Johnson v. Government of the District of Columbia

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 13, 2013 Decided November 15, 2013

No. 11-5115

DIANNA JOHNSON, ET AL.,
APPELLEES

RUBBIYA MUHAMMED, ET AL.,
APPELLANTS

v.

GOVERNMENT OF THE DISTRICT OF COLUMBIA AND TODD
DILLARD, INDIVIDUALLY AND OFFICIALLY, UNITED STATES
MARSHAL, D.C. SUPERIOR COURT,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 1:02-cv-02364)

William Charles Cole Claiborne III argued the cause for
appellants. With him on the briefs were Barrett S. Litt and Paul
J. Estuar. Lynn E. Cunningham entered an appearance.

Robin M. Meriweather, Assistant U.S. Attorney, argued the
cause for appellee Todd Dillard. With her on the brief were
Ronald C. Machen, Jr., U.S. Attorney, and R. Craig Lawrence
and W. Mark Nebeker, Assistant U.S. Attorneys.
 2

Stacy L. Anderson, Assistant Attorney General, Office of the
Attorney General for the District of Columbia, argued the cause
for appellee District of Columbia. With her on the brief were
Irvin B. Nathan, Attorney General, Todd S. Kim, Solicitor
General, and Donna M. Murasky, Deputy Solicitor General.
Louis A. Kleiman entered an appearance.

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

Opinion for the Court filed by Circuit Judge TATEL.

Opinion concurring in part and concurring in the judgment
filed by Circuit Judge ROGERS.

TATEL, Circuit Judge: Concerned that contraband poses
significant dangers to inmates and employees, many penal
institutions strip search incoming detainees. The appropriateness
of these invasive procedures doubtless looks different from the
perspective of detainees such as Appellants—women forced to
endure strip searches while awaiting presentment hearings at the
District of Columbia Superior Court. Alleging that such searches
violate the Fourth Amendment and, where men are not similarly
strip searched, the Fifth Amendment’s equal protection
guarantee, these women filed this class action against the
District of Columbia and the former United States Marshal for
the Superior Court who administered the Superior Court
cellblock. Because men and women at the cellblock are now
strip searched only upon individualized reasonable suspicion, we
have no occasion to consider whether the policies under which
class members were strip searched may continue. Rather, the
only question in this case is whether class members can recover
damages from the District or from the former Superior Court
Marshal. The district court granted summary judgment to the
District, concluding that because the Superior Court Marshal in
 3
charge of the cellblock was at all times a federal official acting
under color of federal law, the city had no authority to prevent
the strip searches. The district court also granted summary
judgment to the Superior Court Marshal, finding him entitled to
qualified immunity. We affirm both rulings.

I.
Under the Anti-Drug Abuse Act of 1988, Pub. L. No. 100-
690, tit. VII, § 7608(a)(1), 102 Stat. 4181, 4512–15 (1988)
(codified at 28 U.S.C. §§ 561–569), two United States Marshals
serve the District of Columbia. The first, the U.S. Marshal for
the District of Columbia, serves the U.S. District Court and this
Court. 28 U.S.C. § 566(b). The second, the U.S. Marshal for the
District of Columbia Superior Court, serves that court only. 28
U.S.C. § 561(c). During the time of the events at issue in this
case, Appellee, Todd Dillard, served as Superior Court Marshal.

Sometime in the mid- to late-1990s, Dillard, concerned that
detainees were bringing weapons, drugs, and other contraband
into the cellblock, began requiring all incoming detainees to
undergo a three-step search. Detainees first passed through metal
detectors; they were then patted down by deputy marshals; and,
finally, they were required to remove their clothing, squat, and
cough to dislodge any hidden contraband. The parties refer to
these “drop, squat, and cough” searches as strip searches. Given
that “[t]he evidence of the non-movant is to be believed, and all
justifiable inferences are to be drawn in his favor,” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986), we infer from the
evidence presented that despite Dillard’s facially gender-neutral
policy, deputy marshals in fact subjected male detainees to strip
searches only upon individualized reasonable suspicion. By
contrast, all women were forced to drop, squat, and cough. This
included female pre-presentment arrestees charged with non-
violent, non-drug offenses. After completing the three-step
 4
search process, female pre-presentment arrestees proceeded to
interview rooms outside presentment courtrooms. Roughly
eighty percent of female arrestees were released following these
hearings.

In 2002, a class of women detained and strip searched at the
Superior Court cellblock filed this suit seeking damages and
injunctive relief. After the United States Marshals Service halted
strip searches without individualized reasonable suspicion, class
members abandoned their claims for injunctive relief and filed
an amended complaint in which they sought only monetary relief
from the District of Columbia and Dillard, whom they sued in
his personal and professional capacities. The District and Dillard
separately moved to dismiss the complaint for failing to state
any claims upon which relief could be granted. The district court
denied both motions and certified two classes: a Fourth
Amendment Class and a Fifth Amendment Class. The Fifth
Amendment Class includes all female pre-presentment arrestees
held at the Superior Court cellblock between December 2, 1999
and April 25, 2003 and subjected to strip searches “under similar
circumstances for which men arrestees were not.” See Johnson
v. District of Columbia, 584 F. Supp. 2d 83, 86 (D.D.C. 2008).
The Fourth Amendment Class includes all female pre-
presentment arrestees who, during the same time period, were
strip searched without individualized reasonable suspicion or
probable cause and who were arrested for non-drug, non-violent
offenses. See id.

