Bull v. City and County of San Francisco

for 3 and and remand consider- Branch and either tions Executive between Exemptions carri- ation of consistent with the telecommunications these Congress or ers, correctly court Opinion. the district this to which as not apply. 5 did Exemption concluded part, AFFIRMED in REVERSED remand the district Accordingly, part, REMANDED VACATED and 5 to examine each Exemption court on own part. Each shall bear its costs party of documents to deter category contested appeal. sender(s) and re

mine its actual whether in inter-agency it an or

cipientes) render document, keeping in mind

tra-agency concerning wheth

contours of the doctrine President

er Office the Executive compo other White House certain Zern, Mary BULL; all others Jonah purposes. for FOIA “agencies” nents are similarly situated; Timbrook; Laura 552(f)(1) (2006) See, § e.g., 5 U.S.C. Leigh Fleming; Johnson; Charli (“ 551(1) as defined section ‘[A]gency’ Micky Bronson; Mangosing; Alexis any depart includes executive title Marcy Corneau; Giampaoli, Lisa ment, military department, Government Plaintiffs-Appellees, corporation, corpo Government controlled ration, establishment in the exec or other (including utive of the Government branch AND OF SAN FRAN CITY COUNTY President.)”); County of the CISCO; the Executive Office Francisco Sher San Reporters Kissinger v. Comm. Free Department; Hennessey, Michael iffs for Press, 136, 156, 445 U.S. dom the County Sheriff; Sher Francisco San (1980); L.Ed.2d 267 S.Ct. Judicial Deputies, Defendants-Appellants. iffs Inc., F.3d at For Watch 1113-22. Bull; Mary Zern, and all Jonah others those the district court classi documents similarly situated; Timbrook; Laura inter-agency intra-agency, fies as Johnson; Leigh Fleming; Charli will then have to district court consider Micky Bronson; Mangosing; Alexis government’s asserted whether Marcy Corneau; Giampaoli, Lisa withholding. allow Kla privileges See Plaintiffs-Appellees, math, 8, 121 1060. III. CONCLUSION City Francisco; County of San grant affirm the district We court’s County Depart Francisco Sheriffs EFF summary judgment for to the ment; Hennessey, Sheriff; Michael of names and email addresses un- release County Depu San Francisco Sheriffs 6, though Exemption der we reverse FOIA ties, Defendants-Appellants. as to for email addresses which other 06-15566, 05-17080. Nos. identifying agent information at issue Appeals, United States Court of is available in the communication. This Ninth Circuit. necessarily may order result in disclo- sure for which the government of names 26, 2009. Argued March withholding pursuant Ex- argues also April 2009. Submitted emption 3, because we vacate the district 9, 2010. Filed Feb. summary judgment court’s denial of grant summary government judgment EFF as to Exemp- FOIA Herrera, Attorney, City

Dennis J. Chief Trial Hoeper, Attorney, Joanne Dan- ny (argued), Complex Chou Chief of (ar- Special Robert A. Litigation, Bonta gued), City Attorney, B. Deputy and David Newdorf, Legal, appel- Newdorf for the lants. (argued) E. Merin

Mark and Cathleen Williams, Merin; Law A. Office Mark E. and Andrew Charles Schwartz and Thom- Seaton, Meadows, Casper, as A. Schwartz Cook, appellees. & summary judgment KOZINSKI, motion partial tiffs’ ALEX Chief Before: liability. to Fourth Amendment RYMER, ANN Judge, PAMELA THOMAS, P. SUSAN R. SIDNEY I WARDLAW, GRABER, KIM McLANE GOULD, MARSHA facility unique place M. S. “A is a RONALD detention RAWLINSON, security B. BERZON, fraught dangers. JOHNNIE with serious CLIFTON, money, drugs, weapons, and Smuggling R. SANDRA S. of RICHARD SMITH, common other contraband is all too an IKUTA, RANDY Circuit and N. v.Wolfish, 441 U.S. occurrence.” Bell Judges. (1979). 447 99 S.Ct. 60 L.Ed.2d Indeed, drugs to introduce and “attempts IKUTA, Judge: Circuit [prison] premises into other contraband Department Francisco Sheriffs The San problems perplexing ... is one of the most in county jails Fran San oversees six v.Palmer, 468 prisons.” of Hudson U.S. Area, through which approxi cisco Bay 517, 527, 3194, 82 393 104 S.Ct. L.Ed.2d 50,000 are and individuals booked mately Bazzetta, (1984); see 539 Overton To processed year. address a serious each 126, 134, 156 L.Ed.2d 162 in the smuggling problem of contraband (2003) smuggling drug and (“Drug use in Hennessey Michael jail system, Sheriff problems.”); are Block intractable policy requiring stituted 576, 588-89, Rutherford, 104 of all who were be introduced arrestees (1984) (“We 3227, L.Ed.2d 438 can jail population into Francisco’s San judicial take that the unauthorized notice housing. action for custodial class problem plagues use of is a narcotics face, a challenging this on its lawsuit virtually every and detention center penal it district court held violated country.”). San Francisco’s six rights of persons Fourth Amendment jails They county exception: strug- are no searched, Hennessey and denied Sheriff serious, problem gle ongoing with a of qualified immunity. Hennessey, the San drugs, weapons, and other contraband be- Department, and the Francisco Sheriffs ing smuggled jail into facilities. The rec- City brought County and of San Francisco pages of ord contains hundreds of incident interlocutory appeal, challenging April reports, indicating that between immunity.1 qualified A divided denial of of and December the San panel this court affirmed the district of jail Francisco general population resulted denial, City County Bull v. & court’s 1,574 of discovery in the of items contra- of Francisco, San 539 F.3d 1193 Cir. band, including 662 assorted controlled 2008), granted rehearing and we en banc. substance 106 shanks and other pills, that San screwdriver, Because we conclude Francisco’s jail-made hand- weapons, plaintiffs’ cocaine, policy did not violate constitu keys, grams cuff of rock 2.75 42.88 cocaine, rights, grams tional we reverse the district grams powder 6.70 of Hennessey’s mo of tar methamphetamine, grams court’s denial of Sheriff 6.24 her- oine, marijuana, ecstasy summary judgment qual grams tion for based on 71.93 immunity, doing necessarily pills, pipes, hypodermic ified nee- and so assorted dle, homemade grant gallons and 24 alcohol plain- reverse the district court’s collectively Hennessey, otherwise refer to defendants 1. We to Sheriff the Sheriff's refer City County Department, and the of San "San Francisco.” appropriate, name when Francisco court, presence yet known as “Pruno.” The of such weighed by jury. safety contraband threatens the health and Francisco has vigorously denied the allega- inmates, officers, corrections Nevertheless, tions the dissent recites. if employees. The record reports contains true, allegations these quite serious, an gen- the death of inmate housed even absent the dissent’s embellishments.2 population drugs eral from obtained within Such abuses would contravene San Fran- prison, and of one detainee who set her cisco’s policy, written which required that lighter smuggled clothes on fire with a into searches be conducted in a “professional cell, of another who mutilated himself manner,” prohibited officers of the staples similarly jail, with secreted into the opposite present. sex to be If these alle- and of a third attempted who suicide with gations true, were found to be the victims smuggled jail razor-blades into the in his of those abuses would strong have claims cavity. jail rectal administrators have against San Francisco. that, concluded based on their experience, But the are not making such greatest opportunity “the for the introduc- claims. emphasized Plaintiffs throughout drugs tion of weapons jail and into the their briefing “brought this ac- at point occurs when an arrestee is tion challenge to policy blanket and and, jail received into the for booking practice searching prearraignment ar- thereafter, housing.” In light of this con- ...,” restees not the individual cases. clusion, Hennessey Sheriff developed and Thus, plaintiffs relied “almost exclusively implemented a “Booking policy. Searches” depositions on defendants’ and pol- written This authorized officers to icies as the basis the material facts” in search an arrestee when one of eleven order to avoid disputed issues of fact that applied, including conditions the condition would defeat here, summary judgment. namely, at issue when person “[a] assigned custody by a level [was] Classifi- purposes For of this appeal, narrow we cation and scheduled for custodial hous- upon are called to assess the constitution- ing.” itself, ality not violations of Plaintiffs’ facial challenge Booking to the thus, that policy; court, as did the district Searches is the issue before us we challenged must assume the policy was interlocutory appeal. This is an scrupulously. followed important point, because the dissent draws Although the dissent’s dramatic ac- upon unproven allegations give to a shock- emotions, counts stir the they are mislead- ing inflammatory account of mistreat- ing ultimately irrelevant to the case officials, by jail ment including forcible before us. Not a single long one of the strip searches conducted in an abusive and parade of victims by described the dis- violent manner. The dissent’s sensational- Bull, Mary Johnson, Charli Bernie ist account of individual factual allegations sent— Galvin, Marrón, Timbrook, Michael irrelevant, than Laura worse as it invites us to Mangosing, Leigh Fleming, decide this case on the Salome disputed basis Mi- Ranleau, factual chelle yet presented by issues not De or Deborah Flick— parties, yet by considered the district appeal.3 have claims at issue in this Rath- doubt, 2. There is no as the Court stated in 3. The claims of each of these have individuals Bell, manner, security guard may judicially that "on occasion a been resolved in some fashion,” appeal example, conduct the search in an abusive are not on here. For recognized an “[s]uch abuse cannot be condoned.” district court that “substantial evi- supported finding 99 S.Ct. 1861. dence in the record” a County tempo- Jail No. 9 is individual Because highlight the dramatic er than holding rary facility equipped mined from the rec- with be intake anecdotes can ord, beds, eligi- to the issue limit our discussion but those arrestees not cells no challenge actually plaintiffs’ jail before us: were transported ble release policy. We strip-search jail’s written were facilities. Arrestees housing other, ad- questions factual leave facility’s general into the then transferred court the first district dressed de- jail population, pretrial which included instance. tainees convicted inmates. Pursuant Booking policy, to the these indi- Searches A strip searched to admis- prior viduals were issue, arres- period new During population into in order to sion County Francisco entering tees into prevent smuggling contraband County system transported were the facilities. intake and release temporary No. Jail policy, Under the search was pat-searched, they were facility, where “in a manner in performed professional detector, a booked into with metal scanned by privacy” an area an officer of arres- system, fingerprinted. and The the arrestee. The arrestee same sex as in holding then cells. placed tees were required arrange remove some was “to or given bail were ac- eligible post Those clothing permit or all of his or her so as to afforded to 12 telephone up to a and cess underclothing, inspection a visual their release on bond. hours secure breasts, genitalia per- or such buttocks of intoxi- because Individuals arrested in- son.” “a visual The search included when became cation were released hair, hands, mouth, ears, spection of the statutorily who were eli- sober. Arrestees folds, armpits a thor- See skin as well as [and] cited gible were and released. Cal.Pe- ough clothing search of all items.” San § of these nal Code 853.6. None arrestees E-03, Dep’t Francisco Sheriffs Proc. No. strip challenged searched under 03(III).4 a The authorized visual policy. E— strip they appear papers; proposed ment Sec- "reasonable existed to search” in Mangosing, and thus Complaint, rejected Bull and denied sum- ond which was Amended mary judgment to them on their individual by the district court. claims. that all John- Plaintiffs conceded time-barred, claims and not son’s were did 4. The conduct- written instructions for oppose summary judgment in Francisco’s ing strip stated: searches oppose favor. San Francisco did not sum- body Strip 1. include a visual mary judgment in favor of Timbrook. The cavity A not in- search. search does granted summary judgment district court Hennessey physical body cavity favor of Sheriff on the claims of clude a search. Flick, searched, Fleming and who were like pro- 2. will be The search conducted only pursuant Mangosing, Bull and privacy an so manner area of fessional "safety policy. policy, cell” Under this in- by per- cannot be the search observed subjected mates or arrestees "were to blanket participating in sons not the search. search(es) body cavity visual incident searching 3. The officer will instruct placement 'safety ain cell' at of the San arrestee to: County jails.” Francisco district court clothing. a. Remove his/her Hennessey qualified had im- held Sheriff arms their b. Raise above head his/her munity challenges policy. from to that Gal- degrees. and rotate vin, Marrón, are even and De Ranleau not c. and hands To bend forward run his/her action, and, plaintiffs accordingly, in this through hair. his/her plaintiffs' summary-judg- never mentioned in B only; officers were not allowed to body physically touch inmates’ cavities. April Mary In Bull and a class of Strip searches conducted under similarly situated filed a class Booking signifi- uncovered Searches § action complaint under U.S.C. 1983 in cant amounts of contraband hidden against City district court County example, on arrestees’ bodies. For as not- Francisco, Depart- of San the Sheriffs court, ed the district San Francisco ment, Hennessey Sheriff in his individual “produced April evidence that from capacities, and official and certain un- through April searches at Coun- deputies. named Sheriffs Plaintiffs al- ty discovery Jail No. 9 resulted in the of 73 leged that San Francisco’s illegal drugs drug parapherna- cases of policy violated their Fourth Amendment body lia hidden cavities.” Contraband right to be free from unreasonable discovered in arrestees’ cavities in- searches and their Fourteenth Amend- keys, syringes, cluded handcuff crack rights process ment to due privacy.5 heroin, crack-cocaine, cocaine, pipes, rock an order issued June marijuana. In the same time period, granted district court plaintiffs’ motion to strip searches uncovered various concealed certify a class under Federal Rule of Civil weapons, including folding a seven-inch 23(b)(3) Procedure and defined the class as knife, knife, folding pair a double-bladed including persons all who “were arrested scissors, jackknife, of 8-inch a double- any charge involving weapons, con- nail, edged dagger, glass shards. substances, charge violence, trolled or a Jail officials found contraband on arrestees involving and not parole violation of or a offenses, charged range with a of including (where violation of probation consent to public non-violent offenses such as drunk- search is a probation), condition of such enness, nuisance, public and violation of a subjected and who were to a blanket visual court example, order. For a man arrested body cavity strip defendants be- on a public warrant for nuisance was found arraignment fore at a San Francisco Coun- smuggling plastic bag suspected of co- ty jail facility without any individualized powder. caine The parties dispute wheth- reasonable con- were any discovery er of contraband can be cealing contraband.”6 members, conclusively but, tied to class below, partial discussed a resolution of this June moved for dis- pute holding today. is not material to our summary judgment on their claims that searching thoroughly d. To turn head first to the left and 5. The officer will his/her right searching clothing,

then to the so officer search the arrestee’s undercloth- shoes, ing, inspect can arrestee's ear orifices. socks. search, completion 6. At the open of the e. To mouth and run his/her his/her areas; searching officer will instruct the finger upper gum arrestee over the and lower to dress. tongue then raise so the officer can his/her inspect the interior of the arrestee's mouth. alleged 5. Plaintiffs also violations of certain applicable. Remove dentures if provisions of California law that are not at foot, f. To turn around and raise first one appeal. issue in this then the other so the officer can check bottom of each foot. 6. The class also included arrestees who “were searching visually 4.The officer will in- subjected body cavity to blanket visual breasts, buttocks, spect the arrestee’s search(es) placement 'safety incident to genitalia. County cell’ at the San of Francisco jails.” validity "safety-cell The of the search” concealing arrestee contra strip particular former Francisco’s San band, intro respect if the will be with even arrestee facially unconstitutional was general population different of eight into class duced to members Id.; facility. Thompson classified arrestees see including detention categories, general jail population. housing Angeles, in the Los 885 F.2d City for Ackerman, partial Cir.1989); for Hennessey (9th moved also Giles v. Sheriff (9th Cir.1984) curiam), that he was judgment, arguing summary (per immunity respect qualified with grounds by Hodgers- entitled to other on overruled Vina, claim to the Durgin v. dela 199 F.3d housing Cir.1999) (en persons banc). classified applicable 1n.

