Opinion
Case No. 98 C 8225
August 14, 2000
MEMORANDUM OPINION AND ORDER
On September 20, 1998, Karen Leinen was arrested by Elgin Police Officer Lawrence Jenco for allegedly driving under the influence of alcohol and was taken to the Elgin Police Station. Once there, Leinen claims, Jenco verbally abused her, and he eventually directed Community Service Officer Shari Ellis to strip search Leinen. Leinen says that Ellis required her to remove her shirt and brassiere and visually inspected her naked torso, while others watched. Leinen sued Jenco, Ellis, and the City of Elgin under 42 U.S.C. § 1983, claiming that the strip search violated her Fourth Amendment rights, and for intentional infliction of emotional distress under Illinois common law.
Defendants have moved for summary judgment, arguing that Leinen's rights were not violated; there is no evidence that Jenco was involved in the alleged search; there is no evidence that the alleged search occurred pursuant to a policy or practice of the City; and the alleged conduct falls short of what is required to give rise to a claim for intentional infliction of emotional distress. For the reasons set forth below, the Court denies defendants' motion.
Facts
Because defendants have moved for summary judgment, the Court views the evidence in the light most favorable to Leinen, drawing reasonable inferences in her favor. See Celotex Corp. v. Catrett, 417 U.S. 317, 322 (1986).
On the evening of September 20, 1998, Leinen, who was visiting her niece's home, bumped a parked car while backing her car out of the driveway. The owner of the other car became upset and called the police. Officer Jenco responded to the call. Jenco asked Leinen if she had been drinking and insisted on conducting a field sobriety examination. Leinen had had two drinks some hours earlier, but she felt she was sober. She became angry with Jenco, objected to the field sobriety testing, words were exchanged, and Jenco arrested her and transported her to the police station. While in the police car, Leinen continued to express agitation, asking Jenco why he was not spending his time catching real criminals instead of arresting people like her.
Once at the station, Jenco began processing Leinen, and more cross words were exchanged between them. Jenco interrupted the processing to speak with other officers; Leinen felt he was deliberately stringing things out, and she told him so. After she asked for his badge number, Leinen says, Jenco called her a "bitch" and said that "your fat ass ain't going nowhere tonight." He then placed her in a small room-like cell; Leinen told him that she was claustrophobic and asked to be handcuffed instead of shut in a small room. Jenco refused, and after he closed the door, Leinen says she experienced a claustrophobic reaction and began to cry and yell to get someone's attention. She says that two other officers who were outside the room mimicked her reaction, and that Jenco continued to exchange harsh words with her.
Jenco then had a private conversation with Ellis, a relatively new community service officer (not a sworn police officer), in which he claims he directed her only to continue processing Leinen and to give Leinen a "quick pat down." Leinen disputes this, based partly on what happened next. She says that Ellis took her into a different room that had a large window facing out into the booking area of the station and left open the door to the room. According to Leinen, Ellis instructed her to lift her shirt and brassiere, and when she protested, Ellis insisted. Leinen, who by this time was crying, complied, exposing her breasts. Leinen says there were people in the booking area who were in a position to see her through the window. After Ellis completed a visual inspection (she is not claimed to have touched Leinen), she escorted Leinen to another cell, where she was kept for the rest of the evening. Ellis denies that she strip searched Leinen, and Jenco denies that he directed Ellis to do so.
Leinen alleges that she was seriously traumatized by the experience of exposing her naked body to strangers, that she lost over 50 pounds within a short time after the incident, and that she suffers from loss of sleep as a result of her experience, as well as other symptoms of anxiety and stress.
There is no evidence that either Jenco or Ellis suspected, or had any reason to believe, that Leinen was concealing contraband. The Department does not appear to have a written policy regarding the circumstances under which strip searches may occur. Neither Jenco nor Ellis has received any training relating to strip searches. Jerry Young, another Community Service Officer working for the Department at the time, testified that there are no criteria for determining whether a strip search occurs, and that it is left up to the arresting officer to decide whether an arrestee is strip searched. Jenco and Ellis deny ever hearing about strip searches being conducted at the Elgin police station. But Young testified that strip searches occur with some frequency, including of traffic offenders like Leinen, though he has never participated in or observed a strip search of a female arrestee.
