Paul Bame v. Todd Dillard

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 14, 2010 Decided March 25, 2011

Reissued March 29, 2011

No. 09-5330

PAUL BAME, ET AL.,

APPELLEES

v.

TODD W. DILLARD, IN HIS OFFICIAL CAPACITY (FORMER

UNITED STATES MARSHAL FOR THE DISTRICT OF COLUMBIA),

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:05-cv-01833-RMC)

W. Mark Nebeker, Assistant U.S. Attorney, argued the

cause for appellant. With him on the briefs were Ronald C.

Machen Jr., U.S. Attorney, and R. Craig Lawrence, Assistant

U.S. Attorney.

Lynn E. Cunningham argued the cause for appellees.

With him on the brief was Zachary Wolfe.

Before: GINSBURG and ROGERS, Circuit Judges, and

WILLIAMS, Senior Circuit Judge.

2

Opinion for the Court filed by Circuit Judge GINSBURG.

Dissenting opinion filed by Circuit Judge ROGERS.

GINSBURG, Circuit Judge: The named plaintiffs filed this

class action suit for damages against Todd Walther Dillard, a

former United States Marshal for the Superior Court of the

District of Columbia, claiming that, after being arrested

during a demonstration in September 2002, they were

unconstitutionally strip searched by Deputy U.S. Marshals

under Dillard’s direction. According to the plaintiffs, caselaw

had by then clearly established that the Fourth Amendment to

the Constitution of the United States prohibited strip

searching a person arrested for a non-violent, non-drug-

related misdemeanor absent a particularized reason to suspect

the arrestee was concealing contraband or weapons about his

person. Dillard moved for summary judgment based upon

qualified immunity, and when the district court denied that

motion, brought this interlocutory appeal. We conclude it

was not clearly established in 2002 that the strip search of a

person being introduced into a detention facility violated the

Fourth Amendment. Therefore, Dillard is entitled to qualified

immunity and to summary judgment.

I. Background

In 1999 the United States Marshals Service (USMS)

adopted Policy Directive No. 99-25 to prescribe, among other

things, the procedure for strip searching prisoners and “other

persons who are under arrest.” The Policy Directive

authorized a “strip search,” defined as “[a] complete search of

a prisoner’s attire and a visual inspection of the prisoner’s

naked body, including body cavities,” when “there is

reasonable suspicion that the prisoner may be (a) carrying

contraband and/or weapons, or (b) considered to be a security,

3

escape, and/or suicide risk.” “Reasonable suspicion” was to

be determined according to the following criteria:

a. Serious nature of the offense(s) charged, i.e., whether

crime of violence or drugs;

b. Prisoner’s appearance or demeanor;

c. Circumstances surrounding the prisoner’s arrest or

detention; i.e., whether the prisoner has been

convicted or is a pretrial detainee;

d. Prisoner’s criminal history;

e. Type and security level of institution in which the

prisoner is detained; or

f. History of discovery of contraband and/or weapons,

either on the prisoner individually or in the institution

in which prisoners are detained.

Dillard was the United States Marshal for the Superior

Court of the District of Columbia when the plaintiffs were

arrested and allegedly strip searched. Under his supervision,

all male arrestees held at the Superior Court were strip

searched upon arrival, before being put into the cellblock; ∗

more specifically, each male arrestee was required to drop his

trousers and underwear, bend over or squat, and expose his

buttocks and genitals to a male Deputy Marshal. This

practice had been instituted in light of an extensive history of

prisoners’ concealing contraband on their bodies while in the

∗

Dillard denies this procedure was “followed in practice,” although

he concedes for purposes of the appeal that the strip searches

occurred in this case. In settlement of Morgan v. Barry, Civ. A.

No. 81-1419 (D.D.C. 1981), the District of Columbia had signed a

Memorandum of Agreement not to strip search female arrestees

prior to arraignment without individualized, reasonable suspicion or

unless the arrestee was to come into contact with the general inmate

population of the detention facility. The practice of strip searching

all male arrestees is no longer in place at the Superior Court.

4

cellblock. In the four years prior to the plaintiffs’ arrests, the

USMS had documented at least 30 incidents in which Deputy

Marshals discovered contraband — including drugs, knives,

razor blades, and box cutters — on prisoners brought to the

Superior Court cellblock by law enforcement.

Metropolitan Police officers arrested the plaintiffs on the

morning of September 27, 2002 while they were protesting a

meeting of the International Monetary Fund and the World

Bank in downtown Washington, D.C. The officers initially

transported the protestors to various police holding facilities;

later that day, the officers bused the named plaintiffs and

others to the Superior Court and transferred them to the

custody of the USMS. Because the plaintiffs had refused to

identify themselves to law enforcement authorities, they were

recorded as “John Does” on the “lockup list” provided to the

Deputy Marshals.

At the Superior Court, each plaintiff first passed through

a metal detector and was then subjected to a pat-down search.

The Deputy Marshals then strip searched the arrestees in a

receiving cell in batches of approximately ten men; no

plaintiff was touched and no female was present during the

search. No contraband was recovered from any plaintiff.

After being strip searched, groups of 20 to 30 men were

placed together in holding cells to await disposition of the

charges against them. Each had been charged with either

“incommoding” traffic or “failure to obey” a law enforcement

officer, both of which are misdemeanors. On September 28

they were released, some having been fined and others not

sentenced at all.

The named plaintiffs filed this class action seeking

damages from Dillard pursuant to Bivens v. Six Unknown

5

Named Agents of Federal Bureau of Narcotics, 403 U.S. 388

(1971). They claimed the strip searches, because performed

without individualized suspicion, violated their right under the

Fourth Amendment to be free from unreasonable searches.

The district court certified a class of plaintiffs consisting

of:

All men who were: (1) arrested on September 27, 2002

by the D.C. Police officials during a series of mass

protests in downtown Washington, D.C.; (2) remanded

by D.C. Police, following their arrests, into the custody

of the U.S. Marshal[] for the District of Columbia

prior to being released; and (3) subjected by deputy

U.S. Marshals to a strip, visual, body cavity search

without any particularized or individualized reasonable

suspicion that he was concealing drugs, weapons or

other contraband. ...

The plaintiffs moved for summary judgment on the issue of

liability and Dillard moved for judgment on the pleadings or,

in the alternative, for summary judgment, arguing he was

entitled to qualified immunity under Saucier v. Katz, 533 U.S.

194, 200–02 (2001).

The district court denied Dillard’s motion. It concluded

the strip searches violated the Fourth Amendment and held

Dillard was not entitled to qualified immunity “because the

law was clearly established that blanket strip searches of non-

violent, non-felony arrestees were unlawful” in 2002. Bame

v. Dillard, 647 F. Supp. 2d 43, 52, 55 (2009). The court also

denied the plaintiffs’ motion for summary judgment because

Dillard had denied the strip searches occurred, thus creating a

genuine issue of material fact. For the purpose of this appeal,

6

however, Dillard concedes the strip searches took place as

alleged.

II. Analysis

The only issue on appeal is whether Dillard is entitled to

qualified immunity, which issue we resolve de novo. Elder v.

Holloway, 510 U.S. 510, 516 (1994). Qualified immunity is

“a defense that shields officials from suit if their conduct

‘d[id] not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.’”

Ortiz v. Jordan, 131 S. Ct. 884, 888 (2011) (quoting Harlow

v. Fitzgerald, 457 U.S. 800, 818 (1982)). The Supreme Court

in Saucier established a two-step test for determining whether

a government official is entitled to qualified immunity. First,

the court asks whether “the facts alleged show the officer's

conduct violated a constitutional right.” 533 U.S. at 201. If

so, then the court must determine “whether the right was

clearly established” at the time of the alleged violation. Id.

