Kelsey v. County of Schoharie

07-0893-cv

Kelsey v. County of Schoharie

1 UNITED STATES COURT OF APPEALS

2 FOR THE SECOND CIRCUIT

3 August Term 2008

4

5 Docket No. 07-0893-cv

6 (Argued: October 3, 2008 Decided: May 22, 2009)

7 JOHN KELSEY and TIMOTHY WRIGHT, both individually

8 and on behalf of a class of others similarly

9 situated,

10 Plaintiffs-Appellees,

11 v.

12 THE COUNTY OF SCHOHARIE, JOHN S. BATES JR., both individually

13 and his official capacity as Sheriff of the County

14 of Schoharie, and JIM HAZZARD, both individually and in

15 his capacity as Administrator of the Schoharie County

16 Jail,

17 Defendants-Appellants.

18 Before: JACOBS, Chief Judge, and MINER and SOTOMAYOR, Circuit

19 Judges.

20 Appeal by defendants-appellants Bates and Hazzard,

21 respectively the Sheriff of Schoharie County, New York, and the

22 Administrator of the Schoharie County Jail, from a Decision and

23 Order of the United States District Court for the Northern

24 District of New York (Kahn, J.) denying their motion for summary

25 judgment in an action for injunction and damages challenging a

26 clothing exchange procedure for newly admitted jail inmates as a

27 strip search violative of the Fourth Amendment when executed

28 without reasonable suspicion, the appellants having asserted,

29 inter alia, the defense of qualified immunity.

30 Decision and Order reversed and remanded with instructions

31 to dismiss the action.

32 Judge Sotomayor dissents in a separate opinion.

1

1 Bruce Menken, Jason Rozger,

2 Beranbaum Menken Ben-Asher &

3 Bierman, LLP, New York, New York,

4 for Plaintiffs-Appellees.

5 E. Robert Keach III, Law Offices of

6 Elmer Robert Keach III, P.C.,

7 Amsterdam, New York, for

8 Plaintiffs-Appellees.

9 Gregg Johnson, Girvin & Ferlazzo,

10 P.C., Albany, New York, for

11 Defendants-Appellants.

2

1 MINER, Circuit Judge:

2 INTRODUCTION

3 Defendants-appellants John S. Bates Jr., Sheriff of

4 Schoharie County, New York, and Lt. Jim Hazzard, Administrator of

5 the Schoharie County Jail (together, the “defendants”) appeal

6 from a Decision and Order entered in the United States District

7 Court for the Northern District of New York (Kahn, J.) denying

8 their motion for summary judgment in an action brought against

9 them by plaintiffs-appellees John Kelsey and Timothy Wright

10 (together, the “plaintiffs”). Kelsey v. County of Schoharie, No.

11 1:04-CV-299, 2007 WL 603406 (N.D.N.Y. Feb. 21, 2007). The County

12 of Schoharie is also named as a defendant in the action and

13 joined in the motion. The plaintiffs seek an injunction and

14 damages, claiming that the clothing exchange procedure for newly

15 admitted inmates at the Schoharie County Jail constitutes a strip

16 search violative of the Fourth Amendment when executed without

17 reasonable suspicion. The defendants, sued in their official and

18 individual capacities, base their motion for summary judgment,

19 inter alia, on the defense of qualified immunity. The learned

20 District Court, identifying a possible constitutional violation,

21 found “material facts” in dispute and therefore rejected the

22 defense of qualified immunity, with leave to reassert the defense

23 “at the proper time.” Kelsey, 2007 WL 603406, at *8. For the

24 reasons that follow, we reverse the Decision and Order of the

25 District Court and remand with instructions to dismiss the

26 action.

3

1 BACKGROUND

2 I. The Clothing Exchange According To Defendants

3 The Schoharie County Jail is operated by the Schoharie

4 County Sheriff’s Department under the direction of Sheriff Bates.

5 Day-to-day responsibility for the facility is vested in Lt.

6 Hazzard as jail administrator. Bates and Hazzard have

7 established and implemented procedures for the admission of male

8 inmates to the facility and state that they have familiarized and

9 trained all subordinate personnel at the facility in these

10 procedures. Included in the intake procedure is a clothing

11 exchange, whereby newly admitted inmates are issued distinctive

12 facility clothing in exchange for their street clothes. This

13 clothing exchange requirement is applied only to those male

14 inmates who are not expected to make bail and therefore are to be

15 confined in a housing unit at the jail. According to Sheriff

16 Bates,

17 [t]he purposes of the clothing issue include, ensuring

18 that each inmate has clean clothing free of infestation

19 and to make sure that inmates are clearly identifiable

20 and can be readily distinguished from visitors, members

21 of the public and staff. For some inmates, the

22 facility-issued clothing is better than the clothing

23 and personal care items they have outside the facility

24 and thus may positively impact their state of mind

25 while being housed at the [jail]. The issuance of

26 clothing is commonly referred to as the clothing

27 exchange process.

28 Before the clothing exchange, a new inmate undergoes a

29 booking procedure. He is first transported from a sally port to

30 a holding area containing two holding cells next to a control

31 room and booking room. In the holding area, the inmate is

4

1 required to remove his coat (if any) and empty his pockets.

2 Thereafter, he is subjected to a “pat frisk” and sometimes to a

3 search by a hand-held metal detector, all while the inmate is

4 fully clothed. According to the Sheriff, no other type of search

5 is authorized during the intake period. The inmate then is

6 placed in a holding cell within the holding area until the

7 admitting corrections officer is ready to proceed with the

8 booking process.

9 The inmate is next required to sit beside a window in the

10 holding area. The booking room is on the other side of the

11 window, through which the inmate is interviewed by the

12 corrections officer. The officer enters the answers to his

13 questions into a computer. The questions pertain to such matters

14 as pedigree, medical information, scars and tattoos. Next, the

15 corrections officer in charge of the booking procedure returns to

16 the holding area, where he photographs and fingerprints the

17 inmate. The inmate remains in his street clothes throughout the

18 booking process.

19 It is only after the booking process is completed that the

20 clothing exchange takes place for those inmates who are to be

21 confined in one of the housing units. Although there is no

22 written policy for the clothing exchange itself, the defendants

23 insist that they have established a protocol for the clothing

24 exchange and have instructed all jail personnel in the protocol

25 as follows: A corrections officer produces in the holding area a

26 mesh property bag into which the inmate is to place his clothes.

5

1 The officer instructs the inmate to stand on one side of a 42" x

2 48" masonry half-wall with the officer on the other side. The

3 officer then lays out on the half-wall the jail uniform, a 48"

4 long white towel, soap and other personal items. The inmate is

5 then instructed to disrobe and place his street clothes into the

6 mesh bag, which is held open by the officer on the other side of

7 the half-wall. The inmate may use the towel for privacy as he

8 disrobes preparatory to taking a required shower and dressing in

9 the jail uniform.

