Inmate Can’t Sue Officer Over Removed Tampon

(CN) - Chicago police had the right to ask a menstruating woman to remove her tampon during a strip search, a federal judge ruled.

In August 2010, Sandra Rosario was arrested for battery and suspicion of selling drugs. Rosario denied the allegation, claiming to have merely argued with a woman who owed her sister money.

After the charge against Rosario was dismissed about three weeks later, Rosario filed a civil rights complaint against Chicago and seven officers.

The complaint implies that Officer Angelique Casey-Martinez conducted an unconstitutional strip search of Rosario at the police station. Casey-Martinez allegedly told Rosario to disrobe and remove her tampon the tampon she was wearing because she was menstruating.

Rosario said Casey-Martinez then performed a visual cavity search, left the room with the extracted tampon, and reported that Rosario was not carrying any drugs.

After allegedly waiting in the processing room for two hours with her hands cuffed behind her back, Rosario says she banged on the door. She testified that Magallon entered and "flung me on the bench and told me to sit the fuck down, to shut the fuck up, that I knew the motherfuckin' system; and he grabbed his hand and he slapped me so hard across my face."

After noting that recent Supreme Court precedent leaves room for Rosario to claim that her strip search was unconstitutional, U.S. District Judge Matthew Kennelly dismissed many of the claims.

Earlier this month, the Supreme Court upheld blanket jailhouse strip-search policies in Florence v. Board of Chosen Freeholders of County of Burlington, but left open the possibility for exceptions.

Casey-Martinez's search of Rosario was legal, however, because the officer had reason to search for contraband, the court found.

The officer conducted the search in reliance on the testimony of Rosario's arresting officers, who said Rosario was suspected of selling drugs.

"Rosario's only allegation supporting her contention that the search was conducted in an impermissible manner is her claim that she was asked to remove her tampon," Kennelly wrote. "The court concludes that without more, this allegation does not provide sufficient evidence for a reasonable jury to find that the search was conducted in an unconstitutional manner. 'The court is mindful that [Rosario] was embarrassed and humiliated by the process and her embarrassment was compounded because she had her menstrual period at the time of the strip search.' 'Without discounting or minimizing [Rosario's] understandable and genuine emotional reaction, that reaction does not determine the constitutionality of the search.'"

But those arresting officers, Rafael Magallon and Angeilly Lopez, are still on the hook.

"A reasonable jury could conclude that the officers knew that there was no probably cause for the narcotics offense and ... should have intervened to stop Rosario's suspicionless strip search," the decision states.

Rosario can also sue those officers for emotional distress.

"Because Rosario's claim of severe distress depends on her allegations that she was arrested and searched without probable cause and beaten while being held, the court concludes that Magallon and Lopez ... are not entitled to summary judgment on this claim," the judgment states.

Magellon also cannot get summary judgment on Rosario's battery and malicious prosecution claims.

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