United States Court of Appeals

For the First Circuit

No. 02-1568

ANGELA SAVARD, ET AL.,

Plaintiffs, Appellants,

v.

STATE OF RHODE ISLAND, ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Mary M. Lisi, U.S. District Judge]

Before

 Selya, Circuit Judge,

Coffin and Bownes, Senior Circuit Judges.

Gregory A. Belzley with whom Frost Brown Todd LLC, Thomas W.

Kelly and the Law Offices of Thomas W. Kelly were on brief for

appellants.

Rebecca Tedford Partington, Deputy Chief, Civil Division, with

whom Sheldon Whitehouse, Attorney General, was on brief for

appellees.

February 11, 2003
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BOWNES, Senior Circuit Judge. Plaintiffs-appellants were

all arrested in Rhode Island for non-violent, non-drug related

minor offenses. After their arrest, the plaintiffs were taken to

a Rhode Island prison and subjected to unconstitutional strip and

visual body cavity searches. The plaintiffs brought suit against

the defendants-appellees, who include the State of Rhode Island and

numerous prison officials, pursuant to 42 U.S.C. § 1983 and various

state laws for damages sustained as a result of the illegal

searches. The district court granted the defendants' motion for

summary judgment on the ground that the defendants were entitled to

qualified immunity, and therefore shielded from lawsuits seeking

damages for their actions. We reverse.

I. BACKGROUND

The state of Rhode Island operates the Adult Correctional

Institution ("ACI"), which consists of seven separate prison

facilities. One of those facilities receives all males committed

to the custody of Rhode Island's Department of Corrections,

regardless of the nature of an arrestee's offense. This facility

houses not only pretrial arrestees, but also newly sentenced

inmates awaiting transport to other facilities, pretrial protective

custody detainees, and sentenced inmates under protective custody.

All of these individuals are at times commingled with each other,

except for those held in protective custody. Even then, inmates

held in protective custody use the same facilities as other
1A "strip search" is a visual inspection of an inmate's

naked body. A "visual body cavity search" is a strip search that

includes the visual inspection of an inmate's anal and genital

areas. See Blackburn v. Snow, 771 F.2d 556, 561 n.3 (1st Cir.

1985).

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detainees, but at different times. Females are processed through

a different ACI facility. At the female facility, arrestees are

commingled with either sentenced inmates or inmates awaiting trial.

At the times material hereto, Rhode Island maintained

written policies that required new arrestees admitted into ACI to

undergo strip searches and visual body cavity searches.1 These

searches included "examination of hair, arms, hands, ears, mouth,

nose; visual examination of groin and rectum; toes and soles of

feet." As part of the searches, males were required to "lift their

penises and testicles on the officer's command to provide a clear

view of the groin area." Both male and female detainees were

required "to bend over and spread the rectum to provide a clear

view of the area."

On April 20, 1999, Craig Roberts ("Roberts") was a

passenger in a car stopped by the police for expired registration

stickers. A check of police computers revealed that Roberts was

the subject of an "outstanding body attachment," a type of writ

issued by a magistrate in Rhode Island family court. The police

frisked Roberts, but found no weapons or contraband. Although

Roberts produced a carbon-copy of a family court order withdrawing
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the body attachment, the police arrested Roberts and took him to

ACI.

Upon arriving at ACI, Roberts was subjected to a strip

and visual body cavity search pursuant to the written policies

described above. No weapons or contraband were found. After the

search, Roberts was placed in a segregated cell. Later that day,

Roberts was subjected to another strip and visual body cavity

search in preparation for his transportation to the Garrahy

Judicial Complex. Again, no weapons or contraband were found.

After arriving at the complex, Roberts' carbon-copy of the order

withdrawing the body attachment was shown to a sheriff and Roberts

was released.

In 1999, Roberts brought a complaint in the district

court alleging that the strip and visual body cavity searches

required by Rhode Island's written policies violated his Fourth

Amendment right to be free from unreasonable searches. Upon crossmotions for summary judgment, the district court ruled that the

searches were unconstitutional and issued an order enjoining Rhode

Island from conducting searches in accordance with those written

policies. Roberts v. Rhode Island, 175 F. Supp.2d 176, 183 (D.R.I.

