UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Paul Bame

)

520 North Sherwood #18

)

Ft. Collins, Colorado 80521

)

)

Gregory Keltner

)

945 Williamson St.

)

Madison, Wisconsin 53703

)

)

Ivan Welander

)

18772 Gays View Rd.

)

Gays Mills, Wisconsin 54631

)

)

Plaintiffs,

)

on behalf of themselves and all

)

other similarly situated

)

)

vs.

)

)

John F. Clark,

)

In his official capacity as

)

Acting Director

)

United States Marshal’s Service )

600 Army Navy Drive

)

Arlington, VA 22202-4210

)

)

George B.Walsh,

)

in his official capacity as the

)

United States Marshal for the

)

District of Columbia,

)

U.S. Courthouse

)

333 Constitution Avenue, N.W.

)

Washington, D.C. 20001

)

)

Todd Walther Dillard

)

In his individual capacity

)

(Former United States Marshall for )

the District of Columbia, D.C.)

)

5414 Freelark Place

)

Columbia, MD 21045

)

Civil Action No.

1

)

John Does No. 1 to 15

)

United States Deputy Marshals for )

the District of Columbia, D.C.

)

Superior Court for the District of )

Columbia

)

500 Indiana Ave., N.W.

)

Washington, D.C. 20001

)

)

Defendants.

)

____________________________ )

CLASS ACTION COMPLAINT FOR COMPENSATORY AND PUNITIVE DAMAGES

1. Plaintiffs Paul Bame, Ivan Welander, and Greg Keltner bring this action on their own behalf and on behalf of all other men who were arrested on September 27, 2002 during several large protests involving hundreds of people in downtown Washington, D.C, and who were subjected to an unlawful strip search as described herein. On September 28, 2002, several hours following their arrest, the men were subjected to unlawful strip searches by defendants deputy U.S. Marshals acting under the supervision of Todd Dillard, then the U.S. Marshall for the District of Columbia. The strip searches were conducted without reasonable, particularized, individualized suspicion in violation of their Fourth Amendment right to be free of unreasonable searches and seizures.

JURISDICTION AND VENUE 2. This Court has jurisdiction over this action and plaintiffs’ 42 U.S.C. §1983 and Bivens
claims pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1343(a)(3). 3. Venue is appropriate in this District because each of the claims for relief arose in this
2

judicial district. PARTIES PLAINTIFF
4. Plaintiff Paul Bame was arrested on charges of “incommoding” and two other minor infractions during a mass protest in Washington, D.C. on September 27, 2002. He was arrested by officers of the Metropolitan Police Department of the District of Columbia (“D.C. Police”), or officers of police departments acting under the supervision of the D.C. Police. a. After his arrest he was initially held in custody of the D.C. Police and then was transferred to the custody of deputy U.S. Marshals and held in their custody for several hours lasting into September 28, 2002. b. While held in custody of the U.S. Marshals, several deputies conducted a strip search on him in the presence of eight to twelve other male arrestees, who were strip searched at the same time. The search performed on him was conducted without the deputies having any individualized, reasonable suspicion upon which to base a search. c. He was released a few hours later after appearing before a judge at the federal courthouse. He was not required to post bond. d. He is an adult resident of the State of Colorado.
5. Plaintiff Greg Keltner was arrested during a mass protest in Washington, D.C. on September 27, 2002. He was arrested by D.C. police officers, or officers of police departments acting under the supervision of the D.C. Police. a. After his arrest he was initially held in custody of the D.C. Police and then was
3

transferred to the custody of deputy U.S. Marshals and held in their custody for several hours lasting into September 28, 2002. b. While held in custody of the U.S. Marshals, several deputies conducted a strip search on him in the presence of eight to twelve other male arrestees, who were strip searched at the same time. The search performed on him was conducted without the deputies having any individualized, reasonable suspicion upon which to base a search. c. He was released a few hours later without being brought before a judge and without posting bond. d. He is an adult resident of the State of Wisconsin. 6. Plaintiff Ivan Welander was arrested during a mass protest in Washington, D.C. on September 27, 2002. He was arrested by D.C. police officers, or officers of police departments acting under the supervision of the D.C. Police. a. After his arrest he was initially held in custody of the D.C. Police and then was transferred to the custody of deputy U.S. Marshals and held in their custody for several hours lasting into September 28, 2002. b. While held in custody of the U.S. Marshals, several deputies conducted a strip search on him in the presence of eight to twelve other male arrestees, who were strip searched at the same time. The search performed on his was conducted without the deputies having any individualized, reasonable suspicion upon which to base a search. c. He was released a few hours later without being brought before a judge and
4

without posting bond. d. He is an adult resident of the State of Wisconsin.
PARTIES DEFENDANTS 7. Defendant John F. Clark, is sued in his official capacity as the Acting Director of the
United States Marshal’s Service (“USMS”), which is an agency of the United States Government. 8. Defendant George B. Walsh is sued in his official capacity as the United States Marshall for the District of Columbia. 9. Todd Walther Dillard was the United States Marshall for the District of Columbia at all times relevant to this action. He is sued in his individual capacity. 10. Defendants John Does 1 through 15 were, or are, deputy United States Marshals at all times relevant to this action. They are each sued in their individual capacity.
CLASS ACTION ALLEGATIONS 11. Named plaintiffs bring this action under Fed. R. Civ. Pro. Rules 23(a) and 23(b)(3) on
behalf of the class consisting of: a. each man who was: (1) arrested on September 27, 2002 by the D.C. Police
officials during a series of mass protests in downtown Washington, D.C.; (2) remanded by D.C. Police, following that arrest, into the custody of the U.S. Marshal for the District of Columbia prior to being released; and (3) subjected by deputy U.S. Marshals to a strip, visual, body cavity search without any particularized or individualized reasonable suspicion that he was concealing drugs, weapons or other contraband; (4) excluding, however, all men arrested
5

within the confines of Pershing Park on September 27, 2002. 12. The class is so numerous that joinder of all members is impracticable. The exact number
of the class membership is not known. However, records of the D.C. Superior Court dated September 28, 2002, entitled “IMF Mass Protest Lock Up List” list at least ninety men. On information and belief, at least half this number were arrested at mass protests other than at Pershing Park. Thus, this class consists of at least 45 men, and possibly more than one hundred men. 13. The class is manageable in that all members of the proposed class will be identifiable from records in the possession of defendants, and from other official records. 14. There are questions of fact and law which are common to all class members, and common to the claims of the named plaintiffs, including: a. What were the nature and extent of the strip searches conducted on every member
of the plaintiffs class? b. Whether the searches conducted by defendants on the plaintiff class members
comported with the standards provided under the Fourth Amendment to the United States Constitution? c. What policies, customs, or practices resulted in the defendants conducting strip searches on the plaintiff class members? d. Whether the U.S. Marshal’s Service, the United States Marshal in his official capacity, or former Marshal Dillard in his individual capacity, were deliberately indifferent to the rights of the class members by failing to train their staff concerning reasonable search procedures, sufficient to give rise to a claim against
6

him under 42 U.S.C. §1983? e. Whether the law in the District of Columbia was sufficiently clearly established as
of September, 2002 with regard to the legality of the strip searches conducted by defendants, such that the defendants are not protected by any qualified immunity? f. Whether the class members sustained damages and, if so, the proper measure of such damages? g. Whether Defendants were acting as an agent of or in joint action with the District of Columbia, or otherwise acting under color of D.C. law? 15. The named plaintiffs will fairly and adequately represent and protect the interests of the class. a. Named plaintiffs’ claims are typical of the claims of all class members in that they were each subjected to unlawful strip searches during the same mass arrest episode of custody as the other class members, each of whom suffered a similar strip search; b. Named plaintiffs have no conflicts with the other class members; c. There are no individual questions on the issue of liability, since every member of the plaintiff class was subjected to a blanket strip search. 16. Named plaintiffs have retained counsel who have handled complex federal court class actions in various issue areas, including claims for unlawful strip searches of prisoners. a. Lynn E. Cunningham has practiced law in the District of Columbia for thirty years and handled successful class action litigation in the areas of welfare rights, health benefits, housing rights, as well as prisoner’s rights.
7

b. Zachary Wolfe has practiced law for four years in the District of Columbia, handling a variety of cases, including successfully challenging illegal police actions with regard to public protests in D.C.. GENERAL FACTUAL ALLEGATIONS
17. On September 27, 2002, hundreds of persons, including plaintiff class members, staged a mass protest of certain federal agency policies in various locations in downtown Washington, D.C., including outside the International Monetary Fund headquarters, and various government agency and corporate headquarters buildings.
18. Hundreds of protestors, including plaintiff class members, were arrested by D.C. Police officers, and police officials from other agencies acting under the direction of D.C. police, and under the police powers of the Government of the District of Columbia.
19. After being held in the custody of the D.C. Police for many hours, the plaintiff class members and other arrestees were remanded by D.C. Police officials to the defendants during the night of September 27, 2002 and then held in custody at the United States Courthouse for the District of Columbia, awaiting arraignment on the criminal charges lodged against them.
20. Plaintiffs and plaintiff class members were held in the custody of USMS, and in the physical custody of the individual defendants until the charges alleged against them could be determined, judicially or otherwise. This determination occurred during the day on September 28, 2002.
21. While in the custody of the USMS, each and every plaintiff class member, and other arrestees, was subjected to strip searches in spite of the marshals having no individualized
8

reasonable suspicion for doing so. 22. On information and belief, defendant Dillard and the USMS deputies conducted the
uniform, blanket strip searches of each and every class member male arrestee on September 28, 2002 pursuant to an official USMS custom, policy or practice. 23. The strip searches conducted on the plaintiffs and plaintiff class members entailed the following actions: a. Small teams of defendants took aside small groups of eight to twelve plaintiff
class members into a separate holding area; b. Plaintiffs were ordered to drop their trousers and underpants, face a wall, and to
squat down and cough in front of the deputy marshals; c. No contraband was found on any class member; d. On information and belief, no records were made by the defendants of the results
of the strip searches. 24. The strip searches were intimidating, humiliating, and subjected each class member to
strong emotional distress. 25. Within a few hours after the strip searches were conducted, each class member was
released either under bond, after pleading guilty to a minor offense such as failure to obey a police officer or “incommoding,” or without any charge being advanced against him. 26. No class member was tried or convicted of any felony or crime involving violence or drug charges in connection with the arrests on September 27, 2002. 27. Both male and female protest arrestees were subjected to the searches. On information and belief, the women’s claims with regard to strip searches are addressed under separate
9

litigation. 28. On information and belief, claims of persons arrested at Pershing Park protests on that
day are also addressed under separate litigation. CLAIM ONE – BIVENS PERSONAL LIABILITY OF
FORMER UNITED STATES MARSHALL TODD WALTHER DILLARD AND OF UNITED STATES MARSHALL SERVICE EMPLOYEES DOES 1-15 FOR VIOLATION OF FOURTH AMENDMENT RIGHTS.
29. Plaintiffs re-allege and reincorporate paragraphs 1 through 28 herein. 30. Named plaintiffs and every member of the plaintiff class have a right protected under the
Fourth Amendment to the United States Constitution not to be subjected to unreasonable searches and seizures by persons acting under United States and District of Columbia governmental authority. 31. The said protection includes the right of an arrestee held on a non-drug, non-violent offense in police custody not to be subjected to a strip search in the absence of an individualized, reasonable suspicion on the part of the searching officer that there is a basis for the search. 32. Defendants Dillard and John Does numbers 1 through 15 violated that right, while acting in their capacity as U.S. Marshal and deputy U.S. Marshals by conducting on each named plaintiff and each member of the plaintiff class a search on September 28, 2002, consisting of the one or more of the defendants personally ordering each individual plaintiff to remove his clothing and exposing private parts of his body to a full visual inspection by one or more of the defendants, in the presence of other class members. 33. The defendants conducted the said searches in the absence of any reasonable,
10

individualized suspicion that any plaintiff was secreting any form of contraband on his person. 34. Defendants violated clearly established law in conducting the searches: a. Washington, D.C. had been the site of large scale protests for decades prior to
September, 2002. b. These protests have resulted many times in arrests of large numbers of protestors. c. Courts had ruled in previous decades on the proper standards for the police
treatment of arrested protestors, and held that certain forms of highly intrusive searches of such arrestees’ persons were violative of Fourth Amendment standards. d. As a result, the law governing what constitutes a reasonable ground for strip searching a prisoner had, as of 2002, long been clearly established in the District of Columbia, and, in particular, the illegality of conducting strip searches without any individualized, reasonable suspicion upon which to ground the searches. e. The defendants conducted the searches when acting under governmental authority. f. The defendants had fair notice of the applicable legal standard for the conduct of strip searches of prisoners. The plaintiffs were non-violent, non-felon, non-drugrelated prisoners, who had been arrested in the course of a peaceful protest against government policies. g. All the searches were highly invasive strip searches 35. There are no special factors to suggest to that the Court should decline to provide a
11

special cause of action or a remedy for the defendants’ violations of plaintiffs’ rights. 36. Individual defendants are each individually and directly liable under the Fourth
Amendment to each member of the plaintiff class for monetary damages for the injuries caused by defendants’ conduct. 37. The claim entails an appropriate, judicially manageable remedy, namely, money damages which may be imposed on each of the defendants individually. CLAIM TWO — INDIVIDUAL DEFENDANTS’ PERSONAL LIABILITY
UNDER 42 U.S.C. §1983 FOR VIOLATION OF THE PLAINTIFFS’ FOURTH AMENDMENT RIGHTS 38. Plaintiffs re-allege and reincorporate paragraphs 1 through 37 herein. 39. Defendants, in addition to being employees of the federal government, were at all relevant times acting as agents of, or in joint action with, the District of Columbia, for the purposes of assisting the D.C. police in the conduct of police operations during the mass protests which occurred on September 27, 2002. 40. The U.S. Marshal for the District of Columbia derived his authority over the plaintiff class while they were in custody of the USMS and the deputy marshals pursuant to statutes of the District of Columbia, including D.C. Code §§ 13-302, 16-703, 23-501, 23561, and 23-581 and cooperative agreements entered into between the U.S. Marshals Service and the Government of the District of Columbia pursuant to D.C. Code § 5133.17. 41. The operations of the USMDC are funded in part by the District of Columbia. 42. The USMDC and his deputies acted at all relevant times as the agents of, or in joint action with, the Government of the District of Columbia.
12

43. Individual defendants were following USMS policy, customs, and practices, which were the moving force behind the deprivations of the plaintiff class members’ Fourth Amendment rights.
44. At all relevant times individual defendants were acting within the scope of their employment, their acts were motivated by a desire to further the interests of the USMS, and such individuals were acting in furtherance of the business of the USMS.
45. Individual defendants proceeded under color of District of Columbia law to assume and retain custody of the plaintiffs and all members of the plaintiff class following their custody of the D.C. Police.
46. Individual defendants proceeded under color of District of Columbia law to conduct the aforementioned strip searches of the plaintiffs and all members of the plaintiff class.
47. Individual defendants are therefore liable under 42 U.S.C.§ 1983 for monetary damages for subjecting all members of the plaintiff class to violations of their Fourth Amendment rights to be free of unreasonable searches and seizures. CLAIM THREE — OFFICIAL CAPACITY LIABILITY OF JOHN CLARK OF THE UNITED STATES MARSHALS’ SERVICE AND UNITED STATES MARSHALL WALSH UNDER 42 U.S.C. §1983 FOR VIOLATION OF THE PLAINTIFFS’ FOURTH AMENDMENT RIGHTS – FAILURE TO TRAIN
48. Plaintiffs re-allege and reincorporate paragraphs 1 through 47 herein. 49. USMS training of the deputy marshals was inadequate as to the well established legal
standards with regard to what constitutes a lawful search of a prisoner, such that the deputies’ handling of the custody and searches were clearly violative of plaintiffs’ rights. 50. The USMS and the U.S. Marshall, in his official capacity, showed deliberate indifference
13

to the rights of the plaintiffs and the plaintiff class members by failing to train the deputy marshals responsible for the custody of the plaintiff class members concerning the procedures required for searches of protestors held in custody under Fourth Amendment standards. 51. The violations on September 28, 2002 of plaintiffs’ Fourth Amendment rights were foreseeable because of the USMS’s and the U.S. Marshal’s failures to train the deputy marshals who conducted the searches. 52. The USMS and the U.S. Marshall were proceeding under color of D.C. law to hold and detain the plaintiffs and members of the plaintiff class on September 28, 2002, and as such were agents of, or in joint action with, the District of Columbia. 53. The USMS and the U.S. Marshall are liable to the plaintiffs under the Fourth Amendment, enforced under 42 U.S.C. §1983, for money damages arising from the injuries suffered by the named plaintiffs and by each member of the plaintiff class as a result of the unlawful strip searches.
CLAIM FOUR — OFFICIAL CAPACITY LIABILITY OF JOHN CLARK OF THE UNITED STATES MARSHALS’ SERVICE
AND UNITED STATES MARSHALL WALSH UNDER 42 U.S.C. §1983 FOR VIOLATION OF THE PLAINTIFFS’ FOURTH AMENDMENT RIGHTS – UNLAWFUL OFFICIAL CUSTOM, POLICY, OR PRACTICE 54. Plaintiffs re-allege and reincorporate paragraphs 1 through 53 herein. 55. On information and belief, the USMS deputies proceeded on September 28, 2002 to conduct strip searches on the plaintiffs and plaintiff class members pursuant to a longstanding custom, practice, or policy of the USMS of conducting such searches on persons in USMS custody following arrests in the District of Columbia during politically
14

grounded, mass protests. 56. The USMS and the U.S. Marshall were proceeding under color of D.C. law to hold and
detain the plaintiffs and members of the plaintiff class on September 28, 2002, and as such were agents of or in joint action with the District of Columbia. 57. The USMS and the U.S. Marshall are liable to the plaintiffs under the Fourth Amendment, enforced under 42 U.S.C. §1983, for money damages arising from the injuries suffered by the named plaintiffs and by each member of the plaintiff class as a result of the unlawful strip searches.
PRAYER FOR RELIEF WHEREFORE, plaintiffs respectfully request that this Court grant the following relief:
A. Enter an Order authorizing this matter to proceed as a class action, and certifying named plaintiffs Paul Bame, Ivan Welander, and Greg Keltner as representative plaintiffs, and designating the undersigned as class counsel, on behalf of the following class: each man who was: (1) arrested on September 27, 2002 by the D.C. Police officials during a series of mass protests in downtown Washington, D.C.; (2) remanded by D.C. Police, following that arrest, into the custody of the U.S. Marshal for the District of Columbia prior to being released; and (3) subjected by deputy U.S. Marshals to a strip, visual, body cavity search without any particularized or individualized reasonable suspicion that he was concealing drugs, weapons or other contraband; (4) excluding, however, all men arrested within the confines of Pershing Park on September 27, 2002.
15

B. Award each plaintiff class member compensatory and consequential damages in an amount to be determined;
C. Award plaintiffs attorneys’ fees and costs incurred in bringing this action under 42 U.S.C. §1988 and any other applicable provision of law;
D. Grant such other and further relief as this Court deems just and proper. JURY DEMAND
Trial by jury is demanded on all issues for which a jury trial is available.
Respectfully submitted,
_____________________________ Lynn E. Cunningham, Esq. D.C. Bar No. 221598 P.O. Box 1547 Dubois, Wyoming 82513 Phone: 307-455-3334/3374 Fax: 307-455-3334 Email: lcunningham@law.gwu.edu
_____________________________ Zachary Wolfe, Esq. D.C. Bar No. 463548 People’s Law Resource Center 1725 I Street, NW, Suite 300 Washington, DC 20006 Phone: 202-265-5965 Fax: 202-250-6712 email: zwolfe@PeoplesLawResourceCenter.org
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 Case 1:05-cv-01833-RMC Document 18-1 Filed 02/08/2006 Page 1 of 25

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Paul Bame, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

John F. Clark, et al.,

)

)

Defendants.

)

____________________________________)

Civil Action No. 05-1833(RMC) No hearings scheduled

PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

Plaintiffs, by counsel, hereby move for certification of the proposed class herein pursuant

to FRCP Rule 23(a) and (b)(3).

The proposed class consists of the following persons:

All men who were: (1) arrested on September 27, 2002 by the D.C. Police officials during a series of mass protests in downtown Washington, D.C.; (2) remanded by D.C. Police, following that arrest, into the custody of the U.S. Marshal for the District of Columbia prior to being released; and (3) subjected by deputy U.S. Marshals to a strip, visual, body cavity search without any particularized or individualized reasonable suspicion that he was concealing drugs, weapons or other contraband; (4) excluding, however, all men arrested within the confines of Pershing Park on September 27, 2002.

The grounds for this motion are, first, the number of persons in the class are so numerous, i.e., over 90 men, that class treatment is the most effective means of adjudicating their claims against defendants. Second, named plaintiffs and all the class members share siginifcant common issues in their claims, and these issues predominate over any issues pertaining to any individual plaintiffs. Third, the claims of the named plaintiffs are typical of the claims of the class as a whole. Fourth, the named plaintiffs and their counsel will adequately represent the
1

Case 1:05-cv-01833-RMC Document 18-1 Filed 02/08/2006 Page 2 of 25
class. Counsel are experienced in handling class action litigation. Finally, for purposes of
treatment of the class claims under Rule 23(b)(3), the class is manageable, notice to the class can
be readily achieved, and the issue of how to treat individual damages does not predominate over
the other issues raised by plaintiffs’ claims, making class treatment of these claims superior to
any other approach.
A memorandum of points and authorities and a proposed Order are submitted in support
this motion.
Plaintiffs’ counsel have consulted by email with defense counsel, pursuant to Local Rule
7(m), as to whether defendants might consent to this motion, and they have not yet responded as
of the filing date of this motion.
Wherefore, plaintiffs’ respectfully request that the Court grant this motion for class
certification.
Respectfully submitted,
/s/Lynn E. Cunningham Lynn E. Cunningham, Esq. D.C. Bar No. 221598 P.O. Box 1547 Dubois, Wyoming 82513 Phone: 307-455-3334/3374 Fax: 307-455-3334 Email: lcunningham@law.gwu.edu
________________________________ Zachary Wolfe, Esq. D.C. Bar No. 463548 People’s Law Resource Center 1725 I Street, NW, Suite 300 Washington, DC 20006 Phone: 202 265 5965 email: zwolfe@peopleslawresourcecenter.org
2

Case 1:05-cv-01833-RMC Document 18-1 Filed 02/08/2006 Page 3 of 25 CERTIFICATE OF SERVICE
I hereby certify that service of the foregoing PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION, AND MEMORANDUM IN SUPPORT THEREOF, and a proposed Order has been made through the Court's electronic transmission facilities on counsel for all defendants on this 8th day of February, 2005. /s/ Lynn E. Cunningham Lynn E. Cunningham, Esq. (D.C. Bar No. 221598) Attorney for Plaintiffs
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Case 1:05-cv-01833-RMC Document 18-1 Filed 02/08/2006 Page 4 of 25

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Paul Bame, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

John F. Clark, et al.,

)

)

Defendants.

)

____________________________________)

Civil Action No. 05-1833(RMC)

PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR CLASS CERTIFICATION
Plaintiffs, by counsel, hereby submit this memorandum in support of their motion for class certification pursuant to FRCP Rule 23(a) and (b)(3).
Introduction and Factual Background A proposed class of approximately 90 men seeks compensatory damages herein for their unlawful strip searches by deputy U.S. marshals. The men had been arrested by members of the D.C. Metropolitan Police Department (MPD), and cooperating police officers, at a large scale, widespread, political protest held in Washington, D.C. on September 27, 2002 near the headquarters for the International Monetary Fund. All the men were arrested for failing to obey police orders, or similar minor offenses, while protesting near the intersection of Connecticut Avenue and K Street, N.W. and nearby areas, other than Pershing Park where other protests were

4

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held.1 Following their arrest, the men were held with arrestees from other protests for several
hours in the custody of the D.C. police before being turned over to the custody of the deputy
marshals, who are defendants herein. The deputy marshals proceeded to hold them in custody
for several additional hours, before conducting the strip searches complained of herein. Shortly
after the searches were conducted, the men appeared before D.C. Superior Court judicial
officers, and were released upon “post and forfeit” or upon “citation release”. Several hundred
other persons, men and women, were also arrested within Pershing Park, but they are not part of
this action. Some number of women were arrested with the proposed class of men, and they too are not part of this action because their claims are addressed in other litigation.2
Plaintiffs seek the Court’s approval of a class defined as follows:
All men who were: (1) arrested on September 27, 2002 by the D.C. Police officials during a series of mass protests in downtown Washington, D.C.; (2) remanded by D.C. Police, following that arrest, into the custody of the U.S. Marshal for the District of Columbia prior to being released; and (3) subjected by deputy U.S. Marshals to a strip, visual, body cavity search without any particularized or individualized reasonable suspicion that he was concealing drugs, weapons or other contraband; (4) excluding, however, all men arrested within the confines of Pershing Park on September 27, 2002.
The proposed class of men herein are most likely members of the plaintiff class certified
by this Court in one other suit against the D.C. government and certain of its officials, and
various federal agencies and officials. Diamond, et al. v. District of Columbia, Civil Action 03-
2005(EGS) (D.D.C., class certified March 3, 2004). Moreover, additional related litigation has

1

The factual allegations recounted in this and the following two paragraphs are set forth in the Amended

Complaint[8]. The Court has taken note of the widespread demonstrations in Washington, D.C. and related mass

arrests in its opinion certifying classes in Barham v Ramsey, and Chang et al. v U.S. et al, 217 F.R.D. 262 (2003).

2

Johnson et al. v. D.C. et al., Civil Action No. 02-2364 (RMC) where a class of female plaintiffs are

challenging the long-standing practice of the marshals in D.C. of strip searching certain categories of female

arrestees, but not male arrestees.

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been filed to challenge other aspects of the police handling of other parts of the protest, particularly arrests occurring in Pershing Park. Barham v Ramsey and Chang et al v. U.S. et al., supra. However, none of these other actions entail the claims raised herein. In other words, none of the other suits raise claims for monetary damages against defendants herein, i.e., the U.S. Marshal in his official capacity, the U.S. Marshal’s Service, former marshal Todd Dillard in his individual capacity, or the various unknown deputy marshals who actually conducted the searches on the proposed class of men arrested outside of Pershing Park on September 27, 2002. Paul Bame, Greg Keltner, and Ivan Welander, the three named plaintiffs herein, all were present with the other men and women at the protest at Connecticut and K Street or other nearby protest sites, were not arrested at Pershing Park on September 27, 2002, were arrested for minor offenses at protests outside of Pershing Park, and all were transferred from the custody of the MPD to the custody of the deputy U.S. marshals before being strip searched shortly before their court releases.
The parties in the related litigation as well as the Court, have had opportunity to develop aspects of the factual record with regard to the protests and arrests that occurred on September 27, 2002. That record need not be repeated in detail here. Nevertheless, that record, insofar as it has been developed thus far, corroborates the essentials of the allegations made in the Amended Complaint herein [8]. The protests, of which the proposed class of men were a part, were political in nature, were non-violent, and involved engagement in free speech by the protestors. Police arrests of the protestors were either entirely illegal, or were arrests not for crimes that might serve as the basis for strip searches of the arrestees while in police custody. The arrestees were held in police custody, were not intermingled with other non-protesting arrestees, and all
6

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were released without significant legal punishment, either in the form of being fined, or sentenced.
The Court has already certified classes in the “related” cases just mentioned.3 There is every reason to certify the class herein as well, as this memorandum will demonstrate. Resolution of the class members’ damages claims are best resolved on a class-wide, group basis. There are no individual questions on the issue of liability, because defendants treated all plaintiffs similarly, and, to plaintiffs’ knowledge, did not keep records of the results of the searches. Once the plaintiffs establish the fact of the strip searches, and the existence of the policies and practices applied, the burden will fall on the defendants to demonstrate, as an affirmative defense, that particular searches were reasonable. Mack v. Suffolk County, 191 F.R.D. 16, 24 (D. Mass. 2000). Therefore, defendants can not show that any of the searches were conducted based on an individual determination of reasonable suspicion. On the issue of damages, the Court may bifurcate the liability phase of the case from the relief phase, as discussed below. Alternatively, the Court is empowered to conduct sample trials to determine the amount of damages due each class member, again as discussed below.
LAW APPLICABLE TO THE CLASS; THE PROPOSED CLASS MERITS CERTIFICATION This and Other Courts Have Certified Classes in Similar Cases Courts have regularly certified classes in arrest cases where arrestees challenge a policy or pattern of conduct of the arrest and initial detention procedures that affects all or an
7

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ascertainable segment of an arrestee population. Dellums v. Powell, 566 F.2d 167 (D.C. Cir. 1977); Washington Mobilization Cttee v. Cullinane, 400 F. Supp. 186 (D.D.C. 1975), aff’d in part, rev’d in part, 566 F.2d 107 (D.C. Cir. 1977); Savard v. Rhode Island, 338 F.3d 23, 31 (1st Cir. 2003).
On facts parallel in relevant aspects to this case, other courts on many occasions have certified similar classes of pre-trial detainees subjected to unlawful strip searches.4 Maneely v. City of Newburgh, 208 F.R.D. 69 (S.D.N.Y. 2002)(certification granted of class challenging policy of conducting blanket strip searches of pretrial arraignment prisoners); Mack v. Suffolk County, 191 F.R.D. 16, 17 (D. Mass. 2000) (certification granted to class of female arrestees challenging a policy of subjecting all female arrestees to blanket strip searches); Johns v. DeLeonardis, 145 F.R.D. 480 (N.D. Ill. 1992) (class certified where approximately twenty-five women were subjected to illegal strip search by Chicago police officers in a police raid).
Moreover, this and other Courts have certified classes of prisoners unlawfully strip searched during incarceration or pending release following a judicial finding that a prisoner was eligible for release. Tardiff v. Knox County, 365 F.3d 1 (1st Cir. 2004)(affirming grant of class certification to class of detainees challenging jail strip search policies); Bynum v. District of Columbia, 257 F. Supp. 2d 1 (D.D.C. 2002)(RCL)(class certified of in-custody defendants who were returned to DC Jail for out-processing and subjected to suspicionless strip searches after a

3

The Court in Johnson v D.C., supra, has denied the motion for class certification without

prejudice because the matter was referred to mediation.

4

The classic definition of a strip search is the exposure of the naked body for inspection,

the most invasive version of which is the visual body cavity strip search. See e.g., Bell v.

Wolfish, 441 U.S. 520 (1979).

8

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judge had ordered their release state a claim under the Fourth Amendment and the Fourteenth Amendment); Masters v. Crouch, 872 F.2d 1248(6th Cir. 1989)(class relief upheld against certain strip search practices);Williams v. Block, 2000 U.S. App. LEXIS 8979 (9th Cir. 2000))the Ninth Circuit found class certification appropriate for the adjudication of prisoners’ claims for overdetention in the Los Angeles County jail); Marriott v. County of Montgomery, 2005 U.S. Dist. LEXIS 5118, 23-25 (N.D.N.Y. 2005)(affirming denial of defendants' motion for summary judgment and affirming entry of preliminary injunction enjoining county jail defendants from conducting strip searches without reasonable suspicion of individuals being held in the Montgomery County Jail for minor crimes or on civil matters); later proceeding at, Marriott v. County of Montgomery, 228 F.R.D. 133, 2005 U.S. Dist. LEXIS 13727 (N.D.N.Y. 2005), affirmed, 2005 U.S. App. LEXIS 25428 (2d Cir. 2005). See also, Blihovde v. St. Croix County, 219 F.R.D. 607, 622 (D. Wis. 2003)(granting class certification to class of strip search plaintiffs); Mack v. Suffolk County, 191 F.R.D. 16 (D. Mass. 2000); Gary v. Sheahan, 1999 U.S. Dist. LEXIS 5616 (E.D. Ill. 1999) (District Court denied defendants’ motion to decertify class of court returns strip searched after being returned to jail after cases dismissed for purposes of damages); Doe v. Calumet City, Illinois, 754 F. Supp. 1211(N.D. Illinois 1990) (summary judgment granted to class of strip searched female arrestees).
Judge Green certified a class of all current and future women inmates in the District of Columbia Department of Corrections challenging guard on inmate sexual misconduct and other prison conditions under Rule 23(a), 23(b)(1) and 23(b)(2). Women Prisoners of District of Columbia Department of Corrections v. District of Columbia, 877 F. Supp. 634, 635 (D.D.C.
9

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December 13, 1994) rev’d in part, aff’d in part, 93 F.3d 910 (D.C. Cir. 1996) (certification of class not part of appeal).
The Court’s Authority to Certify Class Actions and Subclasses Rule 23 provides for class action treatment of claims when the named plaintiffs can show that all the prerequisites of Rule 23(a) are satisfied, and that the class falls within one of the categories of Rule 23(b).5 Pigford v. Glickman, 182 F.R.D. 341 (D.D.C. 1998); Franklin v. Barry, 909 F. Supp 21, 30 (D.D.C. 1995)(citing 7A Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d § 1759, at 102 (1986)). Class actions have two primary purposes: (1) to accomplish judicial economy by avoiding multiple suits; and (2) to protect the rights of persons who might not be able to present claims on an individual basis. See, e.g., Crown, Cork & Seal Co. v. Parker, 462 U.S. 345 (1983). The United States Supreme Court has endorsed the class action procedure as a superior method of adjudicating cases like this where there are numerous claims that are too small to litigate individually. Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 809 (1985)("Rule 23 is given liberal rather than restrictive construction, and courts are to adopt a standard of flexibility . . ."). Sharif ex rel. Salahuddin v. New York State Educ. Dep't., 127 F.R.D. 84, 87 (S.D.N.Y. 1989).

5

The class in the instant case is likewise readily determinable and definable. For

discussions of the requirement in this circuit that this standard be met, see, Franklin v. Barry,

909 F. Supp. at 30; Keepseagle v. Veneman, 2001 U.S. Dist. LEXIS 25220, Civil Action No. 99-

3119, mem. op. at 1011 (D.D.C. Dec. 12, 2001) (citations omitted); Barham v. D.C., 217 F.R.D.

262, 269 (D.D.C. 2003).

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The rule's inherent flexibility, and the Court's ability to manage the litigation as it develops, counsel against decertification.
In this case, there is a clear and compelling need for class certification of plaintiffs’ claims, since dozens of individuals have been subjected to unreasonable strip searches and the class members are widely dispersed geographically. Most of the cases would too small to be litigated individually. The District Court in Maneely v. City of Newburgh, 2002 U.S. Dist. LEXIS 8643 (S.D.N.Y.) granted certification of a class solely on the issue of whether defendant maintained a policy of conducting blanket strip searches of pretrial arraignment prisoners.
The plaintiffs propose the creation of a class in this case because the members share several common questions, primarily whether the defendants maintained a policy or practice of conducting blanket strip searches and visual body cavity searches on class members following their arrest on September 27, 2002. The plaintiffs propose the recognition of a class in this case, rather than filing separate actions, for reasons of manageability and judicial economy.
This strip search class is especially well suited to class treatment. Federal Courts in the District of Columbia, Boston, Chicago, as well as New York and Maine, have certified similar classes. Mary Beth G. v. City of Chicago, 723 F.2d 1263 (7th Cir. 1983); Byum v. D.C., supra; Ford v. City of Boston, 154 F.Supp.2d 131 (D.Mass.2001); Gary v. Sheehan, 1999 U.S. Dist. LEXIS 5616 (E.D. Ill. 1999), appeal denied, 188 F.3d 891 (7th Cir. 1999) (District Court denied defendants’ motion to decertify class of court returns strip searched after being returned to jail after cases dismissed for purposes of damages); Mack v. Suffolk County, supra, 17 (District Court granted certification of class of female arrestees challenging a policy of subjecting all female arrestees to blanket strip searches); Maneely, supra.
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The majority of District Courts deciding these cases have ruled that challenges to blanket strip search policy/practices involve common issues of law and fact. See Maneely, supra; Kennedy v. Los Angeles Police Dept., 901 F.2d 702 (9th Cir. 1989)(invalidating policy requiring visual body cavity searches of all felony arrestees regardless of reasonable suspicion), and the First Circuit says the rule applies to arrestees arrested on minor charges even when they will be held in a maximum security prison and intermingled with persons serving felony sentences, Savard v. Rhode Island, 338 F.3d 23, 26 (1st Cir. 2003)(holding policy of strip-searching persons arrested for non-violent, non-drug-related misdemeanors, in the absence of particularized suspicion, violated the Constitution, even where the arrestees will be intermingled with the general population in a maximum security prison, but granting qualified immunity to officers for searches that occurred before March 17, 2000).
Presumptions applicable to motion for certification In a class certification motion, plaintiffs’ allegations in the complaint are taken as true, and inquiry into the merits of the case is improper except to determine whether there is a realistic claim. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-78 (1974); Curtin v. United Airlines, Inc., 275 F.3d 88, 92 (C.A.D.C. 2001) (citing Eisen, 417 U.S. at 177); Blackie v. Barrack, 524 F.2d 891, 901 (9th Cir. 1975); Bynum v. District of Columbia, 214 F.R.D. 27, 31 (D.D.C. 2003); Longden v. Sunderman, 123 F.R.D. 547, 551 (N.D. Tex. 1988). In a close case with respect to certification, a court should err on the side of certifying the class, because a class can always be decertified. Rule 23(c)(1); In re School Asbestos Litig., 789 F.2d 996, 1011 (3rd Cir. 1986), cert. denied, 479 U.S. 852 (1986). Esplin v. Hirschi, 402 F.2d
12

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94, 99 (10th Cir. 1968), cert. denied, 394 U.S. 928 (1969); Daigle v. Shell Oil Co., 133 F.R.D. 600, 602 (D. Colo. 1990).
PLAINTIFFS SATISFY RULE 23(A) PREREQUISITES TO CLASS CERTIFICATION
The requirements of F.R.C.P. Rule 23(a) are commonality, numerosity, typicality of claims, and adequacy of representation. The plaintiffs must meet the certification requirements independently. Alexander v. FBI, 971 F. Supp. 603 (D.D.C. 1997); Pigford, 182 F.R.D. 341, 346 (D.D.C. 1998).
Plaintiffs Meet the Numerosity Requirement. “Lock Up Lists” were prepared by MPD officers at the Blue Plains holding facility where named plaintiffs and members of the proposed plaintiff class were taken after their arrests. These lists show ninety-two persons with male names, or listed by the male name of “John Doe”, a strong indicator that the arrestee was a male person. These lists are sufficient evidence at this stage of the proceedings of the number of men who constitute the proposed class. The lists are attached as Exhibit 1. In addition, named plaintiff Paul Bame is prepared to testify that he personally witnessed at least eighty men from the protests held in the two cell blocks at the D.C. Superior courthouse facilities under the supervision of the deputy marshals dozens; that he was strip searched in a batch of eight to twelve men; and that he understood that all the men held in the two cell-blocks were strip searched in batches by defendant marshals on the morning of September 28, 2002.
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Greg Keltner is prepared to testify that he was processed by the deputy marshals on the morning of September 28, 2002 along with a batch of at least 30 other men from the protest arrests, all of whom were strip searched in small groups.
Moreover, the Court has certified two sub-classes totaling several hundred persons in the Diamond v. D.C., supra, class action and it is likely that many of the male members of those classes are members of the proposed class herein.
Whatever may be the final tally of members of the propose class, numerosity is present here, since there are at least thirty, and more likely at least ninety, members of the class.
To satisfy the numerosity requirement, plaintiffs need only show that the number of proposed class members is sufficiently large such that it would be extremely difficult or inconvenient to join all the members of the class. Moreover, the proposed class is dispersed across the country, making joinder impracticable. Chang v. U.S., 217 F.R.D. 262 (D.D.C. 2003); Franklin v. Barry, 909 F. Supp. at 30-31, (citing Robidoux v. Celani, 987 F.2d 931, 935 (2d Cir. 1993)); Kifafi v. Hilton Hotels Retirement Plan, 189 F.R.D. 174, 176 (D.D.C. 1999); Pigford v. Glickman, 182 F.R.D. at 347; Vargas v. Meese, 119 F.R.D. 291, 293 (D.D.C. 1987); EEOC v. Printing Industry of Metropolitan Washington, D.C., Inc., 92 F.R.D. 51, 53 (D.D.C. 1981).
Ninety-two persons is a sufficient number to satisfy the numerosity requirement, as would be thirty persons. The numerosity requirement “does not require immense numbers of plaintiffs. Nor does it require that the exact number of class members or their identities be alleged.” Johns v. DeLeonardis, 145 F.R.D. 480 (N.D. Ill. 1992) (numerosity requirement satisfied and class certified where approximately twenty-five women were subjected to illegal
14

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strip search by Chicago police officers in a police raid; citing Swanson v. American Consumer Indus., 415 F.2d 1326, 1333 n.9 (7th Cir. 1969) (class of forty would have been acceptable)); Patrykus v. Gomilla, 121 F.R.D. 357, 361 (N.D. Ill. 1988) (class of 50 sufficient)). To satisfy the numerosity requirement, “Plaintiffs need only show that the number is sufficiently large such that it would be extremely difficult or inconvenient to join all the members of the class.” Franklin, 909 F. Supp. at 30. This Court has held that generally 40 members will satisfy the numerosity requirement. Neal v. Moore, 1994 U.S. Dist. LEXIS 21339, *24 (D.D.C. 1994).
The party moving to certify the class need not supply the exact number of the class members. Bynum, 214 F.R.D. at 33, citing Kifafi v. Hilton Hotels Retirement Plan, 189 F.R.D. 174, 176 (D.D.C. 1999) ("So long as there is a reasonable basis for the estimate provided, the numerosity requirement can be satisfied without precise numbers.") .
A more refined number of class members herein will be determined upon further discovery.
The Class Presents Common Issues of Law and Fact. The commonality test is met where there is at least one issue, the resolution of which will affect all or a significant number of the putative class members. Bynum, 214 F.R.D. at 33; Kifafi, 189 F.R.D. at 176-77. This case presents several issues, each of which is common to each member of the class: 1. What were the nature and extent of the strip searches conducted on every member of the plaintiffs class?
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2. Whether the searches conducted by defendants on the plaintiff class members comported with the standards provided under the Fourth Amendment to the United States Constitution?6 3. What policies, customs, or practices resulted in the defendants conducting strip searches on the plaintiff class members? 4. Whether the U.S. Marshal’s Service, the United States Marshal in his official capacity, or former Marshal Dillard in his individual capacity, were deliberately indifferent to the rights of the class members by failing to train their staff concerning reasonable search procedures, sufficient to give rise to a claim against them under 42 U.S.C. §1983? 5. Whether the law in the District of Columbia was sufficiently clearly established as of September, 2002 with regard to the legality of the strip searches conducted by defendants, such that the defendants are not protected by any qualified immunity? 6. Whether the class members sustained damages and, if so, the proper measure of such damages? 7. Whether Defendants were acting as an agent of, or in joint action with, the District of Columbia, or otherwise acting under color of D.C. law?
There are no individual fact questions on the issue of liability, because apparently none of the defendants kept records of the searches. Therefore, once plaintiffs establish a policy and practice of the searches, none of the defendants will have evidence to show that any of the

6

Significantly, as plaintiffs are prepared to show in later filings, every single one of the twelve federal

circuits, except for the Third Circuit (and not counting the Federal Circuit), have held that the Fourth Amendment

prohibits strip searches of arrestees and detainees charged with non-drug misdemeanors and other minor offenses

without an individualized finding of reasonable suspicion that the person being searched is concealing drugs,

weapons or other contraband. See also, e.g., Helton v. U.S., 191 F. Supp.2d 179, 184-5 (D.D.C. 2002); Bynum v.

