     06-5309-cv
     Hartline v. Gallo



 1                               UNITED STATES COURT OF APPEALS
 2
 3                                       FOR THE SECOND CIRCUIT
 4
 5
 6
 7                                          August Term, 2007
 8
 9         (Argued: April 2, 2008                                     Decided: October 8, 2008)
10
11                                        Docket No. 06-5309-cv
12
13
14                                          STACEY HARTLINE ,
15
16                                                                                 Plaintiff-Appellant,
17
18                                                 –v.–
19
20          ANTHONY GALLO , DARREN GAGNON , MARLA DONOVAN , JIM SHERRY , VILLAGE OF
21          SOUTHAMPTON POLICE DEPARTMENT , INCORPORATED VILLAGE OF SOUTHAMPTON ,
22
23                                                                              Defendants-Appellees.
24
25
26
27   Before:
28
29                            LEVAL, CALABRESI, and WESLEY , Circuit Judges.
30
31
32
33           Appeal from a decision of the United States District Court for the Eastern District of New
34   York (Hurley, J.) granting summary judgment to Defendants on Plaintiff’s claims under 42
35   U.S.C. §§ 1983 and 1985, and declining to exercise supplemental jurisdiction over Plaintiff’s
36   state law claims. Plaintiff alleges that she was subjected by the Southampton Police to an
37   unconstitutional strip search in the absence of individualized suspicion that she was secreting
38   contraband on her person, and that the strip search was telecast throughout the police station.
39
40             VACATED in part, AFFIRMED in part, and REMANDED for further proceedings consistent

                                                    -1-
 1   with this opinion.
 2
 3
 4
 5                  WILLIAM E. BETZ, Lifshutz & Lifshutz, P.C., New York, New York, for
 6                  Appellant.
 7
 8                  DIANE K. FARRELL, Devitt Spellman Barrett, LLP, Smithtown, New York, for
 9                  Appellees.
10
11
12
13   WESLEY , Circuit Judge:

14          Stacey Hartline appeals from a decision of the United States District Court for the Eastern

15   District of New York (Hurley, J.) granting summary judgment to Defendants on her claims under

16   42 U.S.C. §§ 1983 and 1985, and declining to exercise supplemental jurisdiction over her state

17   law claims. On appeal, Hartline argues that the district court erred in granting judgment to the

18   Defendants with regard to her § 1983 claims against the Village of Southampton and various

19   individual officers of the Southampton Police Department. She contends that her Fourth

20   Amendment rights were violated when she was subjected by the Southampton Police to a strip

21   search in the absence of individualized suspicion that she was secreting contraband on her

22   person, and when that search was telecast throughout the police station. She further contends

23   that because the strip search violated clearly established law, the individual officers are not

24   entitled to qualified immunity, and that because the search was conducted pursuant to municipal

25   policy, the Village of Southampton may be held liable for the search. We agree. Accordingly,

26   we vacate the district court’s judgment with regard to those claims, and remand the case to the

27   district court for further proceedings in accordance with this opinion.

28                                            BACKGROUND


                                                      -2-
 1                                                      I

 2             Hartline, a twenty-one-year-old woman, was driving her pick-up truck on the morning of

 3   January 6, 2003 in the Village of Southampton, New York.1 She was running errands for her

 4   employer, Best Modular Homes, including a stop at her employer’s bank to pick up funds. She

 5   was wearing a coat, t-shirt, jeans, long johns, socks, boots, and underwear. At approximately

 6   9:30 a.m., she was stopped by Officer Anthony Gallo of the Southampton Village Police because

 7   her truck was missing a rear license plate. Because the driver’s side window on the pick-up truck

 8   was broken, Hartline needed to open her door to speak to Gallo. Through the open door, Gallo

 9   saw a stem of a marijuana plant on the floor of Hartline’s truck. He picked it up and told

10   Hartline that if she showed him all the marijuana in the truck she would not be arrested. Hartline

11   answered that there might be some other unusable bits of marijuana in the truck. Gallo then

12   handcuffed Hartline behind the truck and searched it. Gallo found some unusable bits of

13   marijuana, including a butt of a marijuana cigarette, a container with a few seeds, and a pipe.

