsoft Word Times New Roman 14 point font.
/s/ Vicki J. Bejma Vicki J. Bejma Attorney for Plaintiffs-Appellants Dated: January 19, 2010
55

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ADDENDUM
56

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TABLE OF CONTENTS TO ADDENDUM Decision and Order of the District Court on the Motion For Summary Judgment Rhode Island Gen. Laws § 16-21-5.3
57

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UNITED STATES DISTRIC!1! COURT DISTRICT OF RHODE ISLAND

Juan Lopera, Marlon Giraldo,

)

Mauricio Espinal, Hector Cardona

)

Steven Giraldo, William Ruiz,

)

Pedro Hernandez, Luis E. Ardila-Lazaro )

by and through his parents and next

)

friends, Luis Ardila and Hziel Ardila, )

Brian Ocampo by and through his

)

parent and next friend, Alba

)

Jaramillo, Stephen Patino by and

)

through his parent and next friend,

)

Lilian Giraldo, Joulder Salazar by and )

through his parents and next friends )

Youlder Salazar and Martha Duran,

)

Milton Ricuarte, Jr. by and through

)

his parents and next friends, Milton )

Ricuarte, Sr. and Elizabeth Rivera,

)

)

Plaintiffs,

)

)

v.

)

)

Town of Coventry by and through

)

its Treasurer, Warren West, Kevin P.

)

Harris in his individual capacity and )

in his capacity as a police officer for)

the Town of Coventry, Kevin Kennedy in )

his individual capacity and in his

)

capacity as a police officer for the )

Town of Coventry, David Nelson in his )

individual capacity and in his capacity )

as a police officer for the Town of

)

Coventry, Stephen A. Michailides in his )

individual capacity and in his capacity )

as a police officer for the Town

)

of Coventry, Ronald E. DaSilva

)

individually and in his capacity as

)

Chief of Police for the Town of

)

Coventry, and Brian J. O'Rourke

)

individually and in his official

)

capacity as the former Chief of Police )

for the Town of Coventry,

)

)

Defendants.

)

C.A. No. 08-123 S

Case: 09-2386 Document: 00116004296 Page: 69 Date Filed: 01/19/2010 Entry ID: 5409683

Case

Document 36 Filed 09/11/2009 Page 2 of 2

JUDGMENT
[ ] Jury Verdict. Thl....etlan c.une before the Coure: for a trial by Jury. The i ....ues have been tried and the jury h ......endered it.. verdiet.
[ Xl Decl.. ton by the Court. This action earn .. to trhll or hea..ing: bero .... th.. Court. Th .. 1.lIlu ....
hav .. b ..en tried or heard and .. deci.lon ha.. been rend..red.
IT IS ORDERED AND ADJUDGED:
Pursuant to the Decision and Order entered by this Court on September 11, 2009 judgment hereby enters for the Defendants Town of Coventry by and through its Treasurer, Warren West, Kevin P. Harris in his individual capacity and in his capacity as a police officer for the Town of Coventry, Kevin Kennedy in his individual capacity and in his capacity as a police officer for the Town of Coventry, David Nelson in his individual capacity and in his capacity as a police officer for the Town of Coventry, Stephen A. Michailides in his individual capacity and in his capacity as a police officer for the Town of Coventry, Ronald E. DaSilva individually and in his capacity as Chief of Police for the Town of Coventry, and Brian J. O'Rourke individually and in his official capacity as the former Chief of Police for the Town of Coventry and against the Plaintiffs Juan Lopera, Marlon Giraldo, Mauricio Espinal, Hector Cardona Steven Giraldo, William Ruiz, Pedro Hernandez, Luis E. Ardila-Lazaro by and through his parents and next friends, Luis Ardila and Hziel Ardila, Brian Ocampo by and through his parent and next friend, Alba Jaramillo, Stephen Patino by and through his parent and next friend, Lilian Giraldo, Joulder Salazar by and through his parents and next friends Youlder Salazar and Martha Duran, Milton Ricuarte, Jr. by and through his parents and next friends, Milton Ricuarte, Sr. and Elizabeth Rivera.
---------------------------------Enter:
/s/ Ryan H. Jackson
Deputy Clerk
Dated: September 11, 2009

Case: 09-2386 Document: 00116004296 Page: 70 Date Filed: 01/19/2010 Entry ID: 5409683 Case 1:08-cv-00123-S-0LM Document 35 Filed 091.11/2009 Page 1 of 28

UNITED STATES DISTRICT COURT DISTRICT OF RHODE ISLAND

}

Juan Lopera, Marlon Giraldol

)

Mauricio Espinal, Hector Cardona

)

Giraldol William Ruiz,

)

Pedro Hernandez, Luis E. Ardila-Lazaro )

by and through his parents and next

)

friends I Luis Ardila and Hziel Ardila, )

Brian Ocampo by. and through his

)'

parent and next friend, Alba

)

Jaramillo, Stephen Patino by and

)

through his parent and next frienq,

)

Lilian Giraldo, Joulder Salazar by and )

through his parents and next friends )

Youlder Salazar and Martha Duran,

)

Milton Ricuarte , Jr. by and through

)

his parents and next friends, Milton )

Ricuarte , Sr. and Elizabeth Rivera,

)

)

Plaintiffs I

)

)

.v.

)

)

Town of Coventry by and through

}

its Treasurerl Warren West, Kevin P. ) Harris in his individual capacity and )

in his capacity as a pqlice officer for )

the Town of Coventry, Kevin Kennedy in )

his individual capacity and in his

}

capacity as a police officer for the )

Town of Coveritry, David Nelson in his )

individual capacity and in his capacity}

as a police officer-for the Town of

)

Coventry, Stephen A. Michailides in his )

individual capacity and in his capacity }

as a police officer for the ToWn

}

of CoventryI Ronald E. DaSilva

)

individually and in his capacity as

)

Chief of Police for the Town of

)

Coventry, and Brian J. O'Rourke

)

individually and in his official

)

capacity as the former Chief of Police )

for the Town of Coventry,

}

)

Defendants. )

C.A. No. 08-123 S

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DECISION AND ORDER

WILLIAM E. SMITH, United States District Judge.

In this action, Plaintiffs, now former members of the Central

Falls High Schoolboys soccer team, claim their civil rights were

violated when they were subjected to a humiliating search in front

of a crowd of unruly spectators by the

police officers.

While' dismayed and disappointed by the officers I lack of

profesional judgment and the appalling conduct of the crowdl the Court is compelled to conclude that the police officers' 90nduct is

covered by the doctrine of qualified immunity. Moreover,

Plaintiffs have failed to satisfy their burden with respect to

their claims of discrimination and muni,cipal and supervisory

liability. SOl for the reasons explained in detail below, the

Defendants' Motion for summary Judgment is granted.

I. Factual

On September 28, 2006, the Central Falls High School boys

soccer team played an away game

Coventry High School. The

Central Falls team arrived by bus. Before the ·game began, five or

six Central Falls players used the bathrooms located inside the

Coventry boys locker room. While inside ,one o.f the Central Falls

players noticed a security guard keeping an eye on them.

. 1. The facts described are taken from the record evidence including depositions of the relevant· players in the controversy. While reviewed from the standpoint most favorable to the Plaintiffs, as required at the summary judgment stage, the basic facts are essentially undisputed.
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1:08-cv-00123-S-DLM Document 35 Filed 09/11/2009 Page 3 of 28
The game was played and resulted in a tie. After the gamer " Coach Marchand (the Central Falls coach) sent his team to the bus and followed behind them. Before Coach Marchand reached the bus, approximately twenty players from the Coventry football team stopped him, and in profanity-laced terms accused the Central Falls players of stealing t;!Ilectronic devices (iPods and cell phones) from theCqventry locker room.
Coach Marchand told the football "players that he would get to the bottom of the allegation and had them follow him to the team bus. The Central Falls players already were on the bus waiting to leave. Coach Marchand entered the bus and told his players; "everybody needs to put their game bag, varsity bag" and their"book bags . . . on their laps. II The coach and his assistant coach then searched each bag for the alleged stolen items. If one of his players had an iPod or cell phone, Coach Marchand asked for proof of ownership. In his deposition, he characterized the search as a good one - - "I think we did a Columbo search, you know I CSI." The entire search took twenty to twenty-five minutes and none of the missipg items were found.
When Coach Marchand exited" the bus I the original group of "twenty f90tball players had grown to about fifty or sixty students and adults. The Coventry Athletic Director" was also waiting. According to Coach Marchand, at this point the crowd was extremely
3

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vocal, shouting derogatory and racist remarks at his team and threatening not to disperse until the missing items were found.
As .Coach Marchand began to discuss the situation with the Coventry Athletic Director! the four Defendant police officers arrived on scene.· The officers entered the parking lot with sirens wailing and "boxed-in" t:tle.bus with their police cruisers. Coach Marchand and the Athletic DirectoI;: then brought the officers up to speed on the situation. Coach Marchand informed the officers that the crowd suspected his team of stealing (or in the coach's own words: that his players were the "prime suspects. II) A discussion ensued and at some point I after a "pregnant pause" in the conversation, the topic of whether the officers could do their own , search came up. The parties agree it was at this point Coach Marchand consented to another search of his players. (In his deposition, however, Coach Marchand explained that he only consented because he felt compelled to do so under the circumstances. )
After obtaining Coach Marchandl s conse.nt, the office:.;s ordered the Central Falls players to exit the bus with their belongings and stand with their backs against the bus. Up to this point, the police officers made little to no effort to quell or disperse the
4

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crowdl even as the crowd verbally assailed the players shouting

racist epithets and accusations of theft.2

The search of the players began with the officers ordering

each player to step forward one at a time with his bag. The

officers then sorted through the contents of each bag on the hood

of a police cruiser. If one of the officers discovered an iPod or

cell phone, he held it up for the-crowd to see -- purportedly to

allow the "victims" a chance to identify the stolen property. Some

of the boys were asked to stretch their waist band and

their

shirt so the officers could make sure they were not hiding

.anything I and a few of the boys were subj ected to pat down

searches. The entire search Rythe police I all of which took place

in front of the angry mob t lasted approximately one hour and none

of the missing items were found.

the mob persisted in its boorish behavior, even

after the search ended. Concerned that the mob would take matters

into its own hands, the officers in classic too little, too late

fashion decided for safety reasons to escort the bus out of town.

II . Standard of Review

summary judgment is appropriate where there is. no genuine

issue of material facti and the moving "party is entitled to

2 For example/ one player heard a woman in the crowd call the boys "spics ,II Coach Marchand testified that people in the crowd used phrases like; "those people," "they're good at hiding things," "they're sneaky, you know it, /I and made reference to the boys being from "the ghetto."
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judgment as a matter of law. Fed. R. Civ. P.' 56(c). A genuine issue exists if a "reasonable jury 'could return a verdict for the nonmoving party, 1/ and a fact is material if it has the, "potential to affect the outcome of the suit. 1/ Yelazguez-Garcia v. Horizon' Lines of 'Puertg Rico, Inc., 473F.3d 111 15 (1st Cir. 2007). The Court views all facts and draws all reasonable inferences in favor of the nonmoving party. Torrech-Hernandez v. Gen. Elec, Co., 519 F.3d 41, 46 (1st Cir. 2008).
When the defense of qualified immunity is rais,ed on summary judgmentl as it is in this case, the Court begins by "identifying the version of events that best comports with the summary judgment standard and then [asks] whether f given that set of facts, a reasonable officer shOUld have known that his actions were unlawful." Morelli v. Webster, 552F.3d 12, 19 (1st Cir. 2009). III. Discussion
Plaintiffs' Complaint alleges six causes of action brought pursuant to 42 U.S.C. § 1983 and state law. Counts I-III allege that the officers violated, the boys I bue Process I 3 Equal Protection, and Fourth Amendment rights. 4 The remaining causes of

3 At 6ralargument, Plaintiffs' counsel conceded that the Due Process claim (Count I) overlaps their claim under the Fourth Amendment (Count III) and was not intended to allege a violation of Plaintiffs' substantive due process rights.
4 Plaintiffs' § 1983 claims against the police officers are asserted in both the officersl individual and official capacities. Because claims brought against a municipal employee in his or her official capacity are essentially claims against the municipality

Case: 09-2386 Document: 00116004296 Page: 76 Date Filed: 01/19/2010 Entry ID: 5409683 Case 1:08-cv-00123-S-DLM Document 35. Filed 09/11/2009 Page 7 of 28

actIon allege violations of R.I. Gen. Laws § 9-1-28.1, Invasion of

. Privacy (Count IV) i .§ 31-21.2-3. Racial Profiling (Count V) i and §

9-1-35 Ethnic Intimidation (Count VI). Although not alleged in

separate counts I Plaintiffs l Complaint also presents claims. against

the Town and·the Defendant police chiefs for a failure to train and

supervise the officers. s See Monell

of Soc. Servs., 436

U.S. 658 (1978);

A. Qualified

Plaintiffs allege the officers violated their Fourth Amendment

right against unreasonable searches. On this claim l the officers·

have

the defense of qualified immunity, which "protects

government officials from liability for civil damages insofar as

their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have

known." Pearson v. Callahan, 555 U.S.

129 S. Ct. 808, 815

(2009) (quoting Harlow y. Fitzgerald, 457 U.S. 800[ 818 (1982».

Qualified immunity shields officials who perform their duties

itself,

duplicative of Plaintiffs' direct action against

the Town.

Hafer v. Melo, 502 U.S. 21, 25-27 (1991). Thus the

Court·need not consider each official capacity claim separately.

5 During oral argument, Plaintiffsl counsel clarified that the Complaint indeed contained claims for failure to train and supervise. However, in the Court's. view that is debatable. Notwithstanding the inartfully drawn complaint, . the Plaintiffs received the benefit of the doubt,· but because the Defendants' motion only addressed the causes of action specifically delineated
in the Complaint, the Court allowed them to supplement their motion and address the merits of the two additional claims.

7

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reasonably from liability· and "applies regardless of whether the official's error is a mistak·e of lawI a mistake of fact f
or a mistake based on mix.ed questions of law and fact." 1.l1..t. at 815 (quoting Groh v. Ramirez, 540 U.S. 551, 567 (2004) (Kennedy, J. f dissenting» .
Determining whether a public official is entitled to·qualified immunity is a two-step inquiry. Maldonado v. Fontanes, 568 F.3d 263, 269 (1st Cir. 2009). Under this test l \\ [a] court must decide: (1) whether. the facts alleged or shown by the plaintiff make out a violation of a constitutional right; and (2) if so, whether the right was 'clearly established' at the time of the defendant I s alleged violation. II Id. (citing Pearson, 129 S. Ct. at 815-16). The clearly established prong has two aspects: (1) the clarity of the law at the time of the alleged civil rights violation and (2) whether given the facts o.f the particular case a reasonable defendant would have understood that his conduct violated the plaintiffs' constitutional rights. LL.. A negative answer to either question results in a finding of qualified immunity for the official asserting the de·fense. §tarlj,ght Sugar, lru;; f V. §oto , 253 F.3d 137 1 141 (1st Cir. 2001).
The order in which the· questions are answered rests within the discretion of the Court. §ee Pearsonr 129 S. Ct. at 813 (holding that the inquiry need not be conducted in a strict sequential order). A judge may skip ahead and decide whether the right at
8

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issue was clearly established without deciding whether that right

was violated. Id. at 820-21. In some cases, including this one,

the two-step analysis blends together, where the question of

whether a constitutional violation occurred depends on whether the

law regarding the officers' right to rely on a consent to search

was clearly established, and, if not, whether the officers' actions

were objectively reasonable. See Anderson v. Creighton, 483 U.S.

635, 648 (1987) (Stevens, J., dissenting) (noting the "double

standard of reasonableness" that apparently applies in Fourth

Amendment cases where

immunity is invoked).

1. Constitutional Violation

Here, it is' a close call as to whether a constitutional

violation occurred. There is no question that tb.e Fourth Amendment

applied to the search of the players and their belongings.' See New

Jersy v. T.L.Q" 469 U.S. 325, 337-338 (1985) ("A search of a

child's person or of a closed purse or other bag carried on her

person, no less than a similar search carried out on an adult, is

undoubtably

severe violation of subjective expectations of

privacy."). And, it is undisputed that the police did not have a

search warrant and the search of the boys was not supported by

probable cause; See Arizona v. Gant, -- U.S. --, 129 S. Ct. 1710,

1716 (2009) (stating that warrantless searches are per se

unreasonable under the Fourth Amendment and justified only under

specifically established and well-delineated exceptions). A search

9

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of a public school student will survive constitutional scrutiny if

supported by a reasonable .and individualized susp.icion "that the

search [would] turn up evidence that the student has violated or is

violating either the law or the rules of the school. II T. L. O. , 469

U.S. at 342. A reasonable suspicion, as opposed to propable causer

is required because' Fourth

rights "are different in

public schools than elsewhere rll and strict adherence. to a

traditional Fourth Amendment analysis would undercut

needs" that exist in the public school context.' Vernoni9- sch.

Diet. 47J v. Actonr 515 U.S. 646/ 656 (1995),.

Defendants concede, at least for purposes of this argument/

that it is unlikely a reasonable suspicion existed to justify the

search of the. Central Falls players. Insteadr the Defendants

contend no constitutional violation occurred because Coach Marchand

consented to the search in loco parentis. Generally/ a search

'Conducted pursuant to a. valid consent is constitutional.

Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973). Furthermore,

the ability to give valid consent is not limited to a person with

actual authority to consent. Illinois v. Rodriguez/ 497 U.S. 177/

185-86 (1990). Consent may be given by .a person with apparent

authority; that is:; an individual 'whom the officer reasonably

believes has authority to consent. United Stateg v. Carrasco/ 540

F.3d 43,49 (1St Cir. 2008) ("[8]0 long as law enforcement officers

reasonably believe that the person who gives consent has the

10

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authority to do 80, they may rely on that consent."); United States

408 F.3d 14, 21 (1st' Cir. 2005). Coach ' Marchand' 8

authority to consent on behalf of his players, however, is far from

clear, and even though the existence of'apparent authority would,

in essence, dictate a finding of no constitutional violation, the

question of the officers' reasonableness, in the context of a
, '
qualified immunity analysis, are more properly explored under the

clearly established prong.

Therefore, the prudent approach in this case is to resolve the

qualified immunity analysis by examining the clearly established

'. prong, leaving the question of whether an actual constitutional

violation occurred to the side.

2. Clearly Established Right

A right is cle1)l.rly established when "the contours of the right

[are] sufficiently clear that a reasonable official would

understand that what he is doing

that right." Wilson v.

Layne, 526 U.S. 603, 615 (1999) (quoting Anderson, 483 U.S. at

640). The inquiry requires the Court to consider the state of the

law at the time of the challenged aet,or in other words \\conduct ,

the judicial equivalent of an archeological dig."

v. Rhode

Island, 338 F. 3,d 23, 28 (1st Cir. 2003) (en bane). If "controlling

authority" on the issue does not exist, a plaintiff may point to a

"consensus of cases of persuasive authority such that a reasonable

officer could not have believed that his actions were lawful."

11

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Bergeron v. Cabral, 560 F.3d 1, 11

Cir. 2009) i

Wilson, 526

U.S. at 617. Careful attention also must be paid to the factual

nuances 9f the case, so as to properly define the right at issue.

Wilson, 526 U.S. at '615 (citing Anderson, 483 U.S. at 641);

also Bergeron, 560 F.3d at 11. And, when guidance concerning the

right is lacking or unclear, 'qualified immunity attaches because

the law does not penalize officers for "picking the losing side of

the controversy,lI Wilson, 526 U.S. at 618; Joyce y. Town Qf

Tewksbury, 112 F.3d 19, 22 (1st Cir. 1997) (en bane). "This is not

to say that an official action is protected by qualified immunity

unless the very a.ction in question has previously been held

unlawful, but it is to say that in the light of pre-existing law

the unlawfulness must be apparent." Anderson, 483 U.S. at 640

(citations omitted). At bottom, "the salient question is whether

the state of the law at the time of the alleged violation gave the

defendant fair warning that his ' particular conduct was

unconstitutional. II Maldonado, 568 F. 3d at 269.

Defendants contend that in,the eyes of the officers at the

scene, Coach Marchand had the requisite apparent authority· to

consent to a search, and it was reasonable for them to perceive him

as acting in loco parentis over the players. Plaintiffs respond

that it is well settled that the in loco parentis doctrine in the

student search context cannot justify the search of a student.

Plaintiffs ,do acknowledge that at one time the law considered a

12

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school official to act broadly in loco parentis, but they argue that over the last thirty years, that notion has become serious'ly outdated.
In T.L.Q., the Supreme Court appeared to soundly reject the doctrine of in loco parentis as a rationale to justify a search of a student: "In carrying out searches and other disciplinary functions pursuant to such policies, school officials act as representatives of the State, not merely as surrogates for the parents, and they cannot claim the parents' immunity from the
-
strictures of the Fourth Amendment." T.L.O., 469 U.S. at 336-37. Later, however, the Supreme Court added confusion when it referred to the powers school officials have over students as "custodial and tutelaryf pe.rmitting a degree of supervision and control that could not be exercised over free adults." Vernonia, 515 U.S. at 655. Vernonia acknowledged ."that for many purposes school authorities act in loco parentis with the power and indeed the duty to inculcate tl).e habits and manners of civility." Id. (quoting Bethel Sch, Dist. No. 403 v. Fraser, 478 U.S. 675, 684 (1986) '(internal quotations omitted)).
Recently, the Supreme Court passed up .an opportunity to clarify whether the in loco· parentis doctrine has any significance in school search cases. See Safford unified Soh. piatt No. 1 v. Redding, -- U.S. --, 129 S. Ct. 2633, 2637 (2009). In Redding, the Supreme Court reviewed the conduct of a school official who
13

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subjected athirteen.-year-old student to a search of her bra and

underJ?ants on the suspicion that she was' secreting prescription and

over-the-counter drugs. The court held that the search violated

the student's constitutional rights, but because the relevant law

that .surrounded the right was not clearly established, the school

official who ordered the search was entitled to qualified immunity.

Id. at 2644."

In light of the Supreme Court's silence on the issue and the

rather clear language of T.M,O., a persuasive argument could be

made that the in loco parentis doctrine serves no purpose in cases

involving the Fourth Amendment rights of public school students.

However, based on the full record of commentary on the issue, this

Court cannot conclude that this was a .clearly established principle

of constitutional law in 2006. See Morse "if. Frederick, 551 U.S.

393, 416 n.6 (2007) (J. Thomas, concurring) (stating that at least

nominally the Supreme' Court continues to recognize the

applicability of the in loco parentis doctrine to public sChools).

Indeed, such a conclusion is not possible without ignoring the

Supreme .Court' s statements in

and Frasier.

6 Justice Thomas's partial dissent urged the Court to adopt an

in loco parentis standard ·to govern all school search cases, a

point the majority declined to address. See Safford Unified Sch.
. Dist. No.1 v. Redding, -- U.s. --, 129 S. Ct. 2633, 2646, 2655

(2009) (Thomas, J., concurring in part, dissenting in part)

(advocating for· a "return to the common-law doctrine of in loco

parentis" and a

restoration" of the doctrine) (emphasis

added) .

14

Case: 09-2386 Document: 00116004296 Page: 84 Date Filed: 01/19/2010 Entry ID: 5409683 Case 1:08-cv-00123-S-DLM Document 35 Filed 09/11/2009 . Page 15 of 28

A review of circuit courts' decisional law also contributes to

the lack of clarity on the issue. The courts that have referred to

the in loco parentis doctrine have done so in a way that makes it

appear

that

the

doctrine

is

a

v. iable

source

of

authority .

to

justify

a school official's actions.

Hamptc:n v. Oktibbeha County.

Sheriff Dep't, 480 F.3d 358, 362 (5th Cir. 2007) (stating that

school officials act in loco parentis in dealing with students);

R§J!loS v .. Town of Vernon, 353 F. 3d 171, 183 n.S (2d Cir. 2003)

(implying that in a public school the in loco parentis doctrine

allows for a greater degree of control over children.)i Gruenke y.

Seip, 225 F. 3d 290, 307 (3d Cir. 2000) ("public schools must not

forget that \ in loco parentis' does not mean \displace parents. I II ) ;

'Wojcik v. Town of N. Smithfield, 76 F.3d 1, 3 (1st Cir. 1996)

(indicating that school officials acted in loco parentis in

connection with a Fourth Amendment seizure of a child); Hassan v.

Lubbock Indep. Soh. Dist., 5S F.3d 1075, 1080 n.1S (5th Cir. 1995)

(citing Webb v. McCullough, 828 F.2d 1151 (6th Cir. 198·7) (stating

that school field trips often present greater, not lesser,

challenges to school" officialS and justify in loco parentis

authority as well as officiaf authority»; Rhodes v. Guarricino, 54

F. Supp. 2d 186 f 192 (S .D. N. Y. 1999) ("Much more than when on their

home campus, defendants were acting in loco parentis to

plaintiffs. /I) i see also Seal v. Morgan, 229 F. 3d 567, 582 (6th Cir.

2000) (Suhrheinrich, J., dissenting in part) ("In addition to their

15

Case: 09-2386 Document: 00116004296 Page: 85 Date Filed: 01/19/2010 Entry ID: 5409683 Case 1:08-cv-00123-S-DLM Document 35 Filed 09/11/2009 Page 16 of 28

duty to educate, schools act in loco parentis. II ); Schleifer by

Schleifer v. City of Charlottesville, 159 F.3d 843, 861 (4th Cir.

1998} (Michael, J., dissenting) (Uthe teachers and administrators

of a public school will act 'in loco parentis' while children are

in their physical custody because parents 'delegate part of (their]

authority' to the school by placing their children under its

instructionll ) -; see generally Knox. County Educ. Ass 1 n v. Knox County

Bd. of Educ., 158 F.3d 361 1 375· (6th Cir.· 1998) (upholding a program of conducting suspicionless drug testing of teachers and

administrators in part because of the in loco parentis obligations

imposed upon them by state statute). But

Tenenbaum y.

Williams, 193 F.3d 581, 594 n.9 (2d Cir. 1999) ("the Supreme Court

has rejected the notion that public schools generally act in loao

parentis in their dealings with students") .7 Courts have bandied

about the phrase to such an extent that it is far from clear

what role the in loco parentis doctrine plays in a Fourth

Amendment analysis, particularly in the specific factual context

presented here.

7 So there is no confusion, the Court is not suggesting that these authorities stand for the proposition that Coach Marchanq had the authority to consent by virtue of any in loco parentis status he may have had. All the Court is saying is that the case law on the limit.s of a school official's in loco parentis authority in the specific factual context of this case is not sufficiently clear so that a reasonable police officer would be on notice that searching players based on the consent of their coach is unconstitutional.
16

Case: 09-2386 Document: 00116004296 Page: 86 Date Filed: 01/19/2010 Entry ID: 5409683 Case 1:08·cv-00123-S-DLM Document 35 Filed 09/11/2009 Page 17 of 28

Based on all this, it cannot be said that the law in 2006 was

clearly established concerning whether a high school coach

chaperoning his players during an away game could or could not

consent to a search of his players by police in loco parentis.

What is clear, however, is that Fourth Amendment rights ."are

different in public schools than elsewherei' [and] the

'reasonableness' inquiry cannot disregard the schools' custodial

and tutelary responsibility for children." Vernonia, 515 U.S. at

656. .Therefore, because the law was not clearly established

. concerning Coach Marchand's authority to consent to the search, the

Defendant officers were entitled to rely on the consent.

Plaintiffs' argument -- that if a public school official

cannot consent to his own infringements of students' Fourth

Amendment rights,

T.L.O.,

U.S. at 336-37, then he cannot

authorize another to accomplish the forbidden act -- is logically

persuasive, but ultimately unavailing to block qualified immunity.

In addition to the muddy state of the case law described above, the

argument also overlooks the question of the reasonab.1eness of the

officers' (mis) judgment . . Bergeron, 560 F.3d at 12-13. If the

officers could reasonably have believed that they were able to rely

on Coach Marchand's consent (even if that belief was wrong), they

would be entitled to qualified immunity. Id. at 13; Jennings v.

