Swain v. Spinney

United States Court of Appeals
For the First Circuit

No. 96-2035

KELLI SWAIN,

Plaintiff, Appellant,

v.

LAURA SPINNEY, EDWARD HAYES, AND THE TOWN OF NORTH READING,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George A. O'Toole, Jr., U.S. District Judge]

Before

Stahl, Circuit Judge

Bownes, Senior Circuit Judge

and Lynch, Circuit Judge.

Michael Tyler, with whom Michael Edward Casey was on brief, for

appellant.
Douglas I. Louison, with whom Regina M. Gilgun and Merrick &

Louison were on brief, for appellees.

June 25, 1997

LYNCH, Circuit Judge. Kelli Swain was subjected to
LYNCH, Circuit Judge.

a strip search and visual body cavity inspection, while being

held in a cell in the North Reading, Massachusetts police

station. This search occurred after Swain had been in the

cell for twenty minutes, and more than an hour after she was

arrested. She was arrested with her boyfriend as a result of

his shoplifting; she was suspected of having possessed a

small baggie of marijuana. The search was ordered, she says,

by a police officer immediately after he had interrogated

her, while knowing she was represented by counsel. He had

become angry with Swain for saying she knew nothing about her

boyfriend's shoplifting. Swain's boyfriend, who was also in

custody, whose shoplifting had triggered the arrests, and who

had an extensive criminal record, including drug crimes, was

not strip-searched. The charges against Swain were

eventually nol prossed.

Swain brought suit under 42 U.S.C. 1983 and Mass.

Gen. Laws ch. 12, 11H, 11I, alleging that the search

humiliated her and caused lasting emotional damage. The

district court granted summary judgment for the defendants.

The court held that there were no material facts in dispute

which would support Swain's claims that the search was not

reasonable under the Fourth Amendment and that the officers

were not entitled to immunity. We hold that, as alleged by

Swain, a jury could find that the search was not justified by

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a reasonable suspicion, and that the jury should have the

opportunity to resolve the factual disputes pertinent to the

issue of whether the officers were entitled to the

protections of qualified immunity. Swain fails, however, to

meet the exacting standards for municipal liability under

1983, even on her version of the facts. Accordingly, the

judgment of the district court with respect to the individual

defendants is reversed, but the grant of summary judgment as

to the Town of North Reading is affirmed.

I.

We review the facts in the light most favorable to

Swain, the party opposing summary judgment. On May 18, 1993,

Kelli Swain and her boyfriend, Christopher Milbury, went

apartment hunting in the Danvers, Massachusetts area. Around

10:00 a.m., after the couple had been driving for a little

while, Milbury told Swain that he needed to pick up some

things at Moynihan Lumber. Swain waited in the car while

Milbury went into the store; he was gone about ten minutes.

When Milbury got back, he placed a bag behind the seat and

started to leave the parking lot. As they drove out of the

parking lot, Swain saw Moynihan Lumber employees pointing at

the car; she also saw a police cruiser pulling into the lot

just as she and Milbury were pulling out.

Swain became very upset. She began questioning

Milbury about what was going on. Then, after they had driven

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200 or 300 yards, the police cruiser, which had been

following the couple since the parking lot, turned on its

blue lights and its siren; Milbury pulled their car over.

Officer Robert Marchionda then approached the vehicle and

Milbury got out of the car. Swain remained in the car for a

minute or two, and then got out when she saw Milbury being

handcuffed. As Swain got out, she dropped a baggie of

marijuana on the ground about three feet away from the car.

Officer Marchionda had seen Swain put her hands behind her

back and drop an object onto the grass, but could not, at

that point, identify the object. Officer Marchionda radioed

for backup, and another officer, Officer Romeo, arrived soon

thereafter. Swain then approached the officers, but was

stopped by one of them, who restrained her with his hands.

She asked what was going on, and was told that Milbury was

suspected of taking things from Moynihan Lumber. Officer

Marchionda then arrested Swain and handcuffed her. While he

was handcuffing her, he saw that the dropped object was a

baggie of marijuana. He retrieved it. Swain was pat frisked

at the scene, but nothing was found on her person.

When the police searched the car, they found $400

worth of hardware in the trunk, which had been taken from

another store in Gloucester, Massachusetts, and another $400

worth of sawblades, wrapped in a hardware flyer, under the

front seat. Swain was surprised to see the merchandise

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there. The police implied that she was an accomplice to

Milbury's theft; she kept saying that she did not know

anything about it. Milbury also told the police that Swain

was innocent.

Neither of the officers ever asked her about the

marijuana on the ground. Swain did not see anyone pick up

the marijuana and did not know if anyone had seen her drop

it.

After about thirty minutes at the scene, Swain and

Milbury were transported in a police cruiser to the North

Reading Police Station. When she got to the station, her

handcuffs were removed. Swain was seated at a booking desk,

and an officer had her sign a rights card. Matron Laura

Spinney, the chief of police's secretary, was called to the

booking desk because a female was under arrest.

