>From houstonpress.com
Originally published by Houston Press June 28, 2001
�2001 New Times, Inc. All rights reserved.
http://www.houstonpress.com/issues/2001-06-28/feature.html/page1.html
Naked Shame
Years ago, courts ruled that routine strip searches in jails were
unconstitutional. But for Fort Bend
County women, if you got booked, they took a look.
By Wendy Grossman
Lupe Cantu lay in the back of her brother's Ford Mustang wanting to
throw up. It was Good Friday, so instead of a beef taco,
the 41-year-old Catholic woman ordered El Patio's spicy shrimp
flameados. After a few bites, she had started vomiting in the
restaurant. Cantu asked her brother to stop the car, but he told her to
hang on, they were almost home. But a few minutes later
he pulled over -- a Fort Bend County sheriff's deputy asked her brother
for his driver's license, while Cantu puked on the side
of the Southwest Freeway. Sweating in the closed car, Cantu stretched
out in the backseat while the officer conducted
field-sobriety tests on her brother. Cantu is an office manager for a
cardiologist; she had never been stopped by police before,
and she thought they would soon be on their way.
The officer opened the driver's-side door, told Cantu to get out,
handcuffed her and arrested her for public intoxication. She
had drunk only one margarita and says the officer didn't do any sobriety
tests on her before putting her in the patrol car with
her brother's girlfriend.
Cantu started sobbing. They were a mile from her house in Rosenberg's
Greenwood subdivision. She told the officer if he took
the next exit he could take her home. It was almost midnight, Friday the
13th, when they arrived at the Fort Bend County Jail.
Cantu was ordered to remove her thin silver watch, three rings and six
earrings before she and her brother's girlfriend were
taken into a small freezing-cold room where two female officers ordered
the women to strip.
What? Cantu asked. I'm not taking off my clothes.
Take them off, the officer said. Now.
Cantu's friend removed her shoes, jeans and shirt, stopping at her bra
and panties. The guard told her to remove them too.
Afraid that they'd start beating her if she didn't, Cantu pulled off her
black boots and slowly took off her jeans, yellow
turtleneck sweater and underclothes. The guard ordered the women to
raise their arms and then lift their breasts. "What in the
hell could I hide under a size B-cup bra?" Cantu asks. Next the women
were told to turn around, bend over and spread their
butt cheeks while the guard shone a flashlight on their asses. The
larger officer, Cantu insists, was leering at her like she was
enjoying seeing her naked. The other guard, Cantu says, seemed to feel
sorry for them: She offered to bring the women
breakfast.
Cantu was fingerprinted, photographed and placed in a holding cell until
almost 7 a.m., when her daughter came and paid the
$200 bail to free her. A guard again watched Cantu undress and dress as
she changed back into her street clothes.
Her brother's strip search, Cantu says, was worse. The guards peeled
back the foreskin on his penis to make sure he was
wasn't hiding anything there. "I never, ever, knew that they did that,"
Cantu says. "I thought you go to jail, you make a phone
call, they put you in a cell. It's degrading."
Months later, Cantu's brother still avoids leaving the house. He goes to
work, he comes home, and he sits in his bedroom. He
worries what people he works with and people in the community would
think of him if they knew what happened. He thinks
the cops might have pulled him over because of his Mustang, so he wants
to buy a less sporty car.
Cantu couldn't sleep after the strip search. Her doctor had to prescribe
sleeping pills. By Tuesday, everyone in Rosenberg
knew what had happened to her. She felt embarrassed and humiliated and
didn't talk to her brother's girlfriend for weeks.
Cantu is planning to file a federal civil rights suit for the violation
of her constitutional rights against unreasonable searches; she
has three daughters aged 17 to 22 and says she can't let this happen to
them.
"It just shocks me that something as plainly written as the Fourth
Amendment can be so wildly ignored by law enforcement,"
says her attorney John McDowell.
The county's lawyer, John Zavitsanos, admits that until April, guards
strip-searched all women booked into the jail. Federal
courts have said that officers must have a "reasonable suspicion" to
search people arrested for misdemeanors.
Fort Bend County justifies its actions based on nothing more than the
jail's floor plan. Arrestees are separated by sex, and the
holding cells are situated so men and women cannot see or hear each
other. Since the duty officer, seated in front of the men's
cell, can't see into the women's cell, guards automatically searched
every woman arrested regardless of her charge. They say
they had to make sure all the women didn't have any weapons or
contraband. The county justifies not hiring another guard to
watch the women's cell because it's empty about half the time.
