                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                               Nos. 05-3770/3771
                                 ___________

Courtney Richmond,                         *
                                           *
       Appellant/Cross-Appellee,            *
                                           *
       v.                                  *
                                           *
City of Brooklyn Center, a municipal       *
corporation; Brian Robert Bruce,           *    Appeals from the United States
individually and in his capacity as a      *    District Court for the
police officer in the Police Department *       District of Minnesota.
of the City of Brooklyn Center;            *
Garrett Flesland, individually and in      *
his capacity as a police officer in the    *
Police Department of the City of           *
Brooklyn Center; Mike Reynolds,            *
individually and in his capacity as a      *
police officer in the Police Department *
of the City of Brooklyn Center,            *
                                           *
       Appellees/Cross-Appellants.          *
                                      ___________

                            Submitted: June 16, 2006
                               Filed: June 21, 2007
                                ___________
Before MELLOY,1 SMITH and GRUENDER, Circuit Judges.
                           ___________

GRUENDER, Circuit Judge.

        Courtney Richmond sued the City of Brooklyn Center, Minnesota and three of
its police officers, Robert Bruce, Garrett Flesland and Mike Reynolds, for alleged civil
rights violations arising from a strip search of Richmond in his motel room. A jury
found that Officer Bruce conducted the strip search in an unreasonable manner but
that the search did not cause actual injury to Richmond. As a result, the district court
reduced the jury’s $35,000 “nominal” damages award to one dollar. Richmond
appeals the reduction of damages, while Officer Bruce cross-appeals the district
court’s denial of qualified immunity. For the reasons discussed below, we reverse the
district court’s denial of qualified immunity and direct entry of judgment for Officer
Bruce.

I.    BACKGROUND

       On April 29, 2001, Brooklyn Center police received an anonymous tip that
drugs were being sold from three identified rooms at a local Motel 6. Officers Bruce,
Flesland and Reynolds were dispatched to the Motel 6. The officers knocked at all
three rooms, but they received a response from only one room. The officers were
allowed entry into that room, where they smelled marijuana and observed marijuana
cigarettes. The officers then proceeded to the motel’s front desk and obtained a guest
list. Officer Bruce called one of the two remaining rooms on his cell phone, and
Richmond answered. Officer Bruce did not identify himself. According to
Richmond, Officer Bruce asked about buying drugs, and Richmond simply hung up

      1
         The Honorable Gerald W. Heaney retired on August 31, 2006. This opinion
is filed by the remaining members of the panel and the Honorable Michael J. Melloy,
who was designated, pursuant to 8th Circuit Rule 47E, to replace Judge Heaney on the
panel.

                                          -2-
the phone. Officer Bruce, on the other hand, claimed that he made no mention of drugs
and that he pretended he had dialed a wrong number.

       After the phone call, the officers returned to Richmond’s motel room, and
Richmond came to the door. The officers spoke with Richmond through the partially
open door, informing him that they had received a report about possible narcotics
activity in his room. Richmond stated that his name was Tyrone Johnson and gave a
date of birth. The officers requested a computer check of the name and date of birth
and received a response of “not on file.” The officers informed Richmond that they
believed he had given a false name. Richmond soon told police that his real name was
Courtney Richmond and admitted that there was an outstanding warrant for his arrest.
The officers entered the room and arrested Richmond.

       The ensuing search revealed a small amount of marijuana in Richmond’s shirt
pocket and over $1,300 in cash in Richmond’s pants, as well as cell phones, pagers
and “tear-offs.”2 The officers requested a computer check of Richmond’s real name
and learned that Richmond had several previous felony narcotic arrests. Officer Bruce
informed Richmond that he believed Richmond likely was concealing drugs on his
person and that Bruce was going to check his “crotch area.” Officer Flesland held
Richmond, who was handcuffed, above the elbow to prevent him from pulling away
or pivoting. Officer Bruce unbuckled Richmond’s belt and let Richmond’s pants fall
to the ground. Officer Bruce then lowered Richmond’s boxer shorts with two hands
and visually inspected, without touching, Richmond’s genitalia and buttocks. Officer
Bruce observed that Richmond was clenching his buttocks. Richmond testified that
Officer Flesland then forcibly bent him over a table, while Officers Bruce and
Flesland testified that Richmond leaned forward on his own at Officer Bruce’s request
and that there was no table in front of him. When Richmond was positioned forward,


      2
        “Tear-offs” are the corners of plastic baggies tied off and torn away from the
rest of the baggie, used to package narcotics for sale.

