08/21/2009 05:12 am ET Updated May 25, 2011

Strip Searches Pervasive Despite Huge Settlements

One sunny fall afternoon, a mother of seven answered a knock at her door to find a cluster of policemen waiting on the step. She wore pajamas because she had been asleep before heading to her job on the night shift at a New York hospital. The officers gave her just minutes to dress before clapping her in handcuffs and escorting her to the police station.

"They didn't even explain why they were arresting me," she said.

At the station, she was shepherded into a locker room where a female police officer ordered her to strip. She was told to lift her breasts, bend at the waist and expose her genitalia to the inspecting officer. She was then forced to squat and cough, to dislodge any potential contraband.

The charge, which was subsequently dropped, was the neglect of four dogs left in her former home that her ex-husband had promised to pick up.

She was so traumatized by the incident that she was unable to talk about it for years, with even her closest friends. Eventually, she joined a class-action suit and won a settlement.

While many civil liberties experts are focusing on the recent Supreme Court decision involving the intrusive search of a 13-year-old girl, plaintiffs' lawyers nationwide have been winning huge settlements in class-action suits on behalf of women and men subjected to strip searches by local police departments.

Damages have reached into the millions in some cases. Los Angeles County recently paid $27 million to settle a class-action suit, New York City paid $22 million, and Washington, D.C. had to pay $12 million.

Despite the substantial settlements, most cases have been resolved with out-of-court agreements that limit publicity. As a result, some legal scholars believe that the invasive practice continues, sometimes even in jurisdictions where settlements have been paid.

All over the country, there are jails that carry out blanket strip-searches of anyone who is brought through their doors, whether the charge is heroin smuggling or unpaid parking tickets. Though these policies have been found unlawful time and again, many police forces continue the practice.

Last month, the Supreme Court ruled that the strip search of then-13-year-old Savana Redding by officials at her Arizona school was unconstitutional. The case was the first of its kind to be taken on by the highest court. At the appellate level and below, however, this is familiar territory and cases filed on behalf of victims of unlawful strip searches in jails, detention centers and schools are common. In almost all cases, the plaintiffs have won.

"In this country, people are presumed innocent till found guilty," said Charles LaDuca, a partner at the Washington law firm of Cuneo, Gilbert & LaDuca, who has worked on more than 25 of these strip search cases. "When these people are arrested for non-felony offenses, they have not been tried, but they are forced to get naked...in front of the arresting officer and often a roomful of other people."

If a person is brought in on a drug or weapons charges, strip searches are lawful because they are regarded as an element of jail security. In other instances, however, plaintiffs' lawyers have found fertile ground in pursuing cases involving people subjected to the searches after arrests for misdemeanors.

The trend of prosecution of these strip search cases started slowly in the 1970s, but the number began to rise in the late 1990s. Today, nearly 100 class-action suits have been filed against counties and municipalities around the country contending that these searches are unlawful and violate the Fourth Amendment.

Though police forces often justify the use of strip searches, saying they are necessary for jail security, the Fourth Amendment and the accumulated case law specify that strip searches can only be performed if there is a "reasonable suspicion" that a person has contraband, usually drugs or weapons, hidden on their bodies.

But despite the weight of the case law, judges are often hesitant to condemn unwarranted strip searches outright.

The Supreme Court's 8-1 decision in the Redding case took some legal experts by surprise after the justices appeared not to take the episode seriously in questioning lawyers during oral arguments. "They seemed pretty cavalier about the harm of a strip search," said Margo Schlanger, a law professor at the University of Michigan who has written extensively about strip searches.

But Justice John Paul Stevens wrote, "it does not require a constitutional scholar to conclude that a nude search of a 13-year-old child is an invasion of constitutional rights of some magnitude. This is ... a case in which clearly established law meets clearly outrageous conduct."

Yet much of the language used in oral arguments made before the Supreme Court gave little weight to the emotional disturbance caused by the experience of forced nudity in front of others, and the psychological harm caused to the young girl.

Schlanger, who has done some of the most exhaustive research into strip search cases, suggested that police officers conducting the searches might not be aware of the trauma triggered by the strip searches given that their own environments are so steeped in the practice.

"At these facilities, they're so used to strip searching people, it's so natural to them that they don't realize how traumatic it can be, they don't even think about it," said Schlanger.

Strip search policies have been found to disproportionately affect women in jails. Though women account for only 8 percent of the prison population, women are on average far more likely to be strip searched than men. While the argument that women have more orifices in which to stash contraband is one that's often used, women are not shown to be more likely than their male counterparts to be carrying any contraband.

In fact, several of the first strip search cases were filed as violations of the 14th Amendment's equal protections clause because in many counties only women - and not men - have been subjected to blanket strip searches.

Many of the larger settlements -- some as much as $50,000 to an individual -- have gone to women subjected to particularly demeaning or invasive searches. For example, no special consideration is given to menstruating women and they are often forced to stand naked in front of other women, both inmates and police officers. In other cases women asked to strip were survivors of sexual violence and the incidents triggered memories that caused further emotional trauma.

Across the country, from Los Angeles to New Jersey, the verdicts have been near unanimous: Blanket strip search policies are unconstitutional.

"What is needed is for these facilities to follow the law and employ reasonable suspicion. The laws are already on the books, and are pretty clear on this," said LaDuca.

While no one disputes the importance of jail security, no one, on either side of the issue was able to provide adequate statistics as to the effectiveness of these strip searches.

Schlanger characterized the argument that strip searches serve as a deterrent as, "elephant repellant logic."

"Current knowledge cannot prove or disprove a causal relationship between jail contraband and the use of strip searches on newly arrested prisoners," Schlanger said.

So if one is pretty much guaranteed to win when it comes to these cases, it becomes a question of compensation.

Damages to individual plaintiffs are rarely huge. But overall costs have added up to hundreds of millions of dollars for the nation's municipalities and counties, which shifts the costs to taxpayers.

Even though case law overwhelmingly suggests that police officers must have a specific individualized suspicion to strip search minor offenders, the issue of blanket strip-searching in jails -- or anywhere else for that matter -- has never been heard by the Supreme Court. If judges in the most recent strip search case were hesitant to enact measures that could be perceived as tying the hands of school administrators, it's reasonable to assume that they would be similarly wary when it comes to circumscribing the actions of corrections officers.