Herrera ex rel. Herrera v. Schools (41 F. Supp. 3d 1188, 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 the Santa Fe Public Schools Board of Education’s Motion for Summary Judgment on Count I of Plaintiffs’ Second Amended Complaint [Doc. 100], filed March 3, 2014 (Doc. 187) (“MSJ”). The Court held a hearing on April 8, 2014. The primary issues are: (i) whether evidence in the record supports the Plaintiffs Candice Herrera, T. H., a minor by and through her father and guardian Vincent Herrera, Ashley Hurtado, and Arianna London’s allegation that Defendants Santa Fe Public Schools Board of Education, Barbara Gudwin, Glen Wikle, Linda Trujillo, Frank Montano, Steven J. Carrillo, Bobbie J. Gutierrez, Melanie Romero and Leslie Kilmer (collectively “the SFPS Defendants”), each of which remain in this case in their official capacities as employees or members of the Santa Fe Public Schools Board of Education, are responsible, under Monell v. New York City Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), for certain searches that the Plaintiffs allegedly endured at the 2011 Capital High School Prom (“CHS Prom”); and (ii) if they are responsible, whether the Court should limit the Plaintiffs’ recovery to nominal damages. The Court will grant the MSJ in part and deny it in part. The Court concludes that there is sufficient evidence in the record from which a reasonable jury could find that the SFPS Defendants had a custom or practice of conducting suspicion-less pat-down searches before school events; that this policy caused the Plaintiffs’ injuries, insofar as they relate to the suspicionless nature of the searches; and that the SFPS Defendants acted with the requisite state of mind. There is not, however, sufficient evidence in the record for which a jury could reasonably hold the SFPS Defendants accountable for the invasive manner in which Defendant ASI New Mexico, LLC’s officers conducted the pat-down searches. The Court will not limit the Plaintiffs’ potential recovery to nominal damages, because there is sufficient evidence on which a reasonable jury could hold that the Plaintiffs have suffered compensable harm beyond the abstract harm to their constitutional rights and that the SFPS Defendants caused some percentage of that separate harm. Finally, the Court will deny the MSJ as to that portion of the Plaintiffs’ claims that relates to possession searches and seizures. The SFPS Defendants only cursorily refer to those claims in the MSJ, leaving the argument substantially undeveloped until the Santa Fe Public School Board of Education’s Reply in Support of Motion for Summary Judgment on Count I of Plaintiffs’ Second Amended Complaint, filed April 7, 2014 (Doc. 203) (“Reply”). Moreover, on the merits, a reasonable jury could find that the SFPS Defendants had a custom or practice of conducting suspicion-less possession searches and seizures before school events, that this policy injured the Plaintiffs, and that the SFPS Defendants acted with the requisite state of mind.

FACTUAL BACKGROUND

The Court will first provide those facts that it deems undisputed for purposes of this motion as they are found in the MSJ and in the Plaintiffs’ Opposition to Defendant Santa Fe Public Schools Board of Education’s Motion for Summary Judgment on Count I of Plaintiffs’ Second Amended Complaint, filed March 20, 2014 (Doc. 192) (“Response”). It will discuss, where appropriate, the SFPS Defendants’ factual arguments in their Reply.

1. The Undisputed Facts.

The Court will discuss the undisputed facts in several parts. The Court will first discuss the organization of Capital High School (“CHS”) and the Santa Fe public school board, its arrangement with ASI New Mexico, and these organizations’ knowledge of search procedure. It will then discuss the searches of the Plaintiffs, the Plaintiffs’ mindset, and the searches’ effects on the Plaintiffs. Finally, the Court will discuss parental complaints about the CHS Prom.

a. The Organization of Capital High School and the Santa Fe Public School Board, the Arrangement with ASI New Mexico, and These Organizations’ Knowledge of Search Procedure.

“Capital High School (‘CHS’) is a secondary school located in Santa Fe, New Mexico and is in the Santa Fe Public School District.” MSJ ¶2, at 4 (setting forth this fact); Response ¶2, at 2 (not disputing this fact). See Second Amended Complaint ¶¶ 18-20, at 5-6, filed September 18, 2012 (Doc. 100) (“Complaint”). “Defendant School Board is the governing body of SFPS with sole, statutory, policy-making authority for SFPS.” MSJ ¶ 3, at 4 (setting forth this fact). See N.M. Stat. Ann. § 22-5-4. “Defendant Melanie Romero, principal of CHS at the time of the [CHS] Prom,” lacked formal statutory authority to make policies within SFPS, although she had some de facto authority to make decisions to ensure her students’ safety. See N.M. Stat. Ann. § 22-10A-18 (outlining a school principal’s statutory authority); Videotaped Deposition of Bobbie J. Gutierrez at 121:8-12 (taken March 22, 2012), filed March 20, 2014 (Doc. 192-5) (“Gutierrez Depo. Vol. I”) (noting that principals “are the CEOs of their schools, and that they need to make some decisions that will insure” their students’ safety).

“In 2004, SFPS contracted with ASI to provide security services for SFPS on school grounds and at school-sponsored events.” Response ¶ 13, at 9 (setting forth this fact). See Gutierrez Depo. Vol. I at 80:22-24; Deposition of Martin “Mark” Archuleta at 51:8-52:2, taken March 9, 2012, filed March 20, 2014 (Doc. 192-2) (“Archuleta Depo. Vol. I”); Reply ¶ 13, at 16 (not controverting this fact). “At the beginning of its contract with ASI,” school officials “and then-Superintendent [Gloria] Rendon instructed ASI that pat-down searches were to be conducted of all students entering” school “dances.” Response ¶ 14, at 16 (setting forth original version of this fact). See Deposition of Micah Johnson at 84:10-85:15, taken January 16, 2014, filed March 20, 2014 (Doc. 192-11) (“Johnson Depo.”); id. at 89:13-22; Deposition of Martin “Mark” Archuleta at 168:2-169:8 (taken January 30, 2014), filed March 20, 2014 (Doc. 192-3) (“Archuleta Depo. Vol. II”); id. at 182:2-11. “Based on” directives from SFPS officiáis, “ASI representatives understood that pat-down searches had long been part of • • • standard search practices” in the SFPS “and that ASI was expected to con-tinue those practices.” _ Response ¶ 15, at (setting forth unmodified version of this fact). “ASI officials agreed that” the existing “blanket pat-down rule should be applied at SFPS proms.” Response ¶ 16, at 10 (setting forth this fact). See Archuleta Depo. Vol. I at 118:6 — 20.

