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

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No. 02-541 (4) “ 3 ome

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Supreme Court of the Untted States

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THE COUNTY OF NASSAU and JOSEPH JABLONSKY,

Petitioners,

vs.

RAY E. SHAIN,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

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MOTION FOR LEAVE TO FILE AS AMICUS

CURIAE AND BRIEF OF AMICUS CURIAE

CORRECTION OFFICERS’ BENEVOLENT

ASSOCIATION IN SUPPORT OF PETITION

FOR A WRIT OF CERTIORARI

RICHARD J. KOEHLER

MARC ALAIN STEIER

KOEHLER & ISAACS, LLP

Attorneys for Amicus Curiae

Correction Officers’ Benevolent

Association

120 Broadway — 29" Floor

New York, New York 10271

(917) 551-1300

November 5, 2002

MOTION FOR LEAVE TO FILE

AMICUS CURIAE BRIEF '

Pursuant to Rule 37.3(b) of the Rules of the Supreme Court

of the United States, the Correction Officers’ Benevolent As-

sociation, Inc. (““COBA”) hereby moves this Honorable Court

for leave to file an amicus curiae brief in support of the Pe-

titioners. The brief follows this motion. COBA urges the

Court to reverse the decision of the Second Circuit which

held that individuals arraigned on misdemeanor charges may

not Constitutionally be strip searched prior to admission to

a “jail” absent individualized reasonable suspicion that the

inmate is in possession of contraband.

COBA has requested leave of the parties’ counsel to file

an amicus curiae brief, but has secured such consent only

from counsel for Petitioners.

COBA is the certified bargaining representative for nearly

11,000 men and women Correction Officers who work for

one of the largest municipal correctional systems in the

nation — the New York City Department of Correction

(““NYCDOC”). Responsibility for the safety and security of

inmates, visitors, and both uniformed and non-uniformed

NYCDOC staff falls largely to the members of COBA.

However, under the Second Circuit’s analysis in Shain v.

Ellison, 273 F.3d 56 (2d Cir. 2001) this legitimate safety

interest has been compromised. COBA members are now

prohibited from conducting routine strip-searches of new

admittees to facilities under the control of the NYCDOC; a

correctional system where, regardless of the charge on which

they have been arraigned, inmates are inserted into the

' Pursuant to Rule 37.6 of this Court, counsel for amicus curiae authored

this brief in its entirety. No monetary contribution was made to the pre-

paration of this brief by any person or entity other than amicus curiae and

its counsel.

il

general population of nearly 14,000 incarcerated people on

Rikers Island.

The fallacious jail/prison distinction made by the Circuit

Court fails to take into consideration the qualitative and

quantitative differences between small facilities which are

termed “jails,” and one of the largest American municipal

correctional facilities — Rikers Island — which is a “jail”

under the Circuit Court’s analysis. The Circuit Court’s deci-

sion impermissibly interferes with legitimate security con-

cers of correctional authorities, and is a barrier to the safe

operation and administration of the NYCDOC by COBA

members. Fhe input of COBA would be helpful to the Court

in resolving this matter.

Given the dire ramifications of the Circuit Court’s decision

upon the day-to-day operations of the NYCDOC and the

safety of COBA members and their charges, amicus curiae

respectfully request that this Honorable Court grant it leave

to file the attached brief.

ili

QUESTION PRESENTED FOR REVIEW

Like the Nassau County Correctional Center (“NCCC”), the

New York City Department of Correction (“NYCDOC”), for

which Correction Officers’ Benevolent Association (“COBA”)

members work, has a policy of strip searching all those ad-

mitted to the care of the NYCDOC in order to prevent entry

of weapons, drugs, and. other contraband into the system.

However, the Second Circuit applied a heightened “reason-

able suspicion” standard first articulated in Weber v. Dell,

804 F.2d 796 (2d Cir. 1986), and declared the NCCC strip

search policy in violation of the Fourth Amendment of the

United States Constitution. Shain v. Ellison, 273 F.3d 56 (2d

Cir. 2001).

As set forth in the dissent of Circuit Judge Cabranes, this

ruling conflicts with several other Circuits which apply

to such searches this Court’s more deferential “reasonably

related to legitimate penological objectives” standard es-

tablished one year after Weber in Turner v. Safley, 482 US.

78 (1987). According to the Circuit Court, Turner’s holding

is limited to cases involving “prisons” and does not apply

to “jails” such as NCCC or the system operated by the

NYCDOC; which, whether termed a “prison” or “jail,” is one

of the largest municipal correctional institutions in the United

States.

The question presented is: Whether this Court’s holding in

Turner v. Safley, 482 U.S. 78 (1987), that a prison regulation

is constitutional if it bears a reasonable relation to a legiti-

mate penological objective, applies to any detention facility,

whether it is called a jail, a prison or a correctional center?

iv

TABLE OF CONTENTS

Page

MOTION FOR LEAVE TO FILE

OS CUA TI seiecttincneenssitinsncsenenanseinvnnesnn i

QUESTION PRESENTED FOR REVIEW.................05 iii

FALE Ce A i acters ss entestinntitttnnnnsinctiiciniin v

ee ee eieriteceecttinventatiiinccincieninninicniins

SUMMARY OF ARGUMENT..............:cccsccsssssesseeesseenes 2

ARGUMENT

A. Constitutional Standards Applied to Pre-Trial

Detainees, Strip Searches, and Prison

RII ascccvesnsecensenseersstenesnssinnnnneniosantennennannes 3

B. The Circuit Court Relied Upon an Unsound

Distinction Between “Jails” and “Prisons” ......... 5

C. Strip/Body Cavity Searches of Pre-Trial

Detainees are Constitutional Under Turner

SFR Fa a a cnecinnsndesoeninretnticrnsenniiens 11

2. Screening for Contraband and Institutional

Security are Legitimate Penological

NO sisck nevsiinsintisiaiinegadcicsinciinnaaiipdetalniiaintibaenines 12

3. No Alternative Would Meet the Legitimate

Security Interest of Strip Searching

Per FID wicccicncnerstenicaninctttvneninennsinne 13

D. The Circuit Court’s Decision Undermines

Security and Misapplies this Court’s

TELE SRLS AES A ERS IAEA Oe 15

COILTIIIIN asscciceceinesesensosscmsenscnetiinnicensinttcbtatedsesuessenis 18

TABLE OF AUTHORITIES

Page(s)

Cases:

Anderson v. County of Kern, 75 F.3d 448 (9th Cir.

