02/09/2019
1ST AMENDMENT THOUGHTS FROM A 4TH AMENDMENT LAWYER
Tacit Admission of Liability? Statutory Amendment Proposed to Eviscerate your Strip Search Protections.
This Helena jail strip search lawsuit for which we are seeking class certification has stirred the hornet's nest the powers that be in this state. Today, the Montana legislature held hearings on HB 306, which proposes amending 46-5-105, MCA in a way that would deprive Montanans of essentially all of the protections against strip searches that have been codified in this statute. While, this would only affect future law enforcement action and will not affect the lawsuit, it is nonetheless disturbing. The proposed amendment is as follows:
A PERSON ARRESTED OR DETAINED FOR A TRAFFIC OFFENSE OR DETAINED FOR A TRAFFIC OFFENSE OR AN OFFENSE THAT IS NOT A FELONY MAY BE SUBJECTED TO A STRIP SEARCH FOR SECURITY PURPOSES PRIOR TO PLACEMENT IN A DETENTION CENTER.
This amendment will likely be determined to be unconstitutional under the Montana Constitution. However, it threatens to codify the systemic and illegal abuses that Montanans have been subjected to upon admission to a jail for a misdemeanor or traffic offense in this jurisdiction.
While the law enforcement objectives contemplated in this amendment may be legitimate (protecting law enforcement officers and stopping the flow of contraband or weapons into a detention center), they can be accomplished very easily by implementing the following procedures:
1) Using body scan technology (ironically, the Montana State Prison has been using said technology for 20 years, and it has come a long way during that time) to eliminate the possibility that contraband or weapons can be brought into jail.
2) Segregating persons that nearly always are released from jail the next morning, such as persons arrested for DUIs or misdemeanor PFMAs, away from the general population.
These solutions would address law enforcement's concerns in a way that does not violate each Montanan's right to privacy, which is explicitly set forth in the Montana Constitution.
Further, It is axiomatic that “a State is free as a matter of its own law to impose greater restrictions [on] police activity than those” that the United States Supreme Court hold “to be necessary upon federal constitutional standards.” Oregon v. Hass (1975), 420 U.S. 714, 719, 95 S.Ct. 1215, 1220. See, e.g., Virginia v. Moore (2008), 553 U.S. 164, 174, 128 S.Ct. 159, ___; Cooper v. California (1967), 386 U.S. 58, 62, 87 S.Ct. 788, 791 (citing State's power to impose higher standards on searches and seizures than required by the Federal Constitution); Sibron v. New York (1968), 392 U.S. 40, 60-61, 88 S.Ct 1889, 1901-1902.
Without question, Montana has indeed embraced greater restrictions on police activity. The Montana Supreme Court has “long held that Montana's Constitution affords citizens broader protection of their right to privacy than does the federal constitution.” See State v. Siegal (1997), 934 P.2d 176, 183, 54 St.Rep. 158, 163–64. And it has recognized that ‘[u]nlike the federal constitution, Montana's Constitution explicitly grants to all Montana citizens the right to individual privacy.” Id. Article II, Section 10 of the Montana Constitution provides:
"Right of privacy. The right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest."
Since the right to privacy is explicit in the Declaration of Rights in Montana's Constitution, it is a fundamental right. Gryczan v. State, 283 Mont. 433, 448-9, 942 P.2d 112, 121-2.
The Montana Supreme Court has propounded elsewhere:
"As we have already stated, in this State, under Montana's Constitution, the right of individual privacy—that is, the right of personal autonomy or the right to be let alone—is fundamental. It is, perhaps, one of the most important rights guaranteed to the citizens of this State, and its separate textual protection in our Constitution reflects Montanans' historical abhorrence and distrust of excessive governmental interference in their personal lives. That such interference is because the majority wills it is no less pernicious.
James Madison decried the potential for a tyranny of the majority, pointing out that it was as important in our system of government to guard the minority in our society against injustice by the majority, as it was to guard society from the oppression of its rulers. The Federalist, No. 51, at 351 (James Madison) (Jacob E. Cooke ed., 1961)."
Gryczan v. State, 283 Mont. 433, 455, 942 P.2d 112, 125.
The Montana Supreme Court has further stated that when a right of privacy is specially implicated as part of a traditional search and seizure a**lysis, the issue must be addressed pursuant to both Sections 10 and 11 of Article II, of Montana's Constitution. See State v. Scheetz (1997), 286 Mont. 41, 45–47, 950 P.2d 722, 724–25. Article II, Section 11, provides protection against unreasonable searches and seizures of persons, papers, homes, and effects.
