Full opinion text
MEMORANDUM OPINION AND ORDER HART, District Judge. As presently constituted, this case has approximately 90 named plaintiffs, virtually all of whom are African-American women with United States citizenship who allegedly were searched by employees of the United States Customs Service at Chicago’s O’Hare International Airport (“O'Hare”) following their arrival on international flights. The searches of the named plaintiffs allegedly occurred between March 1996 and August 1999. Named as defendants are the United States, the United States Customs Service, and approximately 70 current or former employees of the Customs Service. Management officials, lower-level supervisors, and nonsupervisory employees have been sued in their individual capacities. A ruling was recently issued regarding a summary judgment motion brought by Managerial Defendants. See Anderson v. Cornejo, 225 F.Supp.2d 834 (N.D.Ill.2002) (“Anderson VIII”). Thereafter, defendants moved for summary judgment on the claims made by six selected plaintiffs. There is an expectation that ruling on the present motion may aid in the resolution of the similar claims of the other plaintiffs. L SUMMARY JUDGMENT STANDARD On a motion for summary judgment, the entire record is considered with all reasonable inferences drawn in favor of the non-movant and all factual disputes resolved in favor of the nonmovant. Turner v. J.V.D.B. & Associates, Inc., 330 F.3d 991, 994-95 (7th Cir.2003); Palmer v. Marion County, 327 F.3d 588, 592 (7th Cir.2003); Abrams v. Walker, 307 F.3d 650, 653-54 (7th Cir.2002). The burden of establishing a lack of any genuine issue of material fact rests on the movant. Outlaw v. Newkirk, 259 F.3d 833, 837 (7th Cir.2001); Wollin v. Gondert, 192 F.3d 616, 621-22 (7th Cir.1999). The nonmovant, however, must make a showing sufficient to establish any essential element for which she will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Binz v. Brandt Construction Co., 301 F.3d 529, 532 (7th Cir.2002); Traylor v. Brown, 295 F.3d 783, 790 (7th Cir.2002). The movant need not provide affidavits or deposition testimony showing the nonexistence of such essential elements. Celotex, 477 U.S. at 324, 106 S.Ct. 2548. Also, it is not sufficient to show evidence of purportedly disputed facts if those facts are not plausible in light of the entire record. See NLFC, Inc. v. Devcom Mid-America, Inc., 45 F.3d 231, 236 (7th Cir.), cert. denied, 515 U.S. 1104, 115 S.Ct. 2249, 132 L.Ed.2d 257 (1995); Covalt v. Carey Canada, Inc., 950 F.2d 481, 485 (7th Cir.1991); Collins v. Associated Pathologists, Ltd., 844 F.2d 473, 476-77 (7th Cir.), cert. denied, 488 U.S. 852, 109 S.Ct. 137, 102 L.Ed.2d 110 (1988). As the Seventh Circuit has summarized: The party moving for summary judgment carries the initial burden of production to identify “those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.” Logan v. Commercial Union Ins. Co., 96 F.3d 971, 978 (7th Cir.1996) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (citation and internal quotation omitted)). The moving party may discharge this burden by “ ‘showing’ — that is, pointing out to the district court — that there is an absence of evidence to support the non-moving party’s case.” Celotex, 477 U.S. at 325, 106 S.Ct. 2548. Once the moving party satisfies this burden, the nonmov-ant must “set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e). “The non-movant must do more, however, than demonstrate some factual disagreement between the parties; the issue must be ‘material.’ ” Logan, 96 F.Bd at 978. “Irrelevant or unnecessary facts do not preclude summary judgment even when they are in dispute.” Id. (citation omitted). In determining whether the non-movant has identified a “material” issue of fact for trial, we are guided by the applicable substantive law; “[o]nly disputes that could affect the outcome of the suit under governing law will properly preclude the entry of summary judgment.” McGinn v. Burlington Northern R.R. Co., 102 F.3d 295, 298 (7th Cir.1996) (citation omitted). Furthermore, a factual dispute is “genuine” for summary judgment purposes only when there is “sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Hence, a “metaphysical doubt” regarding the existence of a genuine fact issue is not enough to stave off summary judgment, and “the nonmovant fails to demonstrate a genuine issue for trial ‘where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party....’” Logan, 96 F.3d at 978 (quoting Matsushita Elec. Indus., Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). Outlaw, 259 F.3d at 837. II. PENDING CLAIMS Following prior rulings on motions to dismiss, for class certification, and for summary judgment, the following claims remain pending in the Seventh Amended Complaint. See Anderson VIII, supra; Anderson v. Cornejo, 199 F.R.D. 228 (N.D.Ill.2000) (“Anderson IV"); Anderson v. Cornejo, 1999 WL 258501 (N.D.Ill. April 21, 1999) (“Anderson II”). See also Anderson v. Cornejo, 1999 WL 35307 (N.D.Ill. Jan.11, 1999) ("Anderson I"). Count I is an equal protection claim that Customs Inspectors targeted African-American women for nonroutine personal searches. Count III is a Fourth Amendment claim that Customs Inspectors lacked sufficient cause or suspicion to seize, detain, and search plaintiffs. Count V is a Federal Tort Claims Act (“FTCA”) claim against the United States that the conduct of the individual defendants constitutes false imprisonment, assault, and battery. Count VI is a Fourth and Fifth Amendment claim that Customs Inspectors denied due process by not obtaining judicial authorization for the searches and by holding plaintiffs “in communicado.” Count II is an equal protection claim that Managerial and Supervisory Defendants failed to take proper action to prevent or stop the discriminatory selection of African-American woman for nonroutine personal searches alleged in Count I. Counts IV, VII, VIII, IX, and X have previously been dismissed. See Anderson-VIII, 225 F.Supp.2d at 864-67; Order dated March 27, 2002 [342]; Order dated April 3, 2002 [346]; Order dated April 25, 2002 [350]. The pending summary judgment motion concerns the Count I, II, III, V, and VI damages claims of six named plaintiffs: Michelle Absolam, Adunni Allen, Jacqueline Jones, Ruby Mendenhall, Katherine Milner, and Yvette Price (the “Summary Judgment Plaintiffs”). The defendants that are alleged to have been involved in the searches of the Summary Judgment Plaintiffs are Customs Inspectors Michelle Belcastro, Carol Czech, Guadalupe Corona, Victoria Diez, Lynda Hall, Olga Martinez, Douglas Nathaniel, Alma Reyther, Maria Rocha, and Melissa Zitowsky; Supervisory Defendants Gloria Banks, William Desmond, and Mary McCarthy; and Managerial Defendants Sergei Hoteko and Patrick Noonan. See Anderson VIII, 225 F.Supp.2d at 838 n. 2. The United States is the defendant as to the Count V FTCA claim. Ill SEARCH FACTS Resolving all genuine factual disputes and drawing all reasonable inferences in plaintiffs’ favor, the facts assumed to be true for purposes of summary judgment are as follows. A GENERAL SEARCH PROCEDURES International passengers arriving at O’Hare first pass through the Customs Service’s primary inspection area. If the passenger’s luggage or person is to be searched, the passenger is referred to an adjoining area known as “secondary.” A person will also be questioned in secondary