Zavitsanos says all Fort Bend County searches were done by an officer of
the same sex in a windowless room with
12-inch-thick soundproof walls. (Cantu insists there was a small window
in the door and that someone walked in while she
was naked.) "The whole process takes less than five minutes. It's not
filmed, it's not taped, no notes were taken," Zavitsanos
says. "There were no cavity searches, there were no rubber gloves,
there's no touching of any kind."
The search may be "an inconvenience," Zavitsanos says, but he insists
that it wasn't a big deal. "It's not like we're stopping
people on the street and strip-searching them, or making them disrobe in
the back of a paddy wagon," he says.
McDowell says the county was searching all men as well as women. He's
filed two suits against the county and plans to file
about 15 more this month. Most of the cases involved those stopped for
simple DUIs or minor traffic violations that he insists
did not warrant a strip search. His phone continues to ring with more
potential clients.
"I'm sure they will prevail," says Will Harrell, executive director of
the Texas ACLU. "Police have tried to do this around the
country. It's just brute force and bully tactics to intimidate."
Strip searches have always been a part of prison history, says Ray
Sabatine, director of community corrections in Lexington,
Kentucky. He travels the country giving strip-search seminars to county
jails, discussing when they can and cannot be legally
conducted. "People get real upset over not being able to strip-search
[everyone]," Sabatine says. "The courts have said you
can't do it. You just can't do it anymore."
Still, officers argue that blanket strip searches keep jails safe for
inmates; they prevent people from bringing in drugs, knives or
guns. Sabatine has seen arrestees who have syringes stuck up their
asses, or have inserted small pistols in their vaginas.
When drugs get inside jails, prisoners can overdose and die. Sabatine
has had to call parents and say their child died in his jail
from drugs his guards let inside. Sheriffs don't like making those phone
calls, he says, so many started doing blanket strip
searches to make sure contraband didn't get in.
Jails seemed safer, but the law changed in the 1980s when a Utah woman
sued after she was picked up for her husband's
traffic tickets and strip-searched. Six years ago the Fifth Circuit
Court of Appeals upheld a district court in Stewart v.
Lubbock, a Texas case that found it was unconstitutional for both a
woman arrested for public intoxication and another
arrested for writing a bad check to have been strip-searched.
In more and more cases across the country, courts have forbidden
officers from strip-searching people charged with
misdemeanors unless they have a reasonable suspicion that the suspect is
hiding something.
The idea is that a first-time offender isn't planning to be arrested, so
he won't think to hide things on his body, since normally
people don't use their asshole as an extra pocket. "That's why in a
minor offense it's really not justifiable to put them through a
strip search," Sabatine says. But a person who's been out of custody and
knows he has to return might have something he
wants to sneak inside.
Reasonable suspicion is fairly loose and hard to define, making some
cases easier calls than others. For instance, if a person
has repeatedly been charged with carrying a concealed deadly weapon,
it's likely he might have another. Or if a dealer is
arrested for carrying drug paraphernalia, it makes sense that he might
have swallowed or hidden drugs on him. Then there are
trickier situations, e.g., a person may not be strippable based on his
prior record, but he may be suicidal and the jailer has to
take away instruments of suicide. "In most cases that's clothing,"
Sabatine says. "You run into some dilemmas."
Zavitsanos claims the county was in compliance with the state's strip
search policy. "Fort Bend County was not doing this
because they got any great thrill about this; they were doing this
because there [are] clearly defined parameters of what is and is
not acceptable by the Texas Commission on Jail Standards. And they
indicated that until recently, strip searches were part of
the process," Zavitsanos says. "They have done an about-face and now
indicate that strip searches may not be appropriate in
all circumstances."
The commission's policy, he says, changed two months ago; Zavitsanos
reads aloud from a letter that Terry Julian, the
executive director, sent Fort Bend County dated April 17, 2001:
"Although in the past, blanket strip search policies have been
approved in the name of safety and security, it is no longer wise to
continue such a policy."
He says the letter to Sheriff Milton T. Wright Jr. was a "directive" the
commission issued to immediately stop strip searches that
had heretofore been acceptable. When he takes it out of context, it
sounds like Julian was talking about the recent past, but the
commission says its policy hasn't changed in 15 years, and that the
letter was not a directive to stop blanket searches but rather
a reminder that the law says they can't be done.
"Some jails still believed the county jail could strip-search anybody
they wanted to just in the name of security," says
Christopher Medici, research specialist for the commission. "This has
been a refresher in what the law says you can and can't
do."
Medici says that after this spring's media coverage of mass litigation
on unlawful strip searches, he heard that some county jails
in Texas were stripping everyone that walked through the door. That's
why Julian mailed a memo to all 235 counties. "It was a
matter of getting everybody on board," Medici says. "They were doing
strip searches on anybody and everybody they wanted
to."
