21-2998-cv Murphy v. Hughson et al.

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ___________________________

August Term, 2022

(Argued: March 14, 2023 Decided: September 21, 2023)

Docket No. 21-2998-cv ___________________________

CHRISTOPHER M. MURPHY, Plaintiff-Appellant,

v.

ANDREW C. HUGHSON, FRANK B. HILLMAN, DANIEL HOWE, GLENN GUNDERMAN, WILLIAM WASHBURN, JOSEPH SPENCER, CORRECTIONAL OFFICER DAVID STRONG, Defendants-Appellees,

COUNTY OF CHEMUNG, CITY OF ELMIRA, JOHN DOE, BEING INDIVIDUALS NUMBER 1- 5, EMPLOYED AS POLICE OFFICERS BY THE CITY OF ELMIRA, AND SHERIFFS BY THE COUNTY SHERIFF'S DEPARTMENT, WHOSE ACTUAL NAMES AND IDENTITIES ARE UNKNOWN AT THIS TIME, Defendants. ___________________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NEW YORK ___________________________

Before: LEVAL, CHIN, and PÉREZ, Circuit Judges.

___________________________ Appeal from a judgment of the United States District Court for the

Western District of New York (Frank P. Geraci, Jr., Judge) dismissing plaintiff-

appellant's amended complaint asserting that his civil rights were violated when

(1) he was subjected to a strip search upon his admission to the Chemung County

Jail as a misdemeanor arrestee, and (2) his release was delayed following the

posting of his bail. The district court granted summary judgment in favor of

defendants-appellees, holding that (1) the search was constitutional and the

searching officer was entitled to qualified immunity, and (2) the two-hour delay

in plaintiff-appellant's release did not rise to the level of a constitutional

violation.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED. ___________________________

CHRISTOPHER M. MURPHY, pro se, Bath, NY.

KAYLA A. ARIAS (Paul Andrew Sanders, on the brief), Barclay Damon LLP, Rochester, NY, for Defendants-Appellees. ___________________________

CHIN, Circuit Judge.

On June 5, 2014, plaintiff-appellant Christopher Murphy was sitting

on a bus when police officers boarded the bus, removed him, and arrested him

on a misdemeanor bench warrant. Murphy, then 67 years old, was a resident of

2 the City of Elmira (the "City"), in Chemung County (the "County"), New York.

Murphy was taken to the County Jail, where an officer subjected him to a visual

body cavity strip search. In addition, although Murphy's girlfriend promptly

posted his bail, his release was delayed about two hours.

Murphy sued the County, the City, and officers in the County

Sheriff's Department and City Police Department in the Western District of New

York pursuant to

, claiming that the strip search and the delay in

his release violated his constitutional rights. The district court (Geraci, J.)

dismissed the claims against the City and County at the outset of the case and

eventually granted summary judgment dismissing the claims against the

individual defendants as well, holding that (1) the search was constitutional and

the searching officer was entitled to qualified immunity, and (2) the two-hour

delay in his release did not rise to the level of a constitutional violation. Murphy

appeals the dismissal of the claims against the individual defendants.

We AFFIRM in part, VACATE in part, and REMAND for

further proceedings.

BACKGROUND

Because this appeal arises from a grant of summary judgment, we

recite the facts in the light most favorable to Murphy, the non-moving party, and

3 draw all reasonable inferences in his favor. See Guan v. City of New York,

(2d Cir. 2022).

I. The Facts

On the morning of June 5, 2014, Murphy was sitting on a bus at the

County Transportation Center in Elmira, New York. The bus was scheduled to

depart at 9 a.m., and Murphy was planning on taking it some twenty miles to

Sayre, Pennsylvania, where he had four medical appointments scheduled. Before

the bus could leave, however, police officers arrived and asked Murphy to

disembark. 1 Once the officers confirmed his identity, they handcuffed him,

placed him in a police car, and took him to the Elmira City Hall. 2 The officers

arrested Murphy pursuant to an "active bench warrant" issued by the Elmira City

Court charging him with the offense of maintaining a "structure unfit for human

occupancy" in violation of § 107.1.3 of the New York State Property Maintenance

Code, as well as "lesser offense(s)" of violating the Property Maintenance Code

1 The City Police Department had received an "anonymous tip" that Murphy was at the County Transportation Center. Doc. 67-5 at 1. References to "Doc." in this opinion are to materials filed on the district court's docket in Murphy v. County of Chemung et al., W.D.N.Y. No. 17-cv-6339. 2 At his deposition, Murphy testified that the officers took him to "the police station." Doc. 67-10 at 10. The Police Department and the Elmira City Court were both located at City Hall.

