A U.S. Marshals Service Detention Security Officer (DSO) recently had a bad day in court. DSO Hilda Short was unable to persuade the court to toss a lawsuit brought against her individually by a Public Defender in the District of Columbia who did not appreciate being partially strip searched by Short in front of a male officer and prisoners. As a result, DSO Short will now have to defend against a Bivens constitutional tort charge. (A lawsuit against a federal employee in his personal capacity.) (Brown v Short, D.D.C. Civil Action No. 08-1509 (RMC), 7/30/10
These facts are taken from the court’s memorandum opinion.
Public Defender Liyah Kaprice Brown got crossways with D.C. Superior Court Judge John H. Bayly, Jr., who ordered Brown be taken into custody. Marshal Service employees took Attorney Brown into custody and spirited her off to the cellblock the Marshal Service maintains in the D.C. Superior Court building.
Attorney Brown alleges that DSO Short performed a “pat-down” and partial strip search of her against the wall across from the holding cells with male prisoners in them and in the presence of a male Deputy Marshal. She further alleges that she cooperated with this search and nothing improper was found. However Short then made Attorney Brown face the wall for a second search.
Ms. Brown alleges that Short raised her clothing, exposing her bare skin and breasts to full view of all who were watching, and touched her improperly, with at least one male prisoner jeering and making “catcalls” referring to Ms. Brown’s body. (Opinion pp. 2-3)
Attorney Brown sued, arguing the search was unreasonable under the Fourth Amendment to the Constitution, citing violations of 42 USC section 1983 and alleging a constitutional tort under the Bivens case. DSO Short is the only remaining defendant in the case and she moved to dismiss. (pp. 1-2)
The court called whether section 1983 can be applied to a federal official purportedly acting under D.C. law a “close question.” (p. 7) Nonetheless the court dismissed this part of Brown’s claim, ruling that DSO Short had been acting as a federal official under federal law and therefore could not be sued under section 1983. (p. 8)
However and more significantly perhaps, the court also held that Attorney Brown may proceed with her Bivens claim against DSO Short. The court found that Short was not shielded by qualified immunity, pointing out, “Qualified immunity ‘shields government officials from liability for civil damages “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” ‘ (p. 8; citations omitted)
The court does not question whether it was reasonable to search Ms. Brown under the circumstances given the importance of not allowing “contraband and weapons” into a holding cell area. (p. 8) What is at issue is the reasonableness of a partial strip search of the attorney under the circumstances. As the court stated, “[I]t becomes clear that DSO Short’s search…was unreasonable and violated Ms. Brown’s Fourth Amendment right to be free from unreasonable searches.” (pp. 10-11)
The court points out that Ms. Brown was not the subject of a criminal arrest, but rather in connection with alleged civil contempt, and her detention was later determined unwarranted. Further, the intrusiveness of the search under these circumstances was not warranted. The judge seemed particularly unhappy with the fact s that it was a strip search conducted in the presence of male prisoners and a male marshal. (pp. 20-22)
Summing up, the court opined, “Thus, it should have been ‘clear to a reasonable [official]’ that a partial strip search of Ms. Brown, a detainee charged only with civil contempt, without individualized suspicion, and without regard to her privacy, would be considered unreasonable….” (p. 22)
Judge Collyer ruled that Attorney Brown will be allowed to pursue her Bivens claim and that DSO Short has no qualified immunity shielding her from that claim. (p. 22)
DSO Short now faces the prospect of a trial with the possibility of a civil judgment against her personally.