A very interesting and important decision, in Bull v. City & County of San Francisco (en banc). Because it’s 6–5 on the merits (Judge Graber joined the majority as to qualified immunity, but agreed with the dissent’s underlying constitutional argument), and because it appears to deepen a circuit split, there’s a good chance that the case will go up to the Supreme Court, assuming the plaintiffs petition for certiorari. (Note that the policy “requir[ed] the strip search of all arrestees who were to be introduced into San Francisco’s general jail population for custodial housing.” The majority does not opine on strip searches of arrestees who are being booked and released.)
I think the majority is correct on the merits, and I also agree with Chief Judge Alex Kozinski’s very interesting and thoughtful concurrence (joined by Judge Ronald Gould, the one Democratic appointee in the majority); the concurrence begins on PDF p. 32. I particularly think that the majority’s result is all but dictated by Supreme Court’s 1979 Bell v. Wolfish decision, which in relevant part reads:
Inmates at all Bureau of Prisons facilities, including the MCC, are required to expose their body cavities for visual inspection as a part of a strip search conducted after every contact visit with a person from outside the institution. Corrections 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. The District Court upheld the strip-search procedure but prohibited the body-cavity searches, absent probable cause to believe that the inmate is concealing contraband. Because petitioners proved only one instance in the MCC’s short history where contraband was found during a body-cavity search, the Court of Appeals affirmed. In its view, the “gross violation of personal privacy inherent in such a search cannot be outweighed by the government’s security interest in maintaining a practice of so little actual utility.”.Admittedly, this practice instinctively gives us the most pause. However, assuming for present purposes that inmates, both convicted prisoners and pretrial detainees, retain some Fourth Amendment rights upon commitment to a corrections facility, we nonetheless conclude that these searches do not violate that Amendment. The Fourth Amendment prohibits only unreasonable searches, and under the circumstances, we do not believe that these searches are unreasonable.
The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. In each case it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider 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. 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.
We do not underestimate the degree to which these searches may invade the personal privacy of inmates. Nor do we doubt, as the District Court noted, that on occasion a security guard may conduct the search in an abusive fashion. Such abuse cannot be condoned. The searches must be conducted in a reasonable manner. But we deal here with the question whether visual body-cavity inspections as contemplated by the MCC rules can ever be conducted on less than probable cause. Balancing the significant and legitimate security interests of the institution against the privacy interests of the inmates, we conclude that they can.
(I realize that the dissent argues, focusing on the last two sentences of this excerpt, that Bell “set the justification for strip searches at something less than probable cause, but declined to explicitly specify the level of suspicion.” But I don’t think that’s right, given the entire passage, which expressly upheld a blanket policy with no requirement of individualized suspicion and no categorical exemption of certain supposedly safer classes of inmates.)
Thanks to the invaluable How Appealing for the pointer.
SuperSkeptic says:
Can we all at least agree that “qualified immunity” is a mess...?
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February 9, 2010, 3:36 pmOrin Kerr says:
I wrote a short article last year about the basic problem Judge Kozinski identifies: The Limits of Fourth Amendment Injunctions.
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February 9, 2010, 4:23 pmCMH says:
It is. But the underlying 4th Amendment issue (which I also think we can all agree is a mess) is the real problem here. It’s not like this case turned on clearly established, it largely turned on the constitutional violation. Graber’s vote didn’t change the outcome on either prong.
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February 9, 2010, 4:33 pmBuddy Hinton says:
I thought this excerpt from the dissent was pretty interesting:
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February 9, 2010, 4:34 pmVisitor Again says:
Kozinski characterizes the request for adherence to the fourth amendment requirement of individualized determinations of cause to search as constituting a demand for the judicial creation of favored sub-classes entitled to disparate treatment. What sophistry.
The fourth amendment protects individual people, not classes of people. In this context, classes are artificial contrivances of convenience, created to avoid the hard work the fourth amendment requires, making individualized determinations of reasonable cause for invasions of privacy.
Making individualized determinations would be heavy going, Kozinski complains. The fourth amendment’s protection of anal privacy thus bends over before considerations of administrative convenience.
Why not simply make a flat holding that the fourth amendment offers no protection to those in custody instead of clinging to the fiction that the courts are making determinations of whether searches of inmates are reasonable? That would be the honest course.
Instead, the courts concede that the reasonability of searches depends upon the circumstances, but then accord one circumstance–detention–determinative effect and refuse to look at any other circumstances.
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February 9, 2010, 5:03 pmBuddy Hinton says:
Another part that Judge Kozinski gets wrong is the idea that all arrestees will be required to undergo the strip searches, so the strip searches will be less abusive. The problem is that the jailor is not REQUIRED to do the strip search, but merely allowed at her option. Deputy Todd Stoddard is not getting strip searched. Ex Officer Johannes Mehserle is not getting strip searched. Nor are all strip searches created equal. Some stretch out the sensitive tissues to a great extent and for a long time. Others not so much. However, if the trespasser at the econ summit gets the “Goatse” and the trespasser at the family planning facility gets the “Marcus Welby,” that does not give the first trespasser a claim. Judge Kozinski’s argument makes zero sense.
