 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued September 14, 2010            Decided March 25, 2011

                       No. 09-5330

                    PAUL BAME, ET AL.,
                       APPELLEES

                             v.

 TODD W. DILLARD, IN HIS OFFICIAL CAPACITY (FORMER
UNITED STATES MARSHAL FOR THE DISTRICT OF COLUMBIA),
                    APPELLANT


        Appeal from the United States District Court
                for the District of Columbia
                (No. 1:05-cv-01833-RMC)



    W. Mark Nebeker, Assistant U.S. Attorney, argued the
cause for appellant. With him on the briefs were Ronald C.
Machen Jr., U.S. Attorney, and R. Craig Lawrence, Assistant
U.S. Attorney.

    Lynn E. Cunningham argued the cause for appellees.
With him on the brief was Zachary Wolfe.

   Before: GINSBURG and ROGERS, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.

    Opinion for the Court filed by Circuit Judge GINSBURG.
                              2
    Dissenting opinion filed by Circuit Judge ROGERS.

     GINSBURG, Circuit Judge: The named plaintiffs filed this
class action suit for damages against Todd Walther Dillard, a
former United States Marshal for the Superior Court of the
District of Columbia, claiming that, after being arrested
during a demonstration in September 2002, they were
unconstitutionally strip searched by Deputy U.S. Marshals
under Dillard’s direction. According to the plaintiffs, caselaw
had by then clearly established that the Fourth Amendment to
the Constitution of the United States prohibited strip
searching a person arrested for a non-violent, non-drug-
related misdemeanor absent a particularized reason to suspect
the arrestee was concealing contraband or weapons about his
person. Dillard moved for summary judgment based upon
qualified immunity, and when the district court denied that
motion, brought this interlocutory appeal. We conclude it
was not clearly established in 2002 that the strip search of a
person being introduced into a detention facility violated the
Fourth Amendment. Therefore, Dillard is entitled to qualified
immunity and to summary judgment.

                        I. Background

    In 1999 the United States Marshals Service (USMS)
adopted Policy Directive No. 99-25 to prescribe, among other
things, the procedure for strip searching prisoners and “other
persons who are under arrest.” The Policy Directive
authorized a “strip search,” defined as “[a] complete search of
a prisoner’s attire and a visual inspection of the prisoner’s
naked body, including body cavities,” when “there is
reasonable suspicion that the prisoner may be (a) carrying
contraband and/or weapons, or (b) considered to be a security,
escape, and/or suicide risk.” “Reasonable suspicion” was to
be determined according to the following criteria:
                                 3
    a. Serious nature of the offense(s) charged, i.e., whether
       crime of violence or drugs;
    b. Prisoner’s appearance or demeanor;
    c. Circumstances surrounding the prisoner’s arrest or
       detention; i.e., whether the prisoner has been
       convicted or is a pretrial detainee;
    d. Prisoner’s criminal history;
    e. Type and security level of institution in which the
       prisoner is detained; or
    f. History of discovery of contraband and/or weapons,
       either on the prisoner individually or in the institution
       in which prisoners are detained.

     Dillard was the United States Marshal for the Superior
Court of the District of Columbia when the plaintiffs were
arrested and allegedly strip searched. Under his supervision,
all male arrestees held at the Superior Court were strip
searched upon arrival, before being put into the cellblock; ∗
more specifically, each male arrestee was required to drop his
trousers and underwear, bend over or squat, and expose his
buttocks and genitals to a male Deputy Marshal. This
practice had been instituted in light of an extensive history of
prisoners’ concealing contraband on their bodies while in the
cellblock. In the four years prior to the plaintiffs’ arrests, the
USMS had documented at least 30 incidents in which Deputy
Marshals discovered contraband — including drugs, knives,

∗
 Dillard denies this procedure was “followed in practice,” although
he concedes for purposes of the appeal that the strip searches
occurred in this case. In settlement of Morgan v. Barry, Civ. A.
No. 81-1419 (D.D.C. 1981), the District of Columbia had signed a
Memorandum of Agreement not to strip search female arrestees
prior to arraignment without individualized, reasonable suspicion or
unless the arrestee was to come into contact with the general inmate
population of the detention facility. The practice of strip searching
all male arrestees is no longer in place at the Superior Court.
                               4
razor blades, and box cutters — on prisoners brought to the
Superior Court cellblock by law enforcement.

     Metropolitan Police officers arrested the plaintiffs on the
morning of September 27, 2002 while they were protesting a
meeting of the International Monetary Fund and the World
Bank in downtown Washington, D.C. The officers initially
transported the protestors to various police holding facilities;
later that day, the officers bused the named plaintiffs and
others to the Superior Court and transferred them to the
custody of the USMS. Because the plaintiffs had refused to
identify themselves to law enforcement authorities, they were
recorded as “John Does” on the “lockup list” provided to the
Deputy Marshals.

     At the Superior Court, each plaintiff first passed through
a metal detector and was then subjected to a pat-down search.
The Deputy Marshals then strip searched the arrestees in a
receiving cell in batches of approximately ten men; no
plaintiff was touched and no female was present during the
search. No contraband was recovered from any plaintiff.

     After being strip searched, groups of 20 to 30 men were
placed together in holding cells to await disposition of the
charges against them. Each had been charged with either
“incommoding” traffic or “failure to obey” a law enforcement
officer, both of which are misdemeanors. On September 28
they were released, some having been fined and others not
sentenced at all.

    The named plaintiffs filed this class action seeking
damages from Dillard pursuant to Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics, 403 U.S. 388
(1971). They claimed the strip searches, because performed
                                 5
without individualized suspicion, violated their right under the
Fourth Amendment to be free from unreasonable searches.

      The district court certified a class of plaintiffs consisting
of:

         All men who were: (1) arrested on September 27, 2002
         by the D.C. Police officials during a series of mass
         protests in downtown Washington, D.C.; (2) remanded
         by D.C. Police, following their arrests, into the custody
         of the U.S. Marshal[] for the District of Columbia
         prior to being released; and (3) subjected by deputy
         U.S. Marshals to a strip, visual, body cavity search
         without any particularized or individualized reasonable
         suspicion that he was concealing drugs, weapons or
         other contraband. ...

The plaintiffs moved for summary judgment on the issue of
liability and Dillard moved for judgment on the pleadings or,
in the alternative, for summary judgment, arguing he was
entitled to qualified immunity under Saucier v. Katz, 533 U.S.
194, 200–02 (2001).

     The district court denied Dillard’s motion. It concluded
the strip searches violated the Fourth Amendment and held
Dillard was not entitled to qualified immunity “because the
law was clearly established that blanket strip searches of non-
violent, non-felony arrestees were unlawful” in 2002. Bame
v. Dillard, 647 F. Supp. 2d 43, 52, 55 (2009). The court also
denied the plaintiffs’ motion for summary judgment because
Dillard had denied the strip searches occurred, thus creating a
genuine issue of material fact. For the purpose of this appeal,
however, Dillard concedes the strip searches took place as
alleged.
                                6
                          II. Analysis

     The only issue on appeal is whether Dillard is entitled to
qualified immunity, which issue we resolve de novo. Elder v.
Holloway, 510 U.S. 510, 516 (1994). Qualified immunity is
“a defense that shields officials from suit if their conduct
‘d[id] not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.’”
Ortiz v. Jordan, 131 S. Ct. 884, 888 (2011) (quoting Harlow
v. Fitzgerald, 457 U.S. 800, 818 (1982)). The Supreme Court
in Saucier established a two-step test for determining whether
a government official is entitled to qualified immunity. First,
the court asks whether “the facts alleged show the officer's
conduct violated a constitutional right.” 533 U.S. at 201. If
so, then the court must determine “whether the right was
clearly established” at the time of the alleged violation. Id.
The Supreme Court has since clarified that “the sequence set
forth [in Saucier],” although “often appropriate,” is not
mandatory. Pearson v. Callahan, 129 S. Ct. 808, 818 (2009).
Courts may “exercise their sound discretion” in deciding
which question to address first “in light of the circumstances
in the particular case at hand.” Id.

