United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 13, 2013 Decided November 15, 2013

No. 11-5115

DIANNA JOHNSON, ET AL.,

APPELLEES

RUBBIYA MUHAMMED, ET AL.,

APPELLANTS

v.

GOVERNMENT OF THE DISTRICT OF COLUMBIA AND TODD 

DILLARD, INDIVIDUALLY AND OFFICIALLY, UNITED STATES 

MARSHAL, D.C. SUPERIOR COURT,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:02-cv-02364)

William Charles Cole Claiborne III argued the cause for 

appellants. With him on the briefs were Barrett S. Litt and Paul 

J. Estuar. Lynn E. Cunningham entered an appearance.

Robin M. Meriweather, Assistant U.S. Attorney, argued the 

cause for appellee Todd Dillard. With her on the brief were 

Ronald C. Machen, Jr., U.S. Attorney, and R. Craig Lawrence

and W. Mark Nebeker, Assistant U.S. Attorneys.
2

Stacy L. Anderson, Assistant Attorney General, Office of the 

Attorney General for the District of Columbia, argued the cause 

for appellee District of Columbia. With her on the brief were 

Irvin B. Nathan, Attorney General, Todd S. Kim, Solicitor 

General, and Donna M. Murasky, Deputy Solicitor General. 

Louis A. Kleiman entered an appearance.

Before: ROGERS, TATEL, and GRIFFITH, Circuit Judges.

Opinion for the Court filed by Circuit Judge TATEL.

Opinion concurring in part and concurring in the judgment 

filed by Circuit Judge ROGERS.

TATEL, Circuit Judge: Concerned that contraband poses 

significant dangers to inmates and employees, many penal

institutionsstrip search incoming detainees. The appropriateness 

of these invasive procedures doubtless looks different from the 

perspective of detainees such as Appellants—women forced to 

endure strip searches while awaiting presentment hearings at the 

District of Columbia Superior Court. Alleging that such searches 

violate the Fourth Amendment and, where men are not similarly 

strip searched, the Fifth Amendment’s equal protection 

guarantee, these women filed this class action against the 

District of Columbia and the former United States Marshal for 

the Superior Court who administered the Superior Court 

cellblock. Because men and women at the cellblock are now 

strip searched only upon individualized reasonable suspicion, we 

have no occasion to consider whether the policies under which

class members were strip searched may continue. Rather, the 

only question in this case is whether class members can recover 

damages from the District or from the former Superior Court

Marshal. The district court granted summary judgment to the 

District, concluding that because the Superior Court Marshal in 
3

charge of the cellblock was at all times a federal official acting 

under color of federal law, the city had no authority to prevent 

the strip searches. The district court also granted summary 

judgment to the Superior Court Marshal, finding him entitled to 

qualified immunity. We affirm both rulings. 

I.

Under the Anti-Drug Abuse Act of 1988, Pub. L. No. 100-

690, tit. VII, § 7608(a)(1), 102 Stat. 4181, 4512–15 (1988) 

(codified at 28 U.S.C. §§ 561–569), two United States Marshals 

serve the District of Columbia. The first, the U.S. Marshal for 

the District of Columbia, serves the U.S. District Court and this 

Court. 28 U.S.C. § 566(b). The second, the U.S. Marshal for the 

District of Columbia Superior Court, serves that court only. 28 

U.S.C. § 561(c). During the time of the events at issue in this 

case, Appellee, Todd Dillard,served as Superior Court Marshal.

Sometime in the mid- to late-1990s, Dillard, concerned that

detainees were bringing weapons, drugs, and other contraband 

into the cellblock, began requiring all incoming detainees to 

undergo a three-step search. Detainees first passed through metal 

detectors; they were then patted down by deputy marshals; and,

finally, they were required to remove their clothing, squat, and 

cough to dislodge any hidden contraband. The parties refer to 

these “drop, squat, and cough” searches as strip searches. Given 

that “[t]he evidence of the non-movant is to be believed, and all 

justifiable inferences are to be drawn in his favor,” Anderson v. 

Liberty Lobby, Inc., 477 U.S. 242, 255 (1986), we infer from the 

evidence presented that despite Dillard’s facially gender-neutral 

policy, deputy marshals in fact subjected male detainees to strip 

searches only upon individualized reasonable suspicion. By 

contrast, all women were forced to drop, squat, and cough. This

included female pre-presentment arrestees charged with nonviolent, non-drug offenses. After completing the three-step 
4

search process, female pre-presentment arrestees proceeded to 

interview rooms outside presentment courtrooms. Roughly 

eighty percent of female arrestees were released following these 

hearings.

