Herrera v. Santa Fe Public Schools (41 F. Supp. 3d 1027, 2014)

United States District Court for the District of New Mexico 2014-08-29

Citations

Full opinion text

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on Defendant ASI New Mexico, LLC’s Motion for Summary Judgment on Plaintiffs’ Second Amended Complaint [Doc. 100] and Supporting Memorandum, filed March 3, 2014 (Doc. 182)(“MSJ”). The Court held a hearing on April 22, 2014. The primary issue is whether Defendant ASI New Mexico, LLC can properly be held liable for violations of Plaintiffs Candice Herrera’s, T.H.’s, Ashley Hurtado’s, and Arianna London’s rights under the Fourth Amendment to the Constitution of the United States of America that occurred when the Plaintiffs were subjected to searches before a school dance. The Court will grant the MSJ in part and deny it in part. The Court will grant the MSJ as it relates to the searches of the Plaintiffs’ persons, because ASI New Mexico did not have a policy or practice that caused a violation of the Plaintiffs’ clearly established constitutional rights. The Court will deny the MSJ as it relates to the searches and seizures of the Plaintiffs’ possessions, because ASI New Mexico did not meet its prima facie burden as to those claims. The Court will, in a subsequent Memorandum Opinion and Order, dispose of the Plaintiffs’ state-law claims.

FACTUAL BACKGROUND

The Court will discuss the factual background in multiple parts. First, the Court will discuss Santa Fe Public Schools and ASI New Mexico, their contractual relationship, and their respective responsibilities vis-a-vis security at school events in general. The Court will then discuss the genesis of Santa Fe Public Schools’ search practice and the Pah-Down Guidelines (undated), filed March 20, 2014 (Doc. 193-21), that ASI New Mexico created to reflect its understanding of that practice. Third, the Court will discuss the searches that occurred at the April 16, 2011, Capital High School (“CHS”) prom. Fourth, the Court will discuss each Plaintiffs awareness of Santa Fe Public Schools’ search practice; her search; and her search’s effects on her.

For clarity, the Court must point out a few nomenclature notes. Throughout its discussion of the facts, the Court will use “Santa Fe Schools” to refer to Santa Fe Schools in the colloquial sense of the term — that is, to the school district and to its employees, and not only to Defendants Santa Fe Public Schools Board of Education, Santa Fe Public Schools, Barbara Gudwin, Glenn Wikle, Linda Trujillo, Frank Montano, Steven J. Carillo, Bobbie J. Gutierrez, Melanie Romero, and Robert Stephens (collectively, “the “SFPS Defendants”). Similarly, when the Court describes what Santa Fe Schools and its employees typically did before school dances, the Court will use the terms “policy” and “practice” in their colloquial sense. The Court does not, by these words, implicitly conclude that Santa Fe Schools had a “policy” or a “practice” within the municipal-liability meaning of those terms.” The Court disposed of these issues in its Sealed Memorandum Opinion and Order, filed May 27, 2014 (Doc. 219)(“SFPS Defendants’ MOO”), and does not reopen them in this Sealed Memorandum Opinion and Order. The Court instead uses those words as the parties use them throughout their briefs: to signify that Santa Fe Schools had frequently arranged for particular searches before dances.

1. Santa Fe Schools and ASI New Mexico; Their Contractual Relationship; and Their Respective Responsibilities vis-a-vis Security at School Events in General.

The Plaintiffs’ claims against ASI New Mexico arise from pat-down searches, possession searches, and possession seizures that occurred at the April 16, 2011, CHS prom. See Second Amended Complaint ¶ 135, at 24, filed September 18, 2012 (Doe. 100)(“Complaint”). “Santa Fe High School and Capital High are located in Santa Fe, New Mexico and are in the Santa Fe Public School District (‘SFPS’).” MSJ ¶ 2, at 3 (setting forth this fact). See Complaint ¶¶ 18-20, at 5-6; Response ¶ 2, at 3 (not disputing this fact). “At all times material to Plaintiffs’ claims, ASI was a limited liability company organized under the laws of New Mexico and provided security services to public schools, private companies, and state and local governments.” MSJ ¶ 14, at 5 (setting forth this fact). See Complaint ¶24, at 7 (setting forth this fact); Response ¶ 14, at 3 (not disputing this fact).

“The governing and policy-making body for SFPS is the Board of Education of SFPS (‘Board of Education’).” MSJ ¶ 3, at 4 (setting forth this fact). See N.M. Stat. Ann. § 22-5-4; Complaint ¶¶ 17-18. at 5; Response ¶ 3, at 2 (not disputing this fact). “SFPS is responsible for providing a safe school environment for its school activities as a regular part of its business.” MSJ ¶ 4, at 4 (setting forth this fact). See Deposition of Bobbie J. Gutierrez at 117:25-119:13 (taken March 22, 2012, and April 3, 2012), filed March 3, 2014 (Doc. 182-1)(“ASI New Mexico’s Gutierrez Depo.”); id. at 117:25-119:13; id. at 121:5-12; id. at 227:2-24; id. at 229:6-22; id. at 273:18-274:16; id. at 279:18-280:12; Deposition of Melanie Romero at 100:11-20 (taken March 19, 2012), filed March 3, 2014 (Doc. 182-2)(“ASI New Mexico’s Romero Depo.”); Response ¶ 4, at 2 (not disputing this fact). “At the time of the 2011 Prom, Melanie Romero was the CHS principal.” MSJ ¶ 5, at 4 (setting forth this fact). See Complaint ¶ 20, at 6; ASI New Mexico’s Romero Depo. at 10:6-24; Response ¶ 5, at 2 (not disputing this fact). “Principal Romero had authority to set policies and procedures related to Capital High and Capital High events.” MSJ ¶ 6, at 4 (setting forth this fact). See ASI New Mexico’s Gutierrez Depo. at 123:4-9; id. at 227:2-228:2; ASI New Mexico’s Romero Depo. at 132:7-24; Deposition of Martin “Mark” Archuleta at 122:17-123:6 (taken March 9, 2012, and January 30, 2014), filed March 3, 2014 (Doc. 182-3)(“ASI New Mexico’s Archuleta Depo.”); Response ¶ 6, at 2 (not disputing this fact).

“Before ASI began providing contractual security services to SFPS in 2004, SFPS had its own directly employed security officers and used those security officers to conduct searches of students and provide day-to-day security services.” MSJ ¶ 22, at 7 (setting forth this fact). See ASI New Mexico’s Gutierrez Depo. at 80:22-81:11; id. at 132:1-134:15; Deposition of Stephanie Gurule-Lebya at 7:14-20 (taken December 10, 2014), filed March 3, 2014 (Doc. 182-8)(“ASI New Mexico’s Gurule-Leyba Depo.”); id. at 19:9-25; Response ¶ 22, at 4 (not disputing this fact). “Since 1995, the SFPS Code of Conduct has provided that students can be searched at school or at any school event.” MSJ ¶ 23, at 7 (setting forth this fact). See Volume I of Videotaped Deposition of Bobbie J. Gutierrez at 54:24-55:7 (taken March 22, 2012), filed April 4, 2014 (Doc. 200-1); Deposition of Jennifer Garcia at 8:3-22 (taken May 14, 2012), filed March 3, 2014 (Doc. 182-9)(“ASI New Mexico’s Garcia Depo.”); id. at 25:25-26:13; Response ¶ 23, at 4 (not disputing this fact).

