Bull v. City and County of San Francisco

Volume 1 of 2

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,

Plaintiffs-Appellees, No. 05-17080

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.



2237

2238 BULL v. SAN FRANCISCO

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.



Appeals from the United States District Court

for the Northern District of California

Charles R. Breyer, District Judge, Presiding

Argued March 26, 2009

Submitted April 10, 2009

San Francisco, California

Filed February 9, 2010

Before: Alex Kozinski, Chief Judge, Pamela Ann Rymer,

Sidney R. Thomas, Susan P. Graber, Kim McLane Wardlaw,

Ronald M. Gould, Marsha S. Berzon, Johnnie B. Rawlinson,

Richard R. Clifton, Sandra S. Ikuta, and N. Randy Smith,

Circuit Judges.

Opinion by Judge Ikuta;

Concurrence by Chief Judge Kozinski;

Concurrence by Judge Graber;

Dissent by Judge Thomas

2242 BULL v. SAN FRANCISCO

COUNSEL

Dennis J. Herrera and Danny Chou, City Attorneys; Joanne

Hoeper, Chief Trial Attorney; and David B. Newdorf (argued)

and Robert A. Bonta, Deputy City Attorneys, for the appel-

lants.

Mark 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

IKUTA, Circuit Judge:

The San Francisco Sheriff’s Department oversees six

county jails in the San Francisco Bay Area, through which

approximately 50,000 individuals are booked and processed

BULL v. SAN FRANCISCO 2243

each year. To address a serious problem of contraband smug-

gling in the jail system, Sheriff Michael Hennessey instituted

a policy requiring the strip search of all arrestees who were

to be introduced into San Francisco’s general jail population

for custodial housing. In a class action lawsuit challenging

this policy on its face, a district court held that it violated the

Fourth Amendment rights of the persons searched, and denied

Sheriff Hennessey qualified immunity. Hennessey, the San

Francisco Sheriff’s Department, and the City and County of

San Francisco brought this interlocutory appeal, challenging

the denial of qualified immunity.1 A divided panel of this

court affirmed the district court’s denial, Bull v. City &

County of San Francisco, 539 F.3d 1193 (9th Cir. 2008), and

we granted rehearing en banc. Because we conclude that San

Francisco’s policy did not violate plaintiffs’ constitutional

rights, we reverse the district court’s denial of Sheriff Hen-

nessey’s motion for summary judgment based on qualified

immunity, and in doing so necessarily reverse the district

court’s grant of plaintiffs’ motion for partial summary judg-

ment as to Fourth Amendment liability.

I

“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.” Bell v.

Wolfish, 441 U.S. 520, 559 (1979). Indeed, “attempts to intro-

duce drugs and other contraband into [prison] premises . . . is

one of the most perplexing problems of prisons.” Hudson v.

Palmer, 468 U.S. 517, 527 (1984); see Overton v. Bazzetta,

539 U.S. 126, 134 (2003) (“Drug smuggling and drug use in

prison are intractable problems.”); Block v. Rutherford, 468

U.S. 576, 588-89 (1984) (“We can take judicial notice that the

unauthorized use of narcotics is a problem that plagues virtu-

1

We refer to Sheriff Hennessey, the Sheriff’s Department, and the City

and County of San Francisco by name when appropriate, and otherwise

refer to defendants collectively as “San Francisco.”

2244 BULL v. SAN FRANCISCO

ally every penal and detention center in the country.”). San

Francisco’s six county jails are no exception: They struggle

with a serious, ongoing problem of drugs, weapons, and other

contraband being smuggled into jail facilities. The record con-

tains hundreds of pages of incident reports, indicating that

between April 2000 and December 2003, searches of the San

Francisco general jail population resulted in the discovery of

1,574 items of contraband, including 662 assorted controlled

substance pills, 106 shanks and other weapons, 1 screwdriver,

17 jail-made handcuff keys, 42.88 grams of rock cocaine,

2.75 grams of powder cocaine, 6.70 grams of methamphet-

amine, 6.24 grams of tar heroine, 71.93 grams of marijuana,

4 ecstasy pills, 32 assorted pipes, 1 hypodermic needle, and

24 gallons of homemade alcohol known as “Pruno.” The pres-

ence of such contraband threatens the health and safety of

inmates, corrections officers, and jail employees. The record

contains reports of the death of an inmate housed in the gen-

eral population from drugs obtained within the prison, and of

one detainee who set her clothes on fire with a lighter smug-

gled into the cell, of another who mutilated himself with sta-

ples similarly secreted into the jail, and of a third who

attempted suicide with razor-blades smuggled into the jail in

his rectal cavity. The jail administrators have concluded that,

based on their experience, “the greatest opportunity for the

introduction of drugs and weapons into the jail occurs at the

point when an arrestee is received into the jail for booking

and, thereafter, housing.” In light of this conclusion, Sheriff

Hennessey developed and implemented a “Booking Searches”

policy. This policy authorized officers to strip search an

arrestee when any one of eleven conditions applied, including

the condition at issue here, namely, when “[a] person [was]

assigned a custody level by Classification and scheduled for

custodial housing.”

Plaintiffs’ facial challenge to the Booking Searches policy

is the only issue before us in this interlocutory appeal. This is

an important point, because the dissent draws upon unproven

allegations to give a shocking and inflammatory account of

BULL v. SAN FRANCISCO 2245

mistreatment by jail officials, including forcible strip searches

conducted in an abusive and violent manner. The dissent’s

sensationalist account of individual factual allegations is

worse than irrelevant, as it invites us to decide this case on the

basis of disputed factual issues not yet presented by the par-

ties, not yet considered by the district court, and not yet

weighed by a jury. San Francisco has vigorously denied the

allegations the dissent recites. Nevertheless, if true, these alle-

gations are quite serious, even absent the dissent’s embellish-

ments.2 Such abuses would contravene San Francisco’s

written policy, which required that searches be conducted in

a “professional manner,” and prohibited officers of the oppo-

site sex to be present. If these allegations were found to be

true, the victims of those abuses would have strong claims

against San Francisco.

But the plaintiffs are not making such claims. Plaintiffs

emphasized throughout their briefing that they “brought this

action to challenge the blanket policy and practice of search-

ing prearraignment arrestees . . . ,” not the individual cases.

Thus, plaintiffs relied “almost exclusively on defendants’

depositions and written policies as the basis of the material

facts” in order to avoid disputed issues of fact that would

defeat summary judgment.

For purposes of this narrow appeal, we are called upon to

assess the constitutionality of the policy itself, not violations

of that policy; thus, as did the district court, we must assume

the challenged policy was followed scrupulously.

Although the dissent’s dramatic accounts stir the emotions,

they are misleading and ultimately irrelevant to the case

before us. Not a single one of the long parade of victims

described by the dissent—Mary Bull, Charli Johnson, Bernie

2

There is no doubt, as the Court stated in Bell, that “on occasion a secur-

ity guard may conduct the search in an abusive fashion,” and “[s]uch an

abuse cannot be condoned.” 441 U.S. at 560.

2246 BULL v. SAN FRANCISCO

Galvin, Michael Marron, Laura Timbrook, Salome Mangos-

ing, Leigh Fleming, Michelle De Ranleau, or Deborah Flick

—have claims at issue in this appeal.3 Rather than highlight

the dramatic individual anecdotes that can be mined from the

record, we limit our discussion to the issue actually before us:

plaintiffs’ challenge to the jail’s written strip-search policy.

We leave other, factual questions to be addressed by the dis-

trict court in the first instance.

A

During the period at issue, new arrestees entering the San

Francisco County jail system were transported to County Jail

No. 9, a temporary intake and release facility, where they

were pat-searched, scanned with a metal detector, booked into

the system, and fingerprinted. The arrestees were then placed

in holding cells. Those eligible to post bail were given access

to a telephone and afforded up to 12 hours to secure their

release on bond. Individuals arrested because of intoxication

were released when they became sober. Arrestees who were

statutorily eligible were cited and released. See Cal. Penal

3

The claims of each of these individuals have been judicially resolved

in some manner, and are not on appeal here. For example, the district court

recognized that “substantial evidence in the record” supported a finding

that “reasonable suspicion existed to strip search” Bull and Mangosing,

and thus denied summary judgment to them on their individual claims.

Plaintiffs conceded that all of Johnson’s claims were time-barred, and did

not oppose summary judgment in San Francisco’s favor. San Francisco

did not oppose summary judgment in favor of Timbrook. The district court

granted summary judgment in favor of Sheriff Hennessey on the claims

of Fleming and Flick, who were searched, like Bull and Mangosing, only

pursuant to the “safety cell” policy. Under this policy, inmates or arrestees

“were subjected to blanket visual body cavity search(es) incident to place-

ment in a ‘safety cell’ at any of the San Francisco County jails.” The dis-

trict court held that Sheriff Hennessey had qualified immunity from

challenges to that policy. Galvin, Marron, and De Ranleau are not even

plaintiffs in this action, and, accordingly, are never mentioned in plain-

tiffs’ summary-judgment papers; they appear in a proposed Second

Amended Complaint, which was rejected by the district court.

BULL v. SAN FRANCISCO 2247

Code § 853.6. None of these arrestees was strip searched

under the challenged policy.

Because County Jail No. 9 is a temporary intake facility

equipped with holding cells but no beds, those arrestees not

eligible for release were transported to a jail with housing

facilities. Arrestees were then transferred into the facility’s

general jail population, which included pretrial detainees and

convicted inmates. Pursuant to the Booking Searches policy,

these individuals were strip searched prior to admission into

the general population in order to prevent the smuggling of

contraband into the facilities.

Under the policy, a strip search was to be performed “in a

professional manner in an area of privacy” by an officer of the

same sex as the arrestee. The arrestee was required “to

remove or arrange some or all of his or her clothing so as to

permit a visual inspection of the underclothing, breasts, but-

tocks or genitalia of such person.” The search included “a

visual inspection of the mouth, ears, hair, hands, skin folds,

[and] armpits as well as a thorough search of all clothing

items.” San Francisco Sheriff’s Dep’t Proc. No. E-03, E-03(III).4

4

The written policy instructions for conducting strip searches stated:

1. Strip searches include a visual body cavity search. A strip

search does not include a physical body cavity search.

2. The search will be conducted in a professional manner in an

area of privacy so that the search cannot be observed by per-

sons not participating in the search.

3. The searching officer will instruct the arrestee to:

a. Remove his/her clothing.

b. Raise his/her arms above their head and rotate 360

degrees.

c. To bend forward and run his/her hands through his/her

hair.

d. To turn his/her head first to the left and then to the right

so the searching officer can inspect the arrestee’s ear ori-

fices.

2248 BULL v. SAN FRANCISCO

The policy authorized a visual search only; officers were not

allowed to physically touch inmates’ body cavities.

Strip searches conducted under the Booking Searches pol-

icy uncovered significant amounts of contraband hidden in

and on arrestees’ bodies. For example, as noted by the district

court, San Francisco “produced evidence that from April 2000

through April 2005 strip searches at County Jail No. 9

resulted in the discovery of 73 cases of illegal drugs or drug

paraphernalia hidden in body cavities.” Contraband discov-

ered in arrestees’ body cavities included handcuff keys,

syringes, crack pipes, heroin, crack-cocaine, rock cocaine, and

marijuana. In the same time period, strip searches uncovered

various concealed weapons, including a seven-inch folding

knife, a double-bladed folding knife, a pair of 8-inch scissors,

a jackknife, a double-edged dagger, a nail, and glass shards.

Jail officials found contraband on arrestees charged with a

range of offenses, including non-violent offenses such as pub-

lic drunkenness, public nuisance, and violation of a court

order. For example, a man arrested on a warrant for public

nuisance was found smuggling a plastic bag of suspected

cocaine powder. The parties dispute whether any discovery of

contraband can be conclusively tied to class members, but, as

e. To open his/her mouth and run his/her finger over the

upper and lower gum areas; then raise his/her tongue so

the officer can inspect the interior of the arrestee’s

mouth. Remove dentures if applicable.

f. To turn around and raise first one foot, then the other so

the officer can check the bottom of each foot.

4. The searching officer will visually inspect the arrestee’s

breasts, buttocks, and genitalia.

5. The searching officer will thoroughly search the arrestee’s

clothing, underclothing, shoes, and socks.

6. At the completion of the search, the searching officer will

instruct the arrestee to dress.

BULL v. SAN FRANCISCO 2249

discussed below, a resolution of this dispute is not material to

our holding today.

B

In April 2003, Mary Bull and a class of similarly situated

plaintiffs filed a class action complaint under 42 U.S.C.

§ 1983 in district court against the City and County of San

Francisco, the Sheriff’s Department, Sheriff Hennessey in his

individual and official capacities, and certain unnamed Sher-

iff’s deputies. Plaintiffs alleged that San Francisco’s strip

search policy violated their Fourth Amendment right to be

free from unreasonable searches and their Fourteenth Amend-

ment rights to due process and privacy.5

In an order issued June 10, 2004, the district court granted

plaintiffs’ motion to certify a class under Federal Rule of

Civil Procedure 23(b)(3) and defined the class as including all

persons who “were arrested on any charge not involving

weapons, controlled substances, 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 sus-

picion that they were concealing contraband.”6

In June 2005, plaintiffs moved for partial summary judg-

ment on their claims that San Francisco’s former strip search

policy was facially unconstitutional with respect to members

5

Plaintiffs also alleged violations of certain provisions of California law

that are not at issue in this appeal.

6

The class also included arrestees who “were subjected to blanket visual

body cavity search(es) incident to placement in a ‘safety cell’ at any of the

San Francisco County jails.” The validity of the “safety-cell search” policy

is not at issue in this appeal. Indeed, as noted supra, the district court held

that Sheriff Hennessey had qualified immunity from challenges to that

policy.

2250 BULL v. SAN FRANCISCO

of the class in eight different categories, including arrestees

classified for housing in the general jail population. Sheriff

Hennessey also moved for partial summary judgment, arguing

that he was entitled to qualified immunity with respect to the

claim that the strip search policy applicable to persons classi-

fied for housing was unconstitutional.

On September 22, 2005, the district court issued an order

disposing of the summary judgment motions, but subse-

quently granted San Francisco’s motion for reconsideration.

On February 23, 2006, the district court issued an unpublished

amended order, granting in part and denying in part each

party’s motions. Bull v. City & County of San Francisco, No.

C 03-01840, 2006 WL 449148 (N.D. Cal. Feb. 23, 2006).

This order is the subject of our review.7

The district court granted plaintiffs’ motion for partial sum-

mary judgment with respect to the policy of strip searching

class members classified for housing, holding that the policy

violated those individuals’ Fourth Amendment rights. Id. at

*6. On this issue, the court determined that San Francisco’s

blanket strip search policy ran afoul of our cases holding that

such a search can be conducted only if there is individualized

reasonable suspicion that a particular arrestee is concealing

contraband, even if the arrestee will be introduced into the

general population of a detention facility. Id.; see Thompson

7

Specifically, on October 21, 2005, San Francisco moved for reconsid-

eration of portions of the district court’s September 22, 2005 order that

were unrelated to the court’s denial of qualified immunity for Sheriff Hen-

nessey. San Francisco simultaneously appealed the denial of qualified

immunity to this court, and the appeal was assigned Docket No. 05-17080.

