Sloley v. VanBramer
Citation945 F.3d 30
Date Filed2019-12-12
Docket16-4213-cv
Cited110 times
StatusPublished
Full Opinion (html_with_citations)
16-4213-cv
Sloley v. VanBramer
16â4213âcv
Sloley v. VanBramer
1 UNITED STATES COURT OF APPEALS
2 FOR THE SECOND CIRCUIT
3 ____________________
4
5 August Term, 2018
6
7 (Argued: September 12, 2018 Decided: December 12, 2019)
8
9 Docket No. 16â4213
10
11 ____________________
12
13 MAXMILLIAN SLOLEY,
14
15 PlaintiffâAppellant,
16
17 v.
18
19 ERIC VANBRAMER, in his individual and official capacity,
20 BRYAN VANBRAMER, in his individual and official capacity,
21
22 DefendantsâAppellees.1
23
24 ____________________
25
26 Before: NEWMAN, JACOBS, and POOLER, Circuit Judges.
27
28 Appeal from the United States District Court for the Northern District of
29 New York (Gary L. Sharpe, J.) granting summary judgment for Defendantsâ
1 The Clerk of the Court is direct to amend the caption as above.
1 Appellees Bryan and Eric VanBramer on PlaintiffâAppellant Maxmillian Sloleyâs
2 claims, brought under 42 U.S.C. § 1983, alleging, inter alia, that a visual body
3 cavity search to which he was subjected incident to a felony arrest violated his
4 Fourth Amendment right to be free from unreasonable searches. We hold that
5 such searches must be justified by specific, articulable facts supporting
6 reasonable suspicion that an arrestee is secreting contraband inside a body
7 cavity. Because this requirement was established by sufficiently persuasive
8 authority, it was âclearly establishedâ for purposes of a qualified immunity
9 defense by New York state police officers at the time of the search at issue in this
10 case. Moreover, we hold that disputed facts preclude a finding of reasonable
11 suspicion on a motion for summary judgment and remand for trial on the merits
12 of Sloleyâs claim and the issue of Eric VanBramerâs entitlement to qualified
13 immunity. Finally, because Sloley has presented no evidence that Bryan
14 VanBramer was aware that Eric VanBramer was conducting, or was going to
15 conduct, the visual body cavity search, the district court properly dismissed
16 Sloleyâs claims against him.
17 Affirmed in part, vacated in part, and remanded.
2
1 Judge Newman concurs in the judgment and in the opinion of the Court
2 and files a separate concurring opinion.
3 Judge Jacobs dissents in a separate opinion.
4 ____________________
5 JONATHAN K. YOUNGWOOD, Simpson Thacher &
6 Bartlett LLP (Janet A. Gochman, on the brief), New York,
7 NY, for PlaintiffâAppellant Maxmillian Sloley.
8
9 JONATHAN D. HITSOUS, Assistant Solicitor General
10 (Barbara D. Underwood, Solicitor General, Victor
11 Paladino, Assistant Solicitor General, on the brief), for
12 Letitia James, Attorney General of the State of New
13 York, Albany, NY, for DefendantsâAppellees Eric
14 VanBramer and Bryan VanBramer.
15
16 POOLER, Circuit Judge:
17 PlaintiffâAppellant Maxmillian Sloley brought this action pursuant to 42
18 U.S.C. § 1983 to vindicate the violation of his constitutional rights occasioned by,
19 inter alia, a visual body cavity search to which he was subjected incident to
20 arrest. The district court (Gary L. Sharpe, J.) granted summary judgment in favor
21 of DefendantsâAppellees Eric and Bryan VanBramer, reasoning that Bryan was
22 not personally involved in the search, the search was supported by a reasonable
23 suspicion, and Eric was entitled to qualified immunity in any event because
3
1 reasonable officers in his position could conclude that he had the requisite
2 reasonable suspicion. See Sloley v. VanBramer, No. 1:14âcvâ339 (GLS/CFH), 2016
3 WL 6603211, at *2â4 (N.D.N.Y. Nov. 8, 2016). On appeal, the VanBramers
4 additionally argue that they are also entitled to qualified immunity because it
5 was not clearly established at the time of the search that visual body cavity
6 searches incident to felony arrests must be supported by reasonable suspicion.
7 We vacate in part and hold that visual body cavity searches must be
8 justified by specific, articulable facts supporting reasonable suspicion that an
9 arrestee is secreting contraband inside the body cavity to be searched. Moreover,
10 because this requirement was established by sufficiently persuasive authority, it
11 was âclearly establishedâ for purposes of a qualified immunity defense by New
12 York state police officers at the time Eric searched Sloley. We further hold that
13 disputed facts preclude a finding of reasonable suspicion on a motion for
14 summary judgment and remand for trial on the merits of Sloleyâs claim and the
15 issue of Ericâs entitlement to qualified immunity. Finally, we affirm in part
16 because Sloley has not presented any evidence indicating that Bryan was aware
17 that Eric was conducting, or was going to conduct, the visual body cavity search.
4
1 BACKGROUND
2 I. Factual Background2
3 In the preâdawn hours of Monday, April 1, 2013, Sloley and Daphne
4 Rollins got into an argument at Rollinsâs house in Athens, New York. According
5 to Sloley, Rollins was somewhere between being his âgirlfriend or exâgirlfriendâ
6 at the time. Sloley Dep. Tr. at 37:4â6, ECF No. 41â2.3 The argument stemmed from
7 rumors Rollins had heard that Sloley was romantically involved with another
8 woman.
9 The argument escalated. At some point during the confrontation, Sloley
10 grabbed the intoxicated Rollinsâs cellphone and ran out of the house with it.
11 Rollins gave chase, falling down the houseâs front steps in the process. Rollins
12 then went back inside, reemerging with a baseball bat in hand. At that point,
2We gather the following factual background from the summary judgment
record, viewed in the light most favorable to Sloley. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986) (âThe evidence of the nonâmovant is to be believed,
and all justifiable inferences are to be drawn in his favor.â); Mitchell v. City of New
York, 841 F.3d 72, 75 (2d Cir. 2016).
3All such record citations refer to documents filed in the district court, Sloley v.
VanBramer, No. 1:14âcvâ339 (N.D.N.Y.).
5
1 Sloley retreated into his car, tossing Rollinsâs phone to the ground as he ran.
2 Rollins then struck the windshield of Sloleyâs car with the baseball bat.
3 After Rollins struck Sloleyâs car with the bat, they both returned inside. At
4 some point while they were inside, Sloley grabbed the bat from Rollins, went
5 back outside, and hit Rollinsâs car with it. Sloley then tossed the bat to the
6 ground before driving off. Rollins called 9â1â1, though Sloley was not aware at
7 that time that Rollins had called the police.
8 New York State Trooper Bryan VanBramer responded to Rollinsâs 9â1â1
9 call. According to Bryan, Rollins told him that Sloley may be involved with
10 illegal drug activity and possibly was in possession of illegal drugs. Rollins
11 denies having made any mention of Sloley being involved in, or possibly
12 involved in, drug activity and denies having suggested that Sloley might have
13 been possession of any illegal drugs.
14 A deputy from the Greene County Sheriffâs Office pulled Sloley over about
15 five minutes after he left Rollinsâs house. Sloley told the deputy about his dispute
16 with Rollins. Upon consultation with the New York State Police, the deputy then
17 placed Sloley in handcuffs and brought him back to Rollinsâs house.
6
1 Once there, the deputy who had apprehended Sloley transferred Sloley
2 into Bryanâs police car. After some discussion with Sloley, Bryan and another
3 state trooper present at the scene brought Sloley to a nearby state police station.
4 The troopers did not ask him if he was involved in any illegal drug activity.
5 At the police station, the troopers brought Sloley to an office, where they
6 handcuffed him to the wall. At that point, the troopers informed Sloley that he
7 was going to be charged with harassment and criminal mischief.
8 Unbeknownst to Sloley at the time, Bryan had at some point told his
9 brother, New York State Trooper Eric VanBramer, to go to Sloleyâs car with Ericâs
10 drugâsniffing dog, Ryder. According to Eric, he recognized Sloleyâs name âas
11 referring to an individual who was well known in the area for being wrapped up
12 in illegal drugs.â Eric VanBramer Aff. ¶ 4, ECF No. 41â5. Moreover, before April
13 1, 2013, âseveral peopleâ had told Eric that âSloley was a drug dealer.â Id.
14 Eric brought Ryder near Sloleyâs car. Ryder alertedâi.e., indicated the
15 presence of drugsâon each side of the car, in the area around the carâs hood, and
16 in the center console area inside the car. According to Eric, he saw âa small
17 amount of a loose, chunky substance that appeared to be crack cocaine in the
18 crease in the driverâs seat.â Id. ¶ 5. Eric claims he field tested the substance,
7
1 which tested positive for cocaine. Sloley does not contest the fact that Eric
2 brought Ryder to the car. However, he does dispute that Eric found any drugs in
3 the car. He asserts that neither he nor his mother, who owned the car, use crack
4 cocaine.
