O'Day, et al v. Nassau County, et al

Filing 440

ORDER granting in part and denying in part 428 Motion to Dismiss; granting in part and denying in part 428 Motion for Reconsideration ; granting in part and denying in part 428 Motion to Vacate. Defendants' motion to vacate the portion of the January 16, 2007 Order granting summary judgment to plaintiffs as to liability is granted as to the federally-based constitutional claim, and plaintiffs' FIRST CLAIM FOR RELIEF, brought pursuant to 42 U.S.C. §1983, is dismissed with prejudice. However, plaintiffs' state-based constitutional claim, i.e. their SECOND CLAIM FOR RELIEF, brought pursuant to New York State Constitution Art. 1, § 12, is unaffected by Florence; accordingly, defendants' application to vacate the portion of previously identified summary judgment order with respect thereto and to dismiss the underlying cause of action, is denied. Ordered by Judge Denis R. Hurley on 7/18/2013. (Kaley, Regina)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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In re NASSAU COUNTY
STRIP SEARCH CASES
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APPEARANCES:
For Plaintiffs:
Herbst Law PLLC
420 Lexington Avenue, Suite 300
New York, New York 10170
By:
Robert L. Herbst, Esq.
Giskan Solotaroff Anderson & Stewart LLP
11 Broadway, Suite 2150
New York, New York 10004
By:
Iliana Konidaris, Esq.
Beldock Levine & Hoffman LLP
99 Park Avenue, Suite 160
New York, New York 10016
By:
Jonathan Moore, Esq.
Emery Celli Brinckerhoff & Abady LLP
75 Rockefeller Plaza, 20th Floor
New York, New York 10019
By:
Matthew D. Brinckerhoff, Esq.
Wolf Haldenstein Adler Freeman & Herz, LLP
270 Madison Avenue
New York, New York 10016
By:
Jeffrey G. Smith, Esq.
For Defendants:
John Ciampoli
Nassau County Attorney
One West Street
Mineola, New York 11501
By:
Dennis J. Saffron, Esq.

HURLEY, Senior District Judge:

MEMORANDUM & ORDER
99-CV-2844 (DRH)
99-CV-3126 (DRH)
99-CV-4238 (DRH)

Presently before the Court is defendants’ motion requesting that the Court “reconsider
and vacate the portion of the Court’s [January 16, 2007] order granting plaintiffs summary
judgment on liability, and to instead dismiss these consolidated actions, based on the intervening
change in controlling law brought about by the recent decision of the United States Supreme
Court in Florence v. Board of Chosen Freeholders, 132 S. Ct. 1510 (2012).” (Defs.’ Mem. in
Supp. at 1.) Plaintiffs have opposed defendants’ application. For the reasons set forth below,
defendants’ motion is granted in part and denied in part.
BACKGROUND
The background of this action is set forth in the prior decisions of this Court, familiarity
with which is presumed. The Court will partially reiterate an abbreviated history in order to
provide context for the Court’s analysis and rulings, infra.
Class Certification
In 1999, a district court within this District found that the blanket policy of the Nassau
County Correctional Center (“NCCC”) of strip searching newly admitted individuals arrested for
misdemeanors or non-criminal offenses in Nassau County violated the Fourth Amendment. See
Shain v. Ellison, 53 F. Supp. 2d 564 (E.D.N.Y. 1999), aff’d, 273 F.3d 56 (2d Cir. 2001). These
consolidated actions were commenced shortly after the District Court’s decision in Shain in
1999, and sought damages plaintiffs suffered as a result of the NCCC’s blanket strip search
policy. Extensive pretrial motion practice ensued, including plaintiffs’ numerous attempts to
achieve class certification pursuant to Federal Rule of Civil Procedure (“Rule”) 23.
In January 2003, in the midst of the class certification motion practice, plaintiffs moved
for class certification as to liability only. In response thereto, defendants conceded their liability.

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As the Second Circuit later summarized, “defendants conceded ‘the one common issue’ that in
their view ‘might be appropriate for class certification . . . namely, whether the NCCC’s strip
search policy during the class period was constitutional.’ [ ] Specifically, defendants recognized
that they ‘are bound by Shain under the doctrine of collateral estoppel.’” In re Nassau County
Strip Search Cases, 461 F.3d 219, 224 (2d Cir. 2006).
Based on defendants’ concession, this Court deleted liability from the certification
analysis and denied class treatment. On appeal, the Second Circuit reversed and directed this
Court “to certify a class on the issue of liability . . . [and] consider anew whether to certify a
class as to damages as well.” Id. at 231. In accordance with this direction, “and in light of
defendants’ concession of liability to all class members,” the Court certified a class as to liability
and entered “summary judgment on liability for all strip searches upon admission to the
[NCCC].”1 (Jan. 16, 2007 Order at 2.)
The Supreme Court’s Subsequent Decision in Florence
In 2012, the Supreme Court confronted “the question of what rules, or limitations, the
Constitution imposes on searches of arrested persons who are to be held in jail while their cases

