CA5 joins CA3: Florence strip search rule on jail intake applies to juveniles

The plaintiff’s daughter, a juvenile, was in a fight at school and was taken to juvenile detention. She was strip searched and subjected to a body cavity search yet was released fairly quickly. Partial summary judgment was granted the county for the search under Florence v. Board of Chosen Freeholders because it should apply to juvenile detention as well. Mabry v. Lee Cnty., 2017 U.S. App. LEXIS 3092 (5th Cir. Feb. 21, 2017):

As the district court noted, T.M.’s case “lies at the intersection” of Safford and Florence: both precedents share important similarities with the facts here, but neither is on all-fours. Mabry v. Lee Cty., 168 F. Supp. 3d 940, 945 (N.D. Miss. 2016). T.M.’s case is like Safford in that it involves the search of a minor student, and it is like Florence in that the search was conducted pursuant to routine intake procedures at a correctional facility. The first question we must address, then, is whether Florence or Safford—or neither—controls in cases when, as here, the inmate who is searched on intake into a correctional facility is a juvenile.

Only one of our sister circuits has addressed precisely this question since Florence was decided. In J.B. ex rel. Benjamin v. Fassnacht, 801 F.3d 336 (3d Cir. 2015), a minor was strip and cavity searched pursuant to routine intake procedures at a juvenile detention center. The Third Circuit held that Florence controlled for two reasons. First, focusing on the logic underlying Florence, the court asserted that “[t]here is no easy way to distinguish between juvenile and adult detainees in terms of the security risks cited by the Supreme Court in Florence.” Id. at 343. And, the court explained, because juveniles and adults pose the same security risks, it follows that the same constitutional test for reasonableness should apply in assessing searches meant to mitigate those risks. See id. at 344-45.

Second, the court in J.B. homed in on certain language in the Florence opinion that seems to indicate a broad scope of the holding, including Florence’s expansive definition of jail to include “other detention facilities.” Id. at 339 (quoting Florence, 132 S. Ct at 1513). The court noted that this “sweeping language … comports with the federal definition of prison: ‘[A]ny Federal, State, or local facility that incarcerates or detains juveniles or adults.'” Id. at 347 (quoting 18 U.S.C. § 3626(g)) (emphasis added). Thus, relying on its reading of Florence’s substantive logic and certain passages in the opinion’s language, the Third Circuit concluded that Florence controls in cases involving strip and cavity searches of minors.

The County urges us to follow the Third Circuit in holding that Florence controls in cases involving juveniles. Mabry and her amici argue that Florence does not control when minors are involved, and that we should instead apply Safford’s reasonable-suspicion test or some other alternative.

In explaining its motivation for shifting the burden of marshalling substantial evidence onto plaintiffs who challenge a search’s reasonableness, the Court in Florence stressed the deference owed to correctional officers. The reason for that deference is because courts do not have “sufficient expertise … to mandate, under the Constitution … specific restrictions and limitations.” Florence, 132 S. Ct. at 1513. “Maintaining safety and order” in correctional facilities “requires the expertise of correctional officials.” Id. at 1515. Consequently, “determining whether a policy is reasonably related to legitimate security interests is peculiarly within the province and professional expertise of corrections officials.” Id. at 1517 (internal quotation marks omitted). It is this expertise on the part of officials, and the lack thereof on the part of courts, that motivates the deferential test outlined in Florence.

Florence’s argument as to institutional competence applies with equal force to juvenile detention centers as it does to adult correctional institutions. That is, we can discern no reason why designing and implementing measures to maintain safety and order in juvenile detention centers requires any less expertise than in adult correctional facilities, nor do we see why courts are more competent to achieve the task in the juvenile context. Importantly, the persuasiveness of this point is not undermined by the fact that the actual security concerns and privacy interests implicated in the juvenile detention center context may be different in important ways from those faced in adult correctional facilities. See, e.g., Safford, 557 U.S. at 375 (noting that “adolescent vulnerability intensifies the patent intrusiveness” of a search); J.B., 801 F.3d at 343 (explaining that “juveniles pose risks unique from those of adults as the state acts as the minor’s de facto guardian … during a minor’s detention period”). Nevertheless, we read Florence to mean that, in the correctional context—whether juvenile or adult—courts, which are not experts, should still defer to officials who are. The logic underlying Florence’s deferential test thus compels the conclusion that the deference given to correctional officials in the adult context applies to correctional officials in the juvenile context as well.

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