Bull v. City & County Sf

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARY BULL; JONAH ZERN, and all 

others similarly situated; LAURA

TIMBROOK; LEIGH FLEMING; CHARLI

JOHNSON; MICKY MANGOSING;

ALEXIS BRONSON; MARCY CORNEAU;

LISA GIAMPAOLI, No. 05-17080

Plaintiffs-Appellees,

v.  D.C. No.

CV-03-01840-CRB

CITY AND COUNTY OF SAN

FRANCISCO; SAN FRANCISCO COUNTY

SHERIFF’S DEPARTMENT; MICHAEL

HENNESSEY, Sheriff; SAN FRANCISCO

COUNTY SHERIFF’S DEPUTIES,

Defendants-Appellants.



MARY BULL; JONAH ZERN, and all 

others similarly situated; LAURA

TIMBROOK; LEIGH FLEMING; CHARLI

JOHNSON; MICKY MANGOSING;

ALEXIS BRONSON; MARCY CORNEAU;

No. 06-15566

LISA GIAMPAOLI,

Plaintiffs-Appellees, D.C. No.

v.  CV-03-01840-CRB/

EMC

CITY AND COUNTY OF SAN

OPINION

FRANCISCO; SAN FRANCISCO COUNTY

SHERIFF’S DEPARTMENT; MICHAEL

HENNESSEY, Sheriff; SAN FRANCISCO

COUNTY SHERIFF’S DEPUTIES,

Defendants-Appellants.



11471

11472 BULL v. CITY AND COUNTY OF SAN FRANCISCO

Appeal from the United States District Court

for the Northern District of California

Charles R. Breyer, District Judge, Presiding

Argued and Submitted

November 6, 2007—San Francisco, California

Filed August 22, 2008

Before: Sidney R. Thomas, Richard C. Tallman, and

Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Thomas;

Concurrence by Judge Ikuta;

Dissent by Judge Tallman

BULL v. CITY AND COUNTY OF SAN FRANCISCO 11475

COUNSEL

Dennis J. Herrera, City Attorney; Joanne Hoeper, Chief Trial

Attorney; and David B. Newdorf (argued) and Robert A.

Bonta, City Attorneys, for the appellants.

Marke E. Merin and Cathleen A. Williams, Law Office of

Mark E. Merin (argued); and Andrew Charles Schwartz

(argued) and Thomas A. Seaton, Casper, Meadows, Schwartz

& Cook, for the appellees.

OPINION

THOMAS, Circuit Judge:

In this interlocutory appeal, we consider whether a blanket

policy of strip searching without reasonable suspicion of all

individuals arrested and classified for housing in the general

jail population violates the arrestees’ clearly established con-

stitutional rights. Under the circumstances presented by this

case, we conclude that it does, and affirm the order of the dis-

trict court denying qualified immunity in this § 1983 class

action suit.

11476 BULL v. CITY AND COUNTY OF SAN FRANCISCO

I

The San Francisco Sheriff’s Department (“Department”)

oversees an urban jail system, consisting of six county jails,

which books and processes tens of thousands of persons a

year. All new arrestees are brought to County Jail No. 9

where they are booked and a determination is made as to

whether the arrestee will be released or housed pending

arraignment. County Jail No. 9 is a temporary detention facil-

ity and does not contain accommodations for extended stays.

Thus, all detainees who are classified for housing are trans-

ferred to another one of San Francisco’s jails within 24 hours.

San Francisco’s jails have faced a continuing problem with

smuggled contraband, including drugs and weapons. Searches

within the general jail population have uncovered hundreds of

items of contraband. Many items of contraband have been dis-

covered during strip searches conducted on new arrestees at

County Jail No. 9. Defendants produced evidence of 49 dis-

coveries of drug-related contraband and six weapon discover-

ies between April 2000 and January 2004.

Until January 21 2004, San Francisco had a policy1 of strip

searching all arrestees entering County Jail No. 9 who fell

into multiple particular categories.2 The strip search involved

1

San Francisco’s new policy, which went into effect January 21, 2004

and currently remains in effect, is not at issue in this case.

2

According to the San Francisco Sheriff’s Department’s Policy and Pro-

cedure manual, the following categories of arrestees were required to be

strip searched at the time of booking:

• An arrestee charged with a crime involving

drugs, weapons, or violence;

• An arrestee with a criminal history involving

drugs, weapons, or violence within the preceding

five years or multiple arrests within the last five

years for drugs, weapons, or violence;

BULL v. CITY AND COUNTY OF SAN FRANCISCO 11477

inspection of the naked body, including the arrestee’s breasts,

buttocks, and genitalia.

According to Defendants, the strip search policy was

applied as follows: upon arrival at County Jail No. 9, all

inmates who were deemed searchable based on their charge

or criminal history were automatically strip searched. Other

arrestees were generally not strip searched unless they were

• A person charged with a parole violation or

booked with a state parole hold;

• A person charged with violation of probation;

• A person in custody on detainer from another

jurisdiction;

• A person returned to custody from San Francisco

County parole;

• A person returned to custody from residential

placement programs;

• A person in custody of another agency, booked

into jail for safe-keeping;

• A person booked on a U.S. Marshal hold;

• A person assigned a custody level and scheduled

for custodial housing;

• A person delivered from another jail.

The manual also stipulated that any arrestee may be strip searched by

the “arresting, transporting, or booking officer” when the officer “has a

reasonable suspicion based on articulable facts that the person may pos-

sess contraband.

11478 BULL v. CITY AND COUNTY OF SAN FRANCISCO

identified for placement in a safety cell,3 or if the detainee

would not be released within twenty-four hours and therefore

would need to be housed in another jail facility. In other

words, the Department followed a blanket policy of strip

searching all individuals who were classified for housing in

the general jail population, regardless of the crime for which

they were charged.

On April 23, 2003, Mary Bull and a class of similarly-

situated plaintiffs brought a § 1983 suit against Defendants

alleging causes of action under the Fourth and Fourteenth

Amendments of the U.S. Constitution, and several provisions

of state law. In an order issued June 10, 2004, the district

court granted Bull’s motion to certify a class under Rule

23(b)(3). The class was defined as:

All persons who, during the applicable period of lim-

itations, and continuing to date, were arrested on any

charge not involving weapons, controlled sub-

stances, or a charge of violence, and not involving a

violation of parole or a violation of probation (where

consent to search is a condition of such probation),

and who were subjected to a blanket visual body

cavity strip search by defendants before arraignment

at a San Francisco County jail facility without any

individualized reasonable suspicion that they were

concealing contraband. This class also includes 1) all

arrestees who were subjected to subsequent blanket

strip search(es) before arraignment after the initial

strip search, without any reasonable individualized

suspicion that they had subsequently acquired and

hidden contraband on their persons; and 2) all per-

sons who, prior to arraignment, were subjected to

blanket visual body cavity search(es) incident to

3

Safety cells are single-occupant, padded cells used to house inmates

who were considered a danger to themselves or others, to be behaving in

a “bizarre” manner, or to be “gravely disabled.”

BULL v. CITY AND COUNTY OF SAN FRANCISCO 11479

placement in a “safety cell” at any of the San Fran-

cisco County jails.

The class was further limited by the district court’s Febru-

ary 23, 2006 order, which held that San Francisco’s policy of

strip searching arrestees on the basis of their criminal history

was lawful.4 The persons in the class as it stands before this

Court are thus all arrestees who were strip searched prior to

arraignment solely because they were classified for housing in

the general jail population prior to their arraignment.

The parties filed cross-motions for summary judgment. On

September 22, 2005 the district court granted in part and

denied in part both motions. In relevant part, the district court

held that Sheriff Hennessey was not entitled to qualified

immunity with respect to San Francisco’s blanket policy of

strip searching all individuals classified for housing in the

general jail population. Defendants now appeal the district

court’s denial of qualified immunity for Sheriff Hennessey.5

II

We review de novo a district court’s decision to grant sum-

mary judgment on the ground of qualified immunity. Motley

v. Parks, 383 F.3d 1058, 1062 (9th Cir. 2004). In reviewing

4

Specifically, the court excluded arrestees with one or more prior con-

victions or two or more prior arrests for crimes involving drugs, weapons

or violence within the prior five years.

