Florence v. Bd. Of Chosen Freeholders Of The County Of Burlington

Decision Date21 September 2010
Docket NumberNos. 09-3603, 09-3661.,s. 09-3603, 09-3661.
Citation621 F.3d 296
PartiesAlbert W. FLORENCE v. BOARD OF CHOSEN FREEHOLDERS OF the COUNTY OF BURLINGTON; Burlington County Jail; Warden Juel Cole, Individually and officially as Warden of Burlington County Jail; Essex County Correctional Facility; Essex County Sheriff's Department; State Trooper John Doe, Individually and in his capacity as a State Trooper; John Does 1-3 of Burlington County Jail & Essex County Correctional Facility who performed the strip searches; John Does 4-5 Essex County Correctional Facility; Essex County Sheriff's Department, Appellants in 09-3603 Board of Chosen Freeholders of the County of Burlington; Warden Juel Cole, Appellants in 09-3661.
CourtU.S. Court of Appeals — Third Circuit


Susan C. Lask, [Argued], New York, NY, Michael V. Calabro, Newark, NJ, Attorneys for Appellee Albert W. Florence.

J. Brooks DiDonato, [Argued], Stacy L. Moore, Jr., Parker McCay, Marlton, NJ, Attorney for Burlington County Board of Chosen Freeholders and Juel Cole; Appellees in 09-3603 & Appellants in 09-3661.

Alan Ruddy, [Argued], Office of County Counsel, County of Essex, Newark, NJ, Attorney for Essex County Correctional Facility and Essex County Sheriff's Department; Appellants in 09-3603 & Appellees in 09-3661.

Sean X. Kelly, Sean Robins, Marks, O'Neill, O'Brien & Courtney, Pennsauken, NJ, Attorney for Amicus Appellant County of Atlantic and Gary Merline.

Seth R. Lesser, Klafter Olsen & Lesser, Rye Brook, NY, Attorney for Amicus Appellees Ronald Allen, Edward Bizarro, Joseph DePietro, Donald Dillard, Mel Free El, Tammy Marie Hass, Alphonso Johnson, John Moore, Konstanti Sidieras, Paul M. Takacs, April Wedding, Harvey Weintraub, Justin Wennah, Sandra King Wilson and Richard Wright.

Ernest R. Bazzana, Mary Massaron-Ross, Plunkett Cooney, Detroit, MI, Attorneys for Amicus Appellant Meadowbrook Inc., New Jersey County Jail Wardens Association, Sheriffs Association of New Jersey.

Edward L. Barocas, American Civil Liberties Union of New Jersey Foundation, Newark, NJ, Attorney for Amicus Appellees Robert J. Del Tufo; Zulima Farber, John Farmer, Peter C. Harvey, Deborah T. Poritz.

James M. Mets, Mets, Schiro McGovern, Woodbridge, NJ, Attorney for Amicus Appellant Policemens Benevolent Association Local 249.

Jennifer R. Clarke, Public Interest Law Center of Philadelphia, Philadelphia, PA, David Rudovsky, Kairys, Rudovsky, Messing & Feinberg, Philadelphia, PA, Attorney for Amicus Appellee Pennsylvania Prison Society.

Before: SLOVITER and HARDIMAN, Circuit Judges and * POLLAK, District Judge.


HARDIMAN, Circuit Judge.

This interlocutory appeal requires us to decide whether it is constitutional for jails to strip search arrestees upon their admission to the general population. Although the question is one of first impression for this Court, the Supreme Court's decision in Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), and the many cases that followed it inform our analysis.

In Bell, the Supreme Court rejected a Fourth Amendment challenge to a policy of visual body cavity searches for all detainees-regardless of the reason for their incarceration-after contact visits with outsiders. Id. at 560, 99 S.Ct. 1861. The Court applied a balancing test and concluded that the visual body cavity searches were reasonable because the prison's security interest justified the intrusion into the detainees' privacy.

Since Bell was decided, ten circuit courts of appeals applied its balancing test and uniformly concluded that an arrestee charged with minor offenses may not be strip searched consistent with the Fourth Amendment unless the prison has reasonable suspicion that the arrestee is concealing a weapon or other contraband. Things changed in 2008, however, when the en banc Court of Appeals for the Eleventh Circuit reversed its prior precedent and held that a jail's blanket policy of strip searching all arrestees upon entering the facility was reasonable even in the absence of individualized suspicion. Powell v. Barrett, 541 F.3d 1298, 1314 (11th Cir.2008) (en banc). A year later, the en banc Court of Appeals for the Ninth Circuit also reversed its prior precedent and upheld a blanket policy of strip searching all arrestees before they enter San Francisco's general jail population. Bull v. City and County of San Francisco, 595 F.3d 964, 975 (9th Cir.2010) (en banc).

