A Sixth Circuit panel unanimously held last week in Williams v. City of Cleveland that pretrial detainees forced to “undress in the presence of other detainees and to have their naked genitals sprayed with delousing solution” stated a viable claim under § 1983 and the Fourth Amendment. Judge Griffin wrote the opinion in which Judges Siler and Clay joined. The Court’s holding was based on Florence v. Bd. of Chosen Freeholders, 132 S. Ct. 1510 (2012), in which the Supreme Court held—according to Justice Alito, who provided the bare majority with its fifth vote and wrote separately specifically to “emphasize the limits of [the] holding”—that “jail administrators may require all arrestees who are committed to the general population of a jail to undergo visual strip searches not involving physical contact by corrections officers.”
Chiding the district court for “substantially underestimat[ing] the gravity of the intrusion into [the detainees’] privacy,” the Sixth Circuit distinguished the City of Cleveland delousing procedure on two grounds: physical contact and the presence of other inmates. First, the Court held that contact with the spray counted as “physical touching,” noting repeatedly that the spray was allegedly intentionally aimed at detainees’ genitals. Second, the Court held that “[t]he wider an audience for a strip search, the more humiliating it becomes, especially when the stripped individual is exposed to bystanders who do not share the searching officers’ institutional need to view her unclothed.” Given these distinctions, the Court concluded that prisoners had “plausibly alleged” that these two aspects of the procedure were unreasonable, given the allegedly available alternative of permitting detainees to apply delousing solution to themselves without other detainees present. Although the Court reversed the district court’s dismissal of the plaintiffs’ claim, it allowed that, “[i]n the final analysis,” the City might be able to demonstrate the current procedure to be reasonable by providing evidence of “a good reason” for its invasive aspects.
Notably, the Court did not rely in any way on the fact that plaintiffs had been arrested for minor offenses (the named plaintiffs had only ended up in jail due to the suspension of their drivers’ licenses for unpaid fines), even though both Chief Justice Roberts’s and Justice Alito’s concurrences in Florence hinted that lower courts ought to make an exception for such cases. It will be left to the district court on remand to address these and other potential issues.