While in the booking area, Swain asked to go to the

bathroom. Matron Spinney escorted her to a bathroom, but

did not come in with her. Swain was allowed to close the

door almost all of the way, leaving it open just a little.

Spinney stood outside the door to the room, where she could

hear Swain using the facilities, but could not see Swain.

Swain then returned to the booking area, and was told that

she could make a phone call. She was shown to a small

office, and a police officer stood outside. She called her

attorney and spoke with him for five to ten minutes.

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While Swain was seated in the booking area, her

pocketbook was searched by Spinney. Spinney found cigarette

rolling papers in the pocketbook. No one discussed these

papers with Swain. At that point, one of the officers

advised Swain that marijuana had been found at the scene and

that she was going to be charged in connection with it.

Swain denied that it was her marijuana.

Swain was then fingerprinted and photographed.

Officer Ed Hayes, the prosecuting officer and detective

department supervisor, ordered Matron Spinney to take Swain

to a cell. Spinney pat frisked Swain before taking her to

the cell and found nothing on her. Swain was left alone in

the cell for about twenty minutes. According to Swain,

Sergeant Hayes then came to her cell and attempted to

question her about Milbury's criminal activities. Hayes

yelled at Swain, telling her that she was lying, and that she

should tell him what was going on. Swain, who was crying

hysterically, kept repeating that she honestly knew nothing.

According to Swain, Hayes' questioning lasted approximately

fifteen minutes and then he "walked out in a huff."

Hayes states that he only stayed with Swain in the

cell area for approximately one minute. He has no

recollection of what he discussed with Swain, but asserts

that it would be normal procedure for him to talk to

detainees to advise them about their arraignments. He does

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not recall interrogating Swain about Milbury's activities,

but cannot state that he did not do so. Milbury, who was

located in another cell where he could hear but not see

Swain, stated that he heard Hayes talking to her and also

heard Swain crying and saying that she was innocent.

About five to ten minutes after Hayes' departure,

Spinney returned and apologetically informed Swain that Hayes

had ordered her to strip search Swain. It is Hayes'

testimony that he believes he would have ordered such a

search prior to speaking with Swain. Spinney does not know

whether the search was ordered before or after Hayes spoke

with Swain, but knows that Hayes did not order a strip search

when he originally told Spinney to take Swain to the cell.

Spinney states, however, that the order to strip search came

almost immediately after she brought Swain to the cell, and

not a significant amount of time later.

Swain could not understand why she was being

searched and began crying again. Spinney then ordered Swain

to remove all of her clothing except for her bra. Spinney

shook out each item as Swain took it off. Spinney then made

Swain bend over and spread her buttocks. Swain was very

upset and shaking uncontrollably the entire time. Swain was

then told she could get dressed. Spinney found nothing

during her search. The entire procedure lasted fifteen

minutes. Hayes had not told Spinney what to look for, but

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Spinney knew that marijuana had been found at the scene, and

assumed that she was looking for drugs.

Swain asserts that, before she was asked to strip,

Spinney assured Swain that the video camera in the cell area

was already off. Swain did not see her turn the camera off.

Chief of Police Henry Purnell testified, however, that the

station cameras, including the one in the female cell, are

constantly left on. Videotapes are sometimes made from these

cameras, but the Department has no policies or procedures

concerning the making, storage, or retention of these tapes.

Matrons are instructed to turn the cell camera off, by

pressing a button, when conducting a search. Spinney states

that she turned the camera off with a wall switch before

searching Swain, but does not recall telling Swain that the

camera was off or making any comments about the camera at

all.

Milbury, who had an extensive criminal record, was

never strip searched. Hayes was aware of Milbury's history

of drug convictions and knew that Milbury was on probation,

having pulled the records while booking Milbury. Swain had

no prior criminal convictions.

Officer Hayes, for his part, tells a different

story. He asserts that he ordered the strip search of Swain

immediately upon his arrival at the booking desk, which

occurred as soon as he was informed that the arrests had been

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made, and, he believes, before he spoke with her. According

to Hayes, he ordered the search because the arresting officer

showed him the marijuana and informed him that Swain was a

principal suspect in a narcotics incident. He also asserts

that he suspected Swain of carrying a concealed weapon,

although he acknowledges that this was a generalized

suspicion of narcotics suspects, rather than a suspicion

based on any characteristics of Swain.

Later that day, Milbury and Swain were arraigned in

Woburn District Court and released on their own recognizance.

All charges against Swain were eventually "nol prossed" or

continued without a finding. Swain suffered continuing

emotional trauma as a result of the search and sought

counseling.

The Town of North Reading's policy on strip

searches is outlined in a memo on "Inventory Search Policy,"

prepared in 1989 by training officer Lieutenant Edward Nolan.

