Strip Search Under Seizure

When 32-year -old Quincy Gibson was arrested in Williamson County in March 2008, it wasn’t just for a traffic charge. Though Gibson had originally been pulled over during a traffic stop for having an expired vehicle registration, he also had no driver’s license and marijuana in his vehicle – not to mention 25 prior arrests on record for offenses including assault, resisting arrest and delivery of a controlled substance.

All that information gave peace officers reasonable suspicion to perform a full contraband search once Gibson arrived at the Williamson County Jail. One strip search later, and Gibson was in much more trouble. Deputies found 20 grams of cocaine hidden in his rectum.

The case is a clear example of exactly why strip searches are a necessary procedure within county jails: had Gibson not been strip searched, the hidden contraband undoubtedly could have created safety and control problems for the jail staff.

But law enforcement experts in Texas are urging sheriffs and jail administrators to be systematic when it comes to determining which inmates should and should not be strip searched. That’s because federal courts across the country – including the Fifth Circuit Court, which covers Texas – are now addressing the issue of constitutional strip searches and are frequently ruling in favor of the plaintiffs, former inmates who say the deputies who searched them did so without cause or reasonable suspicion and therefore violated their Fourth Amendment rights.

One of those plaintiffs was Judith Haney, a 50-year-old San Francisco resident who traveled to Miami, Florida, to protest a November 2003 meeting of the Free Trade Area of the Americas. Thousands of other protestors joined her; Miami law enforcement officers arrested several hundred of those protestors on misdemeanor charges after the crowd failed to follow police orders to disperse. All the arrested women (but not the men) had their body cavities visually searched; in a statement to the Commission on Safety and Abuse in America’s Prisons, Haney said she believed the search she experienced was about “humiliation and control, not about safety —just as rape is about violence and not about sex.” She recounted that “after I removed all my clothes, the guard told me to turn around, bend all the way over and spread my cheeks… (which) exposed my genitalia and anus to a complete stranger, who had physical authority over me, so that she could visually inspect my body cavities. … The guard’s next set of instructions were to squat and then to hop like a bunny. … I didn’t do it to the guard’s liking, so I had to do it over several times.”

Haney eventually became the lead defendant in a class-action law suit in which Miami-Dade County eventually agreed to pay $6.25 million — a figure that included $4,555,000 to be split between the approximately 1,000 women who joined the law suit and had been improperly strip searched during the period from March 2000 - March 2005, as well as $1 million for attorneys fees. (The rest of the settlement was spent on costs associated with administration and other expenses; it was estimated that about 20,000 women may have qualified to be plaintiffs in the suit.)

The case from Miami-Dade County is not unique. Blanket strip search policies have proven costly for several counties and jurisdictions, where attorneys have approached the issue not on a case-bycase basis, but with class action lawsuits seeking to gain settlements for all alleged victims at one time.

“Attorneys are looking for a pattern of strip searching large groups of people,” said Steve Chalender, a law enforcement specialist with the Texas Association of Counties. Chalender spent the last couple months traveling the state to help educate jail administrators and staff about the legal battles faced by counties across the country. The class action suits have been taking place in certain parts of the country for some time now. The most costly was in New York City, which was ordered to pay $50 million in 2001 after attorneys sued the city on behalf of 60,000 plaintiffs who had been arrested for misdemeanor offenses between July 1996 and June 1997. At the time, the city’s policy was to strip search every person brought to the jails, regardless of their offense or whether officers believed they may be hiding contraband. Earlier individual lawsuits against the city had placed a high price tag on unconstitutional strip searches; one plaintiff had received $19,000 in compensatory damages, and four others in another case had received $25,000 each.

Other cities and counties held liable for their strip search policies have included York County in Pennsylvania, which was ordered to pay $3.3 million; Sacramento County, Calif., which agreed to pay $15 million to 4,000 inmates; Miami-Dade County in Florida, ordered to pay $6.25 million; the City of New Haven in Connecticut, ordered to pay $2.5 million; and Santa Fe County in New Mexico, which was ordered to pay $8.5 million.

And that’s not a complete list.

Margo Schlanger, a law professor at Washington University who has researched class action lawsuits related to strip searches, located 93 filed class action lawsuits for her study Jail Strip-Search Cases: Patterns and Participants, as well as hundreds of individual cases. “The class cases have mostly involved two different moments in jail procedures: strip searches prior to arraignment and strip searches after a release order is issued but prior to release,” Schlanger found. “In recent years, the number of strip-search class actions has grown; over the past three years, both new settlements and new cases have been filed just about every month.”

Attorneys have already brought the fight to two Texas counties, though those class action suits have yet to be settled. And make no mistake: There is a huge incentive for attorneys to continue the class action legal battles in new territories.

“If the court agrees that a lawsuit should proceed as a class action, a period of time is given for those who can prove they fit the class to file claims to participate in any judgment or settlement amount. Attorneys that represent the class on a contingent fee basis typically receive 30 - 40 percent of the judgment awarded, which can be millions of dollars,” Chalender said. “With thousands of inmates being booked into a typical mid-sized county jail annually, the number of plaintiffs can be immense, resulting in huge awards to the plaintiffs and their attorneys. There appear to be plaintiffs’ attorneys who are actively seeking suits involving strip search violations because of the huge fees they generate.”

