NEW YORK CITY'S $50 MILLION STRIP-SEARCH SUIT SETTLEMENT: How a Fourth Amendment Violation Became A Mass Tort Lawsuit

By ANTHONY J. SEBOK
anthony.sebok@brooklaw.edu
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Monday, Jan. 15, 2001

The expression "mass torts" generally connotes class actions involving defective products, such as asbestos, breast implants or tobacco. But a mass tort doesn't have to involve a defective consumer product.

Securities litigation, in which disappointed investors sue a company for making false statements about a stock, is a mass tort suit. So is consumer fraud litigation, in which thousands of cardholders sue a credit card company for wrongfully overcharging them a few dollars.

It is rare, however, for a municipal government to be the target of a mass tort suit, and it is very rare for a federal civil rights claims for damages to be the foundation of a mass tort claim. Yet this is exactly what has happened last week in a case against New York City that settled for $50 million.

Third, the settlement may have been achievable only because a federal appeals court had ruled last year in another case that punitive damages would not be available in suits like Tyson against New York City — thus making it easier for the plaintiffs and the city to agree on an appropriate measure of damages owed to the victims.

The Facts of Tyson

Tyson was filed on behalf of approximately 60,000 persons who were arrested on misdemeanors between July 1996 and June 1997 in Manhattan and Queens. During this period, the New York City Department of Corrections, which ran the city's jails (where people who are arrested and awaiting arraignment are held) stripped and examined everyone brought to them, regardless of whether that person appeared to be concealing contraband or not.

Unfortunately for the City, ten years earlier, in 1986, the Supreme Court had held in Weber v. Dell that strip-searching a person who has been arrested for a minor offense, but who has not yet been arraigned or convicted of a crime, violates the Fourth Amendment. The lawyers working for the City of New York knew or should have known of that holding. Unsurprisingly, soon after Tyson was filed in 1997, the city ordered the Department of Correction to stop its policies of automatic strip searches.

The lead plaintiff in Tyson, a secretary in the U.S. Attorney's office in Brooklyn, argued that she and everyone who was subjected to automatic strip searches were denied their Fourth Amendment rights and sued under a federal statute, 42 U.S.C § 1983, which allows citizens to receive monetary damages for violations of federal constitutional rights. Her claim, in effect, was that New York City had committed a massive constitutional tort.

A High-Damages Loss for the City in a Related Case

While Tyson was working its way through the legal system, New York City got some very bad news. The city lost a case brought by an individual plaintiff who alleged the same claim as the plaintiff in Tyson, and it lost very badly.

In that case, Ciraolo v. City of New York, the judge decided that New York had clearly violated the plaintiff's constitutional rights, and told the jury that their only task was to determine damages. On May 6, 1999, the jury decided that the city would have to pay the victim of the search $19,000 in compensatory damages and $5 million in punitive damages.

This award, plus the fact that the city had already agreed to settle for $100,000 a suit brought by four female Fordham University students who had been arrested and strip-searched, suggested that if there were tens of thousands of arrestees who had been wrongfully strip-searched, New York City's potential liability could be huge.

By 2000, the only real question facing both the plaintiffs and city was how to settle Tyson in a way that compensated people fairly, but which did not send the wrong message about the nature of what the city had done wrong.

The plaintiffs were adamant that not only were the strip searches themselves emotionally painful, but the policy behind them was, in their view, of a piece with Mayor Giuliani's new, tough policy on "quality of life" crimes. They hoped that the class action's trial and inevitable verdict (containing a sizeable punitive damage award) would help send a message to both the Mayor and the city that his crime-fighting policies came at a great cost to the city's citizens — one that could be translated into dollars and cents.

The city, on the other hand, while grudgingly admitting that it had ignored the law, did not want to admit that the Department of Corrections had done something for which the city should be punished. The city viewed the psychological costs of the strip-searches as accident costs that had to be paid for, much as a car insurance company accepts that it has to provide compensation every year to tens of thousands of people who are inevitably injured in car accidents.

