Charles Edward BYRD, Plaintiff-Appellant, v. MARICOPA COUNTY SHERIFF‘S DEPARTMENT; Joseph M. Arpaio; Kathleen O‘Connell; Austin Peterson; Durango Jail, Defendants-Appellees.
No. 07-16640.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Dec. 15, 2009. Filed Jan. 5, 2011.
629 F.3d 1135
Eileen D. GilBride, Jones, Skelton & Hochuli, P.L.C., Phoenix, AZ, for the defendants-appellees.
Before: ALEX KOZINSKI, Chief Judge, MARY M. SCHROEDER, SIDNEY R. THOMAS, SUSAN P. GRABER, RAYMOND C. FISHER, RONALD M. GOULD, RICHARD A. PAEZ, RICHARD C. TALLMAN, JOHNNIE B. RAWLINSON, CARLOS T. BEA and N. RANDY SMITH, Circuit Judges.
Opinion by Judge RAWLINSON; Partial Concurrence and Partial Dissent by Judge N.R. Smith.
OPINION
RAWLINSON, Circuit Judge:
Charles E. Byrd (Byrd), a pretrial detainee at the time, was subjected to a cross-gender strip search of his genital area. Because the strip search was unreasonable under the facts of this case, we reverse the district court‘s entry of judgment in favor of Defendants-Appellees Maricopa County Sheriff‘s Department and then-cadet Kathleen O‘Connell (O‘Connell).
I. BACKGROUND
While Byrd was a pretrial detainee in a minimum-security facility, Maricopa County jail officials ordered a search of Byrd‘s entire housing unit (approximately ninety inmates). It is undisputed that no emergency existed. Rather, the search was precipitated by the occurrence of several fights and a suspicion of contraband in the jail.
Maricopa County Special Response Team officers carrying pepper ball guns and tasers entered the facility. They ordered Byrd to remove all clothing except his boxer shorts, which were pink and made of a very thin material. Once the inmates in the housing unit formed a line, jail officials ordered four to six inmates at a time into the “day room,” a common area, to be searched. Cadets from the detention officer training academy searched the inmates with training supervisors present. The cadets wore jeans and white t-shirts with their last names printed on the back. They were not otherwise identified.1 Approximately twenty-five to thirty cadets and ten to fifteen uniformed detention officers were present in the day room. However, none of the detention officers participated in the searches. At
Byrd was searched by a female cadet. He testified that, during the searches, male detention officers stood by watching. The record clearly reflects that only four inmates were searched at a time, by no means an overwhelming number.2 Although no factual finding was made on this point by either the judge or the jury, contrary to the dissent, it was by no means “undisputed ... that the County did not have sufficient numbers of male detention officers to conduct searches of male inmates without the assistance of female officers.” Dissenting Opinion, p. 1151.
When Byrd entered the day room, the cadets were lined up and waiting. O‘Connell ordered him to turn away from her, spread his feet and raise his arms above his head. Wearing latex rubber gloves, she pulled out Byrd‘s waistband a few inches and felt the waistband to make sure nothing was hidden in it. O‘Connell did not look inside Byrd‘s boxer shorts.
Next, O‘Connell placed one hand on Byrd‘s lower back holding the back part of the boxer shorts and, with her other hand, searched over his boxer shorts, his outer thigh from his hip to the bottom of the shorts. She then moved her hand from his outer thigh to the bottom of the shorts on his inner thigh and applied slight pressure to feel his inner thigh for contraband. Using the back of her hand, O‘Connell moved Byrd‘s penis and scrotum out of the way applying slight pressure to search the area. O‘Connell then searched the other side using the same technique.
Finally, O‘Connell placed her hand at the bottom of Byrd‘s buttocks and ran her hand up to separate the cheeks while applying slight pressure, to search for contraband inside his anus. O‘Connell estimated that the search lasted ten to twenty seconds, and Byrd estimated that the search took sixty seconds. After the search was completed, Byrd was directed to go to the opposite end of the day room, and sit facing the wall.
On the day of the search, Byrd filed an inmate grievance complaining that O‘Connell “grab[bed] [his] balls and [his] scrotum.” Byrd filed three additional inmate grievances to no avail. Byrd subsequently filed a pro se complaint naming Maricopa County Sheriff Joseph Arpaio (Arpaio), O‘Connell, and Captain Austin Peterson (Peterson) as defendants. The complaint alleged that the search violated Byrd‘s right under the
The district court dismissed Byrd‘s equal protection claim but denied Maricopa County‘s motion for summary judgment
Following the presentation of evidence, the district court granted judgment as a matter of law in favor of Peterson, O‘Connell‘s supervisor, on the premise that Peterson was not connected to the search. Byrd does not challenge this ruling on appeal.
