Police need a good reason to cavity-search felony arrestees

A judicial fistfight erupted last week in the Second Circuit, as the judges sharply disagreed about how to determine whether police officers who cavity-searched a pre-trial detainee are immune from suit. The Court of Appeals ultimately finds the officers cannot invoke qualified immunity because the law was clearly established at the time of the incident that even people arrested on felony charges cannot be searched in this manner unless the police have a specific reason to believe the arrestee is hiding contraband inside his body cavity.

The case is Sloley v. VanBramer, issued on December 12. It all started when plaintiff got into a fight with his girlfriend, who called the police. The police claim plaintiff's girlfriend said that plaintiff may be involved with illegal drug activity and was in possession of illegal drugs. When the police pulled over plaintiff shortly thereafter (plaintiff and his girlfriend fought at her house and then he drove away), they claimed to find drugs in the car; plaintiff denies there was any drugs in the car at all. When they took plaintiff to the police station, they searched him by looking into his anal cavity for drugs, but they found none. Plaintiff now sues over that strip search under the Fourth Amendment.

If the law was clearly established at the time of this incident that cavity searches for felony arrestees violate the Fourth Amendment, then plaintiff can proceed with his case. If the law was not clearly established, then the police have qualified immunity and plaintiff cannot sue. The idea behind this form of immunity is that the police cannot be on notice that they violated the Constitution if the case law was not clear at the time. The question is this: what body of law do we draw from in determining of the law was clearly established? The general understanding is that we look the Supreme Court and Second Circuit authority. Even so, the prior case law must be close enough to plaintiff's case for the police to know they are breaking the law. Generalized legal propositions (such as the prohibition against unreasonable search and seizure) are not clearly-established law. You need case holdings that make the unlawfulness apparent.

Writing for the majority, Judge Pooler says the law was clearly established at the time the police searched plaintiff. The Second Circuit said in 2008 that the police need an "individualized reasonable suspicion that a misdemeanor arrestee is concealing weapons or other contraband based on the crime charged, the particular characterization of the arrestee, and/or the circumstances of the arrest before she may be lawfully subjected to a strip search." So what about felony offenses? The Second Circuit says, "we now hold that such searches do require reasonable suspicion." This means we got a new legal standard in this Circuit, as the Court says the misdemeanor/felony distinction makes little sense, and the Supreme Court has always wanted "readily administrable" Fourth Amendment rules rather than ones qualified by "if, ands, and buts."

Although the Court purports to identify a new civil right in this opinion, it also says the police were on notice that felony cavity searches were illegal at the time of this incident. While the Second Circuit had yet to squarely identify this right before issuing this ruling, "we have little trouble concluding that that requirement would have been sufficiently clear to a reasonable New York state police officer." Not only do we normally look to Supreme Court and Second Circuit authority, a right may be clearly-established "if it is supported by a robust consensus of cases of persuasive authority." The Supreme Court said that in District of Columbia v. Wesby, 138 S.Ct. 577 (2018). In this instance, we got a New York State Court of Appeals ruling, People v. Hall, 10 N.Y.3d 303 (2008), which held that felony strip searches require individualized suspicion, along with a slew of federal district court rulings in the Second Circuit which have also held as such. The police in this case were already bound by Hall, even though it's a state law case. Hall tips the scales in this case against qualified immunity, though it would only prevent qualified immunity for cases arising in New York and not the other states in the Second Circuit, i.e., Vermont and Connecticut. That's a "quirk," Judge Pooler says, but that's the way it is. Judge Newman agrees with Judge Pooler's analysis.

In dissent, Judge Jacobs, a longtime proponent of qualified immunity, objects that the majority is asking too much of police officers to keep track of both federal and state court rulings to avoid liability in federal court. Instead, he says, the Second Circuit's ruling in Gonzalez v. City of Schenectady, 728 F.3d 149 (2d Cir. 2013), which said the law was unclear whether felony strip searches violated the Fourth Amendment, means the law remains unclear and qualified immunity must attach in this case. Not only does Judge Jacobs object to reliance on a case from the New York Court of Appeals, but he takes issue with reliance on district court rulings, which means "officers would need to follow developments in the trial courts as well as in the appellate courts. I don't know what my colleagues think police do all day."