Delores Henry v. Melody Hulett

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16‐4234
DELORES HENRY, et al.,
Plaintiffs‐Appellants,
v.
MELODY HULETT, et al.,
Defendants‐Appellees.
____________________
Appeal from the United States District Court
for the Central District of Illinois.
No. 12‐CV‐3087 — Richard Mills, Judge.
____________________
ARGUED MAY 14, 2020 — DECIDED AUGUST 11, 2020
____________________
Before SYKES, Chief Judge, and FLAUM, EASTERBROOK,
MANION, KANNE, ROVNER, WOOD, HAMILTON, BARRETT,
BRENNAN, SCUDDER, and ST. EVE, Circuit Judges.
ST. EVE, Circuit Judge. Plaintiffs—a class of more than 200
current and former female inmates at Lincoln Correctional
Center—brought this action following mass strip searches
conducted as part of a cadet training exercise in 2011. They
contend that the circumstances of the searches—particularly
2 No. 16‐4234
the intrusive and degrading manner in which they occurred—
violated their Fourth and Eighth Amendment rights.
Defendants—various prison officials—moved for sum‐
mary judgment before the district court, arguing that our cir‐
cuit’s prior decisions foreclosed Plaintiffs’ Fourth Amend‐
ment claim. The district court agreed, concluding that, under
Johnson v. Phelan, 69 F.3d 144 (7th Cir. 1995), and King v.
McCarty, 781 F.3d 889 (7th Cir. 2015) (per curiam), convicted
prisoners do not maintain a privacy interest during visual in‐
spections of their bodies. A divided panel of our court af‐
firmed that decision, following the same reasoning. We
granted Plaintiffs’ petition for rehearing en banc and vacated
the panel’s opinion and judgment.
We hold that the Fourth Amendment protects a right to
bodily privacy for convicted prisoners, albeit in a significantly
limited way, including during visual inspections. We there‐
fore reverse the district court’s entry of partial summary judg‐
ment for Defendants on Plaintiffs’ Fourth Amendment claim
and remand for further proceedings.
I. Background
A. Factual Background
We consider the facts in the light most favorable to Plain‐
tiffs, the nonmoving parties, as we must do when reviewing
a district court’s grant of a summary judgment motion. Hall v.
City of Chicago, 953 F.3d 945, 950 (7th Cir. 2020). On March 31,
2011, administrators at Lincoln Correctional Center—a me‐
dium security facility of the Illinois Department of Correc‐
tions (“IDOC”) in Logan County, Illinois, housing approxi‐
mately 1,000 female inmates—held a cadet training exercise.
This training exercise simulated a “mass shakedown”—a
No. 16‐4234 3
practice where IDOC employees search inmates’ living areas
and perform strip searches of the inmates’ persons to find
contraband. Lincoln Warden Melody Hulett testified that she
could not “think of any reason other than the training of ca‐
dets that [she] ordered a shakedown on March 31st, 2011, at
the Lincoln facility.” No evidence in the record indicates the
presence of an ongoing emergency or heightened concern on
the day that the training exercise took place.
Orange Crush tactical team members, cadets from the
IDOC training academy, and correctional officers at Lincoln
carried out the mass shakedown. Orange Crush members
donned full riot gear—wearing helmets, armored vests, and
military boots and carrying batons, pepper spray, and shields.
After attending a briefing, Orange Crush members, correc‐
tional officers, and cadets stormed two housing units—ones
that Hulett chose at random—banging their batons on the
walls, doors, and their hands. As the exercise began in the
early morning, correctional officers and cadets yelled at in‐
mates to wake up and form a line.
Correctional officers and cadets lined up 200 of the in‐
mates in rows, forced them to stand facing the wall, called
them “bitches,” and threatened to put them in segregation if
they were not quiet. Cadets practiced handcuffing prisoners.
Some elderly prisoners cried in pain as a result of standing for
a long period while handcuffed. Prisoners are typically hand‐
cuffed at Lincoln only when sent to the segregation unit for
committing a serious violation of a prison rule.
The officers directed the women to the gym while scream‐
ing obscenities at them and calling them sexually derogatory
names. In the gym, correctional staff forced the women to
stand facing the wall, shoulder to shoulder. Orange Crush
4 No. 16‐4234
members and other officers ordered cadets to perform strip
searches on groups of four to ten women at a time. Prisoners
were required to stand until cadets strip searched them—in
some cases waiting five to seven hours. The women could not
sit, get a drink of water, or use the restroom for the duration
of the training exercise.
Female cadets performed the strip searches, which oc‐
curred in a bathroom and beauty shop adjacent to the gym.
The bathroom was open to the gym, allowing many male cor‐
rectional officers and cadets to see the strip searches taking
place. The beauty shop was also visible from the gym and had
mirrored walls, allowing those passing by to witness the strip
searches. As a result, many people who were not performing
the strip searches nevertheless observed the female inmates.
When cadets strip searched the women, they forced them
to remove all clothing and stand in a line, nearly shoulder to
shoulder. Officers and cadets ordered the women to raise
their breasts, lift their hair, turn around and bend over, spread
their buttocks and vaginas, and cough several times. Women
were forced to stand naked for as long as fifteen minutes, far
longer than a typical strip search because of its group nature.
During the searches, correctional officers made demean‐
ing and derogatory insults, calling Plaintiffs “dirty bitches.”
One commented: “No man wants to be with you because you
smell like death.” Plaintiffs declared that they received com‐
ments like “Your Pussy stinks,” “You all are fucking disgust‐
ing,” and “I can’t believe women smell like this.”
The officers and cadets ordered menstruating prisoners to
remove feminine products and dispose of them on the floor
and in overflowing garbage cans, in full view of others.
No. 16‐4234 5
Women stood barefoot on the bathroom floor, which was
dirty with menstrual blood and other bodily fluids. While
they waited in the gym for the searches to finish, women did
not receive replacement feminine hygiene products and were
left to bleed on themselves for several hours, soaking through
their clothes and getting blood on their legs and feet.
During the strip searches, one inmate pulled three pills out
of her vaginal cavity. Prison officials recovered contraband
from the cells of approximately 45 of the 200 inmates. Dozens
of prisoners submitted grievances after the exercise. Many
never received a response. No one ever completed an internal
investigation, and no employee received any discipline.
B. Procedural Background
Ieshia Brown, Delores Henry, Patricia Philipps, and
Jacqueline Hegwood filed a putative class action alleging that
Warden Melody Hulett, Assistant Warden Russell Reynolds,
and a group of other supervisors and correctional officers vi‐
olated their Fourth, Eighth, and Fourteenth Amendment
rights. Plaintiffs sought damages and injunctive relief prohib‐
iting future public group strip searches during cadet training
exercises.
The district court certified several classes seeking both
damages and injunctive relief: (1) women subjected to the
March 2011 searches who remain in IDOC custody;
(2) women subjected to the March 2011 strip searches who
had been released from custody; and (3) women who are cur‐
rently incarcerated at Logan Correctional Center, the facility
that now houses all of the inmates formerly at Lincoln, or will
be incarcerated there in the future.
6 No. 16‐4234
Defendants moved for summary judgment. In their mo‐
tion, Defendants did not dispute that Plaintiffs’ factual asser‐
tions, if true, supported an Eighth Amendment claim. Re‐
garding Plaintiffs’ Fourth Amendment claim, however, De‐
fendants argued that, pursuant to Hudson v. Palmer, 468 U.S.
517 (1984), and Johnson, “there is no Fourth Amendment pro‐
tection against searches for prison inmates.” Defendants did
not raise a qualified immunity defense, nor did they argue
that Plaintiffs failed to present evidence of physical injury
pursuant to the Prison Litigation Reform Act (“PLRA”). See
42 U.S.C. § 1997e(e).
The district court granted summary judgment for Defend‐
ants on Plaintiffs’ Fourth Amendment claim. The court rea‐
soned that the strip searches here were limited to visual in‐
spections of the naked body, putting them squarely in line
with our decisions in Johnson and King. These cases, the court
concluded, foreclosed Plaintiffs’ Fourth Amendment claim.
