*2 Bеfore EASTERBROOK, KANNE, and WILLIAMS, Circuit Judges. EASTERBROOK, Circuit Judge. Police in Indianapolis arrested James Campbell for possessing marijuana. Be- cause jail the local crowded, Indianapolis does make a full custodial arrest of person each arrested misdemeanor; for a instead it issues a summons and citation. Before releasing Campbell, however, the police conducted a body-cavity search for drugs. Nothing found, was and no crimi- prosecution nal ensued. Campbell then officers, sued ten Police, the Chief of City of Indianapolis, under 42 U.S.C. § contending search violated the fourth amendment. He seeks not only damages but also an injunction against this practice. The district court denied Camp- request bell’s for a preliminary injunction, concluding that he has an adequate reme- dy at law. He immediately appealed un- 1292(a)(1). § der 28 U.S.C.
Campbell supposes
money
never is an adequate remedy for a consti
tutional wrong. That belief is incorrect.
Sampson
v. Murray,
89-
94 S.Ct.
(1974);
L.Ed.2d 166
Music,
Second
Inc. v. Chicago, 333
(7th Cir.2003);
F.3d 846
Webb v. Ball
University,
State
damages that other prospect rely on cannot bell public. general injure the ability to limited may be persons arrested false fallible, costs so the Judges Angeles Los Cf. body-cavity searches. considered must be always positives *3 1660, 75 95, 103 S.Ct. Lyons, the When among remedies. choоsing his (1983). represents He this low—and are negatives of false costs parties. interests, of third not those remedy at own the say that to it means is what and arrested apt to be if he is Only correspondingly law is —there relief prospective would again searched prema- risk incur the to reason slight suggests in record nothing this apt, and Camp- injunctive relief. overbroad ture or He repeat offender. is a Campbell way, and that just getting suit bell’s not he does contrary, that alleges, to opportunity a full had City has not the arrested has never been drugs and this use Once practices. its justify explain he is that mean allegations These course, before. the decision its has run litigation injunctive pursue to right party the if the not even effect precedential will court relief. If this monetary. remedy is is unconsti- City’s practice the that decides Affirmed or not whether it must cease then tutional dissenting. WILLIAMS, Judge, (for Circuit prospect issues injunction a formal suspects to thousands paid damages address fails to majority opinion The line). If, howev- City into bring the would allega- in this testimony case—factual key end, or suffers er, City prevails to court only require this which tions defeat, avoiding prema- then only partial detail more Campbеll’s claim evaluate to have prove relief will injunctive ture but provides, majority opinion than restraint. a wise exercise been IWhile result. a different suggest Campbell of whether regard question see how more, to it is difficult isWhat injunction for a standing injunction an issue court could he has close, ultimately conclude I events the same behest. bell’s Unless requirement constitutional satisfied there is to him again likely happen to inadequacy demonstrated has also him and the controversy between reasons, I For these damages. money handling of other City’s future about dissent. Bradford, arrests. Weinstein 46 L.Ed.2d S.Ct. Background1 I. Additional represent to (1975). sought Campbell has India- correctly notes that majority misdemeanors, but arrested persons
all Campbell officers police napolis certified has not the district on June Township, testified court made limited the district 1. Because began car and parked his p.m., he fact, about 8 summary from my is taken findings of friend, Kimo of his walking house preliminary in- towards testimony presented in the analyst. Ac- Parham, product parties’ briefs. insurance hearing and junction Miller, it allegations discussed Frank cording to defendant Officer the factual While most that are recount- my are those Miller light outside. Officer dissent was still analysis, walking I offer case's towards germane to this Campbell saw ed that he Campbell's summary put stop. encounter brief and told Parham's home motives, context: police Campbell stat- officer's Unsure of the Par- walk towards he continued ed that Trans- the School Campbell, employed as residence, enough get hoping to close Perry ham’s