Following class certification, the district court entered
summary judgment in favor of the District. Believing that the
Superior Court Marshal is a federal official who acted at all
times under color of federal law, and that the District therefore
had no choice but to turn pre-presentment arrestees over to the
 5
Marshal, the court concluded that the District could not be held
liable for any unconstitutional acts of the Marshal. Id. at 90–93.

After further discovery, the district court orally granted
Dillard summary judgment on all claims against him in his
professional capacity, finding that his status as a federal official
left him beyond the reach of 42 U.S.C. § 1983. See Johnson v.
District of Columbia, 780 F. Supp. 2d 62, 68 (D.D.C. 2011)
(describing this holding). Several months later, the district court,
finding Dillard entitled to qualified immunity, granted him
summary judgment on all claims against him in his personal
capacity. As for the claims of Fourth Amendment Class
members, the district court, relying on our recent decision in
Bame v. Dillard, 637 F.3d 380 (D.C. Cir. 2011), where we
rejected similar Fourth Amendment claims brought by male
detainees against the very same Marshal Dillard, see id. at 382,
concluded that any Fourth Amendment rights Dillard might have
violated were insufficiently clearly established at the time of the
violation. Johnson, 780 F. Supp. 2d at 73–75. As for the claims
of Fifth Amendment Class members, the court, relying on
Ashcroft v. Iqbal, 556 U.S. 662 (2009), found no Equal
Protection violation because nothing in the record indicated that
Dillard intended to treat women differently from men. Johnson,
at 780 F. Supp. 2d at 79–81.

On appeal, class members press their claims against the
District and Dillard, but only in his personal capacity. We
review the district court’s grants of summary judgment de novo,
viewing the evidence in the light most favorable to class
members. See, e.g., Holcomb v. Powell, 433 F.3d 889, 895 (D.C.
Cir. 2006). We first consider whether class members may hold
the District liable for Dillard’s conduct. Then, taking the Fourth
and Fifth Amendment claims separately, we consider whether
Dillard is entitled to qualified immunity.
 6
II.
Members of both the Fourth and Fifth Amendment Classes
seek to hold the District of Columbia liable under 42 U.S.C. §
1983 for the Superior Court Marshal’s conduct. As the Supreme
Court explained in Monell v. Department of Social Services, 436
U.S. 658 (1978), municipalities can be held liable under section
1983 only “when execution of a government’s policy or custom,
whether made by its lawmakers or by those whose edicts or acts
may fairly be said to represent official policy, inflicts the injury.”
Id. at 694. Conceding that no express District policy gave rise to
their injuries, class members offer two theories—the “organic
theory” and the “entrustment theory”—to explain how the
District might nonetheless be liable under section 1983 for
Dillard’s conduct.

Organic Theory
According to this theory, the Superior Court Marshal’s
Office is “part of the organic government of the District of
Columbia just as much as the Mayor, City Council and Superior
Court.” Appellants’ Br. 44 (emphasis omitted). Claiming that
the Superior Court is best understood as a state court, not a
federal court, class members argue that the Superior Court
Marshal derives his authority from “the inherent powers of the
Superior Court.” Appellants’ Br. 50. Insofar as the Superior
Court Marshal “handles pre-presentment arrestees . . . as the
policy maker for the District, by delegation from the
policymaker, or pursuant to a widespread custom or practice in
which the District of Columbia acquiesced,” Appellants’ Br. 44,
class members urge us to find the District liable under section
1983 for any unconstitutional acts of the Marshal.

But we agree with the district court that the Superior Court
Marshal is not a District official. Rather, the Superior Court
 7
Marshal “logically and expressly derives” his authority from
federal law, specifically the Anti-Drug Abuse Act of 1988. See
Johnson, 584 F. Supp. 2d at 90. Pursuant to that Act, “[t]he
President shall appoint, by and with the advice and consent of
the Senate, a United States marshal for each judicial district of
the United States and for the Superior Court of the District of
Columbia.” 28 U.S.C. § 561(c). Like all other U.S. Marshals, the
Superior Court Marshal “shall be an official of the Service and
shall serve under the direction of the Director,” id., who “shall
supervise and direct the United States Marshals Service in the
performance of its duties.” 28 U.S.C. § 561(g). Each U.S.
Marshal serves a four year term unless he resigns or is removed
by the President. 28 U.S.C. § 561(d). Thus, Dillard, as Superior
Court Marshal, was appointed and confirmed through a federal
process, served as part of a federal agency under the direction of
a federal official, and at all times could have been removed by
the President. Under these circumstances, Dillard was hardly as
much “part of the organic government of the District of
Columbia . . . as the Mayor.” Appellants’ Br. 44 (emphasis
omitted).