14   Gallo never asked Hartline if she was carrying any marijuana (or other contraband) on her

15   person.

16             Gallo took Hartline to the police station. At the police station, Hartline was greeted by

17   Sergeant Darren Gagnon, who told her she would have to wait until a female officer arrived to

18   strip search her. Marla Donovan, a female officer, was then summoned. Donovan took

19   Hartline’s handcuffs off and strip searched her in the cell designated for females. Donovan

20   required Hartline first to remove all of her lower garments and bend over while Donovan made a


               1
              Because the district court granted summary judgment in favor of the Defendants, we
     must consider the evidence in the light most favorable to the Plaintiff, drawing all reasonable
     inferences in her favor. See, e.g., Scott v. Harris, 127 S. Ct. 1769, 1774-75 (2007).

                                                       -3-
 1   visual inspection of her orifices, and then to remove her upper garments and lift her bra. Hartline

 2   was “crying hysterically” during this process.

 3          According to Hartline’s evidence, her strip search was conducted pursuant to the

 4   Southampton Police Department’s policy of strip searching all arrested females, regardless of

 5   whether there was individualized suspicion sufficient to justify the search. This evidence

 6   included an official report of the incident submitted by Officer Donovan in which she described

 7   the strip search of Hartline as done “in the same manner that the undersigned conduct[s] searches

 8   of all defendants that are female,” and an affidavit of Hartline’s stepfather Stephen Wilson, who

 9   was a detective in a neighboring town attesting that when Wilson spoke soon after the incident to

10   Southampton’s Chief of Police, Jim Sherry, Sherry acknowledged that all female prisoners are

11   strip searched. In response to Wilson’s astonishment, Sherry added, “Steve, you are a cop, you

12   should know . . . . [Y]ou know the guys do it.”2

13          After the strip search, Hartline was booked, photographed, and fingerprinted. At that

14   time, her handbag was searched, revealing $1300 in cash, which she had withdrawn from the

15   bank that morning for her employer. She was then returned to the female cell, where she

16   remained for some time. She then noticed a video camera trained on the area in the cell in which

17   she had been strip searched. The camera appeared to her to be turned on. She was eventually

18   released, and given an appearance ticket for misdemeanor possession of marijuana. As she


            2
              Although the evidence viewed in the light most favorable to Plaintiff might well support
     a claim that the policy of strip searching all female arrestees in circumstances where an
     identically situated male would not have been strip searched violates her rights under the Equal
     Protection Clause, see Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1274 (7th Cir. 1983), she
     has not asserted that theory either in the district court or on appeal. As a result, we do not
     address it. On rehearing, Plaintiff may wish to seek leave of the district court to amend her
     pleading to assert such a claim.

                                                        -4-
 1   passed Gallo on her way out, she saw a television monitor near him, showing a cell. She asked

 2   him whether the cell shown on the monitor was the one she had been in. He answered that it

 3   was.

 4          Ultimately, the misdemeanor marijuana charges against Hartline were dismissed.

 5                                                     II

 6          Hartline brought this action against Officers Gallo, Gagnon, Donovan, and Chief Sherry,

 7   as well as the Southampton Police Department and Incorporated Village of Southampton,

 8   seeking compensatory damages, punitive damages, and attorneys’ fees. The original complaint

 9   pressed 42 U.S.C. §§ 1983 and 1985 claims, as well as three state law-based claims, against each

10   of the Defendants. The district court granted the Defendants’ motion for summary judgment on

11   the federal claims and declined to exercise supplemental jurisdiction over the state claims.