Security Supervisor for portation and search; to a body cavity however, the ma- he observed the search from a window jority does not mention of his home actually saw genitals conducted inspection exрosed. their of Campbell’s genitalia and anal public, area in namely Not only was cavity search backyard, allegedly visible done public, but it was done driveway of the of Campbell’s friend, home Indianapolis Department (“IPD”) Police Parham, Kimo eye-shot within of Par- policy.2 This authorizes such “thor- (who ham search) observed the and his ough body searches” of persons charged young fact, children. Parham testified with nonviolent misdemeanors including *4 that, words, Campbell’s so "somebody in- search. Officer Miller testified pulled he then side going would hear what was on and come up Campbell's pants, gave him summons to outside to observe going what was on.” Offi- appear possession marijuana, of and re- cer Miller testified that he then drew his Campbell leased him. testified charges weapon, Campbell drop told ground, were ever filed. Parham, and then handcuffed him. who tes- tified that he expecting Campbell, was stated 2. While district court made no findings of handcuffed, that he saw Campbell being fact as to whether defendants public conduct asked was happening, what and heard Officer strip body cavity and searches to a Miller Campbell comment that fit the descrip- police policy, blаnket to, parties both point fleeing suspect. tion of a Campbell testified noted, and the district provisions court that Officer once suspect Miller said that the Executive Committee of the Marion Coun foot, fled on he asked Officer Miller whether ty Superior April Order of 2002 and he had Campbell seen exit his car in front of the IPD General Order authorizing 18.02 as Parham’s Campbell house. and Parham testi- searches. fied that there was drugs no mention of made at that time. The Executive Committee of the Marion thereafter, Shortly defendants Officers An- County Superior April Order drew Lamle and Wolfe Scott arrived. Offiсer 2002 states "It is therefore the Order of the Miller a pat-down conducted of Camp- Court, Superior Marion through and its bell nothing. and found Officer Miller told Executive that Committee Wolfe Campbell that dropped had something A. The County Marion longer Sheriff no by a driveway (although car Campbell accept into county arrestees the Marion disputes dropped that he anything). Wolfe Lock-up only charged who are with the picked then up a plastic baggie containing following misdemeanor crimes: marijuana ground. from the Defendant Offi- 1.) Marijuana Possession cer Duley, Kevin the officer had whо been 2.) Paraphernalia Possession pursuing fleeing suspect, testified 3.) .Driving suspended awith license about ten pat-down, minutes after the he ar- 4.) vehicle; Operating a having never re- rived and stated that he did not want to arrest ceived a license Campbell because had he seen face of 5.) Prostitution suspect who fled from him. 6.) Patronizing prostitute Campbell contends Officer Miller then 7.) Conversion Campbell told jail that due to overcrowding, strip he had to search him at that time to C. County The Marion Sheriff advise all drugs if he determine had on him. Law agencies Enforcement within Mar- testified that while backyard in Parham’s and County ion to issue summons handcuffed, lieu while still Officer (donning Miller arrest for above gloves) latex referenced crimes Campbell's pants unbuckled and charges if pulled are be filed with the underpants, down his Mar- exposing his genitalia, County ion had him Prosecutors' Office.” slightly, bend over and provides, examined his General perti- buttocks and Order 18.02 anal area. bell "Any nent part, testified making that Officer Miller felt officer under arrest or Campbell's groin area. coming Miller otherwise prisoner Officer into con- control of a tends he spread must but- make an thorough body immediate and Nothing tocks. wаs found as a result of prisoner....” (emphasis added). characterized Moreover, court this driving and a license
