Delores Henry v. Melody Hulett

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 16‐4234

DELORES HENRY, et al.,

Plaintiffs‐Appellants,

v.

MELODY HULETT, et al.,

Defendants‐Appellees.

____________________

Appeal from the United States District Court

for the Central District of Illinois.

No. 12‐CV‐3087 — Richard Mills, Judge.

____________________

ARGUED MAY 14, 2020 — DECIDED AUGUST 11, 2020

____________________

Before SYKES, Chief Judge, and FLAUM, EASTERBROOK,

MANION, KANNE, ROVNER, WOOD, HAMILTON, BARRETT,

BRENNAN, SCUDDER, and ST. EVE, Circuit Judges.

ST. EVE, Circuit Judge. Plaintiffs—a class of more than 200

current and former female inmates at Lincoln Correctional

Center—brought this action following mass strip searches

conducted as part of a cadet training exercise in 2011. They

contend that the circumstances of the searches—particularly

2 No. 16‐4234

the intrusive and degrading manner in which they occurred—

violated their Fourth and Eighth Amendment rights.

Defendants—various prison officials—moved for sum‐

mary judgment before the district court, arguing that our cir‐

cuit’s prior decisions foreclosed Plaintiffs’ Fourth Amend‐

ment claim. The district court agreed, concluding that, under

Johnson v. Phelan, 69 F.3d 144 (7th Cir. 1995), and King v.

McCarty, 781 F.3d 889 (7th Cir. 2015) (per curiam), convicted

prisoners do not maintain a privacy interest during visual in‐

spections of their bodies. A divided panel of our court af‐

firmed that decision, following the same reasoning. We

granted Plaintiffs’ petition for rehearing en banc and vacated

the panel’s opinion and judgment.

We hold that the Fourth Amendment protects a right to

bodily privacy for convicted prisoners, albeit in a significantly

limited way, including during visual inspections. We there‐

fore reverse the district court’s entry of partial summary judg‐

ment for Defendants on Plaintiffs’ Fourth Amendment claim

and remand for further proceedings.

I. Background

A. Factual Background

We consider the facts in the light most favorable to Plain‐

tiffs, the nonmoving parties, as we must do when reviewing

a district court’s grant of a summary judgment motion. Hall v.

City of Chicago, 953 F.3d 945, 950 (7th Cir. 2020). On March 31,

2011, administrators at Lincoln Correctional Center—a me‐

dium security facility of the Illinois Department of Correc‐

tions (“IDOC”) in Logan County, Illinois, housing approxi‐

mately 1,000 female inmates—held a cadet training exercise.

This training exercise simulated a “mass shakedown”—a

No. 16‐4234 3

practice where IDOC employees search inmates’ living areas

and perform strip searches of the inmates’ persons to find

contraband. Lincoln Warden Melody Hulett testified that she

could not “think of any reason other than the training of ca‐

dets that [she] ordered a shakedown on March 31st, 2011, at

the Lincoln facility.” No evidence in the record indicates the

presence of an ongoing emergency or heightened concern on

the day that the training exercise took place.

Orange Crush tactical team members, cadets from the

IDOC training academy, and correctional officers at Lincoln

carried out the mass shakedown. Orange Crush members

donned full riot gear—wearing helmets, armored vests, and

military boots and carrying batons, pepper spray, and shields.

After attending a briefing, Orange Crush members, correc‐

tional officers, and cadets stormed two housing units—ones

that Hulett chose at random—banging their batons on the

walls, doors, and their hands. As the exercise began in the

early morning, correctional officers and cadets yelled at in‐

mates to wake up and form a line.

Correctional officers and cadets lined up 200 of the in‐

mates in rows, forced them to stand facing the wall, called

them “bitches,” and threatened to put them in segregation if

they were not quiet. Cadets practiced handcuffing prisoners.

Some elderly prisoners cried in pain as a result of standing for

a long period while handcuffed. Prisoners are typically hand‐

cuffed at Lincoln only when sent to the segregation unit for

committing a serious violation of a prison rule.

The officers directed the women to the gym while scream‐

ing obscenities at them and calling them sexually derogatory

names. In the gym, correctional staff forced the women to

stand facing the wall, shoulder to shoulder. Orange Crush

4 No. 16‐4234

members and other officers ordered cadets to perform strip

searches on groups of four to ten women at a time. Prisoners

were required to stand until cadets strip searched them—in

some cases waiting five to seven hours. The women could not

sit, get a drink of water, or use the restroom for the duration

of the training exercise.

Female cadets performed the strip searches, which oc‐

curred in a bathroom and beauty shop adjacent to the gym.

The bathroom was open to the gym, allowing many male cor‐

rectional officers and cadets to see the strip searches taking

place. The beauty shop was also visible from the gym and had

mirrored walls, allowing those passing by to witness the strip

searches. As a result, many people who were not performing

the strip searches nevertheless observed the female inmates.

When cadets strip searched the women, they forced them

to remove all clothing and stand in a line, nearly shoulder to

shoulder. Officers and cadets ordered the women to raise

their breasts, lift their hair, turn around and bend over, spread

their buttocks and vaginas, and cough several times. Women

were forced to stand naked for as long as fifteen minutes, far

longer than a typical strip search because of its group nature.

During the searches, correctional officers made demean‐

ing and derogatory insults, calling Plaintiffs “dirty bitches.”

One commented: “No man wants to be with you because you

smell like death.” Plaintiffs declared that they received com‐

ments like “Your Pussy stinks,” “You all are fucking disgust‐

ing,” and “I can’t believe women smell like this.”

The officers and cadets ordered menstruating prisoners to

remove feminine products and dispose of them on the floor

and in overflowing garbage cans, in full view of others.

No. 16‐4234 5

Women stood barefoot on the bathroom floor, which was

dirty with menstrual blood and other bodily fluids. While

they waited in the gym for the searches to finish, women did

not receive replacement feminine hygiene products and were

left to bleed on themselves for several hours, soaking through

their clothes and getting blood on their legs and feet.

During the strip searches, one inmate pulled three pills out

of her vaginal cavity. Prison officials recovered contraband

from the cells of approximately 45 of the 200 inmates. Dozens

of prisoners submitted grievances after the exercise. Many

never received a response. No one ever completed an internal

investigation, and no employee received any discipline.

B. Procedural Background

Ieshia Brown, Delores Henry, Patricia Philipps, and

Jacqueline Hegwood filed a putative class action alleging that

Warden Melody Hulett, Assistant Warden Russell Reynolds,

and a group of other supervisors and correctional officers vi‐

olated their Fourth, Eighth, and Fourteenth Amendment

rights. Plaintiffs sought damages and injunctive relief prohib‐

iting future public group strip searches during cadet training

exercises.

The district court certified several classes seeking both

damages and injunctive relief: (1) women subjected to the

March 2011 searches who remain in IDOC custody;

(2) women subjected to the March 2011 strip searches who

had been released from custody; and (3) women who are cur‐

rently incarcerated at Logan Correctional Center, the facility

that now houses all of the inmates formerly at Lincoln, or will

be incarcerated there in the future.

6 No. 16‐4234

Defendants moved for summary judgment. In their mo‐

tion, Defendants did not dispute that Plaintiffs’ factual asser‐

tions, if true, supported an Eighth Amendment claim. Re‐

garding Plaintiffs’ Fourth Amendment claim, however, De‐

fendants argued that, pursuant to Hudson v. Palmer, 468 U.S.

517 (1984), and Johnson, “there is no Fourth Amendment pro‐

tection against searches for prison inmates.” Defendants did

not raise a qualified immunity defense, nor did they argue

that Plaintiffs failed to present evidence of physical injury

pursuant to the Prison Litigation Reform Act (“PLRA”). See

42 U.S.C. § 1997e(e).

The district court granted summary judgment for Defend‐

ants on Plaintiffs’ Fourth Amendment claim. The court rea‐

soned that the strip searches here were limited to visual in‐

spections of the naked body, putting them squarely in line

with our decisions in Johnson and King. These cases, the court

concluded, foreclosed Plaintiffs’ Fourth Amendment claim.

