                                                               [PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                     FOR THE ELEVENTH CIRCUIT          U.S. COURT OF APPEALS
                       _______________________           ELEVENTH CIRCUIT
                                                             MAY 23, 2001
                                                          THOMAS K. KAHN
                             No. 00-12827                      CLERK
                       _______________________

                  D. C. Docket No. 99-00110-CV-TMP-S

DEANGELA WILSON,

                                               Plaintiff-Appellee,

                                  versus

JAMES JONES, Sheriff of Shelby
County,


                                               Defendant-Appellant.


                      _________________________

                Appeal from the United States District Court
                   for the Northern District of Alabama
                      _________________________
                             (May 23, 2001)


Before BARKETT, HILL and KRAVITCH, Circuit Judges.
KRAVITCH, Circuit Judge:

       In this appeal, we consider the constitutionality of a strip search performed

on Plaintiff DeAngela Wilson, who was detained at the Shelby County Jail after

being arrested for driving under the influence of alcohol. We agree with the

district court’s finding that the search, conducted without reasonable suspicion,

violated Wilson’s rights under the Fourth Amendment. Nevertheless, because we

hold that Defendant Sheriff James Jones is entitled to qualified immunity, we

reverse the district court’s finding of liability under 42 U.S.C. § 1983.

                                 I. BACKGROUND

       On May 1, 1998, deputy sheriffs of Shelby County, Alabama arrested

Wilson at a license checkpoint for driving under the influence of alcohol. After her

arrest, Wilson was taken to the Shelby County Jail, where, due to the level of

alcohol in her blood, she was required to remain until the following morning.

Because the Shelby County Jail does not have separate facilities to hold temporary

female detainees, Wilson was placed in a cell within the general female population

of the jail.

       Before taking Wilson to her cell, a female corrections officer performed a

strip search on Wilson pursuant to Policy Number B-103 of the Shelby County

Jail, which requires each arrestee to undergo a “complete search” prior to

                                           2
admission into the general population of the jail. The officer escorted Wilson to

an unoccupied restroom in the jail and, after allowing her to use the restroom,

instructed her to disrobe completely, face the wall, squat, spread her buttocks, and

cough three times. The officer also checked Wilson’s ears, mouth, nose and

breasts during the search. She did not, however, do a visual or manual inspection

of Wilson’s body cavities below the waist.1

       Subsequently, Wilson brought suit under 42 U.S.C. § 1983 against Sheriff

Jones, asserting that he violated her Fourth Amendment rights by creating and

implementing the policy under which she was searched.2 The district court denied

Sheriff Jones’s motion to dismiss and his motion for summary judgment, finding

(1) that the policy requiring a strip search of all arrestees admitted to the Shelby

County Jail was unconstitutional; and (2) that Sheriff Jones was not entitled to

qualified immunity. Sheriff Jones appeals the district court’s denial of his motion

for summary judgment.

                                      II. DISCUSSION

       We review de novo the district court’s order denying Sheriff Jones’s motion

       1
        The search was conducted in accordance with the policy promulgated by Sheriff Jones
and no violations or departures from that policy are alleged.
       2
        Wilson also sued Shelby County and an unknown Deputy Sheriff. The district court,
however, dismissed Wilson’s claims against those parties, as well as her claims against Sheriff
Jones in his official capacity. The dismissal of those claims is not at issue in this appeal.

                                                3
for summary judgment. See Sheth v. Webster, 145 F.3d 1231, 1235 (11th Cir.

1998). In reviewing the district court’s denial of summary judgment, we “‘must

first determine whether the plaintiff has alleged the deprivation of an actual

constitutional right at all, and if so, proceed to determine whether that right was

clearly established at the time of the alleged violation.’” McElligott v. Foley, 182

F.3d 1248, 1254 (11th Cir. 1999) (quoting Conn v. Gabbert, 526 U.S. 286, 290

(1999)).

