The Fourth Amendment and Video Recording in Bathrooms, in Civil Commitment Units for Sex Offenders

Arnzen v. Palmer (N.D. Iowa Apr. 12, 2012) deals with an interesting and unusual questions: To what extent, if any, does the Fourth Amendment restrict searches in civil commitment units for sex offenders?

After sex offenders serve out their prison term, they may be detained — often indefinitely — if a court is satisfied that there’s enough evidence that a “mental abnormality” or “mental disorder” makes them continuing threats to others. This is an extension of the traditional state power to lock people up when they are insane in a way that makes them dangerous to others, even if those people have finished their criminal sentence, or have been found not guilty of a crime by reason of insanity. In principle, the dangerously insane can be locked up even before they commit a crime, or something that would be a crime but for their being insane, but the sexual offender commitment statutes are generally limited to people who have already committed a crime. On the other hand, the sexual offender commitment statutes generally require a lesser showing of mental illness than do the statutes for committing the dangerously insane. In either case, both the committed dangerously insane and the committed post-sentence sex offenders are not being imprisoned as criminals. But they are still being imprisoned.

The question, then, is what Fourth Amendment rights against unreasonable searches apply to such civilly committed people. While a sex offender is in prison, serving out his criminal sentence, his protection against searches is extremely minor, because pretty much any search of convicted criminals that’s at all related to penological purposes is seen as permissible in prison. Should the same apply to the civilly committed who are no longer serving their criminal sentence?

The Magistrate Judge’s Report and Recommendation in Arnzen suggests that some Fourth Amendment restrictions on searches do exist for the civilly committed, at least where video recording of bathrooms is involved. An excerpt:

The plaintiffs are patients at the Civil Commitment Unit for Sex Offenders (“CCUSO”) in Cherokee, Iowa. The defendants are officials at the facility. The defendants have installed video cameras in all of the patients’ restrooms. They took this action after a patient with a serious communicable disease used a restroom to engage in consensual sex with another patient, which violated the rules of the institution….

If the plaintiffs were not in any type of custody, the monitoring of their bathroom activities obviously would violate their privacy rights. On the other hand, the plaintiffs would have no right to privacy if they were being confined in a prison rather than in a civil commitment unit. The rights of the plaintiffs here fall somewhere between these two situations. CCUSO is not a prison, and the plaintiffs are not convicted prisoners. They have been civilly committed to CCUSO because they have been adjudged to be “dangerous persons” under Iowa law. As such, they retain some of their liberty interests, although those interests “are considerably less than those held by members of free society.” …

In Serna v. Goodno, 567 F.3d 944 (8th Cir.2009), the Eighth Circuit Court of Appeals discussed the rights retained by persons involuntarily committed to a state sex offender facility ….. ["][T]he best analogy [for the involuntarily committed] is to pretrial detainees because “confinement in a state institution raise[s] concerns similar to those raised by the housing of pretrial detainees, such as the legitimate institutional interest in the safety and security of guards and other individuals in the facility, order within the facility, and the efficiency of the facility’s operations.["] …

“The overriding function of the Fourth Amendment is to protect personal privacy and dignity against unwarranted intrusion by the State.” The court finds that the plaintiffs have greater privacy rights than those granted to convicted prisoners, and that the defendants’ use of video cameras under the circumstances of this case infringes on those rights. Accordingly, the court finds that the plaintiffs have shown that they are likely to succeed on the merits….

The public interest in ensuring that patients not act out physically and/or sexually weighs against preliminary injunctive relief in this case. However, the court finds that in light of the specific injunctive relief recommended in this order, the public interest will be adequately protected….

CCUSO is appropriately concerned about activities of patients in the bathrooms at the facility, but to its credit, in its policy it has attempted to protect, at least to a certain extent, the privacy rights of its patients. The court believes it can fashion relief that will address the defendants’ concerns while, at the same time, protect the plaintiffs’ interests while the case is processed.

The court recommends that the plaintiffs’ motion for preliminary injunction be granted, and that the defendants be enjoined as follows:

During the pendency of this action, video cameras may be maintained and operated in the restrooms and showers of the facility, but no one is permitted to monitor or view the video or any recordings of the video without first obtaining an order from this court authorizing such viewing. The court will authorize such viewing if the requesting party establishes that there is a reasonable suspicion that evidence of criminal behavior, sexual contact, and/or acts jeopardizing the secure and safe operation of the facility will be found on the video or on a recording of the video. Any motion requesting authorization to view a video or a recording of a video may be filed ex parte and under seal.