!lones ,499 F. 3d 2, 18 (1st Cir. 2007) (" (E) ven if an· officer's

conduct violated clearly established Fourth Amendment law, he may

17

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Case 1

Document 35 Filed 09/11/2009 Page 18 of 28

still be eligible for qualified immunity if he was reasonably'

. mistaken as to the degree of force he should have used."}. Given

the state of the law at the time, and Coach

apparent

authority over his players, it. was reasonable for the officers to

have believed they could rely on Coach Marchand's consent and

qualified immunity must apply.

Attempting to avoid this result, Plaintiffs point to a written

Coventry Police Department policy and R.I. Gen. Laws § 16-21.5-3,

both of which deal with interrogating minors, and argue that in

light of these authorities it was clearly established that Coach

Marchand could not consent in loco parentis. s This argument fails

for two reasons. First, the Coventry policy and § 16-21.5-3 only

apply to questioning and not to searches i and, second,. these

authorities' do nothing to clarify the state of federal

constitutional law.

"Officials sued for constitutional violations do not lose

their qualified immunity merely because their conduct violates

8 In pertinent part, the statute requires that:
Before making a high school pupil under eighteen (lB) years of age available to a law enforcement officer for the purpose of questioning, the principal of the school, or his or her designee, shall info,rm the pupil that the pupil has the right to request that his or her parent or guardian or an adult family member, or person on the list of emergency contacts for the pupil be present during the questioning.
R.I. Gen. Laws § 16-21.5-3{a).
18

Case: 09-2386 Document: 00116004296 Page: 88 Date Filed: 01/19/2010 Entry ID: 5409683 Case 1:08-cv-00123-S-DLM Document 35 Filed 09/11/2009 Page 19 of 28

statutory or administrative provision." Davis v. Scherer, 468 U. S.

183, 194 (1984) (emphasis added). Put another· way, "a state

official's violation of a state statute or regulation, not itself

the basis of the federal suit, should not deprive the official. of

qualified immunity from damages for violation of other statutory or

constitutional provisions." Goyco de Maldonado v. Rivera, 849F. 2d

683, 687 (1st Cir. 1988) (citing Davis, 468 U.S. at 193 96).

Simply put, neither police department policy nor Rhode. Island

statutes can determine whether federal law was clearly established.

Plaintiffs also argue that even if the law on Coach Marchand's

authority to consent was not clearly established, the officers

still acted unreasonably because the consent was the product of

>

"

•

coercion and therefore invalid. The voluntariness question -- that

is, whether consent to a search was the product of duress or

coercion (express or implied) -- is determined from the

of

the circumstances. United States v. Dunbar, 553 F.3d 48, 57 (1st

Cir. 2009) i United States v. Luciano I 329 F.3d 1, 7 (1st Cir.

2003). Each case must be viewed on its owpfacts and in its own

context. United States v. Berkowitz, 429 F.2d 921, 925 (1st Cir.

1970) . "There is no talismanic de;Einition of 'voluntariness'

readily applicable to the myriad situations in which the police

find it efficient to ask permission to conduct a consensual

search. I' United States v. Hall, 969 F.2d 1102 1 1106 (D.C. Cir.

19

Case: 09-2386 Document: 00116004296 Page: 89 Date Filed: 01/19/2010 Entry ID: 5409683

Case 1

Document 35 Filed 09/11/2009 Page 20 of 28

1992) . Relevant factors include "the consenting party's age,

,

,

education, experience, intelligence, and knowledge of the right to

withhold consent" and whether the consenting'party was advised,of

his

and whether consent was obtained under "inherently

coercive circumstances ,II DunQs.i:, 553 ,F. 3d at 57 (quoting United

States v. Forbes, 181 F.3d I, 5 (1st Cir. 1999).

In this case, concerns that Coach Marchand's consent was

coerced are put to rest by his deposition testimony. Coach

Marchand testified that in response to the officers' request

consent he thought about the safety of his team, and the fact he

knew his team was innocenti and, he said, 'that he decided to take

the "high road. II (Def. s' Mot. for Summ. J. Ex,. A 28 (Doc. 25) . P

From this it is obvious Coach Marchand understood the situation and

rendered consent after careful and deliberate thought. 10 Coach

9 Coach Marchand further testified:
I'm a First Amendment [sic] guy, you're getting to know [sic], you know, and I dread to say, screw you get a search warrant and I debated that; Okay. Then I said no, that's not my role t at that point my role as coach, I'm suppose (sic) to be the father, I'm suppose (sic) to take them home safe.
(Defs' Mot. for Summ. J. Ex. A 29 (Doc. 25).}
10 At one point in his deposition, Coach Marchand said he consented because he was under duress. However, considering his use of the term "duress" in context, ,it is evident that Coach Marchand was attempting to poetically explain the stressfulness of the situation and the ditficulty of his decision -- albeit perhaps inartfully for Fourth Amendment purposes. {Def.s' Mot. for Summ. J. Ex. A 30-31 (DoC. 25).) It does not automatically follow that his consent was involuntary simply because he stated that he ·was
20

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Marchand's oonsent was voluntary and the officers' qualified immunity cannot be defeated on this basis. Accordingly, summary judgment will enter in favor of the Defendants on Counts I and III.
B. Invasion of privacy Claim need be said about Plaintiffs' claim for invasion of
privacy tinder R. I. Gen. Laws § 9-1-28.1 because the qualified immunity defense is "well grounded in the law of Rhode Island." Hatch y. Town of Middletown, 311 F.3d 83, 90 ('1st Cir. 2002) (discussing "recognition of a qualified immunity defense under state law analogous to the federal doctrine"); J.R. y. Gloria, 599 F. Supp. 2d 182, 205 {D.R.I. 2009}. Plaintiffs' cause of action for invasion of privacy arises from the conduct for which the officers are immune from suit. Summary judgment is therefore appropriate on Count IV as well.
C. Equal Protection "To succeed on a § 1983 equal protection claim, the plaintiffs must prove that the defendants acted in a discriminatory manner and that the discrimination was intentional. I' Reese v. Jefferson Sch. Dist. No. ' 14J, 208 F.3d 736, 740 (9th Cir. 2000); /See Hayden v. Grayson, 134 F.3d 449 1 453 (1st Cir. 1998)'. "That is, the
under duress. The Court also rejects Plaintiffs' argument that the circumstances under which Coach Marchand gave consent were inherently coercive. See United States v. Jones, 523 F.3d 311 39 (1st Cir. 2008) (affirming a finding of voluntary consent when given by a defendant surrounded by officers and holding that custody alone was not enough to show coercion) .

Case: 09-2386 Document: 00116004296 Page: 91 Date Filed: 01/19/2010 Entry ID: 5409683

Case 1

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plaintiff must establish that the defendant intentionally treated

the plaintiff differently from others who were similarly situated. II

In re Subpoena to Witzel, 531 F. 3d 113, 118-19 (1st Cir. 200S). "A

discriminatory intent or purpose means that the defendants

'selected or reaffirmed a particular course of action at least in

. part because of, not merely in spite of, its adverse effects upon

an identifiable group.'. II

at 119 {quoting Wayte v. United

States, 470 U.S. 598, 610 (1985}).

Herel Plaintiffs have failed to produce evidence sufficient to

permit a reasonable jury to find that the officers' conduct was

racially motivated. Plaintiffs argue that the overwhelming

circumstantia:t evidence proves that they were singled out based

upon race. They point to evidence that Central Palls is an

ethically diverse communitYi the team was comprised of a number of

Hispanics; the officers acknowledged members of the crowd could

have just as likely perpetrated the theft but no one else was

searched; and that the officers took no effective action to silence

the mob from spewing racist insults.

It is the rare case in which a plaintiff can point to specific

racist statements made by government officials,.andcircumstantial

evidence may certainly demonstrate an intent to discriminate.

Judge v. City of Lowell/ 160 F.3d 67, 77 (1st Cir. 1998) (overruled

on other grounds). But the facts Plaintiffs have marshaled to

support an inference of discriminatory animus are woefully

22

Case: 09-2386 Document: 00116004296 Page: 92 Date Filed: 01/19/2010 Entry ID: 5409683
Case 1:08-cv-00123-S-DLM Document 35 Filed 09/11/2009 Page 23 of 28
inadequate.' Circumstantial evidence consists of proof of a series of facts or circumstances from which the existence or nonexistence of another fact may be reasqnably inferred. Absolutely nothing can be inferred from Plaintiffs' evidence and to conclude otherwise is to engage in rank speculation. See Calvi v. Knox County, 470 F.3d 422, 426 (1st Cir. 2006) (stating that at the summary judgment stage a conglomeration of conclusory allegations, improbable inferences, 'and unsupported speculation is insufficient to discharge the nonmovant's burden).
While the evidence may reflect the officers I poor judgment in giving into an unruly mob and humiliating the boys, it does not, even approach discrimination .. It is undisputed that Coach Marchand informed the officers' that his team was under suspicion for the alleged theft -- or in Coach Marchand's words "the prime suspects ,II Furthermore, the officers only conducted their search after Coach Marchand consented. The officers' conduct in this case resulted from the information and consent that Coach Marchand provided and not from any racial or ethnic bias. Summary judgment on Count II will therefore enter in Defendants' favor.
D. 'R. I. Racial Profiling Prevention Act and Ethnic Intimidation statute
For the reasons stated above with respect to Plaintiffs' Equal Protection claim, summary judgment must also enter on Counts V and VI, brought under Rhode Island'a Racial Profiling Prevention Act, R.I. Gen. Laws § 31-21.2-3, and Ethnic Intimidation Statute, R.I.
23

Case: 09-2386 Document: 00116004296 Page: 93 Date Filed: 01/19/2010 Entry ID: 5409683 Case 1:08-cv-00123-S-DLM Document 35 Filed 09/11/2009 Page 24 of 28

Gen. Laws§ 9-1-35. Both statutes require discriminatory animus.

The Racial profiling Prevention Act requires that an individual be

subject to disparate treatment by a law enforcement officer or

agencYt in whole or in part, on the basis of race or ethnicity.

R.I. Gen. Laws § 31-21.2-3. Simi larly I the Ethnic Intimidation

Statute allows for a cause of action when a person has been

"maliciously subjected to an act or acts which would reasonably be

construed.as intended to harass or intimidate the

of

his or her race, religion , or national origin," 1.9:..t. at § 9-1-35.

Plaintiffs have presented no evidence from which a reasonable trier

of fact ·couldconclude the Defendants' actions were motivated by

the Plaintiffs' race or ethnicity. Again, it is critical to

distinguish between the racist behavior and .words of the mob and

those of the officers. There is no evidence to support saddling

the officers with the idiocies of the.adults and students in the

mob. Therefore, Defendants' Motion for Summary Judgment on CO'l.'l,Ilts

V and VI must be granted.

E. Supervisory Liability

Plaintiffs are also seeking to hold Chief DaSilva and Chief

oI Rourke liable in their capacitiel;! as supervisory officials.

SupervisorY liability cannot be predicated on a respondeat superior

theory, and instead must stem from the supervisor's own acts or
v. omissions. Seekamp Michaudt 109 F.3d 802, 808 (1st Cir. 19.97),

A supervisor can be held liable if (l) the behavior of his

24

Case: 09-2386 Document: 00116004296 Page: 94 Date Filed: 01/19/2010 Entry ID: 5409683

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,subordinates results in a constitutional violation, and (2) the

supervisor's action or inaction was affirmatively linked to that

behavior in that it could be characterized as supervisory

encouragement I condonation or acquiescence or gross negligence

amounting to deliberate indifference. Id. (quoting Lipsett v!

Univ. of Puerto Rico, 864 F.2d 881, 902 (1st Cir. 1988) (internal

quotations omitted».

Hyperbole and speculation are behind Plaintiffs' claims for

supervisory liability. Plaintiffs have not alleged either police

chief was at the scene or had prior knowledge (actual or

constructive) of the situation such that it could be argued they

were deliberately indifferent in failing to prevent the search.

Rather, Plaintiffs rest their claims for supervisory liability on

a theory of inadequate training. Despite submitting evidence that

the Coventry Police Department sent at least one of its officers to

a basic and

school resource officer training program

hosted by the National Association of School Resource Offiders l Plaintiffs argue that the chiefs' failure to train its officers

amounted to deliberate indifference given the inevitable likelihood

officers in the Town would confront situations involving 'searches

of public school students; This argument asks too much.

Plaintiffs have presented no evidence of \\a known history of

widespread abuse s'\Jfficient to alert a, supervisor to ongoing

violations." Maldonado-Denis v, Castillo-RodrigueA, 23 F.3d 576 1 '

25

Case: 09-2386 Document: 00116004296 Page: 95 Date Filed: 01/19/2010 Entry ID: 5409683 Case 1:08-cv-00123-S-DLM Document 35 Filed 09/11/2009 Page 26 of 28

582 (1st cir. 1994). Plaintiffs did submit evidence that coventry

officers have in the past responded to .the high school and

conducted searches, but a smattering of such incidents does not

place this case within the "narrow range of circumstances, il where

the constitutional violation alleged occurs as "a highly

predictable consequence of ,a failure to equip law enforcement

officers with specific tools to handle recurring situations."

Young v. City of Providence, 404 F.3d 4, 28 (1st cir. 2005). Even

if the Court assumes the officers' actions amounted to a

constitutional 'violation, the evidence submitted is inadequate to

conclude Chief DaSilva or Chief O'Rourke was deliberately

indifferent or wilfully blind. See Maldonado-Denis, 23 F.3d at 582

(" [I] solated instaIlces of unconstitutional activity ordinarily are

insufficient to establish a supervisor's policy or custom, or

otherwise to show deliberate indifference."). Simply put, without

a shred of evidence that the ,action or inaction of either chief

\\led

to the constitutional violation, II Plaintiffs'

supervisory liability claims fail as a matter of law. Maldonado,

568 F.3d at'275 {quoting Pineda v, Toomey, 533 F.3d 50, 54 (1st

Cir. 2008».

F. Municipal Liability

Having disposed of all claims brought against the Defendants

in their individual capacities I the Court addresses whether a basis

'exists to hold the Town of Coventry liable. The cloak of qualified

26

Case: 09-2386 Document: 00116004296 Page: 96 Date Filed: 01/19/2010 Entry ID: 5409683

. Case 1

Document 35 Filed 09/11/2009 Page 27 of 2S

immunity that protects the officers does not shield the Town from

liability.

Estate at Bennett v. Wainwright, 548 F.3d l55 1 177

(1st Cir. 2008) ("[IJtis not impossible for a municipality to be

held liable for the actions of lower-level officers who are

themselves entitled to qualified immunity.") .. To prevail, however,

. Plaintiffs need evidence that the officers' actions constitute a

constitutional violation and were ,caused by a "policy or custom" of

the ,Town. Id. {citing

v.

506 F.3d

32, 41 (1st Cir. 2007»; see also Monell I , 436 U.S. at 694. In

other words l the po1icy or cus.tom must be the \\moving force behind

deprivation of constitutional rights. JJ Bisbal-Raroos v. City of

Mayaguez, 467 F.3d 16, 24 (1st Cir. 2006). To be actionable a

custom or practice must be "so well-settled and widespread that the

policymaking officials of the municipality can be said to have

either actual or constructive knowledge of it yet did nothing to

end the practice.,t Id. at 23-,24 {quoting Silva v. WQrden, l30 F.3d

26, 3l (lst cir. 1997) (internal quotations omitted». Where·a

claim of inadequate training is alleged to have caused the

constitutional injuryl the municipality/s failure to.train must be

the product of deliberate indifference such that the Town

disregarded a known or obvious risk of serious harm from its

failure to develop an ade·quate training program. Estate of

548 F.3d at l77; Youngt 404 F.3d at 28.

27

Case: 09-2386 Document: 00116004296 Page: 97 Date Filed: 01/19/2010 Entry ID: 5409683 Case 1:08-cv-00123-S-DLM Document 35 Filed 09/11/2009 Page 28 of 28
ilaintiffs' claim for municipal liability is based on a failure to train and fails for the same reasons their claims for supervisory liability fail. Even if a constitutional violation occurred, Plaintiffs offer no evidence of a policy, custom, practice or of any deliberate indifference on the part of the Town. Moreover, nothing Plaintiffs point to bears the requisite causal relationship to the alleged constitutional deprivation to establish
",
liability. Accordingly, summary judgment will enter for the Town on Plaintiffs' claims of municipality liability. IV. Conclusion
For all of the foregoing reasons I Defendants I Motion for
Summary Judgment is hereby GRANTED, and judgment shall enter for
, the Defendants i IT IS SO ORDERED.
William E. Smith
I U. S. District Judge
Date , . , / ,
28

Case: 09-2386 Document: 00116004296 Page: 98 Date Filed: 01/19/2010 Entry ID: 5409683
CERTIFICATE OF FILING AND SERVICE I, Robyn Cocho, hereby certify pursuant to Fed. R. App. P. 25(d) that, on January 19, 2010, the foregoing Brief for Plaintiffs-Appellants was filed through the CM/ECF system and served electronically on the individual listed below:
Karen K. Corcoran Marc DeSisto DeSisto Law 211 Angel Street P.O. Box 2563 Providence, RI 02906
/s/ Robyn Cocho Robyn Cocho

 
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Case: 09-2386 Document: 00116021669 Page: 4 Date Filed: 02/22/2010 Entry ID: 5419518
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Case: 09-2386 Document: 00116021669 Page: 5 Date Filed: 02/22/2010 Entry ID: 5419518 !
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Case: 09-2386 Document: 00116021669 Page: 6 Date Filed: 02/22/2010 Entry ID: 5419518 !
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Case: 09-2386 Document: 00116021669 Page: 7 Date Filed: 02/22/2010 Entry ID: 5419518 !
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Case: 09-2386 Document: 00116021669 Page: 8 Date Filed: 02/22/2010 Entry ID: 5419518 !
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Case: 09-2386 Document: 00116021669 Page: 9 Date Filed: 02/22/2010 Entry ID: 5419518 !
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!

"

Case: 09-2386 Document: 00116021669 Page: 10 Date Filed: 02/22/2010 Entry ID: 5419518 !
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!

"

Case: 09-2386 Document: 00116021669 Page: 11 Date Filed: 02/22/2010 Entry ID: 5419518 !
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

!

"#

Case: 09-2386 Document: 00116021669 Page: 12 Date Filed: 02/22/2010 Entry ID: 5419518 !
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""

Case: 09-2386 Document: 00116021669 Page: 13 Date Filed: 02/22/2010 Entry ID: 5419518 !

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Case: 09-2386 Document: 00116021669 Page: 14 Date Filed: 02/22/2010 Entry ID: 5419518 !
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Case: 09-2386 Document: 00116021669 Page: 15 Date Filed: 02/22/2010 Entry ID: 5419518 !
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Case: 09-2386 Document: 00116021669 Page: 16 Date Filed: 02/22/2010 Entry ID: 5419518 !

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!

"#

Case: 09-2386 Document: 00116021669 Page: 17 Date Filed: 02/22/2010 Entry ID: 5419518 !
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!

"#

Case: 09-2386 Document: 00116021669 Page: 18 Date Filed: 02/22/2010 Entry ID: 5419518 !
$%&'()!*+,!-./!%0!123!4'5('5$!('5!$%&'(!4*1!6785*$89!51(*:8%1'5,6!*(!('5!(%;5!20!('5! ,505+,*+(61!*885&5,!<%28*(%2+=>!!"#$%&"$%'()'*%&+"&,-.'/01'*)2$'302.'304'56-+'789)' 3::4;)?!!@'5!1572+,!1(5A!'*1!(42!*1A57(1B!-"/!>('5!78*$%(9!20!('5!8*4!*(!('5!(%;5!20!
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!

"#

Case: 09-2386 Document: 00116021669 Page: 19 Date Filed: 02/22/2010 Entry ID: 5419518 !
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!

"#

Case: 09-2386 Document: 00116021669 Page: 20 Date Filed: 02/22/2010 Entry ID: 5419518 !
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!

"#

Case: 09-2386 Document: 00116021669 Page: 21 Date Filed: 02/22/2010 Entry ID: 5419518 !
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!

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Case: 09-2386 Document: 00116021669 Page: 22 Date Filed: 02/22/2010 Entry ID: 5419518 !
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Case: 09-2386 Document: 00116021669 Page: 23 Date Filed: 02/22/2010 Entry ID: 5419518 !

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Case: 09-2386 Document: 00116021669 Page: 24 Date Filed: 02/22/2010 Entry ID: 5419518 !
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Case: 09-2386 Document: 00116021669 Page: 25 Date Filed: 02/22/2010 Entry ID: 5419518 !

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Case: 09-2386 Document: 00116021669 Page: 26 Date Filed: 02/22/2010 Entry ID: 5419518 !

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Case: 09-2386 Document: 00116021669 Page: 27 Date Filed: 02/22/2010 Entry ID: 5419518 !
$%&'()*!&(!$+(,)&!&(!$)!')-.')/0+0)&!()!*,%1!$!%20$.23!0*&$42'*105!.'/1&6!!7-!&10! %2$'+05!.'/1&!8$*!)(&!*(!%20$.23!0*&$42'*105!*,%1!&(!9,&!$!.0$*()$420!(--'%0.!()! )(&'%0!&1$&!1'*:10.!$%&'()*!;'(2$&05!&1$&!.'/1&<!&10!(--'%0.!'*!0)&'&205!&(!=,$2'-'05! '++,)'&3!.0/$.520**!(-!810&10.!&1'.5!9$.&'0*<!')!&10!-,&,.0<!+$3!+'*')&0.9.0&!&10! 8.'&&0)!50%'*'()6!
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Case: 09-2386 Document: 00116021669 Page: 28 Date Filed: 02/22/2010 Entry ID: 5419518 !

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Case: 09-2386 Document: 00116021669 Page: 29 Date Filed: 02/22/2010 Entry ID: 5419518 !
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Case: 09-2386 Document: 00116021669 Page: 30 Date Filed: 02/22/2010 Entry ID: 5419518 !

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Case: 09-2386 Document: 00116021669 Page: 31 Date Filed: 02/22/2010 Entry ID: 5419518 !
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Case: 09-2386 Document: 00116021669 Page: 32 Date Filed: 02/22/2010 Entry ID: 5419518 !
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Case: 09-2386 Document: 00116021669 Page: 33 Date Filed: 02/22/2010 Entry ID: 5419518 !
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Case: 09-2386 Document: 00116021669 Page: 34 Date Filed: 02/22/2010 Entry ID: 5419518 !

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Case: 09-2386 Document: 00116021669 Page: 35 Date Filed: 02/22/2010 Entry ID: 5419518 !
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Case: 09-2386 Document: 00116021669 Page: 36 Date Filed: 02/22/2010 Entry ID: 5419518 !

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Case: 09-2386 Document: 00116021669 Page: 37 Date Filed: 02/22/2010 Entry ID: 5419518 !
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Case: 09-2386 Document: 00116021669 Page: 38 Date Filed: 02/22/2010 Entry ID: 5419518 !
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Case: 09-2386 Document: 00116021669 Page: 39 Date Filed: 02/22/2010 Entry ID: 5419518 !

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Case: 09-2386 Document: 00116021669 Page: 40 Date Filed: 02/22/2010 Entry ID: 5419518 !
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Case: 09-2386 Document: 00116021669 Page: 41 Date Filed: 02/22/2010 Entry ID: 5419518 !
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Case: 09-2386 Document: 00116021669 Page: 42 Date Filed: 02/22/2010 Entry ID: 5419518 !
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Case: 09-2386 Document: 00116021669 Page: 43 Date Filed: 02/22/2010 Entry ID: 5419518 !
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Case: 09-2386 Document: 00116021669 Page: 44 Date Filed: 02/22/2010 Entry ID: 5419518 !
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Case: 09-2386 Document: 00116021669 Page: 45 Date Filed: 02/22/2010 Entry ID: 5419518 !
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Case: 09-2386 Document: 00116021669 Page: 46 Date Filed: 02/22/2010 Entry ID: 5419518 !
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 Case: 09-2386 Document: 00116047762 Page: 1 Date Filed: 04/12/2010 Entry ID: 5436503
United States Court of Appeals
for the
First Circuit
09-2386
JUAN LOPERA; MARLON GIRALDO; MAURICIO ESPINAL; HECTOR CARDONA; RANDY GIRALDO; STEVEN GIRALDO;
WILLIAM RUIZ; PEDRO HERNANDEZ; L.E.A.-L., by and through his parents and next friends, Luis Ardila and Hziel Ardila; B.O., by and through his parent and next friend,
Alba Jaramillo; S.P., by and through his parent and next friend, Lilian Giraldo; J.S., by and through his parents and next friends,
Youlder Salazar and Martha Duran; M.R., by and through his parents and next friends, Milton Ricuarte, Sr. and Elizabeth Rivera,
Plaintiffs-Appellants, v.
TOWN OF COVENTRY, by and through its Treasurer, Warren West; KEVIN P. HARRIS, in his individual capacity and in his capacity as a police officer for the Town of Coventry; KEVIN KENNEDY, in his individual capacity and in his capacity as a police officer for the Town of Coventry; DAVID NELSON, in his individual capacity and in his capacity as a police officer for the Town of Coventry; STEPHEN A.
MICHAILIDES, in his individual capacity and in his capacity as a police officer for the Town of Coventry; BRIAN O'ROURKE,
individually and in his capacity as the former Chief of Police for the Town of Coventry; RONALD E. DASILVA, individually and in his
capacity as Chief of Police for the Town of Coventry, Defendants-Appellees.
_____________________________ On Appeal from the United States District Court of Rhode Island, Providence
REPLY BRIEF FOR PLAINTIFFS-APPELLANTS
VICKI J. BEJMA, ESQUIRE STEPHEN M. ROBINSON, ESQUIRE ROBINSON & CLAPHAM 155 South Main Street, Suite 402 Providence, Rhode Island 02903 (401) 331-6565
Attorneys for Plaintiffs-Appellants

Case: 09-2386 Document: 00116047762 Page: 2 Date Filed: 04/12/2010 Entry ID: 5436503
TABLE OF CONTENTS
TABLE OF AUTHORITIES ............................................................................... ii
I. INTRODUCTION........................................................................................ 1
II. ARGUMENT ............................................................................................... 5
A. THIS COURT SHOULD DETERMINE THE UNDERLYING QUESTION OF WHETHER AN OUTSIDE LAW ENFORCEMENT OFFICERMAY RELY SOLELY UPON THE CONSENT OF PUBLIC SCHOOL OFFICIALS TO PERFORM A SEARCH OF A STUDENT .................................................................................................... 5
B. THE APPELLEES SHOULD NOT HAVE BEEN GRANTED QUALIFIED IMMUNITY BECAUSE THE ESTABLISHED CASE LAW CLEARLY DEMONSTRATED THAT COACH MARCHAND COULD NOT CONSENT TO A SUSPICIONLESS SEARCH BY OUTSIDE LAW ENFORCEMENT.....................................10
1. The Established Case Law Restricts the In Loco Parentis Authority of Public School Officials to Those Matters Reasonably Related to the Students’ Education and the Operation of the Schools, and This Suspicionless Search Did Not Involve Either ............11
2. Because the Established Case Law Removed Public School Officials’ In Loco Parentis Authority from Public School Officials for the Purposes of Investigating Student Wrongdoing, and Held Them to a “Reasonable Suspicion” Standard, It Cannot Be Held that Coach Marchand Had the Authority to Consent to a Suspicionless Search by Outside Law Enforcment.................................17
C. SUFFICIENT EVIDENCE EXISTED ON THE RECORD TO CREATE A MATERIAL ISSUE OF FACT AS TO WHETHER THE COVENTRY POLICE ACTED OUT OF RACIAL ANIMUS ...................26
III. CONCLUSION .............................................................................................30
i

Case: 09-2386 Document: 00116047762 Page: 3 Date Filed: 04/12/2010 Entry ID: 5436503
TABLE OF AUTHORITIES
United States Supreme Court Cases
Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls,
536 U.S. 822, 122 S.Ct. 2559, 153 L.Ed.2d 735(2002) ..................... 20, 21
Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967) .............................. 19
Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975) ................................ 20
New Jersey v. T.L.O., 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985) ......... 3, 10, 18-23, 25
Pearson v. Callahan, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) .................................................. 5-7
Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) ........................ 5, 6
Tinker v. Des Moines Ind. Community Sch. Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969) ................................ 20
Vernonia School District v. Acton, 515 U.S. 646, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995) .................... 20, 21
Washington v. Davis, 426 S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976) .................................. 26
Federal Circuit Court of Appeals Cases
Bergeron v. Cabral, 560 F.3d 1 (2009) ................................................................................. 6, 8
Buchanan v. Maine, 469 F.3d 158 (1st Cir. 2006) ...................................................................... 6
ii

