Rogers v. Lewis & Clark Co.Rogers v. Lewis & Clark Co.
COUNSEL OF RECORD:
For Appellants:
John Doubek, Jonathan King, Keif Storrar, Doubek, Pyfer & Storrar, PLLP, Helena, Montana
For Appellees:
Mitchell A. Young, Maureen Lennon, MACo Defense Services, Helena, Montana
For Amici:
Marty Lambert, Gallatin County Attorney, Bozeman, Montana
Submitted on Briefs: July 15, 2020
Decided: September 15, 2020
Filed:
Clerk
¶1 William Scott Rogers, leading a group of ninety-six named plaintiffs, filed suit against Lewis and Clark County, the Lewis and Clark County Sheriff‘s Office, and various officials from the sheriff‘s office in their official capacities (the “Defendants“), challenging the Lewis and Clark County Detention Center (“Detention Center“) policy to conduct an unclothed visual body cavity search or “strip search”1 of every detainee prior to placement in the general population of the facility, regardless whether reasonable suspicion existed that the individual was concealing a weapon or contraband, as a violation of their constitutional rights and
some point after they were strip searched and denied the motion as to four plaintiffs who were never placed in the general population of the facility after they
¶2 Although we conclude the District Court‘s certification order is not in substantial compliance with the requirements of
- Whether the Detention Center‘s policy to strip search a detainee arrested for traffic or non-felony offenses prior to placement in the general population of the facility without a reasonable suspicion to believe that person is concealing a weapon, contraband, or evidence of the commission of a crime violates Article II, Sections 10 and 11, of the Montana Constitution;
- Whether the Detention Center‘s policy to strip search a detainee arrested for traffic or non-felony offenses prior to placement in the general population of the facility without reasonable suspicion to believe that person is concealing a weapon, contraband, or evidence of the commission of a crime violates
§ 46-5-105, MCA .
¶3 We affirm the District Court in part and reverse in part and remand for further proceedings consistent with this Opinion.
PROCEDURAL AND FACTUAL BACKGROUND
¶4 The Lewis and Clark County Detention Center is the only detention facility in Lewis and Clark County. It houses pretrial detainees charged with both felonies and misdemeanors, individuals sentenced to jail terms, and individuals convicted of felonies and sentenced to the Department of Corrections who have not been moved to a state facility. The Detention Center includes a booking area, holding cells, solitary cells, and a secure area, which includes a library and housing pods with multiple cells per pod. Inmates are frequently housed in areas not designed for long term occupancy, such as the library and holding cells, because the jail population exceeds the designed bed space.
¶5 Unwritten Detention Center policy requires a strip search of any person being placed into the general population of the facility to prevent arrestees from bringing weapons or contraband into the secure housing area of the facility and to identify any wounds, tattoos, or other visible artifacts which might affect individual safe placement. Under the policy, any placement in which two or more inmates have the opportunity for direct physical contact without direct supervision by a detention officer or law enforcement officer is considered a general population placement. Strip searches at the facility are conducted by an officer of the same sex as the inmate. Before conducting the strip search, the officer conducting the search removes his or her body camera and takes the detainee into a private room. The officer instructs the detainee to remove all of his or her clothing while the officer observes. The officer inspects the soles of the inmate‘s feet, the inmate‘s armpits, and inside the inmate‘s mouth. The officer then instructs the inmate tо turn around and spread his or her buttocks while in a half prone position, cough while squatting, and, if male, turn and face the officer and lift his genitals, and, if female, to lift her breasts and remove any feminine hygiene products in use. The officer does not physically touch the inmate during the search.