On February 23, 2006, the district court issued its amended order. San

Francisco 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 appeal Nos. 05-17080 and

06-15566. Because the district court ruled that the February 23, 2006 order

superseded its September 22, 2005 order, we dismiss appeal No. 05-17080

as moot.

BULL v. SAN FRANCISCO 2251

v. City of Los Angeles, 885 F.2d 1439, 1446 (9th Cir. 1989);

Giles v. Ackerman, 746 F.2d 614, 615 (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).

Accordingly, with regards to that policy, the district court

denied Sheriff Hennessey’s motion for summary judgment on

the ground of qualified immunity. Bull, 2006 WL 449148, at

*16. The court stated that “[i]t was . . . abundantly clear after

Thompson that placement in the general jail population ‘by

itself cannot justify a strip search.’ ” Id. (quoting Thompson,

885 F.2d at 1447).8 Sheriff Hennessey appealed, raising the

single issue of this qualified-immunity ruling.

II

“We review de novo the district court’s decision regarding

qualified immunity.” Motley v. Parks, 383 F.3d 1058, 1062

(9th Cir. 2004). “Qualified immunity is ‘an entitlement not to

stand trial or face the other burdens of litigation.’ ” Saucier v.

Katz, 533 U.S. 194, 200 (2001) (quoting Mitchell v. Forsyth,

472 U.S. 511, 526 (1985), overruled on other grounds by

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

the two-part qualified immunity analysis, “[w]e must deter-

mine whether, taken in the light most favorable to [Plaintiffs],

Defendants’ conduct amounted to a constitutional violation,

and . . . we must determine whether or not the right was

clearly established at the time of the violation.” McSherry v.

City of Long Beach, 560 F.3d 1125, 1129-30 (9th Cir. 2009).

It is within our “sound discretion [to] decid[e] which of the

two prongs of the qualified immunity analysis should be

addressed first in light of the circumstances in the particular

case at hand.” Pearson, 129 S. Ct. at 818.

8

The court made several other rulings on the parties’ cross motions for

summary judgment that are not at issue here.

2252 BULL v. SAN FRANCISCO

Under the circumstances of this case, we also have jurisdic-

tion to review the district court’s grant of partial summary

judgment to plaintiffs on the issue of Fourth Amendment lia-

bility, because the district court’s holding on liability is “inex-

tricably intertwined with,” as well as “dependent on both the

reasoning and results of,” its decision to deny qualified immu-

nity to Sheriff Hennessey. Marks v. Clarke, 102 F.3d 1012,

1018 (9th Cir. 1996).

III

[1] The reasonableness of a search is determined by refer-

ence to its context. Michenfelder v. Sumner, 860 F.2d 328,

332 (9th Cir. 1988). The search policy before us applied to

arrestees transferred out of holding cells and introduced into

the general jail population for custodial housing. According to

San Francisco’s unrebutted testimony, the purpose of the strip

search policy was to prevent the smuggling of drugs, weap-

ons, and other contraband into the general jail population.

Because the purpose of the search policy at issue was to fur-

ther institutional security goals within a detention facility, the

principles articulated in Bell v. Wolfish, 441 U.S. 520 (1979),

and Turner v. Safley, 482 U.S. 78 (1987), govern our analysis.

Cases that address searches of arrestees at the place of arrest,

searches at the stationhouse prior to booking or placement in

a holding cell, or searches pursuant to an evidentiary criminal

investigation do not control our review, because housing in

the general jail population and the issues attendant to effective

detention facility administration are not factors in those cases.

Accordingly, we begin our analysis of San Francisco’s strip

search policy by reviewing the principles established in Bell

and Turner.

A

In Bell, the Supreme Court upheld a policy of conducting

visual body cavity searches of individuals housed at Metro-

politan Correctional Center (MCC), a federally operated

BULL v. SAN FRANCISCO 2253

short-term custodial facility in New York, against Fourth and

Fifth Amendment challenges. MCC housed convicted

inmates, pretrial detainees, witnesses in protective custody,

and persons incarcerated for contempt of court. Bell, 441 U.S.

at 524. The plaintiff class, consisting of all persons housed at

MCC, challenged a number of different “restrictions and prac-

tices that were designed to promote security and order at the

facility on the ground that these restrictions violated the Due

Process Clause of the Fifth Amendment, and certain other

constitutional guarantees, such as the First and Fourth

Amendments.” Id. at 544. One of these practices was the

requirement that detainees undergo a visual body cavity

inspection as part of a strip search “after every contact visit

with a person from outside the institution.” Id. at 558. As in

this case, the plaintiffs argued the search policy violated their

Fourth Amendment right to be free from unreasonable

searches.

Before addressing the merits, the Court reviewed several

general principles that informed its analysis, and which bear

repeating. First, the Court reaffirmed that prisoners “do not

forfeit all constitutional protections” by virtue of incarcera-

tion, and stated that pretrial detainees “retain at least those

constitutional rights that [the Court] ha[s] held are enjoyed by

convicted prisoners.” Id. at 545. Second, the Court empha-

sized that the retained constitutional rights of prisoners and

detainees alike were subject to restrictions and limitations

based on “institutional needs and objectives,” explaining that

“[t]he fact of confinement as well as the legitimate goals and

policies of the penal institution limits these retained constitu-

tional rights.” Id. at 546. Third, the Court explained that a

central justification for this permissible restriction of constitu-

tional rights is a detention facility’s need to accomplish the

“essential goals” of “maintaining institutional security and

preserving internal order and discipline.” Id. Because

“[p]rison officials must be free to take appropriate action to

ensure the safety of inmates and corrections personnel,” even

those restrictions that infringe upon “a specific constitutional

2254 BULL v. SAN FRANCISCO

guarantee” must be “evaluated in the light of the central

objective of prison administration, safeguarding institutional

security.” Id. at 547 (internal quotation marks omitted).

Finally, the Court directed lower courts to accord corrections

officials “wide-ranging deference in the adoption and execu-

tion of policies and practices that in their judgment are needed

to preserve internal order and discipline and to maintain insti-

tutional security.” Id. (citing Jones v. N.C. Prisoners’ Labor

Union, Inc., 433 U.S. 119, 128 (1977); Procunier v. Martinez,

416 U.S. 396, 404-05 (1974), overruled on other grounds by

Thornburgh v. Abbott, 490 U.S. 401, 413-14 (1989); Cruz v.

Beto, 405 U.S. 319, 321 (1972) (per curiam); Meachum v.

Fano, 427 U.S. 215, 228-29 (1976)).

The Court specifically rejected the argument that deference

to corrections facility officials is necessary only when the per-

sons being housed have been convicted of a crime. Id. at 547

n.29. The Court explained that “the principle of deference” to

officials’ discretion in running corrections institutions is not

dependent on the “happenstance” of whether the inmates are

pretrial detainees or convicted prisoners. Id. Rather, courts

owe corrections officials deference on the grounds that “the

realities of running a corrections institution are complex and

difficult, courts are ill equipped to deal with these problems,

and the management of these facilities is confided to the

Executive and Legislative Branches, not to the Judicial

Branch.” Id.; see id. at 547-48.

Turning to the merits, the Court assumed, without deciding,

that detainees and inmates “retain some Fourth Amendment

rights upon commitment to a corrections facility” and noted

that “[t]he Fourth Amendment prohibits only unreasonable

searches.” Id. at 558. The “test of reasonableness . . . requires

a balancing of the need for the particular search against the

invasion of personal rights that the search entails. Courts must

consider the scope of the particular intrusion, the manner in

which it is conducted, the justification for initiating it, and the

place in which it is conducted.” Id. at 559.

BULL v. SAN FRANCISCO 2255

The Court acknowledged that the scope of the strip

searches at MCC was invasive: “If the inmate is a male, he

must lift his genitals and bend over to spread his buttocks for

visual inspection. The vaginal and anal cavities of female

inmates also are visually inspected.” Id. at 558 n.39. Indeed,

the circuit court in Bell had invalidated the body cavity search

policy, concluding that the “ ‘gross violation of personal pri-

vacy inherent in such a search cannot be outweighed by the

government’s security interest in maintaining a practice of so

little actual utility.’ ” Id. at 558 (quoting Wolfish v. Levi, 573

F.2d 118, 131 (2d Cir. 1978)).

The Court rejected this reasoning, however, and held that

the strip search policy at MCC was reasonable given the insti-

tutional needs and objectives, particularly the security con-

cerns, of the corrections facility. The Court noted that

“[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. Recognizing that a “detention facility is a

unique place fraught with serious security dangers,” and that

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

band is all too common an occurrence,” the Court upheld the

policy even though there had been no long or pervasive his-

tory of smuggling at MCC, nor had corrections officials pre-

sented substantial evidence that persons who participated in

contact visits were sources of contraband. Id. at 559. Indeed,

although officials could show only one instance in which con-

traband was found during a body cavity inspection, the Court

found it sufficient that “attempts to secrete these items into

the facility by concealing them in body cavities are docu-

mented in this record and in other cases.” Id. (citing cases).

While recognizing that the institution might have adopted

alternatives less intrusive than a blanket policy of performing

strip searches, the Court nevertheless deferred to MCC offi-

cials, explaining that the officials’ decision to adopt the strip

search procedure “has not been shown to be irrational or

unreasonable.” Id. at 559 n.40. Accordingly, the Court con-

2256 BULL v. SAN FRANCISCO

cluded the strip search at issue did not violate the detainees’

Fourth Amendment rights. Id. at 560.

Although Bell continues to provide definitive guidance for

analyzing detention-facility strip searches under the Fourth

Amendment, Turner v. Safley is also relevant to our analysis.

When reviewing a detention facility’s restrictions of constitu-

tional rights that are inconsistent with incarceration, Turner

directs courts to consider whether the challenged restriction

was “reasonably related to legitimate penological interests.”

482 U.S. at 89. By considering the reasonableness of a search

policy in a detention facility context, we must consider the

existence of a “valid, rational connection between the prison

regulation and the legitimate governmental interest put for-

ward to justify it”; “the impact accommodation of the asserted

constitutional right will have on guards and other inmates, and

on the allocation of prison resources generally”; and “the

existence of obvious, easy alternatives” as evidence that the

regulation “is an ‘exaggerated response’ to prison concerns.”

Id. at 89-91.9 With respect to these factors, the Court reiter-

ated the need to defer to “the informed discretion of correc-

tions officials.” Id. at 90.

We break no new ground in applying Turner and Bell in

this context. See Thompson v. Souza, 111 F.3d 694, 699-700

(9th Cir. 1997) (applying Turner and Bell to a prisoner’s

Fourth Amendment claim related to visual body cavity and

strip searches); Michenfelder, 860 F.2d at 332-33 (same); see

also, e.g., Pierce v. County of Orange, 526 F.3d 1190, 1209

(9th Cir. 2008) (applying Turner to pretrial detainees’ claims),

cert. denied, 129 S. Ct. 597 (2008); Frost v. Agnos, 152 F.3d

1124, 1130 (9th Cir. 1998) (same).10 Indeed, Turner applies

9

The second Turner factor, “whether there are alternative means of

exercising the right that remain open to prison inmates,” 482 U.S. at 90,

is not applicable to the search policy, because the right to be free from

unreasonable searches is not a right susceptible to exercise by alternative

means. See Michenfelder, 860 F.2d at 331 n.1.

10

The dissent attempts to distinguish Thompson and Michenfelder on the

ground that they involved “claims brought by prisoners already serving

BULL v. SAN FRANCISCO 2257

“to rights that are inconsistent with proper incarceration,”

Johnson v. California, 543 U.S. 499, 510 (2005) (internal

quotation marks omitted), and Bell made clear that the Fourth

Amendment rights of incarcerated persons are subject to “lim-

itation or retraction” in order to maintain institutional secur-

ity, 441 U.S. at 546; see also Washington v. Harper, 494 U.S.

210, 224 (1990) (explaining that Turner “made quite clear

that the standard of review we adopted . . . applies to all cir-

cumstances in which the needs of prison administration impli-

cate constitutional rights”).11

sentences,” and thus “involve[d] legitimate penological interests,” while

such “penological interests” do not apply to pre-trial detainees. This dis-

tinction is unavailing. We have never distinguished between pretrial

detainees and prisoners in applying the Turner test, but have identified the

interests of correction facility officials responsible for pretrial detainees as

being “penological” in nature. See, e.g., Simmons v. Sacramento County

Superior Court, 318 F.3d 1156, 1161 (9th Cir. 2003) (holding that a sher-

iff’s refusal to transport a pretrial detainee from jail to court for a personal

injury trial “serves a legitimate penological interest” in that it “goes to the

very heart of that interest—to keep detainees detained unless absolutely

necessary.”); Valdez v. Rosenbaum, 302 F.3d 1039, 1048 (9th Cir. 2002)

(holding that restrictions on telephone access in a state jail does not violate

a pretrial detainee’s constitutional rights if “it is reasonably related to

legitimate penological interests.”). While penological interests in punish-

ment or rehabilitation may not be applicable outside of a prison setting,

the penological interest in security and safety is applicable in all correction

facilities. Indeed, Bell declined to “distinguish[ ] between pretrial detain-

ees and convicted inmates in reviewing the challenged security practices,”

noting that “[t]here is no basis for concluding that pretrial detainees pose

any lesser security risk than convicted inmates. Indeed, it may be that in

certain circumstances they present a greater risk to jail security and order.”

Bell, 441 U.S. at 547 n.28.

11

The dissent argues that we should not apply the Turner standard,

because “Bell directly controls here.” While we agree that Bell is directly

applicable to pretrial detainees, Bell is consistent with Turner, see Turner,

482 U.S. at 87-90; Thornburgh, 490 U.S. at 410 n.9 (pointing out that Tur-

ner “expressly relied” on Bell “when it announced the reasonableness

standard for ‘inmates’ constitutional rights’ cases”), and thus there is no

reason to depart from our prior cases holding that Turner is applicable in

this context.

2258 BULL v. SAN FRANCISCO

B

[2] Turning to the San Francisco strip search policy, we

begin by applying Bell’s general principles. Bell held that a

mandatory, routine strip search policy applied to prisoners

“after every contact visit with a person from outside the insti-

tution,” without individualized suspicion, was facially consti-

tutional. The dissent’s characterization of the case to the

contrary is counterfactual. See Bell, 441 U.S. at 558. In reach-

ing this conclusion Bell assumed, without deciding, that incar-

cerated persons retain some Fourth Amendment rights. We

have gone further, and recognized that the Fourth Amendment

does apply to the invasion of bodily privacy in prisons. See,

e.g., Michenfelder, 860 F.2d at 332. Because San Francisco’s

policy applied to arrestees introduced into the general jail

population for custodial housing, we are required to evaluate

the plaintiffs’ constitutional claims “in the light of the central

objective of prison administration, safeguarding institutional

security.” Bell, 441 U.S. at 547. The principle that confine-

ment “brings about the necessary withdrawal or limitation of

many privileges and rights . . . applies equally to pretrial

detainees and prisoners.” Bell, 441 U.S. at 545-46 (internal

quotation marks omitted); see also United States v. Van

Poyck, 77 F.3d 285, 291 & n.10 (9th Cir. 1996). Finally, even

if we “disagree[ ] with the judgment of [corrections] officials

about the extent of the security interests affected and the

means required to further those interests,” Bell, 441 U.S. at

554, we may not engage in “an impermissible substitution of

[our] view on the proper administration of [a corrections facil-

ity] for that of the experienced administrators of that facility.”

Block, 468 U.S. at 589.