“ASI trained its employees” in a manner consistent with certain “written Pat Down Guidelines when performing searches at SFPS events.” Response ¶ 18, at 10 (setting forth unmodified version of this fact). Johnson Depo. at 73:18-25. “The Pat Down Guidelines require bra searches of female subjects in which the front of the bra is pulled away from the body.” Response ¶ 19, at 16 (setting forth this fact). See “Pat Down” Guidelines, no date provided, filed March 20, 2014 (Doc. 192-24). “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 ¶ 20, at 16 (setting forth this fact) (quoting “Pat Down” Guidelines at l). “The principals of Capital High School and Santa Fe High School reviewed the written Pat Down Guidelines.” Response ¶ 21, at 18 (setting forth this fact). See Gutierrez Depo. Yol. II at 213:18-214:11; id. at 215:5-9. “The Pat Down Guidelines are consistent with the training SFPS administrators received regarding SFPS’s pat-down procedure.” Response ¶ 22, at 11. See Gutierrez Depo. Vol. II at 216:17-217:4. When asked after the event, “Superintendent Gutierrez ha[d] no objection to any aspect of the Pat Down Guidelines.” Response ¶23, at 11 (setting forth unmodified version of this fact). See Gutierrez Depo. Vol. II at 217:5-17. “SFPS officials reviewed and were familiar with ASI’s pat-down methods.” Response ¶ 24, at 17 (setting forth this fact). Deposition of Melanie Romero at 48:16-49:19 (taken March 19, 2012), filed March 20, 2014 (Doc. 192-19) (“Romero Depo.”).

“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 ¶ 25, at 11 (setting forth this fact). See Archuleta Depo. Vol. II at 168:2-169:8; id. at 244:2-20; Romero Depo. at 53:9-54:2; id. at 138:19-139:8; Deposition of Michael Hagele at 75:5-12 (taken May 7, 2012), filed March 20, 2014 (Doc. 192-7) (“Hagele Depo.”); id. at 77:6-16; id. at 78:6-16; 86:22-87:5. School Board members attended proms and observed the search procedures. Gutierrez Depo. Vol. I at 131:13-25. “Bra searches of female students were part of’ the “standard pat-down search practice.” Response ¶ 25, at 11 (setting forth unmodified version of this fact). See Deposition of Rose Lucero at 28:19-25 (taken May 15, 2012), filed March 3, 2014 (Doc. 132-11) (“Lucero Depo.”); id. at 35:6-12; Deposition of Rebecca Reyes Vol. I at 60:6-61:22 (taken May 8, 2012), filed March 20, 2014 (Doc. 192-17) (“Reyes Depo.”); id. at 62:1-13. It had been the practice in schools within SFPS to conduct pat-down searches that required female subjects to pull their bras away from their body, allowing contraband to fall. See, e.g., Romero Depo. at 53:9-54:2; id. at 138:19-139:8; Reyes Depo. at 60:6-61:22; id. at 63:17-64:9; id. at 114:24-115:9; Deposition of Michael Hagele at 75:5-12 (taken May 7, 2012), filed March 20, 2014 (Doc. 192-7) (“Hagele Depo.”); id. at 78:6-16; id. at 86:22-88:5; Gutierrez Depo. Vol. II at 215:5-217:4; “Pat Down” Guidelines at 1. Those searches did not include searches of the bare skin.

The schools’ “standard search practice also included possession searches where students’ bags and belongings were searched.” Response ¶27, at 11 (setting forth unmodified version of this fact). See Romero Depo. at 189:19-139:9; Lujan Depo. at 138:15-22; id. at 155:13-156:4; Deposition of Cynthia Clarke, Ph.D. at 71:16-73:10 (taken May 14, 2012), filed March 20, 2014 (Doc. 192-4) (“Clarke Depo.”). “During possession searches, the contents of students’ bags were often emptied in public view.” Response ¶ 28, at 11 (setting forth this fact). See Clarke Depo. at 71:16-73:10. “Personal items, such as lotion, makeup, and perfume, were confiscated as part of the possession searches.” Response ¶ 29, at 11 (setting forth this fact). See Romero Depo. at 155:1-7; Deposition of Arianna London at 156:25-157:4 (taken August 24, 2012), (filed March 20, 2014) (“London Depo.”); id. at 212:20-213:7. “If medication was found during possession searches, it was confiscated.” Response ¶ 30, at 12 (setting forth this fact). See Deposition of Candice Herrera at 151:9-21 (taken July 27, 2012), filed March 20, 2014 (Doc. 192-8) (“C. Herrera Depo.”); Romero Depo. at 155:8-17.

“Wand searches were added to [the schools’] search protocol during ASI’s tenure, resulting in students entering an SFPS prom being subjected to three searches: a pat-down, a wand search, and a possession search.” Response ¶ 31, at 12 (setting forth unmodified version of this fact). See Archuleta Depo. Vol. II at 183:8-11; id. at 188:4-15. “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 [the school’s] customary search practices at the event.” Response ¶ 32, at 12 (setting forth unmodified version of this fact). See Archuleta Depo. Vol. II at 168:11-14; Romero Depo. at 94:6-95:8; id. at 96:7-21; id. at 97:9-17.

“The version of the Code of Conduct that was in place on April 16, 2011, was adopted by the School Board at the regular School Board Meeting on July 20, 2010 for the 2010-2011 school year.” MSJ ¶ 7, at (setting forth this fact); Response ¶ 7, at 2-3 (not disputing this fact). See Board of Education Minutes of a Regular Board Meeting (dated July 20, 2010), filed March 3, 2014 (Doc. 187-2). The new version of the Code of Conduct that the School Board adopted on July 20, 2010, reflected substantial,, although not total, revisions, made in consultation with legal counsel. See Board of Education Minutes of a Study Session, dated July 8, 2010, filed March 3, 2014 (Doc. 187-3).

Nothing in the School Board’s Code of Conduct authorizes searches as alleged by the Plaintiffs or suspicionless posséssion and pat-down searches as occurred at the Prom. To the contrary, it provides that “[m]ore intrusive searches, such as pat-downs, may be conducted only on the basis of reasonable suspicion of the individual student to be searched” (Code of Conduct, Exhibit 1 at p. 57) and “[pjurses, wallets, book bags, cell phones, and similar items of student’s [sic] personal property may be searched when school officials have individualized reasonable suspicion that such personal property contains contraband in violation of school rules or state or federal law” (Id., p. 58).

MSJ ¶ 9, at 5-6 (emphasis in original) (correction added) (setting forth this fact); Response ¶ 9, at 3 (stating that this fact is “[u]ndisputed”).

b. Planning for and Execution of Searches at the CHS Prom.

“Prior to the [CHS Prom], Principal Romero directed ASI to carry out the same pat-downs, wanding, and possession searches that were part of [the] customary practice.” Response ¶ 33, at 12 (setting forth unmodified version of the fact). See Romero Depo. at 132:7-20; id. at 137:13-18; id. at 138:19-139:8. “Principal Romero had” de facto “authority to issue instructions regarding the searches to be conducted at the [CHS Prom].” Response ¶ 34, at 12 (setting forth unmodified version of this fact). See Gutierrez Depo. Vol. I at 123:4-9; Videotaped Deposition of Bobbie Gutierrez at 227:18-228:2 (taken April 3, 2012), filed March 20, 2014 (Doc. 192-6) (“Gutierrez Depo. Vol. II”).

