A plaintiffs lawyer who's won settlements around California over jail strip searches is finding the city of San Francisco to be a much tougher target.
On Tuesday, a fragmented 9th U.S. Circuit Court of Appeals turned down a facial challenge to San Francisco Sheriff Michael Hennessey's blanket strip-search policy for individuals about to be housed in the city jail. And while Sacramento civil rights lawyer Mark Merin emphasizes that the suit is not dead, lawyers in San Francisco City Attorney Dennis Herrera's office were jubilant.
The ruling (pdf) reverses an earlier panel opinion, in which Judge Sandra Ikuta concurred in Judge Sidney Thomas' result. But Ikuta fulminated for en banc review because, she argued, circuit case law put prison guards at risk.
Ikuta wrote the en banc opinion and had sharp words for Thomas, who penned the dissent.
"The dissent's sensationalist account of individual factual allegations is worse than irrelevant, as it invites us to decide this case on the basis of disputed factual issues not yet presented by the parties, not yet considered by the district court, and not yet weighed by a jury," Ikuta wrote, adding: "Although the dissent's dramatic accounts stir the emotions, they are misleading and ultimately irrelevant to the case before us."
Thomas didn't hesitate to fire back.
"The majority sweeps away twenty-five years of jurisprudence, giving jailors the unfettered right to conduct mandatory, routine, suspicionless body cavity searches on any citizen who may be arrested for minor offenses, such as violating a leash law or a traffic code, and who pose no credible risk for smuggling contraband into the jail," he wrote, adding: "The rationale for this abrupt precedential departure is founded on quicksand."
Tuesday's ruling reverses Northern District of California Judge Charles Breyer's denial of qualified immunity for Hennessey, and specifically overturns two earlier 9th Circuit cases. "We erred in concluding that arrestees charged with minor offenses 'pose no security threat to the facility,'" Ikuta wrote.
The class action involves people arrested for nonviolent offenses; the lead plaintiff, Mary Bull, poured fake blood at a political protest. After Merin filed suit, Hennessey changed jail strip-search policy so that it only applied to individuals with a history of drugs, weapons or violent crimes. But Hennessey told the circuit he would restore the blanket policy if he could, said Chief Trial Deputy Joanne Hoeper.
"We felt from the beginning this was an issue of life and death for people in the jails," Hoeper said. "This policy was there to protect people, and we're very gratified this court recognized that."
Merin has won settlements in several different counties, including Alameda, San Mateo and $15 million from Sacramento. Hoeper criticizes Merin for bringing suits that put people "in harm's way," but Merin says the settlements in those other jurisdictions were based on more egregious facts.
"If the city attorney's office is somehow smirking, thinking other jurisdictions shouldn't have settled," Merin said, "I think they're quite wrong."
Judges Pamela Rymer, Richard Clifton and N. Randy Smith joined Ikuta's opinion. Though she agreed with the dissent's constitutional analysis, Judge Susan Graber concurred in the majority's result because, she said, case law hadn't been clear enough to deny qualified immunity.
Chief Judge Alex Kozinski wrote a separate concurrence, joined by Judge Ronald Gould. Judges shouldn't carve out unworkable subclasses of people who enjoy higher Fourth Amendment protections than others, Kozinski wrote, saying such an arrangement leads to elitism.
"It's no coincidence, I believe, that the class of people selected for favorable treatment by the district court in this case are those who have been arrested for the kinds of crimes that any of us, or at least our friends and neighbors, might be arrested for," Kozinski wrote.
Judges Kim McLane Wardlaw, Marsha Berzon and Johnnie Rawlinson joined Thomas in dissent. Merin says he has not decided whether to seek Supreme Court review. The case is Bull v. San Francisco, 10 C.D.O.S. 1767.