J. B. v. James Fassnacht

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 14-3905

J.B., a Minor, by Thomas Benjamin and Janet Benjamin,

Parents and Natural Guardians

v.

JAMES B. FASSNACHT, Pennsylvania State Police Officer,

in his individual capacity; BRIAN BRAY, Pennsylvania State

Police Corporal, in his individual capacity; LANCASTER

COUNTY; DAVID MUELLER, Individually and in his

official capacity as Director of the Lancaster County Office of

Juvenile Probation; CAROLE TROSTLE, Individually and in

her official capacity as Probation Officer at the Lancaster

County Office of Juvenile Probation; DREW FREDERICKS,

Individually and in his official capacity as Director of the

Lancaster County Youth Intervention Center; JOHN DOE;

JANE DOE, Individually and in their official capacity as

Security Officers at the Lancaster County Youth Intervention

Center; ROBERT KLING, Individually and in his official

capacity as Probation Officer at the Lancaster County Office

of Juvenile Probation, DAREN DUBEY, Individually and in

his official capacity as Security Officer at the Lancaster

County Youth Intervention Center; JOSEPH CHOI,

Individually and in his official capacity as Security Officer at

the Lancaster County Youth Intervention Center

LANCASTER COUNTY; JOSEPH CHOI; DARREN

DUBEY,

Appellants

_____________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(E.D. Pa. No. 5:12-cv-00585)

District Judge: Honorable Jeffrey L. Schmehl

_____________

Argued: July 9, 2015

Before: FUENTES, NYGAARD, and ROTH, Circuit Judges

(Opinion Filed: September 15, 2015 )

Charles R. Starnes, Esq.

Brian H. Leinhauser, Esq.

David J. MacMain, Esq. (ARGUED)

The MacMain Law Group, LLC

101 Lindenwood Drive, Suite 160

Malvern, Pennsylvania 19355

Attorneys for Appellants

Kevin C. Allen, Esq. (ARGUED)

Crystle, Allen & Braught, LLC

143 North Duke Street

Lancaster, Pennsylvania 17602

Attorneys for Appellees

2

OPINION OF THE COURT

FUENTES, Circuit Judge

In Florence v. Board of Chosen Freeholders of County

of Burlington,1 the Supreme Court held that all arrestees who

are committed to the general population of a detention center

may be subject to a close visual inspection while undressed.

Today we are asked whether Florence applies to juvenile

offenders admitted to the general population of a juvenile

detention center. We hold that it does.

I. Background

At twelve years old, J.B. skillfully constructed a

homemade flame thrower using PVC pipe, a lighter, and

spray paint. He then activated this contraption in his

backyard. The flame thrower shot flames 1-2 feet in length,

attracting the attention of several neighborhood girls, ages 7-

11, who were playing nearby. The girls told their babysitter

about the flames, and the babysitter asked J.B. to stop playing

with the flame thrower as it was unsafe. Later that day, the

same girls went to J.B.’s front yard and began teasing him.

This teasing resulted in hand-to-hand fighting between J.B.

and at least two of the girls. During this conflict, J.B.

brandished a homemade knife, approximately 5 inches long,

which he held over one of the girl’s heads, stating that he was

stronger than her, “so [he could] kill [her] and over power

1

132 S. Ct. 1510 (2011).

3

[her].”2 The girls also alleged that J.B. directly threatened to

kill them. After J.B. threatened the girls and displayed the

knife, they left his yard and told their babysitter what had

transpired.

The father of two of the girls involved, called the state

police that evening to report the incident. Trooper James

Fassnacht received notice of this report and interviewed the

father, all of the young girls, and J.B. J.B. admitted to

threatening to break one of the girl’s arms and to holding a

homemade knife over another girl’s head.3 Fassnacht

informed J.B.’s father that charges of terroristic threats and

summary harassment would be filed at a later date. Three

weeks later, Fassnacht filed a juvenile allegation against J.B.

with Lancaster County Juvenile Probation Intake Officer

Carole Trostle. Trostle then informed Fassnacht that

Lancaster County Juvenile Probation was ordering J.B.’s

detention due to the seriousness of the charges.

