Opposition Brief — Nassau County, New York v. Shain

No. 02-541 | 4 ?

In the CLERK

Supreme Court of the Anited States

Nassau Counry, ET AL.,

Petitioners,

V.

Ray E. SHAIN,

Respondent.

On Petition For Writ Or CERTIORARI

To Tue Unitep States Court Or APPEALS

For Tue SEconp Circuit

RESPONDENT'S BRIEF IN OPPOSITION

Ropert L. HERsst

Counsel of Record

SPENCER B. FREEDMAN

BeELpock, LEVINE AND

HorrMAN, LLP

99 PARK AVENUE _-

_ New York, NY 10016.

(212) 490-0400

Counsel for Respondent

Ray E. Shain

BECKER GALLAGHER LEGAL PUBLISHING, INC.,

CINCINNATI, OHIO 800-890-5001

op X

CORPORATE DISCLOSURE STATEMENT

Pursuant to Rule 29.6 of the Supreme Court Rules,

Respondent, Ray E. Shain, states that he has no corporate

affiliations.

TABLE OF CONTENTS

Corporate Meclowure SAMMI ww ee i

ae ae a he ean ee ek eee ii

Tee ae A ok ka ho ea eee eee lil

Counterstatement of the Case .................. 1

Reasons for Denying the Writ .............. tT.

A. There is no Circuit Conflict in the Strip

me GI. sv ik we eee 3

B. There is no Conflict between Turner

and Bell and its Strip Search Circuit

POD. os sex FeV eee 9

COONS 5. gk. vs 6 0 SO ee eee 14

ii

TABLE OF AUTHORITIES

CASES

Bell v. Wolfish,

441 U.S. 520 (1979)... . 3, 4, 8, 9, 10, 11, 12, 13

Block v. Rutherford, 468 U.S. 576 (1984) .....---- 9

Chapman v. Nichols,

989 F.2d 393 (10" Cir. 1993) ......- 5, 6, 8, 12

Covino v. Partissi, 967 F.2d 73 (2™ Cir. 1992) .....- 11

Friend v. Kolodzieczak, 923 F.2d 126 (9 Cir. 1990) .. 10

Giles v. Ackerman, 746 F.2d 614 (9" Cir. 1984) ..... 8

Hause v. Vaught, 993 F.2d 1079 (4 Cir. 1993),

cert. denied, 510 U.S. 1049 (1994) ......--- 11

Hodgers-Durgin v. De La Vina,

199 F.3d 1037 (9" Cir. 1999) ......------ 8-9

Jones v. Edwards, 770 F.2d 739 (8" Cir. 1985) ...... 5

Jones v. North Carolina Prisoners’ Union,

A433 U.S. 11D CISTT) 0 ww ieee eons )

