Wednesday, September 20, 2006

Eighth Circuit Finds it Lacks Jurisdiction to Consider Officials’ Qualified Immunity Appeal re Class after Ruling in Favor of Officials Against Class

Per Smook v. Minnehaha County, 457 F.3d 806 (8th Cir. Aug. 9, 2006):

[Plaintiff Smook brought claims against a county juvenile detention center challenging reasonableness of strip-search policy, on behalf of herself and others similarly situated. The 8th Circuit decided that the policy did not violate the Fourth Amendment as to Smook.] In addition to granting partial summary judgment in favor of Smook, the district court's order also granted partial summary judgment for unnamed class members who, as the class was defined by the court, were strip searched at the JDC [Juvenile Detention Center] from June 1, 1999, through September 14, 1999. [Defendants] Banbury and Cheever contend that they are also entitled to qualified immunity from suits for damages by the unnamed class members. To review that contention, it appears that we would be required by the Supreme Court's current direction to resolve first whether the searches of the unnamed class members violated the Fourth Amendment, and then, if so, whether the defendants are nonetheless entitled to qualified immunity. See Brosseau v. Haugen, 543 U.S. 194, 197-98 & n. 3 (2004) (per curiam)...

The requirement to resolve the reasonableness of these searches of unnamed class members places us in a quandary. The specific facts underlying the claims are not yet developed, and the reasonableness of a particular search is often highly contextual. We do not know from this record which, if any, of the unnamed class members were searched after removing all of their clothing, what might have led staff members at the JDC to conduct such searches. . .Plaintiffs contend that "[t]he question of whether individual class members were required to be completely nude or nearly nude will be determined among the factual matters during the damages phase of the case," yet the entitlement to qualified immunity is an immunity from suit, not merely a defense to liability, Mitchell v. Forsyth, 472 U.S. 511 (1985), and the individual defendants are thus entitled to a decision before the litigation proceeds to that phase.

The posture of the appeal is complicated further by our decision that the named class representative, Smook, has no claim for damages against the defendants. That conclusion typically would disqualify her as a class representative, see, e.g., E. Tex. Motor Freight Sys. Inc. v. Rodriguez, 431 U.S. 395 (1977); Burris v. First Fin. Corp., 928 F.2d 797, 806 (8th Cir.1991), but given that a class already has been certified, "the class of unnamed persons described in the certification acquire a legal status separate from the interest asserted by [Smook]." Sosna v. Iowa, 419 U.S. 393, 398 (1975). This separate legal status means that the dismissal of Smook's claim does not inexorably require dismissal of the class action, id. at 399-401; Rodriguez, 431 U.S. at 406 n. 12; but cf. Great Rivers Coop. of Southeastern Iowa v. Farmland Indus., Inc., 120 F.3d 893, 899 (8th Cir.1997), but it also does not mandate that we decide constitutional issues in the abstract or in a context that may be hypothetical. See Kremens v. Bartley, 431 U.S. 119, 134 (1977) ("While there are 'live' disputes between unnamed members of the class certified by the District Court, on the one hand, and [defendants], on the other, these disputes are so unfocused as to make informed resolution of them almost impossible.").

Under these unusual circumstances, we decline to pass on the merits of the constitutional claims of the unnamed class members that must be resolved as a first step in determining whether Banbury and Cheever are entitled to qualified immunity from suit. Because we decline to resolve this aspect of the appeal by the individual defendants, we dismiss for lack of jurisdiction that portion of the county's appeal regarding liability for damages to the unnamed class members. On remand, the district court may consider, after pausing to "stop, look, and listen," id. at 135, whether the class should be redefined or decertified, cf. Gen. Tel. Co. v. Falcon, 457 U.S. 147, 160 (1982), and whether there is an adequate class representative to replace Smook, if appropriate. Cf. Howe v. Varity Corp., 896 F.2d 1107, 1111 (8th Cir.1990). If the court concludes that a class should continue to be certified and there is an adequate class representative to continue the action, then the defendants, of course, may renew motions for summary judgment if they wish. We expect that the district court would consider any such motions in light of our conclusions regarding the individual defendants' entitlement to qualified immunity from suit on Smook's claim.


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