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Subsequently, plaintiffs moved to extend class certification to include damages. By
Memorandum & Order dated March 27, 2008, the Court found that the issue of general damages
due to the asserted injury to human dignity predominated, and concluded that there was “no
reason [to believe] that a jury . . . could not determine an amount of general damages awardable
to each member of the class.” (Mar. 27, 2008 Order at 7-12.) The parties waived the right to a
jury trial and submitted the issue of a general damages determination to the Court. After an
eleven-day bench trial, the Court awarded general damages in the amount of $500 per strip
search. (Sept. 22, 2010 Order at 65-66.) By Memorandum & Order dated October 19, 2011, the
Court held that it would not extend class certification to permit plaintiffs to pursue a class-wide
award for “garden-variety” emotional distress damages, and concluded that emotional distress
damages beyond those which are inseparable from the injury to human dignity may be awarded
only on an individual, case-by-case basis. (Oct. 19, 2011 Order at 13-20, 38.)
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are being processed.” Florence v. Bd. of Chosen Freeholders of the Cnty. of Burlington, 132
S.Ct. 1510, 1513 (2012). “[I]n broad terms, the controversy [before the Court] concern[ed]
whether every detainee who will be admitted to the general population may be required to
undergo a close visual inspection while undressed.” Id.
At issue before the Court in Florence were the “search process[es]” experienced by the
petitioner at two separate jails. Id. at 1514. In the Burlington County Detention Center, the
petitioner was required to shower with a delousing agent and then submit to a corrections
officer’s close visual inspection, during which the petitioner was instructed “to open his mouth,
lift his tongue, hold out his arms, turn around, and lift his genitals.” Id. The petitioner “shared a
cell with at least one other person and interacted with other inmates following his admission to
the jail.” Id. Six days later, the petitioner was transferred to Essex County Correctional Facility,
which was the “largest county jail in New Jersey” and “admit[ted] more than 25,000 inmates
each year.” Id. Upon his arrival, the petitioner was required to pass through a metal detector
and then wait “in a group holding cell for a more thorough search.”2 Id. Once that search was
completed, the petitioner submitted to a “mandatory shower, during which his clothes were
inspected,” and was “admitted to the facility.” Id.
The petitioner brought suit seeking relief pursuant to Section 1983 for violations of his
Fourth and Fourteenth Amendment rights. The Florence case “proceed[ed] on the understanding
that the officers [at each facility] searched detainees prior to their admission to the general

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The petitioner and other detainees were instructed to remove their clothing while a
corrections officer “looked at their ears, nose, mouth, hair, scalp, fingers, hands, arms, armpits,
and other body openings.” Florence, 132 S.Ct. at 1514. The petitioner alleged that “he was
required to lift his genitals, turn around, and cough in a squatting position as part of the process.”
Id.
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population.” Id. at 1515.
As part of its analysis, the Court stated that “[t]he admission of inmates creates numerous
risks for facility staff, for the existing detainee population, and for a new detainee himself or
herself,” and that “[t]here is a substantial interest in preventing any new inmate, either of his own
will or as a result of coercion, from putting all who live or work at these institutions at even
greater risk when he is admitted to the general population.” Id. at 1518, 1520. Overall, the
Court concluded that “the search procedures at the Burlington County Detention Center and the
Essex County Correctional Facility struck a reasonable balance between inmate privacy and the
needs of the institutions,” and did not violate the petitioner’s Fourth or Fourteenth Amendment
rights. Id. at 1523.
The Present Motion to Vacate Defendants’ Concession of Liability in Light of Florence
Defendants assert that pursuant to Rule 54(b), “every order short of a final decree is
subject to reopening at the discretion of the district judge.” (Defs.’ Mem. in Supp. at 1 (quoting
Moses H. Cone Memorial Hosp. v. Mercury Const. Corp., 460 U.S. 1, 12 & n.14, 103 S. Ct. 927,
74 L. Ed. 765 (1983)).) Defendants assert that the Supreme Court’s decision in Florence
represents an intervening change of controlling law that should lead the Court “to vacate [its]
prior order granting summary judgment for plaintiffs on the issue of liability and to instead enter
summary judgment for defendants dismissing the case.” (Id. at 2.)
In opposition, plaintiffs argue (1) that Florence does not constitute an intervening change
of controlling law “because [it] does not apply to the plaintiff class here” (Pls.’ Opp’n at 2), (2)
that “defendants should not be relieved of their unlimited and unreserved liability concession
nine years ago, [which was] made to gain strategic advantage in the litigation” (id.), and (3) that

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“Florence does not constitute an intervening change in controlling state law, and [, accordingly,]
defendants' liability concession and judgment on the independent New York State constitutional
claims should not be disturbed.” (Pls.' Opp'n at 17 (the first letter of each word in the quoted
excerpt from plaintiffs' brief, unlike the foregoing quote, is capitalized).)
DISCUSSION
I.

Legal Standard
Defendants frame their application as a request made pursuant to Rule 54(b), which

provides, in relevant part: “[A]ny order or other decision, however designated, that adjudicates
fewer than all the claims or the rights and liabilities of fewer than all parties does not end the
action as to any of the claims or parties and may be revised at any time before the entry of a
judgment adjudicating all the claims and all the parties’ rights and liabilities.” Fed. R. Civ. Pr.
54(b). As the Second Circuit has made clear, however, “[e]ven if Rule 54(b) allows parties to
request district courts to revisit earlier rulings, the moving party must do so within the strictures
of the law of the case doctrine.” Virgin Atl. Airways, Ltd. v. Nat’l Mediation Bd., 956 F.2d 1245,
1255 (2d Cir. 1992).
“Under the law of the case doctrine, a decision on an issue made at one stage of a case
becomes binding precedent to be followed in subsequent stages of the same litigation.” In re
PCH Assocs., 949 F.2d 585, 592 (2d Cir. 1991). This doctrine “is admittedly discretionary and
does not limit a court’s power to reconsider its own decisions prior to final judgment.” Virgin
Atl. Airways, Ltd., 956 F.2d at 1255. However, the Second Circuit has “repeatedly stated [that it]
will not depart from the law of the case absent cogent or compelling reasons.” Pescatore v. Pan
Am. World Airways, Inc., 97 F.3d 1, 8 (2d Cir. 1996) (internal quotation marks and alteration

