United States Court of Appeals For the First Circuit
No. 02-1568
ANGELA SAVARD, ET AL.,
Plaintiffs, Appellants,
v.
STATE OF RHODE ISLAND, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Mary M. Lisi, U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin and Bownes, Senior Circuit Judges.
Gregory A. Belzley with whom Frost Brown Todd LLC, Thomas W. Kelly and the Law Offices of Thomas W. Kelly were on brief for appellants. Rebecca Tedford Partington, Deputy Chief, Civil Division, with whom Sheldon Whitehouse, Attorney General, was on brief for appellees.
February 11, 2003 BOWNES, Senior Circuit Judge. Plaintiffs-appellants were
all arrested in Rhode Island for non-violent, non-drug related
minor offenses. After their arrest, the plaintiffs were taken to
a Rhode Island prison and subjected to unconstitutional strip and
visual body cavity searches. The plaintiffs brought suit against
the defendants-appellees, who include the State of Rhode Island and
numerous prison officials, pursuant to 42 U.S.C. § 1983 and various
state laws for damages sustained as a result of the illegal
searches. The district court granted the defendants' motion for
summary judgment on the ground that the defendants were entitled to
qualified immunity, and therefore shielded from lawsuits seeking
damages for their actions. We reverse.
I. BACKGROUND
The state of Rhode Island operates the Adult Correctional
Institution ("ACI"), which consists of seven separate prison
facilities. One of those facilities receives all males committed
to the custody of Rhode Island's Department of Corrections,
regardless of the nature of an arrestee's offense. This facility
houses not only pretrial arrestees, but also newly sentenced
inmates awaiting transport to other facilities, pretrial protective
custody detainees, and sentenced inmates under protective custody.
All of these individuals are at times commingled with each other,
except for those held in protective custody. Even then, inmates
held in protective custody use the same facilities as other
-2- detainees, but at different times. Females are processed through
a different ACI facility. At the female facility, arrestees are
commingled with either sentenced inmates or inmates awaiting trial.
At the times material hereto, Rhode Island maintained
written policies that required new arrestees admitted into ACI to
undergo strip searches and visual body cavity searches.1 These
searches included "examination of hair, arms, hands, ears, mouth,
nose; visual examination of groin and rectum; toes and soles of
feet." As part of the searches, males were required to "lift their
penises and testicles on the officer's command to provide a clear
view of the groin area." Both male and female detainees were
required "to bend over and spread the rectum to provide a clear
view of the area."
On April 20, 1999, Craig Roberts ("Roberts") was a
passenger in a car stopped by the police for expired registration
stickers. A check of police computers revealed that Roberts was
the subject of an "outstanding body attachment," a type of writ
issued by a magistrate in Rhode Island family court. The police
frisked Roberts, but found no weapons or contraband. Although
Roberts produced a carbon-copy of a family court order withdrawing
1 A "strip search" is a visual inspection of an inmate's naked body. A "visual body cavity search" is a strip search that includes the visual inspection of an inmate's anal and genital areas. See Blackburn v. Snow, 771 F.2d 556, 561 n.3 (1st Cir. 1985).
-3- the body attachment, the police arrested Roberts and took him to
ACI.
Upon arriving at ACI, Roberts was subjected to a strip
and visual body cavity search pursuant to the written policies
described above. No weapons or contraband were found. After the
search, Roberts was placed in a segregated cell. Later that day,
Roberts was subjected to another strip and visual body cavity
search in preparation for his transportation to the Garrahy
Judicial Complex. Again, no weapons or contraband were found.
After arriving at the complex, Roberts' carbon-copy of the order
withdrawing the body attachment was shown to a sheriff and Roberts
was released.
In 1999, Roberts brought a complaint in the district
court alleging that the strip and visual body cavity searches
required by Rhode Island's written policies violated his Fourth
Amendment right to be free from unreasonable searches. Upon cross-
motions for summary judgment, the district court ruled that the
searches were unconstitutional and issued an order enjoining Rhode
Island from conducting searches in accordance with those written
policies. Roberts v. Rhode Island, 175 F. Supp.2d 176, 183 (D.R.I.
2000). On appeal, we affirmed the district court's ruling.
