Johnson v. Government of the District of Columbia

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 13, 2013 Decided November 15, 2013

No. 11-5115

DIANNA JOHNSON, ET AL.,

APPELLEES

RUBBIYA MUHAMMED, ET AL.,

APPELLANTS

v.

GOVERNMENT OF THE DISTRICT OF COLUMBIA AND TODD

DILLARD, INDIVIDUALLY AND OFFICIALLY, UNITED STATES

MARSHAL, D.C. SUPERIOR COURT,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:02-cv-02364)

William Charles Cole Claiborne III argued the cause for

appellants. With him on the briefs were Barrett S. Litt and Paul

J. Estuar. Lynn E. Cunningham entered an appearance.

Robin M. Meriweather, Assistant U.S. Attorney, argued the

cause for appellee Todd Dillard. With her on the brief were

Ronald C. Machen, Jr., U.S. Attorney, and R. Craig Lawrence

and W. Mark Nebeker, Assistant U.S. Attorneys.

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Stacy L. Anderson, Assistant Attorney General, Office of the

Attorney General for the District of Columbia, argued the cause

for appellee District of Columbia. With her on the brief were

Irvin B. Nathan, Attorney General, Todd S. Kim, Solicitor

General, and Donna M. Murasky, Deputy Solicitor General.

Louis A. Kleiman entered an appearance.

Before: ROGERS, TATEL, and GRIFFITH, Circuit Judges.

Opinion for the Court filed by Circuit Judge TATEL.

Opinion concurring in part and concurring in the judgment

filed by Circuit Judge ROGERS.

TATEL, Circuit Judge: Concerned that contraband poses

significant dangers to inmates and employees, many penal

institutions strip search incoming detainees. The appropriateness

of these invasive procedures doubtless looks different from the

perspective of detainees such as Appellants—women forced to

endure strip searches while awaiting presentment hearings at the

District of Columbia Superior Court. Alleging that such searches

violate the Fourth Amendment and, where men are not similarly

strip searched, the Fifth Amendment’s equal protection

guarantee, these women filed this class action against the

District of Columbia and the former United States Marshal for

the Superior Court who administered the Superior Court

cellblock. Because men and women at the cellblock are now

strip searched only upon individualized reasonable suspicion, we

have no occasion to consider whether the policies under which

class members were strip searched may continue. Rather, the

only question in this case is whether class members can recover

damages from the District or from the former Superior Court

Marshal. The district court granted summary judgment to the

District, concluding that because the Superior Court Marshal in

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charge of the cellblock was at all times a federal official acting

under color of federal law, the city had no authority to prevent

the strip searches. The district court also granted summary

judgment to the Superior Court Marshal, finding him entitled to

qualified immunity. We affirm both rulings.

I.

Under the Anti-Drug Abuse Act of 1988, Pub. L. No. 100-

690, tit. VII, § 7608(a)(1), 102 Stat. 4181, 4512–15 (1988)

(codified at 28 U.S.C. §§ 561–569), two United States Marshals

serve the District of Columbia. The first, the U.S. Marshal for

the District of Columbia, serves the U.S. District Court and this

Court. 28 U.S.C. § 566(b). The second, the U.S. Marshal for the

District of Columbia Superior Court, serves that court only. 28

U.S.C. § 561(c). During the time of the events at issue in this

case, Appellee, Todd Dillard, served as Superior Court Marshal.

Sometime in the mid- to late-1990s, Dillard, concerned that

detainees were bringing weapons, drugs, and other contraband

into the cellblock, began requiring all incoming detainees to

undergo a three-step search. Detainees first passed through metal

detectors; they were then patted down by deputy marshals; and,

finally, they were required to remove their clothing, squat, and

cough to dislodge any hidden contraband. The parties refer to

these “drop, squat, and cough” searches as strip searches. Given

that “[t]he evidence of the non-movant is to be believed, and all

justifiable inferences are to be drawn in his favor,” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 255 (1986), we infer from the

evidence presented that despite Dillard’s facially gender-neutral

policy, deputy marshals in fact subjected male detainees to strip

searches only upon individualized reasonable suspicion. By

contrast, all women were forced to drop, squat, and cough. This

included female pre-presentment arrestees charged with non-

violent, non-drug offenses. After completing the three-step

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search process, female pre-presentment arrestees proceeded to

interview rooms outside presentment courtrooms. Roughly

eighty percent of female arrestees were released following these

hearings.

