23-93 Miller v. City of New York

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 2nd day of July, two thousand twenty-four.

PRESENT:

DENNY CHIN, RICHARD J. SULLIVAN, BETH ROBINSON, Circuit Judges. _____________________________________

TYANA MILLER, KENYA THOMAS,

Plaintiffs-Appellants,

v. No. 23-93

CITY OF NEW YORK, POLICE OFFICER BRIDGET PENNER, POLICE OFFICER ANDREW KAMNA, SERGEANT DAVID CHEESEWRIGHT, POLICE OFFICER LEONARD CLARKE, Defendants-Appellees,

JANE AND JOHN DOES 1–10, JANE DOE,

Defendants. _____________________________________

For Plaintiffs-Appellants: David A. Zelman, Law Office of David Zelman, Brooklyn, NY.

For Defendants-Appellees: Richard Dearing, Ingrid R. Gustafson, Karin Wolfe, Of Counsel, for Hon. Silvia O. Hinds-Radix, Corporation Counsel of the City of New York, New York, NY.

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

District of New York (J. Paul Oetken, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the September 12, 2022 judgment of the

district court is AFFIRMED.

Plaintiffs Tyana Miller and Kenya Thomas appeal from a judgment of the

district court following a jury verdict in favor of the City of New York and several

police officers on Plaintiffs’ claims under

that the officers violated

their Fourth Amendment rights. 1 We assume the parties’ familiarity with the

1 Although Plaintiffs also brought battery and assault claims under state law, they abandoned

those claims on appeal by failing to challenge the adverse judgment on those claims. See United

2 underlying facts and procedural history, to which we refer only as necessary to

resolve this appeal.

In February 2017, police officers executed a search warrant at a Brooklyn

apartment in the early morning hours. As it turned out, the target of the search,

for whom the officers also had an arrest warrant, was not home, but Plaintiffs were

asleep inside the apartment. In order to secure the premises, the officers detained

both Plaintiffs and, allegedly, subjected them to invasive searches while they were

fully or partially undressed. Plaintiffs subsequently commenced this action,

alleging that the searches violated their Fourth Amendment rights. The case

proceeded to trial on two theories of liability. First, Miller asserted that two of

the officers – defendants Bridget Penner and Andrew Kamna – detained and

searched her in an unreasonable manner by forcing her to wait in the nude for a

prolonged period of time and in the presence of officers of the opposite sex.

Second, both Plaintiffs argued that Penner violated their constitutional rights by

searching them while they were nude and by carrying out body cavity searches.

At trial, the jury heard testimony from both Plaintiffs, Penner, and Kamna,

who gave conflicting accounts as to whether Plaintiffs were nude and how the

States v. Babwah,

(2d Cir. 1992) (“[A]n argument not raised on appeal is deemed abandoned.”).

3 searches were conducted. The jury returned a verdict for Defendants on all

claims. Plaintiffs then filed a post-trial motion seeking judgment as a matter of

law or a new trial pursuant to Federal Rules of Civil Procedure 50(b) and 59(a),

which the district court denied. This appeal followed.

I. Jury Instructions

At the outset, Plaintiffs raise several challenges to the jury instructions that

they argue entitle them to a new trial under Rule 59. As a general matter, “[a]

party who objects to an instruction or the failure to give an instruction must do so

on the record, stating distinctly the matter objected to and the grounds for the

objection.” Fed. R. Civ. P. 51(c)(1). If a party fails to do so, we review her

challenge to the instructions only for plain error. See Rasanen v. Doe,

(2d Cir. 2013). On plain error review, we will “only grant relief if there was

(1) error, (2) that is plain, (3) that affects substantial rights, and (4) [that] seriously

affects the fairness, integrity, or public reputation of judicial proceedings.” Yukos

Cap. S.A.R.L. v. Feldman,

(2d Cir. 2020) (internal quotation marks

omitted). To be “plain,” an error must contravene an “established rule of law.”

Emamian v. Rockefeller Univ.,

(2d Cir. 2020) (internal quotation

marks omitted). “In order to show plain error affecting ‘substantial rights,’ a

4 litigant must typically show that the error was prejudicial: [i]t must have affected

the outcome of the district court proceedings.” Keeling v. Hars,

(2d

Cir. 2015) (internal quotation marks omitted). The Supreme Court has

“cautioned that instructions must be evaluated not in isolation but in the context

of the entire charge.” Jones v. United States,

(1999).

