Dana West v. Susan Murphy , 771 F.3d 209 ( 2014 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-2014
DANA T. WEST, individually and on behalf of all others
similarly situated; ANTHONY HAIG; GARY SAUNDERS; MICHAEL
WASHINGTON,
Plaintiffs - Appellants,
and
ERIC JONES; KEVIN ADAMS; TONIA BOWIE; DAVID COLYNS; AARON
ROSS,
Plaintiffs,
v.
SUSAN MURPHY, former Warden, Baltimore Central Booking and
Intake Center, individually and in her official capacity;
WILLIAM JEDNORSKI, former Warden, Baltimore Central Booking
and Intake Center, individually and in his official
capacity,
Defendants - Appellees,
and
CITY OF BALTIMORE; BALTIMORE CITY POLICE DEPARTMENT; MAYOR
AND CITY COUNCIL OF BALTIMORE; MITCHELL FRANKS, Warden,
Baltimore Central Booking and Intake Center, individually
and in his official capacity,
Defendants.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, District Judge.
(1:05-cv-01287-CCB)
Argued: September 17, 2014 Decided: November 14, 2014
Before WILKINSON, SHEDD, and WYNN, Circuit Judges.
Affirmed by published opinion. Judge Wilkinson wrote the
opinion, in which Judge Shedd and Judge Wynn joined. Judge Wynn
wrote a separate concurring opinion.
ARGUED: Barrett Stephen Litt, KAYE MCLANE BEDNARSKI & LITT,
Pasadena, California, for Appellants. William F. Brockman,
OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland,
for Appellees. ON BRIEF: Sean R. Day, Greenbelt, Maryland;
William Claiborne, Washington, D.C., for Appellants. Douglas F.
Gansler, Attorney General, Matthew J. Fader, Assistant Attorney
General, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore,
Maryland, for Appellees.
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WILKINSON, Circuit Judge:
This 42 U.S.C. § 1983 action involves strip searches of
arrestees in the Baltimore Central Booking and Intake Center.
The district court granted defendants’ motions for summary
judgment on the grounds of qualified immunity. Jones v. Murphy,
2013 WL 822372, at *6 (D. Md. Mar. 5, 2013). We now affirm.
I.
A.
The named plaintiffs are men who went through the booking
process at the Baltimore Central Booking and Intake Center in
Baltimore, Maryland (“Central Booking”). They represent a
certified class of persons who were arrested between May 12,
2002, and April 30, 2008, “(a) on charges [or in cases] not
involving weapons, drugs, or felony violence, and (b) strip
searched (c) prior to or without presentment before a court
commissioner or other judicial officer.” Jones v. Murphy, 2013
WL 822372, at *3 (D. Md. Mar. 5, 2013). The district court
defined a strip search as “the removal, pulling down, or
rearrangement of clothing for the visual inspection of a
person’s genital and/or anal areas, which may also include
requiring the person to squat and cough, in the presence of one
or more guards.” Id. The defendants are two former wardens of
Central Booking.
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Central Booking opened in 1995. The facility has two
sections: the booking area and the housing unit. Only activities
on the booking floor are at issue in this case.
After an individual is arrested in Baltimore, a transport
officer brings him or her to Central Booking. Each arrestee
enters the facility through a gender-specific sallyport, where
an officer searches the arrestee with a metal detector and a
pat-down. The sallyport officer puts a color-coded wristband on
the arrestee. Scanning the barcode on the wristband allows an
officer to view the arrestee’s name, the charge, which officer
arrested him, as well as the date, time, and location of the
arrest. Some arrestees already have wristbands when they arrive;
others come only with a “toe tag,” which is a form listing the
information that will be connected to the barcode. The sallyport
officer also conducts a brief medical examination of the
arrestee.
Following that, arrestees proceed to a search room where
officers conduct a more thorough search, bagging and
inventorying any personal property. Plaintiffs allege that at
this stage of the process correctional officers conducted strip
searches of the type described by the class certification order.
