273 F.3d 56 (2nd Cir.

2001)

RAY E. SHAIN, PLAINTIFF-APPELLEE-CROSSAPPELLANT,

v.
JOHN ELLISON, (SHIELD NO. 761), INDIVIDUALLY AND
AS A NASSAU COUNTY POLICE OFFICER; JOHN DOE,
INDIVIDUALLY AND AS AN ASSISTANT DISTRICT
ATTORNEY OF NASSAU COUNTY; THE COUNTY OF
NASSAU, A MUNICIPAL CORPORATION; JOSEPH
JABLONSKY, DEFENDANTS-APPELLANTS-CROSSAPPELLEES,
JAMES H. MADDEN, INDIVIDUALLY AND AS A JUDGE
OF NASSAU COUNTY, DEFENDANT-CROSS-APPELLEE.
Docket Nos. 00-7061 (L), 00-7069 (XAP)
August Term, 2000

UNITED STATES COURT OF APPEALS FOR THE SECOND

CIRCUIT
Argued: October 19, 2000
Decided: October 19, 2001

[Copyrighted Material Omitted]

Robert L. Herbst, Herbst & Greenwald, Llp (Gayle Pollack, on the brief),
New York, Ny; Ray E. Shain, pro se, Williston Park, Ny, for PlaintiffAppellee-Cross-Appellant.
Paul F. Millus, Snitow & Cunningham, Llp (Robert P. Devlin, on the
brief), New York, Ny, for Defendants-Apellants-Cross-Appellees County
of Nassau and Joseph Jablonsky.
Carol Fischer, Assistant Solicitor General (Eliot Spitzer, Attorney General
of the State of New York, Robert E. Forte, Deputy Solicitor General, and
Michael S. Belohlavek, Assistant Solicitor General, on the brief), New
York, Ny, for Cross-Appellee Judge James H. Madden.

Herbst & Greenwald, Llp (Robert L. Herbst and Gayle Pollack of

counsel), New York, Ny, for Amici Curiae Putative Class Members in
Augustin v. Jablonsky.
Emery Cuti Brinckerhoff & Abady PC (Richard D. Emery, Matthew D.
Brinckerhoff, John R. Cuti, and Nina Morrison, of counsel), New York,
NY for Amici Curiae 65,000 Class Members in Tyson v. City of New
York and Plaintiffs in O'Day v. Nassau County.
Daniel L. Greenberg, Sarah Kerr, John Boston, Laura Johnson, New York,
Ny, for Amicus Curiae Legal Aid Society.
Michael D. Hess, Corporation Counsel of the City of New York (Larry A.
Sonnenshein and Kathleen Alberton of counsel), New York, Ny, for
Amicus Curiae New York City Department of Correction.
Before: Cabranes, Pooler, Katzmann, Circuit Judges.

Judge Katzmann concurs in a separate opinion; Judge Cabranes dissents in part

in a separate opinion.
Pooler, Circuit Judge

This appeal requires us to determine whether it was clearly established in July

1995 that corrections officers in a local correctional facility could not perform a
strip search including a non- intrusive examination of body cavities on an
individual arraigned on misdemeanor charges unless the officers had reasonable
suspicion that the individual possessed contraband or weapons. We hold that
after this court's decisions in Wachtler v. County of Herkimer, 35 F.3d 77 (2d
Cir. 1994), Walsh v. Franco, 849 F.2d 66 (2d Cir. 1988), and Weber v. Dell,
804 F.2d 796 (2d Cir. 1986), no law enforcement officer reasonably could have
believed that it was permissible to perform such a search absent individualized
reasonable suspicion.

BACKGROUND
I. Shain's Arrest and Strip Search
3

On July 29, 1995, Nassau County police officers including Peter Ellison1
responded to a 911 call from Dr. Donna Denier, who was then married to
plaintiff Ray Shain, at the couple's residence. Denier showed Ellison a recently

expired order of protection that required Shain to stay out of her bedroom.
When Ellison realized that he could not arrest Shain for violation of the order
of protection, he interviewed Denier because
4

[He] wanted to get a clearer picture of exactly what [Shain] did, to see if [he]
could arrest him, if there was another charge that [he] could arrest him on
besides the order of protection [and after the interview, he] determined that [he]
could arrest him minus the order of protection, without it.

Ellison testified that Denier told him Shain entered her room and threatened to
rape her and that Ellison then believed he had probable cause to arrest Shain. In
his police report, Ellison said:

COMP REPORTS AT TIME AND PLACE OF OCCURRENCE LAYING IN

HER BED READING WHEN HER HUSBAND ENTERED ROOM. SHE
TOLD HIM SEVERAL TIMES TO LEAVE AND HE STATED AGAIN, "I'M
GOING TO FUCK YOU". SHE TOLD HIM TO LEAVE AGAIN AND
FEARING FOR HER SAFETY SHE LEFT THE ROOM AND CALLED THE
POLICE

Denier gave a more expansive account of her conversation with Ellison,

claiming that she also told him that Shain previously had threatened her and
been out of control and that he had thrown a table at her and swung a lamp at
her on prior occasions.

Ellison testified that when he arrested Shain for first degree harassment, a Class
B misdemeanor, Shain acted in an agitated manner. Shain himself admitted that
he did not turn over a pocket knife when he was asked to empty his pockets.
After retrieving the pocket knife, Ellison transported Shain to the police station
and "rear-cuffed" him to a manacle in a holding cell. Despite Shain's complaints
that he had undergone a spinal fusion as an adolescent and was in severe pain,
Ellison refused to take the cuffs off or to front cuff Shain. Ultimately, Ellison
and another officer took Shain to the Nassau County Medical Center where a
doctor who examined him reported that Shain was experiencing muscle spasms
and lumbar sprain and ordered that he not be cuffed behind his back. Ellison
spent the balance of the night at the central police station.

The next day, Shain appeared before Judge James H. Madden, a District Court
judge sitting as a Family Court judge, who arraigned Shain on Denier's family
offense petition. Without holding a hearing, Judge Madden remanded Shain to
Nassau County Correctional Center ("NCCC") without bond.