6

omitted). “The major grounds justifying reconsideration are an intervening change of
controlling law, the availability of new evidence, or the need to correct a clear error or prevent
manifest injustice.” Virgin Atl. Airways, Ltd., 956 F.2d at 1255 (internal quotation marks
omitted). As noted above, Defendants urge the Court to grant reconsideration of its January 16,
2007 Order granting Plaintiffs summary judgment as to liability because Florence constitutes an
intervening change of controlling law.
The Second Circuit has made clear that “if, before a case in a district court has proceeded
to final judgment, a decision of the Supreme Court demonstrates that a ruling on which the
judgment would depend was in error, no principle of the law of the case would warrant a failure
on our part to correct the ruling.” Fogel v. Chestnutt, 668 F.2d 100, 109 (2d Cir. 1981) (quoting
Zdanok v. Glidden Co., 327 F.2d 944, 951 (2d Cir. 1964) (internal quotation marks omitted)). “It
is not enough,” however, that the party moving for reconsideration “could now make a more
persuasive argument” based on the newly-decided Supreme Court case. See id. Rather, “[t]he
law of the case will be disregarded only when the court has ‘a clear conviction of error’ with
respect to a point of law on which its previous decision was predicated.” Id. (quoting Zdanok,
327 F.2d at 953). “[M]ere doubt . . . is not enough to open [a] point for full reconsideration.” Id.
(internal quotation marks omitted).
II.

The Impact of Defendants’ Concession of Liability
In defining the rationale behind the law of the case doctrine, the Second Circuit has noted

that “where litigants have once battled for the court’s decision, they should neither be required,
nor without good reason permitted, to battle for it again.” Virgin Atl. Airways, Ltd., 956 F.2d at
1255. Here, plaintiffs argue, defendants “did not ‘battle for this court’s decision’ nine years ago;

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instead, they conceded liability ‘for all purposes.’” (Pls.’ Opp’n at 21.) Plaintiffs assert that
there is no case law or other legal authority that would support granting defendants’ request that
the Court “relieve [them] of their concession, and of the liability judgment to which they agreed,
know[ingly], voluntarily, unreservedly, and for strategic advantage, in a money damages case.”
(Id.)
Defendants counter that plaintiffs have offered no legal support for their argument that
“had [defendants] continued to contest liability after Shain, and thus had summary judgment
imposed upon us in a litigated order, we would now be relieved of that liability under Florence,
but because we responsibly and necessarily conceded the issue under Shain we are forever bound
by, and [are] subject to damages under, that now discredited case.” (Defs.’ Mem. in Supp. at 1213.)
Although case law addressing this particular issue is admittedly sparse, there does appear
to be some legal support for the proposition that defendants’ concession of liability does not, in
and of itself, prevent this Court from reviewing its summary judgment ruling, which has
admittedly become the law of the case. The Ninth Circuit’s decision in United States v. Miller,
822 F.2d 828 (9th Cir. 1987) (“Miller II”), is instructive on this issue. In that case, the defendant
had been convicted of possession of cocaine in violation of 21 U.S.C. § 841(a)(1). At issue was
the legality of searches of his luggage in two separate airports: DEA agents had conducted a
warrantless search of his luggage in Atlanta, and then – based in part on evidence garnered from
that warrantless search – a warrant was obtained to search other pieces of his luggage in San
Francisco. Early on in the case, the government conceded “that the legality of the warrantless
search in Atlanta was conclusive as to the legality of the later search with a warrant in San

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Francisco.” Id. at 829. The district court refused to suppress the evidence uncovered in San
Francisco, but the Ninth Circuit reversed, relying on the government’s concession when it
concluded:
As a result of the unlawful search [in Atlanta], DEA agents obtained
tangible evidence that was used as the basis for Miller’s arrest and for
a warrant to search his other luggage [in San Francisco]. . . . The
evidence obtained was thus probative of the crime for which Miller
was charged. . . . The fruits of the illegal search must therefore be
suppressed.
Id. (citing United States v. Miller, 769 F.2d 554, 560 (9th Cir. 1985) (“Miller I”)). This
statement and the Circuit’s mandate became law of the case. See id. The case was then
remanded to the district court.
On remand, the government sought to vacate its concession and the district court
permitted it to do so “on the ground that United States v. Leon had been decided [by the Supreme
Court] on July 5, 1984, making a change in the law governing searches based on warrants
obtained in good faith.” Id. at 829 (citation omitted). The district court concluded that the
evidence found as a result of the San Francisco search should not be suppressed.
On appeal, the Ninth Circuit determined that “the information actually used to get the
warrant in San Francisco was independent of [the illegal Atlanta search and, therefore,] [t]here is
no reason to suppress the evidence secured on the basis of the [San Francisco] warrant.” Id. at
831. The Circuit continued, however: “But are we precluded from reaching this result by the
concession that the government first made that the legality of the warrantless search in Atlanta
was conclusive as to the legality of [the] San Francisco search?” Id. That concession, moreover,
“was built upon by [the Circuit] in its first treatment of this case,” when it ruled in Miller I that
“[a]s a result of the unlawful search [in Atlanta], DEA agents obtained tangible evidence that
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was used as the basis for . . . a warrant to search his other luggage [in San Francisco].” Id. at
832. That statement, as noted above, “constituted the law of the case.” Id. Nevertheless, the
Circuit answered its own query in the negative by concluding that it was not bound by the law of
the case.
The Ninth Circuit noted that “[t]he difference between the law of the case and res
judicata is that ‘one directs discretion, the other supersedes it and compels judgment.’” Id. at 832
(quoting Southern Ry. Co. v. Clift, 260 U.S. 316, 319, 43 S. Ct. 126. 67 L. Ed. 283 (1922)).
According to the Circuit, the question of whether to reconsider the law of the case in order to
prevent a “manifest injustice” was “a matter of discretion.” Id. Overall, the Circuit found that
law of the case doctrine “should not be applied woodenly in a way inconsistent with substantial
justice.” Id. The Circuit concluded that “[t]he concession made by the government, [and] by the
issuance of the mandate in Miller I, became the law of the case, but the procedural posture of this
case affords us the opportunity to correct the substantial injustice that would be done were we to
bind the government to its concession.” Id. at 833. After considering the record, the Circuit
decided that it “should not reverse the defendant’s conviction because the government made a
mistake in its presentation of a legal argument.” Id.
The Eighth Circuit’s decision in Morris v. American National Can Corporation, 988 F.2d
50 (8th Cir. 1993), is also relevant here. In that case, a plaintiff who had prevailed on her Title
VII claim appealed the district court’s refusal to enhance her attorneys’ fee award “based on the
contingency fee arrangement she had with her attorney, and the associated risk that her attorney
would receive no compensation.” Id. at 51. In defending against the plaintiff’s appeal, the
defendant argued that the lower court had properly applied the prevailing law at the time, i.e.,

