Oscar Jimenez, et al v. Texas Alcoholic Beverage Cmsn, et al

Filing

PUBLISHED OPINION FILED. [09-40892 Affirmed ] Judge: JES, joined by EHJ & EBC, DISSENTS , Judge: EMG, joined by EHJ, JES, EBC & PRO, DISSENTS, Judge: EBC joined by EHJ & EMG, DISSENTS, Judge: JWE Mandate pull date is 11/03/2011 [09-40892]

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IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
Fifth Circuit

FILED
October 13, 2011

No. 09-40892

Lyle W. Cayce
Clerk

OSCAR GABRIEL JIMENEZ; CHANDRA RAE JIMENEZ,
Plaintiffs-Appellees,
v.
WOOD COUNTY, TEXAS; SHERIFF DWAINE DAUGHERTY,
Defendants-Appellants.

Appeal from the United States District Court
for the Eastern District of Texas, Marshall Division

Before JONES, Chief Judge, and KING, JOLLY, DAVIS, SMITH, GARZA,
BENAVIDES, STEWART, DENNIS, CLEMENT, PRADO, OWEN, ELROD,
SOUTHWICK, and HAYNES, Circuit Judges.*
JENNIFER WALKER ELROD, Circuit Judge, joined by KING, E. GRADY
JOLLY, W. EUGENE DAVIS, BENAVIDES, CARL E. STEWART, DENNIS,
PRADO, LESLIE H. SOUTHWICK, and HAYNES, Circuit Judges:
Wood County, Texas and Sheriff Dwaine Daugherty (collectively “the
County”) appeal from the judgment against them on Oscar and Chandra
Jimenez’s action under 42 U.S.C. § 1983. For the reasons set forth below, we
AFFIRM.

*

Judge Graves did not participate in this decision.

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I.
Oscar and Chandra Jimenez operated a bar in Wood County. In 2005, the
bar hosted a New Year’s Eve party, which was attended by undercover agents
of the Texas Alcoholic Beverage Commission (TABC). Later that evening,
TABC agents raided the bar, assisted by officers of the Wood County Sheriff’s
Department. Mr. Jimenez fled, and the agents could not locate him. At some
point, they began to suspect that he was hiding in the trunk of his wife’s car,
which was parked behind the bar. After repeated requests by the agents, Ms.
Jimenez opened the trunk and the agents’ suspicions were confirmed. Mr.
Jimenez was arrested for evading arrest and Ms. Jimenez was arrested for
hindering apprehension, a Class A misdemeanor under these circumstances.
At the Wood County jail, Ms. Jimenez was strip-searched, in accordance with
the policy of the Wood County Sheriff’s Department. At the time, department
policy required strip searches of all persons entering the jail who were arrested
for a felony, Class A misdemeanor, or Class B misdemeanor.
Mr. and Ms. Jimenez sued the TABC, Wood County, and Sheriff
Daugherty under 42 U.S.C. § 1983, alleging constitutional violations stemming
from their arrests. Relevant to this appeal, Ms. Jimenez claimed that, because
she was arrested for a minor offense, she could be strip-searched only upon
reasonable suspicion that she was concealing weapons or contraband. This
claim proceeded to trial.

The final jury charge instructed the jury that

reasonable suspicion was required for a strip search of a person arrested for a
minor offense. Because the court concluded that Ms. Jimenez’s offense was a
minor offense as a matter of law, the charge directed that if the jury found
reasonable suspicion lacking, it must find that the County violated her Fourth
Amendment rights. At the charge conference, the County presented only one
formal objection to the jury instructions: “Just one objection, Your Honor, the —

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the Court finding that this was a minor offense as a matter of law. For record
purposes, we would object.” The County did not object to the “reasonable
suspicion” requirement.
The jury ultimately returned a verdict for Ms. Jimenez. In accordance
with the jury’s verdict, the court entered a final judgment against the County,
awarding Ms. Jimenez $55,000 for past and future mental anguish, and $5,000
in punitive damages. In addition, the court awarded $157,394.60 in attorneys’
fees, and $37,153.95 in costs. The County appealed, and a panel of this court
affirmed. Jimenez v. Wood Cnty., Tex., 621 F.3d 372 (5th Cir. 2010). We
granted rehearing en banc and vacated the panel opinion. Jimenez v. Wood
Cnty., Tex., 626 F.3d 870 (5th Cir. 2010).
II.
The County raises two challenges to the jury instructions given at trial.1
First, the County argues that the jury should not have been instructed that
reasonable suspicion was required for the strip search of Ms. Jimenez.
According to the County, the decades-old, well-settled precedent of this court
requiring reasonable suspicion for strip searches of minor-offense arrestees
misinterpreted the Supreme Court’s earlier decision in Bell v. Wolfish, 441 U.S.
520 (1979). See, e.g., Kelly v. Foti, 77 F.3d 819, 821 (5th Cir. 1996) (“Jail officials
may strip search a person arrested for a minor offense and detained pending the
posting of bond only if they possess a reasonable suspicion that he is hiding
weapons or contraband.”); Stewart v. Lubbock Cnty., Tex., 767 F.2d 153, 156-57
(5th Cir. 1985) (“Because Lubbock County’s strip search policy was applied to
1

Before the panel, the County raised several additional arguments. The County argued
that Sheriff Daugherty was entitled to qualified immunity because the law was not clearly
established, that the officers had reasonable suspicion that Ms. Jimenez was concealing
weapons or contraband, and that the district court erred in determining an appropriate award
of attorneys’ fees. The panel rejected these arguments, and the County has not raised these
issues on rehearing. Accordingly, we reinstate those portions of the panel opinion that decide
these issues—namely, Parts III, IV, and V. See Jimenez, 621 F.3d at 378-80.

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minor offenders awaiting bond when no reasonable suspicion existed that they
as a category of offenders or individually might possess weapons or contraband,
under the balancing test of Wolfish we find such searches unreasonable and the
policy to be in violation of the Fourth Amendment.”). In the wake of Wolfish,
every other circuit to consider the issue came to the same conclusion as this
court.2 Recently, however, two circuits have overruled their prior precedent,3
and two others have weighed in for the first time,4 holding that such strip
searches do not require reasonable suspicion. The County urges us to follow the
lead of these courts and overrule our precedent requiring reasonable suspicion
for the strip search of a person arrested for a minor offense. In the alternative,
the County argues that the jury should not have been instructed that Ms.
Jimenez’s offense was a minor offense as a matter of law. We consider each
argument in turn.
A.
Our standard of review for challenges to jury instructions is governed by
Rule 51 of the Rules of Civil Procedure. Rule 51 requires a party to object to
jury instructions in order to preserve a claim of error for appeal. An objection

2

See Swain v. Spinney, 117 F.3d 1, 7 (1st Cir. 1997); Weber v. Dell, 804 F.2d 796, 804
(2d Cir. 1986); Logan v. Shealy, 660 F.2d 1007, 1013 (4th Cir. 1981); Masters v. Crouch, 872
F.2d 1248, 1255 (6th Cir. 1989); Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1273 (7th Cir.
1983); Jones v. Edwards, 770 F.2d 739, 741-42 (8th Cir. 1985); Giles v. Ackerman, 746 F.2d
614, 617 (9th Cir. 1984) (per curiam); Hill v. Bogans, 735 F.2d 391, 394-95 (10th Cir. 1984);
Wilson v. Jones, 251 F.3d 1340, 1343 (11th Cir. 2001).
3

See Bull v. City & Cnty. of San Francisco, 595 F.3d 964, 977 (9th Cir. 2010) (en banc)
(overruling Thompson v. City of Los Angeles, 885 F.2d 1439, 1446-47 (9th Cir. 1989); Giles, 746
F.2d at 617); Powell v. Barrett, 541 F.3d 1298, 1314 (11th Cir. 2008) (en banc) (overruling
Wilson, 251 F.3d at 1343).
4

See Florence v. Bd. of Chosen Freeholders of the Cnty. of Burlington, 621 F.3d 296, 308
(3d. Cir 2010); Bame v. Dillard, 637 F.3d 380, 386 (D.C. Cir. 2011). The Supreme Court has
granted certiorari in Florence on the following question: “Whether the Fourth Amendment
permits a jail to conduct a suspicionless strip search of every individual arrested for any minor
offense no matter what the circumstances.” Florence, No. 10-945, 131 S. Ct. 1816 (2011).