D.C., 257 F. Supp. 2d 1 (D.D.C. 2002)(denying D.C. motion to dismiss claims for strip searches of persons ordered

released).

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searches were conducted based on an individual determination of reasonable suspicion. Once plaintiffs establish the existence of a policy or practice, the burden will fall on the defendants to demonstrate, as an affirmative defense, that particular searches were reasonable. See, e.g., Bynum, supra; Helton, supra; Mack v. Suffolk County, 191 F.R.D. 16, 24 (D. Mass. 2000).
Named Plaintiffs Raise Claims Typical of the Proposed Class. Named plaintiffs’ claims are typical because they arise from the same practice or course
of conduct by the defendants, and they are based on the same legal theory as those raised by all class members. Bynum v. D.C., 214 F.R.D. at 34; Mack, 191 F.R.D. at 22; Stewart v. Rubin, 948 F. Supp. at 1088. The named plaintiffs satisfy this requirement because each of them and each member of the class has the same legal theory based on the same pattern of facts: each class suffered Constitutional injury because each one was subjected to standardized searches conducted by defendants in connection with arrests which were, in turn, based on minor, nonviolent infractions by persons engaged in a mass protest, all without any individualized, reasonable suspicion upon which to base such searches. As set forth in the First Amended Complaint, each of the named plaintiffs, Paul Bame, Gregory Keltner, and Ivan Welander were arrested for minor infractions with the other class members on September 27, 2002, and held in the custody of the D.C. Police officers. Early in the morning of September 28, 2002, they were transferred to the custody of deputy U.S. Marshals, and subjected by those deputies to a full body strip search, without any individualized, reasonable suspicion upon which to base such searches. A few hours later, all members of the class, including the three named plaintiffs, were released by a judicial officer of D.C. Superior Court.
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The Proposed Class Is Adequately Represented. Rule 23(a)(4) requires that the class have adequate representation. Bynum, 214 at 35; 7
Chang, 217 F.R.D. at 273; Coleman v. Pension Benefit Guaranty Corp., 196 F.R.D. 193, 198 (D.D.C. 2000); Pigford, 182 F.R.D. at 350; Kifafi, 189 F.R.D. at 177; Vargas, 119 F.R.D. at 295. This requirement is met when there is no conflict of interest between the legal interests of the named plaintiffs and those of the proposed class. Additionally, counsel for the plaintiffs must be competent to represent the class.
In this case, no conflicts of interest exist between the representative plaintiffs and the proposed class. The named plaintiffs seek to redress the deprivation of rights conferred upon them and on all class members by the United States Constitution. The representative plaintiffs’ interests do not conflict with those of the putative class. Just the opposite, the issues presented by the named representatives mirror those faced by the putative class, which stands only to gain by this action.
Plaintiffs’ counsel are competent to represent the members of the class with great vigor and adequate resources. Two attorneys with years of experience handling class actions will provide the legal representation in this case.

7

The Court in Bynum noted: “ ‘Two criteria for determining the adequacy of

representation are generally recognized: 1) the named representative must not have antagonistic

or conflicting interests with the unnamed members of the class, and 2) the representative must

appear able to vigorously prosecute the interests of the class through qualified counsel.’".

Accord, Twelve John Does v. District of Columbia, 326 U.S. App. D.C. 17, 117 F.3d 571, 575

(D.C. Cir. 1997) (citing Nat'l Ass'n of Regional Medical Programs, Inc. v. Mathews, 179 U.S.

App. D.C. 154, 551 F.2d 340, 345 (D.C. Cir.1976)) (internal citation omitted). 214 F.R.D. at 35.

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Lynn E. Cunningham has practiced law in the District of Columbia for thirty years, and handled many class action cases, as described in his attached affirmation and resume. Exhibits 2 and 3. Most notably for purposes of this case, he co-counseled Bynum v. D.C., supra, involving claims on behalf of D.C. Jail prisoners for unlawful strip searches, as well as claims for overdetention. The case was recently was finally approved for settlement by Judge Lamberth. Bynum v. District of Columbia, --- F.Supp.2d ----, 2006 WL 172244 (D.D.C. Jan 25, 2006) (NO. CIV.A.02-956(RCL).
Mr. Zachary Wolfe has practiced law in the District of Columbia for six years, and has served as a member of the plaintiffs’ counsel team in cases challenging police misconduct here, including Barham v. Ramsey. His affirmation and resume are attached as Exhibits 4 and 5. In addition, plaintiffs’ counsel have conducted extensive research on the merits of this class action, as required pursuant to FRCP Rule 23(g)(1)(C). They have performed factual research on the background of the case, and reviewed much of the extensive court records in related cases, including Barham, Burgin-Diamond, Chang, and Franklin, all supra. They have reviewed the extensive reports of the D.C. Council hearings concerning the handling of the April 27, 2002 mass arrests in D.C., and other activities of the D.C. Metropolitan Police with regard to protests held in D.C. They have made themselves generally familiar with the D.C. criminal justice system, and the police holding-operations for arrestees in D.C. Both Mr. Cunningham and Mr. Wolfe have done extensive legal research on the legal bases of the claims raised herein, both during their preparation for the actual filing of this case, and during their handling of other, similar litigation.
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Counsel are prepared to commit the resources necessary to the successful prosecution of this case.
While Mr. Cunningham has relocated his offices from Washington, D.C. in May, 2005 to Dubois, Wyoming, Mr. Wolfe remains physically located in Washington, D.C. and the two attorneys remain in close touch telephonically and by electronic mail, as otherwise. Mr. Cunningham is prepared to travel to Washington, D.C. as the case requires, or to participate in meetings held in D.C. by telephone or in person, as needed.
RULE 23(b)(3): PREDOMINANCE OF COMMON QUESTIONS AND SUPERIORITY OF CLASS TREATMENT
Next, plaintiffs show, as required under Rule 23(b)(3), the predominance of questions of law and fact which are common to the class and the superiority of a class action for treatment of the claims raised herein. Questions Common to the Class Predominate.
As discussed above, the common issues predominate over any individual issues. The only significant individual factual issue is the amount of damages for each member of the class. However, the existence of individual damage calculations does not make individual damages predominate over the common issues. McCarthy v. Kleindienst, 239 U.S. App. D.C. 247, 741 F.2d 1406, 1410, 1413(D.C. Cir. 1984)(class certification permissible even in the presence of individual damages claims). Bynum v. D.C., supra at 49; Gary v. Sheehan, 199 U.S. Dist. LEXIS 5616 (N.D. Ill.)(District Court denied defendants’ motion to decertify the class of women arrestees subject to blanket strip search, as to damages.); Smilow v. Southwestern Bell Mobile
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System 323 F.3d 32, 39-40(1st Cir. 2003); In re Visa Check/Mastermoney Antitrust Litigation, 280 F.3d 124 (2d Cir. 2001), cert. denied, Visa U.S.A. Inc. v. Wal-Mart Stores, Inc., 536 U.S. 917 (2002); Mejdrech v. Met-Coil Systems Corp., 319 F.3d 910, 912 (7th Cir. 2003).
Treatment as a Class Action Is Superior. The primary consideration in determining whether a class action is “superior” is the
availability and viability of other possible ways of handing the claims raised. Handling this matter through a series of individual cases is a possible, but inferior alternative. First, the individual class members are widely dispersed geographically. Second, the filing of individual claims, possibly through the retainer of separate counsel, risks the Court entering different relief for different individual plaintiffs. Third, the Court and counsel would have to make a wide array of duplicate findings of fact and conclusions of law in a series of individual actions. Damages in individual cases may be inadequate to attract sufficient counsel to represent individuals on a case-by-case basis. Moreover, even if separate counsel were available, managing dozens of individually filed lawsuits would create a serious administrative challenge for the Court, as well as for the array of counsel needed to handle the series of cases. In short, the class action is the superior proceeding.
Another alternative is for the Court to bifurcate the liability and damages phases of the case, certify a class for liability purposes, and then require the parties to try the damages claims for each individual claim. Several mass damages claims such as this have been tried using sample trials to determine the amount of damages liability. Hilao v. Estate of Marcos,
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103 F.3d 767 (9th Cir. 1996). Determination of damages is manageable without destroying the cohesiveness of the class because damages can be determined by: (1) establishing class-wide damages on an aggregate basis in a single trial using a schedule or statistical sampling, (2) by mini-trials before judges or magistrates; or, (3) by a claims procedure agreed upon by the parties. See, Neal v. Director, D.C. Dep't of Corrections, 1995 U.S. Dist. LEXIS 11543 (D.D.C. 1995) (discussing methods of establishing damages for class members after liability determination). There is a trend in favor of using such aggregate damage trials. 3 Newberg 10.5 at 483-487 (4th ed. 2002); Blue Cross & Blue Shield of N.J., Inc. v. Philip Morris, Inc., 133 F. Supp. 2d 162, 169 (E.D.N.Y. 2001); Long v. Trans World Airlines, Inc., 761 F. Supp. 1320, 1326 (N.D. Ill. 1991); Langley v. Coughlin, 715 F. Supp. 522, 531 (S.D.N.Y. 1989); A Model Plan To Resolve Federal Class Action Cases By Jury Trial, 88 VA. L. REV. 405 (2002).
In short, once liability is established in a case such as this, where the individual class members were subjected to essentially the same strip searches at the same time, trial of the amount of damages for each class member should prove highly manageable.
Nature and Extent of Any Litigation Already Commenced For reasons unknown to plaintiffs’ counsel or to the named plaintiffs, the other litigation
already commenced with regard to claims arising from the mass protests held on September 27, 2002 in Washington, D.C. have not addressed the claims raised herein. Many months have passed since those cases were filed, yet the parties in those cases apparently have chosen not to raise the claims made herein. Thus, those lawsuits will not result in issue preclusion for the
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claims herein, nor provide the specific relief sought herein. Accordingly, no reason exists under FRCP Rule 23 to prevent this matter going forward while the other litigation is pending.
Desirability of concentrating the Litigation in One Forum This case and the other related cases are all filed in the forum covering the venue where
the mass protests took place and where the actions of defendants in response to the mass protests occurred. There is no other forum that would be more appropriate. Individual members of the proposed class are dispersed geographically throughout the country. Indeed, two of the three named plaintiffs reside within the State of Wisconsin, and the third resides in Colorado. They have consented to filing the action in this forum.
The Class is Manageable. As stated, there are no individual questions on the issue of liability regarding the class of
plaintiffs because apparently none of the defendants kept records of the searches complained of, and therefore none of the defendants can show that any of the searches were conducted based on an individual determination of reasonable suspicion. The only facts which plaintiffs will have to show are the circumstances of the arrests and detention, the practice of the strip searches, and membership in the class. Plaintiffs can establish membership from a ministerial inspection of the computer and paper records maintained by defendants of the arrests of protestors held on September 27, 2002. The other facts will not be seriously in dispute and can readily be proven. The only individual questions will be questions of the amount damages and those questions can be accommodated through class treatment of the claims, as discussed above.
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NOTICE PROPOSALS FRCP Rule 23 (c)(2)(B) requires that the “[C]ourt must direct to the class members the best notice practicable...”. Plaintiffs propose that defendants provide to plaintiffs’ counsel all paper and electronic data in their possession, in a form useable by plaintiffs, relating to every class member arrested on September 27, 2002 at the relevant protests. This information is already in the possession of the Defendants, and may already have been provided in the related cases. The proposed Order filed with this motion would require defendants to provide plaintiffs’ counsel with these records so that notice could be sent to the members of the class. Plaintiffs further propose drafting a notice satisfying the requirements of Rule 23 and LCvR 23.1, subject to review by defendants, and mailing the notice to all class members. Since the class is relatively small, apparently less than 100 persons, a mailing by counsel will be relatively simple. Plaintiffs propose that the notice direct recipients to respond to plaintiffs’ counsel at one of their offices. Plaintiffs further propose that Defendants pay for the cost of mailing out the notice, as provided in the proposed Order. In addition, plaintiffs propose to create a website for the case to provide members of the proposed class information about contacting plaintiffs’ counsel and to obtain information about the case. It may be possible to link this proposed website to the other websites already up which are providing information to members of the other classes already certified in the related cases.
CONCLUSION For the foregoing reasons, the Named Plaintiffs’ motion for class certification pursuant to Rule 23(a), 23(b)(3) should be granted.
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Respectfully submitted,

/s/ Lynn E. Cunningham Lynn E. Cunningham, Esq. D.C. Bar No. 221598 P.O. Box 1547 Dubois, Wyoming 82513 Phone: 307-455-3334/3374 Fax: 307-455-3334 Email: lcunningham@law.gwu.edu
Zachary Wolfe, Esq. D.C. Bar No. 463548 People’s Law Resource Center 1725 I Street, NW, Suite 300 Washington, DC 20006 Phone: 202 265 5965 email: zwolfe@peopleslawresourcecenter.org

LIST OF EXHIBITS

Exhibit # 1 2
3 4 5

Description of Exhibit Lock Up Lists Affirmation of Lynn E. Cunningham in support of Motion for Class Certification Resume of Lynn E. Cunningham Affirmation of Zachary Wolfe in support of Motion for Class Certification Resume of Zachary Wolfe

25

 
 Case 1:05-cv-01833-RMC Document 30-1 Filed 04/19/2006 Page 1 of 29

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

PAUL BAME, et al.,
Plaintiffs,
v.
JOHN F. CLARK, et al., Acting Director, U.S. Marshals Service,
Defendants.

) ) ) ) ) Civil Action No. 05-1833 RMC ) ) ) ) ) ) )

MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT

The Named Defendants, the Acting Director of the United

States Marshals Service (John F. Clark), the United States

Marshal for the Superior Court of the District of Columbia (Steve

Conboy), and former United States Marshal for the Superior Court

of the District of Columbia (Todd Dillard), by and through

counsel, hereby move pursuant to Fed. R. Civ. P. 12(b)(1) and (6)

to dismiss this action. In the alternative, the Named Defendants

move for summary judgment in their favor, pursuant to Fed. R.

Civ. P. 56. The Court is respectfully referred to the

Case 1:05-cv-01833-RMC Document 30-1 Filed 04/19/2006 Page 2 of 29 accompanying memorandum of points and authorities in support of this motion.
Respectfully submitted, KENNETH L. WAINSTEIN, DC Bar #451058 United States Attorney RUDOLPH CONTRERAS, DC Bar #434122 Assistant United States Attorney W. MARK NEBEKER, DC Bar #396739 Assistant United States Attorney
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

PAUL BAME, et al.,
Plaintiffs,
v.
JOHN F. CLARK, et al., Acting Director, U.S. Marshals Service,
Defendants.

) ) ) ) ) Civil Action No. 05-1833 RMC ) ) ) ) ) ) )

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT INTRODUCTION Plaintiffs, Paul Bame, Gregory Keltner and Ivan Welander
have brought this purported class action on behalf of themselves and in what they argue is a representative capacity for other men who were allegedly subject to a strip search after being arrested on September 27, 2002, during several large protests against International Monetary Fund (“IMF”) policies. See Amended Complaint, ¶¶ 1, 4-6, 12, 15. John F. Clark and Steve Conboy are each sued only in their official capacities; Todd Dillard is sued only in his individual capacity. Id., ¶¶ 7-9.
The specific relief sought beyond certification of a class, is the award of damages and an award of attorneys’ fees and costs pursuant to 42 U.S.C. § 1988. Amended Complaint at 16. The official capacity claims (i.e. those against Defendants Clark and Conboy) are subject to dismissal because there has been no waiver

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of sovereign immunity for such claims. In any event, the claims under 42 U.S.C. § 1983 are subject to dismissal because such claims apply only to actions by persons acting under color of state law, and the defendants were acting under color of federal law. Any Bivens1 claim is subject to dismissal as untimely. Insofar as Plaintiffs may seek to pursue Bivens claims on behalf of anyone who identified themselves to police as required by law, they lack standing to pursue such a claim. Finally, the Bivens defendant would, at a minimum, enjoy qualified immunity for any claim that he allowed strip searches of the arrestees entering the Superior Court cell block who refused to identify themselves to police.
ARGUMENT Sovereign immunity and limitations of Section 1983 Plaintiffs’ official capacity claims (i.e. those against defendants Clark and Conboy) are subject to dismissal because there has been no waiver of sovereign immunity for a money damages claim against the sovereign for a purported violation of a Constitutional right, and an action under 42 U.S.C. § 1983 explicitly applies to those persons who, while acting under color of the law of any State, Territory, or the District of Columbia
1 See Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).
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(collectively the “State”), violate the protected constitutional
or federal statutory right of another.
Plaintiffs seek only monetary relief in this action for an
asserted violation of a constitutional right. See Complaint, ¶¶
52, 58. There has been no waiver of sovereign immunity for such
a claim. FDIC v. Meyer, 510 U.S. 471, 478 (1994) (a
constitutional tort claim is not cognizable under the FTCA);
Settles v. U.S. Parole Commission, 429 F.3d 1098, 1106 (D.C. Cir.
2005) (sovereign immunity bars Section 1983 claims against a
government agency); Kauffman v. Anglo-American School of Sofia,
28 F.3d 1223 (D.C. Cir. 1994); Clark v. Library of Congress, 750
F.2d 89, 102-104 (D.C. Cir. 1984) (sovereign immunity acts as a
bar to a damages remedy against a federal employee in an official
capacity).
In any event, Section 1983 provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges or immunities secured by the Constitution and laws, shall be liable to the person injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.
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42 U.S.C. § 1983 (emphasis added). Thus, § 1983 does not generally apply to federal officials
acting under color of federal law. See Daly-Murphy v. Winston, 837 F.2d 348, 355 (9th Cir. 1987). Rather, by its terms, § 1983 applies only to actions under color of state law and does not ordinarily provide a basis for claims against federal officials. The only possible exception occurs when there is a conspiracy between state and federal officials resulting in an abuse of authority derived from state law. Kletschka v. Driver, 411 F.2d 436, 448 (2d Cir. 1969).
Not only has there been no waiver of sovereign immunity, as made clear in Settles, but the Federal Government and its officials in their official capacities are not even “persons” within the meaning of the Section 1983. Section 1983 permits suit against a "person" acting under color of law of any state. The United States Marshals Service is not a "person" for purposes of this statute, and therefore cannot be sued under § 1983. See Al Fayad v. C.I.A., 229 F.3d 272 (D.C. Cir. 2000) (government is not a "person" absent affirmative evidence in statute of intent to include sovereign government within term). See also Hindes v. FDIC, 137 F.3d 148, 158 (3d Cir. 1998) ("We find no authority to support the conclusion that a federal agency is a ‘person' subject to section 1983 liability, whether or not in an alleged conspiracy with state actors. We, therefore, hold that federal
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agencies are not ‘persons' subject to section 1983 liability."); Hoffman v. U.S. Dep't of Housing & Urban Dev., 519 F.2d 1160, 1165 (5th Cir. 1975) ("a federal agency is also excluded from the scope of section 1983 liability"). When sued in their official capacities, government officials are not personally liable for damages; rather the damages action is equivalent to one against the government itself. See Atchinson v. District of Columbia, 73 F.3d 418, 424 (D.C. Cir. 1996). That plaintiffs may have named (or sought to name) federal employees as defendants in their official capacities does not operate to evade the immunity of the sovereign. See Clark v. Library of Congress, 750 F.2d at 102-104.
The legislative history clearly shows that Congress did not intend for Section 1983 to apply against federal actors. Instead, it was promulgated to provide a measure of federal control over state officials who were either unwilling or unable to protect certain individuals against the deprivation of their constitutional rights. Section 1983 provided a remedy where none existed. It provided a mechanism to protect against a state official’s conduct.
The named defendants in the instant action are alleged to have operated as current or former officers of the United States Marshals Service. See Amended Complaint, Caption and ¶¶ 1, 7-10.
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As such, these officers would have acted under color of federal law, specifically under color of 28 U.S.C. §§ 561-569.2
Congress, in describing a 1979 amendment to Section 1983 “makes clear that Federal courts shall have jurisdiction of section 1983 actions against District of Columbia officials acting under authority of local laws, even if those laws were passed by Congress.” H.R. Rep. No. 96-548, at 2 (1979), reprinted in 1979 U.S.C.C.A.N. 2609, 2610.
Thus, the words and history of Section 1983, including the 1979 amendment do not provide for a cause of action under Section 1983 under the circumstances described in plaintiffs’ Amended Complaint. The purpose of Section 1983 was to provide a cause of action where there was none. Indeed, Congress in 1979 did just that when it again provided individuals within the District of Columbia with a remedy for the deprivation of protected rights where there was none before. In the instant case, plaintiffs’ remedy, if one exists, was created by the Supreme Court in Bivens. Under proper circumstances, Plaintiffs may pursue a Fourth Amendment claim under the Bivens doctrine against a
2 It is worthy of note that the authority of United States Marshals and Deputy U.S. Marshals extends beyond the District of Columbia (or whatever district in which they primarily work), to any state in which they may execute the laws of the United States. 28 U.S.C. § 564; United States v. Boettcher, 588 F.2d 89 (4th Cir. 1978) (U.S. Marshal may execute arrest warrants at any place within jurisdiction of the United States); United States v. Hanna, 114 WLR 1153 (Super. Ct. 1986)(noting extraterritorial nature of certain Superior Court warrants).
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federal employee in his or her individual capacity, but not a Section 1983 action. See e.g., Berry v. Funk, 146 F.3d 1003, 1013 (D.C. Cir. 1998) (noting that plaintiffs can bring Bivens actions against federal officials and section 1983 actions against state officials); McCord v. Bailey, 636 F.2d 606, 613 (D.C. Cir. 1980) (“Actions of federal officers are outside of [section 1983's] proscriptions.”); Kingsley v. Bureau of Prisons, 937 F.2d 26, 30 n. 4 (2nd Cir. 1991) (an action brought pursuant to Section 1983 “cannot lie against federal officials”); Heck v. Humphrey, 512 U.S. 477 (1994) (stating that section 1983 provides access to a federal forum for claims of unconstitutional treatment at the hands of state officials); Community For Creative Non-Violence v. Unknown Agents of the United States Marshals Service, 791 F. Supp. 1 (D.D.C. 1992) (the United States Marshals Service for the Superior Court of the District of Columbia was acting under color of federal law when Deputy Marshals executed an arrest warrant issued by the D.C. Superior Court).
The traditional definition of acting under color of state law requires that the defendant in a § 1983 action have exercised power "possessed by virtue of state law and made possible only because the alleged wrongdoer is clothed with the authority of state law.” Williams v. United States of America, 396 F.3d 412, 414 (D.C. Cir. 2005) (emphasis added) (quoting United States v.
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Classic, 313 U.S. 299, 326 (1941)); West v. Adkins, 487 U.S. 42, 49 (1988); accord Monroe v. Pape, 365 U.S. 167, 187 (1961) (adopting Classic standard for purposes of § 1983) (overruled in part on other grounds); Monell v. New York City Dept. of Social Services, 436 U.S. 658, 695-701 (1978)); Polk County v. Dodson, 454 U.S. 312, 317-18 (1981).
The Williams court held that a Section 1983 action could not be maintained against a special police officer employed by the U.S. Government Printing Office, who allegedly unlawfully arrested appellant. Id. at 413. The Government Printing Office is a federal agency which employed the appellee as a special policeman. Id. Federal law authorized these policemen to
make arrest[s] for violations of laws of the United States, the several States, and the District of Columbia; and enforce the regulations of the Public Printer, including the removal from Government printing office premises of individuals who violate such regulations. The jurisdiction of special policemen in premises occupied by or under the control of the Government Printing Office and adjacent areas shall be concurrent with the jurisdiction of the respective law enforcement agencies where the premises are located. Id. (citing 44 U.S.C. § 317). Williams, was arrested by Officer Hardwick and thereafter alleged the deprivation of his Fourth and Fifth Amendment rights in violation of Section 1983. The Court rejected Williams’ contention holding that Williams could not maintain a cause of action against the officer under Section 1983 and noting that “plaintiffs alleging abuse by federal officials
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are not without a remedy. . . as Williams could have brought an action against Hardwick under Bivens. . .” Id., at 416.
To constitute state action, “the deprivation must be caused by the exercise of some right or privilege created by the State . . . or by a person for whom the State is responsible,” and “the party charged with the deprivation must be a person who may fairly be said to be a state actor.” Id. “[S]tate employment is generally sufficient to render the defendant a state actor.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 936, n. 18, 937 (1982); see also Williams, supra., at 414-16. Moreover, a defendant in a § 1983 suit acts under color of state law when he abuses the position given to him by the State. See Monroe v. Pape, 365 U.S. at 172. Thus, generally, "a public employee acts under color of state law while acting in his official capacity or while exercising his responsibilities pursuant to state law. See, e.g., Parratt v. Taylor, 451 U.S. 527, 535-536 (1981); Adickes v. S.H. Kress & Co., 398 U.S. 144, 152 (1970).
The Ninth Circuit in Tongol v. Usery, 601 F.2d 1091 (9th Cir. 1979), discussed the “color of state law” requirement. Tongol involved state officials who sought to recover overpayments of Federal Supplemental Benefits (“FSB”) under the Emergency Unemployment Compensation Act of 1974. Id. at 1097. The Court held that the state officials who sought to recover these FSB overpayments were empowered to act only by virtue of
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their authority under state law. Id. The Court went on to hold that “the ‘color of state law’ requirement of section 1983 has consistently been treated as the same thing as the ‘state action’ requirement of the Fourteenth Amendment. [citations omitted]. Id. at 1095. Courts applying the ‘color of state law’ requirement have indicated that the relevant inquiry focuses not on whose law is being implemented, but rather on whether the authority of the state was exerted in enforcing the law. [citations omitted].” Id. at 1097.
The Third Circuit has held that “there [i]s no set formula for determining whether the employees of an agency with both state and federal characteristics must be examined to consider whether the acts complained of were sufficiently linked to the state.” Johnson v. Orr, 780 F.2d 386, 390 (3rd Cir. 1986). “A crucial inquiry is ‘whether day-to-day operations are supervised by the Federal [or state] government.’” United States v. Orleans, 425 U.S. 807, 815 (1976).
In Case v. Milewski, 327 F. 3d 564, 567 (7th Cir. 2003), the court recognized two circumstances in which a party may be found to act under color of state law. The first is when the states have cloaked the defendants in some degree of authority, normally through employment or some other agency relationship. Id. at 567; see Yang v. Hardin, 37, F.3d 282, 284 (7th Cir. 1994)(finding that Chicago police officers were acting under
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color of state law when “[t]hey were on duty, wearing Chicago police uniforms, driving a marked squad car and were investigating a crime.”); Pickrel v. City of Springfield, Illinois, 45 F.3d 1115, 1118 (7th Cir. 1995) (finding an off-duty Springfield, Illinois police officer could have been acting under color of state law because he was wearing his police uniform and displaying his badge.)
The second circumstance is when the defendants have conspired or acted in concert with state officials to deprive a person of his civil rights. In order to establish a conspiracy, the party must demonstrate that the state officials and the private party somehow reached an understanding to deny a party of his constitutional rights. Case, 327 F.3d 564, 567 [citations omitted]. The court further acknowledged that “although an action brought pursuant to § 1983 cannot lie against federal officers acting under color of federal law, it is assumed that a § 1983 action can lie against federal employees . . . as it can against private individuals . . . if they conspire or act in concert with state officials to deprive a person of her civil rights under color of state law.” (emphasis added).
When distinguishing between federal and state actors, “[a] crucial inquiry is ‘whether day-to-day operations are supervised by the Federal [or state] government.’” Johnson v. Orr, 780 F.2d 386, 390 (3rd Cir. 1986). The Deputy Marshals are supervised and
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controlled by the U.S. Marshals Service not the District of
Columbia. Even the D.C. Statute acknowledging that the Marshals
Service “serves the courts of the District of Columbia,” also
confirms that such service is “subject to the supervision of the
Attorney General of the United States.” D.C. Code § 11-1729.
Indeed, the Plaintiffs admit that “[i]ndividual defendants were
following USMS and USMDC policy, customs, and practices. . . and
[a]t all relevant times individual defendants were acting within
the scope of their employment, their acts were motivated by a
desire to further the interests of the USMS and USMDC.” Amended Complaint, ¶¶ 44-45.3 Accordingly, Counts Two, Three and Four
should be dismissed.
Any Bivens Claim Is Untimely.
Defendants submit that the one-year statute of limitations
governs Plaintiffs’ Bivens claims.
When a federal action contains no statute of limitations, courts will ordinarily look to analogous
3 Although the plaintiffs also aver that they were proceeding “under color of District of Columbia law,” Amended Complaint, ¶ 46, the Court need not accept legal conclusions cast in the form of factual allegations. Lowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). Where the Court need only take judicial notice of the statutes providing the authority for the U.S. Marshals to act, it is clear that there exists no factual dispute on the issue. Similarly, because the Plaintiffs themselves admit that the acts of which they complain only occurred after the D.C. police relinquished custody of the plaintiffs to federal authorities and pursuant to the Federal policies, see Amended Complaint, ¶¶ 44, 46, there is no basis for their claim that they acted as agents of the District of Columbia.
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provisions in state law as a source of a federal limitations period. See, e.g., Burnett v. Grattan, 468 U.S. ----, 104 S.Ct. 2924, 2929, 82 L.Ed.2d 36 (1984); Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 464, 95 S.Ct. 1716, 1722, 44 L.Ed.2d 295 (1975); Brown v. United States, 742 F.2d 1498, 1503 (D.C. Cir. 1984) (en banc). Concluding that "damage to reputation ... is central to the [plaintiff's] claim," Opinion at 2, the district court applied the District of Columbia's one year statute of limitations governing defamation actions to Doe's Bivens suit. See D.C. Code § 12-301(4). The D.C. statute of limitations reads, in relevant part: Except as otherwise specifically provided by law, actions for the following purposes may not be brought after the expiration of the period specified below from the time the right to maintain the action accrues:. . .(4) for libel, slander, assault, battery, mayhem, wounding, malicious prosecution, false arrest or false imprisonment -- 1 year; . . .(8) for which a limitation is not otherwise specially prescribed--3 years. D.C. Code § 12-301. We agree with the district court that the one year limitations period should be applied.
Doe v. United States Department of Justice, 753 F.2d 1092, 1114 &
n.28 (D.C. Cir. 1985) (footnote inserted into text). Here, the
allegedly unlawful action took place in September 2002. See
Amended Complaint, ¶¶ 11-12. The original complaint was not
filed until 2005, well beyond the one-year limitations period.4
4 Defendants recognize that the Supreme Court has reached a different conclusion in addressing Section 1983 actions. See Wilson v. Garcia, 471 U.S. 261, 271-72 (1985) (applying statutory construction principles to Section 1983 and concluding that the personal injury limitations period would presumably apply). A Bivens action, however, is not created by statute; and plaintiffs’ claims are most like those described in D.C. Code § 12-301(4). See Banks v. Chesapeake and Potomac Telephone Co., 802 F.2d 1416, 1429, (D.C. Cir. 1986) (citing McClam, 697 F.2d at 372-74). Courts in other jurisdictions have, in defendants’ view, incorrectly assumed that the statutory analysis applied in Wilson should also be applied in the Bivens context. See e.g., Harris v. United States, 422 F.3d 322, 331 (6th Cir. 2005). To
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See McClam v. Barry, 697 F.2d 366, 372-74 (D.C. Cir. 1983) (false arrest claim most closely analogous to a claim under D.C. Code § 12-301(4)). Thus, Count One is subject to dismissal as untimely.
Plaintiffs Lack Standing to Pursue Claims of Those Who Identified Themselves to Police. The named plaintiffs, Paul Bame, Gregory Keltner and Ivan Welander, allege that they were among those arrested, yet their names do not appear on the Lock Up lists which they have attached to Plaintiff’s Motion For Class Certification. Thus, if as the individual plaintiffs allege, they were arrested during the IMF demonstrations and remanded to the custody of the U.S. Marshals Service, then each of them must be listed on the Lock Up lists as “John Doe.” Plaintiffs’ Exhibit 1 (attached to Plaintiffs’ Motion For Class Certification).5 This significant detail regarding the individual plaintiffs makes them unlike any of the men whom they seek to represent who properly identified
defendants’ knowledge this Circuit has not accepted this invitation to treat Bivens claims as if they are subject to the statutory analysis applied in Wilson. Bivens claims are uniquely creatures of Federal common law, and as such they cannot and should not be treated uniformly, as contemplated in Wilson. Instead, local law has elected to separate common law claims as subject to differing limitations periods, depending on the nature of the claim. This practice should continue to be followed unless and until the District of Columbia adopts a separate limitations period for Bivens claims. See Banks v. Chesapeake and Potomac Telephone Co., 802 F.2d at 1429.
5 The Lock Up Lists contain the names of 54 men identified only as John Doe, but no Paul Bame, Gregory Keltner or Ivan Welander.
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themselves when arrested, as required by District of Columbia law. See D.C. Code § 50-2303.07 (formerly D.C. Code § 40-627); see also Barnett v. United States, 525 A.2d 197, 199 and n.6 (D.C. 1987) (A pedestrian who refuses to provide his or her name and address to a police officer upon request after having been stopped for committing an infraction shall, upon conviction, be fined; and violations shall continue to be prosecuted as criminal offenses).
The Supreme Court has disfavored across-the-board class actions as a typical mechanism to pursue civil rights actions. See General Telephone Co. v. Falcon, 457 U.S. 147 (1982); East Texas Motor Freight Systems, Inc. v. Rodriques, 431 U.S. 395 (1977). These cases firmly establish that the "class representative [must] be part of the class and possess the same interest and suffer the same injury as the class members." Falcon, 457 U.S. at 156 (emphasis added); Rodriques, 431 U.S. at 403 (emphasis added). Here, the individual plaintiffs do not possess the same interests as those of the arrestees who lawfully identified themselves to the proper authorities upon being arrested. Instead, they possess only a lesser interest to be free from more intrusive searches upon arrest, because one may logically infer that someone who is refusing to abide by a law requiring them to identify themselves to police reasonably may be attempting to hide something. Under those circumstances, the
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plaintiffs are less likely to diligently pursue claims other than those which would benefit the “John Doe” arrestees. In this respect, the individual plaintiffs fail to satisfy the requirements of Fed. R. Civ. P. 23(a); and they lack standing to pursue claims on behalf of the arrestees who provided their names. See Blum v. Yaretsky, 457 U.S. 991 (1982) (class representatives who had been transferred to lower levels of medical care lacked standing to challenge transfers to higher levels of care); Defendants’ April 3, 2006 Opposition To Motion For Class Certification at 19-23; see also Thomas v. Albright, 139 F.3d 227, 236 (D.C. Cir. 1998). (The purpose of the requirement that representative parties are typical of the claims or defenses of the class is to ensure "that the class representatives have suffered injuries in the same general fashion as absent class members."). Thus, the Court should dismiss all claims other than those brought by arrestees who were identified only as “John Does.”
Defendant Dillard has, at a minimum, qualified immunity for any claim that he allowed strip searches of the IMF arrestees entering the Superior Court cell block who refused to identify themselves as required by law. Qualified immunity protects government officials "from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v.
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Fitzgerald, 457 U.S. 800, 818 (1982). It is well settled that government officials such as the individual defendants in this case enjoy a qualified immunity from constitutional and statutory claims against them. See, Saucier v. Katz, 533 U.S. 194, 200-01 (2001); Anderson v. Creighton, 483 U.S. 635, 640 (1987); Cleavinger v. Saxner, 474 U.S. 193, 206 (1985); Mitchell v. Forsyth, 472 U.S. 511, 526 (1985); Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The qualified immunity analysis was explained in Harlow:
government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate "clearly established" statutory or constitutional rights of which a reasonable person would have known. 457 U.S. at 818. And, a defendant's subjective good faith is not relevant to the qualified immunity analysis, id. at 815-18; rather in making this assessment, the Supreme Court said a right is clearly established when "it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Saucier, 533 U.S. at 202. Conversely, an official is not shielded from liability where he "could be expected to know that certain conduct would violate statutory or constitutional rights." See Farmer v. Moritsugu, 163 F.3d 610, 613 (D.C. Cir. 1998); accord Siegert v. Gilley, 500 U.S. 226, 231-32 (1991) (A necessary concomitant to the determination of whether the constitutional right asserted by a plaintiff is
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"clearly established" at the time the defendant acted is the determination of whether the plaintiff has asserted a violation of a constitutional right at all); see also Fernandors v. District of Columbia 382 F.Supp.2d 63, 70-71 (D.D.C. 2005); see also Wilson v. Layne, 526 U.S. 603, 609 (1999)(a court performing a qualified immunity inquiry must first determine whether the plaintiff has alleged the deprivation of an actual constitutional right.).
The whole purpose of qualified immunity is to protect public officials "from the costs associated with the defense of damages actions" by rooting out meritless lawsuits at the earliest point possible in the litigation process. Crawford-El v. Britton, 523 U.S. 574, 590 (1998). As the Supreme Court explained in Davis v. Scherer, 468 U.S. 183, 197 (1984), "[a] plaintiff who seeks damages for violation of constitutional or statutory rights may overcome the defendant official's qualified immunity only by showing that those rights were clearly established at the time of the conduct at issue." Moreover, "[e]ven defendants who violate constitutional rights enjoy a qualified immunity that protects them from liability for damages unless it is further demonstrated that their conduct was unreasonable under the applicable standard." Id. at 190.
Thus, in developing the doctrine of qualified immunity, the Supreme Court has sought to strike a balance "between the interests in vindication of citizens' constitutional rights and
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in public officials' effective performance of their duties." Anderson v. Creighton, 483 U.S. 635, 639 (1987) (quotation omitted). Recognizing that "bare allegations of malice should not suffice to subject government officials either to the costs of trial or to the burdens of broad-reaching discovery," Harlow, 457 U.S. at 817-18, the Court balanced those competing interests by establishing a higher threshold for holding public officials personally liable for constitutional violations. For a public official to be liable for damages, that official must have violated a constitutional right, and that right must have been "clearly established" -- "[t]he contours of the right must be sufficiently clear that a reasonable official would understand what he is doing violates that right." Anderson, 483 U.S. at 640. ("qualified immunity protects ‘all but the plainly incompetent or those who knowingly violate the law'") (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).
Numerous circuits have placed the burden on plaintiff to come forward with evidence sufficient to create genuine issue as to whether defendant's conduct was objectively reasonable in light of clearly established law. See, e.g., Salas v. Carpenter, 980 F.2d 299 (5th Cir. 1992); Washington v. Newsom, 977 F.2d 991 (6th Cir. 1992); Stewart v. Baldwin County Bd. of Educ., 908 F.2d 1499 (11th Cir. 1990); Hannon v. Turnage, 892 F.2d 653 (7th Cir. 1990); Pleasant v. Lovell, 876 F.2d 787 (10th Cir. 1989). And a
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court performing a qualified immunity inquiry "must first determine whether the plaintiff has alleged the deprivation of an actual constitutional right." Wilson v. Layne, 526 U.S. at 609. The Supreme Court has instructed that deciding whether a constitutional right was violated first, rather than asking whether the right was clearly established, "promotes clarity in the legal standards for official conduct, to the benefit of both the officers and the general public." Id. The validity of the qualified immunity analysis "depends substantially upon the level of generality at which the relevant ‘legal rule’ is to be identified." Anderson, 483 U.S. at 639. At the first stage of the inquiry, "courts must not define the relevant constitutional right in overly general terms, lest they strip the qualified immunity defense of all meaning." Butera v. District of Columbia, 235 F.3d 637, 646 (D.C. Cir. 2001). Thus, while one must concede that citizens enjoy a constitutional right to be free from unreasonable searches, it is equally clear that once a person is arrested, they are subject to search incident to that arrest. Chimel v. California, 395 U.S. 752, 763 (1969), and strip searches based on less than probable cause do not violate the Fourth Amendment; rather “the Fourth Amendment prohibits only unreasonable searches, and under the circumstances, we do not believe that these searches are unreasonable.” Bell v. Wolfish
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441 U.S. 520, 558 (1979) (citing Carroll v. United States, 267 U.S. 132, 147 (1925)).
Admittedly, courts have required more than a whim to support such a search, but under the circumstances presented by the individual plaintiffs, like all of the “John Doe” IMF arrestees on September 27, 2002, it cannot be said that no reasonable law enforcement officer could have believed that the searches were proper. The circumstances included announced efforts by protest groups to close Washington, DC. See The People’s Strike: A Day of Non-Compliance and Resistance, (Exhibit A) (available at http:www.abolishthebank.org/strike_archive.shtml) (last accessed April 19, 2006) (“. . . in the city hailed as the capital of the free world we call for a People’s Strike to shut down this machine and take back our freedom on September 27, 2002!. . . People are getting organized and making plans to shut the city down for a day and effectively stop business as usual”). At this same time, hundreds of protesters were being arrested in the city and many, like the plaintiffs, refused to properly identify themselves, as required by District of Columbia law, leaving law enforcement in the dark regarding whether their histories include numerous weapons or drug offenses. See Amended Complaint, ¶¶ 1, 11-12; Lock Up Lists (Plaintiff’s Exhibit 1 to Motion For Class Certification). The Marshals would not have been able to
-21-