driving without “de as cavity searches and strip cited sources license. suspended hu undignified, dehumanizing, meaning, Po- Indianapolis Moreover, supra note embar unpleasant, testimony terrifying, indi- miliating, Jerry Barker’s Chief lice degradation signifying provided repulsive, rassing, IPD officers cates ” v.G. Beth Mary discretion .... wide and on and submission guidance little (7th search[es]” F.2d “thorough Chicago, 723 conduct words, Wittke, ap- Barker’s Cir.1983) Tinetti Chief policy. (quoting this on dependent aff'd, 620 (E.D.Wis.1979), plication F.Supp. of- Cir.1980)). discretion of “[rjeasоnableness Finally, F.2d circum- totality ficer, on of few based think “we can has stated or, faces,” stat- as [sic] officer stances the state authority by exercises brief, “if the the defendants’ dignity ed privacy citizen’s on intrude necessary.” it is feels genital anal severely as visual G., Mary here.” practiced Damages Money Inadequacy of II. (finding unconstitutional *5 allega- these factual The existence briefly detained women searches opinion, majority the tions, absent driving offenses, including misdemeanor claims at look closer compels a lockup license, city in a driver’s without legal conclusions end, and, different very at money). So the awaiting bail while majority. Sever- by the drawn those than closer case warrants least, Campbell’s that, very the at recognized courts al look. cavity searches minimum, strip and hand case at the consideration Close v. Bell pause,” most the ] us “give[ Wolf- conclusions. legal different compels 1861, 60 558, 520, 99 S.Ct. ish, 441 U.S. conclu- legal court’s district Reviewing the (1979), invasive the as 447 L.Ed.2d ruling de injunction in its sions Fourth fundamental “implicate searches Kenosha, must, v. novo, Kiel we as Dep’t Roe v. Texas rights,” Amendment Cir.2000), (7th court 814, 815 F.3d 236 Services, 299 Regulatory and Protective an Campbell lacks conсlude may properly Cir.2002). the Su- (5th As 395, 404 F.3d subject- being law remedy at Lafayette, v. in Illinois noted preme pursu- public cavity search in ed to 645, S.Ct. 103 U.S. 462 Bell, Supreme the police policy. ant law- in its discussion test we balancing the described booking incident inventory searches ful particular whether to determine to use jailing, and Fourth the is reasonable search impractical be would Police conduct S.Ct. 99 Amendment. embarrassingly in- or unreasonable —or magnitude weighs the That test 1861. readi- can more street the trusive —on against privacy personal invasion of at the performed privately ly —be —and conducting interest governmental sup- the interests example, For station. question. searches particular would to arrest incident a search porting Moreover, 559-60, 1861. 99 S.Ct. on arrestee disrobing an hardly justify most critical, certainly and “[o]ne necessities street, practical but v. obvious, the Bell elements may Wolfish even jail administration of routine reasonableness into balancing inquiry before clothes prisoner’s taking a justify it in which place ‘the strip search would him, step although confining ” F.2d Shealy, 660 v. Logan is conducted.’ rare. (4th Cir.1981) Bell, (quoting West, 441 v. Cir.2001) 1861). U.S. at 99 S.Ct. (noting “we have repeatedly empha sized the necessity of сonducting This Mary strip court Beth G. found that search in private” and strip concluding searches of “[t]he women arrested for mis- that, fact justification absent clear demeanor offenses or exi conducted at the city gent circumstances, lockup while an they officer awaited is not bond al were un- lowed to strip reasonable under the Bell on arrestee balancing public test street thereby to a violated the Fourth Amend- incident to an G., ment. Mary arrest necessarily 728 F.2d at means that an officer Citing, alia, inter cannot go this court’s decision even further than simply disrob Tinetti, the Mary ing Beth G. by arrestee found actually touching magnitude of the state’s penetrating intrusion into exposed arrestee’s genita plaintiffs’ privacy was extremely lia on high. public street.”); United States (“we at 1272 can think of Ford, few exercises of (E.D.Va. F.Supp.2d by authority 2002) state that intrude on the (granting a motion to suppress, stat citizen’s privacy and dignity severely as “[t]aking the Bell account, factors into the visual anal genital prac- the Court concludes ticed here” where detainees were made to engaged in a highly invasive squat and bend permit over to inspection exposing the defendant’s buttocks on the оf their vaginal areas). anal The pri- side of a highway in broad daylight, vacy concerns triggered by the particular and that the search violated the