UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND
ERIC JONES P.O. Box 71 Harpers Ferry, WV 25425

and

DANA T. WEST 4212 St. Vincents Drive Baltimore, Maryland 21215
Individually, and on behalf of all others similarly situated

Case No.:

Plaintiffs v.

SUSAN MURPHY Warden, Baltimore Central Booking and Intake Center 300 East Madison Street Baltimore, Maryland 21202 Individually and in her Official Capacity

and

WILLIAM JEDNORSKI Former Warden, Baltimore Central Booking and Intake Center L.K.A. 300 East Madison Street Baltimore, Maryland 21202 Individually and in his Official Capacity

CITY OF BALTIMORE

100 North Holliday Street

Baltimore, Maryland 2120

Serve:

Martin O’Malley, Mayor

100 North Holliday Street

Baltimore, MD 21202

and BALTIMORE CITY POLICE

DEPARTMENT

601 East Fayette Street

Baltimore, MD 21202

Serve:

Leonard Hamm,

Police Commissioner

Defendants

CLASS ACTION
COMPLAINT FOR MONEY DAMAGES AND INJUNCTIVE RELIEF AND PRELIMINARY INJUNCTION, WITH JURY DEMAND

Introduction

1. Plaintiffs Eric Jones and Dana West bring this class action lawsuit on behalf of themselves and all other male arrestees who (1) were subjected to strip searches while being held in the Baltimore Central Booking and Intake Center (“Baltimore Booking Center”), waiting for presentment before a commissioner or other judicial officer on (a) misdemeanors not involving a weapon or drugs, or (b) non-violent, non-drug related felony charge(s); or (2) were subjected to strip, visual body cavity and/or squat searches not conducted in private; or (3) were subjected to blanket strip, visual body cavity and/or squat searches while being held in the Baltimore Booking Center, waiting for presentment before a judge or other judicial officer of the City of Baltimore regardless of the charges against them because similarly situated women were not subjected to such searches.

2. Plaintiff Eric Jones also brings this class action on behalf of himself and
all other persons who were arrested in the City of Baltimore but were not
brought before a commissioner or other judicial officer within 48 hours of their 2

arrest.
Classes
3. Plaintiffs move the Court to declare four separate classes, as described below. As used herein, “presentment” refers to the initial proceeding before the Court referred to in Maryland Rule 4-212(f). The time period for all classes is from three years prior to the filing of this Complaint through final judgment in this case.
4. Plaintiffs Dana West and Eric Jones and the class of persons they seek to represent (the “Suspicionless Arrestee Strip Search Class”) are arrestees arrested on (a) misdemeanors not involving a weapon or drugs, or (b) nonviolent, non-drug related felony charge(s) who were subjected to strip searches without any individualized finding of reasonable suspicion that they were concealing drugs, weapons or other contraband, by employees of the Baltimore Booking Center, while they were held in the Baltimore Booking Center waiting for presentment before a commissioner or other judicial officer.
5. The “Suspicionless Arrestee Strip Search Class Members” are not (prior to presentment) commingled with persons who have been ordered detained, at the Baltimore City Detention Center (either because they could not post a bond or are held without bond).
6. The Suspicionless Arrestee Strip Search Class Members base their claims on the Fourth Amendment of the United States Constitution, which prohibits
3

subjecting persons arrested on crimes not involving weapons or drugs to strip searches without an individualized finding of reasonable suspicion or probable cause that the person was concealing drugs, weapons or other contraband.
7. Plaintiffs Dana West and Eric Jones also seek to represent a class of arrestees (the “Non-Private Strip Search Class”) who were subjected to strip, visual body cavity and/or squat searches by employees of the Baltimore Booking Center in the presence of other arrested persons while they were held in the Baltimore Booking Center waiting for presentment before a commissioner or other judicial officer.
8. The Non-Private Strip Search Class Members base their claims on the Fourth Amendment of the United States Constitution, which prohibits subjecting persons to strip searches in a non-private setting. The Non-Private Strip Search Class includes all persons who were strip-searched regardless of the offense on which they were arrested because it is the manner of the search, rather than the lack of reasonable suspicion, that makes the search unreasonable under the Fourth Amendment.
9. Plaintiffs Dana West and Eric Jones additionally seek to represent a class (the “Equal Protection Strip Search Class”) of persons who are male arrestees arrested on all types of charges, including drug and violent offenses, who were subjected to strip, visual body cavity and/or squat searches, by employees of the Baltimore Booking Center, while they were held in the Baltimore Booking Center waiting for presentment before a commissioner or
4

other judicial officer. Defendants subject male arrestees to such searches, but do not subject similarly situated female arrestees, including women charged with drug and violent offenses, to the searches.
10. The Equal Protection Strip Search Class Members base their claims on the equal protection component of the due process clause of the Fourteenth Amendment of the United States Constitution, which prohibits treating similarly situated men and women differently based on their gender. The Equal Protection Strip Search Class includes all men who were strip-searched, regardless of the offense on which they were arrested, because it is the application of the search to men but not women, rather than the lack of reasonable suspicion, that makes the search unreasonable under the Fourteenth Amendment.
11. Plaintiff Eric Jones also seeks to represent a class (the “Untimely Presentment Class”) of persons who were arrested in the City of Baltimore and held at the Baltimore Booking Center for more than 48 hours after their arrest without presentment.
12. The Untimely Presentment Class Members base their claims on the Fourth Amendment of the United States Constitution, which requires a prompt presentment such as the one afforded by Maryland Rule 4-212(f), and creates a presumption of unreasonability and unconstitutionality if the pre-presentment detention exceeds 48 hours.
13. This action is brought, individually and on behalf of the Classes, against 5