1995), cert. denied, 516 U.S. 916 (1995)... 6

Ashker v. California Dept. of Corrections, 2002 WL

31155116, (N.D. Cal. Sept. 11, 2002)... 15

Barney v. Pulsipher,143 F.3d 1299 (10th Cir. 1998)... 6

Bazzetta v. McGinniss, 286 F.3d 311 (6th Cir.

2002), pet. for cert. filed, (U.S. Jul. 18, 2002)

CRUD, CFD nc cnsncinsctnisnanititteinnsenshentislieapeabmaneaias 14

Bear v. Kautzky, 2002 WL 31203882 (8th Cir.

COOH. ©, GID secvescensssentetsconioceiniasdicnsenesigiahaiienasiinn 14

Bell v. Wolfish, 441 U.S. 520 (1979)..........ccccsssseeseeeees passim

Benjamin v. Coughlin, 905 F.2d 571 (2d Cir. 1990),

cert. denied, 498 U.S. 951 (1990) ............ssccesesseeeees 15

Block v. Rutherford, 468 U.S. 576 (1984)................ 5, 12, 13

Clement v. California Dept. of Corrections,

2002 WL 31050915 (N.D.Ca. Sept. 9, 2002)........... 15

Cottrell v. Kaysville City, 994 F.2d 730

(OTs GIy FE ssicscsintsiscenesidenitchiictaillantchabandekilaaadidaiecs 13

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

Dobrowolskyj v. Jefferson County, 823 F.2d 955 (6th

Cir. 1987), cert. denied, 484 U.S. 1059 (1988)........ 13

Dodge v. County of Orange, 209 F.R.D. 65,

2002 U.S. Dist. Lexis 13374, No. 02 Civ. 769

CBAC. U » BURT tty A iscnscicesnniancnesiintadaibeatenten 16, 16n.5

Dufrin v. Spreen, 712 F.2d 1084 (6th Cir. 1983)......... 8,14

vi

Page(s)

Farmer v. Perill, 288 F.3d 1254 (10th Cir. 2002)........ 4

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

ADDIE). ..n.<orerceeresecsnerecserssprorsssosensnssenosossnssosseseqsocsoosoosee 13

Harris v. Bolin, 950 F.2d 547 (8th Cir. 1991).............. 6

Harris v. Ostrout, 65 F.3d 912 (11th Cir. 1995).......... 15

Hudson v. Palmer, 468 U.S. 517 (1984) ..........cceeceeeeees 12

Johnson v. Phelan, 69 F.3d 144 (7th Cir. 1995),

cert. denied, 519 U.S. 1006 (1996) ..........:cccccceeeeeens 6

Jones v. North Carolina Prisoners’ Union,

433 U.S. 119 (1977) n-ccocceceresceccosereserovercocsovsvecsosncesees 5

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

(11th Cir. 1992)..........cccscccssrccssesesecssrererseserseseesseseere 12

Kaufman v. Rivera, 173 F.3d 844 (2d Cir. 1999)......... 17

Logan v. Shealy, 660 F.2d 1007 (4th Cir. 1981),

cert. denied, 455 U.S. 952 (1982) .........sssceeseesereeeees 13

Magill v. Lee County, 990 F.Supp. 1382 (M.D. Ala.),

aff'd., 161 F.3d 22 (11th Cir. 1998) ..........cccceeseeeee 12

Mary Beth G. v. City of Chicago, 723 F.2d 1263

(7th Cir. 1983)...........c.seccsrercesersessrsscerersscscsssesereorers 17

Masters v. Crouch, 872 F.2d 1248 (6th Cir. 1989)...... 13

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

(en banc), cert. denied, 529 U.S. 1018 (2000)........ 5-6, 12

Mayoral v. Sheehan, 245 F.3d 934 (7th Cir. 2001)...... 14

Michenfelder v. Sumner, 860 F.2d 328 (9th Cir.

Vii

Page(s)

Morrison v. Garraghty, 239 F.3d 648 (4th Cir.

| RS en Ue aOR I OTN ET TEN 15

Murcia v. County of Orange 2002 WL 31245264

(S.D.N.Y. Oct. 4, 2002) (No. 00 Civ. 1325)............ 16-17

Pell v. Procunier, 417 U.S. 817 (1974)...............scc00000 5

Prison Legal News v. Cook, 238 F.3d 1145 (9th Cir.

Se iissacavichsecnssstanticesnsnadineanedaseuminienttiniiadigtinimintinaniniattn 15

Procunier v. Martinez, 416 U.S. 396 (1974)................ 3

Reynolds v. Wagner, 128 F.3d 166 (3d Cir. 1997)....... 6

Shain v. Ellison, 273 F.3d 56 (2d Cir. 2001)............... passim

Shaw v. Murphy, 532 U.S. 223 (2001) ..............cccceesees 3

Swain v. Spinney, 117 F.3d 1 (1st Cir. 1997)............... 17

Turner v. Safley, 482 U.S. 78 (1987).............cccceeeeeeeees passim

United States v. El-Hage, 213 F.3d 74 (2d Cir.),

cert. denied, 531 U.S. 881 (2000) ......................000 7-8, 10

Veney v. T.V. Wyche, 293 F.3d 726 (4th Cir. 2002)...... 5

Wachtler v. Herkimer County, 35 F.3d 77 (2d Cir.

