It’s accepted legal precedent that jail and prison inmates have fewer Fourth Amendment protections when incarcerated. But what few expectations of privacy they did retain seem extinguished by last week’s Seventh Circuit decision.

The court ruled that mass strip searches, during which female inmates were forced to expose themselves, remove tampons and menstrual pads, and viewed by male and female guards, trainees, and civilians, did not fall under the Fourth Amendment. Thus ending, for now, a class action lawsuit filed by the inmates.

Not a Physical Intrusion?

Being in prison is no picnic, but the facts of the search sound humiliating:

As invasive and unnecessary as the searches appear, a three-judge panel of the Seventh Circuit declined to examine them under the Fourth Amendment. “Applying the Fourth Amendment to all unwelcome observations of prisoners would eliminate the subjective component and create a sort of Eighth Amendment lite,” according to Judge Frank Easterbrook. The inmates had also made Eighth Amendment claims, which a jury rejected.

Easterbrook and Judge Danial Manion relied on some Seventh Circuit precedent to draw the line at who was conducting the strip searches, rather than examining the inmates and searches themselves:

The majority, however, acknowledged the conflicting rulings – both within the circuit and out – and seemed to invite the Supreme Court to have a say in the matter. “It has been 35 years since the Justices last considered the extent to which convicted prisoners have rights under the Fourth Amendment while still inside prison walls,” Easterbrook noted. “For more than 20 years it has been established in this circuit that the Fourth Amendment does not apply to visual inspections of prisoners. It is best to leave the law of the circuit alone, unless and until the Justices suggest that it needs change.”

Recognizing Reasonableness

District Court Judge John Lee, serving on the circuit, did not agree with Easterbrook’s distinction based on the searcher rather than the searched or the search:

“The Fourth Amendment affords all people a base level protection against the most intrusive of searches by government officials,” said the women’s attorney, Ruth Brown. “This was, for the 200 women, degrading. This is what the Fourth Amendment is designed to protect, in our opinion.” Brown says her clients will appeal to the full Seventh Circuit.

  • Prisoner Lawsuit Over Transparent Jumpsuit Can Proceed (FindLaw’s Seventh Circuit Blog)
  • A Lifetime of GPS Monitoring for Sex Offenders Is Constitutional (FindLaw’s Seventh Circuit Blog)
  • Posner Ponders: Does the Punishment Fit the Criminal? (FindLaw’s Seventh Circuit Blog)

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