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
Boudin, Chief Judge,
Coffin and Bownes, Senior Circuit Judges,
Torruella, Selya, Lynch, Lipez and Howard, Circuit Judges.
Gregory A. Belzley, with whom Dinsmore & Shohl LLP and Thomas
W. Kelly were on brief, for appellants.
Rebecca Tedford Partington, Deputy Chief, Civil Division, with
whom Patrick C. Lynch, Attorney General, was on brief, for
appellees.
___
JUDGMENT AND
OPINIONS EN BANC
August 4, 2003
This appeal having been considered by the court en banc, the
judgment of the district court is affirmed by an equally divided
court. The opinions that follow reflect the views of the
participating judges.
— Opinions Follow —
By the Court
________/s/______________
Richard C. Donovan, Clerk
SELYA, Circuit Judge (with whom BOUDIN, Chief Judge, and
LYNCH and HOWARD, Circuit Judges, join). The plaintiffs, all of
whom were arrested in Rhode Island for non-violent, non-drug-
related misdemeanors, were subjected to unconstitutional searches
of their persons incident to their detention at the Adult
Correctional Institutions (the ACI). These searches, conducted
pursuant to a longstanding institutional policy, encompassed both
strip searches (i.e., visual inspections of the naked body) and
visual body cavity searches (i.e., inspections of the anal and
genital areas).1 After the courts struck down the strip search
policy, the plaintiffs sued the State of Rhode Island and a number
of prison officials for damages sustained as a result of the
illegal intrusions.
The plaintiffs' suit invoked 42 U.S.C. § 1983 (2000).
Because the State is immune from suits for damages under section
1983, see Will v. Mich. Dep't of State Police, 491 U.S. 58, 71
(1989); Johnson v. Rodriguez, 943 F.2d 104, 108-09 (1st Cir. 1991),
the controversy before us focuses on the liability vel non of the
individual defendants. After some preliminary skirmishing, the
district court entered summary judgment in favor of those
defendants on the basis of qualified immunity. A panel of this
court reversed that ruling, but the full court subsequently granted
1
For ease in reference, we sometimes use the shorthand term
"strip search" to describe both practices.
-3-
rehearing en banc and (as is customary in such instances) ordered
the panel opinion withdrawn. The court now divides equally and
thus affirms the district court's ruling. The judges who subscribe
to this opinion believe that affirmance is fully warranted: upon
a broad review of the preexisting law and its application to the
unusual situation at the ACI, we conclude that, when the underlying
events occurred, prudent prison officials reasonably could have
believed that Rhode Island's strip search policy was
constitutional.
I. BACKGROUND
In reviewing a grant of summary judgment, we rehearse the
facts in the light most sympathetic to the non-moving parties
(here, the plaintiffs), indulging all reasonable inferences in
their favor. See, e.g., Suarez v. Pueblo Int'l, Inc., 229 F.3d 49,
53 (1st Cir. 2000). Here, however, that praxis has little bearing,
for the facts upon which our decision turns are largely undisputed.
Unlike other states, Rhode Island has no regional or
county detention facilities. It operates only a single, all-
purpose penitentiary: the ACI. Centrally located in Cranston,
Rhode Island, the ACI comprises seven separate maximum security
facilities. Two of those units — one for women and the other for
men — receive all persons committed to the custody of the
Department of Corrections regardless of the nature of their
offenses. At the times material hereto, these intake facilities
-4-
housed an array of prisoners ranging from newly sentenced felons to
convicts under protective custody to pretrial detainees to
arrestees. All of these individuals, except for detainees held in
protective custody, were commingled while in various parts of the
intake facilities. Detainees held in protective custody used the
same areas as other inmates but at different times.
During the currency of this arrangement, Rhode Island
maintained written policies that required all new entrants into the
ACI, including misdemeanant arrestees, to undergo strip and body
cavity searches. In 1999, Craig Roberts ran afoul of this policy.
Local police, having made a routine stop of a motor vehicle in
which Roberts was a passenger, learned that the Rhode Island Family
Court had issued a body attachment — the functional equivalent of
a writ of arrest — addressed to him. Although Roberts protested
that the body attachment had been withdrawn and produced what
purported to be documentation to that effect, the police detained
him.
In accordance with the customary procedure, the police
transported Roberts to the ACI. Upon his admission, he was twice
subjected to strip and body cavity searches. These searches
uncovered no drugs, weapons, or other contraband. Shortly
thereafter, a sheriff verified that the body attachment had been
withdrawn. Roberts was released.
-5-
Roberts was gone but not forgotten. He brought suit in
the federal district court alleging that the strip searches had
violated his constitutional rights. Upon cross-motions for summary
judgment, the district court ruled that the strip searches had
offended Roberts's rights under the Fourth Amendment and enjoined
the State from continuing to enforce the written policies then in
effect. Roberts v. Rhode Island, 175 F. Supp. 2d 176, 183 (D.R.I.
2000) (Roberts I). We affirmed. Roberts v. Rhode Island, 239 F.3d
107, 113 (1st Cir. 2001) (Roberts II).
Rhode Island abandoned the proscribed policy from and
after the date of the district court's decision (March 17, 2000).
Thereafter, eighteen plaintiffs — all of whom had been arrested for
non-violent, non-drug-related misdemeanors and subjected to strip
and body cavity searches prior to that date — brought a new action
in the federal district court on behalf of themselves and all
others similarly situated. In their class-action complaint, the
plaintiffs alleged that the searches violated their constitutional
rights and sought money damages.
The suit named as defendants the State and a galaxy of
prison officials. Upon the defendants' motion, the district court
dismissed Roberts's claim for damages based on the doctrine of res
judicata. See, e.g., Allen v. McCurry, 449 U.S. 90, 94 (1980)
(stating that res judicata precludes a plaintiff from relitigating
issues that were or could have been raised in an earlier action
-6-
against the same defendant prescinding from the same set of
operative facts); Kale v. Combined Ins. Co., 924 F.2d 1161, 1165-66
(1st Cir. 1991) (same). The court thereafter entered summary
judgment against the remaining plaintiffs. The court reasoned
that, prior to the decision in Roberts I, it was not clearly
established that prison officials needed some particularized
suspicion before strip-searching misdemeanant arrestees who were
about to be introduced into the general population at a maximum
security prison (and, therefore, that the defendants enjoyed the
protection of qualified immunity). This appeal followed.