Tea pesconsauneimesnntncndedetntiaditeinsiantaniniiietutnasntatiesibiiiadecetis 7

Walker v. Navarro County Jail, 4 F.3d 410 (6th Cir.),

reh'g denied, 1997 WL 42523 (6th Cir. Nov. 26,

See iicuiicenisnissocsdiiadlnesnaiatsiaiiaialieattiiniasdpaciemiicnsiiainiiieiaeiameidibien 6

Walsh v. Franco, 849 F.2d 66 (2d Cir. 1988) .............. 7

Washington v. Harper, 494 U.S. 210 (1990)................ 4

Weber v. Dell, 804 F.2d 796 (2d Cir. 1986)................ ii, 2, 7

Viil

Page(s)

Whitley v. Albers, 475 U.S. 312 (1986)...........:s:ssses00+ 15

Wolf v. Ashcroft, 297 F.3d 305 (3d Cir. 2002)............- 14

Statutes:

N.Y. Correct. Law § 95 ...........ccccccsssrsssesesensescseseeseeses 10

N.Y. Penal Law § 70.00(1)..............scssccssessesesseseseesenees 10n.4

N.Y. Penal Law § 70.00(4)........:::cscesessesseesesneeeseneeeesees 10n.4

N.Y. Pemal Law § 70.15 ...........sccscssseccseessessseseeeseessesees 10n.4

Sa aT A iis ciiatcanscmninocie 10n.4

Text:

Black’s Law Dictionary (7th ed. 1999) ...........:sesseeee 6, 6n.3

Silverman, Ira J., Corrections Today: A Comprehensive

Overview (2d ed. 2001) ............sccssssssssereeresessseeesenens 11

INTEREST OF AMICI

COBA is the certified bargaining representative for the

nearly 11,000 men and women Correction Officers who

work for one of the largest municipal correctional systems in

the nation — the New York City Department of Correction

(“NYCDOC”). Responsibility for the safety and security of

inmates, visitors, and both uniformed and non-uniformed

NYCDOC staff falls largely to the members of COBA.

The NYCDOC averages a daily inmate population of ap-

proximately 14,500' — more than the incarcerated population

in any of 35 states. On a day to day basis the men and women

of COBA transport approximately 1,700 inmates to 15 court

detention facilities in the 5 boroughs of New York City. The

NYCDOC admits into custody somewhere between 120,000

and 130,000 inmates annually. Of these, nearly 70% are pre-

trial detainees — charged with misdemeanors and felonies.

In some cases these detainees are residents of Rikers Island”

due to an inability to meet bail set by a Judge. However, in

many more cases, these pre-trial detainees have been placed

into the custody of the NYCDOC by a Judge due to the

nature of the crime charged, particular criminal history, or

other factors.

As with the NCCC, the remainder of inmates are mis-

demeanants and felons serving terms one year or less, parole

violators awaiting parole revocation hearings, state inmates

awaiting either transfer to state facilities or resumption of

court proceedings, and state “contract” convicts serving their

time at Rikers. It must be noted that inmates in the NYCDOC

_ ' Comparatively, the NCCC houses appivximately 1,800 inmates daily,

and cycles only about 14,000 people through its’ system annually. Shain,

273 F.3d at 74 (Cabranes, J., dissenting).

? This term refers generally to the ten jails housing men and women for

the NYCDOC. For more information on the NYCDOC, please see the

web site at http://www.nyc.gov/html/overview. html.

system, like inmates at NCCC, are not assigned to housing

based upon pending charges, but rather factors such as age,

gender, sexual orientation, prior history of behavior within

the NYCDOC system, or particular medical needs.

Should the Second Circuit decision stand, COBA members

will be unable to keep contraband from entering the

NYCDOC system. This will have dire consequences on the

safety of inmates and staff.

SUMMARY OF ARGUMENT

In Shain v. Ellison, 273 F.3d 56 (2d Cir. 2001), the Second

Circuit departed from this Court’s jurisprudence concerning

prison regulations. The majority in Shain held that visual

strip/body cavity searches of misdemeanant pre-trial de-

tainees, absent a “reasonable suspicion” that the person being

searched possessed contraband, violates the Fourth Amend-

ment. The Circuit Court applied this standard developed in

Weber v. Dell, 804 F.2d 796, 802 (2d Cir. 1986) rather than

the “reasonably related to penological interests” standard

developed by this Court a year later in Turner v. Safley, 482

U.S. 78, 89-90 (1987). The Turner standard has been applied

by numerous Circuit Courts. Indeed, the Second Circuit ig-

nored that it had previously applied the “reasonably related”

standard in the context of strip searching a pre-trial detainee

who was commingled with sentenced inmates. Covino v.

Patrissi, 967 F.2d 73 (2d Cir. 1992). By their ruling, the

Circuit Court succeeded in “[creating] a Circuit split where

there was none — a Circuit split that calls out for resolution

by the Supreme Court.” Shain, 273 F.3d at 70 (Cabranes, J.,

dissenting).

The Circuit Court justified this choice of standard by

mechanically differentiating “jails,” such as the NCCC or

Rikers Island, from “prisons.” As was established by the

dissent, there is no basis in this Court’s jurisprudence for the

“untenable distinction” between “jails” and “prisons” when

dealing with strip searching new admittees to a correctional

facility. Shain, 273 F.3d at 70 (Cabranes, J., dissenting).