“ASI began providing services for SFPS, including Capital High, in 2004.” MSJ ¶ 15, at 5 (setting forth this fact). See Archuleta Depo. at 133:2-3; id. 134:7-11; Volume I of Deposition of Micah Johnson at 20:14-18 (taken January 16, 2014), filed March 3, 2014 (Doc. 182-5)(“Vol. I ASI New Mexico’s Johnson Depo.”); Response ¶ 15, at 3 (not disputing this fact). See also Response ¶ 15, at 11 (setting forth a similar fact)(citing Vol. I Videotaped Deposition of Bobbie J. Gutierrez at 80:22-24 (taken March 22, 2012), filed March 20, 2014 (Doc. 193-5)(“Vol. I Plaintiffs’ Gutierrez Depo.”)). “ASI provided school security services generally to SFPS, and specifically for the 2011 Capital High prom, based on a publicly bid and awarded contract pursuant to the New Mexico Procurement Code.” MSJ ¶ 9, at 4 (setting forth this fact). See Complaint ¶¶ 24-26, at 7; Affidavit of Micah Johnson ¶¶ 3-4, at 1-2, filed March 3, 2014 (Doc. 181)(“John-son Aff.”); Proposal No. 1-General 2008-09 School Security Services passim (no date provided), filed March 3, 2014 (Doc. 181-1)(“SFPS-ASI New Mexico Proposal”); Santa Fe Public Schools Services Contract passim, (dated August 18, 2010), filed May 3, 2014 (Doc. 181-1); Response ¶ 9, at 2 (not disputing this fact). “SFPS was free to terminate the contract with ASI by providing 30 days written notice prior to the intended date of termination.” MSJ ¶ 10, at 4 (setting forth this fact). See Johnson Aff. ¶4, at 1-2; Santa Fe Public Schools Services Contract at 1; Response ¶ 10, at 3 (not disputing this fact).

ASI’s contract with SFPS for the 2010-2011 school year provided: “This agreement is entered into for the purpose of Contractor providing security services for Santa Fe Public Schools’] two comprehensive high schools This is too include on-site coverage on ... prom____Refer to Proposal No. 1-General 2008-09 Social Security Services for complete details.’ ”

MSJ ¶ 11, at 5 (setting forth this fact)(alterations in original). See Johnson Aff. ¶ 4, at 1-2; Santa Fe Public Schools Services Contract at 1; Response ¶ 11, at 3 (not disputing this fact).

“ASI’s contract with SFPS stated that ‘[t]he Contractor and its directors, officers, agents, and employees are not employees of the District ... as a result of this Agreement.’ ” MSJ ¶ 12, at 5. See Santa Fe Public Schools Services Contract KL, at 2; Response ¶ 12, at 3 (not disputing the fact). See also Response ¶ 16, at 11 (setting forth similar fact). “Bobbie Gutierrez acknowledged that ASI ‘security officers are [ASI New Mexico’s] employees’ [and] not SFPS employees.” Response ¶ 25, at 12 (Vol. I Plaintiffs’ Gutierrez Depo. at 65:25-66:13). See Reply at 25 (not disputing this fact).

“ASI guards could refuse directions of SFPS officials and [e]ould report circumstances of disagreement with SFPS officials’ actions or instructions to ASI management;” it is, however, unclear whether ASI New Mexico guards ever exercised this right to refuse. Response ¶ 17, at 11 (setting forth unmodified version of this fact). See Deposition of Martin “Mark” Archuleta at 86:11-88:3 (dated March 9, 2012), filed March 20, 2014 (Doc. 193-2)(“Vol. I Plaintiffs’ Archuleta Depo.”). ASI New Mexico “maintained the responsibility to investigate ASI security officers’ misconduct and to discipline the officers as appropriate.” Response ¶ 20, at 12. See Yol. I Plaintiffs’ Gutierrez Depo. at 65:25-66:13; id. at 95:23-96:11; Reply at 25 (not disputing this fact). “When a principal had a true concern about a guard she would discuss it with the lead guard and higher ASI officials.” Response ¶ 21, at 12 (setting forth this fact). See Deposition of Melanie Romero at 44:4-45:8 (taken March 19, 2012), filed March 20, 2014 (Doc. 193-17)(“Plaintiffs’ Romero Depo.”); Reply at 25 (not disputing this fact). ‘When the Capital High School principal raised concerns about a guard with ASI management, she would not even necessarily be informed of the specifics of any action ASI would take in response.” Response ¶22, at 12. See Plaintiffs’ Romero Depo. at 61:22-62:2; Reply at 25 (not disputing this fact). “SFPS did not conduct performance reviews of ASI employees.” Response ¶ 25, at 12 (setting forth this fact). See Plaintiffs’ Romero Depo. at 64:19-65:5; Reply at 25 (not disputing this fact).

“SFPS and its administrative personnel determined what security services were needed at SFPS school locations and school-sponsored events and SFPS administrative personnel instructed ASI security officers regarding expected conduct in day-to-day operations”; despite this general instruction, no one at CHS supervised ASI New Mexico officers on a day-to-day basis. MSJ ¶ 16, at 5 (setting forth unmodified version of this fact). See ASI New Mexico’s Gutierrez Depo. at 74:12-75:16; id. at 86:15-87:16; ASI New Mexico’s Romero Depo. at 25:1-14; id. at 26:12-25; id. at 37:19-38:5; id. at 43:25-45:20; id. at 48:3-11; id. at 68:19-69:7; SFPS-ASI New Mexico Proposal at 2; Vol. I ASI New Mexico’s Johnson Depo. at 71:2-11; Deposition of Michael Hagele at 13:24-14:4 (taken May 7, 2012), filed March 3, 2014 (Doc. 182-5)(“ASI New Mexico’s Hagele Depo.”); id. at 2-1:16-22:5; id. at 23:9-18; id. at 25:4-26:2; id. at 56:11-57:11; Plaintiffs’ Romero Depo. at 68:13-69:12 See also Response ¶ 18, at 11 (“SFPS did not supervise the day-today activities of the ASI guards.” (citing Plaintiffs’ Romero Depo. at 68:13-69:12)). “At Capital High School, the primary direction SFPS gives to ASI occurs at a meeting at the beginning of the year and during quarterly meetings with ASI’s supervisory personnel and does not occur on a daily basis.” Response ¶ 19, at 11-12 (setting forth this fact). See Plaintiffs’ Romero Depo. at 42:13-18; id. at 44:4-45:8.

“SFPS set qualifications that ASI security officers had to meet before they could be assigned to work at the schools”; Santa Fe Schools did not, however, independently verify whether the guards were trained in accordance with contractual requirements. MSJ ¶ 17, at 10 (setting forth unmodified version of this fact). See SFPS-ASI New Mexico Proposal at 3; Vol. I Plaintiffs’ Gutierrez Depo. at 97:7-17. “On more than one occasion, SFPS administrators required that ASI reassign a specific security officer and not use that security officer to provide any services to SFPS and its schools.” MSJ ¶ 18, at 6; Johnson Aff. ¶ 7, at 2. See ASI New Mexico’s Gutierrez Depo. at 61:17-63:12; ASI New Mexico’s Hagele Depo. at 39:10-40:11. “In providing security services under its contract with SFPS, ASI was required to enforce SFPS’s official Code of Conduct for its high schools and follow post orders for each high school as established or approved by SFPS administrative personnel.” MSJ ¶ 19, at 6 (setting forth this fact). See ASI New Mexico’s Romero Depo. at 48:3-15; ASI New Mexico’s Archuleta Depo. at 54:16-58:5; id. at 176:23-177:9; Santa Fe High School Post Orders passim (no date provided), filed March 3, 2014 (Doc. 182-4); Deposition of Daniel Aguilar at 50:1-15 (taken March 8, 2012), filed March 3, 2014 (Doc. 182-7)(“ASI New Mexico’s Aguilar Depo.”); Response ¶ 19, at 3 (not disputing this fact). ASI New Mexico also maintained its own policies and procedures for providing security for Santa Fe Schools that reflected Santa Fe Schools’ expectations. See Response ¶ 19, at 3 (setting forth unmodified version of this fact); Pah-Down Guidelines passim; Standard Operating Procedures passim (undated), filed March 20, 2014 (Doc. 193— 21); SOP for Pat Downs passim (undated), filed March 20, 2014 (Doc. 193-22); SOP for Conducting a Search (undated), filed March 20, 2014 (Doc. 193-23).

