USCA1 Opinion
United States Court of Appeals
For the First Circuit
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No. 96-2035
KELLI SWAIN,
Plaintiff, Appellant,
v.
LAURA SPINNEY, EDWARD HAYES, AND THE TOWN OF NORTH READING,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George A. O'Toole, Jr., U.S. District Judge]
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Before
Stahl, Circuit Judge
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Bownes, Senior Circuit Judge
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and Lynch, Circuit Judge.
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Michael Tyler, with whom Michael Edward Casey was on brief, for
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appellant.
Douglas I. Louison, with whom Regina M. Gilgun and Merrick &
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Louison were on brief, for appellees.
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June 25, 1997
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LYNCH, Circuit Judge. Kelli Swain was subjected to
LYNCH, Circuit Judge.
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a strip search and visual body cavity inspection, while being
held in a cell in the North Reading, Massachusetts police
station. This search occurred after Swain had been in the
cell for twenty minutes, and more than an hour after she was
arrested. She was arrested with her boyfriend as a result of
his shoplifting; she was suspected of having possessed a
small baggie of marijuana. The search was ordered, she says,
by a police officer immediately after he had interrogated
her, while knowing she was represented by counsel. He had
become angry with Swain for saying she knew nothing about her
boyfriend's shoplifting. Swain's boyfriend, who was also in
custody, whose shoplifting had triggered the arrests, and who
had an extensive criminal record, including drug crimes, was
not strip-searched. The charges against Swain were
eventually nol prossed.
Swain brought suit under 42 U.S.C. 1983 and Mass.
Gen. Laws ch. 12, 11H, 11I, alleging that the search
humiliated her and caused lasting emotional damage. The
district court granted summary judgment for the defendants.
The court held that there were no material facts in dispute
which would support Swain's claims that the search was not
reasonable under the Fourth Amendment and that the officers
were not entitled to immunity. We hold that, as alleged by
Swain, a jury could find that the search was not justified by
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a reasonable suspicion, and that the jury should have the
opportunity to resolve the factual disputes pertinent to the
issue of whether the officers were entitled to the
protections of qualified immunity. Swain fails, however, to
meet the exacting standards for municipal liability under
1983, even on her version of the facts. Accordingly, the
judgment of the district court with respect to the individual
defendants is reversed, but the grant of summary judgment as
to the Town of North Reading is affirmed.
I.
We review the facts in the light most favorable to
Swain, the party opposing summary judgment. On May 18, 1993,
Kelli Swain and her boyfriend, Christopher Milbury, went
apartment hunting in the Danvers, Massachusetts area. Around
10:00 a.m., after the couple had been driving for a little
while, Milbury told Swain that he needed to pick up some
things at Moynihan Lumber. Swain waited in the car while
Milbury went into the store; he was gone about ten minutes.
When Milbury got back, he placed a bag behind the seat and
started to leave the parking lot. As they drove out of the
parking lot, Swain saw Moynihan Lumber employees pointing at
the car; she also saw a police cruiser pulling into the lot
just as she and Milbury were pulling out.
Swain became very upset. She began questioning
Milbury about what was going on. Then, after they had driven
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200 or 300 yards, the police cruiser, which had been
following the couple since the parking lot, turned on its
blue lights and its siren; Milbury pulled their car over.
Officer Robert Marchionda then approached the vehicle and
Milbury got out of the car. Swain remained in the car for a
minute or two, and then got out when she saw Milbury being
handcuffed. As Swain got out, she dropped a baggie of
marijuana on the ground about three feet away from the car.
Officer Marchionda had seen Swain put her hands behind her
back and drop an object onto the grass, but could not, at
that point, identify the object. Officer Marchionda radioed
for backup, and another officer, Officer Romeo, arrived soon
thereafter. Swain then approached the officers, but was
stopped by one of them, who restrained her with his hands.
She asked what was going on, and was told that Milbury was
suspected of taking things from Moynihan Lumber. Officer
Marchionda then arrested Swain and handcuffed her. While he
was handcuffing her, he saw that the dropped object was a
baggie of marijuana. He retrieved it. Swain was pat frisked
at the scene, but nothing was found on her person.
When the police searched the car, they found $400
worth of hardware in the trunk, which had been taken from
another store in Gloucester, Massachusetts, and another $400
worth of sawblades, wrapped in a hardware flyer, under the
front seat. Swain was surprised to see the merchandise
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there. The police implied that she was an accomplice to
Milbury's theft; she kept saying that she did not know
anything about it. Milbury also told the police that Swain
was innocent.
Neither of the officers ever asked her about the
marijuana on the ground. Swain did not see anyone pick up
the marijuana and did not know if anyone had seen her drop
it.
After about thirty minutes at the scene, Swain and
Milbury were transported in a police cruiser to the North
Reading Police Station. When she got to the station, her
handcuffs were removed. Swain was seated at a booking desk,
and an officer had her sign a rights card. Matron Laura
Spinney, the chief of police's secretary, was called to the
booking desk because a female was under arrest.
