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

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No. 02-541 | O |

IN THE

Supreme Court of the United States

THE COUNTY OF NASSAU and JOSEPH JABLONSKY,

Petitioners,

-V -

RAY E. SHAIN,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF FOR THE COUNTY OF ORANGE, STATE OF

NEW YORK AS AMICUS CURIAE IN SUPPORT OF

THE PETITION FOR CERTIORARI

CATHERINE M. BARTLETT

County Attorney

County of Orange

255 Main Street

Goshen, NY 10924

(845) 291-3150

CATHERINE M. BARTLETT

RICHARD B. GOLDEN *

CHRISTINA M. SANABRIA

F Of Counsel on

* Counsel of Record

THE REPORTER COMPANY, Printers and Publishers. Inc.

181 Delaware Street, Walton, NY 13856—800-252-7181

(4418 — 2002)

Printed on Recycled Paper

Table of Contents

Page

Tablo of Authorities ......osec eee ven ceases reeevevesses ii

Constitutional Provision Involved ....---...essrrrrreeee 1

Interest of the County of Orange, State of New York

ie Ns ens LA ek ETERS ER AEPE EAE TD FER SER EN YES 1

[\ oS) ir rrrerre rte Cette hehe 12

I. The decision below conflicts with decisions of this

Court on important issues affecting Federal

Constitutional rights ........-:+eeeeee reer res 12

A. The decision below upholds the Second

Circuit's decision in Weber v. Dell, 804 F.2d

796, 55 USLW 2316 (2nd Cir. N.Y., 1986)

and fails to apply the prevailing standards

set forth in this Court's Decision in Turner

v. Safley, 482 U.S. 78, 107 S. Ct. 2254, 96

L.Ed.2d 64 (1987) ..... cece cece eee eeeeeeeee 12

B. The New York State Commission of Cor-

rection requires immediate screening and

visual assessment, with classifications

procedures mandated to be completed

within three business days .....----+++s++ee0> 16

a i i i 6 0 00 SARE RE NEE OER REA OSA ENERAS 18

Table of Authorities

Cases: Page

Allah v. Coughlin, 190 A.D.2d 233, 599 N.Y.S.2d 651 ..

(Sed Dugt, S000). «ss vensee eanase eevee see eets sexes 15

Bell v. Wolfish, 441 U.S. 520, 99 S. Ct. 1861, 60 L.Ed.2d

MEOW oo cecsnitseienee ee ee 12, 13

Bowman v. City of Middletown, 91 F.Supp.2d 644

S.LLNLY. SP csv been swavtaes seen oy es eee sd One ke 12

Clow v. Coughlin, 222 A.D.2d 781, 634 N.Y.S.2d 823

et Dage. WOGEP os sadanuecencoeoreeewsastaenbnd es 15

Covino v. Patrissi, 967 F.2d 73 (2nd Cir. 1992) ............ 15

Dobrowolskyj v. Jefferson County, Ky., 823 F.2d 955

(6th Cir. 1987), cert. denied, 484 U.S. 1059 (1988) ........ 17

Dodge v. County of Orange, et ano., 02 Civ. 769

(US.DL., RATS + 62000h0euneheneeawneseeeines 4,11

Jones v. North Carolina Prisoners’ Labor Un ion,

433 US. 119, 97 S. Ct. 2532, 53 L.Ed.2d 629 (1977) ...... 13

Justice v. City of Peachtree City, 961 F.2d 188

(Tie Cie, TOR? «oo 5 ctnaxnnscadab Cab eeneeeedaeeess 17

Kraushaar v. Flanigan, 45 F.3d 1040 (7th Cir. 1995) ........ 17

Mauro v. Arpaio, 188 F.3d 1054 (9th Cir. 1999)