In 2002, a class of women detained and strip searched at the

Superior Court cellblock filed this suit seeking damages and

injunctive relief. After the United States Marshals Service halted

strip searches without individualized reasonable suspicion, class

members abandoned their claims for injunctive relief and filed

an amended complaint in which they sought only monetary relief

from the District of Columbia and Dillard, whom they sued in

his personal and professional capacities. The District and Dillard

separately moved to dismiss the complaint for failing to state

any claims upon which relief could be granted. The district court

denied both motions and certified two classes: a Fourth

Amendment Class and a Fifth Amendment Class. The Fifth

Amendment Class includes all female pre-presentment arrestees

held at the Superior Court cellblock between December 2, 1999

and April 25, 2003 and subjected to strip searches “under similar

circumstances for which men arrestees were not.” See Johnson

v. District of Columbia, 584 F. Supp. 2d 83, 86 (D.D.C. 2008).

The Fourth Amendment Class includes all female pre-

presentment arrestees who, during the same time period, were

strip searched without individualized reasonable suspicion or

probable cause and who were arrested for non-drug, non-violent

offenses. See id.

Following class certification, the district court entered

summary judgment in favor of the District. Believing that the

Superior Court Marshal is a federal official who acted at all

times under color of federal law, and that the District therefore

had no choice but to turn pre-presentment arrestees over to the

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Marshal, the court concluded that the District could not be held

liable for any unconstitutional acts of the Marshal. Id. at 90–93.

After further discovery, the district court orally granted

Dillard summary judgment on all claims against him in his

professional capacity, finding that his status as a federal official

left him beyond the reach of 42 U.S.C. § 1983. See Johnson v.

District of Columbia, 780 F. Supp. 2d 62, 68 (D.D.C. 2011)

(describing this holding). Several months later, the district court,

finding Dillard entitled to qualified immunity, granted him

summary judgment on all claims against him in his personal

capacity. As for the claims of Fourth Amendment Class

members, the district court, relying on our recent decision in

Bame v. Dillard, 637 F.3d 380 (D.C. Cir. 2011), where we

rejected similar Fourth Amendment claims brought by male

detainees against the very same Marshal Dillard, see id. at 382,

concluded that any Fourth Amendment rights Dillard might have

violated were insufficiently clearly established at the time of the

violation. Johnson, 780 F. Supp. 2d at 73–75. As for the claims

of Fifth Amendment Class members, the court, relying on

Ashcroft v. Iqbal, 556 U.S. 662 (2009), found no Equal

Protection violation because nothing in the record indicated that

Dillard intended to treat women differently from men. Johnson,

at 780 F. Supp. 2d at 79–81.

On appeal, class members press their claims against the

District and Dillard, but only in his personal capacity. We

review the district court’s grants of summary judgment de novo,

viewing the evidence in the light most favorable to class

members. See, e.g., Holcomb v. Powell, 433 F.3d 889, 895 (D.C.

Cir. 2006). We first consider whether class members may hold

the District liable for Dillard’s conduct. Then, taking the Fourth

and Fifth Amendment claims separately, we consider whether

Dillard is entitled to qualified immunity.

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II.

Members of both the Fourth and Fifth Amendment Classes

seek to hold the District of Columbia liable under 42 U.S.C. §

1983 for the Superior Court Marshal’s conduct. As the Supreme

Court explained in Monell v. Department of Social Services, 436

U.S. 658 (1978), municipalities can be held liable under section

1983 only “when execution of a government’s policy or custom,

whether made by its lawmakers or by those whose edicts or acts

may fairly be said to represent official policy, inflicts the injury.”

Id. at 694. Conceding that no express District policy gave rise to

their injuries, class members offer two theories—the “organic

theory” and the “entrustment theory”—to explain how the

District might nonetheless be liable under section 1983 for

Dillard’s conduct.

Organic Theory

According to this theory, the Superior Court Marshal’s

Office is “part of the organic government of the District of

Columbia just as much as the Mayor, City Council and Superior

Court.” Appellants’ Br. 44 (emphasis omitted). Claiming that

the Superior Court is best understood as a state court, not a

federal court, class members argue that the Superior Court

Marshal derives his authority from “the inherent powers of the

Superior Court.” Appellants’ Br. 50. Insofar as the Superior

Court Marshal “handles pre-presentment arrestees . . . as the

policy maker for the District, by delegation from the

policymaker, or pursuant to a widespread custom or practice in

which the District of Columbia acquiesced,” Appellants’ Br. 44,

class members urge us to find the District liable under section

1983 for any unconstitutional acts of the Marshal.

But we agree with the district court that the Superior Court

Marshal is not a District official. Rather, the Superior Court

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Marshal “logically and expressly derives” his authority from

federal law, specifically the Anti-Drug Abuse Act of 1988. See

Johnson, 584 F. Supp. 2d at 90. Pursuant to that Act, “[t]he

President shall appoint, by and with the advice and consent of

the Senate, a United States marshal for each judicial district of

the United States and for the Superior Court of the District of

Columbia.” 28 U.S.C. § 561(c). Like all other U.S. Marshals, the

Superior Court Marshal “shall be an official of the Service and

shall serve under the direction of the Director,” id., who “shall

supervise and direct the United States Marshals Service in the

performance of its duties.” 28 U.S.C. § 561(g). Each U.S.

