Filed: Oct. 08, 2008
Latest Update: Mar. 02, 2020
Summary: 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 , Cir
Summary: 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 , Circ..
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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
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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
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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).
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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.
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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.
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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).
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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
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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
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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.
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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
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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.
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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
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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.
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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).
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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.
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