*1 JORDAN; Bagley; Sharon Nina Susan

Hanson; Entz; Yvonne Sandra

Wood, Plaintiffs-Appellees, Riveland; GARDNER; Law- Chase

Booth Warden; Vail; Kincheloe,

rence Eldon Alfresio, Defendants-Appel-

Richard

lants,

Washington Corrections State Association,

Employees

Defendant-Intervenor. JORDAN; Bagley;

Nina Susan Sharon

Hanson; Entz; Yvonne Sandra

Wood, Plaintiffs-Appellees, GARDNER; Riveland; Law-

Booth Chase Warden; Vail, Kincheloe, Eldon

rence

Defendants-Appellants,

Washington State Corrections Association,

Employees

Defendant-Intervenor. 90-35307, 90-35552.

Nos. Appeals,

United States Court

Ninth Circuit. Aug.

Argued and Submitted 25, 1993.

Decided Feb. *2 Gen., Mix, Atty. Olym- D.

Kathleen Asst. WA, defendants-appellants. for pia, MacDonald, Ford, Hoague Timothy K. & Seattle, WA, plaintiffs-appel- Bayless, lees. WALLACE, Judge,

Before: Chief REINHARDT, HALL, POOLE, CANBY, WIGGINS, O'SCANNLAIN, NOONAN, KLEINFELD, TROTT, LEAVY, Judges. Circuit O’SCANNLAIN, Judge: Circuit Washington The Governor of Washington Corrections officials (“WCCW”)appeal from for Women Center enjoining district court’s order them implementing policy requires random, guards to conduct non-emer suspicionless body1 clothed gency, prisoners. female district searches on policy violates the court found such First, Fourth, Eighth prisoners’ female our rights. vacate earlier Amendment We decision, panel three-judge Jordan Gard ner, granted, reh’g 953 F.2d en banc (9th Cir.1992),which 968 F.2d 984 reversed banc, Sitting en the district court. we now Eighth Amend- affirm district court "kneading.” euphemistically We the lead 1. officials refer will follow The WCCW "pat-down” searches. Howev- these searches er, to refer district court and decline the evidence as discussed "pat-down” searches as favor of the infra "pat- showed that these searches involved body” description “cross-gender clothed neutral ting" rather motions are more accurate- searches. ly "rubbing,” "squeezing," and described as in- instituted the which ef- not reach the Vail became grounds ment and do July fective on constitutional claims. mates’ other body

During the clothed search, guard the male stands next to the thoroughly inmate and female runs *3 which, all-female The WCCWis an body starting hands over her clothed approximately housed in December of working neck and down to her feet. her clas- felons. The inmates are 270 convicted material, According prison training a to the minimum, medium, maxi- at the sified guard pushing is to a flat hand and “[u]se opening its in mum levels. Since the crotch area.” motion across [inmate’s] guards and female both male WCCW,Pat-Down Searches Female In- mid-1989, Before staffed the institution. (n.d.). guard “[p]ush The must in- mates routine, suspicionless searches of inmates upward searching ward and when checkpoints performed only at fixed were upper thighs crotch inmate.” per- by guards. guards Male were female leg Id. All seams in the and the crotch only emergency mitted to search inmates “squeez[ed] are to be area knead[ed].” situations. hand, guard Using Id. the back of the sweep- also is to search the breast area a In of the correctional late members motion, will be ing so that breasts same- grievance against filed a staff Superintendent esti- “flattened.” Id. Vail gender policy search the institution. forty-five typical mated that a search lasts unhappy were that their The female film, training seconds to one minute. A breaks, still meal taken while were court, impression by gave viewed officially duty, occasionally inter- were thorough would last several that a search fixed rupted searches at the to conduct minimum, response minutes. At a each checkpoints. Washington Department The expected per- and movement officer was (“DOC”) denied the first lev- of Corrections per during form ten random searches shift grievance. el daytime the two shifts. as January Eldon Vail took over searched male Several inmates were Superintendent. Vail be- new WCCW (and imple- only) day of guards on the first conducting prison’s policy lieved that One, long history a mentation. who had suspicionless only at fixed check- men, unwillingly submit- sexual abuse controlling points ineffective in body search cross-gender clothed ted to a through the facili- movement of contraband she had to suffered severe distress: policy of ran- ty, and decided to institute she fingers pried loose from bars have her concerned, dom searches. He was howev- search, and she grabbed during the had er, that to order an increase the number returning to her cell block.2 vomited after retaining performed, while of searches filed this civil day, the inmates Later guards could policy female per- 1983 and rights action under U.S.C. § them, griev- additional form would lead to injunction, which preliminary obtained by the fe- ances and an eventual lawsuit permanent transformed into was later 26, 1989, guards. February On after cross-gender clothed Random injunction. DOC, the Director of the consultation with performed at body not been searches have Superintendent change Vail decided to day, July since that the WCCW order rou- policy at the institution and to perma- its order The district court issued cross-gender body clothed searches of tine following a nently enjoining the searches Despite warnings from WCCW inmates. includes over seven-day trial. The record the cross- psychologists on his staff that transcripts, testimony pages of trial body searches could cause gender clothed documents, inmates, and various about 300 court distress some severe emotional $10,000 attorneys’ damages plus fees. suit for 2. This inmate later settled a guard against for $1000 officials of whether directly analysis to the videotapes. Turner including Before exhibits decision, valid, reasonably Bryan policy heard reaching Judge the search interests, testimony, eight legitimate days penological six reviewed live related depositions, and re- videotaped examining written how the inmates'’ without fifty-six rights ceived exhibits. infringed. Fourth Amendment rights exist—whether Whether such II possess privacy interests that the inmates inmates first contend that search as infringed could be the Fourth Amendment.3 violates pect of otherwise constitutional searches— guarantees Amendment Fourth question, novel and one is a difficult and right people to be secure lightly. that cannot be dismissed But we *4 searches, protections and its unreasonable assume from the fact the cannot extinguished upon are incarceration. not anguish immense searches cause Sumner, 328, 860 F.2d 332 v. Michenfelder protected Amend therefore violate Fourth (9th Cir.1988). Judge Reinhardt’s concur it, prior from our case ment interests. Far the ring opinion ably articulates Fourth suggests prisoners’ legitimate ex law analysis developed by v. Amendment Bell persons pectations bodily privacy of from 520, 558-60, Wolfish, 441 99 S.Ct. U.S. opposite extremely are limited. of the sex 1884-85, 1861, L.Ed.2d 447 and (1979), 60 491, Rushen, 779 See v. F.2d Grummett 78, 87-91, Safley, v. 482 107 Turner U.S. (9th Cir.1985)(pat-down of 495-96 searches 2254, 2260-62, (1987). 64 S.Ct. 96 L.Ed.2d groin by male inmates that included area decide, however, the We do not whether not guards do violate Fourth female the Amend search violates Fourth Amendment); Michenfelder, 860 F.2d ment, Eighth because we conclude that (occasional strip searches of 334 visual prohibition against Amendment the unnec by inmates female do not vio pain essary and wanton infliction of forbids Amendment). frequency Fourth The late these searches under circumstances of scope of and the searches Grummett We the Fourth Amend case. address significantly were less and Michenfelder clarify ment issue our reasons for here, than the searches at issue invasive deciding not the case on that basis. controlling. and hence those cases are not agree plain- We that the conduct at issue however, importantly, prisoners Most ly implicates protec- is a “search” that upon rested their claims those cases tions Fourth Amendment. Conse- privacy. The gravamen invasions of of Judge quently, Reinhardt’s contention charge cross-gen here is that the inmates’ we should decide case on basis body great pain der inflict clothed searches Amendment, the Fourth because search suffering. unnecessary and wan and reasonable under Fourth Amendment pain upon prisoners ton infliction of consti “cannot, definition,” by Eighth violate punishment cruel unusual tutes and forbid Amendment, Its appeal. has surface falla- by Eighth Whitley den Amendment. v. cy pinpoint precisely in the lies failure 1078, Albers, 475 106 S.Ct. legitimate Fourth which Amendment inter- (1986) (quotations L.Ed.2d by Judge est is violated these searches. omitted). by simply pre- Reinhardt avoids issue Although may suming possess rights pro- the inmates that are the inmates here by proceeds privacy He invaded these searches. tected interests in freedom from 386, 394-95, Connor, cross-gen ing 3. The inmates also contend that the Graham v. 1870-71, body der the First clothed violate 104 L.Ed.2d 443 Amendment, (1989)), Eighth some in that of them have reli the Fourth and Amendments gious objections by directly regulate to intimate contact men not more the conduct at issue — Although searching, inflicting pain suffering — their husbands. the First Amendment `explicit larger is prot part the "more textual source constitutional and affect much inmate " religion, population. of free exercise Since we affirm the district court ection’ — U.S. —, —, Amendment, County, Eighth see Soldal Cook on the basis we do 538, 548, (1992) (quot reach the First Amendment claims. searches, searches, properly body such even conducted.” Id. cross-gender clothed (¶ 8). recog- finding yet judicially by have not This was buttressed testi interests been hand, mony the Eighth regarding per On the the inmate nized. other witnesses’ right persons histories, Amendment of incarcerated sonal which court found (¶ 7). be free the unwarranted infliction credible. Id. pain is As both clearly established. case, including in this record we applicable, affirm amendments depositions of several inmates and the live upon district court the basis of the one, testimony shocking describes the Amendment, do not reach the Eighth verbal, physical, and, particu- histories of Amendment claims. Fourth lar, by many sexual endured abuse prior inmates to their incarceration at III S.H.,4 example, gave WCCW. live For who “ incarceration, only the “unneces- 'After testimony, rapes by strang- trial described pain” sary wanton infliction of ... (twice) boyfriends. ers husbands punishment cruel and unusual constitutes had She described how she been beaten ” Eighth forbidden Amendment.' life. deprived various men in her Two her Albers, U.S. at Whitley v. food; adequate pushed one her out of (quoting Ingraham Wright, at 1084 *5 moving story unique. car. S.H.’s is not 1412, 51 Eighty-five percent report inmates (1977), quoting in turn stan- L.Ed.2d history of abuse to counsel- serious WCCW originally Gregg in dard described Geor- ors, molestations, including rapes, beat- 153, 173, 2909, 2925, gia, ings, slavery. and (1976) opinion (joint inmate, K.D., depo- by Another testified Stewart, Powell, Stevens, JJ.) (internal and her, sition that her second husband beat omitted)). citation Under traditional strangled her, ran and over her with analysis, we Eighth Amendment first con- T.D., inmate, grew up, truck. As another sider whether there is an “infliction strapped handcuffed frequently she was or so, and, if that pain,” whether infliction is half-brother, by to a bed her who beat “unnecessary and wanton.” her; raped mother her that T.D.’s told wrong nothing there her half- was with A T.D.’s once di- brother’s conduct. mother The made a district court number of stepfather, rected her to masturbate her pain. findings of fact on issue of Not pushed in T.D. into and her later teens was many ing that of the inmates WCCW mother, by sexual her who would liaisons physical have histories sexual or abuse inmate’s then blackmail the men. Another men, by physi found that district court by one wife- hand was of her two broken emotional, cal, psychological and differ Another, S.E., beating was six- husbands. “may ences between men and women well her; af- impregnated teen when uncle her women, especially physically cause and attempts to ter the of the uncle’s failure women, sexually to react abused different handle, using a induce an abortion broom ly type searches of than would male this bleach, screwdriver, Lysol, the uncle subjected to similar searches inmates marry During that paid a her. man to Findings Fact & Conclusions women.” marriage, raped by her frequently S.E. Gardner, of Law at Jordan v. No. C89 friends, ending one time husband and his (W.D.Wash. 1990) 339TB Feb. up in her and hospital after beat (hereinafter Conclusions”) (If6). “Findings & “ripped behind.” [her] high court is a district found “[t]here harm, testimony from great including presented The inmates probability of severe pain expert psychological emotional and ten witnesses psychological injury and impact to these suffering, inmates from these forced submission some protect privacy keeping revealing of the in- of not initials here to 4. the tradition assault, sexual use mates. names victims of 1985), is- court the constitu- guards, related considered by male searches pat performed fe- tionality of searches experts WCCW staff included sues. prisoners. We con- guards on male members, workers, an male psychologists, social had not shown the inmates cluded former Director of anthropologist, and the pain to make out a evidence of sufficient States at var- for four different Corrections Eighth claim. Id. cognizable Amendment testimony described the times. The ious indi- Nothing in at 493 n. Grummett fragility and disorders psychological particular men vulnera- cates that the had psychologist A in women. found abused cross-gender that would cause the bilities psychotherapy in for women specializing body symp- to exacerbate clothed unwilling submission testified that In- pre-existing mental conditions. toms of genitals bodily contact with the breasts case, deed, nothing in contrast likely inmate “rev- by men would leave the prison- indicates that the male Grummett symp- ictimiz[ed],” resulting in a number of likely experienced had or would be ers Al- post-traumatic disorder. toms of stress as experience any psychological trauma expert testimony though there was some result of the searches. magni- uncertainty to the expressed inmates, by the tude of the harm suffered pos- supports The record this case experts, many whom were the inmates’ experience that women unwanted in- tulate WCCW, unanimously employed by were differently touching by men timate suffer substan- the view some would touching subject comparable men tially. This conclusion was corroborated witnesses, including Several ex- women. testimony and the by the inmates’ own anthropology, perts psychology dis- results of disastrous gender so- cussed how differences body search of clothed S.H. cialization lead to differences would *6 regard experiences of men and women appeal we look for clear error. On Grummett, “ sexuality.5 simply is not are Only we ‘left with the definite and controlling in this case. firm conviction that a mistake has been ” committed,’ short, McConney, In we are satisfied that the cross- United States v. 1195, banc) (9th Cir.) (en policy consti- gender body F.2d 1201 clothed search 728 Swint, (quoting pain.” v. 456 tuted “infliction Pullman-Standard 1781, 273, 14, 284-85 n. U.S. B 1787-88, (1982)), 72 de L.Ed.2d 66 cert. 101,

nied, 824, 469 U.S. 105 83 S.Ct. pain is Whether the infliction of “unnec- (1984), facts may L.Ed.2d 46 we overturn essary inquiry and wanton” involves by prison the district court. The found justification for the. new cross- into challenge findings are officials’ that such policy and gender body clothed search its clearly erroneous must fail. intent. are satisfied the constitutional We 1 finding “pain” for a has been standard reflects, in case. our other The record and the met In most of district cases, found; pre- security search court has not been court that WCCW’s not upon cross-génder pointing dependent body sented with evidence to more than clothed prison argue momentary by caused officials do not discomfort searches. impaired procedures. example, security search For that WCCW’s has been Grum- Rushen, (9th slightest during pendency mett v. F.2d 491 Cir. 779 behavior____ Men, rarely territory upholding We do not chart who are vic- new sexual finding assault, the district court’s that men and may women tims of sexual view sexual con- touching by may experience unwanted intimate appreciation duct in a vacuum without a full opposite differently. gender members underlying setting of the social or the threat context, Title VII we concluded: may perceive. of violence that a woman disproportionately women vic- 872, (9th [BJecause Brady, Ellison v. 924 F.2d 879 Cir. assault, rape tims of women have sexual 1991) (footnote omitted). stronger incentive to be concerned with

1527 Findings injunctions, preliminary court’s and this case.” & 6 district Conclusions at (¶ 19). It appears Eighth now been in effect that none permanent, which have years. Although Superintendent decided Supreme for three Amendment cases Court, circuit, any predecessor concerns Vail’s voiced about other court appeals upheld pain-inflicting internal the need for has mea- random searches, prison these sure simply imple- concerns have been met because officials legitimate random and mented to “address” the establishment of routine Superinten- governmental guards. interest. The searches female district court’s proposed dent Vail himself confirmed as conclusion that much random or “[t]he routine cross-gender body trial. clothed constitute pain the infliction of without body do clothed cross-gender Nor penological justification, and cruel equal employment oppor searches ensure punishment unusual in violation of the guards. for tunities conflict be Eighth Amendment,” Findings and Conclu- right sex not to tween of one be dis (¶ 28) (emphasis added), sions at 12 was opportunities job criminated entirely consistent with the evidence.6 of privacy the other maintain some level normally by attempting "has been resolved 2 through to accommodate interests both ad above, From the discussion it is evi job responsibil justments scheduling and dent that body clothed Fairman, guards." for the v. ities Smith "unnecessary." searches are The closer 52, (7th Cir.1982), denied, F.2d 55 cert. 678 question pain whether infliction of 907, 103 1879, 461 76 810 S.Ct. L.Ed.2d "Eighth "wanton." Amendment (1983); see also Gunther Iowa State claims on official based conduct that does 612 F.2d Reformatory, Men’s 1087 purport penalty formally to be the im Cir.), (8th denied, cert. 446 U.S. posed require inquiry a crime into [the (1980), S.Ct. over state mind. . officials’] ruled on other Kremer v. grounds, Chem — Seiter, U.S. —, —, . ." Wilson S.Ct. Corp., ical Constr. 2321, 2326, (1991). 115 L.Ed.2d "It is (1982). trial, At L.Ed.2d 262 obduracy charac and wantonness . . . that officials’ own witnesses testified prohibited by terize the conduct the Cruel refused, that not a had single bid been *7 and Unusual Punishments Clause." Whit denied, promotion guard replaced nor as a 319, ley, 475 at 106 at 1084. U.S. S.Ct. result of the routine cross-gender ban on body clothed searches. does not have a “[W]antonness Although the meaning district court found that fixed but must be determined with regard random was `due differences in kind of policy the search “addressed” for the security, it that the an Amend Eighth also noted conduct which evidence " — security objection Wilson, lodged.’ demonstrated “that the interests ment —, (quoting adequately have been ful- U.S. at 111 S.Ct. at 2326 [WCCW] 320, 1084). Whitley, filled the its 106 actions of administrative U.S. at S.Ct. at 475 officials, prior proposed policy determining to the what constitutes "wanton ness," change during period and mental which a state is deliber baseline — Wilson, injunction preliminary has been effect in ate indifference. U.S. at Supreme knowledge point" at 6. The Court has instructed us that amount I have con- judge jury freely [may] “neither cerning likely impact nor substitute on the inmates. Cf. judgment their that of Gardner, 321, (9th [sic] for officials who Tribble F.2d v. 860 327 n. 9 Whitley, a have made U.S. at choice.” considered 475 Cir.1988) ("In view of the evidence substantial 322, By concluding 106 S.Ct. at 1085. exaggerated ... defendants have their re- cross-gender body clothed un- searches are considerations, sponse security purported record, Judge Bryan justifiable on this has not expert judgment do not their in these defer to violated this is difficult to stricture. It describe denied, omitted), matters.”) (citations 490 cert. choice”; policy Super- the new as a "considered 2087, 1075, U.S. S.Ct. L.Ed.2d 650 109 104 intendent Vail at trial that he noted had formu- (1989). policy anywhere lated his with near “[n]ot 1528 Thus, cross-gender clothed specific occasion.