II. ANALYSIS
We review orders granting summary judgment de novo.
Plumley v. S. Container, Inc., 303 F.3d 364, 369 (1st Cir. 2002).
Where, as here, a party's entitlement to summary judgment hinges on
a claim of qualified immunity, we must balance the need to
vindicate constitutional rights against the need to insulate public
officials from civil litigation that might unduly inhibit the
assiduous discharge of their duties. See Anderson v. Creighton,
483 U.S. 635, 638 (1987). In balancing those competing needs, we
employ a three-part algorithm. Suboh v. Dist. Att'y's Office, 298
F.3d 81, 90 (1st Cir. 2002); Hatch v. Dep't for Children, Youth and
Their Families, 274 F.3d 12, 20 (1st Cir. 2001). The threshold
question is whether the plaintiffs have established a
constitutional violation. Hope v. Pelzer, 536 U.S. 730, 736
-7-
(2002); Saucier v. Katz, 533 U.S. 194, 201 (2001). The second
question deals with fair warning; it asks whether the law was
clearly established at the time of the constitutional violation.
Hope, 536 U.S. at 739-41; Anderson, 483 U.S. at 638-40. The final
question is whether a reasonable official, situated similarly to
the defendant(s), would have understood that the conduct at issue
contravened the clearly established law. Saucier, 533 U.S. at 202.
In this case, the first part of the algorithm need not
detain us. We acknowledge that strip searches are intrusive and
degrading (and, therefore, should not be unreservedly available to
law enforcement officers). The Roberts decisions exemplify this
thinking; they hold unequivocally that the ACI's policy of strip-
searching persons arrested for non-violent, non-drug-related
misdemeanors, in the absence of particularized suspicion, violated
the Constitution. See Roberts II, 239 F.3d at 113; Roberts I, 175
F. Supp. 2d at 183. The questions on which this appeal turns,
therefore, involve the second and third branches of the qualified
immunity algorithm. We must determine whether the law was clearly
established, prior to March 17, 2000, to the effect that prison
officials need at least reasonable suspicion before subjecting
misdemeanant arrestees to strip searches when introducing them into
the general population of a maximum security prison, and whether a
reasonable prison official, situated similarly to the defendants,
-8-
would have understood at that time that the policy in place at the
ACI transgressed the Constitution.
Although the bases for these determinations often
overlap, the instant plaintiffs cannot prevail unless we determine
both questions favorably to them. Thus, we begin our analysis with
an examination of whether the law can be said to have been "clearly
established" at or before the critical time (March 17, 2000).2 The
degree to which the law was clearly established as of a particular
date is a matter for the court to determine. Elder v. Holloway,
510 U.S. 510, 516 (1994); Siegert v. Gilley, 500 U.S. 226, 232
(1991); Diaz v. Martinez, 112 F.3d 1, 3 (1st Cir. 1997).
The fundamental justification for the qualified immunity
defense is that public officials performing discretionary functions
should be free to act without fear of punitive litigation except
when they fairly can anticipate that their conduct will give rise
to liability for damages. Davis v. Scherer, 468 U.S. 183, 195
(1984). That anticipation depends, in large part, on the extent to
which legal rules are clearly established. Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982). The standard is an objective one.
Anderson, 483 U.S. at 639; Iacobucci v. Boulter, 193 F.3d 14, 21
(1st Cir. 1999). It follows, then, that an inquiry into the
reasonableness of an officer's conduct must focus on the
2
Because we answer this question in the negative, see text
infra, we need not address the final prong of the qualified
immunity algorithm.
-9-
discernible contours of the law at the time of the alleged act or
omission. Hatch, 274 F.3d at 22-23.
To attain the necessary perspective, an inquiring court
must look back in time and conduct the juridical equivalent of an
archeological dig. The court must canvass controlling authority in
its own jurisdiction and, if none exists, attempt to fathom whether
there is a consensus of persuasive authority elsewhere. See Wilson
v. Layne, 526 U.S. 603, 617 (1999); Brady v. Dill, 187 F.3d 104,
116 (1st Cir. 1999).
This exploration is not limited to cases directly on
point. Because "officials can still be on notice that their
conduct violates established law even in novel factual
circumstances," Hope, 536 U.S. at 741, overcoming a qualified
immunity defense does not require a plaintiff to show that either
the particular conduct complained of or some materially
indistinguishable conduct has previously been found unlawful. See
United States v. Lanier, 520 U.S. 259, 268-71 (1997); Mitchell v.
Forsyth, 472 U.S. 511, 535 n.12 (1985). Still, the relevant legal
rights and obligations must be particularized enough that a
reasonable official can be expected to extrapolate from them and
conclude that a certain course of conduct will violate the law.
Saucier, 533 U.S. at 201-02. Consequently, if the operative legal
principles are clearly established only at a level of generality so
high that officials cannot fairly anticipate the legal consequences
-10-
of specific actions, then the requisite notice is lacking. The
bottom line is that the qualified immunity defense prevails unless
the unlawfulness of the challenged conduct is "apparent."
Anderson, 483 U.S. at 640.
Against this backdrop, we turn to the degree of clarity
in the law relevant to this case. In conducting our appraisal, we
have endeavored to take into account all the decisional law, in and
out of our own circuit, that was on the books at the time of the
events in question. See Lanier, 520 U.S. at 268-69; Hatch, 274
F.3d at 23.
At the margins, the lines are easily plotted. On the one
hand, courts long have viewed blanket strip searches as extreme
intrusions upon Fourth Amendment rights. See, e.g., Bell v.
Wolfish, 441 U.S. 520, 558 (1979); Mary Beth G. v. City of Chicago,
723 F.2d 1263, 1272 (7th Cir. 1983). On the other hand, security
is a paramount concern in prison environments, and courts long have
recognized that unpleasantly intrusive security measures, up to and
including blanket strip searches, may be proper in such settings.
