FILED 

 U.S. COURT OF APPEALS

 ELEVENTH CIRCUIT 

 August 31, 2005 

 THOMAS K. KAHN 

 CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_____________________________

No. 03-13686

_____________________________

D. C. Docket No. 02-00036 CV-WCO-2

JANET M. HICKS,

a.k.a. Janet M. Bryant,

 Plaintiff-Appellee,

versus

RICHARD MOORE, Individually and in his

Official Capacity as the Sheriff of Habersham County,

MICHAEL LONG,

BRIAN AUSBURN,

HABERSHAM COUNTY, GEORGIA,

JENNIE CLOUATRE,

JOSHUA HIGHFILL, 

JOHN TAYLOR,

RUSSELL GOSNELL,

Defendants-Appellants,

JANE DOE, Individually, et al.,

 Defendants.

____________________________

Appeal from the United States District Court

for the Northern District of Georgia 

_____________________________

(August 31, 2005)
 Honorable B. Avant Edenfield, United States District Judge for the Southern District of Georgia, *

sitting by designation.

2

Before EDMONDSON, Chief Judge, HULL, Circuit Judge, and EDENFIELD ,

*

District Judge.

EDMONDSON, Chief Judge:

This civil action for damages is, among other things, about a county jail’s

practice of strip searching all detainees who were to be placed in the general jail

population -- regardless of whether reasonable suspicion existed for the search of a

particular pretrial detainee. Because we are overcome by this Circuit’s precedent,

we must agree with the district court that such a general practice, for now at least,

is an unlawful basis for the searches. But because the Plaintiff’s strip search in

this case was supported by reasonable suspicion, we conclude that Defendants are

entitled to summary judgment on that ground and accordingly reverse, in part, the

district court’s decision.

Background

Plaintiff-Appellee Janet M. Hicks was arrested in April 2001 by a corporal

of the Habersham County, Georgia, Sheriff’s Department after a domestic dispute
For this interlocutory appeal under 28 U.S.C. § 1983, we resolve all the properly disputed facts 1

in accord with Plaintiff’s version of the facts.

 Georgia defines family violence battery as “intentionally caus[ing] substantial physical harm or

2

visible bodily harm” to a “past or present spouse[].” O.C.G.A. § 16-5-23.1(a), (f). A first offense

is a misdemeanor; a repeat offense is a felony. Id. § 16-5-23.1(f). Plaintiff had never before been

charged or arrested under § 16-5-23.1.

3

with her estranged husband. After investigating at the scene, the Corporal 1

determined that Plaintiff -- though exhibiting no violent behavior after the

Corporal arrived -- was the chief aggressor and charged her with family violence

battery. The Corporal took Plaintiff to the Habersham County Jail where he 2

notified the jailers of the arrest charge and turned Plaintiff over to the custody of

the jailers for processing. No jailer who had contact with Plaintiff during her

booking process testified that he suspected that Plaintiff was concealing weapons

or contraband.

Plaintiff arrived at the Jail between 5:30 and 6:15 p.m., the time during

which shift changes at the Jail occurred. Coming on duty for the night shift at

about the same time was Shift Corporal John Taylor and Jail Officer Joshua

Highfill. Also on duty from the day shift was Dispatcher Jennie Clouatre, who

was to go off duty at about 6:30 p.m.

Upon Plaintiff’s arrival, she was placed in a holding cell. Plaintiff was

allowed to come out of the cell to meet with her lawyer and was then put back in
 Defendants do not dispute that a strip search was performed on Plaintiff or offer an alternative 3

to Clouatre. We will assume at this stage that Clouatre performed the strip search in this case.

 Taylor and Highfill both maintain that Taylor, not Highfill, fingerprinted Plaintiff. Plaintiff 4

contends Highfill fingerprinted her, and we assume that to be true on summary judgment.

4

the holding cell. Corporal Taylor later retrieved Plaintiff from the cell; a woman

then took Plaintiff into a bathroom to perform a strip search. Plaintiff believes the

woman may have been Dispatcher Clouatre, but she is not sure.3

According to Plaintiff, Clouatre took Plaintiff into a windowless bathroom 

-- no one else was in the room -- and told her to disrobe, lift her breasts, and cough

three times while squatting. Never did Clouatre, during the search, touch Plaintiff. 

The search lasted about five or six minutes. Plaintiff testified that Clouatre’s

demeanor was “[j]ust businesslike” and that Clouatre “was just doing her job.” 