was unconstitutional. Accordingly, policy, to that regards the district September

On court Hennes- the district denied Sheriff disposing an order court issued summary judgment motion for sey’s motions, subse- summary judgment but Bull, 2006 qualified immunity. ground motion Francisco’s quently granted San 449148, at *16. court stated that WL February reconsideration. On abundantly ... clear after “[i]t unpub- an the district court issued Thompson placement order, part granting lished amended ‘by justify a jail population itself cannot ” part party’s each motions. denying Id. (quoting Thompson, search.’ Francisco, City & County Bull v. 1447).8 Hennessey F.2d at Sheriff 03-01840, C 2006 WL No. raising single issue of appealed, 2006). (N.D.Cal. order is the Feb. This ruling. qualified-immunity subject our review.7 II plaintiffs’ court mo- granted

The district judgment with “We review de novo the district partial summary tion for searching immu regarding qualified to the court’s decision respect Parks, housing, nity.” Motley hold- members classified for class (9th Cir.2004). immunity “Qualified those individu- 1062 ing that violated at *6. trial or face rights. Fourth Amendment Id. is ‘an entitlement to stand als’ ” issue, Saucier litigation.’ this the court determined the other burdens On v.Katz, 194, 2151, 200, 121 533 U.S. S.Ct. San Francisco’s blanket (2001) (quoting that such a L.Ed.2d 272 Mitchell holding ran afoul of our cases 150 511, 526, Forsyth, if S.Ct. can be conducted there 105 2806, (1985), 411 that a L.Ed.2d overruled on individualized reasonable 86 Indeed, San appeal. not at district court issued its amended order. issue in this again appealed quali- supra, the the denial of as noted district court held Francisco immunity ap- Hennessey immunity to this This second qualified fied court. Sheriff had assigned On challenges policy. peal was No. 06-15566. from Docket 2006, April this issued an order court 21, 2005, consolidating appeal 06- Specifically, 05-17080 and 7. on October Nos. por- court ruled that moved 15566. Because district Francisco for reconsideration February superseded its September 2006 order tions of the district court’s order, appeal September 2005 we dismiss order that were to the court’s unrelated qualified immunity 05-17080 as moot. denial of for Sheriff Hen- No. simultaneously ap- nessey. San Francisco rulings on the immunity court made several other pealed qualified the denial of 8. The court, summary judgment appeal assigned parties' cross motions for and the was Docket 23, 2006, February On that are not at issue here. No. 05-17080. — Callahan, by grounds other Pearson v. (1979), 60 L.Ed.2d 447 -, ---, 808, 818, U.S. 129 S.Ct. Turner v. Safley, 482 U.S. (2009)). applying

L.Ed.2d 565 In the two- (1987), govern L.Ed.2d 64 our part qualified immunity analysis, analysis. “[w]e Cases that address searches of whether, must determine taken in light place arrest, arrestees at the to[Plaintiffs], most favorable Defendants’ at the stationhouse prior to booking or conduct amounted to a constitutional viola placement cell, in a holding or searches tion, and ... we must determine whether pursuant to an evidentiary criminal investi- right clearly or not the established at gation review, do not control our because the time of the violation.” McSherry housing jail population and Beach, v.City Long 560 F.3d the issues attendant to effective detention (9th Cir.2009). 1129—30 It is within our “sound facility administration are not factors discretion which of [to] decid[e] the two those cases. Accordingly, begin our prongs qualified immunity of the analysis analysis of San Francisco’s should be addressed in light first policy by reviewing principles estab- particular circumstances in the case at lished in Bell and Turner. Pearson, hand.” 129 S.Ct. at 818. Under the circumstances of this A case, jurisdiction we also have to review Bell, Court upheld grant partial district court’s sum policy of conducting visual mary judgment cavity on the issue searches of individuals liability, Fourth Amendment housed at because Metro- politan (MCC), Correctional district court’s Center holding liability a fed- is “inex with,” erally operated tricably intertwined short-term as well as “de custodial facili- ty York, pendent against on both the New reasoning and Fourth results and Fifth of,” deny its decision to Amendment qualified immunity challenges. MCC housed Hennessey. Clarke, inmates, to Sheriff pretrial detainees, Marks v. convicted wit- 1012, 1018 Cir.1996). protective nesses in custody, persons

incarcerated for contempt Bell, of court. III plain- S.Ct. 1861. The class, tiff consisting of all persons housed The reasonableness of a search is deter- MCC, challenged a number of different mined reference to its context. Mi- practices “restrictions and Sumner, were de- chenfelder (9th Cir.1988). signed promote security and order at The before facility the on ground the that these re- applied us to arrestees transferred out of strictions violated the Due Process holding cells and Clause gen- introduced into the Amendment, of the Fifth jail population eral and certain other for custodial housing. guarantees, constitutional According to such San Francisco’s as the unrebutted First and Fourth testimony, purpose the of the Amendments.” Id. at strip search 544, 99 prevent was to S.Ct. 1861. One of smuggling practices the of these drugs, weapons, requirement and other the that contraband into detainees under- general jail go the a visual population. cavity inspection part Because the as purpose of the search of a every at issue was “after contact visit to further institutional security goals person with a from with- outside the institution.” facility, detention the principles case, articu- Id. at 99 S.Ct. 1861. As in this Wolfish, lated Bell v. U.S. 99 the argued the search policy vio- (1974), on other right 40 L.Ed.2d overruled Fourth Amendment to be their lated Abbott, grounds by Thornburgh searches. 490 U.S. from unreasonable free 401, 413-14, 109 S.Ct. 104 L.Ed.2d merits, the addressing the Court Before v.Beto, 319, 321, (1989); Cruz principles that several reviewed (1972) (per 31 L.Ed.2d 263 S.Ct. and which bear re- analysis, its informed v.Fano, curiam); Meachum First, that the Court reaffirmed peating. 228-29, 49 L.Ed.2d 451 all constitutional “do not forfeit prisoners (1976)). incarceration, of and virtue protections” at pretrial that detainees “retain stated rejected argu- the specifically Court rights that [the least those constitutional facility ment that deference corrections enjoyed by held convicted are Court] ha[s] necessary per- the officials is when 545, 99 prisoners.” Id. at S.Ct. 1861. Sec- of being sons housed have been convicted ond, that the re- emphasized the Court crime. Id. at 547 n. 99 S.Ct. 1861. The prisoners rights constitutional tained of def- explained principle Court “the subject to restric- and detainees alike were running erence” to officials’ discretion based on “institution- tions and limitations dependent on corrections institutions objectives,” explaining and al needs “happenstance” whether inmates confinement fact of as well “[t]he pretrial prison- are detainees convicted legitimate goals policies penal and Rather, ers. Id. courts owe corrections limits retained institution these constitu- grounds officials deference rights.” tional Id. at 99 S.Ct. 1861. running “the insti- realities of a corrections Third, explained the Court a central difficult, complex tution courts are justification for permissible restriction ill equipped problems, to deal with these rights of constitutional is a facili- detention management of these facilities ty’s accomplish need “essential Legislative confided to the Executive and goals” “maintaining institutional securi- Branches, not to the Branch.” Judicial ty preserving internal order and disci- Id.; 547-48, at 1861. see id. Id. must pline.” “[p]rison Because officials free to take action appropriate to en- merits, as- Turning to the the Court safety sure the of inmates and corrections sumed, deciding, without that detainees even personnel,” those restrictions that in- Amend- inmates “retain some Fourth “a fringe upon specific guar- constitutional ment a correc- rights upon commitment to must be in the light antee” “evaluated facility” tions and noted that Fourth “[t]he objective central administra- prohibits only Amendment unreasonable tion, security.” safeguarding institutional searches.” Id. 99 S.Ct. 1861. The (internal quotation Id. S.Ct. 1861 requires “test ... a bal- of reasonableness omitted). Finally, marks Court direct- ancing particular of the need for the ed lower courts to accord offi- corrections against personal the invasion of “wide-ranging adop- cials deference rights that the search entails. Courts practices policies tion and execution of scope particular must consider the in their judgment pre- are needed to intrusion, manner in it is con- which discipline serve internal order ducted, it, justification initiating security.” (citing maintain institutional Id. in which it conducted.” place Union, v. N.C. Labor Jones Prisoners’ 559, Id. at 99 S.Ct. 1861. Inc., 433 U.S. 97 S.Ct. (1977); scope The that the acknowledged L.Ed.2d 629 Procunier Mar- Court tinez, 396, 404-05, at strip was invasive: searches MCC male, cases). “If (citing the inmate is he must lift his Id. While recognizing that genitals spread and bend over to his but the institution might adopted have alterna- inspection. tocks for visual vaginal tives less intrusive than a blanket and anal cavities of female inmates also performing searches, the Court nev- visually inspected.” are Id. at 558 n. officials, ertheless deferred to MCC ex- Indeed, 99 S.Ct. 1861. the circuit court in plaining that the officials’decision to adopt body cavity Bell had invalidated the the strip procedure “has not been policy, concluding “‘gross viola shown to be irrational or unreasonable.” privacy tion of personal inherent in such a Id. at 559 n. 99 S.Ct. 1861. According- search cannot outweighed by gov ly, the Court concluded search at security ernment’s in maintaining interest issue did not violate the detainees’ Fourth ” practice of so little actual utility.’ Id. at rights. Amendment Id. at Levi, (quoting S.Ct. 1861 Wolfish 1861. (2d Cir.1978)). 118, 131 Although Bell continues provide de rejected The Court this reasoning, how- guidance finitive for analyzing detention- ever, and held that the search policy facility strip searches under the Fourth at given MCC was reasonable the institu- Amendment, Turner v. Safley is also rele objectives, tional needs particularly vant to our analysis. When reviewing a concerns, security of the corrections detention facility’s restrictions of constitu “[cjorrec- facility. The Court noted that rights tional that are inconsistent with in tions cavity officials testified that visual carceration, Turner directs courts to con necessary searches were not only to dis- sider whether the challenged restriction cover but also to deter the smuggling of “reasonably legitimate related to pe weapons, drugs, and other contraband into nological interests.” 482 the institution.” Id. Recognizing that a By S.Ct. 2254. considering the reason facility “detention a unique place fraught ableness of a in a detention security dangers,” serious and that context, facility we must consider the exis “[sjmuggling money, drugs, weapons, “valid, tence of a rational connection be and other contraband is all too common an tween the prison regulation and the legiti occurrence,” the upheld Court the policy governmental mate put interest forward to though even long there had been no it”; justify impact “the accommodation of pervasive history MCC, smuggling the asserted constitutional right will have nor had presented corrections officials sub- guards inmates, and other and on the stantial persons evidence that partici- who allocation of prison generally”; resources pated in contact visits were sources of obvious, and “the easy existence alterna contraband. Id. at 99 S.Ct. 1861. tives” as Indeed, regulation evidence that the “is although officials could show an ‘exaggerated response’ prison one instance which con contraband was 89-91, cerns.” Id. at during found cavity inspection, S.Ct. 2254.9 respect factors, Court found it sufficient With these “attempts to Court secrete these items into the reiterated the facility by need to defer to in “the concealing in body them cavities are docu- formed discretion of corrections officials.” 90, 107 mented this record other cases.” Id. at S.Ct. 2254. factor,

9. The second Turner policy, “whether there the search right because the to be free exercising right alternative means of from right unreasonable searches is not a inmates,” open that remain susceptible to exercise alternative means. 90, 2254, U.S. at 107 applicable Michenfelder, S.Ct. is not to See 860 F.2d at 331 n. 1. 974 (1990) 1028, L.Ed.2d 178 ground applying in 110 S.Ct. 108 no new break

We quite Turner “made clear (explaining this context. See that and in Turner Bell Souza, 694, adopted of review 111 699-700 that the standard we v. F.3d Thompson in Cir.1997) applies to ... to all circumstances which (9th Turner and Bell (applying impli- of prison claim re the needs administration Amendment prisoner’s a Fourth rights”).11 body cavity and cate constitutional to visual lated searches); at 332- Michenfelder, 860 F.2d B also, (same); County e.g., Pierce v. see 33 (9th 1190, Cir. Turning 1209 to the San Francisco Orange, 526 2008) pretrial policy, begin by to detain Bell’s (applying applying Turner we — denied, -, claims), held a man- general principles. U.S. Bell that ees’ cert. (2008); datory, policy applied 597, 172 L.Ed.2d 456 routine 129 S.Ct. 1124, prisoners every to “after contact visit with Agnos, v. 152 F.3d 1130 Frost Cir.1998) (same).10 Indeed, institution,” from applies person Turner a outside proper suspicion, individualized was facial- rights “to that are inconsistent with without incarceration,” v. character- California, ly constitutional. dissent’s Johnson 1141, coun- contrary 160 L.Ed.2d ization of case to the is 125 S.Ct. U.S. (internal (2005) Bell, quotation marks omit ter-factual. See U.S. at ted), reaching Fourth conclusion made clear that S.Ct. 1861. Bell assumed, incar- persons deciding, of incarcerated Bell without that rights Amendment “limitation subject persons or in retain Fourth to retraction” cerated some fur- security, rights. gone institutional Amendment We have order maintain ther, 1861; that recognized see also the Fourth 441 U.S. Washington Harper, apply Amendment does to the invasion of v. attempts distinguish Thomp- applicable prison setting, 10. The not be outside of dissent ground on the safety son and that penological security in interest Michenfelder brought by prisoners al- involved "claims applicable all correction In- is in facilities. sentences,” ready serving and thus "in- deed, "distinguish! Bell declined to between ] interests,” legitimate penological volvefd] pretrial detainees and convicted inmates ap- "penological while such interests” do not reviewing challenged security practices,” ply pre-trial detainees. This distinction noting concluding is no basis "[t]here unavailing. distinguished be- We have never security pretrial pose detainees lesser ap- pretrial prisoners tween detainees Indeed, may it risk than convicted inmates. test, plying the but Turner have identified they present be that in certain circumstances facility respon- interests of correction officials security greater jail risk to and order.” pretrial being "penolog- sible for detainees Bell, 441 n. 1861. U.S. at 547 99 S.Ct. See, e.g., ical” in nature. Simmons Sacra- Court, County Superior mento 318 F.3d ap- argues that we 11. The dissent should (9th Cir.2003) (holding that a sheriffs standard, ply the Turner because “Bell direct- pretrial transport refusal to detainee from agree ly Bell is controls here.” While jail personal injury to court "serves for a trial detainees, directly applicable pretrial Bell legitimate penological it interest” in that Turner, Turner, see is consistent with keep "goes very to the of that heart interest-to 87-90, 2254; Thornburgh, 490 absolutely detainees detained unless neces- (pointing out U.S. at 410 n. 109 S.Ct. 1874 Rosenbaum, sary.”); Valdez "expressly Bell "when that Turner relied” on (9th Cir.2002) (holding restrictions it announced the reasonableness standard telephone does not access state cases”), rights’ 'inmates’ constitutional pretrial violate a detainee’s constitutional depart from our thus there no reason rights reasonably legitimate if "it is related to applicable interests.”). prior holding cases that Turner is penological penological While may punishment this context. interests rehabilitation