Roberts v. Rhode Island, 239 F.3d 107, 113 (1st Cir. 2001).
In 2000, Roberts and other similarly situated individuals
brought a separate action in the district court against Rhode
-4- Island and various prison officials alleging that the searches
violated their constitutional rights and seeking damages under 42
U.S.C. § 1983, state tort law, and state statutory law. Like
Roberts, the new plaintiffs all claimed they were arrested for non-
violent, non-drug related minor offenses and subjected to strip and
visual body cavity searches at ACI prior to March 17, 2000. By way
of example, one of the new plaintiffs, George Barber, loaned his
car to his son in 1993 and the son received a traffic ticket that
was never paid. Six years later, Barber was arrested because of
the unpaid ticket, held at ACI overnight and strip searched twice.
Another plaintiff, Stephanie Clark, called police for assistance
after an auto accident and was arrested because a computer check
showed an outstanding arrest warrant for her failure to appear at
a probation review. Clark had already finished her probation and
the warrant was issued in error. She was taken to ACI and strip
searched twice.
Upon the defendants' motion, the district court dismissed
Roberts' claim based on the doctrine of res judicata. The
defendants then moved for summary judgment as to the remaining
plaintiffs. The district court granted the motion on the ground
that qualified immunity shielded the defendants from damages.
According to the district court, the defendants were entitled to
qualified immunity because it was not the "clearly established" law
in this circuit that prison officials needed at least reasonable
-5- suspicion that arrestees for minor offenses were carrying weapons
or contraband before conducting strip and visual body cavity
searches.
II. DISCUSSION
We review a district court's grant of a motion for
summary judgment de novo; we examine the evidence in the light most
favorable to the non-moving party, and draw all reasonable
inferences in its favor. See Sands v. Ridefilm Corp., 212 F.3d
657, 660 (1st Cir. 2000). A motion for summary judgment should be
granted only if there is an absence of "sufficient evidence
favoring the nonmoving party for a jury to return a verdict for
that party." Id. at 61 (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249 (1986)).
"Qualified immunity specially protects public officials
from the specter of damages liability for judgment calls made in a
legally uncertain environment." Ryder v. United States, 515 U.S.
177, 185 (1995). The purpose of the qualified immunity doctrine is
to balance the need to vindicate constitutional rights against the
need to protect public officials from litigation that could inhibit
the discharge of their duties. See Anderson v. Creighton, 483 U.S.
635, 638 (1987). In balancing those needs, we use a three step
analysis. See Suboh v. Dist. Attorney's Office of the Suffolk
Dist., 298 F.3d 81, 90 (1st Cir. 2002).
-6- 1. Violation of a Constitutional Right
The first step is to ask whether the facts alleged by the
plaintiffs show that the conduct of the public officials violated
a constitutional right. See Saucier v. Katz, 533 U.S. 194, 201
(2001); Wilson v. Layne, 526 U.S. 603, 609 (1999). The district
court's decision, and our affirmance, in Roberts' earlier lawsuit
makes clear that Rhode Island's strip and visual body cavity
searches without reasonable suspicion violated a constitutional
right. See Roberts, 239 F.3d at 113; Roberts, 175 F. Supp.2d at
183.
2. Clearly Established
The second step is to ask "whether that right was clearly
established at the time of the alleged violation." Conn v.
Gabbert, 526 U.S. 286, 290 (1999). The purpose of this step is "to
ensure that before they are subjected to suit, officers are on
notice their conduct is unlawful." Saucier, 533 U.S. at 206. This
means that in the present case we must determine whether it was the
clearly established law that prison officials needed at least
reasonable suspicion before subjecting the plaintiffs to strip and
visual body cavity searches.
The district court held that the law was not clearly
established. In doing so, the district court based its decision
largely on our statement in Roberts' earlier appeal that "[t]he
institutional security concerns in play here fall somewhere
-7- between" other cases that have been decided by this court.
Roberts, 239 F.3d at 111. The district court concluded from our
statement that the unlawfulness of the ACI strip search policy
could not have been apparent to the defendants. After careful
examination, we think the district court assigned too much meaning
to our statement. The statement simply recognizes that the facts
involved in this case are different than those of previous cases.
