Dianna Johnson v. Government of the DC

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Filed: August 1, 2014

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)

On Petition for Rehearing En Banc

______

Before: GARLAND, Chief Judge, HENDERSON, ROGERS*,

TATEL, BROWN, GRIFFITH, KAVANAUGH, SRINIVASAN,

MILLETT*, PILLARD*, AND WILKINS*, Circuit Judges.

2

ORDER

Appellants’ petition for rehearing en banc and the responses

thereto were circulated to the full court, and a vote was

requested. Thereafter, a majority of the judges eligible to

participate did not vote in favor of the petition. Upon

consideration of the foregoing, it is

ORDERED that the petition be denied.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

BY: /s/

Jennifer M. Clark

Deputy Clerk

*Circuit Judges Millett and Wilkins did not participate in this

matter.

*Circuit Judge Rogers would grant the petition for rehearing en

banc.

*A statement by Circuit Judge Pillard, concurring in the denial

of rehearing en banc, is attached.

*A statement by Circuit Judge Rogers, dissenting from the

denial of rehearing en banc, is attached.

PILLARD, Circuit Judge, concurring in the denial of

rehearing en banc: This case was brought by a plaintiff class

of approximately 1,600 women arrested between 1999 and

2003 in the District of Columbia for non-violent, non-drug

minor offenses (such as traffic stops) who were held briefly at

the D.C. Superior Court cellblock. Each of these women was

subject to a visual body-cavity strip search pending her

appearance before a judge or magistrate. The plaintiffs seek

rehearing en banc of the panel decision dismissing their

Fourth Amendment Bivens claims. Those claims challenge

the practice of the former U.S. Marshal for the D.C. Superior

Court of conducting pre-arraignment body-cavity searches of

women, but not men, without any warrant or even

individualized suspicion that the women were carrying

contraband in their body cavities. Our court, in Bame v.

Dillard, 637 F.3d 380 (D.C. Cir. 2011), and in this case

following Bame, held that any constitutional rights the

Marshal may have violated were not clearly established,

entitling him to qualified immunity. Plaintiffs challenge the

panel decision as erroneous and in conflict with Bell v.

Wolfish, 441 U.S. 520 (1979), and Florence v. Board of

Chosen Freeholders, 132 S. Ct. 1510 (2012), and as contrary

to the consensus of every other circuit to have addressed the

issue of the constitutionality of the type of suspicionless

body-cavity searches in this case.

Despite the importance of the constitutional question, I

concur in the decision to deny en banc review. This is a suit

for damages, but prospective factors also enter our

consideration whether to grant review. The U.S. Marshal for

the D.C. Superior Court has ceased the challenged practice of

routine, suspicionless visual body-cavity searches of female

arrestees, thereby limiting the practical importance of the

panel’s holding. See Fed. R. App. P. 35(a). In following this

court’s prior decision in Bame, 637 F.3d 380, as it was bound

to do, the panel decision—insofar as it goes—replicates a

context-specific legal error limited to the qualified immunity

2

issue, which has not otherwise been repeated in this Circuit. I

write briefly to explain why I believe that the decision in

Bame, and thus Johnson, is wrong and should not be taken to

suggest that qualified immunity would be available were the

Superior Court Marshal to resurrect the challenged practice.

I.

The visual body-cavity search policy and practice

challenged in both Bame and this case has been abandoned by

the Superior Court Marshal, who agreed under pressure of

litigation to conform his conduct to the U.S. Marshals Service

policy, see Oral Arg. Rec. at 57:26-59:60, Johnson v. District

of Columbia, 734 F.3d 1194 (D.C. Cir. 2013) (No. 11-5115),

which requires reasonable suspicion before any strip search.1

Other incarcerating authorities in our Circuit also require

reasonable suspicion for body-cavity searches. For example,

the Bureau of Prisons forbids suspicionless visual body-cavity

searches of persons arrested for misdemeanors or held in civil

contempt, and requires that such arrestees be held separately

from the general prison population. See Florence, 132 S. Ct.

