21-2998-cv
Murphy v. Hughson et al.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
___________________________
August Term, 2022
(Argued: March 14, 2023 Decided: September 21, 2023)
Docket No. 21-2998-cv
___________________________
CHRISTOPHER M. MURPHY,
Plaintiff-Appellant,
v.
ANDREW C. HUGHSON, FRANK B. HILLMAN, DANIEL HOWE, GLENN GUNDERMAN,
WILLIAM WASHBURN, JOSEPH SPENCER, CORRECTIONAL OFFICER DAVID STRONG,
Defendants-Appellees,
COUNTY OF CHEMUNG, CITY OF ELMIRA, JOHN DOE, BEING INDIVIDUALS NUMBER 1-
5, EMPLOYED AS POLICE OFFICERS BY THE CITY OF ELMIRA, AND SHERIFFS BY THE
COUNTY SHERIFF'S DEPARTMENT, WHOSE ACTUAL NAMES AND IDENTITIES ARE
UNKNOWN AT THIS TIME,
Defendants.
___________________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NEW YORK
___________________________
Before: LEVAL, CHIN, and PÉREZ, Circuit Judges.
___________________________
Appeal from a judgment of the United States District Court for the
Western District of New York (Frank P. Geraci, Jr., Judge) dismissing plaintiff-
appellant's amended complaint asserting that his civil rights were violated when
(1) he was subjected to a strip search upon his admission to the Chemung County
Jail as a misdemeanor arrestee, and (2) his release was delayed following the
posting of his bail. The district court granted summary judgment in favor of
defendants-appellees, holding that (1) the search was constitutional and the
searching officer was entitled to qualified immunity, and (2) the two-hour delay
in plaintiff-appellant's release did not rise to the level of a constitutional
violation.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
___________________________
CHRISTOPHER M. MURPHY, pro se, Bath, NY.
KAYLA A. ARIAS (Paul Andrew Sanders, on the
brief), Barclay Damon LLP, Rochester, NY,
for Defendants-Appellees.
___________________________
CHIN, Circuit Judge.
On June 5, 2014, plaintiff-appellant Christopher Murphy was sitting
on a bus when police officers boarded the bus, removed him, and arrested him
on a misdemeanor bench warrant. Murphy, then 67 years old, was a resident of
2
the City of Elmira (the "City"), in Chemung County (the "County"), New York.
Murphy was taken to the County Jail, where an officer subjected him to a visual
body cavity strip search. In addition, although Murphy's girlfriend promptly
posted his bail, his release was delayed about two hours.
Murphy sued the County, the City, and officers in the County
Sheriff's Department and City Police Department in the Western District of New
York pursuant to 42 U.S.C. § 1983, claiming that the strip search and the delay in
his release violated his constitutional rights. The district court (Geraci, J.)
dismissed the claims against the City and County at the outset of the case and
eventually granted summary judgment dismissing the claims against the
individual defendants as well, holding that (1) the search was constitutional and
the searching officer was entitled to qualified immunity, and (2) the two-hour
delay in his release did not rise to the level of a constitutional violation. Murphy
appeals the dismissal of the claims against the individual defendants.
We AFFIRM in part, VACATE in part, and REMAND for
further proceedings.
BACKGROUND
Because this appeal arises from a grant of summary judgment, we
recite the facts in the light most favorable to Murphy, the non-moving party, and
3
draw all reasonable inferences in his favor. See Guan v. City of New York, 37 F.4th
797, 804 (2d Cir. 2022).
I. The Facts
On the morning of June 5, 2014, Murphy was sitting on a bus at the
County Transportation Center in Elmira, New York. The bus was scheduled to
depart at 9 a.m., and Murphy was planning on taking it some twenty miles to
Sayre, Pennsylvania, where he had four medical appointments scheduled. Before
the bus could leave, however, police officers arrived and asked Murphy to
disembark. 1 Once the officers confirmed his identity, they handcuffed him,
placed him in a police car, and took him to the Elmira City Hall. 2 The officers
arrested Murphy pursuant to an "active bench warrant" issued by the Elmira City
Court charging him with the offense of maintaining a "structure unfit for human
occupancy" in violation of § 107.1.3 of the New York State Property Maintenance
Code, as well as "lesser offense(s)" of violating the Property Maintenance Code
1 The City Police Department had received an "anonymous tip" that Murphy was
at the County Transportation Center. Doc. 67-5 at 1. References to "Doc." in this
opinion are to materials filed on the district court's docket in Murphy v. County of
Chemung et al., W.D.N.Y. No. 17-cv-6339.
2 At his deposition, Murphy testified that the officers took him to "the police
station." Doc. 67-10 at 10. The Police Department and the Elmira City Court were both
located at City Hall.