Because the district court concluded that no relief was availa‐
ble to Plaintiffs under the Fourth Amendment, it did not per‐
form the reasonableness analysis that Fourth Amendment
claims demand.
The parties proceeded to trial on Plaintiffs’ Eighth
Amendment claim. The court instructed the jury that, to pre‐
vail, Plaintiffs had to prove that each defendant “was deliber‐
ately indifferent to a substantial risk that the strip searches
were being conducted in a harassing manner intended to hu‐
miliate and cause psychological pain.” During closing argu‐
ments, Defendants stressed: “To prevail, the plaintiffs need to
prove that these individuals intended for them to be harassed
and humiliated, for them to suffer psychological pain during
these strip searches, that they didn’t truly intend to find
No. 16‐4234 7
contraband to conduct the strip search.” The jury returned a
verdict for Defendants.
Plaintiffs appealed the district court’s summary judgment
ruling on their Fourth Amendment claim, arguing that the
district court erred in holding that the Fourth Amendment
does not protect prisoners during visual bodily searches. In
addition to defending the district court’s ruling, and after fail‐
ing to raise the issue below, Defendants argued that we
should affirm the district court’s decision because, even if the
Fourth Amendment does cover the searches at issue, they are
entitled to qualified immunity. Defendants further argued
that Plaintiffs are not eligible to receive the relief they seek for
several reasons, including that they may not receive compen‐
satory damages because they did not present evidence of
physical injury pursuant to the PLRA and that the district
court erred in certifying Plaintiffs’ damages classes. Plaintiffs
did not appeal the jury verdict on their Eighth Amendment
claim.
A divided panel of our court affirmed the district court’s
judgment. Relying on Hudson and King, the panel determined
that the strip searches fell outside of the protection of the
Fourth Amendment. We granted Plaintiffs’ petition for re‐
hearing en banc and vacated the panel’s opinion and judg‐
ment.
II. Discussion
We review a district court’s summary judgment ruling de
novo and consider the facts and draw all inferences in the
light most favorable to the nonmoving party. Hall, 953 F.3d at
950. Summary judgment is appropriate when “there is no
8 No. 16‐4234
genuine dispute as to any material fact and the movant is en‐
titled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
A. Fourth Amendment
We first address the issue at the heart of this appeal:
whether convicted prisoners retain a Fourth Amendment
right to privacy during visual inspections of their bodies. The
Fourth Amendment guarantees the “right of the people to be
secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures.” U.S. Const. amend. IV.
Strip and body cavity searches are “searches” of “persons”
under the meaning of the Fourth Amendment. Florence v. Bd.
of Chosen Freeholders of Cty. of Burlington, 566 U.S. 318, 326–27,
339 (2012); Bell v. Wolfish, 441 U.S. 520, 560 (1979).
The “touchstone” of the Fourth Amendment analysis is
whether a person has a “constitutionally protected reasonable
expectation of privacy.” Oliver v. United States, 466 U.S. 170,
177 (1984) (quoting Katz v. United States, 389 U.S. 347, 360
(1967) (Harlan, J., concurring)). The Fourth Amendment does
not protect every subjective expectation of privacy, but those
expectations “that society is prepared to recognize as ‘reason‐
able.’” Id. (quoting Katz, 389 U.S. at 361); see also Smith v. Mar‐
yland, 442 U.S. 735, 740–41 (1979). Assessing whether a search
violated a person’s Fourth Amendment rights “requires a bal‐
ancing of the need for the particular search against the inva‐
sion of personal rights that the search entails.” Bell, 441 U.S.
at 559.
The Supreme Court has yet to address the specific ques‐
tion of whether convicted prisoners maintain a reasonable ex‐
pectation of privacy in their bodies when it comes to visual
strip searches. In Bell v. Wolfish, while addressing a Fourth
No. 16‐4234 9
Amendment claim against a policy of routinely strip search‐
ing inmates after contact visits, the Court assumed without
deciding “that inmates, both convicted prisoners and pretrial
detainees, retain some Fourth Amendment rights upon com‐
mitment to a corrections facility.” 441 U.S. at 558.
Subsequently, in Hudson, the Court announced a limited
categorical rule: the “Fourth Amendment proscription
against unreasonable searches does not apply within the con‐
fines of the prison cell.” 468 U.S. at 526 (emphasis added). Im‐
portantly, Hudson left open the question of whether, and to
what extent, prisoners maintain a right to privacy in their
bodies. As we have stated before, we do not read Hudson so
broadly as to foreclose that right. See Sparks v. Stutler, 71 F.3d
259, 261 (7th Cir. 1995) (“Hudson did not require the Court to
decide what interests prisoners retain in their bodies, as op‐
posed to their surroundings.”); Forbes v. Trigg, 976 F.2d 308,
312 (7th Cir. 1992) (“[P]rison inmates retain protected privacy
rights in their bodies, although these rights do not extend to
their surroundings.” (citing Hudson)). Justice O’Connor’s con‐
currence in Hudson emphasized the narrowness of the Court’s
holding: the Court addressed specifically inmates’ “privacy
and possessory interests in personal effects” and “searches
and seizures of the contents of an inmate’s cell,” not the en‐
tirety of rights potentially available to inmates under the
Fourth Amendment. Hudson, 468 U.S. at 538 (O’Connor, J.,
concurring). Although our dissenting colleague asserts that a
conviction extinguishes all of a prisoner’s Fourth Amendment
rights, the Supreme Court has never extended the scope of
Hudson to exclude any aspect of a prisoner’s life beyond her
cell from the reaches of the Fourth Amendment. See King v.
Rubenstein, 825 F.3d 206, 215 (6th Cir. 2016) (“[N]othing in
10 No. 16‐4234
Hudson indicates the Supreme Court intended to abrogate a
prisoner’s expectation of privacy beyond his cell.”).
Although it did so in Hudson, the Court generally advises
“caution in approaching claims that the Fourth Amendment
is inapplicable” as a categorical rule in a particular context.
Hudson, 468 U.S. at 525 (majority opinion); see also id. at 537
(O’Connor, J., concurring) (“The Fourth Amendment ‘reason‐
ableness’ determination is generally conducted on a case‐by‐
case basis[.]”). We do not think it naturally follows that, be‐
cause the Court created a categorical exception to a prisoner’s
Fourth Amendment rights in her cell, the Court intended to
expand that rule to also deprive a prisoner of all Fourth
Amendment protections in her body. Indeed, the Supreme
Court has indicated several times that the privacy interest in
one’s body is more acute than the interest in one’s property.
See United States v. Flores‐Montano, 541 U.S. 149, 152 (2004)
(“highly intrusive searches of the person” implicate “dignity
and privacy interests” that “simply do not carry over to vehi‐
cles”); Wyoming v. Houghton, 526 U.S. 295, 303 (1999) (recog‐
nizing that searches of a person’s body receive “significantly
heightened protection” under the Fourth Amendment as
compared with property searches); Ybarra v. Illinois, 444 U.S.
85, 91–92 (1979) (holding that a search warrant for a tavern
and its bartender did not permit body searches of all the bar’s
patrons); United States v. Di Re, 332 U.S. 581, 587 (1948) (hold‐
ing that probable cause to search a car did not justify a body
search of a passenger). These decisions, at the very least, deter
us from assuming that one’s privacy interest in her property
is tantamount to one’s privacy interest in her person.