at 1524 (Alito, J., concurring) (citing Br. for the United States

as Amicus Curiae Supporting Respondents at 30, Florence,

132 S. Ct. 1510 (No. 10-945), 2011 WL 3821404). Both

1

See Br. for Federal Appellee at 59 n.17, Johnson, 734 F.3d 1194

(No. 11-5115), 2013 WL 621948; U.S. Marshals Serv., Policy

Directives – Prisoner Operations, Prisoner Custody – Body

Searches § 9.1(E)(3) (2010), http://www.usmarshals.gov/foia/

directives/prisoner_ops/body_searches.pdf (“Strip searches on

prisoners in custody are authorized 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.”); U.S. Marshals Serv., Policy Directive No. 99-25 (1999)

(same).

3

Immigration and Customs Enforcement and the Bureau of

Indian Affairs also require reasonable suspicion before visual

body-cavity searches.2 The restraint codified in those policies

makes good sense. Strip searches are a particularly severe

and degrading form of search. They are imposed at grave

human cost, even when they are constitutionally justified.

The searches at issue in this case, although sometimes

referred to by the shorthand “strip search,” were of a

particularly invasive type, involving close visual scrutiny of

arrestees’ body cavities. Johnson, 734 F.3d at 1197. The

term “strip search” can be an umbrella term, used in judicial

decisions and elsewhere to refer to various types of searches

of varying intrusiveness. See Florence, 132 S. Ct. at 1515

(noting that “[t]he term is imprecise”). This case involves

practices far more intrusive than naked shower “strip

searches” of incoming groups of inmates, in which guards

stand several yards back to supervise lice shampoo

application and check for wounds or gang tattoos before

convicts enter prison. See generally Tr. of Oral Arg. at 16:13-

17:3, Florence, 132 S. Ct. 1510 (No. 10-945) (counsel for

Florence) (distinguishing such practices as more readily

justified). The policy challenged here, in contrast, required

plaintiffs to remove their clothing, squat to expose their

vaginas, and cough in order to dislodge anything they might

be hiding inside while officials, looking for potential

2

See Immigration and Customs Enforcement (ICE), Performance-

Based National Detention Standards 2011, at § 2.10, at 142 (2013),

available at http://www.ice.gov/detention-standards/2011; Office of

Justice Servs., Bureau of Indian Affairs, BIA Adult Detention

Facility Guidelines (Draft), at 22-23 (2010), available at

http://www.niccsa.org/downloads/TLOA/BIAADULTDETENTIO

NFACILITYGUIDELINES.pdf.

4

contraband, individually scrutinized plaintiffs’ genitalia at

approximately arms’ length. See Johnson, 734 F.3d at 1197.

Official policy demanding that a person strip naked and

crouch or bend to expose her vagina or anus for prison

personnel’s close inspection is a humiliating invasion that

offends bodily autonomy and may cause lasting psychological

harm. See Florence, 132 S. Ct. at 1524 (Alito, J., concurring)

(“Undergoing such an inspection is undoubtedly humiliating

and deeply offensive to many . . . .”); Bell, 441 U.S. at 558

(“Admittedly, this practice instinctively gives us the most

pause.”); id. at 563 (Powell, J., concurring in part and

dissenting in part) (“In view of the serious intrusion on one’s

privacy occasioned by [a body-cavity search], I think at least

some level of cause, such as a reasonable suspicion, should be

required to justify the anal and genital searches described in

this case.”). The Seventh Circuit has described such searches

as “demeaning, dehumanizing, undignified, humiliating,

terrifying, unpleasant, embarrassing, repulsive, signifying

degradation and submission,” explaining that “few exercises

of authority by the state . . . intrude on the citizen’s privacy

and dignity as severely as the visual anal and genital searches

practiced here.” Mary Beth G. v. City of Chicago, 723 F.2d

1263, 1272 (7th Cir. 1983) (citation and quotation marks

omitted); see generally Br. for Psychiatrists as Amici Curiae

in Support of Petitioner, Florence, 132 S. Ct. 1510 (No. 10-

945), 2011 WL 2593462 (describing the severe, often lasting

psychological harm to individuals’ sense of self from

mandated strip searches of body parts that, from an early age,

we most privately and consistently conceal from strangers). It

may be hoped, therefore, that the policy decisions of District

of Columbia and federal officials have put an end to the kind

of practice challenged in this case without further litigation.