10 While the inmate is showering, the officer takes the

11 inmate’s street clothes to a property room across the hallway

12 from the holding area. There, the officer inspects the clothing

13 for contraband, tags it, and sends it to the laundry room for

14 washing. When he returns to the holding area, he escorts the

15 newly clothed inmate to the appropriate housing unit. The

16 protocol does not call for the officer to conduct a personal

17 search or body inspection or to observe the inmate taking a

18 shower or getting dressed. Although there is no written policy

19 specifically addressed to the clothing exchange procedure, there

20 is a written policy entitled “Inmate Processing.” Within that

21 policy is a provision for medical screening which provides: “A

22 visual analysis of the inmate will be conducted throughout the

23 admission process.”

24 A written policy for strip searches and body cavity searches

25 has been established at the jail under the title “Control of and

26 Search for Contraband.” It provides that “[a] ‘strip/strip frisk

6

1 search’ shall not be routinely conducted.” Such a search is

2 allowed only “[w]here an officer has made a determination that

3 there is reasonable suspicion to believe that the inmate should

4 be searched” or “[w]here an officer has reasonable suspicion to

5 believe an inmate is hiding contraband on his person and/or the

6 inmate is in possession of contraband.” The policy provides that

7 “[w]hen inmates cooperate in the conduct of a strip/strip frisk

8 search, the inmate’s body will not be touched.” Body cavity

9 searches in the jail “[m]ay be authorized only in circumstances

10 where there are compelling reasons to believe that the inmate(s)

11 to be searched have secreted in a rectal/vaginal cavity

12 contraband, the nature of which constitutes a clear threat to the

13 safety and security of the facility and/or a threat to the safety

14 and well being of any person.” Sheriff Bates “do[es] not recall

15 a single occasion when a [b]ody cavity search was conducted on an

16 inmate during [his] tenure as Sheriff.”

17 Sheriff Bates has put forth the proposition that “the

18 clothing exchange procedure is not intended as a personal search

19 of the inmate but rather a brief administrative process that

20 precedes newly-admitted inmates[’] transport to a housing unit.”

21 He has represented, “[u]pon information and belief,” that

22 “inmates are never instructed to squat, bend, turn, open their

23 mouth, manipulate their body, or in any other manner expose

24 themselves for a personal search or inspection” during the

25 clothing exchange. Jail Administrator Hazzard avers that

26 corrections officers at the jail have been trained to perform the

7

1 prescribed clothing exchange procedure and that “[t]he clothing

2 exchange is simply intended to get inmates into the jail uniform

3 and secure their street clothing on their way to housing.”

4 However, he is aware of three occasions when the prescribed

5 procedure was not followed: On one occasion, the corrections

6 officer left the holding area and left the inmate alone to change

7 out of his street clothes and into his prison clothes and to

8 shower. On the other two occasions, the corrections officer

9 caused the clothing exchange to take place in the holding cell

10 instead of allowing the inmate the benefit of the privacy

11 afforded by the masonry half-wall.

12 II. The Clothing Exchange According To Plaintiffs

13 Plaintiff Kelsey arrived at the Schoharie County Jail on

14 October 16, 2002, having been transported there from the Albany

15 County Jail, where he worked as a corrections officer. He had

16 been arrested for a civil violation of the Family Court Act in

17 connection with a child support matter. He underwent the booking

18 procedure, including photographing and fingerprinting, before the

19 required clothing exchange. He testified at his deposition that

20 a corrections officer laid out the jail uniform on a bench in

21 front of the half-wall. He proceeded to take off his street

22 clothes in the open booking area, as directed, in order to put on

23 the jail uniform. Kelsey asked the officer if he had to remove

24 his underwear, and the officer replied: “Yes. Everything.” The

25 officer stood directly in front of Kelsey during the clothing

26 exchange, and Kelsey placed his street clothes into a clear

8

1 garbage bag at the request of the officer.

2 In his deposition, Kelsey stated that he asked the officer

3 during the clothing exchange: “Do I have to do this here?” and

4 that the officer answered: “Yes, you do.” Kelsey testified that

5 the officer’s “eyes were looking up and down my body, so I assume

6 he saw my genitals.” Kelsey found the entire process

7 “embarrassing” and “[h]umiliating.” Kelsey testified that during

8 the clothing exchange he was not prevented from turning around,

9 from going behind the half-wall or from using the towel or the

10 bag to obscure the officer’s view of his body. He also stated

11 that he was not required to lift his arms, to open his mouth, to

12 expose his buttocks or to manipulate any part of his body. He

13 did not indicate that he was touched by the officer in any way.

14 The Cobleskill Police Department brought plaintiff Wright to

15 the Schoharie County Jail at about 3:30 a.m. on September 5,

16 2003, after Wright’s arrest for driving while intoxicated. In

17 his deposition, Wright testified that, following his interview at

18 the jail, he was placed in a holding cell with the cell door

19 open. An officer then brought him a jail uniform, a white towel,

20 and a mesh bag for his street clothes. Wright sat on a bench in

21 the cell and removed his street clothing, which he placed in the

22 bag. He then proceeded to take a shower as directed, taking the

23 towel with him. He returned to the holding cell with the towel,

24 got dressed in the jail uniform and was escorted to a housing

25 unit. According to Wright, a corrections officer stood in front

26 of him as he removed his street clothes (a process that took one

9

1 minute) and placed them in the mesh bag provided. When asked in

2 what direction he was facing as he undressed, Wright testified:

3 “At somewhat of an angle to [the officer], but I can’t recall 100

4 percent which way I was facing. It was like sort of facing

5 towards the officer.” Wright also testified that when he dressed

6 in the holding cell after the shower, no one was present in the

7 holding area. In response to a question relating to the mental

8 and emotional stress allegedly suffered, Wright described his

9 experience as “rather unpleasant” and stated: “[I]t was, you

10 know, just a rather humiliating kind of — shameful kind of, just

11 being naked in front of at least one other individual and

12 possibly in the view of others.”

13 Plaintiff Wright’s description of the deviations from the

14 clothing exchange protocol is consistent with the deposition

15 testimony of Joseph Kenyon, a corrections officer employed at the

16 Schoharie County Jail. According to Officer Kenyon, inmates are

17 required to stand in front of him and face him during the entire

18 clothing exchange. He watches the inmates as they remove their

19 clothing, the disrobing takes place in the “holding cell where

20 the inmate is at,” and there is no option to disrobe in private.