4
and the New York State Fire Code. Docs. 67-5 at 1; 67-1 at 1. These "[c]ode
violations" relating to Murphy's home had been charged in a "misdemeanor
complaint." Doc. 67-10 at 13.
At City Hall, the officers put a chain around Murphy's waist before
taking him to court. They placed him in a room outside the courtroom and, at
approximately 9:45 to 10 a.m., they brought him before Judge Steven W. Forrest
of the Elmira City Court. Murphy's girlfriend, Barbara Camilli, was sitting in the
courtroom. Judge Forrest set bail at $750 cash or a $1,500 surety bond, and
ordered that Murphy remain in custody until he made bail or until 1 p.m., when
he was to return to court. Murphy advised the court that he only had $400 in his
possession and asked the court to lower the bail to that amount. The court
denied the request and told Murphy that, unless he made bail, he would remain
in custody until 1 p.m. Hence, as confirmed by the Securing Order signed by the
court, Murphy was remanded to the custody of the County only until he
returned to court at 1 p.m. or until he posted bail, whichever came first.
See Doc. 67-1. While he was still in the courtroom, Murphy asked Camilli to go
to an ATM to get the balance of the money he needed to make bail.
Murphy was taken from the courtroom downstairs, back to "the
Elmira police station proper," and placed into a "small room." Doc. 67-11 at 16.
5
He was not fingerprinted, photographed, or processed at that point. After
waiting there for about five minutes, he heard Camilli, outside the room, saying,
"I'm here with his bail." Id. at 23-24. Although he could not see what was
happening, Murphy heard a male police officer tell Camilli that because Murphy
was in the Sheriff's custody, he could not be released from the Police
Department, but had to be taken to the County Jail, and that she had to go there
to bail him out.
After about another twenty minutes, Murphy was transported by
van from City Hall to the County Jail, a short ride away. He was put into a
holding cell, and after five or ten minutes an officer, Gunderman, fingerprinted
and photographed him. The fingerprinting took a while because Gunderman
was having trouble with the process. As Murphy was being fingerprinted,
Gunderman said to him "[y]our bail's sitting out there and we're going to cut you
loose" or "[w]e've got to cut you loose." Id. at 50. Gunderman also said that
Camilli -- who was attempting to post Murphy's bail and secure his release -- was
"making a real fuss, making a real commotion" about the delay. Id. at 51.
Murphy's impression was that he would be released "immediately." Id.
Murphy was then placed into a second holding cell, where a young
man was already being detained. After about an hour, and about an hour before
6
Murphy was due back in court, the Booking and Admissions Officer --
defendant-appellee William Washburn -- removed him from the cell. Washburn
brought Murphy to a small room and conducted a visual body cavity search,
requiring Murphy to disrobe, lift his scrotum, and spread his buttocks. 3
Washburn did not touch Murphy during the search, which lasted around
ten minutes. 4
After the search was completed, Washburn escorted Murphy out of
the search room. Washburn gestured to other officers with his thumb and
forefinger, which Murphy understood as mockingly connoting that he had a
small penis. Murphy was then brought back to the holding cell. After ten or
fifteen minutes, officers took him to a different area for questioning, where he
was processed; deputies asked him personal questions for another ten or fifteen
3 A "visual body cavity search" is the inspection of a person's body cavities
without contact, such as by having the person manipulate his anatomy, bend over, or
squat and cough. It is more intrusive than a "strip search," which requires a person to
remove his clothes for a more cursory inspection, but less intrusive than a "manual body
cavity search," which entails physical inspection of body cavities. Gonzalez v. City of
Schenectady, 728 F.3d 149, 158 (2d Cir. 2013). Because the distinction between these
categories is not here material to our decision, we sometimes refer to the search as
simply a "strip search," following the language used in the discovery materials and by
the district court.
4 As we discuss below, Washburn denies any involvement in the strip search. In
reviewing the district court's grant of summary judgment, however, we view the
disputed facts in the light most favorable to Murphy, who testified at his deposition
that Washburn conducted the search.
7
minutes, with one or two of the deputies typing into a computer. During the
questioning, Murphy repeatedly asked when he would be released, noting that
his bail had been posted. Murphy received no response, except from one deputy
who said "Well, we've got to take you to court at 1:00." Doc. 67-11 at 68.
At least two or three times, in the presence of other deputies,
Gunderman said "[t]his guy's bail's out there. We've got to cut him loose." Id. at
62. Washburn responded: "No. We're not done with him yet. He's not going
anywhere. He's going to sit in my jail for a while." Id. at 61. Washburn made
comments to this effect both before and after the strip search.
After the questioning was completed, Murphy was returned to the
holding cell. Shortly thereafter, he was released, without ever entering the jail's
general population. At that point, it was close to 1:00, and so Murphy,
accompanied by Camilli, walked directly over to court to appear before
Judge Forrest.