5

II.

Another factor that counsels against en banc review is

that neither Johnson nor Bame made an error of constitutional

dimension; the decision in each case rests only on the law’s

putative lack of clarity to dismiss the claims as barred by

qualified immunity. Sometimes constitutional avoidance is

the preferable path in these circumstances. See Pearson v.

Callahan, 555 U.S. 223, 236-39 (2009) (discussing factors

that may make litigation over the constitutional question

unnecessary or ill-advised). The Supreme Court, however,

recognizes a special exception to the constitutional avoidance

rule for qualified immunity cases. That exception assures that

development of constitutional precedent is not delayed in

doctrinal areas where qualified immunity is frequently

dispositive. See Plumhoff v. Rickard, 134 S. Ct. 2012, 2020

(2014) (addressing the constitutional merits first to aid in

“‘develop[ing] constitutional precedent’ in an area that courts

typically consider in cases in which the defendant asserts a

qualified immunity defense” (brackets in original) (quoting

Pearson, 555 U.S. at 236)). The Court has emphasized that

addressing the merits of the constitutional claim “is often

beneficial,” even in cases decided on the ground that the law

is not clearly established. Pearson, 555 U.S. at 236; see also

Camreta v. Greene, 131 S. Ct. 2020, 2032 (2011). This court

accordingly has discretion to decide which of the two prongs

in a qualified immunity case should be addressed first:

whether the asserted constitutional right exists in the context

of the particular case, or whether any such right was

sufficiently clearly established at the time of the challenged

conduct to overcome qualified immunity. The panels’

decisions in Bame and this case to avoid the merits of the

Fourth Amendment question and decide only on grounds of

legal unclarity limits the impact of the panel decision, and so

further diminishes the need for rehearing en banc.

6

But the choice to avoid the merits question in Bame,

followed here, was not without cost. It took us another step

down the very path the Supreme Court has warned against, by

“fail[ing] to give guidance to officials about how to comply

with legal requirements.” Camreta, 131 S. Ct. at 2031. Two

panels of our court have held that no clearly established law

requires even individualized suspicion before imposing visual

body-cavity searches on arrestees held temporarily in holding

cells outside the arraignment courtrooms at the D.C. Superior

Court. Johnson, 734 F.3d at 1204 (citing Bame, 637 F.3d

380). Given the Superior Court Marshal’s persistence in

using these degrading searches, a decision in Bame on the

constitutional merits would have provided useful guidance.

The Superior Court Marshal imposed a blanket, suspicionless

strip-search policy despite the U.S. Marshals Service policy’s

reasonable suspicion requirement, see supra note 1, which

was binding on him as a federal official. The Marshal instead

mistakenly and unlawfully, going back to at least the early

1980s, conducted blanket strip searches in the face of repeated

constitutional challenges. 3 Avoidance of litigation risk—

rather than any determination that the policy was either

inappropriately intrusive or unconstitutional—appears to have

motivated the Superior Court Marshal’s abandonment of the

strip-search policy challenged here. See, e.g., Oral Arg. Rec.

at 57:26-59:50, Johnson, 734 F.3d 1194 (No. 11-5115). By

repeatedly bypassing the merits of the constitutional

3

Bame v. Dillard, 647 F. Supp. 2d 43, 51-52 (D.D.C. 2009)

(explaining Marshal Dillard’s practice of routinely performing

“strip searches of all detained arrestees during the entire

thirteen years he was Marshal”); see, e.g., Morgan v. Barry,

596 F. Supp. 897, 899 (D.D.C. 1984) (referring to consent

order requiring reasonable suspicion for visual body-cavity

searches).

