Chapman v. Nichols, Nos. 92-5122

• Decision Date: 23 March 1993
• Docket Number: Nos. 92-5122,92-5178
• Citation: 989 F.2d 393
• Parties: Julie CHAPMAN, Plaintiff-Appellee, v. Doug NICHOLS, Defendant-Appellant, and Board of County Commissioners of Creek County, Oklahoma, Defendant. Winey BEAVER, Stephanie Taylor, Jennafer Leone, Plaintiffs-Appellees, v. Doug NICHOLS, Board of County Commissioners of Creek County, Oklahoma, Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 393

989 F.2d 393

Julie CHAPMAN, Plaintiff-Appellee, v. Doug NICHOLS, Defendant-Appellant, and Board of County Commissioners of Creek County, Oklahoma, Defendant.

Winey BEAVER, Stephanie Taylor, Jennafer Leone, Plaintiffs-Appellees, v. Doug NICHOLS, Board of County Commissioners of Creek County, Oklahoma, Defendants-Appellants.

Nos. 92-5122, 92-5178.

United States Court of Appeals, Tenth Circuit.

March 23, 1993.

John L. Harlan of John L. Harlan & Associates, P.C., Sapulpa, OK, for defendant-appellant.

Ron Collier and Teresa A. Simmons, Collier Law Office, Inc., Oklahoma City, OK, for plaintiff-appellees.

Before SEYMOUR, ANDERSON, and EBEL, Circuit Judges.

SEYMOUR, Circuit Judge.

Plaintiffs are four women who were arrested for minor traffic violations, taken to the Creek County Jail in Sapulpa, Oklahoma, and subjected to strip searches notwithstanding the lack of reasonable suspicion to believe they were concealing weapons or contraband. They brought this suit under 42 U.S.C. § 1983 (1988) against Doug Nichols, individually and in his official capacity as Sheriff of Creek County, contending that he violated their Fourth Amendment rights by promulgating the policy under which they were searched. Sheriff Nichols appeals the district court's refusal to grant summary judgment in his favor based on qualified immunity. We affirm. ¹

I.

Plaintiffs were each stopped at separate times by the Oklahoma Highway Patrol for speeding, and were then arrested for driving with suspended drivers licenses. They were taken to the Creek County Jail and held pending release on bail. Upon arrival at the jail, each was subjected to a strip search by a female jail employee in a small private laundry room. According to their deposition testimony, one plaintiff was asked to stand with her hands over her head, see Aplt.App. at 60-64, one was subjected to a visual inspection of her pubic area, see id. at 69-74, one was required to bend over and grab her ankles, see id. at 79-91, and one, who was searched while the door to the laundry room was ajar, had to bend over and pull her panties down to her ankles, see id. at 104-115. It is undisputed that jail officials conducted these searches solely pursuant to an across-the-board strip search policy applied to all jail detainees, and that the officials had no reasonable suspicion that these particular detainees were carrying or concealing weapons or contraband.

Both sides moved for summary judgment. The district court concluded that the law was clearly established at the time of the searches at issue, and that under that law the searches were unconstitutional. The court held accordingly that defendant's qualified immunity defense was not sustainable on summary judgment and denied his motion. The court ruled, however, that "whether an 'objectively reasonable' officer could have believed that conducting the search in private comported with the Fourth Amendment is a question which may have to be submitted to the jury." Aplt.App. at 16. The district court therefore denied plaintiffs' motion for summary judgment against defendant Nichols, individually, as to liability. ²

Sheriff Nichols appeals the denial of qualified immunity, asserting that the policy at issue is not unconstitutional and that he is entitled to qualified immunity in any event because the law was not clearly established. ³ Plaintiffs respond that the policy is unconstitutional, that the law was clearly established, and that the district court therefore erred in holding that fact questions remain on defendant's qualified immunity claim. They further contend that defendant's appeal is frivolous.

II.

We begin our discussion with the Supreme Court case of Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), in which the Court articulated the balancing test applicable to alleged unconstitutional searches.

The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. In each case it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.

Id. at 559, 99 S.Ct. at 1884 (emphasis added).