[3] Applying the principles reviewed above, it is apparent

that the scope, manner, and justification for San Francisco’s

strip search policy was not meaningfully different from the

scope, manner, and justification for the strip search policy in

Bell.12 Similar to the challenged policy in Bell, the San Fran-

12

Bell did not analyze the place in which the strip searches occurred, but

as explained below, the San Francisco policy’s requirement that officers

BULL v. SAN FRANCISCO 2259

cisco strip search procedures governing the scope and manner

of the searches, as detailed in the Sheriff’s Booking Searches

policy, limited the searches to visual inspection and expressly

prohibited tactile strip searches. See 441 U.S. at 558 n.39,

560. Moreover, the San Francisco procedures required offi-

cials to conduct strip searches in a professional manner and in

a place that afforded privacy. Furthermore, the circumstances

justifying the San Francisco strip search policy are weightier

in this case than they were in Bell. The record reveals a perva-

sive and serious problem with contraband inside San Francis-

co’s jails, as well as numerous instances in which contraband

was found during a search, indicating that arrestees’ use of

body cavities as a method of smuggling drugs, weapons, and

items used to escape custody is an immediate and troubling

problem for San Francisco jail administrators. The record of

smuggling in this case far exceeds the showing in Bell, where

defendants “proved only one instance in the MCC’s short his-

tory where contraband was found during a body-cavity

search.” Id. at 558.

[4] In sum, because the circumstances before us are not

meaningfully distinguishable from those presented in Bell, the

balance between the need for the San Francisco strip search

policy and “the invasion of personal rights that the search

entails” must be resolved in favor of the jail system’s institu-

tional concerns. Id. at 559. While strip searches are invasive

and embarrassing, and while this type of security measure “in-

stinctively gives us the most pause,” id. at 558, we must con-

clude that under Bell, San Francisco’s strip search policy was

reasonable and therefore did not violate the class members’

Fourth Amendment rights.

[5] Because the Turner factors require us to give more def-

erence to detention officials’ determinations than does the bal-

conduct strip searches in a private place supports a conclusion that the pol-

icy was reasonable.

2260 BULL v. SAN FRANCISCO

ancing test in Bell, it is not surprising that our consideration

of the Turner factors leads to the same conclusion. San Fran-

cisco presented a well-documented record of the contraband

problem in its jails, of individuals attempting to smuggle con-

traband into the jails via body cavities, and of the health and

safety issues such smuggling raised. The record includes a jail

administrator’s testimony that “it is of utmost importance in

the operation of a jail system to prevent the introduction of

drugs, weapons, and other contraband” and that “[t]he safety

and well being of all inmates, staff and the public demands no

less.” Further, Sheriff Hennessey testified that, in creating jail

policies, he considers “the needs of institutional security and

safety of staff, inmates, and visitors[,] . . . the privacy and dig-

nity of inmates[,] . . . [and] the cost and practicality of jail

policies.” Finally, the record includes testimony that “the

greatest opportunity for the introduction of drugs and weap-

ons into the jail occurs at the point when an arrestee is

received into the jail for booking and, thereafter, housing,”

and that detainees “are searched before they are transferred to

the general jail population in order to prevent the introduction

of drugs, weapons or other contraband into the jails and

thereby to protect inmates and staff.” In light of this evidence,

we must conclude there was a “valid, rational connection

between the prison regulation and the legitimate governmen-

tal interest put forward to justify it.” Turner, 482 U.S. at 89

(internal quotation marks omitted); see Beard v. Banks, 548

U.S. 521, 531 (2006) (holding that detention facility superin-

tendent’s testimony articulating identified problem and his

views on how challenged policy addressed them was suffi-

cient to show “that the regulations do, in fact, serve the func-

tion identified”).

[6] With respect to Turner’s concern for prison resources,

San Francisco produced undisputed evidence that the elimina-

tion of the strip search policy would “lead to a higher inci-

dence of illegal contraband in the jails,” and that

implementation of more targeted policies “requires supervi-

sory and line staff training” that “takes time away from other

BULL v. SAN FRANCISCO 2261

tasks and necessarily uses resources in scarce supply.” When

the allocation of resources and the ability of administrators to

protect staff and detainees at the facility are at issue, “courts

should be particularly deferential to the informed discretion of

corrections officials.” Turner, 482 U.S. at 90.13 Moreover,

because Bell determined that a strip search policy is reason-

able in a facility with only a single confirmed smuggling inci-

dent, 441 U.S. at 559, we cannot say that plaintiffs have met

their burden of showing that San Francisco’s strip search pol-

icy was “an exaggerated response to prison concerns,“ Tur-

ner, 482 U.S. at 90 (internal quotation marks omitted).

Furthermore, eligible arrestees who were released following

citation, upon reaching sobriety, or after posting bond were

not subject to strip searches, and San Francisco gave arrestees

a reasonable time in which to post bond. Finally, in light of

the documented evidence of the ongoing, dangerous, and per-

plexing contraband-smuggling problem, and given the defer-

ence we owe to jail officials’ professional judgment, we

cannot conclude that there are “obvious, easy alternatives” to

preventing contraband from entering the jails. Turner, 482

13

The dissent claims San Francisco instituted its policy merely because

it would require more time to train its officers and because “it is admin-

istratively inconvenient to comply with the Constitution.” It cites Fron-

tiero v. Richardson, 411 U.S. 677, 690 (1973), for the proposition that

“mere bureaucratic discomfort does not justify constitutional violations.”

Frontiero is not on point. In Frontiero, the Court struck down a statute

that discriminated on the basis of gender and held that the government’s

justification for the statute, that it would be “cheaper and easier” to dis-

criminate, did not pass strict scrutiny review. Frontiero, 411 U.S. at 691.

In the corrections facility context, by contrast, the Supreme Court requires

courts to inquire into “the impact accommodation of the asserted constitu-

tional right will have on . . . the allocation of prison resources generally”

in order to determine whether there is a “ ‘valid, rational connection’

between the prison regulation and the legitimate governmental interest put

forward to justify it.” Turner, 482 U.S. at 89-90. San Francisco’s state-

ments regarding the effect that the implementation of a targeted strip

search policy would have on jail resources is relevant to this inquiry, and

the dissent’s claim that such statements represent San Francisco’s view

that it would be “administratively inconvenient to comply with the Consti-

tution” misrepresents the record.

2262 BULL v. SAN FRANCISCO

U.S. at 90. Accordingly, a straightforward application of Tur-

ner likewise leads to the conclusion that San Francisco’s strip

search policy did not violate the class members’ Fourth

Amendment rights because it was “reasonably related to [the]

legitimate penological interests” of the jail in maintaining

security for inmates and employees by preventing contraband

smuggling. Id. at 89.

C

[7] Plaintiffs argue this conclusion is inconsistent with our

earlier decisions in Thompson v. City of Los Angeles, 885

F.2d 1439 (9th Cir. 1989), and Giles v. Ackerman, 746 F.2d

614 (9th Cir. 1984) (per curiam), which held that a blanket

policy of strip searching arrestees was per se unconstitutional,

even if the arrestees were to be transferred into the general

population. In revisiting these opinions today, we conclude

they failed to give due weight to the principles emphasized in

Bell and reiterated in Turner.

In Giles, a woman arrested for a minor traffic offense was

strip searched in accordance with county policy before being

booked at the county jail. We concluded that “arrestees

charged with minor offenses may be subjected to a strip

search only if jail officials possess a reasonable suspicion that

the individual arrestee is carrying or concealing contraband.”

746 F.2d at 617. Because the county lacked such a reasonable

suspicion in Giles’s case, we held the strip search violated her

constitutional rights. We distinguished the facts of Giles’s

case from the situation in Bell on several grounds. First, we

determined that a strip search of every arrestee booked into a

county jail was “not necessary to protect the institution’s

security interest,” in part because arrestees could be segre-

gated from more dangerous inmates. Id. We refused to accord

weight to the fact Giles had been placed in the general jail

population, reasoning that “such intermingling is both limited

and avoidable.” Id. at 618-19. Second, we stated that the

detainees in Bell “were charged with offenses more serious

BULL v. SAN FRANCISCO 2263

than minor traffic violations, and . . . they were therefore

detained for substantial pretrial periods.” Id. at 617. Third, we

noted the county had not demonstrated that the jail had a seri-

ous smuggling problem, because only eleven incidents of

smuggling had been detected in the preceding eighteen-month

period. Id. Finally, we determined the county had not demon-

strated that its strip search policy had a deterrent effect, rea-

soning “[v]isitors to the detention facility in Bell could plan

their visits and organize their smuggling activities,” whereas

confinement in the county jail was an unplanned event, “so

the policy could not possibly deter arrestees from carrying

contraband.” Id.

In Thompson, we upheld the constitutionality of the coun-

ty’s strip search of a man arrested for grand theft auto because

his offense was “sufficiently associated with violence to jus-

tify a visual strip search.” 885 F.2d at 1447. Following Giles,

we confirmed that strip searches must be based on individual-

ized reasonable suspicion that an arrestee is carrying contra-

band, and cannot be justified on the ground that an arrestee is

being placed in contact with the general jail population. Id.

Thompson and Giles failed to comply with the Supreme

Court’s direction that we not substitute our judgment for that

of corrections facility officials. Bell, 441 U.S. at 540 n.23.

First, our conclusion in Giles that strip searches of arrestees

heading into the general jail population must be based on indi-

vidualized suspicion is inconsistent with the approach adopted

in Bell. The Supreme Court did not require MCC officials to

consider the individual characteristics of the persons subject

to the strip search policy. Nor did the Court require MCC offi-

cials to articulate their suspicions that a particular person sub-

ject to the policy was smuggling contraband. Rather, the

Supreme Court upheld a policy of strip searching all persons

who had contact visits as categorically reasonable under the

circumstances in the detention facility. Id. at 559-60; see Hud-

son v. Palmer, 468 U.S. at 538 (O’Connor, J., concurring)

(stating that in certain contexts, such as the one considered in

2264 BULL v. SAN FRANCISCO

Bell, “the Court has rejected the case-by-case approach to the

‘reasonableness’ inquiry in favor of an approach that deter-

mines the reasonableness of contested practices in a categori-

cal fashion” (citing Bell, 441 U.S. at 555-60)); see also

Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 619-20

(1989) (describing special needs cases and citing Bell). More-

over, the question whether strip searches could be justified

even in the absence of individualized suspicion was squarely

raised in Bell. See 441 U.S. at 563 (Powell, J., concurring in

part and dissenting in part) (dissenting on the sole ground that

“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”); id. at 578 (Marshall, J., dissenting)

(disagreeing with the majority in part on the ground that “the

searches are employed absent any suspicion of wrongdoing”).

Yet the Court declined to impose an individualized suspicion

requirement, notwithstanding criticism from Justices Powell

and Marshall.

Second, we erred in concluding that arrestees charged with

minor offenses “pose no security threat to the facility.” Giles,

746 F.2d at 618.14 Bell did not require MCC officials to mod-

ify the strip search policy based on whether a detainee had

been charged with a serious or minor offense. Indeed, the

detention facility in Bell housed witnesses in protective cus-

tody and persons detained pursuant to contempt orders, and

those persons were included in the class of plaintiffs. 441 U.S.

at 524, 526 n.5; see also United States ex rel. Wolfish v. Levi,

439 F. Supp. 114, 119 (S.D.N.Y. 1977) (defining the class of

plaintiffs as “pre-trial detainees for whom the facility was pri-

marily designed, sentenced prisoners either awaiting assign-

14

The dissent repeats this error in asserting that “persons with no crimi-

nal history arrested for trivial offenses pose no credible risk of smuggling

contraband into jails.” As in Giles, this appellate fact finding constitutes

the “sort of unguided substitution of judicial judgment for that of the

expert prison administrators” the Supreme Court has forbidden. Bell, 441

U.S. at 554.

BULL v. SAN FRANCISCO 2265

ment to a prison facility or assigned here to serve their

(usually relatively short) terms, prisoners here on writs to tes-

tify or to stand trial, witnesses in protective custody, and per-

sons incarcerated for contempt”). “The MCC was hardly a

facility where all of the detainees were ‘awaiting trial on seri-

ous federal charges,’ as some of the opinions of other circuits

seem to indicate.” Evans v. Stephens, 407 F.3d 1272, 1291

(11th Cir. 2005) (en banc) (Carnes, J., concurring specially).

Third, Giles erred in deciding that a record of eleven

instances of smuggling was insufficient to demonstrate a

smuggling problem. 746 F.2d at 617-18. Bell did not require

officials to demonstrate a lengthy history of multiple incidents

of smuggling. Rather, in Bell, MCC officials had determined

that, in their professional judgment, strip and visual cavity

searches after contact visits were necessary for deterrence as

well as detection of contraband. 441 U.S. at 558. In light of

this decision, which was not “irrational or unreasonable,” id.

at 559 n.40, the Supreme Court held MCC’s strip search pol-

icy was constitutional even though MCC had detected just a

single incident of contraband smuggling, id. at 559; see also

Nat’l Treasury Employees Union v. Von Raab, 489 U.S. 656,

675 n.3 (1989) (“When the Government’s interest lies in

deterring highly hazardous conduct, a low incidence of such

conduct, far from impugning the validity of the scheme for

implementing this interest, is more logically viewed as a hall-

mark of success.” (citing Bell, 441 U.S. at 559)).15

15

Thus, the dissent’s argument that Bell requires a “factbound, data-

driven inquiry into the categorical reasonableness of the search” mis-

characterizes the Court’s holding. In overruling the district court and the

Second Circuit, Bell rejected the empirical evidence requirement adopted

by those courts, see Wolfish, 439 F. Supp. at 147; Wolfish, 573 F.2d at

131, and upheld MCC’s strip search policy even though there had been

only one incident of prior contraband smuggling. Indeed, Bell suggested

that the strip search policy would have been valid in the absence of any

proof of incidents of contraband smuggling, because the absence of con-

traband may indicate that the policy is an effective deterrent. Bell, 441

U.S. at 559 (“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.”).

2266 BULL v. SAN FRANCISCO

Finally, Giles erred in assuming that a strip search policy

could not have a deterrent effect on persons who have been

arrested and are being introduced into the general jail popula-

tion for the first time, 746 F.2d at 617, as opposed to detain-

ees who are already in the general jail population and are

engaging in contact visits. In both scenarios, the individuals

have access to contraband and can conceal dangerous items

on their person. “There is no denying that arrestees entering

a detention facility usually have had plenty of contact with

outsiders, most having been outsiders themselves until they

were arrested.” Powell v. Barrett, 541 F.3d 1298, 1313 (11th

Cir. 2008) (en banc). Thus, the effort to distinguish Bell on

the ground that “arrestees do not ordinarily have notice that

they are about to be arrested and thus an opportunity to hide

something,” Shain v. Ellison, 273 F.3d 56, 64 (2d Cir. 2001),

and therefore are less likely to hide contraband on their person

than persons already in jail who engage in contact visits, is

unpersuasive.16 As the Eleventh Circuit noted, “[n]ot everyone

who is arrested is surprised, seized, and slapped into hand-

cuffs without a moment’s notice. Some people surrender

when they are notified that a warrant for them is outstanding.

. . . [Some] have notice that officers are coming to arrest

them,” and those persons arrested after a vehicle stop “may

have time to hide items on their person before the officer

reaches the car door. Then there are those who deliberately

get themselves arrested.” Powell, 541 F.3d at 1313.

