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TIMBERLAKE v. BENTON

January 29, 1992

BARBARA TIMBERLAKE, a minor, by mother and father, MAGGIE and THOMAS TIMBERLAKE, as next friends,
v.
DAVID BENTON and JOAN RICHARDSON GREGORY, Individually, and in their official capacities as Police Officers for the City of Springfield, THE CITY OF SPRINGFIELD, STANLEY HENDERSON, Individually, and in his official capacity as an Officer of the Robertson County Sheriff's Department and JACK UFFELMAN, Individually, and in his official capacity as Director of the Drug Task Force for the 19th Judicial District



The opinion of the court was delivered by: JOHN T. NIXON

 Plaintiff, a 17 year old female, brought this action under 42 U.S.C. § 1983 alleging a violation of her constitutional rights when the vehicle in which she was riding was stopped by officers of the 19th Judicial District Drug Task Force and she was strip searched in the back seat of a patrol car at the scene. Pending before this Court are motions for summary judgment filed by the Defendants.

 Defendant Jack Uffelman, sued in his official capacity as the director of the 19th Judicial District Drug Task Force, seeks summary judgment on the ground that the Task Force is not a "person" under 42 U.S.C. § 1983 and therefore is not amenable to suit in this action. Officers David Benton, Joan Gregory, and Jack Uffelman in their individual capacities seek summary judgment on the basis of qualified immunity. The City of Springfield seeks summary judgment on the grounds that no policy or custom of the city permitted illegal searches, that the city provided adequate training to its officers, and that punitive damages may not be assessed against the city. Plaintiff has also asserted pendent state law claims which Defendants seek to have dismissed as within the exclusive jurisdiction of the state courts.

 BACKGROUND

 This lawsuit arises out of an incident occurring in the early morning hours of June 3, 1989. At that time, Polly Stewart and her younger sister Barbara Timberlake, then 17 years old, were driving from Nashville to Springfield, Tennessee in a pinkish-red Nissan truck when they were stopped by Officer Benton of the 19th Judicial District Drug Task Force. The truck in which they were driving was thoroughly searched by several officers while a female officer, Joan Gregory, conducted a strip search of Ms. Stewart and Ms. Timberlake in the back seat of a patrol car alongside the highway. No drugs were found, although Timberlake turned over a pistol. Stewart was issued a citation and the two were permitted to leave.

 The search and seizure came about as a result of Officer Benton's suspicion that the two were transporting illegal drugs. One or two days prior to the incident, Benton had received information from a confidential informant that a Mr. Willie Gene Ogburn was using the same pinkish-red Nissan truck to transport drugs between Springfield and Nashville in the early hours of the morning and on Sundays. The informant also indicated that Mr. Ogburn was short on cocaine and that he would soon be making a run to Nashville to pick up a new supply. This was the extent of the informant's information. No further details were provided and no information implicated Stewart or Timberlake in the trafficking of drugs. From Task Force undercover operations, Mr. Ogburn was known to be dealing in drugs and Officer Benton considered the informant to be reliable because information he had provided in the past had proven to be accurate. It was known to Officer Benton that Ms. Stewart was Mr. Ogburn's girlfriend.

 At approximately 2:00 a.m. on June 3, 1989, Officer Benton observed the suspected truck as it left Springfield and headed toward Nashville. Because of the truck's tinted glass, he was unable to identify the occupants of the vehicle. The truck exited the interstate and headed generally toward the Settle Court area of Nashville, an area known for its drug problem. Benton broke off his surveillance of the truck and returned to the Springfield area to await the truck's return. While he had the truck under observation, he did not see it stop nor did he see anyone leave or approach the vehicle.

 Sometime later, Benton observed the truck returning to Springfield and he began to follow it. Shortly thereafter, Officer Benton turned on his blue lights and stopped the truck. Benton approached the vehicle with his gun drawn. After ascertaining Stewart's identity and informing her of his suspicions, he ordered the women out of the truck. Stewart explained that they had been visiting friends in Nashville and denied that they were transporting drugs. She refused to consent to a search and Benton was asked if he had a search warrant. He replied that he did not need a warrant because he had reason to believe the truck was being used to transport drugs. Benton reholstered his gun and radioed for assistance. A short time later, Officer Gregory and others arrived on the scene and the search commenced.

