Qualified Immunity

Prison Guards Who Forced Menstruating Visitor To Expose Vaginal and Anal Cavities Are Protected by Qualified Immunity

A federal court said it did not violate her Fourth Amendment rights.

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In July of 2016, Angela Calloway arrived at the Augusta Correctional Center in Craigsville, Virginia, to visit with an inmate, Travis Talbert. She left soon after, having been told to remove her clothes and tampon so prison guards could inspect her vaginal and anal cavities for contraband.

Their search yielded no drugs, and Calloway has not returned to the prison since. 

A federal court ruled last week that the guards involved in that invasive search did not violate the Fourth Amendment, simultaneously upholding a lower court ruling that awarded qualified immunity to the government employees. Calloway will thus not be permitted to sue over the incident.

"[T]he standard under the Fourth Amendment for conducting a strip search of a prison visitor—an exceedingly personal invasion of privacy—is whether prison officials have a reasonable suspicion" to believe such a search is necessary, writes Judge Paul V. Niemeyer of the U.S. Court of Appeals for the Fourth Circuit. In Calloway's case, that included the following: an unidentified inmate said two days prior that Talbert was "moving" contraband; a guard saw Calloway briefly touch her pants; that same guard had twice previously identified contraband smugglers.

After briefly meeting with Talbert in the visitation room, Calloway was removed by the guards and given the news. One officer "indicated that if Calloway did not consent to a strip search, she would not be permitted to come back to the prison," notes Niemeyer. According to Calloway, she was "bawling crying and didn't understand what was going on."

Upon entering the bathroom, Calloway was told to remove her clothes and "lift her arms and breasts, open her mouth, and lean over and shake her hair," which one guard also ran her hands through to check for drugs. The officers had her "squat and cough" to examine her anal and vaginal cavities; Calloway was menstruating, requiring her to remove her tampon, which the guards also inspected.

In order to successfully overcome a qualified immunity defense, plaintiffs must clear two hurdles: They must prove that their constitutional rights were indeed violated by a state actor and that such a violation has been "clearly established" in previous case law. In other words, a court may rule that the defendant unequivocally infringed on someone's civil rights while subsequently taking away a victim's right to sue—if the alleged misbehavior has not yet been outlined in a prior decision. Two officers in Fresno, California, for example, were afforded qualified immunity after stealing $225,000, because the U.S. Court of Appeals for the Ninth Circuit could not pinpoint a court precedent saying that it is unconstitutional for cops to steal.

But the Fourth Circuit did not clear Calloway on even the first prong, something that Judge James A. Wynn took issue with in a lengthy dissent.

"[V]iewing the evidence in a light most favorable to Ms. Calloway shows that the officers' lacked justification for initiating the search," he writes. 

Such a personally humiliating exercise requires more "individualized, particularized information," he argues. Wynn cites Leverette v. Bell (2001): "'Courts examining the constitutionality of physically intrusive searches have distinguished between strip searches, visual body cavity searches, and manual body cavity searches,'" he quotes. "Unquestionably, the search of Ms. Calloway's body—which included a visual inspection of her anal cavity and an order to remove her tampon from her vagina in front of two officers and place her used tampon in an officer's hand for inspection—was an intrusive search, more like a visual body cavity search than a standard strip search." The same precedent holds that a prison visitor "does not forfeit all privacy rights" when he or she enters.

That addresses the first qualified immunity prong. What about the second?

"The majority wisely does not address the qualified immunity analysis beyond concluding the search was supported by reasonable suspicion," Wynn writes. "But even if the majority were to reach qualified immunity, I believe the right of prison visitors to be free from strip searches absent reasonable suspicion was clearly established at the time of this search." He again cites Leverette, which requires that a visual body cavity search be accompanied by such suspicion.

Calloway brought her claim under the Civil Rights Act of 1871, the landmark law that allows citizens to sue for civil rights violations. It provides (or is supposed to provide) the American public with appropriate recourse when state actors deny them their rights. 

