Dianna Johnson v. Government of the DC

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Filed: August 1, 2014
No. 11-5115
DIANNA JOHNSON, ET AL.,
APPELLEES
RUBBIYA MUHAMMED, ET AL.,
APPELLANTS
v.
GOVERNMENT OF THE DISTRICT OF COLUMBIA AND TODD
DILLARD, INDIVIDUALLY AND OFFICIALLY, UNITED STATES
MARSHAL, D.C. SUPERIOR COURT,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:02-cv-02364)
On Petition for Rehearing En Banc
______
Before: GARLAND, Chief Judge, HENDERSON, ROGERS*,
TATEL, BROWN, GRIFFITH, KAVANAUGH, SRINIVASAN,
MILLETT*, PILLARD*, AND WILKINS*, Circuit Judges.
2
ORDER
Appellants’ petition for rehearing en banc and the responses
thereto were circulated to the full court, and a vote was
requested. Thereafter, a majority of the judges eligible to
participate did not vote in favor of the petition. Upon
consideration of the foregoing, it is
ORDERED that the petition be denied.
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
BY: /s/
Jennifer M. Clark
Deputy Clerk
*Circuit Judges Millett and Wilkins did not participate in this
matter.
*Circuit Judge Rogers would grant the petition for rehearing en
banc.
*A statement by Circuit Judge Pillard, concurring in the denial
of rehearing en banc, is attached.
*A statement by Circuit Judge Rogers, dissenting from the
denial of rehearing en banc, is attached.
PILLARD, Circuit Judge, concurring in the denial of
rehearing en banc: This case was brought by a plaintiff class
of approximately 1,600 women arrested between 1999 and
2003 in the District of Columbia for non-violent, non-drug
minor offenses (such as traffic stops) who were held briefly at
the D.C. Superior Court cellblock. Each of these women was
subject to a visual body-cavity strip search pending her
appearance before a judge or magistrate. The plaintiffs seek
rehearing en banc of the panel decision dismissing their
Fourth Amendment Bivens claims. Those claims challenge
the practice of the former U.S. Marshal for the D.C. Superior
Court of conducting pre-arraignment body-cavity searches of
women, but not men, without any warrant or even
individualized suspicion that the women were carrying
contraband in their body cavities. Our court, in Bame v.
Dillard, 637 F.3d 380 (D.C. Cir. 2011), and in this case
following Bame, held that any constitutional rights the
Marshal may have violated were not clearly established,
entitling him to qualified immunity. Plaintiffs challenge the
panel decision as erroneous and in conflict with Bell v.
Wolfish, 441 U.S. 520 (1979), and Florence v. Board of
Chosen Freeholders, 132 S. Ct. 1510 (2012), and as contrary
to the consensus of every other circuit to have addressed the
issue of the constitutionality of the type of suspicionless
body-cavity searches in this case.
Despite the importance of the constitutional question, I
concur in the decision to deny en banc review. This is a suit
for damages, but prospective factors also enter our
consideration whether to grant review. The U.S. Marshal for
the D.C. Superior Court has ceased the challenged practice of
routine, suspicionless visual body-cavity searches of female
arrestees, thereby limiting the practical importance of the
panel’s holding. See Fed. R. App. P. 35(a). In following this
court’s prior decision in Bame, 637 F.3d 380, as it was bound
to do, the panel decision—insofar as it goes—replicates a
context-specific legal error limited to the qualified immunity
2
issue, which has not otherwise been repeated in this Circuit. I
write briefly to explain why I believe that the decision in
Bame, and thus Johnson, is wrong and should not be taken to
suggest that qualified immunity would be available were the
Superior Court Marshal to resurrect the challenged practice.
I.
