# Amicus Curiae Brief — Nassau County, New York v. Shain > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_0535%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2002 - **Citation:** 537 U.S. 1083 ## Text / a No. 02-541 (4) “ 3 ome athe — ! Supreme Court of the Untted States ——e gb 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 =_—=—« 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_0535%3A4. Public record. Not legal advice.