Marshal serves a four year term unless he resigns or is removed

by the President. 28 U.S.C. § 561(d). Thus, Dillard, as Superior

Court Marshal, was appointed and confirmed through a federal

process, served as part of a federal agency under the direction of

a federal official, and at all times could have been removed by

the President. Under these circumstances, Dillard was hardly as

much “part of the organic government of the District of

Columbia . . . as the Mayor.” Appellants’ Br. 44 (emphasis

omitted).

Acknowledging that the Superior Court Marshal qualifies as

a federal official for purposes of appointment and removal, class

members nonetheless argue that he derives no authority from

federal law. But why would Congress create a U.S. Marshal’s

office for a particular court and yet deny the holder of that office

any federal authority? Class members have no answer, nor do

we. Instead, class members find this bizarre result implicit in

two provisions of the Anti-Drug Abuse Act. They first point to

section 566(a), which outlines the “primary role and mission of

the United States Marshals Service.” 28 U.S.C. § 566(a). Under

this section, U.S. Marshals “provide for the security and . . .

obey, execute, and enforce all orders of the United States

District Courts, the United States Courts of Appeals, the Court

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of International Trade, and the United States Tax Court, as

provided by law.” Id. As class members emphasize, this list does

not include the Superior Court. Second, class members seize on

the word “Federal” in section 566(e)(1), which authorizes the

United States Marshals Service “to provide for the personal

protection of Federal jurists, court officers, witnesses, and other

threatened persons.” 28 U.S.C. § 566(e)(1). Class members

argue that inclusion of the word “Federal” makes the entire

subsection inapplicable to the Superior Court because, according

to them, the Superior Court is equivalent to a state court. From

these two provisions, class members conclude, “[T]he Act

addresses the USMS’s role regarding the federal courts (as

opposed to addressing at all the local D.C. Courts).” Appellants’

Br. 48.

Class members’ reliance on these provisions is misplaced.

For one thing, section 566(a) lays out the “primary”—not

“exclusive”—“role and mission of the United States Marshals

Service.” Nothing in section 566(a) suggests that Congress

intended to deprive the Superior Court Marshal of all federal

authority within the court Congress designated that Marshal to

serve. Moreover, given the dual federal/state status of Superior

Court judges, Congress would have had to have used more

specific language than “Federal jurist” to exclude them from

section 566(e)(1)’s authorizations, especially given Congress’s

decision to create the office of Superior Court Marshal. See

United States v. Stewart, 104 F.3d 1377, 1391 (D.C. Cir. 1997)

(noting that D.C. Superior Court judges are “Article I . . . judges,

whom Congress intended to be analogous to state court judges”

and holding that a federal statute “authorized [them] to act as

federal committing magistrates”). In any event, the statutory

scheme gives the District no power to exercise authority over or

delegate authority to the Superior Court Marshal. Instead, the

statute clearly says that the Superior Court Marshal serves at the

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“direction” of the United States Marshals Service. See 28 U.S.C.

§ 561(c). Thus, any authority Dillard exercised as Superior

Court Marshal, whether delegated by the United States Marshals

Service or provided directly by statute, was federal in nature.

Because Dillard, as Superior Court Marshal, was at all times

a federal official acting under color of federal law, the organic

theory provides no basis for finding the District liable under

section 1983.

Entrustment Theory

Under this theory, the District exhibited deliberate

indifference to Dillard’s unconstitutional conduct by continuing

to send pre-presentment arrestees to the Superior Court cellblock

despite knowing they would be strip searched there. Holding a

municipality liable for its deliberate indifference requires more

than “a showing of simple or even heightened negligence.”

Board of County Commissioners v. Brown, 520 U.S. 397, 407

(1997); see also City of Canton v. Harris, 489 U.S. 378, 390

(1989) (requiring that plaintiffs show that the municipality’s

policy was “so likely to result in the violation of constitutional

rights,” and the need to change that policy “so obvious,” that

policymakers “can reasonably be said to have been deliberately

indifferent to the need”). To prevail on this theory, class

members would have to show at least that the District had actual

or constructive notice of unconstitutional strip search practices,

as well as discretion to stop sending pre-presentment arrestees to

the Superior Court Marshal. See Warren v. District of Columbia,

353 F.3d 36, 36–39 (D.C. Cir. 2004) (“[F]aced with actual or

constructive knowledge that its agents will probably violate

constitutional rights, the city may not adopt a policy of

inaction.”).

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We agree with the district court that even assuming that the

District had notice of the strip search practices and that those

practices were unconstitutional, the District lacked the discretion

necessary for class members to prevail. Given that Dillard was at

all times acting under color of federal law, see supra 6–9, the

District had no authority to prevent him from conducting strip

searches of arrestees upon their arrival at the Superior Court.