In 2002, a class of women detained and strip searched at the 

Superior Court cellblock filed this suit seeking damages and 

injunctive relief. After the United States Marshals Service halted

strip searches without individualized reasonable suspicion, class 

members abandoned their claims for injunctive relief and filed 

an amended complaint in which they sought only monetary relief 

from the District of Columbia and Dillard, whom they sued in 

his personal and professional capacities. The District and Dillard 

separately moved to dismiss the complaint for failing to state 

any claims upon which relief could be granted. The district court 

denied both motions and certified two classes: a Fourth 

Amendment Class and a Fifth Amendment Class. The Fifth 

Amendment Class includes all female pre-presentment arrestees 

held at the Superior Court cellblock between December 2, 1999 

and April 25, 2003 and subjected to strip searches “under similar 

circumstances for which men arrestees were not.” See Johnson 

v. District of Columbia, 584 F. Supp. 2d 83, 86 (D.D.C. 2008).

The Fourth Amendment Class includes all female prepresentment arrestees who, during the same time period, were 

strip searched without individualized reasonable suspicion or 

probable cause and who were arrested for non-drug, non-violent 

offenses. See id. 

Following class certification, the district court entered 

summary judgment in favor of the District. Believing that the 

Superior Court Marshal is a federal official who acted at all 

times under color of federal law, and that the District therefore 

had no choice but to turn pre-presentment arrestees over to the 
5

Marshal, the court concluded that the District could not be held 

liable for any unconstitutional acts of the Marshal. Id. at 90–93.

After further discovery, the district court orally granted 

Dillard summary judgment on all claims against him in his 

professional capacity, finding that his status as a federal official 

left him beyond the reach of 42 U.S.C. § 1983. See Johnson v. 

District of Columbia, 780 F. Supp. 2d 62, 68 (D.D.C. 2011)

(describing this holding). Several months later, the district court, 

finding Dillard entitled to qualified immunity, granted him

summary judgment on all claims against him in his personal 

capacity. As for the claims of Fourth Amendment Class 

members, the district court, relying on our recent decision in 

Bame v. Dillard, 637 F.3d 380 (D.C. Cir. 2011), where we 

rejected similar Fourth Amendment claims brought by male 

detainees against the very same Marshal Dillard, see id. at 382, 

concluded that any Fourth Amendment rights Dillard might have 

violated were insufficiently clearly established at the time of the 

violation. Johnson, 780 F. Supp. 2d at 73–75. As for the claims 

of Fifth Amendment Class members, the court, relying on 

Ashcroft v. Iqbal, 556 U.S. 662 (2009), found no Equal 

Protection violation because nothing in the record indicated that 

Dillard intended to treat women differently from men. Johnson, 

at 780 F. Supp. 2d at 79–81. 

On appeal, class members press their claims against the 

District and Dillard, but only in his personal capacity. We 

review the district court’s grants of summary judgment de novo, 

viewing the evidence in the light most favorable to class 

members. See, e.g., Holcomb v. Powell, 433 F.3d 889, 895 (D.C. 

Cir. 2006). We first consider whether class members may hold 

the District liable for Dillard’s conduct. Then, taking the Fourth 

and Fifth Amendment claims separately, we consider whether 

Dillard is entitled to qualified immunity.
6

II.

Members of both the Fourth and Fifth Amendment Classes 

seek to hold the District of Columbia liable under 42 U.S.C. § 

1983 for the Superior Court Marshal’s conduct. As the Supreme 

Court explained in Monell v. Department of Social Services, 436 

U.S. 658 (1978), municipalities can be held liable under section 

1983 only “when execution of a government’s policy or custom, 

whether made by its lawmakers or by those whose edicts or acts 

may fairly be said to represent official policy, inflicts the injury.” 

Id. at 694. Conceding that no express District policy gave rise to 

their injuries, class members offer two theories—the “organic 

theory” and the “entrustment theory”—to explain how the 

District might nonetheless be liable under section 1983 for 

Dillard’s conduct. 

Organic Theory

According to this theory, the Superior Court Marshal’s 

Office is “part of the organic government of the District of 

Columbia just as much as the Mayor, City Council and Superior 

Court.” Appellants’ Br. 44 (emphasis omitted). Claiming that

the Superior Court is best understood as a state court, not a 

federal court, class members argue that the Superior Court 

Marshal derives his authority from “the inherent powers of the 

Superior Court.” Appellants’ Br. 50. Insofar as the Superior 

Court Marshal “handles pre-presentment arrestees . . . as the 

policy maker for the District, by delegation from the 

policymaker, or pursuant to a widespread custom or practice in 

which the District of Columbia acquiesced,” Appellants’ Br. 44, 

class members urge us to find the District liable under section 

1983 for any unconstitutional acts of the Marshal. 

But we agree with the district court that the Superior Court 

Marshal is not a District official. Rather, the Superior Court 
7

Marshal “logically and expressly derives” his authority from 

federal law, specifically the Anti-Drug Abuse Act of 1988. See

Johnson, 584 F. Supp. 2d at 90. Pursuant to that Act, “[t]he 

President shall appoint, by and with the advice and consent of 

the Senate, a United States marshal for each judicial district of 

the United States and for the Superior Court of the District of 

Columbia.” 28 U.S.C. § 561(c). Like all other U.S. Marshals, the 

Superior Court Marshal “shall be an official of the Service and 

shall serve under the direction of the Director,” id., who “shall 

supervise and direct the United States Marshals Service in the 

performance of its duties.” 28 U.S.C. § 561(g). Each U.S. 