Additionally, the district court granted judgment as a matter of law in favor of Arpaio, finding that Byrd presented no evidence that Arpaio had instituted an unconstitutional policy or had personally participated in the search. The court also ruled as a matter of law that the search was constitutionally valid. Thus, with O‘Connell as the only defendant, the district court narrowed the issues to be presented to the jury to these three:4 (1) whether “O‘Connell deprived [Byrd] of his right against unreasonable search by intentionally squeezing or kneading his penis or scrotum or improperly touching his anus through his underwear;” (2) whether “O‘Connell deprived [Byrd] of due process of law” by “intentionally squeez[ing] or knead[ing] [Byrd‘s] penis or scrotum or improperly touch[ing] his anus through his underwear,” with “[O‘Connell‘s] actions inflict[ing] [wanton] pain on [Byrd];” and (3) whether “O‘Connell deprived [Byrd] of his right against unreasonable search by conducting a search not done for [an] identified security need.”5
The district court‘s formulation of these three issues for the jury‘s consideration completely eliminated the jury‘s contemplation of whether the cross-gender strip search violated Byrd‘s right under the
In Byrd v. Maricopa County Sheriff‘s Dep‘t, 565 F.3d 1205 (9th Cir.2009), a divided panel of this court affirmed the district court‘s judgment. We subsequently granted rehearing en banc, 583 F.3d 673 (9th Cir.2009).
II. STANDARD OF REVIEW
We review an order granting or denying judgment as a matter of law de novo. See Mangum v. Action Collection Serv., Inc., 575 F.3d 935, 938 (9th Cir.2009). “Judgment as a matter of law is appropriate when the evidence presented at trial permits only one reasonable conclusion. That is, a motion for judgment as a matter of law is properly granted only if no reasonable juror could find in the non-moving party‘s favor.” Id. at 938–39 (citations, alteration, and internal quotation marks omitted).
A. Substantive Due Process and Equal Protection Claims
Byrd did not strenuously press his substantive due process and equal protection claims during the en banc argument. In fact, Byrd‘s counsel candidly acknowledged that there was “a basis” for the panel‘s affirmance of the district court‘s decision to dismiss Byrd‘s equal protection claim for failure to state a claim. We review this basis for dismissal de novo, and may affirm the dismissal for any reason supported by the record. See Thompson v. Paul, 547 F.3d 1055, 1058–59 (9th Cir.2008).
A peripheral equal protection issue was in the air because of the text of Maricopa County‘s Contraband Control Policy (Contraband Policy) distinguishing between male and female inmates when a frisk search is involved. According to the Contraband Policy, “[m]ale inmates may be frisk searched by either male or female officers[,]” but “[f]emale inmates will only be searched by female officers, absent exigent circumstances.” However, there are two considerations that counsel against delving too deeply into the equal protection issue. The first is Byrd‘s concession of “a basis” for the ultimate dismissal of his equal protection claim. The second is the lack of a factual record to properly analyze the equal protection claim.
It is important to note that Byrd did not challenge the Contraband Policy on which Maricopa County relied in its opposition to Byrd‘s claims. Rather, Byrd‘s equal protection claim was couched generally in terms of the treatment of male inmates, without reference to the policy. In any event, the Contraband Policy does not establish the reasonableness of the search. The Contraband Policy expressly provides that “[s]trip searches will be conducted by an officer of the same sex as the inmate....” Under the Contraband Policy a strip search is defined as a “visual scan of the inmate‘s skin after all clothing has been removed.” Maricopa County seizes on this definition to argue that the search performed on Byrd was not a strip search because Byrd was wearing very thin boxer shorts. Rather, Maricopa County maintains that Byrd was subjected to a frisk search.
The Contraband Policy defines a frisk search as “[c]arefully examining an inmate by inspecting his clothing, and feeling the contours of his clothed body ...” (emphasis added). The Contraband Policy provides that “[t]he inmate‘s shoes and socks may be removed ...” However, no mention is made of the removal of other clothing as part of a frisk search. In sum, the search was not properly conducted as a strip search under the Contraband Policy because it was not conducted by staff of the same gender, and it was not limited to a visual inspection of Byrd‘s body. The search was not properly conducted as a frisk search under the Contraband Policy because Byrd was not clothed as contemplated in the policy. The particular search conducted in this case simply does not fall within the contours of the Contraband Policy. Therefore, no basis exists for concluding that the provisions of the Contraband Policy defeat Byrd‘s equal protection claim.
