* United States District Judge for the Western District of

Texas, sitting by designation.

** This opinion replaces the August 19, 2003 opinion in this

case, 343 F.3d 689 (5th Cir. 2003), which is hereby withdrawn. United States Court of Appeals

Fifth Circuit



## FILED

December 9, 2003

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________________

No. 02-10500

__________________________

OSCAR D. WILLIAMS, JR; ET AL,

Plaintiffs,

THOMAS GENE BROWN, CECIL JACKSON; L.B. BRUMLEY

Plaintiffs-Appellants-Cross-Appellees,

versus

KAUFMAN COUNTY; ROBERT HARRIS, Kaufman County Sheriff,

Defendants-Appellees-Cross-Appellants.

___________________________________________________

Appeals from the United States District Court

for the Northern District of Texas

___________________________________________________

Before WIENER and BARKSDALE, Circuit Judges, and FURGESON, District

Judge. *

WIENER, Circuit Judge: **

Plaintiff-Appellants Thomas Gene Brown, Cecil Jackson and L.B.

Brumley (collectively “plaintiffs”) appeal the district court’s

denial of their unlawful detention, invasion of privacy, and oral

harassment claims in their § 1983 suit against Sher iff Robert1 According to the district court, the Kaufman County

Sheriff’s department considers the execution of a narcotics

2 Harris (“Harris”) and Kaufman County, Texas (“the County”),

(collectively, “defendants”). Defendants cross-appeal the district

court’s judgment in favor of plaintiffs on their claims for illegal

strip search, municipal liability against the county, nominal and

punitive damages against Harris in his personal capacity, and state

constitutional declarative relief. For the following reasons, we

affirm.

I. FACTS AND PROCEEDINGS

In April of 1995, Sheriff Harris obtained a search warrant,

based on information he received from a confidential informant, for

a night club called the “Classic Club” in Terrell, Texas (the

“Club”). The affidavit used to secure the warrant identified five

i ndividuals suspected of dealing crack cocaine, none of whomare

the plaintiffs here, and included as suspects “all other person or

persons whose nam es, identities, and descriptions are unknown to

the affiant.” The warrant itself, however, only authorized the

police to “enter the suspected place described in [the affidavit]

and to there se arch for the personal property described...and to

seize same and to arrest and bring before [the magistrate] each

suspected party named in [the affidavit].”

A t about 9:45 p.m. the same day, Harris led a conti ngent of

approximately forty (40) officers to the Club to ex ecute the

“hazardous” warrant. 1 Although some individuals were able to runwarrant a “hazardous entry,” where weapons are likely to be

present. Additionally, in a March 1994 search of the Club,

police found drugs, drug paraphernalia, and a concealed .25

caliber pistol. After this search, Harris apparently received an

anonymous telephone call threatening to kill him if he returned

to the Club. Harris also testified that an officer had been shot

at previously while attempting to execute a warrant at the Club.

3 away, and others outside the premises allegedly hurled bottles and

rocks at the officers, the law enforcement personnel were able to

secure the outer perimeter of the search area, which included the

Club’s building and parking lot, and the entire city block up to

the roadway. On entering the Club, the officers noticed drugs on

the floors and tables.

Plaintiffs Cecil Jack son and L.B. Brumley were inside the

Club; plaintiff Thomas Gene Brown was outside, but when he

repeatedly atte mpted to gain admittance, an officer arrested him

and took him inside to be searched. The police detained

approximately 100 people, including plaintiffs, inside the Club for

about three hours. During that time, officers conducted a pat-down

search, strip search, and warrants check on each individual there.

Although strip searches were not part of any written policy

concerning the execution of hazardous warrants, Harris testified

that it was his standard policy to conduct a strip search on each

person within the search area, with or without individualized

probable cause. Also, pursuant to this “policy,” the officers

rehandcuffed plaintiffs (and all other detainees) and continued to

detain them after the strip searches until the entire search of the2 Plaintiff brought a variety of other claims, such as

excessive force, civil conspiracy, assault and battery, and

intentional infliction of emotional distress, but all were

rejected on summary judgment and have not been appealed to us.

4 Club and all occupants had been co mpleted. Brumley got

obstreperous after he was strip searched and was arrested for

disorderly conduct.

Three years later, 17 individuals brought suit under § 1983,

claiming that Harris and the County violated their Fourth Amendment

rights by engaging in an illegal strip search, unlawful detention

a nd oral harassment. 2 Four plaintiffs were dismissed, and 10

o thers settled their claims. The three remaining plaintiffs

(plaintiffs-appellants herein) unsuccessfully attempted to amend

their complaint, in part to include an invasion-of-privacy claim.

At the summary judgment stage, the district co urt granted

summary judgment in favor of defendants on (1) the unlawful

detention claims of those plaintiffs inside the Club when the

premises were secured; (2) plaintiffs’ invasion of privacy claims;

and (3) plaintiffs’ verbal harassment claims . The court denied

defendants’ summary judgment motion on (1) plaintiffs’ illegal

strip search claim; (2) the unlawful detention claims of plaintiffs

who were not originally in the Club, but were brought in only after

the premises were secured; and (3) plaintiffs’ policy claims

against Kaufman County.

After conducting a bench trial, the district court concluded

that (1) Harris had conducted an unconstitutional strip search of3 The district court dismissed the unlawful detention claims

of all of the Group 1 plaintiffs, who consisted of those inside

the Club when the premises were secured by police, but allowed to

go to trial the detention claims of the Group 2 plaintiffs, who

consisted of those outside of the Club when the premises were

secured. Plaintiff Thomas Gene Brown was outside the Club when

the premises were secured, and therefore should have been named

in Group 2. When the court described the different groups of

plaintiffs, however, it placed Brown in Group 1. As the court

subsequently addressed Brown’s unlawful detention claim at trial,

the implied inclusion of his name in Group 1 at the summary

judgment stage appears to have been an inadvertent and harmless

mistake.

5 plaintiffs, and he is not entitled to qualified immunity because

the rule of law prohibiting these searches was clearly established

at the time, making Harris’s conduct objectively unreasonable; (2)

Harris is ent itled to qualified immunity on Brown’s illegal

d etention claim, the only detention claim surviving summary

judgment; 3 and (3 ) Kaufman County is liable for Harris’s conduct

because Harris is a policymaker whose actions (specifically, his

orally established policy of conducting strip searches irrespective

of the absence of reasonable suspicion) had been the moving force

behind the violation of plaintiffs’ constitutional rights.

Based on these rulings, the court awarded each plaintiff

“nominal damages” of $100, and punitive damages of $15,000 against

H arris in his individual capacity. The court also awarded

plaintiffs declaratory relief, decreeing that Harris and the County

had violated plaintiffs’ rights under Article I, section 9 of the

Texas Constitution. The court rejected plaintiffs’ claim for4 The court also directed the parties to attempt to resolve

the attorneys’ fees issues themselves.

5 Harper v. Harris County , 21 F.3d 597, 600 (5th Cir. 1994).

6 Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett , 477 U.S.

317, 322-23 (1986).