Relying on two circuit court decisions, one by this Court and one

by the Sixth Circuit, see Warren, 353 F.3d 36; Deaton v.

Montgomery County, 989 F.2d 885 (6th Cir. 1993), for the

proposition that “[i]t does not matter if the transferor has no

control over the facility in which it places its prisoners,”

Appellants’ Br. 34, class members believe they can prevail even

if Dillard was at all times a federal official acting under color of

federal law. In each of the cited cases, however, the municipality

had contracted to send its prisoners to a penal facility; even

though the municipality exercised no direct control over policies

and practices at the facility, it retained power to cancel the

contract in the event of constitutional violations. See Warren,

353 F.3d at 37; Deaton, 989 F.2d at 885. Here, by contrast,

nothing in the record suggests that the District could have held

presentment hearings somewhere other than the Superior Court.

And although class members insist that the District had statutory

authority to bypass the Superior Court Marshal and deliver pre-

presentment arrestees directly to Superior Court judges, the

statutory provisions class members rely on are ambiguous at

best. Thus, the District’s failure to embrace class members’

statutory interpretation hardly demonstrates “deliberate

indifference to the rights” of arrestees. See Canton, 489 U.S. at

388. Class members also claim that the District would lack

authority to issue citations or release arrestees on bond if it had

to deliver all arrestees to the Superior Court Marshal. But the

Marshal exercises federal authority over persons actually

delivered to the Superior Court for presentment, not over

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everyone the Metropolitan Police Department detains. And

while the District might issue citations for minor offenses such

as traffic violations, arrestees have a right to a presentment

hearing. See D.C. SUPERIOR CT. R. CRIM. P. 5(a); see also

County of Riverside v. McLaughlin, 500 U.S. 44, 53 (1991)

(“[W]arrantless arrests are permitted but persons arrested

without a warrant must promptly be brought before a neutral

magistrate for a judicial determination of probable cause.”

(citing Gerstein v. Pugh, 420 U.S. 103, 114 (1975))).

Because neither the organic nor the entrustment theory

transforms the Superior Court Marshal into a District

policymaker for purposes of section 1983, the District cannot be

held liable for Dillard’s conduct. We thus turn to the question of

Dillard’s liability.

III.

Relying on Bivens v. Six Unknown Named Agents, 403 U.S.

388 (1971), Fourth and Fifth Amendment Class members bring

constitutional tort claims against Dillard in his personal capacity.

In response, Dillard argues that he is entitled to qualified

immunity. While carrying out their official duties, federal

officials enjoy qualified immunity from damages suits in order

to “shield them from undue interference with their duties and

from potentially disabling threats of liability.” Harlow v.

Fitzgerald, 457 U.S. 800, 807 (1982). To overcome a claim of

qualified immunity, plaintiffs must show both that an official

“violated a constitutional right” and that “the right was clearly

established” at the time of the violation. Saucier v. Katz, 533

U.S. 194, 200–01 (2001). The Supreme Court has made clear

that courts may address the two stages of the qualified immunity

analysis in either order. See Pearson v. Callahan, 555 U.S. 223,

236 (2009) (“The judges of the district courts and the courts of

appeals should be permitted to exercise their sound discretion in

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deciding which of the two prongs of the qualified immunity

analysis should be addressed first in light of the circumstances in

the particular case at hand.”). Grateful for that flexibility, we

address the claims of the two classes in turn.

The Fourth Amendment Class

Fourth Amendment Class members urge us to find that “the

Fourth Amendment prohibits blanket strip searches of

[detainees] arrested on minor charges,” at least where no

detainees were held in the general population and “there [is] no

significant contraband problem.” Appellants’ Br. 17, 26–28.

Like the district court, however, we have no need to reach the

merits of this contested constitutional question in order to find

Dillard entitled to qualified immunity. Under our decision in

Bame v. Dillard, 637 F.3d 380, 384 (D.C. Cir. 2011), any Fourth

Amendment right Dillard might have violated was insufficiently

clearly established at the time. See Pearson, 555 U.S. at 237

(approving of addressing only the second stage of the qualified

immunity analysis where “it is plain that a constitutional right is

not clearly established but far from obvious whether in fact there

is such a right”).

In Bame, this Court, addressing only the “clearly

established” stage of the qualified immunity analysis, found

Dillard entitled to qualified immunity for Fourth Amendment

claims brought by male plaintiffs—claims otherwise virtually

indistinguishable from those brought by Fourth Amendment

Class members in this case. Like class members, Bame plaintiffs

were arrested for non-drug, non-violent offenses, held

temporarily at “various police holding facilities,” brought to the

Superior Court “to await disposition of the charges against

them,” “strip searched upon arrival” at the Superior Court

cellblock, placed together in holding cells, and released directly

from the Superior Court cellblock without spending any time in

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general jail populations. Bame, 637 F.3d at 382–83. The strip

searches at issue in Bame occurred in September 2002, near the

end of the Fourth Amendment Class period. Id. at 383.