The district court dismissed Byrd‘s equal protection claim as one premised on the disparate treatment of prisoners and found, without acknowledging the gender element, that prisoners are not a suspect class. However, given the existence of a facially discriminatory contraband policy, an equal protection claim based on the disparate treatment of male and female prisoners was viable. See Wyatt v. Terhune, 315 F.3d 1108, 1111-12 (9th Cir. 2003) (acknowledging a male inmate‘s equal protection claim based on prison grooming regulations that did not apply to female inmates); Jeldness v. Pearce, 30
Although the Contraband Policy was part of the record before the district court, Byrd‘s complaint made no reference to it and his equal protection allegation largely repeated the facts that formed the basis of his other claims. Even construing Byrd‘s pro se complaint liberally, the allegations failed to state an equal protection claim because they asserted only allegedly harmful treatment and mentioned nothing about disparate treatment, much less about the specific jail policy or gender classification in general. See Weilburg v. Shapiro, 488 F.3d 1202, 1205 (9th Cir.2007) (“Pro se complaints are to be construed liberally...“); see also Pena v. Gardner, 976 F.2d 469, 471 (9th Cir.1992) as amended (noting that “a liberal interpretation of a pro se civil rights complaint may not supply essential elements of the claim that were not initially pled ...“). For that reason, we do not take issue with the ultimate ruling dismissing Byrd‘s equal protection claim.
As for the substantive due process claim, Byrd failed to allege or produce evidence that O‘Connell or Arpaio expressed an intent to punish Byrd or that the search was unrelated to a “legitimate governmental objective.” Bell, 441 U.S. at 538-39, 99 S.Ct. 1861 (explaining that the critical inquiry is “whether particular restrictions and conditions accompanying pretrial detention amount to punishment in the constitutional sense of that word” and that, “if a particular condition or restriction of pretrial detention is reasonably related to a legitimate governmental objective, it does not, without more, amount to punishment“) (footnote reference and internal quotation marks omitted).
In the alternative, punitive intent may be inferred. See id. (“[I]f a restriction or condition is not reasonably related to a legitimate goal—if it is arbitrary or purposeless—a court permissibly may infer that the purpose of the governmental action is punishment that may not be constitutionally inflicted upon detainees qua detainees.” (citation and footnote omitted)). It is undisputed that the search in this case was prompted by several recent fights and suspicion of contraband. Because a search premised on such security concerns is reasonably related to legitimate goals of detention officials, see, e.g., Michenfelder v. Sumner, 860 F.2d 328, 333 (9th Cir.1988), no basis exists to draw an inference of intent to punish Byrd. In the absence of evidence of an intent to punish, or evidence that Maricopa‘s actions were unrelated to a “legitimate governmental objective,” the district court properly granted judgment as a matter of law in favor of O‘Connell and Arpaio on Byrd‘s
B. Unreasonable Search and Seizure
The district court granted judgment as a matter of law in favor of O‘Connell on the issue of whether the cross-gender strip search violated Byrd‘s right under the
We approach this issue by reiterating our longstanding recognition that “[t]he desire to shield one‘s unclothed figure from [the] view of strangers, and particularly strangers of the opposite sex, is impelled by elementary self-respect and personal dignity.” York v. Story, 324 F.2d 450, 455 (9th Cir.1963); see also Michenfelder, 860 F.2d at 333 (same); Grummett v. Rushen, 779 F.2d 491, 496 (9th Cir.1985) (distinguishing cross-gender searches that “are done briefly and while the inmates are fully clothed, and thus do not involve intimate contact with the inmates’ bodies“) (emphasis added). It is not surprising that a connection has been made between cross-gender searches and the level of sexual impropriety between inmates and corrections personnel. See, e.g., Nicholas D. Kristof, Op-Ed., Kids in Crisis (Behind Bars), N.Y. TIMES, Jan. 28, 2010, at A33 (discussing a “stunning new Justice Department special report” finding that cross-gender assignments in prisons foster abuse of inmates by male and female officers); Connie Rice and Pat Nolan, Op-Ed, Policing Prisons, L.A. TIMES, Apr. 5, 2010, at A13 (citing to the June, 2009, National Prison Rape Elimination Commission Report (Commission Report)).
