In the strip search cases, the courts have rejected the notion that a blanket policy was a "reasonable" way to further the government's legitimate desire to keep contraband and weapons out of its detention facilities. Rather, courts have struck the balance between the legitimate security considerations of the detaining authorities and the privacy rights of detainees by requiring not full probable cause, but some articulable basis for suspecting that a particular arrestee or class of arrestees possess concealed weapons of contraband. This court believes that the security interests of the Borough of Clayton and the privacy rights of Ms. Wilkes and other Clayton arrestees may appropriately be balanced in the same fashion.
Like the interest in preventing contraband from entering detention facilities, the Borough's interest in preventing arrestees from harming themselves or others is an important one. However, this concern does not justify the Borough's policy of observing every arrestee's use of bathroom facilities. Certainly not every arrestee in Clayton is bent on self-harm, nor are all arrestees equally likely to harm others in the station if left unsupervised.
Further, the Borough's method of supervising arrestees' bathroom use is simply not necessary to protect others in the facility from harm. It is undisputed that Ms. Wilkes was taken by Officers McDonald and Duffy to a bathroom where no other persons were present. Officer Duffy's constant presence in the bathroom simply addressed no security threat posed by Ms. Wilkes to others in the station house. For if Officer Duffy were outside the closed door, Ms. Wilkes could have harmed only one person while in the bathroom -- herself.
The Borough's interest in ensuring that arrestees in its custody not be given the opportunity to harm themselves is more substantial. Assuming Ms. Wilkes and other arrestees are searched for weapons, knives and other instruments with which they may harm themselves, however, actual visual observation of arrestees' use of bathroom facilities adds relatively little to the Borough's efforts to prevent suicide attempts.
In Ms. Wilkes' case, she was personally escorted to the bathroom by Officers McDonald and Duffy. Whether Officer Duffy actually observed Ms. Wilkes change her napkin or remained right outside the bathroom door is relatively insignificant as measured by its deterrent effect on Ms. Wilkes' ability to harm herself, but the distinction is essential from the perspective of Ms. Wilkes' expectation of privacy. And even if actual optical oversight of arrestees' bathroom use would be more effective than mere presence outside the bathroom, this court believes that the Borough's interest in preventing arrestee self-harm does not justify the imposition of this degrading oversight procedure on every person arrested in Clayton.
The seriousness of the intrusion on Ms. Wilkes and other Clayton arrestees is such as to necessitate some reasoned criteria for determining which arrestees pose such a threat of self-harm that they must be observed while using bathroom facilities. The Borough asks this court to permit its police to continue to visually monitor the very private hygienic acts of every arrestee in Clayton, irrespective of their behavior, emotional and physical condition, or the offenses with which they are charged.
Such a policy is simply unreasonably intrusive, as measured by the interests it was designed to serve. As in the strip search context, this court believes that the Fourth Amendment forbids the Borough and its police from visually observing arrestees using bathroom facilities unless the police have a reasonable suspicion that an arrestee will harm herself if allowed to defecate, urinate, or change a sanitary napkin or tampon behind a closed stall or bathroom door. Only when an arrestee's behavior, emotional or physical condition, or past record of self-harm are such as to engender a reasoned and articulable basis for maintaining direct visual oversight at all times is a viewing of an arrestee's bathroom use constitutionally justifiable.
This, of course, does not mean that the Borough must allow arrestees to use bathroom facilities without restriction or supervision. We simply hold that the Borough's present policy of subjecting every arrestee to the humiliation of visual oversight while using bathroom facilities is unreasonable, and that the application of this policy to Ms. Wilkes deprived her of rights secured to her by the Fourth Amendment of the United States Constitution.
As this deprivation was caused by the implementation of a Borough policy, under § 1983, the defendant Borough, and its defendant officers in their official capacities, are liable to Ms. Wilkes. Summary judgment is therefore entered in favor of the plaintiff. The accompanying order has been entered, and a hearing to determine appropriate relief will be scheduled.
AND NOW, this 29th day of September, 1988, upon consideration of the Motion for Summary Judgment of plaintiff in this matter, and the response thereto, if any, it appearing that there is no genuine issue as to any material fact necessary to the disposition of this matter, and that plaintiff is entitled to judgment on the Complaint as a matter of law, it is hereby.
ADJUDGED AND ORDERED that judgment is entered in favor of plaintiff and against defendants.