C. ALAN POWELL, individually, and on behalf of all others similarly situated, TORY DUNLAP, individually, and on behalf of all other similarly situated, LEE ANTONIO SMITH, individually, and on behalf of all other similarly situated, DAVID EVANS, individually, and on behalf of all others similarly situated, Plaintiffs Appellees Cross-Appellants, versus SHERIFF JACQUELINE BARRETT, Fulton County, State of Georgia, SHERIFF MYRON FREEMAN, FULTON COUNTY, STATE OF GEORGIA, CHAIRPERSON KAREN HANDEL, Fulton County Board of Commissioners, MEMBER ROBB PITTS, Fulton County Board of Commissioners, MEMBER TOM LOWE, Fulton County Board of Commissioners, MEMBER EMMA I. DARNELL, Fulton County Board of Commissioners, MEMBER NANCY A. BOXILL, Fulton County Board of Commissioners, MEMBER WILLIAM EDWARDS, a.k.a. BILL EDWARDS, Fulton County Board of Commissioners, CITY OF ATLANTA, State of Georgia, Defendants-Appellants Cross-Appellees.
No. 05-16734
D. C. Docket No. 04-01100-CV-RWS-1
United States Court of Appeals, Eleventh Circuit
September 4, 2008
(September 4, 2008)
Before EDMONDSON, Chief Judge, and TJOFLAT, ANDERSON, BIRCH, DUBINA, BLACK, CARNES, BARKETT, HULL, MARCUS, WILSON and PRYOR, Circuit Judges.
CARNES, Circuit Judge:
We granted rehearing en banc to decide whether a policy or practice of strip searching all arrestees as part of the process of booking them into the general population of a detention facility, even without reasonable suspicion to believe that they may be concealing contraband, is constitutionally permissible. We answer that question in the affirmative, at least where the strip search is no more intrusive than the one the Supreme Court upheld in Bell v. Wolfish, 441 U.S. 520, 99 S. Ct. 1861 (1979).
The facts and procedural history of this entire case are set out in accurate detail in the panel opinion. Powell v. Barrett, 496 F.3d 1288 (11th Cir. 2007), vacated, No. 05-16734 (11th Cir. Feb. 1, 2008). As it explains, the named plaintiffs in this class action lawsuit are eleven former detainees at the Fulton County Jail in Georgia, all of whom were strip searched upon entering or re-entering the general population at that detention facility. Id. at 1296, 1298. The eleven named plaintiffs can be divided into three groups, which overlap to some extent. Id. at 1297. One of those three groups is “the Arrestee Strip Search Class (AR Group),” which consists of the eight plaintiffs who were strip searched as part of the point-of-entry booking process before they were placed into the general jail population for the first time. Id. at 1297-98. Three of the eight members of that group were arrested on charges that supplied reasonable suspicion to believe that they might be concealing contraband at the time they were booked into the jail. Id. at 1312.
Our en banc interest, as reflected in our briefing instructions, is in the strip searches conducted on the other five members of the arrestee group (plaintiffs Powell, Clemons, Middleton, Witherspoon and Wolf). Id. As to each of those five, neither the charge itself nor any other circumstance supplied reasonable
Because this is an appeal from the denial of a motion to dismiss, we take the facts from the allegations of the complaint. Pielage v. McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008); Locke v. SunTrust Bank, 484 F.3d 1343, 1345 n.1 (11th Cir. 2007); Spain v. Brown & Williamson Tobacco Corp., 363 F.3d 1183, 1186 (11th Cir. 2004). The allegations are that four of these five plaintiffs were taken to the Fulton County Jail for detention after being arrested on relatively minor charges: a bail revocation on a disorderly conduct charge, a traffic ticket warrant, a DUI charge, and a contempt charge for failure to pay child support. Powell, 496 F.3d at 1312; (R6:78:¶89.) The fifth plaintiff in this group was arrested on a burglary charge, which we (like the panel) assume did not involve an element of violence. Powell, 496 F.3d at 1312 & n.32.