Although Hudson does not directly address the issue be‐
fore us, it frames our analysis. No “iron curtain” separates
No. 16‐4234 11
prisons from the Constitution. Hudson, 468 U.S. at 523 (quot‐
ing Wolff v. McDonnell, 418 U.S. 539, 555 (1974)). Thus, prison‐
ers must “be accorded those rights not fundamentally incon‐
sistent with imprisonment itself or incompatible with the ob‐
jectives of incarceration.” Id. And, as in all other Fourth
Amendment inquiries, prisoners retain Fourth Amendment
rights only if a “‘justifiable,’ a ‘reasonable,’ or a ‘legitimate ex‐
pectation of privacy’” is at stake. Id. at 525 (quoting Smith, 442
U.S. at 740). As a practical matter, certain rights must be re‐
stricted to make way for “a myriad of ‘institutional needs and
objectives’ of prison facilities.” Id. at 524 (quoting Wolff, 418
U.S. at 555); see also Bell, 441 U.S. at 545 (“[S]imply because
prison inmates retain certain constitutional rights does not
mean that these rights are not subject to restrictions and limi‐
tations.”).
In Hudson, the Court concluded that the right to privacy in
possessions and living quarters was one such right that must
succumb to these concerns, as it was “fundamentally incom‐
patible with the close and continual surveillance of inmates
and their cells required to ensure institutional security and in‐
ternal order.” 468 U.S. at 527–28. As a result, the Court held
that “society is not prepared to recognize as legitimate any
subjective expectation of privacy that a prisoner might have
in his prison cell.” Id. at 525–26. We similarly must now de‐
cide whether an inmate’s expectation of bodily privacy “is the
kind of expectation that ‘society is prepared to recognize as
reasonable,’” given the safety and security concerns inherent
to the prison context. Id. at 525 (quoting Katz, 389 U.S. at 361).
Strip searches are “demeaning, dehumanizing, undigni‐
fied, humiliating, terrifying, unpleasant, embarrassing, repul‐
sive, signifying degradation and submission.” Mary Beth G. v.
12 No. 16‐4234
City of Chicago, 723 F.2d 1263, 1272 (7th Cir. 1983). We have
recognized that “[o]ne of the clearest forms of degradation in
Western Society is to strip a person of his clothes. The right to
be free from strip searches and degrading body inspections is
thus basic to the concept of privacy.” Canedy v. Boardman, 16
F.3d 183, 185 (7th Cir. 1994). The privacy interest in one’s body
is clearly a heightened and fundamental one. And while
prison security requires officials to constantly monitor prison‐
ers’ cells, the same is not true of their unclothed persons.
We conclude that a diminished right to privacy in one’s
body, unlike a right to privacy in one’s property and sur‐
roundings, is not fundamentally incompatible with imprison‐
ment and is an expectation of privacy that society would rec‐
ognize as reasonable. We therefore join every other circuit to
have addressed the question and hold that the Fourth
Amendment protects (in a severely limited way) an inmate’s
right to bodily privacy during visual inspections, subject to
reasonable intrusions that the realities of incarceration often
demand. See, e.g., Cookish v. Powell, 945 F.2d 441, 445–46 (1st
Cir. 1991) (per curiam); Harris v. Miller, 818 F.3d 49, 57 (2d Cir.
2016) (per curiam); Parkell v. Danberg, 833 F.3d 313, 325 (3d
Cir. 2016); Bushee v. Angelone, 7 F. App’x 182, 184 (4th Cir.
2001) (per curiam); Hutchins v. McDaniels, 512 F.3d 193, 196
(5th Cir. 2007) (per curiam); Stoudemire v. Mich. Dep’t of Corr.,
705 F.3d 560, 572 (6th Cir. 2013); Franklin v. Lockhart, 883 F.2d
654, 656–57 (8th Cir. 1989); Nunez v. Duncan, 591 F.3d 1217,
1227–28 (9th Cir. 2010); Farmer v. Perrill, 288 F.3d 1254, 1259–
60 (10th Cir. 2002); Fortner v. Thomas, 983 F.2d 1024, 1030 (11th
Cir. 1993). Thus, when evaluating a prisoner’s Fourth Amend‐
ment claim regarding a strip or body cavity search, courts
must assess that search for its reasonableness, considering
“the scope of the particular intrusion, the manner in which it
No. 16‐4234 13
is conducted, the justification for initiating it, and the place in
which it is conducted.” Bell, 441 U.S. at 559.
We highlight that our holding today—that inmates main‐
tain a privacy interest, although diminished, in their bodies—
pertains to pretrial detainees and convicted prisoners alike.
Importantly, Hudson drew no distinction between these two
categories in its analysis; rather, the Court focused on the
heightened concerns over safety and security emblematic of
any detention facility. The Court explained:
[P]rison administrators are to take all necessary steps
to ensure the safety of not only the prison staffs and
administrative personnel, but also visitors. They are
under an obligation to take reasonable measures to
guarantee the safety of the inmates themselves. They
must be ever alert to attempts to introduce drugs and
other contraband into the premises which, we can ju‐
dicially notice, is one of the most perplexing problems
of prisons today; they must prevent, so far as possible,
the flow of illicit weapons into the prison; they must be
vigilant to detect escape plots, in which drugs or weap‐
ons may be involved, before the schemes materialize.
Hudson, 468 U.S. at 526–27. These concerns relate to both pre‐
trial detainees and convicted prisoners. The Court has in‐
structed that “[t]here is no basis for concluding that pretrial
detainees pose any lesser security risk than convicted in‐
mates. Indeed, it may be that in certain circumstances they
present a greater risk to jail security and order.” Bell, 441 U.S.
at 546 n.28; see also Florence, 566 U.S. at 334–37. As a result, the
principle of “‘mutual accommodation between institutional
needs and objectives and the provisions of the Constitution’
… applies equally to pretrial detainees and convicted
14 No. 16‐4234
prisoners.” Bell, 441 U.S. at 546 (citation omitted). Contrary to
the assertion of our dissenting colleague, neither Bell nor Flor‐
ence limited its holding solely to pretrial detainees. As stated
above, Bell expressly assumed that convicted prisoners retain
Fourth Amendment rights.
Indeed, many of our sister circuits have concluded that the
Fourth Amendment protects a limited right to bodily privacy
for convicted prisoners, specifically. See, e.g., Cookish, 945 F.2d
at 445–46 (concluding the principle that the Fourth Amend‐
ment applies to searches of convicted prisoners was well es‐
tablished); Harris, 818 F.3d at 58 n.2 (“Bell arose in the context
of a pretrial detainee strip‐search policy, but its framework is
equally applicable to convicted inmates challenging isolated
searches.”); Parkell, 833 F.3d at 324–25 (concluding that the
Bell balancing test applies to a convicted prisoner’s Fourth
Amendment claim); Hutchins, 512 F.3d at 196 (reiterating
“that the Fourth and not the Eighth Amendment governs
searches of prisoners”); Cornwell v. Dahlberg, 963 F.2d 912, 916
(6th Cir. 1992) (holding that “a convicted prisoner maintains
some reasonable expectations of privacy while in prison”);
Michenfelder v. Sumner, 860 F.2d 328, 331–32 (9th Cir. 1988)
(analyzing visual body cavity searches of convicted prisoners
for reasonableness); Fortner, 983 F.2d at 1030 (recognizing a
convicted prisoner’s right to bodily privacy under the Fourth
Amendment). We are not aware of any decision from another
circuit court that has announced this right extinguishes upon
conviction.*
* The cases our dissenting colleague cites do not stand for the contrary.
Wallace v. Kato, 549 U.S. 384 (2007), does not suggest that the Fourth
Amendment falls away when an arrestee appears before a magistrate. Ra‐
ther, Wallace held that the statute of limitations for a claim under § 1983
No. 16‐4234 15
1. The Interplay of the Fourth and Eighth Amendments
Defendants argue that recognizing a Fourth Amendment
right to bodily privacy, as we do today, undermines the va‐
lidity of the Eighth Amendment. Applying the Fourth
Amendment to strip searches of convicted inmates, they con‐
tend, nullifies the Eighth Amendment’s subjective intent re‐
quirement by permitting Plaintiffs to prove only the objective
unreasonableness of the searches. We conclude that the ap‐
plicability of the Fourth Amendment does not compromise
the heightened standard of the Eighth.
