Challenge to D.C. Strip-Search Policy Tossed Out

     (CN) – Female prisoners who say they were unconstitutionally strip-searched prior to their post-arrest hearings in Washington cannot seek damages, the D.C. Circuit ruled.
     Dianna Johnson and Rubbiya Muhammed led a class of women suing the District of Columbia and U.S. Marshal Todd Dillard in 2002, challenging the constitutionality of strip-searches to which they were subjected while awaiting presentment hearings on nonviolent and nondrug-related charges in the district’s Superior Court.
     Dillard instituted the strip-search policy in the mid-to-late 1990s in response to concerns that detainees were bringing weapons, drugs and other contraband into the cellblock.
     As part of their prehearing processing, all incoming detainees were made to pass through a metal detector, then patted down by deputy marshals, and finally, were required to strip, squat, and cough to dislodge any hidden contraband.
     “We infer from the evidence presented that despite Dillard’s facially gender-neutral policy, deputy marshals in fact subjected male detainees to strip searches only upon individualized reasonable suspicion,” according to Friday’s appellate ruling. “By contrast, all women were forced to drop, squat and cough.”
     In their complaint the women contended that the searches, which were conducted regardless of whether they were suspected of having contraband on their persons, violated their Fourth Amendment rights, and, in instances where male arrestees were not similarly strip-searched, the Fifth Amendment’s equal protection guarantee.
     U.S. District Judge Rosemary Collyer nevertheless granted the district summary judgment in 2011, concluding that because the Dillard was a federal official acting under the color of federal law as he administrated the cellblock, the city had no authority to prevent the strip searches.
     Collyer also granted Dillard summary judgment on the basis of qualified immunity.
     Agreeing that the Superior Court marshal is not a district official, an appellate panel found Friday that “Dillard was hardly as much ‘part of the organic government of the District of Columbia … as the mayor.'”
     As such the district cannot be held liable for Dillard’s actions, according to the ruling.
     The class members could not prevail on an entrustment theory without showing that the district had actual or constructive notice of the allegedly unconstitutional strip-searches, and that it had discretion to stop sending pre-presentment arrestees to Dillard’s cellblock.
     Ultimately the panel concluded that, because Dillard was acting under the color of federal law, “the district had no authority to prevent him from conducting strip searches of arrestees upon their arrival at the Superior Court.”
     Turning to the question of Dillard’s liability, the three-judge panel relied on its resolution of an earlier challenge to Dillard’s strip-search policy brought by male arrestees.
     The circuit had concluded in Bame v. Dillar that any Fourth Amendment rights Dillard might have violated “were insufficiently clearly established at the time of the violation.”
     In the case of the female arrestees, no equal protection violation occurred because “nothing in the record indicated that Dillard intended to treat women differently from men,” Judge David Tatel wrote for the court.
     “Finally, although Bame plaintiffs, like class members here, challenged the sufficiency of Dillard’s contraband justification, we concluded that ‘the record here substantiates Dillard’s point that the Superior Court had a persistent problem with contraband being smuggled into the cellblock, the very reason for strip searches.'”
     “Although class members obviously disagree with Bame, that decision is binding on us,” Tatel added. “As a result, Dillard is entitled to qualified immunity.”
     The women’s equal protection claim also failed.
     “Although class members point to some evidence from which we might infer that Dillard knew deputies were implementing his gender neutral policy in a gender imbalanced manner, plenty of other evidence suggests that Dillard was largely missing in action throughout the class period,” Tatel wrote
     He added: “But even assuming class members could show that Dillard knew what was going on at the cellblock, they have pointed to no evidence from which we could infer that Dillard himself intended to treat women differently from men … thus agree with the district court that ‘there is no circumstantial or direct evidence that Marshal Dillard purposefully directed that women and men be searched differently at the Superior Court cellblock.'”
     In a concurring opinion, Judge Judith Rogers emphasized that the court should have clearly established – as she said 10 others circuits have – that “indiscriminate strip searching of individuals awaiting presentment on non-violent, non-drug offenses who are not held in the general population is unconstitutional under the Fourth Amendment … in the absence of reasonable suspicion an individual possesses contraband or weapons.”
     Perhaps anticipating Rogers’ concerns, Tatel noted that, since the women filed their lawsuit, the policies applied to arrestees temporarily housed in the D.C. Superior Court’s cellblock had changed and strip-searches are now conducted only in cases of individualized reasonable suspicion.
     As a result, there was no reason to get into the broader constitutional question of whether such searches should be allowed to continue, according to the ruling.

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