The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge
Named Plaintiffs Paul Bame, Gregory Keltner, Ivan Welander, Nicolas Church, and John Joel Duncan were arrested for non-violent, non-felony offenses while protesting International Monetary Fund ("IMF") and World Bank policies in Washington, D.C. Plaintiffs claim that, under the direction and authority of Defendant Todd Walther Dillard, former United States Marshal for the Superior Court of the District of Columbia, they were strip searched by U.S. Deputy Marshals upon being processed into holding cells at the D.C. Superior Courthouse. Plaintiffs claim that these searches were without justification and thus unconstitutional under the Fourth Amendment, and seek damages. Defendant Marshal Dillard responds that the searches were justified by the reasonable suspicion of finding contraband and/or weapons and that, in any event, he is entitled to qualified immunity. Plaintiffs have moved for summary judgment as to liability, while Defendant Marshal Dillard has moved for summary judgment on the issue of qualified immunity. For the reasons explained herein, both motions for summary judgment will be denied.
A. Lead-up to the International Monetary Fund/World Bank Protests
The IMF and World Bank planned to hold their annual Fall meetings on September 27 through September 30, 2002 in Washington, D.C. In what one website described as an effort to "Shut Down the City," a group of protesters, ultimately numbered in the low thousands, planned to mass in Washington, D.C. in order to protest IMF and World Bank policies for what they believed was maltreatment of poor persons around the globe. Deposition of Paul Bame ("Bame Dep.") at 6-8. Plaintiffs traveled from around the country to join in this protest. Id. Prior to the protest, Plaintiffs discussed among themselves the idea of not carrying any form of identification on their persons and refusing to provide identification or give their true names to law enforcement. Id. at 60-64. Nonetheless, Mr. Bame has testified that no protester intended to be arrested during the protest. Id. at 63.
Such protests are not uncommon and are, in fact, almost routine in the nation's capital. Deposition of Marshal Todd Dillard ("Dillard Dep.") at 67; Deposition of Deputy Marshal James Rowe ("Rowe Dep.") at 27. Local law enforcement, which in this instance includes Metropolitan Police Department ("MPD") and federal officials, had developed plans of their own to deal with the concerns of traffic congestion, mass arrests, and safety. In advance of the IMF/World Bank protests planned for September 27 -- October 4, 2002, the United States Marshals Service ("USMS") prepared an operations plan entitled "Operation Safe Courts" (the "Operation"). Def.'s Statement of Material Facts Not in Dispute ("Def.'s SMF") at 4; Dillard Dep., Ex. 1 (Operation Safe Courts). The Operation noted an increase in the level of violence directed at law enforcement in connection with similar protests and estimated that 5,000 to 15,000 protesters could descend upon city streets. Def.'s SMF at 5. The Operation also specified how the USMS would aid local police by detaining arrestees pre-arraignment in the Superior Court and warned that many arrestees would refuse to provide identification as a method of non-compliance with law enforcement orders. Id. Most relevant to the case at hand, the Operation provided that Marshals would search arrestees prior to detaining them for presentment to the court. Id.
The Operation did not provide specific guidance on how the searches were to be conducted, but the USMS's own search policy had evolved over the prior few decades. Searches were to take place as soon as incoming arrestees arrived at the Superior Court cellblock, with the overriding institutional security goal of preventing arrestees from hiding contraband and/or weapons. Rowe Dep. at 17-21. Such searches involved a pat-down of the arrestee's entire body (while the arrestee was clothed), use of a magnetometer (the familiar metal detectors at airports), use of wands to detect metal objects, and, at issue here, the use of "strip searches." Id.
Because the definition of a strip search may vary, it is necessary to provide the details of the exact procedure ("District Policy") used by the USMS at the D.C. Superior Court cell block. Colloquially referred to as the "Drop, Squat and Cough," male arrestees were required to pull their pants and underwear down to their ankles, squat down or bend over with their buttocks to the searching Marshals, and then cough to confirm that they were not hiding any contraband and/or weapons in their rectums. Dillard Dep. at 22; Pls.' Statement of Material Facts Not in Dispute ("Pls.' SMF") at 4. It is undisputed that under the District Policy, the USMS has discovered contraband, including drugs and drug paraphernalia, in connection with the Drop, Squat and Cough searches of arrestees at the Superior Court, though the record is silent as to the nature and seriousness of the charges of those arrestees. Def.'s SMF at 7-9.
In July 1999, more than three years before the searches at issue here, USMS Acting Director George R. Havens issued Policy Directive 99-25 ("Policy 99-25"), which provided a specific set of instructions for the Marshals in order to conduct "both reasonable and legal searches" of arrestees. Def.'s Opp'n to Pls.' Mot. for Class Certification, Ex. B (Policy 99-25) at 1. Policy 99-25 generally refers to strip searches as "a complete search of a prisoner's attire and a visual inspection of the prisoner's naked body, including body cavities." Id. at 3. According to Policy 99-25, strip searches were only authorized 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 may be based upon, but is not limited to, one or more of the following criteria:
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 pre-trial detainee;
d. Prisoner's criminal history;
e. Type and security level of institution in which prisoner is detained; or
f. History of discovery of contraband and/or weapons, either on the prisoner individually or in the institution in which the prisoners are detained.
Id. at 4. Policy 99-25 also stated that Marshals may perform their own strip search "as necessary based on the [above] factors" prior to accepting a prisoner from another facility. Id. at 5. Finally, the search was to take place: only by a Marshal of the same sex as the prisoner, only via visual examination (i.e., no touching of skin surface), and only in a "professional manner, causing the prisoner as little embarrassment as possible." Id.*fn2
In addition to Policy 99-25, the District of Columbia and its agents were subject to a consent decree resulting from litigation in the early 1980's over treatment of female arrestees. Pls.' Mot. for Summ. J., Ex. 12 ("Morgan Consent Decree"). Providing the same standard as Policy 99-25, the Morgan Consent Decree required "reasonable suspicion" before the use of a strip search on a female arrestee. Id. at 2. With certain exceptions (i.e., for movement around the same facility or for attorney or clergy ...