For three decades it has been the developing jurisprudence

of this Court to avoid unnecessary judicial intrusion into

the decisions made by corrections professionals concerning

institutional security. However, the “reasonable suspicion”

standard utilized by the Circuit Court reverses thirty years

of jurisprudence by now holding corrections personnel to

the standard which applies to police searches incident to

an arrest. In so-doing, the Second Circuit has identified an

expectation of privacy in correctional facilities which runs

counter to that level previously found appropriate by this

Court.

It is therefore of vital importance that the Petition be

granted and the decision of the Circuit Court be reversed and

remanded for the application of the Turner standard.

ARGUMENT

A. Constitutional Standards Applied to Pre-Trial

Detainees, Strip Searches, and Prison Regulations

While pre-trial detainees do not forfeit their constitutional

rights at the jailhouse door, they simply do not “possess the

full range of freedoms of an unincarcerated individual.” Bell

v. Wolfish, 441 U.S. 520, 546 (1979). Rather, a detainee’s

rights must be balanced against “[t]he fact of confinement as

well as the legitimate goals and policies of the penal insti-

tution.” Jd. This Court has long tempered this balancing test

by a principled position of deference to prison officials and

avoidance of court involvement in prison administration —

especially federal court interference in the running of state

institutions. Procunier v. Martinez, 416 U.S. 396 (1974). This

principle of deference to prison administrators was again re-

affirmed by this Court just two terms ago. Shaw v. Murphy,

532 U.S. 223 (2001).

Courts have recognized that “the test of reasonableness

under the Fourth Amendment is not capable of precise defin-

ition or mechanical application,” and therefore assessing the

reasonableness of a strip search procedure requires a balanc-

ing approach rather than the restricted “jail/prison” approach

endorsed by the Second Circuit. Bell, 441 U.S. at 559. As

stated in Bell, “each case requires a balancing of the need for

the particular search against the invasion of personal rights

that the search entails.” Jd. Positing such balancing is one

thing; to apply it correctly in the practical ‘world of correc-

tions is another matter.

In Turner v. Safley, this Court established a standard for

evaluating the constitutionality of prison regulations which

may impinge upon an inmate’s First Amendment rights.

Turner, 482 U.S. at 89-90. That standard assesses whether

the regulation is “reasonably related to legitimate penological

interests.” In 1990, this Court made explicit that the Turner

standard was not limited to First Amendment challenges to

prison regulations, but should be applied in all cases “when a

prison regulation impinges on inmates’ constitutional rights.”

Washington v. Harper, 494 U.S. 210, 224 (1990). Indeed,

the Turner test has been applied by the Circuit Courts in the

context of gainsaying institutional security by strip searching

prisoners. See e.g., Farmer v. Perill, 288 F.3d 1254 (10th

Cir. 2002) (strip search and visual cavity inspection of inmate

going from Special Housing Unit to recreation yard); Michen-

felder v. Sumner, 860 F.2d 328 (9th Cir. 1988) (maximum

security prisoners searched on entering and leaving unit).

This Court explained that the adoption of this standard was

to reconcile the somewhat limited nghts of the incarcerated

“with the recognition that prison authorities are best equipped

to make difficult decisions regarding prison administration.”

Turner, 482 U.S. at 84-85. This significant principle of def-

erence to correctional professionals, such as are represented

by COBA, underscores the need to grant the Petition and

overturn the Second Circuit’s erroneous decision in Shain.

B. The Circuit Court Relied Upon an Unsound

Distinction Between “Jails” and “Prisons”

In attempting to reconcile the issue of strip searches of

pre-trial detainees with precedent in the Circuit, the Shain

Court constructed its reasoning in applying the higher “rea-

sonable suspicion” standard around a pretended distinction

between a “prison” and a “jail.” This, notwithstanding that

this Court has a developed jurisprudence concerning the “rea-

sonably related” standard. To permit this false dichotomy built

around the “jail/prison axis” requires that this Court accept

several false assumptions. Shain, 273 F.3d at 71 (Cabranes,

J., dissenting).

First, this Court must reject its own jurisprudence leading

to Turner. As was adroitly pointed out by Judge Cabranes’

dissent, the evolution of the “reasonably related” test mani-

fested this Court’s intention that the same standard should

apply to both “jails” and “prisons.” Shain, 273 F.3d at 73

(Cabranes, J., dissenting). Indeed, the four cases which were

the foundation for the standard enunciated in Turner dealt with

both jail and prison settings. See, Pell v. Procunier, 417 U.S.

817 (1974) (concerning a prison); Jones v. North Carolina

Prisoners’ Union, 433 U.S. 119 (1977) (addressing issues in

a prison and a jail); Bell v. Wolfish, 441 U.S. 520 (1979)

(regarding a jail); Block v. Rutherford, 468 U.S. 576 (1984)

(addressing a jail). This Court’s own jurisprudence makes

clear that the “jail/prison” distinction drawn by the Second

Circuit cannot be abided.

Second, the decision in Shain runs counter to this Court’s

jurisprudence dealing with regulations -in jails and prisons.

Moreover, as was pointed out by the dissent below, the

Turner test has been applied in many Circuits both in jail set-

tings and to pre-trial detainees. See e.g., Veney v. T.V. Wyche,

293 F.3d 726 (4th Cir. 2002) (Turner applied to Riverside

regional jail in Hopewell, Virginia); Mauro v. Arpaio, 188

F.3d 1054 (9th Cir. 1999) (en banc), cert. denied, 529 U.S.

1018 (2000) (Turner applied to claim brought by county jail

inmate); Barney v. Pulsipher, 143 F.3d 1299 (10th Cir. 1998)

(acknowledging that separation of male and female inmates

in county jail satisfies penological interests); Reynolds v.