7

challenge, the panel decisions fail to promote law-abiding

behavior and could be construed to countenance violations.

See Camreta, 131 S. Ct. at 2031. Accordingly, because a

decision based on qualified immunity alone provides

equivocal constraint and because, in my view, the Marshal’s

policy violated plaintiffs’ Fourth Amendment rights, I believe

the Bame panel should, at a minimum, have announced the

constitutional rule before any conclusion that the prohibition

was not clearly established. Such a decision would have

erected a firmer barrier against the reinstatement of these

search practices.

Moreover, in my view, the challenged visual body-cavity

searches were clearly unconstitutional at the time they were

conducted, and remain so today. The Fourth Amendment

protects the people from “unreasonable searches,” shielding

our bodily privacy from warrantless searches with only “a few

specifically established and well-delineated exceptions.” Katz

v. United States, 389 U.S. 347, 357 (1967); see Riley v.

California, Nos. 13-132, 13-212, 2014 WL 2864483, at *6

(U.S. June 25, 2014) (“In the absence of a warrant, a search is

reasonable only if it falls within a specific exception to the

warrant requirement.”). Bame relied on the exception

established in Bell, which the Court affirmed in Florence, but

no circuit has ever applied those decisions’ approval of

blanket search policies of persons entering general prison

populations to detainees like plaintiffs here, who were held

apart from any general population of prisoners.

The Supreme Court in Bell sustained a policy of strip

searching everyone in a mixed correctional facility population

immediately after voluntary, loosely monitored contact visits.

See 441 U.S. at 524-26, 559 & n.40. The Metropolitan

Correctional Center in Bell—a “unique place fraught with

serious security dangers”—jointly housed pretrial detainees

8

with convicted prisoners. Id. at 524, 559. The Court’s most

recent approval of strip-search policies in Florence, in the

context of searching an arrestee entering general prison

populations at two large facilities, rejected a proposed

exception for minor, non-violent offenders from otherwise

blanket policies requiring visual body-cavity searches.

Florence, 132 S. Ct. at 1520. But eight justices agreed that

the Court was not approving the constitutionality of strip

searching arrestees held apart from the general prison

population.4 Thus, Bell did not reach the distinct question of

the constitutionality of searching arrestees in this particularly

4

See Florence, 132 S. Ct. at 1522-23 (plurality opinion) (Kennedy,

J., joined by Roberts, C.J., Scalia & Alito, JJ.) (“This case does not

require the Court to rule on the types of searches that would be

reasonable in instances where, for example, a detainee will be held

without assignment to the general jail population and without

substantial contact with other detainees.”); id. at 1523 (Roberts,

C.J., concurring) (reiterating that, “[a]s with Justice Alito, . . . it is

important for me that the Court does not foreclose the possibility of

an exception to the rule it announces,” and emphasizing that

Florence was detained pursuant to an arrest warrant and that “there

was apparently no alternative . . . to holding him in the general jail

population”); id. at 1524 (Alito, J., concurring) (“I join the opinion

of the Court but emphasize the limits of today’s holding. The Court

holds that jail administrators may require all arrestees who are

committed to the general population of a jail to undergo visual strip

searches not involving physical contact by corrections officers.”

(emphasis in original)); see also id. at 1532 (Breyer, J., joined by

Ginsburg, Sotomayor, & Kagan, JJ., dissenting) (“[I]t remains open

for the Court to consider whether it would be reasonable to admit

an arrestee for a minor offense to the general jail population, and to

subject her to the humiliation of a strip search, prior to any review

by a judicial officer.” (quotation marks omitted)).

9

intrusive manner when they are held apart from the general

population, and Florence is expressly limited on that point.