Because the district court concluded that no relief was availa‐

ble to Plaintiffs under the Fourth Amendment, it did not per‐

form the reasonableness analysis that Fourth Amendment

claims demand.

The parties proceeded to trial on Plaintiffs’ Eighth

Amendment claim. The court instructed the jury that, to pre‐

vail, Plaintiffs had to prove that each defendant “was deliber‐

ately indifferent to a substantial risk that the strip searches

were being conducted in a harassing manner intended to hu‐

miliate and cause psychological pain.” During closing argu‐

ments, Defendants stressed: “To prevail, the plaintiffs need to

prove that these individuals intended for them to be harassed

and humiliated, for them to suffer psychological pain during

these strip searches, that they didn’t truly intend to find

No. 16‐4234 7

contraband to conduct the strip search.” The jury returned a

verdict for Defendants.

Plaintiffs appealed the district court’s summary judgment

ruling on their Fourth Amendment claim, arguing that the

district court erred in holding that the Fourth Amendment

does not protect prisoners during visual bodily searches. In

addition to defending the district court’s ruling, and after fail‐

ing to raise the issue below, Defendants argued that we

should affirm the district court’s decision because, even if the

Fourth Amendment does cover the searches at issue, they are

entitled to qualified immunity. Defendants further argued

that Plaintiffs are not eligible to receive the relief they seek for

several reasons, including that they may not receive compen‐

satory damages because they did not present evidence of

physical injury pursuant to the PLRA and that the district

court erred in certifying Plaintiffs’ damages classes. Plaintiffs

did not appeal the jury verdict on their Eighth Amendment

claim.

A divided panel of our court affirmed the district court’s

judgment. Relying on Hudson and King, the panel determined

that the strip searches fell outside of the protection of the

Fourth Amendment. We granted Plaintiffs’ petition for re‐

hearing en banc and vacated the panel’s opinion and judg‐

ment.

II. Discussion

We review a district court’s summary judgment ruling de

novo and consider the facts and draw all inferences in the

light most favorable to the nonmoving party. Hall, 953 F.3d at

950. Summary judgment is appropriate when “there is no

8 No. 16‐4234

genuine dispute as to any material fact and the movant is en‐

titled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

A. Fourth Amendment

We first address the issue at the heart of this appeal:

whether convicted prisoners retain a Fourth Amendment

right to privacy during visual inspections of their bodies. The

Fourth Amendment guarantees the “right of the people to be

secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures.” U.S. Const. amend. IV.

Strip and body cavity searches are “searches” of “persons”

under the meaning of the Fourth Amendment. Florence v. Bd.

of Chosen Freeholders of Cty. of Burlington, 566 U.S. 318, 326–27,

339 (2012); Bell v. Wolfish, 441 U.S. 520, 560 (1979).

The “touchstone” of the Fourth Amendment analysis is

whether a person has a “constitutionally protected reasonable

expectation of privacy.” Oliver v. United States, 466 U.S. 170,

177 (1984) (quoting Katz v. United States, 389 U.S. 347, 360

(1967) (Harlan, J., concurring)). The Fourth Amendment does

not protect every subjective expectation of privacy, but those

expectations “that society is prepared to recognize as ‘reason‐

able.’” Id. (quoting Katz, 389 U.S. at 361); see also Smith v. Mar‐

yland, 442 U.S. 735, 740–41 (1979). Assessing whether a search

violated a person’s Fourth Amendment rights “requires a bal‐

ancing of the need for the particular search against the inva‐

sion of personal rights that the search entails.” Bell, 441 U.S.

at 559.

The Supreme Court has yet to address the specific ques‐

tion of whether convicted prisoners maintain a reasonable ex‐

pectation of privacy in their bodies when it comes to visual

strip searches. In Bell v. Wolfish, while addressing a Fourth

No. 16‐4234 9

Amendment claim against a policy of routinely strip search‐

ing inmates after contact visits, the Court assumed without

deciding “that inmates, both convicted prisoners and pretrial

detainees, retain some Fourth Amendment rights upon com‐

mitment to a corrections facility.” 441 U.S. at 558.

Subsequently, in Hudson, the Court announced a limited

categorical rule: the “Fourth Amendment proscription

against unreasonable searches does not apply within the con‐

fines of the prison cell.” 468 U.S. at 526 (emphasis added). Im‐

portantly, Hudson left open the question of whether, and to

what extent, prisoners maintain a right to privacy in their

bodies. As we have stated before, we do not read Hudson so

broadly as to foreclose that right. See Sparks v. Stutler, 71 F.3d

259, 261 (7th Cir. 1995) (“Hudson did not require the Court to

decide what interests prisoners retain in their bodies, as op‐

posed to their surroundings.”); Forbes v. Trigg, 976 F.2d 308,

312 (7th Cir. 1992) (“[P]rison inmates retain protected privacy

rights in their bodies, although these rights do not extend to

their surroundings.” (citing Hudson)). Justice O’Connor’s con‐

currence in Hudson emphasized the narrowness of the Court’s

holding: the Court addressed specifically inmates’ “privacy

and possessory interests in personal effects” and “searches

and seizures of the contents of an inmate’s cell,” not the en‐

tirety of rights potentially available to inmates under the

Fourth Amendment. Hudson, 468 U.S. at 538 (O’Connor, J.,

concurring). Although our dissenting colleague asserts that a

conviction extinguishes all of a prisoner’s Fourth Amendment

rights, the Supreme Court has never extended the scope of

Hudson to exclude any aspect of a prisoner’s life beyond her

cell from the reaches of the Fourth Amendment. See King v.

Rubenstein, 825 F.3d 206, 215 (6th Cir. 2016) (“[N]othing in

10 No. 16‐4234

Hudson indicates the Supreme Court intended to abrogate a

prisoner’s expectation of privacy beyond his cell.”).

Although it did so in Hudson, the Court generally advises

“caution in approaching claims that the Fourth Amendment

is inapplicable” as a categorical rule in a particular context.

Hudson, 468 U.S. at 525 (majority opinion); see also id. at 537

(O’Connor, J., concurring) (“The Fourth Amendment ‘reason‐

ableness’ determination is generally conducted on a case‐by‐

case basis[.]”). We do not think it naturally follows that, be‐

cause the Court created a categorical exception to a prisoner’s

Fourth Amendment rights in her cell, the Court intended to

expand that rule to also deprive a prisoner of all Fourth

Amendment protections in her body. Indeed, the Supreme

Court has indicated several times that the privacy interest in

one’s body is more acute than the interest in one’s property.

See United States v. Flores‐Montano, 541 U.S. 149, 152 (2004)

(“highly intrusive searches of the person” implicate “dignity

and privacy interests” that “simply do not carry over to vehi‐

cles”); Wyoming v. Houghton, 526 U.S. 295, 303 (1999) (recog‐

nizing that searches of a person’s body receive “significantly

heightened protection” under the Fourth Amendment as

compared with property searches); Ybarra v. Illinois, 444 U.S.

85, 91–92 (1979) (holding that a search warrant for a tavern

and its bartender did not permit body searches of all the bar’s

patrons); United States v. Di Re, 332 U.S. 581, 587 (1948) (hold‐

ing that probable cause to search a car did not justify a body

search of a passenger). These decisions, at the very least, deter

us from assuming that one’s privacy interest in her property

is tantamount to one’s privacy interest in her person.