See Bell, 441 U.S. at 560-62; Bonitz v. Fair, 804 F.2d 164, 170
(1st Cir. 1986). The constitutional line that separates
permissible from impermissible uses of these methods is imprecise
and context-specific. In the last analysis, plotting that line
requires a determination of what is reasonable under a given set of
-11-
circumstances. Bell, 441 U.S. at 559; United States v. Chamorro,
687 F.2d 1, 5 (1st Cir. 1982).
The difficulty, of course, is that this formulation,
while legally respectable, does not go very far toward curing the
imprecision with which decisionmakers must grapple. This is
inevitable — or nearly so — given the subject matter. In the best
of circumstances, "[t]he test of reasonableness under the Fourth
Amendment is not capable of precise definition or mechanical
application." Bell, 441 U.S. at 559. Indeed, the Supreme Court
itself has acknowledged, in a qualified immunity case, "the
difficulty of determining whether particular searches or seizures
comport with the Fourth Amendment." Anderson, 483 U.S. at 644.
And that difficulty is compounded where, as here, the determination
involves gauging whether a serious intrusion is reasonable in an
incarcerative environment. See Swain v. Spinney, 117 F.3d 1, 9
(1st Cir. 1997).
With these basic tenets in mind, we examine the two First
Circuit decisions that bear most closely on this case. Neither
comparison is very exact.
We start with Swain. There, police arrested a woman on
suspicion of narcotics possession and temporarily held her in a
jail cell by herself. Id. at 8. The officers, following
institutional practice, strip-searched her. Id. at 4-5. We
declared the strip search unconstitutional, holding that strip-
-12-
searching an arrestee ordinarily requires at least reasonable
suspicion that the person arrested is concealing contraband or
weapons. Id. at 7. We pointed out that, in Swain's case, there
was no basis for any such suspicion. Id. at 8-9. Moreover, she
was being held in virtual isolation, so there was no risk that she
would come in contact with other prisoners (and, thus, succeed in
smuggling contraband or weapons into the jail). Id. at 8.
The plaintiffs contend that Swain clearly established the
law relevant to this case. It is, however, an oversimplification
to say that, because we applied the reasonable suspicion standard
to strip searches in a particular custodial context, the
handwriting was on the wall that the same standard would apply to
the ACI as well. There are important differences between detaining
an arrestee in virtual isolation and introducing an arrestee into
the general population of a maximum security prison.
Making this point brings us to our second case — a
decision that the defendants insist has decretory significance
here. That case is Arruda v. Fair, 710 F.2d 886 (1st Cir. 1983)
(Breyer, J.). There, we upheld a blanket strip search policy with
regard to prison inmates. Id. at 888. We reasoned that because
the searches involved the most dangerous of prisoners as they
departed from, and entered into, a particularly sensitive area of
a maximum security prison, security concerns provided a compelling
justification for the institution's policy. Id. at 887-88.
-13-
As in Arruda, the defendants in this case attempt to
justify their blanket strip search policy as a necessary (or, at
least, reasonable) means of ensuring institutional security. They
maintain that the unique nature of the ACI's intake facilities, in
which arrestees are intermingled with maximum security prisoners,
raises concerns similar to those raised in Arruda and warrants the
implementation of such a policy. This argument has considerable
force, for Arruda reasonably can be read as saying that the risk
that any prisoner in a maximum security facility might receive
weapons or contraband from visitors, renegade guards, or others is
enough to justify a blanket strip search policy. But despite its
broad language, Arruda involved strip searches of convicted felons,
not misdemeanant arrestees — and that disparity cannot idly be
brushed aside.
In the end, we recognize that both Swain and Arruda offer
valuable insights, but that neither is a very exact match. While
Swain makes clear that strip searches ought not lightly to be
indulged, the factual context of the case presented rather minimal
security concerns. And while Arruda makes clear that institutional
security needs may require intrusive measures in a maximum security
setting, that case dealt not with persons arrested for relatively
innocuous misdemeanors, but, rather, with hardened criminals. So
long as the facts in these cases are distinguishable in a fair way
from the facts at hand — and we believe that they are — then
-14-
neither of them can be said to have clearly established the law for
purposes of a qualified immunity determination in the instant case.
See Saucier, 533 U.S. at 202-03.
We recognized much the same point in Roberts II, 239 F.3d
at 111 (noting that "[t]he institutional security concerns in play
here fall somewhere between those exhibited in Swain, which were
insufficient to support a search, and those in Arruda and Bell,
which made broad-based searches without individual suspicion
reasonable"). To be sure, we ultimately placed the case "on the
Swain side of the constitutional line." Id. But our
acknowledgment that the ACI's strip search policy fell into the
gray area between Swain and Arruda carries more weight for present
purposes than our actual holding. A holding on the merits is not
dispositive on the issue of qualified immunity. See Cookish v.
Powell, 945 F.2d 441, 443 (1st Cir. 1991); Morales v. Ramirez, 906
F.2d 784, 787 (1st Cir. 1990). The law does not expect a public
official, faced with the need to make an objectively reasonable
real-world judgment, to anticipate precisely the legal conclusions
that will be reached by a panel of federal appellate judges after
briefing, arguments, and full-fledged review. See Wilson, 526 U.S.
at 617.
The plaintiffs, ably represented, go beyond Swain and
Arruda in an effort to convince us that reasonable correctional
officials should have realized the unconstitutionality of the ACI's
-15-
strip search policy prior to March 17, 2000. They point to a line
of cases stating that blanket strip searches of misdemeanant
arrestees, conducted without particularized suspicion, are
unconstitutional. See, e.g., Masters v. Crouch, 872 F.2d 1248,
1255 (6th Cir. 1989); Weber v. Dell, 804 F.2d 796, 804 (2d Cir.
1986); Stewart v. Lubbock County, 767 F.2d 153, 156-57 (5th Cir.
1985); Giles v. Ackerman, 746 F.2d 614, 618-19 (9th Cir. 1984);
Hill v. Bogans, 735 F.2d 391, 394-95 (10th Cir. 1984). These cases
come as no surprise; we cited many of them in Roberts II, 239 F.3d
at 111-13. For qualified immunity purposes, however, there are
important distinctions between these cases and the case at hand.
In the first place, all the cases upon which the
plaintiffs rely deal with detentions in local jails and police
stations. In contrast, the case before us involves detentions in
a maximum security prison. This distinction is quite meaningful:
the case law emphasizes that prison regulations may
constitutionally impinge upon fundamental rights so long as such
regulations are reasonably related to legitimate penological
interests. See, e.g., Overton v. Bazzetta, 123 S. Ct. 2162, 2167
(2003); Turner v. Safley, 482 U.S. 78, 87 (1987). Within the walls
of a maximum security prison, the need to preserve internal
security is compelling. Hudson v. Palmer, 468 U.S. 517, 526-27
(1984); Wood v. Clemons, 89 F.3d 922, 928 (1st Cir. 1996). We
think it follows that Rhode Island correctional officials
-16-
reasonably could have regarded the stark differences between local
lockups and maximum security prisons as pivotal in deciding whether
a particular security-oriented policy was necessary. We explain
briefly.
