Lead Opinion
The San Francisco Sheriffs Department oversees six county jails in the San Francisco Bay Area, through which approximately 50,000 individuals are booked and processed each year. To address a serious problem of contraband smuggling in the jail system, Sheriff Michael Hennessey instituted a policy requiring the strip search of all arrestees who were to be introduced into San Francisco’s general jail population for custodial housing. In a class action lawsuit challenging this policy on its face, a district court held that it violated the Fourth Amendment rights of the persons searched, and denied Sheriff Hennessey qualified immunity. Hennessey, the San Francisco Sheriffs Department, and the City and County of San Francisco brought this interlocutory appeal, challenging the denial of qualified immunity.
I
“A detention facility is a unique place fraught with serious security dangers. Smuggling of money, drugs, weapons, and other contraband is all too common an occurrence.” Bell v.Wolfish,
Plaintiffs’ facial challenge to the Booking Searches policy is the only issue before us in this interlocutory appeal. This is an important point, because the dissent draws upon unproven allegations to give a shocking and inflammatory account of mistreatment by jail officials, including forcible strip searches conducted in an abusive and violent manner. The dissent’s sensationalist account of individual factual allegations is worse than irrelevant, as it invites us to decide this case on the basis of disputed factual issues not yet presented by the parties, not yet considered by the district court, and not yet weighed by a jury. San Francisco has vigorously denied the allegations the dissent recites. Nevertheless, if true, these allegations are quite serious, even absent the dissent’s embellishments.
But the plaintiffs are not making such claims. Plaintiffs emphasized throughout their briefing that they “brought this action to challenge the blanket policy and practice of searching prearraignment arrestees ...,” not the individual cases. Thus, plaintiffs relied “almost exclusively on defendants’ depositions and written policies as the basis of the material facts” in order to avoid disputed issues of fact that would defeat summary judgment.
For purposes of this narrow appeal, we are called upon to assess the constitutionality of the policy itself, not violations of that policy; thus, as did the district court, we must assume the challenged policy was followed scrupulously.
Although the dissent’s dramatic accounts stir the emotions, they are misleading and ultimately irrelevant to the case before us. Not a single one of the long parade of victims described by the dissent — Mary Bull, Charli Johnson, Bernie Galvin, Michael Marrón, Laura Timbrook, Salome Mangosing, Leigh Fleming, Michelle De Ranleau, or Deborah Flick— have claims at issue in this appeal.
A
During the period at issue, new arrestees entering the San Francisco County jail system were transported to County Jail No. 9, a temporary intake and release facility, where they were pat-searched, scanned with a metal detector, booked into the system, and fingerprinted. The arrestees were then placed in holding cells. Those eligible to post bail were given access to a telephone and afforded up to 12 hours to secure their release on bond. Individuals arrested because of intoxication were released when they became sober. Arrestees who were statutorily eligible were cited and released. See Cal.Penal Code § 853.6. None of these arrestees was strip searched under the challenged policy.
Because County Jail No. 9 is a temporary intake facility equipped with holding cells but no beds, those arrestees not eligible for release were transported to a jail with housing facilities. Arrestees were then transferred into the facility’s general jail population, which included pretrial detainees and convicted inmates. Pursuant to the Booking Searches policy, these individuals were strip searched prior to admission into the general population in order to prevent the smuggling of contraband into the facilities.
Under the policy, a strip search was to be performed “in a professional manner in an area of privacy” by an officer of the same sex as the arrestee. The arrestee was required “to remove or arrange some or all of his or her clothing so as to permit a visual inspection of the underclothing, breasts, buttocks or genitalia of such person.” The search included “a visual inspection of the mouth, ears, hair, hands, skin folds, [and] armpits as well as a thorough search of all clothing items.” San Francisco Sheriffs Dep’t Proc. No. E-03, E — 03(III).
Strip searches conducted under the Booking Searches policy uncovered significant amounts of contraband hidden in and on arrestees’ bodies. For example, as noted by the district court, San Francisco “produced evidence that from April 2000 through April 2005 strip searches at County Jail No. 9 resulted in the discovery of 73 cases of illegal drugs or drug paraphernalia hidden in body cavities.” Contraband discovered in arrestees’ body cavities included handcuff keys, syringes, crack pipes, heroin, crack-cocaine, rock cocaine, and marijuana. In the same time period, strip searches uncovered various concealed weapons, including a seven-inch folding knife, a double-bladed folding knife, a pair of 8-inch scissors, a jackknife, a double-edged dagger, a nail, and glass shards. Jail officials found contraband on arrestees charged with a range of offenses, including non-violent offenses such as public drunkenness, public nuisance, and violation of a court order. For example, a man arrested on a warrant for public nuisance was found smuggling a plastic bag of suspected cocaine powder. The parties dispute whether any discovery of contraband can be conclusively tied to class members, but, as discussed below, a resolution of this dispute is not material to our holding today.
B
In April 2003, Mary Bull and a class of similarly situated plaintiffs filed a class action complaint under 42 U.S.C. § 1983 in district court against the City and County of San Francisco, the Sheriffs Department, Sheriff Hennessey in his individual and official capacities, and certain unnamed Sheriffs deputies. Plaintiffs alleged that San Francisco’s strip search policy violated their Fourth Amendment right to be free from unreasonable searches and their Fourteenth Amendment rights to due process and privacy.
In an order issued June 10, 2004, the district court granted plaintiffs’ motion to certify a class under Federal Rule of Civil Procedure 23(b)(3) and defined the class as including all persons who “were arrested on any charge not involving weapons, controlled substances, or a charge of violence, and not involving a violation of parole or a violation of probation (where consent to search is a condition of such probation), and who were subjected to a blanket visual body cavity strip search by defendants before arraignment at a San Francisco County jail facility without any individualized reasonable suspicion that they were concealing contraband.”
