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  • Jim Chapman

The Second Circuit holds that officer must face suit for a strip search and delaying a release.

Author: Jim Chapman


On the morning of June 5, 2014, Plaintiff/Appellant Christopher Murphy was sitting on a bus at the County Transportation Center in Elmira, New York (“the City”). The bus was scheduled to depart at 9:00 a.m., and Murphy was planning to take the bus (approximately) twenty miles to Sayre, Pennsylvania, where he had four medical appointments scheduled. Before the bus could leave, however, police officers arrived and asked Murphy to disembark. Once the officers confirmed his identity, they handcuffed him, placed him in a police car, and took him to the Elmira City Hall. The officers arrested Murphy pursuant to an active bench warrant issued by the Elmira City Court charging him with several misdemeanors related to the maintenance of his property.

At City Hall, the officers put a chain around Murphy’s waist before taking him to court. They placed him in a room outside the courtroom, and at approximately 9:45 a.m., they brought him before Judge Steven W. Forrest of the Elmira City Court. Murphy’s girlfriend, Barbara Camilli, was sitting in the courtroom. Judge Forrest set bail at $750 cash or a $1,500 surety bond and ordered that Murphy remain in custody until he made bail or until 1:00 p.m., when he was to return to court. Murphy advised the court that he only had $400 in his possession and asked the court to lower the bail to that amount. The court denied the request and told Murphy that, unless he made bail, he would remain in custody until 1:00 p.m. Accordingly, Murphy was remanded to the custody of officers with Chemung County, New York (“the County”), until he returned to court at 1:00 p.m. or until he posted bail, whichever came first. While he was still in the courtroom, Murphy asked Camilli to go to an ATM to get the balance of the money that he needed in order to make bail.

Murphy was then taken from the courtroom back to the Elmira police station and was placed into a small room. Murphy was not fingerprinted, photographed, or processed at that point. After waiting there for about five minutes, Murphy heard Camilli, outside of the room saying, “I’m here with his bail.” Although he could not see what was happening, Murphy heard a male police officer tell Camilli that, because Murphy was in the Sheriff’s custody now, he could not be released from the Police Department. Instead, Murphy had to be taken to the County Jail, and she would need to go there in order to post his bail.

After about another twenty minutes, Murphy was transported by van from City Hall to the County Jail. Murphy was put into a holding cell, and after five or ten minutes, Defendant/Appellee Officer Glenn Gunderman fingerprinted and photographed Murphy. The fingerprinting took a while because Officer Gunderman was having trouble with the process. As Murphy was being fingerprinted, Officer Gunderman said to him, “[y]our bail’s sitting out there and we’re going to cut you loose” or “[w]e’ve got to cut you loose.” Officer Gunderman also said that Camilli—who was attempting to post Murphy’s bail and secure his release—was “making a real fuss, making a real commotion” about the delay. Murphy’s impression was that he would be released “immediately.”

Instead, Murphy was placed into a second holding cell, where a young man was already being detained. After about an hour and about an hour before Murphy was due back in court, the Booking and Admissions Officer—Defendant/Appellee William Washburn—removed Murphy from the cell. Officer Washburn brought Murphy to a small room and conducted a visual body cavity search, requiring Murphy to disrobe, lift his scrotum, and spread his buttocks. Officer Washburn did not touch Murphy during the search, which lasted around ten minutes.

After the strip search was completed, Officer Washburn escorted Murphy out of the search room and gestured to other officers with his thumb and forefinger, which Murphy understood as mockingly connoting that he had a small penis. Murphy was then brought back to the holding cell. After ten or fifteen minutes, officers took him to a different area for questioning, where he was processed. Deputies asked Murphy personal questions for another ten or fifteen minutes, with one or two of the deputies typing into a computer. During the questioning, Murphy repeatedly asked when he would be released, noting that his bail had been posted. Murphy received no response, except from one deputy who said, “Well, we’ve got to take you to court at 1:00.”

At least two or three times in the presence of other deputies, Officer Gunderman said, “[t]his guy’s bail’s out there. We’ve got to cut him loose.” Officer Washburn responded: “No. We’re not done with him yet. He’s not going anywhere. He’s going to sit in my jail for a while.” Officer Washburn made comments to this effect both before and after the strip search. After the questioning was completed, Murphy was returned to the holding cell. Shortly thereafter, Murphy was released without ever entering the Jail’s general population. At that point, it was close to 1:00 p.m., and so, Murphy and Camilli walked directly to court to appear before Judge Forrest.

At the time, strip searches in the County were governed by rules set forth in a policy numbered C-110 (the “Policy”), which bore the subject line: “Admitting of Inmates into the Facility.” The Policy provides, inter alia, that “only those inmates that present a reasonable suspicion for being strip-searched will be strip-searched. All other new admissions that do not meet these criteria will be pat searched only.” The Policy also required that, if a strip search is conducted, “a report will be made” setting forth (1) the reason(s) for the search; (2) the search’s time, date, and location; (3) the supervisor or officer-in-charge who authorized the search; and (4) the officer who conducted the search.