12   Hartline v. Gallo, No. 03-civ-1974, 2006 U.S. Dist. LEXIS 75849, at *31 (E.D.N.Y. Sept. 30,

13   2006). On appeal, we consider only Hartline’s § 1983 claims against the individual officers and

14   the Village of Southampton.3


            3
               In the district court, Plaintiff alleged that the Defendants “willfully conspired together to
     deprive [her] of her civil rights” in violation of 42 U.S.C. § 1985. The district court dismissed
     this claim against all Defendants on the grounds that “Plaintiff[] fail[ed] to allege a conspiracy
     involving two or more legal entities,” because “[u]nder the intracorporate conspiracy doctrine,
     officers, agents and employees of a single corporate entity are legally incapable of conspiring
     together.” Hartline, 2006 U.S. Dist. LEXIS 75849, at *29-30. We affirm the district court’s
     holding on the basis of the reasoning contained in its opinion. See id. at *29-31; see also
     Herrman v. Moore, 576 F.2d 453, 459 (2d Cir. 1978) (explaining conspiracy doctrine); Quinn v.
     Nassau County Police Dep’t, 53 F. Supp. 2d 347, 359 (E.D.N.Y. 1999) (applying doctrine to
     police department and officers therein).
              The district court dismissed all of Plaintiff’s claims against the Southampton Police
     Department on the grounds that, “[u]nder New York law, departments that are merely
     administrative arms of a municipality do not have a legal identity separate and apart from the
     municipality and, therefore, cannot . . . be sued.” Hartline v. Gallo, 2006 U.S. Dist. LEXIS
     75849, at *25 (quoting Davis v. Lynbrook Police Dep’t, 224 F. Supp. 2d 463, 477 (E.D.N.Y.

                                                       -5-
 1          Hartline’s § 1983 claims are premised on her allegation that she was subjected to an

 2   unconstitutional strip search “pursuant to an official policy” of the Southampton Police

 3   Department. Hartline posits two different violations of her Fourth Amendment rights: (1) that

 4   she was strip searched in the absence of individualized suspicion that she was secreting

 5   contraband on her person; and (2) that the strip search was telecast to the male officers of the

 6   Southampton Police Department for their amusement. She argues that because the strip search

 7   violated clearly established law, the officers responsible for the search are not entitled to

 8   qualified immunity, and that because the search was conducted pursuant to a municipal policy of

 9   searching all female detainees, the Village of Southampton is also liable.

10          With respect to Hartline’s §1983 claims against the individual officers, the court found

11   that although Hartline adduced sufficient evidence to create a genuine issue of material fact as to

12   whether she was strip searched pursuant to a departmental policy to strip search all female

13   detainees, her Fourth Amendment rights were not violated because the circumstances of her

14   arrest – objectively viewed – provided the individualized reasonable suspicion necessary to

15   justify the search. Hartline, 2006 U.S. Dist. LEXIS 75849, at *14-20. Moreover, the court

16   reasoned, even assuming arguendo that the officers lacked individualized reasonable suspicion,

17   they would be entitled to qualified immunity because of the absence of any clear Second Circuit

18   or Supreme Court precedent establishing that the search was unconstitutional. Id. at *23; see

19   also Harlow v. Fitzgerald, 457 U.S. 800, 815 (1982). As for Hartline’s claim that her Fourth

20   Amendment rights were violated when the strip search was telecast throughout the police station,



     2002)). The Plaintiff does not contest this holding of the district court on appeal, and therefore it
     is waived. See, e.g., Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998).

                                                      -6-
 1   the court ruled that Hartline had waived that claim by failure to argue it in her papers in

 2   opposition to the summary judgment motion. Hartline, 2006 U.S. Dist. LEXIS 75849, at *7 n.1.