10

Upon Shain's arrival at NCCC, Officer James Dantunono directed him to

remove all his clothes and submit to a visual body cavity search. Dantunono
looked in Shain's ears, his mouth, his hair and under his arms, and then made
him turn around, bend over and spread his buttocks apart with his hands to
facilitate a visual inspection of his rectum. Dantunono also directed Shain to
hold up his external genitalia for inspection. Shain was again strip searched the
next morning before he left to appear in Family Court. When Shain appeared in
court, Family Court Judge Norman Feiden released him and allowed him to
return to his home. Denier withdrew the Family Court petition on August 7,
1995. However, on or about August 28, 1995, the Nassau County District
Attorney's Office filed harassment charges against Shain pursuant to N.Y. Penal
Law 240.26. Subsequently, these charges were dismissed pursuant to an
adjournment in contemplation of dismissal.
II. NCCC's Strip Search Policy

11

Although NCCC claims that it does not subject individuals charged with
misdemeanors and minor offenses to a strip search unless it has reasonable
suspicion that the arrestees are concealing contraband or they have been
remanded to NCCC's custody by a court, the written policies governing strip
searches require corrections officers to strip search each newly admitted inmate.
In addition, all of the corrections officials who testified conceded that all newly
admitted inmates were strip searched regardless of whether they were judicially
remanded. Thus, while arrestees held briefly in holding cells may not have been
strip-searched, all arrestees admitted to the jail were.
III. District Court Proceedings

12

Shain filed his lawsuit in the Eastern District of New York on July 29, 1996. In
a second amended complaint dated July 7, 1997, Shain named Ellison; Judge
Madden; "John Doe," an assistant district attorney; Joseph Jablonsky, the
Sheriff of Nassau County; the County of Nassau and various anonymous
corrections officers as defendants and requested damages for false arrest and
imprisonment, malicious prosecution, abuse of process, the unconstitutional
search of his person, assault and battery, and negligent and intentional infliction
of emotional distress. He also sought a declaration that New York State Family
Court Act 155(2), which allowed his overnight incarceration without bail, and
NCCC's strip search policy were unconstitutional and an injunction against
their enforcement.

13

On April 16, 1997, by stipulation and order, the district court dismissed all

claims against Judge Madden, leaving him as a defendant in name only to

permit Shain to continue his challenge to Section 155(2). On January 9, 1998,
the district court sua sponte dismissed Judge Madden as a defendant, finding
that "[p]laintiff may not discontinue all claims against Judge Madden yet
proceed to use him as a straw man to secure what is, in essence, an advisory
opinion as to the constitutionality of 155(2) of the Act."
14

On December 31, 1998, defendants moved for summary judgment on all of

Shain's claims. Shain cross-moved for partial summary judgment establishing
the unconstitutionality of NCCC's strip search policy. In an oral decision, Judge
Wexler granted defendants' motion to dismiss Shain's false arrest, malicious
prosecution, and abuse of process claims but reserved the excessive force and
strip search claims for trial. In a published opinion dated June 1, 1999, Judge
Wexler granted Shain partial summary judgment establishing that the strip
search policy was unconstitutional and that Jablonsky was not entitled to
qualified immunity. See Shain v. Ellison, 53 F. Supp. 2d 564 (E.D.N.Y. 1999).
More specifically, the court stated:

15

The policy of strip searching all misdemeanor and minor offense arrestees
remanded to the NCCC, without requiring any suspicion that the remanded
individual is concealing weapons or other contraband, violates the Fourth
Amendment to the United States Constitution.

16

Id. at 568. The court noted that NCCC presented evidence of security problems
that might be triggered by an order prohibiting it from strip searching all
arrestees entering the facility but believed itself prohibited from considering
this evidence by Weber v. Dell, 804 F.2d 796 (2d Cir. 1986) and Walsh v.
Franco, 849 F.2d 66 (2d Cir. 1988). See id. at 567-68.

17

A jury heard Shain's excessive force claim and evidence related to damages on
the strip search claim. It rejected the excessive force claim and awarded Shain
no damages for the strip search. Shain then moved to set aside the verdict and,
in the alternative, for a new trial. The court denied Shain's motion and entered a
judgment granting Shain $1.00 in nominal damages, declaring the strip search
policy to be unconstitutional, and dismissing the action on the merits.

18

Defendants County of Nassau and Jablonsky appealed, arguing principally that

(1) the district court erred by failing to give proper deference to NCCC's
security concerns; (2) Weber and Walsh do not govern this case because
NCCC's policy was limited to arrestees who had been judicially remanded; (3)
defendants had reasonable suspicion that Shain might be concealing a weapon

and thus Shain lacked standing to challenge NCCC's general policy; and (4)
Jablonsky was entitled to qualified immunity because the law concerning strip
searches of misdemeanor pre- trial detainees was unsettled. Shain, who is an
attorney, has submitted two briefs on his cross-appeal. In his counseled brief,
Shain defends the district court's strip search holding while arguing that the
district court should have granted injunctive relief and a new trial on damages.
In his pro se brief, Shain contends that the district court erred by failing to grant
him summary judgment on his false arrest claim; dismissing the malicious
prosecution, abuse of process, and false arrest claims; dismissing his claims
against Judge Madden and failing to reach the issue of the constitutionality of
Section 155(2); and declining to grant a new trial on the excessive force claim.
19

Several Amici Curiae have submitted briefs on the strip search issue. The New
York City Department of Correction, which has a strip search policy similar to
NCCC's, seeks reversal of the district court's decision. Class counsel for the
plaintiffs in Tyson v. City of New York, No. 97 Civ. 3762 (S.D.N.Y.) (JSM),
and O'Day v. Nassau County, 99-CV-2844 (E.D.N.Y.) (DRH) (ARL) primarily
request that the court not retreat from Weber and Walsh insofar as these
decisions apply to pre-arraignment detainees who are the plaintiffs in these two
lawsuits. Plaintiff's own counsel, who is also the attorney for the putative class
members in Augustin v. Jablonsky, CV-00-3126 (E.D.N.Y.) (DRH) (ARL) has
submitted a brief on their behalf in opposition to the strip search policy. Finally,
the Legal Aid Society, which represents incarcerated individuals in New York,
also has submitted a brief in opposition to NCCC's policy.

DISCUSSION
I. Strip Search Policy
A. Legality and Qualified Immunity
20

Although it appears likely that NCCC's strip search policy applied to all persons
actually admitted to the jail whether they had been arraigned or not, we
consider the legality of that policy as it applies to post-arraignment admittees to
the jail because Shain himself was a post-arraignment admittee.

21

Before Officer Dantunono searched Shain in July 1995, we had decided three
cases relevant to the issue before us. In Weber, we considered a Monroe
County Jail policy "calling for strip/body cavity searches of all arrested persons
other than those placed in `holding cells,' which are the cells in which arrestees
are sometimes placed when their release on bail is imminent." Weber, 804 F.2d

at 799. The police arrested plaintiff Ann Weber on misdemeanor charges of

making a false complaint and resisting arrest. See id. After jail officials booked
Weber, they required her to remove her clothing and "expose her body cavities
for visual inspection." Id. We held "that the Fourth Amendment precludes
prison officials from performing strip/body cavity searches of arrestees charged
with misdemeanors or other minor offenses unless the officials have a
reasonable suspicion that the arrestee is concealing weapons or other
contraband based on the crime charged, the particular characteristics of the
arrestee, and/or the circumstances of the arrest." Id. at 802. Although the
defendants argued that their policy applied only to arrestees who could not
make bail and thus were to be admitted to the general prison population, we
found it unnecessary to remand for factual findings because "even the more
narrowly drawn policy would be unconstitutional." Id. We also rejected
defendants' request for qualified immunity because all the circuits that had
addressed similar policies had found them to be unconstitutional and because
we long had stressed the intrusive nature of body cavity searches. See id. at
803.
22

Walsh reaffirmed the Weber holding, see Walsh, 849 F.2d at 68-69, and
Wachtler assumed Weber's applicability to the post-arraignment strip search of
a person charged only with a misdemeanor. Wachtler, 35 F.3d at 81-82. We
also found in Wachtler that the individual defendants were entitled to qualified
immunity because the law did not clearly establish whether Wachtler's conduct
was sufficient to trigger a reasonable suspicion. Id. at 81-82. However, we
reinstated Wachtler's claims against the County of Herkimer pending a fuller
development of the record. See id at 82. We said with respect to the County:

23

If the standard procedure included routine strip-searches of misdemeanor

arrestees, absent reasonable suspicion of weapons or contraband, and if no
reasonable suspicion concerning Wachtler's possession of such items existed,
then Wachtler would prevail.

