Strip-search suit might hinge on prison papers
By CHRIS A. COUROGEN
The Harrisburg Patriot-News
HARRISBURG, Pa. — A lawsuit against Dauphin County for its prison strip searches should be dismissed, attorneys representing the county say.
That’s because the prison has a written policy that spells out when an incoming prisoner should be subjected to such a search.
But that’s not the only prison document that deals with strip searches, attorneys representing the four lead plaintiffs in the case, which was filed after the Labor Day weekend party on McCormicks Island that resulted in the arrest of more than 125 people.
The lawsuit claims the county has an unconstitutional policy of strip-searching every inmate who enters the prison. The attorneys who filed the suit have won multimillion-dollar settlements in four similar cases.
Three of the four lead plaintiffs in the suit are out-of-state residents who were strip-searched at prison after being charged with illegal assembly under a city parks ordinance and failing to post bail. The fourth was subjected to a strip search after being taken to jail for failing to pay parking tickets.
A copy of standing orders for the corrections officers who handle the intake of new prisoners was included in the plaintiffs’ response to the county’s motion to dismiss the lawsuit. At the top of the list of duties for officers assigned to that post are directions that state, “Strip search each inmate checking for contraband and/or injuries.”
When asked if the post orders were the smoking gun in the suit, New York civil rights attorney Elmer Robert Keach said, “It is pretty close to it.” The lawsuit seeks to end the prison’s alleged practice of strip-searching people facing misdemeanor charges.
“This document, combined with Warden [Dominick L.] DeRose’s testimony, certainly confirms many of the allegations of the class-action complaint,” said Keach, the lead attorney in the suit, which has been filed in federal court.
Frank J. Lavery, the Harrisburg attorney leading the county’s defense, did not return calls seeking comment. In court documents, the county’s attorneys agree that most federal courts have ruled such searches are unconstitutional without “individualized justification,” though the Supreme Court has never ruled on the issue.
“In my opinion, the court hearing this case may follow the other cases holding blanket strip-searches to violate the Constitution, but I strongly doubt that such a result would be correct, and I suspect the Supreme Court would hold a blanket strip-search policy applicable to all detainees constitutional,” said Michael R. Dimino Sr., an associate professor at the Widener University School of Law.
At the Dauphin County prison, guards fill out a questionnaire to determine individualized suspicion before conducting strip searches, court documents state. The form was modeled after one prison officials were given at a 1999 lecture by Christopher C. Conner, who now sits on the U.S. District Court for the Middle District of Pennsylvania. The prison case was originally assigned to Conner but was reassigned to Chief Judge Thomas L. Vanaskie because of Conner’s role in developing the prison’s policy.
Seven questions about factors such as appearance and demeanor, history and the nature of the charges the detainee faces are included on the form. An eighth item asks for “any other reasonable suspicion based upon specific circumstances that leads the corrections officer to suspect the detainee is concealing” weapons, evidence or contraband.
The forms for the four lead plaintiffs in the suit all used that eighth factor to justify their searches. Two of the plaintiffs were searched because they had been held with other detainees before being taken to the prison, the documents state. Another was searched because corrections officers claimed she was not searched before being brought to the prison. The fourth claims the “detainee appeared to be hiding contraband,” but gives no justification for that claim.
“That dog won’t hunt,” Keach said. “This catch-all at the end of the form is used to justify strip-searching everybody. For three of the four, the reason given was clearly not reasonable suspicion based on the proper justification.”
Keach wants to find out exactly what made the fourth appear to be hiding contraband when he deposes the guard who did that search.
District Judge Barbara Pianka dismissed the illegal assembly charges against all the partygoers who contested their citations. A separate suit accusing Harrisburg of illegally detaining the out-of-state residents arrested in the McCormicks Island party is expected to be filed soon, Keach said.
Copyright 2008 The Patriot News Co.