Although Hudson does not directly address the issue be‐

fore us, it frames our analysis. No “iron curtain” separates

No. 16‐4234 11

prisons from the Constitution. Hudson, 468 U.S. at 523 (quot‐

ing Wolff v. McDonnell, 418 U.S. 539, 555 (1974)). Thus, prison‐

ers must “be accorded those rights not fundamentally incon‐

sistent with imprisonment itself or incompatible with the ob‐

jectives of incarceration.” Id. And, as in all other Fourth

Amendment inquiries, prisoners retain Fourth Amendment

rights only if a “‘justifiable,’ a ‘reasonable,’ or a ‘legitimate ex‐

pectation of privacy’” is at stake. Id. at 525 (quoting Smith, 442

U.S. at 740). As a practical matter, certain rights must be re‐

stricted to make way for “a myriad of ‘institutional needs and

objectives’ of prison facilities.” Id. at 524 (quoting Wolff, 418

U.S. at 555); see also Bell, 441 U.S. at 545 (“[S]imply because

prison inmates retain certain constitutional rights does not

mean that these rights are not subject to restrictions and limi‐

tations.”).

In Hudson, the Court concluded that the right to privacy in

possessions and living quarters was one such right that must

succumb to these concerns, as it was “fundamentally incom‐

patible with the close and continual surveillance of inmates

and their cells required to ensure institutional security and in‐

ternal order.” 468 U.S. at 527–28. As a result, the Court held

that “society is not prepared to recognize as legitimate any

subjective expectation of privacy that a prisoner might have

in his prison cell.” Id. at 525–26. We similarly must now de‐

cide whether an inmate’s expectation of bodily privacy “is the

kind of expectation that ‘society is prepared to recognize as

reasonable,’” given the safety and security concerns inherent

to the prison context. Id. at 525 (quoting Katz, 389 U.S. at 361).

Strip searches are “demeaning, dehumanizing, undigni‐

fied, humiliating, terrifying, unpleasant, embarrassing, repul‐

sive, signifying degradation and submission.” Mary Beth G. v.

12 No. 16‐4234

City of Chicago, 723 F.2d 1263, 1272 (7th Cir. 1983). We have

recognized that “[o]ne of the clearest forms of degradation in

Western Society is to strip a person of his clothes. The right to

be free from strip searches and degrading body inspections is

thus basic to the concept of privacy.” Canedy v. Boardman, 16

F.3d 183, 185 (7th Cir. 1994). The privacy interest in one’s body

is clearly a heightened and fundamental one. And while

prison security requires officials to constantly monitor prison‐

ers’ cells, the same is not true of their unclothed persons.

We conclude that a diminished right to privacy in one’s

body, unlike a right to privacy in one’s property and sur‐

roundings, is not fundamentally incompatible with imprison‐

ment and is an expectation of privacy that society would rec‐

ognize as reasonable. We therefore join every other circuit to

have addressed the question and hold that the Fourth

Amendment protects (in a severely limited way) an inmate’s

right to bodily privacy during visual inspections, subject to

reasonable intrusions that the realities of incarceration often

demand. See, e.g., Cookish v. Powell, 945 F.2d 441, 445–46 (1st

Cir. 1991) (per curiam); Harris v. Miller, 818 F.3d 49, 57 (2d Cir.

2016) (per curiam); Parkell v. Danberg, 833 F.3d 313, 325 (3d

Cir. 2016); Bushee v. Angelone, 7 F. App’x 182, 184 (4th Cir.

2001) (per curiam); Hutchins v. McDaniels, 512 F.3d 193, 196

(5th Cir. 2007) (per curiam); Stoudemire v. Mich. Dep’t of Corr.,

705 F.3d 560, 572 (6th Cir. 2013); Franklin v. Lockhart, 883 F.2d

654, 656–57 (8th Cir. 1989); Nunez v. Duncan, 591 F.3d 1217,

1227–28 (9th Cir. 2010); Farmer v. Perrill, 288 F.3d 1254, 1259–

60 (10th Cir. 2002); Fortner v. Thomas, 983 F.2d 1024, 1030 (11th

Cir. 1993). Thus, when evaluating a prisoner’s Fourth Amend‐

ment claim regarding a strip or body cavity search, courts

must assess that search for its reasonableness, considering

“the scope of the particular intrusion, the manner in which it

No. 16‐4234 13

is conducted, the justification for initiating it, and the place in

which it is conducted.” Bell, 441 U.S. at 559.

We highlight that our holding today—that inmates main‐

tain a privacy interest, although diminished, in their bodies—

pertains to pretrial detainees and convicted prisoners alike.

Importantly, Hudson drew no distinction between these two

categories in its analysis; rather, the Court focused on the

heightened concerns over safety and security emblematic of

any detention facility. The Court explained:

[P]rison administrators are to take all necessary steps

to ensure the safety of not only the prison staffs and

administrative personnel, but also visitors. They are

under an obligation to take reasonable measures to

guarantee the safety of the inmates themselves. They

must be ever alert to attempts to introduce drugs and

other contraband into the premises which, we can ju‐

dicially notice, is one of the most perplexing problems

of prisons today; they must prevent, so far as possible,

the flow of illicit weapons into the prison; they must be

vigilant to detect escape plots, in which drugs or weap‐

ons may be involved, before the schemes materialize.

Hudson, 468 U.S. at 526–27. These concerns relate to both pre‐

trial detainees and convicted prisoners. The Court has in‐

structed that “[t]here is no basis for concluding that pretrial

detainees pose any lesser security risk than convicted in‐

mates. Indeed, it may be that in certain circumstances they

present a greater risk to jail security and order.” Bell, 441 U.S.

at 546 n.28; see also Florence, 566 U.S. at 334–37. As a result, the

principle of “‘mutual accommodation between institutional

needs and objectives and the provisions of the Constitution’

… applies equally to pretrial detainees and convicted

14 No. 16‐4234

prisoners.” Bell, 441 U.S. at 546 (citation omitted). Contrary to

the assertion of our dissenting colleague, neither Bell nor Flor‐

ence limited its holding solely to pretrial detainees. As stated

above, Bell expressly assumed that convicted prisoners retain

Fourth Amendment rights.

Indeed, many of our sister circuits have concluded that the

Fourth Amendment protects a limited right to bodily privacy

for convicted prisoners, specifically. See, e.g., Cookish, 945 F.2d

at 445–46 (concluding the principle that the Fourth Amend‐

ment applies to searches of convicted prisoners was well es‐

tablished); Harris, 818 F.3d at 58 n.2 (“Bell arose in the context

of a pretrial detainee strip‐search policy, but its framework is

equally applicable to convicted inmates challenging isolated

searches.”); Parkell, 833 F.3d at 324–25 (concluding that the

Bell balancing test applies to a convicted prisoner’s Fourth

Amendment claim); Hutchins, 512 F.3d at 196 (reiterating

“that the Fourth and not the Eighth Amendment governs

searches of prisoners”); Cornwell v. Dahlberg, 963 F.2d 912, 916

(6th Cir. 1992) (holding that “a convicted prisoner maintains

some reasonable expectations of privacy while in prison”);

Michenfelder v. Sumner, 860 F.2d 328, 331–32 (9th Cir. 1988)

(analyzing visual body cavity searches of convicted prisoners

for reasonableness); Fortner, 983 F.2d at 1030 (recognizing a

convicted prisoner’s right to bodily privacy under the Fourth

Amendment). We are not aware of any decision from another

circuit court that has announced this right extinguishes upon

conviction.*

* The cases our dissenting colleague cites do not stand for the contrary.

Wallace v. Kato, 549 U.S. 384 (2007), does not suggest that the Fourth

Amendment falls away when an arrestee appears before a magistrate. Ra‐

ther, Wallace held that the statute of limitations for a claim under § 1983

No. 16‐4234 15

1. The Interplay of the Fourth and Eighth Amendments

Defendants argue that recognizing a Fourth Amendment

right to bodily privacy, as we do today, undermines the va‐

lidity of the Eighth Amendment. Applying the Fourth

Amendment to strip searches of convicted inmates, they con‐

tend, nullifies the Eighth Amendment’s subjective intent re‐

quirement by permitting Plaintiffs to prove only the objective

unreasonableness of the searches. We conclude that the ap‐

plicability of the Fourth Amendment does not compromise

the heightened standard of the Eighth.

