Weber v. Dell, 804 F.2d 796 (2nd Cir. 11/06/1986)

[1] UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

[2] No. 86-7214

[3] 804 F.2d 796, 1986

[4] Decided: November 6, 1986.

[5] ANN WEBER AND GARY J. WEBER, PLAINTIFFS-APPELLANTS,
v.
ELIZABETH DELL, OFFICER JANSSEN REMBERT, INVESTIGATOR MICHAEL CIMINELLI, SGT. R. HARE, OFFICER SUE SHANNON, OFFICERS JOHN DOE, JANE DOE, AND OTHER UNIDENTIFIED POLICE OFFICERS, THE CITY OF ROCHESTER POLICE DEPARTMENT, THE CITY OF ROCHESTER AND THE COUNTY OF MONROE, AND ANDREW P. MELONI, MONROE COUNTY SHERIFF, DEFENDANTS-APPELLEES

[6] Appeal from a judgment of the United States District Court for the Western District of New York, Telesca, J.

[7] Stephen G. Schwarz, (Faraci, Guadagnino, Lange & Johns, of Counsel), for Appellants.

[8] Nira T. Kermisch, Assistant Monroe County Attorney, (Charles R. Valenza, Attorney, Charles H. Miller, III, Assistant Monroe County Attorney, of Counsel), for Appellees.

[9] Oakes, Meskill, and Mahoney, Circuit Judges.

[10] Author: Mahoney

[11] MAHONEY, Circuit Judge

[12] This case presents the constitutionality of a jail policy authorizing strip/body cavity searches of people arrested and booked into the jail, regardless of whether they are reasonably suspected of concealing contraband. Plaintiff Ann Weber, who was subjected to such a search after her arrest on misdemeanor charges, and her husband Gary Weber, who assertedly suffered personal injuries arising from his arrest on the same occasion, brought this action alleging state and federal claims against the City of Rochester, the County of Monroe (the "County"), several Rochester police officers, an employee of the Rochester Police Department, and the Monroe County Sheriff (the "Sheriff"). We consider*fn1 plaintiffs' appeal from the denial of their motion for partial summary judgment on the issue of the liability of the County and the Sheriff under 42 U.S.C. § 1983 for the search of Ann Weber, the dismissal of the complaint as to those defendants, and the grant of summary judgment in their favor. Because we conclude that the search violated Mrs. Weber's rights under the Fourth Amendment, we reverse the district court's decision and direct the entry of partial summary judgment in favor of appellant Ann Weber as to the liability of the County and the Sheriff under Section 1983 for the challenged strip/body cavity search.*fn2

[13] BACKGROUND

[14] The following rendition of the facts has been gleaned from the complaint, affidavits submitted below and transcripts of depositions conducted below, and may contain factual matters in dispute between the parties to this litigation.*fn3 No such matters preclude our summary disposition of the issues before us, however, since the County and the Sheriff concede that pursuant to jail policy a jail employee undertook a strip/body cavity search of Mrs. Weber after her arrest on misdemeanor charges in the absence of any ground other than her status as an arrested person for concluding that she was likely to be concealing contraband. The remainder of this strange story we include by way of background.

[15] On June 18, 1983, Ann and Gary Weber attended their daughter's wedding and reception, then hosted a party for some of the wedding guests in their home. The night of celebration must have lost some of its savor for the Webers even before any of the defendants appeared on the scene; in quest of cigarettes, in the early morning hours, the Webers' son left the party with a friend and was assaulted by a man wielding a baseball bat outside an all-night variety store. The son and his friend escaped bodily injury by repairing to their car, but they returned to the Webers' home with a battered vehicle, the assailant having smashed it repeatedly with the bat as they drove away. Upon being apprised by her son of the assault, Mrs. Weber called the Rochester Police Department and reported the incident to a dispatcher.

[16] Shortly thereafter, the Webers' son left with several other family members and guests to seek out his assailant. Approximately half an hour after she made the first report, Mrs. Weber called the Police Department a second time and asked what she needed to do to procure police assistance. The dispatcher who spoke with Mrs. Weber already knew about the incident, since she had taken the first call as well and had reported the attack as an episode of "malicious mischief." She allegedly told Mrs. Weber that emergency police assistance would arrive only if Mrs. Weber were to report a shooting. Mrs. Weber -- in an agitated state, we suppose -- complied. The dispatcher then informed the police that Mrs. Weber had reported a shooting, but that it was probably a false and illegal report.