5 In any event, at some point after searching Sloleyâs car, Eric and Ryder
6 arrived at the state police station where Sloley was being held. Ryder walked
7 right by Sloley but paid no attention to him. Eric then asked Sloley if he âhad any
8 drugs stashed in [his] anal area.â Sloley Dep. Tr. at 64:9â10, ECF No. 41â2. Sloley
9 said that he did not. Eric told Sloley that he had found a small quantity of drugs
10 in his car, which provided grounds to strip search Sloley. Sloley denied that Eric
11 found drugs in the car, possibly saying something along the lines of, âThereâs no
12 way you found drugs in my car. I donât do drugs.â Id. at 64:18â20. As Sloley
13 elaborated at his deposition, âThereâs no way you are going to find drugs in my
14 car, especially in the driverâs seat. Thatâs impossible.â Id. at 67:19â21.
15 When the incredulous Sloley asked to see the drugs, Eric told him he could
16 not, because the âcrumbsâ of crack cocaine were âtoo smallâ to see. Id. at 85:3â6.
17 Nevertheless, according to Eric, he âdocumented on a General 2 Evidence
18 Recordâ that he had obtained from Sloleyâs car a substance that âtested positive
8
1 for cocaineâ and gave the evidence to Bryan. Eric VanBramer Aff. ¶ 9, ECF No.
2 41â5. According to Bryan, he âexecuted [the] General 2 Evidence Recordâ and
3 placed the evidence in an evidence locker. Bryan VanBramer Aff. ¶ 9, ECF No.
4 41â4.
5 Sloleyâs denial notwithstanding, Eric unhooked Sloley from the wall to
6 which he was handcuffed and brought him to a private back room of the police
7 station. Eric instructed Sloley to remove his clothing, and Sloley did so, piece by
8 piece. Eric searched each article of clothing as Sloley handed them to him. Once
9 Sloley was completely naked, Eric instructed him to lift his genitals, bend over,
10 spread his buttocks, and allow Eric to examine the nowâexposed areas of Sloleyâs
11 body. The search revealed no drugs secreted on or in Sloleyâs body.
12 After the search, Sloley got dressed and was brought to Athens Town
13 Court to be arraigned. Sloley was arraigned on the harassment and criminal
14 mischief charges, as well as a drug possession charge for the cocaine Eric had
15 purportedly found in his car. Sloley was held without bail in Greene County Jail.
16 Three days after his arraignment, Sloley was brought back to Athens Town Court
17 where he pled guilty to the harassment chargeâa violationâand was sentenced
18 to time served. The other charges were dropped.
9
1 II. Procedural History
2 On March 27, 2014, Sloley filed a pro se complaint, pursuant to 42 U.S.C.
3 § 1983, against New York State and the VanBramers alleging, inter alia, that the
4 search Eric conducted violated his Fourth Amendment right to be free from
5 unreasonable searches. The district court dismissed his claims against New York
6 State and the VanBramers in their official capacity sua sponte pursuant to 28
7 U.S.C. § 1915(e). 8 The VanBramers moved for summary judgment on September 18, 2015. 9 The district court granted the motion on November 8, 2016. See Sloley,2016 WL 10
6603211, at *1. The district court first concluded that Sloley had failed to establish 11 that Bryan was either present for, or personally involved in, the search and thus 12 could not be held liable.Id. at *2
. The court then concluded that Eric had the 13 reasonable suspicion required before officers can conduct strip and visual body 14 cavity searches incident to arrest and that Eric conducted the search in a 15 reasonable manner.Id.
at *3â4. The district court further concluded that Eric was 16 entitled to qualified immunity in any event because no clearly established law 17 stated that the facts before Eric were insufficient to support the reasonable 18 suspicion necessary to justify such searches incident to arrest.Id. at *4
.
10
1 The district court entered judgment dismissing the case on November 8,
2 2016. After fixing some problems with his notice of appeal, Sloley timely
3 appealed. On January 26, 2018, we entered an order granting Sloleyâs motion for
4 appointment of counsel.
5 DISCUSSION
6 We review de novo the district courtâs grant of summary judgment. Doe ex
7 rel. Doe v. Whelan, 732 F.3d 151, 155(2d Cir. 2013). Summary judgment is 8 appropriate only âif the movant shows that there is no genuine dispute as to any 9 material fact and the movant is entitled to judgment as a matter of law.â Fed. R. 10 Civ. P. 56(a). We âresolv[e] all ambiguities and draw[] all permissible factual 11 inferences in favor of the party against whom summary judgment is sought.â 12 Burg v. Gosselin,591 F.3d 95, 97
(2d Cir. 2010) (internal quotation marks omitted). 13 Moreover, the familiar standards that govern resolution of motions for 14 summary judgment apply equally to such motions based on an assertion of 15 qualified immunity. Tolan v. Cotton,134 S. Ct. 1861, 1866
(2014). We evaluate
16 claims of qualified immunity at summary judgment using a twoâpart inquiry: (1)
17 âwhether the facts, taken in the light most favorable to the party asserting the
18 injury, show the officerâs conduct violated a federal rightâ and (2) âwhether the
11
1 right in question was clearly established at the time of the violation.â Id.at 2 1865â66 (alterations omitted) (internal quotation marks omitted). Courts have 3 discretion in deciding the order in which to analyze the two prongs, Pearson v. 4 Callahan,555 U.S. 223, 236
(2009), but under either, they âmay not resolve 5 genuine disputes ofâ material fact, Tolan,134 S. Ct. at 1866
. 6 I. The Visual Body Cavity Search 7 It is necessary at the threshold to define several terms essential to our 8 analysis: 9 (1) a âstrip searchâ occurs when a suspect is required to 10 remove his clothes; (2) a âvisual body cavity searchâ is 11 one in which the police observe the suspectâs body 12 cavities without touching them (as by having the 13 suspect to bend over, or squat and cough, while naked); 14 (3) a âmanual body cavity searchâ occurs when the 15 police put anything into a suspectâs body cavity, or take 16 anything out. 17 Gonzalez v. City of Schenectady,728 F.3d 149, 158
(2d Cir. 2013); see also People v.18 Hall, 10
N.Y.3d 303, 306â07 (2008). Here, Sloley was subjected to a strip search
19 and visual body cavity search. However, on appeal, he challenges only the
20 constitutionality of the visual body cavity search.4 We therefore limit our analysis
4Sloley has forfeited any claim regarding the unconstitutionality of the strip
search. See Hamilton v. Atlas Turner, Inc., 197 F.3d 58, 61 (2d Cir. 1999) (describing
12
1 to that search. Thus, the questions to which we first turn are what the Fourth
2 Amendment requires when police officers conduct visual body cavity searches
3 incident to felony arrests and whether those requirements were clearly
4 established at the time Eric conducted the search at issue here.5
5 A. Visual Body Cavity Search Incident to Arrest Must Be Justified by
6 Reasonable Suspicion
7 Since at least 1914, it has been accepted that a search incident to an arrest
8 âconstitutes an exception to the warrant requirementâ the Fourth Amendment
9 otherwise imposes. Riley v. California, 573 U.S. 373, 382 (2014). However, the
10 scope of a search incident to arrest is limited. âAs the text of the Fourth
forfeiture as when âa litigantâs action or inaction is deemed to incur the
consequence of a loss of a rightâ and collecting cases). On that score, none of the
stated âIssues Presentedâ in his brief mention the strip search. Moreover, Sloleyâs
brief contains several statements indicating that he is raising issues concerning
only the visual body cavity search, including, inter alia, the point heading, âThe
Visual Body Cavity Search of Appellant Violated the Fourth Amendment
Because It Was Conducted Without Individualized Reasonable Suspicion.â
Appellantâs Br. at 16. Finally, after the VanBramers distinguished between strip
searches and visual body cavity searches in their brief, Sloley again focused only
on the visual body cavity search in his reply brief.
5 There is no indication here that the search was conducted pursuant to a
jailhouse policy that would bring it within the ambit of Florence v. Board of Chosen
Freeholders of Burlington, 566 U.S. 318, 328â30 (2012). Rather, Defendants assert
that the search was conducted as a search incident to arrest.
13
1 Amendment indicates, the ultimate measure of the constitutionality of a
2 governmental search is âreasonableness.ââ Vernonia Sch. Dist. 47J v. Acton, 515 U.S.