The Supreme Court has since clarified that “the sequence set

forth [in Saucier],” although “often appropriate,” is not

mandatory. Pearson v. Callahan, 129 S. Ct. 808, 818 (2009).

Courts may “exercise their sound discretion” in deciding

which question to address first “in light of the circumstances

in the particular case at hand.” Id.

In this case the principle of constitutional avoidance

counsels that we turn directly to the second question. As the

Court recognized in Pearson itself, “There are cases in which

it is plain that a constitutional right is not clearly established

but far from obvious whether in fact there is such a right.” Id.

This is such a case.

Therefore the first and, as it happens, only question we

address is whether it was clearly established in September

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2002 that strip searching an arrestee before placing him in a

detention facility without individualized, reasonable suspicion

was unconstitutional. To answer this question, “we look to

cases from the Supreme Court and this court, as well as to

cases from other courts exhibiting a consensus view,”

Johnson v. District of Columbia, 528 F.3d 969, 976 (D.C. Cir.

2008) — if there is one. The facts of such cases need not be

“‘materially similar’ ... but have only to show that ‘the state of

the law [at the time of the incident] gave [the officer] fair

warning that [his alleged misconduct] ... was

unconstitutional.’” Id. (quoting Hope v. Pelzer, 536 U.S. 730,

741 (2002)).

Central to our inquiry in this case, as reflected in the

briefs of both parties, is the decision in Bell v. Wolfish, 441

U.S. 520 (1979). There pretrial detainees and others ∗ housed

in the New York Metropolitan Correctional Center (MCC), a

“short-term custodial facility,” challenged the

constitutionality of strip searching each inmate who had been

visited by an outsider, without regard to individualized

suspicion. Id. at 523, 558–60. The Court noted that, under

the Fourth Amendment generally, the reasonableness of a

search is to be determined by balancing “the scope of the

particular intrusion, the manner in which it is conducted, the

justification for initiating it, and the place in which it is

conducted.” Id. at 559.

Applying this general “test of reasonableness,” id., the

Court in Bell upheld the policy of the MCC because the

“legitimate security interests of the institution” in preventing

∗

The MCC also housed some convicted inmates, “witnesses in

protective custody, and persons incarcerated for contempt.” Bell,

441 U.S. at 524. All were subject to the same policy of strip

searching.

8

the introduction of contraband into the facility outweighed the

inmates’ interest in privacy: “A detention facility is a unique

place fraught with serious security dangers,” where the

“[s]muggling of money, drugs, weapons, and other

contraband is all too common an occurrence.” Id. at 559–60.

Consequently, corrections officials are to be “accorded wide-

ranging deference” in adopting policies needed “to maintain

institutional security.” Id. at 547–48. In so stating, the Court

expressly rejected the plaintiff inmates’ argument that less

deference is due to an official holding detainees — as was

Dillard in this case — as opposed to convicts. Id. at 547 n.29.

Dillard argues Bell establishes the strip searches

conducted at the Superior Court were not clearly

unconstitutional. For their part, the plaintiffs contend there

was by 2002 — when the searches here occurred — a

consensus among the circuits to have considered the issue that

Bell required individualized, reasonable suspicion to support

the strip search of “persons arrested for non-violent non-drug

related misdemeanor offenses.” ∗

Dillard responds with the decisions in Powell v. Barrett,

541 F.3d 1298 (11th Cir. 2008) (en banc), and Bull v. City and

∗

The plaintiffs cite Wilson v. Jones, 251 F.3d 1340 (11th Cir.

2001), which was overruled by Powell v. Barrett, 541 F.3d 1298

(11th Cir. 2008) (en banc); Roberts v. Rhode Island, 239 F.3d 107

(1st Cir. 2001); Masters v. Crouch, 872 F.2d 1248 (6th Cir. 1989);

Weber v. Dell, 804 F.2d 796 (2d Cir. 1986); Jones v. Edwards, 770

F.2d 739 (8th Cir. 1985); Stewart v. Lubbock County, 767 F.2d 153

(5th Cir. 1985); Giles v. Ackerman, 746 F.2d 614 (9th Cir. 1984),

which was overruled by Bull v. City and County of San Francisco,

595 F.3d 964 (9th Cir. 2010) (en banc); Hill v. Bogans, 735 F.2d

391 (10th Cir. 1984); Mary Beth G. v. City of Chicago, 723 F.2d

1263 (7th Cir. 1983); and Logan v. Shealy, 660 F.2d 1007 (4th Cir.

1981).

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County of San Francisco, 595 F.3d 964 (9th Cir. 2010) (en

banc), which he says created a conflict among the circuits as

to the meaning of Bell. In Powell, the Eleventh Circuit

upheld the “practice of strip searching all arrestees as part of

the process of booking them into the general population of a

detention facility, even without reasonable suspicion to

believe that they may be concealing contraband.” 541 F.3d at

1300. In Bull, the Ninth Circuit similarly concluded the

policy of the San Francisco Sheriff’s Department of strip

searching all arrestees upon introduction into the general jail

population did not violate the Fourth Amendment, and

therefore reversed the district court’s denial of the sheriff’s

motion for summary judgment based upon qualified

immunity. 595 F.3d at 966.

The plaintiffs argue we should disregard Powell and Bull

because they were decided after the strip searches at issue

here and were therefore unknown to Dillard at the relevant

time. Alternatively, they would have us distinguish these

cases because they addressed the rights of persons being

booked into a general jail population for “housing them

overnight or longer.” The plaintiffs also point to other cases

they say gave Dillard “fair warning” that strip searching the

plaintiffs was unconstitutional. These include a March 2002

decision of the District Court observing that “[m]ost federal

courts of appeals” had agreed “that strip searches of

individuals arrested for minor offenses violate the Fourth

Amendment unless the individual is reasonably suspected of

concealing weapons, drugs, or other contraband,” Helton v.

United States, 191 F. Supp. 2d 179, 184 (D.D.C. 2002), an

unpublished Ninth Circuit decision, ACT UP!/Portland v.

Bagley, No. 93-35592, 1995 WL 375822, at ∗5 (June 22,

1995), denying qualified immunity to the Deputy Marshals

who had strip searched demonstrators who had been arrested,

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and the Memorandum of Agreement in Morgan v. Barry, Civ.

A. No. 81-1419, discussed above at 3 n.∗.

We conclude the law in 2002 did not clearly establish

that strip searching all male arrestees prior to placement in

holding cells at the Superior Court violated the Fourth

Amendment. The governing precedent was then, as it is now,

Bell v. Wolfish, and nothing in Bell requires individualized,

reasonable suspicion before strip searching a person entering

a detention facility. To the contrary, as the Eleventh Circuit

would later point out, “The Bell decision means that the

Fourth Amendment does not require reasonable suspicion for

this type of strip search in detention facilities.” Powell, 541

F.3d at 1308.

The dissent places great weight upon a passage in Wilson

v. Layne in which the Supreme Court suggested the plaintiffs

there could have prevailed by identifying “a consensus of

[lower court] cases of persuasive authority such that a

reasonable officer could not have believed that his actions

were lawful.” 526 U.S. 603, 617 (1999). We are aware of no

Supreme Court case, however, that suggests a reasonable

officer could not have believed his actions were lawful

despite a consensus among the courts of appeals when a

precedent of the Supreme Court supports the lawfulness of his

conduct.