The Policy states that: "A strip search of the arrestee is

warranted only if the police have probable cause to believe

that the arrestee is concealing contraband or weapons on his

body." Chief Purnell testified that, in any arrest involving

drugs, all arrestees are strip searched. The shift commander

-- normally the highest-ranking officer on duty -- makes the

determination of when a strip search is warranted.

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The Municipal Police Institute (MPI), a statewide

police association, publishes a book called "Police Manual:

Policies & Procedures." Chief Purnell testified that the

North Reading police adhere to the MPI policies. The

relevant MPI policy is as follows:

A strip search of an arrestee is
warranted only if officers have
reasonable suspicion to believe that the
arrestee is concealing contraband or
weapons on his body.

1. All body strip-searches must be approved
by the officer-in-charge, who shall
consider the following question:

Is the crime one that is normally
associated with weapons or
contraband?

Only if the answer to this question is
yes and there is a reasonable suspicion
that the arrestee has weapons or
contraband on his person will a body
strip-search be authorized.

2. Body cavity searches should not be
conducted without the express approval
of the officer-in-charge, and require a
search warrant signed by a judge.

However, both Sergeant Hayes and Matron Spinney testified

that they were unaware that North Reading had any policy with

regard to strip searches. Hayes testified that it was his

policy to strip search individuals whenever narcotics were

involved in the case. Nonetheless, he did not order a strip

search of Milbury.

II.

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Swain claims, under 42 U.S.C. 1983 and Mass. Gen.

Laws ch. 12, 11H, 11I, that Laura Spinney, Edward Hayes,

and the Town of North Reading violated her rights under the

United States and Massachusetts Constitutions by subjecting

her to an unreasonable search. On defendants' motion for

summary judgment, the district court held that, under United

States v. Klein, 522 F.2d 296 (1st Cir. 1975), the search of

Swain was within the bounds of the Fourth Amendment. It

thought Klein unaffected by Bell v. Wolfish, 441 U.S. 520

(1979). The district court further held that the individual

defendants were, in any event, entitled to qualified immunity

from suit. As to the Massachusetts law claims, the court

found that, in this area, Massachusetts constitutional law

tracked the federal standards. Finally, the district court

found that Swain had failed to meet the exacting standards

for municipal liability under 1983.

Swain argues on appeal that the police must have

probable cause to believe that an arrestee is concealing

weapons or contraband in order to strip search that arrestee.

She further argues that, even if the search needed only to be

supported by a reasonable suspicion, no such suspicion was

present and that the officers are thus not entitled to the

protections of qualified immunity.

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We review the district court's grant of summary

judgment de novo. EEOC v. Amego, Inc., 110 F.3d 135, 141

(1st Cir. 1997).

III.

A strip and visual body cavity search of an

arrestee must be justified, at the least, by a reasonable

suspicion. Because a jury could find that Officer Hayes

acted without a reasonable suspicion that Swain was

concealing drugs or weapons, we find that Swain has stated a

claim against the individual defendants sufficient to

withstand a motion for summary judgment. Furthermore, while

some courts have suggested that a higher standard may be

necessary to justify a strip search and visual body cavity

inspection, it was clearly established at the time of the

search that the Fourth Amendment requires at least a

reasonable suspicion to conduct these types of searches.

Significant factual disputes remain, rendering it impossible

to resolve conclusively the immunity question on summary

judgment.

A. Strip Searches, Visual Body Cavity Inspections, and the

Fourth Amendment

"[I]n the case of a lawful custodial arrest a full

search of the person is not only an exception to the warrant

requirement of the Fourth Amendment, but is also a

'reasonable' search under that amendment." United States v.

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Robinson, 414 U.S. 218, 235 (1973). Thus, under Robinson, if

the arrest was lawful, a searching officer does not need to

have any further justification for performing a full body

search of an arrestee. See United States v. Bizier, 113 F.3d

214, 217 (1st Cir. 1997). Moreover, a search incident to

arrest need not occur at the scene of the arrest, but "may

legally be conducted later when the accused arrives at the

place of detention." United States v. Edwards, 415 U.S. 800,

803 (1974).

However, Robinson did not hold that all possible

searches of an arrestee's body are automatically permissible

as a search incident to arrest. To the contrary, any such

search must still be reasonable:

Holding the Warrant Clause inapplicable
to the circumstances present here does
not leave law enforcement officials
subject to no restraints. This type of
police conduct "must [still] be tested by
the Fourth Amendment's general
proscription against unreasonable
searches and seizures."

Edwards, 415 U.S. at 808 n.9 (quoting Terry v. Ohio, 392 U.S.

1, 20 (1968)). In Robinson itself, the Court noted that the

search at issue, while thorough, did not have "extreme or

patently abusive characteristics." 414 U.S. at 236 (citing

Rochin v. California, 342 U.S. 165 (1952)). Later, in

Illinois v. Lafayette, 462 U.S. 640 (1983), the Court

explicitly stated that "[w]e were not addressing in Edwards,

and do not discuss here, the circumstances in which a strip

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search of an arrestee may or may not be appropriate." Id. at

646 n.2. "Robinson simply did not authorize" a strip and

visual body cavity search. Fuller v. M.G. Jewelry, 950 F.2d

1437, 1446 (9th Cir. 1991); see also Mary Beth G. v. City of

Chicago, 723 F.2d 1263, 1271 (7th Cir. 1983)("[T]he Robinson

court simply did not contemplate the significantly greater

intrusions that occur[]" in a visual body cavity

inspection.).