3 646, 652(1995). The reasonableness of â[t]he search incident to arrest exception 4 rests not only on the heightened government interests at stake in a volatile arrest 5 situation, but also on an arresteeâs reduced privacy interests upon being taken 6 into police custody.â Riley, 573 U.S. at 382. To determine whether a particular 7 search incident to arrest falls within this exception, âwe examine the degree to 8 which [it] intrud[es] upon an individualâs privacy and the degree to which [it is] 9 needed for the promotion of legitimate governmental interests.â Birchfield v. 10 North Dakota,136 S. Ct. 2160, 2176
(2016) (alterations omitted) (internal quotation 11 marks omitted). 12 Applying this framework, this Court has held that the âuniquely intrusive 13 nature of strip searches, as well as the multitude of less invasive investigative 14 techniques available to officersâ make it such that a strip search cannot be treated 15 as a routine search of an arresteeâs person. Hartline v. Gallo,546 F.3d 95, 102
(2d
16 Cir. 2008). Thus, we have held that the Fourth Amendment ârequires an
17 individualized âreasonable suspicion that a misdemeanor arrestee is concealing
18 weapons or other contraband based on the crime charged, the particular
14
1 characteristics of the arrestee, and/or the circumstances of the arrestâ before she
2 may be lawfully subjected to a strip search.â Id. at 100(alterations omitted) 3 (quoting Weber v. Dell,804 F.2d 796, 802
(2d Cir. 1986)). 4 The VanBramers are correct that neither we nor the Supreme Court have 5 ever squarely held that a similar reasonable suspicion requirement applies to 6 visual body cavity searches of persons arrested for felony offenses. Balancing the 7 degree to which visual body cavity searches âintrude[] upon an individualâs 8 privacyâ against âthe degree to which [they are] needed for the promotion of 9 legitimate governmental interests,â Birchfield,136 S. Ct. at 2176
(internal 10 quotation marks omitted), we now hold that such searches do require reasonable 11 suspicion. In other words, a visual body cavity search conducted as an incident 12 to a lawful arrest for any offense must be supported by âa specific, articulable 13 factual basis supporting a reasonable suspicion to believe the arrestee secreted 14 evidence inside a body cavity.â Hall, 10 N.Y.3d at 311. 15 Visual body cavity searches are invasive and degrading, occasioning a 16 serious invasion of privacy and working a significant harm to a personâs bodily 17 integrity. To begin with, strip searches, as opposed to other types of searches of a 18 person incident to arrest, are themselves âuniquely intrusive.â Hartline,546 F.3d 15
1 at 102. And yet visual body cavity searches are even more intrusive. They 2 ârequire an arrestee not only to strip naked in front of a stranger, but also to 3 expose the most private areas of her body to others. This is often, as here, done 4 while the person arrested is required to assume degrading and humiliating 5 positions.â Swain v. Spinney,117 F.3d 1, 6
(1st Cir. 1997). The freedom from such 6 âdegrading body inspections is . . . basic to the concept of privacy.â Canedy v. 7 Boardman,16 F.3d 183, 185
(7th Cir. 1994) (internal quotation marks omitted). 8 In contrast to that strong privacy interest, the governmentâs interest in 9 conducting suspicionless visual body cavity searches incident to arrest is slight. 10 The governmentâs legitimate interest in searching an arrestee flows from the 11 need âto protect officer safety or to preserve evidence.â Riley, 573 U.S. at 383. 12 Those interests would be, at most, minimally advanced by a rule that allowed 13 suspicionless visual body cavity searches of all arrestees. Regarding the 14 protection of officer safety, we are unaware of any case in which an arrestee 15 concealed inside a body cavity a weapon that he or she âmight seek to use in 16 order to resist arrest or effect his [or her] escape.â See Chimel v. California,395 U.S. 17
752, 763 (1969). If such cases exist, they are certainly not commonplace.
16
1 It is far more likely that an arrestee may conceal âdestructible evidence,â
2 see id., such as illegal drugs, in a body cavity. But a reasonable suspicion
3 requirement readily accommodates the governmentâs interest in preventing the
4 destruction of evidence without impairing that interest. If an arresting officer has
5 reason to believe, based on âspecific and articulable facts . . . , taken together with
6 rational inferences from those facts,â Terry v. Ohio, 392 U.S. 1, 21 (1968), that an
7 arrestee is secreting contraband inside a body cavity, then the officer is permitted
8 to conduct a visual body cavity search. If such suspicion is lacking, then the
9 governmentâs interest in preserving evidence must yield to the individualâs
10 strong privacy interest.
11 This holds true regardless of the level of crime for which a person is
12 arrested. Indeed, as the Supreme Court has repeatedly observed, it makes little
13 sense in this context to draw Fourth Amendment lines that rest on the felonyâ
14 misdemeanor distinction. Whether a person is arrested for a felony or a
15 misdemeanor says nothing about the likelihood that that person is secreting
16 contraband on or in his or her person. Indeed, â[e]xperience shows that people
17 arrested for minor offenses have tried to smuggle prohibited items into jail,
18 sometimes by using their rectal cavities or genitals for their concealment. They
17
1 may have some of the same incentives as a serious criminal to hide contraband.â
2 Florence v. Bd. of Chosen Freeholders of Burlington, 566 U.S. 318, 335(2012). And 3 while â[p]eople detained for minor offenses can turn out to be the most devious 4 and dangerous criminals,âid. at 334
, people arrested for felonies are not 5 necessarily more dangerous or more likely to conceal contraband, see Tennessee v. 6 Garner,471 U.S. 1, 14
(1985) (â[T]he assumption that a âfelonâ is more dangerous
7 than a misdemeanant [is] untenable. Indeed, numerous misdemeanors involve
8 conduct more dangerous than many felonies.â).
9 To be sure, the type of crime for which someone is arrested may play some
10 role in the analysis of whether a visual body cavity search incident to that arrest
11 is supported by reasonable suspicion. But that role has nothing to do with a
12 categorical distinction between felonies and misdemeanors. Rather, the question
13 is whether the criminal conduct for which a person was arrested speaks to the
14 likelihood that he or she secreted contraband inside a body cavity. On that score,
15 one may well more reasonably expect someone arrested for a misdemeanor drug
16 offense to be secreting contraband than someone arrested for felony tax fraud.
17 While the crime of arrest is not a determinative factor, it is one officers may take
18
1 into account in their consideration of the totality of the circumstances
2 surrounding the search.
3 Finally, this rule is consistent with the Supreme Courtâs preference for
4 âreadily administrableâ Fourth Amendment rules, rather than ones âqualified by
5 all sorts of ifs, ands, and buts.â Atwater v. City of Lago Vista, 532 U.S. 318, 347 6 (2001) (internal quotation marks omitted) (quoting New York v. Belton,453 U.S. 7
454, 458 (1981), abrogated on other grounds by Arizona v. Gant,556 U.S. 332
, 350â51
8 (2009)). Indeed, we were sensitive to this very concern in Gonzalezâa case that
9 also involved a visual body cavity search, 728 F.3d at 152âalbeit in the context of
10 our discussion of whether the officers in that case were entitled to qualified
11 immunity. There, we recognized that â[t]here are so many permutations of fact
12 that bear upon the constitutional issues of a search,â including that âthe arrest
13 can be for a misdemeanor or a felony.â Id. at 162. We add clarity by removing
14 one of those permutations of fact and create a readily administrable brightâline
15 rule that applies to all arrests.
16 In short, we have previously held that strip searches conducted incident to
17 a misdemeanor arrest must be supported by reasonable suspicion. Hartline, 546
18 F.3d at 100. We clarify today that that rule applies equally to visual body cavity
19
1 searches incident to all arrests and hold that such searches must be based on
2 reasonable suspicion to believe that the arrestee is secreting evidence inside the
3 body cavity to be searched.
4 B. Qualified Immunity
5 We now turn to the VanBramersâ contention that they are entitled to
6 qualified immunity because the Fourth Amendment rules applicable to visual
7 body cavity searches conducted incident to arrest were unsettled at the time Eric
8 searched Sloley. Their primary contention is that, at the time of the search, the
9 law was only sufficiently clear that reasonable suspicion was required to conduct
10 visual cavity searches incident to arrests for misdemeanors and other minor
11 offenses. The law was unclear, they argue, whether the same requirement
12 applied to searches incident to felony arrests.