21 III. The Motion for Summary Judgment and the Decision of the

22 District Court

23 Relying upon affidavits as well as depositions and other

24 materials obtained during discovery, the defendants moved for

25 summary judgment in the District Court. They contended that the

26 clothing exchange procedure did not entail a strip search, that

10

1 inmates were allowed to preserve their privacy in various ways

2 during the exchange, and that established Jail policy permits a

3 strip search only on reasonable suspicion. Defendants also

4 raised the defense of qualified immunity in the motion.

5 Plaintiffs responded that the clothing exchange process requires

6 a visual examination of each inmate during disrobing and that

7 such examination constitutes an unreasonable search for Fourth

8 Amendment purposes when conducted without reasonable suspicion.

9 In a written opinion denying the motion for summary

10 judgment,1 the District Court stated as follows:

11 Defendants have not met their burden to prove that

12 there is no issue of material fact as to whether [the

13 jail’s] policies and practices require COs to observe

14 inmates as they remove their street clothes. However,

15 a question remains: if a CO w[ere] required to observe

16 an inmate undress, would this procedure constitute an

17 unreasonable search under the Fourth Amendment to the

18 United States Constitution?

19 Kelsey, 2007 WL 603406, at *5.

20 Consistently characterizing the clothing exchange as the

21 “Exchange/Strip Search Process” throughout its opinion, the

22 District Court examined the record and concluded that the

23 observation of a newly admitted inmate in the process of

24 disrobing is a search for contraband. Id. at *6. The District

25 Court also noted the defendants’ contention that the presence of

26 a corrections officer serves as a deterrent to the transfer or

27 destruction of contraband. Id. at *6. The District Court

1

1 In the same opinion, the District Court granted

2 plaintiff’s motion for class certification. Kelsey, 2007 WL

3 603406, at *14.

11

1 concluded: “If this admission is accurate, it can mean only one

2 thing: that the exchange/strip search process is meant to serve

3 as a search for contraband — even when there is no reasonable

4 suspicion to do so.” Id. at *7. As the District Court correctly

5 noted, a strip search without reasonable suspicion is prohibited

6 by our precedent. However, the court made no final pronouncement

7 on the constitutionality of the search it had identified:

8 “[T]his Court cannot grant summary judgment to the Defendants

9 while there is credible conflicting evidence in the record

10 regarding the nature of the CO’s observation of inmates as they

11 disrobe.” Id. The District Court thus did not find that the

12 challenged searches were unreasonable. The court did find,

13 however, that the defendants were amenable to suit individually

14 “[a]s a consequence of their involvement in the maintenance of

15 [the jail’s] policies and practices.” Id. Finally, the court

16 briefly addressed the qualified immunity defense as follows:

17 There remains a dispute regarding material facts

18 related to the constitutionality of the exchange/strip

19 search process. As a result, it would be premature to

20 determine whether Defendants Bates and Hazzard are

21 responsible for violating clearly established

22 constitutional law or are immune from suit under the

23 qualified immunity doctrine. Defendants Bates and

24 Hazzard may renew their defense at the proper time.

25 Id. at *8.

26 ANALYSIS

27 I. Of Appealability and Qualified Immunity

28 It is the District Court’s denial of qualified immunity that

29 permits the defendants to bring this appeal to us as an exception

30 to the rule of finality. See Mitchell v. Forsyth, 472 U.S. 511,

12

1 530 (1985) (“[A] district court’s denial of a claim of qualified

2 immunity, to the extent that it turns on an issue of law, is an

3 appealable ‘final decision’ within the meaning of 28 U.S.C.

4 § 1291 notwithstanding the absence of a final judgment.”)

5 Interlocutory appeal in this sort of case “is not permitted if

6 the district court’s denial of summary judgment for qualified

7 immunity rests on a finding that there were material facts in

8 dispute.” Genas v. N.Y. Dep’t of Corr. Servs., 75 F.3d 825, 830

9 (2d Cir. 1996). The Supreme Court teaches that “a district

10 court’s summary judgment order that, though entered in a

11 ‘qualified immunity’ case, determines only a question of

12 ‘evidence sufficiency,’ i.e., which facts a party may, or may

13 not, be able to prove at trial . . . is not appealable.” Johnson

14 v. Jones, 515 U.S. 304, 313 (1995).

15 Despite the bar to appealability that factual issues may

16 provide in the qualified immunity context, we have observed that

17 as long as the defendant can support an immunity

18 defense on stipulated facts, facts accepted for

19 purposes of the appeal, or the plaintiff’s version of

20 the facts that the district court deemed available for

21 jury resolution, an interlocutory appeal is available

22 to assert that an immunity defense is established as a

23 matter of law.

24 Salim v. Proulx, 93 F.3d 86, 90 (2d Cir. 1996). We accept the

25 plaintiffs’ version of the facts in making our determination

26 herein, as will be seen. Accordingly, we take jurisdiction over

27 the district court’s denial of defendants’ motion for summary

28 judgment to the extent that the motion is grounded in qualified

29 immunity, and our review is de novo. See Jones v. Parmley, 465

13

1 F.3d 46, 55 (2d Cir. 2006).

2 Under the doctrine of qualified immunity, “government

3 officials performing discretionary functions generally are

4 shielded from liability for civil damages insofar as their

5 conduct does not violate clearly established statutory or

6 constitutional rights of which a reasonable person would have

7 known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In

8 assessing an officer’s eligibility for the shield, “the

9 appropriate question is the objective inquiry whether a

10 reasonable officer could have believed that [his actions were]

11 lawful, in light of clearly established law and the information

12 the officer[] possessed.” Wilson v. Layne, 526 U.S. 603, 615

13 (1999). Qualified immunity is also said to protect the

14 government officer “if it was ‘objectively reasonable’ for him to

15 believe that his actions were lawful at the time of the

16 challenged act.” Lennon v. Miller, 66 F.3d 416, 420 (2d Cir.

17 1995) (citing Anderson v. Creighton, 483 U.S. 635, 641 (1987));

18 see also Martinez v. Simonetti, 202 F.3d 625, 633–34 (2d Cir.

19 2000).

20 II. Of the Threshold Inquiry

21 Until the issuance of the Supreme Court’s opinion in Pearson

22 v. Callahan, 129 S. Ct. 808 (2009), the following threshold

23 inquiry was mandatory:

24 A court required to rule upon the qualified

25 immunity issue must consider, then, this threshold

26 question: Taken in the light most favorable to the

27 party asserting the inquiry, do the facts alleged show

28 the officers’ conduct violated a constitutional right.

29 This must be the initial inquiry.

14

1 . . . .

2 If no constitutional right would have been

3 violated were the allegations established, there is no

4 necessity for further inquiries concerning qualified

5 immunity.