defen searches under scrutiny were found to out- dant’s Fourth protection”). Amendment *6 weigh City the of Chicago’s proffered need That the search of Campbell was con- to (to conduct the prevent searches misde- ducted in public significantly increases the meanor offenders from bringing in weap- severity of governmental the intrusion in- ons or contraband into the lockups), volved here. The professed defendants’ perceived as the security risks of not doing reasons for the in all likelihood the can- searches was not borne by out not justify such extreme incursions ain evidence in the record. Id. at 1272-73. person’s privacy under the The Fourth searches in Amend- Mary Beth G. were con- ment. That the policy ducted confers without unbridled even suspicion reasonable discretion on that the officers plaintiffs and does not posed security risks to require even by reasonable lockup possibly suspicion for an concealing weapons or to conduct a strip contraband and were cavity thereby found un- (recall, constitutionаl. at defendants If write searches their Mary brief Beth that an G. officer can were unreason- submit a able they citizen to were such a search “if conducted on the officer misde- feels meanor offenders it is during necessary”) a brief time makes the of of likelihood detention in a City lockup policy’s without reason- unconstitutionality only able suspicion that they posed greater. security Constitution clearly requires threat to the lockup, then it is hard to see least suspicion reasonable for a law how conducting a body cavity search, also enforcement subject officеr to person to during period a brief detention, but such a G., search. Mary See 723 public, of suspected 1273; misdemeanor F.2d offend- Swain v. Spinney, 117 F.3d er, who incontrovertibly posed (1st Cir.1997) no threat to (citing cases holding the the arresting officers’ security, could be Fifth, same Sixth, and Eleventh constitutionally See, sound. e.g., Circuits). Amaechi Fuller also v. Jewelry, M.G. harm.”). irreparable Cir.1991) prove (9th sufficient 1437, 1446-47 F.2d establish can words, Campbell cavity other strip that (holding by demonstrat- harm element but irreparable to arrest incident conducted searches rights. constitutional his violated suspicion ing violation reasonable
without
is
harm
irrеparable
con-
also,
Furthermore, showing
Amendment;
searches
Fourth
ar-
that
method
suspicion
common
most
reasonable
“[pjrobably
ducted
dangerous
or
weapons
is no
there
carrying
demonstrating
ee is
rest
constitutional, while conduct-
&
Miller
Wright,
11A
is
remedy.”
legal
contraband
order
“in
Procedure
invasive
Practice
Kane,
Federal
or evidence
Supply
and seize
Fleet Wholesale
discover
also
§
fruits
2944. See
”
(emphasis
constitutional
Co.,.
is not
F.2d
Arms
crime
Remington
v.Co.
“cannot
added)).
the defendants
Finally,
injury
Cir.1988) (“To
say that
(7th
harmed
[they are]
reasonably assert
methods
means
irreparable
is
being
sense
cognizable
legally
any
law)
inadequate.”
(remedies at
repair
violations.”
constitutional
enjoined
original)).3
(emphasis
(9th
719, 727
INS,
F.2d
v.
Zepeda
majority’s
Furthermore, contrary to the
Cir.1985).
decides
“[i]f
suggestion
depriva-
alleged
Moreover,
“[w]hen
then
unconstitutional
is
practice
City’s
involved,
right
of a constitutional
tion
(for
prospect
...
must cease
it
showing
no further
hold
courts
most
suspects
thousands
paid
damages
necessary.”
injury
irreparable
2,p.
line),” supra
City into
bring the
would
(2d
804, 806
Cuomo,
v.
Mitchell
possibility
that the
recognized
courts
Miller,
A.&
Cir.1984)
Wright
(citing 11 C.
only meager
engenders
damages
money
2948.1
§
Proсedure
Practice
Federal
incur-
police
against
effect
deterrent
any
if&
Wright, Miller
11A
(1973)). See
See,
rights.
Amendment
on Fourth
sions
and Procedure:
Practice
Kane, Federal
197, 202
Gelston, 364 F.2d
e.g., Lankford
ed.1995) (same);
(2d
§ 2948.1
2d
Civil
in-
Cir.1966)
(4th
(granting
Comm’n, 284
Airport
Henry v. Greenville
violations
against
protect
junction
(“The
Cir.1960)
District
*7
F.2d
rights
Amendment
Fourth
plaintiffs’
of
by
deny relief
to
no discretion
has
Court
experience
alia,
“the lesson
when, inter
who
person
a
to
injunction
money
possibility
remote
is
undisputed evidence
by
clearly establishes
po-
future
to
no deterrent
damages serves
constitutional
a
being denied
is
that he
Ohio, 367
Mapp
(citing
v.
invаsions”
lice
cases)).
