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Hammond v Kates, DC, Amicus Brief - HRDC, transgender abuse discrimination, 2014

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USCA Case #13-5212

Document #1485371

Filed: 03/25/2014

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[ORAL ARGUMENT NOT YET SCHEDULED]
______________________________

Nos. 13-5212 & 13-5213
______________________________

IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
______________________________

PATTI HAMMOND SHAW,
Plaintiff-Appellee,
v.
BENJAMIN E. KATES, et al.,
Defendants-Appellants.
______________________________

On Appeal from the United States District Court
for the District of Columbia (No. 12-cv-538 (ESH))
______________________________

BRIEF OF THE AMERICAN CIVIL LIBERTIES UNION
AND THE AMERICAN CIVIL LIBERTIES UNION OF
THE NATION’S CAPITAL, ET AL., AS AMICI CURIAE
______________________________

	
  

Chase Strangio
LGBT & AIDS Project
American Civil Liberties Union
125 Broad Street
New York, NY 10004
T: 212-284-7320
F: 212-549-2650
E: cstrangio@aclu.org

Arthur B. Spitzer
Jennifer Wedekind
American Civil Liberties Union
of the Nation’s Capital
4301 Connecticut Ave., N.W., Suite 434
Washington, D.C. 20008
T: 202-457-0800
F: 202-457-0805
E: artspitzer@aclu-nca.org
Counsel for Amici Curiae

March 25, 2014
	
  

	
  

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CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES
Pursuant to D.C. Circuit Rule 28(a)(1), undersigned counsel certifies as
follows:
A.

Parties and Amici

Patti Hammond Shaw is the appellee here. Defendants Merrender Quicksey,
Benjamin E. Kates, and Troy Musgrove are appellants here. The United States of
America, Steve Conboy, and the District of Columbia are also defendants below.
There are no other amici.
B.

Rulings Under Review

Appellants appeal the denial of their motions to dismiss by the district
court’s memorandum opinion and order entered on May 13, 2013. The opinion is
reported at 944 F. Supp. 2d 43 (D.C.C. 2013).
C.

Related Cases

Counsel for amici are not aware of any related cases.
/s/ Arthur B. Spitzer
Arthur B. Spitzer
Counsel for Amicus Curiae

	
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CORPORATE DISCLOSURE STATEMENT
Pursuant to D.C. Circuit Rule 26.1 and Federal Rule of Appellate Procedure
26.1, amici American Civil Liberties Union, American Civil Liberties Union of the
Nation’s Capital, D.C. Trans Coalition, Human Rights Defense Center, Just
Detention International, Lambda Legal Defense and Education Fund, National
Center for Lesbian Rights, National Center for Transgender Equality, National
Police Accountability Project, Streetwise and Safe, Sylvia Rivera Law Project, and
Transgender Law Center state that they are nonprofit membership organizations,
that they have no parent or subsidiary corporations, and that they do not issue
stock.

/s/ Arthur B. Spitzer
Arthur B. Spitzer
Counsel for Amici Curiae

	
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CERTIFICATE PURSUANT TO FED. R. APP. P. 29(c)(5)
Undersigned counsel for amici curiae hereby certifies:
(A) No counsel for a party authored this brief in whole or in part;
(B) No party or party’s counsel contributed money that was intended to fund
preparing or submitting this brief; and
(C) No person other than the amicus curiae, its members, or its counsel,
contributed money that was intended to fund preparing or submitting this brief
/s/ Arthur B. Spitzer
Arthur B. Spitzer
Counsel for Amici Curiae

	
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TABLE OF CONTENTS
INTEREST OF AMICI ............................................................................................. 1	
  
INTRODUCTION AND SUMMARY OF ARGUMENT ....................................... 2	
  
ARGUMENT............................................................................................................ 6	
  
I.	
  

The Court Should Hold That Plaintiff’s Constitutional Rights Were
Violated .................................................................................................. 6	
  

II.	
   Appellants Quicksey And Kates Subjected Ms. Shaw To
Unconstitutional Conditions Of Confinement ........................................ 9	
  
A. Ms. Shaw was held in conditions posing a substantial risk of
serious harm .................................................................................. 11	
  
B.	
   Quicksey and Kates were deliberately indifferent to the risk of
serious harm to Ms. Shaw ............................................................. 13	
  
III.	
   Appellants Musgrove And Kates Violated Ms. Shaw’s Fourth
Amendment Rights ............................................................................... 16	
  
A.	
   The cross-gender searches of Ms. Shaw were unreasonable in
scope ............................................................................................. 19	
  
B.	
   The cross-gender searches of Ms. Shaw were also unreasonable
because they were accompanied by verbal abuse and
harassment..................................................................................... 20	
  
C.	
   The lack of exigent circumstances justifying the invasive crossgender searches made the searches unreasonable. ........................ 22	
  
D.	
   The public location of the cross-gender searches made them
unreasonable. ................................................................................ 24	
  
IV.	
  	
  	
  Appellants Quicksey And Kates Violated Ms. Shaw’s Fourth And
Fifth Amendment Rights By Failing To Train Subordinate Officers
Under Their Supervision ...................................................................... 25	
  
CONCLUSION ...................................................................................................... 29	
  
	
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*

TABLE OF AUTHORITIES
Cases 	
  

Amaechi v. West,
237 F.3d 356 (4th Cir. 2001) ................................................................... 20, 23, 24
Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) ............................................................... 26
Bell v. Wolfish,
441 U.S. 520 (1979) ............................................................................ 9, 10, 17, 24
BNSF Ry. Co. v. Dep’t of Transp.,
566 F.3d 200 (D.C. Cir. 2009) ............................................................................ 24
Bonitz v. Fair,
804 F.2d 164 (1st Cir. 1986) ............................................................................... 23
Boss v. Morgan County, Mo.,
No. 08-cv-04195, 2009 WL 3401715 (W.D. Mo., Oct. 20, 2009)..................... 13
Bray v. Planned Parenthood Columbia-Willamette Inc.,
No. 12–4476, 2014 WL 1099107 (6th Cir. Mar. 21, 2014) ................................ 7
Brogsdale v. Barry,
926 F.2d 1184 (D.C. Cir. 1991) ............................................................................ 9
Brown v. Short,
729 F. Supp. 2d 125 (D.D.C. 2010) .................................................................... 24
Byrd v. Maricopa County Sheriff’s Dep’t,
629 F.3d 1135 (9th Cir. 2011) ....................................................................... 19, 20
Caldwell v. District of Columbia,
201 F. Supp. 2d 27 (D.D.C. 2001) ...................................................................... 11
Calhoun v. DeTella,
319 F.3d 936 (7th Cir. 2003) ............................................................................... 21
Campbell v. Miller,
499 F.3d 711 (7th Cir. 2007) ............................................................................... 24
	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
   	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
   	
  

*

Asterisks in the left margin indicate authorities chiefly relied upon.
	
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Camreta v. Greene,
131 S. Ct. 2020 (2011) .......................................................................................... 7
Canedy v. Boardman,
16 F.3d 183 (7th Cir. 1994) ................................................................................. 23
Chandler v. District of Columbia Dept. of Corr.,
145 F.3d 1355 (D.C. Cir. 1998) .......................................................................... 12
Cornwell v. Dahlberg,
963 F.2d 912 (6th Cir. 1992) ............................................................................... 23
Elkins v. D.C.,
690 F.3d 554 (D.C. Cir. 2012) ............................................................................ 27
Elwell v. Byers,
699 F.3d 1208 (10th Cir. 2012) ............................................................................. 7
Farkarlun v. Hanning,
855 F.Supp.2d 906 (D.Minn. 2012) .................................................................... 18
*Farmer v. Brennan, 511 U.S. 825 (1994) ....................................... 2, 10, 11, 13, 14
Farmer v. Perrill,
288 F.3d 1254 (10th Cir. 2002) ........................................................................... 25
Fortner v. Thomas,
983 F.2d. 1024 (11th Cir. 1993) .......................................................................... 12
Goff v. Nix,
803 F.2d 358 (8th Cir. 1986) ......................................................................... 21, 22
Green v. Hooks,
No. 13-cv-17, 2013 WL 4647493 (S.D. Ga. Aug. 29, 2013) ................................ 8
Grummett v. Rushen,
779 F.2d 491 (9th Cir. 1985) .............................................................................. 21
Hardy v. District of Columbia,
601 F. Supp. 2d 182 (D.D.C. 2009) ............................................................. 10, 13
Hartman v. Moore,
547 U.S. 250 (2006) ............................................................................................ 14
	