Meanwhile, in the decades after Bell, ten federal courts of

appeals held that persons arrested for minor, non-drug, non-

violent offenses who were not introduced into the general

prison population could not be subjected to invasive strip

searches without reasonable suspicion. See Roberts v. Rhode

Island, 239 F.3d 107, 112-13 (1st Cir. 2001); Weber v. Dell,

804 F.2d 796, 802 (2d Cir. 1986); Logan v. Shealy, 660 F.2d

1007, 1013 (4th Cir. 1981); Stewart v. Lubbock Cty. Tex., 767

F.2d 153, 156-57 (5th Cir. 1985); Masters v. Crouch, 872

F.2d 1248, 1255 (6th Cir. 1989);5 Mary Beth G., 723 F.2d at

1272-73; Jones v. Edwards, 770 F.2d 739, 742 (8th Cir.

1985); Giles v. Ackerman, 746 F.2d 614, 616-18 (9th Cir.

1984) (per curiam);6 Hill v. Bogans, 735 F.2d 391, 394 (10th

Cir. 1984); Wilson v. Jones, 251 F.3d 1340, 1343 (11th Cir.

2001). 7 Florence abrogated some of those decisions to the

extent they required that persons arrested on minor offenses

5

But see T.S. v. Doe, 742 F.3d 632, 636-37 (6th Cir. 2014)

(abrogating Masters in light of Florence). T.S. v. Doe does not,

however, address Florence’s express reservation of decision on the

ground relied on here: that plaintiffs were not introduced into the

general prison population with its attendant heightened security

concerns.

6

But cf. Bull v. City and Cnty. of San Francisco, 595 F.3d 964, 977

(9th Cir. 2010) (en banc) (abrogating Giles, but only to the extent

that detainees were to enter the general prison population).

7

But cf. Powell v. Barrett, 541 F.3d 1298, 1307, 1314 (11th Cir.

2008) (en banc) (abrogating Wilson in context of detainees being

booked into the general population of the detention facility).

10

be excepted from blanket strip searches even when they were

entering a general prison population; Florence did not,

however, disturb recognized Fourth Amendment restrictions

against such searches of persons held apart from the general

prison population.

Notably, no circuit has sustained a blanket policy of strip

searching arrestees who are not introduced into a general

prison population. The circuit decisions cited in Dillard’s

brief that sustained strip searches are no exception. See Bull

v. City & County of San Francisco, 595 F.3d 964 (9th Cir.

2010) (en banc); Powell v. Barrett, 541 F.3d 1298 (11th Cir.

2008) (en banc). Powell involved detainees being booked

into the general population of the detention facility, 541 F.3d

at 1302; it provides no authority for suspicionless strip

searches of the Superior Court arrestees in this case. And Bull

emphasized that its approval of suspicionless strip searches

“applies only to detainees classified to enter the general

corrections facility population.” 595 F.3d at 981 n.17. There

is simply no case from any circuit authorizing what the

Marshal did here. It thus remains clear under the Fourth

Amendment that the searches in both Bame and Johnson of

persons not held in the general population of any prison

cannot be justified without at least individualized suspicion.

Marshal Dillard nonetheless contends that Florence

applies here despite the Supreme Court’s limitation of its

holding to persons intermingled with the general prison

population, on the ground that the plaintiffs “were in what

was viewed in Superior Court as general population.” Todd

Dillard’s Opp’n to Rehearing and Rehearing En Banc at 7,

Johnson, 734 F.3d 1194 (No. 11-5115). It was, however,

undisputed that the class members in this case were not held

in a general prison population, but were released “without

spending any time in general jail populations.” Johnson, 734

11

F.3d at 1202 (citing Bame, 637 F.3d at 382-83). The District

Court specifically distinguished the factual scenarios in

Florence, Bull, and Powell as involving prisoners who “were

about to be entered into, or co-mingled with, a general jail or

detention facility population” whereas this case involved

Superior Court arrestees, most of whom “were only held

temporarily at the D.C. Superior Court and then either

released from the courtroom the same day or transferred to the

D.C. Jail.” Johnson v. District of Columbia, 780 F. Supp. 2d

62, 74 (D.D.C. 2011); see also Bame v. Dillard, 647 F. Supp.