Zavitsanos claimed privilege on the Julian letter, refusing to release
all but two sentences of it. The Houston Press obtained the
entire document through an open records request. It begins by saying
that recent case law concerning strip search policies at
jails across the country prompted them to issue this "technical
assistance bulletin":
"Federal courts have determined that blanket strip search policies are
unconstitutional -- a violation of unreasonable search and
seizure rights -- when no probable cause for contraband exists. Be aware
that if your staff is routinely strip-searching all
arrestees at intake as a matter of policy, you may be liable in a
lawsuit for violation of arrestees' rights. If, however, there is
reasonable suspicion that weapons, drugs or other contraband is being
concealed on the arrestee's person, there is likely no
violation being committed."
The force of the letter is that jails need to create and follow clear
policies on strip searches to avoid litigation because there's
been an awful lot in the past year alone. Last month New York City's
mayor agreed to pay the largest civil rights settlement in
history: $50 million to about 60,000 New Yorkers who claim they were
unlawfully strip-searched. Many of them were
first-time offenders arrested for minor things like loitering or walking
through the subway turnstile two at a time.
In April a federal judge ruled that the Schenectady Police Department in
New York had an unconstitutional policy of
strip-searching all detainees. That decision came in the case of a man
charged with disorderly conduct; he was forced to
undress, hold his genitals and bend over in front of a female guard. And
Kentucky residents received about $20 million in
settlements after claiming to have been unlawfully strip-searched.
"There were thousands of folks that said they were improperly
strip-searched," Sabatine says. "It's really hard to disprove that
a person was not. Once the litigation starts, it turns into a witch-hunt
with everybody showing up saying they were illegally or
improperly strip-searched. They see a very deep pocket, and they try to
take advantage of it."
Which is what Zavitsanos says is happening in Fort Bend County. He says
there weren't any complaints about strip searches
until word of the juicy New York City settlement hit the newsstands.
McDowell says that is absolutely untrue, his cases were
filed in January -- four months before the New York City settlement.
Regardless, the commission put together a strip search
packet for jailers needing help developing policies. Sent to about a
dozen jails, the packet includes a game-boardlike decision
tree Sabatine created five years ago. It can be posted for step-by-step
help in determining whether a person should or should
not be given more than a pat-down.
In his "risk management" seminar, Sabatine discusses "a continuum of
search" that starts with simply asking people to
voluntarily give up anything they shouldn't have. His jail has a "second
chance box," located behind a screen in the booking
area. It's a standard mailbox (provided by the post office) where
arrestees can drop drugs, razor blades or any contraband
without being charged. Some jails employ more high-tech measures like
X-rays, handheld metal detectors, or "the Boss," a
chair with a metal detector in the seat. Sabatine suggests opaque
privacy screens behind which the prisoners can change
clothes. That way guards can see if someone is sticking something
somewhere they shouldn't, but the person feels less
exposed.
Still, in the last month Sabatine has seen jails trying to circumvent
the law by doing things that aren't technically strip searches,
but involve guards staring at inmates naked. Like ogling people while
they shower or forcing them to get naked and walk
toward them to exchange civilian clothes for prison whites. "Either
they're uninformed or they feel their practice is close enough
to what the law is so they're justified in doing so," Sabatine says.
"They continue to try to grab for reasons to do the search."
On January 20 McDowell and associate Leland Irwin filed the first two
lawsuits against Fort Bend County. Gary McMullen is
a 25-year-old divorced father who was pulled over driving home from a
party. His petition says that after a series of roadside
sobriety tests, McMullen was booked and strip-searched. He wants a jury
trial and compensation for the mental anguish,
emotional pain and torment he has suffered. The notice says he's willing
to settle for $100,000 and will take less if Fort Bend
agrees to change its policy.
The second suit, filed the same day, is for Sabine Andrae, a German-born
woman who's been a U.S. citizen since 1981. She
lives in the Pecan Grove development in Richmond and was shopping at
Wal-Mart when her child was accused of shoplifting.
The Richmond Police Department arrested Andrae (even though she hadn't
done anything) and transferred her to the Fort
Bend sheriff's office, where she was strip-searched.
"Her case was dismissed real quick," says her defense attorney Chad
Ellis. "It was dismissed before we got there." Ellis
referred her case and many others that come to his office to McDowell.
Andrae too is seeking a trial or a $100,000 settlement.
When they responded to the suits in early May, the county claimed
governmental sovereign immunity, saying it cannot be sued.
Officials deny that the plaintiffs were subjected to "an unlawful strip
search."
On June 1 the county filed a motion to dismiss Andrae's case. "Strip
searches have long been held to be constitutionally
permissible," Zavitsanos wrote. He cited the 1976 Supreme Court ruling
Bell v. Wolfish, which created a balancing test
between the need for security and the inmate's constitutional right to
privacy. Specifically, that case says it's okay to
strip-search inmates after they have a contact visit with the outside
world (e.g., a meeting with a lawyer or a loved one) to
make sure they don't bring contraband into the facility.