A strip and visual body cavity search thus requires

independent analysis under the Fourth Amendment. In Bell v.

Wolfish, 441 U.S. 520 (1979), the Supreme Court noted that

"[t]he test of reasonableness under the Fourth Amendment is

not capable of precise definition or mechanical application."

Id. at 559. Rather, the evaluation of the constitutionality

of a warrantless search

requires a balancing of the need for the
particular search against the invasion of
personal rights that the search entails.
Courts must consider the scope of the
particular intrusion, the manner in which
it is conducted, the justification for
initiating it, and the place in which it
is conducted.

Id. In Wolfish, the Supreme Court applied this balancing

test to a prison policy that required arraigned pre-trial

detainees to "expose their body cavities for visual

inspection as a part of a strip search conducted after every

contact visit with a person from outside the institution."

Id. at 558. Noting that "this practice instinctively gives

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[the Court] the most pause," id. at 559, the Court found only

that visual body cavity searches can "be conducted on less

than probable cause." Id. at 560. In so holding, Wolfish

"did not, however, read out of the Constitution the provision

of general application that a search be justified as

reasonable under the circumstances." Weber v. Dell, 804 F.2d

796, 800 (2d Cir. 1986).

In applying the Wolfish balancing test to searches

of the type to which Swain was subjected, courts have

recognized that strip and visual body cavity searches impinge

seriously upon the values that the Fourth Amendment was meant

to protect. These searches require an arrestee not only to

strip naked in front of a stranger, but also to expose the

most private areas of her body to others. This is often, as

here, done while the person arrested is required to assume

degrading and humiliating positions. Our circuit has

"recognize[d], as have all courts that have considered the

issue, the severe if not gross interference with a person's

privacy that occurs when guards conduct a visual inspection

of body cavities." Arruda v. Fair, 710 F.2d 886, 887 (1st

Cir. 1983). The Seventh Circuit has described "strip

searches involving the visual inspection of the anal and

genital areas as demeaning, dehumanizing, undignified,

humiliating, terrifying, unpleasant, embarrassing, repulsive,

signifying degradation and submission." Mary Beth G., 723

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F.2d at 1272 (internal quotation marks omitted); see also

Wood v. Clemons, 89 F.3d 922, 928 (1st Cir 1996) ("[A] strip

search can hardly be characterized as a routine procedure or

as a minimally invasive means of maintaining prison security.

Indeed, a strip search, by its very nature, constitutes an

extreme intrusion upon personal privacy, as well as an

offense to the dignity of the individual."); Kennedy v. Los

Angeles Police Dep't, 901 F.2d 702, 711 (9th Cir.

1990)("Strip searches involving the visual exploration of

body cavities are dehumanizing and humiliating.").

On the other side of the scales, courts must weigh

the legitimate needs of law enforcement. Institutional

security has been found to be a compelling reason for

conducting warrantless strip and visual body cavity searches.

See, e.g., Wolfish, 441 U.S. at 559 (prisoner strip searches

after contact visits justified because detention facility "is

a unique place fraught with serious security dangers"). Some

courts have held that a warrantless strip search may also be

justified by the need to discover and preserve concealed

evidence of a crime. See, e.g., Justice v. Peachtree City,

961 F.2d 188, 193 (11th Cir. 1992). But see Fuller, 950 F.2d

at 1446 (strip and visual body cavity search with less than

probable cause only permitted to protect institutional safety

and security; search for evidence must be justified by

probable cause).

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Balancing these interests, courts have concluded

that, to be reasonable under Wolfish, strip and visual body

cavity searches must be justified by at least a reasonable

suspicion that the arrestee is concealing contraband or

weapons.1 See, e.g, Justice, 961 F.2d at 192; Masters v.

Crouch, 872 F.2d 1248, 1255 (6th Cir. 1989); Weber, 804 F.2d

at 802; Stewart v. Lubbock County, 767 F.2d 153, 156 (5th

Cir. 1985); Giles v. Ackerman, 746 F.2d 614, 615 (9th Cir.

1984); Mary Beth G., 723 F.2d at 1273. This court has held

that the reasonable suspicion standard is the appropriate one

for justifying strip searches in other contexts. See Wood,

89 F.3d at 929 (prison visitors); United States v.

Uricoechea-Casallas, 946 F.2d 162, 166 (1st Cir. 1991)(non-

routine border searches); cf. Burns v. Loranger, 907 F.2d

233, 236-38 (1st Cir. 1990) (officers protected by qualified

immunity for warrantless strip search of arrestee where there

were exigent circumstances and probable cause to believe

controlled substance would be found on arrestee's person).