The visual body-cavity search policy and practice
challenged in both Bame and this case has been abandoned by
the Superior Court Marshal, who agreed under pressure of
litigation to conform his conduct to the U.S. Marshals Service
policy, see Oral Arg. Rec. at 57:26-59:60, Johnson v. District
of Columbia, 734 F.3d 1194 (D.C. Cir. 2013) (No. 11-5115),
which requires reasonable suspicion before any strip search.1
Other incarcerating authorities in our Circuit also require
reasonable suspicion for body-cavity searches. For example,
the Bureau of Prisons forbids suspicionless visual body-cavity
searches of persons arrested for misdemeanors or held in civil
contempt, and requires that such arrestees be held separately
from the general prison population. See Florence, 132 S. Ct.
at 1524 (Alito, J., concurring) (citing Br. for the United States
as Amicus Curiae Supporting Respondents at 30, Florence,
132 S. Ct. 1510 (No. 10-945), 2011 WL 3821404). Both
1
See Br. for Federal Appellee at 59 n.17, Johnson, 734 F.3d 1194
(No. 11-5115), 2013 WL 621948; U.S. Marshals Serv., Policy
Directives – Prisoner Operations, Prisoner Custody – Body
Searches § 9.1(E)(3) (2010), http://www.usmarshals.gov/foia/
directives/prisoner_ops/body_searches.pdf (“Strip searches on
prisoners in custody are authorized when there is reasonable
suspicion that the prisoner may be (a) carrying contraband and/or
weapons, or (b) considered to be a security, escape, and/or suicide
risk.”); U.S. Marshals Serv., Policy Directive No. 99-25 (1999)
(same).
3
Immigration and Customs Enforcement and the Bureau of
Indian Affairs also require reasonable suspicion before visual
body-cavity searches.2 The restraint codified in those policies
makes good sense. Strip searches are a particularly severe
and degrading form of search. They are imposed at grave
human cost, even when they are constitutionally justified.
The searches at issue in this case, although sometimes
referred to by the shorthand “strip search,” were of a
particularly invasive type, involving close visual scrutiny of
arrestees’ body cavities. Johnson, 734 F.3d at 1197. The
term “strip search” can be an umbrella term, used in judicial
decisions and elsewhere to refer to various types of searches
of varying intrusiveness. See Florence, 132 S. Ct. at 1515
(noting that “[t]he term is imprecise”). This case involves
practices far more intrusive than naked shower “strip
searches” of incoming groups of inmates, in which guards
stand several yards back to supervise lice shampoo
application and check for wounds or gang tattoos before
convicts enter prison. See generally Tr. of Oral Arg. at 16:13-
17:3, Florence, 132 S. Ct. 1510 (No. 10-945) (counsel for
Florence) (distinguishing such practices as more readily
justified). The policy challenged here, in contrast, required
plaintiffs to remove their clothing, squat to expose their
vaginas, and cough in order to dislodge anything they might
be hiding inside while officials, looking for potential
2
See Immigration and Customs Enforcement (ICE), Performance-
Based National Detention Standards 2011, at § 2.10, at 142 (2013),
available at http://www.ice.gov/detention-standards/2011; Office of
Justice Servs., Bureau of Indian Affairs, BIA Adult Detention
Facility Guidelines (Draft), at 22-23 (2010), available at
http://www.niccsa.org/downloads/TLOA/BIAADULTDETENTIO
NFACILITYGUIDELINES.pdf.
4
contraband, individually scrutinized plaintiffs’ genitalia at
approximately arms’ length. See Johnson, 734 F.3d at 1197.
