San Francisco County Jail’s Blanket Strip Search Policy Is Reasonable, Ninth Circuit Says
An en banc panel of the Ninth Circuit held today that San Francisco County Jail’s blanket strip search policy is reasonable under the Fourth Amendment — overruling earlier Ninth Circuit precedent that required individualized reasonable suspicion for jailhouse strip searches. The opinion is worth reading in full, for it comes complete with a provocative, though somewhat digressive concurrence by Chief Judge Alex Kozinski (sampler: “I’m convinced that airport searches would be far more intrusive if upper and middle-class Americans were exempt”) and a vigorous dissent by Judge Thomas, co-signed by Judges Wardlaw, Berzon, and Rawlinson, opening with a litany of the plaintiffs’ allegations. Litigators’ tip: When challenging an intrusive search policy under the Fourth Amendment, it’s always helpful if one of your plaintiffs is a Catholic nun:
Mary Bull was arrested at a political protest for pouring red dye mixed with corn syrup on the ground. At the police station, according to her testimony, she was pushed to the floor and her clothes forcibly removed. Her face was smashed against the concrete cell floor while jailors performed a body cavity search. She was left naked in the cell for eleven hours, then subjected to a second body cavity search. After another twelve hours in the jail, she was released on her own recognizance. She was never charged with a crime.
Charli Johnson was arrested for operating a motor vehicle with a suspended license. She alleges she was forcibly strip searched by male officers in a hallway, and that she was kept in a cold room, naked for twelve hours with male officers regularly viewing her. No contraband was found. She was released the next day. No charges were ever filed.
Sister Bernie Galvin, a Catholic nun and a member of the Sisters of Divine Providence, was arrested at an anti-war demonstration for trespassing. She was strip searched at the jail. No contraband was found.
Michael Marron was arrested for alleged credit card fraud at the Hotel Nikko, strip searched, and allegedly beaten and left naked in a cell for over ten hours. No contraband was found. All charges were eventually dismissed.
Laura Timbrook, who was arrested for bouncing small checks, was body cavity searched twice. No contraband was found. Deborah Flick alleges she was arrested for public intoxication, forcibly strip searched and left naked and bleeding in a cell overnight. Salome Mangosing, arrested for public drunkenness, was strip searched and forced to remain naked for twelve hours. Again, no contraband was found. Leigh Fleming was arrested for disturbing the peace. She was body cavity searched and confined naked in a cold room for five hours. No contraband was found, and she was never charged with a crime.
(Bull v. San Francisco, No. 05-17080, 9th Cir. en banc, Feb. 9, 2010, pp. 2285-86)
The majority opinion, written by Judge Ikuta, describes these allegations as “worse than irrelevant” because the narrow legal question at issue here is the facial constitutionality of the San Francisco policy. The majority argues that, even if true, these allegations establish a series of violations of the jail’s policy, “which required that searches be conducted in a “professional manner,” and prohibited officers of the opposite sex to be present” (p. 2245). So, the victims of these abuses might still have viable claims against San Francisco for violating the policy — but the policy itself is not unconstitutional.
So, what is the policy, exactly? Under the policy in place at the time of the allegations, every detainee destined for housing in the general population could be strip searched. That is, the policy didn’t apply to those who never made it past the initial holding tank where you’re first taken upon arrest — such as those released quickly on bail, and those who were just arrested because they were intoxicated and were released once they’d sobered up. But everyone actually getting booked into the jail’s housing facility would first be strip searched. Also, note that the policy only authorized a “visual” strip search — no touching.
In a class action lawsuit challenging this policy as a violation of the Fourth Amendment, the district court granted partial summary judgment for the plaintiffs, relying on Ninth Circuit precedent holding that even in a jail setting, strip searches can only be conducted upon individualized reasonable suspicion. Here, the Ninth Circuit reversed those earlier precedents. Relying heavily on Bell v. Wolfish, 441 U.S. 520 (1979), in which the Supreme Court upheld a New York jail’s policy of strip searching inmates after they’d received visitors, the panel held that the blanket strip search policy was a reasonable response to a persistent contraband smuggling problem in San Francisco’s county jails.
Blanket Jailhouse Strip Search Policies: The Current Circuit Split
In reaching this conclusion, the Ninth Circuit overruled two earlier cases in which it held that blanket strip search policies are unconstitutional: 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). For those keeping score at home, as of today, the circuit split on blanket strip searching policies comes down more or less as follows. Last month, I blogged about a similar case making its way up to the Third Circuit.
Blanket strip search policies are unconstitutional under the Fourth Amendment — First, Second,
Fourth, Fifth, Sixth, and Eighth Circuits
Sample cases: Roberts v. Rhode Island, 239 F.3d 107 (1st Cir. 2001); Shain v. Ellison, 273 F.3d 56, 64 (2d Cir. 2001); Masters v. Crouch, 872 F.2d 1248, 1255 (6th Cir. 1989).
Blanket strip search policies are reasonable under the Fourth Amendment — Ninth and Eleventh Circuits
Sample case: Powell v. Barrett, 541 F.3d 1298 (11th Cir. 2008) (en banc)
Something in between? — Tenth Circuit
Archuleta v. Wagner, 523 F.3d 1278 (10th Cir. 2008) (upholding searches of arrestees intermingled with general population of a corrections facility, but not those awaiting bail)