The women did not understand why this was happening.
Early one March morning inside an Illinois prison, a tactical unit armed with batons and shields stormed two women’s housing units to round up about 200 handcuffed inmates and march them to a gymnasium.
Once in the gym, they stood facing the wall for more than an hour, still unsure why, until the guards started taking groups of four to 10 into the adjoining bathroom and beauty shop. There, they were ordered to strip. Standing shoulder to shoulder, women on their periods were asked to remove their tampons and pads. Some stood bleeding on themselves or the floor. They were ordered to lift their breasts and hair, to cough and squat, and then, finally, to bend over and spread open their vaginal and anal cavities.
The bathroom had no doors and was visible from the gym, and the beauty shop’s door was open too, allowing male guards to see the naked prisoners whenever they walked past, or as they deliberately stared at them from afar, according to a federal complaint.
Later, the women discovered why the Lincoln Correctional Center guards had ordered the humiliating mass strip search: It was just a training exercise for incoming cadets.
Now, after eight years of litigation, the U.S. Court of Appeals for the 7th Circuit has ruled in a divided 2-1 opinion that the entire 2011 episode was legal, citing binding precedent within the circuit. Because the guards didn’t physically probe the women while conducting the visual body cavity searches, the judges ruled, the women’s Fourth Amendment rights to privacy weren’t violated.
The dissenting judge, U.S. District Judge John Z. Lee, an Obama appointee, said the case illustrated a need for high courts to re-examine prisoners’ bodily privacy rights, especially when they are forced to reveal not only their naked bodies, but the inside of them — and the purpose is not for security.
“Surely a ‘training’ justification need not be treated with the same level of deference as a search conducted due to concerns over smuggled weapons or other contraband?” he questioned. “It is rationales like this — that fall somewhere between legitimate security concerns and unjustified harassment — that suggest the continuing need for the Fourth Amendment even in prisons.”
Circuit judges Frank H. Easterbrook and Daniel A. Marion, both Reagan appointees, ruled in the majority.
The disagreement among federal courts about the extent of prisoners’ privacy rights during invasive searches couldn’t be more clear this week. On Tuesday, the same day that the 7th Circuit ruled the mass strip search in Illinois did not violate the inmates’ rights, Los Angeles County settled a 2010 lawsuit for $53 million after a judge found that the county jail’s mass visual body cavity searches did violate female inmates’ Fourth Amendment rights. It was Los Angeles County’s largest settlement in history, the Los Angeles Times reported.
In that case, on a regular basis, entire busloads of women returning to the Century Regional Detention Facility from court were herded into a cold bus garage, lined up along the wall and ordered by female guards to strip. As in the Illinois case, they had to remove their tampons or pads in front of others. They were ordered to bend over, reach behind and “spread open your vagina lips” while coughing, according to the judge’s ruling. All the while, some of the guards made degrading comments at the women, the lawsuit alleged. Others laughed.
"They wanted to make us feel powerless,” Jessica Almaraz, 34, told the newspaper. “Whatever they said went, even if it meant making you feel like you’re not human.”
U.S. District Judge Stephen V. Wilson, who presides within the 9th Circuit, ultimately found that the searches were unconstitutional because they were invasive and held in a group setting without any attempt to mitigate the humiliation. He called the “labia lift” body cavity search “one of the most invasive procedures” in prisons, and found that the county easily could have installed privacy curtains for $8,000. Instead, for seven years, the county said it was more “cost-effective” and safer for guards without them, according to Wilson’s ruling.
“Certainly it was $8,000 cheaper to not install privacy curtains,” Wilson wrote, “yet this is an epitome of a weak justification when compared to the significant constitutional rights at issue.”
The county’s settlement did not admit wrongdoing, and the county insisted it settled only to avoid future legal costs. Thousands of former inmates are eligible to collect a share of the $53 million, the Times reported.
Prisoners’ privacy rights are restricted, but courts typically agree that they retain a “reasonable expectation of privacy” for the insides of their bodies. For example, the 7th Circuit has found that involuntarily inserting a catheter in a prisoner and forcing one to submit to a rectum search by a guard each triggered Fourth Amendment protections.
Lee, in his dissent in the Illinois case, said he had a hard time seeing why forcing women to spread open their private parts, especially in plain view of men, wouldn’t follow the same logic as those cases.
“The distinction between those cases and this one — in which inmates were ordered to probe their own body cavities and subject them to visual inspection — is difficult to discern,” he wrote, adding that “it seems odd ... to make the question of whether a prisoner has a reasonable expectation of privacy under the Fourth Amendment in the integrity of his or her intimate body cavities dependent on who it is that does the probing or penetrating."
Women subjected to the search said they were so shaken that when they were taken to the cafeteria for lunch hours later, they couldn’t eat. The women said that as the guards searched them, they made “derogatory comments and gestures about the women’s bodies and odors,” saying they “smell like death,” according to the ruling.