Page 49 - TPA Journal January - February 2019

Bustillos alleged § 1983 claims against the rowly defined exceptions.” “One important
Doctors and Nurses in their individual capacities, exception is the border search doctrine,” which
as well as against the District on a county liability allows “a governmental officer at the internation-
theory. Because disposition of the individual al border [to] conduct routine stops and searches
liability claims resolves both the individual and without a warrant or probable cause.” Id.
county liability causes of action, we address only Nonetheless, for a “non-routine” search at the bor-
those claims in detail. Before doing so, however, der, officials must “reasonably suspect the travel-
we discuss whether Bustillos’ claims for er is smuggling contraband.” Cavity searches,
substantive due process violations are cognizable strip searches, and x-ray examinations are all
as alleged. “non-routine.” “Because [the District] is a state
hospital, the members of its staff are government
Bustillos alleges that the searches violated
actors, subject to the strictures of the Fourth
substantive due process standards because they
Amendment.”
were conducted “in a manner that shocks the
conscious.” We need not reach this issue. The searches conducted at the Hospital were all
Bustillos’ substantive due process claims are not non-routine. The Doctors and Nurses therefore
cognizable with her Fourth Amendment needed reasonable suspicion of drug smuggling to
allegations. constitutionally justify those searches. Whether
the Doctors and Nurses had reasonable suspicion
The Supreme Court has “always been reluctant to turns on an issue of first impression in this circuit:
expand the concept of substantive due process.” Must medical staff establish their own, indepen-
“Where a particular Amendment ‘provides an dent reasonable suspicion where law enforcement
explicit textual source of constitutional officers either state that sufficient suspicion exists
protection’ against a particular sort of government or request the search? We conclude they do not. A
behavior, ‘that Amendment, not the more medical professional has no constitutional duty to
generalized notion of ‘substantive due process,’ independently evaluate the Fourth Amendment
must be the guide for analyzing these claims.’” determinations of law enforcement officers.
Bustillos’ substantive due process claims rest on Nonetheless, medical staff must, either through
the same underlying acts that constituted the their own independent determination or through
alleged unlawful search and seizure. Because the reliance on law enforcement officials, have suffi-
Fourth Amendment “fully embraces” these cient suspicion to justify each search in a series of
allegations, the district court did not err in non-routine searches. Though there is no Fifth
dismissing the substantive due process claims. Circuit case on point, our sister courts have held
that medical professionals do not violate the
Bustillos argues that the Doctors and Nurses
Constitution where they rely on law enforcement
violated her Fourth Amendment right to be free
officers’ Fourth Amendment determinations. This
from unreasonable searches and seizures by
approach is sensible. “Nurses and other medical
detaining her in order to conduct x-ray, pelvic, and
personnel have neither the training nor the infor-
rectal exams without reasonable suspicion of
mation that would be necessary to second-guess
criminal activity. The district court held those
police determinations regarding probable cause,
allegations cannot overcome the Doctors’ and
exigent circumstances, and the like.”
Nurses’ qualified immunity because the right at
issue was not clearly-established. We agree and However, in each of these cases, the officers pre-
affirm on that ground. Nonetheless, we take this sented the medical professionals with either a
opportunity to clarify the constitutional duties of warrant, direct request for a specific search, or

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