—-—, at 2326-27. 111 S.Ct. policy developed over body that the conditions search alleges inmate where an unnecessary time, opportunity suffer for ample inflict reflection. of confinement her, establish wanton upon or ing Moreover, him of excessive unlike incidents show inmate must force, body ness the search cross-gender clothed indiffer deliberately were officials pain on a one-time policy does inflict suffering. In con inmate’s Id. ent to the basis; instead, condi- as with substandard trast, force prison officials use when confinement, policy will contin- tions of order, showing is re greater a maintain upon the indefi- pain to inflict inmates ue situation, turns wantonness — quired; in that 1, Wilson, at-n. nitely. U.S. Cf. " good applied in a `whether force was (“Undoubtedly depri- n. 2324 1 111 S.Ct. at discipline or restore faith maintain effort to are, upon as a prisoners inflicted all vations sadistically very for the maliciously matter, greater concern than de- policy " v. Hudson purpose causing harm.’ particular prison- upon inflicted privations — —, —, 112 McMillian, S.Ct. U.S. ers____”). When, here, formu- officials (1992) 995, (quoting 998, 156 117 L.Ed.2d there policy a in circumstances where late 320-21, at 475 U.S. Whitley, at particular offi- no on the are constraints 1084). are this distinction The reasons for decisionmaking process, see Redman cials’ prison- context of a plain. Whether Diego, 942 F.2d County San or an individual confron wide disturbance Cir.1991) banc), (9th (en de- 1442 cert. prisoner, cor tation between officer —nied, -, U.S. immediate often must act rections officers (1992), implementation L.Ed.2d 137 and the potentially ly emphatically to defuse upon in- policy pain will inflict See, e.g., explosive situation. Williams basis, look mates on a routine we need not (11th Burton, F.2d 1575-76 Cir. “maliciously showing for a of action taken — 1991), denied, U.S. —, 112 S.Ct. cert. Eighth sadistically” Amend- before (1992). L.Ed.2d In such protections implicated. ment situation, judg make difficult officers must whether, much, force ments and how mandates the conclusion record rarely has appropriate. Id. The officer met their of establish the inmates burden reflection; instead, time for the decision ing requisite indifference." "deliberate " haste, `in must be under use force made poli Superintendent Vail indicated that pressure, frequently without the luxu cy required purposes was not " — Hudson, ry of a second chance.’ adopted he and that at —, (quoting Whitley, 112 S.Ct. at 998 great body search without clothed 1084). Be at impact knowledge deal of about critique cause decisions in hind of such inmates, note upon supra see sight chill effective action could actually long policy was 4. Yet before the *8 officials, Supreme that Court has held Superintendent was implemented, Vail higher appropriate.7 standard is by urged members of his own staff not body cross-gender institute clothed that in situation

We conclude psychological to the trauma by searches due deliber “wantonness” determined many likely would suffer. judg which inmates ate indifference standard. Unlike Further, effect, context, a court once the took ment in the force our excessive prevent necessary order critique hindsight task is the exer was not although inmates judgment particular cise of of a officer on a one of first — Hudson, at —, ("In "maliciously holding In that sadistical U.S. 112 at 999 ly" applies allegations exces determining to all standard whether the use of force was wan force, Supreme require sive Court does not may unnecessary, proper ton and also be . . . finding emergen aas threshold matter a that an application need force . . . to evaluate the for situation, cy disruption, such a riot or lesser `reasonably perceived by the the threat [and] However, emergency existed. may the absence ") responsible (quoting Whitley, 475 officials.’ probative be of whether the force was 321, 1085). U.S. at 106 S.Ct. at maliciously sadistically. indeed inflicted or See professionally the searches suffered a severe reaction. were conduct- to be searched now, testimony Psychologists on the despite ample ed. WCCW staff Even guards’ professional policy, prison warned Vail harmful effects of upon reversing the dis demeanor would not ameliorate the risk of officials are intent harm, short, psychological find and the severe reaction injunction. trict court during inmate a search supports but one conclu of one occurred that the record prison performed acted with that was accordance with the sion: the officials deliber policy. the harm that the indifference as to ate cross-gender body searches were clothed Implicit Judge Trott’s dissent is the likely Berry to cause. v. Mus City See belief that the deliberate indifference stan- (10th Cir.1990) 900 F.2d kogee, applied adoption dard should not be to the (knowledge of risk of harm and failure prison policies, because officials who prevent act to the harm constitute deliber generally policies institute do so after care- indifference); v. ate see also Williams fully examining consequences. In the (4th Cir.1991) 820, 826 Griffin, 952 F.2d view, dissent's officials cannot said such (same); Moran, 949 F.2d DesRosiers to have manifested “deliberate indiffer- (deliberate (1st Cir.1991) es indifference involved, rights ence” to the constitutional knowledge of risk of showing tablished and, thus, prison policies rarely if should impending easily preventable, harm that Eighth found to ever be violate Amend- it); Cortes-Qui prevent failure to analysis ment. While at first blush such F.2d Jimenez-Nettleship, nones may appeal, have some a closer examina- (1st Cir.), denied, 488 cert. infirmity. tion that it has a fatal reveals (1988) (actual analysis The dissent’s fails to take into knowledge plus constructive of risks scope term account the full “deliber-

failure to act constitutes deliberate indif enough say It ate indifference.” is not Redman, ference); 942 F.2d at 1443 cf. enacting policy prison a author- before may act (prison officials not with reckless carefully. ities considered an issue That is particular vulnerability indifference a part obligation. their Prison one know).8 which the officials know or should required are also to afford suf- authorities finding Superin- The district court’s weight rights ficient to the constitutional a does tendent Vail was credible witness The failure to treat consti- of individuals. analysis. not undermine the above As respect appropriate provisions tutional noted, he district court Vail believed that indifference to the constitutes deliberate in a He believed “lose-lose situation.” If a rights policy seeks to limit. if he did not accede to the union’s ignore grave decides to suf- administrator demands and institute unimportant fering of irrelevant or because body policy, clothed search he would be concerns, that administrator demonstrates employees’ union. The sued wish being a indifference to the harm deliberate union, employees’ from an avoid lawsuit principle at and to the constitutional done however, provide justification does superintendent example, For if the stake. magni- inflicting pain of a constitutional disruptive that a of a becomes aware inmates, upon tude even the belief that prisoner threatened with death has been grievance labor suit would be filed was nothing and he does be- prisoners other sincere. cause he decides that the morale *9 disruptive

Moreover, prison guards improve if the attempts Vail’s to ensure that will dies, guards’ morale profes- prisoner in a or that the searches were conducted if he with their whol- negate manner do not the conclusion will suffer interferes sional handling the ly inadequate approach to sit- deliberately he indifferent to the uation, have acted superintendent will pain inmates’ when it became obvious that prison- indifference to the pain inflicted no matter how with deliberate would be duty prison Although imposes a officials at least involves the Fourteenth ment Redman Redman, protections, Eighth rigorous. F.2d at 1442-43. Amend- 942 Amendment’s 1530 under “reasonable- to constitutional should be measured

er’s his welfare v. 482 thought Safley, ness” standard of Turner how rights. No matter much 2254, 78, 64 107 96 L.Ed.2d gives to U.S. S.Ct. superintendent consideration the (1987), rather the traditional than place higher problem, his failure to reject Eighth approach. Amendment We life than on the staff’s prisoner’s value on a argument. indiffer- morale will constitute “deliberate ence.” Although Supreme stated Court has broadly that "the standard of review we

Here, urges, in ef Superintendent Vail to adopted applies all circum Turner fect, proper inflict serious it is to prison the needs of admin stances which psychological pain on the inmates because implicate rights," constitutional istration interrupt may necessary to otherwise it 210, 224, 494 Washington Harper, v. guards, periods periods the lunch of female 1028, 1038, 110 108 L.Ed.2d 178 He also during duty. which are on (1990), applied only Turner has been where relating to points to minor concerns other right is one is en the constitutional which working conditions morale by all joyed persons, but exercise and, staff, prison belatedly, to routine may necessarily be limited due to which Superinten concerns. automatic unique imprisonment. circumstances of policy his dent Vail considered harm (due See, e.g., process id. under Fourteenth policy ne would cause and instituted the Amendment); Turner, 91-99, 482 U.S. at exag He did so because of an vertheless. (free 2262-66 association under gerated regard pragmatic interests of for Amendment); Michenfelder, 860 F.2d First significance proper and a lack of lesser (applying privacy at 332-36 Turner infringement of a concern for the serious claims, not Fourth Amendment He counter-vailing constitutional interest. claim); Eighth v. Amendment Griffin staff was advised his of the harm F.Supp. 1010-19 Coughlin, 743 cause, policy yet would he elevated (N.D.N.Y.1990) (applying equal Turner important less concern the consti far above Amend protection Eighth claim but not injury. simply enough tutional It is claim); Vigliotto Terry, ment see also does, say, gave as the dissent that he (9th Cir.1989) (examin F.2d 1203 great thought. issue a deal of The "suffi ing Eighth claim ref Amendment without ciently necessary to culpable state of mind" Turner).9 Eighth erence Amendment find deliberate mean indifference has more incarceration; rights do not conflict — Seiter, ing than that. See Wilson v. rather, they hardships may limit the which U.S. —, "pun upon be inflicted the incarcerated as (1991). Procunier, Spain ishment." See circumstances, Under these must con- (9th Cir.1979) (Kennedy, F.2d 193-94 prison clude that the officials’ conduct in J.) ("Whatever rights may at the one lose this matter has been The dis- “wanton.” gates, protections full . . . the properly trict found court that the eighth certainly amendment most remain “unnecessary and wanton.” force.") (citations omitted). Perhaps for reason, Supreme Court never has C applied Eighth Turner to an Amendment today. case. We decline to do so propose use of officials altogether establishing another test D Eighth They violation of the Amendment. inmates,

argue Eighth Amendment chal have established a violation claims, lenge, Eighth right like all of the other of their Amendment free inmates' to be Sumner, Michenfelder, (suggesting see 9. But Walker v. F.2d 385- F.2d at 331 n. 1 (9th Cir.1990) (applying Eighth one Turner factor to applicability Turner’s Amendment Fourth, assertion that forced blood test violated analysis, using although Eighth later traditional *10 Amendments, Eighth, and Fourteenth without approach). Amendment arguments analyzing separately); constitutional punishments.” injunction and unusual we conclude that the appro- from “cruel was adequately supports The more than priately prohibit record tailored to the identified finding psychological court’s the district constitutional violation. The district court harm, the harm is sufficient to meet implementation has not barred the of ran- Furthermore, constitutional minima. suspicionless searches; dom or routine pain “unnecessary the infliction of fact, during these have continued the three applicable legal and wanton” under the years cross-gender since the body clothed uphold standards. We the district court’s policy enjoined. Only search non- clothed conclusion that emergency, suspicionless body clothed body prison search at the women’s are forbidden. punishment constituted and unusual cruel Eighth in violation of the Amendment. V gainsaid It cannot be IV incarceration " `brings necessary about the withdrawal Having Eighth identified an many privileges or limitation of violation, Amendment we must next consid " rights,’ Procunier, 817, Pell v. 417 U.S. remedy. propriety er the of the district court’s 822, 2800, 2804, 94 S.Ct. 41 L.Ed.2d 495 power judge The district ha[s] " (1974)(quoting Johnston, Price v. 334 U.S. only to correct the constitutional defects 266, 285, 1049, 1060, 68 S.Ct. 92 L.Ed. 1356 Hoptowit Ray, that he v. [or she] [finds]." (1948)), or that some conditions that are 1237, (9th Cir.1982); 682 F.2d see also "part "restrictive and even harsh" can be 1080, McCarthy, 801 F.2d Toussaint v. penalty pay that criminal offenders (9th Cir.1986)("An injunction 1107-08 must for their society." offenses narrowly tailored to cure the constitu be Chapman, 347, 101 v. Rhodes 452 U.S. tional violation and must not intrude on the 2392, 2399, (1981). 69 L.Ed.2d In unnecessarily."), functions of state officials presented pros case we are with the denied, cert. pect psychological of serious suffering, the (1987). 95 L.Ed.2d 871 demonstrably infliction of which is "unnec designed injunction The district court its and, essary" in the constitutional sense of narrowly. prison enjoined The officials are word, "wanton." The "standards of conducting “routine or random decency in society," modern Baumann body clothed searches of female inmates Corrections, Dep’t Arizona 754 F.2d touching which include of and around (9th Cir.1985), permit do not genital breasts and male correc- areas[ ] imposition of such needless harm. Findings tions officers” at WCCW. & Con- The inmates have established violation (¶ 1) (issuing injunc- clusions at 14 order of Eighth rights, justify- of their Amendment tion). specifically The court noted that its ing the district court’s issuance of in- gender decision “does not extend to cross junction. Eighth Because the conditions, Amendment emergency searches under cross women, grounds support in- gender sufficient searches of men junction, we do not reach gender cross searches at female the inmates’ oth- institu- (II33). er constitutional claims.10 tions other than Id. at 13 [WCCW].” challenged officials have not AFFIRMED and REMANDED for recal- scope injunction. event, any attorneys’ culation of fees. argue plaintiffs’ important 10. officials that the district counsel secured results improperly multiplier society Supreme court used of 2.0 of the which benefit as a whole. The — awarding attorneys’ City Burlington Dague, lodestar amount fees. Court in —, (1992), The district court enhanced the lodestar amount (1) plaintiffs recently contingency because would have faced sub limited the use of enhance difficulty obtaining stantial counsel without ments to the lodestar amount. We thus con loss; (2) light Dague an enhancement risk of clude in that the enhancement necessary proper enhancement was to reflect the differ here was not and the case must re contingent light ence in the market treatment fee manded for recalculation of fees in the one; (3) Dague. cases and cases similar to this *11 REINHARDT, Judge, challenged the here violates whom that conduct Circuit with the concurring: the fourth amendment as well as CANBY, Judge, joins, Circuit eighth, properly is and that case more superintendent is the Eldon Vail on the basis of the former constitu- decided Center for Wom- Washington Corrections protection. question The of which tional prison employs both male en. The rely provision upon when constitutional has Vail guards.1 Superintendent female is, however, a more than one an act violates (as male as the guards the well authorized Here, majority sup- prudential matter. females) to search the clothed bodies eighth proposition that ports routinely, us- randomly and female inmates violated, num- has been but a amendment “rub,” ing “grab-type motion” to its do to reach the ber of members not wish “knead[j” the “strokfe], squeez[e],” and I question. While fourth amendment exteriors, including their covered women’s prefer rely on the fourth amend- would breasts, buttocks, thighs, and crotch- inner strongly ment that the court and believe “push guards are told inward es. The so, agree fully Judge I with should do upward” searching the when women’s reasoning and O’Scannlain’s conclusion thighs and and to check upper crotches eighth that these searches violate the crease in their buttocks with a downward join opin- I Accordingly, amendment. edge There motion of the hand. ion, exception with of Part II.2 In the dispute necessary; that the searches are no follows, analyze that I this case discussion whether, question under the Consti- my out under fourth amendment. set tution, perform them. guards may male relying reasons for on that amendment guards regulations prohibit Prison male V, Part infra. body conducting strip from searches and However, Superintendent cavity searches. II. prison’s security Vail contends will Washington Center Corrections guards prohib- if compromised be male are Women, women, Gig prison for a state body conducting ited the clothed Harbor, Pri Washington, opened 1971. also searches as well. He contends July, guards or to male rights female of both the male and actually not did conduct searches guards equal employment opportunities regula While under the inmates. female full of their collective benefits guards permitted tions were to con male agreement adversely af- bargaining will be an in “suspicion duct searches”—to search guards permitted if male are fected body mate’s if had reason to clothed perform their searches. share those suspect carrying that the woman was con urge inmates that The female emergency— traband or there were clothed-body and vio- searches invidious were, always suspicion practice, searches first, fourth, and rights late their under the guards. conducted female They eighth amendments. contend permitted regulations “suspicionless also body may performed clothed searches searches,” regulations expressly guards. judge only by female The district stated those were to be con agreed each of the constitu- inmates’ only. July, female ducted Until arguments. tional type only suspicionless one search authorized, searches.” Rou “routine