Clouatre testified that she does not remember Plaintiff in particular but that

Clouatre, as a Dispatcher, has performed strip searches before at the request of the

Shift Corporal when no female jailer was on duty. While Clouatre did not perform

strip searches unless directed by the Shift Corporal, she understood the Jail’s

practice was to strip search everyone who came to be jailed regardless of the

charge. 

After the search, Plaintiff was photographed and fingerprinted by Officer

Highfill. According to Plaintiff, Officer Highfill instructed her to stand directly 4
5

behind him while he pulled each arm around his body when making Plaintiff’s

fingerprints. Plaintiff testified Highfill explained to her that this method ensured a

more accurate printing. Highfill pulled Plaintiff’s arm around him with the rolling

of each finger, causing Plaintiff’s breasts and pelvis repeatedly to touch Highfill’s

back.

Plaintiff said she felt like she was being “toyed with” during the photograph

and fingerprinting process. She offered two reasons: (1) she was scared and

nervous, and she believed the officers could see that; and (2) the officers had made

light of the requirement to photograph Plaintiff’s scar as a precaution against a

possible escape attempt. But as with Clouatre, Plaintiff testified that, during the

fingerprinting, Highfill was “just doing his job” and “w[as not] mean to me.” No

officer in the Sheriff’s department -- including Taylor or Highfill -- testified that

he had ever fingerprinted a detainee by having a detainee stand directly behind the

officer, and two officers testified that such a method was inadvisable because it

put the officer at risk.

Corporal Taylor testified that, during the previous Sheriff’s administration,

he had questioned a superior officer about the Jail’s blanket strip-search practice

after Taylor learned at jail school that “we shouldn’t strip search everybody that

comes through the door.” The superior had replied that he would look into it but
6

that they were to “fall back on department policy” and that he thought they “could

get away with it.” Officer Highfill also testified that he was instructed to strip

search every detainee that was to be held in the Jail. All Defendants who testified

said that the reason for such a practice was for the safety and security of the Jail

Officers and the inmates.

Sheriff Richard Moore assumed the duties of his office in January 2001, at

which time a written policy requiring reasonable suspicion for strip searches was

in place at the Jail: a policy put there by a previous administration. Sheriff Moore

testified that he did not read the policy upon taking office and that he delegated

the day-to-day operations at the Jail -- including searches -- to the Jail

Administrator, Captain Brian Ausburn. Sheriff Moore contends he was unaware

of the blanket strip-search practice until a lawsuit about a strip search performed in

the previous Sheriff’s administration -- a suit filed in October 2001 (after the

search in this case) -- prompted an investigation into the Jail’s search practice. 

The spouse of the plaintiff in that earlier lawsuit complained in January 2001

(before the search in this case) to Sheriff Moore about the specific strip search in

that case; and Sheriff Moore said he would look into the matter. Some testimony

in the record indicates that Sheriff Moore had been in the immediate vicinity when

jailers were preparing to strip search other detainees. 
7

Captain Ausburn testified that he also was unaware that a general strip

search practice was being followed at the Jail until he -- at the behest of Sheriff

Moore upon the filing of the October 2001 lawsuit -- questioned jailers in the fall

of 2001 about strip searches. Captain Ausburn discovered that a former

administration’s practice, requiring indiscriminate strip searches, had been

continued under Sheriff Moore’s tenure. Plaintiff contends Sheriff Moore did not

instruct his deputies to stop the practice in the Jail until November 2001; that same

month a pamphlet was distributed to jailers containing a “decision tree” to aid

jailers in the determination of reasonable suspicion for strip searches.

Plaintiff brought both federal and state-law claims in this case, only a few of

which are presented for review in this appeal. On her federal claims before this

Court, Plaintiff contends that her Fourth Amendment rights were violated when

she was strip searched pursuant to the Jail’s general practice requiring the strip

search -- without regard for particularized reasonable suspicion -- of all detainees

to be housed in the Jail. Plaintiff brings this claim against Clouatre for performing

the search, and against Sheriff Moore, Captain Ausburn and Sergeant Gosnell

alleging supervisory liability for failure to train. Plaintiff further claims that

Highfill violated her constitutional rights when he fingerprinted her in a way that
8

caused her body to be pulled against his during the process. The state-law claim in

this appeal is an assault and battery claim against Highfill for the fingerprinting.

The district court concluded that the indiscriminate strip-search practice at

the Jail was unconstitutional under our Circuit’s decision in Wilson v. Jones, 251

F.3d 1340 (11th Cir. 2001), and also concluded that the circumstances here did not

support a determination of reasonable suspicion for the strip search performed on

Plaintiff specifically. The district court denied qualified immunity to Clouatre on

the strip search itself and denied qualified immunity to Moore, Ausburn and

Gosnell on the failure-to-train claim. The court also denied qualified immunity to

Highfill on the federal claim for the fingerprinting and denied Highfill official

immunity on the state-law assault and battery claim for the fingerprinting. 