13 For purposes of deciding whether a defendant is entitled to qualified
14 immunity, we do ânot require a case directly on point for a right to be clearly
15 established;â nevertheless, âexisting precedent must have placed the statutory or
16 constitutional question beyond debate.â White v. Pauly, 137 S. Ct. 548, 551 (2017)
17 (internal quotation marks omitted). That is because âqualified immunity protects
18 all but the plainly incompetent or those who knowingly violate the law.â
20
1 Mullenix v. Luna, 136 S. Ct. 305, 308(2015) (internal quotation marks omitted). 2 Moreover, the law must be clearly established with a high degree of âspecificityâ 3 because â[i]t is sometimes difficult for an officer to determine how the relevant 4 legal doctrine . . . will apply to the factual situation the officer confronts.â Id. 5 (first alteration in original) (internal quotation marks omitted); see also District of 6 Columbia v. Wesby,138 S. Ct. 577, 590
(2018). 7 At the time of the search at issue here, this Court had not yet held that 8 visual body cavity searches incident to a felony arrest must be supported by 9 reasonable suspicion. Nevertheless, we have little trouble concluding that that 10 requirement would have been sufficiently clear to a reasonable New York state 11 police officer in the VanBramersâ position. We have, at times, suggested that the 12 proper inquiry is whether âthe Supreme Court or the Second Circuit [has] 13 affirmed the rule.â Gonzalez,728 F.3d at 161
. However, that is not the only way in 14 which a right may be âclearly establishedâ for qualified immunity purposes. In 15 addition to being âdictated by controlling authority,â a right may be âclearly 16 establishedâ if it is supported by âa robust consensus of cases of persuasive 17 authority.â Wesby, 138 S. Ct. at 589â90 (internal quotation marks omitted); see also 18 Ashcroft v. alâKidd,563 U.S. 731
, 742 (2011); Wilson v. Layne,526 U.S. 603
, 617
21
1 (1999). The rule must be more than merely âsuggested by thenâexisting
2 precedent.â Wesby, 138 S. Ct. at 590. Rather, the âdecisions by this or other 3 courtsâ must âclearly foreshow a particular ruling.â Scott v. Fischer,616 F.3d 100
, 4 105 (2d Cir. 2010) (internal quotation marks omitted). âThe precedent must be 5 clear enough that every reasonable official would interpret it to establish the 6 particular rule the plaintiff seeks to apply.â Wesby,138 S. Ct. at 590
; see also 7 Reichle v. Howards,566 U.S. 658, 666
(2012). 8 Here, every reasonable officer in the VanBramersâ position as New York 9 State Troopers would have known that visual body cavity searches conducted 10 incident to any arrest must additionally be supported by âa specific, articulable 11 factual basis supporting a reasonable suspicion to believe the arrestee secreted 12 evidence inside a body cavityâ and must be conducted in a reasonable manner.13 Hall, 10
N.Y.3d at 310â11; see also People v. Mothersell,14 N.Y.3d 358
, 366â67 (2010). 14 As numerous district courts in this Circuit have recognized, Supreme Court and 15 Second Circuit precedent clearly foreshadowed the rule we clarify today. See, e.g., 16 Sims v. Farrelly, No. 10 Civ. 4765 (ER),2013 WL 3972460
, at *8 (S.D.N.Y. Aug. 2, 17 2013); Sorrell v. Incorporated Village of Lynbrook, No. 10 CV 49 (DRH) (GRB), 201218 WL 1999642
, at *6 (E.D.N.Y. June 4, 2012); Harriston v. Mead, No. 05 CV 2058
22
1 (RJD) (LB), 2008 WL 4507608, at *3 (E.D.N.Y. Sept. 30, 2008); Sarnicola v. County of 2 Westchester,229 F. Supp. 2d 259, 270
(S.D.N.Y. 2002); Murcia v. County of Orange, 3226 F. Supp. 2d 489, 497
(S.D.N.Y. 2002); see also Gonzalez, 728 F.3d at 166â68 4 (Pooler, J., dissenting). 6 5 This Court has been previously unpersuaded that existing Supreme Court 6 precedent, Second Circuit precedent, and the aboveâcited body of district court 7 decisions are sufficient to have made it âclearly establishedâ for qualified 8 immunity purposes that visual body cavity searches incident to felony arrests 9 require reasonable suspicion. Gonzalez,728 F.3d at 161
. What tips the balance in
10 this case, however, is the decision of the New York Court of Appeals, five years
6 The dissent incorrectly characterizes Scott v. Fischer, 616 F.3d 100 (2d Cir. 2010),
to stand for the proposition that we look only to the decisions of our or other
federal courts of appeals to determine if a federal right was âclearly
foreshadowed.â This characterization is flatly contradicted by Scott, which
explained in relevant part that âthe unconstitutionality of [a] law or course of
conduct will nonetheless be treated as clearly established if decisions by this or
other courts clearly foreshadow a particular ruling on the issue, even if those
decisions come from courts in other circuits.â Scott, 616 F.3d at 105 (internal
quotation marks and citations omitted) (emphasis added). This does not restrict
us to look only to federal circuit courts of appeals in assessing foreshadowing,
just as we are not forced to look only to ourselves or our sibling circuit courts to
assess if a right has been clearly established generally.
23
1 before the search at issue in this case took place, holding that the Fourth
2 Amendment requires visual body cavity searches conducted incident to any
3 lawful arrest7 to be supported by âa specific, articulable factual basis supporting
4 a reasonable suspicion to believe the arrestee secreted evidence inside a body
5 cavityââthe very rule we adopt today.8 Hall, 10 N.Y.3d at 311. Hall has been
6 consistently applied by New York state courts. See, e.g., People v. Harry, 884
7That courtâs Fourth Amendment holding did not turn on the level of crime for
which a person was arrested. To the contrary, the New York Court of Appeals
drew no distinctions between felonies and misdemeanors. Hall himself was
indicted on felony drug possession charges, id. at 306 (âDefendant was indicted
for criminal possession of a controlled substance in the third and fifth degrees.â);
see also N.Y. Penal Law § 220.06 (âCriminal possession of a controlled substance
in the fifth degree is a class D felony.â); id. § 220.16 (âCriminal possession of a
controlled substance in the third degree is a class B felony.â), and was initially
arrested on felony drug sale charges, People v. Hall, 829 N.Y.S.2d 85, 86 (1st Depât
2007) (noting that Hall was arrested âfor criminal sale of a controlled substance
in the third degreeâ), revâd, 10 N.Y.3d 303; see alsoN.Y. Penal Law § 220.39
(âCriminal sale of a controlled substance in the third degree is a class B felony.â).
8When the New York Court of Appeals decided Hall, it did so by interpreting the
Fourth Amendment, not the New York state constitution. See 10 N.Y.3d at 307â10
(discussing Fourth Amendment cases); see also id. at 312â13 (holding that, by
removing a âstringâlike object suspiciously hanging from defendantâs rectum . . .
without first obtaining a warrant, [the officers in that case] conducted an
unreasonable manual body cavity search in violation of the Fourth
Amendmentâ).
24
1 N.Y.S.2d 712, 712 (1st Depât 2009); People v. Gonzalez,870 N.Y.S.2d 529
, 530 (3d 2 Depât 2008). 3 The VanBramersâ ask our decision in Gonzalez to carry more weight than it 4 can bear. There, we held that it was not clearly established that an officer must 5 have reasonable suspicion before conducting a visual cavity search incident to a 6 felony arrest. Gonzalez,728 F.3d at 162
. However, that holding was based, at least 7 in part, on the observation that âHall was decided after the search at issue in 8 [that] case,âid. at 161
(emphasis added), and for that reason Gonzalez is not a 9 basis for upholding a qualified immunity defense for a search conducted after 10 Hall. Gonzalez also noted that ânot one case cited in Hall said that an officer needs 11 particular, individualized facts to conduct a visual body cavity search.âId.
Even 12 if true, that circumstance is not a basis for disregarding the authoritative effect of 13 a decision of New Yorkâs highest court on the availability of a qualified 14 immunity defense for a New York state police officer. The VanBramers cannot 15 draw the conclusive support they seek from a case regarding the state of the law 16 in 2006 when the search at issue in Gonzalez took place,id. at 153
, because the
17 legal landscape was different in 2013 when the search here took place.
25
1 To be clear, we need not and do not decide whether a decision of a state
2 court, standing alone, would necessarily suffice to defeat a Section 1983
3 defendantâs claim to qualified immunity in every case. Nevertheless, â[s]tate
4 court decisions, like the decisions of other federal lower courts, are relevant and
5 often persuasiveâ authority on the âclearly establishedâ issue. Charles W. v. Maul,
6 214 F.3d 350, 357(2d Cir. 2000); see also Buckley v. Rogerson,133 F.3d 1125
, 1129 7 (8th Cir. 1998) (âIn the absence of binding precedent, a court should look to all 8 available decisional law, including decisions of state courts, other circuits and 9 district courts.â (internal quotation marks omitted)); Tribble v. Gardner,860 F.2d 10 321, 324
(9th Cir. 1988) (similar).
11 Nor do we hold that Hall would necessarily tip the balance against finding
12 qualified immunity if this case involved officers from different states in our
13 Circuit.9 In this case, however, Hall is not just persuasive authority in this Court;
9 To the extent this result seems strange, it is simply a quirk of our federal
system, which charges state and federal courts alike to interpret and faithfully
apply the U.S. Constitution. Of course, if we disagreed with Hall, we would not
be bound to follow it, Charles W., 214 F.3d at 357, just as the New York Court of
Appeals is not bound to follow our interpretation of the U.S. Constitution, see,
e.g., People v. Kin Kan, 78 N.Y.2d 54, 60 (1991). The dissent contends that, by
relying on Hall, we impliedly hold that though states within the same circuit
actively disagree about federal constitutional law, such law can nevertheless be
26
1 it has been binding authority for the VanBramers since 2008. At the time Eric
2 conducted the visual body cavity search of Sloley in 2013, the VanBramersâNew
3 York State Troopersâwere already forbidden as a matter of federal
4 constitutional law as interpreted by the New York Court of Appealsâthe highest
5 court in their stateâfrom conducting suspicionless visual body cavity searches
6 incident to felony arrests. Thus, had they discovered evidence during the course
7 of a suspicionless visual body cavity search incident to arrest, that evidence
8 would have been subject to suppression on Fourth Amendment grounds in any
9 corresponding state criminal proceeding. See, e.g., People v. Colon, 913 N.Y.S.2d
10658, 659 (1st Depât 2011). We therefore do not hesitate to conclude that they were 11 âon notice their conduct [was] unlawful.â See Hope v. Pelzer,536 U.S. 730
, 739 12 (2002) (internal quotation marks omitted); see alsoid.