      In this case the principle of constitutional avoidance
counsels that we turn directly to the second question. As the
Court recognized in Pearson itself, “There are cases in which
it is plain that a constitutional right is not clearly established
but far from obvious whether in fact there is such a right.” Id.
This is such a case.

    Therefore the first and, as it happens, only question we
address is whether it was clearly established in September
2002 that strip searching an arrestee before placing him in a
detention facility without individualized, reasonable suspicion
was unconstitutional. To answer this question, “we look to
                                7
cases from the Supreme Court and this court, as well as to
cases from other courts exhibiting a consensus view,”
Johnson v. District of Columbia, 528 F.3d 969, 976 (D.C. Cir.
2008) — if there is one. The facts of such cases need not be
“‘materially similar’ ... but have only to show that ‘the state of
the law [at the time of the incident] gave [the officer] fair
warning that [his alleged misconduct] ... was
unconstitutional.’” Id. (quoting Hope v. Pelzer, 536 U.S. 730,
741 (2002)).

     Central to our inquiry in this case, as reflected in the
briefs of both parties, is the decision in Bell v. Wolfish, 441
U.S. 520 (1979). There pretrial detainees and others ∗ housed
in the New York Metropolitan Correctional Center (MCC), a
“short-term      custodial      facility,”   challenged      the
constitutionality of strip searching each inmate who had been
visited by an outsider, without regard to individualized
suspicion. Id. at 523, 558–60. The Court noted that, under
the Fourth Amendment generally, the reasonableness of a
search is to be determined by balancing “the scope of the
particular intrusion, the manner in which it is conducted, the
justification for initiating it, and the place in which it is
conducted.” Id. at 559.

     Applying this general “test of reasonableness,” id., the
Court in Bell upheld the policy of the MCC because the
“legitimate security interests of the institution” in preventing
the introduction of contraband into the facility outweighed the
inmates’ interest in privacy: “A detention facility is a unique
place fraught with serious security dangers,” where the

∗
  The MCC also housed some convicted inmates, “witnesses in
protective custody, and persons incarcerated for contempt.” Bell,
441 U.S. at 524. All were subject to the same policy of strip
searching.
                                8
“[s]muggling of money, drugs, weapons, and other
contraband is all too common an occurrence.” Id. at 559–60.
Consequently, corrections officials are to be “accorded wide-
ranging deference” in adopting policies needed “to maintain
institutional security.” Id. at 547–48. In so stating, the Court
expressly rejected the plaintiff inmates’ argument that less
deference is due to an official holding detainees — as was
Dillard in this case — as opposed to convicts. Id. at 547 n.29.

     Dillard argues Bell establishes the strip searches
conducted at the Superior Court were not clearly
unconstitutional. For their part, the plaintiffs contend there
was by 2002 — when the searches here occurred — a
consensus among the circuits to have considered the issue that
Bell required individualized, reasonable suspicion to support
the strip search of “persons arrested for non-violent non-drug
related misdemeanor offenses.” ∗

    Dillard responds with the decisions in Powell v. Barrett,
541 F.3d 1298 (11th Cir. 2008) (en banc), and Bull v. City and
County of San Francisco, 595 F.3d 964 (9th Cir. 2010) (en
banc), which he says created a conflict among the circuits as
to the meaning of Bell. In Powell, the Eleventh Circuit

∗
  The plaintiffs cite Wilson v. Jones, 251 F.3d 1340 (11th Cir.
2001), which was overruled by Powell v. Barrett, 541 F.3d 1298
(11th Cir. 2008) (en banc); Roberts v. Rhode Island, 239 F.3d 107
(1st Cir. 2001); Masters v. Crouch, 872 F.2d 1248 (6th Cir. 1989);
Weber v. Dell, 804 F.2d 796 (2d Cir. 1986); Jones v. Edwards, 770
F.2d 739 (8th Cir. 1985); Stewart v. Lubbock County, 767 F.2d 153
(5th Cir. 1985); Giles v. Ackerman, 746 F.2d 614 (9th Cir. 1984),
which was overruled by Bull v. City and County of San Francisco,
595 F.3d 964 (9th Cir. 2010) (en banc); Hill v. Bogans, 735 F.2d
391 (10th Cir. 1984); Mary Beth G. v. City of Chicago, 723 F.2d
1263 (7th Cir. 1983); and Logan v. Shealy, 660 F.2d 1007 (4th Cir.
1981).
                               9
upheld the “practice of strip searching all arrestees as part of
the process of booking them into the general population of a
detention facility, even without reasonable suspicion to
believe that they may be concealing contraband.” 541 F.3d at
1300. In Bull, the Ninth Circuit similarly concluded the
policy of the San Francisco Sheriff’s Department of strip
searching all arrestees upon introduction into the general jail
population did not violate the Fourth Amendment, and
therefore reversed the district court’s denial of the sheriff’s
motion for summary judgment based upon qualified
immunity. 595 F.3d at 966.

     The plaintiffs argue we should disregard Powell and Bull
because they were decided after the strip searches at issue
here and were therefore unknown to Dillard at the relevant
time. Alternatively, they would have us distinguish these
cases because they addressed the rights of persons being
booked into a general jail population for “housing them
overnight or longer.” The plaintiffs also point to other cases
they say gave Dillard “fair warning” that strip searching the
plaintiffs was unconstitutional. These include a March 2002
decision of the District Court observing that “[m]ost federal
courts of appeals” had agreed “that strip searches of
individuals arrested for minor offenses violate the Fourth
Amendment unless the individual is reasonably suspected of
concealing weapons, drugs, or other contraband,” Helton v.
United States, 191 F. Supp. 2d 179, 184 (D.D.C. 2002), an
unpublished Ninth Circuit decision, ACT UP!/Portland v.
Bagley, No. 93-35592, 1995 WL 375822, at ∗5 (June 22,
1995), denying qualified immunity to the Deputy Marshals
who had strip searched demonstrators who had been arrested,
and the Memorandum of Agreement in Morgan v. Barry, Civ.
A. No. 81-1419, discussed above at 3 n.∗.
                                  10
     We conclude 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 was then, as it is now,
Bell v. Wolfish, and nothing in Bell requires individualized,
reasonable suspicion before strip searching a person entering
a detention facility. To the contrary, as the Eleventh Circuit
would later point out, “The Bell decision means that the
Fourth Amendment does not require reasonable suspicion for
this type of strip search in detention facilities.” Powell, 541
F.3d at 1308.

     The dissent places great weight upon a passage in Wilson
v. Layne in which the Supreme Court suggested the plaintiffs
there could have prevailed by identifying “a consensus of
[lower court] cases of persuasive authority such that a
reasonable officer could not have believed that his actions
were lawful.” 526 U.S. 603, 617 (1999). We are aware of no
Supreme Court case, however, that suggests a reasonable
officer could not have believed his actions were lawful
despite a consensus among the courts of appeals when a
precedent of the Supreme Court supports the lawfulness of his
conduct.