(en banc) cert. denied, 529 U.S. 1018 (2000) ............. 17

Nicholas v. Miller, 189 F.3d 191 (2nd Cir., N.Y. 1999) ...... 14

Pell v. Procunier, 417 U.S. 817, 94S. Ct. 2800,

a 13

Shain v. Ellison, 273 F.3d 56 (2d Cir. N.Y., 2001) ...... 1, 6, 14

Siddiqi v. Leak, 880 F.2d 904 (7th Cir. 1989) .............. 17

Thompson v. City of Los Angelos, 885 F.2d 1439

IE eee ee ny yar ne ene 17

Turner v. Safley, 482 U.S. 78, 107 S. Ct. 2254,

BO 1), +4 12, 13, 14, 15, 17, 18

Weber v. Dell, 804 F.2d 796

a a 6, 12, 14, 15, 17

Statutes:

9 NYCRR:

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1

BRIEF FOR THE COUNTY OF ORANGE, STATE OF NEW

YORK AS AMICUS CURIAE IN SUPPORT OF THE PETI-

TION FOR CERTIORARI IN THE CASE OF SHAIN v.

ELLISON, 273 F.3d 56 (2d CIR. N.Y., 2001)

CONSTITUTIONAL PROVISION INVOLVED:

This case involves the following constitutional provision:

U.S. Const. Amendment IV:

The right of the people to be secure in their persons,

houses, papers and effects, against unreasonable

searches and seizures, shall not be violated, and no

Warrants shall issue, but upon probable cause,

supported by Oath or affirmation, and particularly

describing the place to be searched, and the persons

or things to be seized.

INTEREST OF THE COUNTY OF ORANGE, STATE OF

NEW YORK AS AMICI:

The County of Orange, State of New York is a municipality

with a population of approximately 341,000, located approxi-

mately sixty (60) miles north and west of New York City. In the

past, this County was primarily rural in character with farms

and small villages located within its borders, which run from

the western shore of the Hudson River, to the eastern shore of

the Delaware River. In recent years, as a result of its increasing

population, the County of Orange has begun to suffer “grow-

ing pains”, including an increase in violent crime, as well as an

increase in gang related criminal activity.

As is the case in most counties in the State of New York, the

County, through the elected office of Sheriff operates a correc-

2

tional facility. The Orange County Correctional Facility

(hereinafter referred to as the “OCCF”) has a maximum inmate

capacity of 616 inmates, with an average daily census of

approximately 530 inmates. The OCCF houses all types of

inmates: pre and post arraignment; sentenced and

unsentenced; felons, misdemeanants and those individuals

charged with lesser offenses. Most of the towns and villages

within the County have no detention or holding facilities of

their own, and as such, all post-arraignment detainees are

remanded to the custody of the OCCF by local magistrates and

judges. Individuals arrested by the New York State Police

within the County of Orange are also held at the OCCF, both

pre and post arraignment.

In January of 2001, the OCCF staff undertook a complete

review of the OCCF’s strip search procedure for pre-trial

detainees (as opposed to sentenced inmates) with the assistance

of the Orange County Attorney’s office. “Pre-trial detainee”

pertains only to those prisoners who are held in custody at the

OCCF, pursuant to a securing order from a court committing

an individual to the custody of the Orange County Sheriff,

pending release on bail/bond or further appearance before a

Superior Court. The aforementioned review consisted of an

examination of the regulations of the New York State Commis-

sion of Correction, (the New York State agency charged with

the oversight of the OCCF), as well as reported decisions from

the United States District Court for the Southern District of

New York, the Second Circuit Court of Appeals and this Court.

The Orange County Attorney’s Office worked with OCCF

personnel in reviewing the procedures that existed; as well as

the development and adoption of new procedures that were

intended to be in compliance with the requirements of both the

state regulatory agency and the Federal Courts. This review of

the OCCF’s strip search procedures was occasioned by a

number of factors including a District Court lawsuit, which

3

brought to light issues regarding the strip search procedures

followed by OCCF personnel, as well as the impending move

of the OCCF’s operations to an entirely new facility.

Asa result of the aforementioned review, the Orange County

Sheriffs Office adopted a comprehensive Inmate Search Policy,

which was distributed to all Command Staff on August 1, 2001

and subsequently to substantially all OCCF staff during the

first week of August 2001. This Inmate Search Policy was

formally adopted by Sheriff H. Frank Bigger on August 20,

2001, but had been in practice since early August of 2001.

