Law Humor

In February, the Ninth Circuit ruled that police have qualified immunity from civil-rights claims based on a department policy of strip-searching all arrestees (not convicts, just arrestees) who are to be put into "general population."   Bull v. City and County of San Francisco, 2010 WL 431790 (9th Cir. Feb. 9, 2010).  The court held that individualized suspicion was not required because of the "legitimate penological interests" in keeping contraband out of jails.  (There is, of course, the obligatory list of items found confiscated during such strip searches, a list that is both amusing and somewhat terrifying.)

The lower court ruled that a blanket arrestee-strip-search policy was unconstitutional, harking back to those enchanting days of yore when many Americans actually had constitutional rights.  The Ninth Circuit used to feel the same way about such policies, but in Bull it reversed itself.  The lower court had held that certain groups of people could not be strip-searched, namely those not arrested for crimes involving weapons, controlled substances, or violence.  Chief Judge Alex Kozinski concurred in the opinion striking this down, writing separately to argue that only the Supreme Court can carve out sub-classes of individuals who are entitled to preferred treatment.  Courts have trouble agreeing on such classifications, he said, citing cases showing that they are all over the map as to what is a "crime of violence":

[Courts] often disagree. See, e.g., United States v. Chambers, 473 F.3d 724, 726 (7th Cir. 2007) (escape is a crime of violence); United States v. Piccolo, 441 F.3d 1084, 1088 (9th Cir. 2006) (no it?s not); United States v. Asberry, 394 F.3d 712, 715-16 (9th Cir. 2005) (statutory rape is a crime of violence); id. at 722 (Bea, J., concurring) (no way); United States v. Wenner, 351 F.3d 969, 974 (9th Cir. 2003) (burglary is not a crime of violence); id. at 977 (Wallace, J., dissenting) (is too); United States v. Johnson, 448 F.3d 1017, 1018 (8th Cir. 2006) (grand theft auto is); Von Don Nguyen v. Holder, 571 F.3d 524, 525 (6th Cir. 2009) (au contraire); Malta-Espinoza v. Gonzales, 478 F.3d 1080, 1084 (9th Cir. 2007) (stalking isn?t); id. at 1088 (Duffy, J., dissenting) (?I respectfully dissent.?); United States v. Saavedra-Velazquez, 578 F.3d 1103, 1110 (9th Cir. 2009) (Reinhardt, J.) (attempted robbery is); id. (Reinhardt, J., specially concurring) (or is it?); United States v. Trinidad-Aquino, 259 F.3d 1140, 1146 (drunk-driving-resulting-in-bodily-injury is a gentle crime); id. at 1147 (Kozinski, J., dissenting) (Bull!).

On reflection, though, it also seems important to know that if arrested you can be strip-searched for any reason, or no reason, really, depending on where the police decide to put you between the arrest and when you are booked and released.  If their decision would bring you into contact with general population, it's cavity-search time, whether or not police can articulate any other reason why your cavities might need inspection.  Another reason to rethink drinking and driving, I guess.   

Link: Legal Pad