Amicus Curiae Brief — Nassau County, New York v. Shain

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NO. 02-541

OCT 24 oop-

IN THE : ce

SUPREME COURT OF THE UNITED SLATES “*ERK

THE COUNTY OF NASSAU, a Municipal Corporation; JOSEPH

JABLONSKY,

Petitioners,

-against.-

RAY E. SHAIN,

Respondent.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Second Circuit

BRIEF OF AMICUS CURIAE CITY OF NEW YORK

IN SUPPORT OF PETITION FOR A WRIT OF

MICHAEL A. CARDOZO,

Corporation Counsel of the

City of New York,

Attorney for Amicus Curiae City

of New York,

100 Church Street,

New York, New York 10007.

(212) 788-1030 or 788-1067

LEONARD J. KOERNER,*

LARRY A. SONNENSHEIN,

JULIAN L. KALKSTEIN,

of Counsel.

*Counsel of Record

October 24, 2002

basis

TABLE OF CONTENTS

TABLE OF AUTHORITIES ............::ccsssessseseeeeseesensesnnenens 1]

PRELIMINARY STATEMENT ..........:.ccssesesseeseeeseeeeeeeesees 1

INTEREST OF THE AMICUS CURIAE .........:eceseeseesseees 2

SUMMARY OF THE ARGUMENT .........:.eceseeesseeseeeeeeeees 8

ARGUMENT

THIS COURT SHOULD GRANT THE

PETITION SO THAT IT MAY RESOLVE

THE ISSUE OF WHETHER A STRIP

SEARCH POLICY OF POST

ARRAIGNMENT MISDEMEANOR

ARRESTEES THAT EFFECTIVELY

DISCOVERS AND DETERS’ THE

INTRODUCTION OF CONTRABAND

INTO PRISONS, THEREBY ENSURING

THE SAFETY AND SECURITY OF THE

INSTITUTION STAFF AND OTHER

PRISONERS, .IS CONSTITUTIONALLY

REASONABLE. ...........cssccsscooccsoreccssecssesseseosesense 11

CONCLUSION ...csccsensssscssossessosscovsssosesscnneseonsvensssesessenesones 18

TABLE OF AUTHORITIES

Cases Page

Bell v. Wolfish,

OE Fe Fr: eenckcinieianslinpnebionniciiniins 3, 13

Block v. Rutherford,

SE ULB FC Meecshstisciaeainduasieiallinritaiamaiiaaen 5,13

Dobrowolskj v. Jefferson Co.,

BED F ae FR IE Ges BEE siscicsisiiesorcaisvssocsuicetnnnen 15

Fuller v. M.G. Jewelry,

DSO FAG 8457 COUN, TOFD cnccessvcnsssesvsessonssersonetosess 15

Hause v. Vaught,

993 F.2d 1079 (4th Cir. 1993),

cert. den., $10: U.S. 1049 (1994) .........cccccsocossesscrsesssees 15

Shain v. Ellison,

21D 0 ae RC Gly ED ccsteniemcncnionins passim

Turner v. Safley,

SRE Shas. Fe CED wicsectacinniislinndinamiiantiian 3, 9, 12, 16, 17

Walsh v. Franco,

SOF FB GG (26 C,. TDD wrrevcntcvssccecssiceassccnsesesens 11,14

Washington v. Harper,

PF Ghee Oe TOE inseam 9, 12, 17

Weber v. Dell,

GS FE FIG CAG CA. BD cncicssviccccesiscocsvsenossssnee 11,14

tan ee

NO. 02-

IN THE

SUPREME COURT OF THE UNITED STATES

THE COUNTY OF NASSAU, a Municipal Corporation; JOSEPH

JABLONSKY;

Petitioners,

-against.-

Ray E. Shain,

Respondent.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Second Circuit

BRIEF OF AMICUS CURIAE CITY OF NEW YORK

IN SUPPORT OF PETITION FOR A WRIT OF

BS,

PRELIMINARY STATEMENT

The City of New York (“the City”) submits this

brief in support of the petition for a writ of certiorari in this

matter.

INTEREST OF THE AMICUS CURIAE

(1)

Confronting the United States Court of Appeals for

the Second Circuit in Shain v. Ellison, 273 F.3d 56 (2d. Cir.