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Justice O’Connor’s concurring opinion in Pennsylvania v. Delaware Valley Citizens’ Council for
Clean Air, 483 U.S. 711, 107 S. Ct. 3078, 97 L. Ed. 2d 585 (1987) (“Delaware Valley II”). Id.
The defendant did not, however, assert any argument that Title VII’s attorneys’ fee provision
precluded enhancements based on the risks associated with a contingency fee arrangement. Id.
Because defendant effectively waived that argument, the Circuit declined to address the issue.
Id.
The Eighth Circuit held “based on prior precedent in this circuit, that Justice O’Connor’s
opinion was the ‘current legal standard for awarding contingency enhancements.’” Id. at 52
(internal quotation marks omitted). The Circuit reversed the district court, however, and
remanded the issue for further proceedings. Morris v. Am. Nat’l Can Corp., 952 F.2d 200, 207
(8th Cir. 1991) (“Morris II”). After conducting those proceedings, the district court enhanced
the plaintiff’s attorneys’ fee award by 50% to reflect the contingency fee arrangement. Id.
Nineteen days later, however, the Supreme Court issued its decision in City of Burlington v.
Dague, 505 U.S. 557, 112 S. Ct. 2638, 120 L. Ed. 2d 449 (1992), which held that enhancements
for contingency fees were not permitted under certain fee-shifting statutes. Subsequently, the
defendant appealed the district court’s recent award of enhanced attorneys’ fees, arguing that
such enhancements were prohibited by the Supreme Court’s intervening decision in Dague.
The plaintiff argued that the defendant should not be able to benefit from the intervening
Dague decision because it had waived the argument upon which the Dague decision was based.
As such, the plaintiff continued, the traditional exception to the law of the case doctrine, which
permits a court to depart from the law of the case in the face of “an intervening decision from a
superior tribunal [that] clearly demonstrates the law of the case is wrong,” would be

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inapplicable. See Morris, 988 F.2d at 52. The Circuit disagreed, however, concluding that the
defendant’s waiver was “meaningful only if there is a difference between a law of the case based
on a waiver and a law of the case based on briefing and argument.” Id. After noting that neither
party had articulated any reasons for such a distinction, the Circuit stated that “no court has ever
applied the exceptions to the law of the case doctrine differently when the law was based on a
waived issue as opposed to an issue formally presented to the court.” Id. Thus, the Circuit
concluded, “the law of the case as a result of waiver is no different than a matter that becomes
the law of the case as a result of argument.” Id. The Circuit “appl[ied] the traditional exceptions
to the law of the case doctrine,” and “[i]n light of the intervening decision in Dague, [ ]
reverse[d] the enhancement of attorney fees.” Id. at 53.
Here, after defendants conceded liability, the Court’s January 16, 2007 Order – which
granted summary judgment on liability against defendants based on that concession – became the
law of the case. After reviewing the case law described in detail above, the Court concludes that
defendants’ concession of liability does not, in and of itself, divest this Court of its discretion to
reconsider its January 16, 2007 Order. Although defendants may not have “battle[d] for this
court’s decision” before conceding liability (see Pls.’ Opp’n at 21), plaintiffs have failed to cite
to any case law standing for the proposition that the law of the case resulting from defendants’
concession is any different from law of the case resulting from a “battle.”3 Indeed, as the Eighth

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Plaintiffs’ citation to Benjamin v. Jacobson, 172 F.3d 144 (2d Cir. 1999) is
inapposite. In that case, the Second Circuit dealt with the effect that the enactment of the Prison
Litigation Reform Act of 1995 (“PLRA”) had on earlier consent decrees entered into to resolve
class actions brought by pretrial detainees against the City of New York. The Circuit described
the applicable legal framework as follows: “Under the separation of powers, Congress lacks the
authority to alter a finally rendered judgment ordering the payment of money. On the other
hand, to the extent that a court’s final judgment consists of an injunction, Congress may require
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Circuit’s decision in Morris suggests by way of analogy, there is no meaningful distinction
between the two. See Morris, 988 F.2d at 52 (“[T]he law of the case as a result of waiver is no
different than a matter that becomes the law of the case as a result of argument.”).
Thus, the Court turns to the question of whether the Supreme Court’s decision in
Florence constitutes an intervening change in controlling law that justifies this Court’s
reconsideration of its January 16, 2007 Order.
III.

Defendants Have Demonstrated That Florence Constitutes an Intervening Change in
Controlling Law
As noted above, the Second Circuit has recognized three circumstances under which a

court can justifiably exercise its discretion to depart from the law of the case: (1) “an intervening
change of controlling law,” (2) “the availability of new evidence,” or (3) “the need to correct a
clear error or prevent manifest injustice.” Virgin Atl. Airways, 956 F.2d at 1255 (internal
quotation marks omitted). Defendants assert that the Supreme Court’s decision in Florence
constitutes an intervening change of controlling law. (Defs.’ Mem. in Supp. at 2.)
Justice Kennedy, writing for the majority in Florence, described the issue before the
Court “in broad terms . . . whether every detainee who will be admitted to the general population
may be required to undergo a close visual inspection while undressed” as part of the correctional
facility's intake process. Florence 132 S.Ct. at 1513. It was the “search process at each jail [i.e.