In June 2005, plaintiffs moved for partial summary judgment on their claims that
On September 22, 2005, the district court issued an order disposing of the summary judgment motions, but subsequently granted San Francisco’s motion for reconsideration. On February 23, 2006, the district court issued an unpublished amended order, granting in part and denying in part each party’s motions. Bull v. City & County of San Francisco, No. C 03-01840,
The district court granted plaintiffs’ motion for partial summary judgment with respect to the policy of strip searching class members classified for housing, holding that the policy violated those individuals’ Fourth Amendment rights. Id. at *6. On this issue, the court determined that San Francisco’s blanket strip search policy ran afoul of our cases holding that such a search can be conducted only if there is individualized reasonable suspicion that a particular arrestee is concealing contraband, even if the arrestee will be introduced into the general population of a detention facility. Id.; see Thompson v. City of Los Angeles,
Accordingly, with regards to that policy, the district court denied Sheriff Hennessey’s motion for summary judgment on the ground of qualified immunity. Bull,
II
“We review de novo the district court’s decision regarding qualified immunity.” Motley v. Parks,
Under the circumstances of this case, we also have jurisdiction to review the district court’s grant of partial summary judgment to plaintiffs on the issue of Fourth Amendment liability, because the district court’s holding on liability is “inextricably intertwined with,” as well as “dependent on both the reasoning and results of,” its decision to deny qualified immunity to Sheriff Hennessey. Marks v. Clarke,
III
The reasonableness of a search is determined by reference to its context. Michenfelder v. Sumner,
A
In Bell, the Supreme Court upheld a policy of conducting visual body cavity searches of individuals housed at Metropolitan Correctional Center (MCC), a federally operated short-term custodial facility in New York, against Fourth and Fifth Amendment challenges. MCC housed convicted inmates, pretrial detainees, witnesses in protective custody, and persons incarcerated for contempt of court. Bell,
Before addressing the merits, the Court reviewed several general principles that informed its analysis, and which bear repeating. First, the Court reaffirmed that prisoners “do not forfeit all constitutional protections” by virtue of incarceration, and stated that pretrial detainees “retain at least those constitutional rights that [the Court] ha[s] held are enjoyed by convicted prisoners.” Id. at 545,
The Court specifically rejected the argument that deference to corrections facility officials is necessary only when the persons being housed have been convicted of a crime. Id. at 547 n. 29,
Turning to the merits, the Court assumed, without deciding, that detainees and inmates “retain some Fourth Amendment rights upon commitment to a corrections facility” and noted that “[t]he Fourth Amendment prohibits only unreasonable searches.” Id. at 558,
The Court acknowledged that the scope of the strip searches at MCC was invasive:
The Court rejected this reasoning, however, and held that the strip search policy at MCC was reasonable given the institutional needs and objectives, particularly the security concerns, of the corrections facility. The Court noted that “[cjorrections officials testified that visual cavity searches were necessary not only to discover but also to deter the smuggling of weapons, drugs, and other contraband into the institution.” Id. Recognizing that a “detention facility is a unique place fraught with serious security dangers,” and that “[sjmuggling of money, drugs, weapons, and other contraband is all too common an occurrence,” the Court upheld the policy even though there had been no long or pervasive history of smuggling at MCC, nor had corrections officials presented substantial evidence that persons who participated in contact visits were sources of contraband. Id. at 559,
Although Bell continues to provide definitive guidance for analyzing detention-facility strip searches under the Fourth Amendment, Turner v. Safley is also relevant to our analysis. When reviewing a detention facility’s restrictions of constitutional rights that are inconsistent with incarceration, Turner directs courts to consider whether the challenged restriction was “reasonably related to legitimate penological interests.”
B
Turning to the San Francisco strip search policy, we begin by applying Bell’s general principles. Bell held that a mandatory, routine strip search policy applied to prisoners “after every contact visit with a person from outside the institution,” without individualized suspicion, was facially constitutional. The dissent’s characterization of the case to the contrary is counter-factual. See Bell,
Applying the principles reviewed above, it is apparent that the scope, manner, and justification for San Francisco’s strip search policy was not meaningfully different from the scope, manner, and justification for the strip search policy in Bell.
In sum, because the circumstances before us are not meaningfully distinguishable from those presented in Bell, the balance between the need for the San Francisco strip search policy and “the invasion of personal rights that the search entails” must be resolved in favor of the jail system’s institutional concerns. Id. at 559,
Because the Turner factors require us to give more deference to detention officials’ determinations than does the balancing test in Bell, it is not surprising that our consideration of the Turner factors leads
With respect to Turner's concern for prison resources, San Francisco produced undisputed evidence that the elimination of the strip search policy would “lead to a higher incidence of illegal contraband in the jails,” and that implementation of more targeted policies “requires supervisory and line staff training” that “takes time away from other tasks and necessarily uses resources in scarce supply.” When the allocation of resources and the ability of administrators to protect staff and detainees at the facility are at issue, “courts should be particularly deferential to the informed discretion of corrections officials.” Turner,
C
Plaintiffs argue this conclusion is inconsistent with our earlier decisions in Thompson v. City of Los Angeles,
In Giles, a woman arrested for a minor traffic offense was strip searched in accordance with county policy before being booked at the county jail. We concluded that “arrestees charged with minor offenses may be subjected to a strip search only if jail officials possess a reasonable suspicion that the individual arrestee is carrying or concealing contraband.”
In Thompson, we upheld the constitutionality of the county’s strip search of a man arrested for grand theft auto because his offense was “sufficiently associated with violence to justify a visual strip
Thompson and Giles failed to comply with the Supreme Court’s direction that we not substitute our judgment for that of corrections facility officials. Bell,
Second, we erred in concluding that arrestees charged with minor offenses “pose no security threat to the facility.” Giles,
Third, Giles erred in deciding that a record of eleven instances of smuggling was insufficient to demonstrate a smuggling problem.
Finally, Giles erred in assuming that a strip search policy could not have a deterrent effect on persons who have been arrested and are being introduced into the general jail population for the first time,
Giles’s hypothesis that arrestees lack the opportunity to hide contraband on their person is also belied by the evidence in this case. The record establishes that San Francisco detected a substantial amount of contraband during strip searches of arrestees at the San Francisco jail, and also indicates that arrestees facing a strip search have jettisoned contraband in the holding cell. This evidence shows that arrestees do, in fact, have both the opportunity and inclination to conceal contraband in private bodily areas before being transported to County Jail No. 9, and that a strip search policy may have a deterrent effect. Because we see no meaningful difference between the institutional concerns raised by contact visits in Bell and those raised by introducing arrestees into the general jail population in this case, we must reject this purported distinction of Bell.
For the same reasons, we disagree with those other circuits that have held strip searches of arrestees entering the general jail population per se unreasonable unless the officials have individualized reasonable suspicion that the arrestees are smuggling contraband. See, e.g., Roberts v. Rhode Island,
We agree with the reasoning of the Eleventh Circuit that the rights of arres
We do not, however, disturb our prior opinions considering searches of arrestees who were not classified for housing in the general jail or prison population.
D
In rejecting our analysis, the dissent devises its own test for determining whether the strip search of an arrestee is constitutional. First, the dissent contends that “strip searches must be justified by individualized reasonable suspicion” or, at the very least, “categorical reasonableness based on empirical evidence that the policy
Ultimately, the dissent’s analysis and proposed test amount to a disagreement with Bell. Under Bell, as explained above, a strip search policy in these circumstances need not be based on individualized reasonable suspicion or empirical evidence that the policy is necessary. In fact, the MCC’s strip search policy would probably not pass muster under the dissent’s test. The MCC’s policy was not supported by empirical data: The MCC proved “only one instance ... where contraband was found during a body-cavity search.” Bell,
IV
In light of governing Supreme Court precedent, and given the circumstances presented here, we conclude that San Francisco’s policy requiring strip searches of all arrestees classified for custodial housing in the general population was facially reasonable under the Fourth Amendment, notwithstanding the lack of individualized reasonable suspicion as to the individuals searched. Because the policy did not violate plaintiffs’ Fourth Amendment rights, we reverse the district court’s denial of Sheriff Hennessey’s motion for summary judgment based on qualified immunity, and in doing so necessarily reverse the district court’s grant of plaintiffs’ motion for partial summary judgment as to Fourth Amendment liability.
