HAAS v. BURLINGTON COUNTY
Filing
120
OPINION. Signed by Judge Noel L. Hillman on 6/30/2013. (KBF)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
TAMMY MARIE HAAS, individually
and on behalf of a class of
similarly situated
individuals,
Civil Nos. 08-1102, 10-009
(NLH/JS)
OPINION
Plaintiff,
v.
BURLINGTON COUNTY,
Defendant.
CONRAD SZCZPANIAK,
Plaintiff,
v.
BURLINGTON COUNTY, et al.,
Defendants.
APPEARANCES:
Carl D. Poplar, Esquire
1010 Kings Highway South
Building Two
Cherry Hill, New Jersey 08034
Seth R. Lesser, Esquire
Klafter Olsen & Lesser, LLP
2 International Place
Suite 350
Rye Brook, New York 10573
William A. Riback, Esquire
William Riback, LLC
132 Haddon Avenue
Haddonfield, New Jersey 08033
Attorneys for Plaintiffs Tammy Marie Haas and
Conrad Szczpaniak
Fran L. Rudich, Esquire
Klafter Olsen & Lesser LLP
1311 Mamaroneck Avenue
Suite 220
White Plains, New York 10605
Lauren Plevinsky, Esquire
William Riback, LLC
132 Haddon Ave
Haddonfield, New Jersey 08033
Attorneys for Plaintiff Conrad Szczpaniak
Betsy G. Ramos, Esquire
Michelle L. Corea, Esquire
Laura Danks, Esquire
Capehart & Scatchard, P.A.
Laurel Corporate Center
8000 Midlantic Drive - C.s. 5016
Suite 300
Mount Laurel, New Jersey 08054
Evan H.C. Crook, Esquire
Capehart & Scatchard, P.A.
142 West State Street
Trenton, New Jersey 18608
Attorneys for Defendant Burlington County and Ronald Cox
HILLMAN, District Judge
This matter comes before the Court by way of Defendants
Burlington County and Ronald Cox's appeal [Doc. No. 74] of the
November 13, 2012 Memorandum Opinion and Order issued by the
Honorable Joel Schneider, United States Magistrate Judge,
granting Plaintiffs' motion for leave to file an amended
complaint in this action.
The Court has considered the parties'
submissions and decides this matter pursuant to Federal Rule of
2
Civil Procedure 78.
For the reasons expressed below, Defendants appeal will be
denied and Judge Schneider's Memorandum Opinion and Order
granting Plaintiffs’ leave to file the amended complaint will be
affirmed in part and reversed in part.
I.
JURISDICTION
In this proposed class action suit, Plaintiffs assert claims
pursuant to 42 U.S.C. § 1983 for violations of their
constitutional rights.
Accordingly, the Court has jurisdiction
over Plaintiffs’ federal claims under 28 U.S.C. § 1331, and may
exercise supplemental jurisdiction over Plaintiffs’ state law
claims pursuant to 28 U.S.C. § 1367.
II.
BACKGROUND
As the Court writes primarily for the parties who are
familiar with the facts and procedural history of this case, the
Court sets forth herein only those facts necessary to put
Defendants’ current appeal in context.
In this proposed class
action, Plaintiffs allege their constitutional rights were
violated when they were strip searched at the Burlington County
Jail in approximately 2006 and 2008, respectively.
A similar
class action was filed in this District in July of 2005 by Albert
Florence, who also alleged a violation of his constitutional
3
rights based, in part, upon his post-arrest strip search at the
Burlington County Jail.
After the class was certified in Mr.
Florence’s July 2005 action by the Honorable Joseph H. Rodriguez,
Plaintiffs opted out of the class and instituted their own
individual actions.1
Plaintiffs’ respective actions were
administratively terminated without prejudice pending resolution
of Mr. Florence’s July 2005 action.
Judge Rodriguez granted summary judgment in favor of Mr.
Florence in February of 2009, but this decision was reversed by a
divided panel of the Third Circuit.
The Third Circuit’s decision
was affirmed by the Supreme Court in 2012.
See Florence v. Board
of Chosen Freeholders of County of Burlington, 132 S. Ct. 1510
(2012).
Subsequently, Plaintiffs respective cases were restored
to the Court’s active docket and consolidated.
Plaintiffs then
moved before Judge Schneider for leave to amend to avoid
dismissal under the Supreme Court’s holding in Florence.
Defendants opposed Plaintiffs’ motion on the basis that amendment
was futile in light of Florence.
