*1 Before S YKES , Chief Judge , F LAUM , E ASTERBROOK , M ANION K ANNE R OVNER , W OOD , H AMILTON , B ARRETT , B RENNAN S CUDDER S T . E VE Circuit Judges .
S T . E VE Circuit Judge . Plaintiffs—a class more than current former female inmates Lincoln Correctional Center—brought action following mass conducted part cadet training exercise They contend circumstances searches—particularly *2 intrusive and degrading manner which occurred— violated Eighth rights.
Defendants—various officials—moved for sum ‐ mary judgment before district court, arguing our cir ‐ cuit’s prior decisions foreclosed Plaintiffs’ Amend ‐ ment claim. district court agreed, concluding that, Johnson Phelan F.3d (7th Cir. 1995), King McCarty F.3d (7th Cir. 2015) (per curiam), convicted do maintain privacy interest during visual ‐ spections bodies. A divided panel court af firmed decision, following same reasoning. We granted Plaintiffs’ petition for rehearing en banc vacated panel’s opinion judgment.
We hold protects bodily for convicted prisoners, albeit significantly limited way, including during visual inspections. We there fore reverse district court’s entry partial summary judg ment Defendants Plaintiffs’ claim remand further proceedings.
I. Background
A. Factual Background consider facts light most favorable Plain
tiffs, nonmoving parties, when reviewing district court’s grant summary motion. Hall City Chicago 2020). On March administrators Lincoln Correctional Center—a me dium security facility Illinois Department Correc tions (“IDOC”) Logan County, Illinois, housing approxi mately 1,000 female inmates—held cadet training exercise. This training exercise simulated “mass shakedown”—a *3 practice where IDOC employees inmates’ living areas and perform the inmates’ persons find contraband. Lincoln Warden Melody Hulett testified she could “think reason than the training ca dets [she] ordered shakedown on March 31st, at the Lincoln facility.” No evidence in the record indicates the presence ongoing emergency heightened concern on day training exercise took place.
Orange Crush tactical team members, cadets IDOC training academy, and correctional officers at Lincoln carried out mass shakedown. Orange Crush members donned full riot gear—wearing helmets, armored vests, and military boots and carrying batons, pepper spray, and shields. After attending briefing, Orange Crush members, correc tional officers, and cadets stormed two housing units—ones Hulett chose at random—banging batons walls, doors, and hands. As exercise began early morning, correctional officers cadets yelled mates wake up form line.
Correctional officers cadets lined up mates rows, forced them stand facing wall, called them “bitches,” threatened put them segregation if were quiet. Cadets practiced handcuffing prisoners. Some elderly cried pain result standing long period while handcuffed. Prisoners typically hand cuffed Lincoln only when sent segregation unit committing serious violation rule. officers directed women gym while scream
ing obscenities them calling them sexually derogatory names. gym, correctional staff forced women stand facing wall, shoulder shoulder. Orange Crush *4 members and officers ordered cadets to perform strip searches on groups four to ten women time. Prisoners were required to stand until cadets strip searched them—in some cases waiting five to seven hours. The women could sit, get drink water, use restroom duration training exercise.
Female cadets performed strip searches, which oc curred bathroom and beauty shop adjacent to gym. The bathroom was open to gym, allowing many male cor rectional officers and cadets see strip searches taking place. The beauty shop was also visible gym and had mirrored walls, allowing those passing witness strip searches. As result, many people who were performing strip nevertheless observed female inmates.
When cadets strip searched women, they forced them remove all clothing and stand line, nearly shoulder shoulder. Officers and cadets ordered women raise breasts, lift their hair, turn around and bend over, spread buttocks and vaginas, and cough several times. Women were forced stand naked long fifteen minutes, far longer than typical because its group nature.
During searches, correctional officers made demean ing derogatory insults, calling Plaintiffs “dirty bitches.” One commented: “No man wants you because you smell like death.” Plaintiffs declared received com ments like “Your Pussy stinks,” “You all fucking disgust ing,” “I can’t believe women smell like this.” officers cadets ordered menstruating remove feminine products dispose them floor overflowing garbage cans, full view others. *5 Women stood barefoot on bathroom floor, which was dirty menstrual blood and other bodily fluids. While waited gym searches finish, women did receive replacement feminine hygiene products and were left bleed on themselves several hours, soaking through clothes and getting blood their legs and feet.
During strip searches, one inmate pulled three pills out her vaginal cavity. Prison officials recovered contraband from cells approximately inmates. Dozens submitted grievances after exercise. Many never received response. No one ever completed internal investigation, and no employee received discipline. B. Procedural Background
Ieshia Brown, Delores Henry, Patricia Philipps, and Jacqueline Hegwood filed putative class action alleging Warden Melody Hulett, Assistant Warden Russell Reynolds, group supervisors and correctional officers vi olated Fourth, Eighth, Fourteenth rights. Plaintiffs sought damages injunctive relief prohib iting future public group strip searches during cadet training exercises. district court certified several classes seeking both
damages injunctive relief: (1) women subjected March searches who remain IDOC custody; (2) women subjected March who had been released custody; (3) women who cur rently incarcerated Logan Correctional Center, facility now houses all inmates formerly Lincoln, will incarcerated there future.
