On Appeal from the United States District Court for the District of New Jersey, (D. C. No. 1-05-cv-03619), District Judge: Honorable Joseph J. Rodriguez.
The opinion of the court was delivered by: Hardiman, Circuit Judge.
Before: SLOVITER and HARDIMAN, Circuit Judges and*fn1 POLLAK, District Judge.
This interlocutory appeal requires us to decide whether it is constitutional for jails to strip search arrestees upon their admission to the general population. Although the question is one of first impression for this Court, the Supreme Court's decision in Bell v. Wolfish, 441 U.S. 520 (1979), and the many cases that followed it inform our analysis.
In Bell, the Supreme Court rejected a Fourth Amendment challenge to a policy of visual body cavity searches for all detainees-regardless of the reason for their incarceration-after contact visits with outsiders. Id. at 560. The Court applied a balancing test and concluded that the visual body cavity searches were reasonable because the prison's security interest justified the intrusion into the detainees' privacy.
Since Bell was decided, ten circuit courts of appeals applied its balancing test and uniformly concluded that an arrestee charged with minor offenses may not be strip searched consistent with the Fourth Amendment unless the prison has reasonable suspicion that the arrestee is concealing a weapon or other contraband. Things changed in 2008, however, when the en banc Court of Appeals for the Eleventh Circuit reversed its prior precedent and held that a jail's blanket policy of strip searching all arrestees upon entering the facility was reasonable even in the absence of individualized suspicion. Powell v. Barrett, 541 F.3d 1298, 1314 (11th Cir. 2008) (en banc). A year later, the en banc Court of Appeals for the Ninth Circuit also reversed its prior precedent and upheld a blanket policy of strip searching all arrestees before they enter San Francisco's general jail population. Bull v. City and County of San Francisco, 595 F.3d 964, 975 (9th Cir. 2010) (en banc).
Confronted with a clear dichotomy between the en banc decisions of the Ninth and Eleventh Circuits on the one hand and the numerous cases that preceded them on the other, we must determine which line of cases is more faithful to the Supreme Court's decision in Bell.
We begin with the facts surrounding the arrest and detention of lead Plaintiff Albert Florence. On March 3, 2005, a New Jersey state trooper stopped the car in which Florence was a passenger and arrested him based on an April 25, 2003 bench warrant from Essex County. The warrant charged Florence with a non-indictable variety of civil contempt. Though Florence protested the validity of the warrant by insisting he had already paid the fine on which it was based, he was arrested and taken to the Burlington County Jail (BCJ).
According to Florence, he was subjected to a strip and visual body-cavity search by corrections officers at BCJ. During the jail's intake process, Florence was directed to remove all of his clothing, then open his mouth and lift his tongue, hold out his arms and turn around, and lift his genitals. The officer conducting the search sat approximately arms-length in front of him, and directed Florence to shower once the search was complete. Florence was held at BCJ for six days.
During Florence's sixth day at BCJ, the Essex County Sheriff's Department took custody of him and transported him to the Essex County Correctional Facility (ECCF). Florence alleges that he was subjected to another strip and visual body-cavity search upon his arrival at ECCF. As described by Florence, he and four other detainees were instructed to enter separate shower stalls, strip naked and shower under the watchful eyes of two corrections officers. After showering, Florence was directed to open his mouth and lift his genitals. Next, he was ordered to turn around so he faced away from the officers and to squat and cough. After donning ECCF-issued clothing and visiting a nurse, Florence joined the general jail population until the following day, when the charges against him were dismissed.
After his release, Florence sued BCJ, ECCF, and various individuals and municipal entities (collectively, the Jails) under 42 U.S.C. § 1983. While Florence asserted numerous constitutional claims, the only claim germane to this appeal is his Fourth Amendment challenge to the strip search procedures at BCJ and ECCF.
