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A Southern District of New York judge rebuffed a bid last week by one of the New York City’s premier civil rights litigators to take over a class action brought on behalf of 57,000 persons who were strip-searched when they were admitted into city prisons because they could not make bail on misdemeanor charges. Judge Gerard E. Lynch rejected claims by Richard D. Emery that the class’s current lawyers had worked out a tentative settlement that shortchanged absent class members at the expense of the named plaintiffs. Instead, Lynch certified the class put forward by two former Corporation Counsel lawyers, Richard J. Cardinale and Michael Heuston, of Cardinale Heuston & Marinelli, and Robert N. Isskes, of Middletown, N.Y., and appointed the lawyers to represent the class. In rejecting Emery’s attack on the quality of the class representation, Lynch wrote that he saw no need to displace the plaintiffs, or their lawyers, who had “initiated this suit, carried it forward for over two years, and participated in extensive settlement negotiations, solely on the basis of a litigation strategy [Mr. Emery and his clients] find unpalatable.” Emery criticized a tentative accord as “a cozy settlement between New York City and the class’ attorney that does not do the class members justice.” Emery, a name partner of Emery, Celli, Brinckerhoff & Abady, won a U.S. Supreme Court ruling which found the city’s Board of Estimate unconstitutional. Cardinale said the criticism was unfounded because the settlement had been “negotiated at arm’s length under the close supervision of U.S. Magistrate Judge Theodore H. Katz.” Muriel Goode-Trufant, the chief of the special federal litigation division at the Corporation Counsel’s office likewise rejected the criticism. She pointed out that Lynch had described the settlement terms as appearing to be “reasonable outcomes of what is by definition a two-sided negotiation.” The class filed suit in July 2002 claiming that the city’s Department of Correction routinely strip-searched everyone detained in city prisons on misdemeanor charges in violation of their constitutional rights. A week after the Cardinale firm and Isskes filed the suit, the Correction Department changed its policy to limit strip-searches of incoming pretrial detainees to instances where there was a reasonable suspicion that a weapon or contraband was being concealed. Routine searches without a showing of reasonable suspicion were “clearly unconstitutional” under a precedent set in 2001 by the 2nd U.S. Circuit Court of Appeals in a case involving the Nassau County Correctional Center, Lynch wrote in McBean v. City of New York, 02-5426. The tentative accord would give each class member — calculated by the city at 57,634 — $750 if they were strip-searched once and $1,000 to those strip-searched more often. The named plaintiffs would each get $25,000 as an incentive award, and attorney fees for Cardinale’s firm and Isskes were set at $500,000. The settlement removed from the class those prisoners who had been arrested on a variety of drug and weapons charges, because the city contended that the 2nd Circuit’s ruling allowed strip-searches of prisoners arrested on certain charges, which in and of themselves would give rise to a suspicion that the suspect was carrying contraband. Emery charged that in addition to compensating the named plaintiffs handsomely at the expense of class members, the lawyers had improperly agreed to exclude from the class those arrested on weapons and narcotics charges and waived claims on behalf of members who were strip-searched after they were admitted into a city jail. CLAIMS REJECTED Lynch rejected each of those arguments. On the adequacy of the payment amounts, Emery argued that a class action he had brought on behalf of arrested persons who were strip-searched by officers before they were produced in court for arraignments had produced awards of as much as $22,500 depending on how egregious the circumstance of the search was. But Lynch found that the structure of the proposed settlement, which is “procedurally less complex” than the one negotiated by Emery in Tyson v. City of New York, 97-3762, is likely to be “more attractive to all involved, and ultimately more just.” As to the disparity between the $25,000 awards to the named plaintiffs and those to absent class member, Lynch wrote that Emery’s argument was undercut by his finding that the $750/$1,000 approach was in line with similar settlements approved in the 2nd Circuit. Similarly, Lynch found that dropping persons from the class who had been arrested on narcotics or weapons charges was justified under the 2nd Circuit’s ruling in Shain v. Ellison 273 F3d 56, which stated that “reasonable suspicion” could be based on the nature of the charges underlying a suspect’s arrest. The city at the very least had “a colorable argument” that it has a constitutional basis for strip-searching persons arrested on weapons and narcotics charges, Lynch wrote. Besides, he noted, those excluded from the class remained free to pursue their claims separately in the future. Lynch had more trouble with a waiver contained in the settlement that might compromise the ability of persons who had been strip-searched after their admission into a city prison to seek a future remedy. Lynch, however, solved that problem by limiting the class to persons who were strip-searched at the time they were admitted to a city prison. That definition leaves prisoners who claim to have been strip-searched after their admission free to pursue their claims in the future. The city was represented by Assistant Corporation Counsel Genevieve Nelson.

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