723 F.2d 1263 (7th Cir. 1983), 82-1894, Mary Beth G. v. City of Chicago

Docket Nº:82-1894, 82-1920, 82-2605, 83-1618 and 83-2203.
Citation:723 F.2d 1263
Party Name:MARY BETH G. and Sharon N., Plaintiffs-Appellees, v. CITY OF CHICAGO, Defendant-Appellant. Mary Ann TIKALSKY, Plaintiff-Appellee, Cross-Appellant, v. CITY OF CHICAGO, et al., Defendants-Appellants, Cross-Appellees. Hinda HOFFMAN, Plaintiff-Appellee, v. CITY OF CHICAGO, Defendant-Appellant.
Case Date:November 29, 1983
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 1263

723 F.2d 1263 (7th Cir. 1983)

MARY BETH G. and Sharon N., Plaintiffs-Appellees,

v.

CITY OF CHICAGO, Defendant-Appellant.

Mary Ann TIKALSKY, Plaintiff-Appellee, Cross-Appellant,

v.

CITY OF CHICAGO, et al., Defendants-Appellants, Cross-Appellees.

Hinda HOFFMAN, Plaintiff-Appellee,

v.

CITY OF CHICAGO, Defendant-Appellant.

Nos. 82-1894, 82-1920, 82-2605, 83-1618 and 83-2203.

United States Court of Appeals, Seventh Circuit

November 29, 1983

Argued Sept. 16, 1983.

As Modified on Denial of Rehearing and Rehearing En Banc

Jan. 20, 1984.

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[Copyrighted Material Omitted]

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Mary K. Rochford, Corp. Counsel, Chicago, Ill., for City of Chicago.

G. Flint Taylor, Peoples Law Office, Edward T. Stein, Singer & Stein, Fay Clayton, Sachnoff, Weaver & Rubenstein, Chicago, Ill., for plaintiffs-appellees.

Before BAUER, WOOD, Circuit Judges, and NEAHER, Senior District Judge. [*]

HARLINGTON WOOD, Jr., Circuit Judge.

The four plaintiffs-appellees in these consolidated cases are all women who were arrested for misdemeanor offenses and strip searched by matrons in lockups maintained by the City of Chicago while awaiting the arrival of bail money. The strip searches were conducted in accordance with a policy of the City that existed from 1952 to 1980. That policy required a strip search and a visual inspection of the body cavities of all women arrested and detained in the City lockups, regardless of the charges against the women and without regard to whether the arresting officers or detention aides had reason to believe that the women were concealing weapons or contraband on their persons. The policy did not apply to men, who were subjected to a thorough hand search.

I. BACKGROUND

Three of the plaintiffs-appellees, Mary Beth G., Sharon N., and Hinda Hoffman, were plaintiffs in a class action suit, Jane Does v. City of Chicago, No. 79 C 789 (N.D.Ill. Jan. 12, 1982), filed on March 1, 1979. Plaintiffs in that case alleged that the strip search policy of the City of Chicago was unconstitutional. The parties subsequently entered into an agreement and stipulation in settlement of the plaintiffs' claims for injunctive relief whereby the City was permanently enjoined from instituting strip searches or body cavity searches on women and not on similarly situated men and from performing strip searches of any person charged with a traffic, regulatory, or misdemeanor offense unless police reasonably believed that the arrestee was concealing weapons or contraband. 1 The terms of the agreement and stipulation, set out in an order filed with the district court on March 26, 1980, made clear that the change in policy was not an admission of liability on the part of the defendants.

Thereafter, the plaintiffs moved to sever the issues of the defendants' liability and the constitutionality of the strip search policy; the district court granted this motion. Plaintiffs then moved for partial summary judgment, maintaining that the strip search policy was unconstitutional on its face. The district court agreed with plaintiffs and held that the search policy of the City violated the fourth amendment, as incorporated by the fourteenth amendment, and the equal protection clauses of the fourteenth amendment and the Illinois constitution. Jane Does v. City of Chicago, No. 79 C 789 (N.D.Ill. Jan. 12, 1982). The court ordered that the parties select typical cases to separate out for trial on the issue of plaintiffs' damages. Pursuant to this order, jury trials on the issue of damages were held, and verdicts of $25,000 were returned for plaintiffs Mary Beth G. and Sharon N., and an award of $60,000 was returned for Hinda Hoffman. The City appeals from the district court's determination that the strip search policy was unconstitutional and contests the size of the damage awards.