and sometimes no further search is conducted there. There are a number of ways in which passengers may be selected for secondary. One is by roving Inspectors who observe and sometimes question passengers passing through the primary area. Another basis would be alerts by narcotics-sniffing canines. A third possible basis is a “lookout” entered into the Treasury Enforcement Communications System by the Customs Passenger Analysis Unit (“PAU”). PAU lookouts are based on pre-arrival review of airline passenger manifests and reservation information for passengers. Information considered includes country of travel, length of trip, hotel information, travel agency used, how far in advance tickets were purchased, prior trips, traveling alone, location of ticket purchase, form of payment, and address of passenger. Being listed as a PAU lookout only gets a passenger to secondary where the passenger is questioned to determine if a personal search is necessary. Another method of selection for secondary is that some passengers were randomly selected for luggage searches. Incident logs, also called negative search reports or IOILs, were kept for the searches of the Summary Judgment Plaintiffs. They are official records maintained in the ordinary course of business. The IOIL should state all the grounds for conducting a personal search, but Customs employees do not always record such information. The Inspector listed on the IOIL as the “primary officer” is the Inspector who requested the secondary search, usually the one who interviewed the passenger, and is normally the Inspector who completes the IOIL. The Inspector listed on the IOIL as the “searching officer” is the Inspector who conducts the search. If the primary officer is of a different gender than the passenger, the primary officer will not be the searching officer as well. A search is to be witnessed by another officer of the same gender, who is listed as “witness” on the IOIL. Plaintiffs point to testimony that the witness’s participation need not be limited to being a passive observer. The Personal Search Handbook in effect during the pertinent time period provided that a witness’s responsibility was to observe and record facts about the search and to protect the searching officer both from physical harm and from false accusations by the passenger. See Def. Exh. 41 § 1(d). The “authorizing officer” listed on the IOIL is a supervisor involved in the search and who generally approves the search, though that approval may be performed cursorily without knowledge of the grounds for the search. During the relevant time period, supervisory approval was not needed to conduct a patdown. Plaintiffs do not dispute that the IOILs for their searches are evidence of what occurred. However, the searching officers generally do not recall the particular search and thus cannot add to what is stated on the IOIL. More importantly, where a plaintiffs testimony contradicts the IOIL for her search, that plaintiffs testimony, to the extent it is favorable to the plaintiff, must be taken as true for purposes of resolving defendants’ summary judgment motion. Cf. Chavez v. Illinois State Police, 251 F.3d 612, 634 (7th Cir.2001). Countries from which illegal narcotics may be smuggled are often referred to as “source” countries or “high risk travel.” Some Inspectors distinguish source countries from “transit” or “conduit” countries, using source country to refer to a country in which the narcotic is grown or produced and transit or conduit to refer to a country through which the narcotic may travel before being smuggled into the United States. Some Inspectors use the term “source” broadly to refer to either a country of origin or a transit or conduit country. Unless otherwise indicated, this opinion will use “source” in this latter broader sense. Plaintiffs point to the testimony of five supervisory or nonsupervisory Customs Inspectors, see PI. 56.1 Facts ¶¶ 221-22, whose testimony supports that virtually any country from which flights arrive at O’Hare is considered a source country. None of these Inspectors could identify a country that would not be considered a source country except that one of them testified that Canada is a country from which narcotics are rarely found on incoming flights. They also testified that, even if they considered a country to be a source country, that alone would not be enough to arouse suspicion, questioning of the passenger about the travel or other issues would be necessary in order to arouse suspicions. Defendants provide no evidence to show that flights from particular countries are more likely to be ones on which narcotics are smuggled. Defendants point to the fact that five of the six Summary Judgment Plaintiffs arrived from Jamaica, which defendants contend is obviously a source country, citing cases which refer to it as having a reputation as a source of narcotics. See, e.g., Saffell v. Crews, 183 F.3d 655, 657 (7th Cir.1999) (“Saffell III”). Such statements in other cases are not a sufficient basis for establishing facts on a summary judgment motion in the present case. Defendants also point to the fact that Germany is not expressly referred to as a source country on the IOIL for Jones. It is true, however, that travel from Germany is a fact mentioned in the statement of reasons for searching Jones. Similarly, in the statement of reasons on Price’s and Absolam’s IOILs, it is mentioned that Jamaica was where those two plaintiffs traveled from, but it is not expressly referred to as a source country or by some other similar description. On Milner’s IOIL statement of reasons, it is not even mentioned that she was traveling from Jamaica. On defendants’ summary judgment motion, it cannot be taken as established, without more, that a passenger traveling from Jamaica is significantly more likely to be smuggling narcotics than a passenger traveling from some other country. B. ALLEN AND PRICE SEARCH FACTS Plaintiffs Allen and Price were traveling together. On June 23, 1997, they arrived at O’Hare on a return flight from Jamaica. Their trip had been for three days. Other than Allen and Price, only one other passenger on their flight was subjected to a personal search, a White male. Including Allen and Price, there were a total of five African-Americans on the flight. Both Allen and Price were directed to secondary by an officer with a dog. The dog did not alert to either of them. Both Allen and Price were strip searched based on the searching officer purportedly feeling a foreign object in the groin area, though nothing foreign was found in that area during either strip search, nor was there any piece of clothing that might have been mistaken for an object. Since nothing was found on either of these plaintiffs that could have been felt to be a foreign object, on defendants’ summary judgment motion, the reasonable inference must be drawn that no foreign object was actually felt on either plaintiff. For Allen, Martinez was the searching officer, Rocha was the witness, and Desmond was the authorizing officer. Corona had entered a PAU lookout which recommended “100% exam & PD [patdown]; Susp Internal.” The reasons stated on the IOIL for the search were: “high risk travel, short trip, appeared to be nervous and bulky. The passenger was also a PAU lookout.” Contrary to the IOIL, Allen was wearing a tightfitting, short-sleeve body suit. Allen