As Defendants concede, constitutional rights can co‐exist

inside the walls of a prison just as they do outside: prisoners,

like all citizens, benefit from the protection of numerous enu‐

merated constitutional rights, and these rights may some‐

times overlap. See United States v. James Daniel Good Real Prop.,

510 U.S. 43, 49 (1993) (“We have rejected the view that the ap‐

plicability of one constitutional amendment pre‐empts the

guarantees of another.”). As the Supreme Court explained in

Soldal v. Cook County, 506 U.S. 56 (1992), “Where … multiple

for a false arrest in violation of the Fourth Amendment begins to run at

the time the plaintiff becomes detained pursuant to such process, because

that process renders the imprisonment no longer false. Id. at 389–92.

McDonough v. Smith, 139 S. Ct. 2149 (2019), which likewise addressed the

accrual of a § 1983 claim, has even less to say on the post‐conviction status

of the Fourth Amendment. And, in Manuel v. City of Joliet, 137 S. Ct. 911

(2017), the Court’s only relevant statement—“once a trial has occurred, the

Fourth Amendment drops out”—reflected merely that “a person chal‐

lenging the sufficiency of the evidence to support both a conviction and

any ensuing incarceration does so under the Due Process Clause of the

Fourteenth Amendment,” rather than the Fourth. Id. at 920 n.8. The Su‐

preme Court has never announced nor implied that conviction destroys

the entirety of a prisoner’s Fourth Amendment rights.

16 No. 16‐4234

violations are alleged,” courts do not search for “the claim’s

‘dominant’ character” and limit their inquiry to one body of

constitutional law. Id. at 70. Instead, they “examine each con‐

stitutional provision in turn.” Id. True, the Supreme Court has

held unenumerated rights—such as those arising from the due

process clause—do not afford a prisoner greater protection

than the Eighth Amendment. Whitley v. Albers, 475 U.S. 312,

327 (1986). But this conclusion is specific to the Court’s sub‐

stantive due process jurisprudence—claims “covered by a

specific constitutional provision, such as the Fourth or Eighth

Amendment … must be analyzed under the standard appro‐

priate to that specific provision, not under the rubric of sub‐

stantive due process.” United States v. Lanier, 520 U.S. 259, 272

n.7 (1997); see also Graham v. Connor, 490 U.S. 386, 395 (1989)

(“Because the Fourth Amendment provides an explicit textual

source of constitutional protection against this sort of physi‐

cally intrusive governmental conduct, that Amendment, not

the more generalized notion of ‘substantive due process,’

must be the guide for analyzing these claims.”).

Accordingly, in several circumstances, the Court has

deemed that other, enumerated constitutional rights afford

prisoners certain protections alongside the Eighth Amend‐

ment safeguards against cruel and unusual punishment. See,

e.g., Wolff, 418 U.S. at 555–56 (recognizing due process rights

as applied to discipline received in prison); O’Lone v. Estate of

Shabazz, 482 U.S. 342, 348–50 (1987) (recognizing First Amend‐

ment right to freedom of religion in prison); Lee v. Washington,

390 U.S. 333, 333 (1968) (per curiam) (recognizing equal pro‐

tection rights in prison). Similarly, we have previously con‐

cluded that the digital rectal search of a prisoner “falls under

both the constitutional protections of the Fourth Amendment

No. 16‐4234 17

and the Eighth Amendment.” Del Raine v. Williford, 32 F.3d

1024, 1039 (7th Cir. 1994).

Importantly, the Fourth and Eighth Amendments have

different roles to play with respect to bodily searches and pro‐

tect different categories of constitutional rights. The Eighth

Amendment safeguards prisoners against the use of searches

that correctional officers subjectively intend as a form of pun‐

ishment. See Whitley, 475 U.S. at 319–20. Because reasonable‐

ness is an objective test, a defendant’s subjective state of mind

is irrelevant to a court’s Fourth Amendment analysis. See Gra‐

ham, 490 U.S. at 398 (“[T]he terms ‘cruel’ and ‘punishments’

clearly suggest some inquiry into subjective state of mind,

whereas the term ‘unreasonable’ does not.”). The Fourth

Amendment thus protects prisoners from searches that may

be related to or serve some institutional objective, but where

guards nevertheless perform the searches in an unreasonable

manner, in an unreasonable place, or for an unreasonable pur‐

pose. See Bell, 441 U.S. at 559. This last consideration is partic‐

ularly salient in the case before us: certainly, a court need not

give as much deference to a prison administrator’s assess‐

ment of the necessity of a training exercise as it does to

measures taken in response to the actual presence of weap‐

ons, contraband, or other immediate security concerns.

2. Right to Bodily Privacy in Visual Inspections

Although today we announce that convicted prisoners

maintain a right to bodily privacy during visual inspections

of their bodies, we have not always been so clear. In the wake

of Hudson, we have taken different, sometimes conflicting, ap‐

proaches to addressing the scope of that right. In several

cases, we concluded that the Fourth Amendment protects

some degree of privacy as pertains to bodily searches. See, e.g.,

18 No. 16‐4234

Peckham v. Wis. Dep’t of Corr., 141 F.3d 694, 697 (7th Cir. 1998)

(“So, does a prison inmate enjoy any protection at all under

the Fourth Amendment against unreasonable searches and

seizures? … [W]e think the answer is ‘yes[.]’”); Sparks, 71 F.3d

at 260 (concluding that the Fourth Amendment applies to the

involuntary catheterization of an inmate); Del Raine, 32 F.3d

at 1039 (noting that the execution of a digital rectal probe of

an inmate for contraband falls “under both the constitutional

protections of the Fourth Amendment and the Eighth

Amendment”); Canedy, 16 F.3d at 185–86 (applying the Fourth

Amendment reasonableness test announced in Bell to strip

searches); Forbes, 976 F.2d at 312–13 (concluding that urine

tests are searches for Fourth Amendment purposes, and that

these searches must be reasonable pursuant to Bell). Indeed,

in Canedy, we explained that Hudson foreclosed some but not

all of an inmate’s Fourth Amendment rights:

Some diminution of privacy is of course to be expected

in prison. See Hudson v. Palmer, 468 U.S. 517 (1984)

(prisoners are entitled to no reasonable expectation of

privacy in their prison cells insuring them of Fourth

Amendment protection against unreasonable searches

and seizures). Inmates surely do not enjoy the full

sweep of constitutional rights afforded other members

of society. But even so, those who are convicted of

criminal offenses do not surrender all of their constitu‐

tional rights.

16 F.3d at 185. We then concluded that body cavity “searches

must be conducted in a reasonable manner.” Id. at 186 (quot‐

ing Bell, 441 U.S. at 560). And in Sparks, we recognized, “Cer‐

tainly Hudson does not establish that the interior of one’s body

No. 16‐4234 19

is as open to invasion as the interior of one’s cell.” 71 F.3d at

261.

But we have at least one decision pointing in a different

direction. In Johnson, we broadly announced that Hudson held

that any Fourth Amendment right to privacy extinguished

upon conviction, and we affirmed the dismissal of an inmate’s

Fourth Amendment claim regarding observation of his naked

body on that basis. 69 F.3d at 146, 150. Thus, in King, we at‐

tempted to reconcile this inconsistency in our case law with a

bright‐line rule: that prisoners retain an expectation of pri‐

vacy regarding physical intrusions into their bodies—such as

during digital rectal probes and forced catheterizations—but

not visual inspections of them. 781 F.3d at 899–901.