“All students attending the [CHS Prom] were subjected to a pat-down search, a wand search, and a search of any bags or jackets they had in their possession.” Response ¶ 35, at 12 (setting forth this fact). See Romero Depo. at 139:9-17; id. at 171:3-11. “Students entering the [CHS Prom] were subjected to pat-down searches without any individualized suspicion.” Response ¶ 36, at 12 (setting forth this fact). See Reyes Depo. Vol. II at 48:9-21. “Female students’ bras were pulled and shaken or otherwise searched at the [CHS Prom] as part of the pat-down search.” Response ¶ 37, at 13. Reyes Depo. Vol. I at 60:6-61:22; id. at 1-13; id. at 114:21-115:9; Lucero Depo. at 28:29-25; id. at 58:16-19; id. at 58:16-19; id. at 59:3-9; id. at 64:22-24; id. at 130:8-23; Gutierrez Depo. Vol. II at 246:14-21. “The searches conducted at the 2011 Capital High School prom were conducted pursuant to Principal Romero’s instructions for implementing [the] customary search practice.” Response ¶ 38, at 13 (setting forth unmodified version of this fact). See Romero Depo. at 132:7-20; id. at 137:13-18; id. at 138:19-8. “Both ASI and SFPS personnel carried out the searches at the [CHS Prom].” Response ¶ 39, at 39 (setting forth this fact). Romero Depo. at 141:14-23; id. at 142:19-22; Archuleta Depo. Vol. II at 166:23-167:13; Aguilar Depo. at 227:9-22. “ASI guard Rebecca Reyes ... 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 ¶ 40, at 13 (setting forth this fact). Reyes Depo. Vol. I at 59:5-25; id.- at 60:14-61:7; id. at 73:14-21.

c. The Searches of the Plaintiffs, the Mindset of the Plaintiffs, and the Searches’ Effects on the Plaintiffs.

“Each of the four individual Plaintiffs”— Candice Herrera, Tiffany Herrera, Ashley Hurtado, and Arianna London — underwent a pat-down search at the CHS Prom. Response ¶ 1 (setting forth this fact); C. Herrera Depo. at 127:16-128:9; Deposition of Tiffany Herrera at 58:20-23 (taken August 13, 2012), filed March 20, 2014 (Doc. 192-9) (“T. Herrera Depo.”); id. at 59:9-14; Videotaped Deposition of Ashley Hurtado. at 109:23-110:4 (taken July 30, 2012), filed March 20, 2014 (Doc. 192-10) (“Hurtado Depo.”); London Depo. at 120:9-17. 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.

C. Herrera Depo. at 127:16-128:9. See Response ¶ 1(a), at 7 (setting forth this fact). C. “Herrera felt exposed and uncomfortable with her dress pulled up.” Response ¶ 2, at 8 (citing C. Herrera Depo. at 177:15-178:3). 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 (C. Herrera Depo. at 129:10-130:25). 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 8 (citing C. Herrera Depo. at 130:3-11). “The experience of being searched left Candice Herrera feeling ... violated and exposed.” Response ¶ 9, at 9 (setting forth this fact). “The presence” and evident approval of school administrators made the situation “that much more uncomfortable.” C. Herrera Depo. at 180:11 — 181:11. She “continues to worry about the possibility of people touching her.” C. Herrera Depo. at 204:25-207:9.

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.

T. Herrera Depo. at 58:20-23; id. at 59:9-14. See Response ¶ 1(b), at 7-8 (setting forth this fact). 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 8 (setting forth this fact). She “felt humiliated and embarrassed about being touched inappropriately by a stranger in public and in front of classmates.” Response ¶ 5, at 9 (setting forth this fact). Hurtado Depo. at 185:15-25. She “worries every day about being subjected to [a] search.” Response ¶ 6, at 9 (setting forth this fact). “The searches at prom made [her] emotionally distressed and afraid to go to events where there might be similar searches.” Response ¶ 7, at 9. See Hurtado Depo. at 186:23-187:11; id. at 233:21-234:17.

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 Depo. at 120:9-17. See Response ¶ 1(d), at 8 (setting forth this fact). Her “prom search ruined the memory of prom for her and made her feel disrespected and bad about herself.” Response ¶ 8, at 9 (setting forth this fact). See London Depo. at 212:17-213:7.

The “Plaintiffs Candice Herrera, Tiffany Herrera and Ashley Hurtado had prior notice and knowledge that they would undergo pat-down and possession searches at the prom.” MSJ ¶ 14, at 7 (setting forth this fact). See Response ¶ 14, at 5 (not controverting this fact). C. “Herrera underwent pat-down searches by ASI guards at the 2010 CHS prom and homecoming dances and, therefore, she knew she would be subjected to a patdown search when she arrived at the prom.” MSJ ¶ 14(a), at 7 (setting forth this fact). See Response ¶ 14(a), at 5 (not controverting this fact). “Tiffany Herrera and Candice Herrera attended homecoming dances in 2010 and 2011, at which there were pat-down searches, before the prom.” MSJ ¶ 14(b), at 7 (setting forth this fact). See Response ¶ 14(b), at 5 (not controverting this fact). “Ashley Hurtado underwent a pat-down search without groping at the 2009 CHS prom.” MSJ ¶ 14(c), at 7 (setting forth this fact). See Response ¶ 14(c), at 5 (not controverting this fact).

C. Herrera underwent pat-down searches by ASI New Mexico guards at the 2010 Capital High prom and homecoming dances, and, therefore, she knew she would be subject to a patdown search when she arrived at the prom; despite this knowledge, she attended the 2011 CHS Prom, although she did not know that the search would be as intrusive as it was. See Deposition of Candice Herrera at 198:22-200:9 (taken July 27, 2012), filed November 13, 2012 (Doc. 113 — 4); id. at 201:4-202:15; id. at 203:ll-204:24. “Hurtado testified that she did not have a problem with the basic pat-down search without groping that she experienced at the 2009 CHS prom.” MSJ ¶ 15(b), at 8 (setting forth this fact). See Response ¶ 15(b), at 5 (not controverting this fact). “Plaintiff Arianna London underwent pat-down searches at a dance at Rio Grande High School, in Albuquerque, New Mexico, as well as at certain concert venues, without objection.” MSJ ¶ 15(c), at 8 (setting forth this fact). See Response ¶ 15(c), at 5 (not controverting this fact).