2000). On appeal, we affirmed the district court's ruling.

Roberts v. Rhode Island, 239 F.3d 107, 113 (1st Cir. 2001). 

In 2000, Roberts and other similarly situated individuals

brought a separate action in the district court against Rhode
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Island and various prison officials alleging that the searches

violated their constitutional rights and seeking damages under 42

U.S.C. § 1983, state tort law, and state statutory law. Like

Roberts, the new plaintiffs all claimed they were arrested for nonviolent, non-drug related minor offenses and subjected to strip and

visual body cavity searches at ACI prior to March 17, 2000. By way

of example, one of the new plaintiffs, George Barber, loaned his

car to his son in 1993 and the son received a traffic ticket that

was never paid. Six years later, Barber was arrested because of

the unpaid ticket, held at ACI overnight and strip searched twice.

Another plaintiff, Stephanie Clark, called police for assistance

after an auto accident and was arrested because a computer check

showed an outstanding arrest warrant for her failure to appear at

a probation review. Clark had already finished her probation and

the warrant was issued in error. She was taken to ACI and strip

searched twice.

Upon the defendants' motion, the district court dismissed

Roberts' claim based on the doctrine of res judicata. The

defendants then moved for summary judgment as to the remaining

plaintiffs. The district court granted the motion on the ground

that qualified immunity shielded the defendants from damages.

According to the district court, the defendants were entitled to

qualified immunity because it was not the "clearly established" law

in this circuit that prison officials needed at least reasonable
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suspicion that arrestees for minor offenses were carrying weapons

or contraband before conducting strip and visual body cavity

searches. 

II. DISCUSSION

We review a district court's grant of a motion for

summary judgment de novo; we examine the evidence in the light most

favorable to the non-moving party, and draw all reasonable

inferences in its favor. See Sands v. Ridefilm Corp., 212 F.3d

657, 660 (1st Cir. 2000). A motion for summary judgment should be

granted only if there is an absence of "sufficient evidence

favoring the nonmoving party for a jury to return a verdict for

that party." Id. at 61 (quoting Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 249 (1986)).

"Qualified immunity specially protects public officials

from the specter of damages liability for judgment calls made in a

legally uncertain environment." Ryder v. United States, 515 U.S.

177, 185 (1995). The purpose of the qualified immunity doctrine is

to balance the need to vindicate constitutional rights against the

need to protect public officials from litigation that could inhibit

the discharge of their duties. See Anderson v. Creighton, 483 U.S.

635, 638 (1987). In balancing those needs, we use a three step

analysis. See Suboh v. Dist. Attorney's Office of the Suffolk

Dist., 298 F.3d 81, 90 (1st Cir. 2002). 
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1. Violation of a Constitutional Right

The first step is to ask whether the facts alleged by the

plaintiffs show that the conduct of the public officials violated

a constitutional right. See Saucier v. Katz, 533 U.S. 194, 201

(2001); Wilson v. Layne, 526 U.S. 603, 609 (1999). The district

court's decision, and our affirmance, in Roberts' earlier lawsuit

makes clear that Rhode Island's strip and visual body cavity

searches without reasonable suspicion violated a constitutional

right. See Roberts, 239 F.3d at 113; Roberts, 175 F. Supp.2d at

183.

2. Clearly Established

The second step is to ask "whether that right was clearly

established at the time of the alleged violation." Conn v.

Gabbert, 526 U.S. 286, 290 (1999). The purpose of this step is "to

ensure that before they are subjected to suit, officers are on

notice their conduct is unlawful." Saucier, 533 U.S. at 206. This

means that in the present case we must determine whether it was the

clearly established law that prison officials needed at least

reasonable suspicion before subjecting the plaintiffs to strip and

visual body cavity searches.

The district court held that the law was not clearly

established. In doing so, the district court based its decision

largely on our statement in Roberts' earlier appeal that "[t]he

institutional security concerns in play here fall somewhere
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between" other cases that have been decided by this court.

Roberts, 239 F.3d at 111. The district court concluded from our

statement that the unlawfulness of the ACI strip search policy

could not have been apparent to the defendants. After careful

examination, we think the district court assigned too much meaning

to our statement. The statement simply recognizes that the facts

involved in this case are different than those of previous cases.