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

cert. denied, 455 U.S. 942 (1982) ......----: 5,9

Masters v. Crouch, 872 F.2d 1248 (6" Cir.),

cert denied, 493 U.S. 977 (1989) .....---- S$. i

ill

Mary Beth G. v. City of Chicago,

723 F.2d 1263 (7° Cir. 1983) ........... 5, 6, 8

Mauro v. Arapaio,

188 F.3d 1054 (9" Cir. 1999) (en banc),

cert. denied, 529 U.S. 1018 (2000) ......... 11

O’Lone v. Shabazz, 482 U.S. 342 (1987) .......... 10

Pell v. Procunier, 417 U.S. 817 (1974) ........... 9

Roberts v. Rhode Island,

aa9 F358 167 (3° Cir. F001)... ww es 4,6, 7, 12

Sarnicola v. County of Westchester, 2002 WL 31408882

GE.EIt. 1, SOUR Boy BO 8 oc eee ees 4

Schmerber v. California, 384 U.S. 757 (1966) ....... 5

Security and Law Enforcement Employees v. Carey,

perp & foie og & A. | rear 5

Siddiqi v. Leak, 880 F.2d 904 (7" Cir. 1989) ....... 10

Stewart v. Lubbock County, 767 F.2d 153 (5" Cir. 1985),

cert. denied, 475 U.S. 1066 (1986) ......... 5

Thompson v. City of Los Angeles,

885 F.2d 1439 (9" Cir. 1989)............. 12

Thornburgh v. Abbott, 490 U.S. 401 (1989) ........ 10

Turner v. Safley,

482 U.S. 78 (1987) ....... 4,9, 10, 11, 12, 13

iv

Varrone v. Bilotti, 123 F.3d 75 (2d Cir. 1997) ...... 5

Ward v. County of San Diego,

791 F.2d 1329 (9" Cir. 1986),

cert. denied, 483 U.S. 1020 (1987) ....... 5, 1l

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

cert. denied sub nom County of Monroe v. Weber,

483 U.S. 1020 (1987) ....... 4,6, 9, 10, 11, 13

Wilson v. Jones, 251 F.3d 1340 (11" Cir. 2001) . 4,5, 12

CONSTITUTIONAL PROVISIONS

U.S. Constitution First Amendment .......... 10, 11

U.S. Constitution Fourth Amendment

divas bet bee ae eee 3, 5, 6, 10, 11, 12, 13

COUNTERSTATEMENT OF THE CASE

The salient facts are set forth in the Second Circuit’s

opinion below. (A. 11-30).'

On July 30, 1995, Shain, a practicing attorney, was

admitted to the Nassau County Correctional Center [“NCCC”

or “Jail”] and strip searched pursuant to a blanket policy that

required any person admitted to the Jail to be subjected to a

strip search and visual body cavity inspection as a matter of

course. (R. 595). Shain was required to strip naked. (R.

596-99). Corrections Officer Dantunono looked in Shain’s

ears, his mouth, his hair, and his underarms, and then made

him turn around, bend over and spread his buttocks apart with

his hands to facilitate a visual inspection of his rectum. (R.

596-99; 761). The strip search procedure also included an

inspection of Shain’s frontal genitalia - the penis, the

scrotum, and the testicles - which he was required to lift up.

(R. 764; 792-93).

Shain’s strip search was performed in a large room,

without privacy, in the sight of other corrections officers and

prisoners. (R. 608). Shain was to be held at the Jail

overnight only, to be produced in Family Court the next

morning. Prior to leaving the Jail, Shain was subjected to

another strip search and visual body cavity inspection.

Because the NCCC’s health quarantine policy required new

admittees to be isolated from the general jail population for 72

hours after admission, Shain was never admitted to the

' “A.” is a reference to the Appendix annexed to the Petition for

a Writ of Certiorari. “R.” is a reference to the record citation in

the Appendix filed in the Second Circuit.

1

general jail population. Upon his appearance in Family

Court, he was released from custody.

At the time he was strip-searched, no grounds existed

to suspect that Shain was concealing weapons or contraband,

let alone concealing them under his garments. After

reviewing Shain’s jail file, Lt. Considine acknowledged that

there was no “particularized suspicion that Mr. Shain had

contraband on him.” (R. 806). Petitioners knew only that

Shain was a civil detainee being held overnight, to be

produced in Family Court the following morning. The verbal

harassment family offense for which he had been arrested and

detained was not a crime of violence or one involving drugs,

weapons or other contraband. (R. 102-03). Shain had never

previously been arrested. When he was arrested here, his

pockets were emptied and a small combination pocketknife

(also containing a bottle opener and screwdriver) was

removed and left at his house. (R. 542 5, 585). The

pocketknife, however, was not considered to be a weapon,

and its presence was neither recorded in police paperwork nor

communicated to Jail officials. (R. 103). Shain did not

physically resist arrest. (R. 583-85).

From the point of his arrest until his arrival at the Jail

where he was strip-searched, Shain was never out of the

custody of law enforcement officers, even at the hospital to

which he had been transported for evaluation and treatment of

back spasms. Although Shain was in a holding cell with other

arrestees for some time before his court appearance,

correctional procedure at the courthouse insured that Shain

and his cellmates were all thoroughly patted down and

searched prior to entry into the cell. Indeed, for almost all of

the 27 hours he was in custody prior to being strip searched,

Shain was in handcuffs in a cell at the precinct, the hospital or

the courthouse. He had no contact visits with anyone.

2

In short, the strip and body cavity search to which

Shain was subjected was entirely unsupported by reasonable

suspicion.

REASONS FOR DENYING THE WRIT

Two reasons for denying the writ stand out among

many: First, in cases concerning blanket policies mandating

strip searches of all non-felony arrestees upon admission to

Jail facilities, there is no conflict among the circuits. Every

circuit court to have considered the matter has ruled such

blanket policies unconstitutional, requiring reasonable

Suspicion to support such strip searches. Significantly,

petitioners do not cite any strip search cases to support their

suggestion of a conflict among the Circuits.

