I thought that it was interesting that all of the judges writing in this opinion danced around the facts. None of them were willing to describe the facts underlying the claim was, and that is fairly unusual at the higher appellate levels. (The original panel of course did describe them.)

I do not, and further submit that Ted’s comment is devoid of same.

Like Morin, I’m skeptical of prisoner claims of abuse; anyone who has spent time working at a federal court knows that, even after the PLRA, prisoners have a lot of free time to engage in pro se litigation to harass guards, and the blizzard of false claims overwhelms litigation over legitimate claims of prisoner abuse. It’s entirely possible that the prisoner is retaliating against a female guard who he harassed by exposing himself, and has concocted wild claims to further humiliate his guard and/or to try to get out of being punished for his behavior. But like many of the commenters, I agree that we don’t know enough to evaluate the merits of this case yet.

Poor choice of words? Or possibly something more sinister …

Unfortunately, I am unable to access the lower court’s decision in this case, so if someone else can provide a link, perhaps we’ll be able to better assess what the lower court’s (upheld) ruling was based on.

My point, Doug, is that the cause of action requires the showing of an “injury.” It doesn’t matter who the historically exploited “group” is — what matters is the individual plaintiff’s claim. My experience with the individuals in the federal prison system makes me skeptical of a prisoner’s claim that he suffered in this context.

It is indeed conceivable that a man in this position could be humiliated and objectified by this experience. I am certain that Doug and Sam could construct a variety of scenarios here that would present a legitimate 4th Amendment case.

A word about Doug’s comment that “if you accept the laws should apply to a particular group but the same laws should not apply to another, then you don’t agree with this constitutional principle and therefore don’t agree with the U.S. constitution:”

This isn’t an EP case, but nonetheless, I believe that the EP clause applies to individuals, not groups.

If it’s a criminal case, the defendant should lose; if it’s a civil case, the defendant should win.

It’s a nice bright-line rule that is easy to apply, and we all know that only judicial activists would disagree with the outcomes that would result under my proposed rule.