4 and the New York State Fire Code. Docs. 67-5 at 1; 67-1 at 1. These "[c]ode

violations" relating to Murphy's home had been charged in a "misdemeanor

complaint." Doc. 67-10 at 13.

At City Hall, the officers put a chain around Murphy's waist before

taking him to court. They placed him in a room outside the courtroom and, at

approximately 9:45 to 10 a.m., they brought him before Judge Steven W. Forrest

of the Elmira City Court. Murphy's girlfriend, Barbara Camilli, was sitting in the

courtroom. Judge Forrest set bail at $750 cash or a $1,500 surety bond, and

ordered that Murphy remain in custody until he made bail or until 1 p.m., when

he was to return to court. Murphy advised the court that he only had $400 in his

possession and asked the court to lower the bail to that amount. The court

denied the request and told Murphy that, unless he made bail, he would remain

in custody until 1 p.m. Hence, as confirmed by the Securing Order signed by the

court, Murphy was remanded to the custody of the County only until he

returned to court at 1 p.m. or until he posted bail, whichever came first.

See Doc. 67-1. While he was still in the courtroom, Murphy asked Camilli to go

to an ATM to get the balance of the money he needed to make bail.

Murphy was taken from the courtroom downstairs, back to "the

Elmira police station proper," and placed into a "small room." Doc. 67-11 at 16.

5 He was not fingerprinted, photographed, or processed at that point. After

waiting there for about five minutes, he heard Camilli, outside the room, saying,

"I'm here with his bail." Id. at 23-24. Although he could not see what was

happening, Murphy heard a male police officer tell Camilli that because Murphy

was in the Sheriff's custody, he could not be released from the Police

Department, but had to be taken to the County Jail, and that she had to go there

to bail him out.

After about another twenty minutes, Murphy was transported by

van from City Hall to the County Jail, a short ride away. He was put into a

holding cell, and after five or ten minutes an officer, Gunderman, fingerprinted

and photographed him. The fingerprinting took a while because Gunderman

was having trouble with the process. As Murphy was being fingerprinted,

Gunderman said to him "[y]our bail's sitting out there and we're going to cut you

loose" or "[w]e've got to cut you loose." Id. at 50. Gunderman also said that

Camilli -- who was attempting to post Murphy's bail and secure his release -- was

"making a real fuss, making a real commotion" about the delay. Id. at 51.

Murphy's impression was that he would be released "immediately." Id.

Murphy was then placed into a second holding cell, where a young

man was already being detained. After about an hour, and about an hour before

6 Murphy was due back in court, the Booking and Admissions Officer --

defendant-appellee William Washburn -- removed him from the cell. Washburn

brought Murphy to a small room and conducted a visual body cavity search,

requiring Murphy to disrobe, lift his scrotum, and spread his buttocks. 3

Washburn did not touch Murphy during the search, which lasted around

ten minutes. 4

After the search was completed, Washburn escorted Murphy out of

the search room. Washburn gestured to other officers with his thumb and

forefinger, which Murphy understood as mockingly connoting that he had a

small penis. Murphy was then brought back to the holding cell. After ten or

fifteen minutes, officers took him to a different area for questioning, where he

was processed; deputies asked him personal questions for another ten or fifteen

3 A "visual body cavity search" is the inspection of a person's body cavities without contact, such as by having the person manipulate his anatomy, bend over, or squat and cough. It is more intrusive than a "strip search," which requires a person to remove his clothes for a more cursory inspection, but less intrusive than a "manual body cavity search," which entails physical inspection of body cavities. Gonzalez v. City of Schenectady,

(2d Cir. 2013). Because the distinction between these categories is not here material to our decision, we sometimes refer to the search as simply a "strip search," following the language used in the discovery materials and by the district court. 4 As we discuss below, Washburn denies any involvement in the strip search. In reviewing the district court's grant of summary judgment, however, we view the disputed facts in the light most favorable to Murphy, who testified at his deposition that Washburn conducted the search.

7 minutes, with one or two of the deputies typing into a computer. During the

questioning, Murphy repeatedly asked when he would be released, noting that

his bail had been posted. Murphy received no response, except from one deputy

who said "Well, we've got to take you to court at 1:00." Doc. 67-11 at 68.

At least two or three times, in the presence of other deputies,

Gunderman said "[t]his guy's bail's out there. We've got to cut him loose." Id. at

62. Washburn responded: "No. We're not done with him yet. He's not going

anywhere. He's going to sit in my jail for a while." Id. at 61. Washburn made

comments to this effect both before and after the strip search.

