Supreme Court Update: Florence v. Board of Chosen Freeholders of the County of Burlington (10-945) and Rehberg v. Paulk (10-788)

April 4, 2012 Supreme Court Update

Greetings, Court fans!

Today we bring you a double-header with decisions on arrestee searches, Florence v. Board of Chosen Freeholders of the County of Burlington (10-945), and immunity from § 1983 suits for grand jury witnesses, Rehberg v. Paulk (10-788).

If the unlikely event that you've been thinking about committing a crime, even a very minor one, Florence v. Board of Chosen Freeholders of the County of Burlington (10-945) will make you think again. In a 5-4 split (down the usual dividing line), the Court found that jail administrators could strip search all arrestees who were committed to the general population of a jail, regardless of the nature of the crimes the arrestees allegedly committed.

In 1998, Florence was arrested for fleeing police, pleaded guilty, and was sentenced to pay a monthly fine. When he fell behind on his payments in 2003 and failed to appear for an enforcement hearing, a bench warrant was issued for his arrest. He paid the outstanding fine within a week, but for some reason, the warrant improperly remained in the statewide database. Two years later, Florence was pulled-over while driving. Because the old warrant remained in the system, the officer arrested him. Florence was detained in one detention center for six days, then transferred to another detention center (all before being taken to a magistrate), and finally released when the charges were dismissed. At each detention facility, Florence was required to take a shower and to use a delousing agent (under the supervision of jail personnel) and then was subjected to a "close visual inspection" while naked – including an inspection of all parts of his body, including his ears and mouth and "other body openings." He was required to lift his genitals, and to squat and cough. He was not touched during the inspection. After Florence was released, he sued for violation of his Fourth Amendment right to be free of unreasonable searches and seizures. He argued that a person arrested for a minor offense could not be required to remove his clothing and expose his most private areas to close visual inspection unless officials had a reasonable suspicion that he was concealing a weapon, drugs, or other contraband. The District Court granted summary judgment, finding that a policy of strip searching nonindictable offenders without reasonable suspicion violated the Forth Amendment. The Third Circuit reversed, holding that the procedures employed reasonably balanced jail security and inmate privacy.

Justice Kennedy wrote for the Court, affirming the Third Circuit. A regulation that impinges upon inmates' constitutional rights must nevertheless be upheld if it is "reasonably related to legitimate penological interests." And deference must be given to jail officials unless there is "‘substantial evidence' demonstrating that their response to the situation is exaggerated." Here, the Court found that the uniform use of delousing showers and strip searches for individuals entering the general jail population was reasonably related to several legitimate penological interests: (1) reducing the spread of lice, disease, and infections and ensuring adequate treatment of inmates whose clothing might obscure evidence of injury; (2) identifying potential gang members through tattoos and body markings; and (3) detecting and deterring the possession of contraband under clothing and within body openings. Further, jail officials could reasonably conclude that the shower/strip search procedures must be used in all instances where an individual is included in the general population because it may be difficult to distinguish, for example, between offenders who are likely to carry contraband and those who aren't based merely on the offense charged. And any predictable weakness in the security system will be quickly exploited. However, Justice Kennedy emphasized in Part IV (which was not joined by Justice Thomas), that the Court's decision did not reach situations in which a detainee is held without assignment to a general jail population and without substantial contact with other detainees, as such a situation might diminish the need for certain aspects of the searches conducted here. The Court also noted that Florence's searches did not involve touching and acknowledged that "[t]here also may be legitimate concerns about the invasiveness of searches that involve the touching of detainees."