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Hayes v. Marriott,
70 F.3d 1144 (10th Cir. 1995) ............................................................................. 23
Haynesworth v. Miller,
820 F.2d 1245 (D.C. Cir. 1987) .......................................................................... 14
Hope v. Pelzer,
536 U.S. 730 (2002) ............................................................................................ 13
Hostetler v. Green,
323 F. Appx 653 (10th Cir. 2009) ....................................................................... 12
Hudson v. McMillian,
503 U.S. 1 (1992) ................................................................................................ 12
Hutchins v. McDaniels,
512 F.3d 193 (5th Cir. 2007) ......................................................................... 23, 24
*Int’l Action Ctr. v. United States,
365 F.3d 20 (D.C. Cir. 2004) .................................................................. 14, 27, 28
Johnson v. City of Cincinnati,
39 F. Supp. 2d 1013 (S.D. Ohio 1999)............................................................... 27
Johnson v. Gov’t of the District of Columbia,
734 F.3d 1194 (D.C. Cir. 2013) ...................................................................... 7, 26
Jones v. Horne,
634 F.3d 588 (D.C. Cir. 2011) ............................................................................ 10
Jordan v. Gardner,
986 F.2d 1521 (9th Cir. 1993) ............................................................................. 20
Lee v. Downs,
641 F.2d 1117 (4th Cir. 1981) ............................................................................. 12
Lee v. Eller,
No. 13-cv-00087, 2013 WL 4052878 (S.D. Ohio, Aug. 12, 2013)....................... 8
Mays v. Springborn,
575 F.3d 643 (7th Cir. 2009) ................................................................... 21, 22, 25

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Meriwether v. Faulkner,
821 F.2d 408 (7th Cir. 1987) ............................................................................... 25
OSU Student Alliance v. Ray,
699 F.3d 1053 (9th Cir. 2012) ............................................................................ 26
Pearson v. Callahan,
555 U.S. 223 (2009) .............................................................................................. 6
R.G. v. Koller,
415 F. Supp. 2d 1129 (D. Haw. 2006) ................................................................ 12
Ramos v. Lamm,
639 F.2d 559 (10th Cir.1980) .............................................................................. 12
Saucier v. Katz,
533 U.S. 194 (2001) .............................................................................................. 6
Schmidt v. City of Bella Villa,
557 F.3d 564 (8th Cir. 2009) ............................................................................... 18
Tate v. Lynch,
No. 13-cv-3060, 2013 WL 2896885 (C.D. Ill., June 13, 2013) ............................ 9
Vaughan v. Ricketts,
859 F.2d 736 (9th Cir. 1988) ............................................................................... 25
Wilson v. Layne,
526 U.S. 603 (1999) .............................................................................................. 7
Statutes 	
  
42 U.S.C. § 15601 .................................................................................................... 3
Regulations 	
  
77 Fed. Reg. 37105 (June 20, 2012) ......................................................................... 3
Other Authorities 	
  
Amnesty International, Stonewalled: Police abuse and misconduct against
lesbian, gay, bisexual and transgender people in the U.S. (Sept. 2005),
available at

	
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http://www.amnesty.org/en/library/asset/AMR51/122/2005/en/2200113dd4bd-11dd-8a23-d58a49c0d652/amr511222005en.pdf ........................................ 5
Jamie M. Grant, Ph.D., et al., Injustice at Every Turn: A Report of the National
Transgender Discrimination Survey (2011), available at
http://www.thetaskforce.org/downloads/reports/reports/ntds_full.pdf ................. 8
Metropolitan Police Department, Standard Operating Procedures for Holding
Facilities § III.E.5 (May 20, 2003) ...................................................................... 15
MPD General Order: Handling Interactions with Transgender Individuals
(October 16, 2007), available at https://go.mpdconline.com/GO/3925000.pdf. . 28
National Prison Rape Elimination Commission Report, available at
https://www.ncjrs.gov/pdffiles1/226680.pdf .................................................. 3, 28
United States Marshals Service Policy Directive No. 99-25 (1999) ...................... 22
USMS Policy Directive No. 99-25 (1999) ............................................................. 19
Valerie Jenness, Ph.D., The California Department of Corrections and
Rehabilitation Wardens’ Meeting (April 8, 2009), available at
http://ucicorrections.seweb.uci.edu/files/2013/06/Transgender-Inmates-inCAs-Prisons-An-Empirical-Study-of-a-Vulnerable-Population.pdf (last
visited Feb. 27, 2014). ........................................................................................... 8

	
  
	
  

	
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Nos. 13-5212 & 13-5213
______________________________

IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
______________________________

PATTI HAMMOND SHAW,
Plaintiff-Appellee,
v.
BENJAMIN E. KATES, et al.,
Defendants-Appellants.
______________________________

BRIEF OF THE AMERICAN CIVIL LIBERTIES UNION
AND THE AMERICAN CIVIL LIBERTIES UNION
OF THE NATION’S CAPITAL, ET AL., AS AMICI CURIAE
______________________________

INTEREST OF AMICI
Amici are civil and human rights groups, and public interest and legal service
organizations, committed to ending discrimination and violence against
transgender individuals, and police abuse and violence against all vulnerable
populations in prison, jails, and lock-ups. Amici have a vital interest in ensuring
that the Constitution’s guarantees of due process and freedom from cruel and
unusual punishment apply to all persons regardless of gender identity or
incarceration and file this brief to address the particular vulnerability of
transgender women in custody and the critical importance of the constitutional
interests raised by this case.
Amici include the following organizations: the American Civil Liberties
Union, the American Civil Liberties Union of the Nation’s Capital, the D.C. Trans
	
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Coalition, the Human Rights Defense Center, Just Detention International, Lambda
Legal Defense and Education Fund, the National Center for Lesbian Rights, the
National Center for Transgender Equality, the National Police Accountability
Project, Streetwise and Safe, the Sylvia Rivera Law Project, and the Transgender
Law Center. Descriptions of the amici are set forth in the Addendum to this brief.
INTRODUCTION AND SUMMARY OF ARGUMENT
Twenty years ago, the Supreme Court held in Farmer v. Brennan, 511 U.S.
825 (1994), that an official’s deliberate indifference to a substantial risk of serious
harm to an individual in custody violates the Eighth Amendment to the
Constitution. That case concerned the liability of prison officials who placed Dee
Farmer, a young transgender woman, in the general population of a men’s federal
prison where she was sexually assaulted. In the twenty years since the Court
issued its landmark ruling in her case, the opinion has been cited in more than
30,000 court decisions and thousands of other briefs and legal treatises. In addition
to establishing the contemporary standard for Eighth Amendment “failure to
protect” claims, Farmer highlighted the extreme vulnerability of women,
transgender women in particular, in men’s correctional settings.
Since Farmer, there has been a coordinated effort among political leaders,
correctional officials and advocates to end sexual violence in custodial settings. In
2003, Congress passed and President Bush signed the Prison Rape Elimination Act
	
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(PREA), calling for an end to sexual abuse, including sexual harassment, and
convening the National Prison Rape Elimination Commission (NPREC) to study
the problem. 42 U.S.C. §§ 15601 et seq. In 2009, the NPREC released a 250-page
report detailing the epidemic of sexual violence in custody. Recommending an end
to placement decisions based on assigned sex at birth, the report emphasized that
“most male-to-female transgender individuals who are incarcerated are placed in
men’s prisons, even if they have undergone surgery or hormone therapies to
develop overtly feminine traits[, and t]heir obvious gender nonconformity puts
them at extremely high risk for abuse.”1
Informed by the NPREC report and nine years of study and commentary by
experts, in 2012 the Department of Justice (DOJ) released the final PREA
regulations, which include comprehensive requirements for local, state and federal
prisons, jails, and lock-up facilities. 77 Fed. Reg. 37105 (June 20, 2012).
Consistent with the Court’s reasoning in Farmer and the near-unanimous reports at
each stage of study and implementation of PREA, the particular vulnerabilities of
women and transgender individuals are prominently noted throughout the
regulations. It is in this post-Farmer, PREA implementation context that the
instant case comes before this Court.
	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
   	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
   	
  
1

National Prison Rape Elimination Commission Report at 74, available at
https://www.ncjrs.gov/pdffiles1/226680.pdf.
	
