Bull v. City & County Sf ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARY BULL; JONAH ZERN, and all 
others similarly situated; LAURA
TIMBROOK; LEIGH FLEMING; CHARLI
JOHNSON; MICKY MANGOSING;
ALEXIS BRONSON; MARCY CORNEAU;
LISA GIAMPAOLI, No. 05-17080
Plaintiffs-Appellees,
v.  D.C. No.
CV-03-01840-CRB
CITY AND COUNTY OF SAN
FRANCISCO; SAN FRANCISCO COUNTY
SHERIFF’S DEPARTMENT; MICHAEL
HENNESSEY, Sheriff; SAN FRANCISCO
COUNTY SHERIFF’S DEPUTIES,
Defendants-Appellants.

MARY BULL; JONAH ZERN, and all 
others similarly situated; LAURA
TIMBROOK; LEIGH FLEMING; CHARLI
JOHNSON; MICKY MANGOSING;
ALEXIS BRONSON; MARCY CORNEAU;
No. 06-15566
LISA GIAMPAOLI,
Plaintiffs-Appellees, D.C. No.
v.  CV-03-01840-CRB/
EMC
CITY AND COUNTY OF SAN
OPINION
FRANCISCO; SAN FRANCISCO COUNTY
SHERIFF’S DEPARTMENT; MICHAEL
HENNESSEY, Sheriff; SAN FRANCISCO
COUNTY SHERIFF’S DEPUTIES,
Defendants-Appellants.

11471
11472 BULL v. CITY AND COUNTY OF SAN FRANCISCO
Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding
Argued and Submitted
November 6, 2007—San Francisco, California
Filed August 22, 2008
Before: Sidney R. Thomas, Richard C. Tallman, and
Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Thomas;
Concurrence by Judge Ikuta;
Dissent by Judge Tallman
BULL v. CITY AND COUNTY OF SAN FRANCISCO 11475
COUNSEL
Dennis J. Herrera, City Attorney; Joanne Hoeper, Chief Trial
Attorney; and David B. Newdorf (argued) and Robert A.
Bonta, City Attorneys, for the appellants.
Marke E. Merin and Cathleen A. Williams, Law Office of
Mark E. Merin (argued); and Andrew Charles Schwartz
(argued) and Thomas A. Seaton, Casper, Meadows, Schwartz
& Cook, for the appellees.
OPINION
THOMAS, Circuit Judge:
In this interlocutory appeal, we consider whether a blanket
policy of strip searching without reasonable suspicion of all
individuals arrested and classified for housing in the general
jail population violates the arrestees’ clearly established con-
stitutional rights. Under the circumstances presented by this
case, we conclude that it does, and affirm the order of the dis-
trict court denying qualified immunity in this § 1983 class
action suit.
11476 BULL v. CITY AND COUNTY OF SAN FRANCISCO
I
The San Francisco Sheriff’s Department (“Department”)
oversees an urban jail system, consisting of six county jails,
which books and processes tens of thousands of persons a
year. All new arrestees are brought to County Jail No. 9
where they are booked and a determination is made as to
whether the arrestee will be released or housed pending
arraignment. County Jail No. 9 is a temporary detention facil-
ity and does not contain accommodations for extended stays.
Thus, all detainees who are classified for housing are trans-
ferred to another one of San Francisco’s jails within 24 hours.
San Francisco’s jails have faced a continuing problem with
smuggled contraband, including drugs and weapons. Searches
within the general jail population have uncovered hundreds of
items of contraband. Many items of contraband have been dis-
covered during strip searches conducted on new arrestees at
County Jail No. 9. Defendants produced evidence of 49 dis-
coveries of drug-related contraband and six weapon discover-
ies between April 2000 and January 2004.
Until January 21 2004, San Francisco had a policy1 of strip
searching all arrestees entering County Jail No. 9 who fell
into multiple particular categories.2 The strip search involved
1
San Francisco’s new policy, which went into effect January 21, 2004
and currently remains in effect, is not at issue in this case.
2
According to the San Francisco Sheriff’s Department’s Policy and Pro-
cedure manual, the following categories of arrestees were required to be
strip searched at the time of booking:
• An arrestee charged with a crime involving
drugs, weapons, or violence;
• An arrestee with a criminal history involving
drugs, weapons, or violence within the preceding
five years or multiple arrests within the last five
years for drugs, weapons, or violence;
BULL v. CITY AND COUNTY OF SAN FRANCISCO 11477
inspection of the naked body, including the arrestee’s breasts,
buttocks, and genitalia.
According to Defendants, the strip search policy was
applied as follows: upon arrival at County Jail No. 9, all
inmates who were deemed searchable based on their charge
or criminal history were automatically strip searched. Other
arrestees were generally not strip searched unless they were
• A person charged with a parole violation or
booked with a state parole hold;
• A person charged with violation of probation;
• A person in custody on detainer from another
jurisdiction;
• A person returned to custody from San Francisco
County parole;
• A person returned to custody from residential
placement programs;
• A person in custody of another agency, booked
into jail for safe-keeping;
• A person booked on a U.S. Marshal hold;
• A person assigned a custody level and scheduled
for custodial housing;
• A person delivered from another jail.
The manual also stipulated that any arrestee may be strip searched by
the “arresting, transporting, or booking officer” when the officer “has a
reasonable suspicion based on articulable facts that the person may pos-
sess contraband.
11478 BULL v. CITY AND COUNTY OF SAN FRANCISCO
identified for placement in a safety cell,3 or if the detainee
would not be released within twenty-four hours and therefore
would need to be housed in another jail facility. In other
words, the Department followed a blanket policy of strip
searching all individuals who were classified for housing in
the general jail population, regardless of the crime for which
they were charged.
On April 23, 2003, Mary Bull and a class of similarly-
situated plaintiffs brought a § 1983 suit against Defendants
alleging causes of action under the Fourth and Fourteenth
Amendments of the U.S. Constitution, and several provisions
of state law. In an order issued June 10, 2004, the district
court granted Bull’s motion to certify a class under Rule
23(b)(3). The class was defined as:
All persons who, during the applicable period of lim-
itations, and continuing to date, were arrested on any
charge not involving weapons, controlled sub-
stances, or a charge of violence, and not involving a
violation of parole or a violation of probation (where
consent to search is a condition of such probation),
and who were subjected to a blanket visual body
cavity strip search by defendants before arraignment
at a San Francisco County jail facility without any
individualized reasonable suspicion that they were
concealing contraband. This class also includes 1) all
arrestees who were subjected to subsequent blanket
strip search(es) before arraignment after the initial
strip search, without any reasonable individualized
suspicion that they had subsequently acquired and
hidden contraband on their persons; and 2) all per-
sons who, prior to arraignment, were subjected to
blanket visual body cavity search(es) incident to
3
Safety cells are single-occupant, padded cells used to house inmates
who were considered a danger to themselves or others, to be behaving in
a “bizarre” manner, or to be “gravely disabled.”
BULL v. CITY AND COUNTY OF SAN FRANCISCO 11479
placement in a “safety cell” at any of the San Fran-
cisco County jails.
The class was further limited by the district court’s Febru-
ary 23, 2006 order, which held that San Francisco’s policy of
strip searching arrestees on the basis of their criminal history
was lawful.4 The persons in the class as it stands before this
Court are thus all arrestees who were strip searched prior to
arraignment solely because they were classified for housing in
the general jail population prior to their arraignment.
The parties filed cross-motions for summary judgment. On
September 22, 2005 the district court granted in part and
denied in part both motions. In relevant part, the district court
held that Sheriff Hennessey was not entitled to qualified
immunity with respect to San Francisco’s blanket policy of
strip searching all individuals classified for housing in the
general jail population. Defendants now appeal the district
court’s denial of qualified immunity for Sheriff Hennessey.5
II
We review de novo a district court’s decision to grant sum-
mary judgment on the ground of qualified immunity. Motley
v. Parks, 383 F.3d 1058, 1062 (9th Cir. 2004). In reviewing
4
Specifically, the court excluded arrestees with one or more prior con-
victions or two or more prior arrests for crimes involving drugs, weapons
or violence within the prior five years.