Giles’s hypothesis that arrestees lack the opportunity to

hide contraband on their person is also belied by the evidence

in this case. The record establishes that San Francisco

detected a substantial amount of contraband during strip

16

Although the dissent argues that “[a]s a matter of common sense, con-

tact visits are far more likely to lead to smuggling than initial arrests,” it

offers no support for this factual finding. But see Bell, 441 U.S. at 547

(holding that courts should accord “wide-ranging deference” to prison

administrators’ judgment of the practices and policies needed to “preserve

internal order and discipline and to maintain institutional security”).

BULL v. SAN FRANCISCO 2267

searches of arrestees at the San Francisco jail, and also indi-

cates that arrestees facing a strip search have jettisoned con-

traband in the holding cell. This evidence shows that arrestees

do, in fact, have both the opportunity and inclination to con-

ceal contraband in private bodily areas before being trans-

ported to County Jail No. 9, and that a strip search policy may

have a deterrent effect. Because we see no meaningful differ-

ence between the institutional concerns raised by contact vis-

its in Bell and those raised by introducing arrestees into the

general jail population in this case, we must reject this pur-

ported distinction of Bell.

For the same reasons, we disagree with those other circuits

that have held strip searches of arrestees entering the general

jail population per se unreasonable unless the officials have

individualized reasonable suspicion that the arrestees are

smuggling contraband. See, e.g., Roberts v. Rhode Island, 239

F.3d 107, 112 (1st Cir. 2001); Shain, 273 F.3d at 65; Masters

v. Crouch, 872 F.2d 1248, 1255 (6th Cir. 1989). These courts

have purported to distinguish Bell on several grounds: that

persons arrested on certain minor offenses do not represent a

security concern, see, e.g., Roberts, 239 F.3d at 111, Masters,

872 F.2d at 1255; that persons who are arrested are less likely

to smuggle contraband than detainees already in the general

jail population who engage in contact visits, see, e.g., Roberts,

239 F.3d at 112; and that a blanket strip search policy for all

arrestees entering the general jail population is unreasonable

unless officials have demonstrated the existence of a signifi-

cant smuggling problem and that a blanket policy has a signif-

icant deterrent effect, see, e.g., id. As explained above, this

reasoning is inconsistent with both the general principles

enunciated in Bell and Turner, and with the specific applica-

tion of those principles to the strip search at issue in Bell.

Moreover, these decisions are inconsistent with the Supreme

Court’s warning that federal courts must avoid substituting

their judgment for the “professional expertise of corrections

officials” in “determining whether restrictions or conditions

are reasonably related to the Government’s interest in main-

2268 BULL v. SAN FRANCISCO

taining security and order and operating the institution in a

manageable fashion.” 441 U.S. at 540 n.23. While federal

courts may “disagree[ ] with the judgment of [corrections]

officials about the extent of the security interests affected and

the means required to further those interests,” the Supreme

Court’s “decisions have time and again emphasized that this

sort of unguided substitution of judicial judgment for that of

the expert prison administrators on matters such as this is

inappropriate.” Id. at 554.

[8] We agree with the reasoning of the Eleventh Circuit

that the rights of arrestees placed in custodial housing with the

general jail population “are not violated by a policy or prac-

tice of strip searching each one of them as part of the booking

process, provided that the searches are no more intrusive on

privacy interests than those upheld in the Bell case,” and the

searches are “not conducted in an abusive manner.” Powell,

541 F.3d at 1314; cf. Archuleta v. Wagner, 523 F.3d 1278,

1284 (10th Cir. 2008) (upholding searches of arrestees inter-

mingled with general population of a corrections facility, but

not those awaiting bail, and stating that when an arrestee is

kept in a holding cell the “obvious security concerns inherent

in a situation where the detainee will be placed in the general

prison population are simply not apparent”). We therefore

overrule our own panel opinions in Thompson and Giles.

[9] We do not, however, disturb our prior opinions consid-

ering searches of arrestees who were not classified for hous-

ing in the general jail or prison population.17 See, e.g., Way v.

17

Thus the dissent misrepresents the reach of the San Francisco policy

and our holding in claiming that we are “sweep[ing] away twenty-five

years of jurisprudence,” and “giving jailors the unfettered right” to search

“any citizen who may be arrested for minor offenses.” The strip search

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

ees classified to enter the general corrections facility population. The dis-

sent fails to differentiate between cases considering the constitutionality of

strip searches of arrestees who were classified for housing in the general

population, and strip searches of arrestees in other contexts.

BULL v. SAN FRANCISCO 2269

County of Ventura, 445 F.3d 1157, 1160 (9th Cir. 2006) (con-

sidering the strip search of an intoxicated arrestee who was

detained until sober and never housed with the general jail

population); Act Up!/Portland v. Bagley, 988 F.2d 868, 871

(9th Cir. 1993) (considering the strip search of arrestees who

were cited and released); Fuller v. M.G. Jewelry, 950 F.2d

1437, 1445-46 (9th Cir. 1991) (considering the search of

arrestees without considering whether they would be held in

the general jail population); Kennedy v. L.A. Police Dep’t,

901 F.2d 702, 712 (9th Cir. 1990) (considering the strip

search of an arrestee who was placed in a holding cell until

posting bond); Ward v. County of San Diego, 791 F.2d 1329,

1333 (9th Cir. 1986) (considering the strip search of an

arrestee who was searched before the determination was made

as to whether she was eligible for release on her own recogni-

zance). The constitutionality of searches of arrestees at the

place of arrest, searches at the stationhouse prior to booking,

and searches pursuant to an evidentiary investigation must be

analyzed under different principles than those at issue today.

See, e.g., Winston v. Lee, 470 U.S. 753, 762-63 (1985) (ana-

lyzing a physically invasive search of an arrestee intended to

uncover vital evidence in criminal investigation); Illinois v.

Lafayette, 462 U.S. 640, 646 (1983) (addressing inventory

searches at the stationhouse intended to avoid theft, ascertain

identity, and maintain security in a police station); United

States v. Robinson, 414 U.S. 218, 235 (1973) (discussing

searches incident to lawful arrest, which are “based upon the

need to disarm and to discover evidence”); see also Evans,

407 F.3d at 1279.

D

In rejecting our analysis, the dissent devises its own test for

determining whether the strip search of an arrestee is constitu-

tional. First, the dissent contends that “strip searches must be

justified by individualized reasonable suspicion” or, at the

very least, “categorical reasonableness based on empirical

evidence that the policy is necessary.” The categorical

2270 BULL v. SAN FRANCISCO

approach must be “narrowly tailored” because “the most inva-

sive search is justified only by the most compelling need.”18

Ultimately, the dissent’s analysis and proposed test amount

to a disagreement with Bell. Under Bell, as explained above,

a strip search policy in these circumstances need not be based

on individualized reasonable suspicion or empirical evidence

that the policy is necessary. In fact, the MCC’s strip search

policy would probably not pass muster under the dissent’s

test. The MCC’s policy was not supported by empirical data:

The MCC proved “only one instance . . . where contraband

was found during a body-cavity search.” Bell, 441 U.S. at

558. Nor was there evidence that the contraband was found on

a person who might meet the dissent’s standard for raising

reasonable suspicion to justify a search. Id. at 559. Under

Bell, the question (disputed by the parties) whether there is an

“example of anyone from the class defined by the district

court who was found to possess contraband upon being strip

searched” is not dispositive, or even relevant. As the dissent

acknowledges, “Bell directly controls here.” Bell is inconsis-

18

The dissent attempts to support this test by pointing to Supreme Court

decisions that are considerably far afield from the situation here. For

example, it cites Safford Unified School District #1 v. Redding, 129 S. Ct.

2633 (2009), to support its theory that “a strip search policy violates the

Fourth Amendment when there is little evidence that the searches will

result in the discovery of contraband.” As the dissent acknowledges, this

decision arose in a “slightly different context.” Specifically, Safford

addressed the rights of school children, and “it goes almost without saying

that the prisoner and the schoolchild stand in wholly different circum-

stances.” New Jersey v. T.L.O., 469 U.S. 325, 338 (1985) (internal quota-

tion marks and alteration omitted). As the Court remarked, “[w]e are not

yet ready to hold that the schools and the prisons need be equated for pur-

poses of the Fourth Amendment.” Id. at 338-39. The considerations that

informed the Court’s analysis in Safford are not applicable here. The dis-

sent also cites the Supreme Court’s standard for demonstrating the exis-

tence of probable cause when applying to a magistrate for a warrant. Of

course, corrections officials do not need probable cause and a warrant in

order to conduct searches related to institutional security. See, e.g., Hud-

son, 468 U.S. at 538 (O’Connor, J., concurring); Bell, 441 U.S. at 560.

BULL v. SAN FRANCISCO 2271

tent with the dissent’s analysis, and compels the conclusion

we reach in this case. We must therefore reject the dissent’s

approach for determining the constitutionality of strip

searches of detainees entering the general population of a cor-

rections facility.

IV

[10] In light of governing Supreme Court precedent, and

given the circumstances presented here, we conclude that San

Francisco’s policy requiring strip searches of all arrestees

classified for custodial housing in the general population was

facially reasonable under the Fourth Amendment, notwith-

standing the lack of individualized reasonable suspicion as to

the individuals searched. Because the policy did not violate

plaintiffs’ Fourth Amendment rights, we reverse the district

court’s denial of Sheriff Hennessey’s motion for summary

judgment based on qualified immunity, and in doing so neces-

sarily reverse the district court’s grant of plaintiffs’ motion for

partial summary judgment as to Fourth Amendment liability.

REVERSED.

KOZINSKI, Chief Judge, with whom Judge GOULD joins,

concurring:

The interesting and difficult question at the heart of this

case is whether federal judges can force government officials

to subdivide classes of people subject to a valid Fourth

Amendment search into sub-classes that present a materially

different Fourth Amendment calculus. That question can arise

in many contexts, and the answer will have far-reaching con-

sequences.

There was a time in our constitutional history when one

might have argued that the Fourth Amendment requires indi-

2272 BULL v. SAN FRANCISCO

vidualized suspicion for every search and an appropriate con-

stitutional balance as to each individual. If that was ever the

case, it’s not so now: The government is entitled to search

classes of individuals based on a balance struck for the class

as a whole, regardless of whether there’s reasonable suspicion

—or any suspicion at all—as to any particular member. Bell

v. Wolfish tells us that everyone in prison who participates in

a contact visit may be strip searched. 411 U.S. 520, 558-60

(1979). We’ve known for some time that everyone who

boards a commercial airplane may be subject to a fairly intru-

sive search, United States v. Edwards, 498 F.2d 496, 500 (2d

Cir. 1974) (Friendly, J.), as may everyone who enters a public

building, McMorris v. Alioto, 567 F.2d 897, 900-01 (9th Cir.

1978) (Kennedy, J.). We’ve said that truck drivers can be

searched without individual suspicion. Int’l Brotherhood of

Teamsters v. Dep’t of Transp., 932 F.2d 1292, 1300 (9th Cir.

1991). And the Supreme Court has approved such suspicion-

less searches for railroad workers, Skinner v. Ry. Labor Exec-

utives Ass’n, 489 U.S. 602, 624 (1989), student athletes,

Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 665 (1995),

students participating in other extracurricular activities, Bd. of

Educ. of Indep. Sch. Dist. No. 92 of Pottawatomie County v.

Earls, 536 U.S. 822, 838 (2002), customs agents, Nat’l Trea-

sury Employees Union v. Von Raab, 489 U.S. 656, 677

(1989), prisoners released on parole, Samson v. California,

547 U.S. 843, 846 (2006), and people crossing the border,

United States v. Martinez-Fuerte, 428 U.S. 543, 545 (1976).

The class to be searched is generally defined by the activity

in question: In Bell, it was the class of all inmates who had

contact visits; in other situations it’s all those who seek to

board an aircraft, enter a building, drive a truck, perform cer-

tain law enforcement functions or engage in particular extra-

curricular activities. In a very important sense, such

classifications trade the protection afforded by individualized

suspicion for protection derived from the fact that the govern-

ment treats all similarly situated people in precisely the same

way.

BULL v. SAN FRANCISCO 2273

Which brings us to the hard question: Do individuals sub-

ject to class-wide search based on risks attributable to the

class as a whole have a constitutional right to get themselves

certified as a sub-class as to which a lesser search, or no

search at all, is reasonable? For example, should some people

be exempt from the inconvenience and delay of airport

searches because they belong to a sub-class that has a materi-

ally lower likelihood of hijacking a plane—e.g. the class of

federal judges nominated by the President and confirmed by

the Senate? Or should certain individuals who enter public

buildings be exempt from search because they belong to a

learned profession and therefore present a lower risk? Com-

pare Klarfeld v. United States, 944 F.2d 583, 588 (9th Cir.

1991) (Pregerson, J., concurring in the result), with Klarfeld,

962 F.2d 866, 870 (9th Cir. 1992) (Kozinski, J., dissenting

from denial of rehearing en banc). This question could be

posed multiple times for any regime where searches are

authorized based on suspicion applicable to a class—by truck

drivers with exemplary driving records; customs agents who

have never been subject to discipline; high school football

players who maintain a B+ average (few); prison inmates con-

victed of genteel crimes; the list is endless.

The Supreme Court has held that individuals are sometimes

entitled to an individualized Fourth Amendment calculus, and

at other times they’re entitled to a class-wide calculus. See,

e.g., Skinner, 489 U.S. at 624. But it has never held that

they’re entitled to carve out a sub-class as to which a different

Fourth Amendment balance must be struck. In the absence of

Supreme Court guidance, I am reluctant to take that step. I

can think of at least three reasons, all illustrated by this case,

why it might not be such a swell idea.

First, there’s a degree of subjectivity that attends any classi-

fication, and that subjectivity can easily transform into elit-

ism. It’s no coincidence, I believe, that the class of people

selected for favorable treatment by the district court in this

case are those who have been arrested for the kinds of crimes

2274 BULL v. SAN FRANCISCO

that any of us, or at least our friends and neighbors, might be

arrested for: those who violate traffic laws, leash laws, or

insurance requirements, or maybe the Martha Stewarts and

Bernie Ebbers of the world. Plaintiff Michael Marron was

arrested for “credit card fraud at the Hotel Nikka [sic],” where

any of us might stay when visiting San Francisco. Mary

Bull’s story might seem less compelling if she had been

arrested for vandalism ordinaire, e.g. throwing bricks at a

store window, rather than vandalism chic, throwing fake

blood at a political protest. Steve Noh was arrested for battery

“while celebrating Gay-Pride Week in the Castro,” and Jonah

Zern was arrested for resisting a police officer at a “peace”

rally. We can imagine one of our close relatives, perhaps a

child or grandchild, being put in jail under such circum-

stances. It’s much harder to empathize when a strip search is

suffered by those less like us, such as those who are suspected

of engaging in robberies or street fights.

But in a democracy there is a very important value,

enshrined in the Equal Protection Clause, in treating everyone

who stands on the same footing alike. See Vernonia Sch. Dist.

47J, 515 U.S. at 663-64. If the government treats you badly,

there’s comfort in knowing that no one in the same situation

is spared because of status, income or class. Not only does

misery love company, but equal treatment for everyone—the

rich and poor, the powerful and weak, blue collar as well as

white—creates a strong political check against making the

treatment worse. I’m convinced that airport searches would be

far more intrusive if upper and middle-class Americans were

exempt. Not only would the unexempt suffer the indignity of

unequal treatment, but those conducting the searches would

find good reason, and little political opposition, to ratchet up

the duration and scope. The best protection for plaintiff de

Ranleau, who is homeless, is to make sure that Marron, Bull,

Noh and Zern are treated no better.

