Date: 08-31-2008

Case Style: Mary Bull, et al. v. City and County of San Francisco, et al.

Case Number: 05-17080

Judge: Sidney R. Thomas

Court: United States Court of Appeals for the Ninth Circuit on appeal from the Northern District of California, San Francisco County

Plaintiff's Attorney: Mark Merin and Cathleen A. Williams, Law Office of Mark E. Merin (argued), Sacramento, California; and Andrew Schwartz (argued) and Thomas A. Seaton, Casper, Meadows, Schwartz & Cook, Walnut Creek, California for the appellees.

Defendant's Attorney: Dennis J. Herrera, City Attorney; Joanne Hoeper, Chief Trial Attorney; and David B. Newdorf (argued) and Robert A. Bonta, City Attorneys, for the appellants.

Description: In this interlocutory appeal, we consider whether a blanket policy of strip searching without reasonable suspicion of all individuals arrested and classified for housing in the general jail population violates the arrestees’ clearly established constitutional rights. Under the circumstances presented by this case, we conclude that it does, and affirm the order of the district court denying qualified immunity in this § 1983 class action suit.

I

The San Francisco Sheriff’s Department (“Department”) oversees an urban jail system, consisting of six county jails, which books and processes tens of thousands of persons a year. All new arrestees are brought to County Jail No. 9 where they are booked and a determination is made as to whether the arrestee will be released or housed pending arraignment. County Jail No. 9 is a temporary detention facility and does not contain accommodations for extended stays. Thus, all detainees who are classified for housing are transferred to another one of San Francisco’s jails within 24 hours. San Francisco’s jails have faced a continuing problem with smuggled contraband, including drugs and weapons. Searches within the general jail population have uncovered hundreds of items of contraband. Many items of contraband have been discovered during strip searches conducted on new arrestees at County Jail No. 9. Defendants produced evidence of 49 discoveries of drug-related contraband and six weapon discoveries between April 2000 and January 2004.

Until January 21 2004, San Francisco had a policy1 of strip searching all arrestees entering County Jail No. 9 who fell into multiple particular categories.2 The strip search involved identified for placement in a safety cell,3 or if the detainee would not be released within twenty-four hours and therefore would need to be housed in another jail facility. In other words, the Department followed a blanket policy of strip searching all individuals who were classified for housing in the general jail population, regardless of the crime for which they were charged.

On April 23, 2003, Mary Bull and a class of similarlysituated plaintiffs brought a § 1983 suit against Defendants alleging causes of action under the Fourth and Fourteenth Amendments of the U.S. Constitution, and several provisions of state law. In an order issued June 10, 2004, the district court granted Bull’s motion to certify a class under Rule 23(b)(3). The class was defined as:

All persons who, during the applicable period of limitations, and continuing to date, were arrested on any charge not involving weapons, controlled substances, or a charge of violence, and not involving a violation of parole or a violation of probation (where consent to search is a condition of such probation), and who were subjected to a blanket visual body cavity strip search by defendants before arraignment at a San Francisco County jail facility without any individualized reasonable suspicion that they were concealing contraband. This class also includes 1) all arrestees who were subjected to subsequent blanket strip search(es) before arraignment after the initial strip search, without any reasonable individualized suspicion that they had subsequently acquired and hidden contraband on their persons; and 2) all persons who, prior to arraignment, were subjected to blanket visual body cavity search(es) incident to 3Safety cells are single-occupant, padded cells used to house inmates who were considered a danger to themselves or others, to be behaving in a “bizarre” manner, or to be “gravely disabled.” placement in a “safety cell” at any of the San Francisco County jails.

The class was further limited by the district court’s February 23, 2006 order, which held that San Francisco’s policy of strip searching arrestees on the basis of their criminal history was lawful.4 The persons in the class as it stands before this Court are thus all arrestees who were strip searched prior to arraignment solely because they were classified for housing in the general jail population prior to their arraignment.