J.B.’s parents surrendered J.B. to the Pennsylvania

State Police barracks in Ephrata, Pennsylvania. He was then

transported to the Lancaster County Youth Intervention

Center (“LYIC”). Upon arrival, J.B. was processed and

subjected to a strip search pursuant to LYIC policy.4 This

2

App. 8.

3

App. 8.

4

The LYIC policy is not a blanket strip search policy, per se.

Rather, facility officials complete an “Unclothed Search

Checklist,” to determine whether a new detainee should be

strip searched. During a deposition, however, one LYIC

official stated that, in practice, all new detainees are strip

4

policy states that such searches are conducted to look for

signs of “injuries, markings, skin conditions, signs of abuse,

or further contraband.”5 Officers are instructed to wear

rubber gloves, refrain from touching the detainee, and to

bring the detainee “to the shower area and close the privacy

curtain in order to obstruct the transporters’ view.”6 During

the strip search, J.B. stood behind a curtain so that only the

officer conducting the search could observe him as he

removed his clothing. J.B. removed his pants and underwear

for approximately ninety seconds. In addition, J.B. was asked

to turn around, drop his pants and underwear, bend over,

spread his buttocks, and cough. J.B. was detained from

Friday, July 24 through Monday, July 27, 2009, when, after a

hearing, he was released to his parents. In October 2009, a

juvenile hearing was held and J.B. did not contest the charges

of terroristic threats and summary harassment. Instead, he

entered into a consent decree by which he agreed to write a

letter of apology to his victims and abide by other probation

requirements in exchange for the opportunity to have his

record expunged.

In February 2012, Plaintiffs Thomas and Janet

Benjamin brought suit on behalf of J.B., asserting various

civil rights violations under 42 U.S.C. § 1983 for false arrest,

unreasonable search and seizure, false imprisonment, and

violations of due process against various prison officials.

searched. The official stated that he could not recall a new

detainee not having been strip searched. App. 296-97.

5

App. 355.

6

App. 354.

5

Defendants filed a motion for summary judgment, which the

District Court granted in part and denied in part. Of

particular relevance, the District Court rejected Defendants’

argument that Plaintiffs’ unreasonable search claims failed

pursuant to Florence. The District Court held that Florence

does not apply to juveniles and thus it did not affect the

legality of J.B.’s search. In so holding, the District Court

reasoned that the facts of Florence addressed strip searches of

adult inmates and made no reference to juvenile detainees.

Accordingly, the District Court proceeded by analyzing J.B.’s

search under a reasonable suspicion standard, as articulated in

Bell v. Wolfish.7 Because the District Court found there to be

a genuine issue of material fact as to whether the detention

facility officials possessed a reasonable suspicion to strip

search J.B., it denied summary judgment on this claim. The

District Court was particularly bothered by the three-week

time lapse between the incident and J.B.’s detention. Under

28 U.S.C. § 1292(b), the District Court then certified the

question of whether Florence applies to all juveniles being

committed to a juvenile detention facility.8

7

441 U.S. 520, 558-59 (1979).

8

We have jurisdiction over this interlocutory order pursuant

to 28 U.S.C. § 1292(b). “[A] non-final order may only be

certified for interlocutory appeal if the court determines it: (1)

involves a ‘controlling question of law,’ (2) for which there is

‘substantial ground for difference of opinion,’ and (3) which

may ‘materially advance the ultimate termination of the

litigation’ if appealed immediately.” Knipe v. SmithKline

Beecham, 583 F. Supp. 2d 553, 598-99 (E.D. Pa. 2008)

6

II. Discussion

A. Florence

In Florence, the petitioner was arrested on an

outstanding bench warrant after a traffic stop. He was

subjected to a strip search upon admission to jail where he

was required to lift his genitals, turn around, and cough while

squatting. The petitioner was released the next day after the

charges against him were dismissed. Following this incident,

petitioner sued the governmental entities that operated the jail

under 42 U.S.C. § 1983, maintaining that people arrested for

minor offenses “could not be required to remove their

clothing and expose the most private areas of their bodies to

close visual inspection as a routine part of the intake

process.”9 The Supreme Court disagreed. At the outset, the

Supreme Court held that “[c]orrectional officials have a

legitimate interest, indeed a responsibility, to ensure that jails

are not made less secure by reason of what new detainees

may carry in on their bodies. Facility personnel, other

inmates, and the new detainee himself or herself may be in

danger if these threats are introduced into the jail

population.”10

Referring to jail “in a broad sense to include prisons

and other detention facilities,”11 the Supreme Court held that

(quoting Katz v. Carte Blanche Corp., 496 F.2d 747, 754 (3d

Cir. 1974)).

