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Zavitsanos claimed privilege on the Julian letter, refusing to release all but two sentences of it. The Houston Pressobtained the entire document through an open records request. It begins by saying that recent case law concerning strip search policies at jails across the country prompted them to issue this "technical assistance bulletin":
"Federal courts have determined that blanket strip search policies are unconstitutional -- a violation of unreasonable search and seizure rights -- when no probable cause for contraband exists. Be aware that if your staff is routinely strip-searching all arrestees at intake as a matter of policy, you may be liable in a lawsuit for violation of arrestees' rights. If, however, there is reasonable suspicion that weapons, drugs or other contraband is being concealed on the arrestee's person, there is likely no violation being committed."
The force of the letter is that jails need to create and follow clear policies on strip searches to avoid litigation because there's been an awful lot in the past year alone. Last month New York City's mayor agreed to pay the largest civil rights settlement in history: $50 million to about 60,000 New Yorkers who claim they were unlawfully strip-searched. Many of them were first-time offenders arrested for minor things like loitering or walking through the subway turnstile two at a time.
In April a federal judge ruled that the Schenectady Police Department in New York had an unconstitutional policy of strip-searching all detainees. That decision came in the case of a man charged with disorderly conduct; he was forced to undress, hold his genitals and bend over in front of a female guard. And Kentucky residents received about $20 million in settlements after claiming to have been unlawfully strip-searched.
"There were thousands of folks that said they were improperly strip-searched," Sabatine says. "It's really hard to disprove that a person was not. Once the litigation starts, it turns into a witch-hunt with everybody showing up saying they were illegally or improperly strip-searched. They see a very deep pocket, and they try to take advantage of it."
Which is what Zavitsanos says is happening in Fort Bend County. He says there weren't any complaints about strip searches until word of the juicy New York City settlement hit the newsstands. McDowell says that is absolutely untrue, his cases were filed in January -- four months before the New York City settlement. Regardless, the commission put together a strip search packet for jailers needing help developing policies. Sent to about a dozen jails, the packet includes a game-boardlike decision tree Sabatine created five years ago. It can be posted for step-by-step help in determining whether a person should or should not be given more than a pat-down.
In his "risk management" seminar, Sabatine discusses "a continuum of search" that starts with simply asking people to voluntarily give up anything they shouldn't have. His jail has a "second chance box," located behind a screen in the booking area. It's a standard mailbox (provided by the post office) where arrestees can drop drugs, razor blades or any contraband without being charged. Some jails employ more high-tech measures like X-rays, handheld metal detectors, or "the Boss," a chair with a metal detector in the seat. Sabatine suggests opaque privacy screens behind which the prisoners can change clothes. That way guards can see if someone is sticking something somewhere they shouldn't, but the person feels less exposed.
Still, in the last month Sabatine has seen jails trying to circumvent the law by doing things that aren't technically strip searches, but involve guards staring at inmates naked. Like ogling people while they shower or forcing them to get naked and walk toward them to exchange civilian clothes for prison whites. "Either they're uninformed or they feel their practice is close enough to what the law is so they're justified in doing so," Sabatine says. "They continue to try to grab for reasons to do the search."
On January 20 McDowell and associate Leland Irwin filed the first two lawsuits against Fort Bend County. Gary McMullen is a 25-year-old divorced father who was pulled over driving home from a party. His petition says that after a series of roadside sobriety tests, McMullen was booked and strip-searched. He wants a jury trial and compensation for the mental anguish, emotional pain and torment he has suffered. The notice says he's willing to settle for $100,000 and will take less if Fort Bend agrees to change its policy.
The second suit, filed the same day, is for Sabine Andrae, a German-born woman who's been a U.S. citizen since 1981. She lives in the Pecan Grove development in Richmond and was shopping at Wal-Mart when her child was accused of shoplifting. The Richmond Police Department arrested Andrae (even though she hadn't done anything) and transferred her to the Fort Bend sheriff's office, where she was strip-searched.
"Her case was dismissed real quick," says her defense attorney Chad Ellis. "It was dismissed before we got there." Ellis referred her case and many others that come to his office to McDowell. Andrae too is seeking a trial or a $100,000 settlement.
When they responded to the suits in early May, the county claimed governmental sovereign immunity, saying it cannot be sued. Officials deny that the plaintiffs were subjected to "an unlawful strip search."