953 F.2d 1137 (9th Cir. 1992), 90-35307, Jordan v. Gardner

Docket Nº:90-35307, 90-35552.
Citation:953 F.2d 1137
Party Name:Nina JORDAN; Susan Bagley; Sharon Hanson; Sandra Entz; Yvonne Wood, Plaintiffs-Appellees, v. Booth GARDNER; Chase Riveland; Lawrence Kincheloe; Eldon Vail; Richard Affresio, Defendants-Appellants, and Washington State Corrections Employees Association, Defendant-Intervenor.
Case Date:January 10, 1992
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1137

953 F.2d 1137 (9th Cir. 1992)

Nina JORDAN; Susan Bagley; Sharon Hanson; Sandra Entz;

Yvonne Wood, Plaintiffs-Appellees,


Booth GARDNER; Chase Riveland; Lawrence Kincheloe; Eldon

Vail; Richard Affresio, Defendants-Appellants,


Washington State Corrections Employees Association,


Nos. 90-35307, 90-35552.

United States Court of Appeals, Ninth Circuit

January 10, 1992

Argued and Submitted Feb. 5, 1991.

As Amended April 2, 1992.

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Therese M. Wheaton, Asst. Atty. Gen., Corrections Div., Olympia, Wash., for defendants-appellants.

Karl Nagel, Aitchison & Hoag, Walla Walla, Wash., for defendant-intervenor.

Timothy K. Ford, MacDonald, Hoague & Bayless, Seattle, Wash., for plaintiffs-appellees.

Mary Megan McLemore, Preston, Thorgrimson, Shidler, Gates & Ellis, Bellevue, Wash., for plaintiff-intervenor.

Appeal from the United States District Court for the Western District of Washington.

Before WALLACE, Chief Judge, O'SCANNLAIN, Circuit Judge, and BURNS, [*] District Judge.

WALLACE, Chief Judge:

Gardner and other officials connected with the Washington Corrections Center for Women (prison officials) appeal from the district court's order enjoining them from implementing a policy which involves routine and random cross-gender pat searches. The prison officials argue that the district court erred by holding that the searches violate inmates' first, fourth, and eighth amendment rights. The district court had jurisdiction pursuant to 28 U.S.C. § 1343. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291. We reverse.


The Washington Corrections Center for Women (WCCW) is an all-female institution which houses approximately 270 convicted felons, classified at the minimum, medium, and maximum security levels. More than half of the incarcerated women are violent offenders; one out of five are in prison for murder. In addition, fifty percent of the inmates have a history of drug abuse, and twenty-five percent have an alcohol dependency. The prison is currently operating about 60% over capacity.

In January 1989, Vail took over as the new superintendent of WCCW. One of his responsibilities was to improve the security in the facility. As part of the security

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overhaul, Vail installed a metal detector and directed the guards to perform periodic room searches. In order to control the movement of contraband through the facility, Vail decreased the number of routine strip searches, but implemented a policy of random pat searches of the inmates. Vail required both male and female guards to perform these searches.

The pat search is conducted on fully clothed inmates, and lasts between 45 seconds and one minute. During the search, guards stand next to the inmates, and quickly run their hands over the inmates' body. Contact with the breasts and crotch is brief and restricted. 1

On July 5, 1989, the new search policy became effective, and a handful of inmates were pat-searched by male guards. A few hours later, certain inmates filed a pro se complaint in federal court, alleging that the cross-gender searches were unconstitutional. The district judge granted the inmates' motion for a preliminary injunction, and the case was placed on an expedited trial schedule. After hearing testimony from all parties, the district judge held that the searches were constitutionally impermissible, and permanently enjoined the practice.


We review the district court's findings of fact for clear error. United States v. Benny, 786 F.2d 1410, 1419 (9th Cir.), cert. denied, 479 U.S. 1017, 107 S.Ct. 668, 93 L.Ed.2d 720 (1986). Conclusions of law are reviewed de novo. United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). The district court's conclusion that the searches are unconstitutional is a mixed conclusion of law and fact, which we review de novo. Id. at 1201-04; Friedman v. Arizona, 912 F.2d 328, 331 (9th Cir.1990) (Friedman ), cert. denied, --- U.S. ----, 111 S.Ct. 996, 112 L.Ed.2d 1079 (1991).