     A different reading of Bell by the several circuits to have
considered the issue before 2002 could not “clearly establish”
the unconstitutionality of strip searches in this context. That
Powell and Bull came down after 2002 is of no moment; those
opinions simply accord with our own understanding that Bell
did not establish the unconstitutionality of a strip search under
conditions like those present here. ∗ 1 WILLIAM BLACKSTONE,

∗
 Since oral argument in this case, the Third Circuit has joined the
Eleventh and the Ninth Circuits in upholding the constitutionality
of strip searching all arrestees upon their introduction into a general
                                11
COMMENTARIES ∗70–71 (If a “judge may mistake the law,”
then “subsequent judges do not pretend to make a new law,
but to vindicate the old one from misrepresentation”). Indeed,
the Eleventh Circuit expressly considered and rejected the
pre-2002 decisions of the circuits requiring reasonable,
individualized suspicion before conducting a strip search at a
detention facility, Powell, 541 F.3d at 1306–07, and the Ninth
Circuit likewise rejected those decisions requiring reasonable,
individualized suspicion before strip searching an arrestee
entering a general jail population, Bull, 595 F.3d at 980–81.
In other words, those courts did not believe the prior decisions
upon which the plaintiffs rely had established — much less
clearly established — that strip searches of the sort here at
issue were unconstitutional. Why, then, should Marshal
Dillard have believed that?

     Clearly, it was reasonable for Dillard, like the courts of
appeal that reached the issue after 2002, to believe strip
searching all male arrestees was consistent with the law as set
forth in Bell and as implemented by the USMS in Policy
Directive No. 99-25. The correctional center in Bell, like the
Superior Court cellblock, was used primarily to house not
convicts but persons awaiting their appearance in court. 441
U.S. at 524. The dissent makes much of the distinction
between “pretrial detainees” and “pre-arraigned arrestees” in
its attempt to distinguish this case from Bell. As the court in

jail population. Florence v. Bd. of Chosen Freeholders, 621 F.3d
296 (3d Cir. 2010); but see Jimenez v. Wood Cnty., 621 F.3d 372,
375–76 (5th Cir. 2010) (following circuit precedent in holding
reasonable suspicion is required to strip search an individual
arrested for a minor offense); Stearns v. Clarkson, 615 F.3d 1278,
1282 (10th Cir. 2010) (circuit precedent clearly established “a
detainee who is not placed in the general prison population cannot
be strip searched” without reasonable suspicion) (internal quotation
marks and citation omitted).
                               12
Powell observed, however, “The policy that the Court
categorically upheld in Bell applied to all inmates, including
those charged with lesser offenses and even those charged
with no wrongdoing at all who were being held as witnesses
in protective custody.” 541 F.3d at 1307. Thus, the purported
distinction “finds no basis in the Bell decision, in the
reasoning of that decision, or in the real world of detention
facilities.” Id. at 1310. Because many arrestees, including
“[d]emonstrators or protestors engaged in civil disobedience,
... have all the time they need to plan their arrests and conceal
items on their persons,” id. at 1313–14, we have no reason to
believe arrested demonstrators are any less a threat to security
than are pretrial detainees.

     Furthermore, the Court’s rationale in Bell applies equally
to any detention facility that is “fraught with serious security
dangers,” id. at 559, as was the cellblock at the Superior
Court, where often hundreds of arrestees were processed in a
single day. Contrary to the plaintiffs’ contention, nothing
whatsoever in Bell suggests its holding is limited to overnight
detention facilities. Cf. Powell, 541 F.3d at 1310 (“The need
for strip searches at all detention facilities ... is not
exaggerated”) (emphasis added). Nor — despite the emphasis
our dissenting colleague places upon “intermingling” with
other arrestees or detainees — did the Court in Bell anywhere
mention, let alone rely upon, such intermingling as a reason
for upholding the strip searches. In any event, arrestees held
at the Superior Court were in fact commingled with other
arrestees in holding cells; no one suggests each arrestee was
put in a separate cell.

     Moreover, the Court in Bell upheld strip searches even
though “there ha[d] been only one instance where an MCC
inmate was discovered attempting to smuggle contraband into
the institution on his person.” 441 U.S. at 559. As the Court
                               13
speculated, the dearth of incidents may be a “testament to the
effectiveness of this search technique as a deterrent.” Id. Be
that as it may, the record here substantiates Dillard’s point
that the Superior Court had a persistent problem with
contraband being smuggled into the cellblock, the very reason
for strip searches contemplated in subsection (f) of Policy
Directive No. 99-25. Furthermore, the strip searches at the
Superior Court were no more intrusive than those upheld as
reasonable in Bell, where a male was required to “lift his
genitals and bend over to spread his buttocks for visual
inspection.” 441 U.S. at 558 n.39.

     Contrary to our dissenting colleague’s assertion,
decisions of the courts of appeals reached after the events here
in suit are relevant to the issue of qualified immunity. In
determining whether an official is entitled to qualified
immunity, courts focus upon the state of the law “at the time
[the] action occurred” because “i[f] the law at that time was
not clearly established,” then the official “could not
reasonably be expected to anticipate subsequent legal
developments.” Harlow, 457 U.S. at 818. The point is not, as
the dissent would have it, to deny an official the benefit of
subsequent cases reflecting the uncertain state of the law at
the time of his action. As the Supreme Court in Pearson said
of its earlier decision in Wilson v. Layne, there “a Circuit split
on the relevant issue had developed after the events that gave
rise to suit”; the Court nonetheless “concluded that ‘[i]f
judges thus disagree on a constitutional question, it is unfair
to subject police to money damages for picking the losing side
of the controversy.’” Pearson, 129 S. Ct. at 823 (quoting 526
U.S. at 618). So, too, here would it be unfair to subject
Dillard to money damages for having relied upon the
Supreme Court’s decision in Bell.
                              14
                       III. Conclusion

     Because there was in 2002 no clearly established
constitutional prohibition of strip searching arrestees without
individualized, reasonable suspicion, we need not consider
whether Dillard had individual suspicion as to each of the
plaintiffs. The order of the district court is reversed and the
case is remanded for that court to enter summary judgment for
the defendant.

                                                   So ordered.
     ROGERS, Circuit Judge, dissenting:          Contrary to the
principles underlying qualified immunity as a limitation on the
occasions when liability for unconstitutional conduct by a
public official will be excused, the majority holds the conduct
is to be evaluated by recently articulated law and not, as the
Supreme Court has instructed, by the clearly established law
reflected in the consensus of persuasive authority at the time of
the conduct. In so doing, this is the first time a circuit court of
appeals has suggested that the protections of the Fourth
Amendment to the Constitution against unreasonable searches
do not extend to an individual arrested for a non-violent minor
offense who is awaiting arraignment apart from the general
population of detainees, and is subjected to a strip search in the
absence of reasonable suspicion he is hiding contraband or
weapons. This runs contrary to the consensus of ten circuit
courts of appeals at the time of the challenged strip searches.
To reach this result the majority tramples over Supreme Court
precedent and gives short shrift to the protections of the Fourth
Amendment. Accordingly, I respectfully dissent.

                                I.

     The former United States Marshal for the District of
Columbia appeals on the ground that he is entitled to qualified
immunity with respect to the alleged violations of the Fourth
Amendment by peaceful protesters who in 2002 were subjected
to pre-arraignment strip searches at the D.C. Superior Court cell
block.1 The plaintiffs came to the Nation’s Capital to protest
the policies of the International Monetary Fund and the World
Bank on the occasion of the institutions’ annual meetings on
September 27, 2002. They were arrested for either of two non-
violent misdemeanors, “incommoding,” D.C. Code § 22-1307,

        1
          See Bivens v. Six Unknown Named Agents of Fed. Bureau
of Narcotics, 403 U.S. 388 (1971).
                               2

or failure to obey a police officer, id., § 22-1121. They
remained together while in police custody throughout the day,
and they were allowed to keep their personal property, such as
knapsacks. Upon being turned over to the custody of the U.S.
Marshals Service at the D.C. Superior Court, they were patted
down and screened by a magnetometer before entering the cell
block; no contraband or weapons were found. They then were
subjected to drop-squat-and-cough strip searches; no contraband
or weapons were found. They were released from custody upon
being arraigned by a judicial officer of the Superior Court
without being intermingled with other arrestees or committed to
a detention facility to await trial. See Bame, et al. v. Dillard,
647 F. Supp. 2d 43, 47–48 (D.D.C. 2009).

