Seventh Circuit opinion rejecting female prisoners’ lawsuit over invasive searches under attack

A federal court ruling that prison officials did not violate the Constitution when they ordered 200 female prisoners in March to open their vaginal and anal cavities for inspection by guards is “out of line” with the law and will be appealed, an attorney for the women said Monday.

“The Fourth Amendment affords all people a base level protection against the most intrusive of searches by government officials,” said Ruth Brown of Loevy and Loevy, attorney for the women. “This was, for the 200 women, degrading. This is what the Fourth Amendment is designed to protect, in our opinion.”

Brown said the law firm will ask the full Seventh Circuit U.S. Court of Appeals to reconsider the ruling, issued last week by U.S. Circuit Judge Frank H. Easterbrook and joined by U.S. Circuit Judge David Manion.

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The majority ruling states that as long as the guards did not physically touch them, but instead required the prisoners to manipulate their bodies on their own, the prisoners’ rights were not violated.

The women prisoners had been herded to the prison gymnasium for what, it would turn out, was not an emergency but a training exercise for cadets.

There, according to the court record, the women were taken in groups of up to 10 women into a bathroom and adjoining beauty salon where, they were told to strip, then stand naked so close to each other their bodies were touching.

The majority opinion describes what happened next:  “Menstruating inmates had to remove their tampons and sanitary pads in front of others, were not given replacements, and many got blood on their bodies and clothing and blood on the floor. The naked inmates had to stand barefoot on a floor dirty with menstrual blood and raise their breasts, lift their hair, turn around, bend over, spread their buttocks and vaginas, and cough.”

The searches occurred through an open door to the gymnasium from where male guards could watch, according to the court record.

The women had filed the suit contending that their Constitutional rights both under the Eighth Amendment ⁠— barring cruel and unusual punishment ⁠— and the Fourth Amendment ⁠— barring unreasonable searches and seizures. Before trial, U.S. District Judge Richard Mills of the Central Circuit of Illinois dismissed the Fourth Amendment claim, ruling that a visual inspection of a convicted prisoner did not amount to a Fourth Amendment violation.

It was that ruling that Brown appealed to the Seventh Circuit, which has jurisdiction to hear appeals of federal cases originating in Illinois, Indiana and Wisconsin.

U.S. District Judge John Z. Lee who was sitting by designation, dissented from the majority conclusion:  “Because this new rule is not supported by our prior decisions or consistent with established Fourth Amendment jurisprudence, I respectfully dissent,” he wrote.

Lee noted that, according to the record,  “The female correctional officers and cadets conducting the searches made derogatory comments and gestures about the women’s bodies and odors, telling the women that they were ‘dirty bitches,’ ‘fucking disgusting,’ ‘deserve to be in here,’ and ‘smell like death.’ Male correctional officers watched the women from the gym.”

The ruling is in conflict with decisions in other circuits, which recognize greater  Fourth Amendment protections for prisoners.

Acknowledging that the circuits are divided over  whether a prisoner ever has a right to privacy from being viewed naked by a guard, the majority wrote that it was up to the U.S. Supreme Court to review the law: “It has been 35 years since the Justices last considered the extent to which convicted prisoners have rights under the Fourth Amendment while still inside prison walls.”

Until the Supreme Court weighs in again, the majority concluded, “it is best” not to change the Seventh Circuit rulings giving guards great freedom to undertake visual inspections.