In the preface to the Commission Report, The Honorable Reggie B. Walton, Chair of the Commission, noted that the Commission was “challenged to examine problems that we wish did not exist and confronted with accounts of sexual abuse that shocked and saddened us ...” Commission Report at vi. The Commission explicitly recognized that “searches carried out by staff of the opposite gender heighten the potential for abuse.... In the Commission‘s view, the risks are present whether the officers are male or female.” Id. at 62 (footnote reference omitted).7
Although the Commission acknowledged that cross-gender supervision “can have
The Commission‘s findings are consistent with the standards adopted by the American Correctional Association, the accrediting body for adult correctional facilities. See Standards For Adult Correctional Institutions (2003).
Section 4-4194 addresses cross-gender strip searches, articulating the standard as follows:
Written policy, procedure and practice provide that, except in emergency situations, visual inspections of inmate body cavities are conducted by officers of the same sex, in private ...
Id. at 53.
Applying the Bell factors in the context of our precedent recognizing the privacy interest of inmates in their personal dignity, giving credence to the compelling findings made by the Commission, and acknowledging the applicable accrediting standards, we conclude that the cross-gender strip search of Byrd was unreasonable as a matter of law. O‘Connell touched Byrd‘s inner and outer thighs, buttocks, and genital area with her latex-gloved hand through very thin boxer shorts. She moved his penis and scrotum in the process of conducting the search. The scope of this intrusion totally thwarted any desire on Byrd‘s part to “shield[his] unclothed figure from [the] view of strangers ... of the opposite sex ...” York, 324 F.2d at 455. The scope of the intrusion in this case far exceeds searches we have previously sanctioned and weighs in favor of a finding of unreasonableness.
In Grummett, 779 F.2d at 493, 495, we upheld a system of assigning female officers within a correctional facility such that they occasionally viewed male inmates in various states of undress and regularly conducted routine pat-down searches of inmates that did not involve intimate contact with the inmate‘s body. We expressly noted that “female officers [were] not assigned positions in which they conduct or observe strip or body cavity searches.” Id. at 495 (emphases added). Although the dissent characterizes the search of Byrd as a pat-down search, see Dissenting Opinion, p. 1152, we offered a different description of a pat-down search in Grummett. There, we defined pat-down searches as searches “done briefly and while the inmates are fully clothed, and thus do not involve intimate contact with the inmates’ bodies.” Grummett, 779 F.2d at 496. In contrast, Byrd was barely clothed at all, and it is undisputed that the female officer twice touched Byrd‘s penis and scrotum, and searched inside his anus.
In Michenfelder, 860 F.2d at 334, we reiterated that “infrequent and casual observation, or observation at [a] distance, ... are not so degrading as to warrant court interference” (citing Grummett, 779 F.2d at 494-95) (parallel citations omitted). Our holding in Michenfelder offers no support for a cross-gender strip search. If the panel in Michenfelder intended to approve cross-gender strip searches, it would have distinguished Grummett, rather than citing the case in support of the panel‘s ruling.
None of the other cases cited by our colleagues, see Dissenting Opinion, pp. 1150–51, purports to approve cross-gender strip searches in the absence of an emergency. Indeed, neither Bell, 441 U.S. at 559–60, 99 S.Ct. 1861; Rickman v. Avaniti, 854 F.2d 327, 328 (9th Cir.1988); nor Thompson v. Souza, 111 F.3d 694, 700 (9th Cir.1997), involved cross-gender strip searches, the issue we address in this case.
The justification for conducting the search weighs in favor of a determination of reasonableness. It is undisputed that the search was initiated due to several recent fights and suspicion of contraband. These circumstances constituted valid reasons to search the inmates, even though no immediate emergency existed. See Thompson, 111 F.3d at 700 (noting that the purpose of the search was to “detect illicit drugs“); see also Michenfelder, 860 F.2d at 332–33 (recognizing that a search for contraband constitutes adequate justification). Nevertheless, although valid reasons to search the inmates existed generally, there was no justification given for conducting a cross-gender strip search. The dissent glosses over this distinction when emphasizing the jury‘s finding that there were valid reasons to search the inmates. See Dissenting Opinion, pp. 1149–50. The jury had been specifically instructed not to consider the cross-gender element of the search, and therefore the jury‘s finding that a search was justified does not amount to a finding that a search by a woman was justified.
The final Bell factor, the place of the search, similarly weighs in favor of a finding of reasonableness. Byrd was searched in the day room, a common area. Other inmates were present, making it less likely that improper conduct would occur. See Thompson, 111 F.3d at 701 (upholding visual strip search of inmate that took place on the tier just outside the inmate‘s cell within view of other prisoners).
