There was no clear rule in 2002 that prohibited officers in D.C. Superior Court from strip searching all detainees brought to the courthouse, including protesters, a prosecutor argued today in the U.S. Court of Appeals for the D.C. Circuit.
Government lawyers are challenging a ruling in Washington federal district court last year that said former U.S. Marshal Todd Dillard of D.C. Superior Court is not entitled to qualified immunity in a 2005 suit filed by a group of protesters alleging invasion of privacy. A Marshals Service policy that allowed the search of all detainees has since been abandoned.
Judge Rosemary Collyer of the U.S. District Court for the District of Columbia declared the practice unreasonable. U.S. Marshals Service employees, the judge said in her August 2009 ruling, did not justify the search. The U.S. Attorney’s Office for the District of Columbia appealed the decision, which was the centerpiece of today’s argument before Judges Judith Rogers and Douglas Ginsburg and Senior Judge Stephen Williams.
The protesters, including lead plaintiff Paul Bame, were arrested in September 2002 at a rally during the annual fall meeting of the International Monetary Fund and the World Bank. When he was detained, Bame had a white question mark painted on his face. None of the demonstrators identified themselves to the authorities. Click here for an earlier report on the case.
After the arrests, Bame and the other demonstrators passed through a metal detector and officers patted down the protesters’ clothing to look for weapons. In Superior Court cells with eight to 12 men, the protesters were ordered to drop their pants, bend over and cough. The search did not turn up any contraband.
Today in court, assistant U.S. attorney W. Mark Nebeker defended what he called the “drop and squat” procedure. He said, among other things, the Marshals Service didn’t know who they had in custody. “You could have had Osama bin Laden,” Nebeker said. “You don’t know.”
The authorities, Nebeker said, were focused on maintaining the security of the courthouse—protecting judges and protecting other detainees. During one exchange with Rogers, Nebeker said officers could have had a killer in the mix of the detained protesters. “Could have been a murderer?” Rogers asked with skepticism. “Do you really want to make that argument?”
Rogers said protesters in Washington historically have not been treated as if they were general population detainees. The judge said the government appeared to be to “blurring distinctions” among detainees.
Plaintiffs’ attorney Lynn Cunningham, a retired George Washington University Law School professor, said there is unanimous, long established law that prohibits strip searches of non-violent, non-felony offenders. “There was a huge amount of guidance,” Cunningham, a solo practitioner in Wyoming, said in court. He urged the court to affirm Collyer’s decision.