(â[Q]ualified immunity
clearly established for purposes of qualified immunity. But neither the dissent
nor the litigants point to a state case that holds visual body cavity searches can be
conducted incident to arrest without reasonable suspicion that the arrestee
secreted evidence inside their body. And insofar as we recognize that the cases of
state supreme courts can be persuasive authority in determining whether a
federal constitutional right is clearly established, we find no support for the idea
that litigants must point also to cases of the highest courts of Vermont and
Connecticut to bolster what was already clearly established in New York.
27
1 operates to ensure that before they are subjected to suit, officers are on notice
2 their conduct is unlawful.â (internal quotation marks omitted)).
3 We pause to address the dissentâs misplaced concern that our reliance on
4 the caselaw of the highest court of New York will inhibit police activity by
5 forcing police officers to be attentive to the federal law of constitutional rights as
6 developed in both state and federal courts. It is beyond doubt that police officers
7 frequently have difficult jobs. But if the dissent were right, then state police
8 officers could disregard the decisions of state supreme courts without any fear of
9 being held accountable through a § 1983 action. This is inconsistent with our
10 cases, which hold that courts can look to state court decisions to determine if a
11 federal right has been clearly established. See, e.g., Maul, 214 F.3d at 357
12 (explaining that â[s]tate court decisions, like the decisions of other federal lower
13 courts, are relevant and often persuasive.â). And in conjuring up a fictitious
14 world where police proceed as unlicensed attorneys, the dissent overlooks that it
15 is already the job of state police officers to follow the federal constitutional rules
16 articulated by the supreme court of their state.
28
1 II. Reasonable Suspicion for the Visual Body Cavity Search
2 Our analysis does not stop there, however. The VanBramersâ primary
3 argument on appeal is that Eric had the requisite reasonable suspicion to justify
4 the visual body cavity search. They alternatively contend that a reasonable
5 officer in Ericâs position could conclude that there was reasonable suspicion and
6 they are thus entitled to qualified immunity.
7 To determine whether an officer had reasonable suspicion to justify the
8 intrusion complained of, we âmust look at the totality of the circumstancesâ to
9 see if the âofficer ha[d] a particularized and objective basis for suspecting legal
10 wrongdoing.â United States v. Arvizu, 534 U.S. 266, 273(2002) (internal quotation 11 marks omitted). âAlthough a mere hunch does not create reasonable suspicion, 12 the level of suspicion the standard requires is considerably less than proof of 13 wrongdoing by a preponderance of the evidence, and obviously less than is 14 necessary for probable cause.â Navarette v. California,572 U.S. 393, 397
(2014)
15 (citation omitted) (internal quotation marks omitted).
16 Moreover, when the Fourth Amendment requires an officer to have
17 reasonable suspicion before undertaking a search, an officer is entitled to
18 qualified immunity unless we can âsay on the somewhat unique facts before us
29
1 that it is clearly established that no âreasonable suspicionâ justifiedâ a visual body
2 cavity search. Wachtler v. County of Herkimer, 35 F.3d 77, 81(2d Cir. 1994). Stated 3 differently, qualified immunity is unavailable if âno reasonable officer could 4 have believed that there was reasonable suspicion.â Dancy v. McGinley,843 F.3d 5 93, 108
(2d Cir. 2016). 6 The district court below held that Eric had the requisite reasonable 7 suspicion to conduct the search Sloley contends was unlawful and that Eric was 8 entitled to qualified immunity in any event because âthe court [could not] say 9 that the facts of this case demonstrate that it is clearly established that no 10 reasonable suspicion justified a stripâsearch.â Sloley,2016 WL 6603211
, at *3â4
11 (internal quotation marks omitted). On appeal, the VanBramers urge us to affirm,
12 arguing that Eric had reasonable suspicion that Sloley was secreting drugs inside
13 his anal cavity because Eric was aware of Sloleyâs criminal history, which
14 included a drugâcrime conviction, he had heard that Sloley was involved with
15 drug dealing, he knew that Sloley was fleeing a crime scene, and Sloley stated
16 that it was not possible that Eric had recovered drugs from his car. More
17 significantly, the VanBramers also point to the facts that Ryder alerted to several
18 areas of Sloleyâs car, including places from which Eric did not recover any drugs,
30
1 leading him to conclude that Sloley had recently removed whatever had caused
2 Ryder to alert, and that Eric recovered crack cocaine from the driverâs seat of
3 Sloleyâs car, which Eric regarded as consistent with Sloley spilling cocaine as he
4 secreted it.
5 We hold that Sloley has successfully raised a genuine dispute about
6 whether Eric actually recovered any crack cocaine from his car, which is a
7 material fact that precludes summary judgment. See Fed. R. Civ. P. 56(a). Because
8 that fact is central to the existence of the requisite reasonable suspicion and the
9 availability of qualified immunity, we remand for a trial on the merits of Sloleyâs
10 visual body cavity search claim, which shall include the issue of qualified
11 immunity. In so holding, we are particularly mindful of our obligation to
12 âresolve all ambiguities, and credit all factual inferences that could rationally be
13 drawn, in favor of the party opposing summary judgment.â Cifra v. Gen. Elec. Co.,
14 252 F.3d 205, 216 (2d Cir. 2001).
15 The VanBramersâ principal argument regarding the crack cocaine Eric
16 claims to have recovered is that Sloley lacks personal knowledge of the
17 circumstances of Ericâs search of his car and thus cannot raise a triable issue of
18 fact sufficient to resist summary judgment. We disagree. Sloley testified during
31
1 his deposition that neither he nor his mother, who owned the car, use drugs, thus
2 making it impossible for Eric to have found crack cocaine in the car. Sloley also
3 testified that it would have been impossible for Eric to find drugs in the driverâs
4 seat of his car because he would have known if there were drugs on the seat.
5 While that contention might not ultimately hold up in light of the trivial amount
6 of cocaine Eric purportedly recovered from the car, we draw the inference in
7 Sloleyâs favor that, if there were drugs on the driverâs seat of the car, he would
8 have seen them. See, e.g., id. Of course, a reasonable jury may well conclude that
9 Sloley would not have noticed the small amount of drugs Eric purportedly
10 recovered. That would certainly be one permissible inference. But the
11 VanBramers are not entitled to the benefit of that inference on their motion for
12 summary judgment in light of Sloleyâs competing plausible inference.
13 The VanBramers argue that Sloleyâs claim to personal knowledge fails
14 because he did not testify that he conducted a thorough inspection of the car
15 before driving it and because Sloleyâs mother also had access to itâalthough the
16 record appears to indicate that Sloley was the only one driving it in the days
17 preceding April 1, 2013. The VanBramersâ first argument is fodder for crossâ
18 examination and argument to the jury; it is not a foundational question that goes
32
1 to the basis of Sloleyâs personal knowledge. On that score, Sloley directly
2 testified during his deposition that he âdidnât see anyâ drugs10 and that he would
3 have known if there were drugs on the seat of the car on which he had been
4 sitting. Sloley Dep. Tr. at 84:4â8, 86:2â4, ECF No. 41â2.
5 Their second argument is also an inadequate reason for disregarding
6 Sloleyâs testimony. It is true that the car Sloley was driving belonged to his
7 mother, but Sloley plainly testified, âMy mother doesnât smoke crack and neither
8 do I.â Id. at 86:6â7. The VanBramersâ invocation of the fact that Sloleyâs mother
9 owned the car impliedly contests the truthfulness of that testimonyâsuggesting
10 that Sloley would not know if someone else, including Sloleyâs mother, was
11 responsible for the crack cocaine Eric purportedly discovered on the driverâs seat
12 of the car. This argument fails, in part, for the reason discussed above regarding
13 Sloleyâs personal knowledge of what was or was not on the driverâs seat, and, in
10Sloleyâs testimony on this issue is ambiguous. He may have been referring to
the fact that he did not see the drugs Eric claims to have recovered after Eric
claims to have recovered them (i.e., while Sloley was in custody in the police
station), or he may have been asserting that he did not see the drugs Eric claims
to have recovered before Eric claims to have recovered them (i.e., while Sloley
was in the car). We resolve this ambiguity in the record in Sloleyâs favor. E.g.,
Cifra, 252 F.3d at 216.
