541 F.3d 1298 (11th Cir. 2008), 05-16734, Powell v. Barrett

Docket Nº:05-16734.
Citation:541 F.3d 1298
Party Name:C. Alan POWELL, individually, and on behalf of all others similarly situated, Tory Dunlap, individually, and on behalf of all other similarly situated, Lee Antonio Smith, individually, and on behalf of all other similarly situated, David Evans, individually, and on behalf of all others similarly situated, Plaintiffs-Appellees Cross-Appellants, v. S
Case Date:September 04, 2008
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

Page 1298

541 F.3d 1298 (11th Cir. 2008)

C. Alan POWELL, individually, and on behalf of all others similarly situated, Tory Dunlap, individually, and on behalf of all other similarly situated, Lee Antonio Smith, individually, and on behalf of all other similarly situated, David Evans, individually, and on behalf of all others similarly situated, Plaintiffs-Appellees Cross-Appellants,


Sheriff Jacqueline BARRETT, Fulton County, State of Georgia, Sheriff Myron Freeman, Fulton County, State of Georgia, Chairperson Karen Handel, Fulton County Board of Commissioners, Member Robb Pitts, Fulton County Board of Commissioners, Member Tom Lowe, Fulton County Board of Commissioners, Member Emma I. Darnell, Fulton County Board of Commissioners, Member Nancy A. Boxill, Fulton County Board of Commissioners, Member William Edwards, a.k.a. Bill Edwards, Fulton County Board of Commissioners, City of Atlanta, State of Georgia, Defendants-Appellants Cross-Appellees.

No. 05-16734.

United States Court of Appeals, Eleventh Circuit.

September 4, 2008

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[Copyrighted Material Omitted]

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Sidney Leighton Moore, III, Troutman Sanders, LLP, Theodore H. Lackland, Lackland & Heyward, Teresa Wynn Roseborough, John H. Fleming, Sutherland, Asbill & Brennan, Dennis M. Young, City of Atlanta, Law Dept., Atlanta, GA, for Defendants.

William Charles Claiborne, III, Washington, DC, George Brian Spears, Law Office of Brian Spears, Charles B. Pekor, Jr., Daniel Eliot DeWoskin, Pekor & DeWoskin, LLC, Coy J. JohnsonRolesia Butler Dancy, Willie Jake Lovett, Jr., Office of Fulton Cty. Atty., Overtis Hicks Brantley, City of Atlanta Law Dept., Atlanta, GA, Barrett S. Litt, Litt, Estuar, Harrison, Miller & Kitson, LLP, Los Angeles, CA, for Plaintiffs.

Appeals from the United States District Court for the Northern District of Georgia.


CARNES, Circuit Judge:

We granted rehearing en banc to decide whether a policy or practice of strip searching all arrestees as part of the process of booking them into the general population of a detention facility, even without reasonable suspicion to believe that they may be concealing contraband, is constitutionally permissible. We answer that question in the affirmative, at least where the strip search is no more intrusive than the one the Supreme Court upheld in Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979).


The facts and procedural history of this entire case are set out in accurate detail in the panel opinion. Powell v. Barrett, 496 F.3d 1288 (11th Cir.2007), vacated, No. 05-16734 (11th Cir. Feb. 1, 2008). As it explains, the named plaintiffs in this class action lawsuit are eleven former detainees at the Fulton County Jail in Georgia, all of whom were strip searched upon entering or re-entering the general population at that detention facility. Id. at 1296, 1298. The eleven named plaintiffs can be divided into three groups, which overlap to some extent. Id. at 1297. One of those three groups is “the Arrestee Strip Search Class (AR Group)," which consists of the eight plaintiffs who were strip searched as part of the point-of-entry booking process before they were placed into the general jail population for the first time. Id. at 1297-98. Three of the eight members of that group were arrested on charges that supplied reasonable suspicion to believe that they might be concealing contraband at the time they were booked into the jail. Id. at 1312.

Our en banc interest, as reflected in our briefing instructions, is in the strip searches conducted on the other five members of the arrestee group (plaintiffs Powell, Clemons, Middleton, Witherspoon and Wolf). Id. As to each of those five, neither the charge itself nor any other circumstance supplied reasonable suspicion to believe that the arrestee might be concealing contraband. See id. at 1312-13. The five were strip searched solely because they were entering the general population of inmates at the detention facility.

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Because this is an appeal from the denial of a motion to dismiss, we take the facts from the allegations of the complaint. Pielage v. McConnell, 516 F.3d 1282, 1284 (11th Cir.2008); Locke v. SunTrust Bank, 484 F.3d 1343, 1345 n. 1 (11th Cir.2007); Spain v. Brown & Williamson Tobacco Corp., 363 F.3d 1183, 1186 (11th Cir.2004). The allegations are that four of these five plaintiffs were taken to the Fulton County Jail for detention after being arrested on relatively minor charges: a bail revocation on a disorderly conduct charge, a traffic ticket warrant, a DUI charge, and a contempt charge for failure to pay child support. Powell, 496 F.3d at 1312 (R6:78:¶ 89.) The fifth plaintiff in this group was arrested on a burglary charge, which we (like the panel) assume did not involve an element of violence. Powell, 496 F.3d at 1312 & n. 32.

