Shain v. Ellison

JOSÉ A. CABRANES, Circuit Judge,

dissenting in part:

I respectfully dissent from the majority’s decision to evaluate the constitutionality of the cavity search at issue here under the “reasonable suspicion” standard we developed in Weber v. Dell, 804 F.2d 796, 802 (2d Cir.1986), rather than under the “reasonably related to legitimate penological objectives” standard subsequently articulated by the Supreme Court in Turner v. Safley, 482 U.S. 78, 89-90 , 107 S.Ct. 2254 , 96 L.Ed.2d 64 (1987).

In reaching this decision, the majority subjects Nassau County to liability for having an assertedly unconstitutional cavity-search policy, and subjects an individual defendant to liability for implementing it. Moreover, the majority remands the cause for a determination as to whether the District Court should enjoin the Nassau County Correctional Center (“NCCC”) from continuing to conduct a cavity search of all people admitted to the facility.

The majority’s decision is based on an artificial, untenable distinction between “prisons” and “jails,” and creates a Circuit split where there was none — a Circuit split that calls out for resolution by the Supreme Court. In my view, the majority’s decision finds no warrant in the Supreme Court’s jurisprudence and, indeed, substantially and unnecessarily limits the reach of the leading Supreme Court cases in this area. In resolving the cavity-search issue as it does, the majority also requires, by what the majority holds are the dictates of the Constitution, that correctional facilities such as the NCCC be run in a manner that defies common sense.

Accordingly, I dissent from the holding that the applicable standard to evaluate the constitutionality of a cavity search in a jail is “reasonable suspicion” rather than “reasonably related to a legitimate peno-logical interest.” 1 I write briefly to explain why.

‡ ‡ $

As the majority notes, in Weber v. Dell, 804 F.2d 796 (2d Cir.1986), we developed a standard for assessing the constitutionality of cavity searches of arrestees: The Constitution, we held, “precludes prison officials from performing ... cavity searches of arrestees charged with misdemeanors or other minor offenses unless the officials *71 have a reasonable suspicion that the ar-restee is concealing weapons or other contraband based on the crime charged, the particular characteristics of the arrestee, and/or the circumstances of the arrest.” Id. at 802 (emphasis added). In Walsh v. Franco, 849 F.2d 66, 68-69 (2d Cir.1988), and Wachtler v. Herkimer County, 35 F.3d 77 , 81 (2d Cir.1994), we evaluated the constitutionality of cavity searches under Weber’s “reasonable suspicion” standard.

Nearly one year after our decision in Weber , the Supreme Court held that “when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89-90 , 107 S.Ct. 2254 , 96 L.Ed.2d 64 (1987); see also Washington v. Harper, 494 U.S. 210, 224 , 110 S.Ct. 1028 , 108 L.Ed.2d 178 (1990) (holding, inter alia, that “Turner applies to all circumstances in which the needs of prison administration implicate constitutional rights”); O’Lone v. Estate of Shabazz, 482 U.S. 342, 348 , 107 S.Ct. 2400 , 96 L.Ed.2d 282 (1987) (applying Turner and noting that “legitimate penological interests” include “deterrence of crime, rehabilitation of prisoners, and institutional security”). In Covino v. Patrissi, 967 F.2d 73 (2d Cir.1992), we evaluated a cavity search under Turner’s “reasonably related” standard, and held that an arrestee may, in some circumstances, be subjected to a cavity search “in the absence of a[n] ... individualized suspicion justifying the search,” id. at 77-78 — that is, even when there is no “reasonable suspicion” of the kind required by Weber .

The question here is this: Should we assess the constitutionality of the NCCC’s cavity search policy (“policy”) under Weber’s “reasonable suspicion” standard (a standard we set forth) or under Turner’s “reasonably related” standard (a standard the Supreme Court set forth)?

The answer to this question, thus posed, seems obvious enough — Turner, as a case decided by the Supreme Court, must prevail. But resolving the question is complicated by the fact that, regrettably, our cases decided after Turner pull in different directions: Walsh and Wachtler suggest that Weber’s “reasonable suspicion” standard is controlling here, and Covino suggests that Turner’s “reasonably related” standard is governing.

