803 F.2d 485 (9th Cir. 1986), 85-6289, Kirkpatrick v. City of Los Angeles

Docket Nº:85-6289.
Citation:803 F.2d 485
Party Name:Gary KIRKPATRICK and Eric R. Hermann, Plaintiffs-Appellants, v. The CITY OF LOS ANGELES, Daryl F. Gates, Chief of Police, and Lt. John Aggas, individually and in their official capacity, Defendants-Appellees.
Case Date:October 24, 1986
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 485

803 F.2d 485 (9th Cir. 1986)

Gary KIRKPATRICK and Eric R. Hermann, Plaintiffs-Appellants,

v.

The CITY OF LOS ANGELES, Daryl F. Gates, Chief of Police,

and Lt. John Aggas, individually and in their

official capacity, Defendants-Appellees.

No. 85-6289.

United States Court of Appeals, Ninth Circuit

October 24, 1986

Argued and Submitted May 7, 1986.

Page 486

Peter J. Ferguson (argued), Larry J. Roberts, Petersen & Ferguson, Santa Ana, Cal., for plaintiffs-appellants.

Robert Cramer, Asst. City Atty., Los Angeles, Cal., for defendants-appellees.

Appeal from the United States District Court for the Central District of California.

Before SCHROEDER and HALL, Circuit Judges, and HARDY, [*] District Judge.

CYNTHIA HOLCOMB HALL, Circuit Judge:

Plaintiffs-appellants, Gary Kirkpatrick and Eric R. Hermann, former Los Angeles police officers ("the officers"), appeal from the district court's grant of summary judgment in favor of defendants-appellees, the City of Los Angeles, Chief of Police Daryl F. Gates, and Lieutenant John Aggas.

I

On March 13, 1981, while performing their regular duties for the Los Angeles Police Department, the officers responded to a radio call regarding a disturbance at the scene of an automobile accident. At the scene they encountered Robert Rusk, who was intoxicated and had sustained a minor injury. The officers arrested Rusk because a computer check revealed that he was wanted on an outstanding misdemeanor arrest warrant. Before booking him, however, the officers took Rusk to a nearby hospital for medical treatment.

While at the hospital, Rusk told the attending physician that the officers had taken over $600 from him. Immediately after Rusk made this accusation, Kirkpatrick summoned Sergeant Johnson, one of the officers' supervisors who happened to be at the hospital. Johnson interviewed Rusk. During this interview, Rusk equivocated about the accusation and the amount of money allegedly stolen by the officers, eventually reducing the amount from $600 to $60. 1 Johnson searched the patrol vehicle

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and each officer's pockets, wallet, and weapon belt at the hospital, but failed to discover any evidence of wrongdoing. Neither officer had over five dollars in his possession.

Upon arriving at the station, Johnson told Lieutenant Aggas, the watch commander, about Rusk's accusation and the extent and results of Johnson's investigation. Aggas ordered Johnson to strip search the officers. Johnson stated that in his opinion the strip searches were unnecessary, but Aggas directed him to perform the searches in order to protect the officers' records and the department's credibility.

The officers objected to the proposed strip searches. Aggas telephoned the Internal Affairs Division of the department and spoke to Lieutenant Peter Borgerding, the department "advocate." Borgerding recommended that Aggas obtain the officers' consent to the strip searches if possible. However, Borgerding also told Aggas that he had the power to order the searches even without the officers' consent. Both sides agree that as of March 13, 1981, the department had no written policy regarding strip searches of department employees accused of theft or other misconduct.

Aggas directed Johnson to perform the searches without the officers' consent. The searches were performed behind a row of lockers in the corner of the station's locker room, outside the presence of other persons. Because of their familiarity with the search procedure each officer removed his own clothing and handed each article to Johnson for inspection without verbal direction or physical contact. Hermann did not remove his undershorts. Kirkpatrick voluntarily lowered his undershorts, bent over, and spread his buttocks with his hands.

On July 20, 1983, the officers sued the defendants for damages pursuant to 42 U.S.C. Sec. 1983, alleging that the searches violated their fourth amendment and fourteenth amendment rights. The parties filed cross-motions for summary judgment. The district court ordered summary judgment in favor of the defendants, concluding that the searches were reasonable and thus did not violate the officers' fourth amendment rights.

II

We have jurisdiction over the officers' timely appeal pursuant to 28 U.S.C. Sec. 1291. We review the district court's grant of summary judgment de novo. Allen v. A.H. Robins Co., 752 F.2d 1365, 1368 (9th Cir.1985). Summary judgment is appropriate when, viewing the evidence in the light most favorable to the party opposing summary judgment, "there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Lojek v. Thomas, 716 F.2d 675, 677 (9th Cir.1983).

III

We conclude that the district court erred in holding that the searches at issue did not violate the officers' fourth amendment rights.

A

The fourth amendment prohibits unreasonable searches and seizures. Bell v. Wolfish, 441 U.S. 520, 558, 99 S.Ct. 1861,

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1884, 60 L.Ed.2d 447 (1979). The general inquiry for determining reasonableness was outlined by the Supreme Court in Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979).

[T]he permissibility of a particular law enforcement practice is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests. Implemented in this manner, the reasonableness standard usually requires, at a minimum, that the facts upon which an intrusion is based be capable of measurement against "an objective standard," whether this be probable cause or a less stringent test. In those situations in which the balance of interests precludes insistence upon "some quantum of individualized suspicion," other safeguards are generally relied upon....

Id. at 654-55, 99 S.Ct. at 1882-83 (footnotes omitted). Defendants argue that the government's interest in the integrity of its police force is sufficient to justify the search of the officers even absent some "quantum of individualized suspicion" to support the search. We hold that, in spite of the government's interest in police integrity, strip searches of police officers for investigative purposes 2 must be supported by a reasonable suspicion that evidence will be uncovered.

Although police officers "are not relegated to a watered-down version of constitutional rights," Garrity v. New Jersey, 385 U.S. 493, 500, 87 S.Ct. 616, 620, 17 L.Ed.2d 562 (1967), the government has an interest in police integrity which must be considered in evaluating the reasonableness of investigative searches of police officers. For example, in Biehunik v. Felicetta, 441 F.2d 228 (2d Cir.), cert. denied, 403 U.S. 932, 91 S.Ct. 2256, 29 L.Ed.2d 711 (1971), the Second Circuit upheld a procedure in which sixty-two police officers were forced to appear in a lineup for purposes of identification by persons who claimed they were assaulted by a police officer. The officers were chosen for the lineup because they had been on duty in the area where the alleged assault occurred. The court found that the lineup was reasonable even though...

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