Moser v. Anderson

• Court: District Court, D. New Hampshire
• Decided: November 25, 1996
• Docket: CV-93-634-B
• Status: Published

Opinion

Moser v. Anderson CV-93-634-B 11/25/96

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Pamela L. Moser, et al.

v. Civil No. 93-634-B

Carole A. Anderson, Administrator Merrimack County House of Corrections, et al.

O R D E R

Defendant Strafford County moves for summary judgment in

plaintiffs' civil rights action alleging violations of the

constitutional rights of detainees who were strip searched at the

Strafford County House of Corrections. Strafford's strip-search

policy, which began in 1982 and continued at least until October

1993, reguired strip searches "on all inmates at admission" to

the county jail. Strafford asserts that its strip-search policy

and the strip searches it conducted were not unconstitutional.

Another judge of this court has previously determined that

Strafford's policy of strip searching protective custody

detainees without reasonable individualized suspicion of finding

weapons or contraband was unconstitutional. Kidd v. Gowen, 829

F. Supp. 16, 19 (D.N.H. 1993).1 Most, if not all, jurisdictions

1 Kidd v. Gowen appears to be dispositive of Strafford's argument that its strip search policy passes constitutional muster. However, to the extent that Kidd might be interpreted narrowly to apply only to a policy set by a directive that has not been raised in this action and not to strip searches that have occurred under a different policy or practice, I now address generally Strafford's policies or practices of strip searching arrestees or detainees held for minor offenses without reasonable individualized suspicion that they might be carrying weapons or contraband. that have considered the constitutionality of strip searches have

determined that strip searches of arrestees or detainees held for

minor offenses and without reasonable suspicion that the

individual is carrying weapons or contraband are unconstitu­

tional. See, e.g., Wachtler v. County of Herkimer, 35 F.3d 77,

81 (2d Cir. 1994); Chapman v. Nichols, 989 F.2d 393, 395 (10th

Cir. 1993) (collecting cases), accord Warner v. Grand County, 57

F.3d 962, 964 (10th Cir. 1995); Watt v. City of Richardson Police

Dept., 849 F.2d 195, 197 (5th Cir. 1988) (collecting cases);

Giles v. Ackerman, 746 F.2d 614, 617 (9th Cir. 1984), cert.

denied, 105 S. C t . 2114 (1985), accord Fuller v. M.G. Jewelry,

950 F.2d 1437, 1447 (9th Cir. 1991) (collecting cases); Wood v.

Clemons, 89 F.3d 922, 929 (1st Cir. 1996)(applying reasonable

individualized suspicion standard to strip searches of prison

visitors); United States v. Uricoechea-Casallas, 946 F.2d 162,

166 (1st Cir. 1991) (applying same standard to border searches).

I am persuaded that these decisions are correct. Therefore, I

hold that strip searches of protective custody detainees or

arrestees for minor offenses without reasonable individualized

suspicion that they may be carrying weapons or contraband are

unconstitutional.

Strafford argues that the strip searches conducted under its

policy are constitutional because the county relied on a manual

prepared pursuant to a grant from the United States Department of

Justice.2 Even if the manual represented the Justice Depart-

2 Robert LeClair states in his affidavit that he drafted Strafford's strip-search policy in 1982 based on the "Small Jail merit's interpretation of constitutionally adequate procedures, it

would not be entitled to deference nor would adherence to the

manual make the county's policy constitutional. See, e.g.,

Dillard v. City of Greensboro, 74 F.3d 230, 235-36 (11th Cir.

1996) (citing and quoting Miller v. Johnson, 115 S. C t . 2475,

2491 (1995) ("we think it inappropriate for a court engaged in

constitutional scrutiny to accord deference to the Justice

Department's interpretation of the [Voting Rights] Act"));

Kilgore v. Mitchell, 623 F.2d 631, 635 (9th Cir. 1980) (reliance

on erroneous Justice Department policy interpreting wiretap

statute may provide a basis for qualified immunity but does not

make the practice legal).3 Therefore, Strafford's argument is

unavailing.

CONCLUSION

For the foregoing reasons, the defendants' motion for

summary judgment (document no. 70) is denied.

Resource Manual, published by Rod Miller and Ralph Nichols of Community Resource Services, Inc." LeClair further states that he understood that Community Resource Services received a grant from the Justice Department and the National Institute of Corrections to write the manual. Strafford provides no further evidence that the manual expressed the Justice Department's policy or interpretation of the legality of strip searches.

3 I do not decide the viability of a qualified immunity defense based on a "good faith" reliance on the manual as qualified immunity is not available to a municipality or a county and only Strafford has moved for summary judgment. See Leatherman v. Tarrant Countv Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 166 (1993) SO ORDERED.

Paul Barbadoro United States District Judge

November 25, 1996

cc: James P. Loring, Esg. Bruce E. Barron, Esg. Dort S. Bigg, Esg. William G. Scott, Esg. Donald E. Gardner, Esg.