truthfully answered questions about how she paid for her trip, how long she stayed, whether she knew anyone in Jamaica, purchases she had made, her travel agency, and the name of her job. She said she worked two jobs and paid cash for her trip. Allen showed receipts for her purchases, provided her work badge and number, and showed her itinerary and ticket. Allen’s luggage was searched with nothing being found. Allen contends she was not nervous, but points only to testimony that she did not show emotion despite being angry during the actual strip search. See PI. 56.1 Resp. ¶ 162 (citing Allen Dep. 76-77). That testimony does not show that Allen did not appear nervous while being questioned. After being questioned, Allen followed instructions to put her hands against the wall and spread her feet apart, and Martinez patted her down. Martinez stated that she felt a pad. There was, however, no pad or any other object or bulk in plaintiffs clothes. In being strip searched, Allen raised up her body suit and pulled down her underwear. Martinez then conducted a visual inspection and did not touch Allen. Allen was then allowed to dress and leave. For Price, Rocha was the primary and searching officer, Martinez was the witness, and Desmond was the authorizing officer. Corona had entered a PAU lookout which recommended “100% exam & PD; Susp Internal/Inserter.” The reasons stated on the IOIL for the search were “PAX [passenger] returned from a 3 day trip from Jamaica. PAX was a PAU lookout, she appeared very nervous and wore loose fitting clothing. When asked how her trip was she almost wanted to cry and said that all she wanted to do was to see her kids. Drivers lie. was issued the day of departing to Cancún.” Price was cooperative during questioning and the search of her luggage, which disclosed nothing suspicious. She explained what her job was and said that she paid cash because she had no credit cards and also because she was reimbursing Allen who had made all the arrangements. Price did not cry nor did she say anything about wanting to see her child. Price was wearing a one-piece bathing suit, loose overall shorts, and nothing else. As did Martinez with Allen, Rocha claimed she felt something in the crotch area during her patdown of Price even though there was nothing there to be felt. Price had to remove her bathing suit, bend over, and twice spread her buttocks while being visually inspected, but not touched. Price was allowed to dress and Desmond was brought in to request that Price consent to an X-ray examination. Price did not want to consent and asked to call her mother, which was allowed, but there was no answer. After being told she would be held for three bowel movements if she did not consent, Price signed the consent form. However, she was then permitted to leave and was not X-rayed. C. ABSOLAM SEARCH FACTS Plaintiff Absolam is a permanent resident of the United States with Jamaican citizenship. On January 4, 1998, she arrived at O’Hare on a flight from Jamaica. She had been there since December 19, 1997. The defendants involved in Abso-lam’s search were primary officer Nathaniel, searching officer Corona, authorizing officer McCarthy, and Czech who listed Absolam as a lookout. Witness Debbie James is not a named defendant. Absolam was subjected to a patdown search in secondary. The grounds listed on the IOIL are: “Drug paraphernalia in PAX’s luggage, and income not commensurate with travel.” The lookout, which was issued on January 14,1997 and scheduled to expire a year later, stated: “Subject may attempt to smuggle cocaine from Jamaica in to the United States. Subject is associated with the Gold Star Jamaican Posse.” Czech states in a declaration that she has no specific recollection of the lookout, but that it had to have been based on “criminal intelligence information” from another law enforcement agency. As of January 1998, Absolam was employed as a nurse’s assistant earning approximately $8.30 per hour. Her mother assisted her with rent and she stayed with relatives while in Jamaica. This would indicate sufficient income for a trip, since she stayed with relatives. However, at the time of the search, no defendant asked her any questions about her income. Plaintiff has never associated with any Jamaican gang nor been involved in any drug smuggling. Since 1992, Absolam generally took trips to Jamaica around Christmastime each year. The majority of passengers on Absolam’s flight were White, but the only two persons searched were Absolam and another African-American woman. Although listed as the primary officer, Nathaniel was the one who questioned Ab-solam in secondary and searched her luggage. Absolam testified that a different Customs Inspector directed her to secondary. In Absolam’s luggage, Nathaniel found a single sheet of rolling paper with two telephone numbers written on it. Nathaniel did not seize that or any other item. Nathaniel requested a patdown search which was approved by McCarthy and assigned to Corona because Nathaniel is male. During the patdown, Corona did not place her hands under Absolam’s clothes. After the patdown, Corona allowed Absolam to leave. D. JONES SEARCH FACTS Plaintiff Jones was searched on September 16,1997 following a flight from Germany to O’Hare. Diez was the searching officer and Banks was the authorizing officer and witness. The IOIL lists the following as the reason for Jones’s search: Passenger stated that she was a lawyer and an actress/Ticket was paid for by MVP company for work at a trade show in Germany/However, Passenger could not provide many details of the company until she produced a brochure during the luggage exam/Newer issued passport (end of July) and even newer issued state ID (August)/First trip outside of U.S./Very loose-fitting over jacket/partial strip to verify pad/Passenger had to be stopped in the searehroom from removing clothing/At the end of the exam, passenger wanted to know who to write to about a “Profile” being on her passport, so she was given the Local PSR contact SCI Banks talked to INS supervisor about the INS inspector making statement to passenger that her name was “Profile.” Jones works primarily as an actress, but also is admitted to practice law. As of 1997, her legal-related work primarily consisted of being appointed as a guardian ad litem. The trip to Germany is the only time she has ever been outside the United States. Jones was traveling with three other colleagues, a White male (David Nis-bet), a White female, and an Asian-American female. None of the others were searched. Like Jones, Nisbet had never before traveled outside the United States; his travel plans were arranged and paid for by MVP Communications; and Nisbet had obtained his passport shortly before departure. Jones was referred to secondary by an Immigration officer who informed her that her passport had been “tagged” because she fit a “profile.” Upon arriving at secondary, Diez immediately began to search her luggage. While searching the luggage, Diez questioned her about her travel. Jones cooperated in all aspects of the questioning and search. Jones truthfully described the purpose of her trip and the travel arrangements. Jones testified that she provided details of her travel arrangement both before and after the brochure was found. She also provided a copy of her itinerary which referred to MVP Communications. The only