                                         -3-
Officer Bruce observed a piece of tissue protruding from Richmond’s buttocks.
Officer Bruce put on a latex glove and, according to Officer Bruce, grabbed the corner
of the tissue with a quick swiping motion, avoiding contact with Richmond’s skin, and
threw the tissue to the ground. According to Richmond, Officer Bruce penetrated
Richmond’s anus to retrieve the tissue and then reinserted two or three fingers into
Richmond’s anus and “moved them around.” Richmond yelled and swore during the
search and testified that he felt as though he was being raped. The tissue retrieved
from Richmond’s buttocks contained 3.7 grams of cocaine.

       In Richmond’s state criminal prosecution, the state court suppressed the 3.7
grams of cocaine as the fruit of an illegal search, and the charges against Richmond
were dismissed. Richmond later filed the instant action against the City of Brooklyn
Center and Officers Bruce, Flesland and Reynolds, claiming damages under 42 U.S.C.
§ 1983 for an unreasonable search. The district court denied the defendants’ motion
for summary judgment based on qualified immunity, finding, inter alia, a disputed
question of material fact as to whether a body-cavity search occurred and concluding
that qualified immunity was not appropriate on the facts as set forth by Richmond.
The defendants did not pursue an interlocutory appeal.

       The case proceeded to a four-day jury trial on Richmond’s claims that the
officers performed an unreasonable strip search or body-cavity search, used excessive
force, and committed assault and battery. The district court submitted to the jury a
special verdict form with 31 special interrogatories. The jury found that (1) no officer
used excessive force, assaulted or battered Richmond; (2) the alleged body cavity
search of Richmond did not occur; (3) exigent circumstances were present to justify
a body cavity search, had one occurred; (4) the officers had reasonable suspicion to
support the strip search; (5) Officer Bruce did not conduct the strip search in a




                                          -4-
reasonable manner;3 and (6) the strip search was not a direct cause of injury to
Richmond. Despite the finding of no actual damages and a jury instruction stating
that, in the absence of damages, nominal damages should be $1, the jury awarded
nominal damages of $35,000.

       Richmond moved for a new trial on the issues of whether the strip search
caused actual damages, whether the officers had reasonable suspicion to conduct a
strip search, whether Officer Flesland behaved reasonably and whether a body cavity
search occurred. Officer Bruce moved for judgment as a matter of law based on
qualified immunity and for a reduction of the nominal damages award to $1. The
district court denied all post-trial motions save Officer Bruce’s motion to reduce the
nominal damages to $1. Richmond now appeals the reduction of nominal damages
and the denial of his motion for a new trial on the issue of whether he suffered actual
damages, while Officer Bruce cross-appeals the denial of qualified immunity and the
exclusion of certain evidence.

II.   DISCUSSION

       We first address Officer Bruce’s cross-appeal of the denial of his post-trial
motion for judgment as a matter of law based on qualified immunity. “Qualified
immunity protects a government official from liability in a section 1983 action unless
the official’s conduct violated a clearly established constitutional or statutory right of
which a reasonable person would have known.” Henderson v. Munn, 439 F.3d 497,
501 (8th Cir. 2006). To determine whether an officer is entitled to qualified
immunity, we ask first whether the officer’s conduct violated a constitutional right,
and second whether that right was clearly established at the time of the deprivation “in
light of the specific context of the case.” Saucier v. Katz, 533 U.S. 194, 201 (2001).


