[Sidebar] March 23 - 30, 2000


Personal violations

Why is Rhode Island still strip-searching people who are arrested for misdemeanors?

by Jim Taricani

Thomas Kelly

Late one frigid night last December, Mary Doe (not her real name) was driving on Route 146 near the I-95 split when she hit a patch of black ice and her car crashed into a barrier. When the police responded, they found she was not injured and no one else was involved in the accident. But when the officers ran the obligatory license check, they discovered Mary Doe was the subject of an outstanding seven-year-old arrest warrant for an overdue court fine of $85 -- a misdemeanor under Rhode Island law. To her
surprise, the officers told her to get into the back seat of their cruiser.

Mary, a 32-year-old administrative assistant at a networking company, thought she was "going for a ride downtown" so she could write a check for the overdue court fine. But as the cruiser traveled south on I-95 toward Cranston, the Providence woman realized something was amiss. Her nightmare, like thousands of other Rhode Islanders who have been arrested on misdemeanor charges, was about to begin.

The squad car pulled up to the entrance of the intake center at the Adult Correctional Institutions, the portion of the state prison where pre-trial detainees are kept. "Oh my God," Mary exclaimed.

The cops took her from the car, handcuffed her and escorted her into the prison as if they were handling Charles Manson. Mary said the cops never told the guards what she was there for, nor would they have cared. That's because the ACI's standard policy is that everyone hauled in, regardless of the reason, is strip-searched. The only caveats, according to a policy manual, are that these searches "will never be done for punitive purposes or as a form of harassment."

Mary was told to undress. After she removed her blouse and slacks, she says, one of the correctional officers commented sarcastically, "What the hell are those," referring to her underwear. Mary was scared out of her wits. The next bit of humiliation came when she was forced to take a shower while two female officers watched. She was forced to give blood (to check for disease, said the guards) and placed in a cellblock.

When morning and the time for a court appearance came a few hours later, Mary was strip-searched in a hallway where any passerby could see her. She had to remove all her clothing, piece by piece, while a female guard checked every crevice in her body. Mary was then told, "spread your cheeks," after being ordered to turn around and bend over. She pulled on her buttocks, but, she says, apparently the guard wasn't satisfied. "That's the worst one I've seen all day," she remembers the guard saying. The prisoner -- whose criminal record consisted solely of an unpaid $85 fine for driving with a suspended license in 1993 -- was not spreading her cheeks wide enough.

"It was the most degrading, humiliating experience I've ever had," Mary says, choking back tears. After providing the requested improved view of her anal cavity, Mary was brought to district court in Providence. She says that when she went before the judge, he took one look at the seven-year-old arrest warrant for a misdemeanor, proclaimed, "This sure is an old one," ordered the warrant thrown out and dismissed a $100 warrant fee. Mary left the courthouse devastated.

Ruling that they constitute a violation of an individual's Fourth Amendment rights, federal courts in 10 separate districts across the US have banned blanket strip searches for people who are arrested on misdemeanor charges. In 1985, Arlene Violet, then Rhode Island's attorney general, issued a memo that ordered every police department in the state to not strip search those arrested for misdemeanors. But despite all this, the strip-searching policy at the ACI continues unabated.

Thomas Kelly is a Newport lawyer who takes on a lot of civil rights cases. His passion for fighting for citizens' constitutional rights is akin to that of William Kunstler, the late famed constitutional lawyer. Kelly is on a crusade to bring the ACI's strip-search policy into line with the Constitution. But for now at least, he's hitting a proverbial stone wall.

Kelly, who in May 1999 filed a lawsuit in US District Court in Providence to challenge the ACI's strip-search policy, has deposed A.T. Wall, the new director of the state Department of Corrections, and he's written to Attorney General Sheldon Whitehouse. Kelly has shown them all the federal court rulings and how the US Supreme Court, on four separate occasions, has refused to even consider appeals of the lower court rulings. He's told the state officials about other states and counties that have had to pay millions of dollars in settlements to people who have been illegally strip-searched for misdemeanor arrests.

In the face of this information, the state officials aren't budging. Even though Wall has a Yale law degree and is a longtime prison official, he (and his predecessor, George A. Vose Jr.) repeatedly told Kelly in a deposition that, prior to May 1999, they were unaware of various federal court decisions banning blanket strip-search policies. Spokesmen for Wall and Whitehouse say they can't comment because of Kelly's pending lawsuit.

"They've feigned ignorance of all the court decisions and they've done absolutely nothing," says Kelly, barely hiding his frustration. But the lawyer, rather than retreating, is stepping up his attack on what he calls the ACI's unconstitutional strip-search policy.

Kelly has added a big gun to his team, a Louisville lawyer named Greg Bolzle, who in 1998, following an 11-year battle, won an $11 million judgment on behalf of thousands of people in Kentucky who were illegally strip-searched after being arrested on misdemeanor charges. Bolzle, who has traveled to Rhode Island to confer with Kelly, says the ACI's policy is clearly unconstitutional, and he can't understand why state officials won't abolish it.

"You subject citizens to what the courts recognized as the most degrading humiliating type of search to which you can be subjected, and it's unconscionable," Bolzle says.