loose fitting article of clothing was the jacket, which was somewhat big, not “very” loose fitting and which Diez could have asked Jones to remove to see what was underneath. Diez did not attempt to confirm Jones’s description of her travel arrangements and purpose with any of Jones’s companions. Jones informed Diez it was her first trip outside the United States, which could be an explanation for the recently issued passport. After the luggage search, Diez requested a patdown search which Banks approved and witnessed. After the patdown, Diez stated that she felt something between Jones’s legs and requested that Jones lower her pants. Jones was wearing a makeshift sanitary pad consisting of toilet paper. Jones briefly lowered her pants so that Diez could see this and Jones was thereafter permitted to leave. E. MENDENHALL SEARCH FACTS On June 11, 1997, plaintiff Mendenhall was searched following arriving at O’Hare on a flight from Jamaica. She had been in Jamaica for four days. Belcastro is a canine officer who is listed as the primary and searching officer on the IOIL, Zitow-sky is listed as the witness, and Banks was the authorizing officer. However, Mendenhall’s testimony is not consistent with Belcastro being the searching officer and Zitowsky being a witness. Menden-hall saw a female officer with a dog walking around while she waited for her luggage. It must be assumed that this was Belcastro and that Belcastro referred Mendenhall to secondary. According to Mendenhall’s testimony, in secondary a male questioned Mendenhall and searched her luggage. That could not have been Belcastro or Zitowsky, who are both female. He referred Mendenhall for a personal search and Banks approved the personal search and convinced Mendenhall to cooperate in being searched. According to Mendenhall, two women Customs Inspectors went into the search room, neither of whom were the canine officer, but one left before the search actually occurred. Thus the IOIL supports that Bel-castro conducted the search, but Menden-hall’s testimony does not and the parties refer to both Belcastro and Zitowsky as being the searching officer. For purposes of summary judgment it will be assumed that either Belcastro or Zitowsky was the searching officer and that Zitow-sky was the searching officer or witness. It will be considered whether Zitowsky would be liable as the searching officer or as the witness to a search conducted by Belcastro. The IOIL describes the reason for the search as follows: “Passive K-9 alert, high risk travel.” There is no evidence that the decision to search Menden-hall was based on any response during the initial questioning nor based on anything found in Mendenhall’s luggage. It must be assumed that the searching officer was aware the luggage search disclosed no grounds for suspicion. The searching officer patted down Mendenhall. There is no indication on the IOIL that the searching officer felt anything during the patdown. After the patdown, the searching officer asked if Mendenhall was menstruating. Mendenhall responded affirmatively and the searching officer asked that she lower her pants to show the pad. Mendenhall pulled down her pants and underwear to show a pad. Mendenhall saw the dog walk past her. It did not stop by her or perform any other act that defendants contend is a passive alert. No Customs employee stated to Mendenhall during the search that there had been a canine alert. Instead, an employee told her she was randomly selected. On defendants’ summary judgment motion, it must be taken as true that there was no actual canine alert. Since Belcastro is listed on the IOIL, it must also be assumed that whoever the searching officer or witness was, she was aware that a canine had been near Mendenhall without alerting. The only non-African-American woman on Mendenhall’s flight who was searched has the exact same reasons for a search listed on her IOIL. However, that woman was only patted down and not strip searched. The other woman was searched by someone other than Belcastro or Zitow-sky. Banks testified that a canine alert and traveling from Jamaica should only be enough to justify a patdown. Ordinarily, there would have to be more before an inspector would conduct a strip search. F. MILNER SEARCH FACTS On August 27, 1997, plaintiff Milner arrived at O’Hare on a flight from Jamaica. Milner is a permanent resident of the United States and a citizen of Guyana. Milner’s ticket was purchased at Alpha One Travel. The searching officer was Reyther and Banks was the authorizing officer. The witness is not a named defendant. The reasons for the search contained on the IOIL are: “Alpha travel, traveling w friend, but friend stayed behind, stayed at Quality In. Student at Loyola, and a caregiver.” The IOIL incorrectly lists the search as only being a patdown. The IOIL indicates that Reyther was also the searching officer and Milner testified that she was initially questioned by the same person who searched her and at the same place where her luggage was searched. Therefore, it is unclear whether the initial questioning that she testified about occurred in secondary and, if so, how she was routed to secondary. It may have been because a PAU lookout had been issued two days before her return flight and/or because a rover Inspector directed her there. The PAU lookout was entered by Hall and stated: “100% exam for narc/ $$ is recommended. Report occupation in remarks section of inspection results.” Milner purchased her ticket at Alpha One because it is near her house and her friend worked there. Reyther testified that the PAU had informed Inspectors that a number of passengers found with drugs had purchased their tickets there. There is, however, no evidence to show that customers of Alpha One were more likely to have contraband. Also, even if it were true, it would still mean that most Alpha One customers did not have contraband. There would still need to be additional reasons to support a personal search, particularly a strip search. There is no evidence that the Quality Inn was a hotel frequented by narcotics traffickers. Milner returned separate from her friend, but she also flew to Jamaica separate from her friend. Upon deplaning, Milner passed a Customs Inspector with a dog and the dog did not alert to Milner. In secondary, Milner was questioned by Reyther and was cooperative. She showed Reyther her passport and “green card.” Milner provided the information about staying at the Quality Inn and traveling separate from a friend. Milner’s luggage was searched and nothing suspicious was found. Milner was wearing a white see-through blouse and baggy pants. Reyther directed Milner to a room where she was patted down, including under her blouse even though it was a see-through blouse. Reyther patted down Milner’s breasts, but did not reach under her bra. Reyther also patted down Mil-ner’s fully visible stomach. Reyther then directed Milner to lower her pants and thereafter to pull down her underwear, which revealed a soiled pantiliner. Reyther asked if Milner was using a tampon and, after an affirmative response, directed Mil-ner to show her the tampon which Milner did. IV. COUNT III AND COUNT VI SEARCH CLAIMS A APPLICABLE STANDARD OF SUSPICION The same suspicion standards that apply to the Count III Fourth Amendment claims for unlawful searches also apply to the Count VI Fourth Amendment and due