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must be made “on the record” and must state “distinctly the matter objected to
and the grounds for the objection.” Fed. R. Civ. P. 51(c)(1). The objection must
have been made on the specific “ground raised on appeal, rather than a general
objection to the instructions as a whole or an objection on a different ground.”
Fiber Sys. Int’l, Inc. v. Roehrs, 470 F.3d 1150, 1158 (5th Cir. 2006). Thus, a
specific, formal, on-the-record objection is required. See United States v. Redd,
355 F.3d 866, 874-75 (5th Cir. 2003).
Rule 51 also dictates the timing of such an objection. After informing the
parties of its intended instructions, the court “must give the parties an
opportunity to object on the record and out of the jury’s hearing before the
instructions and arguments are delivered.”

Fed. R. Civ. P. 51(b)(2).

All

objections must be made at that time. Fed. R. Civ. P. 51(c)(2)(A).
Where a specific and timely objection is made, we review that objection
“under an abuse of discretion standard, affording the trial court substantial
latitude in describing the law to the jurors.” United States v. Santos, 589 F.3d
759, 764 (5th Cir. 2009) (internal quotation marks omitted). Where a proper
objection is not made, however, our review of a jury instruction challenge is
limited to review for plain error. See Fed. R. Civ. P. 51(d)(2) (“A court may
consider a plain error in the instructions that has not been preserved as required
by Rule 51(d)(1) if the error affects substantial rights.”). We have discretion to
correct such an unpreserved error only if it is plain, affects substantial rights,
and “seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir.
2009) (internal quotation marks omitted); see also Fed. R. Civ. P. 51(d)(2). If the
unpreserved error does not meet this demanding standard, we have no authority
to correct it. United States v. Olano, 507 U.S. 725, 740 (1993); see also Puckett
v. United States, 129 S. Ct. 1423, 1429 (2009).

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B.
The County argues that the district court erred in instructing the jury that
reasonable suspicion was required for the strip search of Ms. Jimenez. Yet the
County did not lodge an objection on this ground in the district court. When the
court provided an opportunity for the parties to object to the jury instructions,
the County objected only to the court’s “finding that [hindering apprehension]
was a minor offense as a matter of law.” Hence, the error has been forfeited.
The County offers two arguments as to why its failure to comply with Rule
51 should be excused. Both are unavailing. First, the County asserts that it
sufficiently alerted the district court to its objection by mentioning the Eleventh
Circuit’s decision in Powell v. Barrett5 during a pre-trial conference before the
magistrate judge. This discussion, even if it had amounted to a formal objection
to the jury instruction, could not preserve an error for our review because it does
not satisfy the timing requirement set forth in Rule 51.6 Objections to the jury
instructions must be made “at the opportunity provided [by the court] under

5

541 F.3d 1298 (11th Cir. 2008) (en banc). At that time, Powell was the only appellate
decision supporting the County’s position in this appeal.
6

Furthermore, even if the discussion had taken place at the appropriate time, it would
not amount to a specific, formal objection sufficient to preserve the error. See, e.g., Redd, 355
F.3d at 874 (“We have repeatedly held that a general objection to the district court’s jury
instructions is insufficient to satisfy Rule 51.” (internal quotation marks omitted)). Indeed,
the context in which the County mentioned Powell belies the notion that it was attempting to
object to the court’s “reasonable suspicion” charge. The pre-trial hearing at which these
remarks were made dealt entirely with evidentiary issues, such as pre-admitting exhibits for
trial. The County’s brief reference to Powell occurred in the midst of one of these evidentiary
objections. Specifically, the County objected to evidence that it had changed its policy to
require “reasonable suspicion” for a strip search following the incident in this case, arguing
that the evidence was inadmissible as a “subsequent remedial measure.” The magistrate
judge overruled this objection. The sole effect of this ruling was to admit evidence of the policy
change. Neither the ruling nor the objection had anything to do with the jury instructions.
In fact, the County did not even mention the jury instructions at this pre-trial conference
before the magistrate judge, who did not try the case.

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Rule 51(b)(2)”—after the court announces its proposed instructions, and before
the instructions and arguments are delivered.7 Fed. R. Civ. P. 51(c)(2)(A).
Second, the County argues that it should not have been required to object
to preserve error because any objection would have been futile given our
controlling precedent requiring reasonable suspicion. In a similar situation, the
Supreme Court refused to create a futility exception to plain error review. See
Johnson v. United States, 520 U.S. 461, 465-66 (1997). In Johnson, at the time
of trial, “near-uniform precedent both from [the Supreme Court] and from the
Courts of Appeals held” that, in a perjury prosecution, the materiality of the
alleged false statements could be decided by the judge, rather than the jury. Id.
at 467-68. Unsurprisingly, Johnson did not object at trial to the omission of the
materiality element from the jury charge. Id. at 464. By the time of Johnson’s
appeal, however, the Supreme Court had overruled its prior precedent. Id. Even
so, the Supreme Court allowed no exception to the rule allowing unpreserved
error to be reviewed only for plain error. See id. at 465-66. The language of Rule
51 clearly sets forth the requirements for preserving error and makes no
exception for situations where objection would be futile because of controlling
precedent. “Even less appropriate than an unwarranted expansion of the Rule
would be the creation out of whole cloth of an exception to it, an exception which
we have no authority to make.” Id. at 466. Futile or not, compliance with Rule

7

Although we have previously held that a party need not make a formal objection
where it has already made its position clear to the district court, see, e.g., Hartsell v. Dr.
Pepper Bottling Co. of Texas, 207 F.3d 269, 273 (5th Cir. 2000); Russell v. Plano Bank & Trust,
130 F.3d 715, 720 (5th Cir. 1997), this exception is no longer viable in light of the 2003
amendments to Rule 51. Rule 51 now expressly dictates the proper timing of objections. See
Fed. R. Civ. P. 51(c)(2); 9 James Wm. Moore et al., Moore’s Federal Practice § 51.33[1] (3d ed.
2008) (noting that “the amended Rule prevents a party from using the fact that the court is
already aware of its position as an excuse for a failure to make a specific, formal objection at
the charge conference”). As the Supreme Court has explained, “it is that Rule which by its
terms governs” the appeal in this case, and we have no authority to create exceptions to its
requirements. Johnson v. United States, 520 U.S. 461, 466 (1997).

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51 is required to preserve full appellate review of challenges to jury
instructions.8
Because the County did not make a proper, timely objection regarding the
reasonable suspicion requirement, we may review this unpreserved claim only
for plain error. See Fed. R. Civ. P. 51(d)(2); Fiber Sys. Int’l, 470 F.3d at 1158.
In this case, we need not decide whether the reasonable suspicion instruction
was erroneous, because any error in this regard was not plain.9 See United
States v. Jackson, 549 F.3d 963, 977-78 (5th Cir. 2008) (declining to decide the
question of error because “[a]ny error here is not plain”). To be plain, “‘the legal
error must be clear or obvious, rather than subject to reasonable debate.’” United
States v. Ellis, 564 F.3d 370, 377-78 (5th Cir. 2009) (quoting Puckett, 129 S. Ct.
at 1429). We have little difficulty concluding that any error in following decades
of well-settled circuit precedent does not rise to the level of obviousness.10 See