 Both Stewart and Timberlake were wearing T-shirts and "short shorts" which apparently left little room for concealing dangerous weapons. Nevertheless, Stewart had brought a pistol with her in the truck that evening and when Benton stopped them, Timberlake attempted to hide the gun in her shorts. Benton claims he observed Timberlake walking stiff-legged with a suspicious bulge in her shorts. Surprisingly, however, neither Stewart nor Timberlake were frisked at any time, nor was Timberlake ever asked about the bulge. Oddly enough, despite his alleged suspicions about Timberlake, Benton ordered Stewart searched first.

 In accordance with instructions given by Gregory, Stewart sat in the back seat of the patrol car and removed her clothes while Gregory stood in the open doorway of the car with a flashlight in her hand and the dome light of the car on. After removing all of her clothes, Stewart was ordered onto her hands and knees in the back seat with her posterior facing the open doorway and the highway. With rubber gloves, Gregory inspected Stewart's anal and genital areas by spreading Stewart's buttocks. Gregory went through the clothing and shoes as well, but no drugs or weapons were found. Benton then sent Timberlake to be searched. Before she removed her clothes, she handed a pistol to Gregory and said, "you're going to find it anyway." The strip search was then completed in the same manner as before. As with Stewart, no drugs or other weapons were found. During the search, cars would pass within six to ten feet from the open door, and it is alleged by Plaintiff that others at the scene could see into the car while the search was conducted. According to Plaintiff, she was detained for nearly three hours. At no time were the women placed under arrest or informed of their rights. Stewart claims that Officer Benton threatened her with future strip searches unless she provided him with information about Ogburn.

 DISCUSSION

 The Court notes at the outset that pending are Defendants' motions for summary judgment. The Court is here asked to determine if Defendants are entitled to judgment as a matter of law. The moving party has the burden of showing clearly and convincingly the absence of any genuine issues of material fact. Sims v. Memphis Processors, Inc., 926 F.2d 524, 526 (6th Cir. 1991). "Summary judgment will not lie if the dispute . . . is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). It is likewise true that "in ruling on a motion for summary judgment, the court must construe the evidence in its most favorable light in favor of the party opposing the motion and against the movant. Further, the papers supporting the movant are closely scrutinized, whereas the opponent's are indulgently treated." Bohn Aluminum & Brass Corp. v. Storm King Corp., 303 F.2d 425, 427 (6th Cir. 1962). See also Duchon v. Cajon Company, 791 F.2d 43, 46 (6th Cir. 1986). With this standard in mind, the legality of the events taking place on June 3, 1989, as described by the parties, will be addressed.

 I. Liability of Defendant Uffelman in his Official Capacity.

 Plaintiff has named as a defendant, Jack Uffelman, in his official capacity as director of the 19th Judicial District Drug Task Force. Suits brought against persons in their official capacity are taken to be suits against the entity for which the named official is an agent. Hafer v. Melo, U.S. , , 112 S. Ct. 358, 362, 116 L. Ed. 2d 301 (1991); Monell v. Department of Social Services, 436 U.S. 658, 690 n.55, 98 S. Ct. 2018, 2035, 56 L. Ed. 2d 611 n.55 (1978). Defendant Uffelman argues that he is not amenable to suit in his official capacity since the Task Force is not a person subject to suit under 42 U.S.C. § 1983.

 The Supreme Court in Monell held that municipalities and other local government units are included among those persons to whom § 1983 applies. 436 U.S. at 690, 98 S. Ct. at 2035. However, the precise scope of the term "local government unit" is problematic. Is a drug task force, comprised of police officers from several counties and cities, which has a board of directors, its own budget and source of funding, its own policies, administration, and legal counsel, a "person" for purposes of § 1983? Plaintiff argues that it is a distinct entity and therefore open to suit. Defendant asserts that the Task Force is merely an agreement among several adjoining localities to pool certain law enforcement resources to stem the inflow of illegal drugs.