24

Id. (citing Weber, 804 F.2d at 802-03).

25

Defendants contend that Wachtler does not indicate clearly that postarraignment strip searches of persons charged with a misdemeanor are
unconstitutional because the parties did not necessarily argue a distinction
between pre- and post-arraignment searches. Be that as it may, we recognized
that Wachtler had been arraigned and remanded to custody and nevertheless
found that a policy that subjected him to a strip search without individualized
reasonable suspicion would be unconstitutional. See id. at 79, 82. Because the
unconstitutionality of a post-arraignment strip search absent reasonable cause

was necessary to the court's holding in Wachtler, we reject defendants'

argument.
26

Defendants next argue that we must not read Wachtler to prohibit strip searches
of persons arrested for a misdemeanor after they have been arraigned because
this reading would conflict with two Supreme Court decisions, Bell v. Wolfish,
441 U.S. 520 (1979), and Block v. Rutherford, 468 U.S. 576 (1984). In Bell,
the Supreme Court considered the constitutionality of a policy that subjected
pre-trial detainees to strip searches after a contact visit. It reasoned that
"maintaining institutional security and preserving internal order and discipline
are essential goals that may require limitation or retraction of the retained
constitutional rights of both convicted prisoners and pretrial detainees." Bell,
441 U.S. at 546. Quoting Pell v. Procunier, 417 U.S. 817,827 (1974), the Court
held that "in the absence of substantial evidence in the record to indicate that
the officials have exaggerated their response to these considerations, courts
should ordinarily defer to their expert judgment in such matters." Id. at 548, 99
S. Ct. 1861. Applying these principles, the Court upheld a visual, no-contact
body cavity search of detainees after contact visits with persons from outside
the institution. It said, "assuming for present purposes that... pretrial detainees...
retain some Fourth Amendment rights upon commitment to a corrections
facility, we nonetheless conclude that these searches do not violate that
Amendment. The Fourth Amendment prohibits only unreasonable searches, and
under the circumstances, we do not believe that these searches were
unreasonable." Id. at 558, 94 S. Ct. 2800 (internal citations omitted).

27

In Block, the Supreme Court upheld jail policies prohibiting contact visits by
pre-trial detainees and permitting jail authorities to conduct random searches of
cells in the absence of their pre-trial detainee occupants. However, its holding
rests on a due process analysis and thus adds little to the holding of Bell. See
Block, 498 U.S. at 590; see also Weber, 804 F.2d at 800.

28

In Weber, we said that Bell did not "read out of the Constitution the provision
of general application that a search be justified as reasonable under the
circumstances." Weber, 804 F.2d at 800. We also described three factors
potentially supporting the determination that the Bell plaintiffs had no right to
be free of a strip search: they already had been arraigned; they had failed to
make bail; and they "had presumably chosen to receive visitors and to enjoy
physical contact with them." Id. In Wachtler, we implicitly held that the mere
fact of arraignment did not remove a misdemeanor arrestee from the purview of
Weber and place him within the ambit of Bell. See Wachtler, 35 F.3d at 79, 82.
The Wachtler result is not at odds with Bell. First, the Bell court did not
address the issue of whether persons charged only with misdemeanors must be

treated differently from persons charged with felonies.2 Second, and more
important, Bell authorized strip searches after contact visits, where contraband
often is passed. See Block, 468 U.S. at 586. It is far less obvious that
misdemeanor arrestees frequently or even occasionally hide contraband in their
bodily orifices. Unlike persons already in jail who receive contact visits,
arrestees do not ordinarily have notice that they are about to be arrested and
thus an opportunity to hide something. For the exceptions - for example, a
person who is allowed to visit the bathroom unescorted before an arrest reasonable suspicion may well exist.
29

Finally, defendants argue that arraignment represents a crucial step in criminal

proceedings that justifies heightened security measures. In Block, the Supreme
Court said that "[t]he very fact of nonrelease pending trial... is a significant
factor bearing on the security measures that are imperative to proper
administration of a detention facility" because of the ease of obtaining bail or
release on one's own recognizance. Block, 468 U.S. at 583. The same cannot be
said of a misdemeanor arrestee in New York because he must be released on his
own recognizance or granted bail. See N.Y. Crim. Proc. L. 170.10(7). It is
only because Denier proceeded civilly against Shain in Family Court that the
judge could hold him without bail and without considering the statutory factors
relevant to criminal detainees despite the fact that he was charged only with a
misdemeanor. Compare N.Y. Fam. Ct. Act 155(2) with N.Y. Crim. Proc. L.
510.30(2)(a). Although a New York felony defendant's post-arraignment
detention may well be an indicator of an increased security risk, a person
charged with a misdemeanor who remains in jail in New York after arraignment
probably does so because (a) he cannot afford the bail set; (b) he refuses to post
bail; or (c) he was arraigned on a Family Court matter, see N.Y. Fam. Ct. Act.
155, Douglas J. Besharov, Practice Commentary (discussing abuse of Section
155). None of these scenarios creates a reasonable suspicion that the alleged
offender has secreted contraband or a weapon.

30

The dissent, albeit not the defendants or the amicus who supports defendants'
position, argues that a separate line of Supreme Court cases employing a
different analytical model controls the outcome of this appeal. These cases hold
that a reasonable relation to a legitimate penological interest suffices to
establish the constitutionality of a prison regulation. Washington v. Harper, 494
U.S. 210, 223 (1990); O'Lone v. Estate of Shabazz, 482 U.S. 342, 349 (1987);
Turner v. Safley, 482 U.S. 78, 87 (1987). Between Walsh and Wachtler, we
employed the Turner model to uphold the legality of a strip search that took
place in a prison. Covino v. Patrissi, 967 F.2d 73 (2d Cir. 1992). Covino, who
had been charged with kidnapping a child under the age of sixteen, id. at 74 n.1,
was housed in a state correctional facility where he was commingled with

sentenced inmates. Id. at 75. We upheld the pertinent regulation, which allowed
random strip searches of inmates, despite Covino's pretrial detainee status
because the regulation was "reasonably related to legitimate penological
interests." Id. at 78 and n.4. Turner, Washington, O'Lone and Covino each
approved a regulation of a state correctional facility or prison, but NCCC is a
local correctional facility or jail. A prison is"[a] state or federal facility of
confinement for convicted criminals, esp[ecially] felons." Black's Law
Dictionary 1213 (7th ed. 1999). A jail, on the other hand, is "[a] place where
persons awaiting trial or those convicted of misdemeanors are confined." Id. at
838. This distinction is reflected in New York where state correctional
facilities, commonly referred to as prisons, house those convicted of the most
serious crimes and local correctional facilities or jails house persons convicted
of minor crimes and pre- trial detainees. See N.Y. Crim. Proc. L. 430.20(2),
(3); N.Y. Penal L. 70.00(1), 70.15.
31

