Rattray v. Woodbury County, Iowa (908 F. Supp. 2d 976, 2012)

MEMORANDUM OPINION AND ORDER REGARDING DEFENDANT’S MOTIONS FOR RECONSIDERATION AND FOR SUMMARY JUDGMENT

MARK W. BENNETT, District Judge.

TABLE OF CONTENTS

J. INTRODUCTION........................................................980

A. Factual Background.................................................980

B. Procedural Background..............................................981

II. LEGAL ANALYSIS......................................................983

A. Reconsideration Of Summary Judgment In Rattray’s Favor.............983

1. Arguments of the parties .........................................983

2. Reconsideration standards........................................984

3. Analysis ........................................................986

a. The basis for summary judgment in Rattray’s case... .986

b. The decision in Florence........................... .988

c. The effect of Florence on the controlling legal rule ... .992

B. Consideration Of Summary Judgment In The County’s Favor .995

1. Arguments of the parties .................. .995

2. Summary judgment standards............. .997

3. “No reasonable suspicion” claims.......... .997

4. “Manner” claims......................... 1000

a. Rattray’s “manner” claim............. 1001

b. Mathes’s “manner” claim.............. 1002

c. Lambert’s “manner” claim............. 1003

5. Summary ................................ 1004

C. Reconsolidation Of Trials..................... 1004

D. Certification For Interlocutory Appeal.......... 1005

1. Certification pursuant to Rule 54(b)........ 1005

2. Certification pursuant to 28 U.S.C. § 1292(b) 1007

III. CONCLUSION................... 1008

In these consolidated cases, the plaintiffs assert that their Fourth Amendment rights were violated when they were strip searched without reasonable suspicion that they were carrying contraband, upon being booked into the county jail. These cases are back before me on the defendant county’s motions for reconsideration of a prior order granting summary judgment in one plaintiffs favor on her claim and seeking summary judgment in the county’s favor on all of the plaintiffs’ claims in light of the Supreme Court’s decision in Florence v. Board of Chosen Freeholders of the County of Burlington, — U.S. -, 132 S.Ct. 1510, 182 L.Ed.2d 566 (2012). In Florence, the Supreme Court held that every detainee, even one held on a non-indictable offense, who will be admitted to the jail’s “general population” may be required to undergo a close visual inspection while undressed without reasonable suspicion that the detainee is hiding contraband. The county argues that, by reasonable extension, Florence bars the claims of the plaintiffs, because the undisputed facts show that they were likely to have substantial contact with other detainees during their temporary detention, even if they were not admitted to “general population” per se. The plaintiffs argue that Florence is inapplicable, because none of the plaintiffs were admitted to “general population” in the jail, so that circuit precedent requiring reasonable suspicion to strip search detainees still prevails in their circumstances.

I. INTRODUCTION

A. Factual Background

As is my usual practice, I set forth here only those facts, disputed and undisputed, sufficient to put in context the parties’ arguments concerning the defendant’s motions for summary judgment. Unless otherwise indicated, the facts recited here are undisputed, at least for purposes of summary judgment. I will discuss additional factual allegations, and the extent to which they are or are not disputed or material, if necessary, in my legal analysis.

In the early morning hours of August 19, 2006, Maureen Rattray, the original plaintiff in this action, was arrested on a serious misdemeanor charge of operating while intoxicated — first offense, in violation of Iowa Code § 321J.2. She was taken to the Woodbury County Jail, where she was strip searched in accordance with a then-existing jail policy that required all persons booked on charges of a serious misdemeanor or greater to be strip searched. The strip search was not based on any reasonable suspicion analysis of whether Rattray might be carrying contraband. Rattray contends that the strip search involved more than a visual body inspection, as it included improper touching and other aggravating circumstances that were not part of the jail policy. After the strip search, Rattray was escorted to a temporary holding cell under what she also argues were aggravating circumstances. At no time did Rattray share a cell with any other detainee, nor was she ever admitted to the jail’s “general population.” This was so, because detainees were not admitted to the jail’s “general population” during the first twenty-four hours of their detention. On the morning of August 19, 2006, several hours after her arrest, Rat-tray was shackled with other detainees and escorted to court for an initial appearance and arraignment before a magistrate judge. The trip to court was Rattray’s only interaction with other detainees during her detention. Rattray was released from jail on August 19, 2006, soon after her arraignment.

Plaintiffs Lisa Lambert and Lori Mathes, the plaintiffs in additional actions consolidated with Rattray’s, were also arrested on serious misdemeanor charges. Lambert was arrested on March 17, 2007, on a charge listed on her booking sheet as serious domestic assault. Mathes was arrested on May 7, 2007, on a charge of possession of marijuana. Like Rattray, both were taken to the Woodbury County Jail for booking and both were strip searched pursuant to the then-existing jail policy. Neither strip search was based on any reasonable suspicion analysis of whether either might be carrying contraband. The parties dispute whether Lambert and Mathes were subjected only to visual body inspections, or to visual cavity searches, and other circumstances of the strip searches. During the search of Lambert, officers discovered a small knife. Lambert and Mathes were taken to temporary holding cells after the searches.

The County contends, and the plaintiffs dispute, that detainees may potentially be housed with other detainees upon their initial admission to the jail; that it is not uncommon for detainees to be “doubled up” in a holding cell, depending on the number of arrests that have occurred during the period of detention; and that the need to house detainees with other detainees can change rapidly, because of the limited number of holding cells at the jail. Like Rattray, Mathes never shared a holding cell with another detainee, and neither Lambert nor Mathes was ever admitted to the “general population” at the jail, because neither was held for more than twenty-four hours. However, in their briefing, the County contends, and Lambert admits, that she shared a holding cell with other detainees (at least two, and possibly “several”) during the night. The parties agree that, like Rattray, Mathes was handcuffed with other detainees (in Mathes’s case, eight other detainees) when she was transported to court for her initial appearance. The parties have not indicated in their respective statements of fact whether Lambert was handcuffed with other detainees for transportation to court for her initial appearance. Like Rattray, Lambert and Mathes were both released shortly after their arraignments — in Lambert’s case, the day after her arrest, and in Mathes’s case, the same day as her arrest.