¶6 The Plaintiffs allege they were each arrested for a traffic or non-felony criminal offense and subject to a strip search as part of the booking process at the Detention Center without reasonable suspicion to believe they were in possession of weapons or contraband. They allege the Detention Center‘s blanket policy to strip search anyone being bоoked into the general population of the facility violates their constitutional and statutory rights. The Plaintiffs brought seven claims against the Defendants in their amended complaint captioned “Constitutional Violations” (Count I), “Negligence” (Count II), “Negligence Per Se” (Count III), “Negligent Supervision” (Count IV), “Intentional Infliction of Emotional Distress” (Count V),
¶7 The Plaintiffs filed a motion for partial summary judgment, а motion for class certification, and a class discovery motion. In response, the Defendants filed a motion to dismiss, which the District Court converted into a motion for summary judgment. After a hearing on the motions, the District Court denied Plaintiffs’ motion for partial summary judgment, granted summary judgment to the Defendants in regard to the ninety-two Plaintiffs placed in general population, stayed the motions for class certification and class discovery, and certified the order as a final judgment under
STANDARD OF REVIEW
¶8 We review de novo a district court‘s grant or denial of summary judgment, applying the criteria of
DISCUSSION
¶9 Before we can reach and address the merits of the issues in this case, we must first address whether this Court has jurisdiction to consider this appeal. The District Court purported to certify this case under
¶10 Parties cannot stipulate certification of an order under
¶11 A district court may direct entry of final judgment under
[i]n so doing, the district court must balance the competing factors present in the case to determine if it is in the interest of sound judicial administration and public policy to certify the judgment as final, and the court shall, in accordance with existing case law, articulate in its certification order the factors upon which it relied in granting certification.
¶12 The District Court certified the order as final because (1) the ninety-two plaintiffs whose claims were dismissed under the order may be realigned with the remaining plaintiffs should the Supreme Court reverse the order; (2) class certification may largely depend on whether those ninety-two plaintiffs are returned to the case; (3) the case could increase or decrease in complexity depending on the number of plaintiffs; (4) class discovery could be enlarged; and (5) the Supreme Court would not be required to determine the application of Florence v. Bd. of Chosen Freeholders of Cty. of Burlington, 566 U.S. 318, 132 S. Ct. 1510 (2012), to the plaintiff‘s constitutional and statutory based claims a second time.
¶13 Upon review of the District Court‘s order, wе find it is deficient to support certification under
¶14 District courts and litigants must be mindful of the requirements of certification under
¶15 We, nonetheless, accept jurisdiction over this appeal under our constitutional power of supervisory control given the
¶16 Supervisory control is an extraordinary remedy, reserved for extraordinary circumstances. Stokes v. Mont. Thirteenth Judicial Dist. Court, 2011 MT 182, ¶ 5, 361 Mont. 279, 259 P.3d 754. “We will assume supervisory control over a district court to direct the course of litigation if the court is proceeding based on a mistake of law, which if uncorrected, would cause significant injustice for which appeal is an inadequate remedy.” Stokes, ¶ 5. “Judicial economy and inevitable procedural entanglements [have been] cited as appropriate reasons for this Court to issue a writ of supervisory control.” Stokes, ¶ 5 (quoting Truman v. Mont. Eleventh Judicial Dist. Court, 2003 MT 91, ¶ 15, 315 Mont. 165, 68 P.3d 654) (alterations in original).
¶17 Under the extraordinary circumstances of this case, we have decided to exercise our power of supervisory control. The questions presented to this Court are purely legal ones: whether Article II, Sections 10 and 11, of the Montana Constitution or
¶18 Further, it is clear constitutional questions of statewide importance are at issue in this case. The Defendants admitted they continue to engage in the challenged conduct, and they believe other detention facilities in the State have similar strip search policies. Failure to review the District Court‘s order under supervisory control leaves these challenged policies in place. Should this Court ultimately reverse the District Court on either of the two issues presented on this appeal, failure to review the issue now could result in the rights of many additional Montanans being violated and the potential liability of the detention facilities conducting such searches continuing to grow. We therefore elect to exercise supervisory control over the two questions presented on appeal.
¶19 1. Whether the Detention Center‘s policy to strip search a detainee arrested for traffic or non-felony offenses prior to placement in the general population of the facility without reasonable suspicion to believe that person is concealing a weapon, сontraband, or evidence of the commission of a crime violates Article II, Sections 10 and 11, of the Montana Constitution.
