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Nassau Liable For Strip Searches

Class action includes approximately 17,000 plaintiffs

Francis O’Day had never been arrested before. Now he can’t forget it.

According to court documents, on Dec. 3, 1998, at about 5 p.m., the 40-year-old was taken into custody by Nassau County police officers at the Glen Cove home of his estranged wife. Based on her complaint, O’Day was charged with contempt of court and violation of protective order. He was processed at the 6th Precinct in Great Neck and transported to the Nassau County Correctional Center (NCCC) in East Meadow.

Upon his arrival, at about 2 a.m., O’Day was greeted by three county corrections officers. They ordered him into a strip search room and told him to take off all his clothes. After an eyeball inspection by the officers, O’Day was ordered to turn around, squat, and “spread your cheeks.”


The officers then visually inspected his anal cavity. O’Day was then ordered to get dressed in an orange jumpsuit and escorted to a cell. Following a noon arraignment before a Family Court Judge, he was given a date for his next court appearance and released—but not before a second trip to the jail and a repeat of protocol. He was again ordered to strip, squat, and “spread your cheeks.”

O’Day, the charges against him dropped, was just one of approximately 17,000 people who were arrested, charged with misdemeanors or non-felony offenses and strip searched at NCCC between May 20, 1996 and June 1, 1999. His case is part of a consolidated class action brought against Nassau County, its sheriff’s department and others, open to all who fit this bill. Now, all these arrestees can expect a pay day, compliments of county taxpayers. A damages trial September 8 at federal court in Central Islip will determine just how much that is. O’Day, along with nine others, settled for $35,000 each in 2005.

Check Your Mailbox: Legal notices informing strip-searched misdemeanor arrestees about their inclusion in the class action have been sent out.

Check Your Mailbox: Legal notices informing strip-searched misdemeanor arrestees about their inclusion in the class action have been sent out.

Legal notices from the U.S. District Court, Eastern District of New York, have been mailed out to all those affected, informing them of their inclusion in the class action—Nassau County Strip Search Cases—seeking financial retribution for the searches, which were found unconstitutional in 1999 and affirmed in the Second Circuit Court of Appeals in 2001.

The class action consists of three separately filed cases: Augustin v. Jablonsky, O’Day v. Nassau County and Iaffaldano v. County of Nassau. Each alleges that Nassau County, former county Sheriff Joseph P. Jablonsky and various others established a blanket policy requiring corrections officers at the jail to strip search “everyone who was being held upon admission to the NCCC no matter what crime they were charged with and in violation of plaintiffs’ constitutional right to be free from unreasonable searches,” according to the notice. The suits also charge that the searches were conducted without any suspicion that the arrestees were concealing weapons or other contraband.

According to attorneys representing the plaintiffs and the county, the county has already conceded liability, so it’s not a matter of if money will be awarded, but how much.

“It had no basis for thinking that any of these people were secreting any weapons or drugs under their undergarments,” Robert L. Herbst, a partner at Manhattan-based Giskan Solotaroff Anderson & Stewart LLP and lead counsel for the class action, tells the Press. “These are all misdemeanor or petty offense people. We have people who were arrested for shoplifting or violation of an order of protection, a Family Court violation, or contempt.”

It was Herbst’s original case, Shain v. Ellison, which resulted in the 1999 ruling that found Nassau’s strip searches unconstitutional. He describes the searches as a violation of human dignity.

“It was unexpected and it’s shocking to have to take your clothes off and exhibit your genitals and your rear end to the corrections officer or, and in some cases, in full of view of other people as well,” he adds.

Nassau County Attorney Lorna Goodman explains that the county was found liable prior to the current administration, and that the strip searches had been going on for years and years. The jail has stopped the practice since it was found unconstitutional, she says, and described the process as an eyeball search by an officer of the same sex, with no touching, that lasted all of about 30 seconds to one minute in duration. “They may be on occasion asked to bend over or lift their breasts,” she says.

Goodman stresses that the subjects are stripped in private, with no one else in the room other than the same-sex corrections officer. The strip searches, she tells the Press, served a security benefit against smuggled contraband.

“Prior to this time no one felt that that was a constitutional violation,” says Goodman. “You have to understand that they are now going into a population, that they are not going to be locked in a cell. They’re most likely going to be in a dormitory, where they have free movement around the dormitory and in the eating areas and the recreation areas. And they could be a huge danger to other inmates if they had weapons, or a real danger to the population if they had drugs.

“We believe that it is minimally intrusive and serves a real safety purpose, however we have stopped doing it because it is against the law,” she adds.

Goodman says the damages awarded should be nominal. Mariann Wang, co-class counsel from the Manhattan-based law firm Emery Celli Brinckerhoff & Abady LLP, believes otherwise.

“It’s a very invasive process,” says Wang. “It’s not just, take your clothes off and be naked for a second and put clothes on. It is: Take your clothes off, get deliberately very slowly naked, and then stand in front of a correction officer, raise your arms, open your mouth, wiggle your tongue around, then turn around, lift your heels up, and bend over and spread your cheeks so that they can look up your anal cavity. I mean it’s really, really, really disgusting.”

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