An unusual civil rights lawsuit pits a Pennsylvania man against female employees of a halfway house who allegedly “humiliated and embarrassed” him by forcing him to urinate in front of them for drug tests.

Jason Zullinger's allegations of urine test trauma appear to be more severe than any in case law. Not only does he claim that one female staffer at the York County, Pa., halfway house, identified only as Ms. Stover, watched him urinate but also that she made a disparaging remark.

“When Ms. Stover looked at Mr. Zullinger’s penis she said in an insulting tone, 'so that’s what you’re working with,'” he says in his civil rights complaint.

Zullinger stayed at the state-run halfway house after serving two years in prison for a third-offense DUI. “Males in general are very sensitive to, or at least Mr. Zullinger is very sensitive to, remarks and observations about the size of his penis,” he observes, and Stover's alleged comment

is particularly relevant since Mr. Zullinger’s penis is of average (or slightly more than average) in size to the best of his knowledge and belief.

Some Fourth Amendment precedent has addressed whether it is unreasonable for a person of one gender to view the urine test of a prisoner of the other gender. “Forcing an inmate to urinate in front of others, male or female, significantly enhances the humiliating nature of the test,” a New York judge said in Storms v. Coughlin, 600 F.Supp. 1214 (1984).

A body-cavity search of female inmates conducted in the presence of male officers has also been found unconstitutional. Bonitz v. Fair, 804 F.2d 164 (1986).

But in its answer to Zullinger's suit, the Pennsylvania Attorney General's office has asserted the defense of qualified immunity, which means it will argue that the law governing urine collection from inmates was not “clearly established” at the time of Zullinger's tests. The Storms case was decided at only the trial court level, giving it no binding precedential effect.

Zullinger names six female staffers at the halfway house including Stover as defendants, alleging they subjected him “at various times” to mandatory urine tests between July 13, 2009 and April 11, 2010. All of them, he says, “personally peered at and viewed the plaintiff’s genitals, more specifically his penis, as he urinated in a cup.”

“State law and regulation prohibits any member of the opposite sex from conducting a urine sample on any state detainee,” he asserts.

The Pennsylvania Department of Corrections has said the drug-testing policy at the time Zullinger was in the halfway house was “irregardless of gender.” Zullinger's attorney believes the state should be found liable for violating his “personal privacy and dignity” no matter what its policy was.

“You have some very serious privacy violations here,” Don Bailey told the York Daily Record. “We are not saying he should not have been drug tested. But if this was a woman sitting on the commode with a male guard watching her tinkle, imagine the furor there would be.”

Under Schmerber v. California, 384 U.S. 757 (1966), a testing procedure must be routine or “commonplace” such that it involves “virtually no risk, trauma or pain.”

In Storms — the case which is closest to Zullinger's — four New York state prison inmates presented evidence that female nurses were occasionally able to view the process of urine collection. U.S. District Judge Charles S. Haight concluded:

This type of search raises Fourth Amendment concerns precisely because its execution is particularly degrading — that is, in terms of the Schmerber analysis, because the victim's response to it is so extremely negative. It is important, then, that the conduct of the search be no more degrading than is reasonably necessary to satisfy the legitimate security interests of the institution.

In the case of a California prisoner, the 9th U.S. Circuit Court of Appeals upheld a urine test in part because “there were no members of the opposite sex viewing his urination.” Thompson v. Souza, 111 F.3d 694 (1997).

Storms in and of itself may not amount to “clearly established” law. But it does appear clear from Bonitz and Thompson that inmates have some protection from urine tests conducted in an unreasonable manner.

And a test conducted by a person of the opposite gender to the inmate — who also belittles the inmate's anatomy — could hardly be more unreasonable.

By Matthew Heller
10/17/10