Case 1:05-cv-01833-RMC Document 30-1 Filed 04/19/2006 Page 24 of 29
identify these individuals other than as “John Does,” leaving it
a complete mystery what their actual criminal histories or drug histories were.6
At the time of the alleged strip searches in this case, the
law was not clearly established and remains unclear today,
whether one refusing a lawful request to identify himself can be
presumed to be hiding something about himself, and whether that
reasonably could be interpreted as a penchant to hide weapons,
drugs or any form of contraband. Indeed, as to those lawfully
confined, a specific basis for concern about contraband could
reasonably support strip searches, even absent a basis for
individualized suspicion. See, N.G. And S.G. v. State of
Connecticut, 382 F.3d 225, 232 (2d Cir. 2004). And here, reports
indicate a penchant for those being processed through the
6 Public records, for instance, would appear to identify Plaintiff Paul Bame as having posted on the worldwide web a recipe for producing an explosive “black powder”, see http://www.florilegium.org/files/COMBAT/blackpowder-msg.text, and Plaintiff Ivan Welander, as carrying a knife. See http://www.madison.com/archives/read.php?ref=/tct/2003/03/28/9354 72.php (accessed April 19, 2006); and a “twenty-three-year-old Greg Keltner, drug-dealer, wannabe musician. . .” http://theband.hiof.no/books/mfbp_book_john_niven.html (accessed April 19, 2006) (Exhibit B). Defendants do not intend to imply that these types of facts are required before one can establish a proper showing to warrant a strip search, but these are illustrative of the things that one may seek to hide from the authorities by refusing to identify oneself to law enforcement in the face of a statute requiring such identification. This is why a reasonable law enforcement officer might infer that an arrestee who refuses to provide identifying information may be presumed to be hiding something of significance.
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Superior Court Cell Block to secret contraband. See Defendants’ Notices of Filing dated April 5, 2006 and April 17, 2006.
The Supreme Court had concluded long ago that in the prison context, such searches do not necessarily violate the Fourth Amendment. Bell v. Wolfish 441 U.S. at 558. Although on-thestreet strip searches have more recently been looked on with disfavor, see Fernandors v. District of Columbia 382 F.Supp.2d at 70-71, and other circuits have concluded that such searches in rooms with broken blinds are unwarranted, see Logan v. Shealy, 660 F.2d 1007 (4th Cir. 1981), the circumstances and law in this Circuit would not support a Fourth Amendment violation. Here, the arrestees were allegedly taken in small groups into a room not accessible to the public and apparently not subject to view by the hundreds of other arrestees, a “separate holding area.” See Amended Complaint, ¶¶ 22-23.
Under the circumstances, a reasonable law enforcement officer may well have believed the actions taken under these circumstances were proper. See, e.g., Bell v. Wolfish, supra; N.G. And S.G. v. State of Connecticut, 382 F.3d at 232. Thus, qualified immunity protects against a claim under the facts alleged in the Amended Complaint.
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Case 1:05-cv-01833-RMC Document 30-1 Filed 04/19/2006 Page 26 of 29 CONCLUSION
WHEREFORE, the above civil action should be dismissed, or summary judgment entered in favor of the defendants.
Respectfully submitted,
KENNETH L. WAINSTEIN, DC Bar #451058 United States Attorney RUDOLPH CONTRERAS, DC Bar #434122 Assistant United States Attorney W. MARK NEBEKER, DC Bar #396739 Assistant United States Attorney
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Case 1:05-cv-01833-RMC Document 30-1 Filed 04/19/2006 Page 27 of 29

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

PAUL BAME, et al.,
Plaintiffs,
v.
JOHN F. CLARK, et al., Acting Director, U.S. Marshals Service,
Defendants.

) ) ) ) ) Civil Action No. 05-1833 RMC ) ) ) ) ) ) )

STATEMENT OF MATERIAL FACTS AS TO WHICH THERE IS NO GENUINE DISPUTE

Pursuant to Local Civil Rule 7(h), the named defendants

hereby provide the following statement of material facts as to

which there is no genuine dispute:

1) The events described in the Complaint in this action

took place on September 27 and 28, 2002. See Amended Complaint,

¶¶ 11-12.

2) The original complaint was not filed and this action was

not commenced until September 15, 2005. Complaint at 1 (Docket

Entry No. 1).

3) At the time of the events alleged in the Complaint, Paul

Bame, Gregory Keltner and Ivan Welander had been arrested, but

had refused to provide their true names to law enforcement

authorities, instead remaining identified to authorities only as

“John Does.” Plaintiffs’ Exhibit 1 (attached to Plaintiffs’

Motion For Class Certification) (Lock Up Lists); Amended

Complaint, ¶¶ 1, 4-6.

Case 1:05-cv-01833-RMC Document 30-1 Filed 04/19/2006 Page 28 of 29
4) Before their arrests, Paul Bame, Gregory Keltner and Ivan Welander had been participating with hundreds of persons in a mass protest of the International Monetary Fund policies in Washington, D.C., a protest that had been publically touted as an effort to shut down the city. See Amended Complaint, ¶¶ 17-18; The People’s Strike: A Day of Non-Compliance and Resistance, (Exhibit A) (available at http:www.abolishthebank.org/strike_archive.shtml) (last accessed April 19, 2006).
Respectfully submitted,
KENNETH L. WAINSTEIN, DC Bar #451058 United States Attorney
RUDOLPH CONTRERAS, DC Bar #434122 Assistant United States Attorney
W. MARK NEBEKER, DC Bar #396739 Assistant United States Attorney
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Case 1:05-cv-01833-RMC Document 30-1 Filed 04/19/2006 Page 29 of 29
CERTIFICATE OF SERVICE I HEREBY CERTIFY that service of the foregoing Motion To Dismiss Or, In The Alternative, For Summary Judgment, supporting memorandum and a proposed Order has been made through the Court's electronic transmission facilities on this 19th day of April, 2006.
W. MARK NEBEKER Assistant United States Attorney 555 4th Street, N.W. Civil Division Washington, DC 20530 (202) 514-7230

 
 Case 1:05-cv-01833-RMC Document 31-1 Filed 04/21/2006 Page 1 of 23

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

PAUL BAME, et al.,
Plaintiffs,
v.
JOHN F. CLARK, et al., Acting Director, U.S. Marshals Service,
Defendants.

) ) ) ) ) Civil Action No. 05-1833 RMC ) No hearings scheduled ) ) ) ) ) )

PLAINTIFFS’ REPLY MEMORANDUM IN SUPPORT OF MOTION FOR CLASS CERTIFICATION

Plaintiff’s Paul Bame, et al., by counsel, hereby reply to defendants’

opposition [25,26]to plaintiffs’ motion for class certification [18]. Plaintiffs

respond here to the issues raised in defendants’ opposition in the sequence of

defendants’ presentation. In short, plaintiffs contend that defendants have offered

no persuasive reasons for denying class certification in this case.

No Double Recovery by Plaintiffs. Defendants note that several lawsuits arose out of the protest events on
September 27, 2002 and then contend that plaintiffs are trying to obtain a double
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Case 1:05-cv-01833-RMC Document 31-1 Filed 04/21/2006 Page 2 of 23
recovery, once against District of Columbia defendants in other litigation and again from the USMS defendants in this case, since Paul Bame and other class members are pursuing damages for the “same conduct” against D.C. defendants in the Burgin/Diamond v D.C. case, C.A. No. 03-0205 (EGS). Pp. 3-8 (Page numbers following restatement of defendants’ contentions refer to pages in their Memorandum in Opposition to Plaintiffs’ Motion for Class Certification).
Plaintiffs’ response is that in fact this case is distinct from the Diamond case because is seeks relief for different misconduct and against different defendants. That action lies solely against the District government and officials and no federal defendants are named nor is relief is sought against federal defendants. Hence, Bame and the other class members will not be awarded damages from the federal defendants in the Diamond case. The Diamond claim are for detention per se, and false arrest, but not for the illegal searches entailed in the strip searching. Moreover, the Diamond claims are for detention per se, and false arrest, but not for the illegal searches entailed in the strip searching. The Diamond compplaint does not allege illegal strip searching by MPD or persons under its control. In addition, the Bame plaintiffs in this case are not seeking damages for the strip searches against D.C. defendants. The Bame plaintiffs will recover damages in Diamond only for the Diamond claims, but not for any relief parallel to this case.
2

Case 1:05-cv-01833-RMC Document 31-1 Filed 04/21/2006 Page 3 of 23
The Barham case was filed solely on behalf of a class of persons arrested in Pershing Park, as well as a few individual plaintiffs.1 The Bame class members are simply are not part of that class,2 and hence no recovery whatsoever is requested in Barham for the proposed class members in Bame.

Paul Bame Not a Named Plaintiff in Diamond Defendants suggest that Paul Bame himself and perhaps others could have
pursued damages for his strip search claim in the Burgin/Diamond case, since, as they allege, he is a “named plaintiff” in that case. P. 4.
While Mr. Bame has agreed to affiliate himself publicly with that case, no filings in that case show him as a named plaintiff therein, and he exerts no control over that case. Moreover, he was not a named plaintiff at the origin of the case, and did not have play a role in the crafting of the claims filed therein.

Plaintiffs’ Sufficiently Pled Violations of the Fourth Amendment to Support Class Certification.
Defendants contend that the strip searches complained of herein simply do

1

Barham complaint paragraph 140. Ex. 9.

2

The class certification order in Barham grants class status only to persons

arrested in Pershing Park.

3

Case 1:05-cv-01833-RMC Document 31-1 Filed 04/21/2006 Page 4 of 23
not violate the Fourth Amendment, because there existed sufficient bases to undertake the strip searches under the USMS written policy. P. 12 and Ex. B.
In response, plaintiffs suggest that, thus, defendants are seemingly attempting, in response to a motion for class certification, to move for summary judgment to defeat the main claims. Plaintiffs’ need only show at this stage that they have adequately pled facts in their complaint to support the Fourth Amendment claims. See, e.g., Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177, 40 L. Ed. 2d 732, 94 S. Ct. 2140 (1974).; Mack et al. v. Suffolk Co., et al., 191 F.R.D. 16, 20(D. Mass. 2000). The issue of the existence of an unconstitutional strip search policy is a important factual element of plaintiffs’ case. The issue must await determination at the summary judgement stage following adequate discovery, or following trial, not in this stage where the parties are asking the Court to adjudicate a motion for class certification.
Second, the USMS written policy statement, Ex. B, nowhere authorizes strip searches of batches of prisoners in the absence of reasonable, individualized suspicion for each arrestee searched. The policy statement does not show that these particular strip searches conformed to Fourth Amendment standards.
Moreover, instead of offering evidence to show that the defendants were in possession of individualized reasonable suspicions as bases for conducting each of
4

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the strip searches on these class members on that day, defendants present a lengthy description of some aspects of the procedures for the handling of prisoners and arrestees by the MPD and the USMS deputies in D.C. Superior Court. However, defendants offer no evidence in their brief to support their bald factual contentions that there were reasonable bases for each of the searches complained of here. Defendants thus provide the court with no basis for making a factual finding that there existed some bases for suspicions upon which to ground some searches. These factual matters must await development through discovery and are not appropriate for determination at this stage.
Defendants fail to offer any records concerning the searches conducted by deputy marshals of protest arrestees on September 28, 2002. Thus, as noted in plaintiffs’ main brief on this motion, a reasonable inference is that defendants in fact have no records of these searches, and hence no documentation which will serve as a basis for their arguing that the searches were reasonable. Instead, defendants offer the Court Exhibit A, which appears to be simply a collection of reports of the results of searches of arrrestees and prisoners conducted in entirely other situations over a roughly ten year period. Significantly, this collection of reports does not contain any report from any searches conducted on September 28, 2002 of plaintiff class members or of any one else. Apparently, under USMS
5

Case 1:05-cv-01833-RMC Document 31-1 Filed 04/21/2006 Page 6 of 23
guidelines reports are prepared only when contraband is found during a search. A reasonable inference is that the searches of plaintiffs class members turned up no contraband.
Arrestees’ Provision of Their Names Is Irrelevant. Defendants contend that the apparent failure of some arrestees to provide
their names and to identify themselves at various stages of the detention process in itself gave rise to a reasonable basis for strip searching them. Pp. 12.
Defendants’ position is pure speculation on what might be the facts of the case, without reliance on any form of admissible evidence. There is no admissible evidence currently in the record that the deputies conducting the searches knew whether or not an individual prisoner had identified himself to a police official. Moreover, the defendants offer no admissible evidence that class members who did identify themselves were not strip searched. In addition, the fact that certain arrestees are identified as “John Does” in the lock-up lists, does not prove that at least some of them later did not identify themselves to the detaining officers. Paul Bame in fact identified himself to the court in order to secure his release and left the Superior Court with a Notice to Return to court at a later time. Ex. 6. (Declaration of Paul Bame.)
6

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The Court need not countenance such speculation at this stage of the proceedings, but should await the factual development of the case, assuming this issue has any relevance.
Plaintiffs Amended Complaint properly pleads the core claim of the case that a blanket3 strip search was conducted on all the men in the proposed class on that day, with no individualized suspicion upon which to base a search. The Court need not delve more deeply into the facts of the situation at this stage.

Arrival of Arrestees from the MPD Central Cell Block Does not Provide a Basis for Blanket Strip Searching All Arrestees.

Defendants contend that the practices of bringing arrestees from the central MPD cell block necessitated blanket strip searches of all arrestees. P. 14.
There is no evidence in the record of where the class members were brought from by the MPD officials. They may have come from the Blue Plains holding facility. They may have come from facilities in Virginia. Ex. 7 (Declaration of Plaintiff Ivan Welander). Defendants provide no evidence at this stage that arrival of an arrestee from a particular venue provides a basis for strip searching them.

3

The term “blanket strip searches” as used here are those searches conducted

without a reasonable, individualized suspicion upon which to base the conduct of a search,

particularly a search as personally intrusive as a strip search.

7

Case 1:05-cv-01833-RMC Document 31-1 Filed 04/21/2006 Page 8 of 23
There is no evidence in the record that the deputies who conducted the strip searches knew where each class member was brought from, and, hence, there is no basis at this time in the record for adjudicating the validity of a strip search on that purported ground.
USMS Policy Statement Does Not Support the Searches Complained of Herein
Defendants contend that the USMS policy statement submitted as their Exhibit B shows that the strip searches could have had a reasonable basis.
To the contrary, the policy statement is merely a statement of general guidelines for searches by deputies. Defendants have not produced evidence that it was applied by the deputies on the relevant day.
The policy statement fails to account for the standards for searches of arrestees set forth in the consent decree entered in Morgan v. Barry, Ex. 11, later discussed at 596 F. Supp. 897 (D.D.C. 1984), more than 20 years prior to September 28, 2002.. This decree forbids the blanket strip searches of arrestees, of the type complained of herein. While the Morgan decree by its own terms applies to women, the standards would be read to apply to similar categories of male arrestees.
8

Case 1:05-cv-01833-RMC Document 31-1 Filed 04/21/2006 Page 9 of 23
The defendants’ policy statement does assist the Court and parties by providing a graphic and detailed description of the strip search procedures.
The Court Need Not Conduct Individualized Hearings to Determine Class Membership.
Defendants contend that the court would have to determine for each class member whether there were a reasonable suspicion upon which to conduct a strip search of each of the class members. “Each search would have to be reviewed by court to determine the reasonableness of the suspicion upon which the search was based.” P. 16 Defendants rely on their Ex B as authorizing USMS cellblock personnel to conduct strip searches whenever they suspect that the detainee may be in possession of contraband. P. 16.
To the contrary, the plaintiffs’ core claim is that a blanket strip search of all the arrestees occurred on that day without any individualized reasonable basis for such a search. The Court will not need to conduct individual hearings to determine whether there was an individualized, reasonable basis for each of the searches, since the claim is that this was a blanket series of strip searches.
In fact, as noted, the lack of USMS reports of any kind, much less any finding of contraband found on class members negates defendants’ suggestion that
9

Case 1:05-cv-01833-RMC Document 31-1 Filed 04/21/2006 Page 10 of 23
the Court would have to conduct an inquiry as to the reasonableness of each search. Paradoxically, the apparent USMS lack of finding any contraband is corroboration that there was no basis for any of the searches. In fact, defendants nowhere articulate any basis for any of the strip search, other than that some class members failed to give their names and that they were arriving from the custody of the MPD officials.
The Class Has Numerosity. Defendants challenge the numerosity of the class, based on their perceived
issues with the lock up lists submitted by plaintiffs. P. 17. The lock up lists show 92 persons with male men who are likely in the class.
Pl Ex. 1. Moreover, Paul Bame states in his declaration, attached hereto as Exhibit 6, that he “observed 70 to 80 men” with him in various adjacent cells during processing who had been strip searched and arrested at protests on September 27, 2002 outside of Pershing Park. Ivan Welander states in his declaration, attached hereto as Exhibit 7, that he observed at least 50 men in the cell areas while he was being processed, who had been strip searched and arrested at protests on September 27, 2002 outside of Pershing Park. These declarations by eyewitnesses on the scene of the detention and strip searches provide the Court with ample
10

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factual basis for a finding numerosity of the class in this case. In addition, the men in the Diamond classes, which overlap with the
proposed class herein, number several hundred. Defendants also claim that plaintiffs admit that any class under 40 persons
cannot be certified. In fact, Judge Lamberth points out in Neal v. Moore, 1994 U.S. Dist. LEXIS
21339, [24] (D.D.C. 1994), that there is no numerical floor on class size. The Court may easily find numerosity present with the proposed class of about 80 men under the current state of the record.
Named Plaintiffs Are Adequate Representatives of the Class. Defendants contend that the named plaintiffs are not adequate
representatives of the entire class, since they refused to give their names while other class members did give their names. Defendants base their assertion on the absence in the Lock-Up lists of the names of the named plaintiffs. At best, defendants contend, the named plaintiffs could only represent those class members who refused to give their names. P.17
In response, the Court may note that the Lock-Up list shows only those persons who refused to provide their names at the time those lists were prepared.
11

Case 1:05-cv-01833-RMC Document 31-1 Filed 04/21/2006 Page 12 of 23
There is no way of knowing carefully the officers preparing the lists polled each person in the group. These lists are not evidence that the class members continued to refuse to provide their names or identities at later stages of arrest processing to detaining officers. Moreover, the MPD officials implemented a procedure to take fingerprints and photographs of the arresteess, according to the declarations of Paul Bame, Ex. 6 and Ivan Welander. Ex. 7. Thus, the arrestees did provide their identity during the processing of their cases.
Moreover, Paul Bame did in fact provide his name to his defense attorney at arraignment, who in turn provided it to the Court. His statement of his identity, he understood, was sufficient to secure his release. Ex. 6. Ivan Welander was released without even undergoing arraignment since he understood that the detaining officials had lost his papers. Ex. 7. He did also provide his name to a defense attorney. Welander and some of his fellow class members could hardly be labeled security risks during their detainment if the detaining officials could not bother themselves to keep track of him and several other arrestees with him. Thus, the defendants were in possession of sufficient information to identify him and the other arrestees, if they had considered any of the many protest arrestees to present any form of security risk.
12

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The Class Has Commonality Defendants contend that the proposed class lacks commonality, since each
strip each class member presents facts rooted in the particular circumstances of their individual strip search. P. 19.
To the contrary, defendants also defend the strip searches on the basis of having to follow the USMS policy statement, Ex. B., as if to say that there were a policy being followed by the deputies at least on that day. At a minimum there is sufficient commonality among class members on the issue of whether the purported policy was being followed by the deputies and whether it met constitutional standards. To determine commonality, the Court need not find that all class member presents the identical set of issues, but rather whether the class members share a sufficient number of issues in common to justify class treatment. Bynum, et al. v. D.C., 217 F.R.D. 27, 33 (D.D.C. 2003); Neal, et al. v. Moore, et al., 1994 U.S. Dist. LEXIS 21339 [26] (D.D.C. 1994); and other cases cited in plaintiffs’ main brief. Here there is sufficient commonality of shared issues among class members to warrant class treatment.
Perhaps more significantly, the class members were searched in batches, according to the Bame and Welander declarations. Exx. 6 and 7. Defendants offer no evidence in their brief to support a finding that the deputies were
13

Case 1:05-cv-01833-RMC Document 31-1 Filed 04/21/2006 Page 14 of 23
following a procedure that entailed use of reasonable, individualized suspicion of each class member prior to his being searched. Thus, no evidence brought forth by defendants so far would enable the Court to find an individualized reasonable basis for conducting any search on any class member. As noted, the deputies apparently maintained no records of the bases of the searches or of the results of the searches themselves, although defendants came forward with what may be a complete record of all other searches conducted over a multi-year period by deputy marshals in Superior Court at times other than September 28, 2002.
Other court which have considered defendants’ contention have rejected it. See, e.g., Bynum, supra; Helton v U.S.,191 F. Supp. 2d 179 (D.D.C. 2002); Mack v. Suffolk County, 191 F.R.D. 16, 24 (D. Mass. 2000).
The Named Plaintiffs Have Claims Typical of the Whole Class. Defendants contend that the representative plaintiffs lack typicality of the
claims of the other members of the class, since named plaintiffs failed to give their names to the MPD officials at one point in the detention process, allegedly in violation of a local D.C. statute. Moreover, defendants contend that an arrestees’ failure to give his or her name allows an arresting officer to be “advised that the person is concealing contraband” under terms of the the USMS policy paper.
14

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Footnote 10. As stated, Paul Bame did identify himself at one point in the proceedings to
his attorney and through the attorney to the court judge hearing the arraignments. Ex. 6 Welander also identified himself to his attorney for the same purpose. Ex. 7 Moreover, the detaining officers apparently photographed and fingerprinted every arrestee in the class. Exx. 6 and 7. Thus, the named plaintiffs in fact are typical of both subsets of class members, if these in fact be true subsets.
Moreover, plaintiffs contend that the failure of certain arrestees to provide their names at one stage of the arraignment process is irrelevant to the class issue. The Morgan consent decree, Ex. 11, does not permit arrestees who fail to provide their names to be strip searched.
Moreover, the USMS policy statement, Ex B, does not appear to permit the extreme measure of strip searches based on a failure of protestors arrested for minor infractions to give their names.
Individual Findings of Fact Are Not Required for the Court to Award Damages.
Defendants contend that the claims alleged will require the Court to take proof as to each class member’s individual mental and emotional state, and, thus,
15

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the commonality requirement is not met for the class. P. 22 Plaintiffs’ claim are not an aggregation of a series of similar tort claims. All
the plaintiffs share the same claim for the Fourth Amendment violations committed by the defendants, as stated in the Amended Complaint. Plaintiffs have already presented in their main class certification brief their position that the liability could be determined on a class basis, since there are facts common to all the claimants. Moreover, the amount of damages can be tried in the sample trials as proposed in the main class certification brief. See, Plaintiffs’ Main Brief pp. 21 ff. Defendants simply do not respond to this proposed use of a now familiar approach for adjudicating the amount of damages for each class member. Courts have many times held that a class may be certified under Rule 23(b)(3) when there are individual amounts of damages, again, as discussed in the plaintiffs’ main brief. Moreover, in this case, plaintiff class members might possibly be held all to have suffered the same damages for a constitutional law violation, and awarded the same amount.
Plaintiffs’ Counsel Have No Conflict of Interest. Defendants raise the possibility, without actually contending, that plaintiffs’
lead counsel, Mr. Cunningham, might at some point have a conflict of interest
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under D.C. Code of Professional Responsibility Rule 1.9. Pp. 26-27. They suggest that since Mr. Cunningham formerly was one of the counsel for plaintiffs in Johnson v. D.C., he might be faced with taking a position in this case which adversely affects the interests of the plaintiff class in Johnson. Defendants’ suggestion presumably arises since one of the two sets of claims raised in Johnson is that female arrestees were discriminated against under the Equal Protection aspect of the Due Process Clause of the Fifth Amendment,4 in that certain categories of female arrestees were as a matter of USMS policy subjected to strip searches while similarly situated male arrestees were not. Since the proposed Bame class is by definition all male, so defendants’ argument presumably goes, counsel’s pursuit of the men’s interests might adversely affect the Johnson women’s interests.
In short, plaintiffs’ counsel does not have a conflict, as defined in Rule 1.7, for several reasons.5 The Johnson case claims that for three years plus, USMS strip searched thousands of women and not men, as a matter of USMS practice and

4

The Fourteenth Amendment, and the Equal Protection Clause found therein, does

not apply to the District of Columbia, which is not a state.

5

Plaintiffs’ counsel emphasizes to the Court that they take the D.C. Bar ethics rules

with utter seriousness, and do not wish to engage in any form of violation of the rules concerning

conflicts of interest or otherwise. Counsel will work assiduously to avoid any violation of the

ethical rules in this case and all other cases. Defendants state in their opposition brief that they

see no conflict for plaintiffs’ counsel at this time.

17

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policy. First, defendants have already agreed in open court in the Johnson
proceedings to cease their long-standing policy lasting over several years of searching the women arrestees but not the men.6 Nothing is likely to happen in the Johnosn case will change defendants’ standing factual admission to the Court that there had been the long-standing policy. Thus, plaintiffs’ counsel cannot foresee doing anything in Bame case to adversely affect the plaintiff class’ interests in Johnson.
Second, the Bame class is not seeking to prove that there never was a longstanding policy of discrimination against women arrestees, but at most that there was one exceptional event of illegally strip searching a relatively small group of men on one day out of the many years covered by the Johnson claims. The existence of a blanket strip search in violation of the Fourth Amendment on one day of men, does not disprove the Fifth Amendment claim of the women that there

6

See , MINUTE ENTRY ORDER in Johnson v. D.C., Civil Action No 1:02-cv-

2364 (RMC) granting [24] Consent Motion to Hold Motions in Abeyance Pending Settlement

Discussions. Signed by Judge Rosemary M. Collyer on 4/28/03.(Entered: 04/28/2003). The

relevant term of the consent motion is: “ the Federal Defendants will have implemented by

Monday, April 28, 2003, new security policies and practices that will (i) permit “drop, squat and

cough” searches or a strip search only, at the least, upon an individualized finding of reasonable

suspicion, if not probable cause, and with the approval of a supervisor; and (ii) insure that such

searches will be applied even-handedly to both men and women arrestees and detainees.”

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was a policy stretching over several years. Third, Johnson is based on two sets of claims. As to the first set, there is
no conflict with the Fourth Amendment claim in Johnson, since the Bame Fourth Amendment claim is essentially parallel. The Bame case claims support the Johnson Fourth Amendment claims, since it is legally parallel. Hence, there is no adverse effect by the Bame case on the Johnson clients with respect to the Johnson Fourth Amendment claim.
Fourth, Bame is grounded on a point of fact, which fact will be true regardless of how the Johnson case proceeds or how the Bame case proceeds, to wit, that in one apparently exceptional episode on one morning during a mass protest a group of men (perhaps less than 100) were strip searched without a reasonable suspicion. Any adverse effect on the Johnson plaintiff class from the activities in the Bame case, might arise from this point of fact, but this event does not denigrate factually the Johnson Fifth Amendment claim. The Bame case does not claim that there was a systematic policy of strip searching men over several years, hence seeking to establish an argument that might adversely affect the Johnson plaintiffs’ position. Johnson apparently does not argue that no individual men were ever strip searched, but that there was a long standing and consistent policy and practice of illegally strip searching women but not men.
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Attorney Zachary Wolfe Is Well Qualified to Handle this Case Without Cunningham.
Defendants contend that Mr. Wolfe is unqualified on his own to handle this case, in the event Mr. Cunningham must withdraw. P. 28.
Mr. Wolfe is well qualified to handle this matter on his own, as shown in his affidavit submitted in support of this motion, and, if need be, he would be able to add additional experienced counsel to replace Mr. Cunningham, in the event he had to withdraw. Mr. Wolfe has more than five years successful, relevant experience in complex class action litigation.
Class Treatment Is the Superior Method for Handling this Case. Defendants contend that the necessity of individualized treatment of the
class members’ claims precludes a finding by the Court that the predominance of issues requirement has been met. The Court will have to make an individualized determination, defendants argue, of just whether each person is actually a member of the class, i.e., whether the strip search was reasonable. P. 29. Also, if the other class actions had thought this were a class claim, they would have included these claims as class claims. p. 31
These points have already been addressed above. Plaintiffs’ have cited the
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Court in their main brief to numerous cases where classes similar to this were certified and where significant relief was awarded to victims of illegal strip searches by government officials. Main Brief pp. 8-9. See also, Eddleman v. Jefferson County, Ky., 96 F.3d 1448 (6th Cir.(Ky.) Aug 29, 1996)(unpublished); Calvin v. Sheriff of Will County, 2004 WL 1125922 (N.D.Ill. May 17, 2004); Doan v. Watson, 2002 WL 31730917 (S.D.Ind. 2002)(class action settlement approved);
Defendants Should Pick up the Costs of Notifying the Class. Defendants contend that having the defendants pick up the costs of
notifying the class is unprecendented. P. 32. Plaintiffs suggest that the Court reserve decision as to who shall bear the
costs of providing notice to the class. Plaintiffs’ counsel is prepared to do so should the need arise.
CONCLUSION For the foregoing reasons and for the reasons set forth in Plaintiffs’ Main Brief in support of this motion, the Named Plaintiffs’ motion for class certification pursuant to Rule 23(a), 23(b)(3) should be granted.
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Respectfully submitted,
/s/ Lynn E. Cunningham Lynn E. Cunningham, Esq. D.C. Bar No. 221598 P.O. Box 1547 Dubois, Wyoming 82513 Phone: 307-455-3334/3374 Fax: 307-455-3334 Email: lcunningham@law.gwu.edu
Zachary Wolfe, Esq. D.C. Bar No. 463548 People’s Law Resource Center 1725 I Street, NW, Suite 300 Washington, DC 20006 Phone: 202 265 5965 email: zwolfe@peopleslawresourcecenter.org
CERTIFICATE OF SERVICE I hereby certify that service of the foregoing PLAINTIFFS’ REPLY MEMORANDUM IN SUPPORT OF MOTION FOR CLASS CERTIFICATION has been made through the Court's electronic transmission facilities on this 21st day of April, 2006.
/s/ Lynn E. Cunningham Lynn E. Cunningham, Esq. (D.C. Bar No. 221598) Attorney for Plaintiffs

LIST OF EXHIBITS

EXHIBIT # 6 7

DESCRIPTION OF EXHIBIT. Declaration of Paul Bame Declaration of Ivan Welander

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Case 1:05-cv-01833-RMC Document 31-1 Filed 04/21/2006 Page 23 of 23

8

Johnson v. D.C. Stand Still Consent Motion

9

Barham v. Ramsey Complaint

10

Paul Bame’s Notice to Return to Court

11

Morgan v Barry consent decree (unreported)

23

 
 Case 1:05-cv-01833-EGS Document 78 Filed 10/28/2005 Page 1 of 18

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Paul Bame,

)

Gregory Keltner, and

)

Ivan Welander.

)

)

Plaintiffs,

)

on behalf of themselves and all

)

other similarly situated

)

vs.

)

John F. Clark,

)

In his official capacity as

)

Acting Director

)

United States Marshal’s Service, )

United Stated Marshals Service

)

Headquarters

)

Washington, D.C. 20530-1000

)

)

Steve Conboy,

)

in his official capacity as the

)

United States Marshal for the

)

Superior Court of the District of )

Columbia,

)

500 Indiana Avenue, N.W.

)

Washington, D.C. 20001

)

)

Todd Walther Dillard

)

In his individual capacity

)

(Former United States Marshall for )

the District of Columbia, D.C.)

)

)

)

John Does No. 1 to 15

)

United States Deputy Marshals for )

the District of Columbia, D.C.