Accordingly, it is clear that at least the reasonable

suspicion standard governs strip and visual body cavity

searches in the arrestee context as well.

1. As noted above, the Ninth Circuit has held that, absent a
threat to institutional security, the higher showing of
probable cause is required to justify such a search. Fuller,

950 F.2d at 1446.

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Defendants, and the court below, rely upon United

States v. Klein, 522 F.2d 296 (1st Cir. 1975). In that case,

the defendant, who was arrested after a sale of cocaine, was

subjected to a strip search, including a visual inspection of

his rectum. Id. at 299. This court approved that search as

"[a] post-arrest search of the person, plainly approved by

Edwards," and found that a lack of individualized suspicion

that the suspect was harboring evidence did not render the

search unreasonable. Id. at 300 & n.2.

Klein was decided before significant Supreme Court

precedent in the area, and we are bound by the Supreme

Court's developing doctrine. Klein predates Lafayette,

decided in 1983, where the Supreme Court stated that Edwards

did not answer the question of when a strip search was

appropriate. Lafayette, 462 U.S. at 646 n.2. Klein also

predated Wolfish, with its explicit recognition of the

invasiveness of strip and visual body cavity searches.

Wolfish, 441 U.S. at 558. Subsequent to Klein, and sensitive

to the developing doctrine, this circuit has repeatedly

recognized that strip and/or visual body cavity searches are

not routine, and must be carefully evaluated. See Burns, 907

F.2d at 236-37; Bonitz v. Fair, 804 F.2d 164, 170-72 (1st

Cir. 1986); Blackburn v. Snow, 771 F.2d 556, 564 (1st Cir.

1985); Arruda, 710 F.2d at 887. Accordingly, to the extent

that Klein held that strip and visual body cavity searches

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are simply searches incident to arrest, and do not need to be

further tested for reasonableness under the Fourth Amendment,

it does not survive Lafayette, Wolfish, and this court's

subsequent strip search decisions.

B. The Search of Swain

Turning to the particular search at issue, we

conclude, taking all the facts in the light most favorable to

Swain, that a jury could find that the search was

unreasonable and thus violated the Fourth Amendment.

Accordingly, we find that Swain has stated a trialworthy

claim under 42 U.S.C. 1983. On these facts, there appears

to be the distinct possibility that Officer Hayes ordered the

strip search in retaliation for his failed interrogation of

Swain in her cell, imposing sexual humiliation on her as a

punishment for what he perceived as her non-cooperation.

Hayes' angry response to Swain's inability to provide

information about Milbury's activities and the timing of the

search raise this inference. This possibility distinguishes

this case from Klein, where the court found that there was

"no evidence that the stripping was a pretext to humiliate or

degrade." Klein, 522 F.2d at 300.2 We must thus examine

2. We also recognize that, under United States v. Whren, 116

S. Ct. 1769 (1996), a police officer's subjective motivations
do not serve to invalidate a search for exclusionary rule
purposes, so long as the search was objectively reasonable
under the circumstances. Whren, however, also stressed that

"the Constitution prohibits selective enforcement of the law
based on considerations such as race," id. at 1774, and, we

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whether, on these facts, an objective officer would have had

a reasonable suspicion that Swain was concealing drugs or

contraband on her person. Three factors suggest that there

were not adequate grounds to justify the strip and visual

body cavity search of Swain. First, there is the timing of

the search. Swain had been alone in the cell for some period

of time before she was searched and no one thought it

important to search her before she angered Hayes by not

giving him the information he sought. Perhaps more

importantly, she had been allowed to go to the bathroom by

herself, unobserved, prior to being taken to her cell. This

also indicates that no one thought she had secreted drugs in

her private parts. Cf. Burns, 907 F.2d at 238 (common

knowledge that drug users and dealers with controlled

substances on their persons often attempt to flush drugs down

the toilet). If a warrantless strip search may be justified

by the need to avoid the destruction of concealed evidence,

Swain already had had ample opportunity to destroy any such

evidence. To the extent there was any reason to believe such

would assume, gender. The exclusionary rule, as the Supreme
Court recognized in Malley v. Briggs, 475 U.S. 335, 344

(1986), balances different interests than those in a 1983
action. ("While we believe the exclusionary rule serves a
necessary purpose, it obviously does so at a considerable
cost to the society as a whole, because it excludes evidence
probative of guilt. . . . On the other hand, a damages
remedy for [a Fourth Amendment violation] imposes a cost
directly on the officer responsible . . ., without the side
effect of hampering a criminal prosecution.").

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evidence still existed, further delay to obtain a warrant

would not have significantly increased the risk of

destruction. This was particularly true because Swain was

kept under observation and recorded by video camera while in

the holding cell.

