# Young v. Pena > District Court, W.D. Washington · November 21, 2019 URL: https://www.frixlaw.com/law-library/cases/10699898 ## Case - **Court:** District Court, W.D. Washington - **Decided:** November 21, 2019 - **Opinion:** 100trialcourt - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10699898 ## How later opinions describe it (automated extraction) - discussing Saucier v. Katz, 533 U.S. 194, 201 20 (2001) ## Opinion text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10699898. Public record. Not legal advice.