8

Rather than even suggest an alternative interpretation of Rule 51’s plain text, our
dissenting colleagues attempt to avoid its effect by citing cases discussing appellate waiver
generally. See, e.g., Citizens United v. Fed. Election Comm’n, 130 S. Ct. 876, 893 (2010);
Bradley v. Allstate Ins. Co., 620 F.3d 509, 519 (5th Cir. 2010); Belt v. EmCare, Inc., 444 F.3d
403, 408-09 (5th Cir. 2006); Lifemark Hosps., Inc. v. Liljeberg Enters., 304 F.3d 410, 428 n.29
(5th Cir. 2002). These cases have no bearing on charge waiver, which is a unique area of the
law and the only area governed by Rule 51. Whereas courts are free to carve out exceptions
to their own rules of appellate waiver, federal rules of procedure are “as binding as any statute
duly enacted by Congress, and federal courts have no more discretion to disregard [a] Rule’s
mandate than they do to disregard constitutional or statutory provisions.” Bank of Nova
Scotia v. United States, 487 U.S. 250, 255 (1988). Accordingly, the dissenters’ criticism that
we are “hid[ing] behind waiver” to avoid hard questions is misplaced. This criticism assumes
that we have the luxury of resolving legal questions in the abstract. Rigorously following
binding procedural rules, however, is not to shirk our duty, but to fulfill it.
9

Our dissenting colleagues argue that an en banc court should not assume error
without deciding the question. The Supreme Court, however, has likewise declined to decide
the question when reviewing a jury instruction for plain error, limiting itself to review of the
questions significant to the case presented. Lopez v. United States, 373 U.S. 427, 436-37
(1963). Here, as was true in Lopez, “[i]t is enough to say that in the circumstances of this case,
there was in any event no reversible error.” Id.
10

The Supreme Court has articulated one exception to this rule: “[W]here the law at
the time of trial was settled and clearly contrary to the law at the time of appeal[,] it is enough

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United States v. Evans, 587 F.3d 667, 671 (5th Cir. 2009) (concluding that any
error was not plain where argument was novel and not supported by circuit
precedent). Indeed, we have previously held that even where an argument
merely requires extending existing precedent, the district court’s failure to do so
cannot be plain error. United States v. Hull, 160 F.3d 265, 272 (5th Cir. 1998).
Therefore, the County cannot demonstrate that the inclusion of the reasonable
suspicion requirement in the jury instructions—a requirement consistent with
our longstanding precedent—was plain error.
C.
The County properly objected to the jury instruction that Ms. Jimenez’s
offense was minor as a matter of law during the opportunity for objections
provided by the court. Accordingly, we review this challenge under the abuse of
discretion standard. Santos, 589 F.3d at 764.
Ms. Jimenez was arrested for hindering apprehension. The relevant
statute provides that a person commits this offense “if, with intent to hinder the
arrest, prosecution, conviction, or punishment of another for an offense . . ., he:
(1) harbors or conceals the other; (2) provides or aids in providing the other with
any means of avoiding arrest of effecting escape; or (3) warns the other of
impending discovery or apprehension.” Tex. Penal Code Ann. § 38.05(a). Except
under circumstances not relevant here, this offense is a Class A Misdemeanor.
Id. § 38.05(c). The maximum punishment for a Class A Misdemeanor is a fine
of $4,000 or less, imprisonment of one year or less, or both. Id. § 12.21.
As the panel opinion properly concluded, this offense constitutes a minor
offense for purposes of our Fourth Amendment analysis:

that an error be ‘plain’ at the time of appellate consideration.” Johnson, 520 U.S. at 468. In
this case, however, there has been no change in controlling law since the time of trial. Thus,
we have no need to apply the exception to the facts here on plain error review and we decline
to do so.

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[T]he classification of a crime as a misdemeanor has been treated by
other circuits as a relevant or even determinative factor in
ascertaining whether there is a reasonable suspicion requirement.
See Roberts v. Rhode Island, 239 F.3d 107, 112 (1st Cir. 2001)
(“[W]hen the inmate has been charged with only a misdemeanor
involving minor offenses or traffic violations, crimes not generally
associated with weapons or contraband, courts have required that
officers have a reasonable suspicion that the individual inmate is
concealing contraband.”); Weber v. Dell, 804 F.2d 796, 804 (2d Cir.
1986) (“We conclude that a reasonable suspicion that an accused
misdemeanant or other minor offender is concealing weapons or
other contraband—suspicion based on the particular traits of the
offender, the arrest and/or the crime charged—is necessary before
subjecting the arrestee to the indignities of a strip/body cavity
search.”). In other settings, as well, misdemeanors have historically
been considered minor offenses.11 In Stewart, we cited the
applicability of the challenged policy to individuals arrested for
misdemeanors in support of our conclusion that the challenged
policy was unconstitutional because it applied to minor offenders
when no reasonable suspicion existed that they might possess
weapons or contraband. See Stewart v. Lubbock Cnty., Tex., 767
F.2d 153, 156 (5th Cir. 1985) (noting that “the detainees were
arrestees awaiting bond on misdemeanor or traffic violation
charges”). In Stewart, however, the detainees had been arrested
pursuant to Class C misdemeanors, which, unlike the Class A
misdemeanor in this case, were punishable only by fine.
Nevertheless, in light of the persuasive authority, we hold that [the
misdemeanor variant of] hindering apprehension . . . is, given its
misdemeanor status, a minor offense for these purposes . . . .
Jimenez, 621 F.3d at 377-78.

Therefore, the district court did not err in

instructing the jury that Ms. Jimenez’s offense was a minor offense as a matter
of law.

11

In now-repealed statutes governing the authority of United States Commissioners,
for example, “minor offenses” were defined as “misdemeanors punishable under the laws of
the United States, the penalty for which does not exceed imprisonment for a period of one
year, or a fine of not more than $1,000, or both.” Taberer v. Armstrong World Indus., Inc., 954
F.2d 888, 901 n.18 (3d Cir. 1992) (quoting 82 Stat. 1116, formerly codified at 18 U.S.C.
§ 3401(f) (1964 Supp IV)).

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III.
Because the County has not demonstrated reversible error in the jury
instructions in this case, we affirm the judgment of the district court. We
reinstate Parts III, IV, and V of the panel opinion, which rejected other
arguments that the County has not urged on rehearing.
AFFIRMED.

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JERRY E. SMITH, Circuit Judge, joined by JONES, Chief Judge, and
CLEMENT, Circuit Judge,1 dissenting:
A majority of this court chooses to ignore the Supreme Court and, in the
process, nimbly avoids an issue that needs deciding. I respectfully dissent.
First, the majority incorrectly concludes that Wood County did not preserve its error. The county raised, in the district court, the argument that our
precedent is at odds with Supreme Court caselaw, only to have the argument
properly rejected. Given that a district court does not have the authority to overrule our precedents, any further objections would have been futile. More egregious, however, is the majority’s failure to address an important constitutional
issue: whether the precedent of this circuit, requiring individualized reasonable
suspicion before conducting a strip-search of individuals arrested for minor
offenses, is incorrect in light of governing Supreme Court caselaw.
Even if the county did not properly preserve its argument—and our review
is thus for plain error—the first step of the plain-error analysis requires us to
decide whether there was error at all. The majority, however, declares that the
error was not plain before it decides whether error itself was present. By failing
to follow the plain-error analysis properly, the majority chooses to avoid the
issue of whether our precedent is at odds with Supreme Court caselaw. And
because our precedent is, in fact, directly contrary to a Supreme Court decision,
that failure—and the corresponding failure to correct the law of this circuit—is
inexcusable.
I.
Chandra Jimenez was arrested for hindering prosecution, a Class A misdemeanor. She was taken to Wood County Jail, where an employee of the Sheriff's
1

Chief Judge Jones and Judge Clement fully join parts II and III, concerning error
preservation, but do not completely agree with parts IV and V regarding the interpretation of
Supreme Court precedent.