While in the booking area, Swain asked to go to the
bathroom. Matron Spinney escorted her to a bathroom, but
did not come in with her. Swain was allowed to close the
door almost all of the way, leaving it open just a little.
Spinney stood outside the door to the room, where she could
hear Swain using the facilities, but could not see Swain.
Swain then returned to the booking area, and was told that
she could make a phone call. She was shown to a small
office, and a police officer stood outside. She called her
attorney and spoke with him for five to ten minutes.
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While Swain was seated in the booking area, her
pocketbook was searched by Spinney. Spinney found cigarette
rolling papers in the pocketbook. No one discussed these
papers with Swain. At that point, one of the officers
advised Swain that marijuana had been found at the scene and
that she was going to be charged in connection with it.
Swain denied that it was her marijuana.
Swain was then fingerprinted and photographed.
Officer Ed Hayes, the prosecuting officer and detective
department supervisor, ordered Matron Spinney to take Swain
to a cell. Spinney pat frisked Swain before taking her to
the cell and found nothing on her. Swain was left alone in
the cell for about twenty minutes. According to Swain,
Sergeant Hayes then came to her cell and attempted to
question her about Milbury's criminal activities. Hayes
yelled at Swain, telling her that she was lying, and that she
should tell him what was going on. Swain, who was crying
hysterically, kept repeating that she honestly knew nothing.
According to Swain, Hayes' questioning lasted approximately
fifteen minutes and then he "walked out in a huff."
Hayes states that he only stayed with Swain in the
cell area for approximately one minute. He has no
recollection of what he discussed with Swain, but asserts
that it would be normal procedure for him to talk to
detainees to advise them about their arraignments. He does
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not recall interrogating Swain about Milbury's activities,
but cannot state that he did not do so. Milbury, who was
located in another cell where he could hear but not see
Swain, stated that he heard Hayes talking to her and also
heard Swain crying and saying that she was innocent.
About five to ten minutes after Hayes' departure,
Spinney returned and apologetically informed Swain that Hayes
had ordered her to strip search Swain. It is Hayes'
testimony that he believes he would have ordered such a
search prior to speaking with Swain. Spinney does not know
whether the search was ordered before or after Hayes spoke
with Swain, but knows that Hayes did not order a strip search
when he originally told Spinney to take Swain to the cell.
Spinney states, however, that the order to strip search came
almost immediately after she brought Swain to the cell, and
not a significant amount of time later.
Swain could not understand why she was being
searched and began crying again. Spinney then ordered Swain
to remove all of her clothing except for her bra. Spinney
shook out each item as Swain took it off. Spinney then made
Swain bend over and spread her buttocks. Swain was very
upset and shaking uncontrollably the entire time. Swain was
then told she could get dressed. Spinney found nothing
during her search. The entire procedure lasted fifteen
minutes. Hayes had not told Spinney what to look for, but
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Spinney knew that marijuana had been found at the scene, and
assumed that she was looking for drugs.
Swain asserts that, before she was asked to strip,
Spinney assured Swain that the video camera in the cell area
was already off. Swain did not see her turn the camera off.
Chief of Police Henry Purnell testified, however, that the
station cameras, including the one in the female cell, are
constantly left on. Videotapes are sometimes made from these
cameras, but the Department has no policies or procedures
concerning the making, storage, or retention of these tapes.
Matrons are instructed to turn the cell camera off, by
pressing a button, when conducting a search. Spinney states
that she turned the camera off with a wall switch before
searching Swain, but does not recall telling Swain that the
camera was off or making any comments about the camera at
all.
Milbury, who had an extensive criminal record, was
never strip searched. Hayes was aware of Milbury's history
of drug convictions and knew that Milbury was on probation,
having pulled the records while booking Milbury. Swain had
no prior criminal convictions.
Officer Hayes, for his part, tells a different
story. He asserts that he ordered the strip search of Swain
immediately upon his arrival at the booking desk, which
occurred as soon as he was informed that the arrests had been
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made, and, he believes, before he spoke with her. According
to Hayes, he ordered the search because the arresting officer
showed him the marijuana and informed him that Swain was a
principal suspect in a narcotics incident. He also asserts
that he suspected Swain of carrying a concealed weapon,
although he acknowledges that this was a generalized
suspicion of narcotics suspects, rather than a suspicion
based on any characteristics of Swain.
Later that day, Milbury and Swain were arraigned in
Woburn District Court and released on their own recognizance.
All charges against Swain were eventually "nol prossed" or
continued without a finding. Swain suffered continuing
emotional trauma as a result of the search and sought
counseling.
The Town of North Reading's policy on strip
searches is outlined in a memo on "Inventory Search Policy,"
prepared in 1989 by training officer Lieutenant Edward Nolan.
The Policy states that: "A strip search of the arrestee is
warranted only if the police have probable cause to believe
that the arrestee is concealing contraband or weapons on his
body." Chief Purnell testified that, in any arrest involving
drugs, all arrestees are strip searched. The shift commander
-- normally the highest-ranking officer on duty -- makes the
determination of when a strip search is warranted.