Despite the limitation of Turner, Washington, O'Lone, and Covino to prison

regulations and the substantial difference between jail and prison populations,
the dissent contends that Turner implicitly overruled Weber. We disagree. We
start with the proposition that we have "no authority to depart from Second
Circuit precedent, unless it has been overruled in banc or by the Supreme
Court." Leecan v. Lopes, 893 F.2d 1434, 1443 (2d Cir. 1990). Additionally, we
should not lightly assume that two prior cases of this court are inconsistent, and
we must accept a plausible reading of a case that renders it consistent with
other Second Circuit precedent even where an alternative reading exists. See,
e.g., Rocket Jewelry Box v. Noble Gift Packaging, 157 F.3d 174, 176 (2d Cir.
1998). Neither Turner nor Covino purports to address any issue other than
prison regulations. Thus, these cases can be read consistently with Weber and
its progeny by confining them to their facts and actual holdings.3 The dissent's
arguments for "assum[ing] that when the Turner Court developed the
`reasonably related' standard, it intended for it to apply to facilities like NCCC"
may be relevant to whether the Turner line of cases should be extended to jails
by the Supreme Court, but they are not relevant to the question of whether
Turner overruled Weber. [Dissent, infra, at 74]

32

The district court therefore correctly held that because it was clearly established
in 1995 that persons charged with a misdemeanor and remanded to a local
correctional facility like NCCC have a right to be free of a strip search absent
reasonable suspicion that they are carrying contraband or weapons, Jablonsky
was not entitled to qualified immunity. The illegality of the sheriff's policy also
provides the necessary basis for affirming the County's liability. See Weber,
804 F.2d at 803 (holding Monroe County liable for strip search policy
implemented by its sheriff).

B. Standing
33

Even assuming the illegality of NCCC's policy, defendants argue that Shain
cannot complain because NCCC had reasonable suspicion concerning him
based on the court remand and on facts known by law enforcement personnel
other than Dantunono, the officer who actually performed the strip search. We
disagree. Although searching officers may rely on information provided to
them by their colleagues, see Velardi v. Walsh, 40 F.3d 569, 574 (2d Cir. 1994),
there is no evidence that Ellison, who was employed by the Nassau County
Police Department, or the officers who accompanied Shain to and from court,
communicated any information to Dantunono. Thus, the only information
Dantunono knew and the only fact NCCC required for a strip search was the
fact of the remand.4 This remand merely required NCCC to receive and detain
Shain until his Family Court appearance and indicated that Shain had been
charged under Article 8 of the Family Court Act. Because Article 8 covers
offenses ranging from disorderly conduct to assault, the remand itself could not
provide reasonable and individualized suspicion. In fact, Lieutenant John
Considine, commanding officer of NCCC's operations unit, conceded that the
information in Shain's file would not have provided reasonable suspicion that
he possessed contraband.
C. The Injunction

34

Although plaintiff requested an injunction against future enforcement of the

blanket strip search policy, the district court judgment neither explicitly granted
nor denied this request. Plaintiff's attorney objected to the proposed judgment,
in part, on the basis that it did not address the injunction. Plaintiff now claims
that the district court erred by failing to grant an injunction once the illegality
of the strip search procedure was established. Defendants respond that the
district court did not err because NCCC voluntarily suspended its policy
pending appeal. However, the record before us is not adequate to determine
whether injunctive relief is necessary, and the district court did not make
findings of fact or conclusions of law relevant to the grant or denial of
injunctive relieve. Therefore, we remand to allow the district court to make the
necessary findings and conclusions. See Fed. R. Civ. P. 52(a).
D. Refusal of New Trial on Damages

35

In his charge, the district judge instructed the jury that if it found defendants
had violated Shain's constitutional rights but he had not suffered a compensable
injury, it should award nominal damages not to exceed one dollar. The judge

also instructed the jury that he previously had found defendants' strip search
policy to be unconstitutional. When the jury returned its verdict, the court asked
what compensatory and punitive damages the jury had awarded on the strip
search claim and the foreman responded "Zero." The judge did not ask what
nominal damages the jury had awarded. Plaintiff then moved to set aside the
verdict and for a new trial, and the court denied both motions. However, the
court did enter a nominal damages judgment of one dollar. On appeal, Shain
argues only that the court should have granted him a new trial on damages.
36

We review a district court's decision not to grant a new trial on damages solely
for abuse of discretion. See Amato v. City of Saratoga Springs, 170 F.3d 311,
314 (2d Cir. 1999). The district court should not grant such a motion "unless [it]
is convinced that the jury has reached a seriously erroneous result or that the
verdict is a miscarriage of justice." Id. (internal quotation marks omitted). Shain
cannot meet this high standard. He produced no objective medical or
psychological testimony linking a psychological or physical injury to the strip
search, and although he and his former girl friend testified that he was
emotionally traumatized by the search, the jury was not required to credit this
testimony. See id. at 314-15. Nor was it error for the court to correct the jury's
verdict by entering a nominal damages award of one dollar since nominal
damages are appropriate for the violation of a constitutional right. See Dawes
v. Walker, 239 F.3d 489, 497 (2d Cir. 2001) (collecting cases holding that it is
error not to award nominal damages where a constitutional violation is
established).
II. False Arrest

37

In order to make out a New York common law or Section 1983 claim for false
arrest or imprisonment, plaintiff must demonstrate that defendant intended to
confine him, he was conscious of the confinement, he did not consent to the
confinement, and the confinement was not otherwise privileged. See Singer v.
Fulton County Sheriff, 63 F.3d 110, 118 (2d Cir. 1995). An arrest made on
probable cause is privileged, and probable cause exists "when the arresting
officer has knowledge or reasonably trustworthy information sufficient to
warrant a person of reasonable caution in the belief that an offense has been
committed by the person to be arrested." Id. at 119 (internal quotation marks
omitted). The officer may rely on the victim's allegations. See Martinez v.
Simonetti, 202 F.3d 625, 634 (2d Cir. 2000).

38

New York Penal Law 240.25, which defines first degree harassment, states in
relevant part:

39

A person is guilty of harassment in the first degree when he or she intentionally

and repeatedly harasses another person by following such person in or about a
public place or places or by engaging in a course of conduct or by repeatedly
committing acts which places such person in reasonable fear of physical injury.

