Unnecessary strip-search in local police station may have been unconstitutional

This can happen to you. One day, the plaintiff, a 67 year-old property owner, was sitting on a bus on his way to Elmira when the police showed up, escorted him off the bus thanks to an outstanding warrant, and took him to the police station. The warrant was for an alleged property violation: operating a structure unfit for human occupancy. These violation related to his home. At the police station, plaintiff says, he was strip-searched for no apparent reason, and law enforcement delayed releasing him for two hours even though his girlfriend showed up with the bail money.

The case is Murphy v. Hughson, issued on September 21. He sues over the strip-search and the release delay. The district court dismissed the case, holding that a Supreme Court ruling from 2012 gave prison officials more leeway in strip-searching detainees, and the court further held the release delay was nonactionable because it did not shock the conscience under due process jurisprudence. The Court of Appeals reverses.

For many years, the Second Circuit had held that misdemeanor detainees cannot be strip-searched without reasonable suspicion that they pose a threat to someone. But in 2012, deferring to the expertise of prison officials, the Supreme Court held in Florence v. Board of Freeholders, that "a blanket policy of conducting visual body cavity searches on new inmates is constitutional, even for misdemeanor detainees where there is no reason to suspect the arrestee would have contraband." Florence abrogated some Second Circuit case law on strip searches, the Second Circuit says, but some Circuit law survives Florence because Florence does not speak to cases like this, where the plaintiff is not challenging a prison policy but instead sues over an individual officer acting on his own whim and contrary to established jail policy.

See what the Court of Appeals did here? It found a way to hold that Supreme Court authority does not apply to this particular case. Murphy found a way around Florence because the facts of his case are different from the facts in Florence. And that, ladies and gentlemen, is good lawyering.

If the jury credits plaintiff's testimony, the jail officer acted on his to strip search plaintiff, and he humiliated plaintiff in doing so. Also, under plaintiff's version of events, there was no reason to think that plaintiff posed any contraband or safety risk. He was only arrested on a property violation.

What about the delayed release from the police department after plaintiff's girlfriend showed up with the bail money? It looks like plaintiff had to wait two additional hours. Under substantive due process cases, plaintiffs cannot win unless the governmental action shocks the conscience, an unusually difficult burden of proof. The Court of Appeals says this is a close case, but it holds this case can go to trial as (1) he did have to wait two hours, and (2) the strip search was humiliating and unnecessary.