CA9: Cross-gender jail strip search during shakedown was unreasonable (6-5 en banc)

Cross-gender jail strip search during a cellblock shakedown that involved manipulation of genitals through underwear was unreasonable under the Fourth Amendment. Byrd v. Maricopa County Sheriff’s Department, 2011 U.S. App. LEXIS 86 (9th Cir. January 5, 2011) (6-5 en banc):

We approach this issue by reiterating our longstanding recognition that “[t]he desire to shield one’s unclothed figure from [the] view of strangers, and particularly strangers of the opposite sex, is impelled by elementary self-respect and personal dignity.” York v. Story, 324 F.2d 450, 455 (9th Cir. 1963); see also Michenfelder, 860 F.2d at 333 (same); Grummett v. Rushen, 779 F.2d 491, 496 (9th Cir. 1985) (distinguishing cross-gender searches that “are done briefly and while the inmates are fully clothed, and thus do not involve intimate contact with the inmates’ bodies”) (emphasis added). It is not surprising that a connection has been made between cross-gender searches and the level of sexual impropriety between inmates and corrections personnel. See, e.g., Nicholas D. Kristof, Op-Ed., Kids in Crisis (Behind Bars), N.Y. Times, Jan. 28, 2010, at A33 (discussing a “stunning new Justice Department special report” finding that cross-gender assignments in prisons foster abuse of inmates by male and female officers); Connie Rice and Pat Nolan, Op-Ed, Policing Prisons, L.A. Times, Apr. 5, 2010, at A13 (citing to the June, 2009, National Prison Rape Elimination Commission Report (Commission Report)).

Applying the Bell factors in the context of our precedent recognizing the privacy interest of inmates in their personal dignity, giving credence to the compelling findings made by the Commission, and acknowledging the applicable accrediting standards, we conclude that the cross-gender strip search of Byrd was unreasonable as a matter of law. O’Connell touched Byrd’s inner and outer thighs, buttocks, and genital area with her latex-gloved hand through very thin boxer shorts. She moved his penis and scrotum in the process of conducting the search. The scope of this intrusion totally thwarted any desire on Byrd’s part to “shield [his] unclothed figure from [the] view of strangers … of the opposite sex …” York, 324 F.2d at 455. The scope of the intrusion in this case far exceeds searches we have previously sanctioned and weighs in favor of a finding of unreasonableness.

. . .

The manner in which the search was conducted weighs in favor of a determination of unreasonableness. Byrd was searched by a female cadet who was dressed in jeans and a white t-shirt. Other than the name printed on the back of the t-shirt, the officer who conducted Byrd’s search was unidentified. Ten to fifteen non-participating officers watched the strip search, and at least one person videotaped the search. Although the dissent relies on the fact that the search was conducted “professionally,” see Dissenting Opinion, p. 396, we have consistently recognized the “‘frightening and humiliating’ invasion” occasioned by a strip search, “even when conducted ‘with all due courtesy.’” Way, 445 F.3d at 1160, quoting Giles v. Ackerman, 746 F.2d 614, 617 (9th Cir. 1984) (per curiam). Furthermore, the dissent’s reliance on the jury’s finding that the manner of O’Connell’s search was appropriate because O’Connell “did not intentionally squeeze or knead Byrd’s penis or scrotum or improperly touch his anus through his boxer shorts,” Dissenting Opinion, p. 397, ignores the district court’s ruling that the cross-gender aspect of the search was constitutional as a matter of law. Thus, the jury was not deciding whether the manner of the search was appropriate despite being performed by a member of the opposite sex.