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The Honorable Richard W. Goldberg, Judge of the United States Court of

International Trade, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 01-2487

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Jason Shade, individually;

Appellant,

v.

City of Farmington, Minnesota, a

Minnesota Municipal Corporation;

Ted Dau, individually and in his

official capacity,

Appellees.

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Appeal from the United States

District Court for the

District of Minnesota.

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Submitted: March 15, 2002

 Filed: November 6, 2002

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Before HANSEN, Chief Judge, JOHN R. GIBSON, Circuit Judge, and GOLDBERG,1

Judge. 

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HANSEN, Circuit Judge.
2

The Honorable John R. Tunheim, United States District Judge for the District

of Minnesota.

2

Jason Shade (Shade) brought this 42 U.S.C. § 1983 action, alleging that his

constitutional right to be free from an unreasonable search and seizure was violated

by school officials and police officers. He also sought attorneys fees and costs for

alleged violations of the Minnesota Government Data Practices Act (Data Practices

Act), Minn. Stat. §§ 13.01-13.99. The district court2

 ruled on summary judgment that

police officer Ted Dau was entitled to qualified immunity for his role in the search

and that Shade was not entitled to attorney's fees and costs under the Data Practices

Act. Shade appeals, and we affirm. 

I.

At the time of the search in question, Shade was a 17-year-old student at the

Apple Valley Alternative Learning Center (Apple Valley ALC), located in Apple

Valley, Minnesota. On December 2, 1999, Shade's teacher, Allen Schmitz,

transported Shade and seven other students by bus from Apple Valley ALC to Al's

Autobody, a local business in the neighboring community of Farmington, Minnesota,

for automotive shop class. Along the way, Mr. Schmitz stopped the bus at a local

fast-food restaurant to allow the students to purchase breakfast. Shade bought a

breakfast sandwich and a container of orange juice. 

Once the students and Mr. Schmitz were back on the bus and on their way

again, Shade asked whether any student around him had something he could use to

open his container of orange juice. Brandon Haugen, a student sitting nearby, offered

Shade his folding knife. Shade took the knife, unfolded the blade, and used it to open

the orange juice. Shade then closed the blade and handed the knife back to Haugen.

Through the review mirror, Mr. Schmitz had observed Shade using the folding knife

but had not seen where the knife came from or where it went after Shade had used it.
3

School policy bans the possession of any "weapon or look-alike weapons,"

which is defined in relevant part as "[p]ossessing . . . any device or instrument

designed as a weapon and capable of producing severe bodily harm, or intended to

look like a device or instrument capable of producing severe bodily harm."

(Appellant's App. at 24.)

3

When Mr. Schmitz arrived at Al's Autobody with the students, he contacted

Shirley Gilmore, a coordinator at Apple Valley ALC, and told her that he had seen

Shade with a knife on the bus. Ms. Gilmore then contacted Dan Kaler, the principal

for the alternative school, and they decided that the automotive shop students should

be searched before returning to the alternative school because possession of a knife

violated the school district's rule prohibiting weapons and presented an immediate

safety concern.3

 While the students were still in class in Farmington, Principal Kaler

contacted the Apple Valley school liaison officer, Michael Eliason, to assist in

searching the students. Ms. Gilmore, in turn, relayed a message to Mr. Schmitz that

the students were to be detained at Al's Autobody until school officials were able to

arrive at the shop to investigate the matter. Officer Eliason contacted his fellow

school liaison officer, Officer Ted Dau, at the Farmington high school, to obtain

Dau's assistance in searching the students. 

Officer Dau, Officer Eliason, and Ms. Gilmore met at a location near Al's

Autobody and proceeded to the bus as the students were boarding to return to Apple

Valley ALC. Mr. Schmitz informed Officer Dau that he had seen Shade with a

"medium-sized knife." (Appellant's App. at 127.) When Officer Dau asked whether

any of the other students possessed knives, Mr. Schmitz responded that he did not

know. 

The officers then asked the students to exit the bus, which they searched but

did not find a knife. After the students had exited, Officer Dau informed the students

that each of them would be searched to locate the knife that Mr. Schmitz had seen.

When Officer Dau asked if any student had a knife to turn over before the officers
4

The initial suit was filed by Shade's parents on his behalf. He has since turned

eighteen. 

4

began their search, Haugen stepped forward and handed a knife to Officer Eliason.

Officer Dau thereafter directed the students to place their hands on the bus and spread

their legs. Dau conducted a pat-down search of the male students, and Ms. Gilmore

searched the two female students in the group. 