I. (by female performed tine searches were guards) checkpoints, majority decides this case on at fixed such as eighth visiting July, kitchen or the room. basis of the amendment. believe suggests, 1. As the institution's name there are no that amendment rather than the fourth amend- prison, holding. at the females. proper inmates ment as the basis for our Part opinion, dealing II of his with the decision to Judge majority opinion is O'Scannlain’s thus a rely eighth on the amendment rather than the opinion insofar as relates to the existence of fourth, plurality only. represents a view eighth an respect violation as with amendment as well than to all matters other the choice *12 Vail, superintendent of the when he made his to Eldon the new decision allow cross- guards begin searches, conduct prison, authorized gender he was in a “lose/lose” suspicionless search ing type a second If he griev- situation. turned down the poli Under the called “random searches.” ance, sue; guards the would if he autho- searches, cy establishing random no cause searches, guards rized male to conduct the required the search and no fixed for the inmates would sue.5 policy provided for. The calls locations cross-gen- Prison administrators call the guards a minimum of ten to search body der “pat clothed searches searches.” during day per inmates shift at random the adopt pris- The district court refused the shifts; swing may conduct be term, my wisely According on’s view. general prison anywhere ed in the area or materials, prison’s training proper any cells them part of the women’s way to conduct such a is to search selves; searches, unlike routine there is no advance notice that a random search will be Squeeze knead shoul- conducted. ders____Knead ... the inside of the Superintendent pol- Vail issued the When pull[ fly waistband of trousers [and] ] searches, icy providing for random he au- behind, away body. from the From ... guards as female thorized as well crotch[,] both hands across the [use] them, also, conduct and he for the first [p]ushing crotch[,] the hands across the time, guards conduct authorized male [squeezing kneading all superinten- routine searches. After the seams____ The breast area shall be actions, 5, July prison policy dent’s as of motion, sweeping using searched in a guards to authorized all conduct both “sus- hand____ only the back of the picionless” “suspicion” searches. by of a female will flattened breasts be However, out, majority points as the this method. Use flat hand and a which, day, following lasted one pushing motion across the crotch area. by agreement by injunction, first and then flat, pushing Maintain a inward motion. guards authority' of male to conduct edge of the hand in a downward suspicionless suspended. searches was Al- can used to check the crease in motion be though injunction sought no was with re- upward Push the buttocks. inward searches, spect suspicion prior prac- searching upper the crotch and when having by tice of those searches conducted thighs inmate. guards only female continued in effect.3 Washington Center for Wom- Corrections Superintendent prompted Vail was to is- en, Pat-Down Searches Female In- policy by grievance sue his new from the some modifications to the mates. While guards’ challenged prison’s union that occurred, descrip- procedure may have assignment (suspicionless) routine inmates, prison personnel and tions guards searches to female alone.4 In the material, videotape training and a past, prison administrators had denied simi- viewed this court reveal grievances lar because believed that nothing searches involve so delicate or so single-sex searches were “consistent Rather, “patting.” tentative prudent manage- ... correctional deeply Superintendent ment.” testified that searches are intimate and invasive. Vail filed, challenged grievance Superin- suspicion 3.While searches are not 4. At the time action, yet suspect tendent Vail had not authorized the second that the outcome be would category suspicionless though controlling searches—random the same—even issue different; searches. i.e., might slightly be whether guards develop would be feasible for male who regarding suspicion particular sufficient in- attempt In an to minimize in- unsuccessful mates either to summon female to con- complaints, Superintendent mates’ Vail ordered searches, spot duct the searches on the or to take the that all and routine whether random post guard guards, inmates at which a female performed by male or female may presence stationed so that the search be conducted in the of a staff member conducted there. who was to act as observer. grievances, government for a redress guards conducted the intrusive sus- Male Avery, July 1989. After Johnson picionless searches (1969); they may not guard, by a male an inmate was searched courts, to the pried be denied access Bounds fingers had to be bars her Smith, grabbed; *13 to her cell- 430 U.S. had she returned she (1977); they entitled to due vomited, As L.Ed.2d 72 block, and broke down. soon McDonnell, law, supra; v. began, process filed a the searches the inmates as Wolff they may subjected to cruel and The not be complaint in district court. pro se punishment, Hudson v. McMilli informally agreed suspend them unusual — —, 995, 117 an, 112 later, U.S. S.Ct. day. days Two when that same (1992). the L.Ed.2d 156 superintendent decided to reinstitute temporary searches, the inmates obtained a here, prison particular Of more concern They restraining subsequently ob- order. dignity right privacy a inmates have preliminary injunction and were tained a persons.7 Although Supreme in their trial, six-day certified as a class. After prisoners right Court has held that have no permanent in- court entered a district Palmer, cells, privacy in their Hudson v. barring cross-gender suspicionless junction (plurality supra opinion), the limitation on appeal- The body clothed searches.6 state privacy rights has not been extended ed. id., prisoners’ searches of bodies. See 468 31, n. 104 at n. 31

U.S. at 555 S.Ct. 3215 III. (Stevens, J., concurring part and dissent Palmer, Following ing part). Hudson v. I believe that invasive ours, courts, including consistently searches violate the fourth amendment applies to held that the fourth amendment rights prisoners. of female Persons who See, prisoners themselves. searches of do not for have been convicted crimes 912, e.g., Dahlberg, v. 963 F.2d Cornwell rights feit of their under the Constitu all Cir.1992) (6th (male strip- inmate 916-17 they pass through gates tion when guards a val searched before female raises separates prison No "iron prison. curtain" claim); privacy Mi id fourth amendment protections, inmates from constitutional Sumner, (9th 860 F.2d 328 v. chenfelder Cir.1988) (visual McDonnell, 539, 555, 94 418 U.S. v.Wolff cavity body searches of 2974, 2963, (1974); 41 L.Ed.2d 935 S.Ct. amendment); inmates do not violate fourth rather, rights not inmates retain "those Fair, (1st Cir.1986) v. F.2d 164 Bonitz 804 imprison fundamentally inconsistent with (fourth body right to free amendment be incompatible objec ment itself or with the qualified cavity claim of search overcomes v. tives of incarceration." Hudson Palm dispute immunity). parties The do not that 517, 523, 3194, 3198, er, U.S. 104 S.Ct. 468 implicated in the fourth amendment is (1984) (plurality opinion). 82 L.Ed.2d 393 case. may subjected to invidious Prisoners not be discrimination, 78, Safley, 482 Washington, racial v. In Turner v. U.S. 107 Lee 994, (1987), 333, 2254, L.Ed.2d 64 the Su 390 88 S.Ct. 19 L.Ed.2d 1212 S.Ct. 96 U.S. (1968) curiam); may preme general stan (per petition Court established now, amendment, Thus, States, 6. as not conduct the fourth v. United do Katz 347, 507, any body su- U.S. 88 S.Ct. 19 L.Ed.2d 576 searches of female inmates. See 389 1532, 1533, 2; (1967), protects page persons pra page 1. amendment also ¶ that ¶ bodily against infringements integrity, Win 761, Lee, 753, 1611, pin Judge that v. 470 O’Scannlain states I fail "to ston U.S. 1617, (1985), digni legitimate personal point precisely which Fourth Amend 84 L.Ed.2d 662 ty, California, interest is violated these searches." Schmerber 86 ment Majority (1966). sorely He is mistaken. The S.Ct. at 1524. "digni precise together violat Court refers to these interests fourth amendment interest is Lee, right people tary ed be secure in interests." 470 U.S. at Winston "[t]he persons privacy dignitary 1617. It is the their . . . unreasonable Moreover, inmates are violated searches." U.S. Const. amend. IV. interests of female underlying privacy primary is the interest here. while evaluating reasonable; stand prisoners’ constitution it cannot if it constitutes dard claims, including fourth amendment an overreaction. al principles orig Turner distills claims.8 factors must applied Turner be Wolfish, in Bell v. inally established light type of constitutional violation 520, 551, 1861, 1880, par- involved and the circumstances of the (1979), and a series of related L.Ed.2d weigh ticular heavily case. Some more Turner summarizes standard cases.9 circumstances; heavily some others more emerged from cases as these follows: guidance in others.10 derive as to how We impinges prison regulation on in "when applied factors are to Turner rights, regulation mates’ constitutional “unreasonable search” cases from Bell v. `reasonably legiti if it is related’ to is valid Wolfish, supra. Bell tells us “[t]he penological interests mate [and not] *14 of test reasonableness the Fourth under response’ those concerns." `exaggerated to capable of precise Amendment is not defini- Turner, 87, at 482 U.S. at 107 S.Ct. 2260- application.” tion or mechanical Bell v. (1987). also 61, L.Ed.2d 64 Turner iden 96 559, Wolfish, 441 at 99 1884. U.S. S.Ct. at four factors that should be consid tifies Instead, balancing mandates a test. It Bell determining whether stan ered when states, “In each case test of reason- [the first, there is met: whether is "a dard requires balancing a of the need ableness] `valid, rational connection’ between the particular search the inva- neutral, regulation legitimate prison and a personal rights sion that the search put justify to government interest forward (emphasis added). Thus, entails.” Id. af- second,

it"; there are alternative whether applying ter the four Turner factors exercising means of the asserted constitu evaluating circumstances, all the we must right open to tional remain the in prison’s ask whether the need to use male mates; third, whether and to what extent body to conduct searches—to right accommodation the asserted will such extent heed exists—out- staff, impact inmates, prison have an on weighs resulting injury the constitutional prison gen and the allocation resources from the invasiveness the intrusion. and, fourth, ready erally; a whether alter practice the challenged native to exists that Turner, evaluating In a claim a under fully prisoner’s will accommodate "appropriate court must accord deference penologi to valid rights at de minimis cost officials," prison O’Lone v. Estate of Id., 89-91, cal interests. 482 U.S. at 107 Shabazz, 342, 349, 2400, 482 U.S. 107 S.Ct. at 2262. S.Ct. 2404, (1987), "the 96 L.Ed.2d 282 because judiciary ill-equipped to deal with the is The four must be evaluated in factors problems prison difficult and delicate overarching light of the Court’s task: Abbott, management," 490 Thornburgh v. prison’s whether rea- determine a 401, 407-08, 1874, 1878, 104 U.S. 109 S.Ct. sonably prison related to administrators’ (1989). ap L.Ed.2d This 459 admonition exaggerated concerns or an re- valid plies strongly to over Turner, especially concerns those sponse to concerns. Under which, prison security, has stat response penological its Court prison’s a con- ed, important legitimate is the appropriate: cerns must be must be most of all — U.S. —, 2321, er, 8. Although prison policies 271 Turner discusses 111 S.Ct. 115 L.Ed.2d implicate (1991). inmates’ first fourteenth amend rights, ap standard has been ment Turner plied prisoners’ rights amendment fourth Bell, as the 9. addition to Court cites Patrissi, See, e.g., well. v. 967 F.2d 73 Covino Rutherford, v. U.S. source its rule Block 468 Cir.1992); (2d Dahlberg, supra; v. Mi Cornwell 576, 3227, (1984); 104 S.Ct. Sumner, supra. Supreme v. chenfelder Court has Union, 433 Jones v. North Carolina Prisoners’ applies held that Turner whenever 119, 2532, (1977); U.S. S.Ct. L.Ed.2d 629 97 53 prison implicate "the needs of administration 2800, Procunier, 817, Pell v. 417 U.S. S.Ct. 41 94 rights." Washington Harper, v. constitutional (1974). L.Ed.2d 495 210, 224, 1028, 1038, 494 U.S. 108 (1990). However, L.Ed.2d 178 the Court has applied eighth See 11. Turner note amendment cases. infra McMillian, supra; See Hudson v. Wilson v. Seit 1536 nothing escape a search. Palmer, can do 468 inmate Hudson v. goals.

correctional stays in her cell an inmate who 3199. While Even 525, 104 S.Ct. at at U.S. to sub- impeccably can be forced substituting their behaves must refrain courts body in administrators, guard’s a male search of her prison mit to judgment for that offensive, invasive, way. 322, 312, intimate Albers, 475 Whitley v. (1986), 1078, 1085, 89 L.Ed.2d S.Ct. to be under The third factor addressed abdication," not mean "does deference analysis impact is “the Turner (9th Sumner, 917 F.2d Walker the asserted constitu- accommodation Cir.1990). reasonableness "[Turner’s] right (guards on will have others tional toothless," Thornburgh v. is not standard inmates) prison.” Thornburgh Abbott, at 1882. at 490 U.S. Abbott, at 1884. 490 U.S. at of regulation practice "[W]hen right of an asserted accommodation “When guaran constitutional fends fundamental ‘ripple effect’ significant will have duty tee, discharge their will federal courts staff, courts inmates or on fellow Turner, rights." protect constitutional particularly to the deferential should (internal S.Ct. at 2259 482 U.S. at of corrections offi- informed discretion omitted). omitted; citation quotation Turner, 107 S.Ct. at cials.” *15 added). (citation omitted; emphasis 2262 IV. course, Here, will, there of be no adverse A. any if fe- of kind on other inmates effect guards of male con- guards male instead body clothed cross-gender If the searches, and, explain body the as I duct by Superintendent Vail searches authorized below, will there is no evidence that there pass muster under are to constitutional rights slight impact than the more must, first, “valid, Turner, ra- be a there general grousing by prison staff. The of cross-gen- tional connection between [the in the record is no sub- the staff reflected legitimate govern- der searches] for stitute facts. put justify to mental interest forward 89, Turner, 482 U.S. at [them].” Turner, Finally, must con- under courts (internal omitted; quotation cita- at 2262 whether there is an alternative to sider omitted). Prison claim tion administrators challenged practice fully that accommo- of prison needs that prisoner’s rights at dates de minimis employment rights guards justi- of ex- penological to valid interests. The cost fy cross-gender searches. As I discuss “obvious, easy” istence of an alternative below, any legiti- the connection between suggests regulation not reason- penological cross-gender mate interest and exaggerated response to but an able searches is tenuous. 90-91, Id., concerns. 482 at prison U.S. Here, is, at without requires a court to deter- 107 S.Ct. 2262. there Turner next obvious, easy to question, of exercis- alternative mine whether alternative means right guards perform to ing open remain to the use of male searches the constitutional Id., 90, 107 S.Ct. their na- the inmates. 482 U.S. at which because of intimidating of are prison’s highly at 2262.11 The authorization ture offensive and suspicionless cross-gender searches leaves to the female inmates whose bodies guards their can in- protecting no means searched: female be used inmates Doing may require slight An ad- unreasonable searches. stead. so bodies usually speak "exercising" 11. One does not the second Turner factor is "much more mean right ingful free in the amendment than in one’s to be from unreasonable first context Sumner, way speaks of F.2d searches the same that one the fourth." 860 Michenfelder However, Turner, exercising right marry, 482 U.S. at 331 n. while the second Turner one’s 94-99, 2265-67, right may ordinarily importance at one’s factor be of less to a at id., 91-93, mail, entirely inquiry, U.S. at 107 S.Ct. at it receive 482 fourth amendment is not involved, significance, give "passiv[ity]" right weight 2263-64. without and the we The (11th depend Thigpen, Harris v. 941 F.2d will on the the case at circumstances of Cir.1991), caused this court to observe that issue. has schedules, response security objectives. those Tur- guards’ work justment 97-98, preser- ner, pay for the 482 U.S. at 107 S.Ct. at 2266. price is a small Here, legitimate consti- inmates’ fundamental there are concerns that vation any rights. searches; Almost accommoda- justify suspicionless question tutional rights will result of constitutional specific having tion solution is whether burden”; most ac- “administrative some guards perform the searches is rea- male are not “cost-free.” Sa- commodations answering question, sonable. (8th Lockhart, 905 F.2d laam give knowledge deference all due denied, Cir.1990), cert. experience prison administrators. (1991). Id., 107 S.Ct. at 2259. Hav- practices in the adjustments minor ing so, I done conclude that the cross- Washington Corrections Center Women gender prison policy searches and the au- guards re- of female would that the use thorizing clearly them are “unreasonable.” relatively insignificant, both quire are against the weighed when themselves and (1) stake. interests at constitutional prison The first administra- interest B. support policy tors advance in autho- rizing body clothed fac- Properly applied, the four Turner guards security. is that institutional question partic- tors address the whether suspicionless or consti- officials contend prison policy is reasonable ular suppress searches serve to the movement To answer that tutes an overreaction. necessary through to evaluate and that question fully, it is contraband carefully the interests advanced to if male do not conduct some of the both practical searches, predict, and the justify inmates will be able *16 rights. policy gender guards effect of the on the inmates’ based on the around necessary them, to examine the force of It is also searches conducted. whether will be provi- specific connection the the between notes, opinion the majority As the district policy underlying prob- the sions of the prison’s security con- court found that the designed Only lems are to alleviate. justify do not random and routine cerns possible it by assessing these factors is fact, In the record cross-gender searches. actions are prison’s determine the whether slight penological justifica- reveals it reasonably related to the interests ad- by having' the searches conducted tion for decide whether the connection vances—to respect all due to the guards. male With prison’s the and the inter- between con- Superintendent, “predictability” the whether, light in is reasonable or ests appears primarily he relies cern on which policy upon prisoners’ the the effect of the highly conjectural. to be an rights, it reflects over- constitutional explana- Superintendent written enough are Vail’s It is not that there reaction. instituting the cross- reasons for may alleviated to tion of his security concerns that be They do significant. are regulation, gender or searches degree by minor the some pris- or the “predictability” not acting good is in faith and mention that the warden needs; instead security they discuss experience with on’s on the basis of his or her operation of the institution legiti- at hand. While “the efficient type problem the restriction, impact prohibi- the adverse may justify it and ... mate concerns [of guards] by male that must tion of random particular is the restriction equal im- inmate morale. Of problem at on staff and justified by particular hand. employ- fair Turner, portance is the distribution example, in the Court found For trial, superinten- security duties.” At legitimate con- ee work that there were issue, testified, beginning “The of this re- dent justified placing that reasonable cerns it, a lot was that there was right marry. as I understand upon the Howev- strictions simply tired of er, officers who particu- of female were ultimately it concluded that the males didn’t exaggerated doing all the searches and regulation represented an lar re- deployment prison guards of male is that that was They didn’t see do them. security is Superintendent quired by prison interests or equitable.” fair When or “Specifi- any legitimate penologi- deposition, supported asked at other Vail was again you cally, security issues it what cal even that would be consideration—or having per- responding to in male officers efficiency any way desirable testified, he “I am not pat form searches?” standpoint. Superinten- other institutional having issue responding to a speculation similar to the dent Vail’s pat perform the searches. officers male regarding type general assertion securi- by mov- responding security issues I’m advanced officials ty concerns ing pat is conducted towards that a search Id., rejected by the Turner and Court. facility. In at locations around random 97-99, 107 S.Ct. at 2265-66.12 position do and not be order to that Moreover, Superintendent’s reliance charges open I am of sexual where “predictability” proved factor un- discrimination, requires that all officers reflects, pris- As the record founded. (em- pat searches” be allowed conduct the district court’s experience on’s while added). trial, Superintendent phasis At preliminary injunction in effect was acknowledged giving above answer prison security impaired in the that was not deposition. then during his He added slightest by the prohibition cross- deposition in his thought he the statements gender Superintendent tes- searches. Vail testimony. trial were consistent with his following tified at trial the issuance of Further, no record there are facts injunction authorities were the district that contradict or undermine he to conduct all the searches believed able finding. To the limited extent court’s using guards—and necessary only female Superintendent testimony may be Vail’s that the searches were conducted at the contrary said to the district court’s to be places he times and the manner conclusions, testimony entirely specu- desirable. believed hypothesized, Superintendent Vail lative. short, unpred- prison’s policy example, advantage authoriz- ing suspicionless men to conduct ictability would be lost if were prisoners the female is not permitted conduct random searches: searches of supportable knows three on the of the stated secu- an inmate that there’s basis “[I]f *17 institution, guards rity male that side of the Female can officers on considerations. just to do as ef- perform then that’s the time move the contra- and those searches testimony significantly way fectively, any jeopardiz- This and without band.” ing any prison’s security the the undermined on cross-examination when of interests. every prison need superintendent that inmates do not minimize the admitted guards, ordinarily security safety not the the maintain the and would know sex of staff, However, guards “on that side the institution” and inmates. “the Su- there, they preme repeatedly and has held that rou- until arrived therefore Court arguments the not in advance that “that’s the tine and automatic effect could know addition, 'every step protect time In to move the contraband.” that taken constitu- a possibly rights prisoners an inmate cannot know in advance tional will lead to discipline temporary whether a search location will in institutional and breakdown up guards may security’ inadequate support so ran- be set that conduct restric- policies.” prison regulations dom “on that of the institu- tive or searches side Walk- Sumner, important, (cita- n. tion.” Even more neither Su- er v. 917 F.2d at 387 3. omitted). perintendent any prison particu- nor other ad- is Vail tions That admonition suggested single-gender larly appropriate that ministrator here. Turner, although penological Court the found that interest. The Court reached this marriage by might justified notwithstanding Superinten- some security restrictions conclusion the interests, prison’s particular testimony regarding the anti- dent’s concerns his marriage prohibitions experience notwithstanding regarding were not warranted—that reasonably legitimate prison security not were related Id. matters. causing significant any prison ad been made without that the

