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Third Circuit Holds Blanket Policy of Strip Searching Arrestees, Absent Reasonable Suspicion, is Constitutional; Cert Granted

In a class-action suit brought under 42 U.S.C. § 1983, a federal district court in New Jersey held that a blanket policy of strip searching arrestees charged with non-indictable offenses, absent reasonable suspicion that they were concealing contraband, drugs or weapons, violated the arrestees’ clearly established constitutional right to be free of unreasonable searches.

While granting summary judgment to the plaintiffs on the legal issue of the constitutionality of the strip searches, the court denied their request for preliminary injunctive relief, finding that, because they had not shown that they were likely to be subjected to strip searches in the future, they lacked the requisite standing. Significantly, however, the district court denied the defendants’ requests for Eleventh Amendment and qualified immunity, leaving the door open for damages.

In a thorough and well-reasoned opinion, the district court began its analysis by asking whether the intake procedures at the Burlington and Essex County jails – requiring all arrestees to completely disrobe, to subject their nude bodies to visual inspection, and then to take a supervised shower together with other arrestees – were sufficiently intrusive to constitute “searches” for purposes of the Fourth Amendment. Despite the semantic efforts of the defendants, some of whom tried to draw a distinction between a “visual observation” and a “strip search,” the court was not fooled.

On the more challenging question of whether a search of non-indictable arrestees is reasonable when performed pursuant to a blanket policy without reasonable suspicion, the court began by considering the landmark case of Bell v. Wolfish, 441 U.S. 521 (1979), in which the Supreme Court outlined a four-pronged balancing test for lower courts to use to gauge reasonableness. The district court noted that, in the 30 years since Bell, the vast majority of courts had concluded that reasonable suspicion was necessary before a strip search could be conducted, at least in regard to arrestees accused of misdemeanor-type (as opposed to felony) offenses.

The only clear break from that consensus occurred in 2008 when the Eleventh Circuit, sitting en banc, overruled its own precedent and brazenly declared that its sister circuits were “wrong.” See: Powell v. Barrett, 541 F.3d 1298, 1310 (11th Cir. 2008) (en banc).
The district court was not convinced by the ruling in Powell, and held on February 4, 2009 that the blanket strip searches at the New Jersey jails were unconstitutional. See: Florence v. Board of Chosen Freeholders of the County of Burlington, 595 F.Supp.2d 492 (D. NJ 2009).

The defendants moved to amend the court’s summary judgment order by certifying it as final, which would allow them to immediately appeal. The district court granted the motion, finding the order “involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from that Order may materially advance the ultimate termination of the litigation.” See: Florence v. Board of Chosen Freeholders of the County of Burlington, 657 F.Supp.2d 504 (D. NJ 2009).

The defendants then appealed, and on September 21, 2010 the Third Circuit held, in a departure from most other circuit courts that have considered the issue, that the jails’ policy of conducting blanket strip searches of arrestees was reasonable. The appellate court further held the jails were not required to provide evidence of attempted smuggling or discovered contraband as justification for the policy, and their decision to conduct strip searches, rather than use body scanning devices, also was reasonable.

The Third Circuit noted that since the ruling in Powell, the en banc Ninth Circuit Court of Appeals had “also reversed its prior precedent and upheld a blanket policy of strip searching all arrestees before they enter San Francisco’s general jail population,” citing Bull v. City and County of San Francisco, 595 F.3d 964, 975 (9th Cir.2010) (en banc) [see article in this issue of PLN].

The Third Circuit concluded, “In sum, balancing the Jails’ security interests at the time of intake before arrestees enter the general population against the privacy interests of the inmates, we hold that the strip search procedures described by the District Court at [the jails] are reasonable.” Thus, the district court’s grant of summary judgment to the plaintiffs was reversed and the case remanded.

The U.S. Supreme Court granted the plaintiffs’ petition for a writ of certiorari on April 4, 2011, and proceedings in this case have been stayed pending the decision by the high court. PLN will report the outcome. See: Florence v. Board of Chosen Freeholders of the County of Burlington, 621 F.3d 296 (3d Cir. 2010), cert. granted.

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Related legal cases

Florence v. Board of Chosen Freeholders of the County of Burlington

Florence v. Board of Chosen Freeholders of the County of Burlington

Florence v. Board of Chosen Freeholders of the County of Burlington