14-1388-cv (L)
In re Nassau Cty. Strip Search Cases


14-1388-cv (L)
In re Nassau Cty. Strip Search Cases

                                            UNITED STATES COURT OF APPEALS
                                               FOR THE SECOND CIRCUIT

                                               SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed
on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a
document filed with this Court, a party must cite either the Federal Appendix or an
electronic database (with the notation “summary order”). A party citing a summary order
must serve a copy of it on any party not represented by counsel.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 26th day of February, two thousand sixteen.

PRESENT:                 JOSÉ A. CABRANES,
                         ROSEMARY S. POOLER,
                         DENNY CHIN,
                                      Circuit Judges.


IN RE NASSAU COUNTY STRIP SEARCH CASES

GARDY AUGUSTIN, HEIDI KANE, MARY KATHERINE
PUGLIESE, GREGG WILLS, STEVEN ROTH, OSCAR
AVELAR, RALPH DILIELLO, JOHN IAFFALDANO,
FRANCIS O’DAY, AND STUART MOSKOWITZ, ON
BEHALF OF THEMSELVES AND OTHER SIMILARLY
SITUATED,

                         Plaintiffs-Appellees-Cross-Appellants,

                                       v.                             Nos. 14-1388-cv (Lead), 14-1437-cv (XAP)

NASSAU COUNTY SHERIFF’S DEPARTMENT, DIVISION
OF CORRECTION, NASSAU COUNTY, AND JOSEPH
JABLONSKY, NASSAU COUNTY SHERIFF,

                         Defendants-Appellants-Cross-Appellees.


FOR PLAINTIFFS-APPELLEES:                                                ROBERT L. HERBST, Herbst Law PLLC,
                                                                         New York, NY.

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In re Nassau Cty. Strip Search Cases




                                                            Jeffrey G. Smith, Wolf Haldenstein Adler
                                                            Freeman & Herz LLP, New York, NY.

                                                            Matthew D. Brinckerhoff, Emery Celli
                                                            Brinckerhoff & Abady LLP, New York,
                                                            NY.

                                                            Jonathan C. Moore, Beldock Levine &
                                                            Hoffman LLP, New York, NY.

FOR DEFENDANTS-APPELLANTS:                                  ROBERT F. VAN DER WAAG for Carnell T.
                                                            Foskey, Nassau County Attorney,
                                                            Mineola, NY.

       Appeal from a judgment of the United States District Court for the Eastern District of New
York (Denis R. Hurley, Judge).

     UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED.

         Plaintiffs are a class of persons “arrested on misdemeanor charges unrelated to weapons or
drugs and thereafter strip searched, without individualized suspicion,” at the Nassau County
Correctional Center (the “NCCC”), in accordance with a “blanket policy” in effect at NCCC prior
to 1999. See In re Nassau Cty. Strip Search Cases, 461 F.3d 219, 222–23 (2d Cir. 2006). In Shain v.
Ellison, 53 F. Supp. 2d 564 (E.D.N.Y. 1999), a district court in the Eastern District of New York
held that this policy violated clearly established Fourth Amendment law. We affirmed, explaining
“that persons charged with a misdemeanor and remanded to a local correctional facility like NCCC
have a right to be free of a strip search absent reasonable suspicion that they are carrying contraband
or weapons.” See Shain v. Ellison, 273 F.3d 56, 66 (2d Cir. 2001).

         In the wake of Shain, plaintiffs brought the instant action, in which they alleged that their
strip searches violated 42 U.S.C. § 1983, the Fourth, Fifth, Eighth, and Fourteenth Amendments to
the United States Constitution, and Article 1, Section 12 of the New York State Constitution. See In
re Nassau Cty. Strip Search Cases, 461 F.3d at 222. In response to a class-certification motion that
plaintiffs filed in 2003, defendants “conceded the one common issue that in their view might be
appropriate for class certification[—]namely, whether the NCCC’s strip search policy during the
class period was constitutional. Specifically, defendants recognized that they are bound by Shain
under the doctrine of collateral estoppel.” Id. at 224 (alterations and internal quotation marks
omitted). The District Court thereafter certified a class as to liability, and—“in light of defendants’
concession of liability to all class members”—“entered summary judgment on liability for all strip
searches upon admission to the NCCC” with respect to plaintiffs’ federal and state claims. In re


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Nassau Cty. Strip Search Cases, 958 F. Supp. 2d 339, 341 (E.D.N.Y. 2013) (alteration and internal
quotation marks omitted).

        Almost five-and-a-half years after the District Court entered judgment, however, the
Supreme Court decided Florence v. Board of Chosen Freeholders of County of Burlington, 132 S. Ct. 1510
(2012), in which it considered “whether undoubted security imperatives involved in jail supervision
override the assertion that some detainees must be exempt from [strip searches] absent reasonable
suspicion of a concealed weapon or other contraband.” Id. at 1518. The Court answered that
question in the negative. See id. at 1523 (holding that the challenged search procedures “struck a
reasonable balance between inmate privacy and the needs of the institutions”).