As Defendants concede, constitutional rights can co‐exist
inside the walls of a prison just as they do outside: prisoners,
like all citizens, benefit from the protection of numerous enu‐
merated constitutional rights, and these rights may some‐
times overlap. See United States v. James Daniel Good Real Prop.,
510 U.S. 43, 49 (1993) (“We have rejected the view that the ap‐
plicability of one constitutional amendment pre‐empts the
guarantees of another.”). As the Supreme Court explained in
Soldal v. Cook County, 506 U.S. 56 (1992), “Where … multiple
for a false arrest in violation of the Fourth Amendment begins to run at
the time the plaintiff becomes detained pursuant to such process, because
that process renders the imprisonment no longer false. Id. at 389–92.
McDonough v. Smith, 139 S. Ct. 2149 (2019), which likewise addressed the
accrual of a § 1983 claim, has even less to say on the post‐conviction status
of the Fourth Amendment. And, in Manuel v. City of Joliet, 137 S. Ct. 911
(2017), the Court’s only relevant statement—“once a trial has occurred, the
Fourth Amendment drops out”—reflected merely that “a person chal‐
lenging the sufficiency of the evidence to support both a conviction and
any ensuing incarceration does so under the Due Process Clause of the
Fourteenth Amendment,” rather than the Fourth. Id. at 920 n.8. The Su‐
preme Court has never announced nor implied that conviction destroys
the entirety of a prisoner’s Fourth Amendment rights.
16 No. 16‐4234
violations are alleged,” courts do not search for “the claim’s
‘dominant’ character” and limit their inquiry to one body of
constitutional law. Id. at 70. Instead, they “examine each con‐
stitutional provision in turn.” Id. True, the Supreme Court has
held unenumerated rights—such as those arising from the due
process clause—do not afford a prisoner greater protection
than the Eighth Amendment. Whitley v. Albers, 475 U.S. 312,
327 (1986). But this conclusion is specific to the Court’s sub‐
stantive due process jurisprudence—claims “covered by a
specific constitutional provision, such as the Fourth or Eighth
Amendment … must be analyzed under the standard appro‐
priate to that specific provision, not under the rubric of sub‐
stantive due process.” United States v. Lanier, 520 U.S. 259, 272
n.7 (1997); see also Graham v. Connor, 490 U.S. 386, 395 (1989)
(“Because the Fourth Amendment provides an explicit textual
source of constitutional protection against this sort of physi‐
cally intrusive governmental conduct, that Amendment, not
the more generalized notion of ‘substantive due process,’
must be the guide for analyzing these claims.”).
Accordingly, in several circumstances, the Court has
deemed that other, enumerated constitutional rights afford
prisoners certain protections alongside the Eighth Amend‐
ment safeguards against cruel and unusual punishment. See,
e.g., Wolff, 418 U.S. at 555–56 (recognizing due process rights
as applied to discipline received in prison); O’Lone v. Estate of
Shabazz, 482 U.S. 342, 348–50 (1987) (recognizing First Amend‐
ment right to freedom of religion in prison); Lee v. Washington,
390 U.S. 333, 333 (1968) (per curiam) (recognizing equal pro‐
tection rights in prison). Similarly, we have previously con‐
cluded that the digital rectal search of a prisoner “falls under
both the constitutional protections of the Fourth Amendment
No. 16‐4234 17
and the Eighth Amendment.” Del Raine v. Williford, 32 F.3d
1024, 1039 (7th Cir. 1994).
Importantly, the Fourth and Eighth Amendments have
different roles to play with respect to bodily searches and pro‐
tect different categories of constitutional rights. The Eighth
Amendment safeguards prisoners against the use of searches
that correctional officers subjectively intend as a form of pun‐
ishment. See Whitley, 475 U.S. at 319–20. Because reasonable‐
ness is an objective test, a defendant’s subjective state of mind
is irrelevant to a court’s Fourth Amendment analysis. See Gra‐
ham, 490 U.S. at 398 (“[T]he terms ‘cruel’ and ‘punishments’
clearly suggest some inquiry into subjective state of mind,
whereas the term ‘unreasonable’ does not.”). The Fourth
Amendment thus protects prisoners from searches that may
be related to or serve some institutional objective, but where
guards nevertheless perform the searches in an unreasonable
manner, in an unreasonable place, or for an unreasonable pur‐
pose. See Bell, 441 U.S. at 559. This last consideration is partic‐
ularly salient in the case before us: certainly, a court need not
give as much deference to a prison administrator’s assess‐
ment of the necessity of a training exercise as it does to
measures taken in response to the actual presence of weap‐
ons, contraband, or other immediate security concerns.
2. Right to Bodily Privacy in Visual Inspections
Although today we announce that convicted prisoners
maintain a right to bodily privacy during visual inspections
of their bodies, we have not always been so clear. In the wake
of Hudson, we have taken different, sometimes conflicting, ap‐
proaches to addressing the scope of that right. In several
cases, we concluded that the Fourth Amendment protects
some degree of privacy as pertains to bodily searches. See, e.g.,
18 No. 16‐4234
Peckham v. Wis. Dep’t of Corr., 141 F.3d 694, 697 (7th Cir. 1998)
(“So, does a prison inmate enjoy any protection at all under
the Fourth Amendment against unreasonable searches and
seizures? … [W]e think the answer is ‘yes[.]’”); Sparks, 71 F.3d
at 260 (concluding that the Fourth Amendment applies to the
involuntary catheterization of an inmate); Del Raine, 32 F.3d
at 1039 (noting that the execution of a digital rectal probe of
an inmate for contraband falls “under both the constitutional
protections of the Fourth Amendment and the Eighth
Amendment”); Canedy, 16 F.3d at 185–86 (applying the Fourth
Amendment reasonableness test announced in Bell to strip
searches); Forbes, 976 F.2d at 312–13 (concluding that urine
tests are searches for Fourth Amendment purposes, and that
these searches must be reasonable pursuant to Bell). Indeed,
in Canedy, we explained that Hudson foreclosed some but not
all of an inmate’s Fourth Amendment rights:
Some diminution of privacy is of course to be expected
in prison. See Hudson v. Palmer, 468 U.S. 517 (1984)
(prisoners are entitled to no reasonable expectation of
privacy in their prison cells insuring them of Fourth
Amendment protection against unreasonable searches
and seizures). Inmates surely do not enjoy the full
sweep of constitutional rights afforded other members
of society. But even so, those who are convicted of
criminal offenses do not surrender all of their constitu‐
tional rights.
16 F.3d at 185. We then concluded that body cavity “searches
must be conducted in a reasonable manner.” Id. at 186 (quot‐
ing Bell, 441 U.S. at 560). And in Sparks, we recognized, “Cer‐
tainly Hudson does not establish that the interior of one’s body
No. 16‐4234 19
is as open to invasion as the interior of one’s cell.” 71 F.3d at
261.
But we have at least one decision pointing in a different
direction. In Johnson, we broadly announced that Hudson held
that any Fourth Amendment right to privacy extinguished
upon conviction, and we affirmed the dismissal of an inmate’s
Fourth Amendment claim regarding observation of his naked
body on that basis. 69 F.3d at 146, 150. Thus, in King, we at‐
tempted to reconcile this inconsistency in our case law with a
bright‐line rule: that prisoners retain an expectation of pri‐
vacy regarding physical intrusions into their bodies—such as
during digital rectal probes and forced catheterizations—but
not visual inspections of them. 781 F.3d at 899–901.