Defendants moved for summary judgment. mo ‐ tion, Defendants did dispute that Plaintiffs’ factual asser ‐ tions, if true, supported Eighth Amendment claim. Re ‐ garding Plaintiffs’ Fourth Amendment claim, however, De ‐ fendants argued that, pursuant to Hudson Palmer, (1984), Johnson “there no Fourth Amendment pro ‐ tection against searches for inmates.” Defendants did raise qualified immunity defense, nor did they argue that Plaintiffs failed to present evidence physical injury pursuant to Prison Litigation Reform Act (“PLRA”). See U.S.C. § 1997e(e).
The district court granted summary for Defend ‐ ants on Plaintiffs’ claim. The court rea ‐ soned that strip searches here were limited to visual spections naked body, putting them squarely line decisions Johnson King . These cases, court concluded, foreclosed Plaintiffs’ claim. Because district court concluded no relief was availa ble to Plaintiffs Amendment, did per form reasonableness analysis claims demand.
The parties proceeded to trial Plaintiffs’ Eighth claim. court instructed jury that, pre vail, Plaintiffs had prove each defendant “was deliber ately indifferent substantial risk strip were being conducted harassing manner intended hu miliate cause psychological pain.” During closing argu ments, Defendants stressed: “To prevail, plaintiffs need prove these individuals intended them harassed humiliated, them suffer psychological pain during searches, didn’t truly intend find *7 contraband conduct the strip search.” jury returned verdict for Defendants.
Plaintiffs appealed the district court’s summary judgment ruling on claim, arguing that the district court erred holding the does not protect during visual bodily searches. addition defending the district court’s ruling, and after fail ing raise the issue below, Defendants argued should affirm district court’s decision because, even if the cover searches issue, they are entitled qualified immunity. Defendants further argued Plaintiffs eligible receive relief they seek several reasons, including they may receive compen satory damages because did present evidence physical injury pursuant PLRA and district court erred certifying Plaintiffs’ damages classes. Plaintiffs did appeal jury verdict on Eighth claim.
A divided panel court affirmed district court’s judgment. Relying Hudson King panel determined fell outside protection Amendment. We granted Plaintiffs’ petition re hearing en banc vacated panel’s opinion judg ment.
II. Discussion review district court’s summary judgment ruling de
novo consider facts draw all inferences light most favorable nonmoving party. Hall Summary appropriate when “there no *8 8 4234 genuine dispute as material fact movant en titled a matter of law.” Fed. R. Civ. P. 56(a). A. Fourth Amendment first address issue heart of appeal:
whether convicted prisoners retain a Fourth Amendment privacy during visual inspections of their bodies. The Fourth guarantees “right of people secure persons, houses, papers, effects, against unreasonable searches seizures.” U.S. Const. amend. IV. Strip body cavity “searches” of “persons” meaning of Fourth Amendment. Florence v. Bd. Chosen Freeholders Cty. of Burlington , U.S. 318, 326–27, (2012); Bell v. Wolfish , U.S. 520, (1979).
The “touchstone” analysis whether person has “constitutionally protected reasonable expectation privacy.” Oliver v. United States U.S. (1984) (quoting Katz United States U.S. (1967) (Harlan, J., concurring)). The protect every subjective expectation privacy, but those expectations “that society prepared recognize ‘reason able.’” Id. (quoting Katz U.S. 361); see also Smith Mar yland (1979). Assessing whether search violated person’s rights “requires bal ancing need particular search against inva sion personal entails.” Bell Supreme Court has yet address specific ques tion whether convicted maintain reasonable ex pectation bodies when comes visual searches. Bell Wolfish while addressing *9 4234 claim against policy of routinely ing inmates after contact visits, the Court assumed without deciding “that inmates, both convicted prisoners pretrial detainees, retain some rights upon com mitment to corrections facility.” U.S.
Subsequently, in Hudson the Court announced limited categorical rule: “Fourth proscription against unreasonable not apply within con fines of cell .” (emphasis added). Im portantly, Hudson left open question whether, what extent, prisoners maintain privacy their bodies. As stated before, we do read Hudson so broadly foreclose right. See Sparks Stutler F.3d (7th Cir. 1995) (“ Hudson did require Court decide what interests retain their bodies, op posed their surroundings.”); Forbes Trigg F.2d (7th Cir. 1992) (“[P]rison inmates retain protected rights bodies, although rights extend surroundings.” (citing Hudson )). Justice O’Connor’s con currence Hudson emphasized narrowness Court’s holding: Court addressed specifically inmates’ “privacy possessory interests personal effects” “searches seizures contents inmate’s cell,” en tirety potentially available inmates Amendment. Hudson (O’Connor, J., concurring). Although dissenting colleague asserts conviction extinguishes all prisoner’s rights, Supreme Court has never extended scope Hudson exclude aspect prisoner’s life beyond her cell reaches Amendment. See King Rubenstein 2016) (“[N]othing *10 10 ‐ Hudson indicates Supreme Court intended abrogate a prisoner’s expectation privacy beyond his cell.”).
