January 22, 1993 UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT

No. 91-1409 NORMAN R. HARRINGTON Plaintiff, Appellant v. DAVID O. COLE AND THE CITY OF OLD TOWN, ET AL.

Defendants, Appellees

On Petition For Rehearing

Before Breyer, Chief Judge Torruella, Circuit Judge and Woodlock*, District Judge

MEMORANDUM AND ORDER

Per Curiam - In their petition for rehearing, the defendant

Cole and the defendant City of Old Town assert that "this Court finessed the issue whether or not there was a 'clearly established' constitutional right which might have been violated. . ." Petition at 10. Rather than such a sleight of hand, the defendants contend, "this Court should itself have determined as a matter of law whether or not the actions of Defendant Cole, on the facts of this case, were objectively

reasonable thereby entitling Cole to summary judgment . . ." Id.

(emphasis in original)

*Of the District of Massachusetts, sitting by designation.

The problem with the defendants' argument is that the summary judgment motion record in this unusual case did not permit the District Court or this Court to make such a determination as a matter of law. The fountainhead of substantive due process jurisprudence as applied to unwanted manipulations of an individual's body, Rochin v. California, 342 U.S. 165 (1952), cautioned against making due process of law a matter of judicial caprice. The faculties of the Due Process Clause may be indefinite and vague, but the mode of their ascertainment is not self- willed. In each case "due process of law" requires an evaluation based on a disinterested inquiry pursued in the spirit of science, on a balanced order of facts exactly and fairly stated, on the detached consideration of conflicting claims, on a judgment not ad hoc and episodic but duly mindful of reconciling the needs both of continuity and of change in a progressive society. Id. at 172.

The Supreme Court has continued to rely in this area upon full record development as a predicate to judgment. That approach was illustrated in the fact-intensive analysis provided by the court in its most recent treatment of the "multifacted legal inquiry that the court must undertake" in addressing the problem of nonconsensual manipulations of an individual's body.

Winston v. Lee, 470 U.S. 753, 764 n. 8 (1985).

The task of the fact finder as to liability in this case upon remand will be two fold. First, it must be determined

whether the use of a plethysmograph in this setting would have been a constitutionally impermissible intrusion upon the plaintiff's bodily integrity. Second, if the answer to the first question is "Yes," the factfinder must also answer the question whether a public official in defendant Cole's position could reasonably have believed when he made submission to the plethysmograph a condition of reemployment that this would not be an impermissible intrusion on Harrington's bodily integrity. It is only if both questions are answered affirmatively that defendant Cole can be held liable. Those answers by the fact finder will ultimately, of course, be subject to judicial supervision on matters of law.

However, the record assembled on the motion for summary judgment was insufficient to provide an adequate basis for answering these questions at this point "as a matter of law." The jurisprudence of nonconsensual bodily manipulations has developed cautiously and only after full understanding of the underlying facts and relevant context. In the absence of such development here judgment on the underlying questions would be premature.

Accordingly, the petition for rehearing of defendants/appellees is hereby Denied