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DC Circuit Upholds Strip Search of Non-Violent Offender

DC Circuit Upholds Strip Search of Non-Violent Offender

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Published by FindLaw
The DC Circuit has granted summary judgment for a US Marshall in a case over strip searches of demonstrators that the plaintiffs alleged were unconstitutional. The court found that, at the time of the strip searches, it was not clearly established that such a search would violate the Fourth Amendment, thus the officer was entitled to qualified immunity.
The DC Circuit has granted summary judgment for a US Marshall in a case over strip searches of demonstrators that the plaintiffs alleged were unconstitutional. The court found that, at the time of the strip searches, it was not clearly established that such a search would violate the Fourth Amendment, thus the officer was entitled to qualified immunity.

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Published by: FindLaw on Apr 08, 2011
Copyright:Public Domain

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02/06/2013

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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
 Argued September 14, 2010 Decided March 25, 2011Reissued March 29, 2011No. 09-5330P
AUL
B
AME
,
ET AL
.,A
PPELLEES
 v.T
ODD
W.
 
D
ILLARD
,
 
I
N HIS
O
FFICIAL
C
APACITY
(F
ORMER
U
NITED
S
TATES
M
ARSHAL FOR THE
D
ISTRICT OF
C
OLUMBIA
),A
PPELLANT
 Appeal from the United States District Courtfor the District of Columbia(No. 1:05-cv-01833-RMC)
W. Mark Nebeker 
, Assistant U.S. Attorney, argued thecause for appellant. With him on the briefs were
Ronald C.Machen Jr.
, U.S. Attorney, and
R. Craig Lawrence
, AssistantU.S. Attorney.
Lynn E. Cunningham
argued the cause for appellees.With him on the brief was
Zachary Wolfe
.Before: G
INSBURG
and R
OGERS
,
Circuit Judges
, andW
ILLIAMS
,
Senior Circuit Judge
.
 
2Opinion for the Court filed by
Circuit Judge
G
INSBURG
.Dissenting opinion filed by
Circuit Judge
R
OGERS
.G
INSBURG
,
Circuit Judge
: The named plaintiffs
 
filed thisclass action suit for damages against Todd Walther Dillard, aformer United States Marshal for the Superior Court of theDistrict of Columbia, claiming that, after being arrestedduring a demonstration in September 2002, they wereunconstitutionally strip searched by Deputy U.S. Marshalsunder Dillard’s direction. According to the plaintiffs, caselawhad by then clearly established that the Fourth Amendment tothe Constitution of the United States prohibited stripsearching a person arrested for a non-violent, non-drug-related misdemeanor absent a particularized reason to suspectthe arrestee was concealing contraband or weapons about hisperson. Dillard moved for summary judgment based uponqualified immunity, and when the district court denied thatmotion, brought this interlocutory appeal. We conclude itwas not clearly established in 2002 that the strip search of aperson being introduced into a detention facility violated theFourth Amendment. Therefore, Dillard is entitled to qualifiedimmunity and to summary judgment.I. BackgroundIn 1999 the United States Marshals Service (USMS)adopted Policy Directive No. 99-25 to prescribe, among otherthings, the procedure for strip searching prisoners and “otherpersons who are under arrest.” The Policy Directiveauthorized a “strip search,” defined as “[a] complete search of a prisoner’s attire and a visual inspection of the prisoner’snaked body, including body cavities,” when “there isreasonable suspicion that the prisoner may be (a) carryingcontraband and/or weapons, or (b) considered to be a security,
 
3escape, and/or suicide risk.” “Reasonable suspicion” was tobe determined according to the following criteria:a.
 
Serious nature of the offense(s) charged, i.e., whethercrime of violence or drugs;b.
 
Prisoner’s appearance or demeanor;c.
 
Circumstances surrounding the prisoner’s arrest ordetention; i.e., whether the prisoner has beenconvicted or is a pretrial detainee;d.
 
Prisoner’s criminal history;e.
 
Type and security level of institution in which theprisoner is detained; orf.
 
History of discovery of contraband and/or weapons,either on the prisoner individually or in the institutionin which prisoners are detained.Dillard was the United States Marshal for the SuperiorCourt of the District of Columbia when the plaintiffs werearrested and allegedly strip searched. Under his supervision,all male arrestees held at the Superior Court were stripsearched upon arrival, before being put into the cellblock;
 
Dillard denies this procedure was “followed in practice,” althoughhe concedes for purposes of the appeal that the strip searchesoccurred in this case. In settlement of 
Morgan v. Barry
, Civ. A.No. 81-1419 (D.D.C. 1981), the District of Columbia had signed aMemorandum of Agreement not to strip search female arresteesprior to arraignment without individualized, reasonable suspicion orunless the arrestee was to come into contact with the general inmatepopulation of the detention facility. The practice of strip searchingall male arrestees is no longer in place at the Superior Court.
more specifically, each male arrestee was required to drop histrousers and underwear, bend over or squat, and expose hisbuttocks and genitals to a male Deputy Marshal. Thispractice had been instituted in light of an extensive history of prisoners’ concealing contraband on their bodies while in the

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