SFPS administration established performance criteria regarding security officer interactions with students, including criteria for when pat-down searches could be performed, provided a room to be used as a security office at Capital High, and designated instrumentalities that ASI security officers could not use at the schools by prohibiting the use of weapons of any sort, including hand-

cuffs, repelling liquid sprays, or batons. MSJ ¶20, at 6 (setting forth this fact). See ASI New Mexico’s Gutierrez Depo. at 89:16-90:20; ASI New Mexico’s Romero Depo. at 43:20-45:12; id. at 52:16:54:2; id. at 234:15-235:4; ASI New Mexico’s Archuleta Depo. at 64:25-66:3; SFPS-ASI New Mexico Proposal at 3; Vol. I ASI New Mexico’s Johnson Depo. at 114:3-12; ASI New Mexico’s Hagele Depo. at 24:19-24; id. at 42:19-43:17; Response ¶ 20, at 4 (not disputing this fact). “In providing security services under its contract with SFPS, the role of ASI security officers was to be a presence, to observe and report occurrences to school administration, and to provide services or assistance as determined appropriate, and as requested by, SFPS and its administrative personnel.” MSJ ¶ 21, at 6-7 (setting forth this fact). See ASI New Mexico’s Gutierrez Depo. at 86:15-89:10; id. at 95:7-22; ASI New Mexico’s Romero Depo. at 68:13-69:7; ASI New Mexico’s Archuleta Depo. at 51:20-52:2; id. at 54:20-55:19; Vol. I ASI New Mexico’s Johnson Depo. at 71:2-11; id. at 119:7-14; ASI New Mexico’s Aguilar Depo. at 40:22-25; id. at 50:9-25; Response ¶ 21, at 4 (not disputing this fact).

2. The Genesis of the Pat-Down Practice; ASI New Mexico’s Pat-Down Guidelines.

“Before ASI began providing security services for SFPS, Susan Lujan was instructed on how to perform pat-down searches on students while she was working at Capshaw Middle School and performed pat-down searches on students while she was an assistant principal or principal at Capshaw Middle School.” MSJ ¶24, at 7 (setting forth this fact). See Deposition of Susan Lujan at 14:1— 15:25 (taken April 20, 2012), filed March 4, 2014 (Doc. 182-10)(“ASI New Mexico’s Lujan Depo.”); id. at 72:22-74:3; id. at 190:7-194:5; Response ¶24, at 4. “At least as of 2003, and before ASI began providing security services for SFPS in 2004, SFPS had required that all students attending the annual proms at its high schools undergo pat-down searches by security officers.” MSJ ¶25, at 7 (setting forth this fact). See ASI New Mexico’s Romero Depo. at 10:3-22; id. at 53:9-54:2; id. at 107:1-12; id. at 138:19-139:8; ASI New Mexico’s Archuleta Depo. at 133:2-3; id. at 134:7-11; Johnson Aff. ¶ 8, at 2; Vol. I ASI New Mexico’s Johnson Depo. at 20:14-18; id. at 124:20-25; Deposition of Rose Lucero at 28:19-29:24 (taken May 15, 2012), filed March 3, 2014 (Doc. 182-11)(“ASI New Mexico’s Lucero Depo.”); id. at 43:12-44:4; Response ¶ 25, at 4 (not disputing this fact).

“SFPS administration established the practice of performing pat-down searches on all students attending prom or other afterschool events at Santa Fe High School or Capital High.” MSJ ¶26, at 8 (setting forth this fact). See ASI New Mexico’s Gutierrez Depo. at 123:4-9; ASI New Mexico’s Romero Depo. at 52:16-54:2; Johnson Aff. ¶8, at 2; Vol. I ASI New Mexico’s Johnson Depo. at 84:10-22; id. at 89:14-22; id. at 124:20-25. “At the beginning of its contract with ASI, SFPS and then-Superintendent Rendon instructed ASI that pat-down searches were to be conducted of all students entering SFPS dances.” Response ¶26, at 12 (setting forth this fact). See Vol. II Plaintiffs’ Archuleta Depo. at 168:2-169:8; id. at 182:2-11; Vol. I Plaintiffs’ Johnson Depo. at 84:10-85:12; id. at 89:12-22; Reply at 24-25 (not disputing this fact).

“Based on SFPS’s directive, ASI representatives understood that pat-down searches had long been part of SFPS’s standard search practices and that ASI was expected to continue those practices.” Response ¶27, at 12 (setting forth this fact). See Vol. I Plaintiffs’ Johnson Depo. at 84:10-16; id. at 124:20-25; id. at 130:21-131:8; Vol. I Plaintiffs’ Archuleta Depo. at 118:21-25; Vol. II Plaintiffs’ Archuleta Depo. at 169:3-8; Reply at 24-25 (not disputing this fact). “ASI officials agreed that SFPS’s blanket pat-down rule should be applied at SFPS proms.” Response ¶ 28, at 12 (setting forth this fact). See Vol. I Plaintiffs’ Archuleta Depo. at 118:6-20; Reply at 24-25 (not disputing this fact).

“ASI trained its employees to follow the written ‘Pat-Down Guidelines’ when performing searches at SFPS events.” Response ¶ 29, at 13 (setting forth this fact). See Vol. I Plaintiffs’ Johnson Depo. at 73:18-25; Reply at 24-25 .(not disputing this fact). “The Pat Down Guidelines were created by ASI for the school setting, but not necessarily for SFPS.” Response ¶ 30, at 13. See Vol. II Plaintiffs’ Gutierrez Depo. at 214:24-215:4. “The Pat Down Guidelines require bra searches of female subjects in which the front of the bra is pulled away from the body.” Response ¶ 31, at 13. See Pat-Down Guidelines at 1; Reply ¶¶ 31-33, 42, & 52, at 25-26 (not disputing this fact). “The ASI guard who conducted the pat-downs on Plaintiffs, Rebecca Reyes, interpreted the bra pulling instruction in the Pat Down Guidelines as requiring her to have students ‘grab their front bra and shake the bra.’ ” Response ¶ 32, at 13 (citing Statement of Cpl. Rebecca Reyes at 1 (no date provided), filed March 20, 2014 (Doc. 193-26)); Reply ¶¶ 31-33, 42, & 52, at 25-26 (not disputing this fact). “The Pat Down Guidelines indicate that it is ‘important to be vigilant’ and state that students have hidden contraband on ‘the inside of their legs.’ ” Response ¶ 33, at 13 (quoting Pat-Down Guidelines at 1). See Reply ¶¶ 31-33, 42, & 52, at 25-26 (not disputing this fact).

“The principals of Capital High School and Santa Fe High School reviewed the written Pat Down Guidelines.” Response ¶ 34, at 13 (setting forth this fact). See Vol. II Plaintiffs’ Gutierrez Depo. at 213:13-214:11; id. at 215:5-9; Reply at 24-25 (not disputing this fact). “The Pat Down Guidelines are consistent with the training SFPS administrators received regarding SFPS’s pat-down procedure.” Response ¶ 35, at 13 (setting forth this fact). See Vol. II Plaintiffs’ Gutierrez Depo. at 216:16-217:4; Reply at 24-25 (not disputing this fact). “Superintendent Gutierrez has no objection to any aspect of the Pat Down Guidelines.” Response ¶ 36, at 13 (setting forth this fact). See Vol. II Plaintiffs’ Gutierrez Depo. at 217:5-14; Reply at 24-25 (not disputing this fact). “SFPS officials reviewed and were familiar with ASI’s pat-down methods.” Response ¶ 37, at 13 (setting forth this fact). See Plaintiffs’ Romero Depo. at 48:16-49:19; Reply at 24-25 (not disputing this fact). “ASI trained SFPS officials on providing security in the school setting, including how to conduct pat-downs.” Response ¶ 38, at 13 (setting forth this fact). See Plaintiffs’ Romero Depo. at 50:2-9; id. at 128:19-129:15; id. at 166:12-18. “ASI educated SFPS officials on necessary security measures and procedures.” Response ¶ 39, at 13. See Vol. II Plaintiffs’ Gutierrez Depo. at 225:11-226:9. “ASI participated in a collaborative manner in the amending of post orders that defined the methods of providing security at the various school sites.” Response ¶40, at 14 (setting forth this fact). See Vol. I Plaintiffs’ Archuleta Depo. at ' 55:20-56:22. “The same search procedures, which included pat-downs of all students, were followed at Santa Fe High School and Capital High School proms every year for at least sixteen consecutive proms.” Response ¶41, at 14 (setting forth this fact). See Vol. II Plaintiffs’ Archuleta Depo. at 168:2-169:8; id. at 244:2-20; Plaintiffs’ Romero Depo. at 53:9-54:2; id. at 138:19-139:8; Deposition of Michael Hagele at 75:5-12 (taken May 17, 2012), filed March 20, 2014 (Doc. 193-7)(“Plaintiffs’ Hagele Depo.”); id. at 77:6-16; id. at 78:6-16; id. at 86:22-87:5; Reply at 24-25 (not disputing this fact) “Bra searches of female students were part of the SFPS school dance standard pat-down search practice.” Response ¶ 42, at 14 (setting forth this fact). See Plaintiffs’ Lucero Depo. at 28:19-25; id. at 35:6-12; Vol. I Plaintiffs’ Reyes Depo. at 60:6-61:22; id. at 62:1-13; Reply ¶¶ 31-33, 42, & 52, at 25 (not disputing this fact).