This Inmate Search Policy Section 5.3.1stated in pertinent

part that a strip search may be conducted under the following

circumstances:

a. Committed sentenced inmate /weekenders;

b. Committed probation/ parole violator;

. Weapons or narcotics offenses;

. Known gang affiliation;

. Prior or current escape charges;

Committed for a felony;

. Prior or current contraband charges;

. Known history of contraband charges;

Metal detector/B.O.S.S. (Body Orifice Scanning System)

chair activation;

j. Inmate that appears under the influence of

drugs/alcohol;

k. Currently suicidal inmate;

1. Prior suicidal history in past 10 years;.....

r. Reasonable suspicion....

= soa me an

The Inmate Search Policy then stated how such a search was to

be conducted, i.e., by an officer of the same sex; in private;

without physical touching of the inmate, etc.

4

Prior to the implementation of the aforementioned Inmate

Search policy, the OCCF would conduct personal hygiene

examinations of inmates’ persons upon their admission to the

OCCF. These personal hygiene examinations consisted of

visual inspections of the inmates’ bodies during the time they

were changing from their street clothes into their OCCF-issued

jumpsuits. If the corrections’ officer conducting the examina-

tion had a reasonable suspicion that the inmate was secreting

drugs, weapons or other contraband on his/her person, a strip

search would be initiated. Again, the strip searches conducted

involved no touching of the inmate by corrections personnel,

were done in private, were brief and performed by officers of

the same sex as the involved inmates.

In November of 2001, the New York State Commission of

Correction conducted its annual evaluation of the OCCF. In

January of 2002, the OCCF received the report from the State

Commission of Correction regarding its November 2001

evaluation. Significantly, the OCCF’s Admissions’ policies and

procedures were reviewed and found to be in full compliance

with State standards. The only criticism of the OCCF’s search

policy by the Commission of Correction was that the Jail staff

cease completing strip search forms with respect to visitation

searches. Significantly, at no time in any of the previous State

Commission of Correction’s annual evaluations performed

during the years 1999-2000, was the OCCF ever cited for its

then existing policy of inmate body searches/ personal hygiene

examinations.

At the present time, pending before the United States District

Court in the Southern District of New York is a class action

lawsuit entitled, Dodge v. County of Orange, et. ano., 02 Civ. 769

(U.S.D.C., S.D.N.Y.), wherein Plaintiffs allege that the County

of Orange and its Sheriff, H. Frank Bigger created, imple-

mented and maintained a blanket illegal policy of strip

ee

5

searching all pre-trial detainees admitted to the OCCF from

January 31, 1999 through July 26, 2002.

Plaintiffs commenced this action in and about February of

2002 against the County of Orange and the Sheriff of Orange

County (hereinafter referred to as the County Defendants).

Prior to the joinder of issue therein, Plaintiffs moved for class

certification and for a preliminary injunction. In a decision,

dated May 31, 2002, the District Court ordered that a hearing be

held on the issue of whether injunctive relief was warranted.

This hearing took place on June 24, 2002. The County

Defendants contended at the time of the hearing before the

District Court that their August, 2001 Inmate Search policy

comported with the prevailing Federal and State case law

precedents, as well as all state and Federal mandates regarding

searches conducted of pre-trial detainees upon their admission

to a correctional facility. All personnel with the authority to

conduct pre-trial detainee strip searches did so pursuant to the

aforementioned Inmate Search policy and with the limitations

prescribed by both State regulatory agencies and Federal court

decisions.

The District Court, in a decision dated July 24, 2002 enjoined

the County Defendants from utilizing the Inmate Search Policy,

first implemented in August of 2001. Essentially the District

Court Judge ruled that the OCCF was enjoined from strip

searching a pre-trial detainee held for a misdemeanor or lesser

offense based solely on the existence of one of the factors listed

in the subject Inmate Search Policy. For example, the District

Court held that corrections officers could not strip search a

detainee solely as a result of a positive metal detector reading;

or solely on the basis that the detainee appeared to be under

the influence of drugs or alcohol; or solely on the basis that the

detainee is held on a parole or probation violation. In fact, a

6

strict interpretation of the District Court’s decision would not

permit the strip search of any individual charged witha felony.

