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June 13, 2007 - Spokesman-Review (WA)

Some Strip-Searches Illegal

By Karen Dorn Steele, Spokesman-Review staff writer

Return to Drug War News: Don't Miss Archive

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 assailed the city's legal argument that such strip-searches aren't really city policy but are simply 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 elected City Council members, that her department's strip-search policies are "vague" and need revising, following questions by the elected officials in April about Burton's lawsuit.

Breean Beggs, the head of the [Spokane] 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.

City Attorney Jim Craven did not immediately return a call seeking comment.

In its controversial policy of routinely hitting back at litigants in civil rights claims, the city has countersued Burton-who is indigent and in jail at the Airway Heights Corrections Center-for "malicious prosecution."

Burton sued the Police Department and Detective Larry Bowman last year, asserting that 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.

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.

Karen Dorn Steele can be reached at (509) 459-5462, or by e-mail at

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