)

Superior Court for the District of )

Columbia

)

500 Indiana Ave., N.W.

)

Washington, D.C. 20001

)

Defendants

Civil Action No. 1:05CV01833 (EGS)

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Case 1:05-cv-01833-EGS Document 78 Filed 10/28/2005 Page 2 of 18
FIRST AMENDED CLASS ACTION COMPLAINT FOR COMPENSATORY AND PUNITIVE DAMAGES
1. Plaintiffs Paul Bame, Ivan Welander, and Greg Keltner bring this action on their own behalf and on behalf of all other men who were arrested on September 27, 2002 during several large protests involving hundreds of people in downtown Washington, D.C, and who were subjected to an unlawful strip search as described herein. On September 28, 2002, several hours following their arrest, the men were subjected to unlawful strip searches by defendants deputy U.S. Marshals acting under the supervision of Todd Dillard, then the U.S. Marshall for the District of Columbia Superior Court. The strip searches were conducted without reasonable, particularized, individualized suspicion in violation of their Fourth Amendment right to be free of unreasonable searches and seizures.
JURISDICTION AND VENUE 2. This Court has jurisdiction over the this action and plaintiffs’ 42 U.S.C. §1983 and
Bivens claims pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1343(a)(3). 3. Venue is appropriate in this District because each of the claims for relief arose in this
judicial district.
PARTIES PLAINTIFF 4. Plaintiff Paul Bame was arrested on charges of “incommoding” and two other minor
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infractions during a mass protest in Washington, D.C. on September 27, 2002. He was arrested by officers of the Metropolitan Police Department of the District of Columbia (“D.C. Police”), or officers of police departments acting under the supervision of the D.C. Police. a. After his arrest he was initially held in custody of the D.C. Police and then was
transferred to the custody of deputy U.S. Marshals and held in their custody for several hours lasting into September 28, 2002. b. While held in custody of the U.S. Marshals, several deputies conducted a strip search on him in the presence of eight to twelve other male arrestees, who were strip searched at the same time. The search performed on him was conducted without the deputies having any individualized, reasonable suspicion upon which to base a search. c. He was released a few hours later after appearing before a judge at the federal courthouse. He was not required to post bond. d. He is an adult resident of the State of Colorado. 5. Plaintiff Greg Keltner was arrested during a mass protest in Washington, D.C. on September 27, 2002. He was arrested by D.C. police officers, or officers of police departments acting under the supervision of the D.C. Police. a. After his arrest he was initially held in custody of the D.C. Police and then was transferred to the custody of deputy U.S. Marshals and held in their custody for several hours lasting into September 28, 2002. b. While held in custody of the U.S. Marshals, several deputies conducted a strip
3

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search on him in the presence of eight to twelve other male arrestees, who were strip searched at the same time. The search performed on him was conducted without the deputies having any individualized, reasonable suspicion upon which to base a search. c. He was released a few hours later without being brought before a judge and without posting bond. d. He is an adult resident of the State of Wisconsin. 6. Plaintiff Ivan Welander was arrested during a mass protest in Washington, D.C. on September 27, 2002. He was arrested by D.C. police officers, or officers of police departments acting under the supervision of the D.C. Police. a. After his arrest he was initially held in custody of the D.C. Police and then was transferred to the custody of deputy U.S. Marshals and held in their custody for several hours lasting into September 28, 2002. b. While held in custody of the U.S. Marshals, several deputies conducted a strip search on him in the presence of eight to twelve other male arrestees, who were strip searched at the same time. The search performed on his was conducted without the deputies having any individualized, reasonable suspicion upon which to base a search. c. He was released a few hours later without being brought before a judge and without posting bond. d. He is an adult resident of the State of Wisconsin.
4

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PARTIES DEFENDANTS
7. Defendant John F. Clark, is sued in his official capacity as the Acting Director of the United States Marshal’s Service (“USMS”), which is an agency of the United States Government.
8. Defendant Steve Conboy is sued in his official capacity as the United States Marshal for the District of Columbia Superior Court (USMDC).
9. Defendant Todd Walther Dillard was the United States Marshal for the District of Columbia Superior Court at all times relevant to this action. He is sued in his individual capacity.
10. Defendants John Does 1 through 15 were, or are, deputy United States Marshals at all times relevant to this action. They are each sued in their individual capacity.
CLASS ACTION ALLEGATIONS 11. Named plaintiffs bring this action under Fed. R. Civ. Pro. Rules 23(a) and 23(b)(3) on
behalf of the class consisting of: a. each man who was: (1) arrested on September 27, 2002 by the D.C. Police
officials during a series of mass protests in downtown Washington, D.C.; (2) remanded by D.C. Police, following that arrest, into the custody of the U.S. Marshal for the District of Columbia prior to being released; and (3) subjected by deputy U.S. Marshals to a strip, visual, body cavity search without any particularized or individualized reasonable suspicion that he was concealing
5

Case 1:05-cv-01833-EGS Document 78 Filed 10/28/2005 Page 6 of 18
drugs, weapons or other contraband; (4) excluding, however, all men arrested within the confines of Pershing Park on September 27, 2002. 12. The class is so numerous that joinder of all members is impracticable. The exact number of the class membership is not known. However, records of the D.C. Superior Court dated September 28, 2002, entitled “IMF Mass Protest Lock Up List” list at least ninety men. On information and belief, at least half this number were arrested at mass protests other than at Pershing Park. Thus, this class consists of at least 45 men, and possibly more than one hundred men. 13. The class is manageable in that all members of the proposed class will be identifiable from records in the possession of defendants, and from other official records. 14. There are questions of fact and law which are common to all class members, and common to the claims of the named plaintiffs, including: a. What were the nature and extent of the strip searches conducted on every member of the plaintiffs class? b. Whether the searches conducted by defendants on the plaintiff class members comported with the standards provided under the Fourth Amendment to the United States Constitution? c. What policies, customs, or practices resulted in the defendants conducting strip searches on the plaintiff class members? d. Whether the U.S. Marshal’s Service, the United States Marshal in his official capacity, or former Marshal Dillard in his individual capacity, were deliberately indifferent to the rights of the class members by failing to train their staff
6

Case 1:05-cv-01833-EGS Document 78 Filed 10/28/2005 Page 7 of 18
concerning reasonable search procedures, sufficient to give rise to a claim against him under 42 U.S.C. §1983? e. Whether the law in the District of Columbia was sufficiently clearly established as of September, 2002 with regard to the legality of the strip searches conducted by defendants, such that the defendants are not protected by any qualified immunity? f. Whether the class members sustained damages and, if so, the proper measure of such damages? g. Whether Defendants were acting as an agent of or in joint action with the District of Columbia, or otherwise acting under color of D.C. law? 15. The named plaintiffs will fairly and adequately represent and protect the interests of the class. a. Named plaintiffs’ claims are typical of the claims of all class members in that they were each subjected to unlawful strip searches during the same mass arrest episode of custody as the other class members, each of whom suffered a similar strip search; b. Named plaintiffs have no conflicts with the other class members; c. There are no individual questions on the issue of liability, since every member of the plaintiff class was subjected to a blanket strip search. 16. Named plaintiffs have retained counsel who have handled complex federal court class actions in various issue areas, including claims for unlawful strip searches of prisoners. a. Lynn E. Cunningham has practiced law in the District of Columbia for thirty years and handled successful class action litigation in the areas of welfare rights,
7

Case 1:05-cv-01833-EGS Document 78 Filed 10/28/2005 Page 8 of 18
health benefits, housing rights, as well as prisoner’s rights. b. Zachary Wolfe has practiced law for five years in the District of Columbia,
handling a variety of cases, including successfully challenging illegal police actions with regard to public protests in D.C..
GENERAL FACTUAL ALLEGATIONS 17. On September 27, 2002, hundreds of persons, including plaintiff class members, staged a
mass protest of certain federal agency policies in various locations in downtown Washington, D.C., including outside the International Monetary Fund headquarters, and various government agency and corporate headquarters buildings. 18. Hundreds of protestors, including plaintiff class members, were arrested by D.C. Police officers, and police officials from other agencies acting under the direction of D.C. police, and under the police powers of the Government of the District of Columbia. 19. After being held in the custody of the D.C. Police for many hours, the plaintiff class members and other arrestees were remanded by D.C. Police officials to the defendants during the night of September 27, 2002 and then held in custody in holding cells of the D.C. Superior Courthouse for the District of Columbia, awaiting arraignment on the criminal charges lodged against them. 20. Plaintiffs and plaintiff class members were held in the custody of USMS, and in the physical custody of the individual defendants until the charges alleged against them could be determined, judicially or otherwise. This determination occurred during the day on September 28, 2002. 21. While in the custody of the USMS, each and every plaintiff class member, and other
8

Case 1:05-cv-01833-EGS Document 78 Filed 10/28/2005 Page 9 of 18
arrestees, was subjected to strip searches in spite of the marshals having no individualized reasonable suspicion for doing so. 22. On information and belief, defendant Dillard and the USMS deputies conducted the uniform, blanket strip searches of each and every class member male arrestee on September 28, 2002 pursuant to an official USMS custom, policy or practice. 23. The strip searches conducted on the plaintiffs and plaintiff class members entailed the following actions: a. Small teams of defendants took aside small groups of eight to twelve plaintiff
class members into a separate holding area; b. Plaintiffs were ordered to drop their trousers and underpants, face a wall, and to
squat down and cough in front of the deputy marshals; c. No contraband was found on any class member; d. On information and belief, no records were made by the defendants of the results
of the strip searches. e. Plaintiffs, and on information and belief, Plaintiff class members, were subjected
to pat-down searches and visual inspection repeatedly and were in close physical proximity to other arrested persons as well as law enforcement over a period of hours prior to the strip search complained of herein. 24. The strip searches were intimidating, humiliating, and subjected each class member to strong emotional distress. 25. On information and belief, defendants’ conduct of the said searches was malicious and recklessly indifferent to the rights and interests of the named plaintiffs and of all the
9

Case 1:05-cv-01833-EGS Document 78 Filed 10/28/2005 Page 10 of 18
members of the class. 26. Within a few hours after the strip searches were conducted, each class member was
released either under bond, after pleading guilty to a minor offense such as failure to obey a police officer or “incommoding,” or without any charge being advanced against him. 27. No class member was tried or convicted of any felony or crime involving violence or drug charges in connection with the arrests on September 27, 2002. 28. Both male and female protest arrestees were subjected to the searches. On information and belief, the women’s claims with regard to strip searches are addressed under separate litigation. 29. On information and belief, claims of persons arrested at Pershing Park protests on that day are also addressed under separate litigation.
CLAIM ONE – BIVENS PERSONAL LIABILITY OF FORMER UNITED STATES MARSHALL TODD WALTHER DILLARD
AND OF UNITED STATES MARSHALL SERVICE EMPLOYEES DOES 1-15 FOR
VIOLATION OF FOURTH AMENDMENT RIGHTS. 30. Plaintiffs re-allege and reincorporate paragraphs 1 through 29 herein. 31. Named plaintiffs and every member of the plaintiff class have a right protected under the
Fourth Amendment to the United States Constitution not to be subjected to unreasonable searches and seizures by persons acting under United States and District of Columbia governmental authority. 32. The said protection includes the right of an arrestee held on a non-drug, non-violent offense in police custody not to be subjected to a strip search in the absence of an
10

Case 1:05-cv-01833-EGS Document 78 Filed 10/28/2005 Page 11 of 18
individualized, reasonable suspicion on the part of the searching officer that there is a basis for the search. 33. Defendants Dillard and John Does numbers 1 through 15 violated that right, while acting in their capacity as U.S. Marshal for the District of Columbia Superior Court and deputy U.S. Marshals by conducting on each named plaintiff and each member of the plaintiff class a search on September 28, 2002, consisting of the one or more of the defendants personally ordering each individual plaintiff to remove his clothing and exposing private parts of his body to a full visual inspection by one or more of the defendants, in the presence of other class members. 34. The defendants conducted the said searches in the absence of any reasonable, individualized suspicion that any plaintiff was secreting any form of contraband on his person. 35. Defendants violated clearly established law in conducting the searches: a. Washington, D.C. had been the site of large scale protests for decades prior to
September, 2002. b. These protests have resulted many times in arrests of large numbers of protestors. c. Courts had ruled in previous decades on the proper standards for the police
treatment of arrested protestors, and held that certain forms of highly intrusive searches of such arrestees’ persons were violative of Fourth Amendment standards. d. As a result, the law governing what constitutes a reasonable ground for strip searching a prisoner had, as of 2002, long been clearly established in the District
11

Case 1:05-cv-01833-EGS Document 78 Filed 10/28/2005 Page 12 of 18
of Columbia, and, in particular, the illegality of conducting strip searches without any individualized, reasonable suspicion upon which to ground the searches. e. The defendants conducted the searches when acting under governmental authority. f. The defendants had fair notice of the applicable legal standard for the conduct of strip searches of prisoners. The plaintiffs were non-violent, non-felon, non-drugrelated prisoners, who had been arrested in the course of a peaceful protest against government policies. g. All the searches were highly invasive strip searches 36. There are no special factors to suggest to that the Court should decline to provide a special cause of action or a remedy for the defendants’ violations of plaintiffs’ rights. 37. Individual defendants are each individually and directly liable under the Fourth Amendment to each member of the plaintiff class for monetary damages for the injuries caused by defendants’ conduct. 38. The claim entails an appropriate, judicially manageable remedy, namely, money damages which may be imposed on each of the defendants individually.
CLAIM TWO — INDIVIDUAL DEFENDANTS’ PERSONAL LIABILITY UNDER 42 U.S.C. §1983 FOR VIOLATION OF
THE PLAINTIFFS’ FOURTH AMENDMENT RIGHTS 39. Plaintiffs re-allege and reincorporate paragraphs 1 through 38 herein. 40. Defendants, in addition to being employees of the federal government, were at all
relevant times acting as agents of, or in joint action with, the District of Columbia, for the
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Case 1:05-cv-01833-EGS Document 78 Filed 10/28/2005 Page 13 of 18
purposes of assisting the D.C. police in the conduct of police operations during the mass protests which occurred on September 27, 2002. 41. The U.S. Marshal for the District of Columbia Superior Court derived his authority over the plaintiff class while they were in custody of the USMS and the deputy marshals pursuant to statutes of the District of Columbia, including D.C. Code §§ 13-302, 16-703, 23-501, 23-561, and 23-581 and cooperative agreements entered into between the U.S. Marshals Service and the Government of the District of Columbia pursuant to D.C. Code § 5-133.17. 42. The operations of the USMDC are and were at all relevant times funded in part by the District of Columbia. 43. The USMDC and his deputies acted at all relevant times as the agents of, or in joint action with, the Government of the District of Columbia. 44. Individual defendants were following USMS and USMDC policy, customs, and practices, which were the moving force behind the deprivations of the plaintiff class members’ Fourth Amendment rights. 45. At all relevant times individual defendants were acting within the scope of their employment, their acts were motivated by a desire to further the interests of the USMS and USMDC, and such individuals were acting in furtherance of the business of the USMS and USMDC. 46. Individual defendants proceeded under color of District of Columbia law to assume and retain custody of the plaintiffs and all members of the plaintiff class following their custody of the D.C. Police.
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47. Individual defendants proceeded under color of District of Columbia law to conduct the aforementioned strip searches of the plaintiffs and all members of the plaintiff class.
48. Individual defendants are therefore liable under 42 U.S.C.§ 1983 for monetary damages for subjecting all members of the plaintiff class to violations of their Fourth Amendment rights to be free of unreasonable searches and seizures. CLAIM THREE — OFFICIAL CAPACITY LIABILITY OF JOHN CLARK OF THE UNITED STATES MARSHALS’ SERVICE AND UNITED STATES MARSHALL STEVE CONBOY UNDER 42 U.S.C. §1983 FOR VIOLATION OF THE PLAINTIFFS’ FOURTH AMENDMENT RIGHTS – FAILURE TO TRAIN
49. Plaintiffs re-allege and reincorporate paragraphs 1 through 48 herein. 50. USMS training of the deputy marshals was inadequate as to the well-established legal
standards with regard to what constitutes a lawful search of a prisoner, such that the deputies’ handling of the custody and searches were clearly violative of plaintiffs’ rights. 51. The USMS and the U.S. Marshal for D.C. Superior Court, in his official capacity, showed deliberate indifference to the rights of the plaintiffs and the plaintiff class members by failing to train the deputy marshals responsible for the custody of the plaintiff class members concerning the procedures required for searches of protestors held in custody under Fourth Amendment standards. 52. The violations on September 28, 2002 of plaintiffs’ Fourth Amendment rights were foreseeable because of the USMS’s and the U.S. Marshal’s failures to train the deputy marshals who conducted the searches. 53. The USMS and the U.S. Marshal for D.C. Superior Court were proceeding under color of D.C. law to hold and detain the plaintiffs and members of the plaintiff class on September
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Case 1:05-cv-01833-EGS Document 78 Filed 10/28/2005 Page 15 of 18
28, 2002, and as such were agents of, or in joint action with, the District of Columbia. 54. The USMS and the U.S. Marshall for D.C. Superior Court are liable to the plaintiffs
under the Fourth Amendment, enforced under 42 U.S.C. §1983, for money damages arising from the injuries suffered by the named plaintiffs and by each member of the plaintiff class as a result of the unlawful strip searches.
CLAIM FOUR — OFFICIAL CAPACITY LIABILITY OF JOHN CLARK OF THE UNITED STATES MARSHALS’ SERVICE
AND UNITED STATES MARSHALL STEVE CONBOY UNDER 42 U.S.C. §1983 FOR VIOLATION OF
THE PLAINTIFFS’ FOURTH AMENDMENT RIGHTS – UNLAWFUL OFFICIAL CUSTOM, POLICY, OR PRACTICE 55. Plaintiffs re-allege and reincorporate paragraphs 1 through 54 herein. 56. On information and belief, the USMS deputies proceeded on September 28, 2002 to conduct strip searches on the plaintiffs and plaintiff class members pursuant to a longstanding custom, practice, or policy of the USMS of conducting such searches on persons in USMS custody following arrests in the District of Columbia during politically grounded, mass protests. 57. The USMS and the U.S. Marshall for D.C. Superior Court were proceeding under color of D.C. law to hold and detain the plaintiffs and members of the plaintiff class on September 28, 2002, and as such were agents of or in joint action with the District of Columbia. 58. The USMS and the U.S. Marshall for D.C. Superior Court are liable to the plaintiffs under the Fourth Amendment, enforced under 42 U.S.C. §1983, for money damages arising from the injuries suffered by the named plaintiffs and by each member of the
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plaintiff class as a result of the unlawful strip searches.
PRAYER FOR RELIEF WHEREFORE, plaintiffs respectfully request that this Court grant the following relief: 1. Enter an Order authorizing this matter to proceed as a class action, and certifying named
plaintiffs Paul Bame, Ivan Welander, and Greg Keltner as representative plaintiffs, and designating the undersigned as class counsel, on behalf of the following class: a. each man who was: (1) arrested on September 27, 2002 by the D.C. Police
officials during a series of mass protests in downtown Washington, D.C.; (2) remanded by D.C. Police, following that arrest, into the custody of the U.S. Marshal for the District of Columbia prior to being released; and (3) subjected by deputy U.S. Marshals to a strip, visual, body cavity search without any particularized or individualized reasonable suspicion that he was concealing drugs, weapons or other contraband; (4) excluding, however, all men arrested within the confines of Pershing Park on September 27, 2002. 2. Award to each plaintiff class member compensatory, consequential, and punitive damages against the defendants in an amount to be determined; 3. Award plaintiffs attorneys’ fees and costs incurred in bringing this action under 42 U.S.C. §1988 and any other applicable provision of law; 4. Grant such other and further relief as this Court deems just and proper.
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JURY DEMAND
Trial by jury is demanded on all issues for which a jury trial is available.
Respectfully submitted,
/s/ Lynn E. Cunningham Lynn E. Cunningham, Esq. D.C. Bar No. 221598 P.O. Box 1547 Dubois, Wyoming 82513 Phone: 307-455-3334/3374 Fax: 307-455-3334 Email: lcunningham@law.gwu.edu
/s/ Zachary Wolfe Zachary Wolfe, Esq. D.C. Bar No. 463548 People’s Law Resource Center 1725 I Street, NW, Suite 300 Washington, DC 20006 Phone: 202 265 5965 email: zwolfe@peopleslawresourcecenter.org Dated: October 28, 2005
CERTIFICATE OF SERVICE I hereby certify that I have caused a true copy of Plaintiffs’ First Amended Class Action Complaint for Compensatory and Punitive Damages to served by mail with prepaid first class postage this 29th day of October, 2005 upon the following:
George Walsh U.S. Marshal for the District Court U.S. Courthouse 333 Constitution Avenue, N.W. Washington, D.C. 20001
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United States Attorney General U.S. Department of Justice 950 Pennsylvania Avenue, NW Washington, DC 20530-0001 U.S. Attorney for the District of Columbia 555 4th Street, N.W. Washington, D.C. 20530 Todd Walther Dillard U.S. Marshals Service for the Superior Court of the District of Columbia 500 Indiana Avenue, N.W. Washington, D.C. 20001; And at 5414 Freelark Place, COLUMBIA, MD 21045-2452.
Defendants Steve Conboy, and John Clark will be served with this Amended Complaint with initial service of process upon each of them.
/s/ Lynn E. Cunningham Lynn E. Cunningham, Esq., Attorney for Plaintiffs
18

 
 Bame v. Dillard, 647 F.Supp.2d 43 (2009)

647 F.Supp.2d 43 United States District Court,
District of Columbia. Paul BAME, et al., Plaintiffs,
v. Todd Walther DILLARD,1 Defendant.

1

Pursuant to the Court Order granting in part and

denying in part Plaintiffs’ Motion to Amend the

Complaint [Dkt. # 56], the only Defendant remaining in

this case is Todd Walther Dillard. See Second Am.

Compl. for Compensatory and Punitive Damages [Dkt.

# 57] ¶ 8.

Civil Action No. 05-1833(RMC). | Aug. 25, 2009.

Synopsis Background: Arrestees, who were arrested while protesting International Monetary Fund (IMF) and World Bank policies in District of Columbia, brought Bivens action against former United States Marshal, alleging that they were subjected to unconstitutional strip searches upon being processed into holding cells at courthouse. Arrestees moved for summary judgment as to liability, and Marshal moved for summary judgment on issue of qualified immunity.

Holdings: The District Court, Rosemary M. Collyer, J., held that: [1] practice of strip-searching arrestees violated Fourth Amendment; [2] Marshal was not entitled to qualified immunity; [3] fact issues precluded summary judgment as to liability; and [4] complaint plead sufficient facts to state claim against Marshal.
Motions for summary judgment denied.
See also 2008 WL 2168393.
Attorneys and Law Firms

*44 Lynn E. Cunningham, Dubois, WY, Zachary J. Wolfe, Washington, DC, for Plaintiffs.
William Mark Nebeker, U.S. Attorney’s Office, Washington, DC, for Defendant.
Opinion
MEMORANDUM OPINION
ROSEMARY M. COLLYER, District Judge.
Named Plaintiffs Paul Bame, Gregory Keltner, Ivan Welander, Nicolas Church, and John Joel Duncan were arrested for non-violent, non-felony offenses while protesting *45 International Monetary Fund (“IMF”) and World Bank policies in Washington, D.C. Plaintiffs claim that, under the direction and authority of Defendant Todd Walther Dillard, former United States Marshal for the Superior Court of the District of Columbia, they were strip searched by U.S. Deputy Marshals upon being processed into holding cells at the D.C. Superior Courthouse. Plaintiffs claim that these searches were without justification and thus unconstitutional under the Fourth Amendment, and seek damages. Defendant Marshal Dillard responds that the searches were justified by the reasonable suspicion of finding contraband and/or weapons and that, in any event, he is entitled to qualified immunity. Plaintiffs have moved for summary judgment as to liability, while Defendant Marshal Dillard has moved for summary judgment on the issue of qualified immunity. For the reasons explained herein, both motions for summary judgment will be denied.
I. FACTS
A. Lead-up to the International Monetary Fund/World Bank Protests The IMF and World Bank planned to hold their annual Fall meetings on September 27 through September 30, 2002 in Washington, D.C. In what one website described as an effort to “Shut Down the City,” a group of protesters, ultimately numbered in the low thousands, planned to mass in Washington, D.C. in order to protest IMF and World Bank policies for what they believed was maltreatment of poor persons around the globe. Deposition of Paul Bame (“Bame Dep.”) at 6-8. Plaintiffs traveled from around the country to join in this protest. Id.
1

Bame v. Dillard, 647 F.Supp.2d 43 (2009)
Prior to the protest, Plaintiffs discussed among themselves the idea of not carrying any form of identification on their persons and refusing to provide identification or give their true names to law enforcement. Id. at 60-64. Nonetheless, Mr. Bame has testified that no protester intended to be arrested during the protest. Id. at 63.
Such protests are not uncommon and are, in fact, almost routine in the nation’s capital. Deposition of Marshal Todd Dillard (“Dillard Dep.”) at 67; Deposition of Deputy Marshal James Rowe (“Rowe Dep.”) at 27. Local law enforcement, which in this instance includes Metropolitan Police Department (“MPD”) and federal officials, had developed plans of their own to deal with the concerns of traffic congestion, mass arrests, and safety. In advance of the IMF/World Bank protests planned for September 27-October 4, 2002, the United States Marshals Service (“USMS”) prepared an operations plan entitled “Operation Safe Courts” (the “Operation”). Def.’s Statement of Material Facts Not in Dispute (“Def.’s SMF”) at 4; Dillard Dep., Ex. 1 (Operation Safe Courts). The Operation noted an increase in the level of violence directed at law enforcement in connection with similar protests and estimated that 5,000 to 15,000 protesters could descend upon city streets. Def.’s SMF at 5. The Operation also specified how the USMS would aid local police by detaining arrestees pre-arraignment in the Superior Court and warned that many arrestees would refuse to provide identification as a method of non-compliance with law enforcement orders. Id. Most relevant to the case at hand, the Operation provided that Marshals would search arrestees prior to detaining them for presentment to the court. Id.
The Operation did not provide specific guidance on how the searches were to be conducted, but the USMS’s own search policy had evolved over the prior few decades. Searches were to take place as soon as incoming arrestees arrived at the Superior *46 Court cellblock, with the overriding institutional security goal of preventing arrestees from hiding contraband and/or weapons. Rowe Dep. at 17-21. Such searches involved a pat-down of the arrestee’s entire body (while the arrestee was clothed), use of a magnetometer (the familiar metal detectors at airports), use of wands to detect metal objects, and, at issue here, the use of “strip searches.” Id.
Because the definition of a strip search may vary, it is necessary to provide the details of the exact procedure (“District Policy”) used by the USMS at the D.C. Superior Court cell block. Colloquially referred to as the “Drop, Squat and Cough,” male arrestees were required to pull their pants and underwear down to their ankles, squat down or bend over with their buttocks to the searching

Marshals, and then cough to confirm that they were not hiding any contraband and/or weapons in their rectums. Dillard Dep. at 22; Pls.’ Statement of Material Facts Not in Dispute (“Pls.’ SMF”) at 4. It is undisputed that under the District Policy, the USMS has discovered contraband, including drugs and drug paraphernalia, in connection with the Drop, Squat and Cough searches of arrestees at the Superior Court, though the record is silent as to the nature and seriousness of the charges of those arrestees. Def.’s SMF at 7-9.

In July 1999, more than three years before the searches at issue here, USMS Acting Director George R. Havens issued Policy Directive 99-25 (“Policy 99-25”), which provided a specific set of instructions for the Marshals in order to conduct “both reasonable and legal searches” of arrestees. Def.’s Opp’n to Pls.’ Mot. for Class Certification, Ex. B (Policy 99-25) at 1. Policy 99-25 generally refers to strip searches as “a complete search of a prisoner’s attire and a visual inspection of the prisoner’s naked body, including body cavities.” Id. at 3. According to Policy 99-25, strip searches were only authorized when

there is reasonable suspicion that the prisoner may be (a) carrying contraband and/or weapons, or (b) considered to be a security, escape, and/or suicide risk. Reasonable suspicion may be based upon, but is not limited to, one or more of the following criteria:

a. Serious nature of the offense(s) charged, i.e., whether crime of violence or drugs;

b. Prisoner’s appearance or demeanor;

c. Circumstances surrounding the prisoner’s arrest or detention; i.e., whether the prisoner has been convicted or is a pre-trial detainee;

d. Prisoner’s criminal history;

e. Type and security level of institution in which prisoner is detained; or

f. History of discovery of contraband and/or weapons, either on the prisoner individually or in the institution in which the prisoners are detained. Id. at 4. Policy 99-25 also stated that Marshals may perform their own strip search “as necessary based on the [above] factors” prior to accepting a prisoner from another facility. Id. at 5. Finally, the search was to take place: only by a Marshal of the same sex as the prisoner, only via visual examination (i.e., no touching of skin surface), and only in a “professional manner, causing the prisoner as little embarrassment as possible.” Id.2

2

Policy 99-25 was replaced by USMS Directive 9.3

2

Bame v. Dillard, 647 F.Supp.2d 43 (2009)
“Body Searches” effective October 6, 2003. See Declaration of William E. Bordley, Asst. General Counsel for USMS [Dkt. # 29-2 at 2].
*47 In addition to Policy 99-25, the District of Columbia and its agents were subject to a consent decree resulting from litigation in the early 1980’s over treatment of female arrestees. Pls.’ Mot. for Summ. J., Ex. 12 (“Morgan Consent Decree”). Providing the same standard as Policy 99-25, the Morgan Consent Decree required “reasonable suspicion” before the use of a strip search on a female arrestee. Id. at 2. With certain exceptions (i.e., for movement around the same facility or for attorney or clergy visits), the consent decree also allowed strip searches if an arrestee were going to be placed into the general inmate population. Id.
USMS officials, including Defendant Dillard who had been Marshal since 1993 and Deputy Rowe who had worked in the Superior Court since 1996, received annual training on the constitutional and legal standards in regard to searches and strip searches. Dillard Dep. at 11; Rowe Dep. at 9. Moreover, Marshal Dillard and Deputy Rowe were familiar with the then-recent litigation against the District of Columbia challenging strip searches of female arrestee protesters. Rowe Dep. at 71-73.
B. Plaintiffs are Arrested and Transported to a Holding Facility On Friday, September 27, 2002, at around 7 a.m., protesters gathered at Connecticut Avenue and K Street in Northwest D.C. to protest the IMF and World Bank policies. Pls.’ SMF at 2. Some protesters were dressed in “earthy hippie like sort of attire,” while others had painted faces (Plaintiff Bame had a white question mark painted on his face), and still others partially covered their faces with bandanas. Def.’s SMF at 3-4; Bame Dep. at 17-18. Soon thereafter, at around 9 a.m., these protesters, including Plaintiffs, were arrested by MPD officers and charged with non-violent, non-felony offenses such as “incommoding” (blocking traffic) and failure to obey law enforcement orders. Pls.’ SMF at 2; Def.’s SMF at 1-2.
The group of protester-arrestees from Connecticut Avenue and K Street, the exact number of which is unknown but is estimated to be over a hundred, was taken by bus to the MPD Academy at Blue Plains-a holding facility used for larger numbers of protesters arrested from elsewhere in the District. Pls.’ SMF at 2; Def.’s SMF at 4. On the bus ride, Plaintiffs were handcuffed. Deposition of John Joel Duncan (“Duncan Dep.”) at

29-31. On disembarking from the bus at Blue Plains, Plaintiffs were left outside in a grassy area and allowed to socialize. Id. at 30-33. Upon entering the Blue Plains facility, Plaintiffs had their feet cuffed, with an additional cuff connecting their wrists to their ankles. Id. While at Blue Plains, the protester-arrestees were exclusively detained with each other, were not asked for identification, and were not yet booked. Pls.’ SMF at 2-3.
Later on September 27, 2002, MPD officials transported the entire group of arrested protesters to Cell Block B, another MPD facility. Pls.’ SMF at 3; Bame Dep. at 24-33. At this point, male arrestees were separated from female arrestees for booking and detention. Bame Dep. at 33-34. A few protesters provided their true names, posted bond, and were released. Pls.’ SMF at 3. But the majority of protesters, including Plaintiffs, declined to give the MPD their true names or provide any identification. Def.’s SMF at 1-2. The protesters were, again, held all together, while some were allowed to keep certain personal belongings, including backpacks. Id. at 3. MPD officials then transferred this group, including Plaintiffs, *48 to USMS custody at the Superior Court. Id. at 4; Pls.’ SMF at 2-3.

C. U.S. Marshals Strip Search Plaintiffs The following facts are undisputed for purposes of Defendant Dillard’s motion for summary judgment.3 Plaintiffs were turned over to USMS custody late at night on Friday September 27, 2002 or early in the morning of Saturday, September 28, 2002. Pls.’ SMF at 3. By this time, the protester-arrestees had been in custody and cuffed for many hours and had not been detained with any other group of inmates besides fellow protesters. Id. In addition to delivering the arrestees, MPD officers also provided the receiving USMS officials with a “lock up list” of the arrestees transported, containing the names of the arrestees (almost all “John Does”) and the charges (all nonviolent, non-felony) of each arrestee. Id.

3

The Court notes that Defendant Dillard, in his

opposition to Plaintiffs’ Motion for Summary

Judgment, contests whether these strip searches

actually took place. See Def.’s Opp’n at 5. That

contention is addressed below in deciding whether

Plaintiffs are entitled to summary judgment as to

liability on their own motion, as opposed to relying on

these facts for purposes of Defendant’s motion.

The arrestees were placed in a special receiving cell in the basement of the Superior Court holding facility. Id. Each arrestee went through a magnetometer metal detector and was subject to an extensive pat-down search while
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Bame v. Dillard, 647 F.Supp.2d 43 (2009)
clothed. Id. at 4; Bame Dep. at 54. No contraband was found during these precursor searches. Immediately thereafter, pursuant to the District Policy, all were strip searched by USMS staff in cells dedicated solely for such purposes. Pls.’ SMF at 3. Although closed-circuit cameras watched over most of the facility, there were no cameras that had a view of the search cells. Dillard Dep. at 41-42. The facility also had a fingerprinting machine and a computer terminal for background checks right next to these cells, which could be used to identify arrestees. Rowe Dep. at 63-65.
According to Plaintiffs’ sworn affidavits and depositions, all protesters were placed in the search cells in groups of eight to twelve men, with at least two U.S. Marshals (always male) in supervision. Pls.’ SMF at 4. Standing next to one another, the Marshals ordered the group to drop their pants and underwear down to their ankles, squat or bend over with their backsides toward the Marshals, and cough. Bame Dep. at 50-52. Each arrestee in the group of eight to twelve could see or glimpse every other arrestee during the search. Id. The strip search of each group took about one to three minutes and no arrestee was touched. Id. When asked whether the District Policy of performing the Drop, Squat and Cough searches would have been used on these protesters on September 27-28, 2002, Defendant Marshal Dillard responded, “As far as I know, that’s what happened the entire 13 years I’ve been there.” Dillard Dep. at 108. In Deputy Marshal Rowe’s words, these “thorough” searches were performed upon every arriving arrestee as “that was the policy.” Rowe Dep. at 27-28 (“All prisoners were to be searched thoroughly. All prisoners. When we receive all prisoners from outside sources, they all get searched thoroughly. That was the policy.”). No contraband was found on any of the protester arrestees and no documentation of the searches was made. Pls.’ SMF at 6.
Plaintiffs admit that former Marshal Dillard performed none of the searches himself. Pls.’ SMF at 5. But Marshal Dillard did testify that it was his practice *49 to walk along the search cells every day he was at work. Dillard Dep. at 132-37. Defendant Marshall Dillard also described himself as an active supervisor, noting that he always wanted to know what was going on, wanted to know of any problems, and that he was in continual contact with his Deputy and line Marshals. Id.
After being strip searched in groups, the protesters were placed in holding cells again, exclusively with one another. Pls.’ SMF at 4; Def.’s SMF at 10. They were not commingled with the general inmate population. Throughout the day of Saturday, September 28, 2002, each protester had an arraignment hearing before a D.C.

Superior Court Judge and was released with a small ($50-$100) fine. Pls.’ SMF at 3-4. Some were released without any fine or other consequence. Id. In response to related litigation, the District, the USMS, and Defendant former Marshal Dillard represented that, as of April 28, 2003, they had implemented “new security policies and practices that will (i) permit ‘drop, squat and cough’ searches or a strip search only, at the least, upon an individualized finding of reasonable suspicion, if not probable cause, and with the approval of a supervisor; and (ii) insure that such searches will be applied even-handedly to both men and women arrestees and detainees.” See Johnson v. District of Columbia, Civil No. 02-2364 (D.D.C.), Fed. Defs.’ Consent Mot. to Hold Mots. in Abeyance Pending Settlement Discussions ¶ 2 [Dkt. # 24].
II. LEGAL STANDARDS
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment must be granted when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C.Cir.1995). To determine which facts are “material,” a court must look to the substantive law on which each claim rests. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. A “genuine issue” is one whose resolution could establish an element of a claim or defense and, therefore, affect the outcome of the action. Celotex, 477 U.S. at 322, 106 S.Ct. 2548; Anderson, 477 U.S. at 248, 106 S.Ct. 2505.
In ruling on a motion for summary judgment, the court must draw all justifiable inferences in the nonmoving party’s favor and accept the nonmoving party’s evidence as true. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. A nonmoving party, however, must establish more than “the mere existence of a scintilla of evidence” in support of its position. Id. at 252, 106 S.Ct. 2505. To prevail on a motion for summary judgment, the moving party must show that the nonmoving party “fail[ed] to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322, 106 S.Ct. 2548. The nonmoving party may not rely solely on allegations or conclusory statements. Greene v.
4

Bame v. Dillard, 647 F.Supp.2d 43 (2009)
Dalton, 164 F.3d 671, 675 (D.C.Cir.1999). Rather, the nonmoving party must present specific facts that would enable a reasonable jury to find in its favor. Id.
III. ANALYSIS
[1] [2] Marshal Dillard, the only remaining Defendant, is sued in his individual capacity under both Bivens v. Six Unknown Named Agents of Federal Bureau *50 of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) and 42 U.S.C. § 1983. As this Court already has recognized, however, Superior Court Marshals act under color of federal law, and thus do not qualify as state actors for purposes of 42 U.S.C. § 1983. See Johnson v. District of Columbia, 584 F.Supp.2d 83, 89-93 (D.D.C.2008). What remains, then, is analysis of Plaintiffs’ Fourth Amendment claim under Bivens. Defendant Marshal Dillard argues, following the two-step sequence as laid out in Saucier v. Katz, 533 U.S. 194, 200-02, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), that: 1) the District Policy of strip searching without reasonable suspicion was not unlawful; and 2) in any event, he is entitled to qualified immunity because the law was not clearly established at the time of the alleged constitutional violation in September 2002. Although no longer mandatory, the Court follows the two-step protocol in evaluating the defense of qualified immunity. See Pearson v. Callahan, --- U.S. ----, 129 S.Ct. 808, 818, 172 L.Ed.2d 565 (2009) (concluding that Saucier two-step sequence is “often appropriate” and “beneficial,” but no longer mandatory); see also Johnson v. District of Columbia, 528 F.3d 969, 973 (D.C.Cir.2008) (applying Saucier in Fourth Amendment context, determining first if official conduct violated constitutional right, and, if so, whether that right was “clearly established.”).
A. Reasonableness of the Searches under the Fourth Amendment [3] Plaintiffs claim that their constitutional rights were violated because U.S. Deputy Marshals, at the direction of Defendant Marshal Dillard and pursuant to the District Policy, strip searched them without any justification. The Fourth Amendment to the United States Constitution protects “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const., amend IV. The Fourth Amendment generally requires law enforcement to have probable cause before conducting a search. See Safford Unified Sch. Dist. # 1 v. Redding, --- U.S. ----, 129 S.Ct. 2633, 2639, 174 L.Ed.2d 354 (2009). In certain

settings, however, a standard short of probable cause, often referred to as “reasonable suspicion,” is enough to justify a search. Id.
The Supreme Court’s seminal case on the constitutional dimensions of arrestee strip searches is Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). Bell involved a class action suit by pre-trial detainees challenging numerous practices of the Metropolitan Correctional Center, a federally operated short-term custodial facility in New York City, including body-cavity searches of detainees following contact visits with persons outside the institution. Id. at 523, 99 S.Ct. 1861. The Supreme Court found that the body cavity searches did not violate the Fourth Amendment because probable cause was not required and the searches were not unreasonable under the circumstances. Id. at 558-60, 99 S.Ct. 1861. In justifying this conclusion, the Court noted that “this practice gives us the most pause.” Id. at 558, 99 S.Ct. 1861. The Court went on to lay out four factors that should be considered in balancing institutional security against inmate rights:
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.
*51 Id. at 559, 99 S.Ct. 1861. The Court held that such strip searches, after contact visits from outside visitors and before return to the general detention population, may be conducted on “less than probable cause.” Id. at 560, 99 S.Ct. 1861.
Until 2008, every federal circuit court to have faced the issue (ten out of twelve) ruled that, under Bell, suspicionless strip searches of pre-trial arrestees charged with non-violent, non-drug crimes was unreasonable and thus unconstitutional. See Wilson v. Jones, 251 F.3d 1340, 1343 (11th Cir.2001); Swain v. Spinney, 117 F.3d 1, 7 (1st Cir.1997); Masters v. Crouch, 872 F.2d 1248, 1250 (6th Cir.1989); Weber v. Dell, 804 F.2d 796 (2d Cir.1986); Stewart v. Lubbock County, 767 F.2d 153, 156 (5th Cir.1985); Jones v. Edwards, 770 F.2d 739 (8th Cir.1985); Giles v. Ackerman, 746 F.2d 614, 616-18 (9th Cir.1984) (per curiam), overruled on other grounds by Hodgers-Durgin v. de la Vina, 199 F.3d 1037, 1040 (9th Cir.1999); Hill v. Bogans, 735 F.2d 391, 394 (10th Cir.1984); Mary Beth G. v. Chicago, 723 F.2d 1263 (7th Cir.1983); Logan v. Shealy, 660 F.2d 1007, 1013 (4th
5

Bame v. Dillard, 647 F.Supp.2d 43 (2009)

Cir.1981); but cf. Powell v. Barrett, 541 F.3d 1298 (11th Cir.2008) (en banc) (allowing county jail’s blanket policy of strip searching all arrestees that were detained with the general inmate population ). In other words, at the time of the searches at issue here (September 2002), all these courts, some for nearly twenty-five years, required at least reasonable suspicion to strip search a pre-trial or pre-arraignment arrestee charged with a non-violent, non-drug crime.
[4] These precedents, led by the Supreme Court’s four-factor balancing test in Bell, guide the Court’s analysis here. The first Bell factor, scope of the intrusion, clearly falls on Plaintiffs’ side. It is difficult to imagine a more intrusive procedure than the Drop, Squat, and Cough searches in which Plaintiffs had to pull down their pants and underwear, squat in front of other arrestees and two male Marshals, and cough. See Bell, 441 U.S. at 558, 99 S.Ct. 1861 (invasive nature of strip search gives most pause); Redding, 129 S.Ct. at 2643 (the “degradation” and intrusive nature of strip search places it in category of its own). The second and fourth factors (manner of conducting the searches and place of searches) point less clearly toward either side. As Defendant Marshal Dillard argues, the Drop, Squat and Cough searches did not require touching, Plaintiffs were in a room without closed-circuit cameras, and the searches were relatively short lasting only one to three minutes. But in Plaintiffs’ favor, the searches were nothing close to private, having been conducted in batches of eight to twelve arrestees in full view of one another.

The most important factor here is justification for the search-or in this case, the lack thereof. Defendant does not seriously contend that no justification was required for the search. As nearly every court has found,4 some level of justification, whether it is labeled “reasonable suspicion” or not, is required to strip search pre-arraignment arrestees charged with non-violent, non-felony offenses. Here, the Marshals did not develop any justification for strip searching the protester-arrestees, despite the balancing called for in *52 the USMS Policy dating back to 1999. See Policy 99-25 at 4 (strip searches only authorized on “reasonable suspicion” of finding weapons or contraband). In Defendant Marshal Dillard’s own words, the District Policy was to perform strip searches of all detained arrestees during the entire thirteen years he was Marshal. See Dillard Dep. at 108. This practice based on the District Policy, a violation of the national USMS Policy, is unreasonable and unlawful under the Fourth Amendment.