 3          Lastly, concerning Hartline’s claim against the Village of Southampton, the court noted

 4   that under Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 690-

 5   91 (1978), a municipality cannot be held liable for the conduct of its officers unless the plaintiff

 6   shows both a violation of her constitutional rights and that the violation was pursuant to a

 7   municipal policy or custom. Although troubled by evidence of an unconstitutional policy to strip

 8   search females routinely, the court found that because the strip search of Hartline was supported

 9   by individualized reasonable suspicion, Hartline lacked standing to challenge departmental

10   policy. Hartline, 2006 U.S. Dist. LEXIS 75849, at *26-28.

11                                              DISCUSSION

12          The district court erred in granting summary judgment to Defendants on Hartline’s §

13   1983 claims against the individual officers and the Village of Southampton. Hartline’s evidence,

14   viewed in the light most favorable to her, demonstrates a violation of her Fourth Amendment

15   right to be free from “unreasonable searches.” U.S. Const. amend. IV. She was subjected to a

16   strip search by the Southampton Police, pursuant to departmental policy, in the absence of

17   individualized suspicion that she was secreting contraband on her person. Moreover, the district

18   court erred in holding that Hartline waived the alternative basis for her § 1983 claim – namely,

19   that the officers violated her Fourth Amendment rights by telecasting her strip search through the

20   police station; she did not.

21                                                     I

22                                                     A


                                                      -7-
 1          The Fourth Amendment requires an individualized “reasonable suspicion that [a

 2   misdeameanor] arrestee is concealing weapons or other contraband based on the crime charged,

 3   the particular characteristics of the arrestee, and/or the circumstances of the arrest” before she

 4   may be lawfully subjected to a strip search. Weber v. Dell, 804 F.2d 796, 802 (2d Cir. 1986); see

 5   also N.G. v. Connecticut, 382 F.3d 225, 232 (2d Cir. 2004) (noting that all circuits to consider

 6   issue have reached similar conclusion). “A reasonable suspicion of wrongdoing is something

 7   stronger than a mere hunch, but something weaker than probable cause.” Varrone v. Bilotti, 123

 8   F.3d 75, 79 (2d Cir. 1997) (internal quotation marks and citations omitted). “To establish

 9   reasonable suspicion, [officers] must point to specific objective facts and rational inferences that

10   they are entitled to draw from those facts in light of their experience. The standard requires

11   individualized suspicion, specifically directed to the person who is targeted for the strip search.”

12   Id. (internal quotation marks and citations omitted).

13          Whether a particular strip search is constitutional “turns on an objective assessment of the

14   . . . facts and circumstances confronting [the searching officer] at the time, and not on the

15   officer’s actual state of mind at the time” of the search. Maryland v. Macon, 472 U.S. 463, 470-

16   71 (1985) (internal quotation marks and citations omitted); see also Simms v. Village of Albion,

17   N.Y., 115 F.3d 1098, 1108 (2d Cir. 1997). In other words, the fact that the officer who actually

18   conducted the search did “not have the state of mind which is [hypothesized] by the reasons

19   which provide the legal justification for the [search] does not invalidate the [search] as long as

20   the circumstances, viewed objectively, justify that [search].” Scott v. United States, 436 U.S.

21   128, 138 (1978). Thus, even if there were a departmental policy of strip searching all arrestees

22   without making any assessment of particularized circumstances, the relevant question is still: Do


                                                      -8-
 1   the circumstances of Hartline’s arrest support a reasonable suspicion that she was secreting

 2   contraband on her person?

 3           We believe they do not. Indeed, it is hard to imagine how the facts of this case could

 4   have led a reasonable officer in Officer Gallo’s position to suspect that Hartline was illicitly

 5   concealing drugs on her person. Officer Gallo had no reason to believe that Hartline was under

 6   the influence of narcotics at the time of her arrest. Officer Gallo found no useable narcotics in

 7   Hartline’s vehicle, nor did he see Hartline take any suspicious actions which might have

 8   suggested she was hiding something as he approached her vehicle. Officer Gallo did not notice

 9   anything about Hartline’s physical appearance that suggested she was secreting drugs on her

10   person, nor did he engage in a less invasive pat down search that suggested the presence of

