Friday, October 5, 2007

Strip Search Settlement in New York City - Fourth Amendment Mass Tort

Alan Feuer of the New York Times reports here that New York City has once again settled a constitutional mass tort.

The city’s Department of Correction conceded yesterday that tens of thousands of nonviolent inmates taken to Rikers Island on misdemeanor charges had been wrongly strip-searched in violation of a 2002 court settlement, and were entitled to payment for damages.

The number of prisoners wrongfully strip searched may reach 150,000.  The article describes the continuation of this illegal policy despite court rulings and a $50 million dollar settlement.   Anthony Sebok (Cardozo) wrote an interesting FindLaw piece on this settlement in 2001 - it is available here.   More from the New York Times article:

Before July 2002, all inmates at Rikers Island were forced to undergo strip-searches when they first entered the jail. Often in groups of 10 or 12, they were made to stand naked and have their armpits, mouths, ears, noses, navels, genital areas and anal cavities searched by correction officers, according to papers filed in the case.

The policy was kept in place despite a United States Court of Appeals for the Second Circuit ruling in 2001 that strip-searches of misdemeanor suspects were illegal, unless officials suspected that they were carrying contraband. (Inmates accused of felonies are still permitted to be strip-searched at the jail.)

This case is a testament to the importance of objectors and intervenors in class actions.  Here, the firm of Emery Celli Brinckerhoff & Abady intervened in the original lawsuit against the Department of Corrections, arguing that the compensation offered plaintiffs was too low.  (In the interest of full disclosure, I worked for this firm prior to teaching).  As part of discovery in that proceeding, the lawyers discovered that the Department was not complying with the previous court order and continuing with the unconstitutional strip searches.   Although the City had agreed to order gowns to offer prisoners some modicum of privacy, 

Mr. Emery also said he discovered that only 46,000 gowns had been ordered from July 2002 to August 2007, even though some 150,000 inmates who needed the gowns were admitted to Rikers Island in those years. In a separate deposition, the plaintiffs’ lawyers asked Chief Valerie Oliver, another correction official, if she believed that the department was complying with the strip-search ban. According to a transcript of the deposition, Chief Oliver said no.

How is it that a municipal government can continually violate court orders and establish policies that are clearly unconstitutional over a period of years?  It was clear before 2001, but certainly by 2001 that the policy of blanket strip searches of all misdemeanor arrestees violated the Fourth Amendment.  Keeping this policy in place between 2001 and 2007 is a fundamental violation of the rule of law.  This case reinforces the importance of the constant vigilance of citizens and the civil rights bar.  Perhaps it shows that our courts, and the norms of legality, aren't as powerful as we think.  It also illustrates the particular danger of reducing fees for civil rights lawyers, which will predictably reduce the pool of talented litigators who will pursue these cases to the end and, apparently, even after the policy is supposed to be ended. 


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