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

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MOTION FILED ( 2 )

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NUV 2002 No. 02-541

3u the

Supreme Court of the United States

+ QP e- :

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 _ ~

MOTION FOR LEAVE TO FILE AS AMICUS

CURIAE AND BRIEF OF AMICUS CURIAE

CORRECTION CAPTAINS’ ASSOCIATION

OF THE CITY OF NEW YORK IN SUPPORT

OF PETITION FOR A WRIT OF CERTIORARI

FRANKIE & GENTILE, P.C.

Attorneys for Amicus Curiae

Correction Captains’ Association

of the City of New York

1565 Franklin Avenue, Suite 105

Mineola, New York 11501

JAMESG. FRANKIE, — (516) 742-6590

of Counsel.

November 1, 2002

MOTION FOR LEAVE TO FILE BRIEF

AMICUS CURIAE

Petitioners have consented to the filing of this Amicus

Curiae brief in support of the Petition. A copy of their con-

sent letter dated September 19, 2002 has been forwarded

with the brief. The consent of the Respondent was er,

but not granted.

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES. ...00...<cccccsvcssccccccscvccccssesees ili

INTERESTS OF AMICUS CURIAE...........:scsseseesseeeees 1

SUMMARY OF THE ARGUMENT............::scesseseeees 2

ARGUMENT

POINT I

THE STRIP SEARCH OF NEW ADMISSION

INMATES UPON THEIR ENTRY INTO THE

CORRECTIONAL FACILITY IS NECESSARY TO

MAINTAIN THE SAFETY AND SECURITY OF

THE FACILITY AND IS CONSTITUTIONAL... 3

IIS secsconaesvassssnesvecseoviqeacesesiovecsosossovevenseesnees 9

ill

TABLE OF AUTHORITIES

Page

Cases:

Bell v. Wolfish, 421 U.S. 546 (1979)........ccccccesseseeseeees 3, 7,8

Block v. Rutherford, 468 U.S. 576 (1984)..........ccsc0000- 6, 7

Dobrowolskyj v. Jefferson Co., 823 F.2d 955

gf (tire 6

Fuller v. M.G. Jewelry, 950 F.2d 1437

Ce intitle enaedinis

Logan v. Shealy, 660 F.3d 1007 (4™ Cir. 1981)........... 6

Mary Beth G. v. City of Chicago, 723 F.2d 1262

FP Si itaieicicceiihcibrerniaddaiaeanct 6

Pell v. Procunier, 417 U.S. 817 (1974).......scessssssecessene 3

Price v. Johnson, 334 U.S. 266 (1948) ..........cccsscccsceeee 3

Turner v. Safley, 482 U.S. 78 (1987).........:scessssseeseesees 6

Walsh v. Franco, 849 F.2d 66 (2d Cir. 1988) .......... 4, 5, 6,7

Weber v. Dell, F. 2d 796 (2d Cir. 1986).............0000+ 4,5, 6,7

Constitutional Provisions:

Ses Seg: SU TG vs ckicititcddiisascabincisubicneattineticedl 8

Statutes:

New York State Penal Law Section 70.15(1)............... 4n.2

New York State Penal Law Section 70.15(2)secsssssssss0 4n.2

New York State Penal Law Section 70.15(3)............... 4n.2

INTERESTS OF AMICUS CURIAE

The Correction Captains’ Association of the City of New

York, hereinafter referred to as (“CCA”) respectfully submits

this brief in support of the Petition for Certiorari in this

matter.'

The CCA is the certified collective bargaining unit for

supervisors in the rank of Captain in the New York City De-

partment of Correction. There are approximately nine hundred

fifty (950) members in the CCA.

The New York City Department of Correction, hereinafter

(DOC), provides for the care, custody and control of inmates

housed in its facilities. The vast majority of these inmates

are detainees awaiting disposition of criminal charges in the

Courts of the five counties of New York City ie., Kings,

Bronx, Richmond, New York and Queens. However, DOC

also houses inmates sentenced to terms of incarceration of

one year or less. Additionally, the DOC houses inmates

pursuant to contract with the State of New York and houses

inmates awaiting transport to other jurisdictions both State

and Federal for resolution of their cases in those jurisdictions.

