San Francisco Jails Strip Search Policy Ruled Unconstitutional By Federal Court
by John E. Dannenberg
The U.S. District Court (N.D. Cal.) ruled on motions for summary judgment that the City and County of San Franciscos blanket jail policy of strip-searching all pre-arraignment detainees, regardless of offense or adjudication status, violated the Fourth Amendment rights of those prisoners for whom no specific, pre-ordained reason would necessitate such a bodily intrusion. But because the district court grounded its findings on federal constitutional grounds, state law statutory minimum damages were precluded from the suit. The plaintiff class attorney estimates that 27,000 former prisoners will come under the ambit of the courts ruling; defendants assert the number is closer to 7,000 to 9,000. Either way, millions of dollars of damages may result.
Mary Bull is a frequent ardent protester for liberal social causes, whose aggressive stance has often landed her in jail. Consequently, she has become a plaintiff in numerous lawsuits against California jails where she was arbitrarily strip-searched as a detainee for her non-violent citations or misdemeanor charges. Under representation by Sacramento attorney Mark Merin, Bull has succeeded in class-action lawsuits brought in state court alleging violations of California Penal Code (PC) § 4030, which restricts such searches and mandates a minimum of $1,000 in damages for each violation. (See: Bull v. Blanas, Sacramento Superior Court, Case No. 01A501545 [$15 million settlement]). While she could yet bring suit in state court under § 4030, she proceeded here in federal court where damages are not specified and must be proved to a trier of fact. Merin has other strip-search cases pending in federal court against San Mateo County (Gallagher v. County of San Mateo, U.S.D.C. N.D. Cal., Case No. C 04-448 SBA) and against Marin County.
San Francisco County Sheriff Michael Hennessey changed the jails strip-search policy in 2004 to conform to the standards demanded in the lawsuit. The damage claims are for those persons improperly searched between April 2002 and January 2004. Formerly, all new detainees, whether or not arrested for (or with past arrest histories of) narcotics, weapons or violence, or probation violations, were searched under the blanket policy. Others included those arrested outside San Francisco, in transit to another jail, going into the general jail population, or those being placed in safety cells. The plaintiff class comprises the many arrestees who did not have such prior records or case factors enumerating concerns for dangerousness, but who were arbitrarily strip-searched anyway.
The district court ruled that under the Fourth Amendments reasonableness standard, maintaining safety and security in the jails would not support such indiscriminate strip searches. Rather, individualized suspicion must be ascertained first. Although Sheriff Hennessey was able to demonstrate isolated cases of smuggling of contraband by low-risk arrestees, those rare incidents could not operate so as to swallow the Fourth Amendment. The district court even found that blanket searching of all persons put in safety cells was unconstitutional, because the reason for such placement might well be one not foretelling dangerousness (e.g., medical isolation).
Hennessey moved for summary judgment on grounds of qualified immunity because he alleged he was not on notice of such liability per Saucier v. Katz, 533 U.S. 194, 206 (2001). The court denied the motion, finding that existing precedent (Giles v. Hay, 361 F.3d 1134 (9th Cir. 2004)) was dispositive, except as to the subset of safety cell strip-searches.
Hennesseys final defense, that as Sheriff he was immune from municipal liability established under Monell v. Department of Social Services, 436 U.S. 658 (1978), was rejected because the policy was an official written policy of the City and County of San Francisco, and thus fell squarely under Monell. Accordingly, the court permitted the case to go to trial to determine damages for violation of the plaintiff class Fourth Amendment rights. See: Bull v. City and County of San Francisco, U.S.D.C. (N.D. Cal.) Case No. C 03-01840 (September 2005).
Note: The district court later issued an Amended Memorandum and Order Re: Motions for Summary Judgment, in which it made various revisions. The plaintiffs motion for partial summary judgment was granted in part and denied in part, and Sheriff Hennessey's motion for summary judgment on qualified immunity grounds was granted in part and denied in part. See: Bull v. City and County of San Francisco, U.S.D.C. (N.D. Cal.) Case No. C 03-01840 (Feb. 23, 2006) (2006 WL 449148).
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