Confronted with a clear dichotomy between the en banc decisions of the Ninth and Eleventh Circuits on the one hand and the numerous cases that preceded them on the other, we must determine which line of cases is more faithful to the Supreme Court's decision in Bell.


We begin with the facts surrounding the arrest and detention of lead Plaintiff Albert Florence. On March 3, 2005, a New Jersey state trooper stopped the car in which Florence was a passenger and arrested him based on an April 25, 2003 bench warrant from Essex County. The warrant charged Florence with a non-indictable variety of civil contempt. Though Florence protested the validity of the warrant by insisting he had already paid the fine on which it was based, he was arrested and taken to the Burlington County Jail (BCJ).

According to Florence, he was subjected to a strip and visual body-cavity search by corrections officers at BCJ. During the jail's intake process, Florence was directed to remove all of his clothing, then open his mouth and lift his tongue, hold out his arms and turn around, and lift his genitals. The officer conducting the search sat approximately arms-length in front of him, and directed Florence to shower once the search was complete. Florence was held at BCJ for six days.

During Florence's sixth day at BCJ, the Essex County Sheriff's Department took custody of him and transported him to the Essex County Correctional Facility (ECCF). Florence alleges that he was subjected to another strip and visual body-cavity search upon his arrival at ECCF. As described by Florence, he and four other detainees were instructed to enter separate shower stalls, strip naked and shower under the watchful eyes of two corrections officers. After showering, Florence was directed to open his mouth and lift his genitals. Next, he was ordered to turn around so he faced away from the officers and to squat and cough. After donning ECCF-issued clothing and visiting a nurse, Florence joined the general jail population until the following day, when the charges against him were dismissed.

After his release, Florence sued BCJ, ECCF, and various individuals and municipal entities (collectively, the Jails) under 42 U.S.C. § 1983. While Florence asserted numerous constitutional claims, the only claim germane to this appeal is his Fourth Amendment challenge to the strip search procedures at BCJ and ECCF.


On March 20, 2008, the District Court granted Florence's motion for class certification, defining the plaintiff class as: All arrestees charged with non-indictable offenses who were processed, housed or held over at Defendant Burlington County Jail and/or Defendant Essex County Correctional Facility from March 3, 2003 to the present date who were directed by Defendants' officers to strip naked before those officers, no matter if the officers term that procedure a “visual observation” or otherwise, without the officers first articulating a reasonable belief that those arrestees were concealing contraband, drugs or weapons[.]

Florence v. Bd. of Chosen Freeholders of the County of Burlington, 2008 WL 800970, at *17 (D.N.J. Mar. 20, 2008). 1

Following discovery, the parties filed cross motions for summary judgment. In reviewing the motions, the District Court first considered whether the intake procedures at each facility rose to the level of a “strip search.” Florence v. Bd. of Chosen Freeholders of the County of Burlington, 595 F.Supp.2d 492, 502 (D.N.J.2009). To resolve this question, the District Court reviewed the Jails' written search policies 2 as well as the deposition testimony of correctional officers and the wardens at each facility. Ultimately, the District Court concluded that, while there were facts in dispute-such as whether non-indictable male arrestees at BCJ were required to lift their genitals during the search-these disputes were immaterial because even the undisputed procedures of instructing arrestees to remove all of their clothing and subject their naked bodies to visual inspection “rose to the level of a strip search” under the Fourth Amendment. Id. at 502-03 (“Whatever the case may be, a discrepancy of this sort does not necessarily provide a genuine issue of material fact.... ‘It's just common sense. Take off all your clothes. You're strip[ ] searched.’ (quoting Plaintiffs' counsel)).

The District Court found that BCJ's “blanket” strip search policy “entails a complete disrobing, followed by an examination of the nude inmate for bruises, marks, wounds or other distinguishing features by the supervising officer, which is then followed by a supervised shower with a delousing agent.” Id. at 502. The Court found that ECCF utilized similar strip- search and supervised-shower procedures; however, the ECCF procedures were slightly more intrusive because “Essex officers carefully observed the entire naked body of the inmate, including body openings and inner thighs.” Id. at 503. 3 Having thus defined the Jails' respective search policies, the District Court concluded that the procedures failed the Bell balancing test and observed that “blanket strip searches of non-indictable offenders, performed without reasonable suspicion for drugs, weapons, or other contraband, [are] unconstitutional.” Id. at 513. Based on this holding, the District Court granted the Plaintiffs' motion for summary judgment on the unlawful search claim, but denied the Plaintiffs' request for a preliminary injunction. Id. at 519. The Court denied Defendants' cross-motion which sought qualified and ...

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