Peo-
National
(citing
right”
Cf.
1684, L.Ed.2d
6
651-52,
81 S.Ct.
Wilmette,
U.S.
914
Village
v.
Action
ple’s
(where
Supreme
(1961))
(“Even
Cir.1990)
1081
(7th
rele-
futility of
obvious
“[t]he
recognized
amendment
of first
deprivation
temporary
pro-
Amendment
Fourth
gating the
generally
rights
expression
freedom
irrep-
bewill
that she
established
plaintiff has
significant intrusions
involving
cases
Other
3.
is-
injunction does not
an
arably
if
harmed
unreasonable
representing
privacy
Local
sue.'');
Employees,
Gov’t
Fed’n
Am.
Amendment
the Fourth
'
Wilson,
*14
at
WL
1990
208749
remedy
1857
at
no
suggest that there
1990)
injunc-
an
(granting
(E.D.Cal. July
See,
v. Bd.
e.g., Bannister
Campbell.
law for
testing is an
drug
tion,
"Urinalysis
stating
County,
Leavenworth
County Comm’rs of
humiliating proсe-
invasive, degrading and
(D.Kan.1993)
Kan.,
1252
F.Supp.
by constitution-
injury
inflicted
dure
by
unconsti-
an
("Because
injury inflicted
be remed-
cannot
character
of this
by
violation
al
remedied
drug test cannot
tutional
award.").
damage
by a
ied
award,
concludes
the court
damage
tection of other remedies [such as criminal
Music,
Second City
Inc. v. Chicago, 333
sanctions]”)).
or civil
also Elkins v. F.3d
Cir.2003)
is also distinguish-
States,
United
206, 220,
able from
S.Ct.
Campbell’s case. Second City
(1960)
wrong to
on which
case
Campbell’s
in
present
tions
purposes.
of limitation
for statute
a
standing for
found
comment
have
courts
basis
provides
of itself
in and
case
present-
claim
even when
injunction,
majority’s broader
preliminary
the
support
to
claims
and
speculative
a normal
somewhat
damages are
ed
judicial
seizure.
paid
or
have
improper
Courts
to an
harm.
future
response
in
facts, alleged
following
the
notice
Standing
III.
had
finding
party
a
case, in
Campbell’s
(1)
Lyons,
injunction:
Angeles
preliminary
a
standing
Los
In
was
75 L.Ed.2d
plaintiff
the
95, 103 S.Ct.
to which
acts
police
the
a two-
forth
complains
set
he
(1983),
Supreme
which
about
subjected
in
satisfy
must
plaintiffs
or
part
policy;
test
by police
were authorized
pre-
for a
standing
to demonstrate
occa-
order
limit the
clearly
not
did
policy
police
must “al-
plaintiff
injunction:
liminary
take
activity could
police
which
sions in
encounter
another
would
he
lege that
place.
and,
part,
pertinent
in
police”
yielded
has
to date
my research
As
police
authorized
or
City ordered
“that
I
point,
directly on
case
Circuit
Seventh
which
about
the manner
act” in
officers
from
authority.
law
Case
outside
look to
105-06, 103
Id. at
complains.
plaintiff
Campbell
suggests
circuits
our sister
has satisfied
Campbell
1660.
S.Ct.
injunction
preliminary
standing for
has
he
suffi-
as
that test
part
second
conducting
enjoin defendants
admit-
the defendants
alleged, and
ciently
example,
For
him.
against
cavity searches
officers
IPD
ted,5
Safir, 156
E. v.
public
cavity search
Deshawn
ato
words,
distin
(2d Cir.1998),
Circuit
In other
the Second
policy.6
IPD
in-
standing
Executive
Lyons
found
Order 18.02
guished
General
IPD
Superior
County
because
part
large
the Marion
relief
junctive
Committeе
together
“officially
April
were
activities
challenged police
Order
offi-
police
and the
that “there
found
such searches
policies.” It
authorize
endorsed
(appar-
their
injury
were within
because
recurring
defendants
cer
a likelihood
unbridled) discretion,
interpreted
authorized
ently
Squad’s activities
[police]
they conduct-
Barker, when
understand
Chief
memorandum
written
by a
the invasive
Counsel
Corporation
ed
ing between
parts.
