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Ohio County Pays $2.5 Million for Photographing Female Detainees’ Tattooed Private Areas

by Kevin W. Bliss

On January 7, 2022, Ohio’s Franklin County Board of Commissioners settled a suit brought by a class of former female detainees in the county jail who claimed their constitutional rights were violated when photographs of tattoos on or around their private areas were taken by deputies with the county Sheriff’s Office (FCSO). The Board agreed to pay $2.5 million and cease the practice of photographing tattoos upon entry into the jail for minor crimes.

The suit was brought in federal court for the Southern District of Ohio by Kristen McDonald on May 23, 2013, accusing FCSO deputies of violating her civil rights when they took photographs of tattoos around her private areas during booking for a minor offense into Franklin County Corrections Center II, on Jackson Pike in Columbus.

Represented by attorneys Andrew Baker of Baker Law Group and Elmer Robert Keach, III, along with Nicholas A. Migliaccio and Jason S. Rathod of Migliaccio & Rathod LLP, McDonald ultimately filed an amended complaint seeking certification of a class of plaintiffs who were female detainees placed in custody at the Jackson Pike jail between May 23, 2011, and April 30, 2014, for misdemeanor crimes, violations of probation, traffic infractions, civil commitments, city code violations, failure to pay fines, and other minor violations.

The women claimed their Fourth and Fourteenth Amendment rights were violated by the photographing, as well as by electronic recording of the photographs, which Defendants said were necessary to identify gang tattoos. Plaintiffs said this FSCO policy and practice promoted the violations, and they sought declaratory judgment and injunctive relief, as well as monetary damages and attorney fees and costs.

After a rocky start, the litigation found traction when the Court certified the class on April 14, 2015; it then denied either party summary judgment on March 30, 2018, because it found “there are genuine issues of material facts as to whether Defendant’s policy of photographing all tattoos, including those located on the ‘breasts, hypogastric region, genitals, and/or buttocks,’ violates the Fourth Amendment.” See: McDonald v. Franklin County, 306 F.R.D. 548 (S.D. Ohio 2015); and 2018 U.S. Dist. LEXIS 244657 (S.D. Ohio).

Six months later, on September 30, 2018, Judge Michael Watson issued an even more forceful denial when Franklin County again moved for summary judgment. “While Defendant is entitled to ‘wide-ranging deference’ in adopting its security policies,” the Court said, quoting Bell v. Wolfish, 441 U.S. 520 (1979), “this deference is … not without limits.”

“Plaintiff has presented sufficient evidence to create a genuine issue of material fact as to whether Defendant exaggerated its response to the problem posed by gang-related tattoos,” the Court said. “Indeed, both Plaintiff and Defendant have cited evidence that other facilities handle this same security threat in a far less intrusive fashion.” See: McDonald v. Franklin Cty., 2019 U.S. Dist. LEXIS 239665 (S.D. Ohio).

That got the parties to mediation, arbitrated by Columbus attorney Frank Ray. An agreement was reached providing $833,333.33 for attorney fees and costs, and paying from the remainder of the settlement all administrative expenses, including class member notification, plus $50,000 to McDonald as class representative. Prorating the balance should pay each of the other 681 potential class members about $2,375.

Payment to all plaintiffs was to be made within 21 days of the effective date of the agreement. Any plaintiff unable to be located within 270 days of the distribution will have her proceeds redistributed in a second pro rata payment to the remaining plaintiffs. See: McDonald v. Franklin Cty., U.S.D.C. (S.D. Oh.), Case No: 2:13-cv-00503. 

Additional source: WFFT

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Related legal cases

McDonald v. Franklin Cty.

McDonald v. Franklin Cty.

McDonald v. Franklin County

McDonald v. Franklin County