Qualified immunity in body cavity search case

This plaintiff brought suit for false arrest and an illegal cavity search that took place at the police station. This case acquaints us with some disgusting imagery about how drug dealers conceal their merchandise. Bottom line: although the arrest was illegal, the municipal defendants are entitled to qualified immunity on that claim. They also get qualified immunity on the cavity search claim.

The case is Gonzalez v. City of Schenectady, decided on August 28. While situated in a known drug area, plaintiff was arrested after a police wire overheard him offer to find "whatever you needed" for a potential buyer. This was not quite a bona-fide offer to sell drugs, so the drug arrest violates the Fourth Amendment. But plaintiff still loses the case. The Second Circuit (Jacobs, Chin and Pooler) says the officers had arguable probable cause -- a qualified immunity concept -- because reasonably competent police officers might disagree on whether there was probable cause to arrest plaintiff. In other words, this is too close a call to hold officers personally liable. This is an unpleasant fact of life for plaintiffs: that officers get the benefit of the doubt in civil rights cases. The Supreme Court gave its blessing to qualified immunity a long time ago, and the federal courts routinely find that plaintiffs get nothing in close cases even if quiet contemplation in a judge's chambers later on reveals that the arrest was illegal.

Plaintiff also sues for the cavity search. At the police station, the officers made him strip down to facilitate a visual cavity search between his buttocks. The officer saw a "little plastic bag sticking out of his rectum" and removed a bag containing drugs. The law governing the legality of strip searches is complex. While the officers in this case do not dispute that the search violated plaintiff's search and seizure rights, they argue -- and the Court of Appeals agrees -- that the officers get qualified immunity because "at the time of the search, we had never held that the Fourth Amendment is violated by a suspicionless search (strip search or visual body cavity search) of a person arrested for felony drug possession. Although we have repeatedly held that the police may not conduct a suspicionless strip or body cavity search of a person arrested for a misdemeanor, reasonable officers could disagree as to whether that rule applied to those arrested for felony drug crimes, given the propensity of drug dealers to conceal contraband in their body cavities." Judge Pooler dissents from this holding.

The Court of Appeals provides some commentary on the policies behind qualified immunity. When the case law is not clear at the time of the rights violation, the officers cannot be sued personally. They are not expected to be legal scholars. Here is the language that jumps out at me, though. It has been argued that qualified immunity is pointless because municipalities cover the legal expenses and damages awards for police officers, so why does it matter if they are sued personally in close cases? Chief Judge Jacobs says in a footnote:

The premise--that a suit against an individual government employee is in substance a suit against his employer--is wrong. Doubtless in some political subdivisions of this Circuit the government supplies defense counsel and pays the judgment if an officer is personally liable under § 1983. But this Circuit includes scores of counties and hundreds of towns and municipalities; and there are thousands of political subdivisions in the nation. Not all of them will indemnify their employees for § 1983 judgments; many cannot even afford to furnish a defense; some can barely keep the school open.