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Back to Archives | Back to April 2010 Contents 

Chief's Counsel

Ninth Circuit Approves Blanket County Jail Strip Search Policy

By Martin J. Mayer, General Counsel, California Police Chief’s Association

he case of Bull v. City and County of San Francisco involved a class-action challenge to a blanket policy of the sheriff that required strip-searching all arrestees being introduced into the general jail population. The district court held that the policy violates inmates’ Fourth Amendment rights and, furthermore, the court denied qualified immunity from civil liability to San Francisco Sheriff Michael Hennessey.1

The Ninth Circuit U.S. Court of Appeals initially upheld that ruling, but granted an en banc rehearing and reversed.2 The en banc Ninth Circuit found that the policy does not violate the inmates’ constitutional rights and there is a legitimate penological interest at stake justifying the policy.

This case has significant impact on those who operate county or city jails that house inmates, since it is a significant change compared to prior rulings. Although currently it affects only those within the jurisdiction of the Ninth Circuit, it will undoubtedly be cited as argument in other circuits as well. The fact that the Ninth Circuit, recognized as being extremely liberal, ruled in this fashion is also of significance.

Justification for Blanket Strip Search

The court’s en banc opinion acknowledges the long-standing principle that “ ‘[a] detention facility is a unique place fraught with serious security dangers.’ ”3 The court noted that there was evidence that the smuggling of drugs, weapons, and other contraband into jails was a “serious, ongoing problem,” and was a significant risk to both inmates and employees.4 There was also evidence that “significant amounts” of contraband were found hidden in the strip searches conducted at booking, and contraband was found on those arrestees who were being detained for nonviolent offenses.5

A strong dissenting opinion focuses on abuses that can occur in strip searches of individuals who have not been arrested for a crime involving drugs, weapons, or violence. The majority opinion, however, emphasizes that the legal issue challenged in the case was most frequently the blanket policy, not specific abuses that might exist in particular instances.

Additionally, the majority notes that the department’s search policy specifically requires that all searches be conducted in a professional manner and that its decision merely determines that searches conducted in compliance with those requirements are lawful, absent other circumstances which might suggest otherwise and which would constitute a violation of the department’s policy.6

In the en banc majority opinion, the court relied upon prior cases recognizing that inmates do not forfeit their constitutional rights entirely simply because they are incarcerated. However, the court also emphasized the need to defer to management of penal institutions, which is a function of the executive branch, which is better equipped to determine what protective measures are needed for the safety of correctional institutions.7

Governmental Interest versus Individual Right of Privacy

The court looked at whether the strip search policy was reasonable. In particular, it considered whether there was a “valid, rational governmental interest” to justify the policy.8 In applying prior case decisions, the court acknowledged that inmates do have a Fourth Amendment protection relating to “the invasion of bodily privacy in prisons.”9 The court concluded that the policy is reasonable because the search is limited to a visual inspection, and searches are required to be conducted in a professional manner and in an area that provides privacy to the inmate.

Furthermore, specific justification for the blanket policy exists in that there was evidence of “a pervasive and serious problem with contraband” inside the county’s jails and contraband was actually found during searches.10 There also was testimony of the need to enforce the prohibition of contraband in the jails and that such a policy supported the penological, including safety, interests of the jails and jail administration. There was further evidence that unnecessary jail resources would be expended by having more targeted policies and there would be a higher incidence of contraband without the blanket policy.11

Court Rejects Its Own Prior Decisions

The court specifically found that its prior opinions in Thompson v. City of Los Angeles and Giles v. Ackerman, holding that blanket strip search policies were “per se unconstitutional, even if the arrestees were to be transferred into the general population,” were not consistent with U.S. Supreme Court opinions upholding such blanket strip search policies.

The court rejected its conclusion in these prior cases that “strip searches must be based on individualized reasonable suspicion that an arrestee is carrying contraband.” The court noted that the U.S. Supreme Court, in Bell v. Wolfish, had “rejected the case-by-case approach to the reasonableness inquiry” as to the validity of strip searches.12

The court further rejected the theory stated in Giles that arrestees do not have an opportunity to secrete contraband. The court noted that detainees often have sufficient time to hide contraband, or may even get arrested deliberately to bring contraband into a correctional facility.13 Further, the evidence before the court showed that contraband was actually found during searches, supporting the fact that contraband, including weapons, could be hidden by arrestees prior to their arrest. Therefore, the policy had both a preventive and a deterrent purpose.


This opinion, at least in the Ninth Circuit, upholds blanket strip search policies for those inmates being housed in general jail populations. In order to continue to justify such a policy, however, agencies may want to keep detailed records about the frequency and type of contraband actually found during such searches, particularly if such items are found on arrestees who are detained for nonviolent crimes.

Agencies should always have written policies that ensure that such strip searches are conducted in the most humane, respectful, and professional manner possible. Further, such policies should be strictly followed in all cases.

As always, it is imperative that chiefs and sheriffs obtain advice and guidance from their agencies’ legal counsels on issues such as these. It is not unusual to have different opinions from different circuits and until the U.S. Supreme Court issues an opinion, this ruling is subject to challenge. ■


1Bull v. City and County of San Francisco, 2010 U.S. App. LEXIS 2684 at 2246 n.3 (The District Court had granted qualified immunity to Sheriff Hennessy as to the “safety cell” policy, which permitted blanket visual body cavity searches for placement of inmates in a “safety cell” at the jails.)
2The firm of Jones & Mayer, as counsel to the California State Sheriffs’ Association, submitted an amicus curiae brief in support of the sheriff.
3Bull v. City and County of San Francisco, 2010 U.S. App. at 2243 (quoting Bell v. Wolfish, 441 U.S. 520, 559 (1979)).
4Bull v. City and County of San Francisco at 2244.
5Id. at 2248.
6Id. at 2245.
7Id. at 2254.
8Id. at 2256 (internal quotations omitted).
9Id. at 2258.
10Id. at 2259.
11Id. at 2260-2261.
12Id. at 2264 (internal quotations omitted).
13Id. at 2267.

Please cite as:

Martin J. Mayer, "Ninth Circuit Approves Blanket County Jail Strip Search Policy," Chief's Counsel, The Police Chief 77 (April 2010): 12, (insert access date).



From The Police Chief, vol. LXXVII, no. 4, April 2010. Copyright held by the International Association of Chiefs of Police, 515 North Washington Street, Alexandria, VA 22314 USA.

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