In order to conduct the search, officers remove arrestees’
handcuffs or flex-cuffs, which generally remain off for the
remainder of the booking procedure. From the search room, an
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officer guides the arrestee to an intake window, where an intake
officer inputs toe-tag information into the computer system and
asks medical questions. An officer then escorts the arrestee to
another room to be fingerprinted and photographed. Eventually,
the arrestee is either brought before a commissioner or released
without charge.
Between the various stages of the booking process,
arrestees may be held in holding rooms with other arrestees.
They remain in holding rooms while they wait to see a court
commissioner, which under Maryland law must occur within 24
hours of the arrest. Md. Rule 4-212(f). Officers do not separate
arrestees by crime of arrest or criminal history. In fact,
officers often know only what is on the toe-tag, and even the
name given on the toe-tag (and in the computer system) may be an
alias. It is not until after the fingerprinting stage that
officers have access to the arrestee’s criminal history and any
outstanding warrants. The holding rooms may contain up to 25
arrestees at a time, but over the course of his stay in Central
Booking an arrestee may share a room with many more than 25
others because of the ingress and egress of people in any given
holding room. The four named plaintiffs shared rooms with 55,
36, 35, and 20 different persons, respectively, who had been
arrested for a variety of crimes, including firearm violations,
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drug crimes, assault, burglary, automobile theft, and armed
robbery.
All told, Central Booking processed an average of 229
arrestees per day during the class period. Each arrestee
inevitably interacted with many other arrestees during his stay,
including those charged with both minor and serious offenses.
Roughly three-quarters of class members were not committed to
the housing unit, but in total only 51% of all arrestees were
released either before or after seeing a court commissioner.
Therefore, plaintiffs had “substantial contact with other
detainees, including some who were later admitted to general
population” of the housing unit. Jones, 2013 WL 822372, at *5.
As the district court noted, contraband poses significant
security risks and dangers inside detention facilities. Weapons
or other items may be used to attack officers or other
arrestees. Id. at *2. Arrestees may overdose on drugs, or their
intoxication may create additional burdens for officers. Id.
Arrestees arriving at Central Booking have been found to have
firearms, razor blades, knives, drugs, cigarettes, cell phones,
and other items on their persons. Id.; J.A. at 193, 328, 335,
340-43, 567-68, 601-03, 611, 715-16, 1007-08, 1077-78, 1232-35,
1244-45, 1381-82, 1478-79, 1502-04, 1717, 1750-52. The more
thorough searches in the search room have turned up drugs,
cigarettes, lighters, money, cell phones, razor blades, and
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knives. Jones, 2013 WL 822372, at *2; J.A. at 193, 335, 340-43,
601-03, 1077, 1478-79, 1502-04, 1750-52. Even so, contraband has
made its way into the holding rooms. According to the testimony
of correctional officers, one arrestee was wounded by box
cutters, and another attempted to commit suicide with a razor
blade. Jones, 2013 WL 822372, at *2; J.A. at 716, 1007.
Plaintiffs acknowledge arrestees used drugs while in holding
rooms. Jones, 2013 WL 822372, at *2; J.A. at 1342, 1812-13.
B.
This litigation has been ongoing since arrestees filed
their initial complaint in 2005. The Fourth Amended Complaint
consisted of twelve counts and sought certification of five
separate class actions. This appeal concerns only Count 1, which
the district court certified under Federal Rule of Civil
Procedure 54(b). In 2007, the district court initially denied
defendants’ motions to dismiss, holding that the wardens were
not entitled to qualified immunity because “the right of those
arrested for offenses not likely to involve weapons or
contraband to be free from strip searches without any
individualized finding of reasonable suspicion appears to be
clearly established” in the Fourth Circuit. Jones v. Murphy, 470
F. Supp. 2d 537, 547 (D. Md. 2007) (citing Amaechi v. West, 237
F.3d 356, 365 (4th Cir. 2001); Abshire v. Walls, 830 F.2d 1277,
1279-80 (4th Cir. 1987); Logan v. Shealy, 660 F.2d 1007, 1013
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(4th Cir. 1981)). However, the court reversed course in its 2013
summary judgment opinion, highlighting “the present lack of a
clear test applicable to the specific circumstances of detention
practices at [Central Booking] during the years at issue in this
litigation.” Jones, 2013 WL 822372, at *6. This more recent
decision is the subject of this appeal.