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The Municipal Police Institute (MPI), a statewide
police association, publishes a book called "Police Manual:
Policies & Procedures." Chief Purnell testified that the
North Reading police adhere to the MPI policies. The
relevant MPI policy is as follows:
A strip search of an arrestee is
warranted only if officers have
reasonable suspicion to believe that the
arrestee is concealing contraband or
weapons on his body.
1. All body strip-searches must be approved
by the officer-in-charge, who shall
consider the following question:
Is the crime one that is normally
associated with weapons or
contraband?
Only if the answer to this question is
yes and there is a reasonable suspicion
that the arrestee has weapons or
contraband on his person will a body
strip-search be authorized.
2. Body cavity searches should not be
conducted without the express approval
of the officer-in-charge, and require a
search warrant signed by a judge.
However, both Sergeant Hayes and Matron Spinney testified
that they were unaware that North Reading had any policy with
regard to strip searches. Hayes testified that it was his
policy to strip search individuals whenever narcotics were
involved in the case. Nonetheless, he did not order a strip
search of Milbury.
II.
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Swain claims, under 42 U.S.C. 1983 and Mass. Gen.
Laws ch. 12, 11H, 11I, that Laura Spinney, Edward Hayes,
and the Town of North Reading violated her rights under the
United States and Massachusetts Constitutions by subjecting
her to an unreasonable search. On defendants' motion for
summary judgment, the district court held that, under United
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States v. Klein, 522 F.2d 296 (1st Cir. 1975), the search of
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Swain was within the bounds of the Fourth Amendment. It
thought Klein unaffected by Bell v. Wolfish, 441 U.S. 520
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(1979). The district court further held that the individual
defendants were, in any event, entitled to qualified immunity
from suit. As to the Massachusetts law claims, the court
found that, in this area, Massachusetts constitutional law
tracked the federal standards. Finally, the district court
found that Swain had failed to meet the exacting standards
for municipal liability under 1983.
Swain argues on appeal that the police must have
probable cause to believe that an arrestee is concealing
weapons or contraband in order to strip search that arrestee.
She further argues that, even if the search needed only to be
supported by a reasonable suspicion, no such suspicion was
present and that the officers are thus not entitled to the
protections of qualified immunity.
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We review the district court's grant of summary
judgment de novo. EEOC v. Amego, Inc., 110 F.3d 135, 141
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(1st Cir. 1997).
III.
A strip and visual body cavity search of an
arrestee must be justified, at the least, by a reasonable
suspicion. Because a jury could find that Officer Hayes
acted without a reasonable suspicion that Swain was
concealing drugs or weapons, we find that Swain has stated a
claim against the individual defendants sufficient to
withstand a motion for summary judgment. Furthermore, while
some courts have suggested that a higher standard may be
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necessary to justify a strip search and visual body cavity
inspection, it was clearly established at the time of the
search that the Fourth Amendment requires at least a
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reasonable suspicion to conduct these types of searches.
Significant factual disputes remain, rendering it impossible
to resolve conclusively the immunity question on summary
judgment.
A. Strip Searches, Visual Body Cavity Inspections, and the
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Fourth Amendment
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"[I]n the case of a lawful custodial arrest a full
search of the person is not only an exception to the warrant
requirement of the Fourth Amendment, but is also a
'reasonable' search under that amendment." United States v.
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Robinson, 414 U.S. 218, 235 (1973). Thus, under Robinson, if
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the arrest was lawful, a searching officer does not need to
have any further justification for performing a full body
search of an arrestee. See United States v. Bizier, 113 F.3d
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214, 217 (1st Cir. 1997). Moreover, a search incident to
arrest need not occur at the scene of the arrest, but "may
legally be conducted later when the accused arrives at the
place of detention." United States v. Edwards, 415 U.S. 800,
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803 (1974).
However, Robinson did not hold that all possible
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searches of an arrestee's body are automatically permissible
as a search incident to arrest. To the contrary, any such
search must still be reasonable:
Holding the Warrant Clause inapplicable
to the circumstances present here does
not leave law enforcement officials
subject to no restraints. This type of
police conduct "must [still] be tested by
the Fourth Amendment's general
proscription against unreasonable
searches and seizures."
Edwards, 415 U.S. at 808 n.9 (quoting Terry v. Ohio, 392 U.S.
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1, 20 (1968)). In Robinson itself, the Court noted that the
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search at issue, while thorough, did not have "extreme or
patently abusive characteristics." 414 U.S. at 236 (citing
Rochin v. California, 342 U.S. 165 (1952)). Later, in
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Illinois v. Lafayette, 462 U.S. 640 (1983), the Court
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explicitly stated that "[w]e were not addressing in Edwards,
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and do not discuss here, the circumstances in which a strip
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search of an arrestee may or may not be appropriate." Id. at
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646 n.2. "Robinson simply did not authorize" a strip and
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visual body cavity search. Fuller v. M.G. Jewelry, 950 F.2d
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1437, 1446 (9th Cir. 1991); see also Mary Beth G. v. City of
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Chicago, 723 F.2d 1263, 1271 (7th Cir. 1983)("[T]he Robinson
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court simply did not contemplate the significantly greater
intrusions that occur[]" in a visual body cavity
inspection.).