Second, as noted, the most compelling justification

for warrantless strip and visual body cavity searches is

institutional security. It is uncontroverted that, prior to

her arraignment, Swain was the only person in the women's

holding cell of the North Reading Police Station. Her

arraignment was later the same afternoon, and she was then

released, on her own recognizance. There was no risk that

she would come into contact with other prisoners, or be able

to smuggle contraband or weapons into a secure environment.

Hayes stated that he believed that Swain, as a narcotics

suspect, might have been carrying a concealed weapon but he

did not assert that Swain posed a threat to his safety or

that of others in the police station. The institutional

security justification thus appears to be absent from this

case.

Third, there is the differential treatment by the

police of the young woman and her boyfriend. Swain and

Milbury were first pulled over because of Milbury's

shoplifting activities. Officer Hayes stated that, prior to

searching Swain, he had examined both Swain's and Milbury's

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records. Officer Hayes knew that Milbury was on probation and

had a history of drug convictions. By contrast, Swain did

not have a criminal record. Milbury had told officers,

including Hayes, that the marijuana was his. Yet Milbury was

not strip searched. If there was an objective basis -- apart

from retaliation -- for stripping Swain, it would have been

objectively reasonable, and more so, to search Milbury as

well.

On the other hand, Swain did drop a baggie of

marijuana at the scene of the crime. Officer Hayes expressed

the view (belied by his failure to strip search Milbury) that

a strip search was justified whenever narcotics are involved

in the case. This is not consistent with either the Town

policy, which requires probable cause, or the MPI policy,

which requires an individualized suspicion, even where the

crime involves contraband or weapons. The record does not

reveal how much marijuana was in the baggie Swain dropped,

nor does it reveal whether possession of that amount

constitutes a misdemeanor or a felony under Massachusetts

law. Nothing in the record suggests that Swain was suspected

of being a distributor of marijuana. The fact that Swain may

have possessed some unspecified amount of marijuana is not

enough to overcome, as a matter of law, the factors,

discussed above, under which a jury could find the search of

Swain unreasonable.

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Accordingly, we hold that a jury could lawfully

find that there was no objectively reasonable basis for strip

searching Swain and that, on these facts, Swain has stated a

claim for violation of her Fourth Amendment right to be free

from unreasonable searches that survives defendants' motion

for summary judgment.

C. Qualified Immunity

Defendants assert that they are, in any event,

entitled to qualified immunity from suit. There are two

prongs to the qualified immunity analysis. First, was the

constitutional right in question clearly established at the

time of the alleged violation? St. Hilaire v. Laconia, 71

F.3d 20, 24 (1st Cir. 1995). That is a question of law for

the court. Elder v. Holloway, 510 U.S. 510, 516 (1994).

Second, would a reasonable, similarly situated official

understand that the challenged conduct violated that

established right? St. Hilaire, 71 F.3d at 24.

The Fourth Amendment right to be free from

unreasonable strip searches has long been clearly established

in this circuit, as elsewhere. See Burns, 907 F.2d at 236;

Blackburn, 771 F.2d at 569 ("It can hardly be debated that .

. . in 1977, [there was] a 'clearly established' Fourth

Amendment right to be free of unreasonable searches."). As

discussed above, Klein's holding that such a search is a

reasonable search incident to arrest had been abrogated by

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subsequent Supreme Court and First Circuit cases, and had

been squarely rejected by the other circuit courts to

consider the issue. See Fuller, 950 F.2d at 1446, 1449 n.11

(holding that strip search with visual body cavity inspection

was not justifiable as a search incident to arrest but was

governed by higher standard, and rejecting Klein); Mary Beth

G., 723 F.2d at 1271 n.7 (searches like the one in Klein are

only constitutional where there is a reasonable belief that

arrestee is concealing contraband; routine post-arrest strip

search of misdemeanants is unconstitutional); see also Weber,

804 F.2d at 801 nn. 6 & 7, 803 (holding that it was, in 1986,

"clearly established" that policy of routine strip and visual

body cavity searches of arrestees was unconstitutional, and

citing "ten opinions from seven circuits" that refused to

condone such searches). Defendants themselves agree that the

search must be evaluated under the reasonableness standard

articulated by the 1979 Supreme Court decision in Wolfish.

The question is thus whether an objectively

reasonable officer would understand that a strip search of

Swain was, under these circumstances, unreasonable. This

prong of the inquiry, while requiring a legal determination,

is highly fact specific, and may not be resolved on a motion

for summary judgment when material facts are substantially in

dispute. 2 Nahmod, Civil Rights and Civil Liberties

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Litigation: The Law of Section 1983 8.08, at 136-39 (3d ed.

1991).

The ultimate question of whether a
reasonable police officer, on the basis
of information known to him, could have
believed his actions were in accord with
constitutional rights is a question of
law, subject to resolution by the judge
not the jury. But if there is a factual
dispute, that factual dispute must be
resolved by a fact finder.

St. Hilaire, 71 F.3d at 24 n.1 (internal citations omitted);

Figueroa-Rodriguez v. Aquino, 863 F.2d 1037, 1041 (1st Cir.