B. Procedural Background

The procedural history for this case is long and convoluted. Some of it has been addressed in prior published rulings. See Rattray v. Woodbury Cnty., Iowa, 253 F.R.D. 444 (N.D.Iowa 2008) (denying class certification after consolidation of separate actions by plaintiffs Rattray, Mathes, and Lambert, and assertion of class claims), aff'd, 614 F.3d 831 (8th Cir.2010); Rattray v. Woodbury Cnty., Iowa, 754 F.Supp.2d 1023 (N.D.Iowa 2010) (granting in part and denying in part the plaintiffs’ motion for summary judgment). Suffice it to say, for present purposes, that the plaintiffs asserted claims that their strip searches without reasonable suspicion violated the Fourth and Fourteenth Amendments to the United States Constitution, and that I declined to certify the action as a class action on behalf of a class of similarly-situated persons. However, I did grant summary judgment in plaintiff Rattray’s favor on her claim of liability for violating her rights, and severed her damages claim for a separate trial before the trial of Lambert’s and Mathes’s liability and damages claims.

In the midst of preparations for Rat-tray’s damages trial, the parties agreed to dismissal of the claims against the individual defendants, so that Rattray’s claims proceeded to trial only against the County. A jury awarded Rattray substantial damages on her claim on January 20, 2011, see Verdict Form (docket no. 132); Amended Verdict Form (docket no. 133), but, owing to seriously problematic circumstances surrounding the jury’s damages awards, I granted the County’s Motion For New Trial (docket no. 144) by Order (docket no. 147), filed March 7, 2011, 788 F.Supp.2d 839 (N.D.Iowa 2011).

This case was then stayed during the pendency, before the Supreme Court, of Florence v. Board of Chosen Freeholders of the County of Burlington, 621 F.3d 296 (3d Cir.2010), petition for cert. filed, 2011 WL 220710 (Jan. 19, 2011), cert. granted, — U.S. -, 131 S.Ct. 1816, 179 L.Ed.2d 772 (2011), aff'd, — U.S. -, 132 S.Ct. 1510, 182 L.Ed.2d 566 (2012). I entered an Order (docket no. 164) on May 2, 2012, lifting the stay and directing the parties to file a proposed Scheduling Order establishing deadlines and trial readiness dates for a retrial on Rattray’s damages claim and a trial on Lambert’s and Mathes’s liability and damages claims that would provide for the prompt and efficient disposition in each case. By Order (docket no. 173), dated July 3, 2012, Rattray’s damages claim was set for retrial on March 11, 2013, and by Order (Case No. C 08^4008, docket no. 17, and Case No. C 08^4032-MWB, docket no. 14), dated July 3, 2012, Lambert’s and Mathes’s liability and damages claims were set for trial on April 22, 2013.

On September 28, 2012, the new deadline for dispositive motions, the County filed its Motion To Reconsider Ruling On Rattray’s Motion For Partial Summary Judgment And [Its] Motion For Partial Summary Judgment (docket no. 176) and also filed its Motion For Summary Judgment Regarding Mathes And Lambert (docket no. 177). In those Motions, the County argues that the Supreme Court’s decision in Florence not only requires that I reconsider my order granting summary judgment on liability in favor of Rattray, but that I now grant summary judgment in the County’s favor on all three plaintiffs’ claims that a strip search of detainees without reasonable suspicion violates the Fourth and Fourteenth Amendment. Rat-tray filed her Resistance (docket no. 181) to the County’s Motion, as to her, on October 31, 2012, and Lambert and Mathes filed their Resistance (docket no. 182) to the County’s Motion, as to them, on November 1, 2012. The County filed Replies (docket nos. 183 and 184) in further support of its Motions on November 7, 2012.

The County requested oral arguments on its Motions. Because my crowded schedule has not permitted the timely scheduling of such oral arguments, and I find that the parties have thoroughly briefed the issues, I will consider the Motions fully submitted on the written submissions.

II. LEGAL ANALYSIS

Although the central issue in both of the County’s Motions is the impact of Florence., that issue is raised in somewhat different procedural contexts as to Rattray, on the one hand, and as to Lambert and Mathes, on the other. Specifically, the County seeks reconsideration of my prior summary judgment ruling in Rattray’s favor on her “no reasonable suspicion” strip-search claim, but there is no summary judgment ruling in favor of Lambert and Mathes to set aside. The County also seeks summary judgment or partial summary judgment in its favor on all three plaintiffs’ strip-search claims.. In a footnote in its brief supporting its motion as to Rattray, the County acknowledges that a factual question exists regarding the “manner” in which Rattray’s strip search was conducted, not simply that a strip search was done with “no reasonable suspicion.” Consequently, the County explains that it is only seeking partial summary judgment on Rattray’s claims. There is no such limitation on the County’s Motion For Summary Judgment on Lambert’s and Mathes’s claims. Nevertheless, I read Lambert’s and Mathes’s Resistance to suggest that they believe that they also have both “no reasonable suspicion” and “manner” strip-search claims. There is, thus, considerable overlap of the issues as to whether or not the County is entitled to summary judgment in its favor on any of the plaintiffs’ claims. Therefore, I will first consider, separately, whether the Florence decision requires me to reconsider and withdraw my grant of summary judgment in favor of Rattray on her “no reasonable suspicion” strip-search claim. I will then consider whether the County is entitled to summary judgment in its favor on one or more of plaintiffs’ strip-search claims.

A. Reconsideration Of Summary Judgment In Rattray’s Favor

1. Arguments of the parties

The County argues that, while there was a split in the circuits prior to Florence as to the constitutionality of a strip search of detainees without reasonable suspicion, the Supreme Court determined in Florence that the Fourth Amendment does not require reasonable suspicion before a detainee is strip searched for non-indictable offenses. Thus, the County argues, no constitutional violation occurs simply because a strip .search of a detainee was conducted absent reasonable suspicion. The County points out that I previously granted summary judgment on liability in Rattray’s favor precisely on the ground that she was strip searched without reasonable suspicion, so that it is no longer appropriate to let that ruling stand. The County argues that this is so, even though the Supreme Court did not specifically address cases where a detainee might be detained in a holding area and not admitted into “general population” of a jail, because the Court’s rationale concerning the risks of failing to discover contraband should apply to detention situations in which detainees have substantial contact with other detainees. The County also argues that Rattray cannot generate any genuine issue of material fact that the strip-search policy was an unnecessary or unjustified response to problems of jail security. The County argues that this is so, because detainees at the County Jail are potentially housed with other detainees upon initial admission into the jail, as circumstances may require “doubling up” in holding cells, and after placement in temporary holding, detainees are not searched again before being shackled with other detainees and transported to the courtroom for their initial appearances.