Marshal serves a four year term unless he resigns or is removed 

by the President. 28 U.S.C. § 561(d). Thus, Dillard, as Superior 

Court Marshal, was appointed and confirmed through a federal 

process, served as part of a federal agency under the direction of 

a federal official, and at all times could have been removed by 

the President. Under these circumstances, Dillard was hardly as 

much “part of the organic government of the District of 

Columbia . . . as the Mayor.” Appellants’ Br. 44 (emphasis 

omitted).

Acknowledging that the Superior Court Marshal qualifies as 

a federal official for purposes of appointment and removal, class 

members nonetheless argue that he derives no authority from 

federal law. But why would Congress create a U.S. Marshal’s 

office for a particular court and yet deny the holder of that office 

any federal authority? Class members have no answer, nor do

we. Instead, class members find this bizarre result implicit in 

two provisions of the Anti-Drug Abuse Act. They first point to 

section 566(a), which outlines the “primary role and mission of 

the United States Marshals Service.” 28 U.S.C. § 566(a). Under 

this section, U.S. Marshals “provide for the security and . . . 

obey, execute, and enforce all orders of the United States 

District Courts, the United States Courts of Appeals, the Court 
8

of International Trade, and the United States Tax Court, as 

provided by law.” Id. As class members emphasize, this list does 

not include the Superior Court. Second, class members seize on 

the word “Federal” in section 566(e)(1), which authorizes the 

United States Marshals Service “to provide for the personal 

protection of Federal jurists, court officers, witnesses, and other 

threatened persons.” 28 U.S.C. § 566(e)(1). Class members 

argue that inclusion of the word “Federal” makes the entire 

subsection inapplicable to the Superior Court because, according 

to them, the Superior Court is equivalent to a state court. From 

these two provisions, class members conclude, “[T]he Act 

addresses the USMS’s role regarding the federal courts (as 

opposed to addressing at all the local D.C. Courts).” Appellants’ 

Br. 48. 

Class members’ reliance on these provisions is misplaced. 

For one thing, section 566(a) lays out the “primary”—not 

“exclusive”—“role and mission of the United States Marshals 

Service.” Nothing in section 566(a) suggests that Congress 

intended to deprive the Superior Court Marshal of all federal 

authority within the court Congress designated that Marshal to 

serve. Moreover, given the dual federal/state status of Superior 

Court judges, Congress would have had to have used more 

specific language than “Federal jurist” to exclude them from 

section 566(e)(1)’s authorizations, especially given Congress’s 

decision to create the office of Superior Court Marshal. See 

United States v. Stewart, 104 F.3d 1377, 1391 (D.C. Cir. 1997) 

(noting that D.C. Superior Court judges are “Article I . . . judges, 

whom Congress intended to be analogous to state court judges” 

and holding that a federal statute “authorized [them] to act as

federal committing magistrates”). In any event, the statutory 

scheme gives the District no power to exercise authority over or 

delegate authority to the Superior Court Marshal. Instead, the 

statute clearly saysthat the Superior Court Marshal serves at the 
9

“direction” of the United States Marshals Service. See 28 U.S.C. 

§ 561(c). Thus, any authority Dillard exercised as Superior 

Court Marshal, whether delegated by the United States Marshals 

Service or provided directly by statute, was federal in nature. 

Because Dillard, as Superior Court Marshal, was at all times 

a federal official acting under color of federal law, the organic 

theory provides no basis for finding the District liable under 

section 1983. 

Entrustment Theory

Under this theory, the District exhibited deliberate 

indifference to Dillard’s unconstitutional conduct by continuing 

to send pre-presentment arrestees to the Superior Court cellblock 

despite knowing they would be strip searched there. Holding a 

municipality liable for its deliberate indifference requires more 

than “a showing of simple or even heightened negligence.” 

Board of County Commissioners v. Brown, 520 U.S. 397, 407 

(1997); see also City of Canton v. Harris, 489 U.S. 378, 390 

(1989) (requiring that plaintiffs show that the municipality’s 

policy was “so likely to result in the violation of constitutional 

rights,” and the need to change that policy “so obvious,” that 

policymakers “can reasonably be said to have been deliberately 

indifferent to the need”). To prevail on this theory, class 

members would have to show at least that the District had actual 

or constructive notice of unconstitutional strip search practices, 

as well as discretion to stop sending pre-presentment arrestees to 

the Superior Court Marshal. See Warren v. District of Columbia, 

353 F.3d 36, 36–39 (D.C. Cir. 2004) (“[F]aced with actual or 

constructive knowledge that its agents will probably violate 

constitutional rights, the city may not adopt a policy of 

inaction.”). 
10

We agree with the district court that even assuming that the 

District had notice of the strip search practices and that those 

practices were unconstitutional, the District lacked the discretion 

necessary for class members to prevail. Given that Dillard was at 

all times acting under color of federal law, see supra 6–9, the 

District had no authority to prevent him from conducting strip 

searches of arrestees upon their arrival at the Superior Court. 