2001), was the constitutionality of Nassau County (New

York) Correctional Center’s policy (NCCC) of subjecting

all misdemeanor and minor offense post-arraignment

arrestees remanded to the NCCC to a visual body cavity

strip search absent reasonable suspicion that the remanded

individuals were concealing contraband. The Court of

Appeals for the Second Circuit held that the United States

Constitution, Amend. IV, precludes prison officials from

performing a strip/body visual cavity search of an arrestee

charged with misdemeanors or other minor offenses unless

they have a reasonable suspicion that the arrestee is

concealing weapons, drugs or other ne based on

the crime charged, the particular characteristics of the

arrestee, and/or the circumstances of the arrest. The Second

- Circuit rejected the argument that although the strip search

policy impinges on an inmate’s constitutional mght, the

propriety of the regulation should be upheld because it is

“reasonably related” to such legitimate penological

interests as the safety of the institution staff and other

prisoners. See, Turner v. Safley, 482 U.S. 78, 89-90 (1987).

To reach its determination, the Second Circuit held

that the “reasonably related” standard is controlling where

the relevant correctional institution is a “[a] state or federal

facility of confinement for convicted criminals, especially

felons, as opposed to a jail, a correction facility that houses

persons convicted of minor crimes and pre-trial detainees.

In the City’s view, this distinction ignores this Court’s

trenchant observation that that “[t]here is no basis for

concluding that pretrial detainees pose any lesser security

risk than convicted inmates” Bell v. Wolfish, 441 U.S. 520,

547 n 20 (1979). These detainees may have serious prior

records. Id.

The City has a significant interest in this Court

granting the petition for certiorari in this matter because the

eee

Shain decision effectively usurps the legitimate authority of

prison experts in New York City, as it did to those

authorities in Nassau County, to implement the security

precautions they consider necessary for the effective and

safe operations of its institutions. The_ Circuit Court’s

decision turns on an artificial distinction, jail versus prison,

that bears little relation to reality of running a penal system

in a city the size of New York. The myriad safety and

security issues of a penal system the size of New York

City’s is and would continue to be seriously compromised

by a decision that takes little account of its inherent

dangers.

(2)

The Department of Corrections for the City of New

York maintains ten facilities on Rikers Island, three of

which are responsible for the initial processing of inmates.

Administration of facility this size is a task of “monumental

proportions.” Cf,. Block v. Rutherford, 468 U.S. 576, 583 |

(1984). Many of the misdemeanor new admissions are

siaiiadiaaie and felony recidivists.

In 1998, there were 183,851 non-felony arrests in

the City of New York. In 1999, there were 191,999 non-

felony arrests. As a result, in calendar year 1999, the

average number of daily new admissions was 332. On April

28, 2000, there were 12,981 detainees in Rikers Island. The

number is comprised of inmates with pending criminal

charges, newly sentenced inmates who are awaiting transfer

to the NYS Department of Correctional Service, parole

violators and State contract inmates. Of this population,

2847 were in custody on non-felony matters. Of that group,

2241 had been in custody previously for a felony matter.

Each inmate’s housing assignment was based on a

classification assignment that includes age and a risk

assessment including criminal history and security risk

group affiliation such as gang members and the severity of

the current charge. In addition, there was special, subset

housing units within each of the main categories for gay,

mental observation, protective custody, enhanced restraints,

administrative and punitive segregation.

There is no separate housing based on the class of

criminal charge for which the inmate has been arrested.

This fact allows commingling and interactions between

inmates of all criminal backgrounds.

Over the past five years, the Department of

Corrections has developed an aggressive search operation.

In fiscal year 1996, the Department stepped up its search

operations and conducted 105,100 searches that recovered

8006 weapons while in fiscal year 1997, 158,875 searches

recovered 9329 weapons. In fiscal year 1998, 182,760

searches were conducted resulting in a recovery of 6812

weapons. In fiscal 1999, 252,404 searches recovered 5122

weapons. In other words, searching for weapons and other

contraband within the institutions of Riker’s Island is

essential to the maintenance of security and safety of both

institution staff and prisoners.

A modification of the Department’s strip search

policy exempting misdemeanor detainees will compromise

the Department’s efforts to maintain security in_ its

facilities. Not only will the Department be prevented from

conducting a visual body search, but it will not be

permitted from conducting a manual search of clothing that

is needed for security because detainees are permitted to

wear the same clothing as a member of the public would

wear. Part of a strip search procedure includes a manual

inspection of seams, hems and waistbands of new

admissions.