The Supreme Court recently explained in Hope v. Pelzer, 122 S. Ct.

2508, 2516 (2002), that "officials can still be on notice that

their conduct violates established law even in novel factual

circumstances."

In the same vein, the district court concluded that cases

from other circuits were of "limited application" to its analysis

because they involved different factual predicates than the present

case. Specifically, the district court said that cases from other

circuits "do not involve institutions designed like the ACI, where

pretrial detainees are mixed in with the general prison

population." To support its conclusion, the district court relied

on reasoning from the Eleventh Circuit, which had developed a line

of decisions that found the law "clearly established" only when the

facts of previous cases were materially similar to the present

case. See Hope v. Pelzer, 240 F.3d 975, 981 (11th Cir. 2001);

Suissa v. Fulton County, Ga., 74 F.3d 266, 269-70 (11th Cir. 1996);
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Lassiter v. Alabama A&M Univ., Bd. of Trustees, 28 F.3d 1146, 1150

(11th Cir. 1994).

Shortly after the district court's decision, the Supreme

Court in Hope explicitly overruled the cases from the Eleventh

Circuit upon which the district court relied. See 122 S. Ct. at

2515. The Supreme Court said that considering only those cases

with similar facts, as the district court did here, is a "rigid

gloss on the qualified immunity standard . . . [that] is not

consistent with our cases." Id. The Court further stated that

"[a]lthough earlier cases involving 'fundamentally similar' facts

can provide especially strong support for a conclusion that the law

is clearly established, they are not necessary to such a finding."

Id. Our cases are consistent with the Court's decision in Hope.

See Hatch v. Dep't for Children, Youth and Their Families, 274 F.3d

12, 22 (1st Cir. 2001); El Dia, Inc. v. Rossello, 165 F.3d 106, 109

(1st Cir. 1999); Germany v. Vance, 868 F.2d 9, 16 (1st Cir. 1989).

We therefore conclude that the district court's analysis

was flawed because it overemphasized our statement in Roberts'

earlier appeal and failed to properly weigh relevant decisions from

other circuits. We consider it unnecessary, however, to remand

this matter to the district court because the question of whether

a right is clearly established is an issue of law. See Singh v.

Blue Cross/Blue Shield of Mass., Inc., 308 F.3d 25, 35 (1st Cir.

2002) ("[Q]ualified immunity analysis under § 1983 involves a
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quintessential legal question: whether the rights at issue are

clearly established."). We instead proceed on our own to determine

whether our cases, as well as those from other circuits, clearly

established that reasonable suspicion was needed before prison

officials could subject people arrested for minor offenses to strip

and visual body cavity searches. 

We begin by noting that our inquiry is time-sensitive.

See Hatch, 274 F.3d at 22. Qualified immunity is available to the

defendants if, at the time of the alleged violations, the law was

not clearly established. See id. The parties all agree that the

operative date for our analysis is March 17, 2000.

"One tried and true way of determining whether [a] right

was clearly established . . . is to ask whether existing case law

gave the defendants fair warning that their conduct violated the

plaintiff's constitutional rights." Suboh, 298 F.3d at 93. After

thoroughly reviewing the law, we find that existing cases gave the

defendants plenty of fair warning that, prior to March 17, 2000,

reasonable suspicion was needed in order to subject people arrested

for minor offenses to strip and visual body cavity searches.

The place to start our analysis is with the Supreme

Court's decision in Bell v. Wolfish, 441 U.S. 520 (1979). In that

case, the Court upheld a strip and visual body cavity search of

pretrial detainees. In doing so, the Court conducted an analysis

that balanced the need for the searches against the invasion of
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personal rights. Id. at 559. Although the Court said that the

practice of strip searching individuals "instinctively gives us the

most pause," it found the searches constitutional because of the

security needs of the prison. Id. at 559-60. But the Court was

clear to delineate the scope of its holding:

[W]e deal here with the question whether

visual body-cavity inspections . . . can ever

be conducted on less than probable cause.

Balancing the significant and legitimate

security interests of the institution against

the privacy interests of the inmates, we

conclude that they can.

