Christopher P.

Lunsford
1012A Cole Street San Francisco, CA 94117 (240) 441-0879 christopher.lunsford@gmail.com

Writing Sample This is a memorandum written for my Legal Research, Writing, and Analysis course, submitted on November 21, 2011. The assignment was a closed universe assignment, and we were restricted to discussing the issue of whether or not a mandatory strip search policy for inmates in the fictional jurisdiction of Zief is a violation of the Fourth Amendment. In order to cut this memorandum to ten pages in length, I have omitted the Conclusion section, and the second and third issue sections. I would be happy to provide the complete document upon request.

Questions Presented:

1. Is the Zief County Jail (ZCJ) blanket strip-search and cavity-search policy, applied to every detainee arrested in Zief County, a violation of the Fourth Amendments protection against unreasonable searches? 2. Was the strip-search and cavity-search performed by Officer Jennifer Horan a violation of the Fourth Amendments protection against unreasonable searches? 3. What, if any, damages would Julie be eligible for? Brief Answers: 1. Maybe. There is a jurisdictional split on how to apply the law on this issue. The majority of jurisdictions require a reasonable suspicion that a detainee is hiding contraband before a search is allowed. There was likely no reasonable suspicion that Julie was hiding contraband. A minority of jurisdictions do not require a reasonable suspicion that a detainee is hiding contraband before a search is allowed. The minority generally accept the constitutionality of blanket strip-search policies. 2. Maybe. This will depend on whether the court finds the ZCJ blanket search-policy is unconstitutional. If the court holds that Officer Horan could have known that the strip-search was unreasonable, then she may be found liable. 3. Julie would be eligible for nominal damages for the violation of her right against unreasonable searches, compensatory damages for the trauma caused by the search, and court and attorney's

fees for both claims if either is successful, as well as punitive damages. Statement of Facts: Julie Pitt is a current resident of the City and County of Zief. Fifteen years ago she became a hard-rock music star. She developed a lifestyle of drug and alcohol abuse, wild partying, and disorderly behavior. During this time she was charged with several crimes, including drug possession and sales, battery, and disorderly conduct, in addition to many parking tickets. This behavior was publicized in Zief, and her reputation suffered accordingly. Roughly six years ago Julie was sentenced to five years in federal prison for drug smuggling charges. After her release, Julie began to follow a religious organization based in Zief called the Church of Holy Humility. The Churchs basic tenets are public service and personal humility. Julie began the process of becoming a clergywoman of the Church of Holy Humility. Her first step was to take a vow of total humility, which allowed only her husband to see her fully naked. Julie expected to become a clergy member in January of 2013. She took a position as an assistant grade school teacher. The City of Zief was so impressed with Julies personal growth that they awarded her the Emerging Teacher of the Year award.

On October 12 of 2011, Julie was pulled over for failing to make a complete stop at a stop sign. The officer found that Julie had over $2,000 in unpaid parking tickets to the City of Zief. As per Zief police policy, the officer arrested Julie. Julie was brought to the station and charged for failure to pay outstanding parking tickets, a misdemeanor. She was brought to the Zief County Jail (ZCJ), and was told that she would be strip-searched for the safety of the jail population. Jennifer Horan, a female police officer, performed the strip-search of Julie. Officer Horan escorted Julie to a investigation room that had windows on one wall open to the intake area. The blinds on the windows were raised. Another female officer was in the intake room while Julie was being searched. Officer Horan required Julie to strip down to her bra and underwear. She then instructed Julie to lift her bra and expose herself. Julie was told to pull down her underwear and bend over to allow for visual inspection. Officer Horan found no contraband on Julies person. She was outraged that she was forced to submit to a stripsearch while in custody. Because she had been seen with less than her full clothing, her vow of humility was broken. Now she may not ascend to the clergy of the Church of Holy Humility. The clergywoman position paid $100,000 annually, and she will never be able to lead her own congregation.

Julie discovered that Zief officials had only enacted the policy in January of 2011. The policy required that all arrestees must be searched by a member of the Zief Police Department before being moved into general population. Women must remove or pull down all undergarments to allow for visual inspection of the breast, vaginal, and anal areas. All arrestees are to bend forward to allow for visual inspection of body cavities. The policy requires that Zief Personnel not physically touch arrestees, and that all searches be conducted individually without video monitoring. Julie discovered that since the policy was implemented, contraband has been found only four times. Julie is considering challenging the constitutionality of her strip-search in the Northern District of Zief, part of the Fourteenth Circuit. Discussion: The United States of America puts great value in the sanctity and privacy of the human body. This idea has been enshrined in the United States Constitution, Amendment IV, which grants citizens the right to be secure in their persons against unreasonable search and seizures. U.S. Const. amend. IV, 1. In order to find a balance between civil rights and the practical necessities of modern government, federal law provides that any person, under any legal or government means, deprives any

citizen of any rights, privileges, or immunities secured by the Constitution and the law, shall be liable to the party injured. 42 U.S.C.A. 1983 (West 2009). For an analysis of this statute, the court must determine if the perceived injury is a violation of a right, privilege, or immunity secured by the Constitution or law. Bell v. Wolfish, 441 U.S. 520, 558 (1979). This analysis will depend on whether the statute or government policy that caused the injury is itself a violation, or if the violation was the result of an improper execution of an otherwise proper statute or government policy. 1. Is the Zief County Jail strip-search policy a violation of the Fourth Amendment? In Bell, the Court outlined a standard for determining whether a search is reasonable under the requirements of the Constitution. Id. at 558. The reasonableness of a search under the Fourth Amendment requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Id. at 559. The court must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted. Id. at 559. The court applied this to the strip-search policy enforced by the Metropolitan Correctional Center (MCC) of New York City. Id. at 559-61. The MCC stripsearch policy was held instinctively troublesome for the