11   contraband. Hartline answered every question that Officer Gallo asked her about drugs

12   truthfully, yet Gallo did not even ask Hartline if she had any drugs on her person. Furthermore,

13   Harline had been arrested for nothing more serious than a B-misdemeanor.4 See Foote v. Spiegel,

14   118 F.3d 1416, 1425 (10th Cir. 1997) (“[A] strip search of a person arrested for driving while

15   under the influence of drugs . . . is not justified in the absence of reasonable suspicion that the

16   arrestee has drugs . . . hidden on . . . her person. . . . [T]his court expressly rejected the

17   proposition that it is reasonable to strip search every inmate booked on a drug related charge. . .

18   .”); Way v. County of Ventura, 445 F.3d 1157, 1162 (9th Cir. 2006) (arrest for misdemeanor drug

19   offense does not support reasonable suspicion necessary to justify strip search).



             4
              In fact, though Hartline was initially charged with a misdemeanor, according to
     Hartline’s evidence, an infraction would have been the more appropriate charge under New York
     law. See NY Penal Law §§ 221.05, 221.10. All of the charges against Hartline were eventually
     dismissed.

                                                        -9-
 1          Indeed, these facts are far removed from the facts of the only Second Circuit case that

 2   Defendants argue justifies their search, United States v. Asbury, 586 F.2d 973 (2d Cir. 1978).

 3   Defendants point not to our holding in Asbury – which involves a border search, rather than a

 4   search incident to arrest – but rather to the case’s list of “factors which may be taken into account

 5   in determining the issue of [the] reasonableness” of a search, including: (1) excessive

 6   nervousness; (2) unusual conduct; (3) an informant’s tip; (4) computerized information showing

 7   pertinent criminal propensities; (5) loose-fitting or bulky clothing; (6) an itinerary suggestive of

 8   wrongdoing; (7) discovery of incriminating matter during routine searches; (8) lack of

 9   employment or a claim of self-employment; (9) needle marks or other indications of drug

10   addiction; (10) information derived from the search or conduct of a traveling companion; (11)

11   inadequate luggage; and (12) evasive or contradictory answers. Id. at 976-77. However, of these

12   factors, only the fifth and seventh apply in this case, and, in context, neither gave strong support

13   for an inference that Hartline was secreting drugs on her person, much less in her person. That

14   is, Hartline’s arguably “bulky” clothing was perfectly appropriate given the cold January weather,

15   she voluntarily handed her jacket to an officer at the station before she was strip searched, and

16   she readily admitted to the presence of all “incriminating matter” pre-discovery by Officer Gallo.

17   As a result, Asbury can hardly be said to provide meaningful support for Defendants’ contention

18   that Hartline’s strip search was justified by reasonable suspicion.

19          Ultimately, if the facts of this case amount to reasonable suspicion, then strip searches

20   will become commonplace. Given the uniquely intrusive nature of strip searches, as well as the

21   multitude of less invasive investigative techniques available to officers confronted by

22   misdemeanor offenders, that result would be unacceptable in any society that takes privacy and


                                                     -10-
 1   bodily integrity seriously.5 Thus, we must conclude that Hartline’s Fourth Amendment rights

 2   were violated, because she was subjected to a strip search by the Southampton Police in the

 3   absence of reasonable suspicion that she was secreting contraband on her person.

 4                                                     B

 5          Defendants argue that even if Hartline’s Fourth Amendment rights were violated, the

 6   individual officers are still entitled to summary judgment on the issue of qualified immunity.

 7   “Qualified immunity shields government officials from liability for civil damages as a result of

 8   their performance of discretionary functions, and serves to protect government officials from the

 9   burdens of costly, but insubstantial, lawsuits.” Lennon v. Miller, 66 F.3d 416, 420 (2d Cir.