Wagner, 128 F.3d 166 (3rd Cir. 1997) (Turner analysis, rather

than strict scrutiny, applied to Berks County “prison” which

held pre-trial detainees, sentenced inmates and federal contract

inmates); Walker v. Navarro County Jail, 4 F.3d 410 (6th

Cir. 1996), reh’g denied, 1997 WL 42523 (6th Cir. Nov. 26,

1996) (pre-trial detainee in jail); Anderson v. County of Kern,

75 F.3d 448 (9th Cir. 1995), cert. denied, 516 U.S. 916 (1995)

(pre-trial detainee and convicts in County Jail); Johnson v.

Phelan, 69 F.3d 144 (7th Cir. 1995), cert. denied, 519 U.S.

1006 (1996) (pre-trial detainee in Cook County Jail); Harris

v. Bolin, 950 F.2d 547 (8th Cir. 1991) (pre-trial detainee in

County detention center).

This “semantic” distinction derided by Judge Cabranes in

his dissent is all the more difficult to accept given that it

rests on static definitions rather than corrections realities.

The Circuit Court presumed that the contemporary usage

of the terms “prison” and “jail” follows the definitions found

in Black’s Law Dictionary.’ Rather, the terms are routinely

interchanged “by everyone other than students of penology.”

Shain, 273 F.3d at 72 fn. 3 (Cabranes, J., dissenting).

The question is why the Turner standard, which has proved

so adaptable in the various Circuits, should now pose a

> Admittedly, some theoretical differences can be found between jails and

prisons. However, what is in theory is not in reality. The Second Circuit

does not cite to any supporting case law or empirical data embracing this

distinction. The Court can defend its position only by restricting its

reasoning to Black’s derivative rather than cirect definitions of “prison”

and “jail.” First definition of prison: “a public building or other place for

the confinement for persons whether as punishment imposed by the law

or otherwise in the course of the administration of justice.” Black’s Law

Dictionary, 1194 (7th ed. 1999). First definition of jail: “a gaol; a prison.”

Id. at 834.

problem for the Second Circuit. Indeed, no barrier existed

prior to Shain when the Turner standard was applied by the

Second Circuit not only to pre-trial detainees i in “prison” con-

texts, but to “jail” settings as well.

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

Second Circuit used the Turner standard as applied to the

rights of a pre-trial detainee who had only been charged of a

crime and not convicted. In so doing, the Circuit determined

that an arrestee might, under some circumstances, be sub-

jected to a cavity search without individualized (i.e. “reason-

able”) suspicion. Jd. at 77-78. Like the dissent below, COBA

believes that the Second Circuit failed to distinguish its

departure from this standard. Rather, it would seem that the

Second Circuit’s ruling was unduly influenced by its Prior

decision in Weber v. Dell. Weber and its progeny are inap-

posite because, as the City of New York has pointed out in

its amicus curiae brief, these cases involved pre-arraignment

detainees. Brief for City of New York at 14. The strip searches

were conducted prior to a judicial determination that prob-

able cause warranted further incarceration — very much in

contrast with the situations dealing with post-arraignment

arrestees.

Furthermore, Judge Cabranes prudently notes that subse-

quent cases affirming Weber, Walsh v. Franco, 849 F.2d 66

(2d Cir. 1988) and Wachtler v. Herkimer County, 35 F.3d 77

(2d Cir. 1994), completely failed to address the Turner stan-

dard. Hence, this whole line of reasoning may be considered

to have been overruled sub silentio by this Court’s decision

in Turner. Shain, 273 F.3d at 74 fn. 5 (Cabranes, J., dissent-

ing). Moreover, and perhaps more damaging, the Circuit

Court glosses over the fact that it has approved of Turner’s

application to the balance between a pre-trial detainee’s con-

stitutional rights and regulations in a jail setting. See, United

States v. El-Hage, 213 F.3d 74, 81-82 (2d Cir.), cert. denied,

531 U.S. 881 (2000). COBA offers that the arguments ad-

vanced by the Circuit Court are completely unconvincing for

departing from the 7urner standard and the “well-settled,

non-technical meaning of the word ‘prison.’” Shain, 273

F.3d at 72 (Cabranes, J., dissenting). Since the Circuit Court

has applied Turner’s “reasonably related” standard to what

qualifies as a jail, by its own typology, it should be directed

to do so now by this Honorable Court.

The Second Circuit’s position fails to recognize that

maintaining institutional security is a legitimate penological

interest within jails. This position is based upon the fal-

lacious assumption that only persons charged with minor

offenses, or who have been convicted of misdemeanors,

populate “jails,” and those convicted of felonies populate

“prisons.” The unspoken bias of the Second Circuit is that the

latter group has a greater propensity for smuggling contra-

band or for being violent. This Court rejected the same

argument almost three decades ago, and recognized that in

many cases pre-trial detainees pose a greater security risk

than do convicts. Bell, 441 U.S. at 547. Moreover, having

different standards for pre- and post-trial inmates would seem

to run afoul of this Court’s clear statement in Bell that prison

officials need not distinguish between convicted inmates and

pre-trial detainees when developing security practices. Bell,

441 US. at 546 fn. 28. See also, Dufrin v. Spreen, 712 F.2d

1084, 1087-1088 (6th Cir. 1983) (pre-trial detainee need not

be segregated from prison population).

Like NCCC, it is the policy of the NYCDOC to conduct a

strip search with a visual body cavity search when processing

all new admissions into the general population at Rikers

Island. In the case of the NYCDOC, inmates returning from

- Court, a hospital or outside medical facility, work release,

funeral or other circumstance, are strip searched without a

visual body cavity search. The reason for these searches is the

sheer number of interactions which new admissions can have

with inmates and others who may seek to have contraband

introduced into the NYCDOC system.

