Bull v. City and County of San Francisco

IKUTA Circuit Judge,

concurring:

I concur in the majority’s opinion with reluctance and grave concern. While compelled by Ninth Circuit case law, the disposition is in tension with Supreme Court precedent.

Moreover, by disregarding the jail administrators’ urgent concerns about a serious contraband smuggling problem, I agree with the dissent that we are potentially putting lives in the San Francisco detention system at risk.

A

In Bell v. Wolfish, the Court established basic principles for analyzing the constitutionality of “restrictions and practices that were designed to promote security and order” at a detention facility. 441 U.S. 520, 544 , 99 S.Ct. 1861 , 60 L.Ed.2d 447 (1979). The Court made clear that a detainee’s constitutional rights may be limited or retracted to further the goal of “maintaining institutional security and preserving internal order and discipline.” Id. at 546 , 99 S.Ct. 1861 . Because of the fundamental importance of internal security within a detention facility, “even when an institutional restriction infringes a specific constitutional guarantee ... the practice must be evaluated in the light of the central objective of prison administration, safeguarding institutional security.” Id. at 546-47 , 99 S.Ct. 1861 . Courts must accord “wide-ranging deference” to the judgment of detention facility administrators “in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.” Id. at 547 , 99 S.Ct. 1861 . Further, “in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations, courts should ordinarily defer to their expert judgment in such matters.” Id. at 548 , 99 S.Ct. 1861 (internal quotation marks omitted).

Applying these principles to the petitioners’ Fourth Amendment challenge, the Court upheld the detention facility’s policy of conducting a body-cavity search after a detainee had a contact visit with a person outside the facility. The Court made clear that a fact-intensive balancing test is necessary to determine whether a practice is reasonable for Fourth Amendment purposes:

The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. In each case it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider [1] the scope of the particular intrusion, [2] the manner in which it is *1203 conducted,[3] the justification for initiating it, and [4] the place in which it is conducted.

Id. at 559 , 99 S.Ct. 1861 (bracketed numbers added). While acknowledging that a body cavity search is intrusive, and that searches may on occasion be conducted in an abusive fashion, the Court focused primarily on the third and fourth factors: the unique nature of a detention facility, which is “fraught with serious security dangers,” id., and the central importance of maintaining the institution’s security, which is a key principle in analyzing all constitutional challenges to detention facility policies and practices, id. at 546-47 , 99 S.Ct. 1861 . The Court then readily concluded, after “[balancing the significant and legitimate security interests of the institution against the privacy interests of the inmates,” that the detention facility’s practice was reasonable under the Fourth Amendment. Id. at 560 , 99 S.Ct. 1861 .

In reaching this conclusion, the Court rejected the Second Circuit’s analysis, which had focused on whether there was sufficient evidence that detainees had smuggled contraband into the facility. Because the administrators “proved only one instance in the [detention facility’s] short history where contraband was found during a body-cavity search,” the Second Circuit had held that the “gross violation of personal privacy inherent in such a search cannot be outweighed by the government’s security interest in maintaining a practice of so little actual utility.” Id. at 558 , 99 S.Ct. 1861 (internal quotation marks omitted). By contrast, the Court concluded that the lack of evidence of actual contraband smuggling was of little import. Id. at 559 , 99 S.Ct. 1861 .

B

In this suit against the City and County of San Francisco, Bell requires us to balance “the significant and legitimate security interests of the institution” against the privacy rights of the plaintiff class of pre-arraignment detainees. See id. at 560 , 99 S.Ct. 1861 . As we have noted, 'the “intrusiveness of a body-cavity search cannot be overstated. Strip searches involving the visual exploration of body cavities is dehumanizing and humiliating.” Kennedy v. Los Angeles Police Dept., 901 F.2d 702, 711 (9th Cir.1989), abrogated on other grounds by Hunter v. Bryant, 502 U.S. 224 , 112 S.Ct. 534 , 116 L.Ed.2d 589 (1991). On the other hand, as correctly noted by the dissent, San Francisco has presented “a compelling record of dangerous smuggling activity” indicating that there is a “pervasive problem that imposes a serious security risk endangering both jail inmates and jail employees.” Dissent at 11498. San Francisco has emphasized that its strip search policy is needed to help mitigate the smuggling problems in the jail population. In considering whether the policy was reasonable, we must defer to the judgment of the jail administrators. See Bell, 441 U.S. at 547 , 99 S.Ct. 1861 . If we did so, and thereby followed the directive of the Supreme Court, we would be compelled to uphold the strip search policy as reasonable given the substantial evidence in the record illustrating the dire security needs facing the facility.