Strip searches are performed to prevent contraband

from entering and remaining in the correctional facility and

for the safety of the institutional personnel. The holding in

Shain is premised on the questionable notion that the

likelihood of a misdemeanor arrestee bringing into or

maintaining contraband in a penal institution can be

determined by the crime charged. This notion is further

undermined by the fact that the Shain holding would

encourage those who are desirous of smuggling weapons,

drugs and other contraband into a penal institution to

induce persons through reward or coercion to be arrested

for misdemeanors with such material secreted on their

person knowing that the arrestee would not be subject to a

visual cavity strip search.

As we discuss above, the jail/prison division ignores

the arrestee’s past criminal history, age and other

background information. Shain is premised on an

unsupported distinction between a jail and a prison, a

concept that has no bearing on running a complex penal

institutions in a metropolitan area such as New York City.

It marks an inappropriate usurpation of security measures

implemented by prison administration experts that requires

reversal.

SUMMARY OF THE ARGUMENT

In this matter, the Court of Appeals for the Second

Circuit determined that the United States Constitution,

Amend. IV, required prison officials to find “reasonable

. |

EEE

Suspicion” that an arrestee charged with a misdemeanor

carried a weapon or contraband before performing

strip/body visual cavity search.

However, this Court has held that “when a prison

regulation impinges on an inmate’s constitutional rights,

the regulation is valid if it is reasonably related to

legitimate penological interests.” Turner, supra, 482 U.S.

78, 89-90 (1987). In Washington v. Harper, 494 U.S. 210,

223-224 (1990), this Court explained that the Turner

standard of review was based upon the need to reconcile its

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.

“These two principles apply in all cases in which a prisoner

asserts that a prison regulation violates the Constitution.” Id

This Court should grant the petition in order to

resolve the conflict as to what standard should be applied to

determine the propriety of body cavity searches of post-

arraignment detainees. Not only is there an apparent

conflict as to what standard is to be applied between the

Second Circuit and this Court, but there is a conflict as to

what standard is to be applied among other Circuit Courts.

The issue at bar derives additional importance from

the fact that the Second Circuit’s approach represents a

substantial intrusion into the administration of such large

penal institutions as those found in New York City and

Nassau County. Significantly, in reaching its determination,

the Court of Appeals for the Second Circuit effectively

bypassed this Court’s admonition that courts should play a

very limited role in the administration of detention facilities

with regard to such issues as safety and security.

ARGUMENT

THIS COURT SHOULD GRANT THE

PETITION SO THAT IT MAY

RESOLVE THE ISSUE OF WHETHER

A STRIP SEARCH POLICY OF POST

ARRAIGNMENT MISDEMEANOR

ARRESTEES THAT EFFECTIVELY

DISCOVERS AND DETERS’ THE

INTRODUCTION OF CONTRABAND

INTO PRISONS, THEREBY

ENSURING THE SAFETY AND

SECURITY OF THE INSTITUTION

STAFF AND OTHER PRISONERS, .IS

CONSTITUTIONALLY REASONABLE.

(1)

The issue presented by the petition in this matter is

what is the proper test to be applied in determining whether

the United States Constitution, Amend. IV , precludes

prison officials from performing a strip/body visual cavity

search of an arrestee charged with misdemeanor.

The Court of Appeals for the Second Circuit, when

confronted with this issue, claimed that it was bound to

follow its holding in Walsh v. Franco, 849 F.2d 66 (2d Cir.

1988) and Weber v. Dell, 804 F.2d 796 (2d Cir. 1986).

Shain, supra, 273 F.3d at 56. Those cases stand for the

proposition that prison officials may not conduct strip

searches with visual cavity inspections of arrestees charged

with misdemeanor or minor offenses absent a “reasonable

suspicion” that the arrestee is concealing contraband. This

suspicion may be based on the crime charged, the particular

characteristics of the arrestee or the circumstances of the

arrest. Walsh, supra, 849 F.2d at 68-69.

However, a year after Weber, this Court held that

“when a prison regulation impinges on an inmate’s

constitutional rights, the regulation is valid if it is

reasonably related to legitimate penological interests.”

Turner v. Safley, 482 U.S. 78, 89-90 (1987). Enlarging on

this principle in Washington v. Harper, 494 U.S. 210, 223-

224 (1990), this Court stated that the Turner standard of

review was based upon the need to reconcile its

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 judgments concerning institutional

operations. “These two principles apply in all cases in

which a prisoner asserts that a prison regulation violates the

Constitution.” Id.