9

Florence, 132 S. Ct. at 1514-15.

10

Id. at 1513.

11

Id.

7

“[c]orrectional officials have a significant interest in

conducting a thorough search as a standard part of the intake

process.”12 The Court identified three main risks justifying a

blanket strip search policy in such facilities: (1) the danger of

introducing contagious infections and diseases; (2) the

increasing number of gang members who go through the

intake process; and (3) the detection of contraband, i.e., any

unauthorized item, concealed by new detainees.13 The

necessity of a strip search to detect contraband is clear. The

Supreme Court clarified, however, that a strip search is also

necessary to detect diseases and wounds and identify

potential gang members. With respect to diseases and

wounds, the Court explained that “[p]ersons just arrested may

have wounds or other injuries requiring immediate medical

attention. It may be difficult to identify and treat these

problems until detainees remove their clothes for a visual

inspection.”14 Similarly, identifying potential gang

affiliations is critical before a detainee enters the general

population, where “[f]ights among feuding gangs can be

deadly, and the officers who must maintain order are put in

harm’s way.”15 Thus, a strip search allows corrections

officers to inspect for certain tattoos and other signs of gang

affiliation, which facilitates “[t]he identification and isolation

of gang members before they are admitted.”16 As a result of

12

Id. at 1518.

13

Id. at 1518-19.

14

Id. at 1518.

15

Id. at 1518-19.

16

Id. at 1519.

8

these risks, the Court held that “[i]t is not surprising that

correctional officials have sought to perform thorough

searches at intake . . . . Jails are often crowded, unsanitary,

and dangerous places. There is a substantial interest in

preventing any new inmate . . . from putting all who live or

work at these institutions at even greater risk when he is

admitted.”17

While conceding that correctional officials must be

allowed to conduct an effective search during the intake

process, the petitioner in Florence asserted that an invasive

strip search was not necessary where the detainee had not

been arrested for a serious crime or for any offense involving

a weapon or drugs. The Supreme Court rejected this

argument holding that the petitioner’s standard would be

unworkable given the realities of prison administration.

Stating that “jails can be even more dangerous than prisons

because officials there know so little about the people they

admit at the outset,” the Supreme Court explained that

officers responsible for the intake process often lack access to

criminal history records, and even those records can be

inaccurate or incomplete.18 Such an individualized inquiry

may also lead to discriminatory application by officers who

“would not be well equipped to make any of these legal

determinations during the pressures of the intake process.”19

Thus, the Supreme Court explained that “[i]n

addressing this type of constitutional claim courts must defer

17

Id. at 1520.

18

Id. at 1521.

19

Id. at 1522.

9

to the judgment of correctional officials unless the record

contains substantial evidence showing their policies are an

unnecessary or unjustified response to problems of jail

security.”20 Emphasizing prison officials’ need for discretion,

the Court stated that “[m]aintaining safety and order at these

institutions requires the expertise of correctional officials,

who must have substantial discretion to devise reasonable

solutions to the problems they face.”21 Further, the Court

emphasized the deference owed to correctional officers and

stated “a regulation impinging on an inmate’s constitutional

rights must be upheld ‘if it is reasonably related to legitimate

penological interests.’”22 Strip searches of all detainees prior

to admission to the general population of a jail serves such

penological interests.

The majority opinion, however, left open the

possibility of exceptions to this holding. For example, the

majority acknowledged that this case did not require it to rule

on the types of searches that would be reasonable where a

detainee would be held without assignment to the general jail

population and without substantial contact with other

detainees.23 In such a situation, “[t]he accommodations . . .

may diminish the need to conduct some aspects of the

searches at issue.”24 Similarly, Chief Justice Roberts wrote

20

Id. at 1513-14.