The Supreme Court recently explained in Hope v. Pelzer, 122 S. Ct.
2508, 2516 (2002), that "officials can still be on notice that
their conduct violates established law even in novel factual
circumstances."
In the same vein, the district court concluded that cases
from other circuits were of "limited application" to its analysis
because they involved different factual predicates than the present
case. Specifically, the district court said that cases from other
circuits "do not involve institutions designed like the ACI, where
pretrial detainees are mixed in with the general prison
population." To support its conclusion, the district court relied
on reasoning from the Eleventh Circuit, which had developed a line
of decisions that found the law "clearly established" only when the
facts of previous cases were materially similar to the present
case. See Hope v. Pelzer, 240 F.3d 975, 981 (11th Cir. 2001);
Suissa v. Fulton County, Ga., 74 F.3d 266, 269-70 (11th Cir. 1996);
-8- Lassiter v. Alabama A&M Univ., Bd. of Trustees, 28 F.3d 1146, 1150
(11th Cir. 1994).
Shortly after the district court's decision, the Supreme
Court in Hope explicitly overruled the cases from the Eleventh
Circuit upon which the district court relied. See 122 S. Ct. at
2515. The Supreme Court said that considering only those cases
with similar facts, as the district court did here, is a "rigid
gloss on the qualified immunity standard . . . [that] is not
consistent with our cases." Id. The Court further stated that
"[a]lthough earlier cases involving 'fundamentally similar' facts
can provide especially strong support for a conclusion that the law
is clearly established, they are not necessary to such a finding."
Id. Our cases are consistent with the Court's decision in Hope.
See Hatch v. Dep't for Children, Youth and Their Families, 274 F.3d
12, 22 (1st Cir. 2001); El Dia, Inc. v. Rossello, 165 F.3d 106, 109
(1st Cir. 1999); Germany v. Vance, 868 F.2d 9, 16 (1st Cir. 1989).
We therefore conclude that the district court's analysis
was flawed because it overemphasized our statement in Roberts'
earlier appeal and failed to properly weigh relevant decisions from
other circuits. We consider it unnecessary, however, to remand
this matter to the district court because the question of whether
a right is clearly established is an issue of law. See Singh v.
Blue Cross/Blue Shield of Mass., Inc., 308 F.3d 25, 35 (1st Cir.
2002) ("[Q]ualified immunity analysis under § 1983 involves a
-9- quintessential legal question: whether the rights at issue are
clearly established."). We instead proceed on our own to determine
whether our cases, as well as those from other circuits, clearly
established that reasonable suspicion was needed before prison
officials could subject people arrested for minor offenses to strip
and visual body cavity searches.
We begin by noting that our inquiry is time-sensitive.
See Hatch, 274 F.3d at 22. Qualified immunity is available to the
defendants if, at the time of the alleged violations, the law was
not clearly established. See id. The parties all agree that the
operative date for our analysis is March 17, 2000.
"One tried and true way of determining whether [a] right
was clearly established . . . is to ask whether existing case law
gave the defendants fair warning that their conduct violated the
plaintiff's constitutional rights." Suboh, 298 F.3d at 93. After
thoroughly reviewing the law, we find that existing cases gave the
defendants plenty of fair warning that, prior to March 17, 2000,
reasonable suspicion was needed in order to subject people arrested
for minor offenses to strip and visual body cavity searches.
The place to start our analysis is with the Supreme
Court's decision in Bell v. Wolfish, 441 U.S. 520 (1979). In that
case, the Court upheld a strip and visual body cavity search of
pretrial detainees. In doing so, the Court conducted an analysis
that balanced the need for the searches against the invasion of
-10- personal rights. Id. at 559. Although the Court said that the
practice of strip searching individuals "instinctively gives us the
most pause," it found the searches constitutional because of the
security needs of the prison. Id. at 559-60. But the Court was
clear to delineate the scope of its holding:
[W]e deal here with the question whether visual body-cavity inspections . . . can ever be conducted on less than probable cause. Balancing the significant and legitimate security interests of the institution against the privacy interests of the inmates, we conclude that they can.