Second, lines drawn by courts rather than dictated by the

functional requirements of an activity tend to be ambiguous,

BULL v. SAN FRANCISCO 2275

subject to manipulation and difficult to administer. Treating

everyone who gets on a commercial plane the same is simple:

If you want to get on a plane, you take off your shoes, leave

behind any liquids over three ounces, remove your laptop

from its carrying case and pass through the metal detector—

no exceptions. If we were to order an exemption for the least

risky segments of the population, we’d have to worry about

how to identify those people—that is, what kind of screening

we’d have to set up to make sure no fakers get into the system

—and then, at the point of entry, we’d have to confirm that

the people presenting themselves for boarding were, in fact,

the ones cleared in advance. The operation, and recent failure,

of the Clear system (which let you cut to the front of the line

but otherwise didn’t exempt you from much of anything)

showed that kind of exemption is difficult and costly to

administer, and results in a lot of dirty looks from those you

cut in front of.

Our case makes the point: The district court carved out a

class of people to exempt from the strip-search policy consist-

ing of all those arrested on a charge not involving (a) weap-

ons, (b) controlled substances, or (c) violence, and (d) as to

whom there was not individualized reasonable suspicion.

Sounds easy to separate the sheep from the goats, but it’s not.

Keep in mind that a member of the class must satisfy (nega-

tively) all four of the criteria—in other words, failure as to

any one will take someone out of the class and make him sub-

ject to the strip-search policy. Each criterion is porous and

subjective; there can be endless quarrels (and lawsuits) as to

whether someone did or did not fall into any of the categories.

Let’s start with the first one, weapons. If you’re arrested for

carrying a Gatling gun or Carl Gustav you would surely fall

into the category, but what about a butterfly knife? How about

a baseball bat or golf club? Or how about Lisa Giampaoli, one

of the named plaintiffs, who was arrested because her dog bit

a young man who was allegedly harassing her. Was that a

leash law violation or an attack with a deadly canine? See

2276 BULL v. SAN FRANCISCO

People v. Nealis, 283 Cal.Rptr. 376 (Cal. Ct. App. 1991).

What about reckless driving: Traffic violation or attack with

a ton of steel? Earlier this year, an en banc panel split 6-5 as

to whether a shank made from melted-down Styrofoam and

used by an inmate to wound another was a dangerous weapon.

United States v. Smith, 561 F.3d 934 (9th Cir. 2009) (en

banc). If federal judges can’t agree, how are the deputies

going to sort out such cases?

Next, controlled substances. Anyone caught with Smack or

Crack falls into the category, but what about Valium or Oxy-

Contin? What about unauthorized possession of steroids?

Non-prescription drugs that contain pseudoephedrine? See,

e.g., United States v. Jae Gab Kim, 449 F.3d 933 (9th Cir.

2006). Alcohol and tobacco are highly controlled substances.

Do plaintiffs Mangosing, Johnson and Bronson, arrested for

public intoxication, fall into this category? Could the jail treat

a merchant who sold cigarettes to a minor as someone

charged with a controlled substance offense?

Now let’s take the third category of offenses for which strip

searches are permitted under the district court’s order, namely

people arrested for crimes of violence. We have a whole body

of caselaw dealing with what constitutes a crime of violence

for purposes of federal criminal and immigration law; among

the activities we’ve considered are burglary, statutory rape,

involuntary manslaughter, possession of an unregistered

short-barreled shotgun, reckless vehicular assault, vehicular

manslaughter while intoxicated, kidnapping, stalking, arson,

escape, conspiracy to interfere with interstate commerce by

robbery, grand theft, mayhem, recklessly setting fire to forest

land, indecent liberties with a minor, carrying a gun while

committing a drug offense and being an accessory after the

fact to commission of murder for hire. And we often disagree.

See, e.g., United States v. Chambers, 473 F.3d 724, 726 (7th

Cir. 2007) (escape is a crime of violence); United States v.

Piccolo, 441 F.3d 1084, 1088 (9th Cir. 2006) (no it’s not);

United States v. Asberry, 394 F.3d 712, 715-16 (9th Cir.

BULL v. SAN FRANCISCO 2277

2005) (statutory rape is a crime of violence); id. at 722 (Bea,

J., concurring) (no way); United States v. Wenner, 351 F.3d

969, 974 (9th Cir. 2003) (burglary is not a crime of violence);

id. at 977 (Wallace, J., dissenting) (is too); United States v.

Johnson, 448 F.3d 1017, 1018 (8th Cir. 2006) (grand theft

auto is); Von Don Nguyen v. Holder, 571 F.3d 524, 525 (6th

Cir. 2009) (au contraire); Malta-Espinoza v. Gonzales, 478

F.3d 1080, 1084 (9th Cir. 2007) (stalking isn’t); id. at 1088

(Duffy, J., dissenting) (“I respectfully dissent.”); United

States v. Saavedra-Velazquez, 578 F.3d 1103, 1110 (9th Cir.

2009) (Reinhardt, J.) (attempted robbery is); id. (Reinhardt, J.,

specially concurring) (or is it?); United States v. Trinidad-

Aquino, 259 F.3d 1140, 1146 (drunk-driving-resulting-in-

bodily-injury is a gentle crime); id. at 1147 (Kozinski, J., dis-

senting) (Bull!). How is a Deputy Sheriff confronted with a

suspect arrested on possible charges of vandalism (like plain-

tiff Bull), burglary (like plaintiff Timbrook) or interfering

with a police officer (like plaintiff Galvin) going to know

whether such individuals are subject to search?

Finally, we get to the most troublesome category: cases

where the deputies determine there’s individualized suspicion

for a search. The district court found this includes anyone

with a prior involving weapons, controlled substances or vio-

lence, thereby importing all the ambiguities discussed above.

But even arrestees without relevant priors may be searched if

their conduct raises suspicion that they’re smuggling contra-

band. So what exactly does that encompass? While struggling

to prove that no member of the protected class has ever been

found with contraband in their private spaces (a point the dis-

sent takes up with some zest, Dissent at 2288, 2299, 2300-01,

2301-02, 2302, 2305), plaintiffs classify an arrestee who was

“nodding off,” and another who was “nervous,” as inmates as

to whom there was individualized suspicion. If “nodding off”

and “nervous” are sufficient for individualized suspicion, can

“gave me a dirty look,” “was hyperactive” or “had poor pos-

ture” be far behind?

2278 BULL v. SAN FRANCISCO

How, exactly, are deputies to know what does and does not

amount to individualized suspicion, and who ultimately

decides? Administering this category, like the others dis-

cussed above, will require a fair amount of trial and error, and

a substantial degree of judicial involvement. No need to guess

how much: A case pending before the same judge in the

Northern District, Yourke v. City and County of San Fran-

cisco, No. 03-CV-03105-CRB, gives a foretaste. Yourke was

arrested on a warrant for a traffic offense after police

observed him engaged in what looked a lot like a drug deal.

But Yourke claims it looked like an innocent chat between

friends. Who’s to say who’s right? Not only will courts have

to draw these difficult lines; jails will have to guess how

courts will draw them. Being the subject of a court order and

risking personal liability, deputies will probably err on the

side of caution, to the detriment of prisoners faced with an

increased risk of harm from smuggled contraband.

And when a search ends up in court, how will officers

prove they had individualized suspicion? The record contains

the report of a prisoner who told a guard, “wait to [sic] you

see what I have up my ass.” Was this a joke that the deputies

were required to ignore or did it give them grounds for a strip

search? And what if the inmate denies making the statement?

Or disputes that he was “nodding off” or “nervous”? By its

nature, individualized suspicion will rely on observations and

diagnoses that will be hard (if not impossible) to record and

relay to judges and juries months or years after the event.

Which brings me to my third objection to the judicial cre-

ation of sub-classes exempt from a search regime, namely that

it will likely, perhaps inevitably, require far too much judicial

involvement in the administration of the sub-class. It’s easy

enough to say who is and is not going to enter the general

population of a jail, just as it’s easy to say who is going to

engage in a contact visit, board a commercial aircraft, enter a

public building, drive a railroad or play high school football.

The activity in question defines the class. But once courts

BULL v. SAN FRANCISCO 2279

start carving out constitutionally favored sub-classes because

the members belong to some imaginary group with a lower

risk-rating than the class as a whole, courts cannot avoid get-

ting intimately involved in the conduct of the activity. This

one case has generated a substantial record, countless lower

court pleadings and no less than seven appellate opinions—so

far. And Yourke, a case involving just a single strip search,

has been ongoing over six years. If plaintiffs here succeed,

every strip search will become a potential federal case. Fed-

eral judges will start running the jails, along with pretty much

everything else.

The intervention won’t be limited to a single class action,

either, as future litigants won’t be bound by the lines drawn

in earlier cases. If these plaintiffs were to prevail, nothing

would prevent a future plaintiff from trying to show that wife-

beaters aren’t hardened criminals, generally act out of anger

and frustration and not with premeditation and, though they

might use a golf club or meat cleaver to threaten their mates,

aren’t likely to be packing such implements up their wazoos

when police come to arrest them. Could that claim be dis-

missed out of hand? Not according to plaintiffs (including

Marcy Corneau, arrested for “fighting with her boyfriend”)

and the dissent, who would put the onus on the jail to prove

some past instance where a strip search of someone arrested

for domestic violence yielded at least a dirk.

As this case illustrates, institutions aren’t equipped to deal

with such challenges, which generally call for justifications

for past conduct that no one knew would be required. Thus,

plaintiffs and the dissent try to get mileage out of the fact that

defendants have been unable to point to a single member of

the class found carrying contraband. Dissent at 2288, 2299,

2300-01, 2301-02, 2302, 2305. But at the time the searches

were conducted, there was no class as defined by plaintiffs

and the district court, so no one knew such justification would

be required. The reports prepared by the jail to record the

finding of contraband are accordingly ambiguous; very few

2280 BULL v. SAN FRANCISCO

conclusively show that the individual found with contraband

was not a member of the class, and about half are entirely

silent as to why the individual was searched. Plaintiffs want

us to infer that no contraband was ever found among the class,

but that’s hardly fair. The truth is that, on this record, we

don’t know. Moreover, as Judge Tallman’s dissent from the

panel opinion points out, plaintiffs’ central claim that mem-

bers of the class never, ever conceal contraband is almost cer-

tainly wrong as a matter of fact. Bull v. City and County of

San Francisco, 539 F.3d 1193, 1210 (9th Cir. 2008) (Tallman,

J., dissenting).

The reason past contraband reports don’t disclose the crime

for which the individual was arrested is that it’s not germane

to the purpose of the report, which is to account for a piece

of property, possibly illegal or evidence of a crime, that has

come into possession of the authorities. But if such reports are

used in litigation, with omissions held against the institution,

then a rational response will be to lengthen the reports to

include any information that might be relevant to any case

that any future plaintiff might bring. And it won’t be just

reports: There will be constant tweaking of policies to

respond to the next class action, endless training as to what

constitutes a “weapon” or a “controlled substance” and count-

less hours spent giving depositions and testifying in court.

Pretty soon, those involved in operating the institution will be

devoting most of their time and energy to averting liability

rather than running the institution effectively.

The dissent shrugs this off as no big problem because, sup-

posedly, the San Francisco jail system operates better than

ever under a policy enacted in 2004 that, in effect, adopts the

district court’s order for the duration of the lawsuit. Dissent

at 2299. But our dissenting colleague misreads the record.

Both Sheriff Hennessey and Under-Sheriff Dempsey express

grave doubts about the new policy; they make it quite clear

that they are putting up with it in order to limit their liability,

but that they believe it “increases the danger to staff and

BULL v. SAN FRANCISCO 2281

inmates” and “will lead to a higher incidence of illegal contra-

band in the jails.” The snippet of quotation excerpted in the

dissent, to the effect that the new policy “strikes the right bal-

ance between safety and the rights of inmates,” id., comes

from a portion of the Dempsey affidavit dealing with a differ-

ent search policy that is not at issue in this appeal. The dissent

is simply mistaken in suggesting that the interim intake policy

works as well as the challenged policy.

I have a difficult time justifying this kind of judicial inter-

ference in what are quintessentially executive functions. In

the absence of guidance from the Supreme Court—which is

entirely absent—I don’t believe we have the authority to

carve out sub-classes of individuals under the Fourth Amend-

ment who must be given preferred treatment by the govern-

ment. Indeed, the Court’s opinion in Bell v. Wolfish suggests

otherwise. See 441 U.S. at 558-60. Some prisoners pose a

much lower risk of accepting contraband on contact visits,

and some visitors are far less likely to bring contraband than

others. But nothing in Bell suggests that Ivan Boesky,

Michael Milken or Martha Stewart must be treated better than

other prisoners after a contact visit with their white-shoe law-

yers. The possibility of these kinds of distinctions is markedly

absent from the Court’s discussion.

Thus, while I join Judge Ikuta’s excellent opinion in full,

I concur on the separate ground that I do not believe we, as

inferior federal judges, have the authority to grant plaintiffs

the relief they seek.

GRABER, Circuit Judge, specially concurring:

I concur specially in the result because, although I agree

with Parts I and II of the dissent, I part company with its con-

clusion in Part III that the unconstitutionality of San Francis-

2282 BULL v. SAN FRANCISCO

co’s strip-search policy was clearly established at the time of

the events in question.

The most relevant Supreme Court case, Bell v. Wolfish, 441

U.S. 520 (1979), approved an across-the-board policy to strip-

search inmates following every contact visit with an outsider.

By definition, a newly arrested person, similarly, has just been

an outsider.

Moreover, as the dissent acknowledges, some categories of

pretrial detainees (such as those with a criminal record and

those arrested for violent offenses and drug offenses) do pose

a significant risk of bringing contraband into the jail. Those

categories of people may, constitutionally, be strip-searched

before entering the general jail population. That procedure, in

fact, protects people like the named plaintiffs who unwillingly

find themselves in the same facility as more dangerous detain-

ees.

Finally, none of our prior cases was sufficiently similar to

this one to signal unequivocally that the San Francisco policy

was improper.

Although I agree fully with the dissent’s constitutional

analysis and with the distinctions that the dissent draws

between Bell and this situation, I cannot say that the unconsti-

tutionality of this policy was clearly established before Janu-

ary 2004.

Accordingly, I concur in the result, but not the reasoning,

of the majority opinion.

BULL v. SAN FRANCISCO 2283

Volume 2 of 2

BULL v. SAN FRANCISCO 2285

THOMAS, Circuit Judge, with whom Judges WARDLAW,

BERZON, and RAWLINSON, join, dissenting:

Mary Bull was arrested at a political protest for pouring red

dye mixed with corn syrup on the ground. At the police sta-

tion, according to her testimony, she was pushed to the floor

and her clothes forcibly removed. Her face was smashed

against the concrete cell floor while jailors performed a body

cavity search. She was left naked in the cell for eleven hours,

then subjected to a second body cavity search. After another

twelve hours in the jail, she was released on her own recogni-

zance. She was never charged with a crime.

