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Illegal Strip Searches During Minor Charges Net Sacramento Jail Detainees $1,000 Each

Illegal Strip Searches During Minor Charges Net
Sacramento Jail Detainees $1,000 Each

by John E. Dannenberg

The Sacramento County Superior Court ruled that the Sacramento County Jail's policy of strip-searching all detainees - regardless of their charges - violated California Constitution Art. 1 § 1 [privacy is an inalienable right], violated CA Penal Code (PC) §4030 and violated federally accepted decency standards protecting against unwarranted body cavity searches. The court certified a class of all such detainees since March 14, 2000 and ruled that they were statutorily entitled to damages of at least $1,000 each. The court further ruled that Sacramento County Sheriff Lou Blanas was not qualifiedly immune from suit under state law.

Mary Bull was one of seven protesters arrested for misdemeanor charges of unlawful assembly and failure to disperse at a state Forestry Dept. policy hearing on proposed cutting of trees on private land. When taken by Sacramento County sheriff's deputies to the county jail, they were subjected to full unclothed body searches, including body cavities - all of which was recorded by video cameras. Represented by attorney Mark Merin, Bull sued Blanas for violating her state constitutional privacy rights, for violating her state statutory rights against such invasive searches, and for violating her federal civil rights protected under 42 U.S.C. § 1983.

In ruling on the 18 point complaint, Judge Thomas Cecil first granted summary judgment for Bull on the privacy right issue, relying on Hill v. National Collegiate Athletic Assn. (1994) 7 Cal. 4th 1, because the facts were undisputed that Bull had a legally protected privacy interest, a reasonable expectation of privacy under the circumstances, and that Blanas' conduct constituted a serious invasion of privacy. Summary judgment was also granted Bull on the statutory protection issue as a matter of law, based upon PC §4030 which expressly protects such misdemeanants from this type of search. Following the provisions of PC §4030(p), the court awarded each class member $1,000 or actual damages that might be proved, whichever is greater, but denied punitive damages at the summary judgment stage (citing Haines v. Parra (1987) 193 Cal.App.3rd 1553) - reserving that determination for a jury trial set for later.

As to the § 1983 claim brought in state court, Defendant Blanas prevailed because the superior court was bound by California precedent in County of Los Angeles v. Superior Court ("Peters') (1998) 68 Cal.App.4th 1166, which held that a county sheriff acts for the state and is thus immune under the Eleventh Amendment from § 1983 suit.

Merin claims to already have a list of thousands of qualifying class members. He estimates the number of prisoners covered by the superior court ruling at 1,000 per week; Blanas counters that the number is more like 3 per week. The class consists of all individuals booked for non-violent charges, for non-drug related misdemeanors, or for minor infractions who were subjected to strip or visual body cavity searches after March 14, 2000. The only exceptions allowed by the court were a search conducted after arraignment, a search conducted with written authorization from a supervising officer certifying a reasonable suspicion that contraband will be found, or a search made pursuant to warrant.

But Blanas' problems may just be beginning. After the superior court ruling, attorney Merin filed a federal class action § 1983 suit against Blanas in US District Court (E.D. Cal.) - a forum where the class may instead rely upon the Ninth Circuit ruling in Streit v. County of Los Angeles, (9th Cir. 2001) 236 F.3d 552 [PLN, Feb. 2002, p.26] which held [in contrast to Peters] that a county sheriff is liable because he does not act for the state.

The class size in the federal complaint is arguably far larger - Merin claims "tens of thousands" - now including minor felony detainees whose rights sound in § 1983 rather than in state law. It also adds the class of detainees improperly strip searched solely because they were, for the convenience of the Jail, summarily relegated to placement in the Jail's general population - i.e, mixed with prisoners who were normally subject to such searches. Moreover, proving as well a violation of California's own Civil Rights Act (CA Civil Code §51) could entitle each class member to an additional $4,000 minimum statutory damage award (Civil Code §52(a)).

Blanas' attorney David Lind retorted that attorney Merin is unjustly trying to "line his pockets at taxpayer expense" by pursuing large total damages, rather than simply asking the court for an order halting the strip-search practice. But one can only wonder: If the practice is admittedly unlawful, why would a sheriff insist upon a court order before he would comply with the law? See: Bull, et al. v. County of Sacramento, et al., Sacramento Superior Court No. 01ASO1545, Order re Summary Adjudication, December 24, 2002.

The Bull decision has since become a lightning rod for Califonia jail commanders. In a May, 2003, statewide meeting in Fresno, they reviewed state law on strip search policies, and at a recent conference of the California Peace Officers Association in Monterey, counsel Martin Mayer advised officials to review their policies. California State Sheriff's Association's jail and corrections committee chairman, San Benito County Sheriff Curtis Hall, ceded, "It's a hot topic... constantly being discussed." Earlier in 2003, Los Angeles County revised its strip search policy after settling a $2.7 million suit brought by bicycling female protesters who were strip searched before arraignment. Now, such detainees are kept separate from general population and not strip searched.

Sacramento County has since modified its policy based on the Bull decision, even though they are appealing it. But activist Mary Bull's problems continue. On November 18, 2002, she was arrested on a felony vandalism charge in San Francisco for her war protest act of pouring red corn syrup on the steps of Chevron's headquarters. She is suing to protest alleged actions of deputies twice forcing her to the ground, then strip searching her, visually examining her body cavities after she refused to consent to the search. Her suit claims that she was thrown nude into a cold room for up to 12 hours at a time after each search.

Additional Source: Sacramento Bee

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Related legal case

Bull v. County of Sacramento