In Bull v. City and County of San Francisco, (— F.3d —, 2008 WL 3876757, C.A.9 (Cal.), Aug. 22, 2008), the United States Court of Appeals addressed whether the blanket policy of strip searching those who are arrested and classified for housing in the general jail population violates the arrestees’ constitutional rights. The Court of Appeal held that the policy does violate such arrestees’ constitutional rights.
Facts
The San Francisco Sheriff’s Department oversees six county jails. County Jail No. 9 is where all new arrestees are brought to be booked and where officials determine whether an arrestee will be housed pending arraignment or release. It serves as only a temporary detention facility and cannot accommodate extended stays. If an arrestee is classified for housing, he or she is transferred to another jail within 24 hours. Between April 2000 and January 2004 officials at County Jail No. 9 found 49 drug-related contraband and six weapons during strip searches on new arrestees at the facility.
Prior to January 2004, San Francisco had a policy of strip searching all new arrestees who were charged with or have a criminal history involving violence, weapons or drugs; who were charged with a parole or probation violation; who were entering custody from another jurisdiction or were returning from parole, a residential program, or were delivered from another jail; or, who had been “assigned a custody level and scheduled for custodial housing.” The strip search included an inspection of the naked body, including a search of the breasts, buttocks, and genitalia. Under San Francisco’s strip search policy, all inmates who were deemed searchable based upon the above-described circumstances were automatically strip searched. Others “were generally not strip searched unless they were identified for placement in a safety cell, or if the detainee would not be released within twenty-four hours and therefore would need to be housed in another jail facility.” Consequently, all individuals who were classified for housing in the general population were strip searched without regard to the criminal charges they were facing.
Mary Bull and a class of arrestees brought a lawsuit against the City and County of San Francisco, the sheriff’s department, the sheriff, and sheriff’s deputies (collectively, “San Francisco”) alleging violations of their rights under the Fourth and Fourteenth Amendments of the United States Constitution. These arrestees were strip searched even though they did not fall within any of the specific categories listed above. The trial court found that San Francisco’s sheriff was not entitled to qualified immunity in the arrestees’ lawsuit “with respect to San Francisco’s blanket policy of strip searching all individuals for housing in the general jail population.” San Francisco appealed that decision.
Decision
In order to determine if a government employee is entitled to qualified immunity, a court must determine whether the employee violated the plaintiff’s constitutional rights, and if a violation occurred, “whether the rights were clearly established at the time of the violation.” Here, the Court of Appeals determined that San Francisco violated the arrestees’ constitutional rights and those rights were clearly established at the time of the violation. Accordingly, the Court of Appeals affirmed the trial court’s decision.
The Court of Appeals had previously held 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.” The court had also previously invalidated a city’s blanket policy of strip searching all felony arrestees. A previous decision held that there should be no qualified immunity for a county sheriff who had a blanket policy that called for a strip search of a misdemeanor arrestee prior to a determination as to whether the arrestee would be released on his or her own recognizance.
Under controlling Ninth 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.” Because of the intrusiveness of a body-cavity search, in order to justify the resulting 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.” The court concluded that San Francisco’s policy did not consider individualized facts and instead required strip searches of arrestees just because they were to be classified for housing in the general population.
The court concluded that San Francisco failed to document instances where arrestees of the type who were eligible for the class of arrestees who brought the lawsuit (those who were strip searched solely because of their housing classification) had engaged in smuggling contraband. The court found that the strip searches of the class of arrestees in the lawsuit were unconstitutional.
The court also found that the arrestees’ constitutional rights were clearly established at the time of the violations. The court noted that the test for determining whether the rights were clearly established “is whether a reasonable person could have believed his actions lawful at the time they were undertaken.” The court stated that it had previously “affirmed and reaffirmed . . . that a strip search of a pre-arraignment detainee must be supported by reasonable suspicion.” Also, previous precedent had made clear that placement of an arrestee in general jail population was not alone enough to justify a strip search.
Accordingly, the court held that the sheriff was not entitled to qualified immunity from the arrestees’ lawsuit. The case was remanded so that the arrestees could proceed with their lawsuit. The court emphasized that its “holding in no way prevents correctional facilities from searching inmates under permissible circumstances.” The court did not “even discuss the rights of those who are incarcerated after having been convicted of a criminal offense” because the case “concerns only pre-trial arrestees.”