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Strip searches of detainees being held on misdemeanor charges must still be based on a “reasonable suspicion” that the person being searched has a weapon or other contraband, the 2nd U.S. Circuit Court of Appeals has ruled. A divided court said that the standards for a strip search of a misdemeanor detainee in jail remain more exacting than that for cavity searches in prison, which under Supreme Court precedent need only be justified by a showing that reasonably related to a legitimate penological interest. The decision in Shain v. Ellison, 00-7061, included a dissent from Judge Jose A. Cabranes, who said the majority’s decision was based on the “artificial, untenable distinction between ‘prisons’ and ‘jails,’ and creates a Circuit split where there was none — a Circuit split that seems to call out for eventual resolution by the Supreme Court.” The majority, in an opinion authored by Judge Rosemary S. Pooler, made its ruling on Nassau County’s appeal from New York Eastern Senior District Judge Leonard D. Wexler’s finding that the strip search policy at the Nassau County Correctional Center was unconstitutional. Accused of threatening his wife, attorney Roy Shain was taken to the NCCC in 1995 after being arraigned on a family offense petition in Family Court. An officer at the facility ordered Mr. Shain to strip for a visual cavity search; he was also strip-searched the next morning before he was returned to family court. The petition was later dropped by Shain’s wife. In addition to seeking damages for false arrest, false imprisonment and unconstitutional search of his person, Shain’s suit in the Eastern District sought a declaration that the county’s strip search policy was unconstitutional and its enforcement should be enjoined. After dismissing the false arrest and other claims, Judge Wexler granted partial summary judgment for Mr. Shain, ruling the strip search policy was unconstitutional, and that Nassau County Sheriff Joseph Jablonsky was not entitled to qualified immunity. But at trial, the jury refused to award Mr. Shain damages for the strip search, and Wexler denied the attorney’s motion for a new trial. On appeal, the county argued that Wexler failed to give proper deference to security concerns at the facility, and that two 2nd Circuit cases cited by the judge should not have governed the case because the strip search policy was limited to arrestees who had been judicially remanded. SIMILAR POLICY The strip search issue drew amici curiae from the New York City Department of Correction, which has a similar policy, and class counsel in two cases brought by tens of thousands of detainees challenging New York City’s and Nassau County’s policies. Judge Pooler said amici requested that the court not retreat from its holdings in the two 2nd Circuit cases, Walsh v. Franco, 849 F.2d 66 (2d Cir. 1988) and Weber v. Dell, 804 F.2d 796 (2d. Cir.1986). In Weber, the court held the Fourth Amendment precluded strip or body cavity searches unless officials have a reasonable suspicion that the misdemeanor detainee is concealing weapons or other contraband. The Walsh case reaffirmed the Weber holding. Judge Pooler said one issue, raised by Judge Cabranes in dissent, was whether a line of Supreme Court cases referring to a strip search being “reasonably related to a legitimate penological interest” apply only to prisons, or whether they should also apply to jails. Judge Cabranes, she said, argued that one of those cases, Turner v. Safley, 482 U.S. 78 (1987), implicitly overruled Weber. Judge Pooler disagreed, saying the 2nd Circuit had no authority to depart from its own precedent unless overruled in banc or by the Supreme Court. The Turner case and its progeny, she said, do not purport to “address any issue other than prison regulations.” “Thus, these cases can be read consistently with Weber and its progeny by confining them to their facts and actual holdings,” Pooler said. “The dissent’s argument for ‘assuming that when the Turner Court developed the reasonably related standard, it intended for it to apply to facilities like NCCC’ may be relevant to whether the Turner line of cases should be extended to jails by the Supreme Court, but they are not relevant to the question of whether Turner overruled Weber,” Pooler said. Therefore, Pooler said, Judge Wexler correctly held that it was clearly established in 1995 that “persons charged with a misdemeanor and remanded to a local correctional facility like NCCC have a right to be free of a strip search absent reasonable suspicion that they are carrying contraband or weapons,” and that “Jablonsky was not entitled to qualified immunity.” Because Judge Wexler never explicitly granted or denied Mr. Shain’s request for an injunction blocking future enforcement of the strip search policy, and the record before the 2nd Circuit was inadequate to determine whether injunctive relief was necessary, the court remanded the case to Wexler. Judge Cabranes said he was dissenting from the majority’s holding that the “applicable standard to evaluate the constitutionality of a cavity search in a jail is ‘reasonable suspicion’ rather than ‘reasonably related to a legitimate penological interest.’ “ “As an initial matter, the distinction drawn by the majority between jails and prisons is wholly unprecedented,” Cabranes said. “The majority points to no cases that differentiate between jails and prisons in the manner that it suggests, and our sister Circuits routinely apply Turner‘s ‘reasonably related’ standard to cases involving jails.” Although the Turner Court was dealing with prison regulations, he said, “there is no indication that the Turner Court intended to depart” from the “well-settled, non-technical meaning of the word ‘prison.’ “ Judge Cabranes said that one problem with the majority’s distinction is that “it interprets the Constitution as requiring large, complex facilities such as the NCCC to be run less intelligently — and less safely — than ought to be the case.” Forcing an “artificial distinction” between prisons and jails like the NCCC, which houses 1,800 inmates on a daily basis and processes as many as 14,000 people per year, he said, “substantially limits Turner‘s reach, and removes institutions like it from the ambit of the ‘reasonably related’ standard.” Judge Robert Katzmann was with Judge Pooler in the majority. Robert L. Herbst of Herbst & Greenwald in Williston Park, N.Y., represented Mr. Shain. Paul F. Millus and Robert P. Devlin of Snitow & Cunningham represented Nassau County and Jablonsky.

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