Tuesday, February 22, 2011

Fifth Circuit to Reexamine the Desired Balance Between Security and Privacy in the Context of Incarceration

By Alese Bagdol

The Fifth Circuit may soon reverse its position—in the recently argued case of Jimenez v. Wood County—by finding blanket strip-searches of pretrial arrestees constitutional.

In Jimenez, the plaintiff was arrested for hindering her husband’s apprehension by hiding him in the trunk of her car. (In Texas, “hindering apprehension” is a Class A misdemeanor.) The plaintiff was then taken to Wood County Jail, where she was strip-searched in accordance with the facility’s policy to search all new detainees—regardless of whether they were under suspicion for weapon or contraband possession. The plaintiff sued Wood County under the Fourth Amendment and a jury awarded damages.  Wood County appealed.

The Fourth Amendment protects against unreasonable search and seizure.  So, Jimenez turns on whether this particular strip search was unreasonable. The guards who conduct the strip searches say that security concerns require them to search for weapons possibly smuggled into the facility. But a woman booked for committing a minor misdemeanor would probably lack the foresight to conceal a weapon on her person before her arrest. Is the security threat substantial enough to warrant this invasion of privacy?

The U.S. Supreme Court addressed a similar issue when, in 1979, it decided Bell v. Wolfish.  In that case, however, the facility conducted hands-off body cavity strip searches after detainees had had contact visits with friends and family from the outside.  The court reasoned that the need to uphold security interests outweighed any concern for an inmate’s right to privacy.

Like the Fifth Circuit in Stewart v. Lubbock, most Circuits have distinguished their seminal cases on the subject from Wolfish.  Only when the Eleventh Circuit remarked that most other Circuits have wrongly interpreted Supreme Court precedent did the Fifth Circuit contemplate reversing its view.

Security interests run high in many contexts, especially incarceration.  Still, how far ought a court to go to protect those interests? Will reading Wolfish more broadly lead to greater infringement of an inmate’s right to privacy? The judges on the Fifth Circuit ought to consider these questions before reversing their initial stance on striking the proper balance between maintaining adequate security standards and protecting the privacy rights of inmates in custody.

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