      3
       The jury found that Officer Flesland’s conduct during the strip search was
reasonable.

                                           -5-
We review the district court’s determination of qualified immunity de novo. Hill v.
McKinley, 311 F.3d 899, 902 (8th Cir. 2002). Where qualified immunity is asserted
in a motion for judgment as a matter of law, we view the facts in the light most
favorable to the prevailing party at trial. See id. In particular, we rely on the jury’s
factual findings on the special verdict form in making our qualified immunity ruling.
Littrell v. Franklin, 388 F.3d 578, 585 (8th Cir. 2004). On some of these special
findings Richmond prevailed at trial, while on others the defendants prevailed. To the
extent facts covered by a special interrogatory affect the qualified immunity analysis,
we must view those facts in the light most favorable to the jury’s special verdict.

        The Fourth Amendment reasonableness of a strip search turns on “the scope of
the particular intrusion, the manner in which it is conducted, the justification for
initiating it, and the place in which it is conducted.” Bell v. Wolfish, 441 U.S. 520,
559 (1979). The facts regarding the location, justification and scope of the strip
search in the instant case are relatively well-defined. It is undisputed that the search
took place in Richmond’s motel room. With regard to justification, there is no
challenge on appeal to the jury’s finding that the officers had reasonable suspicion to
conduct a strip search. Cf. Jones v. Edwards, 770 F.2d 739, 741-42 (8th Cir. 1985)
(finding a strip search of an arrestee violated the Fourth Amendment where authorities
had no reasonable suspicion of concealed weapons or contraband). With regard to
scope, the jury rejected Richmond’s testimony that a body cavity search occurred.
The only other testimony regarding the scope of the search was that it consisted of a
visual-only inspection of Richmond’s genitals and buttocks, followed by the removal
of tissue from his clenched buttocks with a quick swiping motion.

        The most difficult facts to resolve are those regarding the manner of the search.
It is undisputed that, while Richmond was handcuffed and held above the elbow by
Officer Flesland, Officer Bruce unbuckled Richmond’s belt, let Richmond’s pants fall
to the ground and then lowered Richmond’s boxer shorts with two hands. The jury
was not given a special interrogatory to resolve whether Officer Flesland then forcibly

                                          -6-
bent Richmond over a table, as Richmond alleged, or rather Richmond leaned forward
on his own at Officer Bruce’s request with no table in front of him. However, the jury
did find specifically that Officer Flesland’s conduct regarding the strip search of
Richmond was reasonable. Finally, it is undisputed that Officer Bruce was wearing
a latex glove when he retrieved the tissue from Richmond’s buttocks.

        The defendants do not dispute on appeal the jury’s finding that Officer Bruce
conducted the strip search in an unreasonable manner in violation of Richmond’s
Fourth Amendment rights. Therefore, we proceed directly to the second prong of the
qualified immunity analysis, which asks whether the asserted constitutional right was
clearly established. See Littrell, 388 F.3d at 584.4 A right is clearly established only
if the contours of the right are so defined at the time of the incident that a reasonable
officer in the defendant’s position would have understood that what he was doing
violated the law. Parks v. Pomeroy, 387 F.3d 949, 957 (8th Cir. 2004). “Officials are
not liable for bad guesses in gray areas; they are liable for transgressing bright lines.”




       4
         Saucier instructs that in qualified immunity analyses at the summary judgment
stage, the court should address the first prong of the qualified immunity analysis and
expressly decide as a matter of law whether a constitutional violation occurred based
on the facts asserted by the plaintiff. See Hill, 311 F.3d at 903 (“This inquiry is made
first so that even if the right asserted is not clearly established, a determination that it
was violated might ‘set forth principles which will become the basis for a holding that
a right is clearly established.’” (quoting Saucier, 533 U.S. at 200)). However, Saucier
does not compel us to perform the first-prong analysis after a trial on the merits where
the parties have not raised the issue on appeal. We naturally have performed the post-
verdict first-prong analysis in a case where the defendants disputed on appeal the
jury’s finding that a constitutional violation occurred, see Hill, 311 F.3d at 902-03, but
we have declined to do so where, as here, the defendants did not challenge the
sufficiency of the evidence for the jury’s finding of a constitutional violation, see
Littrell, 388 F.3d at 584. Consequently, we need not determine whether the evidence
supported a finding of a constitutional violation in the instant case.