[17] The police then began to arrive at the Webers' home. According to the plaintiffs, the police placed Mrs. Weber under arrest for a false report, whereupon she retreated into her home with the police in hot pursuit. Mr. Weber exchanged words with the officers, still more officers arrived, and all entered the Webers' home over Mr. Weber's protest. Mr. Weber was placed in a police car after suffering injuries, he alleges, at the hands of the officers.

[18] There ensued some movement of officers and Webers throughout the Weber home. The Webers claimed later that the officers had beat them without provocation; the officers claimed that the Webers had resisted arrest. In either event, the officers eventually carried Mrs. Weber out of her house and transported her, still protesting, still dressed in formal wedding attire, now encumbered with handcuffs, to the Monroe County Jail, where they charged her with the misdemeanor offenses of falsely reporting an incident and resisting arrest.

[19] After booking, Mrs. Weber was photographed and fingerprinted, then taken to a vacant cell. There the occurrences that gave rise to the issues before us took place. Pursuant to a Monroe County Jail policy providing for strip/body cavity searches of all arrestees, Mrs. Weber was required to remove all her clothing and to expose her body cavities for visual inspection. She won her release half an hour later, after her newly wed daughter arrived at the jail and posted bail. Mr. Weber had meanwhile been charged with obstruction of governmental administration and resisting arrest, then taken to a hospital and treated for wounds to his face.

[20] After trial and acquittal of all charges in Rochester City County, the Webers brought this action challenging inter alia the strip/body cavity search of Mrs. Weber, on the ground that jail employees had performed that search with no reasonable suspicion that Mrs. Weber was carrying weapons or other contraband, in violation of her rights under the Fourth Amendment.*fn4 The County and Sheriff moved for summary judgment. The County and moved for summary judgment. The Webers cross-moved for partial summary judgment against the County and the Sheriff on the issue of their liability under 42 U.S.C. § 1983 for the strip/body cavity search of Mrs. Weber. Not reaching the immunity or state law defenses raised by those defendants, the court below granted them summary judgment on the ground that the search of Mrs. Weber's person and body cavities did not violate her constitutional rights.

[21] We reverse.

[22] Discussion

[23] I. The Constitutionality of the Search Policy.

[24] According to the Sheriff, the jail employees conducted the search of Mrs. Weber pursuant to a Monroe County Jail policy calling for strip/body cavity searches of all arrested persons other than those placed in "holding cells," which are the cells in which arrestees are sometimes placed when their release on bail is imminent. In deciding that such a policy is constitutional, the district court held that "once a person becomes a prison inmate, he or she loses any Fourth Amendment protection from strip/body cavity searches if prison administrators have reasonable grounds for concluding that the inmate is in a position to be carrying contraband." Weber v. Dell, 630 F. Supp. 255, 259 (W.D.N.Y. 1986). It is not clear to us precisely how one analyzes whether a recently arrested inmate is in a position to be carrying contraband, as opposed to the likelihood, under the circumstances attending the arrest, that he or she is in fact carrying it; applying the former standard, in any event, the district court found a reasonable ground for subjecting Mrs. Weber to such searches in the Sheriff's "rough estimates" that seventy percent of all arrestees carry contraband. Id.

[25] In setting forth its analysis, the court expressly rejected holdings in other circuits requiring some reasonable suspicion, founded on the characteristics of the particular arrestee or arrest or the nature of the crime with which he or she is charged, to justify such searches. Instead, the court based its own analysis directly on its reading of Bell v. Wolfish,441 U.S. 520, 60 L. Ed. 2d 447, 99 S. Ct. 1861 (1979), and Block v. Rutherford, 468 U.S. 576, 82 L. Ed. 2d 438, 104 S. Ct. 3227 (1984). The court decided that Block added a "gloss" to Wolfish, and that together the cases stand for the proposition that "a district court should not substitute its view of the proper administration of a jail" for that of the jail officials. Weber v. Dell,630 F. Supp. at 258. *fn5 We must agree with Mrs. Weber that the district court misread Wolfish and read Block far too broadly. We accordingly adopt the reasonable suspicion standard that governs in other circuits, which we think Wolfish suggests and Block leaves undisturbed.