Official policy demanding that a person strip naked and
crouch or bend to expose her vagina or anus for prison
personnel’s close inspection is a humiliating invasion that
offends bodily autonomy and may cause lasting psychological
harm. See Florence, 132 S. Ct. at 1524 (Alito, J., concurring)
(“Undergoing such an inspection is undoubtedly humiliating
and deeply offensive to many . . . .”); Bell, 441 U.S. at 558
(“Admittedly, this practice instinctively gives us the most
pause.”); id. at 563 (Powell, J., concurring in part and
dissenting in part) (“In view of the serious intrusion on one’s
privacy occasioned by [a body-cavity 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.”). The Seventh Circuit has described such searches
as “demeaning, dehumanizing, undignified, humiliating,
terrifying, unpleasant, embarrassing, repulsive, signifying
degradation and submission,” explaining that “few exercises
of authority by the state . . . intrude on the citizen’s privacy
and dignity as severely as the visual anal and genital searches
practiced here.” Mary Beth G. v. City of Chicago, 723 F.2d
1263, 1272 (7th Cir. 1983) (citation and quotation marks
omitted); see generally Br. for Psychiatrists as Amici Curiae
in Support of Petitioner, Florence, 132 S. Ct. 1510 (No. 10-
945), 2011 WL 2593462 (describing the severe, often lasting
psychological harm to individuals’ sense of self from
mandated strip searches of body parts that, from an early age,
we most privately and consistently conceal from strangers). It
may be hoped, therefore, that the policy decisions of District
of Columbia and federal officials have put an end to the kind
of practice challenged in this case without further litigation.
5
II.
Another factor that counsels against en banc review is
that neither Johnson nor Bame made an error of constitutional
dimension; the decision in each case rests only on the law’s
putative lack of clarity to dismiss the claims as barred by
qualified immunity. Sometimes constitutional avoidance is
the preferable path in these circumstances. See Pearson v.
Callahan, 555 U.S. 223, 236-39 (2009) (discussing factors
that may make litigation over the constitutional question
unnecessary or ill-advised). The Supreme Court, however,
recognizes a special exception to the constitutional avoidance
rule for qualified immunity cases. That exception assures that
development of constitutional precedent is not delayed in
doctrinal areas where qualified immunity is frequently
dispositive. See Plumhoff v. Rickard, 134 S. Ct. 2012, 2020
(2014) (addressing the constitutional merits first to aid in
“‘develop[ing] constitutional precedent’ in an area that courts
typically consider in cases in which the defendant asserts a
qualified immunity defense” (brackets in original) (quoting
Pearson, 555 U.S. at 236)). The Court has emphasized that
addressing the merits of the constitutional claim “is often
beneficial,” even in cases decided on the ground that the law
is not clearly established. Pearson, 555 U.S. at 236; see also
Camreta v. Greene, 131 S. Ct. 2020, 2032 (2011). This court
accordingly has discretion to decide which of the two prongs
in a qualified immunity case should be addressed first:
whether the asserted constitutional right exists in the context
of the particular case, or whether any such right was
sufficiently clearly established at the time of the challenged
conduct to overcome qualified immunity. The panels’
decisions in Bame and this case to avoid the merits of the
Fourth Amendment question and decide only on grounds of
legal unclarity limits the impact of the panel decision, and so
further diminishes the need for rehearing en banc.
6
But the choice to avoid the merits question in Bame,
followed here, was not without cost. It took us another step
down the very path the Supreme Court has warned against, by
“fail[ing] to give guidance to officials about how to comply
with legal requirements.” Camreta, 131 S. Ct. at 2031. Two
panels of our court have held that no clearly established law
requires even individualized suspicion before imposing visual
body-cavity searches on arrestees held temporarily in holding
cells outside the arraignment courtrooms at the D.C. Superior
Court. Johnson, 734 F.3d at 1204 (citing Bame, 637 F.3d
380). Given the Superior Court Marshal’s persistence in
using these degrading searches, a decision in Bame on the
constitutional merits would have provided useful guidance.
The Superior Court Marshal imposed a blanket, suspicionless
strip-search policy despite the U.S. Marshals Service policy’s
reasonable suspicion requirement, see supra note 1, which
was binding on him as a federal official. The Marshal instead
mistakenly and unlawfully, going back to at least the early
1980s, conducted blanket strip searches in the face of repeated
constitutional challenges. 3 Avoidance of litigation risk—
rather than any determination that the policy was either
inappropriately intrusive or unconstitutional—appears to have
motivated the Superior Court Marshal’s abandonment of the
strip-search policy challenged here. See, e.g., Oral Arg. Rec.
at 57:26-59:50, Johnson, 734 F.3d 1194 (No. 11-5115). By
repeatedly bypassing the merits of the constitutional
3
Bame v. Dillard, 647 F. Supp. 2d 43, 51-52 (D.D.C. 2009)
(explaining Marshal Dillard’s practice of routinely performing
“strip searches of all detained arrestees during the entire
thirteen years he was Marshal”); see, e.g., Morgan v. Barry,
596 F. Supp. 897, 899 (D.D.C. 1984) (referring to consent
order requiring reasonable suspicion for visual body-cavity
searches).