alteration or termination of its future effect if the law on which the injunction was predicated has
been changed.” Benjamin, 172 F.3d at 161. Plaintiffs argue that, pursuant to this distinction
articulated in Benjamin, that “judgments in actions at law for damages[ ] are inherently final.”
(Pls.’ Opp’n at 22.) Of course, there has been no “finally rendered judgment ordering the
payment of money” in this case, see Benjamin, 172 F.3d at 161, nor is there any statutory or
Congressional action involved. The cases cited by plaintiffs involving settlement agreements
(see Pls.’ Opp’n at 22-23) are similarly inapplicable.
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the Burlington County Detention Center and the Essex County Correctional Facility] that [gave]
rise to the claims before the Court.” Id. at 1514.
The central issue for present purposes is whether the Supreme Court's repeated use of the
term “general population” renders Florence inapplicable to the plaintiff class in that the new
admittees to the NCCC were initially housed for a period of 72 hours, albeit as a group, apart
from other inmates for health assessment purposes. It was prior to or at the beginning of that
process that the class members were strip searched.
(a)

Positions of the Parties

Plaintiffs contend that Florence is irrelevant to the plaintiff class here, all of whom were
strip searched upon admissions and deliberately isolated from the general inmate population for
72 hours. (Pl.’s Opp’n. at 8.) Plaintiffs further posit that “[i]t is therefore clear that Justice
Alito was noting that Florence had no application to the case at bar where every one of the
17,000 class members were misdemeanor, petty offense or civil contempt arrestees housed in
separate facilities and not admitted to the general inmate population for 72 hours.” Id. at 9.
Defendants' view as to the significance of the term general population as used in
Florence differs markedly from plaintiffs' view. Defendants maintain that “Florence makes
clear that whether a detainee is in the 'general population' is not dependent upon the particular
usage of that term at a particular facility, but rather means having contact with other inmates as
opposed to being held in isolation.” (Defs.' Mem. in Supp. at 5.)
(b)

Breadth of Holding in Florence

Florence's sanctioning of intake strip searches of individuals arrested for minor offenses,
absent reasonable suspicion that the arrestees possess contraband, is, by its very nature, broad

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based. Indeed, its holding – prescinding for the moment from the issue as to the meaning of the
term “general population” as used in Florence – calls into question the continued viability of
the class certified here as to liability, to wit: “all persons arrested for misdemeanors or noncriminal offenses in Nassau County who thereafter were strip searched at the Nassau County
Correctional Center pursuant to defendants' blanket policy, practice and custom which required
that all arrestees be strip-searched upon admission to the facility, from May 10, 1996 until and
including June 1, 1999.” (See Court's Mem. & Order filed on Jan. 16, 2007 at 2.) And Florence,
again subject to the caveat concerning the meaning of general population, largely eviscerated the
holding by the district court in Shain, 53 F. Supp. 2d 564, i.e. the decision upon which the
present class action is seemingly predicated.
Although the holding in Florence is far-reaching, it falls short of being all encompassing.
As Chief Justice Roberts explained in his concurring opinion: “The Court makes a persuasive
case for the general applicability of the rule it announces. The Court is nonetheless wise to leave
open the possibility of exceptions, to ensure that we not embarrass the future.” Florence, 132
S.Ct. at 1523 (internal quotation marks omitted).
Justice Alito in his concurrence similarly counsels against applying the Court's holding
indiscriminately noting “that the Court does not hold that it is always reasonable to conduct a
full strip search of an arrestee whose detention has not been reviewed by a judicial officer and
who could be held in available facilities apart from the general population.” Id. at 1524.
Moreover, in Part IV of Florence, four of the five justices in the majority (viz. Chief Justice
Roberts and Justices Alito, Kennedy and Scalia), explained 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,

15

a detainee will be held without assignment to the general jail population and without substantial
contact with other detainees. This describes the circumstances in Atwater [v. City of Lago Vista
et al, 532 U.S. 318, 121 S. Ct. 1536, 149 L. Ed. 2d 549 (2001)].” Id. at 1522-23.
In Atwater, a motorist brought a Section 1983 claim against the City, its police chief and
the arresting officer, contending that her Fourth Amendment right to be free from unreasonable
seizure was violated when she was arrested, handcuffed, and detained in jail for one hour for
failing to wear her seatbelt and failing to fasten her children in seatbelts. 532 U.S. at 324. Her
claim was rejected at the district and circuit levels and, ultimately, by the Supreme Court. The
Court, in Atwater, held that a warrantless arrest for a minor criminal offense, such as a
misdemeanor seatbelt violation punishable only by a fine, is not violative of the Fourth
Amendment. Id. at 355. The case's significance for present purposes is its being cited in
Florence as an example of an arrested individual held “without assignment to the general jail
population,” Florence, 132 S.Ct. at 1522; Ms. Atwater's contact with the jail consisted of having
her mug shot taken, being “placed . . . alone, in a jail cell for about one hour,” and then
appearing before a magistrate and released on bond. Id. at 1523.
In sum, Florence's holding is of sufficient breadth to undermine both the common
questions of law and of fact upon which the present federal class certification is based if, as
defendants contend, the class members entered into the NCCC's “general population” consistent
with the Supreme Court's usage of that term.
(c)

Meaning of the Term General Population

Absent from Florence is a definition of the term general population, thus precluding a
simple answer to this pivotal question. As a result, reference to the context in which the term is

16

used by the Supreme Court is necessary to determine its meaning. To begin that analysis, an
overview of the intake procedure at the NCCC during the class period is needed.
(i)

Declarations of Michael Golio

Defendants maintain that newly admitted detainees had sufficient contact with other
inmates and facility staff to fall within the ambit of Florence, relying primarily on the
Declaration of Michael Golio dated June 25, 2012 (the “Golio Declaration”) as well as his Reply
Declaration of Sept. 19, 2012 (the “Golio Reply Declaration”). Golio is an investigator Captain
assigned to the Legal Unit of the Nassau County Sheriff's Department, which, in turn, operates
the NCCC. In his declaration, Golio describes the current processing procedures for new
detainees, and outlines the contacts that new admittees have with each other and NCCC staff.
Based on his over 25 years of broad-based experience at the NCCC, Golio explains that the
“procedures for new detainees now are substantially identical to those [in place] during the class
period involved in the litigation.” (Golio Decl. ¶ 5.)
As Golio describes it, the contacts that newly admitted detainees have amongst
themselves and with other inmates and staff “begins immediately upon [the detainees'] arrival at
the jail, when detainees are kept in holding pens with up to twenty other new admittees while
awaiting processing.”4 (Defs.' Mem. in Supp. at 7; see also Golio Decl. ¶¶ 6, 7). As they are
processed, the detainees move from “station to station in the Operations Unit area unescorted
and encounter other inmates, both new admits and others, throughout this movement.” (Defs.'