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This case concerns the treatment of Ms. Patti Hammond Shaw on June 18,
2009, December 10, 2009, and June 26, 2012, while in the custody of the
Metropolitan Police Department (MPD) and United States Marshals Service
(USMS). Joint Appendix (JA) 19, 28, 37. At all times relevant to this case, Ms.
Shaw identified as female, had valid, government-issued identification documents
reflecting her female identity, and had breasts and a vagina.2 JA 16, 20, 33-34. She
also repeatedly told officers that she was female and requested to be moved from
view of and physical proximity to male detainees. JA 24, 30, 37. Any one of these
factors would have made her vulnerable; nonetheless, Appellants and currently
unknown MPD and USMS officers under the supervision of Appellants Quicksey
and Kates placed Ms. Shaw in the men’s housing areas of the Central Cellblock
and the cellblock at Superior Court. This placement led to her being forced to
urinate in front of male detainees who masturbated and threw what appeared to be
semen — a “thick liquid” — into her cell. Male officers, including Appellant
Musgrove, also subjected Ms. Shaw to intrusive searches. JA 29-30, 33-34, 38.
When Ms. Shaw was arrested for the first time, prior to 2009, and assigned a
Police Department Identification Number (PDID), she was identified in the MPD
system as male. JA 43. All individuals arrested in the District of Columbia are
	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
   	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
   	
  
2

Amici highlight the fact that Ms. Shaw had a vagina to emphasize the obviousness
of the risk of harm to her, but note that constitutional protections should not
depend on the composition of a detainee’s body.
	
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assigned a unique six-digit permanent identification number at the time of their
first arrest. An individual keeps the same PDID number throughout all subsequent
involvement in the D.C. criminal justice system. Appellants used the male gender
associated with the PDID when making subsequent housing and search decisions
for Ms. Shaw and ignored Ms. Shaw’s statements, legal documents and physical
appearance affirming that she is female.
Although Appellants claim that the risk of harm from placing Ms. Shaw in
the men’s detention areas of Central Cellblock and Superior Court was not obvious
or predictable,3 in fact, a 2005 Amnesty International report highlights a strikingly
similar assault against Ms. Shaw in 2003 when she was housed in the men’s
cellblock of the D.C. Superior Court. The report states that Ms. Shaw was placed
in the male cellblock at Superior Court because authorities claimed they could not
change her gender in the court’s criminal record system. This placement was made
despite the fact she had government-issued identification that reflected her correct
gender of female. In the cellblock, male detainees harassed Ms. Shaw, exposed
themselves, masturbated and sexually assaulted her.4 There is clearly a pattern
	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
   	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
   	
  
3

See generally Brief for Federal Appellants (hereafter “Fed. Br.”) at 25-27; Brief
for Appellant Merrender Quicksey (hereafter “Quicksey Br.”) at 34-35.
4

Amnesty International, Stonewalled: Police abuse and misconduct against
lesbian, gay, bisexual and transgender people in the U.S. 91 (Sept. 2005), available
at http://www.amnesty.org/en/library/asset/AMR51/122/2005/en/2200113d-d4bd11dd-8a23-d58a49c0d652/amr511222005en.pdf.
	
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whereby MPD and USMS officials place Ms. Shaw in jeopardy by housing her
with men and claiming innocence because there is no procedure for changing the
gender assigned to a person’s PDID number.
The District Court rightly denied Appellants’ claim of qualified immunity,
finding that Ms. Shaw alleged violations of her clearly established constitutional
rights. Though amici agree with Plaintiff and the District Court that these rights
were clearly established, this brief focuses solely on the nature of those rights.
This case presents critical constitutional questions about the obligations of
supervisory and subordinate officers when housing and searching particularly
vulnerable detainees. Amici therefore urge the court not only to find that Ms. Shaw
has alleged violations of her Fifth and Fourth Amendment rights, but also to do so
prior to considering whether these rights were clearly established.
ARGUMENT
I.

The Court Should Hold That Plaintiff’s Constitutional Rights
Were Violated

Although the Supreme Court ruled in Pearson v. Callahan, 555 U.S. 223,
236 (2009), that judges have discretion to decide which prong of the qualified
immunity analysis should be addressed first, deciding the constitutional question
first ensures that officials who violate constitutional rights will not perpetually be
shielded by qualified immunity should the court also find that the right was not
clearly established. See Saucier v. Katz, 533 U.S. 194, 207-08 (2001). If courts
	
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decline to decide the constitutional question every time it is presented, then
officials will never receive notice of what conduct is unlawful, individuals will not
be able to deter officials from violating their rights, and the advancement of
constitutional rights will be hindered. See, e.g., Elwell v. Byers, 699 F.3d 1208,
1213 (10th Cir. 2012) (noting that failure to resolve the constitutional questions
can result in officials repeating the challenged and perhaps unconstitutional
practice over and over). Deciding first whether a constitutional right was violated,
rather than whether the right was clearly established, “promotes clarity in the legal
standards for official conduct, to the benefit of both the officers and the general
public.” Wilson v. Layne, 526 U.S. 603, 609 (1999). After Pearson, “it remains
true that following the two-step sequence — defining constitutional rights and only
then conferring immunity — is sometimes beneficial to clarify the legal standards
governing public officials.” Camreta v. Greene, 131 S. Ct. 2020, 2032 (2011). See
also Johnson v. Gov't of the District of Columbia, 734 F.3d 1194, 1202 (D.C. Cir.
2013) (“The Supreme Court has made clear that courts may address the two stages
of the qualified immunity analysis in either order.”); Bray v. Planned Parenthood
Columbia-Willamette Inc.,	
  No. 12–4476, 2014 WL 1099107 (6th Cir. Mar. 21,
2014) (following Camreta and addressing merits of Fourth Amendment claim
before conferring immunity).

	
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There are urgent concerns weighing in favor of deciding the constitutional
questions first in this case. Physical and sexual abuse is a serious problem in our
nation’s prisons, jails, and lock-up facilities. For women, particularly transgender
women in men’s facilities, assault is common. According to the recent National
Transgender Discrimination Survey, of the 6,450 transgender respondents who had
been incarcerated, 37% reported being harassed by officers or staff, 16% reported
physical assault by other inmates or staff, and 15% reported sexual assault by other
inmates or staff.5 A study of California prisons found that 59% of transgender
respondents reported sexual assault as compared with 4.4% of non-transgender
respondents.6
Courts are also increasingly confronted with constitutional claims by
transgender people who have been assaulted in custody. See, e.g., Green v. Hooks,
No. 13-cv-17, 2013 WL 4647493 (S.D. Ga. Aug. 29, 2013) (claim brought by
transgender woman in men’s facility after assault by other inmates); Lee v. Eller,
No. 13-cv-00087, 2013 WL 4052878 (S.D. Ohio, Aug. 12, 2013) (same); Tate v.
	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
   	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
   	
  
5

Jamie M. Grant, Ph.D., et al., Injustice at Every Turn: A Report of the National
Transgender Discrimination Survey 166-67 (2011), available at
http://www.thetaskforce.org/downloads/reports/reports/ntds_full.pdf.
6

Valerie Jenness, Ph.D., The California Department of Corrections and
Rehabilitation Wardens’ Meeting at 34 (April 8, 2009), available at
http://ucicorrections.seweb.uci.edu/files/2013/06/Transgender-Inmates-in-CAsPrisons-An-Empirical-Study-of-a-Vulnerable-Population.pdf (last visited Feb. 27,
2014).
	