As our colleague initially explained in his concurrence in

King, this rule is untenable. 781 F.3d at 901–04 (Hamilton, J.,

concurring). To begin, it draws no support from Supreme

Court precedent. Indeed, the strip searches the Court evalu‐

ated using a reasonableness analysis in Bell and Florence were

visual. Bell, 441 U.S. at 528; Florence, 566 U.S. at 325. No other

circuit has announced (nor ever entertained the notion) that

the Fourth Amendment reaches only searches that involve a

physical intrusion by a searching official. This is for good rea‐

son, as searches may be attributed to law enforcement when

they do not physically do the searching, but it occurs at their

command. See, e.g., City of Los Angeles v. Patel, 576 U.S. 409,

420–21 (2015) (describing a demand by officers for hotel own‐

ers to produce records as a search); see also United States v.

Pope, 686 F.3d 1078, 1082 (9th Cir. 2012) (“[A] Fourth Amend‐

ment search occurs when police command a person to reveal

something in which he would otherwise have a reasonable

expectation of privacy and that thing or that area is revealed

20 No. 16‐4234

as a result of the command.”). This is consistent with the over‐

arching focus of the Fourth Amendment reasonableness anal‐

ysis, which evaluates an individual’s expectation of privacy

“in what was searched,” not who did the searching. United

States v. Scott, 731 F.3d 659, 663 (7th Cir. 2013) (emphasis

added). To conclude otherwise promotes a distinction with‐

out a difference: whereas a manual body cavity search con‐

ducted by a prison official would fall within the domain of the

Fourth Amendment, a search in which an officer orders a pris‐

oner to manipulate her own body and merely looks on would

avoid review. In light of these considerations, we thus over‐

rule the section of King addressing the plaintiff’s Fourth

Amendment claim and the bright‐line rule it announced.

Likewise, we overrule our decision in Johnson to the extent

it deems the Fourth Amendment inapplicable to visual in‐

spections during bodily searches. That case, like the one we

address today, involved visual bodily searches, although of a

less intrusive manner: male prisoners raised a Fourth Amend‐

ment challenge to female officers routinely and incidentally

observing them in various states of undress in their prison

cells, showers, and toilets. Johnson, 69 F.3d at 145. In Johnson,

we read Hudson as eliminating all rights to privacy under the

Fourth Amendment within prisons and thus affirmed the dis‐

missal of the plaintiff’s Fourth Amendment claim on that ba‐

sis. Id. at 146, 150. That reasoning does not survive today’s

holding. We do note, however, that the result in Johnson

would have been no different under a reasonableness analy‐

sis, given the limited nature of the intrusions at issue and the

ever‐present institutional concerns over safety and security.

No. 16‐4234 21

3. Deference to Prison Administrators

Having determined that the Fourth Amendment governs

the searches at issue here, we turn our attention to how courts

must perform the resulting reasonableness analysis and the

various considerations they should weigh. Bell, 441 U.S. at

559. When evaluating reasonableness, in the context of strip

searches of prisoners as in others, courts must afford prison

administrators “wide‐ranging deference in the adoption and

execution of policies and practices that in their judgment are

needed to preserve internal order and discipline and to main‐

tain institutional security.” Bell, 441 U.S. at 547; see also Flor‐

ence, 566 U.S. at 328. Thus, “in the absence of substantial evi‐

dence in the record to indicate that the officials have exagger‐

ated their response to these considerations, courts should or‐

dinarily defer to their expert judgment in such matters.” Bell,

441 U.S. at 548 (quoting Pell v. Procunier, 417 U.S. 817, 827

(1974)).

Accordingly, in Florence, the Supreme Court noted that

“[c]orrectional officials have a significant interest in conduct‐

ing a thorough search as a standard part of the intake pro‐

cess,” and that visual bodily inspections for symbols of gang

affiliation and contraband that could create safety and secu‐

rity concerns are generally reasonable. 566 U.S. at 330–34.

And in Bell, the Court concluded that visual body cavity

searches of pretrial detainees after contact visits, absent evi‐

dence officials performed the searches in an unreasonable

manner, did not violate inmates’ Fourth Amendment rights.

441 U.S. at 558–60. Indeed, Plaintiffs concede that prison offi‐

cials may strip and body cavity search inmates, if the officials

conduct those searches in an appropriate manner, because of

concerns regarding safety and security. Likewise, incidental

22 No. 16‐4234

observations of undressed inmates—particularly ones that

are infrequent or at a distance—that are inherent to the con‐

tinuous surveillance necessary in prisons are almost always

reasonable. Cf. Grummett v. Rushen, 779 F.2d 491, 495 (9th Cir.

1985).

Consistent with the principle of deference to the judgment

of prison administrators, several of our sister circuits, after

undertaking a reasonableness analysis of prison strip

searches, have concluded that these searches do not violate

the Fourth Amendment where the level of intrusion does not

outweigh the purported justification for the search. See, e.g.,

Lewis v. Sec’y of Pub. Safety & Corr., 870 F.3d 365, 368–69 (5th

Cir. 2017) (upholding as reasonable visual body cavity

searches of prisoners returning from work); Nunez, 591 F.3d

at 1227–28 (upholding a visual body cavity search where the

prisoner failed to produce evidence that it was unreasonable);

Franklin, 883 F.2d at 656–57 (holding that visual body cavity

searches that were justified by “legitimate security concerns”

did not violate the Fourth Amendment); Michenfelder, 860

F.2d at 332–33 (policy of performing visual body cavity

searches every time prisoner left or returned to maximum se‐

curity unit served legitimate penological interest of institu‐

tional security); Elliott v. Lynn, 38 F.3d 188, 190–92 (5th Cir.

1994) (“en mass” visual body cavity searches in a non‐private

area were reasonable to effectively respond to a spike in

prison violence). The Fourth Amendment can, and must, ac‐

count for institutional concerns.

As these many decisions demonstrate, though, the fact

that institutional concerns significantly diminish the privacy

rights of persons in prison does not mean that the Fourth

Amendment provides no protection at all. Indeed, the

No. 16‐4234 23

Supreme Court has applied the Fourth Amendment reasona‐

bleness inquiry in other settings where individuals also have

“significantly diminished” privacy rights. See United States v.

Knights, 534 U.S. 112, 118–20 (2001) (applying a reasonable‐

ness analysis to the search of a probationer’s home, although

probationers “do not enjoy the absolute liberty to which every

citizen is entitled”); Samson v. California, 547 U.S. 843, 850–55

(2006) (considering the weakness of a parolee’s privacy inter‐

est and the strength of the government’s interest in public

safety to uphold a suspicionless search of a parolee as reason‐

able under the Fourth Amendment).

4. Reasonableness of the Search

Finally, although we have concluded that the Fourth

Amendment applies to the strip and body cavity searches at

issue, this does not mean that Plaintiffs are necessarily enti‐

tled to a trial on their Fourth Amendment claim. They still

must provide sufficient evidence that the searches were un‐

reasonable, considering “the scope of the particular intru‐

sion[s], the manner in which [they were] conducted, the justi‐

fication for initiating [them], and the place in which [they

were] conducted.” Bell, 441 U.S. at 559.

Citing security concerns and the need for cadet training,

Defendants argue that the searches at issue were reasonable.

We do not resolve today, however, whether Plaintiffs have

demonstrated a genuine dispute regarding the reasonable‐

ness of the searches. Because the district court concluded the

Fourth Amendment did not cover the searches at issue here,

it did not perform a reasonableness analysis. Indeed, Defend‐

ants, in their motion to strike Plaintiffs’ response to their mo‐

tion for summary judgment, conceded that “[t]he nature of

the searches and whether they were conducted in the manner

24 No. 16‐4234

claimed by Plaintiffs are clearly in dispute.” On this record,

we cannot determine whether the searches were, in fact, rea‐

sonable. We thus leave that analysis to the district court to

perform in the first instance on remand.