7
challenge, the panel decisions fail to promote law-abiding
behavior and could be construed to countenance violations.
See Camreta, 131 S. Ct. at 2031. Accordingly, because a
decision based on qualified immunity alone provides
equivocal constraint and because, in my view, the Marshal’s
policy violated plaintiffs’ Fourth Amendment rights, I believe
the Bame panel should, at a minimum, have announced the
constitutional rule before any conclusion that the prohibition
was not clearly established. Such a decision would have
erected a firmer barrier against the reinstatement of these
search practices.
Moreover, in my view, the challenged visual body-cavity
searches were clearly unconstitutional at the time they were
conducted, and remain so today. The Fourth Amendment
protects the people from “unreasonable searches,” shielding
our bodily privacy from warrantless searches with only “a few
specifically established and well-delineated exceptions.” Katz
v. United States, 389 U.S. 347, 357 (1967); see Riley v.
California, Nos. 13-132, 13-212, 2014 WL 2864483, at *6
(U.S. June 25, 2014) (“In the absence of a warrant, a search is
reasonable only if it falls within a specific exception to the
warrant requirement.”). Bame relied on the exception
established in Bell, which the Court affirmed in Florence, but
no circuit has ever applied those decisions’ approval of
blanket search policies of persons entering general prison
populations to detainees like plaintiffs here, who were held
apart from any general population of prisoners.
The Supreme Court in Bell sustained a policy of strip
searching everyone in a mixed correctional facility population
immediately after voluntary, loosely monitored contact visits.
See 441 U.S. at 524-26, 559 & n.40. The Metropolitan
Correctional Center in Bell—a “unique place fraught with
serious security dangers”—jointly housed pretrial detainees
8
with convicted prisoners. Id. at 524, 559. The Court’s most
recent approval of strip-search policies in Florence, in the
context of searching an arrestee entering general prison
populations at two large facilities, rejected a proposed
exception for minor, non-violent offenders from otherwise
blanket policies requiring visual body-cavity searches.
Florence, 132 S. Ct. at 1520. But eight justices agreed that
the Court was not approving the constitutionality of strip
searching arrestees held apart from the general prison
population.4 Thus, Bell did not reach the distinct question of
the constitutionality of searching arrestees in this particularly
4
See Florence, 132 S. Ct. at 1522-23 (plurality opinion) (Kennedy,
J., joined by Roberts, C.J., Scalia & Alito, JJ.) (“This case does not
require the Court to rule on the types of searches that would be
reasonable in instances where, for example, a detainee will be held
without assignment to the general jail population and without
substantial contact with other detainees.”); id. at 1523 (Roberts,
C.J., concurring) (reiterating that, “[a]s with Justice Alito, . . . it is
important for me that the Court does not foreclose the possibility of
an exception to the rule it announces,” and emphasizing that
Florence was detained pursuant to an arrest warrant and that “there
was apparently no alternative . . . to holding him in the general jail
population”); id. at 1524 (Alito, J., concurring) (“I join the opinion
of the Court but emphasize the limits of today’s holding. The Court
holds that jail administrators may require all arrestees who are
committed to the general population of a jail to undergo visual strip
searches not involving physical contact by corrections officers.”
(emphasis in original)); see also id. at 1532 (Breyer, J., joined by
Ginsburg, Sotomayor, & Kagan, JJ., dissenting) (“[I]t remains open
for the Court to consider whether it would be reasonable to admit
an arrestee for a minor offense to the general jail population, and to
subject her to the humiliation of a strip search, prior to any review
by a judicial officer.” (quotation marks omitted)).
