Juvenile jails can't examine naked teens, state says in policy change

jhewlett@herald-leader.comMarch 12, 2012 

The Kentucky Department of Juvenile Justice has changed its entry screening policy after a federal judge questioned a juvenile detention facility's practice of screening juveniles while naked.

The change came Dec. 9, a day after U.S. Senior Judge Karl S. Forester said in a court document that, based upon preliminary research, he believed the "Body ID process" at the Breathitt Regional Juvenile Detention Center, in which juvenile detainees were "subjected to a visual, unclothed examination upon intake to the facility," was unconstitutional.

Forester's words were included in a court order pertaining to a pending lawsuit filed by the parents of two Perry County teen half-siblings, who were subjected to screenings while nude by guards at the Breathitt County facility in June 2009. The youths, a girl who was 14 at the time, and a boy, who was 15, were jailed after they were charged with alcohol intoxication — charges that were later dismissed, according to the lawsuit.

While the federal judge did not actually say the Breathitt detention center's body identification process was unconstitutional, then-state juvenile justice commissioner J. Ronald Haws, in a directive issued a day later, said that, effective immediately, "staff shall not conduct a body identification or visual inspection of youth without clothing" during intake, transfer, or return from court or furlough.

"Search of youth upon entry to the facility shall be conducted through a pat down frisk search and use of a hand wand metal detector," the directive said. The change applies to all youth in Department of Juvenile Justice custody, the directive said.

According to the juvenile justice department, there are eight detention centers; 11 youth development centers, which offer educational opportunities and group and family counseling; and 10 group homes throughout the state that are under the department's jurisdiction.

"I think that what the judge did was to signal how he intends to rule, and that was enough in my opinion to convince the cabinet that they needed to change the policy," said Lexington attorney Joe Childers, who represents the Perry teens' parents.

Stacy Floden, director of program services for the Kentucky Department of Juvenile Justice, said that "body identification/health assessment" screenings, for years, have been part of the standard operating procedure for all youths entering, as inmates or residents, all facilities overseen by the juvenile justice department.

When asked repeatedly if, before the Dec. 9 directive, that meant all of the entering youths were required to be nude during those examinations, she repeatedly answered "yes." But later, she said she needed to double check that. She later sent a reporter an e-mail saying she could not discuss pending litigation.

"The purpose of the body identification/health assessment screening is to screen for, document and treat, if necessary, signs of injury, illness, abuse and/or neglect," Floden said earlier. "I think part of this is also to protect us against litigation," she added.

But she said that body identification/health assessment screenings are not done on juveniles when they leave a facility. There is a hotline available to them if they have complaints about their stay in a juvenile justice facility, she said.

Floden said, and juvenile justice department documents indicate, that body identification/health assessment screenings are not the same as strip searches. Strip searches, according to Floden and the documents, are based upon reasonable suspicion that a youth has contraband on him or her. Juvenile justice department policies on what it calls strip searches and medical examinations that require the removal of clothing are not affected by the Dec. 9 policy change, according to the commissioner's directive.

But Childers maintains that what happened to the half-siblings were indeed strip searches, and unconstitutional strip searches at that. He said in an interview that the guards who screened the teens testified in depositions that the procedure they used in screening the teens was the same procedure they used when a youth was suspected of having contraband.

"This is a visual inspection, but it is a strip search," Childers said of the entry screening process. "It's physically the same, and the guards say it's physically the same."

"It seems to me that basically it's all a matter of semantics," he said.

"I was flabbergasted when I heard every juvenile between the ages of 12 and 17 taken into this facility were strip searched at intake," he said. "This can be for status offenses. This can be for just acting up."

Will Collins, directing attorney of the Hazard trial office of the Kentucky Department of Public Advocacy, said he, too, was surprised when he heard that youths were routinely being inspected while naked during intake at the Breathitt center.

"It wouldn't have crossed my mind that they would have been engaged in such a practice," he said. "I was surprised that this was not a matter that some irate parent or traumatized juvenile had brought to our attention before."

Collins said the "whole point of the juvenile justice system" is to get youths treatment, not punishment.

"I know that, from a legal framework, the Department of Juvenile Justice has to ensure the safety of everyone that comes in their facilities," said Rebecca DiLoreto, litigation director for the non-profit Children's Law Center, which has been looking into the restraint and seclusion, including strip searches, of children in a variety of settings.

She said she knew that entry screenings requiring youths to be naked had been routinely done at several state juvenile justice facilities, and she assumed that was standard operating procedure.

But she said such searches can result in psychological damage. She said she thinks it's unconstitutional for such screenings to be performed on youths charged with low level offenses.

The lawsuit, which was moved from Breathitt Circuit Court to U.S. District Court for the Eastern District of Kentucky, was initially filed June 1, 2010. The parents and their children are identified only by their initials. Haws and other state juvenile justice officials and officials at the Breathitt facility, including two guards, Mitchell Gabbard and Rebecca Harvey, are named in the suit.

The half-siblings were arrested by Hazard police on June 2, 2009, while attending a party at a private home in Perry County, following a middle school graduation, according to the suit. The lawsuit indicates that police were called because juveniles at the party were thought to have been drinking alcohol. The officers instructed several of the juveniles, including the girl, identified in court documents as "K.S.," and her half-brother, identified as "J.S.," to come outside, and the officers gave them breath analysis tests, the suit says.

Childers said that, according to the two half-siblings, the party was a sleepover for several girls at the home of a girl, and some boys showed up with vodka. The host's mother was in a bedroom, apparently asleep, and did not know about the drinking, he said. About five teens were arrested, but the mother was not, he said.

According to the lawsuit, K.S. and J.S. were later taken to a local hospital for a blood-alcohol test. Then the two teens, on an order issued by Perry County District Judge LeAnn Stephens, were detained at the Breathitt Juvenile Detention Center.

The teens were fingerprinted and taken to shower areas, according to the suit.

Harvey instructed the girl to remove all of her clothing, at which point the girl protested that she was menstruating, the suit says.

"That was a humiliating factor for the girl," Childers said.

Despite the girl's protests, Harvey required her to remove all of her clothing, according to the suit.

"Defendant Harvey then walked slowly around K.S.'s unclothed body, the whole process lasting approximately five minutes. Harvey then applied lice medicine to K.S.'s hair while K.S. remained fully nude," the suit says.

Gabbard instructed J.S. to remove all of his clothing, according to the suit.

"Defendant Gabbard plotted the location of J.S.'s scars and tattoos on a sheet of paper. Defendant Gabbard proceeded to stare on J.S.'s nude body for a lengthy period of time, approximately five minutes," the suit says.

"Plaintiffs' arrest for a non-violent, minor offense was clearly established at the time of arrest, as the officers' sole cause for arrest was suspicion of underage drinking. No circumstances or facts existed that could have supported a reasonable belief that Plaintiffs K.S. or J.S. were carrying weapons or other contraband at the time of their arrest," the suit says.

The suit maintains that the defendants violated the teens' constitutional rights by subjecting them to "arbitrary action, unreasonable search, deprivation of liberty, and deliberate indifference to their civil rights." It also alleges that the defendants are liable for "damages caused by false imprisonment, invasion of privacy, assault, negligence, and recklessness." The suit seeks compensatory and punitive damages, costs incurred in prosecuting and a jury trial.

Jennifer Hewlett: (859) 231-3308.Twitter: @HLpublicsafety.

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