Case: 09-2386 Document: 00116047762 Page: 4 Date Filed: 04/12/2010 Entry ID: 5436503
Gruenke v. Seip, 225 F.3d 290 (3rd Cir. 2000) .............................................................. 16, 22
Hampton v. Oktibbeha County Sheriff Dept., 480 F.3d 358 (5th Cir. 2007) ............................................................... 13-16
Hasenfus v. LaJeunesse, 175 F.3d 68 (1st Cir. 1999) ...................................................................... 15
Maldonado v. Fontanes, 568 F.3d 263 (1st Cir. 2009) ...................................................................... 6
Morelli v. Webster, 552 F.3d 12 (1st Cir. 2009) ..................................................................... 28
Wojcik v. Town of North Smithfield, 76 F.3d 1 (1st Cir. 1996) ............................................................... 12-13, 16
Federal District Court Cases Hampton v. Oktibbeha County Sheriff’s Department,
2006 WL 270258 (N.D. Miss.) ................................................................ 15 Picha v. Wielgos,
410 F.Supp. 1214 (N.D. Ill. 1976) ........................................................... 24 Rhodes v. Guarricino,
54 F.Supp.2d 186 (S.D.N.Y. 1999) ......................................................... 22
Other State Court Cases Doe v. Cedar Rapids Community Sch. Dist.,
652 N.W.2d 439 (Iowa 2002) .................................................................. 15 Edson v. Barre Supervisory Union No. 61,
182 Vt. 157 A.2d 200 (2007) .................................................................. 13
iii

Case: 09-2386 Document: 00116047762 Page: 5 Date Filed: 04/12/2010 Entry ID: 5436503
F.P. v. State, 528 So.2d 1253 (Fla. App. 1 Dist. 1988) ............................................. 9, 25
Haney v. Bradley County Bd. of Educ., 160 S.W.3d 886 (Tenn.App. 2005) ......................................................... 15
M.J. v. State, 399 So.2d 996 (Fla.App. 1981) ........................................................... 9, 25
Snider v. Snider, 855 S.W.2d 588 (Tenn.App. 1993) ......................................................... 15
State v. Tywane H., 123 N.M. 42, 933 P.2d 251, (N.M. App. 1997) ................................... 9, 25
In the Interest of Thomas B.D., 326 S.C. 614, 486 S.E.2d 498 (S.C. App. 1997) .................................. 9, 25
Versprill v. Sch. Bd. of Orange County, 641 So.2d 883 (Fla. App. 1994) .............................................................. 15
Waters v. United States, 311 A.2d 835 (D.C. App. 1973) .......................................................... 9, 25
United States Constitution United States Constitution, Fourth Amendment .......................................... passim
United States Code 42 U.S.C. § 1983...................................................................................... 2, 13, 14
iv

Case: 09-2386 Document: 00116047762 Page: 6 Date Filed: 04/12/2010 Entry ID: 5436503
I. INTRODUCTION The Appellants file this Reply Brief in response to several of the arguments
advanced by the Appellees in support of affirming the judgment of the District Court. As they had done below, the Appellees urge that qualified immunity should attach with respect to the claims involving the search because, in their view, there was a lack of clarity in the law on the point of whether Coach Marchand could have given a valid consent to that search. At this level, the Appellees add that the District Court acted well within its discretion when declining to determine whether, as a matter of law, Coach Marchand, a public school official, possessed that authority. The Appellees also argue that summary judgment of Appellants’ claims of racial discrimination was warranted because there was no evidence on the record to support the claim that the Coventry Police officers singled out the Appellants for a public search based upon their race.
The Appellees’ argument that the District Court’s ruling should remain wholly undisturbed is untenable. The very existence of that decision creates a substantial risk that public school students may suffer diminished Fourth Amendment protections. The Appellees offer no discernable reason why this Court should decline to rule on the question of whether a public school official, as a matter of law, possesses the authority to waive his or her students’ Fourth Amendment right to refuse suspicionless searches from outside police officers.
1

Case: 09-2386 Document: 00116047762 Page: 7 Date Filed: 04/12/2010 Entry ID: 5436503
Without a firm decision on this issue, the legal reality is that public school students’ Fourth Amendment rights with respect to outside police officers can and likely will be surrendered upon the unconstrained whim of their teachers, and that those students will be left without a remedy. If that student attempts to vindicate his rights later through a § 1983 claim, the District Court’s decision can and will be cited in support of a qualified immunity defense, and the offending officers will escape liability. This process will repeat itself until this issue is definitively resolved.
Furthermore, an examination of the issue of Coach Marchand’s authority is germane to the purposes of this instant dispute. An actual examination of this question quickly reveals the inherent unreasonableness of the Appellees’ plea for qualified immunity. First, the Appellees failed to respond to the case law clearly demonstrating that where student searches are concerned, outside law enforcement officials are held to the same “probable cause” standard that would have applied outside of school. That case law never countenanced the elimination of the “probable cause” standard simply because a youth happened to be in the custody of public school officials at the time the police wished to perform a search.
Second, the Appellees’ argument suggests that Coach Marchand possessed an unbridled in loco parentis authority that allowed him to consent to outside law enforcement searches. That position garishly clashes with settled law. Appellees
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offer no authority demonstrating that a public school officials’ authority over their students ever extended to the point where they were permitted to waive their students’ Constitutional rights. Even more significantly, the Appellees fail to overcome the U.S. Supreme Court’s specific holdings in New Jersey v. T.L.O., 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985). That decision confirmed that public school officials did not have in loco parentis authority with respect to searches, but were instead state actors held to the Fourth Amendment. The Appellees also fail to overcome T.L.O.’s specific holding that public school officials are not permitted to search students for disciplinary purposes without reasonable suspicion that the student has broken the law or school rules.
When one takes these clear legal standards into account, it becomes immediately apparent that the Appellees wish this Court to allow a logically flawed view of the law to prevail. It is undisputed that neither probable cause nor reasonable suspicion of the boys ever existed for either Coach Marchand or the Coventry Police. The Coventry Police therefore could not conduct the search. Coach Marchand, without the requisite reasonable suspicion to conduct a search of his students, was similarly forbidden to conduct a search of the boys. Nevertheless, the Appellees suggest that Coach Marchand could somehow magically confer upon outside law enforcement officers the ability to conduct a search forbidden to both himself and the Coventry Police. Appellees ask that this
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Court accept that a reasonable police officer could believe that Coach Marchand could so expand their authority in this way. The Appellees, in other words, ask that a patently unreasonable legal argument grant them qualified immunity.
The Appellees similarly offer an implausible argument with respect to the racial discrimination claims. The Appellees offer no credible reasons for the differential treatment between the Hispanic students of Central Falls, and their white Coventry counterparts. The Appellees accept that the Coventry Police could be found liable had they singled out the Central Falls students for the pleasure of the racist mob surrounding the bus that day. However, the Appellees then attempt to escape liability by asking this Court to make factual findings on the point of the Coventry Police’s motives. This Court of course, does not make such factual findings.
In short, the Appellees offer little justification for the position that the District Court’s decision should be left utterly untouched. At very least, this Court can and should resolve the underlying Fourth Amendment question. Once that question is resolved, the qualified immunity defense collapses because the Appellees’ position regarding in loco parentis is hopelessly outdated. Furthermore, the Appellees cannot overcome the evidence creating a triable issue with respect to the discrimination claims. Accordingly, this Court should reverse the District Court’s decision.
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II. ARGUMENT A. THIS COURT SHOULD DETERMINE THE UNDERLYING QUESTION OF WHETHER AN OUTSIDE LAW ENFORCEMENT OFFICER MAY RELY SOLELY UPON THE CONSENT OF PUBLIC SCHOOL OFFICIALS TO PERFORM A SEARCH OF A STUDENT. The Appellees devote a substantial amount of their brief supporting the
District Court’s declining to determine the underlying Constitutional question in this case: whether an outside law enforcement officer may rely upon the consent of a public school official to perform a search. The Appellees’ reluctance to have this question fully illuminated is puzzling, to say the least. More to the point, the failure to address this question risks the evisceration of public school students’ Fourth Amendment rights.
The District Court , when declining to decide this question, relied upon the recent case of Pearson v. Callahan, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). Before Pearson, the U.S. Supreme Court in Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) had mandated a two-step analysis of qualified immunity issues. Saucier had required that when analyzing a claim of qualified immunity, courts must first determine whether the facts alleged supported a claim that a Constitutional right had been violated. Id. at 201. The court would then
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determine whether the law clearly established that the defendant’s conduct was violative of the Constitution.1 Id.
On re-visitation of the Saucier test, the Pearson Court held that the two-step approach was not always warranted. Pearson noted that in some cases, a two-step analysis was a waste of time because the underlying factual allegations made it apparent that there could have been no Constitutional violation. In such instances, an analysis of the “clearly established prong” obviously served no purpose. Id. at 818. The Pearson Court also observed that there would be instances in which the facts were not sufficiently developed, and therefore the Court would be unable to provide any meaningful Constitutional precedent. Id. at 819, quoting Buchanan v. Maine, 469 F.3d 158, 168 (1st Cir. 2006). The Pearson Court identified other instances in which analysis of the underlying Constitutional question would be of little or no utility, such as when a higher court was poised to decide the point, or when the Constitutional question hinged on the interpretation of a state law, or even when the briefing of the case had poorly illuminated the Constitutional questions. Id. at 819-20. The Pearson Court also held that the two-step analysis
1 Previously, this Court had added a third prong, that is, whether it would have been clear to an objectively reasonable official, situated similarly to that official, that his actions violated the clearly established right. Bergeron v. Cabral, 560 F.3d 1, 12-13 (1st Cir. 2009). More recently, since Pearson, this Court has abandoned the third step. Maldonado v. Fontanes, 568 F.3d 263 (1st Cir. 2009).
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ran afoul of the long-established rule of avoiding Constitutional questions where a case could be decided upon other grounds. Id. at 821.
Nevertheless, the Pearson Court continued to recognize that there were many instances in which the Saucier two-step analysis remained a valuable endeavor. The Pearson Court was careful to point out that the Saucier Court “. . . was certainly correct in noting that the two-step procedure promotes the development of constitutional precedent and is especially valuable with respect to questions that do not frequently arise in cases in which a qualified immunity defense is unavailable.” Id. at 818. The Pearson Court also emphasized that there was nothing preventing the lower courts from following the Saucier procedure where it was worthwhile. Id. at 822.
The instant case presents none of the circumstances in which the Pearson Court had deemed determination of the Constitutional question to be unfruitful or inadvisable. The facts are sufficiently developed with respect to this particular question. We are presented with none of the more intensely factually-driven questions that generally accompany cases involving apparent authority to consent to a search. It is not disputed that Coach Marchand was a public school official. We are thus faced with two very basic questions of law: 1) whether Coach Marchand, a public school official, did as a matter of law have the authority to
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consent to a search of his students; and 2) whether the law on his authority -- or lack of that authority -- was clearly established as of the date of the search.
This Court reviews the District Court’s grant of qualified immunity on summary judgment de novo. Bergeron v. Cabral, 560 F.3d 1 (1st Cir. 2009.) Accordingly, this Court has the ability to determine the underlying Constitutional question of Coach Marchand’s authority despite the District Court’s declining to do so. Furthermore, resolution of this specific Constitutional question regarding Coach Marchand’s authority is highly desirable, in that it presents the opportunity for public school officials and law enforcement officials alike to gain a full comprehension of the limits of public school official authority under the Constitution. This is not an opportunity which this Court should pass up lightly, given the substantial public interest in this matter. Young people, after all, spend a substantial amount of their waking hours in the custody of public school officials. The amount of time spent in school custody renders it virtually inevitable that another youthful citizen will find himself in a situation in which his teacher is being prevailed upon to surrender his Constitutional rights.
Further weighing in favor of deciding this question is the disturbance in the law created by the District Court’s decision. Before this decision, it had been wellestablished that where outside law enforcement officers were concerned, public school students continued to possess the same Fourth Amendment protections that
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they had enjoyed outside of school, that is, they were free from such searches in absence of probable cause. See State v. Tywane H., 123 N.M. 42, 46, 933 P.2d 251, 255 (N.M. App. 1997); M.J. v. State, 399 So.2d 996, 998 (Fla.App. 1981); Waters v. United States, 311 A.2d 835, 837-38 (D.C. App. 1973); In the Interest of Thomas B.D., 326 S.C. 614, 629, 486 S.E.2d 498, 505-06 (S.C. App. 1997); F.P. v. State, 528 So.2d 1253, 1254 (Fla. App. 1 Dist. 1988). Prior to this time, there had never been any valid case law positing that their enjoyment of that right was dependent upon the will of other state actors, specifically, their teachers. With the District Court’s decision, there is now case law that suggests that there is at least some lack of clarity on the point of whether a public school teacher may waive a student’s Fourth Amendment rights. Other officers are now free to engage in the same conduct as the Coventry officers – and then point to the District Court’s decision to support a qualified immunity defense and escape accountability for incursions upon the rights of students.
Determining the underlying question of Coach Marchand’s authority, then, is far from an unproductive use of this Court’s time. There may be some time before this issue is presented to this Court again. In the interim, the District Court’s failure to resolve the issue of Coach Marchand’s authority created a real risk that public school students’ Fourth Amendment rights will be substantially
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impaired, and that there will be no remedy for them. The opportunity to resolve this issue should be taken now.
B. THE APPELLEES SHOULD NOT HAVE BEEN GRANTED QUALIFIED IMMUNITY BECAUSE THE ESTABLISHED CASE LAW CLEARLY DEMONSTRATED THAT COACH MARCHAND COULD NOT CONSENT TO A SUSPICIONLESS SEARCH BY OUTSIDE LAW ENFORCEMENT.
The Appellees strenuously argue that they should be granted qualified immunity because the law was not sufficiently clear on whether or not the Coventry Police could have reasonably relied upon the consent of Coach Marchand to conduct the search of the students. Appellees hew to the argument that Coach Marchand possessed some residual in loco parentis authority that, at very least, would give a reasonable officer the impression that Coach Marchand possessed the same right to consent to a suspicionless search that the students’ parents would have possessed. This view of the law is completely without merit, and is fundamentally flawed. As such, no qualified immunity should have been granted. First, the case law, particularly T.L.O., makes it very clear that in loco parentis authority to consent to police searches no longer exists – if indeed a public school official’s authority ever did extend to that point. Second, the Appellees also fail to show any case law undermining the basic proposition that outside law enforcement officials have always been held to the same “probable cause” standard that would have applied if they encountered the students outside of school.
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Additionally, an examination of the Appellees’ position demonstrates its fundamental unreasonableness. Essentially, the Appellees ask this Court to consider that a public school teacher possesses an unrestrained authority to give away a student’s Constitutional rights to a law enforcement official. The notion that a state actor possesses the authority to waive a citizen’s Fourth Amendment rights is unprecedented, and threatens the very existence of the Fourth Amendment right. As such, the Appellees’ position is inherently unreasonable. For that reason, it does not merit the grant of qualified immunity.
1. The Established Case Law Restricts the In Loco Parentis Authority of Public School Officials to Those Matters Reasonably Related to the Students’ Education and the Operation of the Schools, and This Suspicionless Search Did Not Involve Either.
The Appellees’ assertion of qualified immunity is legally infirm because it asks this Court to extend school officials’ in loco parentis authority well past its bounds. Even if there had been some vague in loco parentis authority clinging to Coach Marchand at the time of the search, that authority has never at any point in time had the breadth that the Appellees would claim. Appellees fail to provide any response to the substantial authority presented to this Court that plainly demonstrates that a public school official’s in loco parentis authority from its very inception has been confined to those actions which are necessary to permit the public school officials to fulfill their duties to the students and otherwise operate the schools. The act of attempting to waive a student’s Constitutional rights vis-à-
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vis an outside police officer, seeking to perform a search for purely law enforcement purposes, falls far outside of the bounds of those duties.
Additionally, the cases relied upon by the Appellees in their Brief do nothing to broaden the limits of the in loco parentis authority of public school officials. The actions described in those cases instead clearly were within that established authority. For example, in the case of Wojcik v. Town of North Smithfield, 76 F.3d 1 (1st Cir. 1996), the issue had been whether school officials had violated a fifthgrade child’s right to freedom from unreasonable seizure under the Fourth Amendment when they transported the child from one school to another, over her apparent reluctance. Id. at 3. The school officials had done so because an investigator from the State of Rhode Island’s Department of Children and Youth needed to speak to the child about allegations that she was suffering physical abuse at home. Id. The school officials felt that the child would be more comfortable discussing the matter in the presence of her sister, who was at another school in the district. Id. This Court did find that there was no unreasonable seizure in that instance, and thus rejected the action on both Fourth Amendment and qualified immunity grounds. Id.
This Court noted that it was not unreasonable for the school, acting in loco parentis, to transport the child in this instance. Id. This Court did not fully explain the application of the in loco parentis doctrine and the extent of its breadth and
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scope. However, it is significant that in Wojcik, there was absolutely no suggestion that the school officials were attempting to investigate any allegation of wrongdoing on the part of the student or to facilitate such an investigation on the part of a law enforcement agency. Instead, the school officials were acting in furtherance of an investigation of possible child abuse.
That action could reasonably be construed so to fall within the traditional bounds of the in loco parentis doctrine. The in loco parentis doctrine certainly extends to taking reasonable steps to ensure the physical safety of a child in one’s custody. See Edson v. Barre Supervisory Union, 182 Vt. 157, 162, 933 A.2d 200, 205 (2007). The in loco parentis doctrine could thus colorably authorize a school official to take reasonable steps to ensure that a child will not face violence when it is time for him to go home. Indeed, a public school teacher’s unique relationship with his or her charges arguably places that teacher in a better position than anybody else in the community to detect potential abuse, and ensure that appropriate action is taken.
The Appellees similarly misplace their reliance upon the case of Hampton v. Oktibbeha County Sheriff Dept., 480 F.3d 358 (5th Cir. 2007). That case involved a § 1983 claim brought by a Mississippi school administrator against various members of the local sheriff’s department. The sheriff’s department had reported to the school with an arrest warrant and demanded that the administrator produce
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one of his students. The administrator refused to do so until he was shown the warrant. Once he was able to see that the student’s name was actually on the warrant, the administrator produced the student. The sheriff’s department, in turn, arrested the administrator and charged him with obstruction of the arrest under Mississippi law. Id. at 361-62.
Although initially convicted, the administrator prevailed on appeal before the county circuit court. Id. at 362. When directing a verdict for the administrator, the county circuit judge noted that perhaps the sheriff’s office may have misconstrued Mississippi law restricting access to juvenile records, and thus believed that they could not show the warrant to the administrator. However, Mississippi law did allow a parent or guardian the right to review a warrant. Because the administrator acted in loco parentis, the court reasoned, he qualified as a “guardian.” Id. For that reason, charges were without any merit, and, as the Hampton Court ruled, could form the basis of § 1983 claim for a false arrest.
Although the Hampton case references the term in loco parentis, it is similarly unhelpful to the Appellees. Hampton in no way can be read to stretch the in loco parentis authority to allow school teachers to consent to law enforcement searches on behalf of their students. Far from waiving the student’s own rights, the administrator was fulfilling the duties that the in loco parentis doctrine imposes upon school officials. Nobody would seriously question that the in loco parentis
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doctrine includes custodial and supervisory responsibility over the students during
the school day or during school activities. See, e.g., Hasenfus v. LaJeunesse, 175 F.3d 68, 72 (1st Cir. 1999); Versprill v. Sch. Bd. of Orange County, 641 So.2d 883,
886 (Fla. App. 1994). At very least, school officials must exercise the care of
reasonable parents. A. Doe v. Cedar Rapids Community Sch. Dist., 652 N.W.2d
439, 446 (Iowa 2002). The established bounds of a school official’s in loco
parentis authority thus inherently include the duty to exercise some level of care in
examining the bona fides of an individual asking that school officials yield custody
to them – whether those making the request are police officers or otherwise:
. . . common sense dictates that schools are the protectors of students during school hours. The school must be careful with whom they allow students to leave their custody. In most public schools, a parent is required to sign a document to take custody of their children from school officials. . . . Therefore, the Court finds that the average person and especially police officers should know that documentation will be required to extract a student from school custody. The Court also finds that since the school acts in loco parentis, then a senior school official, such as the Plaintiff, can request to see a warrant before releasing a student to law enforcement officials.
See Hampton v. Oktibbeha County Sheriffs Department, 2006 WL 270258 (N.D.
Miss.) (overturned on other grounds). See also Haney v. Bradley County Bd. of
Educ., 160 S.W.3d 886 (Tenn.App. 2005) (finding that duty to exercise reasonable
care for student’s safety entailed duty to read even a parent’s explanation for
signing out children). But see Snider v. Snider, 855 S.W.2d 588 (Tenn.App. 1993)
(holding school not liable where uncle signed ill child out of school and
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subsequently raped her, despite violation of school policy that children not be released early without parent’s permission). As such, the traditional bounds of the in loco parentis doctrine would certainly include verifying a police officer’s authority to remove the child from school.
Wojcik and Hampton, then, involved the school officials’ fulfillment of their duties to the student, specifically, those of providing for the reasonable safety and security of their students. In other words, the very cases cited by the Appellees do nothing more than to underscore the position stated in our initial Brief -- that the in loco parentis doctrine works to the extent that the school officials need to fulfill their educational duties. However, as the cases cited by the Appellees also demonstrate, the in loco parentis doctrine has not extended to public school officials who undertake searches to fulfill some interest of their own, outside of their duties. See especially Gruenke v. Seip, 225 F.3d 290, 302 (3d Cir. 2000) (holding that actions of public school swim coach in requiring team member to undergo pregnancy test outside the bounds of his duties). Most notably, the Appellees cite to no cases which permit the exercise of an in loco parentis authority to fulfill the agenda of third parties for their own purposes.
The instant case clearly falls into the category of cases in which the school official acted beyond what was necessary to fulfill his educational duties. The instant case involves a school official who purportedly waived his students’
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Constitutional rights to decline to consent to a search by outside law enforcement officials. That school official’s action fulfilled absolutely no interest of the students that could warrant the exercise of the in loco parentis authority by a school official. There was no disciplinary or tutelary purpose to the police search, because Coach Marchand had already satisfied himself that the boys had done nothing wrong. (App. 58, 23:4-8.) The search in no way contributed to the boys’ well-being or safety. That goal could have been fulfilled by simply asking that the police disperse the crowd and allow the bus to be on its way – as was the students’ right. Instead, the consent fulfilled only the agenda of third parties, the Coventry Police.
As such, Coach Marchand’s actions in authorizing the search exceeded the bounds of the in loco parentis doctrine, as illustrated in the cases upon which the Appellees place heavy reliance. The Appellees have produced no cases that even suggest that Coach Marchand’s in loco parentis authority ever extended to waivers of his students’ Constitutional rights. On that basis alone, their legal argument fails.
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2. Because the Established Case Law Removed Public School Officials’ In Loco Parentis Authority from Public School Officials for the Purposes of Investigating Student Wrongdoing, and Held Them to a “Reasonable Suspicion” Standard, It Cannot Be Held that Coach Marchand Had the Authority to Consent to a Suspicionless Search by Outside Law Enforcement.
The Appellees’ brief also fails to explain away one crucial point: the fact that the case of T.L.O. unequivocally affirmed that public school officials do not have in loco parentis authority with respect to student searches. Instead, T.L.O. made it exquisitely clear that public school officials are state actors whose authority is limited by the Constitution, including the Fourth Amendment. Id. at 336. Once that point is acknowledged, qualified immunity could not attach because there is no reasonable way for the case law to be interpreted so as to give Coach Marchand authority to the police to conduct searches of his students, especially in the absence of even reasonable suspicion. Furthermore, T.L.O.’s strictures on Coach Marchand’s authority have not been disturbed by later case law.
T.L.O. explicitly stated that for the purposes of the Fourth Amendment, Coach Marchand did not stand in the place of the students’ parents. Id. For that reason, the Appellees cannot claim, as a matter of law, that he possessed in loco parentis authority to conduct a search. Because T.L.O. was extremely clear on that point, a police officer could not claim a reasonable reliance upon that purported authority.
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The Appellees attempt to escape the natural consequences of the T.L.O. case by attempting to suggest that later cases somehow undermined T.L.O. This claim is simply false. It is true, as Appellees claim, that the disciplinary and educational responsibilities possessed by public school officials are factored into an analysis of the reasonableness of a particular search by school officials. That factoring certainly took place in the T.L.O decision itself.
The T.L.O. case dealt with the issue of whether a school official could search a student’s belongings in order to investigate a suspected violation of school rules. Id. 328. When determining the circumstances under which school officials could perform such a search, the T.L.O. Court applied the classic “balancing” test, that is, it balanced the need to search against the nature of the intrusion. Id. at 337, citing Camara v. Municipal Court, 387 U.S. 523, 528, 87 S.Ct. 1727, 1730, 18 L.Ed.2d 930 (1967). The T.L.O. Court recognized that a search of a student and his possessions was a substantial intrusion upon that student’s legitimate privacy interests. Id. at 339. At the same time, the T.L.O. Court also recognized that school officials had a substantial degree of interest in maintaining order and discipline in the schools, and in being able to deal with misconduct quickly. Id. at 340-41. Therefore, the T.L.O. Court did not require school officials to obtain a warrant, nor did it require a finding of probable cause. The T.L.O. Court instead determined that the “reasonable suspicion” standard would balance both the
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interests of students and public school officials: “This standard will, we trust, neither unduly burden the efforts of school authorities to maintain order in their schools nor authorize unrestrained intrusions upon the privacy of schoolchildren.” Id. at 342-43.
Under T.L.O., then, the responsibilities that the school officials had with respect to their students defined the precise contours of the Fourth Amendment rights that students possessed vis-à-vis school officials. However, T.L.O. made it very clear that students were not in the thrall of their teachers with respect to the Fourth Amendment. T.L.O. even reinforced the premise that had guided the preceding line of cases involving student rights with respect to other Constitutional rights, that is, that public school students possessed Constitutional rights that were not shed at the schoolhouse door. Id. at 336, citing Tinker v. Des Moines Ind. Community Sch. Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969); Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975).
Furthermore, contrary to the position of the Appellees, the cases of Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995) and Bd. of Educ. of Indep. Sch. Dist. No 92 of Pottawatome Cty. v. Earls, 536 U.S. 822, 122 S.Ct. 2559, 153 L.Ed.2d 735 (2000) did not, and were never intended to, overturn T.L.O.’ s holdings or otherwise reinstate an in loco parentis regime. Instead, the Vernonia and Earls case applied virtually the same analysis as did the
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T.L.O. case. These cases dealt with random, suspicionless drug tests of students engaging in athletics and extracurricular activities. The Court again balanced the privacy interests against the interest in the search. Vernonia and Earls did reference the term in loco parentis when discussing the school officials’ responsibilities towards their students, and the consequent need to ensure their safety, particularly when those students engage in potentially hazardous activities for which an unimpaired head is needed. Vernonia, at 661-63; Earls, at 836-838. That interest in student safety was factored into the balancing test, and held to be sufficient to justify the relatively minimal intrusion of a random drug test for students engaged in athletics and other extracurriculars. Vernonia, at 665; Earls at 838.
However, neither Vernonia nor Earls ever held that school officials were no longer deemed state actors. Furthermore, neither Vernonia nor Earls granted school officials the right to conduct random searches to find evidence of student wrongdoing for disciplinary or law enforcement purposes. In both cases, it was noted as a mark in favor of permitting the tests that the students who failed received no discipline, nor were the tests results revealed to law enforcement. Vernonia,at 658; Earls, at 833-34. T.L.O. thus remained undisturbed where investigations of student wrongdoing were at issue.
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Moreover, not a single lower court case cited by the Appellees even remotely suggests that any court in this nation is contemplating a retreat from the principles of T.L.O. The Appellees cite to no case that signifies a retreat from the principle that for Fourth Amendment purposes, public school officials lack in loco parentis authority, but are government actors whose actions are Constitutionally restricted. Instead, the lower court cases cited by the Appellees that deal with student searches reiterate and apply T.L.O.’s basic holdings. Those cases continue to hold that a public school official is a state actor with respect to the Fourth Amendment. Gruenke, at 300; Rhodes v. Guarricino, 54 F.Supp.2d 186 (S.D.N.Y. 1999). They also continue to hold that although students are not granted the full panoply of Fourth Amendment rights with respect to their teachers, neither do their teachers have the unbridled right to search where it is not necessary to fulfill any tutelary, disciplinary, or custodial responsibility. Gruenke, at 302. Teachers are still held to a “reasonable suspicion” standard when undertaking searches to investigate wrongdoing for disciplinary purposes. Rhodes, at 189.
We thus come to the inherent problems with the Appellees’ plea for qualified immunity. The Appellees fail to address the basic flaws of their argument that Coach Marchand could reasonably be understood as a substitute parent who could give the Coventry Police permission to perform a search. This argument fails in part because T.L.O. explicitly held that where the Fourth
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Amendment was concerned, Coach Marchand was not a substitute parent to the boys. The Appellees produce no case law to the contrary.
The Appellees’ argument also fails because it is logically flawed. Under T.L.O., Coach Marchand was required to have reasonable suspicion that a student has broken school rules or the law before he could conduct a search of a student. Id., at 341-42. On its face, it defies logic to declare that Coach Marchand could give another individual permission to perform an act that he himself was plainly forbidden. However, that is the very premise that the Appellees ultimately ask this Court to accept.
Coach Marchand did not have reasonable suspicion, and the Coventry officers were aware of that lack. Many individuals other than the Central Falls players had been able to access the locker room, and both Coach Marchand and the Coventry Police knew that the boys had been watched in the locker room and therefore had no opportunity to steal. (App. 27-28, 12:7-20:2-13; App. 35, 57:18-14; App. 69-70, 69:25-70:7; App. 76, 47:4-6; App. 83, 46:2-5.) Because Coach Marchand had no reasonable suspicion, he had no authority to search the students -- and the Coventry officers were aware of the facts demonstrating that lack. Accordingly, the Appellees cannot reasonably be permitted to hide behind any consent from Coach Marchand. To declare otherwise is to declare that Coach Marchand could expand the police
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officer’s authority beyond what even he himself possessed, and it was reasonable for the police to believe that he could do so.
Further underscoring the basic unreasonableness of Appellees’ position regarding Coach Marchand’s authority is the fact that they were unable to cite to a single case that supports the position that an outside law enforcement official’s ability to initiate a search expands simply because a child is in school custody. The Appellees did not even respond to the lengthy case law demonstrating that outside law officials continue to be held to a “probable cause” standard when initiating searches of students. Appellees also made no response to the case of Picha v. Wielgos, 410 F.Supp. 1214 (N.D. Ill. 1976). That case, cited in Appellant’s principal Brief, clearly held that public school students’ Fourth Amendment rights against outside law enforcement officials were not to be diminished by that child’s presence in school – despite the school officials’ consent to that search. Id. at 1218.
The Appellees instead apparently ask this Court to accept the notion that a public school official may be construed to have the unrestrained authority to waive a student’s Fourth Amendment rights vis-à-vis outside law enforcement officials. This position is tantamount to suggesting that a public school student indeed surrenders his Constitutional rights at the schoolhouse door. The United States Supreme Court long rejected the notion that public school students stood in abject
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lack of Constitutional rights while at school. The Appellees, however, invite that very result by urging this Court to accept the argument that public school teachers may simply give away a student’s Fourth Amendment rights to an outside police officer without even reasonable suspicion.
In short, the Appellees’ interpretation of the case law regarding Coach Marchand’s authority was not only wrong, but unreasonable. The clear case law held that Coventry Police, as outside officers, would have to satisfy a “probable cause” standard if they wanted to conduct a nonconsensual search of the boys – even if they were at school. See Tywane H., 933 P.2d at 255; M.J.,, 399 So.2d at 998; Waters, 311 at 837-38; Thomas B.D., 486 S.E.2d at 505-06; F.P. , 528 So.2d at 1254. They could not look to Coach Marchand to grant them greater power to search than they would have otherwise possessed. T.L.O. had clearly stripped Coach Marchand of in loco parentis authority for Fourth Amendment purposes. Furthermore, because the Coventry Police were seeking to conduct a search with no reasonable suspicion, the Coventry Police officers were asking for authority to search that exceeded even that possessed by Coach Marchand himself. This is not a reasonable construction of the case law. Accordingly, qualified immunity cannot apply here.
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C. SUFFICIENT EVIDENCE EXISTED ON THE RECORD TO CREATE A MATERIAL ISSUE OF FACT AS TO WHETHER THE COVENTRY POLICE ACTED OUT OF RACIAL ANIMUS.
The Appellees also strenuously argue that there is no evidence on the record to demonstrate that the Coventry Police in any way acted out of any racial animus when determining to perform the search. The Appellees continue to argue that there is no evidence of any bias on behalf of the Coventry Police themselves. The Appellees also argue that there is no evidence that the Coventry Police acted so as to give effect to the racial animus of the crowd. The Appellees, however, cannot escape the great amount of evidence creating at least a triable issue of whether the Coventry Police acted out of racial bias, whether their own or that of the crowd.
The Appellees still fail to provide a single plausible explanation of why they singled out the Hispanic Central Falls students for the search, without ever demanding a search of their peers from the predominately-white Coventry. That gross disparity in treatment between individuals of different races, who are otherwise similarly situated, without any other reasonable explanation, is sufficient to support a finding of racial discrimination. Washington v. Davis, 426 U.S. 229, 242, 96 S.Ct. 2040, 2049, 48 L.Ed.2d 597 (1976).
The Appellees would have this Court believe that the differential treatment of the Central Falls students was justifiable solely because the Central Falls students had been accused of the theft when the Coventry students had not. Under
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the particular facts of this case, the mere fact of the accusation does not render the differential treatment justifiable. As set out in our principal Brief, the Coventry Police officers knew perfectly well that there was even less reason to suspect the Central Falls players than anybody else on the field that day. That included evidence that the Coventry Police knew that the boys had been watched while they were in the locker room. (App. 35, 57:18-14.) The Appellees utterly fail to address that evidence.
In addition, the Appellees try to foreclose the claim that the Coventry Police acted at the behest of a racist mob by arguing that the Coventry Police did not know of the Coventry mob’s racist animus. This argument is presented for the first time on appeal. In support of their position, they point to the testimony of the Coventry Police and Coach Marchand that they themselves heard no racist remarks. (Appellee Br., p. 44.) The Appellees also assert that Coach Marchand testified that at the time the police arrived, the crowd had not made racist remarks, and that the Coventry Police had repeatedly told the crowd to be quiet. (Appellee Br., p. 45.)
This testimony simply does not work to resolve the issue of whether or not the Coventry Police were aware of the crowd’s racist sentiments. At the summary judgment stage, the court does not attempt to resolve factual issues. All that the court does is to determine whether there is evidence on the record that would
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create a factual issue, but does not attempt to resolve it. Morelli v. Webster, 552 F.3d 12, 15 (1st Cir. 2009).
There is evidence on the record to show that the specific racial harassment continued throughout the entire event, without substantial abatement. As Coach Marchand also testified, before the police arrived, the crowd was declaring that the Central Falls players were “from the ghetto” and therefore knew how to hide things. Coach Marchand also testified to hearing the Coventry mob declare that “those people” knew how to “lie good,” and could not be trusted. (App. 58-59, 24:15-25:25.) Those themselves are racially charged statements. Even worse, Steven Giraldo, who was sitting on the bus, heard members of the crowd making racial slurs, including one woman who called the team “spics.” (App. 46, 27:1328:5.)
The police arrived at some time after that remark. However, even with police presence, the crowd continued to declare that Central Falls students were “good at hiding things, they’re sneaky you know it, search the coach.” (App. 56, 15:14-16:3.) During the search itself, Steven Giraldo testified to having repeatedly been called a “spic” by the crowd several times after he and the other players had been ordered off the bus. (App. 50, 41:13-42:5.) M.R. similarly recalled racist remarks during the search. (App. 33-34, 50:11-53:2) Furthermore, Coach Marchand’s testimony indicated that the Coventry Police took no effective action
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to stop the harassment. As Coach Marchand testified: “You know, it was one of those things where you tell the class okay you cut it out and you don’t really do anything and then two seconds later they’re talking again, you know.” (App. 56, 16:3-7; App. 59, 27:5-9; App. 62, 45:8-13.) This evidence is enough for a reasonable jury to conclude that the Coventry Police were perhaps being less than candid about what they had or had not heard that day.
In short, there is sufficient evidence on the record to create a triable issue as to whether the Coventry Police acted out of racial animus, whether their own or that of their constituents. The Appellees cannot ask that this Court ignore that evidence and grant summary disposition in their favor.
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III. CONCLUSION For each and all of the foregoing reasons as well as the ones argued in
Appellants’ Opening Brief, Appellant respectfully submits that the judgment and decision from which they appeal should be reversed and the action remanded to the District Court for further proceedings not inconsistent with the directions and mandate of this Court.
Respectfully Submitted, /s/ Vicki J. Bejma VICKI J. BEJMA, ESQUIRE STEPHEN M. ROBINSON, ESQUIRE ROBINSON & CLAPHAM 155 South Main Street, Suite 402 Providence, Rhode Island 02903 (401) 331-6565 Attorneys for Plaintiffs - Appellants
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CERTIFICATE OF COMPLIANCE WITH RULE 32(a) Certificate of Compliance with Type-Volume Limitation,
Typeface Requirement, and Type Style Requirements 1. This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(a)(B) because this brief contains 6,925, words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because: this brief has been prepared in a proportionally spaced typeface using Microsoft Word Times New Roman 14 point font.
/s/ Vicki J. Bejma Vicki J. Bejma Attorney for Plaintiffs-Appellants Dated: April 12, 2010
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CERTIFICATE OF FILING AND SERVICE I, Robyn Cocho, hereby certify pursuant to Fed. R. App. P. 25(d) that, on April 12, 2010, the foregoing Reply Brief for Plaintiffs-Appellants was filed through the CM/ECF system and served electronically on the individual listed below:
Karen K. Corcoran Marc DeSisto DeSisto Law 211 Angel Street P.O. Box 2563 Providence, RI 02906
/s/ Robyn Cocho Robyn Cocho