9
intrusive manner when they are held apart from the general
population, and Florence is expressly limited on that point.
Meanwhile, in the decades after Bell, ten federal courts of
appeals held that persons arrested for minor, non-drug, non-
violent offenses who were not introduced into the general
prison population could not be subjected to invasive strip
searches without reasonable suspicion. See Roberts v. Rhode
Island, 239 F.3d 107, 112-13 (1st Cir. 2001); Weber v. Dell,
804 F.2d 796, 802 (2d Cir. 1986); Logan v. Shealy, 660 F.2d
1007, 1013 (4th Cir. 1981); Stewart v. Lubbock Cty. Tex., 767
F.2d 153, 156-57 (5th Cir. 1985); Masters v. Crouch, 872
F.2d 1248, 1255 (6th Cir. 1989);5 Mary Beth G., 723 F.2d at
1272-73; Jones v. Edwards, 770 F.2d 739, 742 (8th Cir.
1985); Giles v. Ackerman, 746 F.2d 614, 616-18 (9th Cir.
1984) (per curiam);6 Hill v. Bogans, 735 F.2d 391, 394 (10th
Cir. 1984); Wilson v. Jones, 251 F.3d 1340, 1343 (11th Cir.
2001). 7 Florence abrogated some of those decisions to the
extent they required that persons arrested on minor offenses
5
But see T.S. v. Doe, 742 F.3d 632, 636-37 (6th Cir. 2014)
(abrogating Masters in light of Florence). T.S. v. Doe does not,
however, address Florence’s express reservation of decision on the
ground relied on here: that plaintiffs were not introduced into the
general prison population with its attendant heightened security
concerns.
6
But cf. Bull v. City and Cnty. of San Francisco, 595 F.3d 964, 977
(9th Cir. 2010) (en banc) (abrogating Giles, but only to the extent
that detainees were to enter the general prison population).
7
But cf. Powell v. Barrett, 541 F.3d 1298, 1307, 1314 (11th Cir.
2008) (en banc) (abrogating Wilson in context of detainees being
booked into the general population of the detention facility).
10
be excepted from blanket strip searches even when they were
entering a general prison population; Florence did not,
however, disturb recognized Fourth Amendment restrictions
against such searches of persons held apart from the general
prison population.
Notably, no circuit has sustained a blanket policy of strip
searching arrestees who are not introduced into a general
prison population. The circuit decisions cited in Dillard’s
brief that sustained strip searches are no exception. See Bull
v. City & County of San Francisco, 595 F.3d 964 (9th Cir.
2010) (en banc); Powell v. Barrett, 541 F.3d 1298 (11th Cir.
2008) (en banc). Powell involved detainees being booked
into the general population of the detention facility, 541 F.3d
at 1302; it provides no authority for suspicionless strip
searches of the Superior Court arrestees in this case. And Bull
emphasized that its approval of suspicionless strip searches
“applies only to detainees classified to enter the general
corrections facility population.” 595 F.3d at 981 n.17. There
is simply no case from any circuit authorizing what the
Marshal did here. It thus remains clear under the Fourth
Amendment that the searches in both Bame and Johnson of
persons not held in the general population of any prison
cannot be justified without at least individualized suspicion.
Marshal Dillard nonetheless contends that Florence
applies here despite the Supreme Court’s limitation of its
holding to persons intermingled with the general prison
population, on the ground that the plaintiffs “were in what
was viewed in Superior Court as general population.” Todd
Dillard’s Opp’n to Rehearing and Rehearing En Banc at 7,
Johnson, 734 F.3d 1194 (No. 11-5115). It was, however,
undisputed that the class members in this case were not held
in a general prison population, but were released “without
spending any time in general jail populations.” Johnson, 734
11
F.3d at 1202 (citing Bame, 637 F.3d at 382-83). The District
Court specifically distinguished the factual scenarios in
Florence, Bull, and Powell as involving prisoners who “were
about to be entered into, or co-mingled with, a general jail or
detention facility population” whereas this case involved
Superior Court arrestees, most of whom “were only held
temporarily at the D.C. Superior Court and then either
released from the courtroom the same day or transferred to the
D.C. Jail.” Johnson v. District of Columbia, 780 F. Supp. 2d
62, 74 (D.D.C. 2011); see also Bame v. Dillard, 647 F. Supp.