2d 43, 49 (D.D.C. 2009) (noting that the plaintiffs “were

placed in holding cells again, exclusively with one another.

They were not commingled with the general inmate

population.”); id. at 53 (plaintiffs were “held together at all

times and not commingled with the general inmate

population”). Indeed, as we recognized, “[r]oughly eighty

percent of female arrestees were released following

[arraignment] hearings” and thus never were sent to the

general population at the D.C. Jail. Johnson, 734 F.3d at

1197. That fact clearly and materially distinguishes Bame and

this case from those that Dillard cites.

Our constitutional protections against visual body-cavity

searches, though narrow, are far from insignificant. When we

bear in mind the breadth of the government’s constitutional

latitude to search people in the interests of safety, the

importance of those limits the Constitution does impose is

even more vivid. The Fourth Amendment permits a

warrantless arrest whenever an officer has probable cause to

believe a person has committed a criminal offense, no matter

how minor, Atwater v. City of Lago Vista, 532 U.S. 318, 354

(2001), and deference to prison security permits blanket

visual body-cavity strip searches of detainees placed in the

general prison population, Florence, 132 S. Ct. at 1522-23.

But the government’s power to search our bodies is not

12

unlimited. Security concerns regarding arrestees held at the

Superior Court cellblock while they wait to appear in court,

all of whom are innocent until proven guilty, cannot be

equated with the challenges of managing a prison population

of convicted prisoners or persons awaiting trial but judicially

determined unsafe for release on bail. Searching body

cavities of presumptively non-dangerous arrestees to prevent

them from carrying contraband to a presumptively dangerous

general jail population is a security rationale that wanes when

such arrestees are—as they reasonably should be—segregated

from other prisoners. Bell and Florence’s approval of strip

searches in the former context does not justify their approval

in the latter context, as every circuit to address the issue, other

than ours, has recognized.

III.

In any event, the panel’s decision that the law was

unclear should not be understood to leave the door open to

future suspicionless body-cavity searches at the Superior

Court. The panel in this case was bound by Bame’s qualified

immunity analysis. Johnson, 734 F.3d at 1204 (commenting

that there was “no daylight between the claims we rejected in

Bame and the ones Fourth Amendment Class members press

here”). Thus, the error of Bame’s application of qualified

immunity (followed by the panel in this case) warrants

explication.

In general terms, Bame correctly stated that law

enforcement officials are entitled to rely on Supreme Court

precedent, so that “when a precedent of the Supreme Court

supports the lawfulness” of an official’s conduct, “a

consensus among the courts of appeals” to the contrary cannot

vitiate qualified immunity. 637 F.3d at 386. Bame—and

hence Johnson—held that the challenged policy was not

13

clearly unconstitutional because the Supreme Court had

approved a blanket strip-search policy in Bell. Bame erred,

however, in reading the Supreme Court’s decision in Bell to

“support[] the lawfulness” of the Marshal’s visual body-

cavity searches. See id. Whether an official has violated law

that is “clearly established,” and so renders qualified

immunity unavailable, “depends substantially upon the level

of generality at which the relevant ‘legal rule’ is to be

identified.” Anderson v. Creighton, 483 U.S. 635, 639

(1987). The qualified immunity inquiry, the Supreme Court

has emphasized, “must be undertaken in light of the specific

context of the case, not as a broad general proposition.”

