Sterling v. Cupp

• Decision Date: 25 February 1980
• Docket Number: No. 108452,108452
• Parties: , 22 Empl. Prac. Dec. P 30,797 David J. STERLING, Thomas E. Capps, and Wilbur G. Hixson, Respondents, v. Hoyt C. CUPP, Robert J. Watson, and Brillante Murphy, Appellants, Nedra Bagley, Defendant, Janice Derr, Lauritto Trujillo, Marcia Rovai, Brenda Diabala, Sandra Rushmore, and Dorothy Discher, Intervenors-Appellants. ; CA 13246. . *
• Court: Oregon Court of Appeals

Page 206

607 P.2d 206

44 Or.App. 755, 22 Empl. Prac. Dec. P 30,797

David J. STERLING, Thomas E. Capps, and Wilbur G. Hixson, Respondents, v. Hoyt C. CUPP, Robert J. Watson, and Brillante Murphy, Appellants Nedra Bagley, Defendant Janice Derr, Lauritto Trujillo, Marcia Rovai, Brenda Diabala, Sandra Rushmore, and Dorothy Discher Intervenors-Appellants.

No. 108452; CA 13246.

Court of Appeals of Oregon, In Banc. ^*

Argued and Submitted Sept. 10, 1979.

Resubmitted In Banc Feb. 14, 1980.

Decided Feb. 25, 1980.

J. Scott McAlister, Asst. Atty. Gen., Salem, argued the cause for appellants. With him on the brief were James A. Redden, Atty. Gen., Walter L. Barrie, Sol. Gen. and Barbara A. Brainard, Certified Law Student, Salem.

Jossi Davidson, Salem, argued the cause and filed the brief for respondents.

Terry A. Pressler, Salem, argued the cause and filed the brief for intervenors-appellants.

GILLETTE, Judge.

Plaintiffs are male inmates of the Oregon State Penitentiary (OSP). They sought to enjoin the defendant officials of the Corrections Division (Division) from assigning female correctional personnel "to duties which include frisking male prisoners, except in an emergency situation." The trial court granted the relief sought. Defendants, and certain female corrections officers who are intervenors, appeal. We affirm.

Beginning relatively recently, at least in part out of concern about requirements of federal and state legislation prohibiting discrimination in employment because of sex, the Division assigned female guards to jobs at OSP which involve direct contact with male inmates. Among the duties which the jobs entail are frisks or body searches of clothed inmates. The searches are brief in duration apparently lasting about 30 seconds but involve some touching of genital and anal areas through clothing. They are carried out randomly and have the objectives of preserving security by locating contraband. "Probable cause" is not a prerequisite to the performance of a search, and plaintiffs do not contend that searches of this kind when conducted by male guards are unnecessary to prison security or are unreasonable. Their contention is that the physical contact by female guards violates their constitutional right to privacy. ¹

In Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974), the Supreme Court stated that the constitutional rights of inmates must be balanced against "legitimate penological objectives of the corrections system." 417 U.S. at 822, 94 S.Ct. at 2804. That statement is particularly apposite to privacy rights of inmates, who inherently and necessarily enjoy very little privacy and are subject to intrusive ongoing supervision by corrections personnel. In recent years, there have been several cases from other jurisdictions dealing with the privacy rights of inmates and with the role in the correctional setting of guards who are of a different sex from the prisoners. Those cases have been initiated either by inmates complaining of deprivations of privacy or by persons who have been refused employment or assignments at correctional facilities because they are of the opposite sex from the persons incarcerated and who contend that they have thereby been denied employment opportunities on the basis of sex.

We are not aware of any case in which the primary issue has been security frisks of clothed prisoners. The issue in some of the cases has been whether privacy rights are abridged by guards of the opposite sex being in a position of surveillance over inmates when the latter are unclothed or are engaged in activities which are not normally performed in the presence of members of the opposite sex (e.g., when the inmates are using the toilet, undressed, dressing or undressing, sleeping, and like situations).

In Forts v. Ward, 471 F.Supp. 1095 (S.D.N.Y.1979), female inmates of a maximum security facility brought suit for injunctive relief and damages arising out of surveillance by male guards while the inmates were in a state of undress, using toilet facilities, showering or sleeping. The court held that such surveillance violated the inmates' right to privacy and directed prison officials to submit a plan for alleviating the offending conditions. The court did not hold that the inmates were entitled to total insulation from male surveillance, but only that certain accommodations were to be made to assure the inmates the ability to carry on private acts outside the view of the male personnel. The court also concluded in Forts that male guards were entitled to equal job opportunities at the female prison. However, the court stated:

" * * * (O)n the facts before me equal job opportunity must in some measure give way to the right of privacy." 471 F.Supp. at 1099.