A strip and visual body cavity search thus requires
independent analysis under the Fourth Amendment. In Bell v.
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Wolfish, 441 U.S. 520 (1979), the Supreme Court noted that
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"[t]he test of reasonableness under the Fourth Amendment is
not capable of precise definition or mechanical application."
Id. at 559. Rather, the evaluation of the constitutionality
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of a warrantless search
requires a balancing of the need for the
particular search against the invasion of
personal rights that the search entails.
Courts must consider the scope of the
particular intrusion, the manner in which
it is conducted, the justification for
initiating it, and the place in which it
is conducted.
Id. In Wolfish, the Supreme Court applied this balancing
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test to a prison policy that required arraigned pre-trial
detainees to "expose their body cavities for visual
inspection as a part of a strip search conducted after every
contact visit with a person from outside the institution."
Id. at 558. Noting that "this practice instinctively gives
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[the Court] the most pause," id. at 559, the Court found only
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that visual body cavity searches can "be conducted on less
than probable cause." Id. at 560. In so holding, Wolfish
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"did not, however, read out of the Constitution the provision
of general application that a search be justified as
reasonable under the circumstances." Weber v. Dell, 804 F.2d
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796, 800 (2d Cir. 1986).
In applying the Wolfish balancing test to searches
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of the type to which Swain was subjected, courts have
recognized that strip and visual body cavity searches impinge
seriously upon the values that the Fourth Amendment was meant
to protect. These searches require an arrestee not only to
strip naked in front of a stranger, but also to expose the
most private areas of her body to others. This is often, as
here, done while the person arrested is required to assume
degrading and humiliating positions. Our circuit has
"recognize[d], as have all courts that have considered the
issue, the severe if not gross interference with a person's
privacy that occurs when guards conduct a visual inspection
of body cavities." Arruda v. Fair, 710 F.2d 886, 887 (1st
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Cir. 1983). The Seventh Circuit has described "strip
searches involving the visual inspection of the anal and
genital areas as demeaning, dehumanizing, undignified,
humiliating, terrifying, unpleasant, embarrassing, repulsive,
signifying degradation and submission." Mary Beth G., 723
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F.2d at 1272 (internal quotation marks omitted); see also
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Wood v. Clemons, 89 F.3d 922, 928 (1st Cir 1996) ("[A] strip
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search can hardly be characterized as a routine procedure or
as a minimally invasive means of maintaining prison security.
Indeed, a strip search, by its very nature, constitutes an
extreme intrusion upon personal privacy, as well as an
offense to the dignity of the individual."); Kennedy v. Los
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Angeles Police Dep't, 901 F.2d 702, 711 (9th Cir.
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1990)("Strip searches involving the visual exploration of
body cavities are dehumanizing and humiliating.").
On the other side of the scales, courts must weigh
the legitimate needs of law enforcement. Institutional
security has been found to be a compelling reason for
conducting warrantless strip and visual body cavity searches.
See, e.g., Wolfish, 441 U.S. at 559 (prisoner strip searches
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after contact visits justified because detention facility "is
a unique place fraught with serious security dangers"). Some
courts have held that a warrantless strip search may also be
justified by the need to discover and preserve concealed
evidence of a crime. See, e.g., Justice v. Peachtree City,
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961 F.2d 188, 193 (11th Cir. 1992). But see Fuller, 950 F.2d
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at 1446 (strip and visual body cavity search with less than
probable cause only permitted to protect institutional safety
and security; search for evidence must be justified by
probable cause).
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Balancing these interests, courts have concluded
that, to be reasonable under Wolfish, strip and visual body
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cavity searches must be justified by at least a reasonable
suspicion that the arrestee is concealing contraband or
weapons.1 See, e.g, Justice, 961 F.2d at 192; Masters v.
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Crouch, 872 F.2d 1248, 1255 (6th Cir. 1989); Weber, 804 F.2d
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at 802; Stewart v. Lubbock County, 767 F.2d 153, 156 (5th
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Cir. 1985); Giles v. Ackerman, 746 F.2d 614, 615 (9th Cir.
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1984); Mary Beth G., 723 F.2d at 1273. This court has held
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that the reasonable suspicion standard is the appropriate one
for justifying strip searches in other contexts. See Wood,
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89 F.3d at 929 (prison visitors); United States v.
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Uricoechea-Casallas, 946 F.2d 162, 166 (1st Cir. 1991)(non-
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routine border searches); cf. Burns v. Loranger, 907 F.2d
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233, 236-38 (1st Cir. 1990) (officers protected by qualified
immunity for warrantless strip search of arrestee where there
were exigent circumstances and probable cause to believe
controlled substance would be found on arrestee's person).
Accordingly, it is clear that at least the reasonable
suspicion standard governs strip and visual body cavity
searches in the arrestee context as well.
