concurring:

I concur with all but part B of the well-written majority opinion. I depart from the majority because I believe that at the time of Way’s body cavity search, the Fourth Amendment principles governing blanket searches prohibited strip and body cavity blanket searches and required individualized reasonable suspicion based on specific and articulable facts before such a search could be conducted on a misdemeanor arrestee. I particularly disagree with the majority’s parsimonious approach to the analysis of our precedent, which focuses on the application of clearly established Fourth Amendment principles to each penal code section we have addressed and not on the well-established principles themselves. The fact of the matter is that Ventura County had an unconstitutional blanket strip search policy which permitted such searches based upon no specific, articulable facts at all — a policy we have repeatedly held unconstitutional. I cannot go so far as to say that under the circumstances the individual officers acted objectively unreasonably, however, only because reasonable officers in Brooks’ and Hanson’s position could have believed that the Ventura County Sheriffs Department policy comported with the Constitution. Therefore I concur in holding that the officers are entitled to qualified immunity.

I

I disagree that we can find clearly established law in this case only if we have previously addressed the constitutionality of a strip and body cavity search of a misdemeanor drug arrestee. To the contrary, a constitutional right may be clearly established when “[t]he reasoning, though not the holding” of a prior decision applies to a set of facts, Hope v. Pelzer, 536 U.S. 730, 743 , 122 S.Ct. 2508 , 153 L.Ed.2d 666 (2002), and “officials can still be on notice that their conduct violates established law even in novel factual circumstances,” id. at 741 , 122 S.Ct. 2508 . “Otherwise, officers would escape responsibility for the most egregious forms of conduct simply because there was no case on all fours prohibiting that particular manifestation of unconstitutional conduct.” Deorle v. Rutherford, 272 F.3d 1272, 1286 (9th Cir.2001). The Supreme Court has rejected this parsimonious approach to the Fourth Amendment principle of reasonableness, stating that the balancing test fashioned in Bell v. Wolfish, 441 U.S. 520, 559 , 99 S.Ct. 1861 , 60 L.Ed.2d 447 (1979), is “not capable of precise definition or mechanical application.”

The clearly established general Fourth Amendment principle of reasonableness, which we have applied to strip and body cavity searches of arrestees, see Thompson v. City of Los Angeles, 885 F.2d 1439, 1445 (9th Cir.1989), rendered the Ventura County blanket strip and body cavity search policy unconstitutional. We have interpreted the principle of reasonableness in the context of misdemeanor pretrial detainees to require application of a standard of individualized reasonable suspicion, such that “arrestees ... may 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.” Giles v. Ackerman, 746 F.2d 614, 615 (9th Cir.1984) (per curiam) (emphasis added), overruled in part on other grounds by Hodgers-Durgin v. de la Vina, 199 F.3d 1037 , 1040 n. 1 (9th Cir.1999) (en banc). Only consideration of the multiplicity of factors giving rise to individualized reasonable suspicion, such as “the nature of the offense, the arrestee’s appearance and conduct, and the prior arrest record,” properly balances the “intrusion on the individual’s Fourth Amendment interests against [the] promotion of legitimate governmental interests.” Id. at 617 (emphasis added). Moreover, “[i]n most instances *1165 the unreasonableness of a strip search conducted prior to an [own recognizance] release determination is plain.” Ward v. County of San Diego, 791 F.2d 1329, 1333 (9th Cir.1986). We have routinely struck down blanket strip search policies as applied against misdemeanor arrestees, and we have gone so far as to state that “no published state or federal case since Schmerber v. California, 384 U.S. 757 , 86 S.Ct. 1826 , 16 L.Ed.2d 908 (1966) ... upholds the constitutionality of a blanket policy of strip searches of minor offense arrestees.” Ward, 791 F.2d at 1332 .