7 Harper , 21 F.3d at 600.

8 Sockwell v. Phelps , 20 F.3d 187, 192 (5th Cir. 1994).

9 Cooper Indus., Inc. v. Leatherman Tool Group, Inc. , 532

U.S. 424, 436 (2001).

6 i njunctive relief. 4 Both plaintiffs and defendants timely filed

notices of appeal.

II. ANALYSIS

A. Standard of Review

We review the district court’s summary judgment decision d e

nov o

. 5 Summary judgment is only proper if there is no genuine

issue of material fact and the moving party is entitled to a

judgment as a matter of law. 6 To determine whether there are any

material factual issues, we consult the applicable substantive law

to define which issues are material, and then consider the evidence

relevant to those issues in the light most favo rable to the nonmoving party. 7

We review the district court’s bench trial conclusions of law

de novo

, and findings of fact for clear error. Finally, we review

the district court’s decision to award punitive damages for abuse

of discretion, 8 and examine the constitutionality of the amount of

such an award de novo

. 97

B. Parties’ Contentions

Because the district court addressed plaintiffs’ claims at

both the summary judgment and trial stages of the litigation, and

because the parties appeal different aspects of the judgments

rendered, we briefly summarize the parties’ contentions on appeal

in the interest of clarity.

Plaintiffs make four claims (1) Harris supervised an unlawful

detention, which was objectively unreasonable, pretermitting

qualified immunity; (2) Harris’s search method amounted to an

invasion of plaintiffs’ privacy; (3) the officers’ use of racial

epithets violated plaintiffs’ Fourth Amendment rights; and (4) the

County is l iable for the constitutional violations caused by

Harris’s conduct. In short, plaintiffs contest essentially all of

the district court’s summary judgment holdings adverse to them.

For their part, defendants argue that (1) within the context

of executing a hazardous search warrant, it was proper for the

officers under Harris’s command to conduct strip searches; but even

if plaintiffs’ rights were vi olated, Harris deserves qualified

immunity; (2) Harris acted reasonably in detaining plaintiffs until

the completion of the entire search of the Club; but even if Harris

acted unlawfully, he is entitled to qualified immunity; (3) the

district court properly dismissed plaintiffs’ claims of invasion of

privacy for their failure to plead such claims; (4) the district

court properly denied plaintiffs’ claims of oral harassment because10 536 U.S. 730 (2002).

11 Roe v. Texas Dep’t of Protective and Regulatory Serv.

, 299 F.3d 395, 408-09 (5th Cir. 2002).

12 The district court outlined a three step inquiry,

examining (1) whether a constitutional right was violated, (2)

whether that right was clearly established, and (3) whether the

officers engaged in objectively unreasonable conduct. The

district court, however, unnecessarily decoupled the clearly

established/objective unreasonableness test of the Supreme Court.

That is, if a right is clearly established enough to impart fair

warning to officers, then their conduct in violating that right

cannot be objectively reasonable.

13 Hope , 536 U.S. at 736 ( citing Saucier v. Katz , 533 U.S.

194, 201 (2001).

8 plaintiffs failed to plead an equal protection claim under the

Fourteenth Amendment; (5) the district court erred i n assessing

nominal (insisting that $100 per plaintiff is not nominal) and

punitive damages; (6) the district court erred in finding that

defendants violated the Texas Constitution; and (7) the County is

not liable for conduct that does not amount to a constitutional

violation.

C. Qualified Immunity Standard

To prevail in a § 1983 suit, a plaintiff must overcome an

officer’s defense of qualified immunity. Last term, in H ope v.

Pelzer

, the Supreme Court rendered its most recent articulation of

this standard, 10 which we subsequently adopted. 11 To determine

whether relief is appropriate, the court must undertake a two-step

analysis. 12 First, the court must evaluate whether a “plaintiff’s

allegations, if true, establish a constitutional violation.” 13 We14 Id. at 739 ( quoting Harlow v. Fitzgerald , 457 U.S. 800,

818 (1982)).

15 Id. ( quoting Anderson v. Creighton , 483 U.S. 635, 640

(1987)).

16 Id. at 740 (relying on its reasoning and holding in

United States v. Lanier , 520 U.S. 259 (1997)).

17 Id. ( quoting Lanier , 520 U.S. at 269). According to the

Hope court, Lanier explained “that the ‘fair warning’ requirement

is identical under § 242 and the qualified immunity standard.”

9 address this inquiry in greater detail in connection with each of

the contested constitutional claims.

Second, if a constitutional violation is found to have

occurred, the court must determine whether the defendant’s actions

violated “clearly established statutory or constitutional rights of

which a reasonable person would have known.” 14 The Hope Court

reiterated the standard for a constitutional right to be cl early

established:

[I]ts contours “must be sufficiently clear that a

reasonable official would understand that what he is

doing violates that right. This is not to say that an

official action is protected by qualified immunity unless

the very action in question h as previously been held

unlawful....but it is to say that in the light of preexisting law the unlawfulness must be apparent.” 15

In Hope

, the Court clarified that the factual situation from which

the pre-existing constitutional right developed does not have to be

“fundamentally similar” to the one before a court when addressing

qualified immunity. 16 Rather, qualified immunity can be overcome

as long as “‘prio r decisions gave reasonable warning that the

conduct then at issue violated constitutional rights.’” 17 The CourtHope , 536 U.S. at 740.

18 Id. at 741.

19 Id. The Hope Court addressed Alabama’s practice of

handcuffing inmates to a “hitching post” as a disciplinary

remedy. The Court concluded that prior precedent, an Alabama

regulation and a DOJ warning all sufficed to give prison

officials fair warning that their hitching post practice violated

the Eighth Amendment. Id. at 741-46. In particular, the

precedent it relied on already prohibited (1) handcuffing inmates

to fences for long periods of time, and (2) physical punishment

that occurred after a prisoner had terminated his resistance to

authority. Id. at 742-43.

20 444 U.S. 85, 88 (1979).

10 concluded that “officials can still be on notice that their conduct

violates established law even in novel factual circumstances.” 18

The appropriate inquiry, therefore, is “whether the state of

the law [at the time of the violation] gave [defendants] fair

warning that their alleged treatment of [plaintiffs] was

unconstitutional.” 19

D. Unlawful Strip Search

1. Whether Harris’s conduct violated the Fourth Amendment

On appea l, defendants argue that, within the context of

executing a hazardous search warrant, it was proper for Harris to

conduct strip searches of plaintiffs. In Ybarra v. Illinois , the

Supreme Court addressed the search of a bar patron, which occurred

during the execution of a search warrant that authorized police to

search the Aurora Tavern and a bartender named “Greg” for heroin

and other contraband. 20 The Court accepted that police had a valid

warrant to search the premises, but concluded that “it gave them no21 Id. at 92.