5
On October 21, 2006 Defendants moved for reconsideration of portions
of the district court’s August 30, 2005 Order that were unrelated to the
court’s denial of qualified immunity for the Sheriff. Defendants simulta-
neously appealed the denial of qualified immunity to this Court. This
appeal was assigned Docket No. 05-17080. On February 23, 2006 the dis-
trict court issued an Amended Memorandum and Order Re: Motions for
Summary Judgment. Defendants again appealed the denial of qualified
immunity to this Court. This second appeal was assigned Docket No. 06-
15566. On April 26, 2006, this Court issued an Order consolidating
appeals No. 05-17080 and 06-15566.
11480 BULL v. CITY AND COUNTY OF SAN FRANCISCO
a district court’s grant of summary judgment we must deter-
mine, viewing the evidence in the light most favorable to the
nonmoving party, whether there are any genuine issues of
material fact and whether the district court correctly applied
the relevant substantive law. Olsen v. Idaho State Bd. of Med.,
363 F.3d 916, 922 (9th Cir. 2004).
To determine whether a government employee is entitled to
qualified immunity, we use a two-part test. Saucier v. Katz,
533 U.S. 194, 201 (2001). First, we must determine whether,
viewing the facts in the light most favorable to the plaintiff,
the government employees violated the plaintiff’s constitu-
tional rights. Id. Then, if we determine that a constitutional
violation has occurred, we must determine whether the rights
were clearly established at the time of the violation. Id.A
We turn first to the question of whether a policy of strip
searching arrestees solely because they are classified for hous-
ing in the general population, in the absence of any reasonable
suspicion, violates the arrestees’ constitutional rights. Follow-
ing a long history of precedent, we conclude that it clearly
does.
[1] In the first case to raise the question, Giles v. Ackerman,
746 F.2d 614 (9th Cir. 1984) (per curiam), overruled on other
grounds by Hodgers-Durgin v. de la Vina, 199 F.3d 1037,
1040 n.1 (9th Cir. 1999) (en banc), we announced the govern-
ing standard that “arrestees for minor offenses may be sub-
jected 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.” Id. at
615.6
6
The dissent’s suggestion that this standard was stated in dicta is disin-
genuous. The full text of the sentence quoted above is as follows: “We
hold that arrestees for minor offenses may be subjected to a strip search
BULL v. CITY AND COUNTY OF SAN FRANCISCO 11481
[2] We have revisited pre-arraignment searches several
times, on each occasion reaffirming the individualized reason-
able suspicion standard laid out in Giles. In Ward v. County
of San Diego, 791 F.2d 1329 (9th Cir. 1986), we found no
qualified immunity for a San Diego County Sheriff who had
enacted a blanket strip search policy which resulted in the
visual body cavity search of a misdemeanor arrestee prior to
a determination regarding the arrestee’s eligibility for an own
recognizance release. In Thompson v. City of Los Angeles,
885 F.2d 1439 (9th Cir. 1989), we held that the strip search
of a person arrested for felony grand theft auto was valid
because the charge was “sufficiently associated with violence
to justify a visual strip search.” Id. at 1447. The next year,
however, we held unconstitutional the City of Los Angeles’s
blanket strip search policy which subjected all felony
arrestees to a visual body cavity search. Kennedy v. Los Ange-
les Police Dept., 901 F.2d 702, 714 (9th Cir. 1990), abrogated
on other grounds by Hunter v. Bryant, 502 U.S. 224 (1991)
(per curiam). In Kennedy, we emphasized that while a charge
of a violent offense, such as the charge in Thompson, may jus-
tify a strip search, the mere fact of a felony charge bears no
reasonable relationship to institutional security concerns. Id.
at 713 (“[T]he enacted policy, if it is to be constitutional, must
be ‘reasonably related’ to the penal institution’s interest in
maintaining security.”). In short, under controlling circuit pre-
cedent, a blanket strip search of pre-arraignment arrestees, no
matter how minor the offense and in absence of reasonable
suspicion, violates the Constitution.
Defendants argue that San Francisco’s policy is constitu-
tional under Bell v. Wolfish, 441 U.S. 520 (1979), in which
only if jail officials have a reasonable suspicion that the particular arrestee
is carrying or concealing contraband or suffering from a communicable
disease.” Giles, 746 F.2d at 615 (emphasis added). The dissent may dislike
the holding in Giles but there is no reasonable dispute that the above state-
ment is the holding, not mere dicta.
11482 BULL v. CITY AND COUNTY OF SAN FRANCISCO
the Supreme Court addressed a strip search policy applied to
prisoners and pre-trial detainees. However, Bell pre-dated the
pre-arraignment cases in our circuit, which carefully consid-
ered and distinguished Bell.
[3] In Bell the Supreme Court held that strip and visual
body cavity searches may, in certain instances, be conducted
on prisoners and pretrial detainees in institutional settings
with less than probable cause. 441 U.S. at 560. In determining
whether an institutional search policy is reasonable under the
Fourth Amendment, a court must balance “the need for the
particular search against the invasion of personal rights that
the search entails.” Id. at 559. In each case, a court “must con-
sider the scope of the particular intrusion, the manner in
which it is conducted, the justification for initiating it, and the
place in which it is conducted.” Id. Giles, Ward, Thompson,
and Kennedy were each decided subsequent to, and with the
benefit of, the Supreme Court’s holding in Bell.
Defendants also argue that San Francisco’s strip search pol-
icy was justified by the fact that the arrestees were to be trans-
ferred for housing in the general jail population, noting that
the introduction of contraband to the general population raises
serious security concerns. However, we have previously made
clear that although the fact that an arrestee is to be “placed
into contact with the general jail population” is one important
factor among many that may be considered in gauging the
reasonableness of a search, “such a factor by itself cannot jus-
tify a strip search.” Thompson, 885 F.2d at 1447; see also
Giles, 746 F.2d at 618-19 (rejecting the notion that placement
in the general jail population was enough to validate a strip
search because “intermingling is both limited and avoidable”).
[4] “The intrusiveness of a body-cavity search cannot be
overstated.” Kennedy, 901 F.2d at 711. To justify such a “de-
humanizing and humiliating,” id., invasion of privacy, there
must be some reasonable relationship between the criteria
used to identify the specific individuals eligible for a strip
BULL v. CITY AND COUNTY OF SAN FRANCISCO 11483
search and the interest in preventing the introduction of con-
traband. See Giles, 746 F.2d at 618 (reasonableness require-
ment under the Fourth Amendment requires that the strip
search bear some “discernible relationship to security needs”
(quoting Logan v. Shealy, 660 F.2d 1007, 1013 (4th Cir.
1981))); see also Kennedy, 901 F.2d at 713 (stressing the
importance of documentation supporting the assertion that
arrestees within the strip search category smuggle contraband
into the jail in greater frequency than arrestees outside of the
category). We have consistently noted that factors to be con-
sidered in determining whether reasonable suspicion exists to
warrant a strip search include “the nature of the offense, the
arrestee’s appearance and conduct, and the prior arrest
record.” Giles, 746 F.2d at 617; see also Thompson, 885 F.2d
at 1446.
[5] The challenged portion of San Francisco’s policy did
not consider such individualized factors and required strip
searches of arrestees based solely on their classification for
housing in the general population. Defendants nonetheless
argue that the present case is distinguishable from our long
line of precedent because they have produced substantial doc-
umentary evidence of the significant problem of contraband
in the general population of San Francisco jails. The district
court carefully examined the tendered evidence and found that
Defendants proffered no evidence demonstrating smuggling
by individuals who would qualify for membership in the
plaintiff class. Defendants argue that the record “established
that many detainees charged with minor offenses tried to
smuggle contraband into jail.” However, both Plaintiffs and
the district court correctly point out that of the numerous inci-
dents of discovered contraband documented by Defendants
and presented to the district court, none clearly documents a
single uncontroverted instance of a class member smuggling
contraband into a San Francisco facility.
Several of the documented searches were based on permis-
sible factors and the documentation for the remaining inci-
11484 BULL v. CITY AND COUNTY OF SAN FRANCISCO
dents does not contain any evidence relating either to the
reason for the search or the arrestee’s eligibility for class
membership. To review, the class certified by the district
court includes arrestees who were arrested for an offense not
involving drugs, weapons, violence, or a violation of parole
or probation; who did not have a criminal history involving
drugs, weapons, or violence; and whose behavior did not
create individualized suspicion warranting a search. The two
incidents cited by the Defendants illustrate the deficiency of
their documentation. First, Defendants point to an incident on
November 19, 2003 in which a man who was arrested on a
warrant for maintaining a public nuisance was found smug-
gling a plastic bag of suspected cocaine powder into the jail.