6 Saucier v. Katz, 533 U.S. 194, 201 (2001). While it is now true

7 “that the Saucier protocol should not be regarded as mandatory in

8 all cases, [the Supreme Court] continue[s] to recognize that it

9 is often beneficial.” Pearson, 129 S. Ct. at 818. Accordingly,

10 we are no longer required to make a “threshold inquiry” as to the

11 violation of a constitutional right in a qualified immunity

12 context, but we are free to do so. Id. at 821. The inquiry is

13 said to be appropriate in those cases where “discussion of why

14 the relevant facts do not violate clearly established law may

15 make it apparent that in fact the relevant facts do not make out

16 a constitutional violation at all.” Id. at 818. This is such a

17 case. The Supreme Court’s current teaching is that “the Saucier

18 Court was certainly correct in noting that the two-step procedure

19 promotes the development of constitutional precedent and is

20 especially valuable with respect to questions that do not

21 frequently arise in cases in which a qualified immunity defense

22 is unavailable.” Id.

23 The development of constitutional precedent is especially

24 important here, where (1) this Court has not spoken on the issue

25 of the constitutionality of clothing exchange procedures in jails

26 although the issue has been presented in district courts in this

27 circuit, see, e.g., Marriott v. County of Montgomery, 227 F.R.D.

15

1 159, 169–70 (N.D.N.Y. 2005) (holding that a jail facility’s

2 “change-out” procedure was a “strip search” and in violation of

3 the Fourth Amendment to the Constitution); see also Williams v.

4 County of Niagara, No. 06-CV-291A, 2008 WL 4501918, at *2

5 (W.D.N.Y. Sept. 29, 2008) (involving a class action certification

6 question where the defendants argued, inter alia, that a

7 “‘clothing change-out’” procedure in a jail “does not constitute

8 a strip search and is constitutional”); and (2) the

9 constitutionality of clothing exchange procedures in jails may

10 never be developed if this Court were to dispose of all

11 challenges relating to the procedures simply because the

12 procedure is not “clearly established” as a “strip search”

13 violative of the Fourth Amendment.

14 It is also said that addressing the constitutional issue

15 first may not only avoid the possibility of drawn-out litigation

16 and the imposition of unwarranted liability, but may also serve

17 to clarify official conduct standards. See Sound Aircraft

18 Servs., Inc. v. Town of E. Hampton, 192 F.3d 329, 334 (2d Cir.

19 1999). We think that all these purposes are served by

20 undertaking the constitutional inquiry first in this case. When

21 the facts, viewed in light most favorable to the plaintiff, do

22 not demonstrate that an officer’s conduct violated a

23 constitutional right, the court need not further pursue the

24 qualified immunity inquiry, “and the officer is entitled to

25 summary judgment.” Gilles v. Repicky, 511 F.3d 239, 244 (2d Cir.

26 2007).

16

1 III. Of Strip Searches and the Fourth Amendment

2 In undertaking our threshold constitutional inquiry, we

3 first take note of our long-standing precedent covering strip

4 searches of those arrested for misdemeanors:

5 The Fourth Amendment requires an individualized

6 “reasonable suspicion that [a misdemeanor] arrestee is

7 concealing weapons or other contraband based on the

8 crime charged, the particular characteristics of the

9 arrestee and/or the circumstances of the arrest” before

10 [he] may be lawfully subjected to a strip search.

11 Hartline v. Gallo, 546 F.3d 95, 100 (2d Cir. 2008) (citing Weber

12 v. Dell, 804 F.2d 796, 802 (2d Cir. 1986)) (first alteration in

13 original); see also Walsh v. Franco, 849 F.2d 66, 68–69 (2d Cir.

14 1988). The written policy of the Schoharie County Jail tracks

15 the language of our precedent by providing that a strip search

16 may be conducted only “[w]here an officer has made a

17 determination that there is reasonable suspicion to believe that

18 the inmate should be searched” or “[w]here an officer has

19 reasonable suspicion to believe an inmate is hiding contraband on

20 his person and/or the inmate is in possession of contraband.”

21 There is to be no touching of the body unless the inmate fails to

22 “cooperate” in the search. A much higher standard is required

23 for body cavity searches: “[c]ompelling reasons to believe that .

24 . . contraband . . . constitut[ing] a clear threat to the safety

25 and security of the facility” is concealed in a body cavity. The

26 version of events at the Schoharie County Jail described by the

27 plaintiffs do not describe a body cavity search, and Sheriff

28 Bates has indicated that no such searches have been conducted at

29 the jail during his tenure as Sheriff.

17

1 Various terms are used to describe the inspection of a naked

2 body, and the terms are distinguished by the degrees of intrusion

3 involved in the search for contraband. The term “strip search”

4 is used generally to describe any inspection of the naked body.

5 See N.G. v. Connecticut, 382 F.3d 225, 228 n.4 (2d Cir. 2007).

6 An individual being strip searched may be required to move his

7 body in various ways to permit a more complete inspection. Id.

8 A “visual body-cavity search” is a strip search that entails the

9 specific examination of the genitals and anus, without any bodily

10 contact by the inspector. Id. Finally, a “manual body-cavity

11 search” is a strip search that involves a naked body examination,

12 including a viewing of the genitals and anus, by touching or

13 probing with an instrument. Id.

14 IV. Of the Clothing Exchange at the Schoharie County Jail

15 For purposes of this appeal, we accept the plaintiffs’

16 description of the clothing exchange procedure, although the

17 procedure they describe appears to deviate in certain respects

18 from the protocol purportedly established by the defendants.2

19 See Salim, 93 F.3d at 90. We therefore proceed, taking the facts

2

Although the dissent, in several places, accuses us of

having accepted the defendants’ version of the facts, that is not

so. Most of the half dozen plaintiffs’ “facts” that the dissent

claims we ignore are expressly considered in this opinion, as the

reader can confirm. Moreover, the third “fact” identified by the

dissent — that Kelsey had to walk naked to obtain his prison

uniform — is a distortion of the record. Kelsey testified that

he “reached over” and “grabbed the . . . uniform,” not that he

“walk[ed] while naked to obtain the uniform.” It is undisputed

that the plaintiffs were not entirely deprived of the means for

protecting their modesty.

18

1 in the light most favorable to plaintiffs, to examine the

2 constitutional question presented. See Pearson, 129 S. Ct. at

3 818.

4 We first observe that the plaintiffs make no claim that they

5 were subjected to visual or manual body cavity searches.