 
 652 F.Supp.2d 203 (2009)
Juan LOPERA, Marlon Giraldo, Mauricio Espinal, Hector Cardona Steven Giraldo, William Ruiz, Pedro Hernandez, Luis E. Ardila-Lazaro by and through his parents and next friends, Luis Ardila and Hziel Ardila, Brian Ocampo by and through his parent and next friend, Alba Jaramillo, Stephen Patino by and through his parent 204*204 and next friend, Lilian Giraldo, Joulder Salazar by and through his parents and next friends Youlder Salazar and Martha Duran, Milton Ricuarte, Jr. by and through his parents and next friends,
Milton Ricuarte, Sr. and Elizabeth Rivera, Plaintiffs, v.
TOWN OF COVENTRY by and through its Treasurer, Warren West, Kevin P. Harris in his individual capacity and in his capacity as a police officer for the Town of Coventry,
Kevin Kennedy in his individual capacity and in his capacity as a police officer for the Town of Coventry, David
Nelson in his individual capacity and in his capacity as a police officer for the Town of Coventry, Stephen A.
Michailides in his individual capacity and in his capacity as a police officer for the Town of Coventry, Ronald E. DaSilva
individually and in his capacity as Chief of Police for the Town of Coventry, and Brian J. O'Rourke individually and in his official capacity as the former Chief of Police for the
Town of Coventry, Defendants.
C.A. No. 08-123 S.
United States District Court, D. Rhode Island.
September 9, 2009.
209*209 Stephen M. Robinson, Law Offices of Stephen M. Robinson, Esq., Vicki J. Bejma, Robinson & Clapham, Providence, RI, for Plaintiffs.
Karen K. Corcoran, Marc DeSisto, DeSisto Law, Providence, RI, for Defendants.
DECISION AND ORDER
WILLIAM E. SMITH, District Judge.
In this action, Plaintiffs, now former members of the Central Falls High School boys soccer team, claim their civil rights were violated when they were subjected to a humiliating search in front of a crowd of unruly spectators by the Defendant police

officers.
While dismayed and disappointed by the officers' lack of professional judgment and the appalling conduct of the crowd, the Court is compelled to conclude that the police officers' conduct is covered by the doctrine of qualified immunity. Moreover, Plaintiffs have failed to satisfy their burden with respect to their claims of discrimination and municipal and supervisory liability. So, for the reasons explained in detail below, the Defendants' Motion for Summary Judgment is granted.
I. Factual Background[1]
On September 28, 2006, the Central Falls High School boys soccer team played an away game against Coventry High School. The Central Falls team arrived by bus. Before the game began, five or six Central Falls players used the bathrooms located inside the Coventry boys locker room. While inside, one of the Central Falls players noticed a security guard keeping an eye on them.
The game was played and resulted in a tie. After the game, Coach Marchand (the Central Falls coach) sent his team to the bus and followed behind them. Before Coach Marchand reached the bus, approximately twenty players from the Coventry football team stopped him, and in profanity-laced terms accused the Central Falls players of stealing electronic devices (iPods and cell phones) from the Coventry locker room.
Coach Marchand told the football players that he would get to the bottom of the allegation and had them follow him to the team bus. The Central Falls players already were on the bus waiting to leave. Coach Marchand entered the bus and told his players: "everybody needs to put their game bag, varsity bag and their book bags... on their laps." The coach and his assistant coach then searched each bag for the alleged stolen items. If one of his players had an iPod or cell phone, Coach Marchand asked for proof of ownership. In his deposition, he characterized the search as a good one— "I think we did a Columbo search, you know, CSI." The entire search took twenty to twenty-five minutes and none of the missing items were found.
When Coach Marchand exited the bus, the original group of twenty football players had grown to about fifty or sixty students and adults. The Coventry Athletic Director was also waiting. According to Coach Marchand, at this point the crowd was extremely vocal, shouting derogatory and racist remarks at his team and threatening not to disperse until the missing items were found.
210*210 As Coach Marchand began to discuss the situation with the Coventry Athletic Director, the four Defendant police officers arrived on scene. The officers entered the parking lot with sirens wailing and "boxed-in" the bus with their police cruisers. Coach Marchand and the Athletic Director then brought the officers up to speed on the situation. Coach Marchand informed the officers that the crowd suspected his team of stealing (or in the coach's own words: that his players were the "prime suspects.") A discussion ensued and at some point, after a "pregnant pause" in the conversation, the topic of whether the officers could do their own search came up. The parties agree it was at this point Coach Marchand consented to another search of his players. (In his deposition, however, Coach Marchand explained that he only consented because he felt compelled to do so under the circumstances.)
After obtaining Coach Marchand's consent, the officers ordered the Central Falls players to exit the bus with their belongings and stand with their backs against the

bus. Up to this point, the police officers made little to no effort to quell or disperse the crowd, even as the crowd verbally assailed the players shouting racist epithets and accusations of theft.[2]
The search of the players began with the officers ordering each player to step forward one at a time with his bag. The officers then sorted through the contents of each bag on the hood of a police cruiser. If one of the officers discovered an iPod or cell phone, he held it up for the crowd to see—purportedly to allow the "victims" a chance to identify the stolen property. Some of the boys were asked to stretch their waist band and lift their shirt so the officers could make sure they were not hiding anything, and a few of the boys were subjected to pat down searches. The entire search by the police, all of which took place in front of the angry mob, lasted approximately one hour and none of the missing items were found.
Undeterred, the mob persisted in its boorish behavior, even after the search ended. Concerned that the mob would take matters into its own hands, the officers in classic too little, too late fashion decided for safety reasons to escort the bus out of town.
II. Standard of Review
Summary judgment is appropriate where there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c). A genuine issue exists if a "reasonable jury could return a verdict for the nonmoving party," and a fact is material if it has the "potential to affect the outcome of the suit." Velazquez-Garcia v. Horizon Lines of Puerto Rico, Inc., 473 F.3d 11, 15 (1st Cir.2007). The Court views all facts and draws all reasonable inferences in favor of the nonmoving party. Torrech-Hernandez v. Gen. Elec. Co., 519 F.3d 41, 46 (1st Cir.2008).
When the defense of qualified immunity is raised on summary judgment, as it is in this case, the Court begins by "identifying the version of events that best comports with the summary judgment standard and then [asks] whether, given that set of facts, a reasonable officer should have known that his actions were unlawful." Morelli v. Webster, 552 F.3d 12, 19 (1st Cir.2009).
211*211 III. Discussion
Plaintiffs' Complaint alleges six causes of action brought pursuant to 42 U.S.C. § 1983 and state law. Counts I-III allege that the officers violated the boys' Due Process,[3] Equal Protection, and Fourth Amendment rights.[4] The remaining causes of action allege violations of R.I. Gen. Laws § 9-1-28.1, Invasion of Privacy (Count IV); § 3121.2-3 Racial Profiling (Count V); and § 9-1-35 Ethnic Intimidation (Count VI). Although not alleged in separate counts, Plaintiffs' Complaint also presents claims against the Town and the Defendant police chiefs for a failure to train and supervise the officers.[5] See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).
A. Qualified Immunity
Plaintiffs allege the officers violated their Fourth Amendment right against unreasonable searches. On this claim, the officers have asserted the defense of

qualified immunity, which "protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Pearson v. Callahan, 555 U.S. ___, ___, 129 S.Ct. 808, 815, 172 L.Ed.2d 565 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). Qualified immunity shields officials who perform their duties reasonably from liability and "applies regardless of whether the government official's error is a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact." Id. at 815, 102 S.Ct. 2727 (quoting Groh v. Ramirez, 540 U.S. 551, 567, 124 S.Ct. 1284, 157 L.Ed.2d 1068 (2004) (Kennedy, J., dissenting)).
Determining whether a public official is entitled to qualified immunity is a two-step inquiry. Maldonado v. Fontanes, 568 F.3d 263, 269 (1st Cir.2009). Under this test, "[a] court must decide: (1) whether the facts alleged or shown by the plaintiff make out a violation of a constitutional right; and (2) if so, whether the right was `clearly established' at the time of the defendant's alleged violation." Id. (citing Pearson, 129 S.Ct. at 815-16). The clearly established prong has two aspects: (1) the clarity of the law at the time of the alleged civil rights violation and (2) whether given the facts of the particular case a reasonable defendant would have understood that his conduct violated the plaintiffs' constitutional rights. Id. A negative answer to either question results in a finding of qualified immunity for the official asserting the defense. Starlight Sugar, 212*212 Inc. v. Soto, 253 F.3d 137, 141 (1st Cir. 2001).
The order in which the questions are answered rests within the discretion of the Court. See Pearson, 129 S.Ct. at 813 (holding that the inquiry need not be conducted in a strict sequential order). A judge may skip ahead and decide whether the right at issue was clearly established without deciding whether that right was violated. Id. at 820-21. In some cases, including this one, the two-step analysis blends together, where the question of whether a constitutional violation occurred depends on whether the law regarding the officers' right to rely on a consent to search was clearly established, and, if not, whether the officers' actions were objectively reasonable. See Anderson v. Creighton, 483 U.S. 635, 648, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987) (Stevens, J., dissenting) (noting the "double standard of reasonableness" that apparently applies in Fourth Amendment cases where qualified immunity is invoked).
1. Constitutional Violation
Here, it is a close call as to whether a constitutional violation occurred. There is no question that the Fourth Amendment applied to the search of the players and their belongings. See New Jersey v. T.L.O., 469 U.S. 325, 337-338, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985) ("A search of a child's person or of a closed purse or other bag carried on her person, no less than a similar search carried out on an adult, is undoubtably a severe violation of subjective expectations of privacy."). And, it is undisputed that the police did not have a search warrant and the search of the boys was not supported by probable cause. See Arizona v. Gant, ___ U.S. ___, 129 S.Ct. 1710, 1716, 173 L.Ed.2d 485 (2009) (stating that warrantless searches are per se unreasonable under the Fourth Amendment and justified only under specifically established and well-delineated exceptions). A search of a public school student will survive constitutional scrutiny if supported by a reasonable and individualized suspicion "that the search [would] 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, 105 S.Ct. 733. A reasonable suspicion, as opposed to probable cause, is required because Fourth Amendment rights "are different in public schools than elsewhere," and strict adherence to a traditional Fourth Amendment analysis would undercut the "special

needs" that exist in the public school context. Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 656, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995).
Defendants concede, at least for purposes of this argument, that it is unlikely a reasonable suspicion existed to justify the search of the Central Falls players. Instead, the Defendants contend no constitutional violation occurred because Coach Marchand consented to the search in loco parentis. Generally, a search conducted pursuant to a valid consent is constitutional. Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Furthermore, the ability to give valid consent is not limited to a person with actual authority to consent. Illinois v. Rodriguez, 497 U.S. 177, 185-86, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990). Consent may be given by a person with apparent authority; that is, an individual whom the officer reasonably believes has authority to consent. United States v. Carrasco, 540 F.3d 43, 49 (1st Cir.2008) ("[S]o long as law enforcement officers reasonably believe that the person who gives consent has the authority to do so, they may rely on that consent."); United States v. Meada, 408 F.3d 14, 21 (1st Cir.2005). Coach Marchand's authority to 213*213 consent on behalf of his players, however, is far from clear, and even though the existence of apparent authority would, in essence, dictate a finding of no constitutional violation, the question of the officers' reasonableness, in the context of a qualified immunity analysis, are more properly explored under the clearly established prong.
Therefore, the prudent approach in this case is to resolve the qualified immunity analysis by examining the clearly established prong, leaving the question of whether an actual constitutional violation occurred to the side.
2. Clearly Established Right
A right is clearly established when "the contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right." Wilson v. Layne, 526 U.S. 603, 615, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999) (quoting Anderson, 483 U.S. at 640, 107 S.Ct. 3034). The inquiry requires the Court to consider the state of the law at the time of the challenged act, or in other words "conduct the judicial equivalent of an archeological dig." Savard v. Rhode Island, 338 F.3d 23, 28 (1st Cir. 2003) (en banc). If "controlling authority" on the issue does not exist, a plaintiff may point to a "consensus of cases of persuasive authority such that a reasonable officer could not have believed that his actions were lawful." Bergeron v. Cabral, 560 F.3d 1, 11 (1st Cir.2009); see Wilson, 526 U.S. at 617, 119 S.Ct. 1692. Careful attention also must be paid to the factual nuances of the case, so as to properly define the right at issue. Wilson, 526 U.S. at 615, 119 S.Ct. 1692 (citing Anderson, 483 U.S. at 641, 107 S.Ct. 3034); see also Bergeron, 560 F.3d at 11. And, when guidance concerning the right is lacking or unclear, qualified immunity attaches because the law does not penalize officers for "picking the losing side of the controversy." Wilson, 526 U.S. at 618, 119 S.Ct. 1692; Joyce v. Town of Tewksbury, 112 F.3d 19, 22 (1st Cir.1997) (en banc). "This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of pre-existing law the unlawfulness must be apparent." Anderson, 483 U.S. at 640, 107 S.Ct. 3034 (citations omitted). At bottom, "the salient question is whether the state of the law at the time of the alleged violation gave the defendant fair warning that his particular conduct was unconstitutional." Maldonado, 568 F.3d at 269.
Defendants contend that in the eyes of the officers at the scene, Coach Marchand had the requisite apparent authority to consent to a search, and it was reasonable for them to perceive him as acting in loco parentis over the players. Plaintiffs respond that it is

well settled that the in loco parentis doctrine in the student search context cannot justify the search of a student. Plaintiffs do acknowledge that at one time the law considered a school official to act broadly in loco parentis, but they argue that over the last thirty years, that notion has become seriously outdated.
In T.L.O., the Supreme Court appeared to soundly reject the doctrine of in loco parentis as a rationale to justify a search of a student: "In carrying out searches and other disciplinary functions pursuant to such policies, school officials act as representatives of the State, not merely as surrogates for the parents, and they cannot claim the parents' immunity from the strictures of the Fourth Amendment." T.L.O., 469 U.S. at 336-37, 105 S.Ct. 733. Later, however, the Supreme Court added confusion when it referred to the powers school officials have over students 214*214 as "custodial and tutelary, permitting a degree of supervision and control that could not be exercised over free adults." Vernonia, 515 U.S. at 655, 115 S.Ct. 2386. Vernonia acknowledged "that for many purposes school authorities act in loco parentis with the power and indeed the duty to inculcate the habits and manners of civility." Id. (quoting Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 684, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986) (internal quotations omitted)).
Recently, the Supreme Court passed up an opportunity to clarify whether the in loco parentis doctrine has any significance in school search cases. See Safford Unified Sch. Dist. No. 1 v. Redding, ___ U.S. ___, 129 S.Ct. 2633, 2637, 174 L.Ed.2d 354 (2009). In Redding, the Supreme Court reviewed the conduct of a school official who subjected a thirteen-year-old student to a search of her bra and underpants on the suspicion that she was secreting prescription and over-the-counter drugs. The court held that the search violated the student's constitutional rights, but because the relevant law that surrounded the right was not clearly established, the school official who ordered the search was entitled to qualified immunity. Id. at 2644.[6]
In light of the Supreme Court's silence on the issue and the rather clear language of T.L.O., a persuasive argument could be made that the in loco parentis doctrine serves no purpose in cases involving the Fourth Amendment rights of public school students. However, based on the full record of commentary on the issue, this Court cannot conclude that this was a clearly established principle of constitutional law in 2006. See Morse v. Frederick, 551 U.S. 393, 416 n. 6, 127 S.Ct. 2618, 168 L.Ed.2d 290 (2007) (J. Thomas, concurring) (stating that at least nominally the Supreme Court continues to recognize the applicability of the in loco parentis doctrine to public schools). Indeed, such a conclusion is not possible without ignoring the Supreme Court's statements in Vernonia and Frasier.
A review of circuit courts' decisional law also contributes to the lack of clarity on the issue. The courts that have referred to the in loco parentis doctrine have done so in a way that makes it appear that the doctrine is a viable source of authority to justify a school official's actions. See e.g. Hampton v. Oktibbeha County Sheriff Dep't, 480 F.3d 358, 362 (5th Cir.2007) (stating that school officials act in loco parentis in dealing with students); Ramos v. Town of Vernon, 353 F.3d 171, 183 n. 5 (2d Cir.2003) (implying that in a public school the in loco parentis doctrine allows for a greater degree of control over children); Gruenke v. Seip, 225 F.3d 290, 307 (3d Cir.2000) ("Public schools must not forget that `in loco parentis' does not mean `displace parents.'"); Wojcik v. Town of N. Smithfield, 76 F.3d 1, 3 (1st Cir.1996) (indicating that school officials acted in loco parentis in connection with a Fourth Amendment seizure of a child); Hassan v. Lubbock Indep. Sch. Dist., 55 F.3d 1075, 1080 n. 15 (5th Cir.1995) (citing Webb v. McCullough, 828 F.2d 1151 (6th Cir.1987) (stating that school field trips often present greater, not lesser, challenges to school officials and justify in loco parentis authority as well as official authority)); Rhodes v. Guarricino, 54