When Officer Dau searched Shade, he found no knife but did find an item

similar in appearance to an ASP tactical baton in Shade's front pocket. An ASP

tactical baton is often carried by law enforcement officers for use in neutralizing and

controlling aggressive individuals. The item Shade possessed was nine and a half

inches long but expanded to more than twenty-two inches. Unlike an actual baton,

a portion of its shaft consisted of a sturdy but flexible spring. Based on his

possession of the knife on the bus, Shade was charged with possessing a dangerous

weapon on school property, in violation of Minn. Stat. § 609.66, subd. 1d(a). The

school also initiated an expulsion proceeding against Shade on the basis that his

possession of the knife and the expandable device violated the school's ban on

weapons. 

Shade and his parents contested the disciplinary action. They argued that the

expandable device was merely a "pointer" that Shade had intended to use in class,

which he also used in his family's home business. Shade's father also sought the

officer reports prepared after the search for use in defending against the expulsion

proceeding. The departments involved, however, declined to provide the information.

As a result, Shade filed suit in Minnesota state court, claiming that he was entitled to

the reports under the Data Practices Act.4

 A Minnesota district judge agreed and

ordered the departments to provide the information that Shade sought. 
5

The complaint alleged similar violations against other defendants, but those

claims were resolved by the parties. Shade and the school resolved the disciplinary

matter, and Shade served a short suspension from school for the weapons violation.

As for the criminal charge, Shade offered a plea of guilty that the juvenile court

refused on the condition that Shade complete a satisfactory six-month probationary

period. 

6

Shade has not briefed the merits of his civil rights claim against the City of

Farmington. We therefore consider Shade's appeal abandoned as to that claim. See

Carter v. Chrysler Corp., 173 F.3d 693, 699 (8th Cir. 1999).

 

5

Shade subsequently amended his complaint to allege that Officer Dau and the

City of Farmington violated his civil rights by conducting an unreasonable search.5

Shade also sought costs and attorney's fees incurred in his efforts to obtain the police

records. The defendants removed the case to federal court and moved for summary

judgment. The district court ruled that Officer Dau was entitled to qualified immunity

for his role in the search and that Shade had pointed to no facts supporting a claim of

municipal liability against the City of Farmington. The court also recognized that the

Minnesota state court had ordered the City to disclose the reports pursuant to the Data

Practices Act but concluded that Shade was not entitled to fees and costs. 

II.

Shade challenges the district court's grant of qualified immunity to Officer Dau

for his role in the search, a decision we review de novo.6

 Sexton v. Martin, 210 F.3d

905, 909 (8th Cir. 2000). A state actor is entitled to qualified immunity when his

"'conduct does not violate clearly established statutory or constitutional rights of

which a reasonable person would have known.'" Id. (quoting Harlow v. Fitzgerald,

457 U.S. 800, 818 (1982)). To determine whether qualified immunity is appropriate,

we first ask whether the plaintiff alleges facts demonstrating that the state actor

violated the plaintiff's constitutional or statutory rights. See Hope v. Pelzer, 122 S.
6

Ct. 2508, 2513 (2002); Washington v. Normandy Fire Prot. Dist., 272 F.3d 522, 526

(8th Cir. 2001). In doing so at the summary judgment stage, we "take as true those

facts asserted by [a] plaintiff that are properly supported in the record." Tlamka v.

Serrell, 244 F.3d 628, 632 (8th Cir. 2001). If those facts would establish a

constitutional violation if proven at trial, our next inquiry is whether the right violated

was clearly established at the time of the state actor's conduct. Washington, 272 F.3d

at 526. The law is clearly established if the law was sufficiently developed to give

the official "fair warning" that his alleged conduct violated the plaintiff's rights.

Hope, 122 S. Ct. at 2516. 

A.

In defining whether the summary judgment facts demonstrate a constitutional

violation, we face the task of determining what Fourth Amendment standard governs

the lawfulness of Officer Dau's conduct. The Fourth Amendment protects "[t]he right

of the people to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures." Bd. of Educ. of Indep. Sch. Dist. No. 92 v.

Earls, 122 S. Ct. 2559, 2564 (2002) (internal quotations omitted). As a general rule,

the reasonableness requirement obligates law enforcement officers to obtain a judicial

warrant, issued only on a showing of probable cause, before conducting a search.

Skinner v. Ry. Labor Executives' Ass'n, 489 U.S. 602, 619 (1989). Even in those

situations where the Court has found it permissible for officers to conduct a search

without a warrant, an officer may, as a general rule, search an individual only when

there is "probable cause to believe that the person to be searched has violated the

law." Id. at 624. 

