justified. However, when an arrestee charged with a felony or a misdemeanor involving weapons or contraband is strip searched pursuant to a policy encompassing all arrestees, regardless of the nature of their offenses, and where it is conceded that no suspicion regarding the particular arrestee existed, the requisite justification for the search is lacking; neither the general policy nor its particular application is supportable.
In Smith, the policy at issue was a blanket policy like the one involved in this case; all arrestees were routinely strip searched without regard to the nature of the charged offense. To the extent that Smith stands for the proposition that an arrestee who is strip searched pursuant to such a policy, absent any suspicion that the particular arrestee is concealing weapons or contraband, has suffered no constitutional infringement, we do not agree.
We therefore hold that plaintiff's constitutional rights were violated when she was strip searched at the Camden County jail.
II. Personal Liability of Sheriff Simon and Matron Williams
Plaintiff has sued defendants Sheriff Simon and Matron Williams in both their official and their personal capacities. Official-capacity suits "'generally represent only another way of pleading an action against an entity of which an officer is an agent,'" Kentucky v. Graham, 473 U.S. 159, 105 S. Ct. 3099, 3105, 87 L. Ed. 2d 114 (1985) (quoting Monell v. New York City Dept. of Social Services, 436 U.S. 658, 690, 56 L. Ed. 2d 611, 98 S. Ct. 2018 n.55 (1978)); accordingly, plaintiff's suit against Sheriff Simon and Matron Williams in their official capacities shall be treated as an action against Camden County, discussed infra. Personal-capacity suits, however, seek to impose personal liability upon a government official; damages are recoverable from the official's personal assets. Graham, 105 S. Ct. at 3105. In order to establish personal liability in a § 1983 action, "it is enough to show that the official, acting under color of state law, caused the deprivation of a federal right," id. at 3106, and plaintiff has so shown. However, Sheriff Simon and Matron Williams are entitled to, and do, raise the defense of qualified immunity.
Whether an official may prevail in a qualified immunity defense depends upon the "objective reasonableness of [his] conduct as measured by reference to clearly established law." Harlow v. Fitzgerald, 457 U.S. 800, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982). There is no general consensus on when the unconstitutionality of blanket strip search policies became "clearly established." Compare Weber v. Dell, 804 F.2d 796, 803 (2nd Cir. 1986) (clearly established in 1983); Ward v. County of San Diego, 791 F.2d 1329, 1333 (9th Cir. 1986) (clearly established in 1981) with Fann v. City of Cleveland, 616 F. Supp. 305, 314 (N.D. Ohio 1985) (not clearly established in 1983); John Does 1-100 v. Ninneman, 612 F. Supp. 1069, 1072 (D.Minn. 1985) (not clearly established in 1984).
Standing alone, this conflicting authority, the relatively recent vintage of most strip search cases, and the fact that the United States Court of Appeals for the Third Circuit has yet to rule on the constitutionality of blanket strip search policies, would incline us to hold that Sheriff Simon and Matron Williams are not liable for damages in their personal capacities. This inclination is bolstered by the fact that at the time of plaintiff's strip search, the County's strip search policy was mandated by a state regulation. See N.J.A.C. § 10A:31-3.12(2) (1979), supra note 2. State laws are presumptively valid; and while adherence to an unconstitutional state law mandate will not absolutely immunize a local government official, he will be excused from § 1983 liability "for acting under a statute that he reasonably believed to be valid but that was later held unconstitutional, on its face or as applied." Pierson v. Ray, 386 U.S. 547, 555, 18 L. Ed. 2d 288, 87 S. Ct. 1213 (1967). In this court's view, the New Jersey regulation at issue here was not, in May, 1984, so clearly unconstitutional that the defendants reasonably should have known that they were obligated not to implement it, and they are entitled to a defense of good faith.
For the foregoing reasons, plaintiff's summary judgment motion shall be denied with respect to the liability of Sheriff Simon and Matron Williams in their personal capacities.
III. LIABILITY OF CAMDEN COUNTY
A municipality cannot be held liable under 42 U.S.C. § 1983 for constitutional deprivations unless the unconstitutional conduct occurred as a result of the implementation or execution of a municipal policy or custom. Monell v. New York City Dept. of Social Services, 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978). The County of Camden has admitted that "the Camden County Sheriff's Office maintained a policy of having an officer of the same sex strip search any person unable to post bail who was to be lodged in the Camden County Jail in May, 1984." However, it argues that because this policy was mandated by a state regulation, see supra, the policy was not a "county policy" as contemplated by Monell and its progeny, but a state policy that county officials merely enforced; and that accordingly, the County cannot be held liable under § 1983 for plaintiff's damages.