Although it did so in Hudson Court generally advises “caution in approaching claims that Fourth Amendment is inapplicable” a categorical rule in a particular context. Hudson U.S. (majority opinion); see also id. (O’Connor, J., concurring) (“The ‘reason ableness’ determination generally conducted a case ‐ case basis[.]”). do not think it naturally follows that, be cause Court created a categorical exception a prisoner’s her cell, Court intended expand that rule also deprive prisoner all protections her body. Indeed, Supreme Court has indicated several times privacy interest one’s body more acute than interest one’s property. See United States v. Flores Montano U.S. 149, (2004) (“highly intrusive searches person” implicate “dignity privacy interests” “simply carry over vehi cles”); Wyoming Houghton, U.S. (1999) (recog nizing searches person’s body receive “significantly heightened protection” compared property searches); Ybarra Illinois (1979) (holding search warrant tavern its bartender did permit body all bar’s patrons); United States Di Re (1948) (hold ing probable cause search car did justify body passenger). These decisions, very least, deter us assuming one’s privacy interest her property tantamount one’s interest her person.
Although Hudson directly address issue fore us, frames analysis. No “iron curtain” separates *11 16 4234 prisons Constitution. Hudson , U.S. at 523 (quot ‐ ing Wolff McDonnell U.S. (1974)). Thus, prison ‐ ers must “be accorded those rights fundamentally incon ‐ sistent with imprisonment itself or incompatible with ob ‐ jectives incarceration.” Id . And, as all inquiries, retain rights only if “‘justifiable,’ ‘reasonable,’ ‘legitimate ex ‐ pectation privacy’” at stake. Id. at (quoting Smith U.S. at 740). As practical matter, certain rights must re stricted make way “a myriad ‘institutional needs and objectives’ prison facilities.” Id. at (quoting Wolff U.S. at 555); see also Bell U.S. at (“[S]imply because prison inmates retain certain constitutional rights mean these are subject restrictions and limi tations.”). Hudson Court concluded right privacy
possessions and living quarters was one such must succumb concerns, as was “fundamentally incom patible close continual surveillance inmates cells required ensure institutional security ternal order.” at 527–28. As result, Court held “society prepared recognize legitimate subjective expectation privacy prisoner might his prison cell.” Id. 525–26. similarly now de cide whether inmate’s expectation bodily “is kind expectation ‘society prepared recognize reasonable,’” given safety security concerns inherent context. Id. (quoting Katz 361).
Strip “demeaning, dehumanizing, undigni fied, humiliating, terrifying, unpleasant, embarrassing, repul sive, signifying degradation submission.”
Mary Beth G.
*12
12 16 4234
City of Chicago
,
We conclude diminished right privacy one’s body, unlike right privacy one’s property sur roundings, fundamentally incompatible imprison ment an expectation privacy society would rec ognize reasonable. therefore join every circuit addressed question hold protects (in severely limited way) inmate’s bodily during visual inspections, subject reasonable intrusions realities incarceration often demand.
See, e.g.
,
Cookish v. Powell
,
Indeed, many our sister circuits concluded that Fourth protects limited right bodily privacy for convicted prisoners, specifically.
See, e.g. Cookish
,
*15 ‐ The Interplay of the Fourth Eighth Amendments
Defendants argue recognizing Fourth Amendment bodily privacy, do today, undermines the va ‐ lidity of the Eighth Amendment. Applying the Fourth Amendment of convicted inmates, they con ‐ tend, nullifies the Eighth Amendment’s subjective intent re quirement permitting Plaintiffs prove only the objective unreasonableness of the searches. conclude the ap plicability of the Fourth does compromise the heightened standard of the Eighth.
As Defendants concede, constitutional rights can co ‐ exist inside the walls of just outside: prisoners, like all citizens, benefit the protection of numerous enu merated constitutional rights, may some times overlap. See United States v. James Daniel Good Real Prop. (1993) (“We rejected the view the ap plicability one constitutional amendment pre ‐ empts the guarantees another.”). As the Supreme Court explained Soldal Cook County (1992), “Where … multiple false arrest violation begins run time plaintiff becomes detained pursuant such process, because process renders imprisonment no longer false. Id. 389–92. McDonough Smith S. Ct. (2019), which likewise addressed accrual § claim, has even less say post conviction status Amendment. And, Manuel City Joliet S. Ct. (2017), Court’s only relevant statement—“once trial has occurred, drops out”—reflected merely “a person chal lenging sufficiency evidence support both conviction ensuing incarceration so Due Process Clause Fourteenth Amendment,” rather than Fourth. Id. n.8. Su preme Court has never announced nor implied conviction destroys entirety prisoner’s rights. *16 16
violations alleged,” courts search “the claim’s ‘dominant’ character” limit inquiry one body constitutional law. Id. Instead, “examine each con ‐ stitutional provision turn.” Id. True, Supreme Court has held unenumerated rights—such as those arising due process clause—do afford prisoner greater protection than Eighth Amendment. Whitley v. Albers , U.S. 312, (1986). But this conclusion specific Court’s sub ‐ stantive due process jurisprudence—claims “covered specific constitutional provision, such Eighth … must be analyzed under standard appro priate specific provision, under rubric sub stantive due process.” United States v. Lanier U.S. 259, n.7 (1997); see also Graham Connor U.S. (1989) (“Because provides explicit textual source constitutional protection against sort physi cally intrusive governmental conduct, Amendment, more generalized notion ‘substantive due process,’ guide analyzing claims.”).