According to Bame plaintiffs, by the time Dillard had

implemented the challenged policies, the circuits had reached a

“consensus” that policies similar to Dillard’s violated the Fourth

Amendment. See Bame, 637 F.3d at 385. But in Bell v. Wolfish,

441 U.S. 520 (1979), the Supreme Court rejected a Fourth

Amendment challenge to a penal strip search policy and

instructed courts evaluating such challenges to “consider 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. In Bame, we held that Dillard,

balancing these factors, could reasonably have concluded that

his strip search policy was constitutional. Bame, 637 F.3d at 386

(“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 United States Marshals Service policy statements].”).

Although Bame plaintiffs, like class members here, emphasized

that they were charged with minor non-drug, non-violent

offenses, we noted that “[t]he 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.”

Id. at 387 (internal quotation marks omitted). Although Bame

plaintiffs, like class members here, emphasized the short

duration of their stay at the Superior Court cellblock, we

responded that “[c]ontrary to the plaintiffs’ contention, nothing

whatsoever in Bell suggests its holding is limited to overnight

detention facilities.” Id. Although Bame plaintiffs, like class

members here, insisted that they never came into contact with

detainees housed in general jail populations, we emphasized that

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“Bell [nowhere] mention[ed], let alone rel[ied] upon,

[intermingling with other detainees] 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.”

Id. And finally, although Bame plaintiffs, like class members

here, challenged the sufficiency of Dillard’s contraband

justification, we concluded that “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.” Id.

Fourth Amendment Class members attempt to distinguish

Bame in three ways. First, they point to a consent agreement—

the so-called Morgan Order—in which the District promised

“not [to] conduct strip or squat searches of female police cases

housed at the District of Columbia Detention Facility in the

absence of a reasonable suspicion.” See Morgan v. Barry, 596 F.

Supp. 897, 898 (D.D.C. 1984) (explaining the agreement)

(internal quotation marks omitted). According to class members,

this agreement, which protects only female arrestees and thus

was not at issue in Bame, put Dillard on notice that strip

searching class members would violate their Fourth Amendment

rights. In the Morgan Order, however, the District never

concedes that any particular strip search policies violate the

Fourth Amendment. Moreover, the Morgan Order binds only

the District and its agents at the District of Columbia Detention

Facility, not Dillard, a federal official in charge of the Superior

Court cellblock.

Second, Fourth Amendment Class members claim that in

Bame we addressed the constitutionality of strip searches

without “individualized, reasonable suspicion” whereas they

focus on “the right of arrestees, not entering general population,

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to be free from strip searches prior to presentment to the court.”

Appellants’ Br. 70. Contrary to class members’ assertion,

however, in Bame we expressly rejected the notion that Bell

limited penal strip searches to overnight, general population

facilities. See Bame, 637 F.3d at 387.

Third, Fourth Amendment Class members argue that “any

contraband problem that may have existed in the Superior Court

cellblock had evaporated by 1999 or 2000,” Appellants’ Br. 29,

and that the Superior Court Marshal’s failure to strip search all

men belies the asserted effectiveness of strip searches. But in

Bame we evaluated similar evidence of contraband and found

that the Superior Court suffered from a “persistent problem with

contraband” as late as 2002. 637 F.3d at 387. In any event, as the

Supreme Court observed in Bell, a dearth of recovered

contraband “may be more a testament to the effectiveness of this

search technique as a deterrent.” Bell, 441 U.S. at 559. And even

if deputy marshals did not strip search all men, that hardly

compels the conclusion that Dillard understood strip searches to

be generally ineffective.

Thus, like the district court, we see no daylight between the

claims we rejected in Bame and the ones Fourth Amendment

Class members press here. See Johnson, 780 F. Supp. 2d at 74–

75 (“[T]he claims addressed in Bame and the instant case cannot

be distinguished in any meaningful way.”). Although class

members obviously disagree with Bame, that decision is binding

on us. As a result, Dillard is entitled to qualified immunity

because the Fourth Amendment right he is accused of violating

was not clearly established at the time of any violation.

The Fifth Amendment Class

Fifth Amendment Class members maintain that the strip

search gender disparity violated the Fifth Amendment’s equal

16

protection guarantee. We resolve these claims, unlike the claims

of the Fourth Amendment class, at the first stage of the qualified

immunity analysis by examining whether Dillard violated class

members’ Fifth Amendment rights.

The parties agree that Ashcroft v. Iqbal, 556 U.S. 662

(2009), controls this issue. In Iqbal, the Supreme Court

addressed “[t]he factors necessary to establish a Bivens violation

. . . [w]here the claim is invidious discrimination in

contravention of the . . . Fifth Amendment[].” Id. at 676.