The population of a maximum security prison tends to be
much more volatile and much less transient than that of a county
jail. See Shain v. Ellison, 273 F.3d 56, 65 (2d Cir. 2001). Thus,
it is fairly debatable whether inmates in such a facility may be
likely to arrange for an outsider to bring them weapons or other
contraband by being arrested for a minor offense. Compare, e.g.,
Watt v. City of Richardson Police Dep't, 849 F.2d 195, 198 (5th
Cir. 1988) (declaring that "a suspect jailed even temporarily on a
minor offense could have the opportunity, if not searched, to
smuggle in weapons or contraband," so that strip-searching such
suspects "is not an irrational attempt to foster . . . security"),
with, e.g., Walsh v. Franco, 849 F.2d 66, 69 (2d Cir. 1988)
(declaring that "the risk of a misdemeanor arrestee's introducing
contraband into the general jail population simply d[oes] not
warrant a strip search of all arrestees"). The debatable nature of
the question argues in favor of qualified immunity. See Goyco de
Maldonado v. Rivera, 849 F.2d 683, 688 (1st Cir. 1988) (stating
that an official "need show no more than that [the question is
close] to prevail on his qualified immunity defense"); Vazquez Rios
v. Hernandez Colon, 819 F.2d 319, 328 (1st Cir. 1987) (noting that
-17-
"the closeness of the call suggests that [the law] could not have
been 'clearly established'").
The cases upon which the plaintiffs rely are
distinguishable in yet another salient respect. Those cases do not
gainsay that the security concerns arising out of the intermingling
of inmates are a significant counterweight in the balance that must
be struck between personal rights and practical necessities. Read
for all they are worth, the plaintiffs' cases at most deny that
this counterweight is a sufficient justification in particular
circumstances (invariably, circumstances attending an arrestee's
detention at facilities such as jails and police stations). See,
e.g., Masters, 872 F.2d at 1255; Hill, 735 F.2d at 394; Logan v.
Shealy, 660 F.2d 1007, 1013 (4th Cir. 1981). Given the unique
features of the ACI's intake facilities, the composition of the
inmate population, and the fact that the misdemeanant arrestees
generally were not searched prior to their arrival at the ACI, it
was hardly unreasonable for Rhode Island correctional officials to
calibrate the balance differently.
In point of fact, a separate line of cases has emphasized
the need to defer to the judgment of correctional officials in
addressing institutional security needs. See, e.g., Overton, 123
S. Ct. at 2167; Procunier v. Martinez, 416 U.S. 396, 404-05 (1974);
Hay v. Waldron, 834 F.2d 481, 486 (5th Cir. 1987); see also Bell,
441 U.S. at 547-48. After all, institutional security is "perhaps
-18-
the most legitimate of all penological goals." Overton, 123 S. Ct.
at 2168; accord Pell v. Procunier, 417 U.S. 817, 823 (1974).
In an opinion that is closer to this case than any other,
the Second Circuit upheld a policy in which a prison facility
conducted random strip searches of all inmates, including pretrial
detainees. See Covino v. Patrissi, 967 F.2d 73, 80 (2d Cir. 1992).
Adverting, among other things, to the fact that the plaintiff (a
pretrial detainee) commingled with sentenced inmates who had
histories of violence and substance abuse, the court concluded that
the prison's policy was a reasonable response to the officials'
concerns.3 Id. at 78-79.
The short of the matter is that, throughout the last
quarter of the twentieth century, courts had pursued two divergent
lines of precedent. This case, as we said in Roberts II, 239 F.3d
at 111, fell along neither axis, but, rather, into the tenebrous
middle. We are mindful that there is a distinction for qualified
immunity purposes between an unconstitutional but objectively
reasonable act and a blatantly unconstitutional act. Saucier, 533
U.S. at 206; Anderson, 483 U.S. at 641. Here, the lack of any
direct precedent and the undulating contours of the law during the
relevant period combine to persuade us that the constitutional
3
Of course, the plaintiff there had been arrested for an
offense more serious than those attributed to the plaintiffs in
this case. Covino, 967 F.2d at 75 n.1. The Second Circuit did not
base its decision on this distinction, however, nor did it limit
its holding to blanket strip searches of "major" offenders.
-19-
violation was not obvious; the defendants reasonably could have
thought, prior to Roberts I, that there was room in the law for the
ACI's strip search policy.
The plaintiffs pose one last challenge to the assertion
of a qualified immunity defense. They note that, rather than
strip-searching all arrestees, officials at the ACI could have
employed less extreme measures such as conducting pat-down searches
or segregating misdemeanant arrestees from the rest of the prison
population. In support of this view, they point to our conclusion
that the search policy was almost entirely unnecessary to control
the entry of contraband into the ACI. See Roberts II, 239 F.3d at
112. But this too involves a judgment call. In the relevant time
frame, some cases indicated that blanket strip searches are never
constitutional when the security needs they address could be met by
less intrusive means. E.g., Giles, 746 F.2d at 617; Sostre v.
Preiser, 519 F.2d 763, 764 (2d Cir. 1975). Other cases suggested
that the availability of less intrusive means is irrelevant to the
analysis so long as officials reasonably could have concluded that
such measures were more burdensome and less efficacious than
blanket strip searches. See, e.g., Bell, 441 U.S. at 559 n.40;
Hay, 834 F.2d at 485; Blackburn v. Snow, 771 F.2d 556, 566 (1st
Cir. 1985); see also Turner, 482 U.S. at 90-91 (emphasizing that
"prison officials do not have to set up and then shoot down every
conceivable alternative method of accommodating the claimant's
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constitutional complaint").4 Given this split in authority, we
find that the law on this matter was also not clearly established.
Therefore, the defendants reasonably could have believed (until the
federal court declared Rhode Island's blanket strip search policy
unconstitutional) that they were under no legal obligation to
resort to alternative measures.