A different reading of Bell by the several circuits to have

considered the issue before 2002 could not “clearly establish”

the unconstitutionality of strip searches in this context. That

Powell and Bull came down after 2002 is of no moment; those

opinions simply accord with our own understanding that Bell

did not establish the unconstitutionality of a strip search under

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conditions like those present here. ∗ 1 WILLIAM BLACKSTONE,

COMMENTARIES ∗70–71 (If a “judge may mistake the law,”

then “subsequent judges do not pretend to make a new law,

but to vindicate the old one from misrepresentation”). Indeed,

the Eleventh Circuit expressly considered and rejected the

pre-2002 decisions of the circuits requiring reasonable,

individualized suspicion before conducting a strip search at a

detention facility, Powell, 541 F.3d at 1306–07, and the Ninth

Circuit likewise rejected those decisions requiring reasonable,

individualized suspicion before strip searching an arrestee

entering a general jail population, Bull, 595 F.3d at 980–81.

In other words, those courts did not believe the prior decisions

upon which the plaintiffs rely had established — much less

clearly established — that strip searches of the sort here at

issue were unconstitutional. Why, then, should Marshal

Dillard have believed that?

Clearly, it was reasonable for Dillard, like the courts of

appeal that reached the issue after 2002, to believe strip

searching all male arrestees was consistent with the law as set

forth in Bell and as implemented by the USMS in Policy

Directive No. 99-25. The correctional center in Bell, like the

Superior Court cellblock, was used primarily to house not

∗

Since oral argument in this case, the Third Circuit has joined the

Eleventh and the Ninth Circuits in upholding the constitutionality

of strip searching all arrestees upon their introduction into a general

jail population. Florence v. Bd. of Chosen Freeholders, 621 F.3d

296 (3d Cir. 2010); but see Jimenez v. Wood Cnty., 621 F.3d 372,

375–76 (5th Cir. 2010) (following circuit precedent in holding

reasonable suspicion is required to strip search an individual

arrested for a minor offense); Stearns v. Clarkson, 615 F.3d 1278,

1282 (10th Cir. 2010) (circuit precedent clearly established “a

detainee who is not placed in the general prison population cannot

be strip searched” without reasonable suspicion) (internal quotation

marks and citation omitted).

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convicts but persons awaiting their appearance in court. 441

U.S. at 524. The dissent makes much of the distinction

between “pretrial detainees” and “pre-arraigned arrestees” in

its attempt to distinguish this case from Bell. As the court in

Powell observed, however, “The policy that the Court

categorically upheld in Bell applied to all inmates, including

those charged with lesser offenses and even those charged

with no wrongdoing at all who were being held as witnesses

in protective custody.” 541 F.3d at 1307. Thus, the purported

distinction “finds no basis in the Bell decision, in the

reasoning of that decision, or in the real world of detention

facilities.” Id. at 1310. Because many arrestees, including

“[d]emonstrators or protestors engaged in civil disobedience,

... have all the time they need to plan their arrests and conceal

items on their persons,” id. at 1313–14, we have no reason to

believe arrested demonstrators are any less a threat to security

than are pretrial detainees.

Furthermore, the Court’s rationale in Bell applies equally

to any detention facility that is “fraught with serious security

dangers,” id. at 559, as was the cellblock at the Superior

Court, where often hundreds of arrestees were processed in a

single day. Contrary to the plaintiffs’ contention, nothing

whatsoever in Bell suggests its holding is limited to overnight

detention facilities. Cf. Powell, 541 F.3d at 1310 (“The need

for strip searches at all detention facilities ... is not

exaggerated”) (emphasis added). Nor — despite the emphasis

our dissenting colleague places upon “intermingling” with

other arrestees or detainees — did the Court in Bell anywhere

mention, let alone rely upon, such intermingling as a reason

for upholding the strip searches. In any event, arrestees held

at the Superior Court were in fact commingled with other

arrestees in holding cells; no one suggests each arrestee was

put in a separate cell.

13

Moreover, the Court in Bell upheld strip searches even

though “there ha[d] been only one instance where an MCC

inmate was discovered attempting to smuggle contraband into

the institution on his person.” 441 U.S. at 559. As the Court

speculated, the dearth of incidents may be a “testament to the

effectiveness of this search technique as a deterrent.” Id. Be

that as it may, the record here substantiates Dillard’s point

that the Superior Court had a persistent problem with

contraband being smuggled into the cellblock, the very reason

for strip searches contemplated in subsection (f) of Policy

Directive No. 99-25. Furthermore, the strip searches at the

Superior Court were no more intrusive than those upheld as

reasonable in Bell, where a male was required to “lift his

genitals and bend over to spread his buttocks for visual

inspection.” 441 U.S. at 558 n.39.

Contrary to our dissenting colleague’s assertion,

decisions of the courts of appeals reached after the events here

in suit are relevant to the issue of qualified immunity. In

determining whether an official is entitled to qualified

immunity, courts focus upon the state of the law “at the time

[the] action occurred” because “i[f] the law at that time was

not clearly established,” then the official “could not

reasonably be expected to anticipate subsequent legal

developments.” Harlow, 457 U.S. at 818. The point is not, as

the dissent would have it, to deny an official the benefit of

subsequent cases reflecting the uncertain state of the law at

the time of his action. As the Supreme Court in Pearson said

of its earlier decision in Wilson v. Layne, there “a Circuit split

on the relevant issue had developed after the events that gave

rise to suit”; the Court nonetheless “concluded that ‘[i]f

judges thus disagree on a constitutional question, it is unfair

to subject police to money damages for picking the losing side

of the controversy.’” Pearson, 129 S. Ct. at 823 (quoting 526

U.S. at 618). So, too, here would it be unfair to subject

14

Dillard to money damages for having relied upon the

Supreme Court’s decision in Bell.

III. Conclusion

Because there was in 2002 no clearly established

constitutional prohibition of strip searching arrestees without

individualized, reasonable suspicion, we need not consider

whether Dillard had individual suspicion as to each of the

plaintiffs. The order of the district court is reversed and the

case is remanded for that court to enter summary judgment for

the defendant.

So ordered.

ROGERS, Circuit Judge, dissenting: Contrary to the

principles underlying qualified immunity as a limitation on the

occasions when liability for unconstitutional conduct by a

public official will be excused, the majority holds the conduct

is to be evaluated by recently articulated law and not, as the

Supreme Court has instructed, by the clearly established law

reflected in the consensus of persuasive authority at the time of

the conduct. In so doing, this is the first time a circuit court of

appeals has suggested that the protections of the Fourth

Amendment to the Constitution against unreasonable searches

do not extend to an individual arrested for a non-violent minor

offense who is awaiting arraignment apart from the general

population of detainees, and is subjected to a strip search in the

absence of reasonable suspicion he is hiding contraband or

weapons. This runs contrary to the consensus of ten circuit

courts of appeals at the time of the challenged strip searches.

To reach this result the majority tramples over Supreme Court

precedent and gives short shrift to the protections of the Fourth

Amendment. Accordingly, I respectfully dissent.

I.

The former United States Marshal for the District of

Columbia appeals on the ground that he is entitled to qualified

immunity with respect to the alleged violations of the Fourth

Amendment by peaceful protesters who in 2002 were subjected

to pre-arraignment strip searches at the D.C. Superior Court cell

block.1 The plaintiffs came to the Nation’s Capital to protest

the policies of the International Monetary Fund and the World

Bank on the occasion of the institutions’ annual meetings on

September 27, 2002. They were arrested for either of two non-

violent misdemeanors, “incommoding,” D.C. Code § 22-1307,

1

See Bivens v. Six Unknown Named Agents of Fed. Bureau

of Narcotics, 403 U.S. 388 (1971).