Rattray argues that Florence simply does not apply here, so that there has been no intervening change in controlling law. Rattray reads the Supreme Court’s decision to limit the issue before the Court to be whether detainees who mil be admitted to the general population of a jail may be required to undergo a close visual inspection while undressed. She also reads the concurring opinions to painstakingly limit the Court’s holding to detainees admitted to “general population” and to avoid a rule barring a reasonable suspicion requirement in other circumstances. She contends that there is no dispute that at no time was she a detainee who would be admitted to the “general population,” because detainees at the County Jail were not admitted to “general population” during their first twenty-four hours of detention, and she was never required to share a holding cell. Indeed, she asserts baldly that she did not have substantial contact with other detainees. She also argues that her strip search was more invasive than the visual body inspection at issue in Florence. Thus, she argues that the facts in her case fall squarely within the particularized series of cases to which the Supreme Court unequivocally said its holding in Florence did not extend. Therefore, she argues that there was no intervening change in controlling law and that my pri- or grant of summary judgment in her favor was not clearly or manifestly erroneous.

In reply, the County asserts that, contrary to Rattray’s reading, the main issue in Florence was whether undoubted security imperatives involved in jail supervision override the assertion that some detainees must be exempt from the more invasive search procedures at issue, that is, strip searches without touching by jail officers, absent reasonable suspicion of a concealed weapon or other contraband. The County argues that, with that issue foremost, the Supreme Court concluded that the detection of contraband was so critical to jail security that the imposition of a complicated constitutional scheme prior to conducting a strip search of detainees would be unmanageable. The County argues that Rattray has failed to generate a genuine issue of material fact that the strip search was an exaggerated response to jail security issues. The County also argues that Rattray mistakenly focuses on the “general population” language in Florence, instead of on the “substantial contact” with other detainees rationale for that decision.

2. Reconsideration standards

In Kirt v. Fashion Bug # 3252, Inc., 495 F.Supp.2d 957 (N.D.Iowa 2007), I addressed a district court’s authority to reconsider an order granting summary judgment, as follows:

This court has previously found that Rule 54(b) of the Federal Rules of Civil Procedure provides authority for a court to reconsider any interlocutory order, including a prior ruling on a motion for summary judgment. Doctor John’s, Inc. v. City of Sioux City, Iowa, 467 F.Supp.2d 925, 931 (N.D.Iowa 2006); Wells’ Dairy, Inc. v. Travelers Indemni ty Company of Illinois, 386 F.Supp.2d 906, 909 (N.D.Iowa 2004) (citing cases). Specifically, Rule 54(b) provides that, unless the court certifies the order for interlocutory appeal, “any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.” Fed. R.Civ.P. 54(b) (emphasis added). Moreover, this court has repeatedly held that it has the inherent power to reconsider and revise any interlocutory order, such as a summary judgment ruling, up until the time that a final judgment is entered. Wells’ Dairy, Inc., 336 F.Supp.2d at 909 (citing Kaydon Acquisition Corp. v. Custum Mfg., Inc., 317 F.Supp.2d 896, 903 (N.D.Iowa 2004); Helm Financial Corp. v. Iowa N. Ry. Co., 214 F.Supp.2d 934, 999 (N.D.Iowa 2002); and Longstreth v. Copple, 189 F.R.D. 401, 403 (N.D.Iowa 1999)).

Kirt, 495 F.Supp.2d at 964-65. Rattray does not dispute my authority to reconsider the order granting summary judgment in her favor on her “no reasonable suspicion” strip-search claim, and I reiterate my conclusion in Kirt and other decisions that I have such authority.

In Kirt, I also considered the standards applicable to reconsideration of a summary judgment ruling pursuant to Rule 54(b), as follows:

This court has also noted, “The exact standard applicable to the granting of a motion under Rule 54(b) is not clear, though it is typically held to be less exacting than would be [applicable to] a motion under Federal Rule of Civil Procedure 59(e), which is in turn less exacting than the standards enunciated in Federal Rule of Civil Procedure 60(b).” [Wells’ Dairy, 336 F.Supp.2d at 909.] Although the standards for reconsideration of interlocutory orders may be less “exacting” than the standards for reconsideration of final orders under Rules 59(e) and 60(b), this court has nevertheless held that it should look to the general principles under Rules 59(e) and 60(b) for guidance when reconsidering a summary judgment ruling pursuant to Rule 54(b). Id. (citing Bragg v. Robertson, 183 F.R.D. 494, 496 (S.D.W.Va. 1998)).

Kirt, 495 F.Supp.2d at 965.

Looking for such guidance in Kirt, I noted that, “[u]nder Rule 59(e), a judgment may be amended to correct ‘clearly’ or ‘manifestly’ erroneous findings of fact or conclusions of law.” Id. I now note that Rule 60(b)(5) also provides relief “from a final judgment,” inter alia, if “applying it prospectively is no longer equitable.” Fed. R.CrvP. 60(b)(5) (emphasis added). The Eighth Circuit Court of Appeals has explained that “[w]hen prospective relief is at issue, a change in decisional law provides sufficient justification for Rule 60(b)(5) relief,” Prudential Ins. Co. of Am. v. National Park Med. Ctr., Inc., 413 F.3d 897, 903 (8th Cir.2005) (emphasis added), but that court has also explained that “ ‘[a] change in the law following a judgment does not merit relief under Rule 60(b)(5),’ ” In re Racing Servs., Inc., 571 F.3d 729, 732 (8th Cir.2009) (emphasis added) (quoting 12 Moore’s Federal Practice at § 60.46[2]); see also Kansas Public Employees Retirement Sys. v. Reimer & Koger Assocs., Inc., 194 F.3d 922, 925 (8th Cir.1999) (concluding that a change in the law that would have governed the dispute, had the dispute not already been decided, is not by itself an: “extraordinary” or “exceptional” eircumstance warranting relief under Rule 60(b)(6)). Even in the circumstance of a final judgment providing prospective' relief, such as a consent decree for injunctive relief, there must be an intervening controlling decision that actually changes the law in a way applicable to the case. Compare White v. National Football League, 585 F.3d 1129, 1136-37 (8th Cir.2009) (concluding that an intervening Supreme Court decision addressed a different issue, so that it was inapposite, and its rationale also did not apply to the context of the litigation before the court), with Prudential Ins. Co., 413 F.3d at 905 (concluding that “not only was there a substantial subsequent change in the law but also the movant’s original decision not to file a writ of certiorari was reasonable because the Supreme Court had recently declined to consider similar issues in two cases”).

