Savard v. Rhode Island

United States Court of Appeals

For the First Circuit

No. 02-1568

ANGELA SAVARD, ET AL.,

Plaintiffs, Appellants,

v.

STATE OF RHODE ISLAND, ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Mary M. Lisi, U.S. District Judge]

Before

Boudin, Chief Judge,

Coffin and Bownes, Senior Circuit Judges,

Torruella, Selya, Lynch, Lipez and Howard, Circuit Judges.

Gregory A. Belzley, with whom Dinsmore & Shohl LLP and Thomas

W. Kelly were on brief, for appellants.

Rebecca Tedford Partington, Deputy Chief, Civil Division, with

whom Patrick C. Lynch, Attorney General, was on brief, for

appellees.

___

JUDGMENT AND

OPINIONS EN BANC

August 4, 2003

This appeal having been considered by the court en banc, the

judgment of the district court is affirmed by an equally divided

court. The opinions that follow reflect the views of the

participating judges.

— Opinions Follow —

By the Court

________/s/______________

Richard C. Donovan, Clerk

SELYA, Circuit Judge (with whom BOUDIN, Chief Judge, and

LYNCH and HOWARD, Circuit Judges, join). The plaintiffs, all of

whom were arrested in Rhode Island for non-violent, non-drug-

related misdemeanors, were subjected to unconstitutional searches

of their persons incident to their detention at the Adult

Correctional Institutions (the ACI). These searches, conducted

pursuant to a longstanding institutional policy, encompassed both

strip searches (i.e., visual inspections of the naked body) and

visual body cavity searches (i.e., inspections of the anal and

genital areas).1 After the courts struck down the strip search

policy, the plaintiffs sued the State of Rhode Island and a number

of prison officials for damages sustained as a result of the

illegal intrusions.

The plaintiffs' suit invoked 42 U.S.C. § 1983 (2000).

Because the State is immune from suits for damages under section

1983, see Will v. Mich. Dep't of State Police, 491 U.S. 58, 71

(1989); Johnson v. Rodriguez, 943 F.2d 104, 108-09 (1st Cir. 1991),

the controversy before us focuses on the liability vel non of the

individual defendants. After some preliminary skirmishing, the

district court entered summary judgment in favor of those

defendants on the basis of qualified immunity. A panel of this

court reversed that ruling, but the full court subsequently granted

1

For ease in reference, we sometimes use the shorthand term

"strip search" to describe both practices.

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rehearing en banc and (as is customary in such instances) ordered

the panel opinion withdrawn. The court now divides equally and

thus affirms the district court's ruling. The judges who subscribe

to this opinion believe that affirmance is fully warranted: upon

a broad review of the preexisting law and its application to the

unusual situation at the ACI, we conclude that, when the underlying

events occurred, prudent prison officials reasonably could have

believed that Rhode Island's strip search policy was

constitutional.

I. BACKGROUND

In reviewing a grant of summary judgment, we rehearse the

facts in the light most sympathetic to the non-moving parties

(here, the plaintiffs), indulging all reasonable inferences in

their favor. See, e.g., Suarez v. Pueblo Int'l, Inc., 229 F.3d 49,

53 (1st Cir. 2000). Here, however, that praxis has little bearing,

for the facts upon which our decision turns are largely undisputed.

Unlike other states, Rhode Island has no regional or

county detention facilities. It operates only a single, all-

purpose penitentiary: the ACI. Centrally located in Cranston,

Rhode Island, the ACI comprises seven separate maximum security

facilities. Two of those units — one for women and the other for

men — receive all persons committed to the custody of the

Department of Corrections regardless of the nature of their

offenses. At the times material hereto, these intake facilities

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housed an array of prisoners ranging from newly sentenced felons to

convicts under protective custody to pretrial detainees to

arrestees. All of these individuals, except for detainees held in

protective custody, were commingled while in various parts of the

intake facilities. Detainees held in protective custody used the

same areas as other inmates but at different times.

During the currency of this arrangement, Rhode Island

maintained written policies that required all new entrants into the

ACI, including misdemeanant arrestees, to undergo strip and body

cavity searches. In 1999, Craig Roberts ran afoul of this policy.

Local police, having made a routine stop of a motor vehicle in

which Roberts was a passenger, learned that the Rhode Island Family

Court had issued a body attachment — the functional equivalent of

a writ of arrest — addressed to him. Although Roberts protested

that the body attachment had been withdrawn and produced what

purported to be documentation to that effect, the police detained

him.

In accordance with the customary procedure, the police

transported Roberts to the ACI. Upon his admission, he was twice

subjected to strip and body cavity searches. These searches

uncovered no drugs, weapons, or other contraband. Shortly

thereafter, a sheriff verified that the body attachment had been

withdrawn. Roberts was released.

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Roberts was gone but not forgotten. He brought suit in

the federal district court alleging that the strip searches had

violated his constitutional rights. Upon cross-motions for summary

judgment, the district court ruled that the strip searches had

offended Roberts's rights under the Fourth Amendment and enjoined

the State from continuing to enforce the written policies then in

effect. Roberts v. Rhode Island, 175 F. Supp. 2d 176, 183 (D.R.I.

2000) (Roberts I). We affirmed. Roberts v. Rhode Island, 239 F.3d

107, 113 (1st Cir. 2001) (Roberts II).

Rhode Island abandoned the proscribed policy from and

after the date of the district court's decision (March 17, 2000).

Thereafter, eighteen plaintiffs — all of whom had been arrested for

non-violent, non-drug-related misdemeanors and subjected to strip

and body cavity searches prior to that date — brought a new action

in the federal district court on behalf of themselves and all

others similarly situated. In their class-action complaint, the

plaintiffs alleged that the searches violated their constitutional

rights and sought money damages.

The suit named as defendants the State and a galaxy of

prison officials. Upon the defendants' motion, the district court

dismissed Roberts's claim for damages based on the doctrine of res

judicata. See, e.g., Allen v. McCurry, 449 U.S. 90, 94 (1980)

(stating that res judicata precludes a plaintiff from relitigating

issues that were or could have been raised in an earlier action

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against the same defendant prescinding from the same set of

operative facts); Kale v. Combined Ins. Co., 924 F.2d 1161, 1165-66

(1st Cir. 1991) (same). The court thereafter entered summary

judgment against the remaining plaintiffs. The court reasoned

that, prior to the decision in Roberts I, it was not clearly

established that prison officials needed some particularized

suspicion before strip-searching misdemeanant arrestees who were

about to be introduced into the general population at a maximum

security prison (and, therefore, that the defendants enjoyed the

protection of qualified immunity). This appeal followed.

II. ANALYSIS

We review orders granting summary judgment de novo.

Plumley v. S. Container, Inc., 303 F.3d 364, 369 (1st Cir. 2002).