B. Qualified Immunity

In the alternative, Defendants argue that we should affirm

the district court’s judgment on the ground that they are enti‐

tled to qualified immunity. They contend that, as of March

2011, it was not clearly established that a visual strip and body

cavity search of a prisoner could violate the Fourth Amend‐

ment.

Qualified immunity is an affirmative defense that “pro‐

tects government officials ‘from liability for civil damages in‐

sofar as their conduct does not violate clearly established stat‐

utory or constitutional rights of which a reasonable person

would have known.’” Pearson v. Callahan, 555 U.S. 223, 231

(2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).

Whether a right is clearly established hinges on the “objective

legal reasonableness of the action, assessed in light of the legal

rules that were clearly established at the time it was taken.”

Id. at 244 (quoting Wilson v. Layne, 526 U.S. 603, 614 (1999)). A

clearly established right is one that is “dictated by ‘controlling

authority’ or ‘a robust consensus of cases of persuasive au‐

thority.’” District of Columbia v. Wesby, 138 S. Ct. 577, 589–90

(2018) (quoting Ashcroft v. al‐Kidd, 563 U.S. 731, 741–42 (2011)).

“It is not enough that the rule is suggested by then‐existing

precedent. The precedent must be clear enough that every

reasonable official would interpret it to establish the particu‐

lar rule the plaintiff seeks to apply.” Id. at 590. The right must

be established not as a general proposition but in a

No. 16‐4234 25

particularized manner so its contours are clear to a reasonable

official. Reichle v. Howards, 566 U.S. 658, 665 (2012).

As a threshold matter, we must first determine whether

this defense is properly before us. Courts generally do not

consider issues raised for the first time on appeal. Singleton v.

Wulff, 428 U.S. 106, 120 (1976); CNH Indus. Am. LLC v. Jones

Lang LaSalle Ams., Inc., 882 F.3d 692, 705 (7th Cir. 2018). “The

underlying concern is to ensure that the opposing party is not

prejudiced by being denied sufficient notice to respond to an

argument.” Hernandez v. Cook Cty. Sheriff’s Office, 634 F.3d 906,

913 (7th Cir. 2011). Plaintiffs argue that Defendants waived,

or at least forfeited, their qualified immunity defense by fail‐

ing to raise it at summary judgment before the district court.

Defendants concede that they failed to raise the defense in

their summary judgment briefs, but they contend that they

neither waived nor forfeited the defense because they as‐

serted it in their answer and interrogatory responses.

Because Defendants failed to raise their qualified immun‐

ity defense in their summary judgment motion before the dis‐

trict court, and instead raised it for the first time in their ap‐

pellate brief, they have waived it for purposes of this appeal.

See DeMallory v. Cullen, 855 F.2d 442, 449 n.4 (7th Cir. 1988)

(noting defendants waived the argument that they are enti‐

tled to qualified immunity by failing to raise it before the dis‐

trict court). This is true even though Defendants asserted

qualified immunity in their answer and interrogatory re‐

sponses. See, e.g., Maul v. Constan, 928 F.2d 784, 786 (7th Cir.

1991) (raising a qualified immunity defense in an answer “is

not sufficient to prevent a finding of waiver because the de‐

fendants did not preserve the point when they had subse‐

quent opportunity to do so”). We have previously said we

26 No. 16‐4234

will “not affirm a judgment based on an affirmative defense

raised for the first time on appeal.” McDonald v. Adamson, 840

F.3d 343, 347 (7th Cir. 2016). Accordingly, we will not con‐

sider the merits of Defendants’ qualified immunity defense at

this stage.

Even if we viewed Defendants’ invocation of qualified im‐

munity as only forfeited, the outcome is no different. Waiver

and forfeiture are distinct legal concepts. Hamer v. Neighbor‐

hood Hous. Servs. of Chi., 138 S. Ct. 13, 17 n.1 (2017). Whereas

waiver is the “intentional relinquishment or abandonment of

a known right,” forfeiture is the mere failure to raise a timely

argument, due to either inadvertence, neglect, or oversight.

United States v. Olano, 507 U.S. 725, 733 (1993) (quoting Johnson

v. Zerbst, 304 U.S. 458, 464 (1938)); see also Williams v. Dieball,

724 F.3d 957, 961 & n.2 (7th Cir. 2013). In the criminal context,

the distinction between waiver and forfeiture is critical: while

waiver precludes review, forfeiture permits a court to correct

an error under a plain error standard. Olano, 507 U.S. at 731–

35; see also Fed. R. Crim. P. 52(b). This distinction between

waiver and forfeiture and its relevance have been less clear in

the civil context. In past decisions, we have not consistently

used forfeiture “as a way to signal whether plain error review

applies” in civil cases. Williams, 724 F.3d at 961 n.2.

We therefore clarify that “our ability to review for plain

error in civil cases is severely constricted,” as “a civil litigant

‘should be bound by his counsel’s actions.’” SEC v. Yang, 795

F.3d 674, 679 (7th Cir. 2015) (quoting Deppe v. Tripp, 863 F.2d

1356, 1360 (7th Cir. 1988)). Indeed, in civil cases, “we typically

will not entertain an argument raised for the first time on ap‐

peal, even for the limited purpose of ascertaining whether a

plain error occurred.” CNH Indus. Am. LLC, 882 F.3d at 705.

No. 16‐4234 27

Plain error review is available in civil cases only in the rare

situation where a party can demonstrate that: “(1) exceptional

circumstances exist; (2) substantial rights are affected; and

(3) a miscarriage of justice will occur if plain error review is

not applied.” Thorncreek Apartments III, LLC v. Mick, 886 F.3d

626, 636 (7th Cir. 2018) (quoting Willis v. Lepine, 687 F.3d 826,

839 (7th Cir. 2012)); see also Packer v. Trs. of Ind. Univ. Sch. of

Med., 800 F.3d 843, 849 (7th Cir. 2015); Yang, 795 F.3d at 679.

The determination of what circumstances fit these criteria is

solely within our discretion. Singleton, 428 U.S. at 121 (“The

matter of what question may be taken up and resolved for the

first time on appeal is one left primarily to the discretion of

the courts of appeals, to be exercised on the facts of individual

cases. We announce no general rule.”).

Even if Defendants had only forfeited their qualified im‐

munity defense, this case does not present an exceptional cir‐

cumstance that would warrant its consideration in the first in‐

stance on appeal. We do not aim today, however, to provide

a comprehensive list of considerations that meet the relevant

criteria. It suffices to say that Defendants may still assert the

defense in later proceedings on remand, even though they did

not properly preserve it in the district court for purposes of

this appeal. True, “the most appropriate time to raise the

qualified immunity issue is in a motion for summary judg‐

ment filed before allowing discovery.” Cygnar v. City of Chi‐

cago, 865 F.2d 827, 842 n.16 (7th Cir. 1989) (citing Walsh v. Mel‐

las, 837 F.2d 789, 799–800 n.7 (7th Cir. 1988)); see also Anderson

v. Creighton, 483 U.S. 635, 646 n.6 (1987). But we have previ‐

ously recognized that, “[a]lthough the benefit of immunity

from suit is effectively lost once the parties go to trial, we al‐

low plaintiffs to use ‘qualified immunity’ as a defense to lia‐

bility at any stage in the litigation.” Alvarado v. Picur, 859 F.2d

28 No. 16‐4234

448, 451 n.3 (7th Cir. 1988); see also Behrens v. Pelletier, 516 U.S.

299, 308–311 (1996) (allowing appeals resolving the question

of entitlement to qualified immunity at multiple stages of lit‐

igation). Thus, despite their failure to properly preserve the

issue for purposes of this appeal, Defendants may still invoke

the defense in a later motion before the district court. See Cyg‐

nar, 865 F.2d at 842 n.16; see also Oliver v. Roquet, 858 F.3d 180,

188 (3d Cir. 2017). With the defense still available to Defend‐

ants, there is no risk of a miscarriage of justice.