The class action suits have created a heightened interest in county strip search policies. Law enforcement specialists at the Texas Association of Counties reviewed local court opinions and created a sample strip search policy that counties can use to ensure that jails comply with the Fifth Circuit court law of the land. The strip search policies are important for county sheriffs and jail administrators to consider and implement, since liability insurance companies such as the TAC Risk Management Pool must take the potential for large lawsuits and payouts into consideration when determining insurance premiums and coverage.

The sample policy can be downloaded via the TAC Web site at www.county.org/cms/field/law/resources.asp. It gives definitions for what constitutes a regular clothed “frisk” search — in which officers use hands and metal detecting devices to check collars, sleeves, cuffs, armpits, waistbands, pockets, legs, socks, shoes and the crotch area — versus an unclothed or “strip” search — in which a part of the body is exposed.

During a series of regional law enforcement workshops, some jailers and deputies expressed confusion over the terms, not realizing that a “strip search” did not have to involve removal of all clothing. In one pre-workshop survey, 45 percent of the attendees said it’s not a strip search if the person is still in their underwear; 21 percent said it’s not a strip search if a person has removed clothing for hygiene purposes; 32 percent said it’s not a strip search if a person has disrobed in front of a jailer for a clothing exchange; and 33 percent said it’s not a strip search if a person showers in front of a jailer during a clothing exchange. However, according to federal court opinions, all of those instances have been defined as strip searches. Determining when to ask an arrested individual to remove their shirt or pants should involve a decision- making process that should revolve around whether a deputy has “reasonable suspicion” that a person is carrying a weapon or another item that could jeopardize safety, Chalender said. According to the TAC model policy, “reasonable suspicion can be based on the behavior of the individual and also upon the charges on which the arrest is based. An unclothed search shall be conducted after the removal of clothing causing an individual to expose his or her body for inspection with or without underwear. The search includes a visual inspection of areas that cannot be thoroughly inspected using a clothed search. These areas include but are not limited to the breasts, genitals, buttocks and anus.” A cavity search goes farther and allows for the “instrument inspection of the anal or vaginal cavity.” Those searches require valid search warrants and must be performed by medical personnel. In order to help deputies determine whether “reasonable suspicion” exists, and also to show that deputies are not strip searching arrested individuals without cause, Navarro County has its jailers fill out a special form for every search, clothed or unclothed, said Chief Deputy Mike Cox. The form includes the arrestee’s name, whether an unclothed search was conducted, and a list of possible reasons why the unclothed search was necessary; jailers must check off at least one cause:

Cox said the forms alleviate any confusion over when a jailer should perform a strip search, and having them on hand to document when a strip search was not conducted protects the county from frivolous law suits, as well as a class-action suit. Other counties said they do not have a strip search policy or forms in place, but are now looking at implementing model practices. The reasonable suspicion causes are based on a decision-making tree promoted by the Texas Commission on Jail Standards, though the agency does not regulate county strip search policies and procedures. The TCJS recommendations are forwarded from the National Institute of Corrections, said TCJS Assistant Director Shannon Herklotz, who added that inspectors have attended national classes on strip searches so that they could council agencies with questions.

“Our standard on strip searches is a ‘should.’ We recommend that they have them, but it’s not a standard that is required,” Herklotz said. “We don’t have the authority to correct anything.”

Chalender also recommended that county jails begin utilizing tools such as the decision-making tree and the search forms that have been helpful in Navarro County. However, he stressed that the forms are mostly helpful for arrested individuals, rather than incarcerated inmates. The class action law suits have all stemmed from blanket policies that deal strip searching people arrested for minor offenses, rather than the strip searching of people sentenced to jail confinement by a judge.

The class action suits stem from court opinions on individual cases heard over the last 30 years. The Fifth Circuit Court of Appeals has ruled on several strip search law suits, dating back to 1985. In the earliest case, the county jail permitted strip searches for any arrestee, regardless of the severity of the charge; the jail back then conducted about 1,000 strip searches a month. Two women — one arrested for public intoxication and the other arrested for issuing a bad check after a routine traffic stop — sued the county, and one was awarded $15,000 in damages. The Fifth Circuit Court ruled that the Fourth Amendment protects against unreasonable search and seizures, and that it was unreasonable to strip search the women since they were minor offenders and because there was no reasonable suspicion that they might possess contraband. Later cases heard by the Fifth Circuit only upheld that opinion.

When viewed from a national perspective, the Fifth Circuit’s opinion on the matter is fairly moderate. Other federal courts have been much more concerned about protecting arrestee’s Fourth Amendment rights. For instance, other federal courts have defined contraband differently than most jails do, limiting the contraband that applies to justification for strip searches to only “any instrument of escape, weaponry or self-harm that is forbidden for possession in the institution,” Chalender said. “As a result, an unclothed search for an item such as a cigarette or chewing gum — which are items prohibited in most jails — would not be permitted under (those) courts’ definitions.” Federal courts have also ruled that a strip search is not justified just because an arrested individual is going to join the jail’s general population or intermingle with other inmates.

^ Back to top