 Courts which have addressed the meaning of "person," "entity," and "government unit" in § 1983 cases have not been uniform in their approach. Some courts have held that police departments are not entities subject to suit. See, e.g., Eddy v. City of Miami, 715 F. Supp. 1553, 1556 (S.D. Fla. 1989); Baldi v. City of Philadelphia, 609 F. Supp. 162, 168 (E.D. Pa. 1985); Reese v. Chicago Police Department, 602 F. Supp. 441, 443 (N.D. Ill. 1984); Bradford v. Gardner, 578 F. Supp. 382, 383 (E.D. Tenn 1984); Williams v. Baxter, 536 F. Supp. 13, 16 (E.D. Tenn. 1981). Others have found that police departments were "persons" under § 1983 and therefore could be sued. See, e.g., Pillette v. Detroit Police Department, 661 F. Supp. 1145, 1150 (E.D. Mich. 1987); Gaborik v. Rosema, 599 F. Supp. 1476, 1481 (W.D. Mich. 1984); Kennibrew v. Russell, 578 F. Supp. 164, 166-67 (E.D. Tenn. 1983). Those courts finding police departments not amenable to suit typically base their decision on the principle that a police department is not separate from the city or county itself and as such is not a legal entity. The police department, in effect, is likened to an arm of the city and thus suit must be brought against the city itself.

 The Task Force resembles a police department in that it is comprised of police officers and functions to enforce the law. However, it is distinguishable from the police departments discussed in the above cases in that the Task Force is not a department of any one city. It encompasses several counties and cities. It has a board of directors independent of any one city, and a unique source of funding. The authority for creation of the Task Force comes from two provisions of Tennessee law. Under T.C.A. § 12-9-104 (1987), as extended by T.C.A. § 6-54-307 (Supp. 1991), any two or more public agencies or municipalities may enter into agreements for joint cooperation. In so doing, they may, but need not, create a separate legal entity. Id. at § 12-9-104(c)(2). Thus, it must be determined whether the parties to this mutual aid agreement created a separate legal entity in the 19th Judicial District Drug Task Force.

 In the agreement, there is no explicit language indicating whether the "Drug Task Force Unit" is a legal entity formed to carry out the compact. Various provisions of the agreement tend to indicate that no distinct entity was created. For example, section 2(g) provides that each officer assigned to the Task Force by the participating locality shall remain an employee of the city or county assigning him and that his salary shall be paid by that city or county. Section 10 retires each party to provide its own liability coverage, and section 12 indicates that if a party wishes to terminate its participation in the Task Force, all equipment furnished by it to the Task Force will be returned. *fn1" The fact that section 1 describes a "Board of Directors" does not in itself indicate the creation of a separate legal entity. *fn2" Section 8 reads as follows:

 The parties agree that they shall remain liable and responsible for the actions of their employees while assigned to the Task Force. Furthermore, the parties agree that, to the extent permitted by law, each party shall defend, indemnify, and save harmless the other parties, their officers, employees and agents from any and all claims, losses, damages, cost and expense, including attorney fees, arising or alleged to arise from personal injuries, death, property damage, civil rights violations, false arrest and other like claims resulting from or arising out of the actions of the parties' employees in connection with Task Force activities.

 This section could be read to suggest the possibility of lawsuits brought against the Task Force itself, but could merely envision a lawsuit brought jointly against all of the separate cities and counties participating in the agreement.

 Ultimately, the Court believes that the creation of a legal entity capable of being sued should not be left to chance. The law permitting cities and counties to enter into mutual aid agreements explicitly permits such agreements to function without the creation of a separate legal entity. Therefore, in the absence of clear indications that the Task Force is an entity, the Court will not imply its existence. The 19th Judicial District Drug Task Force is, therefore, a joint undertaking of several counties and cities and not a "person" amenable to suit under § 1983.

 However, this does not end the inquiry. Although the Task Force is not an distinct entity open to suit, a lawsuit naming one of its officials in his official capacity is tantamount to a suit against the entities making up the Task Force. Those who would argue that an official capacity suit cannot be brought against a police official because the police department is not a distinct entity amenable to suit overlook the fact that the police official may be an official of the city or county which employs him. Thus, a suit brought against a police official need not be characterized as against the police department, and then dismissed for failure to name a "person" subject to suit. Instead, it may be an actionable suit against the city or county for which the police official acts. See, e.g., Monell v. Department of Social Services, 436 U.S. 658, 690 & n.55, 98 S. Ct. 2018, 2035-36, 56 L. Ed. 2d 611 & n.55 (1978) (suit brought nominally against official of city's department of social services is actionable suit against city itself); Brandon v. Holt, 469 U.S. 464, 471-72, 105 S. Ct. 873, 877-78, 83 L. Ed. 2d 878 (1985) (suit brought against "Director of Police, City of Memphis" is suit against city itself); Leach v. Shelby County Sheriff, 891 F.2d 1241, 1242 n.1 (6th Cir. 1989), cert. denied, 495 U.S. 932, 110 S. Ct. 2173, 109 L. Ed. 2d 502 (1990) (suit against county sheriff essentially suit against county itself); Marchese v. Lucas, 758 F.2d 181, 187 (6th Cir. 1985), cert. denied, 480 U.S. 916, 107 S. Ct. 1369, 94 L. Ed. 2d 685 (1987) (same). Thus, a suit nominally brought against Uffelman as director of the 19th Judicial District Drug Task Force is in fact a suit against the cities and counties comprising the Task Force if Uffelman functions as a final policymaker for the Task Force. *fn3"

