737 F.2d 187 (2nd Cir. 1984), 1418, Security and Law Enforcement Employees, Dist. Council 82, American Federation of State, County and Municipal Employees, AFL-CIO by Clay v. Carey

Docket Nº:1418, Docket 83-7147.
Citation:737 F.2d 187
Party Name:SECURITY AND LAW ENFORCEMENT EMPLOYEES, DISTRICT COUNCIL 82, AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO, by its Treasurer William CLAY, Richard Bischert, William Lothrop, Robert Morse, George Frees, Thomas F. Lynch, Richard J. Schrade, David L. Bowser, Charles E. Gordon, Jr., Melvin L. Bullock, Benjamin Whaley and Squire
Case Date:June 08, 1984
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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737 F.2d 187 (2nd Cir. 1984)

SECURITY AND LAW ENFORCEMENT EMPLOYEES, DISTRICT COUNCIL 82,

AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL

EMPLOYEES, AFL-CIO, by its Treasurer William CLAY, Richard

Bischert, William Lothrop, Robert Morse, George Frees,

Thomas F. Lynch, Richard J. Schrade, David L. Bowser,

Charles E. Gordon, Jr., Melvin L. Bullock, Benjamin Whaley

and Squire Simpson, individually and on behalf of all others

similarly situated, Plaintiffs-Appellants,

v.

Hugh CAREY, as Governor of the State of New York, Thomas A.

Coughlin, III, as Commissioner of the New York Department of

Correctional Services, Walter Fogg, individually and as

Superintendent of Eastern Correctional Facility, Robert

Kuhlmann, individually and as Superintendent of Woodbourne

Correctional Facility, Dominick Mantello, individually and

as Deputy Superintendent of Woodbourne Correctional Facility

and Henry DeLuca, individually and as Deputy Superintendent

for Security at Arthur Kill Correctional Facility,

Defendants-Appellees.

No. 1418, Docket 83-7147.

United States Court of Appeals, Second Circuit

June 8, 1984

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Argued June 15, 1983.

As Amended July 24, 1984.

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Brian J. O'Donnell, Albany, N.Y. (Rowley, Forrest & O'Donnell, P.C., Albany, N.Y.), for plaintiffs-appellants.

Robert A. Forte, Asst. Atty. for the State of N.Y., New York City (Robert Abrams, Atty. Gen. for the State of N.Y., Judith A. Gordon, Asst. Atty. Gen. for the State of N.Y., of counsel, New York City, Melvyn R. Leventhal, Deputy First Asst. Atty. Gen. for the State of N.Y., New York City), for defendants-appellees.

Before VAN GRAAFEILAND, PIERCE and WISDOM, [*] Circuit Judges.

PIERCE, Circuit Judge:

Plaintiffs appeal from a final judgment of the United States District Court for the Southern District of New York, Robert Carter, Judge, entered January 31, 1983, dismissing plaintiffs' complaint seeking declaratory, injunctive and monetary relief for alleged deprivations of rights, privileges and immunities guaranteed by the fourth and fourteenth amendments of the United States Constitution and 42 U.S.C. Sec. 1983 (Supp. V 1981). 1

I. INTRODUCTION

It is axiomatic that, as long as convicted persons are imprisoned, guards will be required to maintain security in the institutions to which the prisoners are sentenced. It is not unexpected or surprising that some of these guards or correction officers breach security by smuggling contraband into correctional facilities. Once contraband, including drugs, money, weapons, and myriad other items, is introduced into the prison environment, the order and routine that must be maintained to achieve stability and security in these facilities is apt to be undermined and disrupted. The consequence obviously can place the lives

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and well-being of both staff and inmates in serious jeopardy. So, since guards must guard inmates, it is not rhetorical to ask, "who are to guard the guards?" 2

We are confronted herein with two specific types of warrantless disrobe searches of guards for contraband. 3 The district court used the term "strip search" in referring to an inspection of the naked body of the person searched and we will continue to use the term in that sense. The district court used the term "strip frisk search" to describe a search including a visual examination of the anal and genital areas of the person searched. We will refer to this latter type of inspection as a "visual body-cavity search" rather than a "strip frisk search" since this latter terminology tends to evoke images of touching, probing or physically intruding into the body. It is important for analytical purposes to note that none of the searches of the correction officers herein involved any touches, probes or other bodily intrusions. 4

