Ruth Blackburn v. Linwood Snow

searched, had, incident, Blackburn ALDRICH, Before BREYER and Circuit weekly her on basis. She visited brother PETTINE,* Judges, Senior District and virtually During had his visitor. been Judge. March, through period January PETTINE, Judge. Senior District subject fully to the Blackburn had been security in effect before the ad- measures in this case is whether the feder- At issue These mea- of the search rule. vent insti- permits a correctional al Constitution and de- “pat frisks” metal men, sures included and require that all women tution searches, per- both of which were tector wishing to at the children visit inmates fully was clothed. formed while visitor to a search before institution submit addition, required were to leave Blackburn, plaintiff-ap- visitors doing so. In Ruth money and case, personal possessions required to submit all pellee this was * Island, sitting by ignation. des- Of the of Rhode District visiting entering verely time, area.

officials before this standing, had trouble room, visiting separate sweatprints Once inside the left on the wall she was made pro- seating for inmates visitors against “spread eagled.” to lean while nine- vided. A camera monitored television visit, Following Blackburn, ty visiting percent of the area two younger accompanied brother who roving present officials were corrections day, leaving were Jail cutting across Finally, the room. inmates were a lawn that to the They connected road. following searched each visit. stopped Snow, Sheriff who admon- at the April, when Blackburn arrived ished them that this lawn was off limits Jail, sign announcing she noticed new danger visitors because of the that visitors that all would be “skin searched.” visitors might use it “drop” to make contraband She took the term “skin search” to mean Following for inmates. a conversation in “pat which frisk” to she had been rou- protested which Blackburn that she was tinely subject.1 When she reached the contraband, carrying no the Sheriff told however, line, front of the it became clear her that he didn’t “want to see her face that she be strip would have undress and anymore.” around here searched in to visit her order brother. She Jail, The last time went to Blackburn room, was taken to a small she where required she was once more to to a submit clothing. During removed her the search completion search. After the ensued, inspected a female matron search, however, she was informed among by, things, Blackburn other exam- she had been visiting barred from Jail. the ining lifting her armpits, her breasts and why. She was not told The Sheriff later crouching to view her anus. Blackburn given testified that he had this order as a testified sweating that she was and shak- result of the on incident the lawn—al- ing, and felt during nervous and humiliated though he had not so notified Blackburn— procedure. the plaintiff because he the believed that had When next to Blackburn returned the an gesture made obscene towards him Jail, again required she was to submit to a Shortly the close of their conversation.2 strip performed by search—this time a dif- thereafter, brought Blackburn suit chal- ferent Responding matron. to Blackburn’s lenging legality strip the of the visitor inquiry “really whether this search was policy. search was, necessary,” the matron it stated that was undisputed It at trial both the if that Blackburn wished to see her brother. place, above-recounted searches had taken This strip longer peri- second search took a Blackburn, herself, that Blackburn, od of had never time in testimony, her suspected attempting secretly been indicated to thought that she matron this bring contraband into the enjoying “seemed to be institution. what she was do- Rather, ing.” emphatically The the Sheriff matron lifted Blackburn’s stated strip spread breasts twice and that Blackburn was searched crouched to as hands, procedure which, Blackburn’s buttocks with her in matter routine under order, order applied to her equally examine anus and crotch area the terms of his to a flashlight. with including Blackburn testified that all infants and children. visitors— sweating Indeed, she was and shaking more se- the Sheriff believed that it was signed judge 1. Blackburn also testified that she a visi- The contraband on lawn. trial made Jail, slip tor each she finding time visited the in which that no Blackburn made obscene gave person she Instead, authorization to a search of her gesture. the court believed that that, property. She testified with the as Sheriff made his decision based on his conver- sign, "skin search” she assumed search this sation Blackburn on lawn. The court person pat to referred the routine frisks. ruled, however, any damages that claim for resulting properly from this incident was not 2. The Sheriff testified that he barred Blackburn Snow, it. & before Cole v. visiting gesture, because of this not be- (D.Mass.1984). n. 9 had, fact, thought cause drop he she meant to First and strip policy search search violated the Fourth very uniformity of inhered; The by Amendments. court believed that its fairness policy which right a First visitors, Blackburn had to regard searching all strip (though necessarily a visit contact suspicion, the Sheriff any to individualized visit) that the with her brother and search of unfair- perception avoid the he could felt broad,” “unnecessarily was an rule con- ness, effectively the flow of yet check F.Supp. at restriction on exercise testified the Jail. The Sheriff into traband right. The court also concluded of that originally issued the he had visitor highly of the intrusive nature because he but strip search order body cavity of the being it was not April, 1977 that learned in issue— involved in- searches which visual this after investi- He discovered followed. manipulation spection, but of breasts and an inmate who which gating an incident buttocks, blanket search rule as well3—a attempted had drug Valium obtained the satisfy could not Fourth Amendment’s Although the Sheriff officer. assault an requirement. reasonableness in that involved the Valium testified that linked conclusively never been incident had rejecting qualified im- After Sheriff’s visitor, 1974-1977 and that between County’s munity argument defense and involving incidents only five there had been insufficiently it was involved in the contraband, felt he nonetheless visitors and administration Jail have been grave the incident underscored the policy, liable for the found in the posed by drugs institution. danger $177,040 Blackburn in com- court awarded au- statutory to his Accordingly, pursuant damages. pensatory Jail fashion thority Master of the findings on the court’s factual based visitation, he his reissued policies regarding directly the searches had caused Blackburn April, search order physical psychological harm. extensive While, testimony, own the Sheriff by his the court also found that an award Because anoth- necessary he had never heard of interest was prejudgment indicated that harm, fully searched penal compensate institution that Blackburn er award, by plaintiffs view made such an which amounted to every visitor—a shared 1386, $151,080. F.Supp. Joseph Sheriff prison expert, Cannon—the 588 he was his that within nonetheless believed appeal, County press and the On Snow rights to the order. issue First, argue that appellants claims. four temporary a the First nor granted The neither Fourth district against May, policy in of the restraining prohibits adoption the rule order Second, 1978, 1977, argues January, the Sheriff issue here. the Sheriff and at prac immunity permanently qualified to abandon the he entitled agreed Third, County argues searching liability. all visitors. Nine the tice of may properly claim held for days of trial on Blackburn’s liable bench Fourth, opinion appel- both damages followed. In dated the Sheriff’s actions. for 9, 1984, (D.Mass. compensatory of May F.Supp. challenge 586 655 the award lants the of 1984), supplemental opinion dated excessive and award and a as 1984, (D.Mass. inappropriate interest un- August 7, prejudgment 588 as 1386 1984), the circumstances. court ruled that the der the district term, search,” separate conducted of though searches were “strip an umbrella Three 3. A inspection generally to an of a naked district court heard evidence refers Blackburn. The individual, scrutiny subject's of According the to the Court’s the first two. on body cavity body cavities. A "visual search" body findings, search was a "visual the first inspection of anal and extends visual the search," cavity examina- which involved manual body cavity genital A search” areas. "manual breasts, ears, armpits, and but throat tion of degree touching probing of of includes some search, how- body The second not her cavities. body Security & Law cavities. See ever, Enforcement spread a of Black- extended to manual 187, (2d Carey, Employees Cir. 737 F.2d 192 burn’s buttocks. 1984). 562 purpose The fundamental