Id. at 560 (emphasis in original). In other words, Bell
established the ceiling; it made clear that prison officials did
not necessarily need probable cause to strip search pretrial
detainees. But Bell left the floor undefined. Still ambiguous was
whether prison officials needed any level of particularized
suspicion that detainees were carrying contraband or weapons before
conducting strip searches.
Our early cases applying Bell to the prison environment
dealt largely with situations involving prison visitors. In one of
our first prison visitor cases, Blackburn v. Snow, 771 F.2d 556,
567 (1st Cir. 1985), we held that:
[T]he Constitution requires a more particularized level of suspicion to justify the humiliating and intrusive searches conducted here. While we need not define here precisely what level of individualized suspicion is required . . . a rule unabashedly requiring none cannot be reconciled with the Fourth Amendment.
-11- See also Cochrane v. Quattrocchi, 949 F.2d 11, 13 (1st Cir. 1991).
In Wood v. Clemons, 89 F.3d 922, 928 (1st Cir. 1996), we
clarified that the level of particularized suspicion required
before subjecting prison visitors to strip searches was "reasonable
suspicion." We said that "a strip search cannot be justified
absent some quantum of individualized suspicion. In determining
the level of individualized suspicion . . . courts have converged
upon one common benchmark: the standard of 'reasonable
suspicion.'" Id. (emphasis in original) (citations omitted).
Our cases addressing strip and visual body cavity
searches were not limited to prison visitors. We required
reasonable suspicion for strip searches at border crossings. See
United States v. Uricoechea-Casallas, 946 F.2d 162, 166 (1st Cir.
1991). And most significantly for this case, we demanded in Swain
v. Spinney, 117 F.3d 1, 7 (1st Cir. 1997), that prison officials
possess reasonable suspicion to conduct strip and visual body
cavity searches of arrestees.
In Swain, we examined our prior cases dealing with prison
visitors and border searches, as well as relevant cases from other
circuits. We concluded that "it is clear that at least the
reasonable suspicion standard governs strip and visual body cavity
searches in the arrestee context as well." Id. This ruling was
consistent with cases from numerous other circuits. See Justice v.
City of Peachtree City, 961 F.2d 188, 193 (11th Cir. 1992); Masters
-12- v. Crouch, 872 F.2d 1248, 1255 (6th Cir. 1989), cert. denied, 493
U.S. 977 (1989); Weber v. Dell, 804 F.2d 796, 802 (2d Cir. 1986),
cert. denied, 483 U.S. 1020 (1987); Jones v. Edwards, 770 F.2d 739,
742 (8th Cir. 1985); Stewart v. Lubbock County, Tex., 767 F.2d 153,
156-57 (5th Cir.), cert. denied, 475 U.S. 1053 (1985); Giles v.
Ackerman, 746 F.2d 614, 618 (9th Cir. 1984), cert. denied, 471 U.S.
1053 (1985); Hill v. Bogans, 735 F.2d 391, 394 (10th Cir. 1984);
Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1273 (7th Cir.
1983); Logan v. Shealy, 660 F.2d 1007, 1013 (4th Cir. 1981), cert.
denied, 455 U.S. 942 (1982).
Not only did we hold in Swain that reasonable suspicion
was required to strip search arrestees, we also determined when
analyzing the issue of qualified immunity that "it was clearly
established at the time of the search [May 18, 1993] that the
Fourth Amendment requires at least a reasonable suspicion to
conduct these types of searches." 117 F.3d at 5 (emphasis added).
This ruling too was in accord with decisions by other circuits.
See Chapman v. Nichols, 989 F.2d 393, 398 (10th Cir. 1993) (holding
that it was clearly established that a strip search policy applied
to minor offense detainees without particularized reasonable
suspicion was unlawful); Masters, 872 F.2d at 1255 ("The decisions
of all the federal courts of appeals that have considered the issue
reached the same conclusion: a strip search of a person arrested
for a traffic violation or other minor offense not normally
-13- associated with violence and concerning whom there is no
individualized reasonable suspicion that the arrestee is carrying
or concealing a weapon or other contraband, is unreasonable. We
believe the right of such a person to be free of such a search was
'clearly established' on October 21, 1986."); Weber, 804 F.2d at
803 (denying qualified immunity for defendants who performed
suspicionless strip searches on arrestees because "at least eleven
circuit court decisions . . . hold similar policies
unconstitutional"); Jones, 770 F.2d at 742 n.4 (denying defendants
qualified immunity because the Fourth Amendment's protection
against suspicionless strip searches of arrestees was well
established). In short, the defendants had more than fair warning
that, prior to March 17, 2000, prison officials needed reasonable
suspicion that arrestees for minor offenses, like the plaintiffs in
this case, were concealing contraband or weapons before conducting
strip and visual body cavity searches.