     Two Supreme Court cases elucidate the relevant qualified
immunity principles that the majority ignores in relying on
developments in the law subsequent to the challenged strip
searches. First, in Harlow v. Fitzgerald, 457 U.S. 800 (1982),
the Supreme Court held that “government officials performing
discretionary functions generally are shielded from liability for
civil damages insofar as their conduct does not violate clearly
established statutory or Constitutional rights of which a
reasonable person would have known.” Id. at 818. The Court
observed:

         Reliance on the objective reasonableness of an
         official’s conduct, as measured by reference to clearly
         established law, should avoid excessive disruption of
         government and permit the resolution of many
         insubstantial claims on summary judgment. On
         summary judgment, the judge appropriately may
         determine, not only the currently applicable law, but
         whether that law was clearly established at the time an
         action occurred.
                                3

Id. (emphasis supplied and footnote omitted). The Court
emphasized that “[b]y defining the limits of qualified immunity
essentially in objective terms, we provide no license to lawless
conduct.” Id. at 819. Thus, “[w]here an official could be
expected to know that certain conduct would violate statutory
or Constitutional rights, he should be made to hesitate; and a
person who suffers injury caused by such conduct may have a
cause of action.” Id. at 819.

     While emphasizing that “a reasonably competent public
official should know the law governing his conduct,” id. at 819,
the Court reserved judgment on the “circumstances under which
‘the state of the law’ should be ‘evaluated by reference to the
opinions of this Court, of the Courts of Appeals, or of the local
District Court,’” id. at 819 n.32 (quoting Procunier v.
Navarette, 434 U.S. 555, 565 (1978)). In Wilson v. Layne, 526
U.S. 603 (1999), the Court resolved this dilemma by concluding
that “cases of controlling authority in their jurisdiction” or “a
consensus of cases of persuasive authority” could suffice. Id.
at 617. In Harlow, the Court had observed that “an official
could not reasonably be expected to anticipate subsequent legal
developments.” 457 U.S. at 818. Rather, the law at the time of
the challenged conduct would be the measure of his eligibility
for qualified immunity. See id.

     Second, in Safford Unified School District No. 1 v.
Redding, 129 S. Ct. 2633 (2009), the Supreme Court, continuing
to focus on the law at the time of the challenged conduct,
reiterated that there need not be a prior factually
indistinguishable case in order for qualified immunity to be
denied: “there is no need that ‘the very action in question [have]
previously been held unlawful.’” Id. at 2643 (quoting Wilson v.
Layne, 526 U.S. 603, 615 (1999) (alteration in original)).
Although “[t]he unconstitutionality of outrageous conduct
obviously will be unconstitutional,” the Court observed that
                                 4

“even as to action less than an outrage, officials can still be on
notice that their conduct violates established law . . . in novel
factual circumstances.” Id. at 2643 (quoting Hope v. Pelzer,
536 U.S. 730, 741 (2002) (alteration in original)).

     Prior to the events in Redding, the issue regarding searches
of students had been addressed in only a handful of cases and
they went both ways. Id. at 2643–44. The Court, therefore,
focused on the extent to which the mixed case law suggested
that a previous Supreme Court decision, New Jersey v. T.L.O.,
469 U.S. 325 (1985), did not definitively resolve the issue. Id.
The analysis is different in the instant case because in 2002 the
law of the circuit courts of appeals was uniform and had been
for some time, much as in Pearson v. Callahan, 129 S. Ct. 808,
822–23 (2009), where the Supreme Court concluded the
narcotics task force officers were entitled to rely on the
consensus among the courts at the time they allowed the media
to accompany them upon entering Pearson’s home that their
conduct did not violate the Fourth Amendment, despite the lack
of a ruling from the officers’ own federal circuit, id. at 823.
Marshal Dillard characterizes the Supreme Court’s decision in
Bell v. Wolfish, 441 U.S. 520 (1979), as permitting visual body-
cavity inspections in an institutional setting for security reasons,
and thus permitting the challenged strip searches. This
characterization, however, fails to take into account the question
left open in Bell, the evolution of the law addressing that
question between 1979 and 2002, or the factual differences
between the judicially committed pretrial detainees in Bell and
the pre-arraignment arrestees in the instant case.

                               A.
     Bell v. Wolfish involved the treatment of pretrial detainees
who had been committed to “a federally operated short-term
custodial facility in New York City designed primarily to house
pretrial detainees” that also housed “some convicted inmates
                                5

who are awaiting sentencing or transportation to a federal prison
or who are serving generally relatively short sentences.” 441
U.S. at 523–24. After “every contact visit with a person from
outside the facility,” the pretrial detainees were “required to
expose their body cavities for visual inspection as a part of a
strip search”: if male, “he must lift his genitals and bend over to
spread his buttocks for visual inspection[,]” if female, “vaginal
and anal cavities . . . are visually inspected.” Id. at 558 & n.39.
The district court had ruled that body-cavity searches were
permissible only upon a contemporaneous showing of probable
cause to believe the inmate is concealing contraband. See
United States ex rel. Wolfish v. Levi, 439 F. Supp. 114, 148
(S.D.N.Y. 1977). The Supreme Court reversed, holding that,
assuming pretrial detainees “retain some Fourth Amendment
rights upon commitment to a corrections facility,” Bell v.
Wolfish, 441 U.S. at 558, there are circumstances in which a
strip search can be conducted “on less than probable cause,”
without clarifying what the standard actually is, id. at 560.
Although stating that “[a]dmittedly, this practice instinctively
gives us the most pause,” the Court held that “under the
circumstances, we do not believe that these searches are
unreasonable.” Id. at 558. The Court noted with regard to the
pretrial detainees that “[u]nder the Bail Reform Act, 18 U.S.C.
§ 3146, a person in the federal system is committed [by a
judicial officer after a hearing] to a detention facility only
because no other less drastic means can reasonably ensure his
presence at trial.” Id. at 524; see 18 U.S.C. § 3142(e). The
Court further observed that “[a] detention facility is a unique
place fraught with serious security dangers,” Bell, 441 U.S. at
559, noting that “[s]muggling of money, drugs, weapons, and
other contraband is all too common an occurrence,” id.

     In Bell the Court stated that the “test of reasonableness
under the Fourth Amendment” is “a balancing of the need for
the particular search against the invasion of personal rights that
                                6

the search entails.” Id. at 559. It reasoned that “maintaining
institutional security and preserving internal order and
discipline are essential goals that may require limitation or
retraction of the retained constitutional rights of both convicted
prisoners and pretrial detainees,” and that infringement of
constitutional guarantees “must be evaluated in the light of the
central objective of prison administration, safeguarding
institutional security.” Id. at 546–47. Concluding both that “[a]
detention facility is a unique place fraught with serious security
dangers,” id. at 559 (emphasis added), and that “[t]he searches
must be conducted in a reasonable manner,” id. at 560, the
Court emphasized that it was addressing only one question as to
the committed pretrial detainees: “whether visual body-cavity
inspections as contemplated by the [detention facility’s] rules
can ever be conducted on less than probable cause.” Id.
(emphasis in the original). Upon “[b]alancing the significant
and legitimate security interests of the institution against the
privacy interests of the inmates,” the Court “conclude[d] that
they can.” Id.

