Appeal from dismissal of action under 42 U.S.C. § 1983 against county for damages, by subject of strip search, in the United States District Court for the Eastern District of New York, George C. Pratt, Judge . Affirmed.
Before Kaufman, Chief Judge, Smith and Timbers, Circuit Judges.
In this case an unfortunate series of circumstances and the mechanical application of an ill-considered county policy, since abandoned, led to an embarrassing strip search of a woman. Plaintiff Diane Sala had been accused by an individual of harassment, a minor violation in New York's hierarchy of offenses against the public weal, punishable by no more than fifteen days in jail. The summons, however, was mailed to the wrong address, and a warrant was issued for Sala's arrest because of her failure to respond to the misdelivered summons. When Sala was informed that a warrant had been issued, she voluntarily appeared at the Suffolk County Police Department. She was handcuffed and then searched by defendant Loraine Weeks, a correction officer. A "strip search," which included visual inspection of the genital and anal areas, but no contact, was conducted. This procedure was followed with all persons delivered to the custody of the Suffolk County Sheriff's Department at the Suffolk County District Court Detention Facility.
Plaintiff sued in the United States District Court for the Eastern District of New York for violation of her civil rights, 42 U.S.C. § 1983. The court, George C. Pratt, Judge, directed a verdict for the individual defendants, Weeks and County Sheriff Philip E. Corso, and for the County, because of the absence of any proof of a lack of good faith, but granted injunctive relief to pre-arraignment detainees charged with petty offenses, attorney's fees of $15,000 and expenses of trial in the amount of $500 to plaintiff.
No appeal was taken from the grant of injunctive relief, the practice attacked having been abandoned by the County.*fn1 The award of attorney's fees and expenses of trial was appealed, but the appeal was abandoned, and this court dismissed it on February 23, 1979. We have before us only plaintiff Sala's appeal from the dismissal of her action for damages. We find no error in the result reached and therefore affirm the judgment.
The District Court properly directed a verdict for the individual defendants. The Supreme Court has enunciated a limited "good faith" official immunity to actions for damages brought under § 1983. See, E. g., Procunier v. Navarette, 434 U.S. 555, 98 S. Ct. 855, 55 L. Ed. 2d 24 (1978); Wood v. Strickland, 420 U.S. 308, 95 S. Ct. 992, 43 L. Ed. 2d 214 (1975). The immunity standard requires that an individual defendant have acted in both "objective" and "subjective" good faith. Id. at 321-22, 95 S. Ct. 992. The objective element of the test would deny immunity to the defendants if "the constitutional right allegedly infringed by them was clearly established at the time of their challenged conduct, if they knew or should have known of that right, and if they knew or should have known that their conduct violated the constitutional norm." Procunier v. Navarette, supra, 434 U.S. at 562, 98 S. Ct. at 860. The search of plaintiff Sala was conducted on October 9, 1974. We have neither discovered nor been directed to any case which, prior to that time, had held such a search to be a violation of any constitutional right. If the search here did infringe any of Sala's constitutional rights,*fn2 such rights were not "clearly established" at the time of the search.
The subjective element of the good faith test is also satisfied. Sala did not allege that the individual defendants acted with malice, nor was there any proof that they intended "to deprive the plaintiff of a constitutional right or to cause (her) "other injury.' " Id. at 566, 98 S. Ct. at 862.
We therefore affirm the dismissal of the damage claims against Corso and Weeks.
Sala's claim against the County presents a more difficult question. Although § 1983 "creates a species of tort liability that on its face admits of no immunities," Imbler v. Pachtman, 424 U.S. 409, 417, 96 S. Ct. 984, 988, 47 L. Ed. 2d 128 (1976), the Supreme Court has held that the statute "is to be read in harmony with general principles of tort immunities and defenses rather than in derogation of them." Id. at 418, 96 S. Ct. at 989. Such a reading has required the Court to "address how best to reconcile the plaintiff's right to compensation with the need to protect the decisionmaking processes of an executive department." Butz v. Economou, 438 U.S. 478, 503, 98 S. Ct. 2894, 2909, 57 L. Ed. 2d 895 (1978). The result of this balancing has been the formulation of a doctrine of official immunity, which we applied above, that provides government officials with varying degrees of protection against individual liability.
Both Monell v. Department of Social Services, 436 U.S. 658, 701, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978), and Turpin v. Mailet, 579 F.2d 152, 166 (2d Cir.) (En banc ), Vacated on other grounds, 439 U.S. 974, 99 S. Ct. 554, 58 L. Ed. 2d 645 (1978), decision on remand, 591 F.2d 426 (2d Cir. 1979) (En banc ), reserved decision on the scope of any municipal immunity against an action for damages caused by a deprivation of constitutional rights. Sala's claim against the County for damages requires that we begin to deal with this issue.*fn3
The possibility of municipal liability under § 1983 after Monell implicates a number of the same competing concerns which the courts have had to weigh in the cases involving personal liability under § 1983. Our path in balancing these considerations is directed by the Supreme Court's declaration that its decision in Scheuer v. Rhodes, 416 U.S. 232, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974), "was intended to guide the federal courts in resolving this tension (between the individual's right to recover and the public interest in effective government decision making) in the myriad factual situations in which it might arise." Butz v. Economou, supra, 438 U.S. at 503, 98 S. Ct. at 2909.
In Scheuer, supra, 416 U.S. at 240, 94 S. Ct. at 1688, the Court noted that two "mutually dependent rationales" form the basis of the doctrine of official immunity from liability:
(1) the injustice, particularly in the absence of bad faith, of subjecting to liability an officer who is required, by the legal obligations of his position, to exercise discretion; (2) the danger that the threat of such liability would deter his willingness to execute his office with the decisiveness and the judgment required by the public good.
The first of these concerns is in large part peculiar to the context of individual official immunity. The sense of injustice felt at the prospect of holding an individual official liable in damages when he acted reasonably and in good faith is greatly diminished when the liability is to be affixed to a municipality, even if its responsible officials acted reasonably in the light of the then-existing law. Although "we are not insensitive to the financial plight of local governmental bodies" and wish to avoid "needlessly expand(ing) recovery at the expense of already overburdened taxpayers," Turpin ...