215*215 F.Supp.2d 186, 192 (S.D.N.Y.1999) ("Much more than when on their home campus, defendants were acting in loco parentis to plaintiffs."); see also Seal v. Morgan, 229 F.3d 567, 582 (6th Cir.2000) (Suhrheinrich, J., dissenting in part) ("In addition to their duty to educate, schools act in loco parentis."); Schleifer by Schleifer v. City of Charlottesville, 159 F.3d 843, 861 (4th Cir. 1998) (Michael, J., dissenting) ("the teachers and administrators of a public school will act `in loco parentis' while children are in their physical custody because parents `delegate part of [their] authority' to the school by placing their children under its instruction"); see generally Knox County Educ. Ass'n v. Knox County Bd. of Educ., 158 F.3d 361, 375 (6th Cir.1998) (upholding a program of conducting suspicionless drug testing of teachers and administrators in part because of the in loco parentis obligations imposed upon them by state statute). But see Tenenbaum v. Williams, 193 F.3d 581, 594 n. 9 (2d Cir.1999) ("the Supreme Court has rejected the notion that public schools generally act in loco parentis in their dealings with students").[7] Courts have bandied about the phrase to such an extent that it is far from clear exactly what role the in loco parentis doctrine plays in a Fourth Amendment analysis, particularly in the specific factual context presented here.
Based on all this, it cannot be said that the law in 2006 was clearly established concerning whether a high school coach chaperoning his players during an away game could or could not consent to a search of his players by police in loco parentis. What is clear, however, is that Fourth Amendment rights "are different in public schools than elsewhere; [and] the `reasonableness' inquiry cannot disregard the schools' custodial and tutelary responsibility for children." Vernonia, 515 U.S. at 656, 115 S.Ct. 2386. Therefore, because the law was not clearly established concerning Coach Marchand's authority to consent to the search, the Defendant officers were entitled to rely on the consent.
Plaintiffs' argument—that if a public school official cannot consent to his own infringements of students' Fourth Amendment rights, see T.L.O., 469 U.S. at 336-37, 105 S.Ct. 733, then he cannot authorize another to accomplish the forbidden act— is logically persuasive, but ultimately unavailing to block qualified immunity. In addition to the muddy state of the case law described above, the argument also overlooks the question of the reasonableness of the officers' (mis)judgment. Bergeron, 560 F.3d at 12-13. If the officers could reasonably have believed that they were able to rely on Coach Marchand's consent (even if that belief was wrong), they would be entitled to qualified immunity. Id. at 13; Jennings v. Jones, 499 F.3d 2, 18 (1st Cir.2007) ("[E]ven if an officer's conduct violated clearly established Fourth Amendment law, he may still be eligible for qualified immunity if he was reasonably mistaken as to the degree of force he should have used."). Given the state of the law at the time, and Coach Marchand's apparent authority over his players, it was reasonable for the officers to have believed they could rely on Coach Marchand's consent and qualified immunity must apply.
Attempting to avoid this result, Plaintiffs point to a written Coventry Police 216*216 Department policy and R.I. Gen. Laws § 16-21.5-3, both of which deal with interrogating minors, and argue that in light of these authorities it was clearly established that Coach Marchand could not consent in loco parentis.[8] This argument fails for two reasons. First, the Coventry policy and § 16-21.5-3 only apply to questioning and not to searches; and, second, these authorities do nothing to clarify the state of federal constitutional law.
"Officials sued for constitutional violations do not lose their qualified immunity merely because their conduct violates some statutory or administrative provision." Davis v. Scherer, 468 U.S. 183, 194, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984) (emphasis

added). Put another way, "a state official's violation of a state statute or regulation, not itself the basis of the federal suit, should not deprive the official of qualified immunity from damages for violation of other statutory or constitutional provisions." Goyco de Maldonado v. Rivera, 849 F.2d 683, 687 (1st Cir.1988) (citing Davis, 468 U.S. at 19396, 104 S.Ct. 3012). Simply put, neither police department policy nor Rhode Island statutes can determine whether federal law was clearly established.
Plaintiffs also argue that even if the law on Coach Marchand's authority to consent was not clearly established, the officers still acted unreasonably because the consent was the product of coercion and therefore invalid. The voluntariness question—that is, whether consent to a search was the product of duress or coercion (express or implied)—is determined from the totality of the circumstances. United States v. Dunbar, 553 F.3d 48, 57 (1st Cir.2009); United States v. Luciano, 329 F.3d 1, 7 (1st Cir.2003). Each case must be viewed on its own facts and in its own context. United States v. Berkowitz, 429 F.2d 921, 925 (1st Cir.1970). "There is no talismanic definition of `voluntariness' readily applicable to the myriad situations in which the police find it efficient to ask permission to conduct a consensual search." United States v. Hall, 969 F.2d 1102, 1106 (D.C.Cir.1992). Relevant factors include "the consenting party's age, education, experience, intelligence, and knowledge of the right to withhold consent" and whether the consenting party was advised of his rights and whether consent was obtained under "inherently coercive circumstances." Dunbar, 553 F.3d at 57 (quoting United States v. Forbes, 181 F.3d 1, 5 (1st Cir.1999)).
In this case, concerns that Coach Marchand's consent was coerced are put to rest by his deposition testimony. Coach Marchand testified that in response to the officers' request for consent he thought about the safety of his team, and the fact he knew his team was innocent; and, he said, that he decided to take the "high road." (Def.s' Mot. for Summ. J. Ex. A 28 (Doc. 25).)[9] From this it is obvious Coach Marchand understood the situation and 217*217 rendered consent after careful and deliberate thought.[10] Coach Marchand's consent was voluntary and the officers' qualified immunity cannot be defeated on this basis. Accordingly, summary judgment will enter in favor of the Defendants on Counts I and III.
B. Invasion of Privacy Claim
Little need be said about Plaintiffs' claim for invasion of privacy under R.I. Gen. Laws § 9-1-28.1 because the qualified immunity defense is "well grounded in the law of Rhode Island." Hatch v. Town of Middletown, 311 F.3d 83, 90 (1st Cir.2002) (discussing "recognition of a qualified immunity defense under state law analogous to the federal doctrine"); J.R. v. Gloria, 599 F.Supp.2d 182, 205 (D.R.I.2009). Plaintiffs' cause of action for invasion of privacy arises from the conduct for which the officers are immune from suit. Summary judgment is therefore appropriate on Count IV as well.
C. Equal Protection
"To succeed on a § 1983 equal protection claim, the plaintiffs must prove that the defendants acted in a discriminatory manner and that the discrimination was intentional." Reese v. Jefferson Sch. Dist. No. 14J, 208 F.3d 736, 740 (9th Cir. 2000); see Hayden v. Grayson, 134 F.3d 449, 453 (1st Cir.1998). "That is, the plaintiff must establish that the defendant intentionally treated the plaintiff differently from others who were similarly situated." In re Subpoena to Witzel, 531 F.3d 113, 118-19 (1st Cir.2008). "A discriminatory intent or purpose means that the defendants `selected or

reaffirmed a particular course of action at least in part because of, not merely in spite of, its adverse effects upon an identifiable group.'" Id. at 119 (quoting Wayte v. United States, 470 U.S. 598, 610, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985)).
Here, Plaintiffs have failed to produce evidence sufficient to permit a reasonable jury to find that the officers' conduct was racially motivated. Plaintiffs argue that the overwhelming circumstantial evidence proves that they were singled out based upon race. They point to evidence that Central Falls is an ethically diverse community; the team was comprised of a number of Hispanics; the officers acknowledged members of the crowd could have just as likely perpetrated the theft but no one else was searched; and that the officers took no effective action to silence the mob from spewing racist insults.
It is the rare case in which a plaintiff can point to specific racist statements made by government officials, and circumstantial evidence may certainly demonstrate an intent to discriminate. Judge v. City of Lowell, 160 F.3d 67, 77 (1st Cir. 1998) (overruled on other grounds). But the facts Plaintiffs have marshaled to support an inference of discriminatory animus are woefully inadequate. Circumstantial evidence consists of proof of a series of 218*218 facts or circumstances from which the existence or nonexistence of another fact may be reasonably inferred. Absolutely nothing can be inferred from Plaintiffs' evidence and to conclude otherwise is to engage in rank speculation. See Calvi v. Knox County, 470 F.3d 422, 426 (1st Cir. 2006) (stating that at the summary judgment stage a conglomeration of conclusory allegations, improbable inferences, and unsupported speculation is insufficient to discharge the nonmovant's burden).
While the evidence may reflect the officers' poor judgment in giving into an unruly mob and humiliating the boys, it does not even approach discrimination. It is undisputed that Coach Marchand informed the officers that his team was under suspicion for the alleged theft—or in Coach Marchand's words "the prime suspects." Furthermore, the officers only conducted their search after Coach Marchand consented. The officers' conduct in this case resulted from the information and consent that Coach Marchand provided and not from any racial or ethnic bias. Summary judgment on Count II will therefore enter in Defendants' favor.
D.R.I. Racial Profiling Prevention Act and Ethnic Intimidation Statute
For the reasons stated above with respect to Plaintiffs' Equal Protection claim, summary judgment must also enter on Counts V and VI, brought under Rhode Island's Racial Profiling Prevention Act, R.I. Gen. Laws § 31-21.2-3, and Ethnic Intimidation Statute, R.I. Gen. Laws § 9-1-35. Both statutes require discriminatory animus. The Racial Profiling Prevention Act requires that an individual be subject to disparate treatment by a law enforcement officer or agency, in whole or in part, on the basis of race or ethnicity. R.I. Gen. Laws § 31-21.2-3. Similarly, the Ethnic Intimidation Statute allows for a cause of action when a person has been "maliciously subjected to an act or acts which would reasonably be construed as intended to harass or intimidate the person because of his or her race, religion, or national origin." Id. at § 9-1-35. Plaintiffs have presented no evidence from which a reasonable trier of fact could conclude the Defendants' actions were motivated by the Plaintiffs' race or ethnicity. Again, it is critical to distinguish between the racist behavior and words of the mob and those of the officers. There is no evidence to support saddling the officers with the idiocies of the adults and students in the mob. Therefore, Defendants' Motion for Summary

Judgment on Counts V and VI must be granted.
E. Supervisory Liability
Plaintiffs are also seeking to hold Chief DaSilva and Chief O'Rourke liable in their capacities as supervisory officials. Supervisory liability cannot be predicated on a respondeat superior theory, and instead must stem from the supervisor's own acts or omissions. Seekamp v. Michaud, 109 F.3d 802, 808 (1st Cir.1997). A supervisor can be held liable if (1) the behavior of his subordinates results in a constitutional violation, and (2) the supervisor's action or inaction was affirmatively linked to that behavior in that it could be characterized as supervisory encouragement, condonation or acquiescence or gross negligence amounting to deliberate indifference. Id. (quoting Lipsett v. Univ. of Puerto Rico, 864 F.2d 881, 902 (1st Cir.1988) (internal quotations omitted)).
Hyperbole and speculation are behind Plaintiffs' claims for supervisory liability. Plaintiffs have not alleged either police chief was at the scene or had prior knowledge (actual or constructive) of the situation such that it could be argued they were deliberately indifferent in failing to prevent 219*219 the search. Rather, Plaintiffs rest their claims for supervisory liability on a theory of inadequate training. Despite submitting evidence that the Coventry Police Department sent at least one of its officers to a basic and advanced school resource officer training program hosted by the National Association of School Resource Officers, Plaintiffs argue that the chiefs' failure to train its officers amounted to deliberate indifference given the inevitable likelihood officers in the Town would confront situations involving searches of public school students. This argument asks too much. Plaintiffs have presented no evidence of "a known history of widespread abuse sufficient to alert a supervisor to ongoing violations." Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 582 (1st Cir.1994). Plaintiffs did submit evidence that Coventry officers have in the past responded to the high school and conducted searches, but a smattering of such incidents does not place this case within the "narrow range of circumstances," where the constitutional violation alleged occurs as "a highly predictable consequence of a failure to equip law enforcement officers with specific tools to handle recurring situations." Young v. City of Providence, 404 F.3d 4, 28 (1st Cir.2005). Even if the Court assumes the officers' actions amounted to a constitutional violation, the evidence submitted is inadequate to conclude Chief DaSilva or Chief O'Rourke was deliberately indifferent or wilfully blind. See Maldonado-Denis, 23 F.3d at 582 ("[I]solated instances of unconstitutional activity ordinarily are insufficient to establish a supervisor's policy or custom, or otherwise to show deliberate indifference."). Simply put, without a shred of evidence that the action or inaction of either chief "led inexorably to the constitutional violation," Plaintiffs' supervisory liability claims fail as a matter of law. Maldonado, 568 F.3d at 275 (quoting Pineda v. Toomey, 533 F.3d 50, 54 (1st Cir. 2008)).
F. Municipal Liability
Having disposed of all claims brought against the Defendants in their individual capacities, the Court addresses whether a basis exists to hold the Town of Coventry liable. The cloak of qualified immunity that protects the officers does not shield the Town from liability. See Estate of Bennett v. Wainwright, 548 F.3d 155, 177 (1st Cir.2008) ("[I]t is not impossible for a municipality to be held liable for the actions of lower-level officers who are themselves entitled to qualified immunity."). To prevail, however, Plaintiffs need evidence that the officers' actions constitute a constitutional violation and were caused by a "policy or custom" of the Town. Id. (citing Martínez-

Vélez v. Rey-Hernández, 506 F.3d 32, 41 (1st Cir.2007)); see also Monell, 436 U.S. at 694, 98 S.Ct. 2018. In other words, the policy or custom must be the "moving force behind the deprivation of constitutional rights." Bisbal-Ramos v. City of Mayaguez, 467 F.3d 16, 24 (1st Cir.2006). To be actionable a custom or practice must be "so wellsettled and widespread that the policymaking officials of the municipality can be said to have either actual or constructive knowledge of it yet did nothing to end the practice." Id. at 23-24 (quoting Silva v. Worden, 130 F.3d 26, 31 (1st Cir.1997) (internal quotations omitted)). Where a claim of inadequate training is alleged to have caused the constitutional injury, the municipality's failure to train must be the product of deliberate indifference such that the Town disregarded a known or obvious risk of serious harm from its failure to develop an adequate training program. Estate of Bennett, 548 F.3d at 177; Young, 404 F.3d at 28.
220*220 Plaintiffs' claim for municipal liability is based on a failure to train and fails for the same reasons their claims for supervisory liability fail. Even if a constitutional violation occurred, Plaintiffs offer no evidence of a policy, custom, practice or of any deliberate indifference on the part of the Town. Moreover, nothing Plaintiffs point to bears the requisite causal relationship to the alleged constitutional deprivation to establish liability. Accordingly, summary judgment will enter for the Town on Plaintiffs' claims of municipality liability.
IV. Conclusion
For all of the foregoing reasons, Defendants' Motion for Summary Judgment is hereby GRANTED, and judgment shall enter for the Defendants.
IT IS SO ORDERED.
[1] The facts described are taken from the record evidence including depositions of the relevant players in the controversy. While reviewed from the standpoint most favorable to the Plaintiffs, as required at the summary judgment stage, the basic facts are essentially undisputed.
[2] For example, one player heard a woman in the crowd call the boys "spics." Coach Marchand testified that people in the crowd used phrases like: "those people," "they're good at hiding things," "they're sneaky, you know it," and made reference to the boys being from "the ghetto."
[3] At oral argument, Plaintiffs' counsel conceded that the Due Process claim (Count I) overlaps their claim under the Fourth Amendment (Count III) and was not intended to allege a violation of Plaintiffs' substantive due process rights.
[4] Plaintiffs' § 1983 claims against the police officers are asserted in both the officers' individual and official capacities. Because claims brought against a municipal employee in his or her official capacity are essentially claims against the municipality itself, they are duplicative of Plaintiffs' direct action against the Town. See Hafer v. Melo, 502 U.S. 21, 25-27, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991). Thus the Court need not consider each official capacity claim separately.
[5] During oral argument, Plaintiffs' counsel clarified that the Complaint indeed contained claims for failure to train and supervise. However, in the Court's view that is debatable. Notwithstanding the inartfully drawn Complaint, the Plaintiffs received the benefit of the doubt, but because the Defendants' motion only addressed the causes of action specifically delineated in the Complaint, the Court allowed them to supplement their motion and address the merits of the two additional claims.
[6] Justice Thomas's partial dissent urged the Court to adopt an in loco parentis standard to govern all school search cases, a point the majority declined to address. See Safford Unified Sch. Dist. No. 1 v. Redding, ___ U.S. ___, 129 S.Ct. 2633, 2646, 2655, 174 L.Ed.2d 354 (2009) (Thomas, J., concurring in part, dissenting in part) (advocating for a "return to the common-law doctrine of in loco parentis" and a "complete restoration" of the doctrine) (emphasis added).
[7] So there is no confusion, the Court is not suggesting that these authorities stand for the proposition that Coach

Marchand had the authority to consent by virtue of any in loco parentis status he may have had. All the Court is saying is that the case law on the limits of a school official's in loco parentis authority in the specific factual context of this case is not sufficiently clear so that a reasonable police officer would be on notice that searching players based on the consent of their coach is unconstitutional.
[8] In pertinent part, the statute requires that:
Before making a high school pupil under eighteen (18) years of age available to a law enforcement officer for the purpose of questioning, the principal of the school, or his or her designee, shall inform the pupil that the pupil has the right to request that his or her parent or guardian or an adult family member, or person on the list of emergency contacts for the pupil be present during the questioning.
R.I. Gen. Laws § 16-21.5-3(a).
[9] Coach Marchand further testified:
I'm a First Amendment [sic] guy, you're getting to know [sic], you know, and I dread to say, screw you get a search warrant and I debated that. Okay. Then I said no, that's not my role, at that point my role as coach, I'm suppose (sic) to be the father, I'm suppose (sic) to take them home safe.
(Defs' Mot. for Summ. J. Ex. A 29 (Doc. 25).)
[10] At one point in his deposition, Coach Marchand said he consented because he was under duress. However, considering his use of the term "duress" in context, it is evident that Coach Marchand was attempting to poetically explain the stressfulness of the situation and the difficulty of his decision—albeit perhaps inartfully for Fourth Amendment purposes. (Def.s' Mot. for Summ. J. Ex. A 30-31 (Doc. 25).) It does not automatically follow that his consent was involuntary simply because he stated that he was under duress. The Court also rejects Plaintiffs' argument that the circumstances under which Coach Marchand gave consent were inherently coercive. See United States v. Jones, 523 F.3d 31, 38 (1st Cir.2008) (affirming a finding of voluntary consent when given by a defendant surrounded by officers and holding that custody alone was not enough to show coercion).

 
 Case 1:08-cv-00123-S-DLM Document 1 Filed 04/07/08 Page 1 of 10 PageID #: 1

UNITED STATES DISTRICT COURT DISTRICT OF RHODE ISLAND

Juan Lopera, Marlon Giraldo, Mauricio Espinal, Hector Cardopa, Marlon Giraldo, Steven Giraldo, William Ruiz, Pedro Hernandez, Luis E. Ardila-Lazaro, by and through his parents and next friends, Luis Ardila and Hziel Ardila; Brian Ocampo, by and through his parent and next friend, Alba Jaramillo; Stephen Patino, by and through : his parent and next friend, Lilian Giraldo; Joulder Salazar, by and through his parents and next friends Youlder Salazar and Martha Duran; Milton Ricuarte, Jr., by and through his parents and next friends, Milton Ricuarte Sr. and Elizabeth Rivera
Plaintiffs

08 123 S
C.A. No: 07JURY TRIAL DEMANDED

vs.

TOWN OF COVENTRY, by and through its Treasurer, Warren West; Kevin P. Harris, in his individual capacity and in his capacity a police officer for the Town of Coventry, Kevin Kennedy, in his individual capacity and in his capacity as a police officer for the Town of Coventry, David Nelson, in his individual capacity and in his capacity as a police officer for the Town of Coventry, Stephen A. Michailides, in his individual capacity and in his capacity as a police officer for the Town of Coventry; and Brian O'Rourke, individually and in his capacity as the former Chief of Police for the Town of Coventry, and Ronald E. DaSilva, individually and in his capacity as Chief of Police for the Town of Coventry
Defendants

COMPLAINT AND JURY TRIAL DEMAND

I. Backgro.und

1. This is an action for compensatory damage, punitive damages, reasonable attorney's

fees, costs and expenses related to the conduct of defendants on or about September 28, 2006.

1

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2. Such conduct by the Defendants, an unwarranted and unfounded search and· interrogation in the face of an angry crowd, was in violation of the constitutional protections afforded the Plaintiffs under the 14th Amendment and in violation 42 U.S.C. §1983.
3. Additionally, the acts and omissions of the Defendants have given rise to pendant claims of invasion of privacy, and violation of the Racial Profiling Prevention Act of 2004, and violation ofR.I.G.L. § 9-1-35.
II. Jurisdiction 4. This court is empowered to hear this case pursuant to 28 U. S. C. § 1331, its federal question jurisdiction. The court is also empowered to hear the civil rights claims enumerated herein pursuant to 28 U. S. C. § 1343. Additionally, the court is empowered to hear the state law claims presented pursuant to 28 U. S. C. § 1367.
III. Venue
5. Venue rests with this court pursuant to 28 U. S. C. § 139l.
IV. Parties 6. Plaintiffs, Juan Lopera, Marlon Giraldo, Mauricio Espinal, Hector Cardona, Marlon Giraldo, Steven Giraldo, William Ruiz, Pedro Hernandez, Luis E. Ardila-Lazaro, Brian Ocampo, Stephen Patino, Joulder Salazar and Milton Ricuarte, Jr., are residents of the City of Central Falls and were members ofthe Central Falls High School soccer team during the 2006-2007 school year. 7. Plaintiffs, Juan Lopera, Marlon Giraldo, Mauricio Espinal, Hector Cardona, Marlon Giraldo, Steven Giraldo, William Ruiz, -and Pedro Hernandez, have reached the age of majority. The remaining Plaintiffs, being minors, bring this action by and through their parents and next friends, as follows: Luis E. Ardila-Lazaro, by and through his parents and next friends, Luis
2

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Ardila and Hziel Ardila; Brian Ocampo, by and through his parent and next friend, Alba Jaramillo; Stephen Patino, by and through his parent and next friend, Lilian Giraldo; Joulder Salazar, by and through his parents and next friends Youlder Salazar and Martha Duran; Milton Ricuarte, Jr., by and through his parents and next friends, Milton Ricuarte Sr. and Elizabeth Rivera
8. The Defendant Town of Coventry (hereinafter, "Town") is a duly authorized and organized municipality pursuant to the laws ofthe State of Rhode Island and is sued by and through its Treasurer, Warren West, the official designated by State law, R.I.G.L. § 45-15-5, to be named in a suit for relief against the Town.
9. Defendant Kevin P. Harris is sued individually and in his official capacity as a police officer employed by the Town Police Department.
10. Defendant Kevin Kennedy is sued individually and in his official capacity as a police officer employed by the Town Police Department.
11. Defendant David Nelson is sued individually and in his official capacity as a police officer employed by the Town Police Department.
12. Defendant Stephen A. Michailides is sued individually and in his official capacity as a police officer employed by the Town Police Department
13. Defendant Brian J. O'Rourke is sued individually and in his official capacity as the former Chief ofthe Town Police Department.
14. Defendant Ronald E. DaSilva is sued individually and in his official capacity as the Chief of the Town Police Department.
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v. Facts
15. More than forty (40) days have elapsed since presentment of the Plaintiffs' claims to the Town Council of the Town in accordance with R.I.G.L. § 45-15-5 without Plaintiffs' having received just and due satisfaction from the defendants.
16. On or about September 28, 2006, the Plaintiffs and other members of the Central Falls High School men's soccer team traveled to Coventry High School for a scheduled game against the Coventry High School men's soccer team.
17. The Plaintiffs are of the Hispanic race. 18. The Town of Coventry is predominately white. 19. Plaintiffs traveled from Central Falls High School to Coventry High School via school bus accompanied by their coach, Robert Marchand. 20. When the Plaintiffs arrived at Coventry High School, they asked their coach if they could use the restroom facilities located inside Coventry High School. 21. The Plaintiffs entered and exited the school without incident and proceeded to the soccer field. 22. During the game the Plaintiffs endured repeated slurs regarding their race, ethnicity, and national origin from both their opponents and the predominately white crowd attending the game. 23. Upon leaving the soccer field following the game, the Central Falls team encountered a group of Coventry High School students who accused them oftheft. 24. Members of the crowd cornered Robert Marchand when the Central Falls team boarded its bus regarding the alleged theft. Robert Marchand questioned his players, searched their bags and reported to the crowd that they did not steal anything.
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25. On information and belief, the Coventry Police Department was called and informed that there was a disturbance occurring between two groups of students at the high school.
26. The Coventry police, including defendants Harris, Kennedy, Michailides and Nelson raced to the scene with lights blaring and blocked the school bus from departing.
27. The Coventry students made accusations to the police that the Central Falls students had stolen items from their locker room.
28. Defendants Harris, Kennedy, Michailides and Nelson requested to speak with the Central Falls players and the players were told to exit the bus with their belongings.
29. Defendants Harris and Kennedy interrogated and searched Plaintiffs without probable cause, without their consent.
30. Defendants Michailides and Nelson aided their fellow police officers in their search and interrogation ofthe Plaintiffs.
31. Defendant police officers stated to the Plaintiffs that the search was being done to placate the angry crowd.
32. Plaintiffs were forced to be searched publicly in front of an angry crowd which photographed and taunted the Plaintiffs.
33. The Defendants Town and O'Rourke failed to properly select, train, instruct, supervise and discipline officers in the Town Police Department, including Defendants Harris, Kennedy, Nelson and Michailides, relative to the proper manner in which to conduct searches and seizures.
34. During all relevant time periods, a custom or policy existed in the Town Policy department wherein accused minorities were afforded less Constitutional rights than other accused persons.
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35. Defendants Town and O'Rourke were deliberately indifferent to this custom or policy.
36. The Town is liable under the doctrine of respondent superior for the negligent acts and/or omissions of its agents, including defendants Harris, Kennedy, Nelson, and Michailides, police officers employed by the Town Police Department and under the direct supervision of Defendant O'Rourke, whose acts and/or omissions within the scope of his employment were the proximate cause of the injuries suffered by the Plaintiffs.
37. Defendants knew or should have known that by failing and/or refusing to property investigate the allegations of theft and proceeding with the search and interrogation of the plaintiffs they were acting in a discriminatory and unlawful manner.
38. At all relevant times, the Defendants acted negligently, intentionally, willfully, maliciously, and/or with reckless or callous indifference to Plaintiffs' constitutionally protected rights. Furthermore, at all relevant times, Defendants knew or should have known that their conduct would cause or contribute to the deprivation of Plaintiffs' civil rights and cause Plaintiffs great harm.
39. As a proximate result of the Defendants acts and/or omissions, including but not limited to those described herein, Plaintiffs have suffered, and will continue to suffer mental anguish, embarrassment, invasion of privacy, tarnished reputations, deprivation of their civil rights, and other great harm.
VI. Claims for Relief 40. Plaintiffs incorporate in the counts below the allegations contained in the Paragraphs above.
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Count 1 Denial of Due Process in Violation of 42 U.S.c. §1983 41. Defendants, acting under the color of state law, by their individual and concerted acts and/or omissions, including but not limited to those described herein, caused the plaintiffs to be searched and interrogated in violation of the due process of the law, causing Plaintiffs to suffer aforesaid damages, and thereby deprived the Plaintiffs of rights secured under the Fourteenth Amendment to the United States Constitution, actionable pursuance to 42 U.S.C. §1983.
Count 2 Denial of Equal Protection in Violation of 42 U.S.C. §1983 42. Defendants, acting under the color of state law, by their individual and concerted acts and/or omissions, including but not limited to those described herein, caused the plaintiffs, who are predominantly minorities, to be searched and interrogated in violation the equal protection of the law, causing Plaintiffs to suffer aforesaid damages, and thereby depriving the Plaintiffs of rights secured under the Fourteenth Amendment to the United States Constitution, actionable pursuance to 42 U.S.C. §1983.
Count 3 Unreasonable Search and Seizure in Violation of 42 U.S.C. §1983 43. Defendants, acting under the color of state law, by their individual and concerted acts and/or omissions, including but not limited to those described herein, caused the Plaintiffs to be searched without probable cause and/or a warrant, absent circumstances in which probable cause and/or warrant is not required, in violation of the Plaintiffs' Constitutional rights secured under the Fourteenth Amendment to the United States Constitution, actionable pursuance to 42 U.S.C. §1983.
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Count 4 Invasion of Privacy in Violation ofR.I.G.L. § 9-1-28.1 44. Defendants, by their individual and concerted acts and/or omissions, including but not limited to those described herein, caused an invasion to the privacy of the Plaintiffs in violation ofR.I.G.L. § 9-1-28.1, causing Plaintiffs to suffer aforesaid damages.
CountS Violation of Racial Profiling Prevention Act of 2004, R.I.G.L. § 31-21.2 et seq. 45. Defendants, by their individual and concerted acts and/or omissions, including but not limited to those described herein, caused an violation of the Rhode Island Racial Profiling Prevention Act of2004, R.I.G.L. § 31-21.2 et seq., which forbids: "detention, interdiction or other disparate treatment of an individual on the basis, in whole or in part, of the racial or ethnic status of such individual, except when such status is used, in combination with other identifYing factors seeking to apprehend a specific suspect whose racial or ethnic status is part of the description of the suspect, which description is timely and reliable," and caused the Plaintiffs to suffer the aforementioned damages. 46. Defendants' actions were motivated on the basis of the Plaintiffs racial and/or ethnic status, but were not motivated by an attempt to apprehend a specific suspect pursuant to any description.
Count 6 Violation ofR.I.G.L. § 9-1-35 (RaciallNational Origin Intimidation) 47. Defendants, by their individual and concerted acts and/or omissions, including but not limited to those described herein, maliciously subjected Plaintiffs to acts that would ".. reasonably be construed as intended to harass or intimidate the person because of his or her
8

Case 1:08-cv-00123-S-DLM Document 1 Filed 04/07/08 Page 9 of 10 PageID #: 9 race, ... or national origin," in violation ofR.I.G.L. § 9-1-35, causing Plaintiffs to suffer aforesaid damages.
V. Prayers for Relief WHEREFORE, Plaintiffs pray that this Court grant the following relief:
1. An award of compensatory damages. 2. An award ofpunitive damages. 3. An award of reasonable attorney's fees and costs of litigation to Plaintiffs'
attorney pursuant to 42 U.S.C. §1988. 4~ An award of statutory interest. 5. Such other and future relief as the Court deems just and proper.
VI. Demand for a JUry Trial Plaintiffs hereby demand a trial by jury on all counts so triable.
Plaintiffs, By their attorney,
9

Case 1:08-cv-00123-S-DLM Document 1 Filed 04/07/08 Page 10 of 10 PageID #: 10

\ ,.rr.J~' f"\\1 ____

Vicki J. Bejma # 498

'.