Although the last two factors weigh in favor of a determination of reasonableness, the effect of the first two factors is so extreme that a conclusion of unreasonableness is compelled. Courts throughout the country have universally frowned upon cross-gender strip searches in the absence of an emergency or exigent circumstances.8
The First Circuit reiterated its recognition “that a severe if not gross interference with a person‘s privacy occurs when guards conduct a visual inspection of body cavities.” Id. at 446 (citation, alteration and internal quotation marks omitted). The court also explained that:
Certainly by the time of this search in 1987, the trend, if not the clearly established law, was that an inmate‘s constitutional right to privacy is violated when guards of the opposite sex regularly observe him/her engaged in personal activities, such as undressing, showering and using the toilet.
Id. (citations omitted).
The First Circuit summarized the state of the law governing cross-gender searches as of late 1987:
(1) inadvertent, occasional, casual, and/or restricted observations of an inmate‘s naked body by a guard of the opposite sex did not violate the
Fourth Amendment and (2) if the observation was other than inadvertent, occasional, casual, and/or restricted, such observation would (in all likelihood) violate theFourth Amendment , except in an emergency condition.
Id. at 447 (emphasis in the original).
In sum, almost twenty years ago, the First Circuit ruled, in no uncertain terms, that visual observation of a nude male by a female corrections officer “would (in all likelihood),” violate that inmate‘s constitutional right to be free from unreasonable searches. Id. It is notable that, in determining that the officers involved were entitled to qualified immunity, the First Circuit focused on the emergency conditions surrounding the search. See id. at 448
underwear. In most jurisdictions within this circuit, one could not appear in public dressed, (or more precisely undressed) in that manner. See, e.g.,
If the search conducted were in fact a pat-down search of a partially clothed inmate, we would probably agree that the search was reasonable. However, because Byrd was subjected to a cross-gender strip search while nearly nude, we conclude that the search was patently unreasonable.
(“The caselaw supports the conclusion that, in an emergency situation, a visual body cavity search conducted within the view of a guard of the opposite sex, even if other than an inadvertent and/or restricted view, would not violate an inmate‘s
Fourth Amendment right.“)
(citation omitted) (emphasis added).
In 1981, the Fourth Circuit similarly recognized the inappropriateness of cross-gender strip searches. See Lee v. Downs, 641 F.2d 1117, 1120 (4th Cir.1981) (“[M]ales subject to frisk searches by female guards during which the genitals are touched and felt through clothing [are] entitled to injunctive relief.“) (citation omitted) (emphasis added). This description by the Fourth Circuit fits the facts of this case perfectly. The professionalism with which the search is conducted in no way changes the consistent depiction of a cross-gender strip search in the absence of an emergency as violative of
In 1999, the Fifth Circuit decided that an inmate stated a valid
In 1994, the Seventh Circuit decided Canedy v. Boardman, 16 F.3d 183 (7th Cir.1994). Canedy sued the corrections facility where he was housed, asserting that his privacy rights were violated when two female guards “strip searched him” “during a shakedown of his housing unit.” Id. at 184. Canedy also alleged that the violation could have readily been prevented due to the fact that ten male officers were nearby at the time. See id.
The district court dismissed Canedy‘s Complaint for failure to state a claim. The district court determined that any privacy rights possessed by Canedy were outweighed by the prison‘s interest in providing equal employment opportunities for female officers. The district court specifically ruled:
If female guards are to be given equal opportunity for employment and promotion, it is necessary to allow them to observe male prisoners and conduct searches just as male officers would. To exclude females from observing or participating in all aspects of guard work could prevent them from gaining the experience they need to advance to higher positions, and bar them from assuming those positions that require monitoring of inmate searches or other activities in which inmates are unclothed.
Id. (citation omitted).
As a preliminary matter, the Seventh Circuit acknowledged the general consensus that a strip search is “one of the clearest forms of degradation in Western Society ...” Id. at 185 (citation and alteration omitted). The Seventh Circuit also recognized that the indignity is multiplied when one‘s body is exposed to a member of the opposite gender. See id. (referencing York, 324 F.2d at 455).
Against that background, the Seventh Circuit considered the invasion of the inmate‘s privacy and the employment rights
The Seventh Circuit characterized Canedy‘s complaint as one alleging that he was subjected to cross-gender strip searches without any effort to accommodate his privacy interests vis á vis the prison‘s parallel interest in affording equal employment opportunities. See id. at 188. In reversing the dismissal of Canedy‘s Complaint, the Seventh Circuit proclaimed that “[a]lmost every federal court that has addressed this issue has come to the conclusion that the Constitution demands such an accommodation [in the absence of an emergency]“, Id. at 187.