1988)("While the qualified immunity inquiry is ultimately a

question of law, it may also necessitate determining certain

of the essential facts.")(citing Anderson v. Creighton, 483

U.S. 635 (1987)); see also Consolo v. George, 58 F.3d 791,

794 (1st Cir.) (where law is clearly established, and there

is ample evidence that officers acted unreasonably, proper to

submit issue of objective reasonableness to the jury on

special interrogatories), cert. denied, 116 S. Ct. 520

(1995).

We recognize that the immunity question should be

resolved, where possible, in advance of trial. See, e.g.,

Veilleux v. Perschau, 101 F.3d 1, 2 (1st Cir. 1996).

However, disposition of the question on summary judgment is

not always possible. Here, some material facts are

significantly in dispute. Swain's story and that of Officer

Hayes conflict on the timing of the relevant events. Some

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proffers are supported or contradicted by other witnesses,

including Spinney and Milbury. Hayes contends that, as the

officer in charge of the investigation, he ordered the search

immediately upon being informed that a narcotics violation

had occurred. The timing of when the search was ordered is

essential to a determination of whether defendants' conduct

was objectively reasonable. There are thus factual issues,

potentially turning on credibility, that must be resolved by

the trier of fact. Only after the resolution of these

conflicts may the trial court apply the relevant law on

objective reasonableness.3

We also recognize that police officers are

protected in close cases by the doctrine of qualified

immunity, and that immunity serves to protect law enforcement

from the chilling threat of liability. Vargas-Badillo v.

Diaz-Torres, --- F.3d ----, 1997 WL 276662 (1st Cir. May 30,

1997); Joyce v. Town of Tewksbury, 112 F.3d 19, 23 (1st Cir.

1997) (patent violation of law necessary to strip police

officers of qualified immunity). On the other hand,

qualified immunity does not protect "those who knowingly

violate the law." Malley v. Briggs, 475 U.S. 335, 341

3. In St. Hilaire, we noted that the proper division of

functions between judge and jury on the objective
reasonableness inquiry may be accomplished either through
special interrogatories or through carefully structured jury
instructions. St. Hilaire, 71 F.3d at 24 n.1; see also

Nahmod, supra, 8.08, at 137. We leave that decision here

to the trial court.

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(1986). Here, further resolution of the facts is necessary

to determine whether or not this case falls into the category

of "close cases" in which the police are accorded "a fairly

wide zone of protection." Roy v. Inhabitants of the City of

Lewiston, 42 F.3d 691, 695 (1st Cir. 1996). On the facts as

related by Swain, Officer Hayes used a warrantless strip

search and visual body cavity inspection as a tool to

humiliate and degrade her in retaliation for her refusal to

respond to interrogation.

Independently of the issue of allegations that

Officer Hayes deliberately violated the law in order to

retaliate, as forbidden by Malley, Swain also asserts the

search is not, on its facts, objectively reasonable. This

search, on Swain's allegations, occurred after she had ample

opportunity to dispose of any hidden evidence and when she

was alone in a monitored cell, posing no danger to others

that might justify hastily proceeding without a warrant.

Such allegations, if true, do not represent a "close case"

but a flagrant violation of the Fourth Amendment's guarantee

against unreasonable searches. Whether those allegations are

true or not must be resolved by the finder of fact.

D. Municipal Liability

Swain claims that the Town of North Reading is

liable for the injuries that she suffered. The Supreme Court

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has recently clarified the necessary showing for a claim of

municipal liability under 1983:

[I]n Monell and subsequent cases we have

required a plaintiff seeking to impose
liability on a municipality under 1983
to identify a municipal "policy" or
"custom" that caused the plaintiff's
injury.
. . . .

As our 1983 municipal liability
jurisprudence illustrates, however, it is
not enough for a 1983 plaintiff merely
to identify conduct properly attributable
to the municipality. The plaintiff must
also demonstrate that, through its
deliberate conduct, the municipality was
the "moving force" behind the injury
alleged. That is, a plaintiff must show
that the municipal action was taken with
the requisite degree of culpability and
must demonstrate a direct causal link
between the municipal action and the
deprivation of federal rights.

Board of the County Comm'rs v. Brown, 117 S. Ct. 1382, 1388

(1997) (discussing Monell v. New York City Dep't of Social

Servs., 436 U.S. 658 (1978), and progeny).

Here, Swain predicates municipal liability on a

failure to properly communicate to the police force a uniform

policy on when strip searches are appropriate and who may

authorize them. This failure to train, Swain alleges, rose

to the level of conscious indifference to the constitutional

rights of arrestees. Swain accurately notes that the various

police personnel, including the police chief, expressed some

confusion as to when strip searches are warranted.