From the time an individual is arrested, to the time he is

admitted to Rikers Island, there exist numerous opportunities

for the pre-trial detainee to co-mingle with other arrestees.

These arrestees may be charged or even convicted of minor

or serious crimes. After a person is arrested he is placed in

a cell at a precinct station house. The detainee is mixed in

with a number of other arrestees who are then all together

transported to “central booking.” Upon arrival at central

booking, the detainee is held in police pens, mixed with other

arrestees, misdemeanants and felons, while awaiting finger-

printing and photographing. The detainee is then transferred

to one of fifteen court pens, which are notoriously over-

crowded, where he is once again intermingled with dozens

of people charged with offenses, minor and serious. During

arraignment, the detainee may come in contact with family

and friends, and certainly with his lawyer. Once a detainee is

remanded or held on bail, he is returned to the same court

pens and then transferred into the custody of the NYCDOC.

At this point he is given a physical, medical and blood tests,

and, finally, a visual (non-cavity intrusive) strip search. The

arrestee is yet again mixed with other pre-trial detainees held

on misdemeanor and felony charges who are transported to

the appropriate jail on Rikers Island. After arriving at Rikers,

he is placed in a receiving room according to rudimentary

characteristics such as gender, age, and medical needs. It is

not until later in the intake process, when housing is deter-

mined, that classification centers around an inmate’s propen-

sity for danger or crime charged. By this point, the person

has potentially come into contact with dozens of inmates for

whom he may have smuggled contraband, or to whom such

could have been passed. It must be stressed that each time a

detainee is transported to court, which occurs 1700 times per

day at the NYCDOC, this same commingling process is

10

repeated. Thus the chances for contraband to be brought into

the NYCDOC system are multiplied many fold.

The Second Circuit has held that a strip/body search policy

is unconstitutional because there is a “substantial difference

between jail and prison populations.” Shain, 273 F.3d at 56.

This perspective disregards the “quality” of inmates typically

housed at Rikers Island. For example, pursuant to legislative

mandate contract inmates serving felony sentences are housed

at the jails for a specified time periods. See, N.Y. Correct. Law

§ 95 (McKinney 2002). State detainees, including convicted

felons, are brought to Rikers to adjudicate a current case

or to await transfer to the appropriate state facility. Indeed,

New York State prisons are often overcrowded and lack

room to house convicted felons who are then held in jails.

Often, sentencing guidelines, rather than misdemeanor/

felony distinctions, play a significant role in determining jail

and prison populations.* Also, someone charged with a

felony may plea bargain a sentence to be served on Rikers.

Crowded court dockets may leave a person who is charged

with a violent felony, such as murder in the second-degree,

waiting in the jail; a wait that can often take up to two years.

Indeed, one case in which Turner was applied in the Second

Circuit, involved an approximate 30 month incarceration of

an Al-Qaeda associate charged with felonies. E/-Hage, 213

F.3d 74.

Finally, the Second Circuit’s typology fails to acknowl-

edge the evolving science of penology. Many states have

developed programs and initiatives servicing inmates which

* When the Second Circuit relied on the differences in sentence length

for misdemeanants and felons in N.Y. Penal Law Sections 70.00(1) and

70.15 to support its jail/prison distinction, the court need only have

looked at section 70.00 (4) to realize this error. Under this section, an in-

dividual convicted of felony possession of a loaded weapon can be given

a definite sentence and remanded to the local jail facility. See, N.Y. Penal

Law §§ 70.00(1), (4) and 265.02.

11

do not easily fall into the jail/prison dichotomy. For example,

the Kentucky Class D Felony Program allows certain felons

to be housed in county jails and provide community service.

In Texas, the jail system houses state felons serving sentences

up to two years or less followed by community supervision.

Furthermore, twelve states have jails authorized to house

persons convicted for one year or more. See, Silverman, Cor-

rections Today: A Comprehensive Overview 442 (2d ed.

2001). In New York, local correctional facilities often provide

substance abuse or mental health counseling treatment to

those convicted of misdemeanors or felonies. These institu-

tional innovations have been designed with deference to the

intricate needs of a heterogeneous inmate population; defer-

ence recognized as important by this Court in Bell. The

facilities providing such services do not fall neatly along the

jail/prison “axis” as evinced by the Second Circuit. Shain,

273 F.3d at 71 (Cabranes, J., dissenting).

Given these myriad common scenarios, it is amazing that

the Second Circuit hinges the resolution of a constitutional

issue on a legal fiction distinguishing “jails” from “prisons.”

This ignores very real security concerns and the only sure

method of securing the safety of inmates and staff alike.

C. Strip/Body Cavity Searches of Pre-Trial Detainees

are Constitutional Under Turner

1. The Turner Factors

In setting out the Turner “reasonably related” test esta-

blished in 1987, this Court articulated four factors for

determining whether a regulation or practice is sufficiently

reasonable to pass constitutional muster. Where these factors

are met, the judiciary should not substitute its judgment for

that of corrections professionals. Turner, 482 U.S. at 84-89.

The first of these four factors is whether a valid, rational

connection exists between the restriction and a legitimate

penological interest. If this is fulfilled, the inquiry turns to

12

whether an inmate has alternative means of exercising the

purported right; the impact an “accommodation” would have

on correction officers, staff, other inmates, and on a facilities’

resources; and-the existence or absence of a reasonable al-

ternative to the regulation or practice. Turner, 482 U.S. at

89-91. A proper examination of the Turner factors, as applied

to the NCCC policy and procedure as well as that utilized

by the NYCDOC, makes clear that both regulations are

reasonably related to a legitimate penological interest, and

that these policies and procedures are constitutional.