REVERSED.
Notes
. We refer to Sheriff Hennessey, the Sheriff's Department, and the City and County of San Francisco by name when appropriate, and otherwise refer to defendants collectively as "San Francisco.”
. There is no doubt, as the Court stated in Bell, that "on occasion a security guard may conduct the search in an abusive fashion,” and “[s]uch an abuse cannot be condoned.”
. The claims of each of these individuals have been judicially resolved in some manner, and are not on appeal here. For example, the district court recognized that “substantial evidence in the record” supported a finding that
. The written policy instructions for conducting strip searches stated:
1. Strip searches include a visual body cavity search. A strip search does not include a physical body cavity search.
2. The search will be conducted in a professional manner in an area of privacy so that the search cannot be observed by persons not participating in the search.
3. The searching officer will instruct the arrestee to:
a. Remove his/her clothing.
b. Raise his/her arms above their head and rotate 360 degrees.
c. To bend forward and run his/her hands through his/her hair.
*969 d. To turn his/her head first to the left and then to the right so the searching officer can inspect the arrestee's ear orifices.
e. To open his/her mouth and run his/her finger over the upper and lower gum areas; then raise his/her tongue so the officer can inspect the interior of the arrestee's mouth. Remove dentures if applicable.
f. To turn around and raise first one foot, then the other so the officer can check the bottom of each foot.
4.The searching officer will visually inspect the arrestee’s breasts, buttocks, and genitalia.
5. The searching officer will thoroughly search the arrestee’s clothing, underclothing, shoes, and socks.
6. At the completion of the search, the searching officer will instruct the arrestee to dress.
. Plaintiffs also alleged violations of certain provisions of California law that are not at issue in this appeal.
. The class also included arrestees who “were subjected to blanket visual body cavity search(es) incident to placement in a 'safety cell’ at any of the San Francisco County jails.” The validity of the "safety-cell search”
. Specifically, on October 21, 2005, San Francisco moved for reconsideration of portions of the district court’s September 22, 2005 order that were unrelated to the court’s denial of qualified immunity for Sheriff Hennessey. San Francisco simultaneously appealed the denial of qualified immunity to this court, and the appeal was assigned Docket No. 05-17080. On February 23, 2006, the district court issued its amended order. San Francisco again appealed the denial of qualified immunity to this court. This second appeal was assigned Docket No. 06-15566. On April 26, 2006, this court issued an order consolidating appeal Nos. 05-17080 and 06-15566. Because the district court ruled that the February 23, 2006 order superseded its September 22, 2005 order, we dismiss appeal No. 05-17080 as moot.
. The court made several other rulings on the parties' cross motions for summary judgment that are not at issue here.
. The second Turner factor, “whether there are alternative means of exercising the right that remain open to prison inmates,”
. The dissent attempts to distinguish Thompson and Michenfelder on the ground that they involved "claims brought by prisoners already serving sentences,” and thus "involvefd] legitimate penological interests,” while such "penological interests” do not apply to pre-trial detainees. This distinction is unavailing. We have never distinguished between pretrial detainees and prisoners in applying the Turner test, but have identified the interests of correction facility officials responsible for pretrial detainees as being "penological” in nature. See, e.g., Simmons v. Sacramento County Superior Court,
. The dissent argues that we should not apply the Turner standard, because “Bell directly controls here.” While we agree that Bell is directly applicable to pretrial detainees, Bell is consistent with Turner, see Turner, 482 U.S. at 87-90,
. Bell did not analyze the place in which the strip searches occurred, but as explained below, the San Francisco policy's requirement that officers conduct strip searches in a private place supports a conclusion that the policy was reasonable.
. The dissent claims San Francisco instituted its policy merely because it would require more time to train its officers and because "it is administratively inconvenient to comply with the Constitution.” It cites Frontiero v. Richardson,
. The dissent repeats this error in asserting that "persons with no criminal history arrested for trivial offenses pose no credible risk of smuggling contraband into jails.” As in Giles, this appellate fact finding constitutes the "sort of unguided substitution of judicial judgment for that of the expert prison administrators” the Supreme Court has forbidden. Bell,
. Thus, the dissent’s argument that Bell requires a “factbound, data-driven inquiry into the categorical reasonableness of the search” mischaracterizes the Court’s holding. In overruling the district court and the Second Circuit, Bell rejected the empirical evidence requirement adopted by those courts, see Wolfish,
. Although the dissent argues that ”[a]s a matter of common sense, contact visits are far more likely to lead to smuggling than initial arrests,” it offers no support for this factual finding. But see Bell,
. Thus the dissent misrepresents the reach of the San Francisco policy and our holding in claiming that we are "sweeping] away twenty-five years of jurisprudence,” and "giving jailors the unfettered right” to search "any citizen who may be arrested for minor offenses.” The strip search policy at issue in this case, and our holding today, applies only to detainees classified to enter the general corrections facility population. The dissent fails to differentiate between cases considering the constitutionality of strip searches of arrestees who were classified for housing in the general population, and strip searches of arrestees in other contexts.
. The dissent attempts to support this test by pointing to Supreme Court decisions that are considerably far afield from the situation here. For example, it cites Safford Unified School District # 1 v. Redding, - U.S. -,
Concurrence Opinion
concurring:
The interesting and difficult question at the heart of this case is whether federal
There was a time in our constitutional history when one might have argued that the Fourth Amendment requires individualized suspicion for every search and an appropriate constitutional balance as to each individual. If that was ever the case, it’s not so now: The government is entitled to search classes of individuals based on a balance struck for the class as a whole, regardless of whether there’s reasonable suspicion — or any suspicion at all — as to any particular member. Bell v. Wolfish tells us that everyone in prison who participates in a contact visit may be strip searched.
The class to be searched is generally defined by the activity in question: In Bell, it was the class of all inmates who had contact visits; in other situations it’s all those who seek to board an aircraft, enter a building, drive a truck, perform certain law enforcement functions or engage in particular extra-curricular activities. In a very important sense, such classifications trade the protection afforded by individualized suspicion for protection derived from the fact that the government treats all similarly situated people in precisely the same way.