As our colleague initially explained in his concurrence in
King, this rule is untenable. 781 F.3d at 901–04 (Hamilton, J.,
concurring). To begin, it draws no support from Supreme
Court precedent. Indeed, the strip searches the Court evalu‐
ated using a reasonableness analysis in Bell and Florence were
visual. Bell, 441 U.S. at 528; Florence, 566 U.S. at 325. No other
circuit has announced (nor ever entertained the notion) that
the Fourth Amendment reaches only searches that involve a
physical intrusion by a searching official. This is for good rea‐
son, as searches may be attributed to law enforcement when
they do not physically do the searching, but it occurs at their
command. See, e.g., City of Los Angeles v. Patel, 576 U.S. 409,
420–21 (2015) (describing a demand by officers for hotel own‐
ers to produce records as a search); see also United States v.
Pope, 686 F.3d 1078, 1082 (9th Cir. 2012) (“[A] Fourth Amend‐
ment search occurs when police command a person to reveal
something in which he would otherwise have a reasonable
expectation of privacy and that thing or that area is revealed
20 No. 16‐4234
as a result of the command.”). This is consistent with the over‐
arching focus of the Fourth Amendment reasonableness anal‐
ysis, which evaluates an individual’s expectation of privacy
“in what was searched,” not who did the searching. United
States v. Scott, 731 F.3d 659, 663 (7th Cir. 2013) (emphasis
added). To conclude otherwise promotes a distinction with‐
out a difference: whereas a manual body cavity search con‐
ducted by a prison official would fall within the domain of the
Fourth Amendment, a search in which an officer orders a pris‐
oner to manipulate her own body and merely looks on would
avoid review. In light of these considerations, we thus over‐
rule the section of King addressing the plaintiff’s Fourth
Amendment claim and the bright‐line rule it announced.
Likewise, we overrule our decision in Johnson to the extent
it deems the Fourth Amendment inapplicable to visual in‐
spections during bodily searches. That case, like the one we
address today, involved visual bodily searches, although of a
less intrusive manner: male prisoners raised a Fourth Amend‐
ment challenge to female officers routinely and incidentally
observing them in various states of undress in their prison
cells, showers, and toilets. Johnson, 69 F.3d at 145. In Johnson,
we read Hudson as eliminating all rights to privacy under the
Fourth Amendment within prisons and thus affirmed the dis‐
missal of the plaintiff’s Fourth Amendment claim on that ba‐
sis. Id. at 146, 150. That reasoning does not survive today’s
holding. We do note, however, that the result in Johnson
would have been no different under a reasonableness analy‐
sis, given the limited nature of the intrusions at issue and the
ever‐present institutional concerns over safety and security.
No. 16‐4234 21
3. Deference to Prison Administrators
Having determined that the Fourth Amendment governs
the searches at issue here, we turn our attention to how courts
must perform the resulting reasonableness analysis and the
various considerations they should weigh. Bell, 441 U.S. at
559. When evaluating reasonableness, in the context of strip
searches of prisoners as in others, courts must afford prison
administrators “wide‐ranging deference in the adoption and
execution of policies and practices that in their judgment are
needed to preserve internal order and discipline and to main‐
tain institutional security.” Bell, 441 U.S. at 547; see also Flor‐
ence, 566 U.S. at 328. Thus, “in the absence of substantial evi‐
dence in the record to indicate that the officials have exagger‐
ated their response to these considerations, courts should or‐
dinarily defer to their expert judgment in such matters.” Bell,
441 U.S. at 548 (quoting Pell v. Procunier, 417 U.S. 817, 827
(1974)).
Accordingly, in Florence, the Supreme Court noted that
“[c]orrectional officials have a significant interest in conduct‐
ing a thorough search as a standard part of the intake pro‐
cess,” and that visual bodily inspections for symbols of gang
affiliation and contraband that could create safety and secu‐
rity concerns are generally reasonable. 566 U.S. at 330–34.
And in Bell, the Court concluded that visual body cavity
searches of pretrial detainees after contact visits, absent evi‐
dence officials performed the searches in an unreasonable
manner, did not violate inmates’ Fourth Amendment rights.
441 U.S. at 558–60. Indeed, Plaintiffs concede that prison offi‐
cials may strip and body cavity search inmates, if the officials
conduct those searches in an appropriate manner, because of
concerns regarding safety and security. Likewise, incidental
22 No. 16‐4234
observations of undressed inmates—particularly ones that
are infrequent or at a distance—that are inherent to the con‐
tinuous surveillance necessary in prisons are almost always
reasonable. Cf. Grummett v. Rushen, 779 F.2d 491, 495 (9th Cir.
1985).
Consistent with the principle of deference to the judgment
of prison administrators, several of our sister circuits, after
undertaking a reasonableness analysis of prison strip
searches, have concluded that these searches do not violate
the Fourth Amendment where the level of intrusion does not
outweigh the purported justification for the search. See, e.g.,
Lewis v. Sec’y of Pub. Safety & Corr., 870 F.3d 365, 368–69 (5th
Cir. 2017) (upholding as reasonable visual body cavity
searches of prisoners returning from work); Nunez, 591 F.3d
at 1227–28 (upholding a visual body cavity search where the
prisoner failed to produce evidence that it was unreasonable);
Franklin, 883 F.2d at 656–57 (holding that visual body cavity
searches that were justified by “legitimate security concerns”
did not violate the Fourth Amendment); Michenfelder, 860
F.2d at 332–33 (policy of performing visual body cavity
searches every time prisoner left or returned to maximum se‐
curity unit served legitimate penological interest of institu‐
tional security); Elliott v. Lynn, 38 F.3d 188, 190–92 (5th Cir.
1994) (“en mass” visual body cavity searches in a non‐private
area were reasonable to effectively respond to a spike in
prison violence). The Fourth Amendment can, and must, ac‐
count for institutional concerns.
As these many decisions demonstrate, though, the fact
that institutional concerns significantly diminish the privacy
rights of persons in prison does not mean that the Fourth
Amendment provides no protection at all. Indeed, the
No. 16‐4234 23
Supreme Court has applied the Fourth Amendment reasona‐
bleness inquiry in other settings where individuals also have
“significantly diminished” privacy rights. See United States v.
Knights, 534 U.S. 112, 118–20 (2001) (applying a reasonable‐
ness analysis to the search of a probationer’s home, although
probationers “do not enjoy the absolute liberty to which every
citizen is entitled”); Samson v. California, 547 U.S. 843, 850–55
(2006) (considering the weakness of a parolee’s privacy inter‐
est and the strength of the government’s interest in public
safety to uphold a suspicionless search of a parolee as reason‐
able under the Fourth Amendment).
4. Reasonableness of the Search
Finally, although we have concluded that the Fourth
Amendment applies to the strip and body cavity searches at
issue, this does not mean that Plaintiffs are necessarily enti‐
tled to a trial on their Fourth Amendment claim. They still
must provide sufficient evidence that the searches were un‐
reasonable, considering “the scope of the particular intru‐
sion[s], the manner in which [they were] conducted, the justi‐
fication for initiating [them], and the place in which [they
were] conducted.” Bell, 441 U.S. at 559.
Citing security concerns and the need for cadet training,
Defendants argue that the searches at issue were reasonable.
We do not resolve today, however, whether Plaintiffs have
demonstrated a genuine dispute regarding the reasonable‐
ness of the searches. Because the district court concluded the
Fourth Amendment did not cover the searches at issue here,
it did not perform a reasonableness analysis. Indeed, Defend‐
ants, in their motion to strike Plaintiffs’ response to their mo‐
tion for summary judgment, conceded that “[t]he nature of
the searches and whether they were conducted in the manner
24 No. 16‐4234
claimed by Plaintiffs are clearly in dispute.” On this record,
we cannot determine whether the searches were, in fact, rea‐
sonable. We thus leave that analysis to the district court to
perform in the first instance on remand.
