Sotomayor Strip-Search Opinion Offers Clue to Her Civil Rights Stance

Last week, while President Obama was vetting her credentials out of the Oval Office, Judge Sonia Sotomayor firmly dissented from her appeals court colleagues on a case that -- while it surely won't be considered a landmark ruling in the vein of saving Major League Baseball -- suggests her approach to civil rights.

The case involved procedures for a clothing exchange -- in which inmates trade their civilian clothes for prison garb -- in a county jail upstate. At issue was whether prison guards who watched inmates undressing during the clothing exchange, in violation of jail policy, were conducting an unwarranted search and therefore violating the prisoner's Fourth Amendment rights.

According to the county sheriff, the prison protocol, though unwritten, was that prisoners would change clothes behind a half-wall, where they would not be exposed to corrections officers, who were only allowed to look at them undressing or strip-search them if the officers had reasonable cause for suspicion that the prisoners were concealing weapons, drugs, or another form of contraband. Under written procedures, strip-searches were prohibited from being conducted routinely.

In 2002 and 2003, two men who'd been arrested for misdemeanors (one for drunk driving, the other for violating a child support order) went through a clothing exchange and were told by jail guards that they had to get undressed in front of them. One man testified that he asked: "Do I have to do this here?" and that the officer answered: "Yes, you do." Though they were not searched or touched, the men testified that the officers looked them up and down and saw their genitals. Testimony from another corrections officer confirmed that watching inmates get undressed was a routine occurrence at the jail.

The two men argued that this constituted a strip search, something that the original district court, located in Schoharie County, affirmed. The county sheriff, who was sued along with the county and the jail administrator, argued that it didn't.

The big issue to be resolved in the case was whether watching someone undressing counted as a violation of the Fourth Amendment right to be protected from unreasonable search and seizure. The case also raised the question of whether what the officers did qualified as a command.

Sotomayor's colleagues on the Second Circuit Court of Appeals threw out the district court's decision and ruled that "briefly 'seeing' a man's genitals during a clothing exchange does not amount to a strip search." The judges continued: "Moreover, it seems to us that a clothing exchange observed by corrections officers under the circumstances described by plaintiffs is related to maintaining institutional security and preserving internal order and discipline, essential goals that may require limitation or retraction of the retained constitutional rights of both convicted prisoners and pretrial detainees."

Judge Sotomayor disagreed. In a lone dissenting opinion, her language was firm and unflowery: "Under a correct analysis of this case," she wrote, "we would be presented with the following question: During the relevant time period, did our clearly established precedent interpreting the Fourth Amendment permit arrestees for misdemeanors to be forced to expose their private parts to corrections officers and inmates without reasonable suspicion? The answer is 'no.' Accordingly, the judgment of the district court should be affirmed."

Sotomayor chastised her colleagues, saying that the appeals court has wrongly gone over the head of the district court. She said her colleagues' decision amounted to a belief that that two men who were forced to strip naked and have their bodies inspected actually "volunteered" to do that, simply because they had an option of going behind the half-wall.

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