In support of their claim that the searches violate their first amendment rights, two inmates testified that their religion prohibits them from being touched by men who are not their husbands. An expert witness corroborated this claim. The district judge found this testimony credible, and concluded that the searches violated at least some inmates' sincerely held religious beliefs.

A prison regulation which impinges on first amendment rights is valid if it is "reasonably related to legitimate penological interests." Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 2261, 96 L.Ed.2d 64 (1987) (Turner ). Four factors are relevant in assessing the reasonableness of the regulation at issue. "First, there must be a valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it." Id. (internal quotation omitted). Second, it should be determined "whether there are alternative means of exercising the right that remain open to prison inmates." Id. at 90, 107 S.Ct. at 2262. "A third consideration is the impact accommodation of the asserted constitutional right will have on guards and other inmates." Id. "Finally, the absence of ready alternatives is evidence of the reasonableness of a prison regulation." Id.

In analyzing the inmates' first amendment claims, the district court held that there was a rational connection between the search policy and security interests (factor one). The court also found that altering the search policy would have an effect throughout the prison (factor three). However, the court found that there were ample alternatives to the search

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policy (factor four), and concluded that the prison's interest in the regulation was outweighed by the fact that the inmates had no other means of observing their religious objections to the search (factor two). Based upon these latter two determinations, the district court concluded that there had been a first amendment violation. We agree with the district court's analysis of factors one and three, but conclude that the judge erred in his analysis of search alternatives (factor four) and lack of other means of religious observation (factor two).

The inmates presented no evidence demonstrating ready alternatives to the search policy. However, they contend that they "did not have to offer possible alternatives; the evidence showed that there were real alternatives already in place." This argument misconstrues Turner. Pointing to alternatives that exist does not satisfy the inmates' burden of proving that these alternatives involve little or no cost. Id. at 90-91, 107 S.Ct. at 2262 (prisoner must "point to an alternative that fully accommodates the prisoner's rights at de minimis cost to valid penological interests"); O'Lone v. Estate of Shabazz, 482 U.S. 342, 349-50, 107 S.Ct. 2400, 2404-05, 96 L.Ed.2d 282 (1987) (O'Lone ) (reasonableness of prison regulation does not hinge on it being the least restrictive alternative).

The inmates direct us to no evidence in the record, and we have found none, which substantiates their claim that alternatives to the search policy cost the prison absolutely nothing. To the contrary, prison officials consistently testified that requiring women to perform all searches would "have adverse effects on the institution." O'Lone, 482 U.S. at 352, 107 S.Ct. at 2406. For example, Vail testified at length that a single sex search policy created a number of labor problems and conflicted with the requirements of the collective bargaining agreement. Vail also testified that requiring women to perform all searches made the pat searches more predictable and less effective for controlling the movement of contraband through the facility. Finally, Vail pointed out that pulling women off their posts to perform searches in other areas of the prison could create additional security problems in terms of leaving that post vacant, and also by creating delays in moving inmates through the facility. This testimony rebuts the inmates' arguments that alternatives to the search policy are costless. See id. at 352-53, 107 S.Ct. at 2406-07 ("concerns of prison administrators" demonstrate lack of easy alternatives to prison policy).

It may be that the inmates and the district court misapplied the burden of proof. In his oral decision, the judge stated:

I was waiting to hear [Superintendent Vail] say that these kinds of searches were necessary for the internal security of the prison, that they had to be done, that they were in some way crucial. He did not say that. He testified about a lot of things, the sum total of which I concluded to be that it would be better and easier to run the prison as it ought to be run if he could have these cross-gender pat searches.

Any such requirement that prison officials prove that the searches were "crucial" would be inconsistent with the reasonableness standard of Turner. See O'Lone, 482 U.S. at 350, 107 S.Ct. at 2405 ("the [court erred] when it established a separate burden on prison officials to prove 'that no reasonable method exists by which [prisoners'] religious rights can be accommodated without creating bona fide security problems' "). In the face of evidence that it is "better and easier" for the prison to allow the cross-gender searches, the last Turner factor weighs in favor of concluding that the searches are constitutional. See Turner, 482 U.S. at 90-91, 107 S.Ct. at 2262-63.

Turning to the district court's factor two analysis, it is true that the inmates had no alternative means of observing their religious objections to the searches. But this alone does not weigh...

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