Bame v. Dillard

Citation637 F.3d 380
Decision Date24 June 2011
Docket NumberNo. 09–5330.,09–5330.
PartiesPaul BAME, et al., Appelleesv.Todd W. DILLARD, In his Official Capacity (Former United States Marshal for the District of Columbia), Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

637 F.3d 380
394 U.S.App.D.C.

Paul BAME, et al., Appellees
Todd W. DILLARD, In his Official Capacity (Former United States Marshal for the District of Columbia), Appellant.

No. 09–5330.

United States Court of Appeals, District of Columbia Circuit.

Argued Sept. 14, 2010.Decided March 25, 2011.As Amended March 29, 2011.Rehearing En Banc Denied June 24, 2011.

[637 F.3d 381]

Appeal from the United States District Court for the District of Columbia (No. 1:05–cv–01833–RMC).W. Mark Nebeker, Assistant U.S. Attorney, argued the cause for appellant. With him on the briefs were Ronald C. Machen Jr., U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.Lynn E. Cunningham argued the cause for appellees. With him on the brief was Zachary Wolfe.

[637 F.3d 382]

Before: GINSBURG and ROGERS, Circuit Judges, and WILLIAMS, Senior Circuit Judge.Opinion for the Court filed by Circuit Judge GINSBURG.Dissenting opinion filed by Circuit Judge ROGERS.GINSBURG, Circuit Judge:

The named plaintiffs filed this class action suit for damages against Todd Walther Dillard, a former United States Marshal for the Superior Court of the District of Columbia, claiming that, after being arrested during a demonstration in September 2002, they were unconstitutionally strip searched by Deputy U.S. Marshals under Dillard's direction. According to the plaintiffs, caselaw had by then clearly established that the Fourth Amendment to the Constitution of the United States prohibited strip searching a person arrested for a non-violent, non-drug-related misdemeanor absent a particularized reason to suspect the arrestee was concealing contraband or weapons about his person. Dillard moved for summary judgment based upon qualified immunity, and when the district court denied that motion, brought this interlocutory appeal. We conclude it was not clearly established in 2002 that the strip search of a person being introduced into a detention facility violated the Fourth Amendment. Therefore, Dillard is entitled to qualified immunity and to summary judgment.

I. Background

In 1999 the United States Marshals Service (USMS) adopted Policy Directive No. 99–25 to prescribe, among other things, the procedure for strip searching prisoners and “other persons who are under arrest.” The Policy Directive authorized a “strip search,” defined as “[a] complete search of a prisoner's attire and a visual inspection of the prisoner's naked body, including body cavities,” 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.” “Reasonable suspicion” was to be determined according to the following criteria:

a. Serious nature of the offense(s) charged, i.e., whether crime of violence or drugs;

b. Prisoner's appearance or demeanor;

c. Circumstances surrounding the prisoner's arrest or detention; i.e., whether the prisoner has been convicted or is a pretrial detainee;

d. Prisoner's criminal history;

e. Type and security level of institution in which the prisoner is detained; or

f. History of discovery of contraband and/or weapons, either on the prisoner individually or in the institution in which prisoners are detained.

Dillard was the United States Marshal for the Superior Court of the District of Columbia when the plaintiffs were arrested and allegedly strip searched. Under his supervision, all male arrestees held at the Superior Court were strip searched upon arrival, before being put into the cellblock; * more specifically, each male arrestee was required to drop his trousers and underwear, bend over or squat, and

[637 F.3d 383]

expose his buttocks and genitals to a male Deputy Marshal. This practice had been instituted in light of an extensive history of prisoners' concealing contraband on their bodies while in the cellblock. In the four years prior to the plaintiffs' arrests, the USMS had documented at least 30 incidents in which Deputy Marshals discovered contraband—including drugs, knives, razor blades, and box cutters—on prisoners brought to the Superior Court cellblock by law enforcement.

Metropolitan Police officers arrested the plaintiffs on the morning of September 27, 2002 while they were protesting a meeting of the International Monetary Fund and the World Bank in downtown Washington, D.C. The officers initially transported the protestors to various police holding facilities; later that day, the officers bused the named plaintiffs and others to the Superior Court and transferred them to the custody of the USMS. Because the plaintiffs had refused to identify themselves to law enforcement authorities, they were recorded as “John Does” on the “lockup list” provided to the Deputy Marshals.