The defendants' principal argument is that, despite the
overwhelming precedent described above, it was still unclear
whether reasonable suspicion was required when arrestees were
commingled with a general prison population, as was the case at the
ACI facilities.
Admittedly, our precedent does not speak to commingling
specifically. But as early as Blackburn, we rejected the argument
that "the security needs of a prison can, standing alone, properly
-14- justify the 'complete withdrawal' of Fourth Amendment rights from
all who enter [a prison]." 771 F.2d at 563 (emphasis in original);
see also Logan, 660 F.2d at 1013 ("An indiscriminate strip search
policy routinely applied to detainees . . . cannot be
constitutionally justified simply on the basis of administrative
ease in attending to security considerations.").
Cases from other circuits are more explicit; they refute
the defendants' argument with such clarity that we have little
trouble concluding that, when read in conjunction with our
opinions, the defendants had fair warning that commingling alone
could not justify suspicionless strip searches of arrestees. Most
notable is the Sixth Circuit's holding in Masters v. Crouch, 872
F.2d 1248, 1254 (6th Cir. 1989):
[T]he fact of intermingling [with other prison inmates] alone has never been found to justify such a search without consideration of the nature of the offense and the question of whether there is any reasonable basis for concern that the particular detainee will attempt to introduce weapons or other contraband into the institution.
Other circuits too have found commingling to be an
insufficient basis upon which to abandon the need for reasonable
suspicion. The Second Circuit in Walsh v. Franco, 849 F.2d 68, 69
(2d Cir. 1988), ruled that a blanket strip search of all
misdemeanor arrestees was not permissible simply because those
arrestees were commingled among arraigned inmates. The court
explained that "the risk of a misdemeanor arrestee's introducing
-15- contraband into the general jail population simply did not warrant
a strip search of all arrestees and that particularized suspicion
is required for strip-searching any person arrested for a
misdemeanor or other minor offense." Id.
The Ninth Circuit in Giles v. Ackerman, 746 F.2d 614, 618
(9th Cir. 1984), adopted similar logic. The court explained that
blanket strip search policies cannot deter arrestees from smuggling
contraband into a jail because arrests are unplanned events. Id.
The court concluded "that defendants' heavy reliance on the
intermingling of its temporary detainees with the general [jail]
population is misplaced because such intermingling is both limited
and avoidable." Id. at 619 (citation and internal quotation marks
omitted) (alteration in original). The Tenth Circuit has held to
the same effect. See Chapman, 989 F.2d at 396 (rejecting the
defendant's argument "that the invasion posed by his policy is
justified by the need for jail security because women detainees
must be incarcerated in one cell with the general jail
population"); Hill, 735 F.2d at 394 (rejecting intermingling
argument because "intermingling is only one factor to consider in
judging the constitutionality of a strip search").
The defendants' final argument is that our decision in
Arruda v. Fair, 710 F.2d 886 (1st Cir. 1983), made the law unclear
regarding the need for reasonable suspicion when strip searching
arrestees who would ultimately be commingled with other inmates in
-16- a maximum security prison. In Arruda, we upheld a policy of strip
searching inmates at MCI-Walpole, a Massachusetts maximum security
prison. See id. at 888. Nowhere in that opinion did we articulate
a need for reasonable suspicion. The defendants say that ACI is a
maximum security prison too, and therefore Arruda suggests that no
reasonable suspicion is needed to conduct strip and visual body
cavity searches of arrestees brought to ACI. This argument is
unpersuasive for two reasons. First, as we have already discussed,
our cases since Arruda have made clear that reasonable suspicion is
required to strip search arrestees. See Swain, 117 F.3d at 7.
