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San Francisco Blanket Jail Strip Search Policy Upheld in Ninth Circuit En Banc Ruling

In a class action § 1983 suit brought by pre-arraignment jail detainees, a divided Ninth Circuit panel held that San Francisco’s blanket policy of strip searching all arrestees classified for the jail’s general population, in the absence of individualized reasonable suspicion, violated the arrestees’ clearly established constitutional rights and that the defendants were therefore not entitled to qualified immunity. The panel decision was later reversed by the appellate court sitting en banc.

In 2003, Mary Bull and a class of similarly-situated plaintiffs filed suit against the City and County of San Francisco and various officials, alleging that the San Francisco County Sheriff’s Department’s blanket strip search policy violated their rights under the Fourth and Fourteenth Amendments. After the parties filed cross-motions for summary judgment, in 2005 the district court held that Sheriff Michael Hennessey was not entitled to qualified immunity. The defendants then filed an interlocutory appeal.

Determining whether officials are entitled to qualified immunity involves two inquiries: (1) whether, taken in the light most favorable to the party asserting the injury, the facts alleged show the official’s conduct violated a constitutional right; and (2) if so, whether the right was clearly established at the time of the violation. See: Saucier v. Katz, 533 U.S. 194, 201 (2001). The Ninth Circuit adhered to this two-part test. [PLN readers should note that the U.S. Supreme Court has held that courts are free to decide which of the two prongs of the Saucier test should be addressed first in light of the particular circumstances of a case. See: Pearson v. Callahan, 129 S.Ct. 808, 818 (2009)].

Following a long line of circuit precedent, Circuit Judge Thomas, joined by Judge Ikuta (who filed a separate concurring opinion that expressed “grave concern” over the potential consequences of the majority’s disposition of the case), held there must be some reasonable relationship between the strip search criteria and the government’s interest in preventing the introduction of contraband into the jail. The appellate court conceded that the defendants had produced substantial evidence of a significant contraband problem, but determined that such documentation failed to shed any light regarding the charges faced by the searched arrestees, their criminal histories or the reasons for their being strip searched – factors which might have provided evidence of the reasonable suspicion necessary to justify the searches.

Absent such evidence, the majority held, San Francisco’s blanket strip search policy violated the arrestees’ clearly established constitutional rights. In so ruling, the Ninth Circuit panel stressed that its decision applied only to pre-trial arrestees not charged with an offense involving drugs, weapons, violence or a violation of probation or parole, and not having a criminal history involving such offenses – and then only if the arrestee’s appearance or conduct (or some other factor) did not create individualized reasonable suspicion justifying a strip search. See: Bull v. City and County of San Francisco, 539 F.3d 1193 (9th Cir. 2008).

However, upon rehearing en banc, the Ninth Circuit reversed the panel decision on February 9, 2010, finding the defendants were entitled to qualified immunity. The en banc court noted that the question on appeal was the narrow issue of the constitutional challenge to the blanket strip search policy at the jail, not challenges in individual cases in which detainees were strip searched.

The en banc court analyzed the policy under Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), which “held that a mandatory, routine strip search policy applied to prisoners ‘after every contact visit with a person from outside the institution,’ without individualized suspicion, was facially constitutional.”

Applying that standard to the strip searches at issue in this case, the Court of Appeals wrote that “it is apparent that the scope, manner, and justification for San Francisco’s strip search policy was not meaningfully different from the scope, manner, and justification for the strip search policy in Bell.”

Finding that the jail’s policy required the strip searches to be conducted “in a professional manner and in a place that afforded privacy,” the appellate court also noted that an extensive record in the case had established a “pervasive and serious problem with contraband” at the jail. Therefore, as the strip search “circumstances before us are not meaningfully distinguishable from those presented in Bell,” the en banc Ninth Circuit found that the balancing of personal privacy rights of arrestees versus the security needs of the jail tipped in favor of the jail.

An examination of the strip search policy under the four-prong test of Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987) resulted in the same conclusion, as “the Turner factors require us to give more deference to detention officials’ determinations than does the balancing test in Bell.”

In finding that the strip searches were constitutional, the Ninth Circuit overruled its prior decisions in Thompson v. City of Los Angeles, 885 F.2d 1439 (9th Cir.1989) and Giles v. Ackerman, 746 F.2d 614 (9th Cir.1984) (per curiam), because “they failed to give due weight to the principles emphasized in Bell and reiterated in Turner.” The appellate court differentiated its holding in this case on the basis that the arrestees were being placed in the jail’s general population, and did not “disturb our prior opinions considering searches of arrestees who were not classified for housing in the general jail or prison population.”

In reversing the initial panel decision, the Ninth Circuit departed from other circuit courts that have considered the constitutionality of blanket strip searches of arrestees absent reasonable suspicion. The only other exceptions are recent rulings from the Eleventh and Third Circuits in Powell v. Barrett, 541 F.3d 1298 (11th Cir.2008) (en banc) and Florence v. Board of Chosen Freeholders of the County of Burlington, 621 F.3d 296 (3d Cir. 2010), cert. granted. [see article in this issue of PLN].

Other than the en banc ruling in this case and the decisions in Florence and Powell, other circuit courts have uniformly held that blanket strip searches of persons arrested for misdemeanor or non-indictable offenses are constitutionally impermissible where there is no individualized reasonable suspicion that they are in possession of weapons, drugs or other contraband.

A forceful dissent by four of the Ninth Circuit judges in the en banc decision described the degrading and abusive strip searches endured by some of the plaintiffs in this case, and argued that the jail’s strip search policy was unconstitutional. The dissent concluded that “Invading the rights of everyone, regardless of whether we have reason to suspect them or not, should give no one illusory comfort that we are providing justice for all.” See: Bull v. City and County of San Francisco, 595 F.3d 964 (9th Cir. 2010) (en banc).

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Bull v. City and County of San Francisco

Bull v. City and County of San Francisco