Where, as here, a party's entitlement to summary judgment hinges on

a claim of qualified immunity, we must balance the need to

vindicate constitutional rights against the need to insulate public

officials from civil litigation that might unduly inhibit the

assiduous discharge of their duties. See Anderson v. Creighton,

483 U.S. 635, 638 (1987). In balancing those competing needs, we

employ a three-part algorithm. Suboh v. Dist. Att'y's Office, 298

F.3d 81, 90 (1st Cir. 2002); Hatch v. Dep't for Children, Youth and

Their Families, 274 F.3d 12, 20 (1st Cir. 2001). The threshold

question is whether the plaintiffs have established a

constitutional violation. Hope v. Pelzer, 536 U.S. 730, 736

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(2002); Saucier v. Katz, 533 U.S. 194, 201 (2001). The second

question deals with fair warning; it asks whether the law was

clearly established at the time of the constitutional violation.

Hope, 536 U.S. at 739-41; Anderson, 483 U.S. at 638-40. The final

question is whether a reasonable official, situated similarly to

the defendant(s), would have understood that the conduct at issue

contravened the clearly established law. Saucier, 533 U.S. at 202.

In this case, the first part of the algorithm need not

detain us. We acknowledge that strip searches are intrusive and

degrading (and, therefore, should not be unreservedly available to

law enforcement officers). The Roberts decisions exemplify this

thinking; they hold unequivocally that the ACI's policy of strip-

searching persons arrested for non-violent, non-drug-related

misdemeanors, in the absence of particularized suspicion, violated

the Constitution. See Roberts II, 239 F.3d at 113; Roberts I, 175

F. Supp. 2d at 183. The questions on which this appeal turns,

therefore, involve the second and third branches of the qualified

immunity algorithm. We must determine whether the law was clearly

established, prior to March 17, 2000, to the effect that prison

officials need at least reasonable suspicion before subjecting

misdemeanant arrestees to strip searches when introducing them into

the general population of a maximum security prison, and whether a

reasonable prison official, situated similarly to the defendants,

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would have understood at that time that the policy in place at the

ACI transgressed the Constitution.

Although the bases for these determinations often

overlap, the instant plaintiffs cannot prevail unless we determine

both questions favorably to them. Thus, we begin our analysis with

an examination of whether the law can be said to have been "clearly

established" at or before the critical time (March 17, 2000).2 The

degree to which the law was clearly established as of a particular

date is a matter for the court to determine. Elder v. Holloway,

510 U.S. 510, 516 (1994); Siegert v. Gilley, 500 U.S. 226, 232

(1991); Diaz v. Martinez, 112 F.3d 1, 3 (1st Cir. 1997).

The fundamental justification for the qualified immunity

defense is that public officials performing discretionary functions

should be free to act without fear of punitive litigation except

when they fairly can anticipate that their conduct will give rise

to liability for damages. Davis v. Scherer, 468 U.S. 183, 195

(1984). That anticipation depends, in large part, on the extent to

which legal rules are clearly established. Harlow v. Fitzgerald,

457 U.S. 800, 818 (1982). The standard is an objective one.

Anderson, 483 U.S. at 639; Iacobucci v. Boulter, 193 F.3d 14, 21

(1st Cir. 1999). It follows, then, that an inquiry into the

reasonableness of an officer's conduct must focus on the

2

Because we answer this question in the negative, see text

infra, we need not address the final prong of the qualified

immunity algorithm.

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discernible contours of the law at the time of the alleged act or

omission. Hatch, 274 F.3d at 22-23.

To attain the necessary perspective, an inquiring court

must look back in time and conduct the juridical equivalent of an

archeological dig. The court must canvass controlling authority in

its own jurisdiction and, if none exists, attempt to fathom whether

there is a consensus of persuasive authority elsewhere. See Wilson

v. Layne, 526 U.S. 603, 617 (1999); Brady v. Dill, 187 F.3d 104,

116 (1st Cir. 1999).

This exploration is not limited to cases directly on

point. Because "officials can still be on notice that their

conduct violates established law even in novel factual

circumstances," Hope, 536 U.S. at 741, overcoming a qualified

immunity defense does not require a plaintiff to show that either

the particular conduct complained of or some materially

indistinguishable conduct has previously been found unlawful. See

United States v. Lanier, 520 U.S. 259, 268-71 (1997); Mitchell v.

Forsyth, 472 U.S. 511, 535 n.12 (1985). Still, the relevant legal

rights and obligations must be particularized enough that a

reasonable official can be expected to extrapolate from them and

conclude that a certain course of conduct will violate the law.

Saucier, 533 U.S. at 201-02. Consequently, if the operative legal

principles are clearly established only at a level of generality so

high that officials cannot fairly anticipate the legal consequences

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of specific actions, then the requisite notice is lacking. The

bottom line is that the qualified immunity defense prevails unless

the unlawfulness of the challenged conduct is "apparent."

Anderson, 483 U.S. at 640.

Against this backdrop, we turn to the degree of clarity

in the law relevant to this case. In conducting our appraisal, we

have endeavored to take into account all the decisional law, in and

out of our own circuit, that was on the books at the time of the

events in question. See Lanier, 520 U.S. at 268-69; Hatch, 274

F.3d at 23.

At the margins, the lines are easily plotted. On the one

hand, courts long have viewed blanket strip searches as extreme

intrusions upon Fourth Amendment rights. See, e.g., Bell v.

Wolfish, 441 U.S. 520, 558 (1979); Mary Beth G. v. City of Chicago,

723 F.2d 1263, 1272 (7th Cir. 1983). On the other hand, security

is a paramount concern in prison environments, and courts long have

recognized that unpleasantly intrusive security measures, up to and

including blanket strip searches, may be proper in such settings.

See Bell, 441 U.S. at 560-62; Bonitz v. Fair, 804 F.2d 164, 170

(1st Cir. 1986). The constitutional line that separates

permissible from impermissible uses of these methods is imprecise

and context-specific. In the last analysis, plotting that line

requires a determination of what is reasonable under a given set of

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circumstances. Bell, 441 U.S. at 559; United States v. Chamorro,

687 F.2d 1, 5 (1st Cir. 1982).

The difficulty, of course, is that this formulation,

while legally respectable, does not go very far toward curing the

imprecision with which decisionmakers must grapple. This is

inevitable — or nearly so — given the subject matter. In the best

of circumstances, "[t]he test of reasonableness under the Fourth

Amendment is not capable of precise definition or mechanical

application." Bell, 441 U.S. at 559. Indeed, the Supreme Court

itself has acknowledged, in a qualified immunity case, "the

difficulty of determining whether particular searches or seizures

comport with the Fourth Amendment." Anderson, 483 U.S. at 644.

And that difficulty is compounded where, as here, the determination

involves gauging whether a serious intrusion is reasonable in an

incarcerative environment. See Swain v. Spinney, 117 F.3d 1, 9

(1st Cir. 1997).

With these basic tenets in mind, we examine the two First

Circuit decisions that bear most closely on this case. Neither

comparison is very exact.

We start with Swain. There, police arrested a woman on

suspicion of narcotics possession and temporarily held her in a

jail cell by herself. Id. at 8. The officers, following

institutional practice, strip-searched her. Id. at 4-5. We

declared the strip search unconstitutional, holding that strip-

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searching an arrestee ordinarily requires at least reasonable

suspicion that the person arrested is concealing contraband or

weapons. Id. at 7. We pointed out that, in Swain's case, there

was no basis for any such suspicion. Id. at 8-9. Moreover, she

was being held in virtual isolation, so there was no risk that she

would come in contact with other prisoners (and, thus, succeed in

smuggling contraband or weapons into the jail). Id. at 8.