At the Superior Court, each plaintiff first passed through a metal detector and was then subjected to a pat-down search. The Deputy Marshals then strip searched the arrestees in a receiving cell in batches of approximately ten men; no plaintiff was touched and no female was present during the search. No contraband was recovered from any plaintiff.

After being strip searched, groups of 20 to 30 men were placed together in holding cells to await disposition of the charges against them. Each had been charged with either “incommoding” traffic or “failure to obey” a law enforcement officer, both of which are misdemeanors. On September 28 they were released, some having been fined and others not sentenced at all.

The named plaintiffs filed this class action seeking damages from Dillard pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). They claimed the strip searches, because performed without individualized suspicion, violated their right under the Fourth Amendment to be free from unreasonable searches.

The district court certified a class of plaintiffs consisting of:

All men who were: (1) arrested on September 27, 2002 by the D.C. Police officials during a series of mass protests in downtown Washington, D.C.; (2) remanded by D.C. Police, following their arrests, into the custody of the U.S. Marshal[ ] for the District of Columbia prior to being released; and (3) subjected by deputy U.S. Marshals to a strip, visual, body cavity search without any particularized or individualized reasonable suspicion that he was concealing drugs, weapons or other contraband....

The plaintiffs moved for summary judgment on the issue of liability and Dillard moved for judgment on the pleadings or, in the alternative, for summary judgment, arguing he was entitled to qualified immunity under Saucier v. Katz, 533 U.S. 194, 200–02, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001).

The district court denied Dillard's motion. It concluded the strip searches violated the Fourth Amendment and held Dillard was not entitled to qualified immunity “because the law was clearly established that blanket strip searches of non-violent, non-felony arrestees were unlawful” in 2002. Bame v. Dillard, 647 F.Supp.2d 43, 52, 55 (2009). The court also denied the plaintiffs' motion for summary judgment because Dillard had denied the strip searches occurred, thus creating a genuine issue of material fact. For the purpose of

[637 F.3d 384]

this appeal, however, Dillard concedes the strip searches took place as alleged.

II. Analysis

The only issue on appeal is whether Dillard is entitled to qualified immunity, which issue we resolve de novo. Elder v. Holloway, 510 U.S. 510, 516, 114 S.Ct. 1019, 127 L.Ed.2d 344 (1994). Qualified immunity is “a defense that shields officials from suit if their conduct ‘d[id] not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” Ortiz v. Jordan, ––– U.S. ––––, 131 S.Ct. 884, 888, 178 L.Ed.2d 703 (2011) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). The Supreme Court in Saucier established a two-step test for determining whether a government official is entitled to qualified immunity. First, the court asks whether “the facts alleged show the officer's conduct violated a constitutional right.” 533 U.S. at 201, 121 S.Ct. 2151. If so, then the court must determine “whether the right was clearly established” at the time of the alleged violation. Id. The Supreme Court has since clarified that “the sequence set forth [in Saucier ],” although “often appropriate,” is not mandatory. Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 818, 172 L.Ed.2d 565 (2009). Courts may “exercise their sound discretion” in deciding which question to address first “in light of the circumstances in the particular case at hand.” Id.

In this case the principle of constitutional avoidance counsels that we turn directly to the second question. As the Court recognized in Pearson itself, “There are cases in which it is plain that a constitutional right is not clearly established but far from obvious whether in fact there is such a right.” Id. This is such a case.

Therefore the first and, as it happens, only question we address is whether it was clearly established in September 2002 that strip searching an arrestee before placing him in a detention facility without individualized, reasonable suspicion was unconstitutional. To answer this question, “we look to cases from the Supreme Court and this court, as well as to cases from other courts exhibiting a consensus view,” Johnson v. District of Columbia, 528 F.3d 969, 976 (D.C.Cir.2008)—if there is one. The facts of such cases need not be “ ‘materially similar’ ... but have only to show that ‘the state of the law [at the time of the incident] gave [the officer] fair warning that [his alleged misconduct] ... was unconstitutional.’ ” Id. (quoting Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002)).

Central to our inquiry in this case, as reflected in the briefs of both parties, is the decision in Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). There...

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