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Lynch, No. 13-cv-3060, 2013 WL 2896885 (C.D. Ill., June 13, 2013) (same). Ms.
Shaw herself has already experienced at least four incidents of violence while in
MPD and USMS custody, the three detailed in the complaint and the one
documented by Amnesty International in 2003.
Though amici agree with Plaintiff that the law is clearly established, the
important Fifth and Fourth Amendment questions raised here should be addressed
first by the Court. Should the Court ultimately confer immunity, the avoidance of
these recurring questions would “frustrate ‘the development of constitutional
precedent’ and the promotion of law-abiding behavior.” Camreta, 131 S. Ct. at
2030-31 (quoting Pearson, 555 U.S. at 237).
II.

Appellants Quicksey And Kates Subjected Ms. Shaw To
Unconstitutional Conditions Of Confinement

At all relevant times, Ms. Shaw was a pretrial detainee. As a pretrial
detainee, her claim is analyzed under the Due Process Clause of the Fifth
Amendment, Bell v. Wolfish, 441 U.S. 520, 535 (1979), and she has a lower
threshold to establish the violation of her rights than convicted detainees, who must
assert conditions of confinement claims under the Eighth Amendment. See
Brogsdale v. Barry, 926 F.2d 1184, 1187 n.4 (D.C. Cir. 1991) (citations omitted):
[T]he threshold for establishing a constitutional violation is clearly
lower for the pretrial detainees. For the latter group, not yet convicted
of any crime, the question is whether prison conditions “amount to
punishment of the detainee.” . . . For convicted prisoners, the question
is not whether prison conditions amount to punishment — for convicts
	
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plainly may be punished — but rather whether the conditions “deprive
inmates of the minimal civilized measure of life’s necessities.”
See also Hardy v. District of Columbia, 601 F. Supp. 2d 182, 189 (D.D.C. 2009)
(same); see also Jones v. Horne, 634 F.3d 588, 597 (D.C. Cir. 2011)	
  (applying the
Bell v. Wolfish test).
Nevertheless, amici’s analysis below applies the Eighth Amendment
deliberate indifference test introduced by the Supreme Court in Farmer v.
Brennan, consistent with the District Court’s opinion. Amici do not suggest that
the Eighth Amendment and the Fifth Amendment standards are coextensive, but
rather that because Ms. Shaw establishes a clear violation of the more stringent
analysis for claims brought by convicted prisoners, she has a fortiori established a
constitutional violation under the less stringent standard applied to pretrial
detainees. Appellants have cited no case suggesting that a pretrial detainee who
establishes a violation of the Farmer test has not met the Bell test.
A convicted prisoner’s rights are violated if she is “incarcerated under
conditions posing a substantial risk of serious harm” and the detaining official’s
“state of mind is one of ‘deliberate indifference’ to inmate health or safety.”
Farmer, 511 U.S. at 834. A prisoner must prove that (1) objectively the conditions
of confinement posed a substantially serious risk of harm and (2) subjectively,
officials acted with deliberate indifference in allowing or causing such risk to
occur. Id.
	
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Ms. Shaw was held in conditions posing a substantial risk of
serious harm

Ms. Shaw satisfies the objective prong of the deliberate indifference test
because she was “incarcerated under conditions posing a substantial risk of serious
harm.” Farmer, 511 U.S. at 834.
The Court must consider the totality of Ms. Shaw’s circumstances. See
Caldwell v. District of Columbia, 201 F. Supp. 2d 27, 34 (D.D.C. 2001) (affirming
jury verdict where “Plaintiff testified to a variety of conditions that, taken together,
resulted in an unconstitutional situation…”) (emphasis added). Placing Ms. Shaw
in the men’s area of Central Cellblock and then in a holding cell at Superior Court
with male detainees posed an objectively serious risk of harm. JA 23-25, 29-31,
33-36, 38-40, 41-42. MPD and USMS officers, supervised by Appellants
Quicksey and Kates, placed her within sight, sound, and at times contact, of male
detainees. She was subjected to sexual harassment, threats of physical and sexual
violence, and psychological trauma. Ms. Shaw was forced to reveal her breasts to
detainees, urinate in front of male detainees who masturbated when they saw her
vagina, and undergo public strip searches by male officers. Some detainees groped
her, and others threw what appeared to be semen at her. JA 29-30, 33-34, 38.
Courts are clear that a detainee held in unsafe conditions need not suffer an
actual assault before her constitutional rights are violated. This Court has found
incidents short of assault or rape to constitute serious harm. See Chandler v.
	
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District of Columbia Dept. of Corr., 145 F.3d 1355, 1360 (D.C. Cir. 1998) (noting
that “verbal threats, without more, may be sufficient to state a cause of action
under the Eighth Amendment”). Threat or coercion is clearly sufficient to a state a
claim. See Hudson v. McMillian, 503 U.S. 1, 6-7 (1992); see also Hostetler v.
Green, 323 F. Appx 653, 659 (10th Cir. 2009) (“an inmate has an Eighth
Amendment right to be protected against prison guards taking actions that are
deliberately indifferent to the substantial risk of sexual assault by fellow
prisoners”); Ramos v. Lamm, 639 F.2d 559, 572 (10th Cir. 1980) (“[A]n inmate
does have a right to be reasonably protected from constant threats of violence and
sexual assaults from other inmates.”); R.G. v. Koller, 415 F. Supp. 2d 1129, 1157
(D. Haw. 2006) (facility was physically and psychologically unsafe for LGBT
youth, who was teased and threatened with sexual assault). Courts have also held
that forced exposure of one’s genitals is not reasonable and is particularly
problematic where a woman is forced to reveal her vagina and breasts to male
prisoners and guards. See, e.g., Lee v. Downs, 641 F.2d 1117, 1119 (4th Cir. 1981)
(“Most people … have a special sense of privacy in their genitals, and involuntary
exposure of them in the presence of people of the other sex may be especially
demeaning and humiliating…. [T]hat sort of degradation is not to be visited upon
those confined in our prisons.”); Fortner v. Thomas, 983 F.2d. 1024, 1030 (11th
Cir. 1993) (quoting Lee v. Downs and joining other circuits in recognizing a
	
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prisoner’s constitutional right to bodily privacy); Boss v. Morgan County, Mo., No.
08-cv-04195, 2009 WL 3401715 at *5 (W.D. Mo., Oct. 20, 2009) (officers denied
qualified immunity where “an inmate using the toilet” was exposed “to law
enforcement personnel, jailers, cafeteria workers, and inmates of the opposite
sex”).
B.

Quicksey and Kates were deliberately indifferent to the risk
of serious harm to Ms. Shaw

With respect to the subjective component of the constitutional test, Ms.
Shaw has credibly pleaded that Quicksey and Kates acted with deliberate
indifference to the risk that she would be harmed.
A prison official can be found liable under the Eighth Amendment if the
official “knows of and disregards an excessive risk to inmate health or safety…”
Farmer, 511 U.S. at 837. Such knowledge may be inferred where the risk of harm
is obvious. Id at 842 (“Whether a prison official had the requisite knowledge of a
substantial risk is a question of fact … and a factfinder may conclude that a prison
official knew of a substantial risk from the very fact that the risk was obvious.”);
Hope v. Pelzer, 536 U.S. 730, 738 (2002) (“We may infer the existence of this
subjective state of mind from the fact that the risk of harm is obvious.”); Hardy,
601 F. Supp.2d at 189-190 (“In appropriate situations, subjective knowledge can
be inferred from the obviousness of the risk.”) (internal citation omitted). A
subjective approach to deliberate indifference does not require a prisoner seeking
	