“Every person booked into the Fulton County Jail general population is subjected to a strip search conducted without an individual determination of reasonable suspicion to justify the search, and regardless of the crime with which the person is charged.” (R6:78:¶180.) The booking process includes “having the arrested person go into a large room with a group of up to thirty to forty other
The five plaintiffs contend that the strip searches violated the
Despite its misgivings, the panel acted properly in following Wilson because it was bound by the prior panel precedent rule to do so. Smith v. GTE Corp., 236 F.3d 1292, 1301-02 (11th Cir. 2001); Cohen v. Office Depot, Inc., 204 F.3d 1069, 1076 (11th Cir. 2000); United States v. Steele, 147 F.3d 1316, 1317-18 (11th Cir. 1998) (en banc); Cargill v. Turpin, 120 F.3d 1366, 1386 (11th Cir. 1997); Gwin v. Snow, 870 F.2d 616, 623-24 (11th Cir. 1989). We are not. Sitting en banc, we are free to revisit the Wilson decision and its interpretation of Bell and to decide for ourselves what Bell means.
II.
The reasoning that leads us to uphold the searches of these five plaintiffs is
A.
Before getting into those details, we pause briefly to address the defendants’ contention that the test we should apply is the one for prison regulations in general that was announced in Turner v. Safley, 482 U.S. 78, 107 S. Ct. 2254 (1987), instead of the more strip search-specific
We also concur in the agreement that is implicit in the parties’ opposing positions—that to the extent of any difference, the Bell
B.
The Bell case involved a class action lawsuit brought by pretrial detainees being held at the federal Metropolitan Correctional Center in New York City. Bell, 441 U.S. at 523, 99 S. Ct. at 1866. The MCC had a general strip search policy that applied to all inmates, id. at 530, 99 S. Ct. at 1869, including pretrial detainees, “convicted inmates who [were] awaiting sentencing or transportation to federal prison,” “convicted prisoners who [had] been lodged at the facility under writs of habeas corpus . . . issued to ensure their presence at upcoming trials, witnesses in protective custody, and persons incarcerated for contempt,” id. at 524, 99 S. Ct. at 1866.
Under the MCC‘s policy all inmates, regardless of the reason for their
The pretrial detainees alleged in their complaint in Bell that the MCC‘s strip search policy violated their
Not only that, but the district court in Bell also found that visually inspecting the body cavities of inmates after each contact visit had turned up barely any contraband. Id. That was not surprising, the court reasoned, given that “inmates and their visitors are in full view during the visits and fully clad,” so that “[t]he secreting of objects in rectal or genital areas becomes in this situation an imposing challenge to nerves and agility.” Id. In all of the time that the searches had been conducted there had been only one occasion when any object—it was a red balloon containing heroin—had been spotted in an inmate‘s vagina. Wolfish v. Levi, 573 F.2d 118, 131 (2d Cir. 1978) (“[I]n this case appellants proved only one instance in the MCC‘s several years of existence when contraband was found during a body cavity inspection.“); Wolfish, 439 F. Supp. at 147. The visual inspections of anuses had never turned up any contraband, a fact that did not surprise the court for physiological reasons it felt compelled to explain. Wolfish, 439 F. Supp. at 147.
Even though it recognized that “the prospect of the strip search may serve as a deterrent to people planning to secrete and import forbidden things,” the district court believed that deterrence “cannot justify the more extreme and offensive
That said, the district court in Bell insisted that it was not treating the security needs of the detention facility lightly and would let the officials who ran it “go as far as may be permitted by the demands of reasonableness in the
However, the district court in Bell did not curtail all routine strip searches. To the contrary, the court justified its restriction on anal and genital inspections by
Three decades have passed but the Bureau of Prisons, which administers MCC, still has not reached the state of “more mature wisdom” that the district court in Bell hoped that it would. A materially identical strip search policy is still in effect at all federal detention facilities. See infra at 23-24. There was
On appeal, the Second Circuit agreed with the district court‘s conclusions about the strip searches. Wolfish, 573 F.2d at 131. Its reasoning about the body cavity inspection part of the strip searches is summed up in these two sentences from its opinion: “The gross violation of personal privacy inherent in such a search cannot be outweighed by the government‘s security interest in maintaining a practice of so little actual utility. To speak plainly, in the circumstances presented by this record, the procedure shocks one‘s conscience.” Id. The Second Circuit‘s decision nonetheless left the detention officials free to require, even without any individualized cause, full body visual strip searches. Id. What the decision prohibited, absent probable cause, was forcing inmates to assume postures or take other actions that would more fully expose their anal and genital areas to visual inspection. Id. In other words, the court of appeals affirmed the district court‘s order on strip searches. Id.