By Memorandum Opinion and Order
of November 13, 2012, Judge Schneider granted Plaintiffs’ motion
to amend after conducting several oral arguments on the motion.
Defendants now appeal Judge Schneider’s ruling.
1
Plaintiff Haas filed her complaint in this Court in 2008,
while Plaintiff Szczpaniak filed his action in state court which
Defendants removed to federal court in early 2010.
4
III. DISCUSSION
A.
Standard of Review for Magistrate Appeals
Pursuant to 28 U.S.C. § 636(b)(1)(A), a United States
Magistrate Judge may “hear and determine any [non-dispositive]
pretrial matter pending before the court[.]”
636(b)(1)(A).
28 U.S.C. §
A district court judge will only reverse a
magistrate judge’s order on pretrial matters if it is “clearly
erroneous or contrary to law.”
28 U.S.C. § 636(b)(1)(A); see
also FED. R. CIV. P. 72(a) (recognizing that a district judge can
“modify or set aside any part of the [magistrate judge’s] order
that is clearly erroneous or is contrary to law.”); L. Civ. R.
72.1(c)(1)(A) (noting that the district judge “shall consider the
appeal ... and set aside any portion of the Magistrate Judge’s
order found to be clearly erroneous or contrary to law.”).
Under this standard, “‘[a] finding is clearly erroneous when
although there is evidence to support it, the reviewing court on
the entire evidence is left with the definite and firm conviction
that a mistake has been committed.’”
Wyeth v. Abbott Labs., 692
F. Supp. 2d 453, 455 (D.N.J. 2010) (citing Marks v. Struble, 347
F. Supp. 2d 136, 149 (D.N.J. 2004)).
“A district judge’s simple
disagreement with the magistrate judge’s findings is insufficient
to meet the clearly erroneous standard of review.”
Andrews v.
Goodyear Tire & Rubber Co., 191 F.R.D. 59, 68 (D.N.J. 2000).
Moreover, a ruling is “contrary to law if the magistrate judge
5
has misinterpreted or misapplied applicable law.”
Gunter v.
Ridgewood Energy Corp., 32 F. Supp. 2d 162, 164 (D.N.J. 1998).
The “burden is on the moving party to demonstrate that the
magistrate judge’s finding is clearly erroneous or contrary to
law.”
Exxon Corp. v. Halcon Shipping Co., 156 F.R.D. 589, 591
(D.N.J. 1994).
Here, Judge Schneider’s November 13, 2012 Memorandum Opinion
and Order pertains to a motion to amend – a non-dispositive
motion.
Therefore, the Court will examines this appeal under the
“clearly erroneous or contrary to law” standard.
See Exxon
Corp., 156 F.R.D. at 590 ("The adjudication by a magistrate of a
non-dispositive motion will be set aside only if the order is
found to be clearly erroneous of contrary to law.") (citing
Cipollone v. Liggett Group, Inc. 785 F.2d 1108, 1113 (3d Cir.
1986)).
B.
Amendment of Pleadings and Futility
In the November 13, 2012 Memorandum Opinion and Order
granting Plaintiffs' motion for leave to file an amended
complaint, Judge Schneider correctly identified and applied the
relevant Rules of Civil Procedure — Rule 12(b)(6) and Rule 15.
Rule 15 governs Plaintiffs’ motion to amend, while Rule 12(b)(6)
provides the standard to address Defendants’ opposition argument
that amendment is futile.
Generally, the Federal Rules of Civil Procedure encourage
6
and provide for a liberal policy with regard to the amendment of
pleadings.
Pursuant to Federal Rule of Civil Procedure 15(a)(2),
"a party may amend its pleading only with the opposing party's
written consent or the court's leave."
FED . R. CIV . P. 15(a)(2).
Rule 15(a)(2) further "requires that leave to amend the pleadings
be granted freely 'when justice so requires.'"
Long v. Wilson,
393 F.3d 390, 400 (3d Cir. 2004) (citing FED . R. CIV . P. 15(a))
("We have held that motions to amend pleadings should be
liberally granted.").
In Foman v. Davis, 371 U.S. 178, 182
(1962), the Supreme Court articulated the policy of "freely"
granting leave to amend.
See also Shane v. Fauver, 213 F.3d 113,
115 (3d Cir. 2000).
"[A]bsent undue or substantial prejudice, an amendment
should be allowed under Rule 15(a) unless denial [can] be
grounded in bad faith or dilatory motive, truly undue or
unexplained delay, repeated failure to cure deficiency by
amendments previously allowed or futility of amendment."