“Plaintiff T. Herrera did not object to undergoing a pat-down search at the [CHS] Prom, or complain regarding its scope, at the time of the search.” MSJ ¶ 17, at 8 (setting forth this fact). See Deposition of Tiffany Herrera at 67:8-10 (taken August 13, 2012), filed March. 3, 2014 (Doc. 182-14). “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 ¶ 18, at 8 (setting forth this fact) (quoting T. Herr.era Depo. at 74:13-17). See T. Herrera Depo. at 183:7-16; id. at 190:13-191:6.

“Hurtado did not object to úndergoing a pat-down search at the Prom, or complain regarding its scope,” to Romero or to the guards “at the time of the search.” MSJ ¶ 19, at 9 (setting forth this fact). See Deposition of Ashley Hurtado at 135:9-21 (taken July 30, 2012), filed March 3, 2014 (Doc. 182-15); id. at Affidavit of Melanie Romero ¶ 14, at 3 (executed November 12, 2012), filed November 13, 2012 (Doc. 113-14) (“Romero Aff.”). “Plaintiff London did not object” to the guard or to Romero about “undergoing a pat-down search at the [CHS] Prom, or complain regarding its scope, at the time of the search.” MSJ ¶ 20, at 9 (setting forth this fact). See Deposition of Arianna London at 135:10-24 (taken August 24, 2012), filed March 3, 2014 (Doc. 182-16); Romero Aff. ¶ 14, at 3; Lucero Depo. at 143:16-19.

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. See Deposition of Stephanie Gurule-Leyba at 44:15-24, taken December 10, 2013, filed March 3, 2014 (Doc. 182-8) (“Gurule-Leyba Depo.”); id. at 61:10-62:16; C. Herrera Depo. at 160:7-162:21; T. Herrera Depo. at 156:2-158:14.

d. Parental Complaints About the CHS Prom.

“Shortly after the [CHS Prom], both Plaintiff Candice Herrera and Vincent Herrera expressed concern to Principal Romero about the searches that had been conducted.” Response ¶ 41, at 13 (setting forth this fact). Romero Depo. at 188:2-10; id. at 190:17-191:20. “Vincent Herrera expressed concern about the searches that had been conducted at the [CHS Prom] to Associate Superintendent Susan Lujan, who relayed Mr. Herrera’s concerns to Superintendent Gutierrez.” Response ¶ 42, at 13 (setting forth this fact). See Lujan Depo. at 129:21-130:5; id. at 136:2-21. An “Executive Team discussed [the existing] search practices and the Herreras’ complaints, and decided not to change [the] search practices” that would govern the Santa Fe High School prom. Response ¶ 43, at 13 (setting forth this fact). See Lujan Depo. at 138:15-22; id. at 155:13-156:4.

PROCEDURAL BACKGROUND

“This case arises from searches that occurred at the” CHS Prom. MSJ ¶ 1, at 4 (setting forth this fact); Response ¶ 1, at 2 (not disputing this fact). See Complaint ¶¶ 3-4, at 2-3. The “Plaintiffs allege ... that the Code of Conduct requires individualized reasonable suspicion before pat-down or possession searches can properly be pursued and ... that ‘[t]he searches of students, including Plaintiffs, and their personal property on April 16, 2011, occurred in violation of the code of conduct. ...’ ” MSJ ¶ 5, at 5 (quoting Complaint ¶¶ 111-13, at 20-21) (setting forth these facts). See Response ¶ 5, at 2 (stating that this fact is “[ujndisputed”); Complaint ¶¶ 111-13, at 20-21. Each Plaintiff claims that a female ASI New Mexico guard performed pat-down searches at the CHS Prom, the guards searched her bra, breasts, and/or legs, and that the guards touched their bare skin invasively. Corn-plaint ¶¶ 41-43, at 10; id. at 55-57, at 12; id. ¶¶ 65-67, at 13.

“The Court issued a Temporary Restraining Order requiring SFPS to only conduct patdown searches of students entering the 2011 Santa Fe High School prom upon individualized reasonable suspicion.” Response ¶ 44, at 14 (setting forth this fact). See Amended Memorandum Opinion and Order at 36, filed May 20, 2011 (Doc. 32) (“TRO MOO”). “In its Temporary Restraining Order, the Court prohibited SFPS from conducting pat-down searches of every student entering the event, from emptying the contents of students’ bags in public view, and from confiscating medicine and other personal items without prior notice.” Response ¶ 45, at 14 (setting forth this fact). See TRO MOO at 35-37. “There were no” observed or reported “incidents or problems with drugs, weapons, or alcohol being present at the 2011 Santa Fe High School prom.” Response ¶ 46, at 14 (setting forth unmodified version of this fact). See Clarke Depo. at 67:9-12; id. at 67:23-25; Padilla Depo. at 47:13-17; Morgan Depo. at 77:22-25; Gutierrez Depo. Vol. I at 188:14-17. “Superintendent Gutierrez admitted that conducting pat-down searches of students only after a wand alerted would be a sufficient and effective procedure for SFPS proms.” Response ¶ 47, at 13 (setting forth unmodified version of this fact). Gutierrez Depo. Vol. I at 195:13-196:1.

1. The Complaint.

The Plaintiffs filed their Complaint on September 18, 2012. See Doc. 100. Count I alleges a- claim under 42 U.S.C. § 1983 for violation of the Plaintiffs’ rights under the Fourth Amendment to the Constitution of the United States of America to “be secure in their persons and effects against unreasonable searches and seizures.” Complaint ¶ 135, at 24. On October 24, 2012, Romero and the SFPS Defendants moved to dismiss the remaining counts — II through V — of the Second Amended Complaint. See School Defendants’ Motion for Summary Judgment on Counts II, III, IV, and V of the Second Amended Complaint [Doc. 100] under the Tort Claims Act and Memorandum in Support (Doc. 108). On November 9, 2012, the Plaintiffs’ counsel informed Defendants SFPS Board of Education, Barbara Gudwin, Glenn Winkle, Linda Trujillo, Frank Montano, and Steven J. Carillo, in their official capacity as SFPS Board of Education members, Bobbie J. Gutierrez, in her official capacity as SFPS Superintendent, Romero, in her official capacity as Capital High Principal, and Leslie Kilmer, in her official capacity as Santa Fe High School Principal (collectively “School Defendants”) that the Plaintiffs would concede the motion and file a rule 41 dismissal of Counts II-V of the Second Amended Complaint against all School Defendants, which the Plaintiffs filed on November 13, 2012. See Plaintiffs’ Unopposed Motion to Voluntarily Dismiss Counts II-V Against the Schools [sic] Defendants (Doc. 114). On November 15, 2012, the Court entered an Order granting the Plaintiffs’ motion, and dismissing Counts II, III, IV, and V against Defendants SFPS Board of Education; Barbara Gudwin, Glenn Wikle, Linda Trujillo, Frank Montano, and Steven J. Carrillo, in their official capacities as members of the SFPS Board of Education; Bobbie J. Gutierrez, in her official capacity as Superintendent of SFPS; Melanie Romero, in her official capacity as Principal of Capital High School; and Leslie Kilmer, in her official capacity as Principal of Santa Fe High School; and dismissing as moot the School Defendants’ Motion for Summary Judgment on Counts II, III, IV, and V of the Second Amended Complaint [Doc. 100] under the Tort Claims Act and Memorandum in Support. See Order at 1 (Doc. 118). In the Romero MOO, the Court granted the Romero MSJ, eliminating the individual-capacity claim against Romero. See Romero MSJ passim.