4

Parenthetically, during the general damages trial held during November and December
2009, class member Kevin Murray testified for plaintiffs that following his arrest on “March 27,
1997,” he was placed in a “holding cell at NCCC” with “six to eight” other people. (See Nov.
30, 2009 Trial Transcript (“Tr.”) at 171.)
17

Mem. in Supp. at 7; see also Golio Decl. ¶¶ 7, 8.) At both the clothing room and medical area
stations, the detainees are placed in holding pens with up to twenty other new admittees. (Defs.'
Mem. in Supp. at 7; see also Golio Decl. ¶¶ 9, 10.) After their medical evaluation, the detainees
“travel unescorted through a corridor to the new admission housing area located in another
building, typically encountering other inmates during this movement.” (Defs.' Mem. in Supp. at
7-8; see also Golio Decl. ¶ 11.)
New admission housing is a floor of the NCCC comprised of four tiers with twenty cells
per tier. (Defs.' Mem. in Supp. at 8.) Detainees must stay in new admission housing for at least
72 hours (during which time the NCCC obtains medical clearances and reviews inmate history
information) and/or until cleared by a NCCC's medical services provider. (Golio Decl. ¶ 12)
“Generally, inmates [in new admission housing] are only secured in their [individual] cells
during the daytime at facility population count times, shift change, and during inmate meal
distribution and clean-up procedures.” (Id. ¶ 15.) During the remainder of the day, inmates “are
permitted to congregate in the common area with other inmates housed on their tier [to] watch
the tier television” and engage in other permitted activities. (Id. ¶ 14.)5

5

Class members Michael Fanning and Mary Beth Paden submitted declarations in
opposition to the relief sought by defendants in which each estimated the time new admittees
were free to leave their cells [and, thus, free to intermingle with other new admittees] was
limited to one hour daily, rather than the more extensive periods recited in the Golio Declaration.
(See Sept. 28, 2012 Decl. of Fanning at ¶ 3 and Sept. 29, 2012 Decl. of Paden at ¶ 5.) Two other
class members, viz. Heidi Kane and Gregg Wills, filed declarations stating that their respective
experiences upon entry to the NCCC were essentially devoid of contact with other inmates. (See
Sept. 29, 2012 Decls. of Kane and Wills; see generally, the Sept. 29, 2012 Reply Decl. of Golio
¶¶ 9 and 10, detailing, inter alia, how the experiences recited by the four class member
declarants are not representative of the approximately 17,000 class members, and is also at odds
with the then operative “official Policies & Procedures of the Sheriff's Department” which
mandated that “inmates housed in 'New Admit' housing areas are to be afforded six hours of time
out of their cells in their assigned housing area each day consistent with facility safety and
18

(ii)

Plaintiffs' Opposition to Defendants' Reliance Upon, and the
Court's Consideration of the Golio Declaration

Plaintiffs, in their opposition papers, attack Golio's Declaration dated June 25, 2012 on
multiple fronts, including its use by defendants in endeavoring to undo their concession of
liability and as to its relevance. As to the first argument, plaintiffs label the information
provided by Golio as not “newly discovered” and, thus, an improper vehicle for reconsideration.
(Pls.' Opp'n at 12-13.) That argument is unavailing, however, given that the relevance of the
subject information did not materialize until Florence was decided.
In questioning the Declaration's relevance, plaintiffs posit that it is “cast in language
which purports to describe the present day rather than the class period many years ago.” (Id. at
n.1.) That deficiency – assuming its existence — has been remedied via the submission of
Golio's Reply Declaration filed on September 29, 2012. The explanations provided therein,
based on his extensive experience at the NCCC before, during, and after the class period, easily
satisfy relevancy requirements and, accordingly, the information in his Declarations will be
considered by the Court in deciding defendants' motion.
(iii)

Plaintiffs' Argument is Based on an Overly Restrictive
Interpretation of Florence

Plaintiffs essentially maintain that since NCCC draws a distinction between new
admittees on the one hand, and inmates in what it calls its “general population” on the other, and

security concerns,” citing Nassau County Sheriff's Department Policies & Procedures No. CD08-01-02, eff. June 14, 1994 (attached as Ex. A), § X(B) at 6.)
Incidently both Fanning and Wills, after being strip searched sometime prior to, or during
the first 72 hours of confinement, were placed in NCCC's general population, unlike Kane and
Paden who were not.
19

given that the Supreme Court couched its holding in terms of certain detainees being strip
searched prior to being admitted to a facility's “general population,” it necessarily follows that
Florence is irrelevant, i.e. “does not apply to this case and does not support, let alone require,
vacating the liability judgment on, and dismissing, the federal claims.” (Pls.' Opp'n at 3.) That
argument is well articulated, straightforward, and certainly has considerable surface appeal. Yet,
upon closer scrutiny, its flaws become manifest. To begin, it is out-of-sync, and irreconcilable
with the rationale driving the decision in Florence, viz. the need to promote safety and security
within the institution. Beyond that, the contention that Florence is not germane to defendants'
motion fails to take into account that this is a class action and, as such, its very existence requires
the presence, inter alia, of “questions of law or fact common to the class,” Fed. R. of Civ. P.
23(a)(2), and a finding by the Court that such questions “predominate over any questions
affecting only individual members.” Id. at (b)(3).
These two problems with plaintiffs' argument will be discussed in turn.
A.