2d 43, 49 (D.D.C. 2009) (noting that the plaintiffs “were
placed in holding cells again, exclusively with one another.
They were not commingled with the general inmate
population.”); id. at 53 (plaintiffs were “held together at all
times and not commingled with the general inmate
population”). Indeed, as we recognized, “[r]oughly eighty
percent of female arrestees were released following
[arraignment] hearings” and thus never were sent to the
general population at the D.C. Jail. Johnson, 734 F.3d at
1197. That fact clearly and materially distinguishes Bame and
this case from those that Dillard cites.
Our constitutional protections against visual body-cavity
searches, though narrow, are far from insignificant. When we
bear in mind the breadth of the government’s constitutional
latitude to search people in the interests of safety, the
importance of those limits the Constitution does impose is
even more vivid. The Fourth Amendment permits a
warrantless arrest whenever an officer has probable cause to
believe a person has committed a criminal offense, no matter
how minor, Atwater v. City of Lago Vista, 532 U.S. 318, 354
(2001), and deference to prison security permits blanket
visual body-cavity strip searches of detainees placed in the
general prison population, Florence, 132 S. Ct. at 1522-23.
But the government’s power to search our bodies is not
12
unlimited. Security concerns regarding arrestees held at the
Superior Court cellblock while they wait to appear in court,
all of whom are innocent until proven guilty, cannot be
equated with the challenges of managing a prison population
of convicted prisoners or persons awaiting trial but judicially
determined unsafe for release on bail. Searching body
cavities of presumptively non-dangerous arrestees to prevent
them from carrying contraband to a presumptively dangerous
general jail population is a security rationale that wanes when
such arrestees are—as they reasonably should be—segregated
from other prisoners. Bell and Florence’s approval of strip
searches in the former context does not justify their approval
in the latter context, as every circuit to address the issue, other
than ours, has recognized.
III.
In any event, the panel’s decision that the law was
unclear should not be understood to leave the door open to
future suspicionless body-cavity searches at the Superior
Court. The panel in this case was bound by Bame’s qualified
immunity analysis. Johnson, 734 F.3d at 1204 (commenting
that there was “no daylight between the claims we rejected in
Bame and the ones Fourth Amendment Class members press
here”). Thus, the error of Bame’s application of qualified
immunity (followed by the panel in this case) warrants
explication.
In general terms, Bame correctly stated that law
enforcement officials are entitled to rely on Supreme Court
precedent, so that “when a precedent of the Supreme Court
supports the lawfulness” of an official’s conduct, “a
consensus among the courts of appeals” to the contrary cannot
vitiate qualified immunity. 637 F.3d at 386. Bame—and
hence Johnson—held that the challenged policy was not
13
clearly unconstitutional because the Supreme Court had
approved a blanket strip-search policy in Bell. Bame erred,
however, in reading the Supreme Court’s decision in Bell to
“support[] the lawfulness” of the Marshal’s visual body-
cavity searches. See id. Whether an official has violated law
that is “clearly established,” and so renders qualified
immunity unavailable, “depends substantially upon the level
of generality at which the relevant ‘legal rule’ is to be
identified.” Anderson v. Creighton, 483 U.S. 635, 639
(1987). The qualified immunity inquiry, the Supreme Court
has emphasized, “must be undertaken in light of the specific
context of the case, not as a broad general proposition.”