B. Qualified Immunity
In the alternative, Defendants argue that we should affirm
the district court’s judgment on the ground that they are enti‐
tled to qualified immunity. They contend that, as of March
2011, it was not clearly established that a visual strip and body
cavity search of a prisoner could violate the Fourth Amend‐
ment.
Qualified immunity is an affirmative defense that “pro‐
tects government officials ‘from liability for civil damages in‐
sofar as their conduct does not violate clearly established stat‐
utory or constitutional rights of which a reasonable person
would have known.’” Pearson v. Callahan, 555 U.S. 223, 231
(2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
Whether a right is clearly established hinges on the “objective
legal reasonableness of the action, assessed in light of the legal
rules that were clearly established at the time it was taken.”
Id. at 244 (quoting Wilson v. Layne, 526 U.S. 603, 614 (1999)). A
clearly established right is one that is “dictated by ‘controlling
authority’ or ‘a robust consensus of cases of persuasive au‐
thority.’” District of Columbia v. Wesby, 138 S. Ct. 577, 589–90
(2018) (quoting Ashcroft v. al‐Kidd, 563 U.S. 731, 741–42 (2011)).
“It is not enough that the rule is suggested by then‐existing
precedent. The precedent must be clear enough that every
reasonable official would interpret it to establish the particu‐
lar rule the plaintiff seeks to apply.” Id. at 590. The right must
be established not as a general proposition but in a
No. 16‐4234 25
particularized manner so its contours are clear to a reasonable
official. Reichle v. Howards, 566 U.S. 658, 665 (2012).
As a threshold matter, we must first determine whether
this defense is properly before us. Courts generally do not
consider issues raised for the first time on appeal. Singleton v.
Wulff, 428 U.S. 106, 120 (1976); CNH Indus. Am. LLC v. Jones
Lang LaSalle Ams., Inc., 882 F.3d 692, 705 (7th Cir. 2018). “The
underlying concern is to ensure that the opposing party is not
prejudiced by being denied sufficient notice to respond to an
argument.” Hernandez v. Cook Cty. Sheriff’s Office, 634 F.3d 906,
913 (7th Cir. 2011). Plaintiffs argue that Defendants waived,
or at least forfeited, their qualified immunity defense by fail‐
ing to raise it at summary judgment before the district court.
Defendants concede that they failed to raise the defense in
their summary judgment briefs, but they contend that they
neither waived nor forfeited the defense because they as‐
serted it in their answer and interrogatory responses.
Because Defendants failed to raise their qualified immun‐
ity defense in their summary judgment motion before the dis‐
trict court, and instead raised it for the first time in their ap‐
pellate brief, they have waived it for purposes of this appeal.
See DeMallory v. Cullen, 855 F.2d 442, 449 n.4 (7th Cir. 1988)
(noting defendants waived the argument that they are enti‐
tled to qualified immunity by failing to raise it before the dis‐
trict court). This is true even though Defendants asserted
qualified immunity in their answer and interrogatory re‐
sponses. See, e.g., Maul v. Constan, 928 F.2d 784, 786 (7th Cir.
1991) (raising a qualified immunity defense in an answer “is
not sufficient to prevent a finding of waiver because the de‐
fendants did not preserve the point when they had subse‐
quent opportunity to do so”). We have previously said we
26 No. 16‐4234
will “not affirm a judgment based on an affirmative defense
raised for the first time on appeal.” McDonald v. Adamson, 840
F.3d 343, 347 (7th Cir. 2016). Accordingly, we will not con‐
sider the merits of Defendants’ qualified immunity defense at
this stage.
Even if we viewed Defendants’ invocation of qualified im‐
munity as only forfeited, the outcome is no different. Waiver
and forfeiture are distinct legal concepts. Hamer v. Neighbor‐
hood Hous. Servs. of Chi., 138 S. Ct. 13, 17 n.1 (2017). Whereas
waiver is the “intentional relinquishment or abandonment of
a known right,” forfeiture is the mere failure to raise a timely
argument, due to either inadvertence, neglect, or oversight.
United States v. Olano, 507 U.S. 725, 733 (1993) (quoting Johnson
v. Zerbst, 304 U.S. 458, 464 (1938)); see also Williams v. Dieball,
724 F.3d 957, 961 & n.2 (7th Cir. 2013). In the criminal context,
the distinction between waiver and forfeiture is critical: while
waiver precludes review, forfeiture permits a court to correct
an error under a plain error standard. Olano, 507 U.S. at 731–
35; see also Fed. R. Crim. P. 52(b). This distinction between
waiver and forfeiture and its relevance have been less clear in
the civil context. In past decisions, we have not consistently
used forfeiture “as a way to signal whether plain error review
applies” in civil cases. Williams, 724 F.3d at 961 n.2.
We therefore clarify that “our ability to review for plain
error in civil cases is severely constricted,” as “a civil litigant
‘should be bound by his counsel’s actions.’” SEC v. Yang, 795
F.3d 674, 679 (7th Cir. 2015) (quoting Deppe v. Tripp, 863 F.2d
1356, 1360 (7th Cir. 1988)). Indeed, in civil cases, “we typically
will not entertain an argument raised for the first time on ap‐
peal, even for the limited purpose of ascertaining whether a
plain error occurred.” CNH Indus. Am. LLC, 882 F.3d at 705.
No. 16‐4234 27
Plain error review is available in civil cases only in the rare
situation where a party can demonstrate that: “(1) exceptional
circumstances exist; (2) substantial rights are affected; and
(3) a miscarriage of justice will occur if plain error review is
not applied.” Thorncreek Apartments III, LLC v. Mick, 886 F.3d
626, 636 (7th Cir. 2018) (quoting Willis v. Lepine, 687 F.3d 826,
839 (7th Cir. 2012)); see also Packer v. Trs. of Ind. Univ. Sch. of
Med., 800 F.3d 843, 849 (7th Cir. 2015); Yang, 795 F.3d at 679.
The determination of what circumstances fit these criteria is
solely within our discretion. Singleton, 428 U.S. at 121 (“The
matter of what question may be taken up and resolved for the
first time on appeal is one left primarily to the discretion of
the courts of appeals, to be exercised on the facts of individual
cases. We announce no general rule.”).
Even if Defendants had only forfeited their qualified im‐
munity defense, this case does not present an exceptional cir‐
cumstance that would warrant its consideration in the first in‐
stance on appeal. We do not aim today, however, to provide
a comprehensive list of considerations that meet the relevant
criteria. It suffices to say that Defendants may still assert the
defense in later proceedings on remand, even though they did
not properly preserve it in the district court for purposes of
this appeal. True, “the most appropriate time to raise the
qualified immunity issue is in a motion for summary judg‐
ment filed before allowing discovery.” Cygnar v. City of Chi‐
cago, 865 F.2d 827, 842 n.16 (7th Cir. 1989) (citing Walsh v. Mel‐
las, 837 F.2d 789, 799–800 n.7 (7th Cir. 1988)); see also Anderson
v. Creighton, 483 U.S. 635, 646 n.6 (1987). But we have previ‐
ously recognized that, “[a]lthough the benefit of immunity
from suit is effectively lost once the parties go to trial, we al‐
low plaintiffs to use ‘qualified immunity’ as a defense to lia‐
bility at any stage in the litigation.” Alvarado v. Picur, 859 F.2d
28 No. 16‐4234
448, 451 n.3 (7th Cir. 1988); see also Behrens v. Pelletier, 516 U.S.
299, 308–311 (1996) (allowing appeals resolving the question
of entitlement to qualified immunity at multiple stages of lit‐
igation). Thus, despite their failure to properly preserve the
issue for purposes of this appeal, Defendants may still invoke
the defense in a later motion before the district court. See Cyg‐
nar, 865 F.2d at 842 n.16; see also Oliver v. Roquet, 858 F.3d 180,
188 (3d Cir. 2017). With the defense still available to Defend‐
ants, there is no risk of a miscarriage of justice.