Correction Captains as first line supervisors are respon-

sible for insuring the proper care, custody and control of

all inmates housed in DOC facilities. In addition to insuring

the safety of all inmates, Captains (CCA) are also responsible

for the safety of visitors and staff. CCA members are sued

and/or disciplined under a failure to supervise theory when

inmates injure visitors, staff, each other or themselves.

Modification of the Department’s policy to prohibit the

strip search of new admissions charged with misdemeanors

" Pursuant to Rule 37.6 of this Court, the amicus curiae represents that

counsel for amicus authored this brief in its entirety and that no person or

entity other than the amicus and its representatives made any monetary

contribution to the preparation or submission of this brief.

absent reasonable suspicion that the inmate is carrying

contraband, (e.g., weapons or drugs), inhibits the safe, pru-

dent and effective administration of Department facilities

and exposes inmates, visitors and staff to unnecessary, real

and heightened dangers. Moreover, CCA members will be

subject to discipline and potential civil liability. Often, said

liability will be premised upon a failure to detect and/or

prevent the possession of contraband by inmates.

Therefore, the CCA urges this Court to reverse the judg-

ment of the United States Court.of Appeals for the Second

Circuit which struck down the policy of the Nassau County

Correctional Center which provided for routine strip search-

ing of all new admission inmates as a violation of the Fourth

Amendment unless the correctional center could articulate

reasonable suspicion that the inmate was concealing contra-

band (e.g., weapons or drugs).

SUMMARY OF THE ARGUMENT

The practice of strip searching new admission inmates,

who have been remanded to the custody of the Department of

Correction, serves a legitimate governmental security concern.

The policy constitutes an effective and necessary method of

detecting and deterring the introduction of contraband into

correctional facilities. It is a reasonable and rational practice

which is presented in a correctional setting and is constitu-

tional under the circumstances.

Any requirement that reasonable suspicion be established

before new admission inmates charged with non-felony of-

fenses could be strip searched upon their remand to custody

unnecessarily interferes in the proper and efficient operation

of the correctional facility. Such a requirement undermines

the safety and security of the facility and exposes staff,

visitors and inmates to unjustifiable dangers. Moreover, any

claimed justification for distinguishing between felony and

non-felony new admissions inmates as it relates to their

stnp searcit apor emtry’ ants dhe aarentinnal -facility .is

unsound and not warranted by the Constitution. Additionally,

an attempt to distinguish between “prisons” and “jails”, espe-

cially in an urban setting such as New York is artificial,

untenable and fails to recognize the realities of an urban

correctional setting.

Deference to the expertise of correctional authorities in

providing for the safety and security of staff, visitors and

inmates should be given. The policy of strip searching all

new admissions inmates represents a legitimate penalogical

interest and is Constitutionally sound.

ARGUMENT

POINT!

S OF NEW ADMISSION

INMATES UPON THEIR ENTRY INTO THE

C fe) ARY

TO MAINT AND SE

OF THE FACILITY AND IS CONSTITUTIONAL

Simply because prison inmates retain certain constitutional

rights does not preclude these rights from being subject

to reduction and diminution. Lawful incarceration brings

limitations of rights and privileges justified under_our penal

system, Bell v. Wolfish, 421 U.S. 520, 546 (1979) Price v.

Johnson, 334 U.S. 266, 285 (1948).

These constitutional limitations are justified by consider-

ations and circumstances underlying the legitimate policies

of the correctional facility. And, while Courts might disagree

with certain aspects of the operation of the correctional

facility, a Court should not substitute its judgment for that

of the administration experts under whose care, custody

and control these inmates have been lawfully committed,

Bell v. Wolfish, supra, Price v. Johnson, supra, Pell v. Pro-

cunier, 417 U.S. 817, 822 (1974).

Plaintiff herein was arrested by Nassau County Police and

charged with Harassment in the first degree, a Class B mis-

demeanor.” The police had been called by plaintiff's wife to

the couple’s residence pursuant to a domestic violence call.

