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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_0535%3A6

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2002
- **Citation:** 537 U.S. 1083

## Text

MOTION FILED ( 2 )

, Ne
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.

li

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).

4

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).

a

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

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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,

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

(516) 742-6590

JAMES G. FRANKIE,
of Counsel.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_0535%3A6. Public record. Not legal advice.