Which brings us to the hard question: Do individuals subject to class-wide search based on risks attributable to the class as a whole have a constitutional right to get themselves certified as a sub-class as to which a lesser search, or no search at all, is reasonable? For example, should some people be exempt from the inconvenience and delay of airport searches because they belong to a sub-class that has a materially lower likelihood of hijacking a plane — e.g. the class of federal judges nominated by the President and confirmed by the Senate? Or should certain individuals who enter public buildings be exempt from search because they belong to a learned profession and therefore present a lower risk? Compare Klarfeld v. United States,
The Supreme Court has held that individuals are sometimes entitled to an individualized Fourth Amendment calculus, and at other times they’re entitled to a class-wide calculus. See, e.g., Skinner,
First, there’s a degree of subjectivity that attends any classification, and that subjectivity can easily transform into elitism. It’s no coincidence, I believe, that the class of people selected for favorable treatment by the district court in this case are those who have been arrested for the kinds of crimes that any of us, or at least our friends and neighbors, might be arrested for: those who violate traffic laws, leash laws, or insurance requirements, or maybe the Martha Stewarts and Bernie Ebbers of the world. Plaintiff Michael Marrón was arrested for “credit card fraud at the Hotel Nikka [sic],” where any of us might stay when visiting San Francisco. Mary Bull’s story might seem less compelling if she had been arrested for vandalism ordinaire, e.g. throwing bricks at a store window, rather than vandalism chic, throwing fake blood at a political protest. Steve Noh was arrested for battery “while celebrating Gay-Pride Week in the Castro,” and Jonah Zern was arrested for resisting a police officer at a “peace” rally. We can imagine one of our close relatives, perhaps a child or grandchild, being put in jail under such circumstances. It’s much harder to empathize when a strip search is suffered by those less like us, such as those who are suspected of engaging in robberies or street fights.
But in a democracy there is a very important value, enshrined in the Equal Protection Clause, in treating everyone who stands on the same footing alike. See Vernonia, Sch. Dist.47J,
Second, lines drawn by courts rather than dictated by the functional requirements of an activity tend to be ambiguous, subject to manipulation and difficult to administer. Treating everyone who gets on a commercial plane the same is simple: If you want to get on a plane, you take off your shoes, leave behind any liquids over three ounces, remove your laptop from its carrying case and pass through the metal detector — no exceptions. If we were to
Our case makes the point: The district court carved out a class of people to exempt from the strip search policy consisting of all those arrested on a charge not involving (a) weapons, (b) controlled substances, or (c) violence, and (d) as to whom there was not individualized reasonable suspicion. Sounds easy to separate the sheep from the goats, but it’s not. Keep in mind that a member of the class must satisfy (negatively) all four of the criteria — in other words, failure as to any one will take someone out of the class and make him subject to the strip-search policy. Each criterion is porous and subjective; there can be endless quarrels (and lawsuits) as to whether someone did or did not fall into any of the categories.
Let’s start with the first one, weapons. If you’re arrested for carrying a Gatling gun or Carl Gustav you would surely fall into the category, but what about a butterfly knife? How about a baseball bat or golf club? Or how about Lisa Giampaoli, one of the named plaintiffs, who was arrested because her dog bit a young man who was allegedly harassing her. Was that a leash law violation or an attack with a deadly canine? See People v. Nealis,
Next, controlled substances. Anyone caught with Smack or Crack falls into the category, but what about Valium or Oxy-Contin? What about unauthorized possession of steroids? Non-prescription drugs that contain pseudoephedrine? See, e.g., United States v. Jae Gab Kim,
Now let’s take the third category of offenses for which strip searches are permitted under the district court’s order, namely people arrested for crimes of violence. We have a whole body of caselaw dealing with what constitutes a crime of violence for purposes of federal criminal and immigration law; among the activities we’ve considered are burglary, statutory rape, involuntary manslaughter, possession of an unregistered short-barreled shotgun, reckless vehicular assault, vehicular manslaughter while intoxicated, kidnapping, stalking, arson, escape, conspiracy to interfere with interstate commerce by robbery, grand theft, mayhem, recklessly setting fire to forest land, indecent liberties with a minor, carrying a gun while committing a drug offense and being an accessory after the fact to commission of murder for hire. And we often disagree. See, e.g., United
Finally, we get to the most troublesome category: cases where the deputies determine there’s individualized suspicion for a search. The district court found this includes anyone with a prior involving weapons, controlled substances or violence, thereby importing all the ambiguities discussed above. But even arrestees without relevant priors may be searched if their conduct raises suspicion that they’re smuggling contraband. So what exactly does that encompass? While struggling to prove that no member of the protected class has ever been found with contraband in their private spaces (a point the dissent takes up with some zest, Dissent at 2288, 2299, 2300-01, 2301-02, 2302, 2305), plaintiffs classify an arrestee who was “nodding off,” and another who was “nervous,” as inmates as to whom there was individualized suspicion. If “nodding off’ and “nervous” are sufficient for individualized suspicion, can “gave me a dirty look,” “was hyperactive” or “had poor posture” be far behind?
How, exactly, are deputies to know what does and does not amount to individualized suspicion, and who ultimately decides? Administering this category, like the others discussed above, will require a fair amount of trial and error, and a substantial degree of judicial involvement. No need to guess how much: A case pending before the same judge in the Northern District, Yourke v. City and County of San Francisco, No. 03-CV-03105-CRB, gives a foretaste. Yourke was arrested on a warrant for a traffic offense after police observed him engaged in what looked a lot like a drug deal. But Yourke claims it looked like an innocent chat between friends. Who’s to say who’s right? Not only will courts have to draw these difficult lines; jails will have to guess how courts will draw them. Being the subject of a court order and risking personal liability, deputies will probably err on the side of caution, to the detriment of prisoners faced with an increased risk of harm from smuggled contraband.
And when a search ends up in court, how will officers prove they had individualized suspicion? The record contains the report of a prisoner who told a guard, “wait to [sic] you see what I have up my ass.” Was this a joke that the deputies were required to ignore or did it give them grounds for a strip search? And what if the inmate denies making the statement? Or disputes that he was “nodding off’ or
Which brings me to my third objection to the judicial creation of sub-classes exempt from a search regime, namely that it will likely, perhaps inevitably, require far too much judicial involvement in the administration of the sub-class. It’s easy enough to say who is and is not going to enter the general population of a jail, just as it’s easy to say who is going to engage in a contact visit, board a commercial aircraft, enter a public building, drive a railroad or play high school football. The activity in question defines the class. But once courts start carving out constitutionally favored sub-classes because the members belong to some imaginary group with a lower risk-rating than the class as a whole, courts cannot avoid getting intimately involved in the conduct of the activity. This one case has generated a substantial record, countless lower court pleadings and no less than seven appellate opinions — so far. And Yourke, a case involving just a single strip search, has been ongoing over six years. If plaintiffs here succeed, every strip search will become a potential federal case. Federal judges will start running the jails, along with pretty much everything else.