At the time, strip searches in the County were governed by rules set
forth in a policy numbered C-110 (the "Policy"), which bore the subject line
"Admitting of Inmates into the Facility" and was produced in discovery. The
Policy provides, inter alia, that "only those inmates that present a reasonable
suspicion for being strip-searched will be strip-searched. All other new
8
admissions that do not meet these criteria will be pat searched only." Doc. 66-9
at 2. The Policy also requires that, if a strip search is conducted, "a report will be
made" setting forth (1) the reason(s) for the search; (2) the search's time, date, and
location; (3) the supervisor or officer-in-charge who authorized the search; and
(4) the officer who conducted the search. Id. at 2-3.
The strip search of Murphy was reported on a form, also produced
during discovery, entitled "Strip Search Justification Sheet" (the "Justification
Sheet"). It notes the date and time of the search (June 5, 2014, at noon) and lists
Washburn as the "Search Officer." Doc. 66-8 at 2. In the space reserved for the
"[e]xplanation of the grounds or reasons for conducting a strip search," the form
states only "per Post 1." Id. The form does not name any supervisor or officer
who authorized the search; rather, the fields for "finding/result of search," the
"Watch Commander's Signature," badge number, date and time, and an
additional space for "[c]omments" are all blank. Id.
II. The Proceedings Below
Murphy initiated this lawsuit on June 1, 2017. See Doc. 1. In his
amended complaint, Murphy alleges that the individual defendants -- Washburn,
other County employees, and several Elmira police officers -- violated his federal
constitutional rights by subjecting him to an unjustified strip search and delaying
9
his release after Camilli posted his bail. See generally Doc. 7. A longtime resident
of Elmira, Murphy contends he was targeted for harassment because of his
contentious relationship with the City and County, which included prior
legal disputes.
In his deposition, Murphy identified Washburn as the officer who
conducted the strip search. Although Washburn was not deposed, during
discovery, he submitted an affidavit stating that he had neither conducted the
strip search nor directed that it be conducted. Rather, he identified himself as the
"Booking/Admissions Officer," meaning he had "merely recorded that the strip
search took place as part of the booking process." Doc. 66-7 ¶ 15. According to
Washburn, the notation "per Post 1" on the Justification Sheet meant that some
supervisory officer -- he did not identify whom -- had authorized the search.
Id. ¶ 16. Washburn contended that the strip search "was necessarily based on
reasonable suspicion" because the Policy required it to be; moreover, Washburn
averred, neither he nor any other officer "directed to perform the search[] would
have had the discretion to disobey the order." Id. ¶¶ 17-18. On this basis,
Washburn argued, even assuming "for purposes of this motion only" that he had
conducted the search, he "would have lacked discretion as to whether or not to
10
perform" it because it "would have occurred solely based upon a direct order
from a superior pursuant to Chemung County Jail policy." Id. ¶ 19.
Washburn's affidavit also addressed the alleged delay in releasing
Murphy. According to Washburn, detainees cannot be released until the booking
process is completed because the County's computer system will not accept bail
payments until all charges have been entered near the end of the
booking process.
The district court granted summary judgment to defendants.
Murphy v. Hughson, No. 17-cv-6339 (FPG), 2021 WL 5199938, at *1 (W.D.N.Y.
Nov. 9, 2021). After ruling that several of the named County defendants were
not personally involved and thus could not be liable under § 1983, see id. at *2-3,
the court addressed Murphy's delay and strip-search claims, see id. at *3-5.
As to the delay in his release, the court determined that the City
defendants did not violate Murphy's constitutional rights and were, in any case,
entitled to qualified immunity because under New York Criminal Procedure Law
§ 520.15, the court and County, not the City, are responsible for accepting bail.
Id. at *5. The court held that the County defendants were also entitled to
summary judgment: They had not violated Murphy's constitutional rights
11
because the delay of approximately two hours while Murphy was being
processed did not shock the conscience. Id. at *2-4.
Finally, the district court held that the strip search did not violate
Murphy's Fourth Amendment right to be free from unreasonable searches and
seizures. Although the Justification Sheet did not indicate what circumstances
justified strip searching Murphy, the district court reasoned that, under Florence
v. Board of Chosen Freeholders of Burlington County, 566 U.S. 318 (2012), no
reasonable suspicion was required. Id. at *4. Rather, the court concluded,
Florence compelled deference to Washburn's conduct absent "substantial
evidence" of an "exaggerated" response, which Murphy had not offered.