I believe that the Rule 60(b)(5) “change in the law” standard for a final order granting prospective relief provides guidance for reconsideration pursuant to Rule 54(b) of an interlocutory order granting summary judgment, because continuing to rely on superseded law in a pending case, as in a case involving prospective relief, “is no longer equitable.” Cf. Fed.R.Civ.P. 60(b)(5). Although the" Eighth Circuit Court of Appeals has not expressly done so, other Circuit Courts of Appeals have expressly recognized that reconsidering the grant or denial of summary judgment in light of an intervening change in controlling law is appropriate, pursuant to either Rule 59 or Rule 60. See, e.g., Nolfi v. Ohio Ky. Oil Corp., 675 F.3d 538, 551-52 (6th Cir.2012) (citing Leisure Caviar, LLC v. U.S. Fish & Wildlife Serv., 616 F.3d 612, 615 (6th Cir.2010), and Rule 59); McQuillion v. Duncan, 342 F.3d 1012, 1014 (9th Cir.2003) (concluding that reconsideration of an order granting summary judgment pursuant to a 59(e) motion requires new evidence, a change in the law, or a clearly erroneous decision); Fernandez v. Bankers Nat’l Life Ins. Co., 906 F.2d 559, 569 (11th Cir.1990) (noting that a district court may reconsider a denial of a motion for summary judgment pursuant to Rule 60(b) when there has been “an intervening change in controlling law”) (citation omitted).

Therefore, I conclude that an intervening change in controlling law is sufficient to reconsider and set aside an interlocutory order granting summary judgment.

3. Analysis

a. The basis for summary judgment in Rattray’s case

To determine whether or not Florence is a change in controlling law, I must first review the basis on which I granted summary judgment in favor of Rattray on her unlawful strip-search claim. In their summary judgment motions, the plaintiffs sought summary judgment on four issues:

(1) that the defendants’ strip search policy was facially unconstitutional; (2) that the individual defendants, the sheriff and assistant chief deputy sheriff, are not entitled to qualified immunity in this case; (3) that the defendants conducted the strip searches in question pursuant to the defendant county’s unconstitutional “blanket” strip search policy and, therefore, have the burden to establish post hoc reasonable suspicion for each search to avoid liability; and (4) that the defendants have failed to generate genuine issues of material fact concerning reasonable suspicion, even post hoc, to support the strip searches of the plaintiffs.

Rattray, 754 F.Supp.2d at 1025-26. However, I denied the plaintiffs’ request for summary judgment on the first and third questions, “as moot, as unnecessary to the resolution of the case, and as an- unnecessary determination of constitutional questions,” where the jail policy was no longer in place. Id. at 1028 (summary); see also id. at 1027-28 (analysis).

Next, as to the second question on which the plaintiffs sought summary judgment, I determined,

[T]he proper questions for purposes of determining qualified immunity in this case are whether it was clearly established that a misdemeanor arrestee has a constitutional right under the Fourth Amendment not to be strip searched in the absence of reasonable suspicion and whether the officers conducted the strip searches of these arrestees without reasonable suspicion, thus violating their constitutional rights.

Rattray, 754 F.Supp.2d at 1028-29 (emphasis added). I then addressed those questions in turn.

As to the first of these dispositive questions, I found as follows:

[A]t the time of the strip searches at issue here, it was clearly established that a strip search without reasonable suspicion violates a misdemeanor arrestee’s constitutional rights. See Jones v. Edwards, 770 F.2d 739, 741-42 (8th Cir. 1985) (finding a strip search of an arrestee violated the Fourth Amendment where authorities had no reasonable suspicion of concealed weapons or contraband); see also Smook v. Minnehaha County, 457 F.3d 806, 813 (8th Cir.2O06) (“Our court, like many others, had concluded that a strip search of adult offenders without individualized suspicion was unreasonable, but those cases did not consider the different interests involved when the State has responsibility to act in loco parentis [as to juvenile offenders].”). The only authority to the contrary offered by the defendants is Powell v. Barrett, 541 F.3d 1298 (11th Cir.2008), but that decision is both not controlling, because it is out-of-circuit, and after the fact, as it was handed down after the Department had already changed its policy to require reasonable suspicion for strip searches, so it could not have caused any confusion about the constitutionality of the defendants’ conduct

Rattray, 754 F.Supp.2d at 1029. Therefore, I concluded that the plaintiffs were entitled to summary judgment on the first question, whether it was clearly established that a misdemeanor arrestee has a constitutional right under the Fourth Amendment not to be strip searched in the absence of reasonable suspicion.

I considered the second question separately as to Rattray, on the one hand, and Lambert and Mathes, on the other. See id. at 1029-32. I concluded “that the defendants ha[d] failed to generate any genuine issues of material fact that the strip search of plaintiff Rattray could have been justified, post hoc, by reasonable suspicion.” Id. at 1029. More specifically, I concluded,

[T]he defendants ha[d] made no showing, even post hoc, that officials responsible for strip searching plaintiff Rattray based (or could have based) the strip search on specific objective facts and rational inferences that they were entitled to draw from the facts known to them, in light of their experience, to establish the required individualized, reasonable suspicion specifically directed to plaintiff Rattray. McDonell [v. Hunter], 809 F.2d [1302,] 1307 [(8th Cir.1987) ]. Although the officers may be entitled to show that they could have based a strip search on reasonable suspicion, logically, such reasonable suspicion would have to be based on what the officers did know at the time of the strip search, not what they could have known, but did not.