                                            -7-
Davis v. Hall, 375 F.3d 703, 712 (8th Cir. 2004). Whether a right is clearly
established is a question of law that we review de novo. Hill, 311 F.3d at 902.5

       We hold that a reasonable officer in the defendant’s position would not have
understood that the strip search of Richmond in his motel room would violate his
constitutional rights. The law in April 2001 was clear that strip searches should be
conducted in an area as removed from public view as possible without compromising
legitimate security concerns. See Franklin v. Lockhart, 883 F.2d 654, 656-57 (8th Cir.
1989) (holding that visual body cavity searches of prison inmates conducted within
view of four to six other inmates did not violate the Fourth Amendment because any
measures taken to increase privacy would implicate legitimate prison security
concerns); see also Hill v. Bogans, 735 F.2d 391, 393-94 (10th Cir. 1984) (finding the
manner of a strip search of an arrestee unreasonable where it was conducted in a
police station lobby area with “ten to twelve people . . . milling about”). The law was
also clear that strip searches should be conducted by officials of the same sex as the
individual to be searched. E.g., Roberts v. Rhode Island, 239 F.3d 107, 113 (1st Cir.
2001); see also Justice v. Peachtree City, 961 F.2d 188, 193 (11th Cir. 1992). Finally,
the law was clear that strip searches should be performed in a hygienic fashion and not
in a degrading, humiliating or abusive fashion. Cf. Seltzer-Bey v. Delo, 66 F.3d 961,


       5
        The district court erred by leaving this question to the jury. In ruling on
Officer Bruce’s motion for judgment as a matter of law based on qualified immunity,
the district court stated that “the record . . . contains evidence sufficient for a jury to
conclude that the law prohibiting unreasonable searches—determined by the search’s
scope, manner, justification, and location—was clearly established at the time of the
search, and that the law’s application to Defendant’s actions was evident.” The
district court should have analyzed this question as a matter of law without regard to
the jury’s verdict. Littrell, 388 F.3d at 584-85 (“The issue of qualified immunity is
a question of law for the court, rather than the jury, to decide: ‘It is the province of the
jury to determine disputed predicate facts, the question of qualified immunity is one
of law for the court.’” (quoting Peterson v. City of Plymouth, 60 F.3d 469, 473 n.6
(8th Cir. 1995))).

                                            -8-
962-63 (8th Cir. 1995) (holding that a plaintiff stated a valid Fourth Amendment
search-and-seizure claim where he alleged that he was subjected to sexual comments
about his anatomy and rubbing of his buttocks with a nightstick during strip searches);
see also Bell, 441 U.S. at 560 (stating that it is unreasonable to conduct a strip search
“in an abusive fashion”); Bonitz v. Fair, 804 F.2d 164, 172-73 (1st Cir. 1986) (holding
body-cavity searches unreasonable where, inter alia, the searching officers wore a
single pair of gloves while searching multiple inmates), overruled on other grounds
by Unwin v. Campbell, 863 F.2d 124, 128 (1st Cir. 1988), abrogated by Johnson v.
Jones, 515 U.S. 304 (1995) (abrogating Unwin).

       In this case, the standards for privacy and hygiene clearly were met because
only the officers and the arrestee were present for the strip search, the motel room was
isolated from public view, the officers were the same sex as Richmond, and Officer
Bruce wore a sanitary latex glove. Richmond claims that the search was performed
in a degrading, humiliating or abusive manner because he was restrained during the
search, he was not allowed to lower his own pants and boxer shorts, and Officer
Flesland forcibly bent him over a table for the search. First, while the special verdict
form did not ask the jury to make a specific finding as to whether Officer Flesland
forcibly bent Richmond over a table, the jury did find specifically that Officer
Flesland’s conduct during the search was reasonable. This indicates strongly that
when the jury rejected Richmond’s testimony that the search included a body cavity
search, it also rejected his concurrent testimony about Officer Flesland forcibly
bending him over a table during the search. Therefore, viewing the evidence in the
light most favorable to the verdict, we reject this aspect of Richmond’s allegation.