[26] We turn, then, to an examination of those cases. In the portion of Bell v. Wolfish that applies directly to the issue before us, the Supreme Court held that probable cause is not necessary to justify routine strip/body cavity searches of arraigned pre-trial detainees after those inmates have had contact with visitors from outside the institution. Instead, the "test of reasonableness" requires a "balancing of the need for the particular search against the invasion of personal rights that the search entails." Id. at 559. In the Wolfish setting, that test required the balancing of "the significant and legitimate security interests of the inmates." Id. at 560. In concluding that the security interests of the prison in undertaking strip/body cavity searches after " contact" visits outweighed the privacy interests of the inmates -- prisoners who had already been arraigned, had failed to make bail, and had presumably chosen to receive visitors and to enjoy physical contact with them -- the Court recognized the need for "mutual accommodation between institutional needs and objectives and the provisions of the Constitution that are of general application." Id. at 546 (quoting Wolff v. McDonnell,418 U.S. 539, 555, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974)). It did not, however, read out of the Constitution the provision of general application that a search be justified as reasonable under the circumstances. The imposition of a standard short of probable cause in determining the balance of interests at stake in Wolfish in no way dispensed with that requirement.

[27] Nor did Block v. Rutherford free prison officials from all Fourth Amendment constraints. A Fourteenth Amendment case, Block held that pre-trial detainees were not entitled as a matter of substantive due process to receive contact visits or to observe prison officials' searches of their cells. Block indeed emphasized the administrative and security needs of prisons and the propriety of deference to prison officials' decisions; it balanced those considerations, however, not against the interest in avoiding the intrusions of strip searches and body cavity searches, but against the alleged substantive due process rights to receive visits in prisons unimpeded by glass walls and to watch while officials engaged in concededly permissible searches of prison cells. Surely, any hypothetical "privacy"-type interest at stake in the latter contexts would be of a lower order than the interest in avoiding strip/body cavity searches. Furthermore, the Block holding expressly applies to detainees -- "by definition persons unable to meet bail," many of whom are "awaiting trial for serious, violent offenses" and "have prior criminal convictions."468 U.S. at 586.

[28] An examination of cases from other circuits supports our view that Block and Wolfish do not suggest, much less require, the result reached here. In finding the search of Mrs. Weber constitutional, the district court below discounted ten opinions from seven circuits that succeeded Wolfish and "refused to condone strip/body cavity searches of all arrestees entering a jail."630 F. Supp. at 259 (emphasis in original). *fn6 All but one of these cases held the particular search at issue unconstitutional. Dufrin v. Spreen, 712 F.2d 1084 (6th Cir. 1983), the exception, sanctioned the strip/body cavity search of a woman formally charged with a violent felony. Furthermore, four of these cases were decided after Block,*fn7 and thus presumably took into account the gloss that the district court here found Block added to Wolfish. Thus, if there could be any doubt that the balance of interests struck in Block does not dictate the result the court reached in this case, the law in other circuits shows that it does not. Indeed, even before the Supreme Court decided Block, five circuits had agreed that pre-trial detainees are not entitled to contact visits, see Block,468 U.S. at 582 n.6; three of those -- the Fourth, Seventh and Tenth Circuits -- had held that policies permitting routine strip/body cavity searches of arrestees were, in contrast, unconstitutional. See supra note 6.

[29] We note that at the end of the opinion below, the court seems to narrow its holding, observing that Monroe County Jail policy appears to subject arrestees to strip/body cavity searches only when the arrestees are unable to make bail immediately and, for reasons such as overcrowding, are moved from the holding cells in which they are initially placed into cells near arraigned inmates.630 F. Supp. at 261. It is not clear from the record that the jail itself so characterizes its policy or that it followed such a policy in searching Mrs. Weber; she stated in her affidavit that no one asked her if she could make bail and that the jail was not crowded during her stay. The presence of such disputed matters should have precluded the grant of summary judgment in favor of the defendants if the court intended to uphold the policy only as restated and narrowed. Furthermore, the court relied on incompetent affidavits and facts that would be inadmissible as evidence, see Fed. R. Civ. P. 56(e) and 32(a), such as the Sheriff's assertion that seventy percent of arrestees carry contraband into the jail, a conclusory estimate based neither on personal observation nor on an analysis of the jail's records. See Quinn v. Syracuse Model Neighborhood Corp.,613 F.2d 438, 445 (2d Cir. 1980).