33
1 part, because suggesting that Sloleyâs testimony was inaccurate or untruthful
2 does not properly establish an undisputed fact on which the VanBramers may
3 rely on their motion for summary judgment. See, e.g., Cifra, 252 F.3d at 216.
4 Moreover, there is an apparent inconsistency between Sloleyâs testimony
5 and the VanBramersâ affidavits, which, combined with the reasons stated above,
6 creates a triable issue of fact as to whether Eric actually recovered any cocaine
7 from Sloleyâs car. According to the VanBramers, Eric documented the crack
8 cocaine in an evidence record and gave the evidence to Bryan. Bryan then
9 executed the evidence record, which established a chain of custody for the
10 evidence, and put the crack cocaine in an evidence locker. However, according to
11 Sloley, Eric told him that the crack cocaine was too small to see. That
12 contentionâthat the quantity of crack cocaine was nearly invisibleâseems at
13 least somewhat inconsistent with the notion that Eric recovered enough crack
14 cocaine to field test, catalog, and store in evidence.
15 We acknowledge that Sloleyâs assertion that Eric told him the crack cocaine
16 was too trivial to be visible is in tension with Sloleyâs assertion that he would
17 have seen drugs that were on the driverâs seat. But both possible resolutions of
18 this tension inure to Sloleyâs benefit: either the quantity of crack cocaine was
34
1 nearly invisible, calling into question whether Eric actually recovered enough
2 crack cocaine (or any) to field test, catalog, and store as evidence, or it was
3 substantial enough to field test, catalog, and store, from which a jury could
4 reasonably infer that Sloley would have noticed it on the driverâs seat.
5 Furthermore, if the trier of fact were to disbelieve Ericâs account of finding
6 drugs in Sloleyâs car, it would be entitled to disbelieve Ericâs claim that Ryder
7 alerted to Sloleyâs car. To be sure, Sloley was in no position to dispute that
8 particular allegation because he was in custody when Eric took Ryder to Sloleyâs
9 car. But a trier of fact may simply disbelieve Eric if he lied on another material
10 matterânamely, that he recovered crack cocaine from Sloleyâs car. While the
11 factual dispute about Ericâs alleged discovery of crack cocaine suffices to
12 preclude summary judgment, if the jury were to also disbelieve Ericâs testimony
13 regarding Ryderâs alert, the entire foundation for the VanBramersâ reasonable
14 suspicion argument would collapse. They would be left with, at most, some
15 suspicion that Sloley might have been involved in drug activity generally with
16 no factual basis to reasonably conclude he was secreting drugs inside his anal
17 cavity.
35
1 Finally, although Sloley does not point us to any case presenting identical
2 facts to his, and we have found none, that alone does not doom his claim by
3 granting Eric qualified immunity at the summary judgment stage. That the right
4 at issue must be stated with specificity is not to say that âan official action is
5 protected by qualified immunity unless the very action in question has
6 previously been held unlawful; but it is to say that in the light of preâexisting law
7 the unlawfulness must be apparent.â Anderson v. Creighton, 483 U.S. 635, 640 8 (1987) (citation omitted); see also Outlaw v. City of Hartford,884 F.3d 351, 367
(2d 9 Cir. 2018). 10 On that score, none of the undisputed facts remotely suggest that Sloley 11 was secreting drugs inside his anal cavity. Cf. Hartline,546 F.3d at 101
(âOfficer 12 Gallo did not notice anything about Hartlineâs physical appearance that 13 suggested she was secreting drugs on her person, nor did he engage in a less 14 invasive pat down search that suggested the presence of contraband.â). For 15 example, there is no evidence that Sloley was fidgeting or moved about 16 suspiciously, e.g., People v. Hunter,902 N.Y.S.2d 678, 680
(3d Depât 2010); Harry, 17 884 N.Y.S.2d at 712â13; People v. Walker,810 N.Y.S.2d 592, 595
(3d Depât 2006); 18 People v. Taylor,741 N.Y.S.2d 822, 824
(4th Depât 2002), that he reached or
36
1 attempted to reach his hands down his pants, Hunter, 902 N.Y.S.2d at 680; People 2 v. Banks,830 N.Y.S.2d 839, 841
(3d Depât 2007), that anyone observed Sloley 3 putting drugs down his pants or retrieving drugs (or anything else) from inside 4 his pants, e.g., Harry, 884 N.Y.S.2d at 712â13, People v. Barnville,819 N.Y.S.2d 234
, 5 235 (1st Depât 2006), or that Sloley himself was previously known to secrete 6 drugs inside his anal cavity, see People v. Clayton,868 N.Y.S.2d 303
, 305â06 (2d 7 Depât 2008) (â[T]he defendant had a history of secreting contraband in his rectum 8 . . . .â). Without some indicia that would suggest to a reasonable officer that 9 Sloley was secreting drugs in his anal cavity, Eric has not met his burden to 10 prove that he is entitled to qualified immunity in connection with the visual 11 body cavity search. See Outlaw,884 F.3d at 367
(âQualified immunity is an 12 affirmative defense on which the defendant has the burden of proof.â). 13 In sum, once the disputed fact that Eric recovered crack cocaine from 14 Sloleyâs car is disregarded, the evidence available to Eric supports no more than 15 a mere hunch that Sloley was secreting drugs inside his anal cavity. Such a 16 âhunch of criminal activity is insufficientâ to establish reasonable suspicion. See 17 United States v. Muhammad,463 F.3d 115, 121
(2d Cir. 2006) (internal quotation
18 marks omitted). Moreover, âwe are comfortable concluding that in the absence of
37
1 indicia that this Court [or New York State courts] ha[ve] found to support
2 individualized reasonable suspicionâ that Sloley was secreting drugs inside his
3 anal cavity, Hartline, 546 F.3d at 103, based on the undisputed evidence alone, 4 âno reasonable officer could have believed that there was reasonable suspicionâ 5 to conduct a visual body cavity search, see Dancy,843 F.3d at 108
. Eric is thus not 6 entitled to qualified immunity at the summary judgment stage in connection 7 with the visual body cavity search. 8 III. Bryanâs Failure to Intervene 9 The final question we must answer is whether Bryan was sufficiently 10 involved in or aware of the searches such that he may be held liable for failing to 11 intervene. âIt is widely recognized that all law enforcement officials have an 12 affirmative duty to intervene to protect the constitutional rights of citizens from 13 infringement by other law enforcement officers in their presence.â Anderson v. 14 Branen,17 F.3d 552, 557
(2d Cir. 1994). âWhether the officer had a ârealistic 15 opportunityâ to intervene is normally a question for the jury, unless, âconsidering 16 all the evidence, a reasonable jury could not possibly conclude otherwise.ââ 17 Terebesi v. Torreso,764 F.3d 217, 244
(2d Cir. 2014) (quoting Anderson,17 F.3d at 18
557).
38
1 Here, the VanBramers argue, inter alia, that the record lacks any evidence
2 indicating that Bryan was aware that Eric was going to conduct a visual body
3 cavity search. We agree. While the record is ambiguous as to whether Bryan was
4 in the room where Sloley was detained when Eric entered and told Sloley that
5 Eric was going to strip search him, Sloley provided no evidence that Eric
6 communicated to Bryan he was conducting, or was going to conduct, a visual
7 body cavity search. In light of this dearth of evidence, no reasonable jury could
8 conclude that Bryan had âa realistic opportunityâ to prevent this potentially
9 unconstitutional search. See id. (internal quotation marks omitted). Thus, the
10 district court properly dismissed Sloleyâs claims against Bryan.
11 CONCLUSION
12 For the foregoing reasons, we AFFIRM the district courtâs dismissal of
13 Sloleyâs claims against Bryan VanBramer, VACATE the dismissal of Sloleyâs
14 visual body cavity search claim against Eric VanBramer, and REMAND the case
15 for trial on the merits of Sloleyâs claim and the issue of Eric VanBramerâs
16 qualified immunity.
39
1 Jon O. Newman, Circuit Judge, concurring:
2 In dissent, Judge Jacobs contends that the majority opinion permits a
3 decision of New Yorkâs highest court, People v. Hall, 10 N.Y.3d 303 (2008), to
4 establish federal law for purposes of a New York state police officerâs qualified
5 immunity defense. Judge Jacobs also apprehends that the majorityâs ruling will
6 oblige police officers to âkeep ahead of trends in federal constitutional law . . . .â
7 Diss. Op. at 6.
8 I concur in Judge Poolerâs opinion and add these words to point out that the
9 majority considers Hall important to our ruling but by no means the sole basis for
10 deciding that the New York officer, arresting a person for a felony, should have
11 known that he must have reasonable suspicion to conduct a visual body cavity
12 search. I also seek to allay the unwarranted concern about police officersâ difficulty
13 in understanding the constitutional limits on their conduct.