40

Ellison's report of the incident stated that Denier told him Shain entered her
bedroom, refused several requests to leave, and threatened to rape her.5 We find
that Shain's alleged refusal to leave the room after repeated requests coupled
with his alleged threat to rape Denier constituted a course of conduct that could
reasonably have caused Denier to fear for her safety. See People v. Murray, 167
Misc.2d 857, 861 (N.Y. Crim. Ct. 1995) (finding course of conduct within the
meaning of the harassment statute where "[d]efendant walked along side the
complainant to her office, barr[ed] her way when she sought to escape inside
[and] continued to stalk her as she retreated up the street [and] forcibly
prevent[ed] her from obtaining assistance from [a] parked van" although the
conduct only lasted five to eight minutes). Therefore, we affirm the district
court's dismissal of Shain's false arrest claim.
III. Malicious Prosecution

41

In order to sustain a claim for malicious prosecution, Shain must demonstrate,

among other things, that the prosecution terminated in his favor. See, e.g.,
Murphy v. Lynn, 118 F.3d 938, 947 (2d Cir. 1997). Because an adjournment in
contemplation of dismissal is not considered to be a favorable termination,
Shain cannot sustain his malicious prosecution claim based on the criminal
proceeding. See id. at 949. Nor can Shain rely on Denier's withdrawal of her
Family Court petition because Denier is not a defendant in this lawsuit. We
therefore affirm the district court.
IV. Abuse of Process

42

"[A] malicious abuse of process claim lies against a defendant who (1) employs
regularly issued legal process to compel performance or forbearance of some
act (2) with intent to do harm without excuse or justification, and (3) in order to
obtain a collateral objective that is outside the legitimate ends of the process."
Cook v. Sheldon, 41 F.3d 73, 80 (2d Cir. 1994). Bringing a defendant before a
judge for arraignment satisfies the first element. See id. To show improper
motive, Shain relies on Ellison's testimony that he knew Denier from the
hospital and that after he found the order of protection had expired, he
interviewed her further to determine whether there was another basis to arrest
Shain. These allegations do not show intent to do harm without excuse or

justification. Ellison's superficial acquaintance with Denier hardly suggests

improper motive, and his continuance of the investigation when he found the
order of protection had expired was merely good police work. The district court
properly dismissed this claim.
V. Excessive Force
43

Shain contends that he also is entitled to a new trial on his excessive force
claim principally because the court instructed the jury that Ellison could use
sufficient force to arrest Shain. As we have found that Ellison did have probable
cause to arrest Shain, the charge was not erroneous. See Calamia v. City of
New York, 879 F.2d 1025, 1034-35 (2d Cir. 1989). Shain also argues that the
court abused its discretion by admitting Denier's testimony concerning his past
abuse and her account of this abuse to Ellison. However, what Denier told
Ellison was relevant to the jury's determination of whether Ellison used
excessive force by rear cuffing Shain. Therefore, the district court did not abuse
its discretion.
VI. Judge Madden and Section 155(2) Claim

44

The parties stipulated to dismiss all claims against Judge Madden but to keep
him as a nominal defendant for the purpose of testing the constitutionality of
Family Court Act 155(2). The district court initially "so ordered" this
stipulation but later dismissed the claims against Judge Madden in their entirety
without directly ruling on plaintiff's claim that Section 155(2) is
unconstitutional. The district court did not err because (1) at the time the court
issued its sua sponte order (1) there was no realistic danger that Shain would
face the same harm again and (2) there was no defendant against whom Shain
could have recovered damages. Denier withdrew her Family Court petition on
August 7, 1995, and there is no allegation that she ever filed another one. By
the time Judge Wexler issued his order, the parties had been divorced for over a
year. Because Shain could not show "that these same parties are reasonably
likely to find themselves again in dispute over the issues raised in this appeal,"
he lacked a legally cognizable stake in seeking an injunction or a declaratory
judgment. Muhammad v. City of New York Dep't of Corrections, 126 F.3d 119,
124 (2d Cir. 1997) (internal quotation marks omitted). Nor could Shain have
obtained damages from any of the defendants because Judge Madden is
protected by judicial immunity, see Stump v. Sparkman, 435 U.S. 349, 364
(1978), and the remaining defendants bore no responsibility for Shain's
continued incarceration after the judicial remand.

CONCLUSION

45

We affirm the district court's judgment except as to the failure to rule explicitly
on Shain's request for injunctive relief against NCCC's strip search policy. With
respect to that policy, we remand to the district court for further proceedings in
accord with this opinion.

NOTES:
1

Shain wrongly sued Officer Ellison as John Ellison.

In fact, the Court saw no basis for distinguishing between pretrial detainees and
convicted inmates because
There is no basis for concluding that pretrial detainees pose any lesser security
risk than convicted inmates. Indeed, it may be that in certain circumstances
they present a greater risk to jail security and order. In the federal system, a
detainee is committed to the detention facility only because no other less drastic
means can reasonably assure his presence at trial. As a result, those who are
detained prior to trial may in many cases be individuals who are charged with
serious crimes or who have prior records. They also may pose a greater risk of
escape than convicted inmates. This may be particularly true at facilities like
the MCC, where the resident convicted inmates have been sentenced to only
short terms of incarceration and many of the detainees face the possibility of
lengthy imprisonment if convicted.
Bell, 441 U.S. at 546 n.28 (internal citations omitted).

A panel of this court recently stated in dicta that "[p]enological interests are...
arguably not an appropriate guide for the pretrial detention of accused persons"
because penological interests relate to convicted persons. Benjamin v. Fraser,
264 F.3d 175, 187 n.10 (2d Cir. Sept. 5, 2001). Because we applied Turner to
the rights of a pretrial detainee who had been charged with a serious crime and
who was commingled with sentenced inmates in a state prison in Covino, we do
not rely solely on Shain's status as a pretrial detainee.

As noted previously, we accept for the sake of argument that NCCC did require
a judicial remand, although the evidence appears to establish that it did not.

We adopt Ellison's account rather than Denier's more expansive description

because the false arrest claim was dismissed on a motion for summary
judgment.
ROBERT A. KATZMANN, concurring:

46

I join in Judge Pooler's opinion in this challenging case. Unlike Judge Cabranes
in his thoughtful dissent, I believe it reaches the result required by the
precedent of this Circuit with respect to the standard to be applied to cavity
searches in cases such as this one. In short, Turner v. Safley, 482 U.S. 78, 89-90
(1987), and its progeny deal with prison regulations as they are applied to
individuals charged with or convicted of felonies, while Weber v. Dell, 804
F.2d 796 (2d Cir. 1986), Walsh v. Franco, 849 F.2d 66 (2d Cir. 1988), and
Wachtler v. County of Herkimer, 35 F.3d 77 (2d Cir. 1994), concern the
treatment of misdemeanor arrestees being held in jails. Because there has been
no explicit indication from the Supreme Court that it would apply its
"reasonably related to penological interests" standard (rather than a "reasonable
suspicion" standard) to cases involving misdemeanor arrestees being held in
jail, I believe we are compelled to follow Circuit precedent, which distinguishes
between these two types of cases. As Wachtler was decided well after Turner,
it appears to me that this Circuit's approach to such cases is unchanged after
Turner. I write separately to emphasize that while this Circuit's choice to
distinguish for these purposes either between misdemeanors and felonies or
between jails and prisons is not necessarily persuasive to me - and in fact I am
not sure either is a distinction I would make if I were considering the question
in the first instance - I do think that these distinctions are required by our earlier
precedents. Because these precedents have not, in my view, been squarely
overruled, I believe we have no choice but to apply the "reasonable suspicion"
standard to the facts of this case.