The Supreme Court’s intervening decision in Florence v.
Board of Chosen Freeholders of County of Burlington, 132 S. Ct.
1510 (2012), prompted the district court to change direction.
The Supreme Court held that “every detainee who will be admitted
to the general population [of a jail] may be required to undergo
a close visual inspection while undressed.” Id. at 1513. The
district court determined that Florence “overruled some aspects
of Fourth Circuit law” on which the 2007 decision had “relied,”
and “left the contours of any ‘exception’ that would apply to
the plaintiffs in this case unclear and open to debate.” Jones,
2013 WL 822372, at *6.
II.
A.
Plaintiffs claim that the district court erred in holding
that the wardens were entitled to qualified immunity. Under the
doctrine of qualified immunity, a government official is not
personally liable for damages resulting from his actions if his
“conduct does not violate clearly established statutory or
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constitutional rights of which a reasonable person would have
known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
Determining whether qualified immunity applies involves a two-
prong inquiry: “whether the facts . . . make out a violation of
a constitutional right” and “whether the right at issue was
‘clearly established’ at the time of defendant’s alleged
misconduct.” Pearson v. Callahan, 555 U.S. 223, 232 (2009).
The law is clearly established if “‘the contours of a right
are sufficiently clear’ that every ‘reasonable official would
have understood that what he is doing violates that right.’”
Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011) (quoting
Anderson v. Creighton, 483 U.S. 635, 640 (1987)) (alterations
omitted). “[E]xisting precedent must have placed the statutory
or constitutional question beyond debate.” Al-Kidd, 131 S. Ct.
at 2083. The universe of existing precedent is not unlimited.
Courts “‘ordinarily need not look beyond the decisions of the
Supreme Court, this court of appeals, and the highest court of
the state in which the case arose.’” Lefemine v. Wideman, 672
F.3d 292, 298 (4th Cir. 2012) (quoting Edwards v. City of
Goldsboro, 178 F.3d 231, 251 (1999)), vacated on other grounds,
133 S. Ct. 9 (2012).
Qualified immunity takes cognizance of human imperfections.
“Implicit in the idea that officials have some
immunity . . . for their acts, is a recognition that they may
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err” and “that it is better to risk some error and possible
injury from such error than not to decide or act at all.”
Scheuer v. Rhodes, 416 U.S. 232, 242 (1974), abrogated by
Harlow, 457 U.S. 800. Qualified immunity thus “shield[s]
officials from harassment, distraction, and liability when they
perform their duties reasonably.” Pearson, 555 U.S. at 231.
“[I]nsubstantial lawsuits” create “social costs,” among them the
unwarranted inhibition of basic public functions. Harlow, 457
U.S. at 814. Such suits also discourage “capable citizens
[from] join[ing] the ranks of public servants” and threaten to
undermine “officers' discretion and expertise.” Braun v.
Maynard, 652 F.3d 557, 560 (4th Cir. 2011). Courts thus do not
penalize officials for “‘bad guesses in gray areas.’” Id.
(quoting Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir.
1992)).
We review the grant of summary judgment de novo, S.
Appalachian Mountain Stewards v. A & G Coal Corp., 758 F.3d 560,
562 (4th Cir. 2014), “tak[ing] care not to define a case’s
‘context’ in a manner that imports genuinely disputed factual
propositions,” Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014). We
may address either prong of the qualified immunity analysis
first. Pearson, 555 U.S. at 236. Here the availability of the
qualified immunity defense makes it unnecessary to take up the
merits of plaintiffs’ constitutional challenge.