The Supreme Court did not. In facing the issue the high court did not attempt to airbrush the facts but instead described in unblinking terms how the visual body cavity searches were conducted. Bell, 441 U.S. at 558 & n.39, 99 S. Ct. at 1884 & n.39. Because the district court had upheld the strip search policy
The Supreme Court did not hold that inmates at a detention facility had any
The Court explained that the reasonableness of a search cannot be determined by “precise definition or mechanical application,” but instead “requires
As for the first factor, the Supreme Court did not “underestimate the degree to which these searches may invade the personal privacy of inmates.” Id. at 560, 99 S. Ct. at 1885. It described how intrusive the searches were when it described how they were performed. Id. at 558 n.39, 99 S. Ct. at 1884 n.39. And it quoted the Second Circuit‘s view that the searches were a “‘gross violation of personal privacy.‘” Id. at 558, 99 S. Ct. at 1884 (quoting Wolfish, 573 F.2d at 131). As for the second factor, the Court did not “doubt, as the District Court noted, that on occasion a security guard may conduct the search in an abusive fashion.” Id. at 560, 99 S. Ct. at 1885. Such abuses are not to be condoned. Id. The searches must be conducted in a reasonable manner, but the Court recognized that “we deal here with the question whether visual body-cavity inspections . . . can ever be conducted on less than probable cause.” Id. (The emphasized “ever” served to underscore the assumption that the searches will be conducted in a non-abusive, reasonable manner.)
The district court‘s position that less intrusive alternatives, such as metal
The bottom line of the Bell decision is that, after “[b]alancing the significant and legitimate security interests of the institution against the privacy interests of the inmates,” the Supreme Court concluded that the visual body cavity inspections—the most intrusive part of the strip searches in that case—were reasonable under the
We are aware that some courts have interpreted the Bell decision as requiring, or at least permitting lower courts to require, reasonable suspicion as a condition for detention facility strip searches, especially those that involve visual body cavity inspections. See, e.g., Swain v. Spinney, 117 F.3d 1, 7 (1st Cir. 1997) (“Balancing these interests, courts have concluded that, to be reasonable under Wolfish, strip and visual body cavity searches must be justified by at least a reasonable suspicion that the arrestee is concealing contraband or weapons. . . . Accordingly, it is clear that at least the reasonable suspicion standard governs strip and visual body cavity searches in the arrestee context as well.” (citation omitted)); Chapman v. Nichols, 989 F.2d 393, 395 (10th Cir. 1993) (“In this case, it is undisputed that plaintiffs were arrested for minor traffic violations and were awaiting bail, that jail officials had no reasonable suspicion that these particular arrestees were likely to be carrying or concealing weapons or drugs, and that plaintiffs were searched solely because the blanket policy required all detainees to be subjected to a strip search. Every circuit court, including our own, which has considered the above circumstances under the Wolfish balancing test has concluded that a search under these circumstances is unconstitutional.“). We ourselves have done that. Wilson, 251 F.3d at 1343 (“Because Wilson was strip
The Bell decision, correctly read, is inconsistent with the conclusion that the
First, and most fundamentally, the Court in Bell addressed a strip search policy, not any individual searches conducted under it. The Court spoke categorically about the policy, not specifically about a particular search or an individual inmate. See Bell, 441 U.S. at 560, 99 S. Ct. at 1885; see also Hudson v. Palmer, 468 U.S. 517, 538, 104 S. Ct. 3194, 3206 (1984) (O‘Connor, J., concurring) (citing Bell for the proposition that “[i]n some contexts, . . . the Court has rejected the case-by-case approach to the ‘reasonableness’ inquiry in favor of an approach that determines the reasonableness of contested practices in a categorical fashion“). The policy that the Court categorically upheld in Bell
The Supreme Court said: “[A]ssuming for present purposes that inmates, both convicted prisoners and pretrial detainees, retain some Fourth Amendment rights upon commitment to a corrections facility, we nonetheless conclude that these searches do not violate that Amendment.” Id. (citations omitted, emphasis added). When the Court stated that “these searches” do not violate the
If more is needed, it can be found in Justice Powell‘s dissenting opinion in Bell, the significance of which has been underappreciated.1 Justice Powell
I join the opinion of the Court except the discussion and holding with respect to body-cavity searches. In view of the serious intrusion on one‘s privacy occasioned by such a search, I think at least some level of cause, such as a reasonable suspicion, should be required to justify the anal and genital searches described in this case. I therefore dissent on this issue.