14 The majority announces no general rule that the requirements of federal
15 law, for purposes of a qualified immunity defense to a claim of unconstitutional
16 police misconduct, can be established by a state court decision. The decision of the
17 New York Court of Appeals in Hall is enlisted as part of the guidance available to
18 the New York state police officer in this case because of the following unusual
1
1 combination of circumstances that existed prior to the visual body cavity search
2 he conducted:
3 (1) The Supreme Court acknowledged 34 years before the search in this case
4 that visual body cavity searches âinstinctively give us the most pause.â Bell v.
5 Wolfish, 441 U.S. 520, 558(1979). Although the Court permitted such searches in 6 Wolfish, it did so only in a limited circumstance: immediately after a contact visit 7 by a person from outside a prison with a pretrial detainee. Seeid.
And such 8 searches were deemed reasonable even in that limited circumstance on a record 9 that documents âinmate attempts to secrete [drugs and other contraband] into the 10 facility by concealing them in body cavities.âId. at 559
. 11 (2) The unconstitutionality of a visual body cavity search without 12 reasonable suspicion had been firmly established in this Circuit for those arrested 13 for misdemeanors, see Weber v. Dell,804 F.2d 796, 802
(2d Cir. 1986). 14 (3) The distinction between misdemeanors and felonies was highly unlikely 15 to be considered by a police officer hurriedly deciding to make a visual body cavity 16 search of a person arrested for a misdemeanor. See Tennessee v. Garner,471 U.S. 1
,
2
1 14 (1985) (In the context of Fourth Amendment searches and seizures, the
2 distinction between felonies and misdemeanors âis minor and often arbitrary.â).
3 (4) The seriousness of the assault that a visual body cavity search inflicts on
4 personal dignity had been repeatedly recognized in federal law, see, e.g., Mary Beth
5 G. v. City of Chicago, 723 F.2d 1263, 1272(7th Cir. 1983) (Visual bodyâcavity searches 6 are âdemeaning, dehumanizing, undignified, humiliating, terrifying, unpleasant, 7 embarrassing, repulsive, signifying degradation[,] and submission.â) (quotation 8 marks and citation omitted); Arruda v. Fair,710 F.2d 886, 887
(1st Cir. 1983)
9 (recognizing âthe severe if not gross interference with a personâs privacy that
10 occurs when guards conduct a visual inspection of body cavities).
11 (5) New Yorkâs highest court had instructed New York state police officers
12 that a visual body cavity search of all persons arrested requires reasonable
3
1 suspicion âsupported by a specific, articulable factual basis.â Hall, 10 N.Y. 3d at
2311. 3 (6) Decisions of New Yorkâs Appellate Division had reinforced the ruling in 4 Hall. See People v. Colon,913 N.Y.S. 2d 658, 659
(1st Depât 2011); People v. Bamisile, 5887 N.Y.S.2d 53, 54
(1st Depât 2009). 6 (7) District courts in this Circuit had understood that a visual body cavity 7 search requires reasonable suspicion. See, e.g., Sims v. Farrelly, No. 10 Civ. 4765, 82013 WL 3972460
, at *7â8 (S.D.N.Y. Aug. 2, 2013); Sarnicola v. County of Westchester, 9229 F. Supp. 2d 259, 264, 273
(S.D.N.Y. 2002); Murcia v. County of Orange,226 F. 10
Supp. 2d 489, 491, 497 (S.D.N.Y. 2002). Although these courts do not establish
11 federal law for purposes of qualified immunity, their consistency contributes to
12 the conclusion that the requirement of reasonable suspicion for visual body cavity
13 searches was established prior to VanBramerâs search.
14 The combination of these circumstances, not the Hall decision alone, clearly
15 establishes that reasonable suspicion is required for a visual body cavity search of
16 a person arrested for a felony. At a minimum, these circumstances clearly
17 foreshadow the requirement, and we have ruled that a constitutional limitation on
18 police conduct can be clearly established for purposes of a qualified immunity
4
1 defense if âdecisions by this or other courts âclearly foreshadow a particular ruling
2 on the issue.ââ Scott v. Fischer, 616 F.3d 100, 105(2d Cir. 2010) (quoting Varrone v. 3 Bilotti,123 F.3d 75, 79
(2d Cir. 1997)). 4 Judge Jacobs suggests that New York police officers will have to âanticipate 5 new law.â Not so. Once the highest court of New York ruled that a police officer 6 may conduct a visual body cavity search only if the officer has reasonable 7 suspicion âthat the arrestee has evidence concealed inside a body cavity,â People v.8 Hall, 10
N.Y.3d 303, 305 (2008), all New York police officers were on notice of their 9 legal obligations concerning visual body cavity searches. 10 Whether or not VanBramer could anticipate that this Court would rule, 11 under the particular circumstances outlined in Judge Poolerâs opinion, that 12 reasonable suspicion as a requirement for visual body searches of those arrested 13 for felonies was sufficiently established, or at least foreshadowed, to defeat a 14 qualified immunity defense under42 U.S.C. § 1983
, he was on notice that
15 reasonable suspicion was required. It would be fanciful to think that he said to
16 himself, âI know that New Yorkâs highest court has ruled that I need reasonable
17 suspicion, but I will go ahead without such suspicion because I am not sure that a
18 federal court will rule that the federal right not to be subjected to a body cavity
5
1 search without reasonable suspicion has been clearly established.â The majorityâs
2 decision to keep open on remand the possibility that he might not be entitled to
3 qualified immunity risks no unfairness to VanBramer.1
4 Judge Jacobs expresses concern that under the majorityâs ruling police
5 officers âwould need to keep ahead of trends in federal constitutional law as
6 developed in state courts as well as in federal courts.â Diss. Op. at 6. But the only
7 state court decisions the majority opinion charges VanBrmer or any reasonable
8 New York State police officer with an obligation to follow are decisions of New
9 York courts, which he is obliged to follow no matter how we rule. And though it
10 is concededly unusual to rule that reasonable police officers in Connecticut and
11 Vermont are not subject to the same federal requirement as reasonable New York
1 Judge Jacobsâ concern that VanBramer might be subject to damages and attorneyâs fees
âpersonally,â Diss. Op. at 2, discounts Article 24 of the contract between New York and the Police
Benevolent Association of the New York State Troopers, Inc., which provides for state
indemnification against losses arising out of claims for acts committed in the course of state police
officersâ employment. See https://goer.ny.gov/system/files/documents/ 2018/06/contractâ
agreementpbaâtroopersâfinal.pdf. Judge Jacobs suggests that if this contract matters, federal
constitutional law âwould vary from locality to locality.â Diss. Op. at 6â7. But the contract is not
claimed to have anything to do with establishing constitutional law. It simply shows that
VanBramer will not be subject to damages âpersonally.â Furthermore, the insulation provided by
the contract will not vary from locality to locality; it provides for state indemnification of all New
York state police officers.
6
1 police officers, I see no reason to impose on them a requirement influenced in
2 significant part, but not exclusively, by a decision of New Yorkâs highest court.
3 Finally, the majority does not âsplice[] together: a federal circuit court
4 decision that goes the other wayâ among other sources, as Judge Jacobs
5 apprehends. Diss. Op. at 5. The decision he cites, Gonzalez v. City of Schenectady,
6 728 F.3d 149 (2d Cir. 2013), denied qualified immunity to an officer who conducted
7 a visual body cavity search before the decision in Hall. Gonzalez made that
8 circumstance critical when it first noted that the visual body cavity search in Hall
9 did not violate a clearly established federal constitutional rule and then, in the very
10 next sentence, said, âHall was decided after the search at issue in this case.â 2 728
11 F.3d at 161 (emphasis added).
12 For all of these reasons, I concur in Judge Poolerâs opinion, ruling that a
13 remand to resolve a factual dispute is required in order to determine whether
14 VanBramer is shielded by qualified immunity from liability for conducting a
2 I acknowledge that the next sentence in Gonzalez, after the sentence stating the sequence
that Hall was decided after the search in that case, said, âIt [Hall] is not a ruling of the Supreme
Court or this Court.â 728 F.3d at 161. Nevertheless, now that the issue decided in Gonzalez has
returned to this Court with respect to a visual body cavity search conducted after Hall, it is no
disrespect to the Gonzalez holding for the majority opinion on this appeal to rely on this critically
distinguishing fact and include Hall along with all of the circumstances outlined above, which
Gonzalez had no need to consider when adjudicating the availability of qualified immunity as to
a search conducted before Hall.
7
1 visual body cavity search of Maximillian Sloley without reasonable suspicion that
2 narcotics were concealed within his body.
8
1 DENNIS JACOBS, Circuit Judge, dissenting:
2 I respectfully dissent. I would affirm the grant of qualified immunity to
3 New York State Trooper Eric VanBramer, who conducted a bodyâcavity search
4 when the plaintiff was arrested for a felony offense.
