Kelsey v. County of Schoharie

Judge SOTOMAYOR

dissents in a separate opinion.

I dissent because the majority has exercised jurisdiction where it has none and assumed the wrong party’s version of the facts. It has also offered dicta that contradicts this Circuit’s precedent and disregards the experienced judgment of jail administrators. Under a correct analysis of this case, we would be presented with the following question: During the relevant time period, did our clearly established precedent interpreting the Fourth Amendment permit arrestees for misdemeanors to be forced to expose their private parts to corrections officers (“COs”) and inmates without reasonable suspicion? The answer is “no.” Accordingly, the judgment of the district court should be affirmed.

Because we are reviewing, on interlocutory appeal, a denial of summary judgment on the ground of qualified immunity, our jurisdiction is limited in two key ways. First, we cannot assert jurisdiction over a question of evidence sufficiency. Salim v. Proulx, 93 F.3d 86, 91 (2d Cir.1996) (“What we may not do ... is entertain an interlocutory appeal in which a defendant contends that the district court committed an error of law in ruling that the plaintiffs evidence was sufficient to create a jury issue on the facts relevant to the defendant’s immunity defense.”). Second, we may only assert jurisdiction over this interlocutory appeal if we use the “undisputed facts or plaintiffs version of the facts.” *66Coons v. Casabella, 284 F.3d 437, 440 (2d Cir.2002) (internal quotation marks omitted). The majority violates both principles: it dismisses the district court’s finding regarding the sufficiency of plaintiffs’ evidence, and it adopts defendants’ version of the facts.

The district court found that there existed “issue[s] of material fact as to whether [the jailj’s policies and practices require COs to observe inmates as they remove their street clothes” in what may have amounted to a “strip search process.” Kelsey v. County of Schoharie, No. 04-cv-299, 2007 WL 603406, at *5 (N.D.N.Y. Feb.21, 2007). Rejecting the district court’s finding, the majority re-evaluates the record and concludes that “[plaintiffs were not required to display ... their body parts in any way” and that “methods were available to the[ plaintiffs] to protect viewing of their private parts in the event they desired to make use of such methods.” Maj. Op. at 65. The majority never explains how it has the authority to reweigh the sufficiency of the evidence and conclude that there is no dispute regarding a material fact. Our precedent is clear that “[i]n an interlocutory appeal of a qualified immunity claim, where the parties dispute material facts, the issue of whether there is sufficient evidence to support plaintiffs version of the material facts is within the province of the district court.” Holeman v. City of New London, 425 F.3d 184, 192 (2d Cir.2005); see also Martinez v. Simonetti, 202 F.3d 625, 632 (2d Cir.2000) (“[Ijmmediate appeal is not permitted if the district court’s denial of summary judgment for qualified immunity rests on a finding that there were material facts in dispute .... ” (internal quotation marks omitted)).

The majority avoids acknowledging its usurpation of the district court’s jurisdiction by purporting to conduct an analysis based on plaintiffs’ version of the facts. Maj. Op. at 63-64. Yet plaintiffs Kelsey and Wright have alleged that, after being arrested, respectively, for violating a child support order and driving while intoxicated, they were forced to strip naked and be inspected by corrections officers. {See Compl. ¶¶ 32-36, 40-43; Dep. of John Kelsey 75:22-76:2 (“I was humiliated.... I had another officer strip me down and, you know, staring at me when I was naked.”); Dep. of Timothy E. Wright 134:10-13 (“[I]t was, you know, just a rather humiliating kind of-shameful kind of, just being naked in front of at least one other individual and possibly in the view of others.”).) Contrary to these allegations, the majority implausibly concludes that Kelsey and Wright volunteered to strip naked and expose their private parts to corrections officers and others, despite several opportunities to guard their privacy. See Maj. Op. at 65. In so concluding, the majority is adopting defendants’ — not plaintiffs’ — -version of the facts. {See Appellants’ Br. at 2 (“This case specifically concerns a procedure ... that requires inmates to change out of their street clothes and into a facility-issued uniform with partial privacy but in the physical presence of a corrections officer.”).)

The majority justifies its approach by excerpting portions of plaintiffs’ deposition testimony. For example, the majority emphasizes Kelsey’s responses to questions from defendants’ counsel to the effect that, during his disrobing, no one prevented him from turning around, hiding behind a half-wall in the booking area, or somehow covering himself with a towel or mesh bag while removing all of his clothes. Maj. Op. at 58, 63 These statements, however, cannot be understood in isolation. Kelsey, according to his own testimony, did not recall having a towel at his disposal when he was removing his clothing. Nonetheless, the majority assumes that a towel *67was “available” to Kelsey during his disrobing. Maj. Op. at 63.

