Monday, April 24, 2006

Way v. County of Ventura (9th Cir. - April 20, 2006)

Noelle Way worked at the Red Cove Bar in Ventura. One night, while she's working there, she had the distinct misfortune of coming across Robert Ortiez, who was a police officer in Ventura. Robert notices that Noelle is looking a bit tweaky, and (rightly) suspects that she's been using coke and/or meth. So he arrests her, does a blood test, and confirms that, yep, she's under the influence. Her charge is a misdemeanor, and it's so serious that she's ROR'ed, and ends up spending a total of around four hours in the local jail before she's released. No biggie, right?

Well, maybe. Except for one thing. Ventura County has decided that everyone -- everyone -- who's arrested on any drug charge gets cavity searched. So before spending her glorious four hours in the local jail, Noelle has to take off all her clothes, bend over and spread her buttocks (as someone inspects her anus), remove her tampon (and rip it up), and spread her labia as someone inspects her vagina. Not degrading at all, right?

Why does she have to do all of this? Not because the police have any reason to suspect that Noelle is hiding anything in her nether regions. They don't. Just because of a blanket policy that says, in essence: "Anyone who has anything whatsoever with drugs might possibly have something in their _____, so let's probe it."

The Ninth Circuit, in this opinion, concludes that this blanket policy isn't cool, and that it's an unreasonable search and seizure. But Judge Rymer's opinion (1) hold that it was far from clear that this was the case, so Noelle loses her lawsuit (as well as her dignity) on qualified immunity grounds, and (2) contains so many caveats that it also won't be clear in the future (and hence future defendants will get qualified immunity as well) whether such a blanket policy would be cool for drugs other than methamphetamine and cocaine, for situations in which the defendant will mingle with the larger jail population, etc. etc. etc. Basically, she says that this policy is no good here, but the holding is deliberately limited to the particular facts of this case. By contrast, Judge Wardlaw concurs and says (1) that Judge Rymer is parsimoniously reading and "interpreting" prior precedent, and (2) that qualified immunity shouldn't apply here because the violation was clear.

Well-crafted opinions by both sides. And a neat trick by Judge Rymer to find in "favor" of the plaintiff and yet both deprive her of any real personal or prospective relief. Sort of like Marbury only designed to diminish personal liberties instead of to entrench judicial review. Both opinions are definitely worth a read.