975 See, in prisons. e.g., required Mi officials to bodily privacy strip conduct searches F.2d at San in chenfelder, professional 860 332. Because manner and in a place in applied privacy. Furthermore, to policy Francisco’s arrestees afforded the general jail population into the San justifying troduced circumstances the Francisco housing, required strip policy weightier for custodial we are search are in this claims plaintiffs’ evaluate the constitutional case than were in The Bell. record objective pervasive “in of the central of light problem the reveals a and serious administration, safeguarding insti with contraband inside San Francisco’s Bell, security.” jails, 441 at tutional U.S. as well as numerous instances in confine principle 99 S.Ct. 1861. which contraband during was found necessary search, about with “brings indicating ment the that arrestees’ use of limitation many drawal or of privileges cavities as a of smuggling method equally ... rights applies pretrial drugs, weapons, de and items used to escape Bell, 441 U.S. at is an prisoners.” custody tainees and troubling immediate and (internal 545-46, quotation problem for S.Ct. San Francisco administra- omitted); see marks also United States tors. The record of in smuggling this case Bell, VanPoyck, 77 F.3d 291 & n. 10 far showing exceeds the in where Cir.1996). Finally, if “disagree!] “proved even we defendants one instance in judgment history with the officials the short [corrections] MCC’s where contraband security during about the extent the interests found a body-cavity search.” the means further required affected and Id. at 1861. S.Ct. interests,” Bell,

those U.S. sum, because the circumstances be- may engage S.Ct. “an fore us are not meaningfully distinguish- impermissible substitution of view on [our] Bell, presented able from those the the proper [a administration corrections balance between the need the San facility] experienced for that of the admin strip search policy Francisco and “the in- Block, facility.” istrators of that personal vasion rights that the search 589, 104 3227. S.Ct. must be entails” resolved in favor of the jail system’s institutional concerns. Id. at Applying principles reviewed strip 99 S.Ct. 1861. While searches above, it that the man apparent scope, embarrassing, invasive and while ner, justification Francisco’s San type security measure “instinctive- strip meaningfully search was not ly gives pause,” us the most Id. at manner, jus the scope, different from 1861, we must conclude under strip tification for the Bell, Francisco’s strip San challenged policy Bell.12 Similar was reasonable and therefore did not vio- Bell, proce strip the San Francisco class late the members’ Fourth Amend- scope governing dures and manner rights. ment searches, as detailed in the Sheriffs Booking policy, require Searches limited Because the Turner factors us expressly inspection give searches to visual more deference to detention offi- prohibited tactile searches. See cials’ than determinations does balanc- Bell, 39, 560, n. 1861. it ing surprising U.S. at 558 test in is not that our Moreover, procedures Francisco consideration of the Turner factors leads analyze place pri- 12. Bell did not in which that officers conduct searches in a occurred, explained place supports poli- be- but as vate conclusion low, policy's cy requirement the San Francisco was reasonable. interest legitimate governmental the and Francisco San conclusion. the same to Turner, 482 it.” justify to forward put record a well-documented presented (internal quota- S.Ct. 2254 at U.S. jails, of individu- in its problem contraband Banks, omitted); see Beard marks tion into smuggle contraband to attempting als 2572, 165 521, 531, 126 S.Ct. 548 U.S. cavities, of the health and via jails the (2006) (holding that detention L.Ed.2d 697 raised. smuggling such safety issues and testimony articu- facility superintendent’s jail a administrator’s includes The record on and his views problem lating identified importance “it of utmost is testimony that addressed them policy challenged how prevent to jail system of a operation in the do, regulations “that the to sufficient show weapons, and drugs, of introduction the identified”). fact, function the serve safety that “[t]he and other contraband” inmates, and the all staff of being well for and concern to Turner's respect With Further, Sheriff less.” no resources, produced demands public Francisco San prison that, creating jail Hennessey of testified that elimination the undisputed evidence of institu- “the considers needs to a he “lead policies, policy would strip search the inmates, staff, safety of security and illegal contraband tional of higher incidence dignity visitors[,] and privacy ... the more of implementation and that jails,” the and inmates[,] prac- the and ... cost and “requires supervisory [and] policies targeted record Finally, away the time ticality jail policies.” training” that “takes staff line greatest op- re- testimony necessarily that uses “the and includes other tasks from drugs the allo- the introduction supply.” for in scarce When portunity sources point of ad- jail ability at the the into the occurs resources and weapons cation of jail the into staff and detainees protect is received to an arrestee ministrators when thereafter, issue, and, housing,” and “courts should facility are at booking at the informed the before deferential to particularly “are searched be that detainees Tur- jail popula- corrections officials.” to the discretion of are transferred 2254.13 ner, at 107 S.Ct. the 482 U.S. prevent introduction in order to tion a Moreover, that Bell into determined other contraband because weapons or drugs, facili- is reasonable inmates thereby protect jails the smuggling evidence, only single a confirmed ty with we light of this In and staff.” 99 S.Ct. incident, 441 “valid, U.S. rational there was must conclude their met say that have cannot regulation prison the connection between inquire into "the requires courts Court Francisco institut- claims San 13. dissent consti- of the asserted impact require accommodation merely would because it ed its allocation right have on will ... "it tutional and because its officers more time to train generally” in order to prison comply resources administratively inconvenient " 'valid, rational there is determine whether It Frontiero cites with the Constitution.” regulation 677, 690, Richardson, between connection’ 93 S.Ct. put governmental interest legitimate (1973), proposition for the 36 L.Ed.2d Turner, at 89- justify it." forward does not "mere bureaucratic discomfort state- San Francisco’s S.Ct. 2254. Frontiero justify violations.” constitutional implemen- Frontiero, regarding the effect that ments Court struck point. on In policy would targeted strip tation of the basis that discriminated down statute inqui- to this is relevant have on resources government’s gender held that such state- statute, claim ry, and the dissent's be it would justification it discriminate, view that represent Francisco’s ments did not “cheaper easier” to "administratively Frontiero, inconvenient would be scrutiny review. pass strict misrepresents Constitution” comply the corrections 1764. U.S. at contrast, context, the record. facility showing burden of that San Francisco’s county jail. booked We concluded was “an exaggerated charged “arrestees with minor of- concerns,” Turner, response to prison may subjected fenses to a strip search (internal quota- S.Ct. 2254 jail if possess officials a reasonable omitted). Furthermore, tion marks eligi- suspicion that the individual arrestee is ble arrestees who following were released carrying or concealing contraband.” 746 citation, upon reaching sobriety, or after F.2d at 617. Because the county lacked posting bond were subject strip such a suspicion case, reasonable in Giles’s searches, and San gave Francisco arres- we held the strip search violated her con- tees a reasonable time in post which to rights. stitutional We distinguished the Finally, light bond. in of the documented facts of Giles’s case from the situation in ongoing, evidence of the dangerous, grounds. First, Bell on several we deter- perplexing contraband-smuggling problem, strip mined that a every search of arrestee given the jail deference we owe to county jail booked into a was “not neces- professional judgment, officials’ sary we cannot protect the security institution’s “obvious, conclude that easy interest,” there are al- part in because arrestees could preventing ternatives” to contraband from be segregated from more dangerous in- Turner, entering jails. 482 U.S. at mates. Id. We refused to weight accord 107 S.Ct. 2254. Accordingly, straightfor- the fact Giles had been placed in gen- application ward of Turner likewise jail leads eral population, reasoning that “such to the conclusion that San Francisco’s intermingling is both limited and avoid- policy did not violate the class able.” Second, Id. at 618-19. we stated members’ Fourth Amendment rights be- that the in detainees Bell charged “were cause it was “reasonably related to [the] offenses more serious than minor legitimate penological jail interests” of violations, traffic they and ... were there- in maintaining security for inmates and fore detained for pretrial substantial peri- employees by preventing contraband ods.” Third, Id. at 617. we noted the smuggling. Id. at 107 S.Ct. 2254. county had not demonstrated that

had a smuggling problem, serious because C only eleven incidents of smuggling had been detected in the preceding eighteen- argue Plaintiffs this conclusion is incon- period. month Finally, Id. we determined sistent with our earlier in decisions county had not demonstrated that its Thompson City Angeles, Los strip search policy effect, had a deterrent (9th Cir.1989), and Giles v. Acker- reasoning to the “[visitors detention facili- man, (9th Cir.1984) 746 F.2d 614 (per cu- ty in Bell plan could their orga- visits and riam), which held that a blanket nize their smuggling activities,” whereas strip searching arrestees was per se un- confinement in the county jail was an un- constitutional, even if the arrestees were planned event, “so the could not to be transferred into popula- possibly deter arrestees from carrying tion. In revisiting opinions today, these contraband.” Id. we conclude give failed to weight due principles to the emphasized in Bell In Thompson, upheld we the constitu- reiterated Turner. tionality of county’s strip search of a Giles, a woman arrested for minor man arrested for grand theft auto because traffic offense was strip searched in accor- his offense was “sufficiently associated county dance with being before with violence to justify a visual strip Bell). Moreover, question whether Following F.2d at 1447. search.” Giles, justified searches confirmed could be even in individualized reasonable based on suspicion must be absence individualized carrying con- arrestee is an squarely raised in Bell. See U.S. at traband, justified be on the and cannot (Powell, J., concurring being placed ground that an arrestee part dissenting part) (dissenting general jail population. contact with the ground on the sole that “at least some Id. cause, suspi- level of such as reasonable cion, required justify should anal

Thompson comply and Giles failed in genital searches described this Supreme with the Court’s direction case”); (Marshall, J., judgment dissenting) id. at 578 our that of we not substitute Bell, 441 in facility (disagreeing majority part officials. with the on corrections U.S. First, at n. our ground 540 99 S.Ct. 1861. the that “the searches are em- in that strip conclusion searches of ployed any suspicion Giles of wrongdo- absent the heading pop- into arrestees ing”). Yet the to impose Court declined must be based on individualized ulation suspicion requirement, an individualized approach with the inconsistent notwithstanding criticism from Justices Supreme in Court did adopted Bell. Powell Marshall. officials consider require not MCC to the Second, concluding we erred in that ar- persons the individual characteristics of charged “pose restees with minor offenses policy. to the Nor subject did Giles, security no the facility.” threat require MCC officials to articu- Court 746 F.2d at Bell not require 618.14 did suspicions that particular per- their late modify officials MCC subject to smuggling son was policy based on whether a detainee had Rather, the Supreme contraband. Court charged been or minor with serious of- all

upheld strip searching per- Indeed, facility the detention in fense. categorically who had contact as sons visits housed in protective Bell witnesses custo- reasonable under circumstances in the dy persons pursuant detained con- 559-60, Id. at 99 facility. detention S.Ct. orders, tempt persons those in- were 1861; Palmer, see Hudson v. 468 U.S. at in the 441 plaintiffs. cluded class of U.S. J., (O’Connor, 104 S.Ct. 3194 concur- 1861; at n. 526 99 S.Ct. see also contexts, (stating that in certain ring) such Levi, States ex rel. 439 United Bell, in as the one considered “the Wolfish Court (S.D.N.Y.1977) F.Supp. (defining 119 rejected case-by-case approach has class of as detain- “pre-trial inquiry in favor ‘reasonableness’ of an facility ees primarily for whom the approach determines the reasonable- prisoners designed, sentenced either practices categorical ness of contested awaiting assignment to a Bell, prison facility or 555-60, (citing fashion” 1861)); (usually here assigned to serve their rela- Ry. S.Ct. see also Skinner Labor short) terms, Ass’n, 602, 619-20, tively prisoners here on writs Executives’ (1989) testify trial, or to stand witnesses in L.Ed.2d (describing special citing protective custody, persons needs cases and incarcerat- 14. The dissent repeats asserting judicial unguided this error in the "sort substitution "persons history no expert criminal arrest- judgment that of admin- pose ed for trivial offenses no credible risk of istrators” Court has forbidden. smuggling jails.” contraband into As Bell, 441 U.S. at 99 S.Ct. 1861. Giles, finding appellate this fact constitutes contempt”). ed for hardly conduct, “The MCC was far from impugning the validity of facility where all of the detainees were the scheme for implementing interest, ‘awaiting trial charges,’ on serious federal logically is more viewed aas hallmark of opinions as some of the Bell, of other circuits success.” (citing 441 U.S. at 1861)).15 seem to indicate.” Stephens, Evans v. (11th Cir.2005) (en banc)