Acknowledging that the Superior Court Marshal qualifies as
a federal official for purposes of appointment and removal, class
members nonetheless argue that he derives no authority from
federal law. But why would Congress create a U.S. Marshal’s
office for a particular court and yet deny the holder of that office
any federal authority? Class members have no answer, nor do
we. Instead, class members find this bizarre result implicit in
two provisions of the Anti-Drug Abuse Act. They first point to
section 566(a), which outlines the “primary role and mission of
the United States Marshals Service.” 28 U.S.C. § 566(a). Under
this section, U.S. Marshals “provide for the security and . . .
obey, execute, and enforce all orders of the United States
District Courts, the United States Courts of Appeals, the Court
 8
of International Trade, and the United States Tax Court, as
provided by law.” Id. As class members emphasize, this list does
not include the Superior Court. Second, class members seize on
the word “Federal” in section 566(e)(1), which authorizes the
United States Marshals Service “to provide for the personal
protection of Federal jurists, court officers, witnesses, and other
threatened persons.” 28 U.S.C. § 566(e)(1). Class members
argue that inclusion of the word “Federal” makes the entire
subsection inapplicable to the Superior Court because, according
to them, the Superior Court is equivalent to a state court. From
these two provisions, class members conclude, “[T]he Act
addresses the USMS’s role regarding the federal courts (as
opposed to addressing at all the local D.C. Courts).” Appellants’
Br. 48.

Class members’ reliance on these provisions is misplaced.
For one thing, section 566(a) lays out the “primary”—not
“exclusive”—“role and mission of the United States Marshals
Service.” Nothing in section 566(a) suggests that Congress
intended to deprive the Superior Court Marshal of all federal
authority within the court Congress designated that Marshal to
serve. Moreover, given the dual federal/state status of Superior
Court judges, Congress would have had to have used more
specific language than “Federal jurist” to exclude them from
section 566(e)(1)’s authorizations, especially given Congress’s
decision to create the office of Superior Court Marshal. See
United States v. Stewart, 104 F.3d 1377, 1391 (D.C. Cir. 1997)
(noting that D.C. Superior Court judges are “Article I . . . judges,
whom Congress intended to be analogous to state court judges”
and holding that a federal statute “authorized [them] to act as
federal committing magistrates”). In any event, the statutory
scheme gives the District no power to exercise authority over or
delegate authority to the Superior Court Marshal. Instead, the
statute clearly says that the Superior Court Marshal serves at the
 9
“direction” of the United States Marshals Service. See 28 U.S.C.
§ 561(c). Thus, any authority Dillard exercised as Superior
Court Marshal, whether delegated by the United States Marshals
Service or provided directly by statute, was federal in nature.

Because Dillard, as Superior Court Marshal, was at all times
a federal official acting under color of federal law, the organic
theory provides no basis for finding the District liable under
section 1983.

Entrustment Theory
Under this theory, the District exhibited deliberate
indifference to Dillard’s unconstitutional conduct by continuing
to send pre-presentment arrestees to the Superior Court cellblock
despite knowing they would be strip searched there. Holding a
municipality liable for its deliberate indifference requires more
than “a showing of simple or even heightened negligence.”
Board of County Commissioners v. Brown, 520 U.S. 397, 407
(1997); see also City of Canton v. Harris, 489 U.S. 378, 390
(1989) (requiring that plaintiffs show that the municipality’s
policy was “so likely to result in the violation of constitutional
rights,” and the need to change that policy “so obvious,” that
policymakers “can reasonably be said to have been deliberately
indifferent to the need”). To prevail on this theory, class
members would have to show at least that the District had actual
or constructive notice of unconstitutional strip search practices,
as well as discretion to stop sending pre-presentment arrestees to
the Superior Court Marshal. See Warren v. District of Columbia,
353 F.3d 36, 36–39 (D.C. Cir. 2004) (“[F]aced with actual or
constructive knowledge that its agents will probably violate
constitutional rights, the city may not adopt a policy of
inaction.”).
 10
We agree with the district court that even assuming that the
District had notice of the strip search practices and that those
practices were unconstitutional, the District lacked the discretion
necessary for class members to prevail. Given that Dillard was at
all times acting under color of federal law, see supra 6–9, the
District had no authority to prevent him from conducting strip
searches of arrestees upon their arrival at the Superior Court.
Relying on two circuit court decisions, one by this Court and one
by the Sixth Circuit, see Warren, 353 F.3d 36; Deaton v.
Montgomery County, 989 F.2d 885 (6th Cir. 1993), for the
proposition that “[i]t does not matter if the transferor has no
control over the facility in which it places its prisoners,”
Appellants’ Br. 34, class members believe they can prevail even
if Dillard was at all times a federal official acting under color of
federal law. In each of the cited cases, however, the municipality
had contracted to send its prisoners to a penal facility; even
though the municipality exercised no direct control over policies
and practices at the facility, it retained power to cancel the
contract in the event of constitutional violations. See Warren,
353 F.3d at 37; Deaton, 989 F.2d at 885. Here, by contrast,
nothing in the record suggests that the District could have held
presentment hearings somewhere other than the Superior Court.
And although class members insist that the District had statutory
authority to bypass the Superior Court Marshal and deliver pre-
presentment arrestees directly to Superior Court judges, the
statutory provisions class members rely on are ambiguous at
best. Thus, the District’s failure to embrace class members’
statutory interpretation hardly demonstrates “deliberate
indifference to the rights” of arrestees. See Canton, 489 U.S. at
388. Class members also claim that the District would lack
authority to issue citations or release arrestees on bond if it had
to deliver all arrestees to the Superior Court Marshal. But the
Marshal exercises federal authority over persons actually
delivered to the Superior Court for presentment, not over
 11
everyone the Metropolitan Police Department detains. And
while the District might issue citations for minor offenses such
as traffic violations, arrestees have a right to a presentment
hearing. See D.C. SUPERIOR CT. R. CRIM. P. 5(a); see also
County of Riverside v. McLaughlin, 500 U.S. 44, 53 (1991)
(“[W]arrantless arrests are permitted but persons arrested
without a warrant must promptly be brought before a neutral
magistrate for a judicial determination of probable cause.”
(citing Gerstein v. Pugh, 420 U.S. 103, 114 (1975))).

