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1 LAW OFFICES OF MARK E. MERIN Mark E. Merin, SBN. 043849
2 Jeffrey I. Schwarzschild, SBN. 192086 2001 P Street, Suite 100
3 Sacramento, California 95814 Telephone: (916) 443-6911
4 Facsimile: (916) 447-8336

5 Attorneys for Plaintiffs

6

—o0o—

7

UNITED STATES DISTRICT COURT

8

NORTHERN DISTRICT OF CALIFORNIA

9

—o0o—

10 MARY BULL, JONAH ZERN, and all others similarly situated,
11
Plaintiffs, 12
vs. 13

CASE NO: C 03-1840 CRB CLASS ACTION COMPLAINT DEMAND FOR JURY TRIAL

CITY AND COUNTY OF SAN FRANCISCO; 14 SAN FRANCISCO COUNTY SHERIFF’S
DEPARTMENT; SAN FRANCISCO COUNTY 15 SHERIFF MICHAEL HENNESSEY, in his
individual and official capacity, and SAN 16 FRANCISCO COUNTY SHERIFF’S DEPUTIES
DOES 1 THROUGH 150, 17

Defendants. 18

19 PLAINTIFFS ALLEGE:

20

INTRODUCTION

21

This is an action for declaratory and injunctive relief, damages, and punitive damages against

22 the CITY AND COUNTY OF SAN FRANCISCO, its SHERIFF, MICHAEL HENNESSEY,

23 SHERIFF’S DEPARTMENT, and SHERIFF DEPUTIES sued herein by their fictitious names for

24 violations of plaintiffs’ constitutional rights resulting from application of the city and county of San

25 Francisco’s and the Sheriff’s policies, practices, and customs concerning the use of strip searches,

26 visual body cavity searches and “cold rooms” in the San Francisco County Jail. Plaintiffs seek an

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1 order declaring illegal defendants’ policy of subjecting detainees in their custody to strip and visual

2 body cavity searches before they are arraigned and without having any reasonable suspicion that the

3 searches will be productive of contraband.

4

Plaintiffs also seek declaratory and injunctive relief, damages, and punitive damages against

5 the defendants for the policy, practice, and custom of placing detainees, naked, in rooms referred to as

6 “cold rooms,” without any legitimate purpose, but in order to compel consent to illegal strip searches,

7 to punish persons who question illegal practices, or for other illegal purposes. These cold rooms are

8 kept bone chillingly cold, lack access to natural light and are devoid of furniture and running water.

9 The cold rooms are constantly illuminated by flourescent lighting and persons confined in them can

10 only sit or lie on the bare floor. Defendants’ use of the “cold rooms” violates Sections 1055 and 1083

11 of Title 15 of the California Code of Regulations which specify that isolation or “safe rooms” which

12 may have legitimate psychological uses cannot be used for punishment and that persons confined

13 therein must be provided with adequate bedding and clothing.

14

Defendants’ strip search, visual body cavity search, and cold room policies, practices, and

15 customs violate plaintiffs’ rights secured to them by the Fourth and Fourteenth Amendments to the

16 U.S. Constitution and entitle plaintiffs to recover damages under the Federal Civil Rights Act (42

17 U.S.C. § 1983).

18

Additionally, plaintiffs include supplemental claims under California state law against

19 defendants: 1) for violation of California Penal Code § 4030 which prohibits pre-arraignment strip

20 searches of most misdemeanents and provides for minimum damages of $1,000 for each illegal search;

21 2) for wholesale violation of Sections 1055 and 1083 of Section 15 of the California Code of

22 Regulations (promulgated under the authority of California Penal Code § 6030) which describes the

23 very narrow conditions under which a cold room can be used; and, 3) for violation of the Unruh Civil

24 Rights Act (California Civil Code §§ 52 and 52.1(b)) pursuant to which each plaintiff denied a

25 statutory or state or federal Constitutional right is entitled to recover a minimum of $4,000 for each

26 violation.

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1

JURISDICTION

2

1. This action is brought pursuant to 42 USC § 1983 and 1988, and the Fourth and

3 Fourteenth Amendments to the United States Constitution. Jurisdiction is founded upon 28 USC §

4 1331 and 1341(3) and (4) and the aforementioned statutory and constitutional provisions.

5

2. The court has supplemental jurisdiction over plaintiffs’ state claims under 28 USC §

6 1367(a).

7

3. The amount in controversy exceeds $10,000, excluding interest and costs.

8

PARTIES

9

4. Plaintiffs, including MARY BULL and JONAH ZERN, and all those similarly situated,

10 are, and at all material times herein, were citizens of the United States and residents of the state of

11 California who were arrested within the period beginning three (3) years before February 10, 2003,

12 and continuing to this date, and who were subjected to strip and/or visual body cavity searches at a

13 San Francisco County Jail (hereinafter referred to as the “San Francisco Jail”), prior to being arraigned

14 and/or without the defendants first having, and recording in writing, a reasonable suspicion that the

15 searches would be productive of contraband or weapons.

16

5. Some plaintiffs, including MARY BULL, were confined by defendants in “cold rooms”

17 at the San Francisco Jail to coerce compliance with illegal orders or for punishment in violation of

18 their state and federal statutory and constitutional rights.

19

6. Defendant CITY AND COUNTY OF SAN FRANCISCO SHERIFF MICHAEL

20 HENNESSEY is, and at all material times referred to herein, was the duly elected Sheriff of the city

21 and county of San Francisco, responsible for administering the Jail facilities and for making,

22 overseeing, and implementing the policies, practices, and customs challenged herein relating to the

23 operation of the San Francisco Jail. He is sued in his individual and official capacities.

24

7. Defendants SAN FRANCISCO COUNTY SHERIFF DEPUTIES sued herein by their

25 fictitious names (Does 1 through 150) are all deputies who, as part of their duties at the San Francisco

26 Jails, subjected plaintiffs to pre-arraignment strip and/or visual body cavity searches without first

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1 having, and recording in writing, a reasonable suspicion that the searches would be productive of

2 contraband or weapons. Furthermore, Defendants SAN FRANCISCO COUNTY SHERIFF

3 DEPUTIES sued herein by their fictitious names (Does 101 through 150) are all deputies who, as part

4 of their duties at the San Francisco Jail, confined plaintiffs in “cold rooms” to gain compliance with

5 illegal order or to punish plaintiffs.

6

8. At all material times mentioned herein, each of the defendants was acting under the

7 color of law, to wit, under color of statutes, ordinances, regulations, policies, customs and usages of

8 the State of California, the CITY AND COUNTY OF SAN FRANCISCO and/or the SAN

9 FRANCISCO COUNTY SHERIFF .

10

9. Defendant CITY AND COUNTY OF SAN FRANCISCO is, and at all material times

11 referred to herein, was, a division of the state of California, that maintained or permitted an official

12 policy or custom or practice causing or permitting the occurrence of the types of wrongs complained

13 of herein, which wrongs damaged plaintiffs as herein alleged. Plaintiffs’ allegations against the

14 COUNTY are based on acts and omissions of the SHERIFF and his deputies and on acts and

15 omissions of persons who are COUNTY employees, and on the COUNTY’s breach of its duty to

16 protect plaintiffs from the wrongful conduct of said persons and employees.

17

10. Defendants SAN FRANCISCO COUNTY SHERIFF’S DEPARTMENT and SAN

18 FRANCISCO COUNTY SHERIFF MICHAEL HENNESSEY, in his individual and official capacity,

19 also maintained or permitted an official policy or custom or practice causing or permitting the

20 occurrence of the types of wrongs complained of herein, which wrongs damaged plaintiffs as herein

21 alleged.

22

11. Class action plaintiffs are those similarly situated who, during the period beginning

23 three (3) years before February 10, 2003, and continuing to this date, were subjected by defendants to

24 pre-arraignment strip and/or visual body cavity searches without defendants having, and recording in

25 writing, a reasonable suspicion that the searches would be productive of contraband or weapons.

26 Some of the similarly situated plaintiffs were placed by defendants in “cold rooms,” in order to

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1 compel compliance with illegal orders or as punishment and without defendants meeting the

2 requirements governing the use of such rooms.

3

FACTS

4

12. On or about November 18, 2002, plaintiff MARY BULL, along with many others, was

5 arrested at a demonstration on Market Street, in San Francisco and charged with vandalism. Ms.

6 BULL was taken to the San Francisco Jail, arriving in mid-afternoon. At approximately 6:00 p.m.,

7 Ms. BULL was taken to an area to be “dressed-in.” A Sheriff’s deputy (Doe 1) prepared an inventory

8 of Ms. BULL’s clothing and directed Ms. BULL to sign three documents, one of which was a consent

9 to strip search which Ms. BULL refused to sign. Her “dress-in” was terminated, and she was returned

10 to a holding cell and held for a “classification” interview.

11

13. Three hours later, Ms. BULL was returned to a dress-in room and again directed to

12 consent to a visual body cavity search. Upon her refusal to consent to the visual body cavity search,

13 Ms. BULL was taken from the “dress-in” area, to the center of the “bull pen” where she was

14 confronted by several officers, male and female, one of whom told her that if she did not voluntarily

15 submit to a visual body cavity search she would be thrown into a cold room, naked, for 24 hours.

16 When Ms. BULL again declined to submit to the visual body cavity search, defendants moved her into

17 the “cold room,” where she was subjected to a forcible visual body cavity search by Does 2 through 5.

18

14. During the search, a male deputy (Doe 2) entered the room and watched as Ms.

19 BULL’s clothes were pulled off, three deputies (Does 3 through 5) forced her to lie on her back,

20 naked, bent her legs towards her chest, and visually inspected her genital and rectal areas. Ms. BULL

21 was then left naked in the “cold room” and the metal door shut.

22

15. While Ms. BULL was in the “cold room,” she was shocked every few minutes by a

23 sheriff’s deputy (Does 6 through 10) smashing a baton repeatedly against the door. The smashing of

24 the baton on the unfurnished “cold room’s” metal door caused an unbearably loud, nerve-shattering

25 noise, that prevented Ms. BULL from sleeping or resting and caused her to suffer extreme anxiety and

26 emotional distress.

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1

16. During her time in the “cold room,” Ms. BULL was provided with neither clothing for

2 her personal privacy nor with blankets or bedding as for a modicum of comfort. Ms. BULL is

3 informed and believes, and thereon alleges, that Defendants have a policy, practice, and custom of

4 utilizing confinement in the “cold room” as punishment for non-violent, non-suicidal, and non-

5 destructive detainees who are dubbed “non-compliant” and that such a policy, practice, and custom

6 violates the Constitution and laws of the State of California and the United States of America.

7

17. At approximately 9:00 a.m. on November 19, 2002, Ms. BULL was removed from the

8 “cold room,” issued some prison clothing, and placed in a holding cell with other detainees. She was

9 interviewed for release on her own recognizance and taken upstairs where she was again directed to

10 consent to a visual body cavity search by Doe 11. Again, Ms. BULL is informed and believes, and

11 thereon alleges, that defendants had no reasonable suspicion that a visual body cavity search would

12 result in the discovery of contraband or weapons.

13

18. Ms. BULL explained to Doe 11 that the California and United States’ Constitutions

14 and the state penal code preclude such strip searches and declined to cooperate. Ms. BULL was taken

15 into another “cold room,” and again subjected to a forcible visual body cavity search by Does 11

16 through 15. Ms. BULL was left naked in the “cold room” and later assigned to a cell with

17 approximately eight bunkbeds. At about 10:00 p.m., more than 30 hours after she was arrested, Ms.

18 BULL was released on her own recognizance having never been arraigned.

19

19. On or about January 18, 2003, plaintiff JONAH ZERN was arrested along with others

20 at a peace rally in San Francisco. Mr. ZERN was taken to the San Francisco Jail where he held for

21 two days before being released on his own recognizance without being arraigned. Shortly after his

22 arrival at the San Francisco Jail, Mr. ZERN was taken to a curtained off area where a Sheriff’s deputy,

23 Doe 16, directed him to remove all his clothes. The Sheriff’s deputy, Doe 16, then conducted a visual

24 body cavity search of Mr. ZERN wherein Mr. ZERN had to bend over, spread his buttocks, and cough.

25 Mr. ZERN is informed and believes, and thereon alleges, that defendants had no reasonable suspicion

26

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1 that a visual body cavity search would result in the discovery of contraband or weapons. On or about

2 January 23, 2003, the charges filed against Mr. ZERN were dismissed.

3

20. Within six months of her arrest, plaintiff MARY BULL filed a group government tort

4 claim for herself and for all persons similarly situated (a copy of said claim is attached hereto as

5 Exhibit A, and incorporated herein to the extent relevant by this reference). Plaintiff BULL’s group

6 claim was denied on or about April 7, 2003, allowing the filing of this Complaint.

7

21. Plaintiffs are informed and believe, and thereon allege, that defendants routinely follow

8 their policy, practice, and custom of subjecting pre-arraignment detainees, including plaintiffs, to strip

9 and visual body cavity searches without having, and recording in writing, a reasonable suspicion that

10 the search will be productive of contraband or weapons.

11

22. Plaintiffs are further informed and believe, and thereon allege, that defendants routinely

12 follow their policy, practice and custom of confining detainees, including plaintiffs, in “cold rooms” in

13 order to compel compliance with illegal orders or as punishment.

14

23. Plaintiffs are informed and believe, and thereon allege, that defendants have the ability

15 to identify all such similarly situated plaintiffs, specifically those who, while in defendants’ custody, at

16 the San Francisco Jail since February 10, 2000, were subjected to strip searches and/or visual body

17 cavity searches prior to arraignment without defendants first having, and recording, a reasonable

18 suspicion that the searches would be productive of contraband or weapons.

19

24. Plaintiffs are further informed and believe, and thereon allege, that defendants have the

20 ability to identify all such similarly situated plaintiffs whom defendants confined in “cold rooms”

21 since February 10, 2000, as means to compel compliance with directives or as a punishment.

22

25. Defendant SHERIFF MICHAEL HENNESSEY is personally responsible for the

23 promulgation and continuation of the strip search policy, practice, and custom pursuant to which some

24 of the plaintiffs herein were subjected to the searches complained of herein.

25 \\\

26 \\\

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1

26. Defendant SHERIFF MICHAEL HENNESSEY is also personally responsible for the

2 promulgation and continuation of the cold room policy, practice, and custom pursuant to which some

3 of the plaintiffs herein were confined in “cold rooms” as complained of herein.

4

27. As a result of being subjected to the searches complained of herein, each of the

5 plaintiffs suffered physical, mental, and emotional distress, invasion of privacy, and violation of due

6 process of law and state and federal statutory and constitutional rights, and is entitled to recover

7 damages according to proof, but, at a minimum, $1,000 as specified in California Penal Code §

8 4030(p) and $4,000 as specified in California Civil Code § 52 and § 52.1(b).

9

28. As a result of being placed in a “cold room” as complained of herein, each of the

10 plaintiffs suffered physical, mental, and emotional distress and violation of due process of law and

11 state and federal statutory and constitutional rights, and is entitled to recover damages according to

12 proof, but, a minimum, $4,000 as specified in California Civil Code § 52 and § 52.1(b).

13

CLASS CLAIMS

14

29. The strip and visual body cavity searches to which plaintiffs were subjected were

15 performed pursuant to policies, practices, and customs of defendants SHERIFF HENNESSEY, CITY

16 AND COUNTY OF SAN FRANCISCO SHERIFF’S DEPARTMENT, CITY AND COUNTY OF

17 SAN FRANCISCO, and the individual deputies sued herein by the fictitious names 1 through 150

18 The searches complained of herein were performed without regard to the nature of the alleged offense

19 for which plaintiffs had been arrested, without regard to whether or not plaintiffs were eligible for cite

20 and release under Penal Code § 853.6, without regard to whether or not plaintiffs were eligible for

21 and/or were released on their own recognizance. Furthermore, the searches complained of herein were

22 performed without defendants having a reasonable belief that the plaintiffs so searched possessed

23 weapons or contraband, or that there existed facts supporting a reasonable belief that the searches

24 would produce contraband, and those facts being articulated and recorded in a supervisor-approved

25 document.

26 \\\

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1

30. Defendants’ use of the “cold room” to compel compliance from, and/or to punish

2 plaintiffs is in violation of Sections 1055 and 1083 of Title 15 of the California Code of Regulations

3 (promulgated under the authority of California Penal Code section 6030) and the State and Federal

4 Constitutions, in that defendants confine people to “cold rooms” to punish them and/or to compel

5 compliance with directives. Furthermore, defendants’ practice of placing people in the cold room

6 naked is a violation of Section 1055, supra, and of plaintiffs’ rights to due process of law.

7

31. Plaintiffs bring this action on their own behalf and on behalf of all persons similarly

8 situated pursuant to Rule 23, Federal Rules of Civil Procedure and California Code of Civil Procedure

9 § 382.

10

32. The class is defined to include all persons who, in the period from and including

11 February 10, 2000, to the present and continuing until this matter is adjudicated and the practices

12 complained of herein cease, were arrested and subjected to a pre-arraignment strip and/or visual body

13 cavity search at the San Francisco Jail without defendants having, and recording, a reasonable

14 suspicion that the search would be productive of contraband or weapons.

15

33. The class also includes all persons during the period from and including February 10,

16 2000, to the present and continuing until this matter is adjudicated and/or the practices complained of

17 herein cease, whom defendants improperly and unjustifiably confined in a cold room at the San

18 Francisco Jail as a punishment and/or to compel compliance with a directive.

19

34. In accordance with Federal Rules of Civil Procedure, Rule 23(a), the members of the

20 class are so numerous that joinder of all members is impractical. Plaintiffs do not know the exact

21 number of class members. Plaintiffs are informed and believe, and thereupon allege, that there are

22 more than 100 persons per day who are arrested by defendants and/or in the custody of defendants and

23 subjected to the searches complained of herein as a result of defendants’ policy, practice, and custom

24 relating to said searches. Plaintiffs are informed and believe, and thereupon allege, that defendants

25 improperly and unjustifiably confine more than 10 persons per day in cold rooms as punishment or to

26

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1 compel compliance with directives. Plaintiffs are informed and believe, and therefore allege, that

2 there are tens of thousands of persons in the proposed class.

3

35. In accordance with Federal Rules of Civil Procedure, Rule 23(a), plaintiffs are

4 informed and believe, and thereupon allege, that there are many questions of fact common to the class

5 including, but not limited to: (1) whether defendants routinely subject all persons arrested to visual

6 body cavity searches prior to arraignment if they intend such persons to be housed in a San Francisco

7 County Jail; (2) whether persons are subjected to visual body cavity searches prior to arraignment

8 without there being any reasonable suspicion, based on specific or articulable facts, to believe any

9 particular arrestee has concealed drugs, weapons, and/or contraband in bodily cavities which could be

10 detected by means of a visual body cavity search; (3) whether the visual body cavity searches are

11 conducted in an area of privacy so that the searches cannot be observed by persons not participating in

12 the searches, or whether the visual body cavity searches are conducted in groups and/or in open areas

13 where they may be observed by persons not participating in the searches; and, (4) whether the visual

14 body cavity searches are reasonably related to defendants’ penological interest to maintain the security

15 of the jail and whether or not there are less intrusive methods for protecting any such interest.

16

36. Plaintiffs are also informed and believe, and thereupon allege, that other common

17 questions of fact concern the design, temperature, upkeep, and use of the “cold rooms,” including, but

18 not limited to: (1) whether the “cold rooms” are used to punish persons in defendants’ custody; (2)

19 whether defendants properly monitor people placed in the “cold rooms”; (3) whether defendants

20 routinely fail to provide people placed in the “cold rooms” with sufficient clothing to protect those

21 persons’ privacy; and, (4) whether defendants routinely fail to provide people confined in the “cold

22 rooms” with bedding.

23

37. In accordance with Federal Rules of Civil Procedure, Rule 23(a), plaintiffs are

24 informed and believe, and thereupon allege, that there are many questions of law common to the class

25 including, but are not limited to: (1) whether defendants may perform visual body cavity searches on

26 persons prior to their arraignment without reasonable suspicion, based on specific or articulable facts,

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1 to believe any particular inmate has concealed drugs, weapons and/or contraband which would likely

2 be discovered by a visual body cavity search; (2) whether defendants may perform visual body cavity

3 searches on persons without first reasonably relating the use of the visual body cavity search to

4 defendants’ penological interest to maintain the security of the jail and determining if there is a less

5 intrusive method to protect that interest; (3) whether visual body cavity searches may be conducted in

6 areas where the search can be observed by people not participating in the search without violating

7 plaintiffs’ State and Federal constitutional rights and the protections afforded to plaintiffs under

8 California Penal Code section 4030; and, (4) whether or not defendants’ strip search policy and

9 procedure is in accordance with the State and/or Federal Constitution.

10

38. Plaintiffs are also informed and believe, and thereupon allege, that other common

11 questions of law concern the nature, conditions, and temperature of the “cold rooms,” including, but

12 not limited to: (1) whether defendants may use the cold rooms in the San Francisco County Jails for

13 any reasons other than those stated in the Section 1055 of Title 15 of the California Code of

14 Regulations without violating plaintiffs’ State and Federal constitutional rights protected by the Fourth

15 and Fourteenth Amendments to the United States Constitution and 42 U.S.C. § 1983; (2) whether or

16 not defendants’ “cold room” policies, practices, and customs are in accordance with the Constitution

17 and laws of the State of California and/or the United States of America; and (3) whether or not

18 defendants have established and implemented written plans as directed by Section 1050 of Title 15 of

19 the California Code of Regulations (promulgated in under the authority of California Penal Code

20 section 6030).

21

39. In accordance with Federal Rules of Civil Procedure, Rule 23(a), the claims of the

22 representative plaintiffs are typical of the class. Plaintiffs were searched, prior to arraignment, without

23 reasonable suspicion that a strip or visual body cavity search would produce drugs, weapons or

24 contraband (and without the facts supporting any such suspicion being articulated in a supervisor-

25 approved writing), and plaintiff BULL was placed in a “cold room,” without sufficient clothing to

26 protect her privacy, as punishment for her refusal to consent to a visual body cavity search.

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1 Representative plaintiffs have the same interests and suffered the same type of injuries as all of the

2 class members. Plaintiffs’ claims arose because of defendants’ policy, practice, and custom of

3 subjecting arrestees to strip and/or visual body cavity searches before arraignment without having, and

4 recording in writing, a reasonable suspicion that the search would be productive of contraband or

5 weapons. Additionally, plaintiff BULL, in accordance with defendants’ policy, practice, and custom

6 was improperly and unjustifiably confined in a “cold room” as punishment after defendants used the

7 threat of such confinement unsuccessfully to coerce plaintiff to comply with their directives.

8 Plaintiffs’ claims are based upon the same legal theories as the claims of the class members. Each

9 class member suffered actual damages either as a result of being subjected to a visual body cavity

10 search and/or as a result of being improperly and unjustifiably placed and confined in a “cold room.”

11 The actual damages suffered by representative plaintiffs are similar in type and amount to the actual

12 damages suffered by each class member.

13

40. In accordance with Federal Rules of Civil Procedure, Rule 23(a), the representative

14 plaintiffs will fairly and adequately protect the class interests. Plaintiffs’ interests are consistent with

15 and not antagonistic to the interests of the class.

16

41. In accordance with Federal Rules of Civil Procedure, Rule 23(b)(1)(A), prosecutions of

17 separate actions by individual members of the class would create a risk that inconsistent or varying

18 adjudications with respect to individual members of the class would establish incompatible standards

19 of conduct for the parties opposing the class.

20

42. In accordance with Federal Rules of Civil Procedure, Rule 23(b)(1)(B), prosecutions of

21 separate actions by individual members of the class would create a risk of inconsistent adjudications

22 with respect to individual members of the class which would, as a practical matter, substantially

23 impair or impede the interests of the other members of the class to protect their interests.

24

43. In accordance with Federal Rules of Civil Procedure, Rule 23(b)(2), plaintiffs are

25 informed and believe, and thereupon allege, that defendants have acted on grounds generally

26

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1 applicable to the class, thereby making appropriate the final injunctive or declaratory relief with

2 respect to the class as a whole.

3

44. In accordance with Federal Rules of Civil Procedure, Rule 23(b)(3), this class action is

4 superior to other available methods for the fair and equitable adjudication of the controversy between

5 the parties. Plaintiffs are informed and believe, and thereupon allege, that the interests of members of

6 the class in individually controlling the prosecution of a separate action is low, in that most class

7 members would be unable individually to prosecute any action at all. Plaintiffs are informed and

8 believe, and thereupon allege, that the amounts at stake for individuals are so small that separate suits

9 would be impracticable. Plaintiffs are informed and believe, and thereupon allege, that most members

10 of the class will not be able to find counsel to represent them. Plaintiffs are informed and believe, and

11 thereupon allege, that it is desirable to concentrate all litigation in one forum because all of the claims

12 arise in the same location; i.e., the CITY AND COUNTY OF SAN FRANCISCO. It will promote

13 judicial efficiency to resolve the common questions of law and fact in one forum, rather than in

14 multiple courts.

15

45. Plaintiffs do not know the identities of all of the class members. Plaintiffs are informed

16 and believe, and thereupon allege, that the identities of the class members may be ascertained from

17 records maintained by the CITY AND COUNTY OF SAN FRANCISCO and defendant SHERIFF

18 MICHAEL HENNESSEY and defendant CITY AND COUNTY OF SAN FRANCISCO SHERIFF’S

19 DEPARTMENT. Plaintiffs are informed and believe, and thereupon allege, that defendants’ records

20 reflect the identities, including addresses and telephone numbers, of the persons who have been held in

21 custody in the San Francisco Jails. Plaintiffs are informed and believe, and thereupon allege, that

22 records of, and maintained by defendants reflect who was subject to a strip and/or visual body cavity

23 search, when the search occurred, where the search occurred, whether any reasonable suspicion for the

24 search existed and was recorded in a supervisor-approved writing, when persons searched were

25 arraigned, the charges on which such persons were arrested, whether persons were confined in a “cold

26 room,” the justification recorded for placing individuals in a “cold room,” what articles of clothing

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1 and/or bedding, if any, were provided to people placed in “cold rooms,” how long individuals

2 remained in a “cold room,” and what treatment they received while so confined. Plaintiffs are

3 informed and believe, and thereupon allege, that all of the foregoing information is contained in

4 defendants’ computer system and that the information necessary to identify the class members, by last

5 known addresses, and the dates and reasons for their arrests and/or release from custody, is readily

6 available from said computer system.

7

46. In accordance with Federal Rules of Civil Procedure, Rule 23(b)(3), class members

8 must be furnished with the best notice practicable under the circumstances, including individual notice

9 to all members who can be identified through reasonable effort. Plaintiffs are informed and believe,

10 and thereupon allege, that defendants’ computer records contain a last known address for class

11 members. Plaintiffs contemplate that individual notice will be given to class members at such last

12 known address by first class mail. Plaintiffs contemplate that the notice will inform class members of

13 the following:

14

i. The pendency of the class action and the issues common to the class;

15

ii. The nature of the action;

16

iii. Their right to “opt out” of the action within a given time, in which event they

17

will not be bound by a decision rendered in the class action;

18

iv. Their right, if they do not “opt out,” to be represented by their own counsel and

19

to enter an appearance in the case; otherwise they will be represented by the

20

named class plaintiffs and their counsel; and

21

v. Their right, if they do not “opt out,” to share in any recovery in favor of the

22

class, and conversely to be bound by any judgment on the common issues

23

adverse to the class.

24 \\\

25 \\\

26 \\\

MARY BULL, et al. v. CITY AND COUNTY OF SAN FRANCISCO, et al.

Page 14 of 17 COMPLAINT

USDC, Northern District, Case No. ________________

Case 3:03-cv-01840-CRB Document 1 Filed 04/23/2003 Page 15 of 17

1

COUNT ONE

(Violation of Fourth and Fourteenth Amendments to the U.S. Constitution

2

on behalf of Plaintiffs and all persons similarly situated)

3

47. Defendants’ policies, practices, and customs regarding the strip and visual body cavity

4 searches complained of herein violated plaintiffs’ rights under the Fourth Amendment to be free from

5 unreasonable searches and seizures, violated said plaintiffs’ rights to due process and privacy under

6 the Fourteenth Amendment, and directly and proximately damaged plaintiffs as herein alleged,

7 entitling plaintiffs to recover damages for said constitutional violations pursuant to 42 U.S.C. § 1983.

8

WHEREFORE, plaintiffs pray for relief as hereunder appears.

9

COUNT TWO

(Violation of the Fourth and Fourteenth Amendments to U.S. Constitution, 42 U.S.C. § 1983,

10

on behalf of Plaintiffs and all persons similarly situated)

11

48. Defendants’ policies, practices, and customs regarding their use of “cold rooms” as

12 complained of herein violated plaintiffs’ Fourth Amendment right to be free from unreasonable

13 searches and seizures and plaintiffs’ rights to due process under the Fourteenth Amendment, and

14 directly and proximately damaged plaintiffs as herein alleged, entitling plaintiffs to recover damages

15 for said constitutional violations pursuant to 42 U.S.C. § 1983, in addition to other damages.

16

WHEREFORE, plaintiffs pray for relief as hereunder appears.

17

COUNT THREE

(California State Unruh Civil Rights Act, Civil Code §§ 52 and 52.1,

18

on behalf of Plaintiffs and all persons similarly situated)

19

49. Defendants’ policies, practices, and customs regarding the strip and visual body cavity

20 searches complained of herein violated plaintiffs’ rights to privacy as secured by Article I, Section 1 of

21 the California Constitution and directly and proximately damaged plaintiffs as herein alleged, entitling

22 said plaintiffs to recover a minimum of $4,000 each pursuant to California Civil Code § 52.1 and § 52,

23 in addition to other damages.

24

WHEREFORE, plaintiffs pray for relief as hereunder appears.

25 \\\

26 \\\

MARY BULL, et al. v. CITY AND COUNTY OF SAN FRANCISCO, et al.

Page 15 of 17 COMPLAINT

USDC, Northern District, Case No. ________________

Case 3:03-cv-01840-CRB Document 1 Filed 04/23/2003 Page 16 of 17

1

COUNT FOUR

(Violation of California Penal Code § 4030,

2

California State Unruh Civil Rights Act, Civil Code §§ 52 and 52.1,

on behalf of Plaintiffs and all persons similarly situated)

3

4

50. Defendants’ policies, practices, and customs regarding the strip and visual body cavity

5 searches complained of herein violated rights secured to plaintiffs under California Penal Code § 4030

6 and directly and proximately damaged plaintiffs as herein alleged, entitling said plaintiffs to recover a

7 minimum of $1,000 each pursuant to California Penal Code § 4030(p), and to further minimum

8 damages of $4,000 each pursuant to California Civil Code § 52.1 and § 52, in addition to other

9 damages.

10

WHEREFORE, plaintiffs pray for relief as hereunder appears.

11

COUNT FIVE

(California State Unruh Civil Rights Act, Civil Code §§ 52 and 52.1,

12

on behalf of all plaintiffs similarly situated)

13

51. Defendants’ policies, practices, and customs regarding their use of “cold rooms” as

14 complained of herein has violated plaintiffs’ rights to due process of law and freedom from

15 unreasonable searches and seizures as secured by the California Sate Constitution, Article I, Section

16 24, and directly and proximately damaged plaintiffs as herein alleged, entitling each said plaintiff to

17 recover a minimum of $4,000 each pursuant to California Civil Code § 52.1 and § 52, in addition to

18 other damages.

19

WHEREFORE, plaintiffs pray relief as hereunder appears.

20

PRAYER FOR RELIEF

21

WHEREFORE, plaintiffs seek judgment as follows:

22

1. For declaratory and injunctive relief declaring illegal and enjoining, preliminarily and

23 permanently, defendants’ policies, practices, and customs of subjecting pre-arraignment detainees to

24 strip and visual body cavity searches without having a reasonable suspicion that such searches would

25 be productive of contraband or weapons and of using the “cold rooms” to compel compliance or to

26 punish detainees.

MARY BULL, et al. v. CITY AND COUNTY OF SAN FRANCISCO, et al.

Page 16 of 17 COMPLAINT

USDC, Northern District, Case No. ________________

Case 3:03-cv-01840-CRB Document 1 Filed 04/23/2003 Page 17 of 17

1

2. Certification of the action as a class action;

2

3. For compensatory, general, and special damages for each representative and for each

3 member of the class of plaintiffs, as against all defendants;

4

4. Exemplary damages as against each of the individual defendants in an amount

5 sufficient to deter and to make an example of those defendants;

6

5. In addition to compensatory and statutory damages as allowed by law, at least $4,000

7 for each plaintiff pursuant to California Civil Code § 52.1 and § 52;

8

6. Attorneys’ fees and costs under 42 U.S.C. § 1988, California Civil Code § 52(b)(3),

9 California Civil Code § 52.1(h), and California Code of Civil Procedure § 1021.5; and

10

7. The cost of this suit and such other relief as the court finds just and proper.

11 A JURY TRIAL IS HEREBY DEMANDED.

12 DATED: June 5, 2003

Respectfully submitted,

13

LAW OFFICE OF MARK E. MERIN

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BY: Mark E. Merin Attorney for Plaintiffs

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MARY BULL, et al. v. CITY AND COUNTY OF SAN FRANCISCO, et al. F:\WPWORK\MCNULTY\PLEADING\COMPLAIN.DOC

Page 17 of 17 COMPLAINT

USDC, Northern District, Case No. ________________

 
 Case 3:03-cv-01840-CRB Document 60-1 Filed 01/21/2004 Page 1 of 26

1

To: Defendant City and County of San Francisco et al. and their attorneys:

2 PLEASE TAKE NOTICE that on February 27, 2004 at 10:00 a.m., Plaintiffs will move

3 this Court, located at 450 Golden Gate Avenue, San Francisco, California, Courtroom 8,

4 the Hon. Charles R. Breyer presiding, for a Preliminary Injunction which:

5

1) Enjoins pre-arraignment strip searches at any of the San Francisco County Jails

6

of arrestees charged with crimes not involving drugs, violence or weapons unless a)

7

there is particularized reasonable suspicion that a search will be productive of

8

contraband or a weapon, b) the basis for that reasonable suspicion is recorded in

9

writing and c) the search is approved by a supervisor prior to the search being

10

conducted;

11

2) Enjoins pre-arraignment placement into safety cells of arrestees unless there has

12

been a prior determination by a licensed professional that the arrestee has

13

demonstrated behavior which reveals an intent to cause physical harm to

14

himself/herself or others;

15

3) Enjoins strip searches of persons placed in safety cells;

16

4) Enjoins removal of the clothing of persons placed in safety cells unless a

17

licensed professional has determined that the arrestee is likely to use the clothing to

18

harm himself.

19

Plaintiffs’ motion will be based on the grounds that injunctive relief is necessary to

20 prevent irreparable harm to plaintiffs pending trial and is supported by this Memorandum,

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CASPER, MEADOWS & SCHWARTZ
2121 N. California Blvd., Suite 1020
Walnut Creek, CA 94596 TEL: (925) 947-1147 FAX (925) 947-1131

the First Amended Complaint, and the declarations and exhibits filed herewith. --------------------------------------------------------------------------“You don’t get safer jails without lawsuits.” San Francisco Sheriff Michael Hennessey New York Times, 1/5/2004
OVERVIEW OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
Plaintiffs seek a preliminary injunction against two unconstitutional policies and
practices of the San Francisco County jail system: Plaintiffs seek to enjoin strip searches and
body cavity searches of arrestees held prior to arraignment conducted by jail personnel absent

MARY BULL, et al., v. CITY AND COUNTY OF SAN FRANCISCO, et al USDC Case No. C03-1840 CRB
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Page 1

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1 reasonable suspicion that the individual possesses contraband or presents a security threat. For

2 at least 15 years the Ninth Circuit has consistently held that strip search of pre-arraignment

3 detainees violates the Fourth Amendment absent particularized reasonable suspicion that the

4 search will produce a weapon or contraband. See, e.g., Act Up!/Portland v. Bagley, 988 F.2d

5 868, 871-872 (9th Cir. 1992); Kennedy v. Los Angeles Police Dept., 901 F.2d 702, 711 (9th Cir.

6 1989), Giles v. Ackerman, 746 F.2d 714, 617 (9th Cir. 1984). Such strip searches also violate

7 California Penal Code § 4030 which only permits strip searches of those arrested for minor

8 offenses supported by particularized reasonable suspicion that the search will disclose a weapon

9 or contraband. Indeed violation of § 4030 is a misdemeanor. This Court may enjoin violations

10 of § 4030 under its supplemental jurisdiction. Little doubt exists that the County employs an

11 illegitimate blanket strip search policy violating the Fourth Amendment and § 4030.

12

Plaintiffs also seek to enjoin the County from continuing to implement its policy of

13 placing pretrial detainees in “safety cells” as punishment in violation of the Due Process Clause

14 of the Fourteenth Amendment. Bell v. Wolfish 441 U.S. 520 (1979); Henry v. County of Shasta,

15 132 F.3d 512 (9th Cir. 1997), Anderson v. County of Kern, 45 F.3d 1310 (9th Cir. 1995). The

16 County places naked pretrial detainees in safety cells for, among other things, refusal to submit

17 to a strip search or for a perceived lack of cooperation with the strip search. Arrestees placed in

18 safety cells often are denied food and water, are observed by deputies of the opposite sex, and

19 go for hours without interviews by mental health professionals.

20

STATEMENT OF FACTS

21 The Narratives Of Plaintiffs And Other Former Pre-Arraignment Detainees

22

Describe The County’s Blanket Strip Search Policy And The County’s Use Of Safety Cells As Punishment.

23

Mary Bull: On November 18, 2002, Bull was arrested at a political demonstration and

24 taken to the Bryant Street jail (County Jail 9). Declaration of Mary Bull, ¶¶ 2-3. At 6:00 p.m.,

25 deputies took her to be strip searched. Id., ¶ 4. (A strip search is part of the “dressing in”

26 process.) Bull refused to sign a form consenting to the search and was returned to a holding

27 cell. Id., ¶ 5. Three hours later, at 9:00 p.m., deputies advised her that if she refused to consent

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CASPER, MEADOWS & SCHWARTZ
2121 N. California Blvd., Suite 1020
Walnut Creek, CA 94596 TEL: (925) 947-1147 FAX (925) 947-1131

to the search, officers would forcibly strip search her and place her naked in a cold room for 24

MARY BULL, et al., v. CITY AND COUNTY OF SAN FRANCISCO, et al USDC Case No. C03-1840 CRB
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1 hours. Id., ¶¶ 6, 8. After Bull politely refused to submit, deputies forcibly stripped her; placed

2 her naked in a squatting position, in view of male deputies; inspected her genital and anal areas

3 and left her naked in the room. Id., ¶¶ 9-11. While Bull was in the room, a sheriff’s deputy

4 smashed a baton against the door on a regular basis, “creating an unbearably loud nerve-

5 shattering noise,” disrupting Bull’s sleep and causing her extreme distress. Id., ¶ 12. The

6 following morning Bull was given clothes and taken upstairs (to County Jail 1) where deputies

7 informed her she was required to undergo another strip search. Id., ¶ 13. After Bull politely

8 refused, she was taken to another cold room and forcibly strip searched. Id., ¶¶ 14-15. She was

9 released that night on her own recognizance and never charged with a crime. Id., ¶ 18.

10

Deborah Flick: Ms. Flick is plaintiff in a related case Flick v. City and County of San

11 Francisco, No. C 03 04022 CRB. On March 28, 2003 Deborah Flick was arrested for public

12 intoxication. Declaration of Deborah Flick., at ¶ 1-2. She was taken to County Jail 9 where she

13 was held down by two deputies who forcibly removed her clothing and then placed her naked in

14 a safety cell. Id., ¶ 6-7. While in the safety cell she began cramping and bleeding profusely and

15 spent the night bleeding and in pain while Sheriff’s Deputies verbally abused her. Id., ¶ 8-9. She

16 was never cited and no criminal charges were ever filed. Id., ¶ 4.

17

Miki Mangosing: On December 12, 2002 Miki Mangosing was arrested and taken to

18 County Jail 9 without ever being advised of the charges against her. Declaration of Miki S.

19 Mangosing, at ¶ 1-2. When she attempted to call to a friend in the neighboring cell, a female

20 deputy told her to “Shut Up,” and several deputies removed her from the holding cell and took

21 her to a safety cell. Id., ¶ 4. Once in the safety cell, a deputy said, “Let’s teach this bitch a

22 lesson;” deputies then strip searched and beat her. Id., ¶ 5. She was left naked in the cell

23 without food or water for twelve hours and was only given a safety cell garment after eight

24 hours. Id., ¶ 7-8. While in the cell, she was woken regularly by deputies smashing their batons

25 against the cell door and hurling verbal abuse. Id., ¶ 9. She was never booked and was released

26 the next day with no charges ever filed against her. Id., ¶ 10.

27

Steve Noh: Steve Noh was arrested for battery on June 28, 2003. Declaration of Steve

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CASPER, MEADOWS & SCHWARTZ
2121 N. California Blvd., Suite 1020
Walnut Creek, CA 94596 TEL: (925) 947-1147 FAX (925) 947-1131

Noh, at ¶ 1. He was strip searched within 15 minutes of his arrival at County Jail 9 and then put

MARY BULL, et al., v. CITY AND COUNTY OF SAN FRANCISCO, et al USDC Case No. C03-1840 CRB
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1 in a safety cell for 15-18 hours after asking about his rights. Id., ¶¶ 2-3. He was kept in several

2 holding cells over the next 17 hours and finally released. All charges were dropped. Id., ¶¶ 5-7.

3

Michael Marron: In June 2003, Michael Marron was arrested for alleged credit card

4 fraud at the Hotel Nikka in San Francisco and taken to County Jail 9. Declaration of Michael

5 Marron, at ¶ 1-2. He was booked, classified, and strip searched. Id., ¶ 3. When deputies

6 noticed that Marron had removed a jail-assigned wrist band, they removed him from a holding

7 cell, beat him, stripped him and placed him naked and handcuffed in a safety cell. Id., ¶¶ 5-6.

8 He was in the safety cell for over ten hours. Id., ¶ 7. He was neither visited by medical or

9 psychiatric staff while he was in the safety cell, nor was he given any food or water. Id., ¶¶ 8-9.

10

Michele De Ranleau: is not a plaintiff. She should be treated as a percipient witness to

11 County policies and practices and will be added to this action. She formerly was homeless on

12 the streets of San Francisco from late 2000 to January 2003. Declaration of Michele De

13 Ranleau, at ¶ 1. In that time, she was arrested approximately fifteen times for misdemeanor

14 infractions such as loitering and sleeping on a sidewalk. Each time, all charges were dropped.

15 Id., ¶ 2. Each time, she was taken to County Jail 9 where she was booked and strip searched

16 and then taken upstairs to County Jail 1 where she was strip searched again. Id., ¶¶ 4-5. She

17 was never told about the possibility of making bail. Id., ¶ 7. In December 2002, she was

18 arrested for blocking a sidewalk, taken to County Jail 9, booked, strip searched, and then taken

19 upstairs and strip searched again; when she demanded a phone book in order to find an attorney,

20 she was stripped, searched and placed in a safety cell where she remained for almost 12 hours.

21 Id., ¶¶ 8-14. All charges were dismissed. Id., ¶ 17.

22

Lisa Giampaoli: Lisa Giampaoli was arrested on July 19, 2002 because her dog

23 allegedly bit a man. She was taken to County Jail 9 where she was booked and instructed to

24 disrobe in the presence of a male officer. When she refused, male and female deputies dragged

25 her into a safety cell, forcibly removed her clothing and left her naked in the cell for

26 approximately 12 hours. First Amended Class Action Complaint, at ¶ 20. She was awakened

27 every 20 minutes by pounding on the door by a male officer who observed her naked. Id., ¶ 21

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CASPER, MEADOWS & SCHWARTZ
2121 N. California Blvd., Suite 1020
Walnut Creek, CA 94596 TEL: (925) 947-1147 FAX (925) 947-1131

Alexis Bronson: On August 5, 2002 Alexis Bronson was arrested in San Francisco for

MARY BULL, et al., v. CITY AND COUNTY OF SAN FRANCISCO, et al USDC Case No. C03-1840 CRB
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1 allegedly being drunk in public and taken to San Francisco County Jail where he complied with

2 an order to strip and submit to a cavity search. He was told that he was not coughing loudly

3 enough and was dragged to a safety cell by five deputies where he was kept naked for 12 hours

4 without food or water. Declaration of Alexis Bronson, at ¶¶ 6-8. While naked, he was

5 repeatedly observed by a female deputy, who refused Bronson’s requests for clothes and water.

6 Id., ¶ 9. No charges were ever filed. Id., ¶ 14.

7

Charli Johnson: On August 30, 2001, Charli Johnson was arrested for alleged public

8 intoxication and taken to San Francisco County Jail where she was strip searched by two male

9 deputies who removed her tampon. First Amended Class Action Complaint, at ¶ 27.She was

10 then placed in a safety cell naked for approximately 12 hours and regularly observed by male

11 deputies. She was released the next day and no charges were ever filed against her.

12

Leigh Fleming: On April 11, 2003 Leigh Fleming was arrested in San Francisco for

13 allegedly disturbing the peace. She was taken to San Francisco County Jail where she was

14 subjected to a visual body cavity search and then confined in a safety cell for more than five

15 hours during which time she was constantly harassed by loud banging on the door every twenty

16 minutes. No charges were ever filed. Id., ¶ 28.

17

Laura Timbrook: On January 6, 2003 Laura Timbrook was arrested in San Francisco

18 on an old warrant for writing bad checks and taken to San Francisco County Jail where she was

19 strip searched twice. Id., ¶ 29

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CASPER, MEADOWS & SCHWARTZ
2121 N. California Blvd., Suite 1020
Walnut Creek, CA 94596 TEL: (925) 947-1147 FAX (925) 947-1131

Deposition Testimony Of Sheriff’s Department Personnel Confirmed That The County Has Long Implemented A Blanket Strip Search Policy.
San Francisco County enforces a blanket strip search policy by which deputies strip search virtually everyone arrested and brought to County Jail prior to arraignment, even absent evidence of the commission of a crime involving drugs, weapons or violence; a criminal history of convictions for such crimes, or reasonable suspicion that the arrestee may carry contraband. Thus jail personnel strip search (1) all arrestees detained on the basis of an outstanding warrant, regardless of the charge; (2) all arrestees who are to be housed at a jail facility prior to their arraignment, i.e., arrestees who are to be introduced into the general jail population; (3) all

MARY BULL, et al., v. CITY AND COUNTY OF SAN FRANCISCO, et al USDC Case No. C03-1840 CRB
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1 arrestees who signed a form consenting to be strip-searched; (4) all arrestees who are processed

2 through the own recognizance program; and (5) arrestees who do not post bail with sufficient

3 promptness – although no defined period exists after sheriff’s deputies are allowed to strip

4 search an individual who is permitted to post bail but has failed to do so.

5

Booking Searches

6

Two categories of strip searches exist, “booking searches” and “custody searches.”

7 “Booking searches” include strip searches which deputies “automatically” perform on a “person

8 [who] comes in with current charges of drugs, violence or weapons, or if they are on some type

9 of probation or parole.” Deposition of Kevin McConnell, Ex. 1 to Seaton Decl., at 29:14-24,

10 30:17-22.1 See also Deposition of Suzette Humphrey, Ex. 6 to Seaton Declaration, at 48:18-

11

12 1 Kevin McConnell is a senior deputy, and serves as acting watch commander in the watch commander’s absence.
McConnell, 7:14-21. McConnell was assigned to the 3:00 p.m. to 11:00 p.m. shift at County Jail 9 from June or
13 July 2002 to August 2003, when he was assigned to the midnight watch. Id., 9:3-20. He was on duty when Mary
Bull was brought to County Jail 9. Field Arrest Card of Mary Bull, Bates No. Bull CCSF MB 00014, Ex. 2 to
14 Seaton Decl., McConnell, 34:13-35:1.

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CASPER, MEADOWS & SCHWARTZ
2121 N. California Blvd., Suite 1020
Walnut Creek, CA 94596 TEL: (925) 947-1147 FAX (925) 947-1131

Booking searches are set forth in Department Procedure E-03. Bates No. Bull CCSF 00022-00027, Ex. 3 to the Seaton Decl. Sheriff Hennessey personally approved the Procedure. Id., at 00022. On February 23, 2000, Captain Thomas Arata drafted a clarification of strip search policies for inclusion in the County Jail 9 Manual. Bates No. Bull CCSF 00003-00004, Ex. 4 to the Seaton Decl. These were the written procedures in effect when Mary Bull, other plaintiffs and the class members were detained. On February 10, 2003, Captain Dyer amended Arata’s clarification to state that the policy referred to both “Felony and misdemeanor charges.” Bates No. Bull CCSF 00143-00144, Ex. 5 to the Seaton Decl. As clarified by Arata’s amendments and the Dyer Insert (both set off with italics below), the key elements of Procedure E-03 are:
To clarify an issue pertaining to CJ#9 strip searches and the departmental policy (E-03 entitled Booking Searches) the following procedure should be followed pertaining to the strip search of CJ#9 prisoners.

Felony and misdemeanor charges [Captain R. Dyer 2/10/03]

POLICY: All arrestees entering the San Francisco County Jail System shall be processed through a booking search. The search shall either be a “pat search” performed in conjunction with a hand held metal detector, and/or a strip search. The type of search will be based on the elements of the current criminal charges, prior criminal history or on reasonable suspicion that the prisoner is in possession of contraband.

PURPOSE: To protect inmates, staff and visitors by establishing policy and procedure for searching inmates to detect and recover weapons, drugs, and other contraband concealed upon their person.

DEFNITIONS: Visual Body Cavity Search - means visual inspection of a body cavity

Strip Search (same as Custodial Search) - means a search which requires a person to remove or arrange

MARY BULL, et al., v. CITY AND COUNTY OF SAN FRANCISCO, et al

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1 51:20.

2

For some years, deputies also based searches on arrestees’ signatures on “consent”

3 forms which deputes had prepared.2 Deputies also strip search any arrestee whose conduct

4 creates a reasonable suspicion that the arrestee may possess contraband. Id., 40:3-7, 19-22;

5 Strip Search Authorization Forms, Bates Nos. Bull CCSF 00008, Bull CCSF 00027, Exs. 10

6 and 11 to Seaton Decl. Deputies also strip search all individuals detained on the basis of San

7 Francisco warrants, regardless of the crime underlying the warrant. Dyer, 50:1-9.

8

9

some or all of his or her clothing so as to permit a visual inspection of the underclothing, breasts, buttocks or

genitalia of such person. Includes a visual inspection of the mouth, ears, hair, hands, skin folds, armpits as

10

well as a thorough search of all clothing items.

11

PROCEDURE: II Strip Search Criteria

-

12

A. A strip search shall be conducted by an officer of the same sex, and may be conducted on a person received at the Intake and Release facility, without written authorization, when any of the following

13

conditions apply:

14

1. An arrestee charged with a crime involving drugs, weapons or violence.

2. An arrestee with a criminal history involving drugs, weapons or violence.

15

10. A person assigned a custody level by Classification arid scheduled for custodial housing.

16

Prisoners should be strip searched before the conclusion of the watch. . . .

17

B. Authorization to Perform a Strip Search of Arrestees Who Do Not Fall Within Criteria Listed

In IIA

18

If any arrestee or person accepted at intake does not fall within Section II above, permission to conduct

a strip search may be requested by the arresting, transporting or booking officer when he/she has a

19

reasonable suspicion based on articulable facts that the arrestee or person may possess contraband.

Permission to conduct a strip search. may be requested by completing Part A, Request for Strip Search, of

20

the San Francisco Sheriff’s Department STRIP SEARCH AUTHORIZATION form.

21 Part III of Procedure E-O3 also details the manner in which deputies must conduct the search.

22

Booking Search, Procedure E-03, As Revised, August 20, 1999, at Bates No. BULL CCSF 00022-00025, and as supplemented by the Arata Clarification and Dyer Insert To The County Jail 9 Manual, at Bates No. BULL

23 CCSF 00143-00144.

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2121 N. California Blvd., Suite 1020
Walnut Creek, CA 94596 TEL: (925) 947-1147 FAX (925) 947-1131

2 For some years prior to February 2003, deputies altered the E-03 Procedure “Strip Search Authorization” form to add an improvised “consent to search” line for searches of arrestees whose charges did not involve weapons, violence or drugs. McConnell, 36:16-37:14, 38:1-16, 39:7-8; Deposition of Julio Palencia, Ex. 7 to Seaton Decl., at 41:10-11. These altered forms were “in common use.” McConnell, 39:3-4; Dyer Memo, 2/11/203, Bates No. Bull CCSF 00145, Ex. 8 to Seaton Declaration; Deposition of Richard Dyer, Ex. 9 to Seaton Decl., at 54:9-12, 56:10-18, 62:24-63:1. Those arrestees who refused to sign the consent form were classified and then strip searched anyway! McConnell, 39:9-12. Palencia, 42:6-16. Captain Dyer confiscated the forms and prepared a memorandum chastising use of the form. Dyer Memo, supra, Dyer, 63:22-64:1.

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1

Custody Searches

2

“Custody searches” are strip searches which deputies perform on all arrestees who have

3 been given a classification designating the particular jail facility where the Department will

4 house them. McConnell, 29:3-13, 30:23-31:1. All arrestees who have been assigned to housing

5 in a San Francisco County jail are strip searched, regardless of the charges against them and

6 even if they have not met the criteria for a booking search. Id., 29:9-13, 30:23-25; Dyer, 51:12-

7 17. This policy was in effect in November 2002, when Bull was brought to County Jail 9.

8 Deposition of Jan Dempsey, Ex. 12 to Seaton Decl., at 23:3-8.

9

Deputies Suzette Humphrey and Julio Palencia highlight the breadth of San Francisco’s

10 strip search policy. They testified that deputies strip search all arrestees except those who post

11 bail or who are cited and released. Humphrey, 66:22-25, 67:1-11; Palencia, 32:9-12, 38:21-22,

12 38:24-39:1. Arrestees who qualify for own recognizance release are strip-searched prior to the

13 determination of whether they qualify for inclusion in the “OR” program. Humphrey, 66:9-21.

14 Strip Searches Of All Arrestees On Their Arrival At New Facility From Jail 9

15

The Sheriff’s Department’s Procedure E-07, “Contraband Control, as revised in

16 September, 1997, states, in part, that “When a prisoner enters the facility upon initial

17 assignment . . . the appropriate search of their person or property will be conducted.” Procedure

18 E-07, “Contraband Control,” Ex. 13 to Seaton Decl., Bates No. Bull CCSF 00030-00036, at

19 00032. That Procedure further states that a “Strip Search [2.] will be conducted on every

20 prisoner processed into any facility. Does not include searches performed as part of the

21 booking process.” “Contraband Control,” supra, at 00034.

22

Captain Butler, who ran County Jail 1 at the time of Bull’s arrest, testified that deputies

23 strip searched all arrestees processed into County Jail 1. Captain Butler understood the term

24 “appropriate search” to mean a “strip search.” Deposition of Sabrina Butler, Ex. 14 to Seaton

25 Decl., at 24:10-15. Procedure E-07 is a blanket strip search policy; it does not differentiate

26 among inmates based on the nature of their alleged crimes. Id., 24:16-20, 26:23-25, 27:1-3.

27 Deputies strip search each arrestee newly admitted to County Jail 1, regardless of whether that

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individual has been strip searched at County Jail 9. Id., 43:24-44:7. On June 10, 2003 Captain

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1 Butler sent a memorandum to her subordinates in County Jail 1 stating that that: “ALL NEWLY

2 ASSIGNED INMATES shall be strip-searched upon arrival at CJ #1.” Butler June 10, 2003

3 Memorandum, Ex. 15 to Seaton Decl., Bates No. Bull CCSF 00038. Butler reprimanded 4 deputies who failed to follow the policy. Id., 19:12-15, 28:11-16, 27:21-13.3

5 Sheriff’s Department Personnel Routinely Ignore Written Safety Cell Policy And

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Procedures In Effect Since 1994 Which Prohibit Placement Of Arrestees In A Safety Cell As Punishment For Uncooperative Behavior.

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County Safety Cell Policies Are Tied To State Regulations Which Prohibit

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Use Of Safety Cells For Punishment And Set Forth Minimum Standards.

As revised in 1994, the Sheriff’s Department’s Safety Cell Policy is set forth in 9
Procedure E-05. Bates No. Bull CCSF 00009-00017, Ex. 18 to Seaton Decl.4 That Procedure 10

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3 At the Facility Commanders’ meeting of October 6, 2003, “Chief Dempsey reminded staff that prisoners arriving at housing jails directly from CJ#9 will no longer be strip searched upon arrival. All initial searches will be done at CJ#9” Minutes, Ex. 16 to Seaton Decl., Bates No. Bull CCSF 00286-287. The Department, however, has not changed its written policies requiring that deputies must strip search everyone newly admitted to a facility from County Jail 9. Captain Dyer testified that arrestees are strip searched upon their arrival at new facilities from County Jail 9. Dyer, 65:3-7. Deputy Valerie Carson testified on December 2, 2003, that “anyone entering County Jail 1 is to be strip searched.” Deposition of Valerie Carson, Ex. 17 to Seaton Decl., at 24:18-19.

4 POLICY: The San Francisco Sheriff’s Department permits the use of a safety cell to house a prisoner in conformity with California Code of Regulations, Title 15, Sections 1052, 1055 and 1083. Confinement to a safety cell is only justified for a minimum period of time necessary, until the prisoner can be removed for medical or psychiatric attention. A safety cell shall not be used as disciplinary housing.

A. A prisoner may be placed in a safety cell when: 1. She/he displays bizarre behavior which results in the destruction of property. 2. She/he displays bizarre behavior which reveals an intent to cause self-inflicted harm. 3. She/he appears gravely disabled and less restrictive housing is unavailable. 4. She/he appears to be a danger to self or others. 5. She/he requests to use the safety cell.. 6. For OBSERVATION ONLY, if it is determined by direct observation that the prisoner has ingested items that may cause injury.

B. A safety cell SHALL NOT be used under any circumstances for disciplinary or punitive purposes. A prisoner SHALL NOT be placed in a safety cell for merely being uncooperative with. staff or being verbally abusive to staff

II. Procedure for Use of the Safety Cell

C. 1. When a prisoner is placed in a safety cell for any reason, that prisoner shall be strip searched prior to

placement.

a. In the event the prisoner is not cooperative during a strip search, she/he will remain in restraints while

her/his clothing is cut off in a manner that prevents injury to the prisoner.

b. Unless placement is made because the prisoner has been determined to be suicidal, substitute clothing

will be immediately provided.

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1 was in effect when plaintiffs were placed in safety cells. The Procedure states, in part, “The

2 San Francisco Sheriff’s Department permits the use of a safety cell to house a prisoner in

3 conformity with California Code of Regulations, Title 15, Sections 1052, 1055 and 1083.” Id.,

4 at 00009. Safety cells are padded cells housing a single individual. The dimensions are

5 dictated by Cal. Code of Regs. Title 24, § 2-470A.2.5. See, Excerpt from Title 24, Ex. 19 to

6 Seaton Decl.

7

California Code of Regulations, Title 15, §§ 1055 and 1083 limit the permissible uses

8 of a safety cell. They describe who may be placed in a safety cell and reiterate that placement

9 in the safety cells may not be for disciplinary reasons, but only to protect the arrestee from

10 harming himself or others. Title 15, § 1055, in effect as of February 10, 2001, states, in part:

11 The safety cell described in Title 24, Section 2-470A.2.5, shall be used to hold

12

only those inmates who display behavior which results in the destruction of

property or reveals an intent to cause physical harm to self or others. . . .

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In no case shall the safety cell be used for punishment or as a substitute for

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treatment.

An inmate shall be placed in a safety cell only with the approval of the facility

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manager, the facility watch commander, or the designated physician. Continued

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retention in a safety cell shall be reviewed a minimum of every eight hours. A

medical assessment shall be completed within a maximum of 12 hours of placement

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in the safety cell or at the next daily sick call, whichever is earliest. The inmate

shall be medically cleared for continued retention every 24 hours thereafter. A 18

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2. When a prisoner is placed in a safety cell because of bizarre behavior resulting in destruction of property or revealing an intent to cause self inflicted harm, JMS will ensure that a medical assessment is completed within 12 hours or at the next daily sick call, whichever is earlier.
IIl. Standards for Treatment of Prisoners in Safety Cells
C. Prisoners shall be deprived ‘of clothing, mattress or blankets ONLY when it has been demonstrated that: 1. The prisoner will use them to harm her/himself. 2. The prisoner will destroy them. 3. The prisoner will use them to clog the plumbing or block observation windows.
D. 3. SFSD staff will provide a prisoner who has been deprived of clothing a suitably designed “safety garment” or fire retardant blanket for, the prisoner’s personal privacy, unless specific, identifiable risks to the prisoner’s safety or to the security of the facility are documented.
Procedure E-05 at Bates No. BULL CCSF 0009-00013.

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1

mental health opinion on placement and retention shall be secured within 24 hours

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of placement. Direct visual observation shall be conducted at least twice every thirty minutes. Such observation shall be documented.

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Procedures shall be established to assure administration of necessary nutrition

and fluids. Inmates shall be allowed to retain sufficient clothing, or be provided

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with a suitably designed "safety garment," to provide for their personal privacy

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unless specific identifiable risks to the inmate's safety or to the security of the

facility are documented.

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Title 15, § 1083, in effect as of February 10, 2001, states, in part:

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The Penal Code and the State Constitution expressly prohibit all cruel or unusual punishment. Additionally, there shall be the following limitations:
(d) In no case shall a safety cell, as specified in title 24, section 2- 470A.2.5, or any restraint device be used for disciplinary purposes. Procedure E-05 authorizes placement in a safety cell of arrestees who exhibited
“bizarre” behavior or were “gravely disabled,” categories not included in the Regulation §
1055. Procedure E-05 also requires that detainees be strip searched prior to placement in a
safety cell.
Notwithstanding Written Procedures Preventing Use Of Safety Cells For Disciplinary Purposes, Sheriff’s Department Personnel Regularly Place PreArraignment Detainees In Safety Cells As Punishment For Refusing To Submit To Strip Searches And For Other Perceived Uncooperative Behavior.
Procedure E-05 in effect since 1994 appears clear: “A safety cell SHALL NOT be used
under any circumstances for disciplinary or punitive purposes [and] A prisoner SHALL NOT
be placed in a safety cell for merely being uncooperative with staff or being verbally abusive to
staff.” Yet, notwithstanding this pellucid prohibition, safety cells have routinely been used to
discipline uncooperative detainees, including detainees who refuse to assent to a strip search.
Plaintiffs’ narratives are not aberrations but accurately reflect County policies.
Confirming plaintiffs’ accounts, Suzette Humphrey, a deputy at County Jail 9 who
participated in Bull’s placement in a safety cell, testified that at least since 1992, deputies have
placed arrestees who refuse to be strip searched in a safety cell. Humphrey, 6:24-7:1, 82:14-20,
77:11-16. Senior Deputy McConnell completed a safety cell form for Bull which noted that she
was placed in the safety cell for refusing to strip in. McConnell, 45:14-25.

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1

Karen Cotton is a Jail Psychiatric Services (JPS) therapist/counselor who had the

2 responsibility of deciding whether an individual should be placed in or removed from a safety

3 cell. Deposition of Karen Cotton, Ex. 20 to Seaton Decl., at 22:23-23:5. As recently as

4 November 3rd of last year, Cotton understood that refusal to submit to a strip search subjects a

5 pre-arraignment arrestee to safety cell placement. Cotton, at 56:22-57:10. Joseph Chow, also

6 assigned to JPS, has seen detainees placed in a safety cell for refusing to submit to a strip

7 search. Deposition of Joseph Chow, Ex. 21 to Seaton Decl., at 24:24-25:1. Cathleen Beltz, of

8 Jail Legal Services, co-authored a report on use of safety cells. She also found that detainees

9 were sometimes placed in safety cells for refusing to yield to a strip search. Deposition of

10 Cathleen Beltz, Ex. 22 to Seaton Decl., at 26:5-14.

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Valerie Carson, the Senior Deputy who placed plaintiff Mary Bull in a safety cell after

12 Bull’s transfer to County Jail 1, testified that “If they are being placed in a safety cell,

13 obviously, something happened where they weren’t going along with the strip search.” Carson,

14 18:10-12. By December 2003, Carson had not learned of any policy changes. Id., 30:18-20.

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Mitch Marquez, formerly with JPS, has seen detainees naked in a safety cell.

16 Deposition of Mitch Marquez, Ex. 23 to Seaton Decl., at 31:19-21. Undersheriff Dempsey had

17 been told that on a number of occasions detainees placed in safety cells had not been provided

18 garments in a timely fashion. Dempsey, 74:8-12. Cotton had made determinations that the

19 detainees in safety cells were not to receive any clothing. Cotton, 82:1-4.

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Undersheriff Jan Dempsey confirmed that all detainees “are stripped when they are in

21 the safety cell,” a policy which has remained unchanged since 1994. Dempsey, 32:18-19, 37:5-

22 7. Karen Cotton confirmed that detainees placed in a safety cell are strip searched. Cotton,

23 41:24-42:1, 85:2-11. If the arrestee does not remove his or her clothes voluntarily, deputies

24 remove the arrestee’s clothes in the safety cell and visually inspect the arrestee’s body cavities,

25 using force if necessary. Palencia, 45:15-46:4; Humphrey, 83:12-17, 84:13-25.

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Safety Cell Reports Submitted To The Sheriff By Jail Legal Services In September State That Department Policies And Practices Violate State Regulations And Raise Eighth Amendment Concerns; The Report Recommends That The Department Change Its Policies To Comply With The Law.

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1

In September 2002, Teresa Nelson, Directing Attorney of Prisoner Legal Services and

2 Cathleen Beltz, Legal Intern, submitted a report to the Sheriff’s Department: “San Francisco

3 County Jail Safety Cell Review: A Report of Findings.” Ex. 24 to Seaton Declaration, Bates

4 No. Bull CCSF 00098-00140. The report analyzed safety cells in Jails 1, 2, 3 and 8 during the

5 month of September 2001 and on March 14, 2002. Id., 00101. The report observed that:

6

• While Procedure E-05 included “gravely disabled” and “bizarre behavior” as

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bases for placing arrestees in a safety cell, the term “gravely disabled” is not

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included in CCR Title 15 § 1055 and the term “bizarre” was removed from the

9

regulation in 1998. Id. 00107

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• Jail personnel relied on “Bizarre behavior” as the basis for 25 percent of the

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placements. Id., 00109-00110.

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• “In all but one of 19 observed placements, deprivation of at least one item (jail

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clothing, garment, blanket, or mattress) occurred without approval.” Id., 00124.

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Id., 00124-00125.

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• Prisoners were observed without safety garment (1) overnight until the following

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day; (2) for two hours; (3) for 6 ½ hours and (4) for 28 hours. Id., 00125.

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• A “more universal concern is the failure to provide clothing to placed prisoners. .

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. SFSD policy of stripping and searching every prisoner prior to placement and

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depriving every prisoner of clothing while placed, without first determining if

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such action is justified, is out of compliance with recommended procedure.” Id.,

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00130.

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• In practice deputies failed to provide safety cell placements with food and water

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as required by regulations and policy. Id., 00127-00128.

24 The Report advised the Department that its practices not only failed to comply with State law,

25 but also raised Eighth Amendment concerns. Id., 00130-00131.

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The Report recommended a series of changes in policy, procedures and training. Id.,

27 00134-00137. These included:

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• Two of the criteria for placement in a safety cell, “gravely disturbed” and “bizarre

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behavior” be eliminated to conform to Regulation § 1055. Id., 00134.

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• A Watch Commander authorize all placements in a safety cell. Id., 00134.

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• Strip searches of those placed in safety cells be limited to those who pose a danger to

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themselves; that substitute clothing be immediately provided a prisoner placed in a

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safety cell unless that prisoner is deemed suicidal; and that blankets and a mattress

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be provided unless prisoner will use clothing to harm him/herself, or use them to

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block windows or clog plumbing. Id., 00134.

8

On June 19, 2003, Teresa Nelson submitted a follow-up report entitled Safety Cell

9 Report II to Sheriff Hennessey, based on Nelson’s analysis of placements occurring between

10 January 9 and January 24, 2003 in County Jails 1 and 2. Safety Cell Report II, Ex. 25 to Seaton

11 Decl., Bates No. Bull CCSF 00091-00097, at 00092. The Report noted that the Department

12 continued to use the terms “gravely disabled” and “bizarre behavior” among the criteria for

13 safety cell placement. Id., 00093. Failure to offer or provide food and water persisted. 26 of 14 forty prisoners placed in safety cells had not been offered or provided with water. Id., 00094.5

15 Fourteen Months After Receiving The Safety Cell Report And Eight Months After

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Plaintiffs File Their Lawsuit, The Department Learns That Plaintiffs’ Injunction Motion Is Imminent And Makes Changes in Safety Cell Procedure, Finally

17 Claiming To Adopt Recommendations Of The September 2002 Report.

On December 24, 2003, Undersheriff Dempsey sent a memorandum to custodial 18

personnel outlining changes in the safety cell policy. Dempsey December Memo, Ex. 27 to 19

Seaton Declaration. The changes included the following: (1) only Jail Medical Services or Jail 20

Psychiatric Services can determine whether someone is “gravely disabled, reiterating 21

Dempsey’s June 2003 memorandum; (2) only an individual who is a danger to self, who 22

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5 On June 26, 2003, two months after plaintiffs filed suit challenging the safety cell practices, Chief Deputy Dempsey sent a memorandum to all Custody Division personnel revising the safety cell policy. Memorandum, Bates No. Bull CCSF 00039, Ex. 26 to Seaton Decl. The memorandum first noted that “The Use of the Safety Cell policy is currently being reviewed.” The memorandum directed jail personnel that deputies will no longer make the determination of whether a prisoner is exhibiting behavior classified as “gravely disabled.” Jail Psychiatric Services will make that determination. Whether the Department effectively communicated this “new” policy change is an open question. As of her November 2003 deposition, Cotton of JPS had seen nothing in writing about the “gravely disabled” designation. Cotton, 96:11-97:10.

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1 requests placement in a safety cell or is a danger to others will be placed in a safety cell,

2 tracking Title 15, § 1055; (3) bizarre behavior will not longer be basis for placement in a safety

3 cell; (4) prior to placement in a safety cell, deputies will only strip search those prisoners who

4 are a danger to themselves, who request placement in a safety cell or whose conduct creates a

5 reasonable suspicion warranting a strip search; and prisoners will not remain in safety cells

6 longer than 24 hours. Id.6

7

LEGAL ARGUMENT

8 PLAINTIFFS ARE ENTITLED TO A PRELIMINARY INJUNCTION

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A. The Test For Injunctive Relief.

10

Established Ninth Circuit precedent requires the applicant for a preliminary injunction to

11 demonstrate: “(1) a likelihood of success on the merits; (2) a significant threat of irreparable

12 injury; (3) that the balance of hardships favors the applicant; and (4) whether any public interest

13 favors granting an injunction.” Raich v. Ashcroft, 325 F.3d 1222, (9th Cir. 2003). The Ninth

14 Circuit “also uses an alternative test that requires the applicant to demonstrate either: a

15 combination of probable success on the merits and the possibility of irreparable injury; or

16 serious questions going to the merits and that the balance of hardships tips sharply in the

17 applicant's favor. These two tests are not inconsistent. Rather, they represent a continuum of

18 equitable discretion, whereby ‘the greater the relative hardship to the moving party, the less

19 probability of success must be shown.’ " Id. (citations omitted). Plaintiffs’ will prevail on the

20 merits, irreparable harm exists and the burden imposed on defendants by requiring them to

21 comply with Constitutional norms and State law is minimal.

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B. Plaintiffs Will Succeed On The Merits

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1. Ninth Circuit Precedent Unequivocally Forbids Blanket Strip

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Searching Pre-Arraignment Detainees Who Do Not Appear

To Possess Contraband Or To Pose A Threat Of Harm To

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6 Dempsey testified at her deposition that the Department removed “bizarre behavior” as a basis for safety cell placement due to changes in Title 15 in 2001. Dempsey, 43:11-16, 64:14-16. In responding to interrogatories, however, Dempsey confirmed that the removal of the “bizarre behavior” language did not occur until December 2003. Interrogatory Answers, Ex. 28 to Seaton Declaration, at 18:5-8.

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Themselves Or To Others.

2

The Ninth Circuit has observed that “The intrusiveness of a body-cavity search cannot

3 be overstated. Strip searches involving the visual exploration of body cavities is dehumanizing 4 and humiliating.” Kennedy v. Los Angeles Police Dept., 901 F.2d 702, 711 (9th Cir. 1989). See, 5 e.g., Giles v. Ackerman, 746 F.2d 714, 617 (9th Cir. 1984) (strip search caused the “detainee’s

6 privacy [to be] invaded in a frightening and humiliating manner.”).

7

The Ninth Circuit has enunciated clear guidelines governing strip searches of pretrial

8 detainees. In Giles v. Ackerman, 746 F.2d 614 (9th Cir. 1984), plaintiff had been strip searched

9 at a local Idaho jail following her arrest for a traffic violation. Holding that strip searches must

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be predicated on reasonable suspicion that the arrestee is carrying contraband, the Court stated: [W]e hold 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. Reasonable suspicion may be based on such factors as the nature of the offense, the arrestee's appearance and conduct, and the prior arrest record. 746 F.2d at 617. Rejecting the argument that those arrested for minor offenses likely would be carrying contraband, the court noted, “[A]rrest and confinement in the Bonneville County Jail are unplanned events, so the policy could not possibly deter arrestees from carrying contraband.” 746 F.2d at 617. Giles further held that the placing of temporary detainees in the general population did not justify the County’s policy, explaining " ‘[d]efendants' heavy reliance on the intermingling of its temporary detainees with the general [jail] population is misplaced ...’ because such intermingling is both limited and avoidable.” 746 F.2d at 619. The Ninth Circuit revisited the issue in Ward v. San Diego County, 791 F.2d 1329 (9th Cir. 1986). Following plaintiff’s 1981 arrest for the misdemeanor offense of “failing to appear” she was stripped and searched. Rejecting qualified immunity, the court concluded that “that the law was sufficiently clear in early 1981 so as to expose a public official who unreasonably authorized blanket strip searches of minor offense arrestees to civil liability under 42 U.S.C. § 1983.” 791 F.2d at 1332-1333. Thompson v. City of Los Angeles, 885 F.2d 1439 (9th Cir. 1989) held that strip searches

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1 may be constitutional where the crime for which the detainee has been arrested -- in Thompson,

2 grand theft auto -- provides the reasonable suspicion necessary to justify the search. The court,

3 however, reiterated that: “[T]his court and several other courts have invalidated blanket visual

4 strip search policies as applied to arrestees detained for minor traffic offenses and other

5 misdemeanors not normally associated with weapons or other contraband.” 885 F.2d at 1446.

6

Thompson also reiterated that the placing of a newly arrested detainee “into contact with

7 the general jail population . . . by itself cannot justify a strip search,” 885 F.2d at 1447, citing

8 Giles (746 F.2d at 618) and Masters v. Crouch, 872 F.2d 1248, 1253, 1254-1255 (6th Cir. 1990)

9 ("the fact of intermingling alone has never been found to justify [a strip search] without

10 consideration of the nature of the offense and the question of whether there is any reasonable

11 basis for concern that the particular detainee will attempt to introduce weapons or other

12 contraband into the institution"). 885 F.2d at 1147.

13

A month after Thompson, the Ninth Circuit decided Kennedy v. Los Angeles Police

14 Dept., 901 F.2d 702 (9th Cir. 1989), this circuit’s leading opinion on the constitutional limits

15 placed on strip searches. Following plaintiff’s arrest for felony grand theft (her roommates

16 television set) she was a forced to submit to a body cavity search. 901 F.2d at 704. The LAPD

17 subjected all felony arrestees to a body-cavity search as a matter of course, whereas only those

18 misdemeanor arrestees charged with offenses relating to narcotics or suspected of concealing

19 contraband or weapons are forced to undergo such a search. 901 F.2d at 713. The court held

20 the classification of particular conduct as a felony rather than a misdemeanor did not, standing 21 alone, justify a strip search. 901 F.2d 716.7 See, e.g. Arpin v. Santa Clara Valley 22 Transportation Agency, 261 F.3d 912, 922 (9th Cir. 2001) (“[S]trip searches of persons arrested

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7 In Act Up!/Portland v. Bagley, 988 F.2d 868, 871-872 (9th Cir. 1992), the Ninth Circuit held that by 1989 “it was clearly established in this circuit that it is unlawful to strip search an arrestee brought to a jail facility on charges of committing a minor offense, unless the officer directing the search possesses ‘a reasonable suspicion that the individual arrestee is carrying or concealing contraband.’ “ See, Wong v. Beebe, 2002 WL 31548486 (D. Or. 2002) (“[W]ell before Wong's strip and cavity search [in 1999], it was clear that blanket strip search policies are unconstitutional if justified by nothing more than an arrest on suspicion of the commission of a felony or a planned confinement in the general jail population”)

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1 for minor offenses are prohibited by the Fourth Amendment, unless reasonable suspicion exists

2 that the arrestee is carrying or concealing contraband or suffering from a communicable

3 disease.”); Silvia v. Clackamas County 2001 WL 34039482, (D. Or. 2001) (“Well before

4 Silvia's strip and cavity search, it was clear that blanket strip search policies justified by nothing

5 more than arrest on suspicion of the commission of a felony or a planned confinement in the

6 general jail population are unconstitutional.”)

7

2. The County’s Strip Search Policies And Practices Must

8

Conform To State Law Which Places Strict Limits on Strip Searchers Of Misdemeanants.

9

Defendants’ conduct also is governed by California Penal Code § 4030 which forbids

10 strip searches of arrestees prior to placement in the general population absent “reasonable

11 suspicion based on specific and articulable facts to believe such person is concealing a weapon

12 or contraband, and a strip search will result in the discovery of the weapon or contraband.” §

13 4030(f). Such searches must be authorized in writing by a supervisor who has documented the

14 basis for the search. Section 4030 forbids placing those arrested for minor offenses in the

15 general jail population unless the arrestee is not cited or released, or released on his or her own

16 recognizance or unable to post bail. The arrestee must have at least three hours to post bail.

17 Exceptions to such placement may only occur in a documented emergency. § 4030(g).

18

3. The County’s Practice And Policy Of Subjecting Pretrial

19

Detainees To Strip Searches Absent Reasonable Suspicion That The Detainees Possesses Contraband Or Poses A

20

Security Threat To The Jail Violates The Fourth Amendment And Penal Code § 4030 .

21

The record leaves no doubt of plaintiffs’ success on the merits. Deputies strip search all

22 arrestees held prior to arraignment who are classified for housing, regardless of the charges

23 against them or whether deputies possess a reasonable suspicion that they may possess a

24 weapon or contraband. Bull was arrested during participation in a political demonstration; Flick

25 for public intoxication; Marron for credit card fraud; De Ranleau for homeless related

26 infractions, Giampaoli for owning a vicious dog, Fleming for disturbing the peace and

27 Timbrook for writing bad checks. Arrestees who fail to promptly post bail also are strip

28
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searched, well before three hours elapse after their detention. Arata’s directive requires strip

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1 searching all those in holding cells near the end of a shift. See, Arata Insert, Ex. 4 to Seaton

2 Decl., supra.

3 /////

4 /////

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
CASPER, MEADOWS & SCHWARTZ
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///// 4. Using Safety Cells To Impose Discipline On Uncooperative Arrestees Violates The Fourteenth Amendment.
Bell v. Wolfish 441 U.S. 520 (1979) held that the Due Process Clause governed condition of confinement claims raised by pretrial detainees. Bell explained that “the proper inquiry is whether those conditions amount to punishment of the detainee. . . . ¶ If a restriction or condition is not reasonably related to a legitimate goal--if it is arbitrary or purposeless--a court permissibly may infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted upon detainees qua detainees. 441 U.S. at 535, 538-539.
Even absent proof of an “intent to punish”, the conditions of confinement may raise an inference that the condition of confinement deprived a detainee of due process where the jailer’s action was excessive in relation to the alternative [non-disciplinary] purpose assigned (to it), in light of available less harsh alternatives. 441 U.S. at 538, 539, n.20. See, Hallstrom v. City of Garden City, 991 F.2d 1473, 1485 (9th Cir. 1993) (Court held detaining plaintiff for refusing to comply with procedures following her arrest for a broken taillight was punishment for failing to cooperate and excessive.) 991 F.2d at 1485.
In 1995, the Ninth Circuit considered the permissible use of safety cells in Anderson v. County of Kern, 45 F.3d 1310 (9th Cir. 1995). The court affirmed the district court decision declining to enjoin use of a safety cells for placement of mentally disturbed and suicidal prisoners. The court noted that a safety cell “is employed in response to very severe safety concerns.” 45 F.3d at 1314. The cells were used for “temporary placement . . .to deprive the prisoners of all means of harming themselves.” Jail officials could properly use safety cells “for short periods of time” to “control violent inmates.” Id.
In Henry v. County of Shasta, 132 F.3d 512 (9th Cir. 1997), plaintiff was arrested after

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1 refusing to sign a promise to appear form following a traffic stop. After Henry refused to

2 cooperate with the jail nurse, he was placed naked in a padded safety cell, later given a blanket

3 and released after nine hours in the cell. 132 F.3d at 515-516. The court described defendants’

4 conduct “a blatantly unconstitutional course of treatment -- stripping persons who have

5 committed minor traffic infractions, throwing them naked into a "rubber room" and holding

6 them there for ten hours or more for failing to sign a traffic ticket or asserting their legal right to

7 be brought before a magistrate.” 132 F.3d at 520.

8

5. The County’s Practice And Policy Of Using A “Safety Cell”

9

To Confine An Unclothed Or Partially Clothed Arrestee (1)

10

Who Has Done No More Than Refuse To Submit To A Strip

Search And/Or (2) An Unclothed Or Partially Clothed

11

Arrestee Who Pose No Threat To Themselves, To Others Or

12

To The Security Of The Jails Violates Pretrial Detainees’

Right To Due Process Guaranteed By The Fourteenth

13

Amendment.

14

The record describes the Department’s regular practice of placing into safety cells

15 recalcitrant arrestees who refuse to submit to strip searches. It is as if San Francisco’s jailers

16 and their wards were governed by policies foreign to us. Under these policies, Bull and Noh

17 were placed in safety cells after asserting their constitutional rights. Giampaoli was placed in a

18 safety cell after refusing to disrobe before a male officer and de Ranleau was placed there for

19 asking to use a phone book. Bronson was punished for not coughing properly during a strip

20 search and Mangosing was placed in a safety cell to teach her a lesson. Flick, Fleming and

21 Johnson were placed in safety cells for no apparent reason. Several were observed by deputies

22 of the opposite sex. None posed a danger to themselves or others. Most were left unclothed for

23 hours, some without water. These practices also ran afoul of State regulations, prohibiting use

24 of safety cells for disciplinary purposes. They also violated Procedure E-05, violations which

25 were apparently of no concern to anyone in the Department.

26

This use of safety cells goes well beyond the rationale for safety cells condoned in

27 Anderson – to remedy “very severe safety concerns” by “depri[ving] the prisoners of all means

28
CASPER, MEADOWS & SCHWARTZ
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of harming themselves. 45 F.3d at 1314. Placing non-violent pre-arraignment detainees in

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1 padded cells for refusing to comply with jail procedures is “blatantly unconstitutional.” Henry,

2 132 F.3d at 520.

3

C. The Proposed Injunction Furthers The Public Interest While

4

Placing Only A Minimal Burden On Defendants.

No cognizable burden, much less an intolerable one, will be placed on the County by 5

requiring it to enforce a strip search policy requiring particularized suspicion of violence or 6

contraband before conducting a strip search. Similarly, enjoining the County from violating the 7

Due Process Clause and regulations in its safety cell policy will cause no untoward burden. At 8

the same time, the public interest will be greatly enhanced by enforcement of policies and 9

practices which adhere to the Constitution, the California Penal Code and state regulations. 10

11

D. Unless Restrained By This Court, Defendants’ Unconstitutional Conduct Will Irreparably Harm Plaintiffs.

12

The Ninth Circuit, in Kennedy and Giles, underscored the dehumanizing, humiliating

13 effect of strip searches. “‘[A]n alleged constitutional infringement will often alone constitute

14 irreparable harm.’” Associated General Contractors of California, Inc. v. Coalition for

15 Economic Equity, 950 F.2d 1401, 1412 (9th Cir. 1991). Longstanding precedent, preexisting

16 California law and regulations, and the County’s own procedures have failed to alter these

17 debasing practices, including blanket strip searches and placing detainees naked in safety cells

18 to punish refusal to cooperate, with, among other things, unconstitutional strip searches. Absent

19 injunctive relief, no guarantee exists that defendants will abandon their illegal practices.

20

E. Plaintiffs Have Standing To Seek Injunctive Relief.

21

Whether a plaintiff has standing is determined by the situation which exists at the

22 commencement of the suit. Lujan v. Defenders of Wildlife (1992) 504 U.S. 555, 571; Bernhardt

23 v. County of Los Angeles 279 F.3d 862, 868 ( 9th Cir. 2001) (“We examine whether Bernhardt

24 had standing at the time the lawsuit was filed.”) See, e.g., Paradise Creations, Inc. v. UV Sales,

25 Inc., 315 F.3d 1304, 1309 (11th Cir. 2003). The County cannot dispute that when plaintiffs’

26 filed their action, they had allegedly suffered from having been strip searched and, in some

27 cases, placed in safety cells. No dispute exists that plaintiffs sufficiently alleged that when they

28
CASPER, MEADOWS & SCHWARTZ
2121 N. California Blvd., Suite 1020
Walnut Creek, CA 94596 TEL: (925) 947-1147 FAX (925) 947-1131

sustained this harm, the County had a blanket strip search policy in force and was using safety

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1 cells as placement for uncooperative arrestees.

2

Plaintiffs have standing under City of Los Angeles v. Lyons, 461 U.S. 95 (1983). Lyons

3 alleged he had been injured by the LAPD when its officers had illegally placed him in a

4 chokehold following a traffic stop. Lyons could not show that all police officers always apply

5 chokeholds or that the city authorized its officers to always apply chokeholds and that Lyons

6 therefore would face harm from officers acting within “the strictures of the City’s policy.” 461

7 U.S. at 106. The majority faulted the dissent for failing to point to “any written or oral

8 pronouncement by the LAPD or any evidence showing a pattern of police behavior” that would

9 indicate that the official policy” authorizing the challenged conduct. 461 U.S. at 110, n.9.

10

Armstrong v. Davis, 275 F.3d 849 (9th Cir. 2001) held that where, as here, the

11 constitutional violation arose from official policy or practices sanctioned by the government,

12 plaintiffs have standing to seek an injunction. See, LaDuke v. Nelson 762 F.2d 1318, 1324 (9th

13 Cir. 1985) (“[D]efendants engaged in a standard pattern of officially sanctioned officer

14 behavior.”). The harm which plaintiffs sustained was directly traceable to a written blanket

15 strip search policy and to strip search and safety cell practices which the County officially

16 sanctioned.

17

Mary Bull has sufficiently established the likelihood that she will again be subject to the

18 County’s unconstitutional conduct. Mary Bull plans to participate lawfully and nonviolently in

19 future protests in San Francisco. Bull Declaration, ¶¶ 19-20. She anticipates that even though

20 she plans to commit no crime, she will be arrested and transported to County Jail 9 where she

21 will again refuse to be strip searched and will again be placed in a safety cell. Id., ¶ 22.

22

In Maneely v. City of Newburgh, 208 F.R.D. 69, 73 (S.D.N.Y. 2002), standing was

23 found where plaintiff alleged “that at the time that the department was given notice of this suit,

24 there was an official policy of strip searching all arrestees who were detained in a cell. Maneely

25 thus ha[d] standing to seek injunctive relief.” Mack v. Suffolk County, 191 F.R.D. 16 (D. Mass.

26 2000), recognized that plaintiffs, who had been arrested on prior occasions, were more likely to

27 be arrested than those with no criminal history. 191 F.R.D. at 20. “Under the circumstances,”

28
CASPER, MEADOWS & SCHWARTZ
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Walnut Creek, CA 94596 TEL: (925) 947-1147 FAX (925) 947-1131

said the court, “it is not unreasonable to conclude that future arrests are likely.” Id. The court

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1 distinguished Lyons by noting that the police conduct there was episodic and not the “routine

2 procedure” practiced by County personnel. Id., at 21. As here, the blanket strip searches

3 challenged in Mack were not simply the result of officially condoned “practice[s];” they

4 resulted from an “iron clad policy” in place at the time plaintiffs “were arrested and at the time

5 Mack filed her complaint.” Id. In San Francisco those iron clad policies required deputies to

6 strip search all classified pre-arraignment detainees; to strip search detainees prior to placement

7 in safety cells; and strip search pre-arraignment detainees be strip searched again upon transfer

8 to another facility, such as County Jail 1. Mack applies equally well to plaintiffs here: “As

9 [plaintiffs] have demonstrated that, at the time the complaint was filed, a real and immediate

10 threat of future injury existed, they have standing to seek injunctive relief.” Id.

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CASPER, MEADOWS & SCHWARTZ
2121 N. California Blvd., Suite 1020
Walnut Creek, CA 94596 TEL: (925) 947-1147 FAX (925) 947-1131

F. The Recent Change In Procedures Does Not Moot Plaintiffs’ Motion: The County Has Not Materially Altered Its Blanket Strip Search Policy And Cannot Meet Its Heavy Burden Of Showing That Its Personnel Will Now Adhere To Constitutional Norms.
Plaintiffs’ motion is not moot because the County has not altered its blanket strip search policy requiring deputies to strip search all arrestees at County Jail 9 who are being classified for housing, a policy exacerbated by requiring deputies to strip search those remaining in holding cells near the end of a shift. Arata Insert, Ex. 4,to Seaton Declaration, supra.
Moreover, even though defendants have modified their written safety cell policies, such modification, in the midst of litigation, offers no guarantee that safety cell practices will adhere to he constitution. Indeed, the County has taken no steps whatsoever to ensure that safety cell placements will not be used as punishment for those unwilling to comply with jailers’ directives, such as submitting to a strip search.
In Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 189 (2000) the Court noted, “It is well settled that “a defendant's voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice” . The Court set forth this “stringent” test: “A case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” The “ ‘heavy burden of persua[ding]’ the court that the challenged conduct

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1 cannot reasonably be expected to start up again lies with the party asserting mootness.” 528

2 U.S. at 189 (citations omitted).

3

The County cannot meet this burden. Since Giles in 1984 and certainly after Thompson

4 and Kennedy in 1989, the Ninth Circuit made clear that the blanket strip search policies which

5 plaintiffs seek to enjoin here violated the Fourth Amendment. County policy requires that once

6 arrestees are classified, all are strip searched. Moreover, deputies’ actual practices deviate even

7 further from constitutional standards. Arrestees are often strip searched, regardless of

8 reasonable suspicion, almost immediately after entering the facility. And, notwithstanding

9 contrary written procedures, male deputies participated in the strip searching of several

10 plaintiffs, including Mary Bull, Lisa Giampaoli, and Charli Johnson.

11

The Ninth Circuit also set clear limits on the use of safety cells in Anderson in 1995 and

12 in Henry, decided two years later. Since at least 2001, the State of California’s regulations have

13 prohibited use of safety cells for discipline and limited the criteria for safety cell placement.

14 Yet nothing was done. Even after the 2002 Safety Cell Report, the County waited over a year

15 after the Safety Cell Report, -- until the eve of the filing of this motion -- to change part of its

16 written policy. In any event, deputies have regularly violated written procedures governing

17 safety cell placements. For years, Procedure E-05, the written policy, has prohibited use of the

18 safety cells for disciplinary purposes to punish uncooperative arrestees. Yet, on two occasions,

19 deputies placed Mary Bull in a safety cell for refusing to submit to a strip search. Several

20 deputies pulled Miki Mangosing from the holding cell for attempting to talk to her friend in the

21 next cell, placed her in a safety cell, forcibly strip searched her, and left her naked in the cell

22 without food or water for 12 hours. Lisa Giampaoli was booked and instructed to disrobe in the

23 presence of a male officer. When she refused, male and female deputies dragged her into a

24 safety cell, forcibly removed her clothing and left her naked in the cell for approximately 12

25 hours. Alexis Bronson was told that he was not coughing loudly enough and was dragged to a

26 safety cell by five deputies where he was kept naked for 12 hours without food or water. The

27 existence of written policies availed these plaintiffs nothing.

28
CASPER, MEADOWS & SCHWARTZ
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Delays between clearly established court-authored constitutional guidelines and the

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1 change in written procedures have led courts to reject defendants’ claims of mootness in strip

2 search litigation. In Maneely v. City of Newburgh, 208 F.R.D. 69 (S.D.N.Y.2002), plaintiff

3 “sought: a declaratory judgment declaring that a strip search of a pre-arraignment arrestee

4 undertaken absent reasonable suspicion that the arrestee is concealing weapons or other

5 contraband is unconstitutional; [and] an order enjoining defendants from implementing or

6 enforcing such a policy.” Id., at 71. Following submission of plaintiff’s claim, but seven

7 months prior to filing suit, the City changed its policy to conform to the constitution.

8 Rejecting defendants’ mootness claim, the court pointed to the five years which had elapsed

9 since the unconstitutionality of defendants’ strip search policies had become clear: “Given that

10 it took the defendants well over five years to conform Newburgh's strip search policy with the

11 law, it is not “absolutely clear” that defendants will not “return to their old ways.” Id., at 73-

12 74.

13

Plaintiff in Mack v. Suffolk County, 191 F.R.D. 16 (D. Mass. 2000) also sought

14 injunctive relief to enjoin defendant’s unlawful strip search policies. The County

15 unsuccessfully argued mootness, noting the change in its policy. Defendant’s change, however,

16 did not “eliminate the possibility” that plaintiffs would be unlawfully stripped searched in the

17 future since, “Absent the imperative imposed by an injunction, these Defendants are free to

18 reinstate the objectionable practice at any time.” Id., at 21. The court emphasized that the

19 County had maintained its procedures years after the Circuit Court of Appeals had deemed such

20 practices unconstitutional. The court concluded that “Defendant changed its policy to avoid

21 liability in this case at bar rather than to comport with constitutional standards.” Id., at 22.

22

The County cannot meet its “heavy burden” of convincing this Court that it is

23 “absolutely clear” that its personnel will adhere to constitutional norms. The County cannot lift

24 this weighty burden. The County may not take solace in the preparation of some new

25 procedures in the midst of litigation occurring years after controlling Ninth Circuit precedent.

26 The County’s dismal track record in enforcing its own written policies further defeats its

27 mootness claim. The County’s mootness claim fails.

28
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Walnut Creek, CA 94596 TEL: (925) 947-1147 FAX (925) 947-1131

CONCLUSION
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1

For the foregoing reasons, the Court must grant the preliminary injunction.

2 Dated: January 21, 2004 3
4

Mark E. Merin Andrew C. Schwartz Thom Seaton Attorneys for Plaintiffs

5

By____________________

6

Thom Seaton

7

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2121 N. California Blvd., Suite 1020
Walnut Creek, CA 94596 TEL: (925) 947-1147 FAX (925) 947-1131

MARY BULL, et al., v. CITY AND COUNTY OF SAN FRANCISCO, et al USDC Case No. C03-1840 CRB
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 Case 3:03-cv-01840-CRB Document 63 Filed 01/22/2004 Page 1 of 21

1 DENNIS J. HERRERA, State Bar #139669

City Attorney

2 JOANNE HOEPER, State Bar #114961

Chief Trial Attorney

3 INGRID M. EVANS, State Bar # 179094

DAVID B. NEWDORF, State Bar #172960

4 ROBERT A. BONTA, State Bar #202668

Deputy City Attorneys

5 Fox Plaza

1390 Market Street, Sixth Floor

6 San Francisco, California 94102-5408

Telephone: (415) 554-3884

7 Facsimile: (415) 554-3837

E-Mail:

ingrid.evans@sfgov.org

8

9 Attorneys for Defendants CITY AND COUNTY OF SAN FRANCISCO,
10 SAN FRANCISCO SHERIFF'S DEPARTMENT and SAN FRANCISCO COUNTY SHERIFF MICHAEL HENNESSEY
11

12

UNITED STATES DISTRICT COURT

13

NORTHERN DISTRICT OF CALIFORNIA

14 MARY BULL, JONAH ZERN, LISA GIAMPAOLI, MARCY CORNEAU,
15 ALEXIS BRONSON, MICKY MANGOSING, CHARLI JOHNSON,
16 LEIGH FLEMING, LAURA TIMBROOK, and all others similarly
17 situated,

18

Plaintiffs,

19

vs.

20 CITY AND COUNTY OF SAN FRANCISCO, SAN FRANCISCO
21 SHERIFF'S DEPARTMENT, SAN FRANCISCO COUNTY SHERIFF
22 MICHAEL HENNESSEY, IN HIS INDIVIDUAL AND OFFICIAL
23 CAPACITY, AND SAN FRANCISCO COUNTY SHERIFF'S DEPUTIES DOES
24 1 THROUGH 150,

Case No. C03-1840 CRB
CROSS·COMPLAINT BY DEFENDANTS CITY AND COUNTY OF SAN FRANCISCO AND SAN FRANCISCO COUNTY SHERIFF MICHAEL HENNESSEY AGAINST PLAINTIFFS MARY BULL JONAH ZERN, LISA GIAMPAOLI, MARCY CORNEAU, ALEXIS BRONSON, MICKY MANGOSlNG, CHARLI JOHNSON, LEIGH FLEMING, LAURA TIMBROOK FOR DECLARATORY RELIEF

25

Defendants.

26

27

28 CCSF'S & SHERIFF's Cross-complaint for

1

Declaratory Relief

USDC CASE NO. C03·1480 CRB

CITY AND COUNTY OF SAN 1 FRANCISCO AND SAN FRANCISCO
COUNTY SHERIFF MICHAEL
2 HENNESSEY,

3

Cross-complainants,

4 vs.

5 MARY BULL, JONAH ZERN, LISA GIAMPAOLI, MARCY CORNEAU,
6 ALEXIS BRONSON, MICKY MANGOSING, CHARLI JOHNSON,
7 LEIGH FLEMING, LAURA TIMBROOK,
8
Cross-defendants. 9

10
Pursuant to Federal Rule of Civil Procedure 13, Defendants and Cross-complainants, City 11
and County of San Francisco, and San Francisco County Sheriff Michael Hennessey, in his 12
official capacity (collectively "cross-complainants" or "defendants"), cross-complain and allege 13
as follows: 14
GENERAL ALLEGATIONS 15
1. Defendant and Cross-complainant City and County of San Francisco ("City" or "San 16
Francisco") is, and at all times herein was, a political sub-division of the State of 17
California. 18
2. Defendant and Cross-complainant San Francisco County Sheriff Michael Hennessey 19
was at all relevant times acting in his official capacity. 20
3. The City is informed and believes, and thereon alleges that Cross-defendants Mary
21
Bull, Jonah Zern, Lisa Giampaoli, Marcy Comeau, Alexis Bronson, Micky
22
Mangosing, Charli Johnson, Leigh Fleming, Laura Timbrook are, and at all times 23
herein, were individuals who are citizens of the United States and residents of the 24
State of California. 25

26

27

28 CCSF'S & SHERIFF's Cross-complaint for

2

Declaratory Relief

USDC CASE NO. C03-1480 CRB

1

NATURE OF DISPUTE

2

4. Plaintiff Mary Bull alleges that she was arrested in San Francisco in November 2002

3

and charged with felony vandalism. Ms. Bull alleges that she was then taken to the

4

San Francisco County Jail and subsequently searched and placed in a safety cell.

5

5. Plaintiff Jonah Zem alleges that he was arrested in San Francisco on January 18,

6

2003 and charged with felony vandalism and resisting arrest with serious injury to a

7

police officer. Mr. Zem alleges that he was taken to the San Francisco County Jail

8

and subsequently searched.

9

6. Plaintiff Lisa Giampaoli alleges that she was arrested in San Francisco on January 19,

10

2002 and charged with felony aggravated assault. Ms. Giampaoli alleges that she was

11

taken to the San Francisco County Jail and subsequently searched and placed in a

12

safety cell.

13

7. Plaintiff Marcy Comeau alleges that she was arrested in San Francisco on September

14

5,2003, and charged with battery. Ms. Comeau alleges that she was taken to the San

15

Francisco County Jail and subsequently searched.

16

8. Plaintiff Alexis Bronson alleges that he was arrested in San Francisco on August 5,

17

2002 for felony criminal threats, battery and being drunk in public. Mr. Bronson

18

alleges that he was taken to the San Francisco County Jail and subsequently searched

19

and placed in a safety cell.

20

9. Plaintiff Micky Mangosing alleges that she was arrested in San Francisco on

21

December 12, 2002 for being drunk in public. Ms. Mangosing alleges that she was

22

taken to the San Francisco County Jail and subsequently searched and placed in a

23

safety cell.

24

10. Plaintiff Charli Johnson alleges that she was arrested in San Francisco on August 30,

25

2001 for outstanding arrest warrants. Ms. Johnson alleges that she was taken to the

26

San Francisco County Jail and subsequently searched and placed in a safety cell.

27

28 CCSF'S & SHERIFF's Cross-complaint for

3

Declaratory Relief

USDC CASE NO. C03-1480 CRB

1

11. Plaintiff Leigh Fleming alleges that she was arrested in San Francisco on April 12,

2

2003, and charged with disturbing the peace and resisting arrest. Ms. Fleming alleges

3

that she was taken to the San Francisco County Jail and subsequently searched and

4

placed in a safety cell.

5

12. Plaintiff Laura Timbrook alleges that she was arrested in San Francisco on January 6,

6

2003 for outstanding arrest warrants and charged with burglary, forgery and intent to

7

defraud. Ms. Timbrook alleges that she was taken to the San Francisco County Jail

8

and subsequently searched and placed in a safety cell.

9

13. Plaintiffs Mary Bull, Jonah Zern, Lisa Giampaoli, Marcy Comeau, Alexis Bronson,

10

Micky Mangosing, Charli Johnson, Leigh Fleming, and Laura Timbrook allege that

11

the policies of the San Francisco Sheriff's Department regarding search procedures

12

and safety cell use violate the California and United States' Constitutions and the

13

California Penal Code. Plaintiffs seek to enjoin Defendants' search and safety cell

14

use policies as applied to them. On January 21, 2004 Plaintiffs filed a Motion for

15

Preliminary Injunction.

16

14. Defendants and Cross-complainants contend that injunctive relief is moot at this time

17

as the policies applied to Plaintiffs no longer govern search or safety cell procedures

18

in the San Francisco County Jail. On January 21, 2004, San Francisco Sheriff

19

Michael Hennessey adopted two new policies entitled "Searches" and "Safety Cell

20

Use," true copies of which are attached hereto as Exhibits A and B, respeotively.

21

Plaintiffs were on written notice that defendants intended to adopt these new policies

22

on January 21,2004 and plaintiffs were invited to review and comment on the draft

23

policies prior to their implementation. Plaintiffs nevertheless elected to file a Motion

24

for Preliminary Injunction on the very day that the new policies were adopted.

25

15. Defendants and Cross-complainants further contend that the Sheriff's Department's

26

"Searches" policy adopted on January 21, 2004 satisfies the requirements of

27

California Penal Code § 4030 and is constitutional under California and federal law.

28 CCSF'S & SHERIFF's Cross-complaint for

4

Declaratory Relief

USDC CASE NO. C03-14S0 CRB

1

16. Defendants and Cross-complainants contend that the Sheriff's Department's "Safety

2

Cell Use" policy satisfies the requirements of the California Code of Regulations

3

Title 15 and is constitutional under California and federal law.

4

17. An actual controversy has arisen and now exists between Defendants and Cross-

5

complainants and Cross-defendants in that San Francisco asserts that Plaintiffs'

6

claims for injunctive relief are moot and that the new "Searches" and "Safety Cell

7

Use" policies comply with state and federal law .

8

DECLARATION SOUGHT

9

18. In order to resolve this controversy, Defendants and Cross-compiainants request that,

10

pursuant to 28 U.S.C. §2201, this Court declare the respective rights and duties of the

11

parties in this matter and, in particular, that the Court declare that: 1) Plaintiffs' and

12

Cross-defendants' claim for injunctive relief is moot; and 2) the Sheriff's policies

13

entitled "Searches" and "Safety Cell Use," adopted January 21, 2004 and attached

14

hereto as Exhibits A and B, respectively, comply with state and federal law.

15

16

17

18

19

20

21

22

23

24

25

26

27

28 CCSF'S & SHERIFF's Cross-complaint for

5

Declaratory Relief

USDC CASE NO. C03-14S0 CRB

1

PRAYER FOR RELIEF

2

For the reasons set forth above, Defendants and Cross-complainants pray for relief as

3

follows:

4

1. A declaration that Plaintiffs and Cross-defendants request for injunctive relief is moot;

5

2. A declaration that the San Francisco Sheriff's policies entitled "Searches" and "Safety

6

Cell Use," adopted January 21,2004 and attached hereto as Exhibits A and B,

7

respectively, comply with state and federal Law;

8

3. Costs including attorneys' fees; and

9

4. Any and all other relief to which Defendants and Cross-complainants may be justly

10

entitled.

11 Dated: January 22, 2004 12 13 14 15 16 17 18 19 20

DENNIS J. HERRERA City Attorney JOANNE HOEPER Chief Trial Attorney INGRID M. EVANS DAVID B. NEWDORF Deputy City Attorneys
lsI By:. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ _
INGRID M. EVANS
Attorneys for Defendants CITY AND COUNTY OF SAN FRANCISCO, and SAN FRANCISCO COUNTY SHERIFF MICHAEL HENNESSEY

21

22

23

24

25

26

27

28 CCSF'S & SHERIFF's Cross-complaint for

6

Declaratory Relief

USDC CASE NO. C03·1480 CRB

EXHIBIT A
DocumentS

SAN FRANCISCO SHERIFF'S DEPARTMENT Policy I Procedure #
Date Issued:

E-16
Date Revised:

SUBJECT:

POLICY AND PROCEDURE

Searches

Custody Operations

POLICY:

It is the policy of the San Francisco Sheriffs Department to conduct searches that meet the requirements of federal and state law while maximizing security injail facilities and the safety of all persons in the county jail system. Under no circumstances shall searches be conducted as a punitive measure.

PURPOSE: To comply with state and federal laws and case decisions while maintaining the safety of prisoners, staff and jail facilities.

DEFINITIONS: Contraband: Weapons, drugs, or other items that pose a threat to the safety and security of the jail or persons in the jail. In the jail, contraband also includes any item or article not issued by ajail facility, purchased from the commissary, purchased through other approved channels, or approved by the Custody Division Commander or designee. Any authorized items found altered in any way, except for sharpened pencils, will also be considered contraband.

Non-intrusive Sensor and Scanning Device Search: A search conducted on a clothed person using either a hand-held or walk-through mechanical device or metal detector or other non-intrusive detection device.

Pat Search: A search consisting of a pat down or body frisk of a clothed person, including examination of pockets, shoes and socks. A pat search may include the removal and examination of outer clothing including, but not limited to, hats, wigs, coats, jackets, and multiple layers of bulky clothing.

Physical Body Cavity Search: A physical intrusion into a body cavity, such as the mouth, stomach, rectum, or vagina, for the purpose of discovering any object concealed in the body cavity. This type of search always requires a valid search warrant and must be conducted by medical personnel.

Custody Operations : E-16

Page 1 of8

Reasonable Suspicion: A degree of knowledge based on specific and articulable facts sufficient to induce a cautious and reasonable officer to believe that an individual is in possession of a weapon or other items of contraband. A "hunch", without more, is insufficient. A fact or observation, giving rise to a reasonable inference, is necessary. Reasonable suspicion includes, but is not limited to:
1. Physical observations or information received from a reliable source that indicate that a person is concealing contraband on their person.
Security Search: A search focused on certain areas of the jail facility, including the bunk, clothing, locker, cell, tank, dormitory, or pod, or any other area within the jail facility or on the jail grounds. Prisoners located in, leaving, or returning to an area where a security search is being conducted may also be subject to search.
Strip Search: A search that requires a person to remove or arrange some or all of his or her clothing so as to permit a visual inspection of the breasts, buttocks or genitalia of such person. A strip search may also include a visual inspection of the person's body cavities.
PROCEDURE
I. Pat Searches and Non-Intrusive Sensor and Scanning Device Searches
A. Personal Privacy:
1. Pat searches should be conducted by deputies of the same sex as the person to be searched, whenever possible.
2. Pat searches of transgender persons should be conducted by a deputy with the same genitalia.
B. When Such Searches Are Conducted:
1. At intake, the transporting officer will conduct a pat search and a nonintrusive sensor and scanning device search prior to the booking process.
2. Once the booking has been completed, any person not qualifying for a strip searched will be pat searched and scanned with a non-intrusive sensor and/or a scanning device as part of the dressing in process prior to housing in a jail facility.
3. Pat searches or searches by non-intrusive sensor and/or scanning devices may be conducted on prisoners at any time.
C. Searches of Civilians
1. All civilians who enter the jail facility to visit, conduct interviews or provide any service that requires entering a jail facility may be subject to a non-intrusive sensor and/or scanning device search.

Custody Operations : E-16

Page 2 of8

2. All packages, brief cases, purses, or other containers will be searched for contraband prior to entering the jail.
3. A pat search may be conducted if approved by the Watch Commander and when a deputy has reasonable suspicion a civilian may possess contraband.
4. The approved pat search will be conducted by a staff person of the same sex, in a private location, and in a professional manner.
S. The civilian to be searched must be advised of his or her right to refuse the pat search and leave the jail facility and this must be documented in any report of the incident.
6. If the civilian refuses the pat search, the person will be escorted out of the jail and off the jail grounds and will be denied future access to the jail.
7. An Incident Report must be completed any time a pat search is conducted on a civilian and/or whenever a civilian refuses such a search.
8. The report must include the reasonable suspicion articulated and any contraband found on the civilian.
9. Any criminal conduct by civilians shall result in arrest for criminal prosecution.
D. Searches of Employees
1. All employees entering a jail facility may be subject to a non-intrusive sensor and/or scanning device search.
2. All packages, brief cases, purses, or other containers may be searched for contraband prior to entering the jail.
3. All employees may be subject to a non-intrusive sensor and scanning device search before entering ajail facility.
4. A pat search or strip search of an employee shall be done only with the permission of the Sheriff, Undersheriff or Assistant Sheriff.
a. There must be articulable reasonable suspicion the employee is bringing contraband into a jail facility to request permission for either type of search.
b. The Investigative Services Unit will be contacted when a request to perform either type of search of an employee is made to ensure such action will not interfere with an open investigation.
II. Permissible Strip Searches
A. Prior to Intake/Booking
1. A prisoner may be strip searched prior to booking only if:
a. There is reasonable suspicion and supervisor approval on the Strip Search Authorization Form prior to the search; or

Custody Operations : E-16

Page 3 of8

b. Supervisor approval is not required if the prisoner:
1. Is charged with a crime of drugs, (except when arrested for violation of Health and Safety Code 11550 only), weapons andlor violence; or
2. Has been convicted or arrested within the last 5 years for drugs, (except when arrested for violation of Health and Safety Code 11550 only), weapons andlor violence, as documented in the criminal history information system; or
3. Is charged under California Penal Code Section 3056 or booked with a State Parole hold; or
4. Is charged under California Penal Code Section 1203.2; or 5. Is in the custody of another agency and is booked into the jail
for safekeeping, including a prisoner booked on a U.S. Marshall hold.
B. At IntakelBooking
1. Prisoners may be strip searched at the time of booking only if:
a. There is articulable reasonable suspicion and supervisor approval on the Strip Search Authorization Form prior to the strip search; or
b. The prisoner is:
1. Is charged with a crime of drugs, (except when arrested for violation of Health and Safety Code 11550 only), weapons andlor violence; or
2. Has been convicted or arrested within the last 5 years for drugs, (except when arrested for violation of Health and Safety Code 11550 only), weapons andlor violence, as documented in the criminal history information system; or
3. Is charged under California Penal Code Section 3056 or booked with a State Parole hold; or
4. Is charged under California Penal Code Section 1203.2; or 5. Is in the custody of another agency and is booked into the jail
for safekeeping, including a prisoner booked on a U.S. Marshall hold.
C. Pre-Sentenced Booked Prisoners
1. Pre-sentenced booked prisoners may be strip searched at any time if there is reasonable suspicion and supervisor approval on the Strip Search Authorization Form prior to the strip search.
2. Prior supervisor approval for the strip search is not required if the prisoner:

Custody Operations : E-16

Page 4 of8

a. Was strip searched at booking but a legitimate reason such as a security search of their housing unit exists to conduct another search; or
b. Has been found to possess contraband during a prior search, as documented on the housing card; or
c. Is returning from a work detail, a court-ordered pass, a hospital appointment, court appearance, contact visits, interviews, or other activities occurring outside their assigned housing unit.
D. Sentenced Prisoners
1. Sentenced prisoners may be strip searched at any time as part of a security search.
E. Prisoners shall not be strip searched as part of their final discharge and release to the community.
F. The circumstances under which strip searches are permitted are set forth in the chart on page 8 of this policy.
G. Sheriff's personnel may not conduct physical body cavity searches under any circumstances. All physical body cavity searches require a valid search warrant and must be conducted by medical personnel.
III. Search Conditions
A. Sheriffs personnel will take all reasonable measures to minimize the extent to which strip searches intrude on a prisoner's privacy.
1. All strip searches shall be conducted in a private location, such that persons not participating in the search cannot observe the person being searched.
2. All Sheriffs personnel present at a strip search shall be of the same sex as the person being searched.
3. Transgender persons shall be searched by personnel with the same genitalia as the transgender person.
4. Sheriffs personnel shall not touch the breasts, buttocks, genitalia, or body cavities ofthe person being searched.
5. The prisoner will be supplied with jail clothing immediately after the search.
B. Whenever a prisoner who meets the criteria for a strip search is non-compliant, the deputy will notify the on duty supervisor immediately.
1. If the non-compliant prisoner poses no significant threat to the safety of himself or herself, other prisoners, Sheriff s staff, and/or other civilian workers in the area, the prisoner will be placed in a holding cell to calm down.

Custody Operations : E-16

Page 5 of8

2. The Watch Commander will make every effort to avoid having to order the forcible removal of clothing from a non-compliant prisoner.
3. If a prisoner continues to be non-compliant with the order for a strip search and is nearing 16 hours in the intake jail, the Facility Commander should consult with the Custody Division Commander to determine at what point the strip search will be conducted with or without compliance from the prisoner.
4. If the non-compliant prisoner poses a significant threat to the safety of himself or herself, other prisoners, Sheriffs staff and/or other civilian workers in the area, the supervisor will instruct staff to forcibly remove the prisoner's clothing so that the search can be completed. The force used should be no more than what is required to accomplish the search.
5. The supervisor will submit an Incident Report identifying the prisoner involved, the action taken and, if forcible removal of clothing is required, the articulable reason the prisoner posed a significant threat of danger.

C. All strip searches conducted shall be recorded on the Strip Search Authorization Form and shall be kept on file at the jail facility for one year. After one year, the records should be put into storage and retained in accordance with the department records storage policy.
D. Any contraband found while conducting a strip search shall be documented on the Strip Search Authorization Form.
E. If the quantity or type of contraband found supports additional criminal charges, the officer conducting the search will complete an Incident Report and attach a copy of the Strip Search Authorization Form to the report. The Investigative Services Unit shall be contacted about the incident.

VI. Security Searches

A. Security searches are conducted in jail facilities, jail grounds, and jail vehicles to

detect contraband and illegal activity.

B. Security searches may be conducted randomly at any time or may be conducted

based on information that contraband may be found.

C. Prisoners will be required to leave the area being searched, including their cell,

room, or bunk areas prior to Sheriffs staff entering and searching the area.

D. Prisoners returning to the area of the security search are subject to a pat search

and/or a non-intrusive search conducted using either a hand-held or walk-through

mechanical device or metal detector or other non-intrusive detection device.

E. Prisoners returning to the area of the security search may be strip searched if there

is articulable reasonable suspicion and supervisor approval on the Strip Search

Authorization Form.

.

F. Any contraband found while conducting a strip search shall be documented on the

Strip Search Authorization Form.

G. If the quantity or type of contraband found supports additional criminal charges,

the officer conducting the search will complete an Incident Report and attach a

Custody Operations: E-16

Page 6 of8

copy of the Strip Search Authorization Form to the report. The Investigative Services Unit shall be contacted about the incident. F. Any contraband found in areas of common prisoner space will be logged in a Contraband Log which will include the date and time of the security search, the location the contraband was found, what type of contraband was found, who found the contraband, and how the contraband was disposed of.
IV. Disposition of Contraband
A. Contraband items which are prohibited by law will be handled as follows:
1. The reporting deputy will confiscate the items. 2. If the contraband is not needed for evidence, the item(s) will be disposed
of in a locked contraband disposal container to be maintained at each jail facility. 3. If the contraband is needed for evidence and criminal charges are being considered, the reporting deputy or supervisor should contact the Investigative Services Unit for instructions.
B. Contraband items which are not prohibited by law will be handled as follows:
1. The reporting deputy will confiscate the items. 2. If the contraband is in excess ofjail issued items, the excess will be
returned to its proper location. 3. The reporting deputy will log the contraband information in the
Contraband Log. 4. The reporting deputy may also complete a Notice of Rule Violation if
the contraband is in the possession of or in an area under the control of a specific prisoner.

Custody Operations : E-16

Page 7 of8

PERMISSIBLE STRIP SEARCH GUIDELINES

PRIOR TO INTAKEIBOOKING
1. There is reasonable suspicion and supervisor approval on the Strip Search Authorization Form prior to the search; or 2. Prior supervisor approval is not required if the prisoner:
• is charged with a crime of drugs, (except when arrested for violation ofH&S 115500nly),weapons and/or violence; or
• has been convicted or arrested with the last 5 years for drugs, (except when arrested for violation of H&S 11550 only), weapons and/or violence as documented in the criminal history information system; or
• is charged under PC 3056 or booked with a State Parole hold; or
• is charged under PC 1203.2; or
• is in the custody of another agency and is booked into the jail for safekeeping, including a person booked on a U.S. Marshall hold.

AT INTAKEIBOOKING
1. There is reasonable suspicion and supervisor approval on the Strip Search Authorization Form prior to the search; or 2. Prior supervisor approval is not required if the prisoner:
• is charged with a crime of drugs, (except when arrested for violation ofH&S 115500nly),weapons and/or violence; or
• has been convicted or arrested with the last 5 years for drugs, (except when arrested for violation ofH&S 11550 only), weapons and/or violence as documented in the criminal history information system; or
• is charged under PC 3056 or booked with a State Parole hold; or
• is charged under PC 1203.2; or
• is in the custody of another agency and is booked into the jail for safekeeping, including a person booked on a U.S. Marshall hold.

PRE-SENTENCED BOOKED
PRISONERS
1. There is reasonable suspicion and supervisor approval on the Strip Search Authorization Form prior to the search; or 2. Prior supervisor approval is not required for any prisoner who:
• was strip searched at booking but a legitimate reason such as a security search of their housing unit exists to conduct another search; or
• has been found to possess contraband during a prior search, as documented on the housing card; or
• is returning from a work detail, courtordered pass, hospital appointment, court appearance, contact visits, interviews, or other activities occurring outside their assigned housing unit.

SENTENCED PRISONERS
Sentenced prisoners may be searched at any time as part of a security search.
Prisoners shall not be strip searched as part of their final discharge and release to the community.

Custody Operations : E-16

Page 8 of8

()
EXHIBITB

SAN FRANCISCO SHERIFF'S DEPARTMENT

Policy / Procedure # Date Issued:

E-05
Date Revised:

SUBJECT:

POLICY AND PROCEDURE

Chapter.
Safety Cell Use

Custody Operations

POLICY:

It is the policy of the San Francisco Sheriffs Department to use safety cells only when necessary to hold those prisoners who display behavior which reveals an intent to cause physical harm to self or others.

PURPOSE: To provide procedures to comply with Title 15, Section 1055.

DEFINITIONS: Combative: A prisoner whose behavior requires physical restraint by one or more deputies to prevent harm to himself or herself, to staff and/or to other prisoners.

Danger to Self: A prisoner making overt gestures to harm himself or herself or who articulates a strong desire to harm himself or herself.

Danger to Others: A prisoner whose behavior is likely to cause harm to staff or other pnsoners.

Jail Health Services Staff: The jail medical and j ail psychiatric staff providing health Services in the jail system.

Safety Cell: A padded single cell

PROCEDURE:

I. General

A. A prisoner will be placed in a safety cell only with the approval of the Facility Commander, the Facility Watch Commander or a designated physician as delegated by the Sheriff.
B. Safety cells may be used only under the following circumstances:

Page 1 of5

Safety Cell Use
1. When a prisoner is physically combative or otherwise presents an imminent danger to others.
2. When a prisoner is a danger to self, as determined by actions or words, including, but not limited to, physical or mental impairment to the point of falling down, banging hislher head against the wall, making suicidal gestures or threatening to commit suicide.
3. When there is reasonable suspicion the prisoner has ingested an injurycausing item.
4. When a prisoner requests such a placement. 5. When Jail Health Services staff recommends a safety cell placement and
the Watch Commander concurs after reviewing the basis for the Jail Health Service recommendation.
C. The safety cell shall not be used for prisoners who only refuse to be strip searched or refuse other orders and do not otherwise meet the criteria for safety cell placement above.
D. Only Jail Psychiatric Services staffmay determine a prisoner to be gravely disabled.
E. In no case shall the safety cell be used for punishment or as a substitute for treatment.
II. Safety Cell Placement
A. A supervisor must be present during the placement of a prisoner into the safety cell.
B. If a prisoner is cooperative, the prisoner should be allowed to walk to the safety cell.
C. If the prisoner refuses to walk, the restraint chair or some other mobile means, such as a gurney or wheelchair, should be considered and used, if appropriate.
D. Deputies may carry the prisoner as a last resort and in a manner that minimizes injury to staff and prisoner.
E. If it is necessary to use force, the degree of force will be within the parameters set by the Department's "Use of Force" policy.
F. The reason for the safety cell placement will determine whether the prisoner is stripped of clothing.
1. In safety cell placements that result because the prisoner is a danger to self or at hislher request, the prisoner will be required to remove all clothing and a strip search will be conducted to ensure the prisoner does not have contraband that poses a threat to hislher safety. The prisoner will immediately be given a safety cell garment and/or safety cell blanket.
2. Prisoners placed in a safety cell after being determined to be gravely disabled by Jail Psychiatric staff will not be strip searched unless Jail Psychiatric staff believe the person may be a danger to self. Jail
Page 2 of 5

Safety Cell Use
Psychiatric staffwill document the reason for the strip search on the Strip Search Authorization form and in their psychiatric records. 3. In safety cell placements that result because a prisoner is a danger to others, the prisoner will be pat searched before being placed in the safety cell. Clothing will not be removed nor will a strip search be conducted unless the supervisor approving the placement can articulate reasonable suspicion that the prisoner has contraband hidden that poses a risk to prisoners, staff, or self. 4. The approving supervisor must document the reasonable suspicion justifying the strip search and complete the Strip Search Authorization form. The form shall be kept on file at the jail facility for one year. After one year, the records should be put into storage and retained in accordance with the department records storage policy. 5. Any contraband found must also be documented in an Incident Report to be attached to the Safety Cell Observation form.
G. Once the prisoner is in the safety cell, the deputy responsible for the placement will provide the prisoner with the following:
1. If in the safety cell as a danger to self or at hislher own request, the prisoner will be given a safety cell garment and/or safety cell blanket immediately following the search for contraband.
2. For all other safety cell placements, the prisoner may be given an exchange ofjail clothing or a safety cell garment and/or a safety blanket immediately following the placement, ifnecessary.
3. The actual time when items were provided will be documented on the Safety Cell Observation form.
H. The deputy placing the prisoner in the safety cell is responsible for securing and proper storage of all personal property taken from the prisoner.
I. A prisoner may remain restrained, with handcuffs, waist chains and/or leg irons, as necessary, while in the safety cell to prevent self-inflicted injury. Under no circumstance will a prisoner remain in restraints in the safety cell for more than one hour.
J. Jail Health Services staff will be notified of the safety cell placement immediately and the person notified and the time of notification will be recorded on the Safety Cell Observation form.
K. Jail Health Services staff will assess the prisoner as soon as possible, but no more than 30 minutes after safety cell placement.
III. Observation of Prisoner in the Safety Cell
A. The deputy who placed the prisoner into the safety cell will describe on the Safety Cell Observation form the specific behavior observed that led to the placement.
Page 3 of5

Safety Cell Use
B. The supervisor will insure that the Safety Cell Observation form is posted on the outside of the safety cell and that all visual observation checks of the prisoner are recorded.
1. The Safety Cell Observation form will be completed for all prisoners placed in safety cells regardless of the amount of time the prisoner is in the safety cell.
2. The front side of the Safety Cell Observation form is to be completed as detailed on the form.
3. The backside of the form is to be used for the entire time the prisoner is in the safety cell.
4. Staff will enter legible initials, star number and the observed behavior during a security check.
C. Visual observations conducted by deputy sheriffs are required as follows and must be noted on the Safety Cell Observation form:
1. A deputy must directly observe the prisoner a minimum of two times in a thirty-minute period.
2. The actual time and initials and star number of the deputy completing the visual observation check must be legible and noted on the form.
3. The specific behavior of the prisoner observed during the check must be recorded on the form.
4. When a prisoner in the safety cell appears to be sleeping, the visual observation check must include a verbal response to verbal commands at least once every thirty (30) minutes.
D. Water will be offered at least once every two hours to prisoners in safety cells, including those safety cells with sinks. The acceptance or refusal of water will be documented on the Safety Cell Observation form.
E. Food will be offered at least once each shift to prisoners in the safety cells and the acceptance or refusal of food will be documented on the Safety Cell Observation form.
F. Toilet paper will be provided when requested and toilets will be flushed at the request of the prisoner and/or at least twice every 8 hours. Both the provision of toilet paper and flushing of the toilet will be documented on the Safety Cell Observation form.
G. Female prisoners will receive feminine hygiene products upon request when not a danger to self or when otherwise directed by Jail Psychiatric Services staff.
H. Jail Health staff are required to perform checks consistent with their policy and procedure.
Page 4 of5

Safety Cell Use
IV. Length of Stay in the Safety Cell
A. The Watch Commander will conduct a visual observation check on any prisoner in a safety cell at the beginning of the watch, and at least once every 8 hours after the start of the watch when assigned to an alternative shift.
1. If continued retention beyond eight hours is warranted, the Watch Commander will document the reason for the continued retention
2. The Watch Commander's visual observation will include response to verbal commands and movement of extremities.
B. Jail Psychiatric staffwill assess the initial safety cell placement as soon as possible but at least within 24 hours of placement.
C. Te prisoner will be medically cleared by Jail Health Services staff for continued retention at least once within 24 hours following the placement.
D. The length of stay in a safety cell will not exceed 24 hours. E. If the length of stay is nearing the 24 hour time limit and San Francisco General
Hospital (SFGH) Ward 7L does not have bed space available, the prisoner will be transported to Psychiatric Emergency Services (PES) at SFGH. F. When a prisoner in the Sheriffs custody must be transported to PES at SFGH, jail staff will submit an Incident Report to the Custody Division Commander. G. When the prisoner meets 5150 criteria based on the Jail Psychiatric staff assessment, and still has criminal charges pending, the prisoner cannot be removed from the safety cell until Jail Psychiatric staff determine and document on the Observation form that the prisoner no longer meets 5150 criteria. H. When a prisoner meets 5150 criteria based on the Jail Psychiatric assessment and no longer has criminal charges pending or has been granted a lawful release, the Watch Commander will assign the appropriate staff to transport the prisoner to PES at SFGH. I. When the prisoner in the safety cell no longer meets 5150 criteria as determined and documented by jail medical staff or jail psychiatric staff, the custody supervisor will remove the prisoner from the safety cell to appropriate housing as soon as the prisoner no longer poses a threat to self, others or no longer displays violent behavior and appropriate housing is available.
V. Safety Cell Maintenance
A. The safety cell blankets and safety cell garment will be thoroughly cleaned, disinfected and dried after each use.
1. A supply of clean items will be maintained at all times. 2. All food, waste, and water will be removed from the safety cell. 3. The cell will be cleaned immediately so as to be available for use when
needed. 4. If a safety cell becomes unsanitary while occupied, the prisoner will be
removed to another safety cell when it is safe to do so.
Page 5 of5

 
 Case 3:03-cv-01840-CRB Document 62-1 Filed 01/22/2004 Page 1 of 16

1 DENNIS J. HERRERA, State Bar #139669

City Attorney

2 JOANNE HOEPER, State Bar #114961

Chief Trial Attorney

3 INGRID M. EVANS, State Bar # 179094

DAVID B. NEWDORF, State Bar #172960

4 Deputy City Attorneys

Fox Plaza

5 1390 Market Street, Sixth Floor

San Francisco, California 94102-5408

6 Telephone: (415) 554-3884

Facsimile: (415) 554-3837

7 E-Mail:

ingrid.evans@sfgov.org

8 Attorneys for Defendants CITY AND COUNTY OF SAN FRANCISCO,
9 SAN FRANCISCO SHERIFF'S DEPARTMENT and SAN FRANCISCO COUNTY SHERIFF MICHAEL HENNESSEY
10

11

UNITED STATES DISTRICT COURT

12

NORTHERN DISTRICT OF CALIFORNIA

13 MARY BULL, JONAH ZERN, and all others similarly situated,
14
Plaintiffs, 15
vs. 16
CITY AND COUNTY OF SAN 17 FRANCISCO, SAN FRANCISCO
SHERIFF'S DEPARTMENT, SAN 18 FRANCISCO COUNTY SHERIFF
MICHAEL HENNESSEY, IN HIS 19 INDIVIDUAL AND OFFICIAL
CAPACITY, AND SAN FRANCISCO 20 COUNTY SHERIFF'S DEPUTIES DOES
1 THROUGH 150, 21
Defendants. 22

Case No. C03-1840 CRB
DEFENDANTS’ ANSWER TO PLAINTIFFS' FIRST AMENDED CLASS ACTION COMPLAINT AND DEMAND FOR JURY TRIAL

23

24

Come now defendants City and County of San Francisco and San Francisco County

25 Sheriff Michael Hennessey, in his official capacity (collectively "answering defendants" or

26 "defendants") (San Francisco Sheriff's Department was erroneously sued and is a subdivision of

27 the City and County of San Francisco) and answer Plaintiffs' First Amended Class Action

28 Complaint and Demand for Jury Trial as follows:

Answer to First Amended Complaint

1

USDC No. C03-1480 CRB

N:\LIT\LI2003\031697\00219588.DOC

Case 3:03-cv-01840-CRB Document 62-1 Filed 01/22/2004 Page 2 of 16

1

1. The allegations in the Introduction constitute legal conclusions and therefore do not

2

require a response.