Defendants took an interlocutory appeal on the denial of immunity.

Discussion

I. Federal Claims
 We personally question that such a practice violates the Fourth Amendment. See Evans v. 5

Stephens, 407 F.3d 1272, 1278-79 (11th Cir. 2005) (en banc) (“Most of us are uncertain that jailers

are required to have a reasonable suspicion of weapons or contraband before strip searching -- for

security and safety purposes -- arrestees bound for the general jail population. . . . Never has the

Supreme Court imposed such a requirement.”). For background, see Evans, 407 F.3d at 1284-96

(Carnes, J., concurring specially, joined by Dubina and Hull, JJ.). But we accept that “reasonable

suspicion” is required by the law of the Circuit.

9

When we consider the question of entitlement to qualified immunity, we

first ordinarily ask whether the Constitution was violated at all.

A. The Strip Search.

Plaintiff contends Clouatre (pursuant to the Jail’s practice) violated

Plaintiff’s rights under the Fourth Amendment by strip searching her without

reasonable suspicion. She also claims that Sheriff Moore, Captain Ausburn, and

Sergeant Gosnell are liable to her based on a theory of supervisory liability

because they failed to train jailers properly about when to conduct strip searches,

instead adhering to the general practice that required strip searches of all detainees

regardless of the charge or circumstances. 

We will assume that it was the practice of Habersham County to strip search

every detainee who was to be placed in the general population of the Jail. And 5

given the Circuit’s precedent, we must conclude the search of Plaintiff cannot be
10

justified under the Constitution on the single ground that Plaintiff was about to be

placed in the Jail’s general population. See Wilson v. Jones, 251 F.3d 1340, 1341,

1343 (11th Cir. 2001).

That conclusion, however, does not mean that Plaintiff’s own constitutional

rights were violated when she was searched: just because she was strip searched

at a jail that had a search practice that would generally violate the Constitution

does not mean every search that was conducted actually violated the Constitution. 

Skurstenis v. Jones, 236 F.3d 678, 682 (11th Cir. 2000). We said in Skurstenis

that “‘reasonable suspicion’ may justify a strip search of a pretrial detainee.” Id. 

Because we conclude that reasonable suspicion existed for this particular strip

search, we also must conclude that no constitutional right was violated by the

search.

“Whether an officer has a reasonable suspicion is an objective question

viewed from the standpoint of a reasonable [] officer at the scene. It is based on

the totality of the circumstances, and is a question of law to be reviewed de novo.” 

Evans, 407 F.3d at 1280 (citations omitted).

Plaintiff was arrested and charged with family violence battery under

O.C.G.A. § 16-5-23.1, the elements of which are “intentionally caus[ing]

substantial physical harm or visible bodily harm” to a “past or present spouse.” Id.
11

§ 16-5-23.1(a), (f). This crime is obviously one of violence. We accept that a

person’s being charged with a crime of violence is sufficient to evoke reasonable

suspicion that the person may be concealing weapons or contraband. Accord

Masters v. Crouch, 872 F.2d 1248, 1255 (6th Cir. 1989) (“It is objectively

reasonable to conduct a strip search of one charged with a crime of violence before

that person comes into contact with other inmates.”).

We know that both the arresting officer and the jail shift supervisor testified

that they -- based on their interactions with Plaintiff that evening -- did not

subjectively suspect Plaintiff of possessing weapons or drugs. But whether

reasonable suspicion existed at the time is a question of law to be determined

ultimately by judges, not policemen or jailers. And the question we are faced with

here is not whether a specific arresting officer or jailer actually and subjectively

had the pertinent reasonable suspicion, but whether, given the circumstances,

reasonable suspicion objectively existed to justify such a search. That no one, at

the time, actually conducted a “reasonable suspicion” analysis is unimportant to

whether reasonable suspicion objectively existed, given the circumstances. The

subjective intentions and beliefs of the jailers conducting the strip search “are

immaterial to the Fourth Amendment analysis.” Evans, 407 F.3d at 1280 n.9,

citing Graham v. Connor, 109 S.Ct. 1865, 1872 (1989).
12

Plaintiff argues that the three cases cited by Defendants, Cuesta v. School

Bd. of Miami-Dade County, 285 F.3d 962 (11th Cir. 2002); Skurstenis, 236 F.3d

at 678; and Justice v. Peachtree City, 961 F.2d 188 (11th Cir. 1992), are inapposite

to whether Clouatre had reasonable suspicion to strip search Plaintiff based solely

on an arrest charge: in those cases, this Court considered circumstances other than

the arrest charge in determining that reasonable suspicion existed for the strip

searches. Cuesta, 285 F.3d at 970-71 (violent and hateful language in pamphlets

distributed by school children included in arrest affidavit); Skurstenis, 236 F.3d at

682 (.38 revolver in car at time of arrest); Justice, 961 F.2d at 194 (suspicious

drug-related activity at time of arrest made in drug-related location).