Id. (quoting Florence, 566 U.S. at 328). Moreover, the district court determined
that Washburn would, regardless, be entitled to qualified immunity because
"there is no question that an officer of reasonable competence would have
thought that conducting a strip search of a new inmate at the direction of a
superior was constitutional." Id. at *5 (citing Vasquez v. Maloney, 990 F.3d 232, 241
(2d Cir. 2021)). In doing so, the district court apparently concluded that if
Washburn conducted the search, he would have done so at the direction of a
superior officer. Id.
12
Judgment was entered accordingly, and this appeal followed. 5
DISCUSSION
We review a grant of summary judgment de novo, viewing the
evidence in the light most favorable to the nonmoving party to determine
whether genuine issues of material fact preclude judgment as a matter of law.
Trans Sport, Inc. v. Starter Sportswear, Inc., 964 F.2d 186, 188 (2d Cir. 1992); see Fed.
R. Civ. P. 56(a). A genuine issue of material fact exists if the record, and
appropriate inferences drawn from it, would permit a reasonable jury to return a
verdict for the nonmoving party. Williams v. Utica Coll. of Syracuse Univ., 453 F.3d
112, 116 (2d Cir. 2006).
The district court premised its decision in part on qualified
immunity. Where properly asserted, qualified immunity bars claims for
5 Murphy has not appealed the district court's grant of summary judgment in
favor of defendants-appellees Hughson and Hillman. He does challenge the district
court's denial of his motion for further discovery (filed after defendants had moved for
summary judgment), but we perceive no abuse of discretion in the challenged ruling.
See L.S. v. Webloyalty.com, Inc., 954 F.3d 110, 117 (2d Cir. 2020) ("We review the district
court's decision to forgo further discovery for abuse of discretion."). We also agree with
the district court that summary judgment was properly granted to defendants-appellees
Howe, Gunderman, Spencer, and Strong because, on this record, there is no genuine
dispute of material fact as to their lack of personal involvement in the relevant
misconduct. See Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (requiring personal
involvement in the alleged constitutional deprivation for an award of damages under
§ 1983). We therefore affirm these aspects of the district court's judgment.
13
violations of constitutional rights unless "(1) the official violated a statutory or
constitutional right, and (2) that right was clearly established at the time of the
challenged conduct." Matzell v. Annucci, 64 F.4th 425, 434 (2d Cir. 2023). "A right
is clearly established" if "every reasonable official would have understood that
what he is doing violates that right" and existing precedent places the question
"beyond debate." Rivas-Villegas v. Cortesluna, 595 U.S. 1, 5 (2021) (per curiam)
(internal quotation marks omitted) (first quoting Mullenix v. Luna, 577 U.S. 7, 11
(2015) (per curiam); and then quoting White v. Pauly, 580 U.S. 73, 79 (2017) (per
curiam)). Each defendant bears the burden of establishing that he is entitled to
qualified immunity. See Vincent v. Yelich, 718 F.3d 157, 166 (2d Cir. 2013).
We first address Murphy's claim about the strip search and then turn
to his claim about the delay in his release.
I. The Strip-Search Claim
A. Applicable Law
Prior to the Supreme Court's decision in Florence, we had long held
that misdemeanor detainees could not be subjected to strip searches without
reasonable suspicion. In Weber v. Dell, 804 F.2d 796 (2d Cir. 1986), for instance,
we determined that "the Fourth Amendment precludes [jail] officials from
performing strip/body cavity searches of arrestees charged with misdemeanors
14
or other minor offenses unless the officials have a reasonable suspicion that the
arrestee is concealing weapons or other contraband based on the crime charged,
the particular characteristics of the arrestee, and/or the circumstances of the
arrest." Id. at 802; see also Shain v. Ellison, 273 F.3d 56, 59, 62-66 (2d Cir. 2001)
(finding it "clearly established" that "corrections officers in a local correctional
facility could not perform a strip search . . . on an individual arraigned on
misdemeanor charges unless the officers had reasonable suspicion that the
individual possessed contraband or weapons"); Wachtler v. County of Herkimer, 35
F.3d 77, 81 (2d Cir. 1994) ("We have held that the Fourth Amendment
proscription of strip-searches of misdemeanor arrestees without reasonable
suspicion is clearly enough established to preclude the defense of qualified
immunity."). These decisions were largely aligned with our holdings about strip
searches that did not involve jails or prisons -- in other words, situations in
which the security concerns of a jail or prison facility were not at issue. See, e.g.,
Hartline v. Gallo, 546 F.3d 95, 98-103 (2d Cir. 2008) (finding unconstitutional a
strip search of a misdemeanor arrestee at a police station, conducted pursuant to
a department policy but without reasonable suspicion, and denying qualified
immunity under this Court's clearly established law).