other
private
bell’s
Police Commissioner.”
aof written
words, the existence
stand-
Lyons
part of
for the first
As
con
complained-of
authorizing the
seеking a
test,
plaintiff
requiring
case,
bolsters
duct,
present
that he
to show
injunction
harm.
of future
claim
encounter
another
threat
a real
faces
district
review
¶
court must
("The
6. While
Compl.
Am.
Compare PL's
error,
*9
clear
for
findings of fact
court’s
Camp-
James
on Plaintiff
performed
search
Inc.,
(IMC),
Logistics
v. U.S.F.
Anderson
or
practice
pursuant performed
bell was
Cir.2001),
the district
Depart-
Indianapolis Police
policy of
on
findings of fact
made
this case
court in
Compl.
ment.”)
to Am.
Defs.' Answer
However,
admit
defendants
this issue.
allega-
¶
(“Defendants
material
admit
done
case was
in this
at issue
that the
56.”).
paragrаph
tions in
practice.
policy or
pursuant to IPD
The Ninth Circuit’s
decision
Thomas S.Ct.
v. County
Angeles,
Thomas,
Los
Addressing whether “the same events
would be
an illegal
likely
happen
chokehold
again to [Campbell]”,
again
future,
stated,
supra p.
“po-
Campbell contends that these
lice оfficers were instructed to use
public
invasive
choke-
searches are done with
only
holds
when lesser degrees' of
some
force
degree of
do
frequency. Defendant Of
not suffice and
then
gain
‘to
ficer
control of
Miller
testified
he alone
con
suspect
who is violently resisting the
twenty
ducted
thirty
He
searches.
”
officer or trying to escape.’ Lyons, 461
also testified
he
has observed other
an officer his discre- necessary” in it is “feels he
ever on the no limit functionally places
tion The defendants’ policy.
application Robinson, 414 v. States to United
citation L.Ed.2d 218, 94 S.Ct. discretion issue on the claim, be- not undermine
does G., “[t]he Mary stated as we cause suggest did not ] Robinson [in subject may validly arrestеd
person feels is arresting officer
any search (emphasis
necessary.” conferred broad discretion Such original). Evanston, (argued), Freedman M. Alan fact officers, combined IPD upon Petitioner-Appellant. IL, for consistent cavity body likeli- only increase policy, R. Stephen (argued), Perkins D. Thomas subjected bewill Campbell hood General, Attorney Creason, Office again cavity search IN, Respondent-Appel- Indianapolis, future. lee. Further, of misdemeanors the list subjected to may be person which Judge, and FLAUM, Chief Before cited sources see in public, cavity EASTERBROOK, COFFEY, POSNER, underscores note supra ROVNER, KANNE, MANION, RIPPLE, unreasonableness, also multi- but policy’s EVANS, WOOD, P. DIANE will be likelihоod plies Judges. WILLIAMS, Circuit future. a search to such dissent. respectfully I Judge, with whom RIPPLE, Circuit P. ROVNER, DIANE DIAMOND
LLANA Judges, WILLIAMS, Circuit WOOD from the denial dissenting join, banc. rehearing en WALLACE, Jr., Procedure Appellate Rule of Ray Federal Donald granted should be rehearing Petitioner-Appellant, explains neces- “(1) consideration banc en uniformity of maintain or sary secure Respondent-Appellee. DAVIS, Cecil “(2) proceed- or decisions” the court’s im- exceptional question ing involves 02-4262. No. disjunctively- these Both portance.” Appeals, States United uniformity and in Rule criteria stated 35— Circuit. Seventh court’s importance justify exceptional — en banc. this case rehearing 28, 2004. June uniformity, criterion, first As line holding majority’s panel