Building a framework: How to write a solid ‘strip search’ policy

This is a continuance of Case studies: When strip searches go wrong.

For an agency to mitigate the legal and financial fallout associated with the possible litigation surrounding strip searches, they must develop and institute a solid policy which incorporates a multitude of legal precedents.

Bill of Rights
When drafting a strip search policy it is important to understand the 4^th Amendment to The Constitution. The 4^th Amendment is the foundation upon which all laws and court rulings regarding strips searches are built. Furthermore, the right against unreasonable search is the most likely right to be cited in a lawsuit stemming from a strip search.

4^th Amendment: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Because the litigant is most likely to argue that the search was unreasonable, it is important to lay a framework which addresses what constitutes a reasonable search. Fortunately there are many sources upon which we can build this framework.

Prison Rape Elimination Act (PREA)
The framework of any quality strip search policy should begin with the Prison Rape Elimination Act. This Federal law addresses most, if not all aspects of gender related issues in a correctional environment. PREA addresses strip searches in great detail. Section 115.6 of PREA defines a strip search as:

…a search that requires a person to remove or arrange some or all clothing so as to permit a visual inspection of the person’s breasts, buttocks, or genitalia.

Section 115.15 forbids cross-gender viewing of “…breasts, buttocks, or genitalia”. This restriction applies to strip searches and all other activities absent exigent circumstances. PREA should be utilized as a foundation of least restrictive standards.

State Statutes
While PREA forms a solid foundation for strip search policy, your state’s statutes may be more or less restrictive than that of PREA. In the case of Holmes v LaSalle County, the definition of a strip search as provided by Illinois state statutes is far more restrictive than that of PREA. The statute continues further, prohibiting strip searches of persons charged with less serious offences, a factor which the Supreme Court has held is inconsequential to the purpose of strip searches: contraband control. Despite this ruling it is important that your policy adheres to the most restrictive laws applicable to the jurisdiction in which your agency operates.

For those agencies which operate free of state law regarding strip searches, the Supreme Court routinely defers to the expertise of correctional professionals in the operational efficiency and security of their facilities.

Florence v. Board of Chosen Freeholders of County of Burlington

In this decision the Supreme Court ruled that jails and prisons “have a significant interest in conducting a thorough search as a standard part of the intake process”. Florence was arrested by a New Jersey state trooper for an outstanding warrant for failure to pay a fine. As part of the intake process Florence was subject to a strip search.

Upon transfer to and intake into a second jail facility, Florence was again subject to a strip search. This was a standard procedure for all detainees. Florence sued alleging Fourth and Fourteenth Amendment violations arguing that “persons arrested for minor offenses cannot be subjected to invasive searches unless prison officials have reason to suspect concealment of weapons, drugs, or other contraband”. The Supreme Court ruled in favor of the County of Burlington stating:

…the search procedures at the county jails struck a reasonable balance between inmate privacy and the needs of the institutions, and thus the Fourth and Fourteenth Amendments do not require adoption of the framework and rules petitioner proposes.

The court continued its support of correctional officials stating:

Maintaining safety and order at detention centers requires the expertise of correctional officials, who must have substantial discretion to devise reasonable solutions to problems.

Bell v. Wolfish
In this case the Supreme Court upheld a policy in federal detention facilities which required inmates returning from contact visitation “to expose their body cavities for visual inspection as a part of a strip search”.

Turner v. Safley
Here the court ruled that a policy which encroaches upon the constitutional rights of an inmate shall be upheld “if it is reasonably related to legitimate penological interests.”

Incorporating these and other legal precedents in your agency’s strip search policy will help to ensure that the frequent points of contention often cited in lawsuits have already been addressed.

Drafting a policy
While no policy can ever be written which will be all encompassing, there are some fundamental concerns which must be addressed when writing a strip search policy. The policy should:

Satisfy the 4^th Amendment by addressing the “reasonableness” for the search

• Clearly define what a strip search is
• Be based upon federal law
• Incorporate Supreme Court rulings
• Incorporate District Court rulings applicable to your agency
• Consider the rulings of other District Courts
• Incorporate state statutes
• Defer to the most restrictive of Federal and State laws
• Provide contingencies for exigent circumstances
• Prohibit the use of a strip search as a punitive measure

One must also consider how this policy will affect current policies and procedures. Using the case of Byrd v. MCSO for example, is your policy regarding pat or frisk searches written in a way which may cause future conflicts? Could the outcome have been different had MCSO’s contraband policy defined a frisk search as examining an inmate by inspecting his clothing, and feeling the contours of the clothed portions of his body? Does your policy take into consideration other times when procedures could be interpreted as a strip search? Is the removal of clothing incident to placement in a safe cell outlined? What about dress out procedures?

Often times these circumstances are overlooked because the primary focus may not be contraband related. Despite what the primary purpose may be, isn’t contraband control still one of the factors which determine how we conduct these tasks? Make sure to take a step back and look at the bigger picture, it may be the factor that keeps your agency out of court.

While experience has taught most of us in this profession that people will sue for anything and everything, a well-crafted policy is the first line of defense against litigation. By adhering to the above criteria, one should be able to write a well-crafted policy which, when implemented, will place their agency in a better position to defend against or avoid future litigation.