The opinion of the court was delivered by: Judge Feinerman
MEMORANDUM OPINION AND ORDER
Plaintiffs Abraham Carmichael and Keith Sawyer brought this action against the Village of Palatine and two of its police officers, Timothy Sharkey and Steve Bushore, alleging Fourth Amendment violations under 42 U.S.C. § 1983 and related state law claims. Two years ago, Defendants were granted summary judgment on all claims. 2008 WL 5111174 (N.D. Ill. Dec. 4, 2008). The Seventh Circuit reversed and remanded with respect to two Fourth Amendment claims: (1) the validity of the initial seizure of Carmichael and Sawyer; and (2) Sawyer's claim that the manner of the search of his person was unreasonable. 605 F.3d 451 (7th Cir. 2010). Finding that the unreasonable search claim "was litigated in a perfunctory manner before the district court," the Seventh Circuit left open the possibility that Defendants, on remand, could again seek summary judgment on that claim. Id. at 460. Defendants have accepted the Seventh Circuit's invitation and moved for summary judgment. The motion is denied.
The Seventh Circuit described the events pertinent to the unreasonable search claim as follows. After handcuffing and conducting a pat-down search of Sawyer, Officer Sharkey found "a bag containing a significant quantity of crack cocaine" when searching the interior of the vehicle in which Sawyer and Carmichael were riding. Id. at 454. Officer Sharkey then returned to Mr. Sawyer and conducted a more complete search, the details of which are not in significant dispute. Officer Sharkey pulled Mr. Sawyer's pants partially down and pulled his underwear away from his body. Officer Sharkey shone a flashlight into Mr. Sawyer's pants and, when the search was complete, informed Mr. Sawyer that he was free to go.
The parties' recent summary judgment filings provide further details, which are set forth here with all genuine factual disputes resolved in Sawyer's favor. The events occurred in the parking lot of a Motel 6, near Dundee Road and Kennedy Drive in Palatine. During the search of Sawyer's person, Officer Sharkey unbuttoned Sawyer's pants and lowered them to mid-thigh, pulled Sawyer's underwear out, and shined a flashlight on and looked at Sawyer's genitals. Officer Sharkey then told Sawyer to bend over; Sawyer complied, and Sharkey proceeded to pull out Sawyer's underwear and shine a flashlight on and looked at his buttocks. Officer Bushore observed these events, as did Carmichael and two female passersby. Sharkey told Sawyer to go, and Sawyer was neither arrested nor charged with any crime.
Defendants contend that they are entitled to qualified immunity on Sawyer's claim that the manner of the search was unreasonable. "The doctrine of qualified immunity protects government officials from liability for civil damages when their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." McAllister v. Price, 615 F.3d 877, 881 (7th Cir. 2010) (citing Pearson v. Callahan, 555 U.S. 223 (2009)). "When confronted with a claim for qualified immunity, [the court] must address two questions: whether the plaintiff's allegations make out a deprivation of a constitutional right, and whether the right was clearly established at the time of defendant's alleged misconduct." Ibid. (citing Wheeler v. Lawson, 539 F.3d 629, 639 (7th Cir. 2008)).
The first question is whether, construing the record in the light most favorable to Sawyer, Officer Sharkey's public, intrusive search of Sawyer's person violated the Fourth Amendment. Whether a search complies with the Fourth Amendment 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." Campbell, 499 F.3d at 716 (citing Bell v. Wolfish, 441 U.S. 520, 559 (1979)). In Campbell, the Seventh Circuit considered the Fourth Amendment validity of a comparably intimate search conducted in a public setting. Campbell was arrested in front of his friend's house on suspicion of marijuana possession. After an initial patdown revealed no weapons or contraband, two officers took Campbell into the house's backyard, where one of the officers "undid Campbell's belt buckle, pulled his pants partway down, and had him lean forward." Id. at 715. The officer then "separated Campbell's buttocks and did a 'visual inspection' so as to 'make sure he had nothing shoved into his anal area.'" Ibid. Campbell was issued a summons, but not placed under custodial arrest. Campbell's friend watched the search from his kitchen window, and the backyard was visible from other homes.
The jury returned a defense verdict, and the district court denied Campbell's motion for judgment as a matter of law under Fed. R. Civ. P. 50(a). The Seventh Circuit reversed and remanded with instructions to enter judgment in Campbell's favor on the unreasonable search claim. The court's reasoning is worth quoting at length:
The question here is . whether the search performed on Campbell, involving as it did public nudity and exposure of intimate body parts, was reasonable. In our view, it was not, and no reasonable jury could have found otherwise. We have previously recognized that strip searches involving the visual inspection of the anal area are demeaning, dehumanizing, undignified, humiliating, terrifying, unpleasant, embarrassing, repulsive, and signify degradation and submission. [citation omitted]. The invasion of privacy rights at issue here is at its highest, no matter where the search was conducted. Having decided, legitimately, to conduct this type of search, the police inexplicably did not even afford Campbell the dignity of doing it in a private place. (For example, they could have taken him briefly to the lock-up facility. .)
The Supreme Court noted in Illinois v. Lafayette, 462 U.S. 640, 645 (1983), in the course of discussing inventory searches incident to booking and jailing:
Police conduct that would be impractical or unreasonable-or embarrassingly intrusive-on the street can more readily-and privately-be performed at the station. For example, the interests supporting a search incident to arrest would hardly justify disrobing an arrestee on the street, but the practical necessities of routine jail administration may even justify taking a prisoner's clothes before confining him, although that step would be rare.
Courts across the country are uniform in their condemnation of intrusive searches performed in public. [citations omitted].
There is no dispute in this record that the search was conducted in an area where Campbell's friend was able to watch and where others could have done so as well. Moreover, there was nothing before the jury that suggested any conceivable exigency that could be met only by strip searching Campbell in public, on the spot. In our ...