Equating the Supreme Court's Use of the Term “General
Population” with NCCC's is Problematic

NCCC draws a distinction between new detainees segregated for the first 72 hours for
health evaluation purposes (albeit as a group, or in groups), and those inmates who have already
gone through that process. If that distinction is meaningful for Florence purposes as plaintiffs
insist, it would mean that new admittees, arrested on minor matters, could not be strip searched
upon their arrival at the NCCC absent reasonable suspicion to believe they harbored contraband.
However, evidence proffered by both plaintiffs and defendants demonstrates that new admittees
had, at a minimum, at least some non-incidental interaction with other inmates and staff during

20

that initial period.6 Under the circumstances, the proffered artificial line of demarcation urged
by plaintiffs is inconsistent with safety concerns so clearly articulated in Florence. See, e.g.,
Florence, 132 S.Ct. 1518-19 (“Jails and prisons . . . face grave threats posed by the increasing
number of gang members who go through the intake process. . . . Fights among feuding gangs
can be deadly, and the officers who must maintain order are put in harm's way. . . . These
considerations provide a reasonable basis to justify a visual inspection for certain tattoos and
other signs of gang affiliation as part of the intake process. The identification and isolation of
gang members before they are admitted protects everyone in the facility.”); id. at 1520
(“Concealing contraband often takes little time and effort. It might be done as an officer
approaches a suspect's car or during a brief commotion in a group holding cell. Something small
might be tucked or taped under an armpit, behind an ear, between the buttocks, in the instep of a
foot, or inside the mouth or some other body cavity”); id. (“The record provides evidence that
the seriousness of an offense is a poor predictor of who has contraband. . . . People detained for
minor offenses can turn out to be the most devious and dangerous criminals”); id. at 1521 (“It
also may be difficult, as a practical matter, to classify inmates by their current and prior offenses
before the intake search. Jails can be even more dangerous than prisons because officials there

6

As plaintiffs, in endeavoring to downplay the significance of the Golio Declaration,
state: “[T]he Golio Declaration does not really contravene the essential thrust of the Donahue,
Gregg and Fanning Declarations and the testimony of Sheriff Jablonsky and Lt. Considine. The
fact that new admits are held in temporary cells for a short time upon entering the facility, and
that when escorted to their own cells in the separate new admit housing facility, they may
congregate in a common area for some period of time . . . does not [, Plaintiffs' argument
continues,] amount to substantial contact, and hardly constitutes the sustained, prolonged and
often unrestricted intermingled contact in general population to which Florence's holding is
cabined.” (Pls.' Opp'n at 14 (emphasis added).) As stated in the text, the Court disagrees with
the final conclusion drawn by Plaintiffs.
21

know so little about the people they admit at the outset. . . . An arrestee may be carrying a false
ID or lie about his identify. The officers who conduct an initial search often do not have access
to criminal history records.”).
In sum, the Court finds plaintiffs' interpretation of Florence to be overly restrictive.
Segments of the NCCC inmate population, as well as staff, were exposed to the same type of
security, health and safety risks from new admittees before the health assessment process was
completed as afterwards. Accordingly, plaintiffs' efforts to establish a bright line separating the
pre and post assessment periods is unavailing. If new admittees were typically isolated during
the initial period, like Ms. Atwater in Atwater, 532 U.S. 318, the situation would be otherwise.
But, as just noted, there is no material issue as to the pivotal fact that non-de minimis interaction
between and among new admittees and others was commonplace at NCCC during the class
period. Whether the new admittees were, for example, free to intermingle outside their cells
during the first 72 hours for only 1 hour daily as class members Fanning and Paden testified (see
n.5, supra), or 6 hours daily as Golio averred and as the then applicable Sheriff's Department
Policies mandated (see page 18 and n.5, both supra), is a matter of degree, not substance. Under
either scenarios, the type of perilous contacts underscored in Florence were present.
B.

Plaintiffs' Position That Florence is not an Intervening
Change in the Law Fails to Recognize its Effect on the Presently
Certified Class Action as to Liability

Juxtaposing of the class, as certified, with the holding in Florence indicates their
incompatibility. Indeed Florence removes the core of the class, i.e. persons who were strip
searched absent reasonable suspicion upon their admission to the NCCC following their arrests
for misdemeanors or lesser offenses.

22

To the extent plaintiffs, as well as defendants, make reference to Parts III and IV of the
majority opinion and to Justice Alito's concurrence, the shared import of those portions of
Florence is that some individuals, depending on the circumstance,7 might have viable Fourth
Amendment claims to the effect that they should not have been placed in the general population
and thus in a position to interact with other inmates and staff, but rather should have been
isolated thereby eliminating the need for strip searches to be conducted. That issue was left
undecided by the Supreme Court. Florence, 132 S.Ct. at 1522-23 (“This case does not require
the Court to rule on the type of searches that would be reasonable in instances where, for
example, a detainee will be held without assignment to the general jail population and without
substantial contact with other detainees. This describes the circumstances in Atwater.”) But
more importantly for present purposes, that issue is not articulated in plaintiffs' amended class
action complaint as one of the grievances asserted against defendants. Instead, the complaint
speaks solely of “[d]efendants' policy, practice and custom of conducting strip/body cavity
searches absent reasonable suspicion, . . . on a class of persons arrested for or charged with nonfelony offenses who are admitted to the Nassau County Correctional Center in East Meadow (the
'County Jail').” (Am. Class Action Compl. filed in Gardy Augustin v. Jablonsky, 99 Civ 3126, ¶
2.) Simply put, the present action is not framed to address the Ms. Atwater type of hypothetical
claims. But, if contrary to the fact, it was, such class members would be merely a subset of the
approximately 17,000 class members. And therein is the problem. Florence, as noted, destroyed
the commonality as to both law and fact which linked the class members together consistent with