Charli Johnson was arrested for operating a motor vehicle

with a suspended license. She alleges she was forcibly strip

searched by male officers in a hallway, and that she was kept

in a cold room, naked for twelve hours with male officers reg-

ularly viewing her. No contraband was found. She was

released the next day. No charges were ever filed.

Sister Bernie Galvin, a Catholic nun and a member of the

Sisters of Divine Providence, was arrested at an anti-war dem-

onstration for trespassing. She was strip searched at the jail.

No contraband was found.

Michael Marron was arrested for alleged credit card fraud

at the Hotel Nikko, strip searched, and allegedly beaten and

left naked in a cell for over ten hours. No contraband was

found. All charges were eventually dismissed.

Laura Timbrook, who was arrested for bouncing small

checks, was body cavity searched twice. No contraband was

found. Deborah Flick alleges she was arrested for public

intoxication, forcibly strip searched and left naked and bleed-

ing in a cell overnight. Salome Mangosing, arrested for public

drunkenness, was strip searched and forced to remain naked

for twelve hours. Again, no contraband was found. Leigh

Fleming was arrested for disturbing the peace. She was body

2286 BULL v. SAN FRANCISCO

cavity searched and confined naked in a cold room for five

hours. No contraband was found, and she was never charged

with a crime.1

No officer testified that anyone suspected any of these indi-

viduals were hiding contraband in body orifices and, to no

one’s surprise, no contraband was found. Rather, they were

forcibly stripped and searched under a policy that mandated

routine body cavity searches of everyone arrested in San

Francisco classified for the general jail population, regardless

of how petty the offense.

In holding that such searches were unconstitutional, the dis-

trict court faithfully applied a quarter century of Ninth Circuit

law, which was consistent with the law of all but one of our

sister circuits. Under that nearly uniform interpretation of

constitutional law, a body cavity strip search of a detainee is

only justified by individualized reasonable suspicion that the

search will bear fruit. If jailors have no reasonable suspicion,

the search must be categorically reasonable based on empiri-

cal evidence that the policy is necessary. Jailors are entitled

1

These allegations, of course, remain to be proven at trial. That being

said, many of the accounts of the searches are undisputed in the record,

and there is no dispute about whether charges were filed or contraband

discovered. The majority, while relying entirely on non-class data as the

basis of its argument, suggests that the plaintiffs are precluded from citing

probative evidence from non-class members. However, in analyzing a

grant of summary judgment on the basis of qualified immunity, we con-

strue the entire factual record in the light most favorable to the non-

moving party in order to determine whether there has been a constitutional

violation. Brosseau v. Haugen, 543 U.S. 194, 197 (2004). This analysis

includes drawing all permissible inferences from the record in the light

most favorable to the non-moving party. Dias v. Elique, 436 F.3d 1125,

1131 (9th Cir. 2006). The majority also suggests that these particular facts

cannot be examined because the plaintiffs have asserted facial invalidity

of the regulations. To be sure, a portion of the complaint, which is not at

issue in the appeal, sought injunctive relief. However, the claims at issue

on this appeal are § 1983 damage claims challenging the constitutionality

of the actual, not theoretical, searches.

BULL v. SAN FRANCISCO 2287

to strip search those whose arrest charges, criminal history,

probation status, or suspicious behavior create a reasonable

justification for believing the person arrested might be con-

cealing contraband in a body cavity. That interpretation was

consistent with the leading Supreme Court case on the topic,

Bell v. Wolfish, 441 U.S. 520, 559 (1979), which required

“balancing of the need for the particular search against the

invasion of personal rights that the search entails.”

The majority sweeps away twenty-five years of jurispru-

dence, giving jailors the unfettered right to conduct manda-

tory, routine, suspicionless body cavity searches on any

citizen who may be arrested for minor offenses, such as vio-

lating a leash law or a traffic code, and who pose no credible

risk for smuggling contraband into the jail. Under its reconfig-

ured regime, the majority discards Bell’s requirement to bal-

ance the need for a search against individual privacy and

instead blesses a uniform policy of performing body cavity

searches on everyone arrested and designated for the general

jail population, regardless of the triviality of the charge or the

likelihood that the arrestee is hiding contraband.

The rationale for this abrupt precedential departure is

founded on quicksand. Indeed, the government’s entire argu-

ment is based on the logical fallacy cum hoc ergo propter hoc

— happenstance implies causation. The government argues

that contraband has been found in the San Francisco jails.

Thus, the government reasons, individuals who are arrested

must be smuggling contraband into the jail. Therefore, the

government concludes it must body cavity search everyone

who is arrested, even those who pose no risk of concealing

contraband, much less of trying to smuggle contraband into

the jail.

This reasoning finds no support from the record in this

case. Although there is evidence of some arrestees attempting

to conceal contraband during their arrest, there is not a single

documented example of anyone doing so with the intent of

2288 BULL v. SAN FRANCISCO

smuggling contraband into the jail. More importantly, for our

purposes, there is not a single example of anyone from the

class defined by the district court who was found to possess

contraband upon being strip searched. Not one.

Indeed, and ironically, the record shows that most of the

individual plaintiffs who were body cavity searched were

never actually placed in the general jail population at all.

Because they were never housed with other detainees, these

individuals posed absolutely no risk of “smuggling” contra-

band into the general jail population. They were body cavity

searched anyway, simply because they were classified for

potential placement in the general jail population.

Most of the individual plaintiffs were either never charged

with any crime, or had the charges dismissed. There is no evi-

dence in the record of a successful prosecution against any of

the individual plaintiffs.

The district court carefully defined the class of plaintiffs,

excluding all those whose objective characteristics bestowed

sufficient reasonable suspicion to justify a body cavity search.

Not only is there not a single example of any class member

searched who possessed contraband, there is no statistical evi-

dence in the record that the amount of contraband found in the

jails decreased during the period when all arrestees were body

cavity searched. And what has happened to the amount of

contraband found inside cells since the jailors adopted a more

constitutionally sound approach? The government cannot

show there has been any increase at all.

Even though it has no record evidence to support its theory,

the government nevertheless presses us to abandon all consti-

tutional protections and to bless mandatory routine body cav-

ity searches of those who, as a group, pose no reasonable risk

of secreting contraband. All but one circuit has rejected this

approach, with good reason. Suspicionless, routine, manda-

tory strip search policies flatly contradict the balancing of

BULL v. SAN FRANCISCO 2289

interests that the Supreme Court has instructed us to under-

take. And, as the record in this case and others demonstrates,

such policies result in abusive, unnecessary body cavity

searches of those who pose no security risk. This record pro-

vides no evidentiary reason to justify the abandonment of our

long-standing constitutional precedent, and every reason to

uphold it. I respectfully dissent.

I

Until January 2004, San Francisco had a policy of strip

searching all pre-arraignment arrestees entering County Jail

No. 9 who fell into certain categories. Some arrestees were

searched because of the crime they were charged with or their

criminal histories; some were searched solely because they

were classified for housing in the general jail population. The

policy applied to all arrestees classified for housing in the

general jail population, even those arrested for violating

minor traffic laws — like failure to carry insurance or driving

with a suspended license. The strip search procedure was

invasive: it involved inspection of the naked body, including

the arrestee’s breasts, buttocks, and genitalia, as well as a

visual inspection of the arrestee’s body cavities. In 2003,

Mary Bull and a class of similarly-situated plaintiffs brought

suit against the City for violations of their Fourth and Four-

teenth Amendment rights.

Judge Breyer, presiding over the district court, tailored the

class of plaintiffs extremely narrowly. In an order issued June

10, 2004, the district court defined the class 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 felony charge of violence, and not

involving a violation of parole or a violation of pro-

bation (where consent to search is a condition of

such probation), and who were subjected to a blan-

2290 BULL v. SAN FRANCISCO

ket visual body cavity strip search by defendants

before arraignment at a San Francisco County Jail

facility without any individualized reasonable suspi-

cion that they were concealing contraband. This

class also includes 1) all arrestees who were sub-

jected 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 persons who, prior to

arraignment, were subjected to blanket visual body

cavity search(es) incident to placement in a “safety

cell” at any of the San Francisco County Jails.

Bull v. City and County of San Francisco, No. 03-01840

(N.D. Cal. June 10, 2004) (order denying preliminary injunc-

tion). The class was further limited by the district court’s Feb-

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

of strip searching arrestees on the basis of their criminal his-

tory was lawful. Bull v. City and County of San Francisco,

No. 03-01840 (N.D. Cal. Feb. 23, 2006) (amended order re

motions for summary judgment). The class before this Court

are thus arrestees who were strip searched prior to arraign-

ment solely because they were classified for housing in the

general jail population and posed no other objective risk that

they would smuggle contraband.

II

Supreme Court precedent and common sense compel the

conclusion that San Francisco’s mandatory, routine, suspi-

cionless body cavity search policy violated the Constitution.

A

We begin with first principles. The Fourth Amendment

requires that we evaluate “a search or seizure in light of tradi-

tional standards of reasonableness ‘by assessing, on the one

BULL v. SAN FRANCISCO 2291

hand, the degree to which it intrudes upon an individual’s pri-

vacy and, on the other, the degree to which it is needed for the

promotion of legitimate governmental interests.’ ” Virginia v.

Moore, 553 U.S. ___, 128 S. Ct. 1598, 1604 (2008) (quoting

Wyoming v. Houghton, 526 U.S. 295, 300 (1999)).

Fourth Amendment inquiries are driven by the specific con-

text in which searches arise. Our “reasonableness” analysis is

bound by the facts of the individual case before us. Scott v.

Harris, 550 U.S. 372, 383 (2007) (describing the inquiry as

a “factbound morass”). The Supreme Court has long recog-

nized that although the constitutional rights of prisoners and

arrestees are relaxed, “[t]here is no iron curtain drawn

between the Constitution and the prisons of this country.”

Wolff v. McDonnell, 418 U.S. 539, 555-56 (1974); see also

Turner v. Safley, 482 U.S. 78, 84 (1987) (“Prison walls do not

form a barrier separating prison inmates from the protections

of the Constitution.”).

Specific security concerns affect the constitutionality of a

search. Friedman v. Boucher, 580 F.3d 847, 857 (9th Cir.

2009) (“We have . . . carefully confined administrative

searches at detention facilities to those reasonably related to

security concerns.”). Searches performed on arrestees that do

not contribute to prison security are unconstitutional. Id. at

853-57 (holding unconstitutional a search to obtain a buccal

swab from a detainee for the purpose of gathering information

for a DNA bank designed to solve cold cases).

Not all searches are created equal. The Fourth Amendment

differentiates between more and less intrusive searches, and

requires varying levels of need to justify different kinds of

searches. “[T]he scope of the particular intrusion, in light of

all the exigencies of the case, [is] a central element in the

analysis of reasonableness.” Terry v. Ohio, 392 U.S. 1, 18

n.15 (1968). Because the Fourth Amendment “requires a bal-

ancing of the need for the particular search against the inva-

sion of personal rights that the search entails,” Bell, 441 U.S.

2292 BULL v. SAN FRANCISCO

at 559, the most invasive search is justified only by the most

compelling need. See Mary Beth G. v. City of Chicago, 723

F.2d 1263, 1273 (7th Cir. 1983) (“The more intrusive the

search, the closer governmental authorities must come to

demonstrating probable cause for believing that the search

will uncover the objects for which the search is being con-

ducted.” (citing Terry, 392 U.S. at 18 n.15)).

The strip searches in this case are the most serious of per-

sonal invasions. “The intrusiveness of a body-cavity search

cannot be overstated. Strip searches involving the visual

exploration of body cavities [are] dehumanizing and humiliat-

ing.” Kennedy v. Los Angeles Police Dep’t, 901 F.2d 702, 711

(9th Cir. 1990), abrogated on other grounds by Hunter v. Bry-

ant, 502 U.S. 224 (1991) (per curiam); see also Bell, 441 U.S.

at 576-77 (Marshall, J., dissenting) (“In my view, the body-

cavity searches . . . represent one of the most grievous

offenses against personal dignity and common decency.”).

Only a truly compelling need justifies such an invasive

search.

In Bell, the Supreme Court case that governs our inquiry,

the Court considered the constitutionality of prison strip

searches after contact visits. The policy in that case required

all inmates in New York’s Bureau of Prisons facilities “to

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

strip search conducted after every contact visit with a person

from outside the institution.” Bell, 441 U.S. at 558; see also

id. at 558 n.39 (describing the search procedure).

Although the policy gave the Court “pause,” id. at 558, the

Court ultimately upheld the policy’s constitutionality. The

Court considered “whether visual body-cavity inspections as

contemplated by the [detention facility] rules can ever be con-

ducted on less than probable cause. Balancing the significant

and legitimate security interests of the institution against the

privacy interests of the inmates, we conclude that they can.”

Id. at 560. The Court thus set the justification for strip

BULL v. SAN FRANCISCO 2293

searches at something less than probable cause, but declined

to explicitly specify the level of suspicion.

In its analysis, the Court reiterated the case-by-case nature

of Fourth Amendment inquiries:

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 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 con-

ducted.

Bell, 441 U.S. at 559. The case-by-case, search-by-search

method described by this passage suggests that a mandatory,

routine, strip search policy, absent any individualized or cate-

gorical suspicion, would be unconstitutional.

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 interpreted Bell to require a prison administrator to have

reasonable suspicion before strip searching an arrestee

charged with a minor offense. Id. at 617 (“[A]rrestees charged

with minor offenses may be subjected to a strip search only

if jail officials possess a reasonable suspicion that the individ-

ual arrestee is carrying or concealing contraband.”). In so

holding, we relied not only on the language in Bell but also

on the existing interpretations of other circuits. See, e.g., Mary

Beth G., 723 F.2d at 1273 (“[E]nsuring the security needs of

the City by strip searching plaintiffs-appellees was unreason-

able without a reasonable suspicion by the authorities that

either of the twin dangers of concealing weapons or contra-

band existed.”); Logan v. Shealy, 660 F.2d 1007, 1013 (4th

Cir. 1981) (“An indiscriminate strip search policy routinely

2294 BULL v. SAN FRANCISCO

applied to detainees . . . cannot be constitutionally justified

simply on the basis of administrative ease in attending to

security considerations.”).

We’ve revisited Giles on a number of occasions, each time

reaffirming the individualized reasonable suspicion standard.

In Ward v. County of San Diego, 791 F.2d 1329, 1331-33 (9th

Cir. 1986), cert. denied, 483 U.S. 1020 (1987), we held that

absent reasonable suspicion of possession of a weapon or con-

traband, a mandatory, routine, body cavity strip search policy

of a misdemeanor arrestee prior to a determination regarding

the arrestee’s eligibility for an own recognizance release was

unconstitutional.

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,” but also noted that intermingling with the general jail

population by itself did not justify the search. Id. at 1447.

The next year, we held unconstitutional the City of Los

Angeles’s mandatory, routine, strip search policy that sub-

jected all felony arrestees to a visual body cavity search. Ken-

nedy, 901 F.2d at 713-14 (holding that the mere fact of a

felony charge bears no reasonable relationship to institutional

security concerns).

We reaffirmed our holding in Giles as recently as 2006.

Way v. County of Ventura, 445 F.3d 1157, 1161 (9th Cir.