Accordingly, several circumstances, Court has deemed other, enumerated constitutional rights afford certain protections alongside Eighth Amend ment safeguards against cruel unusual punishment. See, e.g. Wolff U.S. 555–56 (recognizing due process rights applied discipline received prison); O’Lone Estate Shabazz (1987) (recognizing First Amend ment freedom religion prison); Lee Washington (1968) (per curiam) (recognizing equal pro tection prison). Similarly, previously con cluded digital rectal prisoner “falls both constitutional protections *17 Eighth Amendment.” Del Raine Williford 1994).
Importantly, Eighth Amendments have different roles to play respect to bodily searches pro ‐ tect different categories of constitutional rights. The Eighth safeguards prisoners against use of searches correctional officers subjectively intend as form of pun ‐ ishment. See Whitley U.S. 319–20. Because reasonable ness an objective test, defendant’s subjective state mind irrelevant to court’s analysis. See Gra ham (“[T]he terms ‘cruel’ ‘punishments’ clearly suggest some inquiry into subjective state mind, whereas term ‘unreasonable’ does not.”). thus protects prisoners searches may related or serve some institutional objective, but where guards nevertheless perform an unreasonable manner, unreasonable place, or an unreasonable pur pose. See Bell 559. This last consideration partic ularly salient case before us: certainly, court need give as much deference administrator’s assess ment necessity training exercise measures taken response actual presence weap ons, contraband, immediate security concerns. Right Bodily Privacy Visual Inspections
Although today we announce convicted maintain bodily privacy during visual inspections bodies, we have always been so clear. In wake Hudson we taken different, sometimes conflicting, ap proaches addressing scope right. several cases, concluded protects some degree pertains bodily searches. See, e.g. *18 18 16 4234 Peckham Wis. Dep’t of Corr. , F.3d 697 1998) (“So, does prison inmate enjoy protection at all Fourth Amendment against unreasonable searches seizures? … [W]e think answer ‘yes[.]’”); Sparks , F.3d at (concluding that Fourth Amendment applies involuntary catheterization of an inmate); Del Raine , F.3d at (noting execution of digital rectal probe of an inmate contraband falls “under both constitutional protections of Fourth Amendment Eighth Amendment”); Canedy F.3d at 185–86 (applying reasonableness test announced Bell searches); Forbes F.2d at (concluding urine tests are searches purposes, searches must be reasonable pursuant Bell ). Indeed, Canedy we explained Hudson foreclosed some but all of inmate’s rights:
Some diminution privacy course be expected prison. See Hudson Palmer (1984) (prisoners are entitled no reasonable expectation cells insuring them protection against unreasonable seizures). Inmates surely do enjoy full sweep constitutional afforded members society. But even so, those who convicted criminal offenses surrender all constitu tional rights. then concluded body cavity “searches conducted reasonable manner.” Id. (quot
ing Bell 560). And Sparks recognized, “Cer tainly Hudson establish interior one’s body *19 ‐ is as open invasion as interior one’s cell.” F.3d at 261.
But we have at least one decision pointing in a different direction. Johnson , we broadly announced that Hudson held that privacy extinguished upon conviction, we affirmed dismissal an inmate’s claim regarding observation his naked body basis. F.3d at 150. Thus, King , at tempted reconcile this inconsistency our case law a bright line rule: retain expectation pri vacy regarding physical intrusions into bodies—such as during digital rectal probes forced catheterizations—but visual inspections them. F.3d at 899–901.
As colleague initially explained his concurrence King rule untenable. F.3d at 901–04 (Hamilton, J., concurring). To begin, it draws no support Supreme Court precedent. Indeed, searches Court evalu ated using reasonableness analysis Bell Florence were visual. Bell 528; Florence U.S. No circuit has announced (nor ever entertained notion) reaches only searches involve physical intrusion by searching official. This good rea son, may attributed law enforcement when physically do searching, but occurs command. See, e.g. City Los Angeles Patel (2015) (describing demand officers hotel own ers produce records search); see also United States Pope 2012) (“[A] Amend ment occurs when police command person reveal something which he would otherwise reasonable expectation thing area revealed *20 ‐ a result of the command.”). This consistent with the over ‐ arching focus the Fourth Amendment reasonableness anal ‐ ysis, which evaluates an individual’s expectation privacy “in what was searched ,” who did the searching. United States Scott F.3d 2013) (emphasis added). To conclude otherwise promotes a distinction ‐ out difference: whereas a manual body cavity search con ‐ ducted prison official would fall within domain Fourth Amendment, which officer orders pris oner manipulate her own body and merely looks on would avoid review. In light considerations, we thus over rule section King addressing plaintiff’s Fourth claim and bright ‐ line rule it announced.