2. Screening for Contraband and Institutional

Security are Legitimate Penologicai Interests

There can be no serious contention that the overarching

interests of security and safety implicated with the smuggling

of drugs and weapons into jails is anything but a “legitimate

penological interest.” See, Mauro v. Arpaio, 188 F.3d at 1059.

This Court has long approved the security interest with

searching pre-trial detainees and convicted inmates after

contact visits, and in searching cells of the same to retrieve

contraband. See, Bell v. Wolfish, 441 U.S. 520 (1974)

(searches with all post-contact visit); Block v. Rutherford,

469 U.S. 576 (1984) (pre-trial detainees and cell searches).

Moreover, COBA is ever mindful not only that the safety of

Correction Officers and staff are central to prison adminis-

tration, but that the Constitution imposes a duty to ensure the

safety of prisoners. Hudson v. Palmer, 468 U.S. 517, 526-

527 (1984).

As corrections professionals, COBA members know that

the reality is “(e)ven those simply placed in a holding cell

could pose a danger to themselves, other inmates, and

the guards.” Magill v. Lee County, 990 F.Supp. 1382 (M.D.

Ala.), aff'd, 161 F.3d 22 (11th Cir. 1998). In combating this

reality, one of the most effective tools available to the cor-

rectional professional is the strip search. Justice v. City of

Peachtree City, 961 F.2d 188, 193 (11th Cir. 1992). This

s dnibehsinmiinaamemsideetsh., ikea dee

13

Court in Bell observed that “there is no basis for concluding

that pre-trial detainees pose any lesser security risk than con-

victed inmates. Indeed, it may be that in certain circum-

stances they present a greater risk to jail security and order.”

Bell, 441 U.S. at 546 fn. 28. Pre-trial detainees are by defi-

nition “persons unable to meet bail — often are awaiting trial

for serious, violent offenses, and many have prior criminal

convictions.” Block, 468 U.S. at 586. This is particularly true

at Rikers, where convicts are serving short terms of incarcer-

ation as compared with many pre-trial detainees who face the

possibility of lengthy imprisonment if convicted. Certainly,

the placement of a pre-trial detainee into the general popu-

lation of a jail has been recognized by Circuit Courts as an

important factor to be considered in deciding to conduct a

strip search. Cottrell v. Kaysville City, 994 F.2d 730 (10th

Cir. 1993); Fuller v. M.G. Jewelry, 950 F.2d 1437 (9th Cir.

1991); Masters v. Crouch, 872 F.2d 1248 (6th Cir. 1989);

Dobrowolskyj v. Jefferson County, 823 F.2d 955 (6th Cir.

1987), cert. denied, 484 U.S. 1059 (1988); Logan v. Shealy,

660 F.2d 1007 (4th Cir. 1981), cert. denied, 455 U.S. 952

(1982). Hence, it cannot be said that an inmate’s status as a

pre-trial detainee should exempt him from the legitimate se-

curity concern of contraband which all jails and prisons face.

3. No Alternative Would Meet the Legitimate

Security Interest of Strip Searching New

Admittees

Under Turner, once it is determined that the interest is

legitimate and reasonable, the inquiry turns on whether alter-

native means of exercising the purported “right” exist; the

impact an “accommodation” would have on correction of-

ficers, staff, other inmates, and on a facilities’ resources; and,

the existence or absence of a “reasonable alternative” to the

regulation or practice. In the current context, the answer to

all three is negative.

14

Since the “right” in question is that of privacy from visual

strip searches — which includes the close examination of

clothing once removed — the only option is for the pre-trial

detainee to remain fully clothed. As for “accommodation,”

the only option to searching would be to keep pre-trial

detainees from the general population at all points in their

incarceration, since there are many times (discussed supra at

B) when new admittees come into contact with inmates.

To develop a separate housing and transportation system

' to handle misdemeanants who cannot be strip-searched —

which is the only alternative that COBA can envision —

would be cumbersome, expensive, and still pose the danger

that the misdemeanant would independently act to smuggle

drugs and weapons. Indeed, practical considerations aside,

and the untold impact on resources and safety for all, the

courts have rejected such segregated housing. Mayoral v.

Sheehan, 245 F.3d 934 (7th Cir. 2001) (rejecting pre-trial

detainee challenge to failure to screen and segregate gang-

affiliated inmates); Dufrin, 712 F.2d at 1087-1088 (pre-trial

detainee need not be segregated from prison population).

Finally, as for “alternate” practices, the fact is that nothing

is more effective in both uncovering contraband and serving

as a deterrent to smuggling than the visual strip search. See,

Bell, 441 U.S. at 559 fn. 40 (rejecting alternative of metal

detectors as ineffectual).

It is expected that an argument will be advanced that ap-

plying Turner will be tantamount to putting prison regulations

beyond judicial review. This is far from the truth. See e.g.,

Bear v. Kautzky, 2002 WL 31203882 (8th Cir. Oct. 4, 2002)

(preliminary injunction granted to prisoners under Turner);

Wolf v. Ashcroft, 297 F.3d 305 (3d Cir. 2002) (misapplication

of Turner, no rational relationship shown; remanded);

Bazzetta v. McGinniss, 286 F.3d 311 (6th Cir. 2002), pet. for

cert. filed (U.S. Jul. 18, 2002)(No. 02-94) (visitation restric-

tions violated First Amendment associational rights, Eighth

Amendment rights, and Fourteenth Amendment due process

15

rights); Morrison v. Garraghty, 239 F.3d 648 (4th Cir. 2001)

(prison regulation fails Turner’s “reasonably related” nexus);

Prison Legal News v. Cook, 238 F.3d 1145 (9th Cir. 2001)

(no rational relationship between legitimate interest and reg-

ulation); Harris v. Ostrout, 65 F.3d 912 (11th Cir. 1995)

(striking strip search as “devoid of penological interest and

imposed simply to inflict pain”); Benjamin v. Coughlin, 905

F.2d 571 (2d Cir. 1990), cert. denied, 498 U.S. 951(1990)

(less restrictive alternative exists to meet alternative prong of

Turner test); Ashker v. California Dept. of Corrections, 2002

WL 31155116 (NLD. Cal. Sept. 11, 2002) (book policy arbi-

trary and does not reasonably meet legitimate penological

objective); Clement v. California Dept. of Corrections, 2002

WL 31050915 (N.D.Ca. Sept. 9, 2002) (no rational connection

between penological interest and internet-based document

ban policy). Clearly, challenges to overreaching prison pol-

icies have been successful under Turner. As this Court has

determined in a matter dealing with deference granted to

prison administrators, “deference does not insulate from re-

view actions taken in bad faith and for no legitimate purpose.”