In 1995, the Tenth Circuit addressed the issue of cross-gender strip searches in Hayes v. Marriott, 70 F.3d 1144 (10th Cir.1995). Hayes alleged that a videotaped strip search conducted in the presence of, inter alia, female corrections officers violated his constitutional rights under the
An administrative officer from the Colorado Department of Corrections (DOC) proffered the following justification for the presence of female staff:
There is no particular DOC policy relating to use of female staff during strip searches. As a matter of courtesy to the inmate population, male staff members are used whenever possible. There is no indication any female staff members conducted a strip search during the dates in question. Although every effort was made to reduce the number of female staff during the search, females are an essential part of our staffing. All posts still had to be covered and females did view parts of the search while conducting their normal duties or observation duties so male staff could conduct the searches. There was no justifiable reason to totally exclude female staff from this required function. Additionally, the total absence of female staff would have alerted inmates to an impending search.
Id. at 1147 (citation omitted).
Despite the affidavit from a prison official attesting that no females actively participated in the strip search and despite the expressed staffing considerations in the affidavit, the Tenth Circuit reversed the grant of summary judgment in favor of the prison officials. See id. at 1147–48. In doing so, the Tenth Circuit explicitly recognized that an inmate‘s privacy rights may be violated by a single cross-gender strip search. See id. at 1147.
This litany of cases over the last thirty years has a recurring theme: cross-gender strip searches in the absence of an emergency violate an inmate‘s right under the
In this case, the indignity of the non-emergency strip search conducted by an unidentified female cadet was compounded by the fact that there were onlookers, at least one of whom videotaped the humiliating event. For these reasons, we conclude that the cross-gender strip search, as conducted in this case, was unreasonable.10
IV. CONCLUSION
We readily acknowledge the deference due prison officials engaged in the admittedly difficult task of administering inmate populations. However, that deference does not extend to sanctioning a clear violation of an inmate‘s constitutional rights. See Giles, 746 F.2d at 617; see also Hayes, 70 F.3d at 1146 (“One of the clearest forms of degradation in Western Society is to strip a person of his clothes. The right to be free from strip searches and degrading body inspections is thus basic to the concept of privacy.“) (citations, alteration and internal quotation marks omitted).
Accordingly, we hold that the cross-gender strip search performed on Byrd was unreasonable as a matter of law under the facts of this case and violated Byrd‘s rights under the
N.R. SMITH, Circuit Judge, concurring in part and dissenting in part, joined by KOZINSKI, Chief Judge, and GOULD, TALLMAN, and BEA, Circuit Judges:
I agree with the majority‘s conclusion regarding Byrd‘s claims under the
In determining the reasonableness of a search under the
Before addressing the Bell factors, however, it is necessary to highlight the limited nature of our review. The Supreme Court has instructed that “[p]rison administrators ... should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.” Id. at 547, 99 S.Ct. 1861.
We are also constrained in our review by the jury‘s undisputed factual findings that: (1) O‘Connell did not “intentionally squeez[e] or knead[] [Byrd‘s] penis or scrotum or improperly touch[] his anus through his underwear,” and (2) O‘Connell‘s search was “done for [an] identified security need.” Tempting though it may be to paint the facts differently on appeal, the jury made these findings and Byrd has not challenged them. With these considerations in mind, I now turn to the Bell factors and again emphasize that the majority agrees that two of the factors—the justification for the search and place in which it was conducted—weigh in favor of finding O‘Connell‘s search reasonable. Maj. Op. 1143.
It is appropriate to begin the analysis by looking at the justification for initiating the search, because, in the absence of a proper justification, even the most unintrusive search is unreasonable. The prison officials initiated their searches in response to evidence that contraband was circulating in the jail in the wake of multiple fights that had broken out in Byrd‘s housing unit. This is not disputed. Maintaining the internal security of the prison was at stake, and the need to eliminate the possibility of dangerous contraband somewhere on a prisoner‘s person in such a volatile atmosphere certainly justifies initiating the type of search at issue here. See Michenfelder, 860 F.2d at 333 (holding that, among other things, “testimony and physical evidence ... [of] contraband” justified the initiation of strip searches). Moreover, it is undisputed that inmates frequently attempt to conceal contraband in their body cavities, thus furthering the need for strip searches as a means of preventing the proliferation of contraband and homemade weapons within the prison. See, e.g., Bell, 441 U.S. at 559, 99 S.Ct. 1861 (“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. And inmate attempts to secrete these items into the facility by concealing them in body cavities are documented in this record ... and in other cases.“). On top of all this, the jury found that the search was done for an identified security need, which Byrd does not challenge on appeal. In light of such considerations, the prison‘s need to confiscate all contraband, and therefore initiate these searches, was both pressing and significant. Id. at 546-47, 99 S.Ct. 1861 (“Central to all other corrections goals is the institutional consideration of internal security within the corrections facilities themselves.“) (internal quotation marks, citation, and alteration omitted).