Id. at 560 (emphasis in original). In other words, Bell

established the ceiling; it made clear that prison officials did

not necessarily need probable cause to strip search pretrial

detainees. But Bell left the floor undefined. Still ambiguous was

whether prison officials needed any level of particularized

suspicion that detainees were carrying contraband or weapons before

conducting strip searches.

Our early cases applying Bell to the prison environment

dealt largely with situations involving prison visitors. In one of

our first prison visitor cases, Blackburn v. Snow, 771 F.2d 556,

567 (1st Cir. 1985), we held that:

[T]he Constitution requires a more

particularized level of suspicion to justify

the humiliating and intrusive searches

conducted here. While we need not define here

precisely what level of individualized

suspicion is required . . . a rule unabashedly

requiring none cannot be reconciled with the

Fourth Amendment.
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See also Cochrane v. Quattrocchi, 949 F.2d 11, 13 (1st Cir. 1991).

In Wood v. Clemons, 89 F.3d 922, 928 (1st Cir. 1996), we

clarified that the level of particularized suspicion required

before subjecting prison visitors to strip searches was "reasonable

suspicion." We said that "a strip search cannot be justified

absent some quantum of individualized suspicion. In determining

the level of individualized suspicion . . . courts have converged

upon one common benchmark: the standard of 'reasonable

suspicion.'" Id. (emphasis in original) (citations omitted).

Our cases addressing strip and visual body cavity

searches were not limited to prison visitors. We required

reasonable suspicion for strip searches at border crossings. See

United States v. Uricoechea-Casallas, 946 F.2d 162, 166 (1st Cir.

1991). And most significantly for this case, we demanded in Swain

v. Spinney, 117 F.3d 1, 7 (1st Cir. 1997), that prison officials

possess reasonable suspicion to conduct strip and visual body

cavity searches of arrestees. 

In Swain, we examined our prior cases dealing with prison

visitors and border searches, as well as relevant cases from other

circuits. We concluded that "it is clear that at least the

reasonable suspicion standard governs strip and visual body cavity

searches in the arrestee context as well." Id. This ruling was

consistent with cases from numerous other circuits. See Justice v.

City of Peachtree City, 961 F.2d 188, 193 (11th Cir. 1992); Masters
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v. Crouch, 872 F.2d 1248, 1255 (6th Cir. 1989), cert. denied, 493

U.S. 977 (1989); Weber v. Dell, 804 F.2d 796, 802 (2d Cir. 1986),

cert. denied, 483 U.S. 1020 (1987); Jones v. Edwards, 770 F.2d 739,

742 (8th Cir. 1985); Stewart v. Lubbock County, Tex., 767 F.2d 153,

156-57 (5th Cir.), cert. denied, 475 U.S. 1053 (1985); Giles v.

Ackerman, 746 F.2d 614, 618 (9th Cir. 1984), cert. denied, 471 U.S.

1053 (1985); Hill v. Bogans, 735 F.2d 391, 394 (10th Cir. 1984);

Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1273 (7th Cir.

1983); Logan v. Shealy, 660 F.2d 1007, 1013 (4th Cir. 1981), cert.

denied, 455 U.S. 942 (1982). 

Not only did we hold in Swain that reasonable suspicion

was required to strip search arrestees, we also determined when

analyzing the issue of qualified immunity that "it was clearly

established at the time of the search [May 18, 1993] that the

Fourth Amendment requires at least a reasonable suspicion to

conduct these types of searches." 117 F.3d at 5 (emphasis added).

This ruling too was in accord with decisions by other circuits.