process claim that plaintiffs were unlawfully detained during the time they were searched. See Anderson IV, 199 F.R.D. at 246-49, 264-65. Therefore, these two counts will be considered together. As has been discussed or held in ruling on prior motions in this case, current Seventh Circuit case law provides that routine questioning and searching of luggage at the border does not require any level of suspicion. See id. at 255 (citing United States v. Dorsey, 641 F.2d 1213, 1217-18 (7th Cir.1981)). See also Kaniff v. United States, 2002 WL 370210 *9 (N.D.Ill. March 8, 2002). Performing a standard patdown search, requires some level of suspicion that the person has contraband on his or her person, with the level of suspicion required being balanced against the level of indignity imposed on the traveler. See Anderson IV, 199 F.R.D. at 255-56 (citing Saffell III, 183 F.3d at 657; Dorsey, 641 F.2d at 1215-19; Saffell v. Crews, 1998 WL 832653 *1-3 (N.D.Ill. Nov.20, 1998), aff'd in part, rev’d in part on other grounds, Saffell III). See also Kaniff, 2002 WL 370210 at *7; United States v. Brown, 2000 WL 33155619 *3-4 (N.D.Ill.Dec.8, 2000). Compare United States v. Ruimwijk, 148 F.Supp.2d 947, 948-49 (N.D.Ill.2001). But see Bradley v. United States, 299 F.3d 197, 204 n. 8 (3d Cir.2002). Intrusive patdowns and whole or partial strip searches require reasonable suspicion that contraband is secreted under clothing or internally. Anderson IV, 199 F.R.D. at 248-49, 258 (citing inter alia United States v. Montoya de Hernandez, 473 U.S. 531, 105 S.Ct. 3304, 87 L.Ed.2d 381 (1985); Saffell III, 183 F.3d at 658-59; Saffell v. Crews, 1998 WL 142372 *5 (N.D.Ill. March 19, 1998) (“Saffell I”)). See also Kaniff, 2002 WL 370210 at *7. The parties do not contend that Seventh Circuit or Supreme Court precedent as to the standards applicable to the different types of searches has changed since the ruling in Anderson IV. “‘Reasonable suspicion’ is defined as ‘a particularized and objective basis for suspecting the particular person’ of smuggling contraband.” United States v. Johnson, 991 F.2d 1287, 1291 (7th Cir.1993) (quoting Montoya, 473 U.S. at 541, 105 S.Ct. 3304) (quoting United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)). B. SEARCH OF ALLEN Resolving disputed factual issues in her favor, Allen was patted down based on the following. Allen had made a three-day trip to Jamaica and appeared to be nervous. Additionally, Martinez knew that nothing was found in her luggage and it can be inferred that she also knew that a canine had been close to Allen without alerting. Allen was also cooperative in answering Martinez’s questions and provided information about her employment, travel, and purchases, as well as providing purchase receipts, work identification, and a written itinerary. Allen was not traveling alone and no lubricants or stomach medications often used by internal narcotics smugglers had been found in Allen’s luggage. Additionally, before the strip search, Allen had been patted down with no bulges or suspicious objects felt. There was no reasonable suspicion justifying the strip search. Cf. Anderson IV, 199 F.R.D. at 261-62. As to the patdown, a sufficient level of suspicion was also lacking in light of the exculpatory information available prior to the patdown being performed. That is true even if it is assumed, without sufficient support, that Jamaica is a likely source for narcotics smuggling. Because of qualified immunity, however, no damages may be obtained on the Count III or Count VI claims based on a standard pat-down search even if the patdown was based on no suspicion whatsoever. See § IV(K)(1) infra. C. SEARCH OF PRICE Resolving disputed factual issues in her favor, Price was patted down based on the following reasons. She had made a three-day trip to Jamaica for which she paid cash and she had renewed her driver’s license shortly before she left the country. Additionally, Rocha knew that nothing was found in Price’s luggage and it can be inferred that she also knew that a canine had been close to Price without alerting. Price was also cooperative in answering Rocha’s questions and provided information about her cash purchase of the tickets. Price was not traveling alone and no lubricants or stomach medications often used by internal narcotics smugglers had been found in Price’s luggage. Additionally, before the strip search, Price had been patted down with no bulges or suspicious objects felt. There was no reasonable suspicion justifying the strip search. Cf. Anderson IV, 199 F.R.D. at 261-62. There was also an insufficient basis for the standard patdown, but, as is discussed in § IV(K)(1) infra, qualified immunity precludes any damages claim based on the patdown. D. SEARCH OF ABSOLAM Resolving disputed factual issues in her favor, Absolam was patted down by Nathaniel based on the following reasons. Absolam was returning from Jamaica, a PAU lookout indicated she might be a narcotics smuggler, and a rolling paper with telephone numbers was found in her luggage. No other support for being a narcotics smuggler was.found in the luggage. Also, Absolam was not on a short trip to Jamaica. The PAU report and rolling papers would constitute some basis for suspicion. Therefore, there was adequate grounds for the standard patdown. Even if there was an insufficient basis for some level of suspicion, defendants would be entitled to qualified immunity. See § IV(K)(1) infra. Absolam’s Count III and Count VI damages claims will be dismissed. E. SEARCH OF JONES Resolving disputed factual issues in plaintiffs favor, Jones was patted down based on the following reasons. She had a recently issued passport and state ID, was wearing a loose-fitting jacket, and stated she was an actress and lawyer. Additionally, before conducting a patdown, Diez had searched Jones’s luggage and found nothing incriminating. The loose-fitting jacket is not a basis for a patdown because the passenger can instead be asked to remove the jacket. Being an actress and lawyer is not a ground for suspicion, especially since Jones cooperated in answering questions, explained the nature of her trip, and provided brochures corroborating the nature of her trip. Jones also informed Diez it was the first time she had been out of the country, which would explain the new passport. Diez also made no attempt to confirm Jones’s statements by questioning her traveling companions. In light of the other information provided and the failure to find anything suspicious in the luggage, there was no level of suspicion supporting the standard patdown. However, as is discussed in § IV(K)(1) infra, qualified immunity bars any damages claim based on the patdown alone. Before, the strip search of Jones, there was the additional factor that Diez felt something between Jones’s legs. That provided a reasonable suspicion supporting the request to see if there was a pad. Cf. Kaniff, 2002 WL 370210 at *9; Ruimwijk, 148 F.Supp.2d at 949. Moreover, the bulge felt between Jones’s legs would have felt more suspicious than the ordinary sanitary pad since it was a makeshift pad of toilet paper, not the more consistent form and texture of the usual sanitary pad. Furthermore, Jones was only required to briefly lower her pants; Diez did the minimum necessary to confirm what she felt was a sanitary pad. Jones’s Count III and Count VI damages claims will be