22 Id. at 91 (emphasis added).

23 Id. at 92-93.

24 Id. at 94 (emphasis added).

11 authority whatever to invade the constitutional protections

possessed individually by the tavern’s customers.” 21 Reasoning

further, the Court stated:

“[A] person’s mere propinquity to others independently

suspected of criminal acti vity does not, without more,

g ive rise to probable cause to search that

person....Where the standard is probable cause, a search

or seizure of a person must be supported by probable

cause particularized with respect to that person . This

requirement cannot be undercut or avoided by sim p ly

pointing to the fact that coincidentally there exists

probable cause to s earch or seize another or to search

the premises where the person may happen to be. 22

The Court also concluded that even the initial frisk of the

patron, Ybarra, much less his subsequent search, was unjustified. 23

Although Terry v. Ohio created an exception to the probable cause

requirement, allowing police officers to protect themselves by

conducting a patdown of a suspect, the Ybarra court held that

“[t]he ‘narrow scope’ of the Terry exception does not permit a

frisk for weapons on less than reasonable belief or suspicion

directed at the person to be frisked

, even though that person

happens to be on premises where an authorized narcotics search is

taking place.” 24

Here, the district court concluded, relying primarily on

Ybarra , that Harris’s strip search of plaintiffs violated their25 As Ybarra held, “[n]othing in Terry can be understood to

allow...any search whatever for anything but weapons.” 444 U.S.

at 93-94. The Court also stated that “a law enforcement officer,

for his own protection and safety, may conduct a patdown to find

weapons that he reasonably believes or suspects are then in the

possession of the person he has accosted.” Id. at 93.

12 Fourth Amendment rights. On appeal, Harris and the County contend

that the violent history of the Club created exigent circumstances,

which threatened officer safety and thus justified the strip search

of the plaintiffs. In contrast to Y barra

, they argue, the exigent

circumstances in this case presented a situation in which there was

“more” than plaintiffs’ “mere propinquity to others independently

suspected of criminal activity.”

Although the discrete facts of this case differ from Ybarra

,

those differ ences are not sufficient to create a meaningful

distinction. Ybarra squarely held that in premises searches like

this one, police must have either articulable reasonable suspicion

to frisk an individual or probable cause to search him. The record

evidence, in particular Harris’s own testimony, reflects that, visà-vis the plaintiffs, the police lacked even reasonable suspicion.

None of the plaintiffs was named in the warrant, and Harris offered

no reasonable belief that the plaintiffs in particular were armed

or engaged in criminal activity. Even if, based solely on the

Club’s history, it had been reasonable for Harris to suspect that

plaintiffs were armed or carrying drugs, searching them would still

have been unlawful: Y barra reiterated that the Terry -style search

is limited to a frisk for weapons

. 25 Harris’s officers frisked the26 The district court also found that Bell v. Wolfish , 441

U.S. 520 (1979) justifies strip searches on the reasonable

suspicion that an individual is concealing weapons or contraband.

Bell , however, dealt with pre-trial detainees who were awaiting

trial on serious federal charges. Stewart v. Lubbock County , 767

F.2d 153, 156 (5th Cir. 1985) (explaining Bell ’s holding). Thus,

the intrusiveness/law enforcement interests balance was more

heavily in favor of law enforcement than the one conducted here,

in which the police lacked both articulable reasonable suspicion

and probable cause of wrong-doing to conduct any type of search.

13 plaintiffs, but found no evidence of weapons, drugs or contraband

to ripen into the probable cause required for a full-blown search.

Harris testified that the office rs conducting the search had no

individualized probable cause as to any of the plaintiffs.

Instead, he stated only that there was “probable cause to believe

that everyone in there may have had drugs on them.” Finally, as

the district court reasonably explained, the intrusiveness of the

search outweighed the legitimate law en f orcement interests in

protection and safety, because the officers had already handcuffed

and patted down the plaintiffs before forcing them to undergo strip

searches. 26

Neither of the other two potential jus tifications for the

strip search

—— arres t or identity in a warrant —— mitigate the

unlawfulness of the search. First, although two of the plaintiffs,

Brumley and Brown, were arrested that evening, ne ither of the

arrests justified strip searches under the applicable law. Brumley

was arrested for disorderly con duct a fter he was strip searched;

thus his post hoc arrest could not have justified the search.

Brown was arrested before the search, but for attempting to enter27 Watt v. Richardson Police Dep’t , 849 F.2d 195, 199 (5th

Cir. 1988) Stewart , 767 F.2d at 156-57

.

14 the Club (claiming he owned it) in spite of an officer’s order to

leave the area.

We have allowed strip sea rches in custodial situations but,

consistently, not when the suspect has committed only a minor

offense and there exists no reasonable suspicion that he might

possess weapons or contraband. 27 Although Brown was attempting to

enter a Club in which drugs were found, defendants offer no

evidence for suspecting that he posse ssed weapons or contraband.

Indeed, Harris admitted that he had no probable cause toward Brown;

the arresting officer testified that he had no suspicion that Brown

was carrying weapons; and prior to the strip search the officers

took everything out of Brown’s pockets, r evealing no weapons or

drugs, and thereby dispelling any suspicion of illegal activity.

As a result, the subsequent strip search, aft er reasonable

suspicion had failed to mature in to probable cause, was

unreasonably intrusive.

Second, the affidavit that Harris filed to obtain the warrant

was insufficient to justify a strip search of plaintiffs. The

affidavit submitted for the warrant included as suspects “all other

person or persons whose names, identities, and descriptions are

unknown to the affiant.” The warrant itself only authorized the

police to “enter the suspected place described in [the affidavit]

and to there search for the personal property described...and to28 444 U.S. at 92, n.4.

29 849 F.2d 195 (5th Cir. 1988).

15 seize same and to arrest and bring before [the magistrate] each

suspected party named in [the affidavit]” (emphasis added). None

of the plaintiffs was named as a suspect in the affidavit.

Furthermore, as Ybarra conf irmed, because the Fourth Amendment

requires particularity, “‘open-ended’ or ‘general’ warrants are

constitutionally prohibited.” 28 To construe this warrant as

authorizing a general search of any person found in the Club would

sanction exactly the type of general warrant that the Constitution

forbids.

In sum, the strip search of the plaintiffs was unlawful

because Harris lacked probable cause toward each of them.

2. Whether the law was “clearly established”

The district court concluded that “no reasonable officer could

have believed that conducting a strip search in these

circumstances, without probable cause or reasonable suspicion, was

objectively reasonable.” The court noted that both Y barra and Watt

v. Richardson Police Department 29 clearly established that strip

searches conducted without individualized reasonable suspicion or

probable cause are unlawful. On appeal, Harris contends that

reasonable officers could have disagreed about the legality of the

strip s earch because of the hazardous conditions surrounding the30 Kaufman only argues on appeal that the strip search was

constitutional, and does not raise the qualified immunity issue.

