CA6: Jail strip searches in front of other inmates alleges a cause of action; not barred by Florence

“This appeal boils down to one question: whether a complaint states a constitutional claim when it alleges that defendant’s jail, instead of using less invasive procedures, compelled pretrial detainees who were being processed into the facility to undress in the presence of other detainees and to have their naked genitals sprayed with delousing solution from a pressurized metal canister. We hold that such allegations plausibly allege a violation of the Fourth Amendment. We therefore reverse the district court’s contrary conclusion and remand the case for further proceedings.” Williams v. City of Cleveland, 2014 U.S. App. LEXIS 21367, 2014 FED App. 0276P (6th Cir. November 10, 2014):

Florence, far from recanting the principle that “[t]he need for a particular search must be balanced against the resulting invasion of personal rights,” in fact reiterated it. 132 S. Ct. at 1516. In Florence, the plaintiff alleged that the jail’s decision to strip search him was unreasonable not because it was conducted in an unreasonable manner but because it lacked sufficient justification; namely, that it was conducted absent individualized suspicion that he was concealing contraband. See Bell, 441 U.S. at 559 (noting that “the manner in which [the search] is conducted” and “the justification for initiating it” are two different aspects of whether a particular search is reasonable). In Florence, the plaintiff was subjected to a visual strip search (conducted by correctional officers “[a]pparently without touching the detainees”) and was required “to shower with a delousing agent.” 132 S. Ct. at 1514. The Florence majority rejected the plaintiff’s assertion that individualized suspicion was necessary to submit him to the compulsory shower and visual strip search, ruling that the institutional “security imperatives” for conducting visual strip searches of everyone admitted to its facility without exception outweighed the intrusion into the detainees’ rights. Id. at 1518.

As the district court recognized, Florence precludes any claim that the Cleveland jail’s conduct was unconstitutional due to lack of individualized suspicion. And Cleveland is correct to observe that most of plaintiffs’ protestations that the delousing procedure was unnecessary are beside the point. Florence clearly held that “[t]he danger of introducing lice or contagious infections … is well documented,” such that a correctional facility’s adoption of uniform delousing procedures is an acceptable prophylactic measure that may be administered even in the absence of individualized suspicion that any particular detainee is infected with lice. 132 S. Ct. at 1518.

But nothing in Florence upends the long-standing rule that a search of a detainee, even if it does not need to be based upon individualized suspicion, still “must be conducted in a reasonable manner.” Bell, 441 U.S. at 560. See also United States v. Fowlkes, __ F.3d __, 2014 U.S. App. LEXIS 16387, 2014 WL 4178298, at *6 (9th Cir. Aug. 25, 2014) (observing that an otherwise justified strip search must be performed in a reasonable manner); Evans v. Stephens, 407 F.3d 1272, 1281 (11th Cir. 2005) (en banc) (“While searches need not be delicately conducted in the least intrusive manner, they must be conducted in a reasonable manner.”). Put another way, the Fourth Amendment contemplates a discrete search; the reasonableness analysis may not interrogate abstractions but must center upon “the particular search” that has been or will be conducted. Stoudemire, 705 F.3d at 573 (citation omitted). See also Bell, 441 U.S. at 559 (“The test of reasonableness under the Fourth Amendment is not capable of … mechanical application.”).

Recognizing this principle, Florence took pains to emphasize that its holding applied only to the blanket policy before it, which required a visual strip search and a compulsory shower with self-applied delousing solution. 132 S. Ct. at 1523. Florence specifically declined to decide whether any other particular mode of carrying out a blanket search policy would violate the Constitution. Id. The court observed, for example, that if an officer “engag[ed] in intentional humiliation [or] other abusive practices,” the search of a particular detainee could be unreasonable, even if conducted pursuant to a uniformly applicable policy. Id. Further, noted the court, “[t]here also may be legitimate concerns about the invasiveness of searches that involve the touching of detainees”—a recognition that even a blanket search policy may be unreasonable if it calls for searches that are needlessly invasive. Id.; see also id. at 1523 (Roberts Click for Enhanced Coverage Linking Searches, C.J., concurring) (“[I]t is important for me that the Court does not foreclose the possibility of an exception to the rule it announces.”); id. at 1524 (Alito, J., concurring) (emphasizing that the majority held only that “jail administrators may require all arrestees who are committed to the general population of a jail to undergo visual strip searches not involving physical contact by corrections officers.” (emphasis deleted)).

Thus, as Cleveland implicitly recognizes, Florence does not stand for the proposition that every search conducted pursuant to a jail’s uniformly applicable search policy is impregnable from attack on that basis alone. A strip search is “a particularly extreme invasion” of a detainee’s Fourth Amendment rights, and holding that all detainees may be subjected to suspicionless visual strip searches upon entry into a correctional facility does not mean that the strip searches may be conducted in any manner whatsoever that the facility chooses. Stoudemire, 705 F.3d at 573. Simply “to say that [correctional officers] had a legitimate justification for searching, or even strip searching, [plaintiffs] does not conclude our inquiry.” Id. Instead, if the search is conducted in a particularly invasive manner, despite the lack of exigent circumstances that necessitate the degree of invasion to which the detainee is subjected, then the search may be unreasonable by virtue of the way in which it is conducted. See id. at 574 (“[A]lthough [the defendant] had a valid reason for searching [the plaintiff], no special circumstances provided additional justifications for strip searching [the plaintiff] where others could see her naked.”).