Frankly, I am not necessarily against the idea that all inmates to be held for longer than x hours can be strip searched, however, there is definitely room for judges to still safeguard fourth amendment values. For example, judges should get a little activist and require that the arrestee has the option of having the searches video’d (or not) and that the arrestee would be awarded sole custody of the video shot. That is an administrative framework that does not require “judgement calls” and still protects privacy interests that are supposed to be safeguarded 4a by by enabling appropriate section 1983 claims. It is not hard to fashion a better compromise with a little will and imagination, which the judges and the 4a scholars seem to be sorely lacking in this area.
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February 9, 2010, 5:29 pmBuddy Hinton Corrections says:
–Deputy Adam Stoddard–
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February 9, 2010, 5:42 pmArthurKirkland says:
I like the idea of requiring a single videotape, to be entrusted to the searched citizen. Unless qualified immunity is abandoned, I also advocate requiring a record of as many police-citizen interactions as can be reasonably arranged. Every police car, every interrogation room, every booking area should be camera-equipped.
I also like the all-or-none standard. If any felony suspect is to be searched, regardless of individualized suspicion, every felony suspect. Any misdemeanor suspect, every misdemeanor suspect.
This is a close call, from my perspective. In part because I am skeptical about the majority’s expressed outrage concerning law enforcement misconduct. I would wager that several of those judges would bend backward until their spines snapped to avoid awarding relief to a plaintiff who established abusive treatment by law enforcement personnel. I might lose that wager, but Las Vegas was built — quite handsomely — on probability.
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February 9, 2010, 6:47 pmBuddy Hinton Corrections says:
btw, ArthurKirkland, I like your posts here at volokh.com. You are sarcastic sometimes, but I get what you are saying and your heart is in the right place from what I can see.
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February 9, 2010, 6:51 pmBuddy Hinton says:
To expand on this a bit, a think one important bit of sub-text of the case, or more specifically from the plaintiffs vetted for the case, is that strip searching related abuse occurs precisely because police know that certain suspects will not be punished by the judicial branch for whatever (and generally good) reason. For example, arrestee may have political views that the policemen find distasteful. So the popos, in these cases, administer punishment as part of the arrest procedures, and administer it most cruelly when they know that they don’t have a case. That is ironic. It also is, or should be, a Constitutionally cognizable problem. None of the opinions in Bull did a good job cognizing it, though.
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February 9, 2010, 7:21 pmMark says:
I predict this ruling will lead to a dramatic increase in routine abuse and rape of prisoners both male and female, and all claims of rape, even those that are clearly rape, will be defended on the claim that the “criminal” was resisting the now lawful body cavity search.
This decision is repulsive and confirms the police state is upon us as your person can be violated for the most minor of infractions.
Better not get arrested for a seatbelt violation or we will be forced to search (e.g. rape) you. It’s for everyone’s safety you know.
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February 9, 2010, 8:00 pmBuddy Hinton says:
See, now as long as you have a Palin / Jindal in ’12 bumpersticker, there is no parade of the horribles, Mark.
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February 9, 2010, 8:10 pmrjs says:
EV: “I also agree with Chief Judge Alex Kozinski’s very interesting and thoughtful concurrence”
My favorite part is the passage with Kozinski’s entertaining parentheticals, including a pun on one of the named plaintiff’s surnames.
Kozinski discusses the difficulties of dividing inmate searchees into subclasses. One subclass is people charged with violent crimes. But, Kozinski opines, jurists disagree on what constitutes a violent crime. With that setup, here is the funny part:
See, e.g., United States v. Chambers, 473 F.3d 724, 726 (7th Cir. 2007) (escape is a crime of violence); United States v. Piccolo, 441 F.3d 1084, 1088 (9th Cir. 2006) (no it’s not); United States v. Asberry, 394 F.3d 712, 715–16 (9th Cir. 2005) (statutory rape is a crime of violence); id. at 722 (Bea, J., concurring) (no way); United States v. Wenner, 351 F.3d 969, 974 (9th Cir. 2003) (burglary is not a crime of violence); id. at 977 (Wallace, J., dissenting) (is too); United States v. Johnson, 448 F.3d 1017, 1018 (8th Cir. 2006) (grand theft auto is); Von Don Nguyen v. Holder, 571 F.3d 524, 525 (6th Cir. 2009) (au contraire); Malta-Espinoza v. Gonzales, 478 F.3d 1080, 1084 (9th Cir. 2007) (stalking isn’t); id. at 1088 (Duffy, J., dissenting) (“I respectfully dissent.”); United States v. Saavedra-Velazquez, 578 F.3d 1103, 1110 (9th Cir. 2009) (Reinhardt, J.) (attempted robbery is); id. (Reinhardt, J.,
specially concurring) (or is it?); United States v. Trinidad-Aquino, 259 F.3d 1140, 1146 (drunk-driving-resulting-inbodily-injury is a gentle crime); id. at 1147 (Kozinski, J., dissenting)(Bull!).