4

The only decision otherwise is the aforementioned

Powell v. Barrett in 2008. That case, unlike this one,

involved strip searches of pre-trial arrestees who were

to be commingled with the general inmate population charged with various serious offenses. 541 F.3d 1298. No other court, as far as this Court can tell, has found it reasonable to perform strip searches of non-violent, non-felony arrestees without any justification. Powell v. Barrett is analyzed in greater detail below.
Defendant, post-hoc in this litigation, makes a half-hearted argument that there was reasonable suspicion because the Marshals did not have the names of the arrestees, there was mention of “shutting down the city,” and prior strip searches had turned up contraband such as drugs. It is true that an arrestee’s failure to provide identification may be one factor that goes into the Bell balancing test as to justification. See Kelly v. Foti, 77 F.3d 819, 821-22 (5th Cir.1996). However, this is not what the record shows happened here. U.S. Deputy Marshals, under direction and authority of Defendant Marshal Dillard, strip searched these arrestees without pause or individualized consideration. Moreover, record evidence from the Defendant strongly suggests that the lack of identification argument is a red herring. To repeat, both Defendant Marshal Dillard and his long-time Deputy Rowe testified that the strip searches would have (and should have) occurred in the normal practice under the District Policy, no matter the charge or identity of the arrestee. See Dillard Dep. at 108; Rowe Dep. at 27-28.
Strip searching under these circumstances is not reasonable without some justification, even a standard less than probable cause, to suggest that Plaintiffs were hiding contraband and/or weapons in their rectums. That justification is not found in the nature or seriousness of the crime charged (non-violent, non-felony violations), not found in the characteristics of the arrestees, and not found in the circumstances of the particular arrests at issue. See, e.g., Allison v. GEO Group, Inc., 611 F.Supp.2d 433, 455-56 (E.D.Pa.2009) (citing factors that go into reasonableness and reasonable suspicion standard). Plaintiffs were arrested for peaceful protests, transported only with fellow protesters, and held only to appear in front of a Superior Court judge and pay a small fine or be released.
The Court need not linger further on this point. The facts, as conceded by Defendant Marshal Dillard for purposes of his motion for summary judgment, show that at his direction and without any particularized justification, Plaintiffs were strip searched using the Drop, Squat and Cough procedure pursuant to the District Policy.5 These strip searches were unreasonable under the Fourth Amendment. The next question is whether the law was clearly established at the time of the unlawful acts in
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Bame v. Dillard, 647 F.Supp.2d 43 (2009)

September 2002. The answer is yes.

5

As explained below in Section III.C. of this Opinion,

Defendant Marshal Dillard, in response to Plaintiffs’

Motion for Summary Judgment on Liability, contests

that the Plaintiffs were actually strip searched on the

relevant dates.

B. Qualified Immunity [5] [6] [7] “The doctrine of qualified immunity shields government officials from civil liability to the extent their alleged misconduct ‘does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” Rasul v. Myers, 563 F.3d 527, 529 (D.C.Cir.2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). Generalities will not *53 do, as the “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, 121 S.Ct. 2151. The test is one of “objective legal reasonableness.” Harlow, 457 U.S. at 819, 102 S.Ct. 2727. The inquiry in the Fourth Amendment context may seem redundant because “reasonableness” comes into play at both Saucier steps. Our Court of Appeals has offered this distinction: step one asks whether it was reasonable for the official to act the way he did, while step two asks whether it was reasonable for the official not to know that his actions were unlawful. See Johnson, 528 F.3d at 976.
[8] The Court looks to cases from the Supreme Court, the D.C. Circuit Court of Appeals, and other courts for principles “exhibiting a consensus view.” Id. Such precedent need not even involve “materially similar facts” as long as “ ‘the state of the law [at the time of the incident] gave [the officer] fair warning that [his alleged misconduct] ... was unconstitutional.’ ” Id. (quoting Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002)). These guiding principles were reaffirmed in the Supreme Court’s most recent discussion of qualified immunity. See Redding, 129 S.Ct. at 2643-44 (even in novel factual circumstances, “ ‘officials can still be on notice that their conduct violates established law’ ” although that conduct might be “less than an outrage”) (quoting Hope, 536 U.S. at 741, 122 S.Ct. 2508).
[9] The specific question here, then, is whether it was reasonable for Defendant Marshal Dillard not to know that it was unlawful to strip search Plaintiffs (via Drop, Squat and Cough procedure under the District Policy) who had been arrested on non-violent, non-felony,

non-drug offenses; held together at all times and not commingled with the general inmate population; and as part of the pre-arraignment booking process brought into Superior Court cells for a short period of detention before release with a small fine. The answer is it was not reasonable for Defendant Marshal Dillard to believe these actions were lawful given the known facts and the state of the law. The Court need not repeat the facts in detail. Suffice it to say that, at the time of the strip searches, the record shows that the Marshals knew they had a group of non-violent, non-felony protesters, held together at all times, never commingled with the general inmate population, who had already gone through metal detectors, wand searches, and pat-down searches and were only going to be held long enough to appear before a Superior Court judge to receive a small fine. Even if the Marshals paused to consider these factors in balancing the need for the search with the intrusion on the individual, which they did not do, these factors would not have created the makings of reasonable suspicion for a Drop, Squat and Cough search.
As to the law, although the D.C. Circuit Court of Appeals had not ruled on the precise issue, the precedent was overwhelming. At the time of the incidents in question, September 2002, every circuit court to have considered the issue, some for a few decades, had held that at least reasonable suspicion is required to strip search non-violent, non-felony offenders. See infra Part III.A. (cataloging cases in ten of twelve circuits); see also Pearson, 129 S.Ct. at 823 (officer may rely on out-of-circuit cases, even if own federal circuit has not yet ruled on issue, in good faith effort at complying with law). The Supreme Court’s 1979 Bell decision itself required, at a minimum, some balancing of the governmental justification versus the intrusion of the search upon the individual. *54 See 441 U.S. at 559, 99 S.Ct. 1861 (“In each case it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails.”). It is not possible to find that Defendant Marshal Dillard was unaware of these legal requirements. As the testimony shows, every year, he and his deputies received legal training on the constitutional standards as applied to strip searches. See Dillard Dep. at 11.
Even more telling, the USMS’s own policy, in place since 1999, required the exact balancing laid out in Bell and the circuits. Policy 99-25 expressly provided that strip searches were only authorized when “there is reasonable suspicion that the prisoner may be (a) carrying contraband and/or weapons, or (b) considered to be a security, escape, and/or suicide risk.” See Policy 99-25 at 4. Multiple factors go into the reasonable suspicion inquiry under
7

Bame v. Dillard, 647 F.Supp.2d 43 (2009)
Policy 99-25 (i.e., nature and seriousness of offense, circumstances surrounding arrest and detention, and type of institution). But it is untenable for Defendant Marshal Dillard to argue, as he now does, that the law was unclear as of September 2002. Not only did the law give him “fair warning” that the District Policy of blanket strip searches of non-violent, non-felony offenders is unconstitutional, but USMS Policy 99-25 did so as well.
Defendant Marshal Dillard argues that the 2008 case of Powell v. Barrett is his ace in the hole. See Powell v. Barrett, 541 F.3d 1298 (11th Cir.2008) (en banc). In Powell, the Eleventh Circuit considered a blanket policy of the Fulton County Jail, as part of its booking process, of strip searching all arrestees who would be detained with the general inmate population, no matter the severity or nature of the crime charged. Id. at 1301. Revisiting the Supreme Court’s Bell decision, the Eleventh Circuit reasoned that Bell, properly interpreted, required courts to view the institutional security needs of the detention facility as the critical factor in the reasonableness analysis. Id. at 1306. And, since Bell categorically allowed strip searches after contact visits and before return to the detention facility’s general population, the Eleventh Circuit found no violation in the type of search it was facing, even without reasonable suspicion. Id. at 1307.
Defendant Marshal Dillard argues that Powell muddies the waters as to the law on arrestee pre-arraignment strip searches so that he is entitled to qualified immunity. Not so. Even if it were possible for a decision coming six years after the incidents in question to affect the analysis, as directed by both the Supreme Court and the D.C. Circuit Court of Appeals, this Court’s inquiry must focus on the specific facts and circumstances at hand, not on the facts other courts have faced. See Johnson, 528 F.3d at 975-76. And the underlying facts here are crucially distinct from Powell. Plaintiffs, unlike those arrested in Powell, were detained together at all times and never commingled with the general inmate population. Moreover, USMS had an express policy (Policy 99-25) requiring reasonable suspicion to strip search arrestees, which Defendant Marshal Dillard’s local practices ignored. Compare Powell, 541 F.3d at 1311 (jail had express blanket strip search policy).
This Court is well aware of the deference due to security institutions such as the USMS in managing arrestees at the Superior Court, but that does not absolve Defendant Marshal Dillard from complying with the law. Deference, in the facts at hand, would go to Policy 99-25 requiring reasonable suspicion, not to the apparent blanket practices of Defendant Marshal Dillard to strip search all arrestees

no matter the crime charged or circumstances *55 involved. Such an absolute rule does not comport with the balancing required by the Supreme Court in Bell.
In sum, Defendant Marshal Dillard is not entitled to qualified immunity because the law was clearly established that blanket strip searches of non-violent, non-felony arrestees were unlawful at the time of the searches at issue here, September 2002. Therefore, Defendant Marshal Dillard’s motion for summary judgment will be denied.

C. Defendant’s Denial of the Strip Searches [10] [11] The Court must tie up one last loose end. Although the above analysis focuses on, and ultimately denies, Defendant’s motion for summary judgment, Plaintiffs also have moved for summary judgment as to liability. Defendant conceded the facts, including the occurrence of the strip searches as explained in Plaintiffs’ testimony, for purposes of Defendant’s own summary judgment motion. See Def.’s Mot. for Summ. J. at 1 [Dkt. # 74]. But, in a later, somewhat curious filing, Defendant contends that the strip searches never even happened, referencing a sworn declaration from a Deputy Marshal who was allegedly on duty the weekend the searches were supposed to have taken place. See Def.’s Opp’n at 5-6 [Dkt. # 78]. The Court must also deny Plaintiffs’ summary judgment motion because genuine issues of material fact remain.6

6

The Court is aware of the Supreme Court’s recent

decision in Ashcroft v. Iqbal, --- U.S. ----, 129 S.Ct.

1937, 1948, 173 L.Ed.2d 868 (2009), requiring a

plaintiff to plead that “each Government-official

defendant, through the official’s own individual

actions, has violated the Constitution.” That standard is

met here, as record evidence supports Plaintiffs’

allegations that Defendant Marshal Dillard was actively

involved in authorizing, implementing, and approving

the District Policy of strip searching pre-arraignment

arrestees without justification, despite a contrary

national rule in USMS Policy 99-25.

IV. CONCLUSION
For the reasons explained above, Plaintiffs’ Motion for Summary Judgment on Liability [Dkt. # 72] will be denied. Defendant Marshal Dillard’s Motion for Judgment on the Pleadings, or in the alternative for Summary Judgment [Dkt. # 74] also will be denied. A memorializing order accompanies this Memorandum
8

Bame v. Dillard, 647 F.Supp.2d 43 (2009) Opinion.
9

 
 Bame v. Dillard, Not Reported in F.Supp.2d (2008)

2008 WL 2168393 Only the Westlaw citation is currently available.
United States District Court, District of Columbia.
Paul BAME, et al., Plaintiffs, v.
Todd Walther DILLARD,1 Defendant.

1

Pursuant to the Court’s Order granting in part and

denying in part Plaintiffs’ Motion to Amend the

Complaint [Dkt. # 56], the only Defendant remaining in

this case is Todd Walther Dillard. See Second Am.

Compl. for Compensatory and Punitive Damages

(“Second Am. Compl.”) [Dkt. # 57] ¶ 8.

Civil Action No. 05-1833 (RMC). | May 22, 2008.
Attorneys and Law Firms Lynn E. Cunningham, DuBois, WY, Zachary J. Wolfe, Washington, DC, for Plaintiffs. William Mark Nebeker, U.S. Attorney’s Office, Washington, DC, for Defendant. Opinion

MEMORANDUM OPINION
ROSEMARY M. COLLYER, District Judge.
*1 The five named Plaintiffs2 in this case were arrested on September 27, 2002, in Washington, D.C., and then allegedly “subjected to unlawful strip searches by deputy U.S. Marshals acting under the supervision of Todd Dillard, then the U.S. Marshal for the District of Columbia Superior Court.” See Second Am. Compl. ¶ 1. The strip searches, Plaintiffs allege, “were conducted without reasonable, particularized, individualized suspicion in violation of their Fourth Amendment right to be free of unreasonable searches and seizures.” Id. They seek to certify a class action, which the Defendant, Marshal Dillard, opposes. For the reasons that follow, Plaintiffs’ Motion for Class Certification [Dkt. # 18] will be conditionally granted without prejudice to the renewal of Defendant’s objections after the close of discovery.

2

The named Plaintiffs are Paul Bame, Ivan Welander,

Greg Keltner, Nicholas Church, and John Joel Duncan.

See Second Am. Compl. ¶ 1.

I. BACKGROUND
Plaintiffs were “arrested by members of the D.C. Metropolitan Police Department (MPD), and cooperating police officers at a large scale, widespread, political protest held in Washington, D.C. on September 27, 2002 near the headquarters for the International Monetary Fund.” Pls.’ Mot. for Class Certification (“Pls.’ Mem.”) at 4. Plaintiffs were arrested for failing to obey police orders while protesting near the intersection of Connecticut Avenue and K Street, N.W., and nearby areas, other than Pershing Park. Following their arrest, the men were held with arrestees from other protests for several hours in the custody of the MPD before being turned over to the custody of the United States Marshals Service (“USMS”).
Plaintiffs seek to certify a class consisting of the following persons:
All men who were: (1) arrested on September 27, 2002 by the D.C. Police officials during a series of mass protests in downtown Washington, D.C.; (2) remanded by D.C. Police, following their arrests, into the custody of the U.S. Marshal[ ] for the District of Columbia prior to being released; and (3) subjected by deputy U.S. Marshals to a strip, visual, body cavity search without any particularized or individualized reasonable suspicion that he was concealing drugs, weapons or other contraband; (4) excluding, however, all men arrested within the confines of Pershing Park on September 27, 2002.
Pls.’ Mem. at 1. Plaintiffs assert that the class may number upwards of one hundred men, that there are common issues that predominate over any individual
1

Bame v. Dillard, Not Reported in F.Supp.2d (2008)
issues, that the claims of the named Plaintiffs are typical of the claims of the class, and that Plaintiffs and their counsel will adequately represent the class.
II. LEGAL STANDARDS
The “party requesting class certification under Rule 23 bears the burden of showing the existence of a class, that all prerequisites of Rule 23(a) are satisfied and the class falls within one of the categories of Rule 23(b).” Bynum v. District of Columbia, 214 F.R.D. 27, 30-31 (D.D.C.2003) (citations omitted).
Under Rule 23(a) of the Federal Rules of Civil Procedure, there are four requirements for certification of a class:
*2 1. the class is so numerous that joinder of all members is impracticable (“numerosity”);
2. there are questions of law or fact common to the class (“commonality”);
3. the claims or defenses of the representative parties are typical of the claims or defenses of the class (“typicality”); and
4. the representative parties will fairly and adequately protect the interests of the class (“adequacy”).
Fed.R.Civ.P. 23(a). Plaintiffs must also satisfy at least one of the subdivisions of Rule 23(b). A plaintiff satisfies Rule 23(b)(2) by showing:
the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.
Fed.R.Civ.P. 23(b)(2). A plaintiff satisfies Rule 23(b)(3) by showing:
(1) the questions of law or fact common to the members of the class predominate over any questions affecting only individual

members; and (2) a class action is superior to other available methods for the fair and efficient adjudication of the controversy.
Fed.R.Civ.P. 23(b)(3).
In deciding a motion for class certification, the “inquiry does not extend to an examination of the merits of the case. Instead the legal standard is whether the evidence presented by plaintiffs establishes a ‘reasonable basis for crediting [plaintiffs’] assertions.’ “ Bynum, 214 F.R.D. at 31 (citing cases); Chang v. United States, 717 F.R.D. 262, 269 (D.D.C.2003) (“Once the existence of a class has been established, the Court does not consider the merits of the plaintiffs’ claims prior to proceeding to a determination of whether the requirements for class certification set forth in Fed. R. Civ P. 23(a) and (b) have been met.”).
III. ANALYSIS
Plaintiffs assert that the proposed class satisfies the requirements of Rule 23 and seek class certification. Defendant Dillard challenges Plaintiffs’ contentions on each of the Rule 23 requirements but focuses primarily on whether Plaintiffs have shown that the class would be so numerous such that joinder of all members is impracticable.
A. Existence of a Class “It is axiomatic that for a class action to be certified a ‘class’ must exist.” Barnes v. District of Columbia, 242 F.R.D. 113, 120 (D.D.C.2007) (citing Simer v. Rios, 661 F.2d 655, 699 (7th Cir.1981)); see also Lewis v. Nat’l Football League, 146 F.R.D. 5, 8 (D.D.C.1992) (clearly defined class is necessary “to ensure that the class is ‘neither amorphous, nor imprecise’ ”) (internal citation omitted). At this juncture, the Court is satisfied that Plaintiffs have proposed a class definition that is tailored properly such that “an individual would be able to determine, simply by reading the definition, whether he ... is a member of the proposed class.” Bynum, 214 F.R.D. at 32; see also Fed.R.Civ.P. 23(c)(1)(C) (“An order [on class certification] may be altered or amended before final judgment.”).
2

Bame v. Dillard, Not Reported in F.Supp.2d (2008)
B. Rule 23(a) Requirements *3 All class actions certified under Rule 23 must meet certain prerequisites listed in subsection (a): there must be numerosity of class members, common questions of law or fact, the representatives must be typical of the class, and there must be adequate representation of the class. Fed.R.Civ.P. 23(a).
1. Numerosity The Federal Rules of Civil Procedure allow a court to certify a class if it concludes that the class would be so numerous that joinder of all members individually is impracticable. See Fed.R.Civ.P. 23(a)(1). Although the Rule “does not mandate use of a mechanical formula for determining numerosity,” Int’l Union v. Clark, No. 02-1484, 2006 U.S. Dist. LEXIS 64908, 2006 WL 2687005, at *17 (D.D.C. Sept. 12, 2006) (citing General Tel. Co. of the N.W., Inc. v. EEOC, 446 U.S. 318, 330, 100 S.Ct. 1698, 64 L.Ed.2d 319 (1980)), courts in this jurisdiction have generally found that the numerosity requirement is satisfied and that joinder is impracticable where a proposed class has at least forty members. See Bynum, 214 F.R.D. at 32 (D.D.C.2003). Plaintiffs need not provide the exact number of potential class members to satisfy the numerosity requirement; however, there must be a reasonable basis for the estimate provided. Id. at 32-33; Pigford v. Glickman, 182 F.R.D. 341, 347 (D.D.C.1998) (“Mere conjecture, without more, is insufficient to establish numerosity ...”). Courts have “discretion to decide whether using the class action mechanism would serve the interests of judicial economy and efficiency.” Int’l Union, 2006 U.S. Dist. LEXIS 64908, 2006 WL 2687005, at *17 (citing Council of and for the Blind of Del. County Valley, Inc. v. Reagan, 709 F.2d 1521, 1544 n. 48 (D.C.Cir.1983)).
At present, there are five named Plaintiffs in this action. Although the “exact number of the class membership is not known,” Plaintiffs estimate that the putative class consists of at least forty-five men, and possibly more than one hundred men. See Second Am. Compl. ¶ 10. In support of that estimate, Plaintiffs contend that
Lock Up Lists were prepared by MPD officers at the Blue Plain holding facility where named plaintiffs and members of the proposed plaintiff class were taken

after their arrests. These lists show ninety-two persons with male names, or listed by the male names of ‘John Doe,’ a strong indicator that the new arrestee was a male person. These lists are sufficient evidence at this stage of the proceedings of the number of men who constitute the proposed class.
Pls.’ Mem. at 13; Ex. 1 (“IMF Mass Protest Lock Up List”). In addition to the Lock Up Lists, Plaintiff Paul Bame, according to Plaintiffs, is prepared to testify that he personally witnessed “at least eighty men” from the protests held in two cell blocks; that he was strip searched “in a batch of eight to twelve men”; and that “he understood that all the men held in the two cell-blocks were strip searched in batches.” See Pls.’ Mem. at 13. Plaintiff Greg Keltner is prepared to offer similar testimony. Id. at 14. After discovery, the proposed class will be “more refined” and will be more readily “identifiable from records in the possession of defendant, and from other official records.” Second Am. Compl. ¶ 11; Pls.’ Mem. at 15.
*4 Defendant Marshal Dillard questions the reliability of Plaintiffs’ estimates. First, he argues that some, if not many, of the names on the Lock Up Lists are of individuals who are already represented in separate class actions stemming from the arrests on September 27, 2002. Second, he contends that the class may not, by definition, contain arrestees who refused to provide their names to police officers upon arrest. According to Marshal Dillard, the failure to provide identifying information to an arresting officer may provide reasonable suspicion warranting a strip search. See Def.’s Supp. Mem. in Opp’n to Pls.’ Mot. for Class Certification (“Def.’s Supp. Mem.”) [Dkt. # 58] at 1. The Court will address these arguments in turn.
i. Separate Class Actions This is not the only case stemming from the arrests on September 27, 2002 or regarding allegations of strip searches of arrestees conducted by the USMS at Superior Court. See Def.’s Opp’n to Pls.’ Mot. for Class Certification (“Def.’s Opp’n”) [Dkt. # 25] at 2 (“[S]everal class actions are already extant and one of them is admittedly pursuing claims for at least a significant part of the proposed class with the intent of securing from the District of Columbia damages for the same conduct as is
3

Bame v. Dillard, Not Reported in F.Supp.2d (2008)

at issue here (reducing the number of potential class-members who can recover here).”). In Barham v. Ramsey, No. 02-2283 (D.D.C. filed Nov. 19, 2002), a complaint was filed in an effort to pursue claims on behalf of “approximately 400+ persons” attending demonstrations on September 27, 2002, who were arrested at Pershing Park and subjected to harsh conditions of confinement. See Feb. 7, 2003 Mot. for Class Certification and Notice. In Johnson v. District of Columbia, No. 02-2364 (D.D.C. filed Dec. 2, 2002), two classes of female plaintiffs are challenging the alleged practice of the USMS of strip searching female arrestees. See Feb. 8, 2008 Order on Class Certification.3 In Burgin v. District of Columbia, No. 03-2005 (D.D.C. filed Sept. 23, 2003), the action, which has since settled, was described as follows:

3

The Johnson plaintiffs advance, inter alia, an “equal

protection” claim that is based on the allegation that

female arrestees were blanket strip searched, but not

males. In response to the USMS’s assertion that men

were also subject to strip searches, the Johnson

plaintiffs amended their complaint to include male

plaintiffs. Until the class question in Johnson was

briefed and decided, it was unclear whether these

Plaintiffs and their putative class would be part of

Johnson or part of a separate suit.

This is a class action seeking damages and other relief for illegal mass arrest, handcuffing, detention, and prosecution of persons who were participating in or observing peaceful demonstrations in Washington, D.C. on the morning of Friday September 27, 2002. The action joins the claims of two classes. Plaintiffs were trapped, prevented from leaving, and arrested by converging lines of District of Columbia police officers at one of two locations: (1) the eastern sidewalk of Connecticut Avenue between K and L Streets, N.W., where forty-two persons (the first class) were arrested; and (2) the sidewalk near the northwest corner of Vermont Avenue and K Street, N.W., where approximately 150 persons (the second class) were arrested. See Sept. 26, 2003 Complaint. Defendant argues that many of the arrestees on the Lock Up List (Pls.’ Mem., Ex. 1) were likely arrested in Pershing Park and are therefore members of the Barham class, not the instant putative class.4 Mr. Bame has “offered no basis to conclude that the full 80 men he saw are likely members of the class, as opposed to members of

the class at Pershing Park.” Def.’s Supp. Mem. at 5-6. “If the actual number of [putative class members] is unsupported and as vaguely described as Plaintiffs have made it,” argues Marshal Dillard, “then the Court would not abuse its discretion in concluding that Plaintiffs have failed to meet their burden as to numerosity.” See Def.’s Opp’n at 19.

4

Approximately 400 people were arrested in Pershing

Park on September 27, 2002, under virtually the same

circumstances as the putative class members here. See

Chang, 217 F.R.D. at 264.

*5 The Court agrees with Defendant Dillard that the estimates provided by Plaintiffs are vague in nature. Plaintiffs themselves suggest that some of the names on the Lock Up List may be of men arrested in Pershing Park. See Second Am. Compl. ¶ 10 (“On information and belief, at least half this number were arrested at mass protests other than at Pershing Park.”). Plaintiffs also concede that the proposed class members “are most likely members of the plaintiff class certified by this Court in [Burgin ].” See Pls.’ Mem. at 5-6. However, Plaintiffs’ proposed class is unique in that “none of the other actions [including Burgin ] entail the claims herein. In other words, none of the other suits raise claims for monetary damages against defendant [ ].” Id. at 6.
The Court finds itself in a position similar to that of the court in In re Newbridge Networks Security Litigation, 926 F.Supp. 1163 (D.D.C.1996). In Newbridge, the plaintiffs sought class certification on behalf of all persons who purchased certain stock and suffered damage. 926 F.Supp. at 1175. The defendant opposed certification, arguing that there were insufficient facts to support, inter alia, estimates of the number of putative class members. Id. at 1175-76. The court seriously considered the defendant’s argument and concluded that
Federal Rule of Civil Procedure 23(c)(1) permits this Court to conditionally grant plaintiffs’ motion for class certification and provides an order with respect to class certification “may be altered or amended before the decision on the merits.” As discussed above, defendants argue that plaintiffs have alleged insufficient information to justify class certification. An accompanying Order will grant plaintiffs[’] motion for class certification on a conditional basis, without prejudice to renewal of defendants’ objections at the close of discovery. At that time, this Court may
4

Bame v. Dillard, Not Reported in F.Supp.2d (2008)
reconsider whether the class should be certified ...
Id. at 1178. Likewise here, the Court has concern that numerosity has not been achieved. However, as in Newbridge, Plaintiffs’ argue that “their inability to be more specific in their allegations should be excused at this pre-discovery stage of the litigation .... [and] additional facts are within [Defendant’s] control.” Id. at 1173. The Court will conditionally certify the instant class, and may revisit certification after discovery is completed upon the Defendant’s motion.
ii. Failure to Provide Identifying Information to Arresting Officers Defendant argues that the class may not contain arrestees who refused to provide their names to police officers upon arrest, including the named Plaintiffs, who were listed on the Lock Up List as “John Does.” This limitation, according to Marshal Dillard, inevitably means the class is even smaller, limited to the men who provided identifying information to arresting officers. See Def .’s Supp. Mem. at 1 (citing Kelly v. Foti, 77 F.3d 819 (5th Cir.1996)). According to Defendant, “[a] careful reading of Kelly supports the claims made by Defendant[ ] that a reasonable law enforcement officer could conclude that a person’s failure to identify themselves to the police could properly be seen as sufficient reasonable suspicion to warrant the searches alleged in the plaintiffs’ complaints.” Id.
*6 Plaintiffs are challenging whether deputy U.S. Marshals subjected class members to a “blanket strip search” “without any particularized or individualized reasonable suspicion that he was concealing drugs, weapons or other contraband.” See Pls.’ Mem. at 1; Pls.’ Reply in Supp. of Mot. for Class Certification (“Pls.’ Reply”) [Dkt. # 31] at 9. Nothing in the record, as it stands, supports the contention that there were any “individualized determinations” made as to any arrestee. Nevertheless, the Court need not analyze the applicability of Kelly at this juncture; whether particular searches of particular class members had a were reasonable articulable suspicion is an affirmative defense that may be raised by Defendant at the appropriate time. See Mack v. Suffolk County, 191 F.R.D. 16, 24 (D.Mass.2000).
For the reasons stated above, Plaintiffs have conditionally shown that the putative class meets the numerosity requirement of Rule 23(a)(1).

2. Commonality and Typicality Federal Rule of Civil Procedure 23(a)(2) requires that there be questions of law or fact common to the class. Fed.R.Civ.P. 23(a)(2). “The commonality test is met when there is at least one issue, the resolution of which will affect all or a significant number of the putative class members.” Meijer, Inc. v. Warner Chilcott Holdings Co. III, Ltd., 246 F.R.D. 293, 300 (D.D.C.2007). It is not necessary that every issue of law or fact be the same for each class member. Rather, if “there is some aspect or feature of the claims which is common to all,” the requirement is satisfied. Barnes, 242 F.R.D. at 121 (internal citations omitted); Bynum, 214 F.R.D. at 32 (factual variation among class members does not defeat the commonality requirement so long as a single aspect or feature of the claims is common to all proposed class members).
The typicality requirement of Rule 23(a)(3) is satisfied “if the claims of the named plaintiffs arise from the same practice or course of conduct that gives rise to the claims of the proposed class members.” Marisol A. by Forbes v. Giuliani, 929 F.Supp. 662, 691 (S.D.N.Y.1996). Because “[t]he crux of both commonality and typicality requirements is to ensure that the maintenance of a class action is economical, and that the named Plaintiffs’ claims and the class claims are so inter-related that the interest of the class members will be fairly and adequately protected in their absence,” it is proper to discuss them together. Dodge v. County of Orange, 226 F.R.D. 177, 180 (S.D.N.Y.2005).
Plaintiffs have successfully established that there is sufficient commonality and typicality for the class to be certified. As this Court said in a recent order certifying a class action, “ ‘a strip-search, by its very nature, constitutes an extreme intrusion upon personal privacy, as well as an offense to the dignity of the individual.’ ” Johnson v. District of Columbia, 248 F.R.D. 46, 53 (D.D.C.2008) (quoting Wood v. Clemons, 89 F.3d 922, 928 (1st Cir.1996)). This intrusion is alleged to have been commonly experienced by the putative members of the class. Further, Plaintiff has laid out issues of law and fact that are common to all members of the proposed class, including, primarily, whether the searches violated the Fourth Amendment. See Pls.’ Mem. at 16.
*7 Regarding typicality, Rule 23 does not require that the representative plaintiffs endure precisely the same injuries that may have been sustained by other class members,
5

Bame v. Dillard, Not Reported in F.Supp.2d (2008)
only that the harm complained of be common to the class, and that the named plaintiffs demonstrate a personal interest or threat of injury that is real and immediate, not conjectural or hypothetical. See Bynum, 214 F.R.D. at 34. The typicality requirement is satisfied “if the claims of the named plaintiffs arise from the same practice or course of conduct that gives rise to the claims of the proposed class members.” Marisol, 929 F.Supp. at 691. As set forth in the Second Amended Complaint, each of the named Plaintiffs was arrested and was allegedly subjected to a “full body strip search, without any individualized, reasonable suspicion upon which to base such searches. A few hours later, all members of the class, including the ... named plaintiffs, were released by a judicial officer of D.C. Superior Court.” Pls.’ Mem. at 17. Although the circumstances of the strip searches at issue may have varied by some degree, demonstrating typicality “does not mean showing that there are no factual variations between the claims of the plaintiffs.” Bynum, 214 F.R.D. at 35.
The Court finds that Plaintiffs have satisfied the commonality and typicality requirements of Rule 23(a).
3. Adequacy of Representation Federal Rule of Civil Procedure 23(a)(4) requires that a certified class have adequate representation. This requirement involves both adequacy of the named plaintiffs and adequacy of counsel. The requirement is met when: (1) there is no conflict of interest between the legal interests of the named plaintiffs and those of the proposed class; and (2) counsel for the class is competent to represent the class. Twelve John Does v. District of Columbia, 117 F.3d 571, 575 (D.C.Cir.1997). The adequacy of representation requirement involves a constitutional due process dimension because of the binding effect of a final judgment on absent class members. See Nat’l Ass’n of Regional Med. Programs, Inc. v. Mathews, 551 F.2d 340, 345-46 (D.C.Cir.1976).
In this case, as already discussed with regard to numerosity, the representative Plaintiffs’ interests do not conflict with those of the putative class, whether or not they identified themselves to arresting officers.
Plaintiffs’ counsel, Messrs. Lynn E. Cunningham and Zachary Wolfe, are experienced litigators with sufficient years of experience to handle this matter. See Pls.’ Mem. at 18-20, Exs. 2-5. Defendant, however, suggests that Mr. Cunningham may have a conflict of interest because he was formerly one of the counsel for plaintiffs in Johnson

v. District of Columbia. See Def.’s Opp’n at 27 (citing District of Columbia Rules of Professional Responsibility, Rule 1.9 (precluding a lawyer who has formerly represented a client in a matter from thereafter representing another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client, unless the former client consents after consultation)). Because of his prior representation, Defendant argues, Mr. Cunningham may be faced with taking a position in this case which adversely affects the interests of the plaintiff classes in Johnson on their equal protection claim. Defendant argues that Mr. Cunningham’s pursuit of men’s interests here might adversely affect the Johnson women’s interests.

*8 The Court disagrees. As Plaintiffs explain,

the Bame class is not seeking to

prove that there never was a

long-standing

policy

of

discrimination among women

arrestees, but at most that there was

one exceptional event of illegal[ ]

strip searching a relatively small

group of men on one day out of the

many years covered by the Johnson

claims. The existence of a blanket

strip search in violation of the

Fourth Amendment on one day of

men does not disprove the Fifth

Amendment claim of the women

that there was a policy stretching

over several years.

See Pls.’ Reply at 18-19. The Bame and Johnson cases are not related in any material way; there is no conflict in Mr. Cunningham’s representation of the Bame class. Accordingly, the Court is satisfied that Plaintiffs have fulfilled the requirements of Rule 23(a)(4).

C. Rule 23(b) Requirements After the requirements of Rule 23(a) are met, a putative class must demonstrate that it fits under one of Rule 23(b)’s class types. Plaintiffs seek certification pursuant to Rule 23(b)(3). See Pls.’ Mem. at 20. The Court will conditionally certify the class under Rule 23(b)(3) because: (1) class-wide issues predominate and (2) a class action is “superior to other available methods to the fair and efficient adjudication of the controversy.”
6

Bame v. Dillard, Not Reported in F.Supp.2d (2008)
Fed.R.Civ.P. 23(b)(3); see Bynum, 214 F.R.D. at 39.
1. Predominance of Common Questions at Law “In order to meet the predominance requirement of Rule 23(b)(3), a plaintiff must establish that the issues in the class action that are subject to generalized proof, thus applicable to the class as a whole, ... predominate over those issues that are subject only to individualized proof.” Amchem Products, Inc. v. Windsor, 521 U.S. 591, 623, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). The predominance requirement is “more stringent” and “far more demanding” than the commonality requirement of Rule 23(a). Id. at 609, 623.
Defendant argues that class certification is inappropriate because “individualized adjudication would be required of each class member’s very entitlement to prevail” and “courts have concluded that the predominance requirement is not satisfied and class certification is improper when individualized consideration would be required for one or more issues.” Def.’s Opp’n at 29-30 (citing cases). According to Defendant, individualized determinations would need to be made whether, in each instance, a class member was searched, and if so, whether there was a lawful basis for the search. Id. at 30. In addition, “the issue of the extent of the injury suffered by each Plaintiff as a result of the purported violation must be established.” Id.
The Court has already addressed a similar challenge in Johnson and will repeat what it told the parties there:
The Court disagrees that determination of damages in this case would require individualization such that Plaintiffs cannot establish predominance. First, it maybe the case that “the determination of damages in this case [does not] require individualization.” See Dellums v. Powell, 566 F.2d 167, 189 (D.C.Cir.1977). Moreover, the mere existence of individualized damages in a Rule 23(b)(3) class does not cause individual issues to predominate over common issues on liability or causation. See Eubanks v. Billington, 110 F.3d 87, 96 (D.C.Cir.1997). There are many ways of dealing with possible individual damages issues, if necessary, such as “(1) bifurcating liability and damage trials with the same or different juries; (2) appointing a magistrate judge or special master to preside over individual damages proceedings; (3) decertifying the class after the liability trial and providing notice to class members concerning how they may proceed to

prove damages; (4) creating subclasses; or (5) altering or amending the class.” See Carnegie v. Household Int’l, Inc., 376 F.3d 656, 661 (7th Cir.2004).
*9 Johnson v. District of Columbia, 248 F.R.D. 46, 57 (D.D.C.2008).
The Court will reserve ruling on methodology issues for another day but is satisfied that Plaintiffs have satisfied the predominance requirement for purposes of class certification.
2. Whether Class Action is Superior The second prong of Rule 23(b)(3) is superiority. Under this requirement, “maintaining the present action as a class action must be deemed by the court to be superior to other available methods of adjudication. A case will often meet this standard when ‘common questions of law or fact permit the court to consolidate otherwise identical actions into a single efficient unit.’ ” Bynum, 217 F.R.D. at 49 (citations omitted).
As Plaintiffs explain, “[h]andling this matter through a series of individual cases is a possible, but inferior alternative.” Pls.’ Mem. at 21. Managing individually filed lawsuits would create a serious administrative challenge for the Court, as well as for counsel. The putative class members are dispersed geographically, which favors the class action vehicle, and damages in individual cases may be inadequate to attract sufficient counsel to represent individuals on a case-bycase basis. Plaintiffs have demonstrated that conditional class certification is superior to other methods of adjudication.
D. Class Notification Federal Rule of Civil Procedure 23(c)(2) provides that, in any class action maintained under Rule 23(b)(3), notice shall be given to the class in the best practicable manner. Plaintiffs seek to have the costs of any notice to class members paid for by Defendant. See Pls.’ Mem. at 24. Defendant, not surprisingly, opposes. See Def.’s Opp’n at 32. The Court directs Plaintiffs to pay for this cost, since class certification is conditional, and subject to a claim against the Defendant is Plaintiffs’ prevail as a class.
E. Appointment of Class Counsel
7

Bame v. Dillard, Not Reported in F.Supp.2d (2008)
Federal Rule of Civil Procedure 23(g)(1)(C)(I) requires the Court to appoint adequate class counsel to represent the class after considering: “(1) the work counsel has done in identifying or investigating potential claims in this action, (2) counsel’s experience in handling class actions, other complex litigation, and claims of the type asserted in the action, (3) counsel’s knowledge of the applicable law, and (4) the resources counsel will commit to representing the class.” See Bynum v. District of Columbia, 384 F.Supp.2d 342, 366 (D.D.C.2005). As discussed above, the Court is satisfied that Plaintiffs’ counsel are experienced litigators who are competent to represent the class. As such, they will be appointed class counsel in the accompanying Order.

IV. CONCLUSION
For the foregoing reasons, Plaintiffs’ Motion for Class Certification [Dkt. # 18] will be conditionally granted without prejudice to Defendant’s renewed objections after the close of discovery. See Lightfoot v. District of Columbia, 246 F.R.D. 326, 334 n. 6 (courts may “reassess class certification rulings as the case develops, and certify a class or alter a certification decision if necessary in light of developments in the case”). A memorializing Order accompanies this Memorandum Opinion.
	  

8

 
 466 F.Supp.2d 105 (2006)
Paul BAME, et al., Plaintiffs, v.
John F. CLARK, et al., Defendants.
Civil Action No. 05-1833(RMC).
United States District Court, District of Columbia.
December 11, 2006.
106 *106 Lynn E. Cunningham, Dubois, WY, Zachary J. Wolfe, People's Law Resource Center, Washington, DC, for Plaintiffs.
William Mark Nebeker, U.S. Attorney's Office, Washington, DC, for Defendants.
MEMORANDUM OPINION
COLLYER, District Judge.
Paul Bame, Gregory Keltner, and Ivan Welander sue John F. Clark, the Acting Director of the United States Marshals Service, Steve Conboy, the U.S. Marshal for the Superior Court of the District of Columbia, and Todd 107 Dillard, former U.S. Marshal for the Superior Court, on behalf of themselves and other men[1] who were *107 allegedly strip searched after being arrested on September 27, 2002, during several large protests against the policies of the International Monetary Fund ("IMF"). Messrs. Clark and Conboy are sued only in their official capacities; Mr. Dillard is sued only in his individual capacity. Defendants have filed a motion to dismiss or, in the alternative, for summary judgment. In response; Plaintiffs drop their claims against Messrs. Clark and Conboy and withdraw Counts 3 and 4. What remains are claims under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) and 42 U.S.C. § 1983 against Mr. Dillard and unnamed Doe defendants. Mr. Dillard moves for dismissal, arguing that the Bivens count is untimely, that he is not a State actor subject to suit under § 1983, and in either case he is entitled to qualified immunity. The Court finds that the allegations, against Mr. Dillard are sufficient to withstand dismissal under Rule 12(b)(6) and will therefore deny Defendants' motion as to him.
I. FACTUAL BACKGROUND
Plaintiffs participated in protest demonstrations against the IMF and were arrested on September 27, 2002. First Am. Compl. ¶¶ 4-6, 17. Hundreds of other protestors were similarly arrested by the D.C. Metropolitan Police Department ("MPD"). Id. ¶ 18. Sometime during the evening of September 27, the arrestees were remanded to the custody of the U.S. Marshals Service ("USMS") and were held in cells at the D.C. Superior Courthouse for arraignment. Id. ¶ 19.
While in custody of the USMS, the arrestees were allegedly subjected to strip searches without individualized reasonable suspicion for doing so. Id. ¶ 21. It is asserted that these strip searches were "intimidating, humiliating, and subjected each class member to strong emotional distress." Id. ¶ 24. Ultimately, all arrestees were either' released on bond after pleading guilty to a misdemeanor offense such as failure to obey a police officer or "incommoding," or were released without any charge being advanced. No arrestee was tried or convicted of any felony. Id. ¶ 27. Plaintiffs filed suit on September 15, 2005. They seek class certification, damages, and attorneys' fees and costs. Id., Prayer for Relief ¶¶ 1-3.

