Kyla Asbury Nov. 17, 2014, 3:49pm

RICHMOND, Va. (Legal Newsline) - A federal appeals court has ruled visual strip searching and delousing of arrestees does not violate the Fourth Amendment.

The panel ruled that the procedure of visual strip searching and delousing of Michael Cantley and Floyd Teter by the West Virginia Regional Jail and Correctional Facility Authority did not violate the Fourth Amendment and that WVRJA is entitled to qualified immunity for the delousing, according to an opinion issued Nov. 14 in the U.S. Court of Appeals for the Fourth Circuit.

Terry L. Miller and Larry Parsons, executive directors of WVRJA; and Joseph A. DeLong, acting executive director of WVRJA, were also named as defendants in the suit.

Circuit judges J. Harvie Wilkinson, Dennis Shedd and James A. Wynn Jr. voted in the majority, with Wilkinson authoring the majority opinion. Wynn authored a separate concurring opinion.

"The district court held that the delousing of both Cantley and Teter was constitutional and granted summary judgment on the delousing claims," the opinion states. "We affirm the grant of summary judgment, but on the grounds that it was not clearly established that the delousing policy was unconstitutional."

The plaintiffs argue that Amaechi v. West clearly established that the delousing of both Cantley and Teter was an unreasonable search or seizure, according to the majority opinion.

"We disagree," the opinion states. "In Amaechi, an officer physically searched Amaechi, who had been arrested for a noise violation, in public."

This sexually abusive search "took place directly in front of the Amaechis’ townhouse, where the other police officers, Amaechi’s husband, her five children and all of her neighbors had the opportunity to observe," the opinion says.

"The delousing of Cantley and Teter, while undoubtedly unwelcome, cannot compare to the seriousness of the intrusion in Amaechi," the majority opinion states. "The male officer in Amaechi manhandled the naked female plaintiff in public 'without any apparent justification.'"

By contrast, the delousing of Cantley and Teter was done in a private room with only one officer, who was of the same sex, and it did not entail the officer himself touching either plaintiff, according to the opinion.

"Furthermore, the jails have a significant 'interest in reducing the outbreak of lice,'" the opinion states.

In September 2008, Cantley was arrested for violating a domestic violence protection order. He was later strip-searched and deloused by a male officer. Teter was arrested on Feb. 19, 2010.

At no point during the strip-searches and delousing did either male officer in either case touch the plaintiffs.

The class action lawsuit was filed on July 1, 2009 in the U.S. District Court for the Southern District of West Virginia.

The district court granted the defendants' motion for summary judgment and denied the plaintiffs' cross-motion for summary judgment on Oct. 4, 2013. The plaintiffs filed on appeal on Oct. 9, 2013.

"The searches of the type conducted here are 'undoubtedly humiliating and deeply offensive to many.'" the opinion states. "At the same time, correctional authorities have an unquestionably legitimate interest in limiting the influx into their facilities of weapons and drugs, whose chief risk is to the physical safety and well-being of other arrestees themselves."

The Supreme Court has struck the balance in this difficult area by questioning whether "indiscriminate strip searching of detainees held outside of the general population" is constitutional, according to the opinion.

"Conforming its policies to the directives of the court would seem destined for high placement on any list of administrative priorities, and we trust there will be no absence of diligence in the effort," it says.

In his concurring opinion, Wynn stated the majority opinion does not reach the precise question of whether the strip search conducted on Teter was unconstitutional, but it does cast serious doubt on the legality of similar searches going forward.

"In my view, strip-searching pre-arraignment detainees who are held outside the general population of a detention facility is unconstitutional absent reasonable suspicion," Wynn's opinion states. "I agree with the majority that corrections administrators would be wise to take into account recent changes in the legal landscape governing strip searches when crafting policy in this area, particularly in light of the varying opinions in Florence."

The plaintiffs and class members are represented by Elmer Robert Keach III of the Law Offices of Elmer Robert Keach III in Amsterdam, N.Y.; and David J. Mincer of Bailey & Wyant in Charleston, W.Va.

The defendants are represented by D. Aaron Rihn of  Robert Peirce & Associates PC in Pittsburgh; Nicholas Migliaccio of Whitfield, Bryson & Mason LLP in Washington, D.C.; and Daniel Karon of Goldman, Scarlato, Karon & Penny PC in Cleveland.

U.S. Court of Appeals for the Fourth Circuit case number:13-7655

From Legal Newsline: Kyla Asbury can be reached at

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Bailey & Wyant
500 Virginia St E
Charleston, WV 25301

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