Saucier v. Katz, 533 U.S. 194, 201 (2001). What matters is
applicable precedent governing the right “in a more
particularized, and hence more relevant, sense.” Anderson,
483 U.S. at 640. Just as a plaintiff cannot assert that a right is
clearly established by framing his claim at a very high level of
generality (“the Fourth Amendment is clearly established”),
so, too, an official cannot sidestep a consensus of factually
particular and thus more closely analogous circuit cases (“the
Fourth Amendment bars blanket suspicionless strip searches
of arrestees held apart from the general prison population”) by
adverting to a Supreme Court case involving a factually
different problem, and simply redescribing it at a higher level
of generality (“blanket strip searches of detainees are
constitutional”). Correct application of Bell, the Court’s more
recent decision in Florence, and the persuasive and
unanimous circuit authority is contrary to Bame’s qualified
immunity analysis. See supra Part II.
Bell established the general balancing test that courts
must apply when considering the constitutionality of a strip
search, 441 U.S. at 559, but neither Bell nor Florence
authorizes blanket strip-search policies in every detention
context. The critical difference between the policies sustained
14
in Bell and Florence and the policy challenged in Bame and
this case is that, here, the plaintiffs were not entering any
general prison population. The limited exceptions charted by
Bell and Florence to the Fourth Amendment’s requirement of
individualized justification for searches, in addition to the
holdings of the circuits that applied the Bell balancing test to
invalidate blanket, suspicionless strip searches of arrestees not
held in general prison populations, should have more than
sufficed to form “a consensus of cases of persuasive
authority” vitiating qualified immunity here. See Wilson v.
Layne, 526 U.S. 603, 617 (1999).
In the abstract, however, Johnson’s articulation of the
qualified immunity standard is consistent with Supreme Court
and this court’s precedent. Johnson, 734 F.3d at 1201-02; see
also Bame, 637 F.3d at 384 (stating that, to determine
qualified immunity, “we look to cases from the Supreme
Court and this court, as well as to cases from other courts
exhibiting a consensus view—if there is one” (citation and
quotation marks omitted)). Because this court’s qualified
immunity error was in application rather than articulation of
the standard, and because the panel did not uphold as
constitutional the invasive—and in my view
unconstitutional—practices at issue here, I join in concluding
that the panel decision does not present the extraordinary
circumstances warranting en banc review.
ROGERS, Circuit Judge, dissenting from the denial of
rehearing en banc: The Supreme Court has emphasized that the
“regular policy” of constitutional avoidance in aid of judicial
restraint “sometimes does not fit the qualified immunity
situation because it threatens to leave standards of official
conduct permanently in limbo.” Camreta v. Greene, 131 S. Ct.
2020, 2031 (2011). This case illustrates that concern. All ten of
the circuit courts of appeal to address the Fourth Amendment
issue have held for over a decade that strip searching individuals
arrested for non-violent, non-drug offenses who have not yet
appeared before a judicial officer and will not enter into the
general detained population is unconstitutional in the absence of
reasonable suspicion they are carrying contraband. See Bame,
et al. v. Dillard, 637 F.3d 380, 391–92, 395 (D.C. Cir. 2011)
(Rogers, J., dissenting) (citing cases). So have the federal
district court here, see Doe v. Berberich, 704 F. Supp. 269,
271–72 (D.D.C. 1988) (Bivens claim, citing Fifth, Seventh, and
Ninth Circuits); Helton v. United States, 191 F. Supp. 2d 179,
185 (D.D.C. 2002) (tort claim against U.S. Marshal, citing ten
federal circuit courts of appeal); see also Morgan v. Barry, 596
F. Supp. 897, 899 (D.D.C. 1984) (consent order), and, more
recently, the D.C. Court of Appeals, the District of Columbia’s
highest court, see United States v. Scott, 987 A.2d 1180,
1196–97 (D.C. 2010). (The Third Circuit has not reached the
issue; the Federal Circuit is unlikely to have the occasion to do
so.)
Yet the legality of the practice remains uncertain in this
Circuit because in two sequential class action lawsuits this court
has applied the canon of constitutional avoidance and disposed
of the appeals on qualified immunity grounds. See Johnson, et
al. v. Dist. of Columbia & Dillard, 734 F.3d 1194, 1204 (D.C.