Discussion
Defendants argue that Leinen has not shown a violation of her Fourth Amendment rights in connection with the strip search. In Mary Beth G. v. City of Chicago, 723 F.2d 1263 (7th Cir. 1983), the Seventh Circuit held that the City of Chicago violated the Fourth Amendment by strip searching female misdemeanor offenders who were detained awaiting the posting of bond, absent reasonable suspicion that an offender was concealing weapons or contraband. See also, e.g., Tinetti v. Wittke, 620 F.2d 160 (7th Cir. 1980) (per curiam) (Fourth Amendment violated by strip search of person arrested and detained overnight for non-misdemeanor traffic offenses where no probable cause to believe that detainee was concealing contraband or weapons). Defendants concede that such reasonable suspicion was likewise lacking here.
Leinen has stated in her response to defendants' motion that her claim is based exclusively on the strip search; she is not making a claim of false arrest or false imprisonment. Pltf. Mem. at 1-2. Thus, the Court need not address defendants' arguments concerning such claims.
Defendants argue, however, that Mary Beth G. and other similar cases are distinguishable because the searches in those cases involved inspection of body cavities. It is true that the practice condemned in Mary Beth G. involved a body cavity inspection and that the court focused on this in its discussion of the intrusiveness of and necessity for the search. Mary Beth G., 723 F.2d at 1272-73. But none of the cases defendants cite hold or even suggest that the type of strip search allegedly employed here comports with constitutional standards. Peckham v. Wisconsin Department of Corrections, 141 F.3d 694 (7th Cir. 1998), involved a search of an incarcerated inmate at an institution housing dangerous felons, and Isby v. Duckworth, 175 F.3d 1020 (7th Cir. 1999), involved a search of a prison inmate suspected of concealing a recently-discharged firearm. Neither case involved a misdemeanor arrestee not suspected of concealing anything. Defendants also cite the Tenth Circuit's unpublished decision in Morreale v. Cripple Creek, No. 96-1220, 1997 WL 290976 (10th Cir. May 27, 1997), but the decision states on its face states that it "is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel." Id. n. *. Even if it were proper to rely on Morreale, the policy examined by the court in that case involved removal of detainees' outer clothing — not their undergarments — so they could change into jail-issued jumpsuits. That is nothing at all like what Leinen claims happened here. Finally, in both Cornfield v. Consolidated High School District No. 230, 991 F.2d 1316 (7th Cir. 1993) and United States v. Brack, 188 F.3d 748 (7th Cir. 1999), the authorities had a reasonable basis to believe that the subject of the search was concealing contraband, thus providing a proper basis for a strip search even under the standards set forth in Mary Beth G. See Cornfield, 991 F.2d at 1322-23; Brack, 188 F.3d at 758-59.
The plaintiff in Morreale happened not to be wearing undergarments, but what the Court was examining was the police department's overall policy. See id., 1997 WL 290976, at *6-7.
In sum, none of the cases cited by defendants so much as hints that the validity of a strip search of a misdemeanor arrestee turns on whether the search includes a body cavity inspection — in other words that it is legal to strip search a misdemeanor arrestee without reasonable suspicion so long as there is no inspection of the arrestee's body cavities.
And Mary Beth G. does not stand alone. In Doe v. Renfrow, 631 F.2d 91 (7th Cir. 1980) (per curiam), the Court condemned a non-body cavity strip search of a junior high school student where reasonable suspicion was lacking, saying that the officials' conduct "exceeded the `bounds of reason' by two and a half country miles." Id. at 93. In Hill v. Bogans, 735 F.2d 391 (10th Cir. 1984), the court held that the Fourth Amendment was violated by requiring a male arrestee to drop his pants and undershorts in view of others in the lobby area of a jail. Id. at 394. Similarly, in Logan v. Shealy, 660 F.2d 1007, 1013 (4th Cir. 1981) (which was cited with approval in Mary Beth G., 723 F.2d at 1273), the Fourth Circuit held that a "visual strip search" of an arrestee that did not include a body cavity examination violated the Fourth Amendment absent a showing of reasonable suspicion to believe that the arrestee was concealing contraband. Id. at 1013; see 500 F. Supp. 502, 504 (E.D. Va. 1980) (describing nature of search). And finally, in Kraushaar v. Flanigan, 45 F, 3d 1040 (7th Cir. 1995), the Seventh Circuit considered a search in which a male arrestee "was told to remove his pants and lower his underwear to permit inspection." Id. at 1043. The court analyzed the search under the Mary Beth G. rubric, stating that the search would be improper absent reasonable suspicion that the arrestee was concealing weapons or contraband on his person; it did not suggest that any different standard applied in view of the fact that no body cavity inspection was made. Id. at 1045. Though the court concluded that reasonable suspicion existed, the case supports the proposition that the same standards apply whether or not the particular strip search involves a body cavity inspection.