Fourth Amendment. Id. at 558. This alone did not outweigh the needs for the strip-search policy. Id. at 560. Prison inmates are assumed to be protected by the Constitution, but these rights may be restricted and limited. Id. at 545. This policy was reasonable when considering the dangerousness of prisons, and that a single discovery of contraband was sufficient evidence of the policys effectiveness. Id. at 559-60. Initially, the majority of circuit courts concluded that the law required an individualized assessment of a strip-search, and required a measure of reasonable suspicion for a search to be justified. See Masters v. Crouch, 872 F.2d 1248 (6th Cir. 1989); and Mary Beth G. v. City of Chicago, 723 F.2d 1263 (7th Cir. 1983). A recent minority of circuit courts have rejected the reasonable suspicion requirement, and held that the law requires a general assessment of a strip-search policy for constitutionality. Powell v. Barrett, 541 F.3d 1298 (11th Cir. 2008); Florence v. Bd. of Chosen Freeholders of County of Burlington, 621 F.3d 296 (3d Cir. 2010). a. Jurisdictions that require individual assessment of a reasonable suspicion: The majority of federal districts have ruled that the Bell holding requires an individualized inquiry into the needs of a particular search, typically stressing the use of the word particular. Masters v. Crouch, 872 F.2d 1248, 1252 citing Bell

v. Wolfish, 441 U.S. 520, 559. This analysis factors the scope of the intrusion, the justification for initiating it, and the manner and place in which it is conducted. Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1271-73. The court requires a reasonable suspicion of hidden contraband before a strip-search is justified. Id. 1273. In Mary Beth G., the court applied the factor analysis to a particular class of strip-searches. Detainees arrested for minor offences were strip-searched as per policy for all women entering detention. 723 F.2d 1263, 1267. The court then reviewed the goal of the policy, and was unimpressed of the usefulness for nonviolent offenders. Id. at 1273. Only women charged with prostitution, assault, or

possession of narcotics had been found with contraband. Id. at 1273. The court found that these crimes would give rise to reasonable suspicion, but these crimes were distinct from minor offenses. Id. at 1274. Julie will argue that the Fourteenth District should require reasonable suspicion to justify a strip-search. Julies arrest is comparable to the minor traffic offense described in Masters. 872 F.2d 1248, 1255. Julie presented no reasonable suspicion that she might be hiding contraband; the community has recognized her improved behavior by giving her the Emerging Teacher of the Year award. The strip-search is especially intrusive for Julie. Being strip-searched violated one of the

tenets of her faith, making her ineligible for ascension to the clergy. This is a harm that is difficult to calculate, but clearly exceeds the substantial intrusion felt by others who are strip searched. She will argue that the court does not want citizens who pose no risk to jail security to be submitted to such an intrusion. The ZCJ will argue they had reasonable suspicion to conduct a strip-search. Julie was a hard-rocker, associated with regular drug use and violent disorderly conduct. The community of Zief knew about her behavior. A police officer can conclude that an individual with a robust criminal history is more likely to hide contraband on her person. The best way to insure jail safety is to perform a strip-search on anyone suspected to hide contraband, including reformed criminals and people charged with minor crimes. The court would likely rule in Julies favor. While Julies substantial criminal history may be an issue, the court has focused primarily on the arresting crime. As her arresting crime was of a non-violent nature, the court will likely find that her search had no reasonable suspicion. b. Jurisdictions that do not require reasonable suspicion for individual strip-searches: In an en banc decision, the Eleventh Circuit held that there is no reasonable suspicion requirement in the balancing

analysis. Powell v. Barrett, 541 F.3d 1298, 1307. The court held that the Bell decision applied to searches that were performed under a blanket policy without reasonable suspicion. Id. at 1307. Blanket strip-search policies are justified. Powell v. Barrett, 541 F.3d 1298, 1314. The court found little distinction between a non-violent arrestee and a felon when it comes to hiding contraband, stating there are plenty of situations where non-violent detainees could attempt to smuggle contraband. Id. at 1314. This rule is applied in Florence, where Albert Florence was arrested for a minor charge and then twice stripsearched as part of the detention centers blanket policy. 621 F.3d 296, 299. The security interests of the prison justified searching every detainee. Id. at 307-08. The court gave deference to the prison policy makers in assessing the importance of the blanket-search policy Id. at 310. The Zief County Jail will argue that the Fourteenth District should not require reasonable suspicion to conduct a strip-search. The court should look at the policy in general, as opposed to the individual circumstances of Julies situation. Since the policy took effect in January 2011, contraband had been found four times. This is evidence of deterrence, as described in Bell v. Wolfish. 441 U.S. 520, 559. The blanket application of strip-searches helps to avoid potential problems with equal application of law, and can mitigate abuses or

failures by prison staff in assessing who to search. These are the kind of administrative details that the court gives deference to in Florence. 621 F.3d 296, 310-11. Julies privacy concerns, while substantial, do not outweigh the prison policy. 2. Was Officer Horans execution of the strip-search a violation of the Fourth Amendment? [Omitted] 3. What damages is Julie able to recover? [Omitted] Conclusion: [Omitted]