Prison Guards Union Loses Strip-Search Fight

     MANHATTAN (CN) — A New York correctional union cannot turn to federal court to challenge a directive allowing their guards to be strip-searched and disciplined if a dog sniffs narcotics on them, a judge ruled Thursday.
     From a Clinton Correctional Facility escape to a massive Rikers Island smuggling bust, reports of New York guards funneling drugs, weapons and tools to prisoners have fueled a steady stream of indictments and news headlines in the Empire State.
     Amid public scrutiny, the state’s Department of Corrections amended their internal order for “integrity operations” twice, most recently on Sept. 10 last year.
     The new rules called for guards who triggered a “positive alert” during a canine sniff to be taken to a place without surveillance or recording devices.
     There, the guards would be forced to disrobe except for their last layer of clothing for a search that would probe “inside the pockets of the clothing” and “all undergarments.”
     Guards found with narcotics or contraband would be subject to immediate suspension or arrest.
     The Correction Officers’ Benevolent Association, the union representing the guards, filed a federal lawsuit claiming this directive violated their members’ Fourth Amendment protections against unreasonable searches and seizures, as well the state constitution and law.
     Dismissing the case on Thursday, U.S. District Judge Alison Nathan found that the union could not seek relief in federal court — because its members could not prove that a drug-sniffing dog will smell anything on them.
     To establish legal standing, or the right to sue, a civil-rights litigant must prove an “actual or imminent” injury.
     The union’s lawyers insisted that a guard’s line of work raised the risk of false positives because a dog may detect residual odor from an inmate’s drugs.
     But Nathan called this hypothetical too “speculative” to support a lawsuit.
     “The speculative nature of this theory of injury is further bolstered by the fact that plaintiff describes false positive alerts as a ‘distinct possibility’ … a characterization falling far short of ‘actual or imminent’ injury to any particular officer that ‘is certainly impending,'” she wrote in an 11-page opinion.
     The union claims that the searches called for in the department’s directive would be unconstitutional regardless of whether a guard was smuggling contraband, but Nathan saw problems with what she labeled a “positive alert theory.”
     “Under the accurate positive alert theory, only officers who smuggle contraband can suffer any subsequent constitutional injury,” the opinion states. “Ordinarily, then, ‘to sue in [her] own right’ based on this theory, … a COBA member would have to show that an accurate positive alert is an ‘actual or imminent’ threat to her because ‘it is … [her] intention’ to smuggle drugs into prison.”
     “Unsurprisingly, COBA does not argue that any of its members intend to smuggle contraband into prison,” it continues.
     The ruling’s reasoning echoes, and cites, the Supreme Court’s holding in the case of Clapper v. Amnesty, in which human-rights groups failed to stop warrantless wiretapping because they could not prove that they were under secret surveillance.
     Critics of the 5-4 decision argued that the court placed would-be litigants in a catch-22, by raising the bar extremely high to defend their rights in court.
     New York City spokesman Nick Paolucci said the case shows Gotham’s commitment to cracking down on smuggling.
     “Commissioner Ponte has said he has zero tolerance for anyone, including staff, bringing contraband into DOC facilities, and we are pleased with this decision,” he said in an email.
     The union’s lawyer did not immediately respond to emailed requests for comment.

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