The parties filed cross-motions for summary judgment. On September 22, 2005 the district court granted in part and denied in part both motions. In relevant part, the district court held that Sheriff Hennessey was not entitled to qualified immunity with respect to San Francisco’s blanket policy of strip searching all individuals classified for housing in the general jail population. Defendants now appeal the district court’s denial of qualified immunity for Sheriff Hennessey.5

II

We review de novo a district court’s decision to grant summary judgment on the ground of qualified immunity. Motley v. Parks, 383 F.3d 1058, 1062 (9th Cir. 2004). In reviewing a district court’s grant of summary judgment we must determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 922 (9th Cir. 2004).

To determine whether a government employee is entitled to qualified immunity, we use a two-part test. Saucier v. Katz, 533 U.S. 194, 201 (2001). First, we must determine whether, viewing the facts in the light most favorable to the plaintiff, the government employees violated the plaintiff’s constitutional rights. Id. Then, if we determine that a constitutional violation has occurred, we must determine whether the rights were clearly established at the time of the violation. Id.

A

We turn first to the question of whether a policy of strip searching arrestees solely because they are classified for housing in the general population, in the absence of any reasonable suspicion, violates the arrestees’ constitutional rights. Following a long history of precedent, we conclude that it clearly does.

[1] In the first case to raise the question, Giles v. Ackerman, 746 F.2d 614 (9th Cir. 1984) (per curiam), overruled on other grounds by Hodgers-Durgin v. de la Vina, 199 F.3d 1037, 1040 n.1 (9th Cir. 1999) (en banc), we announced the governing standard that “arrestees for minor offenses may be subjected to a strip search only if jail officials have a reasonable suspicion that the particular arrestee is carrying or concealing contraband or suffering from a communicable disease.” Id. at 615.6

[2] We have revisited pre-arraignment searches several times, on each occasion reaffirming the individualized reasonable suspicion standard laid out in Giles. In Ward v. County of San Diego, 791 F.2d 1329 (9th Cir. 1986), we found no qualified immunity for a San Diego County Sheriff who had enacted a blanket strip search policy which resulted in the visual body cavity search of a misdemeanor arrestee prior to a determination regarding the arrestee’s eligibility for an own recognizance release. In Thompson v. City of Los Angeles, 885 F.2d 1439 (9th Cir. 1989), we held that the strip search of a person arrested for felony grand theft auto was valid because the charge was “sufficiently associated with violence to justify a visual strip search.” Id. at 1447. The next year, however, we held unconstitutional the City of Los Angeles’s blanket strip search policy which subjected all felony arrestees to a visual body cavity search. Kennedy v. Los Angeles Police Dept., 901 F.2d 702, 714 (9th Cir. 1990), abrogated on other grounds by Hunter v. Bryant, 502 U.S. 224 (1991) (per curiam). In Kennedy, we emphasized that while a charge of a violent offense, such as the charge in Thompson, may justify a strip search, the mere fact of a felony charge bears no reasonable relationship to institutional security concerns. Id. at 713 (“[T]he enacted policy, if it is to be constitutional, must be ‘reasonably related’ to the penal institution’s interest in maintaining security.”). In short, under controlling circuit precedent, a blanket strip search of pre-arraignment arrestees, no matter how minor the offense and in absence of reasonable suspicion, violates the Constitution.

Defendants argue that San Francisco’s policy is constitutional under Bell v. Wolfish, 441 U.S. 520 (1979), in which the Supreme Court addressed a strip search policy applied to prisoners and pre-trial detainees. However, Bell pre-dated the pre-arraignment cases in our circuit, which carefully considered and distinguished Bell.

[3] In Bell the Supreme Court held that strip and visual body cavity searches may, in certain instances, be conducted on prisoners and pretrial detainees in institutional settings with less than probable cause. 441 U.S. at 560. In determining whether an institutional search policy is reasonable under the Fourth Amendment, a court must balance “the need for the particular search against the invasion of personal rights that the search entails.” Id. at 559. In each case, a court “must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.” Id. Giles, Ward, Thompson, and Kennedy were each decided subsequent to, and with the benefit of, the Supreme Court’s holding in Bell.