The plaintiffs contend that Swain clearly established the

law relevant to this case. It is, however, an oversimplification

to say that, because we applied the reasonable suspicion standard

to strip searches in a particular custodial context, the

handwriting was on the wall that the same standard would apply to

the ACI as well. There are important differences between detaining

an arrestee in virtual isolation and introducing an arrestee into

the general population of a maximum security prison.

Making this point brings us to our second case — a

decision that the defendants insist has decretory significance

here. That case is Arruda v. Fair, 710 F.2d 886 (1st Cir. 1983)

(Breyer, J.). There, we upheld a blanket strip search policy with

regard to prison inmates. Id. at 888. We reasoned that because

the searches involved the most dangerous of prisoners as they

departed from, and entered into, a particularly sensitive area of

a maximum security prison, security concerns provided a compelling

justification for the institution's policy. Id. at 887-88.

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As in Arruda, the defendants in this case attempt to

justify their blanket strip search policy as a necessary (or, at

least, reasonable) means of ensuring institutional security. They

maintain that the unique nature of the ACI's intake facilities, in

which arrestees are intermingled with maximum security prisoners,

raises concerns similar to those raised in Arruda and warrants the

implementation of such a policy. This argument has considerable

force, for Arruda reasonably can be read as saying that the risk

that any prisoner in a maximum security facility might receive

weapons or contraband from visitors, renegade guards, or others is

enough to justify a blanket strip search policy. But despite its

broad language, Arruda involved strip searches of convicted felons,

not misdemeanant arrestees — and that disparity cannot idly be

brushed aside.

In the end, we recognize that both Swain and Arruda offer

valuable insights, but that neither is a very exact match. While

Swain makes clear that strip searches ought not lightly to be

indulged, the factual context of the case presented rather minimal

security concerns. And while Arruda makes clear that institutional

security needs may require intrusive measures in a maximum security

setting, that case dealt not with persons arrested for relatively

innocuous misdemeanors, but, rather, with hardened criminals. So

long as the facts in these cases are distinguishable in a fair way

from the facts at hand — and we believe that they are — then

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neither of them can be said to have clearly established the law for

purposes of a qualified immunity determination in the instant case.

See Saucier, 533 U.S. at 202-03.

We recognized much the same point in Roberts II, 239 F.3d

at 111 (noting that "[t]he institutional security concerns in play

here fall somewhere between those exhibited in Swain, which were

insufficient to support a search, and those in Arruda and Bell,

which made broad-based searches without individual suspicion

reasonable"). To be sure, we ultimately placed the case "on the

Swain side of the constitutional line." Id. But our

acknowledgment that the ACI's strip search policy fell into the

gray area between Swain and Arruda carries more weight for present

purposes than our actual holding. A holding on the merits is not

dispositive on the issue of qualified immunity. See Cookish v.

Powell, 945 F.2d 441, 443 (1st Cir. 1991); Morales v. Ramirez, 906

F.2d 784, 787 (1st Cir. 1990). The law does not expect a public

official, faced with the need to make an objectively reasonable

real-world judgment, to anticipate precisely the legal conclusions

that will be reached by a panel of federal appellate judges after

briefing, arguments, and full-fledged review. See Wilson, 526 U.S.

at 617.

The plaintiffs, ably represented, go beyond Swain and

Arruda in an effort to convince us that reasonable correctional

officials should have realized the unconstitutionality of the ACI's

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strip search policy prior to March 17, 2000. They point to a line

of cases stating that blanket strip searches of misdemeanant

arrestees, conducted without particularized suspicion, are

unconstitutional. See, e.g., Masters v. Crouch, 872 F.2d 1248,

1255 (6th Cir. 1989); Weber v. Dell, 804 F.2d 796, 804 (2d Cir.

1986); Stewart v. Lubbock County, 767 F.2d 153, 156-57 (5th Cir.

1985); Giles v. Ackerman, 746 F.2d 614, 618-19 (9th Cir. 1984);

Hill v. Bogans, 735 F.2d 391, 394-95 (10th Cir. 1984). These cases

come as no surprise; we cited many of them in Roberts II, 239 F.3d

at 111-13. For qualified immunity purposes, however, there are

important distinctions between these cases and the case at hand.

In the first place, all the cases upon which the

plaintiffs rely deal with detentions in local jails and police

stations. In contrast, the case before us involves detentions in

a maximum security prison. This distinction is quite meaningful:

the case law emphasizes that prison regulations may

constitutionally impinge upon fundamental rights so long as such

regulations are reasonably related to legitimate penological

interests. See, e.g., Overton v. Bazzetta, 123 S. Ct. 2162, 2167

(2003); Turner v. Safley, 482 U.S. 78, 87 (1987). Within the walls

of a maximum security prison, the need to preserve internal

security is compelling. Hudson v. Palmer, 468 U.S. 517, 526-27

(1984); Wood v. Clemons, 89 F.3d 922, 928 (1st Cir. 1996). We

think it follows that Rhode Island correctional officials

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reasonably could have regarded the stark differences between local

lockups and maximum security prisons as pivotal in deciding whether

a particular security-oriented policy was necessary. We explain

briefly.

The population of a maximum security prison tends to be

much more volatile and much less transient than that of a county

jail. See Shain v. Ellison, 273 F.3d 56, 65 (2d Cir. 2001). Thus,

it is fairly debatable whether inmates in such a facility may be

likely to arrange for an outsider to bring them weapons or other

contraband by being arrested for a minor offense. Compare, e.g.,

Watt v. City of Richardson Police Dep't, 849 F.2d 195, 198 (5th

Cir. 1988) (declaring that "a suspect jailed even temporarily on a

minor offense could have the opportunity, if not searched, to

smuggle in weapons or contraband," so that strip-searching such

suspects "is not an irrational attempt to foster . . . security"),

with, e.g., Walsh v. Franco, 849 F.2d 66, 69 (2d Cir. 1988)

(declaring that "the risk of a misdemeanor arrestee's introducing

contraband into the general jail population simply d[oes] not

warrant a strip search of all arrestees"). The debatable nature of

the question argues in favor of qualified immunity. See Goyco de

Maldonado v. Rivera, 849 F.2d 683, 688 (1st Cir. 1988) (stating

that an official "need show no more than that [the question is

close] to prevail on his qualified immunity defense"); Vazquez Rios

v. Hernandez Colon, 819 F.2d 319, 328 (1st Cir. 1987) (noting that

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"the closeness of the call suggests that [the law] could not have

been 'clearly established'").

The cases upon which the plaintiffs rely are

distinguishable in yet another salient respect. Those cases do not

gainsay that the security concerns arising out of the intermingling

of inmates are a significant counterweight in the balance that must

be struck between personal rights and practical necessities. Read

for all they are worth, the plaintiffs' cases at most deny that

this counterweight is a sufficient justification in particular

circumstances (invariably, circumstances attending an arrestee's

detention at facilities such as jails and police stations). See,

e.g., Masters, 872 F.2d at 1255; Hill, 735 F.2d at 394; Logan v.

