Bull v. City and County of San Francisco

Citation595 F.3d 964
Decision Date09 February 2010
Docket NumberNo. 06-15566.,No. 05-17080.,06-15566.,05-17080.
PartiesMary BULL; Jonah Zern, and all others similarly situated; Laura Timbrook; Leigh Fleming; Charli Johnson; Micky Mangosing; Alexis Bronson; Marcy Corneau; Lisa Giampaoli, Plaintiffs-Appellees, v. CITY AND COUNTY OF SAN FRANCISCO; San Francisco County Sheriff's Department; Michael Hennessey, Sheriff; San Francisco County Sheriff's Deputies, Defendants-Appellants. Mary Bull; Jonah Zern, and all others similarly situated; Laura Timbrook; Leigh Fleming; Charli Johnson; Micky Mangosing; Alexis Bronson; Marcy Corneau; Lisa Giampaoli, Plaintiffs-Appellees, v. City and County of San Francisco; San Francisco County Sheriff's Department; Michael Hennessey, Sheriff; San Francisco County Sheriff's Deputies, Defendants-Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Dennis J. Herrera, City Attorney, Joanne Hoeper, Chief Trial Attorney, Danny Chou (argued), Chief of Complex and Special Litigation, Robert A. Bonta (argued), Deputy City Attorney, and David B. Newdorf, Newdorf Legal, for the appellants.

Mark E. Merin (argued) and Cathleen A. Williams, Law Office of Mark E. Merin; and Andrew Charles Schwartz and Thomas A. Seaton, Casper, Meadows, Schwartz & Cook, for the appellees.

Appeals from the United States District Court for the Northern District of California, Charles R. Breyer, District Judge, Presiding. D.C. Nos. CV-03-01840-CRB, CV-03-01840-CRB/EMC.

[595 F.3d 966]

Before: ALEX KOZINSKI, Chief Judge, PAMELA ANN RYMER, SIDNEY R. THOMAS, SUSAN P. GRABER, KIM McLANE WARDLAW, RONALD M. GOULD, MARSHA S. BERZON, JOHNNIE B. RAWLINSON, RICHARD R. CLIFTON, SANDRA S. IKUTA, and N. RANDY SMITH, Circuit Judges.

IKUTA, Circuit Judge:

The San Francisco Sheriff's Department oversees six county jails in the San Francisco Bay Area, through which approximately 50,000 individuals are booked and processed each year. To address a serious problem of contraband smuggling in the jail system, Sheriff Michael Hennessey instituted a policy requiring the strip search of all arrestees who were to be introduced into San Francisco's general jail population for custodial housing. In a class action lawsuit challenging this policy on its face, a district court held that it violated the Fourth Amendment rights of the persons searched, and denied Sheriff Hennessey qualified immunity. Hennessey, the San Francisco Sheriff's Department, and the City and County of San Francisco brought this interlocutory appeal, challenging the denial of qualified immunity.1 A divided panel of this court affirmed the district court's denial, Bull v. City & County of San Francisco, 539 F.3d 1193 (9th Cir. 2008), and we granted rehearing en banc. Because we conclude that San Francisco's policy did not violate plaintiffs' constitutional rights, we reverse the district court's denial of Sheriff Hennessey's motion for summary judgment based on qualified immunity, and in doing so necessarily reverse the district court's grant of plaintiffs' motion for partial summary judgment as to Fourth Amendment liability.