F.3d Finally, Giles erred in assuming that a (Carnes, J., concurring specially). could have a deter- Third, in deciding Giles erred that a rent persons effect who have been ar- record eleven smuggling instances of rested and being are introduced into the was insufficient to demonstrate a smug general jail population time, for the first gling problem. 746 F.2d at 617-18. Bell 746 opposed to detainees require did not officials to demonstrate a who already general jail popula- lengthy history of multiple incidents of tion and are engaging contact visits. Rather, Bell, smuggling. scenarios, MCC officials both the individuals have access that, had determined in their professional to contraband and can conceal dangerous judgment, strip cavity and visual items on person. their deny- “There is no after contact visits were necessary for de ing that arrestees entering a detention terrence as well as detection of contra facility usually have plenty had of contact 558, 441 band. U.S. at 99 S.Ct. In outsiders, 1861. most having been outsiders light decision, of this which was “irra not themselves until they were arrested.” unreasonable,” 40, tional or Barrett, id. at 559 n. 99 Powell v. 1313 S.Ct. Cir.2008) (en the banc). Court that held Thus, the effort strip policy MCC’s was constitu distinguish to Bell on the ground that “ar- tional even had though just MCC detected restees do ordinarily not have notice that single incident of smuggling, contraband they are about to be arrested and thus an 1861; id. at see also opportunity Nat'l to hide something,” Shain v. Treasury Employees Raab, Ellison, (2d Union v. Von 273 Cir.2001), F.3d 64 and n. 109 103 are likely therefore less to hide contraband (1989) (“When L.Ed.2d 685 the Govern on their person persons than already ment’s interest in deterring lies highly who engage visits, in contact unpersua- conduct, hazardous a low incidence of such sive.16 As the noted, Eleventh Circuit Thus, 15. the argument dissent’s that Bell re- instance where an MCC inmate discov- “factbound, quires a inquiry data-driven into attempting ered smuggle to contraband into categorical reasonableness of the search” person on may institution his be more a holding. mischaracterizes the Court’s testament to the effectiveness of this search overruling the court district and the Second technique as a deterrent than lack of Circuit, rejected Bell empirical evidence part on interest of the inmates secrete courts, requirement adopted by those see import and such items opportunity when 147; Wolfish, F.Supp. at Wolfish, 573 arises.”). upheld F.2d at strip and MCC's policy though only even there had been one 16. Although argues dissent that ”[a]s prior incident of smuggling. contraband In- sense, matter of common contact visits are far deed, suggested Bell that the strip search likely more smuggling lead to than initial policy would have been valid in the absence arrests,” support it offers no for this factual any proof of incidents of contraband Bell, finding. But see 441 U.S. at smuggling, because the absence of contra- (holding S.Ct. 1861 that courts should accord may band indicate that the is an effec- “wide-ranging deference” to adminis- Bell, tive deterrent. 441 U.S. at judgment practices trators’ policies and (“That S.Ct. 1861 there has been one distinguish purported to Bell sur- courts have arrested is everyone who is “[n]ot grounds: persons arrested seized, into handcuffs several slapped on prised, people represent notice. Some minor offenses do a moment’s on certain without Roberts, that a see, notified concern, e.g., are security surrender when outstanding. 1255; them 111, Masters, at warrant F.2d F.3d are com- officers notice that have [Some] who arrested are less persons them,” persons those to arrest ing than smuggle detain- likely to contraband “may have stop a vehicle after arrested jail population in the already general ees person on before hide items their time to see, visits, e.g., engage who contact Then car door. reaches the the officer Roberts, 112; that a blan- 239 F.3d at deliberately get them- who are those there all arrestees en- ket Powell, arrested.” selves is unrea- tering general jail population 1313. unless have demonstrated sonable officials lack arrestees hypothesis that smuggling significant Giles’s the existence contraband opportunity hide has a a blanket problem by the evidence is also belied person their effect, see, e.g., deterrent id. significant The record establishes in this case. above, reasoning is in- explained As a substantial Francisco detected San principles both with the consistent during contraband amount Turner, in Bell and with enunciated Francisco arrestees at the searches of application principles of those specific arrestees fac- jail, and also indicates that in Bell. search at issue More- contra- strip jettisoned search have ing a over, inconsistent with these decisions are holding in the cell. This evidence band warning that federal Supreme the Court’s fact, do, in have both that arrestees shows substituting judg- their courts must avoid to conceal inclination opportunity the expertise “professional for the of ment in areas before private bodily contraband “determining in corrections officials” 9, No. transported County Jail being are restrictions or conditions rea- whether may have a strip that a sonably related the Government’s inter- we see no deterrent effect. Because maintaining security and order and est in institu- meaningful difference between the manageable the in a operating institution raised in by concerns contact visits tional 23, n. 99 U.S. at 540 S.Ct. fashion.” introducing arres- by and those raised Bell may While federal courts “dis- 1861. jail in this general population the tees into of agree[ judgment [corrections] with ] case, reject dis- purported must we security of the officials about extent of Bell. tinction required means interests affected and the reasons, with disagree For the same interests,” those to further circuits that have held those other again “decisions have time Court’s general entering of arrestees searches unguided emphasized that this sort of sub- jail se unless population per unreasonable judicial for that of judgment stitution have reasonable the officials individualized on prison mat- expert administrators smuggling that the are arrestees Id. at inappropriate.” as this is ters such See, e.g., v. Rhode contraband. Roberts 554, 99 S.Ct. 1861. (1st Cir.2001); Island, 239 F.3d Crouch, reasoning of Shain, 65; with agree at 273 F.3d Masters v. We (6th Cir.1989). rights of arres- These Eleventh Circuit that 872 F.2d security”). pline "preserve and disci- and to maintain institutional needed to internal order in custodial placed housing placed tees with the who was holding cell until general population “are not violated posting bond); County Ward practice or searching (9th Cir.1986) each Diego, 791 F.2d part booking process, one of them as (considering anof arrestee provided that the searches are no more who was searched before the determina privacy intrusive on interests than those tion was made as to whether she was case,” upheld the Bell and the searches eligible for on recogni release her own are “not conducted an abusive manner.” zance). constitutionality of searches Powell, 1314; 541 F.3d Archuleta v. arrest, place arrestees cf. (10th Wagner, 523 F.3d Cir. prior searches at the stationhouse to book 2008) (upholding searches of arrestees in ing, and pursuant to an evidentia termingled general population of a ry investigation analyzed must be under facility, awaiting corrections but not those different principles than those at issue to bail, stating that when an arrestee is See, day. e.g., Lee, Winston v. 470 U.S. kept holding in a security cell the “obvious 753, 762-63, 105 S.Ct. 84 L.Ed.2d 662 concerns inherent in a situation where the (1985) (analyzing physically invasive placed detainee will be in the pris search of an arrestee intended uncover population simply not apparent”). vital evidence criminal investigation); We therefore overrule our panel opin own Illinois v. Lafayette, 640, 646, 462 U.S. ions in Thompson and Giles. (1983) (address 77 L.Ed.2d 65 ing inventory searches at the stationhouse not, however,

We do prior disturb our theft, intended to avoid identity, ascertain opinions considering searches of arrestees and maintain security police station); who were not housing classified for in the Robinson, United States v. See, general jail population.17 (1973) 38 L.Ed.2d 427 Ventura, e.g., Way County (discussing searches incident to Cir.2006) lawful ar (considering the rest, which are upon “based the need to strip search of an intoxicated arrestee who disarm evidence”); and to discover see was detained until sober and never housed Evans, also 407 F.3d at 1279. general with population); the Act Up!/Portland v. Bagley, 988 F.2d D (9th Cir.1993) (considering strip the released); of arrestees who were cited and In rejecting analysis, our the dissent Fuller v. Jewelry, M.G. devises its own test for determining (9th Cir.1991) 1445-46 (considering the whether strip the search of an arrestee is search of arrestees considering First, without constitutional. the dissent contends whether would be held in the general “strip justified searches must by be jail population); Kennedy L.A. Police or, individualized suspicion” reasonable at Cir.1990) Dep’t, 901 least, very the “categorical reasonableness (considering strip the search of an arrestee based on empirical evidence that policy the misrepresents 17. Thus the dissent the reach of general to detainees classified to enter the policy holding the San Francisco and our in facility population. corrections The dissent claiming "sweeping] away that we are twen- fails to differentiate between cases consider- ty-five years jurisprudence,” "giving of ing constitutionality strip the searches of jailors right” "any the unfettered to search housing arrestees who were classified for may citizen who be arrested for minor of- general population, strip the searches of strip fenses.” The policy at issue in arrestees in other contexts. case, holding today, applies only this and our reject ap- the dissent’s categorical approach We must therefore The necessary.” is determining “the the tailored” constitutionali- “narrowly proach because must justified only by entering is searches of detainees ty most invasive search of a corrections fa- general population need.”18 the compelling the most cility. analysis Ultimately, dissent’s the a disagreement amount

proposed test IV above, Bell, explained as Bell. Under circum- policy these light governing In Court individual- not be based on stances need the circumstances given precedent, evi- empirical suspicion ized reasonable here, we conclude presented fact, necessary. policy dence the requiring Francisco’s prob- would strip search the MCC’s custodial all arrestees classified for under the dissent’s ably pass not muster fa- population was housing supported was not test. The MCC’s cially under the Fourth reasonable “only proved The by empirical data: MCC Amendment, notwithstanding lack of was ... where contraband one instance as to suspicion individualized reasonable Bell, body-cavity search.” during found pol- the individuals searched. Because Nor was 1861. plaintiffs’ not Fourth icy did violate was evidence that contraband there we reverse the district rights, Amendment might who meet person found on mo- Hennessey’s denial court’s of Sheriff raising reasonable standard dissent’s qual- summary judgment tion for based on a search. Id. at justify doing necessarily immunity, and in so ified (dis- Bell, question S.Ct. 1861. Under grant plain- reverse district court’s there is an puted parties) whether summary judgment motion for partial tiffs’ from “example anyone the class defined liability. to Fourth Amendment who found to by the district court REVERSED. upon being strip possess contraband dispositive, or even rele- searched” KOZINSKI, Judge, with Chief whom “Bell acknowledges, vant. As the dissent joins, Judge concurring: GOULD directly here.” is inconsis- controls Bell question com- and difficult analysis, interesting tent with dissent’s case. heart of case is federal pels the conclusion we reach this whether (internal (1985) by attempts support quotation test marks and altera- 18. The dissent omitted). remarked, the Court pointing Supreme "[w]e Court decisions that tion As yet ready and considerably afield from the situation are not to hold the schools far prisons equated purposes of example, For it cites need be for here. Unified Safford 338-39, Id. 105 Redding, - U.S. -, 1 v. the Fourth Amendment.” School District # 2633, (2009), to 733. that informed 129 S.Ct. 174 L.Ed.2d 354 S.Ct. The considerations analysis applica- support theory its that “a the Court's in are not Safford Supreme here. also violates the Amendment when there ble The dissent cites the Fourth demonstrating the exis- little will result in Court's standard for evidence that probable applying a cause when discovery of contraband.” As the dissent tence course, acknowledges, "slight magistrate Of correc- a for a warrant. this decision arose in probable ly Specifically, officials not need cause different Safford tions do context.” children, in relat- rights a warrant order to conduct searches addressed the of school Hudson, See, security. e.g., goes saying prison "it without that the ed to institutional almost J., 538, (O’Connor, 3194 wholly differ 468 U.S. at 104 S.Ct. er and the stand in schoolchild Bell, 560, T.L.O., concurring); 441 U.S. at 99 S.Ct. Jersey 469 ent circumstances.” New v. 733, 325, 338, L.Ed.2d 720 1861. 105 S.Ct. 83

983 (2002), government agents, customs judges can force officials Nat’l Treasury Raab, to a people subject Union v. Employees subdivide classes Von 489 U.S. 656, Amendment search into sub- 677, 1384, valid Fourth 103 L.Ed.2d 685 materially a present (1989), classes that different prisoners parole, released on Sam ques- calculus. Fourth Amendment That California, son v. 547 U.S. 126 many contexts, and the tion can arise in (2006), S.Ct. 165 L.Ed.2d 250 have conse- far-reaching answer will crossing border, people United States quences. Martinez-Fuerte, 543, 545, v. 428 U.S. 96 (1976). 49 S.Ct. L.Ed.2d 1116