See Chapman v. Nichols, 989 F.2d 393, 398 (10th Cir. 1993) (holding

that it was clearly established that a strip search policy applied

to minor offense detainees without particularized reasonable

suspicion was unlawful); Masters, 872 F.2d at 1255 ("The decisions

of all the federal courts of appeals that have considered the issue

reached the same conclusion: a strip search of a person arrested

for a traffic violation or other minor offense not normally
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associated with violence and concerning whom there is no

individualized reasonable suspicion that the arrestee is carrying

or concealing a weapon or other contraband, is unreasonable. We

believe the right of such a person to be free of such a search was

'clearly established' on October 21, 1986."); Weber, 804 F.2d at

803 (denying qualified immunity for defendants who performed

suspicionless strip searches on arrestees because "at least eleven

circuit court decisions . . . hold similar policies

unconstitutional"); Jones, 770 F.2d at 742 n.4 (denying defendants

qualified immunity because the Fourth Amendment's protection

against suspicionless strip searches of arrestees was well

established). In short, the defendants had more than fair warning

that, prior to March 17, 2000, prison officials needed reasonable

suspicion that arrestees for minor offenses, like the plaintiffs in

this case, were concealing contraband or weapons before conducting

strip and visual body cavity searches.

The defendants' principal argument is that, despite the

overwhelming precedent described above, it was still unclear

whether reasonable suspicion was required when arrestees were

commingled with a general prison population, as was the case at the

ACI facilities.

 Admittedly, our precedent does not speak to commingling

specifically. But as early as Blackburn, we rejected the argument

that "the security needs of a prison can, standing alone, properly
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justify the 'complete withdrawal' of Fourth Amendment rights from

all who enter [a prison]." 771 F.2d at 563 (emphasis in original);

see also Logan, 660 F.2d at 1013 ("An indiscriminate strip search

policy routinely applied to detainees . . . cannot be

constitutionally justified simply on the basis of administrative

ease in attending to security considerations.").

Cases from other circuits are more explicit; they refute

the defendants' argument with such clarity that we have little

trouble concluding that, when read in conjunction with our

opinions, the defendants had fair warning that commingling alone

could not justify suspicionless strip searches of arrestees. Most

notable is the Sixth Circuit's holding in Masters v. Crouch, 872

F.2d 1248, 1254 (6th Cir. 1989):

[T]he fact of intermingling [with other prison

inmates] alone has never been found to justify

such a search without consideration of the

nature of the offense and the question of

whether there is any reasonable basis for

concern that the particular detainee will

attempt to introduce weapons or other

contraband into the institution.

Other circuits too have found commingling to be an

insufficient basis upon which to abandon the need for reasonable

suspicion. The Second Circuit in Walsh v. Franco, 849 F.2d 68, 69

(2d Cir. 1988), ruled that a blanket strip search of all

misdemeanor arrestees was not permissible simply because those

arrestees were commingled among arraigned inmates. The court

explained that "the risk of a misdemeanor arrestee's introducing
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contraband into the general jail population simply did not warrant

a strip search of all arrestees and that particularized suspicion

is required for strip-searching any person arrested for a

misdemeanor or other minor offense." Id.

The Ninth Circuit in Giles v. Ackerman, 746 F.2d 614, 618

(9th Cir. 1984), adopted similar logic. The court explained that

blanket strip search policies cannot deter arrestees from smuggling

contraband into a jail because arrests are unplanned events. Id.

The court concluded "that defendants' heavy reliance on the

intermingling of its temporary detainees with the general [jail]

population is misplaced because such intermingling is both limited

and avoidable." Id. at 619 (citation and internal quotation marks

omitted) (alteration in original). The Tenth Circuit has held to

the same effect. See Chapman, 989 F.2d at 396 (rejecting the

defendant's argument "that the invasion posed by his policy is

justified by the need for jail security because women detainees

must be incarcerated in one cell with the general jail

population"); Hill, 735 F.2d at 394 (rejecting intermingling

argument because "intermingling is only one factor to consider in

judging the constitutionality of a strip search").

The defendants' final argument is that our decision in

Arruda v. Fair, 710 F.2d 886 (1st Cir. 1983), made the law unclear

regarding the need for reasonable suspicion when strip searching

arrestees who would ultimately be commingled with other inmates in
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a maximum security prison. In Arruda, we upheld a policy of strip

searching inmates at MCI-Walpole, a Massachusetts maximum security

prison. See id. at 888. Nowhere in that opinion did we articulate

a need for reasonable suspicion. The defendants say that ACI is a

maximum security prison too, and therefore Arruda suggests that no

reasonable suspicion is needed to conduct strip and visual body

cavity searches of arrestees brought to ACI. This argument is

unpersuasive for two reasons. First, as we have already discussed,

our cases since Arruda have made clear that reasonable suspicion is

required to strip search arrestees. See Swain, 117 F.3d at 7.