2. The MSJ.

The SFPS Defendants move for summary judgment on Count I of the Complaint, because “the facts in the record herein do not support any claim made by Plaintiffs against the School Board or its employees in their official capacities.” MSJ at 1. The SFPS Defendants note that “the individual school defendants sued only in their official capacities moved for dismissal or summary judgment on Count I.” MSJ at 1 n. 1. After reviewing the Romero MOO, in which the Court disposed of the Plaintiffs’ claims against Romero, see MSJ at 2, the SFPS Defendants narrow the questions that the Court faces in the MSJ:

Regarding whether the School Board is liable for Ms. Romero’s actions or the alleged actions of ASI employees, the following questions should be examined: Was there conduct that is properly attributable to the School Board that evidences a deliberate or conscious choice of the School Board that was the moving force causing Plaintiffs’ alleged injuries? If so, the School Board is only liable for injuries as to which its deliberate or conscious choice was the moving force causing those injuries. If not, the School Board and its employees in their official capacities are entitled to summary judgment on Count I of the Second Amended Complaint and to be dismissed from the action with prejudice. However, if the Court finds conduct properly attributable to the School Board evidences a deliberate or conscious decision by the School Board that was the moving force causing Defendant Romero to violate Plaintiffs’ Fourth Amendment rights by asking ASI and its employees to perform pat-down searches on all Prom attendees, two additional questions follow. First, are the Plaintiffs entitled to more than nominal damages based solely on having to undergo a pat-down at the Prom? Second, does conduct properly attributable to the School Board evidence a deliberate or conscious decision by the School Board that was the moving force in causing, if such allegations are proved, further alleged damages to the Plaintiffs as a result of inappropriate touching or groping by ASI employees during their pat-down searches?

MSJ at 2-3. In the SFPS Defendants’ view, the Plaintiffs have not alleged or proved that the SFPS Defendants made “a deliberate or conscious decision ... that was the moving force in causing any constitutional injury to any Plaintiff.” MSJ at 3. They contend that, if the Court disagrees, and holds that the SFPS Defendants may be liable

merely for injuries caused by Defendant Romero’s decision to require that all attendees to the Prom undergo pat-down searches without individualized reasonable suspicion, but not liable for any additional injuries caused by improper and unprofessional conduct of ASI employees and supervisors, ... Plaintiffs are entitled to no more than nominal damages.

MSJ at 3. In the SFPS Defendants’ view, the Plaintiffs have not developed “evidence that the policies and practices of the School Board caused any harm to Plaintiffs or their rights and the School Board and individual official capacity school defendants should be dismissed from this matter with prejudice.” MSJ at 3.

After reviewing the familiar standards for summary judgment, see MSJ at 10-11, the SFPS Defendants note that the only remaining claim against the SFPS Defendants is a claim that they violated the Plaintiffs’ Fourth-Amendment rights, see MSJ at 12. In their view, “[n]o conduct that is properly attributable to the School Board evidences a deliberate or conscious choice of the School Board that was the moving force causing Melanie Romero to request patdown searches without individualized reasonable suspicion.” MSJ at 12. Citing the familiar standards for municipal liability under 42 U.S.C. § 1983, see MSJ at 12-13, the SFPS Defendants argue that,

to hold the School Board liable for Melanie Romero’s actions, Plaintiffs must establish that conduct properly attributable to the School Board evidences a deliberate or conscious choice of the School Board making a policy or practice that was the moving force causing Melanie Romero to request pat-down searches without individualized reasonable suspicion, contrary to the School Board’s Code of Conduct, thereby causing Plaintiffs’ to suffer the alleged violations of their Fourth Amendment rights.

MSJ at 13. The SFPS Defendants then put the facts in context, noting that, because the School Board governs the Santa Fe Public School district and has “sole, statutory, pohcy-making authority for SFPS, ... in effect, the School Board is SFPS.” MSJ ¶ 13. At the same time, it notes that Romero did not have authority to make policies within SFPS — indeed, she “lacked authority to adopt even CHS policies that were not consistent with School Board policies.” MSJ ¶ 13. They note that the Code of Conduct “allows only that ‘[e]ach school may adopt additional policies and regulations that are consistent with school district standards of behavior.’ ” MSJ at 13-14 (quoting Code of Conduct at 10).

It also notes that, as part of its authority under state law, the School Board is responsible for the Code of Conduct’s content. See MSJ at 14. After reviewing the history of the Code of Conduct that the Court laid out in the factual background, it argues:

It is clearly undisputed that the Code of Conduct does not permit pat-down and possession searches without individualized reasonable suspicion. Plaintiffs allege in the Second Amended Complaint [Doc. 100], at paragraphs 111-112, that the School Board’s Code of Conduct requires individualized reasonable suspicion before pat-down or possession searches can properly be pursued and, at ¶ 113, that “[t]he searches of students, including Plaintiffs, and their personal property on April 16, 2011, occurred in violation of the Santa Fe Public Schools Code of Conduct ... [.]”• Undisputed Fact No. 5. Plaintiffs’ expert witness, David Keylon, testified at his deposition that the School Board’s policies regarding student searches were consistent with those of other school districts in New Mexico and were adequate. Undisputed Fact No. 6. His second opinion was that those policies of the School Board were not followed at the Prom. Id.

Nothing in the School Board’s Code of Conduct authorizes searches as alleged by the Plaintiffs or suspicionless possession and pat-down searches as occurred at the Prom. Undisputed Fact No. 9. To the contrary, it specifically provides that “[m]ore intrusive searches, such as pat-downs, may be conducted only on the basis of reasonable suspicion of the individual student to be searched” (Code of Conduct, Exhibit 1, at p. 57) and “[p]urses, wallets, book bags, cell phones, and similar items of student’s personal property may be searched when school officials have individualized reasonable suspicion that such personal property contains contraband in violation of school rules or state or federal law.” Id. There is no evidence in the record of this matter that any deliberate conduct of the School Board was the moving force causing Melanie Romero to require searches at the Prom that violated the School Board’s Code of Conduct. Undisputed Fact No. 11.