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1. As noted above, the Ninth Circuit has held that, absent a
threat to institutional security, the higher showing of
probable cause is required to justify such a search. Fuller,
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950 F.2d at 1446.
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Defendants, and the court below, rely upon United
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States v. Klein, 522 F.2d 296 (1st Cir. 1975). In that case,
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the defendant, who was arrested after a sale of cocaine, was
subjected to a strip search, including a visual inspection of
his rectum. Id. at 299. This court approved that search as
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"[a] post-arrest search of the person, plainly approved by
Edwards," and found that a lack of individualized suspicion
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that the suspect was harboring evidence did not render the
search unreasonable. Id. at 300 & n.2.
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Klein was decided before significant Supreme Court
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precedent in the area, and we are bound by the Supreme
Court's developing doctrine. Klein predates Lafayette,
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decided in 1983, where the Supreme Court stated that Edwards
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did not answer the question of when a strip search was
appropriate. Lafayette, 462 U.S. at 646 n.2. Klein also
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predated Wolfish, with its explicit recognition of the
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invasiveness of strip and visual body cavity searches.
Wolfish, 441 U.S. at 558. Subsequent to Klein, and sensitive
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to the developing doctrine, this circuit has repeatedly
recognized that strip and/or visual body cavity searches are
not routine, and must be carefully evaluated. See Burns, 907
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F.2d at 236-37; Bonitz v. Fair, 804 F.2d 164, 170-72 (1st
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Cir. 1986); Blackburn v. Snow, 771 F.2d 556, 564 (1st Cir.
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1985); Arruda, 710 F.2d at 887. Accordingly, to the extent
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that Klein held that strip and visual body cavity searches
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are simply searches incident to arrest, and do not need to be
further tested for reasonableness under the Fourth Amendment,
it does not survive Lafayette, Wolfish, and this court's
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subsequent strip search decisions.
B. The Search of Swain
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Turning to the particular search at issue, we
conclude, taking all the facts in the light most favorable to
Swain, that a jury could find that the search was
unreasonable and thus violated the Fourth Amendment.
Accordingly, we find that Swain has stated a trialworthy
claim under 42 U.S.C. 1983. On these facts, there appears
to be the distinct possibility that Officer Hayes ordered the
strip search in retaliation for his failed interrogation of
Swain in her cell, imposing sexual humiliation on her as a
punishment for what he perceived as her non-cooperation.
Hayes' angry response to Swain's inability to provide
information about Milbury's activities and the timing of the
search raise this inference. This possibility distinguishes
this case from Klein, where the court found that there was
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"no evidence that the stripping was a pretext to humiliate or
degrade." Klein, 522 F.2d at 300.2 We must thus examine
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2. We also recognize that, under United States v. Whren, 116
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S. Ct. 1769 (1996), a police officer's subjective motivations
do not serve to invalidate a search for exclusionary rule
purposes, so long as the search was objectively reasonable
under the circumstances. Whren, however, also stressed that
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"the Constitution prohibits selective enforcement of the law
based on considerations such as race," id. at 1774, and, we
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whether, on these facts, an objective officer would have had
a reasonable suspicion that Swain was concealing drugs or
contraband on her person. Three factors suggest that there
were not adequate grounds to justify the strip and visual
body cavity search of Swain. First, there is the timing of
the search. Swain had been alone in the cell for some period
of time before she was searched and no one thought it
important to search her before she angered Hayes by not
giving him the information he sought. Perhaps more
importantly, she had been allowed to go to the bathroom by
herself, unobserved, prior to being taken to her cell. This
also indicates that no one thought she had secreted drugs in
her private parts. Cf. Burns, 907 F.2d at 238 (common
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knowledge that drug users and dealers with controlled
substances on their persons often attempt to flush drugs down
the toilet). If a warrantless strip search may be justified
by the need to avoid the destruction of concealed evidence,
Swain already had had ample opportunity to destroy any such
evidence. To the extent there was any reason to believe such
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would assume, gender. The exclusionary rule, as the Supreme
Court recognized in Malley v. Briggs, 475 U.S. 335, 344
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(1986), balances different interests than those in a 1983
action. ("While we believe the exclusionary rule serves a
necessary purpose, it obviously does so at a considerable
cost to the society as a whole, because it excludes evidence
probative of guilt. . . . On the other hand, a damages
remedy for [a Fourth Amendment violation] imposes a cost
directly on the officer responsible . . ., without the side
effect of hampering a criminal prosecution.").
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evidence still existed, further delay to obtain a warrant
would not have significantly increased the risk of
destruction. This was particularly true because Swain was
kept under observation and recorded by video camera while in
the holding cell.
Second, as noted, the most compelling justification
for warrantless strip and visual body cavity searches is
institutional security. It is uncontroverted that, prior to
her arraignment, Swain was the only person in the women's
holding cell of the North Reading Police Station. Her
arraignment was later the same afternoon, and she was then
released, on her own recognizance. There was no risk that
she would come into contact with other prisoners, or be able
to smuggle contraband or weapons into a secure environment.