But that's not what this case is about. No one is contesting searches
after contact visits, and there is a stack of more relevant
federal court rulings that say jails cannot strip-search someone who has
committed only a misdemeanor. The county argues that
a "strip search is a reasonable security measure that is necessary to
discover and/or deter the smuggling of weapons, drugs and
other contraband into an institutional facility."
Frisking people is not enough, Zavitsanos says, because male officers
are afraid of sexual harassment suits. "It's just a fact that
male officers are going to be very reluctant to do a thorough search of
female arrestees because they're concerned that
somebody is going to complain about them, that they're groping them or
harassing them," Zavitsanos says. "What most officers
will do is they'll just pat them around the pocket area or the waist to
make sure the person doesn't have a gun in their pockets.
But that doesn't mean a person is not wearing a gun in their bra, in
their panties or on the thigh."
The fact that the county admits doing the searches surprised McDowell
and his associate. "We thought that their defense was
gonna be that it never happened," says Irwin.
Zavitsanos says that since Andrae was arrested on a charge of
shoplifting, it would make sense to strip-search her because
shoplifters usually hide what they stole. (This same argument was made
in a 1991 case where officers strip-searched people
ac-cused of stealing a ring. The court said the search was not
justifiable.) Zavitsanos plans to file a motion to dismiss
McMullen's suit too.
In short, the county wants to squash these suits, while the prosecution
is still recruiting clients.
Amy Lou Fulwiler, a 58-year-old state prison officer in Sugar Land's
central unit, ate dinner at a friend's house on May 20,
2000; they worked word jumbles and then sat around drinking tea and
talking until about 8:30 p.m. On her way home,
Fulwiler stopped to get gasoline and a Lotto ticket.
Leaving the gas station, she turned right onto Missouri City's FM 2234.
About two blocks later a souped-up white Chevy
Camaro flew by, almost hitting her bumper before swerving into the left
lane. "He was going like dynamite," she says. He shone
a spotlight in her face, she says, then drove off at what seemed like 90
miles per hour.
At the next light, she pulled up behind him, flipped on the interior
light in her '94 Mitsubishi Diamante and started writing down
his license plate. The side of the car said "Constable," but the windows
were tinted and she didn't believe a peace officer would
be driving so erratically -- she thought the car might be stolen. She
says he saw her writing then pulled up behind her and
turned on his flashing lights.
That's when she started getting scared, she says. Very scared. So she
decided to drive to the police station. She flipped on her
turn signal and started to make a left into what she thought was the
Missouri City Police Department (but it had recently
relocated). Just then, she says, another constable came along beside her
and ordered her to pull over, an officer got out of the
Camaro behind her with his gun pointed at her and told her to get out of
the car. "He looked like a juiced-up chicken the way
he was jumping around," she says. "I knew they would break my bones, I
knew they would knock my teeth out -- this man
was crazy."
When she stepped out, she was immediately handcuffed and thrown into the
back of the patrol car where she sat for about an
hour while they searched her car and ran a background check.
They charged her with evading arrest; at the Fort Bend County Jail a big
burly woman ordered Fulwiler to take off her shorts,
T-shirt, bra and panties and did a visual cavity search. The guard told
her to spread her butt cheeks, bend over and cough. "It
was just devastating," Fulwiler says. "Devastating. It was days, months
-- I'm not even sure I'm over it yet."
Many people who have been strip-searched say it has the same effect as
being raped. Someone forced them to take their
clothes off and expose themselves. They feel embarrassed, violated,
vulnerable, humiliated and shamed. Some get headaches
and can't stop reliving the experience in their heads. They have
nightmares or their lives become a nightmare because most
people don't like to get naked (involuntarily) in front of strangers
(especially strangers in police uniforms). Even at the doctor's
office patients are never fully naked.
Fulwiler still has nightmares that she's going to jail, or she wakes up
in the night filled with fear. Every time she gets into her car
she wonders if she's going to be arrested and strip-searched before she
comes home. She says she avoids the road that it
happened on and she tries to avoid at all costs places where "bad cops"
are.
She used to hang out at friends' houses, but now she spends more time at
home. Her garden has flourished, she's planted a lot
of rosebushes, flowering hanging baskets and a bleeding heart.
She labeled her personal information file "The Night from Hell" and her
son, a graduate of Columbia University Law School,
helped her put together a binder about what happened to her that she
sent out to about 60 people: senators, commissioners,
mayors, judges, attorneys and reporters. "I want everybody in the world
to know what happened," she says.
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