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“a remedy for unsafe conditions [to] await a tragic event [such as an] actual assault
before obtaining relief.” Farmer, 511 U.S. at 845 (alternations in original).
As discussed more fully in section IV below, supervisors, like Quicksey and
Kates, “may be held liable in damages for constitutional wrongs engendered by
[their] failure to supervise or train subordinates adequately.” Haynesworth v.
Miller, 820 F.2d 1245, 1259 (D.C. Cir. 1987), abrogated on other grounds by
Hartman v. Moore, 547 U.S. 250 (2006). To be sure, “a showing of mere
negligence is insufficient to state a claim of supervisory liability.” Int’l Action Ctr.
v. United States, 365 F.3d 20, 28 (D.C. Cir. 2004). However, liability will attach
where supervisors have been deliberately indifferent, or “know about the conduct
and facilitate it, approve it, condone it, or turn a blind eye for fear of what they
might see.” Id.
The risk of harm posed by placing Ms. Shaw in the men’s area of a cellblock or directly in a bullpen with men, transporting her chained to men and
having her searched by male guards, relying solely on the information from her
PDID number is obvious. Where confronted with conflicting gender information
about a detainee, there may be circumstances in which the question of where to
safely house the individual is complicated. This is not such a case. In all three
instances that form the basis of her complaint here, when Ms. Shaw entered MPD
and USMS custody she was female: she expressed a female gender identity, she
	
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presented government-issued identification that classified her as female, and she
repeatedly informed officers that she was female and requested to be moved from
view of and physical proximity to male detainees. JA 16, 19-20, 24, 30, 37.
Additionally, she had breasts and a vagina7 at all times relevant to this case. JA 16.
On at least one occasion the arresting officer identified Ms. Shaw as female. JA
28.
The risk of harm of placing a woman, whether transgender or not, in the
men’s area of Central Cellblock and the men’s bullpen at Superior Court is
obvious. It is because of this obvious and significant risk of harm that custodial
settings, including the Central Cellblock and the Superior Court holding area, are
almost universally segregated by sex. See, e.g., Metropolitan Police Department,
Standard Operating Procedures for Holding Facilities § III.E.5, JA 111 (May 20,
2003) (“male and female prisoners shall be separate by ‘sight and sound.’”).
Supervisors Quicksey and Kates are responsible for failing to train their employees
on how to protect detainees when the sex assigned to a person based on her PDID
number conflicts with other available information. Here, it was patently
unreasonably for Appellants’ supervisees to use the gender marker on the PDID
	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
   	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
   	
  
7

Amici note that there is no reason the officers should know what a detainee’s
genitals look like unless a strip or cavity search is otherwise legally authorized. In
this case, however, because Ms. Shaw was forced to urinate in front of staff on
multiple occasions, USMS officers knew she had a vagina as early as her June
2009 arrest. JA 24.
	
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number to override all other evidence of a detainee’s gender for purposes of
making housing placements and conducting searches.
In this case, the officers were aware that Ms. Shaw was female but
nevertheless housed her in the men’s area of Central Cellblock and in the men’s
bullpen at Superior Court because the gender marker on her PDID was male. This
policy or practice of deeming the PDID gender marker dispositive for both MPD
and USMS placements is clearly unreasonable and would require a woman to be
housed with men whether she was classified as male upon her first arrest due to a
clerical error or because she was assigned male at birth.
Where the risk of harm to women, including transgender women, in men’s
holding areas is obvious, it is objectively unreasonable to allow one’s employees to
place a woman in a men’s area simply because a PDID number classifies her as
male when other reliable information indicates that she is female. Because Ms.
Shaw has pleaded facts that show Quicksey and Kates were deliberately indifferent
to the risk of serious harm to her, the Court should affirm that she has alleged a
deprivation of her rights as a pretrial detainee under the Fifth Amendment.
III.

Appellants Musgrove And Kates Violated Ms. Shaw’s Fourth
Amendment Rights

Also at issue in this case are Ms. Shaw’s allegations that she was subjected
to two unconstitutional cross-gender searches in 2009 by Appellant Musgrove and

	
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an unknown male U.S. Marshal, both under the supervision of Appellant Kates.8
During both searches, Ms. Shaw was subjected to degrading and harassing
comments about her body and female gender. JA 21, 31. During the June 2009
search, the presently unknown male deputy excessively and repeatedly groped her
breasts, buttocks and between her legs. JA 21. That search was conducted in the
presence of other male deputies as well as in the presence of male detainees. JA
21. These searches violated Ms. Shaw’s Fourth Amendment rights.
The “reasonableness” of a search 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.” Bell, 441 U.S. at 559. The Supreme Court in Bell
provided four factors to consider when engaging in this balancing: 1) the scope of
the particular search; 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.
The District Court correctly analyzed the searches of Ms. Shaw as crossgender searches and properly applied the well-established standards for crossgender searches. Ms. Shaw was searched by male officers solely because she was
	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
   	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
   	
  
8

The unknown USMS deputies responsible for the 2012 search are not appellants
before this Court and therefore that search will not be discussed.
	
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classified as male during a previous arrest, and despite every other fact available to
the officers establishing that she is female, including her statements, her
presentation, her bodily appearance and her identification documents. JA 16, 21.
The Federal Appellants suggest that even if the Court agrees that the
searches of Ms. Shaw were cross-gender searches, they were reasonable because
cross-gender searches are not per se unconstitutional. Fed. Br. at 16. However,
that abbreviated analysis fails to take into consideration all of the Bell balancing
factors and disregards many of the additional allegations in the Complaint. All of
the cases cited by Appellants, in which courts apply the Bell factors but uphold the
constitutionality of the search, turn on critical facts not present in this case.9 As

	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
   	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
   	
  
9

In Schmidt v. City of Bella Villa, 557 F.3d 564, 574 (8th Cir. 2009), the Eighth
Circuit determined that an officer’s photographing of a tattoo below the plaintiff’s
waistband did not constitute an unreasonable search. However, the court noted
that the scope of the intrusion was lessened because the officer conducted the
search in a private location. Id. at 574. There was no evidence in the record that
the male officer physically touched the female plaintiff. See id. at 567-68. In
addition, the court stated that it was a “close[] question whether it was
substantively reasonable for [the male officer] to photograph Schmidt’s tattoo
himself, rather than enlisting a female officer to do so.” Id. at 573. The search at
issue in Farkarlun v. Hanning, 855 F. Supp. 2d 906, 923 (D. Minn. 2012), was a
search incident to arrest in which officers suspected the plaintiff was hiding drugs
on her person. The court noted that “[s]earching of a suspect by an officer of the
opposite sex that involves intimate touching has also been held unreasonable,” but
found the officer was entitled to qualified immunity given the particular
circumstances of the search. Id. at 923. Grummet v. Rushen involved convicted
prisoners, as opposed to a pre-trial detainee such as Ms. Shaw. See further
discussion of this case infra.
	
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discussed below, Ms. Shaw was searched in front of numerous male officers and
detainees on a nonemergency basis, she was inappropriately touched during those
searches, and she was verbally harassed by officers during the course of the
searches. In short, Appellants’ cited cases are inapposite.
A. The cross-gender searches of Ms. Shaw were unreasonable
in scope
In Byrd v. Maricopa County Sheriff’s Dep’t, 629 F.3d 1135, 1143 n.8 (9th
Cir. 2011), the court found cross-gender searches unreasonable when they went
beyond a mere “pat down” because they involved intimate contact with the
inmate’s body. As the District Court here accurately observed, the scope of Ms.
Shaw’s cross-gender searches was significantly more invasive than a traditional
pat-down search. JA 406-08. In June 2009, a male deputy under the supervision
of Appellant Kates searched Ms. Shaw, excessively and repeatedly groping her
breasts, buttocks and between her legs. JA 21.
The Federal Appellants appear to concede that a pat-down search is the
appropriate search to be conducted when a detainee is transferred to USMS
custody. Fed. Br. at 16 n.6. The excessive and intrusive touching that occurred
during the searches of Ms. Shaw violate USMS policy regarding pat-down
searches. See USMS Policy Directive No. 99-25, at 2 (1999), JA 92 (defining a
pat-down search as a “procedure of patting or running of a deputy’s hands over the
person’s clothed body as well as the opening of pockets or other areas where
	
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weapons or contraband may be concealed.”); see also Jordan v. Gardner, 986 F.2d
1521, 1522 n.1 (9th Cir. 1993) (noting that the euphemistically termed “pat down”
search failed to describe more intrusive searches better described as “‘rubbing,’
‘squeezing,’ and ‘kneading’” and declining to refer to such searches as “pat
downs”). Such invasive cross-gender searches of detainees by officers of the
opposite sex are unreasonable under the Fourth Amendment. See Byrd, 629 F.3d
at 1142 (finding search conducted by female corrections officer that involved
touching male prisoner’s genitals through boxer shorts unreasonable); Amaechi v.
West, 237 F.3d 356, 362 (4th Cir. 2001) (holding search unreasonable, and
therefore unconstitutional, where male officer searched female misdemeanant
suspect over bathrobe in sexually invasive manner). See also Jordan, 986 F.2d at
1530-31 (enjoining random, nonemergency, suspicionless clothed body searches of
female prisoners by male guards that involved touching on and around their breasts
and genitals).
B. The cross-gender searches of Ms. Shaw were also
unreasonable because they were accompanied by
verbal abuse and harassment
The 2009 searches of Ms. Shaw were also unreasonable because of the
verbal abuse that accompanied them. Appellants argue that Appellant Musgrove’s
December 2009 search of Ms. Shaw was merely a non-intrusive cross-gender
search. However, Musgrove made harassing and demeaning statements about Ms.
	