Bell, 441 U.S. at 563, 99 S. Ct. at 1886 (Powell, J., concurring in part and dissenting in part). Obviously, Justice Powell would not have dissented from a holding that the Court had not made.
Granted, it can be risky to place too much reliance on dissenting opinions because they sometimes take a Chicken Little or doomsday approach, exaggerating aspects of the majority opinion in order to have a bigger target to attack. Justice Powell‘s dissent in Bell is not of that type. It does not attack the majority opinion. Instead, it states in three sentences that it disagrees with only one aspect of the decision and that is the failure to require “some level of cause, such as a reasonable suspicion” before the “anal and genital searches described in this case” can be performed. Id. If the majority had required reasonable suspicion for body cavity inspection strip searches of pretrial detainees, Justice Powell would not have dissented at all. And Justice Marshall would have had one less thing to complain
From his perspective inside the Court, Justice Powell (like Justice Marshall) had a far better sense of the majority‘s decision in Bell than any of us lower court judges could, and he understood that the decision permitted the body cavity inspection strip searches without reasonable suspicion. Confronted with the dissenting statements, the majority, if it had not intended to permit those searches of pretrial detainees without reasonable suspicion, would have noted as much in its opinion. It would have been a simple matter to do that. The majority, however, did not change its opinion to state that reasonable suspicion was required because Justice Powell‘s (and Justice Marshall‘s) reading of its opinion was accurate. The Bell decision means that the
The decisions that conclude to the contrary not only disregard the existence of the dissenting opinions, but they also ignore one momentous fact of Franciscan simplicity: The Bureau of Prisons’ policy has not changed in any material respect. Under that policy body cavity strip searches without reasonable suspicion are conducted today just as they were when the Bell lawsuit was brought. Indeed, the
If the Supreme Court‘s decision in Bell had required, or permitted lower courts to require, reasonable suspicion before body cavity strip searches could be conducted at detention facilities, the district court in that case would have done so on remand. However, the court must have recognized that the Supreme Court‘s
Some courts fail to recognize that because they misread one sentence from the Bell opinion. See, e.g., Swain, 117 F.3d at 6; Weber v. Dell, 804 F.2d 796, 800 (2d Cir. 1986). In that sentence the Supreme Court said: “But we deal here with the question whether visual body-cavity inspections as contemplated by the [facility‘s] rules can ever be conducted on less than probable cause.” Bell, 441 U.S. at 560, 99 S. Ct. at 1885. The Court answered “yes,” but neither the question nor the answer compels the conclusion that “less than probable cause” means “reasonable suspicion.” The absence of reasonable suspicion is also “less than probable cause.” The context of that sentence, which we have already discussed, see supra at 16, is also important. In the sentences that came before that one the Court had acknowledged that some guards may conduct the visual body cavity searches in an abusive fashion. Bell, 441 U.S. at 560, 99 S. Ct. at 1885; see also Wolfish, 439 F. Supp. at 147. The “ever” referred to searches that did not involve abuse. Bell, 441 U.S. at 560, 99 S. Ct. at 1885.