Long v.
Wilson, 393 F.3d 390, 400 (3d Cir. 2004) (internal quotations,
citations, and emphasis omitted); see also Haynes v. Moore, 405
F. App'x 562, 564 (3d Cir. 2011) (noting that even though leave
to amend under Rule 15 should be freely given, "a district court
may exercise its discretion and deny leave to amend on the basis
of undue delay, bad faith, dilatory motive, prejudice, or
futility.").
7
As noted supra, Defendants opposed Plaintiffs' motion for
leave to amend before Judge Schneider on the basis that amendment
would be futile in light of the Supreme Court's opinion in
Florence v. Board of Chosen Freeholders of County of Burlington,
132 S. Ct. 1510 (2012).
“The standard for assessing futility [of
amendment] is the 'same standard of legal sufficiency as applies
under [Federal] Rule [of Civil Procedure] 12(b)(6).'”
Great W.
Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 175 (3d
Cir. 2010) (citing Shane v. Fauver, 213 F.3d 113, 115 (3d. Cir.
2000)); see also Alvin v. Suzuki, 227 F.3d 107, 121 (3d Cir.
2000) (“An amendment is futile if the amended complaint would not
survive a motion to dismiss for failure to state a claim upon
which relief could be granted.”).
In considering Defendants' futility argument pursuant to the
Rule 12(b)(6) standard for a motion to dismiss, the court must
accept all well-pleaded allegations in the complaint as true and
view them in the light most favorable to Plaintiffs.
See
Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005).
It is well
settled that a pleading is sufficient if it contains “a short and
plain statement of the claim showing that the pleader is entitled
to relief.”
FED. R. CIV. P. 8(a)(2).
In weighing a motion to dismiss under Rule 12(b)(6), a court
asks “‘not whether a plaintiff will ultimately prevail but
whether the claimant is entitled to offer evidence to support the
8
claims[.]’”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 563 n.8
(2007) (quoting Scheuer v. Rhoades, 416 U.S. 232, 236 (1974));
see also Ashcroft v. Iqbal, 129 S. Ct. 1937, 1953 (2009) (“Our
decision in Twombly expounded the pleading standard for ‘all
civil actions[.]’”) (citation omitted).
First, under the
Twombly/Iqbal standard, the court “must accept all of the
complaint’s well-pleaded facts as true, but may disregard any
legal conclusions.”
Fowler v. UPMC Shadyside, 578 F.3d 203, 210-
11 (3d Cir. 2009) (citing Iqbal, 129 S. Ct. at 1949).
Second, the court “must then determine whether the facts
alleged in the complaint are sufficient to show that the
plaintiff has a ‘plausible claim for relief.’”
at 211 (citing Iqbal, 129 S. Ct. at 1950).
Fowler, 578 F.3d
“[A] complaint must
do more than allege the plaintiff’s entitlement to relief.”
Fowler, 578 F.3d at 211; see also Phillips v. County of
Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (“The Supreme Court’s
Twombly formulation of the pleading standard can be summed up
thus: ‘stating ... a claim requires a complaint with enough
factual matter (taken as true) to suggest’ the required element.
This ‘does not impose a probability requirement at the pleading
stage,’ but instead ‘simply calls for enough facts to raise a
reasonable expectation that discovery will reveal evidence of’
the necessary element.”) (citing Twombly, 550 U.S. at 556).
defendant bears the burden of showing that no claim has been
9
“The
presented.”
IV.
Hedges v. U.S., 404 F.3d 744, 750 (3d Cir. 2005).
ANALYSIS
A.
Judge Schneider’s Decision
In granting Plaintiffs' motion to amend, Judge Schneider
reviewed the Florence decision and concluded that while the
decision “left many questions unanswered, one thing [was] plain –
that [was], that a minimum of five Justices (Alito and the four
dissenters) did not endorse a blanket rule that all persons may
be strip searched after they are arrested.”
(Mem. Op. and Order
[Doc. No. 69] 6, Nov. 13, 2012) (emphasis in original).
Judge
Schneider further found that with the exception of Justice
Thomas, “the Supreme Court appears to be receptive to an
exception to a blanket strip search policy that applies to all
arrestees.”
Id.
Judge Schneider went on to observe that
notwithstanding the fact that such an exception “ha[d] not been
defined, at a minimum it appear[ed] to include a situation where
a person was arrested for a ‘minor’ offense, she/he was not
admitted to the general population, and there was no reasonable
suspicion she/he was carrying contraband.”