Second, Arruda was a case involving "particularly dangerous

prisoners." 710 F.2d at 887. The plaintiff himself was a

convicted felon assigned to a special cell block, which we

described as a "prison within a prison, designed to hold the most

dangerous inmates." Id. The plaintiff was assigned to this

special cell block for assaulting another prisoner. In addition,

the plaintiff testified that, while a prisoner, he possessed drugs

and a weapon. Id. at 888. 

Based on these facts, we have no difficulty concluding

that the defendants could not rely on Arruda to justify their

actions. It is simply not reasonable to equate people arrested for

non-violent, non-drug related minor offenses with a convicted felon

who, while incarcerated, possessed contraband and a weapon,
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assaulted a fellow prisoner, and was confined to a special cell

block designed to hold dangerous inmates. 

In light of our prior case law, as well as decisions from

other circuits, we conclude that the defendants had fair warning

that subjecting arrestees for minor offenses to strip and visual

body cavity searches without any reasonable suspicion was a

violation of the Fourth Amendment, even though the arrestees were

commingled with other inmates. The law was clearly established for

purposes of qualified immunity.

3. Objective Reasonableness

Having concluded that the law clearly established the

plaintiffs' right to be free from suspicionless strip and visual

body cavity searches, we now address the third and final step in

the qualified immunity analysis. The defendants are entitled to

qualified immunity if objectively reasonable prison officials in

the defendants' position would believe that their conduct was

lawful in light of clearly established law. See Suboh, 298 F.3d at

95; Swain, 117 F.3d at 9. This is a legal question, but we have

repeatedly recognized that "[a] determination of objective

reasonableness 'will often require examination of the information

possessed' by the defendant officials." Kelly v. Laforce, 288 F.3d

1, 7 (1st Cir. 2002) (quoting Anderson, 483 U.S. at 641); see also

Bilida v. McCleod, 211 F.3d 166, 174 (1st Cir. 2000); Sheehy v.

Town of Plymouth, 191 F.3d 15, 19 (1st Cir. 1999); McBride v.
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Taylor, 924 F.2d 386, 389 (1st Cir. 1991); Floyd v. Farrell, 765

F.2d 1, 6 (1st Cir. 1985).

Mindful that the reasonableness inquiry is "highly fact

specific," Swain 117 F.3d at 9, any determination we make would

require examining the record for evidence that the defendants had

reasonable suspicion, albeit mistakenly, that the plaintiffs were

concealing contraband or weapons. Reasonable suspicion can arise

from a wide variety of circumstances, including "the crime charged,

the particular characteristics of the arrestee, and/or the

circumstances of the arrest." Weber, 804 F.2d at 802; Giles, 746

F.2d at 617; see also Roberts, 239 F.3d at 113 (stating that

reasonable suspicion can be based on "observations of a particular

inmate during a less invasive pat-down frisk and clothing search,

or based on contraband found during that search"). 

The record before us, however, is barren of any facts

regarding what the prison officials knew, or did not know, about

the plaintiffs. The only facts we have are those from the parties'

pleadings and those facts contained in the decisions by this court

and the district court in Roberts' first round of litigation. The

facts developed there were based on a "joint factual stipulation"

submitted by the parties to the district court. The record now

before us does not contain the joint factual stipulation. Even if

it did, the joint stipulation pertains only to Roberts. As far as

we can tell, the parties have not stipulated to all the facts
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regarding any of the other plaintiffs. Given the state of the

record, we must remand this case to the district court for a

determination of the third step in the qualified immunity analysis,

as well as the other issues in the litigation. 

III. CONCLUSION

The law was clearly established on March 17, 2000, that

people arrested for non-violent, non-drug related minor offenses

could not be subjected to strip and visual body cavity searches

absent reasonable suspicion that they were concealing contraband or

weapons, even when those arrestees were commingled with general

prison populations. The district court's decision granting

qualified immunity to the defendants-appellees is therefore

REVERSED and the case is REMANDED for further proceedings

consistent with this opinion. Costs on appeal are awarded to

plaintiffs-appellants.

So ordered.