II. LEGAL STANDARDS
In resolving a Rule 12(b)(6) motion, the Court must treat the complaint's factual allegations 0907 including mixed questions of law and fact 0907 as true and draw all reasonable inferences in the plaintiffs favor. Warren v. District of Columbia, 353 F.3d 36, 40 (D.C.Cir.2004); Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 165 (D.C.Cir.2003). It is not necessary for the plaintiff to plead all elements of his prima facie case, see Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511-14, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002), or to "plead law or match facts to every element of a legal theory," Krieger v. Fadely, 211 F.3d 134, 136 (D.C.Cir.2000) (internal quotations and citation omitted). The Court will not dismiss a complaint for failure to state a claim unless the defendant can show that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Kingman Park Civic Ass'n v. Williams, 348 F.3d 1033, 1040 (D.C.Cir. 2003); Gilvin v. Fire, 259 F.3d 749, 756 (D.C.Cir.2001).
108 *108 In deciding a 12(b)(6) motion, the Court may typically consider only "the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint, and matters about which the Court may take judicial notice." Gustave-Schmidt v. Chao, 226 F.Supp.2d 191, 196 (D.D.C.2002) (citation omitted). However, the Court may, in its discretion, consider matters outside the pleadings and thereby convert a Rule 12 (b)(6) motion into a motion for summary judgment. See Fed.R.Civ.P. 12(b); Yates v. Dist. of Columbia, 324 F.3d 724, 725 (D.C.Cir.2003).
III. ANALYSIS
A. Claims Against Messrs. Clark and Conboy.
The Amended Complaint names as defendants Messrs. Clark and Conboy in their official capacities, and alleges against them causes of action under 42 U.S.C. § 1983 for failure to train and for maintenance of an unlawful custom, policy, or practice. See Am. Compl. ¶¶ 49-58. Defendants move to dismiss the claims against Messrs. Clark and Conboy on a variety of grounds, including sovereign immunity. Def.'s Mem. of P. & A. in Supp. of Mot. to Dismiss or, in the Altern., for Summ. J. ("Def.'s Mem.") at 2-5. In response, Plaintiffs concede that they cannot state official-capacity claims against those Defendants. Pl.'s Mem. of P. & A. In Opp. to Ders Mot. to Dismiss or, in the Altern., for Summ. J. ("Pl.'s Mem.") at 1. Accordingly, the Court will grant Defendants' motion as to Messrs. Clark and Conboy, and the claims against them will be dismissed.
B. Timeliness of Bivens Claims.
The only remaining named Defendant is former Marshal Dillard, who is sued (along with unnamed Doe defendants) in his individual capacity under both Bivens and 42 U.S.C. § 1983. Mr. Dillard first argues that the Bivens claim against him is subject to dismissal because it is barred by the statute of limitations.
The cause of action under Bivens against a federal employee who allegedly has violated a citizen's constitutional rights was established by the Supreme Court and is found in no statute. The Court made no explicit finding and gave no direction as to the appropriate statute of limitations. Therefore, the federal courts look to the law of the forum State, here the District of Columbia, for guidance. See, e.g., Doe v. U.S. Dep't of Justice, 753 F.2d 1092, 1114 (D.C.Cir.1985). Defendant urges the Court to adopt the one-year statute of limitations set forth at D.C.Code § 12-301(4) which applies to actions "for libel, slander, assault, battery, mayhem, wounding, malicious prosecution, false arrest or false imprisonment." Def.'s Mem. at 13. Plaintiffs argue that the statute of limitations in D.C.Code § 12-301(8), which gives three years to institute a suit on a cause of action "for which a limitation is not otherwise specially prescribed," should apply. Pl.'s Mem. at 16.
In this Circuit, the state of the law is that the three-year statute of limitations found in " § [12-]301(8) applies to most Bivens actions," unless the claim is "for constitutional torts specifically listed" in § 12-301(4). Banks v. Chesapeake & Potomac Tel. Co., 802 F.2d 1416, 1428-29 (D.C.Cir.1986) (citing Hobson v. Wilson, 737 F.2d 1, 32 (D.C.Cir.1984)). Defendant need not fear that the Circuit (or this Court) is blindly relying on Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985), which applied the personal injury statute of limitations to actions under 42 U.S.C. § 1983. According to Defendant, "[c]ourts in other jurisdictions have . . . incorrectly

109 assumed that *109 the statutory analysis applied in Wilson should also be applied in the Bivens context." Defs.' Mem. at 13 n. 4. In Banks, the D.C. Circuit addressed Garcia and noted that "[i]f the Garcia opinion also applies to Bivens actions, this case-by-case approach will no longer be valid." Id. at 1429 n. 22. Banks, which is controlling, recognized that the personal injury statute of limitations does not automatically apply to Bivens claims.
The question is, therefore, whether or not Plaintiffs' claims 0907 as pled in the Amended Complaint 0907 are most analogous to the specific torts identified in § 12-301(4). Mr. Dillard cites Profitt v. District of Columbia, 790 F.Supp. 304, 310 (D.D.C. 1991), for the proposition that strip searches would constitute an assault if not lawfully conducted. Finding the statute of limitations for assault to be one year under § 12-301(4), he argues that the Bivens claim is untimely. Def.'s Reply Mem. at 17. Plaintiffs argue that their Bivens claim is in the nature of a personal injury claim and, as explicitly pled in the Amended Complaint, a violation of their Fourth Amendment rights to be free from unreasonable searches. Pl.'s Mem. at 16-17. Since neither of these kinds of claims is specifically listed in § 12-301(4), they rely on § 12-301(8)'s three-year limitations period. Id.
In deciding a motion to dismiss, the Court must give the Plaintiffs the benefit of all reasonable inferences that might be found in their complaint. The Amended Complaint specifically alleges that the Plaintiffs "have a right protected under the Fourth Amendment to the United States Constitution not to be subjected to unreasonable searches and seizures by persons acting under United States . . . governmental authority." First Am. Compl. ¶ 31. Looking at this allegation in the light most favorable to Plaintiffs, the Court does not agree that it is analogous to an assault claim. Although the allegedly unconstitutional search was of Plaintiffs' bodies and may have constituted an assault if not authorized by law, the harm transcends that of a mere assault. The alleged injury was not only to Plaintiffs' bodies and personal dignity, it was allegedly to Plaintiffs' rights against unwarranted government intrusion into places in which they had a reasonable expectation of privacy. .The Court will not shortchange the Plaintiffs' pleading and erase its constitutional allegations by transforming the suit into a common-law assault case 0907 especially at this stage in the proceedings. Accordingly, the motion to dismiss the Bivens claim as untimely will be denied.
C. Section 1983 Claims.
Mr. Dillard moves to dismiss the § 1983 claim against him because only state actors can violate § 1983 and Mr. Dillard was a federal employee. Def.'s Mem. at 5-12. Plaintiffs do not dispute that § 1983 applies only to state actors; rather, they argue that the D.C. Superior Court Marshals also serve as agents of the District of Columbia when they hold arrestees in the Superior Court jail cells and, therefore, are potentially subject to liability as "State" actors. Pl.'s Mem. at 19-21.
The Court concludes that the Amended Complaint sufficiently alleges that former Marshal Dillard and the unnamed Doe defendants were acting under color of D.C. law when they strip searched Plaintiffs and the putative class members. Specifically, the Amended Complaint alleges that former Marshal Dillard and the Doe defendants were acting jointly with the District of Columbia and the MPD for purposes of policing the conduct of protestors on September 27, 2002, and that former Marshal Dillard and his deputies derived their authority over 110 Plaintiffs from cooperative *110 agreements between the District of Columbia and the Marshal's Service. First Am. Comp. ¶¶ 40-41. Plaintiffs also contend that former Marshal Dillard's conduct was funded in part by the District of Columbia. Id. at ¶ 42. These allegations 0907 while scant 0907 sufficiently allege state action. See Williams v. United States, 396 F.3d 412, 414 (D.C.Cir.2005) (holding that a person may be considered a state actor for purposes of § 1983 if he is a "willful participant in joint activity with the State or its agents."); see also Case v. Milewski, 327 F.3d 564, 567 (7th Cir.2003) ("it is assumed that a § 1983 action can lie against federal employees 0907 as it can against private individuals 0907 if they conspire or act in concert with state officials to deprive a person, of her civil rights under color of state law."); cf. Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 937, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982) (holding that conduct is actionable under § 1983 if it is "fairly attributable to the State.").
Former Marshal Dillard disputes these allegations and argues that there was no concerted action between him and the District of Columbia. See Def.'s Mem. at 11-12. But because Mr. Dillard submitted no evidence supporting the factual contentions in his briefs, the Court declines to exercise its discretion to convert the motion into one for summary judgment. This does not mean, of course, that Plaintiffs have established that former

Marshal Dillard was a state actor; discovery may' well prove that he was not Moreover, the Court's ruling does not mean that Plaintiffs are free to pursue both their Bivens theory and their § 1983 theory all the way to trial. The Court construes the Amended Complaint to present alternative theories of liability based on Plaintiffs' current information and belief, which they may do at the pleading stage. See, e.g., Weyrich v. New Republic, Inc., 235 F.3d 617, 628 (D.C.Cir.2001) (holding that plaintiffs may plead similar but mutually exclusive torts in the alternative). Once discovery has concluded, Mr. Dillard will be free to move for summary judgment on Plaintiffs' § 1983 claim 0907 assuming, of course, that the facts ultimately support his contention that he was a not a state actor.
D. Qualified Immunity.
Mr. Dillard also argues that regardless of what theory of liability is asserted against him, he is entitled to qualified immunity for any claims arising out of alleged strip searches at the D.C. Superior Court. Def.'s Mem. at 16-24. The first step in deciding if qualified immunity applies is to determine whether the complaint alleges the deprivation of a constitutional right. Int'l Action Ctr. v. United States, 365 F.3d 20, 24 (D.C.Cir.2004). Mr. Dillard's arguments as to why the strip searches were reasonable and did not violate the Fourth Amendment are based on a wide range of factual contentions, many of which Plaintiffs dispute. See Def.'s Mem. at 21-23; Pl.'s Mem. at 5-7, 10. Given that the constitutionality of the strip searches depends, inter alia, upon what facts were known to and considered by the officers who conducted the searches, the Court declines to consider Defendants' argument until a more fully developed factual record is established through discovery. Because the Court declines to convert Defendants' motion into one for summary judgment, it will deny Plaintiffs' motion to take discovery under Rule 56(f) as unnecessary. For purposes of the present motion, the Amended Complaint alleges that U.S. Marshals subjected class members to blanket strip searches without a reasonable individualized suspicion that the class members were concealing weapons or contraband. See, e.g., First Am. Compl. ¶ 21. These allegations, 111 if true, could establish violations of the *111 Fourth Amendment. See, e.g., Shain v. Ellison, 273 F.3d 56, 62-66 (2d Cir.2001) (holding that a county jail's blanket strip search policy violated Fourth Amendment).
Even though Plaintiffs have alleged the violation of a constitutional right, former Marshal Dillard may still be entitled to qualified immunity at this stage if the constitutional right was not clearly established at the time of the alleged violation. See Int'l Action Ctr., 365 F.3d at 24. Although there are no D.C. Circuit opinions addressing the exact conduct alleged here, relevant Supreme Court authority provides sufficiently clear guidance to government officials regarding the proper scope of strip searches of arrestees such as the putative class members. See Bell v. Wolfish, 441 U.S. 520, 558-60, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) (establishing a balancing test to determine whether a strip search is valid under the Fourth Amendment). Based on Bell, the Court finds that it would have been clear to any reasonable official in former Marshal Dillard's position that strip searching all misdemeanor arrestees in the putative class, without any individualized suspicion that they were concealing contraband, was unconstitutional under the Fourth Amendment. Accordingly, former Marshal Dillard is not entitled to qualified immunity at this stage in the proceeding.
E. Lack of Standing.
Finally, Defendants argue for dismissal on the ground that the named Plaintiffs are inadequate to represent the class because their names do, not appear on the Lock Up lists which they attached to their motion for class certification. Def.'s Mem. at 14. This argument is, obviously, more properly considered in the context of Plaintiffs' motion for class certification, not in this motion to dismiss. The Court will therefore consider this argument when the time is right.
IV. CONCLUSION
For the foregoing reasons, the Court will grant Defendants' motion to dismiss in part and deny it in part. Because Plaintiffs concede that they cannot state official capacity claims against Messrs. Clark and Conboy, the motion as to those Defendants will be granted. The motion will be denied, however, as to the claims against former Marshal Dillard because the Amended Complaint adequately alleges both a Bivens claim and, in the alternative, a § 1983 claim against him. A memorializing order accompanies this Memorandum Opinion.

ORDER
For the reasons stated in the Memorandum Opinion filed separately and contemporaneously herewith, it is hereby
ORDERED that
1. Defendants' Motion to Dismiss or, in the Alternative, for Summary Judgment [Dkt. # 30] is GRANTED IN PART and DENIED IN PART:
a. Defendants' motion to dismiss the claims against John F. Clark and Steve Conboy (First Am. Compl. Counts 3 and 4) is GRANTED;
b. Defendants' motion to dismiss the claims against Todd Dillard (First Am. Compl. Counts 1 and 2) is DENIED;
2. Plaintiffs' Motion to Take Discovery [Dkt. # 35] and Motion Stay Consideration of Motion to Dismiss [Dkt. # 36] are DENIED.
SO ORDERED.
[1] The putative class in this case is confined to male arrestees because, according to Plaintiffs, the claims of female arrestees "are addressed under separate litigation." First Am. Compl. ¶ 28. The Court assumes that Plaintiffs are referring to Johnson v. District of Columbia, Case No. 02-cv-2364 (RMC), which is being brought on behalf of female individuals who were strip searched at the D.C. Superior Court. The Court acknowledges, but expresses no opinion regarding, the apparent inconsistencies between the factual allegations in Johnson and this case.
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 Case: 1:05­cv­1833 As of: 10/16/2012 03:29 AM EDT 1 of 13
CLOSED,JURY,TYPE−L
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:05−cv−01833−RMC

BAME et al v. CLARK et al Assigned to: Judge Rosemary M. Collyer Case in other court: USCA, 07−05007
USCA, 09−05330 Cause: 42:1983 Civil Rights Act Plaintiff PAUL BAME
Plaintiff GREGORY KELTNER
Plaintiff IVAN WELANDER Plaintiffs, on behalf of themselves and all other similarly situated
Plaintiff NICOLAS CHURCH

Date Filed: 09/15/2005 Date Terminated: 12/14/2009 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant
represented by Lynn E. Cunningham 306 Westview Dr. DuBois, WY 82513 (307) 455−3334 Email: lcunningham@law.gwu.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED
Zachary J. Wolfe GEORGE WASHINGTON UNIVERSITY 801 22nd Street, NW Rome Hall 557 Washington, DC 20052 (202) 265−5965 Fax: (202) 250−6712 Email: zwolfe@PeoplesLawResourceCenter.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Lynn E. Cunningham (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Zachary J. Wolfe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Lynn E. Cunningham (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Zachary J. Wolfe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Lynn E. Cunningham (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Zachary J. Wolfe (See above for address)

Case: 1:05­cv­1833 As of: 10/16/2012 03:29 AM EDT 2 of 13

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff JOHN JOEL DUNCAN

represented by Lynn E. Cunningham (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Zachary J. Wolfe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant JOHN F. CLARK In his Official Capacity as Acting Director United States Marshal's Service TERMINATED: 12/11/2006
Defendant GEORGE B. WALSH In his Official Capacity as the United States Marshal for the District of Columbia TERMINATED: 10/28/2005
Defendant TODD WALTHER DILLARD In his Official Capacity (Former United States Marshal for the District of Columbia)
Defendant JOHN DOES 1 to 15
Defendant STEVE CONBOY In his official capacity as the United States Marshal for the Superior Court of the District of Columbia TERMINATED: 12/11/2006

represented by William Mark Nebeker U.S. ATTORNEY'S OFFICE Civil Division 555 4th Street, NW Washington, DC 20530 (202) 514−7230 Fax: (202) 514−8780 Email: mark.nebeker@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by William Mark Nebeker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by William Mark Nebeker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 09/15/2005
09/15/2005

# Docket Text
1 COMPLAINT against JOHN F. CLARK, GEORGE B. WALSH, TODD WALTHER DILLARD, JOHN DOES (Filing fee $ 250) filed by PAUL BAME, GREGORY KELTNER, IVAN WELANDER.(td, ) (Entered: 09/16/2005)
2 NOTICE OF RELATED CASE by PAUL BAME, GREGORY KELTNER, IVAN WELANDER. Case related to Case No. 02−2010. (td, ) (Entered: 09/16/2005)

Case: 1:05­cv­1833 As of: 10/16/2012 03:29 AM EDT 3 of 13

09/16/2005 10/03/2005 10/13/2005 10/13/2005 10/13/2005 10/28/2005 10/28/2005
11/02/2005 11/10/2005 11/15/2005 11/28/2005
11/29/2005 11/30/2005 11/30/2005 12/12/2005
12/14/2005 12/14/2005 01/18/2006

SUMMONS (5) Issued as to JOHN F. CLARK, GEORGE B. WALSH, TODD WALTHER DILLARD, U.S. Attorney and U.S. Attorney General (td, ) (Entered: 09/16/2005)
3 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. TODD WALTHER DILLARD served on 9/24/2005, answer due 10/14/2005 (nmw, ) (Entered: 10/04/2005)
4 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the US Attorney served on 9/30/2005, answer due 11/29/2005(td, ) (Entered: 10/24/2005)
5 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to GEORGE B. WALSH served on 10/5/2005, answer due 12/5/2005. (td, ) (Entered: 10/24/2005)
6 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on Attorney General. Date of Service Upon Attorney General 9/30/05. (td, ) (Entered: 10/24/2005)
7 ENTERED IN ERROR. . . .NOTICE filing of First Amended Complaint by PAUL BAME, GREGORY KELTNER, IVAN WELANDER (Cunningham, Lynn) Modified on 10/31/2005 (td, ). (Entered: 10/28/2005)
8 AMENDED COMPLAINT against JOHN F. CLARK, STEVE CONBOY, GEORGE B. WALSH, TODD WALTHER DILLARD, JOHN DOESfiled by PAUL BAME,GREGORY KELTNER, IVAN WELANDER.(td, ) Modified on 10/31/2005 (td, ). (Entered: 10/31/2005)
9 NOTICE of Voluntary Dismissal re George B.Walsh (Cunningham, Lynn) (Entered: 11/02/2005)
Summons (1) Issued as to STEVE CONBOY. (lc, ) (Entered: 11/10/2005)
10 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to JOHN F. CLARK served on 11/8/2005, answer due 1/9/2006. (nmw, ) (Entered: 11/15/2005)
11 Unopposed MOTION for Extension of Time to File Answer re 8 Amended Complaint, 2 Notice of Related Case, MOTION for Extension of Time to File Response/Reply by JOHN F. CLARK, TODD WALTHER DILLARD, STEVE CONBOY. (Attachments: # 1 Text of Proposed Order)(Nebeker, William) (Entered: 11/28/2005)
12 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to STEVE CONBOY served on 11/17/2005, answer due 1/17/2006. (nmw, ) (Entered: 11/30/2005)
ORDER granting 11 Motion for Extension of Time. Answers due 1/19/2006. Signed by Judge Emmet G. Sullivan on November 30, 2005. (lcegs1) (Entered: 11/30/2005)
Set/Reset Deadlines: Answer due by 1/19/2006. (clv, ) (Entered: 11/30/2005)
13 Unopposed MOTION for Extension of Time to file motion for class certification by PAUL BAME. (Attachments: # 1 Text of Proposed Order Proposed Order for extension of time within which to file motion for class certification)(Cunningham, Lynn) (Entered: 12/12/2005)
MINUTE ORDER granting 13 Motion for Extension of Time. The deadline for plaintiffs to file a Motion for Class Certification is January 31, 2006. Signed by Judge Emmet G. Sullivan on December 14, 2005. (lcegs1) (Entered: 12/14/2005)
Set/Reset Deadlines: Motions due by 1/31/2006. (zclv, ) (Entered: 12/14/2005)
14 Unopposed MOTION for Extension of Time to File Response/Reply as to 8 Amended Complaint, 2 Notice of Related Case, MOTION for Extension of Time to File Answer by JOHN F. CLARK, TODD WALTHER DILLARD, STEVE CONBOY. (Attachments: # 1 Text of Proposed Order)(Nebeker, William) (Entered: 01/18/2006)

Case: 1:05­cv­1833 As of: 10/16/2012 03:29 AM EDT 4 of 13

01/20/2006
01/20/2006 01/27/2006 01/30/2006 01/31/2006 02/02/2006
02/02/2006 02/07/2006 02/08/2006
02/21/2006
03/01/2006
03/09/2006
03/10/2006
03/15/2006 03/20/2006
03/30/2006

MINUTE ORDER granting 14 Motion for Extension of Time. Defendants' response to the amended complaint and to plaintiff's notice of related cases is due February 6, 2006. Signed by Judge Emmet G. Sullivan on January 20, 2006. (lcegs1) (Entered: 01/20/2006)
Set/Reset Deadlines: Responses due by 2/6/2006 (clv, ) (Entered: 01/20/2006)
15 Unopposed MOTION for Extension of Time to File Motion for Class Certification by PAUL BAME, GREGORY KELTNER, IVAN WELANDER. (Attachments: # 1)(Cunningham, Lynn) (Entered: 01/27/2006)
MINUTE ORDER granting 15 Motion for Extension of Time. Plaintiffs' Motion for Class Certification is due February 8, 2006. Signed by Judge Emmet G. Sullivan on January 30, 2006. (lcegs1) (Entered: 01/30/2006)
Set/Reset Deadlines: Motions due by 2/8/2006. (clv, ) (Entered: 01/31/2006)
16 ANSWER to Amended Complaint by JOHN F. CLARK, TODD WALTHER DILLARD, STEVE CONBOY. Related document: 8 Amended Complaint filed by PAUL BAME,, GREGORY KELTNER,, IVAN WELANDER,.(Nebeker, William) (Entered: 02/02/2006)
17 NOTICE OF RELATED CASE by JOHN F. CLARK, TODD WALTHER DILLARD, STEVE CONBOY. Case related to Case No. 02−2364. (Nebeker, William) (Entered: 02/02/2006)
Case Reassigned to Judge Rosemary M. Collyer. Judge Emmet G. Sullivan no longer assigned to the case. (td, ) (Entered: 02/08/2006)
18 MOTION to Certify Class by PAUL BAME, GREGORY KELTNER, IVAN WELANDER. (Attachments: # 1 Exhibit Exhibit 1 Log Out Sheets# 2 Text of Proposed Order # 3 Exhibit Ex 2 Cunningham AFF# 4 Exhibit Ex 3 Cunningham Resume# 5 Exhibit Ex 4 Wolfe Aff# 6 Exhibit Ex 5 Wolfe Resume)(Cunningham, Lynn) (Entered: 02/08/2006)
19 Unopposed MOTION for Extension of Time to File Response/Reply as to 18 MOTION to Certify Class by JOHN F. CLARK, TODD WALTHER DILLARD, STEVE CONBOY. (Attachments: # 1 Text of Proposed Order)(Nebeker, William) (Entered: 02/21/2006)
MINUTE ENTRY ORDER granting 19 Defendants' Unopposed MOTION for Extension of Time to File Response/Reply as to 18 MOTION to Certify Class. Defendants' response is due by no later than March 13, 2006. Signed by Judge Rosemary M. Collyer on 3/1/06. (dyc) (Entered: 03/01/2006)
20 Unopposed MOTION for Extension of Time to File Report under Local Rule 16(b) by PAUL BAME, GREGORY KELTNER, IVAN WELANDER. (Attachments: # 1 Text of Proposed Order Proposed Order)(Cunningham, Lynn) (Entered: 03/09/2006)
21 Unopposed MOTION for Extension of Time to File Response/Reply as to 18 MOTION to Certify Class by JOHN F. CLARK, TODD WALTHER DILLARD, STEVE CONBOY. (Attachments: # 1 Text of Proposed Order)(Nebeker, William) (Entered: 03/10/2006)
22 MEET AND CONFER STATEMENT. (Cunningham, Lynn) (Entered: 03/15/2006)
23 Unopposed MOTION for Extension of Time to File Response/Reply as to 18 MOTION to Certify Class by JOHN F. CLARK, TODD WALTHER DILLARD, STEVE CONBOY. (Attachments: # 1 Text of Proposed Order)(Nebeker, William) (Entered: 03/20/2006)
24 Unopposed MOTION for Extension of Time to File Response/Reply as to 18 MOTION to Certify Class by JOHN F. CLARK, TODD WALTHER DILLARD, STEVE CONBOY. (Attachments: # 1 Text of Proposed Order)(Nebeker, William) (Entered: 03/30/2006)

Case: 1:05­cv­1833 As of: 10/16/2012 03:29 AM EDT 5 of 13

04/03/2006 04/03/2006
04/03/2006 04/04/2006 04/04/2006 04/05/2006 04/07/2006 04/17/2006 04/17/2006 04/19/2006 04/19/2006 04/19/2006 04/21/2006
04/27/2006

MINUTE ENTRY ORDER granting 20 Consent Motion for Extension of Time to File Report under Local Rule 16(b) nunc pro tunc to March 15, 2006. Signed by Judge Rosemary M. Collyer on 4/3/06. (tkf) (Entered: 04/03/2006)
MINUTE ENTRY ORDER finding as moot 21 Defendants' Motion for Extension of Time to File Response/Reply, finding as moot 23 Defendants' Motion for Extension of Time to File Response/Reply, granting 24 Defendants' Unopposed Motion for Extension of Time to File Response/Reply. Defendants' Opposition to Plaintiffs' Motion for Class Certification shall be due by no later than April 3, 2006. Defendants' dispositive motion shall be due by no later than April 17, 2006. Signed by Judge Rosemary M. Collyer on 4/3/06. (tkf) (Entered: 04/03/2006)
Set/Reset Deadlines: Defendant's Dispositive Motions due by 4/17/2006. (cdw) (Entered: 04/06/2006)
25 Unopposed MOTION for Leave to File Opposition To Plaintiffs' Motion For Class Certification by JOHN F. CLARK, TODD WALTHER DILLARD, STEVE CONBOY. (Attachments: # 1 Text of Proposed Order # 2 Exhibit opposition# 3 Exhibit proposed order for opposition)(Nebeker, William) (Entered: 04/04/2006)
MINUTE ENTRY ORDER granting 25 Defendants' Unopposed Motion for Leave to File. Signed by Judge Rosemary M. Collyer on 4−4−2006. (tkf) (Entered: 04/04/2006)
26 NOTICE Of Filing by JOHN F. CLARK, TODD WALTHER DILLARD, STEVE CONBOY re 18 MOTION to Certify Class (Attachments: # 1 Exhibit A (pages 1−44)# 2 Exhibit A (pages 45−88)# 3 Exhibit B)(Nebeker, William) (Entered: 04/05/2006)
27 Unopposed MOTION for Extension of Time to File Response/Reply in support of motion for class certification by PAUL BAME, GREGORY KELTNER, IVAN WELANDER. (Attachments: # 1 Text of Proposed Order)(Cunningham, Lynn) (Entered: 04/07/2006)
28 MOTION for Extension of Time to File Dispositive Motion by JOHN F. CLARK, TODD WALTHER DILLARD, STEVE CONBOY. (Nebeker, William) (Entered: 04/17/2006)
29 NOTICE Of Filing by JOHN F. CLARK, TODD WALTHER DILLARD, STEVE CONBOY re 26 Notice (Other) (Attachments: # 1 Affidavit Declaration of William Bordley)(Nebeker, William) (Entered: 04/17/2006)
MINUTE ENTRY ORDER granting 27 Motion for Extension of Time to File Response/Reply. Plaintiffs' reply is due no later than April 21, 2006. Signed by Judge Rosemary M. Collyer on 4/19/2006. (tkf) (Entered: 04/19/2006)
MINUTE ENTRY ORDER granting 28 Motion for Extension of Time to File. Defendants must file dispositive motion no later than April 19, 2006. Signed by Judge Rosemary M. Collyer on 4/19/2006. (tkf) (Entered: 04/19/2006)
30 MOTION to Dismiss Or, In The Alternative, MOTION for Summary Judgment by JOHN F. CLARK, TODD WALTHER DILLARD, STEVE CONBOY. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Text of Proposed Order)(Nebeker, William) (Entered: 04/19/2006)
31 REPLY to opposition to motion re 18 MOTION to Certify Class filed by PAUL BAME, GREGORY KELTNER, IVAN WELANDER. (Attachments: # 1 Affidavit Declaration of Paul Bame Ex 6# 2 Declaration of Welander p1 Ex 7# 3 Exhibit Johnson v DC consent motion Ex 8# 4 Exhibit Barham v Ramsey Complaint Ex 9# 5 Exhibit Bame Notice to Return to Ct. Ex 10# 6 Exhibit Morgan v Barry Decree Ex 11)(Cunningham, Lynn) (Entered: 04/21/2006)
32 Unopposed MOTION for Extension of Time to File Response/Reply as to 30 MOTION to Dismiss Or, In The Alternative MOTION for Summary Judgment by PAUL BAME, GREGORY KELTNER, IVAN WELANDER. (Attachments: # 1 Text of Proposed Order)(Cunningham, Lynn) (Entered: 04/27/2006)

Case: 1:05­cv­1833 As of: 10/16/2012 03:29 AM EDT 6 of 13

04/28/2006 04/28/2006 05/16/2006 05/19/2006 06/02/2006 06/02/2006 06/02/2006 06/15/2006 06/16/2006 06/26/2006 06/27/2006 07/18/2006 07/19/2006 07/21/2006

MINUTE ENTRY ORDER granting 32 Unopposed Motion for Extension of Time to File Response/Reply to Motion to Dismiss. Plaintiffs' response is due no later than May 19, 2006. Signed by Judge Rosemary M. Collyer on 4/28/2006. (tkf) (Entered: 04/28/2006)
Set Deadlines/Hearings: Plaintiff's response to 30 due by 5/19/2006. (cdw) (Entered: 05/02/2006)
33 Unopposed MOTION for Extension of Time to File Opposition to Defendants' Motion to Dismiss 30 by PAUL BAME, GREGORY KELTNER, IVAN WELANDER. (Attachments: # 1 Text of Proposed Order)(Cunningham, Lynn) (Entered: 05/16/2006)
MINUTE ENTRY ORDER granting 33 Motion for Extension of Time. Plaintiffs' Response to Defendants' Motion to Dismiss shall be filed no later than June 2, 2006. Defendants' Reply to Plaintiffs' Response shall be filed no later than June 26, 2006. Signed by Judge Rosemary M. Collyer on 5/19/2006. (tkf) (Entered: 05/19/2006)
34 Memorandum in opposition to re 30 MOTION to Dismiss Or, In The Alternative MOTION for Summary Judgment filed by PAUL BAME, GREGORY KELTNER, IVAN WELANDER. (Attachments: # 1 Text of Proposed Order # 2 Exhibit Exhibit 12# 3 Exhibit Exhibit 13)(Cunningham, Lynn) (Entered: 06/02/2006)
35 MOTION for Discovery pursuant to FRCivP Rule 56(f) by PAUL BAME, GREGORY KELTNER, IVAN WELANDER. (Attachments: # 1 Text of Proposed Order # 2 Affidavit Affirmation of counsel in support of motion# 3 Exhibit Exhibit of proposed discovery requests)(Cunningham, Lynn) (Entered: 06/02/2006)
36 MOTION to Stay Consideration of Defendants' Motion to Dismiss by PAUL BAME, GREGORY KELTNER, IVAN WELANDER. (See docket number 35 for scanned document). (tg, ) (Entered: 06/05/2006)
37 Unopposed MOTION for Extension of Time to File Response/Reply as to 35 MOTION for Discovery pursuant to FRCivP Rule 56(f), 36 MOTION to Stay by JOHN F. CLARK, TODD WALTHER DILLARD, STEVE CONBOY. (Attachments: # 1 Statement of Facts)(Nebeker, William) (Entered: 06/15/2006)
MINUTE ENTRY ORDER granting 37 Consent Motion for Extension of Time to File Response/Reply. Defendants' response shall be filed no later than June 29, 2006. Signed by Judge Rosemary M. Collyer on 06/16/2006. (tkf) (Entered: 06/16/2006)
38 Unopposed MOTION for Extension of Time to File Response/Reply as to 30 MOTION to Dismiss Or, In The Alternative MOTION for Summary Judgment, 35 MOTION for Discovery pursuant to FRCivP Rule 56(f), 36 MOTION to Stay by JOHN F. CLARK, TODD WALTHER DILLARD, STEVE CONBOY. (Nebeker, William) (Entered: 06/26/2006)
ORDER granting 38 Defendants' Motion for Extension of Time to File Response/Reply to 30 Defendants' Motion to Dismiss, 36 Plaintiffs' Motion to Stay, and 35 Plaintiffs' Motion for Discovery Pursuant to Rule 56(f). Responses/Replies shall be filed no later than July 17, 2006. Signed by Judge Rosemary M. Collyer on 6/27/2006. (tkf) (Entered: 06/27/2006)
39 Unopposed MOTION for Extension of Time to File Response/Reply as to 30 MOTION to Dismiss Or, In The Alternative MOTION for Summary Judgment, 35 MOTION for Discovery pursuant to FRCivP Rule 56(f), 36 MOTION to Stay by JOHN F. CLARK, TODD WALTHER DILLARD, STEVE CONBOY. (Nebeker, William) (Entered: 07/18/2006)
MINUTE ENTRY ORDER granting 39 Defendants' Unopposed Motion for Extension of Time to File Response/Reply. Defendants' reply shall be filed no later than July 21, 2006. Signed by Judge Rosemary M. Collyer on 7/19/2006. (tkf) (Entered: 07/19/2006)
40 Memorandum in opposition to re 35 MOTION for Discovery pursuant to FRCivP Rule 56(f), 36 MOTION to Stay And Reply To Plaintiff's Opposition To

Case: 1:05­cv­1833 As of: 10/16/2012 03:29 AM EDT 7 of 13

07/21/2006
07/25/2006 07/26/2006 08/04/2006 12/11/2006 12/11/2006 01/09/2007 01/10/2007 01/17/2007 06/11/2007 07/10/2007 07/12/2007
07/12/2007 07/12/2007 07/24/2007

Defendants' Motion To Dismiss Or, In The Alternative, For Summary Judgment filed by JOHN F. CLARK, TODD WALTHER DILLARD, STEVE CONBOY. (Nebeker, William) (Entered: 07/21/2006)
41 REPLY to opposition to motion re 30 MOTION to Dismiss Or, In The Alternative MOTION for Summary Judgment And Reply To Plaintiff's Opposition To Defendants' Motion To Dismiss Or, In The Alternative, For Summary Judgment filed by JOHN F. CLARK, TODD WALTHER DILLARD, STEVE CONBOY. (Nebeker, William) (Entered: 07/21/2006)
42 Unopposed MOTION for Extension of Time to file reply brief by PAUL BAME, GREGORY KELTNER, IVAN WELANDER. (Attachments: # 1 Text of Proposed Order)(Cunningham, Lynn) (Entered: 07/25/2006)
MINUTE ENTRY ORDER granting 42 Plaintiffs' Unopposed Motion for Extension of Time to File a Reply. Plaintiffs' reply shall be filed by no later than August 4, 2006. Signed by Judge Rosemary M. Collyer on 7/26/2006. (tkf) (Entered: 07/26/2006)
43 REPLY to opposition to motion re 35 MOTION for Discovery pursuant to FRCivP Rule 56(f), 36 MOTION to Stay filed by PAUL BAME, GREGORY KELTNER, IVAN WELANDER. (Cunningham, Lynn) (Entered: 08/04/2006)
44 MEMORANDUM OPINION. Signed by Judge Rosemary M. Collyer on 12/11/2006. (ses) (Entered: 12/11/2006)
45 ORDER granting in part and denying in part 30 Defendants' Motion to Dismiss, or in the Alternative, for Summary Judgment; and denying 35 Plaintiffs' Motion for Discovery and 36 Plaintiffs' Motion to Stay. Signed by Judge Rosemary M. Collyer on 12/11/2006. (ses) (Entered: 12/11/2006)
46 NOTICE OF APPEAL as to 45 Order on Motion to Dismiss,, Order on Motion for Summary Judgment,, Order on Motion for Discovery,, Order on Motion to Stay,, 44 Memorandum &Opinion by TODD WALTHER DILLARD. Fee Status: No Fee Paid. Parties have been notified. (Nebeker, William) (Entered: 01/09/2007)
Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 46 Notice of Appeal, (tg, ) (Entered: 01/10/2007)
USCA Case Number 07−5007 for 46 Notice of Appeal, filed by TODD WALTHER DILLARD. (tg, ) (Entered: 01/18/2007)
47 ORDER of USCA (certified copy) granting appellant's motion to dismiss appeal 46 , and this case is hereby dismissed as to TODD W. DILLARD. (erd) (Entered: 06/15/2007)
NOTICE of Hearing: A Status Conference is set for 7/12/2007 at 11:15 AM in Courtroom 2, main building, 2nd floor, before Judge Rosemary M. Collyer. (cdw) (Entered: 07/10/2007)
MINUTE ENTRY ORDER. Pursuant to the Court's instructions at the status conference held in open court today, July 12, 2007, it is hereby ordered that the parties shall file an updated Rule 16.3 Report and proposed scheduling order no later than July 24, 2007. A further status conference is set for August 3, 2007, at 2:30 p.m. Signed by Judge Rosemary M. Collyer on 7/12/2007. (lcrmc2) (Entered: 07/12/2007)
Minute Entry for proceedings held before Judge Rosemary M. Collyer: Status Conference held on 7/12/2007. (Court Reporter: Crystal Pilgrim) (cdw) (Entered: 07/12/2007)
Set Deadlines/Hearings: 16.3 Report due by 7/24/2007. Status Conference set for 8/3/2007 02:30 AM in Courtroom 2 before Judge Rosemary M. Collyer. (cdw) (Entered: 07/13/2007)
48 MEET AND CONFER STATEMENT. (Cunningham, Lynn) (Entered: 07/24/2007)

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07/25/2007 08/03/2007 08/06/2007 08/06/2007 09/20/2007 10/04/2007 10/05/2007
10/09/2007 01/22/2008 01/29/2008 01/29/2008 02/05/2008
02/06/2008 03/27/2008
03/27/2008 03/27/2008