3. The Searches Conducted at the 2011 CHS Prom.

At the time of the 2011 prom, and during prior years when ASI was contracted to provide security services for SFPS, the two high schools in SFPSCapital High and Santa Fe High School-had ASI security guards perform pat-down searches of all attendees at proms and similar events, such as homecoming or other dances.

MSJ ¶ 27, at 8 (setting forth this fact). See ASI New Mexico’s Romero Depo. at 53:5-54:23; id. at 138:19-139:8; id. at 235:16-22; ASI New Mexico’s Archuleta Depo. at 45:6-7; id. at 133:2-16; id. at 134:7-11; Vol. I ASI New Mexico’s Johnson Depo. at 130:21-131:2; Deposition of Cynthia Clarke, Ph.D. at 34:1-16 (taken May 13, 2012), filed March 3, 2014 (Doc. 182-12)(“ASI New Mexico’s Clarke Depo.”); id. at 37:20-38:5. Response ¶ 27, at 4 (stating that this fact is undisputed). “ASI and SFPS worked cooperatively to complete the searches of students with ASI guards and school officials both being actively engaged in conducting various elements of the searches.” Response ¶ 47, at 14-15. See Plaintiffs’ Aguilar Depo. at 120:21-121:7; id. at 136:1-7; Reply at 24-25 (not disputing this fact).

“The 2011 Capital High prom was a school-sponsored event.” MSJ ¶ 7, at 4 (setting forth this fact). See Complaint ¶¶ 27-28, at 8; Response ¶ 7, at 2 (not disputing this fact). “The 2011 prom was held off Capital High premises at the Santa Fe Convention Center.” MSJ ¶ 8, at 4. See Complaint ¶ 3, at 2; id. ¶ 27, at 8; Response ¶ 8, at 2 (not disputing this fact). “ASI directly employed the security officers who provided security services at the 2011 Capital High prom.” MSJ ¶ 13, at 5 (setting forth this fact). See Santa Fe Public Schools Services Contract ¶ L, at 2; Response ¶ 13, at 3 (not disputing this fact). “In preparation for a school-sponsored special event, the principal of the high school sponsoring the event would typically instruct ASI regarding the implementation of SFPS’s customary search practices at the event.” Response ¶ 43, at 14 (setting forth this fact). See Yol. II Plaintiffs’ Archuleta Depo. at 168:11-14; Plaintiffs’ Romero Depo. at 94:6-95:8; id. at 96:7-21; id. at 97:9-17; Reply at 24-25 (not disputing this fact).

“Principal Romero directed ASI to perform standard pat-down searches of all attendees of the Capital High prom on April 16, 2011,” MSJ ¶28, at 8 (setting forth this fact); that is, “the same pat-downs, wanding, and possession searches that were part of SFPS’s customary practice,” Response ¶ 45, at 14 (setting forth this fact). See ASI New Mexico’s Romero Depo. at 130:17-132:20; id. at 137:18-139:24; Affidavit of Melanie Romero ¶ 3, at 1 (executed November 12, 2012), filed November 13, 2012; Response ¶28, at 4 (not disputing this fact). “Principal Romero directed that the pat-down searches for the 2011 Capital High prom be performed in the lobby area of the Santa Fe Convention Center with separate lines for males and females and” played a role in assigning certain responsibilities. MSJ ¶ 33, at 5 (setting forth this fact). See ASI New Mexico’s Gutierrez Depo. at 227:2-17; ASI New Mexico’s Romero Depo. at 130:17-132:24; id. at 139:9-140:8; id. at 165:13-24; -ASI New Mexico’s Lucero Depo. at 47:25-48:9; ASI New Mexico’s Clarke Depo. at 81:14-25. “Principal Romero directed that ASI perform the pat-down searches at the 2011 Capital High prom on all attendees in a manner consistent with established SFPS past practices.” MSJ ¶ 34, at 10 (setting forth this fact). See ASI New Mexico’s Romero Depo. at 137:18-139:24; Johnson Aff. ¶ 8, at 2; Vol. I Johnson Depo. at 106:6-15; Romero Aff. ¶¶ 2-4, at 1-2; id. ¶ 8, at 2; Response ¶ 34, • at 5 (not disputing this fact). “Principal Romero was responsible for ensuring that both school personnel and ASI security officers at the 2011 Capital High prom followed proper search protocols.” MSJ ¶ 35, at 10 (setting forth this fact). See ASI New Mexico’s Romero Depo. at 139:9-24; Romero Aff. ¶ 8, at 2; id. ¶ 11, at 3; id. ¶ 14, at 3. “Principal Romero had the power to intervene and stop ASI security officers from performing pat-down searches at the 2011 Capital High prom in a manner that was inconsistent with SFPS protocol, past practices, or otherwise improper in her judgment.” MSJ ¶36, at 10 (setting forth this fact). See ASI New Mexico’s Romero Depo. at 236:16-240:5; Romero Aff. ¶ 11, at 3; Response ¶ 36, at 5 (not disputing this fact). “At the Capital High School prom, the highest ranking ASI official, who was present, understood that it was his and ASI’s lead guard’s responsibility for ensuring that all of the ASI staff were meeting then-expectations and fulfilling their job responsibilities.” Response ¶46, at 14 (setting forth this fact). See Vol. II Archuleta Depo. at 173:21-174:3; Plaintiffs’ Aguilar Depo. at 104:12-105:14; Reply ¶ 46, at 25 (not disputing this fact). “ASI performed pat-down searches on all attendees of the 2011 Capital High prom because Principal Romero directed it to do so.” MSJ ¶ 37, at 10 (setting forth this fact). See ASI New Mexico’s Romero Depo. at 132:7-20; Vol. I ASI New Mexico’s Johnson Depo. at 84:10-85:15; id. at 89:14-22; id. at 106:6-15; Romero Aff. ¶ 2, at 1; id. ¶ 6, at 2; id. ¶ 8, at 2. “Principal Romero asked ASI to perform pat-down searches of each of the attendees of the 2011 Capital High prom for the health, safety, and welfare of all attendees at the prom, and ASI believed the searches helped promote a safe prom experience for attendees.” MSJ ¶ 45, at 12 (setting forth this fact). See ASI New Mexico’s Archuleta Depo. at 112:3-23; id. 117:9-19; id. 126:14-127:8; Romero Aff. ¶ 3, at 2.

