McNabb v. Department of Corrections

127 Wash. App. 854
CourtCourt of Appeals of Washington
DecidedJune 2, 2005
DocketNo. 23310-3-III
StatusPublished
Cited by3 cases

This text of 127 Wash. App. 854 (McNabb v. Department of Corrections) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McNabb v. Department of Corrections, 127 Wash. App. 854 (Wash. Ct. App. 2005).

Opinion

[856]*856¶1 — Charles McNabb sued the Department of Corrections (DOC) to invalidate its force-feeding policy as unconstitutional, illegal, and invalid and to enjoin it from force-feeding him. The court denied his motion for preliminary injunction and summary judgment and granted summary judgment for DOC. Contending he has the constitutional right to refuse to be force-fed, he appeals. We affirm.

Kato, C.J.

¶2 Mr. McNabb is an inmate at the Airway Heights Corrections Center. Before his arrival at the prison on July 12, 2004, he had not eaten voluntarily for five months. Within two days of arriving at the prison, the medical staff inserted a tube into his nose and stomach to force-feed him.1 Mr. McNabb was force-fed for several days, until he agreed to eat on his own to avoid further force-feeding.

¶3 On August 4, 2004, Mr. McNabb moved for declaratory judgment and injunctive relief, claiming DOC’s force-feeding policy violated his constitutional right to privacy, including the right to refuse artificial means of nutrition and hydration under article I, section 7 of the Washington Constitution and his common law right to be free from bodily invasion. The court denied his motion and entered summary judgment for DOC. This appeal follows.

¶4 Mr. McNabb contends DOC’s force-feeding policy violates his right to privacy under article I, section 7 of our state constitution, which states that “[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law.” Both Mr. McNabb and DOC analyze the issue using the factors in State v. Gunwall, 106 Wn.2d 54, 58, 720 P.2d 808 (1986).

[857]*857¶5 The starting point for determining whether our constitution must be interpreted more broadly than the federal constitution in a given context requires an analysis of the Gunwall factors. The following criteria are relevant to this determination: “(1) the textual language; (2) differences in the texts; (3) constitutional history; (4) preexisting state law; (5) structural differences; and (6) matters of particular state or local concern.” Id. In previous article I, section 7 challenges, our Supreme Court has simply adopted the Gunwall court’s analysis of the first, second, third, and fifth factors because they do not vary from case to case. State v. Boland, 115 Wn.2d 571, 576, 800 P.2d 1112 (1990). We will therefore look to only the fourth and sixth Gunwall factors.

¶6 The sixth Gunwall factor examines whether the issue is one of state or local concern. “This factor is relevant because our courts are willing to sacrifice national uniformity for greater protection for our citizens where significant privacy concerns are at stake.” State v. Audley, 11 Wn. App. 897, 903, 894 P.2d 1359 (1995). But the privacy interest involved here does not involve a subject matter for which national uniformity is necessary. See State v. Silva, 107 Wn. App. 605, 621, 27 P.3d 663 (2001) (stating the State’s interest in law enforcement and Washington citizens’ privacy interests are matters of state interest or local concern). Thus, the authority to force-feed a prison inmate is a concern that is particularly local in character. The sixth Gunwall factor is met.

¶7 But the determinative factor here is the fourth Gunwall factor, preexisting state law. This focuses on the degree of privacy protection Washington has historically afforded to individuals in similar situations. See Gunwall, 106 Wn.2d at 61-62, 66. Although Washington courts have consistently held article I, section 7 may provide greater protection against warrantless searches and seizures than [858]*858the Fourth Amendment,2 “ ‘[a] determination that a given state constitutional provision affords enhanced protection in a particular context does not necessarily mandate such a result in a different context.’ ” State v. McKinney, 148 Wn.2d 20, 26, 60 P.3d 46 (2002) (alteration in original) (quoting State v. Johnson, 128 Wn.2d 431, 446, 909 P.2d 293 (1996)).

¶8 Relying on cases dealing with the informed consent doctrine, Mr. McNabb argues Washington law prohibits unconsented invasions of the body, even if for the alleged benefit of the person. He also relies on In re Guardianship of Grant, 109 Wn.2d 545, 747 P.2d 445 (1987), as supporting his claim that he has the constitutional privacy right to refuse artificial means of nutrition and hydration. But these cases do not show that greater protection is extended to prisoners under article I, section 7 than under the Fourth Amendment. Indeed, Mr. McNabb cites no cases analyzing a prisoner’s expectation of privacy under the Washington Constitution. Because “preexisting state law” is a broad inquiry, see Robinson v. City of Seattle, 102 Wn. App. 795, 810, 10 P.3d 452 (2000), the extent to which Washington law has protected the privacy of prison inmates is also relevant to our review of the fourth Gunwall factor.

¶9 Washington courts have determined inmates have a lowered expectation of privacy while in custody. State v. Rainford, 86 Wn. App. 431, 438, 936 P.2d 1210, review denied, 133 Wn.2d 1019 (1997); Audley, 77 Wn. App. at 904 (stating that the Washington Constitution affords no greater protection to an arrestee from warrantless bodily searches than the federal constitution); State v. Baker, 28 Wn. App. 423, 424-25, 623 P.2d 1172 (1981) (allowing routine pat-down searches of prisoners even without articulable suspicion). A diminished right to privacy even [859]*859extends to probationers and parolees. Rainford, 86 Wn. App. at 438.

¶10 Although the privacy provision of our state constitution is largely concerned with protecting citizens from unreasonable searches and seizures, no case has suggested that article I, section 7 was intended to afford greater privacy protection to prison inmates than the federal constitution. Thus, we hold there is no basis to conclude that DOC’s force-feeding policy violates article I, section 7 of our state constitution.

¶11 In any event, our Supreme Court has already recognized that the right to withhold life sustaining treatment, including the right to withhold nasogastric tubes, intravenous feeding and other artificial means of nutrition and hydration, stems independently from the explicit privacy guaranty in article I, section 7 of the Washington Constitution, see Grant, 109 Wn.2d at 553 n.1, 565. But it does not support Mr. McNabb’s claim that DOC’s force-feeding policy also violates his right to privacy. The right to decline force-feeding is not absolute because the State has an interest in protecting the sanctity of the lives of its citizens.

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Related

McNabb v. Department of Corrections
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441 F.3d 543 (Seventh Circuit, 2006)

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127 Wash. App. 854, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcnabb-v-department-of-corrections-washctapp-2005.