Relying on two circuit court decisions, one by this Court and one 

by the Sixth Circuit, see Warren, 353 F.3d 36; Deaton v. 

Montgomery County, 989 F.2d 885 (6th Cir. 1993), for the 

proposition that “[i]t does not matter if the transferor has no 

control over the facility in which it places its prisoners,” 

Appellants’ Br. 34, class members believe they can prevail even 

if Dillard was at all times a federal official acting under color of 

federal law. In each of the cited cases, however, the municipality

had contracted to send its prisoners to a penal facility; even 

though the municipality exercised no direct control over policies 

and practices at the facility, it retained power to cancel the 

contract in the event of constitutional violations. See Warren, 

353 F.3d at 37; Deaton, 989 F.2d at 885. Here, by contrast, 

nothing in the record suggests that the District could have held 

presentment hearings somewhere other than the Superior Court.

And although class members insist that the District had statutory 

authority to bypass the Superior Court Marshal and deliver prepresentment arrestees directly to Superior Court judges, the

statutory provisions class members rely on are ambiguous at 

best. Thus, the District’s failure to embrace class members’ 

statutory interpretation hardly demonstrates “deliberate 

indifference to the rights” of arrestees. See Canton, 489 U.S. at 

388. Class members also claim that the District would lack 

authority to issue citations or release arrestees on bond if it had 

to deliver all arrestees to the Superior Court Marshal. But the 

Marshal exercises federal authority over persons actually 

delivered to the Superior Court for presentment, not over 
11

everyone the Metropolitan Police Department detains. And 

while the District might issue citations for minor offenses such 

as traffic violations, arrestees have a right to a presentment 

hearing. See D.C. SUPERIOR CT. R. CRIM. P. 5(a); see also 

County of Riverside v. McLaughlin, 500 U.S. 44, 53 (1991)

(“[W]arrantless arrests are permitted but persons arrested 

without a warrant must promptly be brought before a neutral 

magistrate for a judicial determination of probable cause.” 

(citing Gerstein v. Pugh, 420 U.S. 103, 114 (1975))).

Because neither the organic nor the entrustment theory 

transforms the Superior Court Marshal into a District 

policymaker for purposes of section 1983, the District cannot be 

held liable for Dillard’s conduct. We thus turn to the question of

Dillard’s liability.

III.

Relying on Bivens v. Six Unknown Named Agents, 403 U.S. 

388 (1971), Fourth and Fifth Amendment Class members bring 

constitutional tort claims against Dillard in his personal capacity. 

In response, Dillard argues that he is entitled to qualified 

immunity. While carrying out their official duties, federal 

officials enjoy qualified immunity from damages suits in order 

to “shield them from undue interference with their duties and 

from potentially disabling threats of liability.” Harlow v. 

Fitzgerald, 457 U.S. 800, 807 (1982). To overcome a claim of 

qualified immunity, plaintiffs must show both that an official 

“violated a constitutional right” and that “the right was clearly 

established” at the time of the violation. Saucier v. Katz, 533 

U.S. 194, 200–01 (2001). The Supreme Court has made clear

that courts may address the two stages of the qualified immunity 

analysis in either order. See Pearson v. Callahan, 555 U.S. 223, 

236 (2009) (“The judges of the district courts and the courts of 

appeals should be permitted to exercise their sound discretion in 
12

deciding which of the two prongs of the qualified immunity 

analysis should be addressed first in light of the circumstances in 

the particular case at hand.”). Grateful for that flexibility, we 

address the claims of the two classes in turn.

The Fourth Amendment Class

Fourth Amendment Class members urge us to find that “the 

Fourth Amendment prohibits blanket strip searches of 

[detainees] arrested on minor charges,” at least where no 

detainees were held in the general population and “there [is] no 

significant contraband problem.” Appellants’ Br. 17, 26–28.

Like the district court, however, we have no need to reach the 

merits of this contested constitutional question in order to find 

Dillard entitled to qualified immunity. Under our decision in 

Bame v. Dillard, 637 F.3d 380, 384 (D.C. Cir. 2011), any Fourth 

Amendment right Dillard might have violated was insufficiently 

clearly established at the time. See Pearson, 555 U.S. at 237 

(approving of addressing only the second stage of the qualified

immunity analysis where “it is plain that a constitutional right is 

not clearly established but far from obvious whether in fact there 

is such a right”). 

In Bame, this Court, addressing only the “clearly 

established” stage of the qualified immunity analysis, found 

Dillard entitled to qualified immunity for Fourth Amendment 

claims brought by male plaintiffs—claims otherwise virtually 

indistinguishable from those brought by Fourth Amendment 

Class membersin this case. Like class members, Bame plaintiffs 

were arrested for non-drug, non-violent offenses, held 

temporarily at “various police holding facilities,” brought to the 

Superior Court “to await disposition of the charges against 

them,” “strip searched upon arrival” at the Superior Court 

cellblock, placed together in holding cells, and released directly 

from the Superior Court cellblock without spending any time in 
13

general jail populations. Bame, 637 F.3d at 382–83. The strip 

searches at issue in Bame occurred in September 2002, near the 

end of the Fourth Amendment Class period. Id. at 383.

