Delousing Policy Treats Detainees Like ‘Animals’

     (CN) – The 6th Circuit reinstated a civil rights case against Cleveland, finding the city jail’s policy of spraying incoming detainees’ naked genitals with delousing solution treats them like “an object or an animal.”
     “This appeal boils down to one question: whether a complaint states a constitutional claim when it alleges that defendant’s jail, instead of using less invasive procedures, compelled pretrial detainees who were being processed into the facility to undress in the presence of other detainees and to have their naked genitals sprayed with delousing solution from a pressurized metal canister,” wrote U.S. Circuit Judge Richard Griffin for the three-judge panel.
     In a 15-page opinion issued Monday, the 6th Circuit panel unanimously answered the question in the affirmative.
     Tynisa Williams was arrested in late 2009 for driving with a suspended license after she failed to pay a traffic ticket.
     Williams made arrangements to pat the ticket while she was being processed, and then she was moved to the intake area of the city jail, where she was ordered to undress and shower in the presence of a corrections officer and two other female detainees.
     She was then subjected to a visual body cavity search, during which she was told to bend over and spread her buttocks.
     Williams says while she was bent over, the corrections officer sprayed her with delousing solution all over her naked body, and into her anus, although there was no indication that she was infested with lice.
     Williams was released from jail that same day.
     Another plaintiff, Shawn Bealer, says he was also arrested — twice in his case — for driving on a suspended license, and claims that on both occasions he too was sprayed with delousing solution while he was naked – once by a fellow inmate, rather than a correctional officer.
     The 6th Circuit found these allegations constitute an unreasonable search claim under the Fourth Amendment.
     Although Supreme Court precedent allows jails to conduct a suspicionless search of detainees, the search must be conducted in a manner reasonably related to the jail’s interest in confiscating contraband and preventing lice from infesting the facility.
     “Given the significant incursion into plaintiffs’ privacy rights caused by the jail’s preferred method of searching and delousing them, the jail’s need to perform the searches in this particular manner must be unusually dire before it can outbalance the affront to plaintiffs’ privacy,” Judge Griffin said.
     Plaintiffs suggested the jail could easily permit detainees to self-apply the delousing solution, and conduct the searches in private, rather than in the presence of other detainees.
     The court agreed, and analogized the Cleveland jail’s delousing procedure to a mandatory shower requirement where the detainees were pressure-washed by officers instead of being allowed to wash themselves.
     “There is no question that permitting self-application of the delousing solution would be less humiliating and invasive than the ‘hose treatment,'” Griffin wrote. “Not only would such a policy avoid officers’ intentional physical touching of a detainee’s intimate body parts, but it would also preserve a detainee’s ability to exercise one of the most basic of human qualities: the faculty of choice.
     “Giving a detainee the opportunity to self-apply the delousing agent permits her to weigh the alternatives and choose the option that enables her to comply with the delousing requirement while protecting her self-dignity. Simply spraying the detainee with a hose as if she was an object or an animal treats her as if she does not have the capacity to make that choice,” he continued.
     The court left open the possibility that the jail may have a good reason for conducting its searches in this manner.
     “But that is a matter for resolution either at trial or on summary judgment, not on the pleadings. The district court, which opined that delousing naked inmates in a group ‘is justified,’ jumped the gun,” Griffin wrote.

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