DISCUSSION the prohibition Fourth Amendment on unrea Constitutionality Strip Search “ sonable searches and seizures to safe ‘is Policy guard privacy security of individu inquiry into the Any constitution against arbitrary govern als invasions ” security ality employed measures a —O., Jersey ment officials.’ New v. T.L. begin pre must penal institution ---, 733, 740, 736, 105 U.S. S.Ct. 83 “prison administrators should be mise (1985)(quoting L.Ed.2d 720 Camara Mu wide-ranging deference in the accorded Court, nicipal 387 U.S. 87 S.Ct. policies prac adoption and execution 1727, 1730, (1967)). 18 L.Ed.2d 930 As judgment are tices that their needed such, although commonly most invoked in preserve discipline order and internal setting, protec the law enforcement security.” to maintain institutional Bell v. apply fully tions of the Amendment to all 520, 547-48, Wolfish, U.S. 99 S.Ct. action,” id., “governmental forms of “ (1979) (citations 60 L.Ed.2d 447 long person ‘the S.Ct. so invok omitted). prison ing peculiar protection Because the so can [Fourth Amendment] ” “reasonable,” ly ‘community,’ “justifiable,” claim a “volatile Hudson v. or a — “legitimate Palmer, ---, expectation of privacy” U.S. 104 S.Ct. ” (1984), by government action,’ has been invaded preserva Palmer, supra, Hudson v. 104 S.Ct. at security of internal “is ‘central to all tion ” (quoting Maryland, Smith v. id., U.S. goals,’ other corrections S.Ct. 735, 740, 2577, 2580, 99 S.Ct. 61 L.Ed.2d Procunier, (quoting Pell v. (1979)). 2800, 2804, (1974)). time, “prisons At the same concede, must, appellants While as they beyond are reach Constitu applies that the Fourth Amendment to the separates No curtain’ tion. ‘iron one from here, challenged they argue actions first — other,” Rutherford, Block v. legitimate that Blackburn no retained ex- ---, 3194, 3198, 82 L.Ed.2d 393 pectation privacy she when entered the (1984) particular fact that mea Like appellants’ Jail. claim that “[t]he Blackburn prison security sures advance ... does not consented searches—which we dis- id., ipso constitutional,” make them fully cuss argument presuppos- later—this facto (Blackmun, J., 104 S.Ct. at es that one who concur decides to enter con- thus, is, trolled do on ring). Our task cases environment must so prescribed entry by terms delicate one: neither wé our for those substitute charge of that environment. But judgment the two own about the wisdom of securi distinct, arguments expecta- are experienced ty pris measures those privacy goes of inquiry tion to whether personnel, nor we may on abdicate our protections Blackburn the was entitled to responsibility to ensure that the limits im Fourth Amendment the first in- posed by the are ignored Constitution not stance, question while the goes consent to But, “necessity.” the name of in our whether Blackburn has waived constitu- view, poses challenge this case a diffi less protection tional to which she is otherwise area, than many cult in this con we entitled. requiring prison clude that a rule all visi cavity search, to a body tors submit to Appellants base their claim that any predicate requirement of indi legitimate privacy expec Blackburn had no suspicion showing vidualized special of on fact tation the at least after the highly need, unusual institutional can search, before, first if she knew not satisfy the Fourth Amendment. Be be subject that she would to such a search cause we view the search issue and seizure prison. framing if she the In went to so determinative, however, as we claim, do not reach the First appellants misappre their question. the Su- hend the relevant doctrine. As

563 noted, many significant rights recently the “con- ... some Court has preme [and] complete of the expectation cases withdrawal of certain trolling” inquiry where expec- rights ‘justified by is whether the are challenged is considerations privacy “ ” recog- to ‘society prepared Id., is underlying penal system.’ is one our 104 tation ’ ” v. Palm- (citations omitted) Hudson (quoting nize as “reasonable.” at 3199 S.Ct. (quoting & n. 7 er, 104 at 3199 supra, 266, 285, S.Ct. Johnston, Price v. 334 U.S. 68 States, v. part Katz 1049, 1060, (1948)). United L.Ed. 1356 88 S.Ct. Thus, suggest, Hudson did not and we do ap- (Harlan, J., concurring)). That (1967) find, security prison a needs of on “no- may put Blackburn pellants have can, alone, standing properly justify the subject exami- she to an tice” that would be “complete withdrawal” of Fourth Amend- entering body her cavities before nation of rights ment who the institu- from all enter “controlling” the Jail cannot determine (except perhaps highly in a unusual tion expectation question: namely, whether riot). prison such as a Be- circumstance of such searches would free that she separate of the “harsh facts” that cause call reasonable.4 society would one was here, visited from the visitor con- society is think is clear that And we it expect clude Blackburn entitled that free citizens recognize” “prepared personal privacy some of at least measure visitors, legit- a entering prison, retain holding, at the Jail. In so we are while di- privacy, albeit one expectation of imate published with all the accord federal of securi- exigencies prison minished are in- opinions of which we aware sure, prison visiting those ty. To be challenges by volve Fourth Amendment them carry with credibly claim cannot prison Auger, visitors. See Hunter v. normally rights they panoply full (8th Cir.1982); Maggio, v. F.2d Thorne they But constitution- enjoy. neither F.Supp. (M.D.La.1984); v. Black loss of made a wholesale ally be to suffer Amico, (W.D.N.Y.1974); cf. one commensurate rights even —nor Employees Security & Law Enforcement the Su- by inmates. For as that suffered (2d Cir.1984)(prison Carey, v. F.2d 187 observed, recently Court has preme expectation pri- limited employees retain in- conviction and facts of criminal “harsh vacy). carceration,” T.L.O., Jersey supra, v. New degree privacy Black free separate citizens entering rele upon retained the Jail is burn In the penal confined to institutions. those question: whether the vant next case, relied on this distinc- the Court T.L.O. strip searches “reasonable” within retain to hold that school tion .children meaning the Fourth Amendment. reduced) (though expectation legitimate particular government Whether school, un- prisoners, while even privacy within “depends on context reasonable recent decision Hudson der the Court’s place.” Jersey a search takes New Palmer, expecta- no which retain such supra, T.L.O., itself, supra, 105 S.Ct. at 741. While in their cells. Hudson tion Amendment, terms, sug by its “imprisonment the Fourth explained the Court mea- circumscription gests that reasonableness is to be or loss with the carries 3199-3200, Palmer, supra, S.Ct. at n. points professor out: son As Amsterdam ("The adopt ‘subjec- Court’s a test of refusal subjective privacy] nei- expectation of can [A understandable; from, to, expectation’ constitu- an tive ther add nor its absence detract rights by pro- generally not the defined claim to Fourth Amendment tional are individual's could, government asserting rights. subjective the could If it the tection. intent of those subjective expectation person’s diminish each self-evi- problems such a standard are in half-hourly announcing merely by privacy omitted). finding of dent.") (citations Without being by a decade 1984 was advanced expecta- subjective that Blackburn lacked being placed all forthwith and that search, we. reject privacy the first we of after tion comprehensive electronic surveillance. under deprive her argument could that its absence Amsterdam, Perspectives on the Fourth Amend- expectation. otherwise reasonable of an 349, ment, (1974). 384 See Hud- 58 Minn.L.Rev. 564 1903, (1979) (Stevens, J., existence of a warrant 60

sured issued L.Ed.2d 447 cause, probable recog- courts have upon dissenting), appel we must balance the circumstances, in limited nized “paramount lants’ in interest institutional of or both these elements absence of one security.” Palmer, v. supra, Hudson 104 per a search unreason- does not make se Supreme S.Ct. at 3201. The Court has at (discussing id. generally able. See admonished prison interest of offi exceptions). “The standard of reasonable- intercepting cials in contraband and main specific governing any class of ness taining internal order must be accorded ‘balancing requires the need to searches great weight, e.g., id.; Block v. Ruther against the invasion which the search ford, supra, 3232-3234; 104 S.Ct. at Bell v. ” at 741 (quoting entails.’ Id. search Ca- Wolfish, supra, 547, 441 U.S. at at S.Ct. Court, 523, Municipal 387 U.S. mara 1878; and this Court has echoed that senti 536-537, 1727, 1735, 87 S.Ct. 18 L.Ed.2d ment, e.g. Fair, supra, Arruda v. 710 F.2d 930). Here, deciding in to what standard 887; Fair, Gomes F.2d 517 cf. prison of officials reasonableness 1984). And, noted, Cir. as we have this held, searching be visitors should must only interest must weighted heavily be in maintaining balance the official interest striking balance, the Fourth Amendment security against the intrusion entailed must, addition, but courts appro accord must, That search. intrusion of priate “professional deference to the exper course, light be viewed in of Blackburn’s officials,” tise of corrections Wolfish, su expectation of privacy. diminished pra, 548, 441 U.S. at 99 S.Ct. at 1879 previously recognized, We have “as have (quoting Procunier, Pell v. issue, all courts that have considered 2800, 2806, 94 S.Ct. gross the severe if interference with a (1974)) in selecting measures calculated to person’s privacy guards that occurs when preserve security facility. See inspection body conduct a visual of cavi Arruda, supra, 710 Appel F.2d Fair, ties.” Arruda 710 F.2d lants need not convince us the Sheriff — (1st Cir), den., U.S. ---, cert. required considerable latitude in accom (1983). As the Seventh plishing goal. this noted, recently body cavity Circuit has “ reject argument security We that the ‘demeaning, dehumanizing, searches are justified rule, needs of the Jail the blanket undignified, humiliating, terrifying, un however, because we pleasant, believe that embarrassing, repulsive, signify ” record this ing degradation case shows that no unusual and submission.’ Mary special City Chicago, security G. v. need for beth 723 F.2d measures such as (7th 1983) (quoting prison existed, all Cir. Tinetti v. visitors Wittke, (E.D.Wis. need, and that absent such unusual 1979), (7th opin. 620 F.2d 160 normally requires par- Constitution a more affd Cir.1980)). The searches which Ruth suspicion ticularized level of before individ- subject Blackburn was involved not wishing jail may uals permissibly to visit —which inspection body the visual cavities subject grossly to a body invasive cases, present in the above but the manual search. So basic is this constitutional spreading lifting of buttocks and of norm, fact, cite, appellants cannot produced exactly feelings these of, any published nor are we aware breasts — federal humiliation in her. Her uncontroverted involving case—other than those incarcer- testimony “very degrad was that she felt ated individuals —in which court has ed”, shaking, sweating and sick to her approved body cavity searches individual stomach, hardly and could stand. suspi- particular visitors about whom no Certainly, position cion