The majority sidesteps this difficulty by holding that the “reasonably related” standard is controlling where the relevant correctional facility is a “prison” (as was as-sertedly the case in Covino), and that we must apply the “reasonable suspicion” standard that we enunciated in Weber and its progeny where the relevant correctional facility is a “jail” (as was assertedly the case in Weber, Walsh, Wachtler, and, as the majority states, here). See MajoRity Opinion, ante, at 66.

At first glance, ordering our cases in this manner is appealing: As a general matter, it is the duty of panels reasonably to harmonize our precedents, see, e.g., Rocket Jewelry Box, Inc. v. Noble Gift Packaging, Inc., 157 F.3d 174, 176 (2d Cir.1998) (“[EJvery panel of this court is bound by the decisions of earlier panels .... ”), and the jail/prison distinction renders our caselaw internally coherent by shoe-horning all-but-contradictory lines of precedent into apparently distinct doctrinal categories.

However, the distinction between these categories is illusory, and I believe that organizing our caselaw along the jail/prison axis is error.

As an initial matter, the distinction drawn by the majority between jails and prisons is wholly unprecedented. The ma *72 jority points to no cases that differentiate between jails and prisons in the manner that it suggests, and our sister Circuits routinely apply Turner’s “reasonably related” standard to cases involving jails. 2

They do so with good reason: There is no basis in the Supreme Court’s jurisprudence for limiting Turner’s “reasonably related” standard to cases involving correctional institutions denominated “prisons.” It is true, of course, that the “reasonably related” standard nominally applies to “prison regulations.” See Turner, 482 U.S. at 89 , 107 S.Ct. 2254 (emphasis added). But the term “prison” is most frequently used generically to describe any government facility — including a “jail”— that function primarily as a place for the confinement of people involved in the criminal justice system. See BlaCK’s Law DICTIONARY 1194 (6th ed.1990) (“prison,” first definition: “A public building or other place for the confinement of persons, whether as a punishment imposed by the law or otherwise in the course of the administration of justice ”) (emphasis added). 3

There is no indication that the Turner Court intended to depart from this well-settled, non-technical meaning of the word “prison.”

First, Turner’s “reasonably related” standard, which, as noted, concerns “prison regulations,” was itself based on four cases that concerned “prisoners’ rights,” see Turner, 482 U.S. at 86 , 107 S.Ct. 2254 : *73 (1) Pell v. Procunier, 417 U.S. 817 , 94 S.Ct. 2800 , 41 L.Ed.2d 495 (1974), (2) Jones v. North Carolina Prisoners’ Union, 483 U.S. 119 , 97 S.Ct. 2532 , 53 L.Ed.2d 629 (1977), (3) Bell v. Wolfish, 441 U.S. 520 , 99 S.Ct. 1861 , 60 L.Ed.2d 447 (1979), and (4) Block v. Rutherford, 468 U.S. 576 , 104 S.Ct. 3227 , 82 L.Ed.2d 438 (1984). See Turner, 482 U.S. at 86-89 , 107 S.Ct. 2254 (discussing these cases). Of these “prisoner’s rights” cases, one case — Procunier— concerned what the majority would call a “prison”; but another — Jones—involved both a prison and a jail, see Jones, 433 U.S. at 122 , 97 S.Ct. 2532 , and two of them — Block and Bell — exclusively concerned jails, see Block, 468 U.S. at 578-79 , 104 S.Ct. 3227 , Bell, 441 U.S. at 524 , 99 S.Ct. 1861 . This suggests that there is no distinction of constitutional magnitude between jails and prisons. If there were such a distinction, the Turner Court would not have elided the difference between “jail” cases and “prison” case by characterizing certain “jail” cases (Block, Bell, and perhaps Jones) as “prisoners’ rights” case. See Turner, 482 U.S. at 86 , 107 S.Ct. 2254 . And similarly, the Turner Court would not have — indeed, could not have — derived from “jails” cases {Block, Bell, and perhaps Jones) a standard that does not apply to them, but that applies only to what the majority would term a “prison” case.