21

Id. at 1515.

22

Id. (quoting Turner, 107 S. Ct. 2254).

23

Id. at 1522.

24

Id. at 1523.

10

separately in a concurrence to emphasize that “the Court does

not foreclose the possibility of an exception to the rule it

announces.”25 Because “factual nuances [did not] play a

significant role” in Florence, Chief Justice Roberts

admonished that “[t]he Court is nonetheless wise to leave

open the possibility of exceptions, to ensure that we ‘not

embarrass the future.’”26 In another concurrence, Justice

Alito echoed Chief Justice Roberts’s sentiments, stating “[i]t

is important to note, however, that the Court does not hold

that it is always reasonable to conduct a full strip search of an

arrestee whose detention has not been reviewed by a judicial

officer and who could be held in available facilities apart

from the general population.”27

Relying on the importance of deference to correctional

officials, Florence permitted strip searches of all detainees

admitted to the general population of a detention facility. On

balance, the Court held that the institutional security risks

outweighed any constitutional right of detainees to be free

from such strip searches.

B. Florence Applies to Juvenile Detainees

This is a case of first impression in this Circuit and all

others. We must determine whether the Supreme Court’s

28

25

Id. (Roberts, C.J., concurring).

26

Id. (quoting Nw. Airlines, Inc. v. Minnesota, 322 U.S. 292,

300 (1944)).

27

Id. at 1524 (Alito, J., concurring).

28

The Sixth Circuit had occasion to consider the applicability

of Florence to juvenile offenders in T.S. v. Doe, 742 F.3d 632

11

holding in Florence extends to juvenile detainees. Analogous

to Florence, we must balance a juvenile detainee’s privacy

interest with the risks to their well-being and the institutional

security risks in not performing such searches.

At the outset, we acknowledge that “[a] strip search

with body-cavity inspection is the practice that ‘instinctively’

(2014). There, two juveniles were arrested for underage

drinking and brought to a juvenile detention center. Upon

their arrival, the juveniles were subjected to a strip search per

the detention center’s normal intake procedures. The Sixth

Circuit granted qualified immunity, holding that the right of

juvenile detainees to be free from strip searches was not

clearly established at the time. It, however, rested this

decision less on the applicability of Florence and more on the

rationale of N.G. v. Connecticut, 382 F.3d 225 (2d Cir. 2004)

(upholding a strip search of juvenile detainees under the

special needs exception to the Fourth Amendment) and

Smook v. Minnehaha County, 457 F.3d 806 (8th Cir. 2006)

(same). According to the Sixth Circuit, “[i]f this case

involved adult detainees, Florence clearly holds that there

would be no constitutional violation. Here, however,

Florence does not squarely address the constitutional issue, so

that we could dispose of the merits of this case with nothing

more than a citation.” T.S., 742 F.3d at 637. Thus, the Sixth

Circuit failed to rule explicitly one way or the other on the

applicability of Florence to juveniles. In dicta, the Sixth

Circuit expressed concern “that juvenile and adult detainees

are subject to the same rules.” Id.

12

has given the Supreme Court ‘the most pause.’”29 Our sister

Circuits have recognized that strip searches are “a serious

intrusion upon personal rights”30; “an offense to the dignity of

the individual”31; and “demeaning, dehumanizing,

undignified, humiliating, terrifying, unpleasant, embarrassing,

and repulsive.”32 And “since youth . . . is a . . . condition of

life when a person may be most susceptible . . . . to

psychological damage . . . [c]hildren are especially

susceptible to possible traumas from strip searches.”33 Given

that strip searches impose the substantial risk of

psychological damage for juvenile detainees, at least one of

our Sister circuits has found that a juvenile maintains an

enhanced right to privacy.34 We agree.

29

N.G., 382 F.3d at 233 (quoting Bell v. Wolfish, 441 U.S.

520, 558 (1979)).

30

Justice v. City of Peachtree City, 961 F.2d 188, 192 (11th

Cir. 1992).

31

Burns v. Loranger, 907 F.2d 233, 235 n.6 (1st Cir. 1990).

32

Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1272 (7th

Cir. 1983).