Our brethren suggest that we require an exact match with
the facts of previously decided cases before we will deny a
defendant the shield of qualified immunity. That is simply not so.
What is so is that "[t]he meaning of reasonableness [of a search]
for Fourth Amendment purposes is highly situational" and requires
"a balancing of the need to search against the invasion which the
search entails." Wood, 89 F.3d at 928 (citations and internal
quotation marks omitted). The cases that our brethren cite in an
effort to show that reasonable suspicion was clearly established as
a condition precedent to a strip search of a person in custody are
no more on point than the cases, cited above, that authorize
various exceptions to that generality. Given this cacophony of
voices, a reasonable prison official, faced with the novel factual
situation that confronted those who were in charge of the ACI, had
no way of knowing which voice should guide him in drawing the
4
Indeed, the Bell Court suggested that the lack of a history
of discovered contraband on inmates' bodies might attest to the
effectiveness of this search modality as a deterrent. Bell, 441
U.S. at 559.
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Fourth Amendment balance. It is the absence of clear guidance, not
the absence of a perfect precedential match, that makes qualified
immunity appropriate here.
In this regard, our colleagues reprove us for attributing
significant weight both to the dangers inherent in commingling
violent felons with misdemeanant arrestees and to distinctions
between jails and maximum security prisons. We plead guilty to
that charge. But we attach weight to those factors because of our
respect for those who must maintain institutional security in the
most difficult of settings. Correctional officials charged with
the operation of maximum security prisons have an unenviable task
— and courts should be reluctant casually to impose on them
personal liability for damages in the absence of "standards
sufficiently clear and simple to be applied with a fair prospect of
surviving judicial second-guessing months and years [later]."
Atwater v. City of Lago Vista, 532 U.S. 318, 349 (2001).
To sum up, the district court mortally wounded the ACI's
blanket strip search policy in Roberts I, and we administered the
last rites in Roberts II. That policy is now dead and buried.
While we have found the defendants' resolution of the Fourth
Amendment balance incorrect, see Roberts II, 239 F.3d at 112-13, we
conclude that, given the mixed signals sent by the case law, the
difficulties inherent in Fourth Amendment balancing in the prison
context, the special features of the ACI, and the wide berth called
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for by the qualified immunity doctrine, the defendants, prior to
March 17, 2000, reasonably could have believed the ACI's policy to
be both justified and constitutional. Put another way, the
defendants did not have fair warning, prior to March 17, 2000, that
their conduct was unlawful. If judges can span the spectrum on
this sort of constitutional question, it would certainly be unfair
to hold the defendants liable for doing nothing more blameworthy
than guessing incorrectly about how the courts ultimately would
resolve the issue. See Wilson, 526 U.S. at 618.
III. CONCLUSION
We need go no further. This is a close case, but we do
not require public officials to foretell the course of
constitutional law with absolute accuracy in order to obtain the
balm of qualified immunity. Id. at 617. To the contrary, the
doctrine of qualified immunity is designed to protect "all but the
plainly incompetent or those who knowingly violate the law."
Malley v. Briggs, 475 U.S. 335, 341 (1986). Concluding, as we do,
that the law as it existed when the events at issue occurred did
not clearly establish that the ACI's policy authorizing blanket
strip and body cavity searches violated the plaintiffs' Fourth
Amendment rights, we would uphold the entry of summary judgment in
the defendants' favor on the basis of qualified immunity.
— Separate Opinion Follows —
-23-
BOWNES, Senior Circuit Judge, with whom COFFIN, Senior
Circuit Judge, TORRUELLA, Circuit Judge, and LIPEZ, Circuit Judge,
join. The defendants in this case were granted qualified immunity
because, according to the district court, the law did not "clearly
establish" that reasonable suspicion was needed to strip search
people arrested for non-violent, non-drug related minor offenses.
Our four respected colleagues agree with this analysis. We do not.
The opinion of our colleagues is wrong on the law, the logic that
they adopt is at odds with recent Supreme Court precedent regarding
qualified immunity, and we believe their reasoning will put
constitutional rights at risk.
It is important to keep in mind what we are dealing with
in this case. The strip searches conducted here are "perhaps 'the
greatest personal indignity' searching officials can visit upon an
individual." Blackburn v. Snow, 771 F.2d 556, 564 (1st Cir. 1985)
(quoting Bell v. Wolfish, 441 U.S. 520, 594 (1979)). According to
Rhode Island's written policies, these searches included a "visual
examination of [the] groin and rectum." Male arrestees 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 arrestees were required "to bend over and spread the rectum
to provide a clear view of the area." Moreover, these searches
were conducted against harmless individuals. All of the plaintiffs
in this case were arrested for non-violent, non-drug related minor
-24-
offenses. By way of example, one of the 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 the Adult Correctional
Institutions ("the 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 the ACI and
strip searched twice.
With these facts in mind, we turn to the legal issues in
this case. We begin with whether it was the "clearly established"
law in this circuit, as of March 17, 2000, that prison officials
needed reasonable suspicion to strip search non-violent, non-drug
related minor offense arrestees.5 "One tried and true way of
determining whether [a] right was clearly established . . . is to
5
We note at the outset that the reasonable suspicion standard
is not particularly demanding. Reasonable suspicion is "something
stronger than a mere hunch, but something weaker than probable
cause." Wood v. Clemons, 89 F.3d 922, 929 (1st Cir. 1996)
(citation and quotation marks omitted). It is a standard that can
be satisfied by a wide range of circumstances, including "the crime
charged, the particular characteristics of the arrestee, and/or the
circumstances of the arrest." Weber v. Dell, 804 F.2d 796, 802 (2d
Cir. 1986); see also Roberts v. Rhode Island, 239 F.3d 107, 113
(1st Cir. 2001) (Roberts II) (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").
-25-
ask whether existing case law gave the defendants fair warning that
their conduct violated the plaintiff's constitutional rights."
Suboh v. Dist. Attorney's Office of the Suffolk Dist., 298 F.3d 81,
93 (1st Cir. 2002). Our colleagues describe this inquiry as an
archeological dig, yet focus on only the top and bottom layers of
the excavation. See Swain v. Spinney, 117 F.3d 1 (1st Cir. 1997);
Arruda v. Fair, 710 F.2d 886 (1st Cir. 1983). Our colleagues
choose to ignore the cases that lie in the layers in between,
thereby omitting consideration of relevant precedent. A proper
qualified immunity analysis requires a court to look "at all
available case law." Hatch v. Dep't for Children, Youth and Their
Families, 274 F.3d 12, 23 (1st Cir. 2001). We will therefore
briefly trace the development of this circuit's reasonable
suspicion standard as it applies to strip searches.