The strip search of Murphy was reported on a form entitled “Strip Search Justification Sheet” (the “Justification Sheet”). The report noted the date and time of the search (June 5, 2014, at noon) and listed Officer Washburn as the “Search Officer.” In the space reserved for the “[e]xplanation of the grounds or reasons for conducting a strip search,” the form stated only “per Post 1.” The form did not name any supervisor or officer who authorized the search; rather, the fields for “finding/result of search,” the “Watch Commander’s Signature,” badge number, date and time, and an additional space for “[c]omments” were all blank.

On June 1, 2017, Murphy filed suit under 42 U.S.C. § 1983 in the United States District Court for the Western District of New York. In his amended complaint, Murphy alleged that the individual Defendants, other County employees, and several Elmira police officers had violated his Constitutional rights by subjecting him to an unjustified strip search and by delaying his release after Camilli had posted his bail. Murphy asserted that, as a longtime resident of Elmira, he had been targeted for harassment because of his contentious relationship with the City and the County, which included prior legal disputes.

The District Court dismissed Murphy’s claims against the City and the County and, eventually, granted summary judgment and dismissed the claims against the individual Defendants. In so doing, the District Court held that (1) the search was Constitutional and the searching officer was entitled to qualified immunity, and (2) the two-hour delay in his release did not rise to the level of a Constitutional violation. Murphy timely appealed the District Court’s dismissal of his claims against the individual Defendants to the United States Court of Appeals for the Second Circuit. Murphy v. Hughson, ___ F.4th ___, 2023 WL 6151382 (2d Cir. Sept. 21, 2023).

On appeal, the Second Circuit explained that, prior to the United States Supreme Court’s holding in Florence v. Board of Chosen Freeholders of Burlington County, 566 U.S. 318 (2012), the Second Circuit had long held that misdemeanor detainees could not be subjected to strip searches without reasonable suspicion. But since Florence, a blanket policy of conducting visual body cavity searches on new inmates is Constitutional, even for misdemeanor arrestees where there is no reason to suspect the arrestee would have contraband.

However, the Second Circuit found that the District Court had erred in its application of Florence in two respects. According to the Second Circuit, the Supreme Court’s holding in Florence did not dictate the result in this case because Murphy was not challenging a prison-wide policy on its face or as applied to him; rather, his claim concerned actions taken by an individual officer acting on his own whim and contrary to established Jail policy. In light of the Policy’s language, Defendants did not and could not claim that there was a policy requiring that every detainee admitted to the County Jail be strip searched or that there was a policy calling for a strip search of a prisoner with Murphy’s characteristics. Nor did they assert a legitimate penological justification for subjecting Murphy to such a search. Instead, the Second Circuit opined that, for purposes of summary judgment, the facts were that Murphy (who was 67 years old at the time) was strip searched because of an individual officer’s ad hoc decision. Under these circumstances, the Second Circuit determined that, if a misdemeanor arrestee entering a prison is subjected to an ad hoc strip search without reasonable suspicion, the Fourth Amendment is violated.

Here, the Jail did not have a policy calling for strip searching Murphy under these circumstances, nor did it have a legitimate penological interest for doing so. Rather, the Policy permitted strip searches only upon individualized reasonable suspicion. Based on the record before it, the Second Circuit concluded that a reasonable jury could conclude that there was no Constitutionally cognizable reason justifying the strip search of Murphy.

The Second Circuit also found that the District Court erred in holding that qualified immunity protected Officer Washburn from this suit. On the contrary, the Second Circuit concluded that genuine issues of fact were presented as to whether Washburn was protected by qualified immunity, making summary judgment improper. On this record, the Second Circuit held that a reasonable jury could find that, instead of simply following the orders of a superior officer, Officer Washburn was a party to harassment and demeaning conduct culminating in the search conduct that he and other reasonable officers should have known had no legitimate penological purpose and was, therefore, unconstitutional. Accordingly, the Second Circuit found that the District Court erred when it granted summary judgment on Murphy’s strip search claim.

Finally, the Second Circuit held that the District Court erred in dismissing Murphy’s delay claim, i.e., that Officer Washburn unreasonably and unconstitutionally delayed his release from custody. The Second Circuit noted that, because he was a pretrial detainee, Murphy’s claim arose under the Fourteenth Amendment’s Due Process Clause. In order to state such a claim, Murphy needed to allege (1) a valid liberty interest (2) that the Defendants infringed in an arbitrary or irrational manner. In order to defeat summary judgment, Murphy was required to present evidence that a reasonable jury could find that Officer Washburn’s actions “shocked the conscience.” Although it was a “close call,” the Second Circuit concluded that a reasonable jury could make such a finding.

Of course, the Second Circuit recognized that there could be instances where a two-hour delay in release following the posting of bail is a de minimis intrusion that does not rise to the level of a Constitutional violation. But here, the Second Circuit opined that a reasonable jury could find that the strip search was not rationally related to any legitimate governmental purpose and that Officer Washburn acted deliberately and vindictively. As such and under these circumstances, the Second Circuit stated that a reasonable jury could find that the delay in Murphy’s release shocked the conscience. Accordingly, the Second Circuit affirmed the District Court’s grant of summary judgment to the individual Defendants other than as to Officer Washburn, vacated the grant of summary judgment as to Officer Washburn on both Murphy’s search and delay claims, and remanded the case to the District Court for further proceedings.

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