New York Law School

Art Leonard Observations

D.C. Officials May Face Liability for Mistreatment of Transgender Detainee

Posted on: May 15th, 2013 by Art Leonard No Comments

A transgender woman complaining of mistreatment by District of Columbia police and federal marshalls after her arrests has convinced a U.S. District Judge that she has pled viable 4th and 5th Amendment complaints against several officers and the D.C. city government.  Ruling on May 13, Judge Ellen Segal Huvelle did dismiss some charges against some defendants, but allowed most of Patti Shaw’s claims to continue to discovery and, perhaps, to trial.

 Shaw states in her complaint that she is a “transgender woman” who “has undergone sex reassignment surgery,” and “had her sex legally changed to female.”  Since her change of sex designation, fully documented, she has been arrested three times.  Each time, both the D.C. policy and federal marshalls refused to treat her as a woman, placing her in confinement in the men’s area of Metro Police Department’s Central Cellblock, putting her in situations where she felt herself to be in danger from male detainees, subjecting her to sexist comments and unwanted touching, including physically intrusive contact strip searches.  These problems continued on occasions when she was remanded to the custody of the U.S Marshall’s Service.

 The events in issue occurred in 2009 and 2012.  Some of the named defendants moved to dismiss claims against them on grounds of qualified immunity.  Under the qualified immunity doctrine, the Supreme Court has established that government officials may not be held liable for unconstitutional conduct unless it was clearly established at the time of their actions that their conduct was unconstitutional.  The defendant corrections officers in this case argued that at the time of the events there were not any federal appellate rulings clearly establishing that their actions regarding a transgender woman detainee would violate the 4th and 5th amendments of the Constitution.

 Judge Huvelle accepted Shaw’s argument that this was the wrong analysis.  Rather, Shaw argued, as she was recognized as a woman by the District of Columbia, the issue was whether the government officials knew or should have known that their treatment of her was inappropriate for a female arrestee, in clear violation of rules and guidelines covering the treatment of female detainees.

 For example, on the 4th Amendment claim, which concerned the physical searches, including strip searches, to which Shaw was subjected, the Marshall Service defendants argued that “at the time of the searches in June 2009, December 2009, and June 2012, the state of the law was not clearly established as to the classification and searches of transgender female detainees.”  “The flaw in this argument,” wrote Judge Huvelle, ” is that it fails to account for the fact that the plaintiff is legally a female and that the USMS employees knew it.  Thus, contrary to what the USMS defendants argue, the searches of plaintiff were ‘cross-gender’ searches.  As the law on cross-gender searches is relevant, the absence of cases directly addressing the constitutional bounds of searches of transgender arrestees is not dispositive.”

 The court also found that the existing cases on “cross-gender” searches — that is, searches where a detainee is subjected to physical search by a law enforcement officer of the opposite sex — did not support the defendants’ position that the searches they made were presumptively “reasonable” for 4th Amendment purposes.  In each of the cases they cited, the search was not as “intrusive” as the searches performed on Shaw.  Indeed, the officers allegedly crossed the permissible line by the way in which they touched her, subjecting her to intimate contact.  “In similar cases,” wrote the judge, “courts have consistently held that, absent emergency circumstances, such a search is unreasonable.”  Another factor cutting against reasonableness was the conduct of these searches in the view of male detainees and corrections officers, rather than in a private setting.  Quoting one from pithy statement by the 9th Circuit, the judge wrote that “the litany of cases over the last thirty years has a recurring theme: cross-gender strip searches in the absence of an emergency violate an inmate’s right under the Fourth Amendment to be free from unreasonable searches.”  Judge Huvelle also pointed out that the Marshall Service’s own regulations “do not permit physical touching of any kind for either an ‘in-custody’ or a ‘strip search.’”

 Concluded the judge, “Based on the alleged facts, which must at this stage be accepted as true, the Court concludes that a reasonable officer would have known that a cross-gender search of a female detainee by male USMS employees that included intimate physical contact, exposure of private body parts, and verbal harassment, all in front of male detainees and male USMS employees in the absence of an emergency, was unreasonable.”

 Shaw’s 5th Amendment claims assert that the conditions of confinement to which she was subjected violate her due process rights by placing her in danger of harm.  “Specifically,” noted Judge Huvelle, “she objects to the USMS’s decision to hold her in a bullpen with male detainees, have her urinate in a cup in front of male detainees, transport her while chained to male detainees, and have her searched by male USMS employees and the MPD’s decision to hold her in a single cell in the male area of the Central Cellblock.”  Judge Huvelle’s analysis here was similar to that in the 4th Amendment claims: the issue was whether treating a female detainee in this way posed a “substantial risk of harm.”  Again, Judge Huvelle rejected the argument that the lack of appellate cases concerning due process claims by transgender detainees was sufficient to protect the defendants from liability based on qualified immunity.

 “Defendants’ arguments against miss the significance of the fact that plaintiff is legally a female and that defendants are alleged to have known that.  Thus, the absence of transgender cases is not itself dispositive. . .  Rather, as with the Fourth Amendment claim, plaintiff’s ‘clearly established’ rights include the same rights as any other female detainee,” and the cases involving treatment of female detainees are not “irrelevant,” as the defendants had argued.   Once again, Judge Huvelle noted that District and federal rules and guidelines for treatment female detainees were allegedly routinely violated in dealing with Shaw.  Although such rules and guidelines do not set a standard of constitutional violations, she conceded, they certainly are relevant to the question whether the defendants should enjoy immunity because they would not know that their conduct was improper.

 The court considered various other subsidiary issues and determined that certain claims against certain defendants should be dismissed, however in the end substantial federal constitutional claims remain against several District and federal officers, as well as the District of Columbia as a municipal defendant.  Shaw is represented by Jeffrey Louis Light, a D.C. solo practitioner.  The defendants are represented by attorneys from the U.S. Attorney for D.C. and the Justice Department.  In light of this ruling on dismissal motions, a settlement of Shaw’s claims would seem advisable, although, of course, if the case continues, Shaw will need to provide proof her factual allegations in order to win relief from the court.

Tags: , ,

Leave a Reply