Shealy, 660 F.2d 1007, 1013 (4th Cir. 1981). Given the unique

features of the ACI's intake facilities, the composition of the

inmate population, and the fact that the misdemeanant arrestees

generally were not searched prior to their arrival at the ACI, it

was hardly unreasonable for Rhode Island correctional officials to

calibrate the balance differently.

In point of fact, a separate line of cases has emphasized

the need to defer to the judgment of correctional officials in

addressing institutional security needs. See, e.g., Overton, 123

S. Ct. at 2167; Procunier v. Martinez, 416 U.S. 396, 404-05 (1974);

Hay v. Waldron, 834 F.2d 481, 486 (5th Cir. 1987); see also Bell,

441 U.S. at 547-48. After all, institutional security is "perhaps

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the most legitimate of all penological goals." Overton, 123 S. Ct.

at 2168; accord Pell v. Procunier, 417 U.S. 817, 823 (1974).

In an opinion that is closer to this case than any other,

the Second Circuit upheld a policy in which a prison facility

conducted random strip searches of all inmates, including pretrial

detainees. See Covino v. Patrissi, 967 F.2d 73, 80 (2d Cir. 1992).

Adverting, among other things, to the fact that the plaintiff (a

pretrial detainee) commingled with sentenced inmates who had

histories of violence and substance abuse, the court concluded that

the prison's policy was a reasonable response to the officials'

concerns.3 Id. at 78-79.

The short of the matter is that, throughout the last

quarter of the twentieth century, courts had pursued two divergent

lines of precedent. This case, as we said in Roberts II, 239 F.3d

at 111, fell along neither axis, but, rather, into the tenebrous

middle. We are mindful that there is a distinction for qualified

immunity purposes between an unconstitutional but objectively

reasonable act and a blatantly unconstitutional act. Saucier, 533

U.S. at 206; Anderson, 483 U.S. at 641. Here, the lack of any

direct precedent and the undulating contours of the law during the

relevant period combine to persuade us that the constitutional

3

Of course, the plaintiff there had been arrested for an

offense more serious than those attributed to the plaintiffs in

this case. Covino, 967 F.2d at 75 n.1. The Second Circuit did not

base its decision on this distinction, however, nor did it limit

its holding to blanket strip searches of "major" offenders.

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violation was not obvious; the defendants reasonably could have

thought, prior to Roberts I, that there was room in the law for the

ACI's strip search policy.

The plaintiffs pose one last challenge to the assertion

of a qualified immunity defense. They note that, rather than

strip-searching all arrestees, officials at the ACI could have

employed less extreme measures such as conducting pat-down searches

or segregating misdemeanant arrestees from the rest of the prison

population. In support of this view, they point to our conclusion

that the search policy was almost entirely unnecessary to control

the entry of contraband into the ACI. See Roberts II, 239 F.3d at

112. But this too involves a judgment call. In the relevant time

frame, some cases indicated that blanket strip searches are never

constitutional when the security needs they address could be met by

less intrusive means. E.g., Giles, 746 F.2d at 617; Sostre v.

Preiser, 519 F.2d 763, 764 (2d Cir. 1975). Other cases suggested

that the availability of less intrusive means is irrelevant to the

analysis so long as officials reasonably could have concluded that

such measures were more burdensome and less efficacious than

blanket strip searches. See, e.g., Bell, 441 U.S. at 559 n.40;

Hay, 834 F.2d at 485; Blackburn v. Snow, 771 F.2d 556, 566 (1st

Cir. 1985); see also Turner, 482 U.S. at 90-91 (emphasizing that

"prison officials do not have to set up and then shoot down every

conceivable alternative method of accommodating the claimant's

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constitutional complaint").4 Given this split in authority, we

find that the law on this matter was also not clearly established.

Therefore, the defendants reasonably could have believed (until the

federal court declared Rhode Island's blanket strip search policy

unconstitutional) that they were under no legal obligation to

resort to alternative measures.

Our brethren suggest that we require an exact match with

the facts of previously decided cases before we will deny a

defendant the shield of qualified immunity. That is simply not so.

What is so is that "[t]he meaning of reasonableness [of a search]

for Fourth Amendment purposes is highly situational" and requires

"a balancing of the need to search against the invasion which the

search entails." Wood, 89 F.3d at 928 (citations and internal

quotation marks omitted). The cases that our brethren cite in an

effort to show that reasonable suspicion was clearly established as

a condition precedent to a strip search of a person in custody are

no more on point than the cases, cited above, that authorize

various exceptions to that generality. Given this cacophony of

voices, a reasonable prison official, faced with the novel factual

situation that confronted those who were in charge of the ACI, had

no way of knowing which voice should guide him in drawing the

4

Indeed, the Bell Court suggested that the lack of a history

of discovered contraband on inmates' bodies might attest to the

effectiveness of this search modality as a deterrent. Bell, 441

U.S. at 559.

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Fourth Amendment balance. It is the absence of clear guidance, not

the absence of a perfect precedential match, that makes qualified

immunity appropriate here.

In this regard, our colleagues reprove us for attributing

significant weight both to the dangers inherent in commingling

violent felons with misdemeanant arrestees and to distinctions

between jails and maximum security prisons. We plead guilty to

that charge. But we attach weight to those factors because of our

respect for those who must maintain institutional security in the

most difficult of settings. Correctional officials charged with

the operation of maximum security prisons have an unenviable task

— and courts should be reluctant casually to impose on them

personal liability for damages in the absence of "standards

sufficiently clear and simple to be applied with a fair prospect of

surviving judicial second-guessing months and years [later]."

Atwater v. City of Lago Vista, 532 U.S. 318, 349 (2001).

To sum up, the district court mortally wounded the ACI's

blanket strip search policy in Roberts I, and we administered the

last rites in Roberts II. That policy is now dead and buried.

While we have found the defendants' resolution of the Fourth

Amendment balance incorrect, see Roberts II, 239 F.3d at 112-13, we

conclude that, given the mixed signals sent by the case law, the

difficulties inherent in Fourth Amendment balancing in the prison

context, the special features of the ACI, and the wide berth called

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for by the qualified immunity doctrine, the defendants, prior to

March 17, 2000, reasonably could have believed the ACI's policy to

be both justified and constitutional. Put another way, the

defendants did not have fair warning, prior to March 17, 2000, that

their conduct was unlawful. If judges can span the spectrum on

this sort of constitutional question, it would certainly be unfair

to hold the defendants liable for doing nothing more blameworthy

than guessing incorrectly about how the courts ultimately would

resolve the issue. See Wilson, 526 U.S. at 618.

III. CONCLUSION

We need go no further. This is a close case, but we do

not require public officials to foretell the course of

constitutional law with absolute accuracy in order to obtain the

balm of qualified immunity. Id. at 617. To the contrary, the

doctrine of qualified immunity is designed to protect "all but the

plainly incompetent or those who knowingly violate the law."