I

"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." Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). Indeed, "attempts to introduce drugs and other contraband into [prison] premises ... is one of the most perplexing problems of prisons." Hudson v. Palmer, 468 U.S. 517, 527, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984); see Overton v. Bazzetta, 539 U.S. 126, 134, 123 S.Ct. 2162, 156 L.Ed.2d 162 (2003) ("Drug smuggling and drug use in prison are intractable problems."); Block v. Rutherford, 468 U.S. 576, 588-89, 104 S.Ct. 3227, 82 L.Ed.2d 438 (1984) ("We can take judicial notice that the unauthorized use of narcotics is a problem that plagues virtually every penal and detention center in the country."). San Francisco's six county jails are no exception: They struggle with a serious, ongoing problem of drugs, weapons, and other contraband being smuggled into jail facilities. The record contains hundreds of pages of incident reports, indicating that between April 2000 and December 2003, searches of the San Francisco general jail population resulted in the discovery of 1,574 items of contraband, including 662 assorted controlled substance pills, 106 shanks and other weapons, 1 screwdriver, 17 jail-made handcuff keys, 42.88 grams of rock cocaine, 2.75 grams of powder cocaine, 6.70 grams of methamphetamine, 6.24 grams of tar heroine, 71.93 grams of marijuana, 4 ecstasy pills, 32 assorted pipes, 1 hypodermic needle, and 24 gallons of homemade alcohol known as "Pruno." The presence of such contraband threatens the health and safety of inmates, corrections officers, and jail employees. The record contains reports of the death of an inmate housed in the general population from drugs obtained within the prison, and of one detainee who set her clothes on fire with a lighter smuggled into the cell, of another who mutilated himself with staples similarly secreted into the jail, and of a third who attempted suicide with razor-blades smuggled into the jail in his rectal cavity. The jail administrators have concluded that, based on their experience, "the greatest opportunity for the introduction of drugs and weapons into the jail occurs at the point when an arrestee is received into the jail for booking and, thereafter, housing." In light of this conclusion, Sheriff Hennessey developed and implemented a "Booking Searches" policy. This policy authorized officers to strip search an arrestee when any one of eleven conditions applied, including the condition at issue here, namely, when "[a] person [was] assigned a custody level by Classification and scheduled for custodial housing."

Plaintiffs' facial challenge to the Booking Searches policy is the only issue before us in this interlocutory appeal. This is an important point, because the dissent draws upon unproven allegations to give a shocking and inflammatory account of mistreatment by jail officials, including forcible strip searches conducted in an abusive and violent manner. The dissent's sensationalist account of individual factual allegations is worse than irrelevant, as it invites us to decide this case on the basis of disputed factual issues not yet presented by the parties, not yet considered by the district court, and not yet weighed by a jury. San Francisco has vigorously denied the allegations the dissent recites. Nevertheless, if true, these allegations are quite serious, even absent the dissent's embellishments.2 Such abuses would contravene San Francisco's written policy, which required that searches be conducted in a "professional manner," and prohibited officers of the opposite sex to be present. If these allegations were found to be true, the victims of those abuses would have strong claims against San Francisco.

But the plaintiffs are not making such claims. Plaintiffs emphasized throughout their briefing that they "brought this action to challenge the blanket policy and practice of searching prearraignment arrestees ...," not the individual cases. Thus, plaintiffs relied "almost exclusively on defendants' depositions and written policies as the basis of the material facts" in order to avoid disputed issues of fact that would defeat summary judgment.

For purposes of this narrow appeal, we are called upon to assess the constitutionality of the policy itself, not violations of that policy; thus, as did the district court, we must assume the challenged policy was followed scrupulously.

Although the dissent's dramatic accounts stir the emotions, they are misleading and ultimately irrelevant to the case before us. Not a single one of the long parade of victims described by the dissent—Mary Bull, Charli Johnson, Bernie Galvin, Michael Marron, Laura Timbrook, Salome Mangosing, Leigh Fleming, Michelle De Ranleau, or Deborah Flick — have claims at issue in this appeal.3 Rather than highlight the dramatic individual anecdotes that can be mined from the record, we limit our discussion to the issue actually before us: plaintiffs' challenge to the jail's written strip-search policy. We leave other, factual questions to be addressed by the district court in the first instance.

A

During the period at issue, new arrestees entering the San Francisco County jail system were transported to County Jail No. 9, a temporary intake and release facility, where they were pat-searched, scanned with a metal detector, booked into the system, and fingerprinted. The arrestees were then placed in holding cells. Those eligible to post bail were given access to a telephone and afforded up to 12 hours to secure their release on bond. Individuals arrested because of intoxication were released when they became sober. Arrestees who were statutorily eligible were cited and released. See Cal.Penal Code § 853.6. None of these arrestees was strip searched under the challenged policy.

Because County Jail No. 9 is a temporary intake facility equipped with holding cells but no beds, those arrestees not eligible for release were transported to a jail with housing facilities. Arrestees were then transferred into the facility's general jail population, which included pretrial detainees and convicted inmates. Pursuant to the Booking Searches policy, these individuals were strip searched prior to admission into the general population in order to prevent the smuggling of contraband into the facilities.

Under the policy, a strip search was to be performed "in a professional manner in an area of privacy" by an officer of the same sex as the arrestee. The arrestee was required "to remove or arrange some or all of his or her clothing so as to permit a visual inspection of the underclothing, breasts, buttocks or genitalia of such person." The search included "a visual inspection of the...

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