The majority overlooks or discounts other key details in the deposition testimony of Kelsey and Wright that undermine the majority’s conclusion that plaintiffs, by their own admission, could have protected their privacy by turning their backs to the CO,1 wrapping themselves in a towel or hiding behind a half-wall in the booking area. First, the majority acknowledges but then disregards that one of the COs who may have observed Wright testified that arrestees were “required to stand in front of him and face him during the entire clothing exchange,” and that the exchange did not take place near the half-wall or provide the “option to disrobe in private.” Maj. Op. at 59. Second, the majority simply ignores that Kelsey testified that he was forced to disrobe in full view of a holding cell that contained an inmate, who was standing and laughing at Kelsey. It is questionable whether Kelsey could have avoided the eyes of the CO as well as those of the inmate. Third, the majority dismisses Kelsey’s testimony that, because the jail uniform into which he was supposed to change was located on a bench outside of his reach, he had to walk while naked to obtain the uniform.2 Under those circumstances, it is unclear how Kelsey could have maintained his privacy behind a wall. Fourth, Wright testified that he was forced to strip inside of, or immediately at the gate of, a holding cell, in front of which stood a CO. During his deposition, one of the COs confirmed that he conducted clothing exchanges in the holding cell with the arrestee. In order to change behind-the half-wall, Wright would have been required to walk away from the holding cell and past the CO. Fifth, although the majority notes that Kelsey and Wright testified that a CO stood in front of them while they were changing, the majority does not fully consider the fact that, according to both parties, the CO was holding the bag into which plaintiffs- had to deposit their clothes as they removed them. This would have made it nearly impossible for either arrestee to turn his back to the CO and successfully deposit his clothes in the bag.

Finally, the majority assumes that the obligatory stripping occurred amidst free-spirited dialogue between jail guards and arrestees, instead of (as defendants acknowledge) in a “controlled environment,” which both Kelsey and Wright described as “[hjumiliating.” In the one instance when Kelsey (who worked as a corrections officer at another jail) questioned the CO regarding the disrobing procedure, Kelsey was informed that he had no other option.3

The majority compounds its errors involving jurisdiction and standard-of-review by offering dicta that contradicts this Circuit’s precedent. Although concluding that “methods were available to the[ plaintiffs] to protect any viewing of their private parts,” Maj. Op. at 65, the majority nonetheless suggests that the disrobing procedure would be constitutional because “briefly ‘seeing’ a man’s genitals during a clothing exchange does not amount to a strip search.” Maj. Op. at 63. Then the majority seems to retreat from this state*68ment when it writes, “[w]e hold here only that a process for the exchange of personal clothing for prison clothing under the observation of a corrections officer in the manner described by plaintiffs does not implicate the type of privacy protected by the Fourth Amendment.” Maj. Op. at 65. In fact, as discussed, the majority has accepted defendants’ version of the facts and concluded that plaintiffs in this case were not required to expose themselves. Accordingly, any statement by the majority about the constitutionality of forcing arrestees to strip naked is dicta.

It is, however, puzzling dicta, given this Circuit’s precedent on strip searches. See, e.g., Shain v. Ellison, 273 F.3d 56, 66 (2d Cir.2001) (“[Pjersons charged with a misdemeanor and remanded to a local correctional facility ... have a right to be free of a strip search absent reasonable suspicion that they are carrying contraband or weapons.... ”); Walsh v. Franco, 849 F.2d 66, 69 (2d Cir.1988) (“[T]he unconstitutionality of a blanket policy calling for strip searches of all misdemeanor arrestees was clearly established.”). Without explanation, the majority dismisses this Circuit’s precedent on strip searches as not “controlling] the allegations in this case.” Maj. Op. at 65. From the majority’s opinion, however, one can infer two possible reasons for the majority’s summary statement, neither of which is valid under Fourth Amendment jurisprudence.

First, insofar as the majority suggests that “brief[]” exposure of one’s private parts does not implicate the Fourth Amendment, Maj. Op. at 63, our precedent does not support the notion that a search need be prolonged or thorough to be termed a “strip search.” See N.G. v. Connecticut, 382 F.3d 225, 228 n. 4 (2d Cir. 2004) (“ ‘Strip search’ is often used as an umbrella term that applies to all inspections of naked individuals.”).

