S.D.Miss. declines to find potential Florence exceptions “clearly established law”

Strip searches of everybody at the jail, even those not going into general population, might be unreasonable even under Florence which left that question open, but, for civil liability, the question is “clearly established law,” and it’s not. Wamble v. County of Jones, 2012 U.S. Dist. LEXIS 79969 (S.D. Miss. June 8, 2012)*:

In the wake of Florence, the central question is whether Merrill violated clearly established law by allegedly participating in the search of Wamble. Merrill argues that he could not have violated clearly established law because the Florence Court left “open the possibility of exceptions” to the blanket rule that newly arrested persons may be strip-searched without reasonable suspicion if they are going to be booked into the general population of a detention facility. Florence, 132 S. Ct. at 1523 (Roberts, J., concurring).

When there is an “open question” as to whether certain conduct is unconstitutional, the law cannot be considered clearly established. See Mitchell v. Forsyth, 472 U.S. 511, 535 (1985) (holding that defendant was entitled to qualified immunity because “[t]he decisive fact is not that Mitchell’s position turned out to be incorrect, but that the question was open at the time he acted”); Shepard v. Ripperger, 57 Fed. App’x 270, 272 (8th Cir.2003) (“Because the legality of refusing to identify oneself to police is an open question, it is not clearly established law for the purpose of denying qualified immunity.” (citations omitted)); Polk v. District of Columbia, 121 F. Supp. 2d 56, 70 -71 (D.D.C.,2000) (“In both Davis v. Scherer and Mitchell v. Forsyth, the Supreme Court’s holdings that the law was not clearly established turned on the fact that there was an ‘open question’ whether the Constitution outlawed the conduct at issue.” (citations omitted)).

Thus, “[g]iven the Supreme Court’s express reservation of the question of whether” detainees who are not going to be held overnight in a cell with other inmates may be strip-searched without a reasonable suspicion, the “contours” of Wamble’s right to be free from unreasonable searches are “not sufficiently clear that the unlawfulness” of the search to which he was subjected would be “apparent” to all reasonable officials.