Saucier v. Katz, 533 U.S. 194, 201 (2001). What matters is

applicable precedent governing the right “in a more

particularized, and hence more relevant, sense.” Anderson,

483 U.S. at 640. Just as a plaintiff cannot assert that a right is

clearly established by framing his claim at a very high level of

generality (“the Fourth Amendment is clearly established”),

so, too, an official cannot sidestep a consensus of factually

particular and thus more closely analogous circuit cases (“the

Fourth Amendment bars blanket suspicionless strip searches

of arrestees held apart from the general prison population”) by

adverting to a Supreme Court case involving a factually

different problem, and simply redescribing it at a higher level

of generality (“blanket strip searches of detainees are

constitutional”). Correct application of Bell, the Court’s more

recent decision in Florence, and the persuasive and

unanimous circuit authority is contrary to Bame’s qualified

immunity analysis. See supra Part II.

Bell established the general balancing test that courts

must apply when considering the constitutionality of a strip

search, 441 U.S. at 559, but neither Bell nor Florence

authorizes blanket strip-search policies in every detention

context. The critical difference between the policies sustained

14

in Bell and Florence and the policy challenged in Bame and

this case is that, here, the plaintiffs were not entering any

general prison population. The limited exceptions charted by

Bell and Florence to the Fourth Amendment’s requirement of

individualized justification for searches, in addition to the

holdings of the circuits that applied the Bell balancing test to

invalidate blanket, suspicionless strip searches of arrestees not

held in general prison populations, should have more than

sufficed to form “a consensus of cases of persuasive

authority” vitiating qualified immunity here. See Wilson v.

Layne, 526 U.S. 603, 617 (1999).

In the abstract, however, Johnson’s articulation of the

qualified immunity standard is consistent with Supreme Court

and this court’s precedent. Johnson, 734 F.3d at 1201-02; see

also Bame, 637 F.3d at 384 (stating that, to determine

qualified immunity, “we look to cases from the Supreme

Court and this court, as well as to cases from other courts

exhibiting a consensus view—if there is one” (citation and

quotation marks omitted)). Because this court’s qualified

immunity error was in application rather than articulation of

the standard, and because the panel did not uphold as

constitutional the invasive—and in my view

unconstitutional—practices at issue here, I join in concluding

that the panel decision does not present the extraordinary

circumstances warranting en banc review.

ROGERS, Circuit Judge, dissenting from the denial of

rehearing en banc: The Supreme Court has emphasized that the

“regular policy” of constitutional avoidance in aid of judicial

restraint “sometimes does not fit the qualified immunity

situation because it threatens to leave standards of official

conduct permanently in limbo.” Camreta v. Greene, 131 S. Ct.

2020, 2031 (2011). This case illustrates that concern. All ten of

the circuit courts of appeal to address the Fourth Amendment

issue have held for over a decade that strip searching individuals

arrested for non-violent, non-drug offenses who have not yet

appeared before a judicial officer and will not enter into the

general detained population is unconstitutional in the absence of

reasonable suspicion they are carrying contraband. See Bame,

et al. v. Dillard, 637 F.3d 380, 391–92, 395 (D.C. Cir. 2011)

(Rogers, J., dissenting) (citing cases). So have the federal

district court here, see Doe v. Berberich, 704 F. Supp. 269,

271–72 (D.D.C. 1988) (Bivens claim, citing Fifth, Seventh, and

Ninth Circuits); Helton v. United States, 191 F. Supp. 2d 179,

185 (D.D.C. 2002) (tort claim against U.S. Marshal, citing ten

federal circuit courts of appeal); see also Morgan v. Barry, 596

F. Supp. 897, 899 (D.D.C. 1984) (consent order), and, more

recently, the D.C. Court of Appeals, the District of Columbia’s

highest court, see United States v. Scott, 987 A.2d 1180,

1196–97 (D.C. 2010). (The Third Circuit has not reached the

issue; the Federal Circuit is unlikely to have the occasion to do

so.)

Yet the legality of the practice remains uncertain in this

Circuit because in two sequential class action lawsuits this court

has applied the canon of constitutional avoidance and disposed

of the appeals on qualified immunity grounds. See Johnson, et

al. v. Dist. of Columbia & Dillard, 734 F.3d 1194, 1204 (D.C.