Second, Arruda was a case involving "particularly dangerous
prisoners." 710 F.2d at 887. The plaintiff himself was a
convicted felon assigned to a special cell block, which we
described as a "prison within a prison, designed to hold the most
dangerous inmates." Id. The plaintiff was assigned to this
special cell block for assaulting another prisoner. In addition,
the plaintiff testified that, while a prisoner, he possessed drugs
and a weapon. Id. at 888.
Based on these facts, we have no difficulty concluding
that the defendants could not rely on Arruda to justify their
actions. It is simply not reasonable to equate people arrested for
non-violent, non-drug related minor offenses with a convicted felon
who, while incarcerated, possessed contraband and a weapon,
-17- assaulted a fellow prisoner, and was confined to a special cell
block designed to hold dangerous inmates.
In light of our prior case law, as well as decisions from
other circuits, we conclude that the defendants had fair warning
that subjecting arrestees for minor offenses to strip and visual
body cavity searches without any reasonable suspicion was a
violation of the Fourth Amendment, even though the arrestees were
commingled with other inmates. The law was clearly established for
purposes of qualified immunity.
3. Objective Reasonableness
Having concluded that the law clearly established the
plaintiffs' right to be free from suspicionless strip and visual
body cavity searches, we now address the third and final step in
the qualified immunity analysis. The defendants are entitled to
qualified immunity if objectively reasonable prison officials in
the defendants' position would believe that their conduct was
lawful in light of clearly established law. See Suboh, 298 F.3d at
95; Swain, 117 F.3d at 9. This is a legal question, but we have
repeatedly recognized that "[a] determination of objective
reasonableness 'will often require examination of the information
possessed' by the defendant officials." Kelly v. Laforce, 288 F.3d
1, 7 (1st Cir. 2002) (quoting Anderson, 483 U.S. at 641); see also
Bilida v. McCleod, 211 F.3d 166, 174 (1st Cir. 2000); Sheehy v.
Town of Plymouth, 191 F.3d 15, 19 (1st Cir. 1999); McBride v.
-18- Taylor, 924 F.2d 386, 389 (1st Cir. 1991); Floyd v. Farrell, 765
F.2d 1, 6 (1st Cir. 1985).
Mindful that the reasonableness inquiry is "highly fact
specific," Swain 117 F.3d at 9, any determination we make would
require examining the record for evidence that the defendants had
reasonable suspicion, albeit mistakenly, that the plaintiffs were
concealing contraband or weapons. Reasonable suspicion can arise
from a wide variety of circumstances, including "the crime charged,
the particular characteristics of the arrestee, and/or the
circumstances of the arrest." Weber, 804 F.2d at 802; Giles, 746
F.2d at 617; see also Roberts, 239 F.3d at 113 (stating that
reasonable suspicion can be based on "observations of a particular
inmate during a less invasive pat-down frisk and clothing search,
or based on contraband found during that search").
The record before us, however, is barren of any facts
regarding what the prison officials knew, or did not know, about
the plaintiffs. The only facts we have are those from the parties'
pleadings and those facts contained in the decisions by this court
and the district court in Roberts' first round of litigation. The
facts developed there were based on a "joint factual stipulation"
submitted by the parties to the district court. The record now
before us does not contain the joint factual stipulation. Even if
it did, the joint stipulation pertains only to Roberts. As far as
we can tell, the parties have not stipulated to all the facts
-19- regarding any of the other plaintiffs. Given the state of the
record, we must remand this case to the district court for a
determination of the third step in the qualified immunity analysis,
as well as the other issues in the litigation.
III. CONCLUSION
The law was clearly established on March 17, 2000, that
people arrested for non-violent, non-drug related minor offenses
could not be subjected to strip and visual body cavity searches
absent reasonable suspicion that they were concealing contraband or
weapons, even when those arrestees were commingled with general
prison populations. The district court's decision granting
qualified immunity to the defendants-appellees is therefore
REVERSED and the case is REMANDED for further proceedings
consistent with this opinion. Costs on appeal are awarded to
plaintiffs-appellants.
So ordered.
-20-