¶20 The District Court rejected the Plaintiffs’ constitutional claims, concluding Plaintiffs had no actual expectation of privacy recognized as objectively reasonable by society and thus there was no search or seizure that implicated or violated the protections contemplated under Article II, Sections 10 and 11, of the Montana Constitution. The court explained:
when weighed against the need to maintain institution security, safety, and health . . . society would always insist that an arrestee‘s Article II, section 10, privacy right
must yield when they are placed in а jail, detention center, or prison‘s general custody or general population in order to prevent “any new inmate, either of his own will or as a result of coercion, from putting all who live and work at these institutions at even greater risk when [he/she] is admitted to [general custody] or general population.”
(quoting Florence, 566 U.S. at 333-34, 132 S. Ct. at 1520) (alterations in original).
¶21 On appeal, the Plaintiffs maintain they had an actual expectation of privacy to not be strip searched and that society recognizes this expectation as objectively reasonable, because “one of the clearest forms of degradation in Western Society is to strip a person of his clothes.” Deserly, ¶ 19 (quoting Hayes v. Marriott, 70 F.3d 1144, 1146 (10th Cir. 1995)). Further, the searches were not rеasonable because the record lacked evidence to support the belief that increased contraband is being brought into the jail through traffic and non-felony offenders or that strip searching these offenders reduces the flow of drugs, weapons, or contraband into the jail.
¶22 Montanan‘s have a heightened right of privacy given the express inclusion of that right in our state constitution.
¶23 To determine whether there has been an unlawful governmental intrusion into one‘s privacy in search and seizure situations, we consider three factors: “(1) whether the person has an actual expectation of privacy; (2) whether society is willing to recognize that expectation as objectively reasonable; and (3) the nature of the State‘s intrusion.” Deserly, ¶ 16. The first two factors are considered in determining whether a search or seizure occurred, thus triggering the protections of Article II, Sections 10 and 11. The third factor relates to the reasonableness of the search or seizure under the circumstances. Under the third factor, we determine whether the state action complained of violated the Article II, Section 10 and 11 protections because it was not justified by a compelling state interest or was undertaken without procedural safeguards such as a properly issued search warrant or other special circumstances. Goetz, ¶ 27.
¶24 As the Plaintiffs point out, this Court recognized in Deserly that “one of the clearest forms of degradation in Western Society is to strip a person of his clothes” and “the strip search of an individual by government officials, regardless how professionally and courteously conducted, is an embarrassing and humiliating experience.” Deserly, ¶ 19 (quoting Hayes, 70 F.3d at 1146 and Romo v. Champion, 46 F.3d 1013, 1019 (10th Cir. 1995) (internal quotations omitted)). A person has a reasonable expectation of privacy to not be strip searched by government officials and society recognizes that expectation as objectively reasonable. Thus, the District Court erred in holding that no search occurs when detention officers strip search detainees prior to housing them in the general population of the detention facility.
¶25 The analysis does not end there, however. The Montana Constitution protects individuals from unreasonable searches and seizures. We must turn to the third factor—the nature of the State‘s intrusion. While under Montana law a search conducted without a search warrant is per se unreasonable, a warrantless search may, nonetheless, be reasonable when an individual has a diminished expectation of privacy. Spady, ¶ 26. Under those circumstances, a court must “balance the privacy-related and law enforcement-related concerns to determine
¶26 In Deserly, this Court noted “the government has a necessary and legitimate need to protect the security of those working, visiting, and residing in [penal] institution[s] from the introduction of contraband.” Deserly, ¶ 26. Detention officers have a compelling interest to protect the health and safety of detainees and staff. The government‘s interest in security does not turn on whether the arrested person has been charged with a minor, nonviolent offense, but rather whether the individual has been classified for general jail population detainment.2 While we do not march in lockstep with the federal courts in interpreting whether searches and seizures are reasonable under the Montana Constitution, we agree with the United States Supreme Court that “[m]aintaining safety and order at
these institutions requires the expertise of correctional officials, who must have substantial discretion to devise reasonable solutions to the problems they face.” Florence, 566 U.S. at 326, 132 S. Ct. at 1515. “[A] regulation impinging on an inmate‘s constitutional rights must be upheld ‘if it is reasonably related to legitimate penological interests.‘” Florence, 566 U.S. at 326, 132 S. Ct. at 1515 (quoting Turner v. Safley, 482 U.S. 78, 89, 107 S. Ct. 2254, 2261 (1987)).
