Naked police misconduct victims lose at trial, and on appeal

This police misconduct case went to trial: plaintiffs argued the defendant officers executed a search warrant and found the plaintiffs in the apartment but not the target of the warrant  Plaintiffs were sleeping when the officers entered the place, and both plaintiffs were naked. They claim the Fourth Amendment was violated because the officers unnecessarily saw them naked while executing the warrant. The plaintiffs lost at trial and they appeal to the Second Circuit, which agrees the case must be dismissed.

The case is Miller v. City of New York, a summary order issued on July 2. Plaintiffs smartly seek a new trial on the basis that the trial court issued bad jury instructions. This is always the best way to appeal from an adverse verdict since the trial court has no discretion or authority to charge the jury incorrectly. The problem is that plaintiffs' lawyers did not object to those charges, which imposes a difficult standard of review on appeal: plain error. You have to show the error was plain and affected substantial rights that seriously affected the fairness or integrity of the trial. That's a tough burden, and plaintiffs in this case cannot satisfy it.

One reason plaintiffs lose the appeal is because they argue now that the jury charge should have said the jury must find for Miller if it found that she was partially or fully naked when Defendant Penner searched her because there was no particularized suspicion that contraband would be found on them during the search. The Court of Appeals holds there is no established rule of law that categorically forbids limited searches without reasonable suspicion of individuals who are naked when the officers enter a dwelling. "We have never held that officers need reasonable suspicion in order to search or pat down a suspect who (like Miller here) was already nude when the officers arrived." Plaintiffs' challenges to the other jury instructions also fail because they did not challenge them at trial and they cannot show plain error. 

Finally, plaintiffs advance a more challenging argument than the jury charge appeal. They claim the jury had no choice but to find in their favor and they are entitled to judgment as a matter of law. 

Miller contends that the uncontroverted trial testimony established that Penner caused Miller to remove a blanket and expose herself to a male officer for several seconds while Penner helped Miller put on leggings.  According to Miller, this momentary exposure entitled her to judgment as a matter of law against Penner, because such conduct constituted a per se violation of the Fourth Amendment.

This argument may sound reasonable, but the Supreme Court has rejected it on worse facts than this. In Los Angeles County v. Rettele, the Court held in 2007 that the Fourth Amendment was not violated when officers executing a warrant ordered a naked man and woman out of bed in order to secure the room and preserve evidence. In that case, the undressed plaintiffs were exposed for two minutes. The Court of Appeals says if the plaintiffs could not win in Rettele, the plaintiffs in this appeal cannot win either.