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Department conducted a strip search. At the time, it was the policy of the
department to perform a strip search on all detainees entering the jail who were
arrested for a felony, a Class A misdemeanor, or a Class B misdemeanor.
Jimenez sued, alleging that the search violated her rights under the
Fourth Amendment. On appeal of a judgment for Jimenez, the county argued,
among other things, that, under Bell v. Wolfish, 441 U.S. 520 (1979), individualized reasonable suspicion is not required to conduct automatic strip searches of
all newly arrested detainees, regardless of the charged offense. The panel, however, bound by the precedent of this circuit, concluded that “a strip search of an
individual arrested for a minor offense must be premised on reasonable suspicion that the detainee is carrying weapons or contraband.” We took the case
en banc to determine whether our precedent is correct.

II.
The majority focuses solely on whether Wood County properly objected to
the jury instruction. And yet, by the time the instructions were considered, the
district court had already determined that the case would be governed by established Fifth Circuit precedent—a rather obvious conclusion, given that a district
court does not have the authority to overrule our precedents. Any objection to
the contrary would have been futile.2 Accordingly, a narrow-minded focus on the
whether a jury instruction was properly assigned a Federal Rule of Criminal
Procedure 51 objection is inappropriate; rather, our inquiry should be whether
the county essentially preserved the argument that our caselaw should be overruled as contrary to the decisions of the Supreme Court. “The general rule of

2

The reason for requiring an objection is “to alert the trial court to instruction errors.”
9 JAMES W. MOORE ET AL., MOORE’S FEDERAL PRACTICE § 51.33[2] (3d ed. 2008). There were
no errors in this instruction, because the court properly applied Fifth Circuit precedent. Thus,
there was no legitimate basis for Wood County to raise an objection, nor would any purpose
be served by objecting. Any objection might even have been considered frivolous and annoying.

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this court is that arguments not raised before the district court are waived and
will not be considered on appeal,” Celanese Corp. v. Martin K. Eby Const. Co.,
620 F.3d 529, 531 (5th Cir. 2010), but “[a]lthough issues not raised before the
district court are generally waived, ‘an argument is not waived on appeal if the
argument on the issue before the district court was sufficient to permit the district court to rule on it.’”3
The attorneys and magistrate judge addressed the issue of the minoroffense rule at a pretrial conference, at which they were discussing the admissibility of various exhibits. They turned their attention to a proposed exhibit consisting of the written search policy that superseded the Wood County policy
under which Jimenez was searched. The attorney for the county, Mr. Davis,
began explaining the existing caselaw, and the court responded in a manner that
suggested its familiarity with the Fifth Circuit minor-offense rule. After pressing the issue of what qualified as a minor offense, Davis turned to the uncertainty of the underlying caselaw:
MR. DAVIS: . . . Now, there’sSSthere’s still people who believe that
everything above a Class C misdemeanor is fair game. But out of an
abundance of cautionSSobviously, people who counsel counties would
prefer that they take, you know, a more stringent approach.
THE COURT: There’s a lotSSin other words, because there’s a lot of
offenses above Class C that aren’t closely aligned with the possession of weapons or contraband andSS
MR. DAVIS: You knowSS
THE COURT: SSthere’s a really good argument that even some felonies wouldn’t fall into that category.

3

Bradley v. Allstate Ins. Co., 620 F.3d 509, 519 (5th Cir. 2010) (internal quotations and
citation omitted); see also Belt v. EmCare, 444 F.3d 403 (5th Cir. 2006); Lifemark Hosps., Inc.
v. Liljeberg Enters., 304 F.3d 410, 428 n.29 (5th Cir. 2002). Cf. Hartsell v. Dr. Pepper Bottling
Co. of Tex., 207 F.3d 269, 273 (5th Cir. 2000) (“The failure to [object to a specific jury instruction] so may be excused when a party’s position equating to an objection has previously been
made clear to the trial judge, and further objection would be unavailing.”).

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MR. DAVIS: You know, that’sSSthat’s true, Your Honor. There’sSS
there are arguments both ways. And frankly speaking, the Fifth [he
means the Eleventh] Circuit [sic] now has come out with a completely different standard and they’ve held that everything above a
Class C misdemeanor is subject to the person coming into the jail
being strip searched [sic], soSS
After some confusion arising from the fact that Davis had misspoken with regard
to which circuit had issued the ruling, Davis explained it was an Eleventh Circuit decision that had repudiated the minor-offense rule:
MR. DAVIS: And that was a fairly recent case. I believe it was September or something like that. But itSSit re-examined and changed
the policy and basically held to a Wolfish standard which is if you
can show a legitimate penological interest in having people strip
searched, then it’s the penological interest that should dominate,
and that’s why the Eleventh CircuitSSthat’s what it based its holding on.
THE COURT: That’s an Eleventh Circuit case, though, right?
MR. DAVIS: It’s Eleventh Circuit.
THE COURT: Right, I understand that. It cited a Fifth Circuit case
though and said that it believed those cases were wrong, right?
MR. DAVIS: The previous cases. The Fifth Circuit cases that I
know haven’t addressed this recent Eleventh Circuit case.
THE COURT: Well, that’sSSthe Eleventh Circuit case you’re referring to, I read it, and it distinguished what it believed the controlling law was in the Fifth Circuit which it was not a strict Bell versus
Wolfish standard as ISSas I read the Eleventh Circuit case. Okay.
I wasSSI thought that you told me there was a recent Fifth Circuit
case thatSS
MR. DAVIS: Oh, noSS
THE COURT: SSabandoned its prior precedent, soSS

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That exchange confirms that (1) the county informed the court that the
Eleventh Circuit had held that Fifth Circuit precedent was in error; (2) the magistrate judge acknowledged and seemed to understand the Eleventh Circuit’s
holding; and (3) the magistrate judge understood that the Eleventh Circuit had
not raised any reason to think that the relevant Fifth Circuit caselaw had been
abrogated. Following the discussion, all the attorneys knew that existing Fifth
Circuit law would control.
The colloquy was “sufficient to permit the district court to rule on,” see
Bradley, 620 F.3d at 519, the question whether our precedent remained good
law. The exchange was sufficient, despite its relative paucity, because the question was not particularly difficult—the court obviously could not rely on Eleventh Circuit caselaw to overrule Fifth Circuit precedent. An extended objection
and argument on that issue were unnecessary.4
Furthermore, it is sometimes appropriate, where a party has preserved an
issue that is itself premised on a false assumption, to reconsider the assumption
rather than allow the rules of waiver to force the court to “assum[e] a premise
. . . that is itself in doubt.” Citizens United v. Fed. Election Comm’n, 130 S. Ct.
876, 893 (2010). Even the majority does not doubt that the county preserved the
issue of whether hindering apprehension constitutes a minor offense. That
4

The county’s only misstep was not formally objecting to argue that the court should
overrule Fifth Circuit precedent. Under the rule referenced in Bradley, however, the lack of
such a formal objection is not necessarily fatal. A court “should not require a party to object
when it would not have produced any results in the trial court because a solid wall of Circuit
authority then foreclosed the point.” Murray v. Anthony J. Bertucci Constr. Co., 958 F.2d 127,
129 n.1 (5th Cir. 1992) (citation and internal quotation marks omitted). Though the majority
is correct that we must reconsider our statement in Murray in light of intervening cases,
including Johnson v. United States, 520 U.S. 461 (1997), the fact that our circuit precedent
was settled is still relevant to the question whether “the argument on the issue before the
district court was sufficient to permit the district court to rule on” whether our precedents
should be overruled. Here, there was a solid wall, so additional argument was unnecessary
—merely pointing out the countervailing precedent, and agreeing that it was from outside the
Fifth Circuit, were sufficient to allow the district court to rule that Fifth Circuit law would
govern.

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issue, however, is premised on a false assumption—that it matters, under the
Fourth Amendment, whether the offense was minor. Accordingly, as in Citizens
United, it would be prudent for this en banc court to reconsider the minoroffense rule itself rather than expend our efforts on considering the application
of a rule that is in doubt.