Hayes stated that he believed that Swain, as a narcotics
suspect, might have been carrying a concealed weapon but he
did not assert that Swain posed a threat to his safety or
that of others in the police station. The institutional
security justification thus appears to be absent from this
case.
Third, there is the differential treatment by the
police of the young woman and her boyfriend. Swain and
Milbury were first pulled over because of Milbury's
shoplifting activities. Officer Hayes stated that, prior to
searching Swain, he had examined both Swain's and Milbury's
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records. Officer Hayes knew that Milbury was on probation and
had a history of drug convictions. By contrast, Swain did
not have a criminal record. Milbury had told officers,
including Hayes, that the marijuana was his. Yet Milbury was
not strip searched. If there was an objective basis -- apart
from retaliation -- for stripping Swain, it would have been
objectively reasonable, and more so, to search Milbury as
well.
On the other hand, Swain did drop a baggie of
marijuana at the scene of the crime. Officer Hayes expressed
the view (belied by his failure to strip search Milbury) that
a strip search was justified whenever narcotics are involved
in the case. This is not consistent with either the Town
policy, which requires probable cause, or the MPI policy,
which requires an individualized suspicion, even where the
crime involves contraband or weapons. The record does not
reveal how much marijuana was in the baggie Swain dropped,
nor does it reveal whether possession of that amount
constitutes a misdemeanor or a felony under Massachusetts
law. Nothing in the record suggests that Swain was suspected
of being a distributor of marijuana. The fact that Swain may
have possessed some unspecified amount of marijuana is not
enough to overcome, as a matter of law, the factors,
discussed above, under which a jury could find the search of
Swain unreasonable.
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Accordingly, we hold that a jury could lawfully
find that there was no objectively reasonable basis for strip
searching Swain and that, on these facts, Swain has stated a
claim for violation of her Fourth Amendment right to be free
from unreasonable searches that survives defendants' motion
for summary judgment.
C. Qualified Immunity
_____________________
Defendants assert that they are, in any event,
entitled to qualified immunity from suit. There are two
prongs to the qualified immunity analysis. First, was the
constitutional right in question clearly established at the
time of the alleged violation? St. Hilaire v. Laconia, 71
___________ _______
F.3d 20, 24 (1st Cir. 1995). That is a question of law for
the court. Elder v. Holloway, 510 U.S. 510, 516 (1994).
_____ ________
Second, would a reasonable, similarly situated official
understand that the challenged conduct violated that
established right? St. Hilaire, 71 F.3d at 24.
___________
The Fourth Amendment right to be free from
unreasonable strip searches has long been clearly established
in this circuit, as elsewhere. See Burns, 907 F.2d at 236;
___ _____
Blackburn, 771 F.2d at 569 ("It can hardly be debated that .
_________
. . in 1977, [there was] a 'clearly established' Fourth
Amendment right to be free of unreasonable searches."). As
discussed above, Klein's holding that such a search is a
_____
reasonable search incident to arrest had been abrogated by
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subsequent Supreme Court and First Circuit cases, and had
been squarely rejected by the other circuit courts to
consider the issue. See Fuller, 950 F.2d at 1446, 1449 n.11
___ ______
(holding that strip search with visual body cavity inspection
was not justifiable as a search incident to arrest but was
governed by higher standard, and rejecting Klein); Mary Beth
_____ _________
G., 723 F.2d at 1271 n.7 (searches like the one in Klein are
__ _____
only constitutional where there is a reasonable belief that
arrestee is concealing contraband; routine post-arrest strip
search of misdemeanants is unconstitutional); see also Weber,
___ ____ _____
804 F.2d at 801 nn. 6 & 7, 803 (holding that it was, in 1986,
"clearly established" that policy of routine strip and visual
body cavity searches of arrestees was unconstitutional, and
citing "ten opinions from seven circuits" that refused to
condone such searches). Defendants themselves agree that the
search must be evaluated under the reasonableness standard
articulated by the 1979 Supreme Court decision in Wolfish.
_______
The question is thus whether an objectively
reasonable officer would understand that a strip search of
Swain was, under these circumstances, unreasonable. This
prong of the inquiry, while requiring a legal determination,
is highly fact specific, and may not be resolved on a motion
for summary judgment when material facts are substantially in
dispute. 2 Nahmod, Civil Rights and Civil Liberties
____________________________________
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Litigation: The Law of Section 1983 8.08, at 136-39 (3d ed.
___________________________________
1991).
The ultimate question of whether a
reasonable police officer, on the basis
of information known to him, could have
believed his actions were in accord with
constitutional rights is a question of
law, subject to resolution by the judge
not the jury. But if there is a factual
dispute, that factual dispute must be
resolved by a fact finder.
St. Hilaire, 71 F.3d at 24 n.1 (internal citations omitted);
___________
Figueroa-Rodriguez v. Aquino, 863 F.2d 1037, 1041 (1st Cir.