But neither the warrant nor the probable cause requirement is a constitutional

prerequisite to a valid search when the government has "special needs" beyond

normal law enforcement that render the requirements impracticable. Id. at 619. On

three separate occasions, the Supreme Court has recognized that "special needs" exist
7

in the public school setting, thereby permitting school officials to search a student

without a warrant and without probable cause to believe that the student violated the

law. See Earls, 122 S. Ct. at 2569 (upholding the constitutionality of school's policy

to randomly drug test students participating in extracurricular activities); Vernonia

Sch. Dist. 47J v. Acton, 515 U.S. 646, 664-65 (1995) (rejecting Fourth Amendment

challenge to random drug testing of student-athletes); New Jersey v. T.L.O., 469 U.S.

325, 340-41 (1985) (concluding that the probable cause and warrant requirements are

unsuited to the public-school setting). These three decisions teach that students retain

a privacy interest while at school but explain that the probable cause and warrant

requirements are ill-suited in the school setting because the requirements would

overbear school administrators' and teachers' ability to maintain order and insure an

environment conducive to learning. The Fourth Amendment's reasonableness

inquiry, therefore, must account for "the schools' custodial and tutelary responsibility"

over the students entrusted to their care. Vernonia, 515 U.S. at 656.

In T.L.O., a case involving a school official's decision to search an individual

student based on a belief that the student violated a school rule, the Supreme Court

accounted for the school's interest in an orderly learning environment by adopting a

two-part "reasonableness" inquiry. 469 U.S. at 341. In such a case, the Court

explained that the lawfulness of the search first depends on whether the official's

search was "justified at its inception." Id. (quoting Terry v. Ohio, 392 U.S. 1, 20

(1968)). If so, the second inquiry is whether the search was reasonable in scope. Id.

Subsequently, in the context of suspicionless drug testing, the Court has employed

a three-factor balancing approach to assess the reasonableness of a school's drugtesting policy that implicates Fourth Amendment concerns. Despite the intervening

two cases, we conclude that T.L.O.'s two-part inquiry remains the appropriate

standard governing the search of an individual student based on a perceived rule

violation. T.L.O. specifically dealt with such a situation, whereas the special needs

addressed in the context of school drug testing are quite different. See In re Angelia
8

D.B., 564 N.W.2d 682, 688 (Wis. 1997) (applying T.L.O. in a similar case after

Vernonia).

The question remains whether T.L.O.'s standard applies when, as here, law

enforcement officers were involved in searching a student and the search occurred

away from traditional school grounds. Neither of these considerations has been

before the Supreme Court in its prior school-search cases. In T.L.O., the Court

explicitly refrained from expressing a judgment on the nature of the Fourth

Amendment review when a search is "conducted by school officials in conjunction

with or at the behest of law enforcement agencies." 469 U.S. at 341 n.7. Not long

after the T.L.O. decision, our court held that T.L.O.'s reasonableness standard, not

probable cause, applied when a school official searched a student in conjunction with

a school liaison officer. See Cason v. Cook, 810 F.2d 188, 193 (8th Cir.), cert.

denied, 482 U.S. 930 (1987). We relied on the fact that the school official made the

initial decision to investigate the student and conducted most of the actual

investigation. Id. at 192-93. We also noted that the officer's involvement was limited

to conducting a pat-down search of the student after the school official located a

stolen item in the student's purse. Id. at 193. Most courts addressing law

enforcement involvement after Cason have similarly concluded that T.L.O.'s

reasonableness standard applies when school officials initiate the search or when the

officers are only minimally involved in the search. In re Angelia D.B., 564 N.W.2d

at 687 (collecting cases).

As in Cason, school officials, not law enforcement officers, initiated the

investigation and the search of Shade and the other students. Ms. Gilmore and

Principal Kaler decided to search Shade and the others because they felt the knife

presented a safety concern, requiring swift action and the assistance of trained law

enforcement officers. The two school officials reasonably believed that a police

officer was more capable and better trained to search for a weapon in a student's

possession and decided to detain the students at Al's Autobody to eliminate the
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concern as quickly as possible. See In re Josue T., 989 P.2d 431, 437 (N.M. Ct. App.

1999) (concluding the T.L.O. standard applied when school officials sought officer's

assistance after determining a student's possession of a weapon presented a safety

issue). Ms. Gilmore also directed the officers to search the students when she arrived

at the automotive shop. 