3

2. The allegations of paragraph 1 constitute legal conclusions and therefore do not

4

require a response.

5

3. The allegations of paragraph 2 constitute legal conclusions and therefore do not

6

require a response.

7

4. The allegations of paragraph 3 constitute legal conclusions and therefore do not

8

require a response.

9

5. These answering defendants admit that Plaintiffs Mary Bull, Jonah Zern, Lisa

10

Giampaoli, Marcy Corneau, Alexis Bronson, Micky Mangosing, Charli Johnson,

11

Leigh Fleming and Laura Timbrook were arrested during said time period. These

12

answering defendants deny the remaining allegations contained in paragraph 4.

13

6. These answering defendants deny the allegations contained in paragraph 5.

14

7. These answering defendants admit the allegations contained in paragraph 6 except

15

that Sheriff Michael Hennessey was at all relevant times acting in his official

16

capacity.

17

8. These answering deny the allegations contained in paragraph 7. Defendants are

18

without sufficient information to assess paragraph no. 7 because plaintiffs have

19

failed to identify San Francisco County Sheriff Deputies.

20

9. These answering defendants are without sufficient knowledge or information to

21

form a belief as to the allegations contained in paragraphs 8, and on that basis

22

denies each and every such allegation.

23

10. These answering defendants admit that the City and County of San Francisco is

24

political sub-division of the State of California. These answering defendants are

25

without sufficient knowledge or information to form a belief as to truth of the

26

allegations contained in paragraphs 9, and on that basis denies each and every such

27

allegation.

28

Answer to First Amended Complaint

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1

11. These answering defendants are without sufficient knowledge or information to

2

form a belief as to truth of the allegations contained in paragraphs 10, and on that

3

basis denies each and every such allegation.

4

12. These answering defendants deny the allegations contained in paragraph 11 of the

5

complaint.

6

13. These answering defendants are without sufficient knowledge or information to

7

form a belief as to truth of the allegations contained in paragraphs 12, and on that

8

basis denies each and every such allegation.

9

14. These answering defendants deny the allegations contained in paragraph 13 of the

10

complaint.

11

15. These answering defendants deny the allegations contained in paragraph 14 of the

12

complaint.

13

16. These answering defendants deny the allegations contained in paragraph 15 of the

14

complaint.

15

17. These answering defendants deny the allegations contained in paragraph 16 of the

16

complaint.

17

18. These answering defendants deny the allegations contained in paragraph 17 of the

18

complaint.

19

19. These answering defendants deny the allegations contained in paragraph 18 of the

20

complaint.

21

20. These answering defendants deny the allegations contained in paragraph 19 of the

22

complaint.

23

21. These answering defendants deny the allegations contained in paragraph 20 of the

24

complaint.

25

22. These answering defendants deny the allegations contained in paragraph 21 of the

26

complaint.

27

23. These answering defendants deny the allegations contained in paragraph 22 of the

28

complaint.

Answer to First Amended Complaint

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1

24. These answering defendants deny the allegations contained in paragraph 23 of the

2

complaint.

3

25. These answering defendants deny the allegations contained in paragraph 24 of the

4

complaint.

5

26. These answering defendants deny the allegations contained in paragraph 25 of the

6

complaint.

7

27. These answering defendants deny the allegations contained in paragraph 26 of the

8

complaint.

9

28. These answering defendants deny the allegations contained in paragraph 27 of the

10

complaint.

11

29. These answering defendants deny the allegations contained in paragraph 28 of the

12

complaint.

13

30. These answering defendants deny the allegations contained in paragraph 29 of the

14

complaint.

15

31. These answering defendants admit that Plaintiff Mary Bull filed a government

16

claim and that it was denied on April 7, 2003. The remaining allegations contained

17

in paragraph 20 of the complaint are denied.

18

32. These answering defendants deny the allegations contained in paragraph 31 of the

19

complaint.

20

33. These answering defendants deny the allegations of paragraph 32 of the complaint.

21

34. These answering defendants deny the allegations of paragraph 33 of the complaint.

22

35. These answering defendants deny the allegations of paragraph 34 of the complaint.

23

36. The allegations of paragraph 35 constitute a legal conclusions and therefore do not

24

require a response. To the extent a response is required, these answering

25

defendants deny each and every allegation.

26

37. The allegations of paragraph 36 constitute a legal conclusions and therefore do not

27

require a response. To the extent a response is required, these answering

28

defendants deny each and every allegation.

Answer to First Amended Complaint

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1

38. With respect to the allegations contained in paragraph 37, these answering

2

defendants deny that plaintiffs have been damaged in any sum or sums, or

3

otherwise, or at all, by reason of any act, omission or premises of these defendants.

4

The remaining allegations constitute legal conclusions and therefore do not require

5

a response. To the extent a response is required, these answering defendants deny

6

each and every allegation.

7

39. With respect to the allegations contained in paragraph 38, these answering

8

defendants deny that plaintiffs have been damaged in any sum or sums, or

9

otherwise, or at all, by reason of any act, omission or premises of these defendants.

10

The remaining allegations constitute legal conclusions and therefore do not require

11

a response. To the extent a response is required, these answering defendants deny

12

each and every allegation.

13

40. These answering defendants deny the allegations of paragraph 39 of the complaint.

14

41. These answering defendants deny the allegations of paragraph 40 of the complaint.

15

42. The allegations contained in paragraph 41 constitute legal conclusions and

16

therefore do not require a response.

17

43. The allegations contained in paragraph 42 constitute legal conclusions and

18

therefore do not require a response.

19

44. The allegations contained in paragraph 43 constitute legal conclusions and

20

therefore do not require a response.

21

45. The allegations contained in paragraph 44 constitute legal conclusions and

22

therefore do not require a response.

23

46. These answering defendants deny the allegations of paragraph 45 of the complaint.

24

47. These answering defendants deny the allegations of paragraph 46 of the complaint.

25

48. These answering defendants deny the allegations of paragraph 47 of the complaint.

26

49. These answering defendants deny the allegations of paragraph 48 of the complaint.

27

50. These answering defendants deny the allegations of paragraph 49 of the complaint.

28

Answer to First Amended Complaint

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1

51. The allegations contained in paragraph 50 constitute legal conclusions and

2

therefore do not require a response.

3

52. The allegations contained in paragraph 51 constitute legal conclusions and

4

therefore do not require a response.

5

53. The allegations contained in paragraph 52 constitute legal conclusions and

6

therefore do not require a response.

7

54. The allegations contained in paragraph 53 constitute legal conclusions and

8

therefore do not require a response.

9

55. The allegations contained in paragraph 54 constitute legal conclusions and

10

therefore do not require a response.

11

56. These answering defendants deny the allegations of paragraph 55 of the complaint.

12

57. The allegations contained in paragraph 56 constitute legal conclusions and

13

therefore do not require a response.

14

58. These answering defendants deny the allegations of paragraph 57 of the complaint.

15

59. These answering defendants deny the allegations of paragraph 58 of the complaint.

16

60. These answering defendants deny the allegations of paragraph 59 of the complaint.

17

61. These answering defendants deny the allegations of paragraph 60 of the complaint.

18

62. These answering defendants deny the allegations of paragraph 61 of the complaint.

19

SEPARATE AFFIRMATIVE DEFENSES

20

(Failure to State a Claim)

21

Defendants allege that the complaint fails to state facts sufficient to constitute a cause of

22 action against the defendants. 23 24

AFFIRMATIVE DEFENSE (Third Party Immunity)

25

Defendants are a public public entity and/or employee and alleges the complaint and each

26 and every cause of action therein is barred by the doctrine of third party immunity set forth in

27 section 820.8 of the Government Code.

28

Answer to First Amended Complaint

6

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1

AFFIRMATIVE DEFENSE

2

(Comparative Negligence)

3

Defendants allege that plaintiff was negligent in and about the activities alleged in the

4 complaint; that said negligence contributed and was a proximate cause of plaintiff’s alleged

5 injuries and damages, if any, or was the sole cause thereof; and that if plaintiff is entitled to

6 recover damages against defendants, then defendants pray that the recovery be diminished or

7 extinguished by reason of the negligence of plaintiff in proportion to the degree of fault

8 attributable to plaintiff.

9

AFFIRMATIVE DEFENSE

10

(Discretionary Immunity)

11

Defendants are a public entity and/or public employee and alleges the complaint and each

12 and every cause of action therein is barred by the doctrine of discretionary immunity set forth in

13 section 820.2 of the Government Code.

14

AFFIRMATIVE DEFENSE

15

(Estoppel)

16

By reason of plaintiff’s own acts and omissions, plaintiff is estopped from seeking any

17 recovery from defendants by reason of the allegations set forth in the complaint.

18

AFFIRMATIVE DEFENSE

19

(Justified Use of Force)

20

The complaint and each cause of action therein is barred because the use of force against

21 the plaintiff by defendants and the employees of the City, if any, was privileged and justified.

22

AFFIRMATIVE DEFENSE

23

(Justified Incarceration)

24

The complaint and each cause of action therein is barred because defendants were legally

25 justified to detain, arrest and incarcerate the plaintiff.

26

27

28

Answer to First Amended Complaint

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1

AFFIRMATIVE DEFENSE

2

(Immunity)

3

Defendants allege the provisions of the California Tort Claims Act of the California

4 Government Code (Government Code §810 et seq.) as a measure of the duty of the City and

5 County of San Francisco and its employees.

6

AFFIRMATIVE DEFENSE

7

(Justification)

8

Defendants allege that the City and its employees had legal justification for all of their

9 actions and omissions and therefore the complaint and each and every cause of action therein is

10 barred.

11

AFFIRMATIVE DEFENSE

12

(Failure to Mitigate Damages)

13

Defendants allege that the complaint and each and every cause of action there in is barred

14 because plaintiff failed to mitigate damages.

15

AFFIRMATIVE DEFENSE

16

(No Monell Liability)

17

The complaint fails to state a federal civil rights claim against the defendants under the

18 doctrine announced in Monell v. Department of Social Services, 436 U.S. 658 (1978).

19

AFFIRMATIVE DEFENSE

20

(Denial of Damages)

21

Defendants deny that plaintiff has been damaged in any sum or sums, or otherwise, or at

22 all, by reason of any act or omission by defendants.

23

AFFIRMATIVE DEFENSE

24

(Qualified Immunity)

25

As a separate defense, defendantss including the employees of the City including Sheriff

26 Michael Hennessey and Sheriff deputies, are immune from any liability and protected against the

27 burden of litigation under the doctrine of qualified immunity and the common law immunities

28 protecting peace officers, prosecutors and public officials.

Answer to First Amended Complaint

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1

AFFIRMATIVE DEFENSE

2

(Immunity from Exemplary Damages)

3

Defendants are a public entity and/or employees of a public entity and therefore immune

4 from liability for exemplary damages pursuant to provisions of section 818 of the California

5 Government Code.

6

AFFIRMATIVE DEFENSE

7

(No Respondeat Superior Liability)

8

The City alleges that it is not liable for any acts or omissions of its employees which

9 occurred outside of those employees’ scope of employment with the City.

10

AFFIRMATIVE DEFENSE

11

(Failure to Comply With Tort Claims Act)

12

Defendants allege the plaintiff failed to comply with the requirements of the California

13 Tort Claims Act of the California Government Code and therefore all claims of the plaintiff are

14 barred.

15

AFFIRMATIVE DEFENSE

16

(Lack of Actual Knowledge)

17

Plaintiff has insufficient evidence to prove that defendants had actual knowledge of a

18 serious risk of harm to plaintiff and disregarded such knowledge.

19

AFFIRMATIVE DEFENSE)

20

(Good Faith Immunity)

21

Defendants plead that the was acting without malice in good faith at all relevant times and

22 therefore enjoy good faith immunity from suit.

23

AFFIRMATIVE DEFENSE

24

(Government Code §820.4)

25

California Government Code Section 820.4 provides that a public employee is not liable for

26 injuries inflicted by his or her acts or omissions committed "in the execution or enforcement of any

27 law" while exercising due care.

28

Answer to First Amended Complaint

9

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AFFIRMATIVE DEFENSE 1
(Sheriff is not a "person" under 42 USC §1983) 2

3

Defendants allege that he is not liable under 42 U.S.C. § 1983 because sheriffs are not

4 "persons" within the meaning of section 1.

5

AFFIRMATIVE DEFENSE

6

(Statute Of Limitations)

7

The complaint and each cause of action therein is barred by the applicable statutes of

8 limitation including without limitation Government Code section 945.6 and California Code of

9 Civil Procedure Sections 335 et seq. and Chapter 3 of Title 2 of the California Code of Civil

10 Procedure.

11

AFFIRMATIVE DEFENSE

12

(Assumption Of The Risk)

13

Plaintiff had full knowledge of the risk involved in the activity in which plaintiff was

14 engaged at the time of the occurrence of the incident set forth in the complaint. Plaintiff

15 voluntarily assumed all the risks incident to the activity engaged in at the time and place

16 mentioned in the complaint, and the loss or damage, if any, sustained by plaintiff was caused by

17 those risks.

18

AFFIRMATIVE DEFENSE

19

(Statutory Immunity)

20

The City and its employees are immune from all liability alleged in the complaint and

21 each and every cause of action therein pursuant to Government Code Sections 815(b); 815.2(b);

22 815.4; 818.4; 818.6, 818.7; 818.8; 820(b); 820.2; 820.4; 820.6; 820.8; 821; 821.2; 821.4; 821.6;

23 821.8; 822; 822.2; 830.2; 830.4; 830.6; 830.8; 830.9; 831; 831.2; 831.25; 831.3; 831.4; 831.5;

24 831.6; 831.7; 831.8; 835.4; 840.6; 844.6; 845; 845.2; 845.4; 845.6; 845.8; 846; 850; 850.2;

25 850.4; 854.8; 855; 855.2; 855.4; 855.6; 855.8; 856; 856.2; 856.4; California Vehicle Code

26 Sections 16004 and 17004.7; and related provisions of these code sections and interpretative case

27 law.

28

Answer to First Amended Complaint

10

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1

AFFIRMATIVE DEFENSE

2

(Res Judicata and Claim Splitting)

3

The complaint and each and every cause of action therein is barred by res judicata and the

4 case law prohibiting a plaintiffs from “splitting” claims or causes of action. Ferraro v. Southern

5 Cal. Gas Co., 102 Cal.App.3d 33, 41 (1980).

6

AFFIRMATIVE DEFENSE

7

(Waiver)

8

By conduct, representations and omissions, plaintiff has waived, relinquished and/or

9 abandoned any claim for relief against these defendants respecting the matters which are the

10 subject of the complaint.

11

AFFIRMATIVE DEFENSE

12

(Laches)

13

Plaintiff has unnecessarily delayed in protecting the right or rights asserted and has

14 unreasonably delayed in bringing this action, and is therefore guilty of laches and is

15 consequently not entitled to the relief sought.

16

AFFIRMATIVE DEFENSE

17

(Prison Litigation Reform Act)

18

Defendants allege that all or some of plaintiff's claims for relief are barred by the Prison

19 Litigation Reform Act, including but not limited to the requirement of exhaustion of

20 administrative remedies and grievance procedures and other applicable provisions of 42 U.S.C. §

21 1997.

22

AFFIRMATIVE DEFENSE

23

(Discharge of Obligations)

24

As a separate and affirmative defense to the Complaint and to the alleged violations of 42

25 U.S.C. §1983, defendants allege that at all times mentioned in the Complaint, defendants

26 performed and discharged in good faith each and every obligation, if any, owed to plaintiff.

27

28

Answer to First Amended Complaint

11

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1

AFFIRMATIVE DEFENSE

2

(Exhaustion of Remedies)

3

As a separate and affirmative defense to the Complaint and to the alleged violations of 42

4 U.S.C. §1983, defendants allege that plaintiff has failed to exhaust administrative and/or

5 contractual remedies.

6

AFFIRMATIVE DEFENSE

7

(Privilege, Justification)

8

As a separate and affirmative defense to the Complaint and to the alleged violations of 42

9 U.S.C. §1983, defendants allege that defendants’ conduct at all times material herein was

10 privileged and/or justified under applicable law.

11

AFFIRMATIVE DEFENSE

12

(Conformance)

13

As a separate and affirmative defense to the Complaint and to each and every allegation

14 contained therein, defendants allege that plaintiff’s purported state law causes of action alleged

15 in the complaint are limited to the allegations contained in any government claim plaintiff may

16 have presented, and that, to the extent the complaint attempts to enlarge or expand upon the

17 allegations asserted in such government claim, if any, the complaint fails to state a cause of

18 action and is barred pursuant to California Government Code Sections 905, 905.2, 910, 911,

19 945.4, 950.2 and related provisions.

20

AFFIRMATIVE DEFENSE

21

(Reasonable Cause)

22

Defendants allege that at all times material to this action, Defendants' had reasonable

23 cause, and acted properly in valid law enforcement activities.

24

AFFIRMATIVE DEFENSE

25

(Violations of Penal Code)

26

Defendants allege that plaintiffs violated Penal Code Sections 594, 647(a) and 647(b)

27 and other violations of the penal code, and that plaintiffs voluntarily assumed all risks,

28

Answer to First Amended Complaint

12

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1 responsibility and liability for the injuries which were the natural and probable cause of violating

2 such sections of the California Penal Code.

3

AFFIRMATIVE DEFENSE

4

(Reckless and Wanton)

5

AS AND FOR A FIFTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE

6 DEFENSE, these answering defendants allege that at all times mentioned in the Complaint,

7 plaintiffs acted in a careless, reckless, wanton and negligent manner in and about the matters set

8 forth in the Complaint; that such careless, reckless, wanton and negligent conduct proximately

9 contributed to the injuries and damages, if any, sustained or claimed by plaintiffs; that as a

10 consequence, plaintiffs' claims are barred.

11

AFFIRMATIVE DEFENSE

12

(Consent)

13

Defendants allege that at all times relevant to plaintiffs' Complaint herein, plaintiffs

14 knowingly, voluntarily and willingly consented to the search of his/her person, if, in fact, any

15 search was done.

16

AFFIRMATIVE DEFENSE

17

(Proposition 51 & Contribution)

18

Defendants allege that in the event that Defendants are found to be liable – which liability

19 is specifically denied and stated merely for the purposes of this affirmative defense – such

20 liability, if any, for non-economic damages shall be several and not joint, pursuant to the Fair

21 Responsibility Act of 1986 (Proposition 51) as set forth in Civil Code Section 1431 et seq.

22 Defendants request that the trier of fact be instructed that the amount of non-economic damages

23 be allocated in direct proportion to the percentage of fault, if any, assessed against each person or

24 entity to which the Fair Responsibility Act applies and that a separate judgment be rendered in

25 the amount of such non-economic damages attributable to that person or entity. Defendants are

26 entitled to contribution from parties that contributed to and proximately caused the occurrence.

27

28

Answer to First Amended Complaint

13

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1

AFFIRMATIVE DEFENSE

2

(Failure to Mitigate Damages)

3

Defendants allege that the Complaint and each and every cause of action therein are

4 barred because Plaintiff failed to exercise reasonable care and diligence to mitigate her alleged

5 damages.

6

AFFIRMATIVE DEFENSE

7

(Arrest Justified)

8

Defendants allege as follows:

9 A. That at all times material to the complaint, San Francisco was and is a municipal corporation

10

duly organized and existing by virtue of the laws of the State of California;

11 B. That at all times material to the complaint, certain of San Francisco's employees and agents

12

were peace officers and police officers employed by San Francisco; and at all times material

13

to the Complaint, were acting in the course and scope of their public office, service,

14

employment and agency;

15 C. That at all times material to the Complaint, Defendants acted in accordance with and

16

pursuant to California Penal Code Sections 142, 148, 834, 835, 835a, 837, 847 and 849;

17 D. That at all times material to the Complaint, certain of San Francisco's employees and agents

18

had reasonable and probable cause to believe that Plaintiff committed one or more violations

19

of the California Penal Code and California Health and Safety Code;

20 E. That at all times material to the Complaint, Defendants were acting in good faith and without

21

malice pursuant to the provisions of California Civil Code Section 43.5(a) and California

22

Government Code Sections 815, 815.2(b), 818, 820.2, 821.6, 844, 844.6 and 845.4; and

23

That as a consequence of the above, Defendants are immune from liability in this action,

24 and that Plaintiff's causes of action alleged in the Complaint against Defendants are barred by

25 law.

26

27

28

Answer to First Amended Complaint

14

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1

AFFIRMATIVE DEFENSE

2

(Probable Cause for Detention and Arrest of Plaintiff)

3

Defendants allege that at all times material to this action, Defendants had reasonable and

4 probable cause to detain, restrain and arrest Plaintiff based upon her violations of the California

5 Penal Code and Health and Safety Code.

6

AFFIRMATIVE DEFENSE

7

The named plaintiffs in this purported class action, and each of them, are not adequate

8 class represtatives, and are not representative of any class of putative plaintiffs.

9

AFFIRMATIVE DEFENSE

10

This lawsuit is not appropriate for class action treatment, because a class action will not

11 and cannot be a more efficient, expeditious or just method of resolving the claims alleged in this

12 action.

13

AFFIRMATIVE DEFENSE

14

This lawsuit is not appropriate for class action treatment because common questions of

15 law and fact do not predominate.

16

WHEREFORE, defendants pray for judgment as follows:

17

1. That plaintiff take nothing from defendants;

18

2. That the complaint be dismissed with prejudice;

19

3. That defendants recover costs of suit herein, including attorneys’ fees; and

20

4. For such other relief as is just and proper.

21 \ \ \

22 \ \ \

23 \ \ \

24 \ \ \

25 \ \ \

26 \ \ \

27 \ \ \

28 \ \ \

Answer to First Amended Complaint

15

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1

JURY DEMAND

2

Pursuant to Rule 38 of the Federal Rules of Civil Procedure and Civil Local Rule 3-6,

3 defendants demand a jury trial.

4 Dated: January 22, 2004 5 6 7 8 9

DENNIS J. HERRERA
City Attorney
JOANNE HOEPER Chief Trial Attorney INGRID M. EVANS DAVID B. NEWDORF Deputy City Attorneys

10

By: /s/

INGRID M. EVANS

11

Attorneys for Defendants

12

CITY AND COUNTY OF SAN FRANCISCO,

SAN FRANCISCO SHERIFF'S DEPARTMENT

13

and SAN FRANCISCO COUNTY SHERIFF

MICHAEL HENNESSEY 14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Answer to First Amended Complaint

16

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 Case 3:03-cv-01840-CRB Document 92-1 Filed 03/05/2004 Page 1 of 12

1 DENNIS J. HERRERA, State Bar #139669

City Attorney

2 JOANNE HOEPER, State Bar #114961

Chief Trial Attorney

3 INGRID M. EVANS, State Bar # 179094

DAVID B. NEWDORF, State Bar #172960

4 SHERRI SOKELAND KAISER, State Bar #197986

ROBERT A. BONTA, State Bar #202668

5 Deputy City Attorneys

Fox Plaza

6 1390 Market Street, Sixth Floor

San Francisco, California 94102-5408

7 Telephone: (415) 554-3884

Facsimile: (415) 554-3837

8 E-Mail:

ingrid.evans@sfgov.org

9
Attorneys for Defendants 10 CITY AND COUNTY OF SAN FRANCISCO,
SAN FRANCISCO SHERIFF’S DEPARTMENT 11 and SAN FRANCISCO COUNTY SHERIFF MICHAEL HENNESSEY

12

UNITED STATES DISTRICT COURT 13

NORTHERN DISTRICT OF CALIFORNIA 14

MARY BULL, JONAH ZERN, LISA 15 GIAMPAOLI, MARCY CORNEAU,
ALEXIS BRONSON, MICKY 16 MANGOSING, CHARLI JOHNSON,
LEIGH FLEMING, LAURA 17 TIMBROOK, and all others similarly
situated, 18

Case No. C03-1840 CRB (EMC)
DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT AND SUPPORTING MEMORANDUM OF POINTS AND AUTHORITIES

Plaintiffs, 19
vs. 20

Hearing Date: April 9, 2004

Time:

10:00 a.m.

CITY AND COUNTY OF SAN 21 FRANCISCO, SAN FRANCISCO
SHERIFF’S DEPARTMENT, SAN 22 FRANCISCO COUNTY SHERIFF
MICHAEL HENNESSEY, IN HIS 23 INDIVIDUAL AND OFFICIAL
CAPACITY, AND SAN FRANCISCO 24 COUNTY SHERIFF’S DEPUTIES DOES
1 THROUGH 150, 25

Defendants. 26

27

28
Defs’. Motion for Summary Judgment USDC No. C03-1380 CRB (EMC)

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1

NOTICE OF MOTION AND MOTION

2 TO PLAINTIFFS AND THEIR ATTORNEYS OF RECORD:

3

Please take notice that on April 9, 2004, at 10:00 a.m., before the Honorable Charles

4 Breyer, in Courtroom 8, on the 19th Floor, at 450 Golden Gate Avenue in San Francisco,

5 California, or as soon thereafter as this matter can be heard, Defendants City And County Of San

6 Francisco, San Francisco Sheriff's Department and San Francisco County Sheriff Michael

7 Hennessey (“Defendants”) will and hereby do move for summary judgment on all state- and

8 federal-law strip-search claims brought by Plaintiffs Jonah Zern, Marcie Corneau, Alexis

9 Bronson, Lisa Giampaoli; on all state-law strip-search claims brought by Plaintiffs Mary Bull

10 and Laura Timbrook; and on all claims brought by Plaintiff Charli Johnson.

11

Defendants move for summary judgment against Plaintiffs Jonah Zern, Marcie Corneau,

12 Alexis Bronson, and Lisa Giampaoli on their claims that they were strip-searched in violation of

13 state and federal law. These plaintiffs were booked for crimes of violence. Therefore, any strip

14 search conducted of any these Plaintiffs at the San Francisco County Jail was valid under state

15 and federal law. Plaintiffs Mary Bull and Laura Timbrook were booked on felonies and are

16 statutorily excluded from bringing claims under Penal Code § 4030. Further, all claims raised by

17 Plaintiff Charli Johnson are time-barred.

18

This motion for summary judgment shall be based on this Notice Of Motion And Motion

19 For Summary Judgment And Supporting Memorandum Of Points and Authorities, the

20 Declaration of Ingrid M. Evans, and the Proposed Judgment, all filed or lodged herewith, as well

21 as the file in this case, the argument of counsel at the hearing, and any such further matters as the

22 Court deems appropriate.

23

24

25

26

27

28

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1

MEMORANDUM OF POINTS AND AUTHORITIES

2

INTRODUCTION

3

No fewer than seven of the nine individual plaintiffs in this would-be class action bring

4 strip search claims that fail as a matter of law. Four of these seven were arrested for crimes of

5 violence: causing serious bodily harm to a peace officer (Jonah Zern); spousal battery or battery

6 in a dating relationship (Marcie Corneau); battery and threats to commit a crime resulting in

7 death or great bodily injury (Alexis Bronson); and assault with a deadly weapon (Lisa

8 Giampaoli). Such crimes of violence justify a strip search under both federal and state law. Two

9 more plaintiffs were arrested for non-violent felonies—felony vandalism (Mary Bull), and

10 burglary and forgery (Laura Timbrook)—and cannot pursue their claims under Section 4030 of

11 the California Penal Code because that statute explicitly excludes felony arrestees from its reach.

12 Finally, all claims raised by the seventh plaintiff challenged here, Charli Johnson, are time-

13 barred.

14

The City therefore respectfully requests that this Court enter summary judgment against

15 Plaintiffs Zern, Corneau, Bronson and Giampaoli on Counts One, Three and Four of the Cross-

16 Complaint, in which they allege that they were strip searched in violation of the state and federal

17 constitutions and Penal Code Section 4030. The City is also entitled to summary judgment

18 against Plaintiffs Bull and Timbrook on their strip-search claims under Section 4030 of the

19 California Penal Code, and against Plaintiff Johnson on all claims.

20

STATEMENT OF FACTS

21

A. Jonah Zern

22

Plaintiff Jonah Zern was arrested in San Francisco on January 18, 2003, for violations of

23 Penal Code Sections 594(a)(1) (malicious vandalism), 594(b)(1) (felony vandalism), 148

24 (resisting arrest), and 148.10 (resisting arrest resulting in serious bodily injury to police officer).

25 See San Francisco Police Department ("SFPD") Incident Report and Field Arrest Card of Jonah

26 Zern ("Zern Arrest Rpt.") at 1, 10, attached as Exhibit ("Ex.") A to the Declaration of Ingrid M.

27 Evans In Support Of Defendants’ Motion For Summary Judgment ("Evans Decl."). Zern was

28 participating in an anti-war protest and traveling on foot through the financial district of San

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1 Francisco. See Zern Arrest Rpt. at 3, ¶1. Zern was part of a group that was breaking windows

2 and spray painting buildings along Sansome and Washington Streets. Id. at 3, ¶2.

3

Inspector Yu, Officer Lozada, and Officer Peagler observed the group of protestors stop

4 in front of the Immigration and Naturalization Services (INS) building, break the glass, and

5 vandalize the building with spray paint. Id. The Officers then witnessed a smaller group—

6 consisting of Zern and eight to ten others—knock over four to five San Francisco Police

7 Department motorcycles. Zern Arrest Rpt. at 3, ¶ 3. Zern and the small group then kicked and

8 pushed at the leveled motorcycles to the applause of the larger group. Zern and two others

9 continued their assault by kicking down several newspaper receptacles. Id.

10

The officers then moved in to arrest Zern and another unidentified male. As Officer

11 Peagler struggled with the unidentified male, Officer Lozada displayed his star and moved in to

12 arrest Zern. Zern Arrest Rpt. at 3 ¶ 4; 5, ¶ 3. Officer Lozada shouted "Police Officer. Stop.

13 You are under arrest." Zern disregarded this command and attempted to flee. Id. at 5, ¶ 4.

14 Officer Lozada then applied a takedown technique that brought Zern onto his back on a parked

15 vehicle, but Zern violently resisted arrest. Id. Officer Lozada then brought Zern to the ground

16 and attempted to handcuff him, but a group of twenty or more violent protestors physically

17 attacked Officer Lozada in an attempt to obstruct Officer Lozada's lawful custody of Zern. Id. at

18 5, ¶¶ 4-5.

19

Inspector Yu and Officer Peagler moved through the crowd to aid Officer Lozada in

20 regaining control of the resisting Zern. Zern Arrest Rpt. at 3, ¶ 5; 5, ¶¶ 3-6. Zern continued to

21 resist violently until Officer Peagler placed Zern in a cross face lock. Then, at the direction of

22 Lieutenant Crenshaw and with the assistance of Inspector Yu, Officers Lozada and Peagler

23 dragged Zern out of the crowd and placed Zern in handcuffs. Id. at 4, ¶ 5. Officer Peagler

24 placed Zern in the Sheriff's van and Inspector Yu booked him at the Southern Police Station. Id.

25 at 4, ¶¶ 5-7. Among other charges, Zern was arrested for violating Penal Code Section 148.10

26 (resisting arrest resulting in serious bodily injury to police officer). Evans Decl. ¶2.

27

28

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B. Marcie Corneau 1

2

Plaintiff Marcie Corneau was arrested in San Francisco on September 1, 2003, for an

3 outstanding warrant and a violation of Penal Code Section 243(e)(1) (battery of a spouse or in a

4 dating relationship). See SFPD Incident Report and Field Arrest Card of Marcie Corneau

5 ("Corneau Arrest Rpt.") at 1, 12, attached as Ex. B to Evans Decl. Corneau and Camio Scott

6 were both from southern California and new to the San Francisco Bay Area. Corneau Arrest Rpt

7 at 4, ¶ 1. They were co-habitants in a dating relationship and had a child. Id. at 3, ¶ 7.

8

On September 1, 2003, Corneau found Scott at a party near 500 Broadway, San

9 Francisco, and the two began to argue outside. Corneau Arrest Rpt. at 3, ¶¶ 1, 4-5. Officers

10 Choy and Byrne were walking on Broadway when they observed two people in a verbal

11 argument. Id. at 3, ¶ 1. The officers observed both Corneau and Scott swinging their hands at

12 each other. Id. Then Scott tried to walk away from Corneau, but Corneau ran at Scott from

13 behind and grabbed his shirt. Id. Scott then broke free and continued to walk away until

14 Corneau caught up with him again and, this time, kicked Scott in the upper leg area from behind.

15 Id. Scott kicked back at Corneau and Corneau stumbled. Id. Corneau then again ran at Scott

16 from behind and grabbed his shirt. Id. At that point, the officers intervened and detained

17 Corneau and Scott pending further investigation. Id. at 3, ¶ 2.

18

The officers determined Corneau to be the aggressor and, based on their own personal

19 observations, confirmed Scott's version of the incident. Corneau Arrest Rpt. at 3, ¶¶ 6-7. Scott

20 was released, and he subsequently filed for a citizen’s arrest against Corneau. Id. at 8; 3, ¶ 7.

21 Officer Byrne then served Corneau with an Emergency Protective Order. Id. at 9; 3-4, ¶ 9. A

22 computer check revealed that Corneau had an outstanding warrant for her arrest and that the

23 couple had had numerous previous domestic disputes. Id. at 7; 3, ¶ 8; 4 ¶ 1. Sergeant Venderbilt

24 approved the booking of Corneau, as there was a reasonable likelihood that the safety of both

25 persons would be imminently endangered if Corneau were released. Id. at 4, ¶ 1. Corneau was

26 booked for a violation of Penal Code § 243(e)(1) (battery of a spouse or in a dating relationship),

27 a crime of violence. Evans Decl. ¶3.

28

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C. Alexis Bronson 1

2

Plaintiff Alexis Bronson was arrested in San Francisco on August 5, 2002, for violations

3 of Penal Code Sections 422 (threat to commit crime resulting in death or great bodily injury to

4 another), 242 (battery), and 647(f) (public intoxication). SFPD Incident Report and Field Arrest

5 Card of Alexis Bronson ("Bronson Arrest Rpt.") at 1, 8, attached as Ex. C to Evans Decl.

6 Officers Doyle and Nelson were dispatched to 680 Mission Street to investigate a reported

7 battery. Bronson Arrest Rpt. at 3, ¶ 1. Victim Woody Wilcox met the officers and informed

8 them that he had seen Bronson enter the apartment's parking garage in his car in an unsafe

9 manner and at a high rate of speed. Id. at 3, ¶ 2. Wilcox reported that, when he approached

10 Bronson and questioned him about his speed, Bronson became violent and pushed Wilcox in the

11 chest. Id. Wilcox then told Bronson that he was going to call 911 to report the incident, and

12 Bronson responded, "If you call 911, I'll kill you." Id. The parking lot attendant was able to

13 identify Bronson through his vehicle license plate number and furnished the officers with

14 Bronson's apartment number. Id.

15

The officers then went to Bronson's apartment with Wilcox and the building manager,

16 Michelle Lee. Bronson Arrest Rpt. at 3, ¶ 3. The officers smelled alcohol on Bronson and

17 concluded that he was inebriated, evidencing red eyes and slurred speech. Id. Bronson admitted

18 having an argument with Wilcox, but denied the battery. Id. Officer Doyle informed Bronson

19 that he would be making a report and provided Bronson with a follow-up form. Id.

20

The officers returned to the building lobby with Lee. Bronson followed them into the

21 lobby, and angrily questioning Lee as to why she gave the police his name and apartment

22 number. Bronson Arrest Rpt. at 3, ¶ 4, Ex. C. Bronson's menacing manner frightened Lee and

23 corroborated Wilcox's earlier statements about Bronson's actions. Id. The officers then arrested

24 Bronson. Id. Bronson became belligerent during handcuffing and resisted Officer Doyle's

25 attempts to escort him out of the lobby. Id. Once he reached the sidewalk, Bronson lunged

26 towards Officer Nelson, and Officer Doyle had to pull him away. Id. at 3-4,¶ 4.

27

Officer Miranda assisted Officer Doyle in placing Bronson—who was still violently

28 resisting and out of control—into the police transport, in which Bronson rode to County Jail

Defs’. Motion for Summary Judgment

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1 No. 9. Bronson Arrest Rpt. at 4, ¶ 1. Wilcox then filed a citizen’s arrest form based on the

2 initial threat and battery. Id. at 4, ¶ 3. Bronson was booked for violations of Penal Code

3 Sections 422 (threat of death or great bodily injury to another) and 242 (battery), both crimes of

4 violence. Evans Decl. ¶ 4.

5

D. Lisa Giampaoli

6

Plaintiff Lisa Giampaoli was arrested in San Francisco on July 20, 2002, for a violation

7 of Penal Code Section 245(a)(1) (assault with a deadly weapon other than a firearm). See SFPD

8 Incident Report and Field Arrest Card of Lisa Giampaoli ("Giampaoli Arrest Rpt.") at 1, 9,

9 attached as Ex. D to Evans Decl. On that date at approximately 1:41 a.m., Officers Brothers and

10 Leung witnessed a white male with a dog, followed by a white female, running across the 5100

11 block of Geary Street. Giampaoli Arrest Rpt at 4, ¶ 1. The officers pulled over to investigate

12 and were told by Vladimir Mikshansky that he had witnessed Giampaoli urging her dog to attack

13 three Asian males. Id. at 4, ¶ 2. This report was corroborated by witnesses Anton Karbushev

14 and Andrew Siri. Id. at 4, ¶ 5; 5 ¶ 1.

15

Mikshansky described how the Asian males had run inside 5120 Geary Street in order to

16 seek protection from Giampaoli and her attacking dog, and that Mikshansky and another had

17 held the door shut to prevent Giampaoli and her dog from entering that building. Id. at 4, ¶ 2.

18 After Giampaoli turned to walk away from the door, Mikshansky went back outside. Id. But

19 once he did, Giampaoli turned the dog to face Mikshansky, shouting "It doesn't matter if you’re

20 Black, Asian or White," and sicced the dog on Mikshansky. Id. The dog bit Mikshansky in the

21 left hand, injuring him. Id. Mikshansky stated that, after the dog bit him, he ran across the

22 street, pursued by Giampaoli and the dog. Around this time, the officers arrived and witnessed

23 the dog and Giampaoli running across the street. Id.

24

The officers verified that the wound to Mikshansky was consistent with a dog bite. Id.

25 Giampaoli was arrested for a violation of Penal Code § 245(a)(1) (assault with a deadly weapon

26 other than a firearm), a crime involving violence and the use of a weapon. Evans Decl. ¶ 5.

27

28

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E. Mary Bull 1

2

Plaintiff Mary Bull was arrested and booked on two charges of felony vandalism

3 pursuant to Penal Code Sections 594(b)(1) and 594.2(a). Evans Decl. ¶ 7 & Ex.F. F. Laura Timbrook
4

5

Plaintiff Laura Timbrook was taken into custody on the basis of arrest warrants from the

6 Palo Alto and Berkeley Police Departments for violations of Penal Code Sections 459 (burglary),

7 470(b) (forgery), 476a (insufficient fund check) and 475(a) (forgery). Evans Decl. ¶ 8 & Ex. G.

8 The warrant issued by the Palo Alto Police Department was a felony warrant. Id. G. Charli Johnson
9

10

Plaintiff Charlie Johnson was arrested in San Francisco on August 30, 2001, on an

11 outstanding bench warrant for a violation of Vehicle Code § 14601.1(a) (operating a vehicle on a

12 suspended license). Evans Decl. ¶6 & Ex. E.

13
14 I.
15
16

ARGUMENT
SUMMARY JUDGMENT MUST BE GRANTED WHERE, AS HERE, THE UNDISPUTED MATERIAL FACTS ENTITLE DEFENDANTS TO JUDGMENT AS A MATTER OF LAW.

17

A moving party is entitled to summary judgment if there is no genuine issue as to any

18 material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.

19 56(c). Material facts are those which may affect the outcome of the case. Anderson v. Liberty

20 Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party bears the initial burden of production

21 demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S.

22 317, 323 (1986). The party opposing the motion may not rest on conclusory allegations or mere

23 assertions, but must come forward with probative evidence that is sufficient, taking the record as

24 a whole, to allow a rational jury to find for the nonmoving party. Matsushita Electric Industries

25 Co. v. Zenith Radio, 475 U.S. 574, 587 (1986).

26

Here, there are no material facts in dispute: the nature of the charges against each of the

27 plaintiffs is clearly documented and the date of Plaintiff Johnson’s arrest is similarly beyond

28

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1 dispute. As these uncontested facts dispose of claims raised by seven of the nine individual

2 plaintiffs as a matter of law, Defendants are entitled to summary judgment.

3 II. 4

BECAUSE PLAINTIFFS ZERN, CORNEAU, BRONSON AND GIAMPAOLI WERE ARRESTED FOR CRIMES OF VIOLENCE, THEIR CONSTITUTIONAL CLAIMS FAIL AS A MATTER OF LAW.

5

The Supreme Court of the United States has held that the Fourth Amendment of the

6 United States Constitution protects an arrestee's privacy interests and bars intrusions into the

7 body which are not justified under the circumstances. Schmerber v. California, 384 U.S. 757,

8 768 (1966). In determining whether a search was reasonable under the Fourth Amendment, a

9 court must balance "the need for the particular search against the invasion of personal rights that

10 the search entails." Bell v. Wolfish, 441 U.S. 520, 559 (1979).

11

The case law could not be clearer: a strip search is reasonable and justified if the charged

12 offense is related to drugs, weapons or violence. See Kennedy v. Los Angeles Police Dep't, 901 13 F.2d 702, 716(9th Cir. 1990); Thompson v. City of Los Angeles, 885 F.2d 1439, 1447 (9th Cir.

14 1989); Giles v. Ackerman, 746 F.2d 614, 618 (9th Cir. 1984); see also Masters v. Crouch, 872 15 F.2d 1248, 1255 (6th Cir. 1989); Dufrin v. Spreen, 712 F.2d 1084, 1087 (6th Cir. 1983); 16 Dobrowolskyj v. Jefferson County, 823 F.2d 955, 958-59 (6th Cir. 1987).

17

Controlling Ninth Circuit decisions also leave no doubt that the offenses for which

18 Plaintiffs Zern, Corneau, Bronson and Giampaoli were arrested all qualify as crimes of violence. 19 For example, in United States v. Robinson, 967 F.2d 287, 293 (9th Cir. 1992), the Ninth Circuit

20 explained that, in the sentencing context, “crimes of violence” contain an element of use,

21 attempted use, or threatened use of physical force against another or involve conduct which

22 poses a serious risk of potential injury to another. Id. Plaintiff Zern’s arrest for resisting arrest

23 with significant bodily injury to a peace officer easily satisfies this test, as do the arrests of

24 Plaintiffs Corneau and Bronson for battery and Plaintiff Giampaoli for assault with a deadly

25 weapon. See id. (battery on a police officer is a crime of violence); United States v. Campos26 Fuerte, 357 F.3d 956, 961 (9th Cir. 2004) (flight from police in willful and wanton disregard for 27 safety a crime of violence); Rosales-Rosales v. Ashcroft, 347 F.3d 714, 717 (9th Cir. 2003) (threat

28 to commit crime resulting in death or great bodily injury to another is crime of violence); United

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1 States v. Amparo, 68 F.3d 1222, 1225 (9th Cir. 1995) (assault and battery are each crimes of

2 violence).

3

As each of these Plaintiffs was charged with one or more crimes of violence, a strip

4 search was an objectively reasonable procedure in each case. These Plaintiffs’ claims of

5 constitutional violations fail as a matter of law.

6 III. 7

THE CLAIMS OF PLAINTIFFS BULL, ZERN, CORNEAU, BRONSON, GIAMPAOLI AND TIMBROOK UNDER PENAL CODE SECTION 4030 FAIL AS A MATTER OF LAW BECAUSE THEY WERE EACH ARRESTED FOR A FELONY AND/OR CRIME OF VIOLENCE.

8

All individual plaintiffs also bring claims for strip searches that allegedly violate 9

California Penal Code Section 4030. But this statute specifically excludes from its provision any 10

persons arrested for a felony. The statute states:

11 The provisions of this section shall apply only to prearraignment detainees

12

arrested for infraction or misdemeanor offenses and to any minor detained

prior to a detention hearing on the grounds that he or she is a person . . . .

13

alleged to have committed a misdemeanor or infraction offense. (Cal.

Penal Code § 4030.)

14

Section 4030 also provides that reasonable suspicion is required to strip search certain persons 15

arrested for misdemeanors and infractions “except those involving weapons, controlled 16

substances or violence.” Penal Code § 4030(f) (emphasis added). 17

Plaintiffs Mary Bull and Laura Timbrook were each arrested on felony charges. See 18

Evans Decl. ¶¶ 7-8. As shown above, Plaintiffs Zern, Corneau, Bronson and Giampaoli were 19

arrested for crimes of violence. See Section II, supra. Accordingly, none of these plaintiffs are 20

entitled to invoke Penal Code Section 4030, and Defendants are entitled to summary judgment 21
on those claims.1 22
IV. PLAINTIFF JOHNSON’S CLAIMS ARE TIME-BARRED.

23

The instant action was filed on April 23, 2003, but Plaintiff Charli Johnson appears for 24

the first time in the First Amended Complaint, filed on January 12, 2004. Johnson's arrest and 25

the events of which she complains occurred on or about August 30, 2001. See Evans Decl. ¶6. 26

1 Lisa Giampaoli’s claim under Penal Code § 4030 is also barred by her failure to file a 27 timely government tort claim. See Section IV, infra.

28

Defs’. Motion for Summary Judgment

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1

At the time her claims arose, the statute of limitations for her federal claims was one year.

2 Federal claims under 42 U.S.C. § 1983 are governed by the applicable state statute of limitations.

3 See Wilson v. Garcia, 471 U.S. 261, 279-80 (1985). Before January 1, 2003, that statute of

4 limitations was one year. See Cal. Code Civ. Pro. § 340 (West 1982 [before amendment

5 effective Jan. 1, 2003]); Hacienda Valley Mobile Estates v. City of Morgan Hill, 353 F.3d 651,

6 655 & n.2 ( 9th Cir. 2003). Accordingly, Johnson was required to file any federal claims by

7 August 30, 2002. Her 2004 complaint is more than a year too late.

8

Plaintiff Johnson’s state-law claims are likewise time-barred. “[S]ubmission of a claim

9 to a public entity is a condition precedent to tort action and the failure to present the claim bars

10 the action.” Lutz v. Tri City Hosp., 179 Cal. App. 3d 807, 812 (1986). California Government

11 Code section 911.2 requires that a tort claim for personal injury against a public entity be filed

12 “not later than six months after the accrual of the cause of action.” People ex rel Dept. of

13 Transp. v. Sup. Ct. (Isenhower), 105 Cal. App. 4th 39, 43 (2003). The state claim presentation

14 requirement applies to claims for monetary relief whether based on tort, contract, statute or state

15 constitutional provisions. See Baines Pickwick Limited v. City of Los Angeles, 72 Cal. App. 4th

16 298, 309 (1999) (contract and tort claims); Nuremberg Actions v. County of Contra Costa, 697 F.

17 Supp. 1111, 1113 (N.D. Cal. 1988) (state constitutional claims); Gatto v. County of Sonoma, 98

18 Cal. App. 4th 744, 765 (state Unruh Civil Rights Act claims). Each claimant must file a

19 government claim, and compliance is not excused on the ground that another party filed a

20 government claim based on the same facts or occurrence. See, e.g., Nguyen v. Los Angeles

21 County Harbor/UCLA Med. Ctr., 8 Cal. App. 4th 729, 734 (1992) (granting nonsuit as to

22 parents’ claim for emotional distress although daughter had filed government claim for damages

23 based on same occurrence).

24

Plaintiffs seek to rely on a class government tort claim filed by Mary Bull on February

25 10, 2003, to satisfy the claim presentation requirement of all named plaintiffs. The class action

26 procedures do not extend the statute of limitations or the time for complying with the claim

27 presentation requirements. Thus, in order to rely on the February 10, 2003, claim, each

28 plaintiff’s state law claims must have arisen on or after August 10, 2002. As Plaintiff Johnson’s

Defs’. Motion for Summary Judgment

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1 claim arose in August 2001 but she failed to file a government claim within six months, Plaintiff

2 Bull’s class claim, filed a year and a half later, cannot resurrect it. Plaintiff Johnson’s state law

3 claims, like her federal claims, are time-barred.

4

CONCLUSION

5

Defendants respectfully request that this Court enter summary judgment in their favor on

6 the claims and for the reasons specified above.

7 Dated: March 5, 2004 8 9 10 11 12 13

DENNIS J. HERRERA
City Attorney
JOANNE HOEPER Chief Trial Attorney INGRID M. EVANS DAVID B. NEWDORF SHERRI SOKELAND KAISER ROBERT A. BONTA Deputy City Attorneys

14

By:____________/s/

15

INGRID M. EVANS

16

Attorneys for Defendants

CITY AND COUNTY OF SAN FRANCISCO,

17

SAN FRANCISCO SHERIFF’S DEPARTMENT

and SAN FRANCISCO COUNTY SHERIFF

18

MICHAEL HENNESSEY

19

20

21

22

23

24

25

26

27

28

Defs’. Motion for Summary Judgment

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 Case 3:03-cv-01840-CRB Document 124 Filed 03/19/2004 Page 1 of 21

1 Andrew C. Schwartz (State Bar No. 064578) Thom Seaton (State Bar No. 62713)
2 Micha S. Liberty (State Bar No. 215687)
CASPER, MEADOWS &SCHWARTZ
3 A Professional Corporation California Plaza
4 2121 North California Blvd., Suite 1020 Walnut Creek, California 94596
5 Telephone: (925) 947-1147
Facsimile: (925) 947-1131
6 E-Mail: Schwartz@cmslaw.com
7 Mark E. Merin (State Bar No. 043849)
Jeffrey I. Schwarzschild (State Bar No. 192086)
8 LAW OFFICES OF MARK E. MERIN
2001 P Street, Suite 100
9 Sacramento, California 95814
Telephone: (916) 443-6911 10 Facsimile: (916) 447-8336
E-Mail: mark@markmerin.com 11

12 Attorneys for Plaintiffs

13

14

UNITED STATES DISTRICT COURT

15

NORTHERN DISTRICT OF CALIFORNIA

16

17 MARY BULL, JONAH ZERN, LISA GIAMPAOLl, MARCY CORNEAU, ALEXIS
18 BRONSON, MIKI MANGOSING, CHARLI
JOHNSON, LEIGH FLEMING, LAURA
19 TIMBROOK, and all others similarly situated,

Case No. C 03-1840 CRB

20

Plaintiffs,

21 vs.
22 CITY AND COUNTY OF SAN FRANCISCO; et 23 aI.,

24

Defendants.

25

26
27
28
CASPER, MEADOWS & SCHWARTZ
2121 N. California Blvd., Guite 1020
Walnut Creek, CA 94596 TEL: (925) 947-1147 FAX (925) 947-1131

PLAINTIFFS' MEMORANDUM IN OPPOSITION TO DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS ON CROSS· COMPLAINT FOR DECLARATORY RELIEF
MARY BULL, et aI., v. CITY AND COUNTY OF SAN FRANCISCO, et al. USDC Case No. C03-1840 CRB
PLAINTIFFS' MEMORANDUM IN OPPOSITION TO MOTION FOR JUDGMENT ON THE PLEADINGS

Case 3:03-cv-01840-CRB Document 124 Filed 03/19/2004 Page 2 of 21

1 PLAINTIFFS' MEMORANDUM IN OPPOSITION TO DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS ON CROSS-
2 COMPLAINT FOR DECLARATORY RELIEF

3

TABLE OF CONTENTS

4 I.

SUMMARY OF PLAINTIFFS' ARGUMENT

1

5 II.

OVERVIEW OF PLAINTIFFS' OPPOSITION

2

6
III.
7

ARGUMENT: A PARTIAL JUDGMENT ON THE PLEADINGS ON DEFENDANTS' CROSS-COMPLAINT FOR DECLARATORY

JUDGMENT IS INAPPROPRIATE BECAUSE ISSUES OF

8

FACT MUST BE RESOLVED AND BECAUSE A PARTIAL

9

DECLARATORY JUDGMENT WILL NOT TERMINATE

THE CONTROVERSY

5

10

A. A Judgment On the Pleadings Is Not Warranted If

11

Factual Issues Remain To Be Adjusted

5

12

B. Declaratory Judgment Must Be Denied When A Party

13

Seeks Only An Advisory Opinion, When The Issues

Are Not Ripe For Adjudication Because The Factual

14

Record Is Incomplete If Declaratory Relief Will Not

15

Terminate The Controversy

6

16 IV. THE STATE OF THE RECORD ON DEFENDANTS'

MOTION PRECLUDES THE GRANT OF DECLARATORY

17

RELIEF

7

18
19
20
21
22
23
24
25
26
27
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CASPER, MEADOWS & SCHWARTZ
2121 N. California Blvd., Suite 1020
Walnut Creek, CA 94596 TEL: (925) 947-1147 FAX (925) 947-1131

V. AN ORDER BLESSING THE NEW REGULATIONS WILL NOT

RESOLVE THE CONTROVERSY BETWEEN THE PARTIES NOR PRECLUDE

FUTURE LITIGATION; MOREOVER SUBSTANTIAL UNRESOLVED

FACTUAL ISSUES TIED TO THE VALIDITY OF

THE NEW REGULATIONS FURTHER COUNSEL DENIAL

OF THE MOTION

9

A. Defendants' Motion Mischaracterizes Plaintiffs' Claims.

9

1. Plaintiffs' First Amended Complaint

9

2. Plaintiffs' Motion For A Preliminary Injunction

10

B. A Declaratory Relief Judgment Will Not Resolve

The Controversy Nor Preclude Future Litigation;

Additional Facts Must Be Resolved Before The Court

Can Confidently Decide Whether Declaratory Relief Is

Appropriate

11

MARY BULL, et aI., v. CITY AND COUNTY OF SAN FRANCISCO, et al.

ii

USDC Case No. C03-1840 CRB

PLAINTIFFS' MEMORANDUM IN OPPOSITION TO MOTION FOR JUDGMENT ON THE PLEADINGS

Case 3:03-cv-01840-CRB Document 124 Filed 03/19/2004 Page 3 of 21

1

2 VI. 3

DECLARATORY RELIEF ALSO IS INAPPROPRIATE BECAUSE MANY OF THE NEW WRITTEN POLICIES VIOLATE THE CONSTITUTION

4 A. Visual Body Cavity Searches Are Impermissible Absent

5

Individualized Reasonable Suspicion That An Arrestee

Has Secreted Weapons Or Contraband In His Or

6

Her Person

7 B. With No Factual Basis, The Strip-Search Policies Contain

8

Overbroad Classifications And Other Defects Which

Preclude Declaratory Relief
9

10

c. The Safety Cells Policy Is Also Flawed

11 VII. CONCLUSION

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

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CASPER, MEADOWS & SCHWARTZ
2121 N. California Blvd., Guite 1020
Walnut Creek, CA 94596 TEL: (925) 947-1147 FAX (925) 947-1131

MARY BULL, et aI., v. CITY AND COUNTY OF SAN FRANCISCO, et al. USDC Case No. C03-1840 CRB
PLAINTIFFS' MEMORANDUM IN OPPOSITION TO MOTION FOR JUDGMENT ON THE PLEADINGS

12 12 14 15 16
iii

Case 3:03-cv-01840-CRB Document 124 Filed 03/19/2004 Page 4 of 21

1

2

Cases

TABLE OF AUTHORITIES

Page(s)

3 United States of America v. Braren
338 F.3d 971 (9th Cir. 2003
4
United States v. State of Washington
5 759 F.2d 1353 (9th Cir. 1985)

1,2,4,6 1,4, 6,8, 11

6 Orix Credit Alliance v. Wolfe
212 F.2d 891 (5th Cir. 2000)
7
Robinson Band of Pomo Indians of
8 Robinson Rancheria v. Babbitt
(N.D. Cal. 1998)
9
Kennedy v. Los Angeles Police Dept. 10 901 F.2d 702 (9th Cir. 1989)

1,6, 1,4,6,8 1, 3, 7, 12, 13

11 Fuller v. M.G. Jewelry 950 F.2d 1437, 1445 (9th Cir. 1991)
12 Enron Oil Trading & Transportation Co. v.
13 Walbrook Tns. Co., TJd. 132 F.3d 526 (9th Cir. 1997)
14
Robelis v. Robert v. Rohrman Inc. 15 909 F.Supp. 545 (N.D. Ill. 1995)

4, 12 5 5

16 United States v. Ritchie

5

342 F.3d 903 (9th Cir. 2003)

17

United States v. Wilson

5

18 631 F.2d 118 (9th Cir. 1980)

19 Cardiner v. Provident Life and Accident Insurance Company

5

158 F.Supp.2d 1088 (C.D. Cal. 2001)

20

Thomas v. Anchorage Equal Rights Commission

6

21 220 F.3d 1134 (9th Cir. 2000)

22 Cha-Toine Hotel Apartments Building Corp.

6

v. Shogren 204 F.2d 256 (ih Cir. 1953)

23

Miramax Film Corp. v. Abraham 2003 WL 22832384

6

24 (S.D.N.Y. 2003)

25 Giles v. Ackerman
746 F.2d 714 (9th Cir. 1984)
26
Mary Beth G. v. City of Chicago
27 723 F.2d 1263 (ih Cir. 1983)

7, 11, 12, 13 7

28

CASPER, MEADOWS

& SCHWARTZ

2121 N. California Blvd., Suite '1020

MARY BULL, et aI., v. CITY AND COUNTY OF SAN FRANCISCO, et al.

iv

Walnut Creek, CA 94596

USDC Case No. C03-1840 CRB

TEL: (925) 947-1147 FAX (925) 947-1131

PLAINTIFFS' MEMORANDUM IN OPPOSITION TO MOTION FOR JUDGMENT ON THE PLEADINGS

Case 3:03-cv-01840-CRB Document 124 Filed 03/19/2004 Page 5 of 21

1

2 People v. Rocha

14

(1971) 3 Ca1.3d 893 92 Ca1.Rptr. 172

3

People v. Longoria

14

4 (1995) 34 Ca1.App.4th 12 Cal.Rptr. 2d 213

5 Corcoran v. Fletcher

14

160 F.2d 1085 (C.D. Cal 2001)

6

Watt v. City of Richardson Police Department

15

7 849 F.2d 195 (5th Cir. 1988)

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22
23

24

25

26

27

28

CASPER, MEADOWS

& SCHWARTZ

2121 N. California Blvd., Suite 1020

MARY BULL, et aI., v. CITY AND COUNTY OF SAN FRANCISCO, et al.

v

Walnut Creek, CA 94596

USDC Case No. C03-1840 CRB

TEL: (925) 947-1147 FAX (925) 947-1131

PLAINTIFFS' MEMORANDUM IN OPPOSITION TO MOTION FOR JUDGMENT ON THE PLEADINGS

Case 3:03-cv-01840-CRB Document 124 Filed 03/19/2004 Page 6 of 21

1 I. SUMMARY OF PLAINTIFFS' ARGUMENT

2

Defendants seek what is in effect an advisory opinion on the legality of their new

3 written strip search and safety cell policies. At least three reasons should prompt the Court to

4 deny Defendants' motion.

5

First, declaratory relief is inappropriate unless the matter is ripe for adjudication and

6 does not require a more factual development of the record. United States ofAmerica v. Braren, 7 338 F.3d 971,975 (9th Cir. 2003); United States. v. State ofrVashington, 759 F.2u 1353, 1357 8 (9th Cir. 1985) (en bane); Orix Credit Alliance v. Wolfe, 212 F.2d 891, 895-896 (5th Cir.2000);
Robinson Band ofPorno Indians ofRobinson Rancheria v. Babbitt (N.D. Cal. 1998) 1998 WL 9
[Westlaw] 355580.. In detem1ining the legality ofjail policies infringing on arrestees' Fourth 10
Amendlnent and Due Process rights, courts must conduct a "delicate balancing" between 11
"institutional needs and objectives" and the "constitutional liberties" of persons suspected of
12 crime. Kennedy v. Los Angeles Police Dept., 901 F.2d 702, 711 (9th Cir. 1989). That balancing
13 cannot be done within the confines of the Cross-Complaint in which Defendants seek a
14
declaratory judglnent. 15
Second, declaratory relief should be denied when it will not terminate the proceedings 16
and afford relief from the uncertainty and controversy faced by the parties." United States. v. 17 State of Washington, 759 F.2d 1353, 1357 (9th Cir. 1985) (en bane). Plaintiffs' claims focus on 18
unconstitutional and illegal conduct which in some cases emanated from written policies, but in
19 many cases violated written policies but became the de facto policies of the Department.
20 Absent a record showing that the Department will enforce the valid new policies, no Order
21 should issue and, in any event, no Order will bind those not now before the Court and cannot
22 preclude suits by those harmed by unconstitutional practices post-January 2004.

23

Finally, many of the new policies are suspect and lack any support in the record.

24 Defendants reject the mandatory requirement of individualized reasonable suspicion and create

25 broad categories permitting visual body cavity searches of those arrested on weapons, drugs or

26 violence charges and with certain criminal histories absent ay showings whatever that such

27 individuals are, in fact, are likely to secrete weapons or contraband in body orifices when

28
CASPER, MEADOWS & SCHWARTZ
2121 N. California Blvd., Suite 1020
Walnut Creek, CA 94596 TEL: (925) 947-1147 FAX (925) 947-1131

arrested.
MARY BULL, et aI., v. CITY AND COUNTY OF SAN FRANCISCO, et al. USDC Case No. C03-1840 CRB
PLAINTIFFS' MEMORANDUM IN OPPOSITION TO MOTION FOR JUDGMENT ON THE PLEADINGS

Page 1

Case 3:03-cv-01840-CRB Document 124 Filed 03/19/2004 Page 7 of 21

1 II. OVERVIEW OF PLAINTIFFS' OPPOSITION

2

On January 22, 2004, seeking to moot Plaintiffs' claims for injunctive relief and

3 Plaintiffs' Motion for a Preliminary Injunction, Defendants filed a Cross-Complaint for

4 Declaratory Relief to which they appended new regulations. The Department promulgated

5 these new policies in mid-January 2004, years after the Ninth Circuit had condemned blanket

6 strip searches and nine months after Plaintiffs filed suit. The Cross-Complaint asks the Court 7 to declare that the c1ain1 for injunctive relief is moot and that the new regulations comply with

8 federal and state law.

9

Defendants' Motion for Judgment on the Pleadings seeks an Order blessing the Sheriffs

Department's new written policies. Defendants' Cross-Complaint alleges no more than the 10

existence of a dispute between the parties about the legality of the new written policies. It 11
contains no allegations describing the institution's security needs which could support the new
12
written policies, fails to allege that the Department has disciplined violators of the prior written 13
policies, or even enforced the new ones. 14
The issues framed by the Cross-Complaint are simply not ripe for adjUdication. Those 15
issues need further factual development. United States ofAmerica v. Braren, 338 F.3d 971,
16 975 (9th Cir. 2003). Moreover, many of the issues addressed by new written policies, dealing

17 with both visual body searches and particularly safety cells are not encompassed in Plaintiffs'

18 pleadings. Ruling on these matters would be a purely advisory opinion which this Court lacks

19 jurisdiction under Article III to issue.

20

A review of the Plaintiffs' pleadings in this case reveals that from the start Plaintiffs

21 have sought redress for defendants' conduct which violated the rights of Plaintiffs and class

22 members protected by the Fourth and Fourteenth Amendments and by California statute. Some

23 of that conduct arose from deputies' application of illegal written policies while other abuses

24 resulted from systemic violations of written policies so that new de facto policies came into 25 effect. For example, contrary to written policies, authorization forms were altered to create

26 purported strip search consent forms. Deputies participated in cross-gender searches, violating

27 another written policy. And, in contravention of an express safety cell written policy, deputies

28
CASPER, MEADOWS & SCHWARTZ
2121 N. California Blvd., Suite 1020
Walnut Creek, CA 94596 TEL: (925) 947-1147 FAX (925) 947-1131

used safety cell placements to punish arrestees who had been deemed uncooperative.
MARY BULL, et aI., v. CITY AND COUNTY OF SAN FRANCISCO, et al. USDC Case No. C03-1840 CRB
PLAINTIFFS' MEMORANDUM IN OPPOSITION TO MOTION FOR JUDGMENT ON THE PLEADINGS

Page 2

Case 3:03-cv-01840-CRB Document 124 Filed 03/19/2004 Page 8 of 21

1 Promulgation of new written policies, as an isolated act, provides no assurance that the abuses

2 which prompted this litigation will not continue. Only an injunction has the potential to create

3 that beneficial result.

4

Defendants assert that their motion carves out an "autonomous" question, distinct from

5 the rest of the litigation. Not so. Contrary to Defendants' assertion, even a ruling in their favor

6 will not preclude litigation by those harmed by unconstitutional conduct of Department

7 personnel occurring after January 2004. Rased on the written policies alone, the Court cannot

8 accurately determine whether these written policies "vill actually dictate the practices ofjail

9 personnel. The Court should not assume that its approval of the new written policies will
thwart future litigation. And, of course, the Court's ruling will not bind future litigants (and of 10
course not those within the instant class) allegedly harmed by post January 2004 Department 11
practices and de facto policies. A partial judgment on the pleadings for declaratory relief is 12
inappropriate here. Questions of fact about the effect of the new policies on actual practice and
13
the factual basis for the new policies mandating blanket strip searches on certain classes of
14
arrestees remain to be answered. Moreover, such an order will not foreclose future litigation 15
based, as is the instant case, on illegal Departmental conduct.
16 Many of the policies themselves are also suspect. The Ninth Circuit has condemned
17 blanket overbroad policies which consign entire categories to visual body cavity searches in the
18 absence of individualized reasonable suspicion. No Ninth Circuit case has held that officials

19 may search pre-arraignment arrestees based solely on the nature of the arrest or on an arrestee's

20 criminal history. Apart from citations to cases which Defendants often misread, Defendants

21 offer no basis for consigning entire groups of arrestees to visual body cavity searches absent

22 individualized reasonable suspicion.

23

While notice pleading rules permitted Defendants to file a barebones Cross-Complaint

24 for Declaratory Relief, that pleading, even with the attached new regulations, gives the Court

25 scant basis on which to enter partial judgment for Defendants. In determining the legality of

26 jail policies infringing on arrestees' Fourth Amendment and Due Process rights, courts must
27 conduct a "delicate balancing" between "institutional needs and objectives" and the

28
CASPER, MEADOWS & SCHWARTZ
2121 N. California Blvd., SUite 1020
Walnut Creek, CA 94596 TEL: (925) 947-1147 FAX (925) 947-1131

"constitutionulliberties" of persons suspected of crime. Kennedy v. Los Angeles Police Dept.,

MARY BULL, et aI., v. CITY AND COUNTY OF SAN FRANCISCO, et al. USDC CC:l~e Nu. C03-1840 CRB
PLAINTIFFS' MEMORANDUM IN OPPOSITION TO MOTION FOR JUDGMENT ON THE PLEADINGS

Page 3

Case 3:03-cv-01840-CRB Document 124 Filed 03/19/2004 Page 9 of 21

1 901 F.2d 702, 711 (9th Cir. 1989). That balancing cannot be done within the confines of the

2 Cross-Complaint in which Defendants seek a declaratory judgment.

3

To judge the merit of the written policies the Court must go beyond the pleadings to

4 determine the justification for the new policies, particularly those permitting strip searches for

5 entire classes of individuals. This task is necessary given the Ninth Circuit's recognition that
6 there are "few exercises of state authority that intrude on citizen's privacy and dignity as 7 severely as visual anal and genital searches." Fuller v. M.G. Jewelry, 950 F.2d 1437,1445 (9th
8 Cir. 1991). Among the questions which require answers are: What was the jails' history of
finding weapons and contraband during visual body cavity searches of those arrested under the 9
10 prior policy? Have deputies ever discovered contraband during visual body cavity searches on those transferred from other institutions? What alternative procedures exist to detect weapons
11
or contraband short of visual body strip searches? What information do Sheriff s Department
12
personnel possess when deciding whether to subject an arrestee to a visual body cavity search? 13
How have Sheriff s Department personnel actually cOlnplied with prior written policies which 14
protected arrestees from improper strip searches or placements in safety cells? Will citizen 15
arrests be deemed a valid basis for a strip search? How does the Sheriff s Department classify 16
crilnes of violence? Defendants' papers provide no answers to these questions. Without the
17 answers to these questions, this Court cannot determine if the intrusion on pre-arraignment
18 arrestees' rights is warranted given the institution's security needs against which the arrestees'
19 rights must be weighed. Absent factual support for the dilution of Fourth Amendment rights
20 occasioned by subj ecting arrestees to visual body cavity searches, the Court has an insufficient
21 basis on which to judge the constitutionality of the policies. Pending a more robust
22 development of the record, the Court must deny Defendants' motion. United States ofAmerica
23 v. Braren, 338 F.3d 971,975 (9th Cir. 2003); United States. v. State of Washington, 759 F.2d

24 1353, 1357 (9th Cir. 1985) (en banc);Robinson Band ofPomo Indians ofRobinson Rancheria v.

25 Babbitt (N.D. Cal. 1998) 1998 WL [Westlaw] 355580.

26

27

28
CASPER, MEADOWS & SCHWARTZ
2121 N. California Blvd" SUite 1020
Walnut Creek, CA 94596 TEL: (925) 947-1147 FAX (925) 947-1131

MARY BULL, et aI., v. CITY AND COUNTY OF SAN FRANCISCO, et al. USDC Case No. C03-1840 CRB
PLAINTIFFS' MEMORANDUM IN OPPOSITION TO MOTION FOR JUDGMENT ON THE PLEADINGS

Page 4

Case 3:03-cv-01840-CRB Document 124 Filed 03/19/2004 Page 10 of 21

1 ARGUMENT

2 III. 3 4

A PARTIAL JUDGMENT ON THE PLEADINGS ON DEFENDANTS' CROSS-COMPLAINT FOR DECLARATORY JUDGMENT IS INAPPROPRIATE BECAUSE ISSUES OF FACT MUST BE RESOLVED AND BECAUSE A PARTIAL DECLARATORY JUDGMENT WILL NOT TERMINATE THE CONTROVERSY.

5

A. A Judgment On The Pleadings Is Not Warranted If Factual Issues

Remain To Be Adjudicated. 6
"A judgment on the pleadings is properly granted when, taking all allegations in the

7 pleading as true, the moving party is entitled to judgment as a matter of law." Enron Oil

8 Trading & Transportation Co. v. Walbrook Ins. Co., Ltd.,132 F.3d 526,528 (9th Cir. 1997). "A

9 motion for judglnent on the pleadings pursuant to Fed.R.Civ.P. 12(c) is appropriate where the

10 material facts of a case are not in dispute, and a judgment on the merits may be achieved by

11 focusing on the legal issues and agreed facts in the case. If the pleadings do not resolve all of

12 the factual disputes, a trial is more appropriate than a judgment on the pleadings." Roberts v.

13 Rubert v. Ruhrman, Inc. 909 F.Supp. 545, 552 (N.D. Ill. 1995).

14

Defendants have alleged absolutely no facts in their Cross-Complaint that the

15 Department disciplined deputies who formerly violated arrestees' rights, or that deputies have

16 not and will not violate the rights of those arrested after January 2004. Plaintiffs would have

17 denied such allegations and judgment on the pleadings would have been denied ab initio. On

18 the other hand, the absence of such allegations provides the Court with no assurance that

19 adoption of the new written policies will result in protection of arrestees' rights.

20

The Ninth Circuit has explained, "A court may, however, consider certain materials--

21 documents attached to the complaint, documents incorporated by reference in the complaint, or

22
23
24
25
26
27
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CASPER, MEADOWS & SCHWARTZ
2121 N. California Blvd., Suite 1020
Walnut Creek, CA 94596 TEL: (925) 947-1147 FAX (925) 947-1131

matters ofjudicial notice--without converting the motion to dismiss into a motion for summary judgment." United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). Plaintiffs are asking the Court to take judicial notice of the exhibits filed in support of Plaintiffs' Motion for a Preliminary Injunction. Rule 201, Federal Rules of Evidence, United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980); Cardiner v. Provident Life And Accident Insurance Company, 158 F.Supp.2d 1088, 1099 (C.D. Cal. 2001). Plaintiffs do not ask the Court to accept the testimony as tnle, but only to recognize that in papers already before the Court, Plaintiffs allege with

MARY BULL, et al. , v. CITY AND COUNTY OF SAN FRANCISCO, et al. USDC Case No. C03-1840 CRB
PLAINTIFFS' MEMORANDUM IN OPPOSITION TO MOTION FOR JUDGMENT ON THE PLEADINGS

Page 5

Case 3:03-cv-01840-CRB Document 124 Filed 03/19/2004 Page 11 of 21

1 supporting documents that Sheriff s Department personnel consistently violated Department

2 written policies, confirming that factual issues remain to be litigated and that judgment on the

3 pleadings must be denied.

4

B. Declaratory Judgment Must Be Denied When A Party Seeks Only

An Advisory Opinion, When The Issues Are Not Ripe For

5

Adjudication Because The Factual Record Is Incomplete If

Declaratory Relief Will Not Terminate The Controversy.

6 This Court may not exercise Article III jurisdiction when a party seeks only an advisory

7 opinion. The Court's "role is neither to issue advisory opinions nor to declare rights in

8 hypothetical cases." Thomas v. Anchorage Equal Rights Com'n, 220 F.3d 1134, 1138 (9th Cir.

9 2000) (en bane).

10

This Court has discretion to deny declaratory relief if prudential considerations dictate

11 against it. Thus, "even if Article III jurisdiction does exist, a court must refrain from issuing

12 declaratory relief if the matter is not ripe for decision. A case is not ripe if further factual

13 development is required." United States ofAmerica v. Braren, 338 F.3d 971, 975 (9th Cir.

14 2003); Orix Credit Alliance v. Wolfe, 212 F.2d 891, 895-896 (5th Cir.2000). The Ninth Circuit

15 further instructs us that, "Declaratory relief should be denied when prudential considerations

16 counsel against its use ... Declaratory relief should be denied when it will neither serve a

17 useful purpose in clarifying and settling the legal relations in issue nor terminate the

18
19
20
21
22
23
24
25
26
27
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2121 N. California Blvd., Suite 1020
Walnut Creek, CA 94596 TEL: (925) 947-1147 FAX (925) 947-1131

proceedings and afford relief from the uncertainty and controversy faced by the parties." United States. v. State of Washington, 759 F.2d 1353,1357 (9th Cir. 1985) (en bane). See, e.g., Cha-Toine Hotel Apartments Bldg. Corp. v. Shogren, 204 F.2d 256,258 (7 Cir. 1953) (same); Miramax Film Corp. v. Abraham 2003 WL 22832384, at 15 (S.D.N.Y. 2003) (same).
"In fact, the court may, after a full consideration of the merits, exercise its discretion to refuse to grant declaratory relief because the state of the record is inadequate to support the extent of relief sought." State of Washington, supra, at 1356. This Court has refused to grant declaratory relief when final relief is dependent on resolution of factual disputes. In Robinson Band ofPomo Indians ofRobinson Raneheria v. Babbitt (N.D. Cal. 1998) 1998 WL [Westlaw] 355580, plaintiff sought a declaration that it could legally conduct gaming without government permits. Refusing to grant that relief, this Court explained, "It is unlikely that a declaratory

MARY BULL, et aI., v. CITY AND COUNTY OF SAN FRANCISCO, et al. USDC Case No. C03-1840 CRB
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1 relief action would resolve the controversy as to what gambling, if any, the tribes may lawfully
2 conduct. It would be impossible in the absence of a particular factual context for the parties
3 and the Court to imagine all possible class III gambling scenarios and adjudicate which 4 scenarios are lawful." 1998 WL [Westlaw] 355580, at 3.

5 IV. THE STATE OF THE RECORD ON DEFENDANTS' MOTION PRECLUDES THE GRANT OF DECLARATORY RELIEF.

6

The Court cannot gauge the constitutional or statutory validity of the current policies

7 absent a balancing of the harsh intrusion into personal privacy effected by a visual body cavity

8 search against evidence that such degradations are necessary to safe operation of the jails. In

9 determining the legality ofjail policies infringing on arrestees Fourth Amendment and Due

10 Process, this Court must conduct a "delicate balancing" between "institutional needs and

11 objectives" and the "constitutional liberties" of persons suspected of crime. Kennedy, supra,

12 901 F.2d 702, 711 (9th Cir. 1989). "The permissibility of a particular law enforcement practice

13 is judged by balancing its intrusion on the individual's Fourth Amendment interests against its

14 promotion of legitimate governmental interests." Giles v. Ackerman, 746 F.2d 714, 617 (9th

15 Cir. 1984) "The more intrusive the search, the closer governmental authorities must come to

16 demonstrating probable cause will uncover the objects for which the search is being 17 conducted." Mary Beth G. v. City o/Chicago, 723 F.2d 1263, 1273 (ih Cir. 1983).

18

Thus, addressing the LAPD's policy of subjecting all felony arrestees to visual body

19 cavity searches, Kennedy explained that the "critical inquiry is whether the LAPD has a

20
21
22
23
24
25
26
27
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CASPER, MEADOWS & SCHWARTZ
2121 N. California Blvd., SUite 1020
Walnut Creek, CA 94596 TEL: (925) 947-1147 FAX (925) 947-1131

sufficient justification for imposing its blanket policy." The Ninth Circuit invalidated the policy on the ground that the LAPD had failed to produce, in support of its justification, "any documentation (or even assertion) that felony arrestees have attempted to smuggle contraband into the jail in greater frequency than misdemeanor arrestees." 901 F2d at 713.
Plaintiffs remind the Court that those arrestees whose body cavities Defendants wish to search have only been arrested, not even arraigned, much less convicted. In the instant case, virtually none of them was charged. Yet they were subj ect to what the Ninth Circuit has described as "dehumanizing and hmniliating" and Hone of the most grievous offenses against personal dignity and common decency" the "intrusiveness [of which] cannot be overstated."

MARY BULL, et aI., v. CITY AND COUNTY OF SAN FRANCISCO, et al. USDC Case No. C03-1840 CRB
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Page 7

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1 901 F.2d at 711. This dehumanizing experience, then, in effect is the punishment many

2 arrestees receive solely because they are suspected of committing a crime. These descriptions

3 must be given effect or they lose any meaning. Ifbalanced equally against an amorphous claim

4 ofjail security, the descriptions of visual body cavity searches as "grievous offenses" or

5 "dehumanizing" might as well be morphed into "unpleasant" or "uncomfortable."

6

The only way in which the Court can give effect to the accurate harsh descriptions

7 affixed to such searches is by requiring Defendants to sustain their heavy burden of factually

8 justifying the necessity for these blanket policies. Defendants have not offered such

9 justification and must go outside the confines of their Cross-Complaint to do so. Based solely

on the allegations in Defendants' Cross-Complaint and the n~w policies appended to that 10

pleading, the Court cannot confidently balance the dilution of Fourth Amendment rights 11

wrought by a visible body cavity search against the jails' security interests. Therefore, "The 12

state of the record is inadequate to support the extent of relief sought." State of fiVashing tun, 13

supra, at 1356. See, also, Robinson Band ofPorno Indians ofRobinson Rancheria v. Babbitt, 14
supra. 1998 WL 355580, at 3. The Court therefore must dcny Defendants' ITIotion.

15

V. 16

AN ORDER BLESSING THE NEW REGULATIONS WILL NOT RESOLVE THE CONTROVERSY BETWEEN THE PARTIES NOR

PRECLUDE FUTURE LITIGATION; MOREOVER SUBSTANTIAL

17

UNRESOLVED FACTUAL ISSUES TIED TO THE VALIDITY OF THE

NEW REGULATIONS FURTHER COUNSEL DENIAL OF THE

18

MOTION.

19

A. Defendants' Motion Mischaracterizes Plaintiffs' Claims.

20

Defendants support the need for declaratory relief with the following statements:

In their motion for a preliminary injunction, plaintiffs seek to enjoin

21

the current policies and allege an ongoing threat of irreparable harm to

22

plaintiffs pending trial, despite the fact that they base their complaint in

this action entirely on now-superseded policies. Plaintiffs' actual quarrel,

23

therefore, is with stale policies that were at one time applied to individuals

24

who are no longer in the custody of the Sheriff. A declaration from this

Court that the current policies fully comply with applicable law will cabin

25

the current litigation, which Plaintiffs should not be allowed to expand to

26

encompass policies that were not yet in force at the time that their claims

arose.
27

28
CASPER, MEADOWS & SCHWARTZ
~121 N. California Blvd., Suite 1020
lalnu! Creek, CA 94596 TEL: (92G) 947-1147 FAX (925) 947-1131

MARY BULL, et aI., v. CITY AND COUNTY OF SAN FRANCISCO, et 31. USDC Case No. C03-1840 CR~
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1 Defendants' Memorandum at 6:20-27. Defendants' characterization of the litigation is just

2 plain wrong. Plaintiffs do not base their entire complaint on the "superseded policies." The

3 First Amended Cross Complaint does not cite a "written policy" as the sole basis for the

4 Complaint. While the Motion for Preliminary Injunction addresses some of the old policies, it

5 asks that the illegal practices of the Sheriffs Department be enjoined. Examining these

6 pleadings we find:

7

1. Plaintiffs' First Amended Complaint

8

On January 12, 2004, Plaintiffs filed a First Amended Class Action Complaint, adding

seven additional named Plaintiffs to Ms. Bull and Mr. Zem. The First Amended Complaint 9

does not refer to any particular written policies by number. It does describe the strip searches 10

and, where applicable, the cold room placements of the named Plaintiffs. The First Amended 11
Complaint seeks "declaratory and injunctive relief declaring illegal and enjoining, prelilllinarily 12
and permanently, defendants' policies, practices, and customs of subjecting pre-arraignment 13
detainees to strip and visual body cavity searches without having a reasonable suspicion that 14
such searches would be productive of contraband or weapons and of using the "cold rooms" to 15
compel compliance or to punish detainees." (emphasis added.)
16 Though several abuses alleged in the pleadings arose from application of policies as
17 written, the pleadings allege many practices and customs in variance with and in violation of

18 the written Department policies then in effect such as those forbidding cross-gender searches,

19 forbidding use of safely cells to discipline recalcitrant arrestees, and requiring that those in

20 safety cells receive safety cell garments. Again, the allegations did not focus on the "written

21 policies," but on the abusive unconstitutional practices which permeated the jail system. The

22 new policies appended to Defendants' Cross-Complaint restate many of the same directives

23 which the Department habitually violated, precipitating this litigation.

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2. Plaintiffs' Motion For A Preliminary Injunction

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On January 21, 2004, Plaintiffs filed their Motion for Preliminary Injunction to be heard

26 at the same time as the Motion for Judgment on the Pleadings. While challenging some of the

27 Department's written policies (such as strip searching all arrestees who are to be "classified"

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Walnut Creek, CA 94596 TEL: (925) 947-1147 FAX (925) 947-1131

and strip searching all arrestees placed in safety cells), the Motion seeks to enjoin the
MARY BULL, et aI., v. CITY AND COUNTY OF SAN FRANCISCO, et al. USDC Case No. C03-1840 CRB
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1 unconstitutional conduct of Department personnel and supervisory officials. The testimony

2 supporting Plaintiffs' motion describes a pattern and practice of Department personnel violating

3 written policies governing visual body cavity searches and the placement of detainees in safety

4 cells. 1 5 6

B. A Declaratory Relief Judgment Will Not Resolve The Controversy Nor Preclude Future Litigation; Additional Facts Must Be Resolved Before The Court Can Confidently Decide Whether Declaratory Relief Is Appropriate.

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The premise of Defendants' motion fails. Plaintiffs' First Amended Class Complaint

8 and Motion for Preliminary Injunction seeks to stop Defendants' illegal practices, both those 9 which conform to illegal written policies and those which violate them. To the extent that

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Plaintiffs have asked the Court to take judicial notice of the First Amended Class Complaint and the evidence Plaintiffs have submitted in support of the request for preliminary injunctive relief to emphasize the point that Plaintiffs' allegations (supported by Defendants ' testimony) of systemic violations of prior written polices create at a minimum the factual question of whether Defendants' personnel will adhere to the new policies and whether Defendants' supervisory personnel will enforce the policies. The Court need not accept the truth of this testin10ny, simply the fact that it exists, creating at a minimum substantial factual issues which the Defendants' prayed"for Order cannot resolve.
For example, although the written regulations in effect prior to January 2004 required that booking strip searches of those falling outside the Strip Search Criteria of Section II of Procedure E-03 be predicated on the reasonable suspicion that the arrestee possesses contraband and that that reasonable suspicion be documented on a written authorization form, Department personnel altered the form so that arrestees could "consent" to visual body cavity searches absent meeting the criteria for a booking strip search laid out in the Defendants' own policy. Deposition of Richard Dyer, at 54:9-12, 62:24-64:1; April 11, 2003 Memo to CJ9 Personnel from Captain Richard Dyer, Bull CCSF 00028. Mary Bull was asked to sign such a consent form but refused. Declaration of Mary Bull ~~ 5-7. The altered forms were "in common use." Deposition of Kevin McConnell, 38:22-39:3.
Although Procedure E-03 required same sex searches, Mary Bull has stated that male deputies witnessed her strip search. Declaration of Mary Bull, ~ 10.
Procedure E-05 "Safety Cell Use" clearly stated that safety cells were not to be used for disciplinary or punitive purposes. Deputy Humphrey stated that it was the practice at CJ9 to place prisoners who refuse to consent to a strip search in a safety cell. Deposition of Suzette Humphrey, at 82: 14-25, 83: 1. Mary Bull testified that her refusal to consent to a strip search landed her in a safety cell twice. Bull Declaration, ~~ 8-11, 13-15. Alexis Bronson has stated that he was placed in a safety cell for not coughing loudly enough during a strip search, Miki Mangosing for attempting to talk to her friend in an adjacent cell, and Michael Marron for removing a prison-issued wristband. Declaration of Alexis Bronson, ~~ 6-7, Declaration of Miki Mangosing, ~~ 3-5, Declaration of Michael Marron, ~~ 4-5.
While the criteria in the old and new policies mandated strip searches of those charged with drugs, weapons or violence, Sheriff s Department employees testified that there was no list of eligible charges. McConnell Deposition, 34:2-6. No evidence exists that actual practices will be different under the new written policies.

MARY BULL, et aI., v. CITY AND COUNTY OF SAN FRANCISCO, et al. USDC Case No. C03-1840 CRB
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1 Defendants have in the past and continue to violate constitutional and statutory rights possessed

2 by arrestees, Defendants will be liable, regardless of the text of the written policies. Thus, a

3 declaratory judgment will not resolve claims of arrestees whose rights were or will be violated

4 after January 2004. In any event, even should the Court enter a declaratory judgment, Plaintiffs

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would still be free at trial to prove that deputies consistently violated the Department's written policies, both those in effect prior and subsequent to January 2004.
Shakespeare's observation that "what's past is prologue," (The Tempest, Act II, scene 1), is truly apt here. The record before the Court is replete with allegations and evidence of violations of prior Department policies which appeared to offer at least some protection to arrestees. Defendants ask the Court to accept on faith that deputies applying the current regulations are protecting and will continue to protect arrestees' constitutional and statutory rights. Absent an evidentiary inquiry the Court cannot declare that the new written policies will offer any more coverage of arrestees' rights than the "safety garments" sometimes given arrestees placed in safety cells. Even those parts of the new regulations which appear to pass constitutional muster may well be honored solely in the breach. Only a full factual record - not Defendants' arguments will enable the Court to judge whether even those new policies which appear facially valid will stand the test oftinle or unfoliunately resel11ble the Enlperor's New Clothes.
Hence, declaratory relief in this case "will neither serve a useful purpose in clarifying and settling the legal relations in issue nor terminate the proceedings and afford relief from the uncertainty and controversy faced by the parties." State a/Washington, supra, 759 F.2d 1353 at 1357. The Court must deny Defendants' motion.

VI. DECLARATORY RELIEF ALSO IS INAPPROPRIATE BECAUSE MANY OF THE NEW WRITTEN POLICIES VIOLATE THE CONSTITUTION.
A. Visual Body Cavity Searches Are Impermissible Absent
Individualized Reasonable Suspicion That An Arrestee Has Secreted Weapons Or Contraband In His Or Her Person.
The Ninth Circuit has repeatedly used the harshest adjectives in describing the hann
wrought by body cavity searches carried out by uniformed governnlent officials on naked
detainees. Giles v. Ackerman, 746 F.2d 714, 617 (9th Cir. 1984) observed that strip searches

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1 caused the "detainee's privacy [to be] invaded in a frightening and humiliating manner."

2 Kennedy v. Los Angeles Police Dept., 901 F.2d 702, 711 (9th Cir. 1989) concluded that "[t]he

3 intrusiveness of a body-cavity search cannot be overstated. Strip searches involving the visual

4 exploration of body cavities is dehumanizing and humiliating." Kennedy also noted that '''body

5 cavity searches .. [of] inmates represent one of the most grievous offenses against personal

6 dignity and common decency.'" ld. (quoting from Justice Marshall's dissent in Bell v. Wolfish, 7 441 U.S. 558, 576-577 (1979)). FuLler v. M.G. JeweLry, 950 F.2d 1437,1445 (9th Cir. 1991)

8 retnarked that "few exercises of state authority intrude on citizen's privacy and dignity as
9 severely as visual anal and genital searches." These descriptions are more than words cited
10 from West's Federal Reporter. They accurately describe the grave intrusion on Fourth
Amendtnent protected privacy rights caused by visual body cavity searches. 11
Recognizing the grievous character of these intrusions, the Ninth Circuit has condemned 12
overbroad blanket strip search policies because such policies do not require the individualized 13
reasonable suspicion that the arrestee possesses weapons or other contraband. Reviewing prior
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decisions, the Ninth Circuit stated in Fuller, supra, that "[t]hese decisions suggest that strip and 15
body cavity searches of detainees may be conducted based on reasonable suspicion only where 16
such searches are necessary to protect the overriding security needs of the institution--that is, 17
where officials have a reasonable suspicion that a particular detainee harbors weapons or 18
dangerous contraband." 950 F.2d at 1447. (emphasis added.) "[T]he permissibility of a
19 particular law enforcement practice is judged by balancing its intrusion on the individual's
20 Fourth Amendment interests against its promotion of legitimate governmental interests." Giles
21 v. Ackerman, supra, 746 F.2d at 617.

22

In explaining application of the reasonable suspicion standard, Kennedy noted that"

23 'Reasonable suspicion may be based on such factors as the nature of the offense, the arrestee's

24 appearance and conduct, and the prior arrest record.'" 901 F.2d at 716, citing Giles v.

25 Ackerman, supra, 746 F.2d at 617. Kennedy, however, did not state that anyone of these

26 factors, standing alone, necessarily would give rise to the reasonable suspicion necessary to

27 justify the strip search. Hence, "the classification of the offense in some cases might inform the

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2121 N. California Blvd., SUite 1020
Walnut Creek, CA 94596 TEL: (925) 947-1147 FAX (925) 947-1131

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1 presence of suspicion, but it does not inform the level of suspicion required." Kennedy, supra,

2 901 F.2d at 716.

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The danger inherent in blanket policies covering an entire classification of individuals is

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that it runs the substantial danger of overbreadth, casting many within its net who, if not stripsearched, will pose no threat to jail security. Because visual body cavity searches are considered "one of the most grievous offenses against personal dignity and common decency harm which befalls those subject to such searches" (Kennedy, Y01 F.2d at 711), blanket classification should be avoided except when it is narrowly focused. As Kennedy noted, "a ham-handed approach to policy making runs the serious risk of infringing on detainees' constitutional rights." 901 F2d at 713.
B. With No Factual Basis, The Strip-Search Policies Contain
Overbroad Classifications And Other Defects Which Preclude Declaratory Relief. Plaintiffs agree that "[rJeasonable suspicion may be based on such factors as the nature of the offense, the arrestee's appearance and conduct, and the prior arrest record" Kennedy, supra, 901 F_2d at 716. Kennedy, however, does not hold that anyone of the factors, standing alone, necessarily provides the individualized reasonable suspicion necessary to support the intrusion. Blanket policies, proffered with no justification, are suspect. Thus, Kennedy invalidated the blanket strip search of all felons on the grounds that the LAPD had failed to produce, in support of its justification, "any documentation (or even assertion) that felony arrestees have attempted to smuggle contraband into the jail in greater frequency than misdemeanor arrestees." 901 F.2d at 713. Here, Defendants have failed to allege any factual basis demonstrating that the blanket classifications are necessary to protect jail security. No allegation exists in the CrossComplaint, for example, that those arrested for drugs, weapons or violence have a propensity to secret weapons or contraband in their person. Mere arrest for an alleged crime involving drugs,
weapons or violence cannot, without nlore, give rise to a reasonable suspicion that the arrestee intends to smuggle contraband into the facility. As the court noted in Giles v. Ackerman, supra, "arrest and confinement in the Bonneville County Jail are unplanned events, so the [strip

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1 search] policy could not possibly deter arrestees from carrying contraband." 746 F.2d at 617.

2 The question is not whether those arrested for weapons or violence, for example, may pose

3 sufficient security threats to require particular housing, but whether such individuals, by their

4 membership in a particular class of arrestees, and regardless of the circumstances surrounding

5 the actual arrest, evidence a likelihood that they possess contraband or weapons which can only

6 be detected via a visual body cavity search.

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Moreover, the policy Inandating visual body cavity searches of those charged with

8 crimes of "violence" is terribly overbroad. The new policies contain no definition of violent

9 crimes. Thus certain crimes, which n1ay appear to be crimes of violence are not necessarily in

10 that category. For example, battery does not necessarily involve violence, since even the

slightest touching is sufficient to support a conviction for the offense. See, e.g., People v.
11
Rocha (1971) 3 Ca1.3d 893, 899 ft. 12,92 Cal.Rptr. 172 ("The least unprivileged touching may
12 constitute a criminal battery. 'In other words, force against the person is enough, it need not be
13 violent or severe."'); People v. Longoria (1995) 34 Ca1.App.4th 12,40 Cal.Rptr.2d 213, ("[t]he
14 word 'violence' has no real significance ... ' it has long been established ... that 'the least
15 touching' may constitute battery.' " ).
16 The absurdity of such blanket classification is evident in the case of Lisa Gialllpaoli.
17 Even assuming the charges were true, how can an arrest for allegedly unleashing a dog on

18 another person give rise to a reasonable suspicion that the arrestee has placed weapons (i.e.

19 another animal) in her body cavity?

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Moreover, the policy makes no distinction between those arrested with probable cause

21 and those arrested based on a citizen's arrest. Hence, those brought into the jails due to

22 malicious citizens' complaints by enemies, ex-lovers, etc. and usually released without being

23 charged, still must face the harm wrought by a visual body cavity search. In Corcoran v.

24 Fletcher, 160 F.2d 1085 (C.D. Cal. 2001), the court held that a city's policy of substituting

25 citizen's arrests for probable cause violated the Fourth Amendment. Of course, those arrested

26 in error for crimes of drugs, weapons or violence also must suffer visual body cavity searches.

27 The new policies afford no protection for such individuals.

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MARY BULL, et aI., v. CITY AND COUNTY OF SAN FRANCISCO, et al. USDC Case No. C03-1840 CRB
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1

Similarly no allegations in the Cross-Complaint support the policy that all those arrested

2 or convicted in the prior five years for crimes involving drugs, weapons or violence must be

3 subject to a visual body cavity search. No documentation exists, nor may it exist on a motion

4 for judgment on the pleadings, that such arrestees, by virtue of prior arrests or even convictions,

5 have a propensity to secret contraband in their orifices. The same overbreadth taints the policy

6 mandating visual body cavity searches of those arrested for probation and parole violations. 7 Watt v. City ofRichardson Police Department 849 F2d 195,198 (5th Cir, 1988)

8

The current written policies are also defective because they make no provision

9 excluding those awaiting bail from the visual body cavity search. Given the recognized

10 humiliation of such searches, no reason exists why arrestees should not be given 23 hours to

post bail and access to a telephone to arrange such release. Otherwise, a visual body cavity 11

search reInains punislunent for those unable to prolnptly post bail. In the SaIne vein, no one
12
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C. The Safety Cells Policy Is Also Flawed. 14
The safety cell policy is defective, too. No one should be placed in a safety cell unless a 15
qualified professional determines that such placement is necessary because the person is a
16
danger to himself. If an arrestee is a danger to others, the arrestee ean be single celled in a

17 normal cell. Moreover, detention in a safety cell must be premised on an individual's particular

18 circumstances. Nonetheless, the perceived danger an individual poses to others provides an

19 insufficient basis to strip search an individual laced in a safety cell - once alone, that arrestee

20 poses no threat to others. In any event, no individual should be subjected to a visual body

21 search absent an individualized reasonable suspicion that the search is necessary to protect the

22 individual.

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Whatever defects may exist in the strip search policy, the main point is this: the Court

24 has an insufficient factual record on which to declare the constitutionality of the current

25 policies. For that reason, without more, the Court must refuse to enter judgment approving any

26 of the current strip policies.

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1 VII. CONCLUSION

2

Defendants' Motion For Declaratory Relief is not ripe for adjudication. Assessment of

3 the new written policies requires a far more factual development than that presented in

4 Defendants' papers. Moreover, the judgment Defendants seek will not terminate the

5 controversy. Defendants offer no assurance that these new policies will be enforced. More

6 significantly, issuance of the Order will not preclude individuals who have been harmed by 7 unconstitutional practices from seeking relief. The Court must deny Defendants' motion for 8 judgment on the pleadings.

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11 Dated: March 19,2004 12
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CASPER, MEADOWS & SCHWARTZ Attorneys for Plaintiff

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MARY BULL, et aI., v. CITY AND COUNTY OF SAN FRANCISCO, et al. USDC Case No. C03-1840 CRB
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1 DENNIS J. HERRERA, State Bar #139669

City Attorney

2 JOANNE HOEPER, State Bar #114961

Chief Trial Attorney

3 INGRID M. EVANS, State Bar # 179094

DAVID B. NEWDORF, State Bar #172960

4 SHERRI SOKELAND KAISER, State Bar #197986

ROBERT A. BONTA, State Bar #202668

5 Deputy City Attorneys

Fox Plaza

6 1390 Market Street, Sixth Floor

San Francisco, California 94102-5408

7 Telephone: (415) 554-3884

Facsimile: (415) 554-3837

8 E-Mail:

ingrid.evans@sfgov.org

9 Attorneys for Defendants
10 CITY AND COUNTY OF SAN FRANCISCO, SAN FRANCISCO SHERIFF'S DEPARTMENT
11 and SAN FRANCISCO COUNTY SHERIFF MICHAEL HENNESSEY
12

13

UNITED STATES DISTRICT COURT 14

NORTHERN DISTRICT OF CALIFORNIA 15

MARY BULL, JONAH ZERN, LISA 16 GIAMPAOLI, MARCY CORNEAU,
ALEXIS BRONSON, MICKY 17 MANGOSING, CHARLI JOHNSON,
LEIGH FLEMING, LAURA 18 TIMBROOK, and all others similarly
situated, 19
Plaintiffs, 20
vs. 21

Case No. C03-1840 CRB

DEFENDANTS' OPPOSITION TO MOTION FOR PRELIMINARY INJUNCTION

Hearing Date: Time: Place: Judge:

April 9, 2004 10:00 a.m. Courtroom 8, 19th Fl. Hon. Charles R. Breyer

CITY AND COUNTY OF SAN 22 FRANCISCO, SAN FRANCISCO
SHERIFF'S DEPARTMENT, SAN 23 FRANCISCO COUNTY SHERIFF
MICHAEL HENNESSEY, IN HIS 24 INDIVIDUAL AND OFFICIAL
CAPACITY, AND SAN FRANCISCO 25 COUNTY SHERIFF'S DEPUTIES DOES
1 THROUGH 150, 26

Defendants. 27

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OPPOSITION TO MOTION FOR PRELIM. INJ. CASE NO. C03-1480 CRB

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1

TABLE OF CONTENTS

2 TABLE OF AUTHORITIES ......................................................................................................... iii

3 INTRODUCTION ...........................................................................................................................1

4 STATEMENT OF FACTS ..............................................................................................................1

5 I. THE SHERIFF HAS ABANDONED THE OLD POLICIES

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GOVERNING SEARCHES AND THE USE OF SAFETY CELLS AND

ENACTED NEW POLLICIES THAT MOOT THE ISSUES RAISED IN

7

PLAINTIFFS' COMPLAINT ..................................................................................1

8

A. The New Search Policy................................................................................2

9

B. The New Safety Cell Policy.........................................................................3

10 II. THE NEW POLICIES REFLECT CAREFUL AND APPROPRIATE

11

BALANCE BETWEEN THE RIGHTS OF PRISONERS AND THE

SECURITY NEEDS OF THE JAILS......................................................................4 12

III. IMPLEMENTATION OF THE NEW POLICIES ..................................................6 13

LEGAL ARGUMENT.....................................................................................................................7 14

15

I. PLAINTIFFS FAIL TO MEET THE TWO REQUISITES FOR PRELIMINARY INJUNCTIVE RELIEF ...............................................................7

16 A. Plaintiffs Have Not and Cannot Show Irreparable Injury............................7

17 1. Plaintiffs Cannot Show Irreparable Injury Because The

18

Sheriff Has Abandoned The Policies Challenged By

Plaintiffs. ..........................................................................................7 19

20

2. Plaintiffs Lack Standing To Seek Injunctive Relief Because They Face No Imminent Harm. .......................................................9

21 B. Plaintiffs' Request Also Fails Because They Cannot Demonstrate a

22

Likelihood of Success on the Merits..........................................................10

23

1. Plaintiffs Have Not Challenged the New Policies .........................10

24

2. The Sheriff's New Policies Comply With Federal and State

Law. ...............................................................................................11 25

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a. The New Search Policy Is Valid Under Federal and State Law. ..........................................................................11

27 b. The New Search Policy Comports With California

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Law. ...................................................................................15

OPPOSITION TO MOTION FOR PRELIM. INJ.

i

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1

3. The New Safety Cell Policy Satisfies Federal and State Law. ...............................................................................................16

2 a. Plaintiffs untimely effort to inject new claimants

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into this lawsuit must be rejected and the allegations

of these new claimants cannot be considered in this

4

motion. ...............................................................................18

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b. Plaintiffs’ factual arguments in support of their

6

motion are misplaced – the Sheriff never had a policy of placing inmates in safety cells for

7

punishment. ........................................................................18

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II. PLAINTIFFS' CANNOT SHOW THAT THEIR POLICY

PREFERENCES SHOULD OVERRIDE THE SHERIFF'S LAWFUL

9

EXERCISE OF DISCRETION..............................................................................20

10 CONCLUSION..............................................................................................................................23 11

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OPPOSITION TO MOTION FOR PRELIM. INJ.

ii

CASE NO. C03-1480 CRB

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1

TABLE OF AUTHORITIES

2

3

4

5

6

7

8

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10

11

12

13

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16

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21

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OPPOSITION TO MOTION FOR PRELIM. INJ.

iii

CASE NO. C03-1480 CRB

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1

INTRODUCTION

2

Plaintiffs’ Motion for Preliminary Injunction asks this Court to engage in a meaningless

3 exercise. Plaintiffs seek to enjoin polices that are no longer in effect. On January 21, 2004, the

4 Sheriff enacted new search and safety cell policies that supercede the policies challenged by

5 plaintiffs in their complaint. Plaintiffs were informed weeks in advance that the Sheriff intended

6 to enact new policies. They declined the opportunity to review the new policies before they were

7 promulgated and instead rushed to file their preliminary injunction motion on the very day the

8 new policies took effect. Then, even though they had over a month to file an amended motion

9 for preliminary injunction that could have been heard on April 8 and would have addressed the

10 new policies, they did nothing. A fair inference is that plaintiffs have no objection to the new

11 search and safety cell policies and concede that they comply with federal and state law.

12

Plaintiffs may have tactical reasons for doggedly continuing to pursue their motion for

13 preliminary injunction. But the motion is not reasonably directed toward protecting them from

14 future harm. Plaintiffs are not currently in custody in the San Francisco jails and, if at some

15 point one of them is rearrested, she or he will be subject to the new search and safety cell

16 policies. Plaintiffs' motion therefore should be denied. It is moot and plaintiffs cannot show any

17 threat of irreparable injury. Plaintiffs also cannot demonstrate a likelihood of success on the

18 merits. The new search and safety cell policies comply with the law and plaintiffs do not

19 challenge the new policies. Finally, plaintiffs' proposed expansions of the policies are simply an

20 effort to substitute their personal, and unsupported, policy preferences for the Sheriff's

21 discretionary judgment. But the Sheriff, not plaintiffs, is authorized by law to set policy in the

22 jails. 23

STATEMENT OF FACTS

24 I. 25 26

THE SHERIFF HAS ABANDONED THE OLD POLICIES GOVERNING SEARCHES AND THE USE OF SAFETY CELLS AND ENACTED NEW POLLICIES THAT MOOT THE ISSUES RAISED IN PLAINTIFFS' COMPLAINT

27

On January 21, 2004, Sheriff Hennessey issued revised polices governing "Searches"

28 (See Exhibit A to the Declaration of Sheriff Hennessey ("Hennessey Decl.") and "Safety Cell

OPPOSITION TO MOTION FOR PRELIM. INJ.

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1 Use" (See Exhibit B to the Hennessey Decl.). These new policies supersede and replace the old

2 policies on the same subjects. (See Hennessey Decl., ¶¶1-4.)

3

The new Search and Safety Cell policies were the result of many weeks of work by the

4 Sheriff and his staff. (Declaration of Undersheriff Jan Dempsey ("Dempsey Decl."), ¶4-19.)

5 Plaintiffs' counsel was informed in writing on January 7, 9 and 16, 2004, and orally in mid-

6 December 2003, at least four weeks before the new policies were issued, that the Sheriff

7 intended to issue new policies that would address plaintiffs' concerns. (See Exhibits J, K and L

8 to the Declaration of Ingrid Evans ("Evans Decl."), ¶2.) Plaintiffs' counsel was offered an

9 opportunity to review the policies prior to enactment. (Id.) Counsel declined to take advantage

10 of this opportunity. (Id.¸¶3.) Instead, they rushed to file this motion on the very day that they

11 knew the Sheriff would be issuing the new policies. (Id.)

12

The following is a summary of the relevant sections of the new “Searches” and “Safety

13 Cell Use” policies:

14

A. The New Search Policy

15

A. Prior to Intake/Booking

16

1. A prisoner may be strip searched prior to booking only if:

17

a. There is reasonable suspicion and supervisor approval on the Strip Search

18 Authorization Form prior to the search; or

19

b. Supervisor approval is not required if the prisoner:

20

1. Is charged with a crime of drugs (except when arrested for violation of Health and

21 Safety Code 11550 only), weapons and/or violence; or

22

2. Has been convicted or arrested within the last 5 years for drugs, (except when

23 arrested for violation of Health and Safety Code 11550 only), weapons and/or violence, as

24 documented in the criminal history information system.

25

3. Is charged under California Penal Code Section 3056 or booked with a State

26 Parole Hold; or

27

4. Is charged under California Penal Code Section 1203.2; or

28

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1

5. Is in the custody of another agency and is booked into the jail for safekeeping,

2 including a prisoner booked on a U.S. Marshall hold.

3

B. At Intake/Booking

4

1. Prisoners may be strip searched at the time of booking only if:

5

a. There is articulable reasonable suspicion and supervisor approval on the Strip

6 Search Authorization Form prior to the search; or

7

b. The prisoner is:

8

1. Is charged with a crime of drugs (except when arrested for violation of Health and

9 Safety Code 11550 only), weapons and/or violence; or

10

2. Has been convicted or arrested within the last 5 years for drugs (except when

11 arrested for violation of Health and Safety Code 11550 only), weapons and/or violence, as

12 documented in the criminal history information system; or

13

3. Is charged under California Penal Code Section 3056 or booked with a State

14 Parole hold; or

15

4. Is charged under California Penal Code Section 1203.2; or

16

5. Is in the custody of another agency and is booked into the jail for safekeeping,

17 including a prisoner booked on a U.S. Marshall hold.

18

After intake and booking and before sentencing, the new policy permits strip searches

19 only if: (1) there is reasonable suspicion; (2) the inmate was initially eligible for strip search at

20 intake and there is a legitimate reason (such as a security search of the inmates housing unit) to

21 conduct another search; (3) the inmate has been found to possess contraband during a prior

22 search; or (4) the inmate is returning from a work detail, a court-ordered pass, a hospital visit,

23 court appearance, or has had contact visits. There is no longer a policy of strip searching all

24 detainees who are classified, dressed in orange jail clothes, and transferred from intake to a

25 housing facility in the San Francisco County Jail system.

26

B. The New Safety Cell Policy

27

The "General" portion of the new Safety Cell policy limits the use of safety cells to

28 specific situations:

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1

B. Safety cells may be used only under the following circumstances:

2

1. When a prisoner is physically combative or otherwise presents an imminent

3 danger to others.

4

2. When a prisoner is a danger to self, as determined by actions or words, including,

5 but not limited to, physical or mental impairment to the point of falling down, banging his/her

6 head against the wall, making suicidal gestures or threatening to commit suicide.

7

C. The safety cell shall not be used for prisoners who only refuse to be strip-searched

8 or refuse other orders and do not otherwise meet the criteria for safety cell placement above.

9

D. Only Jail Psychiatric Services may determine a prisoner to be gravely disabled.

10

E. In no case shall the safety cell be used for punishment or as a substitute for

11 treatment.

12

The new policy for searching inmates who are to be placed is safety cells, or taking their

13 clothing, states, in relevant part:

14

F. The reason for the safety cell placement will determine whether the prisoner is

15 stripped of clothing.

16

1. In safety cell placements that result because the prisoner is a danger to self or at

17 his/her request, the prisoner will be required to remove all clothing and a strip search will be

18 conducted to ensure the prisoner does not have contraband that poses a threat to his/her safety.

19 The prisoner will immediately be given a safety cell garment and/or safety cell blanket.

20

2. In safety cell placements that result because a prisoner is a danger to others, the

21 prisoner will be pat searched before being placed in the safety cell. Clothing will not be removed

22 nor will a strip search be conducted unless the supervisor approving the placement can articulate

23 reasonable suspicion that the prisoner has contraband hidden that poses a risk to prisoners, staff,

24 or self.

25 II. 26

THE NEW POLICIES REFLECT CAREFUL AND APPROPRIATE BALANCE BETWEEN THE RIGHTS OF PRISONERS AND THE SECURITY NEEDS OF THE JAILS

27

The new policies are the product of an extensive review of the former policies and are

28 intended to better address the balance between institutional security and current legal

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1 developments. (See Dempsey Decl., ¶8.) Setting policies for the county jails is a complex task

2 that requires the expertise and experience of persons knowledgeable about jail administration and

3 the specific needs of the San Francisco County jails as well as the current state of the law. (Id.)

4 Both the old and new policies balance concerns with protecting the individual rights of the

5 inmates with the critical need to prevent the introduction of drugs, weapons, and other

6 contraband into the jail. (Id., ¶¶8-10.)

7

Drugs and weapons are regularly found on inmates during routine strip searches. (See

8 Id., 11-12 and Exhibits 3 and 4 to Dempsey Decl.) The new search policy provides more

9 restrictive authority to search inmates and will lead to a higher incidence of illegal contraband in

10 the jails. (See Dempsey Decl., ¶12.) Therefore, in order to implement the new policy,

11 Undersheriff Dempsey was required to participate in lengthy meet and confer sessions with the

12 Deputy Sheriff’s Association1 to obtain its acceptance of the new policy. (Id.) The DSA is

13 concerned about the safety issues involved in the new policy. Their concerns are not speculative

14 and are documented in the summary of four years of contraband recovered by the Sheriff’s K-9

15 dog unit. (See Id., and Exhibit 7 to Dempsey Decl.)

16

In addition to the problem of contraband in the jails, the new safety cell policy was also

17 discussed with the DSA. The Department maintains safety cells in the county jails for the

18 temporary housing of inmates who pose a risk of harm to themselves or others. (Id.. ¶ 14.) These

19 are small locked rooms that have built-in toilets and are otherwise without furnishings. (Id.)

20

Under the old safety cell policy, all inmates placed in a safety cell had their clothing

21 removed for safety purposes. (See Exhibit 3 to Dempsey Decl.) The new policy allows inmates

22 that are determined to be a danger to others to keep their clothing. However, inmates that are

23 determined to be a danger to themselves will have their clothing removed. (See Exhibit 2 to

24 Hennessey Decl.) As a safety precaution it is very important that clothing be taken from persons

25 placed in a safety cell because they are deemed to be a danger to self. (See Dempsey Decl., ¶17.)

26

27

1 The DSA represents approximately 850 members who have a vested interest in the safety and security of the jail environment.

28

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1 The reason for this is that suicidal inmates can and do use their clothing to attempt to kill

2 themselves. (See Id. and Exhibit 6 to Dempsey Decl.) Undersheriff Dempsey provided four

3 examples in her declaration to demonstrate the need to remove an inmate’s clothing who is

4 placed in a safety cell. In summary, inmates in safety cells have used their underwear to attempt

5 to hang themselves, used feminine hygiene products to attempt to kill themselves, and have

6 hidden sharp objects and drug paraphernalia in their underwear. (See Id.). 7 III. IMPLEMENTATION OF THE NEW POLICIES

8

Sheriff Hennessey states under oath that he has abandoned the old search and safety cell

9 policies and has no intention of reverting to the old policies. (See Hennessey Decl., ¶¶ 1-4 and

10 Dempsey Decl., ¶¶ 4-25.) There are very significant costs and burdens associated with creating

11 and implementing a new policy and ensuring that the deputies receive training in the new policy.

12 (Dempsey Decl., ¶4-19.) It is very time-consuming to review the old policies and draft proposed

13 changes. (Id., ¶ 8.) As Undersheriff Dempsey explained in her declaration and as discussed

14 above, drafts of the policies were circulated widely to jail supervisory staff and were the subject

15 of numerous meetings and meet and confer sessions. (Id., ¶ 8.) There is also a very significant

16 expenditure of time to train the supervisory and line staff. (Id., ¶¶ 18-19.) At the Sheriff’s 17 direction, Undersheriff Dempsey ensured that 122 supervisors received three hours of training2

18 on the new search and safety cell housing policies on January 27 and 29, 2004. (Id.) Roughly

19 450 deputy sheriffs received daily training notification on these same policies for approximately

20 eight days. (Id.) As a follow-up to instructional training, on February 13, a summary of the

21 search and safety cell use policy revisions as a reference guide for all personnel. (See Id. and

22 Exhibit 7 to Dempsey Decl.) In addition, a directive that summarized the new policies was also

23 issued on December 24, 2003, before the new policies were finalized, in order to implement the

24 policies before the holiday season. (See Dempsey Decl., ¶ 9 and Exh. 8 to Dempsey Decl.) The

25

26

2 The training of supervisors included a three-hour instruction block conducted by the

27

Custody Division Chief. The Chief went through the new policies line by line and the session included time for questions and answers. (See Dempsey Decl., ¶¶18-19)

28

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1 fact that the Sheriff undertook this very significant effort confirms his commitment to

2 permanently abandon the old policies.

3

LEGAL ARGUMENT

4 I. 5

PLAINTIFFS FAIL TO MEET THE TWO REQUISITES FOR PRELIMINARY INJUNCTIVE RELIEF

6

A party seeking preliminary injunction relief must show it is entitled to this extraordinary

7 remedy. Matthews v. National Collegiate Athletic Association, 79 F.Supp.2d 1199, 1202-03

8 (E.D. WA 1999). Plaintiffs are not entitled to an injunction unless they demonstrate: (1) the

9 combination of probable success on the merits and the possibility of irreparable injury; or (2) the

10 existence of serious questions regarding the merits and the balance of hardships tip sharply in 11 their favor. Fund for Animals, Inc. v. Lujan, 962 F.2d 1391, 1400 (9th Cir. 1992) The court must

12 “identify the harms which a preliminary injunction might cause to defendants and…weigh these

13 against plaintiff’s threatened injury.” L.A. Memorial Coliseum v. National Football League, 634

14 F.2d 1197, 1203 (9th Cir. 1980). Plaintiffs cannot meet their burden.

15

A. Plaintiffs Have Not and Cannot Show Irreparable Injury

16

Plaintiffs have failed to show that they will suffer irreparable injury. Sheriff Hennessey

17 has changed the policies about which plaintiffs complain. Plaintiffs cannot be irreparably injured

18 by conduct that is no longer occurring. Moreover, none of the plaintiffs are currently in the

19 custody of the San Francisco Sheriff's Department. Even if plaintiffs are taken into custody in

20 the future, they will be subject to the Sheriff's new policies, policies that are not at issue in this

21 motion and that plaintiffs have not challenged.

22

1. Plaintiffs Cannot Show Irreparable Injury Because The Sheriff Has

Abandoned The Policies Challenged By Plaintiffs. 23

24

Where a plaintiff seeks an injunction against the allegedly indifferent actions of prison

25 officials despite developments that postdate the pleadings, “the defendants may rely on such

26 developments to establish that the inmate is not entitled to an injunction.” Farmer v. Brennan,

27 511 U.S. 825, 846 (1994). Similarly, the Prison Litigation Reform Act (18 U.S.C. § 3626(b)(3))

28 does not provide for relief beyond that “necessary to correct the violation of the Federal right of

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1 a particular plaintiff or plaintiffs.” The Ninth Circuit also recognizes that a change in statute,

2 ordinance or policy will moot a plaintiff’s claim for relief. Soranno v. Clark County, 345 F.3d

3 1117, 1119 (9th Cir. 2003) (claim moot because county amended ordinance at issue); Doty v.

4 County of Lassen, 37 F.3d 540, 544 (9th Cir. 1994) (injunction improper where county was no

5 longer using challenged jail); see also Tyler v. Black, 865 F.2d 181, 183 (8th Cir. 1989) (en banc)

6 (issue of double-bunking of inmates moot where practice was ended after the lower court trial

7 and before the rehearing en banc). Additionally, in Buckhannon Board & Care Home, Inc. v.

8 West Virginia Dept. of Health and Human Resources, 532 U.S. 598, 600-601 (2001), the

9 Supreme Court dismissed Petitioner’s class action was mooted by a change in objectionable

10 statutory requirements during the pendency of the case. See also McClelland v. Gronwaldt, 155

11 F.3d 507, 514 (5th Cir. 1998) (“it is axiomatic that ‘a request for injunctive relief remains live

12 only so long as there is some present harm left to enjoin’”).

13

Plaintiffs argue that the Court should not consider the changes in policy because the

14 changes were made during the current litigation. These voluntary changes, however, cannot

15 simply be ignored. The voluntary cessation of allegedly illegal conduct, whether or not in

16 response to a lawsuit, renders a controversy moot. White v. Lee, 227 F.3 1214, 1243 (9th Cir.

17 2000); see also Lindquist v. Idaho State Board of Corrections, 776 F.2d 851, 854 (9th Cir. 1985)

18 (good faith change in conditions of prison library facilities made after lawsuit began rendered

19 issues moot); Ragsdale v. Turnock, 841 F.2d 1358, 1365 (7th Cir. 1988) (self-corrective action

20 taken in a genuine effort to comply with current case law provides foundation for dismissal

21 based on mootness); McCrary v. Poythress, 638 F.2d 1308, 1310 (5th Cir.), cert. denied, 454

22 U.S. 865 (1981) (defendants' abandonment of prior purportedly unauthorized conduct rendered

23 case moot).

24

The issue is not when or why defendants changed their policies. The issue is whether the

25 change is permanent and whether the challenged conduct will recur. White, 227 F.3d at 1243.

26 In White, the Ninth Circuit held that a memorandum that changed the way HUD did

27 investigations was permanent and therefore mooted plaintiff’s claims. The fact that plaintiff's

28 lawsuit was the catalyst for the change was irrelevant. Id. at 1243. Plaintiffs rely on Friends of

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1 the Earth, Inc. v. Laidlaw Environmental Services (TOC) Inc., 528 U.S. 167 (2000), but that case

2 is clearly distinguishable. In that case, the Supreme Court addressed whether a government

3 agency’s moratorium would moot an otherwise valid claim for injunctive relief. It held that a

4 moratorium, “by its terms was not permanent” and therefore did not moot a claim for injunctive

5 relief. Id. at 709. The facts of this case are similar to those in White, not Friends of the Earth.

6 The Sheriff has not simply suspended the application of the challenged policies. He rescinded

7 them entirely, unequivocally stated that he has no intention of reverting to the old policies, and

8 incurred considerable time and expense to implement the new policies. (Hennessey Decl., ¶¶ 2-

9 4; see also Dempsey Decl., ¶¶ 4-25.) There is no realistic possibility that the challenged conduct

10 will recur. This permanent change in policy is precisely the type of change that was at issue in

11 White and defeats plaintiffs’ motion for injunction.

12

2. Plaintiffs Lack Standing To Seek Injunctive Relief Because They Face

No Imminent Harm. 13

14

In lawsuits to force governmental compliance, plaintiffs bear the burden of establishing

15 standing. Friends of the Earth, 528 U.S. at 190. Named plaintiffs asserting claims on behalf of a

16 class must have either personally sustained or be in an immediate danger of sustaining a direct

17 injury as a result of the challenged statute or official conduct. O'Shea v. Littleton, 414 U.S. 488,

18 494 and 497 (1974) (injunctive relief would not be granted for future harm that resided on

19 speculation and conjecture that the plaintiffs may repeat the actions which resulted in the harm).

20 A plaintiff seeking injunctive relief must show he is "'immediately in danger of sustaining some

21 direct injury' as [a] result" of the challenged conduct. McConnell v. FEC, 124 S.Ct. 619, 708

22 (2003) (quoting Los Angeles v. Lyons, 461 US 95, 102 (1983)); Preiser v. Newkirk, 422 U.S.

23 395, 403 (1975); Booth v. Churner, 532 U. S. 731, 735 (2001). Most important, while a plaintiff

24 may have a claim for damages based on the injury he already sustained, that plaintiff cannot

25 obtain injunctive relief absent a showing of any real or immediate threat that the plaintiff will be

26 wronged again. Los Angeles v. Lyons, 461 U.S. 95, 111 (1983).

27

Here, the present harm is not only speculative but it also cannot be applied to plaintiffs,

28 as they are not currently incarcerated. The plaintiffs here may proceed with their individual

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1 claims for damages but, as Lyons held, they are not entitled to injunctive relief. See Smith v.

2 Montgomery County, 573 F. Supp. 604, 608-09 (D.Md. 1983) (dissolving preliminary injunction

3 prohibiting strip searches because class representative unlikely to be detained again).

4

Named Plaintiff Mary Bull's threat to commit future acts of unlawful civil disobedience

5 cannot create standing to seek injunctive relief. Even if arrested again, she and the other named

6 plaintiffs will not be subject to the policies that existed at the time of their initial arrests and that

7 gave rise to this lawsuit. Plaintiff Mary Bull’s vague claims that she plans to participate in non-

8 specific, “future” protests in San Francisco do not meet the requirement of proving that it is

9 sufficiently likely that she will be re-arrested. (Bull Declaration, ¶¶ 19-20.) As such, Plaintiff's

10 "some day" plans to participate in additional protests in San Francisco are speculative, and do not

11 meet the standards required for injunctive relief. See Lujan v. Defenders of Wildlife, 504 U.S.

