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The search may be "an inconvenience," Zavitsanos says, but he insists that it wasn't a big deal. "It's not like we're stopping people on the street and strip-searching them, or making them disrobe in the back of a paddy wagon," he says.
McDowell says the county was searching all men as well as women. He's filed two suits against the county and plans to file about 15 more this month. Most of the cases involved those stopped for simple DUIs or minor traffic violations that he insists did not warrant a strip search. His phone continues to ring with more potential clients.
"I'm sure they will prevail," says Will Harrell, executive director of the Texas ACLU. "Police have tried to do this around the country. It's just brute force and bully tactics to intimidate."
Strip searches have always been a part of prison history, says Ray Sabatine, director of community corrections in Lexington, Kentucky. He travels the country giving strip-search seminars to county jails, discussing when they can and cannot be legally conducted. "People get real upset over not being able to strip-search [everyone]," Sabatine says. "The courts have said you can't do it. You just can't do it anymore."
Still, officers argue that blanket strip searches keep jails safe for inmates; they prevent people from bringing in drugs, knives or guns. Sabatine has seen arrestees who have syringes stuck up their asses, or have inserted small pistols in their vaginas.
When drugs get inside jails, prisoners can overdose and die. Sabatine has had to call parents and say their child died in his jail from drugs his guards let inside. Sheriffs don't like making those phone calls, he says, so many started doing blanket strip searches to make sure contraband didn't get in.
Jails seemed safer, but the law changed in the 1980s when a Utah woman sued after she was picked up for her husband's traffic tickets and strip-searched. Six years ago the Fifth Circuit Court of Appeals upheld a district court in Stewart v. Lubbock, a Texas case that found it was unconstitutional for both a woman arrested for public intoxication and another arrested for writing a bad check to have been strip-searched.
In more and more cases across the country, courts have forbidden officers from strip-searching people charged with misdemeanors unless they have a reasonable suspicion that the suspect is hiding something.
The idea is that a first-time offender isn't planning to be arrested, so he won't think to hide things on his body, since normally people don't use their asshole as an extra pocket. "That's why in a minor offense it's really not justifiable to put them through a strip search," Sabatine says. But a person who's been out of custody and knows he has to return might have something he wants to sneak inside.
Reasonable suspicion is fairly loose and hard to define, making some cases easier calls than others. For instance, if a person has repeatedly been charged with carrying a concealed deadly weapon, it's likely he might have another. Or if a dealer is arrested for carrying drug paraphernalia, it makes sense that he might have swallowed or hidden drugs on him. Then there are trickier situations, e.g., a person may not be strippable based on his prior record, but he may be suicidal and the jailer has to take away instruments of suicide. "In most cases that's clothing," Sabatine says. "You run into some dilemmas."
Zavitsanos claims the county was in compliance with the state's strip search policy. "Fort Bend County was not doing this because they got any great thrill about this; they were doing this because there [are] clearly defined parameters of what is and is not acceptable by the Texas Commission on Jail Standards. And they indicated that until recently, strip searches were part of the process," Zavitsanos says. "They have done an about-face and now indicate that strip searches may not be appropriate in all circumstances."
The commission's policy, he says, changed two months ago; Zavitsanos reads aloud from a letter that Terry Julian, the executive director, sent Fort Bend County dated April 17, 2001: "Although in the past, blanket strip search policies have been approved in the name of safety and security, it is no longer wise to continue such a policy."
He says the letter to Sheriff Milton T. Wright Jr. was a "directive" the commission issued to immediately stop strip searches that had heretofore been acceptable. When he takes it out of context, it sounds like Julian was talking about the recent past, but the commission says its policy hasn't changed in 15 years, and that the letter was not a directive to stop blanket searches but rather a reminder that the law says they can't be done.
"Some jails still believed the county jail could strip-search anybody they wanted to just in the name of security," says Christopher Medici, research specialist for the commission. "This has been a refresher in what the law says you can and can't do."
Medici says that after this spring's media coverage of mass litigation on unlawful strip searches, he heard that some county jails in Texas were stripping everyone that walked through the door. That's why Julian mailed a memo to all 235 counties. "It was a matter of getting everybody on board," Medici says. "They were doing strip searches on anybody and everybody they wanted to."