Malley v. Briggs, 475 U.S. 335, 341 (1986). Concluding, as we do,

that the law as it existed when the events at issue occurred did

not clearly establish that the ACI's policy authorizing blanket

strip and body cavity searches violated the plaintiffs' Fourth

Amendment rights, we would uphold the entry of summary judgment in

the defendants' favor on the basis of qualified immunity.

— Separate Opinion Follows —

-23-

BOWNES, Senior Circuit Judge, with whom COFFIN, Senior

Circuit Judge, TORRUELLA, Circuit Judge, and LIPEZ, Circuit Judge,

join. The defendants in this case were granted qualified immunity

because, according to the district court, the law did not "clearly

establish" that reasonable suspicion was needed to strip search

people arrested for non-violent, non-drug related minor offenses.

Our four respected colleagues agree with this analysis. We do not.

The opinion of our colleagues is wrong on the law, the logic that

they adopt is at odds with recent Supreme Court precedent regarding

qualified immunity, and we believe their reasoning will put

constitutional rights at risk.

It is important to keep in mind what we are dealing with

in this case. The strip searches conducted here are "perhaps 'the

greatest personal indignity' searching officials can visit upon an

individual." Blackburn v. Snow, 771 F.2d 556, 564 (1st Cir. 1985)

(quoting Bell v. Wolfish, 441 U.S. 520, 594 (1979)). According to

Rhode Island's written policies, these searches included a "visual

examination of [the] groin and rectum." Male arrestees were

required to "lift their penises and testicles on the officer's

command to provide a clear view of the groin area." Both male and

female arrestees were required "to bend over and spread the rectum

to provide a clear view of the area." Moreover, these searches

were conducted against harmless individuals. All of the plaintiffs

in this case were arrested for non-violent, non-drug related minor

-24-

offenses. By way of example, one of the plaintiffs, George Barber,

loaned his car to his son in 1993 and the son received a traffic

ticket that was never paid. Six years later, Barber was arrested

because of the unpaid ticket, held at the Adult Correctional

Institutions ("the ACI") overnight and strip searched twice.

Another plaintiff, Stephanie Clark, called police for assistance

after an auto accident and was arrested because a computer check

showed an outstanding arrest warrant for her failure to appear at

a probation review. Clark had already finished her probation and

the warrant was issued in error. She was taken to the ACI and

strip searched twice.

With these facts in mind, we turn to the legal issues in

this case. We begin with whether it was the "clearly established"

law in this circuit, as of March 17, 2000, that prison officials

needed reasonable suspicion to strip search non-violent, non-drug

related minor offense arrestees.5 "One tried and true way of

determining whether [a] right was clearly established . . . is to

5

We note at the outset that the reasonable suspicion standard

is not particularly demanding. Reasonable suspicion is "something

stronger than a mere hunch, but something weaker than probable

cause." Wood v. Clemons, 89 F.3d 922, 929 (1st Cir. 1996)

(citation and quotation marks omitted). It is a standard that can

be satisfied by a wide range of circumstances, including "the crime

charged, the particular characteristics of the arrestee, and/or the

circumstances of the arrest." Weber v. Dell, 804 F.2d 796, 802 (2d

Cir. 1986); see also Roberts v. Rhode Island, 239 F.3d 107, 113

(1st Cir. 2001) (Roberts II) (stating that reasonable suspicion can

be based on "observations of a particular inmate during a less

invasive pat-down frisk and clothing search, or based on contraband

found during that search").

-25-

ask whether existing case law gave the defendants fair warning that

their conduct violated the plaintiff's constitutional rights."

Suboh v. Dist. Attorney's Office of the Suffolk Dist., 298 F.3d 81,

93 (1st Cir. 2002). Our colleagues describe this inquiry as an

archeological dig, yet focus on only the top and bottom layers of

the excavation. See Swain v. Spinney, 117 F.3d 1 (1st Cir. 1997);

Arruda v. Fair, 710 F.2d 886 (1st Cir. 1983). Our colleagues

choose to ignore the cases that lie in the layers in between,

thereby omitting consideration of relevant precedent. A proper

qualified immunity analysis requires a court to look "at all

available case law." Hatch v. Dep't for Children, Youth and Their

Families, 274 F.3d 12, 23 (1st Cir. 2001). We will therefore

briefly trace the development of this circuit's reasonable

suspicion standard as it applies to strip searches.

The place to start is the Supreme Court's decision in

Bell v. Wolfish, 441 U.S. 520 (1979). In that case, the Court

upheld a strip and visual body cavity search of pretrial detainees

who had contact with prison visitors. Id. at 560. In doing so,

the Court conducted an analysis that balanced the need for the

searches against the invasion of personal rights. Id. Although

the Court said that the practice of strip searching individuals

"instinctively gives us the most pause," it found the searches

constitutional because of the security needs of the prison, i.e.,

the realistic possibility that contraband could pass from visitor

-26-

to detainee. Id. at 558. But the Court was clear to delineate the

scope of its holding:

[W]e deal here with the question whether

visual body-cavity inspections . . . can ever

be conducted on less than probable cause.

Balancing the significant and legitimate

security interests of the institution against

the privacy interests of the inmates, we

conclude that they can.

Id. at 560 (emphasis in original). In other words, Bell

established the ceiling; it made clear that prison officials did

not necessarily need probable cause to strip search pretrial

detainees. But Bell left the floor undefined. Still unanswered

was the question of whether prison officials needed any level of

particularized suspicion that detainees were carrying contraband or

weapons or in a position to receive them from others before

conducting strip searches.

Our early cases applying Bell to the prison environment

dealt largely with situations involving prison visitors. In one of

our first prison visitor cases, Blackburn v. Snow, 771 F.2d 556

(1st Cir. 1985), we held that:

[T]he Constitution requires a more

particularized level of suspicion to justify

the humiliating and intrusive searches

conducted here. While we need not define here

precisely what level of individualized

suspicion is required . . . a rule unabashedly

requiring none cannot be reconciled with the

Fourth Amendment.

Id. at 567; see also Cochrane v. Quattrocchi, 949 F.2d 11, 13 (1st

Cir. 1991). It is also noteworthy that we surveyed the legal

-27-

landscape as it existed at the time and grouped arrestees into the

category of strip search scenarios in which particularized

suspicion was necessary. See Blackburn, 771 F.2d at 565. This

grouping was merely a foreshadowing of things to come.

In Wood v. Clemons, 89 F.3d 922 (1st Cir. 1996), we

clarified that the level of particularized suspicion required

before subjecting prison visitors to strip searches was "reasonable

suspicion." Id. at 929. We said that "a strip search cannot be

justified absent some quantum of individualized suspicion. In

determining the level of individualized suspicion . . . courts have

converged upon one common benchmark: the standard of 'reasonable

suspicion.'" Id. at 928 (emphasis in original) (citations

omitted).

Our cases addressing the reasonable suspicion standard in

the context of strip and visual body cavity searches were not

limited to prison visitors. We required reasonable suspicion for

strip searches at border crossings. See United States v.