III.
If, assuming arguendo, the county did not properly preserve the error, the
majority is correct to conclude that our review is for plain error,5 but the majority errs, because it does not actually conduct a plain-error analysis. In a typical
case, that analysis proceeds as follows: First, the panel determines that an issue
was not properly preserved and that it must now review for plain error (there is
no discretion here; the panel must review for plain error.). Next, the panel
addresses the first prong of the plain-error test: was there error? If there was,
the panel examines whether the error was plain. If so, the panel decides
whether that plain error affected substantial rights. If it did, the panel decides
whether to exercise its discretion to correct the error on the ground that it affects
the integrity and fairness of the judicial proceedings.6
Accordingly, the next step, after the majority concluded that the county did
not properly preserve its argument, would be to determine whether there was
error. Specifically, we would have to decide whether our precedent, which states
that individualized reasonable suspicion is needed to conduct a strip search of
5

To prove plain error, a party must “show (1) there was error, (2) the error was plain,
(3) the error affected his substantial rights, and (4) the error seriously affected the fairness,
integrity or public reputation of judicial proceedings.” United States v. Jackson, 549 F.3d 963,
975 (5th Cir. 2008).
6

Notice that this is the only discretionary step in the plain-error analysis. Where error
is not preserved, we must engage in plain-error review, applying the four prongs seriatim. It
is only if we reach the fourth prong that we have the discretion to grant relief to the nonpreserving appellant.

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someone arrested for a minor offense, is correct in light of governing Supreme
Court caselaw. But this is not what the majority does. It instead chooses to
pretermit step one of the plain-error test and jump directly to step two, at which
the majority concludes that any possible error was not plain and that the county
is accordingly not entitled to relief.
There is no credible rationale for the majority’s decision to avoid step one
of the plain-error test. The issue has been thoroughly briefed and extensively
discussed, and neither party would be prejudiced by our consideration of it.
Moreover, the question whether reasonable suspicion is necessary before conducting a strip search of those arrested for minor offenses is plainly an important question of law, evidenced by the existence of a recent circuit split—a split
that has drawn the attention of the Supreme Court, no less.7
If there was error, but it was not plain, we should at least announce a rule
thatSSeven if the county cannot benefit from it because it was not preserved
SSwill affect future circumstances involving the common situation of searches in
detention facilities. The county would lose this appeal, yes, but the en banc role
would have been fulfilled: We would be correcting our circuit’s erroneous precedent and announcing a rule so that the law would be “plain” the next time there
is a strip search of a detainee. After all, we take cases en banc to “secure or
maintain uniformity of the court’s decisions” or decide a “question of exceptional
importance”8—not merely to ensure that a dispute between two parties is correctly resolved.
I do not deny that the majority’s approach—assuming-without-deciding
that an error is present in order to decide the case on the ground that the error

7

The Supreme Court is reviewing a case addressing this issue. See Florence v. Bd. of
Chosen Freeholders of Burlington, 621 F.3d 296 (3d Cir. 2010), cert. granted, 131 S. Ct. 1816
(2011).
8

FED. R. APP. P. 35(a).

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would nonetheless not be plain—is common in panel decisions of this court. It
is one thing, however, for a panel to “assume-without-deciding” when confronted
with an open question of law. It is another thing entirely when the en banc court
chooses to avoid addressing a possible conflict with controlling Supreme Court
precedent by using that same approach. The former is understandable, and perhaps even admirably pragmatic; the latter is an indefensible abdication of our
duty as a lower court to enforce the decisions of the Supreme Court.

IV.
The next step should be determining whether there was error—namely,
whether our precedent requiring individualized reasonable suspicion before conducting a strip search of those arrested for a minor offense is in accord with Wolfish. Obviously, it is not, as a brief overview of Wolfish, our precedent, and the
countervailing caselaw will show.

A.
In Wolfish, the Court rejected a Fourth Amendment challenge to a detention center’s policy of conducting strip and visual body cavity searches on all
detainees after a contact visit with outsiders, regardless of the reason for their
incarceration and without any reasonable suspicion that a detainee possessed
contraband (“the strip-search policy”). Wolfish was a class action brought by
pretrial detainees and convicted prisoners who were being housed in the New
York City Metropolitan Correctional Center (“MCC”). Wolfish, 441 U.S. at 523.
The challenged strip search policy, however, applied to all individuals housed in
the MCC, not just pretrial detainees and convicted prisoners. Id. at 558. In
addition to those persons, the MCC also housed witnesses in protective custody
and those incarcerated for contempt of court, all of whom were also subject to the
strip-search policy. Id. at 524.
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Under that policy, all detainees were required to “expose their body cavities for visual inspection as part of a strip search conducted after every contact
visit with a person from outside the institution.” Specifically, a male inmate was
required to “lift his genitals and bend over to spread his buttocks for visual
inspection,” and a female inmate was required to allow visual inspection of her
“vaginal and anal cavities.” Id. at 558 n.39.
The Supreme Court upheld the MCC’s strip search policy in its entirety,
holding that searches conducted under the policy were reasonable under the
Fourth Amendment. Assuming without deciding that individuals retain some
Fourth Amendment rights following commitment to a correctional facility, the
Court explained that the reasonableness test requires “a balancing of the need
for the particular search against the invasion of personal rights that the search
entails.” Id. at 559. The Court specified four factors a court should consider to
assess the reasonableness of a search: (1) the scope of the intrusion; (2) the manner in which the search is conducted; (3) the justification for initiating the
search; and (4) the place in which the search is conducted. Id.
In applying its balancing test to the facts of Wolfish, the Court acknowledged the degree to which the strip-search policy invaded the personal privacy
of the detainees, but it emphasized the security interests of the MCC, recognizing that “[a] detention facility is a unique place fraught with serious security
dangers” and that “[s]muggling of money, drugs, weapons, and contraband is all
too common an occurrence.” Id. The Court concluded that, after “[b]alancing the
significant and legitimate security interests of the institution against the privacy
interests of the inmates,” the Fourth Amendment did not prohibit visual body
cavity inspections “conducted on less than probable cause.” Id. at 560. The
Court also specifically rejected the argument that pretrial detainees should
receive greater Fourth Amendment protection from searches conducted pursuant
to the strip-search policy than do convicted detainees:
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Neither the Court of Appeals nor the District Court distinguished between pretrial detainees and convicted inmates in reviewing the challenged security practices, and we see no reason to do so.
There is no basis for concluding that pretrial detainees pose any
lesser security risk than convicted inmates. Indeed, it may be that
in certain circumstances they present a greater risk to jail security
and order. In the federal system, a detainee is committed to the
detention facility only because no other less drastic means can reasonably assure his presence at trial. As a result, those who are
detained prior to trial may in many cases be individuals who are
charged with serious crimes or who have prior records. They also
may pose a greater risk of escape than convicted inmates. This may
be particularly true at facilities like the MCC, where the resident
convicted inmates have been sentenced to only short terms of incarceration and many of the detainees face the possibility of lengthy
imprisonment if convicted.
Id. at 547 n.28 (citations omitted).
In the three decades since Wolfish, ten circuits, including this court,
applied the balancing test in Wolfish and concluded that an arrestee charged
with minor offenses may not be strip-searched unless there is reasonable suspicion that he is concealing a weapon or other contraband.9 During those decades,

9

See, e.g., Roberts v. Rhode Island, 239 F.3d 107, 113 (1st Cir. 2001) (holding that a
blanket policy of strip-searching arrestees was unreasonable as applied to those arrested for
minor offenses); Wilson v. Jones, 251 F.3d 1340, 1343 (11th Cir. 2001) (holding that strip
searches without reasonable suspicion violate the Fourth Amendment); Kelly v. Foti, 77 F.3d
819, 821 (5th Cir. 1996) (“Jail officials may strip search a person arrested for a minor offense
and detained pending the posting of bond only if they possess a reasonable suspicion that he
is hiding weapons or contraband.”); Masters v. Crouch, 872 F.2d 1248, 1255 (6th Cir. 1989)
(“[A]uthorities may not strip search persons arrested for traffic violations and nonviolent
minor offenses solely because such persons ultimately will intermingle with the general population at a jail when there were no circumstances to support a reasonable belief that the
detainee will carry weapons or other contraband into the jail.”); Weber v. Dell, 804 F.2d 796,
802 (2d Cir. 1986) (Jail officials may not strip search persons arrested for “minor offenses
unless the officials have a reasonable suspicion that the arrestee is concealing weapons or
other contraband.”); Jones v. Edwards, 770 F.2d 739, 742 (8th Cir. 1985) (holding that a strip
search of one arrested for violation of a leash law was unreasonable under Wolfish where the
police had no reason to suspect he would try to sneak a weapon or contraband into the holding
cell); Giles v. Ackerman 746 F.2d 614, 615 (9th Cir. 1984) (“[A]rrestees for minor offenses may
(continued...)

