Strip-Search Policy Enjoined as Invasive

By Mark Hamblett
New York Law Journal

The strip-search policy used at the Orange County Correctional Facility is probably unconstitutional, a federal judge has ruled.

Southern District Judge Colleen McMahon issued a preliminary injunction Tuesday blocking the new policy, which allows strip searches of inmates who set off metal detectors or meet one of nine other criteria.

Judge McMahon said officials at the Orange County Correctional Facility (OCCF), even operating under the new criteria, must still have some other basis or "reasonable suspicion" to justify a search of a misdemeanor detainee under the Constitution.

"Without any statistics from the OCCF suggesting that a significant number of misdemeanor arrestees are concealing contraband when they arrive at OCCF, defendants have not made a convincing showing that there exists a rational connection between strip searching misdemeanor detainees who activate a metal detector and safe jail administration," Judge McMahon said in Dodge v. County of Orange, 02 Civ. 769.

The judge also certified the case, brought by three inmates earlier this year, as a class action.

Robert Isseks of Middletown said that he and co-counsel James Monroe of Goshen estimate that the potential class of plaintiffs represented in the action, those people who were strip searched after being detained on minor offenses during the last three and a half years, is more than 19,000.

The ruling came despite the efforts of Orange County Sheriff Frank Bigger to tailor a strip-search policy to recent court rulings, including one by the 2nd U.S. Circuit Court of Appeals, limiting the practice to those situations where employees at the facility had "reasonable suspicion" that an inmate possessed contraband.

The new policy allowed for strip searches for any detainee who met one of 10 criteria, such as being arrested for a weapons or narcotics offense, being in violation of probation, being under the influence of alcohol, or having a history of escape or contraband charges.

Although the presence of any one of the 10 criteria "may" allow an officer to search, Judge McMahon said that testimony at a preliminary hearing by Captain Joseph Ryan indicated the new policy was meant to eliminate officer discretion.

"Given the history of the OCCF -- where corrections officers strip searched every detainee who came through the doors until a year ago -- I can understand Captain Ryan's desire to provide his subordinates with clear standards for conducting strip searches, lest they revert to strip searching every inmate," she said.

Metal Detector

But the problem, Judge McMahon said, was that "nothing in the written policy requires a corrections officer to ask a supervisor before conducting a strip search, and officers are given no training about when they should NOT do a strip search." The result is that virtually everyone who meets one of the 10 criteria is automatically searched without reasonable suspicion, she said.

The most controversial of the 10 criteria is the activation of a metal detector or what is called the "BOSS (Body Orifice Security Scanner) chair."

An expert witness who testified at the hearing for the plaintiffs told the judge the settings on the metal detectors and BOSS chairs were sensitive and that even the smallest piece of metal, such as fillings in a detainee's teeth, would set off the machines. That testimony persuaded Judge McMahon that reliance on the machines to trigger strip searches was improper.

Judge McMahon said there were a number of less-burdensome alternatives to strip searching every inmate who sets off a metal detector or the chair.

Among the other options are use of a hand-held metal detector to verify the accuracy of positive readings by the metal detector or the chair, ordering detainees to change into prison jumpers before being walked through the machines, or, simply asking detainees to empty their pockets before walking through the detector or sitting in the chair.

"Given the documented fact that metal detectors over-detect, it is hard to see why any of these simple steps would be overly burdensome to the OCCF," she said.

Judge McMahon also had problems with some of the criteria outlined in the new policy, finding that a detainee's intoxication or probation violation does not provide officers with the reasonable suspicion they need to conduct such an invasive search.

"I note that the balance of the hardships tips decidedly in favor of the plaintiffs in this matter," she said. "Being strip searched represents a serious intrusion that is often humiliating, even when performed in the most professional manner."

Assistant County Attorney Christina M. Sanabria represented the OCCF and the county. James Fedorshak of Geller & Cutler in Poughkeepsie represented Sheriff Bigger, who is being sued individually.