The Nassau County strip search case lives on

In 1999, the Eastern District of New York ruled (and the Second Circuit agreed) that the Nassau County strip search policy for its County jails violated the U.S. Constitution because the policy included searching people with misdemeanors without reason to believe the inmates had weapons. Years later, another lawsuit was brought against Nassau County because it was continuing to search people that way. Then the U.S. Supreme Court in 2012 ruled that the U.S. Constitution allows county jails to strip search all incoming inmates. So how does that Supreme Court ruling affect the second Nassau County strip search case?

The case is In Re Nassau County Strip Search Cases, a summary order decided on February 26. After the Supreme Court's 2012 ruling in Florence, Nassau County asked the district court to dismiss the case as to both plaintiffs' federal and state claims challenging the Jail's strip search policy. The reasoning was that the law has changed and that the Nassau County strip search case is no longer viable. The Court of Appeals says the County is correct as to the plaintiffs' federal law claims, but not the state law claims.

The Second Circuit (Cabranes, Pooler and Chin) says Florence does in fact repudiate the Second Circuit's 1999 ruling in Shane v. Ellison, which had placed strict limits on whether county jails could strip-search incoming inmates. Plaintiffs in this case have a first-class legal team that offered a variety of arguments to the effect that Florence does not affect Shain, but the Court of Appeals rejects those arguments, holding instead that Florence broadly allows jail officials to conduct these strip-searches, and that exceptions to that rule are narrow and inapplicable in this case.

But Florence does not affect plaintiffs' state law claims challenging the strip searches. Florence interpreted the U.S. Constitution, not the New York State Constitution. As the Second Circuit writes, "We fail to see how a Supreme Court decision interpreting any federal constitutional provision could ever control the meaning of an analogous state constitutional provision, at least absent extraordinary circumstances not present here." Rather, the Court says, state courts often interpreted state constitutional provisions more broadly than comparable federal constitutional provisions. As the district court noted in this case, "How New York courts will decide a case factually analogous to the one at bar under [the state Constitution] remains to be seen. That they might not adopt the Florence rationale is certainly well within the realm of possibility." This means that the current Nassau County strip search case will proceed.