Interpreting the quoted sentence from Bell to require reasonable suspicion puts more weight on it than the words will bear. Doing so also ignores the rest of the majority opinion as well as the dissenters’ interpretation of it, see id. at 563, 99 S. Ct. at 1886 (Powell, J., concurring in part and dissenting in part); id. at 578, 99 S. Ct. at 1894 (Marshall, J., dissenting), an interpretation that the majority implicitly accepted by not modifying its opinion to require reasonable suspicion. And it ignores the fact that the same searches that were being conducted without reasonable suspicion at MCC when Bell was decided are still being conducted without reasonable suspicion there and at every other federal detention facility in the country.2
One other point is worth discussing. In judging the constitutionality of strip searches for detainees, some other circuits draw a distinction between whether the person has been arrested on a felony charge or just for a misdemeanor or some other lesser violation. See, e.g., Masters v. Crouch, 872 F.2d 1248, 1255 (6th Cir. 1989); Stewart v. Lubbock County, Tex., 767 F.2d 153, 156–57 (5th Cir. 1985); Giles v. Ackerman, 746 F.2d 614, 617 (9th Cir. 1984), overruled on other grounds by Hodgers-Durgin v. de la Vina, 199 F.3d 1037, 1041 n.1 (9th Cir. 1999) (en banc); Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1272 (7th Cir. 1983).
While those decisions vary in detail around the edges, the picture they paint is essentially the same. The arrestee is charged with committing a misdemeanor or some other lesser violation and, while being booked into the detention facility, she
Those decisions are wrong. The difference between felonies and misdemeanors or other lesser offenses is without constitutional significance when it comes to detention facility strip searches. It finds no basis in the Bell decision, in the reasoning of that decision, or in the real world of detention facilities. The Supreme Court made no distinction in Bell between detainees based on whether they had been charged with misdemeanors or felonies or even with no crime at all. Instead, the policy that the Court treated categorically, and upheld categorically, was one under which all “[i]nmates at all Bureau of Prison facilities, including the
Among the “[i]nmates at all Bureau of Prison facilities, including the MCC,” were detainees facing only lesser charges, people incarcerated for contempt of court, and witnesses in protective custody who had not been accused of doing anything wrong. See id. at 524 & n.3, 558, 99 S. Ct. at 1866 & n. 3, 1884. The MCC was hardly a facility where all of the detainees were “awaiting trial on serious federal charges,” as some of the opinions incorrectly state.3 See, e.g., Mary Beth G., 723 F.2d at 1272. It is on that basis that some of the decisions involving county jails erroneously distinguish what they describe as the exaggerated need for strip searches at that type of facility from the real need for them at federal facilities.4 Id.
These reasons support the expert opinion of jail administrators that all of those who are to be detained in the general population of a detention facility should be strip searched when they enter or re-enter it. Id. at 49 (“All jail personnel who testified at this trial, including plaintiffs’ expert, Robert Joseph DeRosa, testified that, if they could, they would strip search every newly arrived inmate, regardless
The Supreme Court has instructed us that jailers and corrections officials “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.” Bell, 441 U.S. at 547, 99 S. Ct. at 1878. It has also explained that “judicial deference is accorded not merely because the administrator ordinarily will, as a matter of fact in a particular case, have a better grasp of his domain than the reviewing judge, but also because the operation of our correctional facilities is peculiarly the province of the Legislative and Executive Branches of our Government, not the Judicial.” Id. at 548, 99 S. Ct. at 1879 (citing Procunier v. Martinez, 416 U.S. 396, 405, 94 S. Ct. 1800, 1807 (1974)). Decisions that carve out misdemeanor arrestees at county facilities for special treatment do not afford those who run detention facilities the “wide-ranging deference” the Supreme Court has mandated. The courts issuing those decisions have also failed to explain why misdemeanor arrestees in a county detention facility are entitled to more favorable
