On October 15, 2002, a man and woman represented by attorneys David G. Webbert of Augusta, Maine, and Howard Friedman of Boston, Massachusetts, filed a class action civil rights lawsuit pursuant to 42 U.S.C. § 1983 in the United States District Court for Maine. The lawsuit challenged the blanket policy of conducting routine, suspicionless strip searches of all pre-arraignment detainees entering the York County (Maine) Jail. Plaintiffs maintained that with every pre-trial detainee strip searched, regardless of the offense charged and whether there was reasonable cause to believe that each detainee carried concealed weapons or contraband, the policy violated the Fourth Amendment's prohibition against unreasonable search and seizure. Plaintiffs sought monetary damages and class certification.

The District Court (District Judge David B. Hornby) adopted and modified the report and recommendation of Magistrate Judge David M. Cohen and certified the case as a class action, with the class defined as follows:

All people strip-searched at the York County Jail after October 14, 1996, under a policy or custom of conducting strip-searches without evaluating individualized reasonable suspicion:

(1) while waiting for bail to be set or for a first court appearance after being arrested on charges that did not involve a weapon or drugs or a violent felony; or

(2) while waiting for a first court appearance after being arrested on a default or other warrant that did not involve a weapon or drugs or a violent felony.

Nilsen v. York County, 219 F.R.D. 19 (D. Me. 2003).

Defendants appealed and the case was consolidated on appeal with Tardiff v. Knox County, a similar case pending before a different district court judge. (See JC-ME-4 of this collection). The U.S. Circuit Court of Appeals for the First Circuit affirmed the class certification orders in both cases. Tardiff v. Knox County, 365 F.3d 1 (1st Cir. 2004) (Circuit Judge Michael Boudin).

After class certification was affirmed on appeal, the parties reached a tentative settlement and moved for preliminary court approval. Judge Hornby declined to give his preliminary approval of the settlement's provision that class members who were arrested multiple times receive no extra recovery for the resulting multiple strip searches. Rather, he advised the parties that he would rule on the issue following the fairness hearing, which he set for August 1, 2005. Nilsen v. York County, 228 F.R.D. 60 (D. Me. 2005). The Judge approved the class notice on Apr 01, 2005. Nilsen v. York County, 2005 WL 757859 (D. Me. 2005).

Following a fairness hearing on August 1, 2005, Judge Hornby approved the settlement in all respects, except the provision that called for the County to pay women twice as much as men. Nilsen v. York County, 382 F. Supp.2d 206 (D. Me. 2005). The parties then amended the settlement to provide equal settlement payments to male and female class members. Because of the amendment, female class members were given a new opportunity to opt out of the settlement. Judge Hornby approved the amended settlement. Nilsen v. York County, 400 F. Supp.2d 265 (D. Me. 2005).

Under the terms of the amended settlement, York County agreed to pay $3.3 million to settle the class claims. Of that amount, 20 class members received incentive awards totaling $25,500 for time spent working with class counsel on the settlement. York County also agreed to enact a new policy protecting the privacy of pre-trial detainees from illegal strip searches. Plaintiffs' attorneys were awarded fees of $825,000 (25% of $3.3 million fund). Nilsen v. York County, 400 F. Supp.2d 266 (D. Me. 2005). It was estimated that there were approximately 7,500 class members. Over 1,300 filed claims, constituting a participation rate of approximately 17.78%.

On November 30, 2005, Judge Hornsby recused himself from the case, in view of his spouse's business connections to the state. The case was reassigned to District Judge George Z. Singal. On June 26, 2006, Judge Singal directed the court clerk to close the case.

Dan Dalton - 02/17/2008


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