15
In Florence, the Supreme Court considered a policy at the "largest
county jail in New Jersey" that required all arriving detainees to undergo a visual
body cavity search before entering the jail's general population, "regardless of the
circumstances of the arrest, the suspected offense, or the detainee's behavior,
demeanor, or criminal history." 566 U.S. at 324-25. In upholding the policy, the
Supreme Court reemphasized "the importance of deference to correctional
officials" and the related rule that "a regulation impinging on an inmate's
constitutional rights must be upheld 'if it is reasonably related to legitimate
penological interests.'" Id. at 326 (quoting Turner v. Safley, 482 U.S. 78, 89 (1987)).
Synthesizing its prior decisions, the Court explained that "correctional officials
must be permitted to devise reasonable search policies to detect and deter the
possession of contraband in their facilities," id. at 328 (citing Bell v. Wolfish, 441
U.S. 520, 546 (1979)), and rejected a rule that would require different, less-
invasive policies for misdemeanor detainees, on the ground that they may be just
as likely to smuggle illicit or dangerous contraband into jails, id. at 334-36. Thus,
the Court held, absent "substantial evidence" of an "exaggerated" response to
penological concerns, the "security imperatives involved in jail supervision
override the assertion that some detainees must be exempt from the more
invasive search procedures at issue absent reasonable suspicion of a concealed
16
weapon or other contraband." Id. at 330 (citing Block v. Rutherford, 468 U.S. 576,
584-85 (1984)).
As we have recognized, see Gonzalez v. City of Schenectady, 728 F.3d
149, 161 (2d Cir. 2013), Florence partly abrogated our prior case law, which had
premised the legitimacy of intake policies, and thus penological decision-
making, on the distinction between misdemeanor and felony detainees. Unless
there is "substantial evidence" of an "exaggerated" response, we must now defer
to corrections policies that apply to misdemeanor and felony detainees alike.
Florence, 566 U.S. at 330. Specifically, under Florence, "a blanket policy of
conducting visual body cavity searches on new inmates [is] constitutional, even
for misdemeanor arrestees where there is no reason to suspect the arrestee would
have contraband." Gonzalez, 728 F.3d at 160.
B. Application
The district court concluded that, even assuming Washburn
conducted the strip search, he was entitled to summary judgment. First, the
district court reasoned that the search did not violate the Constitution because
"Florence requires courts to defer to corrections officials absent 'substantial
evidence in the record' to show that the officials have 'exaggerated their
response,'" and Murphy had presented "no such evidence here." Murphy, 2021
17
WL 5199938, at *4 (quoting Florence, 566 U.S. at 328). Second, the district court
held that even if Washburn had conducted an unconstitutional search, he was
protected by qualified immunity because he was acting "at the direction of a
superior." Id. at *5. We conclude the district court erred in both respects.
1. Florence
Florence does not dictate the result of this case because Murphy is
not challenging a prison-wide policy on its face or as applied to him; rather, his
claim concerns actions taken by an individual officer acting on his own whim
and contrary to established jail policy. As the Third Circuit has observed,
Florence's "'legitimate penological interest' test . . . is ill-suited for assessing
unauthorized and malicious conduct on the part of prison guards" in "violation
of the applicable regulations." Chavarriaga v. N.J. Dep't of Corr., 806 F.3d 210, 231
(3d Cir. 2015).
Defendants do not -- and, in view of the Policy's clear language,
cannot -- claim there was a policy requiring that every detainee admitted to the
County Jail be strip searched or a policy calling for a strip search of a prisoner
with Murphy's characteristics. Nor have they asserted a legitimate penological
justification for subjecting Murphy to such a search. Instead, on the facts most
favorable to Murphy, which we must accept for these purposes, Murphy was
18
strip searched because of an individual officer's ad hoc decision. We conclude
that, in these circumstances, the standard set forth in our pre-Florence case law
continues to apply: If a misdemeanor arrestee entering a prison is subjected to
an ad hoc strip search, without reasonable suspicion, the Fourth Amendment is
violated. See, e.g., In re Zarnel, 619 F.3d 156, 168 (2d Cir. 2010) (observing that this
Court is bound to follow prior precedent unless an intervening Supreme Court
decision "casts doubt" on it (internal quotation marks and citation omitted)). 6
Florence did not hold that individual actions, ungrounded in legitimate
penological purposes and in contravention of a jail's policy, are exempt from the
Constitution's requirement that "a search be justified as reasonable under the
circumstances." Weber, 804 F.2d at 800; see also Sloley v. VanBramer, 945 F.3d 30, 39
(2d Cir. 2019) (requiring police-station visual body cavity searches of arrestees to
be supported by reasonable suspicion, regardless of whether the arrest is for a
6 Nor does Florence foreclose any claim Murphy may have under the New York
Constitution. Although his amended complaint invokes only the United States
Constitution, pro se pleadings must be liberally construed to raise the strongest claims
they suggest, including parallel state law claims when state law provides a stronger
legal foundation for the allegations pleaded. See McLeod v. Jewish Guild for the Blind, 864
F.3d 154, 157-58 (2d Cir. 2017) (per curiam). In a prior summary order, we observed
that Florence did not govern a claim brought under Article 1, Section 12 of the New York
Constitution, which contains New York's counterpart to the Fourth Amendment. See In
re Nassau Cnty. Strip Search Cases, 639 F. App'x 746, 749 (2d Cir. 2016) (summary order).