Against intrusion, is harbored. this perhaps “the support precedents greatest personal indignity” finds no the federal searching offi- individual, visitors, upon concerning can cials visit Bell v. Wolfish, always over which debate has been

565 preserving appropriate, privacy burn’s interest of suspicion is level of what required. body scarcely thought her can be suspicion is cavities any such whether surprising appel that F.2d at 674 “minimal.” It is not supra, 672 Auger, v. Hunter view, authority espe lants find no for their unconstitutional (strip conducted searches target cially light of “rea Fourth Amendment were not visitors because “ intrusion, Jones, principle greater that ‘the v. su suspicion”); Thorne sonable (same); greater the reason for v. must be conduct F.Supp. at 918 Black pra, 585 ” search,’ (strip ing Afanador, v. Amico, F.Supp. at 91 United States supra, 387 1325, (5th Cir.1978) (quoting 567 F.2d 1328 conducted unconstitutional be searches 1122, Love, suspi F.Supp. v. 413 target of “real United States cause visitor was not (5th (S.D.Tex.), F.2d cion”). strip aff'd, of 1127 538 898 concerning searches Cases 1025, 646, Cir.), den., 429 U.S. 97 S.Ct. unincarcerated individuals cert. other classes of (1976)); expectation priva of 50 L.Ed.2d 628 see United States a diminished who have Sanders, 1, (2d Cir.1981); F.2d 3 approach. a similar v. 663 cy generally taken have cf. 1868, Ohio, Carey, Terry v. 88 S.Ct. See, Security Employees v. e.g., 1878, (“a 205, 20 889 search which is (requiring “rea L.Ed.2d 737 F.2d at supra, inception prison may at its violate the suspicion” strip search reasonable sonable by virtue of and warrant to Fourth Amendment its intol probable cause guards intensity scope.”)5 cavity prison of erable body search conduct City Chicago, guards); Marybeth G. of Appellants nonetheless insist that sus (requiring at 1273 “reasonable supra, must allowed to imple- administrators be misdemeanor arres picion” to search necessary they ment measures deem to the awaiting money); bail tees confined while security Despite of the institution. the fact 411, F.2d Kallevig, United States prior that visitor search cases have Cir.1976) (1 (requiring either “real sus always special security accomodated the suspicion” picion” or “mere prisons by holding something needs of that 91, border); F.2d Renfrow, at Doe v. probable cause and a search war- less than curiam), den., (7th 1980)(per cert. Cir. justify strip searching a properly rant 3015, visitor, argue appellants that because the (1981) cause” to be (requiring “reasonable policy deemed a “neces- Sheriff blanket person contraband is hidden on lieve drugs and con- sary” to check flow student). strip search minor institution, thereby into the we are traband uphold policy. Appel- constrained to Appellants themselves concede attempt principle lants to find such a exceptions general to the Fourth Rutherford, supra, Block v. which the normally requirement Supreme recently held that Four- Court suspicion some level of individual process rights due teenth Amendment are present before a search is conducted by jail pretrial detainees are not violated when, among appropriate other Block, barring rule contact visits. things, privacy implicated by interests “the Court said that: Brief, Reply at a search are minimal.” record, 11,12 conclude that O., On this we must (quoting supra, Jersey New v. T.L. 745, 8). simply misperceived light the District Court n. Even inquiry scope judicial under expectation privacy, diminished Black- limited spreading by strip of her intrusion entailed search- of Blackburn’s breasts 5. The severe upheld body ing manner buttocks. Even courts that have Blackburn was exacerbated inmates, cavity e.g. Wolfish, Bell v. were carried out. The searches of in which the searches found, shows, supra, n. 441 U.S. at n. 99 S.Ct. at and the record district atmosphere individuals where sufficient searches were conducted "in an or of other e.g. suspicion present, marginal privacy,” United States level of Klein, 1975), have by personnel Cir. received no train- 522 F.2d undertaken who otherwise, no ing, emphasized included or where to those medical or as to how searches, Furthermore, Kallevig, touching United States v. as we at all. conduct id. Cf. noted, (1st Cir.1976). manipulation F.2d 411 the searches included have found ous. He therefore believed the Jail’s exist- When the District Court Wolfish. measures, against ing security con- which counseled he observed many factors visits, operation, adequate have ended. than inquiry its should to be more to tact ‘balancing’ resulted The court’s further address the minimal visitor contraband of its impermissible danger present. in an substitution He also testified that in of Cen- proper twenty-seven years view on the administration his the corrections experienced ad- tral for that of the any Jail field he had never heard of other insti- facility. visitors, ministrators of that strip all tution that searched with- corroborating any out evidence that a visi- 104 S.Ct. at 3234. carrying tor was contraband. had Nor court in this case Because the district any comparable poli- himself heard Snow strip policy search to be found the Sheriff’s Moreover, cy. the evidence was clear not “clearly goal pre- the directed toward only adequate as to the existence of other serving security,” F.Supp. at internal measures, page security see supra, appellants policy reason that but as to the fact the Jail was must, therefore, found un- “reasonable” screened, equipped to offer non-contact vis- disagree der the Fourth Amendment. We option never offered to its—an which was for two reasons. visitor, Blackburn or in lieu of a other First, the district court this case strip Accordingly, search. district “many supporting factors” did not find properly found the drastic Rather, strip search rule. while blanket unnecessary lacking any search rule and the court properly found the rule motivat proportion “problem” pur- at all to the security, concern it also ed Snow’s ported to solve.6 wholly unjustified by found the rule Second, it,7 like before needs, security actual and we see no Jail’s Wolfish rights pretrial concerned Block de finding. error its The evidence showed discussed, already tainees. We have as did perhaps that there had been a few— Block, the Court in both involving and con five—incidents visitors Wolfish “(l )awful brings fact incarceration during traband the Sheriff’s tenure at the necessary about the withdrawal or limita Indeed, Jail. even the 1977 incident involv many privileges rights, tion of a retrac valium, ing an inmate who obtained identi justified by underly tion the considerations triggering fied Snow as search ing penal system.” Wolfish, our rule, conclusively had never been linked to 546-547, (quoting at at Price Cannon, 99 S.Ct. Joseph prison a expert visitor. a Johnston, field, supra, 334 U.S. at experience with considerable in the 1060); Block, at 3231- compared abuses, S.Ct. see the instances of visitor purported rule, 3232 & n. 8. Neither case prior to the with those at rights here: those of other institutions and that there deal with the invoked concluded incidents, surprisingly reject appellants’ a free citizen. We at few and that tempt impute casually to free those that had occurred had not been seri- transfer held, Court, Wolfish, Supreme We ac- do not read the district court to have 7. while suggest, obliged knowledging body cavity nor do we that the Sheriff searches instinc- employ the least restrictive means available tively gave pause,” it the "most safeguard security. institutional See Block v. jail upheld 99 S.Ct. at as reasonable Rutherford, supra, 104 S.Ct. at n. 10. But expose body policy requiring their all inmates to given his naked reliance on the inherent dan- inspection cavities for visual after all contact gers justify regime of contact visits to Fair, visits. In Arruda v. 710 F.2d 886 searches, routine visitor the Sheriff was Cir.1983), prison applied uphold Wolfish required, under basic