In this case, it is undisputed that plaintiffs were arrested for minor traffic violations and were awaiting bail, that jail officials had no reasonable suspicion that these particular arrestees were likely to be carrying or concealing weapons or drugs, and that plaintiffs were searched solely because the blanket policy required all detainees to be subjected to a strip search. Every circuit court, including our own, which has considered the above circumstances under the Wolfish balancing test has concluded that a search under these circumstances is unconstitutional. See e.g., Masters v. Crouch, 872 F.2d 1248, 1253 (6th Cir.), cert. denied, 493 U.S. 977, 110 S.Ct. 503, 107 L.Ed.2d 506 (1989); Watt v. City of Richardson Police Dep't, 849 F.2d 195, 199 (5th Cir.1988); Walsh v. Franco, 849 F.2d 66, 68 (2d Cir.1988); Weber v. Dell, 804 F.2d 796, 801 (2d Cir.1986), cert. denied, 483 U.S. 1020, 107 S.Ct. 3263, 97 L.Ed.2d 762 (1987); Ward v. County of San Diego, 791 F.2d 1329, 1332 (9th Cir.1986), cert. denied, 483 U.S. 1020, 107 S.Ct. 3263, 97 L.Ed.2d 762 (1987); Jones v. Edwards, 770 F.2d 739, 742 (8th Cir.1985); Stewart v. Lubbock County, 767 F.2d 153, 156-57 (5th Cir.1985), cert. denied, 475 U.S. 1066, 106 S.Ct. 1378, 89 L.Ed.2d 604 (1986); Giles v. Ackerman, 746 F.2d 614, 617 (9th Cir.1984), cert. denied, 471 U.S. 1053, 105 S.Ct. 2114, 85 L.Ed.2d 479 (1985); Hill v. Bogans, 735 F.2d 391, 394 (10th Cir.1984); Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1273 (7th Cir.1983); Logan v. Shealy, 660 F.2d 1007, 1013 (4th Cir.1981), cert. denied, 455 U.S. 942, 102 S.Ct. 1435, 71 L.Ed.2d 653 (1982).

There can be no doubt that a strip search is an invasion of personal rights of the first magnitude.

It is axiomatic that a strip search represents a serious intrusion upon personal rights. In [Mary Beth G. v. City of Chicago, 723 F.2d 1263 (7th Cir.1983) ] the court referred to strip searches as "demeaning, dehumanizing, undignified, humiliating, terrifying, unpleasant, embarrassing, repulsive, signifying degradation and submission." Mary Beth G., 723 F.2d at 1272. Another court described the indignity individuals arrested for minor offenses experience in the following manner:

The experience of disrobing and exposing one's self for visual inspection by a stranger clothed with the uniform and authority of the state, in an enclosed room inside a jail, can only be seen as thoroughly degrading and frightening. Moreover, the imposition of such a search upon an individual detained for a lesser offense is quite likely to take that person by surprise, thereby exacerbating the terrifying quality of the event.

John Does 1-100 v. Boyd, 613 F.Supp. 1514, 1522 (D.C.Minn.1985).

Justice v. City of Peachtree City, 961 F.2d 188, 192 (11th Cir.1992); see also Boren v. Deland, 958 F.2d 987, 988 n. 1 (10th Cir.1992) ("[A] strip search, regardless how professionally and courteously conducted, is an embarrassing and humiliating experience." (quoting Hunter v. Auger, 672 F.2d 668, 674 (8th Cir.1982)); Thompson v. City of Los Angeles, 885 F.2d 1439, 1446 (9th Cir.1989) ("The feelings of humiliation and degradation associated with forcibly exposing one's nude body to strangers for visual inspection is beyond dispute"); Jones, 770 F.2d at 742 (strip search "intrusive, depersonalizing, and distasteful").

Defendant contends that the invasion posed by his policy is justified by the need for jail security because women detainees must be incarcerated in one cell with the general jail population. However, there is no showing here of a security need that would justify this strip search policy in view of the extent of the invasion of privacy entailed by such a search. "While the need to assure jail security is a legitimate and substantial concern, we believe that, on the facts here, the strip searches bore an insubstantial relationship to security needs so that, when balanced against plaintiffs-appellees' privacy interests, the searches cannot be considered 'reasonable.' " Mary Beth G., 723 F.2d at 1273; see also Giles, 746 F.2d at 617 (jail security needs do not justify strip search absent reasonable suspicion that individual detainee carrying weapons or contraband); Logan, 660 F.2d at 1013. ("An indiscriminate strip search policy routinely applied to detainees such as Logan along with all other detainees cannot be constitutionally justified simply on the basis of administrative ease in attending to security considerations.").

We addressed these same security concerns in Hill. Hill had been stopped for driving with an expired automobile inspection sticker. He was detained after the officer did a routine warrant check and was informed of an outstanding bench warrant for Hill's arrest for failure to appear on charges of speeding and violating a license restriction. When he arrived at jail, he was given a pat-down search and was transferred to the holding area, where he made several phone calls to arrange for bail. In accordance with jail procedures applied to all detainees, Hill was then visually strip searched in a lobby area in front of ten or twelve people.

Although Hill was "briefly intermingled with the prison population," 735 F.2d at 394, we determined that the jail's resulting need for security did not justify the strip search.

No other conceivable justification exists for the strip search in this case. There were no circumstances here indicating that Hill might possess either a weapon or drugs.... [The offenses for which Hill was arrested] are not offenses associated with the concealment of weapons or contraband in a body cavity. In fact, a peculiar aspect of the...