5

On October 21, 2006 Defendants moved for reconsideration of portions

of the district court’s August 30, 2005 Order that were unrelated to the

court’s denial of qualified immunity for the Sheriff. Defendants simulta-

neously appealed the denial of qualified immunity to this Court. This

appeal was assigned Docket No. 05-17080. On February 23, 2006 the dis-

trict court issued an Amended Memorandum and Order Re: Motions for

Summary Judgment. Defendants again appealed the denial of qualified

immunity to this Court. This second appeal was assigned Docket No. 06-

15566. On April 26, 2006, this Court issued an Order consolidating

appeals No. 05-17080 and 06-15566.

11480 BULL v. CITY AND COUNTY OF SAN FRANCISCO

a district court’s grant of summary judgment we must deter-

mine, viewing the evidence in the light most favorable to the

nonmoving party, whether there are any genuine issues of

material fact and whether the district court correctly applied

the relevant substantive law. Olsen v. Idaho State Bd. of Med.,

363 F.3d 916, 922 (9th Cir. 2004).

To determine whether a government employee is entitled to

qualified immunity, we use a two-part test. Saucier v. Katz,

533 U.S. 194, 201 (2001). First, we must determine whether,

viewing the facts in the light most favorable to the plaintiff,

the government employees violated the plaintiff’s constitu-

tional rights. Id. Then, if we determine that a constitutional

violation has occurred, we must determine whether the rights

were clearly established at the time of the violation. Id.

A

We turn first to the question of whether a policy of strip

searching arrestees solely because they are classified for hous-

ing in the general population, in the absence of any reasonable

suspicion, violates the arrestees’ constitutional rights. Follow-

ing a long history of precedent, we conclude that it clearly

does.

[1] In the first case to raise the question, Giles v. Ackerman,

746 F.2d 614 (9th Cir. 1984) (per curiam), overruled on other

grounds by Hodgers-Durgin v. de la Vina, 199 F.3d 1037,

1040 n.1 (9th Cir. 1999) (en banc), we announced the govern-

ing standard that “arrestees for minor offenses may be sub-

jected to a strip search only if jail officials have a reasonable

suspicion that the particular arrestee is carrying or concealing

contraband or suffering from a communicable disease.” Id. at

615.6

6

The dissent’s suggestion that this standard was stated in dicta is disin-

genuous. The full text of the sentence quoted above is as follows: “We

hold that arrestees for minor offenses may be subjected to a strip search

BULL v. CITY AND COUNTY OF SAN FRANCISCO 11481

[2] We have revisited pre-arraignment searches several

times, on each occasion reaffirming the individualized reason-

able suspicion standard laid out in Giles. In Ward v. County

of San Diego, 791 F.2d 1329 (9th Cir. 1986), we found no

qualified immunity for a San Diego County Sheriff who had

enacted a blanket strip search policy which resulted in the

visual body cavity search of a misdemeanor arrestee prior to

a determination regarding the arrestee’s eligibility for an own

recognizance release. In Thompson v. City of Los Angeles,

885 F.2d 1439 (9th Cir. 1989), we held that the strip search

of a person arrested for felony grand theft auto was valid

because the charge was “sufficiently associated with violence

to justify a visual strip search.” Id. at 1447. The next year,

however, we held unconstitutional the City of Los Angeles’s

blanket strip search policy which subjected all felony

arrestees to a visual body cavity search. Kennedy v. Los Ange-

les Police Dept., 901 F.2d 702, 714 (9th Cir. 1990), abrogated

on other grounds by Hunter v. Bryant, 502 U.S. 224 (1991)

(per curiam). In Kennedy, we emphasized that while a charge

of a violent offense, such as the charge in Thompson, may jus-

tify a strip search, the mere fact of a felony charge bears no

reasonable relationship to institutional security concerns. Id.

at 713 (“[T]he enacted policy, if it is to be constitutional, must

be ‘reasonably related’ to the penal institution’s interest in

maintaining security.”). In short, under controlling circuit pre-

cedent, a blanket strip search of pre-arraignment arrestees, no

matter how minor the offense and in absence of reasonable

suspicion, violates the Constitution.

Defendants argue that San Francisco’s policy is constitu-

tional under Bell v. Wolfish, 441 U.S. 520 (1979), in which

only if jail officials have a reasonable suspicion that the particular arrestee

is carrying or concealing contraband or suffering from a communicable

disease.” Giles, 746 F.2d at 615 (emphasis added). The dissent may dislike

the holding in Giles but there is no reasonable dispute that the above state-

ment is the holding, not mere dicta.

11482 BULL v. CITY AND COUNTY OF SAN FRANCISCO

the Supreme Court addressed a strip search policy applied to

prisoners and pre-trial detainees. However, Bell pre-dated the

pre-arraignment cases in our circuit, which carefully consid-

ered and distinguished Bell.

[3] In Bell the Supreme Court held that strip and visual

body cavity searches may, in certain instances, be conducted

on prisoners and pretrial detainees in institutional settings

with less than probable cause. 441 U.S. at 560. In determining

whether an institutional search policy is reasonable under the

Fourth Amendment, a court must balance “the need for the

particular search against the invasion of personal rights that

the search entails.” Id. at 559. In each case, a court “must con-

sider 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. Giles, Ward, Thompson,

and Kennedy were each decided subsequent to, and with the

benefit of, the Supreme Court’s holding in Bell.

Defendants also argue that San Francisco’s strip search pol-

icy was justified by the fact that the arrestees were to be trans-

ferred for housing in the general jail population, noting that

the introduction of contraband to the general population raises

serious security concerns. However, we have previously made

clear that although the fact that an arrestee is to be “placed

into contact with the general jail population” is one important

factor among many that may be considered in gauging the

reasonableness of a search, “such a factor by itself cannot jus-

tify a strip search.” Thompson, 885 F.2d at 1447; see also

Giles, 746 F.2d at 618-19 (rejecting the notion that placement

in the general jail population was enough to validate a strip

search because “intermingling is both limited and avoidable”).

[4] “The intrusiveness of a body-cavity search cannot be

overstated.” Kennedy, 901 F.2d at 711. To justify such a “de-

humanizing and humiliating,” id., invasion of privacy, there

must be some reasonable relationship between the criteria

used to identify the specific individuals eligible for a strip

BULL v. CITY AND COUNTY OF SAN FRANCISCO 11483

search and the interest in preventing the introduction of con-

traband. See Giles, 746 F.2d at 618 (reasonableness require-

ment under the Fourth Amendment requires that the strip

search bear some “discernible relationship to security needs”

(quoting Logan v. Shealy, 660 F.2d 1007, 1013 (4th Cir.

1981))); see also Kennedy, 901 F.2d at 713 (stressing the

importance of documentation supporting the assertion that

arrestees within the strip search category smuggle contraband

into the jail in greater frequency than arrestees outside of the

category). We have consistently noted that factors to be con-

sidered in determining whether reasonable suspicion exists to

warrant a strip search include “the nature of the offense, the

arrestee’s appearance and conduct, and the prior arrest

record.” Giles, 746 F.2d at 617; see also Thompson, 885 F.2d

at 1446.

[5] The challenged portion of San Francisco’s policy did

not consider such individualized factors and required strip

searches of arrestees based solely on their classification for

housing in the general population. Defendants nonetheless

argue that the present case is distinguishable from our long

line of precedent because they have produced substantial doc-

umentary evidence of the significant problem of contraband

in the general population of San Francisco jails. The district

court carefully examined the tendered evidence and found that

Defendants proffered no evidence demonstrating smuggling

by individuals who would qualify for membership in the

plaintiff class. Defendants argue that the record “established

that many detainees charged with minor offenses tried to

smuggle contraband into jail.” However, both Plaintiffs and

the district court correctly point out that of the numerous inci-

dents of discovered contraband documented by Defendants

and presented to the district court, none clearly documents a

single uncontroverted instance of a class member smuggling

contraband into a San Francisco facility.