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B.
Defendants contend, and the district court held, Jones v.
Murphy, 2013 WL 822372, at *6 (D. Md. Mar. 5, 2013), that
Florence v. Board of Chosen Freeholders of County of Burlington,
132 S. Ct. 1510 (2012), demonstrates that the law was not
clearly established even though that decision came several years
after the close of the class period.
The relevant question, however, is whether the law was
clearly established as of the time of the search. Reichle v.
Howards, 132 S. Ct. 2088, 2093 (2012) (examining the state of
the law “at the time of [the] arrest”); al-Kidd, 131 S. Ct. at
2083 (determining whether the law was clearly established “at
the time of the challenged conduct”); Wilson v. Layne, 526 U.S.
603, 614 (1999) (“[W]e now must decide whether this right was
clearly established at the time of the search.”); Anderson, 483
U.S. at 640 (“[I]n the light of pre-existing law the
unlawfulness must be apparent.”); Mitchell v. Forsyth, 472 U.S.
511, 535 (1985) (“The decisive fact is . . . that the question
was open at the time he acted.”).
This temporal element inheres in qualified immunity because
the inquiry into “clearly established law” is tethered to the
need for notice. Public officials, no less than private
citizens, are entitled to know when their actions violate the
law. Notice means prior notice, not notice after the fact.
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Reichle, 132 S. Ct. at 2093 (The clearly established law
requirement allows officers to “anticipate when their conduct
may give rise to liability for damages.” (quoting Anderson, 483
U.S. at 639)); Hope v. Pelzer, 536 U.S. 730, 739 (2002) (The
requirement “‘ensure[s] that before they are subjected to suit,
officers are on notice their conduct is unlawful.’” (quoting
Saucier v. Katz, 533 U.S. 194, 206 (2001)); Braun, 652 F.3d at
561 (“Proper notice to public officials lies at the heart of
qualified immunity.”).
Decisions issued after the allegedly unconstitutional
conduct do not affect whether the law was clearly established at
the time of the conduct unless, of course, the later decision
addresses or otherwise illuminates whether the law was clearly
established at the time of the challenged official action. In
some instances, the law may change for the apparent benefit of
government officials. But though such a change in law may
indicate that there was no constitutional violation on the
merits, it does not affect whether the law was clearly
established because the favorable judicial decision could not
have informed the officials’ understanding of whether their
actions were unlawful. Of course the need for prior notice is a
two-way street. It is just as likely that a later-in-time
judicial decision could clearly establish the illegality of the
conduct in question. But later-in-time is not at the time, and
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prescience is not to be presumed in granting or withholding the
immunity.
The Supreme Court decided Florence on April 2, 2012. See
132 S. Ct. at 1510. The class period in this case ran from May
12, 2002, until April 30, 2008. Jones, 2013 WL 822372, at *3. As
Florence came down almost four years after the class period
closed, it does not demonstrate that the law on jail strip
searches either was or was not clearly established at the time
these alleged searches were conducted.
III.
Plaintiffs rely on Logan v. Shealy, 660 F.2d 1007 (4th Cir.
1981), and cite Amaechi v. West, 237 F.3d 356 (4th Cir. 2001),
and Abshire v. Walls, 830 F.2d 1277 (4th Cir. 1987), to assert
that during the class period it was clearly established that
strip searches of the type performed in Central Booking were
unconstitutional. Logan, Amaechi, and Abshire, however, do not
clearly establish that the wardens’ alleged conduct was
unlawful.
In Logan, this court utilized the balancing test of Bell v.
Wolfish, 441 U.S. 520 (1979), to find that a jail strip search
was unreasonable and thus a violation of the Fourth Amendment.