__________________ ______
1988)("While the qualified immunity inquiry is ultimately a
question of law, it may also necessitate determining certain
of the essential facts.")(citing Anderson v. Creighton, 483
________ _________
U.S. 635 (1987)); see also Consolo v. George, 58 F.3d 791,
________ _______ ______
794 (1st Cir.) (where law is clearly established, and there
is ample evidence that officers acted unreasonably, proper to
submit issue of objective reasonableness to the jury on
special interrogatories), cert. denied, 116 S. Ct. 520
_____________
(1995).
We recognize that the immunity question should be
resolved, where possible, in advance of trial. See, e.g.,
___ ____
Veilleux v. Perschau, 101 F.3d 1, 2 (1st Cir. 1996).
________ ________
However, disposition of the question on summary judgment is
not always possible. Here, some material facts are
significantly in dispute. Swain's story and that of Officer
Hayes conflict on the timing of the relevant events. Some
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proffers are supported or contradicted by other witnesses,
including Spinney and Milbury. Hayes contends that, as the
officer in charge of the investigation, he ordered the search
immediately upon being informed that a narcotics violation
had occurred. The timing of when the search was ordered is
essential to a determination of whether defendants' conduct
was objectively reasonable. There are thus factual issues,
potentially turning on credibility, that must be resolved by
the trier of fact. Only after the resolution of these
conflicts may the trial court apply the relevant law on
objective reasonableness.3
We also recognize that police officers are
protected in close cases by the doctrine of qualified
immunity, and that immunity serves to protect law enforcement
from the chilling threat of liability. Vargas-Badillo v.
______________
Diaz-Torres, --- F.3d ----, 1997 WL 276662 (1st Cir. May 30,
___________
1997); Joyce v. Town of Tewksbury, 112 F.3d 19, 23 (1st Cir.
_____ _________________
1997) (patent violation of law necessary to strip police
officers of qualified immunity). On the other hand,
qualified immunity does not protect "those who knowingly
violate the law." Malley v. Briggs, 475 U.S. 335, 341
______ ______
____________________
3. In St. Hilaire, we noted that the proper division of
____________
functions between judge and jury on the objective
reasonableness inquiry may be accomplished either through
special interrogatories or through carefully structured jury
instructions. St. Hilaire, 71 F.3d at 24 n.1; see also
___________ ________
Nahmod, supra, 8.08, at 137. We leave that decision here
_____
to the trial court.
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26
(1986). Here, further resolution of the facts is necessary
to determine whether or not this case falls into the category
of "close cases" in which the police are accorded "a fairly
wide zone of protection." Roy v. Inhabitants of the City of
___ ___________________________
Lewiston, 42 F.3d 691, 695 (1st Cir. 1996). On the facts as
________
related by Swain, Officer Hayes used a warrantless strip
search and visual body cavity inspection as a tool to
humiliate and degrade her in retaliation for her refusal to
respond to interrogation.
Independently of the issue of allegations that
Officer Hayes deliberately violated the law in order to
retaliate, as forbidden by Malley, Swain also asserts the
______
search is not, on its facts, objectively reasonable. This
search, on Swain's allegations, occurred after she had ample
opportunity to dispose of any hidden evidence and when she
was alone in a monitored cell, posing no danger to others
that might justify hastily proceeding without a warrant.
Such allegations, if true, do not represent a "close case"
but a flagrant violation of the Fourth Amendment's guarantee
against unreasonable searches. Whether those allegations are
true or not must be resolved by the finder of fact.
D. Municipal Liability
______________________
Swain claims that the Town of North Reading is
liable for the injuries that she suffered. The Supreme Court
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has recently clarified the necessary showing for a claim of
municipal liability under 1983:
[I]n Monell and subsequent cases we have
______
required a plaintiff seeking to impose
liability on a municipality under 1983
to identify a municipal "policy" or
"custom" that caused the plaintiff's
injury.
. . . .
As our 1983 municipal liability
jurisprudence illustrates, however, it is
not enough for a 1983 plaintiff merely
to identify conduct properly attributable
to the municipality. The plaintiff must
also demonstrate that, through its
deliberate conduct, the municipality was
the "moving force" behind the injury
alleged. That is, a plaintiff must show
that the municipal action was taken with
the requisite degree of culpability and
must demonstrate a direct causal link
between the municipal action and the
deprivation of federal rights.
Board of the County Comm'rs v. Brown, 117 S. Ct. 1382, 1388
___________________________ _____
(1997) (discussing Monell v. New York City Dep't of Social
______ ______________________________
Servs., 436 U.S. 658 (1978), and progeny).
______
Here, Swain predicates municipal liability on a
failure to properly communicate to the police force a uniform
policy on when strip searches are appropriate and who may
authorize them. This failure to train, Swain alleges, rose
to the level of conscious indifference to the constitutional
rights of arrestees. Swain accurately notes that the various
police personnel, including the police chief, expressed some
confusion as to when strip searches are warranted.
