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Justice served
,
An appellate court backs local AIDS activists
ruling that strip searches were unreasonable
▼
by Inga Sorensen
“This protest had clearly been billed as a non
ortland resident Michael Ambrosino re
violent
act of civil disobedience,” Smith recalls. “I
counts the moment six years ago when
remember because there had been a lot of back and
he was ordered to strip his clothes, bend
forth at our ACT UP meetings about how to handle
over and spread his cheeks. As if that
this protest. We decided the best way was the
weren’t bad enough, he was forced to do
nonviolent way. We even contacted the authorities
so in front of several other men, both acquaintan
prior to the action to let them know it would be
ces and total strangers.
nonviolent. So not only did they know this was
“It was an extremely embarrassing and humili
going to happen, they knew it was going to be
ating experience,” says Ambrosino, who was 28
peaceful.”
years old at the time and had never before been
“We went to the FDA offices and some of us
arrested. “I don’t believe we had anticipated that
went inside and sat down in front of the door. We
anything quite like that was going to happen.”
were chanting and yelling a little bit, but nothing
Catherine Smith, then in her early 40s, has her
more,”
continues Ambrosino. “A group of federal
own unsettling memories: “I was told to com
marshals came up to us and said they would have
pletely undress, ordered to lift my breasts and turn
to arrest us if we didn’t move. We didn’t, but we
around in a full circle. I don’t remember if I was
also didn’ t resist arrest. They put plastic cuffs on us
told to bend over.”
and took us out to the van. We were brought to
Like Ambrosino, Smith, also of Portland, had
federal courthouse and put in a holding cell.”
never been arrested and had no criminal record or
Men and women, he says, were placed in sepa
history of violent activity. The two were among a
rate holding tanks. The men were strip searched in
group of 10 activists— six men and four women—
plain view of other male detainees. The women
who were arrested in February 1989 during a sit-in
were taken individually into a private room where
at the Food and Drug Administration offices on
they were strip searched by a female marshal.
Northwest Broadway in Portland. Many of those
In their lawsuit, all the plaintiffs claim that the
activists belonged to the then-fledgling direct ac
searches
were unreasonable under the Forth
tion group ACT UP-Portland. They were arrested
Amendment,
but the men also claim the searches
and detained at the federal courthouse, where they
were conducted in an unreasonable manner be
were strip searched by U.S. marshals and later
cause they occurred in front of other detainees. All
released. The group filed a lawsuit claiming the
10 plaintiffs are seeking compensatory damages
strip searches were unreasonable under the Fourth
from
the federal government on the ground that the
Amendment.
searches constituted the tort of invasion of privacy
Six years after that experience, the plaintiffs
under Oregon law.
may finally taste the justice they’ve been seeking
According to the U.S. Marshals Service’s writ
for so long. On June 22, a three-jud^e panel of the
ten
policy, strip searches are prohibited unless
9th U.S. Circuit Court of Appeals in San Francisco
“there is reason to believe that the prisoner may be
backed the plaintiffs’ contentions by reversing
carrying contraband or is considered suicidal or an
earlier decisions by U.S. District Judge Malcolm
escape risk.”
F. Marsh, who had twice dismissed the charges
The appellate panel rejected each of the
claiming the searches were justified.
government’s arguments that the searches were
Defendants in the case include the marshal who
justified. Among those arguments: the tire of a
ordered the strip search, his supervisors and the
prisoner transport van had been slashed, the activ
federal government. The appellate court has re
ists were wearing winter clothing, and the activists
manded the case back to Marsh’s court for trial on
were confrontational.
the question of damages that the plaintiffs suffered
According to court documents, Deputy Robert
from the searches.
Oliverio, the marshal who ordered the strip searches,
“We knew we were right all along, so I’m not
testified that he thought the tires of one of the vans
surprised by the court’s ruling,” says Tom Steenson,
had been slashed, and thus thought the activists
the plaintiffs’ Portland attorney. “The really nice
posed a security threat.
thing about this ruling is that the appellate court
“We were in handcuffs,” says Smith. “You tell
knocked down every single one of the arguments
me
how that could have happened.”
the federal government put forth about why they
According to the judges’ ruling, “Deputy
thought the strip search was justified.”
P
Smith says, “If the marshals had really been
concerned that we were carrying contraband, they
would have checked us before they put us in the
van. They didn’t do any of that. They just took us
into the cells and told us to take all our clothes off.”
Some could speculate this incident is reflective
of a more broad-based hostility the government
has towards AIDS and gay rights activists. In
response to a request under the Freedom of Infor
mation Act, the Federal Bureau of Investigation
recently released documents showing the agency
had kept files on ACT UP chapters, as well as the
Gay Men’s Health Crisis in New York. And just
last month, Secret Service agents donned blue
rubber gloves when a group of gay and lesbian
elected officials visited the White House. The
action was viewed by many across the nation as an
outrageous insult.
“I certainly think [these episodes] are reflective
of a certain mentality some in the government may
hold [toward gay people and AIDS activists],”
says Steenson. “One could view it as a pattern.”
Smith adds, “During the protest six years ago,
we wore pink rubber gloves to parody the authori
ties, who often wore rubber gloves. I thought
maybe we had made a little progress over the years,
but sometimes I wonder.”
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Oliverio, by his own admis
sion, had no actual knowledge
about the plaintiffs’ conduct
at the demonstration, had no
knowledge whether the plain
tiffs had at any time been near
the van with the allegedly
slashed tires, and made no in
quiries to determine whether
the plaintiffs may have been
involved in the alleged slash
ing.
“Had he made any inquir
ies,” continues the panel, “he
might have learned that the
detainees— who were es
corted to the vans while flex-
cuffed— did not and could not
have punctured the tires of the
van. Despite the fact that
Deputy Oliverio could have
learned about the conduct of
the demonstrators simply by
asking one of the other depu
ties who had been present at
the demonstration and arrests,
Deputy Oliverio made no such
inquiries.”
As for the defendants’
claims that the searches were
warranted because the activ
ists were wearing wintercloth-
ing, the court writes: “We re
ject the argument that wear
ing winter clothing alone could give rise to a
reasonable suspicion that the wearer of those clothes
may be concealing contraband. The argument ap
pears to have no limiting principle.”
According to court papers, the marshals also
claimed the search was warranted because plain
tiffs had been chanting slogans such as “ Aren’t you
afraid of us?” “You’ve got blood on your hands,”
and “Mark Hatfield is gay.” The panel, however,
said, “[N]othing in the slogan seems to indicate
that the plaintiffs were likely to be concealing or
carrying any weapons or other contraband. Rather,
the singing and chanting appear to be simply
elements of the disruptive version of civil disobe
dience in which members of ACT UP were en
gaged.”
According to Steenson, the defendants have 45
days from the panel’s June 22 decision to petition
to have the entire appellate court hear the case. He
is hopeful, however, that his clients and the defen
dants will reach a settlement.
“Most strip searches are unconstitutional, in
cluding this one. The panel was very clear in its
ruling,” he says.
Ambrosino adds, “There was no reason for this
search to occur. It was clearly designed to intimi
date and disempower us. That was the sole purpose
of these searches.”
PHOTO BY JAY BROWN
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