     The question remaining after Bell was whether strip
searches of individuals arrested for non-violent minor offenses
who are not committed to a detention facility to await trial are
reasonable under the Fourth Amendment in the absence of
reasonable suspicion the arrestee is hiding contraband or
weapons. Lower courts applied Bell’s balancing test, noting that
the Supreme Court had approved strip searches of pretrial
detainees only where objective circumstances indicated they
were needed to maintain institutional security, and not as
validating a blanket policy of strip searching all pretrial
detainees. See, e.g., Masters v. Crouch, 872 F.2d 1248, 1253
(6th Cir. 1989); Mary Beth G. v. City of Chicago, 723 F.2d
1263, 1272 (7th Cir. 1983). The Fourth Circuit, in holding
unconstitutional strip searches of arrestees who would not be
intermingled with the general jail population and were accused
                                 7

of crimes not associated with concealing contraband, identified
four factors that weighed against strip searching: (1) the plaintiff
would not be intermingled with the general jail population; (2)
the offense was not one usually associated with possession of
weapons or contraband; (3) there was no cause to believe the
particular detainee might possess either; and (4) when the search
was conducted the plaintiff had been at the detention center for
one and one-half hours “without even a pat-down search.”
Logan v. Shealy, 660 F.2d 1007, 1013 (4th Cir. 1981), cert.
denied sub nom. Clements v. Logan, 455 U.S. 942 (1982). The
following year the Seventh Circuit rejected strip search
distinctions between male and female arrestees as a denial of
equal protection, stating that the City of Chicago had “failed to
show that men and women minor offenders are not similarly
situated,” Mary Beth G., 723 F.2d at 1274 (emphasis in
original), and concluding that a strip search of misdemeanor
arrestees in City lockups while awaiting arrival of bail money
was impermissible absent “a reasonable suspicion by the
authorities that either of the twin dangers of concealing weapons
or contraband existed,” id. at 1273. The Ninth and Tenth
Circuits adopted a similar approach in balancing the interests
identified in Bell, and concluded that intermingling with other
arrestees or detainees did not necessarily justify strip searches.
See Giles v. Ackerman, 746 F.2d 614, 618–19 (9th Cir. 1984),
cert. denied, 471 U.S. 1053 (1985), overruled on other grounds
by, Hodgers-Durgin v. de la Vina, 199 F.3d 1037, 1040 (9th Cir.
1999) (en banc); Hill v. Bogans, 735 F.2d 391, 394 (10th Cir.
1984). The Second Circuit in Weber v. Dell, 804 F.2d 796 (2d
Cir. 1986), adopted an analysis like that of the Fourth Circuit, id.
at 801–02, and noted the ten like opinions from seven circuit
courts of appeals, id. at 801, in rejecting as too broad a reading
of Bell that “suggest[s], much less require[s]” strip searches of
all arrested persons held at a jail in the interest of institutional
security, id. at 801. The Sixth Circuit, in view of its precedent
                                8

and that of other circuit courts of appeals, concluded, in 1989,
that:

         it was clearly established in October 1986 that
         authorities may not strip search persons arrested for
         traffic violations and nonviolent minor offenses solely
         because such persons ultimately will intermingle with
         the general population at a jail when there were no
         circumstances to support a reasonable belief that the
         detainee will carry weapons or other contraband into
         the jail. It is objectively reasonable to conduct a strip
         search of one charged with a crime of violence before
         that person comes into contact with other inmates.
         There is an obvious threat to institutional security.

Masters, 872 F.2d at 1255. Thus, prior to 2002 all ten of the
circuit courts of appeal to address the open question from Bell
held that strip searches of arrestees for non-violent minor
offenses in the absence of reasonable suspicion were
unreasonable under the Fourth Amendment.

                               B.
     As the district court found, and the majority does not
dispute, Maj. Op. at 8 n.*, “[u]ntil 2008, every federal circuit
court of appeals to have addressed the issue (ten out of twelve)
ruled that, under Bell, suspicionless strip searches of pre-trial
arrestees charged with non-violent minor offenses was
unreasonable and thus unconstitutional.” Bame v. Dillard, 647
F. Supp. 2d 43, 51 (D.D.C. 2009). The district court cited:
Wilson v. Jones, 251 F.3d 1340, 1343 (11th Cir. 2001); Swain v.
Spinney, 117 F.3d 1, 7 (1st Cir. 1997); Masters, 872 F.2d at
1250 (6th Cir.); Weber, 804 F.2d 796 (2d Cir.); Stewart v.
Lubbock County, 767 F.2d 153, 156 (5th Cir. 1985); Jones v.
Edwards, 770 F.2d 739 (8th Cir. 1985) ; Giles, 746 F.2d at
616–18 (9th Cir.); Hill, 735 F.2d at 394 (10th Cir.); Mary Beth
                               9

G., 723 F.2d 1263 (7th Cir.); and Logan, 660 F.2d at 1013 (4th
Cir.). Each of these circuit courts of appeals held either that
reasonable suspicion was required regardless of whether the
arrestee was intermingled with other arrestees or that reasonable
suspicion was required when the arrestee did not so intermingle.
“In other words, at the time of the searches at issue here
(September 2002), all these courts, some for nearly twenty-five
years, required at least reasonable suspicion to strip search a
pre-trial or pre-arraignment arrestee charged with a non-violent,
non-drug crime.” Bame, 647 F. Supp. 2d at 51.

     The law in the District of Columbia as of 2002 reflected the
consensus of the circuit courts of appeal. In 1982, in a case
pending in the U.S. District Court for the District of Columbia
involving female protesters, the District government entered into
a memorandum of agreement that strip and squat searches of
females arrested for non-violent misdemeanors could be
conducted only where there is reasonable suspicion the arrestee
is carrying a weapon, contraband, or evidence that officers
reasonably believe can only be discovered by a strip or squat
search or, in some circumstances, when the arrestee is going to
be placed in the general inmate population. Morgan v. District
of Columbia, No. 81-1419 (D.D.C. July 22, 1981); see Bame,
647 F. Supp. 2d at 47. Although Marshal Dillard argues that the
Morgan agreement concerned only female arrestees and did not
bind him, the district court noted that it bound the District of
Columbia and that Marshal Dillard was familiar with it, Bame,
647 F. Supp. 2d at 47 (citing depositions of Marshal Dillard and
his Deputy). Marshal Dillard concedes that a case applying the
Morgan agreement, Morgan v. Barry, 596 F. Supp. 897, 899
(D.D.C. 1984), required reasonable individualized suspicion
before permitting the challenged strip search procedure.

