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Friday, June 22, 2012

FOURTH AMENDMENT WINS AGAIN, AS FEDERAL JUDGE FINDS STRIP SEARCHING OF JUVENILES DETAINED FOR NON VIOLENT OFFENSES ARE UNCONSTITUTIONAL ABSENT PARTICULARIZED SUSPICION OF ILLEGAL ACTIVITY.

Juvenile jail's strip search of Perry County teens ruled unconstitutional
By Jennifer Hewlett

A federal judge has ruled that a Kentucky juvenile detention center's screening of two Perry County teen half-siblings while they were naked was unconstitutional under the Fourth Amendment of the U.S. Constitution, which guards against unreasonable search and seizure.

U.S. Senior District Judge Karl S. Forester made the ruling June 14 in a 23-page document that also addresses other legal issues in the case, which stems from the intake screenings of the two juveniles at the Breathitt Regional Juvenile Detention Center in 2009. The teens were jailed after being charged with underage drinking, charges that were later dismissed.

The parents of the Perry County teens filed suit against the two jail guards who conducted the screenings, Mitchell Gabbard and Rebecca Harvey; the director, superintendent and assistant superintendent of the Breathitt facility — Gary Sewell, Gary Drake and Jeff Voyles; then-Kentucky Department of Juvenile Justice commissioner J. Ronald Haws; and then-deputy state juvenile justice commissioner A. Hasan Davis.

Forester said that since at least 2004 in the U.S. Sixth Judicial Circuit "unclothed visual observation of a juvenile accused of a non-violent offense violates the Fourth Amendment in the absence of individualized reasonable suspicion of possession of contraband."

The judge said that not only were the searches of the teens — a girl, 14, and a boy, 15 — while they were naked unconstitutional, but a state juvenile justice department blanket policy to screen all juveniles while unclothed when brought into facilities overseen by the department was unconstitutional as well. (The department's policy was changed and refined — it now calls for youths to be wearing state-issued garments while being screened by guards — before Forester issued his ruling.)

Forester said the jail guards and Breathitt detention center and state officials were not eligible for qualified immunity as officials as to the plaintiffs' Fourth Amendment claims. The defendants have filed notice that they are appealing Forester's decision to the U.S. Sixth Circuit Court of Appeals.

The case was scheduled to go to trial in September, but, in light of the notice of appeal, Forester has suspended the trial date.

"We're elated at the ruling by Judge Forester that the strip search of these juveniles is unconstitutional under the Fourth Amendment," said Lexington attorney Joe Childers, who represents the teens' parents. "The ruling is important not just for my clients, but for all juveniles who might be arrested for minor offenses in the state."

Stacy Floden, spokeswoman for the state Department of Juvenile Justice, said the department had no comment due to ongoing litigation.

At the time the Perry teens were arrested, the state juvenile justice department had a policy of screening all detainees while unclothed during their intake at facilities overseen by the department. Those intake screenings were done to check for signs of illness, injury, abuse or neglect. The department also had a policy for what it called "strip searches," which required a reasonable suspicion of contraband, including illegal drugs and weapons, and prior approval from a high-ranking official at a detention facility before such searches could be done.

Forester said that the defendants have said that the purpose of the searches of the Perry County half-siblings was not to discover contraband, but to document obvious signs of injury, illness, infection or abuse. The judge said that neither of the guards at the Breathitt facility was medically qualified to identify infection or disease. The teens "were subjected to the strip search without regard to the need to articulate any reasonable suspicion that they may have any underlying medical condition or injury," the judge also said. Forester said the state juvenile justice department's "body ID" process policy circumvented its reasonable suspicion and prior approval requirements.

"Simply put, the reasons for performing the intake strip search at BRJDC simply do not justify the serious invasion of personal privacy suffered by the juvenile plaintiffs," Forester said.

The lawsuit was initially filed in Breathitt Circuit Court, but was moved to U.S. District Court in Lexington.

The Perry County half-siblings, identified in court documents only by their initials, K.S. and J.S., were arrested and charged with underage drinking by Hazard city law enforcement officers in June 2009. The youths had been attending a party at a private home in Perry County, following a middle school graduation, according to the lawsuit. The lawsuit indicates that police were called because juveniles at the party were thought to have been drinking alcoholic beverages. Police instructed several of the juvenile party-goers, including the half-siblings, to come outside, and the officers gave them breath analysis tests. About five teens in all were arrested, but the host's mother, who was apparently asleep in a bedroom of the home, was not arrested, according to Childers.

According to the lawsuit, K.S. and J.S. were taken to a hospital for blood-alcohol tests. Then, on orders from Perry County District Judge LeAnn Stephens, they were detained at the Breathitt Regional Juvenile Detention Center.

The teens were fingerprinted, taken to shower areas and instructed to remove all of their clothing. Then the guards visually inspected their nude bodies, according to the suit.

In December, Haws, who has since retired, issued a directive saying that body identification or visual inspections of youths without clothing were not to be conducted at department facilities. The policy change came a day after Forester said in another court document that he thought the body ID process at the Breathitt detention center was unconstitutional.

In April, Davis, now acting juvenile justice department commissioner, issued another directive outlining new procedures for the inspection of youths entering facilities overseen by the department. That directive calls for youths to be wearing state-issued boxer shorts and tank tops while being screened. The directive says that clothing changes are to be done in private, outside of view of staffers, and that youths are to be allowed to shower privately during the procedure.

In April, the U.S. Supreme Court, in a 5-4 decision, said it was constitutionally permissible to strip search adults arrested on minor offenses upon intake at a jail, prison or detention facility, without suspicion of contraband.

"The U.S. Supreme Court has not decided whether juveniles, as opposed to adults, may be strip searched upon intake to a juvenile detention facility when arrested for a minor offense," Childers said. The Perry County case "will permit the courts, first the Sixth Circuit, and possibly the Supreme Court, to clarify whether the rule announced in April . . . applies equally to juveniles," he said.

Read more here: http://www.kentucky.com/2012/06/22/2234346/juvenile-jails-strip-search-of.html#storylink=cpy

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