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Appeals Court Rejects Suit Over Courthouse Strip Searches

By Mike Scarcella

A divided appeals court in Washington said the former U.S. marshal for the District of Columbia cannot be sued by a group of protesters who were subjected to a strip-search after arrests for non-violent, minor offenses. The court upheld the searches as lawful.

Voting 2-1 to dismiss the suit, a panel of the U.S. Court of Appeals for the D.C. Circuit said there was no ?clearly established? constitutional ban in 2002 against strip searches of defendants arrested on minor, non-drug offenses in the District.

The criminal charges stemmed from a demonstration against the International Monetary Fund and World Bank in downtown Washington in 2002. The authorities arrested protesters on charges of interfering with traffic and failure to obey a police officer.

The protesters, who were strip-searched at D.C. Superior Court after their arrest, sued former marshal Todd Dillard. The class action in Washington?s federal trial court alleged the searches were executed without individualized suspicion that a person was carrying contraband.

In 2009, Judge Rosemary Collyer of the U.S. District Court for the District of Columbia ruled the strip searches violated the Fourth Amendment and held that Dillard does not have qualified immunity, allowing the suit to move forward.

The U.S. Justice Department challenged the decision in the appeals court, which today sent the case back to Collyer with an order that she grant summary judgment for Dillard. (The appeals court heard argument in September.)

Judge Douglas Ginsburg and Senior Judge Stephen Williams, who sided against the protesters, said ?the law in 2002 did not clearly establish that strip searching all male arrestees prior to placement in holding cells at the Superior Court violated the Fourth Amendment.?

The governing precedent then, Ginsburg wrote in the 14-page opinion for the majority, did not require ?individualized, reasonable suspicion before strip searching a person entering a detention facility.?

Judge Judith Rogers wrote a 23-page dissent, saying the majority mistakenly applies recent developments in the law retroactively.

?The majority?s approach means there are no objective limits to the scope of qualified immunity because a court may one day hold that the settled consensus of persuasive authority misapprehended a Supreme Court opinion on the requirements of the Constitution,? Rogers wrote.

Rogers said the court?s ruling goes against ?the consensus of ten circuit courts of appeals at the time of the challenged strip searches.? She also said the ruling ?tramples over Supreme Court precedent and gives short shrift to the protections of the Fourth Amendment.?

Lynn Cunningham, a retired George Washington University law professor who represents the plaintiffs, declined to comment on the ruling. Cunningham, a solo practitioner in Wyoming, said only that he is reviewing options, which could include a request that the full court rehear the dispute.

Full post as published by The BLT: The Blog of Legal Times on March 25, 2011 (boomark / email).