2

or failure to obey a police officer, id., § 22-1121. They

remained together while in police custody throughout the day,

and they were allowed to keep their personal property, such as

knapsacks. Upon being turned over to the custody of the U.S.

Marshals Service at the D.C. Superior Court, they were patted

down and screened by a magnetometer before entering the cell

block; no contraband or weapons were found. They then were

subjected to drop-squat-and-cough strip searches; no contraband

or weapons were found. They were released from custody upon

being arraigned by a judicial officer of the Superior Court

without being intermingled with other arrestees or committed to

a detention facility to await trial. See Bame, et al. v. Dillard,

647 F. Supp. 2d 43, 47–48 (D.D.C. 2009).

Two Supreme Court cases elucidate the relevant qualified

immunity principles that the majority ignores in relying on

developments in the law subsequent to the challenged strip

searches. First, in Harlow v. Fitzgerald, 457 U.S. 800 (1982),

the Supreme Court held that “government officials performing

discretionary functions generally are shielded from liability for

civil damages insofar as their conduct does not violate clearly

established statutory or Constitutional rights of which a

reasonable person would have known.” Id. at 818. The Court

observed:

Reliance on the objective reasonableness of an

official’s conduct, as measured by reference to clearly

established law, should avoid excessive disruption of

government and permit the resolution of many

insubstantial claims on summary judgment. On

summary judgment, the judge appropriately may

determine, not only the currently applicable law, but

whether that law was clearly established at the time an

action occurred.

3

Id. (emphasis supplied and footnote omitted). The Court

emphasized that “[b]y defining the limits of qualified immunity

essentially in objective terms, we provide no license to lawless

conduct.” Id. at 819. Thus, “[w]here an official could be

expected to know that certain conduct would violate statutory

or Constitutional rights, he should be made to hesitate; and a

person who suffers injury caused by such conduct may have a

cause of action.” Id. at 819.

While emphasizing that “a reasonably competent public

official should know the law governing his conduct,” id. at 819,

the Court reserved judgment on the “circumstances under which

‘the state of the law’ should be ‘evaluated by reference to the

opinions of this Court, of the Courts of Appeals, or of the local

District Court,’” id. at 819 n.32 (quoting Procunier v.

Navarette, 434 U.S. 555, 565 (1978)). In Wilson v. Layne, 526

U.S. 603 (1999), the Court resolved this dilemma by concluding

that “cases of controlling authority in their jurisdiction” or “a

consensus of cases of persuasive authority” could suffice. Id.

at 617. In Harlow, the Court had observed that “an official

could not reasonably be expected to anticipate subsequent legal

developments.” 457 U.S. at 818. Rather, the law at the time of

the challenged conduct would be the measure of his eligibility

for qualified immunity. See id.

Second, in Safford Unified School District No. 1 v.

Redding, 129 S. Ct. 2633 (2009), the Supreme Court, continuing

to focus on the law at the time of the challenged conduct,

reiterated that there need not be a prior factually

indistinguishable case in order for qualified immunity to be

denied: “there is no need that ‘the very action in question [have]

previously been held unlawful.’” Id. at 2643 (quoting Wilson v.

Layne, 526 U.S. 603, 615 (1999) (alteration in original)).

Although “[t]he unconstitutionality of outrageous conduct

obviously will be unconstitutional,” the Court observed that

4

“even as to action less than an outrage, officials can still be on

notice that their conduct violates established law . . . in novel

factual circumstances.” Id. at 2643 (quoting Hope v. Pelzer,

536 U.S. 730, 741 (2002) (alteration in original)).

Prior to the events in Redding, the issue regarding searches

of students had been addressed in only a handful of cases and

they went both ways. Id. at 2643–44. The Court, therefore,

focused on the extent to which the mixed case law suggested

that a previous Supreme Court decision, New Jersey v. T.L.O.,

469 U.S. 325 (1985), did not definitively resolve the issue. Id.

The analysis is different in the instant case because in 2002 the

law of the circuit courts of appeals was uniform and had been

for some time, much as in Pearson v. Callahan, 129 S. Ct. 808

(2009). There the Supreme Court concluded that the narcotics

task force officers were entitled to rely on the consensus among

the courts to the consent-once-removed doctrine at the time of

their warrantless entry into a home, despite the lack of a ruling

from the officers’ own federal circuit, id. at 823. Marshal

Dillard characterizes the Supreme Court’s decision in Bell v.

Wolfish, 441 U.S. 520 (1979), as permitting visual body-cavity

inspections in an institutional setting for security reasons, and

thus permitting the challenged strip searches. This

characterization, however, fails to take into account the question

left open in Bell, the evolution of the law addressing that

question between 1979 and 2002, or the factual differences

between the judicially committed pretrial detainees in Bell and

the pre-arraignment arrestees in the instant case.

A.

Bell v. Wolfish involved the treatment of pretrial detainees

who had been committed to “a federally operated short-term

custodial facility in New York City designed primarily to house

pretrial detainees” that also housed “some convicted inmates

who are awaiting sentencing or transportation to a federal prison

5

or who are serving generally relatively short sentences.” 441

U.S. at 523–24. After “every contact visit with a person from

outside the facility,” the pretrial detainees were “required to

expose their body cavities for visual inspection as a part of a

strip search”: if male, “he must lift his genitals and bend over to

spread his buttocks for visual inspection[,]” if female, “vaginal

and anal cavities . . . are visually inspected.” Id. at 558 & n.39.

The district court had ruled that body-cavity searches were

permissible only upon a contemporaneous showing of probable

cause to believe the inmate is concealing contraband. See

United States ex rel. Wolfish v. Levi, 439 F. Supp. 114, 148

(S.D.N.Y. 1977). The Supreme Court reversed, holding that,

assuming pretrial detainees “retain some Fourth Amendment

rights upon commitment to a corrections facility,” Bell v.

Wolfish, 441 U.S. at 558, there are circumstances in which a

strip search can be conducted “on less than probable cause,”

without clarifying what the standard actually is, id. at 560.

Although stating that “[a]dmittedly, this practice instinctively

gives us the most pause,” the Court held that “under the

circumstances, we do not believe that these searches are

unreasonable.” Id. at 558. The Court noted with regard to the

pretrial detainees that “[u]nder the Bail Reform Act, 18 U.S.C.

§ 3146, a person in the federal system is committed [by a

judicial officer after a hearing] to a detention facility only

because no other less drastic means can reasonably ensure his

presence at trial.” Id. at 524; see 18 U.S.C. § 3142(e). The

Court further observed that “[a] detention facility is a unique

place fraught with serious security dangers,” Bell, 441 U.S. at

559, noting that “[s]muggling of money, drugs, weapons, and

other contraband is all too common an occurrence,” id.

In Bell the Court stated that the “test of reasonableness

under the Fourth Amendment” is “a balancing of the need for

the particular search against the invasion of personal rights that

the search entails.” Id. at 559. It reasoned that “maintaining

6

institutional security and preserving internal order and

discipline are essential goals that may require limitation or

retraction of the retained constitutional rights of both convicted

prisoners and pretrial detainees,” and that infringement of

constitutional guarantees “must be evaluated in the light of the

central objective of prison administration, safeguarding

institutional security.” Id. at 546–47. Concluding both that “[a]

detention facility is a unique place fraught with serious security

dangers,” id. at 559 (emphasis added), and that “[t]he searches

must be conducted in a reasonable manner,” id. at 560, the

Court emphasized that it was addressing only one question as to

the committed pretrial detainees: “whether visual body-cavity

inspections as contemplated by the [detention facility’s] rules

can ever be conducted on less than probable cause.” Id.