47

Jose A. Cabranes, Circuit Judge, dissenting in part:

48

I respectfully dissent from the majority's decision to evaluate the

constitutionality of the cavity search at issue here under the "reasonable
suspicion" standard we developed in Weber v. Dell, 804 F.2d 796, 902 (2d Cir.
1986), rather than under the "reasonably related to legitimate penological
objectives" standard subsequently articulated by the Supreme Court in Turner
v. Safley, 482 U.S. 78, 89-90 (1987).

49

In reaching this decision, the majority subjects Nassau County to liability for
having an assertedly unconstitutional cavity-search policy, and subjects an
individual defendant to liability for implementing it. Moreover, the majority
remands the cause for a determination as to whether the District Court should
enjoin the Nassau County Correctional Center ("NCCC") from continuing to
conduct a cavity search of all people admitted to the facility.

50

The majority's decision is based on an artificial, untenable distinction between

"prisons" and "jails," and creates a Circuit split where there was none-a Circuit

split that seems to call out for eventual resolution by the Supreme Court. In my
view, the majority's decision finds no warrant in the Supreme Court's
jurisprudence and, indeed, substantially and unnecessarily limits the reach of
the leading Supreme Court cases in this area. In resolving the cavity-search
issue as it does, the majority also requires, by what the majority holds are the
dictates of the Constitution, that correctional facilities such as the NCCC be run
in a manner that defies common sense.
51

Accordingly, I dissent from the holding that the applicable standard to evaluate
the constitutionality of a cavity search in a jail is "reasonable suspicion" rather
than "reasonably related to a legitimate penological interest."1 I write briefly to
explain why.

52

As the majority notes, in Weber v. Dell, 804 F.2d 796 (2d Cir. 1986), we
developed a standard for assessing the constitutionality of cavity searches of
arrestees: The Constitution, we held, "precludes prison officials from
performing... cavity searches of arrestees charged with misdemeanors or other
minor offenses unless the officials have a reasonable suspicion that the arrestee
is concealing weapons or other contraband based on the crime charged, the
particular characteristics of the arrestee, and/or the circumstances of the arrest."
Id. at 802 (emphasis added). In Walsh v. Franco, 849 F.2d 66, 68-69 (2d Cir.
1988), and Wachtler v. Herkimer County, 35 F.3d 77, 81 (2d Cir. 1994), we
evaluated the constitutionality of cavity searches under Weber's "reasonable
suspicion" standard.

53

Nearly one year after our decision in Weber, the Supreme Court held that
"when a prison regulation impinges on inmates' constitutional rights, the
regulation is valid if it is reasonably related to legitimate penological interests."
Turner v. Safley, 482 U.S. 78, 89-90 (1987); see also Washington v. Harper,
494 U.S. 210, 224 (1990) (holding, inter alia, that "Turner applies to all
circumstances in which the needs of prison administration implicate
constitutional rights"); O'Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987)
(applying Turner and noting that "legitimate penological interests" include
"deterrence of crime, rehabilitation of prisoners, and institutional security"). In
Covino v. Patrissi, 967 F.2d 73 (2d Cir. 1992), we evaluated a cavity search
under Turner's "reasonably related" standard, and held that an arrestee may, in
some circumstances, be subjected to a cavity search "in the absence of a[n]...
individualized suspicion justifying the search," id. at 77-78-that is, even when
there is no "reasonable suspicion" of the kind required by Weber.

54

The question here is this: Should we assess the constitutionality of the NCCC's
cavity search policy ("policy") under Weber's "reasonable suspicion" standard

(a standard we set forth) or under Turner's "reasonably related" standard (a

standard the Supreme Court set forth)?
55

The answer to this question, thus posed, seems obvious enough-Turner, as a

case decided by the Supreme Court, must prevail. But resolving the question is
complicated by the fact that, regrettably, our cases decided after Turner pull in
different directions: Walsh and Wachtler suggest that Weber's "reasonable
suspicion" standard is controlling here, and Covino suggests that Turner's
"reasonably related" standard is governing.

56

The majority sidesteps this difficulty by holding that the "reasonably related"
standard is controlling where the relevant correctional facility is a "prison" (as
was assertedly the case in Covino), and that we must apply the "reasonable
suspicion" standard that we enunciated in Weber and its progeny where the
relevant correctional facility is a "jail" (as was assertedly the case in Weber,
Walsh, Wachtler, and, as the majority states, here). See Majority Opinion, ante,
at 66.

57

At first glance, ordering our cases in this manner is appealing: As a general

matter, it is the duty of panels reasonably to harmonize our precedents, see, e.g.,
Rocket Jewelry Box, Inc. v. Noble Gift Packaging, Inc., 157 F.3d 174, 176 (2d
Cir. 1998) ("[E]very panel of this court is bound by the decisions of earlier
panels...."), and the jail/prison distinction renders our caselaw internally
coherent by shoe-horning all-but-contradictory lines of precedent into
apparently distinct doctrinal categories.

58

However, the distinction between these categories is illusory, and I believe that
organizing our caselaw along the jail/prison axis is error.

59

As an initial matter, the distinction drawn by the majority between jails and
prisons is wholly unprecedented. The majority points to no cases that
differentiate between jails and prisons in the manner that it suggests, and our
sister Circuits routinely apply Turner's "reasonably related" standard to cases
involving jails.2

60

They do so with good reason: There is no basis in the Supreme Court's

jurisprudence for limiting Turner's "reasonably related" standard to cases
involving correctional institutions denominated "prisons." It is true, of course,
that the "reasonably related" standard nominally applies to "prison regulations."
See Turner, 482 U.S. at 89 (emphasis added). But the term "prison" is most
frequently used generically to describe any government facility-including a

"jail"-that function primarily as a place for the confinement of people involved

in the criminal justice system. See Black's Law Dictionary 1194 (6th ed. 1990)
("prison," first definition: "A public building or other place for the confinement
of persons, whether as a punishment imposed by the law or otherwise in the
course of the administration of justice") (emphasis added).3
61

There is no indication that the Turner Court intended to depart from this wellsettled, non-technical meaning of the word "prison."