While the majority broadly asserts that we held in Thompson, 885 F.2d at 1447 , that the nature of the charge alone, when it involves drugs, contraband, or violence, warrants a departure from the standard of individualized reasonable suspicion, I read our holding in Thompson much more narrowly. First, we explicitly limited Thompson to the facts of the case, stating that “our decision is extremely narrow and only applies to theft of an automobile.” Id. at 1447 n. 6. Second, the Thompson case does not control Way’s case because Thompson was strip searched not at the time of booking, but rather when he entered the general county jail population, where he remained for five days. Id. at 1442 . While this additional factor alone will not justify a strip search, id., “[i]n determining the constitutionality of strip searches of arrestees, courts have distinguished between searches of detainees who were simply awaiting bail, and searches conducted on inmates admitted or about to be admitted to the general jail population,” Fuller v. M.G. Jewelry, 950 F.2d 1437, 1448 (9th Cir.1991). The majority bolsters its argument by pointing out that in Giles, 746 F.2d at 618 , and Kennedy v. Los Angeles Police Dep't, 901 F.2d 702, 716 (9th Cir.1990), implied overruling in part on other grounds recognized by Act Up!/Portland v. Bagley, 988 F.2d 868, 872 (9th Cir.1993), we pointed to charges involving drugs, contraband, and violence as the kind of offenses that might give rise to reasonable suspicion. However, our holdings in those cases considered the nature of the charge only in combination with other specific and individualized factors.

Departure from the standard of individualized reasonable suspicion in deference to the security concerns of prison officials, see Bell, 441 U.S. at 559 , 99 S.Ct. 1861 , is appropriate only when there is “sufficient justification for [the] blanket search policy,” Kennedy, 901 F.2d at 713 . We struck down a blanket policy similar to the Ventura County Sheriffs Department’s in Giles, 746 F.2d at 617 (citing Bell, 441 U.S. at 559 , 99 S.Ct. 1861 ), because no security concerns comparable to those in Bell had been demonstrated. Demonstration of legitimate security concerns is required because the Court in Bell “did not ... read out of the Constitution the provision of general application that a search be justified as reasonable under the circumstances.” Weber v. Dell, 804 F.2d 796, 800 (2nd Cir.1986). As the majority concludes, there is no documentation of security concerns in this case which are serious enough to justify a departure from the general rule requiring individualized reasonable suspicion. The facts of this case amply demonstrate the perils of such a blanket search policy, because all of the circumstances surrounding Way’s arrest and detention negate the conclusion that Way, a detainee who had no chance to secrete drugs, was to post bail shortly after her arrest, and who would never be mingled with the general jail population, was concealing contraband. At the time the search was performed, it was clearly established that absent a showing of serious security concerns tipping the balance in favor of the government interest, the Fourth Amendment required application of the standard of individualized reasonable suspicion.

*1166 II

While it is generally the ease that “[i]f the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct,” Harlow v. Fitzgerald, 457 U.S. 800, 818-19 , 102 S.Ct. 2727 , 73 L.Ed.2d 396 (1982), in measuring the “objective reasonableness” of the officer’s conduct we have looked beyond the existing body of case law to whether the officer relied on a state statute, regulation, or official policy that explicitly sanctioned the conduct in question, see Wilson v. Layne, 526 U.S. 603, 617 , 119 S.Ct. 1692 , 143 L.Ed.2d 818 (1999); Grossman v. City of Portland, 33 F.3d 1200, 1209 (9th Cir.1994). While reliance upon a statute does not render the officer’s conduct per se reasonable, Roska v. Peterson, 328 F.3d 1230, 1252 (10th Cir.2003), “the existence of a statute or ordinance authorizing particular conduct is a factor which militates in favor of the conclusion that a reasonable official would find that conduct constitutional,” because “police officers on the street are ordinarily entitled to rely on the assumption that the [legislature] ha[s] considered the views of legal counsel and concluded that the ordinance is a valid and constitutional exercise of authority,” Grossman, 33 F.3d at 1209 .

In this case, the Ventura County Sheriffs Department policy authorized the conduct in question. Officers Brooks and Hanson complied with that policy. In addition, California Penal Code § 4030(f) specifically exempts those arrested on misdemeanor “weapons, controlled substances or violence” charges from the general prohibition on strip and body cavity searches of persons arrested for misdemeanors. Because the policy and the state statute had not fallen into desuetude, Grossman, 33 F.3d at 1209 n. 19, nor were they “patently violative of fundamental constitutional principles,” id. at 1209 , it was objectively reasonable for officers Brooks and Hanson to rely on the policy and the state statute in performing the strip search on Way. I therefore concur with the majority in finding that the officers are entitled to qualified immunity.