With both of these constitutional provisions in mind, the Montana Supreme Court specifically addressed the traumatic nature of strip searches in Deserly v. Department of Corrections in the context of inmate visitor strip searches. 2000 MT 42, 298 Mont. 328, 995 P.2d 972. While explicitly ‘keeping in mind our long-standing rule not to “march lock-step” with the Federal Constitution “where the broader protections of the Montana Constitution may be implicated.” 2000 MT 42, ¶ 18, 298 Mont. 328, ¶ 18, 995 P.2d 972, ¶ 18. The Court propounded the following:
"We start by acknowledging that “[o]ne of the clearest forms of degradation in Western Society is to strip a person of his clothes.” Hayes v. Marriott (10th Cir.1995), 70 F.3d 1144, 1146 (quoting Canedy v. Boardma (7th Cir.1994), 16 F.3d 183, 185). Moreover, “the strip search of an individual by government officials, ‘regardless how professionally and courteously conducted, is an embarrassing and humiliating experience.’ ” Romo v. Champion (10th Cir.1995), 46 F.3d 1013, 1019, cert. denied, (1995), 516 U.S. 947, 116 S.Ct. 387, 133 L.Ed.2d 309, quoting Boren v. Deland (10th Cir.1992), 958 F.2d 987, 988 n.1; Hunter v. Auger (8th Cir.1982), 672 F.2d 668, 674.
Deserly, ¶ 19.
A Federal District Court once summarized the abhorrent nature of strip searches as follows:
"Subsequent cases have noted that strip searches, regardless of the particular procedures used,constitute extremely invasive government action. Giles v. Ackerman, 746 F.2d at 617 (stating that a skin search invaded plaintiff's privacy “in a frightening and humiliating manner”); Logan v. Shealy, 660 F.2d at 1013 (describing a visual strip search as “the ultimate invasion of personal rights”); Thompson v. City of Los Angeles, 885 F.2d 1439, 1446 (9th Cir.1989) (“The feelings of humiliation and degradation associated with forcibly exposing one's n**e body to strangers for visual inspection is beyond dispute.”). Because a more invasive strip search can be “demeaning, dehumanizing, undignified, humiliating, [and] repulsive,” it is “one of the most grievous offenses against personal dignity and common decency.” Bell, 441 U.S. at 576–77, 99 S.Ct. 1861 (Marshall, J., dissenting);
Strip searches are more intrusive than searches of arrestees incident to arrest. See Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1272 (7th Cir.1983), Mary Beth G., 723 F.2d at 1268–71; Swain v. Spinney, 117 F.3d 1, 5–6 (1st Cir.1997); Giles v. Ackerman, 746 F.2d at 616. Strip searches are also considerably more intrusive than “the limited search of the outer clothing for weapons” authorized by Terry v. Ohio on an officer's reasonable suspicion, which the Supreme Court described as “a severe, though brief, intrusion upon cherished personal security, [which] must surely be an annoying, frightening, and perhaps humiliating experience.” Terry v. Ohio, 392 U.S. 1, 24–25, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
Strip searches differ qualitatively from other intake procedures which entail some incidental nudity but do not involve visual inspection of the naked body. Cf. Stanley v. Henson, 337 F.3d 961, 967 (7th Cir.2003); Wood v. Hancock County Sheriff's Dep't, 354 F.3d 57, 62–64 (1st Cir.2003). The exposure of the naked body to scrutiny by government officers is what makes strip searches more invasive than other admission procedures at a custodial facility.
The intrusiveness of the search must also be considered in light of the circumstances and context of the search. For offenses that are relatively minor, a strip search represents a grossly disproportionate consequence of arrest. Few people would think that their right of privacy in their own body, a “cherished value of our society,” Schmerber, 384 U.S. at 772, 86 S.Ct. 1826, could be jeopardized by the failure to pay parking tickets, shoplifting, or driving without a license. Police officers arrest and temporarily detain individuals for offenses that carry minimal statutory penalties. See, e.g., Stewart, 767 F.2d at 154–55; Hill v. Bogans, 735 F.2d 391, 392–93 (10th Cir.1984). Under a blanket policy, custodial facilities search all of these arrestees without regard to the severity of their offenses or likelihood of conviction. For minor offenders unfamiliar with the incidents of detention, strip searches add shock and unexpected humiliation to the already frightening experience of arrest."
Allison v. GEO Group, Inc. (E.D. Pa. 2009), 611F.Supp.2d 433, 454-53.
It has been further noted elsewhere:
Certainly, the forced exposing of one's sexual and a**l organs to view by arresting officials is a gross invasion of that sanctity and dignity. The psychological effects of strip searches reportedly resemble those suffered by r**e victims.
Paul R. Shuldiner, Visual R**e: A Look at the Dubious Legality of Strip Searches, 13 J. Marshall L. Rev. 273, 295-96 (1980) (citing United States ex rel. Guy v. McCauley (E.D. Wis.1974), 385 F. Supp. 193; Simon, Strip Searches, 6 Barrister 10 (1979) (women suffered many of the after effects that r**e victims experience)).
Innocent people are charged and often convicted of crimes that they did not commit. People that make one simple mistake should be treated with decency and respect in a way consistent with their constitutional rights. It could be your son or daughter next time. Stand up Montana! Fight back!
/s/ Beebe & Flowers Law Firm