The documentation of this incident in the record consists of
an Incident Report and a Field Arrest Card. Neither document
indicates whether the arrestee had a criminal history that
would legitimize the search or whether there was any other
individualized suspicion that would legitimize the search.
Without more information, it is impossible to determine
whether this particular arrestee would be eligible for class
membership. Second, Defendants contend that a strip search
of an arrestee, who was not charged with drugs, weapons or
violence offenses, uncovered an 8-inch pair of scissors. The
only documentation in the record of this incident is a Contra-
band Form. The Contraband Form does not indicate the
charges on which this individual was arrested, the individual’s
criminal history, or whether there was any individualized sus-
picion that prompted the search. It is impossible to tell from
the record whether or not this individual is in fact an eligible
member of the class. In short, Defendants’ claim that they
have documented instances of eligible class members engag-
ing in smuggling contraband is not credible and not supported
by the record.7
7
Because Defendants did not actually produce sufficient evidence, with
respect to either of these incidents, to establish whether or not the searched
individuals were eligible class members, we need not consider whether
only two documented incidents would be sufficient to justify the policy.
BULL v. CITY AND COUNTY OF SAN FRANCISCO 11485
The incidents cited by the dissent similarly fail to demon-
strate even a single occurrence of a strip search uncovering
contraband from an eligible class member. Of the twelve inci-
dents cited by the dissent, two did not even involve strip
searches,8 and three others involved arrestees who were
demonstrably ineligible for class membership because they
were arrested on parole violation or drug charges. The docu-
mentation for the remaining seven incidents fails to include
any information regarding the arrestees’ criminal history or
whether the arrestees did anything to create individualized
suspicion warranting a strip search.
[6] As the district court concluded, the reports the defen-
dant produced regarding the discovery of contraband during
strip searches consistently fail to provide any indication of the
charges of the searched individuals or the reason why they
were searched. Absent such evidence, it is impossible for us
to know whether or not eligible class members are contribut-
ing at all—much less in any significant way—to the contra-
band problem in the San Francisco jails. As such, we cannot
conclude that there is any reasonable relationship between the
criteria triggering a search (classification for housing) and the
interest in conducting the search (eliminating the introduction
of contraband).
[7] In sum, controlling precedent holds that blanket strip
searches of pre-arraignment detainees regardless of severity
of charge and without reasonable suspicion are unconstitu-
tional. The district court properly concluded that the evidence
tendered by Defendants was insufficient to distinguish this
case from our long line of precedent based on case-specific
circumstances.
8
In one incident contraband was found in an arrestee’s shoe, in the other
contraband was found in the arrestee’s mouth. Neither a search of a shoe
nor of the inside of a person’s mouth qualifies as a strip search.
11486 BULL v. CITY AND COUNTY OF SAN FRANCISCO
B
We turn next to the question of whether the right violated
by Defendants was clearly established at the time of the
search. See Saucier, 533 U.S. at 201. “The relevant, disposi-
tive inquiry in determining whether a right is clearly estab-
lished is whether it would be clear to a reasonable officer that
his conduct was unlawful in the situation he confronted.” Id.
at 202. In other words, the inquiry is whether a reasonable
person could have believed his actions lawful at the time they
were undertaken. Anderson v. Creighton, 483 U.S. 635, 646
(1987).
We have made clear that the responsibility for keeping
abreast of constitutional developments in criminal law falls
squarely on the shoulders of law enforcement officials.
“Given the power of such officials over our liberty, and some-
times even over our lives, this placement of responsibility is
entirely proper. Law enforcement officials must be cognizant
not only of how far their authority extends, but also of the
point at which their authority ends.” Ward, 791 F.2d at 1332.
[8] San Francisco’s challenged strip search policy was in
place until January 2004. Well before that time, as we have
discussed, it was clearly established in this Circuit that con-
ducting strip searches of pre-arraignment arrestees based
solely on the fact that they were assigned for transfer to the
general population was unconstitutional. We have consis-
tently required consideration of individual factors, such as
arrest charges, criminal history, and suspicious behavior, to
justify strip searches of pre-arraignment arrestees. Indeed, in
an unbroken line of precedent tracing back to 1984, we have
affirmed and reaffirmed the fundamental holding of Giles that
a strip search of a pre-arraignment detainee must be supported
by reasonable individualized suspicion. It was also abundantly
clear after Thompson that placement in the general jail popu-
lation “by itself cannot justify a strip search.” Thompson, 885
F.2d at 1447.
BULL v. CITY AND COUNTY OF SAN FRANCISCO 11487
[9] Moreover, we have explicitly stated several times that
it has been clearly established that strip search policies similar
to San Francisco’s are unconstitutional. In Ward, we con-
cluded that “the law was sufficiently clear in early 1981 so as
to expose a public official who unreasonably authorized blan-
ket strip searches of minor offense arrestees to civil liability
under 42 U.S.C. § 1983.” 791 F.2d at 1332 (emphasis added).
Although San Francisco’s policy included arrestees charged
with more serious offenses than those at issue in Ward, the
policy by definition also applied to minor offense arrestees,
such as those at issue in Ward. San Francisco’s policy
required strip searches of all arrestees who were classified for
transfer to the general population. Arrestees are “classified” if
they cannot post bail. Because some minor offenses do
require bail, any minor offense arrestee who was required to
post bail but was unable (or unable to post soon enough)
would be strip searched under San Francisco’s policy. As
Ward points out, we have long since established that strip
searches of such individuals, in absence of individualized sus-
picion, is unconstitutional.9
District courts in this circuit have also consistently recog-
nized that the law in this circuit has clearly established that
strip search policies like the one challenged here are unconstitu-
tional.10 See, e.g., Craft v. County of San Bernardino, 468
9
Again, in 1993 we reiterated:
At the time Appellants strip searched the Appellees, it was
clearly established in this circuit that it is unlawful to strip search
an arrestee brought to a jail facility on charges of committing a
minor offense, unless the officer directing the search possesses “a
reasonable suspicion that the individual arrestee is carrying or
concealing contraband.” Reasonable suspicion may be based on
“such factors as the nature of the offense, the arrestee’s appear-
ance and conduct, and the prior arrest record.”
Act Up!/Portland v. Bagley, 988 F.2d 868, 871-72 (9th Cir. 1993) (quot-
ing Giles, 746 F.2d at 617) (internal citations and footnote omitted).
10
Defendants cite Johannes v. Alameda County Sheriff’s Dept., 2006
WL 2504400, *12 (N.D. Cal. 2006) to argue that the state of the law in
11488 BULL v. CITY AND COUNTY OF SAN FRANCISCO
F.Supp.2d 1172, 1177 (C.D. Cal. 2006) (“At the outset, it is
worth noting that the Ninth Circuit has clearly recognized that
arrestees’ intermingling with other detained persons can
impact upon whether a given strip and/or visual body cavity
search is constitutionally permissible, but it cannot, by itself,
provide justification for such a search . . .”) (citing
Thompson, 885 at 1447); Wong v. Beebe, 2002 WL
31548486, *15 (D. Or. 2002)11 (“[W]ell before [arrestee’s]
strip and cavity search, it was clear that blanket strip search
policies are unconstitutional if justified by nothing more than
an arrest on suspicion of the commission of a felony or a
planned confinement in the general jail population.”) (citing
Kennedy, 901 F.2d at 713-15; Thompson, 885 F.2d at 1446-
47); Silvia v. Clackamas County, 2001 WL 34039482, *4 (D.
Or. 2001) (“Well before [arrestee’s] strip and cavity search,
it was clear that blanket strip search policies justified by noth-
ing more than arrest on suspicion of the commission of a fel-
ony or a planned confinement in the general jail population
are unconstitutional.”) (citing Fuller v. M.G. Jewelry, 950
F.2d 1437, 1445-46 (9th Cir. 1991); Kennedy, 901 F.2d at
713-15; Thompson, 885 F.2d at 1446-47).
