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$33 Million Settlement in New York City Jails Strip Search Class-Action

by Matt Clarke

On March 16, 2010, New York City agreed to settle a long-standing class-action lawsuit challenging the strip search policy used in the city’s jails. The settlement was for over $33 million, which included an estimated $3 million in attorney fees.

The suit originated as a class-action civil rights complaint filed pursuant to 42 U.S.C. § 1983 by female pretrial detainees who were strip-searched and subjected to nonconsensual gynecological examinations upon their admission to the Rikers Island jail in New York City. The lawsuit was later amended to expand the class to include male prisoners and all pretrial detainees strip-searched under the Prior Admission Policy of the New York City Department of Corrections (NYCDOC), plus all newly-admitted female detainees who were subjected to nonconsensual gynecological exams.

In 2002, a week after the lawsuit was filed, the city revised its intake policy and purportedly abandoned its policy to strip search misdemeanor pretrial detainees. The district court considered narrowing the class to specifically exclude people arrested for felonies, weapons charges or drug charges. Detainees who had been arrested for non-felony drug or weapons charges moved to intervene. Nonetheless, the district court decided to narrow the class. On July 21, 2005, the court gave preliminary approval to a settlement for the narrowed class that awarded each class member between $750 and $1,000. The plaintiffs’ request for an injunction was denied based on the NYCDOC’s representation that its strip search policy had been changed. See: McBean v. City of New York, 233 F.R.D. 377 (S.D. NY 2006) [PLN, March 2006, p.17].

The interveners continued litigating, and their discovery requests revealed that the NYCDOC had never implemented the 2002 policy changes and was still conducting strip searches and gynecological examinations. The intervener plaintiffs were detainees who had been strip searched or who received involuntary gynecological exams but were not covered by the 2005 settlement because the incidents occurred after the NYCDOC claimed to have changed its policy or because they were arrested for non-felony drug or weapons charges.

The intervener suit included two classes of detainees. The first was non-felony detainees admitted into custody after arraignment between July 2002 and October 2007. The second class consisted of detainees admitted after arraignment between July 15, 1999 and July 22, 2002 on a non-felony drug or weapons charge who did not receive a monetary payment as a result of the 2005 settlement agreement. Excluded from both classes were those detainees who were simultaneously admitted for a felony, parole violation, outstanding felony warrant, violation of felony probation, a city sentence of less than one year or who were already serving a state sentence.

The $33 million settlement was calculated assuming that only 10% to 15% of the class would apply for settlement compensation. Class members who were subjected to strip searches will receive between $1,800 and $2,900 each depending on how many members apply for compensation. Additionally, 18 plaintiffs who were strip-searched after October 4, 2007 must be paid the same amount as the class members, but that amount must be paid separately by the city and not from the $33 million class fund.

Pretrial detainees who were subjected to involuntary gynecological exams are entitled to receive $20,000 each. Those awards, plus $8,000 service awards to the eight named plaintiffs and the costs of the settlement administrator will come out of a $4 million portion of the settlement. The remainder, an estimated $3 million, will be paid to class counsel as attorney fees. This is in addition to the $802,308.51 in attorney fees previously paid to class counsel.

The plaintiffs’ lead attorney, Richard D. Emery of New York City, emphasized that the unconstitutionality of strip-searching people accused of minor crimes had been settled law in the Second Circuit since 1986.

“The city knew this was illegal in 1986, they said it was illegal and they [claimed to have] stopped in 2002, and they continued to pursue this illegal practice without justification,” he said. “We hope this settlement constitutes some semblance of justice.”

In addition to the 2005 settlement, which cost the city millions of dollars, New York had settled a similar lawsuit in 2001 involving over 50,000 people who were strip searched while awaiting arraignment, at a cost of nearly $40 million. Why then, one must ask, did the NYCDOC continue its illegal strip search policy and even lie to a federal court about having changed that policy?

“I don’t know why it was done,” said Emery, “but it seems like it was a punishment, a way of showing the inmates who was in charge.”

Mariann Meier Wang, another attorney for the plaintiffs, said the $33 million settlement was historic and referred to the illegal strip searches as a “form of mass humiliation.”
“Given the financial constraints the city is facing, there must have been very bad facts [in the case] for them to settle for this amount,” noted Daniel C. Richman, a former federal prosecutor who teaches at Columbia Law School. See: McBean v. City of New York, U.S.D.C. (S.D. NY), Case No. 02-cv-05426-JGK-THK.

Additional sources: New York Times, Associated Press,

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Related legal case

McBean v. City of New York