Second, in the 16 years since the Second Circuit first

held that strip searches of persons arrested on misdemeanor

and petty offense charges must be justified by particularized

reasonable suspicion of concealed weapons or contraband,

petitioners and other jail administrators have failed to

demonstrate to any federal appellate court that blanket strip

searches of all admittees are necessary to provide security at

their institutions, particularly today, when magnetometers,

B.O.S.S. chairs, and other less intrusive means are easily

available. The record in the case at bar is no exception, for

it demonstrates how non-essential strip searching has been in

providing security at the NCCC.

A. There is no Circui nflict in the

Strip Search Context

The Fourth Amendment prohibits “unreasonable”

searches and seizures. In Bell v. Wolfish, 441 U.S. 520

(1979), this Court ruled that Fourth Amendment

3

reasonableness analysis “requires a balancing of the need for

a particular search against the invasion of personal rights that

the search entails.” Reasonableness turns on (1) the scope of

the particular intrusion, (2) the manner in which the search is

conducted, (3) the justification for initiating the search and (4)

the place in which the search is conducted. 441 U.S. at 559.

In 1986, the Second Circuit applied Bell to hold that

a strip search of a misdemeanor arrestee is unlawful unless

there is “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

circumstances of the arrest.” Weber v. Dell, 804 F.2d 796,

802 (2d Cir. 1986), cert. denied sub nom County of Monroe

v. Weber, 483 U.S. 1020 (1987). As the Second Circuit

noted below, “[w]e also rejected defendant’s request for

qualified immunity [in Weber] because all the circuits that had

addressed similar policies had found them to be

unconstitutional and because we long had stressed the

intrusive nature of body cavity searches. See 804 F.2d at

803.” (A. 18).

Sixteen years later, and 15 years after Turner v.

Safley, 482 U.S. 78 (1987), on which petitioners so heavily

rely here, that same observation remains true. “For more

than two decades, courts have specifically and repeatedly

recognized the importance of guarding against unreasonable

strip searches, in view of the degrading nature of this

particular invasion of privacy.” Sarnicola v. County of

Westchester, 2002 WL 31408882, *9 (S.D.N.Y. October 23,

2002). The Second Circuit’s decision below is simply one in

a long and unanimous line of cases that, relying on Bell, have

struck down blanket strip search policies like that here, both

before and after Turner. See, e.g., Wilson v. Jones, 251 F.3d

1340 (11" Cir. 2001); Roberts v. Rhode Island, 239 F.3d 107

4

(1* Cir. 2001); Chapman v. Nichols, 989 F.2d 393 (10" Cir.

1993); Masters v. Crouch, 872 F.2d 1248 (6" Cir.), cert

denied, 493 U.S. 977 (1989); Ward v. County of San Diego,

791 F.2d 1329 (9" Cir. 1986), cert. denied, 483 U.S. 1020

(1987); Jones v. Edwards, 770 F.2d 739 (8" Cir. 1985);

Stewart v. Lubbock County, 767 F.2d 153 (5™ Cir. 1985),

cert. denied, 475 U.S. 1066 (1986); Mary Beth G. v. City of

Chicago, 723 F.2d 1263 (7" Cir. 1983); Logan v. Shealy, 660

F.2d 1007 (4" Cir. 1981), cert. denied, 455 U.S. 942 (1982).

“Every circuit court” which has considered strip

searches of plaintiffs arrested for minor violations who were

strip searched solely because a blanket policy required such

searches of all detainees “has concluded that a search under

these circumstances is unconstitutional.” Chapman, 989 F.2d

at 395 (citations omitted).? “[N]o published state or federal

case since Schmerber v. California, 384 U.S. 757 (1966) (test

of reasonableness under fourth amendment requires a

balancing of the need for particular search against the invasion

of personal rights the search entails) upholds the

constitutionality of a blanket policy of strip searches of minor

offense arrestees.” Ward, 791 F.2d at 1332; see also Wilson,

251 F.3d at 1343-44 (citing cases).

This judicial consensus for more than 30 years is based

on several fundamental principles. The first and most

important is the widely-shared perception that visual body

cavity searches are different from other searches. They

2 In related contexts, reasonable suspicion is required before

correctional facilities may strip search prison visitors or corrections

officers. See, e.g., Varrone v. Bilotti, 123 F.3d 75 (2d Cir. 1997)

(visitors); Security and Law Enforcement Employees v. Carey, 737

F.2d 187 (2d Cir. 1984) (corrections officers).