2006), cert. denied, 549 U.S. 1052 (2006) (recognizing “the

difficulty of operating a detention facility safely, the serious-

ness of the risk of smuggled weapons and contraband, and the

deference we owe jail officials’ exercise of judgment in

adopting and executing policies necessary to maintain institu-

tional security,” but concluding that “a blanket policy is [not]

BULL v. SAN FRANCISCO 2295

constitutionally acceptable simply by virtue of jail officials’

invocation of security concerns”).2

The overwhelming majority of circuits believe that Bell

mandates a reasonable suspicion standard. However, even if

we assume that it does not, Bell at the very least mandates a

factbound, data-driven inquiry into the categorical reasonable-

ness of the search.3 Categorical reasonableness must rely on

situational suspicion. It is informed by the probability that the

search will bear fruit. See Illinois v. Gates, 462 U.S. 213, 238

(1983) (noting that only “a fair probability that contraband or

evidence of a crime will be found in a particular place” justi-

fies the need for a search).

2

The Supreme Court, in a slightly different context, recently reaffirmed

the idea that a strip search policy violates the Fourth Amendment when

there is little evidence that the searches will result in the discovery of con-

traband. In Safford Unified Sch. Dist. #1 v. Redding, 129 S. Ct. 2633

(2009), the Court held that a strip search of a schoolgirl was unconstitu-

tional in part because the school could not show any evidence that the

search would bear fruit. See id. at 2642 (holding that “the content of the

suspicion” must match “the degree of intrusion” and that “the categori-

cally extreme intrusiveness of a search” requires “some justification in

suspected facts” beyond “general background possibilities”); id. at 2642-

43 (“[W]hat was missing from the suspected facts . . . was any indication

of danger to the students . . . and any reason to suppose that [the searchee]

was carrying pills in her underwear. We think that the combination of

these deficiencies was fatal to finding the search reasonable.”).

3

The categorical approach of strip searching everyone that the majority

proposes is novel in practice. No other circuit has employed such an

approach. The only circuit to mention a similar categorical approach is the

Fifth, which explicitly rejected it as a broad brush technique for avoiding

the reasonable suspicion requirement. See Stewart v. Lubbock County, 767

F.2d 153, 156-57 (5th Cir. 1985) (“Because Lubbock County’s strip

search policy was applied to minor offenders awaiting bond when no rea-

sonable suspicion existed that they as a category of offenders or individu-

ally might possess weapons or contraband, under the balancing test of

Wolfish we find such searches unreasonable and the policy to be in viola-

tion of the Fourth Amendment.” (emphasis added)). For any categorical

approach to strip search policy to adhere to the Constitution, it must be

narrowly tailored and grounded in empirical evidence that the policy is

necessary as applied to the category of detainees in question.

2296 BULL v. SAN FRANCISCO

The district court clearly understood and applied this long

standing precedent. As Judge Breyer put it:

The indignity of the strip search is great. And is not

a minor or incidental humiliation. It’s a serious intru-

sion [on] a person’s personal right to privacy, in my

view. And I don’t think there’s a large amount of

argument over that point.

Therefore, there has to be a countervailing safety

concern that would warrant that type of intrusion.

That is what this is about. It is not any more compli-

cated than that, I think.

The district court understood that, under Bell and our prece-

dent, strip searches must be justified by individualized reason-

able suspicion or categorical reasonableness based on

empirical evidence that the policy is necessary. On a careful

application of precedent as to those arrested for minor

offenses, the district court concluded that San Francisco’s pol-

icy could not be justified by either reasonable suspicion or

categorical reasonableness. The district court was entirely cor-

rect.

B

The majority suggests that Turner might apply as well to

supplant the traditional Bell analysis. Turner considered the

constitutionality of restrictions on inmate marriage and corre-

spondence. In so doing, Turner set a new standard—one more

deferential to prison administrators than the standard set by

Bell—by which to judge prison regulations that impinge on

inmates’ constitutional rights. See Turner, 482 U.S. at 89-91.

Turner never overturned Bell, however, and Bell directly con-

trols here. Thus, it is Bell’s standard that we must apply, not

Turner’s. See Rodriguez de Quijas v. Shearson/Am. Express,

Inc., 490 U.S. 477, 484 (1989) (“If a precedent of this Court

has direct application in a case, yet appears to rest on reasons

BULL v. SAN FRANCISCO 2297

rejected in some other line of decisions, the Court of Appeals

should follow the case which directly controls, leaving to this

Court the prerogative of overruling its own decisions.”); Pow-

ell v. Barrett, 541 F.3d 1298, 1302 (11th Cir. 2008) (en banc)

(declining to apply the Turner standard and stating that

“[u]ntil the Supreme Court tells us that the Bell approach no

longer applies where that Court applied it, we are inclined to

continue using it”); Watt v. City of Richardson Police Dep’t,

849 F.2d 195, 196 (5th Cir. 1988) (“Analysis of the city’s

strip search policy and of the actual search conducted on Watt

begins, and practically ends, with the Supreme Court’s deci-

sion in Bell.”).

Further, the underpinnings of Turner are significantly dif-

ferent from those considered in Bell. Turner involved incar-

ceration of convicted criminals. Thus, the test developed in

Turner involved the application of “legitimate penological

interests.” 482 U.S. at 89. “Penological interests are interests

that relate to the treatment (including punishment, deterrence,

rehabilitation, etc.) of persons convicted of crimes.” Benjamin

v. Fraser, 264 F.3d 175, 187 n.10 (2d Cir. 2001). “ ‘Penologi-

cal’ means relating to the theory and practice of prison man-

agement and criminal rehabilitation.” Mauro v. Arpaio, 188

F.3d 1054, 1068 (9th Cir. 1999) (en banc) (Kleinfeld, J., dis-

senting). “The word is derived from the Greek and Latin

words meaning penalty or punishment, and still means

roughly the same thing.” Id. Penological considerations—

punishment, deterrence, rehabilitation—have no relevance to

detainees who have not been convicted of any crime. These

detainees still enjoy the presumption of innocence. To be

sure, management of jails (which may house both pretrial

detainees and convicts) and prisons (which house convicts)

share many common management considerations, but the

analysis of the rights of pre-trial detainees and convicts must

differ because penological interests do not apply to pre-trial

detainees. Thus, the “balancing of the need for the particular

search against the invasion of personal rights that the search

entails,” Bell, 441 U.S. at 559, in the pre-trial detainee context

2298 BULL v. SAN FRANCISCO

is quite different from the analysis of whether a particular

prison regulation that impinges on inmates’ constitutional

rights is “reasonably related to legitimate penological inter-

ests.” Turner, 482 U.S. at 89. The distinctions between the

Bell and Turner analyses are particularly important in this

context, which involves some detainees who were never even

charged with a crime. The Supreme Court has never conflated

the analyses of Bell and Turner. Neither have we in a case

involving a pre-trial detainee.4 Bell governs our inquiry here.

C

Because the Fourth Amendment reasonableness inquiry is

factbound, we must consider whether the specific facts of this

case justify San Francisco’s blanket strip search policy. View-

ing the facts in the light most favorable to the plaintiffs—as

we must on summary judgment for qualified immunity, Olsen

v. Idaho State Bd. of Med., 363 F.3d 916, 922 (9th Cir. 2004)

—the facts fail to justify the policy.

San Francisco could have satisfied the standard set out in

Bell had it been able to either produce reasonable suspicion

for its searches or justify its policy categorically by presenting

specific evidence of smuggling among the class of plaintiffs

in this case. The challenged portion of San Francisco’s policy

did not consider such individualized factors and instead

required strip searches of arrestees based solely on their clas-

sification for housing in the general population. Thus, San

4

The majority cites Ninth Circuit cases for the proposition that the Tur-

ner standard already has been incorporated into Bell cases: Thompson v.

Souza, 111 F.3d 694, 699-700 (9th Cir. 1997); and Michenfelder v. Sum-

ner, 860 F.2d 328, 332-33 (9th Cir. 1988). Both are distinguishable. Both

Thompson and Michenfelder involve claims brought by prisoners already

serving sentences, and Michenfelder was in a maximum security unit.

Consequently, these cases actually involve legitimate penological inter-

ests, and therefore Turner. They do not provide any support for applying

Turner’s rationale to cases involving pre-trial detainees in the circum-

stance described in Bell and the instant case.

BULL v. SAN FRANCISCO 2299

Francisco was required to demonstrate at least categorical rea-

sonableness.

The City’s burden was not great: the district court had

already done much of the City’s work by excluding most

arrestees from the class. In essence, the district court found,

as a matter of law, that the City satisfied Bell’s reasonableness

requirement for all detainees arrested on weapons, violence,

or controlled substance charges or for violation of parole or

probation, or who have a criminal history. The small set of

plaintiffs that the district court allowed to proceed were only

those whose backgrounds did not give rise to the categorical

suspicion necessary to justify a strip search. It was thus the

City’s burden to prove that the narrow class of plaintiffs war-

ranted strip searching.

San Francisco could not meet its burden. Of all the inci-

dents of discovered contraband documented by Defendants

and presented to the district court, not one documents a single

uncontroverted instance of a class member possessing contra-

band when arrested and searched. In some instances where

contraband was found, charging documents are missing and

we are unable to determine whether the arrestee would have

qualified as a member of the class. In other instances, the

criminal history of the arrestee is missing, again making it

impossible to determine whether the arrestee could be a class

member. As an appellate court, “[i]n general, we consider

only the record that was before the district court.” United

States v. W. R. Grace, 504 F.3d 745, 766 (9th Cir. 2007).

Absent more information, the record provides no evidence

that anyone who would qualify for membership in the certi-

fied class possessed concealed contraband. That result is

unsurprising. People with no criminal history who violate dog

leash or mandatory insurance laws, as a class, pose fewer

security risks than those arrested for acts of violence or drug

offenses.

Given this lack of evidence, one might wonder why the

City is pressing its argument so strongly. After all, it has

2300 BULL v. SAN FRANCISCO

changed its policy to conform to the Constitution. It now

requires individualized suspicion based on objective factors

before body cavity searching an arrestee. According to the

affidavits filed by the government, the new policy works well

and “strikes the right balance between safety and the rights of

inmates.” Nothing in the record suggests a sudden surge of

contraband accompanying the policy change.

The real answer lies in the government’s affidavits. In the

testimony submitted by the government, officials complain

that it is administratively inconvenient to comply with the

Constitution: that it requires additional training for its officers

and that it could save time if it did not have to conduct indi-

vidualized assessments. Indeed, the large record in this case

shows beyond a doubt that administrative inconvenience is

San Francisco’s sole justification for strip searching class

members. But mere bureaucratic discomfort does not justify

constitutional violations, and the Supreme Court has repeat-

edly told us so. See Frontiero v. Richardson, 411 U.S. 677,

690 (1973) (“[A]lthough efficacious administration of govern-

mental programs is not without some importance, ‘the Consti-

tution recognizes higher values than speed and efficiency.’ ”

(quoting Stanley v. Illinois, 405 U.S. 645, 656 (1972)));

United States v. U.S. Dist. Court, 407 U.S. 297, 321 (1972)

(“Although some added burden will be imposed upon the

Attorney General, this inconvenience is justified in a free

society to protect constitutional values.”). Further, the record

shows that the administrative inconveniences of the new

policy—requiring an official to have individualized suspicion

before inspecting an arrestee’s body cavities—did not pose a

particularly heavy burden.

Because there is absolutely no evidence that contraband

was smuggled into the prison by eligible class members, San

Francisco had no reason—categorical or otherwise—to sus-

pect that arrestees falling into the class of plaintiffs certified

in this case were smuggling contraband. Thus, San Francis-

BULL v. SAN FRANCISCO 2301

co’s strip search policy was unreasonable and violates the

Fourth Amendment.

This conclusion is consistent with the Court’s decision in

Bell. In Bell, the strip search policy was constitutional

because the Supreme Court had before it both a record of

smuggling and a categorically reasonable justification for the

policy. First, the Court had before it a record showing that

inmates often attempted to smuggle contraband into prisons

after contact visits. Although “petitioners proved only one

instance in the [prison facility’s] short history where contra-

band was found during a body-cavity search,” Bell, 441 U.S.

at 558, “inmate attempts to secrete these items into the facility

by concealing them in body cavities are documented in this

record and in other cases,” id. at 559 (internal record citation

omitted). Here, not even that showing could be made. There

is simply no evidence that detainees falling into the extremely

narrow class of plaintiffs certified by Judge Breyer attempted

to smuggle contraband. Nor, for that matter, is there any evi-

dence at all of any attempts by anyone to smuggle contraband

via arrest. Certainly, concealed contraband was discovered

during strip-searches of non-class members; however, nothing

in the record indicates that these incidents involved anything

more than an arrestee attempting to conceal possessed contra-

band upon arrest.

Second, contact visits are planned. As a matter of common

sense, contact visits are far more likely to lead to smuggling

than initial arrests. Indeed, contrary to the evidence in this

case, the record in other cases has shown that “despite thor-

ough searches, contact visits result in the smuggling of contra-

band, particularly drugs.” Toussaint v. McCarthy, 801 F.2d

1080, 1114 (9th Cir. 1986), abrogated in part on other

grounds by Sandin v. Connor, 515 U.S. 472 (1995). The

record in this case supports the conclusion that contraband

finds its way into the City’s jails through means other than

smuggling during arrest. The City has documented the pres-

ence of contraband in its cells. However, of approximately

2302 BULL v. SAN FRANCISCO

150,000 searches over a three-year period in the intake facil-

ity, the City could only produce evidence to the district court

of 78 incidents where contraband was discovered during an

intake strip search. None of those, of course, involved class

members.

Absent individualized reasonable suspicion or any evidence

at all that the class of plaintiffs here presented a risk of smug-

gling, the City is left to speculate that detainees are attempting

to smuggle contraband into detention centers by concealing

contraband during arrest. Indeed, the City has suggested that

some detainees get arrested just to smuggle contraband into

prisons. There is not even anecdotal support for this notion,

which is impermissibly founded only “on the gossamer

threads of whimsey, speculation and conjecture.” Hahn v.

Sargent, 523 F.2d 461, 467 (1st Cir. 1975) (quoting Manga-

naro v. Delaval Separator Co., 309 F.2d 389, 393 (1st Cir.

1962)). There is just no evidence at all in the record that class

members pose any risk to the security of San Francisco jails.

We are asked to ignore this stark record on the theory that

we ought always defer to jailors on matters of security,

whether or not the government can make a plausible showing

that a security risk exists at all. Of course, deference to prison

administrators is instrumental in maintaining prison security.

See Bell, 441 U.S. at 547. Such deference is ingrained into our

system of judicial review. See generally Pell v. Procunier,

417 U.S. 817, 827 (1974). However, “blind deference to cor-

rectional officials does no real service to them.” Wolff, 418

U.S. at 588 (Marshall, J., dissenting) (quoting Palmigiano v.

Baxter, 487 F.2d 1280, 1283 (1st Cir. 1973)). The Supreme

Court has instructed that deference has its limits. A policy of

judicial restraint cannot encompass any failure to take cogni-

zance of valid constitutional claims whether arising in a fed-

eral or state institution. “[I]f the prison authorities do not

conform to constitutional minima, the courts are under an

obligation to take steps to remedy the violations.” Rhodes v.

BULL v. SAN FRANCISCO 2303

Chapman, 452 U.S. 337, 362 (1981) (Brennan, J., concur-

ring). Our deference reaches its limits here.

D

The realities of the constitutional issues here at stake are far

from trivial. The Seventh Circuit has described strip searches

as “demeaning,” “dehumanizing,” and “repulsive.” Mary Beth

G., 723 F.2d at 1272. The Tenth Circuit has called them “ter-

rifying.” Chapman v. Nichols, 989 F.2d 393, 396 (10th Cir.