Cir. 2013); id. at 1205–07 (Rogers, J. concurring in part and

concurring in the judgment (hereinafter “Rogers, J.”)); Bame,

637 F.3d at 386; id. at 388 (Rogers, J., dissenting). This

uncertainty exists even though at the time of the challenged strip

searches the United States Marshal for the D.C. Superior Court

2

was not free to ignore, in light of the “consensus of cases of

persuasive authority,” Wilson v. Layne, 526 U.S. 603, 617

(1999), that his blanket strip search policy was unconstitutional.

As a “reasonably competent public official,” Harlow v.

Fitzgerald, 457 U.S. 800, 819 (1982), the United States Marshal

“should [have] know[n] the law governing his conduct,” id., and

therefore “could not have believed that his actions were lawful,”

Wilson v. Layne, 526 U.S. at 617. The court’s position in Bame,

637 F.3d at 386 — that the unanimous conclusion of ten circuits

prior to the time of the challenged strip searches was insufficient

to “clearly establish[],” Wilson v. Layne, 526 U.S. at 606, the

illegality of the United States Marshal’s actions as to non-

detained arrestees — can hardly be reconciled with Supreme

Court qualified immunity precedent. See Bame, 637 F.3d at

389–90 (Rogers, J., dissenting).

As binding precedent, see LaShawn A. v. Barry, 87 F.3d

1389, 1395 (D.C. Cir. 1996) (en banc), however, Bame

controlled in the instant case even though since Bame was

decided six Justices of the Supreme Court have expressed

reservations concerning strip searches of the sort challenged

here and in Bame. See Florence v. Bd. of Chosen Freeholders

of Cnty. of Burlington, 132 S. Ct. 1510, 1523 (2012) (Roberts,

C.J., concurring); id. at 1524 (Alito, J., concurring); id. at 1525

(Breyer, J., joined by Ginsburg, Sotomayor, and Kagan, JJ.,

dissenting). This development, combined with the Supreme

Court’s post-Bame admonition in Camreta, 131 S. Ct. at 2031,

warrants deciding the Fourth Amendment issue, see Johnson,

734 F.3d at 1206–07 (Rogers, J.). Having twice avoided

deciding the merits of the Fourth Amendment class-action

challenges, the en banc court, by “following the two-step

sequence [of Saucier v. Katz, 533 U.S. 194, 201 (2001)] —

defining constitutional rights and only then conferring immunity

— [would] clarify the legal standards governing public

officials,” Camreta, 131 S. Ct. at 2032. The prospect that

3

individuals arrested for exercising their First Amendment rights

in the Nation’s Capital, as in Bame, 637 F.3d at 383, or arrested

for other non-violent, non-drug offenses, as the female

appellants here, see Johnson, 734 F.3d 1194, may be subjected

— when turned over by law enforcement officials to the United

States Marshal for presentment in the D.C. Superior Court — to

intrusive strip searches absent reasonable suspicion of carrying

contraband is good reason for the en banc court to “clearly

establish[],” Wilson v. Layne, 526 U.S. at 606, that Fourth

Amendment protections against such suspicionless strip searches

exist no less in the Nation’s Capital than elsewhere in the United

States.

Today, the en banc court may be comforted by the fact that

the United States Marshal for the D.C. Superior Court changed

his strip search policy after the Johnson appellants were strip

searched. See Appellee’s Br. 59 n.17. But the Marshal’s prior

policy could be reinstated at any time, even on an ad hoc basis.

See Johnson, 734 F.3d at 1207 (Rogers, J.). So long as the law

remains uncertain, the strip searches that occurred in Bame to

First Amendment protesters and in Johnson to non-violent, non-

drug female arrestees could occur again, and under Bame the

United States Marshal again would enjoy qualified immunity.

When the court is next confronted with this Fourth Amendment

challenge, initial rehearing en banc will be appropriate. See

LaShawn A., 87 F.3d at 1395.