660 F.2d at 1013. Bell instructs courts to “consider the scope
of the particular intrusion, the manner in which it is
conducted, the justification for initiating it, and the place in
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which it is conducted.” 441 U.S. at 559. Logan had been arrested
for driving while intoxicated and brought before a magistrate,
who issued an arrest warrant and ordered her released on her own
recognizance after a period of four hours (so she could sober
up) or as soon as someone could pick her up. 660 F.2d at 1009-
10. A sheriff’s deputy, however, refused to let her call a
friend until she had been strip-searched. Id. at 1010. That
search took place in a holding room with a window with the
blinds raised, such that her naked body was “exposed to the
general view of persons known to be in the vicinity.” Id. at
1014.
The court held that the search was unconstitutional,
reasoning:
On the undisputed and stipulated evidence, Logan’s
strip search bore no such discernible relationship to
security needs at the Detention Center that, when
balanced against the ultimate invasion of personal
rights involved, it could reasonably be thought
justified. At no time would Logan or similar detainees
be intermingled with the general jail population; her
offense, though not a minor traffic offense, was
nevertheless one not commonly associated by its very
nature with the possession of weapons or contraband;
there was no cause in her specific case to believe
that she might possess either; and when strip-
searched, she had been at the Detention Center for one
and one-half hours without even a pat-down search.
Id. at 1013. The court emphasized the lack of privacy in the
location where the search was performed. Id. at 1014.
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Logan is a far cry from this case. Unlike in Logan, Central
Booking officers conduct the thorough searches in a dedicated
search room, not a holding room with a transparent window.
Moreover, defendants here have pointed to, and the district
court has recognized, Jones v. Murphy, 2013 WL 822372, at *2 (D.
Md. Mar. 5, 2013), significant security justifications for the
searches allegedly conducted. Preventing the smuggling of drugs,
weapons, and other contraband into a detention facility is a
legitimate justification, especially where arrestees such as the
plaintiffs mingle with dozens of other arrestees for up to 24
hours. There was no comparable security justification -- indeed
no credible justification at all -- advanced in Logan’s case.
She was set to leave the jail shortly, and presumably without
interacting with other arrestees. In analyzing qualified
immunity we are required to define the right in question “at a
high level of particularity,” Edwards v. City of Goldsboro, 178
F.3d 231, 251 (1999), and be mindful of the “specific context of
the case,” Saucier v. Katz, 533 U.S. 194, 201 (2001). In the
context of Central Booking, it was not ”sufficiently clear that
every reasonable official would have understood that what he is
doing” failed the Bell test and contravened Logan. Ashcroft v.
al-kidd, 131 S. Ct. 2074, 2083 (2011) (citation, quotation
marks, and alterations omitted).
15
For similar reasons, neither Amaechi nor Abshire clearly
established that the Central Booking searches were
unconstitutional. In Amaechi, police officers arrested a woman
for a noise violation that occurred two days prior. 237 F.3d at
359. She was wearing only a light dress that was missing buttons
so it could not close below the chest unless she held it shut.
Id. at 359 n.7. The police refused to let her change; when they
handcuffed her, she was left essentially naked. Id. at 359. An
officer then proceeded to physically search her in front of her
home; he “squeezed her hips, and inside her opened dress,
‘swiped’ one ungloved hand, palm up, across her bare vagina, at
which time the tip of his finger slightly penetrated Amaechi’s
genitals,” and then “knead[ed]” her buttocks with his hand. Id.
There is no comparison between Central Booking and the
physically and sexually abusive search of Amaechi, which “took
place directly in front of the Amaechis’ townhouse, where the
other police officers, Amaechi’s husband, her five children, and
all of her neighbors had the opportunity to observe.” Id. at
360.
In Abshire, the strip search of the male arrestee was
performed in a utility room with the door open so that more than
a half dozen police officers, including one woman, viewed it.