5 Federal constitutional law recognizes that a bodyâcavity search requires
6 reasonable suspicion if a person is arrested for a misdemeanor: âthe Fourth
7 Amendment precludes prison officials from performing strip/body cavity
8 searches of arrestees charged with misdemeanors or other minor offenses unless
9 the officials have a reasonable suspicion that the arrestee is concealing weapons
10 or other contraband . . . .â Weber v. Dell, 804 F.2d 796, 802 (2d Cir. 1986). There is
11 thus an express distinction between misdemeanors (and other minor offenses)
12 and felonies.
13 When in 2013 this Court considered this search question in the felony
14 context, the distinction was acknowledged, and qualified immunity was granted
15 to an officer who had executed a felony arrest: â[R]easonable officers could
16 disagree as to whether [the misdemeanor reasonable suspicion] rule applied to
17 those arrested for felony drug crimes, given the propensity of drug dealers to
1
1 conceal contraband in their body cavities.â Gonzalez v. City of Schenectady, 728
2 F.3d 149, 161(2d Cir. 2013). The corollary is that it is not clearly established in 3 federal law that an officer must have reasonable suspicion to justify a bodyâ 4 cavity search of a person arrested for a felony. 5 On this appeal, qualified immunity is denied in the same circumstances. 6 The question is, what has changed? And the answer given in the majority 7 opinion is: People v. Hall,10 N.Y.3d 303
(2008), a ruling of the New York State
8 Court of Appeals. Judge NewmanÊčs concurrence also admits the point (in a
9 roundabout way). But if Hall can make the difference to clearly establish the
10 Fourth Amendment right that Sloley contends was violated, then federal
11 constitutional law can be made clearly established by state courts. Moreover, it
12 would follow that clearly established federal constitutional law can differ stateâ
13 byâstate within the same circuit. That is not contested by the majority. Maj. Op.
14 28â29 & n.9. Thus it happens that a New York police officer is now made subject
15 to personally paying damages and attorneysâ fees for doing what in Connecticut
16 would be protected by immunity. Splits could thus be opened stateâbyâstate
17 within this Circuit on issues of federal constitutional law. I donât see how that
18 can be; and I see no explanation in the majority opinion beyond the shrug that
2
1 such a âstrangeâ result is âsimply a quirk of our federal system,â Maj. Op. 29 n.9.
2 (Judge NewmanÊčs concurrence calls it Êșconcededly unusual,Êș Concurring Op. 6â
3 an understatement on the order of: ÊșSome assembly required.Êș)
4 The majority elides the distinction between what Trooper VanBremer
5 should have known generally and what is clearly established federal
6 constitutional law. But only the latter governs qualified immunity. Judge
7 NewmanÊčs concurrence offers a digest of the longish majority opinion (a judicial
8 CliffsNotesÂź). But look as you may, you will see no supporting opinion of this
9 Circuit or the Supreme Court. I will likewise proceed in summary form. Judge
10 Newman and I have read the majority opinion so that others donÊčt have to.
11 First, the majority opinion teases the wording of Gonzalez in order to
12 make it conditional.1 This is a perfunctory bow to binding and recent precedent,
13 and (as such) breaches our traditional respect for panel holdings. Second, the
14 majority relies on Hall. But Hallâwhich of course is not a decision of the
15 Supreme Court or the Second Circuitâcannot plausibly make federal
16 constitutional law, let alone clearly establish it. See, e.g., Scott v. Fischer, 616 F.3d
1Judge NewmanÊčs concurrence acknowledges (footnote 2) that the majority
opinion quotes Gonzalez selectively.
3
1 100, 105 (2d Cir. 2010). The majority also leans on a truncated quote from Charles
2 W. v. Maul, 214 F.3d 350(2d Cir. 2000): â[s]tate court decisions, like the decisions 3 of other federal lower courts, are relevant and often persuasive.â214 F.3d 350
(2d 4 Cir. 2000). But the very next sentence of that opinion recognized that âwe are in 5 no way obliged to enforce [state court decisions],â id. at 357; and qualified 6 immunity was granted in that case on the ground that the state court decision 7 cited by the plaintiff could not clearly establish the asserted federal constitutional 8 right, id. at 361. In short, Maul subverts the majority opinion. 9 The majority falls back on statements in this Courtâs caselaw that, even if a 10 federal constitutional right has not been explicitly recognized by the Supreme 11 Court or this Court, we will nonetheless treat the right as âclearly establishedâ if 12 it was âclearly foreshadowedâ by existing caselaw. See Scott,616 F.3d at 105
. But 13 in determining whether a right has been âclearly foreshadowed,â we look to 14 decisions of this Court and the other federal courts of appealsâand nowhere 15 else. See id.; but cf. Garcia v. Does,779 F.3d 84
, 95 n.12 (2d Cir. 2015) (observing
16 that this Courtâs decisions are equivocal as to the relevance even of outâofâcircuit
17 federal cases). The majority here blandly asserts that âSupreme Court and
18 Second Circuit precedent clearly foreshadowedâ its result; but the omission of
4
1 any supporting citations to actual decisions of the Supreme Court or this Court is
2 telling. As set forth above, Gonzalez examined that very question and held that
3 the defendants were entitled to qualified immunity.
4 The majority invokes district court decisions to foreshadow the majorityâs
5 result; but all of them predate Gonzalez, which went the other way. In any event,
6 we are of course not bound by district court rulings, and perforce not bound by
7 district courtsâ predictions as to our future constitutional rulings. See McGowan
8 v. United States, 825 F.3d 118, 125 (2d Cir. 2016) (a right was not clearly
9 established if âthe only authority that [the plaintiff] has identified . . . is a district
10 court opinion, which, of course, is not bindingâ). Gonzalez remains precedent
11 that requires the grant of qualified immunity in this case.
12 ***
13 To maintain qualified immunity, officers need to know only the settled
14 precepts of federal constitutional law. In order to decide what every police officer
15 should know, the majority opinion splices together: a federal circuit court
16 opinion that goes the other way, a state court opinion, several trial court
17 opinions, and whatnot. If the majority opinion were the law, officers would need
5
1 to keep ahead of trends in federal constitutional law as developed in the state
2 courts as well as in the federal courts, see Maj. Op. 28; and because the majority
3 opinion shores up its argument with trial court opinions, officers would need to
4 follow developments in the trial courts as well as in the appellate courts: I donât
5 know what my colleagues think police do all day.
6 The majority has it backwards. The better an officer understands federal
7 constitutional law, the less plausible it would seem to her that settled federal
8 constitutional law could vary in the several states of a single circuit. Certainly, it
9 is news to me. It is hard enough for police to ascertain settled federal
10 constitutional law; it is surely harder to anticipate new law; but it is simply
11 impossible to anticipate error. So a police officer who understood the concept of
12 clearly established federal constitutional law would have no notice that it could
13 be one thing in New York and something else in Connecticut and Vermont. Even
14 among persons trained in the law, few would think that. So far, I count two.
15 Judge NewmanÊčs concurrence (footnote 1) goes further, and relies on a union
16 contract that indemnifies Trooper VanBremer from paying damages and
17 attorneyÊčs fees out of his own pocket (a fact not in the record). But if that could
18 matter, qualified immunity would vary from locality to localityâfrom Saugerties
6
1 to Hoosick Falls (or DUMBO)âdepending on whether there is a municipal union
2 contract and on what it might say. (Judge Newman is discounting to nothing
3 VanBremerÊčs interest in his professional reputation.)
4 If the majorityÊčs error prospers, police will have to follow federal
5 constitutional developments in the state courts as well as the federal courts, and
6 apply a learned distinction between state court rulings that are based on the
7 federal Constitution and those that are based on state law. It may be thought that
8 any confusion will be a benign limitation on the police; but it is by no means
9 always good to inhibit police conduct, and it is an error for federal courts to
10 restrict police conduct by imposing liability on individual officers unless the
11 federal Constitution is unambiguously violated. That is not my opinion; that is
12 Supreme Court law. See, e.g., Ashcroft v. AlâKidd, 563 U.S. 731, 741 (2011).
13 The majorityÊčs idea that federal law can be clearly established stateâbyâ
14 state, or even circuitâbyâcircuit, is conceptually flawed because federal
15 constitutional law is national and uniform. A circuit court ruling that a principle
16 is clearly established is not pronouncing on local or regional constitutional law; it
17 reflects the understanding of that circuit as to the clear establishment of that law
18 nationwide. That is why a circuit split on what is clearly established becomes a
7
1 problem for the Supreme Court to resolve. See Wilson v. Layne, 526 U.S. 603, 618
2 (1999) (reasoning that, in view of a circuit split, â[i]f judges thus disagree on a
3 constitutional question, it is unfair to subject police to money damages for
4 picking the losing side of the controversyâ). If federal constitutional law is
5 deemed to be made or settled in the courts of each state, the federal constitution
6 will mean different things in different places within each jurisdiction of a single
7 circuit: a kind of circuit splinter.2
2This is one reason in banc procedure exists: to maintain the consistency of
circuit law, as is done in other circuits.
8