Likewise, we overrule decision Johnson extent deems inapplicable visual spections during bodily searches. That case, like one we address today, involved visual bodily searches, although less intrusive manner: male raised Amend ment challenge female officers routinely incidentally observing them various states undress cells, showers, toilets. Johnson, 145. Johnson read Hudson eliminating all under within prisons thus affirmed dis missal plaintiff’s claim ba sis. Id . That reasoning survive today’s holding. note, however, result Johnson would been no different reasonableness analy sis, given limited nature intrusions issue ever present institutional concerns over safety security. *21 ‐
3. Deference Prison Administrators Having determined that governs searches at issue here, turn attention how courts must perform resulting reasonableness analysis and various considerations should weigh. Bell , U.S. at 559. When evaluating reasonableness, in context strip searches in others, courts afford prison administrators “wide ranging deference in adoption and execution policies and practices that in their judgment are needed preserve internal order and discipline and main ‐ tain institutional security.” Bell U.S. at 547; see also Flor ‐ ence U.S. at Thus, “in absence substantial evi ‐ dence in record indicate officials have exagger ated response considerations, courts should dinarily defer expert such matters.” Bell U.S. (quoting Pell Procunier U.S. (1974)).
Accordingly, Florence Supreme Court noted “[c]orrectional officials significant interest conduct ing thorough search standard part intake pro cess,” visual bodily inspections symbols gang affiliation contraband could create safety secu rity concerns generally reasonable. 330–34. And Bell Court concluded visual body cavity searches pretrial detainees after contact visits, absent evi dence officials performed searches an unreasonable manner, did violate inmates’ rights. 558–60. Indeed, Plaintiffs concede offi cials may body cavity inmates, if officials conduct those appropriate manner, because concerns regarding safety security. Likewise, incidental *22 ‐ observations of undressed inmates—particularly ones that are infrequent or at distance—that are inherent con tinuous surveillance necessary prisons almost always reasonable. Cf. Grummett Rushen , F.2d (9th Cir. 1985).
Consistent principle of deference prison administrators, several sister circuits, after undertaking reasonableness analysis prison searches, concluded these searches violate where level intrusion does outweigh purported justification search. See, e.g. Lewis Sec’y Pub. Safety & Corr. F.3d 368–69 (5th Cir. 2017) (upholding reasonable visual body cavity searches returning work); Nunez F.3d at 1227–28 (upholding visual body cavity where prisoner failed produce evidence was unreasonable); Franklin F.2d 656–57 (holding visual body cavity searches were justified “legitimate security concerns” did violate Amendment); Michenfelder F.2d 332–33 (policy performing visual body cavity searches every time prisoner left returned maximum se curity unit served legitimate penological interest institu tional security); Elliott Lynn 1994) (“en mass” visual body cavity non private area were reasonable effectively respond spike prison violence). can, must, ac count institutional concerns.
As many decisions demonstrate, though, fact institutional concerns significantly diminish persons mean provides no protection all. Indeed, *23 Supreme Court has applied the Fourth reasona ‐ bleness inquiry settings where individuals also have “significantly diminished” privacy rights. See United States Knights U.S. 118–20 (2001) (applying a reasonable ‐ ness analysis the search probationer’s home, although probationers “do not enjoy the absolute liberty which every citizen entitled”); Samson California (2006) (considering the weakness parolee’s inter ‐ est the strength the government’s interest public safety uphold suspicionless parolee reason ‐ able the Amendment).
4. Reasonableness the Search Finally, although have concluded the applies body cavity searches at issue, mean Plaintiffs necessarily enti tled trial their claim. They still provide sufficient evidence searches were un reasonable, considering “the scope particular intru sion[s], manner which [they were] conducted, justi fication for initiating [them], place which [they were] conducted.” Bell
Citing security concerns need cadet training, Defendants argue searches issue were reasonable. resolve today, however, whether Plaintiffs demonstrated genuine dispute regarding reasonable ness searches. Because district court concluded did cover searches issue here, did perform reasonableness analysis. Indeed, Defend ants, motion strike Plaintiffs’ response mo tion summary judgment, conceded “[t]he nature whether were conducted manner *24 ‐ claimed by Plaintiffs are clearly dispute.” On record, we cannot determine whether were, fact, rea ‐ sonable. thus leave that analysis district court perform first instance on remand.
B. Qualified Immunity alternative, Defendants argue that should affirm district court’s on ground that enti tled qualified immunity. They contend that, as March 2011, it was clearly established visual body cavity prisoner could violate Amend ment.