But the jurisprudence around the legislation, also known as Section 1983, often does just the opposite. That's particularly relevant with the addition qualified immunity—an imaginative doctrine that the Supreme Court concocted out of thin air. Deference goes to the state, not to the victim.

"The question is whether—viewing the evidence in the light most favorable to Ms. Calloway—a reasonable jury could conclude the search was not supported by the individualized, particularized information required by the Fourth Amendment," Wynn writes. Unfortunately for Calloway, she will not have the privilege to find out.

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  1. How big is the menstruating visitor’s union?

    1. I figured Binyon included that description so we would know the visitor wasn’t a trannie. So this wasn’t discriminatory.

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  2. You expected a court to uphold your rights in the totalitarian age.

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  3. This is why we want MORE private prisons. No QI for those schmucks.

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  4. Whatever happened to those plexiglass barriers between prisoners and visitors that only allowed them to converse by phone? Were they just a theatrical convention?

    1. That depends on security level of the prison and what privileges the inmate has earned. Even in a close custody prison inmates can earn face to face visitation and can meet with visitors at a table in a commons area and touch them (usually a hug at the start and end of the visit). Some prisoners had to meet as you describe, but they were deemed a security risk and the in-person visit could be offered as an incentive to clean up their behavior (i.e. drop gang affiliation or complete a certain program).

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  5. According to Calloway, she was “bawling crying and didn’t understand what was going on.”

    In the Prison Industrial Complex, the assembly line workers aren’t really put off by widgets doing that.

    1. The environment actually turns normal people into functional sociopaths. An excellent read about a far-left journalist who descends into hell and becomes his own worst nightmare in a few short months:

      https://www.motherjones.com/politics/2016/06/cca-private-prisons-corrections-corporation-inmates-investigation-bauer/

      1. I’ll read this when I get a chance. I am interested to see if the writer realizes that this isn’t limited to private prison employment.

      2. It’s a trash article by a trash writer for a trash magazine. The writer acknowledges that he behaved worse than the other guards. Most of the article can be summed up by “I was a peice of shit human when I was undercover as a guard, so they all are like that” and yes the author spicifically avoids talking about state run prisons, because that doesn’t fit the narrative

  6. LMFAO I love this country 😀

  7. “Two officers in Fresno, California, for example, were afforded qualified immunity after stealing $225,000, because the U.S. Court of Appeals for the Ninth Circuit could not pinpoint a court precedent saying that it is unconstitutional for cops to steal.”

    LAUGHING. MY. FUCKING. ASS. OFF.

    1. That was the 9th circuit so not really surprising. Extremely funny but hot shocking.

  8. It needs to end immediately. Maybe cops would think a bit more before doing this crap if they actually might have to face consequences. It would be good to instill a bit of fear in them.

    1. Crying about something, snowflake? 😀

    2. All she had to do was say no and leave. There is no one I want to see bad enough that I would go through that to see them.

      1. Yes, a visitor can leave when they like, but the prison does not have to allow anyone access unless they are willing to abide by prison rules. When I worked for a prison only medical staff could do a cavity search, so I don’t know if the policy is different here or if, just maybe, there is some exaggeration by either the writer or the woman relating the story.

  9. This is impossible. It is a state run prison where everything is on the up and up and there is never any wrong doing. It’s not one of those icky private prisons that are automatically bad because all profits are evil

  10. The “menstruating” part makes it extra embarrassing, but it really doesn’t impact the legal analysis. The guards have no ability to discern this before initiating a search.

    It all comes down to the standard for such a search among prison visitors. It doesn’t sound like the standard is any clearer than it is anywhere else in the US.

    Cops use magic words like “jesture” and “furtive” and “reaching” and because they use the prescribed phraseology, their opinion is unassailable.

    The problem here seems to be the standard. It isn’t “all visitors may be subject to invasive searches”. And it isn’t “get a warrant”. It is some “reasonable” median. Which means nobody can know the standard, and the system will ensure that they protect their own… Unless they do something that embarrasses the system. Then they get fed to the wolves.