The second interest barring any male disruptions, suggest is that and did not reason advance ministrators conducting suspicionless guards changes the could not remain in effect. adjustments require some would prison—enlisting searches the the The burden on responsibilities, job schedules of staff union, cooperation guards’ adjusting the system in the overriding of the bid the job responsibilities, calling female officers possibly agreement, bargaining collective on-duty perform away from their meals to guards’ union. litigation by the leading to minor, minor searches—is and a burden schedules and adjustments of staff Minor preserve con must be endured order to do not constitute job responsibilities rights. v. Lock stitutional See Salaam justifies burden type of administrative hart, (holding required F.2d at 1171 rights; does nor overriding constitutional changes prison policy not burdensome of a labor modify provision the need to operating the light of the overall cost of adjustments pointed contract. prison).13 indeed. are de minimis prison officials Moreover, majority correctly con as the (2) rights cludes, employment have guards’ injunction compromised not been prison’s penological interest While Experience cross-gender searches. minor, the im- supporting regulation is system bid has demonstrated on the in- pact searches bargaining agreement are collective rights is substantial. mates’ constitutional prior to the is adversely affected. Even court found that an unknown The district policy pro injunction, prison suance of the inmates would be of the women number guards alone could con that female vided searches were reinst- greatly harmed searches, urinalyses, strip duct random finding clear- court’s is ituted. The district searches, of fe body cavity and searches ly correct. visitors, guards male alone and that male prison of the inmates at Most of male visitors. could conduct searches sexually physically and abused been against cross- preliminary injunction strangers.14 Hav- family members did not cause gender searches at rub, knead squeeze, and ing male single prison authorities to seek exceedingly harmful to these their bodies single BFOQ change job of a or to psychologist clinical A former women. trial; all that has guard as of the time intrusive prison testified record, according to the required, been revictimization, anxi- could lead to scheduling job adjustments in some possibly increased sui- depression, and ety, that are no more assignments, adjustments are survivors attempts in women who cide required from time than those burdensome social psychiatric A male violence. non-penologi variety of other time for a testified worked at worker who acknowl Superintendent Vail cal reasons. *18 presented “al- intimate searches changes had that the reluctantly that edged suspension nally, guards claim that the guards’ that the stated in its brief 13. The union greater cross-gender policy has forced "results in a suspension searches greater they guards being incur risk because female This claim contraband hidden.” risk of Vail, The record contact with inmates. have more by Superintendent at trial was refuted who, by single injury a suffered fails to disclose a guard above, injunc- testified that as noted searching The an inmate. as a result of guards prison from con- prevented tion had not suspension union also states that thought many neces- ducting as he as searches employment opportunities at policy has reduced thought sary, at times that he in locations and entry-level guards, offi- "as for male ap- he necessary, of which and in a manner specu- perform searches.” This cers must such proved. record, by unsupported which ex- lation is single BFOQ a has been plicitly states that not study by former According conducted to a injunction. of the established because eighty-five psychologist prison, at the clinical injunction dis- contend that the further percent have been victims of the inmates becoming courages correctional women from physical violence. men’s sexual or other any record is void of information officers. The might vague speculation. support Fi- such — McMillian, security." Hudson v. threat psychological most an unendurable omitted). (citations at —, Another 112 S.Ct. at 999 inmates. for such stress” deferentially how judged, that women No matter how psychologist testified clinical ever, superintendent the interests that the personal victimization with histories of They are by male has advanced are insubstantial. revictimized likely be would significantly outweighed the harm the their breasts contact with guards’ invasive injury and the guards’ touching policy inflicts on the inmates genitals, because Thus, pow- rights. were it does to their constitutional the women was unsolicited and the Bell applied they test fail prevent it. erless Wolfish light of the four Turner factors.15 If we Furthermore, inmates did even the who any legitimate penological inter say degradation that these experience the est, minor, requires us to no matter how suffer substantial recounted would inmates valid, prison’s then we that a find cross-gender searches. subjected harm invalid, any policy because a cannot find intrusive, issue probing searches at rarely adopt policy if ever prison will positions of ultimate permit men in here validity. claim of lacks even a colorable of women authority flatten the breasts Rather, prison policy must invalidated totally subject powerless and who are if, giving the knowl after due deference to control, to knead seams of their their edge experience administra clothing thighs, inner and to thrust at their tors, the constitutional in we find that upward into their their hands inward and prison’s legiti fringement outweighs the is offensive crotches. Such conduct is certain penological mate interests. Such women, regardless their all extreme simply It is not reason ly the case here. history. prior sexual have the searches issue conduct able understanding A common-sense guards. ed male experiences of men and women different suspicionless cross-gender Because the Brady, 924 F.2d Ellison v. society, “ ‘reasonably related’ to are not searches (9th Cir.1991), inescap- leads to the rep- legitimate penological objectives [and] searches of able conclusion that invasive ‘exaggerated response’ to those an] resent prisoners of female bodies concerns,” Turner, 482 U.S. at prison guards are harmful both because they violate the fourth S.Ct. at gender and reinforce subor- constitute uphold the district amendment. would dination, they offend our basic and because injunction of that con- court’s basis concepts dignity. of human values our violation. stitutional C. V. Constitution, pris-

Under the bodies, pris- like other limitations on oners’ Judge II address Part O’Scann now rights, oners’ constitutional must be rea- explain why I opinion lain’s believe sonable, exagger- and cannot constitute appropriate to base our it is more response prison’s legitimate to a ated on the fourth amendment than on decision goals. view, my Supreme In eighth. Cook Soldal v. evaluating Superin recent the interests that Court’s decision Soldal v. County support approach. dictates that tendent Vail has advanced — U.S. —, County, Cook prison’s policy, wide-ranging "accord *19 Soldal, (1992). In superintendent’s judg the deference" "policies that could ana particular practices ment that Court considered conduct be preserve lyzed internal order under both the fourth amendment . . . are needed to discipline process Unanimously due and to maintain institutional and the clause. ” 15. As noted above, Wolfish, rights is that test as follows: “The al search entails. Bell (emphasis test of reasonableness under the Fourth Amend- at 441 U.S. at 1884 balancing requires ment ... of the need of the added). page supra See 1524. particular person- the invasion search

1541 ment, general eighth not decision that the more amend reversing a Seventh Circuit character of only to the "dominant looked ment. — challenged," id. U.S. at the conduct majority argues appro- The that the most —, (quoting 113 S.Ct. at 548 Soldal priate examining challenged basis (7th County, 942 F.2d Cook searches in this case is the cruel and un- Cir.1991) (en banc)), Court stated that punishments eighth usual clause of the wrong "implicate[s] more than one where a amendment, because the inflict commands . . . we ex of the Constitution’s However, pain. requires us to look Soldal provision each amine constitutional to the fundamental conduct at issue before can no doubt that the turn." Id. There proceeding, if necessary, general- to more particular type question whether challenged ized characterizations of the be- impli constitutional search involved here is Here, havior. the fundamental conduct at Judge cates the fourth amendment. issue is a search. The searches of the opinion acknowledges O’Scannlain’s inmates, pain female not the those searches Moreover, Majority at 1524. no fact. inflict, challenged by is the conduct prisoners’ held searches of court has plaintiffs. Similarly, under a different bodies should be assessed searches, pain, not the infliction are Part provision. supra constitutional See injunction prohib- what the district court’s However, is III. the searches at because simply its. Pain is an incident of the un- eighth implicate here amendment sue searches, not, Judge reasonable as well, question therefore arises as to as it, gravamen O’Scannlainwould have “[t]he amendment, eighth, fourth or the which charge.”18 Majority of the inmates’ constitute the for our decis should basis 1524-25. ion.16 “search,” The term as it is used fourth requires con believe that us to Soldal jurisprudence, specific has a amendment con sider the fourth amendment before meaning.19 Insofar searches of core eighth. empha sider the The Soldal Court concerned, persons applies are the term importance applying sized the "the more all such examinations of the individual— `explicit textual source of constitutional searches, searches, body pat-down clothed protection’ generalized the `more [rather than] " — searches, body strip cavity visual visual —, no tion.’ Id. U.S. at searches, digital body cavity Connor, (quoting at 548 S.Ct. Graham v. how minimal or how searches—no matter 394-96, 1871).17 490 U.S. at 109 S.Ct. at contrast, they may probing be. "plainly The conduct at issue in this case " punishment” term “cruel and unusual has Majority a `search.’ at 1524. The "ex fixed, meaning. It is a far more no core plicit pro textual source of constitutional type limited to one general term that is not respect "per tection" with to "searches" of is, doubt, behavior, variety to a applies amend of instead sons" without fourth occurred, objective court must then 16. fourth amendment no violation has The involves light eighth proceed examine conduct in test of reasonableness while the amend remaining provision provi- requires subjective inquiry into the state constitutional ment implicated. sions of mind of the officials. Graham v. Connor, 386, 396-400, 1872-73, (1989). It is the sub L.Ed.2d they Although pain, the searches inflict are jective inquiry poses the most difficult simply pain because of the not unreasonable majority problems for both the dissent. IV.B.(2). supra exis- cause. See Part objective inquiry undertaken here a far determining pain is a factor in whether tence of simpler unreasonable, one. but does the searches dictate that determination. conduct, Soldal, challenged 17. Under if the ana- lyzed light "explicit textual rather than the source 19. I address the term "search" protection,” that is the constitutional leads to the conclu- term search" because "unreasonable occurred, analysis when sion that a constitutional violation has mode of the Court used in Soldal If, however, go rather than "unreasonable the court need no further. it addressed "seizure" *20 — at —-—, Soldal, analysis explicit 113 court's under the seizure." U.S. more consti- provision tutional leads to the S.Ct. at 543-48. conclusion that 1542 seizures; a governmental unreasonable each describes unconstitutional

of forms of Because, pun my the cruel and unusual in conduct. Under discrete form of conduct. clause, analyzed, for view, courts have ishments the fourth amendment without unduly sentences are example, claims that question explicit “the more textual source constitutionally inapprop or otherwise harsh protection” against the of constitutional have been sub riate,20 claims that inmates here, at that this searches issue believe unlawfully jected or physical abuse21 case should be decided on that basis. treatment,22 and claims that denied medical Soldal, logic tells us to Even without “deny mini confinement ‘the conditions of consider the fourth amendment first. of life’s necessi mal civilized measure ”23 advantage simplicity, in — There is an even Seiter, at v. U.S. ties.’ Wilson amendment, Under the fourth law. (quoting v. —, 111 S.Ct. 2324 Rhodes clear, legal problem is issue is and the 337, 347, 452 101 S.Ct. Chapman, U.S. agree relatively simple. parties All (1981)). 2392, 2399, 59 69 L.Ed.2d search; challenged actions constitute punishments and unusual The cruel question is whether the search is in the same functions in this case clause “unreasonable.”25 The determination of way process the due clause did requires merely applica reasonableness generalized, explic- not the Soldal: objective legal principles. tion of Accord it, protection impli- notion of constitutional ingly, we should not commence with the by challenged behavior.24 Simi- cated complex posed by exploration an of issues prohibition of larly, unreasonable Moreover, eighth amendment doctrine.26 in this case functions the same prisoners’ while no search of bodies could against sei- way that the bar unreasonable eighth without also violate amendment did in the fourth amendment zures Soldal: fourth, violating the the converse is explicit of is the textual source constitu- Thus, involving true. cases such search, protection against as it tional searches, an examination of the fourth A core seizure. fixed always disposi amendment issue will meaning prohi- inheres in the constitutional tive, eighth analysis of unreasonable searches and while an amendment bition both — U.S. —, (attributes See, (1992) e.g., jury Michigan, capital Harmelin v. 492 of sentenc 20. 2680, Director, (1991) (sentence ing); Dep’t v. S.Ct. 115 L.Ed.2d Missouri 111 836 Cruzan of 261, Health, 2841, imprisonment possibility of 110 S.Ct. 111 L.Ed.2d of life without drug pri (1990) family parole imposed (right offender without 224 members termi convictions); felony Penry Lynaugh, hydration v. 492 nate artificial and nutrition wom 302, 2934, (1989) state); vegetative persistent 109 S.Ct. 106 L.Ed.2d U.S. 256 Michael H. v. (death mentally D., 110, 2333, penalty applied to disabled U.S. 109 105 Gerald 491 S.Ct. man). (1989) (parental putative rights L.Ed.2d 91 Hardwick, father); biological v. U.S. Bowers 478 See, McMillian, e.g., supra (prison 21. Hudson v. 186, 2841, (1986) (state 106 S.Ct. 92 L.Ed.2d 140 justification); penological beaten without er statute); sodomy California, v. U.S. Rochin 342 Albers, (inmate Whitley supra v. shot in the knee 165, 205, (1952) (propriety 96 L.Ed. 183 riot). during suspect’s cap pumping stomach to retrieve narcotics). sules See, Gamble, e.g., 22. Estelle v. U.S. (1976). S.Ct. 25. We have once before considered the constitu See, Seiter, (mentally supra e.g., v. 23. Wilson tionality prison’s policy of a prisoners healthy physically ill housed with Rushen, searches. In Grummett v. (9th Cir.1985), 779 F.2d 491 excessively prisoners; prison overcrowded and pat-down we found "routine heat, heat, inadequate noisy, with excessive im area," searches, groin con which include ventilation, inadequate proper bathrooms, unclean inmates, ducted on male to be female unsanitary dining facilities and Holding Id. at constitutional. preparation). food cross-gender searches at issue here unconstitu Grummett; tional is not inconsistent with examples demonstrating range 24. For type injury caused the current searches is implicated governmental the due conduct quite different from that which we considered clause, Casey, process see Planned Parenthood IV.B.(2). supra See Part there. — —, L.Ed.2d 674 (state statute); (1992) Morgan Illi abortion — U.S. —, nois, supra L.Ed.2d 26. See note 16. *21 blouses, belts, removing their ing their tak- precursor to the only a may prove to be shoes, raising legs, their ing off their amendment duplicative fourth necessarily squeezed in searched and shoved and but review.27 those areas of their bodies that have the reasons, I believe For the above closest connection with their sex. That the holding the fourth rath- our on should base alter partially women are clothed does not eighth amendment. er than pris- explored. the areas that are That the “pat probings officials should call these CONCLUSION misdescription preposterous downs”—a view, prison’s my In Judge opinion makes clear— O’Scannlain’s the fourth body searches violate clothed decency the indifference to underlines uphold injunction I would amendment. proceeded. warden has which However, I also believe ground. on that and unusual Is indecent treatment cruel eighth amendment. the searches violate in the sense Constitution? Stan- Judge join in O’Scannlain’s I therefore decency normal con- dards of derive from II. except for Part opinion, indecent is a duct. The breach norm, the unusual. The indecent is not is NOONAN, Judge, concurring: Circuit indecency necessarily cruel, when is but by powerless men on women it has opinion inflicted Judge I concur O’Scannlain’s that manifests the sa- the sexual character not or- warden has and add: It cruel. distic. cavity to conduct guards his male dered Why? prisoners. searches of women of the state of the criminal code Under an em- surely deprivation no less It is genita- Washington sexual contact with the men. It is opportunity for the ployment lia, person is or buttocks of another breasts female duty no less an extra for the surely felony. B a Class Matter of Welfare of surely improve It officers. would Adams, P.2d 995 Wash.App. by conducted both for such searches (1979); Ann. 44.100. 9A Wash.Rev.Code § observed, pris- Judge As Trott has sexes. community though “the standards Even in their adept are at concealment oners morality de- propriety and decency, sense, parts. But or rath- private common 1939, Adams, markedly” generated since er, decency has told the warden common touching of the sexual 601 P.2d at 997 n. gross such sexu- that no one could stomach body consti- person’s of another such areas and wom- al contacts between Id. of “indecent liberties.” tutes the crime gen- prisoners. genitalia of one en Naked no dif Washington law makes Under by routinely inspected der cannot be through touching is done that the ference Indecency gender. guards of the other Adams, clothing. 601 P.2d at 997. beyond expectation our as a this kind Washington court reaching this result the beyond society and what Constitution by reached an Ore similar conclusions cited countenances. Buller, court, gon appellate State (1977); plain fact is that the searches Or.App. 571 P.2d 1263 Peterson, essentially Court, here are not different. Supreme issue State Utah 1977), genitalia, (Utah upholding a They searches of women’s 560 P.2d 1387 by men—inspections abuse" where and buttocks of "forcible sexual breasts conviction vaginal therapeu- area by consent with a had touched not conducted the defendant court through slip, her operations carried the victim purpose, police tic touching in dictio defining the forbidden persons powerless object and not out on examine including "to nary terms as cooperate unbutton- only commanded to — at —, Seiter, Wilson v. the fourth amend ishment. A search does not violate prisoners’ wantonly if it is reasonable. A search of cannot be deemed ment S.Ct. at 2324. Pain cannot, pain yet is reasonable unnecessarily bodies that inflicts by if the search that inflicted definition, pun cruel and unusual constitute necessary judged — inflicted it is to be ishment, wantonly because conduct or reasonable. unnecessary pain pun inflicts constitutes such *22 1544 (Jared Revolution, Sparks, at 324-326 fingers"; People ican