Defendants argue that the large amount of documentary
evidence they have produced shows that the problem of
smuggled contraband is particularly acute in the San Fran-
cisco jails and thus distinguishes this case from others. Fur-
ther, defendants argue that because no other case has
this circuit was not clearly established. However, the district court opinion
in Johannes does not suggest that a policy such as San Francisco’s policy
might be constitutionally permissible. The Johannes court analyzed a strip
search policy as applied to an individual plaintiff and did not express an
opinion about the constitutionality of the policy on its face. The court con-
cluded that, among other factors, Johannes’ lengthy criminal history pro-
vided a valid basis for a strip search. Here, arrestees with similar criminal
histories are not included in the class.
11
In determining whether a particular right was clearly established, we
may also look to unpublished district court decisions. Sorrels v. McKee,
290 F.3d 965, 971 (9th Cir. 2002).
BULL v. CITY AND COUNTY OF SAN FRANCISCO 11489
confronted such a well-documented problem, even if San
Francisco’s policy was unconstitutional, the law was not
clearly established. In deciding whether the law was clearly
established, “[i]t is not necessary that the alleged acts have
been previously held unconstitutional, as long as the unlaw-
fulness [of the defendants’ actions] was apparent in light of
preexisting law.” Malik v. Brown, 71 F.3d 724, 727 (9th Cir.
1995). “Closely analogous preexisting case law is not
required to show that a right was clearly established.” White
v. Lee, 227 F.3d 1214, 1238 (9th Cir. 2000). The specific facts
of previous cases need not be materially or fundamentally
similar to the situation in question; rather, the salient question
is whether the state of the law at the time gives officials fair
warning that their conduct is unconstitutional. Hope v. Pelzer,
536 U.S. 730, 742 (2002).
[10] We have made it clear that in the Ninth Circuit strip
searches of pre-arraignment arrestees are unconstitutional in
the absence of reasonable individualized suspicion and that
reasonable suspicion requires consideration of factors such as
the nature of the offense, the arrestee’s appearance and con-
duct, and the arrestee’s criminal history. See, e.g., Act Up!,
988 F.2d at 871-72; Edgerly, 495 F.3d at 657. Moreover, we
have made it clear that placement in the general jail popula-
tion “by itself cannot justify a strip search.” Thompson, 885
F.2d at 1447. San Francisco’s policy was to strip search pre-
arraignment arrestees no matter how trivial the offense
charged and without reasonable suspicion solely because they
were to be classified for housing in the general population.
That such a blanket policy is a clear violation of the Constitu-
tion is clearly established by our precedent.
[11] The fact that San Francisco had documented a signifi-
cant problem of contraband smuggling does not muddy the
clarity of the law. The evidence Defendants produced to the
district court shows only that contraband smuggling was a
significant problem in San Francisco jails; it does not demon-
strate that persons eligible for inclusion in the class in this
11490 BULL v. CITY AND COUNTY OF SAN FRANCISCO
case contributed significantly, or even at all, to that problem.12
Therefore, San Franciso’s policy, and its justifications for that
policy, are not different enough from policies that we have
held unconstitutional, to suggest that the rights violated by
San Francisco’s policy were not clearly established. For these
reasons, Sheriff Hennessey is not entitled to qualified immu-
nity.
III
In conclusion we emphasize that our holding in no way pre-
vents correctional facilities from strip searching inmates
under permissible circumstances. Indeed, we do not today
even discuss the rights of those who are incarcerated after
having been convicted of a criminal offense. This case con-
cerns only pre-trial arrestees. Moreover, strip searches of
arrestees on the basis of their arrest for an offense involving
drugs, weapons, violence, or a violation of probation or
parole; criminal history involving drugs, weapons or violence
as specified by the district court; or another factor creating
individualized suspicion are not affected by our holding, as
these arrestees are excluded from the certified class. However,
a policy of strip searching arrestees based solely on their clas-
sification for housing in the general population violates the
arrestees’ clearly established constitutional rights, and we thus
affirm the district court’s denial of qualified immunity.
AFFIRMED.
IKUTA Circuit Judge, concurring:
I concur in the majority’s opinion with reluctance and
grave concern. While compelled by Ninth Circuit case law,
the disposition is in tension with Supreme Court precedent.
12
See supra Part II.A.
BULL v. CITY AND COUNTY OF SAN FRANCISCO 11491
Moreover, by disregarding the jail administrators’ urgent con-
cerns about a serious contraband smuggling problem, I agree
with the dissent that we are potentially putting lives in the San
Francisco detention system at risk.
A
In Bell v. Wolfish, the Court established basic principles for
analyzing the constitutionality of “restrictions and practices
that were designed to promote security and order” at a deten-
tion facility. 441 U.S. 520, 544 (1979). The Court made clear
that a detainee’s constitutional rights may be limited or
retracted to further the goal of “maintaining institutional
security and preserving internal order and discipline.” Id. at
546. Because of the fundamental importance of internal secur-
ity within a detention facility, “even when an institutional
restriction infringes a specific constitutional guarantee . . . the
practice must be evaluated in the light of the central objective
of prison administration, safeguarding institutional security.”
Id. at 546-47. Courts must accord “wide-ranging deference”
to the judgment of detention facility administrators “in the
adoption and execution of policies and practices that in their
judgment are needed to preserve internal order and discipline
and to maintain institutional security.” Id. at 547. Further, “in
the absence of substantial evidence in the record to indicate
that the officials have exaggerated their response to these con-
siderations, courts should ordinarily defer to their expert judg-
ment in such matters.” Id. at 548 (internal quotation marks
omitted).
Applying these principles to the petitioners’ Fourth
Amendment challenge, the Court upheld the detention facili-
ty’s policy of conducting a body-cavity search after a detainee
had a contact visit with a person outside the facility. The
Court made clear that a fact-intensive balancing test is neces-
sary to determine whether a practice is reasonable for Fourth
Amendment purposes:
11492 BULL v. CITY AND COUNTY OF SAN FRANCISCO
The test of reasonableness under the Fourth Amend-
ment is not capable of precise definition or mechani-
cal application. In each case it requires a balancing
of the need for the particular search against the inva-
sion of personal rights that the search entails. Courts
must consider [1] the scope of the particular intru-
sion, [2] the manner in which it is conducted, [3] the
justification for initiating it, and [4] the place in
which it is conducted.
Id. at 559 (bracketed numbers added). While acknowledging
that a body cavity search is intrusive, and that searches may
on occasion be conducted in an abusive fashion, the Court
focused primarily on the third and fourth factors: the unique
nature of a detention facility, which is “fraught with serious
security dangers,” id., and the central importance of maintain-
ing the institution’s security, which is a key principle in ana-
lyzing all constitutional challenges to detention facility
policies and practices, id. at 546-47. The Court then readily
concluded, after “[b]alancing the significant and legitimate
security interests of the institution against the privacy interests
of the inmates,” that the detention facility’s practice was rea-
sonable under the Fourth Amendment. Id. at 560.
In reaching this conclusion, the Court rejected the Second
Circuit’s analysis, which had focused on whether there was
sufficient evidence that detainees had smuggled contraband
into the facility. Because the administrators “proved only one
instance in the [detention facility’s] short history where con-
traband was found during a body-cavity search,” the Second
Circuit had held that the “gross violation of personal privacy
inherent in such a search cannot be outweighed by the govern-
ment’s security interest in maintaining a practice of so little
actual utility.” Id. at 558 (internal quotation marks omitted).
By contrast, the Court concluded that the lack of evidence of
actual contraband smuggling was of little import. Id. at 559.