The intervention won’t be limited to a single class action, either, as future litigants won’t be bound by the lines drawn in earlier cases. If these plaintiffs were to prevail, nothing would prevent a future plaintiff from trying to show that wife-beaters aren’t hardened criminals, generally act out of anger and frustration and not with premeditation and, though they might use a golf club or meat cleaver to threaten their mates, aren’t likely to be packing such implements up their wazoos when police come to arrest them. Could that claim be dismissed out of hand? Not according to plaintiffs (including Marcy Corneau, arrested for “fighting with her boyfriend”) and the dissent, who would put the onus on the jail to prove some past instance where a strip search of someone arrested for domestic violence yielded at least a dirk.
As this case illustrates, institutions aren’t equipped to deal with such challenges, which generally call for justifications for past conduct that no one knew would be required. Thus, plaintiffs and the dissent try to get mileage out of the fact that defendants have been unable to point to a single member of the class found carrying contraband. Dissent at 990-91, 997, 997-98, 998, 998-99, 1000. But at the time the searches were conducted, there was no class as defined by plaintiffs and the district court, so no one knew such justification would be required. The reports prepared by the jail to record the finding of contraband are accordingly ambiguous; very few conclusively show that the individual found with contraband was not a member of the class, and about half are entirely silent as to why the individual was searched. Plaintiffs want us to infer that no contraband was ever found among the class, but that’s hardly fair. The truth is that, on this record, we don’t know. Moreover, as Judge Tallman’s dissent from the panel opinion points out, plaintiffs’ central claim that members of the class never, ever conceal contraband is almost certainly wrong as a matter of fact. Bull v. City and County of San Francisco,
The reason past contraband reports don’t disclose the crime for which the individual was arrested is that it’s not germane to the purpose of the report, which is to account for a piece of property, possibly
The dissent shrugs this off as no big problem because, supposedly, the San Francisco jail system operates better than ever under a policy enacted in 2004 that, in effect, adopts the district court’s order for the duration of the lawsuit. Dissent at 997. But our dissenting colleague misreads the record. Both Sheriff Hennessey and Under-Sheriff Dempsey express grave doubts about the new policy; they make it quite clear that they are putting up with it in order to limit their liability, but that they believe it “increases the danger to staff and inmates” and “will lead to a higher incidence of illegal contraband in the jails.” The snippet of quotation excerpted in the dissent, to the effect that the new policy “strikes the right balance between safety and the rights of inmates,” id., comes from a portion of the Dempsey affidavit dealing with a different search policy that is not at issue in this appeal. The dissent is simply mistaken in suggesting that the interim intake policy works as well as the challenged policy.
I have a difficult time justifying this kind of judicial interference in what are quintessentially executive functions. In the absence of guidance from the Supreme Court — which is entirely absent — I don’t believe we have the authority to carve out sub-classes of individuals under the Fourth Amendment who must be given preferred treatment by the government. Indeed, the Court’s opinion in Bell v. Wolfish suggests otherwise. See
Thus, while I join Judge Ikuta’s excellent opinion in full, I concur on the separate ground that I do not believe we, as inferior federal judges, have the authority to grant plaintiffs the relief they seek.
Concurrence Opinion
specially concurring:
I concur specially in the result because, although I agree with Parts I and II of the dissent, I part company with its conclusion in Part III that the unconstitutionality of San Francisco’s strip-search policy was clearly established at the time of the events in question.
The most relevant Supreme Court case, Bell v. Wolfish,
Moreover, as the dissent acknowledges, some categories of pretrial detainees (such as those with a criminal record and those arrested for violent offenses and drug of
Finally, none of our prior cases was sufficiently similar to this one to signal unequivocally that the San Francisco policy was improper.
Although I agree fully with the dissent’s constitutional analysis and with the distinctions that the dissent draws between Bell and this situation, I cannot say that the unconstitutionality of this policy was clearly established before January 2004.
Accordingly, I concur in the result, but not the reasoning, of the majority opinion.
Dissenting Opinion
dissenting:
Mary Bull was arrested at a political protest for pouring red dye mixed with corn syrup on the ground. At the police station, according to her testimony, she was pushed to the floor and her clothes forcibly removed. Her face was smashed against the concrete cell floor while jailors performed a body cavity search. She was left naked in the cell for eleven hours, then subjected to a second body cavity search. After another twelve hours in the jail, she was released on her own recognizance. She was never charged with a crime.
Charli Johnson was arrested for operating a motor vehicle with a suspended license. She alleges she was forcibly strip searched by male officers in a hallway, and that she was kept in a cold room, naked for twelve hours with male officers regularly viewing her. No contraband was found. She was released the next day. No charges were ever filed.
Sister Bernie Galvin, a Catholic nun and a member of the Sisters of Divine Providence, was arrested at an anti-war demonstration for trespassing. She was strip searched at the jail. No contraband was found.
Michael Marrón was arrested for alleged credit card fraud at the Hotel Nikko, strip searched, and allegedly beaten and left naked in a cell for over ten hours. No contraband was found. All charges were eventually dismissed.
Laura Timbrook, who was arrested for bouncing small checks, was body cavity searched twice. No contraband was found. Deborah Flick alleges she was arrested for public intoxication, forcibly strip searched and left naked and bleeding in a cell overnight. Salome Mangosing, arrested for public drunkenness, was strip searched and forced to remain naked for twelve hours. Again, no contraband was found. Leigh Fleming was arrested for disturbing the peace. She was body cavity searched and confined naked in a cold room for five hours. No contraband was found, and she was never charged with a crime.
In holding that such searches were unconstitutional, the district court faithfully applied a quarter century of Ninth Circuit law, which was consistent with the law of all but one of our sister circuits. Under that nearly uniform interpretation of constitutional law, a body cavity strip search of a detainee is only justified by individualized reasonable suspicion that the search will bear fruit. If jailors have no reasonable suspicion, the search must be categorically reasonable based on empirical evidence that the policy is necessary. Jailors are entitled to strip search those whose arrest charges, criminal history, probation status, or suspicious behavior create a reasonable justification for believing the person arrested might be concealing contraband in a body cavity. That interpretation was consistent with the leading Supreme Court case on the topic, Bell v. Wolfish,
The majority sweeps away twenty-five years of jurisprudence, giving jailors the unfettered right to conduct mandatory, routine, suspicionless body cavity searches on any citizen who may be arrested for minor offenses, such as violating a leash law or a traffic code, and who pose no credible risk for smuggling contraband into the jail. Under its reconfigured regime, the majority discards Bell’s requirement to balance the need for a search against individual privacy and instead blesses a uniform policy of performing body cavity searches on everyone arrested and designated for the general jail population, regardless of the triviality of the charge or the likelihood that the arrestee is hiding contraband.
The rationale for this abrupt precedential departure is founded on quicksand. Indeed, the government’s entire argument is based on the logical fallacy cum hoc ergo propter hoc — happenstance implies causation. The government argues that contraband has been found in the San Francisco jails. Thus, the government reasons, individuals who are arrested must be smuggling contraband into the jail. Therefore, the government concludes it must body cavity search everyone who is arrested, even those who pose no risk of concealing contraband, much less of trying to smuggle contraband into the jail.