(emphasis in the original). Upon “[b]alancing the significant

and legitimate security interests of the institution against the

privacy interests of the inmates,” the Court “conclude[d] that

they can.” Id.

The question remaining after Bell was whether strip

searches of individuals arrested for non-violent minor offenses

who are not committed to a detention facility to await trial are

reasonable under the Fourth Amendment in the absence of

reasonable suspicion the arrestee is hiding contraband or

weapons. Lower courts applied Bell’s balancing test, noting that

the Supreme Court had approved strip searches of pretrial

detainees only where objective circumstances indicated they

were needed to maintain institutional security, and not as

validating a blanket policy of strip searching all pretrial

detainees. See, e.g., Masters v. Crouch, 872 F.2d 1248, 1253

(6th Cir. 1989); Mary Beth G. v. City of Chicago, 723 F.2d

1263, 1272 (7th Cir. 1983). The Fourth Circuit, in holding

unconstitutional strip searches of arrestees who would not be

intermingled with the general jail population and were accused

of crimes not associated with concealing contraband, identified

7

four factors that weighed against strip searching: (1) the plaintiff

would not be intermingled with the general jail population; (2)

the offense was not one usually associated with possession of

weapons or contraband; (3) there was no cause to believe the

particular detainee might possess either; and (4) when the search

was conducted the plaintiff had been at the detention center for

one and one-half hours “without even a pat-down search.”

Logan v. Shealy, 660 F.2d 1007, 1013 (4th Cir. 1981), cert.

denied sub nom. Clements v. Logan, 455 U.S. 942 (1982). The

following year the Seventh Circuit rejected strip search

distinctions between male and female arrestees as a denial of

equal protection, stating that the City of Chicago had “failed to

show that men and women minor offenders are not similarly

situated,” Mary Beth G., 723 F.2d at 1274 (emphasis in

original), and concluding that a strip search of misdemeanor

arrestees in City lockups while awaiting arrival of bail money

was impermissible absent “a reasonable suspicion by the

authorities that either of the twin dangers of concealing weapons

or contraband existed,” id. at 1273. The Ninth and Tenth

Circuits adopted a similar approach in balancing the interests

identified in Bell, and concluded that intermingling with other

arrestees or detainees did not necessarily justify strip searches.

See Giles v. Ackerman, 746 F.2d 614, 618–19 (9th Cir. 1984),

cert. denied, 471 U.S. 1053 (1985), overruled on other grounds

by, Hodgers-Durgin v. de la Vina, 199 F.3d 1037, 1040 (9th Cir.

1999) (en banc); Hill v. Bogans, 735 F.2d 391, 394 (10th Cir.

1984). The Second Circuit in Weber v. Dell, 804 F.2d 796 (2d

Cir. 1986), adopted an analysis like that of the Fourth Circuit, id.

at 801–02, and noted the ten like opinions from seven circuit

courts of appeals, id. at 801, in rejecting as too broad a reading

of Bell that “suggest[s], much less require[s]” strip searches of

all arrested persons held at a jail in the interest of institutional

security, id. at 801. The Sixth Circuit, in view of its precedent

and that of other circuit courts of appeals, concluded, in 1989,

that:

8

it was clearly established in October 1986 that

authorities may not strip search persons arrested for

traffic violations and nonviolent minor offenses solely

because such persons ultimately will intermingle with

the general population at a jail when there were no

circumstances to support a reasonable belief that the

detainee will carry weapons or other contraband into

the jail. It is objectively reasonable to conduct a strip

search of one charged with a crime of violence before

that person comes into contact with other inmates.

There is an obvious threat to institutional security.

Masters, 872 F.2d at 1255. Thus, prior to 2002 all ten of the

circuit courts of appeal to address the open question from Bell

held that strip searches of arrestees for non-violent minor

offenses in the absence of reasonable suspicion were

unreasonable under the Fourth Amendment.

B.

As the district court found, and the majority does not

dispute, Maj. Op. at 8 n.*, “[u]ntil 2008, every federal circuit

court of appeals to have addressed the issue (ten out of twelve)

ruled that, under Bell, suspicionless strip searches of pre-trial

arrestees charged with non-violent minor offenses was

unreasonable and thus unconstitutional.” Bame v. Dillard, 647

F. Supp. 2d 43, 51 (D.D.C. 2009). The district court cited:

Wilson v. Jones, 251 F.3d 1340, 1343 (11th Cir. 2001); Swain v.

Spinney, 117 F.3d 1, 7 (1st Cir. 1997); Masters, 872 F.2d at

1250 (6th Cir.); Weber, 804 F.2d 796 (2d Cir.); Stewart v.

Lubbock County, 767 F.2d 153, 156 (5th Cir. 1985); Jones v.

Edwards, 770 F.2d 739 (8th Cir. 1985) ; Giles, 746 F.2d at

616–18 (9th Cir.); Hill, 735 F.2d at 394 (10th Cir.); Mary Beth

G., 723 F.2d 1263 (7th Cir.); and Logan, 660 F.2d at 1013 (4th

Cir.). Each of these circuit courts of appeals held either that

reasonable suspicion was required regardless of whether the

9

arrestee was intermingled with other arrestees or that reasonable

suspicion was required when the arrestee did not so intermingle.

“In other words, at the time of the searches at issue here

(September 2002), all these courts, some for nearly twenty-five

years, required at least reasonable suspicion to strip search a

pre-trial or pre-arraignment arrestee charged with a non-violent,

non-drug crime.” Bame, 647 F. Supp. 2d at 51.

The law in the District of Columbia as of 2002 reflected the

consensus of the circuit courts of appeal. In 1982, in a case

pending in the U.S. District Court for the District of Columbia

involving female protesters, the District government entered into

a memorandum of agreement that strip and squat searches of

females arrested for non-violent misdemeanors could be

conducted only where there is reasonable suspicion the arrestee

is carrying a weapon, contraband, or evidence that officers

reasonably believe can only be discovered by a strip or squat

search or, in some circumstances, when the arrestee is going to

be placed in the general inmate population. Morgan v. District

of Columbia, No. 81-1419 (D.D.C. July 22, 1981); see Bame,

647 F. Supp. 2d at 47. Although Marshal Dillard argues that the

Morgan agreement concerned only female arrestees and did not

bind him, the district court noted that it bound the District of

Columbia and that Marshal Dillard was familiar with it, Bame,

647 F. Supp. 2d at 47 (citing depositions of Marshal Dillard and

his Deputy). Marshal Dillard concedes that a case applying the

Morgan agreement, Morgan v. Barry, 596 F. Supp. 897, 899

(D.D.C. 1984), required reasonable individualized suspicion

before permitting the challenged strip search procedure.

Additionally, the settlement in Helton v. United States, 191

F. Supp. 2d 179, 185 (D.D.C. 2002), put the Marshals Service in

the District of Columbia directly on notice six months before the

challenged strip searches that they were unconstitutional absent

individualized reasonable suspicion. Although Helton involved

10

the Federal Tort Claims Act and District of Columbia tort law

rather than the Fourth Amendment, the Constitutional issue was

directly implicated because the government argued that plaintiffs

(who were anti-fur protesters at a Neiman Marcus department

store) were required to prove that the strip and squat search

ordered by the U.S. Marshals Service was unconstitutional in

order to prevail on their intrusion-upon-seclusion tort claim.