BULL v. CITY AND COUNTY OF SAN FRANCISCO 11493
B
In this suit against the City and County of San Francisco,
Bell requires us to balance “the significant and legitimate
security interests of the institution” against the privacy rights
of the plaintiff class of pre-arraignment detainees. See id. at
560. As we have noted, the “intrusiveness of a body-cavity
search cannot be overstated. Strip searches involving the
visual exploration of body cavities is dehumanizing and
humiliating.” Kennedy v. Los Angeles Police Dept., 901 F.2d
702, 711 (9th Cir. 1990), abrogated on other grounds by
Hunter v. Bryant, 502 U.S. 224 (1991). On the other hand, as
correctly noted by the dissent, San Francisco has presented “a
compelling record of dangerous smuggling activity” indicat-
ing that there is a “pervasive problem that imposes a serious
security risk endangering both jail inmates and jail employ-
ees.” Dissent at 11498. San Francisco has emphasized that its
strip search policy is needed to help mitigate the smuggling
problems in the jail population. In considering whether the
policy was reasonable, we must defer to the judgment of the
jail administrators. See Bell, 441 U.S. at 547. If we did so, and
thereby followed the directive of the Supreme Court, we
would be compelled to uphold the strip search policy as rea-
sonable given the substantial evidence in the record illustrat-
ing the dire security needs facing the facility.
But Ninth Circuit precedent has wandered far from Bell, as
the dissent points out. Beginning in 1984 with Giles v. Acker-
man, 746 F.2d 614 (9th Cir. 1984), overruled on other
grounds by Hodgers-Durgin v. de la Vina, 199 F.3d 1037 (9th
Cir. 1999) (en banc), we disregarded Bell’s direction to give
the detention facility administrator’s needs for “safeguarding
institutional security” exceptional weight in determining
whether a search policy is reasonable. See Bell, 441 U.S. at
547. Instead, we held that a strip search of an arrrestee for a
minor offense was not constitutionally reasonable unless jail
officials had a specific basis for suspecting that individual of
smuggling. Giles, 746 F.2d at 615. Rejecting the district
11494 BULL v. CITY AND COUNTY OF SAN FRANCISCO
court’s conclusions and giving effectively no deference to the
jail officials’ views, we held as a matter of law that strip
searches of all arrestees booked into the jail at issue were “not
necessary to protect the institution’s security interest,” and
that “arrestees charged with minor offenses may be subjected
to a strip search only if jail officials possess a reasonable sus-
picion that the individual arrestee is carrying or concealing
contraband.” Id. at 617.
Although Giles may have justified its conclusion on the
basis of appellate fact-finding specific to that case, i.e., that
the jail facility in that case did not present security concerns,
the Giles rule subsequently took on a life of its own. In Ken-
nedy we concluded that the LAPD’s policy of conducting a
strip search of all felony arrestees violated the Fourth Amend-
ment. 901 F.2d at 710-14. Rather than give due weight to the
LAPD’s concerns “for safety, security, and the proper admin-
istration of the jail system,” id. at 713 (internal quotation
marks omitted), we faulted the LAPD for failing to present
class-specific information, stating that a “glaring omission
from the LAPD’s justification is any documentation (or even
assertion) that felony arrestees have attempted to smuggle
contraband into the jail in greater frequency than misdemea-
nor arrestees.” Id. at 713. Because the LAPD failed to adduce
evidence regarding “the likelihood of the arrestee’s conceal-
ing drugs, weapons, or contraband,” id. at 714, we held that
the LAPD’s policy could not be “reasonably related to the
penal institution’s interest in maintaining security,” id. at 713.
Similarly, in Thompson v. City of Los Angeles, 885 F.2d
1439 (9th Cir. 1989), we considered the Los Angeles Coun-
ty’s policy to strip search all new admittees to the county jail,
and held that the reasonableness of the search depended on
whether a specific arrestee’s offense was “sufficiently associ-
ated with violence to justify a visual strip search.” Id. at 1447.
In so holding, we rejected the County’s institutional concerns
regarding placing individuals “into contact with the general
jail population,” stating as a matter of law that “such a factor
BULL v. CITY AND COUNTY OF SAN FRANCISCO 11495
by itself cannot justify a strip search” because “such intermin-
gling is ‘both limited and avoidable.’ ” Id. (quoting Giles, 746
F.2d at 618).
In each of these cases, we gave short shrift to Bell’s focus
on the centrality of institutional security concerns and to its
instruction to defer to detention facility officials’ judgment
“in the absence of substantial evidence in the record to indi-
cate that the officials have exaggerated their response to these
considerations.” Bell, 441 U.S. at 548 (internal quotation
marks omitted). Instead of balancing individual privacy con-
cerns against the “significant and legitimate security interests
of the institution,” id. at 560, we have focused almost exclu-
sively on the question whether detention facility administra-
tors have an adequate basis for suspecting that individuals
may be smuggling contraband. In doing so, we have essen-
tially adopted the rationale of the Second Circuit, rejected by
Bell, which gave controlling weight to the lack of specific evi-
dence of a smuggling problem. In sum, the Ninth Circuit’s
balancing test bears little relation to Bell’s.
C
Applying this circuit’s balancing test to the facts in this
case, we could uphold San Francisco’s blanket policy of strip
searching the plaintiff class of pre-arraignment detainees only
if San Francisco presented some basis for suspecting that
class of smuggling contraband. Because I agree with the
majority that San Francisco has not adduced evidence of con-
traband smuggling specific to the plaintiff class, and because
I am bound by circuit precedent, I must reluctantly concur in
the majority’s determination that the strip search policy was
unconstitutional. See Cerrato v. San Francisco Cmty. Coll.
Dist., 26 F.3d 968, 972 n.15 (9th Cir. 1994) (“In the absence
of an en banc reversal or an intervening Supreme Court deci-
sion . . . we are bound by circuit law.”). Moreover, because
our circuit precedent clearly mandates this result, I must also
11496 BULL v. CITY AND COUNTY OF SAN FRANCISCO
concur in the majority’s determination that Sheriff Hennessey
is not entitled to qualified immunity.
This result, however, ignores San Francisco’s warnings that
the smuggling problems in the San Francisco detention sys-
tem are grave. It also ignores the jail administrators’ determi-
nation that mandatory strip searches of all persons entering
the general jail population are needed to address this problem.
By effectively eliminating such security concerns from our
calculus, we contradict Supreme Court precedent and com-
mon sense and take upon ourselves a role unsuited for the
courts. As the Supreme Court noted, judges must guard
against the all-too-human tendency “to believe that their indi-
vidual solutions to often intractable problems are better and
more workable than those of the persons who are actually
charged with and trained in the running of the particular insti-
tution under examination.” Bell, 441 U.S. at 562. Because we
have dangerously substituted our judgment for the judgment
of jail administrators, a reconsideration of our case law is
urgently needed.
TALLMAN, Circuit Judge, dissenting:
Our ship has sailed far from the course charted by the
United States Supreme Court in Bell v. Wolfish, 441 U.S. 520(1979). During the three-year period between April 2000 and
December 2003, the San Francisco Sheriff’s Department
(“San Francisco”) discovered over 1,000 items of contraband
smuggled into its general jail populations.1 In July 2005, an
1
The contraband was discovered during searches conducted by San
Francisco’s canine unit. Items found included: 662 pills of assorted con-
trolled substances; 106 shanks and weapons; 272 lighters and matches; 13
tattoo needles; 45 finds of rock cocaine (totaling 42.88 grams); 3 finds of
cocaine powder (totaling 2.75 grams); 10 finds of methamphetamine
(totaling 6.70 grams); 40 finds of marijuana (totaling 71.93 grams); 18
finds of heroin (totaling 6.24 grams and 6.79 milliliters); 24 gallons of
“pruno”; 4 hypodermic needles; and 4 ecstasy pills.
BULL v. CITY AND COUNTY OF SAN FRANCISCO 11497
inmate booked and classified at County Jail No. 9 died from
a cocaine overdose eleven days after he was transferred to
County Jail No. 2 for housing in the general population. The
inmate had been charged with felony domestic violence and
violating probation, and therefore was subject to a strip search
on admission to the booking facility under the Sheriff’s pol-
icy. There is no record that drugs were found on this inmate
during intake.
As the empirical evidence from jail operations now shows,
the underlying rationale for Ninth Circuit decisions in this
arena suffers from an inherent defect in basic logic. The
assumption is that arrestees booked for only minor or non-
violent offenses who will not be promptly released and must
be housed with the general inmate population are unlikely to
be carrying concealed contraband or dangerous weapons.