feeling with the 1853); Benjamin Lincoln 821 Letter Thomas, 398 ed. N.Y.S.2d 91 Misc.2d 25, 1780), (Sept. 3 Washington Cor- George Attor (N.Y.Crim.Ct.1977), where District respondence the American Revolution successfully prose ney Morgenthau Robert Affidavit, 96-98; supra, at 67. Troup of "sexual con at the misdemeanor cuted for and un- 130.01(3), Framers understood that cruel a male The tact," Law N.Y.Penal § by can be administered punishment squeezed a female usual rush-hour rider who IRT charge give heed of those in the failure passenger’s clothed buttocks. on those impact of their actions to the law, Washington such con prior Under their care. within criminal unless been tacts would not have American civil servant can be gratifying sexual A bland purpose of done "for the Wilson, as a ferocious concentra- Wash.App. much of beast State desire." statute, (1989). camp guard if he does not think about tion 782 P.2d doing. Single-minded are his actions has eliminated what as amended monster, though Inspector Javert is even Ann. 44. language. 9A Wash.Rev.Code § duty. his Half the open ques he focused (West It is an Supp.1992). in- history have been cruelties of human purpose could still be tion whether that of the continuing require conscientious servants flicted read into the statute’s can be a state. The mildest bureaucrats We do know ment "sexual contact." eyes from his is if he does not raise his touching criminal brute that under Adams the beings on the human is naked or task and consider whether the touched woman having impact. he Here the complete the whom is an The crime is "when clothed. spot in the warden’s mind—his inabili- person incapable of consent blind other is defective, unwillingness to into mentally ty or take account being mental reason commanding he his male ly incapacitated, helpless," indecencies was physically 44.100(b). Ann., guards to commit—constituted indiffer- 9A Wash.Rev.Code It is § ence, suffering physically indifference to the he was say prisoners fair to that helpless persons going to inflict on the helpless. do know that the criminal We responsibility. indif- unimprisoned part placed within his Such protects law obdurately suspended wanton and it was population not in ference was the state’s is light prisons. even when a flood of state’s maintained subject. It was unconstitution- cast on the if determine But our task not to punishment. al guards’ criminal—help- contacts would be country civi- reflecting did a civilized and a though ful the criminal law is How decency—but Washington get like into this fix community standards of to lized state judges tell a re- conduct where it takes federal determine this cruel and unusual stop sponsible approval official to punishment. is unconstitutional The war- state violating he prison’s indecency den of his because focussed on the needs blindly By going administration. Does that fact save him? Constitution? down path egalitarian premised on the belief The Framers were familiar from their are no real differences between the there experience prisons of British wartime sexes, must march to a unisex that we punishment of cruel administered the kind necessary In the effort to eliminate world. mentality Cap- of a a warden with the gender discrimination based on there has Troup Bligh. tain See Robert Affidavit simpleminded eliminate been effort (Jan. 17, 1777), Courage, in A Salute To en-gendered persons. gender. But we are (Dennis 1979). Ryan, P. ed. But cruelty were There should not be male at a also familiar with prison. came from bureaucratic indifference the women’s There should be a superintendent prison. conditions of confinement. Letter male of a women’s See Morris, George Clymer from Robert and Our statutes should not be construed to (Jan. Washington George George require suppression Walton such mechanical 7, 1777), Correspondence recognition in 1 in our culture such a rela- the Amer- obligation under an to take reasonable power and women men tion between difficulties, temptations, guarantee safety measures to prison leads to abuse, They and unusual inmates themselves. must be ever finally to cruel attempts drugs context That is broader alert to introduce punishment. *23 premises this case. and other contraband into the of which, notice, judicially we can is one We, however, to reform are not asked problems perplexing pris- the most of ons Washington, and the prison system of they prevent, so as today; must far assign us such a role. does not constitution possible, weapons of illicit into flow our wholly and within task is narrower Our prison; they vigilant must be competence. It has been constitutional escape plots, drugs detect in which or say when the federal courts confided to involved, weapons may be before being by the state are imprisoned those In addition to schemes materialize. acts, by the state to indecent subjected tasks, it is these monumental incumbent punitive. It is the unusual and cruel and upon these officials at the same time to impose on one genius of our Constitution sanitary maintain as an environment for duty protect government the part of feasible, given the diffi- the inmates as power of an- those under the from excess culties of the circumstances. very government. At the part of other scale, prison, in a 517, 526-27, of the social Palmer, bottom 468 U.S. Hudson v. disre- process mindless (1984) must halt a 3194, 3200, 82 L.Ed.2d 393 S.Ct. human moral culture and our garding added). our (emphasis by set oversteps the boundaries nature also fundamental law.

our Supreme Court tells us "[t]o TROTT, Judge, with whom Circuit conduct punishment, cruel and unusual KLEINFELD, Circuit WIGGINS punishment purport to be at that does WALLACE, join, Judges, and with whom ordinary lack of all must involve more than dissenting: Judge, joins part, in Chief prisoner’s interests or due care for the begin pris- information about with some 312, Albers, safety." Whitley v. helpful information is to a com- ons. This 1084, 319, 1078, 106 S.Ct. understanding of this case. plete added). (1986) (emphasis The "more" that Prisons, definition, places of of mind on the involve is a state must involuntary persons who confinement antagonist "wanton." part of proclivity for anti- have a demonstrated "The source 106 S.Ct. at 1084. Id. at violent, criminal, and often con- social predi requirement is not the intent [this] necessarily shown a duct. Inmates have Court, Eighth of this lections conform lapse ability in to control and itself, only cruel which bans Amendment legitimate to the stan- their behavior " v. punishment. and unusual Wilson impulses society dards of the normal — U.S. —, —, Seiter, 111 S.Ct. self-restraint; shown an (1991) (emphasis in L.Ed.2d 271 in regulate their conduct inability to original). respect law way that reflects either a subjective requirement was re- Whitley’s rights of others. appreciation or an in with considerable em- iterated Wilson partial survey of the statistics Even phasis: il- prisons in our Nation’s violent crime prob- magnitude wantonness, lustrates not in- obduracy It is lem____ good faith, advertence or error prohibited “community,” pris- characterize the conduct this volatile Within Punishment all neces- the Cruel and Unusual on administrators are take Clause, that conduct occurs steps safety of not whether sary to ensure establishing conditions and administrative connection only the staffs needs, confinement, supplying medical They are personnel, but also visitors. our determine text, tasks and one over a tumul- control restoring official Is it "deliberate controls. which standard tuous cellblock. Es defined in as Wilson indifference" — —, at 2324 111 S.Ct. U.S. at Id. Gamble, 429 U.S. telle 319, 106S.Ct. at Whitley, 475 U.S. (quoting "maliciously (1976),or is it 50 L.Ed.2d 1084) (emphasis original). at very purpose of sadistically for the holding, the Court repeating this Whitley causing explicated harm" intent flatly rejected the idea that Wilson — —, McMillian, Hudson — atU.S. inquiry. Id. is irrelevant 995, 998, 117 —, L.Ed.2d 2324 n. 1. Justice 1, 111 — n. (1992)? crystal in the second clear made this White he com where of his dissent paragraph we need *24 question, to this the answer For disregarded majority prior plained that the it to examine what to the record turn first con holding that "conditions [of decisions security expedi- dealing with: a is we are pun part are themselves prisoner, finement] ent, or a medical need though `met ishment, specifically not even Justice Holmes issued of both? measure — U.S. judge." Id. ed a statute or out’ keep in is useful to wise admonition that —, (emphasis at 2328 at said, perform this exercise. He mind as we original). words, at things or think not “We must constantly translate our we must component of least objective As to “the [Jor stand, they the facts for which prison claim words into Eighth Amendment dan’s] serious?),” sufficiently and the true.” (was keep are to the real deprivation we — at —, Holmes, Wilson, Papers at Legal U.S. Oliver W. Collected conclusion are accept Judge (1920). I O’Scannlain’s The facts of this case believe, howev it has been satisfied. histories women with these: Some testimony, er, “shocking” the inmates’ abuse men will physical sexual well, has quite he has summarized which parts periodical- private their external subjective analysis of the seeped into his clothing by the through their ly searched should makes clear one element. it Wilson This corrections officers. hands of male oth inappropriately carry into the not over dis- touching may them considerable cause agree respondents’ er: “We do not with who tress, which those of us a distress of con the ‘wantonness’ suggestion that ap- experienced may fully it not have not upon pris depends upon effect its duct Nevertheless, preciate. these women that, Whitley assuming teaches oner. they serious committed prison because enough satisfy is harmful conduct forfeiting offenses, their liber- felony thus Eighth component an Amend objective we places, difficult ty. Prisons are claim, can characterized ment whether it are, things way deal with must upon depends the constraints as ‘wanton’ like to be. way we them would — Wilson, U.S. facing the official.’’ subject’s Constitu- As we examine our omitted) (citation —, 111 S.Ct. at 2326 kill two birds with morphology, we tional original). (emphasis measurements, look, for as we take its one summarize, controlling Supreme all To explore mental state of the also Punishment and Unusual Court Cruel practice for the to see responsible warden pris inquiry into a “mandate Clause cases “culpable” state that mental was whether it of mind when on official’s state scrutiny here practice not. The under has inflicted cruel claimed that the official inseparable from the intent turns out to be punishment. See also Gra and unusual imple- conceived and which was both Connor, ham mented. (1989).” 1865, 1872, 104 L.Ed.2d S.Ct. — at —, Wilson, at 2324. II mind can be an actionable state of Unless A. identified, the must fail. claim dealing practice with a instituted Are we definitions problem is there are two Washington Center for con in the Corrections in this Constitutional of wantonness Prisons, (“WCCW”) “purports to be the Director of Division of Women My telling among things answer is no. The rec- him punishment”? other that she any surprised is devoid of evidence whatsoever ord was to discover not all officials disputed suggesting that the conducting pat WCCW, even were searches at designed implemented to be or were only the females. Mr. Kincheloe testified one thinks of the punishment. Whatever surprised he was in the because women’s searches, efficacy propriety or of these visited, prisons always he had there “was intended to control the un- were cross-gender search.” contraband acceptable movement Eldon When Vail was chosen to take over throughout facility. WCCW, Mrs. transmitted Wood her con- cross-gender implementing The idea of cerns to him. origi- searches for contraband at WCCW A____ I alerted him to the fact that Wood, Assis- nated with Mrs. Tana D. absence of [the searches] of Prisons of tant Director of the Division issue, how how felt that it [sic] Washington Department of Cor- State doing related to in terms of not career, lengthy she During rections. her doing enough random searches and not counselor, a cor- had been a classification searches, something and that that was *25 supervisor, a correctional rectional unit going that he was to have to deal with program manager, Superin- the Associate right away. Washington State Peniten- tendent of Wood, however, Mrs. did not make the tiary, and a division director. Mrs. Wood disputed decision. She left it to her succes- Acting Superintendent was sor. 1, 1988, between October and Janu- WCCW Q. you Before left as its in- WCCW 20, 1989, job over ary when she turned the superintendent, you terim had made a Mrs. served Superintendent Vail. Wood your regarding in decision own mind hiring and at WCCW while recruitment cross-gender pat searching at WCCW? permanent superintendent being was con- a probably A. I had made what was a reassignment previ- after the ducted I personal decision. made a conscious ous warden. decision, fact, in I not deal that would of Mrs. Wood’sfirst tasks on arrival One that, superinten- being the interim to conduct an overview of at WCCW was appropriate It was more for the dent. security; “primary it her inter- she called policy de- superintendent to make a new “security quite concluded was est.” She My I felt cision. observation was that surprised quite lax.” testified: “I was She something long that that it was was out, example, pat that searches to find for implemented, overdue and should be very infrequently and in were done formally to cause that to nothing I did places;” “I well-specified one or two and happen. doing that were not cross- discovered however, did, her adminis- ask Mrs. Wood very surprised I gender pat searches. was survey take a brief for trative assistant to doing it.” When asked to weren’t Superintendent Vail’s use of surprise, “I explain her she answered practices penal at other corrective search presume any correctional officer would facilities. pat my experi- would search ... because in the institutions female ence Thus, [where decision-maker was Su- the actual patted officers male in- correctional down Vail, perintendent who the district court partly and because I a consider mates] witness. To unveil found to be a credible professional correctional officer to be a moti- Superintendent purpose and his Vail’s person, gender any- I has and don’t think vation, quote directly: him thing to do with a correctional officer’s security Q. any specific Were there performance of duties.” objectives you wanted to goals and cross-gender pat security through her find- Mrs. Wood discussed achieve Kincheloe, searching? ings Larry and concerns with for incarcerated there ability five individuals are experience, my A. From being. have killing human We another pat a to conduct officer

for a correctional drug offenders. percent or part of his a fundamental search is inor in most institutions job, her everything includes “Contraband" in, I had been what other facilities that guitar strings to egg sandwiches salad In- taking place. had witnessed alcohol, heroin, drugs, co- weapons, deadly it, that it and staff knew knew mates Mrs. caine, hypodermic needles. Wood body can occur clothed problem contraband food is testified that de- any an officer place, time when any “pruno,” it is used make because That creates it needs to occur. cides ingenuity prisoners prison alcohol. The in inmate unpredictable element regard beyond Superin- debate. in this so throughout the institution movement “HIV”, he has Vail also noted that tendent guard always that inmates institution, AIDS, in the potential for or the That packing contraband. about bit very about the he was worried and that chance always least a slim there’s syringes found in 1989 “three or four” And to search them. someone will ask prisoners whom could be shared overall, is the was and that was—that responsibility. he had imple- tried to that we’ve issue increasing reflects an The record also ment. Super- inmates level of violence Later, observed Superintendent Vail prisoners: other intendent Vail’s staff and you’ve got 1983, to have an element 1982, “that five fifteen two instances facility to in correctional unpredictability eigh- eight twelve of contraband impede twenty- deter the flow fourteen in teen in Kincheloe, November, *26 it.” Director with whom within of one as Superintendent his de- Vail consulted about provides information as Wood also Mrs. cisions, agreed: “I felt that the control WCCW, information that to the nature of that necessary and contraband was ... who are inter- may of interest those be cross-gender without in as in behavior ested women’s accomplished.” The reason could not be to men’s. compared unpredictabili- for his belief? The need Q. During your three- or four-month ty. superintendent at period the interim as WCCW, you you make—did did

B. any observations opportunity make regarding topics inmates such Superinten- female problem What kind of a was violence, relatively contraband? addressing? his a dent Vail Was housing mostly pas- institution actually quite trouble-free time spent I a bit of A. offenders, had it years to, over the sive or talking comparing observing, and also he something else? What does become the—my experi- offender with the female Superintendent mean “contraband?” in facilities. I was—actu- ence the male gives Vail us the answers: I to me and was—I ally it was interest not, surprised if I but I to ’88 our rec- don’t know was

A. believe ’85 that much I found that there was not that we doubled the amount ords show types in most issues. The within the institu- difference contraband discoveries for, the they committed larger category crimes that were tion. Inside of important to weapons types of issues that were recoveries contraband [sic] very, very similar to the Drug drug parapher- them were also doubled. know if recovery tripled males. I made some—I don’t approximately has nalia relevant, you they know—observa- during to 1988 we were that time. From 1985 thought I drug tions about what about the amount of offenders doubled they money property The number of violent terms the institution. think, they offenders, per- disposal. I found that up I seven had at their went other, institution, they pressure each Today one out of intimidate each at the cent. slight- WCCW, (2) Weapons may of choice characteristics women other. just man because of ly prior implications different than a abuse factor and its spent But I a lot of physical strength. behavior, (3) how such women relate in time, very I interested in determin- (4) supervisors, possible to male ing similarities or dissimilarities between inmates, (5) pat effects of searches on populations. two cope how correctional officials should with cross-gender the inmates’ reactions to