There a time in our was constitutional might history argued when one have The class to be searched is generally requires the Fourth Amendment individu by the activity question: defined In every for and an suspicion alized Bell, it class of all inmates who appropriate constitutional balance as to visits; had contact in other situations it’s case, If that each individual. was ever the aircraft, all those who seek to an board government it’s not so now: is entitled truck, building, enter a drive a perform to search classes of individuals based on a certain law enforcement functions or en- whole, balance struck for the class as a gage particular extra-curricular activi- regardless of whether there’s reasonable very sense, a important ties. such clas- any suspicion suspicion at all—as to —or trade protection sifications by afforded member. particular Bell v. Wolfish individualized protection de- everyone partic tells us that who government rived from the fact that the ipates may in a contact visit be similarly treats all people pre- situated 520, 558-60, searched. 441 U.S. same cisely way. (1979). 1861, 60 known L.Ed.2d We’ve brings Which us to hard question: everyone some time that who boards subject Do individuals to class-wide search may airplane subject commercial be to a based on risks attributable to class as search, fairly intrusive United States right whole have get constitutional Cir.1974) Edwards, (2d F.2d themselves certified as a sub-class as to J.), may (Friendly, everyone enters who search, all, which a lesser or no search at Alioto, a public building, McMorris v. is reasonable? For example, should some (9th Cir.1978) (Kennedy, F.2d 900-01 people exempt from be the inconvenience J.). We’ve that truck can be said drivers delay airport they searches because suspicion. searched individual without belong a materially to sub-class that has Dep’t Int'l Brotherhood Teamsters v. hijacking lower likelihood of a plane e.g. Transp., Cir. — judges the class federal by nominated 1991). ap And the Court has President confirmed the Sen proved suspicion-less such searches for ate? should Or certain individuals who workers, Skinner Ry. railroad Labor Ass’n, public buildings exempt enter from Executives to a belong because learned (1989), S.Ct. 103 L.Ed.2d 639 student Acton, profession and a athletes, present therefore lower Sch. Dist. Vernonia v. 47J States, Compare risk? v. United 515 U.S. Klarfeld (9th Cir.1991) (1995), (Preger 944 F.2d participating L.Ed.2d 564 students son, J., result), activities, concurring in the other extracurricular Bd. of States, Sch. United Indep. Educ. Dist. No. 92 Potta Klarfeld of of Cir.1992) Earls, J., (Kozinski, watomie County dissenting U.S. banc). 838, 122 153 L.Ed.2d 735 from of rehearing denial en This Castro,” Zern was multiple times for and Jonah arrested question posed could be resisting “peace” for a at a police are authorized officer any where searches regime rally. imagine can one of our close applicable to We on class— based relatives, grandchild, a child or by exemplary driving perhaps truck drivers with such records; agents being put have never under circumstances. customs who It’s much subject discipline; high empathize school harder when been by a B + search is those less like players who maintain aver- suffered football us, (few); suspected who age prison inmates convicted of such those crimes; engaging fights. list is or street genteel endless. robberies democracy very But there is a Supreme Court has held that indi- value, important Equal to an in the are sometimes entitled indi- enshrined viduals Clause, calculus, in treating everyone Fourth Amendment Protection vidualized they’re footing entitled to a who on the same alike. at other times stands See Vernonia, See, Skinner, Dist.47J, at e.g., calculus. Sch. 663- class-wide But If government at 109 S.Ct. 1402. it has 115 S.Ct. 2386. they’re you to carve there’s badly, never held that entitled treats comfort know ing as to which a different that no one in the same situation is out sub-class status, spared balance must be because of income or class. Fourth Amendment only misery company, struck. the absence of Court Not does love but equal I guidance, step. everyone am reluctant to take treatment for rich —the reasons, weak, I poor, powerful can think of at least three all blue by case, why might it well a strong this collar as as white —creates illustrated political against making a swell idea. check the treat such that airport ment worse. I’m convinced First, degree subjectivity there’s a far if searches would be more intrusive classification, and any that attends upper and Americans middle-class were easily subjectivity can transform into eli- exempt. unexempt Not would the believe, coincidence, It’s no I tism. treatment, indignity unequal suffer the class of for people selected favorable conducting but those the searches would by treatment the district court in case reason, and little good political opposi find are those who been arrested for the have tion, to ratchet up scope. duration us, any kinds of or least crimes protection plaintiff de The best Ran neighbors, might our friends and be ar- leau, homeless, who is is to make sure that laws, for: traffic rested those who violate Bull, Marron, and Zern are no Noh treated laws, or requirements, leash insurance better. maybe the Martha Stewarts Bernie Second, by Ebbers the world. Plaintiff Michael lines drawn courts rather require- Marrón was “credit arrested for card than dictated functional [sic],” activity ambiguous, at the Nikka of an tend fraud Hotel where ments to be might stay visiting subject manipulation us when San Fran- and difficult to ad- everyone Mary story Treating gets Bull’s seem who might cisco. less minister. if plane simple: had the same is If compelling she been arrested commercial ordinaire, e.g. throwing you get plane, you vandalism on a take off bricks want shoes, window, your any liquids a store rather than leave behind over vandalism ounces, chic, your throwing political laptop fake blood at a three remove from its protest. carrying pass through Steve Noh arrested for bat- case and metal tery celebrating Gay-Pride exceptions. “while If we were to Week detector —no risky driving: exemption an for the about reckless Traffic violation or order least have to attack a ton of population, we’d with steel? Earlier this segments of year, en identify people— panel split to those an banc 6-5 as to worry about how is, screening have whether a shank made from melted-down what kind we’d Styrofoam no into and used up get to make sure fakers an inmate to set then, of en- was a system point dangerous weapon. at the wound another —and Smith, people try, to confirm that the United States 561 F.3d 934 we’d have (en Cir.2009) banc). were, boarding If judges for federal presenting themselves fact, can’t agree, deputies going cleared in advance. The how are the the ones failure, recent of the Clear sort out such cases? operation, and (which you let cut to the front of system Next, Anyone controlled substances. exempt you the line but otherwise didn’t caught with Smack or Crack falls into the anything) much showed that kind from but what category, Oxy- about or Valium exemption costly difficult and to ad- Contin? What about unauthorized posses- minister, dirty in a lot of looks and results Non-prescription sion of drugs steroids? cut in you from those front of. See, pseudoephedrine? e.g., contain Kim, district point: Our case makes the United States v. Jae Gab (9th Cir.2006). people court a class of to ex- 933 carved out Alcohol tobacco strip search consist- are empt highly from the controlled substances. Do charge ing plaintiffs Mangosing, of all those arrested on a and Bron- Johnson (b) (a) son, intoxication, involving weapons, public controlled sub- arrested for fall (c) (d) stances, violence, category? whom or as to into this Could the treat a who cigarettes there was not individualized reasonable merchant sold a minor as charged suspicion. easy separate someone with a controlled sub- Sounds goats, Keep it’s sheep from the but not. stance offense? mind that a member of the class must category take the Now let’s third satisfy all four crite- (negatively) of the which strip per- offenses for searches are words, any ria—in other failure as to one order, mitted under the district court’s

will take out of the class and someone namely people arrested for crimes of vio- subject poli- make him strip-search lence. have a whole We caselaw subjec- cy. porous Each criterion is dealing with what constitutes crime of (and tive; quarrels there can endless purposes violence for criminal federal lawsuits) or did as to whether someone did law; immigration among activities categories. not fall into burglary, statutory we’ve considered one, weapons. rape, involuntary manslaughter, possession

Let’s start the first you’re carrying Gatling unregistered shotgun, If of an arrested short-barreled assault, gun you surely fall man- Carl Gustav would reckless vehicular vehicular intoxicated, but butter- category, slaughter kidnapping, into the what about a while arson, fly escape, knife? about a bat or to inter- stalking, conspiracy How baseball Giampaoli, by robbery, golf club? how about Lisa fere with interstate commerce Or theft, recklessly plaintiffs, grand mayhem, setting one of the who ar- named land, dog young her man with a rested because bit a fire to forest indecent liberties minor, carrying a harassing gun committing who was her. Was while allegedly accessory after drug being that a leash violation or an attack with offense and an law Nealis, deadly People See 283 the fact to commission of murder hire. canine? See, e.g., Cal.Rptr. (Cal.Ct.App.1991). disagree. And we often United What 986 (7th (a Chambers, private point in their the dissent spaces v. 473 F.3d 726

States Cir.2007) violence); zest, up is a crime of takes with (escape some Dissent Piccolo, 1084, 2299, 2301-02, 2302, 2305), 2300-01, 441 F.3d plain- United States v. (no (9th Cir.2006) not); it’s United classify “nodding 1088 an arrestee who tiffs was 712, 715-16 Asberry, v. 394 F.3d off,” “nervous,” States was another who (9th Cir.2005) (statutory is a crime of rape inmates as to there individual- whom was (Bea, J., violence); concurring) at 722 id. suspicion. “nodding If off’ “ner- ized Wenner, (no 351 way); States v. United vous” are sufficient for sus- individualized (9th Cir.2003) (burglary F.3d 974 look,” dirty can me a “was picion, “gave (Wal- violence); at 977 not a crime of id. poor posture” far hyperactive” or “had (is lace, J., too); dissenting) States United behind? (8th Johnson, Cir. v. 448 F.3d 1018 How, exactly, deputies to know what 2006) is); Ngu (grand theft auto Don Van and does not amount to does individualized (6th Holder, F.3d Cir. yen suspicion, ultimately and who decides? (au 2009) contraire); Malta-Espinoza Administering category, like the oth- Gonzales, Cir. above, discussed will a fair require ers 2007) isn’t); J., (stalking (Duffy, id. at 1088 error, amount of trial and a substan- (“I dissent.”); dissenting) respectfully degree judicial tial involvement. No Saavedra-Velazquez, United States v. guess much: A pending need how case (9th Cir.2009) (Reinhardt, F.3d judge before the same the Northern J.) (Rein is); robbery (attempted id. District, City County Yourke v. (or hardt, J., it?); specially concurring) Francisco, 03-CV-03105-CRB, gives No. a States v. Trinidad-Aquino, United foretaste. a war- Yourke was arrested on (drunk-driving-resulting- rant for a offense police traffic after ob- crime); in-bodily-injury gentle is a id. him in what a lot engaged served looked J., (Bull!). (Kozinski, dissenting) drug like deal. But Yourke claims it How is a Sheriff with a Deputy confronted like looked an innocent chat between suspect possible charges arrested on say friends. right? Who’s to who’s Not (like Bull), plaintiff burglary vandalism only will courts have to draw these difficult (like Timbrook) plaintiff interfering or with lines; jails guess will have to courts how (like Galvin) police plaintiff going officer Being subject will draw them. of a to know whether such individuals are sub risking personal liability, court order ject to search? will deputies probably err on the side of Finally, get to the most troublesome caution, prisoners the detriment of category: cases where the deter- deputies faced with an risk from increased of harm mine for a suspicion there’s individualized smuggled contraband. search. in- The district court found this court, And when a ends up anyone cludes prior involving weap- with a prove they how will individual- ons, officers had violence, controlled substances suspicion? ized The record thereby contains importing all the dis- ambiguities report guard, of a who prisoner told cussed above. But even arrestees without I you up my “wait to see what priors may [sic] relevant if have be searched their joke that deputies ass.” Was this a they’re smug- conduct raises required ignore give were or did it them gling exactly So what does contraband. if encompass? struggling grounds While search? And what prove protected making member of the inmate no denies the statement? disputes class has been found contraband he off’ or “nodding ever Or nature, By police its individualized come to them. “nervous”? arrest Could that rely observations and di- claim dismissed out of suspicion will on be hand? Not ac- (if impossi- cording plaintiffs that will hard to agnoses (including Marcy be Cor- ble) neau, relay judges and to and arrested for “fighting boy- to record with her friend”) years dissent, after the event. juries put months who would jail prove onus on the to some past brings my objection me to third Which instance where a of someone judicial ex- to the creation of sub-classes arrested for yielded domestic violence empt regime, namely from a search that it a least dirk. likely, inevitably, require far perhaps will judicial illustrates, much in the ad- too involvement As this case institutions easy equipped ministration of the sub-class. It’s aren’t to deal with such chal- enough say going lenges, generally who and is not which call justifica- general population jail, just past enter the of a tions for conduct that no one knew Thus, easy say going engage as it’s who is would required. plaintiffs be visit, try get in a contact board a commercial air- the dissent mileage out of the craft, a a rail- fact public building, enter drive that defendants have been unable to play high point single road or school football. The to a member of the class found activity question carrying 990-91, defines the class. But contraband. Dissent at 997, 997-98, 998, 998-99, carving once courts start out constitution- 1000. But at the ally conducted, favored sub-classes because the mem- time the searches were there belong imaginary group to some with by plaintiffs bers was no class as defined risk-rating court, than class as a lower the district so no one knew such whole, getting justification courts cannot avoid inti- would required. The re- mately involved in the of the activ- ports prepared by conduct to record the ity. generated finding This one case has a sub- accordingly of contraband are am- record, biguous; very conclusively stantial countless lower court few show that no than pleadings appellate less seven the individual found with contraband was Yourke, opinions class, far. And in- case not a member of the and about half —so search, just a volving single strip entirely why has been silent as to the individual If ongoing years. plaintiffs over six here was searched. Plaintiffs want us to infer succeed, every strip search will become a that no among contraband was ever found class, potential judges federal case. Federal hardly will but that’s fair. The truth that, record, running jails, along pretty start with we don’t know. Moreover, much everything Judge else. Tallman’s dissent from out, panel opinion points plaintiffs’ cen- The intervention won’t be limited to a never, tral claim members of the class action, either, single class as future liti- certainly ever conceal contraband is almost gants won’t be bound the lines drawn in wrong City as matter of fact. Bull v. earlier cases. If these were to Francisco, County prevail, nothing prevent a would future Cir.2008) (Tallman, J., dis- plaintiff trying from to show that wife- senting). criminals, general- aren’t beaters hardened ly anger past reports act out of and frustration and not The reason contraband and, though they might don’t disclose the crime for the indi- premeditation which or meat cleaver to threaten vidual was arrested is that it’s not golf ger- use club mates, likely packing purpose report, their aren’t to be mane to the which is piece property, possibly when to account for a implements up such their wazoos crime, quintessentially functions. of a that has executive or evidence illegal guidance from the authorities. absence possession into come entirely in Court—which is absent —I don’t litigation, are used reports ifBut such institution, authority have the to carve the believe we out against omissions held with of individuals under the Fourth sub-classes length- will be to response a rational then given preferred who must Amendment be any reports include information en the to Indeed, by government. treatment any case to that might be relevant sug- in opinion Court’s Bell v. bring. And it won’t plaintiff might future Wolfish 558-60, gests See 441 at otherwise. U.S. be reports: There will constant just be pose Some prisoners S.Ct. 1861. a to policies respond the next tweaking much accepting lower risk of contraband action, training as to what class endless visits, visitors are far contact some or a “weapon” a “controlled constitutes bring less likely to contraband than others. spent giv- hours substance” countless But in Bell Ivan nothing suggests testifying ing depositions and in court. Boesky, Michael Milken or Martha Stew- soon, in Pretty operating those involved pris- art treated other must be better than devoting institution be most of will oners after a contact visit with their white- energy averting liability time and their lawyers. possibility shoe The of these than running rather institution effec- markedly kinds of distinctions absent tively. from the Court’s discussion. shrugs big The this off dissent as no Thus, join while I Ikuta’s excel- Judge because, problem supposedly, the San full, sepa- lent in I opinion concur on the jail system operates Francisco better than we, ground rate that I do not believe as that, in policy under a enacted in ever authority judges, inferior federal have the effect, adopts the district court’s order grant they plaintiffs relief seek. the duration the lawsuit. Dissent dissenting But our colleague 997. mis- GRABER, Judge, specially Circuit Hennessey the record. Both reads Sheriff concurring: Dempsey express and Under-Sheriff because, I in specially concur the result policy; they doubts the new grave about agree I with I II of although Parts they quite putting make it clear that dissent, part company I with its conclusion up liability, with it in to limit their order unconstitutionality in III Part but that believe it “increases the dan- strip-search policy San Francisco’s was ger to staff and inmates” and “will lead clearly established the time of the higher illegal a incidence of contraband events in question. jails.” snippet quotation ex- dissent, cerpted in the to the effect case, The most Court relevant policy right the new “strikes balance Bell v. Wolfish, inmates,” safety rights of between and the (1979), an across- approved L.Ed.2d id., from portion Dempsey comes a strip-search the-board inmates a dealing affidavit different search every contact an out- following visit with that is appeal. not at issue this definition, By newly per- sider. arrested simply suggest- The dissent mistaken son, similarly, just has an been outsider. that the interim intake ing works as Moreover, acknowledges, as the dissent challenged policy. well as the (such categories pretrial some detainees I justifying have difficult time with a criminal record and those those judicial drug kind of interference in of- what are arrested for violent offenses fenses) pose significant bring- do risk of Charli Johnson was operat- arrested for jail. into the Those ing ing contraband cate- a motor suspended vehicle with a li- may, gories people constitutionally, alleges cense. She she forcibly strip-searched entering before searched male in hallway, officers fact, jail population. procedure, That kept room, that she was in a cold naked protects people like the named for twelve hours with male regu- officers unwillingly who find themselves in the larly viewing her. No contraband was facility dangerous same as more detainees. found. She was released the next day. charges No were ever filed. Finally, none of our prior cases was sufficiently signal similar this one to Galvin, Sister Bernie a Catholic nun and unequivocally that the San Francisco poli- a member of the Sisters of Divine Provi- cy improper. was dence, was arrested at an anti-war demon- stration for trespassing. She was I