Several of the documented searches were based on permis-

sible factors and the documentation for the remaining inci-

11484 BULL v. CITY AND COUNTY OF SAN FRANCISCO

dents does not contain any evidence relating either to the

reason for the search or the arrestee’s eligibility for class

membership. To review, the class certified by the district

court includes arrestees who were arrested for an offense not

involving drugs, weapons, violence, or a violation of parole

or probation; who did not have a criminal history involving

drugs, weapons, or violence; and whose behavior did not

create individualized suspicion warranting a search. The two

incidents cited by the Defendants illustrate the deficiency of

their documentation. First, Defendants point to an incident on

November 19, 2003 in which a man who was arrested on a

warrant for maintaining a public nuisance was found smug-

gling a plastic bag of suspected cocaine powder into the jail.

The documentation of this incident in the record consists of

an Incident Report and a Field Arrest Card. Neither document

indicates whether the arrestee had a criminal history that

would legitimize the search or whether there was any other

individualized suspicion that would legitimize the search.

Without more information, it is impossible to determine

whether this particular arrestee would be eligible for class

membership. Second, Defendants contend that a strip search

of an arrestee, who was not charged with drugs, weapons or

violence offenses, uncovered an 8-inch pair of scissors. The

only documentation in the record of this incident is a Contra-

band Form. The Contraband Form does not indicate the

charges on which this individual was arrested, the individual’s

criminal history, or whether there was any individualized sus-

picion that prompted the search. It is impossible to tell from

the record whether or not this individual is in fact an eligible

member of the class. In short, Defendants’ claim that they

have documented instances of eligible class members engag-

ing in smuggling contraband is not credible and not supported

by the record.7

7

Because Defendants did not actually produce sufficient evidence, with

respect to either of these incidents, to establish whether or not the searched

individuals were eligible class members, we need not consider whether

only two documented incidents would be sufficient to justify the policy.

BULL v. CITY AND COUNTY OF SAN FRANCISCO 11485

The incidents cited by the dissent similarly fail to demon-

strate even a single occurrence of a strip search uncovering

contraband from an eligible class member. Of the twelve inci-

dents cited by the dissent, two did not even involve strip

searches,8 and three others involved arrestees who were

demonstrably ineligible for class membership because they

were arrested on parole violation or drug charges. The docu-

mentation for the remaining seven incidents fails to include

any information regarding the arrestees’ criminal history or

whether the arrestees did anything to create individualized

suspicion warranting a strip search.

[6] As the district court concluded, the reports the defen-

dant produced regarding the discovery of contraband during

strip searches consistently fail to provide any indication of the

charges of the searched individuals or the reason why they

were searched. Absent such evidence, it is impossible for us

to know whether or not eligible class members are contribut-

ing at all—much less in any significant way—to the contra-

band problem in the San Francisco jails. As such, we cannot

conclude that there is any reasonable relationship between the

criteria triggering a search (classification for housing) and the

interest in conducting the search (eliminating the introduction

of contraband).

[7] In sum, controlling precedent holds that blanket strip

searches of pre-arraignment detainees regardless of severity

of charge and without reasonable suspicion are unconstitu-

tional. The district court properly concluded that the evidence

tendered by Defendants was insufficient to distinguish this

case from our long line of precedent based on case-specific

circumstances.

8

In one incident contraband was found in an arrestee’s shoe, in the other

contraband was found in the arrestee’s mouth. Neither a search of a shoe

nor of the inside of a person’s mouth qualifies as a strip search.

11486 BULL v. CITY AND COUNTY OF SAN FRANCISCO

B

We turn next to the question of whether the right violated

by Defendants was clearly established at the time of the

search. See Saucier, 533 U.S. at 201. “The relevant, disposi-

tive inquiry in determining whether a right is clearly estab-

lished is whether it would be clear to a reasonable officer that

his conduct was unlawful in the situation he confronted.” Id.

at 202. In other words, the inquiry is whether a reasonable

person could have believed his actions lawful at the time they

were undertaken. Anderson v. Creighton, 483 U.S. 635, 646

(1987).

We have made clear that the responsibility for keeping

abreast of constitutional developments in criminal law falls

squarely on the shoulders of law enforcement officials.

“Given the power of such officials over our liberty, and some-

times even over our lives, this placement of responsibility is

entirely proper. Law enforcement officials must be cognizant

not only of how far their authority extends, but also of the

point at which their authority ends.” Ward, 791 F.2d at 1332.

[8] San Francisco’s challenged strip search policy was in

place until January 2004. Well before that time, as we have

discussed, it was clearly established in this Circuit that con-

ducting strip searches of pre-arraignment arrestees based

solely on the fact that they were assigned for transfer to the

general population was unconstitutional. We have consis-

tently required consideration of individual factors, such as

arrest charges, criminal history, and suspicious behavior, to

justify strip searches of pre-arraignment arrestees. Indeed, in

an unbroken line of precedent tracing back to 1984, we have

affirmed and reaffirmed the fundamental holding of Giles that

a strip search of a pre-arraignment detainee must be supported

by reasonable individualized suspicion. It was also abundantly

clear after Thompson that placement in the general jail popu-

lation “by itself cannot justify a strip search.” Thompson, 885

F.2d at 1447.

BULL v. CITY AND COUNTY OF SAN FRANCISCO 11487

[9] Moreover, we have explicitly stated several times that

it has been clearly established that strip search policies similar

to San Francisco’s are unconstitutional. In Ward, we con-

cluded that “the law was sufficiently clear in early 1981 so as

to expose a public official who unreasonably authorized blan-

ket strip searches of minor offense arrestees to civil liability

under 42 U.S.C. § 1983.” 791 F.2d at 1332 (emphasis added).

Although San Francisco’s policy included arrestees charged

with more serious offenses than those at issue in Ward, the

policy by definition also applied to minor offense arrestees,

such as those at issue in Ward. San Francisco’s policy

required strip searches of all arrestees who were classified for

transfer to the general population. Arrestees are “classified” if

they cannot post bail. Because some minor offenses do

require bail, any minor offense arrestee who was required to

post bail but was unable (or unable to post soon enough)

would be strip searched under San Francisco’s policy. As

Ward points out, we have long since established that strip

searches of such individuals, in absence of individualized sus-

picion, is unconstitutional.9

District courts in this circuit have also consistently recog-

nized that the law in this circuit has clearly established that

strip search policies like the one challenged here are unconstitu-

tional.10 See, e.g., Craft v. County of San Bernardino, 468

9

Again, in 1993 we reiterated:

At the time Appellants strip searched the Appellees, it was

clearly established in this circuit that it is unlawful to strip search

an arrestee brought to a jail facility on charges of committing a

minor offense, unless the officer directing the search possesses “a

reasonable suspicion that the individual arrestee is carrying or

concealing contraband.” Reasonable suspicion may be based on

“such factors as the nature of the offense, the arrestee’s appear-

ance and conduct, and the prior arrest record.”

Act Up!/Portland v. Bagley, 988 F.2d 868, 871-72 (9th Cir. 1993) (quot-

ing Giles, 746 F.2d at 617) (internal citations and footnote omitted).

10

Defendants cite Johannes v. Alameda County Sheriff’s Dept., 2006

WL 2504400, *12 (N.D. Cal. 2006) to argue that the state of the law in

11488 BULL v. CITY AND COUNTY OF SAN FRANCISCO

F.Supp.2d 1172, 1177 (C.D. Cal. 2006) (“At the outset, it is

worth noting that the Ninth Circuit has clearly recognized that

arrestees’ intermingling with other detained persons can

impact upon whether a given strip and/or visual body cavity

search is constitutionally permissible, but it cannot, by itself,

provide justification for such a search . . .”) (citing

Thompson, 885 at 1447); Wong v. Beebe, 2002 WL

31548486, *15 (D. Or. 2002)11 (“[W]ell before [arrestee’s]

strip and cavity search, it was clear that blanket strip search

policies are unconstitutional if justified by nothing more than

an arrest on suspicion of the commission of a felony or a

planned confinement in the general jail population.”) (citing

Kennedy, 901 F.2d at 713-15; Thompson, 885 F.2d at 1446-

47); Silvia v. Clackamas County, 2001 WL 34039482, *4 (D.

Or. 2001) (“Well before [arrestee’s] strip and cavity search,

it was clear that blanket strip search policies justified by noth-

ing more than arrest on suspicion of the commission of a fel-

ony or a planned confinement in the general jail population

are unconstitutional.”) (citing Fuller v. M.G. Jewelry, 950

F.2d 1437, 1445-46 (9th Cir. 1991); Kennedy, 901 F.2d at

713-15; Thompson, 885 F.2d at 1446-47).