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no circuit court held otherwise.
That changed in 2008, when the en banc Eleventh Circuit overruled its
precedent to hold that, under Wolfish, the Fourth Amendment permits strip
searches of all arrestees that are being booked into a detention facility, regardless of whether there was any reasonable suspicion that an arrestee possessed
contraband.10 The en banc Ninth Circuit followed suit in 2010, overruling its
precedent to uphold a blanket policy of strip-searching all arrestees before they
enter a general jail population.11 Also in 2010, a panel of the Third Circuit, in
Florence, joined the Ninth and Eleventh, upholding strip-search procedures
employed by a county jail and a county correctional facility that did not require
reasonable suspicion to search all detainees. Finally, in 2011, a panel of the
District of Columbia Circuit adopted the Eleventh Circuit’s approach.12

B.
In this court, the majority rule was embraced for the first time in Stewart
v. Lubbock County, 767 F.2d 153 (5th Cir. 1985). We addressed a Fourth
Amendment challenge to a jail policy that allowed for a strip search of all arres-

9

(...continued)
be subjected to a strip search only if jail officials have a reasonable suspicion that the particular arrestee is carrying or concealing contraband or suffering from a communicable disease.”);
Hill v. Bogans, 735 F.2d 391, 394 (10th Cir. 1984) (holding that it was unreasonable to stripsearch a person arrested for a traffic violation, because there was no reasonable suspicion that
he was concealing contraband); Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1273 (7th Cir.
1983) (holding that a strip search of arrestees charged with minor offenses was unreasonable
“without a reasonable suspicion by the authorities that either of the twin dangers of concealing
weapons or contraband existed”); Logan v. Shealy, 660 F.2d 1007, 1013 (4th Cir. 1981) (holding
that a strip-search policy “cannot be constitutionally justified simply on the basis of administrative ease in attending to security considerations.”).
10

Powell v. Barrett, 541 F.3d 1298, 1314 (11th Cir. 2008) (en banc).

11

Bull v. City & Cnty. of San Francisco, 595 F.3d 964, 977 (9th Cir. 2010) (en banc).

12

Bame v. Dillard, 637 F.3d 380 (D.C. Cir. 2011).

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tees, regardless of the severity of the charge or of whether there was reasonable
suspicion that an arrestee possessed any weapons or contraband. Id. at 154.
Confronted with an issue of first impression for this circuit (notwithstanding Wolfish), the court turned to Mary Beth G. v. City of Chicago, 723 F.2d 1263
(7th Cir. 1983). There, the court held that a city policy requiring a strip search
and visual body cavity search of all women arrested and detained in a city
lockup, regardless of the severity of the charge and regardless of whether there
was reasonable suspicion that the arrestee possessed any weapons or contraband, was unconstitutional under the Fourth Amendment. The court began its
analysis with Wolfish:
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.
Mary Beth G., 723 F.2d at 1271 (quoting Wolfish, 441 U.S. at 559).
The Seventh Circuit went on, however, to distinguish its facts from those
in Wolfish. The court stated that the detainees in Wolfish “were awaiting trial
on serious federal charges after having failed to make bond and were being
searched after contact visits.” Id. at 1272. Conversely, the detainees in Mary
Beth G. were “minor offenders who were not inherently dangerous and who were
being detained only briefly while awaiting bond.” Id.
After distinguishing Wolfish, the Mary Beth G. court applied the Wolfish
balancing test and concluded that the need for strip-searching “minor offenders
who were not inherently dangerous and who were being detained only briefly
while awaiting bond . . . when there was no reason to believe they were hiding
weapons or contraband on their persons” did not outweigh the personal privacy
interest of the detainees. Id. The court ruled that the strip searches were
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unreasonable unless there was a reasonable suspicion that weapons or contraband might be concealed. Id. at 1273.
This court in Stewart aped the reasoning of the Seventh Circuit without
further analysis and declared the strip-search policy unconstitutional.13 Stewart
has since been cited as establishing a precedent in this circuit that reasonable
suspicion is necessary to strip-search those arrested for minor offenses.14 No
court in this circuit has since attempted to bolster the reasoning contained Stewart for distinguishing Wolfish—nor does the majority do so today.

C.
In Powell, the en banc Eleventh Circuit rejected a Fourth Amendment
challenge to a policy of strip-searching all arrestees at the time of intake in the
jail, regardless of the offense charged or of whether there was reasonable suspicion that an arrestee possessed weapons or contraband:
The reasoning that leads us to uphold the searches of these five
plaintiffs is simple. After balancing the privacy interests of detention facility inmates against the important security interests
involved, the Supreme Court upheld the visual body cavity strip
searches at issue in the Bell case against a Fourth Amendment
attack. The security needs that the Court in Bell found to justify
strip searching an inmate re-entering the jail population after a contact visit are no greater than those that justify searching an arrestee when he is being booked into the general population for the first
time. And the searches conducted in the Bell case were more intrusive, and thereby impinged more on privacy interests, than those
conducted in this case. It follows from the Bell decision that the less
intrusive searches in this case do not violate the Fourth Amendment.

13

The Stewart panel cited Logan v. Shealy, 660 F.2d 1007 (4th Cir. 1981), as additional
support but did not provide a significant discussion of that case.
14

See, e.g., Williams v. Kauffman Cnty., 352 F.3d 994, 1004 (5th Cir. 2003); Watt v.
Richardson, 849 F.2d 195, 197 (5th Cir. 1988).

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Powell, 541 F.3d at 1302. Essentially, the court held that the facts of Wolfish
dictate the holding in cases involving those who are strip-searched before entry
into a detention facility regardless of the offense for which they are arrested and
regardless of whether there was any reasonable suspicion that the person possessed weapons or contraband. This is for two reasons.
First, Wolfish explicitly rejected any distinction in security risk based on
whether the detainee was a convicted offender or merely an arrestee.15 Furthermore, the strip-search policy upheld in Wolfish applied to individuals who were
not even under arrest, such as non-offenders held as material witnesses. Under
the Wolfish factors, there is no basis by which to afford greater protection to
misdemeanor arrestees in county detention facilities compared to the protection
afforded to witnesses in protective custody in a federal detention facility.
Second, the basis for the security concerns in WolfishSScontact visits with
outsidersSSis also present at the time of intake. “[A]n inmate’s initial entry into
a detention facility” is essentially “coming after one big and prolonged contact
visit with the outside world.” Powell, 541 F.3d at 1310.
Thus, Wolfish cannot be conscientiously distinguished on the basis of the
severity of the offense committed by the detainee or the gravity of the risk posed
following inmate contact visits versus initial entry into the detention center.
Without those two factors, there is no reasonable basis by which Wolfish can be
distinguished from the facts of the cases that have led to the majority rule.

D.
Some have argued that, although Wolfish eliminated the distinction
between convicted offenders and pretrial detainees who do not qualify for release
on bail, it did not do away with the distinction between those groups and all
15

See Wolfish, 441 U.S. at 546 n.28 (“There is no basis for concluding that pretrial
detainees pose any lesser security risk than convicted inmates.”).