Id.
Judge Schneider then examined the allegations of Plaintiffs’
proposed amended complaint in light of his interpretation of the
Supreme Court’s holding in Florence – noting quite correctly that
the court “face[d] a difficult task.”
10
Id. at 9.
Accepting the
factual allegations of the proposed amended complaint as true and
given the uncertainty created by Florence decision, Judge
Schneider found that Plaintiffs pled “a plausible claim for
relief” because they alleged facts that “plausibly place[d] them
within the orbit of an exception to a blanket strip search policy
that the majority of the Supreme Court appears ready to accept.”
Id.
Judge Schneider took note of several pertinent facts
Plaintiffs alleged including that: (1) “both [P]laintiffs were
arrested for what appear[ed] to be a ‘minor’ offense[;]” (2)
“both were strip searched before they were seen by a judicial
officer[;]” and (3) “it was feasible for them to be segregated
from the general population.”2
Id.
Judge Schneider concluded
that Plaintiffs’ proposed amended complaint targeted the type3 of
“factual nuances the Supreme Court did not address [in Florence]
and the nuances District Court[s] must sort out.”
Id.
In granting Plaintiffs’ motion to amend, Judge Schneider
considered and rejected several arguments made by Defendants.4
Id. at 10.
With respect to Defendants’ contention that separate
2
Judge Schneider specifically noted that Haas alleged in
the proposed amended complaint that she did not enter the general
population. Id. at 9 (citing Proposed Amended Compl. ¶ 45).
3
In Florence, Chief Justice Roberts specifically observed
that “[f]actual nuances have not played a significant role as
[the] case has been presented to the Court.” 132 S. Ct. at 1523.
4
The Court notes that Defendants raised a number of the
same arguments on this appeal.
11
facilities do not exist to hold arrestees before they are seen by
a judicial officer, Judge Schneider accurately noted that this
argument raises a factual dispute that is not appropriate for
resolution under the Rule 12(b)(6) standard.
Id.
Additionally,
to the extent Defendants argued that Plaintiffs were strip
searched after a judge had already determined they should be
detained because an arrest warrant had already issued, Judge
Schneider rejected that argument and interpreted Florence as
referring to the “situation where a person is strip searched
before her/his post-arrest detention is reviewed by a judicial
officer.”
Id. at 10-11 (emphasis added).
Thus, because
Plaintiffs alleged that their post-arrest detention was not
reviewed by a judicial officer before they were strip searched,
Judge Schneider found Defendants’ argument unpersuasive.
11.
Id. at
Finally, Judge Schneider rejected outright Defendants’
contention that Plaintiffs presented the same factual
circumstances articulated in Florence.
B.
Id.
Basis for Defendants’ Appeal
Defendants now appeal Judge Schneider’s November 13, 2012
“Memorandum Opinion and Order on the basis that [Plaintiffs’]
proposed amended complaint is futile in light of Florence.”
(Mem. of Law in Supp. of Appeal of Magistrate’s Order Granting
Pls.’ Mot. for Leave to File and Serve the Proposed Am. Compl.
[Doc. No. 74-1] (hereinafter, “Defs.’ Mem.”), 2.)
12
Defendants
contend that Judge Schneider “misapplied and misinterpreted the
Supreme Court’s holding in Florence so as to grant” Plaintiffs’
motion to amend.
Id. at 3.
In so arguing, the Court construes
Defendants’ appeal to challenge Judge Schneider’s decision solely
on the basis that it was contrary to law.
See Gunter, 32 F.
Supp. 2d at 164 (observing that a ruling is “contrary to law if
the magistrate judge has misinterpreted or misapplied applicable
law.”).
Defendants assert that in order to grant Plaintiffs’ motion
to amend, Judge Schneider’s “analysis of the Florence decision
had to include a finding that there is an exception to a visual
search of inmates[.]”
Id. at 5.
Defendants argue, however, that
in finding such an exception existed, Judge Schneider reviewed
the Supreme Court’s “‘fractured’” ruling and based his conclusion
on the concurring opinion of Justice Alito which was improper
because “no concurring opinion is superior to the decision of the
court or any other concurrence[.]”
Id. at 5-6 (citing Rappa v.
New Castle County, 18 F.3d 1043, 1058 (3d Cir. 1994)).
Defendants specifically take issue with Judge Schneider’s
finding that a minimum of five justices did not endorse a blanket
rule that all persons may be strip searched after they are
arrested, arguing that this “does not equate to an exception to
the Florence holding.”