     Additionally, the settlement in Helton v. United States, 191
F. Supp. 2d 179, 185 (D.D.C. 2002), put the Marshals Service in
                               10

the District of Columbia directly on notice six months before the
challenged strip searches that they were unconstitutional absent
individualized reasonable suspicion. Although Helton involved
the Federal Tort Claims Act and District of Columbia tort law
rather than the Fourth Amendment, the Constitutional issue was
directly implicated because the government argued that plaintiffs
(who were anti-fur protesters at a Neiman Marcus department
store) were required to prove that the strip and squat search
ordered by the U.S. Marshals Service was unconstitutional in
order to prevail on their intrusion-upon-seclusion tort claim.
The district court ruled that plaintiffs had adequately alleged a
Constitutional violation by the U.S. Marshals Service to the
extent doing so was required to prevail on the non-constitutional
tort claim, noting the “wealth of case law” requiring reasonable
suspicion:

         Although almost every federal court of appeals has
         ruled that strip searches of individuals arrested for
         nonviolent misdemeanors or other minor offenses
         violate the Fourth Amendment absent “reasonable
         suspicion,” this Circuit has yet to address the issue. The
         District Court reached the issue in Doe v. Berberich,
         704 F. Supp. 269 (D.D.C. 1988). . . . The court’s
         central holding is in line with virtually every other
         decision on this issue: “[t]here must be reasonable
         suspicion that the category of offenders subject to strip
         searches might possess weapons or contraband.” Id. at
         271. The court then held that the strip searches were
         constitutional even though plaintiffs were charged only
         with misdemeanors, because the police had complied
         with governing regulations and had reasonable
         suspicion to believe plaintiffs were concealing
         contraband or drugs, given the nature of the offense of
         possession of a controlled substance. Id. at 272.
                                 11

Helton, 191 F. Supp. 2d at 185. In Doe v. Berberich, the district
court noted precedent rejecting different strip search
requirements for female and male arrestees. 704 F. Supp. at 271
(citing Mary Beth G. v. City of Chicago, 723 F.2d 1263 (7th Cir.
1983)).

     Reflecting this state of the law, the United States Marshals
Service Policy issued in July 1999 instructed that members of
the Marshals Service were authorized to conduct strip searches
“when there is reasonable suspicion that the prisoner may be (a)
carrying contraband and/or weapons, or (b) considered to be a
security, escape, and/or suicide risk.”2 USMS Policy 99-25 at 3.
The Policy made no distinction between male and female
arrestees, and it included a non-exclusive list of six criteria on
which to base reasonable suspicion.3


        2
          Marshal Dillard has not claimed that the plaintiffs presented
individualized security, escape, and/or suicide risks.
        3
        The Policy listed six non-exclusive criteria, one or more of
which may provide the basis for concluding reasonable suspicion
exists:

        a. Serious nature of the offense(s) charged, i.e., whether crime
        of violence or drugs;
        b. Prisoner’s appearance or demeanor;
        c. Circumstances surrounding the prisoner’s arrest or
        detention[,] i.e., whether the prisoner has been convicted or is
        a pretrial detainee;
        d. Prisoner’s criminal history;
        e. Type and security level of institution in which the prisoner
        is detained; or
        f. History and discovery of contraband and/or weapons, either
        on the prisoner individually or in the institution in which the
        prisoners are detained.
                               12

     The district court found that Marshal Dillard and his Deputy
“received annual training on the constitutional and legal
standards in regard to searches and strip searches,” Bame, 647
F. Supp. 2d at 47 (citing depositions of Marshal Dillard and his
Deputy), in addition to being familiar with then-recent litigation
in the District of Columbia challenging strip searches of female
protesters, id. Further, the district court found that Marshal
Dillard did “not seriously contend that no justification was
required for the [‘Drop, Squat, and Cough’ strip] search,” but
simply “did not develop any justification for strip searching the
protester-arrestees, despite the balancing called for in the USMS
Policy dating back to 1999.” Bame, 647 F. Supp. 2d at 51–52;
see id. at 46.

     According to Marshal Dillard, in September 2002 the policy
in the District of Columbia was to perform drop-squat-and-
cough strip searches of all persons in Marshals Service custody
who came into the Superior Court cell block. See Dillard
Deposition at 23 (May 29, 2008). This policy applied, as the
plaintiffs’ experiences show, even to those who had been
arrested for non-violent minor offenses where extensive pat-
downs of clothed arrestees and a magnetometer metal detector
revealed no contraband or weapons, and the arrestees were not
to be intermingled with other arrestees and had not been
arraigned or committed to a detention facility to await trial. The
district court ruled that the blanket policy violated the national
USMS Policy 99-25 and that in view of the post-Bell case law
consensus, the blanket policy and the strip searches of the
plaintiffs were unreasonable under the Fourth Amendment. Id.
at 51–52; see id. at 47–48.




USMS Policy 99-25 at 3.
                                 13

                                 II.

      Marshal Dillard’s position on appeal, that because Bell
allowed strip searches in some circumstances and there was no
case law to the contrary addressing exactly the same
circumstances as in the instant case, the challenged strip
searches could not be considered clearly unconstitutional, is
without merit as a matter of Supreme Court precedent, Court of
Appeals precedent, and local District Court precedent. See
Harlow, 457 U.S. at 818 n.32; supra Part I. Indeed he goes so
far as to contend that, contrary to “a consensus of cases of
persuasive authority,” Wilson v. Layne, 526 U.S. at 617, the U.S.
Marshals Service was free to conclude that strip searches in the
absence of individualized articulable suspicion were
constitutional if a District of Columbia appellate court or the
Supreme Court had not addressed the issue. See Appellant’s Br.
at 28–29. The majority’s analysis is no less troubling inasmuch
as it confuses the roles of the court and the public official under
qualified immunity analysis. The Supreme Court has repeatedly
rejected the notion that a “reasonably competent public official,”
Harlow, 457 U.S. at 819, would not be bound to know the
“consensus of persuasive authority” from other circuits much
less his own district court by concluding that plaintiffs may
bring to the court either “cases of controlling authority in their
jurisdiction at the time of the incident which clearly established
the rule on which they seek to rely, [ ]or . . . a consensus of cases
of persuasive authority such that a reasonable officer could not
have believed that his actions were lawful,” Wilson v. Layne,
526 U.S. at 617; see Pearson, 129 S. Ct. at 823.

                                A.
    Strip searches, as Bell makes clear and the district court
acknowledged, must balance strong institutional security
concerns of a detention facility and deference to prison officials
against the Fourth Amendment’s protections. Bame, 647 F.
                                14

Supp. 2d at 52 (citing Allison v. GEO Group, Inc., 611 F. Supp.
2d 433, 462 (E.D. Pa. 2009)); see Bell, 441 U.S. at 559, 560.
Not once, before or after 2002, has a circuit court of appeals, or
the Supreme Court, held that pre-arraignment arrestees for non-
violent minor offenses who are held apart from other arrestees
and pretrial detainees may be strip searched on less than
reasonable suspicion that they are hiding contraband or
weapons. More recent cases include Jimenez v. Wood Cnty.,
621 F.3d 372 (5th Cir. 2010); Sterns v. Clarkson, 615 F.3d 1278
(10th Cir 2010); Archuleta v. Wagner, 523 F.3d 1278, 1282,
1286 (10th Cir. 2008); and Campbell v. Miller, 499 F.3d 711,
718 (7th Cir. 2007). The recent decision of the Third Circuit in
Florence v. Board of Chosen Freeholders of the County of
Burlington, 621 F.3d 296 (3d Cir. 2010) (decided after briefing
in the instant case), also does not upset the appellate courts’
consensus, for the only question presented was “whether it is
constitutional for jails to strip search arrestees upon their
admission to the general population,” id. at 298 . Marshal
Dillard’s attempt to distinguish the Ninth Circuit’s opinion in
Giles, 746 F.2d at 617 — which held unconstitutional strip
searches without reasonable suspicion that an individual arrested
for a minor traffic offense possessed a weapon or contraband —
as involving a jail that historically had experienced fewer
contraband problems than the D.C. Superior Court cell block,
ignores that the arrestee in Giles was placed in the general jail
population, 746 F.2d at 616. And he apparently ignores that the
approach adopted by the Supreme Court in Harlow and its
progeny, focusing on whether at the time of a public official’s
challenged conduct a “doctrine had gained acceptance in the
lower courts,” Pearson, 129 S. Ct. at 822 (even if his “own
Federal Circuit had not yet ruled,” id. at 823), protects officials
who abide by that consensus from incurring liability for their
conduct, see id. at 823.
                                15

