CA8: Video recording bathroom stalls of civilly committed sex offenders violates Fourth Amendment

Putting video camera over bathroom stalls of the Iowa Civil Commitment Unit for Sex Offenders violated the inmates’ reasonable expectation of privacy. The recordings were not monitored in real time. Arnzen v. Palmer, 713 F.3d 369 (8th Cir. 2013):

A search occurs under the Fourth Amendment when, as relevant here, “the government violates a subjective expectation of privacy that society recognizes as reasonable.” Kyllo v. United States, 533 U.S. 27, 31-33, 121 S. Ct. 2038, 150 L. Ed. 2d 94 (2001); see also United States v. Jones, 132 S. Ct. 945, 950, 181 L. Ed. 2d 911 (2012). “[I]nvoluntarily civilly committed persons retain the Fourth Amendment right to be free from unreasonable searches that is analogous to the right retained by pretrial detainees.” Beaulieu v. Ludeman, 690 F.3d 1017, 1028 (8th Cir. 2012). Although the expectation of privacy shared by involuntarily civilly committed persons and pretrial detainees is of a “diminished scope,” see Bell v. Wolfish, 441 U.S. 520, 559, 99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979), neither our court nor the Supreme Court has ever outlined exactly what expectation of privacy these persons reasonably have, outside of our holding that detainees do not have a reasonable expectation of privacy in their jail cells, see United States v. Hogan, 539 F.3d 916, 923 (8th Cir. 2008). We believe, though, that single-person bathrooms (intended for functions “‘traditionally shielded by great privacy'”) are inherently different from cells, and that a civilly committed person has a reasonable expectation of privacy in a single-person bathroom when there is no immediate indication that it is being used for purposes other than those ordinarily associated with bathroom facilities. … We therefore believe that by capturing images of patients while they occupy single-user bathrooms, CCUSO violated its patients’ reasonable expectation of privacy, thus conducting a search under the Fourth Amendment, irrespective of whether there is some chance that those images will not be viewed, see Kyllo, 533 U.S. at 31-33.

After we determine that the government’s action is indeed a search, as we did here, we apply a so-called “balancing test” to determine whether the search or seizure of involuntarily committed individuals is reasonable, considering the “‘scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.'” See Serna v. Goodno, 567 F.3d 944, 949 (8th Cir. 2009), cert. denied, 558 U.S. 972, 130 S. Ct. 465, 175 L. Ed. 2d 312 (2009) (quoting Bell, 441 U.S. at 559). We “must defer to the judgment of correctional officials unless the record contains substantial evidence showing their policies are an unnecessary or unjustified response to problems of institutional security.” Beaulieu, 690 F.3d at 1029 (internal quotation marks and citation omitted).

The administrators point to our precedents allowing strip searches of civilly committed individuals for the purpose of finding contraband, see id. at 1027-30; Serna, 567 F.3d 947-48, 952-56, and argue that their placement of the video cameras in the current circumstances is as necessary and justified as the strip searches in those cases. But the justification for those searches is quite different from the one offered for the video cameras here. In the cases the administrators rely on, the searches were meant to prevent dangerous contraband from entering the facilities, an immediate risk that was most easily prevented by strip searches. And we cautioned in Serna that if “the triggering evidence had been a prohibited but relatively benign object, … it would have seemed, on balance, less reasonable to move quickly towards a method of searching that is so highly and personally invasive,” id. at 951. Here, however, neither the “triggering evidence” nor the means to prevent its harms are analogous to those in the earlier cases. Although unmonitored cameras may sometimes deter illicit behavior and help with investigations, they do not provide the administrators with immediate alerts concerning patient safety or directly prevent assaults or dangerous acts. They are instead an after-the-fact investigative tool: By the time the video is viewed, the harm has already happened.

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