       Next, we examine the law as of April 2001 to see if it would have put a
reasonable officer on notice that lowering a handcuffed arrestee’s pants and boxer
shorts for a strip search, while another officer held the arrestee’s upper arm, would be
held to be degrading, humiliating and abusive. As examples of an unreasonably
abusive search, Bell cited cases that involved the use of “insultingly suggestive

                                          -9-
remarks and banal but terrifying expressions of aggression like those of guards
threatening in the time of nakedness to ‘put [a] foot up [the] ass’ or merely to ‘kick the
ass’ of the humbled prisoner,” United States ex rel. Wolfish v. Levi, 439 F. Supp. 114,
147 (D.N.Y. 1977), rev’d on other grounds by Bell, 441 U.S. at 524, cited by Bell, 441
U.S. at 560, and the drawing of blood “by other than medical personnel or in other
than a medical environment—for example, if it were [done] by police in the privacy
of the stationhouse,” because such a search would “invite an unjustified element of
personal risk of infection and pain,” Schmerber v. California, 384 U.S. 757, 771-72
(1966), cited by Bell, 441 U.S. at 560. Strip searches had also been found to be
unreasonably degrading, humiliating and abusive where “beatings often accompany
these [visual-only body-cavity] searches, and . . . the correctional officers who
administer the searches frequently make insulting, abusive, humiliating and
intimidating comments and jokes during the course of the searches,” Arruda v.
Berman, 522 F. Supp. 766, 768 (D. Mass. 1981) (internal quotation marks omitted),
cited by Bonitz, 804 F.2d at 171. In the instant case, the jury specifically found no use
of excessive force, and apart from Richmond’s rejected testimony regarding a body
cavity search, there were no allegations that the officers attempted to inflict pain or
humiliation while conducting the search. Richmond does not cite any evidence of
insulting, intimidating or humiliating comments or jokes by the officers.

        Richmond argues that it was unreasonably abusive or degrading to conduct the
strip search while he was restrained, and thus unable to lower his own pants and boxer
shorts, rather than to transport him to the police station for the strip search. However,
“[t]he Fourth Amendment does not require officers to use the least intrusive or less
intrusive means to effectuate a search but instead permits a range of objectively
reasonable conduct.” Shade v. City of Farmington, 309 F.3d 1054, 1061 (8th Cir.
2002). In this case, the officers had reasonable suspicion that Richmond was
concealing evidence on his person and were in a position to conduct a private,
hygienic and non-abusive strip search on the spot, rather than risk Richmond
disposing of the evidence during the course of his transportation to the police station.

                                          -10-
See United States v. Barrow, 287 F.3d 733, 735-36 (8th Cir. 2002) (addressing an
issue of proof of possession created where an arrestee with hands cuffed behind his
back managed to dispose of a bag of crack cocaine in the back seat of a patrol car).
Indeed, the jury in the instant case specifically found exigent circumstances to support
even a body cavity search, had one occurred. No clearly established legal standards
would have put a reasonable officer on notice that, in these particular circumstances,
it was objectively unreasonable to lower the handcuffed arrestee’s pants and boxer
shorts to accomplish the strip search, rather than to risk loss of evidence by waiting
until the arrestee was in an environment where handcuffs were not required. See
Malley v. Briggs, 475 U.S. 335, 341 (1986) (noting that qualified immunity protects
“all but the plainly incompetent or those who knowingly violate the law”). Therefore,
Officer Bruce is entitled to qualified immunity.

