D.Ore.: Juvenile detention strip search policy is unconstitutional

Juvenile detention strip search policy was unconstitutional because of its excessiveness. Mashburn v. Yamhill County, 2010 U.S. Dist. LEXIS 23969 (D. Ore. March 11, 2010):

The YCJDC strip searches are also, to put it charitably, astonishingly thorough. A boy is required “to lift his scrotum so that staff can inspect the area directly below the testicles.” (Kraemer Aff. (# 29) Ex. 1 at 2.) If a boy is uncircumcised, “he is instructed by staff to pull back the foreskin so that the area beneath the foreskin can be inspected.” (Id.) Girls are required to lift their breasts “so that staff can inspect the area directly below.” (Id. at 4.)

YCJDC could mitigate the length and intensity of its strip searches by taking steps to ensure that the child is not fully exposed for longer than is reasonably necessary to accomplish its search objectives. But aside from moving the child to private area, YCJDC makes no extra effort to preserve the privacy and dignity of the searched child. For example, a child spends the entire search completely naked even though a majority of the time-consuming steps described above–including searches of hair, ears, mouth, nose, hands, armpits, and toes–do not require complete nudity. The intrusiveness of these strip searches stands in contrast to other searches of juveniles that have been held constitutional and that did indicate extra effort to preserve the privacy and dignity of the searched child. For example, in Smook v. Minnehana County, the Eighth Circuit found it material that the detention center staff required a juvenile to undress only to her undergarments, which “placed her at the same level of undress as if she were at the beach in a swimsuit.” 457 F.3d 806, 811-12 (8th Cir. 2006) (internal quotation and citation omitted). Likewise, in Reynolds v. City of Anchorage, each detained girl was instructed “to remove her blouse and bra, put them back on, and then to remove her bottom clothing and underwear and bend over to allow a visual inspection of her rectal area.” 379 F.3d at 361. Even the juveniles subjected to the highly invasive strip searches at issue in N. G. v. Connecticut may have been provided robes during the search at issue. See 382 F.3d at 228 (noting that the strip search policy was amended in 2002, after plaintiffs were searched, to deauthorize visual inspections of a juvenile’s vaginal and anal body cavities, but not indicating whether use of robes predated the 2002 policy amendment).

B. The Relationship Between the Government Interest and Scope of the Strip Search

Defendants raise valid concerns about their obligations to care for and protect juveniles who are admitted to YCJDC. But the existence of that need, in and of itself, says little about the reasonableness of the search under the Fourth Amendment because a search may be too intrusive in light of the underlying interests justifying it. Accordingly, it is appropriate to ask whether there is a “valid, rational connection between the … regulation and the legitimate governmental interest put forward to justify it.” See Turner v. Safley, 482 U.S. 78, 89, 107 S. Ct. 2254, 96 L. Ed. 2d 64 (1987) (internal quotation omitted) (evaluating the constitutionality of regulations in adult prisons). Even accepting that defendants’ concerns are legitimate, the record does not show that a highly invasive strip search bears a reasonable relationship to the interests defendants identified.

. . .

The existence of less intrusive alternatives is more compelling in the context of a juvenile detention facility than in a prison. Even though the privacy interest of a detained juvenile is less than that of a student, the Constitution still requires some showing that the scope of the search is reasonable in light of a child’s acute vulnerability. Here, far from presenting evidence that the scope of a strip search is a reasonable means of furthering institutional security interests, the YCJDC has presented only vague references to “incidents” in which “drugs, contraband and other illegal items” were discovered during strip searches. (See Vesper Aff. (# 21) P 9.) Defendants have provided no evidence of what items were discovered, how many items were discovered, where these items were discovered, or even a rough estimate of what percentage of searches result in discovery of some sort of contraband. Mr. Vesper never even defines what he means by “contraband and other illegal items.” And defendants have been unable to identify a single instance in which contraband has been found in an area that would have been concealed by a juvenile’s underwear, as opposed to outer clothing.

The record also shows that Yamhill County could employ less intrusive alternatives without undermining its custodial obligations to care for the health and well-being of juvenile detainees. Although Mr. Vesper notes that the YCJDC strip searches have revealed evidence of abuse, self-harm or medical conditions, he identified only a single instance in which a strip search was necessary to uncover a medical condition hidden by a child’s underwear. …

Compare Bull v. City & County of San Francisco, 2010 U.S. App. LEXIS 2684 (9th Cir. February 9, 2010) (en banc) (6-5), panel opinion Bull v. City & County of San Francisco, 539 F.3d 1193 (9th Cir. 2008), permitting broad strip searches of pretrial detainees in the San Francisco jail, posted here.