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Shaw’s body, stating, “you need Jenny Craig, all those butt shots you got in your
butt.” JA 31. Musgrove also intentionally used the incorrect gender pronoun, and
possibly racially charged language, in order to harass Ms. Shaw, saying, “here he
goes again; what you done this time boy?” JA 31. Courts have found that crossgender searches combined with this type of abusive, harassing or derogatory
language violate the Fourth Amendment. See Mays v. Springborn,	
  575 F.3d 643,
650 (7th Cir. 2009) (holding that evidence of demeaning comments made during
an otherwise valid strip search supported a constitutional claim). The Eighth
Circuit upheld an injunction against otherwise proper body cavity searches that
were made unconstitutional through verbal abuse and harassment. Goff v. Nix, 803
F.2d 358, 365 n.9 (8th Cir. 1986). See also Calhoun v. DeTella, 319 F.3d 936, 940
(7th Cir. 2003) (finding that strip searches “designed to demean and humiliate”
supported an Eighth Amendment claim).
Appellants rely heavily on Grummett v. Rushen, 779 F.2d 491, 496 (9th Cir.
1985), to support their argument that Musgrove’s December 2009 search of Ms.
Shaw was reasonable. Although Grummett upheld the constitutionality of the
cross-gender searches at issue, the reasonableness of those searches turned on the
fact that they were “performed by the female guards in a professional manner and
with respect for the inmates.” Id. In contrast, the searches of Ms. Shaw were
anything but professional and respectful. A reasonable factfinder could conclude
	
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that Appellant Musgrove ridiculed Ms. Shaw’s body, verbally harassed her about
her return to custody, and intentionally used the wrong gender pronoun as well as
racially charged language in order to demean her. JA 31.
Similarly, the June 2009 search, conducted by an unknown U.S. Marshal
under the supervision of Appellant Kates, included comments such as, “those must
be implants because hormones don’t make breasts stand up so perky like that,” and
“he’s the best I’ve ever seen.” JA 21. That search also involved unlawful sexual
touching. JA 21. Under these circumstances, a reasonable factfinder could
determine that the searches were performed in a manner designed to harass and
demean Ms. Shaw. See Mays, 575 F.3d at 650; Goff, 803 F.2d at 365 n.9.
C. The lack of exigent circumstances justifying the invasive
cross-gender searches made the searches unreasonable
The June 2009 cross-gender search of Ms. Shaw involved excessive
touching of her breasts, her buttocks, and between her legs, JA 21, making it
significantly more invasive than a traditional pat-down search. The search was
conducted by an unknown male deputy under the supervision of Appellant Kates,
even though a female deputy was available and prepared to conduct the search
herself. JA 21. Courts have held that absent exigent circumstances, invasive
cross-gender searches are unconstitutional. This also accords with U.S. Marshals’
policy. United States Marshals Service Policy Directive No. 99-25, at 5 (1999), JA
95. See also Byrd, 629 F.3d at 1142 (holding invasive search of a male pre-trial
	
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detainee by a female guard — when there was no emergency and when a male
guard was available to perform the search instead — was unreasonable and
violated the Fourth Amendment); Amaechi, 237 F.3d at 361 (holding search of
female misdemeanant arrestee by male officer that involved searching between her
legs unreasonable because the search was “highly intrusive without any apparent
justification”); Canedy v. Boardman, 16 F.3d 183, 188 (7th Cir. 1994) (finding
allegations that two female corrections officers strip searched male detainee
although ten male officers were nearby and available to conduct the search stated a
constitutional claim).
Indeed, courts have found that, absent exigent circumstances, invasive
searches merely conducted in the presence of opposite-sex individuals are
unreasonable. See Hutchins v. McDaniels, 512 F.3d 193, 196 (5th Cir. 2007)
(citing presence of other prisoners and an opposite-sex guard during a strip search
supported a Fourth Amendment claim); Hayes v. Marriott, 70 F.3d 1144, 1147
(10th Cir. 1995) (holding summary judgment was inappropriate due to allegations
of a strip search conducted in the presence of opposite-sex corrections officers and
staff without adequate justification); Cornwell v. Dahlberg, 963 F.2d 912, 916 (6th
Cir. 1992) (male prisoner raised valid privacy claim under Fourth Amendment for
strip search outdoors in view of several female corrections officers); Bonitz v. Fair,
804 F.2d 164, 173 (1st Cir. 1986) (finding body cavity searches of female
	
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prisoners conducted in the presence of male officers violated the prisoners’ clearly
established Fourth Amendment rights).10
D. The public location of the cross-gender searches made
them unreasonable.
Finally, the location of the searches also supports Ms. Shaw’s claim that
they were unreasonable. “Courts across the country are ‘uniform in their
condemnation of intrusive searches performed in public.’” Brown v. Short, 729 F.
Supp. 2d 125, 139 (D.D.C. 2010) (quoting Campbell v. Miller, 499 F.3d 711, 719
(7th Cir. 2007)). In June 2009, presently-unknown male deputies under the
supervision of Appellant Kates conducted an invasive search of Ms. Shaw in the
presence of male detainees who were also being processed. JA 21. The deputies
unreasonably took no precautions to shield Ms. Shaw from the other detainees
during the invasive search. See Hutchins v. McDaniels, 512 F.3d 193, 196 (5th
Cir. 2007) (citing presence of other prisoners and an opposite-sex guard during a
strip search supported a Fourth Amendment claim); Farmer v. Perrill, 288 F.3d
	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
   	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
   	
  
10

Some of these cases involved strip searches that included the removal of
clothing, but that does not limit their applicability to the searches at hand. This
Court has recognized that the balancing inquiry set forth in Bell “remains the same
regardless of how one characterizes the search.” BNSF Ry. Co. v. Dep’t of
Transp., 566 F.3d 200, 208 (D.C. Cir. 2009). “Bell v. Wolfish and subsequent
cases involving strip searches express a more general concern with the Fourth
Amendment implications underlying the violation of personal privacy inherent in
sexually invasive searches.” Amaechi, 237 F.3d at 364 n.14 (internal citation
omitted).
	
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1254, 1260-61 (10th Cir. 2002) (affirming denial of summary judgment as to
allegations of visual strip searches conducted in view of other prisoners); Vaughan
v. Ricketts, 859 F.2d 736, 741-42 (9th Cir. 1988) (finding mass searches conducted
in public supported a Fourth Amendment claim); Mays, 575 F.3d at 649-50
(finding evidence of searches conducted publicly and against prison rules
supported a constitutional claim). See also Meriwether v. Faulkner, 821 F.2d 408
(7th Cir. 1987) (finding allegations that a transgender woman was forced to strip
repeatedly in front of inmates and other officers were sufficient to state an Eighth
Amendment claim).11
The scope, manner, justification, and location of the searches of Ms. Shaw
were unreasonable under Bell, and therefore Ms. Shaw properly stated a Fourth
Amendment claim against both federal Appellants.
IV.