Miller first contends that the district court gave an incorrect instruction as

to when a nude search violates the Fourth Amendment. As delivered, that charge

instructed the jury that, if it found that “Miller was subjected to a physical search

in the nude,” then it “may find that this search was an unreasonable strip search

under the Fourth Amendment.” Trial. Tr. at 362. Miller argues that nude

subjects may never be searched – visually, by a patdown, or via a body cavity

search – unless officers have “particularized suspicion that contraband would be

found on [them].” Pls. Br. at 13. And because there was allegedly no such

suspicion here, Miller contends that the district court should have instructed the

jury that it must find for Miller if it determined that she was partially or fully naked

when Penner searched her.

5 As a threshold matter, Miller did not properly raise this objection, so we

review only for plain error. 2 We see no such error here, because there is no

“established rule of law” that categorically forbids limited searches without

reasonable suspicion of individuals who are naked when officers enter a dwelling

to execute a warrant. Emamian,

(internal quotation marks

omitted). We have long recognized that officers executing a search warrant on a

premises may perform a “limited search,” Rivera v. United States,

(2d Cir. 1991), or “patdown,” United States v. Jaramillo,

(2d Cir.

1994), on any occupant they encounter, without reasonable suspicion that the

occupant is concealing contraband. And while we have held that reasonable

suspicion is generally required before an officer orders a suspect to remove her

clothes for a “strip search,” Rivera, 928 F.2d at 606–07; Pls. Br. at 12, we have never

held that officers need reasonable suspicion in order to search or pat down a

suspect who (like Miller here) was already nude when officers arrived. We have

certainly never held that officers must avert their eyes in the event that the

occupant of a search location is nude at the time the search commences. There is

2 While counsel argued that the word “nude” was not clear as to whether it meant “fully” versus

“partially” nude, he did not object to the rest of the instruction. Trial Tr. at 381.

6 thus no categorical rule like the one Miller posits here, in which a jury would be

“require[d]” to find for a plaintiff if she was subjected to any degree of nude search

without reasonable suspicion. Pls. Br. at 13. Because Miller cannot show that

the instruction contravened an established rule of law, we cannot say that the

district court plainly erred.

We likewise reject Miller’s assertion that the district court erroneously

instructed the jury that Penner’s search of Miller was unconstitutional only if it

involved “invasive touching.” Id. at 14. Miller argues that the district court

should have issued an instruction like the one given for Thomas’s claims, which

permitted the jury to find for Thomas if she was searched “in a manner that

included unreasonably invasive touching or was otherwise unreasonably intrusive

under the circumstances.” Trial Tr. at 364 (emphasis added). Because Miller’s

charge lacked that catchall language, she contends that the jury would have

believed that it could not find the officers liable if Miller was unreasonably

searched without any invasive touching.

Miller did not object to this aspect of the charge, so we again review the

instruction for plain error. 3 We see none here, for the simple reason that nothing

3 In fact, the only reason that the Thomas charge included the “otherwise unreasonably

7 indicates that this alleged defect in the charge “affected the outcome of the case.”

Warren v. Pataki,

, 138–39 (2d Cir. 2016). Miller speculates that she

was prejudiced because the jury might have found Penner liable based on a “visual

body cavity search” that did not involve invasive touching. Pls. Br. at 15. But

Miller never asserted that theory of liability in the complaint or proposed pretrial

order. Instead, she claimed that Penner unreasonably searched Miller while she

was nude or performed a “manual body cavity” search by penetrating her. Dist.

Ct. Doc. No. 101 at 3 (emphasis added). The district court did not plainly err by

failing to include an instruction about a theory that Miller never alleged,

developed at trial, or argued in summation.

Finally, both Plaintiffs argue that the instructions “misled” the jury to

believe that it could find for them only if the jury believed every aspect of their

testimony. Pls. Br. at 15. Here, Plaintiffs appear to take issue with two clauses

in the charge that instructed the jury that it could find for each Plaintiff only if it

determined that “the search occurred in the manner [she] allege[d].” Trial Tr. at

intrusive” language was because counsel objected to the instruction for Thomas, which prompted the district court to insert that language. Trial Tr. at 311–12. In the same colloquy, counsel appeared to even concede that Miller’s charge did not require any additional language like “otherwise unreasonably intrusive,” because that charge already permitted the jury to find Penner liable if she performed a “strip search” on Miller. Id. at 311.

8 363 (instruction for Miller); id. at 364 (instruction for Thomas). Plaintiffs speculate

that this required the jury to return a defense verdict if it disbelieved any portion

of Plaintiffs’ testimony about the searches, since that would mean those searches

did not occur in the exact “manner” alleged. Id. at 363–64. Miller specifically

posits that if the jury believed her claim that she was subjected to a strip search

but not her allegation that she was subjected to a manual body cavity search, then

it could not find in her favor even if she was subjected to an unconstitutional strip

search. See Pls. Br. at 16.