12 555, 564 (1992) ("some day" intentions did not meet the actual or imminent requirements for

13 injunctive relief).

14

B. Plaintiffs' Request Also Fails Because They Cannot Demonstrate a

Likelihood of Success on the Merits. 15

16

Plaintiffs' motion independently fails because they are not likely to prevail on the merits.

17 The Sheriff's new policies comply with state and federal law. Moreover, plaintiffs do not limit

18 their injunction to the requirements of applicable law. Rather, plaintiffs also seek to impose

19 additional obligations on the Sheriff that are unsupported by either the law or by expert opinion

20 and that impermissibly tread on the Sheriff's discretion to set the policies in the jails.

21

1. Plaintiffs Have Not Challenged the New Policies

22

The Sheriff enacted his new policies on January 21, 2004. Plaintiffs had more than a

23 month, until February 28, to file an amended motion for preliminary injunction that would be

24 heard on April 9 and that addressed the new search and safety cell policies. Plaintiffs did not file

25 such a motion. A fair inference is that plaintiffs have no objections to the new policies and that

26 they concede that the policies comport with federal and state law.

27

28

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1

2. The Sheriff's New Policies Comply With Federal and State Law.

2

Defendants have separately moved for a declaration that the new search and safety

3 policies comply with federal and state law. The discussion below (sections 2.3 through 3)3

4 repeats the arguments in support of that motion, as the lawfulness of the new policies

5 independently defeats plaintiffs' motion for preliminary injunction.

6

Defendants cannot be held liable for violations of the fourteenth amendment absent a

7 showing that they were deliberately indifferent to the rights of inmates. Redman v. County of

8 San Diego, 942 F.2d 1435, 1443 (9th Cir. 1991) (en banc), cert. denied. 502 U.S. 1074, 112 S.Ct.

9 972 (1992); Farmer v. Brennan, 511 U.S. 825, 114 S. Ct. 1970, 1979 (1994). This is a high

10 standard -- plaintiffs must show that defendants were “so wanton or reckless with respect to the

11 ‘unjustified infliction of harm,’” so as to have knowingly and willfully allowed the harm to

12 occur. Redman v. County of San Diego, 942 F.2d at 1443. Because inmates are in the Jail for

13 relatively short periods of time while awaiting trial and sentencing, the constitutional

14 requirements are less stringent than if it were a long-term facility. Campbell v. Cauthron, 623

15 F.2d 503, 507 (8th Cir. 1980); see Hutto v. Finney, 437 U.S. 678, 686, 98 S.Ct. 2565, 2572

16 (1978).

17

a. The New Search Policy Is Valid Under Federal and State Law.

18

Conditions for pre-trial detainees in the jail satisfy the Fourteenth Amendment unless

19 they are intended as punishment. Bell v. Wolfish, 441 U.S. 520, 535. If a particular condition is

20 reasonably related to a legitimate governmental objective, it does not, without more, amount to

21 “punishment.” Id. at 539. As the Supreme Court explained, “the effective management of the

22 detention facility . . . is a valid objective that may justify imposition of conditions and

23 restrictions of pretrial detention and dispel any inference that such restrictions are intended as

24 punishment.” Id. at 540.

25

26 3 Sections 4 & 5 separately responds to the factual arguments plaintiffs make in support
27 of their motion.

28

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1

In determining whether a particular condition constitutes “punishment,” the Court must

2 accord “wide-ranging deference” to jail administrators and their expert judgment. Id. at 547.

3 “[T]he operation of our correctional facilities is peculiarly the province of the Legislative and

4 Executive Branches of our Government, not the Judicial.” Id. at 548 (citations omitted).

5 Consistent with this deference, the Court has provided broad discretion to law enforcement

6 agencies in determining the security needs of penal institutions. See Bell, 441 U.S. 520. The

7 Bell Court found that “maintaining institutional security and preserving internal order and

8 discipline are essential goals that may require limitation or retraction of the retained

9 constitutional rights of both convicted prisoners and pretrial detainees.” 441 U.S. at 546

10 (emphasis added). To determine the Fourth Amendment reasonableness of an institution’s

11 search policy, the Court balanced the need for the particular search against the attendant invasion

12 of personal privacy. Id. at 559. The Court found that a blanket strip search policy in which pre-

13 trial detainees were subjected to visual cavity searches after every contact visit with a person

14 from outside the institution, even in the absence of suspicion that an individual inmate had

15 received contraband from a visitor, was reasonable as “a detention facility is a unique place

16 fraught with serious security dangers. Smuggling of money, drugs, weapons, and other

17 contraband is all too common an occurrence.” Id.

18

Since Bell, the Ninth Circuit has consistently held that the nature of the arrestee’s offense

19 and his or her prior arrest record are critical to determining whether a strip search is

20 constitutionally permissible. In Giles v. Ackerman, 746 F.2d 614, 617 (9th Cir. 1984), the Court

21 held that, prior to a strip search of minor offenders, jail authorities must possess “reasonable

22 suspicion that the individual arrestee is carrying or concealing contraband.” The Court further

23 held that this “reasonable suspicion may be based on such factors as the nature of the offense, the

24 arrestee’s appearance and conduct, and the prior arrest record.” Id. at 617. In Thompson v. City

25 of Los Angeles, 885 F.2d 1439 (9th Cir. 1989), the Court once again declared that the nature of

26 the crime was critical in determining whether a strip search was permissible. There the Court

27 found that grand theft auto was sufficiently related to violence to justify a strip search prior to

28 housing the plaintiff with other inmates. Id. at 1447. In considering the City of Los Angeles’

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1 strip search policies, the Ninth Circuit in Kennedy v. Los Angeles Police Department, 901 F.2d.

2 702 (9th Cir. 1990), reiterated the reasonable suspicion standard for strip searches, noting that it

3 “prudently invites the consideration of the nature of the crime charged in determining the

4 constitutionality of an individual search” and emphasizing the holding in Giles that reasonable

5 suspicion “may be based on such factors as the nature of the offense, the arrestee’s appearance

6 and conduct, and the prior arrest record.” Id. at 716.

7

Giles, Thompson and Kennedy are consistent with out-of-circuit authority permitting strip

8 searches of persons charged with violent crimes. Following Bell v. Wolfish, the Sixth Circuit

9 upheld the constitutionality of a strip search of an arrestee charged with felonious assault because

10 it is a “class of crime of which violence is an element” and noted that the search was further

11 justified by the fact that the inmate “would ultimately come into contact with the general jail

12 population.” Dufrin v. Spreen, 712 F.2d 1084, 1087 (6th Cir. 1983). Similarly, that Court held

13 that county jail officials had a legitimate security interest in strip searching an arrestee charged

14 with “misdemeanor menacing” because that is a violent crime involving a person who

15 “intentionally places another person in reasonable apprehension of imminent physical injury.”

16 Further, menacing is associated with weapons and may well raise reasonable suspicion on part of

17 jail officials that someone arrested on that charge may be concealing weapons or other

18 contraband. Dobrowolsky v. Jefferson County, 823 F.2d 955, 958-59 (6th Cir. 1987).

19

Consistent with the controlling Ninth Circuit cases of Giles, Thompson, and Kennedy, the

20 current search policy permits strip searches of detainees upon a finding of reasonable suspicion

21 or when they have been arrested within the past five years for crimes involving drugs, weapons

22 or violence.

23

Under these cases the new search policy is valid. The search policy enacted on

24 January 21, 2004, allows strip searches to be conducted only for inmates charged with drugs,

25 weapons or violence, with a criminal history of drugs, weapons or violence, on active parole or

26 probation, being held at the behest of another agency or where there is documented reasonable

27 suspicion that contraband may be present.

28

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1

In addition, the Sheriff’s Department policy permits strip searches of inmates arrested for

2 violation of parole (Penal Code section 3056) and probation (Penal Code section 1203.2). These

3 prisoners have, by definition, already been arraigned, convicted and sentenced and are being

4 returned to jail because they have violated the conditions of their release. Several factors make

5 strip searches of these prisoners constitutional. Probation and parole violators are ineligible for

6 citation and release, release on their own recognizance, or bail. They know that they are facing

7 more likely and longer periods of incarceration and therefore would have a greater incentive to

8 attempt to introduce contraband into the jail. Giles, 746 F.2d at 617 (noting that the strip search

9 policy in Wolfish was justified in part because inmates were “detained for substantial pretrial

10 periods”).

11

Further, parolee and probationers must agree as a condition of release to submit to certain

12 law enforcement searches. They therefore have a diminished expectation of privacy. They are

13 also “more likely than the ordinary citizen to violate the law.” United States v. Knights, 534 U.S.

14 112, 122 S.Ct. 587, 590 (2001). The reasonableness of a search under the Fourth Amendment is

15 determined by assessing, on the one hand, the degree to which it intrudes upon an individual’s

16 privacy and, on the other, the degree to which it is needed to promote legitimate governmental

17 interests. An arrestee’s “status as a probationer subject to a search condition informs both sides

18 of that balance.” Id., 122 S. Ct. at 588. Such convicted and sentenced prisoners who have

19 violated their conditions of release may permissibly be strip searched when they are returned to

20 jail, just as other inmates who are returning from outside the facility.

21

The Sheriff’s Department policy permits a strip search of inmates after intake only with

22 reasonable suspicion or in three narrowly defined circumstances. In most cases, reasonable

23 suspicion and a supervisor’s prior approval is required. But a pre-sentenced inmate may also be

24 strip searched without reasonable suspicion: (1) during a security search, but only if that prisoner

25 met the requirement for being strip searched at intake; (2) if the prisoner has been found with

26 contraband during prior searches; or (3) is returning from a work detail, court ordered pass, a

27 hospital appointment, court appearance, contact visits, interviews, or other activities outside their

28

OPPOSITION TO MOTION FOR PRELIM. INJ.

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1 assigned housing unit. A security search for contraband is one that is focused on one part or area

2 of the jail (e.g., a cell, a dormitory or a pod). See Search Policy II.C.2.a.

3

These searches are permissible based on the security needs of the prison. Deterrence of

4 smuggling requires the ability to conduct security searches of housing units – either on a random

5 basis or on the basis of information that weapons or drugs have been secreted in a particular cell

6 or area of the jail. (See Exhibits 6,7 and 10 to Dempsey Decl., ¶¶ 4-22.) Pre-sentenced

7 prisoners will only be subject to a strip search during a security search if they were eligible for a

8 strip search at intake – i.e., they were arrested for or had a history of drugs, weapons or violence

9 offenses. Jail officials also need to deter known smugglers of contraband – i.e., those who have

10 previously been found with drugs or weapons – with the ability to conduct a search in the

11 absence of reasonable suspicion. Finally, as stated above, Bell v. Wolfish permits searches of

12 pre-trial detainees following their contacts with outsiders, as when returning from work details or

13 hospital visits. 14

b. The New Search Policy Comports With California Law.

15

California Penal Code § 4030 provides additional state-law guidance regarding strip

16 searches of detainees held for infraction or misdemeanor offenses before being placed in the

17 general jail population. Before a prisoner is classified and transferred to a housing unit, section

18 4030(f) allows the Sheriff’s Department to strip search misdemeanor and infraction arrestees

19 only when reasonable suspicion exists that the inmate is concealing a weapon or contraband or

20 when the detainee was arrested for a crime involving drugs, weapons or violence. The Sheriff’s

21 Department’s revised strip search policy complies with Section 4030 because it does not provide 22 for intake strip searches under any other circumstances. 4

23

4 Plaintiff's reliance on the holding of a Massachusetts district court case is unpersuasive.

24

The facts in Mack v. Suffolk County, 191 F.R.D. 16 (D. Mass 2000) refer to a blanket strip search policy where "every single female pre-arraignment detainee was required to be strip-searched"

25

regardless if the crime was for a felony or misdemeanor. Id. at 17 (emphasis added). The old policy adopted August 20, 1999 which is at controversy, did not rise to this level of a "blanket

26

policy", and represented the Defendant's good faith efforts to comply with the legal requirements known to the Department at that time. (See Dempsey Decl., ¶¶ 4-12). In addition, the San

27

Francisco Sheriff's Department abandoned this policy on January 21, 2004. (See Hennessey Decl.,¶¶ 1-4).

28

OPPOSITION TO MOTION FOR PRELIM. INJ.

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1

3. The New Safety Cell Policy Satisfies Federal and State Law.

2

Safety cells are used to confine inmates who pose a danger to themselves or others. As

3 the Ninth Circuit noted, “[p]rison officials have to have some means of controlling violent or

4 self-destructive inmates temporarily until the episode passes … it is difficult to distinguish

5 between violent, mentally healthy inmates and violent, mentally disturbed ones.” Anderson v.

6 County of Kern, 45 F.3d at 1310, 1315 (9th Cir. 1995). Accordingly, although Sheriff’s

7 Department staff rely on the assistance of medical and psychiatric professionals in evaluating

8 safety cell placements, the state regulatory law grants the Sheriff the authority to determine when

9 safety cell placements are necessary to control violent or self-destructive inmates. (See

10 Dempsey Decl., ¶¶13-17, 20-25).

11

The Department’s revised safety cell policy also complies with Section 1055 of Title 15

12 of the California Code of Regulations, entitled “Use of Safety Cell,” which permits the use of a

13 safety cell for inmates who destroy property or who pose a danger to themselves or others. Cal.

14 Code Regs. Title 15, § 1055 (2003). Section 1055 sets forth specific guiding principles that jails

15 must follow, but leaves the development of specific written policies governing safety cell use to

16 jail administrators.5 Not only does the Sheriff’s Department’s current safety cell policy comply

17 with the restrictions set forth in section 1055, but it restricts the use of safety cells in the San

18 Francisco County Jails more than state law mandates.

19

With the exception of when a prisoner requests a safety cell placement or Jail Health

20 Services recommends such placement, the Sheriff’s Department’s safety cell policy allows the

21 safety cell to be used only when an inmate imminently threatens to cause physical injury to

22 himself or others. Although Section 1055 allows the safety cell to be used to hold those inmates

23 who display behavior which results in the destruction of property, current San Francisco policy is

24 more limited. It only allows the safety cell to be used for behavior resulting in property

25 destruction that could result in harm to the inmate or another. In conformance with Section

26

5 “The facility administrator, in cooperation with the responsible physician, shall develop

27

written policies and procedures governing safety cell use and may delegate authority to place an inmate in a safety cell to a physician.” Cal. Code Regs. Title. 15, § 1055 (2003).

28

OPPOSITION TO MOTION FOR PRELIM. INJ.

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1 1055, the revised policy does not allow the safety cell to be used for punishment or as a

2 substitute for treatment.

3

The Sheriff’s Department’s policy to strip search a detainee entering a safety cell who is

4 a danger to himself in order to find dangerous contraband is not only consistent with Section

5 1055, but is supported by relevant case law. Federal law demonstrates the need for jail

6 administrators to ensure the safety of the inmate as well as others in the jail. To be sure, cases

7 abound in which jail officials have been sued for failing to prevent detainees from harming

8 themselves when in custody. Sibley v. Lemaire, 184 F.3d 481, 483-86 (5th Cir. 1999) (plaintiff

9 sued institution for failure to take actions to prevent plaintiff from suffering psychotic episode

10 and injuring himself by removing his eyeballs); Yellow Horse v. Pennington County, 225 F.3d

11 923, 925-26 (8th Cir. 2000) (plaintiff’s estate sued jail for failure to prevent suicide of decedent

12 after he was taken off suicide watch); Frake v. City of Chicago, 210 F.3d 779, 780-81 (7th Cir.

13 2000) (plaintiff filed a lawsuit against defendant city after his son, a pretrial detainee in

14 defendant’s detention facility, hung himself in his cell). In view of this case law, the Sheriff’s

15 Department’s current safety cell policy allows limited strip searches, but only out of the need to

16 prevent an inmate from inflicting harm upon himself.6

17

The current safety cell policy further requires that: (1) a prisoner shall be placed in a

18 safety cell only with the approval of the facility commander, the facility watch commander, or

19 the designated physician (Section I.A.); (2) staff must observe an inmate at least twice every

20 thirty minutes and document this observation (Section III.C.1-3); (3) a medical assessment must

21 be provided within thirty minutes after placement (although Section 1055 only requires that this

22 be done within twelve hours) (Section II.K); (4) a Watch Commander must review the inmate’s

23 retention in the housing cell every eight hours (Section IV.A); (5) medical and psychiatric

24 clearance must be secured for continued retention within twenty-four hours of placement

25 (Section IV.B&C); (6) necessary food and water be provided (Section III.D & E); (7) an inmate

26

6 When an inmate poses an imminent threat to others, including staff, other inmates or

27

civilians, he will be placed in the safety cell but will not be strip searched unless there is a reasonable suspicion that the prisoner has concealed contraband.

28

OPPOSITION TO MOTION FOR PRELIM. INJ.

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1 may not stay in the safety cell beyond twenty-four hours (although Section 1055 allows it,

2 simply requiring medical clearance “for continued retention every twenty four hours” after the

3 first medical assessment); (8) staff must maintain the safety cell’s cleanliness and provide

4 inmates with basic sanitary needs (Sections III.F & G and Section V); and (9) detainees who are

5 placed in safety cells must be provided a safety cell garment and/or blanket immediately after

6 placement (Section G.1-2).

7

These provisions demonstrate that the current safety cell policy fully complies with

8 federal law and exceeds the requirements of state law set forth in Section 1055. In addition,

9 because safety cells may not be used for punishment, the safety cell policy does not violate

10 federal protections and fully complies with Title 15, Section 1083(d) (stating “In no case shall a

11 safety cell, as specified in title 24, section 2- 470A.2.5, or any restraint device be used for

12 disciplinary purposes”).

13

a.

14

Plaintiffs untimely effort to inject new claimants into this lawsuit must be rejected and the allegations of these new claimants cannot be considered in this motion.

15

After plaintiffs filed their motion for preliminary injunction and the court set the briefing

16 schedule, plaintiffs belatedly sought to file a second amended complaint adding six new named

17 plaintiffs and adding new Roe class plaintiffs with new and different factual allegations. The

18 court has denied plaintiffs’ request to hear their motion to file a second amended complaint on

19 shortened time. Defendants obviously have had no opportunity to depose these new claimants or

20 conduct other discovery related to their claims. Fairness dictates that the Court should not

21 consider these new claimants or their allegations. Defendants hereby move to strike the

22 declaration of Steve Noh, Michael Marron, and Michele De Ranleau.

23

b. Plaintiffs’ factual arguments in support of their motion are

misplaced – the Sheriff never had a policy of placing inmates in

24

safety cells for punishment.

25

Neither the old policy nor the new one has ever authorized the placement of an inmate in

26 a safety cell for punishment or to force someone to comply with a strip search. (See Dempsey

27 Decl., ¶¶14-17, 20-25.) The new safety cell policy complies with the requirements set forth in

28 Title 15 §1055 et seq. and is constitutional.

OPPOSITION TO MOTION FOR PRELIM. INJ.

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1

Plaintiffs misrepresent the deposition testimony of various witnesses to try and prove that

2 the safety cell’s are used for punishment, when in fact, refusing to consent to a strip search,

3 standing alone, has never been an adequate or allowable reason for placement of an inmate in a

4 safety cell. For instance, plaintiffs cite the deposition of Mitch Marquez and imply that he has

5 seen inmates naked in a safety cell in violation of their rights. In actuality, Mr. Marquez testified

6 that it was his understanding that only persons that were suicidal were not allowed to retain their

7 clothes and he has seen such (suicidal) persons naked in a safety cell. (Exh. A to Evans Decl. at

8 page 31, lines 3-9, 11-18) Further, Undersheriff Dempsey testified that when she learned that

9 there had been isolated instances in the past where prisoners were not given safety garments, she

10 immediately reminded facility commanders at their next meeting that inmates were to be given

11 safety cell garments in a timely manner and, in no event, longer than 30 minutes. (Exh. B to

12 Evans Decl. at page 73, lines 17-23, page 74, lines 13-20). 7

13

Lastly, the report prepared by Prison Legal Services analyzed all complaints that were

14 made about the jail, regardless of whether or not they were true. While the report did state that on

15 occasion persons had been placed in a safety cell for refusing to cooperate in a strip search, it did

16 not state that this was the sole basis for safety cell placement of any one individual. (Exh. D to

17 Evans Decl. at page 26, lines 12-25.) Deputy Humphrey corroborated that it was neither the

18 policy nor practice to place inmates in a safety cell based only on the fact that they refused to

19 consent to be strip searched. (Exh. F to Evans Decl. at page 116, lines 10-15.) In fact, in the

20 case of named plaintiff Mary Bull, she was placed in a safety cell because she was determined to

21 be gravely disabled, appeared to be a danger to others, refused to be searched, became

22

7 Plaintiffs also misrepresent the testimony of Jail Psychiatric Services counselors Cotton

23

and Chow and Sheriff Deputies Carson, Palencia and Humphrey. Therapist Karen Cotton testified that in her opinion refusing to consent to a strip search could be considered “bizarre”

24

behavior. (Exh. H to Evans Decl. at page 56, line 1 - page 57, line 10.) Deputy Carson explained the difference between a search for a safety cell placement and a strip search in her

25

deposition. In no way did Deputy Carson’s testimony indicate, as plaintiffs attempt to imply, that every person placed in a safety cell has refused to consent to a strip search. (Exh. C to

26

Evans Decl. at page 17, lines 7- page 18, line 12). Deputy Palencia testified that the prior policy required the removal of inmates’ clothing before placement in a safety cell. He did not testify

27

that inmate’s body cavities are inspected. (Exh. E to Evans Decl. at page 45, line 15 – 46, line 4).

28

OPPOSITION TO MOTION FOR PRELIM. INJ.

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1 argumentative, refused all orders, engaged in bizarre behavior, and was uncooperative during

2 search (refused). (Exh. I to Evans Decl. (Safety Cell Housing Forms); and Exh. G to Evans Decl. 3 at page 45, lines 12-25.)8 Likewise, the other plaintiffs9 that were placed in a safety cell were put

4 there for proper reasons. Plaintiff Alexis Bronson was placed in a safety cell because he was

5 deemed to be a danger to others and had swung his arms at one of the Sheriff deputies. (See

6 Exhibit M to Evans Decl., ¶14.) Plaintiff Leigh Fleming was arrested for resisting arrest and

7 disturbing the peace. Plaintiff Fleming was placed in a safety cell because she appeared to be a

8 danger to others, for bizarre behavior that resulted in the destruction of property and she “was

9 kicking and banging on door and window - refused to cooperate with ID processor.” (See

10 Exh. N to Evans Decl., ¶15.) Plaintiff Deborah Flick was arrested because she was extremely

11 intoxicated and attempting to drive her car. Plaintiff Flick was placed in a safety cell because

12 she was found to be gravely disabled and extremely intoxicated. (See Evans Decl., ¶19.)

13 Plaintiff Miki Mangosing was arrested because she was extremely intoxicated, fighting with bar

14 patrons, screaming and yelling. (See Evans Decl., ¶20.)

15 II. 16

PLAINTIFFS' CANNOT SHOW THAT THEIR POLICY PREFERENCES SHOULD OVERRIDE THE SHERIFF'S LAWFUL EXERCISE OF DISCRETION.

17

In addition to seeking to enjoin the old, superseded search and safety cell policies,

18 plaintiffs' proposed injunction seeks to go much farther and impose additional limitations on the

19 Sheriff's use of safety cells. Specifically , plaintiffs ask this court to require that: (1) any safety

20 8 Steve Noh claims he was arrested and strip searched in County Jail 9 in San Francisco,
21 San Francisco has no record of his arrest. Further, Steve Noh is not a named plaintiff in the lawsuit, has not been deposed and plaintiffs have not produced any documents or proof of his
22 arrest. The court should not consider his declaration or the declarations of Michael Marron or Michele De Ranleau, neither of whom are currently named plaintiffs in this lawsuit and no
23 discovery has been provided related to these individuals. This motion is the first time that defendants have heard mention of Steve Noh, Michael Marron, or Michele De Ranleau.
24 Defendants object and move to strike their declarations, and ask the court not to consider them.

25

9 Plaintiff Charli Johnson was arrested for outstanding warrants. There is no record of

her being placed in a safety cell at the San Francisco County Jail. (See Evans Decl., ¶17.)

26 Plaintiff Laura Timbrook was arrested for outstanding arrest warrants and charged with burglary,

forgery and intent to defraud. There is no record of her being placed in a safety cell at the San

27 Francisco County Jail. (See Evans Decl., ¶18.)

28

OPPOSITION TO MOTION FOR PRELIM. INJ.

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1 cell placements be made only by a "licensed professional;" (2) no inmates be strip searched

2 before being placed in a safety cell; and (3) inmates be permitted to keep their clothing in the

3 safety cell unless a "licensed professional" determines that the inmate is likely to use the clothing

4 to harm him or herself. See Plaintiffs' Motion at 1.

5

There are two fatal problems with plaintiffs' expanded injunction. First, plaintiffs

6 impermissibly seek to substitute their policy preferences for those of the Sheriff. The Supreme

7 Court grants broad discretion to law enforcement agencies in addressing the security needs of

8 penal institutions. See Bell v. Wolfish, 441 U.S. 520. The Prison Litigation Reform Act, also

9 limits this Court’s jurisdiction to grant injunctive relief:

10

Prospective relief in any civil action with respect to prison conditions shall

extend no further than necessary to correct the violation of the Federal

11

right of a particular plaintiff or plaintiffs. The court shall not grant or

approve any prospective relief unless the court finds that such relief is

12

narrowly drawn, extends no further than necessary to correct the violation

of the Federal right, and is the least intrusive means necessary to correct

13

the violation of the Federal right. The court shall give substantial weight

to any adverse impact on public safety or the operation of the criminal

14

justice system caused by the relief.

15 18 U.S.C. § 3626(a)(1)(A), (C). The Act specifically covers local detention facilities such as

16 jails, including those that house pretrial detainees. 18 U.S.C. § 3626(g) (3), (5). It also applies

17 specifically to class actions. 18 U.S.C. § 3626(a)(1). The Act limits the authority of the Court to

18 involve itself in municipal decision-making functions regarding the Jail. See also Doty v. County 19 of Lassen, 37 F.3d 540 (9th Cir. 1994), citing Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir.

20 1982) (federal court's role is limited to correcting constitutional violations; courts have no role in

21 formulation of prison policy).

22

Together, these authorities require that this Court defer to the Sheriff in setting jail policy

23 unless a policy clearly violates the law.

24

Second, plaintiffs utterly fail to demonstrate that their proposed changes to jail policy are

25 necessary to correct unlawful practices. In fact, plaintiffs provide no legal or factual support at

26 all for their position. For example, they cite to no authority for the proposition that safety cell

27 placements should only be made at the direction of a "licensed professional" and state

28 regulations are to the contrary. See California Code of Regulations Title 15, § 1055 (safety cell

OPPOSITION TO MOTION FOR PRELIM. INJ.

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1 placement may be approved by "the facility manager, watch commander or the designated

2 physician") (emphasis added). They also cite to no expert opinion or other evidence that would

3 tend to support their demand that all safety cell placements be made by a "licensed 4 professional."10 Likewise, they cite no legal or evidentiary support for their assertion that

5 inmates should not be strip searched before being placed in safety cells or that they should be

6 permitted to keep their clothing.

7

Plaintiffs' unsupported position is nothing more than a policy preference. They are in

8 effect asking this court to substitute their personal preferences for the carefully crafted policies

9 that the Sheriff has developed and implemented. This is exactly what Bell and the Prison

10 Litigation Reform Act forbid. Even more important, plaintiffs' proposed new policies are ill-

11 conceived and dangerous. As Undersheriff Dempsey explains in her unrefuted declaration, jails

12 have safety cells in order to provide temporary housing for inmates who may harm themselves or

13 others. (Dempsey Decl., ¶ 14.) It would expose inmates to unnecessary and inappropriate risk if

14 they could not be placed into a safe environment until evaluated by a "licensed professional."

15 (Id., ¶ 22.) And the policies that govern the searching of inmates before they are placed in safety

16 cells, and whether inmates can keep their clothing, are essential to protect the inmates and others.

17 (Id., ¶ 25.) The Sheriff's first duty is to protect the safety of the inmates and the deputies. (Id.,

18 ¶ 4, 10.) Inmates who are bent on suicide must be carefully searched and monitored. Even

19 innocuous articles such as a tampon have been used by inmates to try to harm themselves. (Id.,

20 ¶ 17.) There is no room for error. Plaintiffs' proposed policy revisions may be well intentioned,

21 but they could result in unnecessary and preventable death and injury.

22

23

24

25 / / /

26

27

10 Plaintiffs should not be permitted to introduce such evidence after the fact, in their reply, and any such evidence should be disregarded as untimely.

28

OPPOSITION TO MOTION FOR PRELIM. INJ.

22

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1

CONCLUSION

2

For each of these reasons, defendants request that the court deny Plaintiffs’ Motion for

3 Preliminary Injunction.

4

5 Dated: March 19, 2004 6 7 8 9

DENNIS J. HERRERA City Attorney JOANNE HOEPER Chief Trial Deputy INGRID EVANS Deputy City Attorney

10

By:

/s/

11

INGRID EVANS

12

Attorneys for Defendants

CITY AND COUNTY OF SAN FRANCISCO,

13

SAN FRANCISCO SHERIFF'S DEPARTMENT

and SAN FRANCISCO COUNTY SHERIFF

14

MICHAEL HENNESSEY

15

16

17

18

19

20

21

22

23

24

25

26

27

28

OPPOSITION TO MOTION FOR PRELIM. INJ.

23

CASE NO. C03-1480 CRB

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 Case 3:03-cv-01840-CRB Document 162 Filed 06/10/2004 Page 1 of 20

United States District Court
For the Northern District of California

1

2

3

4

5

6

7

8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE NORTHERN DISTRICT OF CALIFORNIA

10

11 MARY BULL, et al.,

12

Plaintiffs,

13 v.

14 CITY & COUNTY OF SAN FRANCISCO, et al.,
15

No. C 03-01840 CRB MEMORANDUM & ORDER

16

Defendants.

/

17

18

In this suit, plaintiffs challenge the San Francisco Sheriff’s Department’s strip search

19 policies. Now before the Court are four motions: (1) plaintiffs’ motion for a preliminary

20 injunction; (2) plaintiffs’ motion for class certification; (3) defendants’ motion for judgment

21 on the pleadings; and (4) defendants’ motion for partial summary judgment. Having

22 carefully considered the memoranda submitted by the parties, and having had extensive oral

23 argument, the Court hereby DENIES plaintiffs’ motion for a preliminary injunction,

24 GRANTS plaintiffs’ motion for class certification, DENIES defendants’ motion for

25 judgment on the pleadings, and GRANTS IN PART AND DENIES WITHOUT

26 PREJUDICE IN PART defendants’ motion for partial summary judgment.

27 //

28 //

Case 3:03-cv-01840-CRB Document 162 Filed 06/10/2004 Page 2 of 20

United States District Court
For the Northern District of California

1

BACKGROUND

2

On April 23, 2003, named plaintiffs Mary Bull, Jonah Zern, Lisa Giampaoli, Marcy

3 Corneau, Alexis Bronson, Micky Mangosing, Charli Johnson, Leigh Fleming, and Laura

4 Timbrook (collectively “plaintiffs”) filed this putative class action lawsuit against the City

5 and County of San Francisco, the San Francisco Sheriff’s Department, San Francisco County

6 Sheriff Michael Hennessey, and San Francisco County Sheriff’s Deputies Does 1 through 50

7 (collectively “defendants”). Subsequently, plaintiffs filed an amended complaint, which

8 seeks declaratory and injunctive relief, damages, and punitive damages.

9

Plaintiffs allege that they were victims of two unconstitutional policies and practices

10 of the San Francisco County jail system. First, plaintiffs allege that the County’s policy of 11 conducting strip searches and body cavity searches1 of arrestees held prior to arraignment

12 without reasonable suspicion that the individual possesses contraband or presents a security

13 threat violates the Fourth and Fourteenth Amendments of the United States Constitution, as

14 well as California law. Second, plaintiffs allege that the County’s policy of placing pretrial

15 detainees in “safety cells” as punishment and the blanket policy of strip searching all

16 individuals placed in safety cells violate the Fourth and Fourteenth Amendments of the

17 United States Constitution, as well as California law.

18

The strip search policy in place at the time of plaintiffs’ arrests and searches permitted

19 the Sheriff’s Department to conduct a strip search of arrestees charged with a crime

20 involving drugs, weapons or violence and arrestees with a criminal history involving drugs,

21 weapons or violence (as well as other categories of arrestees not relevant here). Arrestees

22 not in those categories could be strip searched if they signed a form consenting to be strip

23 searched. Seaton Decl. Ex. 3-5.

24

The safety cell policy in place at the time of plaintiffs’ arrests and searches permitted

25 arrestees to be placed in safety cells in any of the following situations:

26

27

1 The Court recognizes that there is a spectrum of possible search practices alleged in this

action, including strip searches and visual body cavity searches. However, for simplicity’s sake, the

28 Court will use “strip search” in this decision to generally cover all of the alleged conduct unless

otherwise specified.

2

Case 3:03-cv-01840-CRB Document 162 Filed 06/10/2004 Page 3 of 20

United States District Court
For the Northern District of California

1

1. She/he displays bizarre behavior which results in the destruction of property.

2

2. She/he displays bizarre behavior which reveals an intent to cause self-inflicted

harm.

3

3. She/he appears gravely disabled and less restrictive housing is unavailable.

4. She/he appears to be a danger to self or others.

4

5. She/he requests to use the safety cell.

6. For OBSERVATION ONLY, if it is determined by direct observation that the

5

prisoner has ingested items that may cause injury.

6 Seaton Decl. Ex. 18. Under the policy, any arrestee that is placed in a safety cell, for any

7 reason, shall be strip searched prior to placement. Id.

8

On January 21, 2004, the Sheriff enacted new search and safety cell policies. Under

9 the new strip search policy an arrestee may be strip searched at the time of booking only if

10 “There is articulable reasonable suspicion and supervisor approval on the Strip Search

11 Authorization Form prior to the strip search”; or the arrestee is charged with a crime of

12 drugs, weapons or violence; or has been convicted or arrested within the last 5 years for

13 drugs, weapons or violence. Hennessey Decl. Ex. A.

14

The new safety cell policy provides that safety cells may be used only under the

15 following circumstances:

16

1. When a prisoner is physically combative or otherwise presents an imminent

17

danger to others.

2. When a prisoner is a danger to self, as determined by actions or words,

18

including, but not limited to, physical or mental impairment to the point of

falling down, banging his/her head against the wall, making suicidal gestures or

19

threatening to commit suicide.

3. When there is reasonable suspicion the prisoner has ingested an injury-causing

20

item.

4. When a prisoner requests such a placement.

21

5. When Jail Health Services staff recommends a safety cell placement and the

Watch Commander concurs after reviewing the basis for the Jail Health Service

22

recommendation.

23 Hennessey Decl. Ex. B.

24

The policy explicitly provides that safety cells shall not be used for prisoners who only

25 refuse to be strip searched or refuse other orders and do not otherwise meet the criteria for

26 safety cell placement and that only the Jail Psychiatric Services staff may determine a

27 prisoner to be gravely disabled. Those placed in safety cells because the person is deemed a

28 danger to self or at his/her request will be stip searched. Those placed in safety cells because

3

Case 3:03-cv-01840-CRB Document 162 Filed 06/10/2004 Page 4 of 20

United States District Court
For the Northern District of California

1 the person is deemed gravely disabled by Jail Psychiatric staff will not be strip searched

2 unless Jail Psychiatric staff believe the person may be a danger to self. Others placed in

3 safety cells will only be strip searched if the supervisor approving the placement can

4 articulate reasonable suspicion that the prisoner has contraband hidden that poses a risk to

5 prisoners, staff, or self. Id.

6

A more detailed recitation of the strip search and safety cell policies that were in place

7 prior to January 21, 2004 and the new policies are outlined in Appendix A to this Order.

8

Also on January 21, 2004, plaintiffs moved for a preliminary injunction. On January

9 22, 2004, defendants filed a cross-complaint seeking declaratory relief in which this Court

10 would declare that plaintiffs’ case is moot, and that the Sheriff’s new policies regarding

11 searches and safety cell use comply with state and federal law.

12 II. Procedural Background

13

Mary Bull, et al. v. City and County of San Francisco, et al., Case No. 03-1840, was

14 filed in this Court on April 23, 2003. Subsequently, this Court determined that Lazaneo v. 15 City and County of San Francisco, Case No. 03-46922, Flick v. City and County of San

16 Francisco, Case No. 03-4022, and Yourke v. City and County of San Francisco, Case No. 03-

17 3105, are related to Bull.

18

The first hearing on the four motions currently before the Court was held on April 9,

19 2004. The Court, determining that further oral argument was necessary, also held hearings

20 on these motions on April 12 and April 13, and then requested supplemental briefing on the

21 class certification issue. The motions were then submitted.

22

DISCUSSION

23 I. Plaintiffs’ Motion for a Preliminary Injunction

24

Plaintiffs have moved for a preliminary injunction seeking to enjoin several of

25 defendants’ policies with respect to strip searches, body cavity searches, and the use of safety

26 cells. In particular, plaintiffs seek a preliminary injunction that does the following:

27

28 2Lazaneo settled on May 11, 2003.

4

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1

1) Enjoins pre-arraignment strip searches at any of the San Francisco County

Jails of arrestees charged with crimes not involving drugs, violence or weapons

2

unless a) there is particularized reasonable suspicion that a search willbe

productive of contraband or a weapon, b) the basis for that reasonable

3

suspicion is recorded in writing and c) the search is approved by a supervisor

prior to the search being conducted;

4

2) Enjoins pre-arraignment placement into safety cells of arrestees unless there

5

has been a prior determination by a licensed professional that the arrestee has

demonstrated behavior which reveals an intent to cause physical harm to

6

himself/herself or others;

7

3) Enjoins strip searches of persons placed in safety cells;

8

4) Enjoins removal of the clothing of persons placed in safety cells unless a

licensed professional has determined that the arrestee is likely to use the

9

clothing to harm himself.

10 Plaintiffs’ Memorandum in Support of Preliminary Injunction (“Plaintiff’s P.I. Memo.”) at 1.

11

As stated in open court, this Court denies plaintiffs’ motion for a preliminary

12 injunction because plaintiffs have failed to demonstrate that they will be exposed to a

13 significant risk of irreparable injury or immediate threatened injury under the new policy

14 enacted by the Sheriff on January 21, 2004. On a motion for a preliminary injunction, the

15 Court is looking at whether an extraordinary remedy shall be put in place based on a threat of

16 irreparable injury to the plaintiffs. There must be some imminence involved, otherwise the

17 litigation can proceed through its normal course. While plaintiffs argue that defendants’

18 history of ignoring its written policies demonstrates that even though there is a new policy in

19 place there is a likelihood that defendants will not follow the new policy, the Court does not

20 agree that there is an immediate threat of harm.

21

Given the new policy enacted by defendants, this Court finds no imminent threat of

22 injury, and concludes that a preliminary injunction is not needed to preserve the status quo

23 and prevent irreparable loss of rights before judgment.

24 II. Defendants’ Motion for Judgment on the Pleadings

25

Defendants’ cross-complaint seeks an order from this Court declaring that the San

26 Francisco Sheriff’s Department’s policies entitled “Searches” and “Safety Cell Use,” adopted

27 January 21, 2004, do not violate the United States Constitution or California state law.

28 Defendants have moved for judgment on the pleadings pursuant to Federal Rule of Civil

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1 Procedure 12(c) of their cross complaint. Plaintiffs offer two arguments why this motion

2 should be denied. First, they argue that defendants’ cross-complaint is not ripe for

3 adjudication, thus stripping the Court of jurisdiction over the cross-complaint. Second, they

4 argue that the Court should deny the motion because defendants have failed to provide an

5 adequate factual basis to establish the legality of the new policies.

6

As stated in open court, the Court agrees with plaintiffs that judgment on the

7 pleadings is not warranted. The Court declines to issue an advisory opinion as to the legality

8 of the new strip search policy. Additionally, in order to adjudicate this matter, the Court

9 must consider numerous factual issues, including the scope of the particular intrusion, the

10 manner in which it is conducted, the justification for initiating it, and the place in which it is

11 conducted. The Court is unable to make such factual determination on the pleadings alone;

12 thus, defendants’ motion for judgment on the pleadings under Rule 12(c) is denied.

13 III. Defendants’ Motion for Summary Judgment

14

Summary judgment is proper when “the pleadings, depositions, answers to

15 interrogatories, and admissions on file, together with the affidavits, if any, show that there is

16 no genuine issue as to any material fact and that the moving party is entitled to a judgment as

17 a matter of law.” Fed. R. Civ. P. 56(c). An issue is “genuine” only if there is a sufficient

18 evidentiary basis on which a reasonable fact finder could find for the nonmoving party, and a

19 dispute is “material” only if it could affect the outcome of the suit under governing law. See

20 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). A principal purpose of the

21 summary judgment procedure “is to isolate and dispose of factually unsupported claims.”

22 Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). “Where the record taken as a whole

23 could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine

24 issue for trial.’” Matsushita Elec. Ind. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986).

25

There are presently nine named plaintiffs in this suit. Defendants have moved for

26 partial summary judgment as follows: (1) on all state and federal stip search claims brought

27 by plaintiffs Zern, Corneau, Bronson, and Giampaoli (Counts One, Three, and Four); (2) on

28 //

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1 all state law strip search claims by plaintiffs Bull and Timbrook (Counts Three and Four);

2 and (3) on all claims by plaintiff Johnson (Counts One through Five).

3

Plaintiffs do not oppose the grant of partial summary judgment in favor of defendants

4 and against plaintiffs Bull, Timbrook, and Giampaoli on their claims under California Penal

5 Code section 4030 (Count Four), nor do they oppose a grant of partial summary judgment in

6 favor of defendants and against plaintiff Johnson on all claims. Accordingly, the Court

7 GRANTS IN PART defendants’ motion as to those issues not opposed by plaintiffs.

8

The parties continue to dispute defendants’ motion with respect to plaintiff

9 Giampaoli’s federal and remaining state strip search claims (Counts One and Three),

10 plaintiffs Zern, Corneau, and Bronson’s state and federal claims (Counts, One, Three, and 11 Four), and plaintiffs Bull and Timbrook’s remaining state claims (Counts Three and Five).3

12

As stated in open court, the Court concludes that summary judgment is not appropriate

13 at this time because there are still numerous material factual, as well as legal, issues that are

14 in dispute. Accordingly, the Court DENIES WITHOUT PREJUDICE the remaining portions

15 of defendants’ motion for summary judgment. Such issues will be addressed in further

16 proceedings.

17 IV. Plaintiffs’ Motion for Class Certification

18

A. Legal Standard for Class Certification

19

Class certification is governed by Rule 23, which sets forth a two-step procedure.

20 First, the following four requirements of Rule 23(a) must be satisfied: (1) numerosity, (2)

21 common questions of law or fact are present, (3) typicality, and (4) adequate representation.

22 Once those four requirements are met, the plaintiffs must show that the lawsuit qualifies for

23 class action status under one of the four possibilities found in Rule 23(b).

24

Plaintiffs seek to certify a class under Rule 23(b)(3), which is appropriate where the

25 court “finds that the questions of law or fact common to the members of the class

26 predominate over any questions affecting only individual members, and that a class action is

27

28

3Defendants have not moved for summary judgment with respect to plaintiffs Mangosing and

Fleming.

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1 superior to other available methods for the fair and efficient adjudication of the controversy.”

2 Fed. R. Civ. Pro. 23(b)(3).

3

Plaintiffs bear the burden of proving that certification is appropriate. See Hawkins v.

4 Comparet-Cassani, 251 F.3d 1230, 1238 (9th Cir. 2001). The court must rigorously analyze

5 whether the class action allegations meet the requirements of Rule 23. General Telephone

6 Co. of the Southwest v. Falcon, 457 U.S. 147, 161 (1982). “Because the early resolution of

7 the class certification question requires some degree of speculation, however, all that is

8 required is that the Court form a ‘reasonable judgment’ on each certification requirement. In

9 formulating this judgment, the Court may properly consider both the allegations of the class

10 action complaint and the supplemental evidentiary submissions of the parties.” In re Citric

11 Acid Antitrust Litigation, 1996 WL 655791 *2 (N.D. Cal. Oct. 2, 1996).

12

B. Analysis

13

Plaintiffs propose that the following class of persons be certified as a class under Rule

14 23(b)(3):

15

For the claims brought under 42 USC § 1983 (Count One of the First

16

Amended Complaint); the California Constitution, Article I §1 (Count Three of

the First Amended Complaint); and California Penal Code § 4030(f) (Count

17

Four of the First Amended Complaint); the state and federal constitutional

claims include both felony and misdemeanor arrestees with the exceptions

18

stated herein; the Penal Code § 4030 claim includes misdemeanor arrestess

only:

19

All persons who, during the applicable period of limitations, and

20

continuing to date, were arrested on any charge not involving weapons,

controlled substances, or a felony charge of violence, and not involving a

21

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

22

cavity strip search by defendants before arraignment at a San Francisco County

Jail facility without any individualized reasonable suspicion that they were

23

concealing contraband. This class also includes 1) all arrestees who were

subjected to subsequent blanket strip search(es) before arraignment after the

24

initial strip search, without any reasonable individualized suspicion that they

had subsequently acquired and hidden contraband on their persons; and 2) all

25

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

26

County Jails.

27 Plaintiffs’ M otion for Class Certification at 1.

28 //

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1

Defendants argue that plaintiffs have not met the requirements of Rule 23(a) and Rule

2 23(b)(3). In particular, defendants argue that plaintiffs’ claims are not typical of the class

3 and that the individual fact questions far outnumber the common questions such that the

4 predominance and superiority elements of Rule 23(b)(3) are not met. Additionally,

5 defendants argue that plaintiffs’ state law claims cannot be certified as a class.

6

“The Rule 23(b)(3) predominance inquiry tests whether proposed classes are

7 sufficiently cohesive to warrant adjudication by representation.” Amchem Products Inc. v.

8 Windsor, 521 U.S. 591, 623 (1997).

9

The crux of defendants argument against class certification is that the issues involved

10 in this litigation entail detailed individualized determinations. They argue that the individual

11 background of the plaintiffs make it difficult to determine whether someone is a member of

12 the class, in addition to the more pressing question of whether that person’s rights have been

13 violated. The determination of whether the plaintiffs suffered an illegal strip search involves

14 a determination of whether the institutional strip search policy in place was unlawful.

15 However, even if the policy is unconstitutional, defendants argue that the individual

16 plaintiff’s rights may not have been violated if the search was done based on reasonable

17 suspicion. Thus, according to defendants, plaintiffs have not met the predominance element

18 of Rule 23(b)(3) because even if the constitutionality of the institutional policy is the same

19 for all plaintiffs, whether there was reasonable suspicion for each search will depend on the

20 individual circumstances involved.

21

Defendants argument does not defeat class certification. The arguments presented by

22 defendants are virtually the same arguments that were presented by the defendants in Tardiff

23 v. Knox County, 365 F.3d 1, 7 (1st Cir. 2004), where the First Circuit affirmed the

24 certification of class actions in similar challenges to county strip search policies. Tardiff was

25 a consolidation of two district court cases in which several arrestees brought separate section

26 1983 suits against two different counties alleging that the policies of conducting routine,

27 suspicionless strip searches of all pre-arraignment jail detainees was unconstitutional. Id. at

28 2. Both district courts granted the plaintiffs’ motions for class certification. Id. On appeal,

9

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1 the First Circuit determined that while some individualized evaluations may be necessary,

2 overall it could be assumed that the plaintiffs were searched based on the county’s custom or

3 policy, and any individual questions did not defeat certification. Id. at 5-6. Defendants argue

4 that Tardiff is not applicable to this case because, unlike Tardiff, the nature of the strip

5 search policy is not at issue here. The Court disagrees and finds the reasoning in Tardiff to

6 be persuasive.

7

Similar to Tardiff, what really is at issue here is the constitutionality of the policies

8 and practices of the Sheriff’s Department, which were applied to all class members. While

9 the “nature” of the department’s policy and practices is not at issue, the legality of those

10 policy and practices is. The common legal question presented by the members of the

11 proposed class of whether the Sheriff’s strip search policy is unconstitutional predominates

12 this action, and the allegations of the named plaintiffs closely track the claims of the class

13 and share a common legal theory. Given the alleged uniform and indiscriminate nature of the

14 strip search policy and practice at issue, including the practice of strip searching all those

15 placed in safety cells, it appears that liability can be determined on a class-wide rather than

16 an individual basis.

17

However, the Court agrees with defendants that the class definition must specifically

18 exclude all persons arrested on a charge of violence, regardless of whether it is a felony or

19 misdemeanor charge of violence. The class definition should be amended accordingly.

20

As such, the class definition itself will address some of defendants’ concerns because

21 it does not include those plaintiffs arrested on charges involving weapons, controlled

22 substances, or a felony charge of violence. As the Tardiff court noted, the legality of the

23 strip search policy presents complicated issues because it might be lawful as to some groups

24 of arrestees and not others, but that issue is somewhat addressed by limiting the class

25 definition to certain arrestees. 365 F.3d at 5. Moreover, although it may still be determined

26 that it was permissible to strip search some within the group of arrestees that remain in the

27 class, that determination presents a common set of issues that is proper for resolution on a

28 class-wide basis. Id.

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1

The class includes only those subjected to a blanket visual body cavity strip search

2 without any individualized reasonable suspicion that they were concealing contraband.

3 Thus, those that were subjected to searches based on individualized reasonable suspicion are

4 not included in the class. The issue of whether a post hoc determination of reasonable

5 suspicion is sufficient to avoid a constitutional violation will not be addressed at this time.

6 Nonetheless, even if there is a post hoc determination of reasonable suspicion, that does not

7 mean that an individual was not searched pursuant to a blanket visual body cavity strip

8 search, the constitutionality of which will be determined in this litigation.

9

As stated in Tardiff:

10

Without prejudging disputable issues, we think that such threats of undue

11

complications as to liability are limited in this case. If there was in fact a rule, custom

or policy of strip searching every arrestee or a substantially overlarge category, then it

12

is a fair guess that most arrestees so classed were strip searched on this basis. There

might yet be some number as to who defensible individual judgments to strip search

13

were actually made or could have been made--two different situations with different

legal implications; but whoever has the burden of identifying such person, they may

14

well not be numerous.

15 Id. at 6.

16

The situation in this case is even more appropriate for class certification because

17 defendants acknowledge that there was a rule, custom, or policy in place regarding strip

18 searches, and it is this policy that plaintiffs challenge. Thus, it is a fair guess that most

19 arrestees were searched on that basis. Nonetheless, this Court agrees with the reasoning of

20 the Tardiff court that any potential individualized issues can be addressed later in the

21 litigation and do not defeat class certification.

22

This Court also agrees with the Tardiff court that the “individualized damage

23 decisions [do] not ordinarily defeat predominance where there are still disputed common

24 issues as to liability.” Id.

25

There are still numerous questions that need to be resolved, such as whether it is

26 constitutional to have a blanket policy that allows the Sheriff’s Department to search all

27 those charged with crimes of violence to visual body cavity searches; how to define crimes of

28 violence that would warrant such searches; and whether it is constitutional to have a blanket

11

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1 policy to search all those placed in safety cells. Regardless, whatever is decided on those

2 issues, would seemingly affect all class members.

3

As to superiority, at this stage it is apparent that the resolution of the liability and

4 damages issues within the context of a class action is likely to be a far more efficient method

5 of adjudication than the individual assertion of lawsuits grounded on similar sets of facts.

6

Based on the information that is currently before the Court, the Court finds that

7 individualized issues will arise only in a limited number of cases. Accordingly, the Court

8 concludes that all of the requirements of Rule 23 have been met and certification of a class is

9 warranted.

10

Importantly, however, “Determinations to certify a class depend on initial predication

11 and are always subject to revision.” Tardiff, 365 F.3d at 6 (citing General Telephone Co.,

12 457 U.S. at 160). This Court can always decertify the class should that become necessary.

13

CONCLUSION

14

For the foregoing reasons, the Court hereby DENIES plaintiffs’ motion for a

15 preliminary injunction, DENIES defendants’ motion for judgment on the pleadings,

16 GRANTS IN PART AND DENIES WITHOUT PREJUDICE IN PART defendants’ motion

17 for partial summary judgment, and GRANTS plaintiffs’ motion for class certification.

18

Accordingly, the Court certifies the following class:

19

All persons who, during the applicable period of limitations, and continuing to date,

20 were arrested on any charge not involving weapons, controlled substances, or a charge of

21 violence, and not involving a violation of parole or a violation of probation (where consent to

22 search is a condition of such probation), and who were subjected to a blanket visual body

23 cavity strip search by defendants before arraignment at a San Francisco County jail facility

24 without any individualized reasonable suspicion that they were concealing contraband. This

25 class also includes 1) all arrestees who were subjected to subsequent blanket strip search(es)

26 before arraignment after the initial strip search, without any reasonable individualized

27 suspicion that they had subsequently acquired and hidden contraband on their persons; and 2)

28 //

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1 all persons who, prior to arraignment, were subjected to blanket visual body cavity search(es)

2 incident to placement in a “safety cell” at any of the San Francisco County jails.

3

IT IS SO ORDERED.

4

5

6 Dated: June 10, 2004 7

/s/ CHARLES R. BREYER UNITED STATES DISTRICT JUDGE

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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1 2 I.

APPENDIX A Strip Search Policy Prior to January 21, 20044

3

POLICY:

All arrestees entering the San Francisco County Jail System shall be processed through

4

a booking search. The search shall either be a “pat search” performed in conjunction

with a hand held metal detector, and/or a strip search. The type of search will be based

5

of the elements of the current criminal charges, prior criminal history or on reasonable

suspicion that the prisoner is in possession of contraband.

6

PURPOSE:

7

To protect inmates, staff and visitors by establishing policy and procedure for

searching inmates to detect and recover weapons, drugs, and other contraband

8

concealed upon their person.

9

DEFINITIONS:

10

* * *

11

Visual Body Cavity Search - means visual inspection of a body cavity

12

Strip Search (same as Custodial Search) - means a search which requires a person to

remove or arrange some or all of his or her clothing so as to permit a visual inspection

13

of the underclothing, breasts, buttocks or genitalia of such person. Includes a visual

inspection of the mouth, ears, hair, hands, skin folds, armpits as well as a thorough

14

search of all clothing items.

15

* * *

16

PROCEDURE:

17

* * *

18

II. Strip Search Criteria

19

A. A strip search shall be conducted by an officer of the same sex, and may be

conducted on a person received at the Intake and Release facility, without

20

written authorization, when any of the following conditions apply:

21

1. An arrestee charged with a crime involving drugs, weapons or violence.

22

2. An arrestee with a criminal history involving drugs, weapons or

violence. Criminal history shall be verified and means a conviction for

23

drugs, weapons or violence within the preceding five years or multiple

arrests within the last five years for drugs, weapons or violence. . . .

24

* * *

25

26

27

4The policy went through several iterations and clarifications prior to this date; this statement

incorporates any relevant changes to the policy and reflects the policy as it existed up until January

28 21, 2004. One notation on a clarification memorandum provides that this policy applies to “Felony

and misdemeanor charges. ” Seaton Decl., Ex. 5.

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1

10. A person assigned a custody level by Classification and scheduled for

custodial housing.

2

* * *

3

B. Authorization to Perform a Strip Search of arrestees who do not fall within

4

criterial listed in IIA

5

If any arrestee or person accepted at intake does not fall within Section

II above, permission to conduct a strip search may be requested by the

6

arresting, transporting or booking officer when he/she has a reasonable

suspicion based on articulable facts that the arrestee or person may

7

possess contraband. Permission to conduct a strip search may be

requested by completing Part A, Request for Strip Search, of the San

8

Francisco Sheriff’s Department - STRIP SEARCH AUTHORIZATION

form.

9

Seaton Decl. Ex. 3-5 (emphasis in original). The policy also provided that all prisoners should

10 be strip searched before the conclusion of the watch. Id.

11 II. Safety Cell Policy Prior to January 21, 2004

12

POLICY:

The San Francisco Sheriff’s Department permits the use of a safety cell to

13

house a prisoner in conformity with California Code of Regulations, Title 15,

Section 1052, 1055 and 1083. Confinement to a safety cell is only justified for

14

a minimum period of time necessary, until the prisoner can be removed for

medical or psychiatric attention. A safety cell shall not be used as disciplinary

15

housing.

16

PURPOSE:

To provide consistent guidelines for the use of safety cells in each facility. To

17

protect prisoners and staff. To delineate lines of authority and responsibility in

the placement in and removal of a prisoner from a safety cell. To ensure

18

documentation of all phases of the safety cell process.

19

DEFINITIONS:

Safety Cell - A padded, single cell. Some safety cells have toilet and sink

20

features, some have toilet facilities that are mounted into the floor, some have

raised padded toilet fixtures and some have no toilet or sink facilities.

21

* * *

22

Danger to Self or Others - The prisoner presents an immediate threat that she/he

23

will inflict actual physical injury on her/himself or another person.

24

PROCEDURE:

25

I. Permitted Use of Safety Cells

26

A. A prisoner may be placed in a safety cell when:

27

1. She/he displays bizarre behavior which results in the destruction

of property.

28

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 // 28 //

2. She/he displays bizarre behavior which reveals an intent to cause self-inflicted harm.
3. She/he appears gravely disabled and less restrictive housing is unavailable.
4. She/he appears to be a danger to self or others.
5. She/he requests to use the safety cell.
6. For OBSERVATION ONLY, if it is determined by direct observation that the prisoner has ingested items that may cause injury.
B. A safety cell SHALL NOT be used under any circumstances for disciplinary or punitive purposes. A prisoner SHALL NOT be placed in a safety cell for merely being uncooperative with staff or being verbally abusive to staff.
* * *
II. Procedure for Use of the Safety Cell
* * *
C. When a prisoner is placed in a safety cell at the initiation of custody staff, the custody staff person will immediately contact the Watch Commander to approve the use of the safety cell. The officer will immediately contact [Jail M edical Services] to arrange for a medical evaluation of the prisoner. The date, time and reason for such placement shall be documented on all appropriate forms.
1. When a prisoner is placed in a safety cell, for any reason, that prisoner shall be strip searched prior to placement.
a. In the event the prisoner is not cooperative during a strip search, she/he will remain in restraint while her/his clothing is cut off in a manner that prevents injury to the prisoner.
b. Unless placement is made because th prisoner has been determined to be suicidal, substitute clothing will be immediately provided.
2. When a prisoner is placed in a safety cell because of bizarre behavior resulting in destruction of property or revealing an intent to cause self inflicted harm, [Jail M edical Services] will ensure that a medical assessment is completed within 12 hours or at the next daily sick call, whichever is earlier.
* * *

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1

III. Standards for Treatment of Prisoners in Safety Cells

2

A. When a prisoner is confined in a safety cell without internal drinking

facilities, water shall be provided upon prisoner request or at least every

3

2 hours. . . .

4

B. Prisoners in safety cells will be fed meals on the regular schedule. . . .

5

C. Prisoners shall be deprived of clothing, mattress or blankets ONLY

when it has been demonstrated that:

6

1. The prisoner will use them to harm her/himself.

7

2. The prisoner will destroy them.

8

3. The prisoner will use them to clog the plumbing or block

9

observation windows.

10

D. Deprivation of clothing, mattress or blankets must be approved by the

Watch Commander and so documented on the Safety Cell housing

11

Form.

12

1. The reasons for deprivation will be documented.

13

* * *

14

3. SFSD staff will provide a prisoner who has been deprived of

clothing a suitably designed “safety garment” or fire retardent

15

[sic] blanket for the prisoner’s personal privacy, unless specific,

identifiable risks to the prisoner’s safety or to the security of the

16

facility are documented.

17 Seaton Decl. Ex. 18 (emphasis in original).

18 III. Strip Search Policy Issued January 21, 2004

19

PROCEDURE

II. Permissible Strip Searches

20

A. Prior to Intake Booking

21

1. A prisoner may be strip searched prior to booking only if:

22

a. There is reasonable suspicion and supervisor approval on the

23

Strip Search Authorization Form prior to the search; or

24

b. Supervisor approval is not required if the prisoner:

25

1. Is charged with a crime of drugs, (except when arrested

for violation of Health and Safety Code 11550 only),

26

weapons and/or violence; or

27

2. Has been convicted or arrested within the last 5 years for

drugs, (except when arrested for violation of Health and

28

Safety Code 11550 only), weapons and/or violence, as

documented in the criminal history information system; or

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1

3. Is charged under California Penal Code Section 3056 or

booked with a State Parole hold; or

2

4. Is charged under California Penal Code Section 1203.2;

3

or

4

5. Is in the custody of another agency and is booked into the

jail for safekeeping, including a prisoner booked on a U.S.

5

Marshall [sic] hold.

6

B. At Intake/Booking

7

1. Prisoners may be strip searched at the time of booking only if:

8

a. There is articulable reasonable suspicion and supervisor approval

on the Strip Search Authorization Form prior to the strip search;

9

or

10

b. The prisoner is:

11

1. Is charged with a crime of drugs, (except when arrested

for violation of Health and Safety Code 11550 only),

12

weapons and/or violence; or

13

2. Has been convicted or arrested within the last 5 years for

drugs, (except when arrested for violation of Health and

14

Safety Code 11550 only), weapons and/or violence, as

documented in the criminal history information system; or

15

3. Is charged under California Penal Code Section 3056 or

16

booked with a State Parole hold; or

17

4. Is charged under California Penal Code Section 1203.2;

or

18

5. Is in the custody of another agency and is booked into the

19

jail for safekeeping, including a prisoner booked on a U.S.

Marshall [sic] hold.

20

Hennessey Decl. Ex. A (emphasis in original).

21

22 IV. Safety Cell Policy Issued January 21, 2004

23

POLICY: It is the policy of the San Francisco Sheriff’s Department to use safety

cells only when necessary to hold those prisoners who display behavior

24

which reveals an intent to cause physical harm to self or others.

25

DEFINITIONS:

Combative: A prisoner whose behavior requires physical restraint by one or

26

more deputies to prevent harm to himself or herself, to staff and/or to other

prisoners.

27

Danger to Self: A prisoner making overt gestures to harm himself or herself or

28

who articulates a strong desire to harm himself or herself.

G:\ CRBALL\2003\1840\Order 2 class cert etc. wpd

18

Case 3:03-cv-01840-CRB Document 162 Filed 06/10/2004 Page 19 of 20

United States District Court
For the Northern District of California

1

Danger to Others: A prisoner whose behavior is likely to cause harm to staff or

other prisoners.

2

* * *

3

Safety Cell: A padded single cell[.]

4

PROCEDURE:

5

I. General

6

A. A prisoner will be placed in a safety cell only with the approval of the

7

Facility Commander, the Facility Watch Commander or a designated

physician as delegated by the Sheriff.

8

B. Safety cells may be used only under the following circumstances:

9

1. When a prisoner is physically combative or otherwise presents an

10

imminent danger to others.

11

2. When a prisoner is a danger to self, as determined by actions or

words, including, but not limited to, physical or mental

12

impairment to the point of falling down, banging his/her head

against the wall, making suicidal gestures or threatening to

13

commit suicide.

14

3. When there is reasonable suspicion the prisoner has ingested an

injury-causing item.

15

4. When a prisoner requests such a placement.

16

5. When Jail Health Services staff recommends a safety cell

17

placement and the Watch Commander concurs after reviewing

the basis for the Jail Health Service recommendation.

18

C. The safety cell shall not be used for prisoners who only refuse to be strip

19

searched or refuse other orders and do not otherwise meet the criteria for

safety cell placement above.

20

D. Only Jail Psychiatric Services staff may determine a prisoner to be

21

gravely disabled.

22

E. In no case shall the safety cell be used for punishment or as a substitute

for treatment.

23

II. Safety Cell Placement

24

* * *

25

F. The reason for the safety cell placement will determine whether the

26

prisoner is stripped of clothing.

27

1. In safety cell placements that result because the prisoner is a

danger to self or at his/her request, the prisoner will be required

28

to remove all clothing and a stip search will be conducted to

ensure the prisoner does not have contraband that poses a threat

G:\ CRBALL\2003\1840\Order 2 class cert etc. wpd

19

Case 3:03-cv-01840-CRB Document 162 Filed 06/10/2004 Page 20 of 20

United States District Court
For the Northern District of California

1

to his/her safety. The prisoner will immediately be given a

safety cell garment and/or safety cell blanket.

2

2. Prisoners placed in a safety cell after being determined to be

3

gravely disabled by Jail Psychiatric staff will not be strip

searched unless Jail Psychiatric staff believe the person may be

4

a danger to self. Jail Psychiatric staff will document the reason

for the strip search on the Strip Search Authorization form and in

5

their psychiatric records.

6

3. In safety cell placements that result because a prisoner is a

danger to others, the prisoner will be pat searched before being

7

placed in the safety cell. Clothing will not be removed nor will

a strip search be conducted unless the supervisor approving the

8

placement can articulate reasonable suspicion that the prisoner

has contraband hidden that poses a risk to prisoners, staff, or self.

9

4. The approving supervisor must document the reasonable

10

suspicion justifying the strip search and complete the Strip

Search Authorization form. The form shall be kept on file at the

11

jail facility for one year. After one year, the records should be

put into storage and retained in accordance with the department

12

records storage policy.

13

5. Any contraband found must also be documented in an Incident

Report to be attached to the Safety Cell Observation form.

14

G. Once the prisoner is in the safety cell, the deputy responsible for the

15

placement will provide the prisoner with the following:

16

1. If in the safety cell as a danger to self or at his/her own request,

the prisoner will be given a safety cell garment and/or safety cell

17

blanket immediately following the search for contraband.

18

2. For all other safety cell placements, the prisoner may be given an

exchange of jail clothing or a safety cell garment and/or a safety

19

blanket immediately following the placement, if necessary.

20

3. The actual time when items were provided will be documented

on the Safety Cell Observation form.

21

Hennessey Decl. Ex. B (emphasis in original).

22

23

24

25

26

27

28

G:\ CRBALL\2003\1840\Order 2 class cert etc. wpd

20

 
 Case 3:03-cv-01840 Document 214-1 Filed 08/12/2005 Page 1 of 22

1 LAW OFFICE OF MARK E. MERIN

Mark E. Merin, SBN 043849

2 Cathleen A. Williams, SBN 68029

Jeffrey I. Schwarzschild, SBN 192086 3 2001 P Street, Suite 100

Sacramento, CA 95814 4 Telephone: 916/443-6911

5

Facsimile: 916/447-8336 E-Mail: mark@markmerin.com

6 CASPER, MEADOWS, SCHWARTZ & COOK

7

Andrew Charles Schwartz, SBN 064578 2121 N. California Blvd., Suite 1020

8 Walnut Creek, CA 94596 Telephone: 925/947-1147

9 Facsimile: 925/947-1131 E-Mail: schwartz@cmslaw.com

10

Attorneys for Plaintiffs

11

—o0o— 12

UNITED STATES DISTRICT COURT 13

14

NORTHERN DISTRICT OF CALIFORNIA

15

—o0o—

16 MARY BULL, JONAH ZERN, and all others CASE NO: C 03-1840 CRB

similarly situated, 17

PLAINTIFFS’ OPPOSITION TO

Plaintiffs, 18

DEFENDANT SHERIFF MICHAEL HENNESSEY’S MOTION FOR

19 vs.

PARTIAL SUMMARY JUDGMENT RE: QUALIFIED IMMUNITY

20

CITY AND COUNTY OF SAN FRANCISCO, et al.,

DATE:

August 30, 2005

21

Defendants.

TIME: CTRM:

10:00 a.m. 8

22

JUDGE: Hon. Charles R. Breyer

23

COMPLAINT FILED: April 23, 2003

TRIAL DATE:

Not Set

24

25 \\\ 26 \\\ 27 \\\ 28 \\\

PLTS’ OPPOSITION TO DEF SHERIFF HENNESSEY’S MOTION FOR PARTIAL SUMMARY JUDGMENT RE: QUALIFIED IMMUNITY

MARY BULL, et al. v. CITY AND COUNTY OF SAN FRANCISCO, et al.

USDC, Northern District, Case No. C 03-1840 CRB

Case 3:03-cv-01840 Document 214-1 Filed 08/12/2005 Page 2 of 22

1

TABLE OF CONTENTS

2 INTRODUCTION AND SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

3 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

4

I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

5

II. DEFENDANTS VIOLATED THE FOURTH AMENDMENT BY

6

IMPLEMENTING BLANKET POLICIES FOR THE STRIP SEARCHING OF MINOR OFFENSE ARRESTEES BROUGHT TO THE JAIL BEFORE

7

ARRAIGNMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

8

A. Temporary Detainees – Those Arrested for Minor Offenses and Held at the

Jail until Arraignment – Are Protected from Strip Searches under the Fourth

9

Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

10

B. Sheriff Hennessey Has Made No Showing That the Jail’s Policy of Strip

Searching Minor Offense Arrestees Is Justified by Security Concerns . . . 9

11

C. All “Temporary Detainees” Brought to the Jail on Minor Offenses Are

12

Protected Against Strip Search, Even If They Are Moved out of the Booking

Area into the Housing Area of the Jail . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 13

D. Temporary Detainees Placed in “Safety” Cells (Solitary Confinement) Are

14

Protected from Strip Searches by the Fourth Amendment . . . . . . . . . . . 11

15

E. Arrestees Brought to the Jail on Offenses Which Do Not Require Violent

16

Conduct as an Element of the Offense or as the Basis of the Arrest Are Protected by the Fourth Amendment from Strip Searches Without

17

Individualized Suspicion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

18

III. IT SHOULD HAVE BEEN CLEAR TO SHERIFF HENNESSEY THAT THE

CHALLENGED POLICIES WERE UNLAWFUL AND THEREFORE HE IS NOT

19

ENTITLED TO IMMUNITY FROM LIABILITY . . . . . . . . . . . . . . . . . . . . . . . 13

20

A. Sheriff Hennessey Should Have Known, and in Fact, Did Know, That the

Jail’s Policies of Strip Searching Minor Offense Arrestees Before

21

Arraignment, Simply Because They Were “Classified’ for Jail Housing, Was

Unlawful . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 22

B. Sheriff Hennessey Should Have Known the Jail’s Policy for Strip Searching

23

All Safety Cell Placements Was Unlawful . . . . . . . . . . . . . . . . . . . . . . . 16

24

C. Sheriff Hennessey Should Have Known That the Ninth Circuit Has Limited

25

the Strip Search of Arrestees Prior to Arraignment to Those Who Are Charged with Offenses Involving Violence in the Absence of Particularized

26

Reasonable Suspicion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

27 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

28

PLTS’ OPPOSITION TO DEF SHERIFF HENNESSEY’S MOTION FOR PARTIAL SUMMARY JUDGMENT RE: QUALIFIED IMMUNITY

MARY BULL, et al. v. CITY AND COUNTY OF SAN FRANCISCO, et al.

USDC, Northern District, Case No. C 03-1840 CRB

i

Case 3:03-cv-01840 Document 214-1 Filed 08/12/2005 Page 3 of 22

1

TABLE OF AUTHORITIES

2

Cases

Page(s)

3 ACT UP!/Portland v. Bagley 917 F.2d 298 (9th Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 6, 12, 15
4

5

Adnan v. Santa Clara County Dept. of Corrections 2002 WL 32058464 (N.D.Cal. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

6 Anderson v. Creighton 7 483 U.S. 635 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

8

Arpin v. Santa Clara Valley Transportation Agency 261 F.3d 912 (9th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

9 Bell v. Wolfish

10 (1979) 441 U.S. 520. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 12, 17

11 Deorle v. Rutherford 272 F.3d 1272 (9th Cir.2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
12
Eng v. Skully 13 146 F.R.D. 74 (S.D.N.Y.1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

14 Flores v. Morgan Hill Unified School Dist. 15 324 F.3d 1130 (9th Cir.2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

16

Fuller v. M.G. Jewelry 950 F.2d 1437 (9th Cir. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 11-13, 15

17 Giles v. Ackerman
18 746 F.2d 614 (9th Cir. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 4, 5, 7, 8, 10, 13, 14

19 Hammond v. Kunard 148 F.3d 692 (7th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
20 Headwaters Forest Def. v. County of Humboldt
21 276 F.3d 1125 (9th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

22 Hope v. Pelzer 536 U.S. 730 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 14, 16
23

24

Kennedy v. City of Ridgefield 411 F.3d 1134 (9th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

25 Kennedy v. Los Angeles Police Department, 26 901 F.2d 702 (9th Cir. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8, 11, 16

27

Logan v. Shealy 660 F.2d 1007 (4th Cir. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

28

PLTS’ OPPOSITION TO DEF SHERIFF HENNESSEY’S MOTION FOR PARTIAL SUMMARY JUDGMENT RE: QUALIFIED IMMUNITY

MARY BULL, et al. v. CITY AND COUNTY OF SAN FRANCISCO, et al.

USDC, Northern District, Case No. C 03-1840 CRB

ii

Case 3:03-cv-01840 Document 214-1 Filed 08/12/2005 Page 4 of 22

1 Masters v. Crouch 872 F.2d 1248 (6th Cir. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2
Moreno v. Baca 3 (2005) 400 F.3d 1152 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

4 Motley v. Parks 5 383 F.3d 1058 (9th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

6

Parkes v. County of San Diego 345 F. Supp.2d 1071 (S.D. CA 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

7 Rivero v. City and County of San Francisco 8 316 F.3d 857 (9th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

9 San Jose Charter of Hells Angels Motorcycle Club v. City of San Jose 402 F.3d 962 (9th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 14, 16
10 Saucier v. Katz
11 533 U.S. 194 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

12 Silvia v. Clackamas County 2001 WL 34039482 (D. Or. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
13
Sissoko v. Rocha 14 412 F.3d 1021 (9th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

15 Smith v. Montgomery 16 547 F.Supp.592 (D.Md.1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

17

Thompson v. City of Los Angeles 885 F.2d 1439 (9th Cir. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7, 10, 11, 14, 18

18 Ward v. San Diego County
19 791 F.2d 1329 (9th Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

20 Wong v. Beebe 373 F.3d 952 (9th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
21 Statutes
22 23 California Penal Code § 1270 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 24 Federal Rule of Evidence 407 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
25 42 U.S.C. § 1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

26

27

28

PLTS’ OPPOSITION TO DEF SHERIFF HENNESSEY’S MOTION FOR PARTIAL SUMMARY JUDGMENT RE: QUALIFIED IMMUNITY

MARY BULL, et al. v. CITY AND COUNTY OF SAN FRANCISCO, et al.

USDC, Northern District, Case No. C 03-1840 CRB

iii

Case 3:03-cv-01840 Document 214-1 Filed 08/12/2005 Page 5 of 22

1

INTRODUCTION AND SUMMARY OF ARGUMENT

2

Defendants’ motion for partial summary judgment argues that it was not clearly established

3 in 2003 that it was unlawful to strip search minor offenders brought to the jail after their arrests and

4 therefore the Sheriff is immune from liability for the blanket policies that required such strip

5 searches. In ruling on the motion, the court faces an unusual situation. This is the rare case in which

6 the law in question is not only clearly established, but has been held to be clearly established. In

7 1992, the Ninth Circuit observed, “At the time Appellees were searched, it was clearly established

8 in this circuit that it was unlawful to search an arrestee brought to the jail on the charge of

9 committing a minor offense unless the officer directing the search possesses ‘a reasonable suspicion

10 that the individual arrestee is carrying or concealing contraband’. (Giles v. Ackerman, 746 F.2d 11 614,617, (9th Cir. 1984) cert denied, 471 U.S. 1053…” ACT UP!/Portland v. Bagley 917 F.2d 12 298,301 (9th Cir. 1992) [emphasis added].)

13

According to defendants, Sheriff Hennessey is entitled to qualified immunity because he

14 could not be reasonably expected to apply this holding. Ninth Circuit precedent is inapplicable

15 because the San Francisco jail is different from other jails: they claim there is more smuggling

16 activity in San Francisco, and more contraband has been found in the cells where prisoners await

17 disposition of their cases or serve their sentences after conviction. Moreover, the defendants argue,

18 the Ninth Circuit’s holding is of limited scope: it extends only to the booking area of the jail where

19 such minor offense arrestees are initially held – once these arrestees are moved out of this area, at

20 the jail’s sole discretion, into the housing area or into solitary “safety” cells, they no longer are

21 protected from strip searches even though they could still bail out, even though they could be 22 released on OR, or be released at or before arraignment1 because the charges are dismissed.

23 Moreover, the defendants contend that they could lawfully strip search arrestees who were brought

24 \\\

25

26
1 California Penal Code § 1270 provides the misdemeanants the right to OR release at arraignment “unless the
27 court makes a finding on the record . . . that an own recognizance release will compromise public safety . . ..” All the
representative plaintiffs in this case were released before or at arraignment and most were never charged at all – clearly
28 not a group properly subject to a blanket strip search.

PLTS’ OPPOSITION TO DEF SHERIFF HENNESSEY’S MOTION FOR PARTIAL SUMMARY JUDGMENT RE: QUALIFIED IMMUNITY

MARY BULL, et al. v. CITY AND COUNTY OF SAN FRANCISCO, et al.

USDC, Northern District, Case No. C 03-1840 CRB

1

Case 3:03-cv-01840 Document 214-1 Filed 08/12/2005 Page 6 of 22

1 to the jail on offenses which might or might not involve “violent” conduct, even if the arrestees were

2 not otherwise suspicious.

3

In short, because of these limitations and distinctions, defendants take the position that the

4 Sheriff was free to promulgate a policy that required the strip searching of all arrestees who were

5 assigned to jail housing (“classified”) before arraignment. He was also free to promulgate a policy

6 of strip searching all persons who were placed in “safety” or solitary cells. The Sheriff further

7 argues that the jail was free to strip search arrestees who are not otherwise suspicious on the basis

8 of the charged offense alone -- even in those cases where “violence” was not an element of the

9 offense, and the arrest could be effected without probable cause to believe a “violent” act had been

10 committed.

11

The bulk of the evidence and the legal arguments which the Court will consider in deciding

12 whether qualified immunity protects the Sheriff are already before the Court. Plaintiffs’ motion for

13 partial summary judgment details the strip-search policies which Plaintiffs assert violated class

14 members’ constitutional and statutory rights, and both the plaintiffs and defendants develop their 15 respective views of the law.2 In this cross motion, however, defendants counter attack with a

16 dramatic rejection of all Ninth Circuit precedent, asserting, as noted above, it is distinguishable on

17 the facts because the San Francisco is a big, busy jail full of drug addicts and (apparently) hardened

18 criminals who are intent upon smuggling drugs and weapons into the jail any way theycan, including

19 the use of every imaginable body cavity.

20

This attempt to distinguish and limit Ninth Circuit law requires the court to consider the

21 salient fact which brought the Ninth Circuit to rule that it is unlawful to strip search arrestees brought

22 to the jail for minor offenses: namely, that in the prior cases, defendants were unable to show that

23 minor offense arrestees posed a threat to jail security. As a class, there was no evidence they had a

24

25

2 The Sheriff’s qualified immunity motion does not address or defend the following categories of individuals

subject to a strip-search: (1) detainees convicted of a crime involving drugs, weapons or violence within the past five

26 years or arrested on multiple occasions for such crimes during the same period; (2) detainees arrested for a probation

violation; (3) detainees arrested based on federal charge; (4) detainees in transit from one p art of the state to another;

27 (5) detainees arrested outside of San Francisco pursuant to a San F rancisc o warrant; (6) detainees who “co nsented” to

a strip search following initial booking; and (7) detainees who refused to consent to custodial searches and therefore were
28 imme diately classified for housing.

PLTS’ OPPOSITION TO DEF SHERIFF HENNESSEY’S MOTION FOR PARTIAL SUMMARY JUDGMENT RE: QUALIFIED IMMUNITY

MARY BULL, et al. v. CITY AND COUNTY OF SAN FRANCISCO, et al.

USDC, Northern District, Case No. C 03-1840 CRB

2

Case 3:03-cv-01840 Document 214-1 Filed 08/12/2005 Page 7 of 22

1 propensity to smuggle contraband into the jail after they were arrested. If the defendants can show

2 that this factual circumstance was different in San Francisco, if there is an appreciable risk, a

3 reasonably suspected danger here, then they may be able successfully to distinguish the prior cases

4 and Sheriff Hennessey might be able to escape liability. The question for the court, then, is whether

5 defendants have introduced any evidence to show that San Francisco, unlike other communities, is

6 a place where minor offenders do pose a threat to the jail.

7

Defendants have provided no evidence that would allow the court to answer this question in

8 the affirmative. There is no evidence that the San Francisco jail faced a situation any different from

9 any other jail. Minor offenders do not pose a threat to the jail here, just as they do not pose a threat

10 to jail security in other cities and towns.

11

In considering the question of qualified immunity, the Ninth Circuit has required a defendant

12 to show that there is some salient fact that justifies the defendants’ failure to apply clearly

13 established law to the situation at hand. The situation need not be identical, for the obvious reason

14 that this would mean that the very notion of “clearly established” law would disappear in a welter

15 of case-specific circumstances. In San Jose Charter of Hells Angels Motorcycle Club v. City of San

16 Jose, 402 F.3d 962, 974-975 (9th Cir. 2005), the court stated, “[Defendant] is not entitled to qualified

17 immunity ‘simply because there [is] no case on all fours prohibiting [this] particular manifestation

18 of unconstitutional conduct.’ There need not be prior authority dealing with this precise factual

19 situation in order to deny [defendant] qualified immunity for his actions.” (See, e.g., Hope v. Pelzer,

20 536 U.S. 730, 739 (2002).)

21

In the present case, defendants have failed to show that the San Francisco jail faced any risk

22 from minor offender arrestees – including those charged with offenses that do not necessarily involve

23 violence. Therefore, the Ninth Circuit’s ruling that it is unlawful to conduct strip searches of

24 arrestees before arraignment under blanket policies is fully applicable. Therefore, the Sheriff can

25 be held responsible for failing to conform his policies to this clearly established law.

26 \\\

27 \\\

28 \\\

PLTS’ OPPOSITION TO DEF SHERIFF HENNESSEY’S MOTION FOR PARTIAL SUMMARY JUDGMENT RE: QUALIFIED IMMUNITY

MARY BULL, et al. v. CITY AND COUNTY OF SAN FRANCISCO, et al.

USDC, Northern District, Case No. C 03-1840 CRB

3

Case 3:03-cv-01840 Document 214-1 Filed 08/12/2005 Page 8 of 22

1

ARGUMENT

2 I. INTRODUCTION

3

On April 4, 2005, in San Jose Charter of Hells Angels Motorcycle Club v. City of San Jose

4 402 F.3d 962 (9th Cir. 2005), the Ninth Circuit reiterated a court’s inquiry in deciding whether an

5 official is entitled to qualified immunity:

6

The Supreme Court has set forth a two-pronged inquiry to resolve all

qualified immunity claims. First, "taken in the light most favorable to

7

the party asserting the injury, do the facts alleged show the officers'

conduct violated a constitutional right?" Saucier, 533 U.S. at 201.

8

Second, if so, was that right clearly established? Id. "The relevant,

dispositive inquiry in determining whether a right is clearly

9

established is whether it would be clear to a reasonable officer that his

conduct was unlawful in the situation he confronted." Id. at 202. This

10

inquiry is wholly objective and is undertaken in light of the specific

factual circumstances of the case.

11

12 (402 F.3d at 971, quoting Saucier v. Katz, 533 U.S. 194, at 201, 202 (2001).) Accordingly, plaintiffs

13 will set forth their argument in accordance with the parameters of this two pronged inquiry.

14 II. 15

DEFENDANTS VIOLATED THE FOURTH AMENDMENT BY IMPLEMENTING BLANKET POLICIES FOR THE STRIP SEARCHING OF MINOR OFFENSE ARRESTEES BROUGHT TO THE JAIL BEFORE ARRAIGNMENT

16

A. Temporary Detainees – Those Arrested for Minor Offenses and Held at the Jail

until Arraignment – Are Protected from Strip Searches under the Fourth

17

Amendment

18

Courts addressing the constitutionality of strip searches begin their analyses with Bell v.

19 Wolfish (1979) 441 U.S. 520. The Supreme Court considered the constitutionality of a strip search

20 policy applied to pretrial detainees at the Metropolitan Correctional Center (MCC), a short term

21 federally operated custodial facility in New York City. Plaintiff challenged the strip-searching of 22 detainees following their contact visits with persons from outside the facility. (441 U.S. at 537.)

23

The Court tested the constitutionality of the strip searches against the Fourth Amendment

24 proscription of unreasonable searches. While the practice of strip searching “instinctively [gave the

25 Court] the most pause,” (441 U.S. at 558), the Court “[b]alanc[ed] the significant and legitimate

26 security interests of the institution against the privacy interests of the inmates, the Court concluded 27 that the “visual body-cavity inspections as contemplated by the MCC rules” may be conducted 28 absent probable cause. (441 U.S. at 560.)

PLTS’ OPPOSITION TO DEF SHERIFF HENNESSEY’S MOTION FOR PARTIAL SUMMARY JUDGMENT RE: QUALIFIED IMMUNITY

MARY BULL, et al. v. CITY AND COUNTY OF SAN FRANCISCO, et al.

USDC, Northern District, Case No. C 03-1840 CRB

4

Case 3:03-cv-01840 Document 214-1 Filed 08/12/2005 Page 9 of 22

1

In 1984, the Ninth Circuit decided Giles v. Ackerman, 746 F.2d 614 (9th Cir. 1984). Plaintiff

2 had been strip searched at a local Idaho jail following her arrest for a traffic violation. The parties

3 “[did] not dispute the nature of the intrusion. They agree that Giles' privacy was invaded in a

4 frightening and humiliating manner.” (746 F.2d at 617.) Unequivocally holding that strip searches

5 of arrestees for minor offenses must be predicated on reasonable suspicion that the arrestee is

6 carrying contraband, the Court stated:

7

We hold that arrestees for minor offenses may be subjected to a strip

search only if jail officials have a reasonable suspicion that the

8

particular arrestee is carrying or concealing contraband or suffering

from a communicable disease. Because no such suspicion existed in

9

Giles's case, the officer who searched Giles violated her rights under

the fourth amendment. . . .

10 We conclude, however, that strip searching of every arrestee booked

11

into the Bonneville County Jail is not necessary to protect the

institution's security interest. Balancing that interest against the

12

privacy interests of arrestees, we hold that arrestees charged with

minor offenses may be subjected to a strip search only if jail officials

13

possess a reasonable suspicion that the individual arrestee is carrying

or concealing contraband. Reasonable suspicion may be based on

14

such factors as the nature of the offense, the arrestee's appearance and

conduct, and the prior arrest record. (Emphasis added.)

15

16 (746 F.2d at 615, 617.) Rejecting the argument that those arrested for such offenses likely would

17 be carrying contraband, the court noted, “[A]rrest and confinement in the Bonneville County Jail are

18 unplanned events, so the policy could not possibly deter arrestees from carrying contraband.” (746

19 F.2d at 617.)

20

Giles followed the Fourth Circuit decision in Logan v. Shealy, 660 F.2d 1007, 1013 (4th Cir.

21 1981) which held that a strip search which required county jail personnel to strip search an individual

22 arrested for drunk driving ” ‘conclusively’ ” violated the Fourth Amendment and “ ‘bore no such

23 discernible relationship to security needs at the Detention Center that, when balanced against the

24 ultimate invasion of personal rights involved, it could reasonably be thought justified.’ ” (Giles, 746

25 F.2d at 618.)

26

Most relevant to the Sheriff’s qualified immunity plea, Giles explained that the placing of

27 “temporary detainees” in the general population did not justify the County’s policy. (746 F.2d at

28 619.) As plaintiffs have pointed out in the reply filed in support of their motion for partial summary

PLTS’ OPPOSITION TO DEF SHERIFF HENNESSEY’S MOTION FOR PARTIAL SUMMARY JUDGMENT RE: QUALIFIED IMMUNITY

MARY BULL, et al. v. CITY AND COUNTY OF SAN FRANCISCO, et al.

USDC, Northern District, Case No. C 03-1840 CRB

5

Case 3:03-cv-01840 Document 214-1 Filed 08/12/2005 Page 10 of 22

1 judgment, “temporary detainees” are those who are ‘arrested and held overnight or for another short

2 period before appearing before a judicial officer and those waiting to be released while a bond is

3 posted, a relative comes, or the like.” (See, Reply Memorandum, pp.8-11; Smith v. Montgomery,

4 547 F.Supp.592, 593 (D.Md.1982), cited with approval by Giles, 746 F.2d at 617.) In other words,

5 the term “temporary detainees” refers to the arrestees who are in the class before the court in the

6 present case: arrestees who are held in the jail prior to arraignment.

7

The Ninth Circuit revisited the issue in Ward v. San Diego County, 791 F.2d 1329 (9th Cir.

8 1986). Following plaintiff’s 1981 arrest for the misdemeanor offense of “failing to appear,” plaintiff

9 was stripped and searched prior to a determination of whether she was eligible for an own

10 recognizance release. Rejecting the sheriff’s claim of qualified immunity, the Ninth Circuit

11 concluded “that the law was sufficiently clear in early 1981 so as to expose a public official who

12 unreasonably authorized blanket strip searches of minor offense arrestees to civil liability under 42

13 U.S.C. § 1983.” (791 F.2d at 1332.) The court relied on cases which held that the strip search of

14 an individual arrested on a misdemeanor traffic violation who was unable to post bond violated the

15 constitution where no reasonable suspicion existed the arrestee would possess a weapon or

16 contraband. (Ward, 791 F.2d at 1333.)

17

In Act Up!/Portland v. Bagley, 988 F.2d 868, 871-872 (9th Cir. 1992), as noted above, the

18 Ninth Circuit recognized that by 1989 “it was clearly established in this circuit that it is unlawful to

19 strip search an arrestee brought to a jail facility on charges of committing a minor offense, unless the

20 officer directing the search possesses ‘a reasonable suspicion that the individual arrestee is carrying

21 or concealing contraband.’ ”

22

Thompson v. City of Los Angeles, 885 F.2d 1439 (9th Cir. 1989) held that strip searches may

23 be constitutional where the crime for which the detainee has been arrested -- in Thompson, grand

24 theft auto -- provides the individualized reasonable suspicion necessary to justify the search. The

25 court, however, citing numerous decisions from sister circuits, reiterated that:

26

[T]his court and several other courts have invalidated blanket visual

strip search policies as applied to arrestees detained for minor traffic

27

offenses and other misdemeanors not normally associated with

weapons or other contraband. [Citations omitted] Courts invalidating

28

strip search policies as applied to traffic and other non-violent

PLTS’ OPPOSITION TO DEF SHERIFF HENNESSEY’S MOTION FOR PARTIAL SUMMARY JUDGMENT RE: QUALIFIED IMMUNITY

MARY BULL, et al. v. CITY AND COUNTY OF SAN FRANCISCO, et al.

USDC, Northern District, Case No. C 03-1840 CRB

6

Case 3:03-cv-01840 Document 214-1 Filed 08/12/2005 Page 11 of 22

1

offenders have generally held that in order to strip search such

arrestees, the arresting officers must have reasonable individualized

2

suspicion that an arrestee is carrying or concealing contraband.

[Citations omitted] Individualized suspicion sufficient to warrant a

3

strip search of such detainees may be based on such factors as "the

nature of the offense, the arrestee's appearance and conduct, and the

4

prior arrest record." [Citations omitted.] (Emphasis added.)

5 (885 F.2d at 1446.)

6

In language speaking directly to Sheriff Hennessey’s motion, the court reiterated that the

7 placing of a newly arrested detainee “into contact with the general jail population . . . by itself cannot

8 justify a strip search,” 885 F.2d at 1447, citing Giles (746 F.2d at 618) and Masters v. Crouch, 872

9 F.2d 1248, 1253, 1254-1255 (6th Cir. 1990), where the court stated "the fact of intermingling alone

10 has never been found to justify [a strip search of a minor offense arrestee] without consideration

11 of the nature of the offense and the question of whether there is any reasonable basis for concern

12 that the particular detainee will attempt to introduce weapons or other contraband into the

13 institution". (885 F.2d at 1447 (emphasis added).)

14

Within a month after deciding Thompson, the Ninth Circuit delivered its opinion in Kennedy

15 v. Los Angeles Police Department, 901 F.2d 702 (9th Cir. 1989), which held that classification of an

16 offense as a felony, standing alone, did not justify a strip-search. A dispute between roommates had

17 led to the arrest of one roommate for felony grand theft after her roommate accused her of stealing

18 a television and other property which the officers values at more than $400.00, the threshold for

19 grand theft. Following her arrest, Kennedy was a forced to submit to a body cavity search. (901

20 F.2d at 704.)

21

The Court placed a heavy burden on those defending blanket strip searches of all incoming

22 suspected felons, emphasizing, at the outset, that “The intrusiveness of a body-cavity search cannot

23 be overstated. Strip searches involving the visual exploration of body cavities is dehumanizing and

24 humiliating.” (901 F.2d at 711.) The LAPD subjected all felony arrestees to a body-cavity search

25 as a matter of course, whereas only those misdemeanor arrestees charged with offenses relating to 26 narcotics or suspected of concealing contraband or weapons were forced to undergo such a search. 27 (901 F.2d at 713.) 28 \\\

PLTS’ OPPOSITION TO DEF SHERIFF HENNESSEY’S MOTION FOR PARTIAL SUMMARY JUDGMENT RE: QUALIFIED IMMUNITY

MARY BULL, et al. v. CITY AND COUNTY OF SAN FRANCISCO, et al.

USDC, Northern District, Case No. C 03-1840 CRB

7

Case 3:03-cv-01840 Document 214-1 Filed 08/12/2005 Page 12 of 22

1

The Ninth Circuit observed that “The enacted policy, if it is to be constitutional, must be

2 "reasonably related" to the penal institution's interest in maintaining security. A ham-handed

3 approach to policy making runs the serious risk of infringing upon detainees' constitutional rights.

4 (901 F.2d at 713 (Citations omitted).)

5

The court held that the Department’s policy was unsupported by any “serious justification.”

6 (901 F.2d at 716.) It held that while the nature of an offense may be a factor in determining the

7 existence of that reasonable suspicion sufficient to justify a strip search, the classification of

8 particular conduct as a felony rather than a misdemeanor did not, standing alone, justify a strip

9 search. (901 F.2d 716.)

10

The Ninth Circuit applied the foregoing precedents in Fuller v. M.G. Jewelry, 950 F.2d 1437

11 (9th Cir. 1991). Plaintiffs were arrested on suspicion of taking a ring valued at $800 from a jewelry

12 store. (950 F.2d at 1439-1440.) Officers conducted a field pat-down search of plaintiffs and

13 searched plaintiffs’ purses, but found nothing. Plaintiffs were arrested on suspicion of grand theft

14 and, while detained, were subjected to two strip and visual body and cavity searches, one at the

15 central station and a second at the women’s jail; neither search uncovered any crime. (950 F.2d at

16 1439, 1440.)

17

The court reiterated that classification of the alleged crime as a felony “is of no

18 consequence.” (950 F.2d at 1446.) The court restated the rationale for its decisions in Giles and

19 Kennedy:

20

The clearly-stated rationale underlying those decisions, which allow

body cavity searches of prisoners and detainees on less than probable

21

cause, is to protect prisons and jails from smuggled weapons, drugs

or other contraband which pose a threat to the safety and security of

22

penal institutions.

23

These decisions suggest that strip and body cavity searches of

detainees may be conducted based on reasonable suspicion only

24

where such searches are necessary to protect the overriding security

needs of the institution--that is, where officials have a reasonable

25

suspicion that a particular detainee harbors weapons or dangerous

contraband.

26

27 (950 F.2d at 1447.)

28 \\\

PLTS’ OPPOSITION TO DEF SHERIFF HENNESSEY’S MOTION FOR PARTIAL SUMMARY JUDGMENT RE: QUALIFIED IMMUNITY

MARY BULL, et al. v. CITY AND COUNTY OF SAN FRANCISCO, et al.

USDC, Northern District, Case No. C 03-1840 CRB

8

Case 3:03-cv-01840 Document 214-1 Filed 08/12/2005 Page 13 of 22

1

The Ninth Circuit reaffirmed its precedents in Arpin v. Santa Clara Valley Transportation

2 Agency, 261 F.3d 912, 922 (9th Cir. 2001) (“[S]trip searches of persons arrested for minor offenses

3 are prohibited by the Fourth Amendment, unless reasonable suspicion exists that the arrestee is

4 carrying or concealing contraband or suffering from a communicable disease.”) District courts in

5 this circuit have followed the foregoing precedents. (See, e.g., Adnan v. Santa Clara County Dept.

6 of Corrections (2002 WL 32058464, (N.D.Cal. 2002) [Even if the searches are visual rather than

7 physical, the degree of intrusion is significant and does not appear to be justified by a legitimate

8 penological interest. Therefore, Plaintiff asserts a cognizable claim that the strip searches violated

9 his Fourth Amendment rights.].)

10

B. Sheriff Hennessey Has Made No Showing That the Jail’s Policy of Strip

Searching Minor Offense Arrestees Is Justified by Security Concerns

11

12

Sheriff Hennessey states that he authorized the former strip-search policy to combat a major

13 safety problem arising from the smuggling of drugs and weapons into the jails. He relies primarily

14 on a declaration by Undersheriff Jan Dempsey which lists contraband found in jail cells from April

15 2000-December 2003 and on exhibits attached to the Declaration of Captain Ellen Brin. As

16 Plaintiffs have already pointed out in the reply filed in support of their own motion for partial

17 summary judgment, this “evidence” does not support the policies Plaintiffs challenge here.

18

The contraband Undersheriff Jan Dempsey lists in her declaration was uncovered during

19 searches in cells. No evidence exists that these cells housed individuals following their arrest for

20 offenses not involving weapons, drugs or violence; indeed, this contraband was discovered during

21 the period that defendants strip searched all arrestees who were placed in the “general population”

22 (which was itself segregated through the “classification” process on the basis of age, criminal

23 sophistication, prior record and the like). The Dempsey material makes no claim that deputies

24 discovered the catalogued contraband during strip searches of class members -- detainees arrested

25 for offenses not involving drugs, weapons or violence. The Brin declaration, to which Plaintiffs have

26 objected, provides no relevant information. Captain Brin fails to offer evidence that the contraband 27 she lists was uncovered during strip-searches of detainees arrested for offenses not involving drugs, 28 \\\

PLTS’ OPPOSITION TO DEF SHERIFF HENNESSEY’S MOTION FOR PARTIAL SUMMARY JUDGMENT RE: QUALIFIED IMMUNITY

MARY BULL, et al. v. CITY AND COUNTY OF SAN FRANCISCO, et al.

USDC, Northern District, Case No. C 03-1840 CRB

9

Case 3:03-cv-01840 Document 214-1 Filed 08/12/2005 Page 14 of 22

1 weapons or violence. Indeed, the exhibits do not list the charges for which the individuals were

2 arrested.

3

Sheriff Hennessey’s own testimony provides the coup de grace to his argument. Plaintiffs’

4 counsel asked the Sheriff at his deposition if the Sheriff believed that “the incorporation into the

5 general population in and of itself is sufficient reason to strip search all persons held prearraignment

6 at the San Francisco Jail.” Sheriff Hennessey answered, “No,” although admitting that such was his

7 policy prior to January 2004. (Deposition of Sheriff Michael Hennessey, at 83:10-19, Ex. 2 to the

8 Declaration of Thom Seaton.)

9

Consistent with that belief, the Sheriff changed his policy in January 2004; no longer would

10 classification for housing be an independent basis for strip-searching pre-arraignment detainees

11 arrested for offenses not involving weapons, drugs or violence. Undersheriff Dempsey explains that

12 “The new ‘Searches’ policy is intended to better address the balance between institutional safety and

13 current legal developments.” (Dempsey Declaration, ¶ 8.) She fails to state, however, to what new

14 legal developments she refers. The law has been stable on the question of strip-searching minor

15 offenders for twenty years or more. If the policies were changed because arrestees were finally taking

16 the Sheriff to court to enforce their rights, this circumstance can hardly be cited in support of

17 qualified immunity: rather, the change is an admission that the law was clearly established and the

18 unlawful practices were indefensible and unnecessary as a security matter. (See, Federal Rule of

19 Evidence 407; Eng v. Skully, 146 F.R.D. 74 (S.D.N.Y.1993) [Evidence of policy changes is

20 admissible to prove feasibility of alternative measures or for impeachment purposes].)

21

C. All “Temporary Detainees” Brought to the Jail on Minor Offenses Are

Protected Against Strip Search, Even If They Are Moved out of the Booking

22

Area into the Housing Area of the Jail

23

In Giles and Thompson, the Ninth Circuit made clear that a policy of strip-searching minor

24 offense arrestees before arraignment was not justified simply because some of these detainees were 25 placed in housing with the general jail population. Thompson’s language should have been quite

26 clear to Sheriff Hennessey:

27

Although Thompson, like the arrestees in Dobrowolskyj and Dufrin,

was placed into contact with the general jail population, such a factor

28

by itself cannot justify a strip search. See Giles, 746 F.2d at 618 (fact

PLTS’ OPPOSITION TO DEF SHERIFF HENNESSEY’S MOTION FOR PARTIAL SUMMARY JUDGMENT RE: QUALIFIED IMMUNITY

MARY BULL, et al. v. CITY AND COUNTY OF SAN FRANCISCO, et al.

USDC, Northern District, Case No. C 03-1840 CRB

10

Case 3:03-cv-01840 Document 214-1 Filed 08/12/2005 Page 15 of 22

1

that arrestee may ultimately be intermingled with general jail

population does not, by itself, justify strip search as such

2

intermingling is "both limited and avoidable"); Masters, 872 F.2d at

1254-55 ("the fact of intermingling alone has never been found to

3

justify [a strip search] without consideration of the nature of the

offense and the question of whether there is any reasonable basis for

4

concern that the particular detainee will attempt to introduce weapons

or other contraband into the institution").

5

6 (885 F.2d 1439, 1447.) District courts in the Ninth Circuit recognized that this was controlling

7 circuit precedent. (Wong v. Beebe, 2002 WL 31548486 (D. Or. 2002), (rev’d. on other grounds 8 Wong v. U.S., 373 F.3d 952, 957 (9th Cir. 2004) [“[W]ell before Wong's strip and cavity search [in

9 1999], it was clear that blanket strip search policies are unconstitutional if justified by nothing more

10 than an arrest on suspicion of the commission of a felony or a planned confinement in the general

11 jail population”]; Silvia v. Clackamas County 2001 WL 34039482, (D. Or. 2001) [Court found

12 county’s policy of strip-searching all arrestees housed in general jail population unconstitutional:

13 “Well before Silvia's strip and cavity search, it was clear that blanket strip search policies justified

14 by nothing more than arrest on suspicion of the commission of a felony or a planned confinement

15 in the general jail population are unconstitutional,” citing Fuller, supra, Kennedy v. Los Angeles

16 Police Department, supra, and Thompson, supra].)

17

D. Temporary Detainees Placed in “Safety” Cells (Solitary Confinement) Are

Protected from Strip Searches by the Fourth Amendment

18

19

Sheriff Hennessey seeks an exception from the Fourth Amendment which would allow the

20 strip searching of all those placed in safetycells prior to arraignment.3 However, placement in safety

21 cells under the Sheriff’s prior policy was not tied to a perception that the detainee possessed

22 contraband such as weapons or drugs. The criteria for such placement were indefinable -- for

23 example, placement could be made without medical authorization if a supervisor deemed that the

24 arrestee displayed “bizarre behavior” or seemed “gravely disabled”. Some of the criteria were

25

26

27

3 Plaintiffs’ papers supporting their motion for partial summ ary jud gment add ress the unconstitutionality of this overbroad blanket policy. See, Plaintiffs Memorandum O f Points And Authorities In Support Of Partial Summary

Judgment, at pp. 17-19; Plaintiffs’ Reply To D efendants’ Opposition To Plaintiffs’ Motion For Partial Summary
28 Judgment, pp. 14-16.

PLTS’ OPPOSITION TO DEF SHERIFF HENNESSEY’S MOTION FOR PARTIAL SUMMARY JUDGMENT RE: QUALIFIED IMMUNITY

MARY BULL, et al. v. CITY AND COUNTY OF SAN FRANCISCO, et al.

USDC, Northern District, Case No. C 03-1840 CRB

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Case 3:03-cv-01840 Document 214-1 Filed 08/12/2005 Page 16 of 22

1 manifestly unrelated to the danger of smuggling – for example, arrestees could be placed in safety

2 cells at their own request. Some of the criteria were catchalls for a broad range of behavior – for

3 example, “danger to self/others” – a criteria so broad that the underlying behavior might or might

4 not be related to security of the person or the jail. In the case of Miki Mangosing, for example, an

5 arrestee brought in for “drunk in public” was classified as appropriate for safety cell placement

6 because she was so drunk she was “out of control”. (See, plaintiff’s reply in support of their motion

7 for summary judgment, ¶ 14.) Arrestees were placed in these cells naked.

8

These policies were unconstitutional because they did not require a scintilla of suspicion that

9 the arrestee, as an individual, posed a risk of smuggling contraband in a body cavity. By 1989, “it

10 was clearly established in this circuit that it is unlawful to strip search an arrestee brought to a jail

11 facility on charges of committing a minor offense, unless the officer directing the search possesses

12 ‘a reasonable suspicion that the individual arrestee is carrying or concealing contraband.’ ” (Act 13 Up!/Portland v. Bagley, 988 F.2d 868, 871-872 (9th Cir. 1992) [emphasis added]. See, e.g., Fuller

14 v. M.G. Jewelry, supra, 950 F.2d at 1437, 1447 (“[S]trip and body cavity searches of detainees may

15 be conducted based on reasonable suspicion only where such searches are necessary to protect the

16 overriding security needs of the institution--that is, where officials have a reasonable suspicion that

17 a particular detainee harbors weapons or dangerous contraband.”[emphasis added]).) The Sheriff

18 does not argue that a reasonable suspicion existed that all individuals placed in safety cells posed a

19 risk of smuggling contraband, regardless of the arrest, the charge, the history and mental status.

20 Therefore he has failed to show the strip search on a blanket basis of all safety cell placements can

21 be justified under the Bell v. Wolfish balancing test and the Ninth Circuit cases that charge jails to

22 limit the strip search of minor offense arrestees to those instances where there is some security basis

23 of the search.

24

E. Arrestees Brought to the Jail on Offenses Which Do Not Require Violent

Conduct as an Element of the Offense or as the Basis of the Arrest Are

25

Protected by the Fourth Amendment from Strip Searches Without

Individualized Suspicion

26

27

Sheriff Hennessey contends that because Zern was arrested for resisting arrest causing serious

28 bodily injury to a police officer and Corneau was arrested for battery of a spouse or someone in a

PLTS’ OPPOSITION TO DEF SHERIFF HENNESSEY’S MOTION FOR PARTIAL SUMMARY JUDGMENT RE: QUALIFIED IMMUNITY

MARY BULL, et al. v. CITY AND COUNTY OF SAN FRANCISCO, et al.

USDC, Northern District, Case No. C 03-1840 CRB

12

Case 3:03-cv-01840 Document 214-1 Filed 08/12/2005 Page 17 of 22

1 dating relationship, charges which do not necessarily involve violence, their Fourth Amendment

2 rights were not violated.4 Yet the Ninth Circuit has limited the strip search of arrestees brought to

3 the jail to those who have been arrested for charges which involve violence – and has cited cases

4 which observe that the security justification for such searches is that these offenses “posed the very

5 threat of violence by weapons…that… must [be curtailed] in prisons…” (Fuller v. MG. Jewelry,

6 supra, 950 F.2d at 1447.) In this circuit, there is a clear limitation on blanket searches of arrestees

7 charged with offenses which may not involve violence and a clear requirement for a security

8 justification for any blanket search at the stage before arraignment. The Sheriff has failed to show

9 any security justification for such blanket searches that would differentiate this case from the clear

10 limitations imposed by the Ninth Circuit.

11 III. IT SHOULD HAVE BEEN CLEAR TO SHERIFF HENNESSEY THAT THE

CHALLENGED POLICIES WERE UNLAWFUL AND THEREFORE HE IS NOT

12

ENTITLED TO IMMUNITY FROM LIABILITY

13

A. Sheriff Hennessey Should Have Known, and in Fact, Did Know, That the Jail’s

Policies of Strip Searching Minor Offense Arrestees Before Arraignment,

14

Simply Because They Were “Classified’ for Jail Housing, Was Unlawful

15

Sheriff Hennessey seeks to avoid the effect of language in Giles v. Ackerman, supra, that

16 explained that the placing of temporary detainees in the general population did not justify the 17 County’s policy.5 Giles noted " ‘[d]efendants' heavy reliance on the intermingling of its temporary

18 detainees with the general [jail] population is misplaced’ because such intermingling is both limited

19 and avoidable.” (746 F.2d at 619.) Sheriff Hennessey takes great pains to note that Giles addressed

20 the policy of the small Bonneville County Jail and not an urban facility --rife with smuggling --

21 which the Sheriff administers.

22

23

4 Plaintiffs’ papers supporting their motion for partial summary judgment address the constitutionality of the

strip-searches of these Plaintiffs. See, Plaintiffs Memorand um Of Po ints And Authorities In Support Of Partial Summary

24 Judgment, at pp. 19-23; Plaintiffs’ Reply To Defendants’ Opp osition To Plaintiffs’ Motion For Partial Summary

Judgment, pp. 12-13.
25
5 The Sheriff protests Plaintiffs’ use of the term, “blanket strip-search policy.” This term simply refers to the

26 uniform and indiscriminate strip searches of classes of people. Plaintiffs do not contend that deputies catego rically strip

searched other arrestees, including those arrested for drunkenness and those cited and released. Also, some, but not all,
27 inmates able to post bail avoided strip search; this depended on whether they were coerced to sign consent forms (in

which case they were strip searched upon booking) and the amount o f time the ja il, in its sole discretion, held them in
28 the bo oking area (they might be ab le to po st bail be fore being moved out into housing).

PLTS’ OPPOSITION TO DEF SHERIFF HENNESSEY’S MOTION FOR PARTIAL SUMMARY JUDGMENT RE: QUALIFIED IMMUNITY

MARY BULL, et al. v. CITY AND COUNTY OF SAN FRANCISCO, et al.

USDC, Northern District, Case No. C 03-1840 CRB

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Case 3:03-cv-01840 Document 214-1 Filed 08/12/2005 Page 18 of 22

1

As noted above, and as the Ninth Circuit repeatedly has recognized, however, a defendant

2 “ ‘is not entitled to qualified immunity "simply because there [is] no case on all fours prohibiting

3 [this] particular manifestation of unconstitutional conduct.’ " There need not be prior authority

4 dealing with this precise factual situation in order to deny [defendant] qualified immunity for his

5 actions. (San Jose Charter of Hells Angels Motorcycle Club v. City of San Jose, supra, 402 F.3d at

6 974-975; quoting Headwaters Forest Def. v. County of Humboldt, 276 F.3d 1125, 1131 (9th Cir.

7 2002), 9th Cir, 2002) and Deorle v. Rutherford, 272 F.3d 1272, 1274-75 (9th Cir.2001). See, also

8 Hope v. Pelzer, 536 U.S. 730, 739 (2002); Kennedy v. City of Ridgefield (9th Cir. 2005) 411 F.3d

9 1134, 1144 (“Thus, the alleged conduct need not explicitly have been previously deemed

10 unconstitutional, but existing case law must make it clear that the conduct violated constitutional

11 norms.”); see, e.g., Sissoko v. Rocha 412 F.3d 1021, 1041 (9th Cir. 2005) (“[f]or a constitutional right

12 to be clearly established, its contours ‘must be sufficiently clear that a reasonable official would

13 understand that what he is doing violates that right. This is not to say that an official action is

14 protected by qualified immunity unless the very action in question has previously been held

15 unlawful; but it is to say that in the light of preexisting law the unlawfulness must be apparent.’”); 16 Kennedy v. City of Ridgefield, 411 F.3d 1134, 1144 (9th Cir. 2005) (“Thus, the alleged conduct need

17 not explicitly have been previously deemed unconstitutional, but existing case law must make it clear

18 that the conduct violated constitutional norms.”); Moreno v. Baca (2005) 400 F.3d 1152, 1167 (“It

19 is not necessary that the alleged acts have been previously held unconstitutional, as long as the

20 unlawfulness [of defendants' actions] was apparent in light of preexisting law. Closely analogous

21 preexisting case law is not required to show that a right was clearly established.”); Motley v. Parks, 22 383 F.3d 1058, 1062-1063 (9th Cir. 2004) (“Although the inquiry into what is ‘clearly established’

23 must be decided with reference to the specific situation the officers confronted, ‘officials can still

24 be on notice that their conduct violates established law even in novel factual circumstances.’”);

25 Flores v. Morgan Hill Unified School Dist., 324 F.3d 1130, 1136-37 (9th Cir.2003) ("In order to find

26 that the law was clearly established ... we need not find a prior case with identical, or even 'materially 27 similar' facts."); Deorle v. Rutherford 272 F.3d 1272, 1275 (9th Cir. 2001) (Noting that if qualified

28 immunity existed only if the very action in question has previously been held unlawful, “officers

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Case 3:03-cv-01840 Document 214-1 Filed 08/12/2005 Page 19 of 22

1 would escape responsibility for the most egregious forms of conduct simply because there was no

2 case on all fours prohibiting that particular manifestation of unconstitutional conduct.”).)

3

Moreover, Giles was followed by Thompson v. City of Los Angeles, 885 F.2d 1439 (9th Cir.

4 1989) which focused on policies of an urban jail system. Citing Giles, Thompson reiterated that the

5 placing of a newly arrested detainee “into contact with the general jail population . . . by itself cannot

6 justify a strip search.” (885 F.2d at 1447.) Thus, even assuming that Giles was distinguishable to

7 a jail administrator, Thompson provided fair warning that automaticallystrip-searching all detainees

8 placed in housing with the general jail population, regardless of the crimes the detainees committed, 9 violated the Fourth Amendment. 6

10

Among the factors a court considers in determining a defendant’s entitlement to qualified

11 immunity is “information the searching officers possessed.” (Anderson v. Creighton, 483 U.S. 635, 12 641 (1987). See, e.g., Hammond v. Kunard, 148 F.3d 692, 697 (7th Cir. 1998) (Because “Information

13 possessed by an officer may be relevant to the inquiry . . . It is therefore appropriate for the court to

14 look at what the defendants knew at the time of the alleged constitutional deprivation to see if they 15 acted ‘reasonably.’”); Act Up!/Portland v. Bagley, 988 F.2d 868, 873, (9th Cir. 1993) (Facts and

16 circumstances within officer’s knowledge considered); Fuller v. M.G. Jewelry, 950 F.2d 1437, 1443 17 (9th Cir. 1991) (Examine established law and information officer possessed).)

18

Here, the Sheriff’s contention that he believed Fourth Amendment protection extended only

19 to those arrestees who were held in the booking area while awaiting bail is not supported by the jail’s

20 actual practice. There was no special, defined “sanctuary” period during which arrestees were

21 protected from strip search. Captain Arata’s memorandum dated February 23, 2000, states that

22 “Prisoners should be strip searched before the conclusion of the watch.” (Arata Memorandum, Ex.

23 1 to Declaration of Thom Seaton.) If the end of the watch occurred shortly after the arrestee arrived,

24 that person was then subject to a strip search. Indeed, Sheriff Hennessey has failed to identify any

25

26

6 Defendants’ reliance on authority from other circuits, is of no mome nt. See, Rivero v. City and County of San

Francisco, 316 F.3d 857, 865 (9th Cir. 2002) (“The issue is not what the law was or might have been in other circuits

27 in 1993. It is, rather, what the "controlling authority in [the defendants'] jurisdiction [was] at the time of the incident.").

But see, Plaintiffs’ Reply To Defend ants’ O pposition To Plaintiffs’ Motion For Partial Summary Judgment which
28 addresses Defendants’ cited authorities at some length at pp. 10-12, n.4; see also,

PLTS’ OPPOSITION TO DEF SHERIFF HENNESSEY’S MOTION FOR PARTIAL SUMMARY JUDGMENT RE: QUALIFIED IMMUNITY

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Case 3:03-cv-01840 Document 214-1 Filed 08/12/2005 Page 20 of 22

1 written policy whatever protecting those able to post bail from a strip search. Even Dyer’s

2 deposition testimony cited in the Sheriff’s papers states that the time permitted to obtain bail

3 depended upon the amount of activity in the intake facility. (Dyer Depo, 25:23-26:2.) Thus,

4 avoiding strip-searches was happenstance, a matter of jail convenience and the need to relieve

5 congestion, rather than a result of a recognized, legally protected status.

6

Finally, here Sheriff Hennessey admitted in his deposition that he knew that incorporation

7 of detainees into the general population in and of itself was not a sufficient reason to strip search all

8 persons held pre-arraignment at the jail. An official who admits that the challenged policy is

9 unlawful and unnecessary cannot have made the type of “reasonable mistake” that qualified

10 immunity protects. (See, Parkes v. County of San Diego 345 F. Supp.2d 1071,1088 (S.D. CA 2004)

11 [where social worker did not believe mother presented threat to children but nevertheless authorized

12 taking of the children from the mother, qualified immunity denied].)

13

B. Sheriff Hennessey Should Have Known the Jail’s Policy for Strip Searching All

Safety Cell Placements Was Unlawful

14

15

The Sheriff asserts that because the Ninth Circuit did not specifically condemn the strip-

16 searching of all detainees placed in safety cells prior to arraignment, Ninth Circuit precedent failed

17 to provide fair warning that his safety cell strip-search policy might result in his liability. Plaintiffs

18 already have noted, per Hope v. Pelzer 536 U.S. 730, 739 (2002), that the Supreme Court has

19 rejected the view that “the facts of previous cases be 'materially similar' to the case at hand, or that

20 “an official action is protected by qualified immunity unless the very action in question has

21 previously been held unlawful.” (See, e.g., San Jose Charter of Hells Angels Motorcycle Club v.

22 City of San Jose, supra, 402 F.3d at 974-975.)

23

The Ninth Circuit had provided Sheriff Hennessey with notice that it considered strip-

24 searches “dehumanizing and humiliating” (Kennedy v. Los Angeles Police Department, supra, 901 25 F.2d at 711), and that such searches only could proceed on the basis of individualized reasonable

26 suspicion that those searched would yield contraband. While in some instances the blanket strip 27 search of a class of detainees before arraignment, such as those arrested for crimes involving 28 weapons, drugs or violence, may be sanctioned (no case has yet tested the limits of this proposition),

PLTS’ OPPOSITION TO DEF SHERIFF HENNESSEY’S MOTION FOR PARTIAL SUMMARY JUDGMENT RE: QUALIFIED IMMUNITY

MARY BULL, et al. v. CITY AND COUNTY OF SAN FRANCISCO, et al.

USDC, Northern District, Case No. C 03-1840 CRB

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Case 3:03-cv-01840 Document 214-1 Filed 08/12/2005 Page 21 of 22

1 the law has been well-established for years that strip-searches of categories of minor offense

2 arrestees must have a discernible relation to the risk that the class of arrestees will smuggle

3 contraband.

4

The Sheriff, therefore, should reasonably have known that blanket strip searches of safety-cell

5 placements before arraignment would leave him vulnerable to suit absent a showing that all of these

6 temporary detainees were reasonably suspected as a class to carry hidden weapons or drugs. Yet

7 Sheriff Hennessey has provided no evidence that he formulated this particular strip-search policy due

8 to evidence that those placed in safety cells were prone to hide weapons or drugs on their persons,

9 or that the blanket strip searches were necessary or even advisable for reasons of jail security. The

10 Sheriff, who should have been well aware that strip-searches of minor offense arrestees must be

11 justified by particularized reasonable suspicion, may not escape liability because he was allegedly

12 waiting for a Ninth Circuit decision condemning strip-searches of this particular category, when he

13 knew that these safety cell placements, who were confined in solitary cells without medical

14 authorization, included the very minor offense arrestees protected from strip search when brought

15 to the jail.

16

C. Sheriff Hennessey Should Have Known That the Ninth Circuit Has Limited the

Strip Search of Arrestees Prior to Arraignment to Those Who Are Charged

17

with Offenses Involving Violence in the Absence of Particularized Reasonable

Suspicion

18

19

It need hardly be re-emphasized that the Ninth Circuit has repeatedly declared that the Fourth

20 Amendment protects arrestees charged with minor offenses from strip searches when brought to the

21 jail, unless there is individualized suspicion, and has defined “minor offenses” as those not involving 22 drugs, weapons or violence. Plaintiffs Corneau and Zern were searched pursuant to a policy broadly

23 defining “violent” crimes. The overbroad policy obviated the need for individualized reasonable

24 suspicion. Ninth Circuit precedent applying Bell v. Wolfish and requiring a security justification for 25 an indiscriminate search of arrestees prior to arraignment – precisely because at this stage the

26 arrestees have not been charged with any crime – was clearly established when Corneau and Zern 27 were brought to the jail. It was also clearly established that individualized suspicion was required 28 to strip search those charged with minor offenses. Sheriff Hennessey should have known that his

PLTS’ OPPOSITION TO DEF SHERIFF HENNESSEY’S MOTION FOR PARTIAL SUMMARY JUDGMENT RE: QUALIFIED IMMUNITY

MARY BULL, et al. v. CITY AND COUNTY OF SAN FRANCISCO, et al.

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Case 3:03-cv-01840 Document 214-1 Filed 08/12/2005 Page 22 of 22

1 policies must be tailored to conform to this precedent, and that he could not implement a blanket

2 policy that directed strip searches on the basis of the charge alone when the charge did not

3 necessarily or reliably indicate the offense involved violence and therefore the arrestee so charged

4 posed a threat of smuggling contraband into the jail.

5

CONCLUSION

6

Clearly established law forbade strip-searching detainees solely because of their classification

7 for housing in the general population or safety cell placement – whether such housing occurred in 8 a rural or urban setting. (Thompson v. City of Los Angeles, 885 F.2d 1439 (9th Cir. 1989).)

9 Moreover, Sheriff Hennessey has conceded that, without more, the placement in the general jail

10 population of detainees not arrested for crimes involving weapons, drugs or violence is not justified.

11 Therefore he is not entitled to qualified immunity with respect to these policies.

12

The Court must also reject his qualified immunity from liability for strip searching arrestees

13 who were brought to the jail with charges that might or might not involve violence. This was an

14 unconstitutionally overbroad “blanket” policy, the defects of which should have been clear to the

15 Sheriff. The Court therefore must reject Sheriff Hennessey’s motion in its entirety.

16 DATED: August 9, 2005

Respectfully submitted,

17

LAW OFFICE OF MARK E. MERIN

CASPER MEADOWS, SCHWARTZ & COOK

18

19

/s/

20

BY: Mark E. Merin

21

Attorneys for Plaintiff

22

23

24

25

26

27

28

PLTS’ OPPOSITION TO DEF SHERIFF HENNESSEY’S MOTION FOR PARTIAL SUMMARY JUDGMENT RE: QUALIFIED IMMUNITY

MARY BULL, et al. v. CITY AND COUNTY OF SAN FRANCISCO, et al.

USDC, Northern District, Case No. C 03-1840 CRB

18

F:\WPWORK\MCNULTY\PLEADING\COMPLAIN.DOC

 
 Case 3:03-cv-01840-CRB Document 220 Filed 09/22/2005 Page 1 of 25

United States District Court
For the Northern District of California

1

2

3

4

5

6

7

8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE NORTHERN DISTRICT OF CALIFORNIA

10

11 MARY BULL, et al.,

12

Plaintiffs,

13 v.

14 CITY & COUNTY OF SAN FRANCISCO,

et al., 15

Defendants.

16

/

No. C 03-01840 CRB
MEMORANDUM AND ORDER RE: MOTIONS FOR SUMMARY JUDGMENT

17 In this class action, plaintiffs challenge the former policy of the City and County of
18 San Francisco (“CCSF”) of performing strip searches on certain classes of pre-arraignment
19 detainees at CCSF’s jails. Now before the Court is a motion by plaintiffs for partial
20 summary judgment regarding several of their strip search claims under federal and state law.
21 After carefully reviewing the memoranda and evidentiary record submitted by the parties,
22 and having had the benefit of a lengthy oral argument, the Court hereby GRANTS IN PART
23 and DENIES IN PART plaintiffs’ motion for summary judgment.
24 Defendant Michael Hennessey has also filed a motion for summary judgment
25 regarding qualified immunity. That motion is GRANTED IN PART AND DENIED IN
26 PART. Finally, defendants renew their earlier motion for summary judgment with respect to
27 plaintiffs Zern and Corneau. That motion is GRANTED.
28

Case 3:03-cv-01840-CRB Document 220 Filed 09/22/2005 Page 2 of 25

United States District Court
For the Northern District of California

1

BACKGROUND

2 I. Factual History

3

The San Francisco Sheriff’s Department (“the Department”) oversees six county jails.

4 After arrest, all arrestees are brought to County Jail 9 where within twenty-four hours of

5 arriving they are booked and a determination is made as to whether the detainee will be

6 released or housed pending arraignment. County Jail 9 is a temporary detention facility and

7 does not contain accommodations for extended stays. Thus, all detainees who are classified

8 for housing are transferred to another one of the CCSF’s jails. According to defendant,

9 approximately 50,000 individuals are booked and processed through this system each year.

10

Under Department policy in effect until January 21 2004,1 all arrestees entering

11 County Jail 9 were subjected to a pat search and screened by a metal detector. The policy 12 also provided for strip searches2 of detainees who fell into several categories, including:

13 arrestees charged with crimes involving narcotics, weapons or violence; arrestees with a

14 criminal history of that type; individuals arrested for a probation violation; individuals

15 arrested outside of San Francisco; arrestees in transit to another jail; arrestees classified for

16 housing in the general jail population; and individuals placed in “safety cells.” Safety cells

17 are single-occupant, padded cells used to house inmates who were considered a danger to

18 themselves or others, to be behaving in a “bizarre” manner or to be “gravely disabled.”

19 Although not provided for in the Department’s written policy, plaintiffs also contend that

20 defendants maintained a practice of performing strip searches on all detainees who signed a

21 form indicating that they consented to such searches.

22

According to defendants, the Department’s strip search policy was applied as follows:

23 upon arrival at County Jail 9 all inmates who were deemed searchable based on their charge

24
1The Department’s new policy, which went into effect in January 2004 and currently 25 remains in effect, is not at issue in these motions.

26

2As noted in the Court’s prior order, the Court recognizes that there is a spectrum of

possible search practices, including strip searches and visual body cavity searches, that fall 27 within the general rubric of “strip searches.” The Court and the parties have used this label to

cover all such practices. As it has before, the Court will adhere to the understanding that the 28 distinctions within this category of searches make no difference in the analysis performed for

the purposes of this motion.