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28
The Supreme Court addressed failure to train claims
in Brown:
_____
We concluded in Canton that an
______
"inadequate training" claim could be the
basis for 1983 liability in "limited
circumstances." We spoke, however, of a
deficient training "program," necessarily
intended to apply over time to multiple
employees. Existence of a "program"
makes proof of fault at least possible in
an inadequate training case. If a
program does not prevent constitutional
violations, municipal decisionmakers may
eventually be put on notice that a new
program is called for. Their continued
adherence to an approach that they know
or should know has failed to prevent
tortious conduct by employees may
establish the conscious disregard for the
consequences of their action -- the
"deliberate indifference"--necessary to
trigger municipal liability.
Id. at 1390 (discussing and citing Canton v. Harris, 489 U.S.
___ ______ ______
378 (1989)).
Swain does not, however, point to any other
incidents in which the North Reading police force violated
the rights of arrestees through strip and visual body cavity
searches. There was thus "no notice to the municipal
decisionmaker, based on previous violations of federally
protected rights, that his approach is inadequate." Id.
___
The Supreme Court has left open the possibility
that a failure-to-train claim can succeed without showing a
pattern of constitutional violations. "[I]n a narrow range
of circumstances, a violation of federal rights may be a
highly predictable consequence of a failure to equip law
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enforcement officers with specific tools to handle recurring
situations." Id. at 1391.
___
This is not that case. Officer Hayes and Chief
Purnell agreed that every officer was supplied with policy
guidelines, including periodic updates. Lieutenant Nolan's
memo requiring strip searches to be justified by probable
cause was such an update. The police officers also agreed
that the MPI, colloquially known as the "police manual," was
to be followed by, and was available to, the North Reading
force. Apparently, not all the officers had a consistent
understanding of those materials. However, it is undisputed
that North Reading did have an appropriate policy that was
distributed to the force; absent prior claims, it cannot be
reasonably inferred that Chief Purnell knew, or should have
known, that his officers were not executing that policy.
Accordingly, Swain cannot make the requisite showing of
"deliberate indifference" to her constitutional rights. We
affirm the grant of summary judgment as to the Town of North
Reading.
E. State Law Claim
__________________
The Massachusetts Declaration of Rights, article
14, gives every person the right to be free from
"unreasonable searches." The Massachusetts Civil Rights Act,
Mass. Gen. Laws ch. 12, 11H, 11I, provides a private right
of action for persons who are deprived of rights protected by
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30
either federal or state law. The district court concluded
that the protections of article 14 tracked the Fourth
Amendment protections of the federal Constitution, and that
the search of Swain was reasonable under both federal and
state law. We agree that cases like Rodriques v. Furtado,
_________ _______
575 N.E.2d 1124 (Mass. 1991), indicate that the state
constitution provides at least the level of protection
against strip and visual body cavity searches as does the
federal Constitution. However, in some instances, the
Supreme Judicial Court has concluded that "art[icle] 14
provides more substantive protection to criminal defendants
than does the Fourth Amendment." Commonwealth v. Upton, 476
____________ _____
N.E.2d 548, 556-57 (Mass. 1985) (rejecting federal standard
for determining probable cause based on confidential
informant tips); see also Commonwealth v. Blood, 507 N.E.2d
________ ____________ _____
1029 (1987). The Supreme Judicial Court has also noted that
the Massachusetts law on body cavity searches under article
14 remains uncharted territory. Rodriques, 575 N.E.2d at 884
_________
n.8. The SJC did remark, however, that the federal cases on
searches in prisons were not "germane" to a body cavity
search of a suspect for evidence "because of the 'diminished'
Fourth Amendment rights of prisoners and their visitors."
Id. (citations omitted). This remark certainly suggests the
___
possibility that Massachusetts law might place greater
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31
limitations on the use of strip and visual body cavity
searches of arrestees than the federal Constitution does.
We need not attempt to predict fully what course
Massachusetts law will take. The Massachusetts Constitution
certainly does not provide less protection than federal law.
____
Having found that the search of Swain may have been
objectively unreasonable under the federal Constitution, we
conclude that the law of the Commonwealth would at least view
the search similarly, and we therefore reinstate her state
law claim against the individual defendants.
Defendants contend that Swain cannot prove that her
injuries were perpetrated by "threats, intimidation, or
coercion" as required under Massachusetts law. See, e.g.,
___ ____
Planned Parenthood League v. Blake, 631 N.E.2d 985, 990
___________________________ _____
(Mass. 1994). The Supreme Judicial Court has accepted that a
"threat" may be defined as an "exertion of pressure to make
another fearful or apprehensive of injury or harm"; that
"intimidation" may be defined as "putting [a person] in fear
for the purpose of compelling or deterring conduct"; and that
"coercion" may be defined as the application of physical or
moral force so as to force someone to do something she would
otherwise not have done. Id. On the facts here, a jury
___
could find that Officer Hayes used the strip search to
humiliate or punish Swain and as a means of exerting moral or
psychological pressure designed to weaken her perceived
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32
resistance to her questioning. This could indeed constitute
"intimidation" or "coercion" within the meaning of the
statute.
The judgment of the court below is affirmed with
affirmed
________
respect to the Town of North Reading, and reversed with
reversed
________
respect to the individual defendants.
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