31 Ybarra , 444 U.S. at 91.

16 execution of the search warrant. 30

Hope instructs that once it is clear that a const itutional

violation has occur red, courts must examine whether the state of

the law at t he time gave the defendants fair warning that their

behavior toward the plaintiffs was unlawful. In this case, we

agree with the district court that Ybarra and our case law on strip

searches provided fair warning to Harris that his condu ct was

unlawful. Y barra addressed a situati on substantially similar to

the o ne here, and explicitly held that officers must have

reasonable suspicion to conduct a frisk or individualized probable

cause to conduct a lawful search. Even accepting that there were

aspects of this warrant’s search that made it more hazardous than

the one conducted in Ybarra , or made it more likely that multiple

persons would be in possession of drugs, none of these extenuating

circumstances created probable cause or reasonable suspicion

“particularized with respect to [plaintiffs].” 31 And even if

hazardous circumstances had given rise to reasonable suspicion that

plaintiffs, by being present, might have possessed weapons or

contraband, Harris should have known that his officers were limited

to a patdown of each plaintiff. Thus, to the extent this case

differs factually from Ybarra

, it still fits comfortably under the

general rule promulgated by the Supreme Court in that case.32 767 F.2d at 156 ( citing Bell v. Wolfish , 441 U.S. 520,

559 (1979)).

33 Id. at 156-57 (emphasis added).

34 849 F.2d at 197, 199.

17 Indeed, Harris’s declaration that “we did have probable cause to

believe that everyone in [the Club] may have had dru gs on them”

demonstrates his unjustified disregard or deliberate ignorance of

the rule articulated by the Ybarra court.

In addition, our p rohibition of strip searches in other

contexts presented more than fair warning at the time that the

strip searches at issue here were illegal. In Stewart v. Lubbock

C ounty , we employed the test articulated in B ell v. Wolfish

,

balancing law enforcement interests in the search against the level

of invasion of personal rights caused by the search. 32 We concluded

that the strip search policy at issue there violated the Fourth

Amendment because it applied to minor offenders about whom the

police had no reasonabl e suspicion of possessing weapons or

contraband. 33 Similarly, in Watt v. Richardson Police Department

,

we recognized that even though strip searches of inmates were often

allowed to maintain institutional security, when an arrestee’s

offense is minor, his criminal history innocuous or ancient, and

his perso nal characteristics at odds with reasonable fears about

prison security, the strip search is illegal. 34

Unlike both Stewart and Watt , this case concerns individuals

outside the prison context, thus individuals toward whom the police35 In both of those cases, there was no allegation that the

privacy of the suspect was compromised. Here, however,

plaintiffs alleged that they were not afforded the requisite

privacy, and the district court found that the searches were

conducted “in an atmosphere of questionable privacy.”

18 had even less individualized reasonable suspicion or probable cause

—— none, to be precise. Thus, if any law enforcement interest

existed at all, it concerned only officer safety, not prison

security. After handcuffing and patting down the plaintiffs here,

however, even this law enforcement interest ceased to exist. On

appeal, Harris and the County repeatedly encant the hazardous

conditions of the search, yet Harris admits that he had no

i ndividualized probable cause that any of the plaintiffs had

weapons, drugs or contraband. Furthermore, even though Brown was

arrested before he was strip searched, he was arrested because he

interfered with the duties of a public servant, not because of any

probable cause or reasonable suspicion related to drugs or weapons.

To the extent the police were legitimately worried about their

safety in regard to Brown or any other individuals before or during

the searches, those concerns surely evanesce d once the officers

handcuffed and patted down the plaintiffs. At that point, the law

enforcement interests were substantially less significant than

those in either Stewart or Watt

. Finally, weighed against this

interest, the invasion of personal rights caus ed by the strip

searche s here are at least if not more intrusive than in either

Stewart or Watt

. 35 In short, S tewart and Watt also provided fair19

warning to Harris that law enforcement interests in safety did not

justify the extreme intrusiveness of strip searches especially once

the plaintiffs were handcuffed and patted down.

In sum, Ybarra

, Stewart and Watt dispel any doubt that the law

was clearly established by the night of the raid in April, 1995,

that strip searching individuals, about whom the police had no

individualized probable cause of weapon or drug possession, was

unlawful. This in turn precludes Harris’s entitlement to qualified

immunity.

E. Unlawful Detention

1. Whether Harris’s conduct violated the Fourth Amendment

The district court rejected Brumley’s and Jackson’s unlawful

detention claims at summary judgment and rejected Brown’s claim

after the bench trial, all on qualified immunity grounds. The

court concluded that despite its reservations about the length of

detention, under Michigan v. Summers it was not obje ctively

unreasonable for the officers to detain all those present in the

Club, including plaintiffs, until completion of the search.

Although Brown was not on the premises when the search began, the

cour t nonetheless also concluded that his detention was not

objectively u nreasonable, inasmuch as Brown had voluntarily come

within the search perimeter by insisting on entering the Club,

despite warnings to leave the area.

On appeal, plaintiffs claim that the court erred in granting36 Plaintiffs also assert that they were detained for three

hours after completion of the strip search. This assertion is

contradicted by the district court’s factual finding and record

testimony that they entire search of the Club lasted only about

three hours.

37 452 U.S. 692, 699-701 (1981).

38 Id. at 700.

39 Id. at 699-700.

20 summary judgment against Brumley and Jackson, and judgment against

Brown, on their detention claims. Plaintiffs contend that there

was no justifiable reason to detain plaintiffs after they were

strip searched and cleared of outstanding warrants. Their

continued, re-handcuffed detention, they argue, was not the least

intrusive method available to the police, and thus co nstituted

unlawful detention. 36

In Michigan v. Summers

, the Supreme Court reiterated the

approach by which a seizure must be analyzed. 37 There is a “general

rule that every arrest, and every seizure having the essential

attributes of a formal arrest, is unreasonable unless it is

supported by probable cause.” 38 This rule is tempered, however, by

the “ultimate standar d of reasonableness embodied in the Fourth

Amendment.” 39 Thus, some seizures, even though longer than

momentary, “con stitute such limited intrusions on the personal

security of those detained and are justified by such substantial

law enforcement interests that they may be made on less than

probable cause, so long as police have an articulable basis for40 Id. at 699.

41 Id. at 700.

42 Id. at 700-01.

43 Id. at 701-02.

21 suspecting criminal activity.” 40 Such intrusions are “not confined

to the momentary, on-the-street detention accompanied by a frisk

for weapons,” as was involved in Terry v. Ohio

. 41

For determining whether a seizure falls into this exception

to the general rule, the Court set out a familiar balancing test,

which weighed the character of the intrusion against the character

of the justification. 42 In S ummers

, the Court addressed whether

police who were about to execute a warrant to search a house acted

permissibly when they detained an individual who was emerging from

the house and who turned out to be the owner, while they conducted

the search. The Court found the intrusion substantially less

invasive than an arrest because (1) the police conducted the search

pursuant to a valid warrant, which alread y authorized a

substantial, and arguably more in trusive, invasion of privacy of

the detainee’s home; (2) the officers were unlikely to prolong the

detention to gain more information because they were primar ily

seeking information from the search itself; and (3) the detention

w as inside the detainee’s home instead of the police station,

thereby minimizing the public stigma associated with the event. 43

In comparison, the character of the justification is measured44 Id. at 702.