Defendants also argue that San Francisco’s strip search policy was justified by the fact that the arrestees were to be transferred for housing in the general jail population, noting that the introduction of contraband to the general population raises serious security concerns. However, we have previously made clear that although the fact that an arrestee is to be “placed into contact with the general jail population” is one important factor among many that may be considered in gauging the reasonableness of a search, “such a factor by itself cannot justify a strip search.” Thompson, 885 F.2d at 1447; see also Giles, 746 F.2d at 618-19 (rejecting the notion that placement in the general jail population was enough to validate a strip search because “intermingling is both limited and avoidable”).

[4] “The intrusiveness of a body-cavity search cannot be overstated.” Kennedy, 901 F.2d at 711. To justify such a “dehumanizing and humiliating,” id., invasion of privacy, there must be some reasonable relationship between the criteria used to identify the specific individuals eligible for a strip search and the interest in preventing the introduction of contraband. See Giles, 746 F.2d at 618 (reasonableness requirement under the Fourth Amendment requires that the strip search bear some “discernible relationship to security needs” (quoting Logan v. Shealy, 660 F.2d 1007, 1013 (4th Cir. 1981))); see also Kennedy, 901 F.2d at 713 (stressing the importance of documentation supporting the assertion that arrestees within the strip search category smuggle contraband into the jail in greater frequency than arrestees outside of the category). We have consistently noted that factors to be considered in determining whether reasonable suspicion exists to warrant a strip search include “the nature of the offense, the arrestee’s appearance and conduct, and the prior arrest record.” Giles, 746 F.2d at 617; see also Thompson, 885 F.2d at 1446.

[5] The challenged portion of San Francisco’s policy did not consider such individualized factors and required strip searches of arrestees based solely on their classification for housing in the general population. Defendants nonetheless argue that the present case is distinguishable from our long line of precedent because they have produced substantial documentary evidence of the significant problem of contraband in the general population of San Francisco jails. The district court carefully examined the tendered evidence and found that Defendants proffered no evidence demonstrating smuggling by individuals who would qualify for membership in the plaintiff class. Defendants argue that the record “established that many detainees charged with minor offenses tried to smuggle contraband into jail.” However, both Plaintiffs and the district court correctly point out that of the numerous incidents of discovered contraband documented by Defendants and presented to the district court, none clearly documents a single uncontroverted instance of a class member smuggling contraband into a San Francisco facility.

Several of the documented searches were based on permissible factors and the documentation for the remaining inci- dents does not contain any evidence relating either to the reason for the search or the arrestee’s eligibility for class membership. To review, the class certified by the district court includes arrestees who were arrested for an offense not involving drugs, weapons, violence, or a violation of parole or probation; who did not have a criminal history involving drugs, weapons, or violence; and whose behavior did not create individualized suspicion warranting a search. The two incidents cited by the Defendants illustrate the deficiency of their documentation. First, Defendants point to an incident on November 19, 2003 in which a man who was arrested on a warrant for maintaining a public nuisance was found smuggling a plastic bag of suspected cocaine powder into the jail. The documentation of this incident in the record consists of an Incident Report and a Field Arrest Card. Neither document indicates whether the arrestee had a criminal history that would legitimize the search or whether there was any other individualized suspicion that would legitimize the search. Without more information, it is impossible to determine whether this particular arrestee would be eligible for class membership. Second, Defendants contend that a strip search of an arrestee, who was not charged with drugs, weapons or violence offenses, uncovered an 8-inch pair of scissors. The only documentation in the record of this incident is a Contraband Form. The Contraband Form does not indicate the charges on which this individual was arrested, the individual’s criminal history, or whether there was any individualized suspicion that prompted the search. It is impossible to tell from the record whether or not this individual is in fact an eligible member of the class. In short, Defendants’ claim that they have documented instances of eligible class members engaging in smuggling contraband is not credible and not supported by the record.7

The incidents cited by the dissent similarly fail to demonstrate even a single occurrence of a strip search uncovering contraband from an eligible class member. Of the twelve incidents cited by the dissent, two did not even involve strip searches,8 and three others involved arrestees who were demonstrably ineligible for class membership because they were arrested on parole violation or drug charges. The documentation for the remaining seven incidents fails to include any information regarding the arrestees’ criminal history or whether the arrestees did anything to create individualized suspicion warranting a strip search.

