Judge Mark S. Davis decides to believe Sheriff Bill Watson (at least for now)
Case: VOLLETTE v. WATSON (E.D.Va. 7-24-2012)
What happened: Portsmouth, VA Sheriff Bill Watson suspected that some nurses working for a private contractor were bringing contraband into his jail. Beyond a reference to an unnamed informant, the record in the case does not reveal any details about why the Sheriff suspected the plaintiff-nurses. He ordered the plaintiff-nurses to be strip searched, but apparently no significant contraband was found because the nurses kept working at the jail. A year later they filed suit. Three days after the suit was filed, Sheriff Watson revoked the security clearance of the nurses, meaning that they can no longer work at the jail and will lose considerable income. Sheriff Watson claims that this revocation of security clearance was not retaliation for the lawsuit. The nurses moved for a preliminary injunction, on First Amendment retaliation grounds, to get their clearances back so they can work at the jail while their lawsuit pends.
Decision: Judge Davis denied the motion, so the plaintiffs will basically remain out of work during the pendency of the lawsuit.
Comment: I am not sure how this decision will affect settlement negotiations. If the plaintiffs lawyers are working on contingency then the fact that the plaintiffs are out of work will not affect them in the pocketbook. On the other hand, there may be increasing pressure from the plaintiff-nurses to settle quickly, and, presumably, on less favorable terms.
Criticism: Sheriff Watson’s claim that the revocation of security clearance was not retaliatory seems to me to be incredible on its face. Also, Sheriff Watson’s bald assertion that some of the plaintiff-nurses had sneaked in contraband seems like an assertion that he would be expected to back up with some specifics, which he apparently did not see fit to provide the court. Given these things, I personally would have found that Sheriff Watson lacked credibility and, accordingly, discounted his improbable and self-serving testimony. Judge Davis, on the other hand, accepted the Sheriff’s testimony. This reflects an awful lot of credibility-deference to the executive branch.
Another criticism: Judge Davis claims that he seeks to preserve the status quo by keeping the plaintiffs out of work while the lawsuit pends. However, I think the appropriate status quo that the preliminary injunction law seeks to preserve is the status quo at the time the suit is filed. Maybe this is even legal error, I don’t know.
Another comment: Moving past the retaliatory “firings,” this case is about whether a warden can routinely strip search jail employees. This year’s SCOTUS case called Florence will likely impact this. Because Florence makes it clear that every incoming prisoner can be strip searched, without any particularized suspicion, one can make a strong argument that the jailhouse employees can be strip searched, too. In fact, if the concerns that give rise to an everyone-gets-strip-searched policy at a particular jail are good faith and real concerns, then consistency would seem to require that the nurses and guards get the same strip search that incoming prisoners do. There might even be an Equal Protection claim lurking against facilities that strip search all prisoners, but not employees (and/or independent contractors). Sauce for the goose . . .