After the questioning was completed, Murphy was returned to the

holding cell. Shortly thereafter, he was released, without ever entering the jail's

general population. At that point, it was close to 1:00, and so Murphy,

accompanied by Camilli, walked directly over to court to appear before

Judge Forrest.

At the time, strip searches in the County were governed by rules set

forth in a policy numbered C-110 (the "Policy"), which bore the subject line

"Admitting of Inmates into the Facility" and was produced in discovery. The

Policy provides, inter alia, that "only those inmates that present a reasonable

suspicion for being strip-searched will be strip-searched. All other new

8 admissions that do not meet these criteria will be pat searched only." Doc. 66-9

at 2. The Policy also requires that, if a strip search is conducted, "a report will be

made" setting forth (1) the reason(s) for the search; (2) the search's time, date, and

location; (3) the supervisor or officer-in-charge who authorized the search; and

(4) the officer who conducted the search. Id. at 2-3.

The strip search of Murphy was reported on a form, also produced

during discovery, entitled "Strip Search Justification Sheet" (the "Justification

Sheet"). It notes the date and time of the search (June 5, 2014, at noon) and lists

Washburn as the "Search Officer." Doc. 66-8 at 2. In the space reserved for the

"[e]xplanation of the grounds or reasons for conducting a strip search," the form

states only "per Post 1." Id. The form does not name any supervisor or officer

who authorized the search; rather, the fields for "finding/result of search," the

"Watch Commander's Signature," badge number, date and time, and an

additional space for "[c]omments" are all blank. Id.

II. The Proceedings Below

Murphy initiated this lawsuit on June 1, 2017. See Doc. 1. In his

amended complaint, Murphy alleges that the individual defendants -- Washburn,

other County employees, and several Elmira police officers -- violated his federal

constitutional rights by subjecting him to an unjustified strip search and delaying

9 his release after Camilli posted his bail. See generally Doc. 7. A longtime resident

of Elmira, Murphy contends he was targeted for harassment because of his

contentious relationship with the City and County, which included prior

legal disputes.

In his deposition, Murphy identified Washburn as the officer who

conducted the strip search. Although Washburn was not deposed, during

discovery, he submitted an affidavit stating that he had neither conducted the

strip search nor directed that it be conducted. Rather, he identified himself as the

"Booking/Admissions Officer," meaning he had "merely recorded that the strip

search took place as part of the booking process." Doc. 66-7 ¶ 15. According to

Washburn, the notation "per Post 1" on the Justification Sheet meant that some

supervisory officer -- he did not identify whom -- had authorized the search.

Id. ¶ 16. Washburn contended that the strip search "was necessarily based on

reasonable suspicion" because the Policy required it to be; moreover, Washburn

averred, neither he nor any other officer "directed to perform the search[] would

have had the discretion to disobey the order." Id. ¶¶ 17-18. On this basis,

Washburn argued, even assuming "for purposes of this motion only" that he had

conducted the search, he "would have lacked discretion as to whether or not to

10 perform" it because it "would have occurred solely based upon a direct order

from a superior pursuant to Chemung County Jail policy." Id. ¶ 19.

Washburn's affidavit also addressed the alleged delay in releasing

Murphy. According to Washburn, detainees cannot be released until the booking

process is completed because the County's computer system will not accept bail

payments until all charges have been entered near the end of the

booking process.

The district court granted summary judgment to defendants.

Murphy v. Hughson, No. 17-cv-6339 (FPG),

, at *1 (W.D.N.Y.

Nov. 9, 2021). After ruling that several of the named County defendants were

not personally involved and thus could not be liable under § 1983, see id. at *2-3,

the court addressed Murphy's delay and strip-search claims, see id. at *3-5.

As to the delay in his release, the court determined that the City

defendants did not violate Murphy's constitutional rights and were, in any case,

entitled to qualified immunity because under New York Criminal Procedure Law

§ 520.15, the court and County, not the City, are responsible for accepting bail.

Id. at *5. The court held that the County defendants were also entitled to

summary judgment: They had not violated Murphy's constitutional rights

11 because the delay of approximately two hours while Murphy was being

processed did not shock the conscience. Id. at *2-4.