The Law Offices of Stephen M. Robinson

155 South Main Street, Suite 402

Providence, RI 02903

(401) 331-5353

fax 331-7373

April 2, 2008

10

 
 Case 1:08-cv-00123-S-DLM Document 36 Filed 09/11/09 Page 1 of 2 PageID #: 342

UNITED STATES DISTRICT COURT

DISTRICT OF RHODE ISLAND

________________________________________

)

Juan Lopera, Marlon Giraldo,

)

Mauricio Espinal, Hector Cardona

)

Steven Giraldo, William Ruiz,

)

Pedro Hernandez, Luis E. Ardila-Lazaro )

by and through his parents and next

)

friends, Luis Ardila and Hziel Ardila, )

Brian Ocampo by and through his

)

parent and next friend, Alba

)

Jaramillo, Stephen Patino by and

)

through his parent and next friend,

)

Lilian Giraldo, Joulder Salazar by and )

through his parents and next friends )

Youlder Salazar and Martha Duran,

)

Milton Ricuarte, Jr. by and through

)

his parents and next friends, Milton )

Ricuarte, Sr. and Elizabeth Rivera,

)

)

Plaintiffs, )

)

v.

) C.A. No.

)

Town of Coventry by and through

)

its Treasurer, Warren West, Kevin P. )

Harris in his individual capacity and )

in his capacity as a police officer for )

the Town of Coventry, Kevin Kennedy in )

his individual capacity and in his

)

capacity as a police officer for the )

Town of Coventry, David Nelson in his )

individual capacity and in his capacity )

as a police officer for the Town of

)

Coventry, Stephen A. Michailides in his )

individual capacity and in his capacity )

as a police officer for the Town

)

of Coventry, Ronald E. DaSilva

)

individually and in his capacity as

)

Chief of Police for the Town of

)

Coventry, and Brian J. O’Rourke

)

individually and in his official

)

capacity as the former Chief of Police )

for the Town of Coventry,

)

)

Defendants. )

________________________________________)

08-123 S

Case 1:08-cv-00123-S-DLM Document 36 Filed 09/11/09 Page 2 of 2 PageID #: 343

JUDGMENT
[ ] Jury Verdict. This action came before the Court for a trial by jury. The issues have been tried and the jury has rendered its verdict.
[ X ] Decision by the Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.
IT IS ORDERED AND ADJUDGED:
Pursuant to the Decision and Order entered by this Court on September 11, 2009 judgment hereby enters for the Defendants Town of Coventry by and through its Treasurer, Warren West, Kevin P. Harris in his individual capacity and in his capacity as a police officer for the Town of Coventry, Kevin Kennedy in his individual capacity and in his capacity as a police officer for the Town of Coventry, David Nelson in his individual capacity and in his capacity as a police officer for the Town of Coventry, Stephen A. Michailides in his individual capacity and in his capacity as a police officer for the Town of Coventry, Ronald E. DaSilva individually and in his capacity as Chief of Police for the Town of Coventry, and Brian J. O’Rourke individually and in his official capacity as the former Chief of Police for the Town of Coventry and against the Plaintiffs Juan Lopera, Marlon Giraldo, Mauricio Espinal, Hector Cardona Steven Giraldo, William Ruiz, Pedro Hernandez, Luis E. Ardila-Lazaro by and through his parents and next friends, Luis Ardila and Hziel Ardila, Brian Ocampo by and through his parent and next friend, Alba Jaramillo, Stephen Patino by and through his parent and next friend, Lilian Giraldo, Joulder Salazar by and through his parents and next friends Youlder Salazar and Martha Duran, Milton Ricuarte, Jr. by and through his parents and next friends, Milton Ricuarte, Sr. and Elizabeth Rivera.

Dated: September 11, 2009

Enter:
/s/ Ryan H. Jackson Deputy Clerk

 
 CCaassee1: :0098--2c3v8-0601D23o-cSu-mDeLnMt: 3D6ocPuamgeen: t144 DFatileedFi0le4d/0: 10/41/101/P20a1g1e 1 Eofn1tryPIaDg:e5ID53#8:546883
United States Court of Appeals
For the First Circuit

No. 09-2386

JUAN LOPERA, ET AL., Plaintiffs, Appellants, v.
TOWN OF COVENTRY, ET AL., Defendants, Appellees.

JUDGMENT
Entered: April 1, 2011
This cause came on to be heard on appeal from the United States District Court for the District of Rhode Island and was argued by counsel.
Upon consideration whereof, it is now here ordered, adjudged and decreed as follows: The judgment of the district court is affirmed.

By the Court: /s/ Margaret Carter, Clerk

cc: Ms. Corcoran, Mr. DeSisto, Mr. Robinson, Mr. Bender and Ms. Bejma.

 
 Case: 1:08-cv-123 As of: 09/22/2012 03:55 PM EDT 1 of 8
U.S. District Court District of Rhode Island (Providence) CIVIL DOCKET FOR CASE #: 1:08−cv−00123−S−DLM

CLOSED

Lopera et al v. Town of Coventry et al Assigned to: Judge William E. Smith Referred to: Magistrate Judge David L. Martin Case in other court: 1st Circuit, 09−02386 Cause: 42:1983 Civil Rights Act Plaintiff Juan Lopera
Plaintiff Marlon Giraldo
Plaintiff Mauricio Espinal
Plaintiff Hector Cardona

Date Filed: 04/07/2008 Date Terminated: 09/11/2009 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Stephen M. Robinson Robinson &Clapham 155 South Main Street Suite 402 Providence, RI 02903−7115 401−331−6565 Fax: 401−331−7888 Email: srobinson@smrobinsonlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Vicki J. Bejma Robinson &Clapham 155 South Main Street Suite 402 Providence, RI 02903 401−331−6565 Fax: 401−331−7888 Email: vbejma@smrobinsonlaw.com ATTORNEY TO BE NOTICED
represented by Stephen M. Robinson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Vicki J. Bejma (See above for address) ATTORNEY TO BE NOTICED
represented by Stephen M. Robinson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Vicki J. Bejma (See above for address) ATTORNEY TO BE NOTICED
represented by Stephen M. Robinson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Vicki J. Bejma (See above for address)

Case: 1:08-cv-123 As of: 09/22/2012 03:55 PM EDT 2 of 8

ATTORNEY TO BE NOTICED

Plaintiff Steven Giraldo

represented by Stephen M. Robinson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Vicki J. Bejma (See above for address) ATTORNEY TO BE NOTICED

Plaintiff William Ruiz

represented by Stephen M. Robinson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Vicki J. Bejma (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Pedro Hernandez

represented by Stephen M. Robinson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Vicki J. Bejma (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Luis E Ardila−Lazaro by and through his parents and next friends, Luis Ardila and Hziel Ardila

represented by Stephen M. Robinson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Vicki J. Bejma (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Brian Ocampo by and through his parent and next friend, Alba Jaramillo

represented by Stephen M. Robinson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Vicki J. Bejma (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Stephen Patino by and through his parent and next friend, Lilian Giraldoo

represented by Stephen M. Robinson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Vicki J. Bejma (See above for address) ATTORNEY TO BE NOTICED

Case: 1:08-cv-123 As of: 09/22/2012 03:55 PM EDT 3 of 8

Plaintiff Joulder Salazar by and through his parents and next friends Youlder Salazar and Martha Duran
Plaintiff Milton Jr Ricuarte by and through his parents and next friends, Milton Ricuarte, Sr. and Elizabeth Rivera

represented by Stephen M. Robinson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Vicki J. Bejma (See above for address) ATTORNEY TO BE NOTICED
represented by Stephen M. Robinson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Vicki J. Bejma (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Town of Coventry by and through its Treasurer, Warren West
Defendant Kevin P Harris in his indiviidual capacity and in his capacity a police officer for the Town of Coventry
Defendant Kevin Kennedy in his individual capacity and in his capacity as a police officer for the Town of Coventry
Defendant

represented by Karen K. Corcoran DeSisto Law 211 Angell St. Providence, RI 02906 401−272−4442 Fax: 401−272−9937 Email: karen@desistolaw.com ATTORNEY TO BE NOTICED
Marc DeSisto DeSisto Law 211 Angell St. Providence, RI 02906 272−4442 Fax: 272−9937 Email: marc@desistolaw.com ATTORNEY TO BE NOTICED
represented by Karen K. Corcoran (See above for address) ATTORNEY TO BE NOTICED
Marc DeSisto (See above for address) ATTORNEY TO BE NOTICED
represented by Karen K. Corcoran (See above for address) ATTORNEY TO BE NOTICED
Marc DeSisto (See above for address) ATTORNEY TO BE NOTICED

Case: 1:08-cv-123 As of: 09/22/2012 03:55 PM EDT 4 of 8

David Nelson in his individual capacity and in his capacity as a police officer for the Town of Coventry

represented by Karen K. Corcoran (See above for address) ATTORNEY TO BE NOTICED
Marc DeSisto (See above for address) ATTORNEY TO BE NOTICED

Defendant
Stephen A Michailides in his individual capacity and in his capacity as a police officer for the Town of Coventry

represented by Karen K. Corcoran (See above for address) ATTORNEY TO BE NOTICED
Marc DeSisto (See above for address) ATTORNEY TO BE NOTICED

Defendant
Ronald E DaSilva individually and in his capacity as Chief of Police for the Town of Coventry

represented by Karen K. Corcoran (See above for address) ATTORNEY TO BE NOTICED

Marc DeSisto (See above for address) ATTORNEY TO BE NOTICED

Defendant
Brian J O'Rourke individually and in his official capacity as the former Chief of Police for the Town of Coventry

represented by Karen K. Corcoran (See above for address) ATTORNEY TO BE NOTICED
Marc DeSisto (See above for address) ATTORNEY TO BE NOTICED

Date Filed 04/07/2008
04/08/2008 04/24/2008 04/24/2008 04/24/2008 05/29/2008

# Docket Text
1 COMPLAINT against Town of Coventry, Kevin P Harris, Kevin Kennedy, David Nelson, Stephen A Michailides, Brian J. O'Rourke, Ronald E DaSilva ( Filing fee $ 350 receipt number 68415.), filed by William Ruiz, Pedro Hernandez, Luis E Ardila−Lazaro, Brian Ocampo, Stephen Patino, Juan Lopera, Joulder Salazar, Milton Jr Ricuarte, Marlon Giraldo, Mauricio Espinal, Hector Cardona, Steven Giraldo. (Attachments: # 1 Civil Cover Sheet)(Baldinelli, Doreen) (Entered: 04/07/2008)
Summons Issued as to Town of Coventry, Kevin P Harris, Kevin Kennedy, David Nelson, Stephen A Michailides, Ronald E DaSilva, Brian J O'Rourke. (Saucier, Martha) (Entered: 04/08/2008)
2 NOTICE of Appearance by Marc DeSisto on behalf of all defendants (DeSisto, Marc) (Entered: 04/24/2008)
3 ANSWER to 1 Complaint, by Town of Coventry, Kevin P Harris, Kevin Kennedy, David Nelson, Stephen A Michailides, Ronald E DaSilva, Brian J O'Rourke.(DeSisto, Marc) (Entered: 04/24/2008)
4 NOTICE of Hearing: Rule 16 Conference set for 6/10/2008 at 9:30 AM in Judge Smith Chambers before Judge William E Smith. (Baldinelli, Doreen) (Entered: 04/24/2008)
REVISED NOTICE of Hearing: Rule 16 Conference RESET for 6/9/2008 AT 11:30 AM in Judge Smith Chambers before Judge William E Smith. (Vorias, Doreen) (Entered: 05/29/2008)

Case: 1:08-cv-123 As of: 09/22/2012 03:55 PM EDT 5 of 8

06/04/2008 06/09/2008 06/09/2008
06/12/2008 06/18/2008
06/30/2008 06/30/2008 06/30/2008
07/17/2008 08/05/2008 08/08/2008 08/08/2008 08/08/2008 08/08/2008 08/08/2008 08/08/2008 08/13/2008
08/25/2008

5 RULE 16 STATEMENT by all plaintiffs. (Bejma, Vicki) (Entered: 06/04/2008)
Minute Entry for proceedings held before Judge William E Smith: Rule 16 Conference held on 6/9/2008. Noele Clapman for Plaintiff. Michael DeSisto for Defendant. (Vorias, Doreen) (Entered: 06/09/2008)
6 PRETRIAL ORDER. All fact discovery must be completed by 11/10/08; dispositive motions must be filed by 11/10/08; pretrial memoranda are due 30 days after a decision on any dispositive motions, or if no dispositive motions are filed, by 11/24/08. So Ordered by Judge William E Smith on 6/9/08. (Marseglia, Patricia) (Entered: 06/09/2008)
7 STIPULATION regarding acceptance of service by all parties. (Bejma, Vicki) (Entered: 06/12/2008)
8 SETTLEMENT CONFERENCE ORDER AND NOTICE OF SETTLEMENT CONFERENCE, ( Settlement Conference set for 7/1/2008 02:00 PM in Magistrate Judge Martin Chambers − Room P−285 before Magistrate Judge David L. Martin.). So Ordered by Magistrate Judge David L. Martin on 6/18/08. (Saucier, Martha) (Entered: 06/18/2008)
9 MOTION for an Extension of Time Continue Settlement Conference, MOTION to Continue by all plaintiffs. Responses due by 7/17/2008 (Bejma, Vicki) (Entered: 06/30/2008)
MOTIONS REFERRED: 9 MOTION for an Extension of Time Continue Settlement Conference MOTION to Continue Motions referred to David L. Martin for determination. (Vorias, Doreen) (Entered: 06/30/2008)
TEXT ORDER granting 9 Motion for Extension of Time ; granting 9 Motion to Continue; Set/Reset Hearings: Settlement Conference RESCHEDULED FOR 7/17/2008 02:00 PM in Magistrate Judge Martin Chambers − Room P−285 before Magistrate Judge David L. Martin.). So Ordered by Magistrate Judge David L. Martin on 6/30/08. (Saucier, Martha) (Entered: 06/30/2008)
Minute Entry for proceedings held before Magistrate Judge David L. Martin: Settlement Conference held on 7/17/2008. (Saucier, Martha) (Entered: 07/17/2008)
10 STIPULATION re 3 Answer to Complaint by all parties. (DeSisto, Marc) (Entered: 08/05/2008)
11 SUMMONS Returned Executed by Luis E Ardila−Lazaro. Town of Coventry served on 4/14/2008, answer due 5/5/2008. (Bejma, Vicki) (Entered: 08/08/2008)
12 SUMMONS Returned Executed by Luis E Ardila−Lazaro. Ronald E DaSilva served on 4/9/2008, answer due 4/29/2008. (Bejma, Vicki) (Entered: 08/08/2008)
13 SUMMONS Returned Executed by Luis E Ardila−Lazaro. Stephen A Michailides served on 4/9/2008, answer due 4/29/2008. (Bejma, Vicki) (Entered: 08/08/2008)
14 SUMMONS Returned Executed by Luis E Ardila−Lazaro. Kevin P Harris served on 4/9/2008, answer due 4/29/2008. (Bejma, Vicki) (Entered: 08/08/2008)
15 SUMMONS Returned Executed by Luis E Ardila−Lazaro. David Nelson served on 4/9/2008, answer due 4/29/2008. (Bejma, Vicki) (Entered: 08/08/2008)
16 SUMMONS Returned Executed by Luis E Ardila−Lazaro. Kevin Kennedy served on 7/30/2008, answer due 8/19/2008. (Bejma, Vicki) (Entered: 08/08/2008)
TEXT ORDER ENTERING 10 Stipulation filed by Town of Coventry, Brian J O'Rourke, Luis E Ardila−Lazaro, Milton Jr Ricuarte, Brian Ocampo, Stephen Patino, Steven Giraldo, William Ruiz, Ronald E DaSilva, Joulder Salazar, Mauricio Espinal, Kevin Kennedy, Stephen A Michailides, Kevin P Harris, Pedro Hernandez, David Nelson, Marlon Giraldo, Hector Cardona, Juan Lopera. So Ordered by Judge William E Smith on 8/13/2008. (Vorias, Doreen) (Entered: 08/13/2008)
17 STIPULATION Enlarging time by all parties. (Bejma, Vicki) (Entered: 08/25/2008)

Case: 1:08-cv-123 As of: 09/22/2012 03:55 PM EDT 6 of 8

08/28/2008
09/30/2008 10/01/2008
10/01/2008 10/01/2008 10/07/2008
11/19/2008 12/11/2008 12/12/2008 12/15/2008 12/23/2008 12/23/2008 12/29/2008 12/29/2008
03/10/2009 03/10/2009 03/27/2009

TEXT ORDER ENTERING 17 Stipulation filed by Town of Coventry, et al.. Plaintiffs shall have up to and including 9/11/2008 to file their objections and responses to the Defendants' Interrogatories. So Ordered by Judge William E Smith on 8/28/2008. (Geile, Wendy) (Entered: 08/28/2008)
18 STIPULATION by all parties. (Bejma, Vicki) (Entered: 09/30/2008)
TEXT ORDER ENTERING 18 Stipulation filed by Town of Coventry, Brian J O'Rourke, Luis E Ardila−Lazaro, Milton Jr Ricuarte, Brian Ocampo, Stephen Patino, Steven Giraldo, William Ruiz, Ronald E DaSilva, Joulder Salazar, Mauricio Espinal, Kevin Kennedy, Stephen A Michailides, Kevin P Harris, Pedro Hernandez, David Nelson, Marlon Giraldo, Hector Cardona, Juan Lopera. Plaintiffs shall have up to and including 10/14/2008 to file their objections and responses to the Defendants' Interrogatories. So Ordered by Judge William E Smith on 10/1/2008. (Geile, Wendy) (Entered: 10/01/2008)
19 NOTICE of Appearance by Karen K. Corcoran on behalf of all defendants (Corcoran, Karen) (Entered: 10/01/2008)
20 Assented MOTION for an Extension of Time Extended Existing Deadline under Existing Pretrial Order by all defendants. Responses due by 10/20/2008 (Corcoran, Karen) (Entered: 10/01/2008)
TEXT ORDER granting 20 Motion for Extension of Time. All fact discovery must be completed by 1/10/09; dispositive motions must be filed by 1/10/09; pretrial memoranda are due 30 days after a decision on any dispositive motions, or if no dispositive motions are filed, by 1/24/09. So Ordered by Judge William E Smith on 10/7/2008. (Geile, Wendy) (Entered: 10/07/2008)
21 MOTION to Amend/Correct Complaint with supporting memo by all plaintiffs. Responses due by 12/8/2008 (Attachments: # 1 Exhibit 1)(Bejma, Vicki) (Entered: 11/19/2008)
Motion Forwarded to Chambers 21 MOTION to Amend/Correct Complaint FORWARDED to Chambers of Judge William E. Smith. (Geile, Wendy) (Entered: 12/11/2008)
TEXT ORDER granting 21 Motion to Amend/Correct. So Ordered by Judge William E Smith on 12/12/2008. (Geile, Wendy) (Entered: 12/12/2008)
22 ANSWER to Complaint (Amended) by Town of Coventry, Kevin P Harris, Kevin Kennedy, David Nelson, Stephen A Michailides, Ronald E DaSilva, Brian J O'Rourke.(DeSisto, Marc) (Entered: 12/15/2008)
23 MOTION for an Extension of Time to Complete Discovery by all plaintiffs. Responses due by 1/9/2009 (Bejma, Vicki) (Entered: 12/23/2008)
Motion Forwarded to Chambers 23 MOTION for an Extension of Time to Complete Discovery FORWARDED to Chambers of Judge William E. Smith. (Geile, Wendy) (Entered: 12/23/2008)
24 AMENDED COMPLAINT against all defendants, filed by Luis E Ardila−Lazaro.(Bejma, Vicki) (Entered: 12/29/2008)
TEXT ORDER granting 23 Motion for Extension of Time to Complete Discovery. All fact discovery must be completed by 3/10/09; dispositive motions must be filed by 3/10/09; pretrial memoranda are due 30 days after a decision on any dispositive motions, or if no dispositive motions are filed, by 3/24/09. So Ordered by Judge William E Smith on 12/29/2008. (Geile, Wendy) (Entered: 12/29/2008)
25 MOTION for Summary Judgment with supporting memo and exhibit by all defendants. Responses due by 3/27/2009 (DeSisto, Marc) (Entered: 03/10/2009)
26 STATEMENT OF UNDISPUTED FACTS by all defendants re 25 MOTION for Summary Judgment. (DeSisto, Marc) (Entered: 03/10/2009)
27 MOTION for an Extension of Time to File Response/Reply as to 25 MOTION for Summary Judgment by all plaintiffs. Responses due by 4/13/2009 (Bejma, Vicki) (Entered: 03/27/2009)

Case: 1:08-cv-123 As of: 09/22/2012 03:55 PM EDT 7 of 8

03/27/2009 04/01/2009 04/27/2009
04/27/2009 04/27/2009 04/28/2009 04/29/2009 05/05/2009 05/26/2009
06/09/2009 06/15/2009 06/24/2009
06/25/2009 07/16/2009 09/11/2009 09/11/2009

Motion Forwarded to Chambers 27 MOTION for an Extension of Time to File Response/Reply as to 25 MOTION for Summary Judgment FORWARDED to Chambers of Judge William E. Smith. (Geile, Wendy) (Entered: 03/27/2009)
TEXT ORDER granting 27 Motion for Extension of Time to File Response/Reply re 25 MOTION for Summary Judgment. Responses due by 4/27/2009. So Ordered by Judge William E Smith on 4/1/2009. (Geile, Wendy) (Entered: 04/01/2009)
28 RESPONSE in Opposition re 25 MOTION for Summary Judgment with supporting memo filed by all plaintiffs. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N)(Bejma, Vicki) (Entered: 04/27/2009)
29 STATEMENT OF DISPUTED FACTS by all plaintiffs. (Bejma, Vicki) (Entered: 04/27/2009)
30 STATEMENT OF UNDISPUTED FACTS by all plaintiffs. (Bejma, Vicki) (Entered: 04/27/2009)
Motion Forwarded to Chambers 25 MOTION for Summary Judgment FORWARDED to Chambers of Judge William E. Smith. (Geile, Wendy) (Entered: 04/28/2009)
NOTICE of Hearing on Motion 25 MOTION for Summary Judgment : Motion Hearing set for 6/3/2009 at 9:30 AM in Courtroom 2 before Judge William E Smith. (Geile, Wendy) (Entered: 04/29/2009)
REVISED NOTICE of Hearing on Motion 25 MOTION for Summary Judgment : Motion Hearing RESET for 5/26/2009 at 11:00 AM in Courtroom 2 before Judge William E Smith. (Geile, Wendy) (Entered: 05/05/2009)
Minute Entry for proceedings held before Judge William E Smith: Motion Hearing held on 5/26/2009 re 25 MOTION for Summary Judgment filed by Ronald E DaSilva, Town of Coventry, Stephen A Michailides, Brian J O'Rourke, Kevin P Harris, David Nelson, Kevin Kennedy. Vicki Bejma for Plaintiff. Marc DeSisto for Defendants. All counsel of record present. Court addresses. Arguments heard as to Defendant's Motion for Summary Judgment; Court takes matter under advisement. Defense Counsel to file a supplemental memo re: the Monel Claim; Plaintiff can file a reply. (Court Reporter Anne Clayton in Courtroom 2 at 11:09 am.) (Smith, Rana) (Entered: 05/26/2009)
31 SUPPLEMENTAL MEMORANDUM by all defendants in support of 25 MOTION for Summary Judgment. (DeSisto, Marc) (Entered: 06/09/2009)
32 STIPULATION by all parties. (Bejma, Vicki) (Entered: 06/15/2009)
33 ORDER Entering 32 Stipulation filed by Town of Coventry, Brian J O'Rourke, Luis E Ardila−Lazaro, Milton Jr Ricuarte, Brian Ocampo, Stephen Patino, Steven Giraldo, William Ruiz, Ronald E DaSilva, Joulder Salazar, Mauricio Espinal, Kevin Kennedy, Stephen A Michailides, Kevin P Harris, Pedro Hernandez, David Nelson, Marlon Giraldo, Hector Cardona, Juan Lopera. So Ordered by Judge William E. Smith on 6/23/09. (Jackson, Ryan) (Entered: 06/25/2009)
Reset Deadlines: Plaintiffs' Response to 31 SUPPLEMENTAL MEMORANDUM by all defendants in support of 25 MOTION for Summary Judgment due by 7/17/2009 (Jackson, Ryan) (Entered: 06/25/2009)
34 RESPONSE to Motion re 25 MOTION for Summary Judgment (Supplemental) filed by all plaintiffs. (Attachments: # 1 Exhibit O, # 2 Exhibit P, # 3 Exhibit Q, # 4 Exhibit R)(Bejma, Vicki) (Entered: 07/16/2009)
35 DECISION AND ORDER granting 25 Motion for Summary Judgment filed by all defendants. So Ordered by Judge William E. Smith on 9/9/09. (Jackson, Ryan) (Entered: 09/11/2009)
36 JUDGMENT in favor of Town of Coventry, Brian J O'Rourke, David Nelson, Kevin Kennedy, Kevin P Harris, Ronald E DaSilva, Stephen A Michailides against Brian Ocampo, Hector Cardona, Joulder Salazar, Juan Lopera, Luis E

Case: 1:08-cv-123 As of: 09/22/2012 03:55 PM EDT 8 of 8

10/05/2009 10/05/2009 10/06/2009 10/06/2009 10/06/2009 10/06/2009 10/16/2009 11/04/2009
04/01/2011 04/01/2011 06/02/2011

Ardila−Lazaro, Marlon Giraldo, Mauricio Espinal, Milton Jr Ricuarte, Pedro Hernandez, Stephen Patino, Steven Giraldo, William Ruiz. So Ordered by Deputy Clerk; Ryan H. Jackson on 9/11/09. (Jackson, Ryan) (Entered: 09/11/2009)
37 NOTICE OF APPEAL as to 35 Order on Motion for Summary Judgment, 36 Judgment, by Luis E Ardila−Lazaro. Appeal Record due by 11/4/2009. (Bejma, Vicki) (Entered: 10/05/2009)
USCA Appeal Fees received $ 455 receipt number 14670002002 re 37 Notice of Appeal filed by Luis E Ardila−Lazaro (Smith, Rana) (Entered: 10/05/2009)
38 APPEAL COVER SHEET Re: 37 Notice of Appeal filed by Luis E Ardila−Lazaro (Smith, Rana) (Entered: 10/06/2009)
39 CLERK'S CERTIFICATE RE: Record on Appeal re 37 Notice of Appeal (Smith, Rana) (Entered: 10/06/2009)
40 Certified and Transmitted Abbreviated Record on Appeal to US Court of Appeals re 37 Notice of Appeal (Smith, Rana) (Entered: 10/06/2009)
USCA Case Number 09−2386 for 37 Notice of Appeal filed by Luis E Ardila−Lazaro. (Smith, Rana) (Entered: 10/07/2009)
41 TRANSCRIPT REQUEST for proceedings held on 5/26/2009 before Judge William E. Smith. (Smith, Rana) (Entered: 10/16/2009)
42 TRANSCRIPT of Defendants' Motion for Summary Judgment filed for date of May 26, 2009 before Judge William E. Smith, re 37 Notice of Appeal. Court Reporter/Transcriber Anne M. Clayton, Telephone number 401−255−2310. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER Redaction Request due 11/25/2009. Redacted Transcript Deadline set for 12/7/2009. Release of Transcript Restriction set for 2/2/2010. (Clayton, Anne) (Entered: 11/04/2009)
43 SLIP OPINION of USCA as to 37 Notice of Appeal filed by Luis E Ardila−Lazaro (Jackson, Ryan) (Entered: 04/05/2011)
44 USCA JUDGMENT as to 37 Notice of Appeal filed by Luis E Ardila−Lazaro; the Judgment of the District Court is AFFIRMED (Jackson, Ryan) (Entered: 04/05/2011)
45 MANDATE of USCA as to 37 Notice of Appeal filed by Luis E Ardila−Lazaro (Urizandi, Nisshy) (Entered: 06/02/2011)