The County Defendants were essentially ordered to only strip

search a detairlee when a corrections officer had individualized

reasonable suspicion to conduct such a search. In the words of

the District Court, “[OCCF officers] may — indeed, they must

— evaluate the crime charged, the circumstances of the arrest,

and the detainee’s characteristics, including the factors listed in

Section 5.3.1.” The District Court Judge further noted that the

OCCF would not be “unduly burdened” by changing its strip

search policy to conform to her ruling.

The District Court judge specifically based her decision on

the case law precedents established by the United States Court

of Appeals for the Second Circuit in the cases of Weber v. Dell,

804 F.2d 796 (2nd Cir. N.Y.,1986) and Shain v. Ellison, 273 F.3d

56 (2nd Cir. N.Y., 2001).

Subsequent to the District Court’s ruling, an amended strip

search policy and post orders were issued to the Booking and

Receiving unit of the OCCF so to conform to the preliminary

injunction. Since that time, OCCF personnel have substantially

conformed to the District Court’s injunction.

On July 31, 2002, an article about the District Court's

issuance of the injunction appeared in the New York Law

Journal. Later that same week, another article about the

injunction appeared in the Times-Herald Record, a local

newspaper that provides news coverage of events that affect

both Orange and Sullivan Counties.

Since the issuance of the District Court's injunction and the

appearance of articles in various newspapers regarding same,

there has been a significant increase in the amount of contra-

band seized post admission at the OCCF, as established by the

7

number of State Reportable Incidents (S.R.I.’s) of contraband.

The State Commission of Correction requires reporting of any

incidents of contraband seizures when the contraband discov-

ered originates from outside the confines of the particular

correctional facility. In addition to S.R.I.’s, the OCCF staff also

report any incidents of contraband discovered within the

Facility, whether the contraband was introduced from the

outside or whether the contraband was from within the Jail

itself, i.e. batteries, medications, and excess issue items such as

toilet paper, pens, clothing, etc.

A review of relevant OCCF records reveal the following: for

the year 1999, there were five S.R.I.’s of contraband at the

OCCF; for the year 2000, there were five S.R.I.’s of contraband,

with one S.R.I. encompassing multiple drug seizures that were

the result of an undercover operation at the Facility; and in the

year 2001, there was one S.R.I. of contraband. For the months

of January through July of 2002, there were four S.R.I.’s of

contraband.

As previously indicated, the District Court’s injunction was

issued on or about July 24, 2002, with the aforementioned

newspaper articles appearing within a week of the Court's

order. For the month of August of 2002, there were six S.R.I.’s

of contraband, a more than 100% increase over the previous

seven months. A review of these August S.R.I.’s reveals

additional information as to the detrimental effects of the

District Court’s injunction. Of the six S.R.I.’s of contraband,

three of the involved inmates had been admitted to the Jail on

misdemeanor charges, with two of the inmates having been

admitted into the Jail after the issuance of the Court’s injunc-

tion and not initially strip searched on their admission. Five of

the six August 2002 incidents involved the discovery of drugs,

with the remaining S.R.I. involving the discovery of a razor

blade in an inmate’s shoe. Two of the six August 2002 S.R.I.’s

8

involved the discovery of drugs in the Alpha Housing Unit, the

area where all new inmates are placed for at least three

business days, until the inmate classification process is com-

pleted.

In September of 2002, S.R.I.’s of contraband at the Jail again

increased. For the month of September of 2002, there were five

S.R.I.’s of contraband. Of these five S.R.I.’s, two of the involved

inmates had been admitted to the Jail post injunction on

misdemeanor charges and not strip searched on their admis-

sion to the Facility.