Experience teaches otherwise. The County’s2 smuggling prob-
lem is not isolated to those inmates booked for crimes involv-
ing drugs, weapons, or violence. The record is replete with
incidents of jail officials finding contraband during strip
searches of individuals arrested for “minor offenses”: public
drunkenness, public nuisance, loitering with intent to prosti-
tute, knowingly receiving stolen property, petty theft with a
prior offense, etc.3
2
I refer to the City and County of San Francisco collectively as “the
County.” Arrestees may include those taken into custody by law enforce-
ment agencies including the San Francisco Police Department and the
Sheriff’s Department.
3
Some of this information was taken from the record filed in a case
involving a similar challenge to the same strip search policy, Yourke v.
City and County of San Francisco, No. 06-16450. Yourke was dismissed
prior to oral argument for lack of jurisdiction. We granted San Francisco’s
motion to take judicial notice of portions of the Yourke record on appeal.
Accordingly, the record we now consider includes additional Sheriff’s
Department documents of smuggling incidents that supplement the Bull
record. Together, these records paint a bleak picture of responsible County
Jail officials struggling to adhere to ever stricter court decisions while
vainly trying to keep everyone safe from harm.
11498 BULL v. CITY AND COUNTY OF SAN FRANCISCO
We have never before been presented with such a compel-
ling record of dangerous smuggling activity. San Francisco
has demonstrated beyond cavil that the smuggling of drugs,
weapons, and other contraband into the general jail population
is a common and pervasive problem that imposes a serious
security risk endangering both jail inmates and jail employ-
ees. While acknowledging the existence of this evidence, the
majority extends Ninth Circuit restrictions and adopts a per se
rule requiring reasonable suspicion to strip search a pretrial
detainee transferred into the general population for housing
who does not otherwise meet the category of arrestees the
majority approves for strip-searching. But the newly-minted
rule runs contrary to Supreme Court precedent, impedes jail
administration, and further endangers the safety of jail
inmates and employees. Because I would conclude that San
Francisco’s policy of strip searching every arrestee transferred
into its general jail population for housing is reasonable under
the Fourth Amendment, I would find no constitutional viola-
tion from the strip search policy. I would also reverse the dis-
trict court’s denial of qualified immunity to Sheriff Michael
Hennessey. I therefore respectfully dissent.
I
In Bell v. Wolfish, 441 U.S. 520 (1979), the Supreme Court
considered the constitutionality of New York’s Metropolitan
Correctional Center’s (“MCC”) policy of strip searching
inmates following any contact visit with a person from out-
side the institution. Id. at 523, 528, 558-60. To support the
policy, “[c]orrections officials testified that visual cavity
searches were necessary not only to discover but also to deter
the smuggling of weapons, drugs, and other contraband into
the institution.” Id. at 558. During the policy’s “short history”
only one body-cavity search resulted in contraband being
found. Id.The Supreme Court nevertheless “[b]alanc[ed] the signifi-
cant and legitimate security interests of the institution against
BULL v. CITY AND COUNTY OF SAN FRANCISCO 11499
the privacy interests of the inmates” and held that the “visual
body-cavity inspections . . . contemplated by the MCC rules
can . . . be conducted on less than probable cause.” Id. at 560.
Even though the Court could “not underestimate the degree to
which these searches may invade the personal privacy of
inmates,” it concluded that the institution’s compelling secur-
ity interests justified the invasion of personal rights that
resulted. Id. at 559-60. As the Court explains:
A detention facility is a unique place fraught with
serious security dangers. Smuggling of money,
drugs, weapons, and other contraband is all too com-
mon an occurrence. And inmate attempts to secrete
these items into the facility by concealing them in
body cavities are documented in this record, and in
other cases. That there has been only one instance
where an MCC inmate was discovered attempting to
smuggle contraband into the institution on his person
may be more a testament to the effectiveness of this
search technique as a deterrent than to any lack of
interest on the part of the inmates to secrete and
import such items when the opportunity arises.
Id. at 559 (citations omitted).
Subsequent to Bell, we have considered several other strip
search policies, yet at no time have we considered a record as
fully developed and complete as that provided by San Fran-
cisco in support of its policy. In Giles v. Ackerman, 746 F.2d
614 (9th Cir. 1984) (per curiam), overruled on other grounds
by Hodgers-Durgin v. de la Vina, 199 F.3d 1037, 1040 n.1
(9th Cir. 1999) (en banc), we held “that arrestees for minor
offenses may be subjected to a strip search only if jail offi-
cials have a reasonable suspicion.” Id. at 615. The Giles panel
purported to follow Bell by claiming to balance “the security
needs of [the] local jail facilities against the privacy interests
of arrestees charged with minor offenses.” Id. at 617. Unlike
Bell, however, Giles concluded that the Idaho county failed to
11500 BULL v. CITY AND COUNTY OF SAN FRANCISCO
demonstrate that its security interests justified the serious
invasion of privacy created by its policy. Id. at 617.
The record reveals that the incidence of smuggling
activity at the Bonneville County Jail is minimal.
Evidence before the trial court indicates that of
approximately 3,500 persons searched at the jail in
the preceding 18-month period, only eleven persons
had concealed anything that warranted a report,
including the concealment of cigarettes. [The
county] cite[d] as significant only one discovery in
the course of 3,500 strip searches: a knife was found
cradled in the small of the back of an arrestee. [The
county] also cite[d] two instances from other parts of
the country (California and Mississippi) in which
matches were concealed on the person of detainees.
Id.
Based on the Idaho record, we also concluded that there
was no sign “whatsoever that the County’s strip search policy
could or did have any deterrent effect.” Id. We noted that “ar-
rest and confinement in the Bonneville County Jail are
unplanned events, so the policy could not possibly deter
arrestees from carrying contraband.” Id. Based on this record,
we rejected the county’s argument that the search was justi-
fied by the fact that Giles had been placed in the general jail
population. Id. at 618-19 (“[The county’s] heavy reliance on
the intermingling of its temporary detainees with the general
[jail] population is misplaced . . . because such intermingling
is both limited and avoidable.” (internal quotation marks
omitted; second alteration in original)).
We reached a similar conclusion in Kennedy v. Los Angeles
Police Department, 901 F.2d 702 (9th Cir. 1990), abrogated
on other grounds by Hunter v. Bryant, 502 U.S. 224 (1991)
(per curiam). There, we found unconstitutional the Los Ange-
les Police Department’s (“LAPD”) policy subjecting all
BULL v. CITY AND COUNTY OF SAN FRANCISCO 11501
arrestees on suspicion of having committed a felony to a strip
search, whether or not they were transferred to the general jail
population. Id. at 710, 713-14. We found no justification for
treating felony arrestees any differently than misdemeanor
arrestees, who were subject to a strip search only upon rea-
sonable suspicion. Id. at 714. There was simply no reasonable
relationship between the strip search and the LAPD’s alleged
security needs because the LAPD failed to provide “any docu-
mentation (or even assertion) that felony arrestees have
attempted to smuggle contraband into the jail in greater fre-
quency than misdemeanor arrestees.” Id. at 713.
The majority cites Giles as well as Thompson v. City of Los
Angeles, 885 F.2d 1439, 1447 (9th Cir. 1989), for the proposi-
tion that contact with the general jail population itself can
never justify a strip search. Maj. Op. at 11481-83. However,
neither case addressed a record as persuasive as that presented
by San Francisco, and both cases based their holdings on sep-
arate legal grounds, making their broad pronouncements
dicta. As discussed supra, our prior holding in Giles was
based primarily on the Bonneville County Jail’s failure to pro-
vide evidence to prove it had security concerns that warranted
such a severe invasion of privacy. See 746 F.2d at 617. With-
out a full and complete record, we were in no position to
determine as a matter of law that placement in a general jail
population could never by itself justify a strip search. “Where
it is clear that a statement is made casually and without analy-
sis, where the statement is uttered in passing without due con-
sideration of the alternatives, or where it is merely a prelude
to another legal issue that commands the panel’s full atten-
tion,” such a statement may be considered dicta. United States
v. Johnson, 256 F.3d 895, 915 (9th Cir. 2001) (en banc) (Koz-
inski, J.); cf. United States v. Ingham, 486 F.3d 1068, 1078
n.8 (9th Cir. 2007) (concluding that the court’s decisions on
ex post facto principles was not dicta when the court provided
a “careful three-page” analysis). The same holds true for our
analysis in Thompson. With absolutely no discussion of the
record, we cited Giles and simply stated that “contact with the
11502 BULL v. CITY AND COUNTY OF SAN FRANCISCO
general jail population . . . by itself cannot justify a strip
search.” Thompson, 885 F.2d at 1447. However, that state-
ment was not central to our holding, see Sanchez v. Mukasey,
521 F.3d 1106, 1110 (9th Cir. 2008) (discussing what consti-
tutes dictum), as we went on to conclude that the city’s search
in Thompson was nevertheless justified by reasonable suspi-
cion. See Thompson, 885 F.2d at 1447.4
Now, with a full and complete record, we are squarely con-
fronted with the question of whether transfer into the general
jail population alone can justify a strip search.5 Never has the
Supreme Court required reasonable suspicion of weapons or
contraband to justify a strip search of pretrial detainees bound
4
Contrary to the majority’s statement, I do not contend that the follow-
ing holding in Giles is dicta: “arrestees for minor offenses may be sub-
jected to a strip search only if jail officials have a reasonable suspicion
that the particular arrestee is carrying or concealing contraband or suffer-
ing from a communicable disease.” See Maj. Op. 11480-81 n.6. Although
I may have decided Giles differently, I nevertheless respect the decision’s
precedential value. Unlike the majority, however, I think the panel in Giles
unnecessarily went beyond the question presented when it stated that con-
tact with the general jail population alone can never justify a strip search.