10   1995). A police officer is entitled to qualified immunity if (1) his conduct does not violate a

11   clearly established constitutional right, or (2) it was “objectively reasonable” for the officer to

12   believe his conduct did not violate a clearly established constitutional right. Id. Thus, a

13   defendant is entitled to summary judgment

14          if [he] “adduce[s] sufficient facts [such] that no reasonable jury, looking at the evidence
15          in the light most favorable to, and drawing all inferences most favorable to, the plaintiffs,
16          could conclude that it was objectively unreasonable for the defendant[ ]” to believe that
17          he was acting in a fashion that did not clearly violate an established federally protected
18          right.
19
20   Robison v. Via, 821 F.2d 913, 921 (2d Cir. 1987) (quoting Halperin v. Kissinger, 807 F.2d 180,

21   189 (D.C. Cir. 1986) (Scalia, J., sitting by designation)).


            5
              We note that this case presents a markedly different set of circumstances than those
     addressed by the standard of the “special needs” of penal or other institutions to conduct strip
     searches by reason of the presence of a larger, or dangerous, or vulnerable population, where
     introduction of secreted contraband from the outside raises a substantial risk of harm. See N.G.
     v. Connecticut, 382 F.3d 225, 234-37 (2d Cir. 2004); Covino v. Patrissi, 967 F.2d 73, 76-80 (2d
     Cir. 1992). No such special needs exist where, as here, an arrestee is taken to an empty cell for
     purposes of an evidentiary search, subsequent booking, and release.

                                                      -11-
 1          Defendants do not dispute that for more than twenty years this Court has held that a

 2   misdemeanor arrestee may not be strip searched in the absence of individualized reasonable

 3   suspicion that she is secreting contraband. See, e.g., Wachtler v. County of Herkimer, 35 F.3d 77,

 4   81 (2d Cir. 1994); Walsh v. Franco, 849 F.2d 66, 68-69 (2d Cir. 1988); Weber v. Dell, 804 F.2d

 5   796, 802 (2d Cir. 1986). Instead, Defendants argue that we should find, as we did in Wachtler,

 6   that though “the Fourth Amendment proscription of strip-searches of misdemeanor arrestees

 7   without reasonable suspicion is clearly enough established to preclude the defense of qualified

 8   immunity . . ., we cannot say on the somewhat unique facts before us that it is clearly established

 9   that no ‘reasonable suspicion’ justified a strip-search in this case.” Wachtler, 35 F.3d at 81

10   (internal citation omitted).

11          We reject the analogy Defendants attempt to draw between the circumstances facing the

12   officers in Wachtler and those facing the officers in this case. In Wachtler, any number of the

13   factors that we identified as relevant to the reasonableness of a search in Asbury were present,

14   including: unusual conduct by the arrestee; the discovery of incriminating matter during a routine

15   search of the arrestee; and the arrestee’s evasive and contradictory responses to questioning. See

16   Asbury, 586 F.2d at 976-77. In particular, Wachtler, who was arrested for speeding, refused to

17   provide his name or driver’s license to the arresting officers or to the judge at his arraignment,

18   and was found to be carrying $1000 on his person but claimed indigency and refused to post bail

19   in the amount of $250. See Wachtler, 35 F.3d at 79. Moreover, Wachtler was strip searched as a

20   precursor to being confined in Herkimer County Jail, while Hartline appears to have been

21   confined solely for the purpose of being strip searched. Id.; see also N.G., 382 F.3d at 230-32

22   (explaining that “special needs” of government related to lawful confinement may be relevant to


                                                     -12-
 1   Fourth Amendment reasonableness analysis in context of strip searches). Indeed, in Wachtler we

 2   declined to reach the ultimate issue of whether Wachtler’s Fourth Amendment rights were

 3   violated by the defendants’ strip search. On the contrary, in this case, we conclude without

 4   hesitation that Hartline’s rights were violated.

