This, however, does not end the inquiry. The Court must next
examine whether Plaintiffs' constitutional rights were violated
by this policy.
Gonzalez alleges in her deposition that Defendants required
her to lower her pants (but not her underwear) and raise her
shirt (but not take off her bra). Defendants deny this and point
out that the policy only applied to detainees placed in the cell
block. Gonzalez was never charged with any crime. Defendants
submitted the cell block record for September 28, 1998, which
does not include Gonzalez's name, thereby indicating that she
was not placed in the cell block. In fact, Gonzalez admits she
was not placed in a cell. Gonzalez Dep., p. 46. Defendants also
submit the affidavits of Rebecca Gage and Diane Updyke, the City
police department matrons who were on duty on the night in
question, who state that Gonzalez was not placed in a cell or
detention area and she was not searched. Hesch also testified at
deposition that Gage likely was the matron on duty that night,
that he gave no instructions to Gage, and that there was no
reason for Gonzalez to be searched because she was not arrested.
Based on the above-discussed evidence, a fair-minded jury
could reasonably conclude that Gonzalez was not placed in a cell
and, therefore, not subjected to the City's policy.*fn5 The
Court, therefore, finds a genuine issue of triable fact
regarding whether Gonzalez was actually strip searched pursuant
to the unconstitutional policy.*fn6
Defendants argue that, assuming Gonzalez was searched, they
had reasonable suspicion to do so because there was an
association hit on her indicating that she may have had a
warrant on an illegal possession of a weapon charge and "there
was a reasonable basis to undertake that . . . search . . .
particularly where Ms. Gonzalez was left unattended in an
unsecure portion of the facility." Def. Mem. of Law, at 8.
Defendants' argument in this regard defies logic and, frankly,
is absurd. Considering the totality of the circumstances,
including the nature of the traffic stop, Gonzalez's compliance
and cooperation with Hesch during his investigation of this
matter, Gonzalez's agreement to accompany Hesch to the police
station to resolve the matter, and the facts that Hesch did not
see it fit to frisk or handcuff Gonzalez or to place her in a
holding cell,*fn7 it is disingenuous at best for Defendants
to now contend that they had a reasonable suspicion that she
might have possessed weapons or contraband.
Accordingly, the Court denies Plaintiffs motion and
Defendants' cross-motion for summary judgment as to Gonzalez.
Defendants admit that they strip searched Fyvie, who was
placed in a cell. Fyvie thus falls squarely within the City's
unconstitutional policy. Defendants again argue, however, that
they had reasonable suspicion to strip search Fyvie.
Fyvie was arrested for a violation of N.Y. PENAL LAW § 240.20,
disorderly conduct, for his alleged involvement in a fight.
Disorderly conduct is a violation under New York Law. N.Y. PENAL
LAW § 240.20. Fyvie did not offer much resistance, if any, to
Glasser, the arresting officer, and was placed in handcuffs.
Glasser frisked Fyvie but did not find anything that caused
concern. Glasser then brought Fyvie to the police station. At
the station, Fyvie was placed in a holding cell, without any
further searches. After considering such factors as the extent
of the crime, the charge, and the extent of Fyvie's cooperation,
Glasser Dep., p. 44., Glasser determined to issue Fyvie an
appearance ticket and release him without the need to post bail.
Id. at 34. Defendants released Fyvie. While in the process of
being released, Fyvie apparently made some comments to the
police regarding his arrest.*fn8 Defendants then rescinded
Fyvie's appearance ticketed and returned him to the holding cell
area. Fyvie was then strip searched, placed in the holding cell,
and later released on bail.
Based on these facts, and even assuming that Fyvie lunged at a
police officer, there is no evidence upon which a fair minded
jury could reasonably conclude that Defendants had reasonable
suspicion to believe that Fyvie was concealing weapons or other
contraband based on the crime charged, his particular
characteristics, and/or the circumstances of the arrest.
Weber, 804 F.2d at 802. While Fyvie may not have been the
model prisoner, there is nothing in the record tending to
suggest that he was in possession of contraband or weapons. The
charge against Fyvie, disorderly conduct, is not particularly
serious. Defendants point to no specifics of Fyvie's character
or his arrest that would have led them to reasonably believe
that he was in possession of weapons or contraband. This is
particularly so in light of the fact that Defendants did not
initially strip search Fyvie upon placing him in the holding
cell. Defendants did not strip search him until after they had
released him and decided to re-detain him. The fact that
Defendants chose "to rescind the
appearance ticket and take Fyvie back into custody" and make him
await bail brings him precisely within the parameters of the
unconstitutional strip search policy. Accordingly, Plaintiff is
entitled to summary judgment for the violations of his Fourth
Amendment rights caused by the City's unconstitutional strip
search policy. Issues of fact remain regarding any actual (as
opposed to nominal) damages.
For the foregoing reasons, Plaintiff Gonzalez's motion for
summary judgment is DENIED IN ITS ENTIRETY; Plaintiff Fyvie's
motion for summary judgment is GRANTED as to his claim against
the City of Schenectady that he was strip searched in violation
of his Fourth Amendment rights pursuant to an unconstitutional
strip search policy; and Defendants' motion for summary judgment
is DENIED IN ITS ENTIRETY.
IT IS SO ORDERED.