Id. at 7.
Moreover, Defendants contend
that Judge Schneider’s ruling does not create a limiting
13
exception to Florence, but actually results in a situation where
the issue of “whether a visual search is deemed reasonable could
still be subject to a fact specific analysis, provided the
detention was not reviewed by a judicial officer and the
individual could be held in available facilities apart from the
general population of the correctional facility.”
C.
Id.
Defendants’ Failure to Meet their Burden on Appeal
While all parties here agree that the Supreme Court’s
opinion in Florence controls, they strongly disagree as to the
breadth of the Supreme Court’s holding.
(See Defs.’ Mem. 3.)
Defendants specifically contend on appeal that Judge Schneider
misapplied or misinterpreted the Florence decision in granting
Plaintiffs’ motion to amend.
(Id.)
Thus, the cornerstone of
this appeal is Judge Schneider’s finding that the Florence
decision essentially left open the possibility of an exception
for strips searches that are conducted on “minor offenders” who
are not housed in the general population and whose detention has
not yet been reviewed by a judge.
The success of Defendants’ appeal essentially rises and
falls on this issue because Defendants do not otherwise challenge
Judge Schneider’s conclusions that the facts alleged in
Plaintiffs’ amended complaint, when excepted as true, fall within
14
the ambit of the exception Judge Schneider found exists.5
Upon
consideration of this appeal, the Court finds that Defendants
have only partially met their burden to demonstrate that Judge
Schneider’s Memorandum Opinion and Order granting leave to amend
misapplied or misinterpreted the Florence decision and thus was
contrary to law.
This Court agrees with Judge Schneider that the
Supreme Court’s opinion in Florence leaves open the possibility
of a narrow exception restricting the ability of corrections
officials to strip search certain arrestees.
And this Court also
agrees that these plaintiffs have pled sufficient facts to state
a plausible claim within that exception.
Although Defendants broadly characterize the Florence
decision as defining the group of person subject to a visual
5
Several of Defendants’ arguments on appeal attempt to
raise factual disputes with respect to the accuracy of the
allegations pled in the amended complaint and refer the Court to
correctional facility records for support. (See Defs.’ Mem. 811.) Defendants’ raised virtually identical arguments before
Judge Schneider.
It is unnecessary for the Court address each of these
argument in detail here, except reiterate, as Judge Schneider
previously found, that resolution of these factual disputes is
not proper under the Rule 12(b)(6) standard implicated by
Defendants’ futility argument and are more appropriately raised
on summary judgment. See, e.g., United States v. Albinson, No.
09-1791, 2010 WL 3258266, at *17 (D.N.J. Aug. 16, 2010) (noting
that if defendant “wishes to dispute the Amended Complaint's
factual contentions a motion to dismiss is not the proper
vehicle” and such challenges should be raised in the context of a
motion for summary judgment); Strzakowlski v. General Motors
Corp., 04-4740, 2005 WL 2001912, at *6 (D.N.J. Aug. 16, 2005)
(noting that defendant’s argument “speaks to a factual issue” and
“[a]s such, it cannot be resolved on the pleadings during a
motion to dismiss for failure to state a claim.”)
15
search as all “‘arrested persons’ and ‘every detainee[,]” (see
Defs.’ Mem. 3), Defendants rely on a selective reading of the
Supreme Court’s opinion, and emphasize these terms out of
context.
From the outset, thought, the Supreme Court fashioned
its opinion in Florence to avoid resolving the broad issue of
whether all persons may be strip searched after they are
arrested.
For example, from its beginning paragraphs, the
Florence opinion classifies the specific issue before the Supreme
Court as follows: “in broad terms, th[is] controversy concerns
whether every detainee who will be admitted to the general
population may be required to undergo a close visual inspection
while undressed.”
132 S. Ct. at 1513 (emphasis added).
The
Supreme Court went on to note that it granted certiorari to
address the “differing conclusions” reached by the Federal Courts
of Appeals “as to whether the Fourth Amendment requires
correctional officials to exempt some detainees who will be
admitted to a jail’s general population from the searches here at
issue.”
Id. at 1515 (emphasis added).
In two more instances in the Florence opinion, the Supreme
Court again recognized the specific context of the strip search
issue before it: (1) “The case proceeds on the understanding that
the officers searched detainees prior to their admission to the
general population[;]” see id. (emphasis added); and (2)
corrections officials “offer significant reasons why the
16
Constitution must not prevent them from conducting the same
search on any suspected offender who will be admitted to the
general population in their facilities.”
added).