A. Constitutional Violation

      We begin our discussion with the Supreme Court case of Bell v. Wolfish,

441 U.S. 520 (1978), which held that strip and visual body cavity searches may, in

certain instances, be conducted on inmates with less than probable cause. In Bell,

the Court articulated the balancing test by which courts are to evaluate the

reasonableness of a particular search:

      The test of reasonableness under the Fourth Amendment is not
      capable of precise definition or mechanical application. In each case
      it requires a balancing of the need for the particular search against the
      invasion of personal rights that the search entails. Courts must
      consider 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. Balancing “the significant and legitimate security interests of the

institution against the privacy interests of the inmates,” the Bell Court upheld a


                                           4
prison policy requiring inmates to submit to routine strip searches with visual body

cavity inspections after each contact visit with a person from outside the

institution. Id. at 560. Despite holding that particular policy constitutional,

however, “Bell v. Wolfish [did] not validate a blanket policy of strip searching pre-

trial detainees.” Masters v. Crouch, 872 F.2d 1248, 1253 (6th Cir. 1989).

      Rather, “[t]he Bell balancing test for reasonableness requires at a minimum,

that the facts upon which an intrusion is based be capable of measurement against

an objective standard . . . .” Justice v. City of Peachtree City, 961 F.2d 188, 192

(11th Cir. 1992) (citation and internal quotation marks omitted). Courts

considering the issue “have applied ‘objective standards’ ranging from ‘reasonable

suspicion’ to ‘probable cause.’” Id. (citations omitted). This court recognizes that

“reasonable suspicion” is sufficient to justify the strip search of a pretrial detainee.

See Skurstenis v. Jones, 236 F.3d 678, 682 (11th Cir. 2000); see also Justice, 961

F.2d at 193 (holding that law enforcement officers “may conduct a strip search of a

juvenile in custody, even for a minor offense, based upon reasonable suspicion to

believe that the juvenile is concealing weapons or contraband”).

      In Skurstenis v. Jones, a case decided subsequent to the search of Wilson,

we already addressed the reasonableness of the policy at the Shelby County Jail.

See Skurstenis, 236 F.3d at 680-82. Relying on the balancing test articulated in


                                           5
Bell, we determined that Policy Number B-103 violated the Fourth Amendment

because it did not require reasonable suspicion as a predicate to strip searching

newly admitted detainees.3 Id. at 682 (“This policy, which does not require any

reasonable suspicion, does not comport with the requirements of the Fourth

Amendment.”).4 Nevertheless, we concluded that Plaintiff Skurstenis’s Fourth

Amendment rights were not violated by a search pursuant to that policy because

officers had reasonable suspicion that she was concealing a weapon.5 Id.

       Here, unlike Skurstenis, there is no evidence that the officers at Shelby

County Jail had reasonable suspicion that Wilson was concealing weapons or any

other type of contraband. Indeed, as the district court noted, an officer permitted

Wilson to use the bathroom prior to the search, which indicates a lack of fear that

Wilson might flush any such substance down the toilet. Moreover, Sheriff Jones

       3
        Like Wilson, the detainee searched in Skurstenis had been arrested for driving under the
influence of alcohol and only remained in the jail overnight. See Skurstenis, 236 F.3d at 680.
       4
         As noted by the district court in Skurstenis, there are important factual differences
between Bell and Skurstenis which account, in part, for the courts’ differing conclusions
regarding the challenged policies. See Skurstenis v. Jones, F. Supp. 2d 1228, 1232 (N.D. Ala.
1999), vacated by 236 F.3d 678 (11th Cir. 2000). The main difference is that, unlike the inmate
in Bell, “Skurstenis had no contact with anyone ‘outside the institution’ after she was arrested,
something essential to the decision in Bell . . . . She was not out of law enforcement supervision
from the first moment she was approached by the arresting officer, until her eventual release.
She did not meet with any ‘visitor,’ nor did she have any opportunity to acquire or to hide a
weapon or other contraband.” Id. Thus, in Skurstenis, as in the present case, there did not exist
the same threat to security that justified the routine search in Bell.
       5
        The court concluded there was reasonable suspicion based on Skurstenis’s possession of
a .38 Special handgun at the time of her arrest.

                                                6
testified that “I don’t believe we had a reason to suspect that [Wilson] had any

contraband.”

      Because Wilson was strip searched absent reasonable suspicion, we hold that

the search of Wilson, as well as the jail’s policy authorizing her search, violated the

Fourth Amendment prohibition against unreasonable searches and seizures. Other

circuits addressing this issue have held similar policies unconstitutional. See, e.g.,

Roberts v. Rhode Island, 239 F.3d 107 (1st Cir. 2001); Chapman v. Nichols, 989

F.2d 393 (10th Cir. 1993); Fuller v. M.G. Jewelry, 950 F.2d 1437 (9th Cir. 1991);

Masters v. Crouch, 872 F.2d 1248 (6th Cir. 1989); Watt v. City of Richardson

Police Dept., 849 F.2d 195 (5th Cir. 1988); Weber v. Dell, 804 F.2d 796 (2d Cir.