Qualified immunity is affirmative defense “pro tects government officials ‘from liability civil damages sofar conduct violate clearly established stat utory or constitutional which reasonable person would known.’” Pearson v. Callahan U.S. 223, (2009) (quoting Harlow v. Fitzgerald U.S. 800, (1982)). Whether right is clearly established hinges “objective legal reasonableness action, assessed light legal rules were clearly established time it was taken.” Id. (quoting Wilson Layne (1999)). A clearly established right one is “dictated by ‘controlling authority’ ‘a robust consensus cases persuasive au thority.’” District Columbia Wesby S. Ct. 589–90 (2018) (quoting Ashcroft al ‐ Kidd (2011)). “It enough rule suggested then existing precedent. The precedent must be clear enough every reasonable official would interpret establish particu lar rule plaintiff seeks apply.” Id. established general proposition but *25 16 4234 particularized manner so its contours are clear to reasonable official. Reichle v. Howards , 658, (2012).
As threshold matter, we first determine whether this defense is properly before us. Courts generally do consider issues raised for first time appeal.
Singleton v. Wulff
106, (1976);
CNH Indus. Am. LLC v. Jones Lang LaSalle Ams., Inc.
F.3d 692, (7th Cir. 2018). “The underlying concern to ensure opposing party prejudiced by being denied sufficient notice respond to an argument.”
Hernandez Cook Cty. Sheriff’s Office
F.3d (7th Cir. 2011). Plaintiffs argue Defendants waived, least forfeited, their qualified immunity defense by fail ‐
ing raise it summary judgment before district court. Defendants concede they failed raise defense their summary judgment briefs, but they contend they neither waived nor forfeited defense because they ‐
serted it their answer interrogatory responses. Because Defendants failed raise their qualified immun ‐
ity defense their summary motion before dis trict court, instead raised it first time ap pellate brief, they have waived it purposes appeal.
See DeMallory Cullen
F.2d n.4 (7th Cir. 1988) (noting defendants waived argument they enti tled qualified immunity failing raise before dis trict court). This true even though Defendants asserted qualified immunity answer interrogatory re sponses.
See, e.g. Maul Constan
1991) (raising qualified immunity defense answer “is sufficient prevent finding waiver because de fendants did preserve point when had subse quent opportunity so”). previously said
*26
26 16 4234 will “not affirm based on an affirmative defense raised for first time on appeal.”
McDonald v. Adamson
,
Even if we viewed Defendants’ invocation qualified im munity only forfeited, outcome is no different. Waiver forfeiture distinct legal concepts.
Hamer v. Neighbor hood Hous. Servs. Chi.
,
Even if Defendants had only forfeited qualified im ‐ munity defense, this case present exceptional cir ‐ cumstance would warrant its consideration first stance on appeal. aim today, however, provide comprehensive list considerations meet relevant criteria. It suffices say Defendants may still assert defense later proceedings remand, even though did properly preserve district court purposes appeal. True, “the most appropriate time raise qualified immunity issue motion summary judg ment filed before allowing discovery.” Cygnar v. City Chi cago F.2d n.16 (7th Cir. 1989) (citing Walsh Mel las F.2d n.7 1988)); see also Anderson Creighton n.6 (1987). But we previ ously recognized that, “[a]lthough benefit immunity suit effectively lost once parties go trial, al low plaintiffs use ‘qualified immunity’ defense lia bility stage litigation.” Alvarado Picur *28 28 4234 448, n.3 (7th Cir. 1988); see also Behrens v. Pelletier (1996) (allowing appeals resolving question of entitlement to qualified immunity multiple stages of lit igation). Thus, despite failure properly preserve issue for purposes this appeal, Defendants may still invoke defense later motion before district court. See Cyg nar F.2d n.16; see also Oliver Roquet F.3d (3d Cir. 2017). With defense still available Defend ants, there no risk miscarriage justice.
C. Defendants’ Other Arguments
Defendants argue that—if not on scope qualified immunity—we should affirm judgment district court on multiple alternate grounds. reach arguments.
To begin, Defendants argue Plaintiffs failed present evidence physical injury PLRA demands they order receive compensatory damages. See U.S.C. § 1997e(e). Defendants did raise this argument below, therefore waived for purposes appeal. Puffer Allstate Ins. Co. 2012). addition, Defendants raise several arguments Plaintiffs are entitled relief they seek, namely, Plaintiffs lack standing for injunctive relief pursuant City Los Angeles Lyons (1983), Plaintiffs una ble obtain compensatory damages Hulett because brought no individual capacity claims against her, Plaintiffs may receive punitive damages because jury found Defendants on Eighth claim, which mirrors standard punitive damages. Because district court granted summary Plaintiffs’ *29 ‐ claim, it did assess of these argu ments pertaining to availability of remedies to claim. thus also leave issues district court’s initial determination on remand.