Appellants Quicksey And Kates Violated Ms. Shaw’s Fourth
And Fifth Amendment Rights By Failing To Train Subordinate
Officers Under Their Supervision

Though Appellant Musgrove and unknown MPD and USMS officers are
responsible for actually placing Ms. Shaw in the men’s holding areas and
conducting the intrusive cross-gender searches of Ms. Shaw, Appellants Quicksey

	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
   	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
   	
  
11

See footnote 10, supra.
	
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and Kates are liable for failing to train and supervise the officers who made those
placements and conducted those searches.12
Appellants argue that Ms. Shaw must establish a pattern of unconstitutional
conduct to allege supervisory liability. As the District Court properly held, a
plaintiff need not show a pattern of past transgressions if it is clear that without
training, a violation is inevitable.13 Supervisory liability can be triggered when the
training provided is “so clearly deficient that some deprivation of rights will
inevitably result absent additional instruction.” Int’l Action Ctr. v. United States,
	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
   	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
   	
  
12

Appellant Kates’ suggestion that Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948–49
(2009), eliminated or abrogated supervisory liability, Fed. Br. at 23, misreads the
Court’s holding in that case. Iqbal neither did away with supervisory liability nor
offered a new standard requiring supervisors’ direct participation in the
unconstitutional conduct of their subordinates. The term “supervisory liability”
was a misnomer, the Court reasoned, only insofar as it suggested that a
supervisor’s status as a supervisor could itself establish liability based on a
subordinate’s unconstitutional acts. Id. at 1949. The Court reaffirmed that an
official may be held liable for “his or her own misconduct,” including “violations
arising from his or her superintendent responsibilities.” Id. Courts that have
considered the question have held, after Iqbal, that a supervisor may be held liable
for violations arising from his or her personal responsibilities. See, e.g, Johnson v.
Gov’t of the District of Columbia, 734 F.3d 1194, 1204-05 (D.C. Cir. 2013)
(supervisor may be held liable in a Bivens action where her state of mind met the
standard imposed by the particular constitutional violation); OSU Student Alliance
v. Ray, 699 F.3d 1053, 1073 n. 15 (9th Cir. 2012) (“Iqbal does not stand for the
absurd proposition that government officials are never liable under § 1983 and
Bivens for actions that they take as supervisors. . . . Iqbal holds simply that a
supervisor’s liability, like any government official’s liability, depends first on
whether he or she breached the duty imposed by the relevant constitutional
provision”).
13

In addition, given Ms. Shaw’s previous assaults in custody and reports of
violence against other women, the complaint properly alleges past violations.
	
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365 F.3d 20, 27 (D.C. Cir. 2004); see also Elkins v. D.C., 690 F.3d 554, 566 (D.C.
Cir. 2012). Cf. Johnson v. City of Cincinnati, 39 F. Supp. 2d 1013, 1019–20 (S.D.
Ohio 1999) (finding that information existed in the law enforcement community
that put officers on notice of the dangers of positional asphyxiation; situation
should have been known to be one officers encountered regularly and thus required
special training).
The District Court correctly noted that Ms. Shaw alleged nearly a dozen
different areas in which Appellants Kates and Quicksey failed to provide adequate
training or supervision. JA 415-16, 418-20. Both Kates and Quicksey must have
known that absent any training in this area, harm would inevitably occur. The
Complaint references a report from the D.C. Office of the Inspector General, MPD
General Orders and Standard Operating Procedures, the report from the Prison
Rape Elimination Act Commission, and complaints or reports from previous
detainees, which were adequate to put Kates and Quicksey on notice that without
training, harm was inevitable. JA 20.
In addition, the obviousness of the harm, as discussed in detail in Section
IIB, supra, was sufficient to put Kates and Quicksey on notice that harm was
inevitable absent proper training. The risk of harm of placing Ms. Shaw with male
detainees was substantial. Training that permits a supervisee to elevate the gender
marker associated with an individual’s PDID above all other information is “so
	
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clearly deficient” as to rise to the level of a constitutional violation. Int’l Action
Ctr., 365 F.3d at 27.
By the time Ms. Shaw was arrested in June 2009, the MPD had had a policy
in effect for two years that required staff to flag conflicting gender information and
write “AT RISK” in red letters on the detainee’s file for USMS staff at Superior
Court. MPD General Order: Handling Interactions with Transgender Individuals
(October 16, 2007), available at https://go.mpdconline.com/GO/3925000.pdf. It
is not known whether Ms. Shaw’s paperwork was marked “AT RISK” as is
required under MPD policy. Even if the paperwork was not marked in this way
(supporting Ms. Shaw’s allegations that MPD officers were not properly trained),
the policy’s existence also makes clear that both MPD and USMS officials were
well aware of the risk of harm to detainees with conflicting gender information,
such as Ms. Shaw. Additionally, the USMS was a part of the PREA Commission
working group convened by the Attorney General to finalize recommendations to
the DOJ. The June 2, 2009 report of the PREA Commission focused extensively
on the risk of violence, including sexual violence, to transgender detainees.
NPREC Report, JA 203 (“Male-to-female transgender individuals are at special
risk.”).
If the twenty years of case law stemming from Farmer, the clear findings of
the NPREC and recommendations of the PREA working group, and common sense
	
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were not sufficient to put Appellants Quicksey and Kates on notice of the need for
training to protect vulnerable individuals like Ms. Shaw from harm, then it seems
there is no set of conditions that would. A reasonable factfinder could find that
Appellants’ lack of training, including their policy or practice of placing women
with conflicting gender information in men’s units, was directly responsible for
Ms. Shaw’s abuse, including her forced exposure of her breasts and vagina to male
detainees, allowing male detainees to masturbate in front of her and throw a “thick
liquid” at her, and the overall harassment and abusive searches she suffered. The
Constitution does not tolerate such inaction by supervisors responsible for ensuring
that individuals in custody are free from harassment and abuse.
CONCLUSION
Because Ms. Shaw has alleged sufficient facts establishing that Defendants
violated her clearly established Fourth and Fifth Amendment Rights, amici
respectfully urge this Court to affirm the District Court’s denial of Defendants’
Motions to Dismiss based on qualified immunity.
Respectfully submitted,
Arthur	
  B.	
  Spitzer	
   	
  
	
  
Arthur B. Spitzer
Jennifer Wedekind
American Civil Liberties Union
of the Nation’s Capital
4301 Connecticut Ave., N.W., Suite 434
Washington, D.C. 20008
	
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T: 202-457-0800
F: 202-457-0805
E: artspitzer@aclu-nca.org
Chase Strangio
LGBT & AIDS Project
American Civil Liberties Union
125 Broad Street
New York, NY 10004
T: 212-284-7320
F: 212-549-2650
E: cstrangio@aclu.org
Counsel for Amici Curiae
March 25, 2014

	
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CERTIFICATE OF COMPLIANCE
I hereby certify that this brief complies with the type-volume limitation of
Fed. R. App. P. 32(a)(7)(B) and Fed. R. App. P. 29(d) because it contains 6,930
words, excluding the parts of the brief exempted by Fed. R. App. P.
32(a)(7)(B)(iii) and Circuit Rule 32(a)(1).
I further certify that this brief complies with the typeface requirements of
Fed. R. App. P. 32(a)(5) and the type-style requirements of Fed. R. App. P.
32(a)(6), because it has been prepared in a proportionally spaced typeface using
Microsoft Word 2010 14-point Times New Roman font.