1993). The Eighth Circuit has called them “humiliating.”

Hunter v. Auger, 672 F.2d 668, 674 (8th Cir. 1982).

Many reports document the unfortunate connection

between strip searches and sexual abuse of prisoners. See

Cheryl Bell et al., Rape and Sexual Misconduct in the Prison

System: Analyzing America’s Most “Open” Secret, 18 YALE

L. & POL’Y REV. 195, 203 (1999) (“Female inmates have also

reported that guards improperly touch them while performing

body searches.”).5

One need only look to the record before us to find troubling

instances of abuse during the strip search process. The named

plaintiff, Mary Bull, was arrested for vandalism during a

political protest. She claims that after she declined to consent

to a body cavity search, she was told that unless she con-

sented, she would be forcibly strip searched. She alleges that

an officer told her that if she did not consent, she would be

“thrown into a cold room, naked, for 24 hours.” She declined

to consent, and describes what happened next:

I was then forcibly strip searched in an area visible

5

See also Amnesty International, “Not part of my sentence”: Violations

of the Human Rights of Women in Custody, http://www.amnestyusa.org/

document.php?id=D0F5C2222D1AABEA8025690000692FC4&lang=e

(last visited October 1, 2009) (detailing instances of sexual abuse occur-

ring during strip searches).

2304 BULL v. SAN FRANCISCO

to persons not participating, my clothes were pulled

off, my legs were thrown into a squatting position

while I was lying on the floor in front of male offi-

cers. My genital and rectal areas were inspected.

During the search, Bull’s “face was smashed against the con-

crete” by the prison officials. She was then left naked in a

cold room for twelve hours. In the morning, she was removed

from the cell and again informed that she was required to con-

sent to a strip search. She declined. She was forcibly strip

searched again, and again left naked in a cold room for

another twelve hours. She was then released on her own

recognizance. She has never been charged with any offense.6

Salome Mangosing, arrested for public drunkenness,

6

The majority characterizes the lead plaintiff Bull’s complaint solely as

a challenge to the jail’s safety cell policy. The objection of the majority

to a reference to a plaintiff who also challenges the safety cell policy is

somewhat puzzling, given that the majority’s entire argument rests on the

contraband found during strip searches of out-of-class members. Never-

theless, Bull’s actual allegations are much broader than a challenge to the

safety cell policy. She was placed in a safety cell for a portion of her incar-

ceration, and the district court denied her summary judgment because of

genuine issues of material fact concerning the particular circumstances of

her search. However, the reason Bull was placed in a safety cell was

because she refused to consent to be strip searched. At that time, all

arrestees were asked to sign a form consenting to a strip search. However,

if the detained person declined to sign it, he or she was strip searched any-

way. According to an officer involved in Bull’s detention, refusal to sign

a consent form constituted “bizarre” behavior fitting the criterion of place-

ment in a safety cell because “it impeded the intake process.” In her affi-

davit, Bull claims that an officer told her that if she did not submit to a

body cavity search she “would be thrown into a cold room, naked, for 24

hours.” Bull did not consent and was forcibly strip-searched in the safety

cell. She testified that she was left in the cell, naked, overnight. In the

morning, she was removed from her cell and informed that she had to con-

sent to a second body cavity search. She objected, and was forcibly body-

cavity searched a second time. She testified that she was again left naked

in a cell, but later assigned to a room with eight bunk beds, where she

stayed until her release.

BULL v. SAN FRANCISCO 2305

alleges that she was kicked repeatedly during her search while

she lay prostrate on the ground. According to Mangosing, one

prison official placed her foot on Mangosing’s neck while

another twisted her arm behind her back. Mangosing was

forced to remain naked for twelve hours.

Michael Marron, who was arrested for alleged credit card

fraud at a local hotel, was strip searched, and allegedly beaten

and left naked in a cell for over ten hours. Michele De Ran-

leau who was arrested for illegal lodging, allegedly was strip

searched twice, and left in a cell naked for twelve hours. All

charges were dropped.

Laura Timbrook was arrested for writing checks on an

account with insufficient funds and body cavity searched

twice. Deborah Flick alleges she was arrested for public

intoxication, forcibly strip searched and left naked and bleed-

ing in a cell overnight. The record contains other similar

examples. Many of the persons who testified to this treatment

were never charged with any crime and never actually housed

in the general jail population.

That abuse often accompanies mandatory body cavity

searches should not surprise us. Body cavity searches dehu-

manize those who are subject to them, and those performing

routine searches in volume become desensitized to the inva-

sion of body privacy. Enforcing the minimal constitutional

right of individualized consideration of risk forces officers to

view those arrested as individual humans, rather than as

booking-numbered objects to be processed.7

A policy that so severely erodes human dignity and

intrudes upon constitutional rights requires strong justifica-

tion. We have, in the past, afforded proper deference when

7

See generally PHILIP ZIMBARDO, THE LUCIFER EFFECT: UNDERSTANDING

HOW GOOD PEOPLE TURN EVIL (2007) (describing the effect of the Stanford

prison experiments on guard and inmate interaction).

2306 BULL v. SAN FRANCISCO

presented with evidence of legitimate security concerns. How-

ever, San Francisco not only fails to offer any evidence that

arrestees belonging to the class of plaintiffs smuggled contra-

band into the jail, it does not even offer a plausible, hypotheti-

cal justification for its policy, aside from minor bureaucratic

inconvenience. Proper deference cannot be founded on a com-

plete absence of proof. Judicial review cannot be halted when

the government’s rationale is simply “because I said so.”

Under proper, deferential judicial review, San Francisco’s for-

mer mandatory body cavity search policy cannot pass consti-

tutional muster.

E

Concluding that the policy at issue violates the arrestees’

Fourth Amendment rights falls squarely in line with the law

of the vast majority of our sister circuits. In justifying the strip

search policy, the majority overrules two bedrock Fourth

Amendment cases: Giles v. Ackerman and Thompson v. City

of Los Angeles. These cases are not just widely-cited by our

circuit, they are accepted throughout the circuits. The majority

exiles us from the legal mainstream.

The circuits are near-unanimous in rejecting the majority’s

contention that Bell eliminated the reasonable suspicion

requirement for conducting a strip search. The Second Circuit,

for example, in holding a policy of strip searching all

arrestees unconstitutional, determined that Bell “did not . . .

read out of the Constitution the provision of general applica-

tion that a search be justified as reasonable under the circum-

stances. The imposition of a standard short of probable cause

in determining the balance of interests at stake in [Bell] in no

way dispensed with that requirement.” Weber v. Dell, 804

F.2d 796, 800 (2d Cir. 1986), cert. denied, 483 U.S. 1020

(1987).

The First Circuit has also found that Bell did not eliminate

the reasonable suspicion requirement. Swain v. Spinney, 117

BULL v. SAN FRANCISCO 2307

F.3d 1, 7 (1st Cir. 1997). The Swain court found unconstitu-

tional a strip search of a woman arrested on suspicion of theft

and possession of marijuana. The court held that “it is clear

that at least the reasonable suspicion standard governs strip

and visual body cavity searches in the arrestee context” and

that “courts have concluded that, to be reasonable under Wolf-

ish, strip and visual body cavity searches must be justified by

at least a reasonable suspicion that the arrestee is concealing

contraband or weapons.” Id.; see also Wood v. Hancock

County Sheriff’s Dep’t, 354 F.3d 57, 62 (1st Cir. 2003) (“Our

case law holds that an individual detained on a misdemeanor

charge may be strip searched as part of the booking process

only if officers have reasonable suspicion that he is either

armed or carrying contraband.”). Notably, the arrestee in

Swain would not have been eligible for class membership in

the case before us because she was arrested for possession of

a controlled substance.

Other circuits have similarly found policies like the one

before us unconstitutional. See Masters v. Crouch, 872 F.2d

1248, 1253-54 (6th Cir. 1989) (“Bell v. Wolfish does not vali-

date a blanket policy of strip searching pretrial detainees. Bell

v. Wolfish authorizes particularized searches where objective

circumstances indicate such searches are needed to maintain

institutional security.”), cert. denied, 493 U.S. 977 (1989);

Jones v. Edwards, 770 F.2d 739, 740, 742 (8th Cir. 1985)

(holding unconstitutional the strip search of a detainee

arrested for allowing his dog to run wild and stating that “se-

curity cannot justify the blanket deprivation of rights of the

kind incurred here”); Stewart v. Lubbock County, 767 F.2d

153, 156 (5th Cir. 1985) (holding unconstitutional under

Bell’s balancing test a strip search policy applied to minor

offenders “when no reasonable suspicion existed that they as

a category of offenders or individually might possess weapons

or contraband”), cert. denied, 475 U.S. 1066 (1986); Hill v.

Bogans, 735 F.2d 391, 394 (10th Cir. 1984) (holding that

intermingling with prison population absent any circum-

stances or prior offenses suggesting the possibility of conceal-

2308 BULL v. SAN FRANCISCO

ing weapons or contraband was insufficient to warrant a strip

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

(“An indiscriminate strip search policy routinely applied to

detainees such as Logan along with all other detainees cannot

be constitutionally justified simply on the basis of administra-

tive ease in attending to security considerations.”), cert.

denied, 455 U.S. 942 (1982).

The majority cites with approval the recent Eleventh Cir-

cuit case Powell v. Barrett, 541 F.3d 1298 (11th Cir. 2008)

(en banc). Powell is alone among the circuits. Id. at 1315-16

(Barkett, J., dissenting) (“For almost thirty years, circuit

courts have followed the Bell Court’s instructions and, until

today, universally held that reasonable suspicion is necessary

to constitutionally justify the types of searches before us.”).

Powell is also inapposite because the policy in that case man-

dated searches far less intrusive than the ones here. Under the

policy in Powell, arrestees were required to undress and pro-

ceed to a large room with thirty to forty other arrestees to

shower. After showering, the arrestees were “inspected” front

and back by deputies. Id. at 1301. The policy did not mandate

the far more degrading and invasive body cavity searches

required by the San Francisco policy. As we have seen, the

Fourth Amendment requires a “balancing of the need for the

particular search against the invasion of personal rights that

the search entails.” Bell, 441 U.S. at 559. The searches in

Powell were far less intrusive than the searches here, requir-

ing less justification for those searches. If Powell has any per-

suasive power, it is that the justification for the body cavity

searches in the case before us must be much more compelling

than the justification for the tamer searches in Powell.

The above-described opinions from the First, Second,

Fourth, Fifth, Sixth, Eighth, and Tenth Circuits—and the fact

that for twenty-eight years the Supreme Court has repeatedly

declined to comment—clearly show that the majority’s inter-

pretation of Bell falls far outside the existing jurisprudence.

BULL v. SAN FRANCISCO 2309

The conclusion is clear: the City’s policy of routine, man-

datory, suspicionless body cavity searches of those arrested

for minor offenses who pose no credible risk of concealing

contraband is unconstitutional.

III

In a qualified immunity analysis, we must also consider

whether the constitutional right violated by Defendants was

clearly established at the time of the search. See Pearson v.

Callahan, 129 S. Ct. 808, 816 (2009); Saucier v. Katz, 533

U.S. 194, 201 (2001). “The relevant, dispositive inquiry in

determining whether a right is clearly established is whether

it would be clear to a reasonable officer that his conduct was

unlawful in the situation he confronted.” Saucier, 533 U.S. at

202. The key 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).

The City’s challenged strip search policy was in place until

January 2004. It was clearly established by that time that con-

ducting strip searches of pre-arraignment arrestees based

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

general jail 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. As the dis-

trict court in this case rightly observed: “It was . . . abundantly

clear after Thompson that placement in the general jail popu-

lation cannot [sic] ‘by itself cannot justify a strip search.’ ”

Bull v. City & County of San Francisco, No. 03-01840, 2006

WL 449148, at *16 (N.D. Cal. Feb. 23, 2006).

Moreover, we have explicitly held several times that it was

clearly established that strip search policies similar to San

Francisco’s are unconstitutional. In Ward, we concluded that

“the law was sufficiently clear in early 1981 so as to expose

a public official who unreasonably authorized blanket strip

2310 BULL v. SAN FRANCISCO

searches of minor offense arrestees to civil liability under 42

U.S.C. § 1983.” Ward, 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, San

Francisco’s policy also applied to minor offense arrestees,

such as those at issue in Ward. See also Act Up!/Portland v.

Bagley, 988 F.2d 868, 871-72 (9th Cir. 1993) (noting that by

1989, it was clearly established that it was unconstitutional to

strip search a detainee arrested for a minor offense without

reasonable suspicion that the individual arrestee was carrying

or concealing contraband; reasonable suspicion was based on

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

ance and conduct, and the prior arrest record).

Defendants argue that the large amount of documentary

evidence they have produced distinguishes this case from

other strip search cases. Because no other case confronted

such a well-documented problem, Defendants contend, the

law was not clearly established. However, the specific facts of

previous cases need not be materially or fundamentally simi-

lar 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. See Hope v.

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

The fact that San Francisco documented a contraband

smuggling problem does not muddy the clarity of the law.

The evidence Defendants produced to the district court shows

only that contraband was a significant problem in San Fran-

cisco jails generally; it does not demonstrate that persons eli-

gible for inclusion in this class of plaintiffs contributed

significantly, or even at all, to that problem. Therefore, San

Francisco’s policy is not different enough from policies that

we have held unconstitutional to suggest that the rights vio-

lated by the policy were not clearly established.8 Sheriff Hen-

nessey is not entitled to qualified immunity.

8

That the majority overturns two seminal strip search cases Giles and

Thompson—is further evidence that, at the time of the strip search policy,

the rights violated by the policy were clearly established.

BULL v. SAN FRANCISCO 2311

IV

For decades, we have followed Supreme Court precedent

and required that body cavity strip searches of arrestees be

based on reasonable suspicion, created either by individual

circumstances or reasonable objective factors. Today, we

depart from that commonsense approach and sanctify routine,

mandatory, indiscriminate, suspicionless body cavity searches

for anyone arrested and classified to the general jail popula-

tion, regardless of how petty the offense. The record in this

case does not support this abrupt divergence from established

law. Indeed, the only conclusion this record supports is that

persons with no criminal history arrested for trivial offenses

pose no credible risk of smuggling contraband into jails. The

reinstallation of a more constitutionally sound policy has,

according to government filings, worked well and has struck

“the right balance between safety and the rights of inmates.”

Our longstanding precedent also struck the right balance. It

allowed strip searches of those whose arrest charges, criminal

history, probation status, or suspicious behavior would create

a reasonable justification for believing the person arrested

might be concealing contraband in a body cavity. It precluded

jailors from strip searching those who posed no credible risk

of secreting contraband. Rather than bringing competing

interests into equilibrium, today’s decision removes the bal-

ancing scales altogether — to the detriment of constitutional

rights and human dignity.

Nor should we take solace in the fact that every person is

subject to a humiliating strip search, whether it be Sister Ber-

nie Galvin, an honored long time community advocate for the

poor who was arrested at an anti-war rally, or a pusher armed

with weapons and caught in a crack house. Our constitutional

oath requires us to do justice—not injustice—without respect

to persons. Invading the rights of everyone, regardless of

whether we have reason to suspect them or not, should give

no one illusory comfort that we are providing justice for all.

I respectfully dissent.