In comparison to the officer's involvement in Cason, Officer Dau and Officer

Eliason played a more substantial role in the investigation and search, but the extent

of their involvement does not distinguish this case from Cason. The school official

in Cason suspected that the student was in possession of items stolen from other

students' lockers, not that she was in possession of a dangerous weapon. Because

Shade was seen with a knife, it was entirely reasonable for Officer Dau and Officer

Eliason to play a greater role in questioning those involved and in directing the

mechanics of the search. As the Supreme Court of Wisconsin wisely explained, a

contrary conclusion "might serve to encourage teachers and school officials, who

generally are untrained in proper pat down procedures or in neutralizing dangerous

weapons, to conduct a search of a student suspected of carrying a dangerous weapon

on school grounds without the assistance of a school liaison officer or other law

enforcement official[s]." In re Angelia D.B., 564 N.W.2d at 690. 

The fact that the search occurred away from what one would consider

traditional school grounds similarly does not elevate the Fourth Amendment standard

to one of probable cause. The nature of administrators' and teachers' responsibilities

for the students entrusted to their care, not school boundary lines, renders the Fourth

Amendment standard in the public-school context less onerous. Here, because of the

unique and practical nature of their alternative-school education, the students were

receiving training outside of a typical classroom away from the school. However, Mr.

Schmitz, Ms. Gilmore, and Principal Kaler – the school decision-makers – still had

the same obligation to protect the alternative students from harm and insure a

conducive learning environment despite the off-campus setting. Moreover, the
10

students were at all times in the custody and control of their teacher when the events

occurred. See Hassan v. Lubbock Indep. Sch. Dist., 55 F.3d 1075, 1079-80 (5th Cir.)

(applying T.L.O.'s inquiry to school officials' physical detention of a student during

a school field trip), cert. denied, 516 U.S. 995 (1995). Because school officials

initiated the investigation and search of Shade in furtherance of the school's interest

in maintaining a safe learning environment, and because they asked officers to assist

them in furtherance of that interest, we hold that T.L.O.'s two-part inquiry governs

the lawfulness of the search conducted by Officer Dau. 

B.

Under T.L.O., a search is "'justified at its inception' when there are reasonable

grounds for suspecting that the search will turn up evidence that the student has

violated or is violating either the law or the rules of the school." T.L.O., 469 U.S. at

342. Shade argues that reasonable grounds to search him did not exist because

Haugen had already turned over the knife at the time when Officer Dau searched him.

Although Officer Dau did not know the knife Haugen turned over was the same one

Mr. Schmitz had seen, Shade contends that Officer Dau should have asked Mr.

Schmitz whether the knife Haugen handed over was the same one Mr. Schmitz had

seen on the bus. In furtherance of the argument, Shade points out that Mr. Schmitz

confirmed that Haugen's knife was the one Mr. Schmitz had seen in Shade's

possession after the search of the students was complete. 

Accepting Shade's argument would require us to undertake the type of

"Monday morning quarterbacking" that is prohibited under the Fourth Amendment.

See Schulz v. Long, 44 F.3d 643, 649 (8th Cir. 1995). The Fourth Amendment does

not require officers to use the least intrusive or less intrusive means to effectuate a

search but instead permits a range of objectively reasonable conduct. See id. If the

officers' conduct falls within that permissible range of reasonableness, it is not our

role to hinder or interfere with the difficult tasks and emotionally-charged situations
7

We express no opinion on whether the search of the other students was

permissible under the Fourth Amendment because Shade lacks standing to complain

of their treatment. See Rozman v. City of Columbia Heights, 268 F.3d 588, 591 (8th

Cir. 2001) (en banc) (holding that landlord lacked standing to assert constitutional

claims of his tenants), cert. denied, 122 S. Ct. 1438 (2002).

11

that officers face in their daily job. See generally Gardner v. Buerger, 82 F.3d 248,

252 (8th Cir. 1996) ("Police officers have tough jobs, and the calculus of

reasonableness must embody allowance for the fact that police officers are often

forced to make split-second judgments–in circumstances that are tense, uncertain, and

rapidly evolving." (internal quotations omitted)).

In the instant case, Officer Dau's conduct fell within the range of reasonable

conduct permitted under the Fourth Amendment. Mr. Schmitz told Officer Dau that

he had seen Shade, not Haugen, with a medium-sized knife, in violation of the

school's ban on weapons. Thus, when Haugen turned over a knife to Officer Eliason,

all Officer Dau knew was that a student, one who had not been seen with a knife, had

volunteered a contraband item. Officer Dau testified at his deposition that he was

unable to see the knife when Haugen presented it to Officer Eliason. As a

consequence, he did not know whether the knife handed over fit the generic

description of the knife that Mr. Schmitz had offered earlier, nor did Mr. Schmitz

inform Officer Dau that Haugen's knife was the one he had seen. In fact, Mr. Schmitz

believed there might have been more than one knife after Haugen offered one. Given

these facts, Officer Dau continued to have reasonable grounds to believe that Shade

might have been in possession of a knife, even though Haugen had volunteered one.7