62

First, Turner's "reasonably related" standard, which, as noted, concerns "prison

regulations," was itself based on four cases that concerned "prisoners' rights,"
see Turner, 482 U.S. at 86, 107 S. Ct. 2254: (1) Pell v. Procunier, 417 U.S. 817
(1974), (2) Jones v. North Carolina Prisoners' Union, 433 U.S. 119 (1977), (3)
Bell v. Wolfish, 441 U.S. 520 (1979), and (4) Block v. Rutherford, 468 U.S.
576 (1984). See Turner, 482 U.S. at 86-89 (discussing these cases). Of these
"prisoner's rights" cases, one case-Procunier-concerned what the majority
would call a "prison"; but another-Jones-involved both a prison and a jail, see
Jones, 433 U.S. at 122, and two of them-Block and Bell-exclusively concerned
jails, see Block, 468 U.S. at 578-79, Bell, 441 U.S. at 524. This suggests that
there is no distinction of constitutional magnitude between jails and prisons. If
there were such a distinction, the Turner Court would not have elided the
difference between "jail" cases and "prison" case by characterizing certain "jail"
cases (Block, Bell, and perhaps Jones) as "prisoners' rights" case. See Turner,
482 U.S. at 86. And similarly, the Turner Court would not have-indeed, could
not have-derived from "jails" cases (Block, Bell, and perhaps Jones) a standard
that does not apply to them, but that applies only to what the majority would
term a "prison" case.

63

Second, it is clear from Turner's rationale that the "reasonably related" standard
was not intended to apply only to those institutions encompassed in the
majority's narrow definition of "prison." The Turner Court adopted the
relatively deferential "reasonably related" standard as a means of
accommodating two distinct imperatives-first, protecting individual rights; and
second, recognizing that "the problems of prisons in America are complex and
intractable, and... are not readily susceptible of resolution by [judicial] decree."
Id. at 85, 107 S. Ct. 2254. As the Turner Court explained:

64

Running a prison is an inordinately difficult undertaking that requires expertise,

planning, and the commitment of resources, all of which are peculiarly within
the province of the legislative and executive branches of government. Prison
administration is, moreover, a task that has been committed to the responsibility
of those branches, and separation of powers concerns counsel a policy of

judicial restraint. Where a state penal system is involved, federal courts have...
additional reason to accord deference to the appropriate prison authorities.
65

Id. at 84-85, 107 S. Ct. 2254. In other words, a basic purpose of the "reasonably
related" standard is to prevent the federal courts from becoming overly
involved in the administration of corrections-related facilities that have chronic
problems that the judiciary is, comparatively speaking, poorly-positioned to
solve.4

66

But facilities that fit this description are as likely to be denominated "jails" as
"prisons." The NCCC is an apt example. It operates 365 days a year and 24
hours a day. When Mr. Shain was subjected to a cavity search there, the NCCC
employed 950 corrections officers and housed, on an average day, 1,800
inmates. Every year, more than 14,000 people are introduced into the NCCC
population. Of those who are housed at the NCCC, some have been sentenced
to terms of one year or less; some have been sentenced to longer terms of
imprisonment and are awaiting transfer to state-run correctional facilities in
upstate New York; and others have been charged with a range of crimes,
including violent felonies.

67

In short, the NCCC is a large, complex facility. Running it undoubtedly

"requires expertise, planning, and the commitment of resources, all of which
are peculiarly within the province of the legislative and executive branches of
government," and it is therefore reasonable to assume that its problems,
whatever they might be, are not "readily susceptible of resolution by [judicial]
decree." Turner, 482 U.S. at 84-85.

68

Accordingly, the rationale for the "reasonably related" standard applies as

forcefully to the NCCC as it would to a facility formally called a prison, and we
must therefore assume that when the Turner Court developed the "reasonably
related" standard, it intended for it to apply to facilities like the NCCC. But by
introducing an artificial distinction between prisons and jails, the majority
substantially limits Turner's reach-and removes institutions like the NCCC
from the ambit of the "reasonably related" standard.5

69

The majority justifies its formalistic cabining of Turner-and its concomitant

holding that it is Weber's "reasonable suspicion" standard that applies in jailsby reference to the "substantial difference between jail and prison populations."
Majority Opinion, ante, at 65-66. However, factors such as the composition of a
facility's population-or, indeed, the composition of the portion of a facility's
population subjected to a particular regulation-are fully amenable to analysis

under the Turner standard. See, e.g., Covino, 967 F.3d at 79 (stating that "the
nature of [the facility's] inmate population" supported the finding that there was
"a legitimate and rational connection between the challenged searches... and
[the facility's] security interests"); Michenfelder v. Summer, 860 F.2d 328, 33233 (9th Cir. 1988) (noting, while upholding visual body-cavity searches of
inmates housed in a facility's maximum security unit each time a prisoner
entered or left his cell, that "[t]he searches are conducted on convicted
prisoners in [the facility's] most restrictive unit" and "[e]levated security
precautions are justified for prisoners placed in maximum security settings... ").
Indeed, because Turner requires that the interest identified by the government
be "legitimate" and that there be a nexus between the restriction of a prisoner's
constitutional rights and the interest, see 482 U.S. at 89-90, facility regulations
justified by penological goals applicable only to persons convicted of crimessuch as punishment-could not be imposed on pretrial detainees. In this case,
however, the NCCC's asserted interest is facility security, which is a legitimate
concern regardless of the status of the facility's population. See Mauro v.
Arpaio, 188 F.3d 1054, 1059 & n.1 (9th Cir. 1999) (en banc).6
70

Another difficulty with the majority's holding is that it interprets the

Constitution as requiring large, complex facilities such as the NCCC to be run
less intelligently-and less safely-than ought to be the case. In deciding whether
and under what circumstances to permit cavity searches, responsible
correctional officials would presumably balance the rights of prisoners (which
are impinged on by cavity searches) and the safety of staff and other prisoners
(which is enhanced-at least somewhat-by cavity searches). In determining how
this balance should be struck in the context of any particular facility, common
sense dictates that a number of factors are relevant, including whether the
facility is overcrowded; whether it is equipped with drug- sniffing dogs and
metal detectors; whether it has been infiltrated by gangs; and whether prisoners
have attempted previously to secrete contraband in a manner detectable only by
cavity searches. Because the "reasonably related" standard envisions a flexible,
multi-factor inquiry, see Turner, 482 U.S. at 89-91, it would permit
administrators to craft cavity search policies with an eye to each of these
concerns.

71

By contrast, the "reasonable suspicion" standard requires prison administrators

to focus on only one set of variables-those related to reasonable suspicion itself.
Accordingly, the majority's application of the "reasonable suspicion" standard
to jails means that administrators who manage facilities such as the NCCC will
not be allowed to take into account any of the factors noted above. That makes
no sense and, as I have argued, is not required by the Constitution.

72

***

73

The majority holds that we must assess the constitutionality of the cavity search
at issue here under Weber's "reasonable suspicion" standard, not Turner's
"reasonably related" standard. For the reasons stated above, I dissent.

NOTES:
1

I agree with the majority as to its disposition of plaintiff- appellee-crossappellant Ray E. Shain's false arrest, malicious prosecution, abuse of process,
and excessive force claims, as well as with its disposition of his challenge to the
constitutionality of the Family Court Act 155(2). As to these issues, I concur
in the reasoning and result of the majority opinion.