The School Board is not liable for Melanie Romero’s alleged violation of Plaintiffs’ Fourth Amendment rights by requesting that all attendees at the Prom undergo possession and pat-down searches.

MSJ at 14-15 (emphasis in original).

The SFPS Defendants contend that, if the Court finds that they are liable for Romero’s actions, it should limit the Plaintiffs’ recovery to nominal damages. See MSJ at 15. • They point to the Plaintiffs’ histories with patdown searches at other school events, and contend that they did not object

to undergoing a pat-down search at the Prom, or complained regarding its scope, at the time of the search. Indeed, the only complaint made that night about searches was Candice Herrera’s complaint concerning the confiscation of contraband (the pill) that she brought to the Prom in violation of school rules. Though the Plaintiffs have testified that they were injured by the searches each claims she underwent (that included the ASI guard grabbing or “cupping” her breasts, shaking her breasts, feeling around her breasts, putting fingers inside her dress or bra, pulling her bra, lifting her dress above her knees or to mid-thigh and/or touching bare skin on her arms or legs), none have claimed to be injured in any way, let alone traumatized, by a pat-down search without groping.

MSJ at 14-15. In the SFPS Defendants’ view, the Plaintiffs have not shown that they were injured by undergoing “a normal administrative pat-down search that did not include improper touching.” MSJ at 15. Accordingly, the SFPS Defendants ask the Court to limit the Plaintiffs’ recovery to nominal damages on any claim that the School Board is liable for Romero’s actions. See MSJ at 16.

The SFPS Defendants finally argue that no evidence tends

to show that conduct properly attributable to the School Board was the moving force causing Plaintiffs’ alleged injuries resulting from pat-downs, which allegedly involved grabbing or cupping breasts, shaking breasts, feeling around breasts, putting fingers inside dresses or bras, pulling bras, lifting dresses above the knee and/or touching bare skin on her arms or legs.

MSJ at 17. They also contend that no evidence shows that the School Board should have expected that ASI New Mexico guards “would touch the breasts or bare legs, or pull female attendees’ bras, as the searches at earlier CHS dances and similar off-campus events did not involve such conduct.” MSJ at 17. They contend that the Code of Conduct does not authorize pat-down searches of the sort of which the Plaintiffs complain, and that the evidence does not show “that groping, if it did occur, was caused by any policy or practice of the School Board.” MSJ at 17. In its view, “[tjhere is not sufficient evidence to send the School Board to trial and expose it to liability for alleged groping during the pat-down searches and such claims should be dismissed with prejudice.” MSJ at 17. It notes that, under Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982), “[a] state, its agencies or officials may not be assessed liability for the acts of a private individual, except by a 'fair attribution’ of those actions to the State.” MSJ at 17 (quoting 457 U.S. at 936-37, 102 S.Ct. 2744). In sum, in its view, the Court should grant summary judgment on Count I as against the SFPS Defendants. See MSJ at 17-18.

After reviewing the summary judgment standards, see Response at 14-15, the Plaintiffs recast the SFPS Defendants’ position as follows:

This Court has already found that requiring Plaintiffs (and all other students) to undergo suspicionless pat-down searches at the 2011 Capital High School prom was unconstitutional and violated Plaintiffs’ Fourth Amendment rights. Defendant SFPS nevertheless attempts to evade liability for these constitutional violations based on: (1) the claim that no formal SFPS policy, provision in its Code of Conduct, or “deliberate choice” of a final decision-maker specifically authorized the suspicionless' searches at prom; (2) the assumption that SFPS’s potential liability is limited to a “normal administrative pat-down search” as opposed to the invasive searches Plaintiffs describe; and (3) the suggestion that Plaintiffs somehow consented to the unconstitutional searches. None of these arguments has merit.

MSJ at 15-16 (citations removed). After reviewing the Court’s decision “that the suspicionless pat-downs at prom violated Plaintiffs’ Fourth Amendment rights” and the basic case law undergirding that decision, see Response at 16-20 (citing Romero MOO passim ), the Plaintiffs note that, in the Romero MOO, “the Court limited its analysis to the question of whether a pat-down of outer clothing violated the Constitution,” and argue that “SFPS’s further, and more intrusive, practice of allowing students’ bras to be searched is also unconstitutional,” Response at 20. The Plaintiffs note that “the Supreme Court [of the United States] has held that a search requiring a student to pull her bra away from her body was unconstitutional even where school officials had individualized reasonable suspicion that the student possessed contraband.” Response at 20-21 (citing Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 129 S.Ct. 2633, 174 L.Ed.2d 354 (2009)). The Plaintiffs contend that, because “[t]he unconstitutionality of the searches of Plaintiffs [has] been established, the only remaining liability question is whether a reasonable jury could find SFPS liable for those constitutional violations under § 1983.” Response at 21.

In the Plaintiffs’ view, two assumptions that undergird the SFPS Defendants’ argument are faulty:

(1) that § 1983 liability may only be based on SFPS’s formal search policies or a specific decision by the Board ordering the searches at the 2011 prom; and (2) that SFPS can only be held liable for a “non-invasive” “normal” pat-down as opposed to the intrusive searches performed on Plaintiffs.

Response at 21. As to the first assumption, the Plaintiffs contend that the SFPS Defendants are liable for their “informal, longstanding practice of conducting suspicionless pat-downs of all students entering prom regardless of whether that practice was documented in its Code of Conduct or whether the Board ever made an identifiable ‘deliberate choice’ to formally adopt that practice.” Response at 21. They resist the SFPS Defendants’ conflation of “the requirement that SFPS’s custom or practice be the cause or ‘moving force’ behind the violation with a requirement that the searches be the result of a specific or formal policy or ‘choice’ of the School Board.” Response at 22. In their view, they need not show such an affirmative choice; “[t]o the contrary, when a challenged action is taken pursuant to a ‘custom or usage’ a § 1983 plaintiff can establish liability ‘without adducing evidence of an affirmative decision by policymakers.’ ” Response at 22 (quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 502 n. 10, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986)). They note that Monell v. N.Y.C. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), itself “provid[es] for § 1983 liability for an established custom ‘even though such a custom has not received formal approval through the body’s official decisionmaking channels.’ ” Response at 22 (citing Monell v. N.Y.C. Dep’t Soc. Servs., 436 U.S. at 690-91, 98 S.Ct. 2018). The Plaintiffs point to Romero’s Motion and argue that

SFPS states that “[a]t the time of the [2011 Capital High School] Prom, and for a number of years prior to the prom, the two high schools in the Santa Fe Public School District, [Capital High School] and Santa Fe High School, had a practice of having guards provided by ASI perform pat-down searches of all attendees at proms and similar events • • • U”