5

impinge much more seriously upon Fourth Amendment values

because they are a “severe if not gross interference with a

person’s privacy.” Roberts, 239 F.3d at 110. They are

“demeaning, dehumanizing, undignified, humiliating,

terrifying, unpleasant, embarrassing, repulsive, signifying

degradation and submission.” Mary Beth G., 723 F.2d at

1272. “The experience of disrobing and exposing one’s self

for visual inspection by a stranger clothed with the uniform

and authority of the state, in an enclosed room inside a jail,

can only be seen as thoroughly degrading and frightening.

Moreover the imposition of such a search upon an individual

detained for a lesser offense is quite likely to take that person

by surprise, thereby exacerbating the terrifying quality of the

event.” Chapman, 989 F.2d at 396.

Second, those arrested and detained for misdemeanor

and violation level offenses are not only less likely to be

dangerous but, like those arrested for offenses having nothing

to do with physical violence, weapons or drugs, are less likely

to be concealing weapons or contraband under their clothing.

Roberts, 239 F.3d at 111-12. Because of the “essentially

unplanned nature of an arrest and subsequent incarceration,”

it is “far less likely that smuggling of contraband will occur

subsequent to an arrest (when the detainee is normally in

handcuffed custody) than during a contact visit that may have

been arranged solely for the purpose of introducing

contraband[.]” Roberts, 239 F.3d at 111.

Third, because of technological advances like

magnetometers and other devices, corrections officials are

now expected to “be able to detect contraband on the person

of a detainee without the need for a body cavity inspection.”

Roberts, 239 F.3d at 111. Indeed, in all the years since

Weber, no prison administrator has been able to demonstrate

in any reported case of which Respondent is aware that

5 6

blanket strip searching upon admission to a municipal or

county jail facility was either necessary or effective in

preventing contraband from being introduced to such

facilities. See, e.g., Roberts, 239 F.3d at 112 (“close

examination of [the] record indicates that a body cavity search

was (with one possible exception) entirely unnecessary to

discover contraband found during search”).

The record below also demonstrates how ineffective

and unnecessary blanket strip searches and body cavity

inspections have been to the maintenance of security at the

NCCC. Only one officer per shift strip-searched all new

inmates upon their admission to the Jail. In the two years that

Corrections Officer Dantunono conducted these strip

searches, he never found any weapons or contraband, and he

never heard of any weapons or contraband recovered as a

result of such strip-searching by any other corrections officers

at the Jail. (R. 769; 773-74). Lt. Considine, the supervisor

who would receive all reports of weapons or contraband

found in a strip search, could not recall one instance in the

year before he testified of receiving a report of contraband

discovered in a strip search of any person newly-admitted to

the Jail. (R. 799-800).

In response to Shain’s request for NCCC

documentation on strip searches that had turned up weapons

or contraband from 1993 to 1998 -- a period during which

there were approximately 75,000 strip searches of new

admissions (R. 795-96) -- petitioners provided documents on

only 16 strip searches conducted on new detainees admitted to

the NCCC (R. 343-493; SA7-43).> Only three of those

searches yielded weapons or contraband from the admittee’s

3 “SA” refers to the Supplemental Appendix in the Second Circuit.

7

body or body cavity, and in those three cases there was a drug

or felony history that might have justified a strip search based

on reasonable suspicion. (R. 354-72, R 391-97, R. 398-413).

In the other 13 searches, the contraband was found in or on

the shoes or outer clothing, and could therefore have been

found by a “pat down” or “clothing” search only. (R. 343-

493). In other words, petitioners could not point to even one

case where a strip search performed without colorable

reasonable suspicion was required to uncover a weapon or

other contraband from a body or body cavity. There was also

no overcrowding at the NCCC when Shain was strip searched

in 1995, and for many years prior thereto. (R. 724-25).

Thus, this record is utterly devoid of any factual

support for petitioners’ incendiary assertion that the decision

below “undermines the safety of corrections officers and

inmates” of this or any other county jail or correctional

facility. (Petition, at 2). Nor is there one iota of support for

the proposition that “strip searches remain the most effective

method for detecting contraband,” or “are an indispensable

tool for maintaining a secure prison environment.” (Petition,

at 16).

Accordingly, while the need to assure jail security is

“a legitimate and substantial concern,” blanket strip search

policies bear “an insubstantial relationship to security needs

so that, when balanced against” the intrusion of privacy

interests that strip searches necessarily entail, such searches

of non-felony arrestees and detainees upon admission to jail

facilities, conducted without reasonable suspicion, “cannot be

considered ‘reasonable’” under Bell’s balancing test.