C. tape searches. also contains a section “Improper entitled Pat Search Procedure” cognizant Superintendent Vail Was which a officer demonstrates on a searches to cause potential of these wrong way female officer the to conduct a psychological negative side effects such as an- search. This is followed a section called gender harassment? The distress “Proper yes. Pat Search Procedure.” It is note- swer is worthy lengthy training tape that this pretended that A. I’ve never designed to teach officials how to find issue, complex I anything very contraband, but how to conduct the search merits on sides of think there are both sensitivity in- to the concerns of the ex- this case. I think that the concerns tape mates. The tone of the can be very inmates are real pressed up by summed a “voice over” statement regarding potential the discomfort and during the demonstration sections that having for harm and at least fear at “Remember, says, professional maintain a checks and occur. want to build some demeanor at all times.” system so that feel balances into the protection there’s some from the administrative level on how these D. get searches and when these searches Superintendent implement How did Vail conducted. his decision to use searches to policy There’s other features in the prison? Again, promote that, speak too. The idea of quote testimony. from his having sergeant decide or not whether Q. quickly quickly—well, How how something I a search is to occur is would training re- you thinking did start about facility. I put never in a at a male *27 cross-gender pat searching garding after wouldn’t need to. That comes from their February you your made decision on training expectation initial and it’s an 26th, policy? implement to such a regularly all officers and it’s conducted training Immediately A. became an represents a with all officers. It such my mind. issue WCCW, change though, I radical Q. your thoughts initial What were sergeants’ to wanted the involvement regarding training policy? any appearance eliminate of harassment. im- going very to be A. That was Moreover, Superintendent Vail consulted or failure of the portant to the success regarding his mental health staff implementation policy. of that procedure, changed some of its as- search Q. you delegate any responsibili- Did pects input, produced to reflect their training? ty regarding training tape staff. lengthy video for all it, yeah. portions A. Different tape designed to ensure that the was Q. you staff knows how to conduct the searches How did do this? as professionalism

with interfere through task force A. That was possible dignity. the inmates’ little as with you to call committee—whatever want put togeth- group of folks—that we training tape The title of the is “Philo- and work each of er to sit down and talk Pat sophical Aspects of Cross-Gender the different issues. Superintendent Searches.” It features coming up psychiatric Lindy Primarily, training and with Vail and social worker search, (1) discussing technique psychological Simons bring back to and do and search, go off actually, was or pat female Lindy part of the group. was larger I think McRae. charged to Wanda larger group. people involved couple of other there’s Daigle Willy been might It have well. im- Q. the mission of this What was sure Waitkevoch, I’m not but Walt committee? plementation too—mainly asked them I asked that. finish on us from start to A. To take out resources go and find what Wanda to had made The decision been this issue. ways do describing the different exist pursue this going to that we were at those look type of search and this help I search, I all the could and needed subtract, add, combine, do resources, to about how the institution staff get from appropriate to felt was whatever she get that done. for the search up with the best come Q. Now, at this time that Lin- was it facility. her con- dy discuss Simons started progress of Q. you monitor the Did cross-gender policy regarding the cerns training committee? at WCCW? regularly. met A. Sure. We Probably the time that that A. before regularly? How often did Q. What is put together. group was you meet? Q. again, this have been And would every couple of least once A. At 26th, February 1989 decision? your after weeks, only ten meeting if the even spoken may me A. have brief- She minutes, tasks find out what or fifteen then, I'm not sure. ly before obstacles completed what had been Q. you say that did some You up against____ folks had run finally input into how the search was any specific training Q. there Were trained? studies, pre- outlines, documents, ever A. Yes. training pared connection with this Q. input any Did come mission? implementa- of this through the conduit Well, training was a outline A. there tion committee? of the work that that was a final result A. Yes. couple on a did. It was refined Wanda Q. of that kind What was some input into it. I had some of occasions. input? it and Actually input I a lot of into had I changed lines in it that didn’t like. Well, some I one the meet- A. believe at training outline— Now, you ings we reviewed Q. Lindy We see Simons. outline, talking say training I’m videotape. talking her on the when technique I’m that Wanda Exhibit about actual think it’s Plaintiffs’ together group—and with her Lindy put Simons involved at had mistaken. Was *28 it, committee, directly editing training or of made some all the did some indirectly? changes to it. training

A. On the committee? Superintendent Vail revised the search Q. Yes. acquired as he more policy called for com- implementation causing On the potential A. No. information its about mittee, training committee. the Originally, but inmates. distress to some by an be conducted officer search was to

Q. right. for a few All Let’s talk using palm the behind an inmate positioned com- implementation moments about Superintendent altered mittee, the hand. Vail its distinct mission was what attempted he to minimize this as training committee? apart from the explained: invasiveness. He search’s brought together I folks from dif- A. room, search, any search of a sit A. A areas of the institution to and ferent detector, through a metal or what- through. going indi- this issue Different talk procedure, my ever, an invasive and pairings viduals or or trios from it given assignments feeling was that to do from behind group specific own were procedure. input was too invasive of It mental health staff. I made me too uncomfortable. What did do was direct that the search move more towards the front—in other Q. you suggest and What did what words, position of the officer in rela- finally implemented

was as an accommo- tionship to the inmate. I think yesterday feeling? dation to this front, I said to the and that probably portion A. That do that we would misleading—so that the breast area and the search from the front and that we legs and crotch area generally would do with back the hand. searched from the side. Q. again, portion And what you talking search were about at this explored The court itself particulars you point, where are in front of the in- of disputed again, search. Super- Once mate? displayed appreciation intendent Vail competing sides of the issue. groin.

A. The By Judge Bryan: Q. And how is that done from in Q. Vail, front of the inmate? me, guess— Mr. it seems to I well, maybe right way that’s not the put training your—the A. You that I put questions it. I—I asked where I through, hopefully went which was simi- position, seem to take a I and don’t mean everybody lar to what else went position. asking take a I’m them to through—you put your hands around the you find out I guess what think. what it upper thigh lower to of the inmate and (cid:127) that, generally, palm seems to me is you go up, twisting turning then and fingertips area, are more sensitive you get until than your to the crotch the back of one’s hand or (indicat- the side of your hand is—this blade of hand one’s hand? ing) point is into the crotch at that

you simply sideways you go turn A. Yes. leg way.

back down all the Q. issue, If is the wouldn’t it Q. sideways You turn so that palms be a far better search to use the your back of hand— fingers than the back and sides of hands these sensitive areas that are A. Is in the crotch area. easily areas that contraband can be Q. length What is the of the contact transported? your of the back of hand with the crotch search, area? A. It would be a but I better guess part balancing act Very A. brief. A second. of—of needs and the inmates is Q. staff any Is there movement with the (sic) try away and reach to do this as back of the hand the crotch area? painlessly possible. sliding Is there a movement? Q. this, you already I think addressed A. No. No. The intent is to if it see guess—trap you into the idea that something feels like there is in there that pain in- there is some involved for the any shouldn’t sounds such as cello- mates? phane are made. recognize A. that. Q. just momentary pat So it’s liter- added). ally (emphasis of the crotch area?

A. Yes. Moreover, Superintendent instituted Vail *29 present” policy.

a transitional “two officers explained He this feature as follows: A____The original examples when we Q. requirement an Was there for ob- figuring thing were out of how the searching policy? server under the old search could be conducted was almost No, A. No. there was not. exclusively from behind inmate. It Q. you change regarding Did make a exclusively was from behind the inmate. aspect? that I was that uncomfortable with for a num- reasons, relating

ber of of them some to A. Yes. Superin- dehumanizing: strip search. why change, and Q. was What explains: Vail tendent make it? you would Now, your Q. I understand earlier did to Well, two officers required A. we thought you correctly I testimony when search, during one to ac- present be incidents you cut down on the said observe, and it and one to tually conduct mandatory searching? pat One, of reasons. for a number that was Yes, you that cor- did understand A. one, main was that both probably the rectly. very going to be inmates were staff and you re- Q. specific areas did What search, and the doing this uncomfortable requirement for mandato- move from of staff miscon- possibility of accusations ry pat searches? to exist. and continue duct existed Going through maintenance A. part were offender Fears on coming visiting. gate to concern, hoped it was also Q. pat searched who Are no inmates presence a second individual would visiting? to going calming influence on the simply have a they are. A. Sometimes provide And also another process. whole allegations pat searching? Q. should You have random of information source occur, im- from the inmate as to either A. Yes. possibili- were two

proper search—there any changes Q. you make other Did One, says an inmate there’s ties. practice at WCCW? search and it didn’t occur. improper search percent A. eliminated We improper an there was other is security in- strip searches medium gave me did occur. That search and it visiting. In other contact mates after hap- person to ask about what another words, percent to 50 went from 100 day. pened on that percent. Q. Why? Superintendent Vail also established deter, complaints Well, grievance procedure point for inmate is to then A. directly important to him. is to un- a channel element be which included the most also, know, addition, you despite predictable. he interest in the And displayed important do I think it is of the correctional offi- the fact that process selection impor- is also carrying pat searches and think it responsible for cers who would be searches, strip it an invasive tant do procedure. out procedure and it is difficult for some A____Also right now, progress I’ve experience. I go through that women to training my personnel manager, my got similar, could maintain a felt like we manager, psychiatric so- and one of the same, may even level better working ques- on a cial workers list security by approach to those different perspective ask candidates tions to searches. two people those who are hopefully weed out spe- Q. again, you to be And want negative attitudes towards racist or approach. on the different cific women. know, Well, so—you it was A. you go visiting predictable. If E. inmate, security you are you’re medium implementation of Superintendent Vail’s going strip-searched. You know to be cross-gender pat Well, searches WCCWcannot inmate tells an what that. correctly isolation. It was contra- get be evaluated to do or not do need readjustment just like part of an overall the institution. It’s band inside mandatory practices pat being within the Corrections at cer- search By using cross-gender pat impor- What was more Center. random tain locations. searches, Superintendent the element of Vail was able tant was introduce *30 operation. And substantially proce- unpredictability other into to reduce search by avoiding half of dures, very do that one of invasive and we could which searches, better, Q. strip my you BFOQ it was in Did consider as an al- cross-gender pat ternative to searching estimation. your facility? I talked A. about it with a number of F. folks, being Mr. Kincheloe one. He indi- question persists why as to obvious experience, cated to me that based on his Superintendent assign pat Vail did not get person- we wouldn’t them. And also only to female correctional offi- search task staff, nel Robert Turk and Donna Grazzi- illuminating cers? His answer is as to not opinion ni. Their was the Mr. same as problems superintendent a faces Kincheloe’s, that we would be unsuccess- managing legal a but also certain attempt get BFOQ’s ful in an for the complexities created laudable measures institution. society adopted equal our has to insure Q. you. Thank employment opportunities for both sexes. Vail, if you Mr. had an all-female staff, Superintendent operating help you would that Vail was under out at all on pat searching system-wide program a at WCCW and the affirmative action Department registered concerns that have been of Corrections that had regarding inmates specific goal of 43 female officers for his searching? institution. As of date his testimo-

ny, Yes, he had 45 male and 41 correc- female A. it would. officers, tional and 3 male and 4 female Q. Is that an you alternative that con- sergeants. correctional He testified that sidered this case at all? parity for female officers was one of his No, A. it’s not one that would be- concerns. in, legal lieve nor is it one that I think is training. my Second, Superintendent when Vail took job—in escape over his shadow an Mr. Kincheloe testified that did tighten security— and with a mandate to BFOQs Prisons, in the Division of female correctional officers conduct- were only for unclothed searches. It was his searches; ing pat all routine and he discov- opinion dealing based on with the state ered that the correctional officers’ union Rights BFOQs Human Commission grievance against practice had filed a approved. clothed searches would not be required because it women to do more proved unpromising, When this solution work than men. The union was threaten- Superintendent implemented disput- ing inequality action unless this in work- policy, giving following explanation ed load was eliminated. why cross-gender searching, op- as to posed only by to searches conducted female attempt In an honorable to extricate him- officers, necessary: currents, Superinten- self from these cross Now, Vail, explored possible Q. you dent Vail solution: the Mr. have indicated BFOQ. (1988). your feelings you 42 U.S.C. 2000e-2 to the court when first § superintendent took over as Betsacon) Q. (By Vail, Mr. Mr. facility regarding security matters

you acronym BFOQ? familiar with the general your idea of the Yes, I A. am. goals you facility. set out for the Q. What is that? explained your specific You have some of occupational qualifica- A. Bona fide assaults, regarding concerns contraband tions. seizures, and increase in those activities. Q. purpose And is the what a bona presume If we were to that this was the occupation qualification? fide take, right pat direction to random way you designate A. can cer- searching as to all the opposed mandato- positions partic- tain in an ry prior your institution for stations existed males, becoming superintendent every- ular sexes. It could be for thing you regarding could be for females. else have done *31 having them. female officers do facility, ion searching at the changing ability to cross-gender does is limits our to that you need have What why do security unpredictability. If this new that element of searching implement to have there, then female officers see the plan? you you might get searched. If know you I Well, to what I it’s similar A. think of the institu- point or some section or in- some if an inmate yesterday, that said officers, you search, just you know where tion is predict who can mates can search, they when can be. they won’t can for them to search, easier it becomes portion of Q. it Does exclude some throughout the institu- move contraband doing these correctional staff from your occasions, I numerous have tion. On searches? living men, example, in a unit on only for begin- A. It excludes the males. shift, two males at the same particular it, issue, I ning as understand was you to move some contra- time. If want lot of female officers that there was a direction, now you know in that band simply doing tired of all the who were time. males them. and the didn’t do point testimony, he was At another They that that was fair or didn’t see specific:

more equitable. implement to Q. Why you need did Q. guidelines you operate by If searching in order to cross-gender pat given action you are on affirmative that security you goal that have achieve this your hiring, many how correctional for the court? outlined performing may be excluded from staff Well, security point from a A. pat random searches? these reasons as view—and there’s other Well, precise if with those A. I was view, point security from a well—but going I’m not to be able numbers—and there’s three if an inmate knows that half— sitting do that here—but over to that of the institu- male officers on side no, just under half would have to do tion, the time to move the then that’s just half not have them and over would expectation, no If there’s contraband. do them. expectation no reasonable having only Superintendent Vail likened search, might pat stopped then officers conduct the searches to female light go gives green them and move. “putting half the officers and flag a red examination, Superintendent On redirect gender for ignore a minute. we assume we Vail remained firm: search; flags red those Those with can Vail, Q. if the not al- Mr. court does the same issue. You without can’t. It’s you implement low coming.” can see them impact pat searching policy, will that utility impossible deny It is security so, your goal, and how? of sur- unpredictability and element Going ago, A. back to 22 hours one of pris- prise efficacy it comes to the when said, things I still—or the first will fully As I more on searches. discuss say correctional officers in a again, that opinion, unpredictability Section VI of officers, facility, all correctional expedient. of this the backbone ability pat search need to have the Superintendent the end Vail’s inmates, unpred- Near so that element of testimony, inquired as the fea- the court might occur is ictability about when sibility solving the warden’s there. BFOQs: problems with

Q. being will not How able cross-gender searching impact on Q. you You indicated had your policy? random search you not sure said made—I’m whether application you made talked to

A. continue with ran- Then would making searches, upon applica- depending where it Mr. Kincheloe about dom BFOQs. employees and un- tion for additional heads with individual *32 everything your answer searches, doing I’m regards pat it A. As There’s lots of issues question, I think. There no it. simply talked about It would make it there. You know. They made had been application. formal improve security. easier. It would institution, got I before at the previously go way I or not Whether decided to understanding is my But best there. and a lot would take a lot of discussion Department cleared the never folks, I still think it of talk with because Human made it to the of Corrections vulnerability there. leaves the window of Rights Commission. acceptance Implicit my analysis is an Well, Mr. Kin- Q. suppose that let’s gender-balanced workforce of cheloe, superiors are your or whoever perform available at WCCW officials they could they thought system, said time, There was a these searches. BFOQs, applied for. if get additional course, guard in custodial when women for more? you apply Would want Now, men were rare or nonexistent. work operation? help your it Would professional these em and women share hypotheticals couple There’s a A. opportunities, as it should be. ployment assuming not involved I’m we’re there. gender, because of No one is excluded in this court ease. Yet, again, it should be. this court as Q. Yeah. ac and this overdue shatters balance effectively forcing twen complishment by give you To the answer— A. BFOQs employer gen and a on an ty-two got Q. You’ve Forget all this. der-integrated union that do not want or problem problem and the other security knowing require them. do so not We you recognize, you’ve indicated system money there is whether may, feel about how the inmates about BFOQs twenty-two or whether women hire your it make life easier this. And would in these difficult may interested who you you your job better and could do fill them. in that area to jobs are available positions? had some more misguided interference with the valu This easier. my make life a lot A. It would opportunities of men and employment able job of could do a better We peculiar char alike is based on women institution, left but we’d be of some — but acteristics all flag The oth- hypothetical red situation. — imprisoned traffickers, murderers, and oth drug my reading of this part of it is that er felons, "ability to the officials’ not on er document, me who and that tells works job." Interna perform the duties out, day day in and I in the institution Controls, Union, UAW v. Johnson tional BFOQs neighborhood of 22 — in the count —, —, it, go accomplish unless I with in order to (1991). generally Do See pat designated searcher procedure of a Rawlinson, 433 U.S. thard the institution all wanders around who (1977) (discussing L.Ed.2d 786 I nothing else. And the time and does secu BFOQs officials with for correctional or func- very that’s realistic don’t think jobs). rity-sensitive tional. implica minimizes the Judge O’Scannlain be a tool that pat employ searches should by the possible lawsuit tions of a employ. So corrections officers work re all at unbalanced ees’ union aimed getting a probably employees. have to look at would of more quirements favor extremely pressed dis- di lot of them. That’s Vail was Superintendent whole When his way go. impetus It would ruptive tough and a to whether the rectly suit," an window. a union this schedule out the was "fear of throw choice suit, was, a union through again. We out of fear of go have to swer "Not would Superintendent hardly find July year in terms of But I did that of this no." the work attempt the staff. to accommodate a new roster for Vail’s putting online their officers and of his female major disruption in the concerns And it causes a Torres v. Wis union to be "wanton." See operation. institution he Servs., in which pat and the manner Health & Social Dep’t consin (7th Cir.1988). implemented practice was unim- these What 859 F.2d 1523 is critical in de- many peached. This observation is one of the concerns illustrate work *33 culpable termining whether he had a state was faced. with which he "constraints" Wilson, by Whitley, of mind as demanded Superintendent Vail’s the end of Near testimony, dis- About his and Hudson. he had testimony, he what was asked made these observations: trict court testimony in to he his meant when referred Now, exception point I to out an want in being as in “a lose/lose situation himself said, I and that’s Mr. Vail. just to what part policy.” of this connection with some very I Mr. Vail to be a credible found position He as follows: described obviously struggling, as I witness. He is I James who A. think it was Jennifer am, trying is problem. with this He support this testified that she would impression got—he I is his—this is the going was to search if it meant someone is trying his best to understand. He extreme of what die. That’s the worst trying right thing for his insti- do day might happen some at that institu- tution, officers, and for his corrections tion, happen because might and it he also for the inmates in it. As indicat- we could to be as everything didn’t do ed, in situation. He can’t he’s a lose-lose we can. secure as somebody anything making do without pole very is The other of that issue testimony, my judgment, mad. His provided by Lindy me real information great he given reflects that has Simons, Woodlock, Day, Carol Gretta thought, deal of has educated himself I have heard in more detail some of what period problem long over a about the court, pose in the that this search does time, basically to me as came across offenders. The diffi- some risk some very very very critical and credible knowing part it is cult about who and important witness, and we will talk about measles, It’s not like the how and what. further, too. you compli- it's can't see it. And further group that I The other of witnesses cated, if at least I understand Ms. Si- credibility regard want to mention correctly, mons the fact that these experts we had here: Medi- may injured prob- folks who the worst cal, psychological, anthropological—is ably won’t it. And those are the— show Other than cor- that a word?—academic. you know, that’s the fundamental balanc- group experts. Many of this rections act, ing go way, one and if I someone testified, people particularly those hurt, may get go way, and if I the other clearly plaintiffs, called were may suppose I get someone else hurt. rights strong for as advocates women’s physical I’ve come down the side rights, other saw those and on the safety. safety opposed as to emotional side, experts were not corrections option, If I there a third would love I problems that Mr. Vail is with. faced to see it. may think those attitudes have colored Vail, Q. you Mr. had considered judgment their some extent. this— added). (Emphasis option THE is to COURT: third have me decide what the constitution B. says, guess. Well, soup. Judge fly There is one