Id. at 1522 (emphasis
These reiterations provide context regarding the strip
searches the Supreme Court examined and implicitly make clear
that the Florence opinion did not resolve the broader issue of
whether all arrestees may be strip searched.
Rather, Florence
limited its own reach by repeatedly framing the question with
respect to arrestees who will be admitted to the general
population.
See id. at 1513, 1515, 1522.
This alone demonstrate
that the Florence holding is not as all encompassing as
Defendants contend.
Defendants further argue that in circumstances where the
Supreme Court issues a “fractured” ruling which does not enjoy
the endorsement of a majority of Justices, such as in Florence,
the Court must employ an analysis under Marks v. United States,
430 U.S. 188 (1977) and Jackson v. Danberg, 594 F.3d 210 (3d Cir.
2010) to determine the Supreme Court’s holding.
(Defs.’ Mem. 6.)
Defendants point out that under Marks, “the holding of the Court
may be viewed as that position taken by those Members who
concurred in the judgments on the narrowest grounds[.]”
at 193; (see Defs.’ Mem. 6.).
430 U.S.
Defendants thus argue that Justice
Alito’s concurring opinion in Florence cannot be considered as
superior to the decision of the Supreme Court as a whole or as to
17
any other concurrence.
(Defs.’ Mem. 6.)
Despite Defendants’ argument that Judge Schneider gave too
much weight to Justice Alito’s concurrence and that his
concurrence does not constitute part of the majority opinion
under Marks and Jackson, Defendants’ argument is unavailing.
As
another court in this District recently concluded “the majority
opinion became the majority opinion when Justice Alito joined it
expressly because a potential exception was identified[.]”
Allen
v. Union County, et al., 2:08-cv-00711-KSH-CLW, Op. [Doc. No. 96]
8, Feb. 26, 2013.
A close read of Justice Alito’s concurrence
appears to demonstrate that had such an exception or limitation
not been identified, Justice Alito would not have joined in the
opinion leading to a dramatically different result in Florence.6
Thus, as Allen points out, Justice Alito’s concurrence identifies
a limitation and a potential exception to the Florence holding
without which Justice Alito would not have joined the opinion of
6
Justice Alito’s concurrence begins as follows: “I join the
opinion of the Court but emphasize the limits of today’s holding.
The Court holds that jail administrators may require all
arrestees who are committed to the general population of a jail
to undergo visual strip searches not involving physical contact
by corrections officers.” Florence, 132 S. Ct. at 1524 (emphasis
in original).
His concurrence concludes by expressly stating that the
“Court does not address whether it is always reasonable, without
regard to the offense or the reason for detention, to strip
search an arrestee before the arrestee’s detention has been
reviewed by a judicial officer. The lead opinion explicitly
reserves judgment on that question. In light of that limitation,
I join the opinion of the Court in full.” Id. at 1525 (emphasis
added).
18
the majority.
Therefore, Justice Alito’s concurrence may be
viewed as the narrowest grounds upon which the majority opinion
is founded.
Additionally, Part IV of the Florence opinion, which was
joined by four Justices,7 expressly recognizes that “[t]his 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 population and
without substantial contact with other detainees.”
Id. at 1522.
Part IV goes on to further acknowledge that “[t]he circumstances
before the Court, however, do not present the opportunity to
consider a narrow exception of the sort Justice Alito describes,
..., which might restrict whether an arrestee whose detention has
not yet been reviewed by a magistrate or other judicial officer
and who can be held in available facilities removed from the
general population, may be subjected to the types of searches at
issue here.”
Id. at 1523.
Similarly, the four dissenting Justices8 explicitly agreed
with Justice Alito that “this case does not address, and
‘reserves judgment on,’ whether it is always reasonable ‘to strip
search an arrestee before the arrestee's detention has been
reviewed by a judicial officer.’”
Id. at 1531-32.
The four
7
Chief Justice Roberts and Justices Kennedy, Scalia, and
Alito joined in Part IV of the Florence opinion.
8
Justices Breyer, Ginsburg, Sotomayor, and Kagan dissented.
19
dissenting Justices further explained that “[i]n an appropriate
case, therefore, it remains open for the Court to consider
whether it would be reasonable to admit an arrestee for a minor
offense to the general jail population, and to subject her to the
‘humiliation of a strip search,’ prior to any review by a
judicial officer.”
Id. at 1532.
