# Shain v. Ellison > Court of Appeals for the Second Circuit · October 19, 2001 · 273 F.3d 56 URL: https://www.frixlaw.com/law-library/cases/7007567 ## Case - **Full name:** Ray E. SHAIN, Plaintiff-Appellee-Cross-Appellant v. John ELLISON, (Shield No. 761), individually and as a Nassau County police officer John Doe, individually and as an Assistant District Attorney of Nassau County The County of Nassau, a Municipal Corporation Joseph Jablonsky, Defendants-Appellants-Cross-Appellees, James H. Madden, individually and as a Judge of Nassau County, Defendant-Cross-Appellee - **Court:** Court of Appeals for the Second Circuit - **Decided:** October 19, 2001 - **Citations:** 273 F.3d 56 - **Precedential status:** Published - **Opinion:** Concurrence by Katzmann - **Judges:** Cabranes, Katzmann, Pooler - **Cited by:** 103 later opinions in the Frix Law Library ## Citator (automated) - **Yellow flag:** Questioned by Gonzalez v. City of Schenectady, 728 F.3d 149 (2013). - Negative treatments: 1 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7007567 ## How later opinions describe it (automated extraction) - finding it "clearly established" that "corrections officers in a local correctional facility could not perform a strip search . . . on an individual arraigned on misdemeanor charges unless the officers had reasonable suspicion that the individual possessed contraband or weapons" - explaining that qualified immunity was properly denied because the right to be free of a strip search absent reasonable suspicion was clearly established at the time of incident - holding that the custodial strip search of plaintiff, who had been arrested for first degree harassment arising from a domestic dispute, was unconstitutional - holding that strip search of misdemeanants upon intake to correctional facilities without reasonable suspicion violates the Fourth Amendment - holding that “adjournment in contemplation of dismissal is not considered to be a favorable termination” for malicious prosecution purposes ## Opinion text KATZMANN, concurring: I join in Judge Pooler’s opinion in this challenging case. Unlike Judge Cabranes in his thoughtful dissent, I believe it reaches the result required by the precedent of this Circuit with respect to the standard to be applied to cavity searches in cases such as this one. In short, Turner v. Safley, 482 U.S. 78, 89-90 , 107 S.Ct. 2254 , 96 L.Ed.2d 64 (1987), and its progeny deal with prison regulations as they are applied to individuals charged with or convicted of felonies, while Weber v. Dell, 804 F.2d 796 (2d Cir.1986), Walsh v. Franco, 849 F.2d 66 (2d Cir.1988), and Wachtler v. County of Herkimer, 35 F.3d 77 (2d Cir.1994), concern the treatment of misdemeanor ar-restees being held in jails. Because there has been no explicit indication from the *70 Supreme Court that it would apply its “reasonably related to penological interests” standard (rather than a “reasonable suspicion” standard) to cases involving misdemeanor arrestees being held in jail, I believe we are compelled to follow Circuit precedent, which distinguishes between these two types of cases. As Wachtler was decided well after Turner , it appears to me that this Circuit’s approach to such cases is unchanged after Turner . I write separately to emphasize that while this Circuit’s choice to distinguish for these purposes either between misdemeanors and felonies or between jails and prisons is not necessarily persuasive to me — and in fact I am not sure either is a distinction I would make if I were considering the question in the first instance — I do think that these distinctions are required by our earlier precedents. Because these precedents have not, in my view, been squarely overruled, I believe we have no choice but to apply the “reasonable suspicion” standard to the facts of this case. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7007567. Public record. Not legal advice.