“Female ASI security officers, Rebecca Reyes and Sandra Vigil, performed the pat-down searches on female attendees of the 2011 Capital High prom after the attendees entered the Santa Fe Convention Center.” MSJ ¶ 29, at 8 (setting forth'this fact). See Complaint ¶ 27, at 8; id. ¶ 40, at 9; Romero Aff. ¶ 12, at 3; Deposition of Candice Herrera at 114:16-115:14 (taken July 27, 2012), filed March 3, 2014 (Doc. 182-13)(“ASI New Mexico’s C. Herrera Depo.”); Videotaped Deposition of Tiffany Herrera at 58:16-23 (taken August 12, 2012), filed March 3, 2014 (Doc. 182-14)(“ASI New Mexico’s T. -Herrera Depo.”); Deposition of Ashley Hurtado at 115:23-116:9 (taken August 13, 2012), filed March 3, 2014 (Doc. 182-14)(“ASI New Mexico’s Hurtado Depo.”); Deposition of Arianna London at 118:11-22 (taken August 24, 2012), filed March 3, 2014 (Doc. 182-16)(“ASI New Mexico’s London Depo.”); id. at 119:22-120:19; Vol. I Deposition of Rebecca Reyes at 85:19-21 (taken May 8, 2012), filed March 3, 2014 (Doc. 182-17)(‘Vol. I ASI New Mexico’s Reyes Depo.”); Deposition of Sandra Vigil at 46:21-47:2 (taken July 24, 2012), filed March 3, 2014 (Doc. 182-18)(“ASI New Mexico’s Vigil Depo.”); Response ¶ 29, at 8 (stating that this fact is “[ujndisputed”). Reyes and “Vigil also performed wand searches.” Response ¶ 30, at 4 (citing Plaintiffs’ Aguilar Depo. at 136:l-7). “Reyes was instructed by the lead guard at the 2011 Capital High School prom to conduct pat-downs on students entering the prom.” Response ¶55, at 15 (setting forth this fact). See Vol. I Plaintiffs’ Reyes Depo. at 62:25-64:9; Reply passim (not responding to this fact). “At the time of the Capital prom, Rebecca Reyes was on-duty and had been assigned to conduct security at the 2011 Capital High School prom along with a host of other ASI security personnel.” Response ¶ 56, at 16 (setting forth this fact). See Plaintiffs’ Aguilar Depo. at 175:14-176:9; Reply at 24-25 (not disputing this fact). “Rebecca Reyes knew it was inappropriate to touch students in the breast area.”. Response ¶ 58, at 16 (setting forth this fact). See Vol. I Plaintiffs’ Reyes Depo. at 108:5-15; Reply ¶ 58, at 30 (not disputing this fact). “Reyes admits she patted down bare arms, had students pull their bras away from their bodies and shake them, and conducted the pat-downs with her palms open facing toward the student.” Response ¶ 59, at 16 (setting forth this fact). See Vol. I Plaintiffs’ Reyes Depo. at 59:5-25; id. at 60:14-61:7; id. at 73:14-21; Reyes Statement at l. “Reyes acknowledged that conducting a pat-down of bare arms in search of contraband was ‘stupid, because, you know, you can see their bare skin. There’s nothing there.’ ” Response ¶ 60, at 17 (setting forth this fact)(quoting Vol. I Plaintiffs’ Reyes Depo. at 71:24-72:8).

“SFPS personnel, including Principal Romero, worked alongside ASI security officers in performing searches at the 2011 Capital High.prom. Rose Lucero, the athletic department secretary at Capital High, wanded the female attendees. Other Capital High and/or SFPS personnel, along with Principal Romero, searched female attendees’ bags and purses.” MSJ ¶ 30, at 9 (setting forth these facts). See ASI New Mexico’s Romero Depo. at 134:23-135:1; id. at 139:18-141:23; id. at 142:19-22; id. at 145:14-20; id. at 146:24-147:3; id. at 149:16-21; id. at 151:3-11; Electronic Mail Transmission from Melanie Romero to Bobbie Gutierrez (dated May 23, 2011), filed March 3, 2014 (Doc. 182-2); ASI New Mexico’s Lucero Depo. at 9:1-12; id. at 54:7-10; id. at 54:22-25; ASI New Mexico’s C. Herrera Depo. at 148:6-19. “Female students’ bras were .pulled and shaken or otherwise searched at the 2011 Capital High School prom as part of the pat-down search.” Response ¶ 52, at 15 (setting forth this fact). See Vol. I Plaintiffs’ Reyes Depo. at 60:6-61:22; id. at 62:L-13; id. at 114:24-115:9; Plaintiffs’ Lucero Depo. at 28:19-25; id. at 58:16-19; id. at 59:3-9; id. at 64:22-24; id. at 130:8-23; id. at 131:6-12; Vol. II Plaintiffs’ Gutierrez Depo. at 246:14-21; Plaintiffs’ Aguilar Depo. at 167:11-16; Reply ¶ 52, at 25 (not disputing this fact).

The process to be followed by SFPS personnel or ASI security officers who found drugs, alcohol, or contraband in an attendee’s possession while conducting searches at the 2011 Capital High prom was to notify Principal Romero or, if she was not nearby, to notify the nearest SFPS administrator and provide further assistance if, and as, requested.

MSJ ¶ 31, at 9 (setting forth this fact). See ASI New Mexico’s Romero Depo. at 104:2-14; ASI New Mexico’s Archuleta Depo. at 199:9-17; ASI New Mexico’s Aguilar Depo. at 146:18-147:5; Deposition of Richard Padilla at 25:6-26:6 (taken May 15, 2012), filed March 3, 2014 (Doc. 182-19)(“ASI New Mexico’s Padilla Depo.”); Response ¶ 31, at 4 (not disputing this fact). “The process to be followed by ASI security officers in the event that any attendee refused to undergo a pat-down search was to escort that individual to a school official who would then take care of the situation.” MSJ ¶ 32, at 9 (setting forth this fact). See ASI New Mexico’s Archuleta Depo. at 187:4-188:3; Response ¶ 32, at 5 (stating that this fact is “[u]ndisputed”).

“ASI’s Policy Manual contained no policy establishing or requiring that, as a matter of standard ASI procedures, ASI security officers perform pat-down searches on all attendees of school events at which ASI provided security services.” MSJ ¶ 38, at 10 (setting forth this fact). See ASI New Mexico’s Archuleta Depo. at 64:25-65:13; ASI New Mexico’s Aguilar Depo. at 44:10-16; Policy Manual for Associated Security Industries (no date provided), filed March 3, 2014 (Doc. 181-1)(“ASI Policy Manual”); Response ¶ 38, at 5 (not disputing this fact). “ASI had no policy or pat-down guideline of its own that directed ASI security officers to touch the breasts or breast area, touch bare or exposed skin, or directly touch middle, upper or inner thighs as part of a standard pat-down search.” MSJ ¶ 39, at 10 (setting forth this fact). See Archuleta Depo. at 138:2-139:8; Standard Opporating [sic] Procedures at 1 (no date provided), filed March 3, 2014 (Doc. 1825-4); SOP for Pat Downs at 1 (no date provided), filed March 3, 2014 (Doc. 182-4); SOP for Conducting a Search at 1 (undated), filed March 3, 23014 (Doc. 182-4); Pah-Down Guidelines at l.

“ASI neither received, nor followed, any policy or guideline from SFPS that directed ASI security officers to touch the breasts or breast area, touch bare or exposed skin, or directly touch middle, upper or inner thighs as part of a standard pat-down search.” MSJ ¶ 40, at 10-11 (setting forth this fact). See ASI New Mexico’s Archuleta Depo. at Depo. at 138:2-139:8; id. at 142:18-143:7; id. at 144:6-145:14; ASI New Mexico Policy Manual passim; Response ¶40, at 5 (not disputing this fact). “ASI security officers, like school employees, performed searches on students only when specifically authorized or requested to do so by SFPS administrative personnel and sometimes SFPS administrative personnel performed the pat-down searches on students at the schools.” MSJ ¶ 41, at 11. See ASI New Mexico’s Romero Depo. at 55:21-56:22; ASI New Mexico’s Archuleta Depo. at 64:25-66:3; Vol. I ASI New Mexico’s Johnson Depo. at 114:3-12; id. at 119:7-14; ASI New Mexico’s Hagele Depo. at 43:18-44:3; id. at 45:7-46:3; ASI New Mexico’s Aguilar Depo. at 44:10-16; id. at 45:23-46:3; ASI New Mexico’s Lujan Depo. at 14:1-15:2; id. at 72:22-74:3; id. at 75:4-12; ASI New Mexico’s Padilla Depo. at 22:ll-20.

The standard pat-down procedure ASI security officers were to follow in performing pat-down searches at the 2011 Capital High prom instructed ASI security officers not to pat-down on bare skin, to keep their palms flat, to not “cup” their hands, to use the back of their hands in a light patting motion, and that no pat-downs should ever be done in the groin and breast areas.