Chapman, 989 F.2d at 396, quoting Mary Beth G., 723 F.2d

at 1273; see also Giles v. Ackerman, 746 F.2d 614, 617 (9"

Cir. 1984), overruled on other grounds, Hodgers-Durgin v.

De La Vina, 199 F.3d 1037 (9" Cir. 1999) (jail security needs

8

do not justify strip search absent reasonable suspicion that

individual detainee is carrying weapons or contraband);

Logan, 660 F.2d at 1013 (“An indiscriminate strip search

policy routinely applied to detainees such as Logan along with

all other detainees cannot be constitutionally justified simply

on the basis of administrative ease in attending to security

considerations. ”).

No Circuit has suggested otherwise, either before or

after Turner. There is thus no Circuit conflict, no reason to

disturb these settled principles of law, and no reason to grant

the writ.

B. There is no Conflict between Jurner

and Bell and its Strip Search Circuit

Progeny

Petitioners did not even cite Turner in the district court

or the Second Circuit. Here, however, they suggest that

Turner rather than Bell applies, requires reversal, and creates

a Circuit conflict which requires this Court’s intervention.

But Turner is not in conflict with Bell, nor with Weber

and the other Circuit Court cases applying Bell in the blanket

strip search policy context. Rather, Turner re-affirmed that

Bell and three other decisions of this Court* do not require

prison regulations to meet a heightened scrutiny standard, but

only that such regulations be reasonably related to legitimate

penological interests that must be balanced against the burden

* Block v. Rutherford, 468 U.S. 576 (1984); Jones v. North

Carolina Prisoners’ Union, 433 U.S. 119 (1977); Pell v.

Procunier, 417 U.S. 817 (1974).

9

placed by such regulations on constitutional rights. 482 U.S.

at 86-88.

This Court in Turner “identified several factors that

are relevant to, and that serve to channel the reasonableness

inquiry,” Thornburgh v. Abbott, 490 U.S. 401, 414 (1989),

including whether there is a valid, rational connection

between the regulation and a legitimate governmental interest

purportedly justifying it, and whether there are readily

available alternatives to the regulation and to exercise of the

constitutional right involved. 482 U.S. at 89-91. These

Turner factors have generally been applied in balancing prison

regulations against the constitutional rights of convicted

prisoners in state prisons rather than of pretrial detainees in

municipal and county jails, and in cases involving regulations

which impinge upon “affirmative” constitutional rights such

as the right to free exercise of religion or the right of access

to publications under the First Amendment, rather than upon

the Fourth Amendment’s right to be free from unreasonable

searches. See, e.g., Thornburgh (First Amendment challenge

to prison regulation restricting access to publications); O’Lone

v. Shabazz, 482 U.S. 342 (1987) (First Amendment challenge

to prison work regulations which prevented attendance at

religious services); Turner (First Amendment challenge to ban

on inmate-to-inmate correspondence).

The cases cited by petitioners to suggest a Circuit

conflict are all First Amendment cases and are therefore

distinguishable from the Fourth Amendment strip search

context in which Bell, Weber and Shain constitute links in an

unbroken chain of settled strip search jurisprudence. See

Petition, at 11-12, citing Siddigi v. Leak, 880 F.2d 904 (7"

Cir. 1989) (First Amendment challenge to policy that

infringed on Muslim inmates’ access to Jumu’ah services);

Friend v. Kolodzieczak, 923 F.2d ' 26 (9" Cir. 1990) (First

10

Amendment challenge to policy prohibiting inmates from

possessing rosaries and scapulars in their cells); Mauro v.

Arapaio, 188 F.3d 1054, 1058-62 (9" Cir. 1999) (en banc),

cert. denied, 529 U.S. 1018 (2000) (First Amendment

challenge to policy denying inmates access to sexually explicit

publications); and Hause v. Vaught, 993 F.2d 1079, 1083 (4"

Cir. 1993), cert. denied, 510 U.S. 1049 (1994) (First

Amendment challenge to policy prohibiting receipt of outside

publications by mail; court noted that both Turner and Bell

accorded the same standard of deference to prison

administrative policies).