The place to start is 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
who had contact with prison visitors. Id. at 560. In doing so,
the Court conducted an analysis that balanced the need for the
searches against the invasion of personal rights. Id. 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, i.e.,
the realistic possibility that contraband could pass from visitor
-26-
to detainee. Id. at 558. 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 unanswered
was the question of whether prison officials needed any level of
particularized suspicion that detainees were carrying contraband or
weapons or in a position to receive them from others 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
(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.
Id. at 567; see also Cochrane v. Quattrocchi, 949 F.2d 11, 13 (1st
Cir. 1991). It is also noteworthy that we surveyed the legal
-27-
landscape as it existed at the time and grouped arrestees into the
category of strip search scenarios in which particularized
suspicion was necessary. See Blackburn, 771 F.2d at 565. This
grouping was merely a foreshadowing of things to come.
In Wood v. Clemons, 89 F.3d 922 (1st Cir. 1996), we
clarified that the level of particularized suspicion required
before subjecting prison visitors to strip searches was "reasonable
suspicion." Id. at 929. 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. at 928 (emphasis in original) (citations
omitted).
Our cases addressing the reasonable suspicion standard in
the context of 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 held in Swain v. Spinney, 117 F.3d
1 (1st Cir. 1997), that there must be reasonable suspicion to
conduct strip searches of arrestees. Id. at 7.
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
-28-
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.6
Our brethren mischaracterize the holding in Swain. They
paraphrase Swain as holding that reasonable suspicion is
"ordinarily" required for arrestees and that strip searches "ought
not lightly to be indulged." We respectfully disagree with our
colleagues' description of Swain's holding. Swain's holding is
clear and unqualified. Swain does not say that reasonable
suspicion is only sometimes required. Rather than paraphrase the
words of Swain, we shall quote its holding directly: "A strip and
visual body cavity search of an arrestee must be justified, at the
least, by a reasonable suspicion." 117 F.3d at 5. It is hard to
imagine a more clear statement of the law.
Our colleagues fail to mention that Swain contained
another holding that is especially relevant to this case. When
analyzing the issue of qualified immunity we stated:
6
See Justice v. City of Peachtree City, 961 F.2d 188, 193
(11th Cir. 1992); Masters 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).
-29-
Furthermore, while some courts have suggested
that a higher standard may be necessary to
justify a strip search and visual body cavity
inspection, 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.
Id. (emphasis in original). This ruling too was in accord with
decisions by other circuits.7
In short, Swain states unequivocally that reasonable
suspicion is required to strip search arrestees and that this
requirement was clearly established as early as 1993, well before
the dates in question here. These rulings were in conformity with
circuits across the country.
Despite this overwhelming precedent, our colleagues claim
that Swain's holdings could not have given the defendants fair
7
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 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).
-30-
warning that the reasonable suspicion standard would apply to them.
They say that Swain involved an arrestee who was held alone in a
single cell, whereas the plaintiffs in this case were commingled
with other prisoners. Admittedly, our precedent does not speak to
commingling specifically. But that fact does not mean that the
defendants are entitled to qualified immunity. See Hatch, 274 F.3d
at 23 (although "[o]ur own precedents are . . . inconclusive," the
law was clearly established by "an emerging body of decisional law
outside our own circuit"). Commingling may not always pose a
security risk. It is not commingling, per se, that presents a
security problem; it is commingling that involves a risk of illegal
traffic among the commingled inmates.
As early as Blackburn, we rejected the argument that "the
security needs of a prison can, standing alone, properly 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 in rejecting
the commingling argument advanced by the defendants.8 Most notable
8
See Walsh v. Franco, 849 F.2d 68, 69 (2d Cir. 1988) (ruling
that a blanket strip search of all misdemeanor arrestees was not
permissible simply because those arrestees were commingled among
-31-
is the Sixth Circuit's holding in Masters v. Crouch, 872 F.2d 1248
(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.
Id. at 1254. In short, the cases from other circuits, when read in
conjunction with our own precedent, would not permit a reasonable
prison official to conclude that minor offense arrestees could be
strip searched without reasonable suspicion simply because the
prison officials decide to mix the arrestees with other prisoners.
Our colleagues say that Swain could not have provided
fair warning for another reason. According to our brethren, Swain,
as well as the cases from other circuits upon which it relied,
involved local jails rather than prisons, like the ACI. The
distinction between jails and maximum security prisons is a crucial
leg upon which our colleagues' opinion rests. It is here that
arraigned inmates); Giles v. Ackerman, 746 F.2d 614, 617-18 (9th
Cir. 1984) ("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.")(citation and internal quotation marks omitted)
(alteration in original); 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").
-32-
their incomplete archeological excavation which we mentioned
earlier becomes important. The cases that our colleagues ignored
involved the early development of our reasonable suspicion standard
as it applied to strip searches of prison visitors. At issue in
those cases were both jails and prisons. See Wood, 89 F.3d at 925
(prison); Blackburn, 771 F.2d at 559 (county jail).
Even more relevant is the fact that one of those cases
dealt with the ACI. See Cochrane, 949 F.2d at 12. In Cochrane, we
vacated a judgment granting directed verdicts for ACI officials
defending the strip search of an inmate's daughter. We said that:
[A]bsent any evidence that appellant ever
violated a prison visitation rule, or even
supplied Cochrane with drugs, a reasonable
juror could have concluded that Cochrane's
contraband drugs were supplied by prison
officials or other inmates. Thus, the jury
could have found that the strip search of
appellant was unreasonable because it was
based on no "individualized suspicion."
Id. at 13 (emphasis in original). Our colleagues maintain that the
defendants were justified in believing that no reasonable suspicion
was required in this case in part because the defendants "must
maintain institutional security in the most difficult of settings."
Yet the same setting and security considerations were not enough to
defeat the requirement for individualized suspicion in Cochrane.