    This, of course, means that nobody is held to true account, no abuses are prevented, and probably only people who don’t actually deserve it will be steamrolled by the system.

    1. “All of Human History in a Nutshell”
      by Cyto

  11. Love the clickbait title of this article, nice one Reason! Also, she could have walked out, then sued with the same complaint minus the embarrassing interlude.

  12. “Womenstruating” you sexist fucks. Check your privilege.

    1. Ah, but you forget, men can menstruate now

  13. Of course constitutional rights were not violated.
    As of the last inauguration, there are no constitutional rights.

    1. This happened in 2016…when Chocolate Jesus was emperor.

  14. Let me add that to my list of jobs I don’t want.

    1. I don’t know. Was she hot?

  15. Fuck the state. If there were any justice, those guards and the judges who defended them would all have their heads on pikes.

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  17. Three weeks after Biden/Pelosi/Schumer imposed martial law around the DC Capitol, Reason still hasn’t published an article criticizing the Democrat’s nonlibertarian totalitarian police state.

    1. That’s what happens when you try and fail to kill someone.

      No matter how much you ask to be invited back to discuss your “ideas.”

      1. Whiny bitch-boy clingers with vengeful darth vader syndrome are among my favorite casualties in the war on who smashes each others sand castle first.

      2. You have to be a parody.

  18. Women insist on being treated equally until they are treated equally.

    1. It’s kind of a rough approximation rather than a strict principle.

      Equally with respect to basic rights. They better have all the same rights you do.

      And then maybe a couple extra ones, just for good measure. Having different plumbing means your circumstance is different. Equality can mean you end up with roughly the same level of misery after a prison search, depending on where you started.

      1. I love it when clinging snowflakes are crying about their unfulfilled fairytale fantasies.

  19. Qualified immunity need to end completely for every government employee, judge, legislator, and official.

    The only item I would add to provide a level of protection against frivolous lawsuits is to add the option for a jury (not judge) to penalize the plaintiff if the lawsuit is unanimously deemed bogus by the jury.

    If the jury unanimously rules that the plaintiff filed a bogus lawsuit and decides it is egregious enough that the plaintiff should be subject to penalties, then the plaintiff would be become the defendant in a new court hearing.

    This new court hearing would have a new jury and new judge. The previous plaintiff (now defendant) would have an opportunity to present their case that the original lawsuit was not bogus and without malice.

    The new jury would decide if the plaintiff (now defendant) will be subject to penalties and if so make recommendations. The new judge would then sentence the plaintiff (now defendant) according to law and recommendations of the new jury.

    This would apply to all lawsuits, and would add a check and balance against frivolous lawsuits.

  20. I have to agree with the court. This isn’t a person who was randomly picked off the street. She was in a secure facility which has a problem with drug smuggling. The guards had a witness claim that the woman was smuggling contraband. They suspected she was due to her actions. What more reasonable suspicion could be required that doesn’t amount to a blanket ban on searching guests?

    “Reasonable” is a double-edged sword in that the standard cannot demand the impossible. What more can be required before a search is allowed?

    And, even if it did, this is one case where qualified immunity should be applied. The definition is inherently murky, and so there is legitimate and reasonable disagreement as to how the law can be applied. While qualified immunity has been turned into a joke due to its abuses, it does serve a legitimate purpose.

    1. Agreed. I’m not seeing the outrage here. Is having a period a get out of cavity searches card? Nope. Neither is crying like a little girl.

      All she had to do was put on her big girl face, and decide whether the visit (Which she wasn’t entitled to.) was worth the indignity, and then live with the decision.

  21. I am assuming that the people who conducted the search were female, but the story doesn’t directly say. Why not? Obviously, if they were male, then this was a massively greater abuse.

  22. Can a person voluntarily give up his/her Constitutionally guaranteed rights?

    1. Sure, people waive their right to a jury trial all the time.

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