Second, it is clear from Turner’s rationale that the “reasonably related” standard was not intended to apply only to those institutions encompassed in the majority’s narrow definition of “prison.” The Turner Court adopted the relatively deferential “reasonably related” standard as a means of accommodating two distinct imperatives — first, protecting individual rights; and second, recognizing that “the problems of prisons in America are complex and intractable, and ... are not readily susceptible of resolution by [judicial] decree.” Id. at 85 , 107 S.Ct. 2254 . As the Turner Court explained:

Running a prison is an inordinately difficult undertaking that requires expertise, planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government. Prison administration is, moreover, a task that has been committed to the responsibility of those branches, and separation of powers concerns counsel a policy of judicial restraint. Where a state penal system is involved, federal courts have ... additional reason to accord deference to the appropriate prison authorities.

Id. at 84-85 , 107 S.Ct. 2254 . In other words, a basic purpose of the “reasonably related” standard is to prevent the federal courts from becoming overly involved in the administration of corrections-related facilities that have chronic problems that the judiciary is, comparatively speaking, poorly-positioned to solve. 4

*74 But facilities that fit this description are as likely to be denominated “jails” as “prisons.” The NCCC is an apt example. It operates 365 days a year and 24 hours a day. When Mr. Shain was subjected to a cavity search there, the NCCC employed 950 corrections officers and housed, on an average day, 1,800 inmates. Every year, more than 14,000 people are introduced into the NCCC population. Of those who are housed at the NCCC, some have been sentenced to terms of one year or less; some have been sentenced to longer terms of imprisonment and are awaiting transfer to state-run correctional facilities in upstate New York; and others have been charged with a range of crimes, including violent felonies.

In short, the NCCC is a large, complex facility. Running it undoubtedly “requires expertise, planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government,” and it is therefore reasonable to assume that its problems, whatever they might be, are not “readily susceptible of resolution by [judicial] decree.” Turner, 482 U.S. at 84-85 , 107 S.Ct. 2254 .

Accordingly, the rationale for the “reasonably related” standard applies as forcefully to the NCCC as it would to a facility formally called a prison, and we must therefore assume that when the Turner Court developed the “reasonably related” standard, it intended for it to apply to facilities like the NCCC. But by introducing an artificial distinction between prisons and jails, the majority substantially limits Turner’s reach — and removes institutions like the NCCC from the ambit of the “reasonably related” standard. 5

The majority justifies its formalistic cab-ining of Turner — and its concomitant holding that it is Weber’s “reasonable suspicion” standard that applies in jails — by reference to the “substantial difference between jail and prison populations.” Majority OPINION, ante, at 65-66. However, factors such as the composition of a facility’s population — or, indeed, the composition of the portion of a facility’s population subjected to a particular regulation — are fully amenable to analysis under the Turner standard. See, e.g., Covino, 967 F.2d at 79 (stating that “the nature of [the facility’s] inmate population” supported the finding that there was “a legitimate and rational connection between the challenged searches ... and [the facility’s] security *75 interests”); Michenfelder v. Sumner, 860 F.2d 328, 332-33 (9th Cir.1988) (noting, while upholding visual body-cavity searches of inmates housed in a facility’s maximum security unit each time a prisoner entered or left his cell, that “[t]he searches are conducted on convicted prisoners in [the facility’s] most restrictive unit” and “[ejlevated security precautions are justified for prisoners placed in maximum security settings ... ”). Indeed, because Turner requires that the interest identified by the government be “legitimate” and that there be a nexus between the restriction of a prisoner’s constitutional rights and the interest, see 482 U.S. at 89-90, 107 S.Ct. 2254 , facility regulations justified by penological goals applicable only to persons convicted of crimes — such as punishment — could not be imposed on pretrial detainees. In this case, however, the NCCC’s asserted interest is facility security, which is a legitimate concern regardless of the status of the facility’s population. See Mauro v. Arpaio, 188 F.3d 1054 , 1059 & n. 1 (9th Cir.1999)(en banc). 6

Another difficulty with the majority’s holding is that it interprets the Constitution as requiring large, complex facilities such as the NCCC to be run less intelligently — and less safely — than ought to be the case. In deciding whether and under what circumstances to permit cavity searches, responsible correctional officials would presumably balance the rights of prisoners (which are impinged on by cavity searches) and the safety of staff and other prisoners (which is enhanced — at least somewhat — by cavity searches). In determining how this balance should be struck in the context of any particular facility, common sense dictates that a number of factors are relevant, including whether the facility is overcrowded; whether it is equipped with drug-sniffing dogs and metal detectors; whether it has been infiltrated by gangs; and whether prisoners have attempted previously to secrete contraband in a mannér detectable only by cavity searches. Because the “reasonably related” standard envisions a flexible, multi-factor inquiry, see Turner, 482 U.S. at 89-91 , 107 S.Ct. 2254 , it would permit administrators to craft cavity search policies with an eye to each of these concerns.