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arrestees generally. That is, however, a misreading of Wolfish.
The Wolfish Court was addressing a challenge to the policy as a whole;
essentially, it was a facial challenge, not as-applied. The Court, fully aware that
the strip-search policy was applied to those who had not even been arrested for
any offense, chose to allow the policy to stand in its entirety. The Court did not
separate the detainees into categories and then conduct a Fourth Amendment
test to determine the reasonableness of the searches for each category. Nor did
it say that the policy was fine for pretrial detainees and convicted offenders but
not for others. Instead, the Court flatly declared that the policy did not violate
the Fourth Amendment.
Importantly, Wolfish was a class action, in which the district court had
explicitly identified the class as “all persons detained in the Metropolitan Correctional Facility [‘MCC’].” U.S. ex rel. Wolfish v. Levi, 439 F. Supp. 114, 119 n.1
(S.D.N.Y. 1977). The district court had made sure to specify that the class
included “the pre-trial detainees for whom the facility was primarily designed,
sentenced prisoners either awaiting assignment to a prison facility or assigned
here to serve their (usually relatively short) terms, prisoners here on writs to
testify or to stand trial, witnesses in protective custody, and persons incarcerated for contempt.” Id. (emphasis added). Even if the Supreme Court chose,
rhetorically, to focus on pretrial detainees and convicted detainees, the case it
decided concerned more than those categoriesSSit also involved those who were
not even suspected of committing an offense, such as witnesses being held in protective custody.
Unless one believes that Wolfish is just an advisory opinion in which the
Justices mused generally on how we should treat detainees, it must be acknowledged that the opinion was an explanation for a ruling that decided a case filed
on behalf of all individuals detained in the MCC, including those who had not
even been arrested for an offense. The Wolfish Court held that all members of
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the plaintiff classSSeven detainees who were not under arrestSScould be given
a cavity search without any reasonable suspicion that they possessed contraband, and merely because they were being detained in that facility. That is the
holding of Wolfish that binds us.16

E.
In sum, though our precedent superficially adheres to the balancing test
in Wolfish, it fails to give proper weight to the manner in which the Supreme
Court actually applied the test. There are no legitimate grounds for distinguishing between the facts of Wolfish and the facts here. If the strip-search policy in
Wolfish did not require reasonable suspicion under the Supreme Court’s balancing test, the strip-search policy here must also not require reasonable suspicion
under that same test. Thus, any court that performs the balancing test to reach
a contrary conclusion is necessarily misapplying the test set forth by the
Supreme Court.
Consider the following hypothetical: If Jimenez had been arrested and, for
some reason, taken to a detention facility in Wood County that was exactly the
same as the one in Wolfish, our current, misguided precedent would still require
reasonable suspicion before conducting a strip search on her, and merely because
she was arrested for a minor offense. That is the categorical rule we have set in
place. But such a rule is plainly not a faithful application of Wolfish, which analyzed the safety concerns present in the detention facility as a whole without re16

It is true that none of the categories of detainees that comprised the class in Wolfish
is an exact match for an individual arrested for a minor offense. It would be nonsensical, however, to believe that the Supreme Court’s test for the reasonableness of a strip search would
consider persons detained because they had been arrested for committing an offense to be less
of a risk than those who had been detained just because they were witnesses in protective custody. It is not rational to distinguish Wolfish on the technical ground that it does not explicitly
refer to misdemeanor arrestees, and then apply the Wolfish balancing test to hold that those
arrestees somehow deserve greater Fourth Amendment protection under the test than do witnesses in protective custody.

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gard to the danger posed by a person based on his alleged offense. One may
quibble over what the correct approach should beSSgiven other variablesSSbut
this example proves that our precedent cannot possibly be correct.
Moreover, the analysis in StewartSSthe first case to establish the minoroffense rule in the Fifth CircuitSSis flawed. The Stewart panel relied on Mary
Beth G., which, 73 F.2d at 1272, distinguished Wolfish on the basis of the severity of the offense for which the detainee was arrested. As the Eleventh Circuit
pointed out in Powell, that is a blatant misreading of the majority opinion in
Wolfish, 441 U.S. at 546 n.28, which explicitly states that the Court’s ruling
applied regardless of the reason why the individual was detained in the correction center. The panel erred in Stewart, and the law in this circuit has been
contrary to Supreme Court precedent ever since.

V.
The majority also ignores an important consideration: that corrections officials “should be accorded wide-ranging deference in the adoption and execution
of policies and practices that in their judgment are needed to preserve internal
order and discipline and to maintain institutional security.” Wolfish, 441 U.S.
at 547. That deference is not on account just of the practical realities of detention facilities but is based on an acknowledgment of the structural limitations
of the judicial branch.17 “[C]ourts should defer to the informed discretion of
prison administrators because the realities of running a corrections institution
are complex and difficult, courts are ill equipped to deal with these problems,
and the management of these facilities is confided to the Executive and Legisla-

17

“[J]udicial deference is accorded not merely because the administrator ordinarily will,
as a matter of fact in a particular case, have a better grasp of his domain than the reviewing
judge, but also because the operation of our correctional facilities is peculiarly the province of
the Legislative and Executive Branches of our Government, not the Judicial.” Wolfish, 441
U.S. at 548 (citing Procunier v. Martinez, 416 U.S. 396, 405 (1974)).

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tive Branches, not to the Judicial Branch.”18
In Jimenez, an arrested individual was placed in a secure area of a detention facility alongside other detainees. When a person is brought to a county jail
for holding, the corrections officials know very little about their new resident;
they see only the reason for the arrest, which may have no relationship to the
security risk he poses. To require those officials to have reasonable suspicion for
a search before exposing them to other detainees would be impractical and could
cause a significant security risk. The Wood County Sheriff imposed the stripsearch policy to ensure that those security risks would be controlled; given Wolfish, and in accord with common sense, we should defer to that policy judgment.

VI.
In sum, the majority incorrectly concludes that the county did not preserve
error. But, more importantly, the majority wrongly declares that the error was
not plain before deciding whether there even was error. If a majority of this en
banc court (incorrectly) believes that our precedent is not at odds with Supreme
Court jurisprudence, let those judges say so. If, on the other hand, a majority
of our judges realize that we have misapplied a Supreme Court decision, we
should use the opportunity of en banc rehearing to correct the error. In either
circumstance, there is no need to hide behind waiver or assuming-withoutdeciding.
I can think of no reasonSSand the majority surely has not provided oneSS
for electing not to address whether our precedent is at odds with Wolfish, beyond
a desire to avoid deciding difficult questions. But resolving hard issues is what
the en banc process is usually all about. I respectfully dissent.

18

See id. at 548 n.29 (citing Jones v. N.C. Prisoners’ Labor Union, 433 U.S. 119, 126
(1977); Pell v. Procunier, 417 U.S. 817, 827 (1974); Martinez, 416 U.S. at 404-05).

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No. 09-40892
EMILIO M. GARZA, Circuit Judge, with whom EDITH H. JONES, Chief Judge,
JERRY E. SMITH, EDITH BROWN CLEMENT, and PRISCILLA R. OWEN,
Circuit Judges, join, dissenting:
The majority refuses to acknowledge the most salient issue raised by the
County before the panel and this en banc court: whether this court’s precedent
in Stewart v. Lubbock County, 767 F.2d 153 (5th Cir. 1985), and its progeny,
requiring reasonable suspicion before individuals arrested for minor offenses can
be subjected to visual strip searches, conflicts with the Supreme Court’s holding
in Bell v. Wolfish, 441 U.S. 520 (1979). That is, the County contends not that the
district court failed to follow Fifth Circuit precedent but that the Fifth Circuit
failed to follow Supreme Court precedent.