C. Defendants’ Other Arguments
Defendants argue that—if not on the scope of the Fourth
Amendment or qualified immunity—we should affirm the
judgment of the district court on multiple alternate grounds.
We do not reach any of these arguments.
To begin, Defendants argue that Plaintiffs failed to present
evidence of physical injury as the PLRA demands they must
in order to receive compensatory damages. See 42 U.S.C.
§ 1997e(e). Defendants did not raise this argument below, and
therefore have waived it for purposes of this appeal. Puffer v.
Allstate Ins. Co., 675 F.3d 709, 718 (7th Cir. 2012).
In addition, Defendants raise several other arguments that
Plaintiffs are not entitled to the relief they seek, namely, that
Plaintiffs lack standing for injunctive relief pursuant to City of
Los Angeles v. Lyons, 461 U.S. 95 (1983), that Plaintiffs are una‐
ble to obtain compensatory damages as to Hulett because they
brought no individual capacity claims against her, and that
Plaintiffs may not receive punitive damages because the jury
found for Defendants on their Eighth Amendment claim,
which mirrors the standard for punitive damages. Because
the district court granted summary judgment on Plaintiffs’
No. 16‐4234 29
Fourth Amendment claim, it did not assess any of these argu‐
ments pertaining to the availability of remedies as to that
claim. We thus also leave these issues for the district court’s
initial determination on remand.
Lastly, Defendants seek decertification of Plaintiffs’ dam‐
ages classes. Defendants did not file a cross‐appeal to chal‐
lenge the district court’s class certification decision. As a gen‐
eral rule, an appellee must file a cross‐appeal when he seeks
to expand his own rights under the district court’s judgment
or to diminish the rights of the appellant. United States v. Am.
Ry. Express Co., 265 U.S. 425, 435 (1924); Wellpoint, Inc. v.
Comm’r of Internal Revenue, 599 F.3d 641, 649–50 (7th Cir.
2010). As Defendants’ challenge to the district court’s class
certification decision seeks to diminish Plaintiffs’ rights, it is
outside the scope of our review absent a cross‐appeal. Cf.
Weitzenkamp v. Unum Life Ins. Co. of Am., 661 F.3d 323, 332 (7th
Cir. 2011) (“A cross‐appeal is appropriate only if a prevailing
party seeks a judgment different from that rendered by the
district court. … [C]ross‐appeals are not appropriate in rou‐
tine cases like ours that raise only alternate grounds for affir‐
mance of the judgment and not an independent issue like the pro‐
priety of class certification.” (emphasis added)); In re FedEx
Ground Package Sys., Inc. Emp’t Practices Litig., 792 F.3d 818,
820 (7th Cir. 2015) (per curiam) (indicating decertification of a
class was inappropriate where the opposing party dismissed
its cross‐appeal on that issue); Joseph v. Norman’s Health Club,
Inc., 532 F.2d 86, 88 n.2 (8th Cir. 1976) (refusing to reach the
question of class certification without a cross‐appeal).
III. Conclusion
“The continuing guarantee of … substantial rights to
prison inmates is testimony to a belief that the way a society
30 No. 16‐4234
treats those who have transgressed against it is evidence of
the essential character of that society.” Hudson, 468 U.S. at
523–24. We hold that the Fourth Amendment right to bodily
privacy is one of those rights that the Constitution guarantees,
even though in a significantly diminished way, within the
walls of a prison. It does not extinguish upon conviction.
The judgment of the district court is therefore REVERSED
and REMANDED for the district court to assess in the first in‐
stance whether Plaintiffs have demonstrated that an issue of
fact exists as to the reasonableness of the strip and body cavity
searches in question and for further proceedings consistent
with this opinion.
No. 16‐4234 31
EASTERBROOK, Circuit Judge, dissenting. My colleagues are
right to say that prisoners are entitled to protection from abu‐
sive guards. Misbehaving guards can be and are criminally
prosecuted, as the guard was in J.K.J. v. Polk County, 960 F.3d
367 (7th Cir. 2020) (en banc), and many prisoners have tort
claims. But our plaintiffs invoke the Constitution rather than
other sources of law. Constitutional protection for persons
serving sentences following convictions comes from the Cruel
and Unusual Punishments Clause of the Eighth Amendment,
not the Fourth Amendment.
The difference between the two is that liability under the
Eighth Amendment depends on showing an intent to punish
improperly, not simply on taking an action that a court deems
unreasonable. Compare Farmer v. Brennan, 511 U.S. 825 (1994)
(mental‐state component of Eighth Amendment), with Whren
v. United States, 517 U.S. 806 (1996) (objective standard under
Fourth Amendment). Plaintiffs’ claim under the Eighth
Amendment was submitted to a jury, which found for the de‐
fendants. The jury must have concluded that the defendants
did not intend to subject them to unjustified humiliation or
otherwise punish them in a way not permitted by the judg‐
ments of conviction. The jury’s verdict should end the case,
not open a new battleground in which judges (and perhaps
another jury) determine whether the acts were “reasonable.”
The sort of inquiry that my colleagues allow amounts to the
objective component of Eighth Amendment analysis without
the subjective component—a sort of Eighth Amendment lite.
That is not what the Fourth Amendment is about.
The Fourth Amendment provides: “The right of the peo‐
ple to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be
32 No. 16‐4234
violated”. It is hard to see how that rule can be applied to con‐
victed prisoners, for the judgment of conviction extinguishes
those very rights. Prisoners are removed from their houses,
and the jailers obtain custody of their persons; their persons,
papers, and effects are under constant supervision. People of‐
ten describe the Fourth Amendment as a guarantee of pri‐
vacy, but privacy is incompatible with imprisonment. Guards
must be watchful in the cells, in the yards, in the cafeterias, in
the showers, and even in the toilets, for violence may be
planned or perpetrated in any of those locations. Drugs,
weapons, and other contraband may be hidden or distributed
there.
Hudson v. Palmer, 468 U.S. 517 (1984), rejected a contention
that the Fourth Amendment applies within prison walls after
a conviction. What it said is worth repetition:
Notwithstanding our caution in approaching claims that the
Fourth Amendment is inapplicable in a given context, we hold
that society is not prepared to recognize as legitimate any subjec‐
tive expectation of privacy that a prisoner might have in his prison
cell and that, accordingly, the Fourth Amendment proscription
against unreasonable searches does not apply within the confines
of the prison cell. The recognition of privacy rights for prisoners
in their individual cells simply cannot be reconciled with the con‐
cept of incarceration and the needs and objectives of penal insti‐
tutions.
Prisons, by definition, are places of involuntary confinement of
persons who have a demonstrated proclivity for anti‐social crim‐
inal, and often violent, conduct. Inmates have necessarily shown
a lapse in ability to control and conform their behavior to the le‐
gitimate standards of society by the normal impulses of self‐re‐
straint; they have shown an inability to regulate their conduct in
a way that reflects either a respect for law or an appreciation of
the rights of others. Even a partial survey of the statistics on vio‐
lent crime in our Nation’s prisons illustrates the magnitude of the
No. 16‐4234 33
problem. During 1981 and the first half of 1982, there were over
120 prisoners murdered by fellow inmates in state and federal
prisons. A number of prison personnel were murdered by prison‐
ers during this period. Over 29 riots or similar disturbances were
reported in these facilities for the same time frame. And there
were over 125 suicides in these institutions. See Prison Violence, 7
Corrections Compendium (Mar. 1983). Additionally, informal sta‐
tistics from the United States Bureau of Prisons show that in the
federal system during 1983, there were 11 inmate homicides, 359
inmate assaults on other inmates, 227 inmate assaults on prison
staff, and 10 suicides. There were in the same system in 1981 and
1982 over 750 inmate assaults on other inmates and over 570 in‐
mate assaults on prison personnel.