Although agree fully with the dissent’s jail. searched at the No contraband was analysis constitutional with the distinc- found. that the tions dissent draws between Bell situation, I say and this cannot that the Michael Marrón was arrested for alleged unconstitutionality of this policy was clear- Nikko, credit card fraud at the Hotel ly January established before 2004. searched, allegedly beaten and left in naked a cell for over ten hours. No result,

Accordingly, I concur in the but contraband was found. charges All were reasoning, majority opinion. not the of the

eventually dismissed. THOMAS, Judge, Circuit with' whom Timbrook, Laura who was arrested for WARDLAW, BERZON, Judges checks, bouncing small body cavity was RAWLINSON, join, dissenting: searched twice. No contraband was Mary Bull political was arrested at a found. Deborah Flick alleges she was ar- protest pouring dye red mixed public intoxication, with rested for forcibly strip syrup ground. corn on the At the police searched and left bleeding naked and station, according testimony, to her she overnight. cell Salome Mangosing, arrest- pushed drunkenness, was to the floor and her clothes public ed for was forcibly removed. Her face was smashed searched and forced to remain naked for against the jailors concrete cell floor while Again, twelve hours. no contraband was performed body cavity search. Leigh She was found. Fleming was arrested for hours, left naked in the cell for eleven then disturbing peace. body cavity She was subjected body cavity to a second search. searched and confined naked in a cold jail, After another twelve hours she room for five hours. No contraband was found, was released on her recognizance. own charged and she was never with a never charged She was with a crime. crime.1 course, allegations, However,

1. These of remain to analyzing grant members. said, proven being many at trial. That summary judgment of the qualified on the basis undisputed immunity, accounts of the searches are we construe the entire factual rec- record, dispute light and there is no about ord in the most favorable to the non- charges moving party whether were filed or contraband dis- in order to determine whether majority, relying entirely covered. The while there has been a constitutional violation. 194, 197, argument, data as the Haugen, non-class basis its Brosseau v. suggests (2004). precluded that the from 160 L.Ed.2d 583 This anal- citing probative ysis drawing evidence from non-class permissible includes all infer- offenses, a leash violating such as minor anyone suspect- testified officer No code, hiding pose and who no were or a traffic these individuals law any of ed and, to no body smuggling orifices contraband credible risk contraband found. no contraband re- surprise, jail. reconfigured one’s its into the Under forcibly stripped and Rather, they were require- majority discards Bell’s gime, the mandated under a searched a search balance the need for ment everyone body cavity searches routine privacy and instead against individual for the Francisco classified arrested in San performing blesses a uniform of how regardless population, arrested cavity everyone searches on the offense. petty general jail popula- for the designated tion, triviality regardless of were un- holding such arrestee the likelihood that the faithfully charge or constitutional, court the district hiding century contraband. quarter of Ninth Circuit applied a law, with the law which was consistent abrupt prece- The rationale for this our sister circuits. Under all one of but quicksand. founded on departure dential is of con- nearly interpretation uniform Indeed, argument entire government’s law, body cavity strip stitutional logical fallacy ergo cum hoc is based on justified by individual- of a detainee happenstance implies causa- propter hoc— that the search reasonable ized argues that contra- government tion. The jailors If have no reason- bear fruit. will in the San Francisco band has been found categor- be suspicion, able the search must reasons, Thus, indi- jails. government empirical on evi- ically reasonable based smug- must be viduals who are arrested necessary. Jailors that the dence Therefore, jail. into the gling contraband whose search those are entitled concludes it must government history, charges, probation criminal arrest arrested, everyone who is cavity search status, a rea- suspicious or behavior create concealing pose who no risk of even those believing per- justification for sonable contraband, trying smug- much less of concealing contra- might arrested be son jail. into the gle contraband body cavity. interpretation That band leading Supreme with the was consistent reasoning support finds no from This topic, Wolfish, on the Bell v. Court case Although in this case. there is the record 520, 559, attempting to of some arrestees evidence (1979), required which “bal- L.Ed.2d arrest, during contraband their conceal particular need for the ancing of the example single there is not a documented personal invasion of against the intent of anyone doing so with entails.” rights that the search jail. into the More smuggling contraband there is not importantly, purposes, for our majority sweeps away twenty-five The the class single example anyone from jailors the years jurisprudence, giving who was by the district court defined mandatory, right unfettered to conduct upon being possess found to contraband routine, body cavity suspicionless Not one. may arrested for searched. any citizen who sure, portion of the com- light most favor lations. To be enees from the record in the appeal, in the non-moving party. Elique, plaint, which is not issue to the Dias v. able However, (9th Cir.2006). injunctive sought relief. claims The appeal damage § particular majority suggests at issue on this also these constitutionality challenging the of the plain claims facts cannot be examined because the actual, theoretical, regu- invalidity searches. have facial tiffs asserted Indeed, And, ironically, the record shows as the record in this case and others plaintiffs demonstrates, of the individual who that most policies such result in abu- body cavity sive, searched were never ac- unnecessary were body cavity searches of jail tually placed general population those pose security who no risk. This they at all. Because were never housed provides evidentiary record no reason to detainees, these individuals with other justify the abandonment long-stand- of our posed absolutely “smuggling” no risk of ing precedent, every constitutional general jail population. into the contraband uphold reason to it. I respectfully dissent. They body cavity anyway, were searched I

simply they because were classified jail in the potential placement general pop- January 2004, Until San Francisco had ulation. strip searching all pre-arraign- Most of the individual were entering ment arrestees County Jail No. crime, charged any either never 9 who fell into certain categories. Some charges had the dismissed. There is no arrestees were searched because of the pros- evidence the record of a successful they crime charged were with or their against plain- ecution of the individual histories; criminal some were searched tiffs. solely because were classified for housing population. court carefully

The district defined the policy applied to all arrestees classi- all plaintiffs, excluding class those housing fied for general jail popu- objective whose characteristics bestowed lation, even those arrested for violating justify sufficient reasonable to a minor traffic laws—like carry failure to body cavity search. Not is there not insurance or driving suspended with a li- single example any a of class member cense. The strip procedure contraband, possessed searched who there invasive: it inspection involved of the no is statistical evidence the record that body, naked including the arrestee’s jails the amount of contraband found in the breasts, buttocks, genitalia, as well as during period decreased when all ar- inspection visual body arrestee’s body cavity restees were searched. And Mary cavities. Bull class happened what has to the amount of con- similarly-situated of plaintiffs brought suit jailors traband found inside cells since the against City for violations of their adopted a more constitutionally ap- sound Fourth and Fourteenth Amendment proach? government The cannot show rights. any there has been increase at all. Judge Breyer, presiding over the dis- though

Even it has no record evidence court, trict tailored the class of support theory, government its nev- extremely narrowly. In an order issued presses ertheless us to abandon all consti- 10, 2004, June the district court defined protections tutional and to bless mandato- the class as: ry body cavity routine searches of those who, pose who, as a group, persons no reasonable risk of All during applicable secreting period limitations, contraband. All but circuit one of and continuing to rejected date, has approach, good rea- were any charge arrested on routine, son. Suspicionless, mandatory involving weapons, controlled sub- stances, strip policies flatly violence, felony charge contradict the or a balancing Supreme of interests that and not involving parole violation of (where Court instructed us to probation has undertake. violation of consent A proba- a condition of such subjected to a blan- tion), were and who The begin principles. We with first by cavity strip search body ket visual eval requires Fourth Amendment at a San arraignment defendants before of tradi light uate “a search or seizure facility without County Jail Francisco ‘by of reasonableness as tional standards hand, suspicion sessing, degree reasonable the one any individualized pri an upon which it intrudes individual’s concealing contraband. they were and, other, 1) vacy degree on the to which all arrestees also includes This class promotion legitimate it is needed for the blan- subjected subsequent who were ” v. governmental Virginia interests.’ search(es) arraignment before ket Moore, 1598, 1604, search, without initial after the (2008) (quoting Wyoming 170 L.Ed.2d 559 suspicion that individualized reasonable 295, 300, Houghton, 526 U.S. S.Ct. acquired and hid- subsequently had (1999)). 1297, 143L.Ed.2d 408 2) persons; on their den contraband inquiries Fourth Amendment are driven who, arraignment, prior to persons all by specific context which searches visual subjected to blanket were analysis arise. Our “reasonableness” search(es) placement cavity incident bound the facts the individual case any of the “safety cell” at San v.Harris, before us. Scott County Francisco Jails. (2007) 1769, 167 L.Ed.2d Francisco, City County Bull (describing inquiry as a “factbound 2004) (or- (N.D.Cal. No. 03-01840 June morass”). long has Court injunction). The denying preliminary der recognized although the constitutional by the district class was further limited rights prisoners and arrestees are re order, February which court’s “[tjhere laxed, is no iron curtain drawn held that San Francisco’s prisons between the Constitution and the McDonnell, their searching arrestees on the basis of country.” of this 418 Wolff 539, 555-56, 2963, history City criminal lawful. Bull v. 94 41 L.Ed.2d U.S. (1974); Francisco, Safley, Turner v. 482 see also No. 03- County San 78, 84, 2254, U.S. 107 S.Ct. 96 L.Ed.2d 64 (N.D.Cal. 23, Feb. 2006 WL 449148 (“Prison (1987) do not form a barrier walls 2006) (amended re motions for sum- order prison protec inmates from the separating mary judgment). The class before this Constitution.”). tions of the arrestees who were Court thus solely prior arraignment searched be- Specific security concerns affect the con- they housing for in stitutionality cause were classified of a search. Friedman v. (9th Cir.2009) Boucher, no population posed the (“We carefully ... adminis- have confined objective they smug- other risk that would at detention facilities to trative searches gle contraband. reasonably security related to con- those cerns.”). performed Searches on arrestees II security that do not contribute to precedent Court and common (hold- at are unconstitutional. Id. 853-57 compel sense the conclusion ing unconstitutional a search to obtain routine, mandatory, suspicion- Francisco’s pur- from a detainee for the buccal swab body cavity less the information for a DNA pose gathering violated cases). designed bank to solve cold Constitution. equal. are created The searches after contact visits. The Not all searches that case all required differentiates between inmates in Fourth Amendment New searches, York’s Bureau of Prisons and re facilities “to ex- and less intrusive more pose body their cavities for justify inspec- visual varying levels of need quires tion as a of a part search conducted scope of searches. “[T]he kinds different every after contact visit with a intrusion, person light of all particular the Bell, from outside the institution.” case, U.S. central exigencies [is] 1861; at 99 S.Ct. see also id. at n. analysis in the of reasonableness.” element (describing 99 S.Ct. 1861 the search Ohio, 1, 18 Terry v. n. 88 S.Ct. procedure). (1968). 1868, 20 L.Ed.2d 889 Because the “requires balancing Amendment Fourth Although policy gave the Court particular for the of the need “pause,” id. at 99 S.Ct. personal rights against the invasion ultimately upheld policy’s Court consti- entails,” Bell, the search tutionality. The Court considered “wheth- 1861, the 99 S.Ct. most invasive search body-cavity er visual inspections as con- justified only by compelling the most need. templated by the facility] [detention rules Mary City Chicago, Beth G. v. See can ever be conducted on less than proba- (7th Cir.1983) (“The 1263, 1273 more Balancing ble significant cause. search, govern the closer intrusive legitimate security interests of the institu- mental authorities must come to demon against privacy tion interests of the believing strating probable cause inmates, we conclude that can.” Id. objects the search will uncover 99 S.Ct. 1861. The Court thus set (cit being the search is conducted.” which justification for strip searches at some- ing Terry, 392 U.S. at 18 n. cause, thing less than probable but de- 1868)). explicitly specify clined to the level of sus- picion. this case are personal most serious of invasions. “The analysis, its the Court reiterated the body-cavity of a can- intrusiveness case-by-case nature of Fourth Amendment Strip searches involv- not be overstated. inquiries:

ing exploration the visual cavities The test of reasonableness under the dehumanizing humiliating.” [are] Fourth Amendment is not capable of v. Los Kennedy Angeles Dep’t, Police precise definition or mechanical applica- (9th 702, Cir.1990), F.2d 711 abrogated In it requires tion. each case a balanc- grounds by Bryant, other Hunter v. 502 ing particular of the need for the search 534, 112 116 L.Ed.2d 589 U.S. S.Ct. against personal rights the invasion of (1991) Bell, curiam); 441 (per see also U.S. that the search entails. Courts must 576-77, (Marshall, J., 99 S.Ct. 1861 dis- scope particular consider the of the in- (“In view, senting) my bodycavity trusion, the manner in it which is con- represent ... one of the most ducted, justification it, for initiating against dignity grievous personal offenses it place and the in which is conducted. decency.”). Only truly a and common Bell, 441 U.S. at 99 S.Ct. 1861. The justifies an compelling need such invasive case-by-case, search-by-search method de- search. by passage suggests scribed that a Bell, routine, mandatory, strip policy, that search In Court case ab- categorical sent or sus- governs inquiry, our the Court considered individualized constitutionality strip would be unconstitutional. prison picion, of 994 a Ackerman, strip policy search of misdemean- cavity 614 746 F.2d In v. Giles overruled,

Cir.1984) curiam), to a determination re- prior on other or arrestee (per Vina, eligibility v. dela arrestee’s for an Hodgers-Durgin garding the grounds by (9th Cir.1999) (en n. 1 unconstitu- recognizance 1040 release was 199 F.3d own banc), require to interpreted Bell we tional. to have reasonable administrator Angeles, Thompson City In v. Los of strip searching an arres suspicion before (9th Cir.1989), held that the F.2d 1439 minor offense. Id. at with a charged tee felony strip person search of a arrested (“[A]rrestees minor of charged with theft auto was valid because the grand subjected strip to may fenses “sufficiently associated with charge was a reasonable only jail possess if officials search,” justify a visual violence the individual arrestee is suspicion that intermingling also that with the but noted contraband.”). In concealing carrying or jail by not population itself did on the lan holding, we relied so justify the search. Id. at 1447. existing on the in Bell but also guage year, we held unconstitutional The next See, e.g., of other circuits. interpretations City mandatory, Angeles’s of Los rou- (“[Ensur G., 723 F.2d at 1273 Mary Beth tine, subjected all City by strip of the ing security needs body cavity felony arrestees to visual unrea searching plaintiffs-appellees was Kennedy, 901 F.2d at 713-14 search. suspicion without a reasonable sonable (holding felony the mere fact of a dan authorities either twin charge relationship bears no reasonable gers concealing weapons or contraband concerns). security institutional existed.”); Shealy, v. 660 F.2d Logan (4th Cir.1981) (“An indiscriminate holding our reaffirmed Giles We routinely applied de recently Way County as 2006. Ven constitutionally justi ...