Response at 22-23 (quoting Romero MSJ). They note that the blanket pat-down policy “was applied at every prom from at least 2004 through the 2011 Capital High School prom — an uninterrupted practice of suspicionless pat-downs carried through at least sixteen SFPS proms.” Response at 23 (citing, e.g., Archuleta Depo. Vol. II at 168:2-169:8). In their view, “[t]he only alteration made to this search protocol between 2004 and 2011 was the introduction of wand searches, such that all students would be subjected to three searches (pat-down, wand, and possession) instead of only pat-downs and bag searches.” Response at 23 n. 1 (citing Archuleta Depo. Vol. II at 183:8-12). They note that, “[y]ears before the 2011 prom, SFPS officials (including then-Superintendent Rendon) in a meeting with ASI officials established that patdown searches were to be conducted of all students at prom as part of SFPS’s standard search protocol.” Response at 23 (citing, e.g., Archuleta Depo. Vol. II at 168:2-169:8; id. at 182:2-11). In their view, “[b]ased on SFPS’s directive, it was clear to ASI that such searches had ‘always’ been conducted and would ‘continue to be’ part of SFPS’s customary practice.” Response at 24 (citing, e.g., Johnson Depo. at 84:10-16; id. at 85:16-21; id. at 124:20-25; id. at 130:21-131:8). The Plaintiffs submit that “SFPS’s customary search practice includes bra searches of female students,” that “written Pat Down Guidelines applicable to student searches specifically required bra searches, and both SFPS administrators and ASI security guards were trained that pat-down searches were to be conducted in a manner consistent with the Guidelines,” and that “[t]he principals of Capital High School and Santa Fe High School reviewed the written Pat Down Guidelines.” Response at 24.

The Plaintiffs note that, in their view, “Romero implemented SFPS’s established custom and practice of suspicionless pat-down searches at the 2011 Capital High School prom by instructing ASI and SFPS personnel to conduct pat-downs, wandings, and possession searches of all students.” Response at 24. They state that, “[c]onsistent with SFPS’s customary practice and Romero’s directive, ASI employees patted down all students entering the prom, including Plaintiffs,” and that, “[f]ollowing SFPS’s standard search procedure, the pat-down searches conducted at the 2011 Capital High School prom also included searches of the bra area.” Response at 24-25. They note that, after the Plaintiffs expressed their concerns about the searches conducted at the 2011 CHS prom, the “Executive Team” considered changing search policies, but decided to keep them in place. See Response at 25. Moreover, they note that “Superintendent Gutierrez indicated she had no objection to any aspect of the Pat Down Guidelines (which included bra searches).” Response at 25.

In the Plaintiffs’ view, this “persistence in maintaining its blanket pat-down protocol further confirms that suspicionless pat-downs were a custom and practice of SFPS.” Response at 25-26. They characterize Connick v. Thompson, — U.S. -, 131 S.Ct. 1350, 179 L.Ed.2d 417 (2011), as “holding that a city’s choice to retain its training program alter being on notice that the existing program resulted in constitutional violations would be ‘the functional equivalent of a decision by the city itself to violate the Constitution,’'.” Response at 26 (quoting Connick v. Thompson, 131 S.Ct. at 1360 (internal citations omitted in Response), and quoting Henry v. Cnty. of Shasta, 132 F.3d 512, 519 (9th Cir.1997) (“[P]ost-event evidence is not only admissible for purposes of proving the existence of a municipal defendant’s policy or custom, but is highly probative with respect to that inquiry”).) The Plaintiffs maintain that “SFPS’s admission that SFPS maintained a longstanding ‘practice’ of conducting suspicionless pat-downs (including bra searches) of all students at SFPS proms satisfies the first element of the § 1983 analysis: establishing the existence of a policy, custom, or practice.” Response at 26. “Accordingly, the searches of Plaintiffs conducted pursuant to SFPS’s longstanding practice of subjecting all prom attendees to suspicionless pat-downs are attributable to SFPS regardless of whether SFPS’s written policies provide for blanket pat-down searches or SFPS made a specific decision to order the searches at prom.” Response at 27.

The Plaintiffs next attack “[t]he second assumption underlying Defendant’s argument — that SFPS is somehow only liable for ‘normal administrative pat-down search[es].’” Response at 27 (quoting MSJ at 16-17) (alterations in Response). In-their view,

[t]he invasive searches Plaintiffs endured are fully attributable to SFPS as the natural and foreseeable consequence of its established search protocol. Indeed, where bra searches were part of SFPS’s established pat-down practice, and those conducting pat-downs. were specifically instructed to be vigilant of contraband being hidden in precisely the locations where Plaintiffs were invasively searched (in the bra and inner thigh areas), the intrusive searches of Plaintiffs’ searches were foreseeable, if not expected.

Response at 27. They contend that “ ‘[t]ort defendants, including those sued under § 1983, are responsible for the natural consequences of their actions,’ and may be ‘held liable for those consequences attributable to reasonably foreseeable intervening forces, including the acts of third parties.’ ” Response at 27 (citing Kerman v. City of New York, 374 F.3d 93, 126 (2d Cir.2004)) (internal punctuation and quotations omitted from Response). They argue that, “[e]ven where a third party (here, the ASI guards performing searches) exercises ‘independent judgment in determining whether to follow a course of action recommended by the defendant!,]’ that does not absolve the defendant [of] liability for the consequences of that course of action.” Response at 28 (quoting Kerman v. City of New York, 374 F.3d at 127).

With these standards in mind, the Plaintiffs argue that they have set forth “sufficient evidence to support a finding that SFPS’s established pat-down search practice included the pulling and shaking of students’ bras, and that the bra areas of Plaintiffs were searched as a result of that established practice.” Response at 28. The Plaintiffs assert that “[t]he parties agree that bras were pulled and bras and/or breasts were shaken at the 2011 ' prom, they merely disagree as to the way in which the bra searches were conducted.” Response at 28-29. In their view, “[r]egardless of how these factual disputes are resolved, SFPS is liable for the intrusive bra searches of Plaintiffs because they foreseeably flowed from SP-FS’s search practices.” Response at 29. The Plaintiffs contend that, “[b]ecause the evidence suggests that Plaintiffs’ bra searches were conducted as part of SFPS’s custom and practice of suspicionless pat-downs, the bra searches of Plaintiffs are attributable to SFPS,” and further argue that “[t]he inclusion of bra searches in SFPS’s standard pat-down procedure alone requires rejection of SFPS’s attempt to limit its liability to ‘normal’ pat-downs.” Response at 29.