The County raises this issue

separately from the objection to the jury charge under current caselaw. The
majority holds, nonetheless, that Wood County failed to preserve this separate
issue by not objecting to the district court’s jury instructions on this distinct
ground as required by Rule 51 of the Federal Rules of Civil Procedure. But the
majority conflates the issues: the County has not argued that the Bell v. Wolfish
error is confined to the jury instructions. That is, the County’s challenge to the
minor offense rule before this court is not wed to its alternative claim of jury
charge error regarding the application of the “minor offense” rule under current
caselaw.1 The Wolfish error permeates the entire case. While the County
certainly needed to satisfy the requirements in Rule 51 in order to preserve its
alternative argument under current caselaw, its general challenge to the minor
offense rule presents us with a broader question: whether the County’s failure
to challenge the “minor offense” rule at the trial level prevents this en banc court
from considering the obvious tension between our caselaw and Supreme Court
precedent. I believe it does not and respectfully dissent.
1

The panel recognized these were two separate issues, Jimenez v. Wood Cnty., 621 F.
3d 372, 375 (5th Cir. 2010), and so does the majority. See majority op. at 3.

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All the parties, including the district court, agreed that this case was
governed by Stewart and its progeny. Under Stewart, authorities can only strip
search an individual arrested for a minor offense if the authorities possess
reasonable suspicion the arrestee was carrying weapons or contraband. 767 F.2d
at 156-57.

Accordingly, any objection couched as a challenge to the “minor

offense” rule would have been correctly denied because the trial court had no
authority to overrule Fifth Circuit caselaw. Jimenez, 621 F.3d at 376. The
majority holds, however, that such an objection was necessary in order to
preserve error before the en banc court. Namely, it would require an objection
to assure the en banc court that the district court knew what the district court
and the parties were quite cognizant of—that the “minor offense” rule applied
to this case by Circuit caselaw. Ultimately, the purpose of any objection is to
notify the district court that it—the district court—is in error and to give that
court an opportunity to correct its error.

Hartford Lloyd’s Ins. Co. v.

Teachworth, 898 F.2d 1058, 1060 (5th Cir. 1990). Here, an objection to any
Stewart-based issue could not have served that purpose. Moreover, the district
court had no authority to reconsider Stewart. Nor could the panel have changed
the law under these circumstances. Martin v. Medtronic, Inc., 254 F.3d 573, 577
(5th Cir. 2001). Instead, the en banc court was the first proper legal venue
where Wood County could have successfully brought a point of error challenging
the Fifth Circuit’s “minor offense” rule. The purpose of the forfeiture rule is not
to prevent an en banc court from correcting its own precedent.
Could this issue have been presented in a Rule 12(b)(6) motion? Certainly.
It could have also been presented in a motion for summary judgment, a motion
for judgment as a matter of law, or a motion for relief from judgment under Rule
60(b). Should this have occurred? Of course. However, the question is not
whether the County should have challenged Stewart and its progeny in the
district court, but instead, whether this en banc court should consider the
obvious tension between Supreme Court precedent and our caselaw under these
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circumstances. Because (1) any challenge to the minor offense rule would have
informed the district court what it already knew and (2) the County has stated
a persuasive claim that our precedent conflicts with Supreme Court authority,
I would answer yes.2 Because the use of a procedural device to avoid addressing
an obvious conflict with Supreme Court precedent is objectionable, especially at
the en banc level of review, I dissent.

2

Further, I agree with Judge Smith that even if the County did not preserve error and
we then review for plain error, under these circumstances we should begin that analysis by
addressing whether the district court’s instructions contained error, rather than avoiding that
question by holding that any error in the instructions was not plain. See Smith’s dissent at
6-8.

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No. 09-40892
EDITH BROWN CLEMENT, Circuit Judge, joined by JONES, Chief Judge, and
GARZA, Circuit Judge, dissenting:
I join Judge Garza’s dissent and parts II and III of Judge Smith’s dissent.
I write separately to express a narrow disagreement with Judge Smith’s
application of Bell v. Wolfish to Jimenez’s claim.
As Judge Smith correctly observes, in upholding a blanket strip-search
policy applicable to all inmates housed at the MCC, including pretrial detainees
and witnesses held in protective custody, Wolfish necessarily rejected the need
for reasonable suspicion before a person entering the general population of a
detention facility may constitutionally be strip searched. See Bell v. Wolfish, 441
U.S. 520, 558–60 (1979). I therefore agree with Judge Smith’s conclusion that
our precedents holding that reasonable suspicion is always required to strip
search those arrested for minor offenses are inconsistent with Wolfish.
I do not, however, agree with Judge Smith’s further conclusion that
Wolfish necessarily sanctions the strip search of every person even temporarily
held at a detention facility. Wolfish “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. In Wolfish, the justification advanced for the challenged
searches was “to discover [and] deter the smuggling of weapons, drugs, and other
contraband into the institution.” Id. at 558. But the threat of this type of
contraband smuggling is likely to be significantly lessened when an arrestee is
temporarily detained in a holding cell rather than being admitted into the
general population of a jail or prison. Indeed, the recent Third, Ninth, and
Eleventh Circuit opinions on which Judge Smith relies were all careful to clarify
that the strip search policies they respectively upheld were applicable only to
arrestees entering the general jail populations. Florence v. Bd. of Chosen
Freeholders of Burlington, 621 F.3d 296, 311 (3d Cir. 2010) (“[B]alancing the
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Jails’ security interests at the time of intake before arrestees enter the general
population against the privacy interests of the inmates, we hold that [these]
strip search procedures . . . are reasonable.” (emphasis added)); Bull v. City &
Cnty. of San Francisco, 595 F.3d 964, 980–81 (9th Cir. 2010) (en banc) (“the
rights of arrestees placed in custodial housing with the general jail population
are not violated by a policy or practice of strip searching each one of them as part
of the booking process” (emphasis added) (internal quotation marks omitted));1
Powell v. Barrett, 541 F.3d 1298, 1300 (11th Cir. 2008) (en banc) (“We granted
rehearing en banc to decide whether a policy . . . of strip searching all arrestees
as part of the process of booking them into the general population of a detention
facility . . . is constitutionally permissible.” (emphasis added)).2
The record before us indicates that after her arrest, Jimenez was
transported to the Wood County jail, strip searched, then placed in a holding cell
with three other detainees until she was released the following morning. These
facts differ markedly from those considered in Wolfish, Florence, Bull, and
Powell, all of which dealt with strip searches performed prior to entry (or reentry) into the general population of a detention facility. Entry into the general
population of the MCC facility at issue in Wolfish meant access to more than 500
other inmates who, for approximately 16 hours a day, were free to interact with
one another in “multipurpose” common rooms. 441 U.S. at 525. Detainees under

1

The Ninth Circuit explicitly left undisturbed its precedents requiring individualized
suspicion to strip search “arrestees who were not classified for housing in the general jail or
prison population,” including intoxicated arrestees detained until sober, arrestees placed in
holding cells until posting bond, and arrestees detained prior to a determination of whether
they could be released on their own recognizance. Bull, 595 F.3d at 981.
2

The Eleventh Circuit repeatedly emphasized that its analysis was confined to searches
performed upon entry or re-entry into the general population. Powell, 541 F.3d at 1300, 1301,
1302, 1311. This emphasis is understandable considering the county jail at issue in Powell
housed over 2,900 inmates—a fact that underscores the difference between detention in a
holding cell and entry into a general jail population. See id. at 1310 n.4.

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such circumstance obviously have far greater opportunities for smuggling (and
using) contraband between each other than did Jimenez during her brief stay in
a holding cell with three other arrestees. Although Wolfish should certainly
guide review of Jimenez’s claim, I do not agree with Judge Smith that it
straightforwardly necessitates a judgment against her. In my view, the
balancing test set forth in Wolfish, id. at 559, requires an evaluation of the “need
for the particular search” in light of the specific facts surrounding Jimenez’s
detention in the Wood County jail—facts which are underdeveloped on this
record because they were essentially irrelevant under this court’s erroneous
minor-offense rule.
Because I would overrule our precedents establishing the minor-offense
rule applied by the district court, I would remand for further development of the
record and with instructions to decide Jimenez’s claim according to the
principles articulated in Wolfish, particularly that corrections officials “should
be accorded wide-ranging deference in the adoption and execution of policies and
practices that in their judgment are needed to preserve internal order and
discipline and to maintain institutional security.” Id. at 547.

35