33

N.G., 382 F.3d at 233 (internal citations and quotation

omitted).

34

See Smook, 457 F.3d at 811 (“The juvenile’s interest in

privacy is greater than an adult’s, the court thought, because

‘the adverse psychological effect of a strip search is likely to

be more severe upon a child than an adult, especially a child

who has been the victim of sexual abuse.” (quoting N.G., 382

F.3d at 232)); see also N.G., 382 F.3d at 232 (“Strip searches

13

We do not underestimate the trauma inflicted upon a

youth subjected to a strip search. Yet, we must also

acknowledge the realities of detention, irrespective of age.

“A detention facility is a unique place fraught with serious

security dangers. Smuggling of money, drugs, weapons, and

other contraband is all too common an occurrence.”35

Although the Eighth Circuit found an enhanced privacy

interest for juveniles subjected to strip searches, it approved

such searches, albeit under a reasonableness inquiry

balancing the privacy right against other factors, including

institutional security risks and a facility’s enhanced risk when

housing minors. Using Florence as a guidepost, we must

balance juvenile detainees’ constitutional rights against the

overarching security interests to determine whether a strip

search upon admission to the general population of a juvenile

detention facility “is reasonably related to legitimate

penological interests.”36

Plaintiffs argue that the holding in Florence is limited

to its facts—that is to say, Florence is limited in application

to adult detainees. We disagree for several reasons. First, the

institutional security reasons identified in Florence similarly

implicate juvenile detention centers. Indeed, juveniles

represent the same risks to themselves, staff, and other

of children pose the reasonableness inquiry in a context where

both the interests supporting and opposing such searches

appear to be greater than with searches of adults confined for

minor offenses.”).

35

Bell, 441 U.S. at 559.

36

Florence, 132 S. Ct. at 1515.

14

detainees as adults in similar facilities. They may carry lice

or communicable diseases, possess signs of gang

membership, and attempt to smuggle in contraband.37 Recent

trends indicate that children are being recruited into gangs at

a much earlier age—even as early as elementary school.38

Likewise, juveniles present the risk of smuggling in

contraband. This case is exemplary of this fact. The

Supreme Court defines contraband broadly in Florence: “The

textbook definition of the term covers any unauthorized item.

Everyday items can undermine security if introduced into a

detention facility.”39 The Court highlights that even

37

See N.G., 382 F.3d at 235 (“[C]ontraband such as a knife or

drugs can pose a hazard to the security of an institution and

the safety of inmates whether the institution houses adults

convicted of crimes or juveniles in detention centers.”).

38

Children and Gangs, Facts for Families, Am. Acad. of

Child & Adolescent Psychiatry (Sept. 2011), available at

https://www.aacap.org/App_Themes/AACAP/docs/facts_for_

families/98_children_and_gangs.pdf. Indeed, gang activity

has spread from cities to smaller towns and rural areas. Id.

“Some children and adolescents are motivated to join a gang

for a sense of connection or to define a new sense of who they

are. Others are motivated by peer pressure, a need to protect

themselves and their family, because a family member also is

in a gang, or to make money.” Id. Signs of gang affiliation

may include, “[w]earing clothing of all one type, style, or

color, or changing appearance with special haircuts, tattoos,

or other body markings.” Id.

39

Florence, 132 S. Ct. at 1519.

15

innocuous items such as money, some types of clothing,

lighters, matches, cell phones, pills, medications, chewing

gum, and hairpins can present serious risks to prison

security.40 In this case, J.B. possessed the guile to craft a

homemade flame thrower and knife—he was clever enough,

then, even at the young age of twelve, to smuggle contraband

into the detention facility.

In addition, juveniles pose risks unique from those of

adults as the state acts as the minor’s de facto guardian, or in

loco parentis,41 during a minor’s detention period. This status

creates an enhanced responsibility to screen for signs of

disease, self-mutilation, or abuse in the home.42 Self-

mutilation is of particular concern—detention may exacerbate

underlying mental illness, making initial screening imperative

40

Id.

41

“Where the state is exercising some legitimate custodial

authority over children, its responsibility to act in the place of

parents (in loco parentis) obliges it to take special care to

protect those in its charge, and that protection must be

concerned with dangers from others and self-inflicted harm.