 
 JUAN LOPERA, ET AL., Plaintiffs, Appellants, v.
TOWN OF COVENTRY, ET AL., Defendants, Appellees.
No. 09-2386.
United States Court of Appeals, First Circuit.
April 1, 2011.
Stephen M. Robinson, with whom Vicki J. Bejma and Robinson & Calpham were on brief, for appellants.
Thomas R. Bender, and Hanson Curran LLP, were on brief for Rhode Island Affiliate, American Civil Liberties Union, amicus curiae.
Marc DeSisto for appellees.
Before Lynch, Chief Judge, Selya and Thompson, Circuit Judges.
LYNCH, Chief Judge.
Former members of the Central Falls High School boys soccer team appeal from an entry of summary judgment for the Town of Coventry, Rhode Island, and Coventry police officers in this civil rights case. This dispute arises out of a police search of team members that followed a heated soccer match between Central Falls High School and Coventry High School in Coventry in 2006. Police searched all individual Central Falls team members for items purportedly missing from the Coventry locker room in the presence of an abusive crowd of Coventry students and adults. Though the Central Falls coach told the police he consented to the search of his players, both he and the players assert that he was coerced into doing so by the police.
Lead plaintiff Juan Lopera and other former members of the Central Falls team brought suit for damages and injunctive relief in April 2008, alleging violations of their constitutional rights under the Fourth and Fourteenth Amendments, as well as violations of Rhode Island state law. The defendant police officers asserted a defense of qualified immunity. The district court held that the players failed to raise a genuine issue of material fact as to whether (1) the police officers were not entitled to qualified immunity with respect to their claims under the Fourth Amendment and state privacy law, or (2) the police had engaged in racial discrimination in violation of the Equal Protection Clause or Rhode Island statutes prohibiting racial profiling and intimidation. Lopera v. Town of Coventry, 652 F. Supp. 2d 203, 213-17 (D.R.I. 2009). We affirm.
I.
We review the facts in the light most favorable to Lopera and the other plaintiffs, the parties opposing summary judgment. On September 28, 2006, the Central Falls High School soccer team traveled to Coventry for a match against Coventry High School. Before the game, four or five Central Falls players used the restrooms in the Coventry locker room. They were not alone. A security guard accompanied the boys into the locker room. The locker room is usually open and unlocked and could be easily

accessed, including by unauthorized persons.
The locker room is apparently used by all Coventry teams and recently had been used by Coventry's football team. After the soccer match, a group of approximately twenty football players[1] confronted the Central Falls coach, Robert Marchand, as he walked behind his players toward the team bus. In profane terms, the Coventry students accused the Central Falls players of stealing iPods and cell phones from the Coventry locker room.
The Central Falls players allege that they encountered hostile racism during their match with the Coventry soccer team and during the remainder of their time in Coventry. Central Falls is a racially diverse community, and the Central Falls team consisted entirely of Spanish-speaking Hispanic players, save for one Portuguese player. Coventry, by contrast, is predominantly non-Hispanic and white, and its high school reflected this. The Central Falls players allege that Coventry players uttered racial epithets during the game, calling them "spics" and demanding that they speak English. They allege that Coventry students and adults made similar remarks during the series of events that followed the game.
After the Coventry football players confronted Coach Marchand with the purported thefts, he told them that he would handle the situation. The football players followed him toward the Central Falls bus. Before the group reached the bus, Coach Marchand told the players to wait. Coach Marchand then boarded the bus, where his team was waiting. Coach Marchand informed the players of the accusations and told them that he knew they had not taken the items. Nonetheless, he and an assistant coach searched the players' bags. If an iPod or cell phone was found, Coach Marchand asked for proof that it belonged to the player. The search lasted approximately twenty to twenty-five minutes. Coach Marchand testified that when it was completed, he was "completely satisfied" that his players did not possess the items.
After he completed the search, Coach Marchand left the bus to speak with the Coventry Athletic Director, who was waiting outside. By this time, Coach Marchand testified, a crowd of fifty or sixty Coventry students and adults had gathered around the bus. According to Coach Marchand, members of the crowd yelled that they knew his players had the items. He testified that students and adults in the crowd stated that the players were "from the ghetto," knew how to "hide things" and "lie good," and could not be trusted. The players recounted similar accusations and vitriol, including racial slurs like "spic." At one point, a member of the crowd apparently tried to board the bus to conduct his own search. Coach Marchand testified that members of the crowd demanded a search of his own bags. He also testified that members of the crowd stated that they would not let the Central Falls players leave until the items had been found.
Coach Marchand told the Coventry Athletic Director that he had checked "everything" on the bus, and that his players did not have the purportedly missing items. Coach Marchand also told the Athletic Director that he was welcome to do his own search, which the Athletic Director declined as unnecessary. Coach Marchand testified that as he and the Athletic Director puzzled over how to "satisfy all [the] constituencies here," he began to worry that violence might ensue.
At this point, three or four Coventry police cruisers arrived on the scene with their lights and sirens activated. The police had received calls reporting a supposed ongoing physical altercation. The officers boxed in the Central Falls bus with their cruisers so that it could not move. According to the players, by this time the crowd had

also formed a semi-circle around the bus, blocking its path out of the parking lot.
Once it became clear that no physical altercation was taking place, the police discussed the situation with Coach Marchand and the Coventry Athletic Director. Coach Marchand explained to the officers that the Coventry students had alleged thefts and that his players "were prime suspects." He told the officers that he had searched each student's bags on the bus and did not find the purportedly missing items. Coach Marchand expressed fear of the crowd, asking the police, "what am I going to do, what are they going to do to us[?]" After a pause, Coach Marchand testified, the police responded by asking him if they could search the players. Coach Marchand verbally agreed.
Coach Marchand did not testify that the officers said or did anything coercive. Coach Marchand testified that the officers acted courteously and told unruly members of the crowd to be quiet. According to Coach Marchand, the police "decided their best thing was to [do the] search themselves to appease the masses" who were "crying for our heads." In his testimony, he described his consent as the way to "take the high road, take the safe road," even though he knew his players did not have the items. We must take this testimony as true on this motion for summary judgment.[2] The police testified that the crowd was angry and unruly, consistent with the players' testimony. They also testified that they did not hear any racial epithets from members of the crowd, which is not the plaintiffs' testimony.
After agreeing to the search, Coach Marchand returned to the bus and told his players that the crowd would not let them go until the police searched them. The police then told the players to get off the bus with all of their belongings and line up with their bags between their legs. The players complied, lining up with their backs against the bus. An officer then told the players that if any of them had the missing items, they would be arrested if they did not immediately step forward. When none of the players stepped forward, the officers began a search. Coach Marchand testified that the officers placed each player's bag on the hood of a cruiser and looked through it. A few players testified that some players were also subjected to pat down searches. During the search, the crowd was about six to ten feet away from the players.
The search lasted for about 45 minutes to an hour. The police officers testified that they did not obtain descriptions of the type of iPods or cell phones alleged to be missing, other than that one phone may have been a "flip phone." When the police located an iPod or a cell phone on a player, they required that the player prove that the item belonged to him. In some cases, the players identified items stored on the devices and allowed the officers to search the devices. In other cases, the officers displayed the devices to members of the crowd and asked if they were the missing devices. During the course of the search, members of the crowd alleged that additional items were missing, like books and money.
The players testified that the crowd continued to harass them during the search. One player testified that, during the search, members of the crowd called the players "spics." Another testified that members of the crowd stated that the Central Falls team should not be in Coventry or playing Coventry High School given the race of its players. Members of the crowd photographed the Central Falls students during the search with their cell phone cameras. Marchand testified that although the officers reprimanded unruly members of the crowd during the search, they did not take adequate actions to disperse the crowd or move it away from the bus.
There was testimony that during the search, one Coventry officer told one of the players that he thought the search was "stupid" because the coach had already

searched the players and because a security guard had accompanied the players in the locker room. Another officer, hearing the comment, laughed. The police required all the players to wait outside the bus until every player had been searched. The search did not produce any of the missing items. After it was completed, the police escorted the bus out of town in their cruisers.
Lopera and other members of the Central Falls team filed suit in April 2008 against the Town of Coventry and several individual Coventry police officers under 42 U.S.C. § 1983 (§ 1983) and Rhode Island state law. Under § 1983, the players alleged deprivations of their Fourth Amendment right to be free from unreasonable searches and seizures, as well as their Fourteenth Amendment rights to due process of law and equal protection of the law.[3] Under Rhode Island state law, the players alleged violation of statutes that forbid invasion of privacy, racial profiling, and ethnic intimidation. R.I. Gen. Laws § 9-1-28.1; id. § 31-21.2; id. § 9-1-35.
The district court granted summary judgment for the defendants on all counts. First, it held that the officers were entitled to qualified immunity with respect to the Fourth Amendment and state privacy claims because (1) it was not unreasonable for the officers to believe that Coach Marchand had power to consent to the search, and (2) coercion did not vitiate Coach Marchand's consent. Second, it held that the players did not introduce sufficient evidence to support a finding that the police engaged in racial discrimination in violation of the Equal Protection Clause or Rhode Island's statutes prohibiting racial profiling and ethnic intimidation. The district court also held on independent grounds that the players had not introduced material facts to support their claims of supervisory and municipal liability.
II.
On appeal, the players make two arguments. First, they argue that the officers were not entitled to qualified immunity for the claims under the Fourth Amendment and state privacy law because (1) a reasonable officer would have believed that Coach Marchand did not have authority to consent for his players, and (2) a reasonable officer would have believed that Coach Marchand's consent was coerced. Second, they argue that they set forth material facts to support the reasonable inference that the actions of the officers were impermissibly motivated by race in violation of the Equal Protection Clause and Rhode Island state law. The players do not challenge the district court's rulings on municipal and supervisory liability.
In their answer to the players' complaint, the defendant officers asserted qualified immunity against all claims. In asserting this defense before the district court and before this court, the officers focused their argument on whether it was clearly established that Coach Marchand could consent on behalf of his students in loco parentis. The district court analyzed this question in a qualified immunity framework, but it appeared to address the players' remaining claims outside of that framework. Given that the officers have raised a qualified immunity defense to all of the players' claims, we address each of the players' claims in the qualified immunity framework.
This court reviews grants of summary judgment de novo. Saccucci Auto Group, Inc. v. Am. Honda Motor Co., 617 F.3d 14, 20 (1st Cir. 2010). We must make all reasonable inferences in favor of the non-moving party and may reverse only if "the evidence on record `is sufficiently open-ended to permit a rational factfinder to resolve the issue in favor of either side.'" Maymi v. Puerto Rico Ports Auth., 515 F.3d 20, 25 (1st Cir. 2008) (quoting Nat'l Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 735 (1st Cir. 1995)). This standard of review applies to grants of summary judgment on grounds of

qualified immunity. See Kelley v. LaForce, 288 F.3d 1, 4 (1st Cir. 2002). When a defendant moves for summary judgment on the basis of qualified immunity, the plaintiff bears the burden of showing infringement of a federal right. Quintero de Quintero v. Aponte-Roque, 974 F.2d 226, 228 (1st Cir. 1992).
A. The Doctrine of Qualified Immunity
Qualified immunity "protects government officials `from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Pearson v. Callahan, 129 S. Ct. 808, 815 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). This circuit follows a two-step analysis under Pearson in discerning whether defendants are entitled to qualified immunity. We ask "(1) whether the facts alleged or shown by the plaintiff make out a violation of a constitutional right; and (2) if so, whether the right was `clearly established' at the time of the defendant's alleged violation." Maldonado v. Fontanes, 568 F.3d 263, 269 (1st Cir. 2009).
The Supreme Court has held that it is not mandatory for courts to follow this two-step test sequentially. Pearson, 129 S. Ct. at 818-21; see also Maldonado, 568 F.3d at 269-270. A finding that a right was not clearly established at the time of the alleged violation is sufficient to warrant a finding of qualified immunity. See Pearson, 129 S. Ct. at 822. In some cases "discussion of the first prong of the qualified immunity analysis will result `in a substantial expenditure of scarce judicial resources on difficult questions that have no effect on the outcome of the case.'" Maldonado, 568 F.3d at 270 (quoting Pearson, 129 S. Ct. at 818).
In this case, these considerations counsel that we consider the second prong of the analysis and go no further. That prong, we have held, has two aspects: that both (1) the legal contours of the right in question and (2) the particular factual violation in question would have been clear to a reasonable official. Id. at 269. Together, these two factors ask whether a reasonable officer, similarly situated, would have believed that his conduct did not violate the Constitution. Harlow, 457 U.S. at 818-19; Philip v. Cronin, 537 F.3d 26, 34 (1st Cir. 2008).
The qualified immunity defense "is designed to protect `all but the plainly incompetent or those who knowingly violate the law.'" Morse v. Frederick, 551 U.S. 393, 429 (2007) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). A finding of qualified immunity is warranted if "a reasonable officer could have believed his conduct was lawful." Olmeda v. Ortíz-QuiZonez, 434 F.3d 62, 65 (1st Cir. 2006). Such a finding is not warranted if "no reasonable officer could believe" that his conduct was lawful. Groh v. Ramirez, 540 U.S. 551, 564 (2004). Put another way, immunity will issue when "officers of reasonable competence could disagree" on the lawfulness of an action, but it will not issue if "it is obvious that no reasonably competent officer would have concluded" that the action was lawful. Malley, 475 U.S. at 342.
This is an objective test; it does not look to the defendants' subjective beliefs concerning the unlawfulness of their conduct. Philip, 537 F.3d at 34. A "determination of objective reasonableness," however, "`will often require examination of the information possessed' by the defendant officials." Kelley, 288 F.3d at 7 (quoting Anderson v. Creighton, 483 U.S. 635, 641 (1987)).
This objective test does not establish that "an official action is protected by qualified immunity unless the very action in question has previously been held unlawful." Anderson, 483 U.S. at 640. The Supreme Court has made clear that "officials can still

be on notice that their conduct violates established law even in novel factual circumstances." Hope v. Pelzer, 536 U.S. 730, 741 (2002) (citing United States v. Lanier, 520 U.S. 259 (1997)). Nonetheless, unlawfulness must be apparent in light of pre-existing law at the time of the alleged violation. Anderson, 483 U.S. at 640. The content of clearly settled law and the belief of a reasonable officer under the circumstances are questions appropriately addressed by courts before trial, where possible. See Hunter v. Bryant, 502 U.S. 224, 227-28 (1991); Cox v. Hainey, 391 F.3d 25, 29 (1st Cir. 2004).
We divide our discussion in this case between the players' claims under the Fourth Amendment and state privacy law and their claims under the Equal Protection Clause and state laws forbidding racial profiling and ethnic harassment.
B. Fourth Amendment and State Privacy Claims
In their claims under the Fourth Amendment and the state privacy statute, the players give two grounds to defeat qualified immunity. First, they argue that all officers of reasonable competence would have believed that Coach Marchand did not have authority to consent on behalf of the players. Second, they argue that all officers of reasonable competence would have believed that coercion vitiated Coach Marchand's purported consent to the search in this case.
The district court focused primarily on the players' first argument. It held that the players failed to introduce a material fact showing it was clearly established that Coach Marchand could not consent on their behalf under the circumstances. Lopera 652 F. Supp. 2d at 213-16. In so finding, the district court relied on the apparent uncertainty of prevailing Supreme Court doctrine governing in loco parentis searches in schools. Id. As to the players' second argument, the district court held that Coach Marchand's consent was voluntary because he "understood the situation," id. at 216, and gave consent "after careful and deliberate thought," id. at 217. The district court did not address whether this would have been clear to the officers under the circumstances, nor whether it was clearly established that coercion vitiates consent.
1. Coach Marchand's Authority to Consent
We may quickly dispose of the players' first argument, which does not require analysis of the intricacies of the in loco parentis doctrine. Under the facts alleged by the players, a reasonable officer could have concluded that Coach Marchand had authority to consent to a search of his students. The search did not take place at Central Falls High School, but rather on a trip away from school over which Coach Marchand was undisputedly in charge. When the officers arrived, Coach Marchand told them that he had already conducted his own search of his students. To arrive at the conclusion that Coach Marchand could not consent, an officer would have had to question Coach Marchand's authority to perform the first search and, by extension, Coach Marchand's authority to consent to a second search by the police.
We cannot say that no officer of reasonable competence could have reached the conclusion that Coach Marchand had authority to consent. As the players argue, the Supreme Court has recognized limits on the in loco parentis authority of school officials. New Jersey v. T.L.O., 469 U.S. 325, 336-37 (1985). To defeat a finding of qualified immunity, however, the players must identify authority sufficiently

particularized that the unlawfulness of an act would have been apparent to all officers of reasonable competence. Wilson v. Layne, 526 U.S. 603, 615 (1999). Subsequent decisions make clear that T.L.O. has not eliminated a school official's in loco parentis power to consent on behalf of his students. See Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 654-56 (1995). The players do not identify a sufficiently particularized decision of this court or the Supreme Court that places Coach Marchand's consent clearly beyond his authority under the facts they allege.
2. The Validity of Coach Marchand's Consent
The players' second argument concerning the validity of Marchand's consent requires more discussion. There is no dispute that all officers of reasonable competence would have known that coercion vitiates consent to a search under the Fourth Amendment. See United States v. Vanvliet, 542 F.3d 259, 264 (1st Cir. 2008). Under the Fourth Amendment, consent may "not be coerced, by explicit or implicit means, by implied threat or covert force." Schneckloth v. Bustamonte, 412 U.S. 218, 228 (1973). As to the other considerations relevant to the validity of Coach Marchand's consent, we reiterate that we may only deny qualified immunity if "it is obvious that no reasonably competent officer would have concluded" that the action was lawful. Malley, 475 U.S. at 342. If "officers of reasonable competence could disagree" on the lawfulness of an action, we must grant qualified immunity. Id.
We first dispose of a legal question about the scope of the facts to be considered. The officers argue that the law under Schneckloth was not clearly established; they contend that it was the crowd, not the officers, who created any coercive atmosphere and that the coercion must "emanat[e] from the police officers themselves rather than any subjective or outside influence." Citing the Supreme Court's decision in Colorado v. Connelly, 479 U.S. 157 (1986), the officers argue that the examination of coercion must focus solely on the acts of the officials requesting to perform the search. We reject this argument for two different reasons, but nonetheless find for other reasons that defendants are entitled to qualified immunity.
First, Connelly is not clearly established law limiting Schneckloth. Second, taking the facts in the light most favorable to the plaintiffs, the crowd was not the only source of potential coercion. It is clearly established law under Schneckloth that in considering the validity of consent, all the surrounding circumstances must be considered. Schneckloth, 412 U.S. at 227; Vanvliet, 542 F.3d at 264. Neither the Supreme Court nor this court has extended the rule in Connelly, a decision under the Due Process Clause of the Fourteenth Amendment, to Fourth Amendment consent cases.
In Connelly, the defendant claimed that because he heard a "voice of God" telling him to confess, his confession in police custody was coerced and thus invalid. Connelly, 479 U.S. at 170-171. The Supreme Court held a defendant's mental condition "by itself and apart from its relation to official coercion" cannot "dispose of the inquiry into constitutional `voluntariness'" under the Fourteenth Amendment's Due Process Clause. Id. at 164. It concluded that "coercive police activity is a necessary predicate to the finding that a confession is not `voluntary'" within the meaning of that clause. Id. at 167. The Court did not address Fourth Amendment searches.
We are unaware of any published circuit court decision that applies this standard for voluntariness of a confession to questions of consent under the Fourth Amendment. But see United States v. Quezada, No. 91-5004, 1991 WL 191402 (4th Cir. Oct. 24,

1991) (applying Connelly to a Fourth Amendment search in an unpublished decision). At least two circuits have expressly declined to do so. United States v. Montgomery, 621 F.3d 568, 571-72 (6th Cir. 2010); Tukes v. Dugger, 911 F.2d 508, 516 & n.13 (11th Cir. 1990). This circuit has continued to apply the requirements in Schneckloth for consent to a Fourth Amendment search. See Vanvliet, 542 F.3d at 264. Moreover, we are unaware of any lower court decision in this circuit that extends Connelly to Fourth Amendment searches. See Pearson, 129 S. Ct. at 823.
Having rejected the defendants' efforts to narrow the focus of inquiry, we turn to the articulation of the clearly established law. In Schneckloth, the Supreme Court held that coercion must be discerned by examining "all the surrounding circumstances," including "subtly coercive police questions" and "the possibly vulnerable subjective state of the person who consents." Schneckloth, 412 U.S. at 229. In Ohio v. Robinette, 519 U.S. 33 (1996), the Court repeated that "[t]he Fourth Amendment test for a valid consent to search is that the consent be voluntary, and `[v]oluntariness is a question of fact to be determined from all the circumstances.'" Id. at 40 (alteration in original) (quoting Schneckloth, 412 U.S. at 248-49).
We have held that voluntariness of consent depends on considerations including, but not limited to, "(i) the consenter's age, education, past experiences, and intelligence; (ii) whether law enforcement officials advised the consenter of his constitutional right to refuse consent; (iii) the length and conditions of the consenter's detention and/or questioning; and (iv) law enforcement officials' use of any inherently coercive tactics." Vanvliet, 542 F.3d at 264 n.2 (citing Schneckloth, 412 U.S. at 226).
A consent is coerced when an individual's "will ha[s] been overborne and his capacity for self-determination critically impaired" such that he does not face an "essentially free and unconstrained choice." United States v. Watson, 423 U.S. 411, 424 (1976) (quoting Schneckloth, 412 U.S. at 225) (internal quotation marks omitted). It is seldom the case that "a single coercive element will, standing alone, be enough to invalidate a consent." W. LaFave, Search and Seizure § 8.2(b), at 62 (4th ed. 2004). An officer's failure to inform an individual of her right to refuse consent to a search does not necessarily render her consent to such a search coerced. See Robinette, 519 U.S. at 39-40. Nor is a consent to a search given in police custody necessarily coerced. Watson, 423 U.S. at 424.
Two Supreme Court cases are particularly instructive here, but are not cited to us by either side. The first is United States v. Drayton, 536 U.S. 194 (2002). In Drayton, the Supreme Court held that among the relevant factors for assessing coercion is whether the officer requesting the search "indicated a command to consent to the search." Id. at 206. The defendant's consent, the Court held, was not a product of coercion because the officer had provided him with "no indication that he was required to consent to the search." Id. The officers had asked whether the defendant objected to the search, "thus indicating to a reasonable person that he or she was free to refuse." Id. The Court noted that there had been "no application of force, no intimidating movement, no overwhelming show of force, no brandishing of weapons, no blocking of exits, no threat, no command, not even an authoritative tone of voice."[4] Id. at 204.
The second is Florida v. Bostick, 501 U.S. 429 (1991). In Bostick, the Court addressed whether an officer's request to search a passenger's bags on a commercial bus constituted an unlawful seizure under the Fourth Amendment. Id. at 431. Although on its face Bostick is about whether the defendant was seized, it is relevant. The Supreme Court's assessment of whether the police in Bostick seized the defendant turned on whether they had coerced him to consent to a search. Id. at 435-38. It held that the appropriate inquiry was whether, under the circumstances, "a reasonable

person would feel free to decline the officers' requests or otherwise terminate the encounter." Id. at 436. The Court held that "[w]here the encounter takes place is one factor, but it is not the only one." Id.
Against this articulation of the clearly established law, we now turn to the facts of this case, taking all reasonable inferences in favor of the players. The defendants have largely accepted the plaintiffs' version of the facts for purposes of this summary judgment motion, but say that they would present their different version of the facts at trial.
The players point to three factual circumstances in arguing that no reasonably competent officer would have concluded that Coach Marchand's consent was valid. First, they note that Coach Marchand explicitly invoked his fear of the crowd, asking the officers, "what are they going to do to us[?]" shortly before the officers requested that Coach Marchand consent to a search of the players. Second, the players note that the officers did not actively seek to disperse the crowd, but only told the crowd to quiet down. Third, they note that the officers boxed in the Central Falls bus, which effectively ensured that it could not leave until the police decided it could leave.
Although Coach Marchand may have subjectively felt coerced by the police and/or the crowd to give his consent, that is not the focus of the qualified immunity inquiry. Rather, the focus is on the viewpoint of an objectively reasonable officer. We cannot say that no reasonably competent officer would have concluded that Coach Marchand's consent was valid under clearly established Supreme Court case law. The players do not even allege that the officers commanded Coach Marchand to consent to a search, and the facts do not suggest that they did. Nor do the players allege that the officers threatened force or acted in an intimidating manner during their exchange with Coach Marchand and the Coventry Athletic Director. Indeed, Coach Marchand testified that the officers requested the search politely and acted courteously and professionally throughout their exchanges with him. The players do not even allege that the officers spoke to Coach Marchand with "an authoritative tone of voice" when they requested to do a search. See Drayton, 536 U.S. at 204.
Rather, the players' evidence depicts a difficult situation in which Coach Marchand faced a genuine choice between imperfect solutions. He could either consent to the search or require the police to pursue other legal paths if they wished to conduct one. As Coach Marchand said, it was his decision and he decided "to take the high road, to take the safe road." Coach Marchand may have felt that the best way for him to get his players home safely and promptly was to submit to a search. He knew of the hostile crowd and was convinced that the players did not possess any of the purportedly missing items. By the time the police arrived, the Central Falls bus was already late going home, and Coach Marchand could have reasonably believed that school administrators and the players' parents were or would soon become worried about their whereabouts.
These circumstances do not establish that all reasonably competent officers would have concluded that Coach Marchand's will had been overborne or that his capacity for self-determination was critically impaired. See Watson, 423 U.S. at 424. Indeed, Coach Marchand testified that he "debated" telling the officers to get a search warrant, but rejected that option. Instead, he concluded that his role as coach was to ensure first and foremost that the players got home safely. A choice between undesirable options does not itself mean the choice was coerced and the consent given was involuntary. Like the officers in Drayton, the officers posed their search request as a question and did not make any showing that it could not be refused. We cannot say that a reasonably competent officer could only have concluded that Coach Marchand