Fourth Amendment bal- body cavity policy requiring searches of visual ancing principles, to demonstrate some need for visits, following security maximum inmates policy. so intrusive a While the fit between infirmary. trips library to the law well as security requirements privacy invasion rights Both concerned Fourth perfect, need not be we believe that the Consti- of inmates. requires tution it was the fit be closer than here. slips January April, between circum- 16 visitor visiting the same citizens — by inmates. rights suffered scription consenting person of to a search of her brother, dissenting than our Perhaps more property; posted sign that officials this case. central to find this distinction we announcing that all visitors would be “skin Moreover, may extent that Block to the searched”; that Blackburn was free to deriva- have, curtailed the by implication, forego if she wished to visit- leave Jail enjoy contact “rights” of visitors tive ing, but instead chose to submit visits,8 only within the did so it nonetheless searches; voluntarily and that Blackburn process the detainees’ due framework of returned to the Jail on two occasions after inquiry was the relevant rights, where posi- first search. Blackburn takes the imper- jail policy amounted whether the that, matter, tion as a factual no consent individual, of an “punishment” missible because, properly could be found here incarcerated, yet con- lawfully though testimony her and that of Dr. Grassian Here, we are concerned of a crime. victed showed, family circumstances back- by a visi- challenge with a direct ground uniquely caused her to feel so re- Fourth tor, brought under the but with one sponsible siblings for her that she had no pro- constitutional Amendment—a distinct real “choice” but to do whatever was nec- entirely indepen- implicating vision values self-destructive, if essary, even to see her process by the due protected of those dent accordingly reject especially the claim he was in 23 We because clause. brother — visitors to be policy requiring all that a day up hour a lock at the time.9 In addi- of satisfy can the strictures strip searched argument, appellee tion to this factual has solely the Sheriff because reasonableness court, adopted reasoning of the district secur- incanted the words “institutional has rejected the consent claim it which because prison se- read and other ity.” To Block “(a)n right believed that individual whose would curity compel such result cases prison inmate on to visit a is conditioned balancing required by the interest convert subject- her submission to a search is per rule Amendment into a se the Fourth meaning within the ed to ‘search’ search, any person, upholding said to fourth amendment” and cannot be “necessary” by prison officials. thought such voluntarily consented under have requires a the Constitution We believe “ circumstances.” 586 ‘inherently coercive’ suspicion to level of particularized more (quoting Palmigicmo v. Tra- F.Supp. at 661 humiliating and intrusive justify (D.R.I.1970)). visono, here. While we need conducted searches whether, factual decide as a We need not indi- precisely here what level of not define matter, particular circumstances hold suspicion required, vidualized background any con- rendered Blackburn’s circumstances, that, highly unusual absent ineffective, agree gave for we sent she unabashedly requiring none cannot a rule that, matter of the district court as a Amendment. reconciled with the Fourth law, to the Blackburn’s submission argue even if Appellants finally cannot under these circumstances searches unreasonable, deemed otherwise her ac- properly constitute consent because Fourth Amend- did not violate the impermissibly condi- cess to the Jail was consented to ment because Blackburn We do not that submission. tioned on supporting They point to several them. however, must have that Blackburn signed agree, in the record: that Blackburn facts brother that Blackburn's Cir. The evidence showed Feeley Sampson, F.2d 364 9. disciplinary 1978), rights pretrial way detain in this not for we held that the was confined by reasons, a ban on contact visits. ees were not violated received a sentence but because he had however, availability basis, recognized, was, that the We on that institution and at another visit, physi if it involves no some form of even escape administratively risk. classified as "communicative, contact, implicates as well cal protected the first as associational values amendment.” Id. at 373. right may to visit the insti- had a constitutional not condition public employ- continued in order to reach this result. tution relinquishment right ment on to invoke Fifth privilege against self-in- Rather, long has it been settled crimination); id. at 87 S.Ct. at 620 may government not condition access (collecting discussing “rights cases other gratuitous privilege to even a benefit or it constitutional stature whose exercise a upon bestows the sacrifice of a constitu state not condition the exaction of right. Supreme tional As the Court ex price”), applied several courts have plained sixty years ago: in Fourth Amendment analogous situations necessary challenge prop- It is not us, to the one before e.g., Armstrong v. that, rule, state, general osition as a New York State Commissioner Correc- having power deny privilege alto- tion, 728, F.Supp. (N.D.N.Y.1982) 731 gether, may grant upon it such condi- (state may not employ- condition continued impose. tions as it sees fit to But the prison ment of guards on submission to power respect of the state in that is not strip searches); unreasonable Gaioni v. unlimited, and one of the limitations is Folmar, 10, 460 F.Supp. (M.D.Ala.1978) may impose that it conditions which (state may public not condition access to require relinquishment of constitu- civic center on submission to unreasonable rights. tional may compel If the state searches). the surrender right of one constitutional favor, as a may, condition of its it in like We find this constitutional rule manner, compel a surrender of all. It is dispositive of the consent issue here be guarantees inconceivable that embedded cause expressly Sheriff Snow conditioned in the Constitution of the United States upon Blackburn’s access to the Jail sacri may manipulated thus be out of exist- fice of right to be free of an otherwise ence. strip unreasonable search. The Sheriff Commission, Frost v. Railroad 271 U.S. freely having admits to structured the 583, 593-94, 605, 607, 46 S.Ct. 70 L.Ed. visit, any choice to bar absent submission (1925). search; to a he does not claim to have Frost, Since which struck down a state offered wishing those not to be conditioning public statute high- use of searched a facility’s non-contact visit ways compliance on regulatory re- Irrespective screened area. of whether quirements otherwise violative of the due Blackburn right had a constitutional to vis process clause, Jail, the doctrine of unconstitu- it the thought, as the district court tional applied conditions has been privilege, a mere appellants as the argue, context of numerous protec- principle constitutional established in the cases we tions, Sindermann, e.g., Perry v. 408 U.S. have cited is that the Sheriff was not free 593, 598, 92 S.Ct. 33 L.Ed.2d to opportunity condition the visitation on (1972) (state may not condition contin- the sacrifice of protected Blackburn’s public employment ued relinquishment on rights. Fourth any Amendment Nor is it protected speech rights); Sherbert v. say answer to that Blackburn could have Verner, 398, 1790, time, 83 S.Ct. 10 left at or declined to return after (1967)(state may L.Ed.2d 965 search, not condition the first for it very is the receipt unemployment benefits on relin- choice to put which she was that is consti quishment right to free tutionally exercise of reli- intolerable—and it was as intol gion); Garrity 493, Jersey, New 385 U.S. erable the second and third times as the 616, (1967) (state 87 S.Ct. 17 L.Ed.2d 562 first.10 not, course, here,