While Chief Justice Roberts and Justice Alito joined the Court's opinion in full, they wrote separate concurrences in attempts to confine its reach. The Chief noted that "it is important for me that the Court does not foreclose the possibility of an exception to the rule it announces." For example, it was critical to the Chief that Florence was not detained for a "minor traffic offense but instead pursuant to a warrant for his arrest, and that there was apparently no alternative . . . to holding him in the general jail population." Justice Alito wrote to emphasize that the Court's opinion did not deal with situations where an arrestee's detention for a minor offense had not been reviewed by a judicial officer and where the arrestee could be held in facilities separate from the general population. "For these persons, admission to the general jail population, with the concomitant humiliation of a strip search, may not be reasonable, particularly if an alternative procedure is feasible." (Interestingly, this could mean that Justice Alito (and even the Chief) might swing with the dissenters in an appropriate case brought by an individual arrested for a minor offense who was placed in the general population and strip searched notwithstanding that a segregated holding option was available.)

Justice Breyer, joined by the liberal wing of the Court, dissented. After describing the inspection procedures in some detail, the dissenters concluded that "such a search of an individual arrested for a minor offense that does not involve drugs or violence – say a traffic offense, a regulatory offense, an essentially civil matter, or any other misdemeanor – is an ‘unreasonable search' forbidden by the Fourth Amendment, unless prison authorities have reasonable suspicion to believe that the individual possesses drugs or other contraband." The dissenters found no statistical or other data to back up the argument that a strip search would protect the penological interests at stake significantly better than would the dissenters' approach. Indeed, the Federal Bureau of Prisons and many states apparently take just such an approach without any demonstrated problems.

In Rehberg v. Paulk (10-788), the Court took up the question of whether a grand jury witness is entitled to absolute immunity from suit under 42 U.S.C. § 1983. James Paulk, the chief investigator in the district attorney's office covering Albany, Georgia, testified three times before different grand juries considering allegations against Charles Rehberg. Each time, the grand jury issued an indictment, and each time the indictment was eventually dismissed. Rehberg then sued Paulk under § 1983, alleging that the investigator conspired to present and did present false grand jury testimony. Paulk moved to dismiss, claiming he was entitled to absolute immunity. The district court denied his motion, but the Eleventh Circuit reversed, reasoning that allowing suits for false grand jury testimony "would . . . emasculate the confidential nature of grand jury testimony and eviscerate the traditional absolute immunity for witness testimony in judicial proceedings." The Supreme Court took up the case to resolve a circuit split regarding immunity for witnesses in grand jury proceedings.

Justice Alito wrote for a unanimous Court. The Court anchored its analysis in the history of § 1983 and its predecessor, whose authors, in 1871, did not intend any radical departure from common law tort jurisprudence and the immunities that had evolved within it. The Court takes a "functional approach" to addressing immunities, consulting common law to identify governmental functions historically deemed so important and vulnerable to litigation that immunity was necessary to ensure their performance "‘with independence and without fear of consequences.'" At common law, trial witnesses enjoyed absolute immunity for statements made during the course of a judicial proceeding. In Briscoe. v. LaHue (1983), the Court expanded absolute immunity for trial witnesses to encompass any claim based on the witness's testimony. Here, the Court determined that the factors that justified absolute immunity for trial witnesses applied equally to grand jury witnesses like Paulk. "In both contexts, a witness' fear of retaliatory litigation may deprive the tribunal of critical evidence. And in neither context is the deterrent of potential civil liability needed to prevent perjurious testimony." Nor did the Court find any reason to distinguish between law enforcement witnesses like Paulk and lay witnesses. Thus, grand jury witnesses will henceforth enjoy absolute immunity from any § 1983 claims based on their testimony and, the Court explained, "this rule may not be circumvented by claiming that a grand jury witness conspired to present false testimony or by using evidence of the witness' testimony to support any other § 1983 claim concerning the initiation or maintenance of a prosecution." This clarification was necessary to ensure that a civil plaintiff will not "‘simply reframe a claim to attack the preparation instead of the absolutely immune actions themselves.'"

We will be back soon to serve up the next batch.

Kim & Jenny

From the Appellate and Complex Legal Issues Practice Group at Wiggin and Dana. For more information, contact Kim Rinehart or any other member of the Practice Group at 203-498-4400