On remand, the district court should consider Murphy's search claim as arising under
both the federal and state constitutions.
19
felony or misdemeanor). 7 Absent an actual penological justification or
institutional policy, our prior case law on the constitutional boundaries of
permissible strip searches continues to apply.
Here, the jail did not have a policy calling for strip searching
Murphy in the circumstances, nor did it have a legitimate penological interest for
doing so. Moreover, the Policy was consistent with our pre-Florence law,
permitting strip searches only upon individualized reasonable suspicion. On the
record below, a reasonable jury could surely conclude there was no
constitutionally cognizable reason justifying the strip search. As the district
court recognized, the Justification Sheet did not provide "any specific reasonable
suspicion to justify the strip search." Murphy, 2021 WL 5199938, at *4. Indeed,
Murphy was a 67-year-old man, who was sitting on a bus a little before 9 a.m.
He was arrested on a misdemeanor warrant -- not for weapons or drug
violations, but for home maintenance and fire code infractions. Moreover, his
7 As we observed in Sloley, "[v]isual body cavity searches are invasive and
degrading, occasioning a serious invasion of privacy and working a significant harm to
a person's bodily integrity. . . . They '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 . . . done while the person arrested is required to assume degrading and
humiliating positions.'" 945 F.3d at 38 (quoting Swain v. Spinney, 117 F.3d 1, 6 (1st
Cir. 1997)).
20
$750 bail had been or was being posted; he was to be released or reappear in
court no later than 1 p.m., only about an hour after the search took place; and he
was not likely to be housed in the jail's general population. In these
circumstances, there was little -- if any -- reason to suspect he was hiding a
weapon or drugs inside his body cavity or that he would bring contraband into
the jail's general population.
At no point in this litigation have defendants purported to identify a
legitimate penological purpose for the strip search. Furthermore, there was
evidence that Washburn's actions were motivated by malice. He mocked
Murphy about the size of his penis. And when another officer noted that
Murphy's bail was "out there" and they needed "to cut him loose," Washburn
responded in a manner that could be understood to exhibit malice by saying that
Murphy would not be going anywhere and was going to sit in "my" jail "for a
while." Doc. 66-4 at 60-61. On these facts, a reasonable jury could readily
conclude that Washburn was acting not to further legitimate penological
concerns but purely out of vindictiveness.
2. Qualified Immunity
The district court held that Washburn was protected by qualified
immunity because there was "no question that an officer of reasonable
21
competence would have thought that conducting a strip search of a new inmate
at the direction of a superior was constitutional." Murphy, 2021 WL 5199938, at *5
(citing Vasquez, 990 F.3d at 241). We conclude that genuine issues of fact were
presented as to whether Washburn was protected by qualified immunity.
We have held that "[p]lausible instructions from a superior or fellow
officer support qualified immunity where, viewed objectively in light of the
surrounding circumstances, they could lead a reasonable officer to conclude that
the necessary legal justification for his actions exists." Vasquez, 990 F.3d at 241
(citation omitted). But that test still requires a record of "plausible" instructions
that are objectively reasonable, and this record falls short.
First, the record is muddled as to whether Washburn was in fact
following the directions of a superior officer. Washburn denies conducting the
strip search and argues only hypothetically that if he did, he would have been
following orders. Doc. 66-7 ¶ 19 ("Assuming, for purposes of this motion only,
that it was me that conducted the strip search, I would have lacked discretion as
to whether or not to perform the strip search, and the strip search would have
occurred solely based upon a direct order from a superior pursuant to Chemung
County Jail policy."). Washburn does not state that any order was actually given,
and no evidence has been provided as to the identity of any officer who might
22
have given an order for the search. Moreover, Washburn's self-serving testimony
that the entry "per Post 1" on the Justification Sheet meant that a superior officer
had ordered the search was not necessarily believable.