6 Plaintiff Kelsey testified that a corrections officer stood in

7 front of him during the brief period when he removed his street

8 clothes and put on the jail uniform. Kelsey testified that he

9 “assume[d]” that the officer “saw [his] genitals” during that

10 time. Kelsey was not asked to manipulate his body in any way or

11 to assume any particular position. Nor was he prevented from

12 protecting his privacy by turning away from the officer as he

13 undressed, by concealing the lower half of his body behind the

14 half-wall in front of which he was standing, or by using the

15 towel that was available to him during the clothing exchange. In

16 any event, briefly “seeing” a man’s genitals during a clothing

17 exchange does not amount to a strip search.3

18 Plaintiff Wright’s characterization of the clothing exchange

19 as a search is even more attenuated. According to Wright, the

3

The dissent argues that “any statement by the majority

about the constitutionality of forcing arrestees to strip is

dicta.” This ignores the entire basis of this lawsuit, which

attacks a policy that (on plaintiffs’ version of the facts)

compels arrestees to remove all of their clothing in the presence

of a watchful officer in preparation for showering and changing

into prison attire. We assume, as we must, that inmates are

required to remove their clothing in the presence of an officer.

We nonetheless hold that the clothing exchange process, as

described by plaintiffs, was not an unreasonable search under the

Fourth Amendment.

19

1 clothing exchange took place in a holding cell, where he disrobed

2 in one minute as a corrections officer stood in front of him.

3 Wright testified that he undressed “[a]t somewhat of an angle” to

4 the officer but could not “recall 100 percent which way [he] was

5 facing.” As best he could describe it, “[it] was like sort of

6 facing toward the officer.” Apparently, a towel was available to

7 him as he disrobed, and he took the towel with him as he went to

8 take a shower before returning to the holding cell with the

9 towel. Back in the cell, he dressed in the jail uniform.

10 According to Wright’s version of events, no officer was present

11 when he put on the jail uniform. Also, as with Kelsey, Wright

12 was not required to move or display his body in any particular

13 way.

14 Corrections Officer Kenyon, who supported the testimony of

15 plaintiff Wright, at least to the extent of indicating that the

16 clothing exchange took place in a holding cell (rather than

17 behind the half-wall), declared that “the purpose of the clothing

18 exchange process, as far as I know, is simply to get inmates into

19 the jail uniform and secure their street clothing.”4

20 Nevertheless, a necessary function of any corrections officer is

21 to observe inmates at all times, whether the inmate is eating,

22 sleeping, showering, undertaking recreational activity or

4

Contrary to the dissent’s reading of our opinion, this

does not suggest that the subjective intent of the corrections

officers is to be considered. It supports only the fact that the

corrections officers were charged with effectuating a clothing

exchange.

20

1 engaging in any other activity within the confines of any jail.

2 We conclude that the incidental observation of the body of

3 an arrestee during a required clothing exchange, in the manner

4 described by plaintiffs, is not an unreasonable search under the

5 Fourth Amendment. Moreover, it seems to us that a clothing

6 exchange observed by corrections officers under the circumstances

7 described by plaintiffs is related to “maintaining institutional

8 security and preserving internal order and discipline[,]

9 essential goals that may require limitation or retraction of the

10 retained constitutional rights of both convicted prisoners and

11 pretrial detainees.” Bell v. Wolfish, 441 U.S. 520, 546 (1979).

12 The objectives served by a clothing exchange, according to

13 Sheriff Bates, include assurance that each inmate has clothing

14 that is clean and free of infestation; that inmates are clearly

15 identifiable and distinguishable from visitors, staff and members

16 of the public; and that a positive state of mind be instilled in

17 each inmate.

18 In assessing the need to promote the foregoing interests, we

19 recognize that we owe “substantial deference to the professional

20 judgment of prison administrators” such as Sheriff Bates. See

21 Overton v. Bazzetta, 539 U.S. 126, 132 (2003). A clothing

22 exchange is a common practice in jails and prisons as is the need

23 for corrections officers to be vigilant at all times. See, e.g.,

24 Marriott, 227 F.R.D. at 169–70; Williams, 2008 WL 4501918, at *2;

25 see also Barber v. Overton, 496 F.3d 449, 463 (6th Cir. 2007)

26 (Cook, J., concurring) (“Corrections officers must be ever

21

1 vigilant of constant, and often innovative, threats to their

2 safety . . . .” (citation omitted)). “Legitimate goals and

3 policies of the penal institution” support clothing exchanges at

4 jail intakes as well as the watchful gaze of corrections officers

5 over inmates, whether they are clothed or not.5 Bell, 441 U.S.

6 at 546.

7 The dissent points out that inmates are afforded privacy

8 when they shower and change into prison attire during the

9 clothing exchange process. From this the dissent infers that

10 defendants have “rejected” the idea that the presence of officers

11 when inmates remove their street clothes furthers security,

12 order, and discipline in the jail. This inference is strained at

13 best; and in any event, it is not for us to decide when officers

14 should be permitted to observe inmates as they go about

15 activities of daily life in jail, or specify (under the

16 Constitution) times when inmates may not be watched. As the

17 dissent observes, the Schoharie County Jail is a “controlled

18 environment,” in which inmates have a limited expectation of

19 privacy and freedom of movement. While we have an obligation to

20 set a floor of constitutionality permissible conduct, we are ill-

21 equipped to define the contours of life in jail.

22 The District Court framed the issue thus: “[I]f a CO w[ere]

5

The dissent contends that our consideration of

penological interests is inconsistent with our holding that the

clothing exchange procedure did not constitute a Fourth Amendment

search. However, that a court must examine penological interests

if a constitutional right is implicated does not mean that a

court is precluded from considering them in other circumstances.

22

1 required to observe an inmate undress, would this procedure

2 constitute an unreasonable search under the Fourth Amendment to

3 the United States Constitution?” Kelsey, 2007 WL 603406, at *5.

4 Our answer to this question is that such a procedure is not per

5 se an unreasonable search violative of the Fourth Amendment. In

6 giving this answer, we do not depart from, or erode in anyway,

7 our “clearly established” precedent “that persons charged with a

8 misdemeanor and remanded to a local correctional facility . . .

9 have a right to be free of a strip search absent reasonable

10 suspicion that they are carrying contraband or weapons . . . .”

11 Shain v. Ellison, 273 F.3d 56, 66 (2d Cir. 2001); see also N.G.

12 v. Connecticut, 382 F.3d 225 (2d Cir. 2004) (stating that this

13 Court has ruled in several decisions that “strip searches may not

14 be performed upon adults confined after arrest for misdemeanors,

15 in the absence of reasonable suspicion concerning possession of

16 contraband” (citing Shain, 272 F.3d at 62–66; Wachtler v. County

17 of Herkimer, 35 F.3d 77, 81 (2d Cir. 1994); Walsh v. Franco, 849

18 F.2d 66, 68–69 (2d Cir. 1988); Weber, 804 F.2d at 802)). Our

19 precedents do not control the allegations in this case.

20 We hold here only that a process for the exchange of

21 personal clothing for prison clothing under the observation of a

22 corrections officer in the manner described by plaintiffs does

23 not implicate the type of privacy protected by the Fourth

24 Amendment nor does it fall within the prohibitions established by

25 our precedents relating to strip searches. Plaintiffs were not

26 required to display or manipulate their body parts in any way.