‘Children . . . are assumed to be subject to the control of their

parents, and if parental control falters, the State must play its

part as parens patriae. . . . In this respect, the juvenile’s

liberty interest may, in appropriate circumstances, be

subordinated to the State’s parens patriae interest in

preserving and promoting the welfare of the child.” N.G.,

382 F.3d at 232 (quoting Schall v. Martin, 467 U.S. 253, 265

(1984)).

42

N.G., 382 F.3d at 236.

16

for continued monitoring of the juvenile detainee and to

ensure he is provided with adequate mental health services

while detained. LYIC’s policy regarding strip searches

underscores these concerns in that officers are instructed to

observe the body for signs of “injuries, markings, skin

conditions, signs of abuse, or further contraband.”43

There is no easy way to distinguish between juvenile

and adult detainees in terms of the security risks cited by the

Supreme Court in Florence. Indeed, “[a] detention center,

police station, or jail holding cell is a place ‘fraught with

serious security dangers.’ These security dangers to the

institution are the same whether the detainee is a juvenile or

an adult.”44 Plaintiffs do not argue to the contrary; rather,

they contend that LYIC could employ less invasive methods

to achieve the same end. They suggest using sensitive

scanning devices and narcotic scanners. This argument,

however, was rejected by Florence. There, the Supreme

Court explained that “[t]hese [strip search] procedures,

similar to the ones upheld in Bell, are designed to uncover

contraband that can go undetected by a patdown, metal

detector, and other less invasive searches.”45 Indeed, aside

from failing to detect contraband, less invasive searches may

leave undetected markings on the body indicating self-

mutilation or potential abuse in the home.

43

App. 355.

44

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

(quoting Bell, 441 U.S. at 559).

45

Florence, 132 S. Ct. at 1520.

17

Plaintiffs also maintain that while Florence made no

reference to any type of age classification for purposes of

strip searches, it is Safford Unified School District #1 v.

Redding46 that “sets the law for conducting the search of

children.”47 We are unpersuaded. In Safford, the Supreme

Court applied a reasonable suspicion standard to the strip

search of a juvenile in her school. Safford may set the law for

conducting strip searches of children in schools, but it falls far

short from setting the law for strip searches of juvenile

detainees. The Supreme Court’s rationale was not predicated

on age as much as it focused on the status of the juvenile as a

schoolchild. Safford was rooted in the basic notion that

schoolchildren are entitled to an expectation of privacy.48 A

strip search of a juvenile by a school administrator lacking

reasonable suspicion, then, was a repugnant invasion of such

expectation. We reiterate, however, that “the prisoner and the

schoolchild stand in wholly different circumstances.”49 This

is so because “the need to maintain order in a prison is such

that prisoners retain no legitimate expectations of privacy in

their cells.”50 Plaintiffs concede that the security interests at a

public school may be different from those of a juvenile

detention center, but they argue that “the goals of the policies

of both institutions should be to provide a safe environment

46

557 U.S. 364 (2009).

47

J.B. Br. 28.

48

Safford, 557 U.S. at 374-77.

49

T.L.O., 469 U.S. at 338 (quoting Ingraham v. Wright, 430

U.S. 651, 669 (1977)).

50

Id.

18

for juveniles balanced with a respect for dignity and privacy

for all.”51 We encourage detention centers with blanket strip

search policies to maintain protocol minimizing the

embarrassment and indignity of such a search for the juvenile.

Nevertheless, J.B. did not possess the same reasonable

expectation of privacy upon admission to the LYIC as did the

schoolchild in Safford. That he was twelve years old when

this occurred does not change that fact. Accordingly, we find

that these penological interests outweigh the privacy interests

of juvenile detainees. Juvenile detainees present risks both

similar and unique to those cited in Florence. At bottom,

these risks pose significant dangers to the detainee himself,

other detainees, and juvenile detention center staff.