Because neither the organic nor the entrustment theory
transforms the Superior Court Marshal into a District
policymaker for purposes of section 1983, the District cannot be
held liable for Dillard’s conduct. We thus turn to the question of
Dillard’s liability.

III.
Relying on Bivens v. Six Unknown Named Agents, 403 U.S.
388 (1971), Fourth and Fifth Amendment Class members bring
constitutional tort claims against Dillard in his personal capacity.
In response, Dillard argues that he is entitled to qualified
immunity. While carrying out their official duties, federal
officials enjoy qualified immunity from damages suits in order
to “shield them from undue interference with their duties and
from potentially disabling threats of liability.” Harlow v.
Fitzgerald, 457 U.S. 800, 807 (1982). To overcome a claim of
qualified immunity, plaintiffs must show both that an official
“violated a constitutional right” and that “the right was clearly
established” at the time of the violation. Saucier v. Katz, 533
U.S. 194, 200–01 (2001). The Supreme Court has made clear
that courts may address the two stages of the qualified immunity
analysis in either order. See Pearson v. Callahan, 555 U.S. 223,
236 (2009) (“The judges of the district courts and the courts of
appeals should be permitted to exercise their sound discretion in
 12
deciding which of the two prongs of the qualified immunity
analysis should be addressed first in light of the circumstances in
the particular case at hand.”). Grateful for that flexibility, we
address the claims of the two classes in turn.

The Fourth Amendment Class
Fourth Amendment Class members urge us to find that “the
Fourth Amendment prohibits blanket strip searches of
[detainees] arrested on minor charges,” at least where no
detainees were held in the general population and “there [is] no
significant contraband problem.” Appellants’ Br. 17, 26–28.
Like the district court, however, we have no need to reach the
merits of this contested constitutional question in order to find
Dillard entitled to qualified immunity. Under our decision in
Bame v. Dillard, 637 F.3d 380, 384 (D.C. Cir. 2011), any Fourth
Amendment right Dillard might have violated was insufficiently
clearly established at the time. See Pearson, 555 U.S. at 237
(approving of addressing only the second stage of the qualified
immunity analysis where “it is plain that a constitutional right is
not clearly established but far from obvious whether in fact there
is such a right”).

In Bame, this Court, addressing only the “clearly
established” stage of the qualified immunity analysis, found
Dillard entitled to qualified immunity for Fourth Amendment
claims brought by male plaintiffs—claims otherwise virtually
indistinguishable from those brought by Fourth Amendment
Class members in this case. Like class members, Bame plaintiffs
were arrested for non-drug, non-violent offenses, held
temporarily at “various police holding facilities,” brought to the
Superior Court “to await disposition of the charges against
them,” “strip searched upon arrival” at the Superior Court
cellblock, placed together in holding cells, and released directly
from the Superior Court cellblock without spending any time in
 13
general jail populations. Bame, 637 F.3d at 382–83. The strip
searches at issue in Bame occurred in September 2002, near the
end of the Fourth Amendment Class period. Id. at 383.