45 Id. at 702-03.

46 Id. at 703-04.

47 Id. at 704-05.

22 by both law enforcement interests and the nature of the articulable

facts supporting the detention

. 44 The Court identified three law

enforcement interests, all of which supported the detention at

issue: (1) preventing the flight of the suspect; (2) minimizing the

risk of harm to the police; and (3) facilitating the orderly

completion of the search by having the occupant of the premises

present. 45 Furthermore, the existence of the valid search warrant,

issued by a neutral magistrate to search a home for criminal

activity, established probable cause that someone in the home was

committing a crime, which in turn provided justification for

detaining the home’s occupant. 46 The Court concluded:

If the evidence that a citizen’s residence is harboring

contraband is sufficient to persuade a judicial officer

that an invasion of the citizen’s privacy is justified,

it is constitutionally reasonable to require that citizen

to remain while officers of the law execute a valid

warrant to search his home. Thus, for Fourth Amendment

purposes, we hold that a warrant to search for contraband

founded on probable cause implicitly carries with it the

limited authority to detain the occupants of the premises

while a proper search is conducted. 47

In Heitschmidt v. City of Houston , we limited Summers to its

facts. We concluded that S ummers only holds that “ police have

limited authority to detain the occupant of a house without

probable cause while the premises is searched, when the detention48 161 F.3d 834, 838 (5th Cir. 1998).

49 Id. at 838. Heitschmidt was living with Anne Fucaluro,

who operated a prostitution ring. Fucaluro was arrested and

police obtained a warrant to search the house, but Heitschmidt

was not a target of the investigation, nor did police have

suspicion before the search that he was involved in any wrongdoing. Id. at 835.

50 Id. at 838.

51 Id. In particular, we noted that there was no evidence

that Heitschmidt was involved in the prostitution ring they were

investigating, or that he would use a weapon. Id.

52 Id. at 838-39.

23 is neither prolonged nor unduly intrusive, and when police are

executing a validly executed search warrant for contraband.” 48

Heitschmidt involved a police search of a house in which the

occupant, Heitschmidt, had little known connection at the time of

the search to the criminal activity for which the search warrant

was procured. 49 Although the police had a warrant to search the

house, we reasoned that the intrusiveness of the detention was

substantial because Heitschmidt was allegedly handcuffed o n the

street, pushed into the trunk of a car, and then detained for over

four hours without a bathroom break. 50 In comparison, we found the

justifications for detention unpersuasive, because there was little

evidence Heitschmidt would flee, or that such restraint was

required for police protection. 51 We reasoned further that a search

warrant is a weaker basis for detention when police know the

occupant’s identity and have no reasonable b asis for suspecting

that that person is engaged in criminal activity. 52 Finally, in53 Id. The Summers Court had specifically stated that it

did “not decide whether the same result [i.e. permissible

detention] would be justified if the search warrant merely

authorized a search for evidence.” 452 U.S. at 705, n.20.

54 Heitschmidt , 161 F.3d at 839.

24 contrast to Summers

, we noted that the search warrant was for

evidence of the other house occupant’s prostitution ring, not

specif ically for contraband. 5 3 On the basis of this analysis, we

concluded that Heitschmidt had adequately alleged a violation of

his Fourth Amendment rights, and that the right alleged was clearly

established. We therefore held the officers’ conduct to be

objectively unreasonable. 54

In this case, Harris and the County argue that the detention

was reasonable. The County avers that the plaintiffs were allowed

to move around and use the bathroom after their individual

searches, and that the three hour detention was reasonable because

there were 100 people on the premises. Defendants also argue that

the violent history of the Club, and Harris’s fear that those

r eleased early would return with firearms to harm the officers,

justified the lengthy detention.

There is no question that the seizure of plaintiffs had many

of the essential attributes of an arrest. We therefore must

determine whether the law enforcement interests outweighed

plaintiffs’ interest against intrusion as articulat ed in S ummers

and Heitschmidt . We begin by noting that some factual details of

this case distinguish it from our narrow interpretation of Summers55 Summers ultimately held that the authority to detain

occupants of premises was only permissible “while a proper search

is conducted.” 452 U.S. at 705 (emphasis added). Although Harris

had a valid warrant to search the premises, we have already

concluded that the strip search of plaintiffs was both improper

and illegal, and exceeded the scope of that warrant.

56 Because Brown’s nephew owned the Club, he apparently had

an interest in finding out what was happening at the Club. But

this interest did not necessarily include remaining at the Club

while the search was conducted. He had not been at the Club that

evening, and was brought inside after the police had begun the

raid. Thus, his possible reasons for being there are not the

same as the house owner in Summers or Heitschmidt

.

25 (1) Plaintiffs were customers at a public commercial establishment,

not occupants of a residence; and (2) plaintiffs were subjected to

unlawful, unduly intrusive strip searches during the warra n tauthorized search of the premises. 55

Furthermore, when we apply the full Summers balancing test, we

confirm that the extended det ention of plaintiffs was indeed

unlawful. The intrusiveness of the detention was much greater than

in Summers

. Although Harris had a valid warrant to search the

Club, he went well beyond the limits of that warrant, conducting

highly intrusive strip searches of plaintiffs, about whomhe had

neither individualized reasonable suspicion nor probable cause.

After failing to uncover contraband or weapons on the person of

plaintiffs, Harris neve rtheless detained them a nd kept them

h andcuffed for the remainder of the three-hour search. Because

this was a public estab lishment and not a private residence,

moreover, plaintiffs had no reason to remain at the Club during the

search. 56 The illegal strip searches of plaintiffs and all other26

occupants added to the prolongation of the detention and

demonstrated Harris’s intent to gain more information than he was

authorized to retrieve. Last, the public stigma associated with the

detention was greater than in either S ummers or Heitschmi dt

,

because the detention lasted three hours in a public venue, not in

the obscurity of a residence.

On the opposite side of the scale are the law enforcement

interests and articulable facts supporting plaintiffs’ detention.

The proffered l aw enforcement interests in preventing flight and

maintaining safety here are questionable. Once the premises had

been secured and the officers had strip-searched and warrantchecked the plaintiffs, uncovering no evidence to create probable

cause, there was no need to prevent their flight and no

i dentifiable fear that, if released, plaintiffs would return to

inflict harm.

In addition, there are no articulable facts that provide valid

support for the extended detention of plaintiffs. Although Harris

had a warrant to search the Club, and on that basis, had general,

non-specific probable cause that persons known or unknown might be

committing crimes in the Club, the warrant only permitted the

search of the premises and the five individuals named in the

affidavit. Because the warrant named specific individuals and d id

not explicitly allow the more general search requested in Harris’s

affidavit

, the judicially-prescribed justification for the extended

detention of plaintiffs was far less substantial than in Summers

.27

Once the police had patted down, strip searched, and conducted a

warrants check, moreover, the police surely had no articulable and

individuali zed suspicion to justify further detention of the

plaintiffs.

