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Court Limits Searches of Jailed Women : Prisons: Federal appeals court rules that use of male guards at Washington facility violates protection against cruel and unusual punishment.

February 26, 1993|HENRY WEINSTEIN | TIMES STAFF WRITER

In a precedent-setting decision, a federal appeals court in San Francisco ruled Thursday that random body searches of clothed women prisoners--including of their breast and genital areas--by male guards at a Washington prison violated the Constitution's prohibition against cruel and unusual punishment.

The U.S. 9th Circuit Court of Appeals upheld a lower court ruling maintaining that a search policy launched in July, 1989, at the Washington Corrections Center for Women amounted to "wanton infliction of pain," which is barred by the 8th Amendment.

The majority opinion by Circuit Judge Diarmuid F. O'Scannlain emphasizes that there is a probability of severe psychological injury and emotional pain to some inmates, even if such searches are properly conducted.

The decision also said that prison Supt. Eldon Vail implemented the new search policy in July, 1989, "despite warnings from psychologists on his staff that the cross-gender clothed body searches could cause severe emotional distress in some inmates."

About 85% of the 270 inmates at the prison had reported to prison counselors that they had suffered some form of sexual abuse during their lives, making them particularly sensitive to such searches, the majority opinion said.

The record in the case supports the theory that "women experience unwanted intimate touching by men" differently than men who are touched in a similar way by women, O'Scannlain, a 1986 appointee of President Ronald Reagan, wrote for the majority in the 7-4 decision.

Lawyers for the inmates and the prison said they believe the decision is the first on this issue.

The ruling comes as the population of women in the nation's prisons has skyrocketed and in the wake of accusations about abuse of women prisoners in California, Georgia, Hawaii and Ohio. At the end of 1991, there were 47,691 women behind bars, up from 12,331 in 1980.

In general, courts have given women guards wide leeway to search male prisoners, said Kathleen D. Mix, a Washington state assistant attorney general who represented the prison. She expressed disappointment in the decision but said it was too early to tell if the state would appeal.

Regulations at the Washington prison prohibited male guards from conducting strip searches and body-cavity searches. The search policy that led to the case stemmed from grievances by female guards that they had to interrupt lunch breaks to conduct such searches and from complaints by male guards that prohibiting them from conducting the searches was demeaning to them professionally.

However, the majority opinion said the warden manifested "deliberate indifference" to the constitutional rights of the women inmates by imposing the policy. The ruling noted that a psychologist testified at a lower court hearing that compelling women to submit to such searches by men "would likely leave the inmate 're-victimized,' resulting in a number of symptoms of post-traumatic stress disorder."

One woman inmate immediately vomited after such a search, and her hands had to be pried from prison bars that she grasped while "freaking out" after the search, said Kay Frank, a Seattle attorney who represented the inmates. The inmate testified that she had been raped twice by strangers and boyfriends, beaten by various men and pushed out of a moving car by a man.

O'Scannlain rejected prison officials who categorized the searches as mere pat-down examinations. During the search, he said, "the male guard stands next to the female inmate and thoroughly runs his hands over her clothed body, starting with her neck and working down to her feet."

"According to the prison-training material, a guard is to use a flat hand and pushing motion across the (inmate's) crotch area. . . . The guard must 'push inward and upward when searching the crotch and upper thighs of the inmate.' All seams in the leg and the crotch are to be squeezed and kneaded. Using the back of the hand, the guard also is to search the breast area in a sweeping motion, so that the breasts will be flattened," the judge wrote.

Joining O'Scannlain in the majority were judges William C. Canby Jr., Cynthia Holcomb Hall, Edward Leavy, John T. Noonan, Cecil F. Poole and Stephen Reinhardt. Reinhardt and Canby, while agreeing that the 8th Amendment had been violated, filed a separate concurring opinion asserting that the prison's policy should have been struck down as a violation of the Constitution's ban on unreasonable searches.

The decision leaves in place an injunction preventing the searches issued by U.S. District Judge Robert J. Bryan in July, 1989, soon after the policy was instituted.

"We're obviously very pleased that the court saw this the same way we did and the same way Judge Bryan did," said Frank, the inmates' attorney. "We felt that the prison system was creating psychological harm that was unnecessary."

Four judges, led by Stephen S. Trott, issued a lengthy dissent, contending that the lower court failed to evaluate whether the conduct "was maliciously and sadistically undertaken for the purpose of causing harm." The other dissenters were Chief Judge J. Clifford Wallace, Andrew J. Kleinfeld and Charles W. Wiggins.

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