Defendants argue that the large amount of documentary

evidence they have produced shows that the problem of

smuggled contraband is particularly acute in the San Fran-

cisco jails and thus distinguishes this case from others. Fur-

ther, defendants argue that because no other case has

this circuit was not clearly established. However, the district court opinion

in Johannes does not suggest that a policy such as San Francisco’s policy

might be constitutionally permissible. The Johannes court analyzed a strip

search policy as applied to an individual plaintiff and did not express an

opinion about the constitutionality of the policy on its face. The court con-

cluded that, among other factors, Johannes’ lengthy criminal history pro-

vided a valid basis for a strip search. Here, arrestees with similar criminal

histories are not included in the class.

11

In determining whether a particular right was clearly established, we

may also look to unpublished district court decisions. Sorrels v. McKee,

290 F.3d 965, 971 (9th Cir. 2002).

BULL v. CITY AND COUNTY OF SAN FRANCISCO 11489

confronted such a well-documented problem, even if San

Francisco’s policy was unconstitutional, the law was not

clearly established. In deciding whether the law was clearly

established, “[i]t is not necessary that the alleged acts have

been previously held unconstitutional, as long as the unlaw-

fulness [of the defendants’ actions] was apparent in light of

preexisting law.” Malik v. Brown, 71 F.3d 724, 727 (9th Cir.

1995). “Closely analogous preexisting case law is not

required to show that a right was clearly established.” White

v. Lee, 227 F.3d 1214, 1238 (9th Cir. 2000). The specific facts

of previous cases need not be materially or fundamentally

similar to the situation in question; rather, the salient question

is whether the state of the law at the time gives officials fair

warning that their conduct is unconstitutional. Hope v. Pelzer,

536 U.S. 730, 742 (2002).

[10] We have made it clear that in the Ninth Circuit strip

searches of pre-arraignment arrestees are unconstitutional in

the absence of reasonable individualized suspicion and that

reasonable suspicion requires consideration of factors such as

the nature of the offense, the arrestee’s appearance and con-

duct, and the arrestee’s criminal history. See, e.g., Act Up!,

988 F.2d at 871-72; Edgerly, 495 F.3d at 657. Moreover, we

have made it clear that placement in the general jail popula-

tion “by itself cannot justify a strip search.” Thompson, 885

F.2d at 1447. San Francisco’s policy was to strip search pre-

arraignment arrestees no matter how trivial the offense

charged and without reasonable suspicion solely because they

were to be classified for housing in the general population.

That such a blanket policy is a clear violation of the Constitu-

tion is clearly established by our precedent.

[11] The fact that San Francisco had documented a signifi-

cant problem of contraband smuggling does not muddy the

clarity of the law. The evidence Defendants produced to the

district court shows only that contraband smuggling was a

significant problem in San Francisco jails; it does not demon-

strate that persons eligible for inclusion in the class in this

11490 BULL v. CITY AND COUNTY OF SAN FRANCISCO

case contributed significantly, or even at all, to that problem.12

Therefore, San Franciso’s policy, and its justifications for that

policy, are not different enough from policies that we have

held unconstitutional, to suggest that the rights violated by

San Francisco’s policy were not clearly established. For these

reasons, Sheriff Hennessey is not entitled to qualified immu-

nity.

III

In conclusion we emphasize that our holding in no way pre-

vents correctional facilities from strip searching inmates

under permissible circumstances. Indeed, we do not today

even discuss the rights of those who are incarcerated after

having been convicted of a criminal offense. This case con-

cerns only pre-trial arrestees. Moreover, strip searches of

arrestees on the basis of their arrest for an offense involving

drugs, weapons, violence, or a violation of probation or

parole; criminal history involving drugs, weapons or violence

as specified by the district court; or another factor creating

individualized suspicion are not affected by our holding, as

these arrestees are excluded from the certified class. However,

a policy of strip searching arrestees based solely on their clas-

sification for housing in the general population violates the

arrestees’ clearly established constitutional rights, and we thus

affirm the district court’s denial of qualified immunity.

AFFIRMED.

IKUTA Circuit Judge, concurring:

I concur in the majority’s opinion with reluctance and

grave concern. While compelled by Ninth Circuit case law,

the disposition is in tension with Supreme Court precedent.

12

See supra Part II.A.

BULL v. CITY AND COUNTY OF SAN FRANCISCO 11491

Moreover, by disregarding the jail administrators’ urgent con-

cerns about a serious contraband smuggling problem, I agree

with the dissent that we are potentially putting lives in the San

Francisco detention system at risk.

A

In Bell v. Wolfish, the Court established basic principles for

analyzing the constitutionality of “restrictions and practices

that were designed to promote security and order” at a deten-

tion facility. 441 U.S. 520, 544 (1979). The Court made clear

that a detainee’s constitutional rights may be limited or

retracted to further the goal of “maintaining institutional

security and preserving internal order and discipline.” Id. at

546. Because of the fundamental importance of internal secur-

ity within a detention facility, “even when an institutional

restriction infringes a specific constitutional guarantee . . . the

practice must be evaluated in the light of the central objective

of prison administration, safeguarding institutional security.”

Id. at 546-47. Courts must accord “wide-ranging deference”

to the judgment of detention facility administrators “in the

adoption and execution of policies and practices that in their

judgment are needed to preserve internal order and discipline

and to maintain institutional security.” Id. at 547. Further, “in

the absence of substantial evidence in the record to indicate

that the officials have exaggerated their response to these con-

siderations, courts should ordinarily defer to their expert judg-

ment in such matters.” Id. at 548 (internal quotation marks

omitted).

Applying these principles to the petitioners’ Fourth

Amendment challenge, the Court upheld the detention facili-

ty’s policy of conducting a body-cavity search after a detainee

had a contact visit with a person outside the facility. The

Court made clear that a fact-intensive balancing test is neces-

sary to determine whether a practice is reasonable for Fourth

Amendment purposes:

11492 BULL v. CITY AND COUNTY OF SAN FRANCISCO

The test of reasonableness under the Fourth Amend-

ment is not capable of precise definition or mechani-

cal application. In each case it requires a balancing

of the need for the particular search against the inva-

sion of personal rights that the search entails. Courts

must consider [1] the scope of the particular intru-

sion, [2] the manner in which it is conducted, [3] the

justification for initiating it, and [4] the place in

which it is conducted.

Id. at 559 (bracketed numbers added). While acknowledging

that a body cavity search is intrusive, and that searches may

on occasion be conducted in an abusive fashion, the Court

focused primarily on the third and fourth factors: the unique

nature of a detention facility, which is “fraught with serious

security dangers,” id., and the central importance of maintain-

ing the institution’s security, which is a key principle in ana-

lyzing all constitutional challenges to detention facility

policies and practices, id. at 546-47. The Court then readily

concluded, after “[b]alancing the significant and legitimate

security interests of the institution against the privacy interests

of the inmates,” that the detention facility’s practice was rea-

sonable under the Fourth Amendment. Id. at 560.

In reaching this conclusion, the Court rejected the Second

Circuit’s analysis, which had focused on whether there was

sufficient evidence that detainees had smuggled contraband

into the facility. Because the administrators “proved only one

instance in the [detention facility’s] short history where con-

traband was found during a body-cavity search,” the Second

Circuit had held that the “gross violation of personal privacy

inherent in such a search cannot be outweighed by the govern-

ment’s security interest in maintaining a practice of so little

actual utility.” Id. at 558 (internal quotation marks omitted).

By contrast, the Court concluded that the lack of evidence of

actual contraband smuggling was of little import. Id. at 559.