We do not understand on what legal basis our colleagues can now say
that those same security needs made the defendants'
unconstitutional strip searches reasonable. Certainly the
-33-
defendants had fair warning that the reasonable suspicion standard
would be applied to them because, in fact, they had already been
held to that standard in the past.
Of course, one difference between Cochrane and the
present case is that Cochrane involved prison visitors, not minor
offense arrestees. But this fact does not help the defendants; if
anything, it further highlights why the defendants had fair warning
that their strip search policies were unreasonable.
The Supreme Court has explained that prison visitors
"invite a host of security problems" because they can pass weapons
and contraband "to an inmate unnoticed by even the most vigilant
observers." Block v. Rutherford, 468 U.S. 576, 586 (1984). It is
well recognized, however, that individuals arrested for non-
violent, non-drug related minor offenses do not present the same
security risk as prison visitors. See Roberts II, 239 F.3d at 111;
Giles, 746 F.2d at 617. This is because arrests, unlike visits,
are not planned events. They are random and do not afford an
arrestee the opportunity to hatch a scheme to smuggle contraband
into a prison. As the Second Circuit has explained:
It is far less obvious that misdemeanor
arrestees frequently or even occasionally hide
contraband in their bodily orifices. Unlike
persons already in jail who receive contact
visits, arrestees do not ordinarily have
notice that they are about to be arrested and
thus an opportunity to hide something. For the
exceptions--for example, a person who is
allowed to visit the bathroom unescorted
-34-
before an arrest--reasonable suspicion may
well exist.
Shain v. Ellison, 273 F.3d 56, 64 (2d Cir. 2001). Our brethren
overlook the important fact that the Court in Bell authorized strip
searches of detainees only after the detainees had come into
contact with prison visitors. See 441 U.S. at 558. The present
case involves people brought to the ACI because they were arrested,
sometimes mistakenly as the record reveals, for non-violent, non-
drug related minor offenses. They did not come into contact with
prison visitors.
Our colleagues concoct a hypothetical situation in which
an inmate arranges for an outsider to bring weapons or contraband
inside the prison by staging an incident that would lead to the
outsider being arrested for a minor offense. With due respect,
this is chimerical. The only case our colleagues have exhumed to
support their scenario is Watt v. City of Richardson Police Dep't,
849 F.2d 195 (5th Cir. 1988). They claim Watt stands for the idea
that "a suspect jailed even temporarily on a minor offense could
have the opportunity, if not searched, to smuggle weapons or
contraband." Id. at 198. The very next sentence from Watt,
however, shows that the quote upon which they rely is applicable
only to those arrestees charged with weapons, shoplifting or drug
offenses or those with a history of such offenses. See id.
("Limiting the searches generally to those offenders charged with
or having a criminal history of narcotics, shoplifting or weapons
-35-
charges is not an irrational attempt to foster jail security . . .
."). Watt does not support our colleagues' theory that non-
violent, non-drug related minor offense arrestees will conduct
coordinated smuggling schemes to infiltrate prisons with contraband
and weapons.
Perhaps more importantly, there is no evidence in the
record to support our colleagues' hypothetical. In fact, the
record undermines it. At no time has the ACI ever found weapons or
contraband in an arrestee's rectum or genital area. Roberts II,
239 F.3d at 112 n.6. Only on one occasion has the ACI found
contraband in the body cavity of a minor offense arrestee. Id. In
that instance, the arrestee was hiding a bag of drugs in his mouth.
Id. All the other contraband that the ACI has found on minor
offense arrestees has been discovered in their clothing. It is
obvious that the intrusive and degrading searches that the ACI
chose to institute were not required to find this contraband. Id.
No historical analysis of our strip search cases would be
complete without a close examination of our holding in Arruda v.
Fair, 710 F.2d 886 (1st Cir. 1983). Our colleagues say that Arruda
is a case with "considerable force" because it "reasonably can be
read as saying that the risk that any prisoner in a maximum
security facility might receive weapons or contraband from
visitors, renegade guards, or others is enough to justify a blanket
strip search policy." (emphasis added). Characterized in this
-36-
manner, Arruda forms another critical leg upon which our
colleagues' opinion stands. Their expansive reading of Arruda is
unwarranted. Arruda is a totally different case than what we face
here. It is so different that no reasonable official could have
read Arruda to authorize suspicionless strip searches of minor
offense arrestees. This is true for three reasons.
First, Arruda was decided twenty years ago and, 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. These prisoners were
convicted felons 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 himself was assigned to this
special cell block for assaulting another prisoner. Id. In
addition, the plaintiff testified that, while a prisoner, he
possessed drugs and a weapon. Id. at 888. It is beyond
comprehension how the defendants can equate extraordinarily violent
convicted felons with people who have been arrested for minor
offenses.
Third, and most pertinently, what we identified in Arruda
as the "closest question," id., most analogous to the instant
case, was whether prisoners who were convicted felons needed to be
-37-
searched en route from cell to library or infirmary, even though
accompanied by a guard. Like the misdemeanor arrestees here, there
would seem to be no basis for any suspicion that such inmates would
possess contraband. The record in Arruda, however, revealed a
number of instances when guards were found to be involved in
smuggling drugs to prisoners. This caused us to hold, "[G]iven the
problem of prison employee involvement with contraband, the
district court's conclusion is not unreasonable." Id.; but see id.
at 891, 890 (Maletz, J., dissenting in part) ("When one of the
primary justifications for strip searches in these circumstances
rests on the institution's inability to control its own staff the
scales tip decidedly in favor of the inmate. . . . I am constrained
to conclude that routine visual strip searches before and after
visits to the prison library and prison hospital are unreasonable,
absent some level of cause.").
Twenty years have passed since we decided Arruda and the
case law barring suspicionless strip searches of minor offense
arrestees has proliferated. And Swain, with its clear recognition
that a strip search requires reasonable suspicion, has been on the
books of this circuit since 1997. The record in this case does not
reveal a prison employee drug smuggling problem. There remains
only the speculative risk that a non-violent, non-drug related
misdemeanant, randomly arrested, might fortuitously be a bearer of
-38-
contraband. That is not enough, in our view, to permit the
defendants to escape liability for their unconstitutional acts.
