Appeal from a decision of the District Court of the District of Connecticut, Robert C. Zampano, Judge, denying plaintiffs' motion for declaratory and injunctive relief in civil rights class action challenging the constitutionality of strip searches of pretrial detainees upon their return from court appearances and other outside visits. Reversed and remanded.
Before Lumbard and Mansfield, Circuit Judges, and Holden, District Judge.*fn*
The plaintiff represents a class of pretrial detainees confined at the Bridgeport Community Correctional Center (Center), a state correctional facility in Connecticut. The action was instituted by the plaintiff Bell, pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 2201, to obtain declaratory and injunctive relief against strip search procedures conducted by the defendant state correctional officers after return from court.*fn1 With agreement of counsel, the plaintiff's motion for class certification under Fed.R.Civ.P. 23(b)(1) and 23(b)(2) was granted. After an evidentiary hearing the district court concluded that the procedures used at the Center did not violate the Fourth Amendment rights of the detainees and denied their application for a preliminary injunction. Bell v. Manson, 427 F. Supp. 450 (D.Conn.1976). The complaint was then dismissed, from which the plaintiffs appeal.
Judge Zampano described the search procedures used by the defendants:
The testimony established that pretrial detainees are strip searched with rectal inspections upon their return to the Center after all court appearances where, as a general rule, they were in contact with attorneys, friends, relatives, and other prisoners being held in the court's "holding cells.' Each inmate in the presence of two correctional officers in a private room is required to remove his clothing, ruffle his hair, raise his arms, open his fingers and feet, and then bend over and spread his buttocks to reveal his anus to the guards. At no time is the inmate touched by a correctional officer, nor does the evidence produced indicate that guards verbally subject an inmate to humiliation or abuse.
Although the district court was mindful that pretrial detainees have a different status from convicted felons, Judge Zampano ruled that the strip and rectal searching in these circumstances was not unreasonable:
(T)he prison officials interest in maintaining proper security outweighs the inmates' rights to be free from the embarrassing submission to strip searches upon their return from court appearances and other outside visits.
The district court's ruling was made without the benefit of this court's opinion in Wolfish v. Levi, 573 F.2d 118 (2d Cir. 1978), Cert. granted October 2, 1978, Sub nom. Bell v. Wolfish, 439 U.S. 816, 99 S. Ct. 76, 58 L. Ed. 2d 107. In Wolfish the concern was the rights of the pretrial detainees in a federal correctional center. The court of appeals affirmed the order of the district court which "left the basic strip-search procedures undisturbed" but "prohibited inspection of the genitals and anus unless there is probable cause to believe that the inmate is concealing contraband." 573 F.2d at 131.
The court's opinion by Chief Judge Kaufman makes it clear that the holding is based on the Constitution.
The gross violation of personal privacy Inherent in such a (body cavity) search cannot be outweighed by the government's security interest in maintaining a practice of so little actual utility. To speak plainly, in the circumstances presented by this record, the procedure shocks one's conscience. See Rochin v. California, 342 U.S. 165, 72 S. Ct. 205, 96 L. Ed. 183 (1952). (emphasis added).
The question of genital and anal searches of state convicted inmates, conducted without probable cause, was more recently presented to a different panel of this court in the appeal in Hurley v. Ward, 584 F.2d 609 (2d Cir. 1978). The court's opinion by Judge Mulligan refers to Wolfish and Frazier v. Ward, 426 F. Supp. 1354 (N.D.N.Y.1977), prohibiting anal and genital searches without probable cause of inmates at New York State's Clinton Correctional Facility, and goes on to point out:
In neither Wolfish nor Frazier was significant evidence offered in support of the claim that the challenged searches were justified to prevent the introduction of contraband into the facility. Also, in both cases due to other security precautions employed at the facility the anal and genital searches were of little, if any demonstrated security value. Without reviewing all the evidence set forth in Judge Carter's opinion below in the instant case, it is clear to us that here also the gross violation of personal privacy involved in the anal/genital searches of Hurley especially in view of the physical and verbal ...