Finally, the district court held that the strip search did not violate

Murphy's Fourth Amendment right to be free from unreasonable searches and

seizures. Although the Justification Sheet did not indicate what circumstances

justified strip searching Murphy, the district court reasoned that, under Florence

v. Board of Chosen Freeholders of Burlington County,

(2012), no

reasonable suspicion was required. Id. at *4. Rather, the court concluded,

Florence compelled deference to Washburn's conduct absent "substantial

evidence" of an "exaggerated" response, which Murphy had not offered.

Id. (quoting Florence,

). Moreover, the district court determined

that Washburn would, regardless, be entitled to qualified immunity because

"there is no question that an officer of reasonable competence would have

thought that conducting a strip search of a new inmate at the direction of a

superior was constitutional."

at *5 (citing Vasquez v. Maloney,

(2d Cir. 2021)). In doing so, the district court apparently concluded that if

Washburn conducted the search, he would have done so at the direction of a

superior officer.

12 Judgment was entered accordingly, and this appeal followed. 5

DISCUSSION

We review a grant of summary judgment de novo, viewing the

evidence in the light most favorable to the nonmoving party to determine

whether genuine issues of material fact preclude judgment as a matter of law.

Trans Sport, Inc. v. Starter Sportswear, Inc.,

(2d Cir. 1992); see Fed.

R. Civ. P. 56(a). A genuine issue of material fact exists if the record, and

appropriate inferences drawn from it, would permit a reasonable jury to return a

verdict for the nonmoving party. Williams v. Utica Coll. of Syracuse Univ.,

(2d Cir. 2006).

The district court premised its decision in part on qualified

immunity. Where properly asserted, qualified immunity bars claims for

5 Murphy has not appealed the district court's grant of summary judgment in favor of defendants-appellees Hughson and Hillman. He does challenge the district court's denial of his motion for further discovery (filed after defendants had moved for summary judgment), but we perceive no abuse of discretion in the challenged ruling. See L.S. v. Webloyalty.com, Inc.,

(2d Cir. 2020) ("We review the district court's decision to forgo further discovery for abuse of discretion."). We also agree with the district court that summary judgment was properly granted to defendants-appellees Howe, Gunderman, Spencer, and Strong because, on this record, there is no genuine dispute of material fact as to their lack of personal involvement in the relevant misconduct. See Wright v. Smith,

(2d Cir. 1994) (requiring personal involvement in the alleged constitutional deprivation for an award of damages under § 1983). We therefore affirm these aspects of the district court's judgment.

13 violations of constitutional rights unless "(1) the official violated a statutory or

constitutional right, and (2) that right was clearly established at the time of the

challenged conduct." Matzell v. Annucci,

(2d Cir. 2023). "A right

is clearly established" if "every reasonable official would have understood that

what he is doing violates that right" and existing precedent places the question

"beyond debate." Rivas-Villegas v. Cortesluna,

(2021) (per curiam)

(internal quotation marks omitted) (first quoting Mullenix v. Luna,

(2015) (per curiam); and then quoting White v. Pauly,

(2017) (per

curiam)). Each defendant bears the burden of establishing that he is entitled to

qualified immunity. See Vincent v. Yelich,

(2d Cir. 2013).

We first address Murphy's claim about the strip search and then turn

to his claim about the delay in his release.

I. The Strip-Search Claim

A. Applicable Law

Prior to the Supreme Court's decision in Florence, we had long held

that misdemeanor detainees could not be subjected to strip searches without

reasonable suspicion. In Weber v. Dell,

(2d Cir. 1986), for instance,

we determined that "the Fourth Amendment precludes [jail] officials from

performing strip/body cavity searches of arrestees charged with misdemeanors

14 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."

; see also Shain v. Ellison,

(2d Cir. 2001)

(finding it "clearly established" that "corrections officers in a local correctional

facility could not perform a strip search . . . on an individual arraigned on

misdemeanor charges unless the officers had reasonable suspicion that the

individual possessed contraband or weapons"); Wachtler v. County of Herkimer,

(2d Cir. 1994) ("We have held that the Fourth Amendment

proscription of strip-searches of misdemeanor arrestees without reasonable

suspicion is clearly enough established to preclude the defense of qualified

immunity."). These decisions were largely aligned with our holdings about strip

searches that did not involve jails or prisons -- in other words, situations in

which the security concerns of a jail or prison facility were not at issue. See, e.g.,

Hartline v. Gallo,

(2d Cir. 2008) (finding unconstitutional a

strip search of a misdemeanor arrestee at a police station, conducted pursuant to

a department policy but without reasonable suspicion, and denying qualified

immunity under this Court's clearly established law).