According to Bame plaintiffs, by the time Dillard had 

implemented the challenged policies, the circuits had reached a 

“consensus” that policiessimilar to Dillard’s violated the Fourth 

Amendment. See Bame, 637 F.3d at 385. But in Bell v. Wolfish, 

441 U.S. 520 (1979), the Supreme Court rejected a Fourth 

Amendment challenge to a penal strip search policy and 

instructed courts evaluating such challenges to “consider the 

scope of the particular intrusion, the manner in which it is 

conducted, the justification for initiating it, and the place in 

which it is conducted.” Id. at 559. In Bame, we held that Dillard,

balancing these factors, could reasonably have concluded that

his strip search policy was constitutional. Bame, 637 F.3d at 386 

(“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 United States Marshals Service policy statements].”).

Although Bame plaintiffs, like class members here, emphasized

that they were charged with minor non-drug, non-violent 

offenses, we noted that “[t]he 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.” 

Id. at 387 (internal quotation marks omitted). Although Bame 

plaintiffs, like class members here, emphasized the short 

duration of their stay at the Superior Court cellblock, we

responded that “[c]ontrary to the plaintiffs’ contention, nothing 

whatsoever in Bell suggests its holding is limited to overnight 

detention facilities.” Id. Although Bame plaintiffs, like class 

members here, insisted that they never came into contact with 

detainees housed in general jail populations, we emphasized that 
14

“Bell [nowhere] mention[ed], let alone rel[ied] upon, 

[intermingling with other detainees] 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.” 

Id. And finally, although Bame plaintiffs, like class members

here, challenged the sufficiency of Dillard’s contraband 

justification, we concluded that “the record here substantiates 

Dillard’s point that the Superior Court had a persistent problem 

with contraband being smuggled into the cellblock, the very 

reason for strip searches.” Id.

Fourth Amendment Class members attempt to distinguish 

Bame in three ways. First, they point to a consent agreement—

the so-called Morgan Order—in which the District promised 

“not [to] conduct strip or squat searches of female police cases 

housed at the District of Columbia Detention Facility in the 

absence of a reasonable suspicion.” See Morgan v. Barry, 596 F. 

Supp. 897, 898 (D.D.C. 1984) (explaining the agreement)

(internal quotation marks omitted). According to class members,

this agreement, which protects only female arrestees and thus 

was not at issue in Bame, put Dillard on notice that strip 

searching class members would violate their Fourth Amendment 

rights. In the Morgan Order, however, the District never 

concedes that any particular strip search policies violate the 

Fourth Amendment. Moreover, the Morgan Order binds only 

the District and its agents at the District of Columbia Detention 

Facility, not Dillard, a federal official in charge of the Superior 

Court cellblock. 

Second, Fourth Amendment Class members claim that in 

Bame we addressed the constitutionality of strip searches 

without “individualized, reasonable suspicion” whereas they 

focus on “the right of arrestees, not entering general population, 
15

to be free from strip searches prior to presentment to the court.” 

Appellants’ Br. 70. Contrary to class members’ assertion, 

however, in Bame we expressly rejected the notion that Bell

limited penal strip searches to overnight, general population 

facilities. See Bame, 637 F.3d at 387.

Third, Fourth Amendment Class members argue that “any 

contraband problem that may have existed in the Superior Court 

cellblock had evaporated by 1999 or 2000,” Appellants’ Br. 29, 

and that the Superior Court Marshal’s failure to strip search all 

men belies the asserted effectiveness of strip searches. But in 

Bame we evaluated similar evidence of contraband and found 

that the Superior Court suffered from a “persistent problem with 

contraband” as late as 2002. 637 F.3d at 387. In any event, as the 

Supreme Court observed in Bell, a dearth of recovered 

contraband “may be more a testament to the effectiveness of this 

search technique as a deterrent.” Bell, 441 U.S. at 559. And even 

if deputy marshals did not strip search all men, that hardly 

compels the conclusion that Dillard understood strip searches to 

be generally ineffective. 

Thus, like the district court, we see no daylight between the 

claims we rejected in Bame and the ones Fourth Amendment 

Class members press here. See Johnson, 780 F. Supp. 2d at 74–

75 (“[T]he claims addressed in Bame and the instant case cannot 

be distinguished in any meaningful way.”). Although class 

members obviously disagree with Bame, that decision is binding 

on us. As a result, Dillard is entitled to qualified immunity 

because the Fourth Amendment right he is accused of violating 

was not clearly established at the time of any violation.

The Fifth Amendment Class

Fifth Amendment Class members maintain that the strip 

search gender disparity violated the Fifth Amendment’s equal 
16

protection guarantee. We resolve these claims, unlike the claims

of the Fourth Amendment class, at the first stage of the qualified 

immunity analysis by examining whether Dillard violated class 

members’ Fifth Amendment rights. 