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February 9, 2010, 8:32 pmBuddy Hinton says:
Judge Kozinski is hilarious when you agree with him. I can never dislike what he says too bad because he put a Tad ref in an opinion and because he put some humorous softcore pr0n on the Net. Nevertheless, in this one his humor falls flat. He should have come up with good ideas, instead of jokes, in this particular opinion.
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February 9, 2010, 8:43 pmPintler says:
From a pragmatic perspective, if I as a law abiding :-) citizen am unfortunate enough to be arrested, I want to be treated with kid gloves — no nasty searches and so on. But I reeeallly want all the other guys in the holding cell to have been searched to the Nth degree.
I dunno if I can expect to have it both ways.
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February 9, 2010, 10:29 pmBuddy Hinton says:
If you are to be held naked for several hours, like the plaintiffs in this case, then what kind of search would be appropo?
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February 9, 2010, 10:34 pmFrater Plotter says:
Let’s be clear that just as the notion of “arrest” contemplates actions against a person that normally would be regarded as assault, kidnapping, etc., similarly does “body cavity search” contemplate actions that would normally be regarded as rape or sexual assault.
Inserting fingers or instruments into the rectum or vagina of an unwilling person is normally a felony carrying severe penalties — including, these days, sexual-offender registration, a permanent mark of shame. It is thus recognized by the law to be an extreme invasion of the normal rights of a person to bodily integrity.
Nor, for that matter, is it clear that this is the least intrusive means available to the state to accomplish its goals. Consider the availability of full-body scanners, X-ray machines, and the like which have been considered for airport security. There is no need to physically insert anything into a person’s orifices to determine whether they are carrying a knife; therefore, choosing to do so indicates a willful choice to commit rape under color of law.
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February 9, 2010, 10:34 pmArthurKirkland says:
Some people would expand that zone of criminality to include acts involving willing persons . . . and they were getting away with it as recently as a decade ago, until the Supreme Court got around to vindicating liberty
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February 9, 2010, 11:15 pmOrin Kerr says:
My favorite part is the passage with Kozinski’s entertaining parentheticals, including a pun on one of the named plaintiff’s surnames.
I found that passage annoying, actually: Blue-book humor is low-hanging fruit.
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February 9, 2010, 11:42 pmAnon. says:
Take a look at who the district judge was here. No way plaintiffs seek cert. here with Breyer recused. Even if Kennedy sides with Stevens (a dissenter in Bell v. Wolfish), Ginsburg, and Sotomayor (whose 2d Cir. jurisprudence was very pro-plainitff here), that’s a 4–4 tie, which automatically affirms the 9th Cir. without opinion.
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February 10, 2010, 12:10 ameyesay says:
In 1896, Plessy v. Ferguson upheld the doctrine of “separate but equal.” Arguably, it was worth a try. But for the next 58 years, separate was never equal, and it became clear that “separate but equal” was not going to work. The Supreme Court recognized this and overturned it in 1954, declaring unanimously, “separate educational facilities are inherently unequal.”
Now we have a decision that is creating a doctrine of “body cavity searches are OK if guards aren’t abusive.” I predict that, just as it was impossible for the United States to achieve “separate but equal,” it will prove impossible to achieve “guards aren’t abusive.” Eventually, the Supreme Court will rule that allowing prison guards to routinely perform body cavity searches without probable cause is inherently abusive and overturn this decision.
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February 10, 2010, 1:52 amBuddy Hinton says:
This case veritably screams for some wise Latina style empathy. The support (active and passive) for the mage opp here at vlkh.cm is surprising, but not really. “What me worry?” asks the 4a professor.
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February 10, 2010, 5:59 amPintler says:
I’m not sure I agree with that completely: cf. ‘keistering’. Or if you are thinking X-rays, those aren’t risk free.
That aside, am I misreading the decision? It seems to be addressing something more often called a ‘strip search’, where guards are forbidden to touch the person being searched. The ‘body cavity’ inspection is visual only, looking for e.g. dangling strings or foil packets in the mouth. If guards are getting out the speculums and sigmoidoscopes that’s one thing; visually verifying there is nothing between one’s cheeks (either pair) is another.
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February 10, 2010, 9:25 amBuddy Hinton says:
In case anyone is having trouble visualizing what we are discussing here:
http://www.youtube.com/watch?v=riboisae0JY
On the subject of using video recording to ensure that searches are performed in a reasonable manner, here is an interesting example of how that can work (although it was not a strip search):
http://www.philly.com/inquirer/columnists/20100208_Daniel_Rubin__Another_TSA_complaint_close_to_home.html
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February 10, 2010, 3:10 pmH Taylor says:
Laura Timbrook for kiting checks?? The same gal that is married to Jonathan Miller who ran for CA Governor in 2003? Political balderdash.
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March 8, 2010, 9:32 pmThomas says:
No, that is a different person.
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March 28, 2010, 3:17 amNyla Balluch says:
I believe you’ve provided some important data. I’d love to learn much more and I’ll keep checking back as frequently as possible. :)
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June 2, 2010, 2:24 pm