Neither Brumley’s a rrest for disorderly conduct during the

period of the detention nor Brown’s arrest for interfering with the

duties of a public servant alters our conclusion that the extended

detention was unlawful. Brumley’s arrest for disorderly conduct

occurred after the search and after a period, subsequent to the

search, during which Brumley was handcuffed and forced to lie facedown on the ground outside the Club. We cannot conclude that his

further detention was permissible on the basis of the arrest,

because such a conclu sion would effectively allow the police to

create a potential threat to their safety through unconstitutional,

provocative conduct, and then rely on that manufactured threat to

perpetrate additional constitutional violations. Furthermore,

although Brown had shown a willingness to ignore police orders, he

had only sought admittance because of his family relationship to

the C lub’s owner. Thus, his arrest had nothing to do with the

search of the Club. He was not present at the Club when the raid

began, and the officer who arrested him testified that he had no

probable cause to believe that Brown was carrying a weapon. In

fact, his “arrest” lasted only for the duration of the search and

he was never booked or incarcerated.

Harris and the County nevertheless persist in urging that the57 The ultimate standard of reasonableness in the Fourth

Amendment and the fact-specific character of these cases dissuade

us from attempting to decide exactly what would have been a

permissible period of detention had the police conducted a lawful

search. In other contexts, we have held that when an officer

pats down a person whom he reasonably suspects is carrying a

weapon, and finds nothing, the officer may not further detain the

individual, because his suspicion “has evaporated and no longer

justifies further detention.” United States v. Shabazz , 993 F.2d

431, 436 (5th Cir. 1993). Similarly, it is well-established in

this Circuit that a detention should end as soon as the

underlying justification for the stop is served, for instance by

running a computer check that comes back negative; any further

detention becomes an unreasonable seizure because it is

unsupported by probable cause. United States v. Dortch , 199

F.3d 193, 199 (5th Cir. 1999).

28 detention of plaintiffs was necessary for an orderly completion of

t he search of the Club, and was reasonable both because of the

number of persons present at the Club and because of Harris’s fear

that those released would return armed. We are aware of the

circumstances that the police believed they were actually facing

when they executed their search warrant. The history of violence

and drug use certainly gave Harris reason to worry about the safety

o f his officers. The nature of the search and the number of

persons present also made the search of the Club factually distinct

from the average search of small groups or a single person in a

less volatile venue. Given the number of persons inside the Club,

detention of plaintiffs for as long as reasonably required for the

police to search the premises and to search and arrest the

individuals named in the warrant may have been permissible. 57 What

occurred, however, was a detention that last ed much longer than

necessary specifically because of the pervasive and protracted58 Summers , 452 U.S. at 705, n.21.

29 illegal strip searching that occurred. We cannot credit an

argument that such a lengthy detention, including th e time that

elapsed both before and after plaintiffs were strip searched, was

justifiable simply because the police elected to strip search

scores of other Club customers.

In sum, the exception carved out in Summers

, and shaped in

Heitschmidt

, is inapplicable here. Because the law enforcement

interest proffered does not justify such lengthy, public intrusions

on plaintiffs, we hold the prolonged detention of plaintiffs to be

unlawful.

2. Whether the law was “clearly established”

Although we hold today that the prolonged detention of

plaintiffs was unlawf ul, we nonetheless agree with the district

court that qualified immunity shields Harris from liability. Even

though Summers does not sanction Harris’s conduct, neither did it

establish a clear rule w arning defendants that such conduct was

illegal. The Court only hinted that “[a]lthough special

circumstances, or possibly a prolonged detention, might lead to a

different conclusion in an unusual case, we are persuaded that this

routine detention of residents of a house while it was being

searched for contraband pursuant to a valid warrant is not such a

case.” 5 8 Furthermore, H eitschmidt

, which clarifies our vie w s

regarding these types of de tentions, was not decided until after30

Harris’s search of the Club.

In the instant case, there is no doubt that the illegal strip

search of plaintiffs corrupted the legality of their detention by

extending it unnecessarily. Still, the objective unreasonableness

of Harris’s conduct in ordering a strip search of plaintiffs does

not automatically make his conduct in unduly detaining plaintiffs

for the duration of the search objectively unreasonable in and of

itself. Whereas Y barra established the clear rule that any full

search of plaintiffs required individualized probable cause,

Summers allows a s eizure without probable cause when the proper

balance is struck between law enforcement and personal security

interests. Thus, S ummers left the state of the law more ambiguous

as to what constituted an unlawful detention in a premises search

like the one here. In other words, under the law as it existed in

April, 1995, Harris had fair warning that his gen eralized law

enforceme nt safety interests did not justify strip searching

plaintiffs; the law was less clear about whether these same

interests were sufficient to permit detention of plaintiffs until

the completion of the otherwise unlawful search. We agree with the

district court’s grant of qualified immunity on plaintiffs’

unlawful detention claims.

F. Invasion of Privacy

The district court rejected plaintiffs’ invasion of privacy

claim on summary judgment because the then-current pleading before59 See Moore v. Cornwell , 168 F.3d 234, 236-37 (5th Cir.

1999)(holding that a strip search of a male prisoner by a female

officer in the absence of emergency circumstances constitutes a

claim that “could entitle [plaintiff] to relief for a Fourth

Amendment violation.”).

31 the court, the original complaint, did not state this claim. The

magistrate ju dge had —— in his words —— “unfiled” plaintiffs’

amended complaint (which included the privacy claim) for failure to

follow procedural rules, and then rejected plaintiffs’ second

attempt to amend the complaint. Plaintiffs never objected to or

sought review of these rulings. On appeal, plaintiffs still do not

contest the mag istrate judge’s decision to reject their amended

complaints, and instead argue that the Fourth Amendment claim

pleaded in the original complaint includes the claim against

invasion of privacy.

To the extent that plaintiffs’ claim of invasio n of privacy

rests on the Fourth Amendment, it fails because it is redundant to

their illegal strip search cla im. Even assuming that the

plaintiffs could establish that strip searches were not conducted

in the privacy normally required (now a contested issue of fact),

this transgression is in separable from the illegal strip search

violation itself. By finding the strip searches themselves

unlawful, there is no need to address a particular aspect of

searc hes that is potentially unlawful as well. 5 9 If, perhaps,

defendants were within their constitutional autho rity to strip

search plaintiffs to begin with, but impermissibly conducted the60 They cite Johnson v. Morel , which describes plaintiff’s

claim of oral racial harassment as an equal protection claim

under the Fourteenth Amendment. 876 F.2d 477, 478 (5th Cir.

1989).

32 strip search in a public area , then plaintiffs may have had a

privacy-oriented Fourth Amendment claim

. But those are not the

facts before us today. To the extent plaintiffs purport to make a

separate invasion of privacy claim, it was not included in their

original complaint, and they do not appeal the rejection of their

attempts to amend that complaint. Thus, it is unnecessary for us

to address such a claim.

G. Use of Racial Epithets

The district court held that plaintiffs’ oral harassment claim

was insufficient because plaintiffs failed to make an equal

protection claim or even refer to the Fourteenth Amendment in their

pleadings. The court also concluded that even if plaintiffs had

adequately pleaded an equal protection claim, the law was not

clearly established t hat, in the instant context, racial slurs

alone are actionable under the Fourteenth Amendment. On appeal,

plaintiffs argue that the racial slurs allegedly used by the police

violate the Fourth Amendment, because the Fourth Amendment embraces

all elements of a search and seizure. To support their assertion

that oral racial harassment violates the Fourth Amendment, however,

plaintiffs rely on precedent prohibiting racial ins ults and

discrimination under the Fourteenth Amendment. 60 Plaintiffs attempt61 See Williams v. Bramer , 180 F.3d 699, 706 (5th Cir. 1999)

(holding that “an officer’s use of a racial epithet, without

harassment or some other conduct that deprives the victim of

established rights, does not amount to an equal protection

violation”).