The Plaintiffs assert that “[t]he manner in which ASI guards were instructed to carry out SFPS’s search protocol invited the additional type of invasive elements of the pat-downs Plaintiffs experienced.” Response at 29. They elaborate:

The written Pat Down Guidelines (which were reviewed by SFPS principals and the Superintendent) specifically instruct those performing pat-downs to “be vigilant” in their searches and remind that contraband may be hidden in the bra area between a student’s breasts. Such instructions invite guards seeking to employ the required vigilance to conduct their searches in such a way as to ensure that no contraband hidden around a student’s breasts could escape detection. Because personally pulling and shaking the student’s bra and/or feeling around and under her breasts provides greater assurance that no contraband goes undetected, it is foreseeable that guards tasked with performing mandatory bra searches on student after student might conduct more invasive searches in an attempt to quickly identify contraband concealed in the bra area.

Response at 29 (citations omitted). Moreover, they contend that, because the “Pat Down” Guidelines warned guards that students may conceal contraband in their inner thighs, it was “likely that guards would check students’ inner thighs for contraband (which is most easily accomplished by lifting the student’s dress and/or feeling with one’s hand).” Response at 30. They submit that “[t]he more intrusive aspects of Plaintiffs’ searches, including the guard cupping breasts, putting fingers into cleavage, and rubbing inner thighs thus foreseeably flow from SFPS’s search protocol.” Response at 30.

The Plaintiffs point to the Court’s decision in Train v. City of Albuquerque, 629 F.Supp.2d 1243, 1253-55 (D.N.M.2009) (Browning, J.), for the proposition that where evidence supports a finding of foreseeability, whether a result is foreseeable is a fact question for the jury:

This Court’s decision in Train v. City of Albuquerque is particularly illustrative. In Train, a plaintiff was subjected to an illegal search that resulted in discovery of a firearm and the plaintiff was charged and incarcerated pending trial for the firearm before the firearm was suppressed as the result of the unlawful search. 629 F.Supp.2d at 1253-55. This Court héld that there was sufficient basis to find that the litigation expenses, incarceration, and emotional distress associated with the firearm prosecution “foreseeably flow[ed]” from the illegal search, requiring that the determination of foreseeability be left to a jury. Id.

Here, the connection between SFPS’s custom and practices of suspicionless pat-downs (including bra searches) is far less attenuated than the connection found sufficient to support a finding of foreseeability in Train. SFPS required students’ bra areas to be searched and left those conducting the searches with instructions that invited precisely the type of intrusive searches experienced by Plaintiffs. The highly invasive pat-downs that resulted were the natural and foreseeable consequences of SFPS’s search protocol.

A ruling limiting SFPS’s liability to a “normal” pat-down would thus be contrary to the record and the case law and should be rejected accordingly.

Response at 30.

The Plaintiffs then turn to the SFPS Defendants’ argument that their actions were not the moving force behind the Plaintiffs’ constitutional injuries:

The claim that Defendant’s practice of suspicionless pat-downs did not “cause” the suspicionless pat-downs of Plaintiffs is simply untenable. To establish causation under § 1983, a plaintiff need only show that the defendant’s policy, custom, or practice was the “moving force” behind the constitutional violations at issue. See, e.g., Myers v. Okla. Cnty. Bd. of Cnty. Comm’rs, 151 F.3d 1313, 1316 (10th Cir.1998). “The requisite causal connection is satisfied if the defendant set in motion a series of events that the defendant knew or reasonably should have known would cause others to deprive the plaintiff of her constitutional rights.” Snell v. Tunnell, 920 F.2d 673, 700 (10th Cir.1990) (internal citation omitted).

Here, SFPS’s custom and practice of requiring suspicionless pat-down searches of all students entering prom led to Plaintiffs’ unconstitutional pat-downs. Because, as the Court has already found, SFPS’s practice of suspicionless pat-downs itself violates the Constitution, the causal connection between that practice and the violation of Plaintiffs’ Fourth Amendment rights is “readily apparent.” See City of Springfield, Mass. v. Kibbe, 480 U.S. 257, 267[, 107 S.Ct. 1114, 94 L.Ed.2d 293] (1987); Bd. of Cnty. Comm’rs of Bryan Cnty., Okla. v. Brown, 520 U.S. 397, 408[, 117 S.Ct. 1382, 137 L.Ed.2d 626] (1997).

Response at 31. They contend that, regardless that ASI New Mexico searched the Plaintiffs, “[t]he fact that the pat-down searches were physically performed by ASI personnel does not break the causal chain or absolve SFPS from liability for the searches.” Response at 31. In their view,

[t]he Eleventh Circuit’s decision in [Focus on the Family v. Pinellas Suncoast Transit Auth., 344 F.3d 1263 (11th Cir.2003),] illustrates this point. In Focus on the Family, a private company that had contracted with the municipal transit authority to place advertisements on transit bus shelters for third parties, refused to post an advertisement submitted by a religious organization based on its content. Focus on the Family, 344 F.3d at 1267-1270. The Eleventh Circuit held that there was sufficient evidence to support a § 1983 claim against the municipal transit authority based on evidence that the municipal entity requested that the private company reject certain types of advertisements (including those with religious content). Id. at 1278-79. Because the municipal transit authority had directed that the private entity reject certain advertising content, there were sufficient grounds to find it liable for the private entity’s rejection of signs based on the municipality’s unlawful content restrictions.

Similarly here, the pat-downs ASI performed were conducted pursuant to SFPS’s directive as part of SFPS’s search protocol and were but one component of a larger search process that was jointly carried out by ASI and SFPS staff. Accordingly, there is ample basis for a reasonable jury’s finding that SFPS’s custom and practice caused Plaintiffs’ constitutional violations regardless of whether SFPS staff or ASI staff actually performed the pat-downs.

Response at 32 (selected citations omitted).

They note that, to the extent that the SFPS Defendants suggest that the Plaintiffs’ notice that they would be subjected to pat-down searches is tantamount to consent to undergo the searches, the Court rejected the SFPS Defendants’ suggestion of consent in the Romero MOO, because “[t]he government may not condition a benefit (such as attending prom) on waiving a constitutional right (including the Fourth Amendment right to be free from unreasonable searches).” Response at 33 (citing, e.g., Romero MOO at 96-102).

With respect to the damages argument, the Plaintiffs contend that

SFPS’s claim that Plaintiffs are only entitled to nominal damages is premised on the erroneous assumption that SFPS’s liability is somehow limited to a “normal administrative pat-down search.” See id. As detailed [above,] that argument fails as contrary to the record and the governing caselaw, and SFPS is subject to liability for the highly invasive pat-downs Plaintiffs experienced. Accordingly, in order to limit SFPS’s liability to nominal damages, the Court would have to find that Plaintiffs suffered no injury whatsoever from the highly invasive and unconstitutional searches they experienced at prom. The record testimony recounting Plaintiffs’ injuries precludes such a finding. In short, “this case is not — at least not as a matter of law — a ‘one dollar’ case.” Train, 629 F.Supp.2d at 1255.

Response at 33-34. The Plaintiffs argue t