Plaintiff was arrested and held overnight at Nassau County

Police Headquarters. The following moring plaintiff was

transported to the Nassau County Family Court where he was

arraigned on the family offense petition filed by his wife

and was remanded to the Nassau County Correctional Center

(NCCC). Upon his arrival and admission to the NCCC,

plaintiff was required to submit to a visual strip search which

included the removal of all of his clothing, the looking into

his ears, mouth, hair, his lifting of his arms, and genitalia

as well as his bending over and spreading his buttocks to

facilitate visual inspection of his rectum for contraband.

Plaintiff challenges the NCCC policy of visual strip search

of all new admissions arguing that prisoners charged with

non-felony offenses are immune from such searches upon

their admission to the NCCC absent reasonable suspicion

that they are secreting contraband in the form of weapons

or drugs.

The United States District Court and the Court of Appeals,

Second Circuit agreed with plaintiff relying on the holdings

in Walsh v. Franco, 849 F.2d 66 (2d Cir. 1988) and Weber v.

Dell, 804 F.2d 796 (2d Cir. 1986). The CCA respectfully

submits that the Courts’ reliance upon these cases in reaching

the decision herein was misplaced.

Walsh and Weber, involved unfortunate facts and circum-

stances, but involve scenarios which have no application to

? New York State Penal Law Section 70.15(2) provides that the sentence

for a Class B misdemeanor shall not exceed three months. The sentence

for Class A misdemeanors shall not exceed one year. The sentence for

unclassified misdemeanors shall be in accordance with the term fixed

by that specific statute. See Penal Law Section 70.15(1) and Section

70.15(3).

the instant matter. In Weber v. Dell, supra, the defendant’s

son was the victim of a crime (criminal mischief damage

to his automobile). Family and friends were gathered at the

defendant’s home for a party following a wedding reception.

The police were called and requested to respond to the

residence in order that a report could be filed, After a pro-

tracted period of time, the police had yet to appear at the

defendant’s residence. The defendant called again complain-

ing about the lack of police response. In the conversation

defendant was told that the police would only respond im-

mediately if there was a shooting. Defendant responded that

there was a shooting and demanded an immediate police

response. The police responded and arrested defendant for

calling in a false police report, i.e., that there had been a

shooting. Defendant was arrested, handcuffed and removed

from her residence by police in the presence of the wedding

guests. The defendant was taken to the County jail where

she was strip searched and thereafter released to appear for

arraignment at a later date.

In Walsh vy. Franco, supra, the defendant was challenging

the legality of several parking tickets he had received.

Through a mailing and clerical error, the incorrect court date

was mailed to the defendant. The defendant, through no fault

on his part, did not appear in court to answer the parking

tickets and a warrant was issued for his arrest. The defendant

was arrested and strip searched upon his admission to the

County jail. Defendant was forced to undergo the strip search

admissions procedure even though bail had already been

posted on his behalf. Upon completion of the admissions

process defendant was released on the $100 station house

bail that had already been posted.

Both Weber and Walsh involved arrestees held in pre-

arraignment detention. There had been no judicial determin-

ation concerning the issue of probable cause. Moreover, the

defendants in Weber and Walsh were released after the police

processing stage and directed to return to Court at a later

date. By contrast, the plaintiff in the instant matter was

arraigned in Court and was remanded to the custody of the

Nassau County Sheriff's Department at the Nassau County

Correctional Center. Unlike Weber and Walsh who were strip

searched at the police processing stage; the strip search of

Shain, the plaintiff herein, was conducted after his arraign-

ment in Court, remand to the Nassau County Correctional

Center and upon his admission to the general jail population.

See, Fuller v. M.G. Jewelry, 950 F.2d 1437, 1448 (9" Cir.,

1990); Dobrowolskyj v. Jefferson Co., 823 F.2d 955, 958 (6™

Cir. 1989); Mary Beth G. v. City of Chicago, 723 F.2d 1262,

1272 (7" Cir. 1983); Logan v. Shealy, 660 F.2d 1007 (4 Cir.

1981).