33 to explain, with little justification, that although the

prohibition against oral harassment based on race occurred in the

context of the Equal Protection clause, the same prohibition is

part of the Fourth Amendment and thus applies to police conduct.

We agree with the district court that use of racial epithets

deserves our strongest condemnation. None would dispute that this

form of harassment is highly reprehensible, even more so if it

occurred in conjunction with the already invasive and humiliating

strip searches.

Nevertheless, as appalling as such behavior would be, here it

would only aggravate a seizure that we have already concluded was

unlawful. Thus, whether the use of racial epithets alone amounts

to a separate and independent constitutional violation under the

Fourth Amendment is a question we need not reach because it is not

before us today. We h ave impliedly held that racial epithets that

accompany harassment or a violation of established rights may

amount to a separate equal protection violation. 61 In this case,

however, for whatever reason, plaintiffs chose not to make an equal

protection claim.

H. Municipal Liability

At the summary judgment stage, the district court c oncluded62 Colle v. Brazos County , 981 F.2d 237, 244 (5th Cir. 1993)

( citing Monell v. New York City Dept. of Soc. Serv. , 436 U.S. 658

(1978) and Oklahoma City v. Tuttle , 471 U.S. 808, 817-18 (1985)).

63 735 F.2d 838, 841 (5th Cir. 1984) (en banc).

34 that Harris’s strip search and detention of plaintiffs was the

official policy, practice and custom of the County because Harris

was the final policymaker in law enforcement. After trial, the

court also concluded that (1) plaintiffs suffered an injury as a

result of this policy, and (2) the policy was adopted with “callous

and deliberate indifference to the constitutional rights of those

affected.” On appeal, plaintiffs maintain that, as Harris was the

official policymaker for the County, his role makes the County

liable for the strip search and detention that Harris initiated and

pursued with respect to plaintiffs.

The law is well-established that a municipality such as the

County can be held liable for its policies and customs that

engender constitution al deprivation, but that it cannot be held

liable for the actions of its non-policy-making employees under a

theory of respondeat superior

. 62 In W ebster v. City of Houston

, we

concluded that an official policy consists of, among other things,

“[a] policy statement, ordinance, regulation, or decision that is

officially adopted and promulgated by the municipality’s lawmaking

officers or by an official to whom the lawmakers have delegated

policy- making authority.” 6 3 We have also held that sheriffs in64 Colle , 981 F.2d at 244 ( citing Turner v. Upton County

,

915 F.2d 133, 136 (5th Cir. 1990)).

65 See Bryan County v. Brown , 520 U.S. 397, 404 (1997).

66 See id. 404-05 (1997) (“the conclusion that the action

taken or directed by the municipality or its authorized

decisionmaker itself violates federal law will also determine

that the municipal action was the moving force behind the injury

of which the plaintiff complains”). The district court did not

need to determine whether Harris’s conduct also amounted to

deliberate indifference, because that element must be shown only

when there is a claim that the municipality’s facially lawful

action caused an employee to inflict the injury, not when the

municipality (through its policymaker) has directly caused the

injury, as has occurred here. Thus, it is unnecessary to examine

the deliberate indifference issue to establish liability in this

instance. See id. at 406-07 (reiterating that a “plaintiff

seeking to establish municipal liability on the theory that a

facially lawful municipal action has led an employee to violate a

plaintiff’s rights must demonstrate that the municipal action was

taken with ‘deliberate indifference’ as to its known or obvious

35 Texas are final policymakers in the area of law enforcement. 6 4

Therefore, it is clear that the County can be held liable for

Harris’s intentional conduct, to the extent i t constitutes the

“moving force” behind the alleged injury. 65

Harris testified that he is the final policymaker for law

enforceme nt matters in the County. Harris and others have

testified as well that both the strip search and lengthy detention

of the plaintiffs were conducted according to the Sheriff

Department’s unwritten policy for executing “hazardous” warrants.

As a result, Harris’s actions as policymaker were undenia bly the

moving force behind, and the direct cause of, the violation of

plaintiffs’ constitutional rights, thereby establishing the

County’s municipal liabili ty. 66 Finally, we note that the Countyconsequences”) (citation omitted).

36 has not e xpressly contested its municipal liability, but rather

argued only that it is not liable for actions that do not amount to

constitutional violations, a truism that none contests.

I. Damages

The district court rejected plaintiffs’ request for

compensatory damages because it found that plaintiffs had failed to

prove a specific and discernable injury to their respective

emotional states. Nevertheless, the court awarded plaintiffs

nominal damages of $100 per plaintiff, and punitive damages of

$15,000 per plaintiff against Harris in his individual capacity.

Finding that Harris’s conduct “simply cannot be tolerated in a

civilized society,” the court concluded that punitive damages were

an appropriate punishment.

On appeal, Harris argues that: (1) nominal damages should have

been one dollar; (2) punitive damages were inappropriate because

Harris lacked evil intent or reckless and callous indifference when

carrying out the strip search and detention; and (3) even if

punitive damages were permissible, the district court’s award was

excessive. Plaintiffs do not contest the rejection of their

compensatory damages claim.

1. Nominal Damages

The law is well-established in this Cir cuit that plaintiffs

may recover nominal damages when their constitutional rights have67 Louisiana Acorn Fair Housing v. LeBlanc , 211 F.3d 298,

302 (5th Cir. 2000) ( citing Ryland v. Shapiro , 708 F.2d 967, 976

(5th Cir. 1983)).

68 Black’s Law Dictionary, 396 (7th ed. 1999).

69 435 U.S. 247, 266-67 (1978).

70 In the commercial context, we have awarded $2000 in

nominal damages and cited as guidance state courts that have

awarded between $500 and $5000 in nominal damages for commercial

disputes. See Taquino v. Teledyne Monarch Rubber , 893 F.2d

1488, 1491 (5th Cir. 1990).

37 been violated but they are unable to prove actual injury. 6 7 The

district court relied on the definition of nominal d amages from

Black’s Law Dictionary which equates such damages with a “trifling

sum.” 68 The court stated that it considered $100 to be nominal

“[g]iven the value of today’s dollar.”

In Cary v. Piphus

, the Supreme Court recognized the ability of

courts to award “a nominal sum of money” when a violation of one’s

r ights does not result in actual injury, and awarded nominal

damages of one dollar. 69 The Court did not indicate, however, that

in 1978 one dollar was the outer limit of such damages. Although

$100 is obviously greater than one dollar, this amount is certainly

not out of li ne with nominal damages that we have awarded in the

commercial state law conte xt. 7 0 We agree with the district court

(and regret), moreover, that toda y $100 is an insignificant sum,

and thus see no need to disturb that court’s conclusion. Further,

the court’s assessment of the situation is not clearly erroneous,

much less an abuse of discretion.71 LeBlanc , 211 F.3d at 303.

