Federal Court Sides with Detainee in Strip Search Case from Wisconsin

By Joe Forward, Legal Writer, State Bar of Wisconsin

Aug. 21, 2012 – A detainee who claims a jail guard “gratuitously fondled” him while conducting a strip search at a county jail in Wisconsin may go to trial, now that a federal appeals court has reversed a summary judgment ruling in favor of the jail guard.

Plaintiff James Washington, detained in a Wisconsin County jail in 2008, claimed the guard illegally touched him during a pat down and strip search. He filed a federal claim under 42 U.S.C § 1983 (civil action for deprivation of rights), claiming damages for psychological harm.

The guard denied the allegations.

The U.S. District Court for the Eastern District of Wisconsin granted summary judgment to the guard. Even presuming the guard “grabbed the plaintiff’s genitals in a way that was not related to penological interests,” the district court explained, the injury was de minimis and the defendant could not prove the guard’s subjective intent.

That is, the district court concluded that Washington could not prove the guard acted outside of penological interests to humiliate the plaintiff or derive pleasure from it. But in Washington v. Hively, No. 12-1657 (Aug. 20, 2012), the U.S. Court of Appeals for the Seventh Circuit disagreed.

“[S]ubjective intent, unless admitted, has to be inferred rather than observed; judges and jurors are not mind readers,” wrote Judge Richard Posner for a three-judge panel.

The panel also rejected the district court’s de minimis conclusion, which invoked excessive force cases, noting that a prisoner’s rights can be violated in other ways besides excessive force.

“An unwanted touching of a person’s private parts, intended to humiliate the victim or gratifying the assailant’s sexual desires, can violate a prisoner’s constitutional rights whether or not the ‘force’ exerted by the assailant is significant,” wrote Judge Posner, noting that sexual offenses, “forcible or not,” can cause “lasting psychological harm.”

The Washington strip search case comes months after a controversial U.S. Supreme Court ruling, Florence v. Board of Chosen Freeholders of County of Burlington, 566 U.S. __ (2012), which subjects detainees, even ones detained for minor offenses, to strip searches without suspicion that they are carrying concealed weapons, drugs, or contraband.