Whose view was the better one? On the plaintiffs' side, they had the tangible and very real fact that strip searches, which are humiliating even under best of circumstances, were not done under the best of circumstances. The Department of Corrections officers who conducted the searches were used to working with post-arraignment detainees and convicted felons on Riker's Island—many of whom are violent–and they treated the arrestees—many of whom were picked up for "quality of life" violations and never charged—like the residents in Oz.

On the city's side, though, it appears that the decision to perform automatic strip searches was the result of a colossal blunder. The police department, which had handled arrestees until the Department of Corrections took over in July 1996, did not perform automatic strip-searches, and the Department of Corrections, which had legally performed strip-searches on all post-arraignment prisoners (and still continues to do so), did not understand that what was legal on Riker's Island was not legal in downtown Manhattan after an arrest.

An Important Punitive Damages Holding

One might express some skepticism at the Department of Corrections' claim that its personnel made a simple mistake of law. In any event, the Second Circuit, for better or for worse, answered the question of whether the city should be punished for its violation of the Fourth Amendment in the negative.

In July 2000, in Ciraolo, it overturned the $5 million in punitive damages awarded to the plaintiff and announced that in her individual case (and therefore by extension in the Tyson class action) all that the plaintiffs were allowed to receive was compensatory damages. The Circuit's reasoning was that § 1983 allows for punitive damages only if the taxpayers of New York (who ultimately must pay the award) were "directly responsible" for the rights violation and that, according to the appeals court, was not the case with the strip-searches.

Compensating for Humiliation and Pain

In Tyson the class alleged that some were forced to disrobe in groups, while others disrobed in private; some women had their breasts lifted, while others were forced to squat and cough. Some were threatened if they did not disrobe quickly enough; others were forced to retrieve their clothing after it had been tossed across the room by abusive guards.

A Comparison with the Forced Labor Settlement

In one quite attenuated, but not insignificant way, the project the plaintiffs' lawyers faced was similar to the task confronting the lawyers who recently negotiated the slave labor settlement with German companies. There, too, they faced the uncomfortable fact that not all the members of the class suffered from forced labor in the same way.

Most of those whose labor the Nazis took were not the target of Germany's extermination policies. But some were, and they experienced their labor as a form of torture. In addition, the conditions of the different factories were very different depending on the region and the year.

In the end, in the forced labor case, a schedule was devised that awarded differing amounts to different plaintiffs according to a gruesome—and some would say specious—calculus of humiliation and pain. The actual difference between the greatest and smallest amounts is not that large but it was felt that as a matter of symbolism, the settlement had to reflect that everyone—especially the German companies—understood that the settlement was not just a transfer payment, but an attempt to approximate some measure of individual justice.

From this perspective, I think that the settlement crafted by the lawyers for the class in Tyson and the city reflects the same ambition contained in the slave labor settlement. It assumes that anyone who was strip-searched can receive $250 just for having had their Fourth Amendment rights violated. After that, individuals can receive up to $9,750, depending on whether they can prove that certain circumstances obtained which have been deemed to be especially humiliating. (For example, women who were menstruating during the search may receive more money, as well as men who were forced to strip in front of groups of other men.) Finally, individual claimants who can show that they suffered documented psychological damage can receive up to an additional $12,500.

Interestingly, the settlement assumes that, as a matter of psychological fact, the degree of humiliation experienced in the strip-search would vary depending on whether one was a "bad" person or no: Claimants who were later acquitted for the crime for which they were arrested get more money than those who had been treated identically but were ultimately convicted. And claimants who were wrongfully strip-searched but had been previously convicted will have their awards halved (ostensibly because they had already been strip-searched in prison, and thus were supposedly inured to it).

Assessing the Strip-Search Settlement

There is no doubt that the settlement addresses the individuals who fall under it quite badly: some will get too much and some too little. The humiliations which are set out by the settlement's rules look ridiculous when set down on paper—who can say whether it is worse to undress in front of one person or twenty?

But that very approximate, and somewhat strange, justice is all that one can look for in mass tort suits. Real justice—including, perhaps, punishment sensitive to the wrong done—must be sought for elsewhere, in arenas where the tools are less crude.


Anthony J. Sebok, a FindLaw columnist, is a Professor of Law at Brooklyn Law School, where he teaches Torts, among other subjects.

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