The court in Kraushaar relied in part on the fact that a strip search "involving visual inspection of the genital areas" is demeaning and humiliating. 45 F.3d at 1045. Defendants have not suggested, however, that an unconsented visual inspection of a woman's breasts is any less demeaning than an unconsented visual inspection of a man's genitals.
The Fourth Amendment reasonableness inquiry, we think, comes out the same as it did in Mary Beth G. The intrusiveness and invasion of privacy involved in requiring a female arrestee to bare her torso cannot be justified without a showing of reasonable suspicion to believe that the search may turn up contraband. In sum, defendants are not entitled to summary judgment on the issue of the legality of the alleged search.
Indeed, Kraushaar v. Flanigan strongly suggests that under Leinen's version of the events, Jenco and Ellis would not even be entitled to qualified immunity. Kraushaar, 45 F.3d at 1054 n. 7.
Jenco argues that Leinen has no evidence that he was involved in the alleged strip search. We disagree. Young, who like Ellis conducted searches of detained arrestees, said that it was always up to the arresting officer to determine whether an arrestee should be strip searched. Jenco was the arresting officer in this case. This by itself is sufficient to defeat summary judgment. In addition, among other things, the ranking officer at the station that evening says he did not authorize a strip search, as defendants claim is usually required at the Department. This would tend to buttress Leinen's claim that Jenco ordered the search. At this point the matter of Jenco's involvement is genuinely disputed, meaning that it cannot be resolved without a trial.
The City argues that Leinen has failed to come up with evidence that the alleged constitutional deprivation resulted from a policy, custom or practice of the City, as is necessary in order to impose liability on a municipality under § 1983. See generally Monell v. Department of Social Services, 436 U.S. 658 (1978). A widespread practice of constitutional deprivations can suffice to establish the existence of such a policy, even where no formal policy exists. See McNabola v. Chicago Transit Authority, 10 F.3d 501, 511 (7th Cir. 1993). As previously noted, Leinen has offered some evidence indicating that the Department regularly (or at least not infrequently) strip searches misdemeanor arrestees. In addition, and just as importantly, there is evidence that it was left up to the arresting officer to determine whether an arrestee should be strip searched and that the Department had never told officers the circumstances under which a strip search could occur. We have no difficulty concluding that proof of a Department practice that gave an arresting officer discretion to cause a strip search of a misdemeanor arrestee, without any criteria to guide the officer, would permit a jury to impose liability under Monell. See generally City of Canton v. Harris, 489 U.S. 378, 388-89 (1989) (inadequate training may give rise to liability under Monell if it amounts to deliberate indifference to rights of persons with whom police come into contact). In contrast to Cornfeld, supra, a case involving strip searches by school officials in which the court declined to impose municipal liability for failure to train where the underlying constitutional standards were "nebulous," this case involves "a clear constitutional duty implicated in recurrent situations that a particular employee is certain to face." 991 F.2d at 1327 (citing City of Canton, 489 U.S. at 390 n. 10). For these reasons, the Court denies summary judgment on Leinen's Monell claim against the City.
Finally, defendants seek summary judgment on Leinen's state law claim for intentional infliction of emotional distress. They contend that Leinen has failed to show extreme and outrageous conduct that "`goes beyond all possible bounds of decency.'" Public Finance Corp. v. Davis, 66 Ill.2d 85, 89, 360 N.E.2d 765, 767 (1976) (quoting Restatement 2d of Torts, § 46, comment d (1965)). A fact finder, if persuaded of Leinen's version of the events, could conclude that Jenco sought to retaliate against Leinen for challenging his actions and asking for his badge number, and that he did so by forcing her to expose her breasts to others for no reason other than to humiliate her. If proven, this is not, as defendant suggests, in the category of "mere insult, indignities, threats, annoyances, petty oppressions or other trivialities." See id.; McGrath v. Fahey, 126 Ill.2d 78, 86, 533 N.E.2d 806, 809 (1988). A jury reasonably could conclude that such an abuse of authority indeed "exceeds all possible bounds of decency." See Saffell v. Crews, No. 96 C 7209, 1998 WL 142372, at *8 (N.D. Ill. Mar. 19, 1998) (denying summary judgment on claim of intentional infliction of emotional distress based on strip search without reasonable suspicion).
Conclusion
For the foregoing reasons, the Court denies defendants' motion for summary judgment. The final pretrial order (in conformity with Local Rule 16.1 and Form LR 16.1.1) remains due on September 30, 2000, and the case remains set for trial on January 8, 2001. A date for the final pretrial conference will be set following the Court's receipt of the final pretrial order.