Because “purposeful discrimination requires more than ‘intent as

volition or intent as awareness of consequences,’” id. (quoting

Personnel Administrator of Massachusetts v. Feeney, 442 U.S.

256, 279 (1979)), supervisors face no liability for mere

“knowledge and acquiescence in their subordinates’ use of

discriminatory criteria,” id. at 677 (internal quotation marks

omitted). Instead, under Iqbal, plaintiffs must show that

supervisors acted with discriminatory purpose. Id. (“[P]urpose

rather than knowledge is required . . . .”). “[T]he plaintiff must

plausibly plead and eventually prove not only that the official’s

subordinates violated the Constitution, but that the official by

virtue of his own conduct and state of mind did so as well.”

Dodds v. Richardson, 614 F.3d 1185, 1198 (10th Cir. 2010).

Acknowledging that they “must prove Dillard intended to

discriminate against women arrestees,” Fifth Amendment Class

members argue that Dillard “intended a policy, formal or

informal, of women-only strip searches.” Appellants’ Br. 52. For

his part, Dillard insists that his policy throughout the class

period required “every prisoner”—both male and female—to go

through the strip search process upon arrival at the Superior

Court cellblock. See, e.g., Dillard Bame Deposition 89:6–98:3.

Although class members point to some evidence from which we

might infer that Dillard knew deputies were implementing his

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gender neutral policy in a gender imbalanced manner, plenty of

other evidence suggests that Dillard was largely missing in

action throughout the class period. But even assuming class

members could show that Dillard knew what was going on at the

cellblock, they have pointed to no evidence from which we

could infer that Dillard himself intended to treat women

differently from men. For instance, class members cite a former

deputy marshal’s testimony that the practice in the cellblock was

to strip search all female detainees but not all males because of

certain “differences in the anatomy.” Shealey Deposition 158:8–

162:22. But that same former deputy went on to testify that any

disparate treatment did not reflect Dillard’s policy:

“[Supervisors] put [no] emphasis on females. They basically

[made] sure that everybody was thoroughly searched coming

into that cell block, and that we had policies and procedures in

place to conduct those searches to make sure that no contraband

came into those cell blocks.” Shealey Deposition 164:7–13. This

is hardly an isolated example. Indeed, class members cite no

testimony by any subordinate indicating that the gender disparity

resulted from Dillard’s instruction or intention.

Class members also claim that the United States Marshals

Service admitted in interrogatory responses in two other cases

that despite Dillard’s assertions “the ‘more customized’ policy

was to stop strip searching males and to continue strip searching

females.” Appellants’ Br. 60. But these responses, both written

by the same deputy marshal who testified that supervisors “put

[no] emphasis on females,” describe the “practice” among

deputies at the cellblock, not Dillard’s policies. Helton

Interrogatory Response 4; Clifton Interrogatory Response 5.

In a final effort to demonstrate discriminatory purpose, class

members ask us to grant them an adverse inference from missing

evidence. Specifically, they claim that although Dillard prepared

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a written policy statement during the class period laying out

Superior Court operating procedures, he failed to produce a copy

during discovery. “Because defendant never acknowledged or

produced Dillard’s written search policy,” class members assert,

“plaintiffs are entitled to an adverse inference that the policy was

to strip search all female prisoners but not males.” Appellants’

Br. 58. Dillard, however, has not only consistently denied the

existence of any undisclosed policy statement but has also

maintained that he left behind all official documents at the end

of his term as Superior Court Marshal because “they were

government property.” Dillard Br. 65. Even assuming an

undisclosed policy statement once existed, an adverse inference

from missing evidence is appropriate only “if it is peculiarly

within the power of one party to produce the evidence . . . . The

party complaining of the missing evidence bears the burden of

demonstrating that it is peculiarly in the opposing party’s

control.” Czekalski v. LaHood, 589 F.3d 449, 455 (D.C. Cir.

2009) (internal quotation marks omitted). Since class members

nowhere dispute Dillard’s explanation for why he left behind all

official documents, they have failed to show that the policy

statement was ever “peculiarly within [Dillard’s] power . . . to

produce” or “peculiarly in [Dillard’s] control.” Id.

We thus agree with the district court that “there is no

circumstantial or direct evidence that Marshal Dillard

purposefully directed that women and men be searched

differently at the Superior Court cellblock.” Johnson, 780 F.

Supp. 2d at 81. Under Iqbal, then, Dillard is entitled to qualified

immunity because class members have failed to show that he

violated their Fifth Amendment rights.

19

IV.

For the foregoing reasons, we affirm.

So ordered.

ROGERS, Circuit Judge, concurring in part and concurring

in the judgment. I write principally because this court, as in ten

other circuits, should “clearly establish[],” Harlow v. Fitzgerald,

457 U.S. 800, 818–19 (1982), that indiscriminate strip searching

of individuals awaiting presentment on non-violent, non-drug

offenses who are not held in the general population is

unconstitutional under the Fourth Amendment to the United

States Constitution in the absence of reasonable suspicion an

individual possesses contraband or weapons. See Bame v.

