The Ninth Circuit Rules: A Male Prisoner Can Be Searched by Female Guards

On May 18, the Ninth Circuit issued a majority opinion allowing female guards to perform strip searches on male inmates.

The petitioner, William Byrd, a pretrial detainee in jail at the time, was searched for contraband. He and other inmates stood in front of a row of Academy cadets, some of whom were female. Someone in the room held a handheld camera (filming, as it turns out, for the cadets' Video Yearbook, though no footage of this particular search survived). The majority opinion, by Judge Ikuta, describes the search, which followed county regulatons, as follows:

When it was Byrd’s turn, the officers ordered Byrd to walk over to the cadets, stand facing away from them, raise his arms above his head, and spread his legs. O’Connell approached Byrd from behind and conducted the search as follows: She ran her hands across the waistband of Byrd’sboxer shorts and pulled the waistband out a few inches to check for anything hidden or taped inside; she did not look into his boxer shorts. She lightly frisked over his boxer shorts and down the outside of his thigh, stopping at the bottom of the shorts. Through the boxer shorts, O’Connell moved Byrd’s scrotum and penis with the back of her hand in order to frisk his groin, applying light pressure to feel for contraband. She then placed her hand at the bottom of his buttocks, ran it upward over his boxers, and separated the cheeks to search for any contraband taped, placed, or hidden inside.

Byrd's legal argument was based on his Fourth Amendment rights to be free from unreasonable searches and seasures, as well as his Fourteenth Amendment rights to due process and equal protection. The search, he argued, caused him unnecessary pain and humiliation.

Byrd's 1983 equal protection suit was dismissed, since "he fatally 'failed to allege that defendants’ acts or omissions were motivated by discriminatory animus toward' male prisoners". His Fourteenth Amendment argument was rejected, since the search was not proven to have been motivated by punitive intent. The search was thus distinguished from the intrusive searches that the 9th Circuit had struck down in Jordan v. Gardner, 986 F.2d 1521 (9th Cir. 1993), where male guards performed searches on female inmates.

As to the Fourth Amendment argument, the Court builds on Bell v. Wolfish, according to which "when reviewing conditions and restrictions placed on prisoners and pretrial detainees, we must bear in mind the inherent difficulties in managing a detention facility, and that "the problems that arise in the day-to-day operation of a corrections facility are not susceptible of easy solutions'". Therefore, "the 'reasonableness of a particular search is determined
by reference to the prison context.'" The factors in Bell and Turner require the court to take into account the circumstances of the search (measuring the level of intrusiveness), the justification for the search, and the existence of alternatives.

Applying these factors to the current situation, the court explains that cross-gender searches, per se, are not unreasonable: "while we have not foreclosed the possibility that a cross-gender
search could violate an incarcerated person’s constitutional rights, we have noted that 'our prior case law suggests that prisoners’ legitimate expectations of bodily privacy from persons of the opposite sex are extremely limited.' . . . We have never held that a cross-gender search in a prison setting [in itself--H.A.] violated an inmate’s Fourth Amendment rights". Beyond the cross-gender search aspect, the court did not find factors that would make the search unreasonable: "As noted, the jury found that the search was not done in an inappropriate manner. The record indicates that O’Connell wore gloves at all times, and conducted the search professionally and swiftly, finishing in, at most, 60 seconds. The invasion of Byrd’s bodily privacy in this case does not substantially exceed the cross-gender observations and searches we upheld in Michenfelderand Grummet. Moreover, the County has provided a legitimate justification for the cross-gender aspect of the search: the County adduced undisputed evidence that the cross-gender search was justified by its legitimate security and staffing needs, focusing primarily on the shortage of adequate personnel."

Judge Fernandez dissented from the Fourth Amendment aspect of the opinion, writing: "In my view, cross-gender strip searches are generally uncalled for and unreasonable. . . There may be emergency or other situations where a cross-gender strip search is proper, but this case presents no facts to suggest that there was an emergency or some other unique reason for authorizing the search. In fact, the record shows that this sort of search is a regular part of the
jail’s routine, and that there were plenty of men available, who could have conducted the search. . . When all is said and done, I would not think it was reasonable for males to strip search females in this kind of situation, and I do not think it was reasonable to have females strip search males. If our law does approve of it, and the majority opinion cogently reasons that it does, I reluct; the law should change".

This case brings up a whole host of interesting issues. The first one has to do with the role of women in law enforcement. The gender segregation of prisons, and its implications to gender-segregated prison staff, is well documented in Dana Britton's At Work in the Iron Cage. While the work performed by men and women in these settings is similar, there are social forces and stereotypes at work that generate gender inequalities in this particular work environment. The majority opinion seems to be marginally sensitive to this issue, when it says "The determination sought by Byrd, that it is per se unreasonable for a female officer to conduct searches of male inmates when male officers are also present, would significantly limit the usefulness of female officers for meeting a detention facility’s security needs."

The interesting bit, of course, is that these needs to make the workplace an equal playing field, and to allow female guards to perform their work except when there are particular circumstances that disallow identical performance for justified reasons, severely clash with the patriarchal norms that govern much of the inmates' and guards' cultural lives. It is interesting to note, in this context, the double standard regarding the unfortunate fact that many inmates have a history of sexual victimization. In this case, "Byrd states that he suffers from a history of sexual abuse, and therefore the cross-gender aspect of the search was particularly traumatic." However, in Jordan, the same Court struck down searches of female inmates by male guards, "in light of substantial evidence that many of the female inmates had been violently sexually abused prior to their incarceration and were psychologically fragile, and that the cross-gender searches would cause some inmates substantial suffering." This brings up a whole host of questions regarding the role of patriarchy and gender in our sensitivity to issues of sexual abuse.

Finally, as in many other Fourth Amendment cases, this case brings out the question of measuring the "reasonability" of searches and seizures. Part of the court's decision, it seems to me, stems from the fact that they place much more weight on the issue of justification for the search than on issues of proportion and intrusiveness. More generally, one serious problem with Fourth Amendment Analysis is its lesser attention to issues beyond the level of suspicion. If anyone is interested in any of this, Dan Portman and I have written a piece on this, which we call Inequitable Enforcement, which will be presented at the Law and Society Association Annual Meeting next weekend; we'll post it on SSRN at some point next month, and if there's interest, I'm happy to post the link then.