         Following the Court’s decision in Florence, defendants “assert[ed] that . . . Florence represents
an intervening change of controlling law that should lead the [District] Court to vacate its prior
order granting summary judgment for plaintiffs on the issue of liability and to instead enter summary
judgment for defendants dismissing the case.” In re Nassau Cty. Strip Search Cases, 958 F. Supp. 2d at
342 (alteration and internal quotation marks omitted). In support of this argument, defendants cited
Rule 54(b) of the Federal Rules of Civil Procedure, which grants “a district court . . . authority to
revise an interlocutory order . . . at any time before the entry of final judgment,” Bergerson v. N.Y.
State Office of Mental Health, Cent. N.Y. Psychiatric Ctr., 652 F.3d 277, 288 (2d Cir. 2011), for “cogent
and compelling reasons such as an intervening change of controlling law,” Starbucks Corp. v. Wolfe’s
Borough Coffee, Inc., 736 F.3d 198, 208 (2d Cir. 2013) (internal quotation marks omitted).

        In a thorough and well-reasoned decision, the District Court found that Florence represented
an intervening change of controlling law with respect to plaintiffs’ federal-law claims, but not with
respect to plaintiffs’ state-law claims. See In re Nassau Cty. Strip Search Cases, 958 F. Supp. 2d at 354.
We agree.

        Turning first to the state-law question, the dispositive word from the Rule 54(b) framework
described above is “controlling.” We fail to see how Florence—in which the United States Supreme
Court interpreted the Fourth Amendment to the United States Constitution—could possibly control
the meaning of Article I, Section 12 of the New York State Constitution. Indeed, we fail to see how a
Supreme Court decision interpreting any federal constitutional provision could ever control the
meaning of an analogous state constitutional provision, at least absent extraordinary circumstances
not presented here. See California v. Greenwood, 486 U.S. 35, 43 (1988) (“Individual States may surely
construe their own constitutions as imposing more stringent constraints on police conduct than
does the Federal Constitution.”); McGrath v. Toys “R” Us, Inc., 356 F.3d 246, 250 (2d Cir. 2004)
(“State courts are not bound to interpret state laws in accordance with federal court interpretations
of analogous federal statutes . . . .”); People v. Harris, 570 N.E.2d 1051, 1053 (N.Y. 1991) (“Our
federalist system of government necessarily provides a double source of protection and State courts,
when asked to do so, are bound to apply their own Constitutions notwithstanding the holdings of
the United States Supreme Court.” (citation omitted)).

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         Such circumstances might include, for example, a ruling by a state’s highest court that state
courts interpreting a particular state constitutional provision were bound by the Supreme Court’s
interpretation of an analogous federal constitutional provision. As the District Court in this case
correctly observed, however, the New York Court of Appeals has not so ruled. To the contrary, “on
many occasions[, it has] interpreted [the New York State] Constitution to provide greater
protections when circumstances warrant and ha[s] developed an independent body of state law in
the area of search and seizure,” especially “when doing so promotes predictability and precision in
judicial review of search and seizure cases and the protection of the individual rights of [New York
State’s] citizens.” People v. Weaver, 909 N.E.2d 1195, 1202 (N.Y. 2009) (internal quotation marks
omitted).

         Turning next to the federal-law question, we begin by noting that the questions presented in
Shain and Florence were virtually identical. Compare Shain, 273 F.3d at 59 (“This appeal requires us to
determine whether it [is] clearly established . . . that corrections officers in a local correctional facility
[cannot] perform a strip search including a non-intrusive examination of body cavities on an
individual arraigned on misdemeanor charges unless the officers had reasonable suspicion that the
individual possessed contraband or weapons.”), with Florence, 132 S. Ct. at 1518 (“The question here
is whether undoubted security imperatives involved in jail supervision override the assertion that
some detainees must be exempt from the more invasive search procedures at issue absent
reasonable suspicion of a concealed weapon or other contraband.”). The fact that the Supreme
Court reached a conclusion opposite to ours in response to that question demonstrates in and of
itself that Florence represents an intervening change of controlling law with respect to plaintiffs’
federal-law claims. Cf. Gonzalez v. City of Schenectady, 728 F.3d 149, 161 (2d Cir. 2013) (“Shain is likely
no longer good law in light of Florence . . . .”). But certain of Florence’s features also buttress our
determination in this regard.

