# Norman R. Harrington v. R. Christopher Almy, Etc. > Court of Appeals for the First Circuit · January 21, 1993 · 977 F.2d 37 URL: https://www.frixlaw.com/law-library/cases/9483508 ## Case - **Full name:** Norman R. HARRINGTON, Plaintiff, Appellant, v. R. Christopher ALMY, Etc., Et Al., Defendants, Appellees - **Court:** Court of Appeals for the First Circuit - **Decided:** January 21, 1993 - **Citations:** 977 F.2d 37 - **Precedential status:** Published - **Opinion:** On rehearing - **Judges:** Breyer, Per Curiam, Torruella, Woodlock - **Cited by:** 94 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9483508 ## How later opinions describe it (automated extraction) - concluding plaintiff’s substantive due process claim survived summary judgment where he claimed that defendants violated his rights by conditioning his 15 reinstatement as a police officer on his submission to a psychological test in which he would have a gauge strapped to his… - holding that the requirement that a police officer charged with child abuse take a penile plethysmograph while viewing sexually explicit slides of adults and children in order to exonerate himself “shocked the conscience” of the -3- reasonable fact-finder - holding that reasonable factfinder could find that forcing a police officer who was charged with child abuse to undergo a physically intrusive test before returning to work shocked the conscience - holding that “nonroutine manipulative intrusions on bodily integrity will be subject to heightened scrutiny to determine, inter alia, whether there are less intrusive alternatives available” - holding that prosecutor's judgment concerning whether to pursue cases brought by a particular officer should be "free from damage actions or injunctive oversight in the federal court.” ## Opinion text On Petition For Rehearing MEMORANDUM AND ORDER January 21, 1993 PER CURIAM. In their petition for rehearing, the defendant Cole and the defendant City of Old Town assert that “this Court finessed the issue whether or not there was a ‘clearly established’ constitutional right which might have been violated ...” Petition at 10. Rather than such a sleight of hand, the defendants contend, “this Court should itself have determined as a matter of law whether or not the actions of Defendant Cole, on the facts of this case, were objectively reasonable thereby entitling Cole to summary judgment ...” Id. (emphasis in original) The problem with the defendants’ argument is that the summary judgment motion record in this unusual case did not permit the District Court or this Court to make such a determination as a matter of law. The fountainhead of substantive due process jurisprudence as applied to unwanted manipulations of an individual’s body, Rochin v. California, 342 U.S. 165 , 72 S.Ct. 205 , 96 L.Ed. 183 (1952), cautioned against making due process of law a matter of judicial caprice. The faculties of the Due Process Clause may be indefinite and vague, but the mode of their ascertainment is not self-willed. In each case “due process of law” requires an evaluation based on a disinterested inquiry pursued in the spirit of science, on a balanced order of facts exactly and fairly stated, on the detached consideration of conflicting claims, on a judgment not ad hoc and episodic but duly mindful of reconciling the needs both of continuity and of change in a progressive society. Id. at 172 , 72 S.Ct. at 209 . The Supreme Court has continued to rely in this area upon full record development as a predicate to judgment. That approach was illustrated in the fact-intensive analysis provided by the court in its most recent treatment of the “multifaceted legal inquiry that the court must undertake” in addressing the problem of nonconsensual manipulations of an individual’s body. Winston v. Lee, 470 U.S. 753 , 764 n. 8, 105 S.Ct. 1611 , 1618 n. 8, 84 L.Ed.2d 662 (1985). The task of the fact finder as to liability in this case upon remand will be two fold. First, it must be determined whether the use of a plethysmograph in this setting would have been a constitutionally impermissible intrusion upon the plaintiff’s bodily integrity. Second, if the answer to the first question is “Yes,” the fact finder must also answer the question whether a public official in defendant Cole’s position could reasonably have believed when he made submission to the plethysmograph a condition of reemployment that this would not be an impermissible intrusion on Harrington’s bodily integrity. It is only if both questions are answered affirmatively that' defendant Cole can be held liable. Those answers by the fact finder will ultimately, of course, be subject to judicial supervision on matters of law. However, the record assembled on the motion for summary judgment was insufficient to provide an adequate basis for answering these questions at this point “as a matter of law.” The jurisprudence of non-consensual bodily manipulations has developed cautiously and only after full understanding of the underlying facts and relevant context. In the absence of such development here judgment on the underlying questions would be premature. *47 Accordingly, the petition for rehearing of defendants/appellees is hereby Denied. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9483508. Public record. Not legal advice.