dismissed. F. SEARCH OF MENDENHALL Resolving disputed factual issues in Mendenhall’s favor, she was patted down based on being on a flight from Jamaica following a four-day trip. Additionally, she was strip searched after responding that she was menstruating. The searching officer would have also been aware that a canine did not alert to Men-denhall and nothing suspicious was found in her luggage. Before the strip search, the searching officer had already patted down Mendenhall and felt nothing suspicious. Simply being on a flight from Jamaica after a relatively short trip does not constitute some suspicion justifying a standard patdown. As is discussed in § rV(K)(l) infra, the damages claim based on a standard patdown is barred by qualified immunity. Being told that a woman is menstruating does not add suspicion justifying a strip search. Mendenhall was strip searched without reasonable suspicion. See Anderson IV, 199 F.R.D. at 261-62. G. SEARCH OF MILNER Resolving disputed factual issues in Milner’s favor, she was searched based on purchasing a ticket from Alpha Travel and returning separately from a friend with whom she had met in Jamaica but had not traveled with on her way to Jamaica. There is no evidence in support of finding that passengers who use Alpha Travel are so frequently smugglers of contraband that that factor alone constitutes some or reasonable suspicion. Before being patted down, Reyther was also aware that a canine had not alerted to Milner, nothing suspicious had been found in her luggage, and Reyther could see through Milner’s blouse. Some suspicion did not exist for a standard patdown, but, as is discussed in § IV(K)(1) infra, any damages claim for a standard patdown is barred by qualified immunity. However, Reyther also reached under Milner’s blouse and patted her directly on the skin of her stomach and on her bra. That would be an. intrusive patdown requiring a higher level of suspicion. See Anderson IV, 199 F.R.D. at 258-59. However, it was not clearly established in 1997 that touching under clothes but over a bra and directly touching the stomach under clothes constituted an intrusive patdown requiring reasonable suspicion. Cf. id. (collecting cases). Therefore, any damages claim based on the patdown is barred by qualified immunity. By the time of the strip search, Reyther also knew that he had patted down Milner and felt nothing suspicious. Reasonable suspicion did not support the strip search of Milner, including asking Milner to remove her tampon even though nothing suspicious had been felt or observed. The foregoing discussion only considers the liability of the searching officer. The liability of the other participants in each search must also be considered. H. LIABILITY OF SUPERVISORY CUSTOMS INSPECTORS As to supervisory liability, it has previously been held in this case: In a Bivens claim ..., defendants cannot be held liable based on respondeat superior. Del Raine v. Williford, 32 F.3d 1024, 1047 (7th Cir.1994). The rule is essentially the same as that for constitutional claims under 42 U.S.C. § 1983. Id. To be hable for a constitutional violation, a supervisory defendant need not have directly participated in the deprivation of rights, but he or she must have been personally involved in the deprivation. Id.; Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir.2001); Chavez, 251 F.3d at 651. “A defendant ‘will be deemed to have sufficient personal responsibility if he directed the conduct causing the constitutional violation, or if it occurred with his knowledge or consent.’ ” Sanville, 266 F.3d at 740 (quoting Chavez, 251 F.3d at 652). “Supervisors who are merely negligent in failing to detect and prevent subordinates’ misconduct are not hable.... The supervisors must know about the conduct and facilitate it, approve it, condone it, or turn a blind eye for fear of what they might see. They must in other words act either knowingly or with deliberate, reckless indifference.” Chavez, 251 F.3d at 651 (quoting Jones v. City of Chicago, 856 F.2d 985, 992-93 (7th Cir.1988)). Thus, where there is a formal pohcy that is unconstitutional, an official will be liable for “formulating and directing” the pohcy. Del Raine, 32 F.3d at 1052 (Manion, J., concurring); Neilis v. Ward, 2000 WL 1372870 *3 (N.D.Ill. Sept.21, 2000); Bolden v. Peters, 1994 WL 695524 *4 (N.D.Ih.Dec.9, 1994). Where there is a custom, practice, or pattern of unconstitutional conduct by subordinates that is not pursuant to a formal pohcy, the supervisor must facilitate, approve, condone, or dehberately ignore the practice in order to be liable. Clinkscales v. Sheahan, 1998 WL 292402 *2 (N.D.Ill. May 19, 1998). Anderson VIII, 225 F.Supp.2d at 859-60. Here, the IOILs are evidence that the authorizing officer approved a strip search on the grounds known to the searching officer. While it may be true that some of the supervisors involved in the searches of the Summary Judgment Plaintiffs approved a particular search without actual knowledge and thus acted negligently at best, no conclusive evidence to that effect has been presented. On defendants’ summary judgment motion, it is a reasonable inference from each IOIL that the supervisor acted knowingly in approving the particular search. To the extent Allen’s, Price’s, Mendenhall’s, and Milner’s Count III and Count VI damages claims remain pending against the searching officer, those claims also remain pending as against the particular supervisor involved in each search, Desmond or Banks. I. LIABILITY OF WITNESSES Allen and Price each had their searches witnessed by a defendant other than the authorizing officer and possibly Mendenhall as well. Plaintiffs contend the witnesses should be liable because they participated in and observed the searches. Additionally, before 1997, the law in this circuit was well established that the “responsibility to intervene applies equally to supervisory and nonsupervisory officers. [Byrd v. Brishke, 466 F.2d 6, 11 (7th Cir.1972).] An officer who is present and fails to intervene to prevent other law enforcement officers from infringing the constitutional rights of citizens is hable under § 1983 if that officer had reason to know: (1) that excessive force was being used, (2) that a citizen has been unjustifiably arrested, or (3) that any constitutional violation has been committed by a law enforcement official; and the officer had a realistic opportunity to intervene to prevent the harm from occurring.” Yang v. Hardin, 37 F.3d 282, 285 (7th Cir.1994), cert. denied, 525 U.S. 1140, 119 S.Ct. 1031, 143 L.Ed.2d 40 (1999). This includes intervening to prevent unlawful searches. Knox v. Wainscott, 2003 WL 21148973 *7 (N.D.Ill. May 14, 2003); Sims ex rel. Sims v. Forehand, 112 F.Supp.2d 1260, 1274-75 (M.D.Ala.2000). The aforementioned duty to intervene applies equally to Bivens actions like the present one as to § 1983 actions. See Del Raine, 32 F.3d at 1047; Anderson VIII, 225 F.Supp.2d at 859-60; Gonzalez v. Babasa, 2003 WL 21196245 *2 (N.D.Ill. May 19, 2003); Avina v. Hosko, 1999 WL 184165 *2 & n. 3 (N.D.Ill. March 25, 1999) On the evidence before the court, unless otherwise indicated, it would be inferred that the witnesses were aware of the same information as the searching officers. Therefore, the witnesses would have been aware of the factual circumstances that did not constitute reasonable suspicion supporting the strip