By contrast, the “reasonable suspicion” standard requires prison administrators to focus on only one set of variables — those related to reasonable suspicion itself. Ac *76 cordingly, the majority’s application of the “reasonable suspicion” standard to jails means that administrators who manage facilities such as the NCCC will not be allowed to take into account any of the factors noted above. That makes no sense and, as I have argued, is not required by the Constitution.

* * 'Jfi

The majority holds that we must assess the constitutionality of the cavity search at issue here under Weber’s “reasonable suspicion” standard, not Turner’s “reasonably related” standard. For the reasons stated above, I dissent.

. I agree with the majority as to its disposition of plaintiff-appellee-cross-appellant Ray E. Shain's false arrest, malicious prosecution, abuse of process, and excessive force claims, as well as with its disposition of his challenge to the constitutionality of the Family Court Act § 155(2). As to these issues, I concur in the reasoning and result of the majority opinion.

. See, e.g., Mauro v. Arpaio, 188 F.3d 1054, 1058-63 (9th Cir.1999); Friend v. Kolodzieczak, 923 F.2d 126, 127-28 (9th Cir.1991); Siddiqi v. Leak, 880 F.2d 904, 908-10 (7th Cir.1989); see also, e.g., Rogers v. Arbisi, No. 93 C 20237, 1996 WL 89346 , at *5 (N.D.Ill. Feb.28, 1996); Muhammad v. City of N.Y. Dept. of Corrections, 904 F.Supp. 161, 197 (S.D.N.Y.1995); Shaheed v. Winston, 885 F.Supp. 861, 867-68 (E.D.Va.1995), aff'd on other grounds 161 F.3d 3 (4th Cir.1998) (table); Pippins v. Adams County Jail, 851 F.Supp. 1228 , 1234 (C.D.Ill.1994).

. To be sure, "prison” is sometimes used in a manner that suggests a contrast with a "jail.” See Black’s Law Dictionary 1194 (6th ed.1990) ("prison,” third definition: "institutions ... distinguished from ... jails”). But that is relatively rare. It is more common to treat "jail” and "prison” — both of which are nontechnical terms to everyone other than students of penology — as virtual synonyms. See id. (defining "prison” in a manner that encompasses "jail”); id. at 834 ("jail,” first non-"obsolete” definition: "prison”). Consider, for example, Weber . In the majority's typology, Weber concerns jails, not prisons. But we held there that “prison officials” may not take certain actions. Weber, 804 F.2d at 802 (emphasis added); see also id. at 804 (describing the need "to defer to the judgment of prison officials”) (emphasis added). Any possible distinction between prisons and local jails apparently did not make an impression on the Weber panel, and, as the definitions quoted above suggest, the Weber panel’s conflation of jail and prison is not merely a matter of linguistic ‘imprecisión. Rather, "jail” and "prison” are all-but interchangeable.

This said, to the extent that there is a sharp, commonly agreed-upon distinction between the terms, it is that prisons hold people convicted of crimes, and jails hold people merely charged with crimes. See Black's Law Dictionary at 834 (defining "jail”). But here, prisons and jails cannot be differentiated on this basis. The majority distinguishes Covino , in which we applied Turner's "reasonably related” standard, as a case that involved a prison, not a jail. See Majority Opinion, ante, at 66. But the plaintiff in that case had not been convicted of a crime when he was searched— he had merely been charged with a crime. See Covino, 967 F.2d at 78 n. 4. Accordingly, if "prison” means a correctional facility that houses those convicted of crimes, as the majority suggests, Covino would have been a "jail” case, not a "prison” case, and we would have applied Weber’s “reasonable suspicion” standard. But we did not do so; instead, we applied Turner’s "reasonably related” standard. See Covino, 967 F.2d at 77-78 ; accord United States v. El-Hage, 213 F.3d 74, 81-82 (2d Cir.2000) (applying the Turner standard in a "jail” setting — that is, to assess & pre-trial detainee's constitutional claim).