23

1 Moreover, Plaintiffs did not deny that methods were available to

2 them to protect viewing of their private parts in the event they

3 desired to make use of such methods.

4 V. Conclusion

5 Because the plaintiffs have been unable to identify any

6 constitutional violation on the parts of the individual

7 defendants, the Decision and Order of the District Court is

8 reversed, and the case is remanded with instructions to dismiss

9 the action as against the individual defendants. Because the

10 plaintiffs lack any underlying claim of a deprivation of a

11 constitutional right, the claim of municipal liability on the

12 part of defendant County of Schoharie is to be dismissed as well.

13 See Zahra v. Town of Southold, 48 F.3d 674, 685 (2d Cir. 1995).

24

1 I dissent because the majority has exercised jurisdiction where it has none and assumed

2 the wrong party’s version of the facts. It has also offered dicta that contradicts this Circuit’s

3 precedent and disregards the experienced judgment of jail administrators. Under a correct

4 analysis of this case, we would be presented with the following question: During the relevant

5 time period, did our clearly established precedent interpreting the Fourth Amendment permit

6 arrestees for misdemeanors to be forced to expose their private parts to corrections officers

7 (“COs”) and inmates without reasonable suspicion? The answer is “no.” Accordingly, the

8 judgment of the district court should be affirmed.

9 Because we are reviewing, on interlocutory appeal, a denial of summary judgment on the

10 ground of qualified immunity, our jurisdiction is limited in two key ways. First, we cannot assert

11 jurisdiction over a question of evidence sufficiency. Salim v. Proulx, 93 F.3d 86, 91 (2d Cir.

12 1996) (“What we may not do . . . is entertain an interlocutory appeal in which a defendant

13 contends that the district court committed an error of law in ruling that the plaintiff’s evidence

14 was sufficient to create a jury issue on the facts relevant to the defendant’s immunity defense.”).

15 Second, we may only assert jurisdiction over this interlocutory appeal if we use the “undisputed

16 facts or plaintiff’s version of the facts.” Coons v. Casabella, 284 F.3d 437, 440 (2d Cir. 2002)

17 (internal quotation marks omitted). The majority violates both principles: it dismisses the district

18 court’s finding regarding the sufficiency of plaintiffs’ evidence, and it adopts defendants’ version

19 of the facts.

20 The district court found that there existed “issue[s] of material fact as to whether [the

21 jail]’s policies and practices require COs to observe inmates as they remove their street clothes”

22 in what may have amounted to a “strip search process.” Kelsey v. County of Schoharie,

23 No. 04-cv-299, 2007 WL 603406, at *5 (N.D.N.Y. Feb. 21, 2007). Rejecting the district court’s

24 finding, the majority re-evaluates the record and concludes that “[p]laintiffs were not required to

25 display . . . their body parts in any way” and that “methods were available to the[ plaintiffs] to

26 protect viewing of their private parts in the event they desired to make use of such methods.”

25

1 Maj. Op. at 24. The majority never explains how it has the authority to re-weigh the sufficiency

2 of the evidence and conclude that there is no dispute regarding a material fact. Our precedent is

3 clear that “[i]n an interlocutory appeal of a qualified immunity claim, where the parties dispute

4 material facts, the issue of whether there is sufficient evidence to support plaintiff’s version of

5 the material facts is within the province of the district court.” Holeman v. City of New London,

6 425 F.3d 184, 192 (2d Cir. 2005); see also Martinez v. Simonetti, 202 F.3d 625, 632 (2d Cir.

7 2000) (“[I]mmediate appeal is not permitted if the district court’s denial of summary judgment

8 for qualified immunity rests on a finding that there were material facts in dispute . . . .” (internal

9 quotation marks omitted)).

10 The majority avoids acknowledging its usurpation of the district court’s jurisdiction by

11 purporting to conduct an analysis based on plaintiffs’ version of the facts. Maj. Op. at 19–21.

12 Yet plaintiffs Kelsey and Wright have alleged that, after being arrested, respectively, for violating

13 a child support order and driving while intoxicated, they were forced to strip naked and be

14 inspected by corrections officers. (See Compl. ¶¶ 32-36, 40-43; Dep. of John Kelsey 75:22–76:2

15 (“I was humiliated. . . . I had another officer strip me down and, you know, staring at me when I

16 was naked.”); Dep. of Timothy E. Wright 134:10–13 (“[I]t was, you know, just a rather

17 humiliating kind of—shameful kind of, just being naked in front of at least one other individual

18 and possibly in the view of others.”).) Contrary to these allegations, the majority implausibly

19 concludes that Kelsey and Wright volunteered to strip naked and expose their private parts to

20 corrections officers and others, despite several opportunities to guard their privacy. See Maj. Op.

21 at 24. In so concluding, the majority is adopting defendants’—not plaintiffs’—version of the

22 facts. (See Appellants’ Br. at 2 (“This case specifically concerns a procedure . . . that requires

23 inmates to change out of their street clothes and into a facility-issued uniform with partial privacy

24 but in the physical presence of a corrections officer.”).)

25 The majority justifies its approach by excerpting portions of plaintiffs’ deposition

26 testimony. For example, the majority emphasizes Kelsey’s responses to questions from

26

1 defendants’ counsel to the effect that, during his disrobing, no one prevented him from turning

2 around, hiding behind a half-wall in the booking area, or somehow covering himself with a towel

3 or mesh bag while removing all of his clothes. Maj. Op. at 9, 19. These statements, however,

4 cannot be understood in isolation. Kelsey, according to his own testimony, did not recall having

5 a towel at his disposal when he was removing his clothing. Nonetheless, the majority assumes

6 that a towel was “available” to Kelsey during his disrobing. Maj. Op. at 19.

7 The majority overlooks or discounts other key details in the deposition testimony of

8 Kelsey and Wright that undermine the majority’s conclusion that plaintiffs, by their own

9 admission, could have protected their privacy by turning their backs to the CO,1 wrapping

10 themselves in a towel or hiding behind a half-wall in the booking area. First, the majority

11 acknowledges but then disregards that one of the COs who may have observed Wright testified

12 that arrestees were “required to stand in front of him and face him during the entire clothing

13 exchange,” and that the exchange did not take place near the half-wall or provide the “option to

14 disrobe in private.” Maj. Op. at 10-11. Second, the majority simply ignores that Kelsey testified

15 that he was forced to disrobe in full view of a holding cell that contained an inmate, who was

16 standing and laughing at Kelsey. It is questionable whether Kelsey could have avoided the eyes

17 of the CO as well as those of the inmate. Third, the majority dismisses Kelsey’s testimony that,

18 because the jail uniform into which he was supposed to change was located on a bench outside of

19 his reach, he had to walk while naked to obtain the uniform.2 Under those circumstances, it is

20 unclear how Kelsey could have maintained his privacy behind a wall. Fourth, Wright testified

21 that he was forced to strip inside of, or immediately at the gate of, a holding cell, in front of

22 which stood a CO. During his deposition, one of the COs confirmed that he conducted clothing

1

Despite the majority’s assumption, it is not clear that an individual’s privacy interests

would be preserved if he were forced to expose his naked backside to a CO.