Once again, Plaintiffs failed to distinctly object to this instruction at trial,

and so we review it for plain error. See Trial Tr. at 311–12. When viewed “as a

whole,” we cannot say that the jury instructions failed to convey the relevant law

to a “reasonable juror.” United States v. Gabinskaya,

(2d Cir. 2016)

(internal quotation marks omitted). As the Supreme Court has explained,

“instructions that might be ambiguous in the abstract can be cured when read in

conjunction with other instructions.” Jones,

. Here, even if the

challenged clause could be read to suggest that the jury could not find for Plaintiffs

based on partially credited testimony, the district court elsewhere clarified that the

jury was free to credit only part of a witness’s testimony. See Trial Tr. at 375

9 (“[Y]ou may reject that witness’s testimony in its entirety or you may accept only

those parts that you believe to be truthful.”). And the instructions did not suggest

that the jury could only convict if it accepted each plaintiff’s testimony in its

entirety. In particular, as for Miller’s suggestion that the jury may have found

that she was “subjected to a strip search but not a manual cavity search,” the

district court was careful to explain that either a “strip search” or a “cavity search”

would violate the Fourth Amendment. Id. at 362. Whatever ambiguity arguably

lurked in the isolated language seized on by Plaintiffs, the instructions as a whole

were sufficient.

II. Judgment As A Matter Of Law

Miller also argues that she was entitled to judgment as a matter of law

pursuant to Rule 50 because the undisputed evidence at trial proved that she was

detained while she was nude. We review de novo a district court’s denial of a Rule

50 motion for judgment as a matter of law. See Velez v. City of New York,

(2d Cir. 2013). We will overturn a jury’s verdict only if there is “such a

complete absence of evidence supporting the verdict that the jury’s findings could

only have been the result of sheer surmise and conjecture, or such an

overwhelming amount of evidence in favor of the movant that reasonable and

10 fair[-]minded [persons] could not arrive at a verdict against him.” Song v. Ives

Lab’ys, Inc.,

(2d Cir. 1992) (alterations and internal quotation

marks omitted).

Miller contends that the uncontroverted trial testimony established that

Penner caused Miller to remove a blanket and expose herself to a male officer for

several seconds while Penner helped Miller put on leggings. According to Miller,

this momentary exposure entitled her to judgment as a matter of law against

Penner, because such conduct constituted a per se violation of the Fourth

Amendment. We disagree. More importantly, so does the Supreme Court.

In Los Angeles County v. Rettele, the Supreme Court found no Fourth

Amendment violation when officers executing a warrant ordered a naked man

and woman out of bed in order to secure the room and preserve evidence.

, 614–15 (2007). As here, that command caused the undressed couple to

be exposed to officers, reportedly for up to two minutes. See

(“Deputies

were not required to turn their backs to allow [the couple] to retrieve clothing or

to cover themselves with the sheets.”). If that level of exposure to officers of the

opposite sex was permissible, so too was the even briefer exposure here.

11 Moreover, even if Rettele did not directly foreclose liability here, Defendants

would be entitled to qualified immunity. This doctrine shields government

officials from damages suits under

unless the unlawfulness of

their conduct was “clearly established” by Supreme Court or Second Circuit

precedent at the time of the alleged violation. See Garcia v. Does,

(2d Cir. 2015) (internal quotation marks omitted). Miller points to no precedent

of that sort here, offering only cases that discuss the general rule that more

prolonged and intensive cross-gender strip searches can be unreasonable. See,

e.g., Harris v. Miller,

(2d Cir. 2016). This cannot “clearly” establish

liability, especially in light of Rettele’s holding that a longer exposure did not

violate the Fourth Amendment.

III. New Trial

Last, Miller briefly argues that the district court should have granted her a

new trial under Rule 59 on her cross-gender exposure claim. “A motion for a new

trial should be granted when, in the opinion of the district court, the jury has

reached a seriously erroneous result or the verdict is a miscarriage of justice.”

Song,

(alterations and internal quotation marks omitted). But as

we have already explained, Miller’s mere allegations of cross-gender exposure

12 cannot state a claim for a violation of the Fourth Amendment. We thus affirm the

district court’s denial of Miller’s motion on that basis.

* * *

We have considered Miller’s and Thomas’s remaining arguments and find

them to be without merit. Accordingly, we AFFIRM the judgment of the district

court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

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