The district court ruled that plaintiffs had adequately alleged a

Constitutional violation by the U.S. Marshals Service to the

extent doing so was required to prevail on the non-constitutional

tort claim, noting the “wealth of case law” requiring reasonable

suspicion:

Although almost every federal court of appeals has

ruled that strip searches of individuals arrested for

nonviolent misdemeanors or other minor offenses

violate the Fourth Amendment absent “reasonable

suspicion,” this Circuit has yet to address the issue. The

District Court reached the issue in Doe v. Berberich,

704 F. Supp. 269 (D.D.C. 1988). . . . The court’s

central holding is in line with virtually every other

decision on this issue: “[t]here must be reasonable

suspicion that the category of offenders subject to strip

searches might possess weapons or contraband.” Id. at

271. The court then held that the strip searches were

constitutional even though plaintiffs were charged only

with misdemeanors, because the police had complied

with governing regulations and had reasonable

suspicion to believe plaintiffs were concealing

contraband or drugs, given the nature of the offense of

possession of a controlled substance. Id. at 272.

Helton, 191 F. Supp. 2d at 185. In Doe v. Berberich, the district

court noted precedent rejecting different strip search

requirements for female and male arrestees. 704 F. Supp. at 271

11

(citing Mary Beth G. v. City of Chicago, 723 F.2d 1263 (7th Cir.

1983)).

Reflecting this state of the law, the United States Marshals

Service Policy issued in July 1999 instructed that members of

the Marshals Service were authorized to conduct strip searches

“when there is reasonable suspicion that the prisoner may be (a)

carrying contraband and/or weapons, or (b) considered to be a

security, escape, and/or suicide risk.”2 USMS Policy 99-25 at 3.

The Policy made no distinction between male and female

arrestees, and it included a non-exclusive list of six criteria on

which to base reasonable suspicion.3

2

Marshal Dillard has not claimed that the plaintiffs presented

individualized security, escape, and/or suicide risks.

3

The Policy listed six non-exclusive criteria, one or more of

which may provide the basis for concluding reasonable suspicion

exists:

a. Serious nature of the offense(s) charged, i.e., whether crime

of violence or drugs;

b. Prisoner’s appearance or demeanor;

c. Circumstances surrounding the prisoner’s arrest or

detention[,] i.e., whether the prisoner has been convicted or is

a pretrial detainee;

d. Prisoner’s criminal history;

e. Type and security level of institution in which the prisoner

is detained; or

f. History and discovery of contraband and/or weapons, either

on the prisoner individually or in the institution in which the

prisoners are detained.

USMS Policy 99-25 at 3.

12

The district court found that Marshal Dillard and his Deputy

“received annual training on the constitutional and legal

standards in regard to searches and strip searches,” Bame, 647

F. Supp. 2d at 47 (citing depositions of Marshal Dillard and his

Deputy), in addition to being familiar with then-recent litigation

in the District of Columbia challenging strip searches of female

protesters, id. Further, the district court found that Marshal

Dillard did “not seriously contend that no justification was

required for the [‘Drop, Squat, and Cough’ strip] search,” but

simply “did not develop any justification for strip searching the

protester-arrestees, despite the balancing called for in the USMS

Policy dating back to 1999.” Bame, 647 F. Supp. 2d at 51–52;

see id. at 46.

According to Marshal Dillard, in September 2002 the policy

in the District of Columbia was to perform drop-squat-and-

cough strip searches of all persons in Marshals Service custody

who came into the Superior Court cell block. See Dillard

Deposition at 23 (May 29, 2008). This policy applied, as the

plaintiffs’ experiences show, even to those who had been

arrested for non-violent minor offenses where extensive pat-

downs of clothed arrestees and a magnetometer metal detector

revealed no contraband or weapons, and the arrestees were not

to be intermingled with other arrestees and had not been

arraigned or committed to a detention facility to await trial. The

district court ruled that the blanket policy violated the national

USMS Policy 99-25 and that in view of the post-Bell case law

consensus, the blanket policy and the strip searches of the

plaintiffs were unreasonable under the Fourth Amendment. Id.

at 51–52; see id. at 47–48.

II.

13

Marshal Dillard’s position on appeal, that because Bell

allowed strip searches in some circumstances and there was no

case law to the contrary addressing exactly the same

circumstances as in the instant case, the challenged strip

searches could not be considered clearly unconstitutional, is

without merit as a matter of Supreme Court precedent, Court of

Appeals precedent, and local District Court precedent. See

Harlow, 457 U.S. at 818 n.32; supra Part I. Indeed he goes so

far as to contend that, contrary to “a consensus of cases of

persuasive authority,” Wilson v. Layne, 526 U.S. at 617, the U.S.

Marshals Service was free to conclude that strip searches in the

absence of individualized articulable suspicion were

constitutional if a District of Columbia appellate court or the

Supreme Court had not addressed the issue. See Appellant’s Br.

at 28–29. The majority’s analysis is no less troubling inasmuch

as it confuses the roles of the court and the public official under

qualified immunity analysis. The Supreme Court has repeatedly

rejected the notion that a “reasonably competent public official,”

Harlow, 457 U.S. at 819, would not be bound to know the

“consensus of persuasive authority” from other circuits much

less his own district court by concluding that plaintiffs may

bring to the court either “cases of controlling authority in their

jurisdiction at the time of the incident which clearly established

the rule on which they seek to rely, [ ]or . . . a consensus of cases

of persuasive authority such that a reasonable officer could not

have believed that his actions were lawful,” Wilson v. Layne,

526 U.S. at 617; see Pearson, 129 S. Ct. at 823.

A.

Strip searches, as Bell makes clear and the district court

acknowledged, must balance strong institutional security

concerns of a detention facility and deference to prison officials

against the Fourth Amendment’s protections. Bame, 647 F.

Supp. 2d at 52 (citing Allison v. GEO Group, Inc., 611 F. Supp.

2d 433, 462 (E.D. Pa. 2009)); see Bell, 441 U.S. at 559, 560.

14

Not once, before or after 2002, has a circuit court of appeals, or

the Supreme Court, held that pre-arraignment arrestees for non-

violent minor offenses who are held apart from other arrestees

and pretrial detainees may be strip searched on less than

reasonable suspicion that they are hiding contraband or

weapons. More recent cases include Jimenez v. Wood Cnty.,

621 F.3d 372 (5th Cir. 2010); Sterns v. Clarkson, 615 F.3d 1278

(10th Cir 2010); Archuleta v. Wagner, 523 F.3d 1278, 1282,

1286 (10th Cir. 2008); and Campbell v. Miller, 499 F.3d 711,

718 (7th Cir. 2007). The recent decision of the Third Circuit in

Florence v. Board of Chosen Freeholders of the County of

Burlington, 621 F.3d 296 (3d Cir. 2010) (decided after briefing

in the instant case), also does not upset the appellate courts’

consensus, for the only question presented was “whether it is

constitutional for jails to strip search arrestees upon their

admission to the general population,” id. at 298 . Marshal

Dillard’s attempt to distinguish the Ninth Circuit’s opinion in

Giles, 746 F.2d at 617 — which held unconstitutional strip

searches without reasonable suspicion that an individual arrested

for a minor traffic offense possessed a weapon or contraband —

as involving a jail that historically had experienced fewer

contraband problems than the D.C. Superior Court cell block,

ignores that the arrestee in Giles was placed in the general jail

population, 746 F.2d at 616. And he apparently ignores that the

approach adopted by the Supreme Court in Harlow and its

progeny, focusing on whether at the time of a public official’s

challenged conduct a “doctrine had gained acceptance in the

lower courts,” Pearson, 129 S. Ct. at 822 (even if his “own

Federal Circuit had not yet ruled,” id. at 823), protects officials

who abide by that consensus from incurring liability for their

conduct, see id. at 823.