15 In Florence, the Supreme Court considered a policy at the "largest

county jail in New Jersey" that required all arriving detainees to undergo a visual

body cavity search before entering the jail's general population, "regardless of the

circumstances of the arrest, the suspected offense, or the detainee's behavior,

demeanor, or criminal history."

. In upholding the policy, the

Supreme Court reemphasized "the importance of deference to correctional

officials" and the related rule that "a regulation impinging on an inmate's

constitutional rights must be upheld 'if it is reasonably related to legitimate

penological interests.'"

at 326 (quoting Turner v. Safley,

(1987)).

Synthesizing its prior decisions, the Court explained that "correctional officials

must be permitted to devise reasonable search policies to detect and deter the

possession of contraband in their facilities,"

at 328 (citing Bell v. Wolfish,

(1979)), and rejected a rule that would require different, less-

invasive policies for misdemeanor detainees, on the ground that they may be just

as likely to smuggle illicit or dangerous contraband into jails, id. at 334-36. Thus,

the Court held, absent "substantial evidence" of an "exaggerated" response to

penological concerns, the "security imperatives involved in jail supervision

override the assertion that some detainees must be exempt from the more

invasive search procedures at issue absent reasonable suspicion of a concealed

16 weapon or other contraband." Id. at 330 (citing Block v. Rutherford,

(1984)).

As we have recognized, see Gonzalez v. City of Schenectady,

(2d Cir. 2013), Florence partly abrogated our prior case law, which had

premised the legitimacy of intake policies, and thus penological decision-

making, on the distinction between misdemeanor and felony detainees. Unless

there is "substantial evidence" of an "exaggerated" response, we must now defer

to corrections policies that apply to misdemeanor and felony detainees alike.

Florence,

. Specifically, under Florence, "a blanket policy of

conducting visual body cavity searches on new inmates [is] constitutional, even

for misdemeanor arrestees where there is no reason to suspect the arrestee would

have contraband." Gonzalez,

.

B. Application

The district court concluded that, even assuming Washburn

conducted the strip search, he was entitled to summary judgment. First, the

district court reasoned that the search did not violate the Constitution because

"Florence requires courts to defer to corrections officials absent 'substantial

evidence in the record' to show that the officials have 'exaggerated their

response,'" and Murphy had presented "no such evidence here." Murphy, 2021

, at *4 (quoting Florence,

). Second, the district court

held that even if Washburn had conducted an unconstitutional search, he was

protected by qualified immunity because he was acting "at the direction of a

superior." Id. at *5. We conclude the district court erred in both respects.

1. Florence

Florence does not dictate the result of this case because Murphy is

not challenging a prison-wide policy on its face or as applied to him; rather, his

claim concerns actions taken by an individual officer acting on his own whim

and contrary to established jail policy. As the Third Circuit has observed,

Florence's "'legitimate penological interest' test . . . is ill-suited for assessing

unauthorized and malicious conduct on the part of prison guards" in "violation

of the applicable regulations." Chavarriaga v. N.J. Dep't of Corr.,

(3d Cir. 2015).

Defendants do not -- and, in view of the Policy's clear language,

cannot -- claim there was a policy requiring that every detainee admitted to the

County Jail be strip searched or a policy calling for a strip search of a prisoner

with Murphy's characteristics. Nor have they asserted a legitimate penological

justification for subjecting Murphy to such a search. Instead, on the facts most

favorable to Murphy, which we must accept for these purposes, Murphy was

18 strip searched because of an individual officer's ad hoc decision. We conclude

that, in these circumstances, the standard set forth in our pre-Florence case law

continues to apply: If a misdemeanor arrestee entering a prison is subjected to

an ad hoc strip search, without reasonable suspicion, the Fourth Amendment is

violated. See, e.g., In re Zarnel,

(2d Cir. 2010) (observing that this

Court is bound to follow prior precedent unless an intervening Supreme Court

decision "casts doubt" on it (internal quotation marks and citation omitted)). 6

Florence did not hold that individual actions, ungrounded in legitimate

penological purposes and in contravention of a jail's policy, are exempt from the

Constitution's requirement that "a search be justified as reasonable under the

circumstances." Weber,

; see also Sloley v. VanBramer,

(2d Cir. 2019) (requiring police-station visual body cavity searches of arrestees to

be supported by reasonable suspicion, regardless of whether the arrest is for a

6 Nor does Florence foreclose any claim Murphy may have under the New York Constitution. Although his amended complaint invokes only the United States Constitution, pro se pleadings must be liberally construed to raise the strongest claims they suggest, including parallel state law claims when state law provides a stronger legal foundation for the allegations pleaded. See McLeod v. Jewish Guild for the Blind,

(2d Cir. 2017) (per curiam). In a prior summary order, we observed that Florence did not govern a claim brought under Article 1, Section 12 of the New York Constitution, which contains New York's counterpart to the Fourth Amendment. See In re Nassau Cnty. Strip Search Cases,

(2d Cir. 2016) (summary order). On remand, the district court should consider Murphy's search claim as arising under both the federal and state constitutions.