 5             It is true that this Court has never decided a case with facts just like those now before us.

 6   However, we have also never decided a case suggesting that a strip search on these facts would

 7   be constitutionally permissible. Thus, we are comfortable concluding that in the absence of

 8   indicia that this Court has found to support individualized reasonable suspicion in the past, a

 9   reasonable jury might determine that Defendants were acting in a fashion that clearly violated

10   Hartline’s Fourth Amendment rights. See Robison, 821 F.2d at 921. Defendants are therefore

11   not entitled to summary judgment on the issue of qualified immunity. Accordingly, we vacate

12   the district court’s grant of summary judgment to the individual defendants with regard to

13   Hartline’s § 1983 claim predicated on the officers’ lack of reasonable suspicion for their strip

14   search.

15                                                       C

16             To prevail against a municipality on a § 1983 claim, a plaintiff must demonstrate both an

17   injury to a constitutionally protected right and that the injury “was caused by a policy or custom

18   of the municipality or by a municipal official ‘responsible for establishing final policy.’” Skehan

19   v. Village of Mamaroneck, 465 F.3d 96, 108-09 (2d Cir. 2006), overruled on other grounds by

20   Appel v. Spiridon, 531 F.3d 138, 140 (2d Cir. 2008); see also Monell, 436 U.S. at 694. Thus, to

21   prevail against the Village of Southampton, Hartline must demonstrate that she was subjected to

22   an unconstitutional strip search by the Southampton Police pursuant to departmental policy.


                                                        -13-
 1          Although the district court recognized that Hartline had adduced some evidence

 2   “suggesting that Southampton exercised a policy of strip searching females in violation of their

 3   constitutional rights,” it granted summary judgment to the municipal defendant on the grounds

 4   that Hartline had not demonstrated that the strip search she was subjected to was

 5   unconstitutional. Hartline, 2006 U.S. Dist. LEXIS 75849, at *26. Because we have already held

 6   that the strip search violated Hartline’s Fourth Amendment rights, and because even Defendants

 7   do not (and cannot) seriously contest the fact that Hartline has amassed sufficient evidence that

 8   her strip search was conducted pursuant to municipal policy to survive summary judgment, we

 9   vacate the district court’s grant of summary judgment to the Village of Southampton on this §

10   1983 claim.

11                                                    II

12          The district court also granted summary judgment to Defendants on Hartline’s alternative

13   ground for her § 1983 claim – namely, that the officers violated her Fourth Amendment rights by

14   telecasting her strip search through the police station – on the theory that she had “effectively

15   waived” it by failing to discuss it in her memo in opposition to Defendants’ motion for summary

16   judgment. We think that Hartline had adequately disputed this issue in her papers. She expressly

17   contested this issue in her counterstatement of material facts responding to Defendant’s motion,

18   and in her reply affidavit under the express heading, “Broadcast of Search.” Indeed, Defendants

19   conceded at oral argument that the court erred in finding waiver. Moreover, Defendants also

20   acknowledged in their brief that Hartline’s allegation of telecasting “goes to the heart of the

21   reasonableness inquiry of the search vis-a-vis the scope of the intrusion and the manner and place

22   in which the search was conducted.” See generally Bell v. Wolfish, 441 U.S. 520 (1979).


                                                     -14-
1   Accordingly, we vacate the portion of the judgment that dismissed Hartline’s claim predicated on

2   the telecast of the search.6

3                                            CONCLUSION

4           The district court’s grant of summary judgment to the individual defendants and the

5   Village of Southampton on Hartline’s § 1983 claims is vacated. The district court’s dismissal

6   without prejudice of Hartline’s state law claims is vacated. The remaining parts of the district

7   court’s opinion are affirmed.7 This case is remanded to the district court for proceedings in

8   accordance with this opinion.




            6
              While Defendants maintain the surveillance system did not telecast images from the
    female cell elsewhere in the station, Hartline’s evidence on this point is sufficient to raise a
    genuine issue of material fact and thus to survive summary judgment. The district court did not
    find otherwise.
            7
                See supra note 3.

                                                   -15-
