Wednesday, August 27, 2008

Fourth Amendment; Strip Searches Restricted: Bull v. City and Co. of S.F., 539 F.3d 1193 (9th Cir. 2008)

Strip Searches Bull v. City & County of San Francisco 539 F.3d 1193 (9th Cir. 2008) August, 2008 [B]y disregarding jail administrators urgent concerns about serious contraband smuggling problems, I agree with the [dissenting judge] that we are potentially putting lives in the San Francisco detention system at serious risk. This quote reflects the opinion of a Ninth Circuit judge reluctantly concurring with the decision of another judge in the three judge panel. The author of the lead opinion denied San Francisco authorities the right to conduct body cavity searches of pre detention arrestees transferred to the general jail population unless evidence of reasonable suspicion or other limited conditions justifying a search exists. And this language from the same concurring judge in Bull: By effectively eliminating . . . security concerns from our calculus, we contradict Supreme Court precedent and common sense and take upon ourselves a rule unsuited for the courts . . . 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 v. Wolfish, 441 U.S. 520 (1979). No one doubts the serious invasion of privacy implicated in strip searches. But the privacy factor in jails and prisons differs substantially from any other category of search by public officials. The dissenting judge in Bull writes of the Ninth Circuits serious departure from the Supreme Court acknowledgment of this factor in its Fourth Amendment jurisprudence. San Francisco produced extensive and overwhelming evidence of drug smuggling in the jails and the inability to exercise control in the absence of searching authority. The Fourth Amendment requires all searches conducted by public officials must be reasonable but that word and its application are contingent on the context. The Supreme Court in Bell balanced the significant and legitimate security interests of the institution (jail) against the privacy interest of the inmates, and held a visual cavity inspection . . . can . . . be conducted on less than probable cause. Other language in Bell clearly recognizes the need for strip searches in jail facilities. Despite this clear approval of strip searches by the Supreme Court, the Ninth Circuit undertook its own analysis of institutional and privacy interests and basically ignored the Bell decision. Strip searches, according to the majority panel, violate our clearly established (by the Ninth Circuit) Fourth Amendment rights. The author of the lead opinion in Bull disposed of Bell in one paragraph and cites contrary Ninth Circuit precedent as authority for the following rule: Unless the pre detention inmate was arrested for weapons violations, drug offenses, violence, violation of probation or parole, or manifests individualized suspicion, and despite eventually housing them in the general jail population, jailors may not conduct strip searches. The lead opinion in Bull ignores the fact that those arrested in categories unrelated to those subject to search described above can also conceal weapons or contraband. The criminal record of an arrestee jailed for any offense is often unknown at intake. Similarly, whether an arrestee is on parole or probation is often unknown until time develops a record match. Gangs are notorious for intimidating other inmates in the prison population or demanding they obtain narcotics. The concurring judge in Bull is correct. The judiciary is the least equipped institution to render the kind of decision in Bull. Undoubtedly a rehearing or rehearing en banc will ensue if, for no other reason, based on the language of the concurring judge who felt bound by Ninth Circuit precedent but clearly expressed disagreement with the result. Bull squarely contradicts Supreme Court precedent, and the Justices should review this Ninth Circuit opinion unless withdrawn, amended, or reheard and reversed by itself or the full panel. Note: this case was submitted November 6, 2007 and decided August 25, 2008-nine months later. The Ninth Circuit has granted a rehearing en banc in this case: 558 F.3d 887 (9th Cir. 2009).

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