According to Bame plaintiffs, by the time Dillard had
implemented the challenged policies, the circuits had reached a
“consensus” that policies similar to Dillard’s violated the Fourth
Amendment. See Bame, 637 F.3d at 385. But in Bell v. Wolfish,
441 U.S. 520 (1979), the Supreme Court rejected a Fourth
Amendment challenge to a penal strip search policy and
instructed courts evaluating such challenges to “consider the
scope of the particular intrusion, the manner in which it is
conducted, the justification for initiating it, and the place in
which it is conducted.” Id. at 559. In Bame, we held that Dillard,
balancing these factors, could reasonably have concluded that
his strip search policy was constitutional. Bame, 637 F.3d at 386
(“Clearly, it was reasonable for Dillard, like the courts of appeal
that reached the issue after 2002, to believe strip searching all
male arrestees was consistent with the law as set forth in Bell
[and United States Marshals Service policy statements].”).
Although Bame plaintiffs, like class members here, emphasized
that they were charged with minor non-drug, non-violent
offenses, we noted that “[t]he policy that the Court categorically
upheld in Bell applied to all inmates, including those charged
with lesser offenses and even those charged with no wrongdoing
at all who were being held as witnesses in protective custody.”
Id. at 387 (internal quotation marks omitted). Although Bame
plaintiffs, like class members here, emphasized the short
duration of their stay at the Superior Court cellblock, we
responded that “[c]ontrary to the plaintiffs’ contention, nothing
whatsoever in Bell suggests its holding is limited to overnight
detention facilities.” Id. Although Bame plaintiffs, like class
members here, insisted that they never came into contact with
detainees housed in general jail populations, we emphasized that
 14
“Bell [nowhere] mention[ed], let alone rel[ied] upon,
[intermingling with other detainees] as a reason for upholding
the strip searches. In any event, arrestees held at the Superior
Court were in fact commingled with other arrestees in holding
cells; no one suggests each arrestee was put in a separate cell.”
Id. And finally, although Bame plaintiffs, like class members
here, challenged the sufficiency of Dillard’s contraband
justification, we concluded that “the record here substantiates
Dillard’s point that the Superior Court had a persistent problem
with contraband being smuggled into the cellblock, the very
reason for strip searches.” Id.

Fourth Amendment Class members attempt to distinguish
Bame in three ways. First, they point to a consent agreement—
the so-called Morgan Order—in which the District promised
“not [to] conduct strip or squat searches of female police cases
housed at the District of Columbia Detention Facility in the
absence of a reasonable suspicion.” See Morgan v. Barry, 596 F.
Supp. 897, 898 (D.D.C. 1984) (explaining the agreement)
(internal quotation marks omitted). According to class members,
this agreement, which protects only female arrestees and thus
was not at issue in Bame, put Dillard on notice that strip
searching class members would violate their Fourth Amendment
rights. In the Morgan Order, however, the District never
concedes that any particular strip search policies violate the
Fourth Amendment. Moreover, the Morgan Order binds only
the District and its agents at the District of Columbia Detention
Facility, not Dillard, a federal official in charge of the Superior
Court cellblock.

Second, Fourth Amendment Class members claim that in
Bame we addressed the constitutionality of strip searches
without “individualized, reasonable suspicion” whereas they
focus on “the right of arrestees, not entering general population,
 15
to be free from strip searches prior to presentment to the court.”
Appellants’ Br. 70. Contrary to class members’ assertion,
however, in Bame we expressly rejected the notion that Bell
limited penal strip searches to overnight, general population
facilities. See Bame, 637 F.3d at 387.

Third, Fourth Amendment Class members argue that “any
contraband problem that may have existed in the Superior Court
cellblock had evaporated by 1999 or 2000,” Appellants’ Br. 29,
and that the Superior Court Marshal’s failure to strip search all
men belies the asserted effectiveness of strip searches. But in
Bame we evaluated similar evidence of contraband and found
that the Superior Court suffered from a “persistent problem with
contraband” as late as 2002. 637 F.3d at 387. In any event, as the
Supreme Court observed in Bell, a dearth of recovered
contraband “may be more a testament to the effectiveness of this
search technique as a deterrent.” Bell, 441 U.S. at 559. And even
if deputy marshals did not strip search all men, that hardly
compels the conclusion that Dillard understood strip searches to
be generally ineffective.

Thus, like the district court, we see no daylight between the
claims we rejected in Bame and the ones Fourth Amendment
Class members press here. See Johnson, 780 F. Supp. 2d at 74–
75 (“[T]he claims addressed in Bame and the instant case cannot
be distinguished in any meaningful way.”). Although class
members obviously disagree with Bame, that decision is binding
on us. As a result, Dillard is entitled to qualified immunity
because the Fourth Amendment right he is accused of violating
was not clearly established at the time of any violation.

The Fifth Amendment Class
Fifth Amendment Class members maintain that the strip
search gender disparity violated the Fifth Amendment’s equal
 16
protection guarantee. We resolve these claims, unlike the claims
of the Fourth Amendment class, at the first stage of the qualified
immunity analysis by examining whether Dillard violated class
members’ Fifth Amendment rights.