49 ERRATA Proposed Scheduling Order by PAUL BAME, GREGORY KELTNER, IVAN WELANDER 48 Meet and Confer Statement. (Attachments: # 1 Errata Scheduling Order to accompany Parties' Meet and Confer Report 48 )(Cunningham, Lynn) (Entered: 07/25/2007)
Minute Entry for proceedings held before Judge Rosemary M. Collyer: Status Conference held on 8/3/2007. (Court Reporter: Wendy Ricard) (cdw) (Entered: 08/06/2007)
50 SCHEDULING ORDER. See attached Order for further details. Signed by Judge Rosemary M. Collyer on 8/6/2007. (lcrmc2) (Entered: 08/06/2007)
Set Deadlines/Hearings: Discovery closes 1/31/2008. Dispositive Motions due by 3/31/2008. Status Conference set for 2/7/2008 04:30 PM in Courtroom 2 before Judge Rosemary M. Collyer. (cdw) (Entered: 08/07/2007)
51 MOTION to Amend/Correct First Amended Complaint by PAUL BAME, GREGORY KELTNER, IVAN WELANDER (Attachments: # 1 Exhibit)(Cunningham, Lynn) (Entered: 09/20/2007)
52 Memorandum in opposition to re 51 MOTION to Amend/Correct First Amended Complaint filed by JOHN F. CLARK, TODD WALTHER DILLARD, STEVE CONBOY. (Attachments: # 1 Text of Proposed Order)(Nebeker, William) (Entered: 10/04/2007)
53 ERRATA by JOHN F. CLARK, TODD WALTHER DILLARD, STEVE CONBOY 51 MOTION to Amend/Correct First Amended Complaint filed by PAUL BAME, GREGORY KELTNER, IVAN WELANDER. (Attachments: # 1 Exhibit Memorandum Of Points And Authorities In Opposition To Plaintiffs' Motion To Amend Complaint To Add Parties)(Nebeker, William) (Entered: 10/05/2007)
54 REPLY to opposition to motion re 51 MOTION to Amend/Correct First Amended Complaint filed by PAUL BAME, GREGORY KELTNER, IVAN WELANDER. (Cunningham, Lynn) (Entered: 10/09/2007)
55 Consent MOTION for Extension of Time to Complete Discovery by PAUL BAME, GREGORY KELTNER, IVAN WELANDER (Attachments: # 1 Text of Proposed Order)(Cunningham, Lynn) (Entered: 01/22/2008)
MINUTE ENTRY ORDER granting 55 Consent Motion for Extension of Time to Complete Discovery. The deadline for parties to complete discovery on the liability issues is hereby extended to March 31, 2008. Signed by Judge Rosemary M. Collyer on 1/29/08. (lcrmc2) (Entered: 01/29/2008)
Set Deadlines/Hearings: Discovery closes 3/31/2008. (cdw) (Entered: 01/30/2008)
MINUTE ENTRY ORDER vacating the February 7, 2008 post−discovery status conference in light of the Court's January 29, 2008 Minute Entry Order extending discovery. The Deputy Clerk of this Court will reschedule the status conference for a date after March 31, 2008. Signed by Judge Rosemary M. Collyer on 2/5/08. (lcrmc2) (Entered: 02/05/2008)
NOTICE of Hearing: The Post−Discovery Status Conference is reset for 4/4/2008 at 10:30 AM in Courtroom 2 before Judge Rosemary M. Collyer. (cdw) (Entered: 02/06/2008)
MINUTE ENTRY ORDER. Pursuant to the telephone conference held on March 27, 2008, the deadline for parties to complete discovery on the liability issues is extended until June 30, 2008. The post−discovery status conference set for April 4, 2008 is VACATED and will be rescheduled by the Deputy Clerk of this Court. Signed by Judge Rosemary M. Collyer on 3/27/08. (lcrmc2) (Entered: 03/27/2008)
Minute Entry for proceedings held before Judge Rosemary M. Collyer: Telephone Conference held on 3/27/2008. (cdw) (Entered: 03/28/2008)
Set/Reset Deadlines/Hearings: Discovery closes 6/30/2008. (cdw) (Entered: 03/28/2008)

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03/28/2008 03/28/2008 04/03/2008
04/04/2008 04/08/2008 04/08/2008 04/11/2008 04/11/2008
04/11/2008
04/11/2008 04/21/2008
05/22/2008 05/22/2008 06/19/2008 06/24/2008
06/24/2008

56 ORDER granting in part and denying in part 51 Plaintiffs' Motion to Amend the Complaint. See attached Order for further details. Signed by Judge Rosemary M. Collyer on 3/28/08. (lcrmc2) (Entered: 03/28/2008)
57 Second AMENDED COMPLAINT against TODD WALTHER DILLARD, JOHN DOES filed by NICOLAS CHURCH, JOHN JOEL DUNCAN, PAUL BAME, GREGORY KELTNER, IVAN WELANDER.(tg, ) (Entered: 03/31/2008)
NOTICE of Hearing: A Telephone Conference is set for 4/4/2008 at 10:30 AM before Judge Rosemary M. Collyer. A Post−discovery Status Conference is set for 7/18/2008 at 11:15 AM in Courtroom 2 before Judge Rosemary M. Collyer. (cdw) (Entered: 04/03/2008)
Minute Entry for proceedings held before Judge Rosemary M. Collyer: Telephone Conference held on 4/4/2008. (cdw) (Entered: 04/07/2008)
58 SUPPLEMENTAL MEMORANDUM to re 18 MOTION to Certify Class, 30 MOTION to Dismiss Or, In The Alternative MOTION for Summary Judgment filed by TODD WALTHER DILLARD. (Nebeker, William) (Entered: 04/08/2008)
59 LARGE ADDITIONAL ATTACHMENT(S) by TODD WALTHER DILLARD 58 Supplemental Memorandum filed by TODD WALTHER DILLARD. (Nebeker, William) (Entered: 04/08/2008)
60 Consent MOTION for Extension of Time to File Response/Reply to defendant's memorandum in opposition to class certification by PAUL BAME, GREGORY KELTNER, IVAN WELANDER (Cunningham, Lynn) (Entered: 04/11/2008)
MINUTE ENTRY ORDER granting 60 Plaintiffs' Motion for Extension of Time. Plaintiffs shall file a response to Defendant's Supplemental Memorandum in Opposition to Plaintiffs' Motion for Class Certification 58 no later than April 21, 2008. Signed by Judge Rosemary M. Collyer on 4/11/08. (lcrmc2) (Entered: 04/11/2008)
61 ANSWER to 57 Amended Complaint by TODD WALTHER DILLARD. Related document: 57 Amended Complaint filed by JOHN JOEL DUNCAN, PAUL BAME, GREGORY KELTNER, IVAN WELANDER, NICOLAS CHURCH.(Nebeker, William) (Entered: 04/11/2008)
Set/Reset Deadlines/Hearings: Plaintiff's response to 58 due by 4/21/2008. (cdw) (Entered: 04/14/2008)
62 REPLY to opposition to motion re 18 MOTION to Certify Class filed by NICOLAS CHURCH, PAUL BAME, GREGORY KELTNER. (Attachments: # 1 Exhibit Defendant's Initial Disclosures, # 2 Exhibit Defendant's Responses to Plaintiffs' Interrogatories)(Cunningham, Lynn) (Entered: 04/21/2008)
63 MEMORANDUM OPINION. Signed by Judge Rosemary M. Collyer on 5/22/08. (lcrmc2) (Entered: 05/22/2008)
64 ORDER granting 18 Plaintiffs' Motion for Class Certification. See attached Order for further details. Signed by Judge Rosemary M. Collyer on 5/22/08. (lcrmc2) (Entered: 05/22/2008)
65 MOTION to Amend/Correct 61 Answer to Amended Complaint by TODD WALTHER DILLARD (Attachments: # 1 Exhibit Amended Answer, # 2 Text of Proposed Order)(Nebeker, William) (Entered: 06/19/2008)
66 Memorandum in opposition to re 65 MOTION to Amend/Correct 61 Answer to Amended Complaint filed by NICOLAS CHURCH, PAUL BAME, GREGORY KELTNER. (Attachments: # 1 Text of Proposed Order)(Cunningham, Lynn) (Entered: 06/24/2008)
67 ERRATA Attachment of Burgin/Diamond complaint by NICOLAS CHURCH, JOHN JOEL DUNCAN, PAUL BAME, GREGORY KELTNER, IVAN WELANDER 66 Memorandum in Opposition filed by PAUL BAME, GREGORY KELTNER, NICOLAS CHURCH. (Cunningham, Lynn) (Entered: 06/24/2008)

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06/30/2008
06/30/2008 07/08/2008
07/17/2008
07/17/2008 07/29/2008 08/12/2008
08/12/2008 08/12/2008 09/30/2008 10/01/2008 10/01/2008 10/06/2008

68 Joint MOTION for Extension of Time to Complete Discovery To Permit Certain Depositions After The Close Of The Discovery Period by TODD WALTHER DILLARD, JOHN DOES, NICOLAS CHURCH, JOHN JOEL DUNCAN, PAUL BAME, GREGORY KELTNER, IVAN WELANDER (Attachments: # 1 Text of Proposed Order)(Nebeker, William) (Entered: 06/30/2008)
69 REPLY to opposition to motion re 65 MOTION to Amend/Correct 61 Answer to Amended Complaint filed by TODD WALTHER DILLARD. (Nebeker, William) (Entered: 06/30/2008)
MINUTE ENTRY ORDER granting 68 the parties' Joint Motion. It is hereby ORDERED that the parties may issue subpoenas and/or deposition notices as necessary to ascertain the identities of men arrested by the Metropolitan Police Department during the September 2002 International Monetary Fund demonstration and the subsets of those individuals who were arrested at Pershing Park and who were class members in Diamond v. District of Columbia, Civil Action No. 03−2005 EGS (D.D.C.). Signed by Judge Rosemary M. Collyer on 7/8/08. (lcrmc2) (Entered: 07/08/2008)
MINUTE ENTRY ORDER granting 65 Defendant's Motion to Amend Answer pursuant to Federal Rule of Civil Procedure 15(a). It is further ordered that the amended answer to Plaintiffs' Second Amended Class Action Complaint for Compensatory and Punitive Damages be and is hereby accepted for filing. Signed by Judge Rosemary M. Collyer on 7/17/08. (lcrmc2) (Entered: 07/17/2008)
70 AMENDED ANSWER to Second Amended Complaint by TODD WALTHER DILLARD. Related document: 57 Second Amended Complaint filed by JOHN JOEL DUNCAN, PAUL BAME, GREGORY KELTNER, IVAN WELANDER, NICOLAS CHURCH.(tg, ) (Entered: 07/18/2008)
NOTICE of Hearing: A Post−discovery Status Conference is set for 8/12/2008 at 11:15 AM in Courtroom 2 before Judge Rosemary M. Collyer. (cdw) (Entered: 07/29/2008)
MINUTE ENTRY ORDER. Pursuant to the agreement of the parties at the status conference held on August 12, 2008, motions(s) for summary judgment shall be filed no later than October 1, 2008; oppositions shall be filed no later than December 10, 2008; and replies may be filed no later than January 12, 2009. Signed by Judge Rosemary M. Collyer on 8/12/08. (lcrmc2) (Entered: 08/12/2008)
Minute Entry for proceedings held before Judge Rosemary M. Collyer: Status Conference held on 8/12/2008. (Court Reporter: Crystal Pilgrim) (cdw) (Entered: 08/12/2008)
Set/Reset Deadlines/Hearings: Summary Judgment motions due by 10/1/2008. Responses to Motions for Summary Judgment due by 12/10/2008. Replies to Motions for Summary Judgment due by 1/12/2009. (cdw) (Entered: 08/13/2008)
71 Unopposed MOTION for Extension of Time to File Dispositive Motions by TODD WALTHER DILLARD (Attachments: # 1 Text of Proposed Order)(Nebeker, William) (Entered: 09/30/2008)
MINUTE ORDER granting 71 Defendants' Motion for Extension of Time. Dispositive motions shall be filed no later than October 8, 2008. Signed by Judge Rosemary M. Collyer on 10/01/08. (lcrmc2) (Entered: 10/01/2008)
Set/Reset Deadlines/Hearings: Dispositive Motions due by 10/8/2008. (cdw) (Entered: 10/02/2008)
72 MOTION for Summary Judgment on Liability by NICOLAS CHURCH, JOHN JOEL DUNCAN, PAUL BAME, GREGORY KELTNER, IVAN WELANDER (Attachments: # 1 Memorandum in Support Memorandum in Support of Summary Judgment, # 2 Text of Proposed Order MSJ proposed order, # 3 Statement of Facts Statement of Uncontested Facts, # 4 Exhibit List of Exhibits in Support of Motion for Summary Judgment, # 5 Exhibit Exhibit 1 Dillard Depo, # 6 Exhibit Ex 2 Rowe Deposition, # 7 Exhibit Ex 3 Bame Deposition, # 8 Exhibit Ex 4 Church Depo, # 9 Exhibit Ex 5 Duncan Depo, # 10 Exhibit Ex 6 Keltner Depo, # 11 Exhibit Ex 7 Welander Depo, # 12 Exhibit Ex 8 Pltfs' Responses Def's Interrogatories, # 13

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10/07/2008 10/08/2008 10/08/2008 10/09/2008 10/14/2008
12/10/2008
12/10/2008 12/10/2008
12/10/2008 12/15/2008 01/09/2009 01/09/2009 01/09/2009 01/27/2009

Exhibit Ex 9 Def's Responses to Pltfs' Interrogatories, # 14 Exhibit Ex 10 USMS Policy Directive 99−25, # 15 Exhibit Ex 11 IMF Protestor Lock Up List, # 16 Exhibit Ex 12 Morgan v Barry consent decree)(Cunningham, Lynn) (Entered: 10/06/2008)
73 Unopposed MOTION for Extension of Time to File Dispositive Motion by TODD WALTHER DILLARD (Attachments: # 1 Text of Proposed Order)(Nebeker, William) (Entered: 10/07/2008)
MINUTE ORDER granting 73 Defendants' Motion for Extension of Time. Dispositive motions shall be filed no later than October 9, 2008. Signed by Judge Rosemary M. Collyer on 10/08/08. (lcrmc2) (Entered: 10/08/2008)
Set/Reset Deadlines: Dispositive Motions due by 10/9/2008. (cdw) (Entered: 10/10/2008)
74 MOTION for Judgment on the Pleadings Or, In The Alternative, MOTION for Summary Judgment by TODD WALTHER DILLARD (Attachments: # 1 Text of Proposed Order)(Nebeker, William) (Entered: 10/09/2008)
75 NOTICE Of Filing by TODD WALTHER DILLARD re 74 MOTION for Judgment on the Pleadings Or, In The Alternative MOTION for Summary Judgment (Attachments: # 1 Exhibit A (King Decl.), # 2 Exhibit B (Dillard Decl.), # 3 Exhibit C (Anti−Capitalist Convergence), # 4 Exhibit D (Anti−Capitalist Convergence), # 5 Exhibit E (Operation Safe Courts), # 6 Exhibit F (Blackpowder−msg), # 7 Exhibit G (Operation Safe Courts))(Nebeker, William) (Entered: 10/14/2008)
76 Unopposed MOTION for Extension of Time to File Response/Reply as to 72 MOTION for Summary Judgment on Liability, 74 MOTION for Judgment on the Pleadings Or, In The Alternative MOTION for Summary Judgment by TODD WALTHER DILLARD (Attachments: # 1 Text of Proposed Order)(Nebeker, William) (Entered: 12/10/2008)
MINUTE ORDER granting 76 Defendants' motion for extension of time. Oppositions to the pending dispositive motions shall be filed no later than December 15, 2008. Signed by Judge Rosemary M. Collyer on 12/10/08. (lcrmc2) (Entered: 12/10/2008)
77 Memorandum in opposition to re 74 MOTION for Judgment on the Pleadings Or, In The Alternative MOTION for Summary Judgment filed by NICOLAS CHURCH, JOHN JOEL DUNCAN, PAUL BAME, GREGORY KELTNER, IVAN WELANDER. (Attachments: # 1 Exhibit, # 2 Text of Proposed Order)(Cunningham, Lynn) (Entered: 12/10/2008)
Set/Reset Deadlines/Hearings: Response to Dispositive Motions due by 12/15/2008. (cdw) (Entered: 12/11/2008)
78 Memorandum in opposition to re 72 MOTION for Summary Judgment on Liability filed by TODD WALTHER DILLARD. (Attachments: # 1 Affidavit Foley Declaration, # 2 Text of Proposed Order)(Nebeker, William) (Entered: 12/15/2008)
79 Consent MOTION to Continue by NICOLAS CHURCH, JOHN JOEL DUNCAN, PAUL BAME, GREGORY KELTNER, IVAN WELANDER (Attachments: # 1 Text of Proposed Order)(Cunningham, Lynn) (Entered: 01/09/2009)
MINUTE ORDER granting 79 Plaintiffs' Motion to Continue. Plaintiffs and Defendants shall file their reply briefs no later than January 27, 2009. Signed by Judge Rosemary M. Collyer on 1/9/09. (lcrmc2) (Entered: 01/09/2009)
Set/Reset Deadlines/Hearings: Defendant's Reply due by 1/27/2009. (cdw) (Entered: 01/12/2009)
80 REPLY to opposition to motion re 74 MOTION for Judgment on the Pleadings Or, In The Alternative MOTION for Summary Judgment filed by TODD WALTHER DILLARD. (Nebeker, William) (Entered: 01/27/2009)

Case: 1:05­cv­1833 As of: 10/16/2012 03:29 AM EDT 12 of 13

01/27/2009 02/03/2009 02/06/2009
02/09/2009 02/09/2009
02/17/2009 02/23/2009 03/26/2009 04/17/2009 05/07/2009 06/25/2009
06/25/2009 06/25/2009 07/24/2009 07/24/2009 07/27/2009

81 REPLY to opposition to motion re 72 MOTION for Summary Judgment on Liability filed by NICOLAS CHURCH, JOHN JOEL DUNCAN, PAUL BAME, GREGORY KELTNER, IVAN WELANDER. (Attachments: # 1 Statement of Facts Plaintiff Responses to SOF)(Cunningham, Lynn) (Entered: 01/27/2009)
82 MOTION for Leave to File Sur−Reply by TODD WALTHER DILLARD (Attachments: # 1 Text of Proposed Order)(Nebeker, William) (Entered: 02/03/2009)
83 ENTERED IN ERROR.....Memorandum in opposition to re 82 MOTION for Leave to File Sur−Reply filed by NICOLAS CHURCH, JOHN JOEL DUNCAN, PAUL BAME, GREGORY KELTNER, IVAN WELANDER. (Attachments: # 1 Text of Proposed Order Page one of proposed order, # 2 Text of Proposed Order Page two of proposed order)(Cunningham, Lynn) Modified on 2/9/2009 (tg, ). (Entered: 02/06/2009)
NOTICE OF CORRECTED DOCKET ENTRY: re 83 Memorandum in Opposition, was entered in error and counsel was instructed to refile said pleading listing the complete caption of the case. (tg, ) (Entered: 02/09/2009)
84 Memorandum in opposition to re 82 MOTION for Leave to File Sur−Reply As Amended filed by NICOLAS CHURCH, JOHN JOEL DUNCAN, PAUL BAME, GREGORY KELTNER, IVAN WELANDER. (Attachments: # 1 Text of Proposed Order First page, # 2 Text of Proposed Order Second page)(Cunningham, Lynn) (Entered: 02/09/2009)
85 REPLY to opposition to motion re 72 MOTION for Summary Judgment on Liability, 82 MOTION for Leave to File Sur−Reply And Proposed Sur−Reply filed by TODD WALTHER DILLARD. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Nebeker, William) (Entered: 02/17/2009)
MINUTE ORDER granting 82 Defendants' Motion for Leave to File Sur−Reply. Signed by Judge Rosemary M. Collyer on 2/23/09. (lcrmc2) (Entered: 02/23/2009)
86 NOTICE OF SUPPLEMENTAL AUTHORITY by TODD WALTHER DILLARD (Nebeker, William) (Entered: 03/26/2009)
NOTICE of Hearing: A Motion Hearing re the Cross Motions for Summary Judgment is set for 5/7/2009 at 2:15 PM in Courtroom 2 before Judge Rosemary M. Collyer. (cdw) (Entered: 04/17/2009)
Minute Entry for proceedings held before Judge Rosemary M. Collyer: Motion Hearing held on 5/7/2009 re 72 , 74 Motions for Summary Judgment. Motions heard and taken under asvisement. (Court Reporter: Crystal Pilgrim) (cdw) (Entered: 05/08/2009)
87 ORDER. On or before July 24, 2009, the parties shall each file a supplemental brief, no more than ten pages in length, limited only to how the Supreme Court's decision in Safford Unified School District # 1 v. Redding affects the pending cross motions for summary judgment in this case, if at all. Signed by Judge Rosemary M. Collyer on 6/25/09. (lcrmc2) (Entered: 06/25/2009)
ENTERED IN ERROR........Set/Reset Deadlines: Supplemental Brief due by 6/25/2009. (cdw) Modified on 6/29/2009 (cdw, ). (Entered: 06/29/2009)
Set/Reset Deadlines: Supplemental Brief due by 7/24/2009. (cdw) (Entered: 06/29/2009)
88 ENTERED IN ERROR.....RESPONSE TO ORDER OF THE COURT re 87 Order, filed by TODD WALTHER DILLARD. (Meriweather, Robin) Modified on 7/27/2009 (rdj). (Entered: 07/24/2009)
89 RESPONSE TO ORDER OF THE COURT re 87 Order, filed by NICOLAS CHURCH, JOHN JOEL DUNCAN, PAUL BAME, GREGORY KELTNER, IVAN WELANDER. (Attachments: # 1 Exhibit Powell v Barrett en banc remand order)(Cunningham, Lynn) (Entered: 07/24/2009)
NOTICE OF CORRECTED DOCKET ENTRY: re 88 Response to Order of the Court was entered in error and counsel is instructed to refile said pleading using

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07/27/2009 08/25/2009 08/25/2009 09/24/2009 09/25/2009 09/29/2009 10/28/2009
07/13/2011 12/28/2011 01/17/2012 07/11/2012

their assigned password/login. ( Refer to LCvR 5.4(b) ) (rdj) (Entered: 07/27/2009)
90 RESPONSE TO ORDER OF THE COURT re 87 Order, filed by TODD WALTHER DILLARD. (Nebeker, William) (Entered: 07/27/2009)
91 MEMORANDUM OPINION. Signed by Judge Rosemary M. Collyer on 8/25/09. (lcrmc2) (Entered: 08/25/2009)
92 ORDER denying 72 Plaintiffs' Motion for Summary Judgment; denying 74 Defendant's Motion for Judgment on the Pleadings; denying 74 Defendant's Motion for Summary Judgment. Signed by Judge Rosemary M. Collyer on 8/25/09. (lcrmc2) (Entered: 08/25/2009)
93 NOTICE OF APPEAL as to 92 Order on Motion for Summary Judgment, Order on Motion for Judgment on the Pleadings, by TODD WALTHER DILLARD. Fee Status: No Fee Paid. Parties have been notified. (Nebeker, William) (Entered: 09/24/2009)
Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 93 Notice of Appeal (rdj) (Entered: 09/25/2009)
USCA Case Number 09−5330 for 93 Notice of Appeal filed by TODD WALTHER DILLARD. (rdj) (Entered: 09/29/2009)
94 TRANSCRIPT OF PROCEEDINGS before Judge Rosemary M. Collyer held on May 7, 2009; Page Numbers: 1−72. Date of Issuance:7/7/09. Court Reporter/Transcriber Crystal M. Pilgrim, Telephone number Crystal Pilgrim, Court Reporter Email Address : crystal_pilgrim@dcd.uscourts.gov.
For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.
NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at ww.dcd.uscourts.gov.
Redaction Request due 11/18/2009. Redacted Transcript Deadline set for 11/30/2009. Release of Transcript Restriction set for 1/26/2010.(Pilgrim, Crystal) (Entered: 10/28/2009)
95 MANDATE of USCA (certified copy) as to 93 Notice of Appeal filed by TODD WALTHER DILLARD ; ORDERED and ADJUDGED that the judgment of the District Court appealed from in this cause is hereby reversed and the case is remanded. USCA Case Number 09−5330. (mmh) (Entered: 07/13/2011)
96 ORDER granting summary judgment in favor of Defendant pursuant to judgment of the Circuit. Signed by Judge Rosemary M. Collyer on 12/28/2011. (KD) (Entered: 12/28/2011)
97 BILL OF COSTS by JOHN F. CLARK, STEVE CONBOY, TODD WALTHER DILLARD, GEORGE B. WALSH. (Nebeker, William) (Entered: 01/17/2012)
98 BILL OF COSTS AS TAXED by the Clerk in favor of defendants in the amount of $2,369.40 against plaintiffs (gt, ) (Entered: 07/11/2012)

 
 United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 14, 2010

Decided March 25, 2011

No. 09-5330

PAUL BAME, ET AL., APPELLEES

v.

TODD W. DILLARD, IN HIS OFFICIAL CAPACITY (FORMER UNITED STATES MARSHAL FOR THE DISTRICT OF COLUMBIA),
APPELLANT

Appeal from the United States District Court for the District of Columbia (No. 1:05-cv-01833-RMC)

W. Mark Nebeker, Assistant U.S. Attorney, argued the cause for appellant. With him on the briefs were Ronald C. Machen Jr., U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.
Lynn E. Cunningham argued the cause for appellees. With him on the brief was Zachary Wolfe.
Before: GINSBURG and ROGERS, Circuit Judges, and WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge GINSBURG.

2
Dissenting opinion filed by Circuit Judge ROGERS.
GINSBURG, Circuit Judge: The named plaintiffs filed this class action suit for damages against Todd Walther Dillard, a former United States Marshal for the Superior Court of the District of Columbia, claiming that, after being arrested during a demonstration in September 2002, they were unconstitutionally strip searched by Deputy U.S. Marshals under Dillard’s direction. According to the plaintiffs, caselaw had by then clearly established that the Fourth Amendment to the Constitution of the United States prohibited strip searching a person arrested for a non-violent, non-drugrelated misdemeanor absent a particularized reason to suspect the arrestee was concealing contraband or weapons about his person. Dillard moved for summary judgment based upon qualified immunity, and when the district court denied that motion, brought this interlocutory appeal. We conclude it was not clearly established in 2002 that the strip search of a person being introduced into a detention facility violated the Fourth Amendment. Therefore, Dillard is entitled to qualified immunity and to summary judgment.
I. Background
In 1999 the United States Marshals Service (USMS) adopted Policy Directive No. 99-25 to prescribe, among other things, the procedure for strip searching prisoners and “other persons who are under arrest.” The Policy Directive authorized a “strip search,” defined as “[a] complete search of a prisoner’s attire and a visual inspection of the prisoner’s naked body, including body cavities,” when “there is reasonable suspicion that the prisoner may be (a) carrying contraband and/or weapons, or (b) considered to be a security, escape, and/or suicide risk.” “Reasonable suspicion” was to be determined according to the following criteria:

3
a. Serious nature of the offense(s) charged, i.e., whether crime of violence or drugs;
b. Prisoner’s appearance or demeanor; c. Circumstances surrounding the prisoner’s arrest or
detention; i.e., whether the prisoner has been convicted or is a pretrial detainee; d. Prisoner’s criminal history; e. Type and security level of institution in which the prisoner is detained; or f. History of discovery of contraband and/or weapons, either on the prisoner individually or in the institution in which prisoners are detained.
Dillard was the United States Marshal for the Superior Court of the District of Columbia when the plaintiffs were arrested and allegedly strip searched. Under his supervision, all male arrestees held at the Superior Court were strip searched upon arrival, before being put into the cellblock; more specifically, each male arrestee was required to drop his trousers and underwear, bend over or squat, and expose his buttocks and genitals to a male Deputy Marshal. This practice had been instituted in light of an extensive history of prisoners’ concealing contraband on their bodies while in the cellblock. In the four years prior to the plaintiffs’ arrests, the USMS had documented at least 30 incidents in which Deputy Marshals discovered contraband — including drugs, knives,
 Dillard denies this procedure was “followed in practice,” although he concedes for purposes of the appeal that the strip searches occurred in this case. In settlement of Morgan v. Barry, Civ. A. No. 81-1419 (D.D.C. 1981), the District of Columbia had signed a Memorandum of Agreement not to strip search female arrestees prior to arraignment without individualized, reasonable suspicion or unless the arrestee was to come into contact with the general inmate population of the detention facility. The practice of strip searching all male arrestees is no longer in place at the Superior Court.

4
razor blades, and box cutters — on prisoners brought to the Superior Court cellblock by law enforcement.
Metropolitan Police officers arrested the plaintiffs on the morning of September 27, 2002 while they were protesting a meeting of the International Monetary Fund and the World Bank in downtown Washington, D.C. The officers initially transported the protestors to various police holding facilities; later that day, the officers bused the named plaintiffs and others to the Superior Court and transferred them to the custody of the USMS. Because the plaintiffs had refused to identify themselves to law enforcement authorities, they were recorded as “John Does” on the “lockup list” provided to the Deputy Marshals.
At the Superior Court, each plaintiff first passed through a metal detector and was then subjected to a pat-down search. The Deputy Marshals then strip searched the arrestees in a receiving cell in batches of approximately ten men; no plaintiff was touched and no female was present during the search. No contraband was recovered from any plaintiff.
After being strip searched, groups of 20 to 30 men were placed together in holding cells to await disposition of the charges against them. Each had been charged with either “incommoding” traffic or “failure to obey” a law enforcement officer, both of which are misdemeanors. On September 28 they were released, some having been fined and others not sentenced at all.
The named plaintiffs filed this class action seeking damages from Dillard pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). They claimed the strip searches, because performed

5
without individualized suspicion, violated their right under the Fourth Amendment to be free from unreasonable searches.
The district court certified a class of plaintiffs consisting of:
All men who were: (1) arrested on September 27, 2002 by the D.C. Police officials during a series of mass protests in downtown Washington, D.C.; (2) remanded by D.C. Police, following their arrests, into the custody of the U.S. Marshal[] for the District of Columbia prior to being released; and (3) subjected by deputy U.S. Marshals to a strip, visual, body cavity search without any particularized or individualized reasonable suspicion that he was concealing drugs, weapons or other contraband. ...
The plaintiffs moved for summary judgment on the issue of liability and Dillard moved for judgment on the pleadings or, in the alternative, for summary judgment, arguing he was entitled to qualified immunity under Saucier v. Katz, 533 U.S. 194, 200–02 (2001).
The district court denied Dillard’s motion. It concluded the strip searches violated the Fourth Amendment and held Dillard was not entitled to qualified immunity “because the law was clearly established that blanket strip searches of nonviolent, non-felony arrestees were unlawful” in 2002. Bame v. Dillard, 647 F. Supp. 2d 43, 52, 55 (2009). The court also denied the plaintiffs’ motion for summary judgment because Dillard had denied the strip searches occurred, thus creating a genuine issue of material fact. For the purpose of this appeal, however, Dillard concedes the strip searches took place as alleged.

6
II. Analysis
The only issue on appeal is whether Dillard is entitled to qualified immunity, which issue we resolve de novo. Elder v. Holloway, 510 U.S. 510, 516 (1994). Qualified immunity is “a defense that shields officials from suit if their conduct ‘d[id] not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’” Ortiz v. Jordan, 131 S. Ct. 884, 888 (2011) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The Supreme Court in Saucier established a two-step test for determining whether a government official is entitled to qualified immunity. First, the court asks whether “the facts alleged show the officer's conduct violated a constitutional right.” 533 U.S. at 201. If so, then the court must determine “whether the right was clearly established” at the time of the alleged violation. Id. The Supreme Court has since clarified that “the sequence set forth [in Saucier],” although “often appropriate,” is not mandatory. Pearson v. Callahan, 129 S. Ct. 808, 818 (2009). Courts may “exercise their sound discretion” in deciding which question to address first “in light of the circumstances in the particular case at hand.” Id.
In this case the principle of constitutional avoidance counsels that we turn directly to the second question. As the Court recognized in Pearson itself, “There are cases in which it is plain that a constitutional right is not clearly established but far from obvious whether in fact there is such a right.” Id. This is such a case.
Therefore the first and, as it happens, only question we address is whether it was clearly established in September 2002 that strip searching an arrestee before placing him in a detention facility without individualized, reasonable suspicion was unconstitutional. To answer this question, “we look to

7
cases from the Supreme Court and this court, as well as to cases from other courts exhibiting a consensus view,” Johnson v. District of Columbia, 528 F.3d 969, 976 (D.C. Cir. 2008) — if there is one. The facts of such cases need not be “‘materially similar’ ... but have only to show that ‘the state of the law [at the time of the incident] gave [the officer] fair warning that [his alleged misconduct] ... was unconstitutional.’” Id. (quoting Hope v. Pelzer, 536 U.S. 730, 741 (2002)).
Central to our inquiry in this case, as reflected in the briefs of both parties, is the decision in Bell v. Wolfish, 441 U.S. 520 (1979). There pretrial detainees and others housed in the New York Metropolitan Correctional Center (MCC), a “short-term custodial facility,” challenged the constitutionality of strip searching each inmate who had been visited by an outsider, without regard to individualized suspicion. Id. at 523, 558–60. The Court noted that, under the Fourth Amendment generally, the reasonableness of a search is to be determined by balancing “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.
Applying this general “test of reasonableness,” id., the Court in Bell upheld the policy of the MCC because the “legitimate security interests of the institution” in preventing the introduction of contraband into the facility outweighed the inmates’ interest in privacy: “A detention facility is a unique place fraught with serious security dangers,” where the
 The MCC also housed some convicted inmates, “witnesses in protective custody, and persons incarcerated for contempt.” Bell, 441 U.S. at 524. All were subject to the same policy of strip searching.

8
“[s]muggling of money, drugs, weapons, and other contraband is all too common an occurrence.” Id. at 559–60. Consequently, corrections officials are to be “accorded wideranging deference” in adopting policies needed “to maintain institutional security.” Id. at 547–48. In so stating, the Court expressly rejected the plaintiff inmates’ argument that less deference is due to an official holding detainees — as was Dillard in this case — as opposed to convicts. Id. at 547 n.29.
Dillard argues Bell establishes the strip searches conducted at the Superior Court were not clearly unconstitutional. For their part, the plaintiffs contend there was by 2002 — when the searches here occurred — a consensus among the circuits to have considered the issue that Bell required individualized, reasonable suspicion to support the strip search of “persons arrested for non-violent non-drug related misdemeanor offenses.”
Dillard responds with the decisions in Powell v. Barrett, 541 F.3d 1298 (11th Cir. 2008) (en banc), and Bull v. City and County of San Francisco, 595 F.3d 964 (9th Cir. 2010) (en banc), which he says created a conflict among the circuits as to the meaning of Bell. In Powell, the Eleventh Circuit
 The plaintiffs cite Wilson v. Jones, 251 F.3d 1340 (11th Cir. 2001), which was overruled by Powell v. Barrett, 541 F.3d 1298 (11th Cir. 2008) (en banc); Roberts v. Rhode Island, 239 F.3d 107 (1st Cir. 2001); Masters v. Crouch, 872 F.2d 1248 (6th Cir. 1989); Weber v. Dell, 804 F.2d 796 (2d Cir. 1986); Jones v. Edwards, 770 F.2d 739 (8th Cir. 1985); Stewart v. Lubbock County, 767 F.2d 153 (5th Cir. 1985); Giles v. Ackerman, 746 F.2d 614 (9th Cir. 1984), which was overruled by Bull v. City and County of San Francisco, 595 F.3d 964 (9th Cir. 2010) (en banc); Hill v. Bogans, 735 F.2d 391 (10th Cir. 1984); Mary Beth G. v. City of Chicago, 723 F.2d 1263 (7th Cir. 1983); and Logan v. Shealy, 660 F.2d 1007 (4th Cir. 1981).

9
upheld the “practice of strip searching all arrestees as part of the process of booking them into the general population of a detention facility, even without reasonable suspicion to believe that they may be concealing contraband.” 541 F.3d at 1300. In Bull, the Ninth Circuit similarly concluded the policy of the San Francisco Sheriff’s Department of strip searching all arrestees upon introduction into the general jail population did not violate the Fourth Amendment, and therefore reversed the district court’s denial of the sheriff’s motion for summary judgment based upon qualified immunity. 595 F.3d at 966.
The plaintiffs argue we should disregard Powell and Bull because they were decided after the strip searches at issue here and were therefore unknown to Dillard at the relevant time. Alternatively, they would have us distinguish these cases because they addressed the rights of persons being booked into a general jail population for “housing them overnight or longer.” The plaintiffs also point to other cases they say gave Dillard “fair warning” that strip searching the plaintiffs was unconstitutional. These include a March 2002 decision of the District Court observing that “[m]ost federal courts of appeals” had agreed “that strip searches of individuals arrested for minor offenses violate the Fourth Amendment unless the individual is reasonably suspected of concealing weapons, drugs, or other contraband,” Helton v. United States, 191 F. Supp. 2d 179, 184 (D.D.C. 2002), an unpublished Ninth Circuit decision, ACT UP!/Portland v. Bagley, No. 93-35592, 1995 WL 375822, at 5 (June 22, 1995), denying qualified immunity to the Deputy Marshals who had strip searched demonstrators who had been arrested, and the Memorandum of Agreement in Morgan v. Barry, Civ. A. No. 81-1419, discussed above at 3 n..

10
We conclude the law in 2002 did not clearly establish that strip searching all male arrestees prior to placement in holding cells at the Superior Court violated the Fourth Amendment. The governing precedent was then, as it is now, Bell v. Wolfish, and nothing in Bell requires individualized, reasonable suspicion before strip searching a person entering a detention facility. To the contrary, as the Eleventh Circuit would later point out, “The Bell decision means that the Fourth Amendment does not require reasonable suspicion for this type of strip search in detention facilities.” Powell, 541 F.3d at 1308.
The dissent places great weight upon a passage in Wilson v. Layne in which the Supreme Court suggested the plaintiffs there could have prevailed by identifying “a consensus of [lower court] cases of persuasive authority such that a reasonable officer could not have believed that his actions were lawful.” 526 U.S. 603, 617 (1999). We are aware of no Supreme Court case, however, that suggests a reasonable officer could not have believed his actions were lawful despite a consensus among the courts of appeals when a precedent of the Supreme Court supports the lawfulness of his conduct.
A different reading of Bell by the several circuits to have considered the issue before 2002 could not “clearly establish” the unconstitutionality of strip searches in this context. That Powell and Bull came down after 2002 is of no moment; those opinions simply accord with our own understanding that Bell did not establish the unconstitutionality of a strip search under conditions like those present here. 1 WILLIAM BLACKSTONE,
 Since oral argument in this case, the Third Circuit has joined the Eleventh and the Ninth Circuits in upholding the constitutionality of strip searching all arrestees upon their introduction into a general

11
COMMENTARIES 70–71 (If a “judge may mistake the law,” then “subsequent judges do not pretend to make a new law, but to vindicate the old one from misrepresentation”). Indeed, the Eleventh Circuit expressly considered and rejected the pre-2002 decisions of the circuits requiring reasonable, individualized suspicion before conducting a strip search at a detention facility, Powell, 541 F.3d at 1306–07, and the Ninth Circuit likewise rejected those decisions requiring reasonable, individualized suspicion before strip searching an arrestee entering a general jail population, Bull, 595 F.3d at 980–81. In other words, those courts did not believe the prior decisions upon which the plaintiffs rely had established — much less clearly established — that strip searches of the sort here at issue were unconstitutional. Why, then, should Marshal Dillard have believed that?
Clearly, it was reasonable for Dillard, like the courts of appeal that reached the issue after 2002, to believe strip searching all male arrestees was consistent with the law as set forth in Bell and as implemented by the USMS in Policy Directive No. 99-25. The correctional center in Bell, like the Superior Court cellblock, was used primarily to house not convicts but persons awaiting their appearance in court. 441 U.S. at 524. The dissent makes much of the distinction between “pretrial detainees” and “pre-arraigned arrestees” in its attempt to distinguish this case from Bell. As the court in
jail population. Florence v. Bd. of Chosen Freeholders, 621 F.3d 296 (3d Cir. 2010); but see Jimenez v. Wood Cnty., 621 F.3d 372, 375–76 (5th Cir. 2010) (following circuit precedent in holding reasonable suspicion is required to strip search an individual arrested for a minor offense); Stearns v. Clarkson, 615 F.3d 1278, 1282 (10th Cir. 2010) (circuit precedent clearly established “a detainee who is not placed in the general prison population cannot be strip searched” without reasonable suspicion) (internal quotation marks and citation omitted).