2

Case 3:03-cv-01840-CRB Document 220 Filed 09/22/2005 Page 3 of 25

United States District Court
For the Northern District of California

1 or criminal history were automatically strip searched. Other arrestees were generally not

2 strip searched unless they were identified for placement in a safety cell or, through the

3 booking process, it was determined that the detainee would not be released within twenty-

4 four hours and therefore would need to be housed in another jail facility. For example,

5 individuals who were cited and released, individuals who were temporarily detained because

6 they were intoxicated, and individuals who said they would be able to post bail would be

7 classified for release and therefore not be strip searched. In summary, the Department

8 adopted a policy of strip searching all individuals who were classified for housing in the

9 general jail population.

10

Strip searches at County Jail 9 have led to the discovery of weapons and other

11 contraband on the persons of arrestees. Defendant produced evidence that from April 2000

12 through April 2005 strip searches at County Jail 9 resulted in the discovery of 73 cases of

13 illegal drugs or drug paraphernalia hidden in body cavities. In that same time period, six

14 weapons were also discovered as a result of strip searches. In addition, safety cell searches 15 resulted in the discovery of weapons on three other detainees.3

16 II. Procedural History

17

Plaintiffs filed this action on April 23, 2003 alleging causes of action based on the

18 Fourth and Fourteenth Amendments to the United States Constitution, 42 U.S.C. section

19 1983, and several provisions of state law. In an order issued June 10, 2004, this Court

20 granted plaintiffs’ motion to certify a class under Rule 23(b)(3). The class was defined as:

21

All persons who, during the applicable period of limitations, and

continuing to date, were arrested on any charge not involving

22

weapons, controlled substances, or a charge of violence, and not

involving a violation of parole or a violation of probation (where

23

consent to search is a condition of such probation), and who were

subjected to a blanket visual body cavity strip search by

24

defendants before arraignment at a San Francisco County jail

facility without any individualized reasonable suspicion that they

25

26

3Notably, defendants provided contraband reports for a period that includes searches

conducted under both the prior policy and the newer policy. If these reports are divided into the 27 two policy periods, the result is that 49 instances of drug-related contraband were discovered

during the old regime and 14 instances were discovered after the change. As for weapons, three 28 were found in non-safety cell searches prior to enactment of the new policy and three were found

afterwards. All safety cell discoveries were made prior to the policy change.

3

Case 3:03-cv-01840-CRB Document 220 Filed 09/22/2005 Page 4 of 25

United States District Court
For the Northern District of California

1

were concealing contraband. This class also includes 1) all

arrestees who were subjected to subsequent blanket strip

2

search(es) before arraignment after the initial strip search,

without any reasonable individualized suspicion that they had

3

subsequently acquired and hidden contraband on their persons;

and 2) all persons who, prior to arraignment, were subjected to

4

blanket visual body cavity search(es) incident to placement in a

“safety cell” at any of the San Francisco County jails.

5

(emphasis in original).

6

Plaintiffs now move for partial summary judgment with respect to several of their

7

claims and regarding several affirmative defenses. Defendant Sheriff Hennessey moves for

8

summary judgment that he is protected by qualified immunity.

9

DISCUSSION

10

I. Summary Judgment Standard

11

Summary judgment is appropriate when the “pleadings, depositions, answers to

12

interrogatories, and admissions on file, together with the affidavits, if any, show that there is

13

no genuine issue as to any material fact and that the moving party is entitled to judgment as a

14

matter of law.” Fed. R. Civ. P. 56(c). “In considering a motion for summary judgment, the

15

court may not weigh the evidence or make credibility determinations, and is required to draw

16

all inferences in a light most favorable to the non-moving party.” Freeman v. Arpaio, 125

17

F.3d 732, 735 (9th Cir. 1997). A principal purpose of the summary judgment procedure is to

18

identify and dispose of factually unsupported claims. See Celotex Corp. v. Cattrett, 477 U.S.

19

317, 323-24 (1986).

20

The party moving for summary judgment bears the initial burden of identifying those

21

portions of the pleadings, discovery, and affidavits which demonstrate the absence of a

22

genuine issue of material fact. See id. at 323. Where the moving party will have the burden

23

of proof on an issue at trial, it must affirmatively demonstrate that no reasonable trier of fact

24

could find other than for the moving party. See id. Once the moving party meets this initial

25

burden, the non-moving party must go beyond the pleadings and by its own evidence “set

26

forth specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e). The

27

non-moving party must “identify with reasonable particularity the evidence that precludes

28

summary judgment.” Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996) (quoting Richards

4

Case 3:03-cv-01840-CRB Document 220 Filed 09/22/2005 Page 5 of 25

United States District Court
For the Northern District of California

1 v. Combined Ins. Co., 55 F.3d 247, 251 (7th Cir. 1995)). If the non-moving party fails to

2 make this showing, the moving party is entitled to judgment as a matter of law. See Celotex,

3 477 U.S. at 323.

4 II. Federal Claims

5

Plaintiffs move for summary judgment on several issues that underlie their claim that

6 defendants’ prior strip search policy was unconstitutional pursuant to the Fourth and

7 Fourteenth Amendments to the United States Constitution and therefore is actionable under

8 42 U.S.C. section 1983.

9

The claim that a strip search was performed in violation of the Fourth Amendment is

10 neither new nor unfamiliar. In 1979 the Supreme Court reviewed the constitutionality of the

11 practice of conducting visual body-cavity searches on prison inmates following contact visits

12 by individuals from outside of the prison population. See Bell v. Wolfish, 441 U.S. 520, 558

13 (1979). The Court remarked that “[t]he test of reasonableness under the Fourth Amendment

14 is not capable of precise definition or mechanical application.” Id. at 559. Instead, “[i]n

15 each case it requires a balancing of the need for the particular search against the invasion of

16 personal rights that the search entails.” Id. The Court concluded that the search practice

17 there at issue was not unconstitutional given the significant interest in preserving safety

18 within the detention facility and preventing the smuggling of contraband. Id.

19

Since Bell, the Ninth Circuit has taken up the question of the lawfulness of strip

20 searches in cases like this one involving pre-arraignment arrestees. In the first case to

21 consider the subject, Giles v. Ackerman, 746 F.2d 614 (9th Cir. 1984) (per curiam)

22 (overruled on other grounds by Hodgers-Durgin v. de la Vina, 199 F.3d 1037, 1041 (9th Cir.

23 1999) (en banc)), the court announced the governing standard that “arrestees for minor

24 offenses may be subjected to a strip search only if jail officials have a reasonable suspicion

25 that the particular arrestee is carrying or concealing contraband or suffering from a

26 communicable disease.” 746 F.2d at 615. Such reasonable suspicion may be based on

27 factors such as “the nature of the offense, the arrestee’s appearance and conduct, and the

28 prior arrest record.” Id. at 617. Applying this standard, the court concluded that the policy

5

Case 3:03-cv-01840-CRB Document 220 Filed 09/22/2005 Page 6 of 25

United States District Court
For the Northern District of California

1 of the Bonneville County Jail in Idaho Falls, Idaho, to strip search all arrestees booked there

2 was unconstitutional. Id. at 617. The court found that there was no reasonable suspicion to

3 support the search of the plaintiff because of the minor nature of the offense (failure to pay

4 parking tickets), the fact she had no prior record and because she had been cooperative

5 during the search. Id. at 618.

6

The court has revisited pre-arraignment searches several times, on each occasion

7 reaffirming the standard laid out by Giles. Ward v. County of San Diego, 791 F.2d 1329 (9th

8 Cir. 1986) found no qualified immunity for a San Diego County Sheriff that had enacted a

9 blanket strip search policy which resulted in the visual body cavity search of a misdemeanor

10 arrestee prior to a determination regarding the arrestee’s eligibility for an own recognizance

11 (“O.R.”) release. See id. at 1333. In Thompson v. City of Los Angeles, 885 F.2d 1439 (9th

12 Cir. 1989) the court found valid the strip search of a felony grand theft auto arrestee at the

13 Los Angeles County Jail, stating that the offense in question was “sufficiently associated

14 with violence to justify a visual strip search.” Id. at 1447. In a later case, however, the court

15 found fault with the City of Los Angeles’s blanket policy subjecting all felony arrestees to a

16 visual body cavity search and the Los Angeles Police Department’s (“LAPD”) application of

17 that policy to a woman arrested for a grand theft that did not involve drugs or violence. See

18 Kennedy v. Los Angeles Police Dept., 901 F.2d 702, 710-16 (9th Cir. 1990). Then, in Fuller

19 v. M.G. Jewelry, 950 F.2d 1437 (9th Cir. 1991), the court clarified that strip searches in

20 detention facilities are justified on less than probable cause solely by the need “to protect

21 prisons and jails from smuggled weapons, drugs or other contraband which pose a threat to

22 the safety and security of penal institutions.” Id. at 1447. The court refused to extend the

23 reasonable suspicion standard to body cavity searches for ordinary stolen property, id. at

24 1448, and thus ruled invalid the strip search by the LAPD of two women suspected of having

25 stolen a ring. Id. at 1450.

26

A. Facial Attacks

27

Against this backdrop, plaintiffs move for summary judgment that defendants’ former

28 strip search policy and custom was facially unconstitutional with respect to several blanket

6

Case 3:03-cv-01840-CRB Document 220 Filed 09/22/2005 Page 7 of 25

United States District Court
For the Northern District of California

1 search categories: (1) arrestees with one or more prior convictions or two or more prior

2 arrests for crimes involving drugs, weapons or violence; (2) arrestees charged with a

3 probation violation; (3) individuals arrested on a San Francisco warrant outside of San

4 Francisco County; (4) individuals arrested on a federal charge; (5) individuals held at a San

5 Francisco jail while in transit to another part of the state; (6) arrestees classified for housing

6 in a county jail; (7) individuals placed in safety cells; and (8) individuals strip searched

7 because they signed a consent form.

8

Defendants do not oppose summary judgment on classifications (1) - (5). The Court

9 therefore grants summary judgment with respect to those portions of the policy. Defendants

10 do, however, contest that strip searches of arrestees within categories (6) - (8) violate the

11 Fourth Amendment.

12

1. “Classification” Searches

13

Defendants claim that the jail system’s interest in strip searching pre-trial detainees is

14 at its zenith when arrestees are “classified” for housing in the general jail population. This is

15 true because the introduction of outsiders into the jail system--as opposed to the temporary

16 detention facilities at County Jail 9--poses heightened safety risks to prisoners and guards

17 alike, given the large number of detainees in the jail system and the extended period of

18 detention. Under defendants’ vision of the governing law, these concerns allow for blanket

19 strip searches without individualized suspicion. This position, however, fails in the face of

20 Ninth Circuit precedent to the contrary.

21

Although defendants are correct that the government’s penological interests are

22 heightened when temporary detainees are introduced into the general jail population, such

23 intermingling on its own does not create reasonable suspicion to perform a strip search. As

24 stated by the Ninth Circuit, although the fact an arrestee is to be “placed into contact with the

25 general jail population” is one important factor among many that may be considered in

26 / / /

27 / / /

28 / / /

7

Case 3:03-cv-01840-CRB Document 220 Filed 09/22/2005 Page 8 of 25

United States District Court
For the Northern District of California

1 gauging the reasonableness of a search, “such a factor by itself cannot justify a strip 2 search.”4 Thompson, 885 F.2d at 1447; see also Giles, 746 F.2d at 618-19 (rejecting the

3 notion that placement in the general jail population was enough to validate a strip search

4 because “intermingling is both limited and avoidable” (citation and internal quotation

5 omitted)). Rather than relying on intermingling, the Ninth Circuit has instead found that “the

6 reasonableness determination . . . hinges upon the nature of the . . . offense with which [the

7 arrestee] was charged.” Thompson, 885 F.2d at 1447.

8

Acknowledging this precedent, defendants insist that the intermingling of temporary

9 detainees with the general population is not the sole basis for strip searches in this case;

10 instead they claim that this factor combined with the documented record of serious and

11 widespread contraband smuggling at San Francisco’s jails together provide justification for

12 the blanket policy. They claim that a threat of these proportions was not present in the

13 Bonneville jail considered in Giles, and thus the individualized suspicion limitation

14 articulated there does not extend to this case.

15 / / /

16

17

4Defendants claim that Fuller is to the contrary. There the Ninth Circuit cited with

approval the Sixth Circuit’s decision in Dobrowolskyj v. Jefferson County, 823 F.2d 955 (6th 18 Cir. 1987). That case found that a county had not run afoul of the Fourth amendment where it

had initially conducted a pat down search and did not perform a strip search until the plaintiff 19 “was about to be moved into contact with the general jail population.” Fuller, 950 F.2d at 1448

(quoting Dobrowolskyj, 823 F.2d at 958). 20

How ever, Fuller also approvingly cited a later Sixth Circuit case, Masters v. Crouch, 872 21 F.2d 1248 (6th Cir. 1989), for the proposition that the “fact that [the] detainee was intermingled
with other inmates has never alone been found to justify a strip search without considering the 22 nature of the offense and whether the detainee might attempt to introduce weapons or contraband
into the institution.” Fuller, 950 F.2d at 1448 (emphasis added) (quoting Masters, 872 F.2d at 23 1254). Master relied in part on Hill v. Bogans, 735 F.2d 391 (10th Cir. 1984), which found that
“intermingling [with the prison population] is only one factor to consider in judging the 24 constitutionality of a strip search,” id. at 394, and that where, as were the circumstances there,
“[n]o other conceivable justification exists for the strip search,” id., the search is invalid. See 25 id. (considering the nature of the offense at issue and finding that it was “not commonly
associated by its very nature with the possession of weapons or contraband”). 26

A fair reading of Fuller leads to the conclusion that the court there, consistent with 27 Thompson and the governing law in the Ninth Circuit, treated the intermingling of an arrestee
with the general jail population as only one factor among many that might justify a search. 28 Notably, Thompson cited both Dobrowolskyj and Masters in arriving at its conclusion that
intermingling alone does not justify a strip search. See Thompson, 885 F.2d at 1447.

8

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1

As has the Ninth Circuit on several occasions, this Court recognizes the pressing need

2 to maintain security in jails and prisons and the real and profound threats posed by the

3 introduction of weapons and drugs into that environment. See, e.g., Thompson, 885 F.2d at

4 1446 (“the prevention of the introduction of weapons and other contraband into the jail . . . is

5 indeed an extremely weighty interest”); Kennedy, 901 F.2d at 713 (“These concerns and this

6 interest no doubt are weighty.”). However, defendants claim that the Giles test does not

7 extend to urban jails is belied by subsequent cases. Thompson specifically rejected the

8 notion that intermingling alone--without consideration of some individualized basis for

9 suspicion--was enough to justify a strip search and did so in the context of the Los Angeles

10 County Jail system.

11

To adopt defendants’ view that the severity of the smuggling problem can justify a

12 blanket strip search policy would be to ignore the consistent holdings of the Ninth Circuit

13 that reasonable suspicion may only be founded upon facts that are particular to the individual

14 arrestee. See Giles, 746 F.2d at 615 (holding that there must be reasonable suspicion that

15 “the particular arrestee” is concealing contraband); Ward, 791 F.2d at 1333 (summing up

16 Giles’ holding as requiring “individualized suspicion”); Thompson, 885 F.2d at 1446 (“the

17 arresting officers must have reasonable individualized suspicion”). Such individualized

18 suspicion may arise from knowledge of specific facts about the individual defendant,

19 including “the nature of the offense, the arrestee’s appearance and conduct, and the prior

20 arrest record.” Giles 746 F.2d at 617. It is not enough, as defendants would have it, for the

21 government to demonstrate that contraband smuggling is a significant problem. Instead,

22 there must be some reasonable relationship between the criteria used to identify individuals

23 as eligible for a strip search and the interest in preventing the introduction of contraband.

24 See Giles, 746 F.2d at 618 (reasonableness requirement under the Fourth Amendment

25 requires that the strip search bear some “discernible relationship to security needs” (quoting

26 Logan v. Shealy, 660 F.2d 1007, 1013 (4th Cir. 1981)).

27

Defendants’ policy of strip searching all arrestees classified for housing in the general

28 jail population, coupled with their knowledge of a widespread problem with contraband

9

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1 smuggling in the jail system, is an invalid basis for the blanket policy because these two facts

2 say nothing about whether an individual arrestee classified pursuant to this policy may be

3 concealing weapons or drugs. Individuals destined for housing in the jail may have been

4 classified as such solely because they are not able to post bail or because they have not yet 5 received an O.R. review.5 Yet the Ninth Circuit has rejected the view that these reasons

6 alone can justify a strip search. See Ward, 791 F.2d at 1333 (citing with approval Tinetti v.

7 Wittke, 479 F.Supp. 486, 490 (E.D. Wis. 1979) in which the court found unconstitutional the

8 strip search without reasonable suspicion of an individual who was unable to post bond); id.

9 (“In most instances the unreasonableness of a strip search conducted prior to an O.R. release

10 determination is plain.”).

11

Had defendants been able to proffer evidence demonstrating a high level of smuggling

12 by individuals classified for housing who were not charged with crimes involving weapons,

13 drugs or violence (or within another valid strip search category) then an issue of fact may

14 have been created. See Kennedy, 901 F.2d at 713 (stressing the importance of

15 documentation supporting the assertion that arrestees within the strip search category

16 smuggle contraband into the jail in greater frequency than arrestees outside of the category).

17 Such a showing may have demonstrated that the charge alone was not enough to identify

18 potential smugglers and supported a reasonable suspicion that other classes of individuals

19 destined for the jail were likely to be carrying contraband. The evidence produced by

20 defendants does not support such a theory. While defendants did produce dozens of reports

21 regarding the discovery of contraband during strip searches, the reports fail to provide any

22 indication of the charges of the searched individuals or the reason why they were searched.

23 Absent such evidence there is no reasonable relationship between the criteria triggering a

24 search (classification for housing) and the interest in conducting the search (eliminating the

25 introduction of contraband). See id. (finding the policy at issue unconstitutional because it

26

27
5Indeed one witness testified that the O.R. staff at County Jail 9 is only available to 28 perform interviews for eight hours a day. Individuals who were not given an O.R. interview
during the booking process were nonetheless sent for a housing classification.

10

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1 rested on assumptions and societal judgments, rather than on careful deliberation and

2 documentary evidence).

3

Accordingly, the Court concludes that the Department’s former policy requiring strip

4 searches of all detainees classified for housing in the general jail population without any

5 consideration of the crime charged or any other individualized factors was unconstitutional.

6 This, however, does not end the inquiry:

7

[A] search, although not supportable under an institutional

policy, is not per se unconstitutional. [After determining the

8

policy is invalid, the court] must . . . examine the particular

circumstances surrounding [the detainee’s] arrest to determine

9

whether there was reasonable suspicion to conduct a visual body-

cavity search

10

Kennedy, 901 F.2d at 715; see also Tardiff v. Knox County, 364 F.3d 1, 6 (1st Cir. 2004).

11

Except with regard to the individual plaintiffs discussed below, the Court does not today

12

reach the question of whether searches performed on individual members of the class were

13

justified based on facts particular to the individual search. See Bull v. City & County of San

14

Francisco, No. 03-1840, Memorandum & Order (Doc. # 162), slip op. at 11 (N.D. Cal. June

15

10, 2004) (stating that where the policy cannot by itself justify a search “it is a fair guess that

16

most arrestees were searched” on the basis of the policy although “any potential

17

individualized issues can be addressed later in the litigation and do not defeat class

18

certification”).

19

2. Safety Cell Searches

20

Plaintiffs also challenge the Department’s policy of automatically strip searching

21

detainees on the sole basis that they have been designated for placement in a safety cell.

22

Detainees were placed in a safety cell if they fit into one of six categories: “1. She/he

23

displays bizarre behavior which results in the destruction of property. 2. She/he displays

24

bizarre behavior which reveals an intent to cause self-inflicted harm. 3. She/he appears

25

gravely disabled and less restrictive housing is unavailable. 4. She/he appears to be a danger

26

to self or others. 5. She/he requests to use the safety cell. 6. For observation only, if it is

27

determined by direct observation that the prisoner has ingested items that may cause injury.”

28

“Safety Cell Use” I.A. From these classifications it appears that individuals were generally

11

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For the Northern District of California

1 placed in a safety cell, and therefore strip searched, if prison officials determined that the

2 individual appeared to be suffering from mental illness or was otherwise mentally unstable

3 such that there was a perceived risk that the detainee might engage in violent or self-

4 destructive conduct. Plaintiffs contend that the chosen categories are vague and overbroad,

5 and therefore seek a ruling that the policy is unconstitutional on its face.

6

The Court first notes that the law on this subject is not clearly established. Neither

7 party has found any case that discusses strip searches of pre-arraignment detainees based on

8 the determination that the individual is psychologically unstable. Of course, such detainees

9 present unique and substantial safety concerns that prison officials should be free to address,

10 in part, by ensuring that the detainees are not hiding weapons or other contraband that may be

11 used to harm themselves or others. Defendants here have presented evidence that mentally

12 unstable detainees in San Francisco’s jail system have hidden contraband and have used such

13 contraband in attempts to harm themselves or others. These findings are even more serious

14 in light of the Eighth Amendment obligations of jail mangers to prevent prisoner suicide.

15 See Woodward v. Correctional Medical Services, 368 F.3d 917, 929 (7th Cir. 2004).

16

Standing against these valid safety concerns are the fundamental privacy interests that

17 are infringed by the extreme intrusiveness of a strip search. These interests are no less

18 profound when the subject of the search is mentally disturbed. See Aiken v. Nixon, 236

19 F.Supp.2d 211, 233 (N.D.N.Y. 2002) (discussing privacy interests in the context of strip

20 searches of individuals held in a psychiatric hospital).

21

The interests at stake in safety cell searches (prison safety and prisoner privacy) are

22 therefore identical to those considered in Giles and its progeny. The Court therefore finds

23 that the Giles requirement of reasonable individualized suspicion is the appropriate test for

24 strip searches of pre-arraignment detainees believed to be a danger to themselves or others

25 due to mental instability. See Aiken, 236 F.Supp.2d at 233-34 (adopting “reasonable

26 suspicion” standard for strip searches of individuals who voluntarily admitted themselves

27 into a psychiatric hospital). As articulated by Giles, important factors include “the nature of

28 the offense, the arrestee’s appearance and conduct, and the prior arrest record.” 746 F.2d at

12

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1 617. Of course, in this context different conduct and charges may justify a search than in the

2 ordinary case. For example conduct indicating a detainee may be mentally disturbed in a

3 manner that may lead to unpredictable and potentially harmful conduct could serve as a valid

4 justification for a search. In addition, the searches may be based on a suspicion that types of

5 “contraband” not ordinarily believed to be dangerous, such as shoelaces and other items used

6 for self-strangulation, may be hidden. Nonetheless, the basic framework articulated in Giles

7 remains the appropriate analytical procedure to evaluate these claims.

8

Turning to the policy at issue, the constitutionality of a policy that requires that all

9 individuals placed in a safety cell be strip searched depends on the reasons for the safety cell

10 placement. Under Giles, if the policy requires a reasonable individualized suspicion that the

11 detainee may be concealing drugs or other dangerous contraband, then the policy should be

12 upheld. In the context of mentally unstable detainees, this Court finds that individualized

13 suspicion can be founded upon behavior or circumstances indicating that the detainee may be

14 a danger to herself or others. Such behavior gives rise to legitimately heightened concerns

15 that the detainee could be concealing “contraband” that might be used for harmful purposes,

16 and thus serves as a reasonable basis for a strip search.

17

Here, some criteria identified by the policy at issue are reasonably related to this

18 security interest. These are categories 2 (“bizarre behavior” and “intent to cause self-

19 inflicted harm”); 4 (“danger to self or others”); and 6 (“ingested items that may cause

20 injury”). However, the other categories do not reveal a similar level of relatedness to the

21 interest in safety. Category 1 (“bizarre behavior” and “destruction of property”), for

22 example, could be applied to an individual who has done nothing more than acted in a

23 “bizarre” fashion and committed vandalism. Category 3 (“gravely disabled” and “housing

24 unavailable”) could easily be applied to a physically disabled person who for safety reasons

25 should not be placed in an ordinary cell. Similarly, there is no requirement in category 5

26 (“requests to use the safety cell”) that an officer make an individualized determination that

27 the detainee raises safety concerns. See Aiken, 236 F.Supp.2d at 233-34 (concluding that

28 individuals who voluntarily admit themselves to a psychiatric ward do not surrender all

13

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1 privacy protections and that strip searches of such admittees must be based on reasonable

2 suspicion of concealed drugs or weapons, but not other concealed items).

3

Plaintiffs would have this Court go further and declare all of the safety cell categories

4 to be so overbroad and vague as to be unconstitutional on their face. Admittedly, none of the

5 categories are defined with objective terms that substantially constrain the individual

6 officer’s discretion. However, the process of identifying particular conduct that is indicative

7 of psychiatric disturbance which in turn signals a propensity for violent or self-destructive

8 conduct is inherently subjective and cannot be easily reduced to objective terms. For this

9 reason, officers must be given considerable latitude in making this kind of determination.

10 Thus it was reasonable for the Department to craft a policy that leaves broad discretion with

11 the individual officer.

12

However, since such discretion is to be exercised by the individual officers, the Fourth

13 Amendment analysis must focus on the factors considered by those officers. An individual

14 officer’s subjective finding that a detainee was a danger to self or others, without any facts

15 articulated in support, is not enough to end the inquiry into whether a particular search was

16 constitutional. Thus, although the Department’s policy of allowing individual officers broad

17 discretion to determine which detainees pose a danger to themselves or others is not

18 unconstitutional on its face, plaintiffs may still prevail on their section 1983 claims by

19 showing that the individual officers exercised such discretion in an unconstitutional manner.

20 For example, plaintiff Miki Mangosing was placed in a safety cell and strip searched

21 pursuant to the determination that she was a danger to herself. Records indicate that she was

22 perceived to be under the influence, out of control and unable to remain in a sobering cell.

23 Whether these and other facts support the responsible officers’ conclusion that Mangosing

24 was a risk to herself is a question to be resolved by the appropriate factfinder.

25

In summary, the Court finds that the Department’s policy of strip searching all

26 individuals placed in a safety cell, without regard for the reasons for the particular placement,

27 is unconstitutional on its face. Further, even with respect to searches conducted under the

28 policy pursuant to the determination that a detainee is a danger to self or others, that

14

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1 determination is not enough by itself to justify a search. In such cases, where a plaintiff can

2 show that the individual officer had not conducted the search based on reasonable suspicion

3 (i.e. where the officer was unreasonable in finding that the detainee was a danger to self or

4 others) there may be liability pursuant to section 1983.

5

3. Consent Searches

6

Plaintiffs assert that the Department’s alleged practice of searching all individuals that

7 provided consent to be strip searched is unconstitutional. However, the Court need not reach

8 this issue because, as defendants point out, none of the named plaintiffs have claimed that

9 they were strip searched because they signed a consent form.

10

B. Reasonable Suspicion as to Individual Plaintiffs

11

1. Plaintiffs Zern and Corneau

12

In addition to their facial attack on the Department’s policy as a whole, plaintiffs ask

13 in their motion for summary judgment that plaintiffs Jonah Zern and M arcie Corneau are

14 members of the class. Specifically, plaintiffs challenge the claim that these two individuals

15 were arrested on charges of violence.

16

Zern was charged with a violation of California Penal Code section 148.10, which

17 describes the crime of:

18

resist[ing] a peace officer in the discharge or attempt to discharge

any duty of his or her office or employment and [where the]

19

willful resistance proximately causes death or serious bodily

injury to a peace officer

20

See Kennedy, 901 F.2d at 705 (referring to statutory definition in the process of determining

21

whether a particular charge is a charge of violence). Plaintiffs claim that this charge is not

22

sufficient to provide reasonable suspicion because the statute does not require that the

23

injuries to the officer result from force or violence.

24

The Ninth Circuit has held that “in some cases, the charge itself may give rise to

25

reasonable suspicion” Kennedy, 901 F.2d at 716 (citing Thompson 885 F.2d at 1447). In

26

Thompson the Court held that the charge of grand theft auto provided reasonable suspicion

27

because that crime is “sufficiently associated with violence.” Thompson, 885 F.2d at 1447.

28

Similarly, although a violation of Penal Code section 148.10 does not necessarily involve

15

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For the Northern District of California

1 force or violence, the crime is sufficiently related to violent conduct that the charge by itself

2 justifies a strip search.

3

The same is true with respect to plaintiff Corneau. She was arrested and charged

4 pursuant to California Penal Code section 243(e), which criminalizes a battery “committed

5 against a spouse. . . .” Battery is defined under California law as “any willful and unlawful

6 use of force or violence upon the person of another.” Cal. Penal Code § 242. Once again,

7 although plaintiffs may be correct that a violation of section 243(e) does not necessarily

8 involve violence, the crime is sufficiently associated with violent criminal conduct to justify

9 a strip search.

10

Therefore, plaintiffs Zern and Corneau are not members of the class. Defendants have

11 renewed their earlier motion for summary judgment as to these plaintiffs. Because the Court

12 finds that the searches conducted on these individuals was based on reasonable suspicion, the

13 motion is granted.

14

2. Plaintiffs Bull, Mangosing and Timbrook

15

As discussed above, even where the strip search policy was invalid a particular search

16 may still be found valid if the circumstances of the individual case created a reasonable

17 suspicion. Plaintiffs contend that there is no basis for concluding that there was a reasonable

18 suspicion as to plaintiffs Mary Bull, Miki Mangosing, and Laura Timbrook. However,

19 plaintiffs Bull and M angosing were each searched pursuant to the Department’s safety cell

20 policy. The Court previously noted that these types of searches are deeply grounded in the

21 particular circumstances of the search and do not lend themselves easily to a broad brush

22 approach. Moreover, there is substantial evidence in the record from which a reasonable

23 factfinder could conclude that both Bull and M angosing were searched based on a reasonable

24 suspicion that they might harm themselves or others. For example an initial psychological

25 report regarding Bull states that she was “completely out of touch with reality,” that “[s]he

26 murmurs and smiles to herself very inappropriately,” that “she is not responding to contact,”

27 and that she “[a]t times seems to be talking to someone invisible.” A housing report

28 regarding Mangosing states that she was “out of control.” Accepting these accounts as true

16

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1 and viewing them in the light most favorable to defendants, it is clear that summary judgment

2 should not be granted as to whether reasonable suspicion existed to strip search these

3 plaintiffs.

4

However, the Court reaches a different conclusion with respect to plaintiff Timbrook.

5 The record reveals that Timbrook was arrested pursuant to warrants for displaying a false

6 identification, possession of a forged check with intent to defraud and burglary. After arrest,

7 Timbrook was classified for housing in the general jail population. Defendant has not

8 opposed the motion for summary judgment in Timbrook’s favor and the Court finds nothing

9 in the record that would support the conclusion that there was reasonable individualized

10 suspicion which supported the decision to strip search her. As such, the motion is granted

11 with respect to plaintiff Timbrook.

12

C. Qualified Immunity

13

Sheriff Michael Hennessey moves for partial summary judgment on his defense of

14 qualified immunity, claiming that the law discussed above was not sufficiently clearly

15 established at the time the policy was in effect and that he was reasonable in crafting it as he

16 did.

17

Qualified immunity protects “government officials . . . from liability for civil damages

18 insofar as their conduct does not violate clearly established statutory or constitutional rights

19 of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818

20 (1982). Qualified immunity operates “to ensure that before they are subjected to suit,

21 officers are on notice their conduct is unlawful.” Saucier v. Katz, 533 U.S. 194, 206 (2001).

22 In considering a claim of qualified immunity, a court must first determine whether the

23 plaintiffs have alleged the deprivation of an actual constitutional right. See id. at 201. If

24 they have, the court must then determine whether that right was clearly established at the

25 time of the violation. See id. The relevant inquiry is whether it would be clear to a

26 reasonable officer that his conduct was unlawful in the situation he confronted. Id. at 202.

27 The clearly established test is met if “‘in light of the pre-existing law the unlawfulness [is]

28 apparent.’” Galvin v. Hay, 361 F.3d 1134, 1139 (9th Cir. 2004) (quoting Hope v. Pelzer, 536

17

Case 3:03-cv-01840-CRB Document 220 Filed 09/22/2005 Page 18 of 25

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1 U.S. 730, 739 (2002)). Even if an officer’s actions violate a constitutional right, a reasonable

2 but mistaken belief that his conduct was lawful would result in the grant of qualified

3 immunity. Wilkins v. City of Oakland, 350 F.3d 949, 955 (9th Cir. 2003).

4

Here, Sheriff Hennessey is not protected by qualified immunity from a suit based on

5 his decision to create a blanket policy of strip searching all individuals classified for housing

6 in the general jail population. As discussed above, the policy did violate plaintiffs’

7 constitutional rights. Moreover, the right was clearly established: in an unbroken line of

8 precedent tracing back to 1984 the Ninth Circuit has reaffirmed the fundamental holding of

9 Giles that a strip search of a pre-arraignment detainee must be supported by reasonable

10 individualized suspicion. It was also abundantly clear after Thompson that placement in the

11 general jail population cannot “by itself cannot justify a strip search.” Thompson, 885 F.2d

12 at 1447. Given this clear precedent, the Court finds that reasonable minds could not differ as

13 to what the law required.

14

The legal landscape was far different as to safety cell strip searches. At the time the

15 policy was made there was little if any authority regarding searches of mentally ill or

16 intoxicated detainees in a jail setting. Although this Court finds that Giles provides

17 substantial guidance regarding how this question should be addressed, that precedent does

18 not necessarily compel the result reached here. Accordingly, the law regarding safety cell

19 searches was not clearly established and therefore Sheriff Hennessey’s motion is granted on

20 this issue.

21

D. Monell Claims

22

In their answer, defendants assert the affirmative defense that “[t]he complaint fails to

23 state a federal civil rights claim against the defendants under the doctrine announced in

24 Monell v. Department of Social Services, 436 U.S. 658 (1978).” Plaintiffs move for

25 summary judgment that this defense is inapplicable.

26

In Monell, the Supreme Court held that if the “execution of a government’s policy or

27 custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to

28 represent official policy, inflicts the injury [then] the government as an entity is responsible

18

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1 under § 1983.” Id. at 694. To establish such municipal liability, a plaintiff must satisfy four

2 conditions: “(1) that [the plaintiff] possessed a constitutional right of which he was deprived;

3 (2) that the municipality had a policy; (3) that this policy ‘amounts to deliberate

4 indifference’ to the plaintiff's constitutional right; and (4) that the policy is the ‘moving

5 force behind the constitutional violation.’” Van Ort v. Estate of Stanewich, 92 F.3d 831, 835

6 (9th Cir. 1996) (quoting Oviatt v. Pearce, 954 F.2d 1470, 1474 (9th Cir.1992) (citation

7 omitted)).

8

It is clear that the Department’s policy requiring strip searches of all individuals

9 classified for housing creates municipal liability under Monell. Defendant has not contested

10 this was an official written policy of the City and County of San Francisco. Nor is there any

11 dispute that the policy was the “moving force” behind the constitutional violations. The

12 policy clearly required individual officers to search all detainees classified for housing,

13 without consideration of individualized suspicion. The City and County of San Francisco is

14 therefore liable under Monell. As such, plaintiff’s motion for summary judgment on that

15 issue is granted.

16

However, a closer analysis is necessary when considering whether CCSF is liable for

17 the safety cell strip search policy. Plaintiffs have not presented evidence that the failure of

18 the department to provide more specific restrictions on safety cell strip searches was the

19 “moving force” behind the alleged violations of the detainees’ constitutional rights. Instead,

20 plaintiffs claim that plaintiff Mary Bull was subjected to a safety cell strip search because she

21 refused to submit to a “classification” strip search. However, even accepting these

22 allegations as true, such conduct would amount to a violation of the Department’s safety cell

23 strip search policy and therefore would not create municipal liability. See Henry v. County

24 of Shasta, 132 F.3d 512, 521 (9th Cir. 1997) (suggesting that there is no Monell claim where

25 the officers acted “in violation of the orders or policies that governed their conduct”).

26 Plaintiffs also contend that Miki Mangosing was unconstitutionally strip searched after she

27 was placed in a safety cell pursuant to a finding that she was a danger to herself. However,

28 the constitutionality of such a search would depend on whether the individual officers who

19

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1 chose to place her in a safety cell had reasonable suspicion to believe that she was carrying

2 concealed contraband. It is therefore clear that in each of these cases if the search involved

3 was unconstitutional, the proper defendant would be the individual officers who decided that

4 the search should be conducted. Under these circumstances, it is not enough that the

5 Department left substantial discretion in the hands of the individual officers making safety

6 cell placement determinations. In order for there to be municipal liability, plaintiffs must

7 show that the policy was a moving force behind the constitutional violations and that the

8 Department’s decision not to further restrict officers’ discretion to order safety cell searches

9 amounted to deliberate indifference on the part of the policymakers. Plaintiffs’ have not

10 made such a showing and therefore their motion for summary judgment on this issue is

11 denied.

12

E. Other Affirmative Defenses

13

Plaintiffs have also moved for summary judgment on defendants’ affirmative defenses

14 that the Sheriff is not a “person” liable under section 1983 and that the Sheriff is immune

15 from exemplary and punitive damages. Plaintiffs also ask for summary judgment with

16 respect to the affirmative defenses of estoppel, assumption of risk, and comparative

17 negligence. Defendants have not opposed any of these motions and they are therefore

18 granted.

19 III. State Claims

20

Plaintiffs also move for summary judgment on their strip search claims under

21 California Penal Code section 4030 and the California Constitution.

22

A. Penal Code Section 4030

23

California Penal Code Section 4030 makes unlawful and provides civil liability for

24 certain classes of strip searches of pre-arraignment misdemeanor detainees. Defendants claim

25 that insofar as some members of the class were strip searched after they were declared

26 eligible for housing in the general jail population, such plaintiffs cannot state a claim for

27 relief under section 4030. The parties’ dispute in this regard centers on two portions of

28 section 4030. Subdivision (f) of the statute provides in pertinent part:

20

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United States District Court
For the Northern District of California

1

No person arrested and held in custody on a misdemeanor or

infraction offense, except those involving weapons, controlled

2

substances or violence . . . shall be subjected to a strip search or

visual body cavity search prior to placement in the general jail

3

population, unless a peace officer has determined there is

reasonable suspicion based on specific and articulable facts to

4

believe such person is concealing a weapon or contraband, and a

strip search will result in the discovery of the weapon or

5

contraband.

6 (emphasis added).

7

Subdivision (g) of section 4030 next provides that:

8

[N]o person arrested and held in custody on a misdemeanor or

infraction offense not involving weapons, controlled substances

9

or violence, shall be confined in the general jail population unless

all of the following are true: (i) The person is not cited and

10

released[;] (ii) The person is not released on his or her own

recognizance pursuant to Article 9 (commencing with Section

11

1318) of Chapter 1 of Title 10 of Part 2[;] (iii) The person is not

able to post bail within a reasonable time not less than three

12

hours.

13

Relying on several statements in the legislative history, defendants take the position

14 that these two sections, when read together, allow a strip search to be performed either if

15 there is reasonable suspicion or if the three conditions of subdivision (g) are met. For

16 example, prior to the passage of the bill that became section 4030, the legislative counsel

17 concluded that

18

[u]nder the proposed Section 4030 of the Penal Code, a person

may be strip searched prior to the actual placement of the person

19

in the general jail population, after the requirements of

subdivision (g) for that placement have been met, without the

20

need for compliance with the requirements of subdivision (f).

21 “Strip Searches--#5001” Letter to Honorable Marian Bergeson from Ben E. Dale (Feb. 27,

22 1984) available at 6 Cal. Assembly Journal 11304 (1983-84 Reg. Sess.). Statements in the

23 legislative history by the Senate, Assembly and the Governor at the time of passage adopt the

24 view of the legislative counsel, thus lending further support to defendants’ interpretation.

25

Plaintiffs respond with a citation to the later opinion of the California Attorney

26 General, which concludes that section 4030 prohibits warrantless pre-arraignment strip

27 searches absent reasonable suspicion “prior to the placement of [the detainee] in the general

28 population.” See Cal. Att’y Gen. Opinion No. 88-1201 (July 6, 1989).

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1

The parties dispute arises out of the ambiguity of the phrase “prior to placement in the

2 general jail population” that is used in subdivision (f) and repeated by the Attorney General’s

3 opinion. The term “placement” in this phrase could reasonably be interpreted to refer either

4 to the physical delivery of a detainee to the “general jail” structure, or any number of points

5 in time before then, although after the subdivision (g) requirements are met. It is an accepted

6 principle of statutory interpretation that given such ambiguity reference to the legislative

7 history is allowed. See Day v. City of Fontana, 25 Cal.4th 268, 272 (Cal. 2001); see

8 generally Stephen Breyer, On the Uses of Legislative History in Interpreting Statutes, 65 S.

9 Cal. L. Rev. 845 (1992). Here, the legislative history confirms that “placement” under the

10 statute occurs at some time “prior to the actual placement of the person in the general jail

11 population” (emphasis added), but at some point after the three prerequisites for jail

12 confinement contained in subdivision (g) are met. Thus the Court finds that section 4030 is

13 not violated where a warrantless pre-arraignment strip search is performed without

14 reasonable suspicion prior to a detainee physically arriving in the general jail population.

15

This, however, does not end the inquiry. Some ambiguity remains regarding whether

16 a search may be performed on any prearraignment detainee who satisfies the three conditions

17 described in subdivision (g). Defendant claims that these three factors are sufficient to

18 justify a search under the statute. The Court rejects this view. If defendants were correct, the

19 statute would be reduced to nothing more than a three-hour waiting period for strip searches

20 of any arrestee who is not able to post bail. This is true because the nonoccurrence of the

21 events described in subdivisions (g)(1) and (g)(2) is entirely within the control of the

22 detaining officials. Nothing in the legislative history requires such a sweeping result, and the

23 clear text of the statute counsels against it. The legislative counsel’s opinion states only that

24 searches may be conducted “prior to . . . actual placement.” This reasonable statement

25 cannot be converted into the sweeping conclusion that satisfaction of the subdivision (g)

26 factors alone is both necessary and sufficient to justify a search without reasonable suspicion.

27 That view is contrary to the express intent of the statute to protect detainees’ civil rights by

28 limiting strip searches. See Cal. Penal Code § 4030(a) (“It is the intent of the Legislature in

22

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1 enacting this section to protect the state and federal constitutional rights of the people of

2 California . . . by strictly limiting strip and body cavity searches.”). Rather than adopting this 3 radical view,6 the Court instead finds that a search without reasonable suspicion may take

4 place consistent with section 4030 after: (1) the three subdivision (g) conditions are met; and

5 (2) the circumstances demonstrate that the individual detainee is actually destined for the

6 general jail population absent some unexpected reason for release.

7

Here, defendants have asserted that detainees assigned for housing were not strip

8 searched until detainees were to be “dressed in” to attire appropriate for the general jail

9 population. Confirming this fact, after removing their own clothes and being strip searched,

10 inmates were instructed to put on prison uniforms. Assuming these facts are true, searches

11 under these circumstances did not run afoul of section 4030.

12

B. State Law Immunities

13

Defendants next claim that the city is immune from liability under section 4030

14 because California Government Code section 844.67 provides immunity for public entities

15 from suits brought by prisoners. However, section 4030 was enacted several years after

16 section 844.6 and explicitly provides a private right of action for any detainee aggrieved by a

17 violation of the state. See Cal. Penal Code § 4030(p). Of course, there are only two classes

18 of conceivable defendants in the civil suits contemplated by this private right of action:

19 public entities making strip search policies and individual officers executing such policies.

20 Thus to find that the earlier-enacted immunity prevails over the later-enacted cause of action

21 would be to nullify at least half of the potential scope of the private cause of action.

22

23

6The Court also rejects plaintiffs’ view that subdivision (g) prohibits incorporation of an

inmate into the general jail population prior to an O.R. hearing. The clear text of the statute is 24 to the contrary and requires only that the detainee “is not released on his or her own

recognizance pursuant to” Penal Code section 1318 et seq., which governs O.R. releases. This 25 language clearly requires only the nonoccurrence of an O.R. release, and creates no substantive

rights to a hearing prior to housing in the general jail population. 26

7The statute states: “(a) Notwithstanding any other provision of this part, except as 27 provided in this section and in Sections 814, 814.2, 845.4, and 845.6, or in Title 2.1

(commencing with Section 3500) of Part 3 of the Penal Code, a public entity is not liable for: 28 . . . (2) An injury to any prisoner.” Cal. Gov’t Code § 844.6.

23

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1 However, the later statute is more specific and does not limit the suits to either of these

2 classes of defendants. The Court therefore concludes that immunity on these grounds does

3 not apply.

4

Defendants’ similar claim that Sheriff Hennessey is immune from liability under

5 California Government Code section 820.28 also fails. That statute opens with the

6 qualification that it applies “[e]xcept as otherwise provided by statute.” Cal. Gov’t Code §

7 820.2. As before, the more recent authorization of suit in section 4030 falls squarely within

8 the statutory exception in section 820.2. Therefore no immunity applies.

9

C. State Constitutional Claims

10

Defendants claim that plaintiffs’ cause of action brought under the California

11 Constitution’s privacy clause also fail. Defendants state that in this context the California

12 constitution’s privacy protection should be interpreted consistent with federal interpretations

13 of Fourth Amendment protection. See In re York, 9 Cal. 4th 1133, 1149 (1995). Since the

14 Court has rejected the claim that blanket strip searches of all detainees entering the general

15 jail population may be strip searched consistent with the Fourth Amendment, the same

16 argument must also be rejected here. Further, defendant has cited no case in which the

17 statutory immunity created by Government Code section 844.6 was interpreted to be an

18 available defense against a claim brought under the California Constitution’s privacy clause.

19

D. Other Defenses

20

Plaintiffs also moved for summary judgment with regard to several other of plaintiffs’

21 affirmative defenses: that plaintiffs failed to satisfy claim presentment requirements; that

22 defendants are immune as public employees engaged in the execution and enforcement of

23 law under Government Code section 820.4; and that defendants are immune as third parties

24 under Government Code section 820.8. Defendants have not opposed these motions and they

25 are therefore granted.

26

27

8The statute states: “Except as otherwise provided by statute, a public employee is not

liable for an injury resulting from his act or omission where the act or omission was the result 28 of the exercise of the discretion vested in him, whether or not such discretion be abused.” Cal.

Gov’t Code § 820.2.

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1

CONCLUSION

2

For the foregoing reasons, the Court rules as follows:

3 1. Plaintiff’s motion for partial summary judgment is GRANTED IN PART and

4

DENIED IN PART.

5 2. Defendant Sheriff Hennessey’s motion for summary judgment regarding qualified

6

immunity is GRANTED IN PART and DENIED IN PART.

7 3. Defendant’s renewed motion for summary judgment regarding plaintiffs Zern and

8

Corneau is GRANTED.

9

IT IS SO ORDERED.

10

11

12 Dated: September 22, 2005 13

CHARLES R. BREYER UNITED STATES DISTRICT JUDGE

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1

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4

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7

8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE NORTHERN DISTRICT OF CALIFORNIA

10

11 MARY BULL, et al.,

No. C 03-01840 CRB

12 13 v.

Plaintiffs,

AMENDED MEMORANDUM AND ORDER RE: MOTIONS FOR SUMMARY JUDGMENT

14 CITY & COUNTY OF SAN FRANCISCO, et al.,
15
Defendants. 16
/
17

18

In this class action, plaintiffs challenge the former policy of the City and County of

19 San Francisco (“CCSF”) of performing strip searches on certain classes of pre-arraignment

20 detainees at CCSF’s jails. The Court previously issued a Memorandum and Order on

21 September 22, 2005, but then granted defendant’s motion for reconsideration in order to

22 address several important issues in this lawsuit. The Court received additional briefing and

23 held an oral argument regarding the motion for reconsideration. In light of the Court’s desire

24 to reach a final resolution of those issues, the Court has reconsidered its previous Order to a

25 degree beyond the scope of the motion for reconsideration. This Amended Memorandum

26 and Order Re: M otions for Summary Judgment therefore supercedes the Court’s

27 Memorandum and Order of September 22, 2005. After carefully reviewing the memoranda

28 and evidentiary record submitted by the parties, and having had the benefit of two oral

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1 arguments, the Court hereby GRANTS IN PART and DENIES IN PART plaintiffs’ motion

2 for summary judgment.

3

Defendant Michael Hennessey also filed a motion for summary judgment regarding

4 qualified immunity. That motion is GRANTED IN PART and DENIED IN PART. Finally,

5 defendants’ motion for summary judgment with respect to plaintiffs Zern and Corneau is

6 GRANTED.

7

BACKGROUND

8 I. Factual History

9

The San Francisco Sheriff’s Department (“the Department”) oversees six county jails.

10 After arrest, all arrestees are brought to County Jail No. 9 where they are booked within 24

11 hours of arriving and a determination is made as to whether the detainee will be released or

12 housed pending arraignment. County Jail No. 9 is a temporary detention facility and does not

13 contain accommodations for extended stays. Thus, all detainees who are classified for

14 housing are transferred to another one of the CCSF’s jails. According to defendants,

15 approximately 50,000 individuals are booked and processed through this system each year.

16

Under Department policy in effect until January 21 2004,1 all arrestees entering

17 County Jail 9 were subjected to a pat search and screened by a metal detector. The policy 18 also provided for strip searches2 of detainees who fell into a number of categories, including:

19 arrestees charged with crimes involving narcotics, weapons or violence; arrestees with a

20 criminal history of that type; individuals arrested for a probation violation; individuals

21 arrested outside of San Francisco; arrestees in transit to another jail; arrestees classified for

22 housing in the general jail population; and individuals placed in “safety cells.” Safety cells

23 are single-occupant, padded cells used to house inmates who were considered a danger to

24
1The Department’s new policy, which went into effect in January 2004 and currently 25 remains in effect, is not at issue here.

26

2As noted previously, the Court recognizes that there is a spectrum of possible search

practices, including strip searches and visual body cavity searches, that fall within the general 27 rubric of “strip searches.” The Court and the parties have used this label to cover all such

practices. As it has before, the Court will adhere to the understanding that the distinctions within 28 this category of searches make no difference in the analysis performed for the purposes of this

motion.

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1 themselves or others, to be behaving in a “bizarre” manner or to be “gravely disabled.”

2 Although not provided for in the Department’s written policy, plaintiffs also contend that

3 defendants maintained a practice of performing strip searches on all detainees who signed a

4 form indicating that they consented to such searches.

5

According to defendants, the Department’s strip search policy was applied as follows:

6 upon arrival at County Jail No. 9 all inmates who were deemed searchable based on their

7 charge or criminal history were automatically strip searched. Other arrestees were generally

8 not strip searched unless they were identified for placement in a safety cell or, through the

9 booking process, it was determined that the detainee would not be released within twenty-

10 four hours and therefore would need to be housed in another jail facility. For example,

11 individuals who were cited and released, individuals who were temporarily detained because

12 they were intoxicated, and individuals who said they would be able to post bail would be

13 classified for release and therefore not be strip searched. In summary, the Department

14 adopted a policy of strip searching all individuals who were classified for housing in the

15 general jail population.

16

Strip searches at County Jail No. 9 have led to the discovery of weapons and other

17 contraband on the persons of arrestees. Defendant produced evidence that from April 2000

18 through April 2005 strip searches at County Jail No. 9 resulted in the discovery of 73 cases of

19 illegal drugs or drug paraphernalia hidden in body cavities. In that same time period, six

20 weapons were also discovered as a result of strip searches. In addition, safety cell searches 21 resulted in the discovery of weapons on three other detainees.3

22 II. Procedural History

23

Plaintiffs filed this action on April 23, 2003, alleging causes of action based on the

24 Fourth and Fourteenth Amendments to the United States Constitution, 42 U.S.C. section

25

26

3Defendants provided contraband reports for a period that includes searches conducted

under both the prior policy and the newer policy. If these reports are divided into the two policy 27 periods, the result is that 49 instances of drug-related contraband were discovered during the old

regime and 14 instances were discovered after the change. As for weapons, three were found 28 in non-safety cell searches prior to enactment of the new policy and three were found afterwards.

All safety cell discoveries were made prior to the policy change.

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1 1983, and several provisions of state law. In an order issued June 10, 2004, this Court

2 granted plaintiffs’ motion to certify a class under Rule 23(b)(3). The class was defined as:

3

All persons who, during the applicable period of limitations, and

continuing to date, were arrested on any charge not involving

4

weapons, controlled substances, or a charge of violence, and not

involving a violation of parole or a violation of probation (where

5

consent to search is a condition of such probation), and who were

subjected to a blanket visual body cavity strip search by

6

defendants before arraignment at a San Francisco County jail

facility without any individualized reasonable suspicion that they

7

were concealing contraband. This class also includes 1) all

arrestees who were subjected to subsequent blanket strip

8

search(es) before arraignment after the initial strip search,

without any reasonable individualized suspicion that they had

9

subsequently acquired and hidden contraband on their persons;

and 2) all persons who, prior to arraignment, were subjected to

10

blanket visual body cavity search(es) incident to placement in a

“safety cell” at any of the San Francisco County jails.

11

(emphasis in original).

12

Plaintiffs previously moved for partial summary judgment with respect to several of

13

their claims and regarding several affirmative defenses. Defendant Sheriff Hennessey also

14

moved for summary judgment regarding his assertion that he is protected by qualified

15

immunity. The Court issued a Memorandum and Order dated September 22, 2005, that

16

addressed both of those motions. Subsequently, the CCSF filed a motion for reconsideration

17

to address five categories of strip searches on which the Court granted summary judgment in

18

favor of the plaintiff because the CCSF did not oppose the motion. Although the CCSF did

19

not, in fact, oppose plaintiff’s motion as to those categories, the Court granted the motion for

20 reconsideration in order to resolve as many issues on the merits as possible.4 To that end, the

21

Court has reconsidered the entire motion and issues this Memorandum and Order.

22

LEGAL STANDARDS

23

I. Summary Judgment

24

Summary judgment is appropriate when the “pleadings, depositions, answers to

25

interrogatories, and admissions on file, together with the affidavits, if any, show that there is

26

27
4The Court erred in carving out two of the five categories discussed in defendant’s motion 28 for leave to file a motion for reconsideration. The Court will address all five categories raised
in defendant’s motion for reconsideration in this Order.

4

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1 no genuine issue as to any material fact and that the moving party is entitled to judgment as a

2 matter of law.” Fed. R. Civ. P. 56(c). “In considering a motion for summary judgment, the

3 court may not weigh the evidence or make credibility determinations, and is required to draw

4 all inferences in a light most favorable to the non-moving party.” Freeman v. Arpaio, 125

5 F.3d 732, 735 (9th Cir. 1997). A principal purpose of the summary judgment procedure is to

6 identify and dispose of factually unsupported claims. See Celotex Corp. v. Cattrett, 477 U.S.

7 317, 323-24 (1986).

8

The party moving for summary judgment bears the initial burden of identifying those

9 portions of the pleadings, discovery, and affidavits which demonstrate the absence of a

10 genuine issue of material fact. See id. at 323. Where the moving party will have the burden

11 of proof on an issue at trial, it must affirmatively demonstrate that no reasonable trier of fact

12 could find other than for the moving party. See id. Once the moving party meets this initial

13 burden, the non-moving party must go beyond the pleadings and by its own evidence “set

14 forth specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e). The

15 non-moving party must “identify with reasonable particularity the evidence that precludes

16 summary judgment.” Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996) (quoting Richards

17 v. Combined Ins. Co., 55 F.3d 247, 251 (7th Cir. 1995)). If the non-moving party fails to

18 make this showing, the moving party is entitled to judgment as a matter of law. See Celotex,

19 477 U.S. at 323.

20 II. Fourth Amendment Challenges to Strip Searches

21

The claim that a strip search was performed in violation of the Fourth Amendment is

22 neither new nor unfamiliar. In 1979, the Supreme Court reviewed the constitutionality of the

23 practice of conducting visual body-cavity searches on prison inmates following contact visits

24 by individuals from outside of the prison population. See Bell v. Wolfish, 441 U.S. 520, 558

25 (1979). The Court remarked that “[t]he test of reasonableness under the Fourth Amendment

26 is not capable of precise definition or mechanical application.” Id. at 559. Instead, “[i]n

27 each case it requires a balancing of the need for the particular search against the invasion of

28 personal rights that the search entails.” Id. The Court concluded that the search practice

5

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1 there at issue was valid given the severity of the charges, the significant risks of smuggling

2 contraband posed by contact visits, and the significant interest in preserving safety within the

3 detention facility. Id.

4

Since Wolfish, the Ninth Circuit has taken up the question of the lawfulness of strip

5 searches in cases like this one involving pre-arraignment arrestees. In the first case to

6 consider the subject, Giles v. Ackerman, 746 F.2d 614 (9th Cir. 1984) (per curiam)

7 (overruled on other grounds by Hodgers-Durgin v. de la Vina, 199 F.3d 1037, 1041 (9th Cir.

8 1999) (en banc)), the court announced the governing standard that “arrestees for minor

9 offenses may be subjected to a strip search only if jail officials have a reasonable suspicion

10 that the particular arrestee is carrying or concealing contraband or suffering from a

11 communicable disease.” 746 F.2d at 615. Such reasonable suspicion may be based on

12 factors such as “the nature of the offense, the arrestee’s appearance and conduct, and the

13 prior arrest record.” Id. at 617. Applying this standard, the court concluded that the policy

14 of the Bonneville County Jail in Idaho Falls, Idaho, to strip search all arrestees booked there

15 was not proper in light of the institution’s security. Id. at 617. The court ruled that there was

16 no reasonable suspicion to support the search of the plaintiff because of the minor nature of

17 the offense (failure to pay parking tickets), the fact she had no prior record, and because she

18 had been cooperative during the search. Id. at 618. The court further distinguished Wolfish

19 by noting that arrest and confinement is unplanned, thereby rendering a blanket strip search

20 policy ineffective to the law enforcement objectives of preventing contraband from entering

21 the county jail.

22

The Ninth Circuit has revisited pre-arraignment searches several times, on each

23 occasion reaffirming the individualized reasonable suspicion standard laid out by Giles. In

24 Ward v. County of San Diego, 791 F.2d 1329 (9th Cir. 1986), the court found no qualified

25 immunity for a San Diego County Sheriff that had enacted a blanket strip search policy

26 which resulted in the visual body cavity search of a misdemeanor arrestee prior to a

27 determination regarding the arrestee’s eligibility for an own recognizance (“O.R.”) release.

28 See id. at 1333 (“In most instances the unreasonableness of a strip search conducted prior to

6

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1 an O.R. release determination is plain.”). In Thompson v. City of Los Angeles, 885 F.2d

2 1439 (9th Cir. 1989), the court found that the strip search of a felony grand theft auto arrestee

3 at the Los Angeles County Jail was valid based on the charge alone, stating that the offense

4 in question was “sufficiently associated with violence to justify a visual strip search.” Id. at

5 1447. In a later case, however, the Ninth Circuit found fault with the City of Los Angeles’s

6 blanket policy subjecting all felony arrestees to a visual body cavity search and the Los

7 Angeles Police Department’s (“LAPD”) application of that policy to a woman arrested for a

8 grand theft that did not involve drugs or violence. See Kennedy v. Los Angeles Police Dept.,

9 901 F.2d 702, 710-16 (9th Cir. 1990) (impliedly overruled on other grounds by Hunter v.

10 Bryant, 502 U.S. 224 (1991) (per curiam)). In Kennedy, the court emphasized that the

11 severity of the charge bore no reasonable relationship to institutional security concerns. Id. at

12 713 (“[T]he enacted policy, if it is to be constitutional, must be ‘reasonably related’ to the

13 penal institution’s interest in maintaining security.”). Then, in Fuller v. M.G. Jewelry, 950

14 F.2d 1437 (9th Cir. 1991), the court clarified that strip searches in detention facilities are

15 justified on less than probable cause solely by the need “to protect prisons and jails from

16 smuggled weapons, drugs or other contraband which pose a threat to the safety and security

17 of penal institutions.” Id. at 1447. The court refused to extend the reasonable suspicion

18 standard to body cavity searches for ordinary stolen property, id. at 1448, and ruled invalid

19 the strip search by the LAPD of two women suspected of having stolen a ring. Id. at 1450.

20

DISCUSSION

21

Plaintiffs move for summary judgment to determine liability on several issues that

22 underlie their claim that defendants’ prior strip search policy was unconstitutional pursuant to

23 the Fourth and Fourteenth Amendments to the United States Constitution and actionable

24 under 42 U.S.C. section 1983. In particular, plaintiffs challenge the following search

25 categories within the policy: (1) arrestees with one or more prior convictions or two or more

26 prior arrests for crimes involving drugs, weapons or violence within the previous five years;

27 (2) arrestees charged with a probation violation (who have not consented to searches of their

28 persons as a condition of probation); (3) individuals arrested on a San Francisco warrant

7

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1 outside of San Francisco County; (4) individuals arrested on a U.S. Marshal hold; (5)

2 individuals held at a San Francisco jail while in transit to another part of the state; (6)

3 arrestees classified for housing in a county jail; (7) individuals placed in safety cells; and (8) 4 individuals strip searched because they signed a consent form.5 Plaintiffs’ challenge applies

5 only to eligible class members, which does not include anyone arrested on charges involving

6 weapons, controlled substances, or violence, and also does not include anyone who was strip

7 searched upon an individualized finding of reasonable suspicion that an arrestee may be

8 concealing weapons or contraband.

9 I. Standing

10

As a threshold matter, defendants contest plaintiffs’ standing to challenge any of the

11 abovementioned categories, (1) through (8) supra, pursuant to which none of the named

12 plaintiffs were searched. Defendants argue that plaintiffs searched under one of these

13 categories do not have standing to challenge other categories because no “case or

14 controversy” yet exists. Yet defendants do not dispute that the named plaintiffs were

15 personally injured and have standing to bring this lawsuit on other grounds. See Lewis v.

16 Casey, 518 U.S. 343, 349 (1996). Nor do defendants argue that plaintiffs did not have

17 standing to bring this action when it was initiated.

18

Plaintiffs have standing to make a facial challenge as to the constitutionality of the

19 City’s former strip search policy. The Court has previously determined that the named

20 plaintiffs are adequate and typical class representatives who will actively pursue this

21 litigation and represent the interests of all class members. Moreover, defendants do not

22 dispute that the class as a whole includes individuals searched pursuant to all of the

23 aforementioned categories. Defendants’ argument amounts to little more than a challenge to

24 the class definition, which is not the subject of this motion.

25

26

27

5Plaintiffs’ original Memorandum of Points and Authorities in Support of Partial

Summary Judgment did not include any argument regarding “secondary searches,” the category

28 of searches that included individuals searched for a second time prior to arraignment. Therefore

the Court does not address that issue here.

8

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1

Moreover, defendants misapply the two district court cases they cite in support of their

2 argument. The issue in both of those cases was whether the putative named plaintiffs had

3 standing to bring the lawsuit, which is not disputed here. Accordingly, the Court finds that

4 plaintiffs do have standing to challenge the CCSF’s former strip search policy on its face,

5 including categories (1) through (8) listed above. To the extent that defendants standing

6 argument challenges whether plaintiffs can make an as-applied challenge to categories in

7 which no named plaintiff was searched, defendants are correct. An as-applied challenge to

8 an individual category requires a factual foundation for the Court to analyze, which can only

9 be provided by the facts surrounding the strip search of an individual.

10 II. Facial Challenges

11

Plaintiff’s motion for partial summary judgment avers that the categories of the

12 CCSF’s policy listed above are unconstitutional on their face. Defendants urge the Court to

13 apply the standard set forth in United States v. Salerno to determine whether the relevant

14 parts of the policy here are unconstitutional. In Salerno, the Supreme Court held that a facial

15 challenge to a legislative act is “the most difficult challenge to mount successfully, since the

16 challenger must establish that no set of circumstances exists under which the Act might be 17 valid.” United States v. Salerno, 481 U.S. 739, 745 (1987).6

18

The Ninth Circuit, however, has not applied Salerno to cases challenging the

19 constitutionality of strip search policies. See Fuller v. M.G. Jewelry, 950 F.2d 1437, 1452

20 (9th Cir. 1991) (noting that the Ninth Circuit has held the “LAPD strip search policy is

21 unconstitutional on its face” even though it never applied Salerno); see also Tardiff v. Knox

22 County, 356 F.3d 1, 6 (1st Cir. 2004) (Boudin, C. J.). Instead, case law in this circuit has

23 used the analysis first enumerated in Bell v. Wolfish to determine whether the policy itself is

24

25

6In City of Chicago v. Morales, 527 U.S. 41, 55 n.22 (1999), a plurality of the Supreme

Court called into question the continuing viability of the Salerno standard. Subsequently, 26 however, the Ninth Circuit has reaffirmed that the general standard for a facial constitutional

challenge to a legislative act not involving the First Amendment or abortion remains the one set 27 forth in United States v. Salerno, 481 U.S. 739 (1987). See S.D. Myers, Inc. v. City and County

of San Francisco, 253 U.S. 461, 467 (9th Cir. 2001) (recognizing that the Supreme Court has 28 overruled Salerno in some contexts, but stating that “we will not reject Salerno in other contexts

until a majority of the Supreme Court clearly directs us to do so”).

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1 unconstitutional. See Kennedy v. Los Angeles Police Dept., 901 F.2d 702, 714 (9th Cir.

2 1990) (“On balance, the LAPD’s policy cannot withstand the constitutional review 3 articulated in Wolfish.”).7 Therefore, the Court will follow Ninth Circuit precedent and

4 analyze the facial challenges under Wolfish.

5

A. “Classification” Searches

6

Defendants claim that the jail system’s interest in strip searching pre-trial detainees is

7 at its zenith when arrestees are “classified” for housing in the general jail population. This is

8 true because the introduction of outsiders into the jail system–as opposed to the temporary

9 detention facilities at County Jail No. 9–poses heightened safety risks to prisoners and guards

10 alike, given the large number of detainees in the jail system and the extended period of

11 detention. Under defendants’ view of the governing law, these concerns allow for blanket

12 strip searches without individualized suspicion. This position, however, fails in the face of

13 Ninth Circuit precedent to the contrary.

14

Although defendants are correct that the government’s penological interests are

15 heightened when temporary detainees are introduced into the general jail population, such

16 intermingling on its own does not create reasonable suspicion to perform a strip search. As

17 stated by the Ninth Circuit, although the fact an arrestee is to be “placed into contact with the

18 general jail population” is one important factor among many that may be considered in 19 gauging the reasonableness of a search, “such a factor by itself cannot justify a strip search.”8

20

21

7Even if the policy itself is deemed to be unconstitutional, however, the liability

determination is not complete. Defendants can still show that a particular search was conducted 22 on the basis of individualized suspicion rather than a categorical application of the policy. See

Kennedy, 901 F.2d at 715; see also Fuller, 950 F.2d at 1446 (noting that even where an

23 unconstitutional blanket policy exists, a search can be justified on other grounds). Other than

the individuals discussed below, the Court does not have the occasion to address whether any

24 individual searches were unconstitutional.

25

8Defendants claim that Fuller is to the contrary. There the Ninth Circuit cited with

approval the Sixth Circuit’s decision in Dobrowolskyj v. Jefferson County, 823 F.2d 955 (6th 26 Cir. 1987). That case found that a county had not run afoul of the Fourth Amendment where it

had initially conducted a pat down search and did not perform a strip search until the plaintiff 27 “was about to be moved into contact with the general jail population.” Fuller, 950 F.2d at 1448
(quoting Dobrowolskyj, 823 F.2d at 958). 28

How ever, Fuller also approvingly cited a later Sixth Circuit case, Masters v. Crouch, 872

10

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1 Thompson, 885 F.2d at 1447; see also Giles, 746 F.2d at 618-19 (rejecting the notion that

2 placement in the general jail population was enough to validate a strip search because

3 “intermingling is both limited and avoidable” (citation and internal quotation omitted)).

4 Rather than relying on the mere fact of intermingling, the Ninth Circuit has consistently

5 noted that factors to be considered in determining whether reasonable suspicion exists to

6 warrant a strip search include “the nature of the offense, an arrestee’s appearance and

7 conduct, and the prior arrest record.” Giles, 746 F.2d at 617; see also Thompson, 885 F.2d at

8 1446.

9

Defendants’ additional justification–the documented record of serious and widespread

10 contraband smuggling at San Francisco’s jails–is not sufficient to uphold the constitutionality

11 of the categorical strip search policy. As has the Ninth Circuit on several occasions, the

12 Court recognizes the pressing need to maintain security in jails and prisons and the real and

13 profound threats posed by the introduction of weapons and drugs into that environment. See,

14 e.g., Thompson, 885 F.2d at 1446 (“the prevention of the introduction of weapons and other

15 contraband into the jail ... is indeed an extremely weighty interest”); Kennedy, 901 F.2d at

16 713 (“These concerns and this interest no doubt are weighty.”). Yet to adopt defendants’

17 view that the severity of the smuggling problem can justify a blanket strip search policy

18 would be to ignore the consistent holdings of the Ninth Circuit that reasonable suspicion may

19 only be founded upon facts that are particular to the individual arrestee. See Giles, 746 F.2d

20

21 F.2d 1248 (6th Cir. 1989), for the proposition that the “fact that [the] detainee was intermingled
with other inmates has never alone been found to justify a strip search without considering the 22 nature of the offense and whether the detainee might attempt to introduce weapons or contraband
into the institution.” Fuller, 950 F.2d at 1448 (emphasis added) (quoting Masters, 872 F.2d at 23 1254). Master relied in part on Hill v. Bogans, 735 F.2d 391 (10th Cir. 1984), which found that
“intermingling [with the prison population] is only one factor to consider in judging the 24 constitutionality of a strip search,” id. at 394, and that where, as were the circumstances there,
“[n]o other conceivable justification exists for the strip search,” id., the search is invalid. See 25 id. (considering the nature of the offense at issue and finding that it was “not commonly
associated by its very nature with the possession of weapons or contraband”). 26
A fair reading of Fuller leads to the conclusion that the court there, consistent with 27 Thompson and the governing law in the Ninth Circuit, treated the intermingling of an arrestee
with the general jail population as only one factor among many that might justify a search. 28 Notably, Thompson cited both Dobrowolskyj and Masters in arriving at its conclusion that
intermingling alone does not justify a strip search. See Thompson, 885 F.2d at 1447.

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1 at 615 (holding that there must be reasonable suspicion that “the particular arrestee” is

2 concealing contraband); Ward, 791 F.2d at 1333 (summing up Giles’ holding as requiring

3 “individualized suspicion”); Thompson, 885 F.2d at 1446 (“the arresting officers must have

4 reasonable individualized suspicion”). It is not enough, as defendants would have it, for the

5 government to demonstrate that contraband smuggling is a significant problem. Instead,

6 there must be some reasonable relationship between the criteria used to identify individuals

7 as eligible for a strip search and the interest in preventing the introduction of contraband.

8 See Giles, 746 F.2d at 618 (reasonableness requirement under the Fourth Amendment

9 requires that the strip search bear some “discernible relationship to security needs”) (quoting

10 Logan v. Shealy, 660 F.2d 1007, 1013 (4th Cir. 1981)).

11

Defendants have proffered no evidence demonstrating a high level of smuggling by

12 individuals classified for housing who were not charged with crimes involving weapons,

13 drugs or violence (or within another valid strip search category). See Kennedy, 901 F.2d at

14 713 (stressing the importance of documentation supporting the assertion that arrestees within

15 the strip search category smuggle contraband into the jail in greater frequency than arrestees

16 outside of the category). Such a showing may have demonstrated that the charge alone was

17 not enough to identify potential contraband smugglers and supported a reasonable suspicion

18 that other classes of individuals destined for the jail were likely to be security risks. While

19 defendants did produce dozens of reports regarding the discovery of contraband during strip

20 searches, the reports fail to provide any indication of the charges of the searched individuals

21 or the reason why they were searched. Absent such evidence there is no reasonable

22 relationship between the criteria triggering a search (classification for housing) and the

23 interest in conducting the search (eliminating the introduction of contraband). See id.

24 (finding the policy at issue unconstitutional because it rested on assumptions and societal

25 judgments, rather than on careful deliberation and documentary evidence).

26

Defendants’ policy of strip searching all arrestees classified for housing in the general

27 jail population, coupled with their knowledge of a widespread problem with contraband

28 smuggling in the jail system, is an invalid basis for the blanket policy because these two facts

12

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1 say nothing about whether an individual arrestee classified pursuant to this policy may be

2 concealing weapons or drugs. Accordingly, the Court concludes that the Department’s

3 former policy requiring strip searches of all detainees classified for housing in the general jail

4 population without any consideration of the crime charged or any other individualized factors

5 was unconstitutional. Plaintiff’s motion for summary judgment as to classification searches is

6 therefore GRANTED.

7

B. Criminal History Searches

8

Plaintiffs challenge defendants’ former policy as it relates to arrestees with one or

9 more prior convictions or two or more prior arrests for crimes involving drugs, weapons or

10 violence within the prior five years. Plaintiffs urge the Court to follow Watt v. City of

11 Richardson, a Fifth Circuit case where a strip search of a woman as a result of an old drug

12 conviction was deemed unconstitutional. 849 F.2d 195 (5th Cir. 1988).

13

The Court is unpersuaded in this instance by Watt, particularly in light of Ninth

14 Circuit precedent to the contrary. First, the court in Watt made clear that only the particular

15 search in question, not all searches under that policy, was unconstitutional. Second, the

16 policy in Watt had no limiting restrictions, unlike here, where the policy requires a prior

17 conviction or multiple arrests to have occurred within the previous five years.

18

Most importantly, it is now settled law in the Ninth Circuit that reasonable suspicion

19 may be based on factors such as “the nature of the offense, the arrestee’s appearance and

20 conduct, and the prior arrest record.” Giles, 746 F.2d at 617 (emphasis added). Plaintiffs

21 urge the Court to require more than a prior arrest record of the type included in this category

22 in order to make a finding that individual reasonable suspicion exists. Plaintiffs, however,

23 cite to no case supporting that proposition and the Court is not inclined to agree. A prior

24 arrest record that includes offenses or arrests for crimes that courts have long recognized

25 pose a sufficient risk to institutional security outweighs the arrestees’ privacy interests,

26 particularly when that record occurred within a limited time period such as the prior five

27 years. The Court therefore finds as a matter of law that defendants had reasonable suspicion

28 to search individuals pursuant to this category based on their prior record involving drugs,

13

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1 weapons or violence. As a result, the Court DENIES plaintiff’s motion for summary

2 judgment as to this category and GRANTS summary judgment for defendants.

3

C. Probation Violations

4

As a threshold matter, the class definition makes clear that the only individuals

5 challenging the City’s policy of strip searching all arrestees charged with a probation

6 violation are those who did not consent to searches of their persons as a condition of

7 probation. Therefore, the Court’s inquiry focuses on the apparently narrow group of

8 arrestees who were strip searched pursuant to this category of the policy. See Declaration of

9 Arturo Faro ¶ 7 (estimating that two-thirds of probationers consent to searches as a condition

10 of probation). This category of arrestees is further reduced when probationers arrested for

11 crimes involving violence, drugs, or weapons are excluded. Furthermore, the Court assumes

12 that none of the arrestees in this category had a prior conviction–including their conviction

13 underlying the period of probation at issue–involving drugs, violence or weapons because

14 otherwise they could fall into the “criminal history” category and validly be strip searched.

15

Defendants correctly assert that probationers do not benefit from the same protections

16 as average citizens and therefore they have a diminished expectation of privacy. See United

17 States v. Knights, 534 U.S. 112 (2001). Defendants essentially argue that under the Wolfish

18 balancing test, that diminished expectation of privacy reduces the threshold for institutional

19 security concerns sufficiently to defeat summary judgment. Yet probationers maintain some

20 privacy rights. See Kennedy, 901 F.2d at 712 (“Convicted prisoners ... retain some

21 constitutional liberties.”). Therefore, the Fourth Amendment requires that some nexus exists

22 between the security needs of the institution and a strip search of individuals arrested for

23 violating probation. In fact, the enacted policy must be reasonably related to the institution’s

24 interest in safety. See Kennedy, 901 F.2d at 713. In this narrow category of arrestees who

25 were neither previously convicted of, nor presently charged with, offenses associated with

26 heightened risks of concealing contraband, the mere fact that an individual was arrested for a

27 probation violation is insufficient to warrant a strip search. Some degree of individualized

28 suspicion that a probation violator poses a safety risk must exist in order to justify a strip

14

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1 search. Yet defendants had no individualized suspicion of security risks when strip searching

2 individuals pursuant to this categorical policy. As a result, the Court finds unconstitutional

3 defendants’ policy of strip searching probation violators for whom consent to searches of

4 their persons was not a condition of probation. See Marriott v. County of Montgomery, 227

5 F.R.D. 159 (N.D.N.Y. 2005) (preliminarily enjoining county policy of strip searching

6 probation violators). Thus plaintiff’s motion for summary judgment as to this narrow

7 category is GRANTED.

8

D. Arrestees Transferred from/to Other Jurisdictions

9

Plaintiffs challenge the policy as it relates to categories of arrestees who were strip

10 searched because they were (1) arrested on a San Francisco warrant outside of San Francisco

11 County, (2) arrested on a U.S. Marshal hold, or (3) held at a San Francisco jail while in

12 transit to another part of the state. The Court first notes that both parties’ arguments

13 regarding these categories are vague, speculative, and generalized. As a result, it is difficult

14 for the Court to determine with any precision whether arrestees in this category are any

15 different from those arrested in San Francisco who were subject to the former strip search

16 policy. But see Decl. of Ellen Brin ISO Mot. for Reconsideration.

17

It is, however, clear that defendants’ justification for strip searching arrestees in these

18 categories because they may have had contact visits from lawyers or doctors is insufficient to 19 withstand careful scrutiny.9 Defendants contend that state law permits arrestees housed in

20 jail to receive contact visits from professionals such as their attorney, physicians, surgeons,

21 or psychologists. See Def. Mem. at 4 n.3. Yet defendants provide no evidence that any

22 professional has attempted to smuggle contraband into the jail through a client or patient.

23 The Court is unwilling, without any evidence to the contrary, to accept the notion that

24 professionals who work within the criminal justice system would conspire with arrestees to

25 introduce contraband to the general jail population. Therefore the Court is unpersuaded by

26 the argument that this type of contact visit poses a risk to jail security.

27
9Defendants present no argument or evidence that anyone other than legal or medical 28 professionals can visit with arrestees in these categories. Accordingly, the Court makes no
findings regarding any contact visits from the general public.

15

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1

Defendants also argue, and plaintiffs appear to concede, that at least some of the

2 arrestees in these categories mingled with the general jail population before being transferred

3 to San Francisco. This presents a different scenario from that of the line of Ninth Circuit

4 case law, beginning with Giles, holding strip search policies unconstitutional by

5 distinguishing Wolfish. There, the fact that pre-arraignment arrestees could not anticipate

6 intermingling with the general jail population raised the threshold of individualized suspicion

7 necessary to justify a strip search. See Giles, 746 F.2d at 617 (distinguishing the planned

8 visits in Wolfish from the “unplanned events” of being arrested and confined in County jail

9 and noting that “the policy could not possibly deter arrestees from carrying contraband”).

10 But where an arrestee has knowledge that he may intermingle with the general jail population

11 in San Francisco, a different scenario is presented which leaves open the possibility that

12 contraband could be intentionally smuggled into a San Francisco jail. The Court cannot say

13 as a matter of law based on this record that searches pursuant to these categories are

14 unconstitutional because it is possible that the heightened risk to institutional security

15 outweighs the arrestees’ privacy interests in some instances. Furthermore, the Court is

16 unwilling to make a determination as a matter of law based on speculative, conclusory and

17 disputed allegations. While the Court’s analysis with regard to classification searches above

18 would apply to any arrestees whose first contact with the criminal justice system occurred at

19 County Jail No. 9, it is impossible to determine from the record whether anyone fits that

20 description. Accordingly, plaintiffs’ motion for summary judgment regarding these three

21 categories is DENIED.

22

E. Consent Searches

23

Plaintiffs contend that defendants’ former custom and practice of strip searching

24 arrestees upon their consent was unconstitutional. Defendants did not oppose plaintiff’s

25 motion as to this category of strip searches. Still, in order to prevail on such a claim,

26 plaintiffs must show that consent was not freely given as a matter of law. See United States

27 v. Chan-Jimenez, 125 F.3d 1324, 1327 (9th Cir. 1997) (citing Schneckloth v. Bustamonte,

28 412 U.S. 218 (1973)). Under the totality of the circumstances analysis required here, the

16

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1 Ninth Circuit has identified five factors to be considered in determining the voluntariness of

2 a strip search. See United States v. Patayan Soriano, 361 F.3d 494 (9th Cir. 2004) (citing

3 cases). Those that are relevant here include whether (1) the person was in custody; (2) the

4 officer had his weapon drawn or was otherwise threatening force; and (3) the officer

5 informed the suspect of his right to refuse consent. Id. at 502. The Ninth Circuit has never

6 applied these factors to consent for a strip search, but it is self-evident that, at a minimum,

7 factors that are relevant to the search of an automobile would be relevant to the more 8 invasive procedure of a strip search.10

9

This inquiry is a fact-intensive one that requires a careful evaluation of evidence

10 relating to a determination of voluntariness. The Court, however, does not decide the validity

11 of an individual search pursuant to this policy. In order to rule on the constitutionality of this

12 category of searches, the Court must therefore find that, as a matter of law, consent to a strip

13 search under this custom or practice could not have been voluntary under the circumstances 14 at County Jail No. 9.11 Moreover, two conflicting factors relating to every consent search are

15 not in dispute. First, all those searched were in custody. Second, all those searched

16 affirmatively signed a piece of paper acknowledging their consent. Neither factor, however,

17 is dispositive.

18

Plaintiffs present substantial evidence that it was the custom and practice of CCSF

19 officers to present a consent form to every arrestee who arrived at County Jail No. 9,

20 regardless of whether there was reasonable suspicion that any individual arrestee may have

21 been concealing contraband. The practice included an altered “Strip Search Authorization”

22 form on which a “consent to search” line was added and that was presented to eligible

23 arrestees immediately after booking and prior to classification. Plaintiffs allege that more

24
10Moreover, it is the government’s burden to show that consent was voluntary. See Chan25 Jimenez, 125 F.3d at 1327 (“In order to establish the validity of a consent to search, the
government bears the heavy burden of demonstrating that the consent was freely given.”). Yet 26 even though defendants have not met their burden because they did not oppose plaintiff’s
motion, the Court must still analyze plaintiffs’ claim in order to grant summary. 27
11Arrestees who were charged with crimes involving weapons, drugs or violence 28 apparently were not asked for their consent to be searched under this custom. See Deposition
of Stephanie Quock at 16:4-14. These arrestees, however, are not a part of the class here.

17

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1 than 4,000 arrestees signed a consent to search form. Moreover, pursuant to this practice, if

2 an arrestee did not consent to a search, he would ultimately be strip searched after being

3 classified following booking. Furthermore, plaintiffs proffer evidence that force was used if

4 an arrestee refused to be strip searched. See Deposition of Suzette Humphrey at 84:10-12.

5 In other words, plaintiffs argue that arrestees did not have a choice whether to be strip

6 searched or not and therefore consent to a search could not be voluntary.

7

Yet the evidence in the record submitted by plaintiffs belies this contention. See

8 Deposition fo Eldred Oaks at 37:24-38:7 (noting that the custom included Sheriff’s deputies

9 “explaining to the individual that their charges were not strip-able” before asking them if

10 they would agree to be strip searched). Even assuming arguendo that this choice was

11 “illusory,” as plaintiffs contend, and that the arrestees would be strip searched regardless of

12 whether they consented or not, it is not clear from the record if arrestees knew this when they

13 consented to the search. If they did not know that their choice was illusory, it is not clear that

14 consent to a search under these circumstances was involuntary. Moreover, although it may

15 exist, there is no evidence currently before the Court that officers threatened the use of force

16 at the time consent was requested or that arrestees were otherwise pressured into giving

17 consent. Consequently, the Court is unwilling to draw broad conclusions from a limited

18 factual record when a fact-intensive inquiry is appropriate, particularly where even the

19 limited evidence submitted indicates that at least some searches may have been voluntary.

20 The Court cannot say that, as a matter of law, that no consent to a search could have been

21 voluntary under the circumstances. Plaintiff’s motion for summary judgment as to consent

22 searches is therefore DENIED.

23

F. Safety Cell Searches

24

Plaintiffs also challenge the Department’s policy of automatically strip searching

25 detainees on the sole basis that they have been designated for placement in a safety cell.

26 Detainees were placed in a safety cell if they fit into one of six categories:

27

1. She/he displays bizarre behavior which results in the destruction of property.

2. She/he displays bizarre behavior which reveals an intent to cause self-inflicted

28

harm.

3. She/he appears gravely disabled and less restrictive housing is unavailable.

18

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1

4. She/he appears to be a danger to self or others.

5. She/he requests to use the safety cell.

2

6. For observation only, if it is determined by direct observation that the prisoner has

ingested items that may cause injury.

3

“Safety Cell Use” I.A. From these classifications it appears that individuals were generally

4

placed in a safety cell, and therefore strip searched, if prison officials determined that the

5

individual appeared to be suffering from mental illness or was otherwise mentally unstable

6

such that there was a perceived risk that the detainee might engage in violent or self-

7

destructive conduct. Plaintiffs contend that the categories themselves do not indicate

8

whether there is individualized suspicion to suspect that an arrestee is concealing contraband,

9

and therefore seek a ruling that the policy is unconstitutional on its face.

10

The Court first notes that the law on this subject is not clearly established. Neither

11

party has found any case that discusses strip searches of pre-arraignment detainees based on

12

the determination that the individual is psychologically unstable. Of course, such detainees

13

present unique and substantial safety concerns that prison officials should be free to address,

14

in part, by ensuring that the detainees are not hiding weapons or other contraband that may be

15

used to harm themselves or others. Defendants here have presented evidence that mentally

16

unstable detainees in San Francisco’s jail system have hidden contraband and have used such

17

contraband in attempts to harm themselves or others. These findings are even more serious

18

in light of the Eighth Amendment obligations of jail managers to take reasonable precautions

19

to prevent prisoner suicide. See Woodward v. Correctional Medical Services, 368 F.3d 917,

20

929 (7th Cir. 2004).

21

Standing against these valid safety concerns are the fundamental privacy interests that

22

are infringed by the extreme intrusiveness of a strip search. These interests are no less

23

profound when the subject of the search is mentally disturbed. See Aiken v. Nixon, 236

24

F.Supp.2d 211, 233 (N.D.N.Y. 2002) (discussing privacy interests in the context of strip

25

searches of individuals held in a psychiatric hospital).

26

The interests at stake in safety cell searches (prison safety and prisoner privacy) are

27

therefore identical to those considered in Giles and its progeny. The Court therefore finds

28

that the Giles requirement of reasonable individualized suspicion that an arrestee is

19

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1 concealing contraband is the appropriate test for strip searches of pre-arraignment detainees

2 believed to be a danger to themselves or others. See Aiken, 236 F.Supp.2d at 233-34

3 (adopting “reasonable suspicion” standard for strip searches of individuals who voluntarily

4 admitted themselves into a psychiatric hospital). As articulated by Giles, important factors

5 include “the nature of the offense, the arrestee’s appearance and conduct, and the prior arrest

6 record.” 746 F.2d at 617. Of course, in this context, unlike the categorical searches upon

7 classification, the conduct of the arrestees is an important factor. For example, conduct

8 indicating a detainee may be mentally disturbed in a manner that may lead to unpredictable

9 and potentially harmful conduct could serve as a valid justification for a search. In addition,

10 the searches may be based on a suspicion that types of “contraband” not ordinarily believed

11 to be dangerous, such as shoelaces and other items used for self-strangulation, may be

12 hidden. Nonetheless, the basic framework articulated in Giles remains the appropriate

13 analytical procedure to evaluate these claims. That is, the mere fact of illustrating

14 characteristics of being mentally disturbed is not sufficient to justify a strip search.

15

Turning to the policy at issue, the constitutionality of a policy that requires that all

16 individuals placed in a safety cell be strip searched depends on the reasons for the safety cell

17 placement. Under Giles, if the policy requires a reasonable individualized suspicion that the

18 detainee may be concealing drugs or other dangerous contraband, then the policy should be

19 upheld. In the context of mentally unstable detainees, this Court finds that individualized

20 suspicion can be founded upon behavior or circumstances indicating that the detainee may be

21 a danger to himself or others. Such behavior gives rise to legitimately heightened concerns

22 that the detainee could be concealing “contraband” that might be used for harmful purposes,

23 and thus serves as a reasonable basis for a strip search. Moroever, to the extent that an

24 officer believes that an arrestee acting in a bizarre manner is under the influence of a

25 controlled substance, that amounts to individualized reasonable suspicion and that arrestee is

26 not a member of the class.

27

Here, some criteria identified by the policy at issue are reasonably related to this

28 security interest. These are categories 2 (“bizarre behavior” and “intent to cause self-

20

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1 inflicted harm”); 4 (“danger to self or others”); and 6 (“ingested items that may cause

2 injury”). However, the other categories do not reveal a similar level of relatedness to the

3 interest in safety. Category 1 (“bizarre behavior” and “destruction of property”), for

4 example, could be applied to an individual who has done nothing more than acted in a

5 “bizarre” fashion and caused disruption at the jail. Category 3 (“gravely disabled” and

6 “housing unavailable”) could easily be applied to a physically disabled person who for safety

7 reasons should not be placed in an ordinary cell. Similarly, there is no requirement in

8 category 5 (“requests to use the safety cell”) that an officer make an individualized

9 determination that the detainee raises safety concerns. See Aiken, 236 F.Supp.2d at 233-34

10 (concluding that individuals who voluntarily admit themselves to a psychiatric ward do not

11 surrender all privacy protections and that strip searches of such admittees must be based on

12 reasonable suspicion of concealed drugs or weapons, but not other concealed items).

13

Plaintiffs would have this Court go further and declare all of the safety cell categories

14 to be so overbroad and vague as to be unconstitutional on their face. Admittedly, none of the

15 categories are defined with objective terms that substantially constrain the individual

16 officer’s discretion. However, the process of identifying particular conduct that is indicative

17 of psychiatric disturbance which in turn signals a propensity for violent or self-destructive

18 conduct is inherently subjective and cannot be easily reduced to objective terms. For this

19 reason, officers must be given considerable latitude in making this kind of determination.

20 Thus it was reasonable for the Department to craft a policy that leaves broad discretion with

21 the individual officer.

22

However, since such discretion is to be exercised by the individual officers, the Fourth

23 Amendment analysis must focus on the factors considered by those officers. An individual

24 officer’s subjective finding that a detainee was a danger to self or others, without any facts

25 articulated in support, is not enough to end the inquiry into whether a particular search was

26 constitutional. Thus, although the Department’s policy of allowing individual officers broad

27 discretion to determine which detainees pose a danger to themselves or others is not

28 unconstitutional on its face, plaintiffs may still prevail on their section 1983 claims by

21

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1 showing that the individual officers exercised such discretion in an unconstitutional manner.

2 For example, plaintiff Miki Mangosing was placed in a safety cell and strip searched

3 pursuant to the determination that she was a danger to herself. Records indicate that she was

4 perceived to be under the influence, out of control and unable to remain in a sobering cell.

5 Whether these and other facts support the responsible officers’ conclusion that Mangosing

6 was a risk to herself is a question to be resolved by the appropriate factfinder, but it is

7 possible that the officer’s conclusion was invalid even though the category itself is

8 constitutional.

9

In summary, the Court finds that the Department’s policy of strip searching all

10 individuals placed in a safety cell, without regard for the reasons for the particular placement,

11 is unconstitutional on its face. Further, even with respect to searches conducted under the

12 policy pursuant to the determination that a detainee is a danger to self or others, that

13 determination is not enough by itself to justify a search. In such cases, where a plaintiff can

14 show that the individual officer had not conducted the search based on reasonable suspicion

15 (i.e. where the officer was unreasonable in finding that the detainee was a danger to self or

16 others) there may be liability pursuant to section 1983. Accordingly, plaintiffs motion for

17 summary judgment is GRANTED as to safety cell categories 1, 3, and 5 but DENIED as to

18 safety cell categories 2, 4, and 6.

19 III. As-Applied Challenges by Individual Plaintiffs

20

A. Plaintiffs Zern and Corneau

21

In addition to their facial attack on the Department’s policy as a whole, plaintiffs ask

22 the Court to determine that plaintiffs Jonah Zern and Marcie Corneau are members of the

23 class. Specifically, plaintiffs challenge the argument that these two individuals were arrested

24 on charges of violence.

25

Zern was charged with a violation of California Penal Code section 148.10, which

26 describes the crime of:

27

resist[ing] a peace officer in the discharge or attempt to discharge

any duty of his or her office or employment and [where the]

28

willful resistance proximately causes death or serious bodily

injury to a peace officer

22

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1 See Kennedy, 901 F.2d at 705 (referring to statutory definition in the process of determining

2 whether a particular charge is a charge of violence). Plaintiffs claim that this charge is not

3 sufficient to provide reasonable suspicion because the statute does not require that the

4 injuries to the officer result from force or violence.

5

The Ninth Circuit has held that “in some cases, the charge itself may give rise to

6 reasonable suspicion.” Kennedy, 901 F.2d at 716 (citing Thompson 885 F.2d at 1447). In

7 Thompson the Court held that the charge of grand theft auto provided reasonable suspicion

8 because that crime is “sufficiently associated with violence.” Thompson, 885 F.2d at 1447.

9 Similarly, although a violation of Penal Code section 148.10 does not necessarily involve

10 force or violence, the crime is sufficiently related to violent conduct that the charge by itself

11 justifies a strip search.

12

The same is true with respect to plaintiff Corneau. She was arrested and charged

13 pursuant to California Penal Code section 243(e), which criminalizes a battery “committed

14 against a spouse. . . .” Battery is defined under California law as “any willful and unlawful

15 use of force or violence upon the person of another.” Cal. Penal Code § 242. Once again,

16 although plaintiffs may be correct that a violation of section 243(e) does not necessarily

17 involve violence, the crime is sufficiently associated with violent criminal conduct to justify

18 a strip search.

19

Therefore, plaintiffs Zern and Corneau are not members of the class. Defendants have

20 renewed their earlier motion for summary judgment as to these plaintiffs. Because the Court

21 finds that the searches conducted on these individuals was based on reasonable suspicion, the

22 motion is GRANTED.

23

B. Plaintiffs Bull, Mangosing and Timbrook

24

The Ninth Circuit case law related to strip searches establishes that even where the

25 strip search policy is determined to be unconstitutional, a particular search may still be found

26 valid if the circumstances of the individual case created an individualized reasonable

27 suspicion. Plaintiffs contend that there is no basis for concluding that there was a reasonable

28 suspicion as to plaintiffs Mary Bull, Miki Mangosing, and Laura Timbrook. However,

23

Case 3:03-cv-01840-CRB Document 247 Filed 02/23/2006 Page 24 of 35

United States District Court
For the Northern District of California

1 plaintiffs Bull and Mangosing were each searched pursuant to the Department’s safety cell

2 policy. The Court previously noted that these types of searches are deeply grounded in the

3 particular circumstances of the search and do not lend themselves easily to a broad brush

4 approach. Moreover, there is substantial evidence in the record from which a reasonable

5 factfinder could conclude that both Bull and Mangosing were searched based on a reasonable

6 suspicion that they might harm themselves or others. For example, an initial psychological

7 report regarding Bull states that she was “completely out of touch with reality,” that “[s]he

8 murmurs and smiles to herself very inappropriately,” that “she is not responding to contact,”

9 and that she “[a]t times seems to be talking to someone invisible.” A housing report

10 regarding Mangosing states that she was “out of control.” Accepting these accounts as true

11 and viewing them in the light most favorable to defendants, it is clear that summary judgment

12 should be DENIED as to whether reasonable suspicion existed to strip search these plaintiffs.

13

However, the Court reaches a different conclusion with respect to plaintiff Timbrook.

14 The record reveals that Timbrook was arrested pursuant to warrants for displaying a false

15 identification, possession of a forged check with intent to defraud and burglary. After arrest,

16 Timbrook was classified for housing in the general jail population. Defendant has not

17 opposed the motion for summary judgment in Timbrook’s favor and the Court finds nothing

18 in the record that would support the conclusion that there was reasonable individualized

19 suspicion which supported the decision to strip search her. As such, the motion is

20 GRANTED with respect to plaintiff Timbrook.

21 IV. Qualified Immunity

22

Sheriff Michael Hennessey moves for partial summary judgment on his defense of

23 qualified immunity, claiming that the law discussed above was not sufficiently clearly

24 established at the time the policy was in effect and that he was reasonable in crafting it as he

25 did.

26

Qualified immunity protects “government officials . . . from liability for civil damages

27 insofar as their conduct does not violate clearly established statutory or constitutional rights

28 of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818

24

Case 3:03-cv-01840-CRB Document 247 Filed 02/23/2006 Page 25 of 35

United States District Court
For the Northern District of California

1 (1982). Qualified immunity operates “to ensure that before they are subjected to suit,

2 officers are on notice their conduct is unlawful.” Saucier v. Katz, 533 U.S. 194, 206 (2001).

3 In considering a claim of qualified immunity, a court must first determine whether the

4 plaintiffs have alleged the deprivation of an actual constitutional right. See id. at 201. If

5 they have, the court must then determine whether that right was clearly established at the

6 time of the violation. See id. The relevant inquiry is whether it would be clear to a

7 reasonable officer that his conduct was unlawful in the situation he confronted. Id. at 202.

8 The clearly established test is met if “‘in light of the pre-existing law the unlawfulness [is]

9 apparent.’” Galvin v. Hay, 361 F.3d 1134, 1139 (9th Cir. 2004) (quoting Hope v. Pelzer, 536

10 U.S. 730, 739 (2002)). Even if an officer’s actions violate a constitutional right, a reasonable

11 but mistaken belief that his conduct was lawful would result in the grant of qualified

12 immunity. Wilkins v. City of Oakland, 350 F.3d 949, 955 (9th Cir. 2003).

13

Here, Sheriff Hennessey is not protected by qualified immunity from a suit based on

14 his decision to create a blanket policy of strip searching all individuals classified for housing

15 in the general jail population. As discussed above, the policy did violate plaintiffs’

16 constitutional rights. Moreover, the right was clearly established: in an unbroken line of

17 precedent tracing back to 1984, the Ninth Circuit has reaffirmed the fundamental holding of

18 Giles that a strip search of a pre-arraignment detainee must be supported by reasonable

19 individualized suspicion. It was also abundantly clear after Thompson that placement in the

20 general jail population cannot “by itself cannot justify a strip search.” Thompson, 885 F.2d

21 at 1447. Given this clear precedent, the Court finds that reasonable minds could not differ as

22 to what the law required. The Sheriff’s motion is therefore DENIED as to classification

23 searches.

24

The legal landscape was far different as to safety cell strip searches. At the time the

25 policy was made there was little if any authority regarding searches of mentally ill or

26 intoxicated detainees in a jail setting. Although this Court finds that Giles provides

27 substantial guidance regarding how this question should be addressed, that precedent does

28 not necessarily compel the result reached here. Accordingly, the law regarding safety cell

25

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United States District Court
For the Northern District of California

1 searches was not clearly established and therefore Sheriff Hennessey’s motion is GRANTED

2 on this issue.

3

Sheriff Hennessey’s motion also is GRANTED with regard to the criminal history

4 category because the Court found there is no constitutional violation. The Sheriff’s motion is

5 further GRANTED with regard to probation searches, because even though the Court found

6 searches of probationers who did not consent to searches of their persons as conditions of

7 probation to be unconstitutional, the Sheriff could have reasonably thought that probationers’

8 reduced rights allowed them to be strip searched upon an arrest for a probation violation.

9 Moreover, there is no clearly established law in the Ninth Circuit to the contrary.

10

There is no clearly established law relating to searches of arrestees who were

11 transferred to or from other jurisdictions. It is reasonable–and arguably wise–for the Sheriff

12 to operate with the utmost care when arrestees arrive at County Jail No. 9 from other

13 jurisdictions because of the possibility of pre-arranged contraband smuggling. The Court is

14 particularly wary here of its “limited role” in judging the policy decisions law enforcement

15 personnel must make, and the Court further recognizes that some categorization is necessary

16 to effectively secure jails. See Kennedy, 901 F.2d at 712 (“Corrections officials possess

17 special expertise in this area and must struggle regularly to maintain security in a most

18 difficult and potentially explosive setting.”). An individual analysis may ultimately reveal

19 that many of those arrestees never intermingled with the general jail population and arrived at

20 County Jail No. 9 immediately after their arrest, but the Sheriff’s policy nevertheless was

21 reasonable in light of the absence of clearly established law and the significant responsibility

22 he possesses to protect the safety of the jails. Therefore, the Court finds that the Sheriff’s

23 motion is GRANTED as to arrestees who were transferred to or from other jurisdictions.

24

As to the remaining category–consent searches–any individual liability to the Sheriff

25 is derived only from his role as a supervisor to other officers who performed the consent

26 searches because those searches were not a part of his official policy and he did not conduct

27 any of the searches himself. A supervisor generally “is only liable for constitutional

28 violations of his subordinates if the supervisor participated in or directed the violations, or

26

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United States District Court
For the Northern District of California

1 knew of the violations and failed to act to prevent them.” Taylor v. List, 880 F.2d 1040,

2 1045 (9th Cir. 1989). Here, there is evidence in the record to support a finding that the

3 Sheriff did not know about the consent searches, and upon discovering this practice took

4 action to prevent the continued use of such searches. See Memorandum from Captain

5 Richard Dyer, February 11, 2003. Therefore, even though the Court can not determine

6 whether the consent searches were unconstitutional, the Sheriff would nevertheless not be

7 individually liable for the practice. Accordingly, the Sheriff’s motion for qualified immunity

8 with regard to the consent searches is GRANTED.

9 V. Monell Claims

10

In their answer, defendants assert the affirmative defense that “[t]he complaint fails to

11 state a federal civil rights claim against the defendants under the doctrine announced in

12 Monell v. Department of Social Services, 436 U.S. 658 (1978).” Plaintiffs move for

13 summary judgment that this defense is inapplicable.

14

In Monell, the Supreme Court held that if the “execution of a government’s policy or

15 custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to

16 represent official policy, inflicts the injury [then] the government as an entity is responsible

17 under § 1983.” Id. at 694. To establish such municipal liability, a plaintiff must satisfy four

18 conditions: “(1) that [the plaintiff] possessed a constitutional right of which he was deprived;

19 (2) that the municipality had a policy; (3) that this policy ‘amounts to deliberate indifference’

20 to the plaintiff's constitutional right; and (4) that the policy is the ‘moving force behind the

21 constitutional violation.’” Van Ort v. Estate of Stanewich, 92 F.3d 831, 835 (9th Cir. 1996)

22 (quoting Oviatt v. Pearce, 954 F.2d 1470, 1474 (9th Cir.1992) (citation omitted)).

23

It is clear that the Department’s policy requiring strip searches of all individuals

24 classified for housing creates municipal liability under Monell. Defendant has not contested

25 this was an official written policy of the CCSF. Nor is there any dispute that the policy was

26 the “moving force” behind the constitutional violations. The policy clearly required

27 individual officers to search all detainees classified for housing, without consideration of

28

27

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United States District Court
For the Northern District of California

1 individualized suspicion. The CCSF is therefore liable under Monell. As such, plaintiff’s

2 motion for summary judgment on that issue is GRANTED.

3

Furthermore, to the extent probationers were unconstitutionally strip searched,

4 defendants present no evidence to dispute that it was done pursuant to the policy. Likewise,

5 any strip searches executed pursuant to the policy relating to arrestees transferred to or from

6 other jurisdictions that are ultimately deemed unconstitutional would be motivated by the

7 policy, since defendants have presented no evidence that individual officers acted on their

8 own behalf rather than as directed by the policy. Therefore, plaintiff’s motion regarding

9 Monell liability is GRANTED as to these categories.

10

Plaintiffs acknowledge that the official written policy of the CCSF did not include

11 authorization for consent searches. Nevertheless, plaintiffs contend that the consent searches

12 were a custom or informal policy that gives rise to Monell liability. See Monell, 436 U.S. at

13 690-691 (“[L]ocal governments ... may be sued for constitutional deprivations visited

14 pursuant to governmental ‘custom’ even though such a custom has not received formal

15 approval through the body’s official decision-making channels.”). The CCSF may be liable

16 if plaintiffs’ injury results from a custom that is a “permanent and well-settled” practice.

17 Thompson, 885 F.2d at 1444. See also Gomez v. Vernon, 255 F.3d 1118, 1127 (9th Cir.

18 2001) (condoning unconstitutional acts by the failure to investigate or correct the repeated

19 violations creates a policy or custom which permits the issuance of an injunction against the

20 administrators in their official capacity). Once such a showing is made, a local government

21 may be liable for its custom “irrespective of whether official policymakers had actual

22 knowledge of the practice at issue.” Thompson, 885 F.2d at 1444.

23

Here, plaintiffs have submitted substantial evidence that it was the custom and

24 practice of the CCSF to ask all arrestees not charged with crimes involving violence, drugs or

25 weapons, to sign a form consented to be strip searched. More than 4,000 arrestees signed

26 consent forms. Moreover, a number of officers and supervisors of the City testified that

27 consent searches were the common practice at CCSF, at least until the CCSF took action to

28 end the practice by circulating a memorandum to that effect. See Feb. 11 Dyer Memo.

28

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United States District Court
For the Northern District of California

1 Therefore, the Court finds that the CCSF had a custom and practice of using consent searches

2 to strip search arrestees. Although the Court cannot make a determination as to the

3 constitutionality of the consent searches here, the CCSF would be liable under Monell for

4 such searches, if any, that were unconstitutional and were conducted from the

5 commencement of the class period until February 11, 2003, when the memo was circulated.

6

Monell liability for the safety cell strip search policy presents a close question.

7 Plaintiffs have not presented evidence that the failure of the department to provide more

8 specific restrictions on safety cell strip searches was the “moving force” behind the alleged

9 violations of the detainees’ constitutional rights. Instead, plaintiffs claim that plaintiff Mary

10 Bull was subjected to a safety cell strip search because she refused to submit to a

11 “classification” strip search. However, even accepting these allegations as true, such conduct

12 would amount to a violation of the Department’s safety cell strip search policy and therefore

13 would not create municipal liability. See Henry v. County of Shasta, 132 F.3d 512, 521 (9th

14 Cir. 1997) (suggesting that there is no Monell claim where the officers acted “in violation of

15 the orders or policies that governed their conduct”). Plaintiffs also contend that Miki

16 Mangosing was unconstitutionally strip searched after she was placed in a safety cell

17 pursuant to a finding that she was a danger to herself. However, the constitutionality of such

18 a search would depend on whether the individual officers who chose to place her in a safety

19 cell had reasonable suspicion to believe that she was carrying concealed contraband. It is

20 therefore clear that in each of these cases if the search involved was unconstitutional, the

21 proper defendant would be the individual officers who decided that the search should be

22 conducted. Under these circumstances, it is not enough that the Department left substantial

23 discretion in the hands of the individual officers making safety cell placement

24 determinations. In order for there to be municipal liability, plaintiffs must show that the

25 policy was a moving force behind the constitutional violations and that the Department’s

26 decision not to further restrict officers’ discretion to order safety cell searches amounted to

27 deliberate indifference on the part of the policymakers. Plaintiffs’ have not made such a

28 showing and therefore their motion for summary judgment on this issue is DENIED.

29

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United States District Court
For the Northern District of California

1 VI. Other Affirmative Defenses

2

Plaintiffs have also moved for summary judgment on defendants’ affirmative defenses

3 that the Sheriff is not a “person” liable under section 1983 and that the Sheriff is immune

4 from exemplary and punitive damages. Plaintiffs also ask for summary judgment with

5 respect to the affirmative defenses of estoppel, assumption of risk, and comparative

6 negligence. Defendants have not opposed any of these motions and plaintiffs have satisfied

7 their burden of proof in support of these motions; therefore, they are GRANTED.

8 VII. State Claims

9

Plaintiffs also move for summary judgment on their strip search claims under

10 California Penal Code section 4030 and the California Constitution.

11

A. Penal Code Section 4030

12

California Penal Code Section 4030 makes unlawful and provides civil liability for

13 certain classes of strip searches of pre-arraignment misdemeanor detainees. Defendants claim

14 that insofar as some members of the class were strip searched after they were declared

15 eligible for housing in the general jail population, such plaintiffs cannot state a claim for

16 relief under section 4030. The parties’ dispute in this regard centers on two portions of

17 section 4030. Subdivision (f) of the statute provides in pertinent part:

18

No person arrested and held in custody on a misdemeanor or

infraction offense, except those involving weapons, controlled

19

substances or violence . . . shall be subjected to a strip search or

visual body cavity search prior to placement in the general jail

20

population, unless a peace officer has determined there is

reasonable suspicion based on specific and articulable facts to

21

believe such person is concealing a weapon or contraband, and a

strip search will result in the discovery of the weapon or

22

contraband.

23 (emphasis added).

24

Subdivision (g) of section 4030 next provides that:

25

[N]o person arrested and held in custody on a misdemeanor or

infraction offense not involving weapons, controlled substances

26

or violence, shall be confined in the general jail population unless

all of the following are true: (i) The person is not cited and

27

released[;] (ii) The person is not released on his or her own

recognizance pursuant to Article 9 (commencing with Section

28

1318) of Chapter 1 of Title 10 of Part 2[;] (iii) The person is not

30

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United States District Court
For the Northern District of California

1

able to post bail within a reasonable time not less than three

hours.

2

Relying on several statements in the legislative history, defendants take the position

3

that these two sections, when read together, allow a strip search to be performed either if

4

there is reasonable suspicion or if the three conditions of subdivision (g) are met. For

5

example, prior to the passage of the bill that became section 4030, the legislative counsel

6

concluded that

7

[u]nder the proposed Section 4030 of the Penal Code, a person

8

may be strip searched prior to the actual placement of the person

in the general jail population, after the requirements of

9

subdivision (g) for that placement have been met, without the

need for compliance with the requirements of subdivision (f).

10

“Strip Searches--#5001” Letter to Honorable Marian Bergeson from Ben E. Dale (Feb. 27,

11

1984) available at 6 Cal. Assembly Journal 11304 (1983-84 Reg. Sess.). Statements in the

12

legislative history by the Senate, Assembly and the Governor at the time of passage adopt the

13

view of the legislative counsel, thus lending further support to defendants’ interpretation.

14

Plaintiffs respond with a citation to the later opinion of the California Attorney

15

General, which concludes that section 4030 prohibits warrantless pre-arraignment strip

16

searches absent reasonable suspicion “prior to the placement of [the detainee] in the general

17

population.” See Cal. Att’y Gen. Opinion No. 88-1201 (July 6, 1989).

18

The parties dispute arises out of the ambiguity of the phrase “prior to placement in the

19

general jail population” that is used in subdivision (f) and repeated by the Attorney General’s

20

opinion. The term “placement” in this phrase could reasonably be interpreted to refer either

21

to the physical delivery of a detainee to the “general jail” structure, or any number of points

22

in time before then, although after the subdivision (g) requirements are met. It is an accepted

23

principle of statutory interpretation that, given such ambiguity, reference to the legislative

24

history is allowed. See Day v. City of Fontana, 25 Cal.4th 268, 272 (Cal. 2001); see

25

generally Stephen Breyer, On the Uses of Legislative History in Interpreting Statutes, 65 S.

26

Cal. L. Rev. 845 (1992). Here, the legislative history confirms that “placement” under the

27

statute occurs at some time “prior to the actual placement of the person in the general jail

28

population” (emphasis added), but at some point after the three prerequisites for jail

31

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United States District Court
For the Northern District of California

1 confinement contained in subdivision (g) are met. Thus the Court finds that section 4030 is

2 not violated where a warrantless pre-arraignment strip search is performed without

3 reasonable suspicion prior to a detainee physically arriving in the general jail population.

4

This, however, does not end the inquiry. Some ambiguity remains regarding whether

5 a search may be performed on any prearraignment detainee who satisfies the three conditions

6 described in subdivision (g). Defendant claims that these three factors are sufficient to

7 justify a search under the statute. The Court rejects this view. If defendants were correct, the

8 statute would be reduced to nothing more than a three-hour waiting period for strip searches

9 of any arrestee who is not able to post bail. This is true because the nonoccurrence of the

10 events described in subdivisions (g)(1) and (g)(2) is entirely within the control of the

11 detaining officials. Nothing in the legislative history requires such a sweeping result, and the

12 clear text of the statute counsels against it. The legislative counsel’s opinion states only that

13 searches may be conducted “prior to . . . actual placement.” This reasonable statement

14 cannot be converted into the sweeping conclusion that satisfaction of the subdivision (g)

15 factors alone is both necessary and sufficient to justify a search without reasonable suspicion.

16 That view is contrary to the express intent of the statute to protect detainees’ civil rights by

17 limiting strip searches. See Cal. Penal Code § 4030(a) (“It is the intent of the Legislature in

18 enacting this section to protect the state and federal constitutional rights of the people of

19 California . . . by strictly limiting strip and body cavity searches.”). Rather than adopting this 20 radical view,12 the Court instead finds that a search without reasonable suspicion may take

21 place consistent with section 4030 after: (1) the three subdivision (g) conditions are met; and

22 (2) the circumstances demonstrate that the individual detainee is actually destined for the

23 general jail population absent some unexpected reason for release.

24

25

26

12The Court also rejects plaintiffs’ view that subdivision (g) prohibits incorporation of an

inmate into the general jail population prior to an O.R. hearing. The clear text of the statute is 27 to the contrary and requires only that the detainee “is not released on his or her own

recognizance pursuant to” Penal Code section 1318 et seq., which governs O.R. releases. This 28 language clearly requires only the nonoccurrence of an O.R. release, and creates no substantive

rights to a hearing prior to housing in the general jail population.

32

Case 3:03-cv-01840-CRB Document 247 Filed 02/23/2006 Page 33 of 35

United States District Court
For the Northern District of California

1

Here, defendants have asserted that detainees assigned for housing were not strip

2 searched until detainees were to be “dressed in” attire appropriate for the general jail

3 population. Confirming this fact, after removing their own clothes and being strip searched,

4 inmates were instructed to put on prison uniforms. Assuming these facts are true, searches

5 under these circumstances did not run afoul of section 4030. Therefore, plaintiff’s motion

6 for summary judgment as to section 4030 is DENIED.

7

B. State Law Immunities

8

Defendants next claim that the city is immune from liability under section 4030

9 because California Government Code section 844.613 provides immunity for public entities

10 from suits brought by prisoners. However, section 4030 was enacted several years after

11 section 844.6 and explicitly provides a private right of action for any detainee aggrieved by a

12 violation of the state. See Cal. Penal Code § 4030(p). Of course, there are only two classes

13 of conceivable defendants in the civil suits contemplated by this private right of action:

14 public entities making strip search policies and individual officers executing such policies.

15 Thus to find that the earlier-enacted immunity prevails over the later-enacted cause of action

16 would be to nullify at least half of the potential scope of the private cause of action.

17 However, the later statute is more specific and does not limit the suits to either of these

18 classes of defendants. The Court therefore concludes that immunity on these grounds does

19 not apply.

20

Defendants’ similar claim that Sheriff Hennessey is immune from liability under

21 California Government Code section 820.214 also fails. That statute opens with the

22 qualification that it applies “[e]xcept as otherwise provided by statute.” Cal. Gov’t Code §

23

24

13The statute states: “(a) Notwithstanding any other provision of this part, except as

provided in this section and in Sections 814, 814.2, 845.4, and 845.6, or in Title 2.1 25 (commencing with Section 3500) of Part 3 of the Penal Code, a public entity is not liable for:

. . . (2) An injury to any prisoner.” Cal. Gov’t Code § 844.6. 26

27

14The statute states: “Except as otherwise provided by statute, a public employee is not

liable for an injury resulting from his act or omission where the act or omission was the result

28 of the exercise of the discretion vested in him, whether or not such discretion be abused.” Cal.

Gov’t Code § 820.2.

33

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United States District Court
For the Northern District of California

1 820.2. As before, the more recent authorization of suit in section 4030 falls squarely within

2 the statutory exception in section 820.2. Therefore no immunity applies.

3

C. State Constitutional Claims

4

Defendants claim that plaintiffs’ cause of action brought under the California

5 Constitution’s privacy clause also fail. Defendants state that in this context the California

6 constitution’s privacy protection should be interpreted consistent with federal interpretations

7 of Fourth Amendment protection. See In re York, 9 Cal. 4th 1133, 1149 (1995). Since the

8 Court has rejected the claim that blanket strip searches of all detainees entering the general

9 jail population is consistent with the Fourth Amendment, the same argument must also be

10 rejected here. Further, defendant has cited no case in which the statutory immunity created

11 by Government Code section 844.6 was interpreted to be an available defense against a claim

12 brought under the California Constitution’s privacy clause.

13

D. Other Defenses

14

Plaintiffs also moved for summary judgment with regard to several other of plaintiffs’

15 affirmative defenses: that plaintiffs failed to satisfy claim presentment requirements; that

16 defendants are immune as public employees engaged in the execution and enforcement of

17 law under Government Code section 820.4; and that defendants are immune as third parties

18 under Government Code section 820.8. Defendants have not opposed these motions and they

19 are therefore GRANTED.

20 //

21 //

22 //

23 //

24 //

25 //

26 //

27 //

28 //

34

Case 3:03-cv-01840-CRB Document 247 Filed 02/23/2006 Page 35 of 35

United States District Court
For the Northern District of California

1

CONCLUSION

2

For the foregoing reasons, the Court rules as follows:

3 1. Plaintiffs’ motion for partial summary judgment is GRANTED IN PART and

4

DENIED IN PART.

5 2. Defendant Sheriff Hennessey’s motion for summary judgment regarding qualified

6

immunity is GRANTED IN PART and DENIED IN PART.

7 3. Defendants’ motion for summary judgment regarding plaintiffs Zern and Corneau is

8

GRANTED.

9

IT IS SO ORDERED.

10

11

12 Dated: February 23, 2006 13

CHARLES R. BREYER UNITED STATES DISTRICT JUDGE

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

G:\ CRBALL\2003\1840\order 4 re msj. wpd

35

 
 Case 3:03-cv-01840-CRB Document 55 Filed 01/12/2004 Page 1 of 20

1 LAW OFFICES OF MARK E. MERIN Mark E. Merin, SBN. 043849
2 Jeffrey I. Schwarzschild, SBN. 192086 2001 P Street, Suite 100
3 Sacramento, California 95814 Telephone: (916) 443-6911
4 Facsimile: (916) 447-8336 E-Mail: mark@markmerin.com
5 CASPER, MEADOWS & SCHWARTZ
6 Andrew Charles Schwartz, SBN 064578 2121 N California Boulevard, Suite 1020
7 Walnut Creek, CA 94596 Telephone: (925) 947-1147
8 Facsimile: (925) 947-1131 E-Mail: schwartz@cmslaw.com
9 Attorneys for Plaintiffs
10 —o0o—
11 UNITED STATES DISTRICT COURT
12 NORTHERN DISTRICT OF CALIFORNIA
13 —o0o—
14

15

MARY BULL, JONAH ZERN, LISA GIAMPAOLI, MARCY CORNEAU, ALEXIS

16

BRONSON, MICKY MANGOSING, CHARLI JOHNSON, LEIGH FLEMING, LAURA

17 TIMBROOK, and all others similarly situated,

18

Plaintiffs,

CASE NO: C 03-1840 CRB
FIRST AMENDED CLASS ACTION COMPLAINT
DEMAND FOR JURY TRIAL

19 vs.

20

CITY AND COUNTY OF SAN FRANCISCO; SAN FRANCISCO COUNTY SHERIFF’S

21

DEPARTMENT; SAN FRANCISCO COUNTY SHERIFF MICHAEL HENNESSEY, in his

22

individual and official capacity, and SAN FRANCISCO COUNTY SHERIFF’S DEPUTIES

23 DOES 1 THROUGH 150,

24

Defendants.

25 \\\

26 \\\

MARY BULL, et al. v. CITY AND COUNTY OF SAN FRANCISCO, et al.

Page 1 of 20 FIRST AMENDED COMPLAINT

USDC, Northern District, Case No. C 03-1840 CRB

Case 3:03-cv-01840-CRB Document 55 Filed 01/12/2004 Page 2 of 20

1 PLAINTIFFS ALLEGE:

2

INTRODUCTION

3

This is an action for declaratory and injunctive relief, damages, and punitive damages against

4 the CITY AND COUNTY OF SAN FRANCISCO, its SHERIFF, MICHAEL HENNESSEY,

5 SHERIFF’S DEPARTMENT, and SHERIFF DEPUTIES sued herein by their fictitious names for

6 violations of plaintiffs’ constitutional rights resulting from application of the city and county of San

7 Francisco’s and the Sheriff’s policies, practices, and customs concerning the use of strip searches,

8 visual body cavity searches and “cold rooms” in the San Francisco County Jail. Plaintiffs seek an

9 order declaring illegal defendants’ policy of subjecting detainees in their custody to strip and visual

10 body cavity searches before they are arraigned and without having any reasonable suspicion that the

11 searches will be productive of contraband.

12

Plaintiffs also seek declaratory and injunctive relief, damages, and punitive damages against

13 the defendants for the policy, practice, and custom of placing detainees, naked, in rooms referred to as

14 “cold rooms,” without any legitimate purpose, but in order to compel consent to illegal strip searches,

15 to punish persons who question illegal practices, or for other illegal purposes. These cold rooms are

16 kept bone chillingly cold, lack access to natural light and are devoid of furniture and running water.

17 The cold rooms are constantly illuminated by flourescent lighting and persons confined in them can

18 only sit or lie on the bare floor. Defendants’ use of the “cold rooms” violates Sections 1055 and 1083

19 of Title 15 of the California Code of Regulations which specify that isolation or “safe rooms” which

20 may have legitimate psychological uses cannot be used for punishment and that persons confined

21 therein must be provided with adequate bedding and clothing.

22

Defendants’ strip search, visual body cavity search, and cold room policies, practices, and

23 customs violate plaintiffs’ rights secured to them by the Fourth and Fourteenth Amendments to the

24 U.S. Constitution and entitle plaintiffs to recover damages under the Federal Civil Rights Act (42

25 U.S.C. § 1983).

26

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1

Additionally, plaintiffs include supplemental claims under California state law against

2 defendants: 1) for violation of California Penal Code § 4030 which prohibits pre-arraignment strip

3 searches of most misdemeanents and provides for minimum damages of $1,000 for each illegal search;

4 2) for wholesale violation of Sections 1055 and 1083 of Section 15 of the California Code of

5 Regulations (promulgated under the authority of California Penal Code § 6030) which describes the

6 very narrow conditions under which a cold room can be used; and, 3) for violation of the Unruh Civil

7 Rights Act (California Civil Code §§ 52 and 52.1(b)) pursuant to which each plaintiff denied a

8 statutory or state or federal Constitutional right is entitled to recover a minimum of $4,000 for each

9 violation.

10

JURISDICTION

11

1. This action is brought pursuant to 42 USC § 1983 and 1988, and the Fourth and

12 Fourteenth Amendments to the United States Constitution. Jurisdiction is founded upon 28 USC §

13 1331 and 1341(3) and (4) and the aforementioned statutory and constitutional provisions.

14

2. The court has supplemental jurisdiction over plaintiffs’ state claims under 28 USC §

15 1367(a).

16

3. The amount in controversy exceeds $10,000, excluding interest and costs.

17

PARTIES

18

4. Plaintiffs, including MARY BULL, JONAH ZERN, LISA GIAMPAOLI, MARCY

19 CORNEAU, ALEXIS BRONSON, MICKY MANGOSING, CHARLI JOHNSON, LEIGH

20 FLEMING, and LAURA TIMBROOK, and all those similarly situated, are, and at all material times

21 herein, were citizens of the United States and residents of the state of California who were arrested

22 within the period beginning three (3) years before February 10, 2003, and continuing to this date, and

23 who were subjected to strip and/or visual body cavity searches at a San Francisco County Jail

24 (hereinafter referred to as the “San Francisco Jail”), prior to being arraigned and/or without the

25 defendants first having, and recording in writing, a reasonable suspicion that the searches would be

26 productive of contraband or weapons.

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1

5. Some plaintiffs, including MARY BULL, LISA GIAMPAOLI, ALEXIS BRONSON,

2 MICKY MANGOSING, CHARLI JOHNSON and LEIGH FLEMING, were confined by defendants

3 in “cold rooms” at the San Francisco Jail to coerce compliance with illegal orders or for punishment in

4 violation of their state and federal statutory and constitutional rights.

5

6. Defendant CITY AND COUNTY OF SAN FRANCISCO SHERIFF MICHAEL

6 HENNESSEY is, and at all material times referred to herein, was the duly elected Sheriff of the city

7 and county of San Francisco, responsible for administering the Jail facilities and for making,

8 overseeing, and implementing the policies, practices, and customs challenged herein relating to the

9 operation of the San Francisco Jail. He is sued in his individual and official capacities.

10

7. Defendants SAN FRANCISCO COUNTY SHERIFF DEPUTIES sued herein by their

11 fictitious names (Does 1 through 150) are all deputies who, as part of their duties at the San Francisco

12 Jails, subjected plaintiffs to pre-arraignment strip and/or visual body cavity searches without first

13 having, and recording in writing, a reasonable suspicion that the searches would be productive of

14 contraband or weapons. Furthermore, Defendants SAN FRANCISCO COUNTY SHERIFF

15 DEPUTIES sued herein by their fictitious names (Does 1 through 150) are all deputies who, as part of

16 their duties at the San Francisco Jail, confined plaintiffs in “cold rooms” to gain compliance with

17 illegal order or to punish plaintiffs.

18

8. At all material times mentioned herein, each of the defendants was acting under the

19 color of law, to wit, under color of statutes, ordinances, regulations, policies, customs and usages of

20 the State of California, the CITY AND COUNTY OF SAN FRANCISCO and/or the SAN

21 FRANCISCO COUNTY SHERIFF .

22

9. Defendant CITY AND COUNTY OF SAN FRANCISCO is, and at all material times

23 referred to herein, was, a division of the state of California, that maintained or permitted an official

24 policy or custom or practice causing or permitting the occurrence of the types of wrongs complained

25 of herein, which wrongs damaged plaintiffs as herein alleged. Plaintiffs’ allegations against the

26 COUNTY are based on acts and omissions of the SHERIFF and his deputies and on acts and

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1 omissions of persons who are COUNTY employees, and on the COUNTY’s breach of its duty to

2 protect plaintiffs from the wrongful conduct of said persons and employees.

3

10. Defendants SAN FRANCISCO COUNTY SHERIFF’S DEPARTMENT and SAN

4 FRANCISCO COUNTY SHERIFF MICHAEL HENNESSEY, in his individual and official capacity,

5 also maintained or permitted an official policy or custom or practice causing or permitting the

6 occurrence of the types of wrongs complained of herein, which wrongs damaged plaintiffs as herein

7 alleged.