The parties agree that Ashcroft v. Iqbal, 556 U.S. 662
(2009), controls this issue. In Iqbal, the Supreme Court
addressed “[t]he factors necessary to establish a Bivens violation
. . . [w]here the claim is invidious discrimination in
contravention of the . . . Fifth Amendment[].” Id. at 676.
Because “purposeful discrimination requires more than ‘intent as
volition or intent as awareness of consequences,’” id. (quoting
Personnel Administrator of Massachusetts v. Feeney, 442 U.S.
256, 279 (1979)), supervisors face no liability for mere
“knowledge and acquiescence in their subordinates’ use of
discriminatory criteria,” id. at 677 (internal quotation marks
omitted). Instead, under Iqbal, plaintiffs must show that
supervisors acted with discriminatory purpose. Id. (“[P]urpose
rather than knowledge is required . . . .”). “[T]he plaintiff must
plausibly plead and eventually prove not only that the official’s
subordinates violated the Constitution, but that the official by
virtue of his own conduct and state of mind did so as well.”
Dodds v. Richardson, 614 F.3d 1185, 1198 (10th Cir. 2010).

Acknowledging that they “must prove Dillard intended to
discriminate against women arrestees,” Fifth Amendment Class
members argue that Dillard “intended a policy, formal or
informal, of women-only strip searches.” Appellants’ Br. 52. For
his part, Dillard insists that his policy throughout the class
period required “every prisoner”—both male and female—to go
through the strip search process upon arrival at the Superior
Court cellblock. See, e.g., Dillard Bame Deposition 89:6–98:3.
Although class members point to some evidence from which we
might infer that Dillard knew deputies were implementing his
 17
gender neutral policy in a gender imbalanced manner, plenty of
other evidence suggests that Dillard was largely missing in
action throughout the class period. But even assuming class
members could show that Dillard knew what was going on at the
cellblock, they have pointed to no evidence from which we
could infer that Dillard himself intended to treat women
differently from men. For instance, class members cite a former
deputy marshal’s testimony that the practice in the cellblock was
to strip search all female detainees but not all males because of
certain “differences in the anatomy.” Shealey Deposition 158:8–
162:22. But that same former deputy went on to testify that any
disparate treatment did not reflect Dillard’s policy:
“[Supervisors] put [no] emphasis on females. They basically
[made] sure that everybody was thoroughly searched coming
into that cell block, and that we had policies and procedures in
place to conduct those searches to make sure that no contraband
came into those cell blocks.” Shealey Deposition 164:7–13. This
is hardly an isolated example. Indeed, class members cite no
testimony by any subordinate indicating that the gender disparity
resulted from Dillard’s instruction or intention.

Class members also claim that the United States Marshals
Service admitted in interrogatory responses in two other cases
that despite Dillard’s assertions “the ‘more customized’ policy
was to stop strip searching males and to continue strip searching
females.” Appellants’ Br. 60. But these responses, both written
by the same deputy marshal who testified that supervisors “put
[no] emphasis on females,” describe the “practice” among
deputies at the cellblock, not Dillard’s policies. Helton
Interrogatory Response 4; Clifton Interrogatory Response 5.

In a final effort to demonstrate discriminatory purpose, class
members ask us to grant them an adverse inference from missing
evidence. Specifically, they claim that although Dillard prepared
 18
a written policy statement during the class period laying out
Superior Court operating procedures, he failed to produce a copy
during discovery. “Because defendant never acknowledged or
produced Dillard’s written search policy,” class members assert,
“plaintiffs are entitled to an adverse inference that the policy was
to strip search all female prisoners but not males.” Appellants’
Br. 58. Dillard, however, has not only consistently denied the
existence of any undisclosed policy statement but has also
maintained that he left behind all official documents at the end
of his term as Superior Court Marshal because “they were
government property.” Dillard Br. 65. Even assuming an
undisclosed policy statement once existed, an adverse inference
from missing evidence is appropriate only “if it is peculiarly
within the power of one party to produce the evidence . . . . The
party complaining of the missing evidence bears the burden of
demonstrating that it is peculiarly in the opposing party’s
control.” Czekalski v. LaHood, 589 F.3d 449, 455 (D.C. Cir.
2009) (internal quotation marks omitted). Since class members
nowhere dispute Dillard’s explanation for why he left behind all
official documents, they have failed to show that the policy
statement was ever “peculiarly within [Dillard’s] power . . . to
produce” or “peculiarly in [Dillard’s] control.” Id.

We thus agree with the district court that “there is no
circumstantial or direct evidence that Marshal Dillard
purposefully directed that women and men be searched
differently at the Superior Court cellblock.” Johnson, 780 F.
Supp. 2d at 81. Under Iqbal, then, Dillard is entitled to qualified
immunity because class members have failed to show that he
violated their Fifth Amendment rights.
 19
IV.
For the foregoing reasons, we affirm.

