- Associated Press - Wednesday, September 17, 2014

RICHMOND, Va. (AP) - A federal appeals court heard arguments Wednesday on whether jailers should be allowed to strip search people who are arrested but still awaiting arraignment.

The cases out of West Virginia and Maryland pit individual privacy rights against the security needs of jails. A decision by the three-judge panel of the 4th U.S. Circuit Court of Appeals, which conducted back-to-back hearings on the issue, is expected in a few weeks.

Both lawsuits were filed before the U.S. Supreme Court’s 2012 ruling that jailers may perform invasive strip searches on people arrested even for minor offense. However, plaintiffs’ attorneys said that 5-4 decision dealt with a person who was placed in the general jail population after arraignment. They also pointed to concurring opinions by two justices who questioned whether the ruling in the New Jersey case should apply to detainees held apart from other inmates.

But appeals court Judge J. Harvie Wilkinson III noted that those two justices ultimately joined in a majority opinion that discussed at length the discretion that should be afforded correctional officers, the difficulty in classifying inmates and the dangers posed by contraband smuggled into jails.

“I worry that if we go too far in your direction, we leave people vulnerable and exposed,” Wilkinson told Elmer Robert Keach III, attorney for two men who unsuccessfully sued the West Virginia Regional Jail and Correctional Facility Authority after they were strip-searched and subjected to genital delousing.

David Mincer, attorney for the regional jails, said jailers have a virtually unlimited right to conduct strip searches - including visual body cavity searches - because it’s almost a certainty that anyone arrested will be detained with other inmates.

“In our system, there is not the potential for a detainee to be isolated,” he said.

Keach said he shares the concern about contraband, but blanket strip searches go too far.

“This case has caused me to have caution about sending my children to college in West Virginia, that’s for sure,” he said.

The Maryland case also challenged the strip searches of people arrested on minor charges and detained in an area separate from the general jail population. A judge ruled in favor of Baltimore officials, including the warden of the Baltimore Central Booking and Intake Center.

Barrett S. Litt, attorney for the plaintiffs, noted that detainees are booked on a floor separate from the general jail population. He said court precedent at the time the lawsuit was filed prohibited strip searches when a person is arrested on a minor charge and there is no “reasonable suspicion” that the detainee has contraband.

William F. Brockman of the Maryland attorney general’s office argued that the prevailing law at the time was not clear, which is why the Supreme Court took the New Jersey case.

He also said “reasonable suspicion” is not a workable distinction in a booking facility that processes up to 400 people some days.

Appeals court Judge James A. Wynn suggested something more important than workplace convenience is at stake.

“We’re talking constitutional rights here,” he said.

Copyright © 2019 The Washington Times, LLC.

The Washington Times Comment Policy

The Washington Times welcomes your comments on Spot.im, our third-party provider. Please read our Comment Policy before commenting.


Click to Read More and View Comments

Click to Hide