BULL v. CITY AND COUNTY OF SAN FRANCISCO 11493

B

In this suit against the City and County of San Francisco,

Bell requires us to balance “the significant and legitimate

security interests of the institution” against the privacy rights

of the plaintiff class of pre-arraignment detainees. See id. at

560. As we have noted, the “intrusiveness of a body-cavity

search cannot be overstated. Strip searches involving the

visual exploration of body cavities is dehumanizing and

humiliating.” Kennedy v. Los Angeles Police Dept., 901 F.2d

702, 711 (9th Cir. 1990), abrogated on other grounds by

Hunter v. Bryant, 502 U.S. 224 (1991). On the other hand, as

correctly noted by the dissent, San Francisco has presented “a

compelling record of dangerous smuggling activity” indicat-

ing that there is a “pervasive problem that imposes a serious

security risk endangering both jail inmates and jail employ-

ees.” Dissent at 11498. San Francisco has emphasized that its

strip search policy is needed to help mitigate the smuggling

problems in the jail population. In considering whether the

policy was reasonable, we must defer to the judgment of the

jail administrators. See Bell, 441 U.S. at 547. If we did so, and

thereby followed the directive of the Supreme Court, we

would be compelled to uphold the strip search policy as rea-

sonable given the substantial evidence in the record illustrat-

ing the dire security needs facing the facility.

But Ninth Circuit precedent has wandered far from Bell, as

the dissent points out. Beginning in 1984 with Giles v. Acker-

man, 746 F.2d 614 (9th Cir. 1984), overruled on other

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

Cir. 1999) (en banc), we disregarded Bell’s direction to give

the detention facility administrator’s needs for “safeguarding

institutional security” exceptional weight in determining

whether a search policy is reasonable. See Bell, 441 U.S. at

547. Instead, we held that a strip search of an arrrestee for a

minor offense was not constitutionally reasonable unless jail

officials had a specific basis for suspecting that individual of

smuggling. Giles, 746 F.2d at 615. Rejecting the district

11494 BULL v. CITY AND COUNTY OF SAN FRANCISCO

court’s conclusions and giving effectively no deference to the

jail officials’ views, we held as a matter of law that strip

searches of all arrestees booked into the jail at issue were “not

necessary to protect the institution’s security interest,” and

that “arrestees charged with minor offenses may be subjected

to a strip search only if jail officials possess a reasonable sus-

picion that the individual arrestee is carrying or concealing

contraband.” Id. at 617.

Although Giles may have justified its conclusion on the

basis of appellate fact-finding specific to that case, i.e., that

the jail facility in that case did not present security concerns,

the Giles rule subsequently took on a life of its own. In Ken-

nedy we concluded that the LAPD’s policy of conducting a

strip search of all felony arrestees violated the Fourth Amend-

ment. 901 F.2d at 710-14. Rather than give due weight to the

LAPD’s concerns “for safety, security, and the proper admin-

istration of the jail system,” id. at 713 (internal quotation

marks omitted), we faulted the LAPD for failing to present

class-specific information, stating that a “glaring omission

from the LAPD’s justification is any documentation (or even

assertion) that felony arrestees have attempted to smuggle

contraband into the jail in greater frequency than misdemea-

nor arrestees.” Id. at 713. Because the LAPD failed to adduce

evidence regarding “the likelihood of the arrestee’s conceal-

ing drugs, weapons, or contraband,” id. at 714, we held that

the LAPD’s policy could not be “reasonably related to the

penal institution’s interest in maintaining security,” id. at 713.

Similarly, in Thompson v. City of Los Angeles, 885 F.2d

1439 (9th Cir. 1989), we considered the Los Angeles Coun-

ty’s policy to strip search all new admittees to the county jail,

and held that the reasonableness of the search depended on

whether a specific arrestee’s offense was “sufficiently associ-

ated with violence to justify a visual strip search.” Id. at 1447.

In so holding, we rejected the County’s institutional concerns

regarding placing individuals “into contact with the general

jail population,” stating as a matter of law that “such a factor

BULL v. CITY AND COUNTY OF SAN FRANCISCO 11495

by itself cannot justify a strip search” because “such intermin-

gling is ‘both limited and avoidable.’ ” Id. (quoting Giles, 746

F.2d at 618).

In each of these cases, we gave short shrift to Bell’s focus

on the centrality of institutional security concerns and to its

instruction to defer to detention facility officials’ judgment

“in the absence of substantial evidence in the record to indi-

cate that the officials have exaggerated their response to these

considerations.” Bell, 441 U.S. at 548 (internal quotation

marks omitted). Instead of balancing individual privacy con-

cerns against the “significant and legitimate security interests

of the institution,” id. at 560, we have focused almost exclu-

sively on the question whether detention facility administra-

tors have an adequate basis for suspecting that individuals

may be smuggling contraband. In doing so, we have essen-

tially adopted the rationale of the Second Circuit, rejected by

Bell, which gave controlling weight to the lack of specific evi-

dence of a smuggling problem. In sum, the Ninth Circuit’s

balancing test bears little relation to Bell’s.

C

Applying this circuit’s balancing test to the facts in this

case, we could uphold San Francisco’s blanket policy of strip

searching the plaintiff class of pre-arraignment detainees only

if San Francisco presented some basis for suspecting that

class of smuggling contraband. Because I agree with the

majority that San Francisco has not adduced evidence of con-

traband smuggling specific to the plaintiff class, and because

I am bound by circuit precedent, I must reluctantly concur in

the majority’s determination that the strip search policy was

unconstitutional. See Cerrato v. San Francisco Cmty. Coll.

Dist., 26 F.3d 968, 972 n.15 (9th Cir. 1994) (“In the absence

of an en banc reversal or an intervening Supreme Court deci-

sion . . . we are bound by circuit law.”). Moreover, because

our circuit precedent clearly mandates this result, I must also

11496 BULL v. CITY AND COUNTY OF SAN FRANCISCO

concur in the majority’s determination that Sheriff Hennessey

is not entitled to qualified immunity.

This result, however, ignores San Francisco’s warnings that

the smuggling problems in the San Francisco detention sys-

tem are grave. It also ignores the jail administrators’ determi-

nation that mandatory strip searches of all persons entering

the general jail population are needed to address this problem.

By effectively eliminating such security concerns from our

calculus, we contradict Supreme Court precedent and com-

mon sense and take upon ourselves a role unsuited for the

courts. As the Supreme Court noted, judges must guard

against the all-too-human tendency “to believe that their indi-

vidual solutions to often intractable problems are better and

more workable than those of the persons who are actually

charged with and trained in the running of the particular insti-

tution under examination.” Bell, 441 U.S. at 562. Because we

have dangerously substituted our judgment for the judgment

of jail administrators, a reconsideration of our case law is

urgently needed.

TALLMAN, Circuit Judge, dissenting:

Our ship has sailed far from the course charted by the

United States Supreme Court in Bell v. Wolfish, 441 U.S. 520

(1979). During the three-year period between April 2000 and

December 2003, the San Francisco Sheriff’s Department

(“San Francisco”) discovered over 1,000 items of contraband

smuggled into its general jail populations.1 In July 2005, an

1

The contraband was discovered during searches conducted by San

Francisco’s canine unit. Items found included: 662 pills of assorted con-

trolled substances; 106 shanks and weapons; 272 lighters and matches; 13

tattoo needles; 45 finds of rock cocaine (totaling 42.88 grams); 3 finds of

cocaine powder (totaling 2.75 grams); 10 finds of methamphetamine

(totaling 6.70 grams); 40 finds of marijuana (totaling 71.93 grams); 18

finds of heroin (totaling 6.24 grams and 6.79 milliliters); 24 gallons of

“pruno”; 4 hypodermic needles; and 4 ecstasy pills.

BULL v. CITY AND COUNTY OF SAN FRANCISCO 11497

inmate booked and classified at County Jail No. 9 died from

a cocaine overdose eleven days after he was transferred to

County Jail No. 2 for housing in the general population. The

inmate had been charged with felony domestic violence and

violating probation, and therefore was subject to a strip search

on admission to the booking facility under the Sheriff’s pol-

icy. There is no record that drugs were found on this inmate

during intake.

As the empirical evidence from jail operations now shows,

the underlying rationale for Ninth Circuit decisions in this

arena suffers from an inherent defect in basic logic. The

assumption is that arrestees booked for only minor or non-

violent offenses who will not be promptly released and must

be housed with the general inmate population are unlikely to

be carrying concealed contraband or dangerous weapons.

