U.S. Sixth Circuit - The FindLaw 6th Circuit Court of Appeals Opinion Summaries Blog

6th Cir. Allows Ohio Inmate Strip Search Suit to Proceed

In 2009, Tynisa Williams was arrested, strip-searched, and deloused (allegedly in front of two other inmates) before being put into jail in Cleveland and released later that day. Her crime? Driving with a suspended license. There was no individualized suspicion that she was carrying anything dangerous, nor that she had lice.

"Doesn't this all sound familiar?" you're saying, scratching your chin. Yes, in fact: The Supreme Court dealt with a similar situation in Florence v. Board of Chosen Freeholders of County of Burlington. In that case, Burlington County had a policy of strip-searching every person processed into county jail, regardless of the severity of their crime. The Supreme Court upheld this practice. So why did the Sixth Circuit allow Tynisa Williams' complaint to proceed?

These Aren't So Similar

After Florence came out in 2011, the district court in this case dismissed Williams' complaint and didn't grant her leave to file a second amended complaint, which the court said would be futile, anyway, in light of Florence.

The Sixth Circuit disagreed, finding enough factual differences to conclude Florence didn't apply, using the three "Ds" of appellate advocacy: distinguish, distinguish, distinguish. So what's different? In Florence, the plaintiff was subjected to a visual strip search and had to shower with a delousing agent. So the Sixth Circuit agreed with the district court that Florence forecloses the "you need individualized suspicion to strip search" route, because you don't.

But, said the Sixth Circuit, the search still has to be conducted in a reasonable manner: "Florence does not stand for the proposition that every search conducted pursuant to a jail's uniformly applicable search policy is impregnable from attack on that basis alone."

'The Hose Treatment'

In this case, inmates essentially have delousing spray (which Cleveland jail officials allegedly called "the hose treatment") thrown onto them, hitting their genitals and their exposed anus. And this delousing and search is conducted in the presence of other inmates -- making the search "humiliating." It should go without saying, but humiliation isn't a permissible justification for a strip search.

The Sixth Circuit found a constitutional violation because Cleveland could have used other, less intrusive means to accomplish the same goal, like letting the inmates shower themselves with the delousing agent. Cleveland protested that inmates might not actually use the agent, or use it the right way, but the record contained no evidence of that. Even so, "there is no question that permitting self-application of the delousing solution would be less humiliating and invasive than the 'hose treatment.'"

And just because something is efficient doesn't make it constitutional: it "would be significantly more denigrating to detainees if they were pressure-washed by officers en masse instead of first being given an opportunity to shower themselves."

While the court seemed disinclined to believe the jail, on a motion to dismiss, the plaintiff's facts are taken as true. Really, the discovery process needs to happen so we have some more facts to go on.

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