So ordered.
 ROGERS, Circuit Judge, concurring in part and concurring
in the judgment. I write principally because this court, as in ten
other circuits, should “clearly establish[],” Harlow v. Fitzgerald,
457 U.S. 800, 818–19 (1982), that indiscriminate strip searching
of individuals awaiting presentment on non-violent, non-drug
offenses who are not held in the general population is
unconstitutional under the Fourth Amendment to the United
States Constitution in the absence of reasonable suspicion an
individual possesses contraband or weapons. See Bame v.
Dillard, 637 F.3d 380, 388 (D.C. Cir. 2011) (Rogers, J.,
dissenting).

I.

In the absence of en banc review, Bame, 637 F.3d 380, is
the law of the circuit, see LaShawn A. v. Barry, 87 F.3d 1389,
1395 (D.C. Cir. 1996) (en banc). In Bame, the court applied the
doctrine of constitutional avoidance and did not decide whether
a Fourth Amendment violation occurred. See Bame, 637 F.3d
at 384 (citing Pearson v. Callahan, 555 U.S. 223 (2009)); cf.
Op. at 12. Since Bame was decided the Supreme Court in
Camreta v. Greene, ––– U.S. –––, 131 S. Ct. 2020 (2011), has
underscored the undesirability of the “flexibility,” Op. at 12,
afforded to courts under Pearson v. Callahan to avoid deciding
whether a constitutional violation has occurred where the
defendant is entitled to qualified immunity. Not deciding the
constitutional question “threatens to leave standards of official
conduct permanently in limbo.” Camreta, 131 S. Ct. at 2031.
By proceeding directly to the immunity question, not only do
“[c]ourts fail to clarify uncertain questions, fail to address novel
claims, fail to give guidance to officials about how to comply
with legal requirements,” id., but the failure to decide
constitutional questions “may frustrate ‘the development of
constitutional precedent’ and the promotion of law-abiding
behavior,” id. (quoting Pearson, 555 U.S. at 237).
 2

Also since Bame, six Justices of the Supreme Court have
expressed unease with the type of indiscriminate strip searching
engaged in by the Superior Court Marshal’s Office that is
challenged here and was challenged in Bame. See Florence v.
Bd. of Chosen Freeholders of Cnty. of Burlington, ––– U.S. –––,
132 S. Ct. 1510, 1523 (2012) (Roberts, CJ., concurring); id. at
1524 (Alito, J., concurring); id. at 1525 (Breyer, J., joined by
Ginsburg, Sotomayor, and Kagan, JJ., dissenting). The Supreme
Court’s expression of unease is not new, appearing even in the
context of post-arraignment defendants held in the general
prison population. See Bell v. Wolfish, 441 U.S. 520, 558 (1979)
(“[T]his practice instinctively gives us the most pause.”).

Nearly every other circuit court of appeals (and the District
of Columbia’s highest court, see United States v. Scott, 987 A.2d
1180, 1196–97 (D.C. 2010)) has understood that the humiliating
and essentially non-productive practice of strip searching pre-
arraignment arrestees not held in the general population is an
unreasonable search under the Fourth Amendment in the
absence of reasonable suspicion. See Bame, 637 F.3d at 391–92,
395 (Rogers, J., dissenting) (citing cases from the First, Second,
Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, and Eleventh
Circuit Courts of Appeals); see Powell v. Barrett, 541 F.3d
1298, 1300–02 (11th Cir. 2008) (en banc); Bull v. City and Cnty.
of San Francisco, 595 F.3d 964, 980–81 (9th Cir. 2010) (en
banc). The Third Circuit has yet to address the issue, rejecting
only a Fourth Amendment challenge to blanket strip searches
upon arrestees admission to the general jail population. See
Florence v. Bd. of Chosen Freeholders of Cnty. of Burlington,
621 F.3d 296, 298–99, 311 (3d Cir. 2010). Evidence before the
courts and in the instant case confirms that modern technology
and law enforcement experience have shown that indiscriminate
strip searching of non-violent, non-drug pre-arraignment
arrestees after the use of metal detectors and patdowns to locate
contraband rarely yields additional security benefits. See, e.g.,
 3

Roberts v. State of R.I., 239 F.3d 107, 112 (1st Cir. 2001); see id.
(citing cf. Mary Beth G. v. City of Chicago, 723 F.3d 1263,
1272–73 (7th Cir. 1983)); Appellants’ Ex. 410 (compiling
incident reports). Contrary court findings involve the prison
environment where smuggling of contraband “is all too common
an occurrence” and deference is due to the policy judgments of
prison administrators. Bell v. Wolfish, 441 U.S. at 559; see also
Florence, 621 F.3d at 310.