We agree that those cases are not controlling, but for another reason: none

of those cases involved an arrest for an obvious crime of violence. Cuesta, 285

F.3d at 965 (plaintiff charged with distributing publications that “tend to expose

persons to hatred, contempt, or ridicule”); Skurstenis, 236 F.3d at 680 (plaintiff

charged with DUI); Justice, 961 F.2d at 190 (plaintiff charged with loitering and

truancy).
 Plaintiff does not argue that this search was performed in an abusive manner, and we see no

6

evidence of abuse in the record. Cf. Evans, 407 F.3d at 1281.

13

We conclude that the strip search performed on Plaintiff violated no

constitutional right. Accordingly, we reverse the judgment of the district court 6

denying summary judgment to Clouatre. Because we conclude that Plaintiff’s

constitutional rights were not violated by the search, Plaintiff cannot maintain a §

1983 action for supervisory liability against Sheriff Moore, Captain Ausburn, or

Sergeant Gosnell for failure to train. Rooney v. Watson, 101 F.3d 1378, 1381 n.2

(11th Cir. 1996). We also reverse the district court’s denial of summary judgment

to Moore, Ausburn and Gosnell on that basis.

B. The Fingerprinting.

Plaintiff claims her Fourth Amendment rights were violated when Officer

Highfill fingerprinted her in a way that caused her body repeatedly to be pressed

against Highfill’s back. In her brief, Plaintiff contends Highfill’s acts violated the

Fourth Amendment; the brief says that it is an obvious violation of the Fourth

Amendment to “fondle,” “grope” and “sexually assault” a pretrial detainee. But in

her complaint and deposition, Plaintiff herself never used such words and does not
 “Claims involving the mistreatment of arrestees or pretrial detainees in custody are governed by 7

the Fourteenth Amendment’s Due Process Clause,” and require a showing of deliberate indifference

to a substantial risk of serious harm. Cottrell v. Caldwell, 85 F.3d 1480, 1490 (1996). Plaintiff

asserts protection under the Fourth Amendment standard, which is commonly an easier standard for

a plaintiff to meet. At the time of the fingerprinting, Plaintiff had already been arrested, delivered

to the Jail, and had begun -- but not completed -- the booking process. The original arresting officer

had turned Plaintiff over to jailers, and he was not present during and did not participate in the events

underlying the complaint. The precise point at which a seizure ends (for purposes of Fourth

Amendment coverage) and at which pretrial detention begins (governed until a conviction by the

Fourteenth Amendment) is not settled in this Circuit. We underline that Defendants never argue that

the strip search or fingerprinting was separate from Plaintiff’s seizure; so we -- will assume (for this

case) Plaintiff was still being seized and -- analyze the claim under the Fourth Amendment.

14

hint at sexual impropriety on Highfill’s part; she describes Highfill’s conduct

during the fingerprinting process as “just doing his job” and that Highfill “w[as

not] mean to me.” For example, no sexual language (or even sexually suggestive

language) accompanied the fingerprinting. 

After the dust has settled on this claim, what remains is that Plaintiff -- an

adult who was always fully clothed -- was uncomfortable when she was being

fingerprinted because her body was pulled into the back of Officer Highfill with

the rolling of each finger. Plaintiff, at the time, said nothing about her

discomfort; nor did she claim -- then or in her complaint, deposition or brief -- that

she was hurt or injured physically.

We acknowledge that a Fourth Amendment violation can occur without 7

much force being applied during a seizure. The Amendment protects people from

“unreasonable” seizures, and “unreasonable” contemplates “more than the
15

unnecessary strike of a nightstick, sting of a bullet, [or] thud of a boot.” Fontana

v. Haskin, 262 F.3d 871, 878 (9th Cir. 2001) (concluding police officer’s “sexual

verbal and physical predation against a handcuffed arrestee” on ride to police

station was Fourth Amendment violation). Apart from excessive force, we

recognize that “harassing and abusive behavior” by an officer towards a detainee

during a seizure can, in some cases, rise to the level of “unreasonable” for Fourth