For at least eight decades the Supreme Court has instructed us, time and again, over and over, that the denial of certiorari does not in any way or to any extent reflect or imply any view on the merits. See, e.g., United States v. Carver, 260 U.S. 482, 490, 43 S.Ct. 181, 182 (1923) (“The denial of a writ of certiorari imports no expression of opinion upon the merits of the case, as the bar has been told many times.“); House v. Mayo, 324 U.S. 42, 48, 65 S.Ct. 517, 521 (1945) (“[A]s we have often said, a denial of certiorari by this Court imports no expression of opinion upon the merits of a case.“), overruled on other grounds by Hohn v. United States, 524 U.S. 236, 118 S.Ct. 1969 (1998); Maryland v. Baltimore Radio Show, 338 U.S. 912, 919, 70 S.Ct. 252, 255 (1950) (Frankfurter, J., opinion respecting the denial of certiorari) (“Inasmuch, therefore, as all that a denial of a petition for a writ of certiorari means is that fewer than four members of the Court thought it should be granted, this Court has rigorously insisted that such a denial carries with it no implication whatever regarding the Court‘s views on the merits of a case which it has declined to review. The Court has said this again and again; again and again the admonition has to be repeated.“); Hughes Tool Co. v. Trans World Airlines, Inc., 409 U.S. 363, 365 n.1, 93 S.Ct. 647, 650 n.1 (1973) (reiterating “the well-settled view that denial of certiorari imparts no implication or inference concerning the Court‘s view of the merits.“); Teague v. Lane, 489 U.S. 288, 296, 109 S.Ct. 1060, 1067–68 (1989) (“As we have often stated, the denial of a writ of certiorari imports no expression of opinion upon the merits of the case. The variety of considerations that underlie denials of the writ counsels against according denials of certiorari any precedential value.“) (citations, marks, and brackets omitted); Evans v. Stephens, 544 U.S. 942, 942, 125 S.Ct. 2244, 2244 (2005) (Stevens, J., opinion respecting the denial of certiorari) (“On several occasions in the past, I have found it appropriate to emphasize the fact that a denial of certiorari is not a ruling on the merits of any issue raised by the petition.“).
Because the denial of certiorari implies no view of the merits, the denial or vacation of a stay that was entered to permit consideration of a certiorari petition logically cannot imply any view of the merits either. We have previously held exactly that at least twice. Ford v. Strickland, 734 F.2d 538, 542 (11th Cir. 1984) (reiterating that the Supreme Court‘s “denial of a stay pending filing and disposition of a writ of certiorari imports no more than a decision to deny certiorari, which does not express any views on the merits of the claims presented.“) (citation and internal marks omitted); Ritter v. Smith, 726 F.2d 1505, 1511 (11th Cir. 1984) (holding that the Supreme Court‘s vacation of a stay, like its denial of a stay, pending certiorari “imports no more than a decision to deny certiorari, which does not express any views on the merits of the claims presented,” and that is true even when it was done in a co-defendant‘s case).
D.
The strip searches of the five plaintiffs before us did not include body cavity inspections. Indeed, the full body visual searches performed on them are exactly what even the district court in Bell grudgingly recognized would be reasonable.6
Of course, an inmate‘s initial entry into a detention facility might be viewed as coming after one big and prolonged contact visit with the outside world. There is no denying that arrestees entering a detention facility usually have had plenty of contact with outsiders, most having been outsiders themselves until they were
The factual premise of this argument is unsupportable. Not everyone who is arrested is surprised, seized, and slapped into handcuffs without a moment‘s notice. Some people surrender when they are notified that a warrant for them is outstanding. Those who do not turn themselves in often have notice that officers are coming to arrest them. Even those in a vehicle who are pulled over and arrested may have time to hide items on their person before the officer reaches the car door. Then there are those who deliberately get themselves arrested. Demonstrators or protestors engaged in civil disobedience are one example. Another example, as we mentioned earlier, is gang members who get themselves arrested just so they can smuggle in contraband. They have all the time they need to plan their arrests and conceal items on their persons.
The point is that there are plenty of situations where arrestees would have had at least as much opportunity to conceal contraband as would inmates on a contact visit, which is the situation Bell involved. See Wolfish, 439 F. Supp. at 147 (“[I]nmates and their visitors are in full view during the [contact] visits and
In conclusion, assuming that arrestees being booked into a jail or detention facility retain some Fourth Amendment rights, see Bell, 441 U.S. at 558, 99 S. Ct. at 1884,7 those rights are not violated by a policy or practice of strip searching each one of them as part of the booking process, provided that the searches are no more intrusive on privacy interests than those upheld in the Bell case. We also assume, of course, that the searches are not conducted in an abusive manner. Because the part of our Wilson decision finding a constitutional violation under the facts of that case, Wilson, 251 F.3d at 1343, is inconsistent with our reasoning here, we overrule it. We also disavow any dicta to the same effect as the Wilson decision. See, e.g., Skurstenis, 236 F.2d at 682.