[6] As the district court concluded, the reports the defendant produced regarding the discovery of contraband during strip searches consistently fail to provide any indication of the charges of the searched individuals or the reason why they were searched. Absent such evidence, it is impossible for us to know whether or not eligible class members are contributing at all—much less in any significant way—to the contraband problem in the San Francisco jails. As such, we cannot conclude that there is any reasonable relationship between the criteria triggering a search (classification for housing) and the interest in conducting the search (eliminating the introduction of contraband).

[7] In sum, controlling precedent holds that blanket strip searches of pre-arraignment detainees regardless of severity of charge and without reasonable suspicion are unconstitutional. The district court properly concluded that the evidence tendered by Defendants was insufficient to distinguish this case from our long line of precedent based on case-specific circumstances.

B

We turn next to the question of whether the right violated by Defendants was clearly established at the time of the search. See Saucier, 533 U.S. at 201. “The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Id. at 202. In other words, the inquiry is whether a reasonable person could have believed his actions lawful at the time they were undertaken. Anderson v. Creighton, 483 U.S. 635, 646 (1987).

We have made clear that the responsibility for keeping abreast of constitutional developments in criminal law falls squarely on the shoulders of law enforcement officials. “Given the power of such officials over our liberty, and sometimes even over our lives, this placement of responsibility is entirely proper. Law enforcement officials must be cognizant not only of how far their authority extends, but also of the point at which their authority ends.” Ward, 791 F.2d at 1332. [8] San Francisco’s challenged strip search policy was in place until January 2004. Well before that time, as we have discussed, it was clearly established in this Circuit that conducting strip searches of pre-arraignment arrestees based solely on the fact that they were assigned for transfer to the general population was unconstitutional. We have consistently required consideration of individual factors, such as arrest charges, criminal history, and suspicious behavior, to justify strip searches of pre-arraignment arrestees. Indeed, in an unbroken line of precedent tracing back to 1984, we have affirmed and reaffirmed the fundamental holding of Giles that a strip search of a pre-arraignment detainee must be supported by reasonable individualized suspicion. It was also abundantly clear after Thompson that placement in the general jail population “by itself cannot justify a strip search.” Thompson, 885 F.2d at 1447.

[9] Moreover, we have explicitly stated several times that it has been clearly established that strip search policies similar to San Francisco’s are unconstitutional. In Ward, we concluded that “the law was sufficiently clear in early 1981 so as to expose a public official who unreasonably authorized blanket strip searches of minor offense arrestees to civil liability under 42 U.S.C. § 1983.” 791 F.2d at 1332 (emphasis added). Although San Francisco’s policy included arrestees charged with more serious offenses than those at issue in Ward, the policy by definition also applied to minor offense arrestees, such as those at issue in Ward. San Francisco’s policy required strip searches of all arrestees who were classified for transfer to the general population. Arrestees are “classified” if they cannot post bail. Because some minor offenses do require bail, any minor offense arrestee who was required to post bail but was unable (or unable to post soon enough) would be strip searched under San Francisco’s policy. As Ward points out, we have long since established that strip searches of such individuals, in absence of individualized suspicion, is unconstitutional.9