The only similarity between Arruda and the present case
is that the correctional facilities in both cases are maximum
security prisons. This is the vital similarity upon which the
defendants' argument relies. Despite the key differences I have
described above, our colleagues are persuaded by this single
similarity. Our colleagues say that prison officials cannot be
expected to anticipate precisely the legal conclusions that we
judges will make after full briefing and argument. We agree with
that statement as a general matter. But that is not to say that
prison officials have no responsibility to analyze the law. All of
the individual defendants here are high level prison officials.9
They are not entry-level prison guards who have no access to legal
advice and have superiors who have failed to supply any training on
constitutional law whatsoever. The defendants in this case are the
superiors and should be held to the standard of a "reasonably
competent public official [who] should know the law governing his
conduct." Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982). The
qualified immunity analysis is based on an objective standard. See
9
The individual defendants include the former and current
director of the Rhode Island Department of Corrections, the former
and current warden of the Intake Services Center at the ACI, the
warden of the women's facility at the ACI, and the chief of
recruitment and training at the Rhode Island Department of
Corrections.
-39-
Suboh, 298 F.3d at 95. This necessarily implies some informed and
professional analysis. Merely to take refuge in the concept that
the ACI is a maximum security prison, without identifying any
realistic distinction between the situation in Arruda and the
situation that the defendants were confronted with at the ACI,
falls far short of any credible analysis of the state of the law
both within and outside this circuit.
We close our review of the relevant legal history
regarding strip searches with an important observation. Our
colleagues do not cite to a single case which permits suspicionless
strip searches of non-violent, non-drug related minor offense
arrestees. It is quite amazing that they can claim the law is
ambiguous but fail to provide a single case that directly supports
their position. The only case our colleagues offer is Covino v.
Patrissi, 967 F.2d 73 (2d Cir. 1992). But that case, as our
colleagues readily admit, is not on point. The plaintiff in Covino
was not arrested for non-violent, non-drug related minor offenses
like the plaintiffs in this case. He was arrested for kidnaping a
child under the age of sixteen and was ultimately sentenced to 20
to 35 years in prison. Id. at 75 n.1. In addition, the prison
superintendent in Covino testified that "occasionally contraband
and drugs were found secreted in an inmate's rectum." Id. at 79.
As we have already explained, the evidence in this case is to the
contrary.
-40-
Without direct legal support, our brethren are forced to
argue that generalized statements from certain cases made the law
so ambiguous that the defendants could not have had fair warning.
Our colleagues argue, for example, that there exists "a separate
line of cases [that] has emphasized the need to defer to the
judgment of correctional officials in addressing institutional
security needs." If these types of sweeping statements are enough
to shield prison officials from liability for their illegal
actions, then there is the significant risk that qualified immunity
will always attach.
It is this concern that brings us to our final point. Up
to now, we have argued that our colleagues analysis of our legal
history is incomplete and untenable. This is not the only flaw in
their opinion. We are deeply troubled by the weight our colleagues
give to our statement in Roberts II that institutional security
concerns in this case "fall somewhere between" those exhibited in
Swain and Arruda. 239 F.3d at 111. Our colleagues describe this
statement as an acknowledgment that the ACI's strip search policy
fell into a "gray area" of the law. We respectfully disagree. The
Roberts II statement merely recognizes the obvious: that the facts
of the present case fall somewhere between those of Swain and
Arruda. Such an observation is not surprising. Indeed, most cases
will fall somewhere between Swain and Arruda because those two
cases represent the opposite ends of the spectrum. Swain was a
-41-
case involving an arrestee who was placed in a cell in a local
police station. In contrast, Arruda involved extraordinarily
violent convicted felons who were confined to a special security
section of a maximum security prison. What our colleagues have
done is to construe a dictum probably intended to soften criticism
of the prison officials into a sweeping carte blanche, protecting
officials for a wide swath of conduct elsewhere long since
forbidden.
Placing so much weight on the Roberts II statement runs
the risk of creating an impenetrable defense for government
officials. Our colleagues' reliance on the Roberts II statement
implies that qualified immunity will only be denied in this circuit
when the facts of the case at bar are the same as those in
previously decided cases. This risk is compounded by our
colleagues' statement that Swain could not give the defendants fair
warning because it is not "a very exact match" to the facts of this
case.
Such reasoning flouts the Supreme Court's holding in Hope
v. Pelzer, 536 U.S. 730 (2002). In Hope, the Court admonished the
Eleventh Circuit for finding the law clearly established only when
the facts of previous cases were "fundamentally similar" to the
present case. Id. at 739. The Court said that such an approach
was a "rigid gloss on the qualified immunity standard . . . [that]
is not consistent with our cases." Id. The Court explained that
-42-
"officials can still be on notice that their conduct violates
established law even in novel factual circumstances," and 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.
The same is true of cases with 'materially similar' facts." Id. at
741.
Our colleagues respond by saying that "[i]t is the
absence of clear guidance, not the absence of a perfect
precedential match, that makes qualified immunity appropriate
here." In short, they reject Swain as giving "clear guidance"
because of factual differences, while claiming allegiance to Hope's
ruling that "fundamentally similar" facts are not necessary. This
seems to us an attempt to have it both ways.
Our colleagues may well be correct that the strip search
policy at issue in this case, and others like it, are "dead and
buried." But their qualified immunity analysis will live on; it
will undoubtedly be used in future cases involving other important
constitutional rights. The qualified immunity defense is "an
attempt to balance competing values: not only the importance of a
damages remedy to protect the rights of citizens . . . but also
'the need to protect officials who are required to exercise their
discretion and the related public interest in encouraging the
vigorous exercise of official authority.'" Harlow, 457 U.S. at 807
-43-
(quoting Butz v. Economou, 438 U.S. 478, 504-06 (1978)). By
finding ambiguity in our cases where there is none, and by implying
that previous cases must be "a very exact match" before they can
give fair warning for purposes of the qualified immunity analysis,
our brethren have tipped the balance away from the Constitution.
They have gone far toward granting absolute immunity under the
cloak of qualified immunity. We believe that this court is
obliged not only to give due deference to the judgment of
government officials but to insist that the constitutional rights
of individuals be vigilantly protected.
If the bar to a remedy is set too high, then
constitutional rights are in jeopardy. Government officials will
have less incentive to change their illegal policies on their own
accord because the deterrent effect of damages is lacking.
Aggrieved individuals will have less incentive to challenge those
policies because monetary compensation for their harms is
unavailable. In the end, unconstitutional government action is
more likely to go unchanged. That is our ultimate concern.
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