C. Defendants’ Other Arguments

Defendants argue that—if not on the scope of the Fourth

Amendment or qualified immunity—we should affirm the

judgment of the district court on multiple alternate grounds.

We do not reach any of these arguments.

To begin, Defendants argue that Plaintiffs failed to present

evidence of physical injury as the PLRA demands they must

in order to receive compensatory damages. See 42 U.S.C.

§ 1997e(e). Defendants did not raise this argument below, and

therefore have waived it for purposes of this appeal. Puffer v.

Allstate Ins. Co., 675 F.3d 709, 718 (7th Cir. 2012).

In addition, Defendants raise several other arguments that

Plaintiffs are not entitled to the relief they seek, namely, that

Plaintiffs lack standing for injunctive relief pursuant to City of

Los Angeles v. Lyons, 461 U.S. 95 (1983), that Plaintiffs are una‐

ble to obtain compensatory damages as to Hulett because they

brought no individual capacity claims against her, and that

Plaintiffs may not receive punitive damages because the jury

found for Defendants on their Eighth Amendment claim,

which mirrors the standard for punitive damages. Because

the district court granted summary judgment on Plaintiffs’

No. 16‐4234 29

Fourth Amendment claim, it did not assess any of these argu‐

ments pertaining to the availability of remedies as to that

claim. We thus also leave these issues for the district court’s

initial determination on remand.

Lastly, Defendants seek decertification of Plaintiffs’ dam‐

ages classes. Defendants did not file a cross‐appeal to chal‐

lenge the district court’s class certification decision. As a gen‐

eral rule, an appellee must file a cross‐appeal when he seeks

to expand his own rights under the district court’s judgment

or to diminish the rights of the appellant. United States v. Am.

Ry. Express Co., 265 U.S. 425, 435 (1924); Wellpoint, Inc. v.

Comm’r of Internal Revenue, 599 F.3d 641, 649–50 (7th Cir.

2010). As Defendants’ challenge to the district court’s class

certification decision seeks to diminish Plaintiffs’ rights, it is

outside the scope of our review absent a cross‐appeal. Cf.

Weitzenkamp v. Unum Life Ins. Co. of Am., 661 F.3d 323, 332 (7th

Cir. 2011) (“A cross‐appeal is appropriate only if a prevailing

party seeks a judgment different from that rendered by the

district court. … [C]ross‐appeals are not appropriate in rou‐

tine cases like ours that raise only alternate grounds for affir‐

mance of the judgment and not an independent issue like the pro‐

priety of class certification.” (emphasis added)); In re FedEx

Ground Package Sys., Inc. Emp’t Practices Litig., 792 F.3d 818,

820 (7th Cir. 2015) (per curiam) (indicating decertification of a

class was inappropriate where the opposing party dismissed

its cross‐appeal on that issue); Joseph v. Norman’s Health Club,

Inc., 532 F.2d 86, 88 n.2 (8th Cir. 1976) (refusing to reach the

question of class certification without a cross‐appeal).

III. Conclusion

“The continuing guarantee of … substantial rights to

prison inmates is testimony to a belief that the way a society

30 No. 16‐4234

treats those who have transgressed against it is evidence of

the essential character of that society.” Hudson, 468 U.S. at

523–24. We hold that the Fourth Amendment right to bodily

privacy is one of those rights that the Constitution guarantees,

even though in a significantly diminished way, within the

walls of a prison. It does not extinguish upon conviction.

The judgment of the district court is therefore REVERSED

and REMANDED for the district court to assess in the first in‐

stance whether Plaintiffs have demonstrated that an issue of

fact exists as to the reasonableness of the strip and body cavity

searches in question and for further proceedings consistent

with this opinion.

No. 16‐4234 31

EASTERBROOK, Circuit Judge, dissenting. My colleagues are

right to say that prisoners are entitled to protection from abu‐

sive guards. Misbehaving guards can be and are criminally

prosecuted, as the guard was in J.K.J. v. Polk County, 960 F.3d

367 (7th Cir. 2020) (en banc), and many prisoners have tort

claims. But our plaintiffs invoke the Constitution rather than

other sources of law. Constitutional protection for persons

serving sentences following convictions comes from the Cruel

and Unusual Punishments Clause of the Eighth Amendment,

not the Fourth Amendment.

The difference between the two is that liability under the

Eighth Amendment depends on showing an intent to punish

improperly, not simply on taking an action that a court deems

unreasonable. Compare Farmer v. Brennan, 511 U.S. 825 (1994)

(mental‐state component of Eighth Amendment), with Whren

v. United States, 517 U.S. 806 (1996) (objective standard under

Fourth Amendment). Plaintiffs’ claim under the Eighth

Amendment was submitted to a jury, which found for the de‐

fendants. The jury must have concluded that the defendants

did not intend to subject them to unjustified humiliation or

otherwise punish them in a way not permitted by the judg‐

ments of conviction. The jury’s verdict should end the case,

not open a new battleground in which judges (and perhaps

another jury) determine whether the acts were “reasonable.”

The sort of inquiry that my colleagues allow amounts to the

objective component of Eighth Amendment analysis without

the subjective component—a sort of Eighth Amendment lite.

That is not what the Fourth Amendment is about.

The Fourth Amendment provides: “The right of the peo‐

ple to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures, shall not be

32 No. 16‐4234

violated”. It is hard to see how that rule can be applied to con‐

victed prisoners, for the judgment of conviction extinguishes

those very rights. Prisoners are removed from their houses,

and the jailers obtain custody of their persons; their persons,

papers, and effects are under constant supervision. People of‐

ten describe the Fourth Amendment as a guarantee of pri‐

vacy, but privacy is incompatible with imprisonment. Guards

must be watchful in the cells, in the yards, in the cafeterias, in

the showers, and even in the toilets, for violence may be

planned or perpetrated in any of those locations. Drugs,

weapons, and other contraband may be hidden or distributed

there.

Hudson v. Palmer, 468 U.S. 517 (1984), rejected a contention

that the Fourth Amendment applies within prison walls after

a conviction. What it said is worth repetition:

Notwithstanding our caution in approaching claims that the

Fourth Amendment is inapplicable in a given context, we hold

that society is not prepared to recognize as legitimate any subjec‐

tive expectation of privacy that a prisoner might have in his prison

cell and that, accordingly, the Fourth Amendment proscription

against unreasonable searches does not apply within the confines

of the prison cell. The recognition of privacy rights for prisoners

in their individual cells simply cannot be reconciled with the con‐

cept of incarceration and the needs and objectives of penal insti‐

tutions.

Prisons, by definition, are places of involuntary confinement of

persons who have a demonstrated proclivity for anti‐social crim‐

inal, and often violent, conduct. Inmates have necessarily shown

a lapse in ability to control and conform their behavior to the le‐

gitimate standards of society by the normal impulses of self‐re‐

straint; they have shown an inability to regulate their conduct in

a way that reflects either a respect for law or an appreciation of

the rights of others. Even a partial survey of the statistics on vio‐

lent crime in our Nation’s prisons illustrates the magnitude of the

No. 16‐4234 33

problem. During 1981 and the first half of 1982, there were over

120 prisoners murdered by fellow inmates in state and federal

prisons. A number of prison personnel were murdered by prison‐

ers during this period. Over 29 riots or similar disturbances were

reported in these facilities for the same time frame. And there

were over 125 suicides in these institutions. See Prison Violence, 7

Corrections Compendium (Mar. 1983). Additionally, informal sta‐

tistics from the United States Bureau of Prisons show that in the

federal system during 1983, there were 11 inmate homicides, 359

inmate assaults on other inmates, 227 inmate assaults on prison

staff, and 10 suicides. There were in the same system in 1981 and

1982 over 750 inmate assaults on other inmates and over 570 in‐

mate assaults on prison personnel.