The parties agree that Ashcroft v. Iqbal, 556 U.S. 662 

(2009), controls this issue. In Iqbal, the Supreme Court 

addressed “[t]he factors necessary to establish a Bivens violation 

. . . [w]here the claim is invidious discrimination in 

contravention of the . . . Fifth Amendment[].” Id. at 676. 

Because “purposeful discrimination requires more than ‘intent as 

volition or intent as awareness of consequences,’” id. (quoting 

Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 

256, 279 (1979)), supervisors face no liability for mere 

“knowledge and acquiescence in their subordinates’ use of 

discriminatory criteria,” id. at 677 (internal quotation marks 

omitted). Instead, under Iqbal, plaintiffs must show that 

supervisors acted with discriminatory purpose. Id. (“[P]urpose 

rather than knowledge is required . . . .”). “[T]he plaintiff must 

plausibly plead and eventually prove not only that the official’s 

subordinates violated the Constitution, but that the official by 

virtue of his own conduct and state of mind did so as well.” 

Dodds v. Richardson, 614 F.3d 1185, 1198 (10th Cir. 2010).

Acknowledging that they “must prove Dillard intended to 

discriminate against women arrestees,” Fifth Amendment Class 

members argue that Dillard “intended a policy, formal or 

informal, of women-only strip searches.” Appellants’ Br. 52. For 

his part, Dillard insists that his policy throughout the class 

period required “every prisoner”—both male and female—to go 

through the strip search process upon arrival at the Superior 

Court cellblock. See, e.g., Dillard Bame Deposition 89:6–98:3. 

Although class members point to some evidence from which we 

might infer that Dillard knew deputies were implementing his 
17

gender neutral policy in a gender imbalanced manner, plenty of 

other evidence suggests that Dillard was largely missing in 

action throughout the class period. But even assuming class 

members could show that Dillard knew what was going on at the 

cellblock, they have pointed to no evidence from which we 

could infer that Dillard himself intended to treat women 

differently from men. For instance, class members cite a former 

deputy marshal’s testimony that the practice in the cellblock was 

to strip search all female detainees but not all males because of 

certain “differences in the anatomy.” Shealey Deposition 158:8–

162:22. But that same former deputy went on to testify that any 

disparate treatment did not reflect Dillard’s policy: 

“[Supervisors] put [no] emphasis on females. They basically 

[made] sure that everybody was thoroughly searched coming 

into that cell block, and that we had policies and procedures in 

place to conduct those searches to make sure that no contraband 

came into those cell blocks.” Shealey Deposition 164:7–13. This 

is hardly an isolated example. Indeed, class members cite no 

testimony by any subordinate indicating that the gender disparity 

resulted from Dillard’s instruction or intention. 

Class members also claim that the United States Marshals 

Service admitted in interrogatory responses in two other cases 

that despite Dillard’s assertions “the ‘more customized’ policy 

was to stop strip searching males and to continue strip searching 

females.” Appellants’ Br. 60. But these responses, both written

by the same deputy marshal who testified that supervisors “put 

[no] emphasis on females,” describe the “practice” among 

deputies at the cellblock, not Dillard’s policies. Helton

Interrogatory Response 4; Clifton Interrogatory Response 5. 

In a final effort to demonstrate discriminatory purpose, class 

members ask us to grant them an adverse inference from missing 

evidence. Specifically, they claim that although Dillard prepared
18

a written policy statement during the class period laying out 

Superior Court operating procedures, he failed to produce a copy 

during discovery. “Because defendant never acknowledged or 

produced Dillard’s written search policy,” class members assert, 

“plaintiffs are entitled to an adverse inference that the policy was 

to strip search all female prisoners but not males.” Appellants’ 

Br. 58. Dillard, however, has not only consistently denied the 

existence of any undisclosed policy statement but has also 

maintained that he left behind all official documents at the end 

of his term as Superior Court Marshal because “they were 

government property.” Dillard Br. 65. Even assuming an 

undisclosed policy statement once existed, an adverse inference 

from missing evidence is appropriate only “if it is peculiarly 

within the power of one party to produce the evidence . . . . The 

party complaining of the missing evidence bears the burden of 

demonstrating that it is peculiarly in the opposing party’s 

control.” Czekalski v. LaHood, 589 F.3d 449, 455 (D.C. Cir. 

2009) (internal quotation marks omitted). Since class members 

nowhere dispute Dillard’s explanation for why he left behind all 

official documents, they have failed to show that the policy 

statement was ever “peculiarly within [Dillard’s] power . . . to 

produce” or “peculiarly in [Dillard’s] control.” Id.

We thus agree with the district court that “there is no 

circumstantial or direct evidence that Marshal Dillard

purposefully directed that women and men be searched 

differently at the Superior Court cellblock.” Johnson, 780 F. 

Supp. 2d at 81. Under Iqbal, then, Dillard is entitled to qualified

immunity because class members have failed to show that he 

violated their Fifth Amendment rights. 
19

IV.