Marshal Dillard’s reliance on post-2002 decisions is doubly

flawed. Under Supreme Court qualified immunity precedent,

circuit court of appeals decisions since the strip searches at issue

15

in 2002 have no bearing on whether he is entitled to qualified

immunity on the ground that there was no clearly established

law to be followed in 2002. See Pearson, 129 S.Ct. at 823;

Wilson v. Layne, 526 U.S. at 617; Harlow, 457 U.S. at 818. But

taken on their own merit the post-2002 cases are distinguishable

on their facts and do not demonstrate that the law was unsettled

in 2002, much less after. The Eleventh Circuit’s en banc

reconsideration of Bell in Powell v. Barrett, 541 F.3d 1298 (11th

Cir. 2008), involved strip searches of “all arrestees as part of the

process of booking them into the general population of a

detention facility,” id. at 1300, and the holding was limited to

general population detainees, notwithstanding some of its more

sweeping language suggesting broader applicability. See id. at

1300, 1314. Similarly, the Ninth Circuit’s 2010 en banc

reconsideration of Bell was explicit in stating that although it

was upholding against a Fourth Amendment facial challenge a

policy allowing strip searches of all pre-arraignment arrestees

introduced into the general jail population for custodial housing,

“[w]e do not, however, disturb our prior opinions considering

searches of arrestees who were not classified for housing in the

general jail or prison population” and that “[t]he strip search

policy at issue in this case, and our holding today, applies only

to detainees classified to enter the general corrections facility

population.” Bull v. City and County of San Francisco, 595 F.3d

964, 981 & n.17 (9th Cir. 2010). It is clear from this language

that the Ninth Circuit sitting en banc in Bull took pains not to

disturb the well-settled case law requiring reasonable suspicion

to strip search arrestees who are not placed in the general jail

population. Moreover, distinguishable as these cases are, it

bears noting that it required decisions by the en banc courts to

revisit Bell, suggesting that absent en banc review the issue was

clearly established in those circuits

Marshal Dillard’s response, relying on Evans v. Stephens,

407 F.3d 1272 (11th Cir. 2005), Savard v. Rhode Island, 338

16

F.3d 23, 31–33 (1st Cir. 2003), and Oxley v. Penobscot County,

714 F. Supp. 2d 180 (D. Me. 2010), does not advance his cause.

In Evans, 407 F.3d at 1278–79, the Eleventh Circuit

distinguished Bell because the strip search was conducted by the

arresting officer for the purpose of obtaining evidence, and not

in order to prevent contraband from entering the general jail

population. And, in any event, the court denied qualified

immunity despite the absence of Supreme Court precedent

explicitly addressing the standard to be applied. Id. at 1279,

1283. In Savard, 338 F.3d at 26, 31–33, the First Circuit

allowed strip searches of misdemeanor arrestees who had not

generally been searched before and were intermingled with

violent offenders at the maximum security prison, as

distinguished from a local jail or police station, which the court

concluded was dispositive. In Oxley, 714 F. Supp. 2d at 181 &

n.3, the Maine district court did not reach the Constitutional

question, instead affirming a magistrate judge’s recommendation

of qualified immunity for an officer conducting a strip search

who incorrectly but reasonably believed there was a valid

reasonable articulable suspicion that the plaintiff was carrying

contraband, because the plaintiff failed timely to object to the

grant of summary judgment. See also id. at 184 n.4. Given that

the district court’s interpretation of Bell in Oxley is diametrically

opposed to that of Marshal Dillard, id. at 183–86, it is unclear

how he has concluded the case could help his cause.

In sum, Marshal Dillard’s reference to a circuit split on

certain strip search law questions is unpersuasive for purposes

of qualified immunity because there was not a split in 2002. His

contention that “[a]lthough only the law that existed before

September 2002 can be relied upon to establish its clarity in

2002, the reasonableness of [his] conduct is properly analyzed

considering the application of cases more recent than 2002,”

Reply Br. 21, fails for at least two reasons. First, it ignores

Supreme Court precedent that, in order to secure Fourth

17

Amendment protections, “a reasonably competent public

official” must “know the law governing his conduct” and “that

certain conduct would violate statutory or constitutional rights,”

Harlow, 457 U.S. at 819. A decrease in clarity of the law after

2002 would not make a strip search in 2002 more reasonable.

Second, none of the cases cited by Marshal Dillard upset the

consensus of circuit courts of appeals “that authorities may not

strip search persons arrested for . . . nonviolent minor offenses

solely because such persons ultimately will intermingle with the

general population at a jail when there were no circumstances to

support a reasonable belief that the detainee will carry weapons

or other contraband into the jail.” Masters, 872 F.2d at 1255,

quoted supra page 8. His suggestion that the number of cases

discussing strip searches indicates that the law is uncertain also

is unpersuasive because the cases reach the same result. Indeed,

as a further indication of this stability, most recently (after briefs

in this case had been filed) the Tenth Circuit in Stearns v.

Clarkson, 615 F.3d 1278 (10th Cir. 2010), held that a sergeant

was not entitled to qualified immunity for strip searching an

arrestee at a county jail without reasonable suspicion where the

arrestee was not placed in the general inmate population

although the officer who performed the strip search had been

told that the arrestee was “‘going around following officers, and

going to their homes, making threats.’” Id. at 1287. The court

concluded that the threats did not supply “specific and

articulable facts” suggesting a reasonable suspicion that the

arrestee was carrying contraband, and the officer’s conduct was

therefore contrary to clearly established law, including

controlling circuit precedent. Id.

To the extent Marshal Dillard suggests that the national

USMS Policy 99-25 allowed a blanket, non-particularized strip

search if an arrestee was entering a facility with a history of

smuggled contraband, that Policy itself states that strip searches

must be based on reasonable suspicion that a prisoner may be

18

carrying contraband or weapons or may be a security risk, and

that one factor to consider is the “[h]istory of discovery of

contraband and/or weapons, either on the prisoner individually

or in the institution in which prisoners are detained.” A blanket

policy based solely on the history of contraband discovered at

the Superior Court cell block ignores the other factors listed in

Policy 99-25, such as the nature of the offense charged, and the

balancing that Bell contemplates, 441 U.S. at 559, 560.

Moreover, to the extent Marshal Dillard suggests post-2002

events are relevant in evaluating the reasonableness of his

conduct, a blanket policy is inconsistent with the revised

national U.S. Marshals Service policy of April 23, 2003

allowing strip searches only upon an individualized finding of

reasonable suspicion and a supervisor’s approval.

B.

The majority opinion does not address the specific

Constitutional right asserted here: the right of an individual

arrested for a non-violent minor offense who, unlike in Bell, is

awaiting arraignment to be free from a strip search absent

reasonable suspicion the individual is hiding contraband or

weapons. In Wilson v. Layne, however, the Supreme Court

observed that “[i]t could plausibly be asserted that any violation

of the Fourth Amendment is ‘clearly established,’ since it is

clearly established that the protections of the Fourth Amendment

apply to the actions of police.” 526 U.S. at 615. As a

consequence, the Court held that “the right allegedly violated

must be defined at the appropriate level of specificity before a

court can determine if it was clearly established.” Id. (citing

Anderson v. Creighton, 483 U.S. 635, 641 (1987)). It is

reasonable, as the district court found, to expect Marshal Dillard

as “a reasonably competent public official,” Harlow, 457 U.S.

at 819, to be aware in 2002 of the distinction between the

institutional concerns arising from judicially committed pretrial

detainees who have had contact visits with persons outside of a

19

detention facility, as in Bell, and those that arise at a courthouse

cell block with regard to pre-arraignment arrestees for non-

violent minor offenses who have been subjected to pat-downs

and metal magnetometric searches and are not intermingled with

other arrestees or pretrial detainees, and consequently have no

opportunity to smuggle contraband and weapons to others and

thereby threaten institutional security, because the case law

consensus made, that distinction. So does the national U.S.