     Marshal Dillard’s reliance on post-2002 decisions is doubly
flawed. Under Supreme Court qualified immunity precedent,
circuit court of appeals decisions since the strip searches at issue
in 2002 have no bearing on whether he is entitled to qualified
immunity on the ground that there was no clearly established
law to be followed in 2002. See Pearson, 129 S.Ct. at 823;
Wilson v. Layne, 526 U.S. at 617; Harlow, 457 U.S. at 818. But
taken on their own merit the post-2002 cases are distinguishable
on their facts and do not demonstrate that the law was unsettled
in 2002, much less after. The Eleventh Circuit’s en banc
reconsideration of Bell in Powell v. Barrett, 541 F.3d 1298 (11th
Cir. 2008), involved strip searches of “all arrestees as part of the
process of booking them into the general population of a
detention facility,” id. at 1300, and the holding was limited to
general population detainees, notwithstanding some of its more
sweeping language suggesting broader applicability. See id. at
1300, 1314. Similarly, the Ninth Circuit’s 2010 en banc
reconsideration of Bell was explicit in stating that although it
was upholding against a Fourth Amendment facial challenge a
policy allowing strip searches of all pre-arraignment arrestees
introduced into the general jail population for custodial housing,
“[w]e do not, however, disturb our prior opinions considering
searches of arrestees who were not classified for housing in the
general jail or prison population” and that “[t]he strip search
policy at issue in this case, and our holding today, applies only
to detainees classified to enter the general corrections facility
population.” Bull v. City and County of San Francisco, 595 F.3d
964, 981 & n.17 (9th Cir. 2010). It is clear from this language
that the Ninth Circuit sitting en banc in Bull took pains not to
disturb the well-settled case law requiring reasonable suspicion
to strip search arrestees who are not placed in the general jail
population. Moreover, distinguishable as these cases are, it
bears noting that it required decisions by the en banc courts to
revisit Bell, suggesting that absent en banc review the issue was
clearly established in those circuits
                                 16

     Marshal Dillard’s response, relying on Evans v. Stephens,
407 F.3d 1272 (11th Cir. 2005), Savard v. Rhode Island, 338
F.3d 23, 31–33 (1st Cir. 2003), and Oxley v. Penobscot County,
714 F. Supp. 2d 180 (D. Me. 2010), does not advance his cause.
In Evans, 407 F.3d at 1278–79, the Eleventh Circuit
distinguished Bell because the strip search was conducted by the
arresting officer for the purpose of obtaining evidence, and not
in order to prevent contraband from entering the general jail
population. And, in any event, the court denied qualified
immunity despite the absence of Supreme Court precedent
explicitly addressing the standard to be applied. Id. at 1279,
1283. In Savard, 338 F.3d at 26, 31–33, the First Circuit
allowed strip searches of misdemeanor arrestees who had not
generally been searched before and were intermingled with
violent offenders at the maximum security prison, as
distinguished from a local jail or police station, which the court
concluded was dispositive. In Oxley, 714 F. Supp. 2d at 181 &
n.3, the Maine district court did not reach the Constitutional
question, instead affirming a magistrate judge’s recommendation
of qualified immunity for an officer conducting a strip search
who incorrectly but reasonably believed there was a valid
reasonable articulable suspicion that the plaintiff was carrying
contraband, because the plaintiff failed timely to object to the
grant of summary judgment. See also id. at 184 n.4. Given that
the district court’s interpretation of Bell in Oxley is diametrically
opposed to that of Marshal Dillard, id. at 183–86, it is unclear
how he has concluded the case could help his cause.

     In sum, Marshal Dillard’s reference to a circuit split on
certain strip search law questions is unpersuasive for purposes
of qualified immunity because there was not a split in 2002. His
contention that “[a]lthough only the law that existed before
September 2002 can be relied upon to establish its clarity in
2002, the reasonableness of [his] conduct is properly analyzed
considering the application of cases more recent than 2002,”
                                 17

Reply Br. 21, fails for at least two reasons. First, it ignores
Supreme Court precedent that, in order to secure Fourth
Amendment protections, “a reasonably competent public
official” must “know the law governing his conduct” and “that
certain conduct would violate statutory or constitutional rights,”
Harlow, 457 U.S. at 819. A decrease in clarity of the law after
2002 would not make a strip search in 2002 more reasonable.
Second, none of the cases cited by Marshal Dillard upset the
consensus of circuit courts of appeals “that authorities may not
strip search persons arrested for . . . nonviolent minor offenses
solely because such persons ultimately will intermingle with the
general population at a jail when there were no circumstances to
support a reasonable belief that the detainee will carry weapons
or other contraband into the jail.” Masters, 872 F.2d at 1255,
quoted supra page 8. His suggestion that the number of cases
discussing strip searches indicates that the law is uncertain also
is unpersuasive because the cases reach the same result. Indeed,
as a further indication of this stability, most recently (after briefs
in this case had been filed) the Tenth Circuit in Stearns v.
Clarkson, 615 F.3d 1278 (10th Cir. 2010), held that a sergeant
was not entitled to qualified immunity for strip searching an
arrestee at a county jail without reasonable suspicion where the
arrestee was not placed in the general inmate population
although the officer who performed the strip search had been
told that the arrestee was “‘going around following officers, and
going to their homes, making threats.’” Id. at 1287. The court
concluded that the threats did not supply “specific and
articulable facts” suggesting a reasonable suspicion that the
arrestee was carrying contraband, and the officer’s conduct was
therefore contrary to clearly established law, including
controlling circuit precedent. Id.

    To the extent Marshal Dillard suggests that the national
USMS Policy 99-25 allowed a blanket, non-particularized strip
search if an arrestee was entering a facility with a history of
                               18

smuggled contraband, that Policy itself states that strip searches
must be based on reasonable suspicion that a prisoner may be
carrying contraband or weapons or may be a security risk, and
that one factor to consider is the “[h]istory of discovery of
contraband and/or weapons, either on the prisoner individually
or in the institution in which prisoners are detained.” A blanket
policy based solely on the history of contraband discovered at
the Superior Court cell block ignores the other factors listed in
Policy 99-25, such as the nature of the offense charged, and the
balancing that Bell contemplates, 441 U.S. at 559, 560.
Moreover, to the extent Marshal Dillard suggests post-2002
events are relevant in evaluating the reasonableness of his
conduct, a blanket policy is inconsistent with the revised
national U.S. Marshals Service policy of April 23, 2003
allowing strip searches only upon an individualized finding of
reasonable suspicion and a supervisor’s approval.

                                 B.
     The majority opinion does not address the specific
Constitutional right asserted here: the right of an individual
arrested for a non-violent minor offense who, unlike in Bell, is
awaiting arraignment to be free from a strip search absent
reasonable suspicion the individual is hiding contraband or
weapons. In Wilson v. Layne, however, the Supreme Court
observed that “[i]t could plausibly be asserted that any violation
of the Fourth Amendment is ‘clearly established,’ since it is
clearly established that the protections of the Fourth Amendment
apply to the actions of police.” 526 U.S. at 615. As a
consequence, the Court held that “the right allegedly violated
must be defined at the appropriate level of specificity before a
court can determine if it was clearly established.” Id. (citing
Anderson v. Creighton, 483 U.S. 635, 641 (1987)). It is
reasonable, as the district court found, to expect Marshal Dillard
as “a reasonably competent public official,” Harlow, 457 U.S.
at 819, to be aware in 2002 of the distinction between the
                                19

institutional concerns arising from judicially committed pretrial
detainees who have had contact visits with persons outside of a
detention facility, as in Bell, and those that arise at a courthouse
cell block with regard to pre-arraignment arrestees for non-
violent minor offenses who have been subjected to pat-downs
and metal magnetometric searches and are not intermingled with
other arrestees or pretrial detainees, and consequently have no
opportunity to smuggle contraband and weapons to others and
thereby threaten institutional security, because the case law
consensus made, that distinction. So does the national U.S.
Marshals Service Policy.

