Bull v. City and County of San Francisco

Decision Date22 August 2008
Docket NumberNo. 05-17080.,05-17080.
Citation539 F.3d 1193
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.
CourtU.S. Court of Appeals — Ninth Circuit

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

Appeal from the United States District Court for the Northern District of California; Charles R. Breyer, District Judge, Presiding. D.C. No. CV-03-01840-CRB, D.C. No. CV-03-01840-CRB/EMC.

Before: SIDNEY R. THOMAS, RICHARD C. TALLMAN, and SANDRA S. IKUTA, Circuit Judges.

Opinion by Judge THOMAS; Concurrence by Judge IKUTA; Dissent by Judge TALLMAN.

THOMAS, Circuit Judge:

In this interlocutory appeal, we consider whether a blanket policy of strip searching without reasonable suspicion of all individuals arrested and classified for housing in the general jail population violates the arrestees' clearly established constitutional rights. Under the circumstances presented by this case, we conclude that it does, and affirm the order of the district court denying qualified immunity in this § 1983 class action suit.

I

The San Francisco Sheriff's Department ("Department") oversees an urban jail system, consisting of six county jails, which books and processes tens of thousands of persons a year. All new arrestees are brought to County Jail No. 9 where they are booked and a determination is made as to whether the arrestee will be released or housed pending arraignment. County Jail No. 9 is a temporary detention facility and does not contain accommodations for extended stays. Thus, all detainees who are classified for housing are transferred to another one of San Francisco's jails within 24 hours.

San Francisco's jails have faced a continuing problem with smuggled contraband, including drugs and weapons. Searches within the general jail population have uncovered hundreds of items of contraband. Many items of contraband have been discovered during strip searches conducted on new arrestees at County Jail No. 9. Defendants produced evidence of 49 discoveries of drug-related contraband and six weapon discoveries between April 2000 and January 2004.

Until January 21, 2004, San Francisco had a policy1 of strip searching all arrestees entering County Jail No. 9 who fell into multiple particular categories.2 The strip search involved inspection of the naked body, including the arrestee's breasts, buttocks, and genitalia.

According to Defendants, the strip search policy was applied as follows: upon arrival at County Jail No. 9, all inmates who were deemed searchable based on their charge or criminal history were automatically strip searched. Other arrestees were generally not strip searched unless they were identified for placement in a safety cell,3 or if the detainee would not be released within twenty-four hours and therefore would need to be housed in another jail facility. In other words, the Department followed a blanket policy of strip searching all individuals who were classified for housing in the general jail population, regardless of the crime for which they were charged.

On April 23, 2003, Mary Bull and a class of similarly-situated plaintiffs brought a § 1983 suit against Defendants alleging causes of action under the Fourth and Fourteenth Amendments of the U.S. Constitution, and several provisions of state law. In an order issued June 10, 2004, the district court granted Bull's motion to certify a class under Rule 23(b)(3). The class was defined as:

All persons who, during the applicable period of limitations, and continuing to date, were arrested on any charge not involving weapons, controlled substances, or a charge of violence, and not involving a violation of parole or a violation of probation (where consent to search is a condition of such probation), and who were subjected to a blanket visual body cavity strip search by defendants before arraignment at a San Francisco County jail facility without any individualized reasonable suspicion that they were concealing contraband. This class also includes 1) all arrestees who were subjected to subsequent blanket strip search(es) before arraignment after the initial strip search, without any reasonable individualized suspicion that they had subsequently acquired and hidden contraband on their persons; and 2) all persons who, prior to arraignment, were subjected to blanket visual body cavity search(es) incident to placement in a "safety cell" at any of the San Francisco County jails.

The class was further limited by the district court's February 23, 2006 order, which held that San Francisco's policy of strip searching arrestees on the basis of their criminal history was lawful.4 The persons in the class as it stands before this Court are thus all arrestees who were strip searched prior to arraignment solely because they were classified for housing in the general jail population prior to their arraignment.

The parties filed cross-motions for summary judgment. On September 22, 2005 the district court granted in part and denied in part both motions. In relevant part, the district court held that Sheriff Hennessey was not entitled to qualified immunity with respect to San Francisco's blanket policy of strip searching all individuals classified for housing in the general jail population. Defendants now appeal the district court's denial of qualified immunity for Sheriff Hennessey.5

II

We review de novo a district court's decision to grant summary judgment on the ground of qualified immunity. Motley v. Parks, 383 F.3d 1058, 1062 (9th Cir. 2004). In reviewing a district court's grant of summary judgment we must determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 922 (9th Cir.2004).

To determine whether a government employee is entitled to qualified immunity, we use a two-part test. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). First, we must determine whether, viewing the facts in the light most favorable to the plaintiff, the government employees violated the plaintiff's constitutional rights. Id. Then, if we determine that a constitutional violation has occurred, we must determine whether the rights were clearly established at the time of the violation. Id.

A

We turn first to the question of whether a policy of strip searching arrestees solely because they are classified for housing in the general population, in the absence of any reasonable suspicion, violates the arrestees' constitutional rights. Following a long history of precedent, we conclude that it clearly does.

In the first case to raise the question, Giles v. Ackerman, 746 F.2d 614 (9th Cir. 1984) (per curiam), overruled on other grounds by Hodgers-Durgin v. de la Vina, 199 F.3d 1037, 1040 n. 1 (9th Cir.1999) (en banc), we announced the governing standard that "arrestees for minor offenses may be subjected to a strip search only if jail officials have a reasonable suspicion that the particular arrestee is carrying or concealing contraband or suffering from a communicable disease." Id. at 615.6

We have revisited pre-arraignment searches several times, on each occasion reaffirming the individualized reasonable suspicion standard laid out in Giles. In Ward v. County of San Diego, 791 F.2d 1329 (9th Cir.1986), we found no qualified immunity for a San Diego County Sheriff who had enacted a blanket strip search policy which resulted in the visual body cavity search of a misdemeanor arrestee prior to a determination regarding the arrestee's eligibility for an own recognizance release. In Thompson v. City of Los Angeles, 885 F.2d 1439 (9th Cir.1989), we held that the strip search of a person arrested for felony grand theft auto was valid because the charge was "sufficiently associated with violence to justify a visual strip search." Id. at 1447. The next year, however, we held unconstitutional the City of Los Angeles's blanket strip search policy which subjected all felony arrestees to a visual body cavity search. Kennedy v. Los Angeles Police Dept., 901 F.2d 702, 714 (9th Cir.1990), abrogated on other grounds by Hunter v. Bryant, 502 U.S. 224, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991) (per curiam). In Kennedy, we emphasized that while a charge of a violent offense, such as the charge in Thompson, may justify a strip search, the mere fact of a felony charge bears no reasonable relationship to institutional security concerns. Id. at 713 ("[T]he enacted policy, if it is to be constitutional, must be `reasonably related' to the penal institution's interest in maintaining security."). In short, under controlling circuit precedent, a blanket strip search of pre-arraignment arrestees, no matter how minor the offense and in absence of reasonable suspicion, violates the Constitution.

Defendants argue that San Francisco's policy is constitutional under Bell v. Wolfish, 441 U.S....

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