Marshals Service Policy.

Instead, the majority, by eliding this distinction leaves any

right so broadly defined that it could plausibly be asserted that

no violation of the Fourth Amendment is “clearly established”

absent an opinion of the Supreme Court or this court addressing

the merits of a Fourth Amendment claim in the particular

circumstances at issue. Absent that, according to the majority,

a reasonable public official ignores the consensus of persuasive

opinion of the circuit courts of appeals, ignores rulings of the

federal district court having jurisdiction over the official’s

conduct, ignores the policy of his own agency summarizing the

current law, and instead hopes that someday a court will

conclude the prior consensus misapprehended Constitutional

protections. Whereas the Supreme Court has acknowledged that

“an official could not reasonably be expected to anticipate

subsequent legal developments,” Harlow, 457 U.S. at 818, the

majority would, in effect, allow a public official to invoke

qualified immunity upon stating: “I reasonably anticipated that

the courts would revise their opinions.” It matters not, or so it

appears if the public official’s attempt at clairvoyance is deemed

reasonable by a court, whether the official’s vatic utterance

comes to fruition. See Maj. Op. at 10-12. Yet the point

underscored by Harlow and its progeny in adopting an objective

standard is to ensure the protection of Constitutional rights by

limiting qualified immunity claims to those based on the law as

a “reasonably competent public official” would understand it at

20

the time of his challenged action. Otherwise qualified immunity

as the majority defines it leaves the protection of individual

Constitutional rights to the subjective interpretation of public

officials.

Most notably, in deciding whether for purposes of qualified

immunity the law was clearly established in 2002, the majority

fails to distinguish, as established by Harlow and its progeny,

between the role of the court to determine whether the law is

“clearly established” at the time of the public official’s

challenged conduct, and the role of the public official to know

and conform his conduct to controlling case law in his

jurisdiction, or if none, to the consensus of cases of persuasive

authority of which a reasonably competent public official should

be aware. In allowing Marshal Dillard to claim qualified

immunity based on post-2002 circuit court of appeals decisions,

the majority returns to the pre-Harlow subjective standard

whereby a public official is empowered to read a Supreme Court

decision on the Fourth Amendment (Bell) as being conclusive on

the constitutionality of strip searches of pre-arraignment

arrestees such as the plaintiffs despite the clearly established

consensus among the other circuit courts of appeals and district

court opinions in the official’s circuit. As the Supreme Court

has adhered to the objective standard adopted in Harlow, the

public official has no such authority. Although this court has

authority to read Bell differently than other circuits, Marshal

Dillard can point to no case law that would allow him to make

that determination, and the majority understandably does not

address the cases he cites — Evans, Savard and Oxley — as they

offer no support for the view that the consensus was weak or

breaking up, see supra Part II.A

The majority misses the point in its discussion of how the

ten circuit courts of appeals had interpreted Bell as of 2002.

First, for purpose of claiming qualified immunity the Supreme

21

Court has already advised public officials of the standard to

which they must conform their conduct: clearly established law

as evidenced by a consensus of persuasive authority at the time

of their conduct. Of course, had the Supreme Court held, or

were this court to hold, that the challenged conduct is

Constitutionally permissible, which the majority does not hold,

then the plaintiffs would have no Bivens claim: “If no

constitutional right would have been violated were the

allegations established, there is no necessity for further inquiries

concerning qualified immunity.” Saucier v. Katz, 533 U.S. 194,

201 (2001). But the subjective belief of a public official about

the law is not the test. But see Maj. Op. at 10-12. Second,

because Bell involved judicially committed pretrial detainees

who had contacts with persons outside of the facility while

housed in a “unique” detention facility with convicted prisoners,

the Court’s particular balancing of “the circumstances,” Bell,

441 U.S. at 558, is of limited relevance. The question left open

in Bell was answered for Marshal Dillard before September

2002 by a consensus of persuasive authority from the circuit

courts of appeals and controlling authority from the federal

district court having jurisdiction over his conduct. These courts,

upon applying Bell’s balancing test, had uniformly held that the

Fourth Amendment protects pre-arraignment arrestees who like

the plaintiffs were arrested for non-violent minor offenses from

strip searches absent reasonable individualized suspicion of

hiding contraband or weapons.

Additionally, the majority concludes, erroneously, that the

en banc decisions of the Eleventh and Ninth Circuits in Powell

and Bull rejected the prior consensus reading of Bell as regards

pre-arraignment arrestees such as the plaintiffs and conflates this

rejection with a determination that those circuits more recently

did not see Fourth Amendment law as clearly established in

2002. The majority then uses this mistaken reading of Powell

and Bull to conclude that Marshal Dillard was likewise

22

empowered to interpret the law as unsettled in 2002. See Maj.

Op. at 10-12. The Eleventh and Ninth Circuits have the authority

to change clearly established law upon rehearing en banc, but

under Supreme Court precedent Marshal Dillard had no such

authority to ignore clearly established law. Even if the post-

2002 en banc decisions in Powell and Bull were relevant in

determining clearly established law in 2002, which they are not,

those holdings are limited to situations in which arrestees are

intermingled with the general jail population and present

institutional security concerns, and thus are distinguishable from

the Constitutional right at issue here.

As troubling as the majority’s low opinion is of what “a

reasonably competent public official” ought to know of the law

under Harlow and its progeny, more troubling are the

implications of the majority opinion for the protection of

Constitutional rights. Applying the analysis established by the

Supreme Court for determining when a public official may

assert qualified immunity has consequences generally, including

for peaceful protesters who come to the Nation’s Capital to

exercise their First Amendment rights, as well as for any person

arrested for non-violent minor offense not usually associated

with weapons or contraband. Because Constitutional rights are

at risk, the Supreme Court has required that the focus of “a

reasonably competent public official” be on the law as it was

clearly established at the time of his conduct and not on his

subjective hope that the then-settled legal consensus may

change. The Supreme Court aimed to protect Constitutional

rights by limiting the availability of qualified immunity to those

officials who learn the law as it stands before they act and then

act in accordance with that law, not those who apply their

subjective views instead. Otherwise, although public officials

will not obviously be excused from “outrageous conduct

obviously . . . unconstitutional,” Redding, 129 S. Ct. at 2643,

they may, the Supreme Court foresaw, be excused from liability

23

for unconstitutional “action less than outrageous,” id., as where

a court finds “the law” anew prior to the conclusion of a

plaintiff’s litigation. The majority’s approach means there are

no objective limits to the scope of qualified immunity because

a court may one day hold that the settled consensus of

persuasive authority misapprehended a Supreme Court opinion

on the requirements of the Constitution. Although the analytical

approach that “the law” is there to be found may have

jurisprudential validity in some contexts, see Maj. Op. at 10-11

(citing 1 WILLIAM BLACKSTONE, COMMENTARIES *70–71), but

see Sosa v. Alvarez-Machain, 542 U.S. 692, 725 (2004)

(acknowledging that “there is a general understanding that the

law is not so much found or discovered as it is either made or

created”) (citing Black and White Taxicab & Transfer Co. v.

Brown and Yellow Taxicab & Transfer Co., 276 U.S. 518, 533

(1928) (Holmes, J., dissenting)), it is inapposite under Supreme

Court precedent on qualified immunity.

Accordingly, I respectfully dissent.