 The preferred method of suing a city or county, however, is to name it in the complaint. If not named, the suit against the official may proceed only if the city or county, being the real party in interest, has received notice and an opportunity to respond. Brandon, 469 U.S. at 471-72, 105 S. Ct. at 878. In the instant case, defendant Uffelman argues that, except for the City of Springfield which was named in the complaint, the remaining cities and counties have neither received notice nor an opportunity to respond. Plaintiff has not addressed this allegation in her responses and, there being no indication in the record that the County of Montgomery, the City of Clarksville, and the County of Robertson have received notice and an opportunity to respond to this lawsuit, the action against them must be dismissed. Since the City of Springfield has been named separately in this action, it is unnecessary to determine whether a suit against Uffelman in his official capacity as director of the Task Force subjects Springfield to suit. The liability of Springfield is addressed below.

 There being no grounds or reason to bring an action against Uffelman in his official capacity, the suit against him in his official capacity will be dismissed.

 II. Liability of Defendants Benton and Gregory in their Individual Capacities.

 Plaintiff has named as defendants, Officers David Benton and Joan Gregory in their individual capacities. Both claim qualified immunity as a defense to this action. For the reasons discussed below, the Defendants' motion for summary judgment on these grounds will be denied.

 A. Qualified Immunity

 Public officials enjoy a qualified immunity from liability in lawsuits brought under § 1983. Immunity, based upon an objective reasonableness standard, was established in Harlow v. Fitzgerald, 457 U.S. 800, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982). "Government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Id. at 818, 102 S. Ct. at 2738.

 In Anderson v. Creighton, 483 U.S. 635, 107 S. Ct. 3034, 97 L. Ed. 2d 523 (1987), the Supreme Court elaborated on the meaning of the Harlow standard. The Anderson Court restated the Harlow qualified immunity standard in these terms: "Whether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the 'objective legal reasonableness' of the action[,] Harlow, 457 U.S. at 819, 102 S. Ct. at 2739, assessed in light of the legal rules that were 'clearly established' at the time it was taken, id. at 818, 102 S. Ct. at 2738."

 The Court then noted the operational difficulty in applying the standard absent some specificity in defining the "legal rule."

 The operation of this standard, however, depends substantially upon the level of generality at which the relevant "legal rule" is to be identified. For example, the right to due process of law is quite clearly established by the Due Process Clause, and thus there is a sense in which any action that violates that Clause (no matter how unclear it may be that the particular action is a violation) violates a clearly established right. Much the same could be said of any other constitutional or statutory violation. But if the test of "clearly established law" were to be applied at this level of generality, it would bear no relationship to the "objective legal reasonableness" that is the touchstone of Harlow. Plaintiffs would be able to convert the rule of qualified immunity that our cases plainly establish into a rule of virtually unqualified liability simply by alleging violation of extremely abstract rights.

 . . .

 It should not be surprising, therefore, that our cases establish that the right the official is alleged to have violated must have been "clearly established" in a more particularized, and hence more relevant, sense: The contours of the right 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 has previously been held unlawful, see Mitchell [v. Forsyth], 472 U.S. [511], 535, n.12, 105 S. Ct. [2806], 2820, n.12; but it is to say that in light of pre-existing law the unlawfulness must be apparent.

 483 U.S. at 639-40, 107 S. Ct. at 3038-39. Thus, the standard for consideration of a qualified immunity defense raised by a public official is this: Has the § 1983 plaintiff shown that the actions of the defendant public official violated a clearly established constitutional right, the contours of which are sufficiently clear in light of pre-existing law that a reasonable public official would know that his actions violate that right? The Defendants argue that as of the date of the strip search, the Plaintiff possessed no ...


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