Let’s agree on this straight-forward assertion: Plenty of decent and essentially law-abiding people can, under an unfortunate set of circumstances, find themselves placed under arrest. You have a little too much to drink and do something silly, and it rubs a cop the wrong way. You get into a fender bender and lose your temper when the police show up. You scalp tickets to a Knicks game. You’re at a place where dozens or hundreds are involved in a ruckus, and somehow you get picked out. Misdemeanors happen. Usually, they amount to nothing – release on personal recognizance, a small contribution to the city coffers, no record.
What is not supposed to happen to misdemeanants, as they’re called in the legal argot, is a strip search. But this is precisely what happened to about 53,000 people in Manhattan and Queens in late 1996 and early 1997 under a policy of the city’s Department of Corrections. Now attorney Richard Emery is pursuing a class-action suit on their behalf against the department, the mayor, and a few other defendants. Since the city has no way of denying that the searches took place – and indeed has conceded the point – a settlement is almost certainly in the offing, and chances are strong that the sum will be vast.
It may seem a relatively minor thing. My mother endured one at Ben-Gurion Airport in 1972 as we were visiting Israel not long after the Munich tragedy, and we’ve laughed about it ever since. But she was being processed by friendly and apologetic security people. And she wasn’t forced to remove her undergarments or made to squat and cough on the suspicion that she might have something concealed – how to say it decorously – within her person. By contrast, the 53,000 were subjected to just such searches – in direct violation of the Fourth Amendment.
Legal papers filed by Emery note that various courts have described strip-searching as inherently demeaning, dehumanizing, undignified, humiliating, terrifying, unpleasant, and a pile of like adjectives. Courts have drawn clear lines between the strip-searching of people accused of felonies and those accused of misdemeanors, and between people who are merely under arrest and those who, after arraignment, are remanded into custody (the latter are searched as a matter of course). In Weber v. Dell, a 1986 federal case in the Second Circuit (which includes New York City), the court explicitly forbade the strip-searching of misdemeanor arrestees except on “reasonable individualized suspicion” that they may be hiding a weapon or some other contraband.
So courts have taken this matter very seriously. “This is probably one of the most pervasive and extensive human-rights violations in the city’s history,” Emery says. He’s hyping his case, but the city appears to be taking it seriously as well, and it should. A typical award for an illegal strip search can run, Emery says, anywhere from $20,000 to $70,000. Even lowballing the cost, then, this settlement could bound up toward $1 billion. That’s about 65 mayoral bunkers, in a case that has all the elements of courtroom drama: a high-octane defense attorney (and the man primarily responsible for the abolition of the old Board of Estimate); a glamorous federal judge, in Kimba Wood; a group of people who were clearly wronged; another tale of Life Under Rudy.
Emery and his colleague Matt Brinckerhoff tripped over this one by accident. For another, unrelated case, they were questioning two female corrections officers who acknowledged in the course of their depositions that the strip-searching of all detainees was a matter of explicit policy. They produced a memo, dated October 18, 1996, from Alonzo Davis, an executive officer of the Manhattan Court Pens, ordering that “effective immediately, all female police prisoners arriving at this facility will be strip searched.” The same policy, Emery learned, had been put in force with respect to men in July 1996.
Up until that time, people arrested for misdemeanors in Manhattan and Queens were processed by the Police Department. Sometime in 1996, that chore was handed off to the Department of Corrections, which had long been responsible for processing people after they’d been arraigned, not released on recognizance by a judge, and were on their way to a holding cell. Post-arraignment strip-searching, remember, is kosher. So corrections officers carried on with their usual M.O., forgetting the rather crucial difference that in the eyes of the law, pre-arraignment arrestees are an entirely different, and more blameless, lot.
To be fair, it should be noted that the city was quick to abandon the policy after Emery and Brinckerhoff discovered it, as a spokeswoman at the city’s legal department took pains to point out (though not for attribution). For the most part, anyway: Brinckerhoff says, and his colleague John Cuti has written in a letter to the city lawyer handling the case, that spot checks the lawyers have undertaken at the Manhattan processing center confirmed that strip searches were still conducted occasionally. Through the early legal stages, Emery learned that the number of people searched totaled 53,000.
Who were they? Emery and Brinckerhoff set about trying to pull people together to qualify for a class action. They discovered ten good cases. Iris Zimmerman, 42, was charged in May 1997 with unlawful eviction and harassment resulting from an incident with a former roommate. She had never been arrested. Carlos Morales, 31, was nabbed in April 1997 for driving with a suspended license. No prior record. Danni Tyson was charged with disorderly conduct and resisting arrest stemming from an incident on a subway train. No prior arrests. Daniel Jackson was caught with a small amount of pot, class B misdemeanor, no criminal record. Vivian Williams did have one previous conviction, and on May 22 was arrested for the crime of trying to sell a pair of sneakers on the sidewalk without a vending permit. Clearly dangerous people. Eight of these ten, by the way, are black or Hispanic, suggesting that minorities were being hit disproportionately.
On March 18, Judge Wood granted Emery class certification, giving him permission to move ahead with the class-action suit. The city has been “all over the place,” Emery says, in trying to figure out how to fight the suit. It can’t deny that the searches happened, and it can’t suggest that the searches were a deviation from policy. “The interesting question is not liability, because liability is pretty clear,” Emery says. “The interesting question is how this thing is going to be fought on damages.” Emery would prefer an overall settlement or a tiered system of damage amounts based on different levels of trauma people faced. He believes the city’s ultimate strategy may be to make his firm try each case individually, to slow things down and stretch out the damage awards. The legal-department spokesperson would say only that “when there are violations of constitutional rights, assuming there were in this case, you have to look at the injury,” probably meaning that different levels of relief would be appropriate.
There is no evidence that this practice was ordered by City Hall, and, again, the searches were mostly abandoned when Emery and Brinckerhoff filed their suit. All the same, it’s funny how stories in which people’s civil liberties wind up on the short end of the stick keep popping up during the Giuliani era; last week, for example, a City College security chief acknowledged that a surveillance camera was installed near a room where politically active students were known to meet in order to monitor them. Maybe the strip-search policy was just a misunderstanding, but it resulted in an unequivocal violation of the constitutional rights of a lot of people who are hardly threats to the commonweal, and it’s one for which you and I will have to pay.
In memoriam: Many people in New York politics found it difficult to feel much sympathy for Larry Douglas, the political consultant who disappeared two years ago and died at Coney Island Hospital recently of a heart attack at age 48. He wasn’t the only résumé-padder in town, but he was among the more prodigious; when news reports caught him embellishing his client list in 1991, he fled to Israel. The next year, I met a friend at City Hall who drove me out to a coffee shop in Kew Gardens, and there sat Larry.
I learned then some of the sad details of a life that bred crippled self-esteem, which in its turn bred the kind of boasting that Larry relied on to justify himself and seek approval. He said he’d learned his lesson; and for four years, things seemed fine – he was back in politics, which was all he really loved and had. But by 1996, the old habits reappeared, and Larry again disappeared. “Where’s Larry?” became a regular, if morbid, parlor game – there were rumors of an ATM record that placed him in the Chicago area, suppositions that he’d returned to Israel, speculation that he’d joined a Hasidic sect, or even that he’d died. It’s sad to think that he was in Brighton Beach the entire time, devouring the papers and monitoring the news under an assumed name, utterly unable to participate, not because he faced any legal charges but simply because he was too ashamed to surface. He punished himself quite enough and should not be judged too harshly.