Second, the majority seems to suggest that the disrobing procedure at issue in this case “does not implicate the type of privacy protected by the Fourth Amendment” (Maj. Op. at 65) and is distinguishable from traditional strip searches of persons charged with misdemeanors because of the motives of the officers conducting the procedure. See Maj. Op. at 64 (describing (1) CO’s testimony that purpose of strip procedure was merely to exchange clothes, and (2) observation of arrestee’s body as “incidental” to “clothing exchange”).4 But the privacy interests protected by the Fourth Amendment do not become irrelevant merely because we use the nomenclature of “clothing exchange” instead of “strip search.” See Marriott v. County of Montgomery, 227 F.R.D. 159, 169 (N.D.N.Y.2005) (“Using different terminology, such as change-out, does not change the observation of a naked admit-tee to anything other than what it is — a strip search.”). As the Supreme Court has explained with respect to the act of urination (whose visual or aural monitoring “implicates privacy interests”), “[t]here are few activities in our society more personal or private.... Most people describe it by euphemisms if they talk about it at all. It is a function traditionally performed without public observation; indeed, its performance in public is generally prohibited by law as well as by social custom.” Skin*69ner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 617, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989) (internal quotation marks omitted). This rationale applies equally strongly to the exposure of one’s private parts. See Justice v. City of Peachtree City, 961 F.2d 188, 191 (11th Cir.1992) (“Deeply imbedded in our culture is the belief that people have a reasonable expectation not to be unclothed involuntarily, to be observed unclothed or to have their ‘private’ parts observed or touched by others.” (internal quotation marks and alterations omitted)); cf. Forts v. Ward, 621 F.2d 1210, 1217 (2d Cir.1980) (“The privacy interest entitled to protection concerns the involuntary viewing of private parts of the body by members of the opposite sex.”).

Moreover, in analyzing the purpose of the disrobing procedure, the majority again commits the fallacy of adopting defendants’ version of disputed facts. Defendants have represented to this Court that the purpose of the procedure is “incidental observation of the inmate where the intent is not to search, but to perform an administrative action in a controlled environment.” (Reply Br. for Appellants at 21.) They have also asserted that the procedure is “not intended to be a personal search.” (Appellants’ Br. at 6.) The majority agrees. It writes of the “incidental observation of the body of an arrestee.” Maj. Op. at 64. In contrast, plaintiffs allege that the objective of the disrobing procedure is to search arrestees (see Appellees’ Br. at 2) and, according to the district court, the record “strongly suggested],” but did not establish, “that the purpose behind the entire exchange/strip search process is to search inmates for contraband.” Kelsey, 2007 WL 603406, at *6. If the majority accepted — as it must on this interlocutory appeal — plaintiffs’ version of the facts, then it would be compelled to call this procedure what plaintiffs allege it to be: a “strip search.”

Having erroneously concluded that the Fourth Amendment is not implicated, the majority nonetheless proceeds to argue that the disputed procedure is constitutionally valid because it is “related to ‘maintaining institutional security and preserving internal order and discipline.’ ” Maj. Op. at 64 (quoting Bell v. Wolfish, 441 U.S. 520, 546, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979)). But a court need only examine penological objectives if a constitutional right is implicated. See Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987) (“[W]hen a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.”). Accordingly, the majority’s analysis belies its conclusion: the majority’s evaluation of penological objectives is necessary only if — contrary to the majority’s conclusion — the disrobing procedure implicates the type of privacy interests protected by the Fourth Amendment.5

