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Walsh v. Franco

decided: June 6, 1988.

DAVID L. WALSH, PLAINTIFF-APPELLEE,
v.
JOHN L. FRANCO, JR.; CITY OF BURLINGTON; POLICE CHIEF WILLIAM BURKE; A. JAMES WALTON, JR.; RICHARD TURNER; CITY OF BURLINGTON POLICE DEPARTMENT; STATE OF VERMONT DEPARTMENT OF CORRECTIONS, DEFENDANTS, A. JAMES WALTON, JR., RICHARD TURNER, AND STATE OF VERMONT DEPARTMENT OF CORRECTIONS, DEFENDANTS-APPELLANTS



Appeal from so much of an order of the United States District Court for the District of Vermont, Franklin S. Billings, Jr., Judge, as denied prison officials' motion for summary judgment on ground of qualified immunity from liability on claims under 42 U.S.C. § 1983 for strip search. Affirmed.

Lumbard, Oakes, and Kearse, Circuit Judges.

Author: Kearse

KEARSE, Circuit Judge:

Defendants A. James Walton, Jr., former Commissioner of the Vermont Department of Corrections, Richard A. Turner, Superintendent of the Chittenden County Correctional Center ("Chittenden"), and the Vermont Department of Corrections appeal from so much of an order of the United States District Court for the District of Vermont, Franklin S. Billings, Jr., Judge, as denied their motion to dismiss claims against them by plaintiff David L. Walsh, brought under 42 U.S.C. § 1983 (1982), asserting that following his arrest in connection with unpaid parking tickets, Walsh was subjected to an unconstitutional strip search and body cavity inspection at Chittenden. Appellants moved for summary judgment dismissing these claims on the ground that they were entitled to qualified immunity from liability. The court denied the motion on the ground that at the time of the acts complained of, the law was clearly established that indiscriminate strip searches of persons arrested for misdemeanors, absent a reasonable suspicion that they conceal weapons or other contraband, violated the Fourth Amendment. On appeal, appellants contend principally that the court should have granted them summary judgment because it was objectively reasonable for them to believe that their blanket policy of strip-searching all arrestees was constitutional. We reject their contentions and affirm the order of the district court.

BACKGROUND

Most of the pertinent events do not appear to be in dispute. Walsh was part-owner of a restaurant located on a private road in Burlington, Vermont. Though he had obtained an amendment of the city's parking ordinances to allow him to park service vehicles on that road, his vehicles were often given parking tickets. Prior to February 1985, the city attorney routinely voided the tickets. Thereafter it was agreed that Walsh would contest the tickets in court.

Walsh continued to receive parking tickets; he did not pay them, and he soon was issued a citation for failure to pay six $5 tickets. He appeared at his March 28 arraignment and pleaded not guilty. Scheduled to reappear on April 22, he moved to reschedule his appearance for after April 30. The court rescheduled it to April 29, but because the notice of hearing was sent to the wrong address, Walsh did not appear on April 29. A bench warrant was therefore issued for his arrest.

City police officers executed the warrant on Sunday evening, May 5, 1985. Arriving at Walsh's home at about 9:45 p.m., they informed him that he was under arrest and allowed him time to tell his family and change his clothes. Walsh was acquiescent until he and the officers arrived at the police car and he was informed that he would have to be patted down and handcuffed. He became very upset at the prospect of being handcuffed and insisted that his wife be called out to witness the proceedings. When the officers handcuffed Walsh without summoning his wife, Walsh became agitated and refused to get into the car. A minor scuffle followed, but Walsh calmed down when his wife and guests emerged from the house and a backup police car arrived.

Because the Vermont courts are closed on weekends, Walsh was taken to Chittenden for processing. Still "visibly upset" at being handcuffed, Walsh was processed in accordance with Chittenden's "standard intake process," which included not only photographing and fingerprinting, but also a strip search and visual body cavity examination. Although he again became agitated and verbally abusive at the prospect of the strip search, Walsh submitted to the search. While he was being processed, his wife arrived with $100 for bail, and Walsh was released without having left the processing area. At his eventual jury trial on the scofflaw charges, Walsh was acquitted.

Walsh commenced the present action against appellants and certain city officials in 1986 in state court, from which it was removed to the district court. He asserted that appellants were responsible for the strip-search policy at Chittenden and that the application of that policy to him violated his rights under the Fourth Amendment. Appellants moved for summary judgment dismissing the complaint against them on the ground that they were entitled to qualified immunity. In an Opinion and Order dated November 24, 1987, the district court denied the motion, relying on Weber v. Dell, 804 F.2d 796 (2d Cir. 1986), cert. denied, 483 U.S. 1020, 107 S. Ct. 3263, 97 L. Ed. 2d 762 (1987), which held that a strip search of a person arrested on misdemeanor charges is unconstitutional unless there is some reasonable basis for suspicion that the arrestee is concealing weapons or other contraband. The court stated that there was no reasonable basis for such suspicion in the present case given (a) the nature of the charges, (b) the fact that at Chittenden, Walsh's abuse had been strictly verbal, with no threat of assault, and his verbal abuse had begun only when he was informed that he was to be strip-searched, and (c) the fact that the officials at Chittenden had not been informed of Walsh's prior resistance to being handcuffed. The court noted that Weber had ruled that the constitutional prohibition against indiscriminate strip searches of misdemeanor arrestees was clearly established in 1983, and concluded as follows:

Mr. Walsh was arrested and searched on May 5, 1985, nearly two years after the arrest and search of the plaintiff in Weber. What was clearly established in 1983, remains so in 1985 absent decisions to the contrary. Finding no such intervening decisions, it is evident that the state defendants violated established federal law. Thus, defendants are not entitled to qualified immunity for the actions herein alleged.

This appeal followed.

Discussion

On appeal, appellants argue principally that because Chittenden houses misdemeanor arrestees along with its general jail population, the district court should have granted them summary judgment on the ground that it was objectively reasonable for them to believe that their blanket policy of conducting strip searches of all misdemeanor arrestees was not unconstitutional. We ...


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