19 felony or misdemeanor). 7 Absent an actual penological justification or

institutional policy, our prior case law on the constitutional boundaries of

permissible strip searches continues to apply.

Here, the jail did not have a policy calling for strip searching

Murphy in the circumstances, nor did it have a legitimate penological interest for

doing so. Moreover, the Policy was consistent with our pre-Florence law,

permitting strip searches only upon individualized reasonable suspicion. On the

record below, a reasonable jury could surely conclude there was no

constitutionally cognizable reason justifying the strip search. As the district

court recognized, the Justification Sheet did not provide "any specific reasonable

suspicion to justify the strip search." Murphy,

, at *4. Indeed,

Murphy was a 67-year-old man, who was sitting on a bus a little before 9 a.m.

He was arrested on a misdemeanor warrant -- not for weapons or drug

violations, but for home maintenance and fire code infractions. Moreover, his

7 As we observed in Sloley, "[v]isual body cavity searches are invasive and degrading, occasioning a serious invasion of privacy and working a significant harm to a person's bodily integrity. . . . They 'require an arrestee not only to strip naked in front of a stranger, but also to expose the most private areas of her body to others. This is often . . . done while the person arrested is required to assume degrading and humiliating positions.'"

(quoting Swain v. Spinney,

(1st Cir. 1997)).

20 $750 bail had been or was being posted; he was to be released or reappear in

court no later than 1 p.m., only about an hour after the search took place; and he

was not likely to be housed in the jail's general population. In these

circumstances, there was little -- if any -- reason to suspect he was hiding a

weapon or drugs inside his body cavity or that he would bring contraband into

the jail's general population.

At no point in this litigation have defendants purported to identify a

legitimate penological purpose for the strip search. Furthermore, there was

evidence that Washburn's actions were motivated by malice. He mocked

Murphy about the size of his penis. And when another officer noted that

Murphy's bail was "out there" and they needed "to cut him loose," Washburn

responded in a manner that could be understood to exhibit malice by saying that

Murphy would not be going anywhere and was going to sit in "my" jail "for a

while." Doc. 66-4 at 60-61. On these facts, a reasonable jury could readily

conclude that Washburn was acting not to further legitimate penological

concerns but purely out of vindictiveness.

2. Qualified Immunity

The district court held that Washburn was protected by qualified

immunity because there was "no question that an officer of reasonable

21 competence would have thought that conducting a strip search of a new inmate

at the direction of a superior was constitutional." Murphy,

, at *5

(citing Vasquez,

). We conclude that genuine issues of fact were

presented as to whether Washburn was protected by qualified immunity.

We have held that "[p]lausible instructions from a superior or fellow

officer support qualified immunity where, viewed objectively in light of the

surrounding circumstances, they could lead a reasonable officer to conclude that

the necessary legal justification for his actions exists." Vasquez,

(citation omitted). But that test still requires a record of "plausible" instructions

that are objectively reasonable, and this record falls short.

First, the record is muddled as to whether Washburn was in fact

following the directions of a superior officer. Washburn denies conducting the

strip search and argues only hypothetically that if he did, he would have been

following orders. Doc. 66-7 ¶ 19 ("Assuming, for purposes of this motion only,

that it was me that conducted the strip search, I would have lacked discretion as

to whether or not to perform the strip search, and the strip search would have

occurred solely based upon a direct order from a superior pursuant to Chemung

County Jail policy."). Washburn does not state that any order was actually given,

and no evidence has been provided as to the identity of any officer who might

22 have given an order for the search. Moreover, Washburn's self-serving testimony

that the entry "per Post 1" on the Justification Sheet meant that a superior officer

had ordered the search was not necessarily believable.

Second, on this record, a reasonable jury could find that Washburn

was responsible, in whole or in part, for the decision to strip search Murphy. The

Justification Sheet, which was supposed to set forth the reason for the search and

identify the officer who authorized it, does not provide any reason for the search,

does not reveal who (if anyone) authorized the search, and provides no detail

about how the search was authorized other than the cryptic designation "per Post

1." Doc. 66-8 at 2. Contrary to Washburn's assertion that he did not conduct the

search, the Justification Sheet identifies him as the "Search Officer."