Rattray, 754 F.Supp.2d at 1030 (emphasis in the original). Moreover, I concluded that Rattray was not only entitled to summary judgment that the individual defendants did not have qualified immunity, but on. her claim “that the defendants violated her Fourth Amendment right to be free from a strip search in the absence of reasonable suspicion.” Id. at 1030. These conclusions meant that “the only remaining issue as to plaintiff Rattray’s claims pertains to what, if any, damages she is entitled to receive for the violation of her constitutional rights.” Id. at 1031.

In short, the only question of violation of Fourth Amendment rights that I addressed on summary judgment was whether a misdemeanor arrestee’s Fourth Amendment rights are violated by a strip search not based on reasonable suspicion. I did not address any claim that an otherwise constitutionally permissible strip search — that is, one based on reasonable suspicion — could be conducted in a manner that would nevertheless violate a detainee’s Fourth Amendment right to be free from unreasonable searches. I also based my conclusion that a strip search of a misdemeanor arrestee without reasonable suspicion violated the Fourth Amendment on then-controlling Eighth Circuit precedent, specifically, Jones, 770 F.2d at 741-42, which stated a blanket rule that a, strip search of an adult detainee requires reasonable suspicion.

b. The decision in Florence

Next, I must determine whether Florence is an intervening change in the law— that is, whether it is an intervening controlling decision that actually changes the law in a way applicable to Rattray’s case— such that I should reconsider my summary judgment ruling on Rattray’s claim pursuant to Rule 54(b). See, supra, at 11. As indicated above, at the time of my ruling on Rattray’s motion for summary judgment, controlling circuit precedent held that a strip search of an adult offender without individualized, reasonable suspicion that the arrestee was- concealing weapons or contraband was unreasonable and violated the Fourth Amendment. See Rattray, 754 F.Supp.2d at 1029 (citing Jones, 770 F.2d at 741-42, and Smook, 457 F.3d at 813). It is clear to me that Florence overruled this circuit’s complete prohibition on strip searches of adult arrestees without reasonable suspicion.

In my view, Rattray — and to a lesser degree, the County — has failed to differentiate the extent to which the Florence decision changed the law from the extent to which it changed relevant factual considerations to determine whether an unconstitutional strip search occurred in a specific instance. To put it another way, Rattray, in particular, has mistaken the fact-specific holding in Florence for a statement of the rule established in Florence. I will attempt to demonstrate the difference between changing the law and changing relevant factual considerations in my explanation of the Florence decision.

In Florence, the Court specifically explained the meaning of “strip search” as it was used in the opinion:

The opinions in earlier proceedings, the briefs on file, and some cases of this Court -refer' to a;, “strip search.” The term is imprecise. It may refer simply to the instruction to remove clothing while an officer observes from a distance of, say, five feet or more; it may mean a visual inspection from a closer, more uncomfortable distance; it may include directing detainees to shake their heads or to run their hands through their hair to dislodge what might be hidden there; or it may involve instructions to raise arms, to display foot insteps, to expose the back of the ears, to move or spread the buttocks or genital areas, or to cough in a squatting position. In the instant case, the term does not include any touching of unclothed areas by the inspecting officer. There are no allegations that the detainees here were touched in any way as part of the searches.

Florence, 132 S.Ct. at 1515 (emphasis added) (subsequently describing the kind of search procedures addressed in the opinion as “visual search procedures”); Id. at 1520 (noting that the petitioner acknowledged “that corrections officials must be allowed to conduct an effective search during the intake process and that this will require at least some detainees to lift their genitals or cough in a squatting position”). The separate opinions of the justices in the majority all appear to adhere to this definition of the kind of “strip search” at issue. See Id. at 1522-23 (Kennedy, J., writing for a plurality) (distinguishing the “types of searches at issue here” from more “invasive” searches); id. at 1524 (Alito, J., concurring) (describing the strip searches to which the Court’s ruling applied as involving “visual inspection” of nude detainees, during which “the arrestees may be required to manipulate their bodies”). Thus, it is clear that, whatever the scope of the rule in Florence may be, it does not address the reasonableness of a strip search of detainees that involves “any touching of unclothed areas by the inspecting officer.”

The plaintiffs here are correct that, in Florence, the Court “proceeded] on the understanding that the officers searched detainees prior to their admission to the general population.” 132 S.Ct. at 1515; see also id. at 1513 (noting that, “in broad terms, the controversy concerns whether every detainee who will be admitted to the general population may be required to undergo a close visual inspection while undressed”); id. at 1515 (noting, “The Federal Courts of Appeals have come to differing conclusions as to whether the Fourth Amendment requires correctional officials to exempt some detainees who will be admitted to a jail’s general population from the searches at issue [visual body inspections while undressed]”). However, whether detainees to be admitted to the general population could be strip searched without reasonable suspicion was not how the Court ultimately framed either the split in the circuits that it was called upon to resolve or the specific question before it.

Rather, the Court ultimately framed the split in the circuits as follows:

Atwater [v. Lago Vista, 532 U.S. 318, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001),] did not address whether the Constitution imposes special restrictions on the searches of offenders suspected of committing minor offenses once they are taken to jail. Some Federal Courts of Appeals have held that corrections officials may not conduct a strip search of these detainees [i.e., offenders suspected of committing minor offenses once they are taken to jail], even if no touching is involved, absent reasonable suspicion of concealed contraband. 621 F.3d, at 303-304, and n. 4. The Courts of Appeals to address this issue in the last decade, however, have come to the opposite conelusion. See 621 F.3d 296 (case below); Bame v. Dillard, 637 F.3d 380 (C.A.D.C. 2011); Powell [v. Barrett, 541 F.3d 1298 (11th Cir.2008) ]; Bull [v. City and Cnty. of San Francisco, 595 F.3d 964 (9th Cir.2010) ].