See, e.g., Mauro v. Arpaio, 188 F.3d 1054, 1058-63 (9th Cir. 1999); Friend v.
Kolodzieczak, 923 F.2d 126, 127-28 (9th Cir. 1991); Siddiqi v. Leak, 880 F.2d
904, 908-10 (7th Cir. 1989); see also, e.g., Rogers v. Arbisi, No. 93 C 20237,
1996 WL 89346, at *5 (N.D. Ill. Feb. 28, 1996); Muhammad v. City of N.Y.
Dept. of Corrections, 904 F. Supp. 161, 197 (S.D.N.Y. 1995); Shaheed v.
Winston, 885 F. Supp. 861, 867-68 (E.D. Va 1995), aff'd on other grounds 161
F.3d 3 (4th Cir. 1998) (table); Pippins v. Adams County Jail, 851 F. Supp.
1228, 1234 (C.D. Ill. 1994).

To be sure, "prison" is sometimes used in a manner that suggests a contrast with

a "jail." See Black's Law Dictionary 1194 (6th ed. 1990) ("prison," third
definition: "institutions... distinguished from... jails"). But that is relatively rare.
It is more common to treat "jail" and "prison"-both of which are non-technical
terms to everyone other than students of penology-as virtual synonyms. See id.
(defining "prison" in a manner that encompasses "jail"); id. at 834 ("jail," first
non- "obsolete" definition: "prison"). Consider, for example, Weber. In the
majority's typology, Weber concerns jails, not prisons. But we held there that
"prison officials" may not take certain actions. Weber, 804 F.2d at 802
(emphasis added); see also id. at 804 (describing the need "to defer to the
judgment of prison officials") (emphasis added). Any possible distinction
between prisons and local jails apparently did not make an impression on the
Weber panel, and, as the definitions quoted above suggest, the Weber panel's
conflation of jail and prison is not merely a matter of linguistic imprecision.
Rather, "jail" and "prison" are all-but interchangeable.
This said, to the extent that there is a sharp, commonly agreed-upon distinction
between the terms, it is that prisons hold people convicted of crimes, and jails

hold people merely charged with crimes. See Black's Law Dictionary at 834
(defining "jail"). But here, prisons and jails cannot be differentiated on this
basis. The majority distinguishes Covino, in which we applied Turner's
"reasonably related" standard, as a case that involved a prison, not a jail. See
Majority Opinion, ante, at 66. But the plaintiff in that case had not been
convicted of a crime when he was searched-he had merely been charged with a
crime. See Covino, 967 F.2d at 78 n.4. Accordingly, if "prison" means a
correctional facility that houses those convicted of crimes, as the majority
suggests, Covino would have been a "jail" case, not a "prison" case, and we
would have applied Weber's "reasonable suspicion" standard. But we did not do
so; instead, we applied Turner's "reasonably related" standard. See Covino, 967
F.2d at 77-78; accord United States v. El-Hage, 213 F.3d 74, 81-82 (2d Cir.
2000) (applying the Turner standard in a "jail" setting-that is, to assess a pretrial detainee's constitutional claim).
4

See Washington, 494 U.S. at 223-24 (stating that adoption of the "reasonably
related" standard in Turner "was based upon the need to reconcile our
longstanding adherence to the principle that inmates retain at least some
constitutional rights despite incarceration with the recognition that prison
authorities are best equipped to make difficult decisions regarding prison
administration"); cf. Turner, 482 U.S. at 89 ("Subjecting the day-to-day
judgments of prison officials to an inflexible strict scrutiny analysis would
seriously hamper their ability to anticipate security problems and to adopt
innovative solutions to the intractable problems of prison administration. The
rule would also distort the decisionmaking process, for every administrative
judgment would be subject to the possibility that some court somewhere would
conclude that it had a less restrictive way of solving the problem at hand.
Courts inevitably would become the primary arbiters of what constitutes the
best solution to every administrative problem, thereby unnecessarily
perpetuat[ing] the involvement of the federal courts in affairs of prison
administration.") (internal citations and quotation marks omitted).

As noted, by distinguishing our cases along a jail/prison axis, the majority

hopes to reconcile our precedents with one another. See ante at 66. In this case,
however, we need not attempt to do so. As a matter of logic, our application of
Weber's "reasonable suspicion" standard in Walsh and Wachtler necessarily
rested on a sub silentio holding that our decision in Weber survived the
Supreme Court's subsequent decision in Turner. (I characterize this holding as
sub silentio because neither Walsh nor Wachtler mention Turner, and there is
no indication that the parties brought Turner to the attention of the Walsh or
Wachtler panels.) But sub silentio holdings do not bind subsequent panels. See,
e.g., Goldberger v. Integrated Res., Inc., 209 F.3d 43, 49 (2d Cir. 2000); Getty
Petroleum Corp. v. Bartco Petroleum Corp., 858 F.2d 103, 113 (2d Cir. 1988).

See generally Webster v. Fall, 266 U.S. 507, 511 (1925) ("Questions which
merely lurk in the record, neither brought to the attention of the court nor ruled
upon, are not to be considered as having been so decided as to constitute
precedents."). Moreover, when a panel bases a decision entirely on Circuit
precedent that has been implicitly overruled by the Supreme Court-as I believe
Weber was by Turner-panels of our Court need not hew to the panel decision.
See, e.g., Zervos v. Verizon, 252 F.3d 163, 167 (2d Cir. 2001) (collecting
cases).
6

In expressing "doubt" in dicta over whether the use in Turner of the phrase
"penological interests" limits its applicability to "persons convicted of crimes,"
the panel in Benjamin v. Fraser, 264 F.3d 175 (2d Cir. Sept. 5, 2001), cited
Judge Kleinfeld's dissent from the en banc decision in Mauro. 264 F.3d at 187.
Judge Kleinfeld, in turn, relied on a narrow definition of "penological" as
"relating to the 'theory and practice of prison management and criminal
rehabilitation'" and meaning, "roughly," "penalty or punishment." 188 F.3d at
1068. Judge Kleinfeld found support for his belief that the Supreme Court used
"penological" in this narrow sense in its recognition in Turner that rehabilitation
is a legitimate penological interest. Id. at 1068 & n.8 (citing Turner, 482 U.S. at
97-99). Judge Kleinfeld's analysis, however, fails to account for the reliance in
Turner of facility security as the "penological interest" justifying a prohibition
on inmate correspondence between institutions, see Turner, 482 U.S. at 91-92,
which reliance is inconsistent with his theory that "penological interests" are
interests applicable only to prisoners convicted of crimes-after all, facilities
housing prisoners may have legitimate security concerns regardless of whether
those prisoners have yet been convicted of a crime. Indeed, the majority
opinion in Mauro, in which the Ninth Circuit distinguished between penological
interests that may be legitimately applied to pretrial detainees from those that
may be legitimately applied only to those convicted of crimes, see 188 F.3d at
1059 & n.1, demonstrates the appropriate use of the Turner multi-factor
framework to a regulation affecting pretrial detainees. See 188 F.3d at 1058-63.