The Court of Appeals declined to follow this Court’s hold-

ing in Turner v. Safley, 482 U.S. 78 (1987) which deferred to

the expertise of correctional authorities in the day to day

management of correctional facilities. In declining to apply

Turner, the Court of Appeals created an unworkable distinc-

tion between “jails” and “prisons”. The realities of the urban

correctional facility (jail) including but not limited to the

volume, contractual agreements to house State sentenced

prisoners and the detaining of prisoners for other State and

Federal authorities renders such a distinction untenable.

This Court in Block v. Rutherford, 468 U.S. 576 (1984)

noted that the failure of a defendant to obtain release on

bail or personal recognizance was a significant factor bearing

on security measures needed for the proper administration

of a detention facility. When one considers the Court’s

recognition of the relative ease with which one can obtain

release on bail or personal recognizance pending trial it

is submitted that the failure of a defendant charged with a

non-felony to obtain release should signal that there may

have been factors considered by the arraignment court that

render this individual a greater security risk rather than a

lesser one as argued by the plaintiff herein.

In addition to distinguishing the case at bar from the

plaintiffs in Walsh and Weber due to their pre-arraignment

detention status, it is respectfully submitted that the Court

erred in not. giving appropriate deference to correctional

administrators in determining what is needed to maintain

internal discipline and security.

This Court has upheld the strip search, including body

cavity search of detainees after contact visits with visitors

from outside the facility. This Court noted that “simply

because prison inmates retain certain constitutional rights

does not mean their rights are not subject to reduction and

diminution. Lawful incarceration brings limitations of rights

and privileges justified under our penal system” Bell v.

Wolfish, at 546. Additionally, a ban on contact visits was

determined to be constitutionally permissible and deference

to jail administrators was afforded in determining such a

policy to be needed and justified. Block v. Rutherford, supra.

In the case at bar, there are legitimate concerns that a

policy of permitting inmates charged with non-felony of-

fenses to enter the prison population withcut being “visually

strip searched” will lead to an increase in contraband in

the form of weapons and illegal drugs being introduced

into the facility and imperil the safety and security of the

facility, staff, visitors and inmates.

A policy of strip searching all new admissions is not only

an effective method of detecting and confiscating contra-

band; it is a deterrent. The fact that the number of inmates

caught attempting to smuggle contraband into the facility has

declined is a testament that a no exception policy concerning

search of all new admissions is a strong deterrent.

The requirement that reasonable suspicion exist before

new admission inmates charged with non-felony offenses

may be strip searched upon their entry into the prison popu-

lation is not required by the Constitution.

The Fourth Amendment to the United States Constitution,

guarantees the right to be free from unreasonable searches

and seizures. U.S. Const. Amend. [V. This Court had held

the blanket body cavity search of all inmates after contact

with outside visitors to be a reasonable exercise of prison

officials authority in determining how to provide the safety

and security of their institutions, Bell v. Wolfish, supra.

Inmates held after arraignment in the New York City Sys-

tem and in Nassau County, the case at bar, are not segregated

by offense charged when transported to the correctional

facility. Those charged with felonies and those charged with

lesser offenses are transported together. Concern that those

charged with non-felony offenses who will not be subject to

strip search as a matter of policy will be utilized to smuggle

contraband for themselves and others is real. The existence

of a “pecking order” among the inmate population is well

established. Predatory inmates may coerce or threaten the

weaker members of the inmate population who are charged

with misdemeanors into serving as “mules” to smuggle

contraband into a correctional facility. These inmates may do

so for a myriad reason including that they are threatened,

promised protection, promised payment of money or promised

the posting of bail.

Finally, it merits noting that in New York City as well as

in the case at bar (Nassau County), some inmates are held

on misdemeanor charges only to have warrants and/or new

arrests on more serious charges, felonies and violent felonies

lodged after their admission to the facility for conduct that

occurred prior thereto. The reality that these inmates will

have entered as misdemeanor new admissions immune from

the visual strip search policy is further evidence of the need

that all new admissions be visually strip searched upon their

entry into the correctional facility and that the distinction

ae ea a aa

between felony and non-felony inmates with respect to the

strip search policy is not practical.

Accordingly, the decision of the Court below should be

reversed.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,