7

One such circumstances presumably would entail the space and staff available in the
facility at the time of the arrestee's admission.
23

Second Circuit law prior to the Supreme Court's decision. Maintenance of a class action – or, in
this case, continuation of such an action – requires, inter alia, that there be at least one question
of law or of fact common to all class members, see D'Alauro v. G.S. Services Ltd. Partnership,
168 F.R.D. 451, 455-56 (E.D.N.Y. 1996), and that “the questions of law or fact common to class
members predominate over any questions affecting only individual members, and that a class
action is superior to other available methods for fairly and efficiently adjudicating the
controversy.” Fed. R. Civ. P. 23(b)(3). Given that Florence has, in essence, discredited the
rationale embodied in such cases as Shain v. Ellison, 53 F. Supp. 2d 564, and, in the process,
sanctioned the type of searches complained about in the instant amended class action complaint,
plaintiffs are, at a minimum, no longer able to satisfy the predominance standard found in Rul
23(b)(3).
IV.

Defendants' Interpretation of Florence is Sound
Defendants maintain, correctly in my view, that the NCCC's usage of the term general

population does not determine the applicability of Florence. Instead, it is the contact between
new admittees with other inmates and staff at the NCCC that is controlling. As a result, and for
the reasons already provided, I find that Florence constitutes an intervening change in the law,
notwithstanding plaintiffs' well articulated, but unpersuasive protestations to the contrary.
The legitimacy of defendants' position is further reinforced by reference to the
circumstances surrounding Florence being strip searched at the Burlington County Jail. The
Supreme Court explains that Florence “shared a cell with at least one other person and interacted
with other inmates following his admission to jail.” Florence, 132 S.Ct. at 1514. Later, the
Court addressed his undergoing the same type of procedure at the Essex County Correctional

24

Facility. However, it seems clear that “the search process at each jail” was considered
separately. Florence, 132 S.Ct. at 1514.8
The purpose of citing Florence's experience at Burlington is that his interaction with
other inmates there was essentially the same as what occurred with respect to many, if not most
members of the present class. And, of course, Florence's search at Burlington passed
constitutional muster.
V.

Florence Does Not Constitute an Intervening Change in Controlling New York State
Law and, Accordingly, Defendants' Concession of Liability on the Independent New
York State Constitutional Claims are Unaffected
In plaintiffs' amended complaint, both federal and state claims are asserted. As to the
latter, plaintiffs allege that their strip searches at NCCC violated Article I, Section 12 of the New
York State Constitution.9 In their November 4, 2003 concession letter, defendants conceded

liability “for all purposes in this action against all remaining defendants.” (Case No. 99 CV
3126, Docket No. 43). As a result, summary judgment as to liability was entered against
defendants on behalf of the “class and every member thereof.” (Case No. 99 CV 2849, Docket
No. 122).
Although Florence does constitute an intervening change in the law with respect to
plaintiffs' federal claim and, as a result, warrants vacatur of the County's concession of liability

8

Were the situation otherwise, perhaps it could be argued that the search at Burlington
was somehow legitimized as a precondition to his admission to the Essex County Correctional
Facility.
9

Article I, Section 12 of the New York State Constitution provides in pertinent part:
“The right of the people to be secure in their persons, houses, papers and effects, against
unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon
probable cause, supported by oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.”
25

as to that claim, the same may not be said with respect to the state-based constitutional cause of
action.
Counsel have not provided, nor am I personally aware of any New York case pertaining
to strip searches conduced in a correctional facility challenged under Article 1, Section 12 or
other provision of State law. However, I have been provided with state decisions involving strip
searches done by police officers. Those decisions demonstrate that, at least in that type of
situation, New York State Courts require reasonable suspicion as a precondition to strip
searching an arrestee charged with a misdemeanor or lesser offense under Article I, Section 12 of
the New York State Constitution. See People v. Motherwell, 926 N.E.2d 1219 (2010) and cases
cited therein.
How New York courts will decide a case factually analogous to the one at bar under
Article I, Section 12 remains to be seen. That they might not adopt the Florence rationale is
certainly well within the realm of possibility. The New York Court of Appeals has noted that:
[w]e have on many occasions interpreted are own Constitution to
provide greater protection when circumstances warrant and have
developed an independent body of state law in the area of search
and seizure . . . . We have adopted separate standards when doing
so best promotes predictability and precision in judicial review of
search and seizure cases and the protection of the individual rights
of our citizens.”
People v. Weaver, 909 N.E.2d 1195, 1202 (2009) (internal quotation marks and citations
deleted); see also People v. Dunn, 564 N.E.2d 1054 (1980).
For the reasons indicated, plaintiffs' present class action, insofar as it is based on a
purported violation of the New York State Constitution remains viable notwithstanding
Florence. Therefore, defendants' application to withdraw its concession of liability as to this

26

state-based claim is denied.
CONCLUSION
Defendants' motion to vacate the portion of the January 16, 2007 Order granting
summary judgment to plaintiffs as to liability is granted as to the federally-based constitutional
claim, and plaintiffs' “FIRST CLAIM FOR RELIEF,” brought pursuant to “42 U.S.C. §1983,” is
dismissed with prejudice. (Am. Compl. in Augustin et al v. Jablonsky et al, 99 Civ
3126(DRH)(ARL) at 25.) However, plaintiffs' state-based constitutional claim, i.e. their
“SECOND CLAIM FOR RELIEF,” brought pursuant to “New York State Constitution Art. 1, §
12,” id. at 26, is unaffected by Florence; accordingly, defendants' application to vacate the
portion of previously identified summary judgment order with respect thereto and to dismiss the
underlying cause of action, is denied.
SO ORDERED.

Central Islip, New York
Dated: July 18, 2013

__________/s/_____________
DENIS R. HURLEY, U.S.D.J.

27