. See Washington, 494 U.S. at 223-24 , 110 S.Ct. 1028 (stating that adoption of the “reasonably related” standard in Turner "was based upon the need to reconcile our longstanding adherence to the principle that inmates retain at least some constitutional rights despite incarceration with the recognition that prison authorities are best equipped to make difficult decisions regarding prison administration”); cf. Turner, 482 U.S. at 89 , 107 S.Ct. 2254 ("Subjecting the day-to-day judgments of prison officials to an inflexible strict scrutiny analysis would seriously hamper their ability to anticipate security problems and to adopt innovative solutions to the intractable problems of prison administration. The rule would also distort the decisionmak-ing process, for every administrative judgment would be subject to the possibility that some court somewhere would conclude that it had a less restrictive way of solving the problem at hand. Courts inevitably would become the primary arbiters of what constitutes the best solution to every administrative problem, thereby unnecessarily perpetuating] the *74 involvement of the federal courts in affairs of prison administration.”) (internal citations and quotation marks omitted).

. As noted, by distinguishing our cases along a jail/prison axis, the majority hopes to reconcile our precedents with one another. See ante at 66. In this case, however, we need not attempt to do so. As a matter of logic, our application of Weber’s "reasonable suspicion” standard in Walsh and Wachtler necessarily rested on a sub silentio holding that our decision in Weber survived the Supreme Court’s subsequent decision in Turner . (I characterize this holding as sub silentio because neither Walsh nor Wachtler mention Turner , and there is no indication that the parties brought Turner to the attention of the Walsh or Wacht-ler panels.) But sub silentio holdings do not bind subsequent panels. See, e.g., Goldberger v. Integrated Res., Inc., 209 F.3d 43, 49 (2d Cir.2000); Getty Petroleum Corp. v. Bartco Petroleum Corp., 858 F.2d 103, 113 (2d Cir.1988). See generally Webster v. Fall, 266 U.S. 507, 511 , 45 S.Ct. 148 , 69 L.Ed. 411 (1925) ("Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents.”). Moreover, when a panel bases a decision entirely on Circuit precedent that has been implicitly overruled by the Supreme Court — as I believe Weber was by Turner— panels of our Court need not hew to the panel decision. See, e.g., Zervos v. Verizon, 252 F.3d 163 , 167 (2d Cir.2001) (collecting cases).

. In expressing “doubt” in dicta over whether the use in Turner of the phrase “penological interests” limits its applicability to “persons convicted of crimes,” the panel in Benjamin v. Fraser, 264 F.3d 175 (2d Cir.2001), cited Judge Kleinfeld’s dissent from the en banc decision in Mauro. 264 F.3d at 187 . Judge Kleinfeld, in turn, relied on a narrow definition of "penological” as "relating to the 'theory and practice of prison management and criminal rehabilitation' ” and meaning, "roughly,” "penalty or punishment.” 188 F.3d at 1068 . Judge Kleinfeld found support for his belief that the Supreme Court used "penological” in this narrow sense in its recognition in Turner that rehabilitation is a legitimate penological interest. Id. at 1068 & n. 8 (citing Turner, 482 U.S. at 97-99 , 107 S.Ct. 2254 ). Judge Kleinfeld's analysis, however, fails to account for the reliance in Turner of facility security as the "penological interest” justifying a prohibition on inmate correspondence between institutions, see Turner, 482 U.S. at 91-92 , 107 S.Ct. 2254 , which reliance is inconsistent with his theory that "penological interests” are interests applicable only to prisoners convicted of crimes— after all, facilities housing prisoners may have legitimate security concerns regardless of whether those prisoners have yet been convicted of a crime. Indeed, the majority opinion in Mauro , in which the Ninth Circuit distinguished between penological interests that may be legitimately applied to pretrial detainees from those that may be legitimately applied only to those convicted of crimes, see 188 F.3d at 1059 & n. 1, demonstrates the appropriate use of the Turner multi-factor framework to a regulation affecting pretrial detainees. See 188 F.3d at 1058-63 .