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Texas Jail Strip Search Policy Unconstitutional

n May 19, 2009, U.S. District Court Judge Walter S. Smith, Jr. denied a motion to dismiss filed by McLennan County, Texas in a suit challenging the constitutionality of the county jail’s policy of strip searching all pre-trial detainees.

The lawsuit, filed by William Robert Bradshaw and Randall Lee Gerik, was prompted after they were strip searched at the McLen-nan County Jail following their separate arrests for drunk driving. Bradshaw and Gerik alleged that the jail’s policy of strip searching all arrestees violated the Fourth Amendment because the searches were performed without reasonable individualized suspicion that weapons or contraband would be discovered.

McLennan County moved for dismissal, arguing that its policy of strip searching all arrestees did not amount to a consti-tutional violation. The court disagreed.

For over 20 years, Judge Smith explained, the Fifth Circuit had recognized the particularly intrusive nature of strip searching pre-trial detainees, and had limited such searches to only those detainees arrested for “major offenses.”

Adopting the so-called minor/major offense inquiry, the Fifth Circuit had struck down as unconstitutional a Lubbock County jail policy that permitted strip searches of all arrestees regardless of the severity of their offenses. The appellate court held in that case that the county’s policy “was applied to minor offenders awaiting bond when no reasonable suspicion ex-isted that they as a category of offenders or individually might possess weapons or contraband.” See: Stewart v. Lubbock County, 767 F.2d 153 (5th Cir. 1985).

Applying Stewart to Bradshaw and Gerik’s suit, Judge Smith concluded that they had alleged a constitutional violation. Driving under the influence of alcohol, Judge Smith wrote, “unaccompanied by any other illegal activity, fits more appropriately with the minor offenses.” Consequently, the district court held that “the strip search of a driving under the influence of alcohol arrestee with-out a reasonable suspicion that the strip search will yield contraband or weapons is a constitutional violation,” and denied the county’s motion to dismiss as to that claim.

Bradshaw and Gerik had sought damages against the Sheriff of McLennan County, but Judge Smith found the sheriff was entitled to qualified immunity because the state of the law regarding strip searching DUI arrestees was unclear when the searches were conducted. Further, the court rejected the plaintiffs’ requests for injunctive and declaratory relief, finding they lacked standing based on a hypothetical possibility that they might be re-arrested and again strip searched at the McLennan County Jail.

This was not a ruling on the merits; the case is still ongoing, with a pending motion for class certification and a scheduled trial date of March 1, 2010. Bradshaw and Gerik are represented by the Texas Civil Rights Project and Sacramento attorneys Joshua Kaizuka and Mark E. Merin. See: Bradshaw v. McLennan County, U.S.D.C. (W.D. Tex.), Case No. 6:08-cv-00246.

Update: On October 30, 2009, the district court denied plaintiffs' motion for class certification.

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Related legal case

Bradshaw v. McLennan County

Please see the brief bank for documents related to this case.