No case in this Court has intimated that 7urner

overruled or undercut either Bell, which fashioned a

reasonableness balancing test for the specific Fourth

Amendment context with which it was concerned, or the

unanimous line of Circuit cases discussed above predicated on

Bell and ruling unconstitutional blanket strip search policies

like that here. Indeed, less than one month after Turner was

decided, this Court denied certiorari on the same day in two

such cases, Weber and Ward, without mentioning 7urner or

suggesting that it overruled or undercut either those cases or

Bell. Indeed, in the 15 years since Turner, virtually all of the

strip search cases in the Circuits have relied exclusively on

Bell and its balancing test and have not even mentioned

Turner.

In the few cases in which Turner has been cited in the

strip search context, it has been to reiterate the standard of

review set forth in Bell and, in some cases, to complement the

court’s application of the Bell balancing test where the court

has also found certain Turner factors to be useful. See, e.g.,

Covino v. Partissi, 967 F.2d 73, 77-78 (2d Cir. 1992) (“court

must balance the intrusiveness of the search on the

individual’s fourth amendment interests against its promotion

11

of legitimate governmental interests,” citing both Bell and

Turner); Thompson v. City of Los Angeles, 885 F.2d 1439,

1445-46 n. 4 (9" Cir. 1989) (standard set forth in Turner does

not prohibit application of the Bell test in the Fourth

Amendment context).

These cases only highlight how complementary, rather

than inconsistent, the standards and tests articulated in 7urner

are to Bell and Bell’s strip search Circuit progeny. Rather

than being in “direct conflict” as petitioners suggest (Petition,

at 13-16), all of these cases, including the Circuit cases

holding blanket strip search policies unconstitutional, reject

application of a heightened standard of review, and

“recognize ] the judiciary’s limited institutional competence

in the field of prison administration ... [without abandoning

the judicial duty to safeguard individual rights.” (Petition, at

13). All employ a balancing test which, based on similar

principles of limited judicial review, balances the burden

placed on constitutional rights against security concerns or

other legitimate interests of the administrators of prisons and

jails. Bell’s formulation of the balancing test is simply

designed more specifically to take into account the pertinent

considerations in Fourth Amendment challenges to strip

search policies in correctional facilities and continues to

provide the most useful framework in such cases, as is evident

by its unanimous employment by appellate courts in this

context post-7urner. See, e.g., Wilson v. Jones, supra;

Roberts v. Rhode Island, supra; Chapman v. Nichols, supra;

Masters v. Crouch, supra.

Finally, application of the specific Turner factors

would not help petitioners here. Their blanket strip search

policy would fail that test as it does the related but more

specific Bell test. On this record, there is not one shred of

evidence that indiscriminate strip searching is either necessary

12

or even effective in preventing the introduction of weapons or

contraband to the facility. Petitioners cannot point to one

strip search during all the years they maintained their

unlawful blanket policy that actually ferreted out weapons or

contraband on an admittee’s body or in one of his or her

bodily orifices in circumstances where reasonable suspicion

was absent. Petitioners have therefore failed to demonstrate

a valid, rational connection between their blanket strip search

policy and the security interest that they purport to advance to

justify it. 482 U.S. at 89-90.

There is also no explanation at all of why readily

available alternatives such as magnetometers, B.O.S.S.

chairs, careful “pat down” and “clothing” searches would not

provide adequate security, particularly when all admittees to

Jail are isolated from the general population for the first 72

hours of their admission. The ready availability of such

alternatives is evidence under 7urner that the blanket strip

search policy is unreasonable. /d. at 90-91. a

Moreover here, there are no alternative means of

protecting admittees’ privacy rights - once they are subjected

to a strip and visual body cavity search, they have irrevocably

lost their Fourth Amendment rights, and have been subjected

to the most degrading and extreme invasion of those rights,

which our settled strip search jurisprudence teaches merits

protection against unreasonable intrusion. /d. at 90.

In short, the outcome would be the same because

Turner is fundamentally compatible rather than inconsistent

with Bell, Weber and the other Circuit cases which, relying on

Bell, have consistently held blanket strip search jail policies

as applied to non-felony admittees unconstitutional. There is

no conflict, either in the caselaw or among the Circuits, and

13

nothing in this record or the decision of the court below,

which warrants this Court’s intervention.

CONCLUSION

The petition should be denied.

Respectfully submitted,

ROBERT L. HERBST

Counsel of Record

Beldock, Levine and Hoffman, LLP

i 99 Park Avenue

New York, New York 10016

(212) 490-0400

SPENCER B. FREEDMAN

of Counsel.

Attorneys for Respondent

14