10. This independently does mean that satisfies the Fourth Amend- government may See, never requirement e.g., condition access to a ment of reasonableness. privilege James, upon Wyman it controls submission to a 400 U.S. perfectly government (1971) search. It is (upholding requirement clear that the L.Ed.2d 408 so, requires, do when the search recipients permit unlike welfare caseworkers to visit that, objectively in the lief he held was therefore find ab unreasonable. We consent,11 Thus, cognizable while the legally district here found sence Fourth violated Blackburn’s strip search that “the evidence did not establish that rights. clearly Snow that his actions violated knew rights,” established constitutional Immunity Qualified correctly the court conclud- objective ed that it was the standard that argues next that he The Sheriff court, govern. must Like the district qualified immunity we accorded should be damages. While we find that it was unreasonable for the Sher- liability administrator, prison strip searching as a iff to believe that Black- agree immunity burn, pursuant rule, is entitled to invoke Sheriff to his blanket search Navarette, defense, 434 U.S. Procunier rights. did not violate her constitutional (1978), L.Ed.2d 24 98 S.Ct. Sheriff contends the law of agree that under the standards set cannot visitor clearly was not Fitzgerald, forth Harlow v. established in 1977 and that he could not (1982), expected predict legal have been future here. that defense has been established developments. unpersuaded by We are Harlow, that: the Court stated argument. hardly It can be debated performing discre- government officials had, 1977, “clearly that Blackburn tionary generally functions are shielded right established” Fourth Amendment to liability from for civil insofar as be free of unreasonable searches. No clearly not violate es- their conduct does then, intimated court had as no court has statutory or constitutional tablished today, intimated that citizens who visit a rights person of which a reasonable penal protections pre institution forfeit the have If the law at would known.... sumptively accorded them the Bill of time the action was not occurred] [the Indeed, Rights. Supreme Court had established, clearly an official could not separates made clear that no “iron curtain” reasonably expected anticipate be sub- Constitution, prisons from the reach sequent legal developments, nor could he McDonnell, 539, 555-556, 418 U.S. Wolf v. fairly “know” that the law be said to 2974, (1974); 2963, 41 94 S.Ct. L.Ed.2d 935 previously conduct not identified forbade Martinez, 416 accord Procunier U.S. unlawful. as 396, 1800, (1974); 40 L.Ed.2d 224 94 S.Ct. 818, 457 102 S.Ct. at 2738. U.S. Procunier, 817, Pell v. 417 U.S. 94 S.Ct. Harlow, 2800, (1974). immunity inquiry 41 L.Ed.2d And the Under focus- 495 Court subjective maintained in inmates retained es not on the official’s belief 1977 conduct, protection Fourth about his but on whether the be- some while because, properly quire inspections prior operating their if considered a business homes all, marketing product. Any “searches” at the visits are reasonable under or constitutional Bell, Amendment); challenge programs the Fourth United States v. can be re- such 667, (2d Cir.1972) solved, (Friendly, many past, 464 F.2d 674-675 as have been on J., concurring) (upholding requirement general case-by-case that air- basis under Fourth passengers line submit to metal detector Amendment standard of reasonableness. 541, 546, 1737, 1741, searches because such searches are reasonable 87 S.Ct. 18 Amendment). (1967). the Fourth As Justice under L.Ed.2d 943 Seattle, explained City LaFave, Seizures, White in See v. a case See also W. Searches and 8.2(K), (1978). which struck down as violative of the Fourth at 677 § requirement Amendment a that warehouse own- law, question permit 11. While this is one of not warrantless administrative consent ers fact, gov- approach property: our here is consistent with of their erning for consent to search. factual standards any way imply We do not that business 218, Bustamonte, 412 U.S. See Schneckcloth v. premises may reasonably inspected be 2041, (1973) (requiring S.Ct. 36 L.Ed.2d 854 93 homes, many private more than situations voluntarily given freely, proof that consent was question accepted regulatory nor do such duress, coercion). threat or and without techniques licensing programs which re- 570 York, (1st Cir.1983), Lanza v. New 370 20 put

incarcerated. the Sheriff on 1218, 139, 384 U.S. 82 S.Ct. 8 L.Ed.2d policy notice that a requiring search (1962). carry no cause to-believe that a visitor was ing contraband violated the most funda made Supreme Court had also principles personal privacy mental justify that to the intru clear 1977 even personal privacy pat dignity sion on involved which the Fourth Amendment clothing, frisk of more an “inar outer than (although “precise stands. See id. at 20 wrongdoing was re ticulate hunch” process rights bounds” of inmate’s due 1, 22, Ohio, quired, 392 88 Terry U.S. clear, yet immunity no available where offi (1967). 889 conduct cial’s violated even basic standards searches, Nor were severe process.) of due The Sheriff consulted no entailed, they new privacy invasion of professional legal authority before im analogous courts in For cases in posing requirement search and there contexts, see, e.g., other United States v. testimony was Blackburn’s ex (1st F.2d 5 Kallevig, 534 n. Cir. pert expert penal knew of no other 1976); Flores, United States F.2d institution with a blanket visitor (1st Cir.1973), den., cert. policy. plainly These facts under (1974); Picha v. mine claim that Sheriff behaved (N.D.Ill.1976). Weiglos, F.Supp. person,” like a “reasonable B.C.R. Trans Indeed, it not until 1979 that Su Fontaine, port v.Co. 727 F.2d preme among Court resolved the conflict Cir.1984) (rejecting qualified immunity lower courts held that could inmates Harlow); Anker, claim under see M.M. v. constitutionally after searched con (E.D.N.Y.), any particularized tact suspi visits without aff'd (2d Cir.1979) (in F.2d wrongdoing. Wolfish, immunity cion of Bell v. su pra. context, prece evidence that there was no a strip policy dent for search is relevant to cannot, therefore, accept argu- We the reasonableness). rejecting its an immu ment rights that the Fourth Amendment situation, nity analogous defense the we holding have relied on in today our aptly Seventh Circuit has stated: “clearly were not established” in 1977. It 1977, is true parameters that the exact require It does not a constitutional schol- authority of official strip search ar to conclude that a nude search [of yet although visitors were not one clear— fourteen-year-old] is an invasion of con- case suspicion,” had drawn the line at “real rights magnitude. stitutional of some Amico, supra. Black v. But fact the is More than any it is a violation of only that more two visitor search principle known human decency. of then, eases have been decided since Hunter Apart any readings constitutional v. Auger, supra; Maggio, Thorne v. su- rulings, simple common sense would cases, pra, Black, of both these like of indicate the conduct the school suspicion concern searches where some in permitting officials such nude search present was and the issue whether was only outrageous was unlawful but suspicion constitutionally was suffi- indisputable principles under “settled Any ground by cient.12 new broken these law.” only cases was to refine the issue how 91, (7th Renfrow, v. 631 Doe F.2d 92-93 suspicion required. Although much is the Cir.1980) curiam) (per (quoting otherwise, Wood v. apparently dissent believes Strickland, 308, 321, required judicial do not think it 95 “specific S.Ct. articulation,” 1000, 992, (1975)). King Higgins, v. F.2d 43 702 L.Ed.2d 214 Appellants’ Security prison employees reliance on & Law En searches of held un- (2d by Employees Carey, v. Til F.2d 187 constitutional the court were conducted forcement 1984), suspected employee wrong- Cir. where court found the defendant when some was immune, There, misplaced. doing. officials is likewise Briscoe, 619 F.2d immunity milias Unidas reject Snow’s We therefore Cir.1980); (5th Overbay accord v. Lilli- claim. (Sher- man, (W.D.Mo.1983) F.Supp. County Liability policies); policies County’s are iff’s Shadid it should not county argues that (E.D.Tex.1981) Jackson, damages for found liable have been (same); Schnapper, Rights Litigation Civil strip search rule. by the Sheriff’s caused Monell, 79 Col.L.Rev. 217-18 After argument rejected The district (1979). acts are agree that the Sheriff’s and we the circum- County under chargeable to n County What the misunderstands here. presented stances county it is not because officials is of a “It is when execution [lo than the were “involved” other Sheriff custom, policy or wheth government’s rule, promulgation search cal] by those by made its lawmakers er Monell, it is liable under nor is it may fairly be said to edicts or acts whose county properly failed because .officials policy, injury inflicts the represent official Rather, it is liable “oversee” Sheriff. entity respon of an government that the county was the official because Sheriff Department Social sible.” Monell County’s elected voters to who was York, 436 U.S. New Services powers for them and to exercise the act (1978); see Accordingly, created state law. 714 F.2d Epping, v. Town Cloutier policy Plymouth Sheriff’s (1st Cir.1983) (“[i]n order for County must re County’s policy, and liable, wrong the constitutional cities to be any injuries inflicted spond in pol to official pursuant committed must be policy. pursuant to that 13 Here, expressly desig icy.”) state law respon as the individual nates the Sheriff Damages security policy with promulgating sible for challenge final is to the dam- Appellants’ facilities. Under

respect to corrections urge They below. first (1979), ages awarded Ann. Ch. Mass.Gen.Laws § $177,040 are compensatory damages of custody and con shall have Sheriff “[t]he injuries Black- proportion” to the county “out of jails in his ... of trol of the therein, agree that the dam- all suffered. We correction and of burn houses of but, having carefully ex- thereto, keep ages and shall are sizeable prisoners committed bearing damages, on deputy jailer, the evidence by himself or his amined the same supports a substan- keeper, and shall be re find that the record superintendent or we appointed he sponsible for them.” Because award. tial County’s jails superintendent of the himself is whether question The threshold Sheriff, was also during his tenure as Snow to establish was sufficient the evidence all visi statutory authority to control given injuries as result that Blackburn suffered 127, 30, tation, to main ch. and M.G.L.A. § The district court strip the searches. of order, id., at the at ch. Jail. tain § in Blackburn’s that circumstances found