8

11. Class action plaintiffs are those similarly situated who, during the period beginning

9 three (3) years before February 10, 2003, and continuing to this date, were subjected by defendants to

10 pre-arraignment strip and/or visual body cavity searches without defendants having, and recording in

11 writing, a reasonable suspicion that the searches would be productive of contraband or weapons.

12 Some of the similarly situated plaintiffs were placed by defendants in “cold rooms,” in order to

13 compel compliance with illegal orders or as punishment and without defendants meeting the

14 requirements governing the use of such rooms.

15

FACTS

16 A. MARY BULL

17

12. On or about November 18, 2002, plaintiff MARY BULL, along with many others, was

18 arrested at a demonstration on Market Street, in San Francisco and charged with vandalism. Ms.

19 BULL was taken to the San Francisco Jail, arriving in mid-afternoon. At approximately 6:00 p.m.,

20 Ms. BULL was taken to an area to be “dressed-in.” A Sheriff’s deputy (Doe 1) prepared an inventory

21 of Ms. BULL’s clothing and directed Ms. BULL to sign three documents, one of which was a consent

22 to strip search which Ms. BULL refused to sign. Her “dress-in” was terminated, and she was returned

23 to a holding cell and held for a “classification” interview.

24

13. Three hours later, Ms. BULL was returned to a dress-in room and again directed to

25 consent to a visual body cavity search. Upon her refusal to consent to the visual body cavity search,

26 Ms. BULL was taken from the “dress-in” area, to the center of the “bull pen” where she was

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1 confronted by several officers, male and female, one of whom told her that if she did not voluntarily

2 submit to a visual body cavity search she would be thrown into a cold room, naked, for 24 hours.

3 When Ms. BULL again declined to submit to the visual body cavity search, defendants moved her into

4 the “cold room,” where she was subjected to a forcible visual body cavity search by Does 2 through 5.

5

14. During the search, a male deputy (Doe 2) entered the room and watched as Ms.

6 BULL’s clothes were pulled off, three deputies (Does 3 through 5) forced her to lie on her back,

7 naked, bent her legs towards her chest, and visually inspected her genital and rectal areas. Ms. BULL

8 was then left naked in the “cold room” and the metal door shut.

9

15. While Ms. BULL was in the “cold room,” she was shocked every few minutes by a

10 sheriff’s deputies (Does 6 through 10) smashing a baton repeatedly against the door. The smashing of

11 the baton on the unfurnished “cold room’s” metal door caused an unbearably loud, nerve-shattering

12 noise, that prevented Ms. BULL from sleeping or resting and caused her to suffer extreme anxiety and

13 emotional distress.

14

16. During her time in the “cold room,” Ms. BULL was provided with neither clothing for

15 her personal privacy nor with blankets or bedding as for a modicum of comfort. Ms. BULL is

16 informed and believes, and thereon alleges, that Defendants have a policy, practice, and custom of

17 utilizing confinement in the “cold room” as punishment for non-violent, non-suicidal, and non-

18 destructive detainees who are dubbed “non-compliant” and that such a policy, practice, and custom

19 violates the Constitution and laws of the State of California and the United States of America.

20

17. At approximately 9:00 a.m. on November 19, 2002, Ms. BULL was removed from the

21 “cold room,” issued some prison clothing, and placed in a holding cell with other detainees. She was

22 interviewed for release on her own recognizance and taken upstairs where she was again directed to

23 consent to a visual body cavity search by Doe 11. Again, Ms. BULL is informed and believes, and

24 thereon alleges, that defendants had no reasonable suspicion that a visual body cavity search would

25 result in the discovery of contraband or weapons.

26

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1

18. Ms. BULL explained to Doe 11 that the California and United States’ Constitutions

2 and the state penal code preclude such strip searches and declined to cooperate. Ms. BULL was taken

3 into another “cold room,” and again subjected to a forcible visual body cavity search by Does 11

4 through 15. Ms. BULL was left naked in the “cold room” and later assigned to a cell with

5 approximately eight bunkbeds. At about 10:00 p.m., more than 30 hours after she was arrested, Ms.

6 BULL was released on her own recognizance having never been arraigned. Defendants had no

7 reasonable suspicion that a visual body cavity search would result in the discovery of contraband or

8 weapons.

9 B. JONAH ZERN

10

19. On or about January 18, 2003, plaintiff JONAH ZERN was arrested along with others

11 at a peace rally in San Francisco. Mr. ZERN was taken to the San Francisco Jail where he held for

12 two days before being released on his own recognizance without being arraigned. Shortly after his

13 arrival at the San Francisco Jail, Mr. ZERN was taken to a curtained off area where a Sheriff’s deputy,

14 Doe 16, directed him to remove all his clothes. The Sheriff’s deputy, Doe 16, then conducted a visual

15 body cavity search of Mr. ZERN wherein Mr. ZERN had to bend over, spread his buttocks, and cough.

16 Mr. ZERN is informed and believes, and thereon alleges, that defendants had no reasonable suspicion

17 that a visual body cavity search would result in the discovery of contraband or weapons. On or about

18 January 23, 2003, the charges filed against Mr. ZERN were dismissed. Defendants had no reasonable

19 suspicion that a visual body cavity search would result in the discovery of contraband or weapons.

20 C. LISA GIAMPAOLI

21

20. On or about July 19, 2002, plaintiff LISA GIAMPAOLI was arrested because her dog

22 allegedly bit one of the young males harassing her outside of a computer/video cafe. Ms.

23 GIAMPAOLI was taken to the San Francisco County Jail where she was booked, placed in a holding

24 cell and directed to disrobe in front of a male officer. When Ms. GIAMPAOLI stated she believed she

25 had the right to have some privacy and should not be required to remove her clothes in front of a male

26 officer, she was grabbed and dragged into the cold room where male and female officers, Does 17, 18

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1 & 19, pinned her to the ground and forcibly removed her pants, shirt and underwear. Her bra was cut

2 off of her body and she was left naked in the cold room for approximately 12 hours.

3

21. During the time Ms. GIAMPAOLI was kept in the cold room, approximately every 20

4 minutes someone pounded on the door and a male officer would look in and see her naked. She had

5 only a hole in the ground to use as a toilet.

6

22. Ms. GIAMPAOLI was released the following day and no charges were ever filed

7 against her. Defendants had no reasonable suspicion that a visual body cavity search would result in

8 the discovery of contraband or weapons.

9 D. MARCY CORNEAU

10

23. On or about September 5, 2003, plaintiff MARCY CORNEAU was arrested for

11 allegedly fighting with her boyfriend. At the San Francisco County Jail where she was taken, she was

12 stripped and subjected to a visual body cavity search by Sheriff’s Deputy, Doe 20, who required her to

13 bend over and spread her buttocks for visual examination of her anus and vaginal canal. Ms.

14 CORNEAU was released two days later and all charges against her were dismissed. Defendants had

15 no reasonable suspicion that a visual body cavity search would result in the discovery of contraband or

16 weapons.

17 E. ALEXIS BRONSON

18

24. On or about August 5, 2002, plaintiff ALEXIS BRONSON was arrested in San

19 Francisco for allegedly being drunk in public and transported to San Francisco County Jail where he

20 complied with Sheriff Deputy, Doe 21's directions to strip and submit to a visual body cavity search.

21 Because he was allegedly not coughing loudly enough during the cavity search, five deputies, Does 22

22 through 26, physically dragged him to a cold room where he was placed and kept naked for 12 hours

23 with no food or water offered. Defendants had no reasonable suspicion that a visual body cavity

24 search would result in the discovery of contraband or weapons. No charges were ever filed against

25 plaintiff BRONSON.

26

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1 F. MICKY MANGOSING

2

25. On or about December 12, 2002, plaintiff MICKY MANGOSING was arrested for

3 allegedly being drunk in public and transported to the San Francisco County Jail and placed in a

4 holding cell. Because she attempted to communicate with her friend who was also arrested about the

5 whereabouts of her car keys, she was told to “shut up” by deputy Doe 27 and then forcibly removed

6 from the holding cell, thrown down onto the ground and dragged to a cold room by three deputies,

7 Does 28, 29 & 30, one of whom, defendant Doe 28, told her “take your clothes off bitch.” Her

8 clothes, including her bra and panties, were then torn off by defendants Does 28, 29 & 30 and she was

9 left in the cold room for 12 hours, naked, without food, water or toilet paper, and regularly observed

10 by a male deputy who kept looking in at her during her confinement. Defendants had no reasonable

11 suspicion that a visual body cavity search would result in the discovery of contraband or weapons.

12

26. Ms. MANGOSING was released the following day and no charges were ever filed

13 against her.

14 G. CHARLI JOHNSON

15

27. On or about August 30, 2001, plaintiff CHARLI JOHNSON was arrested allegedly for

16 public intoxication and transported to the San Francisco County Jail where she was stripped and

17 subjected to a visual body cavity search by two male deputies, Does 31 and 32. A full cavity search

18 was conducted and her tampon was removed by defendant Deputies Does 31 an 32. Ms. JOHNSON

19 was confined in a cold room, naked, for approximately 12 hours and regularly viewed by male officers

20 who looked in on her repeatedly. She was released the next day at approximately noon and no charges

21 were ever filed against her. Defendants had no reasonable suspicion that a visual body cavity search

22 would result in the discovery of contraband or weapons.

23 H. LEIGH FLEMING

24

28. On or about April 11, 2003, plaintiff LEIGH FLEMING was arrested in San Francisco

25 for allegedly disturbing the peace. She was transported to the San Francisco County Jail, subjected to

26 a visual body cavity search by deputy, defendant Doe 33, and then confined in a cold room for over

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1 five hours, naked, during which time she was rattled by loud banging on the cell door every 20

2 minutes. No charges were ever filed against Ms. FLEMING. Defendants had no reasonable suspicion

3 that a visual body cavity search would result in the discovery of contraband or weapons.

4 I. LAURA TIMBROOK

5

29. On or about January 6, 2003, plaintiff LAURA TIMBROOK was arrested in San

6 Francisco on an old warrant for writing checks with insufficient funds, and transported to the San

7 Francisco County Jail where she was subjected to visual body cavity searches, twice, by deputies Does

8 34 and 35, without reasonable suspicion that such searches would be productive of contraband or

9 weapons. Defendants had no reasonable suspicion that a visual body cavity search would result in the

10 discovery of contraband or weapons.

11

30. Within six months of her arrest, plaintiff MARY BULL filed a group government tort

12 claim for herself and for all persons similarly situated (a copy of said claim is attached hereto as

13 Exhibit A, and incorporated herein to the extent relevant by this reference). Plaintiff BULL’s group

14 claim was denied on or about April 7, 2003, allowing the filing of this Complaint.

15

31. Plaintiffs are informed and believe, and thereon allege, that defendants routinely follow

16 their policy, practice, and custom of subjecting pre-arraignment detainees, including plaintiffs, to strip

17 and visual body cavity searches without having, and recording in writing, a reasonable suspicion that

18 the search will be productive of contraband or weapons.

19

32. Plaintiffs are further informed and believe, and thereon allege, that defendants routinely

20 follow their policy, practice and custom of confining detainees, including plaintiffs, in “cold rooms” in

21 order to compel compliance with illegal orders or as punishment.

22

33. Plaintiffs are informed and believe, and thereon allege, that defendants have the ability

23 to identify all such similarly situated plaintiffs, specifically those who, while in defendants’ custody, at

24 the San Francisco Jail since February 10, 2000, were subjected to strip searches and/or visual body

25 cavity searches prior to arraignment without defendants first having, and recording, a reasonable

26 suspicion that the searches would be productive of contraband or weapons.

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1

34. Plaintiffs are further informed and believe, and thereon allege, that defendants have the

2 ability to identify all such similarly situated plaintiffs whom defendants confined in “cold rooms”

3 since February 10, 2000, as means to compel compliance with directives or as a punishment.

4

35. Defendant SHERIFF MICHAEL HENNESSEY is personally responsible for the

5 promulgation and continuation of the strip search policy, practice, and custom pursuant to which some

6 of the plaintiffs herein were subjected to the searches complained of herein.

7

36. Defendant SHERIFF MICHAEL HENNESSEY is also personally responsible for the

8 promulgation and continuation of the cold room policy, practice, and custom pursuant to which some

9 of the plaintiffs herein were confined in “cold rooms” as complained of herein.

10

37. As a result of being subjected to the searches complained of herein, each of the

11 plaintiffs suffered physical, mental, and emotional distress, invasion of privacy, and violation of due

12 process of law and state and federal statutory and constitutional rights, and is entitled to recover

13 damages according to proof, but, at a minimum, $1,000 as specified in California Penal Code §

14 4030(p) and $4,000 as specified in California Civil Code § 52 and § 52.1(b).

15

38. As a result of being placed in a “cold room” as complained of herein, each of the

16 plaintiffs suffered physical, mental, and emotional distress and violation of due process of law and

17 state and federal statutory and constitutional rights, and is entitled to recover damages according to

18 proof, but, a minimum, $4,000 as specified in California Civil Code § 52 and § 52.1(b).

19

CLASS CLAIMS

20

39. The strip and visual body cavity searches to which plaintiffs were subjected were

21 performed pursuant to policies, practices, and customs of defendants SHERIFF HENNESSEY, CITY

22 AND COUNTY OF SAN FRANCISCO SHERIFF’S DEPARTMENT, CITY AND COUNTY OF

23 SAN FRANCISCO, and the individual deputies sued herein by the fictitious names 1 through 150

24 The searches complained of herein were performed without regard to the nature of the alleged offense

25 for which plaintiffs had been arrested, without regard to whether or not plaintiffs were eligible for cite

26 and release under Penal Code § 853.6, without regard to whether or not plaintiffs were eligible for

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1 and/or were released on their own recognizance. Furthermore, the searches complained of herein were

2 performed without defendants having a reasonable belief that the plaintiffs so searched possessed

3 weapons or contraband, or that there existed facts supporting a reasonable belief that the searches

4 would produce contraband, and those facts being articulated and recorded in a supervisor-approved

5 document.

6

40. Defendants’ use of the “cold room” to compel compliance from, and/or to punish

7 plaintiffs is in violation of Sections 1055 and 1083 of Title 15 of the California Code of Regulations

8 (promulgated under the authority of California Penal Code section 6030) and the State and Federal

9 Constitutions, in that defendants confine people to “cold rooms” to punish them and/or to compel

10 compliance with directives. Furthermore, defendants’ practice of placing people in the cold room

11 naked is a violation of Section 1055, supra, and of plaintiffs’ rights to due process of law.

12

41. Plaintiffs bring this action on their own behalf and on behalf of all persons similarly

13 situated pursuant to Rule 23, Federal Rules of Civil Procedure and California Code of Civil Procedure

14 § 382.

15

42. The class is defined to include all persons who, in the period from and including

16 February 10, 2000, to the present and continuing until this matter is adjudicated and the practices

17 complained of herein cease, were arrested and subjected to a pre-arraignment strip and/or visual body

18 cavity search at the San Francisco Jail without defendants having, and recording, a reasonable

19 suspicion that the search would be productive of contraband or weapons.

20

43. The class also includes all persons during the period from and including February 10,

21 2000, to the present and continuing until this matter is adjudicated and/or the practices complained of

22 herein cease, whom defendants improperly and unjustifiably confined in a cold room at the San

23 Francisco Jail as a punishment and/or to compel compliance with a directive.

24

44. In accordance with Federal Rules of Civil Procedure, Rule 23(a), the members of the

25 class are so numerous that joinder of all members is impractical. Plaintiffs do not know the exact

26 number of class members. Plaintiffs are informed and believe, and thereupon allege, that there are

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1 more than 100 persons per day who are arrested by defendants and/or in the custody of defendants and

2 subjected to the searches complained of herein as a result of defendants’ policy, practice, and custom

3 relating to said searches. Plaintiffs are informed and believe, and thereupon allege, that defendants

4 improperly and unjustifiably confine more than 10 persons per day in cold rooms as punishment or to

5 compel compliance with directives. Plaintiffs are informed and believe, and therefore allege, that

6 there are tens of thousands of persons in the proposed class.

7

45. In accordance with Federal Rules of Civil Procedure, Rule 23(a), plaintiffs are

8 informed and believe, and thereupon allege, that there are many questions of fact common to the class

9 including, but not limited to: (1) whether defendants routinely subject all persons arrested to visual

10 body cavity searches prior to arraignment if they intend such persons to be housed in a San Francisco

11 County Jail; (2) whether persons are subjected to visual body cavity searches prior to arraignment

12 without there being any reasonable suspicion, based on specific or articulable facts, to believe any

13 particular arrestee has concealed drugs, weapons, and/or contraband in bodily cavities which could be

14 detected by means of a visual body cavity search; (3) whether the visual body cavity searches are

15 conducted in an area of privacy so that the searches cannot be observed by persons not participating in

16 the searches, or whether the visual body cavity searches are conducted in groups and/or in open areas

17 where they may be observed by persons not participating in the searches; and, (4) whether the visual

18 body cavity searches are reasonably related to defendants’ penological interest to maintain the security

19 of the jail and whether or not there are less intrusive methods for protecting any such interest.

20

46. Plaintiffs are also informed and believe, and thereupon allege, that other common

21 questions of fact concern the design, temperature, upkeep, and use of the “cold rooms,” including, but

22 not limited to: (1) whether the “cold rooms” are used to punish persons in defendants’ custody; (2)

23 whether defendants properly monitor people placed in the “cold rooms”; (3) whether defendants

24 routinely fail to provide people placed in the “cold rooms” with sufficient clothing to protect those

25 persons’ privacy; and, (4) whether defendants routinely fail to provide people confined in the “cold

26 rooms” with bedding.

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1

47. In accordance with Federal Rules of Civil Procedure, Rule 23(a), plaintiffs are

2 informed and believe, and thereupon allege, that there are many questions of law common to the class

3 including, but are not limited to: (1) whether defendants may perform visual body cavity searches on

4 persons prior to their arraignment without reasonable suspicion, based on specific or articulable facts,

5 to believe any particular inmate has concealed drugs, weapons and/or contraband which would likely

6 be discovered by a visual body cavity search; (2) whether defendants may perform visual body cavity

7 searches on persons without first reasonably relating the use of the visual body cavity search to

8 defendants’ penological interest to maintain the security of the jail and determining if there is a less

9 intrusive method to protect that interest; (3) whether visual body cavity searches may be conducted in

10 areas where the search can be observed by people not participating in the search without violating

11 plaintiffs’ State and Federal constitutional rights and the protections afforded to plaintiffs under

12 California Penal Code section 4030; and, (4) whether or not defendants’ strip search policy and

13 procedure is in accordance with the State and/or Federal Constitution.

14

48. Plaintiffs are also informed and believe, and thereupon allege, that other common

15 questions of law concern the nature, conditions, and temperature of the “cold rooms,” including, but

16 not limited to: (1) whether defendants may use the cold rooms in the San Francisco County Jails for

17 any reasons other than those stated in the Section 1055 of Title 15 of the California Code of

18 Regulations without violating plaintiffs’ State and Federal constitutional rights protected by the Fourth

19 and Fourteenth Amendments to the United States Constitution and 42 U.S.C. § 1983; (2) whether or

20 not defendants’ “cold room” policies, practices, and customs are in accordance with the Constitution

21 and laws of the State of California and/or the United States of America; and (3) whether or not

22 defendants have established and implemented written plans as directed by Section 1050 of Title 15 of

23 the California Code of Regulations (promulgated in under the authority of California Penal Code

24 section 6030).

25

49. In accordance with Federal Rules of Civil Procedure, Rule 23(a), the claims of the

26 representative plaintiffs are typical of the class. Plaintiffs were searched, prior to arraignment, without

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1 reasonable suspicion that a strip or visual body cavity search would produce drugs, weapons or

2 contraband (and without the facts supporting any such suspicion being articulated in a supervisor-

3 approved writing), and plaintiff BULL was placed in a “cold room,” without sufficient clothing to

4 protect her privacy, as punishment for her refusal to consent to a visual body cavity search.

5 Representative plaintiffs have the same interests and suffered the same type of injuries as all of the

6 class members. Plaintiffs’ claims arose because of defendants’ policy, practice, and custom of

7 subjecting arrestees to strip and/or visual body cavity searches before arraignment without having, and

8 recording in writing, a reasonable suspicion that the search would be productive of contraband or

9 weapons. Additionally, plaintiff BULL, in accordance with defendants’ policy, practice, and custom

10 was improperly and unjustifiably confined in a “cold room” as punishment after defendants used the

11 threat of such confinement unsuccessfully to coerce plaintiff to comply with their directives.

12 Plaintiffs’ claims are based upon the same legal theories as the claims of the class members. Each

13 class member suffered actual damages either as a result of being subjected to a visual body cavity

14 search and/or as a result of being improperly and unjustifiably placed and confined in a “cold room.”

15 The actual damages suffered by representative plaintiffs are similar in type and amount to the actual

16 damages suffered by each class member.

17

50. In accordance with Federal Rules of Civil Procedure, Rule 23(a), the representative

18 plaintiffs will fairly and adequately protect the class interests. Plaintiffs’ interests are consistent with

19 and not antagonistic to the interests of the class.

20

51. In accordance with Federal Rules of Civil Procedure, Rule 23(b)(1)(A), prosecutions of

21 separate actions by individual members of the class would create a risk that inconsistent or varying

22 adjudications with respect to individual members of the class would establish incompatible standards

23 of conduct for the parties opposing the class.

24

52. In accordance with Federal Rules of Civil Procedure, Rule 23(b)(1)(B), prosecutions of

25 separate actions by individual members of the class would create a risk of inconsistent adjudications

26

MARY BULL, et al. v. CITY AND COUNTY OF SAN FRANCISCO, et al.

Page 15 of 20 FIRST AMENDED COMPLAINT

USDC, Northern District, Case No. C 03-1840 CRB

Case 3:03-cv-01840-CRB Document 55 Filed 01/12/2004 Page 16 of 20

1 with respect to individual members of the class which would, as a practical matter, substantially

2 impair or impede the interests of the other members of the class to protect their interests.

3

53. In accordance with Federal Rules of Civil Procedure, Rule 23(b)(2), plaintiffs are

4 informed and believe, and thereupon allege, that defendants have acted on grounds generally

5 applicable to the class, thereby making appropriate the final injunctive or declaratory relief with

6 respect to the class as a whole.

7

54. In accordance with Federal Rules of Civil Procedure, Rule 23(b)(3), this class action is

8 superior to other available methods for the fair and equitable adjudication of the controversy between

9 the parties. Plaintiffs are informed and believe, and thereupon allege, that the interests of members of

10 the class in individually controlling the prosecution of a separate action is low, in that most class

11 members would be unable individually to prosecute any action at all. Plaintiffs are informed and

12 believe, and thereupon allege, that the amounts at stake for individuals are so small that separate suits

13 would be impracticable. Plaintiffs are informed and believe, and thereupon allege, that most members

14 of the class will not be able to find counsel to represent them. Plaintiffs are informed and believe, and

15 thereupon allege, that it is desirable to concentrate all litigation in one forum because all of the claims

16 arise in the same location; i.e., the CITY AND COUNTY OF SAN FRANCISCO. It will promote

17 judicial efficiency to resolve the common questions of law and fact in one forum, rather than in

18 multiple courts.

19

55. Plaintiffs do not know the identities of all of the class members. Plaintiffs are informed

20 and believe, and thereupon allege, that the identities of the class members may be ascertained from

21 records maintained by the CITY AND COUNTY OF SAN FRANCISCO and defendant SHERIFF

22 MICHAEL HENNESSEY and defendant CITY AND COUNTY OF SAN FRANCISCO SHERIFF’S

23 DEPARTMENT. Plaintiffs are informed and believe, and thereupon allege, that defendants’ records

24 reflect the identities, including addresses and telephone numbers, of the persons who have been held in

25 custody in the San Francisco Jails. Plaintiffs are informed and believe, and thereupon allege, that

26 records of, and maintained by defendants reflect who was subject to a strip and/or visual body cavity

MARY BULL, et al. v. CITY AND COUNTY OF SAN FRANCISCO, et al.

Page 16 of 20 FIRST AMENDED COMPLAINT

USDC, Northern District, Case No. C 03-1840 CRB

Case 3:03-cv-01840-CRB Document 55 Filed 01/12/2004 Page 17 of 20

1 search, when the search occurred, where the search occurred, whether any reasonable suspicion for the

2 search existed and was recorded in a supervisor-approved writing, when persons searched were

3 arraigned, the charges on which such persons were arrested, whether persons were confined in a “cold

4 room,” the justification recorded for placing individuals in a “cold room,” what articles of clothing

5 and/or bedding, if any, were provided to people placed in “cold rooms,” how long individuals

6 remained in a “cold room,” and what treatment they received while so confined. Plaintiffs are

7 informed and believe, and thereupon allege, that all of the foregoing information is contained in

8 defendants’ computer system and that the information necessary to identify the class members, by last

9 known addresses, and the dates and reasons for their arrests and/or release from custody, is readily

10 available from said computer system.

11

56. In accordance with Federal Rules of Civil Procedure, Rule 23(b)(3), class members

12 must be furnished with the best notice practicable under the circumstances, including individual notice

13 to all members who can be identified through reasonable effort. Plaintiffs are informed and believe,

14 and thereupon allege, that defendants’ computer records contain a last known address for class

15 members. Plaintiffs contemplate that individual notice will be given to class members at such last

16 known address by first class mail. Plaintiffs contemplate that the notice will inform class members of

17 the following:

18

i. The pendency of the class action and the issues common to the class;

19

ii. The nature of the action;

20

iii. Their right to “opt out” of the action within a given time, in which event they

21

will not be bound by a decision rendered in the class action;

22

iv. Their right, if they do not “opt out,” to be represented by their own counsel and

23

to enter an appearance in the case; otherwise they will be represented by the

24

named class plaintiffs and their counsel; and

25

26

MARY BULL, et al. v. CITY AND COUNTY OF SAN FRANCISCO, et al.

Page 17 of 20 FIRST AMENDED COMPLAINT

USDC, Northern District, Case No. C 03-1840 CRB

Case 3:03-cv-01840-CRB Document 55 Filed 01/12/2004 Page 18 of 20

1

v. Their right, if they do not “opt out,” to share in any recovery in favor of the

2

class, and conversely to be bound by any judgment on the common issues

3

adverse to the class.

4

COUNT ONE

(Violation of Fourth and Fourteenth Amendments to the U.S. Constitution

5

on behalf of Plaintiffs and all persons similarly situated)

6

57. Defendants’ policies, practices, and customs regarding the strip and visual body cavity

7 searches complained of herein violated plaintiffs’ rights under the Fourth Amendment to be free from

8 unreasonable searches and seizures, violated said plaintiffs’ rights to due process and privacy under

9 the Fourteenth Amendment, and directly and proximately damaged plaintiffs as herein alleged,

10 entitling plaintiffs to recover damages for said constitutional violations pursuant to 42 U.S.C. § 1983.

11

WHEREFORE, plaintiffs pray for relief as hereunder appears.

12

COUNT TWO

(Violation of the Fourth and Fourteenth Amendments to U.S. Constitution, 42 U.S.C. § 1983,

13

on behalf of Plaintiffs and all persons similarly situated)

14

58. Defendants’ policies, practices, and customs regarding their use of “cold rooms” as

15 complained of herein violated plaintiffs’ Fourth Amendment right to be free from unreasonable

16 searches and seizures and plaintiffs’ rights to due process under the Fourteenth Amendment, and

17 directly and proximately damaged plaintiffs as herein alleged, entitling plaintiffs to recover damages

18 for said constitutional violations pursuant to 42 U.S.C. § 1983, in addition to other damages.

19

WHEREFORE, plaintiffs pray for relief as hereunder appears.

20

COUNT THREE

(California State Unruh Civil Rights Act, Civil Code §§ 52 and 52.1,

21

on behalf of Plaintiffs and all persons similarly situated)

22

59. Defendants’ policies, practices, and customs regarding the strip and visual body cavity

23 searches complained of herein violated plaintiffs’ rights to privacy as secured by Article I, Section 1 of

24 the California Constitution and directly and proximately damaged plaintiffs as herein alleged, entitling

25 said plaintiffs to recover a minimum of $4,000 each pursuant to California Civil Code § 52.1 and § 52,

26 in addition to other damages.

MARY BULL, et al. v. CITY AND COUNTY OF SAN FRANCISCO, et al.

Page 18 of 20 FIRST AMENDED COMPLAINT

USDC, Northern District, Case No. C 03-1840 CRB

Case 3:03-cv-01840-CRB Document 55 Filed 01/12/2004 Page 19 of 20

1

WHEREFORE, plaintiffs pray for relief as hereunder appears.

2

COUNT FOUR

(Violation of California Penal Code § 4030,

3

California State Unruh Civil Rights Act, Civil Code §§ 52 and 52.1,

on behalf of Plaintiffs and all persons similarly situated)

4

5

60. Defendants’ policies, practices, and customs regarding the strip and visual body cavity

6 searches complained of herein violated rights secured to plaintiffs under California Penal Code § 4030

7 and directly and proximately damaged plaintiffs as herein alleged, entitling said plaintiffs to recover a

8 minimum of $1,000 each pursuant to California Penal Code § 4030(p), and to further minimum

9 damages of $4,000 each pursuant to California Civil Code § 52.1 and § 52, in addition to other

10 damages.

11

WHEREFORE, plaintiffs pray for relief as hereunder appears.

12

COUNT FIVE

(California State Unruh Civil Rights Act, Civil Code §§ 52 and 52.1,

13

on behalf of all plaintiffs similarly situated)

14

61. Defendants’ policies, practices, and customs regarding their use of “cold rooms” as

15 complained of herein has violated plaintiffs’ rights to due process of law and freedom from

16 unreasonable searches and seizures as secured by the California Sate Constitution, Article I, Section

17 24, and directly and proximately damaged plaintiffs as herein alleged, entitling each said plaintiff to

18 recover a minimum of $4,000 each pursuant to California Civil Code § 52.1 and § 52, in addition to

19 other damages.

20

WHEREFORE, plaintiffs pray relief as hereunder appears.

21

PRAYER FOR RELIEF

22

WHEREFORE, plaintiffs seek judgment as follows:

23

1. For declaratory and injunctive relief declaring illegal and enjoining, preliminarily and

24 permanently, defendants’ policies, practices, and customs of subjecting pre-arraignment detainees to

25 strip and visual body cavity searches without having a reasonable suspicion that such searches would

26

MARY BULL, et al. v. CITY AND COUNTY OF SAN FRANCISCO, et al.

Page 19 of 20 FIRST AMENDED COMPLAINT

USDC, Northern District, Case No. C 03-1840 CRB

Case 3:03-cv-01840-CRB Document 55 Filed 01/12/2004 Page 20 of 20

1 be productive of contraband or weapons and of using the “cold rooms” to compel compliance or to

2 punish detainees.

3

2. Certification of the action as a class action;

4

3. For compensatory, general, and special damages for each representative and for each

5 member of the class of plaintiffs, as against all defendants;

6

4. Exemplary damages as against each of the individual defendants in an amount

7 sufficient to deter and to make an example of those defendants;

8

5. In addition to compensatory and statutory damages as allowed by law, at least $4,000

9 for each plaintiff pursuant to California Civil Code § 52.1 and § 52;

10

6. Attorneys’ fees and costs under 42 U.S.C. § 1988, California Civil Code § 52(b)(3),

11 California Civil Code § 52.1(h), and California Code of Civil Procedure § 1021.5; and

12

7. The cost of this suit and such other relief as the court finds just and proper.

13 A JURY TRIAL IS HEREBY DEMANDED.

14 DATED: January 12, 2004

Respectfully submitted,

15

LAW OFFICE OF MARK E. MERIN

CASPER MEADOWS & SCHWARTZ

16

17

18

19

S:\WpWork\Strip Search Cases\SF Claim\Pleadings\Fed CA Complaint.Amended.wpd

BY: Mark E. Merin Attorney for Plaintiffs

20

21

22

23

24

25

26

MARY BULL, et al. v. CITY AND COUNTY OF SAN FRANCISCO, et al.

Page 20 of 20 FIRST AMENDED COMPLAINT

F:\WPWORK\MCNULTY\PLEADING\COMPLAIN.DOC

USDC, Northern District, Case No. C 03-1840 CRB

 
 Case 3:03-cv-01840-CRB Document 58 Filed 01/13/2004 Page 1 of 2

1

2 DENNIS J. HERRERA, State Bar #139669

City Attorney

3 JOANNE HOEPER, State Bar #114961

Chief Trial Attorney 4 INGRID M. EVANS, State Bar # 179094

DAVID B. NEWDORF, State Bar #172960 5 ROBERT A. BONTA, State Bar #202668

Deputy City Attorneys 6 Fox Plaza

1390 Market Street, Sixth Floor 7 San Francisco, California 94102-5408

Telephone: (415) 554-3884 8 Facsimile: (415) 554-3837

E-Mail: 9

ingrid.evans@sfgov.org

10 Attorneys for Defendants
11 CITY AND COUNTY OF SAN FRANCISCO, SAN FRANCISCO SHERIFF’S DEPARTMENT
12 and SAN FRANCISCO COUNTY SHERIFF MICHAEL HENNESSEY

13 UNITED STATES DISTRICT COURT

14 NORTHERN DISTRICT OF CALIFORNIA

15 MARY BULL, JONAH ZERN, and

Case No. C-03-1840 CRB (EMC)

16 all others similarly situated,

ORDER GRANTING DEFENDANTS’

17

Plaintiffs,

MOTION TO COMPEL

18

vs.

INTERROGATORY NO. 1 AND DENYING INTERROGATORY NO. 9

19 CITY AND COUNTY OF SAN

AND PRODUCTION OF DOCUMENTS NO. 5, SET ONE

FRANCISCO, SAN FRANCISCO 20 SHERIFF’S DEPARTMENT, SAN

(Docket No. 40)

FRANCISCO COUNTY SHERIFF 21 MICHAEL HENNESSEY, IN HIS
INDIVIDUAL AND OFFICIAL 22 CAPACITY, AND SAN FRANCISCO

Hearing Date: Wed., January 7, 2004

Time:

10:30 a.m.

Place:

Courtroom C, 15th Floor

Judge:

Magistrate Judge Chen

COUNTY SHERIFF’S DEPUT IES DOES 1 23 THROUGH 150,

24

Defendants.

25

26

Defendants’ motion to compel production of interrogatory responses and production of

27 documents came on regularly for hearing on Wednesday, January 07, 2004 at 10:30 a.m. in this

28

Order Granting Defs.’ MTC
US DC Case No . C03-1480 CRB (EMC)

Case 3:03-cv-01840-CRB Document 58 Filed 01/13/2004 Page 2 of 2

1

2 Court, the Honorable Magistrate Judge Edward M. Chen presiding. Deputy City Attorney Ingrid

3 Evans appeared for defendants. Mark Merin appeared for plaintiffs.

4

For good cause shown, IT IS HEREBY ORDERED that defendants’ motion to compel is

5 GRANTED as to Interrogatory No. 1, Set One. Plaintiffs Mary Bull and Jonah Zern shall respond to

6 Interrogatory No. 1 identifying all providers of medical treatment within the last ten years, the dates

7 of treatment, and the specialty of the treating practitioner. Plaintiffs’ responses are subject to a

8 protective order to be agreed upon and submitted to the Court for approval.

9

IT IS FURTHER ORDERED that defendants’ motion to compel is DENIED as to

10 Interrogatory No. 9, Set One and Request for Production of Documents No. 5, Set One. 11

12

IT IS SO ORDERED.

13

14 Dated: January 13, 2004
15 16 17

/s/ HON. EDWARD M. CHEN U.S. Magistrate Judge

18

19 APPROVED AS TO FORM:
20
21 /s/

22 Mark Merin, Esq. Attorney for Plaintiffs
23

24

25

26

27

28

Order Granting Defs.’ MTC
US DC Case No . C03-1480 CRB (EMC)

2

 
 Case 3:03-cv-01840-CRB Document 146 Filed 04/15/2004 Page 1 of 2

United States District Court
For the Northern District of California

1

2

3

4

5

UNITED STATES DISTRICT COURT

6

NORTHERN DISTRICT OF CALIFORNIA

7

8 MARY BULL, et al.,

No. C-03-1840 CRB (EMC)

9

Plaintiffs,

10

v.

11 CITY AND COUNTY OF SAN FRANCISCO, et al.,
12 Defendants.
13 ___________________________________/

ORDER GRANTING PLAINTIFFS’ MOTION TO COMPEL RESPONSES TO INTERROGATORIES (Docket No. 79)

14

15

Having reviewed the parties’ briefs and accompanying submissions and having considered

16 the arguments of counsel, and good cause appearing therefor, the Court hereby GRANTS Plaintiffs’

17 motion to compel responses to interrogatories.

18

1. Defendants shall provide a response to Interrogatories Nos. 9 and 10 by 3:00 p.m.,

19 April 30, 2004.

20

2. Plaintiffs have withdrawn their motion with respect to Interrogatory No. 12 as

21 Defendants have provided a sufficient response.

22

3. Plaintiffs shall be permitted to rephrase Interrogatory No. 16 and Defendants shall

23 provide a response to the rephrased interrogatory within a week of service.

24

4. Regarding Interrogatory No. 23, Defendants has one of two options. Either

25 Defendants shall produce the necessary documents to Plaintiffs so that Plaintiffs may ascertain the

26 information requested by the interrogatory, or Defendants shall provide a response to the

27 interrogatory themselves. If Defendants opt for the former, the documents shall not be redacted but

28 shall be subject to a mutually agreeable protective order; the order shall provide the documents are

Case 3:03-cv-01840-CRB Document 146 Filed 04/15/2004 Page 2 of 2

United States District Court
For the Northern District of California

1 for attorneys’ eyes only and that the third parties shall not be contacted absent court order. The

2 documents shall be provided to Plaintiffs by April 23, 2004. If Defendants opt for the latter, they

3 shall provide the interrogatory response by 3:00 p.m., April 30, 2004.

4

5. Regarding Interrogatory No. 28, Defendants shall provide a declaration to Plaintiffs,

5 stating, e.g., that, after a reasonably diligent search, they have determined that the authorizations for

6 a certain period of time do not exist and that they have no basis for providing a response regarding

7 denials of authorizations because there are no records for denials and witnesses cannot reconstruct 8 the information.1 The declaration shall be provided to Plaintiffs by April 21, 2004.

9

6. Defendants shall supplement their response to Interrogatory No. 49 by April 21, 2004.

10 If Defendants cannot provide more specifics, e.g., where specifically the instruction sheet was posted

11 at CJ1, then Defendants shall provide Plaintiffs with a declaration stating that, after a reasonably

12 diligent search, they were not able to obtain any further information requested.

13

14

IT IS SO ORDERED.

15

16 Dated: April 15, 2004 17 18

/s/ EDWARD M. CHEN United States Magistrate Judge

19

20

21

22

23

24

25

26

27

1 Given the statute of limitations, the declaration need only address authorizations and denials

with respect to the time period of 2002 to the present. If the statute of limitations period is at some point 28 in the future changed, then Plaintiffs may ask the Court to revisit this issue.

2

 
 Case3:03-cv-01840-CRB Document377 Filed04/19/12 Page1 of 7

1 Mark E. Merin (State Bar No. 043849)

Cathleen A. Williams (State Bar No. 068029)

2 LAW OFFICE OF MARK E. MERIN

1010 F Street, Suite 300

3 Sacramento, California 95814

Telephone: (916) 443-6911

4 Facsimile: (916) 447-8336

E-Mail:

mark@markmerin.com

5

cathleen@markm

erin.com

6 Andrew C. Schwartz (State Bar No. 064578)

CASPER, MEADOWS, SCHWARTZ & COOK

7 2121 N. California Blvd., Suite 1020

Walnut Creek, California 94596

8 Telephone: (925) 947-1147

Facsimile: (925) 947-1131

9 E-Mail:

schwartz@cmslaw.com

10 Attorneys for Plaintiffs

11 DENNIS J. HERRERA, State Bar #139669

City Attorney

12 JOANNE HOEPER, State Bar #114961

13

Chief Trial Attorney ROBERT A. BONTA, State Bar #202668

14 Deputy City Attorneys Fox Plaza

15 1390 Market Street, Sixth Floor

San Francisco, California 94102-5408 16 Telephone: (415) 554-4268

17

Facsimile: E-Mail:

(415) 554-3837 robert.bonta@sfgov.org

18 Attorneys for Defendants
19

20

UNITED STATES DISTRICT COURT

21

NORTHERN DISTRICT OF CALIFORNIA

22 MARY BULL, et al.,
23 Plaintiffs,
24 vs.
25 CITY AND COUNTY OF SAN FRANCISCO, et al.,
26 Defendants.
27

Case No. C 03-1840 CRB

JOINT STATUS CONFERENCE REPORT

DATE: TIME: CTRM: JUDGE:

April 20, 2012 8:30 a.m. 6, 17th Floor Hon. Charles R. Breyer

28

1
JOINT STATUS CONFERENCE REPORT Mary Bull, et al. vs. City & County of San Francisco, et al.; USDC, Northern District of California, Case No. C 03-1840 CRB

Case3:03-cv-01840-CRB Document377 Filed04/19/12 Page2 of 7

1 On July 5, 2011, the Court issued its Minute Order granting Defendants’ Motion to Stay all
2 3 proceedings1 in this case pending the issuance of the United States Supreme Court’s decision in Florence
4 v. Board of Chosen Freeholders of County of Burlington, et al. On April 2, 2012, the Supreme Court

5 issued its Florence decision and, on April 10, 2012, this Court scheduled a status conference in the

6 above-captioned matter for 8:30 a.m. on April 20, 2012. Although no status conference report was
7 ordered filed, the parties have conferred and elected to file this joint status conference report in an effort 8
to assist the court, albeit the day before the scheduled conference. 9
10 I. STATUS OF THE CASE AT THE TIME OF THE STAY

11

At the time the Court ordered all proceedings in this matter stayed, pending decision of the

12 Supreme Court in Florence, the Court had before it Plaintiffs’ Amended Motion to Redefine the Certified

13 Class2, then set for hearing on July 29, 2011. No opposition had been filed prior to the court’s stay of all
14 proceedings.
15 Plaintiffs’ Amended Motion to Redefine the Certified Class proposed the following redefined
16
17 classes:

18

The class is redefined to include all persons in the previously

certified class who, in the period from and including April 23, 2001, to on

19

or about January 21, 2104 [sic], were arrested and subjected to pre-

arraignment strip and/or visual body cavity search at the San Francisco Jail,

20

in the following subclasses (hereinafter referred to as newly defined

classes):

21 (a) (Class One) detainees in defendants’ custody who are members of the

22

previously certified class subjected to second strip and visual body cavity

searches upon their initial arrival in their housing units, prior to being

23

24 1 In view of the impending relocation of one of the representative plaintiffs, Sister Bernie Galvin, the court permitted the parties to take her deposition to preserve her testimony for trial in the event she were
25 unavailable. That deposition was taken on August 12, 2011.

26 2 Plaintiffs had initially moved to redefine the certified class on October 8, 2010, following the Ninth Circuit’s en banc decision on Defendants’ interlocutory appeal of this Court’s denial of Defendant
27 Hennessey’s Motion for Qualified Immunity for his decision to create a blanket policy of strip searching 28 all individuals classified for housing.

2
JOINT STATUS CONFERENCE REPORT Mary Bull, et al. vs. City & County of San Francisco, et al.; USDC, Northern District of California, Case No. C 03-1840 CRB

Case3:03-cv-01840-CRB Document377 Filed04/19/12 Page3 of 7

1

intermingled with the general population, after they have already been strip

searched at County Jail 9: there is no rational penological purpose for such

2

successive strip searches in the absence of reasonable suspicion;

3

(b) (Class Two) detainees in their custody who are members of the

previously certified class who were subjected to strip searches without

4

reasonable suspicion at County Jail 9 without being classified for housing

in the general population: there is no rational penological purpose for such

5

strip searches in the absence of reasonable suspicion;

6 7 8 9 10 11 12 13 14 II. 15

(c) (Class Three) misdemeanor detainees in their custody, who are members of the previously certified class, eligible for the protection of California Penal Code Section 4030, who were subjected to strip searches in violation of Penal Code Section 4030(f), which provides that “no person shall be subjected to a strip search or visual body cavity search prior to placement in the general jail population, unless a peace officer has determined there is reasonable suspicion based upon specific and articulable facts to believe such person is concealing a weapon or contraband, and a strip search will result in the discovery of the weapon or contraband. No strip search or visual body cavity search or both may be conducted without the prior written authorization of the supervising officer on duty. The authorization shall include the specific and articulable facts and circumstances upon which the reasonable suspicion determination was made by the supervisor.”
FLORENCE DECISION
Before the Court issued its Order staying all proceedings in this matter, the parties, in their

16 memoranda supporting and opposing the requested stay, had stated their respective understandings of the

17 issues likely to be decided by the Supreme Court. Defendants observed that the Supreme Court would
18 address “Whether the Fourth Amendment permits a jail to conduct a suspicionless strip search of every 19
individual arrested for any minor offense no matter what the circumstances.” (Defendants’ Memorandum 20
of Points and Authorities in Support of Motion to Stay Proceedings, Doc. # 370, p. 3., citing Question 21 22 Presented upon which U.S. Supreme Court granted certiorari in Albert W. Florence v. Board of Chosen
23 Freeholders of the County of Burlington, et al., No. 10-945 (emphasis added)). Defendants further

24 stated that "The Florence case presents legal issues that are directly relevant to the Bull case, including

25 (1) the constitutionality of suspicionless strip searches of pre-trial detainees arrested for minor offenses
26 under any circumstances and (2) the constitutionality of second strip searches following a detainee's 27
movement from one jail facility to another (which issue plaintiffs in Bull have made a major component 28

3
JOINT STATUS CONFERENCE REPORT Mary Bull, et al. vs. City & County of San Francisco, et al.; USDC, Northern District of California, Case No. C 03-1840 CRB

Case3:03-cv-01840-CRB Document377 Filed04/19/12 Page4 of 7

1 of their remaining case). Id. at 3. Plaintiffs stated that the Supreme Court, if it confined itself to the

2 question decided below in Florence, would only address “the constitutionality of strip searches upon

3 admission to the general population” (Plaintiffs’ Memorandum of Points and Authorities in Opposition to
4 Defendants’ Motion for Stay, Doc.# 373, p. 3.)
5

6 III. PLAINTIFFS’ POSITION

7

While the full import of the Supreme Court’s decision in Florence is subject to debate, Justice

8 Kennedy, writing for the Court3, explicitly noted that “This case does not require the Court to rule on the
9 types of searches that would be reasonable in instances where, for example, a detainee will be held 10
without assignment to the general jail population and without substantial contact with other detainees.” 11
Furthermore, Justice Kennedy wrote, “The circumstances before the Court, however, do not present the 12 13 opportunity to consider a narrow exception of the sort Justice Alito describes, post, at 2-3 (concurring
14 opinion), which might restrict whether an arrestee whose detention has not yet been reviewed by a

15 magistrate or other judicial officer, and who can be held in available facilities removed from the general

16 population, may be subjected to the types of searches at issue here.” (566 U.S. ___ (2012), pps 18 and 19
17 of the slip opinion.)
18 Justice Alito in his concurring opinion, made clear that “The Court holds that jail administrators
19 20 may require all arrestees who are committed to the general population of a jail to undergo visual strip
21 searches not involving physical contact by corrections officers.”4 In that section of his concurring

22 opinion referred to by Justice Kennedy, Justice Alito stated:

23

It is important to note, however, that the Court does not hold that it is always reasonable to

24

conduct a full strip search of an arrestee whose detention has not been reviewed by a

25 3 Except as to Part IV of the opinion which Justice Thomas did not join.
26 4 Justice Alito noted that Florence was detained “not for a minor traffic offense but instead pursuant to a
27 warrant for his arrest, and that there was apparently no alternative, if Florence were to be detained, to 28 holding him in the general jail population.”

4
JOINT STATUS CONFERENCE REPORT Mary Bull, et al. vs. City & County of San Francisco, et al.; USDC, Northern District of California, Case No. C 03-1840 CRB

Case3:03-cv-01840-CRB Document377 Filed04/19/12 Page5 of 7

1

judicial officer and who could be held in available facilities apart from the general

population. Most of those arrested for minor offenses are not dangerous, and most are

2

released from custody prior to or at the time of their initial appearance before a magistrate.

3

In some cases, the charges are dropped. In others, arrestees are released either on their own recognizance or on minimal bail. In the end, few are sentenced to incarceration. For

4

these persons, admission to the general jail population, with the concomitant humiliation

of a strip search, may not be reasonable, particularly if an alternative procedure is feasible.

5

(Alito, concurring opinion, pps 1 and 3.)

6

Justice Roberts, specifically joining Justice Alito’s concurring opinion, stated that “it is important

7 for me that the Court does not foreclose the possibility of an exception to the rule it announces.”
8 (Roberts, concurring opinion, p. 1.)
9 The dissenting opinion noted that “it remains open for the Court to consider whether it would be
10

11 reasonable to admit an arrestee for a minor offense to the general population, and to subject her to the

12 ‘humiliation of a strip search,’ prior to any review by a judicial officer.” (Dissenting opinion, p. 14.)

13

Plaintiffs believe that the Supreme Court resolved a narrow question that was not seriously in

14 dispute in this case: whether the Fourth Amendment precludes a jail from strip searching a person
15 properly placed in the jail’s general population. The Supreme Court did not sanction the strip search of
16 persons arrested on charges not involving violence, drugs or weapons, without reasonable suspicion that
17 18 such persons were concealing contraband, prior to such persons being properly placed into the general
19 population. This is the second subclass described by Plaintiffs in their Motion to Redefine the Certified

20 Class.

21

In ruling that the Fourth Amendment did not preclude the strip search of persons properly

22 admitted to the jail’s general population, the Court did not address the question of the legality of
23 repetitive, pre-arraignment strip searches, of persons properly placed into the general population. This is
24 the first subclass defined in Plaintiffs’ Motion to Redefine the Certified Class. Plaintiffs request that the
25
26 Court set a hearing date on Plaintiffs’ Amended Motion to Redefine the Class to resolve these remaining

27 issues.

28

Plaintiffs’ Complaint in this case alleged that the blanket pre-arraignment strip search of persons

5
JOINT STATUS CONFERENCE REPORT Mary Bull, et al. vs. City & County of San Francisco, et al.; USDC, Northern District of California, Case No. C 03-1840 CRB

Case3:03-cv-01840-CRB Document377 Filed04/19/12 Page6 of 7

1 charged with crimes not involving violence, drugs, or weapons, without reasonable suspicion that such

2 persons were concealing contraband, violated their Fourth Amendment right to be free from
3 unreasonable searches and seizures. While the Ninth Circuit’s en banc decision approved of the 4
Defendants’ policy of subjecting all persons going into the general population to strip searches, 5
regardless of the charges on which they were arrested or the lack of reasonable suspicion to believe they 6 7 were concealing contraband, and despite their not having first appeared before a judicial officer for
8 arraignment, bail setting, or consideration of a request for release on his/her own recognizance, in view

9 of the Supreme Court’s reservation of this question for future decision, Plaintiffs’ believe that once

10 judgment is entered in this case, this issue will be ripe for reconsideration in light of the Supreme Court’s
11 Florence decision and, should it again be decided adversely to Plaintiffs, for presentation to the Supreme 12
Court through a Petition for Writ of Certioriari. 13
14 IV. DEFENDANTS’ POSITION

15

Without at this time providing a full analysis of the Florence decision and its impact on the

16 instant litigation, defendants believe that the Florence decision leaves fully intact the Ninth Circuit's
17 decision in Bull and, moreover, announced important standards, principles and rationale that affirm 18
defendants' position in this case. For example, the Florence court: (1) adopted the Turner v. Safley¸482 19
U.S. 78 (1987) standard (a regulation impinging on an inmate's constitutional rights must be upheld "if it 20 21 is reasonably related to legitimate penological interests"); (2) reaffirmed Bell v. Wolfish, 441 U.S. 520
22 (1979); (3) reaffirmed the importance of providing deference to correctional officials; (4) found that "the

23 seriousness of an offense is a poor predictor of who has contraband," 566 U.S. ___ (2012), p. 14 of the

24 slip opinion; and (5) provided guidance that will impact plaintiffs' proposed second strip search class.
25 The Florence decision will provide important guidance for the remainder of the instant litigation. 26
Defendants' position on how best to proceed in this case is to first identify a hearing date for 27
Plaintiffs' Amended Motion to Redefine the Certified Class that is approximately sixty (60) days out or 28

6
JOINT STATUS CONFERENCE REPORT Mary Bull, et al. vs. City & County of San Francisco, et al.; USDC, Northern District of California, Case No. C 03-1840 CRB

Case3:03-cv-01840-CRB Document377 Filed04/19/12 Page7 of 7

1 so. Following the hearing and the Court's ruling on Plaintiffs' Amended Motion to Redefine the Certified

2 Class, defendants plan to bring one or more motions for summary judgment. Defendants believe that this

3 is the best way to narrow and define precisely what is currently left in the case.

4

5 V. POSSIBLE RESOLUTION THROUGH MEDIATION

6

In telephone conversations counsel for the parties discussed the possibility of participating in

7 mediation and the possibility of utilizing retired U.S. District Court Judge Raul Ramirez or Magistrate

8 Judge Joseph C. Spero as a mediator. The parties will be prepared to discuss their positions on this issue

9 at the status conference. 10 11 DATED: April 19, 2012

Respectfully Submitted,

12

LAW OFFICE OF MARK E. MERIN and

CASPER, MEADOWS, SCHWARTZ & COOK

13

14 15 16 17 DATED: April 19, 2012

/s/ “Mark E. Merin” By:
Mark E. Merin Attorneys for Plaintiffs
Respectfully Submitted,

18

DENNIS

JOANNE

19

ROBE

20

21

22

23

J. HERRERA, City Attorney HOEPER, Chief Trial Attorney RT A. BONTA, Deputy City Attorney
/s/ “Robert A. Bonta” By:
Robert A. Bonta Attorneys for Defendants

24

25

26

27

28

7
JOINT STATUS CONFERENCE REPORT Mary Bull, et al. vs. City & County of San Francisco, et al.; USDC, Northern District of California, Case No. C 03-1840 CRB

 
 Case3:03-cv-01840-CRB Document391-2 Filed03/20/13 Page1 of 7

SETTLEMENT AGREEMENT & FULL AND FINAL RELEASE
Case Name: Mary Bull, Jonah Zern, Lisa Giampaoli, Marcy Corneau, Alexis Bronson, Micky Mangosing, Leigh Fleming, Laura Timbrook, And All Others Similarly Situated V. City And County Of San Francisco, San Francisco Sheriff's Department, San Francisco County Sheriff Michael Hennessey, In His Individual And Official Capacity, And San Francisco County Sheriff's Deputies Does 1 Through 150
Case No.: C03-1840 CRB (EMC)
This Settlement Agreement and Full and Final Release ("SETTLEMENT AGREEMENT") is made and entered into by and between Plaintiffs Mary Bull, Lisa Giampaoli, Alexis Bronson, Micky Mangosing, Leigh Fleming, Laura Timbrook, J. Quechan Allen, Diana Smith, Michele De Ranleau, Michael Marron, Steve Noh, Sister Bernie Galvin, and Brian Vowell (hereinafter, the "INDIVIDUAL PLAINTIFFS") on the one hand, and Defendants City and County of San Francisco, San Francisco Sheriff's Department, San Francisco County Sheriff Michael Hennessey, in his individual and official capacity, and San Francisco County Sheriff's Deputies does 1 through 150 (hereinafter, the "DEFENDANTS") on the other hand.
WHEREAS, the INDIVIDUAL PLAINTIFFS have asserted individual claims against DEFENDANTS;
WHEREAS, the INDIVIDUAL PLAINTIFFS have also asserted claims on behalf of a class;
WHEREAS, the federal district court has certified a class defined as "All persons who, during the applicable period of limitations, and continuing to date [from April 23, 2002 to January 23, 2004], 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 strip search by defendants before arraignment at a San Francisco County jail facility without any reasonable suspicion that they were concealing contraband. This class also includes 1) all arrestees who were subjected to subsequent blanket strip search(es) before arraignment after the initial strip search, without any reasonable suspicion; 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" (hereinafter, the "CLASS");
WHEREAS, claims asserted on behalf of absent class members are hereinafter referred to as "CLASS CLAIMS"; and
WHEREAS, the INDIVIDUAL PLAINTIFFS and the CLASS are represented by Mark E. Merin, the Law Offices of Mark E. Merin, Andrew Charles Schwartz, and Casper, Meadows & Schwartz (hereinafter, "PLAINTIFFS' COUNSEL").
NOW, THEREFORE, FOR GOOD AND VALUABLE CONSIDERATION, in the amount of $450,000 (Four-Hundred Fifty-Thousand and 00/100 Dollars) plus the cost of sending notice to the CLASS (estimated at $10,000 to $20,000) (Ten-Thousand to Twenty-Thousand and 00/100 Dollars) (the "SETTLEMENT AMOUNT"), the sufficiency of which is hereby admitted and acknowledged, the INDIVIDUAL PLAINTIFFS, individually and on behalf of their heirs, domestic partners, spouses, executors, attorneys, administrators, assigns, and successors, if any, and PLAINTIFFS' COUNSEL, individually and on behalf of their current and former predecessors, successors, partners (both general and limited), affiliates, each of its current and former directors, officers and employees, corporations, partnerships, heirs, domestic partners, spouses, executors, administrators, assigns, and successors, if any (hereinafter referred to

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Case3:03-cv-01840-CRB Document391-2 Filed03/20/13 Page2 of 7

individually and collectively as "RELEASORS"), hereby agree to fully and forever release and discharge the City and County of San Francisco, together with its elective and/or appointive boards, agents, servants, employees, attorneys, consultants, departments, commissioners, officials, officers, assigns and successors (hereinafter referred to individually and collectively as "SAN FRANCISCO"), from any and all claims, actions, causes of action, liabilities, damages, demands, attorneys' fees, expenses and costs (including without limitation court costs) of any kind or nature whatsoever, whether known or unknown, suspected or unsuspected, which have existed or may have existed, or which do exist, or which hereafter shall or may exist, and which (1) are alleged or set forth or attempted to be set forth in the pleadings on file in that certain action entitled "Mary Bull, et al. vs. City and County of San Francisco, et al.," being Action No. C03-1840 CRB (EMC) on the records of the United States District Court for the Northern District of California (hereinafter referred to as the "ACTION"), (2) arise out of or are in any way related to any of the transactions, occurrences, acts or omissions set forth or alleged in any of the pleadings in the ACTION, or (3) arise out of or relate to any arrest, search or seizure of any individual plaintiff by SAN FRANCISCO at any time prior to the date of this SETTLEMENT AGREEMENT, including but not limited to during the pendency of the ACTION. (hereinafter referred to collectively as the "INDIVIDUAL CLAIMS").
PLAINTIFFS' COUNSEL hereby waives any rights they may have to costs or attorney's fees in the action entitled Flick v. City and County of San Francisco, being Action No. C03-4022 CRB on the records of the United States District Court for the Northern District of California.
RELEASORS and SAN FRANCISCO each understand that this settlement is subject to approval of all appropriate departments, boards, agencies, and commissions of the City and County of San Francisco, including, but not limited to, the San Francisco Board of Supervisors. Within fifteen (15) days of approval of the settlement by all appropriate departments, boards, agencies and commissions of the City and County of San Francisco, RELEASORS shall move the District Court for dismissal of the CLASS CLAIMS in the ACTION without prejudice and for approval of the settlement. RELEASORS and SAN FRANCISCO agree to use their best efforts to obtain dismissal of the CLASS CLAIMS in the ACTION without prejudice and to obtain approval of this settlement and entry of the orders contemplated herein, and shall do nothing inconsistent herewith.
RELEASORS and SAN FRANCISCO each understand that this settlement is contingent upon the District Court's dismissal of the CLASS CLAIMS in the ACTION without prejudice and the District Court's approval of the settlement.
On June 10, 2004, the district court in the ACTION granted the INDIVIDUAL PLAINTIFFS' motion to certify a class under Rule 23(b)(3) and defined the class as:
All persons who, during the applicable period of limitations, and continuing to date [from April 23, 2002 to January 23, 2004], 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 strip search by defendants before arraignment at a San Francisco County jail facility without any reasonable suspicion that they were concealing contraband. This class also includes 1) all

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Case3:03-cv-01840-CRB Document391-2 Filed03/20/13 Page3 of 7

arrestees who were subjected to subsequent blanket strip search(es) before arraignment after the initial strip search, without any reasonable suspicion; 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.
If required by the District Court, SAN FRANCISCO shall provide notice to members of the CLASS, informing them that the CLASS CLAIMS in the ACTION have been dismissed without prejudice and that the statute of limitations on their claims, if any, will begin to run again. The cost of notice is estimated to be $10,000 to $20,000. Subject to the District Court's approval, the parties agree that the notice attached hereto as Exhibit A (the "NOTICE") is sufficient and appropriate. SAN FRANCISCO will seek to identify a correct current address for members of the CLASS via a social security number search, an Equifax search, or a Lexis/Nexis search, and will send the NOTICE to any subsequently-obtained address. RELEASORS and SAN FRANCISCO agree that the individual mailing of the NOTICES by first class United States mail to the last updated address of the members of the CLASS is sufficient to satisfy the requirements of due process and the notice requirements under law.
Within five (5) days of the District's Court's dismissal of the CLASS CLAIMS in the ACTION without prejudice, the District Court's approval of the settlement, and the sending of the NOTICES to CLASS members by SAN FRANCISCO, RELEASORS shall file a request for dismissal with prejudice of all remaining INDIVIDUAL CLAIMS in the ACTION.
Within thirty (30) business days after the ACTION has been dismissed with prejudice, SAN FRANCISCO shall pay the SETTLEMENT AMOUNT to RELEASORS. Payment by SAN FRANCISCO is contingent upon the delivery of a fully executed W-9, with a valid federal tax identification number, by RELEASORS to counsel for SAN FRANCISCO. SAN FRANCISCO'S payment to RELEASORS shall made by check payable to Law Offices of Mark Merin Trust Account.
RELEASORS represent and warrant that they have not assigned or transferred, or agreed to assign or transfer, or attempted to assign or transfer, to any third party or entity (including without limitation any insurer) any interest in any of the INDIVIDUAL CLAIMS. RELEASORS agree to defend, indemnify and hold harmless SAN FRANCISCO against any loss, expense or liability, including without limitation reasonable attorneys' fees, arising from any breach of the foregoing. Furthermore, in the event that SAN FRANCISCO learns that RELEASORS have breached this warranty, SAN FRANCISCO may, at its sole option, elect to rescind this Full and Final Release, in which case RELEASORS shall immediately remit to SAN FRANCISCO the SETTLEMENT AMOUNT, plus interest accruing thereon at a rate of ten (10) percent per year, compounded monthly, from the date of payment thereof.
RELEASORS represent and warrant that either (a) there are no liens, including without limitation any medical reimbursement, unemployment or disability compensation liens, in existence which may attach to the SETTLEMENT AMOUNT or to any recovery paid to RELEASORS pursuant to the ACTION, or (b) to the extent there are any such liens, RELEASORS will pay and retire all such liens out of the SETTLEMENT AMOUNT. RELEASORS agree to defend, indemnify and hold harmless SAN FRANCISCO against any and all claims by any person or entity purporting to hold any

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Case3:03-cv-01840-CRB Document391-2 Filed03/20/13 Page4 of 7

lien, interest, or other claim, whether for medical care, unemployment and/or disability compensation, attorneys' fees, or otherwise, involving RELEASORS and arising in connection with any of the INDIVIDUAL CLAIMS.
In reaching a settlement of the INDIVIDUAL CLAIMS resulting in the execution of this RELEASE, RELEASORS and SAN FRANCISCO have considered and sought to protect the interests of the Centers for Medicare and Medicaid Services ("CMS"), the federal agency that runs Medicare. RELEASORS represent and warrant that RELEASORS are either (1) not Medicare eligible pursuant to 42 U.S.C. 1395c and will not become Medicare eligible within thirty months from the date of this RELEASE, or (2) are Medicare eligible pursuant to 42 U.S.C. 1395c or will be Medicare eligible within thirty months from the date of this RELEASE, in which case (a) RELEASORS further represent and warrant that RELEASORS are not asserting and do not anticipate a need for future medical treatment arising out of or related to the INDIVIDUAL CLAIMS or (b) RELEASORS have asserted a need for future medical treatment arising out of or related to the INDIVIDUAL CLAIMS and RELEASORS will place a portion of the SETTLEMENT AMOUNT in a Medicare Set Aside ("MSA") account which RELEASORS represent and warrant will satisfy the requirements of the Medicare, Medicaid and SCHIP Extension Act of 2007 and which will be used to pay for future medical expenses arising out of or related to the INDIVIDUAL CLAIMS. RELEASORS and RELEASORS' counsel agree to defend, indemnify and hold harmless SAN FRANCISCO against any and all claims arising out of or related to the terms of this paragraph, including without limitation, any claims by CMS.
RELEASORS certify that they have read Section 1542 of the California Civil Code, which provides:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
RELEASORS hereby waive application of Section 1542 of the Civil Code. RELEASORS understand and acknowledge that, as a consequence of this waiver of Section 1542, even if RELEASORS should eventually suffer additional or further loss, damages or injury arising out of or in any way related to any of the events which gave rise to the INDIVIDUAL CLAIMS, or any of them, RELEASORS will not be permitted to make any further claims against SAN FRANCISCO to recover for such loss, damages or injury. RELEASORS acknowledge that they intend these consequences even as to claims for personal injury or property damage that may exist as of the date of this Full and Final Release but which RELEASORS do not know exist, and which, if known, would materially affect RELEASORS' decision to execute this Full and Final Release, regardless of whether RELEASORS' lack of knowledge is the result of ignorance, oversight, error, negligence, or any other cause.
RELEASORS acknowledge that, in executing this Full and Final Release, they are acting on their own, independent judgment informed by their legal counsel. RELEASORS acknowledge having read this Full and Final Release and having been advised by their attorneys as to its meaning and effect. RELEASORS acknowledge and warrant that their execution of this Full and Final Release is free and voluntary. RELEASORS further represent and warrant that, at the time they executed this Full and Final Release, they were not in the period of first physical confinement, whether as an inpatient or outpatient, in a clinic or health facility (as defined in Sections 1203 and 1250 of the Health and Safety Code) as a result of the injury alleged to have given rise to any

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Case3:03-cv-01840-CRB Document391-2 Filed03/20/13 Page5 of 7
of the INDIVIDUAL CLAIMS, and that as a result Business and Professions Code section 6152(b) cannot be used to invalidate this Full and Final Release.
RELEASORS acknowledge that this Full and Final Release contains and constitutes the entire agreement between RELEASORS and SAN FRANCISCO with respect to the INDIVIDUAL CLAIMS. The terms of this Full and Final Release are contractual and not a mere recital. RELEASORS acknowledge that SAN FRANCISCO has made no representations, express or implied, to induce RELEASORS to enter into this Full and Final Release, other than as expressly set forth herein.
No aspect of this Full and Final Release or the settlement which led to it is intended to be nor at any time shall be construed, deemed, or treated in any respect as an admission by SAN FRANCISCO of liability for any purpose. It is expressly understood by RELEASORS that this Full and Final Release does not constitute an admission of the truth or accuracy of any of the allegations made in the complaint on file in the ACTION liability for any of the INDIVIDUAL CLAIMS, and that SAN FRANCISCO expressly denies the allegations made in the complaint, as more fully set forth in the answer or other responsive pleadings on file in the ACTION.
If any of the provisions of this Full and Final Release or the application thereof is held to be invalid, its invalidity shall not affect any other provision or application of this Full and Final Release to the extent that such other provision or application can be given effect without the invalid provision or application, and to this end, the provisions of this Full and Final Release are declared and understood to be severable; provided, however, that should a court of competent jurisdiction hold that RELEASORS are entitled to sue SAN FRANCISCO upon any of the INDIVIDUAL CLAIMS, and should RELEASORS bring or join in such a suit, then RELEASORS shall immediately remit to SAN FRANCISCO the SETTLEMENT AMOUNT, plus interest thereon accruing at a rate of ten percent per year, compounded monthly, from the date of payment thereof.
RELEASORS understand and acknowledge that both RELEASORS and SAN FRANCISCO shall bear their own legal expenses, including attorney's fees, and costs incurred in connection with prosecuting or defending against the ACTION and any of the INDIVIDUAL CLAIMS.
RELEASORS and SAN FRANCSICO waive the application of any applicable law, regulation, holding or rule of construction providing that ambiguities in an agreement shall be construed against the party drafting such agreement.
This SETTLEMENT AGREEMENT and the settlement which led to it have been fully negotiated with the assistance of counsel and should not be construed more strictly against one party than another.
This SETTLEMENT AGREEMENT may be executed in two or more counterparts, all of which counterparts shall be deemed originals.

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Dated: Dated: Dated: Dated: Dated: Dated: Dated: Dated: Dated: Dated: Dated: Dated:

MARY BULL LISA GIAMPAOLI ALEXIS BRONSON MICKY MANGOSING LEIGH FLEMING LAURA TIMBROOK J. QUECHAN ALLEN
DIANA SMITH MICHELE De RANLEAU
MICHAEL MARRON STEVE NOH
SISTER BERNIE GALVIN

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Case3:03-cv-01840-CRB Document391-2 Filed03/20/13 Page7 of 7

Dated: Dated: Dated:

BRIAN VOWELL
MARK E. MERIN PLAINTIFFS' COUNSEL
ANDREW CHARLES SCHWARTZ PLAINTIFFS' COUNSEL

APPROVED AS TO FORM: Dated:
APPROVED AS TO FORM: Dated:
APPROVED AS TO FORM: Dated:

LAW OFFICES OF MARK E. MERIN 2001 P STREET, SUITE 100 SACRAMENTO, CA 95814
MARK E. MERIN Attorney for RELEASORS
CASPER, MEADOWS & SCHWARTZ 2121 N. CALIFORNIA BLVD., SUITE
1020 WALNUT CREEK, CA 94596
ANDREW CHARLES SCHWARTZ Attorney for RELEASORS
CITY ATTORNEY’S OFFICE 1390 MARKET STREET, 7TH FLOOR
SAN FRANCISCO, CA 94102
Robert Bonta Deputy City Attorney

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 Case3:03-cv-01840-CRB Document391-3 Filed03/20/13 Page1 of 2
NOTICE OF DISMISSAL WITHOUT PREJUDICE OF CLASS ACTION AGAINST THE CITY AND COUNTY OF SAN FRANCISCO, THE SAN FRANCISCO SHERIFF'S
DEPARTMENT, SAN FRANCISCO COUNTY SHERIFF MICHAEL HENNESSEY, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY, AND SAN FRANCISCO COUNTY SHERIFF'S DEPUTIES DOES 1 THROUGH 150.
PLEASE READ THIS COURT-ORDERED CLASS-ACTION NOTICE This is Not A Lawsuit Against You. You Are Not Being Sued
Were you strip searched at any San Francisco County Jail on or after April 22, 2002 and on or before January 23, 2004, following your arrest 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/or subjected to a subsequent strip search(es) before arraignment after the initial strip search, and/or subjected to a strip search(es) prior to your placement in a 'safety cell.'?
If any of these things happened to you and you did not already timely choose to be excluded from the class action (opt out) by giving notice of your decision in accordance with directions provided in a prior class notice, specifically, by mailing a letter which had to have been postmarked on or before January 16, 2005 requesting exclusion from the class, then you were previously included as a plaintiff in a class action to recover damages.
The class action that you were a part of is now being dismissed in its entirety without prejudice. The statute of limitations on your claims, if any, based on your strip search as described above that was tolled—or put on hold—during the pendency of this lawsuit will start running again and may bar any claims you may wish to pursue unless you bring your own individual lawsuit in a timely manner. If you wish to pursue any of those claims, you should consult an attorney.
WHAT IS THIS CASE ABOUT? Eight plaintiffs brought an action in Federal Court against the City and County of San Francisco, the San Francisco Sheriff’s Department, San Francisco County Sheriff Michael Hennessey and others and alleged that Sheriff’s Deputies, pursuant to policies, customs and practices of the Sheriff’s Department and the Sheriff illegally strip searched individuals arrested on charges 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), even when those Deputies lacked the individualized suspicion that such arrestees were carrying contraband that would be discovered during a strip search. Plaintiffs also alleged that some arrestees were subjected to additional strip searches prior to arraignment even though no individualized suspicion existed that such arrestees were carrying contraband. Plaintiffs also alleged that all arrestees placed in “safety cells” were strip searched also without individualized suspicion that they possessed contraband. Plaintiffs alleged that these searches violated the rights of the individual plaintiffs and class members protected by the United States Constitution and by California law. Defendants deny that the strip searches violated the constitutional or statutory rights of the plaintiffs or members of the class. After a hearing on June 10, 2004, the Federal District Court issued an order certifying this case as a class action. On February 9, 2010, the United States Court of Appeals for the Ninth Circuit ruled that San Francisco’s policy of strip searching arrestees at the point in time that they were classified for housing in the general jail population was constitutional. Bull v. San Francisco, 595 F.3d 964 (2009). Thus class members whose only claim was that they were stripped searched once before being introduced into the general jail population do not have any viable claims against San Francisco. The District Court entered a partial summary judgment in San Francisco’s favor on those claims on September 8, 2010.

Case3:03-cv-01840-CRB Document391-3 Filed03/20/13 Page2 of 2
Who is in the Class That Is Being Dismissed Without Prejudice? Plaintiffs filed this action on behalf of themselves and all other similarly situated individuals. The Court has certified a class consisting of all persons who were arrested after April 22, 2002 and on or before January 23, 2004 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 search by defendants before arraignment at a San Francisco County jail facility without any individualized reasonable suspicion that they were concealing contraband. The certified class also includes 1) all arrestees who were subjected 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 in their persons, and 2) all persons who, prior to arraignment, were subjected to a blanket visual body cavity search(es) incident to placement in a “safety cell” in any of the San Francisco County Jails.
Am I in the Class? You are a member of the class if you were subject to a visual body cavity search without any individualized reasonable suspicion that you were concealing contraband while in the custody of the San Francisco County Jail after April 22, 2002 and on or before January 23, 2004 following your arrest on any charge not involving weapons, controlled substances, or violence, and not involving a violation of parole or a violation of probation (where consent to search is a condition of such probation), and/or you were subjected to subsequent visual body cavity search(es) before arraignment after the initial strip search, or subjected to a visual body cavity search prior or incident to placement in a “safety cell.”
What is the Legal Effect of the Dismissal of the Class Without Prejudice:
If you are in the class and you do nothing, then you will no longer be able to pursue a legal claim for any strip search that occurred at any San Francisco County Jail on or after April 22, 2002 and on or before January 23, 2004. If you wish, however, you have the right to hire your own attorney and pursue your claim. Please note that the statute of limitations that was tolled—or put on hold—during the pendency of this class action lawsuit will start running again and may bar any claims you may wish to pursue unless you timely commence your own individual lawsuit.

 
 Bull v. City and County of San Francisco, Not Reported in F.Supp.2d (2003)

2003 WL 23857823 Only the Westlaw citation is currently available.
United States District Court, N.D. California.
Mary BULL, et al., Plaintiffs, v.
CITY AND COUNTY OF SAN FRANCISCO, et al., Defendants.
No. C-03-1840 CRB(EMC). | Oct. 27, 2003.
Attorneys and Law Firms
Casper, Meadows & Schwartz, Walnut Creek, CA, Mark E. Merin, Esq., Jeffrey I. Schwarzschild, Law Office of Mark E. Merin, Sacramento, CA, for Plaintiffs.
Ingrid M. Evans, City Attorney‘s Office City & County of San Francisco City Hall, Rebecca Lynn Katz, City Attorney’s Office SF Sheriff’s Dept., Sherri Sokeland Kaiser, David B. Newdorf, Robert A. Bonta, Office of the City Attorney City Hall, San Francisco, CA, for Defendants.
Opinion
ORDER GRANTING DEFENDANTS’ MOTION TO COMPEL PRODUCTION OF DOCUMENTS AND DENYING MOTION FOR PROTECTIVE ORDER
CHEN, Magistrate J.
*1 Having reviewed the parties’ briefs and accompanying submissions and having considered the arguments of counsel, and good cause appearing therefor, the Court hereby GRANTS Defendants’ motion to compel production of documents and DENIES their motion for a protective order.
In their motion to compel, Defendants seek production of two documents, more specifically, an encounter report, dated December 23, 1999, authored by Marilyn Valius, CN, and a second encounter report, dated March 21, 2003, authored by Chris Bolt, RN. Both Ms. Valius and Mr. Bolt are employees of Jail Medical Services. Both encounter reports contain medical information about Plaintiff Mary Bull. As is evident from the encounter reports that Ms. Bull produced to Defendants, such a report is generated as part of an intake screening which allows the San Francisco County jail to determine where to place an individual. According to Defendants, the two withheld documents should be produced because they are

relevant and any psychotherapist-patient privilege has been waived since Ms. Bull’s mental condition is at issue, not only with respect to liability but also damages.

At the hearing on Defendants’ motion to compel, Ms. Bull clarified that she was not asserting the psychotherapist-patient privilege because the privilege is not applicable. According to Ms. Bull, the documents should not be produced because they are not relevant and because she has a privacy interest in the nondisclosure of her personal information.

The Court agrees with Ms. Bull that, under the circumstances, the psychotherapist-patient privilege is not applicable. Under Jaffee v. Redmond, 518 U.S. 1, 116 S.Ct. 1923, 135 L.Ed.2d 337 (1996), the privilege protects only “confidential communications between a licensed psychotherapist [or social worker] and her patients in the course of diagnosis or treatment.” Id. at 15. Even if the Court assumes that confidential communications between a nurse and patient are covered by the privilege, the privilege does not apply for several reasons. First, based on the Court’s examination of the two withheld documents (which Ms. Bull submitted for in camera review), there was no psychotherapy involved. Second, the communications between the nurses and Ms. Bull did not take place during the course of diagnosis or treatment. That is, Ms. Bull was not seeking a diagnosis or treatment from the nurses; rather, the nurses were seeking information from Ms. Bull as part of intake screening, more specifically, for the purpose of determining where to place her in the jail. Third, for similar reasons, Ms. Bull did not have a reasonable expectation of confidentiality in the communications. She was not speaking to the nurses for the purpose of diagnosis or treatment but rather to the nurses as representatives for the jail.1

1

That the medical personnel work for a contractor of the

jail and are not jail employees does not materially

change Plaintiff’s expectation of privacy.

The Court, therefore, turns to the issues of relevancy and privacy. The Court concludes that the two withheld documents may be relevant. First, the documents may be relevant to damages. In her complaint, Ms. Bull has alleged emotional distress because of Defendants’ actions, and the documents may be probative of the cause or extent of her emotional distress. Second, the documents are relevant to liability. Ms. Bull has alleged in her complaint that, on November 18 and 19, 2002, she was confined in a “cold room” in the San Francisco County jail pursuant to Defendants’ policy of using such confinement “as punishment for non-violent, non-suicidal, and non-destructive detainees who are dubbed ‘non compliant.” ’ Comp. ¶ 16. If Ms. Bull was confined in the
1

Bull v. City and County of San Francisco, Not Reported in F.Supp.2d (2003)

cold room because she was violent, suicidal, or destruction-i.e., not for purposes of punishment-then this basis for liability alleged in the complaint may be defeated. Ms. Bull’s mental condition may also inform the procedural due process analysis to the extent such a claim is asserted. Ms. Bull’s apparent condition and behavior on other occasions at the jail may be probative to determining her condition during the incarceration at issue.
*2 Ms. Bull has argued that, at most, only those encounter reports on or about the days of her confinement are relevant, and she has produced those documents to Defendants. According to Ms. Bull, the two withheld documents are too remote in time from the days of her confinement to be relevant. The Court agrees that the encounter reports close in time to the days of Ms. Bull’s confinement are relevant and that, as a general matter, the more remote in time documents are the less relevant they are. Cf. Cuoco v. United Sates Bureau of Prisons, No. 98 Civ. 9009(WHP), 2003 U.S. Dist. LEXIS 4766, at *10-11 (S.D.N.Y. Mar. 27, 2003) (in discussing waiver of psychotherapist-patient privilege, noting that waiver should apply to records dating a “reasonable and relevant time” within date of incident at issue). However, that does not necessarily make the documents at issue-one three years before the dates of her confinement, the other four months after the dates of her confinement-so remote in time as to be irrelevant as a matter of law.

a sufficiently grievous threat to [that] interest to establish a constitutional violation.” Whalen, 429 U.S. at 600. As Whalen indicates, a potential disclosure of medical records raises constitutional concerns regarding privacy, but the right to nondisclosure of one’s personal information is not absolute and is subject to a balancing test. See also Crawford v. United States Trustee, 194 F.3d 954, 959 (9th Cir.1999). Compare Jaffee, 518 U.S. at 17-18 (explicitly stating that the psychotherapist-patient privilege is not subject to a balancing test).
*3 The Court determines that, in the case at hand, the interests in favor of disclosure outweigh the interests against disclosure. Ms. Bull does have a privacy interest in avoiding disclosure of personal information. However, that privacy interest is attenuated given the circumstances. As discussed above, Ms. Bull did not have a reasonable expectation that the communications with the nurses in this setting would be confidential as to the jail. Moreover, the Court has reviewed the documents in camera and concludes that they do not contain the kind of highly sensitive information that is often found in e.g. psychotherapy or other medical treatment notes. They contain largely cursory notes about objective facts. Finally, Plaintiff initiated this lawsuit and placed her mental state at issue by alleging that her confinement in the cold room was for punishment only rather than for her own safety; this further lessens her privacy interests in these records.

Any remoteness in time here is tempered by the fact that the two withheld encounter reports involve Ms. Bull’s detainment in the same exact setting as the November 18 and 19 detainment (i.e., the San Francisco County jail) and were authored by two of the same nurses who later evaluated Ms. Bull on November 18 and 19. The latter fact is especially important. Because the withheld encounter reports were authored by two of the same nurses, they may be additionally probative of, inter alia, those nurses’ practices, potential biases, thoroughness, accuracy of observation, etc. They might also refresh their recollections.

The Court therefore grants Defendants’ motion to compel and orders Ms. Bull to produce the two withheld documents to Defendants prior to the depositions scheduled for October 28, 2003.2 In order to protect Ms. Bull’s privacy interest, the Court orders that the documents are to be shown only to Ms. Bull, the two nurses who authored the documents (i.e., Ms. Valius and Mr. Bolt), to retained experts, and to counsel (including counsel’s staff).3 In addition, the Court orders that the documents shall be used solely for purposes of this litigation and shall to be returned to Ms. Bull within thirty days after termination of this action.4

Having concluded that the two encounter reports may be relevant, the Court now turns to the issue of Ms. Bull’s privacy interests. The Supreme Court has recognized a constitutional right to privacy, more specifically, a constitutional right to nondisclosure of one’s personal information. See Whalen v. Roe, 429 U.S. 589, 599, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977); Nixon v. Administrator of Gen. Serv., 433 U.S. 425, 457, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977). In Whalen, the plaintiffs challenged a New York statute which directed that the names and addresses of individuals who obtained certain prescription drugs be compiled in a centralized database to aid in law enforcement. The Supreme Court determined that there was a privacy interest in one’s medical records but ultimately concluded that the state program did not “pose

2

Given the time limitations, copies of these documents

may be served by fax.

3

Although Defendants may not show the two documents

to e.g. the four Jail Psychiatric Services employees.

Unless Defendants establish the predicate fact that

these deponents saw and considered these two

documents in rendering their conclusions during

Plaintiff’s incarceration at issue, the Court sees no need

to disclose these documents to these deponents.

However, Defendant may pose hypotheticals to the

employees based on the information contained in the

documents in order to elicit opinion testimony.

2

Bull v. City and County of San Francisco, Not Reported in F.Supp.2d (2003)

4

Ms. Bull has suggested that, if the Court permits

disclosure of the two encounter reports, the floodgates

will open and Defendants will have free rein to go

through not only all of her medical records but also all

the medical records of any class members. The Court

disagrees. The Court has ordered production of the two

documents given the particular circumstances-e.g., the

documents do not reflect confidential communications

with a psychotherapist and do not contain highly

sensitive information, the communications were not

made during the course of diagnosis or treatment, the

communications were made to jail representatives

rather than treating nurses or physicians, and they were

authored by medical personnel Plaintiff seeks to

depose.

The only issue remaining is Defendants’ motion for a protective order. In their motion, Defendants asked that the depositions of Ms. Valius, Mr. Bolt, and four Jail Psychiatric Services employees (all percipient witnesses to the events of November 18 and 19, 2002) be postponed until after production of the two encounter reports at issue. Given the ruling above, the Court denies Defendants’ motion for a protective order as moot.
IT IS SO ORDERED.
	  

3

 
 Bull v. City and County of San Francisco, Not Reported in F.Supp.2d (2005)

2005 WL 40072 Only the Westlaw citation is currently available.
United States District Court, N.D. California.
Mary BULL, et al., Plaintiffs, v.
CITY AND COUNTY OF SAN FRANCISCO, et al., Defendants.
No. C 03-1840 CRB EMC. | Jan. 5, 2005.
Attorneys and Law Firms
Andrew C. Schwartz, Casper Meadows & Schwartz, Walnut Creek, CA, Mark E. Merin, Esq., Jeffrey I. Schwarzschild, Law Office of Mark E. Merin, Sacramento, CA, for Plaintiffs.
Ingrid M. Evans, Rebecca Lynn Katz, Sherri Sokeland Kaiser, David B. Newdorf, Robert A. Bonta, San Francisco, CA, Andrew C. Schwartz, Casper Meadows & Schwartz, Walnut Creek, CA, for Defendants.
Opinion
ORDER GRANTING PLAINTIFFS’ SECOND MOTION TO COMPEL RESPONSES TO
INTERROGATORIES AND REQUEST FOR SANCTIONS
CHEN, Magistrate J.
>Docket No. 179)
*1 Having reviewed the parties’ briefs and accompanying submissions and having considered the arguments of counsel, and good cause appearing therefor, the Court hereby GRANTS both Plaintiffs’ second motion to compel responses to interrogatories and their request for sanctions.
I. DISCUSSION
A. Motion to Compel On April 15, 2004, the Court issued an order requiring Defendants to provide responses to Plaintiffs’

Interrogatories Nos. 9 and 10 by April 30, 2004. Plaintiffs bring this current motion to compel because of the alleged inadequacy of the responses provided by Defendants. Plaintiffs argue that this information is needed both for settlement purposes and for trial on the merits.
The Court agrees with Plaintiffs that Defendants’ responses are inadequate. First, the chart provided by Defendants at or about the time that their opposition was filed does not in any way address the number of persons who were subjected to pre-arraignment strip searches and released instead of being transferred to another jail facility. See Reply at 2. Furthermore, Defendants have essentially admitted the inadequacy of their responses by stating that the current responses may be off by as much as 20 percent, implicating a margin of error equivalent to millions of dollars in possible damages. See id. Accordingly, the Court orders as follows.
1. Defendants shall provide a sampling to Plaintiffs with respect to the number of persons who were subjected to pre-arraignment strip searches and released instead of being transferred. The sampling shall cover a four-month period, and Plaintiffs shall promptly identify for Defendants which four months should be used. The parties should promptly meet and confer to determine how best to “winnow out” persons who are not covered by the class (e.g., persons arrested for misdemeanors, infractions, minor offenses, or felonies involving drugs, weapons, or violence). Defendants shall then provide to Plaintiffs the arrest cards for the remaining persons who fall within the definition of the class so that Plaintiffs may determine, based on those cards, whether the persons were subjected to pre-arraignment strip searches. Defendants shall have thirty days from the date of this order to produce the arrest cards for inspection to Plaintiffs, or to provide copies thereof to Plaintiffs.
2. Defendants shall have thirty days from the date of this order to come up with accurate responses that address the problem of duplicative records. If Defendants have not resolved the problem by that time, then the parties and their respective computer experts shall meet and confer within the following fifteen days to determine whether they can come up with a solution to the problem of duplicative records. If no solution is found within that time period, then Defendants shall provide a sampling to Plaintiffs within the thirty days following; the sampling shall include information sufficient to permit Plaintiffs to determine the magnitude of the error arising from duplicative records (e.g., by comparing the computer run statistics with those manually compiled). That sampling shall also cover a four-month period, and Plaintiffs shall promptly identify for Defendants which four months should be used.
1

Bull v. City and County of San Francisco, Not Reported in F.Supp.2d (2005)

*2 The purpose of the processes and sampling ordered herein is to give the parties reasonable confidence as to the size of the class and subclasses to facilitate settlement discussions. It does not preclude further production of documents and responses to interrogatories if greater precision is needed for trial and trial preparation.
B. Request for Sanctions Plaintiffs ask for a total of $2,975 in attorney’s fees incurred with respect to their motion to compel. See Mot. at 9; Schwarzchild Decl. ¶ 3. Federal Rule of Civil Procedure 37(b) provides that, if a party fails to obey an order to provide or permit discovery, a court shall-in lieu of or in addition to other sanctions-“require the party failing to obey the order or the attorney advising that party or both to pay the reasonable expenses, including attorney’s fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.” Fed.R.Civ.P. 37(b); see also Fed.R.Civ.P. 37(a)(4) (providing for similar standard if a motion to compel is granted).
As noted above, the Court issued an order an April 15, 2004, compelling Defendants to provide responses to Interrogatories Nos. 9 and 10 by April 30, 2004. Defendants have failed to comply with that order satisfactorily as, even after eight months, they have yet to provide full and complete-or even accurate-responses. Defendants argue that the failure is substantially justified because they “have fully responded to the extent possible on the basis of information they compiled at an expense of hundreds of hours of contractor and staff time.”1 Opp’n at 5. But Defendants do not explain why eight months is not sufficient time to provide full, complete, and accurate responses and how two hundred hours is adequate given the magnitude of the case. Moreover, as noted by

Plaintiffs, the two hundred hours of work took place over the course of sixteen months as the interrogatories were served back in August 2003. More important, even as of today, after Defendants supplemented their responses in connection with the instant motion, Defendants have produced no data regarding the number of detainees who were stripped searched and then released. Moreover, the table Defendants compiled has such a degree of uncertainty about its accuracy, it has limited utility for either settlement or litigation. Defendants could have done more in responding to the interrogatories. The Court thus concludes that Defendants’ failure to comply with the discovery order is not substantially justified and further finds that there are no other circumstances making an award of fees unjust.

1

At the hearing, Defendants represented that their

computer expert had since spent an additional

sixty-seven hours working on this issue.

Having reviewed the materials submitted to the Court, the Court grants Plaintiffs’ request for sanctions and orders that Defendants pay Plaintiffs $2,975 in attorney’s fees.

II. CONCLUSION For the foregoing reasons, the Court hereby grants Plaintiffs’ motion to compel and request for sanctions. *3 This order disposes of Docket No. 179. IT IS SO ORDERED.
	  

2

 
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IN THE UNITED STATES DISTRICT COURT

9

FOR THE NORTHERN DISTRICT OF CALIFORNIA

10

United States District Court For the Northern District of California

11 BULL, et al.,

12

Plaintiffs,

13 v.

14 CITY AND COUNTY OF SAN 15 FRANCISCO, et al.,
Defendants. 16

No. C 03-01840 CRB ORDER DISMISSING CLASS CLAIMS WITHOUT PREJUDICE, AND APPROVING THE STIPULATED SETTLEMENT
/

17 The Court held a final approval hearing in this case at 10:00 a.m. on June 28, 2013.
18 At that hearing, the Court heard counsel for Plaintiffs and Defendants, as well as named
19 Plaintiff Alexis Bronson and counsel for Objector Reginald Luther Scott. Having carefully
20 considered the papers and objections filed in this case, as well as the issues raised at the
21 hearing, and with good cause appearing, the Court hereby ORDERS that:
22 1) The objections are OVERRULED.
23 2) The parties’ Stipulated Settlement is APPROVED and the claims of named
24 Plaintiffs are DISMISSED WITH PREJUDICE and the claims of class members are
25 DISMISSED WITHOUT PREJUDICE. The statute of limitations for class members’ claims,
26 which had been tolled during the pendency of this litigation, now commences to run again.
27 3) Plaintiffs’ counsel shall NOTIFY all objectors on record or who have contacted
28 Plaintiffs’ counsel of the outcome of this case by providing them with a copy of this Order.

United States District Court For the Northern District of California

1

4) If Objector Scott chooses to pursue a claim against named Defendants pursuant to

2 the dismissal of his class claims, Plaintiffs’ counsel shall share their accumulated discovery

3 with Scott or, if applicable, his counsel.

4

IT IS SO ORDERED.

5

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7 Dated: June 28, 2011 8

CHARLES R. BREYER UNITED STATES DISTRICT JUDGE

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G:\CRBALL\2003\1840\order re final approval.wpd

2

 
 Case: 3:03-cv-01840-CRB As of: 07/05/2014 11:39 AM PDT 1 of 42
ADRMOP,CLOSED,E−Filing,PRVADR,REFSET−JCS,RELATE
U.S. District Court California Northern District (San Francisco) CIVIL DOCKET FOR CASE #: 3:03−cv−01840−CRB

Bull et al v. City and County of San Francisco et al Assigned to: Hon. Charles R. Breyer Referred to: Magistrate Judge Joseph C. Spero (Settlement) Relate Case Cases: 3:03−cv−03105−CRB
3:04−cv−03729−CRB
Case in other court: USCA, 05−17080
USCA, 06−15566 Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 04/23/2003 Date Terminated: 03/31/2014 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Mary Bull

represented by Andrew Charles Schwartz Casper Meadows Schwartz &Cook California Plaza 2121 North California Boulevard Suite 1020 Walnut Creek, CA 94596 925−947−1147 Fax: 925−947−1131 Email: schwartz@cmslaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark E. Merin , Esq. Law Office of Mark E. Merin 1010 F Street, Suite 300 Sacramento, CA 95814 916−443−6911 Fax: 916−447−8336 Email: mark@markmerin.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeffrey I. Schwarzschild Department of Justice Office of the Attorney General Employment Regulation &Administration Section 1300 I Street Sacramento, CA 95814 916/324−8630 Email: Jeffrey.Schwarzschild@doj.ca.gov TERMINATED: 11/15/2006 ATTORNEY TO BE NOTICED

Plaintiff
Jonah Zern and all others similarly situated TERMINATED: 08/04/2010

represented by Andrew Charles Schwartz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark E. Merin , Esq. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeffrey I. Schwarzschild (See above for address)

Case: 3:03-cv-01840-CRB As of: 07/05/2014 11:39 AM PDT 2 of 42

TERMINATED: 11/15/2006 ATTORNEY TO BE NOTICED

Plaintiff Laura Timbrook

represented by Mark E. Merin , Esq. (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Leigh Fleming

represented by Mark E. Merin , Esq. (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Charli Johnson TERMINATED: 08/04/2010

represented by Mark E. Merin , Esq. (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Micky Mangosing

represented by Mark E. Merin , Esq. (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Alexis Bronson

represented by Mark E. Merin , Esq. (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Marcy Corneau TERMINATED: 08/04/2010

represented by Mark E. Merin , Esq. (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Lisa Giampaoli

represented by Mark E. Merin , Esq. (See above for address) ATTORNEY TO BE NOTICED

Plaintiff J. Quechaun Allen

represented by Mark E. Merin , Esq. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Diana Smith

represented by Mark E. Merin , Esq. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Michele De Ranleau

represented by Mark E. Merin , Esq. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Michael Marron

represented by

Case: 3:03-cv-01840-CRB As of: 07/05/2014 11:39 AM PDT 3 of 42

Mark E. Merin , Esq. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Steve Noh

represented by Mark E. Merin , Esq. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Sister Bernie Galvin

represented by Mark E. Merin , Esq. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Brian Vowel

represented by Mark E. Merin , Esq. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Ewart Yearwood TERMINATED: 02/24/2011

represented by Mark E. Merin , Esq. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant City and County of San Francisco

represented by Danny Yeh Chou City Attorney's Office City &County of San Francisco Fox Plaza 1390 Market Street 7th Floor San Francisco, CA 94102−5408 415−554−3807 Fax: 415−554−3985 Email: danny.chou@sfgov.org TERMINATED: 01/16/2013 ATTORNEY TO BE NOTICED
Ingrid M. Evans The Evans Law Firm 3053 Fillmore Street, #236 San Francisco, CA 94123 (415) 441−8669 Fax: (888) 891−4906 Email: ingrid@evanslaw.com TERMINATED: 11/07/2005 ATTORNEY TO BE NOTICED
Jennifer E. Choi Fox Plaza 1390 Market Street 6th Floor San Francisco, CA 94102−5408 415−554−3887

Case: 3:03-cv-01840-CRB As of: 07/05/2014 11:39 AM PDT 4 of 42

Fax: 415−554−3837 Email: jennifer.choi@sfgov.org TERMINATED: 03/29/2006 ATTORNEY TO BE NOTICED

Owen J. Clements City Attorney's Office City of San Francisco 1390 Market Street, 7th Floor San Francisco, CA 94102 415−554−3944 Email: owen.clements@sfgov.org ATTORNEY TO BE NOTICED

Rebecca Lynn Katz City Attorney's Office SF Sheriff's Dept 1 Dr Carlton B Goodlett Pl City Hall San Francisco, CA 94102 415−554−4665 Email: Rebecca.Katz@sfgov.org ATTORNEY TO BE NOTICED

Sherri Sokeland Kaiser Office of the City Attorney City &County of San Francisco #1 Dr. Carlton B. Goodlett Place City Hall, Room 234 San Francisco, CA 94102−4682 (415) 554−4691 Fax: (415) 554−4747 Email: sherri.sokeland.kaiser@sfgov.org TERMINATED: 03/29/2006 ATTORNEY TO BE NOTICED

David Blake Newdorf Newdorf Legal 220 Montgomery Street, Suite 1850 San Francisco, CA 94104 415−357−1234 Fax: 866−954−8448 Email: david@newdorf.com TERMINATED: 05/11/2012 ATTORNEY TO BE NOTICED

Robert A. Bonta City Attorney's Office City &County of San Francisco Fox Plaza 1390 Market Street 7th Floor San Francisco, CA 94102−5408 415−554−4268 Fax: 415−554−3837 Email: robert.bonta@sfgov.org TERMINATED: 01/16/2013 ATTORNEY TO BE NOTICED

Defendant
San Francisco County Sheriff's Department

represented by Danny Yeh Chou (See above for address) TERMINATED: 01/16/2013 ATTORNEY TO BE NOTICED

Case: 3:03-cv-01840-CRB As of: 07/05/2014 11:39 AM PDT 5 of 42

Defendant Michael Hennessey Sheriff TERMINATED: 08/04/2010
Defendant

Owen J. Clements (See above for address) ATTORNEY TO BE NOTICED
Rebecca Lynn Katz (See above for address) ATTORNEY TO BE NOTICED
Sherri Sokeland Kaiser (See above for address) TERMINATED: 03/29/2006 ATTORNEY TO BE NOTICED
David Blake Newdorf (See above for address) TERMINATED: 05/11/2012 ATTORNEY TO BE NOTICED
Ingrid M. Evans (See above for address) TERMINATED: 11/07/2005 ATTORNEY TO BE NOTICED
Robert A. Bonta (See above for address) TERMINATED: 01/16/2013 ATTORNEY TO BE NOTICED
represented by Danny Yeh Chou (See above for address) TERMINATED: 01/16/2013 ATTORNEY TO BE NOTICED
Owen J. Clements (See above for address) ATTORNEY TO BE NOTICED
Rebecca Lynn Katz (See above for address) ATTORNEY TO BE NOTICED
Sherri Sokeland Kaiser (See above for address) TERMINATED: 03/29/2006 ATTORNEY TO BE NOTICED
David Blake Newdorf (See above for address) TERMINATED: 05/11/2012 ATTORNEY TO BE NOTICED
Ingrid M. Evans (See above for address) TERMINATED: 11/07/2005 ATTORNEY TO BE NOTICED
Robert A. Bonta (See above for address) TERMINATED: 01/16/2013 ATTORNEY TO BE NOTICED

Case: 3:03-cv-01840-CRB As of: 07/05/2014 11:39 AM PDT 6 of 42

San Francisco County Sheriff's Deputies

represented by David Blake Newdorf (See above for address) TERMINATED: 05/11/2012 ATTORNEY TO BE NOTICED

Ingrid M. Evans (See above for address) TERMINATED: 11/07/2005 ATTORNEY TO BE NOTICED

Robert A. Bonta (See above for address) TERMINATED: 01/16/2013 ATTORNEY TO BE NOTICED

Interested Party Marie Doe

represented by Michael J. Haddad Haddad &Sherwin 505 17th Street Oakland, CA 94612 510−452−5500 Fax: 510−452−5510 Email: haddad.sherwin@sbcglobal.net ATTORNEY TO BE NOTICED

Cross−claimant City and County of San Francisco

represented by David Blake Newdorf (See above for address) TERMINATED: 05/11/2012 ATTORNEY TO BE NOTICED

Ingrid M. Evans (See above for address) TERMINATED: 11/07/2005 ATTORNEY TO BE NOTICED

Cross−claimant
Michael Hennessey Sheriff TERMINATED: 08/04/2010

represented by David Blake Newdorf (See above for address) TERMINATED: 05/11/2012 ATTORNEY TO BE NOTICED

Ingrid M. Evans (See above for address) TERMINATED: 11/07/2005 ATTORNEY TO BE NOTICED

Cross−claimant
San Francisco County Sheriff's Department

represented by David Blake Newdorf (See above for address) TERMINATED: 05/11/2012 ATTORNEY TO BE NOTICED

Ingrid M. Evans (See above for address) TERMINATED: 11/07/2005 ATTORNEY TO BE NOTICED

Cross−claimant
San Francisco County Sheriff's Deputies

represented by Ingrid M. Evans (See above for address) TERMINATED: 11/07/2005

Case: 3:03-cv-01840-CRB As of: 07/05/2014 11:39 AM PDT 7 of 42 ATTORNEY TO BE NOTICED

V. Cross−defendant Mary Bull
Cross−defendant Jonah Zern and all others similarly situated TERMINATED: 08/04/2010 Cross−defendant Laura Timbrook
Cross−defendant Leigh Fleming
Cross−defendant Charli Johnson TERMINATED: 08/04/2010
Cross−defendant Micky Mangosing
Cross−defendant Alexis Bronson
Cross−defendant Marcy Corneau TERMINATED: 08/04/2010
Cross−defendant Lisa Giampaoli

represented by Andrew Charles Schwartz (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew Charles Schwartz (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew Charles Schwartz (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew Charles Schwartz (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew Charles Schwartz (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew Charles Schwartz (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew Charles Schwartz (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew Charles Schwartz (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew Charles Schwartz (See above for address) ATTORNEY TO BE NOTICED

Date Filed 04/23/2003
04/23/2003

# Docket Text
1 COMPLAINT ; Summons Issued against all defendants (Filing fee $150 receipt number 3346670). Filed by Mary Bull. (mcl, ) Additional attachment(s) added on 6/6/2003 (mcl, ). (Entered: 04/23/2003)
2 ADR SCHEDULING ORDER: Case Management Statement due by 7/18/2003. Case Management Conference set for 7/25/2003 at 08:30 AM. (mcl, ) Additional attachment(s) added on 4/23/2003 (mcl, ). (Entered: 04/23/2003)

Case: 3:03-cv-01840-CRB As of: 07/05/2014 11:39 AM PDT 8 of 42

04/23/2003 05/29/2003 06/02/2003 06/03/2003 06/03/2003 06/03/2003 06/04/2003 06/06/2003 06/06/2003 06/26/2003 06/30/2003 07/17/2003 07/28/2003 07/28/2003 09/03/2003 10/09/2003
10/09/2003
10/09/2003
10/09/2003

CASE DESIGNATED for Electronic Filing. (mcl, ) (Entered: 04/23/2003)
3 CLERK'S NOTICE re: Failure to E−File the Complaint. (mcl, ) (Entered: 05/29/2003)
4 STIPULATION Extending Time to Respond to Complaint by City and County of San Francisco. (Evans, Ingrid) (Entered: 06/02/2003)
5 ORDER extending time to respond to complaint. Signed by Judge Charles R. Breyer on 06/02/03. (be, ) (Entered: 06/03/2003)
6 NOTICE of unavailability of counsel by City and County of San Francisco. (mcl, ) Additional attachment(s) added on 6/11/2003 (mcl, ). (Entered: 06/04/2003)
7 CLERK'S NOTICE re: Failure to E−File and/or Failure to Register as an E−Filer (mcl, ) (Entered: 06/04/2003)
8 CLERK'S SECOND NOTICE re: Failure to E−File the Complaint. (mcl, ) (Entered: 06/04/2003)
9 Defendants' ANSWER to Complaint for damages by City and County of San Francisco, Michael Hennessey, San Francisco County Sheriff's Department. (Evans, Ingrid) (Entered: 06/06/2003)
10 SUMMONS Returned Executed, by Mary Bull, Jonah Zern. City and County of San Francisco ; Michael Hennessey ; San Francisco County Sheriff's Department (mcl, ) (Entered: 06/09/2003)
11 NOTICE OF UNAVAILABILITY OF COUNSEL FOR DEFENDANT by City and County of San Francisco. (Evans, Ingrid) (Entered: 06/26/2003)
12 ASSOCIATION of Counsel. (Merin, Mark) (Entered: 06/30/2003)
13 JOINT CASE MANAGEMENT STATEMENT filed by City and County of San Francisco. (Evans, Ingrid) (Entered: 07/17/2003)
14 Minute Entry: Initial Case Management Conference held on 7/25/2003 before Charles R. Breyer. (Court Reporter N/A.) (be, ) (Entered: 07/28/2003)
Set/Reset Hearings: Motion for class certification Hearing set for 3/26/2004 10:00 AM. (be, ) (Entered: 07/28/2003)
15 NOTICE of Appearance /Association of Robert A. Bonta by City and County of San Francisco, Michael Hennessey, San Francisco County Sheriff's Department, San Francisco County Sheriff's Deputies. (Bonta, Robert) (Entered: 09/03/2003)
16 STIPULATION (REQUEST FOR ORDER SHORTENING TIME FOR DEFENDANTS' MOTION TO COMPEL PRODUCTION OF DOCUMENTS AND FOR A PROTECTIVE ORDER by City and County of San Francisco, Michael Hennessey, San Francisco County Sheriff's Department, San Francisco County Sheriff's Deputies. (Newdorf, David) (Entered: 10/09/2003)
17 Declaration of david b. newdorf IN SUPPORT OF DEFENDANT'S MOTION TO COMPEL PRODUCTION OF DOCUMENTS AND FOR PROTECTIVE ORDER filed by City and County of San Francisco, Michael Hennessey, San Francisco County Sheriff's Department, San Francisco County Sheriff's Deputies. (Newdorf, David) (Entered: 10/09/2003)
18 MEMORANDUM in Support (MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS' MOTION TO COMPEL PRODUCTION OF DOCUMENTS AND FOR A PROTECTIVE ORDER filed by City and County of San Francisco, Michael Hennessey, San Francisco County Sheriff's Department, San Francisco County Sheriff's Deputies. (Newdorf, David) (Entered: 10/09/2003)
19 Proposed Order GRANTING DEFENDANTS' MOTION TO COMPEL PRODUCTION OF DOCUMENTS AND FOR PROTECTIVE ORDER by City and County of San Francisco, Michael Hennessey, San Francisco County Sheriff's Department, San Francisco County Sheriff's Deputies. (Newdorf, David) (Entered: 10/09/2003)

Case: 3:03-cv-01840-CRB As of: 07/05/2014 11:39 AM PDT 9 of 42

10/10/2003 10/14/2003 10/14/2003 10/17/2003 10/17/2003 10/17/2003 10/17/2003 10/17/2003 10/17/2003 10/20/2003
10/20/2003 10/21/2003
10/21/2003
10/24/2003
10/27/2003
11/03/2003 11/04/2003

20 ORDER REFERRING CASE to Magistrate Judge for Discovery purposes. Signed by Judge Charles R. Breyer on 10/10/03. (be, COURT STAFF) (Entered: 10/10/2003)
CASE REFERRED to Magistrate Judge for Discovery Edward M. Chen. (wh, COURT STAFF) (Entered: 10/14/2003)
21 ORDER SHORTENING TIME −− STIPULATION AND ORDER for Motion Hearing 18 set for 10/24/2003 03:00 PM. Signed by Magistrate Judge Edward M. Chen on 10/14/2003. (emcsec) (Entered: 10/14/2003)
22 Memorandum of points and authorities in Opposition to Defs Motion to Compel Production &for Protective Order filed by Mary Bull, Jonah Zern. (Merin, Mark) Modified on 10/20/2003 (mcl, COURT STAFF). (Entered: 10/17/2003)
23 DECLARATION of Mark Merin in Opposition to Defs Motion to Compel and for a Protective Order filed by Mary Bull, Jonah Zern. (Merin, Mark) (Entered: 10/17/2003)
24 DECLARATION of Kari L. Kalista −−Proof of Service −− filed by Mary Bull, Jonah Zern. (Merin, Mark) (Entered: 10/17/2003)
25 Memorandum of points and authorities in opposition to defendants' motion to compel production of documents and for a protective order by Mary Bull, Jonah Zern. (mcl, COURT STAFF) (Entered: 10/20/2003)
26 DECLARATION of Mark E. Merin in support of plaintiffs' opposition to defendants' motion to compel production of documents and for a protective order filed by Mary Bull, Jonah Zern. (mcl, COURT STAFF) (Entered: 10/20/2003)
27 CERTIFICATE/PROOF OF SERVICE by Mary Bull, Jonah Zern re 25 , 26 (mcl, COURT STAFF) (Entered: 10/20/2003)
28 CLERK'S NOTICE re: Failure to E−File and/or Failure to Register as an E−Filer (mcl, COURT STAFF) Modified on 10/20/2003 (mcl, COURT STAFF). DISREGARD THE CLERK'S NOTICE − LOOK AT ABOVE #22, #23 AND #24. (Entered: 10/20/2003)
29 NOTICE OF REFERENCE AND ORDER RE DISCOVERY PROCEDURES. Signed by Judge Edward M. Chen on 10/20/03. (bpf, ) (Entered: 10/20/2003)
30 Declaration of Dr. John B. Sikorski, M.D. In Support of Defendants' Motion To Compel Production Of Documents filed by City and County of San Francisco, Michael Hennessey, San Francisco County Sheriff's Department. (Newdorf, David) (Entered: 10/21/2003)
31 Reply to Opposition re 18 Defendants' Motion To Compel Production of Documents and For A Protective Order filed by City and County of San Francisco, Michael Hennessey, San Francisco County Sheriff's Department. (Newdorf, David) (Entered: 10/21/2003)
32 Minute Entry: Motion Hearing re Defendant's Motion to compel production of documents and for a protective order held on 10/24/2003 before Edward M. Chen. Judge took matter under submission. (Court Reporter Rosita Flores.) (bpf, ) (Entered: 10/24/2003)
33 ORDER GRANTING DEFENDANTS' MOTION TO COMPEL PRODUCTION OF DOCUMENTS AND DENYING MOTION FOR PROTECTIVE ORDER 18 . Signed by Magistrate Judge Edward M. Chen on 10/27/2003. (emcsec) (Entered: 10/27/2003)
34 ORDER RELATING CASE C03−4692SBA to lead case C03−1840CRB . Signed by Judge Charles R. Breyer on 11/03/03. (be, COURT STAFF) (Entered: 11/03/2003)
35 NOTICE of Related Case Re C 03−4022 MHP/C 03−1840 CRB by City and County of San Francisco, Michael Hennessey, San Francisco County Sheriff's Department. (Newdorf, David) (Entered: 11/04/2003)

Case: 3:03-cv-01840-CRB As of: 07/05/2014 11:39 AM PDT 10 of 42

11/06/2003 11/07/2003 11/10/2003 11/18/2003 11/19/2003
11/19/2003

36 ORDER RELATING CASE C−03−4022MHP to case C−03−1840CRB . Signed by Judge Charles R. Breyer on 11/06/03. (be, COURT STAFF) (Entered: 11/06/2003)
37 NOTICE of Related Case by City and County of San Francisco. (Evans, Ingrid) (Entered: 11/07/2003)
38 NOTICE of Related Case by City and County of San Francisco. (Evans, Ingrid) (Entered: 11/10/2003)
39 ORDER relating C−03−3105JSW to case C−03−1840 CRB. Signed by Judge Charles R. Breyer on 11/14/03. (be, COURT STAFF) (Filed on 11/18/2003) (Entered: 11/18/2003)
40 MOTION to Compel Responses to Interrogatories and Production of Documents filed by City and County of San Francisco, Michael Hennessey, San Francisco County Sheriff's Department, San Francisco County Sheriff's Deputies. Motion Hearing set for 12/24/2003 10:30 AM. (Evans, Ingrid) (Filed on 11/19/2003) *** FILED IN ERROR. PLEASE SEE DOCKET # 41 FOR PDF FILE *** Modified on 11/20/2003 (br, COURT STAFF). (Entered: 11/19/2003)
41 MEMORANDUM in Support re 40 of Motion to Compel Interrogatory Responses and Production of Documents filed by City and County of San Francisco, Michael Hennessey, San Francisco County Sheriff's Department, San Francisco County Sheriff's Deputies. (Related document(s) 40 ) (Evans, Ingrid) (Filed on 11/19/2003) *** FILED IN ERROR. PLEASE SEE DOCKET # 40 FOR PDF FILE. ***

11/19/2003
11/19/2003 11/20/2003 11/20/2003 11/21/2003 12/03/2003 12/03/2003 12/03/2003 12/10/2003

Modified on 11/20/2003 (br, COURT STAFF). (Entered: 11/19/2003)
42 DECLARATION in Support re 40 of Motion to Compel Interrogatory Responses and Production of Documents filed by City and County of San Francisco, Michael Hennessey, San Francisco County Sheriff's Department, San Francisco County Sheriff's Deputies. (Attachments: # 1 # 2 # 3 # 4 # 5 # 6 # 7 # 8 # 9 # 10)(Related document(s) 40 ) (Evans, Ingrid) (Filed on 11/19/2003) (Entered: 11/19/2003)
43 Proposed Order re 40 Granting Motion to Compel Interrogatory Responses and Production of Documents by City and County of San Francisco, Michael Hennessey, San Francisco County Sheriff's Department, San Francisco County Sheriff's Deputies. (Evans, Ingrid) (Filed on 11/19/2003) (Entered: 11/19/2003)
44 CLERK'S NOTICE Continuing Defendant's Motion to Compel from 12/24/03 to 1/7/2004 10:30 AM. (bpf, ) (Filed on 11/20/2003) (Entered: 11/20/2003)
45 AMENDED CLERK'S NOTICE Continuing Defendants' Motion to Compel from 12/24/03 to 1/7/04 at 10:30 a.m. (bpf, ) (Filed on 11/20/2003) (Entered: 11/20/2003)
46 TRANSCRIPT of Proceedings held on 10/24/03 before Judge Edward M. Chen. Court Reporter: Rosita Flores. (mmt, COURT STAFF) (Filed on 11/21/2003) (Entered: 11/25/2003)
47 Memorandum in Opposition to Defendants' Motion to Compel Responses to Interrogatories and Production of Documents filed by Mary Bull, Jonah Zern. (Merin, Mark) (Filed on 12/3/2003) (Entered: 12/03/2003)
48 EXHIBITS − Exhibit 1 to Plaintiffs' Memorandum in Opposition to Defendants' Motion to Compel Responses to Interrogatories and Production of Documents filed by Mary Bull, Jonah Zern. (Merin, Mark) (Filed on 12/3/2003) (Entered: 12/03/2003)
49 EXHIBITS re 47 Exhibit 2 to Plaintiffs' Memorandum in Opposition to Defendants' Motion to Compel Responses to Interrogatories and Production of Documents filed by Mary Bull, Jonah Zern. (Related document(s) 47 ) (Merin, Mark) (Filed on 12/3/2003) (Entered: 12/03/2003)
50 Reply to Opposition in Support of Motion to Compel Responses to Interrogatories and Production of Documents filed by City and County of San Francisco. (Evans, Ingrid) (Filed on 12/10/2003) (Entered: 12/10/2003)

Case: 3:03-cv-01840-CRB As of: 07/05/2014 11:39 AM PDT 11 of 42

12/10/2003 12/30/2003 01/08/2004
01/12/2004 01/12/2004 01/12/2004 01/13/2004 01/13/2004 01/16/2004 01/20/2004 01/21/2004
01/21/2004 01/21/2004
01/21/2004 01/22/2004

51 Declaration of Ingrid M. Evans in Support of 40 , 42 Defendants' Motion to Compel Interrogatory Responses and Production of Documents filed by City and County of San Francisco. (Attachments: # 1 Exhibit J)(Related document(s) 40 , 42 ) (Evans, Ingrid) (Filed on 12/10/2003) (Entered: 12/10/2003)
52 NOTICE by City and County of San Francisco Notice of Unavailability of Counsel (Evans, Ingrid) (Filed on 12/30/2003) (Entered: 12/30/2003)
53 Minute Entry: Motion Hearing held on 1/7/2004 before Edward M. Chen (Date Filed: 1/8/2004) re 40 MOTION to Compel Responses to Interrogatories and Production of Documents filed by City and County of San Francisco, San Francisco County Sheriff's Department, Michael Hennessey, San Francisco County Sheriff's Deputies. Motion is granted in part and denied in part. Defendants to submit proposed order. (Court Reporter Debra Pas.) (bpf, ) (Date Filed: 1/8/2004) (Entered: 01/08/2004)
54 STIPULATION to File First Amended Complaint; [Proposed] Order by Mary Bull, Jonah Zern. (Merin, Mark) (Filed on 1/12/2004) (Entered: 01/12/2004)
55 AMENDED COMPLAINT − First Amended Class Action Complaint against all defendants. Filed by Laura Timbrook, Leigh Fleming, Charli Johnson, Micky Mangosing, Alexis Bronson, Marcy Corneau, Lisa Giampaoli, Mary Bull, Jonah Zern. (Merin, Mark) (Filed on 1/12/2004) (Entered: 01/12/2004)
56 CERTIFICATE OF SERVICE by Alexis Bronson, Mary Bull, Marcy Corneau, Leigh Fleming, Lisa Giampaoli, Charli Johnson, Micky Mangosing, Laura Timbrook, Jonah Zern re 55 Amended Complaint, (Merin, Mark) (Filed on 1/12/2004) (Entered: 01/12/2004)
57 STIPULATION AND ORDER to file first amended complaint. Signed by Judge Charles R. Breyer on 01/12/04. (be, COURT STAFF) (Filed on 1/13/2004) (Entered: 01/13/2004)
58 ORDER by Magistrate Judge Edward M. Chen granting in part and denying in part 40 Defendants' Motion to Compel. (emcsec, ) (Filed on 1/13/2004) (Entered: 01/13/2004)
59 Ex Parte Application to file excess of 25 pages filed by Mary Bull. (Schwartz, Andrew) (Filed on 1/16/2004) (Entered: 01/16/2004)
61 Letter Brief re 59 filed by City and County of San Francisco, Michael Hennessey, San Francisco County Sheriff's Department, San Francisco County Sheriff's Deputies. (Related document(s) 59 ) (mmt, COURT STAFF) (Filed on 1/20/2004) (Entered: 01/21/2004)
60 First MOTION for Preliminary Injunction filed by Mary Bull. Motion Hearing set for 2/27/2004 10:00 AM. (Attachments: # 1 Declaration# 2 Manual Filing Notifications# 3 Proposed Order # 4 Declaration# 5 Declaration# 6 # 7 Declaration# 8 Declaration# 9 Declaration# 10 Declaration# 11 Proof of Service)(Schwartz, Andrew) (Filed on 1/21/2004) (Entered: 01/21/2004)
Letter from Thom Seaton re: withdrawal of ex−parte motion and filing motion for preliminary injuction with memorandum of 25 pages. (mmt, COURT STAFF) (Filed on 1/21/2004) (Entered: 01/23/2004)
67 NOTICE by Alexis Bronson, Mary Bull, Marcy Corneau, Leigh Fleming, Lisa Giampaoli, Charli Johnson, Micky Mangosing, Laura Timbrook, Jonah Zern re 66 MOTION for Preliminary Injunction Administrative Request, 60 First MOTION for Preliminary Injunction; and Exhibits to declaration in support (mmt, COURT STAFF) (Filed on 1/21/2004) (Entered: 01/23/2004)
68 Declaration of Thom Seaton in Support of 60 filed by Alexis Bronson, Mary Bull, Marcy Corneau, Leigh Fleming, Lisa Giampaoli, Charli Johnson, Micky Mangosing, Laura Timbrook, Jonah Zern. (Related document(s) 60 ) (mmt, COURT STAFF) (Filed on 1/21/2004) (Entered: 01/23/2004)
62 DEFENDANT'S ANSWER to Amended Complaint (ANSWER TO PLAINTIFF'S FIRST AMENDED CLASS ACTION COMPLAINT AND DEMAND FOR JURY TRIAL by City and County of San Francisco, Michael Hennessey, San Francisco

Case: 3:03-cv-01840-CRB As of: 07/05/2014 11:39 AM PDT 12 of 42

01/22/2004
01/22/2004 01/22/2004 01/22/2004 01/23/2004 01/27/2004 01/27/2004 02/03/2004 02/04/2004 02/05/2004 02/11/2004 02/11/2004 02/11/2004

County Sheriff's Department, San Francisco County Sheriff's Deputies. (Attachments: # 1 demand for jury trial)(Evans, Ingrid) (Filed on 1/22/2004) (Entered: 01/22/2004)
63 First CROSSCLAIM (CROSS−COMPLAINT BY DEFENDANT'S CITY AND COUNTY OF SAN FRANCISCO AND SAN FRANCISCO COUNTY SHERIFF MICHAEL HENNESSEY AGAINST PLAINTIFFS MARY BULL, JONAH ZERN, LISA GIAMPAOLI, MARCY CORNEAU, ALEXIS BRONSON, MICKY MANGOSING, CHARLI JOHNSON, LEIGH FLEMING, LAURA TIMBROOK FOR DECLARATORY RELIEF against all plaintiffs. Filed by City and County of San Francisco, Michael Hennessey, San Francisco County Sheriff's Department, San Francisco County Sheriff's Deputies. (Evans, Ingrid) (Filed on 1/22/2004) (Entered: 01/22/2004)
64 Memorandum in Opposition (DEFENDANT'S OBJECTION TO MOTION FOR PRELIMINARY INJUNCTION FOR FILING A MOTION IN EXCESS OF 15 PAGES) filed by City and County of San Francisco, Michael Hennessey, San Francisco County Sheriff's Department, San Francisco County Sheriff's Deputies. (Evans, Ingrid) (Filed on 1/22/2004) (Entered: 01/22/2004)
65 Declaration of INGRID EVANS IN SUPPORT OF DEFENANTS' OBJECTION TO MOTION FOR PRELIMINARY INJUNCTION FOR FILING A MOTION IN EXCESS OF 15 PAGES filed by City and County of San Francisco, Michael Hennessey, San Francisco County Sheriff's Department, San Francisco County Sheriff's Deputies. (Evans, Ingrid) (Filed on 1/22/2004) (Entered: 01/22/2004)
66 Document: Administrative Request filed by Mary Bull. Motion Hearing set for 2/27/2004 09:00 AM. (Attachments: # 1 Proof of Service)(Schwartz, Andrew) (Filed on 1/22/2004) Modified on 3/15/2004 (mmt, COURT STAFF). (Entered: 01/22/2004)
69 DECLARATION of Ingrid M. Evans in Support of San Francisco's Oppositiion to Plaintiffs' Administrative Request; Proposed Order filed by City and County of San Francisco. (Evans, Ingrid) (Filed on 1/23/2004) (Entered: 01/23/2004)
70 ASSOCIATION of Counsel Rebecca Katz and Request to Be Notified of E−Filings by City and County of San Francisco. (Evans, Ingrid) (Filed on 1/27/2004) (Entered: 01/27/2004)
71 ASSOCIATION of Counsel of Sherri Sokeland Kaiser and Request To Be Notified of E−Filings by City and County of San Francisco. (Evans, Ingrid) (Filed on 1/27/2004) (Entered: 01/27/2004)
72 DEFENDANTS' MOTION TO CHANGE TIME TO HEAR PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION (N.D. LOCAL RULE 6−3) filed by City and County of San Francisco, Michael Hennessey, San Francisco County Sheriff's Department. (Attachments: # 1 # 2)(Kaiser, Sherri) (Filed on 2/3/2004) Modified on 3/15/2004 (mmt, COURT STAFF). (Entered: 02/03/2004)
73 ORDER for permission to file a memorandum of 25 pages in support of motion for preliminary injunction and Order Setting Hearing on Motion 60 First MOTION for Preliminary Injunction: Motion Hearing set for 3/12/2004 10:00 AM.. Signed by Judge Charles R. Breyer on 02/03/04. (be, COURT STAFF) (Filed on 2/4/2004) (Entered: 02/04/2004)
74 NOTICE of Related Case (Schwartz, Andrew) (Filed on 2/5/2004) (Entered: 02/05/2004)
75 ANSWER to Crossclaim by Alexis Bronson, Mary Bull, Marcy Corneau, Leigh Fleming, Lisa Giampaoli, Charli Johnson, Micky Mangosing, Laura Timbrook, Jonah Zern. (Schwartz, Andrew) (Filed on 2/11/2004) (Entered: 02/11/2004)
76 ORDER Setting Hearing on Motion 60 First MOTION for Preliminary Injunction: Motion Hearing set for 4/9/2004 10:00 AM.. Signed by Judge Charles R. Breyer on 02/09/04. (be, COURT STAFF) (Filed on 2/11/2004) (Entered: 02/11/2004)
77 CLERK'S NOTICE Continuing Motion for Preliminary Injunction and Motion for Class Certification Hearing Motion Hearing set for 4/9/2004 10:00 AM. (be,

Case: 3:03-cv-01840-CRB As of: 07/05/2014 11:39 AM PDT 13 of 42

02/12/2004 02/12/2004 02/12/2004 02/12/2004
02/12/2004
02/12/2004 02/12/2004
02/20/2004 02/23/2004 03/05/2004 03/05/2004

