Monday, March 28, 2011
A sharply split panel of the D.C. Circuit ruled on Friday that strip searches of persons arrested for non-violent, non-drug-related misdemeanors did not violate clearly established Fourth Amendment rights in 2002, even absent particularized suspicion that the arrestee was concealing contraband or weapons. The ruling in Bame v. Dilland means that the defendant, a former U.S. Marshal whose deputies conducted the searches, enjoys qualified immunity against the plaintiffs' Bivens action against him.
Plaintiffs were protestors at the 2002 meeting of the IMF and World Bank in D.C. Each was charged with either "incommoding traffic" or "failure to obey" a law enforcement officer, both misdemeanors. Deputy Marshals strip searched them in a receiving cell before placing them in a holding cell to await disposition of the charges.
Judge Ginsburg wrote for himself and Judge Williams that the case was governed by Bell v. Wolfish (1979), in which the Supreme Court ruled that strip searches, without particularized suspicion, of pretrial detainees and convicted inmates in a "short-term custodial facility" did not violate the detainees' clearly established rights. Judge Ginsburg ruled that later cases from the Eleventh and Ninth Circuits--cases decided after 2002, when the strip searches occurred here--affirmed his understanding of Bell that strip searches did not violate clearly established rights.
Judge Rogers, dissenting, argued that every one of the ten circuits to rule on the issue by 2002 ruled that under Bell suspicionless strip searches of pre-trial arrestees charged with non-violent minor offenses was unreasonable and thus unconstitutional. Any subsequent cases do not impact the constitutionality of the searches in 2002: "A decrease in clarity of the law after 2002 would not make a strip search in 2002 more reasonable." Dissent at 17. In conclusion:
As troubling as the majority's low opinion is of what "a reasoanbly competent public official" ought to know of the law under Harlow and its progeny, more troubling are the implications of the majority opinion for the protection of Constitutional rights. . . . . The majority's approach means that there are no objective limits to the scope of qualified immunity because a court may one day hold that the settled consensus of persuasive authority misapprehended a Supreme Court opinion on the requirements of the Constitution. . . . .