It thus appears to the Court
here that eight of the nine Justices in Florence recognized the
limited and particularized nature of that ruling and did not
endorse an across-the-board rule that it is constitutional to
strip search all persons after they are arrested.9
Several other federal courts have similarly interpreted
Florence as embracing an exception – albeit one whose precise
contours are undefined at this point in time.
See, e.g., Allen,
Op. [Doc. No. 96] at 8-10 (D.N.J. Feb. 26, 2013) (granting
plaintiff’s motion to amend in light of Florence, concluding that
Florence does “not endorse a blanket rule that all persons may be
strip searched after they are arrested” and finding that
“plaintiff’s allegation is articulated to fall within the ambit
9
In a non-precedential opinion, the Third Circuit recently
described the Supreme Court’s holding in Florence as follows:
“Florence held that it is constitutional to conduct a full strip
search of an individual detained in the general population of a
jail, regardless of the reason for detention or the existence of
reasonable suspicion that the individual is concealing
something.” Small v. Wetzel, No. 12-3228, 2013 WL 2479599, at *3
(3d Cir. June 11, 2013). The Third Circuit’s recent description
of Florence lends further support to the Court’s conclusion that
the Supreme Court did not endorse a blanket rule regarding the
constitutionality of strip searches of all arrestees.
20
of an exception to the blanket strip search policy that the
Supreme Court identified” in Florence); Ellsworth v. Wachtel, No.
1:11-CV-0381, 2013 WL 140342, at *5 (N.D.N.Y. Jan. 11, 2013)
(observing that “[t]he Majority in Florence (along with both
Concurrences and the Dissent) emphasized that this was a narrow
holding and that the rule announced therein might not apply to
arrestees who were not going to be introduced to the general jail
or prison population” and finding Florence did not govern the
strip search at issue because the plaintiff was not searched
prior to her introduction into a general jail population, thus
bringing the search with the exception); Banaei v. City of
Evanston, No. 10 C 6966, 2012 WL 4892414, at *4 (N.D. Ill. Oct.
11, 2012) (noting in dicta that Florence did “not decide the
question of whether an arrestee who has not first been before a
judge or magistrate and who is not being placed with other
inmates may be strip searched as a matter of routine practice.”);
Cf. Flonder v. Sheriff of Kankakee County, No. 12-2115, 2012 WL
4321714, at *6 (C.D. Ill. Aug. 31, 2012) (recognizing that the
“Supreme Court expressly reserved the issue of whether its
holding in Florence may be applied in circumstances” where
plaintiff was “detained after a warrantless arrest, and had not
had an initial appearance prior to being strip searched.”)
Where this Court parts company with Judge Schneider is the
potential scope of the exception articulated by Justice Alito.
21
The plaintiff in Florence was arrested pursuant to a warrant.
While the majority opinion doesn't expressly rely on that fact in
reaching its decision it is an undisputed fact in the case.
In Part IV of Justice Kennedy's decision, joined by Justices
Alito and Scalia, and the Chief Justice, he leaves to another day
whether an exception might exist for "an arrestee whose detention
has not yet been reviewed by a magistrate or other judicial
officer ...".
This phrase follows a citation to, and very brief
discussion of, the Supreme Court’s decision in Atwater v. City of
Lago Vista, 532 U.S. 318 (2001).
Atwater was, of course, a case which expanded police powers
to make warrantless arrests.
This Court views Part IV of Justice
Kennedy’s opinion as an acknowledgment of the general concern,
expressly noted by the dissent, that the broader the powers of
warrantless arrests for minor offenses the greater the scrutiny
that Court may apply in the future to pre-trial detention
standards. See generally, Catherine T. Struve, The Conditions of
Pretrial Detention, 161 U. PENN. L. REV. 1009, 1052-53 (noting
interplay between broad warrantless arrest powers and the
standards of pretrial detention)(citing Julian Simcock, Note,
Florence, Atwater, and the Erosion of Fourth Amendment
Protections for Arrestees, 65 STAN. L. REV. 599, 621 (2013)).
Arguably, such concerns do not exist when the arrest is made
pursuant to a judicially authorized warrant.
22
It could be fairly
said that such a person is “an arrestee whose detention has []...
been reviewed by a magistrate or other judicial officer ..."
Although ex parte and the determination made before and not after
an arrest, an arrest warrant represents a judicial determination
of probable cause to arrest.
Moreover, it is the very nature of
an arrest warrant to command that the named party be detained.
That is precisely what an “arrest” is.
