Wrong. Ick. Just … no.

That was my gut reaction to a decision by a three-judge panel from the U.S. Court of Appeals for the Seventh Circuit that approved particularly degrading strip searches of about 200 women prison inmates in Illinois.

I'm not the only one who thinks the panel got it wrong. 

The Seventh Circuit today is rehearing the case en banc via Zoom, and all seven amicus briefs—written by legal luminaries including Wilmer Cutler Pickering Hale and Dorr's Seth Waxman; Meir Feder of Jones Day; Michael Faris of Latham & Watkins and Jessica Ellsworth of Hogan Lovells—unanimously side with the prisoners in agreeing that the searches crossed the line.

"Even in prison, the Fourth Amendment stands as a barrier to gratuitous and imperious applications of state power," wrote Daniel M. Greenfield of the MacArthur Justice Center at Northwestern Pritzker School of Law along with lawyers from the ACLU. "That amendment is aimed at making sure that when the government intrudes upon liberty or autonomy in the course of carrying out necessary state functions … its power is still bounded and the government is still held to account for its exercise. The Fourth Amendment does not vanish behind prison walls."

The facts of the case are harrowing. 

Early in the morning on March 31, 2011, correctional officers and cadet trainees at the medium security Lincoln Correctional Center in Lincoln, Illinois entered the prison's housing unit dressed in riot gear, yelling and banging batons on the walls, according to the plaintiffs brief. Screaming obscenities, they rounded up about 200 women without explanation, tightly handcuffing them and taking them to the prison gym.

In view of onlookers including male and female cadets, correctional officers and civilians, the women were strip searched.

U.S. District Judge John Lee sitting by designation described the process in his dissent.

"During the searches, the women stood naked in groups of four to ten, so close to one another that their bodies were touching. One by one, they were told to raise their breasts, bend over, spread their buttocks to expose their vaginal and anal cavities, and cough."

According to the plaintiffs, "Women who were menstruating had to remove from their bodies and present for inspection, in a crowded room for all to see, used sanitary products such as tampons. Because menstruating women were afforded no accommodations during the searches, all of the women had to stand naked on floors contaminated by menstrual blood and other bodily fluids. Throughout the searches, defendants subjected the women to degrading comments about their bodies and hygiene."

So what was the big security threat that required such invasive and humiliating searches?

There was none.

It was just a training exercise for the cadets—a chance to practice strip searches. Illinois Department of Corrections officials admit it wasn't even required. 

Represented by Chicago's Loevy & Loevy, the inmates filed a class action in the Central District of Illinois claiming that their constitutional rights were violated.

In 2016, U.S. District Judge Richard Mills dismissed the women's Fourth Amendment claims on summary judgment. The Eighth Amendment claims for cruel or unusual punishment went to trial. The jury sided with the prison officials, and the plaintiffs are not contesting the verdict.

It's the alleged Fourth Amendment violations that are at issue on appeal. Specifically, did Judge Mills err in ruling that that prisoners categorically lack any Fourth Amendment protection against unreasonable visual searches of their body cavities, regardless of the circumstances of the searches?

Writing for the Seventh Circuit majority, Judge Frank Easterbrook held that the trial court got it right. "Applying the Fourth Amendment to all unwelcome observations of prisoners would eliminate the subjective component and create a sort of Eighth Amendment lite," he wrote. "For more than 20 years, it has been established in this circuit that the Fourth Amendment does not apply to visual inspections of prisoners."

Because the women were forced to spread their own butt cheeks and vaginas rather than the guards doing it, Easterbrook reasoned the search was a permissible visual inspection. 

Lee in his dissent disagreed. "Our prior decisions," he wrote, "seem to coalesce around the following rule—that prisoners retain a legitimate expectation of privacy as to the insides of their bodies, if not the outsides."

"This rule, which recognizes an inmate's right to privacy in her body (albeit, we have held, to a limited degree), finds some support in prior Supreme Court decisions," he continued. "It seems odd, however, to make the question of whether a prisoner has a reasonable expectation of privacy under the Fourth Amendment in the integrity of his or her intimate body cavities dependent on who it is that does the probing or penetrating."

The en banc argument is set for 10 am CT today.