Friday, February 12, 2010

Ninth Circuit Rules Against Class in Constitutional Challenge to County Strip Search Policy: Bull v. City & County of San Francisco

On January 26, 2010, I reported on a district court opinion in Jaegel v. County of Alameda, 2010 U.S. Dist. LEXIS 5125 (N.D. Cal. Jan. 22, 2010), wherein the plaintiffs sought certification of claims arising out of a strip search policy maintained as part of booking procedures at the Alameda County Jail (prior post located here). In that case, the district court certified plaintiff’s Section 1983 claim, but declined to certify statutory claims predicated upon California Penal Code § 4030. On February 9, 2010, the Ninth Circuit considered the merits of a similar class-wide challenge to San Francisco County's strip search policy in Bull v. City & County of San Francisco, 2010 U.S. App. LEXIS 2684, 47-48 (9th Cir. Cal. Feb. 9, 2010).  In that case, the Ninth Circuit reversed the district court’s summary judgment ruling which found the policy unconstitutional.

In reaching its decision, the Bull Court overruled prior panel decisions, developing a new standard for evaluating the reasonableness of a strip search policy:
We agree with the reasoning of the Eleventh Circuit that the rights of arrestees placed in custodial housing with the general jail population "are not violated by a policy or practice of strip searching each one of them as part of the booking process, provided that the searches are no more intrusive on privacy interests than those upheld in the Bell case," and the searches are "not conducted in an abusive manner." Powell, 541 F.3d at 1314; cf. Archuleta v. Wagner, 523 F.3d 1278, 1284 (10th Cir. 2008) (upholding searches of arrestees intermingled with general population of a corrections facility, but not those awaiting bail, and stating that when an arrestee is kept in a holding cell the "obvious security concerns inherent in a situation where the detainee will be placed in the general prison population are simply not apparent"). We therefore overrule our own panel opinions in Thompson and Giles.
Bull, 2010 U.S. App. LEXIS 2684, at 47-48.

Based on this new standard, the Court found the San Francisco policy facially reasonable under the Fourth Amendment:
In light of governing Supreme Court precedent, and given the circumstances presented here, we conclude that San Francisco's policy requiring strip searches of all arrestees classified for custodial housing in the general population was facially reasonable under the Fourth Amendment, notwithstanding the lack of individualized reasonable suspicion as to the individuals searched. Because the policy did not violate plaintiffs' Fourth Amendment 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.
Bull, 2010 U.S. App. LEXIS 2684, at 52-53.

Importantly, the Court’s decision does not impact whether such policy violated California Penal Code § 4030, which the Court noted was not before the Court. Id., at12, n.5

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