searches. Even with identical knowledge, it would still have to be determined whether the evidence supports that each witness had a realistic opportunity to intervene to stop the strip search. As to Rocha’s witnessing of Martinez searching Allen, it is undisputed that Martinez stated out loud that she felt a pad. Similarly when Martinez witnessed Rocha’s searching of Price, Rocha stated out loud that she felt something. If the witness in each situation did not know the statements were false, those statements would have provided the witness with knowledge that would support reasonable suspicion. Cf. discussion of Jones’s situation in § IV(E) supra. However, Allen was wearing a tight body suit and Price was wearing a bathing suit. As closely observing witnesses, each witness could have seen that these plaintiffs did not have a pad or other bulge that would have been felt. On defendants’ summary judgment motion, that reasonable inference must be drawn. Therefore, it must be taken as true that, as witnesses of the respective searches, Rocha and Martinez were aware of facts that would not constitute reasonable suspicion. It can also be inferred that each witness could have stated to the searching officer that adequate suspicion was lacking and that such a statement would have had a reasonable possibility of preventing each strip search. Allen’s and Price’s remaining Count III and Count VI damage claims will not be dismissed as against each witness. To the extent Mendenhall was searched by Belcastro or another Inspector and Zi-towsky was the witness, it may be inferred that Zitowsky was aware of the same facts as the searching officer, which did not constitute reasonable suspicion supporting a strip search. It is also reasonable to infer that, if Zitowsky had raised an objection, there was a reasonable possibility Mendenhall would not have been strip searched. As to Mendenhall’s remaining Count III and Count VI damage claims, the claim against Zitowsky based on her being a witness will not be dismissed. J.LIABILITY OF PAU DEFENDANTS Corona issued a PAU lookout for Allen and Price and Hall issued one for Milner. Regardless of whether the PAU lookouts were accurate or not, at most they caused these plaintiffs to be referred to secondary. Corona and Hall were not the Inspectors who decided to strip search these plaintiffs, they were not aware of any additional facts that were developed, and they were not present to intervene to prevent the strip searches. The Count III and Count VI claims of Allen and Price against Corona and of Milner against Hall will be dismissed. K.QUALIFIED IMMUNITY 1. STANDARD PATDOWN SEARCHES It was held in Anderson IV, 199 F.R.D. at 256-57, that the some level of suspicion requirement for standard pat-down searches was not clearly established as of the date of the Summary Judgment Plaintiffs’ searches, which occurred between June 11, 1997 and January 4, 1998. Plaintiffs presently contend that the some level of suspicion standard was clearly established as of the pertinent time period because the Customs Service’s own Personal Search Handbook contained a “some or mere suspicion” requirement even if Seventh Circuit caselaw was unsettled. This contention was previously rejected on a motion to reconsider Anderson IV. It was held that “violation of an administrative rule or regulation does not preclude applying qualified immunity where the pertinent constitutional law is not clearly established.” Id. at 265-66 (citing Davis v. Scherer, 468 U.S. 183, 194-96, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984); Stevens v. Umsted, 131 F.3d 697, 707 (7th Cir.1997); Krocka v. Riegler, 958 F.Supp. 1333, 1344-45 (N.D.Ill.1997)). Citing Hope v. Pelzer, 536 U.S. 730, 122 S.Ct. 2508, 2516, 153 L.Ed.2d 666 (2002), plaintiffs contend that Supreme Court precedent now holds that a government body’s own policies can be considered in determining if the law is clearly established. See also Toms v. Taft, 338 F.3d 519, 527 n. 5 (6th Cir.2003); Treats v. Morgan, 308 F.3d 868, 875 (8th Cir.2002); Niziol v. Pasco County District School Board, 240 F.Supp.2d 1194, 1213 (M.D.Fla.2002). In Hope, the Supreme Court considered whether it was clearly established for Alabama Department of Corrections employees that handcuffing a work squad inmate to a hitching post without an opportunity for regular water or bathroom breaks violated the constitutional prohibition against cruel and unusual punishment. The Supreme Court held that existing Eleventh Circuit precedents were close enough to provide fair warning that the above-described handcuffing to a hitching post was unconstitutional. Hope, 122 S.Ct. at 2516-17. The Supreme Court relied on a case holding that it was unconstitutional to punish inmates by handcuffing them to fences for prolonged periods of times. See Gates v. Collier, 501 F.2d 1291, 1306 (5th Cir.1974). The Supreme court also relied on Ort v. White, 813 F.2d 318, 324-26 (11th Cir.1987), which had held it was not unconstitutional to withhold water for a short period of time as a work incentive for a recalcitrant farm squad inmate. That case cautioned that it might or would violate the Constitution if water were withheld as a punishment or if the coercive means reached the point of threatening a recalcitrant inmate’s health. The Supreme Court also noted that it was “relevant” to consider that the Department’s own regulations allowed for use of the hitching post for recalcitrant workers, but that the inmate had to be offered water and bathroom breaks every 15 minutes, a log needed to be kept of these offers, and the inmate was to be permitted to return to work whenever he tells an officer he is ready. In Hope’s situation, this procedure was not followed during his seven hours of being handcuffed to the hitching post. See Hope, 122 S.Ct. at 2517-18. The finding of clearly established law was also “buttressed” by a United States Department of Justice report finding that the provisions of the regulation were consistently ignored and therefore use of the hitching post should be discontinued to avoid continued constitutional violations. See id. at 2518. The present case is distinguishable from Hope. Plaintiffs point to a March 1997 Personal Search Handbook. In its Foreword, the Handbook states in part: This handbook sets forth procedures and guidelines for the conduct of searches of persons and their papers at the border by Customs officers.... * ‡ ‡ ‡ * Each Customs officer must know the limits of Customs authority, and must use this authority judiciously, conscientiously, and courteously. This attachment sets forth Customs policy with respect to this authority in the border search context. * # * * ❖ * This handbook does not limit the search authority of Customs officers. The goal is to assist Customs officers in performing their enforcement duties in a manner that will ensure personal integrity and will also permit officers to perform a professional service for the public. This handbook is not intended to create or confer any rights, privileges, or benefits upon any private person, but is merely for internal guidance. Def. Exh. 41, Foreword. The Handbook is written in a choppy and cursory manner. Chapter 3 concerns patdowns and does not distinguish standard patdowns from intrusive patdowns. Section 3(b) provides in its entirety. b. Some or Mere Suspicion is Required Example: An informer’s