COURT STAFF) (Filed on 2/11/2004) (Entered: 02/11/2004)
78 CLERK'S NOTICE re: Failure to E−File and/or Failure to Register as an E−Filer (mmt, COURT STAFF) (Filed on 2/12/2004) (Entered: 02/12/2004)
79 MOTION to Compel Responses to Interrogatories filed by Alexis Bronson, Mary Bull, Marcy Corneau, Leigh Fleming, Lisa Giampaoli, Charli Johnson, Micky Mangosing, Laura Timbrook, Jonah Zern. Motion Hearing set for 3/31/2004 10:30 AM. (Merin, Mark) (Filed on 2/12/2004) (Entered: 02/12/2004)
80 NOTICE by Alexis Bronson, Mary Bull, Marcy Corneau, Leigh Fleming, Lisa Giampaoli, Charli Johnson, Micky Mangosing, Laura Timbrook, Jonah Zern re 79 MOTION to Compel Responses to Interrogatories (Merin, Mark) (Filed on 2/12/2004) (Entered: 02/12/2004)
81 Declaration of Jeffrey I. Schwarzschild in Support of 79 Plaintiffs' Motion to Compel Responses to Interrogatories filed by Alexis Bronson, Mary Bull, Marcy Corneau, Leigh Fleming, Lisa Giampaoli, Charli Johnson, Micky Mangosing, Laura Timbrook, Jonah Zern. (Attachments: # 1 Exhibit Exhibit A to Schwarzschild Declaration)(Related document(s) 79 ) (Merin, Mark) (Filed on 2/12/2004) (Entered: 02/12/2004)
82 Declaration of Mark E. Merin in Support of Plaintiffs' Motion to Compel Responses to Interrogatories filed by Alexis Bronson, Mary Bull, Marcy Corneau, Leigh Fleming, Lisa Giampaoli, Charli Johnson, Micky Mangosing, Laura Timbrook, Jonah Zern. (Attachments: # 1 Exhibit A to Merin Declaration# 2 Exhibit B to Merin Declaration# 3 Exhibit C to Merin Declaration# 4 Exhibit D to Merin Declaration# 5 Exhibit E to Merin Declaration# 6 Exhibit F to Merin Declaration# 7 Exhibit G to Merin Declaration# 8 Exhibit H to Merin Declaration# 9 Exhibit I to Merin Declaration# 10 Exhibit J to Merin Declaration# 11 Exhibit K to Merin Declaration# 12 Exhibit L to Merin Declaration# 13 Exhibit M to Merin Declaration# 14 Exhibit N to Merin Declaration# 15 Exhibit O to Merin Declaration)(Merin, Mark) (Filed on 2/12/2004) (Entered: 02/12/2004)
83 Proposed Order re 79 Plaintiffs' Motion to Compel Responses to Interrogatories by Alexis Bronson, Mary Bull, Marcy Corneau, Leigh Fleming, Lisa Giampaoli, Charli Johnson, Micky Mangosing, Laura Timbrook, Jonah Zern. (Merin, Mark) (Filed on 2/12/2004) (Entered: 02/12/2004)
84 CERTIFICATE OF SERVICE by Alexis Bronson, Mary Bull, Marcy Corneau, Leigh Fleming, Lisa Giampaoli, Charli Johnson, Micky Mangosing, Laura Timbrook, Jonah Zern re 81 Declaration in Support,, 82 Declaration in Support,,,, 83 Proposed Order,, 79 MOTION to Compel Responses to Interrogatories, 80 Notice (Other) Served on Defendants (Merin, Mark) (Filed on 2/12/2004) (Entered: 02/12/2004)
85 ORDER case C−04−0448SBA is not related to C03−1840CRB, C03−4022CRB, C03−3105 or C−03−4692. Signed by Judge Charles R. Breyer on 2/12/04. (be, COURT STAFF) (Filed on 2/20/2004) (Entered: 02/20/2004)
86 CLERK'S NOTICE Continuing Plaintiff's Motion to Compel Hearing from 3/31/04 at 10:30 a.m. to 4/14/2004 03:00 PM. (bpf, ) (Filed on 2/23/2004) (Entered: 02/23/2004)
87 MOTION to Certify Class filed by Alexis Bronson, Mary Bull, Marcy Corneau, Leigh Fleming, Lisa Giampaoli, Charli Johnson, Micky Mangosing, Laura Timbrook, Jonah Zern. Motion Hearing set for 4/9/2004 10:00 AM. (Merin, Mark) (Filed on 3/5/2004) (Entered: 03/05/2004)
88 Declaration of Mark E. Merin in Support of 87 Motion for Class Certification filed by Alexis Bronson, Mary Bull, Marcy Corneau, Leigh Fleming, Lisa Giampaoli, Charli Johnson, Micky Mangosing, Laura Timbrook, Jonah Zern. (Attachments: # 1 Exhibit Jail Policy E−03# 2 Exhibit Excerpts from Depo of Dyer 11/12/03# 3 Exhibit Memo of Captain Dyer, Bates No. Bull CCSF 00145# 4 Exhibit Strip Search Authorization Forms − Samples# 5 Exhibit Excerpts from Depo of Humphrey 12/2/03# 6 Exhibit Excerpts from Depo of Cotton 11/3/03# 7 Exhibit Excerpts from Depo of Roth 12/3/03# 8 Exhibit Excerpts from Depo of Dempsey

Case: 3:03-cv-01840-CRB As of: 07/05/2014 11:39 AM PDT 14 of 42

03/05/2004 03/05/2004 03/05/2004 03/05/2004
03/05/2004 03/05/2004 03/10/2004 03/10/2004 03/12/2004 03/12/2004

12/1/03# 9 Exhibit Excerpts from Depo of Zern 12/23/03# 10 Exhibit Declarations in Support of Plts' Mtn for Preliminary Injunction)(Related document(s) 87 ) (Merin, Mark) (Filed on 3/5/2004) (Entered: 03/05/2004)
89 Declaration of Andrew C. Schwartz in Support of Plaintiffs' Motion for Class Certification filed by Alexis Bronson, Mary Bull, Marcy Corneau, Leigh Fleming, Lisa Giampaoli, Charli Johnson, Micky Mangosing, Laura Timbrook, Jonah Zern. (Merin, Mark) (Filed on 3/5/2004) (Entered: 03/05/2004)
90 Proposed Order re 87 Granting Plaintiffs' Motion for Class Action as to Counts One, Three and Four of the First Amended Complaint filed by Alexis Bronson, Mary Bull, Marcy Corneau, Leigh Fleming, Lisa Giampaoli, Charli Johnson, Micky Mangosing, Laura Timbrook, Jonah Zern. (Merin, Mark) (Filed on 3/5/2004) (Entered: 03/05/2004)
91 CERTIFICATE OF SERVICE by Alexis Bronson, Mary Bull, Marcy Corneau, Leigh Fleming, Lisa Giampaoli, Charli Johnson, Micky Mangosing, Laura Timbrook, Jonah Zern re 87 MOTION to Certify Class, 88 Declaration in Support,,,, 89 Declaration in Support,, 90 Proposed Order, (Merin, Mark) (Filed on 3/5/2004) (Entered: 03/05/2004)
92 Renotice motion hearing NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGEMENT IN SUPPORT OF MEMORANDUM OF POINTS AND AUTHORITIES filed by City and County of San Francisco. Motion Hearing set for 4/9/2004 10:00 AM. (Attachments: # 1 Proposed Order GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGEMENT# 2 Signature Page (Declarations/Stipulations) DECLARATION OF INGRID M EVANS IN SUPPORT OF DEFENDANTS' MOTION FOR SUMMARY JUDGEMENT# 3 Exhibit A TO DEC OF IME SUPPORT OF MSJ# 4 Exhibit B−TO DEC OF IME SUPPORT OF DEFENDANTS' MSJ# 5 Exhibit C−DEC OF IME IN SUPPORT OF DEF MSJ# 6 Exhibit D−DEC OF IME IN SUPPORT OF DEF MSJ# 7 Exhibit F−DEC OF IME IN SPPORT OF DEF MSJ# 8 Exhibit F−DEC OF IME IN SUPPORT OF DEF MSJ# 9 Exhibit G−DEC OF IME IN SUPPORT OF DEF MSJ)(Evans, Ingrid) (Filed on 3/5/2004) (Entered: 03/05/2004)
93 MOTION for Judgment on the Pleadings on Cross−Complaint for Declaratory Relief filed by City and County of San Francisco, Michael Hennessey, San Francisco County Sheriff's Department. Motion Hearing set for 4/9/2004 10:00 AM. (Newdorf, David) (Filed on 3/5/2004) (Entered: 03/05/2004)
94 Proposed Order re 93 GRANTING MOTION FOR JUDGMENT ON THE PLEADINGS ON CROSS−COMPLAINT FOR DECLARATORY RELIEF by City and County of San Francisco. (Bonta, Robert) (Filed on 3/5/2004) (Entered: 03/05/2004)
95 Memorandum in Opposition re 79 MOTION to Compel Responses to Interrogatories filed by City and County of San Francisco, Michael Hennessey, San Francisco County Sheriff's Department. (Newdorf, David) (Filed on 3/10/2004) (Entered: 03/10/2004)
96 AFFIDAVIT in Opposition re 79 MOTION to Compel Responses to Interrogatories filed by City and County of San Francisco, Michael Hennessey, San Francisco County Sheriff's Department. (Attachments: # 1 Exhibit A (William Roth depo excerpts)# 2 Exhibit B (3/10/2004 letter to counsel)# 3 Exhibit C (2/11/2004 Letter to counsel))(Newdorf, David) (Filed on 3/10/2004) (Entered: 03/10/2004)
97 MOTION to Shorten Time to file Motion to Amend Class Action Complaint filed by Alexis Bronson, Mary Bull, Marcy Corneau, Leigh Fleming, Lisa Giampaoli, Charli Johnson, Micky Mangosing, Laura Timbrook, Jonah Zern. Motion Hearing set for 4/9/2004 10:00 AM. (Merin, Mark) (Filed on 3/12/2004) (Entered: 03/12/2004)
98 CERTIFICATE OF SERVICE by Alexis Bronson, Mary Bull, Marcy Corneau, Leigh Fleming, Lisa Giampaoli, Charli Johnson, Micky Mangosing, Laura Timbrook, Jonah Zern re 97 MOTION to Shorten Time to file Motion to Amend Class Action Complaint (Merin, Mark) (Filed on 3/12/2004) (Entered: 03/12/2004)

Case: 3:03-cv-01840-CRB As of: 07/05/2014 11:39 AM PDT 15 of 42

03/12/2004 03/12/2004
03/12/2004 03/12/2004 03/12/2004 03/15/2004 03/15/2004 03/16/2004 03/17/2004 03/17/2004 03/17/2004
03/17/2004

99 MOTION to Amend/Correct Class Action Complaint; Memorandum of Points and Authorities filed by Alexis Bronson, Mary Bull, Marcy Corneau, Leigh Fleming, Lisa Giampaoli, Charli Johnson, Micky Mangosing, Laura Timbrook, Jonah Zern. Motion Hearing set for 4/9/2004 10:00 AM. (Merin, Mark) (Filed on 3/12/2004) (Entered: 03/12/2004)
100 Declaration of Mark E. Merin in Support of 99 Plaintiffs' Motion to Amend Class Action Complaint filed by Alexis Bronson, Mary Bull, Marcy Corneau, Leigh Fleming, Lisa Giampaoli, Charli Johnson, Micky Mangosing, Laura Timbrook, Jonah Zern. (Attachments: # 1 Exhibit Exhibit A to Declaration of Merin# 2 Exhibit Exhibit B to Declaration of Merin# 3 Exhibit Exhibit C to Declaration of Merin# 4 Exhibit Exhibit D to Declaration of Merin)(Related document(s) 99 ) (Merin, Mark) (Filed on 3/12/2004) (Entered: 03/12/2004)
101 EXHIBITS re 100 MANUAL FILING NOTIFICATION −− COLLECTIVE EXHIBIT 1 TO PLAINTIFFS' SECOND AMENDED CLASS ACTION COMPLAINT filed by Alexis Bronson, Mary Bull, Marcy Corneau, Leigh Fleming, Lisa Giampaoli, Charli Johnson, Micky Mangosing, Laura Timbrook, Jonah Zern. (Related document(s) 100 ) (Merin, Mark) (Filed on 3/12/2004) (Entered: 03/12/2004)
102 Proposed Order re 99 Plaintiffs' Motion to Amend Class Action Complaint by Alexis Bronson, Mary Bull, Marcy Corneau, Leigh Fleming, Lisa Giampaoli, Charli Johnson, Micky Mangosing, Laura Timbrook, Jonah Zern. (Merin, Mark) (Filed on 3/12/2004) (Entered: 03/12/2004)
103 CERTIFICATE OF SERVICE by Alexis Bronson, Mary Bull, Marcy Corneau, Leigh Fleming, Lisa Giampaoli, Charli Johnson, Micky Mangosing, Laura Timbrook, Jonah Zern re 100 Declaration in Support,,, 101 Exhibits,, 102 Proposed Order,, 99 MOTION to Amend/Correct Class Action Complaint; Memorandum of Points and Authorities (Merin, Mark) (Filed on 3/12/2004) (Entered: 03/12/2004)
104 MOTION for Leave to File Excess Pages MISCELLANEOUS ADMINISTRATIVE REQUEST TO FILE AN OPPOSITION BRIEF IN EXCESS OF 15 PAGES RE: PLAINTIFFS' MOTION FOR CLASS CERTIFICATION; PROPOSED ORDER filed by City and County of San Francisco, Michael Hennessey, San Francisco County Sheriff's Department. (Newdorf, David) (Filed on 3/15/2004) (Entered: 03/15/2004)
105 AFFIDAVIT in Opposition re 97 MOTION to Shorten Time to file Motion to Amend Class Action Complaint Declaration of Ingrid M. Evans; Proposed Order filed by City and County of San Francisco. (Evans, Ingrid) (Filed on 3/15/2004) (Entered: 03/15/2004)
106 Collective EXHIBIT 1 to Plaintiffs' Second Amended Class Action Complaint, and Manual Filing Notification filed by Mary Bull. (mmt, COURT STAFF) (Filed on 3/16/2004) (Entered: 03/17/2004)
107 ORDER by Judge Charles R. Breyer granting 104 Motion for Leave to File Excess Pages (be, COURT STAFF) (Filed on 3/17/2004) (Entered: 03/17/2004)
108 Reply to Opposition re 79 Plaintiffs' Reply Brief in Support of Plaintiffs' Motion to Compel Responses to Interrogatories and Request for Sanctions filed by Alexis Bronson, Mary Bull, Marcy Corneau, Leigh Fleming, Lisa Giampaoli, Charli Johnson, Micky Mangosing, Laura Timbrook, Jonah Zern. (Merin, Mark) (Filed on 3/17/2004) (Entered: 03/17/2004)
109 Declaration of Jeffrey I. Schwarzschild in Support of 108 Plaintiffs' Reply Brief in Support of Plaintiffs' Motion to Compel Responses to Interrogatories and Request for Sanctions filed by Alexis Bronson, Mary Bull, Marcy Corneau, Leigh Fleming, Lisa Giampaoli, Charli Johnson, Micky Mangosing, Laura Timbrook, Jonah Zern. (Attachments: # 1 Exhibit Exhibit A to Schwarzschild Declaration# 2 Exhibit Exhibit B to Schwarzschild Declaration)(Related document(s) 108 ) (Merin, Mark) (Filed on 3/17/2004) (Entered: 03/17/2004)
110 CERTIFICATE OF SERVICE by Alexis Bronson, Mary Bull, Marcy Corneau, Leigh Fleming, Lisa Giampaoli, Charli Johnson, Micky Mangosing, Laura Timbrook, Jonah Zern re 108 Reply to Opposition,, 109 Declaration in Support,,

Case: 3:03-cv-01840-CRB As of: 07/05/2014 11:39 AM PDT 16 of 42

03/17/2004 03/19/2004 03/19/2004
03/19/2004 03/19/2004 03/19/2004 03/19/2004 03/19/2004
03/19/2004

(Merin, Mark) (Filed on 3/17/2004) (Entered: 03/17/2004)
111 ORDER by Judge Charles R. Breyer denying 97 Motion to Shorten Time, deferring ruling on 99 Motion to Amend/Correct (crblc2, COURT STAFF) (Filed on 3/17/2004) (Entered: 03/17/2004)
112 Memorandum in Opposition to Defendants' Motion for Summary Judgment filed by Alexis Bronson, Mary Bull, Marcy Corneau, Leigh Fleming, Lisa Giampaoli, Charli Johnson, Micky Mangosing, Laura Timbrook, Jonah Zern. (Merin, Mark) (Filed on 3/19/2004) (Entered: 03/19/2004)
113 DECLARATION of Mark E. Merin in Opposition to 112 Defendants' Motion for Summary Judgment filed by Alexis Bronson, Mary Bull, Marcy Corneau, Leigh Fleming, Lisa Giampaoli, Charli Johnson, Micky Mangosing, Laura Timbrook, Jonah Zern. (Attachments: # 1 Exhibit Exhibit 1 to Merin Declaration# 2 Exhibit Exhibit 2 to Merin Declaration# 3 Exhibit Exhibit 3 to Merin Declaration# 4 Exhibit Exhibit 4 to Merin Declaration# 5 Exhibit Exhibit 5 to Merin Declaration# 6 Exhibit Exhibit 6 to Merin Declaration# 7 Exhibit Exhibit 7 to Merin Declaration# 8 Exhibit Exhibit 8 to Merin Declaration# 9 Exhibit Exhibit 9 to Merin Declaration# 10 Exhibit Exhibit 10 to Merin Declaration# 11 Exhibit Exhibit 11 to Merin Declaration# 12 Exhibit Exhibit 12 to Merin Declaration# 13 Exhibit Exhibit 13 to Merin Declaration# 14 Exhibit Exhibit 14 to Merin Declaration)(Related document(s) 112 ) (Merin, Mark) (Filed on 3/19/2004) (Entered: 03/19/2004)
114 Memorandum in Opposition Defendants' Opposition to Plaintiffs' Motion For Class Certification filed by San Francisco County Sheriff's Department. (Newdorf, David) (Filed on 3/19/2004) (Entered: 03/19/2004)
115 Statement of Non−Opposition re 112 to Defendants' Motion for Summary Judgment filed by Alexis Bronson, Mary Bull, Marcy Corneau, Leigh Fleming, Lisa Giampaoli, Charli Johnson, Micky Mangosing, Laura Timbrook, Jonah Zern. (Related document(s) 112 ) (Merin, Mark) (Filed on 3/19/2004) (Entered: 03/19/2004)
116 OBJECTIONS to re 112 Plaintiffs' Evidentiary Objections to Incident Reports and Arrest Reports attached as Exhibits A through D to the Declaration of Ingrid Evans in Support of Defendants' Motion for Summary Judgment by Alexis Bronson, Mary Bull, Marcy Corneau, Leigh Fleming, Lisa Giampaoli, Charli Johnson, Micky Mangosing, Laura Timbrook, Jonah Zern. (Merin, Mark) (Filed on 3/19/2004) (Entered: 03/19/2004)
117 Proposed Order re 112 Denying in Part and Granting in Party Defendants' Motion for Summary Judgment by Alexis Bronson, Mary Bull, Marcy Corneau, Leigh Fleming, Lisa Giampaoli, Charli Johnson, Micky Mangosing, Laura Timbrook, Jonah Zern. (Merin, Mark) (Filed on 3/19/2004) (Entered: 03/19/2004)
118 Declaration of David B. Newdorf In Suport of Defendants' Opposition to Motion for Class Certification filed by San Francisco County Sheriff's Department. (Attachments: # 1 Exhibit A to Decl of DBN In Supp of Defs Opp to Mot. for Class Cert# 2 Exhibit B Decl of DBN in Supp of Defs Opp to Mot for Class Cert.# 3 Exhibit C to Decla of DBN in Sup of Defs Opp to Mot. for Class Certi.# 4 Exhibit D to Decla of DBN in Sup of Defs Opp to Mot. for Class Certi.# 5 Exhibit E to Decla of DBN in Sup of Defs Opp to Mot. for Class Certi.# 6 Exhibit F to Decla of DBN in Sup of Defs Opp to Mot. for Class Certi.# 7 Exhibit G to Decla of DBN in Sup of Defs Opp to Mot. for Class Certi.# 8 Exhibit H to Decla of DBN in Sup of Defs Opp to Mot. for Class Certi.# 9 Exhibit I Prt 1 of 2 to Decla of DBN in Sup of Defs Opp to Mot. for Class Certi.# 10 Exhibit I Part 2 to Decla of DBN in Sup of Defs Opp to Mot. for Class Certi.)(Newdorf, David) (Filed on 3/19/2004) (Entered: 03/19/2004)
119 DECLARATION of Ingrid M. Evans In Opposition to Motion For Preliminary Injunction filed by San Francisco County Sheriff's Department. (Attachments: # 1 Exhibit A through L declaration to opp. to mtn. for prelim. injuction# 2 Exhibit M through O decla. to opp. to mtn. prelim. injuction)(Evans, Ingrid) (Filed on 3/19/2004) (Entered: 03/19/2004)

Case: 3:03-cv-01840-CRB As of: 07/05/2014 11:39 AM PDT 17 of 42

03/19/2004 03/19/2004 03/19/2004 03/19/2004 03/19/2004 03/19/2004 03/19/2004 03/22/2004 03/23/2004
03/24/2004 03/26/2004
03/26/2004
03/26/2004 03/26/2004 03/26/2004

120 Request for Judicial Notice filed by Mary Bull. (Schwartz, Andrew) (Filed on 3/19/2004) (Entered: 03/19/2004)
121 Proposed Order Denying Defendants' Motion for Judgment on the Pleadings by Mary Bull. (Schwartz, Andrew) (Filed on 3/19/2004) (Entered: 03/19/2004)
122 DECLARATION of Undersigned Jan Dempsey in Opposition to Motion for Preliminary Injuction filed by San Francisco County Sheriff's Department. (Attachments: # 1 Exhibit 1 throgh 8 Dempsey Declaration)(Evans, Ingrid) (Filed on 3/19/2004) (Entered: 03/19/2004)
123 DECLARATION of Michael Hennessey In Opposition to Motion For Preliminary Injunction filed by San Francisco County Sheriff's Department. (Attachments: # 1 Exhibit A 7 B to Hennessey declaration)(Evans, Ingrid) (Filed on 3/19/2004) (Entered: 03/19/2004)
124 Memorandum in Opposition to Defendants' Motion for Judgment on the Pleadings filed by Mary Bull. (Schwartz, Andrew) (Filed on 3/19/2004) (Entered: 03/19/2004)
125 Memorandum in Opposition to Motion For Preliminary Injunction filed by City and County of San Francisco, Michael Hennessey, San Francisco County Sheriff's Department. (Evans, Ingrid) (Filed on 3/19/2004) (Entered: 03/19/2004)
126 Minute Entry: Motion Hearing on Plaintiff's motion to compel inspection held on 3/19/2004 before Edward M. Chen (Date Filed: 3/19/2004). Plaintiff's Motion is granted. (Tape #FTR031904 (4:13p).) (bpf, COURT STAFF) (Date Filed: 3/19/2004) (Entered: 03/19/2004)
127 AMENDED DOCUMENT by San Francisco County Sheriff's Department. Amendment to 125 Memorandum in Opposition Corrected Table of Contents and Table of Authorities to Defendants' Opposition to Motion for Preliminary Injunction. (Evans, Ingrid) (Filed on 3/22/2004) (Entered: 03/22/2004)
128 MOTION for Leave to File Excess Pages − Plaintiffs' Miscellaneous Administrative Request for Leave to File a 25 Page Reply Brief to Defendants' Opposition to Plaintiffs' Motion for Class Certification; [proposed] Order filed by Alexis Bronson, Mary Bull, Marcy Corneau, Leigh Fleming, Lisa Giampaoli, Charli Johnson, Micky Mangosing, Laura Timbrook, Jonah Zern. Motion Hearing set for 4/9/2004 10:00 AM. (Merin, Mark) (Filed on 3/23/2004) (Entered: 03/23/2004)
129 ORDER by Judge Charles R. Breyer granting 128 Motion for Leave to File Excess Pages (be, COURT STAFF) (Filed on 3/24/2004) (Entered: 03/24/2004)
130 Declaration of Mark E. Merin in Support of Plaintiffs' Reply to Defendants' Opposition to Plaintiffs' Motion for Class Certification filed by Alexis Bronson, Mary Bull, Marcy Corneau, Leigh Fleming, Lisa Giampaoli, Charli Johnson, Micky Mangosing, Laura Timbrook, Jonah Zern. (Attachments: # 1 Exhibit Exhibit A to Merin Declaration# 2 Exhibit Exhibit B to Merin Declaration# 3 Exhibit Exhibit C to Merin Declaration)(Merin, Mark) (Filed on 3/26/2004) (Entered: 03/26/2004)
131 Reply to Opposition : Plaintiffs' Reply to Defendants' Opposition to Plaintiffs' Motion for Class Certification filed by Alexis Bronson, Mary Bull, Marcy Corneau, Leigh Fleming, Lisa Giampaoli, Charli Johnson, Micky Mangosing, Laura Timbrook, Jonah Zern. (Merin, Mark) (Filed on 3/26/2004) (Entered: 03/26/2004)
132 Reply to Opposition to Defendants' Motion for Summary Judgment filed by City and County of San Francisco, Michael Hennessey, San Francisco County Sheriff's Department. (Newdorf, David) (Filed on 3/26/2004) (Entered: 03/26/2004)
133 Reply to Opposition re Motion for Preliminary Injunction filed by Mary Bull. (Schwartz, Andrew) (Filed on 3/26/2004) (Entered: 03/26/2004)
134 Declaration of Thom Seaton In Support of Plaintiff's Reply Memorandum in Support of Motion for Preliminary Injunction filed by Mary Bull. (Attachments: # 1 Exhibit Exhibit 1 to Seaton Declaration# 2 Exhibit Exhibit 2 to Seaton

Case: 3:03-cv-01840-CRB As of: 07/05/2014 11:39 AM PDT 18 of 42

03/26/2004 03/26/2004 03/26/2004 03/26/2004 04/07/2004 04/07/2004 04/08/2004 04/09/2004
04/09/2004 04/12/2004

Declaration# 3 Exhibit Exhibit 3 to Seaton Declaration# 4 Exhibit Exhibit 4 to Seaton Declaration# 5 Exhibit Exhibit 5 to Seaton Declaration# 6 Exhibit Exhibit 6 to Seaton Declaration# 7 Exhibit Exhibit 7 to Seaton Declaration# 8 Exhibit Exhibit 8 to Seaton Declaration# 9 Exhibit Exhibit 9 to Seaton Declaration# 10 Exhibit Exhibit 10 to Seaton Declaration# 11 Exhibit Exhibit 11 to Seaton Declaration# 12 Exhibit Exhibit 12 to Seaton Declaration# 13 Exhibit Exhibit 13 to Seaton Declaration# 14 Exhibit Exhibit 14 to Seaton Declaration# 15 Exhibit Exhibit 15 to Seaton Declaration# 16 Exhibit Exhibit 16 to Seaton Declaration# 17 Exhibit Exhibit 17 to Seaton Declaration# 18 Exhibit Exhibit 19 to Seaton Declaration)(Schwartz, Andrew) (Filed on 3/26/2004) (Entered: 03/26/2004)
135 EXHIBITS Manual Filing Notification of Exhibit 18 to Declaration of Thom Seaton in Support of Reply Memorandum in Support of Motion for Preliminary Injunction filed by Mary Bull. (Schwartz, Andrew) (Filed on 3/26/2004) (Entered: 03/26/2004)
136 RESPONSE in Support re 93 MOTION for Judgment on the Pleadings on Cross−Complaint for Declaratory Relief filed by City and County of San Francisco, Michael Hennessey, San Francisco County Sheriff's Department, San Francisco County Sheriff's Deputies. (Evans, Ingrid) (Filed on 3/26/2004) (Entered: 03/26/2004)
137 RESPONSE in Support Response to Evidence Objection filed by City and County of San Francisco, Michael Hennessey, San Francisco County Sheriff's Department. (Newdorf, David) (Filed on 3/26/2004) (Entered: 03/26/2004)
138 EXHIBITS re 92 Errata to Declaration of Ingrid M. Evans In Support of Defendants' Motion for Summary Judgment filed by City and County of San Francisco, Michael Hennessey, San Francisco County Sheriff's Department. (Attachments: # 1 Errata Correct Ex. A to Evans Decl. ISO Mot. Sum Judg.)(Related document(s) 92 ) (Newdorf, David) (Filed on 3/26/2004) (Entered: 03/26/2004)
139 STATEMENT OF RECENT DECISION pursuant to Civil Local Rule 7−3.d Relating to Motions to be Filed on April 9, 2004 filed by City and County of San Francisco. (Evans, Ingrid) (Filed on 4/7/2004) (Entered: 04/07/2004)
140 NOTICE by Alexis Bronson, Mary Bull, Marcy Corneau, Leigh Fleming, Lisa Giampaoli, Charli Johnson, Micky Mangosing, Laura Timbrook, Jonah Zern Plaintiffs' Notice of Intent to Cite Case at Hearing (Merin, Mark) (Filed on 4/7/2004) (Entered: 04/07/2004)
141 RESPONSE to Defendant's Statement of Recent Decision Re Venegas v. County of Los Angeles by Mary Bull. (Schwartz, Andrew) (Filed on 4/8/2004) (Entered: 04/08/2004)
142 Minute Entry: Motion Hearing held on 4/9/2004 before Charles R. Breyer (Date Filed: 4/9/2004) re 93 MOTION for Judgment on the Pleadings on Cross−Complaint for Declaratory Relief filed by City and County of San Francisco, San Francisco County Sheriff's Department, Michael Hennessey, 87 MOTION to Certify Class filed by Mary Bull, Jonah Zern, Lisa Giampaoli, Marcy Corneau, Alexis Bronson, Micky Mangosing, Charli Johnson, Leigh Fleming, Laura Timbrook, 99 MOTION to Amend/Correct Class Action Complaint; Memorandum of Points and Authorities filed by Mary Bull, Jonah Zern, Lisa Giampaoli, Marcy Corneau, Alexis Bronson, Micky Mangosing, Charli Johnson, Leigh Fleming, Laura Timbrook. (Court Reporter Carolyn M. Mann.) (be, COURT STAFF) (Date Filed: 4/9/2004) (Entered: 04/09/2004)
Set/Reset Deadlines as to 93 MOTION for Judgment on the Pleadings on Cross−Complaint for Declaratory Relief, 99 MOTION to Amend/Correct Class Action Complaint; Memorandum of Points and Authorities, 87 MOTION to Certify Class. Motion Hearing set for 4/12/2004 09:00 AM. (be, COURT STAFF) (Filed on 4/9/2004) (Entered: 04/09/2004)
143 Minute Entry: Motion Hearing held on 4/12/2004 before Charles R. Breyer (Date Filed: 4/12/2004) re 93 MOTION for Judgment on the Pleadings on Cross−Complaint for Declaratory Relief filed by City and County of San

Case: 3:03-cv-01840-CRB As of: 07/05/2014 11:39 AM PDT 19 of 42

04/13/2004
04/14/2004 04/15/2004 04/23/2004 04/23/2004 04/23/2004 04/23/2004 04/23/2004 04/23/2004

Francisco, San Francisco County Sheriff's Department, Michael Hennessey, 87 MOTION to Certify Class filed by Mary Bull, Jonah Zern, Lisa Giampaoli, Marcy Corneau, Alexis Bronson, Micky Mangosing, Charli Johnson, Leigh Fleming, Laura Timbrook, 99 MOTION to Amend/Correct Class Action Complaint; Memorandum of Points and Authorities filed by Mary Bull, Jonah Zern, Lisa Giampaoli, Marcy Corneau, Alexis Bronson, Micky Mangosing, Charli Johnson, Leigh Fleming, Laura Timbrook, 60 First MOTION for Preliminary Injunction filed by Mary Bull. (Court Reporter Carolyn M. Mann.) (be, COURT STAFF) (Date Filed: 4/12/2004) (Entered: 04/13/2004)
144 Minute Entry: Motion Hearing held on 4/13/2004 before Charles R. Breyer (Date Filed: 4/13/2004) re 93 MOTION for Judgment on the Pleadings on Cross−Complaint for Declaratory Relief filed by City and County of San Francisco, San Francisco County Sheriff's Department, Michael Hennessey, 87 MOTION to Certify Class filed by Mary Bull, Jonah Zern, Lisa Giampaoli, Marcy Corneau, Alexis Bronson, Micky Mangosing, Charli Johnson, Leigh Fleming, Laura Timbrook, 99 MOTION to Amend/Correct Class Action Complaint; Memorandum of Points and Authorities filed by Mary Bull, Jonah Zern, Lisa Giampaoli, Marcy Corneau, Alexis Bronson, Micky Mangosing, Charli Johnson, Leigh Fleming, Laura Timbrook, 60 First MOTION for Preliminary Injunction filed by Mary Bull. (Court Reporter Carolyn M. Mann.) (be, COURT STAFF) (Date Filed: 4/13/2004) (Entered: 04/13/2004)
145 Minute Entry: Motion Hearing held on 4/14/2004 before Edward M. Chen (Date Filed: 4/14/2004) re 79 MOTION to Compel Responses to Interrogatories filed by Mary Bull, Jonah Zern, Lisa Giampaoli, Marcy Corneau, Alexis Bronson, Micky Mangosing, Charli Johnson, Leigh Fleming, Laura Timbrook. (Court Reporter Sahar McVickar.) Motion is granted in part and denied in part. Court to issue order. (bpf, COURT STAFF) (Date Filed: 4/14/2004) (Entered: 04/14/2004)
146 ORDER by Magistrate Judge Edward M. Chen granting 79 Plaintiffs' Motion to Compel Responses to Interrogatories. (emcsec, COURT STAFF) (Filed on 4/15/2004) (Entered: 04/15/2004)
147 MOTION for Sanctions filed by Alexis Bronson, Mary Bull, Marcy Corneau, Leigh Fleming, Lisa Giampaoli, Charli Johnson, Micky Mangosing, Laura Timbrook, Jonah Zern. Motion Hearing set for 6/2/2004 10:30 AM. (Merin, Mark) (Filed on 4/23/2004) (Entered: 04/23/2004)
148 Declaration of Jeffrey I. Schwarzschild in Support of 147 Plaintiffs' Motion for Sanctions filed by Alexis Bronson, Mary Bull, Marcy Corneau, Leigh Fleming, Lisa Giampaoli, Charli Johnson, Micky Mangosing, Laura Timbrook, Jonah Zern. (Attachments: # 1 Exhibit to Schwarzschild Declaration)(Related document(s) 147 ) (Merin, Mark) (Filed on 4/23/2004) (Entered: 04/23/2004)
149 Proposed Order re 147 Granting Plaintiffs' Motion for Sanctions by Alexis Bronson, Mary Bull, Marcy Corneau, Leigh Fleming, Lisa Giampaoli, Charli Johnson, Micky Mangosing, Laura Timbrook, Jonah Zern. (Merin, Mark) (Filed on 4/23/2004) (Entered: 04/23/2004)
150 Brief re 87 Opposition to Class Certification Issues filed by City and County of San Francisco, Michael Hennessey, San Francisco County Sheriff's Department. (Related document(s) 87 ) (Newdorf, David) (Filed on 4/23/2004) (Entered: 04/23/2004)
151 Declaration of Sheriff Michael Hennessey in Support of 150 Opposition to Class Certification filed by City and County of San Francisco, Michael Hennessey, San Francisco County Sheriff's Department. (Related document(s) 150 ) (Newdorf, David) (Filed on 4/23/2004) (Entered: 04/23/2004)
152 Declaration of David B. Newdorf in Support of 150 Opposition to Class Certification filed by City and County of San Francisco, Michael Hennessey, San Francisco County Sheriff's Department. (Attachments: # 1 Exhibit Exhibits A−H)(Related document(s) 150 ) (Newdorf, David) (Filed on 4/23/2004) (Entered: 04/23/2004)

Case: 3:03-cv-01840-CRB As of: 07/05/2014 11:39 AM PDT 20 of 42

04/26/2004
04/27/2004 04/29/2004 05/07/2004 05/13/2004 05/14/2004 05/14/2004
06/04/2004 06/08/2004 06/10/2004 06/28/2004
06/28/2004 07/02/2004 07/06/2004

153 MOTION to Withdraw 149 Proposed Order, 147 MOTION for Sanctions, 148 Declaration in Support, filed by Alexis Bronson, Mary Bull, Marcy Corneau, Leigh Fleming, Lisa Giampaoli, Charli Johnson, Micky Mangosing, Laura Timbrook, Jonah Zern. Motion Hearing set for 6/2/2004 10:30 AM. (Merin, Mark) (Filed on 4/26/2004) (Entered: 04/26/2004)
154 STIPULATION Protective Order re: Confidential Inmate Documents and Information by City and County of San Francisco, Michael Hennessey, San Francisco County Sheriff's Department. (Newdorf, David) (Filed on 4/27/2004) (Entered: 04/27/2004)
155 STIPULATED PROTECTIVE ORDER. Signed by Judge Edward M. Chen on 4/29/04. (bpf, COURT STAFF) (Filed on 4/29/2004) (Entered: 04/29/2004)
156 Brief : Plaintiffs' Post Hearing Brief regarding Class Certification Issues filed by Alexis Bronson, Mary Bull, Marcy Corneau, Leigh Fleming, Lisa Giampaoli, Charli Johnson, Micky Mangosing, Laura Timbrook, Jonah Zern. (Merin, Mark) (Filed on 5/7/2004) (Entered: 05/07/2004)
157 ORDER REFERRING CASE to Magistrate Judge Elizabeth D. Laporte for Settlement. Signed by Judge Charles R. Breyer on 5/13/04. (be, COURT STAFF) (Filed on 5/13/2004) (Entered: 05/13/2004)
158 Brief re 87 Defendants' Post Hearing Reply Brief Regarding Class Certification Issues filed by City and County of San Francisco, Michael Hennessey, San Francisco County Sheriff's Department. (Related document(s) 87 ) (Newdorf, David) (Filed on 5/14/2004) (Entered: 05/14/2004)
159 Declaration of David B. Newdorf in Support of 158 Defendants' Post Hearing Reply Brief Regarding Class Certification Issues filed by City and County of San Francisco, Michael Hennessey, San Francisco County Sheriff's Department. (Attachments: # 1)(Related document(s) 158 ) (Newdorf, David) (Filed on 5/14/2004) (Entered: 05/14/2004)
160 Letter Brief re 157 Joint Request of Parties to Hold Reference for Settlement Conference in Abeyance filed by City and County of San Francisco, Michael Hennessey, San Francisco County Sheriff's Department. (Related document(s) 157 ) (Newdorf, David) (Filed on 6/4/2004) (Entered: 06/04/2004)
161 ORDER that the reference for a settlement conference be held in abeyance, ORDER REFERRING CASE to Private ADR, Case removed from arbitration. Signed by Judge Charles R. Breyer on 6/07/04. (be, COURT STAFF) (Filed on 6/8/2004) (Entered: 06/08/2004)
162 ORDER by Judge Charles R. Breyer denying 60 Motion for Preliminary Injunction, granting 87 Motion to Certify Class, denying 93 Motion for Judgment on the Pleadings, granting in part and denying in part Motion for Summary Judgment. (crblc2, COURT STAFF) (Filed on 6/10/2004) (Entered: 06/10/2004)
Petition for Pemission to Appeal Class Certification Order 162 and Proposed Order Received, filed by City and County of San Francisco, Michael Hennessey, San Francisco County Sheriff's Department. (mmt, COURT STAFF) (Filed on 6/28/2004) Modified on 8/27/2004 (mmt, COURT STAFF).***SEE DOC. 173 CORRECTED ENTRY*** (Entered: 07/01/2004)
173 MOTION Permission to Appeal Class Certification Order re 162 filed by City and County of San Francisco, Michael Hennessey, San Francisco County Sheriff's Department, San Francisco County Sheriff's Deputies. (mmt, COURT STAFF) (Filed on 6/28/2004) (Entered: 08/27/2004)
163 CLERK'S NOTICE re: Failure to E−File Petition re Appeal Class Certification and Proposed Order, filed by SF City and County. (mmt, COURT STAFF) (Filed on 7/2/2004) (Entered: 07/02/2004)
164 OBJECTIONS to re [] Plaintiffs' Opposition to Defendants' Petition for Permission to Appeal Class Certification Order by Alexis Bronson, Mary Bull, Marcy Corneau, Leigh Fleming, Lisa Giampaoli, Charli Johnson, Micky Mangosing, Laura Timbrook, Jonah Zern. (Merin, Mark) (Filed on 7/6/2004) (Entered:

Case: 3:03-cv-01840-CRB As of: 07/05/2014 11:39 AM PDT 21 of 42

07/22/2004 07/22/2004
07/22/2004 07/22/2004 08/04/2004 08/06/2004 08/13/2004 08/20/2004 09/03/2004
09/30/2004 09/30/2004

07/06/2004)
165 MOTION FOR ORDER APPROVING AND DIRECTING NOTICE OF PENDENCY OF CLASS ACTION (NOTICE &POINTS AND AUTHORITIES) filed by Alexis Bronson, Mary Bull, Marcy Corneau, Leigh Fleming, Lisa Giampaoli, Charli Johnson, Micky Mangosing, Laura Timbrook, Jonah Zern. Motion Hearing set for 8/27/2004 10:00 AM. (Merin, Mark) (Filed on 7/22/2004) (Entered: 07/22/2004)
166 Declaration of Mark E. Merin in Support of 165 PLAINTIFFS' MOTION FOR ORDER APPROVING AND DIRECTING NOTICE OF PENDENCY OF CLASS ACTION filed by Alexis Bronson, Mary Bull, Marcy Corneau, Leigh Fleming, Lisa Giampaoli, Charli Johnson, Micky Mangosing, Laura Timbrook, Jonah Zern. (Attachments: # 1 Exhibit One to Merin Declaration# 2 Exhibit Two to Merin Declaration)(Related document(s) 165 ) (Merin, Mark) (Filed on 7/22/2004) (Entered: 07/22/2004)
167 Proposed Order re 165 , 166 APPROVING AND DIRECTING NOTICE OF PENDENCY OF CLASS ACTION by Alexis Bronson, Mary Bull, Marcy Corneau, Leigh Fleming, Lisa Giampaoli, Charli Johnson, Micky Mangosing, Laura Timbrook, Jonah Zern. (Attachments: # 1 Appendix Attachment A)(Merin, Mark) (Filed on 7/22/2004) (Entered: 07/22/2004)
168 CERTIFICATE OF SERVICE by Alexis Bronson, Mary Bull, Marcy Corneau, Leigh Fleming, Lisa Giampaoli, Charli Johnson, Micky Mangosing, Laura Timbrook, Jonah Zern re 165 MOTION FOR ORDER APPROVING AND DIRECTING NOTICE OF PENDENCY OF CLASS ACTION (NOTICE &POINTS AND AUTHORITIES), 166 Declaration in Support,, 167 Proposed Order, (Merin, Mark) (Filed on 7/22/2004) (Entered: 07/22/2004)
169 STIPULATION re 165 MOTION FOR ORDER APPROVING AND DIRECTING NOTICE OF PENDENCY OF CLASS ACTION (NOTICE &POINTS AND AUTHORITIES), 166 Declaration in Support,, 167 Proposed Order,, 168 Certificate of Service, STIPULATION TO CONTINUE HEARING by Mary Bull. (Merin, Mark) (Filed on 8/4/2004) (Entered: 08/04/2004)
170 ORDER Setting Hearing on Motion 165 MOTION FOR ORDER APPROVING AND DIRECTING NOTICE OF PENDENCY OF CLASS ACTION (NOTICE &POINTS AND AUTHORITIES): Motion Hearing set for 9/3/2004 10:00 AM.. Signed by Judge Charles R. Breyer on 8/05/04. (be, COURT STAFF) (Filed on 8/6/2004) (Entered: 08/06/2004)
171 Memorandum in Opposition to Plaintiff's Motion for Order Approving and Directing Notice of Pendency of Class Action filed by City and County of San Francisco, Michael Hennessey, San Francisco County Sheriff's Department. (Newdorf, David) (Filed on 8/13/2004) (Entered: 08/13/2004)
172 Reply to Opposition re 165 Plaintiffs' Motion for Order Approving and Directing Notice of Pendency of Class Action filed by Alexis Bronson, Mary Bull, Marcy Corneau, Leigh Fleming, Lisa Giampaoli, Charli Johnson, Micky Mangosing, Laura Timbrook, Jonah Zern. (Merin, Mark) (Filed on 8/20/2004) (Entered: 08/20/2004)
174 Minute Entry: Motion Hearing held on 9/3/2004 before Charles R. Breyer (Date Filed: 9/3/2004) re 165 MOTION FOR ORDER APPROVING AND DIRECTING NOTICE OF PENDENCY OF CLASS ACTION (NOTICE &POINTS AND AUTHORITIES) filed by Mary Bull, Jonah Zern, Lisa Giampaoli, Marcy Corneau, Alexis Bronson, Micky Mangosing, Charli Johnson, Leigh Fleming, Laura Timbrook. (Court Reporter Joan Columbini.) (be, COURT STAFF) (Date Filed: 9/3/2004) (Entered: 09/03/2004)
175 NOTICE of Related Case (Newdorf, David) (Filed on 9/30/2004) (Entered: 09/30/2004)
176 NOTICE of Related Case C 04−3729 EDL by City and County of San Francisco, Michael Hennessey, San Francisco Sheriff's Department. (slh, COURT STAFF) (Filed on 9/30/2004) (Entered: 10/05/2004)

Case: 3:03-cv-01840-CRB As of: 07/05/2014 11:39 AM PDT 22 of 42

10/04/2004 10/07/2004 11/02/2004 11/02/2004
11/02/2004 11/02/2004 11/23/2004 11/24/2004 11/24/2004 12/10/2004 12/10/2004 12/22/2004

177 ORDER of USCA denying the petition for permission to appeal the district court's 6/10/04 order granting class action certification. (slh, COURT STAFF) (Filed on 10/4/2004) (Entered: 10/05/2004)
178 ORDER RELATING CASE C−04−3729EDL to lead case C−03−1840CRB. Signed by Judge Charles R. Breyer on 10/06/04. (be, COURT STAFF) (Filed on 10/7/2004) (Entered: 10/07/2004)
179 Second MOTION to Compel Responses to Interrogatories; Points and Authorities; and Request for Sanctions filed by Alexis Bronson, Mary Bull, Marcy Corneau, Leigh Fleming, Lisa Giampaoli, Charli Johnson, Micky Mangosing, Laura Timbrook, Jonah Zern. Motion Hearing set for 12/15/2004 10:30 AM. (Merin, Mark) (Filed on 11/2/2004) (Entered: 11/02/2004)
180 Declaration of Mark E. Merin in Support of 179 Plaintiffs' Second Motion to Compel Responses to Interrogatories; and Request for Sanctions filed by Alexis Bronson, Mary Bull, Marcy Corneau, Leigh Fleming, Lisa Giampaoli, Charli Johnson, Micky Mangosing, Laura Timbrook, Jonah Zern. (Attachments: # 1 Exhibit Exhibit A to Merin Declaration# 2 Exhibit Exhibit B to Merin Declaration# 3 Exhibit Exhibit C to Merin Declaration# 4 Exhibit Exhibit D to Merin Declaration# 5 Exhibit Exhibit E to Merin Declaration# 6 Exhibit Exhibit F to Merin Declaration# 7 Exhibit Exhibit G to Merin Declaration# 8 Exhibit Exhibit H to Merin Declaration# 9 Exhibit Exhibit I to Merin Declaration)(Related document(s) 179 ) (Merin, Mark) (Filed on 11/2/2004) (Entered: 11/02/2004)
181 Declaration of Jeffrey I. Schwarzschild in Support of 179 Plaintiffs' Second Motion to Compel Responses to Interrogatories; and Request for Sanctions filed by Alexis Bronson, Mary Bull, Marcy Corneau, Leigh Fleming, Lisa Giampaoli, Charli Johnson, Micky Mangosing, Laura Timbrook, Jonah Zern. (Related document(s) 179 ) (Merin, Mark) (Filed on 11/2/2004) (Entered: 11/02/2004)
182 Proposed Order re 179 Granting Plaintiffs' Second Motion to Compel Responses to Interrogatories; and Request for Sanctions by Alexis Bronson, Mary Bull, Marcy Corneau, Leigh Fleming, Lisa Giampaoli, Charli Johnson, Micky Mangosing, Laura Timbrook, Jonah Zern. (Merin, Mark) (Filed on 11/2/2004) (Entered: 11/02/2004)
183 STIPULATION and Proposed Order Moving Hearing Date and Setting Briefing Schedule re: Plaintiff's Second Motion to Compel by Michael Hennessey, San Francisco County Sheriff's Deputies, City and County of San Francisco, San Francisco County Sheriff's Department. (Newdorf, David) (Filed on 11/23/2004) (Entered: 11/23/2004)
184 STIPULATION AND ORDER MOVING HEARING DATE AND SETTING BRIEFING SCHEDULE RE PLAINTIFF'S SECOND MOTION TO COMPEL. Signed by Judge Edward M. Chen on 11/24/04. (bpf, COURT STAFF) (Filed on 11/24/2004) (Entered: 11/24/2004)
Set/Reset Hearings: Motion Hearing set for 1/5/2005 10:30 AM. (bpf, COURT STAFF) (Filed on 11/24/2004) (Entered: 11/24/2004)
185 Memorandum in Opposition to Plaintiffs' Second Motion to Compel Responses to Interrogatories and Request for Sanctions filed byMichael Hennessey, City and County of San Francisco, San Francisco County Sheriff's Department. (Newdorf, David) (Filed on 12/10/2004) (Entered: 12/10/2004)
186 AFFIDAVIT in Opposition Declaration of David B. Newdorf In Support Of Opposition to Plaintiffs' Second Motion to Compel filed byMichael Hennessey, City and County of San Francisco, San Francisco County Sheriff's Department. (Newdorf, David) (Filed on 12/10/2004) (Entered: 12/10/2004)
187 Reply Memorandum − Plaintiffs' Reply Brief in Support of Plaintiffs' Second Motion to Compel Responses to Interrogatories and Request for Sanctions re: Doc. No. 179 filed byLaura Timbrook, Leigh Fleming, Charli Johnson, Micky Mangosing, Alexis Bronson, Marcy Corneau, Lisa Giampaoli, Mary Bull, Jonah Zern. (Merin, Mark) (Filed on 12/22/2004) (Entered: 12/22/2004)

Case: 3:03-cv-01840-CRB As of: 07/05/2014 11:39 AM PDT 23 of 42

12/22/2004 01/05/2005
01/05/2005 01/21/2005 01/27/2005 01/31/2005 06/24/2005 06/24/2005
06/24/2005 06/24/2005
06/27/2005

188 Declaration of Mark E. Merin in Support of Plaintiffs' Reply Brief in Support of Plaintiffs' Second Motion to Compel Responses to Interrogatories; and Request for Sanctions re: Doc. No. 179 filed byLaura Timbrook, Leigh Fleming, Charli Johnson, Micky Mangosing, Alexis Bronson, Marcy Corneau, Lisa Giampaoli, Mary Bull, Jonah Zern. (Attachments: # 1 Exhibit Exhibit A to Merin Declaration)(Merin, Mark) (Filed on 12/22/2004) (Entered: 12/22/2004)
189 Minute Entry: Motion Hearing held on 1/5/2005 before Edward M. Chen (Date Filed: 1/5/2005) re 179 Second MOTION to Compel Responses to Interrogatories; Points and Authorities; and Request for Sanctions filed by Mary Bull,, Jonah Zern,, Lisa Giampaoli,, Marcy Corneau,, Alexis Bronson,, Micky Mangosing,, Charli Johnson,, Leigh Fleming,, Laura Timbrook. Motion is granted. Court to issue order (Court Reporter Jeanne Bishop.) (bpf, COURT STAFF) (Date Filed: 1/5/2005) (Entered: 01/05/2005)
190 ORDER GRANTING PLAINTIFFS' SECOND MOTION TO COMPEL RESPONSES TO INTERROGATORIES AND REQUEST FOR SANCTIONS. Signed by Judge Edward M. Chen on January 5, 2005. (emclc1, COURT STAFF) (Filed on 1/5/2005) (Entered: 01/05/2005)
191 NOTICE of Related Case (Haddad, Michael) (Filed on 1/21/2005) (Entered: 01/21/2005)
192 Response Defendants City and County of San Francisco's, Juvenile Probation Departments', and Tim Diestil's Opposition to Plaintiff's Notice of Related Cases [Civil Local Rule 3−12(D)] (Case No. C04−4914 MJJ) byCity and County of San Francisco. (Choi, Jennifer) (Filed on 1/27/2005) (Entered: 01/27/2005)
193 ORDER re 191 Notice of Related Case filed by Marie Doe, C−04−4914MJJ IS NOT RELATED to C−03−1840CRB, C−03−3105CRB, C−03−4022CRB and C−04−3729. Signed by Judge Charles R. Breyer on 1/31/05. (be, COURT STAFF) (Filed on 1/31/2005) (Entered: 01/31/2005)
194 MOTION for Partial Summary Judgment filed by Laura Timbrook, Leigh Fleming, Micky Mangosing, Alexis Bronson, Marcy Corneau, Lisa Giampaoli, Mary Bull, Jonah Zern. Motion Hearing set for 8/5/2005 10:00 AM in Courtroom 8, 19th Floor, San Francisco. (Attachments: # 1 Memorandum of Points and Authorities# 2 Proposed Order Granting Plaintiffs' Motion for Partial Summary Judgment)(Merin, Mark) (Filed on 6/24/2005) (Entered: 06/24/2005)
195 Declaration of Mark E. Merin in Support of 194 MOTION for Partial Summary Judgment filed byLaura Timbrook, Leigh Fleming, Micky Mangosing, Alexis Bronson, Marcy Corneau, Lisa Giampaoli, Mary Bull, Jonah Zern. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7# 8 Exhibit 8# 9 Exhibit 9# 10 Exhibit 10# 11 Exhibit 11# 12 Exhibit 12# 13 Exhibit 13# 14 Exhibit 14# 15 Exhibit 15# 16 Exhibit 16# 17 Exhibit 17# 18 Exhibit 18# 19 Exhibit 19# 20 Exhibit 20# 21 Exhibit 21# 22 Exhibit 22# 23 Exhibit 23# 24 Exhibit 24# 25 Exhibit 25# 26 Exhibit 26# 27 Exhibit 27# 28 Exhibit 28# 29 Exhibit 29# 30 Exhibit 30# 31 Exhibit 31# 32 Exhibit 32# 33 Exhibit 33# 34 Exhibit 34)(Related document(s) 194 ) (Merin, Mark) (Filed on 6/24/2005) (Entered: 06/24/2005)
196 Declaration of Mary Bull in Support of 194 MOTION for Partial Summary Judgment filed byLaura Timbrook, Leigh Fleming, Micky Mangosing, Alexis Bronson, Marcy Corneau, Lisa Giampaoli, Mary Bull, Jonah Zern. (Related document(s) 194 ) (Merin, Mark) (Filed on 6/24/2005) (Entered: 06/24/2005)
197 MOTION Plaintiffs' Miscellaneous Administrative Request for Leave to File Up To a 40 Page Brief in Support of Their Motion for Partial Summary Judgment; Declaration of Mark E. Merin; [Proposed] Order re 194 MOTION for Partial Summary Judgment filed by Laura Timbrook, Leigh Fleming, Micky Mangosing, Alexis Bronson, Marcy Corneau, Lisa Giampaoli, Mary Bull, Jonah Zern. Motion Hearing set for 8/5/2005 10:00 AM in Courtroom 8, 19th Floor, San Francisco. (Merin, Mark) (Filed on 6/24/2005) (Entered: 06/24/2005)
198 ORDER by Judge Charles R. Breyer granting 197 Motion for leave to file a 40 page brief (be, COURT STAFF) (Filed on 6/27/2005) (Entered: 06/27/2005)

Case: 3:03-cv-01840-CRB As of: 07/05/2014 11:39 AM PDT 24 of 42

07/15/2005 07/15/2005
07/15/2005
07/15/2005 07/19/2005
07/22/2005 07/22/2005 07/22/2005 07/22/2005 07/22/2005
07/26/2005

199 MOTION for Partial Summary Judgment Re: Qualified Immunity filed by Michael Hennessey. Motion Hearing set for 8/18/2005 10:00 AM in Courtroom 8, 19th Floor, San Francisco. (Newdorf, David) (Filed on 7/15/2005) (Entered: 07/15/2005)
200 Declaration of ELLEN BRIN IN SUPPORT OF OPPOSITION TO PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT; AND SHERIFF MICHAEL HENNESEY'S MOTION FOR PARTIAL SUMMARY JUDGMENT RE QUALIFIED IMMUNITY filed byMichael Hennessey, City and County of San Francisco, San Francisco County Sheriff's Department. (Attachments: # 1 Exhibit A1# 2 Exhibit A2# 3 # 4 Exhibit A4# 5 Exhibit A5# 6 Exhibit A6)(Newdorf, David) (Filed on 7/15/2005) (Entered: 07/15/2005)
201 Declaration of DAVID B. NEWDORF IN SUPPORT OF OPPOSITION TO PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT; AND SHERIFF MICHAEL HENNESEY'S MOTION FOR PARTIAL SUMMARY JUDGMENT RE QUALIFIED IMMUNITY filed byMichael Hennessey, City and County of San Francisco, San Francisco County Sheriff's Department. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7A# 8 Exhibit 7B# 9 Errata 9# 10 Exhibit 10# 11 Exhibit 11# 12 Exhibit 12# 13 Errata 13# 14 Exhibit 14# 15 Exhibit 15# 16 Exhibit 16# 17 Exhibit 17# 18 Exhibit 18# 19 Exhibit 19# 20 Exhibit 20# 21 Exhibit 21# 22 Exhibit 22# 23 Exhibit 23# 24 Exhibit 8)(Newdorf, David) (Filed on 7/15/2005) (Entered: 07/15/2005)
202 Memorandum in Opposition re 194 MOTION for Partial Summary Judgment filed byMichael Hennessey, City and County of San Francisco, San Francisco County Sheriff's Department. (Newdorf, David) (Filed on 7/15/2005) (Entered: 07/15/2005)
203 MOTION Miscellaneous Administrative Request for Leave to File up to a 35 Page Reply Brief in Support of Plaintiffs' Motion for Partial Summary Judgment; Declaration of Mark E. Merin; [Proposed] Order filed by Laura Timbrook, Leigh Fleming, Micky Mangosing, Alexis Bronson, Marcy Corneau, Lisa Giampaoli, Mary Bull, Jonah Zern. Motion Hearing set for 8/5/2005 10:00 AM in Courtroom 8, 19th Floor, San Francisco. (Merin, Mark) (Filed on 7/19/2005) (Entered: 07/19/2005)
204 Reply to Opposition re 194 MOTION for Partial Summary Judgment filed byLaura Timbrook, Leigh Fleming, Micky Mangosing, Alexis Bronson, Marcy Corneau, Lisa Giampaoli, Mary Bull, Jonah Zern. (Merin, Mark) (Filed on 7/22/2005) (Entered: 07/22/2005)
205 Declaration of Mark E. Merin in Support of 204 Reply to Opposition to Plaintiffs' Motion for Partial Summary Judgment filed byLaura Timbrook, Leigh Fleming, Micky Mangosing, Alexis Bronson, Marcy Corneau, Lisa Giampaoli, Mary Bull, Jonah Zern. (Attachments: # 1 Exhibit A)(Related document(s) 204 ) (Merin, Mark) (Filed on 7/22/2005) (Entered: 07/22/2005)
206 Request for Judicial Notice filed byLaura Timbrook, Leigh Fleming, Micky Mangosing, Alexis Bronson, Marcy Corneau, Lisa Giampaoli, Mary Bull, Jonah Zern. (Attachments: # 1 Exhibit 1# 2 Exhibit 2)(Merin, Mark) (Filed on 7/22/2005) (Entered: 07/22/2005)
207 OBJECTIONS to Defendants' Evidence by Laura Timbrook, Leigh Fleming, Micky Mangosing, Alexis Bronson, Marcy Corneau, Lisa Giampaoli, Mary Bull, Jonah Zern. (Merin, Mark) (Filed on 7/22/2005) (Entered: 07/22/2005)
208 ERRATA re 195 Declaration in Support,,, filed by Mark E. Merin in Support of Plaintiffs' Motionf or Partial Summary Judgment by Laura Timbrook, Leigh Fleming, Micky Mangosing, Alexis Bronson, Marcy Corneau, Lisa Giampaoli, Mary Bull, Jonah Zern, Laura Timbrook, Leigh Fleming, Micky Mangosing, Alexis Bronson, Marcy Corneau, Lisa Giampaoli, Mary Bull, Jonah Zern. (Attachments: # 1 Exhibit 17 (errata)# 2 Exhibit 18 (errata))(Merin, Mark) (Filed on 7/22/2005) (Entered: 07/22/2005)
209 ORDER by Judge Charles R. Breyer granting 203 Motion for leave to file 35 page reply brief (be, COURT STAFF) (Filed on 7/26/2005) (Entered: 07/26/2005)

Case: 3:03-cv-01840-CRB As of: 07/05/2014 11:39 AM PDT 25 of 42

07/26/2005 07/26/2005 07/27/2005 08/02/2005 08/02/2005 08/12/2005
08/12/2005
08/19/2005
08/19/2005 08/19/2005
08/30/2005 09/22/2005 10/21/2005

210 MOTION to Continue ADMINISTRATIVE REQUEST TO CONTINUE HEARING ON PENDING MOTIONS TO SEPTEMBER 8, 2005 filed by Michael Hennessey, City and County of San Francisco, San Francisco County Sheriff's Department. Motion Hearing set for 8/5/2005 10:00 AM in Courtroom 8, 19th Floor, San Francisco. (Newdorf, David) (Filed on 7/26/2005) (Entered: 07/26/2005)
211 Proposed Order GRANTING ADMINISTRATIVE REQUEST TO SET MOTIONS HEARING ON SEPTEMBER 8, 2005 by Michael Hennessey, City and County of San Francisco, San Francisco County Sheriff's Department. (Newdorf, David) (Filed on 7/26/2005) (Entered: 07/26/2005)
212 ADMINISTRATIVE REQUEST to continue hearing on pending motions to 9/8/05 by Michael Hennessey, City and County of San Francisco, San Francisco County Sheriff's Department. *** DUPLICATE ENTRY. SEE ABOVE 210 . ***(mcl, COURT STAFF) (Filed on 7/27/2005) (Entered: 07/28/2005)
213 ORDER by Judge Charles R. Breyer granting 210 Motion to Continue (be, COURT STAFF) (Filed on 8/2/2005) (Entered: 08/02/2005)
Set/Reset Deadlines as to 199 MOTION for Partial Summary Judgment Re: Qualified Immunity, 194 MOTION for Partial Summary Judgment. Motion Hearing set for 8/30/2005 10:00 AM. (be, COURT STAFF) (Filed on 8/2/2005) (Entered: 08/02/2005)
214 Memorandum in Opposition re 199 MOTION for Partial Summary Judgment Re: Qualified Immunity filed byLaura Timbrook, Leigh Fleming, Micky Mangosing, Alexis Bronson, Marcy Corneau, Lisa Giampaoli, Mary Bull, Jonah Zern. (Attachments: # 1 Proposed Order Denying Defendant Sheriff Michael Hennessey's Motion for Partial Summary Judgment re: Qualified Immunity)(Merin, Mark) (Filed on 8/12/2005) (Entered: 08/12/2005)
215 Declaration of Thom Seaton in Support of 214 Memorandum in Opposition, to Defendant Sheriff Michael Hennessey's Motion for Partial Summary Judgment re: Qualified Immunity filed byLaura Timbrook, Leigh Fleming, Micky Mangosing, Alexis Bronson, Marcy Corneau, Lisa Giampaoli, Mary Bull, Jonah Zern. (Attachments: # 1 Exhibit 1 &2)(Related document(s) 214 ) (Merin, Mark) (Filed on 8/12/2005) (Entered: 08/12/2005)
216 Brief re 199 MOTION for Partial Summary Judgment Re: Qualified Immunity REPLY BRIEF IN SUPPORT OF DEFENDANT SHERIFF MICHAEL HENNESSEY'S MOTION FOR PARTIAL SUMMARY JUDGMENT RE: QUALIFIED IMMUNITY filed byMichael Hennessey, City and County of San Francisco, San Francisco County Sheriff's Department. (Related document(s) 199 ) (Newdorf, David) (Filed on 8/19/2005) (Entered: 08/19/2005)
217 Declaration of DAVID B. NEWDORF in Support of 216 Brief, DECLARATION OF DAVID B. NEWDORF IN SUPPORT OF REPLY BRIEF RE: QUALFIED IMMUNITY filed byMichael Hennessey, City and County of San Francisco, San Francisco County Sheriff's Department. (Attachments: # 1)(Related document(s) 216 ) (Newdorf, David) (Filed on 8/19/2005) (Entered: 08/19/2005)
218 Declaration of UNDERSHERIFF JAN DEMPSEY in Support of 216 Brief, DECLARATION OF UNDERSHERIFF JAN DEMPSEY IN SUPPORT OF REPLY BRIEF RE: QUALIFIED IMMUNITY filed byMichael Hennessey, City and County of San Francisco, San Francisco County Sheriff's Department. (Attachments: # 1)(Related document(s) 216 ) (Newdorf, David) (Filed on 8/19/2005) (Entered: 08/19/2005)
219 Minute Entry: Motion Hearing held on 8/30/2005 before Charles R. Breyer (Date Filed: 8/30/2005). (Court Reporter Sahar McVickar.) (be, COURT STAFF) (Date Filed: 8/30/2005) (Entered: 08/30/2005)
220 MEMORANDUM AND ORDER RE: MOTIONS FOR SUMMARY JUDGMENT by Judge Charles R. Breyer (crblc2, COURT STAFF) (Filed on 9/22/2005) (Entered: 09/22/2005)
221 MOTION for Leave to File Motion for Reconsideration of Memorandum and Order re: Motion for Partial Summary Judgment filed by Michael Hennessey, City

Case: 3:03-cv-01840-CRB As of: 07/05/2014 11:39 AM PDT 26 of 42

10/21/2005
10/24/2005 10/24/2005 10/24/2005 10/24/2005
10/25/2005 10/27/2005 11/02/2005 11/07/2005 11/07/2005 11/10/2005 11/15/2005 11/15/2005 12/02/2005
12/02/2005
12/12/2005

and County of San Francisco, San Francisco County Sheriff's Department. (Newdorf, David) (Filed on 10/21/2005) (Entered: 10/21/2005)
222 NOTICE by Michael Hennessey, City and County of San Francisco, San Francisco County Sheriff's Department Notice of Appeal to the United States Court of Appeals for the Ninth Circuit. FEE NOT PAID.(Newdorf, David) (Filed on 10/21/2005) Modified on 10/24/2005 (mcl, COURT STAFF). (Entered: 10/21/2005)
Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals. (mcl, COURT STAFF) (Entered: 10/24/2005)
Copy of Notice of Appeal and Docket sheet mailed to all counsel. (mcl, COURT STAFF) (Entered: 10/24/2005)
223 Mailed request for payment of docket fee to appellant (cc to USCA) (mcl, COURT STAFF) (Filed on 10/24/2005) Additional attachment(s) added on 10/24/2005 (mcl, COURT STAFF). (Entered: 10/24/2005)
224 NOTICE OF APPEAL as to 220 Order on Motion for Partial Summary Judgment, by Michael Hennessey, City and County of San Francisco, San Francisco County Sheriff's Department. Fee NOT paid. *** DUPLICATE ENTRY. SEE ABOVE 222 *** (mcl, COURT STAFF) (Filed on 10/24/2005) (Entered: 10/25/2005)
USCA Appeal Fees received $ 255 receipt number 3377722 re 222 Notice of Appeal, filed by City and County of San Francisco, San Francisco County Sheriff's Department, Michael Hennessey.(mcl, COURT STAFF) (Entered: 10/26/2005)
225 TRANSCRIPT DESIGNATION for proceedings held on 8/30/05 before Judge Charles R. Breyer. C/R : Sahar McVicker. (mcl, COURT STAFF) (Filed on 10/27/2005) (Entered: 10/28/2005)
USCA Case Number 05−17080 for 224 Notice of Appeal, filed by City and County of San Francisco, San Francisco County Sheriff's Department, Michael Hennessey. (mcl, COURT STAFF) (Entered: 11/02/2005)
226 ORDER by Judge Charles R. Breyer granting 221 Motion for Leave to File (crblc2, COURT STAFF) (Filed on 11/7/2005) (Entered: 11/07/2005)
227 NOTICE of Change In Counsel by Ingrid M. Evans (Evans, Ingrid) (Filed on 11/7/2005) (Entered: 11/07/2005)
228 TRANSCRIPT of Proceedings held on 4/9/04 before Judge Charles R. Breyer. Court Reporter: Carolyn M. Mann. (mcl, COURT STAFF) (Filed on 11/10/2005) (Entered: 11/10/2005)
229 TRANSCRIPT of Proceedings held on 4/13/05 before Judge Charles R. Breyer. Court Reporter: Carolyn M. Mann. (mcl, COURT STAFF) (Filed on 11/15/2005) (Entered: 11/16/2005)
230 TRANSCRIPT of Proceedings held on 4/12/05 before Judge Charles R. Breyer. Court Reporter: Carolyn M. Mann. (mcl, COURT STAFF) (Filed on 11/15/2005) (Entered: 11/16/2005)
231 MEMORANDUM in Support DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR RECONSIDERATION filed byMichael Hennessey, City and County of San Francisco, San Francisco County Sheriff's Department. (Bonta, Robert) (Filed on 12/2/2005) (Entered: 12/02/2005)
232 Declaration of CAPTAIN ELLEN BRIN IN SUPPORT OF MOTION FOR RECONSIDERATION filed byMichael Hennessey, City and County of San Francisco, San Francisco County Sheriff's Department. (Bonta, Robert) (Filed on 12/2/2005) (Entered: 12/02/2005)
233 MOTION Plaintiffs' Miscellaneous Administrative Request for Leave to File Up to a 15 Page Brief in Support of Their Opposition to Defendants' Motion for Reconsideration; Declaration of Mark E. Merin; [Proposed] Order filed by Laura Timbrook, Leigh Fleming, Charli Johnson, Micky Mangosing, Alexis Bronson, Marcy Corneau, Lisa Giampaoli, Mary Bull, Jonah Zern. (Merin, Mark) (Filed on

Case: 3:03-cv-01840-CRB As of: 07/05/2014 11:39 AM PDT 27 of 42

12/13/2005
12/13/2005
12/13/2005 12/16/2005 12/16/2005 12/16/2005 12/23/2005 12/23/2005 01/04/2006 01/17/2006 02/08/2006 02/16/2006 02/17/2006

12/12/2005) (Entered: 12/12/2005)
234 REPLY to Response to Motion DEFENDANTS' OPPOSITION TO PLAINTIFFS' 233 MISCELLANEOUS ADMINISTRATIVE REQUEST FOR LEAVE TO FILE UP TO A 15 PAGE BRIEF IN SUPPORT OF THEIR OPPOSITION TO DEFENDANTS' MOTION FOR RECONSIDERATION filed byMichael Hennessey, City and County of San Francisco, San Francisco County Sheriff's Department. (Bonta, Robert) (Filed on 12/13/2005) Modified on 12/15/2005 (aaa, Court Staff). (Entered: 12/13/2005)
235 Reply to Opposition re 233 MOTION Plaintiffs' Miscellaneous Administrative Request for Leave to File Up to a 15 Page Brief in Support of Their Opposition to Defendants' Motion for Reconsideration; Declaration of Mark E. Merin; [Proposed] Order filed byLaura Timbrook, Leigh Fleming, Charli Johnson, Micky Mangosing, Alexis Bronson, Marcy Corneau, Lisa Giampaoli, Mary Bull, Jonah Zern. (Merin, Mark) (Filed on 12/13/2005) (Entered: 12/13/2005)
236 ORDER by Judge Charles R. Breyer granting up to 12 page brief 233 Motion for leave to file a 15 page brief (be, COURT STAFF) (Filed on 12/13/2005) (Entered: 12/14/2005)
237 Memorandum in Opposition to Defendants' Motion for Reconsideration filed byLaura Timbrook, Leigh Fleming, Charli Johnson, Micky Mangosing, Alexis Bronson, Marcy Corneau, Lisa Giampaoli, Mary Bull, Jonah Zern. (Attachments: # 1 Appendix A# 2 Appendix B# 3 Appendix C)(Merin, Mark) (Filed on 12/16/2005) (Entered: 12/16/2005)
238 DECLARATION of City and County of San Francisco Public Defender, Jeff Adachi in Support of Plaintiffs' Opposition to Defendants' Motion for Reconsideration filed byLaura Timbrook, Leigh Fleming, Charli Johnson, Micky Mangosing, Alexis Bronson, Marcy Corneau, Lisa Giampaoli, Mary Bull, Jonah Zern. (Merin, Mark) (Filed on 12/16/2005) (Entered: 12/16/2005)
239 OBJECTIONS to Evidence [In Opposition to Defendants' Motion for Reconsideration] by Laura Timbrook, Leigh Fleming, Charli Johnson, Micky Mangosing, Alexis Bronson, Marcy Corneau, Lisa Giampaoli, Mary Bull, Jonah Zern. (Merin, Mark) (Filed on 12/16/2005) (Entered: 12/16/2005)
240 Reply Memorandum In Support of Defendants' Motion for Reconsideration filed byMichael Hennessey, City and County of San Francisco, San Francisco County Sheriff's Department. (Newdorf, David) (Filed on 12/23/2005) (Entered: 12/23/2005)
241 Declaration of Arturo Faro In Support of Defendants' Motion for Reconsideration filed byMichael Hennessey, City and County of San Francisco, San Francisco County Sheriff's Department. (Newdorf, David) (Filed on 12/23/2005) (Entered: 12/23/2005)
242 CLERK'S NOTICE Oral Argument on D's Motion for Reconsideration hearing set for 1/17/2006 10:00 AM. (be, COURT STAFF) (Filed on 1/4/2006) (Entered: 01/04/2006)
243 Minute Entry: Hearing on D's Motin for Reconsideration held on 1/17/2006 before Charles R. Breyer (Date Filed: 1/17/2006). (Court Reporter Belle Ball.) (be, COURT STAFF) (Date Filed: 1/17/2006) (Entered: 01/17/2006)
244 TRANSCRIPT of Proceedings held on 1/17/06 before Judge Charles R. Breyer. Court Reporter: Belle Ball. (mcl, COURT STAFF) (Filed on 2/8/2006) (Entered: 02/08/2006)
245 TRANSCRIPT of Proceedings held on 8/30/05 before Judge Charles R. Breyer. Court Reporter: Sahar McVickar. (mcl, COURT STAFF) (Filed on 2/16/2006) (Entered: 02/16/2006)
246 Certificate of Record Mailed to USCA re appeal 224 .(mcl, COURT STAFF) (Filed on 2/17/2006) (Entered: 02/17/2006)

Case: 3:03-cv-01840-CRB As of: 07/05/2014 11:39 AM PDT 28 of 42

02/23/2006 02/24/2006 03/27/2006
03/27/2006 03/28/2006 03/28/2006 03/29/2006 03/29/2006 03/29/2006 04/03/2006 04/06/2006
04/27/2006
05/03/2006
11/08/2006 11/15/2006 12/13/2006

247 AMENDED MEMORANDUM AND ORDER RE: MOTIONS FOR SUMMARY JUDGMENT. Signed by Judge Charles R. Breyer on February 23, 2006. (crblc2, COURT STAFF) (Filed on 2/23/2006) (Entered: 02/23/2006)
248 Receipt from USCA for certificate of record.(mcl, COURT STAFF) (Filed on 2/24/2006) (Entered: 02/24/2006)
249 NOTICE OF APPEAL as to 247 Amended Memorandum &Opinion by Michael Hennessey, City and County of San Francisco, San Francisco County Sheriff's Department. This appeal related to appeal 222 . (mcl, COURT STAFF) (Filed on 3/27/2006) (Entered: 03/28/2006)
Received Civil Appeals Docketing Statement re 249 Notice of Appeal by Michael Hennessey, City and County of San Francisco, San Francisco County Sheriff's Department. (mcl, COURT STAFF) (Entered: 03/28/2006)
Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 249 Notice of Appeal. (mcl, COURT STAFF) (Entered: 03/28/2006)
Copy of Notice of Appeal and Docket sheet mailed to all counsel. (mcl, COURT STAFF) (Entered: 03/28/2006)
250 NOTICE of Change In Counsel by Sherri Sokeland Kaiser (Kaiser, Sherri) (Filed on 3/29/2006) (Entered: 03/29/2006)
251 NOTICE of Change In Counsel by Robert A. Bonta (Bonta, Robert) (Filed on 3/29/2006) (Entered: 03/29/2006)
USCA Appeal Fees received $ 255 receipt number 3383731 re 249 Notice of Appeal filed by City and County of San Francisco, San Francisco County Sheriff's Department, Michael Hennessey. (mcl, COURT STAFF) (Entered: 04/04/2006)
USCA Case Number 06−15566 for 249 Notice of Appeal filed by City and County of San Francisco, San Francisco County Sheriff's Department, Michael Hennessey. (mcl, COURT STAFF) (Entered: 04/04/2006)
252 TRANSCRIPT DESIGNATION by Michael Hennessey, City and County of San Francisco, San Francisco County Sheriff's Department, for proceedings held on 1/17/06 before Judge Charles R. Breyer. C/R : Belle Ball. (mcl, COURT STAFF) (Filed on 4/6/2006) Additional attachment(s) added on 5/1/2007 (mcl, COURT STAFF). (Entered: 04/11/2006)
253 ORDER of USCA as to 249 Notice of Appeal filed by City and County of San Francisco, San Francisco County Sheriff's Department, Michael Hennessey, 224 Notice of Appeal, filed by City and County of San Francisco, San Francisco County Sheriff's Department, Michael Hennessey. The appellant's motion to consolidate appeals is granted. (mcl, COURT STAFF) (Filed on 4/27/2006) (Entered: 04/28/2006)
254 ORDER of USCA as to 249 Notice of Appeal filed by City and County of San Francisco, San Francisco County Sheriff's Department, Michael Hennessey, 224 Notice of Appeal, filed by City and County of San Francisco, San Francisco County Sheriff's Department, Michael Hennessey. The appellants' motion to consolidate the appeals is granted. (mcl, COURT STAFF) (Filed on 5/3/2006) (Entered: 05/03/2006)
256 ORDER of USCA : The court will initiate a further conference by telephone on 11/30/06. (mcl, COURT STAFF) (Filed on 11/8/2006) (Entered: 11/15/2006)
255 NOTICE of Change In Counsel by Mark E. Merin, Esq (Merin, Mark) (Filed on 11/15/2006) (Entered: 11/15/2006)
257 ORDER of USCA as to 249 Notice of Appeal filed by City and County of San Francisco, San Francisco County Sheriff's Department, Michael Hennessey, 224 Notice of Appeal, filed by City and County of San Francisco, San Francisco County Sheriff's Department, Michael Hennessey. The court will initiate a further conference by telephone on 12/7/06 at 4:00 pm.(mcl, COURT STAFF) (Filed on 12/13/2006) (Entered: 12/14/2006)

Case: 3:03-cv-01840-CRB As of: 07/05/2014 11:39 AM PDT 29 of 42

12/15/2006
01/25/2007
05/01/2007
05/01/2007 05/11/2007 09/25/2007 10/29/2007
09/04/2008 09/08/2008 09/08/2008 09/08/2008 09/11/2008 09/11/2008 10/16/2008

258 ORDER of USCA as to 249 Notice of Appeal filed by City and County of San Francisco, San Francisco County Sheriff's Department, Michael Hennessey, 224 Notice of Appeal, filed by City and County of San Francisco, San Francisco County Sheriff's Department, Michael Hennessey. The court will initiate a further conference by telephone on 1/10/07 at 3:00 pm. (mcl, COURT STAFF) (Filed on 12/15/2006) Additional attachment(s) added on 12/18/2006 (mcl, COURT STAFF). (Entered: 12/18/2006)
259 ORDER of USCA as to 249 Notice of Appeal filed by City and County of San Francisco, San Francisco County Sheriff's Department, Michael Hennessey, 224 Notice of Appeal, filed by City and County of San Francisco, San Francisco County Sheriff's Department, Michael Hennessey. The assessment conference rescheduled to 1/18/07. (mcl, COURT STAFF) (Filed on 1/25/2007) (Entered: 01/25/2007)
260 ORDER of USCA as to 249 Notice of Appeal filed by City and County of San Francisco, San Francisco County Sheriff's Department, Michael Hennessey. Appellees' unopposed motion for an extension of time to file the answering brief is granted. Answering brief due 5/16/07. (mcl, COURT STAFF) (Filed on 5/1/2007) (Entered: 05/01/2007)
261 Certificate of Record Mailed to USCA re 249 Notice of Appeal. (mcl, COURT STAFF) (Filed on 5/1/2007) (Entered: 05/01/2007)
262 Receipt from USCA for certificate of record. (mcl, COURT STAFF) (Filed on 5/11/2007) (Entered: 05/11/2007)
Certified and Transmitted Record on Appeal to US Court of Appeals re 224 Notice of Appeal (USCA # 05−17080). (mcl, COURT STAFF) (Entered: 09/25/2007)
263 ORDER of USCA as to 249 Notice of Appeal filed by San Francisco County Sheriff's Department, Michael Hennessey, City and County of San Francisco, 224 Notice of Appeal, filed by San Francisco County Sheriff's Department, Michael Hennessey, City and County of San Francisco. The motion of San Mateo County Sheriff Don Horsley and the County of San Mateo for leave to file an amici curiae brief is granted. (mcl, COURT STAFF) (Filed on 10/29/2007) (Entered: 10/29/2007)
264 CLERK'S NOTICE Case Management Conference set for 9/12/2008 08:30 AM. Case Management Statement due by 9/8/2008. (be, COURT STAFF) (Filed on 9/4/2008) (Entered: 09/04/2008)
265 USCA OPINION as to 249 Notice of Appeal filed by San Francisco County Sheriff's Department, Michael Hennessey, City and County of San Francisco (slh, COURT STAFF) (Filed on 9/8/2008) (Entered: 09/08/2008)
266 CASE MANAGEMENT STATEMENT filed by Laura Timbrook, Leigh Fleming, Charli Johnson, Micky Mangosing, Alexis Bronson, Marcy Corneau, Lisa Giampaoli, Mary Bull, Jonah Zern. (Merin, Mark) (Filed on 9/8/2008) (Entered: 09/08/2008)
267 CASE MANAGEMENT STATEMENT filed by Michael Hennessey, City and County of San Francisco, San Francisco County Sheriff's Department. (Bonta, Robert) (Filed on 9/8/2008) (Entered: 09/08/2008)
268 ORDER of USCA as to 249 Notice of Appeal filed by San Francisco County Sheriff's Department, Michael Hennessey, City and County of San Francisco. The petition for rehearing shall be filed on or before 10/3/08. (mcl, COURT STAFF) (Filed on 9/11/2008) (Entered: 09/11/2008)
269 CLERK'S NOTICE vacating the case management conference set for 9/12/2008. (be, COURT STAFF) (Filed on 9/11/2008) (Entered: 09/11/2008)
270 ORDER of USCA as to 249 Notice of Appeal filed by San Francisco County Sheriff's Department, Michael Hennessey, City and County of San Francisco, 224 Notice of Appeal, filed by San Francisco County Sheriff's Department, Michael Hennessey, City and County of San Francisco. The motion filed by the California State Association of Counties and League of California Cities to file an amicus

Case: 3:03-cv-01840-CRB As of: 07/05/2014 11:39 AM PDT 30 of 42

10/20/2008
10/24/2008 02/23/2009
03/05/2009 03/05/2009 03/05/2009 03/26/2009 12/01/2009 02/16/2010 03/08/2010

brief is granted. (mcl, COURT STAFF) (Filed on 10/16/2008) (Entered: 10/16/2008)
271 ORDER of USCA as to 249 Notice of Appeal filed by San Francisco County Sheriff's Department, Michael Hennessey, City and County of San Francisco, 224 Notice of Appeal, filed by San Francisco County Sheriff's Department, Michael Hennessey, City and County of San Francisco. Plaintiffs−Appellees are directed to file a response of no more than 15 pages to the petition for rehearing and petition for rehearing en banc. (mcl, COURT STAFF) (Filed on 10/20/2008) (Entered: 10/20/2008)
272 ORDER of USCA as to 249 Notice of Appeal filed by San Francisco County Sheriff's Department, Michael Hennessey, City and County of San Francisco, 224 Notice of Appeal, filed by San Francisco County Sheriff's Department, Michael Hennessey, City and County of San Francisco. Appellees' motion for extension of time is granted. Appellees shall file their response on or before 11/20/08. (mcl, COURT STAFF) (Filed on 10/24/2008) (Entered: 10/24/2008)
273 ORDER of USCA as to 249 Notice of Appeal filed by San Francisco County Sheriff's Department, Michael Hennessey, City and County of San Francisco, 224 Notice of Appeal, filed by San Francisco County Sheriff's Department, Michael Hennessey, City and County of San Francisco. Upon the vote of a majority of nonrecused active judges, it is ordered that this case be reheard en banc pursuant to Circuit Rule 35−3. (mcl, COURT STAFF) (Filed on 2/23/2009) (Entered: 02/23/2009)
274 ORDER of USCA re additional copies of briefs and excerpts of record as to 249 Notice of Appeal filed by San Francisco County Sheriff's Department, Michael Hennessey, City and County of San Francisco, 224 Notice of Appeal, filed by San Francisco County Sheriff's Department, Michael Hennessey, City and County of San Francisco. (mcl, COURT STAFF) (Filed on 3/5/2009) (Entered: 03/05/2009)
275 ORDER of USCA as to 249 Notice of Appeal filed by San Francisco County Sheriff's Department, Michael Hennessey, City and County of San Francisco. The Joint Motion to Reset En Banc Hearing is denied. (mcl, COURT STAFF) (Filed on 3/5/2009) (Entered: 03/05/2009)
276 ORDER of USCA as to 249 Notice of Appeal filed by San Francisco County Sheriff's Department, Michael Hennessey, City and County of San Francisco, 224 Notice of Appeal, filed by San Francisco County Sheriff's Department, Michael Hennessey, City and County of San Francisco. Oral argument in this en banc case will be held on 3/26/09 at 10:00 am. (mcl, COURT STAFF) (Filed on 3/5/2009) (Entered: 03/05/2009)
277 ORDER of USCA as to 249 Notice of Appeal filed by San Francisco County Sheriff's Department, Michael Hennessey, City and County of San Francisco, 224 Notice of Appeal, filed by San Francisco County Sheriff's Department, Michael Hennessey, City and County of San Francisco. Contra Costa County's motion to file an amicus brief is granted. (mcl, COURT STAFF) (Filed on 3/26/2009) (Entered: 03/26/2009)
278 NOTICE of Change In Counsel by Mark E. Merin, Esq (Merin, Mark) (Filed on 12/1/2009) (Entered: 12/01/2009)
279 USCA Opinion as to 249 Notice of Appeal filed by San Francisco County Sheriff's Department, Michael Hennessey, City and County of San Francisco, 224 Notice of Appeal, filed by San Francisco County Sheriff's Department, Michael Hennessey, City and County of San Francisco (mcl, COURT STAFF) (Filed on 2/16/2010) (Entered: 02/16/2010)
280 MANDATE of USCA as to 249 Notice of Appeal filed by San Francisco County Sheriff's Department, Michael Hennessey, City and County of San Francisco, 224 Notice of Appeal, filed by San Francisco County Sheriff's Department, Michael Hennessey, City and County of San Francisco. The judgment of this Court, entered 2/9/10, takes effect this date. (mcl, COURT STAFF) (Filed on 3/8/2010) (Entered: 03/08/2010)

Case: 3:03-cv-01840-CRB As of: 07/05/2014 11:39 AM PDT 31 of 42

03/08/2010 03/08/2010 06/07/2010 07/02/2010 07/06/2010 07/13/2010 07/16/2010 07/16/2010
07/23/2010 07/26/2010
07/26/2010 07/30/2010
08/02/2010

281 CLERKS Letter Spreading Mandate to Counsel re 280 . (mcl, COURT STAFF) (Filed on 3/8/2010) (Entered: 03/08/2010)
282 Appeal Record Returned from USCA. (mcl, COURT STAFF) (Filed on 3/8/2010) (Entered: 03/09/2010)
283 CLERKS NOTICE Case Management Statement due by 7/9/2010. Case Management Conference set for 7/16/2010 08:30 AM in Courtroom 8, 19th Floor, San Francisco. (be, COURT STAFF) (Filed on 6/7/2010) (Entered: 06/07/2010)
284 STIPULATION and Proposed Order to Continue Case Management Conference by City and County of San Francisco. (Bonta, Robert) (Filed on 7/2/2010) (Entered: 07/02/2010)
285 CLERKS NOTICE Case Management Conference reset for 7/21/2010 10:00 AM in Courtroom 8, 19th Floor, San Francisco. (be, COURT STAFF) (Filed on 7/6/2010) (Entered: 07/06/2010)
286 ORDER to continue CMC re (284 in 3:03−cv−01840−CRB) Stipulation filed by City and County of San Francisco Case Management Conference set for 7/23/2010 08:30 AM in Courtroom 8, 19th Floor, San Francisco.. Signed by Judge Charles R. Breyer on 7/9/2010. (be, COURT STAFF) (Filed on 7/13/2010) (Entered: 07/13/2010)
287 JOINT CASE MANAGEMENT STATEMENT filed by Alexis Bronson, Mary Bull, City and County of San Francisco, Marcy Corneau, Leigh Fleming, Lisa Giampaoli, Michael Hennessey, Charli Johnson, Micky Mangosing, San Francisco County Sheriff's Department, San Francisco County Sheriff's Deputies, Laura Timbrook, Jonah Zern. (Merin, Mark) (Filed on 7/16/2010) (Entered: 07/16/2010)
288 AMENDED JOINT CASE MANAGEMENT STATEMENT Amended filed by Alexis Bronson, Mary Bull, City and County of San Francisco, Marcy Corneau, Leigh Fleming, Lisa Giampaoli, Michael Hennessey, Charli Johnson, Micky Mangosing, San Francisco County Sheriff's Department, San Francisco County Sheriff's Deputies, Laura Timbrook, Jonah Zern. (Merin, Mark) (Filed on 7/16/2010) Modified on 7/19/2010 (ys, COURT STAFF). (Entered: 07/16/2010)
289 Minute Entry: Further Case Management Conference held on 7/23/2010 before Charles R. Breyer (Date Filed: 7/23/2010). Motion due by 8/6/2010. Responses due by 8/20/2010. Replies due by 8/27/2010. Motion Hearing set for 9/3/2010 10:00 AM in Courtroom 8, 19th Floor, San Francisco. (Court Reporter Belle Ball.) (be, COURT STAFF) (Date Filed: 7/23/2010) (Entered: 07/26/2010)
290 Transcript of Proceedings held on July 23, 2010, before Judge Charles R. Breyer. Court Reporter/Transcriber Belle Ball, CSR, RMR, CRR, Telephone number (415)373−2529, belle_ball@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 10/25/2010. (Ball, Belle) (Filed on 7/26/2010) (Entered: 07/26/2010)
***Deadlines terminated. 283 Clerks Notice. (ys, COURT STAFF) (Filed on 7/26/2010) (Entered: 07/27/2010)
291 MOTION to Amend/Correct Complaint filed by Alexis Bronson, Mary Bull, Leigh Fleming, Lisa Giampaoli, Micky Mangosing, Laura Timbrook, J. Quechaun Allen, Diana Smith, Michele De Ranleau, Michael Marron, Steve Noh, Sister Bernie Galvin, Brian Vowel, Ewart Yearwood. Motion Hearing set for 9/3/2010 10:00 AM in Courtroom 8, 19th Floor, San Francisco. (Attachments: # 1 Exhibit 1, # 2 Proposed Order)(Merin, Mark) (Filed on 7/30/2010) (Entered: 07/30/2010)
292 STIPULATION of Dismissal of Defendant Michael Hennessey with Prejudice and Proposed Order by City and County of San Francisco. (Bonta, Robert) (Filed on 8/2/2010) (Entered: 08/02/2010)

Case: 3:03-cv-01840-CRB As of: 07/05/2014 11:39 AM PDT 32 of 42

08/02/2010 08/02/2010 08/02/2010 08/04/2010 08/04/2010 08/04/2010 08/04/2010 08/06/2010 08/06/2010
08/06/2010
08/13/2010
08/13/2010 08/13/2010 08/20/2010 08/20/2010

293 STIPULATION Plaintiff Jonah Zern Stipulation of Dismissal with Prejudice and Proposed Order by City and County of San Francisco. (Bonta, Robert) (Filed on 8/2/2010) (Entered: 08/02/2010)
294 STIPULATION Plaintiff Charli Johnson Stipulation of Dismissal With Prejudice and Proposed Order by City and County of San Francisco. (Bonta, Robert) (Filed on 8/2/2010) (Entered: 08/02/2010)
295 STIPULATION Plaintiff Marcy Corneau Stipulation of Dismissal with Prejudice and Proposed Order by City and County of San Francisco. (Bonta, Robert) (Filed on 8/2/2010) (Entered: 08/02/2010)
296 ORDER of Dismissal with prejudice re 292 Stipulation filed by City and County of San Francisco, Michael Hennessey terminated.. Signed by Judge Charles R. Breyer on 8/4/2010. (be, COURT STAFF) (Filed on 8/4/2010) (Entered: 08/04/2010)
297 ORDER of Dismissal with prejudice re 293 Stipulation filed by City and County of San Francisco, Jonah Zern terminated.. Signed by Judge Chrles R. Breyer on 8/4/2010. (be, COURT STAFF) (Filed on 8/4/2010) (Entered: 08/04/2010)
298 ORDER of Dismissal with prejduice re 294 Stipulation filed by City and County of San Francisco, Charli Johnson terminated.. Signed by Judge Charles R. Breyer on 8/4/2010. (be, COURT STAFF) (Filed on 8/4/2010) (Entered: 08/04/2010)
299 ORDER of Dismissal with prejduice re 295 Stipulation filed by City and County of San Francisco, Marcy Corneau terminated.. Signed by Judge Charles R. Breyer on 8/4/2010. (be, COURT STAFF) (Filed on 8/4/2010) (Entered: 08/04/2010)
300 MOTION for Partial Summary Judgment and to Decertify Class filed by City and County of San Francisco. Motion Hearing set for 9/3/2010 10:00 AM in Courtroom 8, 19th Floor, San Francisco. (Attachments: # 1 Proposed Order)(Bonta, Robert) (Filed on 8/6/2010) (Entered: 08/06/2010)
301 Declaration of Joanne Hoeper In Support of 300 Motion for Partial Summary Judgment and to Decertify Class filed byCity and County of San Francisco. (Attachments: # 1 Exhibit A, # 2 Exhibit A, Part 1, # 3 Exhibit A, Part 2, # 4 Exhibit A, Part 3, # 5 Exhibit B, # 6 Exhibit B, Part 1, # 7 Exhibit B, Part 2, # 8 Exhibit B, Part 3, # 9 Exhibit B, Part 4, # 10 Exhibit B, Part 5, # 11 Exhibit B, Part 6, # 12 Exhibit B, Part 7, # 13 Exhibit C, # 14 Exhibit C, Part 1, # 15 Exhibit C, Part 2, # 16 Exhibit C, Part 3)(Bonta, Robert) (Filed on 8/6/2010) Modified on 8/9/2010 (mcl, COURT STAFF). (Entered: 08/06/2010)
302 Request for Judicial Notice In Support of 300 Motion for Partial Summary Judgment and to Decertify Class filed byCity and County of San Francisco. (Attachments: # 1 Exhibit A, Part 1, # 2 Exhibit A, Part 2, # 3 Exhibit B)(Bonta, Robert) (Filed on 8/6/2010) Modified on 8/9/2010 (mcl, COURT STAFF). (Entered: 08/06/2010)
303 Declaration of ROBERT A. BONTA in Support of Defendants' Opposition to 291 Plaintiffs' Motion to Amend Complaint filed byCity and County of San Francisco, Michael Hennessey, San Francisco County Sheriff's Department. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Bonta, Robert) (Filed on 8/13/2010) Modified on 8/16/2010 (mcl, COURT STAFF). (Entered: 08/13/2010)
304 Declaration of James Harrigan filed byCity and County of San Francisco, Michael Hennessey, San Francisco County Sheriff's Department. (Bonta, Robert) (Filed on 8/13/2010) (Entered: 08/13/2010)
305 Memorandum in Opposition to 291 Plaintiff's Motion to Amend Complaint filed byCity and County of San Francisco. (Bonta, Robert) (Filed on 8/13/2010) Modified on 8/16/2010 (mcl, COURT STAFF). (Entered: 08/13/2010)
306 Reply to Opposition re 291 MOTION to Amend/Correct Complaint filed byMary Bull. (Schwartz, Andrew) (Filed on 8/20/2010) (Entered: 08/20/2010)
307 Memorandum in Opposition re 300 MOTION for Partial Summary Judgment and to Decertify Class filed byMary Bull. (Attachments: # 1 Affidavit Mark Merin, # 2 Exhibit A, # 3 Exhibit B, # 4 Affidavit Rusell Davis, # 5 Exhibit A, # 6 Proposed Order)(Schwartz, Andrew) (Filed on 8/20/2010) (Entered: 08/20/2010)

Case: 3:03-cv-01840-CRB As of: 07/05/2014 11:39 AM PDT 33 of 42

08/23/2010 08/23/2010 08/27/2010 08/27/2010 09/01/2010 09/03/2010
09/08/2010 09/17/2010
09/17/2010 09/20/2010 10/01/2010

308 ERRATA re 307 Memorandum in Opposition, Plaintiffs' Errata to Their Opposition to Defendants' Motion for Partial Summary Judgment and to Decertify Class by J. Quechaun Allen, Alexis Bronson, Mary Bull, Michele De Ranleau, Leigh Fleming, Sister Bernie Galvin, Lisa Giampaoli, Micky Mangosing, Michael Marron, Steve Noh, Diana Smith, Laura Timbrook, Brian Vowel, Ewart Yearwood. (Merin, Mark) (Filed on 8/23/2010) (Entered: 08/23/2010)
309 ERRATA re 306 Reply to Opposition Plaintiffs' Errata to Their Reply to Defendants' Opposition to Plaintiffs' Motion to Amend Complaint by J. Quechaun Allen, Alexis Bronson, Mary Bull, Michele De Ranleau, Leigh Fleming, Sister Bernie Galvin, Lisa Giampaoli, Micky Mangosing, Michael Marron, Steve Noh, Diana Smith, Laura Timbrook, Brian Vowel, Ewart Yearwood. (Merin, Mark) (Filed on 8/23/2010) (Entered: 08/23/2010)
310 Reply Memorandum In Support of 300 Defendants' Motion for Partial Summary Judgment and Decertification filed byCity and County of San Francisco. (Bonta, Robert) (Filed on 8/27/2010) Modified on 8/30/2010 (mcl, COURT STAFF). (Entered: 08/27/2010)
311 Declaration of Robert A. Bonta (Reply) In Support of 300 Defendants' Motion for Partial Summary Judgment and Decertification filed byCity and County of San Francisco. (Attachments: # 1 Exhibit A)(Bonta, Robert) (Filed on 8/27/2010) Modified on 8/30/2010 (mcl, COURT STAFF). (Entered: 08/27/2010)
312 Request for Judicial Notice of Adjudicative Facts Under Federal Rule of Evidence 201 filed byJ. Quechaun Allen, Alexis Bronson, Mary Bull, Michele De Ranleau, Leigh Fleming, Sister Bernie Galvin, Lisa Giampaoli, Micky Mangosing, Michael Marron, Steve Noh, Diana Smith, Laura Timbrook, Brian Vowel, Ewart Yearwood. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Merin, Mark) (Filed on 9/1/2010) (Entered: 09/01/2010)
313 Minute Entry: Motion Hearing held on 9/3/2010 before Charles R. Breyer (Date Filed: 9/3/2010) re 291 MOTION to Amend/Correct Complaint filed by Michele De Ranleau, Sister Bernie Galvin, Steve Noh, Diana Smith, Mary Bull, Ewart Yearwood, Lisa Giampaoli, Alexis Bronson, Leigh Fleming, J. Quechaun Allen, Brian Vowel, Micky Mangosing, Michael Marron, Laura Timbrook, 300 MOTION for Partial Summary Judgment and to Decertify Class filed by City and County of San Francisco. Amended Complaint filed within 10 days from the Court's Order (Court Reporter Joan Columbini.) (be, COURT STAFF) (Date Filed: 9/3/2010) (Entered: 09/03/2010)
314 ORDER by Judge Charles R. Breyer granting 291 Motion to Amend/Correct ; Plaintiffs are required to E−FILE the amended document; granting in part and denying in part 300 Motion for Partial Summary Judgment (crblc2, COURT STAFF) (Filed on 9/8/2010) (Entered: 09/08/2010)
315 FOURTH AMENDED CLASS ACTION COMPLAINT against City and County of San Francisco, San Francisco County Sheriff's Department, San Francisco County Sheriff's Deputies. Filed byDiana Smith, Mary Bull, Micky Mangosing, Leigh Fleming, Michael Marron, Michele De Ranleau, Alexis Bronson, Steve Noh, Lisa Giampaoli, J. Quechaun Allen, Sister Bernie Galvin, Laura Timbrook. (Attachments: # 1 Exhibit A)(Merin, Mark) (Filed on 9/17/2010) Modified on 9/20/2010 (ys, COURT STAFF). Modified on 2/8/2011 (mcl, COURT STAFF). (Entered: 09/17/2010)
316 MOTION for Leave to File Motion For Reconsideration filed by J. Quechaun Allen, Alexis Bronson, Mary Bull, Michele De Ranleau, Leigh Fleming, Sister Bernie Galvin, Lisa Giampaoli, Micky Mangosing, Michael Marron, Steve Noh, Diana Smith. (Attachments: # 1 Affidavit Declaration of Mark E. Merin, # 2 Exhibit A)(Merin, Mark) (Filed on 9/17/2010) (Entered: 09/17/2010)
317 ORDER by Judge Charles R. Breyer granting 316 Motion for Leave to File Motion for Reconsideration (crblc2, COURT STAFF) (Filed on 9/20/2010) (Entered: 09/20/2010)
318 MOTION to Dismiss filed by City and County of San Francisco, Michael Hennessey, San Francisco County Sheriff's Department. Motion Hearing set for 11/5/2010 10:00 AM in Courtroom 8, 19th Floor, San Francisco. (Bonta, Robert)

Case: 3:03-cv-01840-CRB As of: 07/05/2014 11:39 AM PDT 34 of 42

10/05/2010 10/08/2010
10/08/2010
10/08/2010
10/14/2010 10/14/2010 10/16/2010 10/16/2010 10/16/2010 10/18/2010 10/18/2010 10/21/2010

(Filed on 10/1/2010) (Entered: 10/01/2010)
319 Proposed Order re 318 MOTION to Dismiss by City and County of San Francisco. (Bonta, Robert) (Filed on 10/5/2010) (Entered: 10/05/2010)
320 MOTION to Certify Class Plaintiffs' Notice of Motion and Motion to Redefine the Certified Class; Memorandum of Points and Authorities in Support of Motion filed by J. Quechaun Allen, Alexis Bronson, Mary Bull, Michele De Ranleau, Leigh Fleming, Sister Bernie Galvin, Lisa Giampaoli, Micky Mangosing, Michael Marron, Steve Noh, Diana Smith, Laura Timbrook. Motion Hearing set for 11/12/2010 10:00 AM in Courtroom 8, 19th Floor, San Francisco. (Attachments: # 1 Proposed Order)(Merin, Mark) (Filed on 10/8/2010) (Entered: 10/08/2010)
321 Declaration of Mark E. Merin in Support of 320 MOTION to Certify Class Plaintiffs' Notice of Motion and Motion to Redefine the Certified Class; Memorandum of Points and Authorities in Support of Motion filed byJ. Quechaun Allen, Alexis Bronson, Mary Bull, Michele De Ranleau, Leigh Fleming, Sister Bernie Galvin, Lisa Giampaoli, Micky Mangosing, Michael Marron, Steve Noh, Diana Smith, Laura Timbrook. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 21 − part 2, # 23 Exhibit 22, # 24 Exhibit 23, # 25 Exhibit 24, # 26 Exhibit 25, # 27 Exhibit 26)(Related document(s) 320 ) (Merin, Mark) (Filed on 10/8/2010) (Entered: 10/08/2010)
322 MOTION to Alter or Amend re 314 Order on Motion to Amend/Correct, Order on Motion for Partial Summary Judgment Plaintiffs' Motion to Alter or Amend an Order Under FRCP 56(e) re: Denial of Amendment of Complaint to Add Brian Vowell as Plaintiff and Class Representative of Redefined Classes filed by J. Quechaun Allen, Alexis Bronson, Mary Bull, Michele De Ranleau, Leigh Fleming, Sister Bernie Galvin, Lisa Giampaoli, Micky Mangosing, Michael Marron, Steve Noh, Diana Smith, Laura Timbrook. Motion Hearing set for 11/12/2010 10:00 AM in Courtroom 8, 19th Floor, San Francisco. (Attachments: # 1 Proposed Order)(Merin, Mark) (Filed on 10/8/2010) Modified on 10/12/2010 (ys, COURT STAFF). (Entered: 10/08/2010)
323 CLERKS NOTICE Continuing Motion Hearing Motion to Dismiss Hearing reset for 11/12/2010 10:00 AM in Courtroom 8, 19th Floor, San Francisco. (be, COURT STAFF) (Filed on 10/14/2010) (Entered: 10/14/2010)
Set/Reset Deadlines as to 318 MOTION to Dismiss. Motion Hearing set for 11/12/2010 10:00 AM. (ys, COURT STAFF) (Filed on 10/14/2010) (Entered: 10/15/2010)
324 MOTION to Continue Hearing on Class Definition, Administrative filed by Michael Hennessey. (Bonta, Robert) (Filed on 10/16/2010) (Entered: 10/16/2010)
325 Declaration of Rob Bonta In Support of 324 Administrative Motion to Continue Hearing on Motion for Class Definition filed byCity and County of San Francisco. (Bonta, Robert) (Filed on 10/16/2010) Modified on 10/18/2010 (ys, COURT STAFF). (Entered: 10/16/2010)
326 Proposed Order Granting Administrative Motion To Continue Hearing on Motion for Class Definition by City and County of San Francisco. (Bonta, Robert) (Filed on 10/16/2010) (Entered: 10/16/2010)
327 ORDER by Judge Charles R. Breyer granting 324 Motion to Continue hearing on motion to redefine the certified class (beS, COURT STAFF) (Filed on 10/18/2010) (Entered: 10/18/2010)
***Deadlines terminated − Hearing 11/12/2010 on Mtn to redefine the certified class vacated 327 Order on Motion to Continue. (be, COURT STAFF) (Filed on 10/18/2010) (Entered: 10/18/2010)
328 Memorandum in Opposition re 318 Defendants' Notice of Motion and Motion to Dismiss filed byJ. Quechaun Allen, Alexis Bronson, Mary Bull, Michele De Ranleau, Leigh Fleming, Sister Bernie Galvin, Lisa Giampaoli, Micky Mangosing,

Case: 3:03-cv-01840-CRB As of: 07/05/2014 11:39 AM PDT 35 of 42

10/22/2010 10/22/2010 10/25/2010 10/29/2010
10/29/2010
10/29/2010 10/29/2010 11/01/2010 11/01/2010 11/04/2010 11/12/2010

Michael Marron, Steve Noh, Diana Smith, Laura Timbrook. (Merin, Mark) (Filed on 10/21/2010) Modified on 10/22/2010 (mjj2, COURT STAFF). (Entered: 10/21/2010)
329 Memorandum in Opposition re 322 MOTION for Reconsideration re 314 Order on Motion to Amend/Correct, Order on Motion for Partial Summary Judgment filed by City and County of San Francisco. (Bonta, Robert) (Filed on 10/22/2010) Modified on 10/25/2010 (mjj2, COURT STAFF). (Entered: 10/22/2010)
330 Declaration of Chief Ellen Brin re 329 In Support of Defendants' Opposition to Plaintiffs' Motion to Alter or Amend An Order Under Fed. R. Civ. Pro. 59(e) filed byCity and County of San Francisco. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Bonta, Robert) (Filed on 10/22/2010) Modified on 10/25/2010 (mjj2, COURT STAFF). (Entered: 10/22/2010)
331 Proposed Order re 329 Memorandum in Opposition, Denying Plaintiffs' Motion to Alter or Amend an Order Under Fed. R. Civ. Pro. Rule 59(e) re: Denial of Amendment of Complaint to Add Brian Vowell as Plaintiff and Class Representative of Redefined Class by City and County of San Francisco. (Bonta, Robert) (Filed on 10/25/2010) (Entered: 10/25/2010)
332 Reply to Opposition re 322 MOTION for Reconsideration re 314 Order on Motion to Amend/Correct, Order on Motion for Partial Summary Judgment Plaintiffs' Motion to Alter or Amend an Order Under FRCP 56(e) re: Denial of Amendment of Complaint to Add Brian Vowell as Plaintiff and Class Representative filed by J. Quechaun Allen, Alexis Bronson, Mary Bull, Michele De Ranleau, Leigh Fleming, Sister Bernie Galvin, Lisa Giampaoli, Micky Mangosing, Michael Marron, Steve Noh, Diana Smith, Laura Timbrook, Brian Vowel. (Merin, Mark) (Filed on 10/29/2010) Modified on 11/1/2010 (mjj2, COURT STAFF). (Entered: 10/29/2010)
333 Declaration of Mark E. Merin in Support of 332 Reply to Opposition,,,, filed byJ. Quechaun Allen, Alexis Bronson, Mary Bull, Michele De Ranleau, Leigh Fleming, Sister Bernie Galvin, Lisa Giampaoli, Micky Mangosing, Michael Marron, Steve Noh, Diana Smith, Laura Timbrook, Brian Vowel. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K)(Related document(s) 332 ) (Merin, Mark) (Filed on 10/29/2010) (Entered: 10/29/2010)
334 Reply to Opposition To 318 Defendant's Motion To Dismiss filed byCity and County of San Francisco. (Chou, Danny) (Filed on 10/29/2010) Modified on 11/1/2010 (mjj2, COURT STAFF). (Entered: 10/29/2010)
335 ERRONEOUS FILING. PLEASE SEE DOCUMENT # 337. Request for Judicial Notice In Support of 334 Reply filed byCity and County of San Francisco. (Attachments: # 1 Exhibit A)(Chou, Danny) (Filed on 10/29/2010) Modified on 11/1/2010 (mjj2, COURT STAFF). Modified on 11/2/2010 (mjj2, COURT STAFF). (Entered: 10/29/2010)
336 CLERKS NOTICE Continuing Motion Hearing Motion(s) Hearing reset for 11/19/2010 10:00 AM in Courtroom 8, 19th Floor, San Francisco. (be, COURT STAFF) (Filed on 11/1/2010) (Entered: 11/01/2010)
337 Request for Judicial Notice re 334 Reply to Opposition (Corrected) filed byCity and County of San Francisco. (Attachments: # 1 Exhibit A)(Related document(s) 334 ) (Chou, Danny) (Filed on 11/1/2010) (Entered: 11/01/2010)
338 ORDER FOR SUPPLEMENTAL BRIEFING. Signed by Judge Charles R. Breyer on November 4, 2010. (crblc2, COURT STAFF) (Filed on 11/4/2010) (Entered: 11/04/2010)
339 Memorandum in Opposition DEFENDANTS' SUPPLEMENTAL BRIEFING PURSUANT TO 338 THE COURT'S NOVEMBER 4, 2010 ORDER (RE PLAINTIFFS' MOTION TO ALTER OR AMEND AN ORDER) filed byCity and County of San Francisco, Michael Hennessey, San Francisco County Sheriff's Department. (Bonta, Robert) (Filed on 11/12/2010) Modified on 11/15/2010 (mcl, COURT STAFF). (Entered: 11/12/2010)

Case: 3:03-cv-01840-CRB As of: 07/05/2014 11:39 AM PDT 36 of 42

11/12/2010 11/12/2010 11/12/2010 11/19/2010
12/10/2010 12/16/2010 12/28/2010 12/29/2010 02/07/2011 02/24/2011
03/04/2011

340 DECLARATION of ROBERT A. BONTA IN SUPPORT OF 339 DEFENDANTS' SUPPLEMENTAL OPPOSITION TO PLAINTIFFS' MOTION FOR RECONSIDERATION filed byCity and County of San Francisco, Michael Hennessey, San Francisco County Sheriff's Department. (Attachments: # 1 Exhibit, # 2 Exhibit)(Bonta, Robert) (Filed on 11/12/2010) Modified on 11/15/2010 (mcl, COURT STAFF). (Entered: 11/12/2010)
341 Brief Re District Court's Jurisdiction Pending Appeal in Response to 338 Court's Order of November 4, 2010 filed by J. Quechaun Allen, Alexis Bronson, Mary Bull, Michele De Ranleau, Leigh Fleming, Sister Bernie Galvin, Lisa Giampaoli, Micky Mangosing, Michael Marron, Steve Noh, Diana Smith, Laura Timbrook. (Merin, Mark) (Filed on 11/12/2010) Modified on 11/15/2010 (mcl, COURT STAFF). (Entered: 11/12/2010)
342 Declaration of Mark E. Merin in Support of 341 Brief, filed byJ. Quechaun Allen, Alexis Bronson, Mary Bull, Michele De Ranleau, Leigh Fleming, Sister Bernie Galvin, Lisa Giampaoli, Micky Mangosing, Michael Marron, Steve Noh, Diana Smith, Laura Timbrook. (Attachments: # 1 Exhibit A)(Related document(s) 341 ) (Merin, Mark) (Filed on 11/12/2010) (Entered: 11/12/2010)
343 Minute Entry: Motion Hearing held on 11/19/2010 before Charles R. Breyer (Date Filed: 11/19/2010) re 322 MOTION for Reconsideration re 314 Order on Motion to Amend/Correct, Order on Motion for Partial Summary Judgment Plaintiffs' Motion to Alter or Amend an Order Under FRCP 56(e) re: Denial of Amendment of Complaint to Add Brian Vowell filed by Michele De Ranleau, Sister Bernie Galvin, Steve Noh, Diana Smith, Mary Bull, Lisa Giampaoli, Alexis Bronson, Leigh Fleming, J. Quechaun Allen, Micky Mangosing, Michael Marron, Laura Timbrook. (Court Reporter Lydia Zinn.) (be, COURT STAFF) (Date Filed: 11/19/2010) (Entered: 11/23/2010)
344 Letter from Robert A. Bonta. (Bonta, Robert) (Filed on 12/10/2010) (Entered: 12/10/2010)
345 ORDER by Judge Charles R. Breyer granting 318 Motion to Dismiss; granting in part and denying in part 322 Motion for Reconsideration (crblc2, COURT STAFF) (Filed on 12/16/2010) (Entered: 12/16/2010)
346 STIPULATION RE TIME TO RESPOND TO FOURTH AMENDED CLASS ACTION COMPLAINT by City and County of San Francisco, Michael Hennessey, San Francisco County Sheriff's Department. (Chou, Danny) (Filed on 12/28/2010) (Entered: 12/28/2010)
347 STIPULATION AND ORDER extending time to and including 1/31/2011 for defendants to file responsive pleading to 4th amended complaint; Signed by Judge Charles R Breyer on 12/29/2010. (awb, COURT STAFF) (Filed on 12/29/2010) (Entered: 12/29/2010)
348 Defendant's ANSWER to Complaint with Jury Demand Defendant's Answer to 315 Plaintiffs' Fourth Amended Class Action Complaint byCity and County of San Francisco. (Chou, Danny) (Filed on 2/7/2011) Modified on 2/8/2011 (mcl, COURT STAFF). (Entered: 02/07/2011)
349 AMENDED COMPLAINT Fifth Amended Class Action Complaint (Filed Pursuant to Order dated 12/17/10); Demand for Jury Trial against City and County of San Francisco, San Francisco County Sheriff's Department, San Francisco County Sheriff's Deputies. Filed byDiana Smith, Mary Bull, Micky Mangosing, Leigh Fleming, Michael Marron, Michele De Ranleau, Alexis Bronson, Steve Noh, Lisa Giampaoli, J. Quechaun Allen, Brian Vowel, Sister Bernie Galvin, Laura Timbrook. (Attachments: # 1 Exhibit A)(Merin, Mark) (Filed on 2/24/2011) (Entered: 02/24/2011)
350 Amended MOTION to Certify Class filed by J. Quechaun Allen, Alexis Bronson, Mary Bull, Michele De Ranleau, Leigh Fleming, Sister Bernie Galvin, Lisa Giampaoli, Micky Mangosing, Michael Marron, Steve Noh, Diana Smith, Laura Timbrook, Brian Vowel. Motion Hearing set for 5/6/2011 10:00 AM in Courtroom 8, 19th Floor, San Francisco before Hon. Charles R. Breyer. (Attachments: # 1 Proposed Order)(Merin, Mark) (Filed on 3/4/2011) (Entered: 03/04/2011)

Case: 3:03-cv-01840-CRB As of: 07/05/2014 11:39 AM PDT 37 of 42

03/04/2011
03/10/2011 03/18/2011 04/13/2011
04/13/2011 04/13/2011 04/15/2011 04/18/2011 04/18/2011 06/03/2011 06/03/2011

351 Declaration of Mark E. Merin in Support of 350 Amended MOTION to Certify Class filed byJ. Quechaun Allen, Alexis Bronson, Mary Bull, Michele De Ranleau, Leigh Fleming, Sister Bernie Galvin, Lisa Giampaoli, Micky Mangosing, Michael Marron, Steve Noh, Diana Smith, Laura Timbrook, Brian Vowel. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16−1, # 17 Exhibit 16−2, # 18 Exhibit 16−3, # 19 Exhibit 17, # 20 Exhibit 18, # 21 Exhibit 19, # 22 Exhibit 20, # 23 Exhibit 21−1, # 24 Exhibit 21−2, # 25 Exhibit 22, # 26 Exhibit 23, # 27 Exhibit 24, # 28 Exhibit 25, # 29 Exhibit 26)(Related document(s) 350 ) (Merin, Mark) (Filed on 3/4/2011) (Entered: 03/04/2011)
352 DEFENDANT'S ANSWER to 349 Fifth Amended Complaint DEFENDANT'S ANSWER TO PLAINTIFFS' FIFTH AMENDED CLASS ACTION COMPLAINT byCity and County of San Francisco, Michael Hennessey, San Francisco County Sheriff's Department. (Bonta, Robert) (Filed on 3/10/2011) Modified on 3/11/2011 (mcl, COURT STAFF). (Entered: 03/10/2011)
353 NOTICE of Change In Counsel by Mark E. Merin, Esq (Merin, Mark) (Filed on 3/18/2011) (Entered: 03/18/2011)
354 MOTION WITHDRAWN PER 357 NOTICE OF WITHDRAWAL MOTION to Continue DEFENDANTS' ADMINISTRATIVE MOTION TO CONTINUE THE HEARING ON PLAINTIFFS' MOTION TO REDEFINE THE CERTIFIED CLASS FROM MAY 6, 2011 to JULY 29, 2011 filed by City and County of San Francisco, Michael Hennessey, San Francisco County Sheriff's Department. (Bonta, Robert) (Filed on 4/13/2011) Modified on 4/18/2011 (mjj2, COURT STAFF). (Entered: 04/13/2011)
355 Declaration of Robert A. Bonta in Support of 354 MOTION to Continue DEFENDANTS' ADMINISTRATIVE MOTION TO CONTINUE THE HEARING ON PLAINTIFFS' MOTION TO REDEFINE THE CERTIFIED CLASS FROM MAY 6, 2011 to JULY 29, 2011 filed byCity and County of San Francisco, Michael Hennessey, San Francisco County Sheriff's Department. (Related document(s) 354 ) (Bonta, Robert) (Filed on 4/13/2011) (Entered: 04/13/2011)
356 Proposed Order re 354 MOTION to Continue DEFENDANTS' ADMINISTRATIVE MOTION TO CONTINUE THE HEARING ON PLAINTIFFS' MOTION TO REDEFINE THE CERTIFIED CLASS FROM MAY 6, 2011 to JULY 29, 2011 by City and County of San Francisco, Michael Hennessey, San Francisco County Sheriff's Department. (Bonta, Robert) (Filed on 4/13/2011) (Entered: 04/13/2011)
357 NOTICE by City and County of San Francisco, Michael Hennessey, San Francisco County Sheriff's Department Notice of Withdrawal of 354 Administrative Motion to Continue the Hearing on Plaintiff's Motion to Redefine the Certified Class from May 6, 2011 to July 29, 2011 (Bonta, Robert) (Filed on 4/15/2011) Modified on 4/18/2011 (mjj2, COURT STAFF). (Entered: 04/15/2011)
358 NOTICE by Mary Bull re 350 Amended MOTION to Certify Class, 351 Declaration in Support,,, RE−NOTICE OF HEARING TO JULY 29, 2011 ON PLAINTIFFS' MOTION TO REDEFINE THE CERTIFIED CLASS (Schwartz, Andrew) (Filed on 4/18/2011) (Entered: 04/18/2011)
Set/Reset Deadlines as to 350 Amended MOTION to Certify Class. Motion Hearing set for 7/29/2011 10:00 AM in Courtroom 8, 19th Floor, San Francisco before Hon. Charles R. Breyer. (mjj2S, COURT STAFF) (Filed on 4/18/2011) (Entered: 04/19/2011)
359 Declaration of Robert Bonta In Support of Defendants' Administrative Motion to Stay Trial Court Proceedings Pending the Decision of the United States Supreme Court in Albert W. Florence v. Board of Chosen Freeholders of the County of Burlington, et al., No. 10−945 filed byCity and County of San Francisco. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Bonta, Robert) (Filed on 6/3/2011) (Entered: 06/03/2011)
360 Proposed Order Granting Defendants' Administrative Motion to stay Trial Court Proceedings pending the Decision of the United States Supreme Court in Albert W. Florence v. Board of Chosen Freeholders of the County of Burlington, et al. No.

Case: 3:03-cv-01840-CRB As of: 07/05/2014 11:39 AM PDT 38 of 42

06/03/2011 06/07/2011 06/07/2011
06/09/2011 06/09/2011 06/10/2011 06/10/2011 06/14/2011

10−945 by City and County of San Francisco. (Bonta, Robert) (Filed on 6/3/2011) (Entered: 06/03/2011)
361 MOTION to Stay Defendants' Administrative Motion to Stay Trial Court Proceedings Pending the Decision of the United States Supreme Court in Albert W. Florence v. Board of Chosen Freeholders of the County of Burlington, et al. No. 10−945 filed by City and County of San Francisco. (Bonta, Robert) (Filed on 6/3/2011) (Entered: 06/03/2011)
362 RESPONSE (re 361 MOTION to Stay Defendants' Administrative Motion to Stay Trial Court Proceedings Pending the Decision of the United States Supreme Court in Albert W. Florence v. Board of Chosen Freeholders of the County of Burlington, et al. No. 10−945 ) filed byJ. Quechaun Allen, Alexis Bronson, Mary Bull, Michele De Ranleau, Leigh Fleming, Sister Bernie Galvin, Lisa Giampaoli, Micky Mangosing, Michael Marron, Steve Noh, Diana Smith, Laura Timbrook, Brian Vowel. (Attachments: # 1 Proposed Order)(Merin, Mark) (Filed on 6/7/2011) (Entered: 06/07/2011)
363 Declaration of Mark E. Merin in Support of 362 Opposition/Response to Motion,, Plaintiffs' Opposition to Defendants' Administrative Motion to Stay Trial Court Proceedings filed byJ. Quechaun Allen, Alexis Bronson, Mary Bull, Michele De Ranleau, Leigh Fleming, Sister Bernie Galvin, Lisa Giampaoli, Micky Mangosing, Michael Marron, Steve Noh, Diana Smith, Laura Timbrook, Brian Vowel. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23)(Related document(s) 362 ) (Merin, Mark) (Filed on 6/7/2011) (Entered: 06/07/2011)
364 ORDER SETTING HEARING ON ADMINISTRATIVE MOTION TO STAY. Signed by Judge Charles R. Breyer on June 9, 2011. (crblc2, COURT STAFF) (Filed on 6/9/2011) (Entered: 06/09/2011)
Set/Reset Deadlines as to 361 MOTION to Stay Defendants' Administrative Motion to Stay Trial Court Proceedings Pending the Decision of the United States Supreme Court in Albert W. Florence v. Board of Chosen Freeholders of the County of Burlington, et al. No. 10−945. Brief in Support of Motion to Stay due by 6/17/2011. Responses due by 6/24/2011. Replies due by 6/29/2011. Motion Hearing set for 7/5/2011 10:00 AM in Courtroom 6, 17th Floor, San Francisco before Hon. Charles R. Breyer. (beS, COURT STAFF) (Filed on 6/9/2011) (Entered: 06/10/2011)
365 MOTION to Continue DEFENDANTS' ADMINISTRATIVE MOTION TO CONTINUE DISCOVERY AND THE BRIEFING AND HEARING ON PLAINTIFF'S MOTION TO REDEFINE THE CERTIFIED CLASS PENDING THE COURT'S RULING ON DEFENDANTS' MOTION TO STAY filed by City and County of San Francisco. (Bonta, Robert) (Filed on 6/10/2011) (Entered: 06/10/2011)
366 Proposed Order Granting 365 Defendants' Administrative Motion to Continue Discovery and the Briefing and Hearing on Plaintiff's Motion to Redefine The Certified Class Pending The Court's Ruling on Defendants' Motion to Stay by City and County of San Francisco. (Bonta, Robert) (Filed on 6/10/2011) Modified on 6/13/2011 (mcl, COURT STAFF). (Entered: 06/10/2011)
367 RESPONSE (re 365 MOTION to Continue DEFENDANTS' ADMINISTRATIVE MOTION TO CONTINUE DISCOVERY AND THE BRIEFING AND HEARING ON PLAINTIFF'S MOTION TO REDEFINE THE CERTIFIED CLASS PENDING THE COURT'S RULING ON DEFENDANTS' MOTION TO STAY ) Plaintiffs' Opposition filed byJ. Quechaun Allen, Alexis Bronson, Mary Bull, Michele De Ranleau, Leigh Fleming, Sister Bernie Galvin, Lisa Giampaoli, Micky Mangosing, Michael Marron, Steve Noh, Diana Smith, Laura Timbrook, Brian Vowel. (Attachments: # 1 Proposed Order)(Merin, Mark) (Filed on 6/14/2011) (Entered: 06/14/2011)

Case: 3:03-cv-01840-CRB As of: 07/05/2014 11:39 AM PDT 39 of 42

06/15/2011
06/16/2011 06/16/2011 06/17/2011
06/17/2011
06/17/2011 06/23/2011
06/29/2011 07/05/2011

368 Due to Judge Chen's elevation to Article III status, this case is re−referred to Magistrate Judge Nathanael M. Cousins for discovery. All matters scheduled before, and deadlines set by, Judge Chen are hereby vacated. All future discovery matters should be addressed to Judge Cousins unless otherwise ordered by the presiding judge. Until Judge Cousins takes the bench on July 5, 2011, any urgent discovery issues requiring immediate judicial attention should be addressed to Acting Chief Magistrate Judge Joseph C. Spero by contacting his courtroom deputy, Karen Hom, at (415) 522−2035.(cmw, COURT STAFF) (Filed on 6/15/2011) (Entered: 06/15/2011)
369 ORDER by Judge Charles R. Breyer granting in part and denying in part 365 Motion to Continue (crblc2, COURT STAFF) (Filed on 6/16/2011) (Entered: 06/16/2011)
***Hearing date terminated re 350 Motion to Redefine the Class. (mcl, COURT STAFF) (Entered: 06/17/2011)
370 MOTION to Stay DEFENDANTS' NOTICE OF MOTION AND MOTION TO STAY TRIAL COURT PROCEEDINGS PENDING THE DECISION OF THE UNITED STATES SUPREME COURT IN ALBERT W. FLORENCE V. BOARD OF CHOSEN FREEHOLDERS OF THE COUNTY OF BURLINGTON, ET AL., NO. 10−945; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF filed by City and County of San Francisco, Michael Hennessey, San Francisco County Sheriff's Department. Motion Hearing set for 7/5/2011 10:00 AM in Courtroom 6, 17th Floor, San Francisco before Hon. Charles R. Breyer. Responses due by 7/19/2011. (Bonta, Robert) (Filed on 6/17/2011) (Entered: 06/17/2011)
371 Declaration of Robert A. Bonta in Support of 370 MOTION to Stay DEFENDANTS' NOTICE OF MOTION AND MOTION TO STAY TRIAL COURT PROCEEDINGS PENDING THE DECISION OF THE UNITED STATES SUPREME COURT IN ALBERT W. FLORENCE V. BOARD OF CHOSEN FREEHOLDERS OF THE COUNTY OF BURLINGTON, ET AL., NO. 10−945 filed byCity and County of San Francisco, Michael Hennessey, San Francisco County Sheriff's Department. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Related document(s) 370 ) (Bonta, Robert) (Filed on 6/17/2011) (Entered: 06/17/2011)
372 Proposed Order re 370 MOTION to Stay DEFENDANTS' NOTICE OF MOTION AND MOTION TO STAY TRIAL COURT PROCEEDINGS PENDING THE DECISION OF THE UNITED STATES SUPREME COURT IN ALBERT W. FLORENCE V. BOARD OF CHOSEN FREEHOLDERS OF THE COUNTY OF BURLINGTON, ET AL., NO. 10−945 by City and County of San Francisco, Michael Hennessey, San Francisco County Sheriff's Department. (Bonta, Robert) (Filed on 6/17/2011) (Entered: 06/17/2011)
373 RESPONSE (re 370 MOTION to Stay DEFENDANTS' NOTICE OF MOTION AND MOTION TO STAY TRIAL COURT PROCEEDINGS PENDING THE DECISION OF THE UNITED STATES SUPREME COURT IN ALBERT W. FLORENCE V. BOARD OF CHOSEN FREEHOLDERS OF THE COUNTY OF BURLINGTON, ET AL., NO. 10−945 ) Plaintiffs' Opposition filed byJ. Quechaun Allen, Alexis Bronson, Mary Bull, Michele De Ranleau, Leigh Fleming, Sister Bernie Galvin, Lisa Giampaoli, Micky Mangosing, Michael Marron, Steve Noh, Diana Smith, Laura Timbrook, Brian Vowel. (Attachments: # 1 Proposed Order)(Merin, Mark) (Filed on 6/23/2011) (Entered: 06/23/2011)
374 REPLY (re 370 MOTION to Stay DEFENDANTS' NOTICE OF MOTION AND MOTION TO STAY TRIAL COURT PROCEEDINGS PENDING THE DECISION OF THE UNITED STATES SUPREME COURT IN ALBERT W. FLORENCE V. BOARD OF CHOSEN FREEHOLDERS OF THE COUNTY OF BURLINGTON, ET AL., NO. 10−945 ) filed byCity and County of San Francisco. (Bonta, Robert) (Filed on 6/29/2011) (Entered: 06/29/2011)
375 Minute Entry: Motion Hearing held on 7/5/2011 before Charles R. Breyer (Date Filed: 7/5/2011) re 370 MOTION to Stay DEFENDANTS' NOTICE OF MOTION AND MOTION TO STAY TRIAL COURT PROCEEDINGS PENDING THE DECISION OF THE UNITED STATES SUPREME COURT IN ALBERT W.