Florence, 132 S.Ct. at 1518 (emphasis added). Thus, the Court identified the split without reference to whether or not the arrestees were to be admitted to “general population,” but only with reference to the severity of their offenses. Among the decisions identified by the Third Circuit Court of Appeals in the decision below as holding that correctional officials may not conduct a strip search of detainees held on minor offenses absent reasonable suspicion was the decision of the Eighth Circuit Court of Appeals in Jones, 770 F.2d at 741-42, on which I had relied in granting summary judgment in favor of Rattray. See Florence, 621 F.3d at 304 n. 4.

Not only did the Court identify the split in the circuits without reference to whether or not the arrestees were to be admitted to general population, but the Court explained that “[t]he current case is set against this precedent and governed by the principles announced in Turner [v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987),] and Bell [v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979)].” Florence, 132 S.Ct. at 1518. The Court had previously explained that Turner, Bell, and other precedents, including Block v. Rutherford, 468 U.S. 576, 104 S.Ct. 3227, 82 L.Ed.2d 438 (1984), “establish that correctional officials must be permitted to devise reasonable search policies to detect and deter the possession of contraband in their facilities.” Id. at 1517. Consequently, the Court explained,

The question here is whether undoubted security imperatives involved in jail supervision override the assertion that some detainees must be exempt from the more invasive search procedures at issue [i.e., strip searches not involving touching by inspecting officers] absent reasonable suspicion of a concealed weapon or other contraband.

Florence, 132 S.Ct. at 1518 (emphasis added). Again, whether or not the detainees would be admitted to general population did not figure in the Court’s framing of the question. Rather, the question framed by the Court was whether strip searches of some detainees, identified as those suspected of committing minor offenses who were taken to jail, required reasonable suspicion. Indeed, Chief Justice Roberts pointed out in his concurring opinion that “before this Court Florence challenged suspicionless strip searches ‘no matter what the circumstances.’ ” Id. at 1523 (Roberts, C.J., concurring) (citing Pet. for Cert. i.).

Having framed the question in this way, the Court then determined the appropriate standard to answer it, in light of Turner, Bell, and Block:

The Court has held that deference must be given to the officials in charge of the jail unless there is “substantial evidence” demonstrating their response to the situation is exaggerated. Block, 468 U.S. at 584-585, 104 S.Ct. 3227 (internal quotation marks omitted).

Florence, 132 S.Ct. at 1518. The Court concluded that “[pjetitioner has not met this standard, and the record provides full justifications for the procedures used.” Id.

More specifically, the Court found that “[correctional officials have a significant interest in conducting a thorough search as a standard part of the intake process,” in order to detect lice or contagious infections, wounds or other injuries, gang affiliation, and contraband, including drugs and weapons, but also including unauthorized items that might become objects of trade or that could be used as weapons or to make weapons. Id. at 1518-20. The Court concluded,

It is not surprising that correctional officials have sought to perform thorough searches at intake for disease, gang affiliation, and contraband. Jails are often crowded, unsanitary, and dangerous places. There is a substantial interest in preventing any new inmate, either of his own will or as a result of coercion, from putting all who live or work at these institutions at even greater risk when he is admitted to the general population.

Florence, 132 S.Ct. at 1520.

Next, the Court rejected the petitioner’s argument that “there is little benefit to conducting these more invasive steps [such as a strip search] on a new detainee who has not been arrested for a serious crime or for any offense involving a weapon or drugs,” and that such detainees “should be exempt from this process unless they give officers a particular reason to suspect them of hiding contraband.” Id. Notable by its absence is any reference in this argument for an exemption to any detainees who would not be admitted to “general population.” The Court concluded that it was reasonable for jail officials to conclude that such an exemption would be “unworkable,” that “the seriousness of the offense is a poor predictor of who has contraband and that it would be difficult in practice to determine whether individual detainees fall within the proposed exemption.” Id.; see also id. at 1520-22 (explaining why this is so). After detailed consideration, the Court concluded, “The restrictions suggested by petitioner would limit the intrusion on the privacy of some detainees but at the risk of increased danger to everyone in the facility, including the less serious offenders themselves.” Id. at 1522.

Ultimately, the Court concluded that, assuming all facts in favor of the petitioner, the search procedures at issue “struck a reasonable balance between inmate privacy and the needs of the institutions” and that “[t]he Fourth and Fourteenth Amendments do not require adoption of the framework of rules petitioner proposes.” Id. at 1523. •

In their dispute about the impact of the Florence decision, the parties here have focused a great deal of attention on the various opinions offered by justices making up the majority. In Florence, Justice Kennedy wrote for a 5-4 majority of the Court; Justice Scalia joined in Justice Kennedy’s opinion in its entirety; Justice Thomas joined in all but Part IV of Justice Kennedy’s opinion; Chief Justice Roberts and Justice Alito each wrote separate concurring opinions, but joined in Justice Kennedy’s opinion in its entirety; and Justice Breyer wrote a dissent joined in by Justices Ginsburg, Sotomayor, and Kagan.

In Part IV, Justice Kennedy, writing for a plurality, opined, “This case does not require the Court to rule on the types of searches that would be reasonable in instances where, for example, a detainee will be held without assignment to the general jail population and without substantial contact with other detainees,” and that “[t]he accommodations provided in these situations may diminish the need to conduct some aspects of the searches at issue.” Id. at 1522-23 (Kennedy, J., for. a plurality). Justice Kennedy also asserted,

The circumstances before the Court, however, do not present the opportunity to consider a narrow exception of the sort Justice ALITO describes, post, at 1524-Í525 (concurring opinion), which might restrict whether an arrestee whose detention has not yet been reviewed by a magistrate or other judicial officer, and who can be held in available facilities removed from the general population, may be subjected to the types of searches at issue here.

Florence, 132 S.Ct. at 1523 (Kennedy, J., for a plurality). Finally, Justice Kennedy concluded that circumstances identified by the amici, involving intentionally humiliating and abusive practices or touching, “are not implicated on the facts of this case ... and it is unnecessary to consider them here.” Id.