     Instead, the majority, by eliding this distinction leaves any
right so broadly defined that it could plausibly be asserted that
no violation of the Fourth Amendment is “clearly established”
absent an opinion of the Supreme Court or this court addressing
the merits of a Fourth Amendment claim in the particular
circumstances at issue. Absent that, according to the majority,
a reasonable public official ignores the consensus of persuasive
opinion of the circuit courts of appeals, ignores rulings of the
federal district court having jurisdiction over the official’s
conduct, ignores the policy of his own agency summarizing the
current law, and instead hopes that someday a court will
conclude the prior consensus misapprehended Constitutional
protections. Whereas the Supreme Court has acknowledged that
“an official could not reasonably be expected to anticipate
subsequent legal developments,” Harlow, 457 U.S. at 818, the
majority would, in effect, allow a public official to invoke
qualified immunity upon stating: “I reasonably anticipated that
the courts would revise their opinions.” It matters not, or so it
appears if the public official’s attempt at clairvoyance is deemed
reasonable by a court, whether the official’s vatic utterance
comes to fruition. See Maj. Op. at 10-12. Yet the point
underscored by Harlow and its progeny in adopting an objective
standard is to ensure the protection of Constitutional rights by
                               20

limiting qualified immunity claims to those based on the law as
a “reasonably competent public official” would understand it at
the time of his challenged action. Otherwise qualified immunity
as the majority defines it leaves the protection of individual
Constitutional rights to the subjective interpretation of public
officials.

     Most notably, in deciding whether for purposes of qualified
immunity the law was clearly established in 2002, the majority
fails to distinguish, as established by Harlow and its progeny,
between the role of the court to determine whether the law is
“clearly established” at the time of the public official’s
challenged conduct, and the role of the public official to know
and conform his conduct to controlling case law in his
jurisdiction, or if none, to the consensus of cases of persuasive
authority of which a reasonably competent public official should
be aware. In allowing Marshal Dillard to claim qualified
immunity based on post-2002 circuit court of appeals decisions,
the majority returns to the pre-Harlow subjective standard
whereby a public official is empowered to read a Supreme Court
decision on the Fourth Amendment (Bell) as being conclusive on
the constitutionality of strip searches of pre-arraignment
arrestees such as the plaintiffs despite the clearly established
consensus among the other circuit courts of appeals and district
court opinions in the official’s circuit. As the Supreme Court
has adhered to the objective standard adopted in Harlow, the
public official has no such authority. Although this court has
authority to read Bell differently than other circuits, Marshal
Dillard can point to no case law that would allow him to make
that determination, and the majority understandably does not
address the cases he cites — Evans, Savard and Oxley — as they
offer no support for the view that the consensus was weak or
breaking up, see supra Part II.A
                                21

     The majority misses the point in its discussion of how the
ten circuit courts of appeals had interpreted Bell as of 2002.
First, for purpose of claiming qualified immunity the Supreme
Court has already advised public officials of the standard to
which they must conform their conduct: clearly established law
as evidenced by a consensus of persuasive authority at the time
of their conduct. Of course, had the Supreme Court held, or
were this court to hold, that the challenged conduct is
Constitutionally permissible, which the majority does not hold,
then the plaintiffs would have no Bivens claim: “If no
constitutional right would have been violated were the
allegations established, there is no necessity for further inquiries
concerning qualified immunity.” Saucier v. Katz, 533 U.S. 194,
201 (2001). But the subjective belief of a public official about
the law is not the test. But see Maj. Op. at 10-12. Second,
because Bell involved judicially committed pretrial detainees
who had contacts with persons outside of the facility while
housed in a “unique” detention facility with convicted prisoners,
the Court’s particular balancing of “the circumstances,” Bell,
441 U.S. at 558, is of limited relevance. The question left open
in Bell was answered for Marshal Dillard before September
2002 by a consensus of persuasive authority from the circuit
courts of appeals and controlling authority from the federal
district court having jurisdiction over his conduct. These courts,
upon applying Bell’s balancing test, had uniformly held that the
Fourth Amendment protects pre-arraignment arrestees who like
the plaintiffs were arrested for non-violent minor offenses from
strip searches absent reasonable individualized suspicion of
hiding contraband or weapons.

     Additionally, the majority concludes, erroneously, that the
en banc decisions of the Eleventh and Ninth Circuits in Powell
and Bull rejected the prior consensus reading of Bell as regards
pre-arraignment arrestees such as the plaintiffs and conflates this
rejection with a determination that those circuits more recently
                               22

did not see Fourth Amendment law as clearly established in
2002. The majority then uses this mistaken reading of Powell
and Bull to conclude that Marshal Dillard was likewise
empowered to interpret the law as unsettled in 2002. See Maj.
Op. at 10-12. The Eleventh and Ninth Circuits have the authority
to change clearly established law upon rehearing en banc, but
under Supreme Court precedent Marshal Dillard had no such
authority to ignore clearly established law. Even if the post-
2002 en banc decisions in Powell and Bull were relevant in
determining clearly established law in 2002, which they are not,
those holdings are limited to situations in which arrestees are
intermingled with the general jail population and present
institutional security concerns, and thus are distinguishable from
the Constitutional right at issue here.

     As troubling as the majority’s low opinion is of what “a
reasonably competent public official” ought to know of the law
under Harlow and its progeny, more troubling are the
implications of the majority opinion for the protection of
Constitutional rights. Applying the analysis established by the
Supreme Court for determining when a public official may
assert qualified immunity has consequences generally, including
for peaceful protesters who come to the Nation’s Capital to
exercise their First Amendment rights, as well as for any person
arrested for non-violent minor offense not usually associated
with weapons or contraband. Because Constitutional rights are
at risk, the Supreme Court has required that the focus of “a
reasonably competent public official” be on the law as it was
clearly established at the time of his conduct and not on his
subjective hope that the then-settled legal consensus may
change. The Supreme Court aimed to protect Constitutional
rights by limiting the availability of qualified immunity to those
officials who learn the law as it stands before they act and then
act in accordance with that law, not those who apply their
subjective views instead. Otherwise, although public officials
                               23

will not obviously be excused from “outrageous conduct
obviously . . . unconstitutional,” Redding, 129 S. Ct. at 2643,
they may, the Supreme Court foresaw, be excused from liability
for unconstitutional “action less than outrageous,” id., as where
a court finds “the law” anew prior to the conclusion of a
plaintiff’s litigation. 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. Although the analytical
approach that “the law” is there to be found may have
jurisprudential validity in some contexts, see Maj. Op. at 10-11
(citing 1 WILLIAM BLACKSTONE, COMMENTARIES *70–71), but
see Sosa v. Alvarez-Machain, 542 U.S. 692, 725 (2004)
(acknowledging that “there is a general understanding that the
law is not so much found or discovered as it is either made or
created”) (citing Black and White Taxicab & Transfer Co. v.
Brown and Yellow Taxicab & Transfer Co., 276 U.S. 518, 533
(1928) (Holmes, J., dissenting)), it is inapposite under Supreme
Court precedent on qualified immunity.

     Accordingly, I respectfully dissent.
