In February, the Ninth Circuit ruled that police have qualified immunity from civil-rights claims based on a department policy of strip-searching all arrestees (not convicts, just arrestees) who will be put into "general population." Bull v. City and County of San Francisco, 2010 WL 431790 (9th Cir. Feb. 9, 2010). The court held individualized suspicion was not required because of the "legitimate penological interests" in keeping contraband out of jails. (There is, of course, the obligatory list of items found and confiscated during such strip searches, a list that is partly amusing and partly terrifying.)
The lower court had ruled that a blanket arrestee-strip-search policy was unconstitutional, apparently harking back to those enchanting days of yore when many Americans actually had constitutional rights. The Ninth Circuit used to feel the same way about such policies, but in Bull it reversed itself. The lower court had held that certain groups of people could not be strip-searched, namely those not arrested for crimes involving weapons, controlled substances, or "violence." Chief Judge Alex Kozinski concurred in the opinion striking this down, writing separately to argue that only the Supreme Court can carve out sub-classes of individuals entitled to preferred treatment. Courts have trouble agreeing on such classifications, he said, citing cases showing they are all over the map as to what is a "crime of violence":
[Courts] often disagree. See, e.g., United States v. Chambers, 473 F.3d 724, 726 (7th Cir. 2007) (escape is a crime of violence); United States v. Piccolo, 441 F.3d 1084, 1088 (9th Cir. 2006) (no it’s not); United States v. Asberry, 394 F.3d 712, 715-16 (9th Cir. 2005) (statutory rape is a crime of violence); id. at 722 (Bea, J., concurring) (no way); United States v. Wenner, 351 F.3d 969, 974 (9th Cir. 2003) (burglary is not a crime of violence); id. at 977 (Wallace, J., dissenting) (is too); United States v. Johnson, 448 F.3d 1017, 1018 (8th Cir. 2006) (grand theft auto is); Von Don Nguyen v. Holder, 571 F.3d 524, 525 (6th Cir. 2009) (au contraire); Malta-Espinoza v. Gonzales, 478 F.3d 1080, 1084 (9th Cir. 2007) (stalking isn’t); id. at 1088 (Duffy, J., dissenting) (“I respectfully dissent.”); United States v. Saavedra-Velazquez, 578 F.3d 1103, 1110 (9th Cir. 2009) (Reinhardt, J.) (attempted robbery is); id. (Reinhardt, J., specially concurring) (or is it?); United States v. Trinidad-Aquino, 259 F.3d 1140, 1146 (drunk-driving-resulting-in-bodily-injury is a gentle crime); id. at 1147 (Kozinski, J., dissenting) (Bull!).It is so rare to see a string cite with any life in it at all, let alone any humor, that I thought I should pass this on, at least for that reason.
On reflection, though, it also seems important to know that if arrested you can be strip-searched for any reason, or no reason, really, depending on where the police decide to put you between the arrest and when you are booked and released. If their decision would bring you into contact with general population, it's cavity-search time, whether or not police can articulate any other reason why your cavities might need inspection. Yet another reason to rethink drinking and driving.
Link: Legal Pad