2

Kelsey testified that, in order to reach the bench, “I had to move. I don’t know exactly

how many steps.”

27

1 exchanges in the holding cell with the arrestee. In order to change behind the half-wall, Wright

2 would have been required to walk away from the holding cell and past the CO. Fifth, although

3 the majority notes that Kelsey and Wright testified that a CO stood in front of them while they

4 were changing, the majority does not fully consider the fact that, according to both parties, the

5 CO was holding the bag into which plaintiffs had to deposit their clothes as they removed them.

6 This would have made it nearly impossible for either arrestee to turn his back to the CO and

7 successfully deposit his clothes in the bag.

8 Finally, the majority assumes that the obligatory stripping occurred amidst free-spirited

9 dialogue between jail guards and arrestees, instead of (as defendants acknowledge) in a

10 “controlled environment,” which both Kelsey and Wright described as “[h]umiliating.” In the

11 one instance when Kelsey (who worked as a corrections officer at another jail) questioned the

12 CO regarding the disrobing procedure, Kelsey was informed that he had no other option.3

13 The majority compounds its errors involving jurisdiction and standard-of-review by

14 offering dicta that contradicts this Circuit’s precedent. Although concluding that “methods were

15 available to the[ plaintiffs] to protect any viewing of their private parts,” Maj. Op. at 24, the

16 majority nonetheless suggests that the disrobing procedure would be constitutional because

17 “briefly ‘seeing’ a man’s genitals during a clothing exchange does not amount to a strip search.”

18 Maj. Op. at 20. Then the majority seems to retreat from this statement when it writes, “[w]e hold

19 here only that a process for the exchange of personal clothing for prison clothing under the

20 observation of a corrections officer in the manner described by plaintiffs does not implicate the

21 type of privacy protected by the Fourth Amendment.” Maj. Op. at 24. In fact, as discussed, the

22 majority has accepted defendants’ version of the facts and concluded that plaintiffs in this case

23 were not required to expose themselves. Accordingly, any statement by the majority about the

24 constitutionality of forcing arrestees to strip naked is dicta.

3

Kelsey testified as follows: “I had asked him [the C.O.], ‘Do I have to [do] this here?’

‘Do I have to get changed here,’ and he said “Yes, you do.”

28

1 It is, however, puzzling dicta, given this Circuit’s precedent on strip searches. See, e.g.,

2 Shain v. Ellison, 273 F.3d 56, 66 (2d Cir. 2001) (“[P]ersons charged with a misdemeanor and

3 remanded to a local correctional facility . . . have a right to be free of a strip search absent

4 reasonable suspicion that they are carrying contraband or weapons . . . .”); Walsh v. Franco, 849

5 F.2d 66, 69 (2d Cir. 1988) (“[T]he unconstitutionality of a blanket policy calling for strip

6 searches of all misdemeanor arrestees was clearly established.”). Without explanation, the

7 majority dismisses this Circuit’s precedent on strip searches as not “control[ling] the allegations

8 in this case.” Maj. Op. at 24. From the majority’s opinion, however, one can infer two possible

9 reasons for the majority’s summary statement, neither of which is valid under Fourth

10 Amendment jurisprudence.

11 First, insofar as the majority suggests that “brief[]” exposure of one’s private parts does

12 not implicate the Fourth Amendment, Maj. Op. at 20, our precedent does not support the notion

13 that a search need be prolonged or thorough to be termed a “strip search.” See N.G. v.

14 Connecticut, 382 F.3d 225, 228 n.4 (2d Cir. 2004) (“‘Strip search’ is often used as an umbrella

15 term that applies to all inspections of naked individuals.”).

16 Second, the majority seems to suggest that the disrobing procedure at issue in this case

17 “does not implicate the type of privacy protected by the Fourth Amendment” (Maj. Op. at 24)

18 and is distinguishable from traditional strip searches of persons charged with misdemeanors

19 because of the motives of the officers conducting the procedure. See Maj. Op. at 21 (describing

20 (1) CO’s testimony that purpose of strip procedure was merely to exchange clothes, and

21 (2) observation of arrestee’s body as “incidental” to “clothing exchange”).4 But the privacy

22 interests protected by the Fourth Amendment do not become irrelevant merely because we use

4

To the extent that the majority is suggesting that the exact same procedure may or may

not amount to an invasion of privacy depending upon the CO’s subjective intent, this is improper

because “challenged searches are judged ‘without regard to the underlying intent or motivation of

the officers involved.’” Hudson v. New York City, 271 F.3d 62, 68 (2d Cir. 2001) (quoting Scott

v. United States, 436 U.S. 128, 138 (1978)).

29

1 the nomenclature of “clothing exchange” instead of “strip search.” See Marriott v. County of

2 Montgomery, 227 F.R.D. 159, 169 (N.D.N.Y. 2005) (“Using different terminology, such as

3 change-out, does not change the observation of a naked admittee to anything other than what it

4 is—a strip search.”). As the Supreme Court has explained with respect to the act of urination

5 (whose visual or aural monitoring “implicates privacy interests”), “[t]here are few activities in

6 our society more personal or private . . . . Most people describe it by euphemisms if they talk

7 about it at all. It is a function traditionally performed without public observation; indeed, its

8 performance in public is generally prohibited by law as well as by social custom.” Skinner v. Ry.

9 Labor Executives’ Ass’n, 489 U.S. 602, 617 (1989) (internal quotation marks omitted). This

10 rationale applies equally strongly to the exposure of one’s private parts. See Justice v. City of

11 Peachtree City, 961 F.2d 188, 191 (11th Cir. 1992) (“Deeply imbedded in our culture is the

12 belief that people have a reasonable expectation not to be unclothed involuntarily, to be observed

13 unclothed or to have their ‘private’ parts observed or touched by others.” (internal quotation

14 marks and alterations omitted)); cf. Forts v. Ward, 621 F.2d 1210, 1217 (2d Cir. 1980) (“The

15 privacy interest entitled to protection concerns the involuntary viewing of private parts of the

16 body by members of the opposite sex.”).