12
Powell observed, however, “The policy that the Court categorically upheld in Bell applied to all inmates, including those charged with lesser offenses and even those charged with no wrongdoing at all who were being held as witnesses in protective custody.” 541 F.3d at 1307. Thus, the purported distinction “finds no basis in the Bell decision, in the reasoning of that decision, or in the real world of detention facilities.” Id. at 1310. Because many arrestees, including “[d]emonstrators or protestors engaged in civil disobedience, ... have all the time they need to plan their arrests and conceal items on their persons,” id. at 1313–14, we have no reason to believe arrested demonstrators are any less a threat to security than are pretrial detainees.
Furthermore, the Court’s rationale in Bell applies equally to any detention facility that is “fraught with serious security dangers,” id. at 559, as was the cellblock at the Superior Court, where often hundreds of arrestees were processed in a single day. Contrary to the plaintiffs’ contention, nothing whatsoever in Bell suggests its holding is limited to overnight detention facilities. Cf. Powell, 541 F.3d at 1310 (“The need for strip searches at all detention facilities ... is not exaggerated”) (emphasis added). Nor — despite the emphasis our dissenting colleague places upon “intermingling” with other arrestees or detainees — did the Court in Bell anywhere mention, let alone rely upon, such intermingling as a reason for upholding the strip searches. In any event, arrestees held at the Superior Court were in fact commingled with other arrestees in holding cells; no one suggests each arrestee was put in a separate cell.
Moreover, the Court in Bell upheld strip searches even though “there ha[d] been only one instance where an MCC inmate was discovered attempting to smuggle contraband into the institution on his person.” 441 U.S. at 559. As the Court

13
speculated, the dearth of incidents may be a “testament to the effectiveness of this search technique as a deterrent.” Id. Be that as it may, the record here substantiates Dillard’s point that the Superior Court had a persistent problem with contraband being smuggled into the cellblock, the very reason for strip searches contemplated in subsection (f) of Policy Directive No. 99-25. Furthermore, the strip searches at the Superior Court were no more intrusive than those upheld as reasonable in Bell, where a male was required to “lift his genitals and bend over to spread his buttocks for visual inspection.” 441 U.S. at 558 n.39.
Contrary to our dissenting colleague’s assertion, decisions of the courts of appeals reached after the events here in suit are relevant to the issue of qualified immunity. In determining whether an official is entitled to qualified immunity, courts focus upon the state of the law “at the time [the] action occurred” because “i[f] the law at that time was not clearly established,” then the official “could not reasonably be expected to anticipate subsequent legal developments.” Harlow, 457 U.S. at 818. The point is not, as the dissent would have it, to deny an official the benefit of subsequent cases reflecting the uncertain state of the law at the time of his action. As the Supreme Court in Pearson said of its earlier decision in Wilson v. Layne, there “a Circuit split on the relevant issue had developed after the events that gave rise to suit”; the Court nonetheless “concluded that ‘[i]f judges thus disagree on a constitutional question, it is unfair to subject police to money damages for picking the losing side of the controversy.’” Pearson, 129 S. Ct. at 823 (quoting 526 U.S. at 618). So, too, here would it be unfair to subject Dillard to money damages for having relied upon the Supreme Court’s decision in Bell.

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III. Conclusion
Because there was in 2002 no clearly established constitutional prohibition of strip searching arrestees without individualized, reasonable suspicion, we need not consider whether Dillard had individual suspicion as to each of the plaintiffs. The order of the district court is reversed and the case is remanded for that court to enter summary judgment for the defendant.
So ordered.

ROGERS, Circuit Judge, dissenting: Contrary to the principles underlying qualified immunity as a limitation on the occasions when liability for unconstitutional conduct by a public official will be excused, the majority holds the conduct is to be evaluated by recently articulated law and not, as the Supreme Court has instructed, by the clearly established law reflected in the consensus of persuasive authority at the time of the conduct. In so doing, this is the first time a circuit court of appeals has suggested that the protections of the Fourth Amendment to the Constitution against unreasonable searches do not extend to an individual arrested for a non-violent minor offense who is awaiting arraignment apart from the general population of detainees, and is subjected to a strip search in the absence of reasonable suspicion he is hiding contraband or weapons. This runs contrary to the consensus of ten circuit courts of appeals at the time of the challenged strip searches. To reach this result the majority tramples over Supreme Court precedent and gives short shrift to the protections of the Fourth Amendment. Accordingly, I respectfully dissent.
I.
The former United States Marshal for the District of Columbia appeals on the ground that he is entitled to qualified immunity with respect to the alleged violations of the Fourth Amendment by peaceful protesters who in 2002 were subjected to pre-arraignment strip searches at the D.C. Superior Court cell block.1 The plaintiffs came to the Nation’s Capital to protest the policies of the International Monetary Fund and the World Bank on the occasion of the institutions’ annual meetings on September 27, 2002. They were arrested for either of two nonviolent misdemeanors, “incommoding,” D.C. Code § 22-1307,
1 See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).

2
or failure to obey a police officer, id., § 22-1121. They remained together while in police custody throughout the day, and they were allowed to keep their personal property, such as knapsacks. Upon being turned over to the custody of the U.S. Marshals Service at the D.C. Superior Court, they were patted down and screened by a magnetometer before entering the cell block; no contraband or weapons were found. They then were subjected to drop-squat-and-cough strip searches; no contraband or weapons were found. They were released from custody upon being arraigned by a judicial officer of the Superior Court without being intermingled with other arrestees or committed to a detention facility to await trial. See Bame, et al. v. Dillard, 647 F. Supp. 2d 43, 47–48 (D.D.C. 2009).
Two Supreme Court cases elucidate the relevant qualified immunity principles that the majority ignores in relying on developments in the law subsequent to the challenged strip searches. First, in Harlow v. Fitzgerald, 457 U.S. 800 (1982), the Supreme Court held that “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or Constitutional rights of which a reasonable person would have known.” Id. at 818. The Court observed:
Reliance on the objective reasonableness of an official’s conduct, as measured by reference to clearly established law, should avoid excessive disruption of government and permit the resolution of many insubstantial claims on summary judgment. On summary judgment, the judge appropriately may determine, not only the currently applicable law, but whether that law was clearly established at the time an action occurred.

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Id. (emphasis supplied and footnote omitted). The Court emphasized that “[b]y defining the limits of qualified immunity essentially in objective terms, we provide no license to lawless conduct.” Id. at 819. Thus, “[w]here an official could be expected to know that certain conduct would violate statutory or Constitutional rights, he should be made to hesitate; and a person who suffers injury caused by such conduct may have a cause of action.” Id. at 819.
While emphasizing that “a reasonably competent public official should know the law governing his conduct,” id. at 819, the Court reserved judgment on the “circumstances under which ‘the state of the law’ should be ‘evaluated by reference to the opinions of this Court, of the Courts of Appeals, or of the local District Court,’” id. at 819 n.32 (quoting Procunier v. Navarette, 434 U.S. 555, 565 (1978)). In Wilson v. Layne, 526 U.S. 603 (1999), the Court resolved this dilemma by concluding that “cases of controlling authority in their jurisdiction” or “a consensus of cases of persuasive authority” could suffice. Id. at 617. In Harlow, the Court had observed that “an official could not reasonably be expected to anticipate subsequent legal developments.” 457 U.S. at 818. Rather, the law at the time of the challenged conduct would be the measure of his eligibility for qualified immunity. See id.
Second, in Safford Unified School District No. 1 v. Redding, 129 S. Ct. 2633 (2009), the Supreme Court, continuing to focus on the law at the time of the challenged conduct, reiterated that there need not be a prior factually indistinguishable case in order for qualified immunity to be denied: “there is no need that ‘the very action in question [have] previously been held unlawful.’” Id. at 2643 (quoting Wilson v. Layne, 526 U.S. 603, 615 (1999) (alteration in original)). Although “[t]he unconstitutionality of outrageous conduct obviously will be unconstitutional,” the Court observed that

4
“even as to action less than an outrage, officials can still be on notice that their conduct violates established law . . . in novel factual circumstances.” Id. at 2643 (quoting Hope v. Pelzer, 536 U.S. 730, 741 (2002) (alteration in original)).
Prior to the events in Redding, the issue regarding searches of students had been addressed in only a handful of cases and they went both ways. Id. at 2643–44. The Court, therefore, focused on the extent to which the mixed case law suggested that a previous Supreme Court decision, New Jersey v. T.L.O., 469 U.S. 325 (1985), did not definitively resolve the issue. Id. The analysis is different in the instant case because in 2002 the law of the circuit courts of appeals was uniform and had been for some time, much as in Pearson v. Callahan, 129 S. Ct. 808, 822–23 (2009), where the Supreme Court concluded the narcotics task force officers were entitled to rely on the consensus among the courts at the time they allowed the media to accompany them upon entering Pearson’s home that their conduct did not violate the Fourth Amendment, despite the lack of a ruling from the officers’ own federal circuit, id. at 823. Marshal Dillard characterizes the Supreme Court’s decision in Bell v. Wolfish, 441 U.S. 520 (1979), as permitting visual bodycavity inspections in an institutional setting for security reasons, and thus permitting the challenged strip searches. This characterization, however, fails to take into account the question left open in Bell, the evolution of the law addressing that question between 1979 and 2002, or the factual differences between the judicially committed pretrial detainees in Bell and the pre-arraignment arrestees in the instant case.
A. Bell v. Wolfish involved the treatment of pretrial detainees who had been committed to “a federally operated short-term custodial facility in New York City designed primarily to house pretrial detainees” that also housed “some convicted inmates

5
who are awaiting sentencing or transportation to a federal prison or who are serving generally relatively short sentences.” 441 U.S. at 523–24. After “every contact visit with a person from outside the facility,” the pretrial detainees were “required to expose their body cavities for visual inspection as a part of a strip search”: if male, “he must lift his genitals and bend over to spread his buttocks for visual inspection[,]” if female, “vaginal and anal cavities . . . are visually inspected.” Id. at 558 & n.39. The district court had ruled that body-cavity searches were permissible only upon a contemporaneous showing of probable cause to believe the inmate is concealing contraband. See United States ex rel. Wolfish v. Levi, 439 F. Supp. 114, 148 (S.D.N.Y. 1977). The Supreme Court reversed, holding that, assuming pretrial detainees “retain some Fourth Amendment rights upon commitment to a corrections facility,” Bell v. Wolfish, 441 U.S. at 558, there are circumstances in which a strip search can be conducted “on less than probable cause,” without clarifying what the standard actually is, id. at 560. Although stating that “[a]dmittedly, this practice instinctively gives us the most pause,” the Court held that “under the circumstances, we do not believe that these searches are unreasonable.” Id. at 558. The Court noted with regard to the pretrial detainees that “[u]nder the Bail Reform Act, 18 U.S.C. § 3146, a person in the federal system is committed [by a judicial officer after a hearing] to a detention facility only because no other less drastic means can reasonably ensure his presence at trial.” Id. at 524; see 18 U.S.C. § 3142(e). The Court further observed that “[a] detention facility is a unique place fraught with serious security dangers,” Bell, 441 U.S. at 559, noting that “[s]muggling of money, drugs, weapons, and other contraband is all too common an occurrence,” id.
In Bell the Court stated that the “test of reasonableness under the Fourth Amendment” is “a balancing of the need for the particular search against the invasion of personal rights that

6
the search entails.” Id. at 559. It reasoned that “maintaining institutional security and preserving internal order and discipline are essential goals that may require limitation or retraction of the retained constitutional rights of both convicted prisoners and pretrial detainees,” and that infringement of constitutional guarantees “must be evaluated in the light of the central objective of prison administration, safeguarding institutional security.” Id. at 546–47. Concluding both that “[a] detention facility is a unique place fraught with serious security dangers,” id. at 559 (emphasis added), and that “[t]he searches must be conducted in a reasonable manner,” id. at 560, the Court emphasized that it was addressing only one question as to the committed pretrial detainees: “whether visual body-cavity inspections as contemplated by the [detention facility’s] rules can ever be conducted on less than probable cause.” Id. (emphasis in the original). Upon “[b]alancing the significant and legitimate security interests of the institution against the privacy interests of the inmates,” the Court “conclude[d] that they can.” Id.
The question remaining after Bell was whether strip searches of individuals arrested for non-violent minor offenses who are not committed to a detention facility to await trial are reasonable under the Fourth Amendment in the absence of reasonable suspicion the arrestee is hiding contraband or weapons. Lower courts applied Bell’s balancing test, noting that the Supreme Court had approved strip searches of pretrial detainees only where objective circumstances indicated they were needed to maintain institutional security, and not as validating a blanket policy of strip searching all pretrial detainees. See, e.g., Masters v. Crouch, 872 F.2d 1248, 1253 (6th Cir. 1989); Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1272 (7th Cir. 1983). The Fourth Circuit, in holding unconstitutional strip searches of arrestees who would not be intermingled with the general jail population and were accused

7
of crimes not associated with concealing contraband, identified four factors that weighed against strip searching: (1) the plaintiff would not be intermingled with the general jail population; (2) the offense was not one usually associated with possession of weapons or contraband; (3) there was no cause to believe the particular detainee might possess either; and (4) when the search was conducted the plaintiff had been at the detention center for one and one-half hours “without even a pat-down search.” Logan v. Shealy, 660 F.2d 1007, 1013 (4th Cir. 1981), cert. denied sub nom. Clements v. Logan, 455 U.S. 942 (1982). The following year the Seventh Circuit rejected strip search distinctions between male and female arrestees as a denial of equal protection, stating that the City of Chicago had “failed to show that men and women minor offenders are not similarly situated,” Mary Beth G., 723 F.2d at 1274 (emphasis in original), and concluding that a strip search of misdemeanor arrestees in City lockups while awaiting arrival of bail money was impermissible absent “a reasonable suspicion by the authorities that either of the twin dangers of concealing weapons or contraband existed,” id. at 1273. The Ninth and Tenth Circuits adopted a similar approach in balancing the interests identified in Bell, and concluded that intermingling with other arrestees or detainees did not necessarily justify strip searches. See Giles v. Ackerman, 746 F.2d 614, 618–19 (9th Cir. 1984), cert. denied, 471 U.S. 1053 (1985), overruled on other grounds by, Hodgers-Durgin v. de la Vina, 199 F.3d 1037, 1040 (9th Cir. 1999) (en banc); Hill v. Bogans, 735 F.2d 391, 394 (10th Cir. 1984). The Second Circuit in Weber v. Dell, 804 F.2d 796 (2d Cir. 1986), adopted an analysis like that of the Fourth Circuit, id. at 801–02, and noted the ten like opinions from seven circuit courts of appeals, id. at 801, in rejecting as too broad a reading of Bell that “suggest[s], much less require[s]” strip searches of all arrested persons held at a jail in the interest of institutional security, id. at 801. The Sixth Circuit, in view of its precedent

8
and that of other circuit courts of appeals, concluded, in 1989, that:
it was clearly established in October 1986 that authorities may not strip search persons arrested for traffic violations and nonviolent minor offenses solely because such persons ultimately will intermingle with the general population at a jail when there were no circumstances to support a reasonable belief that the detainee will carry weapons or other contraband into the jail. It is objectively reasonable to conduct a strip search of one charged with a crime of violence before that person comes into contact with other inmates. There is an obvious threat to institutional security.
Masters, 872 F.2d at 1255. Thus, prior to 2002 all ten of the circuit courts of appeal to address the open question from Bell held that strip searches of arrestees for non-violent minor offenses in the absence of reasonable suspicion were unreasonable under the Fourth Amendment.
B. As the district court found, and the majority does not dispute, Maj. Op. at 8 n.*, “[u]ntil 2008, every federal circuit court of appeals to have addressed the issue (ten out of twelve) ruled that, under Bell, suspicionless strip searches of pre-trial arrestees charged with non-violent minor offenses was unreasonable and thus unconstitutional.” Bame v. Dillard, 647 F. Supp. 2d 43, 51 (D.D.C. 2009). The district court cited: Wilson v. Jones, 251 F.3d 1340, 1343 (11th Cir. 2001); Swain v. Spinney, 117 F.3d 1, 7 (1st Cir. 1997); Masters, 872 F.2d at 1250 (6th Cir.); Weber, 804 F.2d 796 (2d Cir.); Stewart v. Lubbock County, 767 F.2d 153, 156 (5th Cir. 1985); Jones v. Edwards, 770 F.2d 739 (8th Cir. 1985) ; Giles, 746 F.2d at 616–18 (9th Cir.); Hill, 735 F.2d at 394 (10th Cir.); Mary Beth

9
G., 723 F.2d 1263 (7th Cir.); and Logan, 660 F.2d at 1013 (4th Cir.). Each of these circuit courts of appeals held either that reasonable suspicion was required regardless of whether the arrestee was intermingled with other arrestees or that reasonable suspicion was required when the arrestee did not so intermingle. “In other words, at the time of the searches at issue here (September 2002), all these courts, some for nearly twenty-five years, required at least reasonable suspicion to strip search a pre-trial or pre-arraignment arrestee charged with a non-violent, non-drug crime.” Bame, 647 F. Supp. 2d at 51.
The law in the District of Columbia as of 2002 reflected the consensus of the circuit courts of appeal. In 1982, in a case pending in the U.S. District Court for the District of Columbia involving female protesters, the District government entered into a memorandum of agreement that strip and squat searches of females arrested for non-violent misdemeanors could be conducted only where there is reasonable suspicion the arrestee is carrying a weapon, contraband, or evidence that officers reasonably believe can only be discovered by a strip or squat search or, in some circumstances, when the arrestee is going to be placed in the general inmate population. Morgan v. District of Columbia, No. 81-1419 (D.D.C. July 22, 1981); see Bame, 647 F. Supp. 2d at 47. Although Marshal Dillard argues that the Morgan agreement concerned only female arrestees and did not bind him, the district court noted that it bound the District of Columbia and that Marshal Dillard was familiar with it, Bame, 647 F. Supp. 2d at 47 (citing depositions of Marshal Dillard and his Deputy). Marshal Dillard concedes that a case applying the Morgan agreement, Morgan v. Barry, 596 F. Supp. 897, 899 (D.D.C. 1984), required reasonable individualized suspicion before permitting the challenged strip search procedure.
Additionally, the settlement in Helton v. United States, 191 F. Supp. 2d 179, 185 (D.D.C. 2002), put the Marshals Service in

10
the District of Columbia directly on notice six months before the challenged strip searches that they were unconstitutional absent individualized reasonable suspicion. Although Helton involved the Federal Tort Claims Act and District of Columbia tort law rather than the Fourth Amendment, the Constitutional issue was directly implicated because the government argued that plaintiffs (who were anti-fur protesters at a Neiman Marcus department store) were required to prove that the strip and squat search ordered by the U.S. Marshals Service was unconstitutional in order to prevail on their intrusion-upon-seclusion tort claim. The district court ruled that plaintiffs had adequately alleged a Constitutional violation by the U.S. Marshals Service to the extent doing so was required to prevail on the non-constitutional tort claim, noting the “wealth of case law” requiring reasonable suspicion:
Although almost every federal court of appeals has ruled that strip searches of individuals arrested for nonviolent misdemeanors or other minor offenses violate the Fourth Amendment absent “reasonable suspicion,” this Circuit has yet to address the issue. The District Court reached the issue in Doe v. Berberich, 704 F. Supp. 269 (D.D.C. 1988). . . . The court’s central holding is in line with virtually every other decision on this issue: “[t]here must be reasonable suspicion that the category of offenders subject to strip searches might possess weapons or contraband.” Id. at 271. The court then held that the strip searches were constitutional even though plaintiffs were charged only with misdemeanors, because the police had complied with governing regulations and had reasonable suspicion to believe plaintiffs were concealing contraband or drugs, given the nature of the offense of possession of a controlled substance. Id. at 272.

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Helton, 191 F. Supp. 2d at 185. In Doe v. Berberich, the district court noted precedent rejecting different strip search requirements for female and male arrestees. 704 F. Supp. at 271 (citing Mary Beth G. v. City of Chicago, 723 F.2d 1263 (7th Cir. 1983)).
Reflecting this state of the law, the United States Marshals Service Policy issued in July 1999 instructed that members of the Marshals Service were authorized to conduct strip searches “when there is reasonable suspicion that the prisoner may be (a) carrying contraband and/or weapons, or (b) considered to be a security, escape, and/or suicide risk.”2 USMS Policy 99-25 at 3. The Policy made no distinction between male and female arrestees, and it included a non-exclusive list of six criteria on which to base reasonable suspicion.3
2 Marshal Dillard has not claimed that the plaintiffs presented individualized security, escape, and/or suicide risks.
3 The Policy listed six non-exclusive criteria, one or more of which may provide the basis for concluding reasonable suspicion exists:
a. Serious nature of the offense(s) charged, i.e., whether crime of violence or drugs; b. Prisoner’s appearance or demeanor; c. Circumstances surrounding the prisoner’s arrest or detention[,] i.e., whether the prisoner has been convicted or is a pretrial detainee; d. Prisoner’s criminal history; e. Type and security level of institution in which the prisoner is detained; or f. History and discovery of contraband and/or weapons, either on the prisoner individually or in the institution in which the prisoners are detained.

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The district court found that Marshal Dillard and his Deputy “received annual training on the constitutional and legal standards in regard to searches and strip searches,” Bame, 647 F. Supp. 2d at 47 (citing depositions of Marshal Dillard and his Deputy), in addition to being familiar with then-recent litigation in the District of Columbia challenging strip searches of female protesters, id. Further, the district court found that Marshal Dillard did “not seriously contend that no justification was required for the [‘Drop, Squat, and Cough’ strip] search,” but simply “did not develop any justification for strip searching the protester-arrestees, despite the balancing called for in the USMS Policy dating back to 1999.” Bame, 647 F. Supp. 2d at 51–52; see id. at 46.
According to Marshal Dillard, in September 2002 the policy in the District of Columbia was to perform drop-squat-andcough strip searches of all persons in Marshals Service custody who came into the Superior Court cell block. See Dillard Deposition at 23 (May 29, 2008). This policy applied, as the plaintiffs’ experiences show, even to those who had been arrested for non-violent minor offenses where extensive patdowns of clothed arrestees and a magnetometer metal detector revealed no contraband or weapons, and the arrestees were not to be intermingled with other arrestees and had not been arraigned or committed to a detention facility to await trial. The district court ruled that the blanket policy violated the national USMS Policy 99-25 and that in view of the post-Bell case law consensus, the blanket policy and the strip searches of the plaintiffs were unreasonable under the Fourth Amendment. Id. at 51–52; see id. at 47–48.
USMS Policy 99-25 at 3.

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II.
Marshal Dillard’s position on appeal, that because Bell allowed strip searches in some circumstances and there was no case law to the contrary addressing exactly the same circumstances as in the instant case, the challenged strip searches could not be considered clearly unconstitutional, is without merit as a matter of Supreme Court precedent, Court of Appeals precedent, and local District Court precedent. See Harlow, 457 U.S. at 818 n.32; supra Part I. Indeed he goes so far as to contend that, contrary to “a consensus of cases of persuasive authority,” Wilson v. Layne, 526 U.S. at 617, the U.S. Marshals Service was free to conclude that strip searches in the absence of individualized articulable suspicion were constitutional if a District of Columbia appellate court or the Supreme Court had not addressed the issue. See Appellant’s Br. at 28–29. The majority’s analysis is no less troubling inasmuch as it confuses the roles of the court and the public official under qualified immunity analysis. The Supreme Court has repeatedly rejected the notion that a “reasonably competent public official,” Harlow, 457 U.S. at 819, would not be bound to know the “consensus of persuasive authority” from other circuits much less his own district court by concluding that plaintiffs may bring to the court either “cases of controlling authority in their jurisdiction at the time of the incident which clearly established the rule on which they seek to rely, [ ]or . . . a consensus of cases of persuasive authority such that a reasonable officer could not have believed that his actions were lawful,” Wilson v. Layne, 526 U.S. at 617; see Pearson, 129 S. Ct. at 823.
A. Strip searches, as Bell makes clear and the district court acknowledged, must balance strong institutional security concerns of a detention facility and deference to prison officials against the Fourth Amendment’s protections. Bame, 647 F.

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Supp. 2d at 52 (citing Allison v. GEO Group, Inc., 611 F. Supp. 2d 433, 462 (E.D. Pa. 2009)); see Bell, 441 U.S. at 559, 560. Not once, before or after 2002, has a circuit court of appeals, or the Supreme Court, held that pre-arraignment arrestees for nonviolent minor offenses who are held apart from other arrestees and pretrial detainees may be strip searched on less than reasonable suspicion that they are hiding contraband or weapons. More recent cases include Jimenez v. Wood Cnty., 621 F.3d 372 (5th Cir. 2010); Sterns v. Clarkson, 615 F.3d 1278 (10th Cir 2010); Archuleta v. Wagner, 523 F.3d 1278, 1282, 1286 (10th Cir. 2008); and Campbell v. Miller, 499 F.3d 711, 718 (7th Cir. 2007). The recent decision of the Third Circuit in Florence v. Board of Chosen Freeholders of the County of Burlington, 621 F.3d 296 (3d Cir. 2010) (decided after briefing in the instant case), also does not upset the appellate courts’ consensus, for the only question presented was “whether it is constitutional for jails to strip search arrestees upon their admission to the general population,” id. at 298 . Marshal Dillard’s attempt to distinguish the Ninth Circuit’s opinion in Giles, 746 F.2d at 617 — which held unconstitutional strip searches without reasonable suspicion that an individual arrested for a minor traffic offense possessed a weapon or contraband — as involving a jail that historically had experienced fewer contraband problems than the D.C. Superior Court cell block, ignores that the arrestee in Giles was placed in the general jail population, 746 F.2d at 616. And he apparently ignores that the approach adopted by the Supreme Court in Harlow and its progeny, focusing on whether at the time of a public official’s challenged conduct a “doctrine had gained acceptance in the lower courts,” Pearson, 129 S. Ct. at 822 (even if his “own Federal Circuit had not yet ruled,” id. at 823), protects officials who abide by that consensus from incurring liability for their conduct, see id. at 823.

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Marshal Dillard’s reliance on post-2002 decisions is doubly flawed. Under Supreme Court qualified immunity precedent, circuit court of appeals decisions since the strip searches at issue in 2002 have no bearing on whether he is entitled to qualified immunity on the ground that there was no clearly established law to be followed in 2002. See Pearson, 129 S.Ct. at 823; Wilson v. Layne, 526 U.S. at 617; Harlow, 457 U.S. at 818. But taken on their own merit the post-2002 cases are distinguishable on their facts and do not demonstrate that the law was unsettled in 2002, much less after. The Eleventh Circuit’s en banc reconsideration of Bell in Powell v. Barrett, 541 F.3d 1298 (11th Cir. 2008), involved strip searches of “all arrestees as part of the process of booking them into the general population of a detention facility,” id. at 1300, and the holding was limited to general population detainees, notwithstanding some of its more sweeping language suggesting broader applicability. See id. at 1300, 1314. Similarly, the Ninth Circuit’s 2010 en banc reconsideration of Bell was explicit in stating that although it was upholding against a Fourth Amendment facial challenge a policy allowing strip searches of all pre-arraignment arrestees introduced into the general jail population for custodial housing, “[w]e do not, however, disturb our prior opinions considering searches of arrestees who were not classified for housing in the general jail or prison population” and that “[t]he strip search policy at issue in this case, and our holding today, applies only to detainees classified to enter the general corrections facility population.” Bull v. City and County of San Francisco, 595 F.3d 964, 981 & n.17 (9th Cir. 2010). It is clear from this language that the Ninth Circuit sitting en banc in Bull took pains not to disturb the well-settled case law requiring reasonable suspicion to strip search arrestees who are not placed in the general jail population. Moreover, distinguishable as these cases are, it bears noting that it required decisions by the en banc courts to revisit Bell, suggesting that absent en banc review the issue was clearly established in those circuits

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Marshal Dillard’s response, relying on Evans v. Stephens, 407 F.3d 1272 (11th Cir. 2005), Savard v. Rhode Island, 338 F.3d 23, 31–33 (1st Cir. 2003), and Oxley v. Penobscot County, 714 F. Supp. 2d 180 (D. Me. 2010), does not advance his cause. In Evans, 407 F.3d at 1278–79, the Eleventh Circuit distinguished Bell because the strip search was conducted by the arresting officer for the purpose of obtaining evidence, and not in order to prevent contraband from entering the general jail population. And, in any event, the court denied qualified immunity despite the absence of Supreme Court precedent explicitly addressing the standard to be applied. Id. at 1279, 1283. In Savard, 338 F.3d at 26, 31–33, the First Circuit allowed strip searches of misdemeanor arrestees who had not generally been searched before and were intermingled with violent offenders at the maximum security prison, as distinguished from a local jail or police station, which the court concluded was dispositive. In Oxley, 714 F. Supp. 2d at 181 & n.3, the Maine district court did not reach the Constitutional question, instead affirming a magistrate judge’s recommendation of qualified immunity for an officer conducting a strip search who incorrectly but reasonably believed there was a valid reasonable articulable suspicion that the plaintiff was carrying contraband, because the plaintiff failed timely to object to the grant of summary judgment. See also id. at 184 n.4. Given that the district court’s interpretation of Bell in Oxley is diametrically opposed to that of Marshal Dillard, id. at 183–86, it is unclear how he has concluded the case could help his cause.
In sum, Marshal Dillard’s reference to a circuit split on certain strip search law questions is unpersuasive for purposes of qualified immunity because there was not a split in 2002. His contention that “[a]lthough only the law that existed before September 2002 can be relied upon to establish its clarity in 2002, the reasonableness of [his] conduct is properly analyzed considering the application of cases more recent than 2002,”

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Reply Br. 21, fails for at least two reasons. First, it ignores Supreme Court precedent that, in order to secure Fourth Amendment protections, “a reasonably competent public official” must “know the law governing his conduct” and “that certain conduct would violate statutory or constitutional rights,” Harlow, 457 U.S. at 819. A decrease in clarity of the law after 2002 would not make a strip search in 2002 more reasonable. Second, none of the cases cited by Marshal Dillard upset the consensus of circuit courts of appeals “that authorities may not strip search persons arrested for . . . nonviolent minor offenses solely because such persons ultimately will intermingle with the general population at a jail when there were no circumstances to support a reasonable belief that the detainee will carry weapons or other contraband into the jail.” Masters, 872 F.2d at 1255, quoted supra page 8. His suggestion that the number of cases discussing strip searches indicates that the law is uncertain also is unpersuasive because the cases reach the same result. Indeed, as a further indication of this stability, most recently (after briefs in this case had been filed) the Tenth Circuit in Stearns v. Clarkson, 615 F.3d 1278 (10th Cir. 2010), held that a sergeant was not entitled to qualified immunity for strip searching an arrestee at a county jail without reasonable suspicion where the arrestee was not placed in the general inmate population although the officer who performed the strip search had been told that the arrestee was “‘going around following officers, and going to their homes, making threats.’” Id. at 1287. The court concluded that the threats did not supply “specific and articulable facts” suggesting a reasonable suspicion that the arrestee was carrying contraband, and the officer’s conduct was therefore contrary to clearly established law, including controlling circuit precedent. Id.
To the extent Marshal Dillard suggests that the national USMS Policy 99-25 allowed a blanket, non-particularized strip search if an arrestee was entering a facility with a history of

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smuggled contraband, that Policy itself states that strip searches must be based on reasonable suspicion that a prisoner may be carrying contraband or weapons or may be a security risk, and that one factor to consider is the “[h]istory of discovery of contraband and/or weapons, either on the prisoner individually or in the institution in which prisoners are detained.” A blanket policy based solely on the history of contraband discovered at the Superior Court cell block ignores the other factors listed in Policy 99-25, such as the nature of the offense charged, and the balancing that Bell contemplates, 441 U.S. at 559, 560. Moreover, to the extent Marshal Dillard suggests post-2002 events are relevant in evaluating the reasonableness of his conduct, a blanket policy is inconsistent with the revised national U.S. Marshals Service policy of April 23, 2003 allowing strip searches only upon an individualized finding of reasonable suspicion and a supervisor’s approval.
B. The majority opinion does not address the specific Constitutional right asserted here: the right of an individual arrested for a non-violent minor offense who, unlike in Bell, is awaiting arraignment to be free from a strip search absent reasonable suspicion the individual is hiding contraband or weapons. In Wilson v. Layne, however, the Supreme Court observed that “[i]t could plausibly be asserted that any violation of the Fourth Amendment is ‘clearly established,’ since it is clearly established that the protections of the Fourth Amendment apply to the actions of police.” 526 U.S. at 615. As a consequence, the Court held that “the right allegedly violated must be defined at the appropriate level of specificity before a court can determine if it was clearly established.” Id. (citing Anderson v. Creighton, 483 U.S. 635, 641 (1987)). It is reasonable, as the district court found, to expect Marshal Dillard as “a reasonably competent public official,” Harlow, 457 U.S. at 819, to be aware in 2002 of the distinction between the

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institutional concerns arising from judicially committed pretrial detainees who have had contact visits with persons outside of a detention facility, as in Bell, and those that arise at a courthouse cell block with regard to pre-arraignment arrestees for nonviolent minor offenses who have been subjected to pat-downs and metal magnetometric searches and are not intermingled with other arrestees or pretrial detainees, and consequently have no opportunity to smuggle contraband and weapons to others and thereby threaten institutional security, because the case law consensus made, that distinction. So does the national U.S. Marshals Service Policy.
Instead, the majority, by eliding this distinction leaves any right so broadly defined that it could plausibly be asserted that no violation of the Fourth Amendment is “clearly established” absent an opinion of the Supreme Court or this court addressing the merits of a Fourth Amendment claim in the particular circumstances at issue. Absent that, according to the majority, a reasonable public official ignores the consensus of persuasive opinion of the circuit courts of appeals, ignores rulings of the federal district court having jurisdiction over the official’s conduct, ignores the policy of his own agency summarizing the current law, and instead hopes that someday a court will conclude the prior consensus misapprehended Constitutional protections. Whereas the Supreme Court has acknowledged that “an official could not reasonably be expected to anticipate subsequent legal developments,” Harlow, 457 U.S. at 818, the majority would, in effect, allow a public official to invoke qualified immunity upon stating: “I reasonably anticipated that the courts would revise their opinions.” It matters not, or so it appears if the public official’s attempt at clairvoyance is deemed reasonable by a court, whether the official’s vatic utterance comes to fruition. See Maj. Op. at 10-12. Yet the point underscored by Harlow and its progeny in adopting an objective standard is to ensure the protection of Constitutional rights by

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limiting qualified immunity claims to those based on the law as a “reasonably competent public official” would understand it at the time of his challenged action. Otherwise qualified immunity as the majority defines it leaves the protection of individual Constitutional rights to the subjective interpretation of public officials.
Most notably, in deciding whether for purposes of qualified immunity the law was clearly established in 2002, the majority fails to distinguish, as established by Harlow and its progeny, between the role of the court to determine whether the law is “clearly established” at the time of the public official’s challenged conduct, and the role of the public official to know and conform his conduct to controlling case law in his jurisdiction, or if none, to the consensus of cases of persuasive authority of which a reasonably competent public official should be aware. In allowing Marshal Dillard to claim qualified immunity based on post-2002 circuit court of appeals decisions, the majority returns to the pre-Harlow subjective standard whereby a public official is empowered to read a Supreme Court decision on the Fourth Amendment (Bell) as being conclusive on the constitutionality of strip searches of pre-arraignment arrestees such as the plaintiffs despite the clearly established consensus among the other circuit courts of appeals and district court opinions in the official’s circuit. As the Supreme Court has adhered to the objective standard adopted in Harlow, the public official has no such authority. Although this court has authority to read Bell differently than other circuits, Marshal Dillard can point to no case law that would allow him to make that determination, and the majority understandably does not address the cases he cites — Evans, Savard and Oxley — as they offer no support for the view that the consensus was weak or breaking up, see supra Part II.A

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The majority misses the point in its discussion of how the ten circuit courts of appeals had interpreted Bell as of 2002. First, for purpose of claiming qualified immunity the Supreme Court has already advised public officials of the standard to which they must conform their conduct: clearly established law as evidenced by a consensus of persuasive authority at the time of their conduct. Of course, had the Supreme Court held, or were this court to hold, that the challenged conduct is Constitutionally permissible, which the majority does not hold, then the plaintiffs would have no Bivens claim: “If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity.” Saucier v. Katz, 533 U.S. 194, 201 (2001). But the subjective belief of a public official about the law is not the test. But see Maj. Op. at 10-12. Second, because Bell involved judicially committed pretrial detainees who had contacts with persons outside of the facility while housed in a “unique” detention facility with convicted prisoners, the Court’s particular balancing of “the circumstances,” Bell, 441 U.S. at 558, is of limited relevance. The question left open in Bell was answered for Marshal Dillard before September 2002 by a consensus of persuasive authority from the circuit courts of appeals and controlling authority from the federal district court having jurisdiction over his conduct. These courts, upon applying Bell’s balancing test, had uniformly held that the Fourth Amendment protects pre-arraignment arrestees who like the plaintiffs were arrested for non-violent minor offenses from strip searches absent reasonable individualized suspicion of hiding contraband or weapons.
Additionally, the majority concludes, erroneously, that the en banc decisions of the Eleventh and Ninth Circuits in Powell and Bull rejected the prior consensus reading of Bell as regards pre-arraignment arrestees such as the plaintiffs and conflates this rejection with a determination that those circuits more recently

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did not see Fourth Amendment law as clearly established in 2002. The majority then uses this mistaken reading of Powell and Bull to conclude that Marshal Dillard was likewise empowered to interpret the law as unsettled in 2002. See Maj. Op. at 10-12. The Eleventh and Ninth Circuits have the authority to change clearly established law upon rehearing en banc, but under Supreme Court precedent Marshal Dillard had no such authority to ignore clearly established law. Even if the post2002 en banc decisions in Powell and Bull were relevant in determining clearly established law in 2002, which they are not, those holdings are limited to situations in which arrestees are intermingled with the general jail population and present institutional security concerns, and thus are distinguishable from the Constitutional right at issue here.
As troubling as the majority’s low opinion is of what “a reasonably competent public official” ought to know of the law under Harlow and its progeny, more troubling are the implications of the majority opinion for the protection of Constitutional rights. Applying the analysis established by the Supreme Court for determining when a public official may assert qualified immunity has consequences generally, including for peaceful protesters who come to the Nation’s Capital to exercise their First Amendment rights, as well as for any person arrested for non-violent minor offense not usually associated with weapons or contraband. Because Constitutional rights are at risk, the Supreme Court has required that the focus of “a reasonably competent public official” be on the law as it was clearly established at the time of his conduct and not on his subjective hope that the then-settled legal consensus may change. The Supreme Court aimed to protect Constitutional rights by limiting the availability of qualified immunity to those officials who learn the law as it stands before they act and then act in accordance with that law, not those who apply their subjective views instead. Otherwise, although public officials

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will not obviously be excused from “outrageous conduct obviously . . . unconstitutional,” Redding, 129 S. Ct. at 2643, they may, the Supreme Court foresaw, be excused from liability for unconstitutional “action less than outrageous,” id., as where a court finds “the law” anew prior to the conclusion of a plaintiff’s litigation. The majority’s approach means there are no objective limits to the scope of qualified immunity because a court may one day hold that the settled consensus of persuasive authority misapprehended a Supreme Court opinion on the requirements of the Constitution. Although the analytical approach that “the law” is there to be found may have jurisprudential validity in some contexts, see Maj. Op. at 10-11 (citing 1 WILLIAM BLACKSTONE, COMMENTARIES *70–71), but see Sosa v. Alvarez-Machain, 542 U.S. 692, 725 (2004) (acknowledging that “there is a general understanding that the law is not so much found or discovered as it is either made or created”) (citing Black and White Taxicab & Transfer Co. v. Brown and Yellow Taxicab & Transfer Co., 276 U.S. 518, 533 (1928) (Holmes, J., dissenting)), it is inapposite under Supreme Court precedent on qualified immunity.
Accordingly, I respectfully dissent.

 
 Bame v. Dillard, Not Reported in F.3d (2007)

2007 WL 1760490 Only the Westlaw citation is currently available.
United States Court of Appeals, District of Columbia Circuit.
Paul BAME, et al., Appellees v.
Todd W. DILLARD, In his official capacity (Former United States Marshal for the District of
Columbia), Appellant John F. Clark, In his official capacity as Acting Director, United States Marshal’s Service, et al.,
Appellees.
No. 07-5007. | June 11, 2007.
Attorneys and Law Firms
Zachary Jay Wolfe, People’s Law Resource Center, Washington, DC, Lynn E. Cunningham, Law Office of Lynn E. Cunningham, Dubois, WY, for Appellees.

W. Mark Nebeker, Assistant U.S. Attorney, R. Craig Lawrence, Assistant U.S. Attorney, U.S. Attorney’s Office, Washington, DC, for Appellant.
Opinion
ORDER
*1 Upon consideration of appellants’ motion to dismiss appeal, it is
ORDERED that the motion be granted, and this case is hereby dismissed.
The Clerk is directed to transmit forthwith to the District Court a certified copy of this order in lieu of formal mandate.
	  

1