Members of the Fourth Amendment class here were not
being held in the general population with post-arraignment
arrestees and strip searches in their circumstances illustrate one
aspect of the Justices’ unease in Florence, 132 S. Ct. at 1523,
1524, 1525. Applying the canon of constitutional avoidance in
this circuit is unwarranted, particularly in view of the recurring
court challenges to indiscriminate strip searching by the U.S.
Marshals Service in the Nation’s Capital, the frequent situs of
demonstrations as in Bame. See Helton v. United States, 191 F.
Supp. 2d 179 (D.D.C. 2002); Clifton v. United States, No. 02-
0578 (D.D.C. Mar. 26, 2002); see also Morgan v. Dist. of
Columbia, No. 81-1419 (D.D.C. July 22, 1981), applied in
Morgan v. Barry, 596 F. Supp. 897, 898–99 (D.D.C. 1984). The
United States advises that the U.S. Marshals Service has
abandoned the challenged strip searching policy and practice.
See Appellee Dillard Br. 59 n.17; Op. at 2. This does not ensure
that the practice will not be revived, much less provide guidance
for new policies and practices, promote law-abiding behavior,
or justify the court in not “clearly establish[ing]” that the Fourth
Amendment rights of the appellant class were violated by the
Superior Court Marshal. Joining the ten other circuit courts of
appeals, I would hold that the indiscriminate strip searching of
the Fourth Amendment class in the absence of reasonable
suspicion violated the Fourth Amendment.
 4

II.

Otherwise, I generally agree that appellants’ claims fail.

A. The Superior Court Marshal is a federal official who
was acting under color of federal law, and the District of
Columbia cannot be held liable for the challenged actions of
Marshal Dillard. Op. at 9.

Somewhat less persuasive is the District of Columbia’s
suggestion that it “had no choice,” Appellee D.C. Br. 41, not to
turn over to the Superior Court Marshal for presentment
individuals arrested by the Metropolitan Police Department,
regardless of whether the Marshal’s strip searching practices
violated the Fourth Amendment rights of non-violent, non-drug
pre-arraignment arrestees. The District of Columbia can sue as
well as be sued, see D.C. Code § 1-102, and can seek the aid of
the courts to protect individuals in its custody. Appellants point
to the District of Columbia’s obligation to ensure the
enforcement of the order in Morgan v. Barry, 596 F. Supp. 897,
898 (D.D.C. 1984), that barred its own officers from strip
searching female arrestees housed at the District of Columbia
Detention Facility in the absence of a “reasonable suspicion that
a weapon, contraband or evidence of a crime are concealed on
the person or in the clothing of the arrestee which the District [of
Columbia] or its agents reasonably believe can only be
discovered by a strip or squat search.” Cf. Washington v. United
States, 594 A.2d 1050, 1052 (D.C. 1991) (quoting MPD Gen.
Order 502.1, Processing Prisoners 3, § B(5) barring body cavity
searches of arrestees by police officers). The District of
Columbia did not seek such aid on behalf of the Fourth
Amendment class, but at the time there was neither an
outstanding order with respect to the Superior Court Marshal,
nor a decision by this court (or the D.C. Court of Appeals),
“clearly establish[ing]” that blanket strip searching of pre-
 5

arraignment arrestees like the Fourth Amendment class is
unreasonable and a violation of the Fourth Amendment.

B. With regard to the constitutional challenges, because
Bame, 637 F.3d at 386, is the law of the circuit Marshal Dillard
is entitled to qualified immunity on the Fourth Amendment
claims. Op. at 12. Given appellants’ agreement that Ashcroft v.
Iqbal, 556 U.S. 662 (2009), is controlling at the summary
judgment stage of the proceedings, Op. at 16, the Fifth
Amendment claims fail for lack of evidence of a constitutional
violation. Op. at 18.

In that regard, the court observes that Marshal Dillard was
“largely missing in action throughout the class period.” Op. at
16. Although Dillard agreed that there was no reason to treat
male and female arrestees differently, see Dillard Dep. 77:1–7,
on his watch his deputies indiscriminately strip searched only
women. Op. at 3. Summary judgment presents no occasion for
the court to weigh the evidence. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). A reasonable jury could
find that knowing acquiescence to continuing violations of a
plaintiff’s Equal Protection rights by one’s deputies amounts to
purposeful conduct and infer, in the absence of a legitimate non-
invidious reason for treating women differently than men, a
defendant’s discriminatory purpose. Cf. Vill. of Arlington
Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266–67
(1977); cf. also Primas v. Dist. of Columbia, 719 F.3d 693,
697–98 (D.C. Cir. 2013); Evans v. Sebelius, 716 F.3d 617,
620–22 (D.C. Cir. 2013). Dillard repeatedly swore, however,
that he believed men and women were being strip searched in
the same manner, see Dillard Dep. 96:10–97:8, 99:8–101:12,
and the Fifth Amendment class fails to proffer evidence from
which a reasonable jury could find that he had a women-only
strip search policy or knew of the disparate treatment by his
deputies. Op. at 16–18. Absent evidence that Dillard either had
 6

a blanket policy for strip searching only female arrestees, or
knew that his deputies were doing so indiscriminately and did
nothing to stop them, a discriminatory purpose by Dillard cannot
reasonably be inferred.