This view comports with
the concurrence of the Chief Justice who expressly noted
"Florence was detained not for a minor traffic offense but
instead pursuant to a warrant for his arrest." Florence, 132
S.Ct. at 1523 (Roberts, C.J., concurring).
The problem, of course, stems from Justice Alito's
concurrence.
Unlike the Chief Justice, Justice Alito does not
expressly address the issue of a warrant.
He simply and
ambiguously (intentionally or not) refers to "an arrestee whose
detention has not been reviewed by a judicial officer."
1524.
Id. at
If he intended to refer to a warrantless arrest, then the
exception he describes in Florence would presumably be limited to
such situations.
If, on the other hand, he meant the post-arrest
review by a judge in the context of an initial appearance or
similar hearing even when the arrest was made pursuant to a valid
warrant, then he, most certainly joined by the four dissenters,
has carved out a broader exception to Florence that a simple
reference to Atwater would suggest.
23
Judge Schneider, in his
well-reasoned and thorough analysis of Florence, clearly believed
Justice Alito intended the latter.
We are not so sure.
There are several reasons why we take this view.
First, the
contrary view reads the word “continuing” into Justice Alito’s
concurrence and we assume that if he had meant that he would have
simply said it.10
The concept of “continuing” in the context of
an arrest, seizure, or detention exists in the evolving
jurisprudence in this area.
1019-20.
See Struve, 161 U. PENN. L. REV. at
Second, like Chief Justice Roberts does in his
concurrence, Justice Alito cites to the precise page numbers of
Justice Kennedy's discussion of Atwater.
Third, if Justice Alito
intended to convey a broader exception it is not clear why he
would not have joined the dissent.
Mr. Florence was arrested in
essence for failure to appear at a hearing to enforce a fine and
as soon as he appeared before a judge it was determined that he
had previously paid the fine and the warrant was stale.
It is
hard to imagine a better set of circumstances in which to adopt a
rule that a person arrested pursuant to a warrant for a minor
offense must first appear before a judge to review their
“continued” post-arrest detention before they can be strip
searched.
Yet Justice Alito does not articulate such a rule and
by his concurrence provides no such relief to Mr. Florence who
10
We recognize that he could also have used the phrase
“warrantless arrest” and did not.
24
would have clearly benefitted if such a rule had existed before
his detention.
Fourth, a rule that directs a jailer to put aside
the existence of a warrant and to grade offenses based on some
vague notion of “minor” as opposed to “not minor” invites the
kind of uncertainty and presents the kinds of security concerns
which motivated the Court’s holding in Florence in the first
place.
For better of worse, and this Court is bound to follow
it, the Florence decision on whole, of which Justice Alito was a
concurring part, clearly set a bright line rule easily
enforceable and uniformly applied.
The existence of a warrant
would only serve as a corollary to that certainty and uniformity.
In sum, we are not convinced that Justice Alito would treat
warrantless arrests and arrests pursuant to warrant the same and
even less so that in the latter circumstance he would require
both a belt and suspenders.
All this having been said, we need not address this issue
with any finality as this stage of the proceedings.
We recognize
that reading the tea leaves of concurrences and plurality
decisions is more art than science and one of the dangerous arts
to boot.
Whatever the contours and meaning of Justice Alito’s
concurrence may be, both of these Plaintiff’s contend that they
either were held, or could have been held, outside the general
population.
That fact alone, if proven, would place them within
an exception to Florence.
If, and only if, that fact is
25
established need we address the issue of whether the presence of
the warrants in this case is a dispositive fact.
Accordingly, the Court finds that Defendants have failed to
demonstrate that Judge Schneider erred in granting Plaintiffs’
motion for leave to amend.
With the exception of this Court’s
reservation on the issue discussed above, Judge Schneider’s
decision is generally consistent with Florence and the subsequent
opinions of other federal courts, and properly recognized that
Plaintiffs’ factual assertions, taken as true, state a plausible
claim for relief within the ambit of the exception carved out by
the Supreme Court in Florence.
Therefore, to the extent Judge
Schneider’s November 13, 2012 Memorandum Opinion and Order allows
the claims in this case to be amended it will be affirmed.
V.
CONCLUSION
For the reasons expressed above, Defendants’ appeal of Judge
Schneider’s November 13, 2012 Memorandum Opinion and Order is
denied, and Judge Schneider’s ruling granting Plaintiffs’ motion
to amend is affirmed in part and reversed in part.
An Order
consistent with this Opinion will be entered.
Dated: June 30, 2013
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
26
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