tainees cannot be (9th Cir.2006), tura, simply fied on the basis of administrative denied, cert. security attending ease in consider (2006) (recognizing “the 166 L.Ed.2d 513 ations.”). difficulty operating facility a detention safely, the seriousness of the risk of revisited Giles on a number of We’ve contraband, and occasions, reaffirming smuggled weapons each time the indi we owe officials’ exer suspicion vidualized reasonable standard. deference County Diego, judgment adopting cise of and execut Ward (9th Cir.1986), denied, necessary maintain ing policies 1331-33 cert. institu security,” concluding tional but that “a 97 L.Ed.2d (1987), constitutionally ac [not] we held absent reasonable blanket jail officials’ possession weapon ceptable simply by of a virtue of concerns”).2 contraband, routine, body security mandatory, invocation Court, slightly part could not 2. The in a different tional in because school context, any would recently the idea that a show evidence that search bear reaffirmed (holding that "the strip policy fruit. See id. at 2642 con- search violates the Fourth Amend- degree suspicion” match "the when little evidence that tent of the must ment there is categorically discovery and that "the ex- will in the of contra- of intrusion” searches result requires of a search” Sch. Dist. # 1 v. treme intrusiveness band. Safford Unified - -, justification suspected beyond Redding, in facts” U.S. 129 S.Ct. "some (2009), "general background possibilities"); id. at the Court held that a L.Ed.2d 354 (“[W]hat missing from the sus- strip schoolgirl 2642-43 was search of a was unconstitu- or overwhelming majority suspicion categorical of circuits able reasonable- The Bell mandates a reasonable empirical that ness based on evidence that believe However, even if we standard. suspicion policy necessary. is a applica- On careful not, very that it does Bell at assume precedent tion of as to those arrested for factbound, a data-driven least mandates offenses, minor the district court conclud- categorical reasonableness inquiry into policy ed that San Francisco’s could not be Categorical of the search.3 reasonableness justified by suspicion either reasonable or It rely suspicion. must on situational is categorical reasonableness. The district by probability that the search informed entirely court was correct. Gates, fruit. will bear See Illinois 76 L.Ed.2d B (1983) (noting only proba- that “a fair or of a bility that contraband evidence majority suggests The that Turner in particular place” crime will be found a might apply as to supplant well the tradi- search). justifies the need for a analysis. tional Bell Turner considered clearly The district court understood the constitutionality of restrictions on in- applied long standing precedent. mate marriage correspondence. In so Breyer put it: Judge As doing, Turner set a new standard —one indignity strip The search is more deferential to administrators a great. And is not minor or incidental than by the standard set which Bell— humiliation. a intrusion [on] It’s serious judge prison regulations that impinge person’s personal right privacy, rights. on inmates’ constitutional See And I think my view. don’t there’s Turner, 89-91, 482 U.S. at 107 S.Ct. 2254. amount of large argument over Bell, however, Turner never overturned point. Thus, directly and Bell controls it here. is Therefore, there has to be a countervail- apply, Bell’s standard that we must safety concern that ing would warrant Rodriguez Quijas Turner’s. See de type of intrusion. That is what this Inc., Express, Shearson/Am. any complicated It is not more about. L.Ed.2d 526 that, than I think. (1989) (“If precedent of this Court has case, that, yet application appears The district court understood un- direct precedent, rejected and our rest on der Bell reasons some other line decisions, justified by Appeals must be individualized reason- the Court of should 1985) ("Because pected any danger ... County's facts was indication of Lubbock suppose to the ... and students reason to applied was to minor offenders carrying pills searchee] in her [the awaiting bond when no reasonable underwear. We think that the combination of category existed that aas of offenders finding deficiencies was these fatal individually might possess weapons or contra- reasonable.”). band, balancing under the test of Wolfish poli- find such searches unreasonable and the categorical approach strip searching 3. The cy to be in violation of the Fourth Amend- everyone majority proposes is novel added)). (emphasis any categori- ment.” For practice. employed No other circuit has approach cal to adhere approach. such an circuit to men- Constitution, narrowly it to the must tai- categorical approach is the tion similar grounded empirical lored and evidence Fifth, explicitly rejected which it as a broad necessary applied that the to the avoiding technique for the reasonable brush question. category of detainees suspicion requirement. See v. Lub- Stewart 153, (5th County, F.2d Cir. bock 767 156-57 996 controls, sure, directly presumption of innocence. To be the case which

follow (which prerogative management jails may this Court the of of leaving to house decisions.”); convicts) own Powell v. overruling pretrial its both detainees and and (11th 1298, (which Barrett, convicts) F.3d 1302 Cir. prisons many 541 house share 2008) (en banc) (declining apply considerations, the management common but “[ujntil stating and analysis rights Turner standard of of pre-trial the the de- tells us that the Bell Supreme the Court tainees and convicts must differ because longer applies where that approach no penological apply pre- interests do not it, Thus, we are inclined to contin applied Court trial detainees. the of “balancing it”); City v. Richardson using particular ue Watt the for the against need search (5th F.2d Cir. Dep’t, personal Police the invasion of rights that 1988) (“Analysis city’s entails,” Bell, U.S. at actual policy and of the search conducted pre-trial detainee context ends, practically begins, on Watt quite analysis is different from the Bell.”). Supreme Court’s decision particular whether a prison regulation that impinges rights on inmates’ constitutional Further, underpinnings of Turner “reasonably related to legitimate peno- significantly are different from those con- Turner, logical interests.” 482 U.S. in Bell. Turner incarcera- sidered involved 107 S.Ct. 2254. The distinctions between Thus, tion of convicted criminals. the test analyses particu- the Bell and Turner are developed applica- in Turner involved context, larly important which in- “legitimate penological tion of interests.” volves some detainees who were never “Penologi- S.Ct. 2254. charged even with a crime. The cal interests are interests that relate to the never analyses Court has conflated the (including punishment, treatment deter- Bell and Turner. Neither have we etc.) rehabilitation, rence, persons con- involving a pre-trial case detainee.4 Bell Fraser, Benjamin victed of crimes.” v. governs inquiry our here. (2d Cir.2001). 264 F.3d 187 n. 10 “ ‘Penological’means relating theory to the C practice prison management criminal Arpaio, rehabilitation.” Mauro v. Fourth Because the Amendment reason- (9th Cir.1999) (en inquiry factbound, 188 F.3d ableness we must banc) (Kleinfeld, J., dissenting). “The word consider specific whether the facts of this is derived from the Greek and Latin justify words case San Francisco’s blanket strip meaning penalty punishment, policy. Viewing still in the facts roughly thing.” means the same Id. Peno- light most favorable to the plaintiffs —as logical punishment, summary deter- must on judgment quali- considerations — rence, immunity, rehabilitation' —have no relevance to fied Olsen v. Idaho State Bd. of Med., (9th Cir.2004)— who detainees have not been convicted of 363 F.3d any enjoy crime. These justify policy. detainees still the facts fail to sentences, majority already serving 4. The cites Ninth Circuit cases for and Michenfelder proposition security that the Turner standard al was in maximum unit. Conse- ready incorporated quently, actually has been legiti- into Bell cases: these cases involve Souza, interests, Thompson penological 699-700 mate and therefore Tur- 1997); Sumner, They Cir. provide support ner. do not Michenfelder (9th Cir.1988). applying involving 332-33 Both Turner's rationale to cases distinguishable. Thompson pre-trial Both and Mi detainees in the de- circumstance brought by prisoners involve claims scribed in Bell and the instant case. chenfelder court, Francisco could have satisfied the member. As an appellate gen- San “[i]n eral, only set out in Bell had it been able to we consider standard the record that was produce reasonable for its before the district either court.” United States Grace, justify policy categorically or its searches W.R. Cir.2007). specific smug- information, evidence of Absent

by presenting more the among plaintiffs provides the class of in this record gling anyone no evidence that challenged portion of Fran- qualify membership case. The San who would for in the such possessed cisco’s did consider individ- certified class concealed contra- required strip ualized factors and instead band. That result unsurprising. People is solely of arrestees based on their with no criminal history dog who violate housing laws, in the or mandatory classification leash insurance aas class, Thus, population. pose security San Francisco was re- fewer risks than those quired categorical to demonstrate at least arrested for acts of drug violence or of- reasonableness. fenses. City’s evidence, great:

The burden was not Given this lack of one might already court had done much why City district of wonder pressing argu- its City’s by excluding all, work most strongly. arres- ment so After changed it has essence, In tees from the class. the dis- its to conform to the Constitution. found, law, trict court as a matter of It now requires individualized suspicion City objective satisfied Bell’s reasonableness re- based on factors before cav- quirement ity for all detainees arrested on searching an arrestee. According to violence, weapons, or controlled substance by government, affidavits filed charges parole proba- or for violation of new works well and “strikes the tion, history. or who have a criminal right safety balance between and the plaintiffs small set of that the district court rights Nothing of inmates.” in the record proceed suggests allowed to were those whose surge sudden of contraband backgrounds give accompanying did not rise to the cate- policy change. gorical suspicion necessary justify government’s The real answer lies in the City’s search. It was thus the bur- testimony affidavits. In the by submitted prove den to the narrow class of government, complain officials it strip searching. warranted is administratively comply inconvenient to Francisco

San could not meet its bur- with the Constitution: that it requires ad- den. all the training Of incidents of discovered ditional for its officers and that it contraband documented Defendants could save time if it did not have to con- court, presented to Indeed, the district not one duct individualized assessments. single documents a in- large uncontroverted record in beyond this case shows possessing stance of class member con- doubt administrative inconvenience when justification traband arrested and searched. In Francisco’s sole some instances where contraband was searching class members. But mere found, charging are missing justify documents bureaucratic discomfort does not violations, and we are unable to determine whether constitutional and the qualified the arrestee would have as a repeatedly Court has told us so. See instances, Richardson, member of the class. other Frontiero v. (1973) history

the criminal of the arrestee is miss- L.Ed.2d ing, again making it impossible (“[Although deter- efficacious administration of governmental programs mine whether the arrestee could be a class is not without 998 falling that detainees simply no evidence recog- Constitution importance,’the

some extremely plain- narrow class of effi- into the speed than values higher nizes ” Illinois, by Judge Breyer attempted tiffs certified Stanley v. 405 ciency.’ (quoting Nor, smuggle contraband. L.Ed.2d to 31 92 S.Ct. U.S. matter, any all any there evidence at of Dist. is (1972))); States U.S. United 551 by anyone smuggle to contraband 297, 321, attempts Court, 92 S.Ct. 32 (1972) Certainly, concealed contra- added via arrest. (“Although some L.Ed.2d during strip-searches Attorney band was discovered upon the imposed will be burden however, members', nothing non-class justified General, inconvenience this that these incidents in the record indicates constitutional val- society protect free to ues.”). anything more than an arrestee Further, that the involved the record shows contra- attempting possessed to conceal of the new inconveniences administrative upon arrest. to have indi- band an official policy requiring — an inspecting before vidualized Second, As a planned. contact visits are pose cavities—did not body arrestee’s sense, contact visits are matter of common heavy burden. particularly likely smuggling than far more lead Indeed, contrary to the absolutely initial arrests. there is no evidence Because case, in evidence in this the record other smuggled into the that contraband members, “despite thorough San cases has shown by eligible class searches, in smug- contact visits result categorical had no or Francisco reason — contraband, drugs.” gling particularly fall- suspect that arrestees otherwise'—to McCarthy, certified in Toussaint v. ing plaintiffs into the class of (9th Cir.1986), abrogated part smuggling this case were contraband. Conner, 515 Thus, grounds by other Sandin v. Francisco’s L.Ed.2d 418 the Fourth U.S. 115 S.Ct. was unreasonable and violates (1995). supports in this case The record Amendment. finds its the conclusion that contraband conclusion is consistent with the This way City’s jails through into the means Bell, in Bell. In Court’s decision smuggling during other than arrest. was constitutional because con- City presence documented the has it both a Court had before However, approxi- in its cells. traband smuggling categorically and a record of 150,000 three-year mately searches over justification policy. reasonable facility, City could period in the intake First, had before it a record Court court only produce evidence to district showing attempted that inmates often contraband was dis- of 78 incidents where prisons after con- smuggle contraband into intake during covered an search. Although “petitioners proved tact visits. those, course, involved class None of [prison facility’s] one instance members. history was found short where contraband search,” Bell, suspi- individualized reasonable during body-cavity Absent that the class of evidence at all “inmate at- cion smug- presented fa- here risk tempts to secrete these items into the City speculate left to gling, cavities cility by concealing them con- attempting smuggle record and in other detainees are documented (internal by conceal- cases,” into detention centers traband id. Indeed, omitted). Here, during arrest. ing citation not even contraband record that some detainees City suggested could be made. There is has showing smuggle contraband D just arrested get There is not even anecdotal prisons. into The realities of the constitutional issues notion, impermis- which is support for this here at stake are far from trivial. The only gossamer “on the sibly founded strip Seventh Circuit has described whimsey, and con- speculation threads of “demeaning,” “dehumanizing,” searches as 461, jecture.” Sargent, Hahn v. 523 G., “repulsive.” Mary Beth 723 F.2d Cir.1975) (1st (quoting Manganaro 467 at 1272. The Tenth Circuit has called Co., 389, Separator 309 F.2d 393 Delaval Nichols, “terrifying.” Chapman them Cir.1962)). (1st just There is no evidence (10th Cir.1993). 393, 989 F.2d 396 The at all in the record that class members Eighth Circuit has called them “humiliat- Fran- security risk to the of San pose ing.” Auger, Hunter v. 672 F.2d 674 jails. cisco (8th Cir.1982). ignore to this stark record We are asked Many reports document the unfortunate theory always defer ought on the connection between searches and sex- jailors security, on matters of whether prisoners. Cheryl ual abuse of See Bell et government plausi can make a or not the al., Rape and Sexual Misconduct in the security that a exists at showing ble risk System: Analyzing Prison America’s course, prison admin all. Of deference Pol’y Secret, “Open” Most 18 L. & Yale maintaining instrumental istrators (1999) (“Female 203 inmates Rev. Bell, 441 security. See U.S. prison reported guards have also improperly ingrained 99 S.Ct. 1861. Such deference is performing touch them while system judicial into our review. See searches.”).5 Procunier, generally Pell v. 417 U.S. One need look to the record before (1974). L.Ed.2d 495 S.Ct. us to find troubling instances of abuse However, deference to correctional “blind during process. The no real service to them.” officials does Mary Bull, plaintiff, named was arrested (Mar Wolff, S.Ct. during political protest. for vandalism shall, J., dissenting) (quoting Palmigiano claims that after she She declined to con- (1st v.Baxter, Cir. search, body cavity sent to a she was told 1973)). Court has instructed consented, that unless she she would be A deference has its limits. forcibly strip alleges searched. She judicial encompass any restraint cannot if an officer told her that she did not cognizance failure to take of valid constitu consent, she would be “thrown into a cold arising tional claims whether a federal room, naked, for 24 hours.” She declined au or state institution. “[I]f consent, happened and describes what thorities do not conform to constitutional next: minima, obligation the courts are under an steps remedy forcibly strip to take the violations.” I was then in an searched 337, 362, v.Chapman, persons Rhodes area visible to not participating, (1981) (Brennan, off, my my pulled legs 69 L.Ed.2d 59 clothes were were J., squatting position into a I concurring). Our deference reaches its thrown while lying limits here. was on the floor front of male International, Amnesty part lang=e 5. See "Not 2222D1AABEA8025690000692FC4& also (last 2009) my (detailing sentence”: Violations of the Human visited October in- Rights Custody, http://www. occurring during strip of Women in stances of sexual abuse searches). amnestyusa.org/document.php?id=D0F5C De Ranleau who was arrested for rectal areas Michele My genital and officers. lodging, allegedly was illegal inspected. were twice, left in a cell naked for searched search, Bull’s “face was During the charges dropped. hours. All were twelve pris- concrete” against the smashed was then left naked on officials. She Laura Timbrook was arrested for writ- hours. In the morn- for twelve cold room an account ing checks on with insufficient from the cell and ing, was removed she body cavity funds and searched twice. required that she again informed alleges Flick she was arrested for Deborah search. She declined. strip consent to a intoxication, forcibly strip public searched again, searched forcibly strip She was in a bleeding and left naked and cell over- room for another left naked a cold again The record contains other similar night. then released on hours. She was twelve Many persons of the who testi- examples. has never recognizance. own She her charged to this treatment were never fied any offense.6 charged been with actually crime and never housed general jail population. in the Mangosing, public arrested Salome drunkenness, kicked alleges she was accompanies That abuse often mandato- during lay her search repeatedly while she body cavity ry searches should sur- ground. According on the prostrate prise Body cavity us. searches dehuman- placed official her Mangosing, one them, subject who are ize those Mangosing’s on neck while another foot performing those routine searches vol- arm back. Man- twisted her behind her ume become desensitized to the invasion of to remain naked for gosing was forced body privacy. Enforcing the minimal con- twelve hours. right stitutional of individualized consider- Marrón, ation of forces to view those