830 F.2d at 1279-80. The officers had not even done a pat-down
of Abshire; the strip search appeared to have been conducted in
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retaliation for Abshire’s repeated request to make a phone call.
Id. The weak justifications for the search did not outweigh the
manner in which the officers conducted the search. Id. at 1280.
And the contact with large numbers of variously charged
arrestees that is present in this case was nowhere mentioned in
Abshire.
We do not require that a prior case be identical to the
case at bar for fair notice to be provided. See Hope v. Pelzer,
536 U.S. 730, 741 (2002). But “‘in the light of pre-existing law
the unlawfulness must be apparent.’” Id. (quoting Anderson v.
Creighton, 483 U.S. 635, 640 (1987)). Under the Bell balancing
test, the searches in Logan, Amaechi, and Abshire were
unconstitutional because there were no security reasons strong
enough to justify the intrusive and public nature of the
searches. The searches allegedly performed at Central Booking,
however, were conducted in a different and less public setting
than those described by our precedents, and the security
justifications for the Central Booking searches were more
compelling. We do not address the constitutional merits of these
searches. But “[g]iven such an undeveloped state of the law,”
the immunity defense does not permit us to tax correctional
officers with clairvoyance. Wilson v. Layne, 526 U.S. 603, 617
(1999).
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IV.
The district court ultimately was correct that the
defendants are entitled to qualified immunity because the law
did not clearly establish at the time that the searches were
conducted that they were unlawful.
AFFIRMED
18
WYNN, Circuit Judge, concurring:
I concur in the well-reasoned majority opinion. I write
separately to underscore the importance of addressing the
legality of strip searching detainees held outside the general
population in the appropriate case.
In Florence v. Board of Chosen Freeholders of County of
Burlington, the Supreme Court left open the question of whether
strip searching detainees held outside the general population
would be constitutional. 132 S. Ct. 1510, 1511 (2012) (“[T]he
controversy concerns whether every detainee who will be admitted
to the general population may be required to undergo a close
visual inspection while undressed.”) (emphasis added). The
splintered Florence decision included two concurrences and a
strongly worded dissent, each of which expressed unease with the
indiscriminate strip searching of detainees held outside of the
general population. See id., 132 S.Ct. at 1523 (Roberts, C.J.,
concurring); id. at 1524 (Alito, J., concurring); id. at 1525
(Breyer, J., joined by Ginsburg, Sotomayor, and Kagan, JJ.,
dissenting).
Thus, in Florence, the Supreme Court staked out an
important limitation to its holding. Florence does not apply to
strip searches of detainees held outside of the general
population. It now falls to us to apply the Constitution and
relevant precedent to those cases that Florence does not
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control. Clearly, as this Court holds today, our ruling in
Logan v. Shealy does not put officers on reasonable notice as to
the limits the Constitution places on strip searches under the
circumstances of this case. 660 F.2d 1007, 1013 (4th Cir.
1981).
This Circuit has held that it is appropriate to address the
constitutional merits in a qualified immunity case where doing
so would “clarify and elaborate upon our prior jurisprudence in
important and necessary ways.” See Doe ex rel. Johnson v. S.
Carolina Dep't of Soc. Servs., 597 F.3d 163, 169 (4th Cir. 2010)
(citing Pearson v. Callahan, 555 U.S. 223, 232 (2009)). There
can be no question that our jurisprudence in this area needs
clarification and elaboration.
Unfortunately, by not reaching the constitutional merits in
this matter, we leave corrections officers adrift in uncharted
waters. Nonetheless, because the trial court confined itself to
the “clearly established” prong of the qualified immunity
analysis and did not reach the constitutional merits, and
because the parties focused on the “clearly established” prong
on appeal, I join with the majority opinion in delaying our
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consideration of this important constitutional issue for another
day. *
*
In fact, pending before this same panel is Cantley v. West
Virginia Regional Jail, No. 13-7655, in which the district court
held that the strip search of a detainee held outside the
general jail population was constitutional.
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