Second, on this record, a reasonable jury could find that Washburn
was responsible, in whole or in part, for the decision to strip search Murphy. The
Justification Sheet, which was supposed to set forth the reason for the search and
identify the officer who authorized it, does not provide any reason for the search,
does not reveal who (if anyone) authorized the search, and provides no detail
about how the search was authorized other than the cryptic designation "per Post
1." Doc. 66-8 at 2. Contrary to Washburn's assertion that he did not conduct the
search, the Justification Sheet identifies him as the "Search Officer." Id. And
Washburn's conclusory assertion that, if he conducted the search, he was merely
following orders, does not establish or demonstrate as a matter of law that any
orders were actually given, suggest that if given they were reasonable or
plausible, or show that Washburn was powerless to question them. The absence
of reasonable suspicion for the search, Washburn's failure to properly document
the search or indicate which superior officer approved it, the crude gesture he
made after the search, and his comments about Murphy sitting in "my" jail "for a
while" despite bail having been posted are all circumstances from which a
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reasonable jury could infer that Washburn was acting of his own volition and not
pursuant to the orders of a superior.
Vasquez is not to the contrary. In that case, we rejected the officers'
qualified immunity argument at summary judgment because they asserted they
received only "guesswork" from a fellow officer about the basis for detaining the
plaintiff, yet the record did not show they had done anything to "corroborate that
guess." 990 F.3d at 242. Here, the conclusory and hypothetical statements in
Washburn's affidavit do not establish that even "guesswork" was involved.
To sum up, on this record, a reasonable jury could find that, instead
of simply following the orders of a superior officer, Washburn was a party to
harassment and demeaning conduct culminating in the search -- conduct that he,
and other reasonable officers, should have known had no legitimate penological
purpose and was therefore unconstitutional. A jury may find otherwise, but in
light of these disputed material facts, the district court erred when it granted
summary judgment on Murphy's strip search claim.
II. The Delay Claim
Because Murphy was a pretrial detainee who had already been
arraigned, the district court properly assessed his delay claim under the
Fourteenth Amendment's substantive due process guarantee. See Edrei v.
24
Maguire, 892 F.3d 525, 533 (2d Cir. 2018) (confirming pre-trial detainees "rely on
the constitutional guarantee of 'due process'" under the Fourteenth Amendment,
while arrestees rely on the Fourth Amendment). Although we have not
previously addressed the precise issue Murphy's delay claim presents, other
Circuits have recognized that substantive due process concerns are implicated
when a detainee's release is delayed after the legal basis for detention has ended.
See, e.g., Goldberg v. Hennepin County, 417 F.3d 808, 811 (8th Cir. 2005) ("Claims
alleging the excessive detention of one who has established the right to be
released are typically analyzed under the Due Process Clause."); Berry v. Baca,
379 F.3d 764, 773 (9th Cir. 2004) ("[P]laintiffs possessed a constitutional right to
freedom from imprisonment a reasonable time after they were judicially
determined to be innocent of the charges against them.").
The district court evaluated Murphy's delay claim under the
framework articulated in Lynch v. City of New York, 335 F. Supp. 3d 645 (S.D.N.Y.
2018), which also involved post-bail detainment. See Murphy, 2021 WL 5199938,
at *3. In Lynch, plaintiffs argued that New York City's "procedures for bail
payment and release result[ed] in unreasonably lengthy delays in permitting bail
to be posted and subsequently releasing detainees for whom bail ha[d] been
paid." 335 F. Supp. 3d at 648. The plaintiffs alleged, inter alia, that the city's delay
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in releasing them after they had already paid their bail was unjustified and
resulted in their over-detention in violation of their right to substantive due
process. See id. at 648-49. The court first reiterated that, to state a substantive
due process claim, plaintiffs had to allege (1) a valid liberty interest (2) that the
defendants infringed in an arbitrary or irrational manner. Id. at 654 (citing Harlen
Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 503 (2d Cir. 2001)). It then noted that
plaintiffs had the burden to sufficiently allege that the city's action was "arbitrary
in the constitutional sense," i.e., that it "shocks the conscience." Id. (quoting
O'Connor v. Pierson, 426 F.3d 187, 203 (2d Cir. 2005)). The court denied the
defendants' motion to dismiss, concluding that the three plaintiffs -- who had
been subjected to delays of 9 hours, 18 hours, and 23 hours in their release after
the posting of their bail -- had stated a substantive due process claim. See id.
at 648-49.
The district court was correct to apply Lynch's framework to
Murphy's delay claim. Lynch properly recognized that claims for unlawful
pretrial detention arise under the Fourteenth Amendment, see id. at 653, and
accurately stated the elements of a substantive due process claim, see id. at 654.
Moreover, the court in Lynch correctly summed up our holdings as to when
executive government action shocks the conscience: It "depends on the state of
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mind of the government actor and the context in which the action was taken."
See id. (quoting O'Connor, 426 F.3d at 203); see also Edrei, 892 F.3d at 536 ("[T]he
central inquiry has always been whether the government action was rationally
related to a legitimate government objective.").