72 Sockwell v. Phelps , 20 F.3d 187, 192 (5th Cir. 1994)

( citing Smith v. Wade , 461 U.S. 30, 56 (1983)) (emphasis added).

73 Kolstad v. Am. Dental Ass’n , 527 U.S. 526, 536 (1999)

( citing Smith , 461 U.S. at 37, n.6, 41).

38 2. Punitive Damages

Just as nominal damages are allowed without proof of injury,

“a punitive award may stand in the absence of actual damages where

there has been a constitutional violation.” 71 But punitive damages

may be awarded only when the defendant’s conduct “is ‘motivated by

evil intent’ or demonstrates ‘reckless or callous indifference’ to

a person’s constitutional rights.” 72 The latter standard requires

“recklessness in its subjective form,” i.e. “a ‘subjective

consciousness’ of a risk of injury or illegality and a ‘criminal

indifference to civil obligations.’” 73 The district court held that

Harris demonstrated a reckless indifference; Harris insists that he

acted in good faith.

The record provides mor e than enough evidence from which to

conclude that Harris acted with r eckless indifference toward the

constitutional rights of plaintiffs. Although Harris told the

court that he believed that he had probable cause to suspect that

ever yone in the Club had some connection to drugs, i t was wellestablished at the time of this search that Har ris needed

individualized probable cause to search each of the plaintiffs and

the ninety-plus other individuals at the Club who were not named in74 See United States v. Harvey , 897 F.2d 1300, 1304 (5th

Cir. 1990)(recognizing and applying Ybarra , but distinguishing

the facts of the case from its holding).

39 the warrant. Not only did Harris lack particularized probable

cause when entering the Club, none materialized vis-à-vis the

plaintiffs after a patdown. Without any probable cause or

articulable reasonable suspicion after a patdown, Harris simply had

no legal authority to conduct a strip search. Moreover, the

magistrate who is sued the search warrant gave Harris only enough

authority to search the premises and the five individuals named in

the warrant, not all others in the Cl ub as requested in Harris’s

affidavit. We conclude that ignoring the limited scope of search

authorized by the warrant, and disregarding the Fourth Am endment

rights of plaintiffs as long-established by the Supreme Court and

recognized by this Court, 7 4 constitutes reckless indifference to

such rights. In addition, in light of the testimony detailing the

atmosphere of questionable privac y during the strip searches and

the use of racial slurs, we cannot fault the district court’s

ruling that Harris was not acting in legal good faith. Even though

Harris is no longer Sheriff, punitive damages not only punish him

for h is conduct; they serve as instructive warnings to his

successors.

H arris nevertheless contends that, even if punitive damag e s

are appropriate, the damages awarded by the distri ct court were

excessive. To determine whether punitive damages are excessive,75 BMW of N. Am., Inc. v. Gore , 517 U.S. 559, 575, 580, 583

(1996).

76 Id. at 582-83 (citation and internal quotation marked

omitted). The Supreme Court’s recent revisit of the Gore factors

in State Farm Mutual Automobile Insurance Company v. Campbell

does not alter our conclusion here. __ U.S. __, 123 S.Ct. 1513

(2003). Campbell reviewed jury-awarded compensatory damages of

$1 million and punitive damages of $145 million; and although the

Court stated that extreme ratios should be presumptively invalid,

it discussed the constitutionality of punitive damages vis-a-vis

compensatory damages awarded by juries. See id. at 1521, 1524.

As the instant case concerns the ratio between punitive and

nominal damages, Campbell ’s discussion of the proper ratio

40 the Supreme Court requires consideration of three factors (1) the

degree of reprehensibilit y of the defendant’s conduct, which

receives the heavie st weight; (2) the disparity between the harm

suffered (compensatory damages) and the punitive damages award; and

(3) the possible criminal and civil sanctio ns for comparable

misconduct. 75

As outlined above, the degree of reprehensibility of Harris’s

conduct is high because he perpetrated extremely invasive searches

on innocent individuals without specific probable cause or

reasonable suspicion, in contravention of the warrant its elf and

clear precedent. Second, we agree with the district court that any

punitive damages-to- compensatory damages “ratio analysis” cannot be

applied effectively in cases where only nominal damages have been

awarded, such as the § 1983 suit before us. The Supreme Court has

counseled that this factor does not impose a mathematical formula

for constitutional proportionality, but instead only embodies “a

general concern of reasonableness.” 76 Because actions seekingbetween punitive and compensatory damages is inapposite to our

consideration today.

77 The third factor, what comparable criminal and civil

sanctions would have been for Harris, is not easily applicable to

this type of constitutional violation, because there is no

readily identifiable law imposing civil or criminal penalties on

law enforcement officers for such violations.

78 Our research has revealed relatively few other cases

addressing the amount of punitive damages awarded in the context

of civil rights actions. The Second Circuit concluded that

$10,000 in punitive damages when only nominal damages were

awarded “approaches the limits of what we would deem consistent

with constitutional constraints.” Provost v. City of Newburgh

, 262 F.3d 146, 164 (2nd Cir. 2001). In a case concerning the

illegal strip search of a prisoner, the Seventh Circuit reduced a

jury-decided punitive damages award of $15,000 to $6,000.

McKinley v. Trattles , 732 F.2d 1320, 1327-28 (7th Cir. 1984).

For the illegal strip search of high school students, the New

Mexico Supreme Court approved punitive damages awards of $62,500

to one plaintiff and $37,500 to the other plaintiff, but also

awarded compensatory damages of $50,000 to each. Kennedy v.

Dexter Consol. Sch. , 10 P.3d 115, 118, 125-126 (N.M. 2000).

Although $15,000 may be slightly higher in this case than in

cases decided by other circuits, two factors convince us that the

amount is nonetheless reasonable: (1) our review of the evidence

before the district court regarding the type of conduct that

occurred, and (2) our necessarily unscientific balancing of the

factors laid out in Gore

.

41 vindication of constitutional rights are more likely to result only

in nominal damages, strict proportionality would defeat the ability

to award punitive damages at all. 77 Based on our review of the case

law and our consideration of the evidence weighed by the district

court, we conclude that $15,000 per plaintiff is not unreasonable

in light of the violations that took place. 78

J. Declaratory Relief

Finally, Harris and the County contend that they did not

violate Article I, section 9 of the Texas Constitution, which79 State v. Wagner , 821 S.W.2d 288, 291 (Tex. Crim. App.

1991).

42 mirrors the language of the Fourth Amendment. Both parties

acknowledge that this constitutional prov ision is interpreted as

congruent with Fourth Amendment jurisprudence. Indeed, the Texas

Court of Appeals has held that “our article I, section 9 provides

at least as much protection as the Fourth Amendment of the United

States Constitution.” 79 Thus, based on our earlier conclusions that

Harris and the County violated the Fourth Amendment, we also

conclude that the declaratory relief granted to plaintiffs is

appropriate.

III. CONCLUSION

For the foregoing reasons, the judgments of the district court

are, in all respects,

AFFIRMED.