This Court should resolve the issue of whether the

Turner reasonably related standard should be applied to the

question of the legal propriety of the cavity search of a

post-arraignment detainee. The holding in Shain marks a

profound intrusion into the sulseabetaneniinin of such large

penal institutions as those found in New York City and

Nassau County. Significantly, in reaching its determination,

the Court of Appeals for the Second Circuit essentially

ignored this Court’s admonition that courts should play a

very limited role in the administration of detention

facilities. Block, supra, citing, Bell v. Wolfish, 441 U.S.

520, 539 (1979). The Circuit Court’s decision compels

prison administrators to focus on one set of variables, those

related to reasonable suspicion. The multi-factor approach

of Turner permits administrators to consider the necessity

of cavity searches in the context of k»w to maintain safety

and security in the context of the particular facility.

(2)

Walsh and Weber, unlike the case at bar, involved

aresstees confined in pre-arraignment detention. Those

searches were conducted prior to a judicial determination

that probable cause justified Walsh and Weber’s extended

incarceration. Those plaintiffs not only retained the

privilege and expectation of parole but both plaintiffs were,

in fact, released at the police processing stage of the action.

Walsh, supra, 849 F.2d at 67; Weber, supra, 804 F.2d at

799. In contrast, the search challenged in the case at bar,

was conducted after plaintiff was remanded to the custody

of the Nassau County Department of Correction by the

Distnct Court after arraignment.

In addition, the challenged search was conducted

only when plaintiff was admitted into the general jail

population. On this point, it is important to note that a

significant factor repeatedly considered by other Circuit

Courts in determining the constitutionality of strip searches

was whether the search was conducted on a detainee who

was simply awaiting bail or a pre-trial detainee who was

admitted or who was about to be admitted into the general

jail population. See e.g., Hause v. Vaught, 993 F.2d 1079,

1082 (4th Cir. 1993), cert. den., 510 U.S. 1049 (1994);

Fuller _v. M.G. Jewelry, 950 F.2d 1437, 1448 (9th Cir.

1990); Dobrowolskj v. Jefferson Co., 823 F.2d 955, 958

(6th Cir. 1987).

The Second Circuit “sidesteps” these difficulties by

holding that the “reasonably related” standard is controlling

where the relevant correction facility is a prison and the

“reasonable suspicion” standard is controlling where the

relevant correctional facility is a jail. Shain, supra, 273 F.2d

at 71 (Cabranes, dissenting). As to this distinction, the

majority in Shain points to no cases that differentiate

between jails and prisons in the manner they suggest.

Indeed, Judge Robert Katzman in his concurrence, while

feeling constrained by precedent to join in the majority,

acknowledged that that “this Circuit’s choice to distinguish

either between misdemeanors and and felonies or between

jails and prisons is not necessarily persuasive to me.”

.Shain, supra, 273 F.2d at 70.

Significantly, Judge Cabranes noted in his dissent in

Shain that “our sister Circuits routinely apply Turner's

‘reasonably related’ standard to cases involving jails” and

cites several cases to support his assertion. Id. On this

basis, Judge Cabranes concludes that the majority’s

decision creates a Circuit split “that calls out for resolution

by the Supreme Court.” Id. at 70.

(3)

This Court explained in Turner that

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 power concerns counsel a

policy of judicial restraint. where a state

penal system is involved, federal courts have

... additional reasons to accord deference to

the appropriate authorities. 482 U.S. at 84-

85.

Amplifying on this principle, ‘this Court in

Washington, supra, 494 U.S. at 223-224, explained that that

“reasonably related” standard was adopted “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 (citation omitted). . . We

made quite clear that the standard of review we adopted in

Turner applies to all circumstances in which the needs of

prison administration implicate constitutional rights.” This

Court clearly sought to give deference to prison

administrators so as to allow them to “adopt innovative

solutions to the intractable problems of prison

administration. . . ”. Turner, supra, 482 U.S. at 79. In

addition, as explained by this Court, a stricter standard

would “inevitably” make courts “the primary arbiters of

what constitutes the best solution to every administrative

problem, thereby “unnecessarily perpetrat{ing] the

involvement of the federal courts in affairs of prison

administration. (citation omitted).’”’. Id.

In sum, the holding of Shain marks a serious

conflict with the holdings of this Court and other Circuit

Courts in an area of significant penal institution

administration. To reach its holding, the Second Circuit has

resorted to unrealistic differentiating of jails and prisons in

an attempt to evade to import of the principles of Block and

Turer. This radical result endangers both corrections

officials and prisoners. This Court should accept this case

to resolve this significant and pressing problem.

CONCLUSION

THE PETITION FOR A WRIT OF

CERTIORARI SHOULD BE

GRANTED.

Respectfully submitted,