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No Fourth Amendment Violation for Abusive Group Strip Search of Female Prisoners

by Ed Lyon

On July 16, 2019, the Seventh Circuit Court of Appeals, in a two-to-one ruling, affirmed a district court’s dismissal of a Fourth Amendment claim prior to a jury trial, at which the jury found for the defendant prison officials on an Eighth Amendment claim.

The facts of the case were that 200 female prisoners at the Lincoln Correctional Center in Illinois were forced to strip and stand so close together that they were touching, in groups of four to 10. “Menstruating inmates had to remove their tampons and sanitary pads in front of others, were not given replacements, and many got blood on their bodies and clothing and blood on the floor,” the appellate court wrote. “The naked inmates had to stand barefoot on a floor dirty with menstrual blood and raise their breasts, lift their hair, turn around, bend over, spread their buttocks and vaginas, and cough.”

Meanwhile, trainee guards made “derogatory comments and gestures about the women’s bodies and odors, telling the prisoners that they were “dirty bitches,” “fucking disgusting,” “deserve to be in here” and “smell like death.” Male guards watched the women from a gymnasium during the 2011 training exercise.

The plaintiffs originally raised a Fourth Amendment claim, which was dismissed by the district court based on Seventh Circuit precedent, holding “that a visual inspection of a convicted prisoner is not subject to analysis under that amendment, though a claim properly lies under the Eighth Amendment if an unnecessary or demeaning inspection amounts to punishment.”

Following the jury’s defense verdict on their Eighth Amendment claim, the plaintiffs appealed trying to have their cause of action under the Fourth Amendment reinstated.

Because the prisoners were ordered by prison guards to expose their genitals themselves, and were not probed by staff members, King v. McCarty, 781 F.3d 889 (7th Cir 2015) was held not to apply in this case.

“Applying the Fourth Amendment to all unwelcome observations of prisoners would eliminate the subjective component [of Eighth Amendment analyses] and create sort of Eighth Amendment lite, defeating the objectives that the Justices sought to achieve by limiting [Fourth Amendment] liability in Whitley v. Albers, 475 U.S. 312 (1986) and similar decisions,” the appellate court wrote.

The majority went on to identify a split between the circuits on this issue in Harris v. Miller, 818 F.3d 49 (2d Cir. 2016) and Hutchins v. McDaniels, 512 F.3d 193 (5th Cir. 2007), and noted dissents in some Seventh Circuit panels.

The Court of Appeals reasoned that once convicted of a felony, even a former prisoner on parole has a greatly diminished expectation of privacy and may “be searched without either probable cause or suspicion,” citing Samson v. California, 547 U.S. 843 (2007). The Seventh Circuit ultimately decided that until the Supreme Court holds otherwise, the established precedent that the “Fourth Amendment does not apply to visual inspections of [convicted] prisoners” would remain in effect.

“It has been 35 years since the justices last considered the extent to which convicted prisoners have rights under the Fourth Amendment while still inside prison walls,” the majority opinion stated. “For more than 20 years it has been established in this circuit that the Fourth Amendment does not apply to visual inspections of prisoners. It is best to leave the law of the circuit alone, unless and until the justices suggest that it needs change.”

“The Fourth Amendment affords all people a base level protection against the most intrusive of searches by government officials,” countered Ruth Brown with the law firm of Loevy and Loevy, one of the attorneys who represented the prisoners. “This was, for the 200 women, degrading. This is what the Fourth Amendment is designed to protect, in our opinion.” See: Henry v. Hulett, 930 F.3d 836 (7th Cir. 2019).


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Related legal case

Henry v. Hulett