Michael who was arrested for risk officers hotel, humans, fraud at a local as individual rather than alleged credit card arrested searched, objects strip allegedly booking-numbered pro- was beaten to be in a cell for over ten hours. cessed.7 and left naked majority plaintiff characterizes the lead consent form constituted "bizarre” behavior

6. The complaint solely challenge fitting placement safety Bull’s as a to the the criterion of in a jail's safety policy. objection impeded process.” cell cell because "it the intake affidavit, majority plaintiff to a reference to a who also In her Bull claims that an officer challenges safety body cell is somewhat her that she did not to a told if submit puzzling, given majority’s that the entire ar- cavity search she "would be thrown into a gument during room, naked, rests on the contraband found cold for 24 hours.” Bull did strip searches of out-of-class members. Nev- forcibly not consent and strip-searched er-the-less, allegations Bull’s actual are much safety cell. She testified that she was left challenge safety a to the cell broader than cell, naked, morning, overnight. in the In the policy. placed safety She was in a cell for a cell she was removed from her and informed incarceration, portion and the of her district that she had to consent to a second summary judgment denied her because court cavity objected, forcibly search. She and was genuine concerning issues of material fact bodycavity searched a second time. She testi- particular the However, of her circumstances search. cell, again a fied that she was left naked in placed the reason Bull was assigned eight a but later beds, to room with bunk safety cell was because she refused consent stayed where she until her release. time, strip At that all arres- searched. generally sign consenting Philip a 7. See tees were asked to form Zimbardo, The Lucifer Understanding However, person People How Good if the detained search. Turn Effect: (2007) it, (describing the effect of the Stan- sign he declined to or she was Evil prison experiments guard anyway. According ford and inmate searched to an officer detention, interaction). sign involved in Bull's refusal to interests at stake in ing human the balance of severely so erodes A with that re way dispensed in no upon constitutional [Bell] and intrudes dignity Dell, justification. quirement.” We Weber requires strong rights (2d denied, Cir.1986), cert. defer- have, past, proper afforded 3263, 97 L.Ed.2d 762 of le- presented with evidence ence when (1987). However, San security concerns. gitimate any evi- only fails to offer Francisco not The First Circuit has also found to the belonging that arrestees dence suspi- not eliminate the reasonable Bell did smuggled contraband class of Spinney, requirement. cion Swain plau- jail, it does not even offer into the Cir.1997). (1st 1, 7 The Swain court sible, poli- justification for its hypothetical search of a found unconstitutional incon- cy, aside from minor bureaucratic woman arrested on of theft and cannot be Proper deference

venience. marijuana. The court held possession proof. complete on a absence of founded that “it that at least the reasonable is clear cannot be halted when the Judicial review suspicion governs strip standard and visual simply “because rationale is government’s body cavity searches in the arrestee con- ju- proper, I so.” Under deferential said that, have text” and that “courts concluded review, former man- dicial San Francisco’s Wolfish, strip to be reasonable under policy cannot datory body cavity search justi- body cavity visual searches must be muster. pass constitutional suspicion fied at least a reasonable concealing the arrestee is contraband or E Id.; weapons.” see also Wood v. Hancock (1st County Dep’t, vio- 354 F.3d 62 Concluding that the issue Sheriffs (“Our Cir.2003) case law holds that an arrestees’ Fourth Amendment lates the on a misdemeanor squarely in line with the law of individual detained rights falls charge may strip part searched as of majority of our sister circuits. the vast if booking process only the ma- officers have justifying strip policy, suspicion Fourth reasonable that he is either jority overrules two bedrock contraband.”). carrying Nota- v. armed or Amendment cases: Giles Ackerman would not have Angeles. bly, These the arrestee Swain Thompson City v. Los of membership in the just widely-cited by eligible our cir- been for class cases are not cuit, the cir- case before us because she was arrested they accepted throughout of a controlled substance. majority possession exiles us from the for cuits. The mainstream. legal similarly poli found Other circuits have in re- cies like the one before us unconstitutional. circuits are near-unanimous The Crouch, F.2d majority’s contention that Bell See Masters v. 872 jecting the (6th Cir.1989) (“Bell v. suspicion re- 1253-54 eliminated the reasonable Wolfish strip a a search. does not validate blanket quirement conducting for Circuit, searching pretrial in hold- detainees. Bell v. example, The for Second Wolf particularized authorizes searches strip searching all arrestees ish ing unconstitutional, objective circumstances indicate determined that Bell “did where maintain insti such searches are needed to ... read out of the Constitution denied, security.”), tutional cert. general application that provision of (1989); 107 L.Ed.2d 506 justified as reasonable under the search be Edwards, 739, 740, 742 770 F.2d imposition The stan- Jones circumstances. Cir.1985) (8th (holding unconstitutional probable cause determin- dard short 1002 degrading of a detainee arrested for mandate the far more and inva-

strip search dog stating run wild and allowing body cavity required by his sive searches justify “security seen, cannot the blanket policy. San Francisco As we have deprivation rights of the kind incurred requires the Fourth Amendment a “bal- here”); County, v. Lubbock 767 Stewart ancing particular of the need for the (5th Cir.1985) (holding un against personal the invasion of balancing constitutional under Bell’s test Bell, rights that the search entails.” to minor policy applied offend U.S. at 1861. The S.Ct. searches ers “when no reasonable existed in Powell were far less than intrusive category as a of offenders or here, requiring justification searches less contraband”), weapons or individually might possess If any for those searches. Powell has denied, t. cer persuasive power, justification it is that the (1986); L.Ed.2d 604 Hill body cavity for the searches the case (10th Cir.1984) v.Bogans, 735 F.2d compelling before us must be much more (holding intermingling justification than the the tamer population absent circumstances or Powell. prior suggesting possibility offenses opinions above-described from the in concealing weapons or contraband was First, Second, Fourth, Fifth, Sixth, Eighth, search); sufficient to warrant a Lo and Tenth fact that Circuits—and the gan Shealy, twenty-eight years Court has Cir.1981) (“An indiscriminate repeatedly comment-clearly declined to policy routinely applied to detainees such majority’s show that the interpretation of Logan along with all other detainees existing Bell falls far outside the jurispru- constitutionally justified simply cannot be dence. on the basis of administrative ease at security considerations.”), tending to cert. City’s policy The conclusion is clear: the denied, 942, 1435, 455 U.S. 102 S.Ct. routine, mandatory, suspicionless body (1982). L.Ed.2d 653 cavity searches of those arrested for minor majority The cites with approval pose offenses who no credible risk of con- recent Eleventh Circuit case Powell v. cealing contraband is unconstitutional. Barrett, Cir.2008) (en 541 F.3d 1298 banc). among Powell is alone the circuits. III (Barkett, J.,

Id. at 1315-16 dissenting) qualified immunity analysis, In a (“For thirty years, almost circuit courts must also consider whether the constitu- have followed the Bell Court’s instructions right tional violated Defendants was and, today, universally until held rea- clearly established at the time of the suspicion necessary sonable to constitu- — Callahan, search. See Pearson v. tionally justify types of searches before -, us.”). 129 S.Ct. 172 L.Ed.2d 565 inapposite Powell is also because (2009); Katz, 194, 201, Saucier v. 533 U.S. policy in that case mandated searches (2001). 121 S.Ct. 150 L.Ed.2d 272 far less intrusive than the ones here. Un- relevant, Powell, dispositive inquiry “The in deter- der the arrestees were required mining right clearly whether a proceed large to undress and to a estab- thirty forty room with lished is whether it would be clear to a other arrestees showering, to shower. After reasonable officer that his conduct the arrestees was were “inspected” by depu- front and back unlawful in the situation he confronted.” Saucier, ties. Id. at 1301. The did not 533 U.S. at S.Ct. 2151. for a mi- a detainee arrested strip search a reasonable is whether key inquiry The without reasonable law- nor offense actions his have believed could person carrying arrestee the individual undertaken. they were time ful at contraband; reasonable sus- concealing or 483 U.S. Creighton, Anderson (1987). as the on factors such picion was based L.Ed.2d 523 offense, ap- arrestee’s nature challenged strip City’s conduct, prior arrest pearance and It was January 2004. until place inwas record). con- time that by that clearly established large that the amount argue Defendants pre-arraignment searches ducting strip they pro- have documentary evidence fact that solely on the arrestees based from other distinguishes this case general duced to the for transfer assigned were case Because no other We search cases. unconstitutional. jail population was prob- a well-documented consideration confronted such consistently required have contend, charges, lem, the law was not factors, as arrest Defendants such individual behavior, However, suspicious specific history, clearly established. criminal pre-arraign- cases need not be materi- justify strip previous facts of court fundamentally the district to the situa- ally arrestees. As similar ment ... rather, “It was rightly ques- observed: question; this case salient tion Thompson abundantly clear after law at the is whether the state of the tion population in the placement warning officials fair that their gives time justify cannot ‘by itself Hope cannot See [sic] conduct is unconstitutional. ” County City Pelzer, 730, 742, Bull v. & search.’ Francisco, 03-01840, (2002). 2006 WL No. L.Ed.2d 666 2006). (N.D.Cal. Feb. at *16 Francisco documented The fact that San Moreover, explicitly held sever we have smuggling problem does a contraband clearly established times that it was The evi- clarity al of the law. muddy the Fran similar to San strip policies the district produced to dence Defendants Ward, we are unconstitutional. was a only cisco’s that contraband court shows sufficiently jails that “the law was concluded Francisco problem San significant public early expose so as to clear in it does not demonstrate generally; blan unreasonably authorized official who in this class eligible for inclusion persons offense arres of minor strip significantly, ket contributed Therefore, liability under U.S.C. all, tees to civil problem. to that even at Ward, (emphasis F.2d at 1332 § 1983.” not different policy is Francisco’s San added). policy Francisco’s Although San that we have held policies from enough with more seri charged arrestees rights included that the suggest unconstitutional Ward, at issue clearly ous offenses than those by policy were violated mi applied also Hennessey Francisco’s not en- Sheriff established.8 arrestees, such as those immunity. offense qualified nor titled to Up!/Portland also Act issue Ward. See IV 871-72 Cir. Bagley, v. decades, we have followed

1993) For clearly it was (noting by required precedent to Court that it was unconstitutional established rights policy, the violated two seminal majority overturns 8. That Thompson clearly search cases Giles established. were —is that, at the time of evidence further not, cavity strip suspect give searches of arrestees be based them or should no one by illusory suspicion, providing jus- on reasonable created either comfort that we are or reasonable ob- tice for all. individual circumstances jective Today, depart factors. from I respectfully dissent. approach sanctify that commonsense routine, indiscriminate, mandatory, suspi- body cavity anyone

cionless searches for

arrested and classified

population, regardless petty of how

offense. The record this case does not

support abrupt divergence from estab- Indeed,

lished law. conclusion America, UNITED STATES this record is that supports persons with Plaintiff-Appellant, history no criminal arrested for trivial of- pose fenses no risk smuggling credible v. jails. contraband into The reinstallation of EDWARDS, Duncan William has, constitutionally a more sound Defendant-Appellee. according government filings, worked right well and has struck “the balance America, United States of safety rights between and the of inmates.” Plaintiff-Appellant, longstanding precedent Our also struck right balance. It allowed Edwards, Duncan William charges, searches of those whose arrest Defendant-Appellee. history, status, criminal probation or suspi- cious behavior would create reasonable America, United States of justification for believing person ar- Plaintiff-Appellee, might rested concealing contraband in a body cavity. precluded jailors It from strip searching posed those who no credi- Edwards, Duncan William

ble secreting risk of contraband. Rather Defendant-Appellant. bringing than competing interests into 08-30055, 08-30056, Nos. 08-30059. equilibrium, today’s decision removes the balancing altogether scales the detri- —to United States Appeals, Court of ment of rights constitutional and human Ninth Circuit. dignity. Argued and Submitted Aug. 2009. Nor should we take solace the fact Filed Feb. 2010. every person subject to a humiliat- search, ing strip whether it be Sister Ber- Galvin, long

nie an honored time communi-

ty advocate for poor who was arrested rally,

at an anti-war pusher or a armed

with weapons caught in a crack house.

Our constitutional requires oath us to do

justice injustice respect —not —without

persons. Invading rights everyone,

regardless of whether we have reason to

Case Details

Case Name: Bull v. City and County of San Francisco

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Feb 9, 2010

Citation: 595 F.3d 964

Docket Number: 06-15566, 05-17080

Court Abbreviation: 9th Cir.