This reasoning finds no support from the record in this case. Although there is evidence of some arrestees attempting to conceal contraband during their arrest, there is not a single documented example of anyone doing so with the intent of smuggling contraband into the jail. More importantly, for our purposes, there is not a single example of anyone from the class defined by the district court who was found to possess contraband upon being strip searched. Not one.
Most of the individual plaintiffs were either never charged with any crime, or had the charges dismissed. There is no evidence in the record of a successful prosecution against any of the individual plaintiffs.
The district court carefully defined the class of plaintiffs, excluding all those whose objective characteristics bestowed sufficient reasonable suspicion to justify a body cavity search. Not only is there not a single example of any class member searched who possessed contraband, there is no statistical evidence in the record that the amount of contraband found in the jails decreased during the period when all arrestees were body cavity searched. And what has happened to the amount of contraband found inside cells since the jailors adopted a more constitutionally sound approach? The government cannot show there has been any increase at all.
Even though it has no record evidence to support its theory, the government nevertheless presses us to abandon all constitutional protections and to bless mandatory routine body cavity searches of those who, as a group, pose no reasonable risk of secreting contraband. All but one circuit has rejected this approach, with good reason. Suspicionless, routine, mandatory strip search policies flatly contradict the balancing of interests that the Supreme Court has instructed us to undertake. And, as the record in this case and others demonstrates, such policies result in abusive, unnecessary body cavity searches of those who pose no security risk. This record provides no evidentiary reason to justify the abandonment of our long-standing constitutional precedent, and every reason to uphold it. I respectfully dissent.
I
Until January 2004, San Francisco had a policy of strip searching all pre-arraignment arrestees entering County Jail No. 9 who fell into certain categories. Some arrestees were searched because of the crime they were charged with or their criminal histories; some were searched solely because they were classified for housing in the general jail population. The policy applied to all arrestees classified for housing in the general jail population, even those arrested for violating minor traffic laws — like failure to carry insurance or driving with a suspended license. The strip search procedure was invasive: it involved inspection of the naked body, including the arrestee’s breasts, buttocks, and genitalia, as well as a visual inspection of the arrestee’s body cavities. In 2003, Mary Bull and a class of similarly-situated plaintiffs brought suit against the City for violations of their Fourth and Fourteenth Amendment rights.
Judge Breyer, presiding over the district court, tailored the class of plaintiffs extremely narrowly. In an order issued June 10, 2004, the district court defined the class as:
All persons who, during the applicable period of limitations, and continuing to date, were arrested on any charge not involving weapons, controlled substances, or a felony charge of violence, and not involving a violation of parole or a violation of probation (where consent*992 to search is a condition of such probation), and who were subjected to a blanket visual body cavity strip search by defendants before arraignment at a San Francisco County Jail facility without any individualized reasonable suspicion that they were concealing contraband. This class also includes 1) all arrestees who were subjected to subsequent blanket strip search(es) before arraignment after the initial strip search, without any reasonable individualized suspicion that they had subsequently acquired and hidden contraband on their persons; and 2) all persons who, prior to arraignment, were subjected to blanket visual body cavity search(es) incident to placement in a “safety cell” at any of the San Francisco County Jails.
Bull v. City and County of San Francisco, No. 03-01840 (N.D.Cal. June 10, 2004) (order denying preliminary injunction). The class was further limited by the district court’s February 23, 2006 order, which held that San Francisco’s policy of strip searching arrestees on the basis of their criminal history was lawful. Bull v. City and County of San Francisco, No. 03-01840,
II
Supreme Court precedent and common sense compel the conclusion that San Francisco’s mandatory, routine, suspicion-less body cavity search policy violated the Constitution.
A
We begin with first principles. The Fourth Amendment requires that we evaluate “a search or seizure in light of traditional standards of reasonableness ‘by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.’ ” Virginia v. Moore,
Fourth Amendment inquiries are driven by the specific context in which searches arise. Our “reasonableness” analysis is bound by the facts of the individual case before us. Scott v.Harris,
Specific security concerns affect the constitutionality of a search. Friedman v. Boucher,
The strip searches in this case are the most serious of personal invasions. “The intrusiveness of a body-cavity search cannot be overstated. Strip searches involving the visual exploration of body cavities [are] dehumanizing and humiliating.” Kennedy v. Los Angeles Police Dep’t,
In Bell, the Supreme Court case that governs our inquiry, the Court considered the constitutionality of prison strip searches after contact visits. The policy in that case required all inmates in New York’s Bureau of Prisons facilities “to expose their body cavities for visual inspection as a part of a strip search conducted after every contact visit with a person from outside the institution.” Bell,
Although the policy gave the Court “pause,” id. at 558,
In its analysis, the Court reiterated the case-by-case nature of Fourth Amendment inquiries:
The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. In each case it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.
Bell,
We’ve revisited Giles on a number of occasions, each time reaffirming the individualized reasonable suspicion standard. In Ward v. County of San Diego,
In Thompson v. City of Los Angeles,
The next year, we held unconstitutional the City of Los Angeles’s mandatory, routine, strip search policy that subjected all felony arrestees to a visual body cavity search. Kennedy,
We reaffirmed our holding in Giles as recently as 2006. Way v. County of Ventura,
The district court clearly understood and applied this long standing precedent. As Judge Breyer put it:
The indignity of the strip search is great. And is not a minor or incidental humiliation. It’s a serious intrusion [on] a person’s personal right to privacy, in my view. And I don’t think there’s a large amount of argument over that point.
Therefore, there has to be a countervailing safety concern that would warrant that type of intrusion. That is what this is about. It is not any more complicated than that, I think.
The district court understood that, under Bell and our precedent, strip searches must be justified by individualized reasonable suspicion or categorical reasonableness based on empirical evidence that the policy is necessary. On a careful application of precedent as to those arrested for minor offenses, the district court concluded that San Francisco’s policy could not be justified by either reasonable suspicion or categorical reasonableness. The district court was entirely correct.
B
The majority suggests that Turner might apply as well to supplant the traditional Bell analysis. Turner considered the constitutionality of restrictions on inmate marriage and correspondence. In so doing, Turner set a new standard — one more deferential to prison administrators than the standard set by Bell — by which to judge prison regulations that impinge on inmates’ constitutional rights. See Turner,
Further, the underpinnings of Turner are significantly different from those considered in Bell. Turner involved incarceration of convicted criminals. Thus, the test developed in Turner involved the application of “legitimate penological interests.”