“Every person booked into the Fulton County Jail general population is subjected to a strip search conducted without an individual determination of reasonable suspicion to justify the search, and regardless of the crime with which the person is charged." (R6:78:¶ 180.) The booking process includes “having the arrested person go into a large room with a group of up to thirty to forty other inmates, remove all of his clothing, and place the clothing in boxes." (Id. ¶ 181.) The entire group of arrestees then takes a shower in a single large room. (Id.¶¶ 182, 238.) After the group shower each arrestee “either singly, or standing in a line with others, is visually inspected front and back by deputies." (Id. ¶ 183.) “Then each man [takes] his clothes to a counter and exchange[s] his own clothes for a jail jumpsuit." (Id. ¶ 239.) Identifying an illustrative case, the complaint alleges that one of these five plaintiffs “along with every other inmate in the process, had to stand before a guard front and center, and show his front and back sides while naked." (Id. ¶ 240.) There is no allegation that any members of the opposite sex either conducted the visual searches or were present while they were being conducted. Nor is there any allegation that the searches were conducted in an abusive manner. See Powell, 496 F.3d at 1310 n. 28 (“We note that, in the instant case, Plaintiffs do not challenge the manner of the strip searches." ).

The five plaintiffs contend that the strip searches violated the Fourth Amendment because there was no reasonable suspicion to believe that any of them had hidden contraband. The panel felt forced to agree, citing our prior decision in Wilson v. Jones, 251 F.3d 1340 (11th Cir.2001), as well as an earlier opinion that had reached the same conclusion, albeit in dicta, Skurstenis v. Jones, 236 F.3d 678, 682 (11th Cir.2000) (stating that a strip search without reasonable suspicion does not comport with the Fourth Amendment but that reasonable suspicion existed in that case). Powell, 496 F.3d at 1310, 1312; see also Cuesta v. Sch. Bd., 285 F.3d 962, 969 (11th Cir.2002) (noting that “[i]n Wilson, we made the dicta of Skurstenis binding law" but concluding that reasonable suspicion existed in that case). The panel did point out that our decisions imposing a reasonable suspicion requirement for point-of-entry strip searches at detention facilities had “relied on, but misconstrued, the Supreme Court's decision in Bell," and that “[w]e have since recognized our misinterpretation" of that decision. Powell, 496 F.3d at 1312 (citing Evans v. Stephens, 407 F.3d 1272, 1279 (11th Cir.2005) (en banc) (dicta)).

Despite its misgivings, the panel acted properly in following Wilson because it was bound by the prior panel precedent rule to do so. Smith v. GTE Corp., 236 F.3d 1292, 1301-02 (11th Cir.2001); Cohen v. Office Depot, Inc., 204 F.3d 1069, 1076 (11th Cir.2000); United States v. Steele, 147 F.3d 1316, 1317-18 (11th Cir.1998) (en

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banc); Cargill v. Turpin, 120 F.3d 1366, 1386 (11th Cir.1997); Gwin v. Snow, 870 F.2d 616, 623-24 (11th Cir.1989). We are not. Sitting en banc, we are free to revisit the Wilson decision and its interpretation of Bell and to decide for ourselves what Bell means.


The reasoning that leads us to uphold the searches of these five plaintiffs is simple. After balancing the privacy interests of detention facility inmates against the important security interests involved, the Supreme Court upheld the visual body cavity strip searches at issue in the Bell case against a Fourth Amendment attack. The security needs that the Court in Bell found to justify strip searching an inmate re-entering the jail population after a contact visit are no greater than those that justify searching an arrestee when he is being booked into the general population for the first time. And the searches conducted in the Bell case were more intrusive, and thereby impinged more on privacy interests, than those conducted in this case. It follows from the Bell decision that the less intrusive searches in this case do not violate the Fourth Amendment. That is the gist of our reasoning, the details of which follow.


Before getting into those details, we pause briefly to address the defendants' contention that the test we should apply is the one for prison regulations in general that was announced in Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), instead of the more strip search-specific Fourth Amendment analysis that the Supreme Court used in Bell. In their brief, the plaintiffs oppose the defendants' position, arguing instead that we should apply the specific Fourth Amendment approach.

The plaintiffs' position is consistent with the Supreme Court's repeated admonitions that we should not assume that it has, by implication, overruled a prior decision specifically on point with later, more general language in a different decision. Hohn v....

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