MSJ ¶ 42, at 11 (setting forth this fact). See Pat-Down Guidelines passim.

Both SFPS administration and ASI supervisory employees believe that pat-down searches of all attendees of school dances, homecoming and similar school events, in general, and at the prom, in particular, were reasonably required to exclude drugs, alcohol, [and] weapons ... from the prom and to dissuade attendees from taking such things to the prom.

MSJ ¶43, at 11. (setting forth unmodified version of this fact). See ASI New Mexico’s Romero Depo. at 101:10-102:5; id. at 102:18-104:14; id. at 105:3-106:6; ASI New Mexico’s Archuleta Depo. at 112:3— 23; id. at 115:18-116:19; id. at 126:14-127:8; id. at 130:11-15; id. at 130:24-132:3; Romero Aff. ¶¶ 3-4, at 1-2. “Principal Romero and others believed it was reasonable and necessary to perform pat-down searches of all prom attendees because there is a history of students and event attendees hiding banned items to take those items into events.” MSJ ¶ 44, at 11 (setting forth this fact). See ASI New Mexico’s Romero Depo. at 101:10-104:1; id. at 168:18-169:8; Archuleta Depo. at 112:3-23; id. at 113:7-21; id. at 115:14-116:19; Clarke Depo. at 33:5-25; id. at 68:13-69:24; id. at 80:9-20; id. at 106:17-108:16; Romero Aff. ¶ 3, at l.

“The Superintendent of SFPS did not believe it was necessary to pat-down every student entering prom.” Response ¶ 49, at 15 (setting forth this fact). See Vol. II Plaintiffs’ Gutierrez Depo. at 275:11-278:11; Reply ¶¶ 49-51, at 26 (not disputing this fact). “The Superintendent of SFPS admitted that conducting pat-down searches of students only after a wand alerted would be a sufficient and effective procedure for SFPS proms.” Response ¶ 50, at 15 (setting forth this fact). See Vol. I Plaintiffs’ Gutierrez Depo. at 195:13-196:1; Reply ¶¶ 49-51, at 26 (not disputing this fact). “Principal Romero acknowledged that SFPS search protocol of pat-downs, wanding, and bag searches was not always effective in excluding drugs and alcohol from the dances.” Response ¶ 51, at 15 (setting forth this fact). See Plaintiffs’ Romero Depo. at 102:19-24; Reply ¶¶ 49-51, at 26 (not disputing this fact).

4. The Plaintiffs’ Knowledge of Santa Fe Schools’ Search Policy; Their Searches; The Searches’ Effects.

“Students entering the 2011 Capital High School prona were subjected to pat-down searches without any individualized suspicion.” Response ¶48, at 15 (setting forth this fact). See Vol. II Plaintiffs’ Reyes Depo. at 48:9-21; Response passim (not responding to this fact). “Each of the four individual Plaintiffs was subjected to an intrusive pat-down search at the Capital High School prom.” Response ¶ 1, at 9 (setting forth this fact). See Reply at 24 (not disputing this fact). “Principal Romero did not have individualized reasonable suspicion to search Plaintiffs at the 2011 Capital High School Prom.” Response ¶ 14, at 11 (setting forth this fact). See Plaintiffs’ Romero Depo. at 168:23-170:21; id. at 172:4-11; id. at 176:12-13; id. at 177:24-178:4; id. at 181:7-10; id. at 184:3-9; id. at 184:25-185:9; Reply at 24-25 (not disputing this fact). The Court will discuss each Plaintiffs search in turn,

a. C. Herrera’s Awareness of SFPS’ Search Policy; Her Search; Its Effects.

“Plaintiff C. Herrera underwent pat-down searches by ASI security officers at the 2010 Capital High prom and at homecoming dances and, therefore, knew she would be subject to a pat-down search when she arrived at the 2011 Capital High prom.” MSJ ¶ 47, at 12 (setting forth this fact). See ASI New Mexico’s C. Herrera Depo. at 35:14-36:11; id. at 198:17-200:9; id. at 201:4-202:15; id. at 203:11-204:24; Response ¶ 47, at 6 (stating only “Court previously deemed undisputed” and, not, therefore, disputing the fact).

Although C. Herrera finds any search without probable cause invasive, at the time she was searched,

Plaintiff C. Herrera had no objection to the pat-down searches she experienced in

attending the 2010 Capital High prom and homecoming dances, which were like the pat-down search at the 2011 Capital High prom but for the alleged improper groping and touching of bare skin during the 2011 Capital High prom pat-down.

MSJ ¶ 48, at 12 (setting forth unmodified version of this fact). See ASI New Mexico’s C. Herrera Depo. at 198:4-200:9; id. at 201-4-15; id. at 204:5-20; Videotaped Deposition of Candice Herrera at 201:4-9 (taken July 27, 2012), filed March 20, 2014 (Doc. 193-8)(“Plaintiffs’ C. Herrera Depo.”); id. at 203:17-204:4.

The security guard

had [C. Herrera] spread [her] arms and legs out, and she patted along [C. Herrera’s] arms, touched along the waist. And then she grabbed the outer part of [C. Herrera’s] bra and moved it here. And then she grabbed the inner part of [C. Herrera’s] bra and moved it here. And then she cupped [C. Herrera’s] breasts and shook them.

‡ ‡ ‡

[A]fterwards she moved down to [C. Herrera’s] waist and then she went all the way down [C. Herrera’s] dress and then she pulled the dress up to about mid-thigh and she felt up the bare leg, as well.

Plaintiffs’ C. Herrera Depo. at 127:16-128:9. See Response ¶ 1(a), at 9 (setting forth this fact’s substance); Reply at 24-25 (not disputing this fact).

a.[D]uring [C. Herrera’s] pat-down search, the security officer patted C. Herrera’s arms and waist, and grabbed the inner part of her bra, cupped her breasts, and felt up C. Herrera’s bare leg after pulling her dress up to mid-thigh;

b. she was looking at the security officer performing the pat-down search on her when the security officer touched C. Herrera’s breasts and bra clasp;

c. after the security officer touched C. Herrera’s breasts, the security officer then picked up C. Herrera’s dress to mid-thigh at which point C. Herrera tried to push her dress back down and the security officer told her to put her hands back up so she could finish; and

d. when C. Herrera put her hands back up, she looked up at Principal Romero, who smiléd at C. Herrera and turned back around.

MSJ ¶ 50, at 13 (setting forth this fact) (citations omitted). See ASI New Mexico’s C. Herrera Depo. at 127:16-128:9; id. at 129:10-18; id. at 129:16-131:2; id. at 135:16-136:2; Response ¶ 50, at 6 (stating that this fact is “[u]ndisputed”). She tried “to stop the guard from lifting her dress by holding it down with her hands but the guard demanded that she remove her hands to allow the search to continue.” Response ¶ 3, at 8 (setting forth this fact). See Plaintiffs’ C. Herrera Depo. at 129:10— 130:25; Reply at 24-25 (not disputing this fact).

After her pat-down search at the 2011 Capital High prom, Plaintiff C. Herrera:

a. attended the prom, had fun at the prom, and enjoyed spending time with her friends there from approximately 8:00 p.m. until around 11:00 p.m.;

b. went for ice cream afterwards with friends, ate ice cream with her friends in the Albertson’s' parking lot while sitting on or in their cars talking and listening to music;

c. went to a park and spent time hanging out with her friends for a couple of hours where they played on the playground equipment;

d. graduated from high school in 2011 and attended college; and

e. was successfully employed during the summer after graduating from high school in 2011.

MSJ ¶ 51, at 14 (setting forth, these facts) (citations omitted). See ASI New Mexico’s C. Herrera Depo. at 6:20-11:18; id. at 38:18-40:5; id. at 100:4-101:5; id. at 101:18-102:20; id. at 103:20-104:16; id. at 221:12-17; id. at 224:2-10; id. at 267:9-269:4; id. at 279:10-280:15, 282:14-21; Response ¶ 51, at 7 (stating that these facts are “[ujndisputed”). C. Herrera discovered, when she left the CHS Prom, that prescription medication that had been confiscated during her search was thrown away; this discovery upset her.