Within this volatile “community,” prison administrators are to

take all necessary steps to ensure the safety of not only the prison

staffs and administrative personnel, but also visitors. They are un‐

der an obligation to take reasonable measures to guarantee the

safety of the inmates themselves. They must be ever alert to at‐

tempts to introduce drugs and other contraband into the premises

which, we can judicially notice, is one of the most perplexing

problems of prisons today; they must prevent, so far as possible,

the flow of illicit weapons into the prison; they must be vigilant to

detect escape plots, in which drugs or weapons may be involved,

before the schemes materialize. In addition to these monumental

tasks, it is incumbent upon these officials at the same time to

maintain as sanitary an environment for the inmates as feasible,

given the difficulties of the circumstances.

The administration of a prison, we have said, is “at best an ex‐

traordinarily difficult undertaking.” Wolff v. McDonnell, 418 U.S.

[539] at 566 [1974]; Hewitt v. Helms, 459 U.S. 460, 467 (1983). But it

would be literally impossible to accomplish the prison objectives

identified above if inmates retained a right of privacy in their cells.

Virtually the only place inmates can conceal weapons, drugs, and

other contraband is in their cells. Unfettered access to these cells

by prison officials, thus, is imperative if drugs and contraband are

to be ferreted out and sanitary surroundings are to be maintained.

34 No. 16‐4234

468 U.S. at 525–27 (cleaned up). Although the Justices spoke

of privacy in cells, everything they said is equally applicable

to privacy elsewhere in a prison. Since Hudson, none of the

Court’s other decisions has suggested that the Fourth Amend‐

ment applies to any aspect of prison life—if the inmate has

been convicted.

Pretrial detainees pose a different problem, because per‐

sons awaiting trial cannot be punished. Restrictions on their

liberty are proper only if essential to custody and institutional

order. That is why Bell v. Wolfish, 441 U.S. 520 (1979), and Flor‐

ence v. Board of Chosen Freeholders, 566 U.S. 318 (2012), applied

to pretrial detainees both the Fourth Amendment and the Due

Process Clause of the Fifth and Fourteenth Amendments.

Convicted prisoners, however, may be punished; they do not

retain the rights of detainees. That’s the principal point of

Hudson and is why the Justices rejected the prisoners’ Fourth

Amendment claim without thinking that they had modified

Wolfish.

In recent years the Court has repeatedly addressed the

question: How long after arrest does the Fourth Amendment

remain applicable? Although some decisions suggested that

the Fourth Amendment’s protections lapse when an arrested

person is presented to a judge, see, e.g., Wallace v. Kato, 549

U.S. 384, 389–92 (2007), more recent decisions have drawn the

line at conviction. A detainee retains rights under the Fourth

Amendment until conviction. See Manuel v. Joliet, 137 S. Ct.

911 (2017); McDonough v. Smith, 139 S. Ct. 2149 (2019). After

that, the Eighth Amendment sets the limits on institutional

management.

The judgment of conviction extinguishes privacy interests,

though other interests (such as avoiding gratuitous

No. 16‐4234 35

punishment) remain. If the Fourth Amendment applies to

prisoners after convictions, detainees and convicts end up

with the same rights. Yet Wolfish, Hudson, and many other de‐

cisions hold that these different categories of prisoners have

different rights while in custody.

Whitley v. Albers, 475 U.S. 312 (1986), rejects a contention

that a prisoner’s asserted interest in bodily integrity is covered

by a constitutional provision other than the Eighth Amend‐

ment. In the course of suppressing a riot, guards shot a pris‐

oner, likely unnecessarily. An excessive‐force claim by a free

person or a pretrial detainee is assessed under the Fourth

Amendment. See Tennessee v. Garner, 471 U.S. 1 (1985); Graham

v. Connor, 490 U.S. 386 (1989); Kingsley v. Hendrickson, 576 U.S.

389 (2015). But that is not how Whitley approached an exces‐

sive‐force claim. The Justices applied the Eighth Amendment

(I’ll return to how Whitley understands that provision) and re‐

buffed an invitation to derive rules from elsewhere, such as

the Due Process Clauses. Whitley held that the Eighth Amend‐

ment supplies the applicable rules for riot‐control operations

inside prisons—though it took care to observe that this was so

because the inmates were not “pretrial detainees or persons

enjoying unrestricted liberty” (475 U.S. at 327).

I recognize that Whitley considered the Due Process

Clauses (deemed inapplicable) and the Eighth Amendment

(found controlling) rather than the Fourth Amendment, but

that is because even the plaintiff seems to have recognized

that, in light of Hudson, the Fourth Amendment was off the

table. Whitley applies the Eighth Amendment, not the Fourth,

to a seizure (bullets count as seizures), so the majority’s dis‐

tinction between searches and seizures for intra‐prison events

36 No. 16‐4234

is not compatible with precedent—or with constitutional text,

for the Amendment covers both alike.

In explaining how the Eighth Amendment applies, Whitley

stressed the importance of its mental‐state requirement—that

is, the need to show that the defendants displayed “obduracy

and wantonness” (475 U.S. at 319). They added:

The infliction of pain in the course of a prison security measure …

does not amount to cruel and unusual punishment simply be‐

cause it may appear in retrospect that the degree of force author‐

ized or applied for security purposes was unreasonable, and

hence unnecessary in the strict sense.

Ibid. In other words, “reasonableness” is a bad standard for

assessing prison management. That rules out the Fourth

Amendment. The Court added:

Prison administrators … should be accorded wide‐ranging defer‐

ence in the adoption and execution of policies and practices that

in their judgment are needed to preserve internal order and disci‐

pline and to maintain institutional security. That deference ex‐

tends to a prison security measure taken in response to an actual

confrontation with riotous inmates, just as it does to prophylactic

or preventive measures intended to reduce the incidence of these

or any other breaches of prison discipline. It does not insulate

from review actions taken in bad faith and for no legitimate pur‐

pose, but it requires that neither judge nor jury freely substitute

their judgment for that of officials who have made a considered

choice.

Id. at 321–22 (cleaned up).

A reasonableness standard under the Fourth Amendment

withholds that deference. It transfers the effective decisions

from wardens and other prison managers to judges and juries.

My colleagues suggest that a measure of deference could be

preserved by making suitable adjustments to the definition of

reasonableness, but, aside from the objection to the Judicial

No. 16‐4234 37

Branch making up constitutional rules as we go along, the

problem remains that judges (and jurors) are not prison ad‐

ministrators. What an administrator may deem desirable,

even necessary, a juror may deem unwarranted. Jurors aren’t

trained in prison management and do not have to live with

the consequences of errors. But administrators must live with

those errors. Guards and prisoners may die if judicial second‐

guessing hampers prison security. Interfering in training ex‐

ercises—especially in training about how to search for contra‐

band—poses that risk.

My colleagues say that training sessions aren’t really

prison management at all, so we need not defer. I don’t un‐

derstand this. Earlier this year the court held in J.K.J. that

training for guards is constitutionally mandatory. Now it

turns out that training is so collateral to good management

that jurors (acting in the name of reasonableness) can design

training programs, and that everything Whitley and many sim‐

ilar cases have said about the need to give wardens leeway

can be put to one side.

Judges must be modest about their ability to manage other

institutions; we are generalists, after all, while wardens are

specialists. And it is risible to suggest that jurors, asked to

evaluate reasonableness, are more likely than wardens to pro‐

duce appropriate resolution of the conflict between personal

and institutional interests. If prisons are to enjoy the scope of

discretion that is essential to sound administration, while pro‐

tecting prisoners from sadistic conduct, the Eighth Amend‐

ment is the right tool for the job.