Thus, hardly a clearer case there could be “extremely her background made family liability, an official “is county for when of potentially adverse conse to the vulnerable repository of authority final or ultimate the strip intrusive an unwanted and quences of conduct and deci county power, his official search,” and that necessarily considered those must sions problems that psychological and “physical may fairly be ‘whose edicts or acts of one following strip the experienced plaintiff policy’ for which represent official said strip by the directly caused were may responsible.” Fa- searches county be held the defendants, govern- local Unlike individual (1980). interpose the defense of mental entities immunity. Mo., City Independence, Owen v. of searches,” no clear id. at 666. We see and had abated at the time trial. findings. in these factual further error Grassian indicated he traced post symptoms syn- traumatic stress amply The demonstrated evidence the symptoms drome to searches. These predisposed background that Blackburn’s feelings guilt depression, included and severely react both to the her to nightmares recurring in which Blackburn being put themselves and to searches jury imagined laughing at her naked submitting the “choice” of to them fore body, difficulty sleeping. and Dr. Grassian going visits with her brother. Blackburn symptoms linked these ulti- Blackburn’s family the member of her who was mately attempting suicide dropping and out by not beaten her father. was alcoholic college. Appellants’ psychiatric expert, on the case Psychiatrists both sides of tes He, Zinberg, too, Dr. disagreed. Norman “special as a result of treat tified the that the believed searches were ex- afforded, developed she ment” was she her, tremely painful- uncomfortable for and self-destructive, heightened, and often ly forced her to choose her between own responsibility sense for others best and interests those of her brother. family. guilt obligation This sense of and Zinberg But Dr. did not think searches was exacerbated she fact that was “devastating” her, nor he caus- did father, sexually molested her even while ally problems link searches to the she spared physical beatings. being This Indeed, later encountered. he believed abuse, according testimony to the of Black sexual “improved” Blackburn’s abilities af- Grassian, psychiatrist burn’s Dr. caused ter the searches. develop great guilt anxiety her to and court, sexuality finder, about for extreme as fact thus con- accounted was physical radically self-consciousness about her own fronted with two assess- different development. showed, The evidence for ex ments of Blackburn’s reaction to the despite conflict, ample, good resolving just otherwise aca searches. such a high school, record in rely heavily judgment demic she failed on the of the “[w]e court, physical education who because she refused to trial has had the benefit presence hearing shower of the observing of others. Like all evidence and wise, she avoided physical contact with demeanor witnesses.” Clark v. during and, Cir.1983). fact, her Taylor, males adolescence 710 F.2d Hav- had, age 18, benefit, begun ing having sexual first rela had heard tionship shortly before she first tell her story, Blackburn own the court testimony, searched. Dr. credited Grassian’s found directly searches caused The evidence sharply was far more divid- injuries Blackburn enumerated above. question ed on the whether appellants Although argue those to us that did, fact, searches inflict substantial proven, causal links were not the evi- appellee. on harm Dr. Grassian considered points, dence is divided on several can- directly responsible for a num- say findings not the court’s problems ber of serious Black- which beset clearly erroneous. April, testified, after burn 1977. He corroborated, testimony her own that she the fact of damage is estab- “[OJnce developed phobia a lished, after in judge about sex trial has much latitude searches which fixing not caused her to amount damages.” Rivera off her relationship, Rexach, break first sexual but v. Benitez de F.2d Monrales omitted). 882, Cir.1976) (citation later manifested itself as a severe sexual dysfunction. discretion, dysfunction, That which ren- Absent an abuse of T S Ser- & Crenson, 722, her dered unable to have sexual relations vice Associates v. 666 F.2d Southworth, experiencing spasms, (1st Cir.1981); muscle ri- 728 Brule v. gidity pain, 406, (1st Cir.1979), persisted will not apparently 611 F.2d through marriage Blackburn’s subsequent ordinarily disturb the amount awarded. 898, 398, 102 S.Ct. 70 L.Ed.2d 213 in actions un 454 U.S.

Damage awards Here, compensa (1981). “provide fair the trial court made a find- 1983 should der § deprivation by the injuries ing necessary. caused that such an award was tion for 247, Pipkus, 435 U.S. rights.” Carey v. But the did 98 S.Ct. findings. the bases of its detail rights that civil (1978). cases hold Our a We see a risk this case that at least distress, mental may recover for plaintiffs portion prejudgment of the award of inter- 14; supra, 710 F.2d at Taylor, see Clark may improper. have would est been One Southworth, supra, 611 F.2d Brule v. any an awarded normally expect amount mental, physical well as as 411. While compensating is aimed at for future may experienced be suffering Blackburn suffering, or emotional loss to be pain, Taylor, quantify, see difficult to Clark lump with- included in the sum award itself 13-14, by the we are satisfied supra, at any Certainly interest. out additional findings that factual court’s detailed designed compensate that was the award $27,040 awarded, including for fu- payments for future medical should have costs, to actual corresponded ture medical (pre-interest) included in the fixed been per- injuries of which and serious —some that, invested, in an amount if would sum note, well, that through trial. We sisted grow equal likely charged the fees depended not have size of award need Marr, future times. Lakin v. 732 F.2d Cf. idiosyncrasies of Blackburn’s wholly on the Moreover, (1st Cir.1984). history predisposition personal large award itself was and it was based conducted damaged by strip searches be type upon intangible loss—the of loss present here—al- the circumstances under usually (pre-interest) more reflected surely proverbi- though the took his Sheriff than, say, past “liquidated” lump sum courts he found her. Other al victim as amount, (rep- loss of fixed to which interest even a approved large awards for have sum) then resenting loss of use of the search, see, e.g., Marybeth G. v. single plaintiff appropriately added to make the supra, 723 F.2d at 1275- City Chicago, $60,000 whole. pretrial (upholding award of search), detainee for one doubtless circumstances, these we believe Under grossly nature recognition of the intrusive need for specific findings that more on the here, Moreover, where, as practice. interest, including finding prejudgment prison official makes upon the date which award as to practice, and therefore matter of routine commence, properly are interest should compels all who wish to enter the institu- must be remanded necessary and case grievous to this repeatedly tion to submit Therefore, them. the case is to obtain invasion, correspondingly higher damage re- part, and vacated and affirmed manded in appropriate. are See Hunter awards part, proceedings consist- supra, 672 F.2d at 677. Auger, opinion. ent with this Appellants also claim that interest was prejudgment court’s award of ALDRICH, Senior Circuit BAILEY in cases improper. We have held dissenting. Judge, pre an award of brought under § examining the of which Before bricks interest, though mandatory, judgment built, I note its this ultimate structure compensate “necessary made if $328,120, $177,040 being in dam- totality: Bishop, plaintiff] fully.” Furtado v. [the interest, $151,080 prejudgment ages denied, (1st Cir.), 604 F.2d cert. times, April three plaintiff was because to a May subjected and (1979) to the . The decision is committed visiting at a with her brother in connection Heritage fact finder’s discretion. Homes Although District, prison. there was Massachusetts Water Attleboro Seekonk touching private denied, or even Cir.), probing, no F.2d cert. orifices, (I bodily basically, the court use the term “So it was a minimum institu- court, tion with maximum it____ meaning security people in throughout as “court” majority The of them court) were there the district distinguished drug mostly—some for of them perhaps the “intrusion characterizes [as] related — drug were direct waiting sentences or personal indignity’ searching greatest ‘the them, drugs, majority trial for or the upon an individual.” It officials can visit probably, breaking entering and or dif- because of finds “exacerbated” things support ferent drug habits.” although “marginal privacy,” thing problem that causes the most [T]he room, searches were conducted a small them____ drugs and the control of matron, by single with no one else I early returned from Florida in [When present. Damages were also exacerbated April, I reports, reports had verbal 1977] matron had received no medi- because the from different officers that things were training, although cal there was no evi- getting out hand in the institution. start, however, injury. dence of medical I There right were several inmates after plaintiff’s claim, Fourth Amendment high.” (Emphasis supplied.) visits were qualified and Sheriff Snow’s claim to immu- done, answered, Asked what he ordered he nity. questioned proce- “I about the search acknowledges “prison court ad on, going dures that was and I found out wide-rang ministrators should be accorded they were not searching visi- deference,” ing and that assessment of tors. ISo ordered it reinstituted.” task,” these claims involves “delicate and requiring For not suspicion, individual de- opinions. included, right cites the Not testified, fendant however, and, generalizations, sug in its I drugs diapers had found in babies’ “[W]e gest, adequately in thinking, its is the fol before and we have found them since — lowing from Rutherford, Block v. ---, 3233-34, 104 S.Ct. 3227 at Reports drugs also showed found sani- (1984). judicial can “We take notice tary napkins underpants. and that the unauthorized use of narcotics is a contradicted, testimony None of this problem plagues virtually every penal affirmatively rejected. or I do not know country.” and detention center in the “Vis what the court means “the district court easily guns, knives, itors can conceal ‘many this case did not find factors’ drugs, or other contraband in countless supporting the blanket search rule.” ways pass them to an inmate unnoticed It is true the district court devoted vigilant even the In most observers.” reasons, a footnote to defendant’s ne- stead, says, the court believe “[W]e glecting specific testimony, merely re- the record in this case shows that no un citing Reports that the Incident “indicates special security usual need for measures very that visitors were involved in few such as search of all visitors drug weapon related incidents.” The existed.” detail, gives referring more to de- reasonableness, respect With defend- testimony fendant’s in- “five incidents testified, ant volving visitors” while the searches were “[Plymouth basically supposedly a is] suspended, “only and characterizes this as institution; however, security minimum a few.” way operating past we were sev- serious, prisons Drugs can be years, backlog Walpole eral with the spe- testimony defendant’s revealed he had things, holding we were one—at drugs problems. cial It cannot be said that point I had 26 or 27 inmates out of inescapably could be found some other inmates, Walpole, and I had another 25 manner, they Is the court to were not. federal inmates. “capricious say defendant’s conduct was justified by jail considerations

