Appeals Court Upholds Inmates’ Bodily Privacy

A person’s Fourth Amendment rights are not completely extinguished upon conviction of a crime, the Seventh Circuit Court of Appeals held recently in overruling two prior cases that suggested otherwise.

In particular, the federal court concluded that the Fourth Amendment protects a convicted person’s right to bodily privacy, though the right is significantly limited.

The case stems from a prison training exercise in which women were forced, among other things, to undergo strip searches and stand for several hours without water or bathroom breaks as part of a training session for prison guards.

The Fourth Amendment guarantees the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”

Circuit Judge Amy J. St. Eve wrote for the en banc (full) court in Henry v. Hulett. The decision reversed a lower district court’s dismissal of a class-action suit alleging Fourth Amendment violations and remanded the case for further proceedings. The lower court found that the women had no right to privacy after conviction.

In the lawsuit, Delores Henry and three other female plaintiffs alleged that strip searches conducted as cadet training violated their Fourth and Eighth Amendment rights. The women filed a class action lawsuit on behalf of more than 200 former and current female inmates at the medium-security Lincoln Correctional Center in Illinois. Wisconsin also is in the Seventh Circuit, so the appeals court’s ruling applies here as well as in Illinois.

The training exercise in 2011 simulated a “mass shakedown,” in which guards search prisoners’ living areas and perform strip searches to find contraband.

No emergency or safety concerns existed on the day the training took place, and the two prison housing units searched were randomly chosen.

A tactical team called “Orange Crush,” including Lincoln correctional officers and cadets from the Illinois Department of Corrections training academy, conducted the mass shakedown. Orange Crush members were outfitted with full riot gear, including helmets, armored vests, military boots, shields, batons and pepper spray.

In the early morning, Orange Crush members banged batons on walls and doors of prison cells, and correctional officers and cadets yelled at inmates to wake up and get in line. Officers and cadets lined up 200 women facing the wall, and cadets handcuffed them as practice. Some elderly women cried in pain after standing handcuffed for a long time.

Officers ordered the women to the prison gym while screaming obscenities at them and calling them sexually derogatory names. In the gym, correctional officers forced the women to stand facing the wall, shoulder to shoulder. Orange Crush members and correctional officers ordered cadets to perform strip searches on groups of four to 10 women at a time. The women in the gym remained standing, with no water or restroom breaks. Some stood for seven hours.

Although female cadets performed the strip searches in a bathroom and beauty shop adjacent to the gym, those spaces were open and visible, allowing male correctional officers and cadets to view the searches taking place.

During the searches, the incarcerated women were ordered to remove all clothing; lift their breasts and hair; turn around, bend over, and spread their buttocks and vaginas; and cough several times. Women stood naked for as long as 15 minutes.

Officers and cadets forced menstruating women to remove feminine hygiene products in full view of others and dispose of the products on the floor or in overflowing garbage cans. Those women did not receive replacement hygiene products and were left to bleed through clothing while waiting in the gym for other searches to finish.

Women being searched stood barefoot on the bathroom floor in the midst of blood and other bodily fluids.

Correctional officers insulted the women, calling them “dirty bitches” and “fucking disgusting” and saying that they or their genitals smelled foul.

The plaintiffs sued the warden, assistant warden, and other supervisors and correctional officers, asserting that the searches constituted cruel and unusual punishment in violation of the Eighth Amendment and were illegal under the Fourth Amendment. The plaintiffs sought damages and injunctive relief prohibiting future group strip searches as cadet training.

U.S. District Judge Richard Mills of the Central District of Illinois certified the class action but granted the defendants’ motion for summary judgment on the Fourth Amendment claim. Mills concluded that under two prior Seventh Circuit cases prisoners had no protected privacy rights regarding visual inspections of their bodies.

The defendants conceded that the Eighth Amendment claim should go to trial, where the women lost.

They appealed only the dismissal of the Fourth Amendment claim.

In July 2019 a divided panel of the Seventh Circuit affirmed Mills’ decision dismissing the Fourth Amendment claim.

In 2020 the full appellate court reheard the case and reversed. Only U.S. Circuit Judge Frank H. Easterbrook dissented.

Citing U.S. Supreme Court precedent, St. Eve wrote that determining whether a search is reasonable under the Fourth Amendment involves balancing the need for the particular search against the invasion of personal rights that occurs.