My agreement with the majority ends there, however, as a review of the remaining two Bell factors—the scope and manner of the search—also establishes the reasonableness of O‘Connell‘s search of Byrd. Relying on a string of cases that upheld both female officers’ visual observation of unclothed males and their performing pat-down searches on males, the majority concludes that, under the first Bell factor, “[t]he scope of the intrusion in this case far exceeds searches we have previously sanctioned....” Maj. Op. 1142. The majority is wrong.
Dealing first with the scope of O‘Connell‘s search, such search was limited to a pat-down of a partially clothed inmate in an attempt to locate contraband. The search was both reasonable and necessary to ensure prisoners at the Durango Jail were not concealing weapons or other contraband. Cf. Bull, 595 F.3d at 969 (“[A]rrestees’ use of body cavities as a method of smuggling drugs, weapons, and items used to escape custody is an immediate and troubling problem for San Francisco jail administrators.“). In evaluating the scope of a search, the searching officer‘s gender is irrelevant.3
The Supreme Court and the Ninth Circuit have previously validated even strip searches and body cavity searches. See, e.g., Bell, 441 U.S. at 558-60, 99 S.Ct. 1861 (validating visual inspections of body cavities as part of strip searches in the prison setting); Thompson, 111 F.3d 694, 700 (9th Cir. 1997) (holding body cavity searches did not violate clearly established rights under qualified immunity analysis); Michenfelder, 860 F.2d at 333 (approving visual strip searches in the prison setting); Rickman v. Avaniti, 854 F.2d 327, 328 (9th Cir.1988) (approving strip searches in prisons). I recognize, of course, that these cases involved only visual searches and no touching (in contrast to O‘Connell‘s search). However, it is clear that pat-down searches can be constitutional even outside of a prison setting. See Terry v. Ohio, 392 U.S. 1, 17 n. 13, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (describing a frisk as “feel[ing] with sensitive fingers every portion of the prisoner‘s body ... the prisoner‘s arms and armpits, waistline and back, the groin and area about the testicles, and the entire surface of the legs down to the feet” (internal quotation mark omitted)). Pat-down searches are also less intrusive than strip searches. Giles v. Ackerman, 746 F.2d 614, 618 (9th Cir.1984), overruled on other grounds by Hodgers-Durgin v. de la Vina, 199 F.3d 1037 (9th Cir.1999) (en banc). The officers here searched the prisoners professionally,3 following a procedure that minimized physical contact to the extent possible. O‘Connell searched Byrd over his boxer shorts, and he doesn‘t claim she ever looked underneath them. The entire search took no more than a minute. Thus its scope did not “far exceed[]” what we have previously sanctioned. Contra Maj. Op. 1142.
I first note “our prior case law[, which] suggests that prisoners’ legitimate expectations of bodily privacy from persons of the opposite sex are extremely limited.” Jordan v. Gardner, 986 F.2d 1521, 1524 (9th Cir.1993) (en banc). Against that backdrop, we now review our other precedent: (1) female officers may pat down the groin area of fully clothed male inmates, Grummett, 779 F.2d at 496; and (2) female officers may observe unclothed male inmates in their cells and in the showers, Michenfelder, 860 F.2d at 334. Admittedly, neither of these precedents covers the current situation—a female officer‘s pat-down of a partially-clothed male inmate. Under the circumstances presented here, however, there is no meaningful difference between Byrd‘s search and what we have previously upheld. O‘Connell never saw Byrd‘s exposed groin area or his anus, in contrast to the female officers in Michenfelder, and the search was done in a professional, swift, and appropriate manner that involved no touching of the flesh under Byrd‘s boxer shorts. See Grummett, 779 F.2d at 496 (validating searches where, among other things, the searches are “done briefly ... [and] are performed by the female guards in a professional manner“). Moreover, the jury found that O‘Connell did not intentionally squeeze or knead Byrd‘s penis or scrotum or improperly touch his anus through the boxer shorts and that O‘Connell‘s search was done for an identified security need. Again, Byrd has not challenged these findings.