Experience teaches otherwise. The County’s2 smuggling prob-

lem is not isolated to those inmates booked for crimes involv-

ing drugs, weapons, or violence. The record is replete with

incidents of jail officials finding contraband during strip

searches of individuals arrested for “minor offenses”: public

drunkenness, public nuisance, loitering with intent to prosti-

tute, knowingly receiving stolen property, petty theft with a

prior offense, etc.3

2

I refer to the City and County of San Francisco collectively as “the

County.” Arrestees may include those taken into custody by law enforce-

ment agencies including the San Francisco Police Department and the

Sheriff’s Department.

3

Some of this information was taken from the record filed in a case

involving a similar challenge to the same strip search policy, Yourke v.

City and County of San Francisco, No. 06-16450. Yourke was dismissed

prior to oral argument for lack of jurisdiction. We granted San Francisco’s

motion to take judicial notice of portions of the Yourke record on appeal.

Accordingly, the record we now consider includes additional Sheriff’s

Department documents of smuggling incidents that supplement the Bull

record. Together, these records paint a bleak picture of responsible County

Jail officials struggling to adhere to ever stricter court decisions while

vainly trying to keep everyone safe from harm.

11498 BULL v. CITY AND COUNTY OF SAN FRANCISCO

We have never before been presented with such a compel-

ling record of dangerous smuggling activity. San Francisco

has demonstrated beyond cavil that the smuggling of drugs,

weapons, and other contraband into the general jail population

is a common and pervasive problem that imposes a serious

security risk endangering both jail inmates and jail employ-

ees. While acknowledging the existence of this evidence, the

majority extends Ninth Circuit restrictions and adopts a per se

rule requiring reasonable suspicion to strip search a pretrial

detainee transferred into the general population for housing

who does not otherwise meet the category of arrestees the

majority approves for strip-searching. But the newly-minted

rule runs contrary to Supreme Court precedent, impedes jail

administration, and further endangers the safety of jail

inmates and employees. Because I would conclude that San

Francisco’s policy of strip searching every arrestee transferred

into its general jail population for housing is reasonable under

the Fourth Amendment, I would find no constitutional viola-

tion from the strip search policy. I would also reverse the dis-

trict court’s denial of qualified immunity to Sheriff Michael

Hennessey. I therefore respectfully dissent.

I

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

considered the constitutionality of New York’s Metropolitan

Correctional Center’s (“MCC”) policy of strip searching

inmates following any contact visit with a person from out-

side the institution. Id. at 523, 528, 558-60. To support the

policy, “[c]orrections officials testified that visual cavity

searches were necessary not only to discover but also to deter

the smuggling of weapons, drugs, and other contraband into

the institution.” Id. at 558. During the policy’s “short history”

only one body-cavity search resulted in contraband being

found. Id.

The Supreme Court nevertheless “[b]alanc[ed] the signifi-

cant and legitimate security interests of the institution against

BULL v. CITY AND COUNTY OF SAN FRANCISCO 11499

the privacy interests of the inmates” and held that the “visual

body-cavity inspections . . . contemplated by the MCC rules

can . . . be conducted on less than probable cause.” Id. at 560.

Even though the Court could “not underestimate the degree to

which these searches may invade the personal privacy of

inmates,” it concluded that the institution’s compelling secur-

ity interests justified the invasion of personal rights that

resulted. Id. at 559-60. As the Court explains:

A detention facility is a unique place fraught with

serious security dangers. Smuggling of money,

drugs, weapons, and other contraband is all too com-

mon an occurrence. And inmate attempts to secrete

these items into the facility by concealing them in

body cavities are documented in this record, and in

other cases. That there has been only one instance

where an MCC inmate was discovered attempting to

smuggle contraband into the institution on his person

may be more a testament to the effectiveness of this

search technique as a deterrent than to any lack of

interest on the part of the inmates to secrete and

import such items when the opportunity arises.

Id. at 559 (citations omitted).

Subsequent to Bell, we have considered several other strip

search policies, yet at no time have we considered a record as

fully developed and complete as that provided by San Fran-

cisco in support of its policy. In Giles v. Ackerman, 746 F.2d

614 (9th Cir. 1984) (per curiam), overruled on other grounds

by Hodgers-Durgin v. de la Vina, 199 F.3d 1037, 1040 n.1

(9th Cir. 1999) (en banc), we held “that arrestees for minor

offenses may be subjected to a strip search only if jail offi-

cials have a reasonable suspicion.” Id. at 615. The Giles panel

purported to follow Bell by claiming to balance “the security

needs of [the] local jail facilities against the privacy interests

of arrestees charged with minor offenses.” Id. at 617. Unlike

Bell, however, Giles concluded that the Idaho county failed to

11500 BULL v. CITY AND COUNTY OF SAN FRANCISCO

demonstrate that its security interests justified the serious

invasion of privacy created by its policy. Id. at 617.

The record reveals that the incidence of smuggling

activity at the Bonneville County Jail is minimal.

Evidence before the trial court indicates that of

approximately 3,500 persons searched at the jail in

the preceding 18-month period, only eleven persons

had concealed anything that warranted a report,

including the concealment of cigarettes. [The

county] cite[d] as significant only one discovery in

the course of 3,500 strip searches: a knife was found

cradled in the small of the back of an arrestee. [The

county] also cite[d] two instances from other parts of

the country (California and Mississippi) in which

matches were concealed on the person of detainees.

Id.

Based on the Idaho record, we also concluded that there

was no sign “whatsoever that the County’s strip search policy

could or did have any deterrent effect.” Id. We noted that “ar-

rest and confinement in the Bonneville County Jail are

unplanned events, so the policy could not possibly deter

arrestees from carrying contraband.” Id. Based on this record,

we rejected the county’s argument that the search was justi-

fied by the fact that Giles had been placed in the general jail

population. Id. at 618-19 (“[The county’s] heavy reliance on

the intermingling of its temporary detainees with the general

[jail] population is misplaced . . . because such intermingling

is both limited and avoidable.” (internal quotation marks

omitted; second alteration in original)).

We reached a similar conclusion in Kennedy v. Los Angeles

Police Department, 901 F.2d 702 (9th Cir. 1990), abrogated

on other grounds by Hunter v. Bryant, 502 U.S. 224 (1991)

(per curiam). There, we found unconstitutional the Los Ange-

les Police Department’s (“LAPD”) policy subjecting all

BULL v. CITY AND COUNTY OF SAN FRANCISCO 11501

arrestees on suspicion of having committed a felony to a strip

search, whether or not they were transferred to the general jail

population. Id. at 710, 713-14. We found no justification for

treating felony arrestees any differently than misdemeanor

arrestees, who were subject to a strip search only upon rea-

sonable suspicion. Id. at 714. There was simply no reasonable

relationship between the strip search and the LAPD’s alleged

security needs because the LAPD failed to provide “any docu-

mentation (or even assertion) that felony arrestees have

attempted to smuggle contraband into the jail in greater fre-

quency than misdemeanor arrestees.” Id. at 713.

