When Michelle Nilsen was arrested in York County, Maine, for driving with a suspended license, she was strip-searched when she was booked into the county jail.  A little further north, in Knox County, Laurie Tardiff had a similar experience; she was strip-searched at the jail there after she was arrested for witness tampering.

With a wealth of case law to back them up, Nilsen and Tardiff sued the respective counties for violating their civil rights.  They claimed that pre-arraignment detainees who have been arrested for misdemeanors can't be strip-searched without reasonable suspicion, according to federal law.

But Nilsen and Tardiff aren't the only ones who claim that their Fourth Amendment rights were violated by strip-searches at the York and Knox County jails.  Earlier this month, the women's lawsuits were certified as class actions, opening the door for thousands of other people who had similar experiences at the jails to jump on board.

"It's important to hold the government accountable for violating basic human rights and strip-searching citizens when there's no need to do so," said David Webbert, Nilsen's attorney.  "It's a fundamental violation of human rights.  It's the type of tactic that's used by dictatorships."

According to Webbert, converting the lawsuits into class actions was necessary to effect policy and procedure changes in the county jails.

"It's not an isolated incident.  It was happening every day for at least seven years in York County," Webbert said.  "It needed a class action [lawsuit] to send a signal to cut it out."

But Maine isn't the only state facing legal action because of its jails' strip-search policies.  Just last week, in Fulton County, Georgia, a similar lawsuit was filed, seeking class action status on behalf of 10,000 people.  One of their main complaints is that they were illegally searched.

A New Way of Doing Things in New York City

While some counties are just now facing class action lawsuits on this point and their implications, a few counties in other states have already gotten the message loud and clear about illegal strip searches.  Their signals came in the form of class action lawsuits that resulted in multi-million dollar settlements.

"We entered into a settlement [and] we are no longer doing the strip-searches.  We have been compliant," said Florence Hunter, General Counsel for the New York City Department of Correction, which was involved in a class action lawsuit a few years ago.

Tyson v. City of New York represented about 60,000 people who were arrested for minor offenses and were strip-searched in New York City jails between 1996 and 1997.  The lawsuit settled for $50 million.

"Since July of 2002, we have not been routinely strip-searching [people who are arrested for] misdemeanors when they come into our system," Hunter said.  "We continue to routinely [and legally] strip-search felony detainees because we believe that it's crucial to security."

With security as a main concern for correctional facilities, without the legal authority to conduct strip-searches on all offenders, how are jails supposed to remain safe for both inmates and employees?

Changing Policies and Procedures in Boston

Suffolk County, Mass., faced this precise conflict when it was slapped with a $5 million class action lawsuit in 1998 for strip-searching pre-arraignment, misdemeanor female detainees at the Suffolk County Jail.  The solution in Boston was relocate inmates and retrain officers.

"You have to re-teach the corrections people," said Rose King, who served as Suffolk County's Deputy General Counsel at the time of the lawsuit.  "A really good pat-search is almost as good as a strip-search."

Aside from adding new officer training, the jail began to segregate pre-arraignment, female detainees from the general inmate population, which was key to maintaining security at the facility, said King, who is now in private practice.

"We were able to segregate the women who weren't strip-searched [and keep them] downstairs in the booking room," King said.  "[That] is where the problem would have really come--if [we] couldn't separate them."

But holding female pre-arraignment arrestees in a different part of the jail and re-training the correctional officers to conduct effective searches without stripping people wasn't the difficult part, according to King.  Getting the unions on board with the jail's policy changes was a far greater task.

"The blue shirt union went through the roof," said King.  "We spent six months negotiating with the union because it was a change in their working conditions."

Although it was against the law for these types of searches to continue, King had a tough time convincing the correctional officers union to agree to the new policies regarding strip-searches.

"[By discontinuing routine strip-searches], you're really asking them to do something that they see as making no sense and seriously interfer[ing] with the security of the institution," King said.  "To not do it is contrary to everything [that] corrections professionals have learned and practiced their entire lives."

And, King pointed out, preventing officers from conducting blanket strip-searches directly impacted their personal safety.

"They go inside the walls everyday just like the inmates do," King said.  "This is their life on the line, so people should never forget that."

Despite the potential dangers to officers and offenders, however, it violates pre-arraignment detainees' rights to strip-search them without reasonable suspicion, which can be based on their behavior or the nature of the crime they allegedly committed.  Because the law is clear, Suffolk County, like New York City, settled the class action lawsuit against it.

"We knew that there was some wrongdoing and some money to be owed," King said.  "Everyone knew that if we went to trial on the damages, it could've been a lot worse than 5 million [dollars]."

The Suffolk County Sheriff's Department and the City of Boston were each required to pay the plaintiffs $5 million, an expense that came straight out of each party's operating budget.

Staying on Top of Legal Trends

To avoid similar expensive litigation, King advises other counties to stay on top of legal trends in the country.

"[My advice is] for any attorney in any kind of correctional setting to really stay aware of the trends in this field because the courts trend in different directions and my sense is the courts are tending towards limiting the corrections staff ability to perform strip-searches," King said.  "They really need to be aware of the way the law is going in this area."

For those jails that do perform strip-searches on pre-arraignment detainees, Martin F. Horn, Correction Commissioner in New York City, hopes that they do so within the limits of the law.

"[I hope they will] do it in a thoughtful, appropriate fashion, that they can articulate the reasons why they have the [strip-search] policy and that they don't do it in ways [to] avoid [the] requirements of the case law because bad cases will make bad law for the rest of us," Horn said.  "It's incumbent upon everyone who is doing this to do it right."

Resources:

To contact David Webbert, call (207) 623-5110

To reach Rose King, call the Suffolk County Sheriff's Department at (617) 989-6672

For more information about the New York City Department of Correction, go to www.ci.nyc.ny.us/html/doc/home.html