¶27 The parties in this case do not dispute that contraband and weapons are a perennial issue at the detention center and that contraband and weapons can at times be brought into the facility secreted away on a detainee‘s person. Nor do the parties dispute the detention center has an obligation to prevent detainees from bringing weapons or other contraband into the secure housing area of the facility and to identify any wounds, tattoos, or other visible artifacts which might affect individual safe placement. Plaintiffs have not demonstrated the strip searches at issue are not reasonably related to these legitimate penological interests or that their diminished expectation of privacy before being housed in the general population of the detention facility outweighs that interest such that the Montana Constitution prohibits the practice. Given our heightened right to privacy in Montana, we must carefully consider the balance between an individual‘s privacy intеrest and the penological interest. The Plaintiffs contest the detention center‘s blanket policy, but do not challenge specific practices.3 Under these circumstances, the Plaintiffs
diminished privacy interests do not outweigh the legitimate penological interests of the Detention Center. Although we disagree with the District Court‘s analysis, we affirm its decision.
¶28 2. Whether the Detention Center‘s policy to strip search a detainee arrested for traffic or non-felony offenses prior to placement in the general population of the facility without reasonable suspicion to believe that person is concealing a weapon, contraband, or evidence of the commission of a crime violates
¶29 The District Court determined
¶30 Plaintiffs argue on appeal the District Court‘s ignored the plain language of
¶31 This case requires the Court to determine whether
¶32 “In the construction of a statute, the office of the judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or to omit what has been inserted.”
¶33
A person arrested or detained for a traffic offense or an offense that is not a felony may not be subjected to a strip search or a body cavity search by a peace officer or law enforcement employee unless there is reasonable suspicion to believe the person is concealing а weapon, contraband, or evidence of the commission of a crime.
The statute‘s prohibition on suspicionless strip searches is unambiguous. The statute provides “a peace officer or law enforcement employee” may not conduct suspicionless strip searches on a person “detained for a traffic offense or an offense that is not a felony.” There is no exception provided in the plain text of the statute to the prohibition on suspicionless strip searches of persons detained for traffic or minor offenses. Rather, the statute is clear, officers and law enforcement employees must have “reasonable suspicion to believe the person is concealing a weapon, contraband, or evidence of the commission of a crime” to conduct a strip search of a person detained for traffic or minor offenses. The Defendants admit the detention officers are “law enforcement employees” under the statute. The District Court determined the statute does not expressly apply to a detainee being placed in the general population of a detention facility. But the statute does not need to state such. See
¶34 Further, this Court “must presume in construing these statutes that the Legislature intended to make some change in existing law by passing it.” Mont. Sports Shooting Ass‘n, ¶ 15. In Florence, the United States Supreme Court held the Fourth Amendment does not require the State to have reasonable suspicion to believe a detainee is carrying a weapоn or contraband in order to strip search the detainee before placing him or her in the general population of a detention facility. After Florence such searches were permissible under the federal constitution and presumably permissible under
CONCLUSION
¶35 The District Court‘s order is affirmed in part and reversed in part and remanded for further proceedings consistent with this Opinion.
/S/ INGRID GUSTAFSON
We concur:
/S/ MIKE McGRATH
/S/ LAURIE McKINNON
/S/ JAMES JEREMIAH SHEA
/S/ DIRK M. SANDEFUR