In addition, the County has offered undisputed evidence that the County did not have sufficient numbers of male detention officers to conduct searches of male inmates without the assistance of female officers.4 Thus, even if it may seem odd to utilize a female officer to conduct a pat-down of a male inmate when other male officers are present, the realities of the prison‘s staffing needs justify such searches. See Michenfelder, 860 F.2d at 334 (“[R]equiring [female employees] to be replaced by males for the duration of strip searches, would displace officers through-
In order to provide a basis for its decision, the majority terms this search a strip search, rather than a pat-down search. This is error. True, this search differed somewhat from the prison‘s definition of a “frisk (body) search,” because more than Byrd‘s socks and shoes were removed. However, it is undisputed that it involved only an inspection of Byrd‘s (already removed) clothing and “feeling the contours of his clothed body.” O‘Connell testified that at no point did she pat down or touch any unclothed areas. Thus, the search is more accurately described as a “pat-down,” since a “strip search” involves a “visual scan of the inmate‘s body after all clothing has been removed.” Indeed, the strip searches in the cases relied on by the majority were visual inspections of naked inmates. See Moore v. Carwell, 168 F.3d 234, 236 (5th Cir.1999) (male inmate “being viewed naked by a female [officer]“); Canedy v. Boardman, 16 F.3d 183, 185, 186 n. 2 (7th Cir.1994) (female guards’ visual observations of male inmate‘s “naked body” prohibited, but pat-down searches constitutional); Hayes v. Marriott, 70 F.3d 1144, 1145–47 (10th Cir.1995) (Visual body cavity search of male inmate in presence of non-essential female staff. The court noted “the
The majority‘s description of this search as a strip search allows it to discount this court‘s precedent relevant to the case at hand. Grummett is on point. This court held that “routine pat-down searches, which include the groin area, and which are otherwise justified by security needs, do not violate the [F]ourteenth [A]mendment because a correctional officer of the opposite gender conducts such a search.” Id. at 495; see id. at 496 (finding no
Given that the purpose of the search is to feel for contraband, the majority‘s attempt to distinguish Grummett solely on the thickness or extent of the clothing is unconvincing. In order to be effective, the searcher must be able to feel the inside thigh and perineum. On an inmate in street clothes, this may require more pressure, but results in the same contact in the same area. In both cases, no skin to skin contact was made; both searches were only over clothed areas. Both searches were of the same groin area. Both searches were brief and conducted for legitimate security purposes. 779 F.2d at 496. Given the area, nature, and purpose of the search, it would be unreasonable to presume that the female guards in Grummett did not face the same challenges O‘Connell did.
Moreover, even if this were a strip search, this court‘s precedent does not suggest that a cross-gender strip search is unconstitutional where the genitals remain covered throughout the procedure. After considering Grummett, Jordan, and Michenfelder, this court noted that “it is highly questionable even today whether prison inmates have a
Lastly, the majority seems to rest its analysis of the “manner” factor on the fact that O‘Connell was unidentified to Byrd and was wearing jeans and a t-shirt and that there were ten to fifteen non-participating officers present. Maj. Op. 1142–43. Even putting aside our heightened deference to prison officials, the majority does not explain how the number of officers, their attire, or their lack of identification somehow outweigh the jury‘s finding that the search was appropriate,5 the professional nature of the search, or the County‘s undisputed need to utilize its female officers (or even how these facts are relevant). Nor were such facts unreasonable in any event. O‘Connell testified that Byrd was allowed to ask her questions but didn‘t. He talked to other officers after the search was over, and they explained that cadets had helped conduct the search. It was also not unreasonable for some officers not to participate in the search. We see no reason to intimate that a search is constitutionally suspect because not every single
The majority‘s holding on this point illustrates the risks of not giving proper deference to prison officials. As part of the prison‘s search for contraband, officials ordered more than ninety inmates out of their cells into the common area. In contrast, there were only twenty-five to thirty Academy cadets and ten to fifteen uniformed detention officers present. At best, the prison officials were outnumbered two to one. Importantly, judges are instructed not to intrude into that sphere of decision making. Deciding to accelerate the searches by using additional assistance from female cadets hardly seems unreasonable in these circumstances. I question second-guessing prison administrators when such credible threats to officers’ safety are present. Indeed, I would think such security concerns vindicate the Supreme Court‘s instruction to defer to prison administrators—an instruction that it seems the majority has too hastily disregarded.
In sum, we are guided by our precedent and bound by Supreme Court precedent, the jury‘s undisputed factual findings, and our deference to prison officials’ expertise in these matters. Balancing the four Bell factors in light of these limitations, I conclude that O‘Connell‘s search of Byrd was reasonable under the