Uricoechea-Casallas, 946 F.2d 162, 166 (1st Cir. 1991). And most

significantly for this case, we held in Swain v. Spinney, 117 F.3d

1 (1st Cir. 1997), that there must be reasonable suspicion to

conduct strip searches of arrestees. Id. at 7.

In Swain, we examined our prior cases dealing with prison

visitors and border searches, as well as relevant cases from other

circuits. We concluded that "it is clear that at least the

-28-

reasonable suspicion standard governs strip and visual body cavity

searches in the arrestee context as well." Id. This ruling was

consistent with cases from numerous other circuits.6

Our brethren mischaracterize the holding in Swain. They

paraphrase Swain as holding that reasonable suspicion is

"ordinarily" required for arrestees and that strip searches "ought

not lightly to be indulged." We respectfully disagree with our

colleagues' description of Swain's holding. Swain's holding is

clear and unqualified. Swain does not say that reasonable

suspicion is only sometimes required. Rather than paraphrase the

words of Swain, we shall quote its holding directly: "A strip and

visual body cavity search of an arrestee must be justified, at the

least, by a reasonable suspicion." 117 F.3d at 5. It is hard to

imagine a more clear statement of the law.

Our colleagues fail to mention that Swain contained

another holding that is especially relevant to this case. When

analyzing the issue of qualified immunity we stated:

6

See Justice v. City of Peachtree City, 961 F.2d 188, 193

(11th Cir. 1992); Masters v. Crouch, 872 F.2d 1248, 1255 (6th Cir.

1989), cert. denied, 493 U.S. 977 (1989); Weber v. Dell, 804 F.2d

796, 802 (2d Cir. 1986), cert. denied, 483 U.S. 1020 (1987); Jones

v. Edwards, 770 F.2d 739, 742 (8th Cir. 1985); Stewart v. Lubbock

County, Tex., 767 F.2d 153, 156-57 (5th Cir.), cert. denied, 475

U.S. 1053 (1985); Giles v. Ackerman, 746 F.2d 614, 618 (9th Cir.

1984), cert. denied, 471 U.S. 1053 (1985); Hill v. Bogans, 735 F.2d

391, 394 (10th Cir. 1984); Mary Beth G. v. City of Chicago, 723

F.2d 1263, 1273 (7th Cir. 1983); Logan v. Shealy, 660 F.2d 1007,

1013 (4th Cir. 1981), cert. denied, 455 U.S. 942 (1982).

-29-

Furthermore, while some courts have suggested

that a higher standard may be necessary to

justify a strip search and visual body cavity

inspection, it was clearly established at the

time of the search [May 18, 1993] that the

Fourth Amendment requires at least a

reasonable suspicion to conduct these types of

searches.

Id. (emphasis in original). This ruling too was in accord with

decisions by other circuits.7

In short, Swain states unequivocally that reasonable

suspicion is required to strip search arrestees and that this

requirement was clearly established as early as 1993, well before

the dates in question here. These rulings were in conformity with

circuits across the country.

Despite this overwhelming precedent, our colleagues claim

that Swain's holdings could not have given the defendants fair

7

See Chapman v. Nichols, 989 F.2d 393, 398 (10th Cir. 1993)

(holding that it was clearly established that a strip search policy

applied to minor offense detainees without particularized

reasonable suspicion was unlawful); Masters, 872 F.2d at 1255 ("The

decisions of all the federal courts of appeals that have considered

the issue reached the same conclusion: a strip search of a person

arrested for a traffic violation or other minor offense not

normally associated with violence and concerning whom there is no

individualized reasonable suspicion that the arrestee is carrying

or concealing a weapon or other contraband, is unreasonable. We

believe the right of such a person to be free of such a search was

'clearly established' on October 21, 1986."); Weber, 804 F.2d at

803 (denying qualified immunity for defendants who performed

suspicionless strip searches on arrestees because "at least eleven

circuit court decisions . . . hold similar policies

unconstitutional"); Jones, 770 F.2d at 742 n.4 (denying defendants

qualified immunity because the Fourth Amendment's protection

against suspicionless strip searches of arrestees was well

established).

-30-

warning that the reasonable suspicion standard would apply to them.

They say that Swain involved an arrestee who was held alone in a

single cell, whereas the plaintiffs in this case were commingled

with other prisoners. Admittedly, our precedent does not speak to

commingling specifically. But that fact does not mean that the

defendants are entitled to qualified immunity. See Hatch, 274 F.3d

at 23 (although "[o]ur own precedents are . . . inconclusive," the

law was clearly established by "an emerging body of decisional law

outside our own circuit"). Commingling may not always pose a

security risk. It is not commingling, per se, that presents a

security problem; it is commingling that involves a risk of illegal

traffic among the commingled inmates.

As early as Blackburn, we rejected the argument that "the

security needs of a prison can, standing alone, properly justify

the 'complete withdrawal' of Fourth Amendment rights from all who

enter [a prison]." 771 F.2d at 563 (emphasis in original); see

also Logan, 660 F.2d at 1013 ("An indiscriminate strip search

policy routinely applied to detainees . . . cannot be

constitutionally justified simply on the basis of administrative

ease in attending to security considerations.").

Cases from other circuits are more explicit in rejecting

the commingling argument advanced by the defendants.8 Most notable

8

See Walsh v. Franco, 849 F.2d 68, 69 (2d Cir. 1988) (ruling

that a blanket strip search of all misdemeanor arrestees was not

permissible simply because those arrestees were commingled among

-31-

is the Sixth Circuit's holding in Masters v. Crouch, 872 F.2d 1248

(6th Cir. 1989):

[T]he fact of intermingling [with other prison

inmates] alone has never been found to justify

such a search without consideration of the

nature of the offense and the question of

whether there is any reasonable basis for

concern that the particular detainee will

attempt to introduce weapons or other

contraband into the institution.

Id. at 1254. In short, the cases from other circuits, when read in

conjunction with our own precedent, would not permit a reasonable

prison official to conclude that minor offense arrestees could be

strip searched without reasonable suspicion simply because the

prison officials decide to mix the arrestees with other prisoners.

Our colleagues say that Swain could not have provided

fair warning for another reason. According to our brethren, Swain,

as well as the cases from other circuits upon which it relied,

involved local jails rather than prisons, like the ACI. The

distinction between jails and maximum security prisons is a crucial

leg upon which our colleagues' opinion rests. It is here that

arraigned inmates); Giles v. Ackerman, 746 F.2d 614, 617-18 (9th

Cir. 1984) ("Defendants' heavy reliance on the intermingling of its

temporary detainees with the general [jail] population is misplaced

because such intermingling is both limited and

avoidable.")(citation and internal quotation marks omitted)

(alteration in original); Chapman, 989 F.2d at 396 (rejecting the

defendant's argument "that the invasion posed by his policy is

justified by the need for jail security because women detainees

must be incarcerated in one cell with the general jail

population"); Hill, 735 F.2d at 394 (rejecting intermingling

argument because "intermingling is only one factor to consider in

judging the constitutionality of a strip search").

-32-

their incomplete archeological excavation which we mentioned

earlier becomes important. The cases that our colleagues ignored

involved the early development of our reasonable suspicion standard

as it applied to strip searches of prison visitors. At issue in

those cases were both jails and prisons. See Wood, 89 F.3d at 925

(prison); Blackburn, 771 F.2d at 559 (county jail).