On March 20, 2008, the District Court granted Florence's motion for class certification, defining the plaintiff class as:
All arrestees charged with non-indictable offenses who were processed, housed or held over at Defendant Burlington County Jail and/or Defendant Essex County Correctional Facility from March 3, 2003 to the present date who were directed by Defendants' officers to strip naked before those officers, no matter if the officers term that procedure a "visual observation" or otherwise, without the officers first articulating a reasonable belief that those arrestees were concealing contraband, drugs or weapons[.]
Florence v. Bd. of Chosen Freeholders of the County of Burlington, 2008 WL 800970, at *17 (D.N.J. Mar. 20, 2008).*fn2
Following discovery, the parties filed cross motions for summary judgment. In reviewing the motions, the District Court first considered whether the intake procedures at each facility rose to the level of a "strip search." Florence v. Bd. of Chosen Freeholders of the County of Burlington, 595 F. Supp. 2d 492, 502 (D.N.J. 2009). To resolve this question, the District Court reviewed the Jails' written search policies*fn3 as well as the deposition testimony of correctional officers and the wardens at each facility. Ultimately, the District Court concluded that, while there were facts in dispute-such as whether nonindictable male arrestees at BCJ were required to lift their genitals during the search-these disputes were immaterial because even the undisputed procedures of instructing arrestees to remove all of their clothing and subject their naked bodies to visual inspection "rose to the level of a strip search" under the Fourth Amendment. Id. at 502-03 ("Whatever the case may be, a discrepancy of this sort does not necessarily provide a genuine issue of material fact.... 'It's just common sense. Take off all your clothes. You're strip searched.'" (quoting Plaintiffs' counsel)).
The policy in effect at ECCF from September 2002 through April 2005 provided that all arrestees were to be strip searched and required to shower. Department of Public Safety General Order No. 89-17, Supp. App. 34. A "strip search" under the written policy is to consist of an officer "observ[ing] carefully while the inmate undresses" and examining the arrestee's ears, nose, hair and scalp, the interior of the mouth, fingers, hands, arms and armpits, and all body openings and the inner thighs. Id. The superceding ECCF policy, Department of Corrections Administrative Directive No. 04-06, requires that officers "conduct a thorough search of individual inmates," direct arrestees to shower during intake, and "observe and document, in writing, any evidence of: a) notable body markings such as 'tattoos;' b) [b]ody vermin or disease; [and] c) [o]pen sores, visible wounds, scars, [or] injuries" on the arrestees' bodies. Supp. App. at 40.
The District Court found that BCJ's "blanket" strip search policy "entails a complete disrobing, followed by an examination of the nude inmate for bruises, marks, wounds or other distinguishing features by the supervising officer, which is then followed by a supervised shower with a delousing agent." Id. at 502. The Court found that ECCF utilized similar strip-search and supervised-shower procedures; however, the ECCF procedures were slightly more intrusive because "Essex officers carefully observed the entire naked body of the inmate, including body openings and inner thighs." Id. at 503.*fn4 Having thus defined the Jails' respective search policies, the District Court concluded that the procedures failed the Bell balancing test and observed that "blanket strip searches of non-indictable offenders, performed without reasonable suspicion for drugs, weapons, or other contraband, [are] unconstitutional." Id. at 513. Based on this holding, the District Court granted the Plaintiffs' motion for summary judgment on the unlawful search claim, but denied the Plaintiffs' request for a preliminary injunction. Id. at 519. The Court denied Defendants' cross-motion which sought qualified and Eleventh Amendment immunity. Id.
Following the decision, the Jails moved the District Court to certify its summary judgment as an appealable order pursuant to 28 U.S.C. § 1292(b). The District Court agreed that the order "involve[d] a controlling question of law as to which there is substantial ground for difference of opinion," id., and we granted permission to appeal. The District Court certified the following question for our review: "whether a blanket policy of strip searching all non-indictable arrestees admitted to a jail facility without first articulating reasonable suspicion violates the Fourth Amendment of the United States Constitution as applied to the States through the Fourteenth Amendment." Florence v. Bd of Chosen Freeholders of the County of Burlington, 657 F. Supp. 2d 504, 511 (D.N.J. 2009) (order certifying ...