St. Eve pointed out that the Supreme Court has not yet determined whether convicted individuals maintain a reasonable expectation of privacy in their bodies regarding visual strip searches. In Bell v. Wolfish, decided in 1979, the Supreme Court assumed without deciding that inmates retained at least some Fourth Amendment rights. And in Hudson v. Palmer, decided in 1984, the Supreme Court held that inmates have no Fourth Amendment rights regarding searches of possessions and prison cells.​

These cases leave open the question of whether, and to what extent, prisoners maintain a right to privacy in their bodies, St. Eve wrote. She pointed to multiple instances when the Supreme Court said the privacy interest in one’s body is greater than the privacy interest in one’s property.

St. Eve cited decisions from 10 of the 11 regional courts of appeals recognizing a prisoner’s limited Fourth Amendment right to bodily privacy during visual inspections. Only the Seventh Circuit was missing from the list.

Instead, the Seventh Circuit had announced in Johnson v. Phelan in 1995 that under Hudson any Fourth Amendment right to privacy ceased upon conviction. Then in King v. McCarty in 2015 the Seventh Circuit attempted to create a bright-line rule that convicted individuals retain a privacy right regarding physical intrusions into their bodies (such as during digital rectal probes or catheterizations) but not visual inspections.

Henry overrules Johnson and King to the extent those cases found the Fourth Amendment inapplicable to visual bodily searches.

Although certain rights yield to the institutional needs of prison facilities, incarcerated persons retain “’rights not fundamentally inconsistent with imprisonment itself or incompatible with the objectives of incarceration,’” St. Eve wrote, quoting Hudson.

The question boils down to “whether an inmate’s expectation of bodily privacy ‘is the kind of expectation that ‘society is prepared to recognize as reasonable'”, she said, again quoting Hudson.

Society is prepared to recognize some level of bodily privacy for those who are incarcerated, St. Eve said. She noted that strip searches are demeaning, dehumanizing, humiliating, and degrading, and the right to be free from strip searches and body inspections is basic to the concept of privacy.

Although prison security requires monitoring of prisoners’ cells, the same is not true of the individuals’ unclothed bodies, she wrote. “We therefore join every other circuit to have addressed the question and hold that the Fourth Amendment protects (in a severely limited way) an inmate’s right to bodily privacy during visual inspections, subject to reasonable intrusions that the realities of incarceration often demand,” St. Eve continued.

The Fourth Amendment “protects prisoners from searches that may be related to or serve some institutional objective, but where guards nevertheless perform the searches in an unreasonable manner, in an unreasonable place, or for an unreasonable purpose,” she said.

St. Eve noted that a court may give less deference to an administrator’s decision to conduct a search as a training exercise as opposed to a response to immediate security concerns. The Fourth Amendment right to bodily privacy coexists with rights under the Eighth Amendment, St. Eve wrote.

The court’s holding applies to searches of convicted persons as well as pretrial detainees.

The appeals court did not go so far as to require a jury trial upon remand of the plaintiffs’ Fourth Amendment claim. Instead, the court directed Judge Mills to conduct a “reasonableness analysis” of the plaintiffs’ evidence: did the plaintiffs provide sufficient evidence that the searches were unreasonable considering the scope of the intrusions, the place of the searches and manner in which they conducted, and the justification for them?

The court also indicated that on remand the defendants could raise the qualified immunity defense, even though they waived the defense on summary judgment the first time.

The qualified-immunity defense protects government officials from liability for civil damages if their conduct did not violate “clearly established” constitutional rights of which a reasonable person would have known. To be clearly established, a right must have been dictated by controlling authority or a consensus of persuasive cases. “The right must be established not as a general proposition, but in a particularized manner so its contours are clear to a reasonable official,” St. Eve wrote.

Easterbrook alone dissented from the opinion. In his view, a conviction extinguishes all of a person’s Fourth Amendment rights. An incarcerated individual must rely solely on the Eighth Amendment to challenge strip searches, he said.

Margo Kirchner writes for a blog for Wisconsin Justice Initiative, whose mission is “To improve the quality of justice in Wisconsin by educating the public about legal issues and encouraging civic engagement in and debate about the judicial system and its operation.