Amendment purposes. See id. at 879. But we stress that not every intrusion,

touching, discomfort or embarrassment during an arrest is actionable as a violation

of the Fourth Amendment. Some of these acts may be provably accidental or just

too insignificant and thus within the range of the constitutionally reasonable. Id.

at 880; cf. Vinyard v. Wilson, 311 F.3d 1340, 1344, 1348 n.13 (11th Cir. 2002)

(concluding de minimis force when officer dragged plaintiff inside jail, following

arrest, “either by her shirt, her arm, or her hair”); Jones v. City of Dothan, Ala.,

121 F.3d 1456, 1460 (11th Cir. 1997) (concluding de minimis force when officers

“slammed” plaintiff against wall). We conclude that the pertinent fingerprinting

conduct is of that nature.

“The overriding function of the Fourth Amendment is to protect personal

privacy and dignity against unwarranted intrusion by the State.” Schmerber v.

California, 86 S.Ct. 1826, 1834 (1966). We accept that Plaintiff was
16

uncomfortable with the fingerprinting process when she was touching the back of

Officer Highfill with her body. We also accept that Officer Highfill’s subjective

intentions are unimportant in determining whether the complained-of touching

was -- objectively -- too much of an affront to Plaintiff’s personal privacy and

dignity in a constitutional sense and, therefore, unreasonable under the Fourth

Amendment. “What is reasonable, of course, depends on all of the circumstances

surrounding the search or seizure and the nature of the search or seizure itself.” 

Skinner v. Railway Labor Executives’ Ass’n, 109 S.Ct. 1402, 1414 (1989)

(internal quotation marks omitted). We conclude that the touching complained of

by Plaintiff -- given the business-like circumstances surrounding the fingerprinting

of an arrested person and the limited and coincidental nature of the touching --

was too slight and was within the outside borders of what is reasonable under the

Fourth Amendment.

II. State-Law Claim

Plaintiff also brought a claim against Officer Highfill under Georgia law for

assault and battery for the fingerprinting. Highfill denies ever using the
17

fingerprinting method alleged and denies altogether taking Plaintiff’s fingerprints. 

The district court properly left this factual dispute for a jury to decide.

We affirm the district court’s denial of state-law official immunity to

Officer Highfill on this state-law claim. The Georgia Constitution immunizes

state officials from suit for conduct performed in the line of duty if their acts are

(1) discretionary and done without malice; or (2) ministerial and done without

negligence. Ga. Const. art. I, § 2, ¶ 9(d) (amended 1991). Although the jury in

this case may ultimately decide the facts differently, we conclude that evidence is

in the record to support a finding -- assuming at this stage that Highfill was the

one that fingerprinted Plaintiff -- that Highfill acted with malice (Plaintiff said she

felt “toyed with” during the booking process) and acted negligently (officers

testified that the fingerprinting method used was inadvisable). Reading the record

in Plaintiff’s favor, whether Highfill’s fingerprinting of Plaintiff in the manner

alleged was discretionary or ministerial makes no difference; official immunity

would protect him in neither case. Accordingly, Highfill is not entitled to

summary judgment on this claim.

Conclusion
 Today’s decision, in effect, eliminates all federal claims in this case, leaving only Plaintiff’s 8

state-law claims. We allow the district court to exercise its discretion, under the Gibbs doctrine, to

decide whether or not to consider Plaintiff’s state-law claims on remand. See United Mine Workers

of America v. Gibbs, 86 S.Ct. 1130, 1139 (1966) (“Certainly, if the federal claims are dismissed

before trial, . . . the state claims should be dismissed as well.”); Raney v. Allstate Ins. Co., 370 F.3d

1086, 1088-89 (11th Cir. 2004) (“The decision to exercise supplemental jurisdiction over pendant

state claims rests within the discretion of the district court. We have encouraged district courts to

dismiss any remaining state claims when, as here, the federal claims have been dismissed prior to

trial.”) (citation omitted).

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Given the circumstances, we see no constitutional violation in Plaintiff’s

strip search. So, we reverse the denial of summary judgment to Dispatcher

Clouatre on the Fourth Amendment claim; and we reverse the denial of summary

judgment to Sheriff Moore, Captain Ausburn and Sergeant Gosnell on the

supervisory liability claim. Given the circumstances, the contact with Plaintiff

during the fingerprinting process was too slight to amount to a constitutional

violation; so, we reverse the denial of summary judgment to Officer Highfill on

this federal claim.

We affirm the denial of state-law official immunity to Officer Highfill on

the assault and battery claim for the fingerprinting.

AFFIRMED IN PART, REVERSED IN PART, and REMANDED.8