[and] 575 today question whether conduct found un- Sampson, 570 F.2d Feeley v. security,” Cir.1978), only five constitutionally clearly excessive was es- because body of spite in got by searches in The cases tablished to be such 1977.1 court’s Block, 104 v. inmates? approach almost seems to be that exces- Rutherford said, “In the court S.Ct. siveness, obviousness, objective and are Wolfish Wolfish, U.S. not, [Bell 1861, They and the same. are and start- one (1979)], we sustained L.Ed.2d 447 position from the that defendant’s ing se- challenge the against a Fourth Amendment curity “wide-rang- decisions are entitled to body cavity conducting routine practice of deference,” ing unless he should have following vis- contact searches [of inmates] wrong, pages I find the known them four its, only one though there had been even singularly unpersuasive. attempt smuggle contraband reported Apart generalizations, the court’s cavity.” facility body in a into the respect to the chief reliance with law plaintiff speaks court as Finally, the “analogous” are three cases: our deci no case person,” says there is “free Flores, involving Kallevig sions bor incar- approving strip searches of “[non-] Weiglos, der searches and Picha v. a school origi- (emphasis individuals” cerated analogizing principal case.2 In border nal). place. person This is to confuse suspicion, there no’ searches where was plaintiff from the de- different was How neglects The court two matters. first is also, who, had been Wolfish, tainees in permissible that the extent of intrusion is is, point plain- nothing? convicted need, measured and there is a to be prison, “smuggling tiff inside a was a search basic difference need between contact visits.” Ruther- byproduct [is] the individual simply to discover whether 104 S.Ct. at 3233. ford, has committed a crime and one where the least, While, question I very at the objective protection public, is the of the determining unconstitu- facility in court’s axiomatic, security. It is such as further tionality, pursue I will not be- example, right is far more that there regard I only secondary it is to what cause embarking airplane passengers than error in this deep, and conclusive as debouching. those who are Cf. United case, defendant’s the short shrift accorded (5th Wehrli, F.2d 408 Cir. States immunity. It qualified claim of denied, 1981), cert. S.Ct. originating captious to note that the court’s 958; Singleton Com in this case is summary begins, “At issue Revenue, 606 F.2d Internal missioner permits a federal whether the Constitution Second, (3d Cir.1979). it not true that is that all require correctional institution here; suspicion suspicion there was no men, wishing to visit and children women factors were in the situation. These was to a inmates at the institution submit in Bell v. what moved the Court so,” doing and concludes search before Wolfish cavity of de permit body routine strip search we find that “Because tainees, visits, without individual sus after Blackburn’s Fourth violated here, degree They present are to a picion. liability.” How- rights, we affirm as to in the commencing present border page and were ever, is they If the court feels pages searches at all. four the court devotes I, course, unhelpful. subjec- Weiglos peculiarly In addition to agree the court 1. being another district court case from mere given, the district court tive reasonableness — circuit, goes ground opinion on the off found, good faith —is defendant acted in participated in a warrantless the search was time, the court seems not the test. At the same officer, indicating that its deci- police taking faulting for not defendant inconsistent might it been the school be different had sion Fitzgerald, legal Under Harlow v. advice. searching principal on his own. Defendant's (1982), charge principal position here was akin to falls on whether the law a defendant stands or school, police See 410 not to the officer. "clearly established." F.Supp. at 1220. enough, charge this still does not ant present security prison not was of a low analogous, cases let alone temporary guests

