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Philadelphia to Pay $5.9 Million to Settle Strip-Search Claims
$1.7 million fee award results in multiplier of 2.3 times the plaintiffs lawyers' usual hourly rates
The Legal Intelligencer
November 09, 2009
A federal judge has approved a $5.9 million settlement in the civil rights suit challenging Philadelphia's blanket policy of strip-searching every person admitted into the city's prison system.
In her 52-page opinion in Boone v. Philadelphia, U.S. District Judge Mary A. McLaughlin also awarded attorney fees of more than $1.7 million -- 30 percent of the settlement fund -- to the team of plaintiffs lawyers from six firms, led by Daniel C. Levin of Levin Fishbein Sedran & Berman.
McLaughlin noted that the plaintiffs team had logged more than 2,800 hours on the case over the past four years and said her fee award resulted in a "multiplier" of 2.3 times the lawyers' usual hourly billing rates.
As part of the settlement, the city adopted a new policy that replaces strip searches with non-invasive metal detectors and ion scanners that are capable of detecting any object that could be smuggled into the prisons.
The high-tech solution allowed the lawyers to avoid litigating a constitutional question that has proven to be a vexing one for the courts.
The city at first appeared intent on defending its blanket policy of strip-searching every person upon admission into the city's prisons, arguing that such a policy was needed to prevent contraband such as drugs or weapons being smuggled in.
But the plaintiffs lawyers insisted that the law was on their side and that most of the federal appellate courts have struck down such blanket policies as unconstitutional. The question remained an open one in Pennsylvania because the 3rd U.S. Circuit Court of Appeals has not yet ruled on the propriety of blanket strip-search policies.
So far, eight of the 12 federal circuits have held that a policy to strip search all pretrial detainees is unconstitutional, and that prison officials must have a "reasonable suspicion" that a particular arrestee is concealing weapons or other contraband before conducting a strip search.
However, the city's lawyers could see that the trend was beginning to lean in their direction.
The 11th Circuit recently broke ranks and declared that the leading U.S. Supreme Court decision on the subject allows for the interest of prison security to outweigh the individual privacy interests of detainees, regardless of whether there is reasonable suspicion that the particular arrestee is concealing weapons or contraband.
The split in the circuits may soon sharpen now that the 9th Circuit has agreed to reconsider its stance on the issue before an en banc panel.
But in the Philadelphia case, McLaughlin decided to use the legal uncertainty as leverage to promote settlement talks, sending the lawyers first to U.S. Magistrate Judge Elizabeth Hey and later to James Melinson, a retired federal magistrate judge.
Now McLaughlin has certified the case as a class for settlement purposes and approved a settlement that will result in payments ranging from $100 to $1,400 for arrestees who were subjected to strip search without any reasonable suspicion.
Under the terms of the settlement, the class was divided into two subclasses. The first consisted of arrestees who were sent to prison on misdemeanor charges and had no previous arrests for drug charges or violent crimes. Those class members will receive pro rata shares of a $5.1 million fund, with each receiving $1,400.
The second subclass consisted of those with much riskier claims, because of prior arrests on drug or violence charges, but who would still have been able to argue that their strip searches were unconstitutional because they stemmed from the blanket policy. Those class members will each receive $100.
McLaughlin, in her opinion approving the settlement, found that the $1,400 awards to the first subclass are "commensurate with the amounts received by class members in settlements of similar actions."
The $100 awards to the second subclass were also fair, McLaughlin found, because "individuals meeting the definition of Subclass II are often completely excluded from recovery in strip-search cases."
City Solicitor Shelley R. Smith and Chief Deputy City Solicitor Craig Straw, who heads the office's civil rights section, could not be reached for comment.
Joining Levin on the plaintiffs team were attorneys Christopher G. Hayes of West Chester, Pa.; Charles Joseph LaDuca and Alexandra Warren of Cuneo Gilbert & LaDuca in Washington, D.C.; Elmer Robert Keach III of Amsterdam, N.Y.; Gary Mason of Washington, D.C.; and Kevin T. Birley of Philadelphia.
