Vol. 25 No. 3- Ninth Circuit Approves County Jail Strip Search Policy

Ninth Circuit Approves County Jail Strip Search Policy

February 12, 2010

The Ninth Circuit Court of Appeal just issued an en banc opinion in the case of Bull v. City and County of San Francisco, et al., Case No. 05-17080.  This case involved a class action challenge to a policy of strip searching all arrestees being introduced into the general jail population.  The District Court held that the policy violated inmates’ Fourth Amendment rights and qualified immunity was denied to Sheriff Hennessey.1  The Court of Appeal initially upheld that ruling, but the en banc Court granted rehearing and reversed.  The en banc Ninth Circuit found that the policy did not violate the inmates’ constitutional rights and the Sheriff was entitled to qualified immunity.  Our office prepared an amicus brief on behalf of the California State Sheriffs’ Association, for which we serve as general counsel, in support of the Sheriff on the motion for rehearing in this case.

The Court’s en banc opinion acknowledges the long-standing principles that “’[a] detention facility is a unique place fraught with serious security dangers.’”  (Op., at 2243 (quoting Bell v. Wolfish, 441 U.S. 520, 559 (1979))).  The Court noted that there was evidence that the smuggling of drugs, weapons and other contraband into jails was a “serious, ongoing problem,” and was a significant risk to both inmates and employees  (Op., at 2244).   There was also evidence that “significant amounts” of contraband were found hidden in the strip searches conducted at booking, and contraband was found even on those arrestees that were being detained for non-violent offenses.  (Op., at 2248).  The strip search policy reviewed by the Court was for a visual body cavity search required of inmates who were transferred out of holding cells and introduced for housing into the general jail population.  (Op., at 2252).

A very strong dissenting opinion by several judges is included in the opinion.  This dissenting opinion focuses on abuses that can occur in strip searches of individuals who have not been arrested for any violent or other crime which would in any way suggest that the person was at risk for hiding contraband, such as being left naked in a cold cell for many hours.  The majority opinion, however, emphasizes that the legal issue challenged in the case is the blanket policy generally on its face, not specific abuses which may exist in a particular instance.  The majority notes that the Department’s search policy specifically requires that all searches be conducted in a professional manner and that its decision merely determines that searches conducted in compliance with those requirements is lawful, absent other circumstances which might suggest otherwise and which would constitute a violation of the Department’s policy.  (Op., at 2245).

In the en banc majority opinion, the Court relied upon prior cases recognizing that inmates do not forfeit their constitutional rights entirely simply because they are incarcerated.  However, the Court also emphasized the need to defer to penal management, which is a function of the executive branch and is better equipped to determine what protective measures are needed for the safety of correctional institutions.  (Op., at 2254).

The Court looked at whether the strip search policy was reasonable.  In particular, it considered whether there was a “valid, rational governmental interest” to justify the policy.  (Op., at 2256 (internal quotations omitted)).  In applying prior cases, the Court acknowledged that inmates do have a Fourth Amendment protection relating to “the invasion of bodily privacy in prisons.”  (Op. at 2258).  The Court concluded that the policy was reasonable because the search was limited to a visual inspection, and searches were required to be conducted in a professional manner and in an area that provided privacy to the inmate.  Furthermore, there was specific justification for the blanket policy in that there was evidence of “a pervasive and serious problem with contraband” inside the County’s jails and contraband was actually found during searches.  (Op., at 2259).  There was also testimony of the need for enforcing the prohibition of contraband in the jails and that such a policy supported the penalogical, including safety, interests of the jails and jail administration.  There was further evidence that unnecessary jail resources would be expended in having more targeted policies and there would be a higher incidence of contraband without the blanket policy.  (Op., at 2260-2261).

The Court specifically found that its prior opinions in Thompson v. City of Los Angeles, 885 F.2d 1439 (9th Cir. 1989), and Giles v. Ackerman, 746 F.2d 614 (9th Cir. (1984 (per curiam), holding that blanket strip search policies were “per se unconstitutional, even if the arrestees were to be transferred into the general population” were not consistent with United States Supreme Court opinions upholding such blanket strip search policies.  The Court rejected its conclusion in these prior cases that “strip searches must be based on individualized reasonable suspicion that an arrestee is carrying contraband.”  The Court noted that the United States Supreme Court in Bellv. Wolfish, 441 U.S. 520 (1979), had “rejected the case-by-case approach to the reasonableness inquiry” as to the validity of strip searches.  (Op., at 2264 (internal quotations omitted).

The Court further rejected the theory stated in Giles that arrestees do not have an opportunity to secrete contraband.  The Court noted that detainees often have sufficient time to hide contraband, or may even get arrested deliberately.  (Op., at 2267).  Further, the evidence before the Court showed that contraband was actually found during searches, supporting the fact that contraband, including weapons, could be hidden by arrestees prior to their arrest.  Therefore, the policy had both a preventative and deterrent purpose.


This opinion, if it is not successfully challenged to the United States Supreme Court, upholds blanket strip search policies for those inmates being housed in general jail populations.  In order to continue to justify such policy, agencies may want to keep detailed records about the frequency and type of contraband actually found during such searches, particularly if such items are found on arrestees who are detained for non-violent crimes.

Agencies should always assure that policies are in place to ensure that such strip searches are conducted in the most humane and respectful, professional manner.  Further, such policies should be strictly followed.

You should obtain advice and guidance from your agency’s legal counsel on the legal issues set forth above, but also feel free to contact our office at (714) 446 -1400 or via e-mail at mjm@jones-mayer.com if you wish to discuss this matter in greater detail.


1  The District Court did grant qualified immunity to Sheriff Hennessy as to the “safety cell” policy, which permitted blanket visual body cavity searches for placement of inmates in a “safety cell” at the jails.  (Op., at 2246 n.3)