Dillard, 637 F.3d 380, 388 (D.C. Cir. 2011) (Rogers, J.,

dissenting).

I.

In the absence of en banc review, Bame, 637 F.3d 380, is

the law of the circuit, see LaShawn A. v. Barry, 87 F.3d 1389,

1395 (D.C. Cir. 1996) (en banc). In Bame, the court applied the

doctrine of constitutional avoidance and did not decide whether

a Fourth Amendment violation occurred. See Bame, 637 F.3d

at 384 (citing Pearson v. Callahan, 555 U.S. 223 (2009)); cf.

Op. at 12. Since Bame was decided the Supreme Court in

Camreta v. Greene, ––– U.S. –––, 131 S. Ct. 2020 (2011), has

underscored the undesirability of the “flexibility,” Op. at 12,

afforded to courts under Pearson v. Callahan to avoid deciding

whether a constitutional violation has occurred where the

defendant is entitled to qualified immunity. Not deciding the

constitutional question “threatens to leave standards of official

conduct permanently in limbo.” Camreta, 131 S. Ct. at 2031.

By proceeding directly to the immunity question, not only do

“[c]ourts fail to clarify uncertain questions, fail to address novel

claims, fail to give guidance to officials about how to comply

with legal requirements,” id., but the failure to decide

constitutional questions “may frustrate ‘the development of

constitutional precedent’ and the promotion of law-abiding

behavior,” id. (quoting Pearson, 555 U.S. at 237).

2

Also since Bame, six Justices of the Supreme Court have

expressed unease with the type of indiscriminate strip searching

engaged in by the Superior Court Marshal’s Office that is

challenged here and was challenged in Bame. See Florence v.

Bd. of Chosen Freeholders of Cnty. of Burlington, ––– U.S. –––,

132 S. Ct. 1510, 1523 (2012) (Roberts, CJ., concurring); id. at

1524 (Alito, J., concurring); id. at 1525 (Breyer, J., joined by

Ginsburg, Sotomayor, and Kagan, JJ., dissenting). The Supreme

Court’s expression of unease is not new, appearing even in the

context of post-arraignment defendants held in the general

prison population. See Bell v. Wolfish, 441 U.S. 520, 558 (1979)

(“[T]his practice instinctively gives us the most pause.”).

Nearly every other circuit court of appeals (and the District

of Columbia’s highest court, see United States v. Scott, 987 A.2d

1180, 1196–97 (D.C. 2010)) has understood that the humiliating

and essentially non-productive practice of strip searching pre-

arraignment arrestees not held in the general population is an

unreasonable search under the Fourth Amendment in the

absence of reasonable suspicion. See Bame, 637 F.3d at 391–92,

395 (Rogers, J., dissenting) (citing cases from the First, Second,

Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, and Eleventh

Circuit Courts of Appeals); see Powell v. Barrett, 541 F.3d

1298, 1300–02 (11th Cir. 2008) (en banc); Bull v. City and Cnty.

of San Francisco, 595 F.3d 964, 980–81 (9th Cir. 2010) (en

banc). The Third Circuit has yet to address the issue, rejecting

only a Fourth Amendment challenge to blanket strip searches

upon arrestees admission to the general jail population. See

Florence v. Bd. of Chosen Freeholders of Cnty. of Burlington,

621 F.3d 296, 298–99, 311 (3d Cir. 2010). Evidence before the

courts and in the instant case confirms that modern technology

and law enforcement experience have shown that indiscriminate

strip searching of non-violent, non-drug pre-arraignment

arrestees after the use of metal detectors and patdowns to locate

contraband rarely yields additional security benefits. See, e.g.,

3

Roberts v. State of R.I., 239 F.3d 107, 112 (1st Cir. 2001); see id.

(citing cf. Mary Beth G. v. City of Chicago, 723 F.3d 1263,

1272–73 (7th Cir. 1983)); Appellants’ Ex. 410 (compiling

incident reports). Contrary court findings involve the prison

environment where smuggling of contraband “is all too common

an occurrence” and deference is due to the policy judgments of

prison administrators. Bell v. Wolfish, 441 U.S. at 559; see also

Florence, 621 F.3d at 310.

Members of the Fourth Amendment class here were not

being held in the general population with post-arraignment

arrestees and strip searches in their circumstances illustrate one

aspect of the Justices’ unease in Florence, 132 S. Ct. at 1523,

1524, 1525. Applying the canon of constitutional avoidance in

this circuit is unwarranted, particularly in view of the recurring

court challenges to indiscriminate strip searching by the U.S.

Marshals Service in the Nation’s Capital, the frequent situs of

demonstrations as in Bame. See Helton v. United States, 191 F.