Contrary to the district court's analysis, which established two categories of searches and hinted at another, there are three aspects of the New York State Department of Correctional Services' ("Department") search procedures that must come under constitutional scrutiny: (1) the strip searches; (2) the visual body-cavity searches; and (3) the random-search policy, which includes both strip searches and visual body-cavity searches of correction officers not suspected of bringing contraband into correctional facilities. We hold: (1) that a reasonable suspicion standard governs strip searches of correction officers and that therefore the warrantless strip searches herein did not per se violate the fourth and fourteenth amendment rights of the officers; (2) that the warrantless visual body-cavity searches of correction officers herein were unreasonable and did violate the fourth and fourteenth amendment rights of the officers; (3) that the warrantless searches based on the Department's random-search policy of correction officers not suspected of bringing contraband into the correctional facilities were unreasonable and violated the fourth and fourteenth amendment rights of those officers; and (4) that qualified immunity from liability for damages is available to those correction officials who ordered certain unreasonable strip searches, the visual body-cavity searches and the searches based on the Department's random-search policy.

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II. BACKGROUND

All persons employed by the Department as correction officers received a booklet in which the following policy statement appeared: "All persons on institution property and any employee while on duty shall be subject to search. Such search shall be supervised by a custodial employee above the rank of correction officer .... Refusal of an employee to submit to a search shall constitute grounds for preferring charges." New York State Department of Correctional Services Rule Book, Revised 1969 Sec. 4.20 (known as "Rule 4.20"). Each of the employees searched herein received at the commencement of employment a rule book containing this rule or its quite-similar successor, Rule 201.21.

Coxsackie

On June 6, 1977, John Roe, 5 a correction officer assigned to the Coxsackie Correctional Facility ("Coxsackie"), an institution within the prison system operated by the Department, was scheduled to begin work at 3:00 p.m. At approximately noontime of that day, Correction Captain Anthony Umina, the acting superintendent, received information concerning Officer Roe from a staff person and Correction Officer Vincent.

Vincent and the staff person reported that a Coxsackie inmate had a sexual encounter with Roe on June 5, 1977, and that Roe had agreed to bring the inmate marijuana or wine the following day. Captain Umina, who had known the staff person and Vincent for approximately six months, questioned the staff person about the source of his information. The staff person stated that he had received the information from the inmate, who purportedly had engaged in the sexual encounter with Roe. Based on this information, Umina decided that when Roe reported to work that day he would be searched, and accordingly Umina called the Department's Central Office in Albany and so informed it.

When Roe reported to his assignment, a correction sergeant directed him to report to Umina at the deputy superintendent's office. Roe reported to that office along with two other correction officers who were summoned randomly. When the three officers arrived at the deputy superintendent's office, Sergeant Coons informed them that they would be searched. While Roe was waiting to enter the deputy superintendent's office for the search, Sergeant Coons observed Roe place what appeared to Coons to be a marijuana cigarette on the windowsill of the outer office. It was later determined that the cigarette contained marijuana. At that point, Umina took Roe into the inner office and informed him that he would be searched pursuant to Rule 4.20. Captain Umina ordered Roe to disrobe completely to determine if there was contraband in his clothing or taped to his body. Roe was subjected to a strip search, but was not required to submit to a visual body-cavity search. No additional contraband was found.

Wallkill

On July 2, 1977, Correction Officer Bill Doe, 6 who was assigned to work at the Department's Wallkill Correctional Facility ("Wallkill"), was searched. Previously, on June 22, 1977, Correction Lieutenant Louis Lorenz received information from an inmate informant that Doe was trafficking in drugs and that Doe, and possibly others, were planning to aid five inmates in an escape planned for August 1977. Lorenz relayed the information to Superintendent William Quick, to the Department's Inspector General's Office and to the New York State Police Bureau of Criminal Investigation. On or about June 24, 1977, the informant delivered marijuana to Lorenz in response to his request to see samples of the drugs allegedly brought into Wallkill by Doe. Also pursuant to a request by Lorenz, on or about June 27, 1977, the informant delivered hashish to him.

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On or about June 28, 1977, Lieutenant Lorenz and the inmate met with representatives of the Department's Inspector General's Office and the State Police Bureau of Investigation at the state police barracks at Newburgh, New York. During the meeting, the informant repeated his allegations concerning the escape plan and Doe's drug trafficking. The Department made arrangements to permit the informant to leave Wallkill on a furlough to meet with Doe for the purpose of electronically recording an escape-related conversation between the informant and Doe.

Between June 22 and June 30, 1977, the informant provided Lieutenant Lorenz with additional information, on an almost...

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