Even more relevant is the fact that one of those cases

dealt with the ACI. See Cochrane, 949 F.2d at 12. In Cochrane, we

vacated a judgment granting directed verdicts for ACI officials

defending the strip search of an inmate's daughter. We said that:

[A]bsent any evidence that appellant ever

violated a prison visitation rule, or even

supplied Cochrane with drugs, a reasonable

juror could have concluded that Cochrane's

contraband drugs were supplied by prison

officials or other inmates. Thus, the jury

could have found that the strip search of

appellant was unreasonable because it was

based on no "individualized suspicion."

Id. at 13 (emphasis in original). Our colleagues maintain that the

defendants were justified in believing that no reasonable suspicion

was required in this case in part because the defendants "must

maintain institutional security in the most difficult of settings."

Yet the same setting and security considerations were not enough to

defeat the requirement for individualized suspicion in Cochrane.

We do not understand on what legal basis our colleagues can now say

that those same security needs made the defendants'

unconstitutional strip searches reasonable. Certainly the

-33-

defendants had fair warning that the reasonable suspicion standard

would be applied to them because, in fact, they had already been

held to that standard in the past.

Of course, one difference between Cochrane and the

present case is that Cochrane involved prison visitors, not minor

offense arrestees. But this fact does not help the defendants; if

anything, it further highlights why the defendants had fair warning

that their strip search policies were unreasonable.

The Supreme Court has explained that prison visitors

"invite a host of security problems" because they can pass weapons

and contraband "to an inmate unnoticed by even the most vigilant

observers." Block v. Rutherford, 468 U.S. 576, 586 (1984). It is

well recognized, however, that individuals arrested for non-

violent, non-drug related minor offenses do not present the same

security risk as prison visitors. See Roberts II, 239 F.3d at 111;

Giles, 746 F.2d at 617. This is because arrests, unlike visits,

are not planned events. They are random and do not afford an

arrestee the opportunity to hatch a scheme to smuggle contraband

into a prison. As the Second Circuit has explained:

It is far less obvious that misdemeanor

arrestees frequently or even occasionally hide

contraband in their bodily orifices. Unlike

persons already in jail who receive contact

visits, arrestees do not ordinarily have

notice that they are about to be arrested and

thus an opportunity to hide something. For the

exceptions--for example, a person who is

allowed to visit the bathroom unescorted

-34-

before an arrest--reasonable suspicion may

well exist.

Shain v. Ellison, 273 F.3d 56, 64 (2d Cir. 2001). Our brethren

overlook the important fact that the Court in Bell authorized strip

searches of detainees only after the detainees had come into

contact with prison visitors. See 441 U.S. at 558. The present

case involves people brought to the ACI because they were arrested,

sometimes mistakenly as the record reveals, for non-violent, non-

drug related minor offenses. They did not come into contact with

prison visitors.

Our colleagues concoct a hypothetical situation in which

an inmate arranges for an outsider to bring weapons or contraband

inside the prison by staging an incident that would lead to the

outsider being arrested for a minor offense. With due respect,

this is chimerical. The only case our colleagues have exhumed to

support their scenario is Watt v. City of Richardson Police Dep't,

849 F.2d 195 (5th Cir. 1988). They claim Watt stands for the idea

that "a suspect jailed even temporarily on a minor offense could

have the opportunity, if not searched, to smuggle weapons or

contraband." Id. at 198. The very next sentence from Watt,

however, shows that the quote upon which they rely is applicable

only to those arrestees charged with weapons, shoplifting or drug

offenses or those with a history of such offenses. See id.

("Limiting the searches generally to those offenders charged with

or having a criminal history of narcotics, shoplifting or weapons

-35-

charges is not an irrational attempt to foster jail security . . .

."). Watt does not support our colleagues' theory that non-

violent, non-drug related minor offense arrestees will conduct

coordinated smuggling schemes to infiltrate prisons with contraband

and weapons.

Perhaps more importantly, there is no evidence in the

record to support our colleagues' hypothetical. In fact, the

record undermines it. At no time has the ACI ever found weapons or

contraband in an arrestee's rectum or genital area. Roberts II,

239 F.3d at 112 n.6. Only on one occasion has the ACI found

contraband in the body cavity of a minor offense arrestee. Id. In

that instance, the arrestee was hiding a bag of drugs in his mouth.

Id. All the other contraband that the ACI has found on minor

offense arrestees has been discovered in their clothing. It is

obvious that the intrusive and degrading searches that the ACI

chose to institute were not required to find this contraband. Id.

No historical analysis of our strip search cases would be

complete without a close examination of our holding in Arruda v.

Fair, 710 F.2d 886 (1st Cir. 1983). Our colleagues say that Arruda

is a case with "considerable force" because it "reasonably can be

read as saying that the risk that any prisoner in a maximum

security facility might receive weapons or contraband from

visitors, renegade guards, or others is enough to justify a blanket

strip search policy." (emphasis added). Characterized in this

-36-

manner, Arruda forms another critical leg upon which our

colleagues' opinion stands. Their expansive reading of Arruda is

unwarranted. Arruda is a totally different case than what we face

here. It is so different that no reasonable official could have

read Arruda to authorize suspicionless strip searches of minor

offense arrestees. This is true for three reasons.

First, Arruda was decided twenty years ago and, as we

have already discussed, our cases since Arruda have made clear that

reasonable suspicion is required to strip search arrestees. See

Swain, 117 F.3d at 7.

Second, Arruda was a case involving "particularly

dangerous prisoners." 710 F.2d at 887. These prisoners were

convicted felons assigned to a special cell block, which we

described as a "'prison within a prison,' designed to hold the most

dangerous inmates." Id. The plaintiff himself was assigned to this

special cell block for assaulting another prisoner. Id. In

addition, the plaintiff testified that, while a prisoner, he

possessed drugs and a weapon. Id. at 888. It is beyond

comprehension how the defendants can equate extraordinarily violent

convicted felons with people who have been arrested for minor

offenses.

Third, and most pertinently, what we identified in Arruda

as the "closest question," id., most analogous to the instant

case, was whether prisoners who were convicted felons needed to be

-37-

searched en route from cell to library or infirmary, even though

accompanied by a guard. Like the misdemeanor arrestees here, there

would seem to be no basis for any suspicion that such inmates would

possess contraband. The record in Arruda, however, revealed a

number of instances when guards were found to be involved in

smuggling drugs to prisoners. This caused us to hold, "[G]iven the

problem of prison employee involvement with contraband, the

district court's conclusion is not unreasonable." Id.; but see id.

at 891, 890 (Maletz, J., dissenting in part) ("When one of the

primary justifications for strip searches in these circumstances

rests on the institution's inability to control its own staff the

scales tip decidedly in favor of the inmate. . . . I am constrained

to conclude that routine visual strip searches before and after

visits to the prison library and prison hospital are unreasonable,

absent some level of cause.").