Cir. 2013); id. at 1205–07 (Rogers, J. concurring in part and
concurring in the judgment (hereinafter “Rogers, J.”)); Bame,
637 F.3d at 386; id. at 388 (Rogers, J., dissenting). This
uncertainty exists even though at the time of the challenged strip
searches the United States Marshal for the D.C. Superior Court
2
was not free to ignore, in light of the “consensus of cases of
persuasive authority,” Wilson v. Layne, 526 U.S. 603, 617
(1999), that his blanket strip search policy was unconstitutional.
As a “reasonably competent public official,” Harlow v.
Fitzgerald, 457 U.S. 800, 819 (1982), the United States Marshal
“should [have] know[n] the law governing his conduct,” id., and
therefore “could not have believed that his actions were lawful,”
Wilson v. Layne, 526 U.S. at 617. The court’s position in Bame,
637 F.3d at 386 — that the unanimous conclusion of ten circuits
prior to the time of the challenged strip searches was insufficient
to “clearly establish[],” Wilson v. Layne, 526 U.S. at 606, the
illegality of the United States Marshal’s actions as to non-
detained arrestees — can hardly be reconciled with Supreme
Court qualified immunity precedent. See Bame, 637 F.3d at
389–90 (Rogers, J., dissenting).
As binding precedent, see LaShawn A. v. Barry, 87 F.3d
1389, 1395 (D.C. Cir. 1996) (en banc), however, Bame
controlled in the instant case even though since Bame was
decided six Justices of the Supreme Court have expressed
reservations concerning strip searches of the sort challenged
here and in Bame. See Florence v. Bd. of Chosen Freeholders
of Cnty. of Burlington, 132 S. Ct. 1510, 1523 (2012) (Roberts,
C.J., concurring); id. at 1524 (Alito, J., concurring); id. at 1525
(Breyer, J., joined by Ginsburg, Sotomayor, and Kagan, JJ.,
dissenting). This development, combined with the Supreme
Court’s post-Bame admonition in Camreta, 131 S. Ct. at 2031,
warrants deciding the Fourth Amendment issue, see Johnson,
734 F.3d at 1206–07 (Rogers, J.). Having twice avoided
deciding the merits of the Fourth Amendment class-action
challenges, the en banc court, by “following the two-step
sequence [of Saucier v. Katz, 533 U.S. 194, 201 (2001)] —
defining constitutional rights and only then conferring immunity
— [would] clarify the legal standards governing public
officials,” Camreta, 131 S. Ct. at 2032. The prospect that
3
individuals arrested for exercising their First Amendment rights
in the Nation’s Capital, as in Bame, 637 F.3d at 383, or arrested
for other non-violent, non-drug offenses, as the female
appellants here, see Johnson, 734 F.3d 1194, may be subjected
— when turned over by law enforcement officials to the United
States Marshal for presentment in the D.C. Superior Court — to
intrusive strip searches absent reasonable suspicion of carrying
contraband is good reason for the en banc court to “clearly
establish[],” Wilson v. Layne, 526 U.S. at 606, that Fourth
Amendment protections against such suspicionless strip searches
exist no less in the Nation’s Capital than elsewhere in the United
States.
Today, the en banc court may be comforted by the fact that
the United States Marshal for the D.C. Superior Court changed
his strip search policy after the Johnson appellants were strip
searched. See Appellee’s Br. 59 n.17. But the Marshal’s prior
policy could be reinstated at any time, even on an ad hoc basis.
See Johnson, 734 F.3d at 1207 (Rogers, J.). So long as the law
remains uncertain, the strip searches that occurred in Bame to
First Amendment protesters and in Johnson to non-violent, non-
drug female arrestees could occur again, and under Bame the
United States Marshal again would enjoy qualified immunity.
When the court is next confronted with this Fourth Amendment
challenge, initial rehearing en banc will be appropriate. See
LaShawn A., 87 F.3d at 1395.