Lastly, Defendants seek decertification of Plaintiffs’ dam ages classes. Defendants did file a cross ‐ appeal chal lenge district court’s class certification decision. As a gen eral rule, an appellee file a cross ‐ appeal when he seeks expand his own rights district court’s judgment diminish rights appellant. United States v. Am. Ry. Express Co. 425, (1924); Wellpoint, Inc. Comm’r Internal Revenue F.3d 641, (7th Cir. 2010). As Defendants’ challenge district court’s class certification decision seeks diminish Plaintiffs’ rights, outside scope review absent cross ‐ appeal. Cf. Weitzenkamp Unum Life Ins. Co. Am. F.3d (7th Cir. 2011) (“A cross ‐ appeal appropriate only if prevailing party seeks judgment different rendered district court. … [C]ross ‐ appeals appropriate rou tine cases like ours raise only alternate grounds affir mance independent issue like pro priety class certification. ” (emphasis added)); re FedEx Ground Package Sys., Inc. Emp’t Practices Litig. F.3d (7th Cir. 2015) (per curiam) (indicating decertification class was inappropriate where opposing party dismissed its cross ‐ appeal issue); Joseph Norman’s Health Club, Inc. n.2 1976) (refusing reach question class certification without cross appeal).
III. Conclusion “The continuing guarantee … substantial inmates testimony belief way society *30 treats those who have transgressed against evidence essential character society.” Hudson 523–24. hold bodily one those Constitution guarantees, even though significantly diminished way, within walls prison. It extinguish upon conviction. district court therefore R EVERSED R EMANDED district court assess first stance whether Plaintiffs demonstrated issue fact exists reasonableness body cavity question further proceedings consistent opinion. *31 ‐
E ASTERBROOK Circuit Judge dissenting. My colleagues are right say prisoners are entitled protection from abu sive guards. Misbehaving guards can be criminally prosecuted, the guard was J.K.J. Polk County 2020) (en banc), many have tort claims. But plaintiffs invoke the Constitution rather than sources law. Constitutional protection persons serving sentences following convictions comes Cruel Unusual Punishments Clause Eighth Amendment, not Amendment.
The difference between two liability under Eighth Amendment depends on showing an intent punish improperly, not simply taking action court deems unreasonable. Compare Farmer Brennan (1994) (mental state component Eighth Amendment), Whren United States (1996) (objective standard under Amendment). Plaintiffs’ claim Eighth Amendment was submitted jury, which found de fendants. The jury concluded defendants did not intend subject them unjustified humiliation otherwise punish them way permitted judg ments conviction. The jury’s verdict should end case, open new battleground which judges (and perhaps another jury) determine whether acts were “reasonable.” The sort inquiry my colleagues allow amounts objective component Eighth analysis without subjective component—a sort Eighth lite. That what about. provides: “The peo ple be secure persons, houses, papers, effects, against unreasonable seizures, shall *32 ‐ violated”. It is hard see how rule can be applied con ‐ victed prisoners, for the of conviction extinguishes those very rights. Prisoners are removed their houses, and the jailers obtain custody of their persons; their persons, papers, and effects are constant supervision. People of ‐ ten describe the a guarantee of pri ‐ vacy, but privacy is incompatible with imprisonment. Guards be watchful in the cells, in the yards, in the cafeterias, in showers, and even in toilets, for violence may be planned or perpetrated in any of those locations. Drugs, weapons, and contraband may be hidden or distributed there.
Hudson Palmer (1984), rejected a contention applies within prison walls after a conviction. What said worth repetition:
Notwithstanding our caution in approaching claims inapplicable given context, hold society prepared recognize legitimate subjec tive expectation of privacy prisoner might have his prison cell that, accordingly, proscription against unreasonable apply within confines of cell. recognition of rights for their individual cells simply cannot reconciled con cept incarceration needs objectives of penal insti tutions.
Prisons, by definition, places involuntary confinement persons who have demonstrated proclivity anti ‐ social crim inal, often violent, conduct. Inmates have necessarily shown lapse ability control conform behavior le gitimate standards society normal impulses self re straint; shown an inability regulate conduct way reflects either respect law appreciation others. Even partial survey statistics vio lent crime Nation’s prisons illustrates magnitude *33 16 4234 problem. During 1981 and the first half of there were over 120 murdered by fellow inmates in state and federal prisons. A number of prison personnel were murdered by prison ers during this period. Over 29 riots or similar disturbances were reported in these facilities the same time frame. And there were over 125 suicides in these institutions. See Prison Violence, 7 Corrections Compendium (Mar. 1983). Additionally, informal sta tistics the United States Bureau Prisons show in the federal system during there were inmate homicides, inmate assaults on other inmates, inmate assaults on prison staff, and suicides. There were the same system and over inmate assaults on other inmates and over mate assaults prison personnel.
Within volatile “community,” prison administrators are to take all necessary steps to ensure safety only prison staffs administrative personnel, but also visitors. They are un der an obligation to take reasonable measures to guarantee safety inmates themselves. They must be ever alert to tempts introduce drugs other contraband into premises which, we can judicially notice, is one most perplexing problems prisons today; they must prevent, so far as possible, flow illicit weapons into prison; be vigilant detect escape plots, which drugs weapons may be involved, before schemes materialize. addition these monumental tasks, it is incumbent upon these officials same time maintain sanitary an environment inmates feasible, given difficulties circumstances. administration prison, said, “at best ex
traordinarily difficult undertaking.”