C
Because the Fourth Amendment reasonableness inquiry is factbound, we must consider whether the specific facts of this case justify San Francisco’s blanket strip search policy. Viewing the facts in the light most favorable to the plaintiffs — as we must on summary judgment for qualified immunity, Olsen v. Idaho State Bd. of Med.,
The City’s burden was not great: the district court had already done much of the City’s work by excluding most arrestees from the class. In essence, the district court found, as a matter of law, that the City satisfied Bell’s reasonableness requirement for all detainees arrested on weapons, violence, or controlled substance charges or for violation of parole or probation, or who have a criminal history. The small set of plaintiffs that the district court allowed to proceed were only those whose backgrounds did not give rise to the categorical suspicion necessary to justify a strip search. It was thus the City’s burden to prove that the narrow class of plaintiffs warranted strip searching.
San Francisco could not meet its burden. Of all the incidents of discovered contraband documented by Defendants and presented to the district court, not one documents a single uncontroverted instance of a class member possessing contraband when arrested and searched. In some instances where contraband was found, charging documents are missing and we are unable to determine whether the arrestee would have qualified as a member of the class. In other instances, the criminal history of the arrestee is missing, again making it impossible to determine whether the arrestee could be a class member. As an appellate court, “[i]n general, we consider only the record that was before the district court.” United States v. W.R. Grace,
Given this lack of evidence, one might wonder why the City is pressing its argument so strongly. After all, it has changed its policy to conform to the Constitution. It now requires individualized suspicion based on objective factors before body cavity searching an arrestee. According to the affidavits filed by the government, the new policy works well and “strikes the right balance between safety and the rights of inmates.” Nothing in the record suggests a sudden surge of contraband accompanying the policy change.
The real answer lies in the government’s affidavits. In the testimony submitted by the government, officials complain that it is administratively inconvenient to comply with the Constitution: that it requires additional training for its officers and that it could save time if it did not have to conduct individualized assessments. Indeed, the large record in this case shows beyond a doubt that administrative inconvenience is San Francisco’s sole justification for strip searching class members. But mere bureaucratic discomfort does not justify constitutional violations, and the Supreme Court has repeatedly told us so. See Frontiero v. Richardson,
Because there is absolutely no evidence that contraband was smuggled into the prison by eligible class members, San Francisco had no reason — categorical or otherwise' — to suspect that arrestees falling into the class of plaintiffs certified in this case were smuggling contraband. Thus, San Francisco’s strip search policy was unreasonable and violates the Fourth Amendment.
This conclusion is consistent with the Court’s decision in Bell. In Bell, the strip search policy was constitutional because the Supreme Court had before it both a record of smuggling and a categorically reasonable justification for the policy. First, the Court had before it a record showing that inmates often attempted to smuggle contraband into prisons after contact visits. Although “petitioners proved only one instance in the [prison facility’s] short history where contraband was found during a body-cavity search,” Bell,
Second, contact visits are planned. As a matter of common sense, contact visits are far more likely to lead to smuggling than initial arrests. Indeed, contrary to the evidence in this case, the record in other cases has shown that “despite thorough searches, contact visits result in the smuggling of contraband, particularly drugs.” Toussaint v. McCarthy,
Absent individualized reasonable suspicion or any evidence at all that the class of plaintiffs here presented a risk of smuggling, the City is left to speculate that detainees are attempting to smuggle contraband into detention centers by concealing contraband during arrest. Indeed, the City has suggested that some detainees
We are asked to ignore this stark record on the theory that we ought always defer to jailors on matters of security, whether or not the government can make a plausible showing that a security risk exists at all. Of course, deference to prison administrators is instrumental in maintaining prison security. See Bell,
D
The realities of the constitutional issues here at stake are far from trivial. The Seventh Circuit has described strip searches as “demeaning,” “dehumanizing,” and “repulsive.” Mary Beth G.,
Many reports document the unfortunate connection between strip searches and sexual abuse of prisoners. See Cheryl Bell et al., Rape and Sexual Misconduct in the Prison System: Analyzing America’s Most “Open” Secret, 18 Yale L. & Pol’y Rev. 195, 203 (1999) (“Female inmates have also reported that guards improperly touch them while performing body searches.”).
One need only look to the record before us to find troubling instances of abuse during the strip search process. The named plaintiff, Mary Bull, was arrested for vandalism during a political protest. She claims that after she declined to consent to a body cavity search, she was told that unless she consented, she would be forcibly strip searched. She alleges that an officer told her that if she did not consent, she would be “thrown into a cold room, naked, for 24 hours.” She declined to consent, and describes what happened next:
I was then forcibly strip searched in an area visible to persons not participating, my clothes were pulled off, my legs were thrown into a squatting position while I was lying on the floor in front of male*1000 officers. My genital and rectal areas were inspected.
During the search, Bull’s “face was smashed against the concrete” by the prison officials. She was then left naked in a cold room for twelve hours. In the morning, she was removed from the cell and again informed that she was required to consent to a strip search. She declined. She was forcibly strip searched again, and again left naked in a cold room for another twelve hours. She was then released on her own recognizance. She has never been charged with any offense.
Salome Mangosing, arrested for public drunkenness, alleges that she was kicked repeatedly during her search while she lay prostrate on the ground. According to Mangosing, one prison official placed her foot on Mangosing’s neck while another twisted her arm behind her back. Mangosing was forced to remain naked for twelve hours.
Michael Marrón, who was arrested for alleged credit card fraud at a local hotel, was strip searched, and allegedly beaten and left naked in a cell for over ten hours. Michele De Ranleau who was arrested for illegal lodging, allegedly was strip searched twice, and left in a cell naked for twelve hours. All charges were dropped.
Laura Timbrook was arrested for writing checks on an account with insufficient funds and body cavity searched twice. Deborah Flick alleges she was arrested for public intoxication, forcibly strip searched and left naked and bleeding in a cell overnight. The record contains other similar examples. Many of the persons who testified to this treatment were never charged with any crime and never actually housed in the general jail population.
That abuse often accompanies mandatory body cavity searches should not surprise us. Body cavity searches dehumanize those who are subject to them, and those performing routine searches in volume become desensitized to the invasion of body privacy. Enforcing the minimal constitutional right of individualized consideration of risk forces officers to view those arrested as individual humans, rather than as booking-numbered objects to be processed.
E
Concluding that the policy at issue violates the arrestees’ Fourth Amendment rights falls squarely in line with the law of the vast majority of our sister circuits. In justifying the strip search policy, the majority overrules two bedrock Fourth Amendment cases: Giles v. Ackerman and Thompson v. City of Los Angeles. These cases are not just widely-cited by our circuit, they are accepted throughout the circuits. The majority exiles us from the legal mainstream.