Before we address the County's argument, we note that both the New Jersey regulation and the policy of the Camden County Sheriff's Office have been changed since plaintiff's strip search. The policy of the Sheriff's Office, which was amended to require probable cause to strip search persons detained for various minor offenses, was changed almost a year before the similar amendment of the New Jersey regulation.
Although, somewhat surprisingly, there is little authority on the issue before us, we believe that a municipality should be held liable under § 1983 when it officially adopts a policy that subsequently is declared unconstitutional, notwithstanding the fact that the policy was mandated by state law, and we so hold. As we see it, the County's argument that the municipal policy requirement of Monell has not been satisfied in this case misconstrues the meaning of that requirement. As the Supreme Court recently stated, the official policy requirement was imposed in light of the legislative history of § 1983, which revealed that Congress doubted its constitutional power to impose vicarious liability on municipalities. Pembaur v. City of Cincinnati, 475 U.S. 469, 106 S. Ct. 1292, 1298, 89 L. Ed. 2d 452 (1986). Accordingly,
the "official policy" requirement was intended to distinguish acts of the municipality from acts of employees of the municipality, and thereby make clear that municipal liability is limited to action for which the municipality is actually responsible. Monell reasoned that recovery from a municipality is limited to acts that are, properly speaking, acts "of the municipality" - that is, acts which the municipality has officially sanctioned or ordered.
Id. (emphasis in original). In the instant case, there is no attempt to impose liability on the County on a respondeat superior basis; the Camden County Sheriff's Office has acknowledged that it officially sanctioned the strip search policy at issue. Although we are not unsympathetic to the County's dilemma, it simply is not "the problem to which Monell's requirement of an 'official policy' was addressed." Schnapper, Civil Rights Litigation After Monell, 79 Colum. L. Rev. 213, 225 (1979). See also id. at 226 ("if the Forty-second Congress had thought it inappropriate that cities be held liable for carrying out state mandated policies, it would not have permitted suits against cities at all, for that Congress regarded everything a city did as merely implementing such policies.")
Furthermore, a holding contrary to the one we reach would be palpably inconsistent with the underlying purpose of § 1983, a statute designed to insure that victims of unconstitutional state action are compensated for the violation of their rights, and one that, as such, must be liberally construed. In light of these factors, the Supreme Court held in Owen v. City of Independence, 445 U.S. 622, 63 L. Ed. 2d 673, 100 S. Ct. 1398 (1980), that municipalities are not entitled to qualified immunity based on the good faith of their officials, reasoning that "even where some constitutional development could not have been foreseen by municipal officials, it is fairer to allocate any resulting financial loss to the inevitable costs of government borne by all the taxpayers, than to allow its impact to be felt solely by those whose rights, albeit newly recognized, have been violated." Id. at 655. Faced with a choice between depriving victims of constitutional violations of recovery and imposing liability without any real fault on local governments, the Owen court, in view of the remedial purpose of § 1983, chose the latter course. Our holding today is motivated by similar policy considerations.
A number of courts have imposed liability on local government bodies for unconstitutional policies that are authorized, but not mandated, by state law. See, e.g., Evers v. County of Custer, 745 F.2d 1196, 1203-04 (9th Cir. 1984) (county); Familias Unidas v. Briscoe, 619 F.2d 391, 403-04 (5th Cir. 1980) (school district).