Case: 3:03-cv-01840-CRB As of: 07/05/2014 11:39 AM PDT 40 of 42

08/25/2011 04/10/2012 04/19/2012
04/20/2012 04/20/2012 05/07/2012 05/11/2012 05/25/2012 06/08/2012 06/14/2012 07/31/2012
08/22/2012 08/22/2012 08/23/2012

FLORENCE V. BOARD OF CHOSEN FREEHOLDERS OF THE COUNTY OF BURLINGTON, ET AL., NO. 10−945 filed by San Francisco County Sheriff's Department, Michael Hennessey, City and County of San Francisco. (Court Reporter Lydia Zinn.) (beS, COURT STAFF) (Date Filed: 7/5/2011) (Entered: 07/06/2011)
376 NOTICE of Change of Address by Mark E. Merin, Esq (Merin, Mark) (Filed on 8/25/2011) (Entered: 08/25/2011)
CLERKS NOTICE Status Conference set for 4/20/2012 08:30 AM in Courtroom 6, 17th Floor, San Francisco before Hon. Charles R. Breyer. This is a test only docket entry, ther is no document associated with this notice. (tlS, COURT STAFF) (Filed on 4/10/2012) (Entered: 04/10/2012)
377 JOINT CASE MANAGEMENT STATEMENT filed by J. Quechaun Allen, Alexis Bronson, Mary Bull, Michele De Ranleau, Leigh Fleming, Sister Bernie Galvin, Lisa Giampaoli, Micky Mangosing, Michael Marron, Steve Noh, Diana Smith, Laura Timbrook, Brian Vowel. (Merin, Mark) (Filed on 4/19/2012) (Entered: 04/19/2012)
378 Minute Entry: Status Conference held before Judge Charles R. Breyer. (no reported) (tmi, COURT STAFF) (Date Filed: 4/20/2012) (Entered: 04/20/2012)
CASE REFERRED to Magistrate Judge Joseph C. Spero for Settlement. (tmi, COURT STAFF) (Filed on 4/20/2012) (Entered: 04/20/2012)
379 Notice of Settlement Conference And Order Setting Settlement Conference before Magistrate Judge Joseph C. Spero. Settlement Conference set for 8/8/2012 at 09:30 AM in Courtroom G, 15th Floor, San Francisco. Signed by Judge Joseph C. Spero on 5/7/12. (klhS, COURT STAFF) (Filed on 5/7/2012) (Entered: 05/07/2012)
380 ASSOCIATION of Counsel TERMINATION OF ASSOCIATION by City and County of San Francisco. (Newdorf, David) (Filed on 5/11/2012) (Entered: 05/11/2012)
381 Letter from Andrew C. Schwartz . (Schwartz, Andrew) (Filed on 5/25/2012) (Entered: 05/25/2012)
382 STIPULATION WITH PROPOSED ORDER to continue time for plaintiffs to file motion to redefine the class filed by Mary Bull. (Schwartz, Andrew) (Filed on 6/8/2012) (Entered: 06/08/2012)
383 ORDER re 382 STIPULATION WITH PROPOSED ORDER to continue time for plaintiffs to file motion to redefine the class filed by Mary Bull. Motion to redefine class due by 9/15/2012. Signed by Judge Charles R. Breyer on 6/11/2012. (beS, COURT STAFF) (Filed on 6/14/2012) (Entered: 06/14/2012)
384 DOCUMENT SEALED. FILED IN ERROR Statement DEFENDANTS' SETTLEMENT CONFERENCE STATEMENT by City and County of San Francisco, Michael Hennessey, San Francisco County Sheriff's Department. (Bonta, Robert) (Filed on 7/31/2012) Modified on 8/1/2012 (klhS, COURT STAFF). (Entered: 07/31/2012)
385 Minute Entry: Settlement Conference held on 8/8/12. Telephonic discussions to continue. (Court Reporter Not Reported.) (klhS, COURT STAFF) (Date Filed: 8/22/2012) (Entered: 08/22/2012)
386 Minute Entry: Telephonic Settlement Conference held on 8/22/12. Further settlement conference, if necessary, set for 10/2/12 at 11:00 AM. (Court Reporter Not Reported.) (klhS, COURT STAFF) (Date Filed: 8/22/2012) (Entered: 08/22/2012)
387 Notice and Order Setting Further Settlement Conference before Magistrate Judge Joseph C. Spero. Further Settlement Conference, if necessary, set for 10/2/2012 11:00 AM in Courtroom G, 15th Floor, San Francisco. Signed by Judge Joseph C. Spero on 8/23/12. (klhS, COURT STAFF) (Filed on 8/23/2012) (Entered: 08/23/2012)

Case: 3:03-cv-01840-CRB As of: 07/05/2014 11:39 AM PDT 41 of 42

09/20/2012 09/21/2012
01/16/2013 03/20/2013
04/04/2013 04/12/2013 04/15/2013 05/08/2013 05/08/2013 05/23/2013 06/13/2013 06/14/2013 06/21/2013
06/28/2013
06/28/2013

388 STATUS REPORT Re Settlement by Mary Bull. (Merin, Mark) (Filed on 9/20/2012) (Entered: 09/20/2012)
389 CLERKS NOTICE that pursuant to the Joint Status Report re: Settlement, the Further Settlement Conference set for 10/2/12 at 11:00 AM before Magistrate Judge Joseph C. Spero is hereby VACATED. This is a text only entry. There is no document associated with this Notice . (klhS, COURT STAFF) (Filed on 9/21/2012) (Entered: 09/21/2012)
390 NOTICE of Appearance by Owen J. Clements (Clements, Owen) (Filed on 1/16/2013) (Entered: 01/16/2013)
391 STIPULATION WITH PROPOSED ORDER Dismissing Class Claims, With Prejudice, and Approving the Stipulated Settlement and Form of Class Notice filed by Mary Bull. (Attachments: # 1 Joint Application, # 2 Exhibit 1 − Settlement Agreement, # 3 Exhibit 2 − Notice of Dismissal)(Merin, Mark) (Filed on 3/20/2013) (Entered: 03/20/2013)
CLERKS NOTICE Status Conference re 391 set for 4/12/2013 10:00 AM in Courtroom 6, 17th Floor, San Francisco before Hon. Charles R. Breyer. (Text entry only, no document associated with this entry). (beS, COURT STAFF) (Filed on 4/4/2013) (Entered: 04/04/2013)
392 Minute Entry: Status Conference (Date Filed: 4/12/2013). (Court Reporter Belle Ball.) (beS, COURT STAFF) (Date Filed: 4/12/2013) (Entered: 04/12/2013)
393 ORDER REQUIRING NOTICE TO CLASS. Signed by Judge Charles R. Breyer on 04/15/2013. (crblc2, COURT STAFF) (Filed on 4/15/2013) (Entered: 04/15/2013)
394 NOTICE by J. Quechaun Allen, Alexis Bronson, Mary Bull, Michele De Ranleau, Leigh Fleming, Sister Bernie Galvin, Lisa Giampaoli, Micky Mangosing, Michael Marron, Steve Noh, Diana Smith, Laura Timbrook, Brian Vowel of Final Approval Hearing (Merin, Mark) (Filed on 5/8/2013) (Entered: 05/08/2013)
Set/Reset Hearing re 394 Notice. Motion Hearing set for 6/28/2013 10:00 AM before Hon. Charles R. Breyer. (mclS, COURT STAFF) (Entered: 05/09/2013)
395 OBJECTIONS by Betty Lemmons. (mclS, COURT STAFF) (Filed on 5/23/2013) (Entered: 05/24/2013)
396 OBJECTIONS David Jah. (mclS, COURT STAFF) (Filed on 6/13/2013) (Entered: 06/14/2013)
397 OBJECTIONS by Reginald Luther Scott. (mclS, COURT STAFF) (Filed on 6/14/2013) (Entered: 06/14/2013)
398 Statement of the Parties in Support of Their Joint Application for Stipulated Settlement by J. Quechaun Allen, Alexis Bronson, Mary Bull, Michele De Ranleau, Leigh Fleming, Sister Bernie Galvin, Lisa Giampaoli, Micky Mangosing, Michael Marron, Steve Noh, Diana Smith, Laura Timbrook, Brian Vowel. (Attachments: # 1 Declaration of L. Stephens Tilghman in Support of Joint Application for Stipulated Settlement, # 2 Exhibit 1 to Tilghman Dec.)(Merin, Mark) (Filed on 6/21/2013) (Entered: 06/21/2013)
399 STIPULATION WITH PROPOSED ORDER for Dismissal of Class Claims, Without Prejudice, and Approving the Stipulated Settlement filed by J. Quechaun Allen, Alexis Bronson, Mary Bull, Michele De Ranleau, Leigh Fleming, Sister Bernie Galvin, Lisa Giampaoli, Micky Mangosing, Michael Marron, Steve Noh, Diana Smith, Laura Timbrook, Brian Vowel. (Merin, Mark) (Filed on 6/28/2013) (Entered: 06/28/2013)
400 Order by Hon. Charles R. Breyer Dismissing Class Claims without Prejudice and Approving the Stipulated Settlement (399).Associated Cases: 3:03−cv−01840−CRB, 3:03−cv−03105−CRB, 3:03−cv−04022−CRB, 3:03−cv−04692−CRB, 3:04−cv−03729−CRB(crblc3S, COURT STAFF) (Filed on 6/28/2013) (Entered: 06/28/2013)

Case: 3:03-cv-01840-CRB As of: 07/05/2014 11:39 AM PDT 42 of 42

06/28/2013 08/01/2013

401 Minute Entry: Motion Hearing held on 6/28/2013 before Charles R. Breyer (Date Filed: 6/28/2013) re 399 STIPULATION WITH PROPOSED ORDER for Dismissal of Class Claims, Without Prejudice, and Approving the Stipulated Settlement filed by Michele De Ranleau, Sister Bernie Galvin, Steve Noh, Diana Smith, Mary Bull, Lisa Giampaoli, Alexis Bronson, Leigh Fleming, J. Quechaun Allen, Brian Vowel, Micky Mangosing, Michael Marron, Laura Timbrook. (Court Reporter Lydia Zinn.) (beS, COURT STAFF) (Date Filed: 6/28/2013) (Entered: 07/01/2013)
402 OBJECTIONS by Richard Scott. (mclS, COURT STAFF) (Filed on 8/1/2013) (Entered: 08/02/2013)

 
 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, v.

No. 05-17080
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.

 MARY BULL; JONAH ZERN, and all

others similarly situated; LAURA

TIMBROOK; LEIGH FLEMING; CHARLI

JOHNSON; MICKY MANGOSING;

ALEXIS BRONSON; MARCY CORNEAU; LISA GIAMPAOLI,

No. 06-15566

 Plaintiffs-Appellees, v.

D.C. No. CV-03-01840-CRB/
EMC

CITY AND COUNTY OF SAN FRANCISCO; SAN FRANCISCO COUNTY

OPINION

SHERIFF’S DEPARTMENT; MICHAEL

HENNESSEY, Sheriff; SAN FRANCISCO

COUNTY SHERIFF’S DEPUTIES,

 Defendants-Appellants.

11471

11472 BULL v. CITY AND COUNTY OF SAN FRANCISCO
Appeal from the United States District Court for the Northern District of California
Charles R. Breyer, District Judge, Presiding
Argued and Submitted November 6, 2007—San Francisco, California
Filed August 22, 2008
Before: Sidney R. Thomas, Richard C. Tallman, and Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Thomas; Concurrence by Judge Ikuta;
Dissent by Judge Tallman

BULL v. CITY AND COUNTY OF SAN FRANCISCO 11475
COUNSEL
Dennis J. Herrera, City Attorney; Joanne Hoeper, Chief Trial Attorney; and David B. Newdorf (argued) and Robert A. Bonta, City Attorneys, for the appellants.
Marke 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
THOMAS, Circuit Judge:
In this interlocutory appeal, we consider whether a blanket policy of strip searching without reasonable suspicion of all individuals arrested and classified for housing in the general jail population violates the arrestees’ clearly established constitutional rights. Under the circumstances presented by this case, we conclude that it does, and affirm the order of the district court denying qualified immunity in this § 1983 class action suit.

11476

BULL v. CITY AND COUNTY OF SAN FRANCISCO I

The San Francisco Sheriff’s Department (“Department”) oversees an urban jail system, consisting of six county jails, which books and processes tens of thousands of persons a year. All new arrestees are brought to County Jail No. 9 where they are booked and a determination is made as to whether the arrestee will be released or housed pending arraignment. County Jail No. 9 is a temporary detention facility and does not contain accommodations for extended stays. Thus, all detainees who are classified for housing are transferred to another one of San Francisco’s jails within 24 hours.

San Francisco’s jails have faced a continuing problem with smuggled contraband, including drugs and weapons. Searches within the general jail population have uncovered hundreds of items of contraband. Many items of contraband have been discovered during strip searches conducted on new arrestees at County Jail No. 9. Defendants produced evidence of 49 discoveries of drug-related contraband and six weapon discoveries between April 2000 and January 2004.

Until January 21 2004, San Francisco had a policy1 of strip
searching all arrestees entering County Jail No. 9 who fell into multiple particular categories.2 The strip search involved

1San Francisco’s new policy, which went into effect January 21, 2004 and currently remains in effect, is not at issue in this case.
2According to the San Francisco Sheriff’s Department’s Policy and Procedure manual, the following categories of arrestees were required to be strip searched at the time of booking:

• An arrestee charged with a crime involving drugs, weapons, or violence;

• An arrestee with a criminal history involving drugs, weapons, or violence within the preceding five years or multiple arrests within the last five years for drugs, weapons, or violence;

BULL v. CITY AND COUNTY OF SAN FRANCISCO 11477 inspection of the naked body, including the arrestee’s breasts, buttocks, and genitalia.
According to Defendants, the strip search policy was applied as follows: upon arrival at County Jail No. 9, all inmates who were deemed searchable based on their charge or criminal history were automatically strip searched. Other arrestees were generally not strip searched unless they were
• A person charged with a parole violation or booked with a state parole hold;
• A person charged with violation of probation;
• A person in custody on detainer from another jurisdiction;
• A person returned to custody from San Francisco County parole;
• A person returned to custody from residential placement programs;
• A person in custody of another agency, booked into jail for safe-keeping;
• A person booked on a U.S. Marshal hold;
• A person assigned a custody level and scheduled for custodial housing;
• A person delivered from another jail.
The manual also stipulated that any arrestee may be strip searched by the “arresting, transporting, or booking officer” when the officer “has a reasonable suspicion based on articulable facts that the person may possess contraband.

11478 BULL v. CITY AND COUNTY OF SAN FRANCISCO
identified for placement in a safety cell,3 or if the detainee would not be released within twenty-four hours and therefore would need to be housed in another jail facility. In other words, the Department followed a blanket policy of strip searching all individuals who were classified for housing in the general jail population, regardless of the crime for which they were charged.
On April 23, 2003, Mary Bull and a class of similarlysituated plaintiffs brought a § 1983 suit against Defendants alleging causes of action under the Fourth and Fourteenth Amendments of the U.S. Constitution, and several provisions of state law. In an order issued June 10, 2004, the district court granted Bull’s motion to certify a class under Rule 23(b)(3). The class was defined as:
All persons who, during the applicable period of limitations, and continuing to date, 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 suspicion that they were concealing contraband. This class also includes 1) all arrestees who were subjected 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
3Safety cells are single-occupant, padded cells used to house inmates who were considered a danger to themselves or others, to be behaving in a “bizarre” manner, or to be “gravely disabled.”

BULL v. CITY AND COUNTY OF SAN FRANCISCO 11479
placement in a “safety cell” at any of the San Francisco County jails.
The class was further limited by the district court’s February 23, 2006 order, which held that San Francisco’s policy of strip searching arrestees on the basis of their criminal history was lawful.4 The persons in the class as it stands before this Court are thus all arrestees who were strip searched prior to arraignment solely because they were classified for housing in the general jail population prior to their arraignment.
The parties filed cross-motions for summary judgment. On September 22, 2005 the district court granted in part and denied in part both motions. In relevant part, the district court held that Sheriff Hennessey was not entitled to qualified immunity with respect to San Francisco’s blanket policy of strip searching all individuals classified for housing in the general jail population. Defendants now appeal the district court’s denial of qualified immunity for Sheriff Hennessey.5
II
We review de novo a district court’s decision to grant summary judgment on the ground of qualified immunity. Motley v. Parks, 383 F.3d 1058, 1062 (9th Cir. 2004). In reviewing
4Specifically, the court excluded arrestees with one or more prior convictions or two or more prior arrests for crimes involving drugs, weapons or violence within the prior five years.
5On October 21, 2006 Defendants moved for reconsideration of portions of the district court’s August 30, 2005 Order that were unrelated to the court’s denial of qualified immunity for the Sheriff. Defendants simultaneously appealed the denial of qualified immunity to this Court. This appeal was assigned Docket No. 05-17080. On February 23, 2006 the district court issued an Amended Memorandum and Order Re: Motions for Summary Judgment. Defendants again appealed the denial of qualified immunity to this Court. This second appeal was assigned Docket No. 0615566. On April 26, 2006, this Court issued an Order consolidating appeals No. 05-17080 and 06-15566.

11480 BULL v. CITY AND COUNTY OF SAN FRANCISCO
a district court’s grant of summary judgment we must determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 922 (9th Cir. 2004).
To determine whether a government employee is entitled to qualified immunity, we use a two-part test. Saucier v. Katz, 533 U.S. 194, 201 (2001). First, we must determine whether, viewing the facts in the light most favorable to the plaintiff, the government employees violated the plaintiff’s constitutional rights. Id. Then, if we determine that a constitutional violation has occurred, we must determine whether the rights were clearly established at the time of the violation. Id.
A
We turn first to the question of whether a policy of strip searching arrestees solely because they are classified for housing in the general population, in the absence of any reasonable suspicion, violates the arrestees’ constitutional rights. Following a long history of precedent, we conclude that it clearly does.
[1] In the first case to raise the question, 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 announced the governing standard that “arrestees for minor offenses may be subjected to a strip search only if jail officials have a reasonable suspicion that the particular arrestee is carrying or concealing contraband or suffering from a communicable disease.” Id. at 615.6
6The dissent’s suggestion that this standard was stated in dicta is disingenuous. The full text of the sentence quoted above is as follows: “We hold that arrestees for minor offenses may be subjected to a strip search

BULL v. CITY AND COUNTY OF SAN FRANCISCO 11481
[2] We have revisited pre-arraignment searches several times, on each occasion reaffirming the individualized reasonable suspicion standard laid out in Giles. In Ward v. County of San Diego, 791 F.2d 1329 (9th Cir. 1986), we found no qualified immunity for a San Diego County Sheriff who had enacted a blanket strip search policy which resulted in the visual body cavity search of a misdemeanor arrestee prior to a determination regarding the arrestee’s eligibility for an own recognizance release. 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.” Id. at 1447. The next year, however, we held unconstitutional the City of Los Angeles’s blanket strip search policy which subjected all felony arrestees to a visual body cavity search. Kennedy v. Los Angeles Police Dept., 901 F.2d 702, 714 (9th Cir. 1990), abrogated on other grounds by Hunter v. Bryant, 502 U.S. 224 (1991) (per curiam). In Kennedy, we emphasized that while a charge of a violent offense, such as the charge in Thompson, may justify a strip search, the mere fact of a felony charge bears no reasonable relationship to institutional security concerns. Id. at 713 (“[T]he enacted policy, if it is to be constitutional, must be ‘reasonably related’ to the penal institution’s interest in maintaining security.”). In short, under controlling circuit precedent, a blanket strip search of pre-arraignment arrestees, no matter how minor the offense and in absence of reasonable suspicion, violates the Constitution.
Defendants argue that San Francisco’s policy is constitutional under Bell v. Wolfish, 441 U.S. 520 (1979), in which
only if jail officials have a reasonable suspicion that the particular arrestee is carrying or concealing contraband or suffering from a communicable disease.” Giles, 746 F.2d at 615 (emphasis added). The dissent may dislike the holding in Giles but there is no reasonable dispute that the above statement is the holding, not mere dicta.

11482 BULL v. CITY AND COUNTY OF SAN FRANCISCO
the Supreme Court addressed a strip search policy applied to prisoners and pre-trial detainees. However, Bell pre-dated the pre-arraignment cases in our circuit, which carefully considered and distinguished Bell.
[3] In Bell the Supreme Court held that strip and visual body cavity searches may, in certain instances, be conducted on prisoners and pretrial detainees in institutional settings with less than probable cause. 441 U.S. at 560. In determining whether an institutional search policy is reasonable under the Fourth Amendment, a court must balance “the need for the particular search against the invasion of personal rights that the search entails.” Id. at 559. In each case, a court “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. Giles, Ward, Thompson, and Kennedy were each decided subsequent to, and with the benefit of, the Supreme Court’s holding in Bell.
Defendants also argue that San Francisco’s strip search policy was justified by the fact that the arrestees were to be transferred for housing in the general jail population, noting that the introduction of contraband to the general population raises serious security concerns. However, we have previously made clear that although the fact that an arrestee is to be “placed into contact with the general jail population” is one important factor among many that may be considered in gauging the reasonableness of a search, “such a factor by itself cannot justify a strip search.” Thompson, 885 F.2d at 1447; see also Giles, 746 F.2d at 618-19 (rejecting the notion that placement in the general jail population was enough to validate a strip search because “intermingling is both limited and avoidable”).
[4] “The intrusiveness of a body-cavity search cannot be overstated.” Kennedy, 901 F.2d at 711. To justify such a “dehumanizing and humiliating,” id., invasion of privacy, there must be some reasonable relationship between the criteria used to identify the specific individuals eligible for a strip

BULL v. CITY AND COUNTY OF SAN FRANCISCO 11483
search and the interest in preventing the introduction of contraband. See Giles, 746 F.2d at 618 (reasonableness requirement under the Fourth Amendment requires that the strip search bear some “discernible relationship to security needs” (quoting Logan v. Shealy, 660 F.2d 1007, 1013 (4th Cir. 1981))); see also Kennedy, 901 F.2d at 713 (stressing the importance of documentation supporting the assertion that arrestees within the strip search category smuggle contraband into the jail in greater frequency than arrestees outside of the category). We have consistently noted that factors to be considered in determining whether reasonable suspicion exists to warrant a strip search include “the nature of the offense, the arrestee’s appearance and conduct, and the prior arrest record.” Giles, 746 F.2d at 617; see also Thompson, 885 F.2d at 1446.
[5] The challenged portion of San Francisco’s policy did not consider such individualized factors and required strip searches of arrestees based solely on their classification for housing in the general population. Defendants nonetheless argue that the present case is distinguishable from our long line of precedent because they have produced substantial documentary evidence of the significant problem of contraband in the general population of San Francisco jails. The district court carefully examined the tendered evidence and found that Defendants proffered no evidence demonstrating smuggling by individuals who would qualify for membership in the plaintiff class. Defendants argue that the record “established that many detainees charged with minor offenses tried to smuggle contraband into jail.” However, both Plaintiffs and the district court correctly point out that of the numerous incidents of discovered contraband documented by Defendants and presented to the district court, none clearly documents a single uncontroverted instance of a class member smuggling contraband into a San Francisco facility.
Several of the documented searches were based on permissible factors and the documentation for the remaining inci-

11484 BULL v. CITY AND COUNTY OF SAN FRANCISCO
dents does not contain any evidence relating either to the reason for the search or the arrestee’s eligibility for class membership. To review, the class certified by the district court includes arrestees who were arrested for an offense not involving drugs, weapons, violence, or a violation of parole or probation; who did not have a criminal history involving drugs, weapons, or violence; and whose behavior did not create individualized suspicion warranting a search. The two incidents cited by the Defendants illustrate the deficiency of their documentation. First, Defendants point to an incident on November 19, 2003 in which a man who was arrested on a warrant for maintaining a public nuisance was found smuggling a plastic bag of suspected cocaine powder into the jail. The documentation of this incident in the record consists of an Incident Report and a Field Arrest Card. Neither document indicates whether the arrestee had a criminal history that would legitimize the search or whether there was any other individualized suspicion that would legitimize the search. Without more information, it is impossible to determine whether this particular arrestee would be eligible for class membership. Second, Defendants contend that a strip search of an arrestee, who was not charged with drugs, weapons or violence offenses, uncovered an 8-inch pair of scissors. The only documentation in the record of this incident is a Contraband Form. The Contraband Form does not indicate the charges on which this individual was arrested, the individual’s criminal history, or whether there was any individualized suspicion that prompted the search. It is impossible to tell from the record whether or not this individual is in fact an eligible member of the class. In short, Defendants’ claim that they have documented instances of eligible class members engaging in smuggling contraband is not credible and not supported by the record.7
7Because Defendants did not actually produce sufficient evidence, with respect to either of these incidents, to establish whether or not the searched individuals were eligible class members, we need not consider whether only two documented incidents would be sufficient to justify the policy.

BULL v. CITY AND COUNTY OF SAN FRANCISCO 11485
The incidents cited by the dissent similarly fail to demonstrate even a single occurrence of a strip search uncovering contraband from an eligible class member. Of the twelve incidents cited by the dissent, two did not even involve strip searches,8 and three others involved arrestees who were demonstrably ineligible for class membership because they were arrested on parole violation or drug charges. The documentation for the remaining seven incidents fails to include any information regarding the arrestees’ criminal history or whether the arrestees did anything to create individualized suspicion warranting a strip search.
[6] As the district court concluded, the reports the defendant produced regarding the discovery of contraband during strip searches consistently fail to provide any indication of the charges of the searched individuals or the reason why they were searched. Absent such evidence, it is impossible for us to know whether or not eligible class members are contributing at all—much less in any significant way—to the contraband problem in the San Francisco jails. As such, we cannot conclude that there is any reasonable relationship between the criteria triggering a search (classification for housing) and the interest in conducting the search (eliminating the introduction of contraband).
[7] In sum, controlling precedent holds that blanket strip searches of pre-arraignment detainees regardless of severity of charge and without reasonable suspicion are unconstitutional. The district court properly concluded that the evidence tendered by Defendants was insufficient to distinguish this case from our long line of precedent based on case-specific circumstances.
8In one incident contraband was found in an arrestee’s shoe, in the other contraband was found in the arrestee’s mouth. Neither a search of a shoe nor of the inside of a person’s mouth qualifies as a strip search.

11486

BULL v. CITY AND COUNTY OF SAN FRANCISCO B

We turn next to the question of whether the right violated by Defendants was clearly established at the time of the search. See Saucier, 533 U.S. at 201. “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.” Id. at 202. In other words, the 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).

We have made clear that the responsibility for keeping abreast of constitutional developments in criminal law falls squarely on the shoulders of law enforcement officials. “Given the power of such officials over our liberty, and sometimes even over our lives, this placement of responsibility is entirely proper. Law enforcement officials must be cognizant not only of how far their authority extends, but also of the point at which their authority ends.” Ward, 791 F.2d at 1332.

[8] San Francisco’s challenged strip search policy was in place until January 2004. Well before that time, as we have discussed, it was clearly established in this Circuit that conducting strip searches of pre-arraignment arrestees based solely on the fact that they were assigned for transfer to the general population was unconstitutional. We have consistently required consideration of individual factors, such as arrest charges, criminal history, and suspicious behavior, to justify strip searches of pre-arraignment arrestees. Indeed, in an unbroken line of precedent tracing back to 1984, we have affirmed and reaffirmed the fundamental holding of Giles that a strip search of a pre-arraignment detainee must be supported by reasonable individualized suspicion. It was also abundantly clear after Thompson that placement in the general jail population “by itself cannot justify a strip search.” Thompson, 885 F.2d at 1447.

BULL v. CITY AND COUNTY OF SAN FRANCISCO 11487
[9] Moreover, we have explicitly stated several times that it has been 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 searches of minor offense arrestees to civil liability under 42 U.S.C. § 1983.” 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, the policy by definition also applied to minor offense arrestees, such as those at issue in Ward. San Francisco’s policy required strip searches of all arrestees who were classified for transfer to the general population. Arrestees are “classified” if they cannot post bail. Because some minor offenses do require bail, any minor offense arrestee who was required to post bail but was unable (or unable to post soon enough) would be strip searched under San Francisco’s policy. As Ward points out, we have long since established that strip searches of such individuals, in absence of individualized suspicion, is unconstitutional.9
District courts in this circuit have also consistently recognized that the law in this circuit has clearly established that strip search policies like the one challenged here are unconstitutional.10 See, e.g., Craft v. County of San Bernardino, 468
9Again, in 1993 we reiterated:
At the time Appellants strip searched the Appellees, it was clearly established in this circuit that it is unlawful to strip search an arrestee brought to a jail facility on charges of committing a minor offense, unless the officer directing the search possesses “a reasonable suspicion that the individual arrestee is carrying or concealing contraband.” Reasonable suspicion may be based on “such factors as the nature of the offense, the arrestee’s appearance and conduct, and the prior arrest record.”
Act Up!/Portland v. Bagley, 988 F.2d 868, 871-72 (9th Cir. 1993) (quoting Giles, 746 F.2d at 617) (internal citations and footnote omitted).
10Defendants cite Johannes v. Alameda County Sheriff’s Dept., 2006 WL 2504400, *12 (N.D. Cal. 2006) to argue that the state of the law in

11488 BULL v. CITY AND COUNTY OF SAN FRANCISCO
F.Supp.2d 1172, 1177 (C.D. Cal. 2006) (“At the outset, it is worth noting that the Ninth Circuit has clearly recognized that arrestees’ intermingling with other detained persons can impact upon whether a given strip and/or visual body cavity search is constitutionally permissible, but it cannot, by itself, provide justification for such a search . . .”) (citing Thompson, 885 at 1447); Wong v. Beebe, 2002 WL 31548486, *15 (D. Or. 2002)11 (“[W]ell before [arrestee’s] strip and cavity search, it was clear that blanket strip search policies are unconstitutional if justified by nothing more than an arrest on suspicion of the commission of a felony or a planned confinement in the general jail population.”) (citing Kennedy, 901 F.2d at 713-15; Thompson, 885 F.2d at 144647); Silvia v. Clackamas County, 2001 WL 34039482, *4 (D. Or. 2001) (“Well before [arrestee’s] strip and cavity search, it was clear that blanket strip search policies justified by nothing more than arrest on suspicion of the commission of a felony or a planned confinement in the general jail population are unconstitutional.”) (citing Fuller v. M.G. Jewelry, 950 F.2d 1437, 1445-46 (9th Cir. 1991); Kennedy, 901 F.2d at 713-15; Thompson, 885 F.2d at 1446-47).
Defendants argue that the large amount of documentary evidence they have produced shows that the problem of smuggled contraband is particularly acute in the San Francisco jails and thus distinguishes this case from others. Further, defendants argue that because no other case has
this circuit was not clearly established. However, the district court opinion in Johannes does not suggest that a policy such as San Francisco’s policy might be constitutionally permissible. The Johannes court analyzed a strip search policy as applied to an individual plaintiff and did not express an opinion about the constitutionality of the policy on its face. The court concluded that, among other factors, Johannes’ lengthy criminal history provided a valid basis for a strip search. Here, arrestees with similar criminal histories are not included in the class.
11In determining whether a particular right was clearly established, we may also look to unpublished district court decisions. Sorrels v. McKee, 290 F.3d 965, 971 (9th Cir. 2002).

BULL v. CITY AND COUNTY OF SAN FRANCISCO 11489
confronted such a well-documented problem, even if San Francisco’s policy was unconstitutional, the law was not clearly established. In deciding whether the law was clearly established, “[i]t is not necessary that the alleged acts have been previously held unconstitutional, as long as the unlawfulness [of the defendants’ actions] was apparent in light of preexisting law.” Malik v. Brown, 71 F.3d 724, 727 (9th Cir. 1995). “Closely analogous preexisting case law is not required to show that a right was clearly established.” White v. Lee, 227 F.3d 1214, 1238 (9th Cir. 2000). The specific facts of previous cases need not be materially or fundamentally similar 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. Hope v. Pelzer, 536 U.S. 730, 742 (2002).
[10] We have made it clear that in the Ninth Circuit strip searches of pre-arraignment arrestees are unconstitutional in the absence of reasonable individualized suspicion and that reasonable suspicion requires consideration of factors such as the nature of the offense, the arrestee’s appearance and conduct, and the arrestee’s criminal history. See, e.g., Act Up!, 988 F.2d at 871-72; Edgerly, 495 F.3d at 657. Moreover, we have made it clear that placement in the general jail population “by itself cannot justify a strip search.” Thompson, 885 F.2d at 1447. San Francisco’s policy was to strip search prearraignment arrestees no matter how trivial the offense charged and without reasonable suspicion solely because they were to be classified for housing in the general population. That such a blanket policy is a clear violation of the Constitution is clearly established by our precedent.
[11] The fact that San Francisco had documented a significant problem of contraband smuggling does not muddy the clarity of the law. The evidence Defendants produced to the district court shows only that contraband smuggling was a significant problem in San Francisco jails; it does not demonstrate that persons eligible for inclusion in the class in this

11490 BULL v. CITY AND COUNTY OF SAN FRANCISCO
case contributed significantly, or even at all, to that problem.12 Therefore, San Franciso’s policy, and its justifications for that policy, are not different enough from policies that we have held unconstitutional, to suggest that the rights violated by San Francisco’s policy were not clearly established. For these reasons, Sheriff Hennessey is not entitled to qualified immunity.
III
In conclusion we emphasize that our holding in no way prevents correctional facilities from strip searching inmates under permissible circumstances. Indeed, we do not today even discuss the rights of those who are incarcerated after having been convicted of a criminal offense. This case concerns only pre-trial arrestees. Moreover, strip searches of arrestees on the basis of their arrest for an offense involving drugs, weapons, violence, or a violation of probation or parole; criminal history involving drugs, weapons or violence as specified by the district court; or another factor creating individualized suspicion are not affected by our holding, as these arrestees are excluded from the certified class. However, a policy of strip searching arrestees based solely on their classification for housing in the general population violates the arrestees’ clearly established constitutional rights, and we thus affirm the district court’s denial of qualified immunity.
AFFIRMED.
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.
12See supra Part II.A.

BULL v. CITY AND COUNTY OF SAN FRANCISCO 11491
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 (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. 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. 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. 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 (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:

11492 BULL v. CITY AND COUNTY OF SAN FRANCISCO
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 conducted, [3] the justification for initiating it, and [4] the place in which it is conducted.
Id. at 559 (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. The Court then readily concluded, after “[b]alancing 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.
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 (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.

BULL v. CITY AND COUNTY OF SAN FRANCISCO B

11493

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. 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. 1990), abrogated on other grounds by Hunter v. Bryant, 502 U.S. 224 (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. 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. Instead, we held that a strip search of an arrrestee for a minor offense was not constitutionally reasonable unless jail officials had a specific basis for suspecting that individual of smuggling. Giles, 746 F.2d at 615. Rejecting the district

11494 BULL v. CITY AND COUNTY OF SAN FRANCISCO
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 arrestee 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 misdemeanor 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

BULL v. CITY AND COUNTY OF SAN FRANCISCO 11495
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 (internal quotation marks omitted). Instead of balancing individual privacy concerns against the “significant and legitimate security interests of the institution,” id. at 560, 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 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 Cerrato v. San Francisco Cmty. Coll. Dist., 26 F.3d 968, 972 n.15 (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

11496 BULL v. CITY AND COUNTY OF SAN FRANCISCO
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. Because we have dangerously substituted our judgment for the judgment of jail administrators, a reconsideration of our case law is urgently needed.
TALLMAN, Circuit Judge, dissenting:
Our ship has sailed far from the course charted by the United States Supreme Court in Bell v. Wolfish, 441 U.S. 520 (1979). During the three-year period between April 2000 and December 2003, the San Francisco Sheriff’s Department (“San Francisco”) discovered over 1,000 items of contraband smuggled into its general jail populations.1 In July 2005, an
1The contraband was discovered during searches conducted by San Francisco’s canine unit. Items found included: 662 pills of assorted controlled substances; 106 shanks and weapons; 272 lighters and matches; 13 tattoo needles; 45 finds of rock cocaine (totaling 42.88 grams); 3 finds of cocaine powder (totaling 2.75 grams); 10 finds of methamphetamine (totaling 6.70 grams); 40 finds of marijuana (totaling 71.93 grams); 18 finds of heroin (totaling 6.24 grams and 6.79 milliliters); 24 gallons of “pruno”; 4 hypodermic needles; and 4 ecstasy pills.

BULL v. CITY AND COUNTY OF SAN FRANCISCO 11497
inmate booked and classified at County Jail No. 9 died from a cocaine overdose eleven days after he was transferred to County Jail No. 2 for housing in the general population. The inmate had been charged with felony domestic violence and violating probation, and therefore was subject to a strip search on admission to the booking facility under the Sheriff’s policy. There is no record that drugs were found on this inmate during intake.
As the empirical evidence from jail operations now shows, the underlying rationale for Ninth Circuit decisions in this arena suffers from an inherent defect in basic logic. The assumption is that arrestees booked for only minor or nonviolent offenses who will not be promptly released and must be housed with the general inmate population are unlikely to be carrying concealed contraband or dangerous weapons. Experience teaches otherwise. The County’s2 smuggling problem is not isolated to those inmates booked for crimes involving drugs, weapons, or violence. The record is replete with incidents of jail officials finding contraband during strip searches of individuals arrested for “minor offenses”: public drunkenness, public nuisance, loitering with intent to prostitute, knowingly receiving stolen property, petty theft with a prior offense, etc.3
2I refer to the City and County of San Francisco collectively as “the County.” Arrestees may include those taken into custody by law enforcement agencies including the San Francisco Police Department and the Sheriff’s Department.
3Some of this information was taken from the record filed in a case involving a similar challenge to the same strip search policy, Yourke v. City and County of San Francisco, No. 06-16450. Yourke was dismissed prior to oral argument for lack of jurisdiction. We granted San Francisco’s motion to take judicial notice of portions of the Yourke record on appeal. Accordingly, the record we now consider includes additional Sheriff’s Department documents of smuggling incidents that supplement the Bull record. Together, these records paint a bleak picture of responsible County Jail officials struggling to adhere to ever stricter court decisions while vainly trying to keep everyone safe from harm.

11498 BULL v. CITY AND COUNTY OF SAN FRANCISCO
We have never before been presented with such a compelling record of dangerous smuggling activity. San Francisco has demonstrated beyond cavil that the smuggling of drugs, weapons, and other contraband into the general jail population is a common and pervasive problem that imposes a serious security risk endangering both jail inmates and jail employees. While acknowledging the existence of this evidence, the majority extends Ninth Circuit restrictions and adopts a per se rule requiring reasonable suspicion to strip search a pretrial detainee transferred into the general population for housing who does not otherwise meet the category of arrestees the majority approves for strip-searching. But the newly-minted rule runs contrary to Supreme Court precedent, impedes jail administration, and further endangers the safety of jail inmates and employees. Because I would conclude that San Francisco’s policy of strip searching every arrestee transferred into its general jail population for housing is reasonable under the Fourth Amendment, I would find no constitutional violation from the strip search policy. I would also reverse the district court’s denial of qualified immunity to Sheriff Michael Hennessey. I therefore respectfully dissent.
I
In Bell v. Wolfish, 441 U.S. 520 (1979), the Supreme Court considered the constitutionality of New York’s Metropolitan Correctional Center’s (“MCC”) policy of strip searching inmates following any contact visit with a person from outside the institution. Id. at 523, 528, 558-60. To support the policy, “[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. at 558. During the policy’s “short history” only one body-cavity search resulted in contraband being found. Id.
The Supreme Court nevertheless “[b]alanc[ed] the significant and legitimate security interests of the institution against

BULL v. CITY AND COUNTY OF SAN FRANCISCO 11499
the privacy interests of the inmates” and held that the “visual body-cavity inspections . . . contemplated by the MCC rules can . . . be conducted on less than probable cause.” Id. at 560. Even though the Court could “not underestimate the degree to which these searches may invade the personal privacy of inmates,” it concluded that the institution’s compelling security interests justified the invasion of personal rights that resulted. Id. at 559-60. As the Court explains:
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. And inmate attempts to secrete these items into the facility by concealing them in body cavities are documented in this record, and in other cases. 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.
Id. at 559 (citations omitted).
Subsequent to Bell, we have considered several other strip search policies, yet at no time have we considered a record as fully developed and complete as that provided by San Francisco in support of its policy. 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 held “that arrestees for minor offenses may be subjected to a strip search only if jail officials have a reasonable suspicion.” Id. at 615. The Giles panel purported to follow Bell by claiming to balance “the security needs of [the] local jail facilities against the privacy interests of arrestees charged with minor offenses.” Id. at 617. Unlike Bell, however, Giles concluded that the Idaho county failed to

11500 BULL v. CITY AND COUNTY OF SAN FRANCISCO
demonstrate that its security interests justified the serious invasion of privacy created by its policy. Id. at 617.
The record reveals that the incidence of smuggling activity at the Bonneville County Jail is minimal. Evidence before the trial court indicates that of approximately 3,500 persons searched at the jail in the preceding 18-month period, only eleven persons had concealed anything that warranted a report, including the concealment of cigarettes. [The county] cite[d] as significant only one discovery in the course of 3,500 strip searches: a knife was found cradled in the small of the back of an arrestee. [The county] also cite[d] two instances from other parts of the country (California and Mississippi) in which matches were concealed on the person of detainees.
Id.
Based on the Idaho record, we also concluded that there was no sign “whatsoever that the County’s strip search policy could or did have any deterrent effect.” Id. We noted that “arrest and confinement in the Bonneville County Jail are unplanned events, so the policy could not possibly deter arrestees from carrying contraband.” Id. Based on this record, we rejected the county’s argument that the search was justified by the fact that Giles had been placed in the general jail population. Id. at 618-19 (“[The county’s] heavy reliance on the intermingling of its temporary detainees with the general [jail] population is misplaced . . . because such intermingling is both limited and avoidable.” (internal quotation marks omitted; second alteration in original)).
We reached a similar conclusion in Kennedy v. Los Angeles Police Department, 901 F.2d 702 (9th Cir. 1990), abrogated on other grounds by Hunter v. Bryant, 502 U.S. 224 (1991) (per curiam). There, we found unconstitutional the Los Angeles Police Department’s (“LAPD”) policy subjecting all

BULL v. CITY AND COUNTY OF SAN FRANCISCO 11501
arrestees on suspicion of having committed a felony to a strip search, whether or not they were transferred to the general jail population. Id. at 710, 713-14. We found no justification for treating felony arrestees any differently than misdemeanor arrestees, who were subject to a strip search only upon reasonable suspicion. Id. at 714. There was simply no reasonable relationship between the strip search and the LAPD’s alleged security needs because the LAPD failed to provide “any documentation (or even assertion) that felony arrestees have attempted to smuggle contraband into the jail in greater frequency than misdemeanor arrestees.” Id. at 713.
The majority cites Giles as well as Thompson v. City of Los Angeles, 885 F.2d 1439, 1447 (9th Cir. 1989), for the proposition that contact with the general jail population itself can never justify a strip search. Maj. Op. at 11481-83. However, neither case addressed a record as persuasive as that presented by San Francisco, and both cases based their holdings on separate legal grounds, making their broad pronouncements dicta. As discussed supra, our prior holding in Giles was based primarily on the Bonneville County Jail’s failure to provide evidence to prove it had security concerns that warranted such a severe invasion of privacy. See 746 F.2d at 617. Without a full and complete record, we were in no position to determine as a matter of law that placement in a general jail population could never by itself justify a strip search. “Where it is clear that a statement is made casually and without analysis, where the statement is uttered in passing without due consideration of the alternatives, or where it is merely a prelude to another legal issue that commands the panel’s full attention,” such a statement may be considered dicta. United States v. Johnson, 256 F.3d 895, 915 (9th Cir. 2001) (en banc) (Kozinski, J.); cf. United States v. Ingham, 486 F.3d 1068, 1078 n.8 (9th Cir. 2007) (concluding that the court’s decisions on ex post facto principles was not dicta when the court provided a “careful three-page” analysis). The same holds true for our analysis in Thompson. With absolutely no discussion of the record, we cited Giles and simply stated that “contact with the

11502 BULL v. CITY AND COUNTY OF SAN FRANCISCO
general jail population . . . by itself cannot justify a strip search.” Thompson, 885 F.2d at 1447. However, that statement was not central to our holding, see Sanchez v. Mukasey, 521 F.3d 1106, 1110 (9th Cir. 2008) (discussing what constitutes dictum), as we went on to conclude that the city’s search in Thompson was nevertheless justified by reasonable suspicion. See Thompson, 885 F.2d at 1447.4
Now, with a full and complete record, we are squarely confronted with the question of whether transfer into the general jail population alone can justify a strip search.5 Never has the Supreme Court required reasonable suspicion of weapons or contraband to justify a strip search of pretrial detainees bound
4Contrary to the majority’s statement, I do not contend that the following holding in Giles is dicta: “arrestees for minor offenses may be subjected to a strip search only if jail officials have a reasonable suspicion that the particular arrestee is carrying or concealing contraband or suffering from a communicable disease.” See Maj. Op. 11480-81 n.6. Although I may have decided Giles differently, I nevertheless respect the decision’s precedential value. Unlike the majority, however, I think the panel in Giles unnecessarily went beyond the question presented when it stated that contact with the general jail population alone can never justify a strip search. This was a blanket conclusion without any analysis. Without a full and complete record the court could not give due consideration to the issue. Whether contact with the general jail population alone can ever justify a strip search when the County here has trenchantly documented a pervasive smuggling problem therefore remains an open question.
5I must emphasize that San Francisco’s policy did not require the strip search of every arrestee brought into County Jail No. 9. San Francisco’s policy required only the search of those inmates who were classified for housing and were going to be transferred into the general jail population. Therefore, the other cases relied on by the majority are similarly distinguishable as they do not involve arrestees subsequently transferred to the general population for housing. See Ward v. County of San Diego, 791 F.2d 1329, 1333 (9th Cir. 1985) (finding unconstitutional a blanket strip search policy that allowed officials to search a detainee before a determination was made that she could be released on her own recognizance); Act Up!/Portland v. Bagley, 988 F.2d 868, 871-72 (9th Cir. 1993) (holding that it was clearly established law as of 1989 that “it is unlawful to strip search an arrestee brought to a jail facility on charges of committing a minor offense”).

BULL v. CITY AND COUNTY OF SAN FRANCISCO 11503
for the general prison population.6 See Bell, 441 U.S. at 559-60; see also Evans v. Stephens, 407 F.3d 1272, 1278-79 (11th Cir. 2005) (en banc); id. at 1285-86 (Carnes, J., specially concurring). While other circuits have held that transfer into the general population on a misdemeanor charge without more is insufficient to justify a strip search, see Evans, 407 F.3d at 1285 (Carnes, J., specially concurring) (collecting cases),7 at least one of those circuits has openly questioned its reasoning.
In Evans, the Eleventh Circuit went en banc to address its case law holding that “[a]rrestees who are to be detained in the general jail population can constitutionally be subjected to a strip search only if the search is supported by reasonable suspicion that such a search will reveal weapons or contraband.” Id. at 1278 (internal quotation marks omitted). Because the en banc court decided the case on other grounds, it never reached that question. Id. Nevertheless, it found the need to state: “Most of us are uncertain that jailers are required to have a reasonable suspicion of weapons or contraband before strip searching—for security and safety purposes —arrestees bound for the general jail population.” Id. As discussed in more detail infra, Judge Carnes, joined by Judges Dubina and Hull, elaborated further on this view in a special concurrence.
There is no dispute that in addressing the constitutionality
6Indeed, that was the basis for Justice Powell’s dissent in Bell. See 441 U.S. at 563 (Powell, J. dissenting) (“I join the opinion of the Court except the discussion and holding with respect to body-cavity searches. In view of the serious intrusion on one’s privacy occasioned by such a search, I think 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.”).
7I recognize that Evans cites our decision in Giles as standing for such a proposition. However, as noted above, Giles’s statement regarding the transfer of inmates into the general population is dictum and not binding precedent.

11504 BULL v. CITY AND COUNTY OF SAN FRANCISCO
of this particular policy, we must “balanc[e] . . . the need for the particular search against the invasion of personal rights that the search entails.” Thompson, 885 F.2d at 1445. The prevention of the introduction of weapons or other contraband into jail facilities is an extremely weighty governmental interest. Id. at 1446; see also Bell, 441 U.S. at 547, 559-60 (prevention of smuggling of drugs, weapons, and other contraband is a significant and legitimate prison security interest); Evans, 407 F.3d at 1289 (discussing how smuggling of contraband undermines jail security). In Evans, Judge Carnes discussed at length expert testimony provided in Dodge v. County of Orange, 282 F. Supp. 2d 41 (S.D.N.Y. 2003), remanded on other grounds, 103 Fed. Appx. 688 (2d Cir. 2004), a case addressing the constitutionality of a policy requiring all pretrial detainees to be strip searched upon admission to the county jail.8 In Dodge, both sides’ experts agreed that “ ‘one of the primary objectives of any correctional facility must be to prevent the introduction of “contraband” into a correctional facility due to the dangers that contraband presents in a correctional setting.’ ” Evans, 407 F.3d at 1289 (quoting Dodge, 282 F. Supp. 2d at 46). “ ‘Prison administrators therefore should be accorded wideranging deference 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 1289-90 (quoting Bell, 441 U.S. at 547).
8Bound by Second Circuit precedent, the district court in Dodge ultimately concluded that the strip search policy of the Orange County Correctional Facility in New York was unconstitutional. Nevertheless, the district court felt obliged to record its disagreement with Second Circuit precedent noting that the record in the Dodge case demonstrated that jail administrators “face very real potential security concerns from any new arrival.” 282 F. Supp. 2d at 82. The court went on to state that it was hard for it “to articulate a principled reason why an inmate cannot be strip searched without reasonable suspicion of contraband carriage when he arrives at [the Orange County Correctional Facility] but can lawfully be strip searched after a court date or during a cell shakedown on ‘less than probable cause.’ ” Id. (citing Bell, 441 U.S. at 560).

BULL v. CITY AND COUNTY OF SAN FRANCISCO 11505
San Francisco has sufficiently demonstrated that smuggling of contraband has resulted in a serious risk to inmates and jail employees. The County discovered over 1,000 items of contraband during a three-year period starting in 2000. An inmate died from a drug overdose apparently after he procured the drug inside the jail. To further illustrate the problem, I detail some of the incidents described in the record:
• April 29, 2000: Officials found a white “rock like” object the size of a marble between the buttocks of a man arrested for obstructing a peace officer, driving under the influence, and a parole violation. The inmate grabbed and swallowed the object, requiring a trip to the emergency room.
• August 1, 2001: Officials found a bag filled with an unknown type of white pills in the mouth of a woman arrested for shoplifting and on a warrant for forgery.
• August 10, 2001: Officials found a plastic baggie containing several off-white rocks individually wrapped in plastic in the buttocks area of a man arrested for public drunkenness.
• June 23, 2002: Officials found a plastic bag containing white powder inside the vagina of a women arrested for receiving stolen property.
• January 15, 2003: Officials found a syringe containing 20 cc’s of brown liquid in the anus of a man arrested for a parole violation.
• November 29, 2003: Officials found a syringe in the vagina of a female inmate arrested on an outof-county warrant for drunk driving.

11506 BULL v. CITY AND COUNTY OF SAN FRANCISCO
• December 29, 2003: Officials found a crack pipe and case in the vagina of a woman arrested for traffic violations.9
The majority struggles mightily to discount this record, stating that there is no clear documentation proving a smuggling incident by an arrestee that would qualify as a member of the Plaintiffs’ class. Maj. Op. 11483-85. The question in Bell, however, was not whether the individual security risk of one particular person warranted a search, but whether the security risks of an entire institution justified the jail’s policy. On this record, the majority cannot deny that San Francisco faces an extensive smuggling problem. It nevertheless assumes that San Francisco can remedy the smuggling problem, and overcome the security risks that problem creates, without strip searching any member of Plaintiffs’ class even though each class member is to be commingled with the general jail population. With all due respect to my colleagues, the fallacy of the assumption on which that conclusion is based will endanger the safety of future inmates and jail employees.
As Judge Carnes explains in his special concurrence, and as this record so forcefully demonstrates, the security risk to jail facilities exists whether the inmate was arrested on a misdemeanor or a felony, or whether the inmate has a criminal history or no prior record. Evans, 407 F.3d at 1291 (Carnes, J., specially concurring). “ ‘[O]fficials at a county jail . . . usually know very little about the new inmates they receive or the security risk they present at the time of their arrival.’ ” Id. (second alteration in original) (quoting Dodge, 282 F. Supp. 2d at 38). Moreover, there is no doubt that gang affiliation of
9This list provides but a small sample of the twenty-eight incidents set forth in the combined record of which we have taken judicial notice. See supra n. 3. The location of the contraband items—whether it be in the shoe, mouth, vaginal or anal cavity of the inmate being searched, see maj. op. 11485 & n.8—does not change the fact that San Francisco faces a serious smuggling problem and the problem is not isolated to those offenders arrested for crimes involving drugs, weapons, or violence.

BULL v. CITY AND COUNTY OF SAN FRANCISCO 11507
inmates is a serious security risk. Id. at 1289. Statistics of inmate gang affiliation in San Francisco County Jails are not provided in this record, but as an example, “[a]t the county jail involved in the Dodge case there were at least fifty gang members being held on any given day.” Id. “ ‘Gang members are often more violent, dangerous, and manipulative than other inmates, regardless of the nature of the charges against them. They are also more likely than other inmates to attempt to coerce family members or to coerce, cajole, or intimidate lesser violators into smuggling contraband into the facility.’ ”10 Id. (alteration omitted) (quoting Dodge, 282 F. Supp. 2d at 48).
Inmates returning from a court appearance outside the jail pose the same risk to the general jail population upon return as do new arrestees coming in from the outside. The majority’s failure to recognize the current smuggling problem and acknowledge the lengths that determined criminals will go to smuggle contraband and weapons inside a jail or prison merely highlights why the Supreme Court has continually told us to give special deference to jail house administrators where safety and security concerns are at issue. See, e.g., Bell, 441 U.S. at 562.
We must also consider the far ranging implications of the majority’s rule on county jails located throughout our circuit. San Mateo County Sheriff Don Horsley and the County of San Mateo (“Amici”), defendants in another pending class action lawsuit in the United States District Court, Northern
10This evidence undermines the limited reasoning provided in Giles. See 746 F.2d at 617 (stating that “arrest and confinement in the Bonneville County Jail are unplanned events, so the policy could not possibly deter arrestees from carrying contraband”). We now know that inmates will go to great lengths to get contraband into jail facilities, where the contraband may be worth more than it is on the street. Therefore, a policy that requires jail officials to strip search every transferee into the general jail population will have more of a deterrent affect than the limited search policy our precedent now permits.

11508 BULL v. CITY AND COUNTY OF SAN FRANCISCO
District of California, filed an amicus brief in support of San Francisco. Amici also had a policy of strip searching every arrestee who was going to be housed in San Mateo County’s general jail population.11 For a five-month period in 2004, Amici seized forty-one items of contraband found during strip searches conducted in San Mateo County Jails. Items confiscated as a result of these strip searches included the following: a hypodermic needle secreted in an arrestee’s buttocks; a razor blade found in a woman’s bra; a pocket knife found in a woman’s bra; a small bag containing methamphetamine inside a woman’s bra; suspected heroin secreted between an inmate’s buttocks; and suspected methamphetamine secreted between an inmate’s buttocks.
This evidence proves jail officials need greater flexibility than Ninth Circuit jurisprudence permits to adequately address the security risks they face in safely running county lockups. San Francisco, San Mateo, and other county jails across the country have not exaggerated the need for strip searches. The Supreme Court has told us that an inmate’s constitutional rights must yield to the legitimate penological and safety concerns of the institution which houses commingled pretrial detainees with sentenced prisoners. See Bell, 441 U.S. at 547. By failing to give sufficient weight to the security risk posed by the smuggling of contraband into jail facilities, the majority has neglected to follow the Court’s directive to balance an institution’s security interests against the privacy intrusion that undoubtedly takes place as a result of the intrusive search. See id. at 546-47.
Ninth Circuit jurisprudence has deviated far off the course the Supreme Court has charted. Because San Francisco has demonstrated that it faces a pervasive smuggling problem that can only be mitigated by a policy requiring the search of
11Sometime in 2003, in response to adverse judicial rulings, Amici changed their strip search policy so that only arrestees charged with crimes involving drugs, violence, or weapons are strip searched.

BULL v. CITY AND COUNTY OF SAN FRANCISCO 11509
every arrestee transferred for housing among the County’s general jail population, I would hold that San Francisco’s justified safety interest outweighs the privacy intrusion caused by such a search. It was reasonable under the Fourth Amendment and resulted in no constitutional violation under the first prong of Saucier v. Katz, 533 U.S. 194 (2001).
II
I also disagree with the majority’s conclusion regarding the second prong of the qualified immunity inquiry, whether, in light of clearly established law, a reasonable officer could have known his/her conduct was unlawful. See id. at 201-02. To answer this question we must determine “whether [Sheriff Hennessey] could . . . have reasonably but mistakenly believed that his . . . conduct did not violate a clearly established constitutional right.” Jackson v. City of Bremerton, 268 F.3d 646, 651 (9th Cir. 2001).
“[R]easonableness under the Fourth Amendment is not capable of precise definition or mechanical application.” Bell, 441 U.S. at 559. “We must therefore balance the security needs of local jail facilities against the privacy interests of arrestees charged with minor offenses to determine what objective standard authorizes strip searching of arrestees.” Giles, 746 F.2d at 617; see also Savard v. Rhode Island, 338 F.3d 23, 29 (1st Cir. 2003) (“The constitutional line that separates permissible from impermissible uses of these methods is imprecise and context-specific . . . . [P]lotting that line requires a determination of what is reasonable under a given set of circumstances.”).
Prior to today’s decision, we would balance the security interest of the individual jail facility against the privacy interests of its arrestees. See Kennedy, 901 F.2d at 714 (concluding that the LAPD failed to provide sufficient documentation to justify its policy of strip searching every felony arrestee); Giles, 746 F.2d at 617 (holding the arrestees’ privacy interests

11510 BULL v. CITY AND COUNTY OF SAN FRANCISCO
outweighed Bonneville County Jail’s security interests as the record demonstrated that smuggling activity at that local jail was minimal). Today’s ruling adopts a dangerous per se rule notwithstanding the proven security needs of San Francisco County Jails. When people are dying as a result of our errant jurisprudence, it is time to correct the course of our law.
The contours of an arrestee’s Fourth Amendment right when he or she is transferred into a jail’s general population is debatable among reasonable jurists. Because there was no clearly established law on this issue, and because San Francisco provided a record sufficient to distinguish this case from our prior cases, I would hold that Sheriff Hennessey and his department lacked “fair warning” that San Francisco’s policy violates the Fourth Amendment. We should reverse the district court’s order denying qualified immunity to Sheriff Michael Hennessey.
I respectfully dissent.

 
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IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

MARY BULL, et al., Plaintiffs/Appellees,
vs. CITY AND COUNTY OF SAN FRANCISCO, et al.,
Defendants/Appellants.

9th Circuit Case No. 06-15566
(Consolidated with Docket No. 0517080)
(U.S. District Court No. C 03-1840 CRB N.D. Cal. San Francisco)

DEFENDANTS'/APPELLANTS' PETITION FOR REHEARING AND REHEARING EN BANC (FRAP 35, 40) On Appeal from the United States District Court for the Northern District of California
The Honorable Charles R. Breyer DENNIS J. HERRERA, State Bar #139669 City Attorney JOANNE HOEPER, State Bar #114961 Chief Trial Attorney DANNY CHOU, State Bar #180240 ROBERT A. BONTA, State Bar #202668 Deputy City Attorneys Fox Plaza 1390 Market Street, 7th Floor San Francisco, California 94102-5408 Telephone: (415) 554-4268 Facsimile: (415) 554-3837 Attorneys for Defendants and Appellants CITY AND COUNTY OF SAN FRANCISCO, SAN FRANCISCO SHERIFF’S DEPARTMENT, and SAN FRANCISCO COUNTY SHERIFF MICHAEL HENNESSEY

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TABLE OF CONTENTS
TABLE OF AUTHORITIES .................................................................................... ii INTRODUCTION AND REASONS FOR GRANTING REHEARING OR REHEARING EN BANC ...........................................................................................1 STATEMENT OF FACTS ........................................................................................5 ARGUMENT .............................................................................................................7
I. THE COURT SHOULD GRANT REHEARING OR REHEARING EN BANC BECAUSE THE PANEL'S DECISION CONFLICTS WITH SUPREME COURT AND OTHER CIRCUIT AUTHORITY. .......................................................7 A. The Panel's Holding Contradicts the Supreme Court's Decision In Bell...........................................................................7 B. The Panel's Decision Conflicts With Other Federal Circuit Authority. ......................................................................10
II. THE COURT SHOULD GRANT REHEARING OR REHEARING EN BANC BECAUSE SAN FRANCISCO'S STRIP SEARCH POLICY IS CONSTITUTIONAL UNDER NINTH CIRCUIT PRECEDENTS. ....................................................10
III. THE COURT SHOULD GRANT REHEARING OR REHEARING EN BANC BECAUSE SAN FRANCISCO'S VIOLATION OF THE FOURTH AMENDMENT WAS NOT CLEARLY ESTABLISHED...............................................................13
IV. PERMITTING THE PANEL MAJORITY OPINION TO STAND WILL HAVE SERIOUS NEGATIVE REPERCUSSIONS FOR DETENTION FACILITIES THROUGHOUT THE NINTH CIRCUIT..........................................15
V. CONCLUSION ...................................................................................15 CERTIFICATE OF COMPLIANCE.......................................................................16

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TABLE OF AUTHORITIES
Federal Cases Act Up!/Portland v. Bagley
988 F.2d 868 (9th Cir. 1993) .................................................................................11
Bell v. Wolfish 441 U.S. 520 (1979) ........................................................................ 2, 3, 7, 8, 9, 10
Brosseau v. Haugen 543 U.S. 194 (2004) .............................................................................................14
Bull v. City and County of San Francisco 539 F.3d 1193 (9th Cir. 2008) ........................ 2, 3, 4, 5, 7, 9, 10, 11, 12, 13, 14, 15
Dufrin v. Spreen 712 F.2d 1084 (6th Cir. 1983) .................................................................................8
Giles v. Ackerman 746 F.2d 614 (9th Cir. 1984) ...................................................................... 3, 11, 13
Hudson v. Palmer 468 U.S. 517 (1984) ...............................................................................................5
Johannes v. Alameda County Sheriff's Dep't. 2006 WL 2504400, at *4-6 (N.D. Cal. Aug. 29, 2006)........................................15
Kennedy v. Los Angeles Police Dept. 901 F.2d 702 (9th Cir. 1990) ............................................................................ 3, 11
Powell v. Barrett 2008 WL 4072800 (11th Cir. 2008) ................................................................. 3, 10
Thompson v. City of Los Angeles 885 F.2d 1439 (9th Cir. 1989) .................................................................... 3, 11, 13
Ward v. County of San Diego 791 F.2d 1328 (9th Cir. 1985) ...............................................................................11
Yourke v. City and County of San Francisco USDC Docket No. 06-16450..................................................................................7

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Federal Statutes 42 United States Code
§1983 ......................................................................................................................2

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INTRODUCTION AND REASONS FOR GRANTING REHEARING OR REHEARING EN BANC
Defendants-Appellants ("Defendants") petition for rehearing or rehearing en banc of the divided panel decision of August 22, 2008 affirming the district court's denial of qualified immunity to San Francisco Sheriff Michael Hennessey.
From April 2000 through December 2003, searches of the general jail population in San Francisco's urban jail system uncovered over 1,500 items of contraband. This contraband included shanks (home-made knives), lighters, needles, cocaine, methamphetamines, and heroin. The persons smuggling this contraband were not limited to those arrested on charges involving drugs, weapons, or violence. Instead, many were persons arrested for minor violations, such as shoplifting and traffic violations. These persons often hid the drugs or weapons on their body or inside their bodily orifices in an effort to evade confiscation.
Based on experience, San Francisco jail officials knew that new arrestees were the most likely smugglers of contraband into the general jail population. Those officials also knew that visual strip searches were effective at deterring and reducing contraband smuggling. Thus, San Francisco implemented a visual strip search policy. Under this policy, after determining that an arrestee was ineligible for citation release and after providing a reasonable opportunity to post bail, San Francisco visually strip searched those arrestees who were about to be transferred into the general jail population. As a result of these searches, San Francisco confiscated numerous items of contraband including drugs and weapons that it would not have discovered using other types of searches—such as a pat down search or a search using a metal detector. Indeed, the effectiveness of San Francisco's policy is starkly illustrated by the death of a jail inmate from a drug overdose soon after San Francisco halted its policy in response to the filing of this lawsuit.

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Arrestees who were strip searched by San Francisco before January 2004 filed this class action under 42 U.S.C. § 1983, alleging that San Francisco's visual strip search policy violated the Fourth Amendment. In a divided opinion with a strong dissent, the panel majority held that, under Ninth Circuit precedents, San Francisco's visual strip search policy was unconstitutional under the Fourth Amendment and that the illegality of the policy was clearly established at the time. The panel held that strip searches of pretrial detainees are unconstitutional "in the absence of reasonable individualized suspicion." Bull v. City and County of San Francisco, 539 F.3d 1193, 1196, 1201 (9th Cir. 2008).
Although Judges Thomas and Ikuta affirmed the denial of qualified immunity, Judge Ikuta, compelled by Ninth Circuit precedents, concurred “with reluctance and grave concern.” Id. at 1202. Because the panel's holding and Circuit precedents "contradict[ed]" the United States Supreme Court's decision in Bell v. Wolfish, 441 U.S. 520 (1979), and thereby placed lives at risk, she urged "a reconsideration of our case law." Bull, 539 F.3d at 1205. In dissent, Judge Tallman agreed that the majority's holding conflicted with Bell and placed lives at risk but concluded that San Francisco's policy "was reasonable under the Fourth Amendment and resulted in no constitutional violation." Id. at 1212. Thus, two judges on the panel—a majority—believed that San Francisco's strip search policy was constitutional notwithstanding Ninth Circuit case law.
San Francisco now petitions for rehearing or rehearing en banc. As explained below, this Court should grant this petition because the panel majority's decision contradicts the Supreme Court’s decision in Bell—the seminal case regarding strip searches of pretrial detainees—and the rulings of this and other federal circuits.
First, the panel majority's decision strayed from Bell. In Bell, the Supreme Court held that a policy of strip searching inmates after contact visits without

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individualized, reasonable suspicion was constitutional. After balancing “the need for the particular search against the invasion of personal rights that the search entails,” the court concluded that prison administrators should be accorded "wideranging deference 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." Bell, 441 U.S. at 547. In its earlier precedents, this Court misconstrued Bell's balancing test and failed to accord the required deference to jail administrators when it suggested that arrestees transferred to the general population cannot be strip searched absent an individualized, reasonable suspicion that they have contraband. As Judges Tallman and Ikuta correctly observed: “[o]ur ship has sailed far from the course charted by the United States Supreme Court in Bell.” Bull, 539 F.3d at 1205; see also Id. at 1203 (“Ninth Circuit precedent has wandered far from Bell, as the dissent points out”). Thus, this Court should grant rehearing or rehearing en banc and reconsider Giles v. Ackerman, 746 F.2d 614 (9th Cir. 1984), Thompson v. City of Los Angeles, 885 F.2d 1439 (9th Cir. 1989), and Kennedy v. Los Angeles Police Dept., 901 F.2d 702, 714 (9th Cir. 1990).
Second, the panel majority's decision conflicts with a recent en banc decision from the Eleventh Circuit. In Powell v. Barrett, 2008 WL 4072800 (11th Cir. Sept. 4, 2008), the Eleventh Circuit, in an 11-1 decision, upheld a policy of "strip searching all arrestees" to be transferred into the general jail population "even without a reasonable suspicion to believe that they may be concealing contraband." Thus, the Eleventh Circuit has taken a position contrary to the position that the Ninth Circuit has taken here. And this Court should grant rehearing or rehearing en banc in order to address this intercircuit conflict.
Third, the panel majority should have distinguished Ninth Circuit case law based on the unique record in this case. Although prior Ninth Circuit cases have held that strip searches of individual pretrial detainees violate the Fourth

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Amendment in the absence of individualized, reasonable suspicion, none of those cases had a well-documented record of contraband smuggling as in this case. Moreover, many of those cases involved detainees who were awaiting bail or citation release at the time of the search. Absent evidence of a serious smuggling problem, this Court concluded that the privacy concerns of detainees who would only spend a few hours in jail outweighed the security interests of the facility. The same is not true here. As Judge Tallman aptly observed, "[w]e have never before been presented with such a compelling record of dangerous smuggling activity." Bull, 539 F.3d at 1206. Balancing inmate privacy against the jail's security in light of this record as required by Ninth Circuit precedents compels a different conclusion—that San Francisco's strip search policy is constitutional. Finally, even if the panel majority properly held that San Francisco's policy violated the Fourth Amendment, it erred in holding that the unlawfulness of the policy was clearly established at the time. In light of the serious smuggling problem plaguing San Francisco's jails, a reasonable jail official could believe that it was lawful to strip search arrestees who were unavoidably about to be placed in the general jail population.
The panel majority's decision poses a real danger to detention facilities throughout the Ninth Circuit. Like San Francisco jails, these facilities face a serious contraband smuggling problem that threatens the lives of their inmates and employees. Visual strip searches offer an effective way for these facilities to combat this problem. If allowed to stand, this decision will substitute the Court's judgment for that of experienced jail administrators. And in so doing, the Court will expose jail inmates and employees throughout the Ninth Circuit to injury and, sadly, even death. As Judge Ikuta noted, “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

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at risk.” Bull, 539 F.3d at 1202. Rather than place lives at risk, this Court should grant rehearing or rehearing en banc.
STATEMENT OF FACTS
This is a class action challenging San Francisco's former strip search policy. Until January 2004, San Francisco visually strip searched pretrial detainees who (a) had been given a reasonable opportunity to post bail or cite out (citation and release) before the search, and (b) were about to be transferred to the general jail population.1 San Francisco jail administrators implemented this policy in order to combat contraband smuggling in its urban jails.
The smuggling problem in San Francisco jails is grave. From April 2000 through December 2003, searches of the general jail population uncovered over 1,500 items—including shanks, knives, lighters, rock cocaine, cocaine powder, methamphetamines, hypodermic needles, marijuana, heroin, and ecstasy pills. (E.R. IV: 669).2 When prisoners smuggle drugs and weapons on or inside their bodies, employees, visitors, and inmates are put in danger. Indeed, courts have recognized the inherent danger posed by such smuggling. See, e.g., Hudson v. Palmer, 468 U.S. 517, 526-27 (1984) (taking judicial notice of the “perplexing” problem of contraband flowing into prisons). And the record here shows that nothing less than the lives of inmates and staff are at stake.
All new arrestees in San Francisco are brought to County Jail No. 9, San Francisco’s intake and release facility. At the facility, arrestees are booked and processed, and a determination is made as to whether they will be released or housed in the general jail population. (E.R. IV: 847). Because County Jail No. 9

1 Because of this class action, the Sheriff instituted new search policies in

Januar2y“2E0.0R4.”thraetfearrsetsotiAllpipneelflafenctst.’

These new Excerpts of

policies Record

are not filed in

at issue here. the consolidated

companion appeal, Docket No. 05-17080.

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is a temporary detention facility and does not contain beds for extended stays, all arrestees who are classified for housing are transferred to another San Francisco jail within 24 hours. (E.R. IV: 857). County Jail No. 9 is thus the gateway into the San Francisco jail system for both people and contraband.
From their experience, San Francisco jail administrators knew that arrestees received for booking and transferred into the general jail population were the most likely smugglers of drugs and weapons into San Francisco jails. (E.R. IV: 644, 646). Thus, after giving arrestees a reasonable opportunity to post bail, persons who were not eligible for citation release and did not post bail were visually strip searched before entering the general jail population. (E.R. IV: 653, 849). These searches were visual only; they involved no touching, occurred in private, and were conducted by a deputy of the same gender as the arrestee. (E.R. IV: 653-55.) Arrestees were given as long as possible to post bail or cite out before being strip searched. (E.R. IV: 861, 863, 868). The purpose of these searches was to prevent contraband smuggling, for the safety of inmates and staff. (E.R. IV: 644, 852).
And these visual strip searches prevented a huge amount of contraband from entering the jails. The evidentiary record reveals that the strip searches uncovered numerous knives, scissors, syringes, cocaine, heroin, and other illegal drugs hidden in the rectums, vaginas, mouths, or ears of new arrestees.3 Arrestees who attempted to smuggle drugs and weapons into San Francisco jails were not limited to persons arrested on charges involving drugs, weapons or violence. Indeed, the record reveals that persons who were not arrested for crimes
3 E.R. IV: 646, 667; E.R. III: 463, 464, 471-74, 476, 478, 480-81, 483-84, 486-87, 497-99, 502, 506, 517, 521-22, 525-26, 532, 534-35, 54-45, 547-48, 551, 553, 558, 560, 563, 565, 567, 571, 576-77, 579, 582-84, 586, 591, 595, 604, 607, 609, 611-14, 617, 621, 623, 627-30, 632-34, 636-37.

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involving drugs, weapons, or violence secreted drugs and other dangerous contraband in their bodily orifices.4

Based on the experience of jail administrators, visual strip searches of new

arrestees reduced the flow of contraband into the jails and decreased the risk of

injury to inmates, staff, and visitors. (E.R. IV: 645-46). This too is borne out by

the record. After San Francisco ended its strip search policy, an inmate died from

an overdose of cocaine that was smuggled into the general jail population at the

County Jail. (E.R. V: 1058-60).

ARGUMENT

I. THE COURT SHOULD GRANT REHEARING OR REHEARING EN BANC BECAUSE THE PANEL'S DECISION CONFLICTS WITH SUPREME COURT AND OTHER CIRCUIT AUTHORITY.

A.

The Panel's Holding Contradicts the Supreme Court's Decision In

Bell.

Although the panel affirmed the district court's order holding that San Francisco's strip search policy violated the Fourth Amendment, a majority—Judges Ikuta and Tallman—agreed that the panel's holding contradicted Bell. Indeed, Judge Ikuta, who reluctantly concurred, stated that "a reconsideration of our case law is urgently needed." Bull, 539 F.3d at 1205. This Court should heed Judges Ikuta and Tallman and grant rehearing or rehearing en banc.
In Bell, the Supreme Court held that a detention facility may limit a pretrial detainee's constitutional rights in order to maintain "institutional security" and preserve "internal order and discipline.” 441 U.S. at 546.5 In determining whether a facility's measures are constitutional, courts apply a fact-intensive balancing test:

4 E.R. III: 474, 478, 527, 532, 534, 577, 595, 601, 603, 609, 612-14; Y.E.R. III: 414-15, 416-19, 427-28, 435-38, 439-42, 443-47, 448-49, 450-53, 454-57, 46468, 488-89, 490-91. “Y.E.R.” refers to Appellants’ Excerpts of Record in Yourke v. City and County of San Francisco, Docket No. 06-16450, which were judicially noticed5.Federal case law makes it clear that there should be no distinction between pretrial detainees and convicted inmates. As the Supreme Court explained in Bell, (continued on next page)

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The test of reasonableness under the Fourth Amendment ... 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. Under this test, “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 54647. Courts must accord “wide-ranging deference” to prison officials “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. 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 (internal quotations omitted). Applying these principles, the Supreme Court in Bell 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. It did so even though only one search conducted by the facility had resulted in the discovery of contraband. Id. at 558. "Balancing the significant and legitimate security interests of the institution against the privacy interest of the inmates," the Court concluded that the strip search policy was reasonable under the Fourth Amendment. Id. at 560.

(footnote continued from previous page) 441 U.S. at 546 n.28, "there 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." Id. See also Dufrin v. Spreen, 712 F.2d 1084, 1087-88 (6th Cir. 1983) ("It is clear that prison officials need not distinguish between convicted inmates and pretrial detainees in reviewing their security practices").

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Under Bell, San Francisco's strip search policy is constitutional. The smuggling of drugs and weapons into San Francisco jails is pervasive and poses a serious danger to jail inmates and employees. Based on their experience, jail administrators concluded that visual strip searches were effective in combating this smuggling problem and protecting inmates and staff. The subsequent death of an inmate due to a drug overdose after San Francisco halted its policy supports this conclusion. Balancing the "significant and legitimate security interests" of San Francisco jails against privacy concerns as required by Bell, this Court should have upheld the constitutionality of San Francisco's strip search policy. Bell, 441 U.S. at 560.
Both Judges Tallman and Ikuta agreed. As Judge Tallman explained: San Francisco has demonstrated beyond cavil that the smuggling of drugs, weapons, and other contraband into the general jail population is a common and pervasive problem that imposes a security risk endangering both jail inmates and jail employees. While acknowledging the existence of this evidence, the majority extends Ninth Circuit restrictions and adopts a per se rule requiring reasonable suspicion to strip search a pretrial detainee transferred into the general population for housing who does not otherwise meet the category of arrestees the majority approves for strip-searching. But the newly-minted rule runs contrary to Supreme Court precedent, impedes jail administration, and further endangers the safety of jail inmates and employees. Bull, 539 F.3d at 1206.
Similarly, Judge Ikuta stated: In considering whether the policy was reasonable, we must defer to the judgment of jail administrators. 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. Id. at 1203.
Only prior Ninth Circuit precedents—whose "balancing test bears little relation to Bell's"—compelled Judge Ikuta to "reluctantly concur in the majority's determination that the strip search policy was unconstitutional." Bull, 539 F.3d at

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1204-1205. Those precedents should be reconsidered not only because of Bell but

to ensure the safety of jail inmates and employees.

B.

The Panel's Decision Conflicts With Other Federal Circuit

Authority.

Just weeks after the panel concluded that San Francisco's strip search policy violated the Fourth Amendment, the Eleventh Circuit reached the opposite conclusion. In an 11-1 en banc decision, the Eleventh Circuit upheld a policy of "strip searching all arrestees as part of the process of booking them into the general population of a detention facility, even without a reasonable suspicion to believe that they may be concealing contraband." Powell, 2008 WL 4072800, at *1. Relying on Bell, it reversed prior Eleventh Circuit precedents that had held—like the Ninth Circuit—that individualized reasonable suspicion was necessary. As the court explained, "[e]mployees, visitors, and (not least of all) the detained inmates themselves face a real threat of violence, and administrators must be concerned on a daily basis with the smuggling of contraband by inmates accused of misdemeanors as well as those accused of felonies." Id. at *13. "These reasons support the expert opinion of jail administrators that all of those who are to be detained in the general population of a detention facility should be strip searched when they enter or re-enter it." Id. Because the panel's decision conflicts with Powell, the Court should grant rehearing or rehearing en banc. II. THE COURT SHOULD GRANT REHEARING OR REHEARING EN
BANC BECAUSE SAN FRANCISCO'S STRIP SEARCH POLICY IS CONSTITUTIONAL UNDER NINTH CIRCUIT PRECEDENTS.

The record of drug and weapons smuggling in this case is unprecedented. As Judge Tallman aptly noted, this Court has "never before been presented with such a compelling record of dangerous smuggling activity." Bull, 539 F.3d at 1206. Even under Ninth Circuit precedents, this record constitutionally justifies San Francisco’s strip search policy.

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Under prior Ninth Circuit cases, a strip search policy must be reasonably related to the penal institution's interest in maintaining security—which must be sufficiently documented. See Kennedy, 901 F.2d at 713 (“the enacted policy, if it is to be constitutional, must be ‘reasonably related’ to the penal institution’s interest in maintaining security"); Giles, 746 F.2d at 618 (holding that strip search must bear some “discernible relationship to security needs”)(citations and quotations omitted). And in those prior cases, this Court invalidated various strip search policies because they were not reasonably related to the institution's security interest.
But this Court has never considered "a record as fully developed and complete as that provided by San Francisco in support of its policy." Bull, 539 F.3d at 1207. In Giles, 746 F.2d at 617, "the incidence of smuggling activity at the" jail was "minimal." Similarly, in Kennedy, 901 F.2d at 713, jail officials provided no "documentation (or even assertion) that felony arrestees have attempted to smuggle contraband into the jail in greater frequency than misdemeanor arrestees."6 Finally, the Court in Thompson, 885 F.2d 1438 makes no mention of any contraband smuggling in the record.7
By contrast, San Francisco has documented the serious smuggling problem in its jails and has demonstrated that a substantial risk of smuggling exists regardless of whether the detainee is arrested for crimes involving drugs, weapons,

6 The strip search in Kennedy was far more intrusive than the strip searches

at issue here. In Kennedy, the detainee was “required to insert her fingers into her

vagina and anus"—and a policewoman touched her—in order to "check whether

she had concealed any drugs or contraband in these body cavities.” 901 F.2d at

711. San Francisco’s strip searches involve no physical penetration and no

touchin7 gB.ecause San Francisco only searched arrestees who were going to be

transferred into the general jail population, other Ninth Circuit decisions – which

do not involve arrestees transferred to the general See Ward v. County of San Diego, 791 F.2d 1328,

j1a3il3p3o(p9uthlaCtiior.n1–98ar5e);inAacptposite.

Up!/Portland v. Bagley, 988 F.2d 868, 871-872 (9th Cir. 1993).

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or violence. Thus, San Francisco has established that its strip search policy is "reasonably related" to its interest in maintaining jail security.
According to the panel majority, San Francisco's failure to clearly document any smuggling by an arrestee who would qualify as a member of the class – i.e., a person who was not arrested on a charge involving drugs, weapons, or violence, who did not have a criminal history involving drugs, weapons, or violence, and whose behavior did not create an individualized suspicion warranting a search – establishes that its strip search policy was not reasonably related to security interests. But the panel majority ignores the practical realities of the smuggling problem. As Judge Tallman explained, "[i]nmates returning from a court appearance outside jail pose the same risk to the general jail population upon return as do new arrestees coming in from the outside." Bull, 539 F.3d at 1211. Moreover, as evidenced by the record, arrestees who were not arrested on charges involving drugs, weapons, or violence regularly attempted to smuggle drugs and weapons into San Francisco jails. Finally, "officials at a county jail . . . usually know very little about the new inmates they receive or the security risk they present at the time of their arrival." Id. at 1211 (internal quotations omitted). In light of these practical realities, the panel majority's parsing of the record is fallacious. By restricting San Francisco's options for dealing with its serious smuggling problem based on the vagaries of the class definitions used by plaintiffs, the majority not only jeopardizes jail security, but also the lives of jail inmates and employees.
Because he gave insufficient weight to the security risks, Judge Thomas quite amazingly, stated that “we cannot conclude that there is any reasonable relationship between the criteria triggering a search (classification for housing) and the interest in conducting the search (eliminating the introduction of contraband).” Bull, 539 F.3d at 1199. If the panel majority had conducted the "reasonable

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relationship" inquiry that Ninth Circuit precedents require, it would have found San Francisco’s strip search policy constitutional.
Finally, contrary to the panel majority's assertion, Id. at 1197, 1199, neither Giles nor Thompson adopted a per se rule requiring individualized reasonable suspicion for a strip search of a pretrial detainee transferred into the general jail population.8 Giles, 746 F.2d at 618-9, held that placement in the general jail population was not enough to validate a strip search because “intermingling [was] both limited and avoidable.” Thompson, 885 F.2d at 1447, held that the placement of an arrestee “into contact with the general jail population” "by itself cannot justify a strip search.” By contrast, San Francisco did not strip search a pretrial detainee until intermingling with the general jail population was unavoidable. And San Francisco did not implement its strip search policy solely because detainees would be placed into contact with the general jail population. It implemented the policy also based on (1) the grave, well-documented smuggling problem (not present in Giles or Thompson) in San Francisco jails, which has caused injuries and death, and (2) the judgment of experienced jail administrators that arrestees transferred into the general jail population pose the greatest risk of smuggling contraband. These additional factors render San Francisco's policy constitutional under Ninth Circuit precedents. III. THE COURT SHOULD GRANT REHEARING OR REHEARING EN
BANC BECAUSE SAN FRANCISCO'S VIOLATION OF THE FOURTH AMENDMENT WAS NOT CLEARLY ESTABLISHED.
According to the panel majority, "it was clearly established in this Circuit that conducting strip searches of pre-arraignment arrestees based solely on the fact
8 To the extent Giles and Thompson appear to hold otherwise, these pronouncements are dicta, as Judge Tallman rightfully observed. Bull, 539 F.3d at 1208 ("[N]either case [Giles or Thompson] addressed a record as persuasive as that presented by San Francisco, and both cases based their holdings on separate legal grounds, making their broad pronouncements dicta.")

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that they were assigned for transfer to the general population was unconstitutional." Bull, 539 F.3d at 1199. It therefore concluded that no reasonable person could have believed that San Francisco's strip search policy was lawful at the time of its implementation. But the evidentiary record in this case distinguishes this case from every other case. Because the majority erred in denying qualified immunity, this Court should grant rehearing or rehearing en banc.
Qualified immunity ensures that officers, before they are held liable for constitutional violations, have "fair notice that [their] conduct was unlawful." See Brosseau v. Haugen, 543 U.S. 194, 198 (2004). The inquiry into whether conduct violates clearly established law "must be undertaken in light of the specific context of the case, not as a broad general proposition." Id. at 198 (citation and quotations omitted).
As explained above, prior Ninth Circuit cases did not involve a welldocumented record of contraband smuggling or inmates being searched only after failing to post bail or failing to be cited and released. Unlike the defendants in those cases, San Francisco did not search detainees awaiting bail or citation release and whose transfer to the general jail population was avoidable. And unlike those defendants, San Francisco has demonstrated a serious smuggling problem in its jails—involving all arrestees, and not just persons arrested for offenses involving drugs, violence, or weapons. This smuggling problem jeopardizes the lives of its jail inmates and employees. Balancing privacy concerns against the security interests in light of the unique record in this case, a reasonable jail official could believe that San Francisco's strip search policy was constitutional. Accordingly, this Court should grant rehearing or rehearing en banc.

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IV. PERMITTING THE PANEL MAJORITY OPINION TO STAND WILL HAVE SERIOUS NEGATIVE REPERCUSSIONS FOR DETENTION FACILITIES THROUGHOUT THE NINTH CIRCUIT.

The San Francisco jails are not the only ones facing the troubling problem of contraband smuggling. For example, the County of San Mateo submitted an amicus brief explaining that San Mateo jails face a similar scourge. And there can be little doubt that this issue affects county jails and federal prisons throughout the Ninth Circuit. See, e.g., Johannes v. Alameda County Sheriff's Dep't., 2006 WL 2504400, at *4-6 (N.D. Cal. Aug. 29, 2006) (discussing the contraband problem in a large county jail and the usefulness of strip searches in combating the problem). Like San Francisco, the administrators of these jails and prisons believe that a visual strip search policy is the only way to effectively combat the problem. Preventing these administrators from implementing such a policy jeopardizes the safety of inmates and employees. As the dissent succinctly and powerfully stated, “When people are dying as a result of our errant jurisprudence, it is time to correct the course of our law.” Bull, 539 F.3d at 1213. V. CONCLUSION

Based on the foregoing, the Court grant rehearing or rehearing en banc.

DATED: October 3, 2008

Respectfully submitted,

DENNIS J. HERRERA City Attorney

By: _/s/ Robert A. Bonta____ ROBERT A. BONTA
Attorneys for Defendants/Appellants CITY AND COUNTY OF SAN FRANCISCO, SAN FRANCISCO SHERIFF’S DEPARTMENT, and SAN FRANCISCO COUNTY SHERIFF MICHAEL HENNESSEY

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CERTIFICATE OF COMPLIANCE
I hereby certify that this brief has been prepared using proportionately double-spaced 14 point Times New Roman typeface. Pursuant to Federal Rule of Appellate Procedure 35(b)(2), this Petition For Rehearing and Rehearing En Banc does not exceed 15 pages, excluding material not counted under Rule 32.
I declare under penalty of perjury that this Certificate of Compliance is true and correct and that this declaration was executed on October 3, 2008.
DENNIS J. HERRERA City Attorney ROBERT A. BONTA Deputy City Attorney
By: /s/ Robert A. Bonta_____ ROBERT A. BONTA Deputy City Attorney
Attorneys for Defendants/Appellants CITY AND COUNTY OF SAN FRANCISCO, SAN FRANCISCO SHERIFF’S DEPARTMENT, and SAN FRANCISCO COUNTY SHERIFF MICHAEL HENNESSEY

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APPELLATE CM/ECF SYSTEM CERTIFICATE OF SERVICE I hereby certify that on October 3, 2008 I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system. I certify that the following party in this case is a registered CM/ECF user and that service will be accomplished by the appellate CM/ECF system. Mark E. Merin, Esq. Jeffrey I. Schwarzschild, Esq. Law Offices of Mark E. Merin 2001 P Street, Suite 100 Sacramento, CA 95814 (Courtesy Copy sent Via US Mail on October 3, 2008)
/s/ Folashade Adesanwo FOLASHADE ADESANWO

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APPELLATE CM/ECF SYSTEM CERTIFICATE OF SERVICE
I hereby certify that on October 3, 2008 I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system.
Participants in the case who are registered CM/ECF users will be served by the appellate CM/ECF system.
I further certify that some of the participants in the case are not registered CM/ECF users.
I have mailed the foregoing document by First-Class Mail, postage prepaid, or have dispatched it to a third party commercial carrier for delivery within 3 calendar days to the following non-CM/ECF participants: Andrew Charles Schwartz, Esq. Casper, Meadows & Schwartz 2121 N. California Blvd., Suite 1020 Walnut Creek, CA 94596 (Via US Mail on October 3, 2008) The Honorable Charles R. Breyer United States District Court Northern District of California 450 Golden Gate Ave. San Francisco, CA 94102 (Via Messenger on October 3, 2008)
/s/ Folashade Adesanwo FOLASHADE ADESANWO

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 06-15566 (Consolidated with 05-17080)
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARY BULL, et aI.,
Plaintiffs-Appellees,
v.
CITY AND COUNTY OF SAN FRANCISCO, et aI.,
Defendants-Appellants.
On Appeal from the United States District Court For the Northern District of California No. C 03-1840 The Honorable Charles R. Breyer, Judge
APPLICATION FOR LEAVE TO FILE AMICUS CURIAE BRIEF AND AMICUS CURIAE BRIEF IN SUPPORT OF APPELLANT'S PETITION
FOR REHEARING AND REHEARING EN BANC
JONES & MAYER Martin J. Mayer Krista MacNevin Jee 3777 North Harbor Boulevard Fullerton, CA 92835 Telephone: (714) 446-1400 Facsimile: (714) 446-1448 Attorneys for Amicus Curiae, California State Sheriffs' Association

APPLICATION FOR LEAVE TO FILE AMICUS CURIAE BRIEF The California State Sheriff's Association ("CSSA") requests leave to file the attached Amicus Curiae Brief in support of Appellants' Petition for Rehearing and Rehearing En Banc ("Petition" or "Pet."), to assist this Court in resolving the important issues of law presented in this matter. CSSA represents each of the 58 Sheriffs in California. This Association is interested in this case because the issues presented have profound impact on the members of this Association as well as every jail employee and inmate under the command of the state's sheriffs. The Applicant endeavors to provide this Court with a broad law enforcement perspective as to the issues in this matter, specifically the constitutionality of strip searching all inmates prior to their introduction into the general jail population and whether the Sheriff is entitled to qualified immunity with respect to a strip search policy.