Within this volatile “community,” prison administrators are to
take all necessary steps to ensure the safety of not only the prison
staffs and administrative personnel, but also visitors. They are un‐
der an obligation to take reasonable measures to guarantee the
safety of the inmates themselves. They must be ever alert to at‐
tempts to introduce drugs and other contraband into the premises
which, we can judicially notice, is one of the most perplexing
problems of prisons today; they must prevent, so far as possible,
the flow of illicit weapons into the prison; they must be vigilant to
detect escape plots, in which drugs or weapons may be involved,
before the schemes materialize. In addition to these monumental
tasks, it is incumbent upon these officials at the same time to
maintain as sanitary an environment for the inmates as feasible,
given the difficulties of the circumstances.
The administration of a prison, we have said, is “at best an ex‐
traordinarily difficult undertaking.” Wolff v. McDonnell, 418 U.S.
[539] at 566 [1974]; Hewitt v. Helms, 459 U.S. 460, 467 (1983). But it
would be literally impossible to accomplish the prison objectives
identified above if inmates retained a right of privacy in their cells.
Virtually the only place inmates can conceal weapons, drugs, and
other contraband is in their cells. Unfettered access to these cells
by prison officials, thus, is imperative if drugs and contraband are
to be ferreted out and sanitary surroundings are to be maintained.
34 No. 16‐4234
468 U.S. at 525–27 (cleaned up). Although the Justices spoke
of privacy in cells, everything they said is equally applicable
to privacy elsewhere in a prison. Since Hudson, none of the
Court’s other decisions has suggested that the Fourth Amend‐
ment applies to any aspect of prison life—if the inmate has
been convicted.
Pretrial detainees pose a different problem, because per‐
sons awaiting trial cannot be punished. Restrictions on their
liberty are proper only if essential to custody and institutional
order. That is why Bell v. Wolfish, 441 U.S. 520 (1979), and Flor‐
ence v. Board of Chosen Freeholders, 566 U.S. 318 (2012), applied
to pretrial detainees both the Fourth Amendment and the Due
Process Clause of the Fifth and Fourteenth Amendments.
Convicted prisoners, however, may be punished; they do not
retain the rights of detainees. That’s the principal point of
Hudson and is why the Justices rejected the prisoners’ Fourth
Amendment claim without thinking that they had modified
Wolfish.
In recent years the Court has repeatedly addressed the
question: How long after arrest does the Fourth Amendment
remain applicable? Although some decisions suggested that
the Fourth Amendment’s protections lapse when an arrested
person is presented to a judge, see, e.g., Wallace v. Kato, 549
U.S. 384, 389–92 (2007), more recent decisions have drawn the
line at conviction. A detainee retains rights under the Fourth
Amendment until conviction. See Manuel v. Joliet, 137 S. Ct.
911 (2017); McDonough v. Smith, 139 S. Ct. 2149 (2019). After
that, the Eighth Amendment sets the limits on institutional
management.
The judgment of conviction extinguishes privacy interests,
though other interests (such as avoiding gratuitous
No. 16‐4234 35
punishment) remain. If the Fourth Amendment applies to
prisoners after convictions, detainees and convicts end up
with the same rights. Yet Wolfish, Hudson, and many other de‐
cisions hold that these different categories of prisoners have
different rights while in custody.
Whitley v. Albers, 475 U.S. 312 (1986), rejects a contention
that a prisoner’s asserted interest in bodily integrity is covered
by a constitutional provision other than the Eighth Amend‐
ment. In the course of suppressing a riot, guards shot a pris‐
oner, likely unnecessarily. An excessive‐force claim by a free
person or a pretrial detainee is assessed under the Fourth
Amendment. See Tennessee v. Garner, 471 U.S. 1 (1985); Graham
v. Connor, 490 U.S. 386 (1989); Kingsley v. Hendrickson, 576 U.S.
389 (2015). But that is not how Whitley approached an exces‐
sive‐force claim. The Justices applied the Eighth Amendment
(I’ll return to how Whitley understands that provision) and re‐
buffed an invitation to derive rules from elsewhere, such as
the Due Process Clauses. Whitley held that the Eighth Amend‐
ment supplies the applicable rules for riot‐control operations
inside prisons—though it took care to observe that this was so
because the inmates were not “pretrial detainees or persons
enjoying unrestricted liberty” (475 U.S. at 327).
I recognize that Whitley considered the Due Process
Clauses (deemed inapplicable) and the Eighth Amendment
(found controlling) rather than the Fourth Amendment, but
that is because even the plaintiff seems to have recognized
that, in light of Hudson, the Fourth Amendment was off the
table. Whitley applies the Eighth Amendment, not the Fourth,
to a seizure (bullets count as seizures), so the majority’s dis‐
tinction between searches and seizures for intra‐prison events
36 No. 16‐4234
is not compatible with precedent—or with constitutional text,
for the Amendment covers both alike.
In explaining how the Eighth Amendment applies, Whitley
stressed the importance of its mental‐state requirement—that
is, the need to show that the defendants displayed “obduracy
and wantonness” (475 U.S. at 319). They added:
The infliction of pain in the course of a prison security measure …
does not amount to cruel and unusual punishment simply be‐
cause it may appear in retrospect that the degree of force author‐
ized or applied for security purposes was unreasonable, and
hence unnecessary in the strict sense.
Ibid. In other words, “reasonableness” is a bad standard for
assessing prison management. That rules out the Fourth
Amendment. The Court added:
Prison administrators … should be accorded wide‐ranging defer‐
ence in the adoption and execution of policies and practices that
in their judgment are needed to preserve internal order and disci‐
pline and to maintain institutional security. That deference ex‐
tends to a prison security measure taken in response to an actual
confrontation with riotous inmates, just as it does to prophylactic
or preventive measures intended to reduce the incidence of these
or any other breaches of prison discipline. It does not insulate
from review actions taken in bad faith and for no legitimate pur‐
pose, but it requires that neither judge nor jury freely substitute
their judgment for that of officials who have made a considered
choice.
Id. at 321–22 (cleaned up).
A reasonableness standard under the Fourth Amendment
withholds that deference. It transfers the effective decisions
from wardens and other prison managers to judges and juries.
My colleagues suggest that a measure of deference could be
preserved by making suitable adjustments to the definition of
reasonableness, but, aside from the objection to the Judicial
No. 16‐4234 37
Branch making up constitutional rules as we go along, the
problem remains that judges (and jurors) are not prison ad‐
ministrators. What an administrator may deem desirable,
even necessary, a juror may deem unwarranted. Jurors aren’t
trained in prison management and do not have to live with
the consequences of errors. But administrators must live with
those errors. Guards and prisoners may die if judicial second‐
guessing hampers prison security. Interfering in training ex‐
ercises—especially in training about how to search for contra‐
band—poses that risk.
My colleagues say that training sessions aren’t really
prison management at all, so we need not defer. I don’t un‐
derstand this. Earlier this year the court held in J.K.J. that
training for guards is constitutionally mandatory. Now it
turns out that training is so collateral to good management
that jurors (acting in the name of reasonableness) can design
training programs, and that everything Whitley and many sim‐
ilar cases have said about the need to give wardens leeway
can be put to one side.
Judges must be modest about their ability to manage other
institutions; we are generalists, after all, while wardens are
specialists. And it is risible to suggest that jurors, asked to
evaluate reasonableness, are more likely than wardens to pro‐
duce appropriate resolution of the conflict between personal
and institutional interests. If prisons are to enjoy the scope of
discretion that is essential to sound administration, while pro‐
tecting prisoners from sadistic conduct, the Eighth Amend‐
ment is the right tool for the job.