                                                                           FILED
                            NOT FOR PUBLICATION                             JUN 04 2010

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



KWAI FUN WONG; WU-WEI TIEN                       No. 07-35426
TAO ASSOCIATION,
                                                 D.C. No. CV-01-00718-ST
              Plaintiffs - Appellees,

       v.                                        MEMORANDUM *

DAVID V. BEEBE, a former Immigration
and Naturalization Service (nka
Department of Homeland Security)
Official; UNITED STATES OF
AMERICA,

              Defendants - Appellants.

                    Appeal from the United States District Court
                             for the District of Oregon
                     Robert E. Jones, District Judge, Presiding

                       Argued and Submitted March 3, 2009
                       Submission Withdrawn March 4, 2009
                           Resubmitted May 24, 2010
                                Portland, Oregon

Before: GRABER, FISHER and M. SMITH, Circuit Judges.




        *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Kwai Fun Wong filed this 42 U.S.C. § 1983 action alleging that David V.

Beebe, former director of the Portland, Oregon, district office of the Immigration

and Naturalization Service, violated her Fourth Amendment rights. In 1999, Wong

was detained for five days in Multnomah County jails pending her removal from

the United States. During her detention she was subjected to two strip searches,

allegedly in the presence of men. Beebe appeals the district court’s denial of his

motion for summary judgment seeking qualified immunity. In light of the recent

en banc decision in Bull v. City & County of San Francisco, 595 F.3d 964 (9th Cir.

2010), we reverse.

      In Bull, we upheld a county’s blanket policy requiring strip searches of all

arrestees classified for housing in the general jail population. Id. at 982. Although

Wong was searched under a similar policy, she argues that her searches were

unconstitutional because she was an immigration detainee rather than a domestic

criminal arrestee and because she was searched not only upon her introduction to

the general jail population but also upon her transfer between secure jail facilities.

We need not decide whether the searches were unconstitutional, however, because

even assuming a constitutional violation, Beebe is entitled to summary judgment

because the right to be free from strip searches under those circumstances was not

“clearly established” in 1999. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); see


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also Bull, 595 F.3d at 978 n.14 (upholding a blanket strip search policy covering

not only dangerous detainees but also “persons with no criminal history arrested

for trivial offenses,” who “pose no credible risk of smuggling contraband into

jails” (internal quotation marks omitted)); Bell v. Wolfish, 441 U.S. 520, 524

(1979) (upholding a blanket strip search policy covering witnesses in protective

custody and persons incarcerated for civil contempt).

      Wong also alleges that she was searched in the presence of men, in violation

of the county’s written policy. If true, the searches may have been

unconstitutional. See Bull, 595 F.3d at 967. Wong has not produced any evidence,

however, suggesting that Beebe knew or should have known that she would be

searched in the presence of men. See Wong v. United States, 373 F.3d 952, 966-67

(9th Cir. 2004). Beebe is therefore entitled to qualified immunity. And Wong has

not named as a defendant anyone who performed or authorized such a search.

      The parties shall bear their own costs of appeal.

      REVERSED and REMANDED.




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