III.
Insofar as the district court dismissed the
I do not write in a complaining spirit. I unhesitatingly concur in the Court‘s judgment and in almost all of today‘s Court opinion. I write separately because I think it is jurisprudentially unsound to look at a Justice‘s dissenting opinion to determine what the Supreme Court has decided in a case.
To the degree that our Court today seems to make some verifying use—I think unnecessarily—of this approach, I cannot join it.
I believe the majority misreads Bell as justifying a balancing test that is satisfied by the mere fact that the strip searches take place in jails. The complaint alleges the automatic strip-searching, in a group, of arrestees charged with petty misdemeanors when there is no cause whatsoever to suspect the individuals of concealing contraband. No justification for these invasive searches is alleged and there are no other facts before us at this juncture to permit upholding these searches under the Bell balancing test. Under the longstanding, widely-held reading of Bell, with which I agree, the plaintiffs have stated a valid constitutional claim for a violation of the
A. Applying the Bell Balancing Test to the Complaint
Like the majority, I recognize and appreciate the deference due to jail administrators as they fulfill their charge of ensuring security in jails, not only for the jail officials but also for the inmates. See Bell v. Wolfish, 441 U.S. 520, 547–48 (1979). At the same time, “convicted prisoners do not forfeit all constitutional protections by reason of their conviction and confinement in prison.” Id. at 545. This principle applies with at least as much force to individuals detained prior to their trial on petty misdemeanor charges such as failing to pay child support, driving without a license, or trespassing. See id. These protections,
I recognize that even these rights can be circumscribed given adequate cause. The question is whether there is adequate cause to permit the intrusive searches of these arrestees. The Supreme Court in Bell instructed the lower courts to answer that question by considering the following four factors: (1) the
For almost thirty years, circuit courts have followed the Bell Court’s instructions and, until today, universally held that reasonable suspicion is necessary to constitutionally justify the types of searches before us. See Wilson v. Jones, 251 F.3d 1340, 1343 (11th Cir. 2001); Swain v. Spinney, 117 F.3d 1, 7 (1st Cir. 1997); Masters v. Crouch, 872 F.2d 1248, 1255 (6th Cir. 1989); Weber v. Dell, 804 F.2d 796, 804 (2d Cir. 1986); Jones v. Edwards, 770 F.2d 739, 741-42 (8th Cir. 1985); Stewart v. Lubbock County, 767 F.2d 153, 156-57 (5th Cir. 1985); Giles v. Ackerman, 746 F.2d 614, 617 (9th Cir. 1984), overruled on other grounds by Hodgers-Durgin v. de la Vina, 199 F.3d 1037, 1040 n.1 (9th Cir. 1999) (en banc); Hill v. Bogans, 735 F.2d 391, 394-95 (10th Cir. 1984); Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1273 (7th Cir. 1983); Logan v. Shealy, 660 F.2d 1007, 1013 (4th Cir. 1981).
The Supreme Court has never found it necessary to contradict the unanimous view of the circuit courts that required reasonable suspicion for strip searches over
Today, the majority reads the balancing test out of Bell and effectively establishes a per se rule permitting automatic strip searches of all detainees,
Nor does the fact that Bell upheld a blanket policy, after a trial, mean that the Supreme Court implicitly rejected a finding that reasonable suspicion is ever necessary to justify strip searches or strip search policies. This is too broad a constitutional principle to derive from an allegedly implicit holding of the Supreme Court. A more reasonable interpretation would be that the Supreme Court did not need to address the issue because reasonable suspicion was present in the
The majority also reads too much into the dissents of Justice Powell and Justice Marshall to support its argument that the Supreme Court implicitly sanctioned strip searches without reasonable suspicion. The reading more consistent with judicial rules of construction is that Justice Powell wanted the Supreme Court to decide more than it was willing to decide, namely, to explicitly articulate a level of cause necessary to justify the searches. See Kennedy v. Los Angeles Police Dep’t, 901 F.2d 702, 715 (9th Cir. 1990) (quoting Bell, 441 U.S. at
In the case before us, the majority purports to apply the Bell balancing test to the complaint. However, the allegations of the complaint do not include any facts that support the majority’s conclusion that justification exists for the strip searches of these appellants. Facts regarding the jail administration’s justification for the policy are simply absent because there is no evidentiary record at this stage. Given this absence, it is no surprise that neither the Supreme Court nor any circuit court has found constitutional this type of strip-search policy on a motion to dismiss.