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The remaining plaintiff-appellee, Mary Ann Tikalsky, commenced her suit on August 16, 1978, naming as defendants two Chicago police officers. Her complaint alleged false arrest and the use of excessive force in violation of the Civil Rights Act. On June 15, 1979, after commencement of the Jane Does class action suit, plaintiff amended her complaint to include a charge of unlawful search and seizure. Named as additional defendants were the City of Chicago and various other officials and officers of the Chicago Police Department. After a jury trial, the defendant police officers were acquitted of the false arrest and use of excessive force charges, but plaintiff prevailed against the City and one individual defendant on the illegal search claim. Plaintiff received compensatory damages in the amount of $30,000. Immediately thereafter, the district court granted judgment notwithstanding the verdict in favor of the individual defendant. The district court also ordered a new trial for the City after the court concluded that the jury had been improperly instructed. The plaintiff appealed the order granting the new trial to this court, and we held that the jury instructions were proper. Tikalsky v. City of Chicago, 687 F.2d 175 (7th Cir.1982). We ordered that the case be remanded to the district court and that the verdict and award against the City be reinstated. On remand, the district court reinstated judgment on the verdict against the City and subsequently awarded plaintiff $2,000 in attorney's fees and $2,426.85 in costs. The City appeals the judgment, and plaintiff cross-appeals from the district court's order respecting the award of attorney's fees and costs.

Although the circumstances surrounding the arrests and detentions of each of the plaintiffs-appellees in these consolidated cases are not identical, the situations involve the following common elements: each woman was arrested for a misdemeanor offense 2 and each was subjected to the strip search policy of the City of Chicago. 3 That policy, as described by the City, required each woman placed in the detention facilities of the Chicago Police Department and searched by female police personnel to:

1) lift her blouse or sweater and to unhook and lift her brassiere to allow a visual inspection of the breast area, to replace these articles of clothing and then

2) to pull up her skirt or dress or to lower her pants and pull down any undergarments, to squat two or three times facing the detention aide and to bend over at the waist to permit visual inspection of the vaginal and anal area. 4

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The strip search policy was not applied to males. Male detainees were subject to a strip search only if the arresting officers or detention aides had reason to believe that the detainee was concealing weapons or contraband. Otherwise, men were searched thoroughly by hand. The male detainee would place his hands against the wall and stand normally while the searching officer, with his fingers, would go through the hair, into the ears, down the back, under the armpits, down both arms, down the legs, into the groin area, and up the front. The officer would also search the waistband and require the detainee to remove his shoes and sometimes his socks. Originally, women detainees were also searched in this manner, but in 1952 the City changed its policy and began conducting the strip searches.

II. CONSTITUTIONAL QUESTIONS

The district court in the Jane Does case found that, as a matter of law, the strip search policy conducted by the City violated the fourth amendment, as applicable to the states through the fourteenth amendment, and the equal protection clause of the fourteenth amendment. The court also determined that the policy violated the equal protection provision of the Illinois constitution respecting gender. Ill. Const. (1970), art. I, sec. 18. 5 The federal constitutional grounds were also raised in the jury trial of plaintiff-appellee Tikalsky and served as a basis for the verdict insofar as the jury relied on them. Because the equal protection provision of the Illinois constitution respecting gender is at least coextensive with the requirements of the fourteenth amendment, People v. Ellis, 57 Ill.2d 127, 311 N.E.2d 98 (1974), we need only discuss the federal constitutional grounds for challenging the strip search policy, as we find both grounds have merit.

  1. Fourth Amendment Ground.

    The fourth amendment of the United States Constitution, deemed incorporated into the fourteenth amendment and applicable to the states, provides that:

    [t]he right of the people to be secured in their persons ... against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause ....

    Because the prohibition announced by the fourth amendment extends to "unreasonable" searches, our task is to decide whether the strip search policy of the City as applied to these plaintiffs-appellees was unreasonable under established fourth amendment principles.

    The Supreme Court has adopted the position that searches of the person are generally impermissible absent a search warrant, which is to issue only on probable cause. New York v. Belton, 453 U.S. 454, 457, 101 S.Ct. 2860, 2862, 69 L.Ed.2d 768 (1980) ("It is a first principle of Fourth Amendment jurisprudence that the police may not conduct a search unless they first convince a neutral magistrate that there is probable cause to do so."). The court has recognized, however, that a warrantless search may be reasonable if the exigencies of the situation compel an exception. Id.

    The City argues that its strip search policy is valid under two recognized exceptions to the warrant requirement. One exception allows warrantless searches incident to custodial arrests. New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981); United States...

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