In addition to the aforementioned S.R.I.’s, OCCF personnel

reported more contraband seizures during the months of

August and September of 2002. For the months of January

through July of 2002, Jail personnel reported sixteen incidents

of contraband seizures at the Jail. For the month of August of

2002, OCCF personnel reported forty-two incidents of contra-

band seizures. For the month of September 2002, OCCF

personnel reported twenty-nine incidents of contraband

seizures.

As is clear from the foregoing, contraband introduced into

the OCCF has increased significantly since the issuance of the

District Court's injunction. State Reportable contraband seized

during the months of August and September of 2002 consisted

primarily of drugs and weapons. The safety and well being of

both inmates and corrections officers have been compromised

as a result of the District Court’s injunction.

The County of Orange’s interest in the outcome of this case

is direct and immediate. At present, the County is operating its

correctional facility under a District Court injunction which

insists that Facility personnel consider factors, which are

basically unavailable to them before conducting strip searches

9

of newly admitted inmates. The District Court’s injunction

mandates OCCF personnel to evaluate the crime charged, the

circumstances of the arrest, and the detainee’s characteristics

before deciding whether there is reasonable suspicion to

conduct an admissions strip search.

The standards mandated by the District Court are simply

impractical in the environment of a corrections facility. The

OCCF accepts inmates upon presentation of a valid securing

order from a local magistrate or judge. In most of the admis-

sions of inmates to the OCCF, the transporting officers are

members of the Orange County’s Sheriff's Office, and not from

the arresting agency, with the exception of inmates admitted

through arrests made by the City of Newburgh Police Depart-

ment and the New York State Police. In those limited situations

where inmates are brought into the OCCF by the arresting

agencies, the transporting officers are usually not the same

officers involved in the original arrest. Newly admitted inmates

to the OCCF often have no more paperwork accompanying

them than the actual securing order, which merely states the

charges against them; at times, with nothing more listed than

the relevant Penal Law section numbers.

OCCF booking officers have no information available to

them regarding the detainee’s actual arrest on that individual's

admission to the Jail, other than the charges listed on the

securing Order. They have no contact with the arresting

officers, nor do they have any paperwork from the arresting

agency. As such, one of the factors to be considered in deter-

mining reasonable suspicion, which has been mandated by the

District Court, is simply never available to the booking officers.

This “information gap” regarding the detainee’s actual arrest

is further compounded by the time lag OCCF personnel

10

encounter in classifying an inmate, in accordance with the

guidelines as set forth by the State Commission of Correction.

The State Commission of Correction requires that an inmate be

classified within three business days. Routinely, OCCF

personnel do not receive a positive identification of an inmate

until days after he/she is first admitted to the facility. Until

completion of the classification process, newly admitted

inmates are housed together and have full contact with each

other. The newly admitted inmates include parole violators,

felony detainees, misdemeanor detainees, newly sentenced

inmates and violation detainees. These detainees have full

contact with both uniformed and civilian staff throughout the

admissions procedures. Upon initial admission to the Facility,

OCCF personnel have insufficient information upon which to

determine who should be separated from whom.

The information received by Booking officers on an inmate’s

initial admission is strictly self-reported information and that

limited information, which is reflected on the securing order.

On admission, OCCF personnel are simply unaware of a

particular inmate’s criminal history or institutional behavior.

As is clear from the foregoing, the admissions procedures

ordered by the District Court have resulted in a significant

increase in contraband seizures at the Jail. This court ordered

limitation of the Jail’s prior Inmate Search policy has been

noticed by the inmate population, as well as those recidivist

offenders who are regularly admitted to the Jail. Often,

detainees charged with a misdemeanor offense have had

previous felony charges lodged against them. Statistics of new

inmate admissions during the month of August 2002 reveal the

following: of the 532 new inmate admissions during that

month, 265 detainees were charged with misdemeanor or lesser

offenses. Of those 265 detainees, 137 had prior felony arrests.

In September of 2002, there were 501 new admissions to the

11

Jail. Of those admissions, 253 were for misdemeanor or lesser

offenses. Of those 253 detainees, 146 had been previously

arrested on felony charges.