For the foregoing reasons, we affirm.

So ordered.
ROGERS, Circuit Judge, concurring in part and concurring

in the judgment. I write principally because this court, as in ten

other circuits, should “clearly establish[],” Harlow v. Fitzgerald,

457 U.S. 800, 818–19 (1982), that indiscriminate strip searching

of individuals awaiting presentment on non-violent, non-drug

offenses who are not held in the general population is

unconstitutional under the Fourth Amendment to the United

States Constitution in the absence of reasonable suspicion an

individual possesses contraband or weapons. See Bame v.

Dillard, 637 F.3d 380, 388 (D.C. Cir. 2011) (Rogers, J.,

dissenting).

I. 

In the absence of en banc review, Bame, 637 F.3d 380, is

the law of the circuit, see LaShawn A. v. Barry, 87 F.3d 1389,

1395 (D.C. Cir. 1996) (en banc). In Bame, the court applied the

doctrine of constitutional avoidance and did not decide whether

a Fourth Amendment violation occurred. See Bame, 637 F.3d

at 384 (citing Pearson v. Callahan, 555 U.S. 223 (2009)); cf.

Op. at 12. Since Bame was decided the Supreme Court in

Camreta v. Greene, ––– U.S. –––, 131 S. Ct. 2020 (2011), has

underscored the undesirability of the “flexibility,” Op. at 12,

afforded to courts under Pearson v. Callahan to avoid deciding

whether a constitutional violation has occurred where the

defendant is entitled to qualified immunity. Not deciding the

constitutional question “threatens to leave standards of official

conduct permanently in limbo.” Camreta, 131 S. Ct. at 2031. 

By proceeding directly to the immunity question, not only do

“[c]ourts fail to clarify uncertain questions, fail to address novel

claims, fail to give guidance to officials about how to comply

with legal requirements,” id., but the failure to decide

constitutional questions “may frustrate ‘the development of

constitutional precedent’ and the promotion of law-abiding

behavior,” id. (quoting Pearson, 555 U.S. at 237). 
2

Also since Bame, six Justices of the Supreme Court have

expressed unease with the type of indiscriminate strip searching

engaged in by the Superior Court Marshal’s Office that is

challenged here and was challenged in Bame. See Florence v.

Bd. of Chosen Freeholders of Cnty. of Burlington, ––– U.S. –––, 

132 S. Ct. 1510, 1523 (2012) (Roberts, CJ., concurring); id. at

1524 (Alito, J., concurring); id. at 1525 (Breyer, J., joined by

Ginsburg, Sotomayor, and Kagan, JJ., dissenting). The Supreme

Court’s expression of unease is not new, appearing even in the

context of post-arraignment defendants held in the general

prison population. See Bell v. Wolfish, 441 U.S. 520, 558 (1979)

(“[T]his practice instinctively gives us the most pause.”). 

Nearly every other circuit court of appeals (and the District

of Columbia’s highest court, see United States v. Scott, 987 A.2d

1180, 1196–97 (D.C. 2010)) has understood that the humiliating

and essentially non-productive practice of strip searching prearraignment arrestees not held in the general population is an

unreasonable search under the Fourth Amendment in the

absence of reasonable suspicion. See Bame, 637 F.3d at 391–92,

395 (Rogers, J., dissenting) (citing cases from the First, Second,

Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, and Eleventh

Circuit Courts of Appeals); see Powell v. Barrett, 541 F.3d

1298, 1300–02 (11th Cir. 2008) (en banc); Bull v. City and Cnty.

of San Francisco, 595 F.3d 964, 980–81 (9th Cir. 2010) (en

banc). The Third Circuit has yet to address the issue, rejecting

only a Fourth Amendment challenge to blanket strip searches

upon arrestees admission to the general jail population. See

Florence v. Bd. of Chosen Freeholders of Cnty. of Burlington,

621 F.3d 296, 298–99, 311 (3d Cir. 2010). Evidence before the

courts and in the instant case confirms that modern technology

and law enforcement experience have shown that indiscriminate

strip searching of non-violent, non-drug pre-arraignment

arrestees after the use of metal detectors and patdowns to locate

contraband rarely yields additional security benefits. See, e.g.,
3

Roberts v. State of R.I., 239 F.3d 107, 112 (1st Cir. 2001); see id.

(citing cf. Mary Beth G. v. City of Chicago, 723 F.3d 1263,

1272–73 (7th Cir. 1983)); Appellants’ Ex. 410 (compiling

incident reports). Contrary court findings involve the prison

environment where smuggling of contraband “is all too common

an occurrence” and deference is due to the policy judgments of

prison administrators. Bell v. Wolfish, 441 U.S. at 559; see also

Florence, 621 F.3d at 310. 

Members of the Fourth Amendment class here were not

being held in the general population with post-arraignment

arrestees and strip searches in their circumstances illustrate one

aspect of the Justices’ unease in Florence, 132 S. Ct. at 1523,

1524, 1525. Applying the canon of constitutional avoidance in

this circuit is unwarranted, particularly in view of the recurring

court challenges to indiscriminate strip searching by the U.S.