III.   CONCLUSION

       We conclude that Officer Bruce is entitled to qualified immunity. Accordingly,
we do not reach Officer Bruce’s arguments regarding the exclusion of certain
evidence or Richmond’s arguments on the reduction of nominal damages or a new
trial on actual damages. We remand to the district court with instructions to vacate
the entry of judgment for Richmond and to enter judgment for Officer Bruce
consistent with this opinion.

SMITH, Circuit Judge, dissenting.

      I disagree with the majority's qualified immunity conclusion and therefore
respectfully dissent.

       As stated by the majority, our qualified immunity analysis focuses on whether
Richmond possessed a clearly established right to be free from a forcible strip search
that took place in the field rather than in a controlled environment, such as a jailhouse.

                                          -11-
Whether a right is clearly established is a question of law that we review de novo. Hill
v. McKinley, 311 F.3d 899, 902 (8th Cir. 2002).

       A person's right to be free from a strip search conducted in an unreasonable
manner is clearly established. See Bell v. Wolfish, 441 U.S. 520, 559–60 (1979).
However, our inquiry is more precise: Was it clearly established that the forcible strip
search of a suspect in the field for investigative purposes was unreasonable? Cf. Evans
v. Stephens, 407 F.3d 1272, 1283 (11th Cir. 2005) (en banc) ("Seldom does a general
standard such as 'to act reasonably' put officers on notice that certain conduct will
violate federal law: Fourth Amendment law is intensely fact specific.").

       I believe that the right was clearly established. A strip search conducted with
the utmost courtesy is nonetheless inherently humiliating and degrading. Swain v.
Spinney, 117 F.3d 1, 6 (1st Cir. 1997); Mary Beth G. v. City of Chic., 723 F.2d 1263,
1272 (7th Cir. 1983) (recognizing the "magnitude of the invasion of personal rights"
that a strip search represents, characterizing it as "demeaning, dehumanizing,
undignified, humiliating, terrifying, unpleasant, embarrassing, repulsive, signifying
degradation and submission . . . ." (citation and internal quotations omitted)).
Considering the nature of the strip search, courts have held that a constitutional strip
search should be conducted in private, e.g., Young v. City of Little Rock, 249 F.3d 730,
736 (8th Cir. 2001), and in a hygienic manner, e.g., Evans, 407 F.3d at 1277.
Although a strip search need not be conducted in the least intrusive manner, it must
be conducted in a non-abusive manner. Evans, 407 F.3d at 1281 (citing Bell, 441 U.S.
at 560 (noting that even corrections officers in a jail cannot conduct strip searches of
incarcerated inmates in "an abusive fashion")).

      The officers subjected Richmond to an unnecessarily invasive and intimidating
search. Although the search was conducted in the relative privacy of a motel room by
male officers using sterile gloves, no urgency justified forcibly strip searching a
handcuffed arrestee. Officer Reynolds testified that no exigent circumstances existed,

                                         -12-
and the record lacks sufficient evidence to support the jury's finding that exigent
circumstances were present. Moreover, field strip searches are not common—all three
officers testified that they have never strip searched a suspect in the field before or
since the search of Richmond—and may excite increased fear and intimidation. See
Evans, 407 F.3d at 1281 (noting that plaintiffs were searched in "an abnormal place,"
a broom closet, rather than "a dedicated search cell, medical examination room, or
even a bathroom"). Investigative strip searches usually involve an officer's request to
the subject of a strip search to remove his or her own clothing. E.g., Way v. County of
Ventura, 445 F.3d 1157, 1159 (9th Cir. 2006); Evans, 407 F.3d at 1276–77; Swain,
117 F.3d at 4. Non-consensual and forcible field strip searches of restrained arrestees
are not a matter of routine law enforcement investigation incident to arrest. An
objectively reasonable police officer should have known that forcible removal of a
physically restrained person's clothing, coupled with inspection of his genitalia and
buttocks, involves a level of intrusion that requires more justification than the instant
facts establish.

      I therefore respectfully dissent.
                       ______________________________




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