Wolff McDonnell
[539]
[1974];
Hewitt Helms
(1983). But would be literally impossible accomplish prison objectives identified above if inmates retained cells. Virtually only place inmates can conceal weapons, drugs, contraband cells. Unfettered access cells officials, thus, imperative if drugs contraband are ferreted out sanitary surroundings be maintained.
*34
Court’s other decisions has suggested the Fourth Amend ment applies aspect life—if the inmate has been convicted.
Pretrial detainees pose different problem, because per sons awaiting trial cannot be punished. Restrictions on liberty proper only if essential custody institutional order. That why Bell v. Wolfish U.S. (1979), Flor ence v. Board Chosen Freeholders (2012), applied pretrial detainees both Fourth Amendment Due Process Clause Fifth Fourteenth Amendments. Convicted prisoners, however, may punished; they retain rights detainees. That’s principal point Hudson why Justices rejected prisoners’ claim without thinking had modified Wolfish . recent years Court has repeatedly addressed
question: How long after arrest remain applicable? Although some decisions suggested Amendment’s protections lapse when arrested person presented judge, see, e.g., Wallace Kato (2007), more recent decisions drawn line conviction. A detainee retains until conviction. See Manuel Joliet S. Ct. (2017); McDonough Smith S. Ct. (2019). After that, Eighth sets limits institutional management. conviction extinguishes interests,
though interests (such avoiding gratuitous *35 ‐ punishment) remain. If the applies prisoners after convictions, detainees convicts end up the same rights. Yet Wolfish Hudson , many other de cisions hold that different categories have different while custody.
Whitley v. Albers U.S. (1986), rejects a contention that prisoner’s asserted interest bodily integrity is covered by constitutional provision than the Eighth Amend ment. the course suppressing riot, guards shot pris oner, likely unnecessarily. An excessive ‐ force claim free person or pretrial detainee assessed Amendment. See Tennessee Garner U.S. (1985); Graham Connor (1989); Kingsley Hendrickson U.S. (2015). But how Whitley approached an exces sive ‐ force claim. Justices applied Eighth (I’ll return how Whitley understands provision) re buffed invitation derive rules elsewhere, such Due Process Clauses. Whitley held Eighth Amend ment supplies applicable rules riot ‐ control operations inside prisons—though took care observe was so because inmates were “pretrial detainees persons enjoying unrestricted liberty” (475 327).
I recognize Whitley considered Due Process Clauses (deemed inapplicable) Eighth (found controlling) rather than Amendment, but because even plaintiff seems recognized that, light Hudson was off table. Whitley applies Eighth Amendment, Fourth, seizure (bullets count seizures), so majority’s dis tinction between seizures intra events *36 ‐ compatible with precedent—or with constitutional text, for the covers both alike.
In explaining how Eighth applies, Whitley stressed importance of its mental ‐ state requirement—that is, need to show that defendants displayed “obduracy and wantonness” (475 319). They added:
The infliction pain in course prison security measure … does amount to cruel and unusual punishment simply be cause it may appear retrospect degree force author ized or applied for security purposes was unreasonable, and hence unnecessary strict sense.
Ibid . other words, “reasonableness” bad standard for assessing prison management. That rules out Amendment. Court added:
Prison administrators … should be accorded wide ranging defer ence adoption and execution policies and practices judgment needed to preserve internal order disci pline maintain institutional security. That deference ex tends prison security measure taken response actual confrontation riotous inmates, just it does prophylactic or preventive measures intended reduce incidence other breaches prison discipline. It insulate from review actions taken bad faith no legitimate pur pose, but requires neither judge nor jury freely substitute officials who made considered choice.
Id . (cleaned up).
A reasonableness standard withholds deference. It transfers effective decisions from wardens managers judges juries. My colleagues suggest measure deference could preserved making suitable adjustments definition reasonableness, but, aside objection Judicial *37 Branch making up constitutional rules we go along, problem remains that judges (and jurors) are prison ad ‐ ministrators. What administrator may deem desirable, even necessary, juror may deem unwarranted. Jurors aren’t trained prison management have to live with consequences errors. But administrators must live those errors. Guards prisoners may die if judicial second ‐ guessing hampers prison security. Interfering training ex ercises—especially training about how to for contra band—poses that risk.
My colleagues say that training sessions aren’t really management all, so we need defer. I don’t un derstand this. Earlier year court held J.K.J. training guards is constitutionally mandatory. Now it turns out training is so collateral to good management jurors (acting name reasonableness) can design training programs, everything Whitley many sim ilar cases said about need give wardens leeway can be put one side.
Judges modest about ability manage institutions; are generalists, after all, while wardens are specialists. And risible suggest jurors, asked evaluate reasonableness, are more likely than wardens pro duce appropriate resolution conflict between personal institutional interests. If prisons enjoy scope discretion essential sound administration, while pro tecting sadistic conduct, Eighth Amend ment tool job.
Notes
[*] cases dissenting colleague cites stand contrary. Wallace Kato (2007), suggest falls away when arrestee appears before magistrate. Ra ther, Wallace held statute limitations claim §