Studies of correctional facilities have established that it is

common for detainees to coerce or cajole individuals to

smuggle contraband into the facilities. Obviously if body

search procedures are relaxed for detainees charged with

misdemeanor or lesser offenses, other inmates have now been

provided witha new means of obtaining contraband in the Jail.

This theory is clearly borne out by the increase inS.R.1.’s for the

months of August and September of 2002 at the OCCF.

At the present time, the County of Orange is continuing to

defend the Dodge case, litigating in both the United States

District Court and the United States Court of Appeals for the

Second Circuit. Discovery in the District Court action is

completed and a Joint Pre-Trial Order has been filed. Plaintiffs

have moved for summary judgment and the County has until

November 21, 2002 to respond to that dispositive motion. The

County has filed a petition for leave to appeal the District

Court’s decision granting class certification, to the Second

Circuit. A decision on that petition is still pending. Addition-

ally, the County has filed an appeal with the Second Circuit as

of right, as to the District Court's injunction order of July 24,

2002.

12

ARGUMENT

i.

THE DECISION BELOW CONFLICTS WITH DECISIONS

OF THIS COURT ON IMPORTANT ISSUES AFFECTING

FEDERAL CONSTITUTIONAL RIGHTS

A. The Decision Below upholds the Second Circuit's decision

in Weber v. Dell, 804 F.2d 796, 55 USLW 2316 (2nd Cir.

N.Y.,1986) and fails to apply the prevailing standards set

forth in this Court’s Decision in Turner v. Safley, 482 U.S.

78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987)

The seminal case that establishes the constitutionality of

body searches of inmates is Bell v. Wolfish, 441 U.S. 520, 99 S.Ct.

1861, 60 L.Ed.2d 447 (1979). In Bell, this Court held that, if a

particular condition or restriction imposed on a pre-trial

detainee is reasonably related to legitimate non-punitive

governmental objectives, it does not, without more, amount to

punishment. See, Bell, 441 U.S. at 539; see also, Bowman v. City

of Middletown, 91 F.Supp.2d 644 (S.D.N.Y. 2000). In determining

the constitutionality of body searches of inmates, this Court

held that institutional security and preserving internal order

and discipline were essential goals that may require limitation

or retraction of retained constitutional rights of pre-trial

detainees. Accordingly, prison officials must be free to take

appropriate action to ensure the safety of inmates and correc-

tions personnel. See, Bell, 441 U.S. at 546.

In light of the problems that arise in the daily operations of

a correctional facility, prison administrators should be ac-

corded wide-ranging deference in adoption and execution of

policies and practices that, in their judgment, are necessary to

preserve internal order, security and safety. See, Bell, 441 U.S.

13

at 547 (citing, Jones v. North Carolina Prisoners’ Labor Union, 433

U.S. 119, 97 S.Ct. 2532, 53 L.Ed.2d 629 (1977) [additional

citations omitted ]). “Such considerations are peculiarly within

the province and professional expertise of corrections officials,

and in the absence of substantial evidence in the record to

indicate that the officials have exaggerated their response to

these considerations, courts should ordinarily defer to their

expert judgment in such matters.” Pell v. Procunier, 417 US.

817, 827, 94S.Ct. 2800, 2806, 41 L.Ed.2d 495 (1974).

In Bell, this Court found that the practice of conducting

visual body-cavity searches of pre-trial detainees after contact

visits did not violate the Fourth and Fifth Amendments. When

balancing the significant and legitimate security and safety

interests of the facility as against the inmates’ privacy interests,

this Court held that such searches could be conducted on less

than probable cause and were not unreasonable. See, Bell, 441

U.S. at 558. While the test of reasonableness under the Fourth

Amendment was not capable of precise definition or mechani-

cal application, this Court stated that each case required a

balancing of the particular need for the search against the

invasion of personal rights that the search engendered. Courts

must consider the scope of the particular intrusion, the manner

in which it was conducted, the justification for initiating it and

the place in which it is conducted. See, Bell,,441 U.S. at 559.