This was a blanket conclusion without any analysis. Without a full and
complete record the court could not give due consideration to the issue.
Whether contact with the general jail population alone can ever justify a
strip search when the County here has trenchantly documented a pervasive
smuggling problem therefore remains an open question.
5
I must emphasize that San Francisco’s policy did not require the strip
search of every arrestee brought into County Jail No. 9. San Francisco’s
policy required only the search of those inmates who were classified for
housing and were going to be transferred into the general jail population.
Therefore, the other cases relied on by the majority are similarly distin-
guishable as they do not involve arrestees subsequently transferred to the
general population for housing. See Ward v. County of San Diego, 791
F.2d 1329, 1333 (9th Cir. 1985) (finding unconstitutional a blanket strip
search policy that allowed officials to search a detainee before a determi-
nation was made that she could be released on her own recognizance); Act
Up!/Portland v. Bagley, 988 F.2d 868, 871-72 (9th Cir. 1993) (holding
that it was clearly established law as of 1989 that “it is unlawful to strip
search an arrestee brought to a jail facility on charges of committing a
minor offense”).
BULL v. CITY AND COUNTY OF SAN FRANCISCO 11503
for the general prison population.6 See Bell, 441 U.S. at
559-60; see also Evans v. Stephens, 407 F.3d 1272, 1278-79
(11th Cir. 2005) (en banc); id. at 1285-86 (Carnes, J., spe-
cially concurring). While other circuits have held that transfer
into the general population on a misdemeanor charge without
more is insufficient to justify a strip search, see Evans, 407
F.3d at 1285 (Carnes, J., specially concurring) (collecting
cases),7 at least one of those circuits has openly questioned its
reasoning.
In Evans, the Eleventh Circuit went en banc to address its
case law holding that “[a]rrestees who are to be detained in
the general jail population can constitutionally be subjected to
a strip search only if the search is supported by reasonable
suspicion that such a search will reveal weapons or contra-
band.” Id. at 1278 (internal quotation marks omitted).
Because the en banc court decided the case on other grounds,
it never reached that question. Id. Nevertheless, it found the
need to state: “Most of us are uncertain that jailers are
required to have a reasonable suspicion of weapons or contra-
band before strip searching—for security and safety purposes
—arrestees bound for the general jail population.” Id. As dis-
cussed in more detail infra, Judge Carnes, joined by Judges
Dubina and Hull, elaborated further on this view in a special
concurrence.
There is no dispute that in addressing the constitutionality
6
Indeed, that was the basis for Justice Powell’s dissent in Bell. See 441
U.S. at 563 (Powell, J. dissenting) (“I join the opinion of the Court except
the discussion and holding with respect to body-cavity searches. In view
of the serious intrusion on one’s privacy occasioned by such a search, I
think at least some level of cause, such as a reasonable suspicion, should
be required to justify the anal and genital searches described in this
case.”).
7
I recognize that Evans cites our decision in Giles as standing for such
a proposition. However, as noted above, Giles’s statement regarding the
transfer of inmates into the general population is dictum and not binding
precedent.
11504 BULL v. CITY AND COUNTY OF SAN FRANCISCO
of this particular policy, we must “balanc[e] . . . the need for
the particular search against the invasion of personal rights
that the search entails.” Thompson, 885 F.2d at 1445. The pre-
vention of the introduction of weapons or other contraband
into jail facilities is an extremely weighty governmental inter-
est. Id. at 1446; see also Bell, 441 U.S. at 547, 559-60 (pre-
vention of smuggling of drugs, weapons, and other
contraband is a significant and legitimate prison security
interest); Evans, 407 F.3d at 1289 (discussing how smuggling
of contraband undermines jail security). In Evans, Judge Car-
nes discussed at length expert testimony provided in Dodge v.
County of Orange, 282 F. Supp. 2d 41 (S.D.N.Y. 2003),
remanded on other grounds, 103 Fed. Appx. 688 (2d Cir.
2004), a case addressing the constitutionality of a policy
requiring all pretrial detainees to be strip searched upon
admission to the county jail.8 In Dodge, both sides’ experts
agreed that “ ‘one of the primary objectives of any correc-
tional facility must be to prevent the introduction of “contra-
band” into a correctional facility due to the dangers that
contraband presents in a correctional setting.’ ” Evans, 407
F.3d at 1289 (quoting Dodge, 282 F. Supp. 2d at 46).
“ ‘Prison administrators therefore should be accorded wide-
ranging deference in the adoption and execution of policies
and practices that in their judgment are needed to preserve
internal order and discipline and to maintain institutional
security.’ ” Id. at 1289-90 (quoting Bell, 441 U.S. at 547).
8
Bound by Second Circuit precedent, the district court in Dodge ulti-
mately concluded that the strip search policy of the Orange County Cor-
rectional Facility in New York was unconstitutional. Nevertheless, the
district court felt obliged to record its disagreement with Second Circuit
precedent noting that the record in the Dodge case demonstrated that jail
administrators “face very real potential security concerns from any new
arrival.” 282 F. Supp. 2d at 82. The court went on to state that it was hard
for it “to articulate a principled reason why an inmate cannot be strip
searched without reasonable suspicion of contraband carriage when he
arrives at [the Orange County Correctional Facility] but can lawfully be
strip searched after a court date or during a cell shakedown on ‘less than
probable cause.’ ” Id. (citing Bell, 441 U.S. at 560).
BULL v. CITY AND COUNTY OF SAN FRANCISCO 11505
San Francisco has sufficiently demonstrated that smuggling
of contraband has resulted in a serious risk to inmates and jail
employees. The County discovered over 1,000 items of con-
traband during a three-year period starting in 2000. An inmate
died from a drug overdose apparently after he procured the
drug inside the jail. To further illustrate the problem, I detail
some of the incidents described in the record:
• April 29, 2000: Officials found a white “rock
like” object the size of a marble between the but-
tocks of a man arrested for obstructing a peace
officer, driving under the influence, and a parole
violation. The inmate grabbed and swallowed the
object, requiring a trip to the emergency room.
• August 1, 2001: Officials found a bag filled with
an unknown type of white pills in the mouth of
a woman arrested for shoplifting and on a war-
rant for forgery.
• August 10, 2001: Officials found a plastic baggie
containing several off-white rocks individually
wrapped in plastic in the buttocks area of a man
arrested for public drunkenness.
• June 23, 2002: Officials found a plastic bag con-
taining white powder inside the vagina of a
women arrested for receiving stolen property.
• January 15, 2003: Officials found a syringe con-
taining 20 cc’s of brown liquid in the anus of a
man arrested for a parole violation.
• November 29, 2003: Officials found a syringe in
the vagina of a female inmate arrested on an out-
of-county warrant for drunk driving.
