                                                                         FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                      July 16, 2009
                    UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                      Clerk of Court
                             FOR THE TENTH CIRCUIT


    LORRI MYERS,

               Plaintiff-Appellee,

    v.                                                 No. 09-7001
                                              (D.C. No. 6:07-CV-00223-FHS)
    LORETTA JAMES; TRAVIS                              (E.D. Okla.)
    SAULSBERRY, in their individual
    and official capacities,

               Defendants-Appellants,

         and

    LEFLORE COUNTY DETENTION
    CENTER PUBLIC TRUST; COUNTY
    OF LEFLORE,

               Defendants.


                             ORDER AND JUDGMENT *


Before HARTZ, Circuit Judge, BRORBY, Senior Circuit Judge, and
TYMKOVICH, Circuit Judge.




*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      Loretta James and Travis Saulsberry appeal from the district court’s order

denying them qualified immunity with regard to Lorri Myers’ 42 U.S.C. § 1983

claim alleging she was strip searched at the LeFlore County Detention Center

(LCDC). Because this circuit’s law concerning strip searches was clearly

established at the time of the search, we affirm the district court’s decision.

                                     Background

      Late on August 31, 2006, Ms. Myers and her husband were stopped at a

traffic checkpoint. Mr. Myers (the driver) was transported to the LCDC but was

released after he passed a breath test. Ms. Myers was arrested for public

intoxication and was processed into the LCDC early in the morning of

September 1. Appellant James is the detention officer who processed Ms. Myers.

Appellant Saulsberry was the LCDC Jail Administrator from July through

December 2006.

      As part of the booking process, Officer James escorted Ms. Myers into the

shower room and issued her jail clothes. According to Ms. Myers, Officer James

required Ms. Myers to remove all of her civilian clothes and visually inspected

Ms. Myers’ naked body, though she did not perform a body cavity search.

Ms. Myers was required to shower and dress in the jail clothes. She was placed




                                          -2-
in a detox cell until her four-hour wait period 1 had elapsed, then she was released

on bail.

      Mr. and Ms. Myers brought suit under § 1983 and state law, challenging

their arrests and Ms. Myers’ detention at the LCDC. The only issue in this

limited interlocutory appeal concerns Ms. Myers’ § 1983 claim that the strip

search violated her Fourth and Fourteenth Amendment rights. With regard to this

claim, the district court noted that the defendants disputed Ms. Myers’ account of

the search. Accordingly, the court held that genuine issues of material fact

precluded the entry of summary judgment in favor of appellants. Appellants then

filed this interlocutory appeal challenging this denial of qualified immunity.

                                    Jurisdiction

      We first must satisfy ourselves that we have jurisdiction to hear this appeal.

See Johnson v. Martin, 195 F.3d 1208, 1213 (10th Cir. 1999). Ms. Myers argues

that we lack jurisdiction because the district court held that there were genuine

issues of material fact precluding summary judgment. This court has recognized,

however, that in the qualified immunity context, “even though a district court

concludes that there are controverted factual issues, a summary judgment ruling

may still be immediately appealable in certain circumstances.” Id. at 1214. “In

particular, if a defendant’s appeal of the denial of a motion for summary judgment

1
       LCDC’s policy is to hold allegedly intoxicated persons for at least four
hours, even if they appear sober and they post bail sooner. Ms. Myers’ challenge
to that policy is not at issue in this appeal.

                                         -3-
is based on the argument that, even under the plaintiff’s version of the facts, the

defendant did not violate clearly established law, then the district court’s

summary judgment ruling is immediately appealable.” Id. “In that circumstance

. . . a qualified immunity appeal raises the kind of abstract legal issues that are

separate from the factual issues that may arise at trial.” Id. On appeal, appellants

do argue that under Ms. Myers’ version of the facts, their conduct did not violate

clearly established law. Accordingly, we have jurisdiction. See id. at 1215.

                                       Analysis

      “We review the denial of qualified immunity de novo.” Archuleta v.

Wagner, 523 F.3d 1278, 1282 (10th Cir. 2008). Given our jurisdictional

limitations, our review is based solely on Ms. Myers’ version of the facts.

                                   A. Strip Search

      “The doctrine of qualified immunity protects public officials performing

discretionary functions unless their conduct violates clearly established statutory

or constitutional rights of which a reasonable person would have known.”

Johnson, 195 F.3d at 1216 (quotation omitted). “Furthermore, the law must be

clearly established at the time the alleged illegal conduct occurred.” Warner v.