Twenty years have passed since we decided Arruda and the

case law barring suspicionless strip searches of minor offense

arrestees has proliferated. And Swain, with its clear recognition

that a strip search requires reasonable suspicion, has been on the

books of this circuit since 1997. The record in this case does not

reveal a prison employee drug smuggling problem. There remains

only the speculative risk that a non-violent, non-drug related

misdemeanant, randomly arrested, might fortuitously be a bearer of

-38-

contraband. That is not enough, in our view, to permit the

defendants to escape liability for their unconstitutional acts.

The only similarity between Arruda and the present case

is that the correctional facilities in both cases are maximum

security prisons. This is the vital similarity upon which the

defendants' argument relies. Despite the key differences I have

described above, our colleagues are persuaded by this single

similarity. Our colleagues say that prison officials cannot be

expected to anticipate precisely the legal conclusions that we

judges will make after full briefing and argument. We agree with

that statement as a general matter. But that is not to say that

prison officials have no responsibility to analyze the law. All of

the individual defendants here are high level prison officials.9

They are not entry-level prison guards who have no access to legal

advice and have superiors who have failed to supply any training on

constitutional law whatsoever. The defendants in this case are the

superiors and should be held to the standard of a "reasonably

competent public official [who] should know the law governing his

conduct." Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982). The

qualified immunity analysis is based on an objective standard. See

9

The individual defendants include the former and current

director of the Rhode Island Department of Corrections, the former

and current warden of the Intake Services Center at the ACI, the

warden of the women's facility at the ACI, and the chief of

recruitment and training at the Rhode Island Department of

Corrections.

-39-

Suboh, 298 F.3d at 95. This necessarily implies some informed and

professional analysis. Merely to take refuge in the concept that

the ACI is a maximum security prison, without identifying any

realistic distinction between the situation in Arruda and the

situation that the defendants were confronted with at the ACI,

falls far short of any credible analysis of the state of the law

both within and outside this circuit.

We close our review of the relevant legal history

regarding strip searches with an important observation. Our

colleagues do not cite to a single case which permits suspicionless

strip searches of non-violent, non-drug related minor offense

arrestees. It is quite amazing that they can claim the law is

ambiguous but fail to provide a single case that directly supports

their position. The only case our colleagues offer is Covino v.

Patrissi, 967 F.2d 73 (2d Cir. 1992). But that case, as our

colleagues readily admit, is not on point. The plaintiff in Covino

was not arrested for non-violent, non-drug related minor offenses

like the plaintiffs in this case. He was arrested for kidnaping a

child under the age of sixteen and was ultimately sentenced to 20

to 35 years in prison. Id. at 75 n.1. In addition, the prison

superintendent in Covino testified that "occasionally contraband

and drugs were found secreted in an inmate's rectum." Id. at 79.

As we have already explained, the evidence in this case is to the

contrary.

-40-

Without direct legal support, our brethren are forced to

argue that generalized statements from certain cases made the law

so ambiguous that the defendants could not have had fair warning.

Our colleagues argue, for example, that there exists "a separate

line of cases [that] has emphasized the need to defer to the

judgment of correctional officials in addressing institutional

security needs." If these types of sweeping statements are enough

to shield prison officials from liability for their illegal

actions, then there is the significant risk that qualified immunity

will always attach.

It is this concern that brings us to our final point. Up

to now, we have argued that our colleagues analysis of our legal

history is incomplete and untenable. This is not the only flaw in

their opinion. We are deeply troubled by the weight our colleagues

give to our statement in Roberts II that institutional security

concerns in this case "fall somewhere between" those exhibited in

Swain and Arruda. 239 F.3d at 111. Our colleagues describe this

statement as an acknowledgment that the ACI's strip search policy

fell into a "gray area" of the law. We respectfully disagree. The

Roberts II statement merely recognizes the obvious: that the facts

of the present case fall somewhere between those of Swain and

Arruda. Such an observation is not surprising. Indeed, most cases

will fall somewhere between Swain and Arruda because those two

cases represent the opposite ends of the spectrum. Swain was a

-41-

case involving an arrestee who was placed in a cell in a local

police station. In contrast, Arruda involved extraordinarily

violent convicted felons who were confined to a special security

section of a maximum security prison. What our colleagues have

done is to construe a dictum probably intended to soften criticism

of the prison officials into a sweeping carte blanche, protecting

officials for a wide swath of conduct elsewhere long since

forbidden.

Placing so much weight on the Roberts II statement runs

the risk of creating an impenetrable defense for government

officials. Our colleagues' reliance on the Roberts II statement

implies that qualified immunity will only be denied in this circuit

when the facts of the case at bar are the same as those in

previously decided cases. This risk is compounded by our

colleagues' statement that Swain could not give the defendants fair

warning because it is not "a very exact match" to the facts of this

case.

Such reasoning flouts the Supreme Court's holding in Hope

v. Pelzer, 536 U.S. 730 (2002). In Hope, the Court admonished the

Eleventh Circuit for finding the law clearly established only when

the facts of previous cases were "fundamentally similar" to the

present case. Id. at 739. The Court said that such an approach

was a "rigid gloss on the qualified immunity standard . . . [that]

is not consistent with our cases." Id. The Court explained that

-42-

"officials can still be on notice that their conduct violates

established law even in novel factual circumstances," and that

"[a]lthough earlier cases involving 'fundamentally similar' facts

can provide especially strong support for a conclusion that the law

is clearly established, they are not necessary to such a finding.

The same is true of cases with 'materially similar' facts." Id. at

741.

Our colleagues respond by saying that "[i]t is the

absence of clear guidance, not the absence of a perfect

precedential match, that makes qualified immunity appropriate

here." In short, they reject Swain as giving "clear guidance"

because of factual differences, while claiming allegiance to Hope's

ruling that "fundamentally similar" facts are not necessary. This

seems to us an attempt to have it both ways.

Our colleagues may well be correct that the strip search

policy at issue in this case, and others like it, are "dead and

buried." But their qualified immunity analysis will live on; it

will undoubtedly be used in future cases involving other important

constitutional rights. The qualified immunity defense is "an

attempt to balance competing values: not only the importance of a

damages remedy to protect the rights of citizens . . . but also

'the need to protect officials who are required to exercise their

discretion and the related public interest in encouraging the

vigorous exercise of official authority.'" Harlow, 457 U.S. at 807

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(quoting Butz v. Economou, 438 U.S. 478, 504-06 (1978)). By

finding ambiguity in our cases where there is none, and by implying

that previous cases must be "a very exact match" before they can

give fair warning for purposes of the qualified immunity analysis,

our brethren have tipped the balance away from the Constitution.

They have gone far toward granting absolute immunity under the

cloak of qualified immunity. We believe that this court is

obliged not only to give due deference to the judgment of

government officials but to insist that the constitutional rights

of individuals be vigilantly protected.

If the bar to a remedy is set too high, then

constitutional rights are in jeopardy. Government officials will

have less incentive to change their illegal policies on their own

accord because the deterrent effect of damages is lacking.

Aggrieved individuals will have less incentive to challenge those

policies because monetary compensation for their harms is

unavailable. In the end, unconstitutional government action is

more likely to go unchanged. That is our ultimate concern.

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