The majority cites Giles as well as Thompson v. City of Los

Angeles, 885 F.2d 1439, 1447 (9th Cir. 1989), for the proposi-

tion that contact with the general jail population itself can

never justify a strip search. Maj. Op. at 11481-83. However,

neither case addressed a record as persuasive as that presented

by San Francisco, and both cases based their holdings on sep-

arate legal grounds, making their broad pronouncements

dicta. As discussed supra, our prior holding in Giles was

based primarily on the Bonneville County Jail’s failure to pro-

vide evidence to prove it had security concerns that warranted

such a severe invasion of privacy. See 746 F.2d at 617. With-

out a full and complete record, we were in no position to

determine as a matter of law that placement in a general jail

population could never by itself justify a strip search. “Where

it is clear that a statement is made casually and without analy-

sis, where the statement is uttered in passing without due con-

sideration of the alternatives, or where it is merely a prelude

to another legal issue that commands the panel’s full atten-

tion,” such a statement may be considered dicta. United States

v. Johnson, 256 F.3d 895, 915 (9th Cir. 2001) (en banc) (Koz-

inski, J.); cf. United States v. Ingham, 486 F.3d 1068, 1078

n.8 (9th Cir. 2007) (concluding that the court’s decisions on

ex post facto principles was not dicta when the court provided

a “careful three-page” analysis). The same holds true for our

analysis in Thompson. With absolutely no discussion of the

record, we cited Giles and simply stated that “contact with the

11502 BULL v. CITY AND COUNTY OF SAN FRANCISCO

general jail population . . . by itself cannot justify a strip

search.” Thompson, 885 F.2d at 1447. However, that state-

ment was not central to our holding, see Sanchez v. Mukasey,

521 F.3d 1106, 1110 (9th Cir. 2008) (discussing what consti-

tutes dictum), as we went on to conclude that the city’s search

in Thompson was nevertheless justified by reasonable suspi-

cion. See Thompson, 885 F.2d at 1447.4

Now, with a full and complete record, we are squarely con-

fronted with the question of whether transfer into the general

jail population alone can justify a strip search.5 Never has the

Supreme Court required reasonable suspicion of weapons or

contraband to justify a strip search of pretrial detainees bound

4

Contrary to the majority’s statement, I do not contend that the follow-

ing holding in Giles is dicta: “arrestees for minor offenses may be sub-

jected to a strip search only if jail officials have a reasonable suspicion

that the particular arrestee is carrying or concealing contraband or suffer-

ing from a communicable disease.” See Maj. Op. 11480-81 n.6. Although

I may have decided Giles differently, I nevertheless respect the decision’s

precedential value. Unlike the majority, however, I think the panel in Giles

unnecessarily went beyond the question presented when it stated that con-

tact with the general jail population alone can never justify a strip search.

This was a blanket conclusion without any analysis. Without a full and

complete record the court could not give due consideration to the issue.

Whether contact with the general jail population alone can ever justify a

strip search when the County here has trenchantly documented a pervasive

smuggling problem therefore remains an open question.

5

I must emphasize that San Francisco’s policy did not require the strip

search of every arrestee brought into County Jail No. 9. San Francisco’s

policy required only the search of those inmates who were classified for

housing and were going to be transferred into the general jail population.

Therefore, the other cases relied on by the majority are similarly distin-

guishable as they do not involve arrestees subsequently transferred to the

general population for housing. See Ward v. County of San Diego, 791

F.2d 1329, 1333 (9th Cir. 1985) (finding unconstitutional a blanket strip

search policy that allowed officials to search a detainee before a determi-

nation was made that she could be released on her own recognizance); Act

Up!/Portland v. Bagley, 988 F.2d 868, 871-72 (9th Cir. 1993) (holding

that it was clearly established law as of 1989 that “it is unlawful to strip

search an arrestee brought to a jail facility on charges of committing a

minor offense”).

BULL v. CITY AND COUNTY OF SAN FRANCISCO 11503

for the general prison population.6 See Bell, 441 U.S. at

559-60; see also Evans v. Stephens, 407 F.3d 1272, 1278-79

(11th Cir. 2005) (en banc); id. at 1285-86 (Carnes, J., spe-

cially concurring). While other circuits have held that transfer

into the general population on a misdemeanor charge without

more is insufficient to justify a strip search, see Evans, 407

F.3d at 1285 (Carnes, J., specially concurring) (collecting

cases),7 at least one of those circuits has openly questioned its

reasoning.

In Evans, the Eleventh Circuit went en banc to address its

case law holding that “[a]rrestees who are to be detained in

the general jail population can constitutionally be subjected to

a strip search only if the search is supported by reasonable

suspicion that such a search will reveal weapons or contra-

band.” Id. at 1278 (internal quotation marks omitted).

Because the en banc court decided the case on other grounds,

it never reached that question. Id. Nevertheless, it found the

need to state: “Most of us are uncertain that jailers are

required to have a reasonable suspicion of weapons or contra-

band before strip searching—for security and safety purposes

—arrestees bound for the general jail population.” Id. As dis-

cussed in more detail infra, Judge Carnes, joined by Judges

Dubina and Hull, elaborated further on this view in a special

concurrence.

There is no dispute that in addressing the constitutionality

6

Indeed, that was the basis for Justice Powell’s dissent in Bell. See 441

U.S. at 563 (Powell, J. dissenting) (“I join the opinion of the Court except

the discussion and holding with respect to body-cavity searches. In view

of the serious intrusion on one’s privacy occasioned by such a 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.”).

7

I recognize that Evans cites our decision in Giles as standing for such

a proposition. However, as noted above, Giles’s statement regarding the

transfer of inmates into the general population is dictum and not binding

precedent.

11504 BULL v. CITY AND COUNTY OF SAN FRANCISCO

of this particular policy, we must “balanc[e] . . . the need for

the particular search against the invasion of personal rights

that the search entails.” Thompson, 885 F.2d at 1445. The pre-

vention of the introduction of weapons or other contraband

into jail facilities is an extremely weighty governmental inter-

est. Id. at 1446; see also Bell, 441 U.S. at 547, 559-60 (pre-

vention of smuggling of drugs, weapons, and other

contraband is a significant and legitimate prison security

interest); Evans, 407 F.3d at 1289 (discussing how smuggling

of contraband undermines jail security). In Evans, Judge Car-

nes discussed at length expert testimony provided in Dodge v.

County of Orange, 282 F. Supp. 2d 41 (S.D.N.Y. 2003),

remanded on other grounds, 103 Fed. Appx. 688 (2d Cir.

2004), a case addressing the constitutionality of a policy

requiring all pretrial detainees to be strip searched upon

admission to the county jail.8 In Dodge, both sides’ experts

agreed that “ ‘one of the primary objectives of any correc-

tional facility must be to prevent the introduction of “contra-

band” into a correctional facility due to the dangers that

contraband presents in a correctional setting.’ ” Evans, 407

F.3d at 1289 (quoting Dodge, 282 F. Supp. 2d at 46).

“ ‘Prison administrators therefore should be accorded wide-

ranging deference in the adoption and execution of policies

and practices that in their judgment are needed to preserve

internal order and discipline and to maintain institutional

security.’ ” Id. at 1289-90 (quoting Bell, 441 U.S. at 547).

8

Bound by Second Circuit precedent, the district court in Dodge ulti-

mately concluded that the strip search policy of the Orange County Cor-

rectional Facility in New York was unconstitutional. Nevertheless, the

district court felt obliged to record its disagreement with Second Circuit

precedent noting that the record in the Dodge case demonstrated that jail

administrators “face very real potential security concerns from any new

arrival.” 282 F. Supp. 2d at 82. The court went on to state that it was hard

for it “to articulate a principled reason why an inmate cannot be strip

searched without reasonable suspicion of contraband carriage when he

arrives at [the Orange County Correctional Facility] but can lawfully be

strip searched after a court date or during a cell shakedown on ‘less than

probable cause.’ ” Id. (citing Bell, 441 U.S. at 560).

BULL v. CITY AND COUNTY OF SAN FRANCISCO 11505

San Francisco has sufficiently demonstrated that smuggling

of contraband has resulted in a serious risk to inmates and jail

employees. The County discovered over 1,000 items of con-

traband during a three-year period starting in 2000. An inmate

died from a drug overdose apparently after he procured the

drug inside the jail. To further illustrate the problem, I detail

some of the incidents described in the record:

• April 29, 2000: Officials found a white “rock

like” object the size of a marble between the but-

tocks of a man arrested for obstructing a peace

officer, driving under the influence, and a parole

violation. The inmate grabbed and swallowed the

object, requiring a trip to the emergency room.

• August 1, 2001: Officials found a bag filled with

an unknown type of white pills in the mouth of

a woman arrested for shoplifting and on a war-

rant for forgery.

• August 10, 2001: Officials found a plastic baggie

containing several off-white rocks individually

wrapped in plastic in the buttocks area of a man

arrested for public drunkenness.

• June 23, 2002: Officials found a plastic bag con-

taining white powder inside the vagina of a

women arrested for receiving stolen property.

• January 15, 2003: Officials found a syringe con-

taining 20 cc’s of brown liquid in the anus of a

man arrested for a parole violation.

• November 29, 2003: Officials found a syringe in

the vagina of a female inmate arrested on an out-

of-county warrant for drunk driving.