Subsequent to Bell, this Court decided the case of Turner v.

Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), involv-

ing the constitutionality of prison restrictions on an inmate’s

right to marry. In Turner, this Court determined that the

standard of review for a prison regulation and its constitution-

ality is whether the regulation is reasonably related to legiti-

mate penological interests. In determining reasonableness, the

relevant factors to be considered by the Courts include: (a)

whether there is a valid, rational connection between the

14

regulation and a legitimate, neutral governmental interest; (b)

whether there are alternative means of exercising the asserted

constitutional right that remain open to inmates; (c) what

extent the proffered accommodation of the asserted right will

have on prison staff, prisoners’ liberty and the allocation of

limited prison resources; and (d) whether the regulation

represents an exaggerated response to prison concerns. See,

Turner, 482 U.S. at 89, 107 S.Ct. at 2262; see also, Nicholas v.

Miller, 189 F.3d 191 (2nd Cir., N.Y. 1999). The Turner Court

further found that application of the foregoing test would

require particular deference to the expertise of correction

officials. See, Turner, 482 U.S. at 90.

The holding of this Court in the case of Turner, 482 U.S. at 78,

implicitly overruled the Second Circuit's decision in the case of

Weber, 804 F.2d at 796. In his dissent in the case below, the

Honorable Jose A. Cabranes suggested that Second Circuit

cases since Weber and Turner have been decided using two

different standards: (1) that of “reasonable suspicion” as set

forth in Weber; and (2) that of “reasonable relation to legitimate

penological objectives”, as set forth in Turner. Judge Cabranes

determined that the standard set forth in Turner must prevail,

as this Court decided this particular case. In further support of

his position, Judge Cabranes noted that in no other case was a

distinction made between “jails” and “prisons,” as was done by

the majority in the Shain v. Ellison [273 F.3d 56 (2d Cir. N.Y.,

2001)] case to support its decision that the Weber standard

applied to body searches of misdemeanor pre-trial detainees.

Judge Cabranes further noted that other Circuits “routinely”

applied the Turner standard to cases involving “jails.” See,

Shain, 273 F.3d at 71.

The State Courts in New York have also deferred to the

authority of correction officials in the creation and implementa-

tion of policies relating to inmate management, security, safety

15

and discipline. See, Clow v. Coughlin, 222 A.D.2d 781, 634

N.Y.S.2d 823 (3rd Dept. 1995); Allah v. Coughlin, 190 A.D.2d 233,

599 N.Y.S.2d 651 (3rd Dept. 1993).

In the case of Covino v. Patrissi, 967 F.2d 73 (2nd Cir. 1992),

the Second Circuit ruled that random visual body-cavity

searches of inmates were related to legitimate penological

interests. The Covino Court found that there were no viable

alternative means that would allow prisoners to exercise

limited bodily privacy rights, which, at the same time, would

allow corrections officials to fully achieve the effectiveness of

the challenged searches. See, Covino, 967 F.2d at 79. The Covino

Court further noted that the Turner requirement of a reasonable

alternative required the Plaintiff inmate to point to an alterna-

tive policy that fully accommodated the prisoner's rights at de

minimis cost to valid penological interests. See, Covino, 967 F.2d

at 80.

OCCF personnel accept pre-trial detainees pursuant to

lawful securing orders, issued by various local Courts. In most

cases, the transport of these detainees is conducted by Orange

County Sheriff's officers, not by officers from the arresting

agencies, with the exception of inmates admitted through

arrests made by the City of Newburgh Police Department and

the New York State Police. As such, corrections officials at the

OCCF, rarely, if ever, are provided with any information

regarding the circumstances of a particular detainee’s arrest,

one of the criteria the Weber Court permitted when considering

reasonable suspicion for a strip search. The fact that a pre-trial

detainee may have been searched by the arresting agency is of

no consequence as basic corrections training requires an officer

to treat an incoming inmate as if he/she had never been

searched. A corrections officer is trained that he/she cannot

assume that any newly admitted inmate has been properly

searched by anyone other than him/herself.