11506 BULL v. CITY AND COUNTY OF SAN FRANCISCO
• December 29, 2003: Officials found a crack pipe
and case in the vagina of a woman arrested for
traffic violations.9
The majority struggles mightily to discount this record,
stating that there is no clear documentation proving a smug-
gling incident by an arrestee that would qualify as a member
of the Plaintiffs’ class. Maj. Op. 11483-85. The question in
Bell, however, was not whether the individual security risk of
one particular person warranted a search, but whether the
security risks of an entire institution justified the jail’s policy.
On this record, the majority cannot deny that San Francisco
faces an extensive smuggling problem. It nevertheless
assumes that San Francisco can remedy the smuggling prob-
lem, and overcome the security risks that problem creates,
without strip searching any member of Plaintiffs’ class even
though each class member is to be commingled with the gen-
eral jail population. With all due respect to my colleagues, the
fallacy of the assumption on which that conclusion is based
will endanger the safety of future inmates and jail employees.
As Judge Carnes explains in his special concurrence, and
as this record so forcefully demonstrates, the security risk to
jail facilities exists whether the inmate was arrested on a mis-
demeanor or a felony, or whether the inmate has a criminal
history or no prior record. Evans, 407 F.3d at 1291 (Carnes,
J., specially concurring). “ ‘[O]fficials at a county jail . . . usu-
ally know very little about the new inmates they receive or the
security risk they present at the time of their arrival.’ ” Id.(second alteration in original) (quoting Dodge, 282 F. Supp.
2d at 38). Moreover, there is no doubt that gang affiliation of
9
This list provides but a small sample of the twenty-eight incidents set
forth in the combined record of which we have taken judicial notice. See
supra n. 3. The location of the contraband items—whether it be in the
shoe, mouth, vaginal or anal cavity of the inmate being searched, see maj.
op. 11485 & n.8—does not change the fact that San Francisco faces a seri-
ous smuggling problem and the problem is not isolated to those offenders
arrested for crimes involving drugs, weapons, or violence.
BULL v. CITY AND COUNTY OF SAN FRANCISCO 11507
inmates is a serious security risk. Id. at 1289. Statistics of
inmate gang affiliation in San Francisco County Jails are not
provided in this record, but as an example, “[a]t the county
jail involved in the Dodge case there were at least fifty gang
members being held on any given day.” Id. “ ‘Gang members
are often more violent, dangerous, and manipulative than
other inmates, regardless of the nature of the charges against
them. They are also more likely than other inmates to attempt
to coerce family members or to coerce, cajole, or intimidate
lesser violators into smuggling contraband into the facility.’ ”10
Id. (alteration omitted) (quoting Dodge, 282 F. Supp. 2d at
48).
Inmates returning from a court appearance outside the jail
pose the same risk to the general jail population upon return
as do new arrestees coming in from the outside. The majori-
ty’s failure to recognize the current smuggling problem and
acknowledge the lengths that determined criminals will go to
smuggle contraband and weapons inside a jail or prison
merely highlights why the Supreme Court has continually told
us to give special deference to jail house administrators where
safety and security concerns are at issue. See, e.g., Bell, 441
U.S. at 562.
We must also consider the far ranging implications of the
majority’s rule on county jails located throughout our circuit.
San Mateo County Sheriff Don Horsley and the County of
San Mateo (“Amici”), defendants in another pending class
action lawsuit in the United States District Court, Northern
10
This evidence undermines the limited reasoning provided in Giles. See
746 F.2d at 617 (stating that “arrest and confinement in the Bonneville
County Jail are unplanned events, so the policy could not possibly deter
arrestees from carrying contraband”). We now know that inmates will go
to great lengths to get contraband into jail facilities, where the contraband
may be worth more than it is on the street. Therefore, a policy that requires
jail officials to strip search every transferee into the general jail population
will have more of a deterrent affect than the limited search policy our pre-
cedent now permits.
11508 BULL v. CITY AND COUNTY OF SAN FRANCISCO
District of California, filed an amicus brief in support of San
Francisco. Amici also had a policy of strip searching every
arrestee who was going to be housed in San Mateo County’s
general jail population.11 For a five-month period in 2004,
Amici seized forty-one items of contraband found during strip
searches conducted in San Mateo County Jails. Items confis-
cated as a result of these strip searches included the following:
a hypodermic needle secreted in an arrestee’s buttocks; a
razor blade found in a woman’s bra; a pocket knife found in
a woman’s bra; a small bag containing methamphetamine
inside a woman’s bra; suspected heroin secreted between an
inmate’s buttocks; and suspected methamphetamine secreted
between an inmate’s buttocks.
This evidence proves jail officials need greater flexibility
than Ninth Circuit jurisprudence permits to adequately
address the security risks they face in safely running county
lockups. San Francisco, San Mateo, and other county jails
across the country have not exaggerated the need for strip
searches. The Supreme Court has told us that an inmate’s con-
stitutional rights must yield to the legitimate penological and
safety concerns of the institution which houses commingled
pretrial detainees with sentenced prisoners. See Bell, 441 U.S.
at 547. By failing to give sufficient weight to the security risk
posed by the smuggling of contraband into jail facilities, the
majority has neglected to follow the Court’s directive to bal-
ance an institution’s security interests against the privacy
intrusion that undoubtedly takes place as a result of the intru-
sive search. See id. at 546-47.
Ninth Circuit jurisprudence has deviated far off the course
the Supreme Court has charted. Because San Francisco has
demonstrated that it faces a pervasive smuggling problem that
can only be mitigated by a policy requiring the search of
11
Sometime in 2003, in response to adverse judicial rulings, Amici
changed their strip search policy so that only arrestees charged with
crimes involving drugs, violence, or weapons are strip searched.
BULL v. CITY AND COUNTY OF SAN FRANCISCO 11509
every arrestee transferred for housing among the County’s
general jail population, I would hold that San Francisco’s jus-
tified safety interest outweighs the privacy intrusion caused
by such a search. It was reasonable under the Fourth Amend-
ment and resulted in no constitutional violation under the first
prong of Saucier v. Katz, 533 U.S. 194 (2001).
II
I also disagree with the majority’s conclusion regarding the
second prong of the qualified immunity inquiry, whether, in
light of clearly established law, a reasonable officer could
have known his/her conduct was unlawful. See id. at 201-02.
To answer this question we must determine “whether [Sheriff
Hennessey] could . . . have reasonably but mistakenly
believed that his . . . conduct did not violate a clearly estab-
lished constitutional right.” Jackson v. City of Bremerton, 268
F.3d 646, 651 (9th Cir. 2001).
“[R]easonableness under the Fourth Amendment is not
capable of precise definition or mechanical application.” Bell,
441 U.S. at 559. “We must therefore balance the security
needs of local jail facilities against the privacy interests of
arrestees charged with minor offenses to determine what
objective standard authorizes strip searching of arrestees.”
Giles, 746 F.2d at 617; see also Savard v. Rhode Island, 338
F.3d 23, 29 (1st Cir. 2003) (“The constitutional line that sepa-
rates permissible from impermissible uses of these methods is
imprecise and context-specific . . . . [P]lotting that line
requires a determination of what is reasonable under a given
set of circumstances.”).
Prior to today’s decision, we would balance the security
interest of the individual jail facility against the privacy inter-
ests of its arrestees. See Kennedy, 901 F.2d at 714 (concluding
that the LAPD failed to provide sufficient documentation to
justify its policy of strip searching every felony arrestee);
Giles, 746 F.2d at 617 (holding the arrestees’ privacy interests
11510 BULL v. CITY AND COUNTY OF SAN FRANCISCO
outweighed Bonneville County Jail’s security interests as the
record demonstrated that smuggling activity at that local jail
was minimal). Today’s ruling adopts a dangerous per se rule
notwithstanding the proven security needs of San Francisco
County Jails. When people are dying as a result of our errant
jurisprudence, it is time to correct the course of our law.
The contours of an arrestee’s Fourth Amendment right
when he or she is transferred into a jail’s general population
is debatable among reasonable jurists. Because there was no
clearly established law on this issue, and because San Fran-
cisco provided a record sufficient to distinguish this case from
our prior cases, I would hold that Sheriff Hennessey and his
department lacked “fair warning” that San Francisco’s policy
violates the Fourth Amendment. We should reverse the dis-
trict court’s order denying qualified immunity to Sheriff
Michael Hennessey.
I respectfully dissent.