Governor Lincoln Almond and ACI officials say the federal court rulings banning strip searches for misdemeanor arrests don't apply here because Rhode Island is "unique" -- since it has no county jails, people who are arrested are taken to a high-security state prison and must thereby be strip-searched.

But Kelly and Bolzle say that's nonsense, and they've got a federal court ruling to back them up, the case of Walsh vs. the City of Burlington and the State of Vermont. David Walsh was arrested for failing to appear in court to pay unpaid parking tickets, a misdemeanor. Courts were closed at the time of his 9:45 p.m. arrest, and Burlington police procedures mandated that Walsh be brought to Vermont's state prison. Once there, he was strip-searched.

In Walsh's subsequent federal lawsuit, Vermont officials, like those in Rhode Island, argued that the strip search was legal because of the "unique" nature of the high-security state prison. But ruling in Walsh's favor, US District Court Judge Francis Billings Jr. cited a Second Circuit Court of Appeals ruling that banned strip searches of people arrested for misdemeanors. "The 'unique' nature of Vermont's state prison does not legally distinguish it," Billings indicated, from the Fourth Amendment ban on strip searches for minor crimes.

Elsewhere around the country, states have been forced to pay millions of dollars to people who were strip-searched after being arrested on misdemeanor charges. In New York City, according the New York Times, Mayor Rudolph Giuliani conceded that some 63,000 people have been illegally strip-searched in city jails. Giuliani has already promised to make restitution.

As a result of his research, Kelly estimates that about 6000 people who were arrested for misdemeanors have been illegally strip-searched at the ACI during the last three years. Kelly responded by trying to file a class-action suit, but it was rejected because he didn't have enough complainants. Now, however, that's changing.

Craig Roberts

Last month, as part of the investigative team of WJAR-TV (Channel 10), I broadcast a report, featuring Kelly and Craig Roberts of Newport, on the ACI's strip-search policy. A hotline was established for people who believe they have been victims of an illegal search, and that number was displayed at the end of the report. Kelly says he has since received more than 40 phone calls, including about 25 from people who have been strip-searched after misdemeanor arrests, and many have agreed to join the lawsuit.

Roberts, a full-blooded Cherokee Indian, first came to Kelly because he believed that he'd been wrongfully arrested. In April 1999, while Roberts was riding in a friend's car in Newport, a state trooper pulled them over. His friend had expired date tags on his license plate. The trooper asked both passengers for their identification, and he radioed in for a standard license check. In the meantime, Roberts' friend found his new date tags in his glove compartment. The trooper let them go, but stopped them again a minute later.

This time, the trooper told Roberts to get out of the car and said him he was the subject of an outstanding family court arrest warrant for failure to pay child support. Roberts produced a copy of a family court order showing he had resolved the matter and that the arrest warrant was no longer valid. A family court judge even told Roberts to keep a copy of the order in his pocket, in case he ever got stopped by police. But the state trooper wasn't convinced, and brought Roberts to the ACI. Craig Roberts has no criminal record. He makes doll houses for a living.

Roberts was strip-searched when he entered the prison and then again when he left ACI the next morning to go to family court. While waiting at the courthouse holding cell, a guard took one look at his court order negating the arrest warrant, and showed Roberts the door without even bringing him to a judge.

"They pointed down the sidewalk and said, `There's a bus stop there,' " Roberts recalls. Angered by the arrest, he just felt the strip search was part of the routine. But when he hired Kelly and told his story, Kelly told Roberts to forget about the wrongful arrest. Instead, Kelly filed a lawsuit in US District Court in Providence charging that Roberts's Fourth Amendment rights were violated.

Steve Brown, executive director of the Rhode Island chapter of the American Civil Liberties Union, says the ACI's policy of strip-searching people arrested for misdemeanor charges is "most likely" unconstitutional. He says the courts have ruled that the only time a person charged with a misdemeanor can be strip-searched is when there is a "reasonable belief" that the person is carrying a concealed weapon or drugs. Courts have indicated it's not enough, Brown says, for guards to just "say they felt the person was dangerous. There have to be other factors involved."

Brown and Kelly are also troubled by a video that was used at the ACI to train guards on how to strip-search prisoners. The video, produced by a Midwestern company, shows a guard strip searching a man. The man's face is electronically distorted and most of his body, especially the genitals, are hidden from the camera. The search takes about two or three minutes. But when a female prisoners is strip-searched, by a female guard, the subject undresses in full view of the camera, and her breasts and vagina area exposed. Unlike her male counterpart, the nude woman is shown bending over when the guard checks her anal area. And the woman, who remains on display for nearly 15 minutes during the training video, is shown getting dressed, slowly putting her bra, panties and clothing back on.

"I was appalled by the blatant sexism and even voyeurism of this particular training film," Brown wrote in a letter to Department of Correction Officials after viewing the video. A department spokesman says the video is no longer in use and that a new one will be produced.

Kelly, meanwhile, is continuing his fight. He says he won't give up until the strip search policy at the state prison is changed. Based on other rulings across the country, Kelly predicts the state might ultimately have to pay millions of dollars in damages to people whose Fourth Amendment rights have been violated. The protection against unreasonable search "can only be deprived if the state's got reason to treat me like that," he says. "And if I'm picked up because I didn't pay a parking ticket, they simply cannot cross that threshold."

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