The circuits are near-unanimous in rejecting the majority’s contention that Bell eliminated the reasonable suspicion requirement for conducting a strip search. The Second Circuit, for example, in holding a policy of strip searching all arrestees unconstitutional, determined that Bell “did not ... read out of the Constitution the provision of general application that a search be justified as reasonable under the circumstances. The imposition of a standard short of probable cause in determining the balance of interests at stake in [Bell] in no way dispensed with that requirement.” Weber v. Dell,
The First Circuit has also found that Bell did not eliminate the reasonable suspicion requirement. Swain v. Spinney,
Other circuits have similarly found policies like the one before us unconstitutional. See Masters v. Crouch,
The majority cites with approval the recent Eleventh Circuit case Powell v. Barrett,
The above-described opinions from the First, Second, Fourth, Fifth, Sixth, Eighth, and Tenth Circuits — and the fact that for twenty-eight years the Supreme Court has repeatedly declined to comment-clearly show that the majority’s interpretation of Bell falls far outside the existing jurisprudence.
The conclusion is clear: the City’s policy of routine, mandatory, suspicionless body cavity searches of those arrested for minor offenses who pose no credible risk of concealing contraband is unconstitutional.
III
In a qualified immunity analysis, we must also consider whether the constitutional right violated by Defendants was clearly established at the time of the search. See Pearson v. Callahan, — U.S. -,
The City’s challenged strip search policy was in place until January 2004. It was clearly established by that time that conducting strip searches of pre-arraignment arrestees based solely on the fact that they were assigned for transfer to the general jail population was unconstitutional. We have consistently required consideration of individual factors, such as arrest charges, criminal history, and suspicious behavior, to justify strip searches of pre-arraignment arrestees. As the district court in this case rightly observed: “It was ... abundantly clear after Thompson that placement in the general jail population cannot [sic] ‘by itself cannot justify a strip search.’ ” Bull v. City & County of San Francisco, No. 03-01840,
Moreover, we have explicitly held several times that it was clearly established that strip search policies similar to San Francisco’s are unconstitutional. In Ward, we concluded that “the law was sufficiently clear in early 1981 so as to expose a public official who unreasonably authorized blanket strip searches of minor offense arrestees to civil liability under 42 U.S.C. § 1983.” Ward,
Defendants argue that the large amount of documentary evidence they have produced distinguishes this case from other strip search cases. Because no other case confronted such a well-documented problem, Defendants contend, the law was not clearly established. However, the specific facts of previous cases need not be materially or fundamentally similar to the situation in question; rather, the salient question is whether the state of the law at the time gives officials fair warning that their conduct is unconstitutional. See Hope v. Pelzer,
The fact that San Francisco documented a contraband smuggling problem does not muddy the clarity of the law. The evidence Defendants produced to the district court shows only that contraband was a significant problem in San Francisco jails generally; it does not demonstrate that persons eligible for inclusion in this class of plaintiffs contributed significantly, or even at all, to that problem. Therefore, San Francisco’s policy is not different enough from policies that we have held unconstitutional to suggest that the rights violated by the policy were not clearly established.
IV
For decades, we have followed Supreme Court precedent and required that body
Our longstanding precedent also struck the right balance. It allowed strip searches of those whose arrest charges, criminal history, probation status, or suspicious behavior would create a reasonable justification for believing the person arrested might be concealing contraband in a body cavity. It precluded jailors from strip searching those who posed no credible risk of secreting contraband. Rather than bringing competing interests into equilibrium, today’s decision removes the balancing scales altogether — to the detriment of constitutional rights and human dignity.
Nor should we take solace in the fact that every person is subject to a humiliating strip search, whether it be Sister Bernie Galvin, an honored long time community advocate for the poor who was arrested at an anti-war rally, or a pusher armed with weapons and caught in a crack house. Our constitutional oath requires us to do justice — not injustice — without respect to persons. Invading the rights of everyone, regardless of whether we have reason to suspect them or not, should give no one illusory comfort that we are providing justice for all.
I respectfully dissent.
. These allegations, of course, remain to be proven at trial. That being said, many of the accounts of the searches are undisputed in the record, and there is no dispute about whether charges were filed or contraband discovered. The majority, while relying entirely on non-class data as the basis of its argument, suggests that the plaintiffs are precluded from citing probative evidence from non-class members. However, in analyzing a grant of summary judgment on the basis of qualified immunity, we construe the entire factual record in the light most favorable to the non-moving party in order to determine whether there has been a constitutional violation. Brosseau v. Haugen,
. The Supreme Court, in a slightly different context, recently reaffirmed the idea that a strip search policy violates the Fourth Amendment when there is little evidence that the searches will result in the discovery of contraband. In Safford Unified Sch. Dist. # 1 v. Redding, - U.S. -,
. The categorical approach of strip searching everyone that the majority proposes is novel in practice. No other circuit has employed such an approach. The only circuit to mention a similar categorical approach is the Fifth, which explicitly rejected it as a broad brush technique for avoiding the reasonable suspicion requirement. See Stewart v. Lubbock County,
. The majority cites Ninth Circuit cases for the proposition that the Turner standard already has been incorporated into Bell cases: Thompson v. Souza,
. See also Amnesty International, "Not part of my sentence”: Violations of the Human Rights of Women in Custody, http://www. amnestyusa.org/document.php?id=D0F5C 2222D1AABEA8025690000692FC4 & lang=e (last visited October 1, 2009) (detailing instances of sexual abuse occurring during strip searches).
. The majority characterizes the lead plaintiff Bull’s complaint solely as a challenge to the jail's safety cell policy. The objection of the majority to a reference to a plaintiff who also challenges the safety cell policy is somewhat puzzling, given that the majority’s entire argument rests on the contraband found during strip searches of out-of-class members. Never-the-less, Bull’s actual allegations are much broader than a challenge to the safety cell policy. She was placed in a safety cell for a portion of her incarceration, and the district court denied her summary judgment because of genuine issues of material fact concerning the particular circumstances of her search. However, the reason Bull was placed in a safety cell was because she refused to consent to be strip searched. At that time, all arrestees were asked to sign a form consenting to a strip search. However, if the detained person declined to sign it, he or she was strip searched anyway. According to an officer involved in Bull's detention, refusal to sign a consent form constituted "bizarre” behavior fitting the criterion of placement in a safety cell because "it impeded the intake process.” In her affidavit, Bull claims that an officer told her that if she did not submit to a body cavity search she "would be thrown into a cold room, naked, for 24 hours.” Bull did not consent and was forcibly strip-searched in the safety cell. She testified that she was left in the cell, naked, overnight. In the morning, she was removed from her cell and informed that she had to consent to a second body cavity search. She objected, and was forcibly bodycavity searched a second time. She testified that she was again left naked in a cell, but later assigned to a room with eight bunk beds, where she stayed until her release.
. See generally Philip Zimbardo, The Lucifer Effect: Understanding How Good People Turn Evil (2007) (describing the effect of the Stanford prison experiments on guard and inmate interaction).
. That the majority overturns two seminal strip search cases Giles and Thompson — is further evidence that, at the time of the strip search policy, the rights violated by the policy were clearly established.