        For example, in describing the circuit split that led to its grant of certiorari, the Supreme
Court observed that “[s]ome Federal Courts of Appeals have held that corrections officials may not
conduct a strip search of” “offenders suspected of committing minor offenses” “absent reasonable
suspicion of concealed contraband”—the position that the Court ultimately rejected—but that
“[t]he Courts of Appeals to address this issue in the last decade . . . have come to the opposite
conclusion”—the position that the Court ultimately adopted. Florence, 132 S. Ct. at 1518. For a
description of the former category of cases, the Supreme Court cited the Third Circuit decision on
review, which itself cited Shain as an example of the position it was rejecting. See id. (citing Florence v.
Bd. of Chosen Freeholders of City of Burlington, 621 F.3d 296, 303–04 & n.4 (3d Cir. 2010)). This provides
further evidence that Florence abrogated Shain.

       Plaintiffs attempt to distinguish the present case on the ground that “Florence’s
holding . . . was narrowly tailored to apply only to those who are committed to the general
population of a jail.” Pls.’ Br. 18. They argue that Florence is inapplicable here because “[t]here was a


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clear distinction between most of the Jail, in which the general population inmates were housed, and
the separate new admit housing facilities, where all new admits were housed specifically to isolate
them from the general inmate population.” Id. at 17. But as the following passage from Florence
demonstrates, plaintiffs’ interpretation of the Supreme Court’s use of the phrase “general
population” is untenable:

            This case does not require the Court to rule on the types of searches that would be
            reasonable in instances where, for example, a detainee will be held without
            assignment to the general jail population and without substantial contact with other
            detainees. This describes the circumstances in Atwater. See 532 U.S., at 324, 121 S.
            Ct. 1536 (“Officers took Atwater’s ‘mug shot’ and placed her, alone, in a jail cell for
            about one hour, after which she was taken before a magistrate and released on $310
            bond”). The accommodations provided in these situations may diminish the need to
            conduct some aspects of the searches at issue. Cf. United States Brief 30 (discussing
            the segregation, and less invasive searches, of individuals held by the Federal Bureau
            of Prisons for misdemeanors or civil contempt).

132 S. Ct. at 1522–23 (emphasis supplied).

         Thus, the Supreme Court indicated that categorically strip-searching the following two
classes of detainees may not pass constitutional muster: (1) detainees charged with misdemeanors
and segregated alone from the general population; and (2) detainees charged with misdemeanors and
segregated with other detainees charged with misdemeanors from the general population. Plaintiffs here
clearly do not fall into the first class, but they do not fall into the second either. As plaintiffs
repeatedly acknowledge throughout their brief, all new arrestees, not just those charged with
misdemeanors, were sent to the separate new-admit housing facilities. See, e.g., Pls.’ Br. 49 (“[E]very
new arrestee admitted to the Jail and strip searched was isolated for 72 hours . . . .” (emphasis
supplied) (internal quotation marks omitted)); id. at 50 (“[A]ll new admits [were held] out of the
general population for a significant period of time . . . .” (emphasis supplied)). In other words, “[t]he
new admits [were] not segregated by offense”—new admits charged with misdemeanors and new
admits charged with felonies were segregated together. Id. at 49.

         Also unpersuasive is plaintiffs’ argument that Florence is inapplicable because the Supreme
Court recognized that it had not been “presented [with] the opportunity to consider a narrow
exception of the sort Justice Alito describe[d]” in his concurrence, “which might restrict whether an
arrestee [(1)] whose detention has not yet been reviewed by a magistrate or other judicial officer, and
[(2)] who can be held in available facilities removed from the general population, may be subjected
to the types of searches at issue.” Florence, 132 S. Ct. at 1523; see also Pls.’ Br. at 43. Assuming that
plaintiffs can satisfy the second prong of this exception (which seems unlikely, as discussed in the
preceding paragraph), they do not even claim that they can satisfy the first. Rather, they state only
that “many class members had not had their detention reviewed by a judicial officer at the time they

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were admitted to the Jail and strip searched.” Pls.’ Br. 43 (emphasis supplied). As support for this
notion, plaintiffs cite the declarations of three class members—three, out of a class of 17,000. Id.
This calls into grave doubt whether, as to plaintiffs’ federal-law claims, “questions of law or fact
common to class members predominate over . . . questions affecting only individual members, and
that a class action is superior to other available methods for fairly and efficiently adjudicating the
controversy.” Fed. R. Civ. P. 23(b)(3); see also Teamsters Local 445 Freight Div. Pension Fund v. Bombardier
Inc., 546 F.3d 196, 204 (2d Cir. 2008) (holding that it is the plaintiff’s burden to prove predominance
by a preponderance of the evidence).

        For all of these reasons, we agree with the District Court that Florence represents an
intervening change of controlling law with respect to plaintiffs’ federal-law claims.

                                            CONCLUSION

       We have considered all of the parties’ other arguments on appeal and found them to be
without merit. Accordingly, we AFFIRM the District Court’s judgment.

                                                          FOR THE COURT:
                                                          Catherine O’Hagan Wolfe, Clerk




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