THE WITNESS: that’s—I didn’t Bryan, very judge, say able district did want to that.

conclude, pointed by Judge out O’Scann- lain, “proposed that the random or routine III cross-gender body clothed searches consti- A. pain penolog- tute the infliction of without Superintendent testimony regard- justification, Vail’s and cruel and unusual ical ing Eighth implement punishment his decision to violation respect my To demonstrate about the But with all .conclusions Amendment.” statement, O’Scannlain, meaning Judge Bryan’s I will empha- Bryan Judges Judge Bryan speak let himself: for analysis that resulted from an sized words think; justification initiating inappropriate Eighth in an Amendment for searches, these which is where we turn they represent Why? Because context. analysis; and the Safley Turner v. Judge Bryan’s Fourth Amendment conclu- place conducted, in which it is which of analysis, Safley based on a Turner v. sions prison. course is in the Judge says himself which O’Scannlain again, So these searches are reason- the issue is cruel and un- inapposite when able, question it turns on the quote Judge punishment. I O’Scann- *34 usual interests, penological justification that is opinion: lain from his doing for it. propose use of an- prison officials are relevant in deter- Several factors establishing altogether a other test “First, mining there must that issue. Eighth Amendment. violation of ‘valid, a rational connection’ between the They argue Eighth Amendment legitimate prison regulation gov- and the inmates’ other challenge, like all of the put justify interest ernmental forward assertions, by measured should be my it.” There is no doubt in mind that standard of Turner v. ‘reasonableness’ valid, there is a rational connection Safley, 482 U.S. [107 cross-gender between this desire to do (1987), by the L.Ed.2d rather than 64] legitimate govern- pat searches and the Eighth approach. Amendment traditional pris- security mental interest in the argument. reject this We met that on. So the have defendants why Judge then demonstrates O’Scannlain requirement. first analysis inappropriate, a is and Turner “A factor relevant in determin- second analysis. Essentially, the agree with his prison re- ing the reasonableness of analysis is inconsistent with the Turner is whether there are alterna- striction ... inquiry by Whitley called for exercising right Wilson. tive means of rejects the district Are Judge open prison While O’Scannlain remain inmates.” security available for the approach, respectfully believe he other avenues court’s and the constitutional on the one hand approach the effect such an had overlooks rights inmates on the other. So on the district court’s conclusions. does the question come to the then of judge’s None of is the district fault. the women’s security requirements of job complicat- He did an excellent with this this consti- corrections center overcome case, important in he ed and 1989 when tutional issue? decision, yet had not rendered his Wilson added). (Emphasis Court, Supreme been handed down examine the Judge Bryan went on to and he did not have it to illuminate his whether, record, judg- his and looked Instead, analy- path. he used a method ment, “ample had al- Superintendent Vail need to show sis that does not focus on the his choice of ternatives” to part mind on culpable state of here, my judgment, searches. It is test, applied balancing mea- actor. He analysis punishment unusual the cruel and alternatives, the searches sured appropriate method away veered from the simply and concluded the searches were merging a Fourth analysis by jumped this con- necessary. He from Amendment test. to a second conclusion that clusion penological Judge searches were thus “without no doubt about There can be justification.” approach, This is what he meant when and with it Bryan’s analytical them, Superinten- mind, easy not that to understand he so labelled becomes understanding, the searches 28. With this dent Vail had failed show Conclusion soup. Here fly disappears from the is related to a valid institutional con- were Judge Bryan: picture the whole seen cern. (2d denied, Cir.), cert. Applying these considerations (1973)). I case, deferring to S.Ct. the facts of this concluding. officials to the for so judgment four reasons Constitution, allowed extent First, including cross- practice, its that: court has concluded features, gender does have a valid institu (a) connection be- there is a rational penological purpose: stanch tional proposed tween within an institution flow contraband interests; prisoners of five has been which one out (b) means of there are no alternative killing being, another human convicted free exercising rights of ex- the inmates’ prisoners are there for in which 31% religious freedom unrea- ercise of drug trafficking, in which the AIDS right search and seizure sonable compel purpose present. virus is Such a punish- from cruel and unusual be free ling. Supreme Court reiterated As " conducted; ment these searches Bell, to all other corrections `[C]entral (c) of the inmates’ con- accommodation goals the institutional consideration of impact rights some stitutional will have security within corrections facilities internal *35 " prison of resources. allocation Wolfish, Bell 441 them selves.’ 1861, 1878, alternatives, 520, 546-47, (d) 99 60 ample easy S.Ct. there are U.S. (1979) impose (quoting cost L.Ed.2d Pell v. Procun most of which de minimis 447 817, 2804, Therefore, ier, 94 S.Ct. penological interests. 417 U.S. valid (1974)). though the cross-gender pat searches Even proposed Washington security practice may in this case clash at the Corrections Center concern legitimate unreasonable. with a mental health of for Women are prisoners, the fact remains that is some routine proposed 26. The random or punishment. More gratuitous neither nor cross-gender body clothed searches are over, it and is willful unlawful behavior and therefore violate the unreasonable prisoners pri themselves that is the Constitution Fourth Amendment mary cause of these searches. States. United rules, prisoners they The violate The proposed 27. random or routine clothes, their smuggle contraband under cross-gender body searches clothed are deliberately secrete contraband in they and abridgement of unjustified an the free private parts. In so around their do and religion plaintiffs exercise of those consciously our cultural sensi ing, they use objections religious who have sincere tivity touching each other certain ar cross-gender such contacts. The eas as a shield for their misconduct. proposed routine 28. random or system prisoners’ determination beat cross-gender body clothed searches con- great strip searching necessary is is so pain pe- stitute the without infliction unseemly thwart their behavior. It is an justification, and nological and cruel un- body fact that their but well-known even punishment usual in violation purposes. cavities are used these See Eighth Amendment. 558-560, Bell, 441 generally U.S. at per (body cavity 1884-85 S.Ct. at IV in prison se do not violate the Fourth Now the relevant charac that we know Amendment). things As "think not subject, teristics of our we can return to words," prison life these too are facts of deciding the task of standard of wan which ignored. cannot be applies analysis. my tonness our Second, cross-gender pat judgment, higher it is the standard: because complained pursued ubiquitous conduct of must been searches would become insti WCCW, liciously sadistically practice and for the tutional rather than "ma events, very purpose causing such searches Whitley, harm." isolated because 320-21, (quot upon at at 1085 encroach an identifiable human need U.S. exercise, i.e., Glick, food, ing or men Johnson v. 481 F.2d 1033 such warmth might prisoners’ "con measures being, they be seen as sonable for the own tal well prohibits safety."). ig confinement." Such conditions What a state ditions of ordinarily noring prisoners? are measured the "deliberate such risks to — Wilson, Amendment, course, U.S. yardstick. Eighth indifference" — true, —, at This is points at 111 S.Ct. as DeShaney v. Gamble. out — Estelle Id. however, only prison where "needs at at 1005. 489 U.S. A equally ers not . . . clash with other is superintendent permitted to be delib [do] important governmental responsibilities.erately drugs, weapons, indifferent to — Wilson, —, at . . ." needles hypodermic prison. at (quoting Whitley, S.Ct. at 2326 not suggesting I’m for a moment that a 1084). needs Because the superintendent’s implement failure to ran- governmental responsi here clash with do pat dom searches would con- bilities, as to judgment and because indifference, only stitute deliberate Su- "equally important" rests whether are legitimate. perintendent program Vail’s is Washington my view with State duty yet This another “constraint” fac- Vail, Superintendent the "deliberate ing Superintendent Vail. More inapposite. indifference" standard Third, higher standard of wantonness over, in the these searches are conducted applicable has been held even under cir

positive medical interest inmates’ basic where cumstances no valid institutional designed The searches are to elimi needs. present. in mind concerns I have Hud heroin, alcohol, cocaine, hypodermic nate peno v. McMillian where no valid son needles, weapons, the likes from logical purpose was found in whatsoever presence Their environment. *36 beating unprovoked and gratuitous of a safety a men constitutes health and to cruel prisoner. Yet and demonstrate Thus, designed ace. these searches are to punishment, held that unusual the Court a harmful of confine ameliorate condition prisoner alleging excessive an force ment inimical to human that is other basic more must show than deliberate indiffer inmates, and needs of as free medical such physical well-being; he ence to his must virus, drugs, dom from and as AIDS applied maliciously the force show that obvious, purpose is and it saults. This sadistically. pointed Justice Thomas and pro responsibility to the state’s to relates said, in his he "The this out dissent when people vide a safe environment to with today heightened mental extends the Court special relationship. a A whom it has applied in to all excessive Whitley state knowing dangers to such failure eliminate cases, competing force even where no insti might place from a of confinement attach present." concerns are Hudson v. tutional responsibility civil to the officials who — McMillian, at —, 112 S.Ct. at U.S. a failed to act. the State takes "[W]hen be indeed for 1008. It would anomalous person custody its him there into and holds impose highest to mental ele the law will, against imposes the Constitution gratuitous beatings ment standard where upon corresponding duty assume it a to competing but not where valid insti occur gen responsibility safety some for his implicated.1 concerns are tutional being." Winnebago eral DeShaney well v. Fourth, higher 189, standard wanton Dept., Cty. 489 U.S. 199- Soc. Servs. 200, 1005, designed imple honor and ness was to both L.Ed.2d 249 109 S.Ct. 103 long-standing principle that (1989); Washington Harper, 494 ment see v. " ("Prison be `[p]rison . . . should ac U.S. 1039 ad administrators adop rea in the duty wide-ranging ministrators have . . . to take corded deference [a] probative Judge surely 1. I with assertion is not of a malicious state of take issue O'Scannlain’s opinion emergency in footnote 7 of his that "the absence All the of an does is mind. absence emergency may probative an of whether justifications possible one of eliminate maliciously inflicted or sadisti- force was indeed measures. flaw demonstrates how harsh This logic. cally.” pres- a flaw in There is Superintendent hard one must fit Vail’s strain to emergency may justify mea- ence of an harsh category. mental state into this it, emergency end but the an sures to absence of 1560 Mrs. status. track to second-class policies practices reer and execution

tion Wood, hand, says, “We are all pre to other needed on the judgment in are their discipline and to No less re- workplace.” in equal internal order serve " security.’ Hudson Yale Law institutional than the spected publication maintain — at —, McMillian, 112 S.Ct. at arguing a Note 1985 published Journal 321-322, Whitley, 475 U.S. at (quoting prisoners from segregating female Wolfish, Bell (quoting 106 S.Ct. at the for- counterparts violates their male 520, 547, Rights. R. Her- Equal mer’s Protection (1979))). The district court L.Ed.2d bert, Equal An Protec- Women’s Prisons: it like be the up to sums well what (1985). Evaluation, 94 Yale L.J. tion age: prison in this of a state warden fight pilots and women be combat Shall fight to there has The administration alongside Iraq and Somalia? These men regards problems to these all kinds The issue complex are matters. got fight They’ve security interests. vexing. any most No one takes this case is taxes, money problems, availabil- political strip or pleasure approving budget process with the state. ity, the matter, or, any for that clothed searches contraband, fight violence. They here, procedure. But personally invasive inadequate lev- They’ve got fight staff did his best to make Superintendent Vail occasions, They lots of occasions. els call, up he ends labelled ob- informed overcrowding, fight facility have to re- and likened one and wanton durate ought it may may or be what beasts, member of our court spected public They have to deal with be. brutes, camp concentration and ferocious concepts rights prisoner ought of what guards. gives Harry Truman’s This result being punished. to lose when meaning and a new level of “heat” new consider, They’ve got fight, guess, or matched intensity. When this outcome is it’s question way done else- record, particularly Super- where, we’ve some in this case. as heard testimony, comparison intendent Vail’s this, this, Through Mr. all Vail wrong something is suggests either testified, trying he’s balance while test, misapplied. I re- has been he, too, things, is faced with a these *37 it is the latter. spectfully believe involving conflicting issue women’s rights. view, my majority’s well-inten In neglects the mandate that opinion tioned this Judge claims case arises O’Scannlain freely substitute judge jury nor "neither policy of a “in circum- from formulation officials judgment for that of who their particular are no con- stances where there Whitley, choice." have made a considered decisionmaking straints on the officials’ 1085; see 106 S.Ct. at also 475 U.S. at process____” good friend I read My and Rushen, 779 F.2d 493 v. Grummett Thus, differently. quote I it this record Cir.1985). (9th to This rule of deference fact, points. extensively my to make judgment prison administrators of charged all others the United States like out not fashioned of these matters was nowadays, Superin- running anything to one’s hands of faint-hearted desire wash constraints, engulfed is tendent Vail recognizes dirty The rule business. currents, values, competing labor un- cross simply not reality judges do hard statutes, ions, regulations, ex- government knowledge the skill to run a correc lawsuits, posure personal liability, to not substitute facility. do well to tions We case, differing views of what consti- this judg for the injudiciously judgment our opportunity equal protection for tutes to run of do know how ment those who Judge workplace. Noonan’s women in the prisons, qualified we not make are against Mrs. Wood’s concurrence matched judgments place. in the first these See testimony some of this disso- demonstrates 396, 405, Martinez, 416 U.S. Judge view would re- Procunier nance. Noonan’s (1974) 1800, 1807, 40 224 L.Ed.2d prisons move all men from women’s S.Ct. with the probably relegate ("[C]ourts equipped her are ill to deal Mrs. Wood and ca- increasingly problems regarding administration. inmates urgent of ‘male-on-male Plus, recognition of help Judicial one cannot won- . . . searches.” but healthy more than a impact fact reflects no decision on der what this will have realism."). It is "not wise for . . . sense on felons arrested second-guess expert admin streets of our communities. [courts] on which are better istrators matters Bell, 441 U.S. at