Plaintiff C. Herrera describes the emotional distress she claims to have experienced, because of the pat-down search performed on her at the 2011 Capital High prom, as worrying about whether she might be subjected to pat-down searches at other events she attends, especially school events. She was angered and embarrassed by the pat-down search.

MSJ ¶53, at 14 (setting forth this fact). See ASI New Mexico’s C. Herrera Depo. at 205:2-207:9; id. at 233:21-234:24; Response ¶ 53, at 7 (not disputing this fact). C. “Herrera felt exposed and uncomfortable with her dress pulled up.” Response ¶ 2, at 10 (citing Plaintiffs’ C. Herrera Depo. at 177:15-178:3). She “did not know how to react when her breasts were touched during her pat-down search, especially because of the guard’s position of authority.” Response ¶ 4, at 9 (citing Plaintiffs’ C. Herrera Depo. at 130:3-11). See Reply at 24 (not disputing this fact). “The experience of being searched left Candice Herrera feeling ... violated and exposed.” Response ¶ 11, at 11 (setting forth unmodified version of this fact). See Plaintiffs’ C. Herrera Depo. at 180:11-181:11; Reply at 24 (not disputing this fact). “The presence” and evident approval of school administrators made the situation “that much more uncomfortable.” Plaintiffs’ C. Herrera Depo. at 180:11-181:11. She “continues to worry about the possibility of people touching her.” Response ¶ 13, at 11. See Plaintiffs’ C. Herrera Depo. at 204:25-207:9; Reply at 24 (not disputing this fact).

“Plaintiff C. Herrera never sought or received any medical treatment or counseling for injuries she claims to have experienced because of the pat-down search at the 2011 Capital High prom.” MSJ ¶ 54, at 14 (setting forth this fact). See ASI New Mexico’s C. Herrera Depo. at 233:6-20; Response ¶ 54, at 7 (stating that this fact is “[ujndisputed”).

b. T. Herrera’s Awareness of SFPS’ Search Policy; Her Search; Its Effects.

“Plaintiff T. Herrera attended homecoming dances in 2010 and. 2011 at Capital High with her sister, Plaintiff C. Herrera, and pat-down searches of all students were conducted at those homecoming dances.” MSJ ¶ 55, at 14 (setting forth this fact). See ASI New Mexico’s C. Herrera Depo. at 202:5-8; id. at 203:11-22; Videotape Deposition of Tiffany Herrera at 128:8-129:3 (taken August 13, 2012), filed March 3, 2014 (Doc. 182-14)(“ASI New Mexico’s T. Herrera Depo.”); Response ¶ 55, at 7 (stating that the fact is “[u]ndisputed”).

“Plaintiff T. Herrera proceeded to the search line after arriving for the Capital High prom, waited to be pat-down searched after her sister and one or two other female students ahead of Plaintiff C. Herrera, and observed portions of her sister’s pat-down search before being pat-down searched herself.” MSJ ¶ 56, at 15 (setting forth this fact). See ASI New Mexico’s T. Herrera Depo. at 51:4-52:23; id. at 54:11-16; id. at 119:15-120:11; id. at 129:20-130:3; Response ¶ 56, at 7 (stating that this fact is “[u]ndisputed”).

The security guard

asked [T. Herrera] to spread [her] arms out and she ran her hands along [T. Herrera’s] arms which she could clearly see. And then she continued down to pat down [T. Herrera’s] waist and hips.

And then she — and then she went back up and cupped both [T. Herrera’s] breasts and shook them. And then she continued down to pat down the sides of [T. Herrera’s] dress. And then she lifted up [T. Herrera’s] dress and with her bare hands she ran her hands down along the inside of [T. Herrera’s] legs.

Plaintiffs’ T. Herrera Depo. at 58:20-23; id. at 59:9-14. See Response ¶ 1(b), at 9 (setting forth substantially this fact); Response at 24 (not disputing this fact).

a. [T. Herrera] was standing face-to-face with the security officer and was looking at the security officer during T. Herrera’s pat-down search;

b. the pat-down search included the security officer patting T. Herrera’s arms, behind her shoulder, her sides, grabbing and shaking T. Herrera’s breasts, and picking up T. Herrera’s dress and running her hands along the inside and outside of T. Herrera’s legs up to mid-thigh and that, while this whole pat-down search was going on, T. Herrera was looking at the security officer’s face but not in her eyes;

c. she has never spoken to anyone who ever said that they saw her pat-down search;

d. she does not know if Melanie Romero or any other Capital High School staff saw her pat-down search even though they were only a few feet away from her; and

e. she does not know if anybody saw her body exposed during the pat-down search.

MSJ ¶ 59, at 15-16 (setting forth these facts) (citations omitted). See ASI New Mexico’s T. Herrera Depo. at 60:24-61:19; id. at 62:8-19; id. at 63:15-64:3; id. at 65:11-67:7; id. at 69:5-11; id. at 121:24-122:4; id. at 125:4-17; Response ¶ 59, at 15-16 (stating that this fact is “[ujndisputed”). “Plaintiff T. Herrera did not object to undergoing a pat-down search at the 2011 Capital High prom, or complain regarding its scope, at the time of the search.” MSJ ¶ 58, at 15 (setting forth this fact). See ASI New Mexico’s Romero Depo. at 241:13-242:2; ASI New Mexico’s Lucero Depo. at 60:15-25; id. at 84:14-21; id. at 143:16-19; id. at 148:18-149:1; Romero Aff. at ¶ 14; ASI, New Mexico’s T. Herrera Depo. at 67:4 — 10; id. at 183:17-184:7.

“T. Herrera describes the pat-down search that allegedly included the security officer touching T. Herrera’s breast area and touching her bare skin as improper[,] because,” among other reasons, “ ‘they shouldn’t have done such an invasive search.’ ” MSJ ¶ 57, at 15 (setting forth unmodified version of this fact)(quoting ASI New Mexico’s T. Herrera Depo. at 74:13-17). See ASI New Mexico’s T. Herrera Depo. at 62:5-64:24; id. at 74:13-17; Plaintiffs’ T. Herrera Depo. 183:7-16; id. at 190:13-191:6. She “described her search as ‘extremely uncomfortable’ and indicated that she ‘felt violated, disrespected.’ ” Response ¶ 4, at 10 (quoting Plaintiffs’ T. Herrera Depo. at 86:19-25). See Reply at 24 (not disputing this fact).

After her pat-down search at the 2011 Capital High prom, Plaintiff T. Herrera:

a. focused on having a good time at the prom, attended the prom until almost the end, sat at the table having a good time talking with friends, danced, and the mood was “happy”;

b. went to Albertson’s with friends and bought ice cream and ate it in the parking lot;

c. met up with Mends at a park for about an hour before going home;

d. raised no complaint regarding the pat-down search with any SFPS employee while at the prom because she did not think it was necessary because she was focused on having a good time at the prom;

e. successfully continued attending high school and increased her class load to include taking community college classes to help further her career interests in being a paramedic firefighter;

f. planned to attend college to seek a Bachelor’s Degree in Emergency Medicine;

g. became involved in a volunteer firefighting department;

h. participated in track and field and was a cheerleader at Capital High during her junior year of high school;

i. considered participating in track and field her senior year at Capital High if not too busy with community college classes; and

j. graduated from high school.

MSJ ¶ 60, at 16-17 (setting forth these facts) (citations omitted). See ASI New Mexico’s T. Herrera Depo. at 6:5-14; id. at 8:23-12:7; id. at 13:5-20; id. at 13:21-14:13; id. at 101:16-103:18; id. at 152:17-153:7; id. at 159:11-160:6; id. at 161:1-16; id. at 160:9-25; ASI New Mexico’s Gurule-Leyba Depo. at 82:23-25.