District courts in this circuit have also consistently recognized that the law in this circuit has clearly established that strip search policies like the one challenged here are unconstitutional. 10 See, e.g., Craft v. County of San Bernardino, 468 F.Supp.2d 1172, 1177 (C.D. Cal. 2006) (“At the outset, it is worth noting that the Ninth Circuit has clearly recognized that arrestees’ intermingling with other detained persons can impact upon whether a given strip and/or visual body cavity search is constitutionally permissible, but it cannot, by itself, provide justification for such a search . . .”) (citing Thompson, 885 at 1447); Wong v. Beebe, 2002 WL 31548486, *15 (D. Or. 2002)11 (“[W]ell before [arrestee’s] strip and cavity search, it was clear that blanket strip search policies are unconstitutional if justified by nothing more than an arrest on suspicion of the commission of a felony or a planned confinement in the general jail population.”) (citing Kennedy, 901 F.2d at 713-15; Thompson, 885 F.2d at 1446- 47); Silvia v. Clackamas County, 2001 WL 34039482, *4 (D. Or. 2001) (“Well before [arrestee’s] strip and cavity search, it was clear that blanket strip search policies justified by nothing more than arrest on suspicion of the commission of a felony or a planned confinement in the general jail population are unconstitutional.”) (citing Fuller v. M.G. Jewelry, 950 F.2d 1437, 1445-46 (9th Cir. 1991); Kennedy, 901 F.2d at 713-15; Thompson, 885 F.2d at 1446-47).

Defendants argue that the large amount of documentary evidence they have produced shows that the problem of smuggled contraband is particularly acute in the San Francisco jails and thus distinguishes this case from others. Further, defendants argue that because no other case has confronted such a well-documented problem, even if San Francisco’s policy was unconstitutional, the law was not clearly established. In deciding whether the law was clearly established, “[i]t is not necessary that the alleged acts have been previously held unconstitutional, as long as the unlawfulness [of the defendants’ actions] was apparent in light of preexisting law.” Malik v. Brown, 71 F.3d 724, 727 (9th Cir. 1995). “Closely analogous preexisting case law is not required to show that a right was clearly established.” White v. Lee, 227 F.3d 1214, 1238 (9th Cir. 2000). The specific facts of previous cases need not be materially or fundamentally similar to the situation in question; rather, the salient question is whether the state of the law at the time gives officials fair warning that their conduct is unconstitutional. Hope v. Pelzer, 536 U.S. 730, 742 (2002).

[10] We have made it clear that in the Ninth Circuit strip searches of pre-arraignment arrestees are unconstitutional in the absence of reasonable individualized suspicion and that reasonable suspicion requires consideration of factors such as the nature of the offense, the arrestee’s appearance and conduct, and the arrestee’s criminal history. See, e.g., Act Up!, 988 F.2d at 871-72; Edgerly, 495 F.3d at 657. Moreover, we have made it clear that placement in the general jail population “by itself cannot justify a strip search.” Thompson, 885 F.2d at 1447. San Francisco’s policy was to strip search prearraignment arrestees no matter how trivial the offense charged and without reasonable suspicion solely because they were to be classified for housing in the general population.

That such a blanket policy is a clear violation of the Constitution is clearly established by our precedent.

[11] The fact that San Francisco had documented a significant problem of contraband smuggling does not muddy the clarity of the law. The evidence Defendants produced to the district court shows only that contraband smuggling was a significant problem in San Francisco jails; it does not demonstrate that persons eligible for inclusion in the class in this case contributed significantly, or even at all, to that problem.12 Therefore, San Franciso’s policy, and its justifications for that policy, are not different enough from policies that we have held unconstitutional, to suggest that the rights violated by San Francisco’s policy were not clearly established. For these reasons, Sheriff Hennessey is not entitled to qualified immunity.

III

In conclusion we emphasize that our holding in no way prevents correctional facilities from strip searching inmates under permissible circumstances. Indeed, we do not today even discuss the rights of those who are incarcerated after having been convicted of a criminal offense. This case concerns only pre-trial arrestees. Moreover, strip searches of arrestees on the basis of their arrest for an offense involving drugs, weapons, violence, or a violation of probation or parole; criminal history involving drugs, weapons or violence as specified by the district court; or another factor creating individualized suspicion are not affected by our holding, as these arrestees are excluded from the certified class. However, a policy of strip searching arrestees based solely on their classification for housing in the general population violates the arrestees’ clearly established constitutional rights, and we thus affirm the district court’s denial of qualified immunity.

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http://www.ca9.uscourts.gov/ca9/newopinions.nsf /3ACBF828ECC89F95882574AC007D8A73/$file/0517080.pdf?openelement

Outcome: AFFIRMED.

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