Bull v. City and County of San Francisco , 539 F.3d 1193 ( 2008 )

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, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). During the three-year period between April 2000 and December 2003, the San Francisco Sheriffs Department (“San Francisco”) discovered over 1,000 items of contraband smuggled into its general jail populations.¹ In July 2005, an 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 Sheriffs policy. 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 problem is not isolated to those inmates booked for crimes involving 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 prostitute, knowingly receiving stolen property, petty theft with a prior offense, etc.³

We have never before been presented with such a compelling 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 employees. 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 violation from the strip search policy. I would also reverse the district court’s denial of qualified immunity to Sheriff Michael Hennessey. I therefore respectfully dissent.

I

In Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (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 outside the institution. Id. at 523, 528, 558-60, 99 S.Ct. 1861. To support the policy, “[cjorrections 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, 99 S.Ct. 1861. During the policy’s “short history” only one body-cavity search resulted in contraband being found. Id.

The Supreme Court nevertheless “[b]a-lanc[ed] the significant and legitimate security interests of the institution against 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, 99 S.Ct. 1861. 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 security interests justified the invasion of personal rights that resulted. Id. at 559-60, 99 S.Ct. 1861. 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 common 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, 99 S.Ct. 1861 (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 Francisco 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 arres-tees for minor offenses may be subjected to a strip search only if jail officials 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 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 “arrest 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 justified 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, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991) (per curiam). There, we found unconstitutional the Los Angeles Police Department’s (“LAPD”) policy subjecting all 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 arres-tees any differently than misdemeanor ar-restees, who were subject to a strip search only upon reasonable 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 documentation (or even assertion) that felony arres-tees have attempted to smuggle contraband into the jail in greater frequency 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 proposition that contact with the general jail population itself can never justify a strip search. Maj. Op. at 1196-98. However, neither case addressed a record as persuasive as that presented by San Francisco, and both cases based their holdings on separate 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 provide evidence to prove it had security concerns that warranted such a severe invasion of privacy. See 746 F.2d at 617. Without 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 analysis, where the statement is uttered in passing without due consideration of the alternatives, or where it is merely a prelude to another legal issue that commands the panel’s full attention,” such a statement may be considered dicta. United States v. Johnson, 256 F.3d 895, 915 (9th Cir.2001) (en banc) (Kozinski, 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 general jail population ... by itself cannot justify a strip search.” Thompson, 885 F.2d at 1447. However, that statement was not central to our holding, see Sanchez v. Mukasey, 521 F.3d 1106, 1110 (9th Cir.2008) (discussing what constitutes dictum), as we went on to conclude that the city’s search in Thompson was nevertheless justified by reasonable suspicion. See Thompson, 885 F.2d at 1447.⁴

Now, with a full and complete record, we are squarely confronted 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 for the general prison population.⁶ See Bell, 441 U.S. at 559-60, 99 S.Ct. 1861; see also Evans v. Stephens, 407 F.3d 1272, 1278-79 (11th Cir.2005) (en banc); id. at 1285-86 (Carnes, J., specially 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 “[ajrrestees 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 contraband.” 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 contraband before strip searching — for security and safety purposes — arrestees bound for the general jail population.” Id. As discussed 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 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 prevention of the introduction of weapons or other contraband into jail facilities is an extremely weighty governmental interest. Id. at 1446; see also Bell, 441 U.S. at 547, 559-60, 99 S.Ct. 1861 (prevention 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 Carnes 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 correctional facility must be to prevent the introduction of “contraband” 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, 99 S.Ct. 1861).

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 contraband 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 buttocks 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 warrant 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 containing white powder inside the vagina of a women arrested for receiving stolen property.

• January 15, 2003: Officials found a syringe containing 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.

• 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 smuggling incident by an arrestee that would qualify as a member of the Plaintiffs’ class. Maj. Op. at 1198-99. 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 problem, 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 general 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 misdemeanor 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). “ ‘[Officials at a county jail ... usually 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 48). Moreover, there is no doubt that gang affiliation of 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 majority’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, 99 S.Ct. 1861.

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 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 Ma-teo County Jails. Items confiscated 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 constitutional rights must yield to the legitimate peno-logical and safety concerns of the institution which houses commingled pretrial detainees with sentenced prisoners. See Bell, 441 U.S. at 547, 99 S.Ct. 1861. 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 balance an institution’s security interests against the privacy intrusion that undoubtedly takes place as a result of the intrusive search. See id. at 546-47, 99 S.Ct. 1861.

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 every arrestee transferred for housing among the County’s general jail population, I would hold that San Francisco’s justified safety interest outweighs the privacy intrusion caused by such a search. It was reasonable under the Fourth Amendment and resulted in no constitutional violation under the first prong of Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (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, 121 S.Ct. 2151. To answer this question we must determine “whether [Sheriff Hennes-sey] could ... have reasonably but mistakenly believed that his ... conduct did not violate a clearly established constitutional right.” Jackson v. City of Bremerton, 268 F.3d 646, 651 (9th Cir.2001).

“[Reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application.” Bell, 441 U.S. at 559, 99 S.Ct. 1861. “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 arres-tees.” Giles, 746 F.2d at 617; see also Savard v. Rhode Island, 338 F.3d 23, 29 (1st Cir.2003) (“The constitutional line that separates permissible from impermissible uses of these methods is imprecise and context-specific.... [Plotting 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 interests of its arrestees. See Kennedy, 901 F.2d at 714 (concluding that the LAPD faded 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 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 Francisco 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 district court’s order denying qualified immunity to Sheriff Michael Hennessey.

I respectfully dissent.

1 . The contraband was discovered during searches conducted by San Francisco’s canine unit. Items found included: 662 pills of assorted controlled 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.

2 . I refer to the City and County of San Francisco collectively as "the County.” Arrestees may include those taken into custody by law enforcement 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, 252 Fed.Appx. 179 (9th Cir.2007). 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.

4 . Contrary to the majority’s statement, I do not contend that the following holding in Giles is dicta: “arrestees for minor offenses may be subjected to a strip search only if jail officials have a reasonable suspicion that the particular arrestee is carrying or concealing contraband or suffering from a communicable disease,” See Maj. Op. at 1196 n. 6. Although I may have decided Giles differently, I nevertheless respect the decision's prece-dential value. Unlike the majority, however, I think the panel in Giles unnecessarily went beyond the question presented when it stated that contact 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 distinguishable as they do not involve arres-tees subsequently transferred to the general population for housing. See Ward v. County of San Diego, 791 F.2d 1329, 1333 (9th Cir. 1986) (finding unconstitutional a blanket strip search policy that allowed officials to search a detainee before a determination 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”).

6 . Indeed, that was the basis for Justice Powell's dissent in Bell. See 441 U.S. at 563, 99 S.Ct. 1861 (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.

8 .Bound by Second Circuit precedent, the district court in Dodge ultimately concluded that the strip search policy of the Orange County Correctional 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, 99 S.Ct. 1861).

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. 1199 & n. 8— does not change the fact that San Francisco faces a serious smuggling problem and the problem is not isolated to those offenders arrested for crimes involving drugs, weapons, or violence.

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 arres-tees 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 precedent now permits.

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.