Therefore, Applicant respectfully requests leave to file the attached Amicus Curiae brief addressing the above issues. Dated: October 10, 2008
Respectfully submitted, JONES & MAYER
~~~au Martin J. Mayer an Krista MacNevin Jee, Attorneys for Amicus Cmiae, California State Sheriffs' Association
2

TABLE OF CONTENTS APPLICATION FOR LEAVE TO FILE AMICUS CURIAE BRIEF .......... 1 PROPOSED BRIEF OF AMICUS CURIAE ............................. 1
I. AUTHORITY TO FILE AND INTERESTS OF AMICUS ........... 1 II. STATEMENT OF FACTS ................................... 1 III. REHEARING EN BANC IS NECESSARY FOR UNIFORMITY OF
DECISION AND TO SETTLE CRITICAL ISSUES OF LAW..... 1 A. Appellants' Strip Search Policy is Necessary, Justified and
Constl.tutl.Ona1. ....................................._? B. The SheriffIs Entitled to Qualified Immunity. . . . . . . . . . . . . . . 10 IV. CONCLUSION........................................... 14
i

TABLE OF AUTHORITIES FEDERAL CASES
Auriemma v. Rice, 910 F.2d 1449 ................................................................................... 14 Bell v. Wolfish, 441 U.S. 520 ............................................................................ 2,4,5,6,7 Brewster v. Board ofEducation, 149 F.3d 971 ............................................................... 13
Bull v. City and Counly ofSan Francisco, 539 F.3d 1193, 2008 u.s. App.
LEXIS 18026 .............................................................................................................. 5,10 Dodge v. County ofOrange, 282 F.Supp.2d 41 ................................................................ 9 Giles v. Ackerman, 746 F.2d 614 ................................................................................ 5,10 Johannes v. Alameda County Sheriffs' Department, 2006 U.S.Dist. LEXIS
63378,2006 WL 2504400 .......................................................................................... 9 Kelley v. Borg, 60 F.3d 664 ....................................................................................... 13-14 Kenlucky v. Graham, 473 U.S. 159 ................................................................................ 14 Knox v. Southwest Airlines, 124 F.3d 1103 .................................................................... 13 Malley v. Briggs, 475 U.S. 335 ....................................................................................... 13 Monell v. Department ofSocial Services ofNew York, 436 U.S. 658 ............................ 14 Powell v. Barrett, 2008 U.S.App. LEXIS 18907 .............................................. 2,6,7,8,9 Thompson v. City ofLos Angeles, 885 F.2d 1439 ............................................. 2,3, 11, 12 Todd v. United States, 849 F.2d 365 ............................................................................... 13 United States ex rei. Wolfish v. Levi, 439 F.Supp. 114 ..................................................... 7 Ward v. County ofSan Diego, 791 F.2d 1329 ................................................................ 12 Wright v. Rushen, 642 F.2d 1129 ................................................................................ 2,11
FEDERAL RULES Federal Rules App. Proced., Rule 35 ............................................................................. 2-3
ii

PROPOSED BRIEF OF AMICUS CURIAE I. AUTHORITY TO FILE AND INTERESTS OF AMICUS CSSA represents each of the 58 California Sheriffs. This Association is interested in this case because the issues presented have profound impact on the members of this Association as well as every jail employee and inmate under the command of the state's sheriffs. The decision of this Court in this matter will profoundly affect not only Appellants, but also the 57 other Sheriffs' Departments tlu'oughout the State of California, which also face varying degrees of drugs or weapons smuggling within their jail facilities. In fact, this Court's decision even impacts other jail facilities not represented by CSSA, such as the multiple municipal jails that house inmates on an on-going basis. The undersigned serves as legal counsel to CSSA and has been given specific autllOrity to make tlus Application.
n. STATEMENT OF FACTS
Amicus accepts the facts as set forth in the Petition, without restatement. III. REHEARING EN BANC IS NECESSARY FOR UNIFORMITY OF
DECISION AND TO SETTLE CRITICAL ISSUES OF LAW. A rehearing en banc is appropriate when "(1) en banc consideration is necessary to secure or maintain unifonnity of the court's decisions; or (2) the proceeding involves a question of exceptional importance." Fed. Rules App.
1

Proced., Rule 35 (a). In particular, "a proceeding presents a question of exceptional importance if it involves an issue on which the panel decision conflicts with the authoritative decisions of other United States Courts of Appeals that have addressed the issue." Fed. Rules App. Proced., Rule 35 (b)(1)(B).
As stated in the Petition, there are sufficient and appropriate grounds for this Court to grant rehearing or rehearing en bane. Appellants have specifically noted that this Court's decision conflicts with United States Supreme Court precedent, Bell v. Wolfish, 441 U.S. 520 (1979), as well as the recent decision of another Comt of Appeal, Powell v. Barrett, 2008 U.S. App. LEXIS 18907 (11th Cir. 2008), and it involves critical issues of statewide importance to all Sheriffs.
A. Appellants' Strip Search Policy is Necessary, Justified and Constitutional. The Court's opinion in this matter omits consideration of a very impOltant
aspect ofthe Sheriffs constitutional obligations. As the Court in Thompson v. City of Los Angeles, 885 F.2d 1439 (9th Cir. 1989), noted, "jail officials have a constitutional obligation to provide inmates with adequate medical care and personal safety." Id. at 1447 (citing Wright v. Rushen, 642 F .2d 1129, 1132-33 (9th Cir. 1981 )). The constitutional obligations of Sheriffs are not limited to the Fourth Amendment constitutional rights of an individual inmate with respect to
2

strip searches, or even the lesser administrative interests of penological efficiency and safety in running ajail facility, as to both inmates, employees and administration generally. An additional constitutional legal obligation exists as to a Sheriffs having to provide for the health and safety of his or her inmates. As the Thompson Cowi found, this obligation is of such paramount importance that "the County's interest of diagnosing severe medical problems to prevent transmission of serious disease among the general jail population is sufficiently compelling to preclude a finding that such searches [in the fmID of blood samples and x-rays] are unreasonable within the meaning of the Fourth Amendment." Id. It is hard to imagine that the forced "extraction of blood" or "forced submission to radioactive rays," which the Thompson Court found to be more intrusive than strip searches in celiain respects, is constitutional in order to maintain the health and safety of inmates, but strip searches are not.
This conclusion is particularly troublesome when tlle specific strip search policy of Appellants and Appellants' specific justification for such policy are considered. As noted by Appellants, the strip searches at issue in this matter are "visual only; they involved no touching, occlIn"ed in private, and were conducted by a deputy ofthe same gender as the arrestee." (Pet., at p. 6). In addition, unlike other cases decided previously by this Court on the issue of strip searches, there is
3

a significant problem with contraband, including dangerous weapons, being smuggled into San Francisco County jails; jail administrators have specifically determined in their discretion that visual strip searches are an effective tool for combating such smuggling, even among those who were not an·ested in connection with drugs, weapons or violence; and such searches have actually resulted in the confiscation of a significant number of contraband items. (Pet., at pp. 6-7). As Appellants aptly point out, the Supreme Court has held that "'in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations [prison administration and safeguarding institutional security], cOUlis should ordinarily defer to their expert judgment in such matters.'" (Pet., at 8 (citing Bell, at 548) (emphasis added)).
The constitutional rights of an individual imnate caml0t trump ilie constitutional rights of all imnates to safety and security in the jail setting, when they are put into the general jail population by the govermnent. If this Court requires all Sheriffs to forego one ofthe only and best tools to discover dangerous contraband being smuggled into the general jail population, the Court is also requiring Sheriffs throughout the State to relinquish ilieir duty to adequately and fully satisfy the constitutional obligation to insure the safety of all imnates. The practical reality ofthe Court's decision in this regard is all Sheriffs' Depmiments
4

will be subject to liability for the injury to or death of inmates that will result from the failure to find and deter contraband smuggled into the general jail populations, particularly since such efforts could have been easily thwarted by a reasonable visual strip search policy such as Appellants.
This Court must realize that the facts in Giles v. Ackerman, 746 F.2d 614 (9th Cir. 1984), are distinguishable from the set of circumstances faced by Appellants. As the dissent stated, in the opinion in the present matter and in construing Giles, "the Idaho county failed to demonstrate that its security interests justified the serious invasion of privacy created by its policy." Bull v. City and
County of San Francisco, 539 F.3d 1193,2008 U.S. App. LEXIS 18026, * 41 (9th
Cir. 2008) (emphasis added) (citing Bell, at 617). The dissent further noted that '''[t]he record [in Giles] reveals that the incidence of smuggling activity at the Bonneville County Jail is minimal.'" Id. (emphasis added) (quoting Bell, at 617). This is in direct contrast to the detailed and specific evidence submitted by Appellants that smuggling of contraband into the jail system in the County of San Francisco is a "pervasive" problem. (Pet., at 9).
The Supreme Court's standard of deference set out in Bell, is not a call for this Court to require that jail administrators such as Appellants utilize the least restrictive method of combating the serious health and safety issues facing its
5

imnates and guards. This Court's opinion in this matter essentially analyzes Appellants' strip search policy under this type of rubric. Rather than truly deferring to Appellants' determination of how to address a demonstratably grave epidemic, this COUli has required that Appellants show that their policy is in response to a particular problem associated with the particular class in this matter. However, the Supreme Court in Bell did not require this and the Eleventh Circuit in Powell specifically noted the absence of such a requirement. Powell v. Barrett, 2008 U.S. App. LEXIS 18907, *20-21 (llth Cir. 2008) ("[T]he Supreme Court was not ready to concede that lesser alternative analysis has any place in the Fourth Amendment area.") (quoting Bell, at 559 n.40 ("[T]he logic of such elaborate less-restrictive-alternative arguments could raise insuperable barriers to the exercise of virtually all search-and-seizure powers.") (internal quotations and citations omitted) (alteration in original)).
As the Powell Court recognized, "[t]he policy the COUli upheld [in Bell] required that searches be conducted on every imnate after each contact visit, even without the slightest cause to suspect that the inmate was concealing contraband." Powell v. Barrett, 2008 U.S. App. LEXIS 18907, *20 (llth Cir. 2008) (emphasis added). This holding permits jail administrators to do what is necessary to satisfy their constitutional obligation to protect health and safety of all prisoners, as well
6

as protecting to rights of inmates to be subject only to reasonable strip searches, i.e. those searches that are conducted in a reasonable manner given the particular demonstrated need of the jail facility.
Even the District Court in Bell had found certain strip searches valid without any finding of cause to search a particular individual. The District Court found unconstitutional only those searches of genital and anal areas; "full body visual strip searches, which did not require the imnates to take any action to more fully expose their anal or genital areas to inspection, [were permitted] to continue without any showing of cause." Id. (citing United States ex rei. Wolfish v. Levi, 439 F. Supp. 114,48 (S.D.N.Y. 1977); Bell at 558). And the Second Circuit's affinnation of the District Court's decision prohibited, without probable cause, only "forcing inmates to assume postures or take other actions that would more fully expose their anal and genital areas to visual inspection"; it did not prohibit strip searches entirely, or require reasonable suspicion as to particular individuals.
In addition, the justification for the strip searches was but one factor that the Supreme Court indicated should be evaluated in detennining the reasonableness of a policy. Bell at 559. The other factors referenced in Bell related to the manner in which the search was conducted. All of these factors here weigh in favor of this Comt finding the strip search policy of Appellants to be reasonable and
7

constitutional under the circumstances. As noted above, the justification for
Appellants' policy is based on specific evidence of pervasive smuggling problems.
Moreover, Bell did not require that the justification be specifically tailored to any
specific class of persons or propensity to smuggle contraband. In addition, the
searches are conducted in private and are minimally intrusive.
In fact, the Eleventh Circuit's analysis in Powell goes even further and
would not seem to require any evidence of particular need, based on Bell. The
Court generally states as follows:
The difference between felonies and misdemeanors or other lesser offenses is without constitutional significance when it comes to detention facility strip searches. It finds no basis in the Bell decision, in the reasoning of that decision, or in the real world of detention facilities. The Supreme Court made no distinction in Bell between detainees based on whether they had been charged with misdemeanors or felonies or even with no crime at all. Instead, the policy that the Court treated categorically, and upheld categorically, was one under which all "[i]nmates at all Bureau of Prison facilities, including the MCC, are required 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, 99 S. Ct. at 1884. It was a blanket policy applicable to all.
Among the "[i]nmates at all Bureau of Prison facilities, including the MCC," were detainees facing only lesser charges, people incarcerated for contempt of court, and witnesses in protective custody who had not been accused of doing anything wrong. See id. at 524 & n.3, 558, 99 S. Ct. at 1866 & n. 3, 1884.
Powell v. Banett, 2008 U.S. App. LEXIS 18907, *23-24 (11th Cir. 2008). The
8

facility at issue in Bell was not "some special sort of seething cauldron of criminality," yet the Supreme Court pennitted strip searches as a reasonable means to address the identified penological interests. Powell, at *33 n.3. As noted in the Petition and by the Court in Powell, there is a significant risk of contraband smuggling even among those for whom there might not otherwise be reasonable suspicion, particularly due to the influence of gangs. Powell, at *34-36 (citing, e.g. Johannes v. Alameda County Sheriffs Dep't, 2006 U.S. Dist. LEXIS 63378, 2006 WL 2504400, at *4-6 (N.D. Cal. 2006); Dodge v. County of Orange, 282 F. Supp. 2d 41,46-49 (S.D.N.Y. 2003)).
Given the precise holding in Bell and its particular facts, this Court is requested to reconsider its position in this matter, taking into account the opinion and rationale in Powell, as well as the specific facts and evidence in this case. Specifically, this Court is respectfully requested to rehear this matter en banc and to determine that the strip search policy of Appellants is necessary, reasonable and constitutional. Appellants cannot be expected to satisfy their constitutional obligation to all inmates when this Court has effectively taken away the only and most effective method for maintaining the safety of its jail facilities. This is a matter of statewide importance and critical to the daily operations of Amicus and its members, all of the Sheriffs tlu·oughout the State of California. This issue is of
9

such magnitude that it is at least deserving ofthis Court's reconsideration en banc as well as this COUlt's specific evaluation of the Eleventh Circuit's recent opinion on the very same issue as are presented in this matter. B. The SheriffIs Entitled to Qualified Immunity.
This COUlt has concluded that it was clearly established in the Ninth Circuit that blanket pre-an-aignment strip searches were unconstitutional. Bull, 539 F.3d
1193,2008 U.S. App. LEXIS 18026, *18 (2008). This COUlt has indicated that its
precedent, including the opinions in Giles and Thompson required reasonable individualized suspicion for strip searches to be conducted. However, this issue was not really settled and, until this Court's cun-ent opinion, was subject to the interpretation of multiple COUlt decisions, involving vastly different types of searches and inmates, as well as varying degrees of evidence to support penological policies.
In Giles there was no evidence that the strip search perfonned on the imnate was related to any documented security lisle. In fact the Giles Court indicated that the county had "not demonstrated that its security interests wan-ant the serious invasion of privacy inflicted by its policy. The record reveals that the incidence of smuggling activity at the Bonneville County Jail is minimal." Giles, at 617 (emphasis added). It was entirely reasonable to interpret this case to stand for the
10

proposition that a blanket, per se policy of strip searching might be permissible and constitutional where there 'was a demonstratable and serious risk. In particular, the Giles Court pointed out that only eleven instances of concealment had occurred in an eighteen-month period, with only one of significance, a weapon. Id. In contrast, Appellants here have demonstrated the significant need and the success of such a strip search policy, namely 1,500 items confiscated during more than three-year period. Indeed, they have even shown the effects of not having such a strip search policy, namely the death of an inmate from an overdose. (Pet. at 5-6).
In Thompson, the Comt generally stated that reasonable suspicion of a particular individual was required for strip searches, but also went on to find that the taking of a blood sample and an x-ray, which were found to be more intrusive in certain respects than a strip search, were justified solely by "the County's interest of diagnosing severe medical problems to prevent transmission of serious disease among the general jail population." Thompson, at 1447. In fact, the Thompson Court specifically recognized the constitutional obligation ofjail officials to provide for the "personal safety" of imnates. Id. (citing Wright v. Rushen, 642 F.2d 1129, 1132-33 (9th Cir. 1981)). Therefore, the magnitude of the penological interests of a jail facility and the significance of the justification for a
11

blanket strip search policy could reasonably be seen as constitutional, since the balance would tip in favor ofjail administration and the constitutional rights of all imnates to safety and security while in custody.
Based on these authorities, it cannot be said to be beyond a reasonable officer's belief that he or she can balance the rights of all imnates to safety with the rights of individual imnates in being reasonably searched. An officer must satisfy both requirements and is not unreasonable in not being able to fully satisfy both where they are clearly conflicting.
Moreover, Thompson CalIDOt reasonably be said to be support for the proposition that individuals held on minor offenses cannot be subject to a blanket rule of strip seal'ches; Thompson was not arrested for a minor offense, but grand theft auto, which the Court found to be an offense sufficiently associated with violence to justify reasonable suspicion. Id. at 1447. In addition, it is not clear whether the search policy in this matter is of the same type as in Thompson, which involved a body cavity search. Id. at 1446 n.5.
Similarly, Ward v. County of San Diego, 791 F.2d 1329 (9th Cir. 1986), involved a strip search, pursuant to a blanket policy, which was done prior to a detennination of the alTestee's eligibility for an own recognizance release and which involved a body cavity search. It is not clear that they SaIlle type of policy
12

is at issue here and that there would not be a reasonable basis for finding that differences in policies would justify a different analysis of constitutionality.
Finally, qualified immunity should normally be afforded where there is any reasonable basis for disagreeing about the meaning and scope of precedent, as here. In Brewster v. Board ofEduc., 149 F.3d 971,977 (9th Cir., 1998), the Ninth Circuit pointed out that the "Supreme Court has made clear that qualified immunity provides a protection to government officers that is quite far-reaching. Indeed, it safeguards 'all but the plainly incompetent or those who knowingly violate the law.... If officers of reasonable competence could disagree on the issue whether a chosen course of action is constitutional, immunity should be recognized.'" Id. (emphasis added) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986); Knox v. Southwest Airlines, 124 F.3d 1103, 1107 (9th Cir. 1997) ('The test allows ample room for reasonable error on the part ofthe [government official]. ')).
Applied in the context of the facts and circumstances presented to Appellants, there was a reasonable basis for concluding that there was sufficient justification for a blanket policy of strip searches, where there may not have been in other factual scenarios in prior court opinions. Brewster, at 977 (qualified immunity defense requires consideration "not [of] a general constitutional
13

guarantee ... but its application in a particular context") (quoting Todd v. United States, 849 F.2d 365,370 (9th Cir. 1988) & citing Kelley v. Borg. 60 F.3d 664, 667 (9th Cir. 1995) ("Broad rights must be particularized before they are subjected to the clearly established test.")). See also, Aurielmna v. Rice, 910 F.2d 1449, 1455 (7th Cir. 1990) ("test for [qualified] ilmnunity is whether the law is clear in relation to the specific facts confronting the public official when he acted"). Where reasonable minds can differ and, even where reasonable officers could err, qualified immunity should still apply.
Moreover, if the policy is deemed constitutionally deficient, the fact that the Sheriff s Department and the City and County of San Francisco are already parties makes the Sheriff in his official capacity a superfluous defendant. Monell v. Department of Social Services of New York, 436 U.S. 658, 690 n.55 (1978) ("official-capacity suits generally represent only another way of pleading an action against an entity of which an officer is an agent"); Kentucky v. Graham, 473 U.S. 159, 165 & 167 n.14 (1985) ("there is no longer a need to bring official capacity actions against local govermnent officials").
IV. CONCLUSION. For all ofthe foregoing reasons, Amicus Curiae, the California State Sheriffs' Association, on behalf of its members - all 58 Sheriffs in the State of
14

Califomia, respectfully request that this Court grant Appellants' Petition and rehear this important matter en banco
Furthermore, Amicus Curiae request that this Court find that Appellants' policy of strip searching all inmates before introduction into the general jail population is reasonable and thus constitutional, and/or that the Sheriff is entitled to qualified immunity in implementing such policy. Dated: October 10,2008
Respectfully submitted, JONES & MAYER
B~~tY=lli~ Krista MacNevin Jee, Attomeys for Amicus Curiae, Califomia State Sheriffs' Association
15

STATE OF CALIFORNIA COUNTY OF ORANGE

) ) ss.

PROOF OF SERVICE

I am employed in the County of Orange, State of California. I am over the age of 18 and not a party to the within action. My business address is 3777 North Harbor Boulevard, Fullerton, California. On October 10, 2008, I served the foregoing document described as:
APPLICATION FOR LEAVE TO FILE AMICUS CURIAE BRIEF AND AMICUS CURIAE BRIEF IN SUPPORT OF APPELLANT'S PETITION FOR REHEARING AND REHEARING EN BANC
on the parties or attorneys for parties in this action who are identified on the attached service list, using the following means of service. (If more than one means of service is checked, the means of service used for each party is indicated on the attached service list).
BY EXPRESS MAIL. I placed _ the original or _ a true copy of the foregoing document in a sealed envelope individually addressed to each of the parties on the - - attached service list, and caused such envelope or package to be deposited in the.
x BY OVERNIGHT EXPRESS. I placed _ the original or.x. a true copy of the _ _ foregoing documents in a sealed envelope or package designated by Overnight
Express with delivery fees paid or provided for, individually addressed to each of the parties on the attached service list, and caused such envelope or package to be delivered to an authorized courier or driver authorized by Overnight Express to receive documents.
(State) I declare under penalty of perjury under the laws of the State of California - - that the foregoing is true and correct.
X (Federal) I declare that I am employed in the office of a member of the bar of this - - court, at whose direction the service was made.
Executed on October 10, 2008 at Fullerton, California 92835.
~fu~j{.ld.{lM DEBBIE MENICUCCI

Page 1

SERVICE LIST
Andrew Charles Schwaliz, Esq. Casper, Meadows & Schwartz 2121 N. California Blvd., Ste. 1020 Walnut Creek, CA 94596 (One copy) Dennis J. HelTen'a, City Attorney Joarme Hoeper, Chief Trial Attorney Danny Chou, Deputy City Attorney Robert A. Bonta, Deputy City Attorney Fox Plaza l390 Market Street, 7th Floor San Francisco, CA 94102-5408 (One copy) The Honorable Charles R. Breyer United States District Court Northern District of California 450 Golden Gate Avenue San Francisco, CA 94102 (One copy)
Page 2

Case No. 05-17080 (Consolidated with Case No. 06-15566)
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
MARY BULL, et a!., Plaintiffs!Appelles,
vs. CITY AND COUNTY OF SAN FRANCISCO, et a!.,
Defendants!Appellants.
MOTION FOR LEAVE TO FILE BRIEF OF AMICI CURIAE CALIFORNIA STATE ASSOCIATION OF COUNTIES AND
LEAGUE OF CALIFORNIA CITIES IN SUPPORT OF DEFENDANTS!APPELLANTS PETITION FOR REHEARING AND
REHEARING EN BANC
On Appeal from the United States District Court for the Northern District of California
(U.S. District Court No. C 03-1840 CRE) The Honorable Charles R. Breyer
JENNIFERB. HENNING, SBN 193915 Litigation Counsel California State Association of Counties 1100 K Street, Suite 101 Sacramento, California 95814 Telephone: (916) 327-7535 Facsimile: (916) 443-8867
Attorney for Amici Curiae California State Association of Counties and League of California Cities

MOTION FOR LEAVE TO FILE BRIEF OF AMICI CURIAE Amici Curiae, California State Association of Counties ("CSAC") and League of California Cities ("League"), respectfully move this Court, pursuant to Federal Rule of Appellate Procedure 29, for leave to file the brief submitted with this motion in support of Defendants and Appellants City and County of San Francisco, et al.
I. INTEREST OF AMICI CURIAE The California State Association of Counties (CSAC) is a non-profit
corporation. The membership consists of the 58 California counties. CSAC sponsors a Litigation Coordination Program, which is administered by the County Counsels' Association of California and is overseen by the Association's Litigation Overview Committee, comprised of county counsels throughout the state. The Litigation Overview Committee monitors litigation of concern to counties statewide and has determined that this case is a matter affecting all counties.
The League of California Cities ("League") is an association of 480 California cities dedicated to protecting and restoring local control to provide for the public health, safety, and welfare of their residents, and to enhance the quality of life for all Californians. The League is advised by its Legal Advocacy Committee, which is comprised of 24 city attorneys from all regions of the State.

The Committee monitors litigation of concern to municipalities, and identifies those cases that are of statewide - or nationwide - significance. The Committee has identified this case as being of such significance.
The issue of violence and drug use in this State's jails and prisons is one of critical importance to CSAC and the League. Local law enforcement is on the front line for dealing with arrestees. Pretrial detainees begin their process through the criminal justice system in our jails. Though Amici Curiae are not aware of any comprehensive study involving county jails and other local detention centers, the State prison system illustrates the serious problem of inmates obtaining contraband while incarcerated in the general population. In the latest data available, covering 2006, there were 14,490 incidents in our State prisons, which is a rate of9.2 incidents per 100 inmates.' This is the highest incident rate in more than twenty yeats. Of these reported incidents, 1,869 involved assault with a weapon, 1,238 involved possession of a weapon, and 1,005 involved a controlled substance. This averages to more than 11 incidents per day in our State's prisons involving contraband. The dangers facing our local jail personnel, as well as our residents both visiting and incarcerated in our jails, is apparent from these facts.
The statistics in this paragraph are found in: California Prisoners and Parolees, California Department of Corrections and Rehabilitation, p. 34 (2006) [available at: http:www.cdcr.ca.govlReports_ResearchiOffender_Infonnation_Services_ Branchl AnnuallCaIPris/CALPRlSd2006.pdf].

III. Conclusion Amici Curiae respectfully move that this Court grant leave to file the Brief
of Amici Curiae submitted with this motion.

iL, DATED: October

2008

Respectfully submitted,

CALIFORNIA STATE ASSOCIATION OF COUNTIES, and LEAGUE OF CALIFORNIA CITIES

, SBN 193915 California State Association of Counties

Fmther, the general liability exposure of cities and counties, particularly of our various police departments and law enforcement agencies, will be significantly affected by this Court's ruling regarding the Fourth Amendment constitutionality of blanket strip search policies in detention facilities. As such, Amici Curiae have a significant interest in the decision of this Court with regard to a possible en banc hearing.
II. Amici Curiae's Brief Amici Curiae desire to file this brief in order to articulate and clarifY the
issues and law surrounding this Court's deliberations and the potential burden it presents to the law enforcement operations of cities and counties. Amici's counsel is familiar with the briefs filed in this case and has reviewed the Petition for Rehearing and Rehearing En Banc. The amicus brief enclosed herewith does repeat these arguments, but instead refers this Court to some cases not otherwise cited by the Petitioner and provides the Court with the public policy concerns that are of particular interest to CSAC's and the League's member cities and counties.

 
 Case No. 05-17080 (Consolidated with Case No. 06-15566)
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
MARY BULL, et aI., Plaintiffs!Appelles,
vs. CITY AND COUNTY OF SAN FRANCISCO, et aI.,
Defendants!Appellants.
BRIEF OF AMICI CURIAE CALIFORNIA STATE ASSOCIATION OF COUNTIES AND LEAGUE OF CALIFORNIA
CITIES IN SUPPORT OF THE PETITION FOR PANEL REHEARING AND REHEARING EN BANC SUBMITTED BY THE
CITY AND COUNTY OF SAN FRANCISCO
On Appeal from the United States District Court for the Northern District of California
(U.S. District Court No. C 03-1840 CRE) The Honorable Charles R. Breyer
JENNIFERB. HENNING, SBN 193915 Litigation Counsel California State Association of Counties 1100 K Street, Suite 101 Sacramento, California 95814 Telephone: (916) 327-7535 Facsimile: (916) 443-8867
Attorney for Amici Curiae California State Association of Counties and League of California Cities

TABLE OF CONTENTS
'TABLE OF AUTHORITIES .......................................................................... ii
1. INTRODUCTION ................................................................................... 1
II. ARGUMENT ........................................................................................... 4
A. United States Supreme Court Precedent Dictates That Arrestees Can Be Subjected To Strip Searches Before Entering the General Population Without Reasonable Suspicion ....................................................................... 4
1. The Supreme Court Upheld A Policy Strikingly Similar To The Policy At Issue Here .................................................................................................. 5
2. A "Balancing Test" Analysis Under Bell v. Wolfish ............................... 6
13. Strip Searches Of Pre-Trial Detainees Before Entering The General :Population Are Consistent With The Balancing Test Established In Bell ..... 8
1. There Is A Valid, Rational Connection Between The Disputed Policy And The Legitimate Governmental Interest Of Preventing Introduction Of Contraband Into The General Population ....................................................... 8
2. There Are No Alternative Means Of Exercising The Right To Privacy That Is Implicated By The Disputed Policy ................................................... 9
3. The Panel's Interpretation Of Detainee's Right to Privacy Would Have A Significant Negative Impact On The Facility's Guards, Staff, Visitors, and Other Inmates, And On The Allocation Of Prison Resources Generally..... 10
III. CONCLUSION .................................................................................. 11
CERTIFICATION OF COMPLIANCE ....................................................... 13

TABLE OF AUTHORITIES
Cases Arruda v Fair, 710 F.2d 886 (1st Cir. 1983) .................................................. 6 Bellv. Wolfish, 441 U.S. 520 (1979) ..................................................... passim Blockv. Ruthelford, 468 U.S. 576 (1984) ...................................................... 7 Bull v. City and County ofSan Francisco, 539 F.3d 1193 (2008) ........... 2, 10 Dobrowolskyj v. Jefferson County, Kentucky, 823 F.2d 955 (1987) .............. 7 Goffv. Nix, 803 F.2d 358 (8th Cir. 1986)....................................................... 6 Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U.S. 119 (1977)
................................................................................................................. 4,5 Kraushaar v. Flanigan, 45 F.3d 1040 (7th Cir. 1995) ................................... 9 Logan v. Shealy, 660 F.2d 1007 (4th Cir. 1981) ............................................ 8 Pellv. Procunier, 417 U.S. 817 (1974) ...................................................... 4,5 Powell v. Barrett, 2008 US.App.LEXIS 18907 (11th Cir. Sept. 4, 2008) .... 3 Procunier v. Martinez, 416 U.S. 396 (1974) .............................................. 4, 5 Savard v. Rhode Island, 338 F.3d 23 (lst Cir. 2003) ..................................... 8 See Dufi'in v. Spreen, 712 F.2d 1084 (6th Cir. 1983) ..................................... 7 Swain v. Spinney, 117 F .3d 1 (1 st Cir. 1997) ................................................. 8 Other Authorities California Prisoners and Parolees, California Department of Corrections
and Rehabilitation, p. 34 (2006) .................................................................. 1
ii

I. INTRODUCTION The issue of violence and drug use in this State's jails and prisons is one of critical importance to Amici Curiae California State Association of Counties ("CSAC") and the League of California Cities ("League"). I Local law enforcement is on the front line in dealing with arrestees. Pretrial detainees begin their journey through the criminal justice system in our jails. Though Amici Curiae are not aware of any comprehensive study involving county jails and other local detention centers, the State prison system illustrates the serious problem of inmates obtaining contraband while incarcerated in the general population. In the latest data available, covering 2006, there were 14,490 incidents in our State prisons, which is a rate of9.2 incidents per 100 inmates.2 This is the highest incident rate in more than twenty years. Of these reported incidents, 1,869 involved assault with a weapon, 1,238 involved possession ofa weapon, and 1,005 involved a controlled substance. This averages to more than 11 incidents per day in our State's prisons involving contraband.
The interests of amici curiae are set forth the motion for leave to file this brief. 2 The statistics in this paragraph are found in: California Prisoners and Parolees, California Department of Corrections and Rehabilitation, p. 34 (2006) [available at: http:www.cdcr.ca.goviReports_Research/Offender_Information_Services_B ranch/AnnuallCaIPris/CALPRlSd2006.pdf.
1

The dangers facing our local jail personnel, as well as our residents both visiting and incarcerated in our jails, is apparent from these facts. To address the documented problem in its jails, the City and County of San Francisco adopted a policy that intruded as minimally as possible. Detainees were subject to visual searches only when they were to be moved into the general population. The searches involved no touching, occurred in private, and were conducted by officers of the same gender.
In Bell v. Wolfish, 441 U.S. 520 (1979), the United States Supreme Court held that visual strip searches can be conducted without individualized, reasonable suspicion. Since then, this Court has reviewed on several occasions Fourth Amendment challenges to a variety of strip policies, creating a string of cases in which the Court has attempted to distinguish Bell based on a variety of factors. The result is binding precedent that led the panel in this case to conclude that a strip search similar in every critical aspect to the one upheld by the Supreme Court in Bell is unconstitutional.
Judge Ilcuta, in her concurring opinion, felt compelled by Circuit precedent to reach this result, but urged reconsideration of the Ninth Circuit case law. (Bull v. City and County o/San Francisco, 539 F.3d 1193, 1202 (2008).) An en banc Eleventh Circuit recently undertook a similar exercise.
2

It revisited its case law on this subject and concluded "a policy or practice of strip searching [arrestees] as part of the booking process" does not violate the Fourth Amendment, "provided that the searches are no more intrusive on privacy interests than those upheld in the Bell case." (Powell v. Barrett, 2008 U.S.App.LEXIS 18907 (lIth Cir. Sept. 4, 2008).)3
Amici CSAC and the League urge this Court to undertake a similar review. Rehearing is necessary for two reasons. First, the panel's holding takes this Court further away from the Supreme Court's ruling in Bell that blanket strip searches can be conducted on less than probable cause. Second, the panel's decision is squarely at odds with the Eleventh Circuit's recent holding that a policy or practice of searching all arrestees as part of the process of booking them into the general population of a detention facility is constitutionally permissible. (Id.) /1/
3 In Powell v. Barrett, the Eleventh Circuit upheld a policy of the Fulton County, Georgia jail that required a visual strip search of inmates entering or re-entering the general population at that facility. (Powell, supra, 2008 U.S.App.LEXIS 18907 at *2-3.) Unlike the policy at issue in this case, the Fulton County policy required inmates to be searched in a group setting. (Id. at *5.) By comparison, San Francisco's policy of private searches is even less intrusive than the policy upheld by the Eleventh Circuit in Powell.
3

II. ARGUMENT A. United States Supreme Court Precedent Dictates That Arrestees
Can Be Subjected To Strip Searches Before Entering the General Population Without Reasonable Suspicion
Between 1974 and 1977, the United States Supreme Court decided three important cases brought by prisoners raising constitutional claims challenging prison regulations or policies. In Procunier v. Martinez, 416 U.S. 396 (1974), the Court described the principles that frame an analysis of prisoners' constitutional claims. First, the regulation or practice in question must further "one or more of the substantial governmental interest of security, order, and rehabilitation." (Id. at 413.) Second, the limitation of the constitutional freedom "must be no greater than is necessary or essential to the protection ofthe particular governmental interest involved." (Id. at 413-14.) The decision was followed by Pell v. Procunier, 417 U.S. 817 (1974) and Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U.S. 119 (1977), which built upon Martinez in holding that that examination of prisoners' constitutional claims must occur with wideranging deference to prison administrators and authorities. (Jones, supra, 417 U.S. at 126-28.) Taken together, these decisions establish that ajail regulation or policy need only further the security interests of the jail to the
4

extent necessary, and that the judgment ofjail administrators should be accorded great deference.
1. The Supreme Court Upheld A Policy Strikingly Similar To The Policy At Issue Here
In 1979, the Supreme Court decided the seminal case of Bell v. Wolfish, 441 U.S. 520 (1979). Bell specifically addressed "the constitutional rights of pretrial detainees - those persons who have been charged with a crime but who have not yet been tried on the charge." 4 (Id. at 523.) Among the complaints brought by the plaintiffs was the institution's practice of conducting visual body-cavity searches after contact visits. (Id. at 527.)
The Court followed the holdings in Martinez, Pell and Jones and upheld the constitutionality of visual body-cavity searches very similar to the searches involved in the present case. The Court noted that "[c]orrections officials testified that visual cavity searches were necessary not only to discovery but also to deter the smuggling of weapons, drugs, and other contraband into the institution." (Id. at 558.) The Court went on to use standard Fourth Amendment analysis and applied a balancing test in 4 The facility at issue in Bell included, in addition to pretrial detainees, "inmates ... who are serving generally relatively short sentences in a service capacity, ... witnesses in protective custody, and persons incarcerated for contempt." (Bell, 441 U.S. at 524.) The policy applied to all of these categories of person. (Jd.)
5

which it considered 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.) This "balancing test" examination resulted in the Court's conclusion that blanket strip searches can be conducted on less than probable cause. (Bell, 441 U.S. at 560.)
2. A "Balancing Test" Analysis Under Bell v. Wolfish Jail detainees may constitutionally be subject to visual strip searches without individualized, reasonable suspicion. (Bell v. Wolfish, supra; Arruda v Fair, 710 F.2d 886 (1st Cir. 1983)(upholding the constitutionality of subjecting inmates to strip search after they receive visitors); Goffv. Nix, 803 F.2d 358 (8th Cir. 1986)(same).) The common thread and security concern in cases that have upheld such searches is a detainee's physical access to and contact with the "outside world." Such contact presents the opportunity for contraband to be introduced into the general jail population where it may result in physical harm to the detainees or jail personnel. Likewise, any pretrial detainee who has just been arrested and booked has been brought into the jail from the "outside world" and, presumably, has been under no supervision prior to arrest and detainment.
6

In Bell, it was noted that it would be extremely hard for a detainee to conceal contraband or weapons because the visits took place under observation. (Bell, 441 US. at 504 (J. Stevens, dissenting).) Yet the strip searches were constitutional. The potential for a new arrestee to have obtained and secreted illicit contraband is immeasurably greater than that of an incarcerated prisoner. (See Bell v. Wolfish, 441 US. at 546, n. 28 ("Indeed, it may be that in certain circumstances [pretrial detainees] present a greater risk to jail security and order"); Block v. Rutherford, 468 US. 576, 587 (1984)("It is not unreasonable to assume ... that low security risk detainees would be enlisted to help obtain contraband or weapons by their fellow irunates").)
Obviously, every pretrial detainee does not require a strip search because many are never booked into the general population. However, a detainee who will be introduced into the general jail population is a unique ]Jroblem, as numerous courts have recognized. (See Dufrin v. Spreen, 712 F.2d 1084, 1087 (6th Cir. 1983)(strip search upheld where a pretrial detainee would ultimately come into contact with the general jail population); Dobrowolskyj v. Jefferson County, Kentucky, 823 F.2d 955 (1987)(upholding a strip search where detainee was not strip searched until his movement into the general population of the jail was imminent).
7

Compare Logan v. Shealy, 660 F.2d 1007,1014 (4th Cir. 1981)(strip search unconstitutional where, inter alia, "[a]t no time would [the plaintiff] or similar detainees be intermingled with the general jail population"); Swain v. Spinney, 117 F.3d 1, 8 (lst Cir. 1997)("There was no risk that [the detainee] would come into contact with other prisoners, or be able to smuggle contraband or weapons into a secure environment"); Savard v. Rhode Island, 338 F.3d 23, 29 (1st Cir. 2003)("There are important differences between detaining an arrestee in virtual isolation and introducing an arrestee into the general population of a maximum security prison.").)
B. Strip Searches Of Pre-Trial Detainees Before Entering The General Population Are Consistent With The Balancing Test Established In Bell. 1. There Is A Valid, Rational Connection Between The Disputed Policy And The Legitimate Governmental Interest Of Preventing Introduction Of Contraband Into The General Population. Prison administrators are responsible for maintaining internal order
and discipline, and for securing the safety, security and, to the extent possible given realistic constraints, the rehabilitation ofthe imnates committed to it. It cannot be disputed that a detention facility has a legitimate penological interest in preventing the introduction of weapons, drugs, money, and other contraband into the general inmate population.
8

Such paraphernalia can present a danger to inmates, guards, staff and visitors, can result in discipline problems, and can inhibit the rehabilitation of detainees (particularly with regard to drug use). The use of strip search is both exceptionally effective and directly related to the goal of keeping the general jail population free from dangerous and/or disruptive paraphernalia.
2. There Are No Alternative Means Of Exercising The Right To Privacy That Is Implicated By The Disputed Policy.
A policy such as the one at issue in this case is designed to be as unobtrusive as possible. It is only visual. There is no touching. It is conducted in private by an officer of the same gender. The point of a strip search is to search the subject's private areas for contraband and illicit material; any alternative to this invasion would render the policy pointless.5 The intrusion of an individual inmate, though highly personal, is substantially outweighed by the institutional interest in protecting its staff, guards, visitors, and the prison population at large.
The policy at issue here goes no farther than is necessary to accomplish its stated goals. There is no evidence in the record that the need for the policy has been exaggerated by corrections officials. And as 5 "Where an arrestee is wearing blue jeans or another heavy material, even the most thorough patdown search will not necessarily turn up small items such as several hits of LSD on postage stamps, a small rock of crack cocaine, or a razor blade." (Kraushaar v. Flanigan, 45 F.3d 1040, 1046 (7th Cir. 1995).
9

established above, the judgment of such officials demands judicial deference.
3. The Panel's Interpretation Of Detainee's Right to Privacy Would Have A Significant Negative Impact On The Facility's Guards, Staff, Visitors, and Other Inmates, And On The Allocation Of Prison Resources Generally.
As noted above, the latest statistics available from the State prison system show that incidents involving contraband are shockingly common and on the rise. This situation is a real and dangerous reality in our local j ails as well. As the dissent noted, the record in this case is "replete with incidents ofjail officials finding contraband during strip searches," including those arrested for minor offenses. (Bull, supra, 539 F.3d at 1206.) An amicus brief was also filed by San Mateo County detailing its similar experience with the problem of smuggling contraband. It is a significant issue that jail administrators must address.
The purpose of the strip search policy is to prevent the introduction of weapons, drugs, money and other illicit material into the general jail population. By virtue of this goal, and the nature of the strip search itself, the only possible accommodation would be to limit strip searches to suspicious cases. This would defeat the goal of the policy. It is clear, and readily acknowledged by the Supreme Court, that "inmate attempts to
10

secrete [contraband] into the [detention facilities] by concealing them in body cavities are [well] documented." (Bell, 441 U.S. at 559.)
Alternative methods of search and detention, such as metal detectors, are inherently incapable of revealing the myriad of objects and materials that a visual search would tum Up.6 Not all weapons are made of metal. Certainly paper money, drugs, stamps, cigarettes, and a host of other materials could pass through such a device undetected. Ultraviolet and infrared detection devices are similarly unreliable. Further, said devices are costly, and requiring their purchase would further strain the resources of an already under-funded operation.
Ill. CONCLUSION The panel's decision has moved the Ninth Circuit beyond the United States Supreme Court's rulings on the issue of pretrial detainee strip searches. It directly conflicts with case law of another circuit. And it dangerously underestimates the seriousness of the problems faced by local jails in booking pretrial detainees into the general population. As such,
6 It should be noted, however, that "[g]ovemmental action does not have to be the only alternative or even the best alternative for it to be reasonable, to say nothing of constitutional." Bell, 441 U.S. at 542, n. 25.
11

Amici Curiae urge this Court to grant San Francisco's petition and affirm the city's strip search policy.

Dated: October 1.5 ,2008

Respectfully Submitted,

iii B. Henning, SBN 193915

Counsel for Amici Curiae California State Association of Counties and League of California Cities

12

 
 Case: 05-17080 11/20/2008 Page: 1 of 23 DktEntry: 6713425

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARY BULL, ET AL.,
Plaintiffs - Appellees, vs.
CITY AND COUNT OF SAN FRANCISCO, ET AL.,

9th Circuit Case No. 06-15566 Consolidated with Docket No. 05-17080
U.S. Dist. Ct, N.D. CA, San Francisco, Case No. No. CV-03-01840-CRB/EMC

Defendants - Appellants. ______________________________________________

PLAINTIFFS’/APPELLEES= RESPONSE TO DEFENDANTS’/APPELLANTS’ PETITION FOR REHEARING AND
REHEARING EN BANC (FRAP 35, 40) ________________________________________________
On Appeal from the United States District Court for the Northern District of California The Honorable Charles R. Breyer

LAW OFFICE OF MARK E. MERIN Mark E. Merin, SBN 043849 Cathleen A. Williams, SBN 68029 2001 P Street, Suite 100 Sacramento, CA 95811 Telephone: (916) 443-6911 Facsimile: (916) 447-8336

CASPER, MEADOWS, SCHWARTZ & COOK Andrew Charles Schwartz, SBN 064578 Thomas A. Seaton, SBN 62713 2121 N. California Blvd., Suite 1020 Walnut Creek, CA 94596 Telephone: 925/947-1147 Facsimile: 925/947-1131

Attorneys for Plaintiffs and Appellees, MARY BULL, JONAH ZERN, LISA GIAMPAOLI, MARCY CORNEAU, ALEXIS BRONSON, MICKI
MANGOSING, CHARLI JOHNSON, LEIGH FLEMING, LAURA TIMBROOK, J. QUECHAUN ALLEN, DIANA SMITH, MICHELE DE RANLEAU, MICHAEL MARRON, STEVE NOH, SISTER BERNIE GALVIN
AND ALL OTHERS SIMILARLY SITUATED

Case: 05-17080 11/20/2008 Page: 2 of 23 DktEntry: 6713425
TABLE OF CONTENTS
INTRODUCTION....................................................................................................1 STATEMENT OF THE CASE...............................................................................6 STATEMENT OF FACTS ......................................................................................7
A. THE CLASS BEFORE THE COURT .......................................................................7 B. THE JAIL’S STRIP SEARCH POLICIES .................................................................7 C. THE CLASSIFICATION PROCESS.........................................................................8 D. THE SMUGGLING PROBLEM AND THE SECURITY JUSTIFICATION FOR THE STRIP SEARCH OF THE CLASS BEFORE THE COURT.............................................................9 ARGUMENT ..........................................................................................................11 A. BELL V. WOLFISH DOES NOT REQUIRE JUDICIAL DEFERENCE TO JAIL OFFICIALS’ JUDGMENT WHEN THEY, AS HERE, EXAGGERATE THEIR RESPONSE TO SECURITY CONSIDERATIONS................................11 B. THE ELEVENTH CIRCUIT’S DECISION IN POWELL V. BARRETT IS NEITHER CONTROLLING NOR PERSUASIVE AND FAILS TO FOLLOW BELL V. WOLFISH’S ANALYTICAL APPROACH OF BALANCING SECURITY NEEDS AND PRIVACY INTERESTS ...........................................13 C. THIS CASE CANNOT BE DISTINGUISHED FROM PREVIOUS CASES INVALIDATING SIMILAR STRIP SEARCH POLICIES .................................15 CONCLUSION.......................................................................................................15 CERTIFICATE OF COMPLIANCE...................................................................16
i

Case: 05-17080 11/20/2008 Page: 3 of 23 DktEntry: 6713425
TABLE OF AUTHORITIES
CASES Bell v. Wolfish 441 U.S. 520 (1979)------------------------------------------------------------------ passim Bull v. City and County of San Francisco 539 F. 3d 1193 ---------------------------------------------------------------------- 1, 2, 3, 6 Giles v. Ackerman 746 F.2d 614 (9th Cir. 1984)-----------------------------------------------------------4, 14 Hill v. Bogans 735 F.2d 391 (10th Cir. 1984) -------------------------------------------------------------- 5 Kennedy v. Los Angeles Police Department 901 F.2d 702 (9th Cir. 1990) --------------------------------------------------- 2, 4, 12, 13 Masters v. Crouch 872 F.2d 1248 (6th Cir. 1989) -------------------------------------------------------------- 5 Powell v. Barrett 541 F3d 1298 (11th Cir 2008) ------------------------------------------------- 4, 5, 13, 14 Thompson v. City of Los Angeles 885 F.2d 1439 (9th Cir. 1989) ------------------------------------------------------ 4, 5, 14 Ward v. County of San Diego 791 F.2d 1329 (9th Cir. 1986) ------------------------------------------------------------- 4 Way v. County of Ventura 2006 WL 1028835, 4, 5 (9th Cir. 2006)--------------------------------------------------14 Weber v. Dell 804 F.2d 796 (2d Cir. 1986) --------------------------------------------------------------- 5
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STATUTES California Penal Code § 825 --------------------------------------------------------------- 9 Fourth Amendment to the United States Constitution --------------------------- passim
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INTRODUCTION
Defendants-Appellants (“Defendants”) seek Rehearing and Rehearing En Banc of the panel decision upholding the lower Court’s order that Defendants’ policy to strip search all pre-arraignment detainees classified for housing at the San Francisco jail violated the Fourth Amendment.1
Defendants once again take the position they previously asserted that the problem of smuggling at the San Francisco jail – which is pervasive – justifies the strip search at issue here, which involves a limited, innocuous subset of the tens of thousands of arrestees who were booked and processed at the San Francisco jail during the relevant period. However, as the panel’s majority decision succinctly stated:
The fact that San Francisco had documented a significant problem of contraband smuggling does not muddy the clarity of the law. The evidence defendants produced . . . shows only that contraband smuggling was a significant problem in the San Francisco jails; it does not demonstrate that persons eligible for inclusion in the class in this case contributed significantly, or even at all, to that problem. Bull v. City and County of San Francisco, 539 F. 3d 1193, 1201. [emphasis added].
The evidence, in other words, simply does not support, and even contradicts, Defendants’ assertion that members of the class here were engaged in illicit smuggling.
Defendants’ claim that their strip search of the Plaintiff class was lawful because “many persons arrested for minor violations, such as shoplifting and traffic violations…often hid drugs or weapons on their body [sic] or inside their bodily orifices in an effort to evade confiscation,” is misleading. (Defendants’ Petition, p.1.) It implies, incorrectly, that the District Court and Ninth Circuit panel decisions have prohibited the jail from strip searching persons arrested for minor violations. Yet, it is
1 Orders of U.S. District Court Judge, Charles R. Breyer, September 22, 2005, and February 23, 2006 – consolidated on appeal.

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well established, and Plaintiffs have never disputed, that the jail is entitled to strip
search minor offense arrestees for a number of reasons. The arrest charge is only one
factor in determining whether an arrestee can and should be strip searched; prior arrest
history, parole/probation status, as well as “appearance and conduct” (including gang
affiliation) are all important factors in making this determination, and provide a lawful
basis for a strip search. Kennedy 901F.2d at 716. Contrary to the concern expressed by
the panel dissenter, the Defendants have never taken the position that they “know very
little about the arrestee” and are therefore unable to determine whether an arrestee
should be strip searched under the reasonable suspicion standard. (539 F.3d at 1211.) Given the importance of the factual record in this case, it is especially egregious
that Defendants have withheld information concerning the prior arrest history and other information relevant to the strip search of arrestees charged with minor offenses in the past, possibly leading the dissenter on the panel to believe that the instances cited were class members. (591 F.3d at 1210-1211.) The fact remains that – setting aside the instances where Defendants have willfully concealed the relevant documentation concerning the security justification for the strip search – every single citation to the record by Defendants demonstrates the falsity of their central claim that it was reasonable and necessary to strip search this class.2 Defendants argue that the
2 Defendants’ citations to the evidence to substantiate its claim of smuggling by the class before the Court are contained in two footnotes of their petition. (fn 3 and 4.) The citations are based on various jail records which sometimes show the arrest charge or otherwise indicate the reasons for the search; in some instances, as noted above, Defendants have not seen fit to release information about the arrestee or the circumstances of the strip search, even though such records are, of course, available to them. As to these incomplete records, there is no way to know why or when the person was strip searched, and therefore their relevance to this case is impossible to determine.
The first group of citations supposedly supports the claim that strip searches have uncovered various items of contraband – knives, scissors, syringes, cocaine, heroin. (Defendants’ Petition, p.6, fn. 3.) As demonstrated in Plaintiffs’ Statement of Facts, infra,
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unfortunate death of an inmate due to a drug overdose somehow supports their policy, yet there’s no evidence that this inmate obtained drugs because a new arrestee was not strip searched or that a strip search of persons in this class would have prevented this death.
This is why the panel decision concluded that “Defendants’ claim that they have documented instances of eligible class members engaging in smuggling contraband is not credible and is not supported by the record.” (539 F.3d at 1198.) And this is why, as the panel further found, “we cannot conclude there is any reasonable relationship between the criteria triggering a search (classification for housing) and the interest in conducting the search (eliminating the introduction of contraband.)” (539 F.3d at 1199.)
Notwithstanding their failure to present a security justification for the strip search of the limited class of arrestees whose Fourth Amendment rights are at issue here, Defendants assert three different bases for their attack on the panel decision. First, they assert that Bell v. Wolfish, 441 U.S. 520 (1979) mandates absolute, unconditional deference to the judgment of jail officials, and requires this Court to reverse and repudiate twenty five years of precedent holding that jail officials must show a reasonable factual relationship between the strip search policy and the security problem it is supposed to address. (Defendants’ Petition, p.2-3; 8-9.)
Yet in Bell, the Supreme Court made crystal clear that courts should defer to jail administrators only when there is an “absence of substantial evidence in the record” to indicate that the officials have “exaggerated” their response to “the problems that arise
every documented instance involved persons who were lawfully strip searched precisely because there was a security justification to do so.
The second group of citations supposedly substantiates the assertion that “persons not arrested for crimes involving drugs, weapons, and violence secreted drugs and other dangerous contraband in their bodily orifices.” Again, all the documented instances cited involve lawful strip searches, since of course there are security reasons to strip search arrestees which are based on factors other than the nature of the arrest charges, and which are not contested here. (Defendants’ Petition, p.7, fn. 4.)
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in the day-to-day operation of a corrections facility.” (441 U.S. at p.548.) This case presents the very situation discussed by Bell in which jail administrators “exaggerated” their response to the problem of contraband smuggling at the jail by sweeping within their blanket strip search policy a clearly defined, innocuous class which demonstrably does not engage in such illicit and dangerous activity.
Therefore, the blanket strip search policy at issue here is not “constitutional” just because Bell found it appropriate to defer to jail administrators in that case, which presented different circumstances relating to the security need for the strip search. In other words, the strip search policy in that case did not represent an “exaggerated” response to a security threat, while here it does, rendering deference unwarranted.
Second, Defendants attack the panel decision by arguing that Powell v. Barrett, 541 F3d 1298 (11th Cir 2008) throws new light on Ninth Circuit precedent, revealing that this Court of Appeals has been wrong all along in deciding such cases as Giles v. Ackerman, 746 F.2d 614 (9th Cir. 1984); Ward v. County of San Diego, 791 F.2d 1329 (9th Cir. 1986); Thompson v. City of Los Angeles, 885 F.2d 1439 (9th Cir. 1989); and Kennedy v. Los Angeles Police Department, 901 F.2d 702 (9th Cir. 1990). There is a short, but dispositive, answer to this contention. Powell did not, as here, involve the visual inspection of each arrestee’s body cavity, the type of strip search that has consistently given the Courts, as Bell itself said, “instinctively the most pause” and which has been widely viewed inside and outside of this circuit as “dehumanizing and humiliating.” (Bell, 441 U.S. at 558; Kennedy, 901 F.2d at 711.)
Instead, in Powell, arrestees were required to shower together in groups of up to thirty inmates and then, while standing in a line or singly, “show [their] front and back sides while naked” to a guard. 541 F.3d at 1300. The intrusion upon individual privacy in Powell was minimal, and perhaps it is for this reason that the Court found it selfevident that deference to the jail administration was appropriate under Bell. In any case, the privacy interests at stake in Powell are not those at issue here, and there is no
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need for this Court to grant rehearing or rehearing en banc “to address this intercircuit conflict.” (Defendants’ Petition, p. 3.)
In addition, any decision by this Court would not alter the arguable existence of an inter-circuit conflict since every other circuit to address the issue, aside from the Eleventh Circuit, has concluded that post-arrest placement in the general population is a relevant factor in the Fourth Amendment calculus, but, standing alone, is inadequate to justify a routine strip search policy. (Compare, e.g., Weber v. Dell, 804 F.2d 796, 802 (2d Cir. 1986) (general population a factor); Masters v. Crouch, 872 F.2d 1248, 1255 (6th Cir. 1989) (same); Thompson v. City of Los Angeles, 885 F.2d 1439, 1447 (9th Cir. 1989) (same); Hill v. Bogans, 735 F.2d 391, 394-95 (10th Cir. 1984) (same) with Powell v. Barrett, 541 F3d 1298 (11th Cir 2008) (general population a per se justification for strip search).)
Finally, Defendants’ third attack on the panel decision is that the security justification in San Francisco is distinguishable from Giles, Kennedy, Thompson, Ward, and all the District Court decisions that have followed these cases. With regard to this factual contention, it is puzzling that the Defendants do not accurately present the facts before both the District Court and the Court of Appeals, or disclose consistent and complete documentation of the circumstances surrounding the strip searches advanced as justification for the blanket policy.
Contrary to Defendants’ attacks on this Court’s opinion, there is a compelling record based on hundreds of thousands of strip searches over a period of many years that shows the class before this Court is not involved in illicit smuggling. Given this key fact, there is no reason to lump Plaintiffs with the class of arrestees who do present a security risk. Rather, it is reasonable to look at the members of this class individually. The respect we show to individuals’ bodily privacy under our Constitution requires no less. Indeed, the standard Defendants must meet to lawfully strip search such individuals is so minimal – any articulable reason to search is arguably enough under
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the “reasonable suspicion” standard – the jail is fully protected. Defendants have never made the claim that it is not feasible to ferret out contraband by strip searching this class on a case-by-case basis.
STATEMENT OF THE CASE
On August 22, 2008, a panel of the 9th Circuit Court of Appeals filed its decision upholding the decision of District Court Judge Charles R. Breyer that the policy of the City and County of San Francisco and its Sheriff Michael Hennessey to strip search all pre-arraignment detainees classified for housing, violated the Fourth Amendment’s prohibition against unreasonable searches with respect to the class certified in the case, which included only a limited subset of the arrestee population – those “who were arrested for an offense not involving drugs, weapons, violence, or a violation of parole or probation; who did not have a criminal history involving drugs, weapons, or violence; and whose behavior did not create individualized suspicion warranting the search.” (539 F.3d at 1198.)
The panel’s opinion, authored by Judge Thomas, was joined by Judge Ikuta who filed a concurring opinion; Judge Tallman dissented. The panel followed a long line of 9th Circuit precedent which outlawed the pre-arraignment blanket strip search of arrestees unless there is “some reasonable relationship between the criteria used to identify the specific individuals eligible for a strip search and the interest in preventing the introduction of contraband”, or, in other words, that the strip search policy “‘bear some discernible relationship to security needs.’” (539 F.3d at 1197-1198, [internal quote omitted].)
Defendants petitioned for rehearing and rehearing en banc and the Court directed Plaintiffs to file their answer to that petition by November 20, 2008.
Lest the twin towers of rationality and stare decisis which underpin our rule of law crumble, Defendants’ arguments must fail.
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STATEMENT OF FACTS
A. The Class Before the Court The class of arrestees before the Court in this case consists of those alleged
minor offenders who were brought to the San Francisco jail on charges not involving drugs, weapons, or violence, who had no criminal history of such offenses, who were not on parole or searchable probation, and who also were not reasonably suspected of concealing or seeking to smuggle contraband that could only be discovered by a strip and visual body cavity search, but who were nonetheless strip searched. (E.R. V: 10631064, [Summary Judgment Memorandum and Order, pp.3:17-4:5]; Plaintiffs= E.R. 2837 [Amended Order]).) This strip search invariably involved inspection of the naked body and rectal and vaginal cavities, requiring the arrestees to squat, spread their cheeks and, if female, their labia, and to cough while under observation. (E.R. I: p.115 [Jail Policy E-03, p.3].) B. The Jail’s Strip Search Policies
As Defendants state, arrestees in San Francisco were initially brought to County Jail 9 which was used as an intake facility to hold arrestees before releasing or housing them. (Defendants’ Petition, p.5.) When first brought to the holding area of County Jail 9, and booked, all arrestees were searched, “either a ‘pat search’ performed in conjunction with a hand held metal detector, and/or a strip search.” (E.R. I: p.14 [Policy].) Numerous categories of arrestees were strip searched at the time of booking without regard to whether they were later classified for housing B including those arrested on charges involving drugs, weapons or violence; those with a criminal history of such charges; those who were parolees or probationers; those who were individually suspected of concealing contraband; as well as others not in the class before the Court. (E.R. I: 115 [Policy E-03 II A, p.2]; E.R. I: 93-94, 106-109 [Arata Depo, 1:20-42;
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43:763:1-65:9.) This booking search was not challenged by Plaintiffs. Arrestees who did not fall into these categories were not strip searched at the
time of booking. But, if they were not released from the intake facility, or if they did not or could not make bail in the time allowed, they were subjected to a strip search when they were Aassigned a custody level by Classification and scheduled for custodial housing.@ (E.R. I: p.115 [Policy II.A.10].) Arrestees were Aclassified@ and strip searched even if they were to be immediately transported directly to Court and never housed at the jail. This strip search occurred before the arrestees were interviewed for release on their own recognizance. (E.R. I: 193, 181 [Humphrey Depo 94:9-18; 66:521].) Indeed, an arrestee could not be considered for release on his or her own recognizance without bail (AO.R.@) until Astripped in.@ (E.R. I: 181-182 [Humphrey Depo 66:15-67:1].)
In fact, Aclassification@ of arrestees could be, and was, routinely advanced in time so that it occurred immediately after booking, if the arrestee declined to Aconsent@ to a strip search when initially received at the jail, under a policy in effect until February 2003. (E.R. I: 138-139 [McConnell Depo 36:13-23; 38:18-39:4]; E.R. I: 200203, 206 [Oaks Depo 31:1-12; Depo Ex 46; 30:18-24; 31:7-14; 47:1-6]; E.R. II: 220221 [Quock Depo 16:1-22; 17:12-25]; E.R. I: 155-157 [Hawkins Depo 14:21-16:15]; E.R. I: 123 [Dyer Depo, Ex. 15].)
The body cavity inspection and strip search of arrestees in Plaintiff class solely because they had been unable to make bail or otherwise gain release (and were therefore Aclassified@ for housing) is the sole search challenged herein. C. The Classification Process
If they were to be housed at the jail before arraignment, arrestees were Aclassified@, that is, assigned a bunk in an appropriate area other than County Jail 9. AClassification@ was done in order to segregate arrestees who were housed separately in accordance with their level of criminal sophistication, criminal history, criminal
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charges, past incarceration behavior, vulnerability, gang affiliation, and other relevant factors such as age and sex. (E.R. I: p.89-92 [Arata Depo 36:18-39:17; 60:18-65:9].)
Defendants claim that the arrestees in the class were, once classified, housed in the “general population” of the jail. But there is no evidence that there is a Ageneral population@ within the San Francisco jail in which arrestees in the class were indiscriminately mingled once they were housed, given the classification process. Significantly, while searches of unspecified areas of the jail found contraband within the jail between 2000 and 2003, there is no evidence that arrestees in the Plaintiff class were ever housed in the areas where those items of contraband were found. (Defendants’ Petition, pp.6-7.)
Once classified and/or housed, arrestees in the class had to be taken before a magistrate for arraignment Awithout unnecessary delay@ under California law, and, in any event, could not be detained for more than two days, excluding Sundays and holidays.3 D. The Smuggling Problem and the Security Justification for the Strip
Search of the Class before the Court While Defendants presented evidence of smuggling at the San Francisco jail, there is not a single shred of evidence which shows that an arrestee within the class before the Court ever tried to smuggle anything through the intake facility of the San Francisco jail at the time of the pre-arraignment classification strip search, or, indeed, at any other time or in any other area of the jail. Nor was there any evidence that the Areasonable suspicion@ standard for strip searching an individual minor offense arrestee before arraignment was inadequate to protect jail security. Neither was there any evidence that the innocuous arrestees in the class were “intermingled” indiscriminately with other arrestees when placed in the “general population”. Indeed, the Defendants’ Statement of Facts demonstrates that there is no security
3 The period could be extended by one day only if Court was not in session until the following day. (Cal. Penal Code § 825.)
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justification for the classification strip search of class members.4 (See, Defendants’
Petition, p.6 fn. 3.)
The instances of discovery of contraband cited by Defendants to show that
arrestees do secrete contraband is misleading because: 1. This evidence does not show a security justification for the strip search of arrestees in the class certified in this case. The arrestees searched in connection with these discoveries were ineligible to join the class and/or the strip search was lawful [E.R. III: 463; 474; 478; 506; 522; 534; 577; 595; 607; 612-614; 617; 621; 632; 633; 634; 636; 637];
2. The discoveries did not involve a visual body cavity search or the inspection of the naked body [E.R. III 464; 525; 583];
3. In many instances Defendants have suppressed the documentation relating to the reason for the strip search (such as the arrest charge or criminal history) or the eligibility of the arrestee for membership in the class; without this relevant documentation, there is no way to know if the discovery of contraband has any bearing on the security justification for the strip search at issue here, and in fact it can be presumed that the missing evidence is unfavorable to Defendants under well established evidentiary presumptions. [E.R. III: 474; 476; 480; 483; 484-5; 486; 487; 497; 498; 499; 502; 517; 521; 525; 526; 532; 535; 544; 545; 547; 548; 551; 553; 558; 560; 563; 565; 567; 571; 576; 579; 582; 584; 586; 591; 604; 609];
4. The discoveries occurred after the discontinuance of the policy challenged here [E.R. III: 611; 612-614; 617; 623; 627; 628; 629; 630].
Defendants also claim that persons “not arrested for crimes involving drugs,
violence or weapons have secreted drugs and other dangerous items in their bodily
orifices”. (Petition, p.7.) The instances of discovery of contraband cited by Defendants
in support of this proposition are similarly irrelevant or unsupportive of this conclusion
4 The evidence has been exhaustively analyzed in Plaintiffs’ Opening Briefs in the course of the appeal and also in Plaintiffs’ Opposition to Defendants’ Request for Judicial Notice. Due to space limitations, the analysis here presents only the barest outline of the lack of evidentiary support for the strip search policy at issue here. The Yorke record did nothing to strengthen Defendants’ case.
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because: 1.

This evidence does not show a security justification for the strip search of arrestees in the class certified in this case: the arrestees searched were ineligible to join the class and/or the strip search was lawful [E.R. III:474; 478; 534; 577; 595; YER 416-19; 435-38; 443-47 ( booking search) 448-49 ( booking search); 454-57; 464-68; 488-89; 490-91];

2. The discoveries did not involve a visual body cavity search or the inspection of the naked body [E.R. III 601-603; YER 439-42];

3. In many instances, the Defendants have suppressed the documentation of the reason for the strip search or the eligibility of the arrestee for membership in the class, which is, of course, readily available to Defendants since they are in possession of arrest and criminal records; as noted above, it can be presumed that the missing evidence is unfavorable to Defendants [E.R. III:532; 609; YER 414-15; 427-28; 439-42; 450-53];

4. The discoveries involved a strip search incident to “safety cell” placement on the basis of combative behavior or some other type of search which is not at issue here. [E.R.III: 527; 612-615].
Finally, with regard to the contention that jail administrators knew that new arrestees were the “most likely smugglers” of contraband, nowhere in the record does any San Francisco jail official opine that the members of this class posed a threat to jail security at the time they were classified or at any other time, and in the absence of any objective support for such an opinion, it is entitled to no weight.
ARGUMENT

A. BELL V. WOLFISH DOES NOT REQUIRE JUDICIAL DEFERENCE TO JAIL OFFICIALS’ JUDGMENT WHEN THEY, AS HERE, EXAGGERATE THEIR RESPONSE TO SECURITY CONSIDERATIONS
Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed. 2d. 447 (l979) is a
seminal case because it set forth the operative principles for analyzing the
constitutionality of jail strip searches under the Fourth Amendment, articulating a

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“balancing test” which requires the Court to balance “the need for the particular search against the invasion of personal rights that the search entails.” Under the circumstances presented there, the Court upheld a policy of strip searching inmates of the jail after contact visits that were afforded to inmates as a privilege or benefit.
The Court had no occasion to distinguish between classes of inmates, since the Plaintiffs apparently argued the validity of the strip search as an “all-or-nothing” proposition. As this circuit observed in Kennedy, “the majority was not focusing on the individual basis for each search; the majority’s constitutional inquiry instead centered around the soundness of the policy as a whole.” (901 F.2d 702.) The consideration of whether a strip search policy could be applied constitutionally to particular categories of jail inmates arose, of necessity, when individual Plaintiffs, as in this case, began to challenge strip search policies applied to them in particular. In applying Bell’s balancing test to determine whether particular categories of arrestees can be lawfully strip searched under a challenged policy, this circuit has not strayed from the principles enunciated in Bell, but has simply applied them to the facts before it.
In Bell, the factors weighed by the Court on the scale, in favor of upholding the strip search policy, included the fact that many of the inmates would be held for months pending trial, were charged with serious offenses, could not qualify for bail under the liberal pretrial release policy, presented an escape risk, had contact visits planned in advance, were not closely supervised, and thus presented a perfect opportunity to obtain contraband. (Bell, 441 U.S at 447, fn28; 559-560.) Deference was deemed due to federal jail administrators because, given the afore mentioned circumstances, there was a reasonable relationship between the strip search and the security objective. (Bell, 441 U.S. at 561.)
Here, the converse is true. Unlike the inmates in Bell, here the members of the class before the Court have not been charged with any criminal offenses or appeared in Court for determination of whether they should be released on bail or O.R; they have
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only been arrested, on the basis an “educated guess”, as the Kennedy Court observed, by police officers. (901 F.2d at 714.) Unlike the inmates in Bell, a population that included those charged with serious and violent offenses, here the Plaintiff class had been arrested for minor, non-violent, non-drug or weapon related charges, were not on parole or probation, and had no criminal history of such offenses. In contract to the inmates in Bell, the members of the class here could be detained for only a few days pending their arraignment, and have never smuggled anything into the jail. There is also no evidence that they were “intermingled” with the general jail population once classified. And unlike contact visits which justified the search in Bell, the arrests which brought the class members to the jail in this case were unplanned events.
In sum, as both the District Court and the panel majority found, the evidence failed to show that “persons eligible for inclusion in the class in this case contributed significantly, or even at all, ” to the problem of smuggling at the jail, Defendants have simply “exaggerated their response” to the risk posed by this class and, by so doing, destroyed the deference otherwise due them. B. THE ELEVENTH CIRCUIT’S DECISION IN POWELL V. BARRETT
IS NEITHER CONTROLLING NOR PERSUASIVE AND FAILS TO FOLLOW BELL V. WOLFISH’S ANALYTICAL APPROACH OF BALANCING SECURITY NEEDS AND PRIVACY INTERESTS
In Powell v. Barrett, 541 F.3d 1298 (11th Cir. 2008), as previously mentioned, the Court ruled on Defendants’ motion to dismiss and held that a “shower-search” of new arrestees did not violate the Fourth Amendment. To reach this decision the Court engaged in no balancing test as required by Bell – apparently finding that the need for the inspection of new arrestees was self-evident. Since there was no record before the Court, we cannot know the purpose of the shower inspection, its security justification, the information that was available to the jail about arrestees, the length of time they were to be housed, or anything else other than that they were booked, inspected after
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showering, and then placed in the general population for the first time. It is clear, however, that the “shower-search” did not involve the visual body
cavity inspection which Defendants conducted here, and which Courts have uniformly found so dehumanizing. Therefore this case does not create an inter-circuit conflict and does not weigh in favor of granting Defendants’ Petition.
The fundamental reasoning of the Powell Court appears to be that the fact that a new arrestee was automatically put in the jail was a per se justification for a strip search. However, this Court has ruled to the contrary several times, aside from this case. See e.g., Thompson v. City of Los Angeles, 885 F.2d 1439, 1447 (9th Cir. 1989) (“Although Thompson… was placed into contact with the general jail population, such a factor by itself cannot justify a strip search”); Giles v. Ackerman, 746 F.2d 614, 617 (9th Cir. 1984) (fact that arrestee may ultimately be intermingled with general jail population does not, by itself, justify strip search as such intermingling is “both limited and avoidable”; factors to be considered in determining whether reasonable suspicion exists to warrant a strip search include “the nature of the offense, an arrestee's appearance and conduct, and the prior arrest record”); Way v. County of Ventura, 2006 WL 1028835, 4, 5 (9th Cir. 2006) (“We cannot see how the charge of being under the influence of a drug necessarily poses a threat of concealing (and thereby using or trafficking) additional drugs in jail during the limited time between booking and bail, or booking and placement in the general population”; “as there is no evidence that security concerns require strip searching all arrestees on all drug offenses before placement in the general jail population, and none that all persons arrested for being under the influence of a drug are likely to have concealed more drugs in a bodily
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cavity, the Sheriff Department’s blanket policy cannot be a proxy for reasonable suspicion”). There is no need to revisit this well established law in this circuit. C. THIS CASE CANNOT BE DISTINGUISHED FROM PREVIOUS
CASES INVALIDATING SIMILAR STRIP SEARCH POLICIES Defendants argue that the contraband smuggling problem faced by the San Francisco jail is particularly acute such that all previous cases invalidating the strip search of arrestees similar to the members of this class are distinguishable. But as demonstrated by the Plaintiffs’ Statement of Facts, rebutting each and every instance that the Defendants rely upon to make their case, and as the panel majority opinion found, this case is not distinguishable from other cases on the crucial issue of whether there is a security justification for applying the jail’s policy of strip searching arrestees who were classified for housing to the members of this class.
CONCLUSION For all of the reasons stated, the petition to grant rehearing or rehearing en banc should be denied. DATED: November 19, 2008 Respectfully submitted,
LAW OFFICE OF MARK E. MERIN and CASPER, MEADOWS, SCHWARTZ & COOK
/s/ - “Mark E. Merin” BY:__________________________________
MARK E. MERIN Attorneys for Plaintiffs/Appellees
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CERTIFICATE OF COMPLIANCE I hereby certify that this brief has been prepared using proportionately doublespaced 14 point Times New Roman typeface. Pursuant to Federal Rule of Appellate Procedure 35(b)(2), this Answer to Petition For Rehearing and Rehearing En Banc does not exceed 15 pages, excluding material not counted under Rule 32. I declare under penalty of perjury that this Certificate of Compliance is true and correct and that this declaration was executed on November 19, 2008. DATED: November 19, 2008 Respectfully submitted,
LAW OFFICE OF MARK E. MERIN and CASPER, MEADOWS, SCHWARTZ & COOK
/s/ - “Mark E. Merin” BY:__________________________________
MARK E. MERIN Attorneys for Plaintiffs/Appellees
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APPELLATE CM/ECF SYSTEM CERTIFICATE OF SERVICE
I, Kari L. Kalista, CCLS, declare: I hereby certify that on November 20, 2008 I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system. I certify that the following party in this case is a registered CM/ECF user and that service will be accomplished by the appellate CM/ECF system.
KRISTA MACNEVIN JEE JONES & MAYER 3777 N. HARBOR BLVD. FULLERTON, CA 92835
(Courtesy copy sent by U.S. Mail on November 20, 2008.)
/s/ - “Kari L. Kalista” Kari L. Kalista, CCLS

Case: 05-17080 11/20/2008 Page: 22 of 23 DktEntry: 6713425
APPELLATE CM/ECF SYSTEM CERTIFICATE OF SERVICE
I, Kari L. Kalista, CCLS, declare: I hereby certify that on November 20, 2008 I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system. Participants in the case who are registered CM/ECF users will be served by the appellate CM/ECF system. I further certify that some of the participants in the case are not registered CM/ECF users. I have mailed the foregoing document by United States Express Mail, Overnight Delivery, with postage prepaid, to the following non-CM/ECF participants:
THE HONORABLE CHARLES R. BREYER UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA 450 GOLDEN GATE AVENUE SAN FRANCISCO CA 94102
ANDREW C. SCHWARTZ CASPER MEADOWS SCHWARTZ, PC STE. 1020 2121 N. CALIFORNIA BLVD. WALNUT CREEK, CA 94596
DENNIS J. HERRERA JOANNE HOEPER ROBERT BONTA SAN FRANCISCO CITY ATTORNEY'S OFFICE FOX PLAZA 6TH FLOOR 1390 MARKET STREET SAN FRANCISCO, CA 94102-5408

Case: 05-17080 11/20/2008 Page: 23 of 23 DktEntry: 6713425
JENNIFER B. HENNING CALIFORNIA STATE ASSOCIATION OF COUNTIES SUITE 101 1100 K STREET SACRAMENTO, CA 95814
MARTIN J. MAYER JONES & MAYER 3777 N. HARBOR BLVD. FULLERTON, CA 92835
/s/ - “Kari L. Kalista” Kari L. Kalista, CCLS

 
 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, v.
CITY AND COUNTY OF SAN FRANCISCO; SAN FRANCISCO COUNTY SHERIFF’S DEPARTMENT; MICHAEL HENNESSEY, Sheriff; SAN FRANCISCO COUNTY SHERIFF’S DEPUTIES,
 Defendants-Appellants.

No. 05-17080
D.C. No. CV-03-01840-CRB

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; LISA GIAMPAOLI,
 Plaintiffs-Appellees, v.
CITY AND COUNTY OF SAN FRANCISCO; SAN FRANCISCO COUNTY SHERIFF’S DEPARTMENT; MICHAEL HENNESSEY, Sheriff; SAN FRANCISCO COUNTY SHERIFF’S DEPUTIES,
 Defendants-Appellants.

No. 06-15566
D.C. No. CV-03-01840-
CRB/EMC
OPINION

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

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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 appellants.
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

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each year. To address a serious problem of contraband smuggling 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 Hennessey’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 judgment 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 introduce 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-

1We 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.”

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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 contains 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 methamphetamine, 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 presence 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 general population from drugs obtained within the prison, and of one detainee who set her clothes on fire with a lighter smuggled into the cell, of another who mutilated himself with staples 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

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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 parties, 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 allegations are quite serious, even absent the dissent’s embellishments.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 opposite 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 searching 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

2There is no doubt, as the Court stated in Bell, that “on occasion a security guard may conduct the search in an abusive fashion,” and “[s]uch an abuse cannot be condoned.” 441 U.S. at 560.

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Galvin, Michael Marron, Laura Timbrook, Salome Mangosing, 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 district 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

3The 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 placement in a ‘safety cell’ at any of the San Francisco County jails.” The district 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 plaintiffs’ summary-judgment papers; they appear in a proposed Second Amended Complaint, which was rejected by the district court.

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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, buttocks 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

4The 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 persons 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 orifices.

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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 policy 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 discovered 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 public 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.

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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 Sheriff’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 Amendment 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 suspicion that they were concealing contraband.”6

In June 2005, plaintiffs moved for partial summary judgment on their claims that San Francisco’s former strip search policy was facially unconstitutional with respect to members

5Plaintiffs also alleged violations of certain provisions of California law that are not at issue in this appeal.
6The 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.

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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 classified for housing was unconstitutional.

On September 22, 2005, the district court issued an order disposing of the summary judgment motions, but subsequently 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 summary 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

7Specifically, on October 21, 2005, San Francisco moved for reconsideration of portions of the district court’s September 22, 2005 order that were unrelated to the court’s denial of qualified immunity for Sheriff Hennessey. 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.

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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 determine 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.

8The court made several other rulings on the parties’ cross motions for summary judgment that are not at issue here.

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Under the circumstances of this case, we also have jurisdiction to review the district court’s grant of partial summary judgment to plaintiffs on the issue of Fourth Amendment liability, because the district court’s holding on liability is “inextricably intertwined with,” as well as “dependent on both the reasoning and results of,” its decision to deny qualified immunity to Sheriff Hennessey. Marks v. Clarke, 102 F.3d 1012, 1018 (9th Cir. 1996).

III

[1] The reasonableness of a search is determined by reference 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, weapons, and other contraband into the general jail population. Because the purpose of the search policy at issue was to further 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 Metropolitan Correctional Center (MCC), a federally operated

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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 practices 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 incarceration, 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 emphasized 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 constitutional rights.” Id. at 546. Third, the Court explained that a central justification for this permissible restriction of constitutional 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

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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 execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional 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 persons 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.

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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 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 (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 institutional needs and objectives, particularly the security concerns, 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 contraband is all too common an occurrence,” the Court upheld the policy even though there had been no long or pervasive history of smuggling at MCC, nor had corrections officials presented 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 contraband 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 documented 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 officials, 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-

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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 constitutional 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 forward 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 reiterated the need to defer to “the informed discretion of corrections 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

9The 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.
10The dissent attempts to distinguish Thompson and Michenfelder on the ground that they involved “claims brought by prisoners already serving

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“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 “limitation or retraction” in order to maintain institutional security, 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 circumstances in which the needs of prison administration implicate constitutional rights”).11

sentences,” and thus “involve[d] legitimate penological interests,” while such “penological interests” do not apply to pre-trial detainees. This distinction 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 sheriff’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 punishment 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 detainees 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.
11The 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 Turner “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.

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[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 institution,” without individualized suspicion, was facially constitutional. The dissent’s characterization of the case to the contrary is counterfactual. See Bell, 441 U.S. at 558. In reaching this conclusion Bell assumed, without deciding, that incarcerated 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 confinement “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 facility] 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-

12Bell did not analyze the place in which the strip searches occurred, but as explained below, the San Francisco policy’s requirement that officers

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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 officials 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 pervasive and serious problem with contraband inside San Francisco’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 history 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 institutional concerns. Id. at 559. While strip searches are invasive and embarrassing, and while this type of security measure “instinctively gives us the most pause,” id. at 558, we must conclude 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 deference to detention officials’ determinations than does the bal-

conduct strip searches in a private place supports a conclusion that the policy was reasonable.

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ancing test in Bell, it is not surprising that our consideration of the Turner factors leads to the same conclusion. San Francisco presented a well-documented record of the contraband problem in its jails, of individuals attempting to smuggle contraband 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 dignity 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 weapons 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 governmental 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 superintendent’s testimony articulating identified problem and his views on how challenged policy addressed them was sufficient to show “that the regulations do, in fact, serve the function identified”).

[6] With respect to Turner’s concern for prison resources, San Francisco produced undisputed evidence that the elimination of the strip search policy would “lead to a higher incidence of illegal contraband in the jails,” and that implementation of more targeted policies “requires supervisory and line staff training” that “takes time away from other

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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 reasonable in a facility with only a single confirmed smuggling incident, 441 U.S. at 559, we cannot say that plaintiffs have met their burden of showing that San Francisco’s strip search policy was “an exaggerated response to prison concerns,“ Turner, 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 perplexing contraband-smuggling problem, and given the deference 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

13The dissent claims San Francisco instituted its policy merely because it would require more time to train its officers and because “it is administratively inconvenient to comply with the Constitution.” It cites Frontiero 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 discriminate, 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 constitutional 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 statements 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 Constitution” misrepresents the record.

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U.S. at 90. Accordingly, a straightforward application of Turner 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 segregated 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

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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 serious 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 demonstrated that its strip search policy had a deterrent effect, reasoning “[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 county’s strip search of a man arrested for grand theft auto because his offense was “sufficiently associated with violence to justify a visual strip search.” 885 F.2d at 1447. Following Giles, we confirmed that strip searches must be based on individualized reasonable suspicion that an arrestee is carrying contraband, 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 individualized 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 officials to articulate their suspicions that a particular person subject 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 Hudson v. Palmer, 468 U.S. at 538 (O’Connor, J., concurring) (stating that in certain contexts, such as the one considered in

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Bell, “the Court has rejected the case-by-case approach to the ‘reasonableness’ inquiry in favor of an approach that determines the reasonableness of contested practices in a categorical 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). Moreover, 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 modify 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 custody 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 primarily designed, sentenced prisoners either awaiting assign-

14The dissent repeats this error in asserting that “persons with no criminal 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.

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ment to a prison facility or assigned here to serve their (usually relatively short) terms, prisoners here on writs to testify or to stand trial, witnesses in protective custody, and persons incarcerated for contempt”). “The MCC was hardly a facility where all of the detainees were ‘awaiting trial on serious 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 policy 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 hallmark of success.” (citing Bell, 441 U.S. at 559)).15

15Thus, the dissent’s argument that Bell requires a “factbound, datadriven inquiry into the categorical reasonableness of the search” mischaracterizes 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 contraband 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.”).

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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 population for the first time, 746 F.2d at 617, as opposed to detainees 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 handcuffs 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

16Although the dissent argues that “[a]s a matter of common sense, contact 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”).

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searches of arrestees at the San Francisco jail, and also indicates that arrestees facing a strip search have jettisoned contraband in the holding cell. This evidence shows that arrestees do, in fact, have both the opportunity and inclination to conceal contraband in private bodily areas before being transported to County Jail No. 9, and that a strip search policy may have a deterrent effect. Because we see no meaningful difference between the institutional concerns raised by contact visits in Bell and those raised by introducing arrestees into the general jail population in this case, we must reject this purported 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 significant smuggling problem and that a blanket policy has a significant 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 application 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-

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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 practice 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 intermingled 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 housing in the general jail or prison population.17 See, e.g., Way v.

17Thus 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 detainees classified to enter the general corrections facility population. The dissent 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.

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County of Ventura, 445 F.3d 1157, 1160 (9th Cir. 2006) (considering 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 recognizance). 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) (analyzing 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 constitutional. 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

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

18The 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 circumstances.” New Jersey v. T.L.O., 469 U.S. 325, 338 (1985) (internal quotation 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 purposes of the Fourth Amendment.” Id. at 338-39. The considerations that informed the Court’s analysis in Safford are not applicable here. The dissent also cites the Supreme Court’s standard for demonstrating the existence 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., Hudson, 468 U.S. at 538 (O’Connor, J., concurring); Bell, 441 U.S. at 560.

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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 corrections 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, notwithstanding 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 necessarily 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 consequences.
There was a time in our constitutional history when one might have argued that the Fourth Amendment requires indi-

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vidualized suspicion for every search and an appropriate constitutional 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 intrusive 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 suspicionless searches for railroad workers, Skinner v. Ry. Labor Executives 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 Treasury 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 certain law enforcement functions or engage in particular extracurricular activities. In a very important sense, such classifications trade the protection afforded by individualized suspicion for protection derived from the fact that the government treats all similarly situated people in precisely the same way.

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Which brings us to the hard question: Do individuals subject 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 materially 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? Compare 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 convicted 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 classification, and that subjectivity can easily transform into elitism. 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

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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 circumstances. 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,

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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 consisting of all those arrested on a charge not involving (a) weapons, (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 (negatively) all four of the criteria—in other words, failure as to any one will take someone out of the class and make him subject 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

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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 OxyContin? 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.

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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. TrinidadAquino, 259 F.3d 1140, 1146 (drunk-driving-resulting-inbodily-injury is a gentle crime); id. at 1147 (Kozinski, J., dissenting) (Bull!). How is a Deputy Sheriff confronted with a suspect arrested on possible charges of vandalism (like plaintiff 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 violence, 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 contraband. 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 dissent 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 posture” be far behind?

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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 discussed 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 Francisco, 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 creation 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

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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 getting 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. Federal 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 wifebeaters 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 dismissed 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

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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 members of the class never, ever conceal contraband is almost certainly 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 countless 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, supposedly, 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

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inmates” and “will lead to a higher incidence of illegal contraband in the jails.” The snippet of quotation excerpted in the dissent, to the effect that the new policy “strikes the right balance between safety and the rights of inmates,” id., comes from a portion of the Dempsey affidavit dealing with a different 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 interference 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 Amendment who must be given preferred treatment by the government. 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 lawyers. 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 conclusion in Part III that the unconstitutionality of San Francis-

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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 stripsearch 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 detainees.

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 unconstitutionality of this policy was clearly established before January 2004.

Accordingly, I concur in the result, but not the reasoning, of the majority opinion.

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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 station, 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 recognizance. 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 regularly 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 demonstration 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 bleeding 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

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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 individuals 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 district 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 empirical evidence that the policy is necessary. Jailors are entitled

1These 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 construe the entire factual record in the light most favorable to the nonmoving 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.

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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 concealing 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 jurisprudence, giving jailors the unfettered right to conduct mandatory, routine, suspicionless body cavity searches on any citizen who may be arrested for minor offenses, such as violating a leash law or a traffic code, and who pose no credible risk for smuggling contraband into the jail. Under its reconfigured regime, the majority discards Bell’s requirement to balance 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 argument 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

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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” contraband 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 evidence 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 evidence 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 constitutional protections and to bless mandatory routine body cavity 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, mandatory strip search policies flatly contradict the balancing of

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interests that the Supreme Court has instructed us to undertake. 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 provides 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 Fourteenth 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 limitations, and continuing to date, were arrested on any charge not involving weapons, controlled substances, or a felony 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 blan-

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ket visual body cavity strip search by defendants before arraignment at a San Francisco County Jail facility without any individualized reasonable suspicion that they were concealing contraband. This class also includes 1) all arrestees who were subjected 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 injunction). The class was further limited by the district court’s February 23, 2006 order, which held that San Francisco’s policy of strip searching arrestees on the basis of their criminal history 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 arraignment 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, suspicionless 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 traditional standards of reasonableness ‘by assessing, on the one

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hand, the degree to which it intrudes upon an individual’s privacy 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 context 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 recognized 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 balancing of the need for the particular search against the invasion of personal rights that the search entails,” Bell, 441 U.S.

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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 conducted.” (citing Terry, 392 U.S. at 18 n.15)).

The strip searches in this case are the most serious of personal invasions. “The intrusiveness of a body-cavity search cannot be overstated. Strip searches involving the visual exploration of body cavities [are] dehumanizing and humiliating.” Kennedy v. Los Angeles Police Dep’t, 901 F.2d 702, 711 (9th Cir. 1990), abrogated on other grounds by Hunter v. Bryant, 502 U.S. 224 (1991) (per curiam); see also Bell, 441 U.S. at 576-77 (Marshall, J., dissenting) (“In my view, the bodycavity 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 conducted 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

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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 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 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.

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 categorical 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 individual 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 unreasonable without a reasonable suspicion by the authorities that either of the twin dangers of concealing weapons or contraband existed.”); Logan v. Shealy, 660 F.2d 1007, 1013 (4th Cir. 1981) (“An indiscriminate strip search policy routinely

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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 contraband, 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 subjected all felony arrestees to a visual body cavity search. Kennedy, 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 seriousness 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 institutional security,” but concluding that “a blanket policy is [not]

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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 reasonableness 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” justifies the need for a search).

2The 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 contraband. In Safford Unified Sch. Dist. #1 v. Redding, 129 S. Ct. 2633 (2009), the Court held that a strip search of a schoolgirl was unconstitutional 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 categorically extreme intrusiveness of a search” requires “some justification in suspected facts” beyond “general background possibilities”); id. at 264243 (“[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.”).
3The 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 reasonable suspicion existed that they as a category of offenders or individually might possess weapons or contraband, under the balancing test of Wolfish we find such searches unreasonable and the policy to be in violation 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.

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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 intrusion [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 complicated than that, I think.

The district court understood that, under Bell and our precedent, strip searches must be justified by individualized reasonable 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 policy could not be justified by either reasonable suspicion or categorical reasonableness. The district court was entirely correct.

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 correspondence. 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 controls 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

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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.”); Powell 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 decision in Bell.”).

Further, the underpinnings of Turner are significantly different from those considered in Bell. Turner involved incarceration 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). “ ‘Penological’ means relating to the theory and practice of prison management and criminal rehabilitation.” Mauro v. Arpaio, 188 F.3d 1054, 1068 (9th Cir. 1999) (en banc) (Kleinfeld, J., dissenting). “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

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is quite different from the analysis of whether a particular prison regulation that impinges on inmates’ constitutional rights is “reasonably related to legitimate penological interests.” 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. Viewing 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 classification for housing in the general population. Thus, San

4The majority cites Ninth Circuit cases for the proposition that the Turner standard already has been incorporated into Bell cases: Thompson v. Souza, 111 F.3d 694, 699-700 (9th Cir. 1997); and Michenfelder v. Sumner, 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 interests, and therefore Turner. They do not provide any support for applying Turner’s rationale to cases involving pre-trial detainees in the circumstance described in Bell and the instant case.

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Francisco was required to demonstrate at least categorical reasonableness.

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 warranted strip searching.

San Francisco could not meet its burden. Of all the incidents of discovered contraband documented by Defendants and presented to the district court, not one documents a single uncontroverted instance of a class member possessing contraband 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 certified 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

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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 individualized 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 repeatedly told us so. See Frontiero v. Richardson, 411 U.S. 677, 690 (1973) (“[A]lthough efficacious administration of governmental programs is not without some importance, ‘the Constitution 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 suspect that arrestees falling into the class of plaintiffs certified in this case were smuggling contraband. Thus, San Francis-

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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 contraband 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 evidence 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 contraband 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 thorough searches, contact visits result in the smuggling of contraband, 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 presence of contraband in its cells. However, of approximately

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150,000 searches over a three-year period in the intake facility, 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 smuggling, 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 Manganaro 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 correctional 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 cognizance of valid constitutional claims whether arising in a federal 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.

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Chapman, 452 U.S. 337, 362 (1981) (Brennan, J., concurring). 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 “terrifying.” 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 consented, 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

5See 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 occurring during strip searches).

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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 officers. My genital and rectal areas were inspected.

During the search, Bull’s “face was smashed against the concrete” 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 consent 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,

6The 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. Nevertheless, 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 incarceration, 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 anyway. According to an officer involved in Bull’s detention, refusal to sign a consent form constituted “bizarre” behavior fitting the criterion of placement in a safety cell because “it impeded the intake process.” In her affidavit, 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 consent to a second body cavity search. She objected, and was forcibly bodycavity 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.

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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 Ranleau 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 bleeding 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 dehumanize those who are subject to them, and those performing routine searches in volume become desensitized to the invasion 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 justification. We have, in the past, afforded proper deference when

7See 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).

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presented with evidence of legitimate security concerns. However, San Francisco not only fails to offer any evidence that arrestees belonging to the class of plaintiffs smuggled contraband into the jail, it does not even offer a plausible, hypothetical justification for its policy, aside from minor bureaucratic inconvenience. Proper deference cannot be founded on a complete 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 former mandatory body cavity search policy cannot pass constitutional 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 application that a search be justified as reasonable under the circumstances. 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

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F.3d 1, 7 (1st Cir. 1997). The Swain court found unconstitutional 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 Wolfish, 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 validate 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 “security 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 circumstances or prior offenses suggesting the possibility of conceal-

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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 administrative ease in attending to security considerations.”), cert. denied, 455 U.S. 942 (1982).

The majority cites with approval the recent Eleventh Circuit 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 mandated searches far less intrusive than the ones here. Under the policy in Powell, arrestees were required to undress and proceed 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, requiring less justification for those searches. If Powell has any persuasive 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 interpretation of Bell falls far outside the existing jurisprudence.

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The conclusion is clear: the City’s policy of routine, mandatory, 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 conducting 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 consistently required consideration of individual factors, such as arrest charges, criminal history, and suspicious behavior, to justify strip searches of pre-arraignment arrestees. As the district court in this case rightly observed: “It was . . . abundantly clear after Thompson that placement in the general jail population 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

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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 appearance 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 similar 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 Francisco jails generally; it does not demonstrate that persons eligible 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 violated by the policy were not clearly established.8 Sheriff Hennessey is not entitled to qualified immunity.

8That 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

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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 population, 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 balancing 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 Bernie 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.

 
 (Slip Opinion)

OCTOBER TERM, 2011

1

Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES

Syllabus
FLORENCE v. BOARD OF CHOSEN FREEHOLDERS OF COUNTY OF BURLINGTON ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 10–945. Argued October 12, 2011—Decided April 2, 2012
Petitioner was arrested during a traffic stop by a New Jersey state trooper who checked a statewide computer database and found a bench warrant issued for petitioner’s arrest after he failed to appear at a hearing to enforce a fine. He was initially detained in the Burlington County Detention Center and later in the Essex County Correctional Facility, but was released once it was determined that the fine had been paid. At the first jail, petitioner, like every incoming detainee, had to shower with a delousing agent and was checked for scars, marks, gang tattoos, and contraband as he disrobed. Petitioner claims that he also had to open his mouth, lift his tongue, hold out his arms, turn around, and lift his genitals. At the second jail, petitioner, like other arriving detainees, had to remove his clothing while an officer looked for body markings, wounds, and contraband; had an officer look at his ears, nose, mouth, hair, scalp, fingers, hands, armpits, and other body openings; had a mandatory shower; and had his clothes examined. Petitioner claims that he was also required to lift his genitals, turn around, and cough while squatting. He filed a 42 U. S. C. §1983 action in the Federal District Court against the government entities that ran the jails and other defendants, alleging Fourth and Fourteenth Amendment violations, and arguing that persons arrested for minor offenses cannot be subjected to invasive searches unless prison officials have reason to suspect concealment of weapons, drugs, or other contraband. The court granted him summary judgment, ruling that “strip-searching” nonindictable offenders without reasonable suspicion violates the Fourth Amendment. The Third Circuit reversed.
Held: The judgment is affirmed.

2 FLORENCE v. BOARD OF CHOSEN FREEHOLDERS OF COUNTY OF BURLINGTON
Syllabus
621 F. 3d 296, affirmed. JUSTICE KENNEDY delivered the opinion of the Court, except as to
Part IV, concluding that the search procedures at the county jails struck a reasonable balance between inmate privacy and the needs of the institutions, and thus the Fourth and Fourteenth Amendments do not require adoption of the framework and rules petitioner proposes. Pp. 5−18, 19.
(a) Maintaining safety and order at detention centers requires the expertise of correctional officials, who must have substantial discretion to devise reasonable solutions to problems. A regulation impinging on an inmate’s constitutional rights must be upheld “if it is reasonably related to legitimate penological interests.” Turner v. Safley, 482 U. S. 78, 89. This Court, in Bell v. Wolfish, 441 U. S. 520, 558, upheld a rule requiring pretrial detainees in federal correctional 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[s],” deferring to the judgment of correctional officials that the inspections served not only to discover but also to deter the smuggling of weapons, drugs, and other prohibited items. In Block v. Rutherford, 468 U. S. 576, 586−587, the Court upheld a general ban on contact visits in a county jail, noting the smuggling threat posed by such visits and the difficulty of carving out exceptions for certain detainees. The Court, in Hudson v. Palmer, 468 U. S. 517, 522−523, also recognized that deterring the possession of contraband depends in part on the ability to conduct searches without predictable exceptions when it upheld the constitutionality of random searches of inmate lockers and cells even without suspicion that an inmate is concealing a prohibited item. These cases establish that correctional officials must be permitted to devise reasonable search policies to detect and deter the possession of contraband in their facilities, and that “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,” Block, supra, at 584–585.
Persons arrested for minor offenses may be among the detainees to be processed at jails. See Atwater v. Lago Vista, 532 U. S. 318, 354. Pp. 5−9.
(b) The question here is whether undoubted security imperatives involved in jail supervision override the assertion that some detainees must be exempt from the invasive search procedures at issue absent reasonable suspicion of a concealed weapon or other contraband. Correctional officials have a significant interest in conducting a thorough search as a standard part of the intake process. The admission of new inmates creates risks for staff, the existing detainee popula-

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Syllabus
tion, and the new detainees themselves. Officials therefore must screen for contagious infections and for wounds or injuries requiring immediate medical attention. It may be difficult to identify and treat medical problems until detainees remove their clothes for a visual inspection. Jails and prisons also face potential gang violence, giving them reasonable justification for a visual inspection of detainees for signs of gang affiliation as part of the intake process. Additionally, correctional officials have to detect weapons, drugs, alcohol, and other prohibited items new detainees may possess. Drugs can make inmates aggressive toward officers or each other, and drug trading can lead to violent confrontations. Contraband has value in a jail’s culture and underground economy, and competition for scarce goods can lead to violence, extortion, and disorder. Pp. 9−13.
(c) Petitioner’s proposal―that new detainees not arrested for serious crimes or for offenses involving weapons or drugs be exempt from invasive searches unless they give officers a particular reason to suspect them of hiding contraband―is unworkable. The seriousness of an offense is a poor predictor of who has contraband, and it would be difficult to determine whether individual detainees fall within the proposed exemption. Even persons arrested for a minor offense may be coerced by others into concealing contraband. Exempting people arrested for minor offenses from a standard search protocol thus may put them at greater risk and result in more contraband being brought into the detention facility.
It also may be difficult to classify inmates by their current and prior offenses before the intake search. Jail officials know little at the outset about an arrestee, who may be carrying a false ID or lie about his identity. The officers conducting an initial search often do not have access to criminal history records. And those records can be inaccurate or incomplete. Even with accurate information, officers would encounter serious implementation difficulties. They would be required to determine quickly whether any underlying offenses were serious enough to authorize the more invasive search protocol. Other possible classifications based on characteristics of individual detainees also might prove to be unworkable or even give rise to charges of discriminatory application. To avoid liability, officers might be inclined not to conduct a thorough search in any close case, thus creating unnecessary risk for the entire jail population. While the restrictions petitioner suggests would limit the intrusion on the privacy of some detainees, it would be at the risk of increased danger to everyone in the facility, including the less serious offenders. The Fourth and Fourteenth Amendments do not require adoption of the proposed framework. Pp. 13−18, 19.

4 FLORENCE v. BOARD OF CHOSEN FREEHOLDERS OF COUNTY OF BURLINGTON Syllabus
KENNEDY, J., delivered the opinion of the Court, except as to Part IV. ROBERTS, C. J., and SCALIA and ALITO, JJ., joined that opinion in full, and THOMAS, J., joined as to all but Part IV. ROBERTS, C. J., and ALITO, J., filed concurring opinions. BREYER, J., filed a dissenting opinion, in which GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined.

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1

Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 10–945
_________________
ALBERT W. FLORENCE, PETITIONER v. BOARD OF CHOSEN FREEHOLDERS OF THE COUNTY OF BURLINGTON ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
[April 2, 2012]
JUSTICE KENNEDY delivered the opinion of the Court, except as to Part IV.*
Correctional officials have a legitimate interest, indeed a responsibility, to ensure that jails are not made less secure by reason of what new detainees may carry in on their bodies. Facility personnel, other inmates, and the new detainee himself or herself may be in danger if these threats are introduced into the jail population. This case presents the question of what rules, or limitations, the Constitution imposes on searches of arrested persons who are to be held in jail while their cases are being processed. The term “jail” is used here in a broad sense to include prisons and other detention facilities. The specific measures being challenged will be described in more detail; but, in broad terms, the controversy concerns whether every detainee who will be admitted to the general population may be required to undergo a close visual inspection while undressed.
The case turns in part on the extent to which this Court
——————
* JUSTICE THOMAS joins all but Part IV of this opinion.

2 FLORENCE v. BOARD OF CHOSEN FREEHOLDERS OF COUNTY OF BURLINGTON
Opinion of the Court
has sufficient expertise and information in the record to mandate, under the Constitution, the specific restrictions and limitations sought by those who challenge the visual search procedures at issue. In addressing this type of constitutional claim courts must defer to the judgment of correctional officials unless the record contains substantial evidence showing their policies are an unnecessary or unjustified response to problems of jail security. That necessary showing has not been made in this case.
I
In 1998, seven years before the incidents at issue, petitioner Albert Florence was arrested after fleeing from police officers in Essex County, New Jersey. He was charged with obstruction of justice and use of a deadly weapon. Petitioner entered a plea of guilty to two lesser offenses and was sentenced to pay a fine in monthly installments. In 2003, after he fell behind on his payments and failed to appear at an enforcement hearing, a bench warrant was issued for his arrest. He paid the outstanding balance less than a week later; but, for some unexplained reason, the warrant remained in a statewide computer database.
Two years later, in Burlington County, New Jersey, petitioner and his wife were stopped in their automobile by a state trooper. Based on the outstanding warrant in the computer system, the officer arrested petitioner and took him to the Burlington County Detention Center. He was held there for six days and then was transferred to the Essex County Correctional Facility. It is not the arrest or confinement but the search process at each jail that gives rise to the claims before the Court.
Burlington County jail procedures required every arrestee to shower with a delousing agent. Officers would check arrestees for scars, marks, gang tattoos, and contraband as they disrobed. App. to Pet. for Cert. 53a–56a.

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Opinion of the Court
Petitioner claims he was also instructed to open his mouth, lift his tongue, hold out his arms, turn around, and lift his genitals. (It is not clear whether this last step was part of the normal practice. See ibid.) Petitioner shared a cell with at least one other person and interacted with other inmates following his admission to the jail. Tr. of Oral Arg. 17.
The Essex County Correctional Facility, where petitioner was taken after six days, is the largest county jail in New Jersey. App. 70a. It admits more than 25,000 inmates each year and houses about 1,000 gang members at any given time. When petitioner was transferred there, all arriving detainees passed through a metal detector and waited in a group holding cell for a more thorough search. When they left the holding cell, they were instructed to remove their clothing while an officer looked for body markings, wounds, and contraband. Apparently without touching the detainees, an officer looked at their ears, nose, mouth, hair, scalp, fingers, hands, arms, armpits, and other body openings. Id., at 57a–59a; App. to Pet. for Cert. 137a–144a. This policy applied regardless of the circumstances of the arrest, the suspected offense, or the detainee’s behavior, demeanor, or criminal history. Petitioner alleges he was required to lift his genitals, turn around, and cough in a squatting position as part of the process. After a mandatory shower, during which his clothes were inspected, petitioner was admitted to the facility. App. 3a–4a, 52a, 258a. He was released the next day, when the charges against him were dismissed.
Petitioner sued the governmental entities that operated the jails, one of the wardens, and certain other defendants. The suit was commenced in the United States District Court for the District of New Jersey. Seeking relief under 42 U. S. C. §1983 for violations of his Fourth and Fourteenth Amendment rights, petitioner maintained that persons arrested for a minor offense could not be required

4 FLORENCE v. BOARD OF CHOSEN FREEHOLDERS OF COUNTY OF BURLINGTON
Opinion of the Court
to remove their clothing and expose the most private areas of their bodies to close visual inspection as a routine part of the intake process. Rather, he contended, officials could conduct this kind of search only if they had reason to suspect a particular inmate of concealing a weapon, drugs, or other contraband. The District Court certified a class of individuals who were charged with a nonindictable offense under New Jersey law, processed at either the Burlington County or Essex County jail, and directed to strip naked even though an officer had not articulated any reasonable suspicion they were concealing contraband.
After discovery, the court granted petitioner’s motion for summary judgment on the unlawful search claim. It concluded that any policy of “strip searching” nonindictable offenders without reasonable suspicion violated the Fourth Amendment. A divided panel of the United States Court of Appeals for the Third Circuit reversed, holding that the procedures described by the District Court struck a reasonable balance between inmate privacy and the security needs of the two jails. 621 F. 3d 296 (2010). The case proceeds on the understanding that the officers searched detainees prior to their admission to the general population, as the Court of Appeals seems to have assumed. See id., at 298, 311. Petitioner has not argued this factual premise is incorrect.
The opinions in earlier proceedings, the briefs on file, and some cases of this Court refer to a “strip search.” The term is imprecise. It may refer simply to the instruction to remove clothing while an officer observes from a distance of, say, five feet or more; it may mean a visual inspection from a closer, more uncomfortable distance; it may include directing detainees to shake their heads or to run their hands through their hair to dislodge what might be hidden there; or it may involve instructions to raise arms, to display foot insteps, to expose the back of the ears, to move or spread the buttocks or genital areas, or to

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Opinion of the Court
cough in a squatting position. In the instant case, the term does not include any touching of unclothed areas by the inspecting officer. There are no allegations that the detainees here were touched in any way as part of the searches.
The Federal Courts of Appeals have come to differing conclusions as to whether the Fourth Amendment requires correctional officials to exempt some detainees who will be admitted to a jail’s general population from the searches here at issue. This Court granted certiorari to address the question. 563 U. S. ___ (2011).
II
The difficulties of operating a detention center must not be underestimated by the courts. Turner v. Safley, 482 U. S. 78, 84–85 (1987). Jails (in the stricter sense of the term, excluding prison facilities) admit more than 13 million inmates a year. See, e.g., Dept. of Justice, Bureau of Justice Statistics, T. Minton, Jail Inmates at Midyear 2010—Statistical Tables 2 (2011). The largest facilities process hundreds of people every day; smaller jails may be crowded on weekend nights, after a large police operation, or because of detainees arriving from other jurisdictions. Maintaining safety and order at these institutions requires the expertise of correctional officials, who must have substantial discretion to devise reasonable solutions to the problems they face. The Court has confirmed the importance of deference to correctional officials and explained that a regulation impinging on an inmate’s constitutional rights must be upheld “if it is reasonably related to legitimate penological interests.” Turner, supra, at 89; see Overton v. Bazzetta, 539 U. S. 126, 131–132 (2003). But see Johnson v. California, 543 U. S. 499, 510–511 (2005) (applying strict scrutiny to racial classifications).
The Court’s opinion in Bell v. Wolfish, 441 U. S. 520 (1979), is the starting point for understanding how this

6 FLORENCE v. BOARD OF CHOSEN FREEHOLDERS OF COUNTY OF BURLINGTON
Opinion of the Court
framework applies to Fourth Amendment challenges. That case addressed a rule requiring pretrial detainees in any correctional facility run by the Federal Bureau of Prisons “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.” Id., at 558. Inmates at the federal Metropolitan Correctional Center in New York City argued there was no security justification for these searches. Officers searched guests before they entered the visiting room, and the inmates were under constant surveillance during the visit. Id., at 577–578 (Marshall, J., dissenting). There had been but one instance in which an inmate attempted to sneak contraband back into the facility. See id., at 559 (majority opinion). The Court nonetheless upheld the search policy. It deferred to the judgment of correctional officials that the inspections served not only to discover but also to deter the smuggling of weapons, drugs, and other prohibited items inside. Id., at 558. The Court explained that there is no mechanical way to determine whether intrusions on an inmate’s privacy are reasonable. Id., at 559. The need for a particular search must be balanced against the resulting invasion of personal rights. Ibid.
Policies designed to keep contraband out of jails and prisons have been upheld in cases decided since Bell. In Block v. Rutherford, 468 U. S. 576 (1984), for example, the Court concluded that the Los Angeles County Jail could ban all contact visits because of the threat they posed:
“They open the institution to the introduction of drugs, weapons, and other contraband. Visitors can easily conceal guns, knives, drugs, or other contraband in countless ways and pass them to an inmate unnoticed by even the most vigilant observers. And these items can readily be slipped from the clothing of an innocent child, or transferred by other visitors

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Opinion of the Court
permitted close contact with inmates.” Id., at 586.
There were “many justifications” for imposing a general ban rather than trying to carve out exceptions for certain detainees. Id., at 587. Among other problems, it would be “a difficult if not impossible task” to identify “inmates who have propensities for violence, escape, or drug smuggling.” Ibid. This was made “even more difficult by the brevity of detention and the constantly changing nature of the inmate population.” Ibid.
The Court has also recognized that deterring the possession of contraband depends in part on the ability to conduct searches without predictable exceptions. In Hudson v. Palmer, 468 U. S. 517 (1984), it addressed the question of whether prison officials could perform random searches of inmate lockers and cells even without reason to suspect a particular individual of concealing a prohibited item. Id., at 522–523. The Court upheld the constitutionality of the practice, recognizing that “ ‘[f]or one to advocate that prison searches must be conducted only pursuant to an enunciated general policy or when suspicion is directed at a particular inmate is to ignore the realities of prison operation.’ ” Id., at 529 (quoting Marrero v. Commonwealth, 222 Va. 754, 757, 284 S. E. 2d 809, 811 (1981)). Inmates would adapt to any pattern or loopholes they discovered in the search protocol and then undermine the security of the institution. 468 U. S., at 529.
These cases establish that correctional officials must be permitted to devise reasonable search policies to detect and deter the possession of contraband in their facilities. See Bell, 441 U. S., at 546 (“[M]aintaining institutional security and preserving internal order and discipline are essential goals that may require limitation or retraction of retained constitutional rights of both convicted prisoners and pretrial detainees”). The task of determining whether a policy is reasonably related to legitimate security inter-

8 FLORENCE v. BOARD OF CHOSEN FREEHOLDERS OF COUNTY OF BURLINGTON
Opinion of the Court
ests is “peculiarly within the province and professional expertise of corrections officials.” Id., at 548. This Court has repeated the admonition that, “ ‘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.’ ” Block, supra, at 584–585; Bell, supra, at 548.
In many jails officials seek to improve security by requiring some kind of strip search of everyone who is to be detained. These procedures have been used in different places throughout the country, from Cranston, Rhode Island, to Sapulpa, Oklahoma, to Idaho Falls, Idaho. See Roberts v. Rhode Island, 239 F. 3d 107, 108–109 (CA1 2001); Chapman v. Nichols, 989 F. 2d 393, 394 (CA10 1993); Giles v. Ackerman, 746 F. 2d 614, 615 (CA9 1984) (per curiam); see also, e.g., Bull v. City and Cty. of San Francisco, 595 F. 3d 964 (CA9 2010) (en banc) (San Francisco, California); Powell v. Barrett, 541 F. 3d 1298 (CA11 2008) (en banc) (Fulton Cty., Ga.); Masters v. Crouch, 872 F. 2d 1248, 1251 (CA6 1989) (Jefferson Cty., Ky.); Weber v. Dell, 804 F. 2d 796, 797–798 (CA2 1986) (Monroe Cty., N. Y.); Stewart v. Lubbock Cty., 767 F. 2d 153, 154 (CA5 1985) (Lubbock Cty., Tex.).
Persons arrested for minor offenses may be among the detainees processed at these facilities. This is, in part, a consequence of the exercise of state authority that was the subject of Atwater v. Lago Vista, 532 U. S. 318 (2001). Atwater addressed the perhaps more fundamental question of who may be deprived of liberty and taken to jail in the first place. The case involved a woman who was arrested after a police officer noticed neither she nor her children were wearing their seatbelts. The arrestee argued the Fourth Amendment prohibited her custodial arrest without a warrant when an offense could not result in jail time and there was no compelling need for immedi-

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Opinion of the Court
ate detention. Id., at 346. The Court held that a Fourth Amendment restriction on this power would put officers in an “almost impossible spot.” Id., at 350. Their ability to arrest a suspect would depend in some cases on the precise weight of drugs in his pocket, whether he was a repeat offender, and the scope of what counted as a compelling need to detain someone. Id., at 348–349. The Court rejected the proposition that the Fourth Amendment barred custodial arrests in a set of these cases as a matter of constitutional law. It ruled, based on established principles, that officers may make an arrest based upon probable cause to believe the person has committed a criminal offense in their presence. See id., at 354. The Court stated that “a responsible Fourth Amendment balance is not well served by standards requiring sensitive, case-bycase determinations of government need, lest every discretionary judgment in the field be converted into an occasion for constitutional review.” Id., at 347.
Atwater did not address whether the Constitution imposes special restrictions on the searches of offenders suspected of committing minor offenses once they are taken to jail. Some Federal Courts of Appeals have held that corrections officials may not conduct a strip search of these detainees, even if no touching is involved, absent reasonable suspicion of concealed contraband. 621 F. 3d, at 303–304, and n. 4. The Courts of Appeals to address this issue in the last decade, however, have come to the opposite conclusion. See 621 F. 3d 296 (case below); Bame v. Dillard, 637 F. 3d 380 (CADC 2011); Powell, supra; Bull, supra. The current case is set against this precedent and governed by the principles announced in Turner and Bell.
III
The question here is whether undoubted security imperatives involved in jail supervision override the asser-

10 FLORENCE v. BOARD OF CHOSEN FREEHOLDERS OF COUNTY OF BURLINGTON
Opinion of the Court
tion that some detainees must be exempt from the more invasive search procedures at issue absent reasonable suspicion of a concealed weapon or other contraband. The Court has held that deference must be given to the officials in charge of the jail unless there is “substantial evidence” demonstrating their response to the situation is exaggerated. Block, 468 U. S., at 584–585 (internal quotation marks omitted). Petitioner has not met this standard, and the record provides full justifications for the procedures used.
A
Correctional officials have a significant interest in conducting a thorough search as a standard part of the intake process. The admission of inmates creates numerous risks for facility staff, for the existing detainee population, and for a new detainee himself or herself. The danger of introducing lice or contagious infections, for example, is well documented. See, e.g., Deger & Quick, The Enduring Menace of MRSA: Incidence, Treatment, and Prevention in a County Jail, 15 J. Correctional Health Care 174, 174– 175, 177–178 (2009); Bick, Infection Control in Jails and Prisons, 45 Healthcare Epidemiology 1047, 1049 (2007). The Federal Bureau of Prisons recommends that staff screen new detainees for these conditions. See Clinical Practice Guidelines, Management of Methicillin-Resistant Staphylococcus aureus (MRSA) Infections 2 (2011); Clinical Practice Guidelines, Lice and Scabies Protocol 1 (2011). Persons just arrested may have wounds or other injuries requiring immediate medical attention. It may be difficult to identify and treat these problems until detainees remove their clothes for a visual inspection. See Prison and Jail Administration: Practice and Theory 142 (P. Carlson & G. Garrett eds., 2d ed. 2008) (hereinafter Carlson & Garrett).
Jails and prisons also face grave threats posed by the

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Opinion of the Court
increasing number of gang members who go through the intake process. See Brief for Policemen’s Benevolent Association, Local 249, et al. as Amici Curiae 14 (hereinafter PBA Brief); New Jersey Comm’n of Investigation, Gangland Behind Bars: How and Why Organized Criminal Street Gangs Thrive in New Jersey’s Prisons . . . And What Can Be Done About It 10–11 (2009). “Gang rivalries spawn a climate of tension, violence, and coercion.” Carlson & Garrett 462. The groups recruit new members by force, engage in assaults against staff, and give other inmates a reason to arm themselves. Ibid. Fights among feuding gangs can be deadly, and the officers who must maintain order are put in harm’s way. PBA Brief 17. These considerations provide a reasonable basis to justify a visual inspection for certain tattoos and other signs of gang affiliation as part of the intake process. The identification and isolation of gang members before they are admitted protects everyone in the facility. Cf. Fraise v. Terhune, 283 F. 3d 506, 509–510 (CA3 2002) (Alito, J.) (describing a statewide policy authorizing the identification and isolation of gang members in prison).
Detecting contraband concealed by new detainees, furthermore, is a most serious responsibility. Weapons, drugs, and alcohol all disrupt the safe operation of a jail. Cf. Hudson, 468 U. S., at 528 (recognizing “the constant fight against the proliferation of knives and guns, illicit drugs, and other contraband”). Correctional officers have had to confront arrestees concealing knives, scissors, razor blades, glass shards, and other prohibited items on their person, including in their body cavities. See Bull, 595 F. 3d, at 967, 969; Brief for New Jersey County Jail Wardens Association as Amicus Curiae 17–18 (hereinafter New Jersey Wardens Brief). They have also found crack, heroin, and marijuana. Brief for City and County of San Francisco et al. as Amici Curiae 9–11 (hereinafter San Francisco Brief). The use of drugs can embolden inmates

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Opinion of the Court
in aggression toward officers or each other; and, even apart from their use, the trade in these substances can lead to violent confrontations. See PBA Brief 11.
There are many other kinds of contraband. The textbook definition of the term covers any unauthorized item. See Prisons: Today and Tomorrow 237 (J. Pollock ed. 1997) (“Contraband is any item that is possessed in violation of prison rules. Contraband obviously includes drugs or weapons, but it can also be money, cigarettes, or even some types of clothing”). Everyday items can undermine security if introduced into a detention facility:
“Lighters and matches are fire and arson risks or potential weapons. Cell phones are used to orchestrate violence and criminality both within and without jailhouse walls. Pills and medications enhance suicide risks. Chewing gum can block locking devices; hairpins can open handcuffs; wigs can conceal drugs and weapons.” New Jersey Wardens Brief 8–9.
Something as simple as an overlooked pen can pose a significant danger. Inmates commit more than 10,000 assaults on correctional staff every year and many more among themselves. See Dept. of Justice, Bureau of Justice Statistics, J. Stephan & J. Karberg, Census of State and Federal Correctional Facilities, 2000, p. v (2003).
Contraband creates additional problems because scarce items, including currency, have value in a jail’s culture and underground economy. Correctional officials inform us “[t]he competition . . . for such goods begets violence, extortion, and disorder.” New Jersey Wardens Brief 2. Gangs exacerbate the problem. They “orchestrate thefts, commit assaults, and approach inmates in packs to take the contraband from the weak.” Id., at 9–10. This puts the entire facility, including detainees being held for a brief term for a minor offense, at risk. Gangs do coerce inmates who have access to the outside world, such as

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people serving their time on the weekends, to sneak things into the jail. Id., at 10; see, e.g., Pugmire, Vegas Suspect Has Term to Serve, Los Angeles Times, Sept. 23, 2005, p. B1 (“Weekend-only jail sentences are a common punishment for people convicted of nonviolent drug crimes . . .”). These inmates, who might be thought to pose the least risk, have been caught smuggling prohibited items into jail. See New Jersey Wardens Brief 10. Concealing contraband often takes little time and effort. It might be done as an officer approaches a suspect’s car or during a brief commotion in a group holding cell. Something small might be tucked or taped under an armpit, behind an ear, between the buttocks, in the instep of a foot, or inside the mouth or some other body cavity.
It is not surprising that correctional officials have sought to perform thorough searches at intake for disease, gang affiliation, and contraband. Jails are often crowded, unsanitary, and dangerous places. There is a substantial interest in preventing any new inmate, either of his own will or as a result of coercion, from putting all who live or work at these institutions at even greater risk when he is admitted to the general population.
B
Petitioner acknowledges that correctional officials must be allowed to conduct an effective search during the intake process and that this will require at least some detainees to lift their genitals or cough in a squatting position. These procedures, similar to the ones upheld in Bell, are designed to uncover contraband that can go undetected by a patdown, metal detector, and other less invasive searches. See Brief for United States as Amicus Curiae 23 (hereinafter United States Brief); New Jersey Wardens Brief 19, n. 6. Petitioner maintains there is little benefit to conducting these more invasive steps on a new detainee who has not been arrested for a serious crime or for any

14 FLORENCE v. BOARD OF CHOSEN FREEHOLDERS OF COUNTY OF BURLINGTON
Opinion of the Court
offense involving a weapon or drugs. In his view these detainees should be exempt from this process unless they give officers a particular reason to suspect them of hiding contraband. It is reasonable, however, for correctional officials to conclude this standard would be unworkable. The record provides evidence that the seriousness of an offense is a poor predictor of who has contraband and that it would be difficult in practice to determine whether individual detainees fall within the proposed exemption.
1
People detained for minor offenses can turn out to be the most devious and dangerous criminals. Cf. Clements v. Logan, 454 U. S. 1304, 1305 (1981) (Rehnquist, J., in chambers) (deputy at a detention center shot by misdemeanant who had not been strip searched). Hours after the Oklahoma City bombing, Timothy McVeigh was stopped by a state trooper who noticed he was driving without a license plate. Johnston, Suspect Won’t Answer Any Questions, N. Y. Times, Apr. 25, 1995, p. A1. Police stopped serial killer Joel Rifkin for the same reason. McQuiston, Confession Used to Portray Rifkin as Methodical Killer, N. Y. Times, Apr. 26, 1994, p. B6. One of the terrorists involved in the September 11 attacks was stopped and ticketed for speeding just two days before hijacking Flight 93. The Terrorists: Hijacker Got a Speeding Ticket, N. Y. Times, Jan. 8, 2002, p. A12. Reasonable correctional officials could conclude these uncertainties mean they must conduct the same thorough search of everyone who will be admitted to their facilities.
Experience shows that people arrested for minor offenses have tried to smuggle prohibited items into jail, sometimes by using their rectal cavities or genitals for the concealment. They may have some of the same incentives as a serious criminal to hide contraband. A detainee might risk carrying cash, cigarettes, or a penknife to

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Opinion of the Court
survive in jail. Others may make a quick decision to hide unlawful substances to avoid getting in more trouble at the time of their arrest. This record has concrete examples. Officers at the Atlantic County Correctional Facility, for example, discovered that a man arrested for driving under the influence had “2 dime bags of weed, 1 pack of rolling papers, 20 matches, and 5 sleeping pills” taped under his scrotum. Brief for Atlantic County et al. as Amici Curiae 36 (internal quotation marks omitted). A person booked on a misdemeanor charge of disorderly conduct in Washington State managed to hide a lighter, tobacco, tattoo needles, and other prohibited items in his rectal cavity. See United States Brief 25, n. 15. San Francisco officials have discovered contraband hidden in body cavities of people arrested for trespassing, public nuisance, and shoplifting. San Francisco Brief 3. There have been similar incidents at jails throughout the country. See United States Brief 25, n. 15.
Even if people arrested for a minor offense do not themselves wish to introduce contraband into a jail, they may be coerced into doing so by others. See New Jersey Wardens Brief 16; cf. Block, 468 U. S., at 587 (“It is not unreasonable to assume, for instance, that low security risk detainees would be enlisted to help obtain contraband or weapons by their fellow inmates who are denied contact visits”). This could happen any time detainees are held in the same area, including in a van on the way to the station or in the holding cell of the jail. If, for example, a person arrested and detained for unpaid traffic citations is not subject to the same search as others, this will be well known to other detainees with jail experience. A hardened criminal or gang member can, in just a few minutes, approach the person and coerce him into hiding the fruits of a crime, a weapon, or some other contraband. As an expert in this case explained, “the interaction and mingling between misdemeanants and felons will only increase the

16 FLORENCE v. BOARD OF CHOSEN FREEHOLDERS OF COUNTY OF BURLINGTON
Opinion of the Court
amount of contraband in the facility if the jail can only conduct admission searches on felons.” App. 381a. Exempting people arrested for minor offenses from a standard search protocol thus may put them at greater risk and result in more contraband being brought into the detention facility. This is a substantial reason not to mandate the exception petitioner seeks as a matter of constitutional law.
2
It also may be difficult, as a practical matter, to classify inmates by their current and prior offenses before the intake search. Jails can be even more dangerous than prisons because officials there know so little about the people they admit at the outset. See New Jersey Wardens Brief 11–14. An arrestee may be carrying a false ID or lie about his identity. The officers who conduct an initial search often do not have access to criminal history records. See, e.g., App. 235a; New Jersey Wardens Brief 13. And those records can be inaccurate or incomplete. See Department of Justice v. Reporters Comm. for Freedom of Press, 489 U. S. 749, 752 (1989). Petitioner’s rap sheet is an example. It did not reflect his previous arrest for possession of a deadly weapon. Tr. of Oral Arg. 18–19. In the absence of reliable information it would be illogical to require officers to assume the arrestees in front of them do not pose a risk of smuggling something into the facility.
The laborious administration of prisons would become less effective, and likely less fair and evenhanded, were the practical problems inevitable from the rules suggested by petitioner to be imposed as a constitutional mandate. Even if they had accurate information about a detainee’s current and prior arrests, officers, under petitioner’s proposed regime, would encounter serious implementation difficulties. They would be required, in a few minutes, to determine whether any of the underlying offenses were

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Opinion of the Court
serious enough to authorize the more invasive search protocol. Other possible classifications based on characteristics of individual detainees also might prove to be unworkable or even give rise to charges of discriminatory application. Most officers would not be well equipped to make any of these legal determinations during the pressures of the intake process. Bull, 595 F. 3d, at 985–987 (Kozinski, C. J., concurring); see also Welsh v. Wisconsin, 466 U. S. 740, 761–762 (1984) (White, J., dissenting) (“[T]he Court’s approach will necessitate a case-by-case evaluation of the seriousness of particular crimes, a difficult task for which officers and courts are poorly equipped”). To avoid liability, officers might be inclined not to conduct a thorough search in any close case, thus creating unnecessary risk for the entire jail population. Cf. Atwater, 532 U. S., at 351, and n. 22.
The Court addressed an analogous problem in Atwater. The petitioner in that case argued the Fourth Amendment prohibited a warrantless arrest when being convicted of the suspected crime “could not ultimately carry any jail time” and there was “no compelling need for immediate detention.” Id., at 346. That rule “promise[d] very little in the way of administrability.” Id., at 350. Officers could not be expected to draw the proposed lines on a moment’s notice, and the risk of violating the Constitution would have discouraged them from arresting criminals in any questionable circumstances. Id., at 350–351 (“An officer not quite sure the drugs weighed enough to warrant jail time or not quite certain about a suspect’s risk of flight would not arrest, even though it could perfectly well turn out that, in fact, the offense called for incarceration and the defendant was long gone on the day of trial”). The Fourth Amendment did not compel this result in Atwater. The Court held that officers who have probable cause to believe even a minor criminal offense has been committed in their presence may arrest the offender. See id., at 354.

18 FLORENCE v. BOARD OF CHOSEN FREEHOLDERS OF COUNTY OF BURLINGTON
OOpipninioinonofofKtEhNeNCEoDuYr,tJ.
Individual jurisdictions can of course choose “to impose more restrictive safeguards through statutes limiting warrantless arrests for minor offenders.” Id., at 352.
One of the central principles in Atwater applies with equal force here. Officers who interact with those suspected of violating the law have an “essential interest in readily administrable rules.” Id., at 347; accord, New York v. Belton, 453 U. S. 454, 458 (1981). The officials in charge of the jails in this case urge the Court to reject any complicated constitutional scheme requiring them to conduct less thorough inspections of some detainees based on their behavior, suspected offense, criminal history, and other factors. They offer significant reasons why the Constitution must not prevent them from conducting the same search on any suspected offender who will be admitted to the general population in their facilities. The restrictions suggested by petitioner would limit the intrusion on the privacy of some detainees but at the risk of increased danger to everyone in the facility, including the less serious offenders themselves.
IV
This case does not require the Court to rule on the types of searches that would be reasonable in instances where, for example, a detainee will be held without assignment to the general jail population and without substantial contact with other detainees. This describes the circumstances in Atwater. See 532 U. S., at 324 (“Officers took Atwater’s ‘mug shot’ and placed her, alone, in a jail cell for about one hour, after which she was taken before a magistrate and released on $310 bond”). The accommodations provided in these situations may diminish the need to conduct some aspects of the searches at issue. Cf. United States Brief 30 (discussing the segregation, and less invasive searches, of individuals held by the Federal Bureau of Prisons for misdemeanors or civil contempt). The circumstances

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Opinion of the Court
before the Court, however, do not present the opportunity to consider a narrow exception of the sort JUSTICE ALITO describes, post, at 2–3 (concurring opinion), which might restrict whether an arrestee whose detention has not yet been reviewed by a magistrate or other judicial officer, and who can be held in available facilities removed from the general population, may be subjected to the types of searches at issue here.
Petitioner’s amici raise concerns about instances of officers engaging in intentional humiliation and other abusive practices. See Brief for Sister Bernie Galvin et al. as Amici Curiae; see also Hudson, 468 U. S., at 528 (“[I]ntentional harassment of even the most hardened criminals cannot be tolerated by a civilized society”); Bell, 441 U. S., at 560. There also may be legitimate concerns about the invasiveness of searches that involve the touching of detainees. These issues are not implicated on the facts of this case, however, and it is unnecessary to consider them here.
V
Even assuming all the facts in favor of petitioner, the search procedures at the Burlington County Detention Center and the Essex County Correctional Facility struck a reasonable balance between inmate privacy and the needs of the institutions. The Fourth and Fourteenth Amendments do not require adoption of the framework of rules petitioner proposes.
The judgment of the Court of Appeals for the Third Circuit is affirmed.
It is so ordered.

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1

ROBERTS, C. J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 10–945
_________________
ALBERT W. FLORENCE, PETITIONER v. BOARD OF CHOSEN FREEHOLDERS OF THE COUNTY OF BURLINGTON ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
[April 2, 2012]
CHIEF JUSTICE ROBERTS, concurring. I join the opinion of the Court. As with JUSTICE ALITO, however, it is important for me that the Court does not foreclose the possibility of an exception to the rule it announces. JUSTICE KENNEDY explains that the circumstances before it do not afford an opportunity to consider that possibility. Ante, at 18–19. Those circumstances include the facts that Florence was detained not for a minor traffic offense but instead pursuant to a warrant for his arrest, and that there was apparently no alternative, if Florence were to be detained, to holding him in the general jail population. Factual nuances have not played a significant role as this case has been presented to the Court. Both courts below regarded acknowledged factual disputes as “immaterial” to their conflicting dispositions, 621 F. 3d 296, 300 (CA3 2010), and before this Court Florence challenged suspicionless strip searches “no matter what the circumstances.” Pet. for Cert. i. The Court makes a persuasive case for the general applicability of the rule it announces. The Court is nonetheless wise to leave open the possibility of exceptions, to ensure that we “not embarrass the future.” Northwest Airlines, Inc. v. Minnesota, 322 U. S. 292, 300 (1944) (Frankfurter, J.).

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1

ALITO, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 10–945
_________________
ALBERT W. FLORENCE, PETITIONER v. BOARD OF CHOSEN FREEHOLDERS OF THE COUNTY OF BURLINGTON ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
[April 2, 2012]
JUSTICE ALITO, concurring.
I join the opinion of the Court but emphasize the limits of today’s holding. The Court holds that jail administrators may require all arrestees who are committed to the general population of a jail to undergo visual strip searches not involving physical contact by corrections officers. To perform the searches, officers may direct the arrestees to disrobe, shower, and submit to a visual inspection. As part of the inspection, the arrestees may be required to manipulate their bodies.
Undergoing such an inspection is undoubtedly humiliating and deeply offensive to many, but there are reasonable grounds for strip searching arrestees before they are admitted to the general population of a jail. As the Court explains, there is a serious danger that some detainees will attempt to smuggle weapons, drugs, or other contraband into the jail. Some detainees may have lice, which can easily spread to others in the facility, and some detainees may have diseases or injuries for which the jail is required to provide medical treatment. In addition, if a detainee with gang-related tattoos is inadvertently housed with detainees from a rival gang, violence may ensue.
Petitioner and the dissent would permit corrections officers to conduct the visual strip search at issue here

2 FLORENCE v. BOARD OF CHOSEN FREEHOLDERS OF COUNTY OF BURLINGTON
ALITO, J., concurring
only if the officers have a reasonable basis for thinking that a particular arrestee may present a danger to other detainees or members of the jail staff. But as the Court explains, corrections officers are often in a very poor position to make such a determination, and the threat to the health and safety of detainees and staff, should the officers miscalculate, is simply too great.
It is important to note, however, that the Court does not hold that it is always reasonable to conduct a full strip search of an arrestee whose detention has not been reviewed by a judicial officer and who could be held in available facilities apart from the general population. Most of those arrested for minor offenses are not dangerous, and most are released from custody prior to or at the time of their initial appearance before a magistrate. In some cases, the charges are dropped. In others, arrestees are released either on their own recognizance or on minimal bail. In the end, few are sentenced to incarceration. For these persons, admission to the general jail population, with the concomitant humiliation of a strip search, may not be reasonable, particularly if an alternative procedure is feasible. For example, the Federal Bureau of Prisons (BOP) and possibly even some local jails appear to segregate temporary detainees who are minor offenders from the general population. See, e.g., Brief for United States as Amicus Curiae 30; Bull v. City & Cty. of San Francisco, 595 F. 3d 964, 968 (CA9 2010) (en banc).*
——————
* In its amicus brief, the United States informs us that, according to BOP policy, prison and jail officials cannot subject persons arrested for misdemeanor or civil contempt offenses to visual body-cavity searches without their consent or without reasonable suspicion that they are concealing contraband. Brief for United States 30. Those who are not searched must be housed separately from the inmates in the general population. Ibid. Similarly, as described by the Court of Appeals in Bull, 595 F. 3d 964, the San Francisco County jail system distinguishes between arrestees who are eligible for release because, for instance, they can post bail within 12 hours and those who must be housed for an

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ALITO, J., concurring
The Court does not address whether it is always reasonable, without regard to the offense or the reason for detention, to strip search an arrestee before the arrestee’s detention has been reviewed by a judicial officer. The lead opinion explicitly reserves judgment on that question. See ante, at 18–19. In light of that limitation, I join the opinion of the Court in full.

——————
extended period of time. Id., at 968. The former are kept in holding cells at a temporary intake and release facility where they are pat searched and scanned with a metal detector but apparently are not strip searched. Ibid. The latter are transported to a jail with custodial housing facilities where they are then strip searched prior to their admission into the general population. Ibid.

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1

BREYER, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 10–945
_________________
ALBERT W. FLORENCE, PETITIONER v. BOARD OF CHOSEN FREEHOLDERS OF THE COUNTY OF BURLINGTON ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
[April 2, 2012]
JUSTICE BREYER, with whom JUSTICE GINSBURG, JUSTICE SOTOMAYOR, and JUSTICE KAGAN join, dissenting.
The petition for certiorari asks us to decide “[w]hether the Fourth Amendment permits a . . . suspicionless strip search of every individual arrested for any minor offense . . . .” Pet. for Cert. i. This question is phrased more broadly than what is at issue. The case is limited to strip searches of those arrestees entering a jail’s general population, see 621 F. 3d 296, 298 (CA3 2010). And the kind of strip search in question involves more than undressing and taking a shower (even if guards monitor the shower area for threatened disorder). Rather, the searches here involve close observation of the private areas of a person’s body and for that reason constitute a far more serious invasion of that person’s privacy.
The visually invasive kind of strip search at issue here is not unique. A similar practice is well described in Dodge v. County of Orange, 282 F. Supp. 2d 41 (SDNY 2003). In that New York case, the “strip search” (as described in a relevant prison manual) involved:
“ ‘a visual inspection of the inmate’s naked body. This should include the inmate opening his mouth and

2 FLORENCE v. BOARD OF CHOSEN FREEHOLDERS OF COUNTY OF BURLINGTON
BREYER, J., dissenting
moving his tongue up and down and from side to side, removing any dentures, running his hands through his hair, allowing his ears to be visually examined, lifting his arms to expose his arm pits, lifting his feet to examine the sole, spreading and/or lifting his testicles to expose the area behind them and bending over and/or spreading the cheeks of his buttocks to expose his anus. For females, the procedures are similar except females must in addition, squat to expose the vagina.’ ” Id., at 46.
Because the Dodge court obtained considerable empirical information about the need for such a search in respect to minor offenders, and because the searches alleged in this case do not differ significantly, I shall use the succinct Dodge description as a template for the kind of strip search to which the Question Presented refers. See, e.g., App. to Pet. for Cert. 3a–4a (alleging that officers inspected his genitals from an arm’s length away, required him to lift his genitals, and examined his anal cavity).
In my view, such a search of an individual arrested for a minor offense that does not involve drugs or violence—say a traffic offense, a regulatory offense, an essentially civil matter, or any other such misdemeanor—is an “unreasonable searc[h]” forbidden by the Fourth Amendment, unless prison authorities have reasonable suspicion to believe that the individual possesses drugs or other contraband. And I dissent from the Court’s contrary determination.
I
Those confined in prison retain basic constitutional rights. Bell v. Wolfish, 441 U. S. 520, 545 (1979); 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”). The constitutional right at issue here is the Fourth Amendment right to be free of “unreasonable searches and seizures.” And, as the Court

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notes, the applicable standard is the Fourth Amendment balancing inquiry announced regarding prison inmates in Bell v. Wolfish, supra. The Court said:
“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 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.
I have described in general terms, see supra, at 1–2, the place, scope and manner of “the particular intrusion.” Bell, 441 U. S., at 559. I now explain why I believe that the “invasion of personal rights” here is very serious and lacks need or justification, ibid.—at least as to the category of minor offenders at issue.
II
A strip search that involves a stranger peering without consent at a naked individual, and in particular at the most private portions of that person’s body, is a serious invasion of privacy. We have recently said, in respect to a schoolchild (and a less intrusive search), that the “meaning of such a search, and the degradation its subject may reasonably feel, place a search that intrusive in a category of its own demanding its own specific suspicions.” Safford Unified School Dist. #1 v. Redding, 557 U. S. ___, ___ (2009) (slip op., at 11). The Courts of Appeals have more directly described the privacy interests at stake, writing, for example, that practices similar to those at issue here are “demeaning, dehumanizing, undignified, humiliating, terrifying, unpleasant, embarrassing, [and] repulsive, signifying degradation and submission.” Mary Beth G. v.

4 FLORENCE v. BOARD OF CHOSEN FREEHOLDERS OF COUNTY OF BURLINGTON
BREYER, J., dissenting
Chicago, 723 F. 2d 1263, 1272 (CA7 1984) (internal quotation marks omitted); see also, e.g., Blackburn v. Snow, 771 F. 2d 556, 564 (CA1 1985) (“ ‘[A]ll courts’ ” have recognized the “ ‘ severe if not gross interference with a person’s privacy’ ” that accompany visual body cavity searches (quoting Arruda v. Fair, 710 F. 2d 886, 887 (CA1 1983))). These kinds of searches also gave this Court the “most pause” in Bell, supra, at 558 (guards strip searched prisoners after they received outside visits). Even when carried out in a respectful manner, and even absent any physical touching, see ante at 4–5, 19, such searches are inherently harmful, humiliating, and degrading. And the harm to privacy interests would seem particularly acute where the person searched may well have no expectation of being subject to such a search, say, because she had simply received a traffic ticket for failing to buckle a seatbelt, because he had not previously paid a civil fine, or because she had been arrested for a minor trespass.
In Atwater v. Lago Vista, 532 U. S. 318, 323–324 (2001), for example, police arrested a mother driving with her two children because their seat belts were not buckled. This Court held that the Constitution did not forbid an arrest for a minor seatbelt offense. Id., at 323. But, in doing so, it pointed out that the woman was held for only an hour (before being taken to a magistrate and released on bond) and that the search—she had to remove her shoes, jewelry, and the contents of her pockets, id., at 355—was not “ ‘unusually harmful to [her] privacy or . . . physical interests.’ ” Id., at 354 (quoting Whren v. United States, 517 U. S. 806, 818 (1996)). Would this Court have upheld the arrest had the magistrate not been immediately available, had the police housed her overnight in the jail, and had they subjected her to a search of the kind at issue here? Cf. County of Riverside v. McLaughlin, 500 U. S. 44, 56 (1991) (presentment must be within 48 hours after arrest).
The petitioner, Albert W. Florence, states that his pre-

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sent arrest grew out of an (erroneous) report that he had failed to pay a minor civil fine previously assessed because he had hindered a prosecution (by fleeing police officers in his automobile). App. 25a–26a. He alleges that he was held for six days in jail before being taken to a magistrate and that he was subjected to two strip searches of the kind in question. App. to Pet. for Cert. 3a.
Amicus briefs present other instances in which individuals arrested for minor offenses have been subjected to the humiliations of a visual strip search. They include a nun, a Sister of Divine Providence for 50 years, who was arrested for trespassing during an antiwar demonstration. Brief for Sister Bernie Galvin et al. as Amici Curiae 6. They include women who were strip-searched during periods of lactation or menstruation. Id., at 11–12 (describing humiliating experience of female student who was strip searched while menstruating); Archuleta v. Wagner, 523 F. 3d 1278, 1282 (CA10 2008) (same for woman lactating). They include victims of sexual violence. Brief for Domestic Violence Legal Empowerment and Appeals Project et al. as Amici Curiae. They include individuals detained for such infractions as driving with a noisy muffler, driving with an inoperable headlight, failing to use a turn signal, or riding a bicycle without an audible bell. Brief for Petitioner 11, 25; see also Mary Beth G., supra, at 1267, n. 2 (considering strip search of a person arrested for having outstanding parking tickets and a person arrested for making an improper left turn); Jones v. Edwards, 770 F. 2d 739, 741 (CA8 1985) (same for violation of dog leash law). They include persons who perhaps should never have been placed in the general jail population in the first place. See ante, at 2 (ALITO, J. concurring) (“admission to general jail population, with the concomitant humiliation of a strip search, may not be reasonable” for those “whose detention has not been reviewed by a judicial officer and who could not be held in available facilities apart from the

6 FLORENCE v. BOARD OF CHOSEN FREEHOLDERS OF COUNTY OF BURLINGTON
BREYER, J., dissenting
general population”). I need not go on. I doubt that we seriously disagree
about the nature of the strip search or about the serious affront to human dignity and to individual privacy that it presents. The basic question before us is whether such a search is nonetheless justified when an individual arrested for a minor offense is involuntarily placed in the general jail or prison population.
III
The majority, like the respondents, argues that strip searches are needed (1) to detect injuries or diseases, such as lice, that might spread in confinement, (2) to identify gang tattoos, which might reflect a need for special housing to avoid violence, and (3) to detect contraband, including drugs, guns, knives, and even pens or chewing gum, which might prove harmful or dangerous in prison. In evaluating this argument, I, like the majority, recognize: that managing a jail or prison is an “inordinately difficult undertaking,” Turner, 482 U. S., at 85; that prison regulations that interfere with important constitutional interests are generally valid as long as they are “reasonably related to legitimate penological interests,” id., at 89; that finding injuries and preventing the spread of disease, minimizing the threat of gang violence, and detecting contraband are “legitimate penological interests,” ibid.; and that we normally defer to the expertise of jail and prison administrators in such matters, id., at 85.
Nonetheless, the “particular” invasion of interests, Bell, 441 U. S., at 559, must be “ ‘reasonably related’ ” to the justifying “penological interest” and the need must not be “ ‘exaggerated.’ ” Turner, supra, at 87. It is at this point that I must part company with the majority. I have found no convincing reason indicating that, in the absence of reasonable suspicion, involuntary strip searches of those arrested for minor offenses are necessary in order to fur-

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ther the penal interests mentioned. And there are strong reasons to believe they are not justified.
The lack of justification is fairly obvious with respect to the first two penological interests advanced. The searches already employed at Essex and Burlington include: (a) pat-frisking all inmates; (b) making inmates go through metal detectors (including the Body Orifice Screening System (BOSS) chair used at Essex County Correctional Facility that identifies metal hidden within the body); (c) making inmates shower and use particular delousing agents or bathing supplies; and (d) searching inmates’ clothing. In addition, petitioner concedes that detainees could be lawfully subject to being viewed in their undergarments by jail officers or during showering (for security purposes). Brief for Petitioner 9; Tr. of Oral Arg. 7–8 (“Showering in the presence of officers is not something that requires reasonable suspicion”). No one here has offered any reason, example, or empirical evidence suggesting the inadequacy of such practices for detecting injuries, diseases, or tattoos. In particular, there is no connection between the genital lift and the “squat and cough” that Florence was allegedly subjected to and health or gang concerns. See Brief for Academics on Gang Behavior as Amici Curiae; Brief for Medical Society of New Jersey et al. as Amici Curiae.
The lack of justification for such a strip search is less obvious but no less real in respect to the third interest, namely that of detecting contraband. The information demonstrating the lack of justification is of three kinds. First, there are empirically based conclusions reached in specific cases. The New York Federal District Court, to which I have referred, conducted a study of 23,000 persons admitted to the Orange County correctional facility between 1999 and 2003. Dodge, 282 F. Supp. 2d, at 69. These 23,000 persons underwent a strip search of the kind described, supra, at 1. Of these 23,000 persons, the court

8 FLORENCE v. BOARD OF CHOSEN FREEHOLDERS OF COUNTY OF BURLINGTON
BREYER, J., dissenting
wrote, “the County encountered three incidents of drugs recovered from an inmate’s anal cavity and two incidents of drugs falling from an inmate’s underwear during the course of a strip search.” 282 F. Supp. 2d, at 69. The court added that in four of these five instances there may have been “reasonable suspicion” to search, leaving only one instance in 23,000 in which the strip search policy “arguably” detected additional contraband. Id., at 70. The study is imperfect, for search standards changed during the time it was conducted. Id., at 50–51. But the large number of inmates, the small number of “incidents,” and the District Court’s own conclusions make the study probative though not conclusive.
Similarly, in Shain v. Ellison, 273 F. 3d 56, 60 (CA2 2001), the court received data produced by the county jail showing that authorities conducted body-cavity strip searches, similar to those at issue here, of 75,000 new inmates over a period of five years. Brief for PlaintiffAppellee-Cross-Appellant in No. 00–7061 etc. (CA2), p. 16 (citing to its App. 343a–493a). In 16 instances the searches led to the discovery of contraband. The record further showed that 13 of these 16 pieces of contraband would have been detected in a patdown or a search of shoes and outer-clothing. In the three instances in which contraband was found on the detainee’s body or in a body cavity, there was a drug or felony history that would have justified a strip search on individualized reasonable suspicion. Ibid.; Brief for National Police Accountability Project as Amicus Curiae 10.
Second, there is the plethora of recommendations of professional bodies, such as correctional associations, that have studied and thoughtfully considered the matter. The American Correctional Association (ACA)—an association that informs our view of “what is obtainable and what is acceptable in corrections philosophy,” Brown v. Plata, 563 U. S. ___, ___ (2011) (slip op., at 43)—has promulgated a

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standard that forbids suspicionless strip searches. And it has done so after consultation with the American Jail Association, National Sheriff’s Association, National Institute of Corrections of the Department of Justice, and Federal Bureau of Prisons. ACA, Performance-Based Standards for Adult Local Detention Facilities, Standard 4–ALDF–2C–03, p. 36 (4th ed. 2004); Dept. of Justice, Federal Performance-Based Detention Standards Handbook, §C. 6, p. 99 (Feb. 23, 2011, rev.-2), http://www. justice.gov/ofdt/fpbds02232011.pdf (all Internet materials as visited Mar. 30, 2012, and available in Clerk of Court’s case file); ACA, Core Jail Standards §1–CORE–2C–02, pp. vii, 23 (2010). A standard desk reference for general information about sound correctional practices advises against suspicionless strip searches. Dept. of Justice, National Institute of Corrections, M. Martin & T. Rosazza, Resource Guide for Jail Administrators 4, 113 (2004); see also Dept. of Justice, National Institute of Corrections, M. Martin & P. Katsampes, Sheriff’s Guide to Effective Jail Operations 50 (2007).
Moreover, many correctional facilities apply a reasonable suspicion standard before strip searching inmates entering the general jail population, including the U. S. Marshals Service, the Immigration and Customs Service, and the Bureau of Indian Affairs. See U. S. Marshals Serv., Policy Directive, Prisoner Custody-Body Searches §9.1(E)(3) (2010), http://www.usmarshals.gov/foia / DirectivesPolicy / prisoner_ops / body_searches.pdf; Immigration and Customs Enforcement (ICE) Detention Standard: Searches of Detainees 1 (2008), http://www.ice.gov/doclib/ dro/ detention-standards / pdf/searches_of_detainees.pdf; ICE/DRO, Detention Standard: Admission and Release 4–5 (2008), http://www.ice.gov/doclib/dro/detention-standards/ pdf/environmental_health_and_safety.pdf; Bureau of Indian Affairs, Office of Justice Servs., BIA Adult Detention Facility Guidelines 22 (Draft 2010). The Federal Bureau

10 FLORENCE v. BOARD OF CHOSEN FREEHOLDERS OF COUNTY OF BURLINGTON
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of Prisons (BOP) itself forbids suspicionless strip searches for minor offenders, though it houses separately (and does not admit to the general jail population) a person who does not consent to such a search. See Dept. of Justice, BOP Program Statement 5140.38, p. 5. (2004), http://www. bop.gov/policy/progstat/5140_038.pdf.
Third, there is general experience in areas where the law has forbidden here-relevant suspicionless searches. Laws in at least 10 States prohibit suspicionless strip searches. See, e.g., Mo. Stat. Ann. §544.193.2 (2002) (“No person arrested or detained for a traffic offense or an offense which does not constitute a felony may be subject to a strip search or a body cavity search . . . unless there is probable cause to believe that such person is concealing a weapon . . . or contraband”); Kan. Stat. Ann. §22–2521(a) (2007) (similar); Iowa Code §804.30 (2009) (similar); 725 Ill. Comp. Stat., ch. 725, §5/103–1(c) (2011) (similar but requiring “reasonable belief ”); 501 Ky. Admin. Regs. 3:120, §3(1)(b) (2011) (similar); Tenn. Code Ann. §40–7– 119 (2006) (similar); Colo. Rev. Stat. Ann. §16–3–405(1) (2011) (no strip search absent individualized suspicion unless person has been arraigned and court orders that suspect be detained); Fla. Stat. §901.211(2) (2010) (similar); Mich. Comp. Laws Ann. §764.25a(2) (2000) (similar); Wash. Rev. Code §10.79.130(1) (2010) (similar).
At the same time at least seven Courts of Appeals have considered the question and have required reasonable suspicion that an arrestee is concealing weapons or contraband before a strip search of one arrested for a minor offense can take place. See, e.g., Roberts v. Rhode Island, 239 F. 3d 107, 112–113 (CA1 2001); Weber v. Dell, 804 F. 2d 796, 802 (CA2 1986); Logan v. Shealy, 660 F. 2d 1007, 1013 (CA4 1981); Stewart v. Lubbock Cty. Tex., 767 F. 2d 153, 156–157 (CA5 1985); Masters v. Crouch, 872 F. 2d 1248, 1255 (CA6 1989); Mary Beth G., 723 F. 2d, at 1266, 1273; Edwards, 770 F. 2d, at 742; Hill v. Bogans,

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735 F. 2d 391, 394 (CA10 1984). But see 621 F. 3d, at 311 (case below); Bull v. City and County of San Francisco, 595 F. 3d 964, 975 (CA9 2010) (en banc); Powell v. Barrett, 541 F. 3d 1298, 1307 (CA11 2008) (en banc). Respondents have not presented convincing grounds to believe that administration of these legal standards has increased the smuggling of contraband into prison.
Indeed, neither the majority’s opinion nor the briefs set forth any clear example of an instance in which contraband was smuggled into the general jail population during intake that could not have been discovered if the jail was employing a reasonable suspicion standard. The majority does cite general examples from Atlantic County and Washington State where contraband has been recovered in correctional facilities from inmates arrested for driving under the influence and disorderly conduct. Ante, at 15. Similarly, the majority refers to information, provided by San Francisco jail authorities, stating that they have found handcuff keys, syringes, crack pipes, drugs, and knives during body-cavity searches, including during searches of minor offenders, including a man arrested for illegally lodging (drugs), and a woman arrested for prostitution and public nuisance (“bindles of crack cocaine”). Brief for City and County of San Francisco et al. as Amici Curiae 7–13; Bull, supra, at 969; ante, at 15. And associated statistics indicate that the policy of conducting visual cavity searches of all those admitted to the general population in San Francisco may account for the discovery of contraband in approximately 15 instances per year. Bull, supra, at 969.
But neither San Francisco nor the respondents tell us whether reasonable suspicion was present or absent in any of the 15 instances. Nor is there any showing by the majority that the few unclear examples of contraband recovered in Atlantic County, Washington State, or anywhere else could not have been discovered through a policy

12 FLORENCE v. BOARD OF CHOSEN FREEHOLDERS OF COUNTY OF BURLINGTON
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that required reasonable suspicion for strip searches. And without some such indication, I am left without an example of any instance in which contraband was found on an individual through an inspection of their private parts or body cavities which could not have been found under a policy requiring reasonable suspicion. Hence, at a minimum these examples, including San Francisco’s statistics, do not provide a significant counterweight to those presented in Dodge and Shain.
Nor do I find the majority’s lack of examples surprising. After all, those arrested for minor offenses are often stopped and arrested unexpectedly. And they consequently will have had little opportunity to hide things in their body cavities. Thus, the widespread advocacy by prison experts and the widespread application in many States and federal circuits of “reasonable suspicion” requirements indicates an ability to apply such standards in practice without unduly interfering with the legitimate penal interest in preventing the smuggling of contraband.
The majority is left with the word of prison officials in support of its contrary proposition. And though that word is important, it cannot be sufficient. Cf. Dept. of Justice, National Institute of Corrections, W. Collins, Jails and the Constitution: An Overview 28–29 (2d ed. 2007) (Though prison officials often “passionately believed” similar requirements would lead to contraband-related security problems, once those requirements were imposed those “problems did not develop”).
The majority also relies upon Bell, 441 U. S. 520, itself. Ante, at 5–6. In that case, the Court considered a prison policy requiring a strip search of all detainees after “contact visits” with unimprisoned visitors. 441 U. S., at 558. The Court found that policy justified. Id., at 560. Contrary to the majority’s suggestion, that case does not provide precedent for the proposition that the word of prison officials (accompanied by a “single instance” of empirical

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example) is sufficient to support a strip search policy. Ante, at 6. The majority correctly points out that there was but “one instance” in which the policy had led to the discovery of an effort to smuggle contraband. Bell, 441 U. S., at 558. But the Court understood that the prison had been open only four months. Id., at 526. And the Court was also presented with other examples where inmates attempted to smuggle contraband during contact visits. Id., at 559.
It is true that in Bell the Court found the prison justified in conducting postcontact searches even as to pretrial detainees who had been brought before a magistrate, denied bail, and “committed to the detention facility only because no other less drastic means [could] reasonably assure [their] presence at trial.” 441 U. S., at 546, n. 28. The Court recognized that those ordered detained by a magistrate were often those “charged with serious crimes, or who have prior records.” Ibid. For that reason, those detainees posed at least the same security risk as convicted inmates, if not “a greater risk to jail security and order,” and a “greater risk of escape.” Ibid. And, of course, in Bell, both the inmates at issue and their visitors had the time to plan to smuggle contraband in that case, unlike those persons at issue here (imprisoned soon after an unexpected arrest).
The Bell Court had no occasion to focus upon those arrested for minor crimes, prior to a judicial officer’s determination that they should be committed to prison. I share JUSTICE ALITO’s intuition that the calculus may be different in such cases, given that “[m]ost of those arrested for minor offenses are not dangerous, and most are released from custody prior to or at the time of their initial appearance before a magistrate.” Ante, at 2 (concurring opinion). As he notes, this case does not address, and “reserves judgment on,” whether it is always reasonable “to strip search an arrestee before the arrestee’s detention

14 FLORENCE v. BOARD OF CHOSEN FREEHOLDERS OF COUNTY OF BURLINGTON
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has been reviewed by a judicial officer.” Ante, at 3. In my view, it is highly questionable that officials would be justified, for instance, in admitting to the dangerous world of the general jail population and subjecting to a strip search someone with no criminal background arrested for jaywalking or another similarly minor crime, supra, at 5. Indeed, that consideration likely underlies why the Federal Government and many States segregate such individuals even when admitted to jail, and several jurisdictions provide that such individuals be released without detention in the ordinary case. See, e.g., Cal. Penal Code Ann. §853.6 (West Supp. 2012).
In an appropriate case, therefore, it remains open for the Court to consider whether it would be reasonable to admit an arrestee for a minor offense to the general jail population, and to subject her to the “humiliation of a strip search,” prior to any review by a judicial officer. Ante, at 2 (ALITO, J., concurring).
* * *
For the reasons set forth, I cannot find justification for the strip search policy at issue here—a policy that would subject those arrested for minor offenses to serious invasions of their personal privacy. I consequently dissent.