Monday, January 10, 2011

Cross-Gender Strip Searches

By Mike Dorf

In a very interesting opinion last week in Byrd v. Maricopa Cty Sheriff's Dep't, an en banc panel of the 9th Circuit held that the strip-search of a male pre-trial detainee by a female guard--when there was no emergency and when a male guard was available to perform the search instead--was unreasonable, and thus violated the Fourth Amendment.  In this, the first of two posts on the case, I want to raise the question of what it tells us about the nature of "reasonableness" for Fourth Amendment purposes.  In tomorrow's post, I'll raise questions about equality; specifically, I'll ask whether the decision has implications for women's opportunities as prison guards and the connections between the privacy concerns in Byrd and the privacy rationales that were quite recently still being offered to defend Don't-Ask-Don't-Tell.

At the outset, it's useful to be clear about what was going on in Byrd because there is a disagreement between the majority and the dissent over whether to characterize the particular search at issue as a "strip-search" (as the majority found) or a mere "pat-down" (as the dissent said).  I'm inclined to agree with the majority on this  semantic point.  The important point, though, is not what the search is called but what it involved.  Here is the court's description of the search in question:
When Byrd [the pre-trial detainee] entered the day room, the cadets were lined up and waiting. O’Connell [the female guard] ordered him to turn away from her, spread his feet and raise his arms above his head. Wearing latex rubber gloves, she pulled out Byrd’s waistband a few inches and felt the waistband to make sure nothing was hidden in it. O’Connell did not look inside Byrd’s boxer shorts.
Next, O’Connell placed one hand on Byrd’s lower back holding the back part of the boxer shorts and, with her other hand, searched over his boxer shorts, his outer thigh from his hip to the bottom of the shorts. She then moved her hand from his outer thigh to the bottom of the shorts on his inner thigh and applied slight pressure to feel his inner thigh for contraband. Using the back of her hand, O’Connell moved Byrd’s penis and scrotum out of the way applying slight pressure to search the area. O’Connell then searched the other side using the same technique.
Finally, O’Connell placed her hand at the bottom of Byrd’s buttocks and ran her hand up to separate the cheeks while applying slight pressure, to search for contraband inside his anus. O’Connell estimated that the search lasted ten to twenty seconds, and Byrd estimated that the search took sixty seconds.  After the search was completed, Byrd was directed to go to the opposite end of the day room, and sit facing the wall.
Given the intrusiveness of the search, I could definitely understand if the court had said that it was simply unreasonable, because there was no particularized suspicion as to Byrd.  Rather, the search of Byrd and other detainees was apparently motivated by general suspicion of contraband.  But given the reduced expectation of privacy in a jail (even for pre-trial detainees) and the importance of keeping contraband out of prison, the Ninth Circuit accepts that general suspicion was sufficient to justify a strip-search.  Had the strip-search been performed by a male guard, it would have been reasonable.  However, absent an emergency, the court found the cross-gender strip-search unreasonable.

It's not entirely clear what role concern about sexual assault plays in the court's analysis.  The court cites the 2009 National Prison Rape Elimination Commission Report on the heightened risk of sexual abuse of prisoners and detainees that arises out of cross-gender strip searches (whether by male guards of female prisoners or vice-versa), and seems to connect this risk to the unreasonableness of the procedure.  But the court does not clearly state whether that risk is a privacy harm as such.

In any event, I want to focus on Standard proposed in the Commission Report and invoked by the Ninth Circuit opinion.  The court says that "the standard on this subject strictly prohibits non-medical staff from conducting cross-gender strip and visual body cavity searches—except in the case of emergency—because of their extraordinarily intrusive nature."  What, exactly, is the salience of the qualifier "non-medical?"

One possibility is that this qualifier is meant to invoke a whole different set of intrusions.  If a jail or prison doctor or nurse is conducting a medical examination of a pre-trial detainee or inmate, then the intrusion can be said to be in the detainee's or inmate's own interest, and so there is a weighty interest on the pro-intrusion side.

But I don't think that's the point of the qualifier.  Instead, I think it's there to indicate that a reasonable detainee or inmate will experience a greater invasion of privacy when a guard conducts a strip-search than when a doctor or nurse conducts it.  And I think that is probably accurate as a factual matter.  There remains a question of what normative significance to attach to that fact.

If one imagines being subjected to a cross-gender medical examination that is exactly as instrusive as the strip-search described in the Byrd opinion, and then imagines being subject to the strip-search, I would guess that most people would say that the strip-search by the guard is more of an invasion of privacy.  However, that may be because one is imagining the medical exam occurring in a doctor's examining room with the door closed, while the jail strip-search occurs in the open.

Yet the court seems to be saying something very different (insofar as it is tacitly including an exception to its rule for cross-gender strip searches conducted by medical staff): Namely, the court appears to be saying that even absent an emergency, it would be reasonable (or at least it would be more reasonable) to replace prison guards with medical personnel to conduct the otherwise exactly identical strip-search for contraband.  If so (and I could be over-reading the quoted language, although other courts appear to draw just this distinction), then we might ask why that is.

Perhaps it's because medical professionals are better trained at respecting patients' privacy, but this is hardly inevitable.  We could imagine (and I would hope) that jail and prison guards receive training in how to conduct  strip-searches in the most respectful way possible.  And of course, the detainee himself may have no idea whether the person conducting the strip-search has a nursing or medical degree.  To the extent that what is really going on is that detainees simply feel less of an intrusion when they think that the person inspecting and handling their bodies are medical personnel, the jail could satisfy the Fourth Amendment by dressing guards in lab coats and issuing them stethoscopes whenever they need to conduct strip-searches.

That last suggestion is not entirely tongue-in-cheek.  The Ninth Circuit opinion rests ultimately on the proposition 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." (Brackets in original reflect quotation of earlier cases).  This strikes me as a descriptive proposition masquerading as a moral one.  In our society, people do not like to appear unclothed in front of strangers, that is more so if the strangers are of the opposite sex, but not as much more so if the opposite-sex stranger is a doctor or nurse.  Those are our social norms, I'll admit, but they're not anything like universal principles of justice.  They are more nearly principles of etiquette.  Europeans tend to be much more relaxed about nudity than Americans, just as some traditional and/or religious societies are stricter.

I don't want to say it's a mistake for the courts to key Fourth Amendment reasonableness on somewhat arbitrary social conventions about privacy, but I do think it would bring greater clarity to the doctrine if the courts recognized that that is what they are doing.