1986); Jones v. Edwards, 770 F.2d 739 (8th Cir. 1985); Mary Beth G. v. City of

Chicago, 723 F.2d 1263 (7th Cir. 1983).

B. Qualified Immunity

      Having established the existence of a constitutional violation, we turn to the

issue whether or not Sheriff Jones is entitled to qualified immunity. “Qualified

immunity shields a § 1983 defendant from liability for harms arising from

discretionary acts, as long as the discretionary acts do not violate clearly

established federal statutory or constitutional rights of which a reasonable person




                                           7
would have known.” Jackson v. Sauls, 206 F.3d 1156, 1164 (11th Cir. 2000).6 In

analyzing a qualified immunity defense, we are to consider only the “clearly

established law and the information possessed by the official at the time the

conduct occurred.” Hope v. Pelzer, 240 F.3d 975, 981 (11th Cir. 2001) (citation

and internal quotation marks omitted). “For qualified immunity to be surrendered,

pre-existing law must dictate, that is, truly compel (not just suggest or allow or

raise a question about), the conclusion for every like-situated, reasonable

government agent that what defendant is doing violates federal law in the

circumstances.” Lassiter v. Ala. A & M Univ. Bd. of Trs., 28 F.3d 1146, 1150

(11th Cir. 1994). Upon review of the record, we cannot conclude that the

preexisting case law “compels the conclusion” for every reasonable government

official in Sheriff Jones’s position that the policy at Shelby County Jail violates the

Fourth Amendment.

       At the time of Wilson’s search, the only controlling cases in this jurisdiction

involving strip searches of pretrial detainees were Bell v. Wolfish, 441 U.S. 520

(1979) and Justice v. City of Peachtree City, 961 F.2d 188 (11th Cir. 1992). As

discussed below, neither of those cases clearly established a constitutional

violation on facts “materially similar” to those in the present case. See Lassiter, 28


      6
       It is undisputed that Sheriff Jones acted within the scope of his discretionary authority.

                                                8
F.3d at 1150 (“When considering whether the law applicable to certain facts is

clearly established, . . . [t]he facts need not be the same as the facts of the

immediate case. But they do need to be materially similar.”) (emphasis added)

(citation omitted).

      In Bell, as discussed supra, the Supreme Court upheld a federal prison’s

policy that required pretrial inmates “to expose their body cavities for visual

inspection as a part of a strip search conducted after every contact visit with a

person from outside the institution.” Bell, 441 U.S. at 558. In justifying the policy

based on security concerns, the Court emphasized that “[a] detention facility is a

unique place fraught with serious security dangers. Smuggling of money, drugs,

weapons, and other contraband is all too common an occurrence.” Id. at 559.

Given the language in Bell, it was not unreasonable for someone in Sheriff Jones’s

position to believe that blanket strip searches of newly admitted detainees were

justified based on the serious risk that smuggled weapons and other contraband

posed to the jail’s security. The fact that the Bell Court upheld a search that was

more intrusive than the one at issue here further weighs against a conclusion that

Bell should have put Sheriff Jones on notice that his policy was unconstitutional.7

See Hill v. Dekalb Reg’l Youth Det. Ctr., 40 F.3d 1176, 1185 (11th Cir. 1994)


      7
       In contrast to the search in Bell, Wilson’s lower body cavities were not inspected.

                                               9
(“To be ‘clearly established,’ the federal law by which the government official’s

conduct should be evaluated must be preexisting, obvious and mandatory so that a

similarly situated, reasonable government agent would be on notice that his or her

questioned conduct violates federal law under the circumstances.”) (emphasis

added) (citation omitted).

        Justice involved a strip search of a fourteen year old plaintiff who was

arrested for minor offenses. See Justice, 961 F.2d at 189-90. After the plaintiff

was arrested, she was taken to a room in the police station and ordered to strip

down to her panties even though her mother already had arrived to take her home.

