EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Friday, February 27, 2009

Lock Up: Northern District Of Illinois Grants Summary Judgement To Pretrial Detainees Based In Part On Subsequent Remedial Measure Evidence

The recent opinion of the United States District Court for the Northern District of Illinois in Young v. County of Cook, 2009 WL 436114 (N.D.Ill. 2009), contains interesting issues relating to the Fourth Amendment, the Equal Protection Clause, and the admissibility of evidence of subsequent remedial measures.

In Young, Plaintiffs Kim Young, Ronald Johnson, and William Jones, on behalf of themselves and two certified classes, sued former Cook County Sheriff Michael Sheahan and Sheriff's employees Callie Baird, Scott Kurtovich, and Salvador Godinez (collectively the Sheriff Defendants), as well as Cook County, under 42 U.S.C. § 1983. Those plaintiffs alleged violations of their Fourth and Fourteenth Amendment rights during the time they were confined as pretrial detainees at the Cook County Jail (CCJ). Cook County and the Sheriff Defendants thereafter moved separately for summary judgment, and the plaintiffs moved for partial summary judgment on the issue of liability.

For the most part, the plaintiffs were successful. The court found that the following facts were undisputed:

(1) men at CCJ have been routinely strip searched in groups of up to at least seventy-five individuals; (2) until approximately February 2007, there were no privacy screens in the hallway where the members of Class I were searched at the [Receiving Classification and Diagnostic Center (RCDC)]-meaning they were searched in full view of the other detainees in the group being searched FN8; (3) on occasion, bodily fluids have been present in the hallway where the searches of the Class I members occurred; (4) the members of Class I had, at times, no more than six inches of space between each other during the strip searches before the privacy screens were installed; (5) individuals in the group searches, prior to the installation of the privacy screens, would accidentally bump into and touch each other; and (6) prior to some time in 2006, men were searched using the less dignified bend-and-spread method, whereas women were searched using the squat-and-cough method.

So, how did Federal Rule of Evidence 407, which covers evidence of subsequent remedial measures, come into play?  Well, the plaintiffs wanted to introduce evidence that "[s]ometime after January 2007, a body scanning machine was also installed in the male section at the RCDC" and that  "[i]n or around February 2007, privacy screens were installed in the hallway where groups of men are strip searched at the RCDC."  Now, normally, this evidence would have been inadmissible under Rule 407, which indicates that:

When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction.  This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

The problem for the defendants, though, was that they "argue[d] that use of privacy dividers and body scanning machines were and are not always feasible for a number of reasons."  Consequently, the defendants controverted feasibility, and the judge was allowed to consider evidence of the above two subsequent remedial measures.

And based in large part on that evidence, the court was able to grant the plaintiff summary judgment on their Fourth and Fourteenth Amendment claims.  With regard to the plaintiffs Fourth Amendment claims, the court found that

In light of the [above] undisputed facts, the Court finds that the strip searches of the members of Class I before the privacy screens were installed at the RCDC were unreasonable and violated the Fourth Amendment as a matter of law. During that period, the class members, who were undergoing one of the most intrusive types of searches the government may permissibly conduct, were subjected to conditions that greatly enhanced their discomfort and humiliation. They were herded together with dozens of other men and forced to strip and bend over or squat in front of a large group, with less than a foot of space between them.

And with refard to the plaintiffs' Fourteenth Amendment claims, the court rejected all of the defendant's argument, including the argument that "women's menstrual cycles justify a policy affording female detainees greater privacy."  According to the court,

This is not an “exceedingly persuasive” justification for the difference between the male and female searches. Male detainees also present hygiene issues. The fact that some female detainees present one different or additional hygiene issue is insufficient to justify the stark gender-based differences between the search policies prior to the time the privacy screens were installed in the male search area at the RCDC.



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