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Strip-searches ruled illegal

A federal judge has declared unconstitutional Spokane’s policy of routinely letting its police officers strip-search suspects in the field without a warrant.

U.S. District Judge Robert Whaley, in an order issued Monday, said the 2005 strip-search of drug suspect John Burton in the West Central neighborhood was illegal.

The judge rejected the city’s argument that such strip-searches aren’t really city policy but are left to the discretion of Spokane Police Department officers, saying there is no case law that supports the city’s position and a hearing before a judge is required.

“Common sense and law tell us that forcing a person to stand naked and bend over in front of strangers is humiliating and most invasive of human dignity. Where there is no emergency or institutional threat, such as a jail setting, it is clear that our Constitution requires a neutral judge to decide if there is justification for such an indignity,” Whaley said in his order.

Spokane Police Chief Anne Kirkpatrick has already told the city’s Public Safety Committee, made up of City Council members, that her department’s strip-search policies are “vague” and need revising, after questions by the elected officials in April about Burton’s lawsuit.

Breean Beggs, head of the Center for Justice, the law firm appointed by Whaley to represent Burton, said he’s pleased with the ruling.

“We thought the law was clear – we’re glad the judge has confirmed that. The city just needs to follow the Fourth Amendment. You need to have a brief hearing before a neutral judge to do strip-searches in the field. The city let officers decide on their own,” Beggs said.

In a prepared statement, City Attorney Jim Craven said, “We are carefully reviewing the Court’s opinion and, in consultation with police and City administration, will be exploring all available options.”

In its controversial policy of routinely hitting back at litigants in civil rights claims, the city has countersued Burton – who is indigent and incarcerated at the Airway Heights Corrections Center – for “malicious prosecution.” The city has filed such countersuits for decades, according to a Spokesman-Review investigation published March 25.

Burton sued the Police Department and Detective Larry Bowman last year, saying his arrest and strip-search violated his constitutional rights. He had no attorney and was in jail on two drug charges when he filed his complaint. No drugs were found in the search.

In a March 22 order, Whaley cited “exceptional circumstances” when he appointed the Center for Justice to represent Burton. At that time, Whaley said Burton had shown he had a “high likelihood of success on the merits” and was unable to effectively represent himself.

Assistant City Attorney Ellen O’Hara, in oral arguments before Whaley in May, said the Police Department has no written policy addressing strip-searches of suspects who aren’t in jail or prison – and that officers simply use their discretion when deciding to perform warrantless searches during an arrest.

John Sklut, who argued the case for the Center for Justice, said the 9th U.S. Circuit Court of Appeals has ruled such invasive searches conducted outside of a jail or prison are unconstitutional.

Sklut criticized the Spokane Police Department for failing to properly train its officers in constitutional law, noting that Seattle has a “specific policy” that strip-searches must be conducted in an institutional setting.

After Whaley’s ruling this week, Burton’s case could go before a jury to determine the monetary damages he’s entitled to for the illegal search. The city could appeal, or the case could be settled.

“I’d imagine it would settle. We’ve told the city, let’s sit down and figure this out,” Beggs said.