SANCHEZ v. BONACCHI (2020)

SUMMARY ORDER

Bonacchi, a sergeant with the Oswego Police Department, appeals from a jury verdict in favor of plaintiff German Sanchez and from the denial of Bonacchi’s post-trial motion for judgment as a matter of law under Rule 50(b) of the Federal Rules of Civil Procedure. Sanchez sued Bonacchi under 42 U.S.C. § 1983 for civil rights violations based on a manual body cavity search that Bonacchi conducted incident to his arrest of Sanchez on felony drug charges in February 2013. The jury awarded nominal damages ($1.00) to Sanchez. After the verdict, the District Court denied Bonacchi’s Rule 50(b) motion seeking judgment on qualified immunity grounds. On appeal, Bonacchi argues that the District Court erred in denying qualified immunity as a matter of law because it failed to determine whether the right at issue was clearly established in February 2013 and incorrectly relied on testimonial evidence of Bonacchi’s subjective beliefs about controlling law instead. We assume the parties’ familiarity with the underlying facts and the record of prior proceedings, to which we refer only as necessary to explain our decision to affirm.

We review a district court’s denial of a Rule 50(b) motion de novo. Stevens v. Rite Aid Corp., 851 F.3d 224, 228 (2d Cir. 2017) (quotation marks omitted). We will affirm the denial of a motion for judgment as a matter of law “unless the evidence, viewed in the light most favorable to the [non-moving] party, is insufficient to permit a reasonable juror to find in h[is] favor.” Id. (quotation marks omitted); see also Coffey v. Dobbs Int’l Servs., Inc., 170 F.3d 323, 326 (2d Cir. 1999).

Qualified immunity shields government officials from liability unless “the official violated a statutory or constitutional right” that “was clearly established at the time of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (quotation marks omitted). A right is clearly established if “[t]he contours of [the] right [are] sufficiently clear that every reasonable official would [have understood] that what he is doing violates that right.” Id. at 741, 131 S.Ct. 2074 (quotation marks omitted). The qualified immunity inquiry involves “an objective, not a subjective, test.” In re County of Erie, 546 F.3d 222, 229 (2d Cir. 2008).

In denying qualified immunity, the District Court held in part that, “because Defendant essentially testified that he knew [conducting a manual cavity search] violated Plaintiff’s rights, Defendant is not entitled to qualified immunity.” App’x 247. By relying on Bonacchi’s subjective intent or belief as to the state of the law to determine whether he was entitled to qualified immunity, the District Court erred. See Al-Kidd, 563 U.S. at 736–37, 131 S.Ct. 2074; In re County of Erie, 546 F.3d at 229.

We nonetheless affirm the District Court’s denial of judgment as a matter of law because this Court’s binding opinion in Sloley v. VanBramer, 945 F.3d 30 (2d Cir. 2019), compels that result. Under Sloley, as of 2013, when the search at issue in this case occurred, it was clearly established that a “visual body cavity search conducted as an incident to a lawful arrest for any offense must be supported by a specific, articulable factual basis supporting a reasonable suspicion to believe the arrestee secreted evidence inside a body cavity.” Sloley, 945 F.3d at 38 (quotation marks omitted). A manual body cavity search, which is more intrusive than a visual search, must at minimum be supported by the same reasonable suspicion as a visual cavity search. See Birchfield v. North Dakota, ––– U.S. ––––, 136 S. Ct. 2160, 2176, 195 L.Ed.2d 560 (2016) (stating that whether “a given type of search [is exempt] from the warrant requirement” depends in part on “the degree to which [the search] intrudes upon an individual’s privacy” (quotation marks omitted)); see also Schmerber v. California, 384 U.S. 757, 769–70, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) (observing that “searches involving intrusions beyond the body’s surface” involve heightened “interests in human dignity and privacy”). Because the reasonable suspicion Sloley requires was lacking in this case, Bonacchi was not entitled to qualified immunity, and the District Court did not err in denying his motion for judgment as a matter of law on that ground.¹

We have considered Bonacchi’s remaining arguments and conclude that they are without merit. For the foregoing reasons, we VACATE our prior summary order, and the judgment of the District Court is AFFIRMED.

FOOTNOTES

1.   Because we conclude that, under Sloley, Bonacchi was not entitled to qualified immunity, we need not address Sanchez’s alternative argument that Bonacchi forfeited that defense by failing to move for summary judgment on that ground prior to trial.