tip indicated that a man named Jesse or Jesus Rivera, would be bringing hard narcotics across the border at San Ysidro on a particular day. On that day, officers subjected four men named Rivera to intensive patdown searches. The defendant was the fourth patted down and a large lump was detected in the genital area. The lump was a condom containing 197 grams of cocaine. Held: The officers had some or mere suspicion for the patdown. United States v. Rivera-Marquez, 519 F.2d 1227 (9th Cir.1975). While the courts have not held that ar-ticulable facts (i.e., facts which you can testify to in court) must be present to substantiate “mere” suspicion, the preferred practice is to base any personal search on an objective factor (i.e., known or perceived as distinguished from purely subjective) which can be articulated prior to the commencement of the search. Def. Exh. 41 § 3(b). Hope does not change the general qualified immunity standard. “The question would still ‘be whether a reasonable official in the position of these defendants, considering all relevant sources of guidance to the law, might have thought it reasonably possible that [the Seventh Circuit] or eventually the U.S. Supreme Court would hold’ that his or her challenged conduct was lawful.” Anderson IV, 199 F.R.D. at 257 (quoting Burgess v. Lowery, 201 F.3d 942, 944 (7th Cir.2000)). For purposes of qualified immunity, it is still assumed that the government official is aware of all pertinent precedents. In Hope, Eleventh Circuit precedent was close on point, but not precisely on point. By itself, however, it was probably still enough to clearly establish the unconstitionality of the defendants’ conduct. In any event, the pertinent regulation made it more clear that the challenged conduct was unlawful. The present case is different. As is discussed in Anderson IV, 199 F.R.D. at 257, the then-existing Seventh Circuit and related precedents did not even clearly establish the general standard to be applied to standard patdown searches, whether no suspicion or some suspicion. The Handbook’s statement that a “some or mere suspicion” standard applies to all types of patdowns did not clear up the ambiguity in existing precedents for the Seventh Circuit, especially when the statement was based on a citation to a 22-year-old Ninth Circuit case that also predated Montoya and which does not even contain a holding that a “some or mere suspicion” standard applies to standard patdown searches. The pertinent discussion in Riv-erctr-Marquez reads in its entirety: We find no constitutional flaw in the search. Rivera’s claim that the pat-down search should be examined by “strip search” standards is frivolous. See United States v. Chase, 503 F.2d 571, 574 (9th Cir.1974). And the informer’s tip, including as it did the name of the suspected smuggler as well as the other information justifying particular scrutiny when Rivera crossed the border, clearly supported the kind of “pat-down” used by officers checking for weapons or other contraband at the border. Rivera argues that the statute which allows border searches requires suspicion; and that the officers had none in this case. This argument is frivolous. Rivera misapprehends 19 U.S.C. § 482. See United States v. Storm, 480 F.2d 701, 703-704 (5th Cir.1973). “(T)here is reason and probable cause to search every person entering the United States from a foreign country, by reason of such entry alone.” Witt v. United States, 287 F.2d 389, 391 (9th Cir.), cert. denied, 366 U.S. 950, 81 S.Ct. 1904, 6 L.Ed.2d 1242 (1961); see Klein v. United States, 472 F.2d 847, 849 (9th Cir.1973). We do not decide whether a strip-search occurred when Rivera dropped his trousers. After the lump was discovered, the officers had a “real suspicion” (see Henderson v. United States, 390 F.2d 805, 808 (9th Cir.1967)) that Rivera had concealed contraband in his nether-garments. This suspicion would have justified a strip-search if Rivera was subjected to one. 519 F.2d at 1228. The Anderson IV holding as to qualified immunity regarding standard patdown searches will continue to stand. Since, dining the pertinent time period, it was not clearly established that a standard pat-down search could not be conducted based on no suspicion whatsoever, none of the Summary Judgment Plaintiffs can succeed on Count III or Count VI damages claims based on a standard patdown search. 2. STRIP SEARCHES Defendants contend that they would be entitled to qualified immunity for the remaining damage claims based on strip searches. Defendants contend there was no law establishing that it was unlawful to conduct a partial strip search after feeling objects during a patdown. As to the remaining Count III and Count VI claims of Allen, Price, Mendenhall, and Milner, however, the facts assumed to be true for purposes of summary judgment do not include that any foreign object was felt or observed prior to each plaintiffs strip search. Therefore, that is not a basis for applying qualified immunity. The remaining claims all involve situations where the plaintiff was returning from Jamaica and little else to arouse suspicion. Moreover, as to each of them, it was also known that a canine had not alerted to them and that nothing had been found during a luggage search or patdown. Under those circumstances, a Customs Service employee could not have reasonably believed that reasonable suspicion existed to support a strip search. Defendants are not entitled to qualified immunity as to the remaining Count III and Count VI claims of the Summary Judgment Plaintiffs. See Anderson IV, 199 F.R.D. at 261-62. V. COUNT v. FTCA CLAIMS Count V is an FTCA claim based on defendants’ conduct constituting the torts of false imprisonment, assault, and battery. The United States contends, and plaintiffs do not dispute, that none of these claims can succeed to the extent that the searches were legally justified, that is, there was adequate suspicion for the search. See Kaniff, 2002 WL 870210 at *8 (false imprisonment); Kraushaar v. Flanigan, 45 F.3d 1040, 1049-50 (7th Cir.1995) (assault and battery). To the extent adequate suspicion was lacking, the United States contends willful and wanton conduct is an additional element of each offense that plaintiffs cannot show. Alternatively, defendants contend that their conduct falls within the FTCA’s discretionary function exception. See 28 U.S.C. § 2680(a). A ADEQUATE SUSPICION As is discussed in § IV supra, adequate suspicion did not exist to either pat down or strip search Allen, Price, Mendenhall, and Milner. Therefore, their FTCA claims cannot be dismissed based on the searches being based on adequate suspicion. As to Absolam, adequate suspicion existed to pat her down. See § IV(D) supra. Absolam’s FTCA claim will be dismissed in its entirety. As to Jones, there was not adequate suspicion to pat her down. Therefore, there would not have been adequate suspicion to strip search her if not for the improper patdown. Therefore, her FTCA claim cannot be dismissed based on adequate suspicion for the search. B. WILLFUL AND WANTON CONDUCT Under the FTCA, the United States is hable for the negligent or wrongful conduct of one of its employees acting within the scope of his or her employment “under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 2672. See also id. §§ 1346(b)(1), 2674, 2679-80. Thus, the FTCA incorporates state tort law, in this