We recognize that there is a distinction between the situation in which state law authorizes unconstitutional conduct, and the situation in which state law requires an unconstitutional procedure to be implemented; in the former, municipal officials can decline to follow the law without actually violating it, while in the latter they cannot. Yet the concern that an official will be forced to "choose between being charged with dereliction of duty if he does not [enforce state law], and being mulceted in damages if he does," Pierson v. Ray, 386 U.S. 547, 555, 18 L. Ed. 2d 288, 87 S. Ct. 1213 (1967), is precisely that which the qualified immunity defense is designed to alleviate; the official is immunized from personal liability if he reasonably relies on a state law that subsequently is declared unconstitutional. And while we are not insensible either to the predicament of the municipality itself in such circumstances, or the concern that "society would be ill-served if [local officials] took it upon themselves to determine which laws are and which are not constitutionally entitled to enforcement," Michigan v. DeFillippo, 443 U.S. 31, 38, 99 S. Ct. 2627, 61 L. Ed. 2d 343 (1979), it is noteworthy that such considerations have not prevented the courts from imposing liability on municipalities for implementing unlawful, yet state mandated, policies in other contexts. See, e.g., EEOC v. County of Allegheny, 705 F.2d 679 (3d Cir. 1983) (county's avowed policy of refusing to consider applicants over the age of 35 for positions as police officers violates the Age Discrimination in Employment Act of 1967; county therefore is liable for any damages that plaintiffs could establish notwithstanding the fact that county policy was mandated by state law). And cf. Anela v. City of Wildwood, 790 F.2d 1063 (3d Cir.), cert. denied, 479 U.S. 949, 107 S. Ct. 434, 93 L. Ed. 2d 384 (1986) (city is liable under § 1983 when it implements unconstitutional bail schedule established by state court judge, in contravention of state supreme court rule).
Finally, the argument that municipal liability should not attach when municipal officials effectuate a state mandated policy because the officials had no choice but to implement the policy
can be met with the observation that not only do these officials have such a choice, but they may be obliged not to implement the state law if they wish to avoid personal liability under § 1983. Municipal officials cannot blindly implement state laws; they are required to independently assess the constitutionality of the laws and, although they will be protected if their assessment, albeit incorrect, was objectively reasonable, they will be held personally liable if they should have known that the law was unconstitutional, see Harlow, discussed supra. Indeed, in this very case, Camden County officials ultimately did change the County's strip search policy notwithstanding the New Jersey regulation. Both in initially following, and in subsequently declining to follow, the dictates of the New Jersey regulation, these officials established final county policy with respect to the subject matter in question.
In short, the fact that state law mandates that a municipality implement a particular policy does not render the municipality's affirmative adoption of that policy any less of a municipal policy than when state law merely authorizes the municipality's action, or when state law is silent. This is not a case in which the actions of county officials cannot be attributed to the county itself; Camden County has acknowledged that it officially sanctioned the strip search policy. Compare Familias Unidas v. Briscoe, 619 F.2d 391, 404 (5th Cir. 1980) (county not liable under § 1983 when county judge implements unconstitutional state statute). Camden County therefore is liable to plaintiff for the damages she sustained as a result of the unconstitutional strip search, and plaintiff's summary judgment motion against Camden County with respect to her federal constitutional claim shall be granted.
IV. State Law Claim
Plaintiff has appended a state law cause of action for the tort of outrage - which, in essence, is a claim for intentional infliction of emotional distress, see Hume v. Bayer, 178 N.J. Super. 310, 312, 428 A.2d 966, 967 (Law Div. 1981) - to her federal constitutional claim. The County of Camden, Sheriff Simon and Matron Williams assert that various provisions of the New Jersey Tort Claims Act, N.J.S.A. § 59:1-1 et seq., immunize them from liability. We agree.
N.J.S.A. § 59:3-4 provides that "if a public employee acts under the apparent authority of a law that is unconstitutional, invalid, or inapplicable, he is not liable for an injury caused thereby except to the extent that he would have been liable had the law been constitutional, valid, and applicable." Sheriff Simon and Matron Williams therefore are immune from liability to plaintiff; they acted under the apparent authority of an unconstitutional state regulation.
Because the individual defendants are not liable, the county defendant cannot be held liable. See N.J.S.A. § 59:2-2(b) ("A public entity is not liable for an injury resulting from an act or omission of a public employee where the public employee is not liable.") See also Marley v. Borough of Palmyra, 193 N.J. Super. 271, 283, 473 A.2d 554, 560 (Law Div. 1983) ("the availability of public employee immunity may determine the liability of the municipality itself.")
Thus, plaintiff's motion for summary judgment shall be denied with respect to her state law claim against the county defendants.
This matter having come before the Court on a motion by the plaintiff, Deborah Davis, for summary judgment; and
For the reasons set forth in the Court's opinion filed this day; and
For good cause shown;
It is on this 6th day of April, 1987 ORDERED that said motion be and the same is hereby GRANTED IN PART AND DENIED IN PART.
MITCHELL H. COHEN, SENIOR JUDGE UNITED STATES DISTRICT COURT