make those from a maximum clearly expositional. security institution. Offended visual searches; cavity body seemingly regarding point, apart Wolfish, The cases prison a visitor inside a as fundamentally court, helpful anything to the which is but different from an “incarcerated individual” subsequent are the visitor's cases of Hunt (though nothing is clearer (8th Cir.1982), than the fact F.2d Auger, er v. prison upon Em searches are based Security and Law Enforcement (2d Carey, present v. 737 F.2d 187 Cir. ployees danger, punishment, cf. Block 1984), long both decided after 1977. Hunt (1984)), Rutherford, v. S.Ct. 3232-34 er, pre-Harlow, gave thought was no which finding I that in “clearly believe the law qualified immunity. Interestingly “pre- established” and defendant’s conduct enough, while the court affirmed the in unlawful,” Harlow, viously identified as junction, immunity as a sort of fire-side 457 U.S. at S.Ct. the court damage reduced the district court’s find Harlow, grossly violates both its letter and nominal, ings although I have would spirit. its thought justify that a search would assumption On the that I am neverthe- damage specific proof. emotional without wrong, I damages. Except less turn to for Carey a divided court held routine avoidable, damages I believe I do not in- unsuspected prison searches of award, gross tend to dwell on the I but do excessive, guards was but the court unani point remark that for the court to to the mously clearly held the law had not been $60,000 verdict in Marybeth City v.G. “operated established. Defendants in an (7th Cir.1983), Chicago, 723 F.2d 1263 area in which the law was not charted quote description plaintiff’s the court’s F.2d, clearly.” 737 at 211. I do not under body cavity “demeaning, search as dehu- finding clarity by stand court’s distin manizing, undignified, humiliating, terrify- guishing ground on the case ing, unpleasant, embarrassing, repulsive, employee suspected wrong “some was signifying degradation and submission” is bar, doing.” In the case at the rou somewhat wide of the mark. Marybeth G. searches, tine some visitors were Wolfish everything was which this case is not. suspected wrongdoing. matron, being Rather than alone with the simple The fact court is cites no there, plaintiff alleged misdemeanant denying qualified even recent immuni- case bail, awaiting strip-searched within the was ty circumstances; viz., special group view of two male officers and Anker, King Higgins, and M.M. v. viola- prostitutes “jeered” who at her. The audi- regulation, tion of and hence constructive only unnecessary, ence was but inex- faith; Transport bad B.C.R. Co. Fon- cusable, surely and would cause maximum taine, respect, actual bad faith. With due Further, humiliation and embarrassment. particularly having in mind Security, etc. clearly privacy this was an invasion of Employees sorry this seems a Carey,3 prosecution. express- aid of Here demonstration of establishment clear ly purpose found that defendant’s was se- curity. strong purpose There is a social behind Marybeth inapposite for a more G. perhaps Harlow v. Fitzgerald, nowhere plaintiff important reason. There the had important dangerous more than in the area Here, presumptive- safety, pardoned and I no alternative. at least referring ly, plaintiff back to the fact that this defend- had a choice.4 This raises the — ---, court, Leon, plain- properly, 3. Cf. United States v. 4. The does not resolve (1984), claim, magis L.Ed.2d 677 disputed unre- tiff's defendant and below, trate’s decision is reasonable when issue is "suf “family background” left solved that her disagreement among thoughtful ficient to create her "no real 'choice' but to do whatever competent judges.” defended, part, upon plaintiff’s damages. dis- ant fail- question of avoidable however, court, holding counsel, its based on ure to ask for who would trict have “right visit” conclud- plaintiff had a early his release. The court obtained said to the ed, that she submits “The mere fact “intentionally heedlessly that one who ‘voluntary’ where not render it search does protect failed to his own interests” was ‘inherently in coercive given is her consent chargeable consequences, with the but held Palmigiano v. Travi- See circumstances.’ plaintiff was uneducated and un- (D.R.I.1970).” sono, attorney informed and did not realize an “right” a agrees, but adds that The court could have obtained a release. Cf. Wil- ... unnecessary. to visit was “[WJhether City v. Albemarle Board liams Edu- privi- or a mere right ... a constitutional cation, (4th 485 F.2d 233 and n. 1 not free to condi- lege, ... the Sheriff was Cir.1973) (duty mitigate damages). opportunity on the sacri- tion the visitation helpless Plaintiff was not a individual. protected Fourth Blackburn’s fice of accept Even if one were to her claim that any an- rights.” “Nor is compelled everything she felt to do neces- could have left say that Blackburn swer brother, sary sug- to see her she failed to time, to return after any or declined gest any why reason she could not have search, very for it is the choice first special problems told defendant of her put that is constitutional- to which she was special for treatment. asked She as ly intolerable—and it was intolerable woman, helpless jail, an educated but (Em- times as the first.” second and third list, college, on the and there dean’s was no original.) phasis speak up.5 indication that she was afraid to entirely concept. novel The This is an fact, high sought In school she had nothing suggesting that be cites exemption compulsory from the obtained rights are involved re cause constitutional ground physical very examination on the covery is broader than for violations of hypersensitivity. Perhaps defendant rights; plaintiff a section 1983 other refused,6 would have but to be able disregard ordinary principles, such as can recover substantial risk, assumption of the and volenta non fit attempting (complain- them least to avoid are injuria. Rather section 1983 actions certainly ing to the matron was not the guided by analagous common law tort to be way) notify prospective or to defendant in principles, except in unusual cases where advance, highly There is to me offensive. provide remedy. See these would not silently persisting injustice is a basic 247, 258, Carey Piphus, incur, testified, extraordinary plaintiff (1978). S.Ct. seeking extraordinary re- injuries, and then Kern, (5th Thus in 407 F.2d 781 Whirl change covery. Section 1983 should not Cir.1969), denied, 396 U.S. cert. defendant, this. If the court is correct that plaintiff a 1983 faith, though good was inex- imprisonment. subjective The defend- sued for false self-destructive, important, necessary, if to see her it is it is not to be dismissed on even ground duty brother.” in its that the district court failed (F.R.Civ.P. 52(a) ) finding. to make I think I should comment on the court’s foot- regarding plaintiff’s de- note 2 encounter with 6. Defendant was no hardnosed individual is fendant when out of bounds on his lawn. It testified, regard of the to visitors. He "[0]ne finding "made no that Black- true that the court things change visiting first I did was to gesture.” burn made an obscene That is no just Saturday to be and Sun- hours. Visits used exhibit, Inci- answer to an offered an official day changed every them to eve- afternoons. I Report by guard, plaintiff heard dent who ning Saturday Sunday afternoons [and] Sheriff, "yelling she raised her obscenities holiday was no con- added afternoons." There hand, right giving finger’ the Sher- 'the towards that he It is not to be assumed tradiction. orally to as iff.” The obscenities testified plaintiff, been in- refused had he would have calling f__.gpig.” was no defendant "a fat There formed, special non-contact fa- of her need for important contradiction. If the matter is it, cilities. enough for this court to mention and I think date, cusably quasi-contractual setting in his concern about excessive of a inter- insufficiently concerned about drugs, and unliquidated est on an sum does not com- unwarned, plaintiff, I when he believe demand, mence until there is a normally should, most, be held for no more at the filing complaint. original reasonably foreseeable. As than what was complaint sought only here injunction; case, defendant the court decides it was not until sixteen months later that count. down for the plaintiff damages $11,- amended to seek — actual; $20,000 punitive. hypercritical It almost of me to There is no seems law, I complain, hap justification continue to but neither am at common of even under py prejudgment statute, about interest. Furta awarding Massachusetts (1st Cir.1979), F.2d 80 Bishop, do v. interest for those sixteen months. denied, cert. however, basically, More I believe the held7 that the 62 L.Ed.2d 672 we Massa suggestion dividing intangi- court’s imposing prejudgment in chusetts statute future, past ble award between complaint date of the terest from the former, awarding sup- interest on the applicable rights to a civil action for ported by authority neither logic. nor unliquidated damages physical —there past suffering Plaintiff’s for did beating. rejected the We Massachusetts but, years, not all date plain- back seven statute and vacated the court’s award. We tiffs’ counsel in such always cases are that, recognize did in the factfinder’s dis pains emphasize, day day are a to contin- cretion, might necessary it sometimes be interest, uum. To begin- award from the fully award such interest order to com ning, on the accumulation to date makes no pensate plaintiff. original In its find sense. Furtado’s “discretion” did not in- here, ings judgment, and in its order for principles. peculiar- voke new I find nothing the district court said about inter ly improper exception time to devise an Apparently applying est. the Massachu general respect rule to intan- statute, judg setts the clerk included in the gible, damages, prejudgment continuous in- ment, “Prejudgment interest at the rate of terest is not to be awarded at all. See $151,080.” per year: parties Both 12% Boston, discussion in Cochran v. 211 Mass. motions; post judgment filed defendants’ 171, 172-73, (1912); 97 N.E. 1100 interest, McCor- plaintiff’s, to strike the award of Damages mick on 54-57. modify described the court as one “to its §§ opinion finding support to make a of its judgment I would vacate the and order replied, award.” To these the citing complaint If dismissed. this is not cor- Furtado, prejudg it had “awarded rect, I finding would remand for a of un- ment interest necessary because was damages, avoidable not to exceed those compensate plaintiff fully injuries for the foreseeable, reasonably interest. she had suffered.” It supporting made no findings. agrees subsidiary findings

The court (F.R.Civ.P. 52(a)), necessary says portion

that “at least a of the award ... improper.” quite have been This is a

inadequate place, In the concession. first $27,040, judgment included calculated

total of future medical bills. There could adding years

be no occasion for seven back ($23,000) “fully compen-

interest at 12% plaintiff expenses yet

sate” in- Second, contractual,

curred. absent some editorial; reversed, judge quite correctly

7. The "we" is I was the so.

Case Details

Case Name: Ruth Blackburn v. Linwood Snow

Court Name: Court of Appeals for the First Circuit

Date Published: Sep 20, 1985

Citation: 771 F.2d 556

Docket Number: 84-1736

Court Abbreviation: 1st Cir.