Id. at 190. Once the officers completed the search, they released the plaintiff into

her mother’s custody. Id. In concluding that the strip search was constitutional,

we held that “law enforcement officers may conduct a strip search of a juvenile in

custody, even for a minor offense, based upon reasonable suspicion to believe that

the juvenile is concealing weapons or contraband.” Id. at 193.8

       Wilson contends that our decision in Justice gave Sheriff Jones fair warning

that strip searching Wilson without reasonable suspicion violated the Fourth

Amendment. See McElligott v. Foley, 182 F.3d 1248, 1260 (11th Cir. 1999)


       8
        In Justice, we concluded that the “facts of this case gave the officers a ‘reasonable
suspicion,’ and thus the search did not violate the Fourth Amendment.” Justice, 961 F.2d at 194.


                                              10
(“Qualified immunity is a guarantee of fair warning.”). Because we perceive a

material difference between Justice and the case at hand, we disagree with

Wilson’s contention. In Justice, unlike the present case, the detainee was not going

to be placed in a cell nor put in contact with the general inmate population. Rather,

she was to be released to her parents after the search was completed. See Justice,

961 F.2d at 190. In contrast, Wilson was placed in a cell located within the female

cell block, in the general population of the jail, where she was to remain until the

following morning. Although Wilson was placed in a cell by herself, to reach her

cell, she had to be escorted through an area housing several other female inmates.

Furthermore, Wilson testified that during the night, inmates came up and talked to

her through a window on her door which was used to pass through food trays. The

detainee in Justice thus posed a lesser risk to the security of the jail than did

Wilson, yet the search in Justice was upheld as constitutional. Accordingly, our

decision in Justice does not clearly establish a constitutional violation on facts

“materially similar” to those in the present case. See Lassiter, 28 F.3d at 1150.

      Moreover, following Bell and Justice, but prior to the strip search of Wilson,

a district court in the Northern District of Alabama specifically found that a strip

search conducted pursuant to Sheriff Jones’s policy at the Shelby County Jail did

not violate the Fourth Amendment. See Mumpower v. Jones, No. 98-1097, slip op.


                                           11
at 11 (N.D. Ala. Apr. 14, 1999). Likewise, a district court from the Middle District

of Alabama held that a similar policy was justified based on security concerns. See

Magill v. Lee County, 990 F. Supp. 1382, 1392 (M.D. Ala. 1998), aff’d 161 F.3d

22 (11th Cir. 1998).9 Analyzing the precedent set forth in Bell and Justice, the

court in Magill explained:

       If the Supreme Court can approve a strip search and body cavity
       search procedure on detainees who have had a contact visit with the
       public, . . . , surely this court must approve the present search.
       Likewise, if the Eleventh Circuit can approve strip-searches of
       juveniles who are not even going to be placed into a cell, this court
       should approve the present search.

Id. at 1392.

       Inasmuch as two district judges had concluded that Sheriff Jones’s

policy and a similar policy were constitutional, it seems unreasonable to

hold the sheriff liable for concluding the same. As this court previously has

held, “[u]nless a government agent’s act is so obviously wrong, in the light

of pre-existing law, that only a plainly incompetent officer or one who was

knowingly violating the law would have done such a thing, the government

actor has immunity from suit.” Lassiter, 28 F.3d at 1149. In view of the case

       9
         Unlike Wilson, the detainees in Magill were not required to remove their underwear as
part of the search. Nevertheless, the court in Magill clarified that it was not “basing its opinion
on the Sheriff’s decision to allow the inmates to keep on their underwear. The constitutional
balancing of the inmate’s rights and jail’s concerns does not necessarily turn on the issue of
whether the inmates are allowed to wear a bra and panties.” Magill, 990 F. Supp. at 1390.

                                                 12
law discussed above, we cannot say that “only a plainly incompetent officer

or one who was knowingly violating the law,” would have promulgated the

policy at issue here.10 See id.

       Therefore, although we hold that the strip search of Wilson was

unconstitutional, we conclude that Sheriff Jones is entitled to qualified

immunity from liability under 42 U.S.C. § 1983. Accordingly, the district

court’s entry of summary judgment in favor of Wilson is

REVERSED.




       10
          Wilson urges us to consider case law from other circuits in determining whether Sheriff
Jones should have been on notice that his policy was unconstitutional. We decline to do so in
light of the two district court opinions discussed above, which affirmatively upheld the policy at
the Shelby County Jail and a policy similar to it. See Mumpower, No. 98-1097, slip op. at 11;
Magill, 990 F. Supp. at 1392.

                                                13