The majority says that the policy is justified on the basis of generalized security concerns, citing the records of cases that describe contraband problems of specific detention facilities other than the Fulton County Jail. Although generalized security concerns might be relevant in a Bell analysis, simply saying
To adequately weigh the justification for a search against the privacy concerns that Bell recognized, there has be an institution-specific justification for the policy. Should such justification be offered, deference might be due. There is a difference, however, between deference and abdication of our duty to perform the weighing function with which we have been charged. See Kennedy, 901 F.2d at 712 (“When litigants petition the federal courts to review the application of an institutional policy, the courts must proceed cautiously; the Supreme Court has sounded this warning emphatically and with considerable wisdom. Yet, at the same time, we must be equally careful not to abdicate our function as the guardians of the Constitution.“).
These appellees differ significantly from those in Bell, where the strip-searched plaintiffs had advance knowledge of their return to the general jail population after their planned interactions with outsiders. Again, as other circuit courts have recognized, the reasonable need for inspection in the Bell scenario is simply not present after the unplanned arrest of individuals for petty misdemeanors unrelated to contraband. See, e.g., Shain, 273 F.3d at 64; Roberts, 239 F.3d at 111 (“[T]he deterrent rationale for the Bell search is simply less relevant given the essentially unplanned nature of an arrest and subsequent incarceration.“); Giles,
It is simply unreasonable to assume that individuals arrested on misdemeanor charges not giving rise to reasonable suspicion are going about their daily lives carrying contraband in such a way as to be discoverable only by a strip search. More to the point, it is an exaggerated response to strip-search all pretrial misdemeanor detainees on the basis of this speculative concern. Although easier and more convenient to simply subject all detainees to a blanket policy, the indiscriminate strip searches before us “cannot be justified simply on the basis of administrative ease in attending to security considerations.” Roberts, 239 F.3d at 113 (quoting Logan, 660 F.2d at 1013); see also Chapman v. Nichols, 989 F.2d 393, 396 (10th Cir. 1993); see generally Reno v. Flores, 507 U.S. 292, 346 (1993) (Stevens, J., dissenting) (noting “the clear holding of our cases that ‘administrative
Moreover, the current existence of less-intrusive alternatives to strip-searching is instructive in an assessment of the strength of the justification for the strip search policy. Metal detectors would be effective in discovering metallic weapons, discounting—at least, to some degree—the safety rationale. And, in this case, Powell points to the availability of new technology that could detect non-metallic contraband as well. Thus, assuming all else being equal, the search in the instant case is less reasonable than the one in Bell because of the present availability of less intrusive but equally effective means of achieving the important goal of jail safety.
The Bell test also requires courts to examine “the scope of the particular intrusion.” Bell, 441 U.S. at 559. In its balancing, the Bell Court noted the highly intrusive nature of the strip and visual body-cavity searches. Id. at 560 (“We do
Turning to the remaining “manner” and “place” prongs of the Bell balancing test, I note that the strip searches in this case took place in rooms of 30 to 40 people as a matter of course.
B. The Detainees in the Other Groups Were Entitled to Immediate Release
Finally, the majority remands the case back to the panel to apply the principles discussed in the opinion to the Alpha Strip Search Class (AL Group) and the Court Return Strip Search Class (CR Group). Members of these groups were entitled to release and could not be legally detained any longer. Powell v. Barrett, 496 F.3d 1288, 1314 (11th Cir. 2007), vacated, No. 05-16734 (11th Cir. Feb. 1, 2008) (recognizing “the privacy interests of the AL and CR Group Plaintiffs are the same, or arguably greater than, those of arrestees because they are entitled to release and the basis for their detention at the Jail no longer exists“); see also Cannon v. Macon County, 1 F.3d 1558, 1563 (11th Cir. 1993). These individuals