Marshals Service in the Nation’s Capital, the frequent situs of

demonstrations as in Bame. See Helton v. United States, 191 F.

Supp. 2d 179 (D.D.C. 2002); Clifton v. United States, No. 02-

0578 (D.D.C. Mar. 26, 2002); see also Morgan v. Dist. of

Columbia, No. 81-1419 (D.D.C. July 22, 1981), applied in

Morgan v. Barry, 596 F. Supp. 897, 898–99 (D.D.C. 1984). The

United States advises that the U.S. Marshals Service has

abandoned the challenged strip searching policy and practice. 

See Appellee Dillard Br. 59 n.17; Op. at 2. This does not ensure

that the practice will not be revived, much less provide guidance

for new policies and practices, promote law-abiding behavior,

or justify the court in not “clearly establish[ing]” that the Fourth

Amendment rights of the appellant class were violated by the

Superior Court Marshal. Joining the ten other circuit courts of

appeals, I would hold that the indiscriminate strip searching of

the Fourth Amendment class in the absence of reasonable

suspicion violated the Fourth Amendment.
4

II.

Otherwise, I generally agree that appellants’ claims fail. 

A. The Superior Court Marshal is a federal official who

was acting under color of federal law, and the District of

Columbia cannot be held liable for the challenged actions of

Marshal Dillard. Op. at 9. 

Somewhat less persuasive is the District of Columbia’s

suggestion that it “had no choice,” Appellee D.C. Br. 41, not to

turn over to the Superior Court Marshal for presentment

individuals arrested by the Metropolitan Police Department,

regardless of whether the Marshal’s strip searching practices

violated the Fourth Amendment rights of non-violent, non-drug

pre-arraignment arrestees. The District of Columbia can sue as

well as be sued, see D.C. Code § 1-102, and can seek the aid of

the courts to protect individuals in its custody. Appellants point

to the District of Columbia’s obligation to ensure the

enforcement of the order in Morgan v. Barry, 596 F. Supp. 897,

898 (D.D.C. 1984), that barred its own officers from strip

searching female arrestees housed at the District of Columbia

Detention Facility in the absence of a “reasonable suspicion that

a weapon, contraband or evidence of a crime are concealed on

the person or in the clothing of the arrestee which the District [of

Columbia] or its agents reasonably believe can only be

discovered by a strip or squat search.” Cf. Washington v. United

States, 594 A.2d 1050, 1052 (D.C. 1991) (quoting MPD Gen.

Order 502.1, Processing Prisoners 3, § B(5) barring body cavity

searches of arrestees by police officers). The District of

Columbia did not seek such aid on behalf of the Fourth

Amendment class, but at the time there was neither an

outstanding order with respect to the Superior Court Marshal,

nor a decision by this court (or the D.C. Court of Appeals),

“clearly establish[ing]” that blanket strip searching of pre-
5

arraignment arrestees like the Fourth Amendment class is

unreasonable and a violation of the Fourth Amendment.

B. With regard to the constitutional challenges, because

Bame, 637 F.3d at 386, is the law of the circuit Marshal Dillard

is entitled to qualified immunity on the Fourth Amendment

claims. Op. at 12. Given appellants’ agreement that Ashcroft v.

Iqbal, 556 U.S. 662 (2009), is controlling at the summary

judgment stage of the proceedings, Op. at 16, the Fifth

Amendment claims fail for lack of evidence of a constitutional

violation. Op. at 18. 

In that regard, the court observes that Marshal Dillard was

“largely missing in action throughout the class period.” Op. at

16. Although Dillard agreed that there was no reason to treat

male and female arrestees differently, see Dillard Dep. 77:1–7,

on his watch his deputies indiscriminately strip searched only

women. Op. at 3. Summary judgment presents no occasion for

the court to weigh the evidence. See Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 255 (1986). A reasonable jury could

find that knowing acquiescence to continuing violations of a

plaintiff’s Equal Protection rights by one’s deputies amounts to

purposeful conduct and infer, in the absence of a legitimate noninvidious reason for treating women differently than men, a

defendant’s discriminatory purpose. Cf. Vill. of Arlington

Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266–67

(1977); cf. also Primas v. Dist. of Columbia, 719 F.3d 693,

697–98 (D.C. Cir. 2013); Evans v. Sebelius, 716 F.3d 617,

620–22 (D.C. Cir. 2013). Dillard repeatedly swore, however,

that he believed men and women were being strip searched in

the same manner, see Dillard Dep. 96:10–97:8, 99:8–101:12,

and the Fifth Amendment class fails to proffer evidence from

which a reasonable jury could find that he had a women-only

strip search policy or knew of the disparate treatment by his

deputies. Op. at 16–18. Absent evidence that Dillard either had
6

a blanket policy for strip searching only female arrestees, or

knew that his deputies were doing so indiscriminately and did

nothing to stop them, a discriminatory purpose by Dillard cannot

reasonably be inferred.