Supp. 2d 179 (D.D.C. 2002); Clifton v. United States, No. 02-

0578 (D.D.C. Mar. 26, 2002); see also Morgan v. Dist. of

Columbia, No. 81-1419 (D.D.C. July 22, 1981), applied in

Morgan v. Barry, 596 F. Supp. 897, 898–99 (D.D.C. 1984). The

United States advises that the U.S. Marshals Service has

abandoned the challenged strip searching policy and practice.

See Appellee Dillard Br. 59 n.17; Op. at 2. This does not ensure

that the practice will not be revived, much less provide guidance

for new policies and practices, promote law-abiding behavior,

or justify the court in not “clearly establish[ing]” that the Fourth

Amendment rights of the appellant class were violated by the

Superior Court Marshal. Joining the ten other circuit courts of

appeals, I would hold that the indiscriminate strip searching of

the Fourth Amendment class in the absence of reasonable

suspicion violated the Fourth Amendment.

4

II.

Otherwise, I generally agree that appellants’ claims fail.

A. The Superior Court Marshal is a federal official who

was acting under color of federal law, and the District of

Columbia cannot be held liable for the challenged actions of

Marshal Dillard. Op. at 9.

Somewhat less persuasive is the District of Columbia’s

suggestion that it “had no choice,” Appellee D.C. Br. 41, not to

turn over to the Superior Court Marshal for presentment

individuals arrested by the Metropolitan Police Department,

regardless of whether the Marshal’s strip searching practices

violated the Fourth Amendment rights of non-violent, non-drug

pre-arraignment arrestees. The District of Columbia can sue as

well as be sued, see D.C. Code § 1-102, and can seek the aid of

the courts to protect individuals in its custody. Appellants point

to the District of Columbia’s obligation to ensure the

enforcement of the order in Morgan v. Barry, 596 F. Supp. 897,

898 (D.D.C. 1984), that barred its own officers from strip

searching female arrestees housed at the District of Columbia

Detention Facility in the absence of a “reasonable suspicion that

a weapon, contraband or evidence of a crime are concealed on

the person or in the clothing of the arrestee which the District [of

Columbia] or its agents reasonably believe can only be

discovered by a strip or squat search.” Cf. Washington v. United

States, 594 A.2d 1050, 1052 (D.C. 1991) (quoting MPD Gen.

Order 502.1, Processing Prisoners 3, § B(5) barring body cavity

searches of arrestees by police officers). The District of

Columbia did not seek such aid on behalf of the Fourth

Amendment class, but at the time there was neither an

outstanding order with respect to the Superior Court Marshal,

nor a decision by this court (or the D.C. Court of Appeals),

“clearly establish[ing]” that blanket strip searching of pre-

5

arraignment arrestees like the Fourth Amendment class is

unreasonable and a violation of the Fourth Amendment.

B. With regard to the constitutional challenges, because

Bame, 637 F.3d at 386, is the law of the circuit Marshal Dillard

is entitled to qualified immunity on the Fourth Amendment

claims. Op. at 12. Given appellants’ agreement that Ashcroft v.

Iqbal, 556 U.S. 662 (2009), is controlling at the summary

judgment stage of the proceedings, Op. at 16, the Fifth

Amendment claims fail for lack of evidence of a constitutional

violation. Op. at 18.

In that regard, the court observes that Marshal Dillard was

“largely missing in action throughout the class period.” Op. at

16. Although Dillard agreed that there was no reason to treat

male and female arrestees differently, see Dillard Dep. 77:1–7,

on his watch his deputies indiscriminately strip searched only

women. Op. at 3. Summary judgment presents no occasion for

the court to weigh the evidence. See Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 255 (1986). A reasonable jury could

find that knowing acquiescence to continuing violations of a

plaintiff’s Equal Protection rights by one’s deputies amounts to

purposeful conduct and infer, in the absence of a legitimate non-

invidious reason for treating women differently than men, a

defendant’s discriminatory purpose. Cf. Vill. of Arlington

Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266–67

(1977); cf. also Primas v. Dist. of Columbia, 719 F.3d 693,

697–98 (D.C. Cir. 2013); Evans v. Sebelius, 716 F.3d 617,

620–22 (D.C. Cir. 2013). Dillard repeatedly swore, however,

that he believed men and women were being strip searched in

the same manner, see Dillard Dep. 96:10–97:8, 99:8–101:12,

and the Fifth Amendment class fails to proffer evidence from

which a reasonable jury could find that he had a women-only

strip search policy or knew of the disparate treatment by his

deputies. Op. at 16–18. Absent evidence that Dillard either had

6

a blanket policy for strip searching only female arrestees, or

knew that his deputies were doing so indiscriminately and did

nothing to stop them, a discriminatory purpose by Dillard cannot

reasonably be inferred.