San Francisco non-violent inmate strip search policy upheld
Court decision overrules a 1984 standard that limited which new inmates could be searched
By Bob Egelko
The San Francisco Chronicle
SAN FRANCISCO, Calif. — San Francisco acted legally in strip-searching thousands of new jail inmates over a 21-month period, a federal appeals court ruled Tuesday, sparing the city from millions of dollars in potential damages and allowing the sheriff to reinstate a policy he suspended six years ago.
In a 6-5 decision, the Ninth U.S. Circuit Court of Appeals in San Francisco overruled the standard it had set in 1984, which most courts nationwide have since followed: that strip searches are justified only for inmates who are suspected of committing violent or drug-related crimes or of concealing contraband.
San Francisco sheriff's deputies were entitled to strip-search newly arrested inmates, regardless of why they were arrested, to combat a wave of drugs and weapons being smuggled into jail, the court said Tuesday.
The policy was reasonable "in light of the documented evidence of the ongoing, dangerous and perplexing contraband-smuggling problem, and given the deference we owe to jail officials' professional judgment," Judge Sandra Ikuta said in the majority opinion.
Dissenting Judge Sidney Thomas said the ruling gives jailers "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."
Mark Merin, lawyer for former inmates who sued the city in 2003, was noncommittal about appealing to the U.S. Supreme Court. The court has turned down jail officials' appeals of rulings from around the nation since 1984 that set more restrictive search standards, but its recent decisions in jail and prison cases have sided with officers who said strict measures were needed for security reasons.
Tuesday's ruling applies to county jails in California and eight other Western states, including several counties that have changed their search policies and paid multimillion-dollar settlements in response to earlier federal court decisions. The settlements will remain intact, but the counties could reinstate their former practices.
Sheriff Michael Hennessey ordered the searches in April 2002 at San Francisco's reception jail, where 50,000 newly arrested inmates a year are held before being transferred to another jail for pretrial detention within 24 hours or released. Under the policy, every inmate who was designated for transfer to another jail was subjected to a visual body cavity search.
The lead plaintiff in the lawsuit in Tuesday's ruling, Mary Bull, said she had been arrested on suspicion of vandalism during a protest, refused to consent to a strip search, and then had been forcibly searched, thrown face-first onto the floor and left naked in a cold room for 12 hours. She was later released without charges.
Hennessey suspended the policy in January 2004 in response to the suit and a series of Ninth Circuit rulings forbidding strip searches unless deputies have reason to suspect an inmate is hiding something dangerous.
A federal judge ruled the city's former practice unconstitutional in 2005, exposing the city to damage claims by as many as 28,000 former inmates. The city appealed, leading to Tuesday's ruling.
Weapons, razor blades
Sheriff's spokeswoman Eileen Hirst said Hennessey was reviewing the ruling before deciding whether to reinstate his former policy. As evidence of the smuggling problem, she said, officers with dogs discovered 20 weapons and 36 razor blades during routine sweeps at the jails last year.
Merin said officers never found any contraband on the inmates he represents, who were searched without any reason to suspect they were concealing weapons or drugs.
If the former policy is reinstated, he said, "I don't think it's going to change anything except subject a lot more people to the indignity of a strip search."
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