In In re Long, 127 Cal.Rptr. 732 (DCA3 1976), the California District Court of Appeal reached essentially the same conclusions as the federal district court did in Forts. The petitioners were mail inmates of a facility operated by the California Youth Authority. As summarized by the court, the petitioners

" * * * allege that female employees supervise their showers, latrine use and the sleeping quarters in which they change clothes. They allege that female employees conduct 'skin searches.' They also allege that female staff members have been present to supervise the dressing, shower and toilet areas of the school, the gymnasium and the swimming pool." 127 Cal.Rptr. at 732-733.

Basing its decision on a California constitutional provision, but also relying on United States constitutional provisions and interpretations, the court concluded that the surveillance practices violated the inmates' right of privacy. The justification the defendants in Long advanced for those practices (and which is also advanced as a justification by the defendants and intervenors in the present case) was that the presence of female supervisory personnel in the male facility was conducive to "normalization of environment attributable to a mixed male-female staff * * *." 127 Cal.Rptr. at 737. The California court concluded, however, that the proffered justification was unsatisfactory to explain the practices in question, because normal societal expectations outside of domestic relationships do not include visual contact between the sexes while the kinds of activities involved are taking place. The court directed the defendants to remove female staff members from the areas where such activities occurred.

The other cases we have found or which plaintiffs call to our attention were brought by persons who had sought and been denied employment by or assignments at facilities where members of the opposite sex were incarcerated. The holdings in these cases have been mixed and have turned on whether sex is a "bona fide occupational qualification" sufficient to justify sexual limitations on employment at correctional facilities under federal law or the law of various states. The privacy issue in the sex discrimination cases has generally been considered if at all in dicta. See, e. g., Gunther v. Iowa State Men's Reformatory, 462 F.Supp. 952 (N.D.Iowa, 1979); Carey v. New York State H.R. Appeal Bd., 61 App.Div.2d 804, 402 N.Y.S.2d 207 (1978). Federal courts have consistently held that sex is not a bona fide occupational qualification for hiring of corrections personnel, ² although some, including the United States District Court in Reynolds v. Wise, 375 F.Supp. 145, 151 (N.D.Tex.1974), have indicated that "selective work responsibilities" to "insure privacy of inmates" is permissible. The court in Reynolds implicitly recognized that there can be bona fide occupational qualifications for certain work assignments if the work would conflict with inmate privacy rights.

In the present case the female officers are not assigned to duties involving observation of inmates engaging in activities of the kinds the courts in Forts and Long held constitutionally insulated from opposite sex surveillance. Nonetheless, plaintiffs argue that the physical contacts involved in the frisks which are conducted by female guards are at least as intrusive as the visual surveillance considered impermissible in those and other cases. We agree.

At the heart of the privacy analysis of cases like Forts and Long lies the assumption that the final bastion of privacy is to be found in the area of human procreation and excretion and the nudity which may accompany them. If a person is entitled to any shred of privacy, then it is to privacy as to these matters. And, it seems to us, if a prisoner is entitled absent an emergency to be free of visual inspection by prison personnel while in the nude, the prisoner is equally entitled to be free from the tactile equivalent of the nude inspection, viz., manual examination of the anal-genital area through clothing.

Finally, the intervenors here present a claim that to accord plaintiffs the privacy they assert, with the consequent limitations on employment opportunities for women, would violate Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended 42 U.S.C. § 2000e et seq. The short and complete answer to this contention is that the prisoner's constitutional right prevails as every constitutional right must over any statute, state or federal. Forts v. Ward, supra, 471 F.Supp. at 1099.

None of the parties appear to believe that a prison inmate foregoes entirely the right of privacy recognized in Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). The issue is over how extensive the right is. ³ This case lies very near the dividing line. We are persuaded, however, that the right extends so far as to limit the conducting of the searches under discussion here absent emergencies to prison guards of the same sex as the prisoner being searched. Such a ruling may create marginal inconvenience for the prison administration the Constitution is not a document of convenience. But we are satisfied that the...