Metropolitan News-Enterprise


Wednesday, February 10, 2010


Page 3


Ninth Circuit Upholds San Francisco’s Arrestee Strip Search Policy


By STEVEN M. ELLIS, Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday upheld San Francisco’s blanket policy of strip searching pre-trial arrestees who are classified for housing in the general jail population.

Citing security concerns and Supreme Court precedent, an en banc panel ruled 6-5 that the Fourth Amendment does not require authorities to have an individualized reasonable suspicion that an arrestee possesses contraband to conduct a strip search. One of the five judges who disagreed nonethless concurred in the result on the ground that the defendants were entitled to qualified immunity.

The ruling overturns a 2008 decision by a divided three-judge panel, which affirmed a decision by U.S. District Judge Charles R. Breyer of the Northern District of California in a class action challenge to the policy on its face.

The policy has been on hold since 2004, when the city and county changed it for the duration of the legal challenge to require consideration of the crime charged and other individualized factors before conducting a strip search.

Sacramento attorney Mark E. Merin, who represented plaintiffs challenging the policy, told the MetNews that yesterday’s ruling “overruled longstanding precedent” and was “a shock.”

He said the decision means that “if an institution decides, for administrative purposes, its own concept of security, that decision is essentially binding on courts because they’re not equipped to weigh the competing interests.”

Ruling Praised

However, Chief Trial Attorney Joanne Hoeper of the San Francisco City Attorney’s Office praised the ruling and said it was important because, “as a result, jail staff and inmates are going to be protected from drugs and weapons.”

She said San Francisco Sheriff Michael Hennessey, a lawyer, was currently reviewing the opinion and that no decision on reimplementing the blanket policy had been made. However, she added, “the sheriff feels strongly that the jail is less safe since 2004.” 

The Sheriff’s Department oversees six jails, through which approximately 50,000 individuals are booked and processed each year. Hennessey has said he instituted the policy in order to address contraband smuggling in the jail system.

In 2003, Mary Bull and a group of other individuals alleging mistreatment after they were arrested filed suit claiming the policy violated their Fourth Amendment right to be free from unreasonable searches.

Breyer granted summary judgment for the plaintiffs and denied defendants’ motion for summary judgment on qualified immunity grounds. The Ninth Circuit affirmed in an opinion by Judge Sidney R. Thomas over the dissent of Judge Richard C. Tallman.

Previous Opinion

Judge Sandra S. Ikuta concurred, but “with reluctance and grave concern,” saying her opinion was compelled by Ninth Circuit caselaw but in tension with the Supreme Court’s 1979 opinion in Bell v. Wolfish (1979) 441 U.S. 520. There, the high court upheld a policy of conducting visual body cavity searches of individuals housed at a federal facility in New York, ruling that a mandatory, routine strip search policy applied to prisoners “after every contact visit with a person from outside the institution” without individualized suspicion was facially constitutional.

Three-judge Ninth Circuit panels are bound by circuit precedent, but en banc panels are not, and on review by the en banc panel Ikuta wrote for the majority that the circumstances were “not meaningfully distinguishable from those presented in Bell,” and that the balance between the need for the policy and the intrusion on individuals had to be resolved “in favor of the jail system’s institutional concerns.”

Judges Pamela Ann Rymer, Richard R. Clifton and N. Randy Smith joined Ikuta in her opinion.

Chief Judge Alex Kozinski, joined by Judge Ronald M. Gould, concurred, but wrote that he would also reverse because the lower court rulings unconstitutionally forced government officials “to subdivide classes of people subject to a valid Fourth Amendment search into sub-classes that present a materially different Fourth Amendment calculus.”

He explained:

“[E]qual treatment for everyone—the rich and poor, the powerful and weak, blue collar as well as white—creates a strong political check against making the treatment worse. I’m convinced that airport searches would be far more intrusive if upper and middle-class Americans were exempt.”

Thomas, joined by Judges Kim McLane Wardlaw, Marsha S. Berzon and Johnnie B. Rawlinson, dissented. Judge Susan P. Graber joined the majority only in the result, writing that qualified immunity applied because the policy’s unconstitutionality was not clearly established at the time of the events in question.

Merin said his clients had made no decision on whether to seek Supreme Court review of the ruling, and noted that it would not foreclose any issues at trial. Many of his clients have alleged they were subject to abuse in connection with strip searches conducted under the policy.

The case is Bull v. City and County of San Francisco, 06-15566.


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