See Thompson v. Carthage Sch. Dist., 87 F.3d 979, 983 (8th Cir. 1996) ("[I]t is not

realistic to require [school officials] to abort the search of a particular child who does

not appear to be in possession of . . . contraband" once the officials "decide[] to

quickly search many children's pockets for dangerous weapons."). While Shade's

suggestion that Officer Dau should have asked more questions once a knife was
12

turned over is a plausible one, "[t]he logic of such elaborate less-restrictivealternative arguments could raise insuperable barriers to the exercise of virtually all

search-and-seizure powers." Earls, 122 S. Ct. at 2569 (internal quotations omitted).

Having concluded the search was justified, we have little trouble deciding that

it also was reasonable in scope. A search is reasonable in scope if the "measures

adopted are reasonably related to the objectives of the search and not excessively

intrusive in light of the age and sex of the student and the nature of the infraction."

T.L.O., 469 U.S. at 342. Applying this standard, we previously have held in

Thompson v. Carthage Sch. Dist. that officials may pat down and search a student's

pockets when looking for a dangerous weapon, which is the action Officer Dau

employed here. 87 F.3d at 983. Finding no evidence to support a conclusion that

Officer Dau's search of Shade was unreasonable under the circumstances, we

conclude that Shade has not established a violation of his Fourth Amendment rights.

Our qualified immunity inquiry is therefore at an end, and we agree with the district

court that Officer Dau is entitled to immunity for his role in the search. 

III.

We turn next to Shade's claim for attorney's fees and costs under Minnesota

law. An individual may request and obtain access to all data that is designated as

"public government data" under the Data Practices Act. Minn. Stat. § 13.03, subd.

3(a). Information is presumed to be public government data unless it is classified as

nonpublic or confidential by state or federal law or other proper procedures. Id.,

subd. 1. Section 13.82 of the Act governs the classification of information gathered

and reports maintained by law enforcement officials in Minnesota. The section

specifies what information is considered public data and carves out other types of

information in the possession of law enforcement that are designated as confidential

or nonpublic data. 
13

When access to public data is denied, an "aggrieved person" may bring a civil

action to obtain access to the wrongfully withheld information, and attorney's fees

and costs are recoverable in such an action. See Minn. Stat. § 13.08, subd. 4. An

"aggrieved person" is one who is denied "access to data that is available as a matter

of right" under the act. Wiegel v. City of St. Paul, 639 N.W.2d 378, 384 (Minn.

2002). The act also permits discovery of nonpublic information when a judicial

officer determines a party's need for the information is outweighed by the need to

keep the information confidential. Id. § 13.03, subd. 6. Contrasting these two

procedures, the Supreme Court of Minnesota recently explained in Wiegel that "it is

important to note that sometimes a person can prevail in a legal action by obtaining

access to data, but not be aggrieved by the government's action because the data were

not available to the person as a matter of right." Id. 

Like the district court, we are unable to ascertain whether the state court

ordered the disclosure of nonpublic data or the disclosure of wrongfully withheld

public data. Its order does not specify or classify the information Shade sought.

From the limited record before us on the issue, it appears the information sought from

the Farmington police department would be classified as reports involving the

ongoing criminal investigation of several juveniles found to be in possession of

contraband. (The officers found multiple students to be in possession of contraband

items.) Records involving such matters are confidential. See Minn. Stat. § 13.82,

subd. 7 (declaring information confidential when it is part of a pending investigation

relating to a purported offense); id., subd. 6(g) & 17(g) (permitting agencies to

protect the identities of juvenile witnesses); § 260B.171, subd. 5 (prohibiting

disclosure of records concerning juveniles, except to the child's parents or guardian).

We therefore affirm the district court's conclusion that Shade is not an "aggrieved

person" entitled to attorney's fees and costs under § 13.08. 
14

IV.

We affirm the judgment of the district court in its entirety. 

JOHN R. GIBSON, Circuit Judge, dissenting.

I respectfully dissent. I share the concerns the district judge articulated that

a simple question to teacher/driver Schmitz would have rendered unnecessary the

search of either Jason Shade or the other seven passengers on the bus. Schmitz later

stated that the knife produced and turned over by Brandon Haugen to the police was

the same knife that he saw through the rear view mirror in Jason Shade's hand, being

used to open a can of orange juice. This simple question and this answer render the

search unreasonable and not justified at its inception. I would reverse.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.