	
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CERTIFICATE OF SERVICE
I hereby certify that on March 25, 2014, I filed the foregoing brief with the
Clerk of the United States Court of Appeals for the District of Columbia Circuit
via the appellate CM/ECF system. Participants in this case are registered CM/ECF
users and service will be accomplished by the appellate CM/ECF system.
/s/ Arthur B. Spitzer
Arthur B. Spitzer

	
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DESCRIPTIONS OF AMICI
The American Civil Liberties Union (ACLU) is the oldest organization
dedicated to promoting and defending civil liberties in the United States. Two of
the ACLU’s areas of particular expertise are the rights of lesbian, gay, bisexual,
and transgender individuals, and the rights of prisoners. The American Civil
Liberties Union of the Nation’s Capital is an affiliate of the ACLU dedicated to
promoting civil liberties in the District of Columbia. Both the ACLU and the
ACLU of the Nation’s Capital have appeared frequently before this and other
federal courts, as direct counsel and as amici.
The D.C. Trans Coalition (DCTC) is an unincorporated nonprofit association
dedicated to fighting for human rights, dignity, and liberation for transgender,
transsexual, and gender-diverse (hereinafter “trans”) people in the District of
Columbia area. DCTC organizes in the D.C., Maryland and Virginia areas to
spread awareness, increase trans people’s access to resources and information, and
ensure that trans people are treated with respect and dignity. DCTC works toward
changing laws, policies and services to improve the lives of trans people and
realize gender self-determination for the local trans communities. DCTC also
provides workshops and trainings designed to educate trans communities on the
law so that they are prepared to defend their rights and live without fear. DCTC

	
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has a strong interest in the outcome of any lawsuit that affects the rights of trans
detainees in the D.C., Maryland or Virginia area.
The Human Rights Defense Center (HRDC) is a nonprofit charitable
corporation headquartered in Florida that advocates on behalf of the human rights
of people held in state and federal prisons, local jails, immigration detention
centers, civil commitment facilities, Bureau of Indian Affairs jails, juvenile
facilities, and military prisons. HRDC’s advocacy efforts include publishing
Prison Legal News, a monthly publication that covers criminal justice-related news
and litigation nationwide, publishing and distributing self-help reference books for
prisoners, and engaging in litigation in state and federal courts on issues
concerning detainees. HRDC submitted comments to the U.S. Department of
Justice regarding the proposed Prison Rape Elimination Act standards in 2010 and
2011 to support the greatest possible protections for prisoners against being
sexually assaulted and raped while in custody.
Just Detention International (JDI) is a human rights organization dedicated
to putting an end to sexual violence in all forms of detention. JDI has three core
goals for its work: (1) to ensure government accountability for prisoner rape; (2) to
transform public attitudes about sexual violence in detention; and (3) to promote
access to resources for those who have survived this form of abuse. The
organization provides expertise to lawmakers, officials, counselors, advocates, and
	
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reporters on issues pertaining to inmate safety and the obligations of corrections
officials to prevent and respond to sexual abuse.
Lambda Legal Defense and Education Fund, Inc. (Lambda Legal) is a
national organization dedicated to achieving full recognition of the civil rights of
lesbian, gay, bisexual, and transgender (LGBT) people and those living with HIV
through impact litigation, education and public policy work. Lambda Legal has
worked to address the particular vulnerability of transgender people in custody
through comments to the PREA Commission, the Department of Justice, the
Department of Homeland Security, and testimony to the U.S. Senate and has
appeared as counsel or amicus curiae in numerous cases in federal and state court
involving the rights of transgender people. See, e.g., Fields v. Smith, 653 F.3d 550
(7th Cir. 2011),	
  (holding that Wisconsin law preventing transgender prisoners from
accessing transition-related care violated prohibition against cruel and unusual
punishment) cert. denied, 132 S. Ct. 1810 (2012); Rosati v. Igbinosa, No. 12-cv01213, 2013 U.S. Dist. LEXIS 60247 (E.D. Cal. Apr. 26, 2013), appeal docketed,
No. 13-15984 (9th Cir. May 16, 2013) (appealing district court decision dismissing
deliberate indifference claim of transgender prisoner denied sex reassignment
surgery); Brandon v. County of Richardson, 264 Neb. 1020 (Neb. 2002) (holding
that a sheriff could not avoid liability for failure to protect a transgender man who
had been raped and, days after reporting that crime, was murdered by the same
	
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perpetrators in early landmark case involving highly publicized hate crime).
Because protecting the rights of transgender people when they are at their most
vulnerable, including when they are entirely within governmental control due to
incarceration, is integral to Lambda Legal’s mission, Lambda Legal has a strong
interest in the decision of this motion.
The National Police Accountability Project (NPAP) is a nonprofit
organization founded by members of the National Lawyers Guild. NPAP has more
than five hundred attorney members throughout the United States who represent
plaintiffs in law enforcement misconduct cases. NPAP often presents the views of
victims of civil rights violations through amicus filings in cases raising issues that
transcend the interests of the parties. One of the central missions of NPAP is to
promote the accountability of police officers and prison personnel and their
employers for violations of the Constitution or laws of the United States.
The National Center for Lesbian Rights (NCLR) is a national organization
committed to protecting and advancing the rights of lesbian, gay, bisexual, and
transgender (LGBT) people, including LGBT individuals in prison, through impact
litigation, public policy advocacy, public education, direct legal services, and
collaboration with other social justice organizations and activists. NCLR is
particularly interested in ensuring that transgender prisoners are safely housed,
provided with appropriate medical treatment, and are free from sexual and physical
	
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harassment and abuse. Each year, NCLR serves more than 500 people in
California, and more than 5,000 people in all fifty states.
The National Center for Transgender Equality (NCTE) is a national social
justice organization devoted to advancing justice, opportunity and well-being for
transgender people through education and advocacy on national issues. Since
2003, NCTE has been engaged in educating legislators, policymakers and the
public, and advocating for laws and policies that promote the health, safety and
equality of transgender people. NCTE provides informational referrals and other
resources to thousands of transgender people every year, including many
individuals in prisons, jails and civil detention settings, and has been extensively
involved in efforts to implement the Prison Rape Elimination Act (PREA) and
other efforts to address the vulnerability of transgender people in confinement
settings.
Streetwise and Safe (SAS) is an organization dedicated to ending profiling
and discriminatory policing of lesbian, gay, bisexual, transgender and queer
(LGBTQ) youth of color in New York City and nationally, with a particular focus
on the experiences of the disproportionate number of homeless youth who identify
as LGBTQ. SAS comes into contact with hundreds of LGBTQ youth every year
through workshops and outreach aimed at providing LGBTQ youth of color with

	
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information that will reduce the harm of contact with law enforcement and is
tailored to their unique experiences of policing.
SAS played a leadership role in securing comprehensive changes to the New
York City Police Department’s Patrol Guide (NYPD Patrol Guide) promulgated in
2012 to address violations of the rights of transgender New Yorkers, and serves on
the LGBT Advisory Panel to the New York City Police Commissioner. We also
offer legal representation to LGBTQ youth of color who experience profiling and
discriminatory policing practices.
In the course of drafting and negotiating the changes to the NYPD Patrol
Guide, SAS conducted extensive research and engaged in first hand documentation
of the harms of inappropriate searches and placement of transgender and gender
nonconforming individuals in police custody. We also looked to the policy of the
Metropolitan Police Department as a model for protecting the rights of transgender
people in police custody. We are deeply concerned with the MPD’s failure to
effectively implement the policy in Ms. Shaw’s case, and with reports we have
received indicating that the policy is systemically not being followed by the U.S.
Marshals and the MPD. Because the policy changes we successfully negotiated in
New York City and are now promoting across the country were based in part on
the policies of the Metropolitan Police Department, we have an interest in ensuring

	
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that these policies are being effectively implemented to prevent precisely the types
of violations at issue in this case.
The Sylvia Rivera Law Project (SRLP) is a non-profit organization that
provides free civil legal services to low-income people and people of color who are
transgender, intersex, or gender non-conforming in New York State. SRLP has
served over 300 transgender, gender non-conforming and intersex clients in New
York State correctional facilities and has been in contact with over a thousand
transgender individuals in confinement settings across the country. SRLP has
heard from people again and again who have experienced the type of violence that
Ms. Shaw endured and has an interest in the constitutional issues presented in this
case.
Transgender Law Center (TLC) is the nation’s largest organization dedicated
to advancing the rights of transgender and gender nonconformìng people. TLC
works to change law, policy, and attitudes so that all people can live safely,
authentically, and free from discrimination regardless of their gender identity or
expression. TLC works to fight the systems that disproportionately funnel
transgender people into prison and also seeks to improve conditions for
transgender people who are incarcerated, to ensure that they are free from violence,
with the opportunity to live as their authentic selves.

	
  7a



 

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