“Plaintiff T. Herrera describes the emotional distress she claims to have experienced, because of the pat-down search performed on her at the 2011 Capital High prom, as feeling awkward, extremely uncomfortable, humiliated, violated, disrespected, and embarrassed.” MSJ ¶ 61, at 17. See ASI New Mexico’s T. Herrera Depo. at 68:19-25; id. at 182:16-183:12; Response ¶ 61, at 8 (not disputing this fact). “Plaintiff T. Herrera never sought or received any medical treatment or counseling for injuries she claims to have experienced because of the pat-down search at the 2011 Capital High prom.” MSJ ¶ 62, at 17 (setting forth this fact). See ASI New Mexico’s T. Herrera Depo. at 173:21-174:5; Response ¶ 62, at 7 (stating that this fact is “[ujndisputed”).

c. Hurtado’s Knowledge of SFPS’ Search Policy; Her Search;

Its Effects.

“Hurtado was pat-down searched by an ASI security officer without any groping when she attended the 2009 Capital High prom and had no problems with the standard pat-down search that occurred at that prom.” MSJ ¶ 63, at 17. See ASI New Mexico’s Hurtado Depo. at 153:23-154:12; id. at 155:15-21; Response ¶ 63, at 8 (not disputing this fact). “Hurtado observed other students being searched when she arrived for the 2011 Capital High prom before getting into the search line herself. She saw pat-down searches of two females in the search line, and her fiance’s pat-down search, before being searched herself.” MSJ ¶ 64, at 17 (setting forth these facts). See ASI New Mexico’s Hurtado Depo. at 97:19-98:2; id. at 99:1-100:19; id. at 101:21-108:18; Response ¶ 64, at 8 (stating that this fact is “[ujndisputed”).

Plaintiff Hurtado could not see the fronts of the female 'students ahead of her in line during their pat-down searches, but the portions of their pat-down searches that she could see were basically the same as the pat-down search that she experienced except that neither of those students had the inside of their thigh patted like she states hers was.

MSJ ¶ 65, at 18 (setting forth this fact). See ASI New Mexico’s Hurtado Depo. at 117:25-118:24; id. at 134:14-23; Response ¶ 65, at 8 (stating that this fact is “[ujndisputed”). “Hurtado did not object to undergoing a pat-down search at the 2011 Capital High prom, or complain regarding its scope” to Romero or to the guards “at the time of the search.” MSJ ¶ 66, at 18 (setting forth this fact). See ASI New Mexico’s Romero Depo. at 241:13-242:2; ASI New Mexico’s Lucero Depo. at 60:15-25; id. at 84:14-21; id. at 143:16-19; id. at 148:18-149:1; Romero Aff. ¶ 14, at 3; ASI New Mexico’s Hurtado Depo. at 135:9-21; id. at 145:19-25.

The security guard

went down the side of [Hurtado’s] body and then she went with her hands with her palms facing in and went around [Hurtado’s] breasts and went inside with her thumb to check if [Hurtado] had anything in [her] cleavage. Went down — again down [her] body. Went down both [her] thighs. [Her] inner included.

Hurtado Depo. at 109:23-110:4. See Response ¶ 1(c), at 9 (setting forth substantially this fact); Reply at 24 (not disputing this fact).

a.[T]he security officer was facing Hurtado while performing the pat-down search;

b. during Hurtado’s pat-down search, the security officer patted Hurtado down the sides of her body, touched Hurtado’s breasts and in her cleavage, touched her inner thigh, and removed Hurtado’s shoes and banged them on the table and then had Hurtado step back into her shoes;

c. while the security officer was performing the pat-down search, Hurtado was looking straight forward down the hallway at the entrance to the bathrooms;

d. Hurtado looked straight forward during her pat-down search because she felt uncomfortable and did not want to pay much attention or make eye contact with the security officer; and

e. Hurtado could not see anybody as she was looking straight forward down the hallway towards the bathrooms during her pat-down search.

MSJ ¶ 67, at 19 (setting forth this fact) (citations omitted). See ASI New Mexico’s Hurtado Depo. 109:20-110:8; id. at 111:22-112:9; id. at 113:1-114:13; Response ¶ 67, at 8 (stating that this fact is “[u]ndisputed”). “Hurtado’s conduct during the search indicated her discomfort with the search.” Reply ¶ 6, at 10 (setting forth this fact). See Plaintiffs’ Hurtado Depo. at 114:2-10; Reply at 24 (not disputing this fact).

After her pat-down search at the 2011 Capital High prom, Plaintiff Hurtado:

a. attended the prom for approximately two hours, spent time there with Plaintiff London at a reserved table, ate snacks at their table, danced a little bit with her boyfriend, took some pictures, and laughed with her Mends;

b. took a picture of herself and Plaintiff London while attending the prom;

c. went to get something to eat with her boyMend after leaving the prom and then went for a drive with him half-way up to Hyde Park before going home;

d. graduated from high school in 2011 and attended college; and

e. was successfully employed.

MSJ ¶ 68, at 18 (setting forth this fact) (citations omitted). See ASI New Mexico’s Hurtado Depo. at 20:11-22; id. at 23:7-27:9; 28:9-30:2; id. at 30:12-31:12; id. at 79:2-80:4; id. at 80:19-81:3 at 136:3-137:8; id. at 139:8-140:15; id. at 140:20-142:15; id. at 222:19-23; Unidentified Photograph (undated), filed March 3, 2014 (Doc. 182-15); Response ¶ 69, at 8 (stating that this fact is “[ujndisputed”).

“Hurtado describes the emotional distress she claims to have experienced, because of the pat-down search performed on her at the 2011 Capital High prom, as being worried about going to other places, like concerts, where she might be searched, and feeling humiliation and embarrassment because of the pat-down search.” MSJ ¶ 69, at 19 (setting forth this fact). See ASI New Mexico’s Hurtado Depo. at 185:15-25; id. at 186:23-187:4; id. at 188:3-14; Response ¶ 69, at 8 (stating that this fact is “[ujndisputed”). She “worries every day about .being subjected to search.” Response ¶ 8, at 10 (setting forth this fact). See Hurtado Depo. at 187:20-188:2; Reply at 24 (not disputing this fact). She “felt humiliated and embarrassed about being touched inappropriately by a stranger in public and in front of classmates.” Response ¶ 7, at 10. See Plaintiffs’ Hurtado Depo. at 185:15-25; Reply at 24 (not disputing this fact). “The searches at prom made [her] emotionally distressed and afraid to go to events where there might be similar searches.” Response ¶ 9, at 10. See Hurtado Depo. at 186:23-187:11; id. at 233:21-234:17; Reply at 24 (not disputing this fact).

“Hurtado never sought or received any medical treatment or counseling for injuries she claims to have experienced because of the pat-down search at the 2011 Capital High prom.” MSJ ¶ 70, at 19 (setting forth this fact). See ASI New Mexico’s Hurtado Depo. at 188:15-18; id. at 190:7-10; Response ¶ 70, at 8 (stating that this fact is “[u]ndisputed”).

d. London’s Knowledge of SFPS’ Search Policy; Her Search;

Its Effects.

“London was pat-down searched her sophomore year in attending homecoming at Rio Grande High School in Albuquerque, and in attending concerts, and had no objection to the pat-down searches performed at those venues.” MSJ ¶ 71, at 19-20 (setting forth this fact). See ASI New Mexico’s London Depo. at 181:14-185:11; id. at 186:10-18; Response ¶ 71, at 8 (not disputing this fact). “London did not object to undergoing a pat-down search at the 2011 Capital High prom, or complain regarding its scope, at the time of the search.” MSJ ¶ 72, at 20 (setting forth this fact). See ASI New Mexico’s Romero Depo. at 241:13-242:2; ASI New Mexico’s Lucero Depo. at 60:15-25; id. at 84:14-21; id. at 143:16-19; id. at 148:18-149:1; Romero Aff. ¶ 14, at 3; London Depo. at 134:25-135:24.

The security guard

told [London] to spread [her] legs and then she patted [London’s] legs down. And then she went all the way up and then she did the other leg and then she lifted [London’s] skirt a little bit and she patted [London’s] legs even more. And then she patted the front of [London], so she did [London’s] stomach and [her] sides and then she did [London’s] chest. And then she put her hands underneath the seams of [London’s] dress and on the sides and on the back. And then she patted [London’s] back side down.

London D