Grand County, 57 F.3d 962, 964 (10th Cir. 1995). Appellants argue that on

September 1, 2006, it was not clearly established that in these circumstances, the

type of strip search Ms. Myers describes would be unconstitutional. Appellants’

argument has no merit.

                                          -4-
      “For the law to be clearly established, there must be a Supreme Court or

Tenth Circuit decision on point, or the clearly established weight of authority

from other courts must be as plaintiff maintains.” Foote v. Spiegel, 118 F.3d

1416, 1424 (10th Cir. 1997). In the last two decades, this court has issued several

decisions regarding strip searches of detainees. “We have articulated two primary

concerns in determining whether a strip search is reasonable for the purposes of

the Fourth Amendment: whether a detainee is to be placed in the general prison

population and whether there is reasonable suspicion that the detainee has

concealed weapons, drugs, or contraband.” Archuleta, 523 F.3d at 1284. In this

case, the undisputed fact is that Ms. Myers was never placed in the general prison

population, even briefly. And nothing in the record indicates a basis for a

reasonable suspicion that she was carrying weapons, drugs, or contraband on her

person, or that Officer James actually had any such suspicion.

      It was clearly established in this circuit well before September 1, 2006, that

“a detainee who is not placed in the general prison population cannot be strip

searched if the searching officer does not at least have reasonable suspicion that

the detainee possesses concealed weapons, drugs, or contraband.” Id. at 1286

(addressing status of the law as of April 2005). Several of this court’s opinions

have condemned strip searches in circumstances similar to this case. See id. at

1284-87 (denying qualified immunity for strip search of woman booked for

domestic violence); Foote, 118 F.3d at 1425 (denying qualified immunity for May

                                         -5-
1994 strip search of woman booked for driving under the influence of marijuana);

Warner, 57 F.3d at 964 (stating that on January 24, 1991, “it was clearly

established in this circuit that a brief intermingling with the general jail

population does not justify a strip search absent reasonable suspicion of drugs or

contraband”); Cottrell v. Kaysville City, 994 F.2d 730, 734 (10th Cir. 1993) (per

curiam) (stating, in case involving woman arrested for driving under the influence

in July 1991, “[w]e fail to see how this particular search, if it happened, could be

considered reasonable as a matter of law”); Chapman v. Nichols, 989 F.2d 393,

395-98 (10th Cir. 1993) (holding that private strip searches of women arrested for

minor traffic violations between fall 1991 and spring 1992 were unconstitutional,

and stating that “no objectively reasonable person would believe that a strip

search of a minor offense detainee would be constitutional simply because the

search did not involve a more obtrusive viewing of the detainee’s naked body”);

Hill v. Bogans, 735 F.2d 391, 394-95 (10th Cir. 1984) (holding unconstitutional a

strip search of a detainee charged only with an outstanding warrant for a traffic

offense, who was only briefly intermingled with the prison population).

      Relying on Powell v. Barrett, 541 F.3d 1298 (11th Cir. 2008) (en banc),

appellants contend that this circuit’s precedent misapplies Bell v. Wolfish,

441 U.S. 520 (1979), and that therefore the search was constitutional. We are

unpersuaded. This court’s opinions remain binding in this circuit until the

Supreme Court or the en banc circuit court overrules them, see In re Smith,

                                           -6-
10 F.3d 723, 724 (10th Cir. 1993) (per curiam), and the cases discussed above

have not been overruled. A decision handed down in another circuit, two years

after the events at issue in this case, does not undermine our conclusion that this

circuit’s law was clearly established in September 2006.

                              B. Saulsberry’s Liability

      Mr. Saulsberry argues that Ms. Myers has failed to prove that he had any

personal participation in the strip search and that her failure to prove such

personal participation is fatal to her § 1983 claim. But it appears that the theories

of liability Ms. Myers has asserted against Mr. Saulsberry do not rely on his

personal participation in the search, but instead allege he is responsible for an

unconstitutional practice and procedure at the LCDC and for failure to train. See

Aplt. App. at 214, 217 (Ms. Myers’ summary judgment response brief); see also

id. at 413 (district court opinion finding “there remain unresolved factual issues

concerning supervisory . . . liability”). Mr. Saulsberry does not address these

theories in appellants’ opening brief, so we need not consider them at this time.

Resolution Trust Corp. v. Fed. Sav. & Loan Ins. Corp., 25 F.3d 1493, 1506-07

(10th Cir. 1994) (“Generally, issues not pursued in the brief-in-chief are deemed

abandoned and waived.”).




                                          -7-
                           Conclusion

The judgment of the district court is AFFIRMED.


                                          Entered for the Court



                                          Wade Brorby
                                          Senior Circuit Judge




                               -8-
