In partially denying state officials’ motion for summary judgment, an Illinois federal district court discussed the constitutional parameters involved in the use of a Rapiscan Secure 1000 device, which uses “back-scatter” X-ray technology to perform body scans on visitors entering a detention facility.
Before the court was a 42 U.S.C. § 1983 complaint filed by Geneva Zboralski, who alleged violations of her Fourth and Fourteenth Amendment rights as well as claims for invasion of privacy and assault and battery.
The case arose due to searches that Zboralski was required to undergo to visit her husband, Brad Lieberman, a civilly-committed resident at the Illinois Department of Human Services’ Treatment and Detention Facility (TDF).
Zboralski had never been suspected of bringing contraband into TDF during her regular visits to see Lieberman from 2000 until May 2005. During May 2005, Zboralski came to the attention of TDF security therapy aide Jo Ellen Martin, who patted her down between ten and 20 times that month.
Martin seemed to make it a point to pat search Zboralski each time she entered the facility. During three of those pat downs, Martin briefly touched Zboralski’s vaginal area. The first time, Zboralski gave Martin the benefit of the doubt that it was an accident when she “felt Martin’s index finger briefly move up between her vaginal lips, pushing her pants between her vaginal lips.”
The second time, Zboralski felt Martin’s finger go between her vaginal lips. The third time was a brief touching of the vaginal area. While Zboralski made no physical reaction or comment on the improper touching at the time, she later lodged a complaint with TDF supervisors Darell Sanders and Steve Strock.
In the face of Zboralski’s demand that Martin not touch her anymore, she was told she must either submit to the pat down or be scanned with the Rapiscan. For the next three weeks she was required to undergo a Rapiscan to enter TDF. Zboralski researched the Rapiscan device on the Internet, and found it could display and save images that revealed a person’s genitalia and other personal details.
The district court dismissed Zboralski’s invasion of privacy claim because there was no evidence that her image had been saved, printed or inappropriately used by facility staff. As to Zboralski’s claim that she was required to undergo Rapiscans without her consent, the court examined Fourth Amendment law.
Under the applicable case law, a person cannot be subjected to unreasonable searches or seizures. However, since detention facilities are “unique place[s] fraught with serious security danger,” the Fourth Amendment does not apply in full force. The question of whether the Rapiscan was unreasonable was one of first impression, as no other court, state or federal, had addressed the issue.
While a body scan would seem to be less intrusive than a strip search or pat down search, the fact that a Rapiscan is “capable of producing a highly-detailed image, which includes genitalia and fat folds” can render it very invasive. It also subjects the person being scanned to potentially harmful X-rays. The U.S. Customs agency only utilizes Rapiscans when reasonable suspicion exists.
The district court said it needed testimony as to how reasonable persons would feel if they were subjected to such scans, to help it determine whether the level of detail affects whether or not the scan is more similar to a pat down or strip search.
The district court found that since Zboralski had to undergo a Rapiscan as a condition to visit her husband, the search was not consensual as a matter of law. The court also held that Martin’s intent was at issue in the assault and battery claim. Thus, the defendants’ motion for summary judgment was granted as to two defendants and on the invasion of privacy claim, but denied in all other respects. See: Zboralski v. Monahan, 616 F.Supp.2d 792 (N.D.Ill. 2008).
The defendants’ second motion for partial summary judgment was granted on July 29, 2010. The district court found that “Based on the record evidence, the court cannot conclude that the plaintiff has met her burden to show that there is a genuine issue of fact regarding the reasonableness of the Rapiscan search.” The court held there was no evidence that the Rapiscan caused any physical harm or indignity, though it clarified that it “does not hold that routine searches with this technology are reasonable.”
The case remains pending on Zboralski’s remaining claims. See: Zboralski v. Monahan, U.S.D.C. (N.D. Ill.), Case No. 1:06-cv-03772.
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Zboralski v. Monahan
|Cite||U.S.D.C. (N.D. Ill.), Case No. 1:06-cv-03772|
Zboralski v. Monahan
|Cite||616 F.Supp.2d 792 (N.D.Ill. 2008)|