D.C.Cir.: Female strip search class action denied; a concurrence worth reading

A powerful dissent on the power of government to indiscriminately strip search, post-Florence. Johnson v. Gov’t of the Dist. of Columbia, 2014 U.S. App. LEXIS 14760 (D.C. Cir. August 1, 2014):

Pillard, Circuit Judge, concurring in the denial of rehearing en banc: This case was brought by a plaintiff class of approximately 1,600 women arrested between 1999 and 2003 in the District of Columbia for non-violent, non-drug minor offenses (such as traffic stops) who were held briefly at the D.C. Superior Court cellblock. Each of these women was subject to a visual body-cavity strip search pending her appearance before a judge or magistrate. The plaintiffs seek rehearing en banc of the panel decision dismissing their Fourth Amendment Bivens claims. Those claims challenge the practice of the former U.S. Marshal for the D.C. Superior Court of conducting pre-arraignment body-cavity searches of women, but not men, without any warrant or even individualized suspicion that the women were carrying contraband in their body cavities. Our court, in Bame v. Dillard, 637 F.3d 380 (D.C. Cir. 2011), and in this case following Bame, held that any constitutional rights the Marshal may have violated were not clearly established, entitling him to qualified immunity. Plaintiffs challenge the panel decision as erroneous and in conflict with Bell v. Wolfish, 441 U.S. 520 (1979), and Florence v. Board of Chosen Freeholders, 132 S. Ct. 1510 (2012), and as contrary to the consensus of every other circuit to have addressed the issue of the constitutionality of the type of suspicionless body-cavity searches in this case.

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Notably, no circuit has sustained a blanket policy of strip searching arrestees who are not introduced into a general prison population. The circuit decisions cited in Dillard’s brief that sustained strip searches are no exception. See Bull v. City & County of San Francisco, 595 F.3d 964 (9th Cir. 2010) (en banc); Powell v. Barrett, 541 F.3d 1298 (11th Cir. 2008) (en banc). Powell involved detainees being booked into the general population of the detention facility, 541 F.3d at 1302; it provides no authority for suspicionless strip searches of the Superior Court arrestees in this case. And Bull emphasized that its approval of suspicionless strip searches “applies only to detainees classified to enter the general corrections facility population.” 595 F.3d at 981 n.17. There is simply no case from any circuit authorizing what the Marshal did here. It thus remains clear under the Fourth Amendment that the searches in both Bame and Johnson of persons not held in the general population of any prison cannot be justified without at least individualized suspicion.

Marshal Dillard nonetheless contends that Florence applies here despite the Supreme Court’s limitation of its holding to persons intermingled with the general prison population, on the ground that the plaintiffs “were in what was viewed in Superior Court as general population.” Todd Dillard’s Opp’n to Rehearing and Rehearing En Banc at 7, Johnson, 734 F.3d 1194 (No. 11-5115). It was, however, undisputed that the class members in this case were not held in a general prison population, but were released “without spending any time in general jail populations.” Johnson, 734 F.3d at 1202 (citing Bame, 637 F.3d at 382-83). The District Court specifically distinguished the factual scenarios in Florence, Bull, and Powell as involving prisoners who “were about to be entered into, or co-mingled with, a general jail or detention facility population” whereas this case involved Superior Court arrestees, most of whom “were only held temporarily at the D.C. Superior Court and then either released from the courtroom the same day or transferred to the D.C. Jail.” Johnson v. District of Columbia, 780 F. Supp. 2d 62, 74 (D.D.C. 2011); see also Bame v. Dillard, 647 F. Supp. 2d 43, 49 (D.D.C. 2009) (noting that the plaintiffs “were placed in holding cells again, exclusively with one another. They were not commingled with the general inmate population.”); id. at 53 (plaintiffs were “held together at all times and not commingled with the general inmate population”). Indeed, as we recognized, “[r]oughly eighty percent of female arrestees were released following [arraignment] hearings” and thus never were sent to the general population at the D.C. Jail. Johnson, 734 F.3d at 1197. That fact clearly and materially distinguishes Bame and this case from those that Dillard cites.

Our constitutional protections against visual body-cavity searches, though narrow, are far from insignificant. When we bear in mind the breadth of the government’s constitutional latitude to search people in the interests of safety, the importance of those limits the Constitution does impose is even more vivid. The Fourth Amendment permits a warrantless arrest whenever an officer has probable cause to believe a person has committed a criminal offense, no matter how minor, Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001), and deference to prison security permits blanket visual body-cavity strip searches of detainees placed in the general prison population, Florence, 132 S. Ct. at 1522-23. But the government’s power to search our bodies is not unlimited. Security concerns regarding arrestees held at the Superior Court cellblock while they wait to appear in court, all of whom are innocent until proven guilty, cannot be equated with the challenges of managing a prison population of convicted prisoners or persons awaiting trial but judicially determined unsafe for release on bail. Searching body cavities of presumptively non-dangerous arrestees to prevent them from carrying contraband to a presumptively dangerous general jail population is a security rationale that wanes when such arrestees are—as they reasonably should be—segregated from other prisoners. Bell and Florence’s approval of strip searches in the former context does not justify their approval in the latter context, as every circuit to address the issue, other than ours, has recognized.