But Ninth Circuit precedent has wandered far from Bell , as the dissent points out. Beginning in 1984 with Giles v. Ackerman, 746 F.2d 614 (9th Cir.1984), overruled on other grounds by Hodgers-Durgin v. de la Vina, 199 F.3d 1037 (9th Cir.1999) (en banc), we disregarded Bell’s direction to give the detention facility administrator’s needs for “safeguarding institutional security” exceptional weight in determining whether a search policy is reasonable. See Bell, 441 U.S. at 547 , 99 S.Ct. 1861 . Instead, we held that a strip search of an arrestee for a minor offense was not constitutionally reasonable unless jail officials had a specific basis for sus *1204 pecting that individual of smuggling. Giles, 746 F.2d at 615 . Rejecting the district court’s conclusions and giving effectively no deference to the jail officials’ views, we held as a matter of law that strip searches of all arrestees booked into the jail at issue were “not necessary to protect the institution’s security interest,” and that “arrestees charged with minor offenses may be subjected to a strip search only if jail officials possess a reasonable suspicion that the individual arres-tee is carrying or concealing contraband.” Id. at 617 .

Although Giles may have justified its conclusion on the basis of appellate fact-finding specific to that case, i.e., that the jail facility in that case did not present security concerns, the Giles rule subsequently took on a life of its own. In Kennedy we concluded that the LAPD’s policy of conducting a strip search of all felony arrestees violated the Fourth Amendment. 901 F.2d at 710-14 . Rather than give due weight to the LAPD’s concerns “for safety, security, and the proper administration of the jail system,” id. at 713 (internal quotation marks omitted), we faulted the LAPD for failing to present class-specific information, stating that a “glaring omission from the LAPD’s justification is any documentation (or even assertion) that felony arrestees have attempted to smuggle contraband into the jail in greater frequency than misdemean- or arrestees.” Id. at 713 . Because the LAPD failed to adduce evidence regarding “the likelihood of the arrestee’s concealing drugs, weapons, or contraband,” id. at 714 , we held that the LAPD’s policy could not be “reasonably related to the penal institution’s interest in maintaining security,” id. at 713 .

Similarly, in Thompson v. City of Los Angeles, 885 F.2d 1439 (9th Cir.1989), we considered the Los Angeles County’s policy to strip search all new admittees to the county jail, and held that the reasonableness of the search depended on whether a specific arrestee’s offense was “sufficiently associated with violence to justify a visual strip search.” Id. at 1447 . In so holding, we rejected the County’s institutional concerns regarding placing individuals “into contact with the general jail population,” stating as a matter of law that “such a factor by itself cannot justify a strip search” because “such intermingling is ‘both limited and avoidable.’ ” Id. (quoting Giles, 746 F.2d at 618 ).

In each of these cases, we gave short shrift to Bell’s focus on the centrality of institutional security concerns and to its instruction to defer to detention facility officials’ judgment “in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations.” Bell, 441 U.S. at 548 , 99 S.Ct. 1861 (internal quotation marks omitted). Instead of balancing individual privacy concerns against the “significant and legitimate security interests of the institution,” id. at 560 , 99 S.Ct. 1861 , we have focused almost exclusively on the question whether detention facility administrators have an adequate basis for suspecting that individuals may be smuggling contraband. In doing so, we have essentially adopted the rationale of the Second Circuit, rejected by Bell , which gave controlling weight to the lack of specific evidence of a smuggling problem. In sum, the Ninth Circuit’s balancing test bears little relation to Bell’s.

C

Applying this circuit’s balancing test to the facts in this case, we could uphold San Francisco’s blanket policy of strip searching the plaintiff class of pre-arraignment detainees only if San Francisco presented some basis for suspecting that class of smuggling contraband. Because I agree *1205 with the majority .that San Francisco has not adduced evidence of contraband smuggling specific to the plaintiff class, and because I am bound by circuit precedent, I must reluctantly concur in the majority’s determination that the strip search policy was unconstitutional. See Cervato v. San Francisco Cmty. Coll. Dist., 26 F.3d 968 , 972 n. 16 (9th Cir.1994) (“In the absence of an en banc reversal or an intervening Supreme Court decision ... we are bound by circuit law.”). Moreover, because our circuit precedent clearly mandates this result, I must also concur in the majority’s determination that Sheriff Hennessey is not entitled to qualified immunity.

This result, however, ignores San Francisco’s warnings that the smuggling problems in the San Francisco detention system are grave. It also ignores the jail administrators’ determination that mandatory strip searches of all persons entering the general jail population are needed to address this problem. By effectively eliminating such security concerns from our calculus, we contradict Supreme Court precedent and common sense and take upon ourselves a role unsuited for the courts. As the Supreme Court noted, judges must guard against the all-too-human tendency “to believe that their individual solutions to often intractable problems are better and more workable than those of the persons who are actually charged with and trained in the running of the particular institution under examination.” Bell, 441 U.S. at 562 , 99 S.Ct. 1861 . Because we have dangerously substituted our judgment for the judgment of jail administrators, a reconsideration of óur case law is urgently needed.