{"id":5059,"date":"2011-01-11T10:41:29","date_gmt":"2011-01-06T13:37:50","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2011-01-06T13:37:50","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=5059","title":{"rendered":"CA9: Cross-gender jail strip search during shakedown was unreasonable (6-5 en banc)"},"content":{"rendered":"

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\u2019s Department<\/a>, 2011 U.S. App. LEXIS 86 (9th Cir. January 5, 2011) (6-5 en banc):<\/p>\n

We approach this issue by reiterating our longstanding recognition that \u201c[t]he desire to shield one\u2019s unclothed figure from [the] view of strangers, and particularly strangers of the opposite sex, is impelled by elementary self-respect and personal dignity.\u201d York v. Story<\/a>, 324 F.2d 450, 455 (9th Cir. 1963); see also Michenfelder<\/a>, 860 F.2d at 333 (same); Grummett v. Rushen<\/a>, 779 F.2d 491, 496 (9th Cir. 1985) (distinguishing cross-gender searches that \u201care done briefly and while the inmates are fully clothed, and thus do not involve intimate contact with the inmates\u2019 bodies\u201d) (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 \u201cstunning new Justice Department special report\u201d 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)).<\/p>\n

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\u2019Connell touched Byrd\u2019s 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\u2019s part to \u201cshield [his] unclothed figure from [the] view of strangers … of the opposite sex …\u201d York<\/a>, 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. <\/p>\n

. . .<\/p>\n

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\u2019s 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 \u201cprofessionally,\u201d see Dissenting Opinion, p. 396, we have consistently recognized the \u201c\u2018frightening and humiliating\u2019 invasion\u201d occasioned by a strip search, \u201ceven when conducted \u2018with all due courtesy.\u2019\u201d Way<\/a>, 445 F.3d at 1160, quoting Giles v. Ackerman<\/a>, 746 F.2d 614, 617 (9th Cir. 1984) (per curiam). Furthermore, the dissent\u2019s reliance on the jury\u2019s finding that the manner of O\u2019Connell\u2019s search was appropriate because O\u2019Connell \u201cdid not intentionally squeeze or knead Byrd\u2019s penis or scrotum or improperly touch his anus through his boxer shorts,\u201d Dissenting Opinion, p. 397, ignores the district court\u2019s 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. <\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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