Second, any individualized, reasonable suspicion

inquiry falters in juvenile detention centers for the same

reasons it does so in adult facilities. In Florence, the

petitioner argued that a detainee arrested for a minor offense

should be exempt from strip searches upon admission. The

Supreme Court rejected this argument, finding the standard

“unworkable.”52 Such a standard was unworkable because

“[i]t . . . may be difficult, as a practical matter, to classify

inmates by their current and prior offenses before the intake

search.”53 “The difficulties of operating a detention center

must not be underestimated by the courts.”54 One difficulty is

that facilities often know little to nothing about new

51

J.B. Br. 27.

52

Florence, 132 S. Ct. at 1520.

53

Id. at 1521.

54

Id. at 1515.

19

detainees. This is a result of many factors. For example, a

new detainee might lie about his identity or carry false

identification when he is arrested. Any records officers may

have access to (and they often do not have access to records)

might be inaccurate upon intake. The paucity of information

regarding a new detainee makes it unreasonable for an officer

to “assume the arrestees in front of them do not pose a risk of

smuggling something into the facility.”55

The Supreme Court has consistently recognized the

utility of blanket policies in prison administration. In Bell v.

Wolfish, the Supreme Court upheld a policy requiring pretrial

detainees in any correctional facility run by the Federal

Bureau of Prisons to undergo a strip search after every

contact visit with a person from outside the institution.56

Following Bell, the Supreme Court then upheld a ban to all

contact visits in Block v. Rutherford because of the threat they

posed.57 The Court found that “[t]here were ‘many

justifications’ for imposing a general ban rather than trying to

carve out exceptions for certain detainees. Among other

problems, it would be ‘a difficult if not impossible task’ to

identify ‘inmates who have propensities for violence, escape,

or drug smuggling.’”58 This problem was exacerbated by the

“brevity of detention and the constantly changing nature of

55

Id.

56

441 U.S. 520.

57

468 U.S. 576 (1984).

58

Florence, 132 S. Ct. at 1516 (quoting Block, 468 U.S. at

587).

20

the inmate population.”59 In Hudson v. Palmer, the issue was

whether prison officials could perform random searches of

inmate lockers and cells even without reason to suspect a

particular individual of concealing a prohibited item.60 The

Supreme Court upheld such searches and explained in

Florence that it “recognized that deterring the possession of

contraband depends in part on the ability to conduct searches

without predictable exceptions.”61 This is so, the Court

explained, because “[i]nmates would adapt to any pattern or

loopholes they discovered in the search protocol and

undermine the security of the institution.”62 Thus, any

argument for an individualized inquiry of new detainees is

impractical, if not dangerous, given the realities of jail

administration.

Not only is such an inquiry unrealistic, it is also

vulnerable to abuse. The Supreme Court warned that “[t]he

laborious administration of prisons would become less

effective, and likely less fair and evenhanded,” should an

individualized inquiry be implemented.63 Classifications

based on individual characteristics risk discriminatory

application on the part of officers. Officers might strip search

a juvenile based on sex, race, accent, age, or any other

number of characteristics. Pressured, “[t]o avoid liability,

59

Block, 468 U.S. at 587.

60

468 U.S. 517 (1984).

61

Florence, 132 S. Ct. at 1516.

62

Id. at 1517.

63

Id. at 1521.

21

officers might be inclined not to conduct a thorough search in

any close case, thus creating unnecessary risk for the entire

jail population.”64 Because officers in any detention facility

have an “essential interest in readily administrable rules,”65

blanket strip search policies upon admission to the general

population of a jail, regardless of whether the detainee is a

juvenile or adult, make good sense. Any other policy would

“limit the intrusion on the privacy of some detainees but at

the risk of increased danger to everyone in the facility.”66

Thus, to the extent the Supreme Court addressed this type of

inquiry in rejecting the petitioner’s argument for an exclusion

for non-serious offenders, we similarly reject Plaintiffs’

argument that juveniles are to be excluded, or, moreover, that

non-serious juvenile offenders be excluded.

Finally, we must disagree with Plaintiffs’ assertion that

the Supreme Court contemplated an exception for juvenile

detainees. The Supreme Court acknowledged that “[t]his 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.”67 Moreover, Chief Justice Roberts concurred,

64

Id. at 1522.

65

Atwater v. Lago Vista, 532 U.S. 318, 347 (2001).