Nonetheless, it is true that with respect to jails, “maintaining institutional security and preserving internal order and discipline are essential goals that may require limitation or retraction of the retained constitutional rights of both convicted prisoners and pretrial detainees.” Bell, 441 U.S. at 546, 99 S.Ct. 1861. But the majority, after implicitly conceding that the disrobing procedure implicates the Fourth Amendment, invokes penological objectives that defendants have rejected and fails to *70identify essential goals requiring the retraction of Fourth Amendment rights. Although recognizing that it is “ill-equipped to define the contours of life in jail,” Maj. Op. at 64, the majority nonetheless “substitute[s] [the Court’s] judgment on these difficult and sensitive matters of institutional administration and security for that of the persons who are actually charged with and trained in the running of such facilities.” Block v. Rutherford, 468 U.S. 576, 588, 104 S.Ct. 3227, 82 L.Ed.2d 438 (1984) (internal quotation marks and citations omitted). For example, the majority suggests that the clothing procedure is justified in order to ensure: (1) “that each inmate has clothing that is clean and free of infestation;” (2) “that inmates are clearly identifiable and distinguishable from visitors, staff and members of the public;” and (3) “that a positive state of mind be instilled in each inmate.” Maj. Op. at 64. But no one is challenging a jail’s authority to require detainees to wear uniforms, and none of these reasons justify requiring an arrestee to strip in front of a CO. See Bell, 441 U.S. at 559, 99 S.Ct. 1861 (“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.”); Weber v. Dell, 804 F.2d 796, 804 (2d Cir. 1986) (“Deference, however, is not a dispensation from the requirement under the Fourth Amendment that searches be reasonable.”). Jail administrators have adopted means — other than clothing exchanges — of detecting contraband. In particular, the jail policy (which does not reference clothing exchanges) allows pat searches and searches with a hand-held metal detector upon intake, and it permits strip searches and body cavity searches upon “reasonable suspicion to believe that the inmate should be searched.”

The majority also suggests that forcing arrestees to strip naked is justified because COs must “observe inmates at all times.” Maj. Op. at 64. But defendants never claim that COs must be omnipercipient. Defendants deny the existence of any blanket jail policy of requiring arrestees to expose themselves. (See Appellants’ Br. at 2 (“This case specifically concerns a procedure ... that requires inmates to change out of their street clothes and into a facility-issued uniform with partial privacy but in the physical presence of a corrections officer.”).) According to defendants, arrestees are permitted to change behind a half-wall and are informed by COs that they may use a towel for privacy. They further acknowledge that COs do not watch the arrestees showering or changing into their jail uniforms. Defendants do not, therefore, argue that COs must exercise unflagging and perpetual vigilance over every pore of an arrestee’s body. Nor, in contrast to the majority, do defendants suggest that some degree of privacy is necessarily anathema to a jail’s internal order or that the forced exposure of private parts during a clothing exchange is an integral part of jail security. Accordingly, where defendants, themselves, have conceded that penological interests are satisfied in a manner that does not require the forced exposure of private parts, we should not condone an alleged infringement upon constitutionally protected privacy interests merely because we can imagine an alternative procedure that we might consider to be more effective.

I agree with the majority that it is important for corrections officers to be vigilant and that clothing exchanges can serve important objectives. Maj. Op. at 64. But like the First Circuit and in the absence of reasonable suspicion:

[o]ur case law on misdemeanor arrestees effectively holds that, even if the only way to be comprehensive in detecting *71contraband is to perform a strip search, the government must bear the risk of missing some items.... [Balancing constitutional rights and institutional needs may require that, in situations presenting only a remote risk of concealment, we accept less than perfect law enforcement procedures.

Wood v. Hancock County Sheriffs Dep’t, 354 F.3d 57, 65 n. 13 (1st Cir.2003); see N. G., 382 F.3d at 232 (“[I]n several decisions, we have ruled that strip searches may not be performed upon adults confined after arrest for misdemeanors, in the absence of reasonable suspicion concerning possession of contraband.”). If, under plaintiffs’ version of the facts, arrestees for misdemeanors could have protected their private parts from exposure, I would have agreed with the majority that Fourth Amendment interests would not be implicated and violated. But that is not the case before us.

Because plaintiffs’ version of the facts indicates a constitutional violation of a clearly established right under the Fourth Amendment against unreasonable searches, we should affirm the district court’s denial of summary judgment.

. Despite the majority’s assumption, it is not clear that an individual’s privacy interests would be preserved if he were forced to expose his naked backside to a CO.

. Kelsey testified that, in order to reach the bench, "I had to move. I don't know exactly how many steps.”

. Kelsey testified as follows: “I had asked him [the C.O.], ‘Do I have to [do] this here?' 'Do I have to get changed here,’ and he said 'Yes, you do.' ”

. To the extent that the majority is suggesting that the exact same procedure may or may not amount to an invasion of privacy depending upon the CO’s subjective intent, this is improper because "challenged searches are judged 'without regard to the underlying intent or motivation of the officers involved.’ ” Hudson v. New York City, 271 F.3d 62, 68 (2d Cir.2001) (quoting Scott v. United States, 436 U.S. 128, 138, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978)).

. The majority responds that, regardless of whether a constitutional right is implicated, nothing prevents it from considering penological interests “in other circumstances.” Maj. Op. at 64 n. 5. But the majority fails to explain what "other circumstances” justify its analysis or how its discussion is relevant to its holding.