And

Washburn's conclusory assertion that, if he conducted the search, he was merely

following orders, does not establish or demonstrate as a matter of law that any

orders were actually given, suggest that if given they were reasonable or

plausible, or show that Washburn was powerless to question them. The absence

of reasonable suspicion for the search, Washburn's failure to properly document

the search or indicate which superior officer approved it, the crude gesture he

made after the search, and his comments about Murphy sitting in "my" jail "for a

while" despite bail having been posted are all circumstances from which a

23 reasonable jury could infer that Washburn was acting of his own volition and not

pursuant to the orders of a superior.

Vasquez is not to the contrary. In that case, we rejected the officers'

qualified immunity argument at summary judgment because they asserted they

received only "guesswork" from a fellow officer about the basis for detaining the

plaintiff, yet the record did not show they had done anything to "corroborate that

guess."

. Here, the conclusory and hypothetical statements in

Washburn's affidavit do not establish that even "guesswork" was involved.

To sum up, on this record, a reasonable jury could find that, instead

of simply following the orders of a superior officer, Washburn was a party to

harassment and demeaning conduct culminating in the search -- conduct that he,

and other reasonable officers, should have known had no legitimate penological

purpose and was therefore unconstitutional. A jury may find otherwise, but in

light of these disputed material facts, the district court erred when it granted

summary judgment on Murphy's strip search claim.

II. The Delay Claim

Because Murphy was a pretrial detainee who had already been

arraigned, the district court properly assessed his delay claim under the

Fourteenth Amendment's substantive due process guarantee. See Edrei v.

24 Maguire,

(2d Cir. 2018) (confirming pre-trial detainees "rely on

the constitutional guarantee of 'due process'" under the Fourteenth Amendment,

while arrestees rely on the Fourth Amendment). Although we have not

previously addressed the precise issue Murphy's delay claim presents, other

Circuits have recognized that substantive due process concerns are implicated

when a detainee's release is delayed after the legal basis for detention has ended.

See, e.g., Goldberg v. Hennepin County,

(8th Cir. 2005) ("Claims

alleging the excessive detention of one who has established the right to be

released are typically analyzed under the Due Process Clause."); Berry v. Baca,

(9th Cir. 2004) ("[P]laintiffs possessed a constitutional right to

freedom from imprisonment a reasonable time after they were judicially

determined to be innocent of the charges against them.").

The district court evaluated Murphy's delay claim under the

framework articulated in Lynch v. City of New York,

(S.D.N.Y.

2018), which also involved post-bail detainment. See Murphy,

,

at *3. In Lynch, plaintiffs argued that New York City's "procedures for bail

payment and release result[ed] in unreasonably lengthy delays in permitting bail

to be posted and subsequently releasing detainees for whom bail ha[d] been

paid."

. The plaintiffs alleged, inter alia, that the city's delay

25 in releasing them after they had already paid their bail was unjustified and

resulted in their over-detention in violation of their right to substantive due

process. See

. The court first reiterated that, to state a substantive

due process claim, plaintiffs had to allege (1) a valid liberty interest (2) that the

defendants infringed in an arbitrary or irrational manner.

at 654 (citing Harlen

Assocs. v. Inc. Vill. of Mineola,

(2d Cir. 2001)). It then noted that

plaintiffs had the burden to sufficiently allege that the city's action was "arbitrary

in the constitutional sense," i.e., that it "shocks the conscience."

(quoting

O'Connor v. Pierson,

, 203 (2d Cir. 2005)). The court denied the

defendants' motion to dismiss, concluding that the three plaintiffs -- who had

been subjected to delays of 9 hours, 18 hours, and 23 hours in their release after

the posting of their bail -- had stated a substantive due process claim. See id.

at 648-49.

The district court was correct to apply Lynch's framework to

Murphy's delay claim. Lynch properly recognized that claims for unlawful

pretrial detention arise under the Fourteenth Amendment, see id. at 653, and

accurately stated the elements of a substantive due process claim, see id. at 654.

Moreover, the court in Lynch correctly summed up our holdings as to when

executive government action shocks the conscience: It "depends on the state of

26 mind of the government actor and the context in which the action was taken."

See id. (quoting O'Connor, 426 F.3d at 203); see also Edrei,

("[T]he

central inquiry has always been whether the government action was rationally

related to a legitimate government objective.").