To be certain, "[t]he shocks-the-conscience test is necessarily
imprecise." O'Connor, 426 F.3d at 203. We have not previously decided what
degree of delay in a detainee's release on bail is so egregious as to shock the
conscience, but we are mindful that both the Supreme Court and other Circuits
have repeatedly held that "[i]n the Fourteenth Amendment context . . . 'there is,
of course, a de minimis level of imposition with which the Constitution is not
concerned.'" Crocker v. Beatty, 995 F.3d 1232, 1251 (11th Cir. 2021) (quoting Bell,
441 U.S. at 539 n.21)). Although the Supreme Court has rejected such a de
minimis rule as to whether brief searches or seizures that are conducted without
reasonable suspicion after an officer has completed a lawful traffic stop violate
the Fourth Amendment, see Rodriguez v. United States, 575 U.S. 348, 354 (2015), the
Court expressly cabined that decision to the distinctive setting of traffic stops,
see id. at 356-57. Courts continue to dismiss other constitutional claims brought
by detainees when the alleged violations are de minimis. See Crocker, 995 F.3d at
1248-52; cf. Hill v. Wetzel, No. 21-3009, 2022 WL 5422329 (3d Cir. Oct. 7, 2022)
27
(vacating the dismissal of a case because plaintiff had pled more than de minimis
physical injury).
To defeat summary judgment, Murphy was required to present
evidence that a reasonable jury could find that Washburn's actions shocked the
conscience. See O’Connor, 426 F.3d at 203. Although it is a close call, we
conclude that a reasonable jury could so find.
First, construing the facts and reasonable inferences in Murphy's
favor, a reasonable jury could find that his release was unnecessarily delayed for
as much as two hours. Bail was set around 10 a.m., Camilli presented the bail
money at the County Jail by approximately 10:30 a.m., and yet Murphy was not
released until shortly before 1 p.m. While some of this time was legitimately
related to the time needed to fingerprint, photograph, and process Murphy, a
reasonable jury could find that most of it was unnecessary. Of course, factual
issues exist as to precisely how much of the delay was required by the booking
process and how much was unnecessary.
Second, the delay was not just a matter of the loss of two hours. To
the contrary, Murphy was subjected to two hours of distress and uncertainty,
and a jury could find that his release was delayed because Washburn decided to
subject him to a degrading strip search. See Sloley, 945 F.3d at 38 ("Visual body
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cavity searches are invasive and degrading, occasioning a serious invasion of
privacy and working a significant harm to a person's bodily integrity.").
Third, even if a two-hour delay caused by the inefficiencies of a
bureaucratic process without aggravating evidence could not sustain a judgment
in favor of a plaintiff, a reasonable jury could find for a plaintiff when the
evidence showed that the two-hour delay was occasioned solely by an official's
malicious vindictiveness. See O'Connor, 426 F.3d at 203 (vacating summary
judgment because record supported reasonable inferences that defendant's
actions were calculated to injure or spite plaintiff which, if true, would render the
behavior conscience-shocking). Again, construing the record in Murphy's favor,
Gunderman cautioned Washburn two or three times that Murphy's bail was "out
there" and that he had to be released. Yet, Washburn ignored Gunderman and
deliberately kept Murphy in "my" jail "for a while." Moreover, Washburn
subjected Murphy to a strip search gratuitously, without reasonable suspicion, in
contravention of the Policy. Washburn's words and his crude gesture suggest
that his actions were not merely negligent but, instead, that he was actively
hostile. See id. (noting that while "mere negligence will never give rise to a
substantive due process violation," due process liability can attach where an
officer "acted with a purpose to cause harm").
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Of course, there will be instances where a two-hour delay in release
following the posting of bail is a de minimis intrusion that does not rise to the
level of a constitutional violation. But here, a jury could find that the strip search
was not rationally related to any legitimate governmental purpose and that
Washburn acted deliberately and vindictively. Cf. County of Riverside v.
McLaughlin, 500 U.S. 44, 56 (1991) (observing, in Fourth Amendment context, that
delays of less than 48 hours may nevertheless be unconstitutional if motivated by
"delay for delay's sake" or "ill will"); Lynch, 335 F. Supp. 3d at 648-49, 655
(denying motion to dismiss Fourteenth Amendment claim for delays of 9, 18, and
23 hours after posting of bail, where plaintiffs plausibly alleged that defendants
acted with deliberate indifference by delaying release until "a critical mass of
bailed-out detainees [had been] gathered"). We conclude in these circumstances
that a reasonable jury could find that the delay in Murphy's release shocked
the conscience.
CONCLUSION
For the reasons stated above, we AFFIRM the district court's grant of
summary judgment to the individual defendants other than Washburn, we
VACATE the grant of summary judgment as to Washburn on both Murphy's
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search and delay claims, and we REMAND for further proceedings consistent
with this opinion.
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