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An upstate New York county has been ordered to suspend a policy in which all detainees, including those arrested on misdemeanor and traffic charges, are required to strip naked in front of a corrections officer. Northern District Judge David N. Hurd temporarily enjoined Montgomery County from enforcing its security policy and also granted class action status to plaintiffs alleging violations of their Fourth Amendment right against unreasonable searches and seizures. In a decision dated Friday, Hurd said the plaintiffs have “demonstrated a substantial likelihood of success on the merits” and are therefore entitled to preliminary injunctive relief. Montgomery County, as a matter of jail policy, requires everyone admitted to the jail to strip in view of an officer of the same sex. The county had claimed that since officials were merely observing detainees and not performing body cavity examinations they were not conducting a search within the meaning of the Fourth Amendment. But Hurd found the argument “one of semantics” and inconsistent with 2nd Circuit precedent. Marriott v. County of Montgomery, 5:03-CV-531, arose from complaints that Montgomery County was routinely subjecting arrestees to strip searches without reasonable suspicion that the detainee was secreting a weapon or other contraband. The lead plaintiff, Paul Marriott, was arrested on Sept. 13, 2001, and charged with violating state Agriculture and Markets Law in relation to the care of five horses. Since Marriott was to be detained in lieu of bail, he was required to strip and shower in front of a corrections officer, lift his arms, open his mouth and spread the lobes of his buttocks. Only then was he permitted to dress in a jail uniform. Marriott was released on bail the next day. Two other plaintiffs — a woman arrested for failure to pay $2,000 in child support and a man arrested on a misdemeanor aggravated harassment charge — related similar stories. Montgomery County’s stated justification for the “change-out” is to keep contraband out of the jail. However, current and former corrections officials testified to various reasons for carrying out the policy. For instance, one corrections officer said the “observation” was strictly for hygiene. Others said it was to detect tattoos that would reveal gang affiliations. Some said it was to examine prisoners for injuries. Whatever the objective, Hurd said the county cannot carry out what he deems a strip search without a reasonable suspicion. “Defendant’s insistence that no strip search occurs is contrary to all the factual testimony, of both corrections officers and plaintiffs,” he wrote. “Using different terminology, such as change-out, does not change the observation of a naked admittee to anything other than what it is — a strip search.” Hurd rejected as a misstatement of 2nd Circuit law the defendant’s contention that a search or observation becomes a strip search only if the anus, genitals and/or breast areas are targeted. Montgomery County had relied on Weber v. Dell, 804 F.2d 796 (1986) in advancing that argument. “The [2nd Circuit's] finding that a strip/body cavity search is unconstitutional absent reasonable suspicion does not equate to a holding that any less intrusive search comports with the Fourth Amendment,” Hurd wrote. One of the attorneys for the plaintiffs, Elmer R. Keach III of Albany, N.Y., said the policy adopted by Montgomery County is commonplace. He expects the affected class will include about 2,500 plaintiffs. “Obviously, any time a class action is certified it is significant,” he said. “This is a widespread practice in New York state. A lot of counties are doing this.” Also appearing for plaintiffs were Bruce E. Menken and Jason J. Rozger of Beranbaum Menken Ben-Asher & Bierman in Manhattan and Gary E. Mason of Washington, D.C. Menken said the court’s rejection of a “nuanced or semantic-filled defense” is significant since many counties operate under policies similar to Montgomery County’s, relying on “euphemisms” to obscure what Hurd clearly saw as a strip search. Theresa B. Marangas and Thomas W. Hyland of Wilson Elser Moskowitz Edelman & Dicker represent the defendants. They declined comment.

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