Precedents and Authorities Cited and Their Influence

1. Sloley v. VanBramer (“Sloley I”), 945 F.3d 30 (2d Cir. 2019). The bedrock precedent here. The Second Circuit held that visual body cavity searches incident to arrest require reasonable suspicion that the arrestee has secreted evidence inside a body cavity, based on “specific and articulable facts” plus rational inferences. The court emphasized the extreme intrusiveness of such searches and balanced the individual’s strong privacy interest against the government’s interest in a suspicionless search, which it characterized as “slight.” Sloley I also defined “visual body cavity search” (observation without touching, often involving bending, squatting, and coughing). This standard governed the trial on remand and frames the error in the jury instruction.

2. Saint-Jean v. Emigrant Mortg. Co., 129 F.4th 124, 147 (2d Cir. 2025). Cited for the standard of review: challenges to jury instructions are reviewed de novo, and to overturn a verdict the appellant must show the instructions were erroneous and prejudicial.

3. Callahan v. Wilson, 863 F.3d 144, 152 (2d Cir. 2017). Establishes that an erroneous instruction requires a new trial unless the error is harmless. Here, because the body cavity reasonable-suspicion standard was the focus of the trial, an overly general or incorrect standard is not harmless.

4. Cobb v. Pozzi, 363 F.3d 89, 116 (2d Cir. 2004). Provides the harmless-error test: an error is harmless only if the court is convinced it did not influence the jury’s verdict. The panel could not be so convinced.

5. Hudson v. New York City, 271 F.3d 62, 70 (2d Cir. 2001). Rejects the idea that a correct statement elsewhere in the charge necessarily cures an incorrect one. The later, simplifying but incorrect “in or on” instruction muddled the earlier, correct recitation of Sloley I.

6. Dancy v. McGinley, 843 F.3d 93, 116 (2d Cir. 2016). Confirms that Fourth Amendment reasonableness and reasonable suspicion are objective inquiries; an officer’s negligence or subjective intent is not the standard. This undercuts the relevance of a negligence instruction in this case.

7. United States v. Weaver, 9 F.4th 129, 145 (2d Cir. 2021) (en banc). Reinforces the objective nature of the reasonable-suspicion standard based on the totality of the circumstances. The inclusion of a negligence instruction risked suggesting a subjective or due-care standard.

8. United States v. Batista, 684 F.3d 333, 342 (2d Cir. 2012). Courts presume juries follow instructions they are given. As the court told the jury to follow its instructions, a correct verdict form could not cure an erroneous charge.

9. Rose v. New York City Bd. of Educ., 257 F.3d 156, 162 (2d Cir. 2001). A correct special verdict sheet does not render harmless a defective jury instruction where the instruction misstates the law.

10. United States v. Mouling, 557 F.3d 658, 665 (D.C. Cir. 2009), abrogated on other grounds by Henderson v. United States, 568 U.S. 266 (2013). A correct verdict form cannot cure an omission in the instructions; juries follow the instructions. The Second Circuit cites Mouling for this principle as persuasive authority.

Collectively, these authorities compelled the outcome: Sloley I supplied the controlling substantive standard; the remaining cases supplied the instructional error framework, harmless-error analysis, and the principle that neither “correct elsewhere” instructions nor a correct verdict form salvages a fatally flawed charge on the dispositive issue.

The Court’s Legal Reasoning

The panel anchored its analysis in Sloley I’s rule: a visual body cavity search incident to arrest is permissible only when an officer has reasonable suspicion, founded on specific, articulable facts and rational inferences, that the arrestee is concealing contraband inside a body cavity. The district court’s shorthand formulation—asking whether the circumstances supported reasonable suspicion that plaintiff hid contraband “in or on his person”—materially departed from that standard. “On his person” describes contraband located in clothing, pockets, waistband, or otherwise on the outer body—locations already reachable through ordinary search-incident-to-arrest procedures that do not require individualized suspicion. By allowing the jury to find for the officer based on suspicion that contraband was “on” (not inside) Sloley, the instruction impermissibly lowered the threshold and collapsed the careful distinction Sloley I drew between routine searches incident to arrest, strip searches, and the more intrusive visual body cavity searches.

Turning to prejudice, the panel emphasized that the lawful scope of a body cavity search was the trial’s central issue. An erroneous legal standard on the dispositive question is rarely harmless; the court could not conclude the misstatement did not influence the verdict. The court also identified cumulative risks of confusion:

• The charge referenced both a strip search and a visual body cavity search even though only the latter claim was tried, and it outlined the lesser “strip search” threshold without clarifying that no strip-search claim was before the jury.
• The court injected a negligence instruction—suggesting no liability if the officer merely lacked due care—despite negligence being irrelevant and the Fourth Amendment reasonable-suspicion inquiry being objective.

Finally, the panel rejected two proposed “cures”:

• Earlier correct recitation of the standard. A later, simplifying but incorrect instruction—especially one framed as “In short, the relevant question is …”—muddles and may override an earlier correct statement. Precedent does not presume cure by correctness elsewhere in the charge (Hudson).
• Correct verdict form. Because jurors are directed (and presumed) to follow the court’s instructions, a correctly framed verdict question cannot rehabilitate a misdirection in the jury charge (Rose; Mouling; Batista).

The remedy was therefore straightforward: vacatur and remand for a new trial with jury instructions that track Sloley I precisely.

Impact and Practical Implications

Although this is a non-precedential Summary Order, it will likely exert significant persuasive influence in the Second Circuit and beyond, given its direct application of the published Sloley I standard and its careful attention to trial practice. Key impacts include:

• Jury instruction precision in Fourth Amendment cases. Courts must track Sloley I’s language closely. Phrases like “in or on” misstate the governing threshold for visual body cavity searches.
• Charge architecture matters. Avoid including inapplicable doctrines (e.g., negligence standards) and claims not in the case (e.g., strip search standards if the strip-search claim is not tried). Such inclusions risk reversible confusion.
• Verdict forms are not a safety net. A correct verdict question does not cure a flawed charge. Trial judges should ensure consistency across the entire charge and the verdict form.
• Training and policy implications for law enforcement. Agencies should reinforce that visual body cavity searches incident to arrest require specific, articulable facts indicating concealment inside a body cavity. Suspicion that contraband may be on the person is insufficient to escalate to a body cavity search.
• Appellate preservation. Defense and plaintiff counsel should object contemporaneously to charge language that deviates from Sloley I. Here, plaintiff’s objection to “in or on” preserved the issue and was outcome-determinative.
• Boundary maintenance between search types. The decision reinforces the doctrinal line between routine search-incident-to-arrest procedures (no individualized suspicion required), strip searches (intrusive, subject to heightened scrutiny), and visual body cavity searches (most intrusive and governed by Sloley I’s inside-the-body-cavity reasonable suspicion requirement).

In practical terms, expect parties in the Second Circuit to cite this order (consistent with FRAP 32.1) for the proposition that instructional accuracy on Sloley I’s body cavity search standard is critical and that errors are rarely harmless when the standard is central to the verdict.