It's accepted legal precedent that jail and prison inmates have fewer Fourth Amendment protections when incarcerated. But what few expectations of privacy they did retain seem extinguished by last week's Seventh Circuit decision.
The court ruled that mass strip searches, during which female inmates were forced to expose themselves, remove tampons and menstrual pads, and viewed by male and female guards, trainees, and civilians, did not fall under the Fourth Amendment. Thus ending, for now, a class action lawsuit filed by the inmates.
Being in prison is no picnic, but the facts of the search sound humiliating:
[A]pproximately 200 female inmates were rounded up early one morning by a tactical team in riot gear. Tightly handcuffed by guards who screamed obscenities at them, the women were taken to the gym, where they remained, handcuffed and standing, until the guards searched them. The women were not told what was happening or why. This mass strip search of female inmates was conducted solely for training purposes, but the training was not strictly necessary, as most cadets graduated without it.
The searches took place in a beauty salon and a bathroom off the gym. Because the beauty shop had mirrored walls, and the bathroom entry was open to the gym, the searches were visible to the people in the gym, including male and female cadets, correctional officers, and civilians.
During the searches, the women stood naked in groups of four to ten, so close to one another that their bodies were touching. One by one, they were told to raise their breasts, bend over, spread their buttocks to expose their vaginal and anal cavities, and cough. Menstruating inmates were forced to extract tampons from inside their bodies. The female correctional officers and cadets conducting the searches made derogatory comments and gestures about the women's bodies and odors, telling the women that they were "dirty b----es," "f---ing disgusting," "deserve to be in here," and "smell like death." Male correctional officers watched the women from the gym.
As invasive and unnecessary as the searches appear, a three-judge panel of the Seventh Circuit declined to examine them under the Fourth Amendment. "Applying the Fourth Amendment to all unwelcome observations of prisoners would eliminate the subjective component and create a sort of Eighth Amendment lite," according to Judge Frank Easterbrook. The inmates had also made Eighth Amendment claims, which a jury rejected.
Easterbrook and Judge Danial Manion relied on some Seventh Circuit precedent to draw the line at who was conducting the strip searches, rather than examining the inmates and searches themselves:
Plaintiffs allege a visual inspection, not a physical intrusion. They maintain that each inmate had to manipulate her own body but do not contend that the prison's staff touched any inmate. A prisoner's need to touch her own body does not differentiate this situation from that of Florence, which concluded that a visual inspection (visual on the guards' part) is reasonable even with respect to pretrial detainees.
The majority, however, acknowledged the conflicting rulings -- both within the circuit and out -- and seemed to invite the Supreme Court to have a say in the matter. "It has been 35 years since the Justices last considered the extent to which convicted prisoners have rights under the Fourth Amendment while still inside prison walls," Easterbrook noted. "For more than 20 years it has been established in this circuit that the Fourth Amendment does not apply to visual inspections of prisoners. It is best to leave the law of the circuit alone, unless and until the Justices suggest that it needs change."
District Court Judge John Lee, serving on the circuit, did not agree with Easterbrook's distinction based on the searcher rather than the searched or the search:
It seems odd, however, to make the question of whether a prisoner has a reasonable expectation of privacy under the Fourth Amendment in the integrity of his or her intimate body cavities dependent on who it is that does the probing or penetrating. After all, the applicability of the Fourth Amendment hinges on (1) whether an individual has an actual, subjective expectation of privacy in the subject of the search, and (2) whether that expectation is "one that society is prepared to recognize as reasonable." The focus of this inquiry is on an individual's expectation of privacy "in what was searched," not who did the searching. The manner in which a search is conducted is more appropriately addressed when assessing its reasonableness.
"The Fourth Amendment affords all people a base level protection against the most intrusive of searches by government officials," said the women's attorney, Ruth Brown. "This was, for the 200 women, degrading. This is what the Fourth Amendment is designed to protect, in our opinion." Brown says her clients will appeal to the full Seventh Circuit.