17 Moreover, in analyzing the purpose of the disrobing procedure, the majority again

18 commits the fallacy of adopting defendants’ version of disputed facts. Defendants have

19 represented to this Court that the purpose of the procedure is “incidental observation of the

20 inmate where the intent is not to search, but to perform an administrative action in a controlled

21 environment.” (Reply Br. for Appellants at 21.) They have also asserted that the procedure is

22 “not intended to be a personal search.” (Appellants’ Br. at 6.) The majority agrees. It writes of

23 the “incidental observation of the body of an arrestee.” Maj. Op. at 21. In contrast, plaintiffs

24 allege that the objective of the disrobing procedure is to search arrestees (see Appellees’ Br. at 2)

25 and, according to the district court, the record “strongly suggest[ed],” but did not establish, “that

26 the purpose behind the entire exchange/strip search process is to search inmates for contraband.”

30

1 Kelsey, 2007 WL 603406, at *6. If the majority accepted—as it must on this interlocutory

2 appeal—plaintiffs’ version of the facts, then it would be compelled to call this procedure what

3 plaintiffs allege it to be: a “strip search.”

4 Having erroneously concluded that the Fourth Amendment is not implicated, the majority

5 nonetheless proceeds to argue that the disputed procedure is constitutionally valid because it is

6 “related to ‘maintaining institutional security and preserving internal order and discipline.’” Maj.

7 Op. at 21 (quoting Bell v. Wolfish, 441 U.S. 520, 546 (1979)). But a court need only examine

8 penological objectives if a constitutional right is implicated. See Turner v. Safley, 482 U.S. 78,

9 89 (1987) (“[W]hen a prison regulation impinges on inmates’ constitutional rights, the regulation

10 is valid if it is reasonably related to legitimate penological interests.”). Accordingly, the

11 majority’s analysis belies its conclusion: the majority’s evaluation of penological objectives is

12 necessary only if—contrary to the majority’s conclusion—the disrobing procedure implicates the

13 type of privacy interests protected by the Fourth Amendment.5

14 Nonetheless, it is true that with respect to jails, “maintaining institutional security and

15 preserving internal order and discipline are essential goals that may require limitation or

16 retraction of the retained constitutional rights of both convicted prisoners and pretrial detainees.”

17 Bell, 441 U.S. at 546. But the majority, after implicitly conceding that the disrobing procedure

18 implicates the Fourth Amendment, invokes penological objectives that defendants have rejected

19 and fails to identify essential goals requiring the retraction of Fourth Amendment rights.

20 Although recognizing that it is “ill-equipped to define the contours of life in jail,” Maj. Op. at 23,

21 the majority nonetheless “substitute[s] [the Court’s] judgment on these difficult and sensitive

22 matters of institutional administration and security for that of the persons who are actually

23 charged with and trained in the running of such facilities.” Block v. Rutherford, 468 U.S. 576,

5

The majority responds that, regardless of whether a constitutional right is implicated,

nothing prevents it from considering penological interests “in other circumstances.” Maj. Op. at

22 n.5. But the majority fails to explain what “other circumstances” justify its analysis or how its

discussion is relevant to its holding.

31

1 588 (1984) (internal quotation marks and citations omitted). For example, the majority suggests

2 that the clothing procedure is justified in order to ensure: (1) “that each inmate has clothing that

3 is clean and free of infestation;” (2) “that inmates are clearly indentifiable and distinguishable

4 from visitors, staff and members of the public;” and (3) “that a positive state of mind be instilled

5 in each inmate.” Maj. Op. at 21-22. But no one is challenging a jail’s authority to require

6 detainees to wear uniforms, and none of these reasons justify requiring an arrestee to strip in

7 front of a CO. See Bell, 441 U.S. at 559 (“Courts must consider the scope of the particular

8 intrusion, the manner in which it is conducted, the justification for initiating it, and the place in

9 which it is conducted.”); Weber v. Dell, 804 F.2d 796, 804 (2d Cir. 1986) (“Deference, however,

10 is not a dispensation from the requirement under the Fourth Amendment that searches be

11 reasonable.”). Jail administrators have adopted means—other than clothing exchanges—of

12 detecting contraband. In particular, the jail policy (which does not reference clothing exchanges)

13 allows pat searches and searches with a hand-held metal detector upon intake, and it permits strip

14 searches and body cavity searches upon “reasonable suspicion to believe that the inmate should

15 be searched.”

16 The majority also suggests that forcing arrestees to strip naked is justified because COs

17 must “observe inmates at all times.” Maj. Op. at 21. But defendants never claim that COs must

18 be omnipercipient. Defendants deny the existence of any blanket jail policy of requiring

19 arrestees to expose themselves. (See Appellants’ Br. at 2 (“This case specifically concerns a

20 procedure . . . that requires inmates to change out of their street clothes and into a facility-issued

21 uniform with partial privacy but in the physical presence of a corrections officer.”).) According

22 to defendants, arrestees are permitted to change behind a half-wall and are informed by COs that

23 they may use a towel for privacy. They further acknowledge that COs do not watch the arrestees

24 showering or changing into their jail uniforms. Defendants do not, therefore, argue that COs

25 must exercise unflagging and perpetual vigilance over every pore of an arrestee’s body. Nor, in

26 contrast to the majority, do defendants suggest that some degree of privacy is necessarily

32

1 anathema to a jail’s internal order or that the forced exposure of private parts during a clothing

2 exchange is an integral part of jail security. Accordingly, where defendants, themselves, have

3 conceded that penological interests are satisfied in a manner that does not require the forced

4 exposure of private parts, we should not condone an alleged infringement upon constitutionally

5 protected privacy interests merely because we can imagine an alternative procedure that we

6 might consider to be more effective.

7 I agree with the majority that it is important for corrections officers to be vigilant and that

8 clothing exchanges can serve important objectives. Maj. Op. at 22. But like the First Circuit and

9 in the absence of reasonable suspicion:

10 [o]ur case law on misdemeanor arrestees effectively holds that, even if the

11 only way to be comprehensive in detecting contraband is to perform a strip

12 search, the government must bear the risk of missing some

13 items. . . . [B]alancing constitutional rights and institutional needs may require

14 that, in situations presenting only a remote risk of concealment, we accept less

15 than perfect law enforcement procedures.

16 Wood v. Hancock County Sheriff’s Dep’t, 354 F.3d 57, 65 n.13 (1st Cir. 2003); see N.G., 382

17 F.3d at 232 (“[I]n several decisions, we have ruled that strip searches may not be performed upon

18 adults confined after arrest for misdemeanors, in the absence of reasonable suspicion concerning

19 possession of contraband.”). If, under plaintiffs’ version of the facts, arrestees for misdemeanors

20 could have protected their private parts from exposure, I would have agreed with the majority

21 that Fourth Amendment interests would not be implicated and violated. But that is not the case

22 before us.

23 Because plaintiffs’ version of the facts indicates a constitutional violation of a clearly

24 established right under the Fourth Amendment against unreasonable searches, we should affirm

25 the district court’s denial of summary judgment.

33