Chief Justice Roberts joined in the majority opinion, but stated that “it is important to me that the Court does not foreclose the possibility of an exception to the rule it announces.” Id. (Roberts, C.J., concurring). He explained, “The Court makes a persuasive case for the general applicability of the rule it announces. The Court is nonetheless wise to leave open the possibility of exceptions, to ensure that we not embarrass the future.” Id. (internal quotation marks and citation omitted). Justice Alito' concurred, “but emphasize[d] the limits of [the Court’s] holding.” Id. at 1524 (Alito, J., concurring). In his view, the Court held only “that jail administrators may require all arrestees who are committed to the general population of a jail to undergo visual strip searches not involving physical contact by corrections officers.” Id. (emphasis in the original). As Justice Kennedy indicated, Justice Ali-to asserted that the Court was not holding that “it is always reasonable to conduct a full strip search of an arrestee whose detention has not been reviewed by a judicial officer and who could be held in available facilities apart from the general population.” Id. (emphasis in the original); see also id. at 1525 (“The Court does not address whether it is always reasonable, without regard to the offense or the reason for detention, to strip search an arrestee before the arrestee’s detention has been reviewed by a judicial officer.”).

c. The effect of Florence on the controlling legal rule

Considering the separate opinions in Florence by Justice Kennedy and the concurring justices, it is clear that the Court did not hold that a strip search of a detainee never requires reasonable suspicion. See id. at 1524 (Alito, J., concurring) (“It is important to note, however, that the Court does not hold that it is always reasonable to conduct a full strip search of an arrestee whose detention has not been reviewed by a judicial officer and who could be held in available facilities apart from the general population.” (emphasis in the original)); id. at 1525 (“The Court does not address whether it is always reasonable, without regard to the offense or the reason for detention, to strip search an arrestee before the arrestee’s detention has been reviewed by a judicial officer.”). Nevertheless, it is also clear that the Court overruled those decisions holding that a strip search of an adult detainee always requires reasonable suspicion, such as the Eighth Circuit decision in Jones on which I relied in my ruling on Rattray’s summary judgment motion. This is so, because the Court framed the question as “whether undoubted 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 weapon or other contraband,” and answered that question yes, thereby establishing a general rule that reasonable suspicion is not required to strip search detainees, but acknowledging the possibility of exceptions. Id. at 1518 (Kennedy, J., for the majority) (emphasis added). Indeed, Justice Kennedy acknowledged the possibility of “exceptions,” but explained that he did not believe that the circumstances permitted the Court to consider the “narrow exception” suggested by Justice Alito. Id. at 1522-23. Similarly, Chief Justice Roberts referred to both the “general applicability of the rule” and the Court’s acknowledgment of possible “exceptions.” See id. at 1523 (Roberts, C.J., concurring).

This is the rule and the change in the law wrought by the Florence decision: Reasonable suspicion is not required to strip search detainees, subject to possible, but as-yet not fully defined, exceptions.

Rattray asserts, to the contrary, that the only circumstance in which Florence holds that reasonable suspicion for a strip search of a detainee is not required is where the detainee is committed to the “general population” of a jail, but that circuit precedent holding that reasonable suspicion is required for a strip search applies in every other context. Rattray is right about the limits of the holding in Florence, but she is wrong about the limits of the rule stated in Florence.

Justice Alito, whose vote was necessary to establish a majority of the Court, did “emphasize the limits of [the Court’s] holding,” which, in his view, was only “that jail administrators may require all arrestees who are committed to the general population of a jail to undergo visual strip searches not involving physical contact by corrections officers,” but that the Court’s holding did not address, for example, what was required to strip search “arrestee[s] whose detention has not been reviewed by a judicial officer and who could be held in available facilities apart from the general population.” Id. at 1524 (emphasis in the original). This holding addressed the only factual circumstance then before the Court. Similarly, both of the other opinions by justices in the majority recognized that there might be factual circumstances in which a strip search without reasonable suspicion would not be reasonable. See id. at 1522-23 (Kennedy, J., Part IV, writing for a plurality) (identifying circumstances that might require reasonable suspicion as instances where “a detainee will be held without assignment to the general jail population and without substantial contact with other detainees”); id. at 1523 (Roberts, C.J., concurring) (noting that it was important to him that the Court did not foreclose “exceptions” involving circumstances different from Florence’s, which were that Florence “was detained not for a minor traffic offense but instead pursuant to a warrant for his arrest, and that there was apparently no alternative, if Florence were to be detained, to holding him in the general jail population”).

However, these factual circumstances were recognized in the opinions of justices in the majority as possible exceptions to a general rule that reasonable suspicion ordinarily is not required before a strip search of an adult detainee. See id. at 1523 (Kennedy, J., Part IV, writing for a plurality) (concluding that the circumstances before the Court did not present the opportunity to consider a “narrow exception” in which reasonable suspicion would be required or a strip search would otherwise be unreasonable of the sort Justice Alito suggested); id. at 1523 (Roberts, C.J., concurring) (noting, “The Court makes a persuasive case for the general applicability of the rule it announces. The Court is nonetheless wise to leave open the possibility of exceptions ....”); id. at 1524 (Alito, J., concurring) (proposing an exception). Finally, the only part of Justice Kennedy’s opinion that Justice Thomas^— whose vote was also necessary to establish a majority — did not join was Part IV, which contemplated the possibility of exceptions, so that it appears that he saw no need for any exception to a general rule that reasonable suspicion is not required to strip search any detainee.

Thus, the rule stated in Florence was a general one that adult detainees may be strip searched without reasonable suspicion, subject to exceptions not as-yet fully defined by the Court. Id. at 1522-23 (Kennedy, J., writing for a plurality) (noting in Part IV that the case before the Court did not permit the Court to define the “narrow exception of the sort Justice ALITO describes”); id. at 1523 (Roberts, C.J., concurring) (recognizing that the Court’s opinion supported a “general rule” that reasonable suspicion is not required to strip search adult detainees, but that the Court had left open the possibility of undefined “exceptions”); id. at 1524-25 (Alito, J., concurring) (describing some circumstances in which the general rule that reasonable suspicion is not required for a strip search might not apply). Justice Ali-to’s concurrence does not define the limits of the rule in the case where Ju'stice ’Alito stated that he “join[ed] the opinion of the Court in full,” including Part IV, because the opinion by Justice Kennedy did not foreclose exceptions. Id. at 1525 (noting that Justice Kennedy’s opinion “did not address whether it is always reasonable, without regard to the offense or the reason for detention, to strip search an arrestee before the arrestee’s detention had been reviewed by a judicial officer,”- and, instead, “explicitly reserves judgment on that question”).