66

Florence, 132 S. Ct. at 1522. Thus, the Supreme Court

recognized that to the extent prisoners retain an expectation of

privacy, that expectation is unreasonable in the face of the

security risks in jails.

67

Id.

22

reiterating that the “Court is nonetheless wise to leave open

the possibility of exceptions, to ensure that we ‘not embarrass

the future.’”68 We do not, however, interpret the Court to

have contemplated an exception based on age classifications.

Instead, the exceptions contemplated by the Court appear to

involve factual scenarios where, for instance, release into the

general population of the facility is not necessary. 69 Thus, it

is reasonable to believe there are scenarios where a juvenile’s

release into the general population of a detention facility is

not necessary. In such a circumstance, the Supreme Court

has not ruled on the legality of a strip search and such a

search may indeed require a reasonable suspicion analysis as

contemplated in Bell v. Wolfish.70 But this is quite a different

68

Id. at 1523(quoting Nw. Airlines, Inc., 322 U.S. at 300).

69

Id. at 1524 (Alito, J., concurring).

70

We defer to the discretion of detention facility officers

regarding the decision to place a juvenile detainee in the

general population of a facility. We acknowledge that the

composition of a juvenile detention center varies from youths

detained for minor infractions to more serious offenses. That

these detention facilities house youths guilty of status

offenses, i.e., behaviors illegal for underage people but not for

adults, cannot compel a different result. As acknowledged by

the Supreme Court, offense level is a poor way to discern

whether a detainee presents a risk to the facility. See

Florence, 132 S. Ct. at 1520 (“People detained for minor

offenses can turn out to be the most devious and dangerous

criminals.”). With that said, the Supreme Court has had no

occasion to review a case, where, a detainee can be held in

available facilities removed from the general population and

23

thing than the Court carving out an exception to its holding

based on the individual characteristics of a detainee, of which

age is a component. Given that the security risks are similar

irrespective of whether the facility hosts adults or juveniles

and that an individualized inquiry proves unworkable for

both, we do not believe the Supreme Court contemplated such

an exception.

Furthermore, reading in such an exception would be in

contrast to the Supreme Court’s use of broad, sweeping

language. For example, it defined “jail” in a “broad sense to

include prisons and other detention facilities.”71 This

comports with the federal definition of prison: “[A]ny

Federal, State, or local facility that incarcerates or detains

juveniles or adults accused of, convicted of, sentenced for, or

adjudicated delinquent for, violations of criminal law.”72 In

addition, the Court uses adjectives such as “every,” and “all,”

when describing who will be strip searched. For instance, “in

broad terms, the controversy concerns whether every detainee

who will be admitted to the general population may be

required to undergo a close visual inspection while

undressed”73; “[t]here is a substantial interest in preventing

any new inmate, either of his own will or as a result of

coercion, from putting all who live or work at these

institutions at even greater risk when he is admitted to the

we encourage juvenile detention centers to consider other

options where appropriate.

71

Florence, 132 S. Ct. at 1513.

72

18 U.S.C. § 3626(g).

73

Florence, 132 S. Ct. at 1513 (emphasis added).

24

general population”74; and “[t]he Court holds that jail

administrators may require all arrestees who are committed to

the general population of a jail to undergo visual strip

searches.”75 The only qualification is that the detainee must

be admitted to the general population. This is in contrast to

Safford, where the Supreme Court carefully delineated its

holding, limiting it to strip searches of minors specifically in

the school setting. We see no such carefully drawn

limitations in Florence, and we cannot honor Plaintiffs’

request to read Florence so narrowly as to infer such a

limitation.

III. Conclusion

“Deference must be given to the officials in charge of

a jail unless there is ‘substantial evidence’ demonstrating

their response to the situation is exaggerated.”76 Plaintiffs fail

to put forth such evidence, and thus we reverse the District

Court’s order denying Defendants’ motion for summary

judgment on this claim. For all of the reasons stated above,

Florence guides our decision to uphold LYIC’s strip search

policy of all juvenile detainees admitted to general population

at LYIC.

74

Id. at 1520 (emphasis added).

75

Id. at 1524 (Alito, J., concurring) (emphasis added).

76

Id. at 1518 (quoting Block, 468 U.S. at 585).

25