To be certain, "[t]he shocks-the-conscience test is necessarily

imprecise." O'Connor, 426 F.3d at 203. We have not previously decided what

degree of delay in a detainee's release on bail is so egregious as to shock the

conscience, but we are mindful that both the Supreme Court and other Circuits

have repeatedly held that "[i]n the Fourteenth Amendment context . . . 'there is,

of course, a de minimis level of imposition with which the Constitution is not

concerned.'" Crocker v. Beatty,

(11th Cir. 2021) (quoting Bell,

n.21)). Although the Supreme Court has rejected such a de

minimis rule as to whether brief searches or seizures that are conducted without

reasonable suspicion after an officer has completed a lawful traffic stop violate

the Fourth Amendment, see Rodriguez v. United States,

(2015), the

Court expressly cabined that decision to the distinctive setting of traffic stops,

see

. Courts continue to dismiss other constitutional claims brought

by detainees when the alleged violations are de minimis. See Crocker,

; cf. Hill v. Wetzel, No. 21-3009,

(3d Cir. Oct. 7, 2022)

27 (vacating the dismissal of a case because plaintiff had pled more than de minimis

physical injury).

To defeat summary judgment, Murphy was required to present

evidence that a reasonable jury could find that Washburn's actions shocked the

conscience. See O’Connor, 426 F.3d at 203. Although it is a close call, we

conclude that a reasonable jury could so find.

First, construing the facts and reasonable inferences in Murphy's

favor, a reasonable jury could find that his release was unnecessarily delayed for

as much as two hours. Bail was set around 10 a.m., Camilli presented the bail

money at the County Jail by approximately 10:30 a.m., and yet Murphy was not

released until shortly before 1 p.m. While some of this time was legitimately

related to the time needed to fingerprint, photograph, and process Murphy, a

reasonable jury could find that most of it was unnecessary. Of course, factual

issues exist as to precisely how much of the delay was required by the booking

process and how much was unnecessary.

Second, the delay was not just a matter of the loss of two hours. To

the contrary, Murphy was subjected to two hours of distress and uncertainty,

and a jury could find that his release was delayed because Washburn decided to

subject him to a degrading strip search. See Sloley,

("Visual body

28 cavity searches are invasive and degrading, occasioning a serious invasion of

privacy and working a significant harm to a person's bodily integrity.").

Third, even if a two-hour delay caused by the inefficiencies of a

bureaucratic process without aggravating evidence could not sustain a judgment

in favor of a plaintiff, a reasonable jury could find for a plaintiff when the

evidence showed that the two-hour delay was occasioned solely by an official's

malicious vindictiveness. See O'Connor, 426 F.3d at 203 (vacating summary

judgment because record supported reasonable inferences that defendant's

actions were calculated to injure or spite plaintiff which, if true, would render the

behavior conscience-shocking). Again, construing the record in Murphy's favor,

Gunderman cautioned Washburn two or three times that Murphy's bail was "out

there" and that he had to be released. Yet, Washburn ignored Gunderman and

deliberately kept Murphy in "my" jail "for a while." Moreover, Washburn

subjected Murphy to a strip search gratuitously, without reasonable suspicion, in

contravention of the Policy. Washburn's words and his crude gesture suggest

that his actions were not merely negligent but, instead, that he was actively

hostile. See id. (noting that while "mere negligence will never give rise to a

substantive due process violation," due process liability can attach where an

officer "acted with a purpose to cause harm").

29 Of course, there will be instances where a two-hour delay in release

following the posting of bail is a de minimis intrusion that does not rise to the

level of a constitutional violation. But here, a jury could find that the strip search

was not rationally related to any legitimate governmental purpose and that

Washburn acted deliberately and vindictively. Cf. County of Riverside v.

McLaughlin,

(1991) (observing, in Fourth Amendment context, that

delays of less than 48 hours may nevertheless be unconstitutional if motivated by

"delay for delay's sake" or "ill will"); Lynch,

(denying motion to dismiss Fourteenth Amendment claim for delays of 9, 18, and

23 hours after posting of bail, where plaintiffs plausibly alleged that defendants

acted with deliberate indifference by delaying release until "a critical mass of

bailed-out detainees [had been] gathered"). We conclude in these circumstances

that a reasonable jury could find that the delay in Murphy's release shocked

the conscience.

CONCLUSION

For the reasons stated above, we AFFIRM the district court's grant of

summary judgment to the individual defendants other than Washburn, we

VACATE the grant of summary judgment as to Washburn on both Murphy's

30 search and delay claims, and we REMAND for further proceedings consistent

with this opinion.

31