in formed." V Levi, 573 (quoting at 1870 S.Ct. Wolfish lengthy opinion Parts and II of this Cir.1978)). (2d F.2d Superinten provide answer to whether majority’s opinion The interference the "maliciously Vail and his staff acted dent manag- cause with the difficult task of will sadistically very purpose for the WCCW, prisons, not mention ing other Moreover, causing They harm." did not. look no farther than manifest. We need even lesser do believe that under the Judge Bryan’s Superinten- discussion a case standard deliberate indifference this support dent Vail’s “alternatives” punishment of cruel and unusual has been men- By identifying a latent observation. may made. We not favor controversial part previously on the tal health interest just may practice, as some not favor Constitutionally prisoners abused penalty, as to Superintendent death but legitimate security trumps an institution’s only wrong, highly it is not unfair Vail manage- practice, opinion unleashes a to conclude his behavior obdurate nightmare. ment It takes characteris- Even if believe has erred wanton. he projects tics of some and them onto error judgment, it cannot be his said entire class. — good Wilson, "in was not faith." problem only in But the cannot be seen at —, (quoting Whitley, at 2324 Now, group. any terms of individual 1084). 475 U.S. at 106 S.Ct. at prisoner previously or male abused female suggests my under- pat-down Judge sexually is immune from random O’Scannlain in- by person gen- standing searches conducted of “deliberate indifference” pris- prisoner’s respect my abuser. A male col- der firm. With all able by a history may with a of abuse as a child attempt expose oner flaw league, his prisons man—and our full of them— his own error. reveal surely make a will be able to case claim, authority to “It is not is the Where pat-down searches male correc- random enough enacting say before previously A woman tional officers. care- considered an issue prison authorities may by a woman to do abused able enough? Why “Indiffer- fully.”? isn’t points These are made the Wash- same. ence,” itself a definition especially as *38 ington Employees State Corrections Associ- conduct, having means a state of wanton in their intervenor’s brief. What ation way other.” feelings marked one or the “no prisoner claims he about the victimized who UNI- II NEW RIVERSIDE WEBSTER’S private parts cannot his or her or she have ed.1984). (1st VERSITY DICTIONARY regardless gender anyone .touched of “Considering carefully” issue and bas- damage? suffering psychological without on such ing judgment one’s consideration opinion Judge O’Scannlain’s creates the “indifference,” espe- opposite of the seems specter special class untoucha- real a has to be cially when the “indifference” insig- prisoners. they bright wear ble Will “deliberate” to be wanton. clothing their so that will nias on officers Moreover, analysis, Judge O’Scannlain’s exempt security are know claiming (1) “prison are that authorities anyone I practice? that who doubts submit the weight to required to afford sufficient happen prisons. will is unfamiliar with (em- rights individuals” no constitutional Mrs. Wood testified that there were added), (2) that “the failure complaints regard- phasis and inmate at Walla Walla provisions appro- cross-gender searches, constitutional with ing pat treat respect indif- complaints by priate constitutes deliberate unspecified there were them, searches, implementing and in tes- ference,” question way in a loads the “very In tifying the them in court: He was predetermines answer. about improperly am, credible,” these searches as I “obviously struggling, a conclusion that search of unconstitutional, a begins with he is his problem,” trying “he best with this result, prem- the premise understand,” right thing the “trying assures do violate being ise that these searches institution, his for his offi- for corrections right he rights. But is prisoners’ what cers, inmates,” edu- and also “has referring to? He declines to confront problem,” and cated himself about prisoner’s Amendment claim be- Fourth very “came across to me as a credible ... If cause it raises issues that are abstruse. added). do dis- (emphasis We a witness.” right Eighth Amendment’s it is the professional to service to this conscientious punishment, Judge unusual cruel and say he with deliberate indifference acted the finish line before O’Scannlain crosses wantonness or in bad faith. and starts; it be analytical race cannot se, pain per because unless the infliction VI pain wantonly or malicious- is inflicted problems my a with have number prohibition. ly, it no Constitutional violates colleague Judge anal- esteemed Reinhardt’s thought much con- “No matter how ysis and his conclusion that these searches gives superintendent sideration First, giv- the Fourth Amendment. violate ”, O’Scannlain, problem says Judge ... record, understand he en cannot how wrong and superintendent necessarily is proclaim “predictability” can that the con- deliberately Judge thus indifferent Superintendent seems to cern cited Vail agree judg- not his O’Scannlain does with conjectural.” just “highly po- This is a ment This is even conclusion. so way saying Superintendent lite either though superintendent’s judgment ar- credible, judg- is or he Vail not has bad re- thoughtful rived at after consideration Judge Bryan’s findings oral ment. Given case, flects, thorough in this does (1) “very Superintendent Vail was understanding thoughtful weighing and a witness,” (2) “there is no credible A concerned. the interests values my is doubt in mind that there a valid culpable mind now state of in this context rational connection this desire to between judgment considered with includes which pat legiti- do searches and we—judges, not officials—do government mate interest of in the agree. might just It been easier added). (emphasis Judge prison,” Rein- say. evolving stan- these “violate hardt’s observation irreconcilable might decency,” dards of whatever that glosses His the record. observation over view, my In it is an mean. assault on the standard of review we are bound to plain meaning in- of the words “deliberate apply findings. In credibility Anderson difference” and “wanton” to so character- Bessemer, 564, 573-575, ize Superintendent testimony, Vail’s 1504, 1511-12, (1985), so incompatible do with this record. essence, majority opinion imputes Supreme “special Court mandated def- Superintendent state of mind to he Vail findings, citing such erence” to Federal Superintendent does not have: Vail’s mens 52(a): “Findings Rule of Procedure Civil *39 constructively rea to is found be wanton clearly fact shall not be set aside unless relevant de- and obdurate. When the test erroneous, given regard and due be shall pends the the on actual state of mind of opportunity the of trial to judge the court actor, having impute it to him is an credibility the of the witnesses.” Such admission that it does not exist. findings respected by shall be a court of appeals “clearly unless erroneous.” In ex- we have in hands Because our phrase plicating this the said: Court Superintendent of inmates fate Vail’s This reputation, plainly his character standard does not entitle a but also and repeat reviewing finding what the district court said about court to reverse the of conceiving in his behavior of these the trier of simply fact because it place prisoners har- decided the searches of other it would have convinced that simply their It is reviewing bor contraband: bodies. court differently. case wrong Superin- off to write this element of duty oversteps of its under the bounds program If half illusory. tendent Vail’s as 52(a) duplicate if it undertakes to Rule disquali- officials in WCCW are lower the role of the court. conducting necessary fied these at 1511. With all at Id. searches, in- advantage goes Judge Reinhardt’s selective treat- respect, mates, my period. respect, repeat testimony Superintendent of Vail’s ment acceptance gender-balanced of WCCW’s Furthermore, duty. he disregards this workforce. acknowledge or contend with the fails to of this is that in measur- What all means Director Kin- testimony of Mrs. Wood and cross-gender ing objectively searches these cheloe, cross-gender both of whom linked Amendment, under Fourth must we prison security. to enhanced searches Superintendent testimony credit Vail’s simply Judge Reinhardt’s concurrence utility fostering security about their pieces off the board. sweeps these chess WCCW, including importance of their Moreover, Judge lacks a Reinhardt war- so, “unpredictability.” If do is no there the im- “exaggerated” rant to dismiss as principled way we can conclude these Superintendent places portance Vail are without substi- searches unreasonable unpredictable. that for searches need tuting Superintendent judgment our for by the This element has been ventilated The Court in Bell v. coun- Vail’s. Wolfish Palmer, 468 Supreme Court in Hudson v. arrogation sels such an of authori- U.S. ty: (1984), qua as a sine validated virtual have, of in the name the Consti [C]ourts security against of non effective tution, increasingly enmeshed become weapons: contraband prison operations. the minutiae of uncertainty that attends random all, They, no Judges, after are human. of cells renders these searches searches society, have a less than others our perhaps weapon the most of effective their tendency to believe that natural prison administrator in the constant to often intractable solutions individual fight against proliferation knives problems are better and more workable drugs, guns, illicit and other con- persons are actual than those of the who traband____ the run ly charged with and trained in requirement A random even particular under ning examination____ institution pursuant searches be conducted to an range of The wide seriously plan established would under- calls” that meet constitutional “judgment weapon. mine effectiveness of statutory requirements are confided prison- simply naive to It believe outside the Judicial Branch officials decipher any eventually ers would not Government. “planned plan might officials devise Bell, at at 1886. searches,” and able random thus be rou- course, Judge reason, why is a There searches____ tinely anticipate [WJhol- shrug off must Reinhardt’s concurrence ly random searches are essential to “highly Superintendent rationale Vail’s penal institutions. effective We, therefore, stands, testimony If it is conjectural.” accept even cannot concluding a formidable barrier concededly holding limited Court cross-gender these searches are unreason- Appeals. testimony Superintendent able. Vail’s

Palmer, 528-29, 104 S.Ct. at aspect these gives added). Although the (emphasis 3201-02 legitimate penological purpose, Bryan purpose searches under consideration Hudson Judge found *40 cells, prisoners’ principle rationally of connected to were both valid Judge Rein- unpredictability obviously necessary legitimate security so in interest. says, “the applies simply wrong when he equally this environment hardt is (1976) (emphasis n. L.Ed.2d 1116 authorizing prison’s policy of added). not suspicionless searches is to conduct the stated secu- supportable on the basis of certainly correct. This observation this, I juxtapose

rity considerations.” To x-ray Airport magnetometers and machines Finding of Fact No. Judge Bryan’s written checkpoints absolutely sobriety are not 17: piracy air indispensable to combat per not driving, but this se does drunk

17. is a rational connection be- There unreasonable. render them Department of Corrections tween the do and routine interest to random [sic] Moreover, Finding Judge Bryan’s written legiti- pat and the cross-gender it clear No. 18 makes that Fact security interest of governmental mate simple: are that alternatives not However, the defendants prison. ample There are alternatives claimed, but did not and their witnesses searches, which will prove, cross-gender searches were security of the institution meet the needs security necessary for internal at unpredictable to conduct random and Center Washington Corrections conduct body searches inmates Women, added). (emphasis mandatory certain locations. searches at achieving legiti- Alternative means of essentially Judge Reinhardt echoes goals of the administration mate Judge Judge Bryan’s and O’Scannlain’s include: not statements that these searches are post

“necessary,” citing preliminary injunc- Adjusting corrections officers’ supposed proof scheduling tion conditions WCCW Setting question of his claim. aside job officers’ Adjusting corrections (and predict- alleged prisoners’ whether the responsibilities able) relevant, post-filing behavior duties Adjusting corrections officers’ problem that the Fourth test is equalize work load Amendment bans searches which are un- bargaining Adjusting collective reasonable, those not which unneces- agreement sary. “Necessary” “absolutely re- means Permitting male officers to decide sequitur non quired, indispensable.” It is a having to search and a female whom argue something that is not abso- do the search lutely thereby required is unreasonable. Limiting necessity for an observ- necessary” approach This to the “not er Fourth Amendment It is is troublesome. Adjusting upward the number argument by the similar to an made defen- and routine searches random rejected by Supreme dants and Court Seeking Occupational Bona Fide v. Martinez-Fuerte: United States correction of- Qualifications for certain length argue The defendants positions ficer public maintaining interest check- Using magnetometers more points is less than is asserted Hiring more staff illegal flow of Government because the Keeping population inmate levels immigrants could be reduced means reasonable checkpoint operations. other than As physical Changing the structure legislation they suggest one alternative layout and/or employment prohibiting knowing prisons. Building more women’s illegal The logic aliens. such elabo- If not us minu- argu- rate less-restrictive-alternative this list does enmesh insuperable running a I do know prison, raise barriers tiae of

ments could virtually all search- what the exercise does. powers. and-seizure "special issue falls within the This search Martinez-Fuerte, category gives category, United needs" States greater government to con n. latitude 556-57

1565 weapons prison or rules. searches than would ordi to break This is a duct certain freedom-from, the Fourth narily Amendment. not a freedom-to have under case. Sec operation ond, of a is a by right greatly a State privacy is of dimin circumstances classic case of where in prisoners lawfully ished the case of in "special applies. v. needs" rule Third, problem carcerated as felons. Griffin 873-74, 868, Wisconsin, 107 S.Ct. 483 U.S. by entirely addressed these searches is of 3164, (1987); 3168, 709 also 97 L.Ed.2d see making prisoners of the who choose to Ass’n, Labor Railway Exec. Skinner continue to the rules and break the law 1402, 602, L.Ed.2d 489 U.S. 109 S.Ct. 103 though Fourth, prison. even in this deci (1989) (The government’s interest in 639 governmental sion is best made "the employees engaged of regulating conduct unique understanding officials who have presents special tasks safety-sensitive of, for, and a responsibility limited public justifying departure needs from usual resources, including police a finite number of Bell, requirements.); Fourth Amendment Sitz, 454, of ficers." 496 U.S. at 110 544-60, at 441 U.S. at 1876-85. appropriate at not S.Ct. It is context, "special I this needs" do not view sweep away testimony Kincheloe, Superintendent rationale for Vail’s Wood, conjectural, speculative, and Vail as exaggerat as either searches illusory. especially true in This is view ed, irrational, speculative. Neither did Supreme Court’s statement that Judge determinant is Bryan. The better involved, penal system is state "[w]here say enough not is [he "[i]t has] have, federal courts as we indicated in wrong to be conclusively been shown Martinez, additional reason [Procunier v.] this at 99 S.Ct. at 1882 view." Id. appropriate prison to accord deference to the (quoting v. North Carolina Prison Jones Turner, a 482 U.S. at uthorities." Union, 119, 132, 433 U.S. 97 ers’ Labor If at 2253. officials’ S.Ct. 2532, 2541, (1977)). L.Ed.2d S.Ct. transparent flimsy, is one rationale so quotation from Hudson Palmer I they stick to it? conclude why wonders began opinion puts with this all of which they so from this do because record this in context. they they good right. faith are believe The most difficult and treacherous as I close this discussion with observa- pect knowing weight of this case is what If searches are unreason- tion: these give "subjective intrusion" cross- able, pass muster as reasonable they gender aspect these searches have will contraband, they surely searches control Judge prisoners. on some Both O’Scann punish- and unusual do not constitute cruel Judge exposed lain and Reinhardt have ment. skill, aspect great and it is the issue degree "subjective clear intru that the experience prisoners

sion" these women VII being a result searched philosophy. for borrow judicial Now something to be considered. Mar See thoughts directly from Professor some tinez-Fuerte, at at 428 U.S. Philip Kurland: 3083; Dept. Michigan State Police v. versus restraint issue of discretion 451-55, Sitz, [T]he heart of goes very to the constitutional- (1990). 2486-87, bal 110 L.Ed.2d On For the essence of constitu- ism. it is of ance, deliberation, I and after considerable government—not ex- tionalism that all of the prison come down on the side ex cepting to be contained the courts—is perts. I do so for a combination of reasons The Justices principles. established opinion. First, previously in this discussed they espousing are the the notion right against unreasonable higher creatures law and not positive right not a like those included indulging myth so creators it are not practice the First Amendment. Unlike the confronting para- much as religion, example, prisoners democracy. right implicit in constitutional possess no all to dox contraband *42 1566 608-09, 323 described, 47 L.Ed. so if not paradox has been

The (1903). labeled, by Charles Mcllwain: constitution respectfully a written dissent.

We live under juris- things under some which classifies WALLACE, Judge, dissenting: Chief fundamentals, diction, and thus legal as protection of the the puts them under would, judgment, be far better my It courts, to other matters it leaves while men cross-gender searches on permit to posi- organs of the of the free physical discretion prisoners which involve or women The dis- government it has created. prisoner viewing. tive or contact unclothed juris- misguided hope of these matters between it policy tribution and is believe made so Nevertheless, deter- gubernaculum, changed. and diction will be in constant many years ago, is of Our political course is for branches. mination the branch, by or by interpretation role, independent separate need of revision a and as may that the amendment; it also be when vio- proscribe and to such actions is too is is not the of amendment somewhat of the That mode lative Constitution. inter- Judge exposi- for the best here. Trott’s detailed slow and cumbersome case all____ fascinating panel long only confirms the and tion of the record ests of balancing the inmates cannot story jurisdiction majority’s conclusion: be, acted prison if we officials ... establish that gubernaculum and shoüld mind, sustain necessary to open an of with wantonness study it with could maintaining Eighth claim. See Jordan Amendment help adjusting some Gardner, n. 3 1142-44 & 953 F.2d today balance of will the delicate Cir.1992). (9th law, poli- practical problem the central ages. past now it has been in all tics as Judge Trott’s dis- merely join I would ele- fundamental correlative two Judge sent, acceptance of but for his tacit all for which ments of constitutionalism the Fourth Amend- analysis Reinhardt’s liberty yet fight must lovers of question. That I cannot do and write ment arbitrary power a com- legal limits why. separately explain political govern- plete responsibility of apply the Judge purports to Reinhardt governed. ment set forth in Turner v. analysis four factor Kurland, Politics, Philip B. the Constitu- 78, 89-91, 482 Safley, (1970) 8-9 tion the Warren Court 2261-62, (1987) {Turner). 96 L.Ed.2d Mcllwain, (quoting Charles Constitution- adopts balancing a test consistently Yet he (rev. and Modem 145-46 alism: Ancient strength approach: weighing 1947)). ed. justifications for officials’ and harmfulness showing against and unusual invasiveness Absent a cruel See, prisoners. e.g., unreason- of the searches to the punishment or searches that are (“we at must able, Concurrence jurisdiction our under the Constitu- Reinhardt need use male managing prison’s whether the fails. The matter of ask tion body guards to conduct the searches—to question gubernaculum. need exists—out- straying the extent that such Holmes warned Justice resulting weighs injury exer- must constitutional over this line: “While courts intrusion”); own, no judgment cise a of their invasiveness adjust- (“requiring] slight every is void which id. at means true that law guards’ is a upon it work schedules ... may judges pass seem the who ment end, preservation excessive, for the price pay its small unsuited to ostensible morality inmates’ fundamental constitutional upon conceptions of based (“minor adjustments ... they disagree. rights”); latitude id. which Considerable require are of view as the use of female would must be allowed for differences peculiar relatively insignificant, both in themselves possible conditions well against the imperfectly, weighed when constitution- which this court can know (“While stake”); Parker, id. at all.” al interests at Otis v. balancing Fourth Amendment test does not supporting penological interest prison’s Harper. survive Turner and minor, impact cross- regulation is inmates’ constitu- on the gender searches Although Turner does not authorize *43 substantial”); at 1540 rights id. tional is test, balancing require neither does it us to has (“the superintendent interests that the ignore sufficiency either the of the reason sig- They are are insubstantial. advanced prison policy or the effect of that for a poli- outweighed by the harm nificantly policy on inmates. The first and fourth injury and the inflicts on the inmates cy factors, particular, require con- Turner rights”). does to their constitutional justification for and sideration of both challenged policy. the effects of a search not authorize such balanc- Turner does Turner, 89-90, at 107 at 482 U.S. S.Ct. See justifies four factors ing. None of the highly 2261-62. A invasive search constitutionality of evaluating court than a less inva- that is no more effective weighing its effects on prison policy by may pass muster under sive one well against institutional interests prisoners require does not or Turner. What Turner balancing Judge Reinhardt’s it serves. permit judge injury for a to look at the is departure from the deferential test is inmates, hand, the one and the benefit on analysis prescribed by Turner. other, administration, prison on the and balancing ap test support important, say one or that one is more on Bell v. Judge Reinhardt relies proach, respect, weightier, worthy or more or 520, 559, Wolfish, 441 U.S. whatever. (1979) (Bell), which Judge Trott’s I am also troubled that pris balancing test in explicitly mandated a analysis only inciden Fourth Amendment step by justifies He on search cases. Instead, he seems tally refers to Turner. declaring: guidance derive as to how "We balancing ap accept Judge Reinhardt’s applied in Turner factors are to be result. proach, only to reach a different search’ cases from Bell v. `unreasonable is clear that the Judge Trott states that "it at 1540. Reinhardt Concurrence Wolfish." `subjective intrusion’ these wom degree of However, It is true that Turner cites Bell. being experience as a result prisoners en portion of Bell relies Turner something by male searched addressed inmates’ First Amendment balance, after con On be considered. any way rely Turner does not claims. deliberation, down on the I come siderable balancing on Bell’s Fourth Amendment experts." Trott Dissent prison side 87-90, Turner, 482 at approach. See omitted). (citations He cites Unit at 1565 2260-62, Bell, 441 U.S. citing 107 at S.Ct. Martinez-Fuerte, ed States 550-51, (upholding pris 99 at 1880 S.Ct. 3074, 3083, 543, 558, 49 L.Ed.2d S.Ct. receipt of hardback on restrictions on (1976), Michigan Department response as "a rational books inmates 451-55, Sitz, 496 U.S. Police v. State to an obvious by prison officials 2481, 2486-87, 110 L.Ed.2d Bell, 441 citing U.S. at problem"), but not (1990), analysis. But support of this balancing 558-60, (using 1884-85 99 S.Ct. at search are vehicle both Martinez Sitz Amendment est to evaluate Fourth case, t prisoner search This is a cases. claims). Harper, prisoner cases under Turner differently. analyzed 210, are Harper, 494 U.S. Washington v. 1028, 1037, L.Ed.2d 178 momentary Judge Trott’s Aside from (1990), four fac- instructed that Turner’s Judge Reinhardt’s rejecting lapse in not “the analysis applied whenever tor analysis, Fourth Amendment incorrect implicate administration needs panel to the join in his dissent and adhere rights.” None of the Turner constitutional majority opinion. authorizes courts to balance factors needs

officials’ institutional prisoners

“subjective intrusion” on entailed policies. It is clear that Bell’s

by prison