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The Supreme Court addressed failure to train claims

in Brown:

We concluded in Canton that an

"inadequate training" claim could be the
basis for 1983 liability in "limited
circumstances." We spoke, however, of a
deficient training "program," necessarily
intended to apply over time to multiple
employees. Existence of a "program"
makes proof of fault at least possible in
an inadequate training case. If a
program does not prevent constitutional
violations, municipal decisionmakers may
eventually be put on notice that a new
program is called for. Their continued
adherence to an approach that they know
or should know has failed to prevent
tortious conduct by employees may
establish the conscious disregard for the
consequences of their action -- the
"deliberate indifference"--necessary to
trigger municipal liability.

Id. at 1390 (discussing and citing Canton v. Harris, 489 U.S.

378 (1989)).

Swain does not, however, point to any other

incidents in which the North Reading police force violated

the rights of arrestees through strip and visual body cavity

searches. There was thus "no notice to the municipal

decisionmaker, based on previous violations of federally

protected rights, that his approach is inadequate." Id.

The Supreme Court has left open the possibility

that a failure-to-train claim can succeed without showing a

pattern of constitutional violations. "[I]n a narrow range

of circumstances, a violation of federal rights may be a

highly predictable consequence of a failure to equip law

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enforcement officers with specific tools to handle recurring

situations." Id. at 1391.

This is not that case. Officer Hayes and Chief

Purnell agreed that every officer was supplied with policy

guidelines, including periodic updates. Lieutenant Nolan's

memo requiring strip searches to be justified by probable

cause was such an update. The police officers also agreed

that the MPI, colloquially known as the "police manual," was

to be followed by, and was available to, the North Reading

force. Apparently, not all the officers had a consistent

understanding of those materials. However, it is undisputed

that North Reading did have an appropriate policy that was

distributed to the force; absent prior claims, it cannot be

reasonably inferred that Chief Purnell knew, or should have

known, that his officers were not executing that policy.

Accordingly, Swain cannot make the requisite showing of

"deliberate indifference" to her constitutional rights. We

affirm the grant of summary judgment as to the Town of North

Reading.

E. State Law Claim

The Massachusetts Declaration of Rights, article

14, gives every person the right to be free from

"unreasonable searches." The Massachusetts Civil Rights Act,

Mass. Gen. Laws ch. 12, 11H, 11I, provides a private right

of action for persons who are deprived of rights protected by

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either federal or state law. The district court concluded

that the protections of article 14 tracked the Fourth

Amendment protections of the federal Constitution, and that

the search of Swain was reasonable under both federal and

state law. We agree that cases like Rodriques v. Furtado,

575 N.E.2d 1124 (Mass. 1991), indicate that the state

constitution provides at least the level of protection

against strip and visual body cavity searches as does the

federal Constitution. However, in some instances, the

Supreme Judicial Court has concluded that "art[icle] 14

provides more substantive protection to criminal defendants

than does the Fourth Amendment." Commonwealth v. Upton, 476

N.E.2d 548, 556-57 (Mass. 1985) (rejecting federal standard

for determining probable cause based on confidential

informant tips); see also Commonwealth v. Blood, 507 N.E.2d

1029 (1987). The Supreme Judicial Court has also noted that

the Massachusetts law on body cavity searches under article

14 remains uncharted territory. Rodriques, 575 N.E.2d at 884

n.8. The SJC did remark, however, that the federal cases on

searches in prisons were not "germane" to a body cavity

search of a suspect for evidence "because of the 'diminished'

Fourth Amendment rights of prisoners and their visitors."

Id. (citations omitted). This remark certainly suggests the

possibility that Massachusetts law might place greater

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limitations on the use of strip and visual body cavity

searches of arrestees than the federal Constitution does.

We need not attempt to predict fully what course

Massachusetts law will take. The Massachusetts Constitution

certainly does not provide less protection than federal law.

Having found that the search of Swain may have been

objectively unreasonable under the federal Constitution, we

conclude that the law of the Commonwealth would at least view

the search similarly, and we therefore reinstate her state

law claim against the individual defendants.

Defendants contend that Swain cannot prove that her

injuries were perpetrated by "threats, intimidation, or

coercion" as required under Massachusetts law. See, e.g.,

Planned Parenthood League v. Blake, 631 N.E.2d 985, 990

(Mass. 1994). The Supreme Judicial Court has accepted that a

"threat" may be defined as an "exertion of pressure to make

another fearful or apprehensive of injury or harm"; that

"intimidation" may be defined as "putting [a person] in fear

for the purpose of compelling or deterring conduct"; and that

"coercion" may be defined as the application of physical or

moral force so as to force someone to do something she would

otherwise not have done. Id. On the facts here, a jury

could find that Officer Hayes used the strip search to

humiliate or punish Swain and as a means of exerting moral or

psychological pressure designed to weaken her perceived

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resistance to her questioning. This could indeed constitute

"intimidation" or "coercion" within the meaning of the

statute.

The judgment of the court below is affirmed with
affirmed

respect to the Town of North Reading, and reversed with
reversed

respect to the individual defendants.

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