had no option but to consent due to coercion.
The factual details the players emphasize, addressed within the totality of the circumstances, do not demand a contrary conclusion. Coach Marchand's question, "what are they going to do to us[?]," would have alerted reasonable officers of his concerns about the situation. It may also be that reasonable officers would have recognized that the perceived threat from the crowd influenced Coach Marchand's decision. This does not mean, however, that all officers of reasonable competence would have concluded that Coach Marchand's will had been overborne. As Coach Marchand testified, he considered refusing the search and telling the officers to get a warrant.
As to the officers' efforts to subdue the crowd, by the time the officers spoke with Coach Marchand, they had restrained the crowd, told crowd members to cut it out, and established a buffer between the crowd and the bus. It may be that the officers would have done better to disperse the crowd altogether. This does not mean, however, that the officers are not entitled to immunity. The officers could have reasonably thought that they made clear that they would prevent the crowd from harming the players as of the time they asked Coach Marchand to consent to the search.
As to the police cruisers, the officers parked in a way that boxed in the bus before they became aware of the specific situation unfolding around it. The record is silent on whether alternatives were available. More importantly, the officers did not convey to Coach Marchand that they would not move their cruisers until he agreed to a search. Nor were they asked to move the cruisers.
It is true that in a case concerning an involuntary seizure of a person, the Supreme Court used language that the police offered the person "no choice." Kaupp v. Texas, 538 U.S. 626, 631 (2003). But the circumstances there were a far cry from the choice Coach Marchand faced. In Kaupp an adolescent was rousted out of bed in the middle of the night wearing nothing but underwear, placed in handcuffs, and taken to a crime scene on his way to be interviewed at law enforcement headquarters. His statement of "Okay" in response to "we need to go and talk" was clearly not consent. See id. at 631-32. Nothing of that sort happened here, nor would a reasonable officer have thought it did.
On the plaintiffs' version of the facts, we cannot say that all officers of reasonable competence would have concluded that Coach Marchand's consent to the search was invalid. It is not enough that Coach Marchand described his consent to the search as coerced; coercion has a specific legal meaning. Even if Coach Marchand felt his consent was coerced within that specific legal meaning, this would not be sufficient to overcome the officers' assertion of qualified immunity. While a jury might find that Coach Marchand subjectively believed his consent was coerced, that is not the issue here; we must look to the view of the reasonable officer. See Barton v. Clancy, 632 F.3d 9, 30 (1st Cir. 2011). Like Coach Marchand, the police officers faced a tough decision in a difficult situation. Whether the officers made the correct decision is not the point.
C. Equal Protection and State Racial Discrimination Claims
The players argue that they have raised material facts showing that the officers'

actions were impermissibly motivated by race in violation of the Equal Protection Clause and Rhode Island state laws. There are disputes over whether the legal contours of the rights in question would have been clear to a reasonable officer and over whether a reasonable officer would have perceived a violation of recognized rights under the factual circumstances present in this case. We begin with the rights in question and then assess the factual circumstances.
Our analysis under the Equal Protection Clause looks to "(1) whether the appellant was treated differently than others similarly situated, and (2) whether such difference was based on an impermissible consideration, such as race." Macone v. Town of Wakefield, 277 F.3d 1, 10 (1st Cir. 2002). A plaintiff must show that the defendant "selected or reaffirmed a particular course of action at least in part because of, not merely in spite of, its adverse effects" upon a protected group. In re Subpoena to Witzel, 531 F.3d 113, 119 (1st Cir. 2008) (quoting Wayte v. United States, 470 U.S. 598, 610 (1985)) (internal quotation marks omitted). Such intent may be "inferred from the totality of the relevant facts." Donahue v. City of Boston, 371 F.3d 7, 14 (1st Cir. 2004) (quoting Washington v. Davis, 426 U.S. 229, 242 (1976)).
The players assert that this analysis forbids official actions that "effectuate the known discriminatory intention of others." Citing United States v. Yonkers Bd. of Educ., 837 F.2d 1181 (2d Cir. 1987), they argue that a police search that works to effectuate such discriminatory intentions voiced by a crowd violates the Equal Protection Clause. See id. at 1226. We read that decision more narrowly; in any event, it is insufficient to make plaintiffs' proposition into clearly established law. The players do not cite any cases from this court or the Supreme Court finding a violation of the Equal Protection Clause in the absence of purposeful discrimination on the part of the relevant officials. Accordingly, we hold that the players have not shown that it is clearly established that acts that effectuate the known discriminatory intent of others, without more, violate the Equal Protection Clause. See Davis, 426 U.S. at 241-42; McGuire v. Reilly, 386 F.3d 45, 63 (1st Cir. 2004).
Under our clearly established equal protection analysis, the players have failed to demonstrate that all officers of reasonable competence would have believed that the request for a search of the players produced differential treatment. Given that the public had access to the unlocked Coventry locker room, the players argue that the officers had no more reason to search them than they had to search the crowd. Indeed, they argue that the officers had even less reason to search the players because the officers knew Coach Marchand had already searched them and a security guard had accompanied them into the locker room. These claims belie the undisputed fact that Coach Marchand identified the players as the "prime suspects" in his discussion with the police. Even if Coach Marchand merely intended to convey the crowd's opinion, members of the crowd had not been accused of theft.
Even if we assume that the officers had no more reason to search the players than the crowd, the players fail to produce sufficient evidence of discriminatory intent to defeat qualified immunity. This court has noted that discriminatory animus seldom "wears its garb openly" and more often comes "masked" in "subtle forms." Soto v. Flores, 103 F.3d 1056, 1067 n.12 (quoting Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1082 (3d Cir. 1996)). Nonetheless, to survive summary judgment, the non-moving party must make more than "conclusory allegations, improbable inferences, or unsupported speculation." Pineda v. Toomey, 533 F.3d 50, 53 (1st Cir. 2008). A nonmoving party must "set forth specific facts showing that there is a genuine issue for trial." Id. at 53-54 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986)).
The players do not present such specific facts on the issue of racial animus in this

case. They point to the alleged racial slurs made by the crowd and claim that the officers should have ordered the crowd to disperse or move farther away from the bus. They also claim that the officers sought to incite the crowd by displaying some of the players' iPods and cell phones. But testimony from both Coach Marchand and the players contradicts the inference that racial animus motivated the officers. No officer uttered a racial slur. It is uncontested that the officers acted courteously and told members of the crowd to stop jeering at the players. There is no evidence that all officers of reasonable competence would have believed the search was undertaken because of the national origin or race of the players.
Given this conclusion, the players also cannot defeat the officers' qualified immunity defenses against their claims under Rhode Island's Racial Profiling Prevention Act and Ethnic Intimidation Statute. The Racial Profiling Prevention Act covers "disparate treatment of an individual on the basis, in whole or in part, of the racial or ethnic status of such individual," with an exception not relevant here. R.I. Gen. Laws § 31-21.2-3. The Ethnic Intimidation Statute covers behavior "which would reasonably be construed as intended to harass or intimidate [a] person because of his or her race." R.I. Gen. Laws § 9-1-35(a). For the reasons stated above, the players have not raised a genuine issue of material fact that satisfies either of these standards.
III.
The record does demonstrate, regrettably, that the players were subject to ethnic animosity from Coventry inhabitants. Although the plaintiffs do not raise sufficiently material facts to survive summary judgment, the Town and its voters may wish to take steps to prevent recurrences of such behavior.
The judgment of the district court is affirmed.
Opinion Dissenting in Part Follows
THOMPSON, Circuit Judge, (Dissenting in part).
I agree with my colleagues that a reasonable officer could have believed that Coach Marchand had in loco parentis authority to consent to the search of the players and that their equal protection claims must fail. My colleagues and I part company, however, on the issue of qualified immunity. Because I cannot subscribe to the majority's determination that the officers were entitled to qualified immunity because they could reasonably have believed that Coach Marchand voluntarily consented to the search of his students, I respectfully dissent.
I.
The appellants, a team of young Hispanic soccer players from Central Falls, Rhode Island were subjected to shockingly disgraceful and humiliating conduct by the police and their fellow citizens alike while visiting another high school in Coventry, Rhode Island.[5] After playing a tense game against Coventry's team, the Central Falls players were surrounded by a mob seething with racial animosity and casting false accusations of theft. When the police arrived and observed the crowd's obstruction of the bus, they parked their cruisers in front of and behind the Central Falls team's bus, trapping them with their antagonists. Then, rather than take any action to meaningfully investigate any accusations or pacify the crowd, which continued to simmer

menacingly, the officers questioned the Central Falls team and sought its coach's permission to search their belongings.
My colleagues think that a reasonable officer would be unaware of the duress this state of affairs would inspire in the team's coach. In my view, however, the officers' request of Coach Marchand while he was surrounded by an angry mob and unable to depart with his players left little room for choice. He was subjected to coercion which, though subtler than a peremptory command and more courteous than the irate mob, could hardly be plainer. This coercion vitiated any consent he could give, rendering the subsequent search unlawful.
The basic factual scenario is not largely disputed by the parties and my colleagues and I recognize that all reasonable inferences drawn from the facts are to be construed in the plaintiffs' favor.[6] Maj. Op. at 3. The officers invoked qualified immunity as a defense to their actions. My colleagues set out the relevant law, see Maj. Op. at 11-14, which I accept and reprise briefly.
II.
"Qualified immunity balances two important interests — the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably." Pearson v. Callahan, 129 S. Ct. 808, 815 (2009).
To defeat the immunity, the players must show that (1) the officers "violated [their] constitutionally protected right" and (2) "the particular right . . . was clearly established at the time of the violation." Raiche v. Pietroski, 623 F.3d 30, 35 (1st Cir. 2010). Further, "in applying the second prong, we must consider two subsidiary issues: (a) the clarity of the law in general at the time of the alleged violation; and (b) the clarity of the law as applied to the case"—simply put, we ask "whether a reasonable [officer] in the defendant's shoes `would have understood that his conduct violated the [players'] constitutional rights.'" Id. at 35-36 (quoting Maldonado v. Fontanes, 568 F.3d 263, 269 (1st Cir. 2009)). In undertaking this inquiry, we do not consider the defendants' subjective beliefs concerning the unlawfulness of their conduct. See Philip v. Cronin, 537 F.3d 26, 34 (1st Cir. 2008). Instead, this inquiry is based on an objective test— what a reasonable officer would have known. Id. Nonetheless, "[a] determination of objective reasonableness `will often require examination of the information possessed' by the defendant officials." Kelley v. LaForce, 288 F.3d 1, 7 (1st Cir. 2002) (quoting Anderson v. Creighton, 483 U.S. 635, 641 (1987)).
In granting qualified immunity to the officers, my colleagues analyzed only the second prong of the test, as permitted by Pearson. Maj. Op. at 12. Because I would deny qualified immunity, however, I must address both aspects of the analysis.
A.
The first prong of the qualified immunity test asks whether a violation of constitutional rights actually occurred. Raiche, 623 F.3d at 35. It has long been recognized that the Fourth Amendment bars all warrantless searches "subject only to a few specifically established . . . exceptions" such as the presence of probable cause, exigent circumstances, or valid consent. See Katz v. United States, 389 U.S. 347, 357, 357 n.19, 358 n.22 (1967). Accordingly, absent such an exception to the warrant requirement the officers' search of the Central Falls players was improper and a clear

violation of the players' constitutional right to be free from warrantless searches.
The officers rely only upon Coach Marchand's consent to validate their search. Of course, the consent must have been voluntarily given. Bumper v. North Carolina, 391 U.S. 543, 548 (1968). That is, it must not have been the product of "duress or coercion," Schneckloth v. Bustamonte, 412 U.S. 218, 248 (1973), or intimidation, Moran v. Burbine, 475 U.S. 412, 421 (1986), either express or implied. See United States v. Vanvliet, 542 F.3d 259, 264-65 (1st Cir. 2008). Because, as discussed below, I believe that a reasonable officer would have known that Coach Marchand's consent to the search of his players was coerced, the first prong of the qualified immunity test is easily satisfied: there was an actual violation in the form of an unconstitutional search.
B.
The second prong of the qualified immunity inquiry asks whether it was clear, both legally and factually, that the officers' search was non-consensual. Raiche, 623 F.3d at 35. My colleagues and I agree that it is clearly established under the Fourth Amendment that voluntary consent is required to validate a suspicionless, warrantless search and that "all officers of reasonable competence would have known that coercion vitiates consent to a search under the Fourth Amendment." Maj. Op. at 17. We also agree that the presence of coercion is determined by an open-ended test that considers "`all the surrounding circumstances,' including `subtly coercive police questions' and `the possibly vulnerable subjective state of the person who consents.'" Maj. Op. at 19 (quoting Schneckloth, 412 U.S. at 229). Where we disagree is whether the facts of this particular case, applied to that law, clearly make out a violation of the players' Fourth Amendment rights. Ultimately, my colleagues "cannot say that all officers of reasonable competence," confronted with the facts of this case, "would have concluded that Coach Marchand's consent to the search was invalid." Maj. Op. at 26. On the contrary, I believe that the players' rights were violated, and that a reasonable officer would have concluded that the search was unconstitutional.
1.
In analyzing the second prong of the qualified immunity test we must ask whether a reasonable officer in the defendants' position would have known that Coach Marchand felt coerced into consenting to the search. The central question, then, is how the reasonable officer would have assessed the voluntariness of Marchand's consent.
As we have explained, "[v]oluntariness is a question of fact that turns on [a] comprehensive assessment of the totality of the circumstances attending the interaction between [the individual] and the searching officers." Vanvliet, 542 F.3d at 264. Threats, intimidation, and coercion are all factors to consider in analyzing the totality of the circumstances, but they are not the only ones. See, e.g., United States v. Pérez-MontaZez, 202 F.3d 434, 438 (1st Cir. 2000). Indeed, in considering the totality of the circumstances, no single coercive element will usually suffice to end the analysis. See Maj. Op. at 20 (citing W. LaFave, Search and Seizure § 8.2(b), at 62 (4th ed. 2004)). Instead, we must look to the circumstances surrounding Marchand's consent and determine whether they establish that a reasonable officer could have concluded that he gave it voluntarily. See United States v. Twomey, 884 F.2d 46, 51 (1st Cir. 1989) (explaining that we must look to "all the circumstances surrounding the securing of the consent" when determining the voluntariness thereof).

Moreover, the determination of an individual's voluntariness in consenting to a search is a subjective, fact-intensive endeavor that "turns not on whether a `reasonable' person in the [individual's] position would have felt compelled to consent to a police officer's request to search, but, rather, on whether the [individual] [him]self actually felt compelled to consent." United States v. Hall, 969 F.2d 1102, 1106 (D.C. Cir. 1992); accord Schneckloth, 412 U.S. at 226; Twomey, 884 F.2d at 51. Consent is coerced when an individual's "will ha[s] been overborne and his capacity for self-determination critically impaired" to the point that he does not face an "essentially free and unconstrained choice." United States v. Watson, 423 U.S. 411, 424 (1976)(internal quotation marks omitted).
Throughout this inquiry, we must recall that on summary judgment, when assessing the factual circumstances in which an individual consented to a search and the possible assumptions a reasonable officer might have made about the corresponding voluntariness, "we are required to draw every reasonable inference in favor of the nonmoving party" — here the Central Falls players. Dennis v. Osram Sylvania, Inc., 549 F.3d 851, 858 (1st Cir. 2008); see also Vera v. McHugh, 622 F.3d 17, 27 n. 11 (1st Cir. 2010) (recalling "our duty to take the facts in the light most favorable to the nonmoving party on summary judgment"). This is a tough case, but in my view the balance tips against qualified immunity.
2.
Having set out the relevant law, I turn now to the factual analysis.
The majority justifies its determination that Marchand's consent was valid in large part based on United States v. Drayton, 536 U.S. 194 (2002). In Drayton, three police officers boarded a bus as part of a routine drug and weapons interdiction. One officer was at the front of the bus, facing the rear, and another officer was at the rear of the bus, facing forward. The third officer walked down the bus aisle from the back to the front, stopping to speak with passengers along the way. Neither the aisle nor the front exit was ever blocked. Passengers who declined to speak with the officer or who chose to exit the bus were allowed to do so. As the officer approached Drayton's seat, he showed his badge and stated that his purpose on the bus was to look for drugs and guns. The officer asked if Drayton and his companion, Brown, had any bags. They answered affirmatively, so the officer asked for permission to search the bags. Brown agreed and no contraband was found. The officer then asked if he could conduct a patdown of Brown. He agreed and was arrested after the patdown revealed contraband. The same is true of Drayton. A further search revealed that both individuals had cocaine taped between their shorts. Drayton and Brown were charged with federal drug crimes and moved to suppress the cocaine on the ground that their consent to the patdown search was invalid. The Supreme Court held that the defendants' consent was not a product of coercion because, among other reasons, there had been "no threat, no command, [and] not even an authoritative tone of voice." Id. at 204.
Relying on Drayton, my colleagues place great stock in the politeness with which the officers interacted with Coach Marchand and the students.[7] Without a doubt, had the officers commanded Marchand to submit, or acted in a threatening, domineering, boorish, or otherwise inappropriate way, this case would be easier. But the fact that the officers were polite, particularly given all else that was occurring at the highly charged scene, does not establish that Marchand was not coerced. The Supreme Court has explained that subtle and polite coercion is just as objectionable as more

obvious browbeating. Schneckloth, 412 U.S. at 228.
Furthermore, we have admonished courts to "go beyond appearances and inquire whether the consent was a voluntary, intentional and understood waiver of a known right, or, on the contrary, was the product of deceit, duress and coercion, actual or implicit." United States v. Berkowitz, 429 F.2d 921, 925 (1st Cir. 1970)(internal quotation marks omitted). The "beyond appearances" inquiry is particularly important here: though the police may have been polite and refrained from issuing commands in an authoritative tone of voice, they nonetheless blocked the bus in, leaving the players no way out, essentially "appeas[ing] the masses" who were "crying for [the players'] heads." Maj. Op. at 6 (internal quotation marks omitted); see also infra at 12-15. Ultimately, the officers' demeanor can be but one factor in our analysis, and certainly "not the only one." Florida v. Bostick, 501 U.S. 429, 437 (1991).
Similarly, although the majority is correct that the officers' failure to notify Marchand that he could refuse to consent is not dispositive, Maj. Op. at 20, it is yet one more factor of the many in this narrative that, taken together, militate against qualified immunity in this case. See Schneckloth, 412 U.S. at 227 ("[T]he failure of the police to advise the accused of his rights [is] certainly [a] factor[] to be evaluated in assessing the `voluntariness' of [his] [consent] . . . ."); see also Drayton, 536 U.S. at 202 (quoting Bostick, 501 U.S. at 432)(explaining that one factor "particularly worth noting" when considering whether consent to search was coerced was that the officer had advised the passenger of his right to refuse to consent).
Like the issue of politeness and failure to warn an individual of his right to refuse consent, police custody is yet another factor worthy of consideration. Watson, 423 U.S. at 424. True, "custody alone has never been enough in itself to demonstrate . . . coerced . . . consent to search," 423 U.S. at 424, but we have previously observed that "sensitivity to the heightened possibility of coercion is appropriate when a[n] [individual's] consent is obtained during custody," United States v. Barnett, 989 F.2d 546, 555 (1st Cir. 1993).
There is no question that Marchand was in police custody at the time he consented to the search.[8] The officers parked their cruisers in front of and behind the players' bus, preventing them from leaving. This alone distinguishes our case from Drayton, which involved "no blocking of exits." 536 U.S. at 204. In Drayton, even though there was an officer at the front of the bus, "he said nothing to suggest that people could not exit and . . . left the aisle clear." Id. at 205. This is significantly different from the facts of the present case where the players' bus was completely boxed in by patrol cars. Surely, no reasonable officer could have believed that the plaintiffs felt free to leave.
Of course, it may be true that the officers trapped the players with the crowd before they were aware of the nature of the controversy and of the danger, fear, and concomitant coercion they would cause by doing so. See Maj. Op. at 25. But this is beside the point: at the time the officers sought Marchand's permission to search the players a reasonable officer would certainly have been aware, at that crucial moment, that the positioning of their cruisers left the players with no way out. Cf. Terry v. Ohio, 392 U.S. 1, 21-22 (1968) (explaining in analogous context that in evaluating the reasonableness of a search or seizure, courts look to the state of the facts "at the moment of the seizure or the search"). Regardless, Marchand's fearful inquiry of the officers in response to their request for consent ("[w]hat [is the crowd] going to do to us?") should have made apparent the fear elicited in him by being blocked in with the crowd.
The majority states that "[t]he officers could have reasonably thought that they made

clear [to Coach Marchand] that they would prevent the crowd from harming [his] players . . . ." Maj. Op. at 25. This conclusion is incredible—particularly in light of the fact that the officers never responded to Marchand's initial inquiry regarding the crowd's behavior. In addition, there were only four officers on the scene, yet they were responsible for controlling an angry, boisterous, irrational crowd of approximately fifty to sixty people. With a mere six to ten feet buffer between the hostile crowd and the players, I cannot fathom how any reasonable officer would think that the defendants made clear to Coach Marchand that he and his players would go unharmed. The majority points out that "the officers did not convey to Coach Marchand that they would not move their cruisers until he agreed to a search" and that the officers "were [not] . . . asked to move the cruisers." Maj. Op. at 26. That may very well be the case, but so too is the converse—the officers never offered nor took any action to move their cruisers on their own before soliciting Coach Marchand's permission.
Nevertheless, Marchand's fearful inquiry shows that he felt threatened and intimidated by the crowd. That Marchand did not translate his fear and intimidation of the crowd into a particularized request—for example, by asking the officers to move their cruisers or asking if there were any other options other than consenting to a search of his players—does not eliminate this factor from consideration. As the Supreme Court has explained, "the crucial test is whether, taking into account all of the circumstances surrounding the encounter, the police conduct would have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business." Bostick, 501 U.S. at 437 (emphasis added)(internal quotation marks omitted). Any officer should have recognized that Coach Marchand did not feel at liberty to leave.
The majority acknowledges that "the players' evidence depicts a difficult situation in which Coach Marchand faced a genuine choice between imperfect solutions," Maj. Op. at 23, but nonetheless decides that "these circumstances do not establish . . . that Coach Marchand's will had been overborne or that his capacity for self-determination was critically impaired." Id. at 24. To support this conclusion the majority notes that Coach Marchand testified at his deposition that he "`debated' telling the officers to get a search warrant, but rejected that option," after weighing his alternatives, Maj. Op. at 24, and ultimately "concluded that his role as coach was to ensure first and foremost that [his] players got home safely" Id. But Coach Marchand's thought process, and the actions he "debated" taking, are completely irrelevant. Marchand's testimony was given after the fact and was not communicated to any officer at the scene of the incident. The hypothetical reasonable officer cannot read minds; therefore, in analyzing whether such an officer would have known that Coach Marchand's consent was coerced, it is simply common sense that only facts actually communicated to or observed by the officer are relevant.
My colleagues are apparently of two minds on this issue: though they initially rely on Marchand's uncorroborated description of his internal thought process in an effort to negate the coercion he suffered, they later recognize that his subjective, unexpressed thoughts and feelings are irrelevant when dismissing Marchand's testimony that he felt coerced into consenting. see Maj. Op. at 26 ("It is not enough that Coach Marchand described his consent to the search as coerced; . . . [w]hile a jury might find that Coach Marchand subjectively believed his consent was coerced that is not the issue here; we must look to the view of the reasonable officer."). As I have previously discussed, Marchand's objective manifestations of coercion were amply supported by evidence available to the officers. In analyzing the coercive atmosphere under which Marchand gave his consent, I would consider only those facts available to a reasonable officer at the time of the search.

If more were needed, and I doubt that there is, the officers exacerbated the situation by "ma[king] little to no effort to quell or disperse the crowd, even as [it] verbally assailed the players[,] shouting racist epithets and accusations of theft." Lopera v. Town of Coventry, 652 F. Supp. 2d 203, 210 (D.R.I. 2009). With the possibly violent assembly looming, the officers questioned Marchand. Taking the crowd's word over Marchand's, they elected to pursue a search of the Central Falls students before adequately calming the mob or even ascertaining what, if anything, had actually been stolen.
My colleagues, in further reliance on Drayton, note that there was no testimony that the request to search was made in "an authoritative tone of voice." Maj. Op. at 23 (internal quotation marks omitted). But tone of voice cannot be dispositive of the coercion inquiry. Al Capone said you can get more with a kind word and a gun than with just a kind word; a mob can be just as "convincing" as a gun.
The officers knew that Marchand felt threatened by the crowd. They knew he had already capitulated to the intense coercion and intimidation exerted by the mob, delaying his team's departure for about a half-hour to engage in a search that he knew beforehand would be futile in order to satisfy the crowd's demands. Still, the officers did practically nothing to assuage that fear or mitigate the coercion, and indeed kept the players' bus trapped with the crowd for more than ten minutes before capitalizing on Marchand's weakened state to elicit consent for a duplicative search. Without a doubt, such behavior is contrary to the general recognition that police officers have a duty to protect the public and public safety. See, e.g., Bordanaro v. McLeod, 871 F.2d 1151, 1164 (1st Cir. 1989)(referencing district court's assertion in excessive force case that "the primary duty of the police departments and policemen is to protect and preserve life and property and the public peace ")(emphasis added).
It is inappropriate to create an artificial dichotomy between the coercion applied by the officers and that applied by the crowd they failed to adequately control, and then to omit the latter from consideration. To do so subverts the totality-of-the-circumstances analysis that is required of us. Even the majority recognizes this. In rejecting the officers' argument that coercion, in the context of Fourth Amendment analysis, must "`emanat[e] from the police officers themselves rather than any subjective or outside influence,'" the majority noted that clearly established law requires consideration of "all the surrounding circumstances." Maj. Op. at 17-18 (citing Schneckloth, 412 U.S. at 227, and concluding that Colorado v. Connelly 479 U.S. 157 (1986), which held that "coercive police activity is a necessary predicate to the finding that a confession is not `voluntary' within the meaning of the Due Process Clause," id. at 167, does not extend to Fourth Amendment consent cases).
A reasonable officer in the defendants' position would have known that Marchand, who expressed fear of the crowd, was under a significant amount of duress. This duress was caused both by the raucous mob hurling menacing accusations, threats, and racial epithets and the officers themselves, who blocked Marchand's team in with the crowd, failed to take adequate measures to calm or disperse it, and immediately took its side against Marchand upon arriving, despite lacking any reasoned basis for doing so. Given the officers' exchange with Marchand, they knew or at least should have objectively known, that he felt constrained by their failure to disperse the crowd or allow the bus to leave and that he feared the racial animus in the crowd aimed at his players. On these facts, a reasonable officer would have known that Marchand believed he had no option for getting his students home safely but to consent to their demand for a search. Moreover, a reasonable officer would conclude that Marchand's responsibility for the safety of his charges and his increasing tardiness in getting them

home would make him particularly vulnerable to this type of coercion.
III.
I am gravely concerned that our case law is treading terribly close to creating "an impenetrable defense for government officals" and a "significant risk that qualified immunity will always attach." Savard v. Rhode Island, 338 F.3d 23, 41 (1st Cir. 2003)(equally divided en banc court)(opinion of Bownes, J.). The Fourth Amendment is one of our most precious constitutional rights. We should not so comfortably defer to the judgment of government officials at the cost of eviscerating such a fundamental right of our citizens—a right this nation has declared deserves the highest protection. Indeed, our task in undertaking a qualified immunity inquiry requires the contrary. It is after all "an attempt to balance competing values: not only the importance of a damages remedy to protect the rights of citizens, but also `the need to protect officials who are required to exercise their discretion and the related public interest in encouraging the vigorous exercise of official authority.'" Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982)(quoting Butz v. Economou, 438 U.S. 478, 504-06 (1978))(citation omitted).
With these concerns in mind and taking, as I must, every inference available in the record in favor of the plaintiffs, I cannot say that a reasonable officer in the defendants' position could have concluded that Marchand voluntarily consented to the search. The Central Falls team's rights were violated; the violation was clear; and a reasonable officer should have recognized it. I would vacate the district court's entry of summary judgment and remand for resolution of the factual disputes upon which the officers' claim of qualified immunity turns.
[1] This crowd apparently did not include any soccer players.
[2] One officer testified that Coach Marchand suggested the search and that they conducted the search because it would "expedite the process and eliminate them all as suspects." These are disputed facts and for these purposes we do not accept them.
[3] The players have conceded that their Due Process claim was not intended to allege a violation of their substantive due process rights and thus overlaps with their Fourth Amendment claim.
[4] Although this language derives from Drayton's analysis of whether a seizure had occurred in that case, the Court noted that "[i]n circumstances such as these, where the question of voluntariness pervades both the search and seizure inquiries, the respective analyses turn on very similar facts." United States v. Drayton, 536 U.S. 194, 206 (2002). The Court's analysis of whether the defendant's consent was coerced invoked the factual discussion in its analysis of whether the defendant had been seized. Id.
[5] The record reflects that the Central Falls players were bi-lingual.
[6] In their brief, the defendant officers note that if the case were to go to trial they would dispute both the number of spectators alleged to be watching the exchange as well as the plaintiffs' reference to the spectators as a "mob."
[7] Though I would hardly describe the decision to conduct an invasive search of the players in front of a hostile, jeering, photo-taking crowd as "polite," the players do not appear to challenge this characterization.
[8] There is no need to determine whether Marchand was in legal custody. By "custody" I refer only to the factual scenario by which the bus was blocked in by police cruisers, effectively blocking any means of exit for the plaintiffs