discussing Saucier v. Katz, 533 U.S. 194, 201 20 (2001)
How later courts described this case
- discussing Saucier v. Katz, 533 U.S. 194, 201 20 (2001)
Written by the judges who cited it.
The opinion
1
2
3
4
5
UNITED STATES DISTRICT COURT
6
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
7
8 DANIEL YOUNG, et al.,
9 Plaintiffs, Case No. C18-1007-JLR-MLP
10 v. ORDER SCHEDULING ORAL
ARGUMENT ON DEFENDANTS’
11 PATRICK E. PENA, et al., SECOND MOTION FOR SUMMARY
JUDGMENT
12 Defendants.
13
14 This matter comes before the Court on Defendants’ second motion for summary
15 judgment in this matter. (Dkt. # 61.) Defendants’ primary argument is that the Court should
16 dismiss this case on grounds of qualified immunity, because “the caselaw draws a clear
17 distinction between searches where law enforcement views a naked body or genitalia, and much
18 less invasive searches that involve viewing undergarments.” (Id. at 11.) In support of this
19 argument, Defendants cite to numerous federal cases where, indeed, federal courts held that strip
20 searches violated the Fourth Amendment because police officers exposed the subject’s genitalia,
21 buttocks, or breasts during the search, at times in a public setting. (Id. at 9-10.)
22 However, in support of Defendants’ contention that courts have found that “searches that
23 involve the exposure of an undergarment outside of the public view are reasonable and do not
1 violate the Fourth Amendment,” which is the crux of Defendants’ second motion for summary
2 judgment, the authority cited by Defendants appears sorely lacking. Defendants appear to
3 primarily rely on a Ninth Circuit case from 1978, United States v. Palmer, in which a customs
4 agent ordered a subject to lift her skirt, revealing her girdle, and the court held that it was not a
5 strip search. 575 F.2d 721, 722-23 (9th Cir. 1978). Similarly, Defendants cite to United States v.
6 Dorlouis, in which the Fourth Circuit held that requiring a subject to pull down his pants in the
7 privacy of a police van, revealing his boxer shorts, was not a strip search. 107 F.3d 248 (4th Cir.
8 1997). Defendants represent the holdings of these cases accurately, although they are not recent
9 decisions.
10 Defendants fail to acknowledge that the third and final case they cite for this proposition,
11 Scallion v. City of Hawthorne, Case No. C05-6849-GAF, 2006 WL 8436208 (C.D. Cal.
12 December 19, 2006), was reversed by the Ninth Circuit due to concerns that the search at issue
13 violated the Fourth Amendment. Specifically, the district court in Scallion held that when a
14 police officer who was helping a subject remove a bellybutton piercing lifted her shirt, exposing
15 her bare breasts, his conduct did not constitute a strip search. Id. at *7. The district court held
16 “like Palmer, in which looking underneath a skirt to search for contraband in a girdle was not a
17 strip search, lifting Scallion’s shirt to search for contraband in a bra or the breast area does not
18 fall within the definition of an illegal strip search, even though it turned out that Scallion was not
19 wearing a bra.” Id. The Ninth Circuit reversed this decision, finding that the “district court erred
20 . . . by ruling that the booking search of Scallion at the police station was reasonable and was not
21 an illegal strip search in violation of the Fourth Amendment. There remain genuine issues of
22 material fact with respect to the circumstances of the search and Officer Newenham’s statement
23 that she ‘examined’ Scallion’s breast area for contraband.” Scallion v. City of Hawthorne, 280
1 Fed. Appx. 671, 673, 2008 WL 2230070 (9th Cir. May 29, 2008) (citing Palmer, 575 F.2d at 723
2 (lifting of a skirt to reveal an undergarment “tend[ed] toward the strip search in that if conducted
3 in public it can be said to result in embarrassment to one of reasonable sensibilities”); Cal. Penal
4 Code § 4030(c) (defining a strip search as “a search which requires a person to remove or
5 arrange some or all of his or her clothing so as to permit a visual inspection of the underclothing,
6 breasts, buttocks, or genitalia of such person”).)
7 Most significantly, the Court notes that in reversing the lower court, the Ninth Circuit in
8 Hawthorne cited to the California Penal Code definition of a “strip search,” which includes
9 requiring a person to remove or arrange their clothing to permit a visual inspection of
10 underclothing, as well as breasts, buttocks, or genitalia of such person. See Cal. Penal Code §
11 4030(c). Nowhere in Defendants’ brief do they acknowledge the fact that the “Searches and
12 Seizures” chapter of Washington’s Criminal Procedure Code, which would clearly govern the
13 conduct of Sgt. Johnson and Officer Hauri, includes a nearly identical definition of “strip
14 search.” Specifically, RCW 10.79.070(1) defines “strip search” as “having a person remove or
15 arrange some or all of his or her clothing so as to permit an inspection of the genitals, buttocks,
16 anus, or undergarments of the person or breasts of a female person.” (emphasis added).
17 Defendants ask the Court to find that Plaintiff’s alleged privacy right to be free from the
18 search at issue was not “clearly established” at the time Defendants took the photographs. See
19 Pearson v. Callahan, 555 U.S. 223, 232 (2009) (discussing Saucier v. Katz, 533 U.S. 194, 201
20 (2001)). To determine whether a right was clearly established, “the standard is one of fair
21 warning: where the contours of the right have been defined with sufficient specificity that a state
22 official had fair warning that [his] conduct deprived a victim of his rights, [he] is not entitled to
23 qualified immunity.” Serrano v. Francis, 345 F.3d 1071, 1077 (9th Cir. 2003) (quotation marks
1 and citation omitted). “This is not to say that an official action is protected by qualified immunity
2 unless the very action in question has previously been held unlawful; but it is to say that in the
3 light of pre-existing law the unlawfulness must be apparent.” Anderson v. Creighton, 483 U.S.
4 635, 640 (1987) (internal citations omitted); Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (“We
5 do not require a case directly on point, but existing precedent must have placed the statutory or
6 constitutional question beyond debate.”).
7 To date, Defendants have not attempted to address how RCW 10.79.070(1) affects the
8 qualified immunity analysis. If the officers asked medical personnel to move Plaintiff’s hospital
9 gown so as to permit inspection of the use of force injuries on his body – and in this case it is
10 undisputed that this visual inspection included inspection of his undergarments – wouldn’t the
11 officers have had “fair warning” that they were still conducting a “strip search” of a person who
12 was not under arrest?
13 The Court ORDERS the parties to appear for oral argument telephonically on Monday,
14 November 25, 2019 at 1:00 p.m. to address these issues, and Defendants’ second motion for
15 summary judgment. The parties may, but are not required, to file a supplemental brief of no more
16 than six (6) pages addressing the issue of qualified immunity by 10:00 a.m. on Monday before
17 the hearing.
18 The Clerk is directed to send copies of this Order to the parties and to the Honorable
19 James L. Robart.
20 Dated this 21st day of November, 2019.
21
A
22 MICHELLE L. PETERSON
United States Magistrate Judge
23