Whitley v. Albers, 475 U.S. 312 (1986). Individual abuses of

any policing function may occur, but the solution is litigation

to curb the individual instance in question. Here, the Second

Circuit has disabled a time-tested system which reasonably

and rationally meets the institutional needs of facilities like

the NYCDOC. Such large complex correctional systems

require all new admittees to be searched lest contraband be

allowed into the system. Hobbling correction officials and

making these institutions run less safely and intelligently is

not what our Constitution requires. Shain, 273 F.3d at 75

(Cabranes, J., dissenting).

D. The Circuit Court’s Decision Undermines Security

and Misapplies this Court’s Precedent

The logical conclusion of applying the intrusive judicial

review standard used by the Second Circuit would exempt

16

all post-arraignment misdemeanor arrestees from being strip

searched — which is still the most effective method of de-

tecting the entry of drugs, weapons and other contraband into

a correctional institution. This means that “jail” systems like

the NYCDOC become less safe for all concerned. As was

pointed out by Circuit Judge Cabranes, the “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.” Shain, 273 F.3d at 75 (Cabranes, J., dissenting).

This point has been driven home in two post-Shain District

Court decisions which go far beyond what this Court’s

jurisprudence should permit. In Dodge v. County of Orange,

209 F.R.D. 65, 2002 U.S. Dist. Lexis 13374, No. 02 Civ. 769

(S.D.N.Y. July 24, 2002) the practical impact of Shain is

made clear by granting a preliminary injunction against the

rigorous strip search procedure employed by the Orange

County Correctional Facility. The procedure struck down in

Dodge was developed only after reviewing the procedures

being used in New York and New Jersey, as well as Second

Circuit case law. The policy permitted strip searches under

ten particular circumstances. Jd. at 67.° Ultimately, the Dis-

trict Court Judge held that none of the factors which triggered

the strip-search procedure amounted to individualized rea-

sonable suspicion, and thus the policy ran afoul of the Fourth

Amendment. In the even more recent case also stemming

from Orange County, a Federal District Court Judge extended

Shain to apply to not only those charged with misdemeanors,

but felonies as well. Murcia v. County of Orange, 2002 WL

> a) committed sentenced inmate/weekenders; b) committed probation/

parole violators; c) weapons or narcotics offenses; d) known gang af-

filiation; e) prior or current escape charges; f) committed for a felony;

g) prior or current contraband charges; h) known history of contraband

charges; i) metal detector/BOSS chair activation; j) inmate appears to be

under the influence of drugs/alcohol. Jd. at 65.

———

Faenraeeeeerreeererercrr e

17

31245264 (S.D.N.Y. Oct. 4, 2002)(No. 00 CIV. 1325). These

decisions have boot-strapped the impermissible “jail/prison”

distinction made in Shain, and turn the necessarily deferential

Bell jurisprudence of this Court on its head.

As is illustrated by these recent decisions, the Circuit

Court has conceptually grouped those in the custody of the

NCCC or NYCDOC (who have perforce been seen both by a

prosecutor and Judge) with those cases where a police officer

has erroneously decided that a strip-search incident to an

arrest was warranted. See, Mary Beth G. v. City of Chicago,

723 F.2d 1263, 1271 n. 7 (7th Cir. 1983) (strip or body cavity

searches incident to arrest are only constitutional where there.

is a reasonable belief that arrestee is concealing contraband);

cf. Swain v. Spinney, 117 F.3d 1, 5 (ist Cir. 1997) (strip and

visual body cavity search must be justified by at least a rea-

sonable suspicion that the arrestee is concealing contraband

or weapons); Kaufman y. Rivera, 173 F.3d 844 (2d Cir. 1999)

(arresting officer cannot perform a strip search of an arrestee

charged with a misdemeanor offense “unless the [official

has] a reasonable suspicion that the arrestee is concealing

weapons or other contraband based on the crime charged, the

particular characteristics of the arrestee, and/or the circum-

Stances of the arrest.”)

Arrestee cases such as Mary Beth G. are categorically

different than those where someone is about to be introduced

into the general population of a potentially large and complex

correctional setting. The Circuit Court has essentially undone

the thirty years of this Court’s jurisprudence since Bell y.

Wolfish where the privacy expectation of inmates was found

to be significantly different than those of people walking

freely in civil society — and certainly different than mere

arrestees. Holding corrections personnel to such a standard

not only runs counter to that level of inmate privacy pre-

viously found appropriate by this Court, but also endangers

18

the inmates who are the intended recipients of the protections

afforded by searching new admittees to jail and prison sys-

tems.

CONCLUSION

The petition for certiorari should be granted.

Respectfully submitted,

RICHARD J. KOEHLER

MARC ALAIN STEIER

KOEHLER & ISAACS, LLP

Attorneys for Amicus Curiae

Correction Officers’ Benevolent

Association

120 Broadway — 29" Floor

New York, New York 10271

(917) 551-1300