11506 BULL v. CITY AND COUNTY OF SAN FRANCISCO

• December 29, 2003: Officials found a crack pipe

and case in the vagina of a woman arrested for

traffic violations.9

The majority struggles mightily to discount this record,

stating that there is no clear documentation proving a smug-

gling incident by an arrestee that would qualify as a member

of the Plaintiffs’ class. Maj. Op. 11483-85. The question in

Bell, however, was not whether the individual security risk of

one particular person warranted a search, but whether the

security risks of an entire institution justified the jail’s policy.

On this record, the majority cannot deny that San Francisco

faces an extensive smuggling problem. It nevertheless

assumes that San Francisco can remedy the smuggling prob-

lem, and overcome the security risks that problem creates,

without strip searching any member of Plaintiffs’ class even

though each class member is to be commingled with the gen-

eral jail population. With all due respect to my colleagues, the

fallacy of the assumption on which that conclusion is based

will endanger the safety of future inmates and jail employees.

As Judge Carnes explains in his special concurrence, and

as this record so forcefully demonstrates, the security risk to

jail facilities exists whether the inmate was arrested on a mis-

demeanor or a felony, or whether the inmate has a criminal

history or no prior record. Evans, 407 F.3d at 1291 (Carnes,

J., specially concurring). “ ‘[O]fficials at a county jail . . . usu-

ally know very little about the new inmates they receive or the

security risk they present at the time of their arrival.’ ” Id.

(second alteration in original) (quoting Dodge, 282 F. Supp.

2d at 38). Moreover, there is no doubt that gang affiliation of

9

This list provides but a small sample of the twenty-eight incidents set

forth in the combined record of which we have taken judicial notice. See

supra n. 3. The location of the contraband items—whether it be in the

shoe, mouth, vaginal or anal cavity of the inmate being searched, see maj.

op. 11485 & n.8—does not change the fact that San Francisco faces a seri-

ous smuggling problem and the problem is not isolated to those offenders

arrested for crimes involving drugs, weapons, or violence.

BULL v. CITY AND COUNTY OF SAN FRANCISCO 11507

inmates is a serious security risk. Id. at 1289. Statistics of

inmate gang affiliation in San Francisco County Jails are not

provided in this record, but as an example, “[a]t the county

jail involved in the Dodge case there were at least fifty gang

members being held on any given day.” Id. “ ‘Gang members

are often more violent, dangerous, and manipulative than

other inmates, regardless of the nature of the charges against

them. They are also more likely than other inmates to attempt

to coerce family members or to coerce, cajole, or intimidate

lesser violators into smuggling contraband into the facility.’ ”10

Id. (alteration omitted) (quoting Dodge, 282 F. Supp. 2d at

48).

Inmates returning from a court appearance outside the jail

pose the same risk to the general jail population upon return

as do new arrestees coming in from the outside. The majori-

ty’s failure to recognize the current smuggling problem and

acknowledge the lengths that determined criminals will go to

smuggle contraband and weapons inside a jail or prison

merely highlights why the Supreme Court has continually told

us to give special deference to jail house administrators where

safety and security concerns are at issue. See, e.g., Bell, 441

U.S. at 562.

We must also consider the far ranging implications of the

majority’s rule on county jails located throughout our circuit.

San Mateo County Sheriff Don Horsley and the County of

San Mateo (“Amici”), defendants in another pending class

action lawsuit in the United States District Court, Northern

10

This evidence undermines the limited reasoning provided in Giles. See

746 F.2d at 617 (stating that “arrest and confinement in the Bonneville

County Jail are unplanned events, so the policy could not possibly deter

arrestees from carrying contraband”). We now know that inmates will go

to great lengths to get contraband into jail facilities, where the contraband

may be worth more than it is on the street. Therefore, a policy that requires

jail officials to strip search every transferee into the general jail population

will have more of a deterrent affect than the limited search policy our pre-

cedent now permits.

11508 BULL v. CITY AND COUNTY OF SAN FRANCISCO

District of California, filed an amicus brief in support of San

Francisco. Amici also had a policy of strip searching every

arrestee who was going to be housed in San Mateo County’s

general jail population.11 For a five-month period in 2004,

Amici seized forty-one items of contraband found during strip

searches conducted in San Mateo County Jails. Items confis-

cated as a result of these strip searches included the following:

a hypodermic needle secreted in an arrestee’s buttocks; a

razor blade found in a woman’s bra; a pocket knife found in

a woman’s bra; a small bag containing methamphetamine

inside a woman’s bra; suspected heroin secreted between an

inmate’s buttocks; and suspected methamphetamine secreted

between an inmate’s buttocks.

This evidence proves jail officials need greater flexibility

than Ninth Circuit jurisprudence permits to adequately

address the security risks they face in safely running county

lockups. San Francisco, San Mateo, and other county jails

across the country have not exaggerated the need for strip

searches. The Supreme Court has told us that an inmate’s con-

stitutional rights must yield to the legitimate penological and

safety concerns of the institution which houses commingled

pretrial detainees with sentenced prisoners. See Bell, 441 U.S.

at 547. By failing to give sufficient weight to the security risk

posed by the smuggling of contraband into jail facilities, the

majority has neglected to follow the Court’s directive to bal-

ance an institution’s security interests against the privacy

intrusion that undoubtedly takes place as a result of the intru-

sive search. See id. at 546-47.

Ninth Circuit jurisprudence has deviated far off the course

the Supreme Court has charted. Because San Francisco has

demonstrated that it faces a pervasive smuggling problem that

can only be mitigated by a policy requiring the search of

11

Sometime in 2003, in response to adverse judicial rulings, Amici

changed their strip search policy so that only arrestees charged with

crimes involving drugs, violence, or weapons are strip searched.

BULL v. CITY AND COUNTY OF SAN FRANCISCO 11509

every arrestee transferred for housing among the County’s

general jail population, I would hold that San Francisco’s jus-

tified safety interest outweighs the privacy intrusion caused

by such a search. It was reasonable under the Fourth Amend-

ment and resulted in no constitutional violation under the first

prong of Saucier v. Katz, 533 U.S. 194 (2001).

II

I also disagree with the majority’s conclusion regarding the

second prong of the qualified immunity inquiry, whether, in

light of clearly established law, a reasonable officer could

have known his/her conduct was unlawful. See id. at 201-02.

To answer this question we must determine “whether [Sheriff

Hennessey] could . . . have reasonably but mistakenly

believed that his . . . conduct did not violate a clearly estab-

lished constitutional right.” Jackson v. City of Bremerton, 268

F.3d 646, 651 (9th Cir. 2001).

“[R]easonableness under the Fourth Amendment is not

capable of precise definition or mechanical application.” Bell,

441 U.S. at 559. “We must therefore balance the security

needs of local jail facilities against the privacy interests of

arrestees charged with minor offenses to determine what

objective standard authorizes strip searching of arrestees.”

Giles, 746 F.2d at 617; see also Savard v. Rhode Island, 338

F.3d 23, 29 (1st Cir. 2003) (“The constitutional line that sepa-

rates permissible from impermissible uses of these methods is

imprecise and context-specific . . . . [P]lotting that line

requires a determination of what is reasonable under a given

set of circumstances.”).

Prior to today’s decision, we would balance the security

interest of the individual jail facility against the privacy inter-

ests of its arrestees. See Kennedy, 901 F.2d at 714 (concluding

that the LAPD failed to provide sufficient documentation to

justify its policy of strip searching every felony arrestee);

Giles, 746 F.2d at 617 (holding the arrestees’ privacy interests

11510 BULL v. CITY AND COUNTY OF SAN FRANCISCO

outweighed Bonneville County Jail’s security interests as the

record demonstrated that smuggling activity at that local jail

was minimal). Today’s ruling adopts a dangerous per se rule

notwithstanding the proven security needs of San Francisco

County Jails. When people are dying as a result of our errant

jurisprudence, it is time to correct the course of our law.

The contours of an arrestee’s Fourth Amendment right

when he or she is transferred into a jail’s general population

is debatable among reasonable jurists. Because there was no

clearly established law on this issue, and because San Fran-

cisco provided a record sufficient to distinguish this case from

our prior cases, I would hold that Sheriff Hennessey and his

department lacked “fair warning” that San Francisco’s policy

violates the Fourth Amendment. We should reverse the dis-

trict court’s order denying qualified immunity to Sheriff

Michael Hennessey.

I respectfully dissent.