Rattray also asserts that Florence is “inapplicable” because there is purportedly no dispute that at no time was she a detainee who would be admitted to “general population” of the jail, that she was never required to share a holding cell, and that she did not have “substantial contact” with other detainees. Again, these attempts to- distinguish Florence factually are unavailing, as to the question of whether Florence is an intervening change in the law, where Florence overruled a circuit legal rule that adult detainees cannot be searched without reasonable suspicion, regardless of the circumstances.

Because Florence overruled controlling circuit precedent on which I relied in my ruling granting summary judgment in Rattray’s favor, on precisely the ground on which I relied on that controlling circuit precedent, it is undoubtedly an intervening change in the law that justifies reconsideration — and, indeed, withdrawal — of my grant of summary judgment in Rattray’s favor, because it is no longer equitable for that ruling to stand. See, supra, at 11.

B. Consideration Of Summary Judgment In The County’s . Favor

Because I will withdraw my interlocutory grant ' of summary judgment in Rattray’s favor on her “no reasonable suspicion” strip-search claim, in light of Florence, I turn to consideration of whether the County is' entitled to summary judgment in its favor on any of the plaintiffs’ strip-search claims. It is here that the parties’ specific factual disputes about the circumstances under which each plaintiff was strip searched and detained after her arrest, viewed in light of Florence, become relevant and potentially dispositive.

1. Arguments of the parties

The County argues that, like the petitioner in Florence, the plaintiffs here cannot show that the County’s strip search of misdemeanor detainees without reasonable suspicion was an unnecessary or unjustified response to problems of jail security. The. County argues. that the same factors that the Supreme Court found dis-positive are equally applicable to the County Jail, because the same concerns with detection of lice and contagious diseases, contraband, wounds or injuries, and gang tattoos, are present even when a detainee is not introduced into “general population,” but does have “substantial contact” with others or the potential to have “substantial contact” with others. The County points to the possibility that even detainees who will not be put in “general population” during the first twenty-four hours of their detention may still be “doubled up” in detention cells and shackled with others to be transported to court. Because of the possibility of shared confinement in temporary holding cells and close proximity with other detainees during transport to court, amounting to “substantial contact” with one another, the County argues that it is imperative that all detainees at the County Jail who have been charged with a serious misdemeanor or above be subject to strip searches. The County argues that its search procedures, like those at issue in Florence, struck a reasonable balance between inmate privacy and institutional needs. Moreover, the County points out, there is no dispute that Rattray and Mathes were both shackled with several other detainees to be transported to court, that Lambert now admits that she shared a holding cell with other detainees during the night, and that a small knife was found in Lambert’s possession when she was booked. The County also argues that neither Lambert nor Mathes have stated that they were mistreated during their strip searches in such a way that their strip searches were conducted in an unconstitutional “manner.”

The plaintiffs argue that an extension of the rationale in Florence to the temporary detention situation, based on the potential that detainees will be housed with others, is simply not warranted. They argue that this proposed exception to reasonable suspicion searches would negate Fourth Amendment protection against unreasonable searches, because any detainees could be strip searched at any time during their detention, because it is always possible . that a'detainee will have some contact with another detainee. Rattray and Mathes point out that at no time during their detentions were they ever placed in a temporary holding cell with another detainee and that, apart from being escorted to court with other detainees, they never interacted with another detainee. ’ Although Lambert admits that her affidavit discloses that she shared a temporary holding cell with another detainee on two separate occasions during her overnight detention, she argues that this fact is of no consequence, because, like the other two plaintiffs, she was never admitted to the jail’s general population. The plaintiffs argue that the County’s reading of Florence would create an all-encompassing rule of general applicability that reasonable suspicion is not required, but a plurality of the Court was not willing to take that step on the facts before them. The plaintiffs also contend that some of the evidence on which the County relies to show that detainees may be “doubled up” in detention cells, consisting of the County Jail’s “booking logs,” cannot be relied on here, because that evidence does not fit into the hearsay exception for records of a regularly conducted business activity in the absence of proper authentication, which they contend is lacking. Finally, the plaintiffs argue that, even if Florence could be read to apply beyond its specific limitation to cases involving detainees admitted to general population, the undisputed facts of this case still demand summary judgment in their favor, because they suffered indignities far beyond a mere visual body inspection.

In reply, the County argues that the plaintiffs are ignoring the rationale for the decision in Florence, which was that the Court should defer to the judgment of correctional officials that security measures are necessary, in the absence of a showing that their response is exaggerated. The County contends that, as in Florence, the exception that the plaintiffs here assert is unmanageable, in light of legitimate security concerns of jail officials and the circumstances of detaining arrestees. The County admits that none of the plaintiffs were placed in “general population” per se, but. that the circumstances existed for each of them, .as well as any other detainee, to have “substantial contact,” in a cell or in the booking area, with other detainees within twenty-four hours of their arrests. The County points out that, using the analysis from Florence, the Eighth Circuit Court of Appeals recently upheld a strip-search policy for civilly committed sex offenders. The County also argues that Rattray’s descriptions of the “manner” of her search, are exaggerated and that nowhere do Lambert or Mathes allege that they were touched or abused during the strip-search procedure or that they have a cognizable physical or mental injury from the strip-search procedure. Finally, the County supplies an affidavit by the sheriff authenticating the jail “booking logs” on which it relies to eliminate the basis for the plaintiffs’ challenge to those documents, based on lack of authentication.

2. Summary judgment standards

As I have explained, in greater or lesser detail, on numerous occasions, including in the prior ruling on the plaintiffs’ summary judgment motions, see Rattray v. Iowa, 754 F.Supp.2d at 1026, summary judgment is only appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); see Woods v. DaimlerChrysler Corp., 409 F.3d 984, 990 (8th Cir.2005) (“Summary judgment is appropriate if viewing the record in the light most favorable to the nonmoving party, there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.”); see generally Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see also Torgerson v. City of Rochester, 643 F.3d 1031, 1042-43 (8th Cir. 2011) (en banc) (explaining how the facts are viewed and each party’s burden on a motion for summary judgment). Summary judgment is particularl