16

B. The New York State Commission of Correction requires

immediate screening and visual assessment, with classifica-

tions procedures mandated to be completed within three

business days.

Pursuant to the Rules and Regulations of the State of New

York, Commission of Corrections, each inmate on admission to

a local correctional facility shall undergo an initial screening

and risk assessment, which shall consist of a screening inter-

view, visual assessment and review of commitment docu-

ments. Suchscreening and assessment shall occur immediately

upon an inmate’s admission. 9 NYCRR Section 7013.7(a). In

pertinent part, the State regulations further provide that a

screening instrument shall be utilized to elicit and record

information on each inmate relating to the following:

(1) visible injury / injuries;

(2) medical conditions requiring immediate treat-

ment;

(3) mental or physical handicap(s)....

(6) history of detention or incarceration, including but

not limited to hostile relationships with other

inmates...

(8) present appearance and behavior...

(10) criminal charge(s) and conviction(s); and

(11) any other relevant information concerning the

safety or welfare of the inmate.

See, 9 NYCRR Section 7013.7(b). Lastly, the State regulations

require that “an immediate decision concerning the disposition

of each inmate shall be made on the basis of information

gathered during initial screening and risk assessment.” 9

NYCRR Section 7013.7(c).

17

State Commission of Correction regulations require that

classification of an inmate [the process by which an inmate is

assigned to a particular housing unit, with consideration given

to his/her security, supervision and special needs] be com-

pleted within three business days. See, 9 NYCRR 7013.8. Until

that classifications process is completed, all newly admitted

inmates are housed temporarily in the same area. In light of the

foregoing State regulations governing the operation of local

correctional facilities, as well as the legitimate penological

interests of inmates’ and corrections officers’ health and safety,

the Sheriff of Orange County implemented the policy of body

searches for each inmate admitted to the OCCF. Significantly,

the New York State Commission of Correction, never objected

to, nor cited the OCCF’s body search policies as being im-

proper, inappropriate or unconstitutional in any of the Commis-

sion’s surveys performed during the years 1999 through the

present date.

The Second Circuit has applied both the Weber and the

Turner standards in cases involving correctional facility

regulations. There is conflict within the Circuit itself as to what

standard should be applied to correctional facility regulations.

There is conflict among the Circuits across the country as to

what standard should be applied to correctional facility

regulations [See, Mauro v. Arpaio, 188 F.3d 1054 (9th Cir.

1999)(en banc) cert. denied, 529 U.S. 1018 (2000); Siddiqi v. Leak,

880 F.2d 904 (7th Cir. 1989)]; as well as under what circum-

stances are body searches of pre-trial detainees appropriate on

their admission to correctional facilities. [See, Kraushaar v.

Flanigan, 45 F.3d 1040 (7th Cir. 1995); Justice v. City of Peachtree

City, 961 F.2d 188 (11th Cir. 1992); Thompson v. City of Los

Angeles, 885 F.2d 1439 (9th Cir. 1989); Dobrowolskyj v. Jefferson

County, Ky., 823 F.2d 955 (6th Cir. 1987) cert. denied, 484 U.S.

1059 (1988)]. Correctional officials are in the best position to

determine the security needs of their facilities. If correctional

18

facility regulations do not infringe on constitutional rights, the

decisions of correctional administrators must be respected. In

these post-9/11/01 times of heightened security concerns,

corrections personnel throughout the nation are more than

reasonable in their desire to prevent the introduction of

contraband into their facilities. As such, their expertise in such

matters should be deferred to by all Courts, according to the

standards enunciated by this Court in the Turner case.

CONCLUSION

The petition for a writ of certiorari should be granted.

Dated: Goshen, N.Y. Respectfully Submitted,

October 25, 2002

Richard B. Golden

Of Counsel

CATHERINE M. BARTLETT

County Attorney of Orange

County

255-275 Main Street

Goshen, New York 10924

(845) 291-3150

On the Brief,

Christina M. Sanabria