Susan Murphy in her individual capacity, and William Jednorski in his individual capacity, and against the Government of the City of Baltimore and the Baltimore City Police Department, pursuant to Section 1983 of the Civil Rights Act of 1871, 42 U.S.C. § 1983, for damage and enforcement of their Fourth and Fourteenth Amendment Rights.
14. This action is brought by the Plaintiffs, individually and on behalf of the Classes, against Susan Murphy and William Jednorski in their official capacities as Wardens of the Baltimore Booking Center, pursuant to Section 1983 of the Civil Rights Act of 1871, 42 U.S.C. § 1983, and against the Government of the City of Baltimore and the Baltimore City Police Department, for prospective injunctive relief to enforce their Fourth and Fourteenth Amendment Rights.
Jurisdiction And Venue
15. This Court has federal question jurisdiction pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1343(a)(3) because plaintiffs’ claims are based on Section 1983 and the Constitution.
16. Venue is appropriate in this District. The claim for relief arose from events and occurrences in this judicial district.
Parties-Plaintiffs
17. Plaintiff Dana T. West was arrested by an officer of the Baltimore City Police Department on January 13, 2005 on a charge of leaving the scene of an
6

accident.
18. The Baltimore City Police Department, through its officer, placed Plaintiff Dana T. West into the custody of the Baltimore Booking Center on January 13, 2005.
19. Plaintiff Dana T. West was strip searched in the Baltimore Booking Center before presentment.
20. Plaintiff Dana T. West is a male.
21. Plaintiff Dana T. West was strip searched in the presence of other arrestees.
22. Plaintiff Dana T. West was released directly from the Baltimore Booking Center after posting a bond.
23. Plaintiff Dana T. West remains subject to conditions of release that can be revoked at the time this complaint is filed.
24. Plaintiff Dana T. West has standing to seek future injunctive relief because he is reasonably likely to be re-admitted to the Baltimore Booking Center.
25. Plaintiff Eric Jones was arrested on January 10, 2005, on charges of 2nd Degree Assault and False Imprisonment.
26. The Baltimore City Police Department, through its officer, placed Plaintiff Eric Jones into the custody of the Baltimore Booking Center on January 10, 2005.
27. Plaintiff Eric Jones was strip searched in the Baltimore Booking Center 7

before presentment. 28. Plaintiff Eric Jones is a male. 29. Plaintiff Eric Jones was strip searched in the presence of other arrestees. 30. Plaintiff Eric Jones was held for more than 48 hours before his presentment. 31. Plaintiff Eric Jones was released directly from the Baltimore Booking Center after posting a bond. 32. Plaintiff Jones has standing to seek future injunctive relief because he is reasonably likely to be re-admitted to the Baltimore Booking Center.
Parties-Defendants 33. Defendant Susan Murphy has been acting warden of the Baltimore Booking Center since March 2004 and official warden since July 2004. Defendant Susan Murphy was an assistant warden at the Baltimore Booking Center for several years before being appointed Warden. She is sued in her official and individual capacities. The section 1983 claim against her in her official capacity is for prospective injunctive relief only. 34. Defendant William Jednorski was warden of the Baltimore Booking Center from May 12, 2002 until March 2004. He is sued in his official and individual capacities. The section 1983 claim against him in his official
8

capacity is for prospective injunctive relief only.
35. Because there were Defendants Susan Murphy and Defendant William Jednorski were both Wardens responsible for the operation of the Baltimore Booking Center at different times, certain allegations are made herein with reference to the “the Warden.” Such allegations refer to each Defendants Susan Murphy and Defendant William Jednorski for the time period during which he or she was Warden.
36. At all times described herein, Defendants Susan Murphy and Defendant William Jednorski were acting under color of state law.
37. At all times described herein, Defendants Susan Murphy and Defendant William Jednorski were acting within the scope of his and her employment.
38. Defendant City of Baltimore is a municipal corporation with power to sue or be sued in any court.
39. The Baltimore City Police Department is a local government entity under Section 1983. The Baltimore City Police Department is subject to the control of the City of Baltimore for the functions described herein.
FACTUAL ALLEGATIONS
The Baltimore Booking Center
40. The Baltimore Central Booking and Central Intake Center opened in 1995 as the central location for booking and processing arrestees in Baltimore
9

City.
41. The Baltimore Booking Center is an agency of the Division of Pretrial Detention and Services, which in turn is a division of the Maryland Department of Public Safety and Correctional Services.
42. The Division of Pretrial Detention and Services has jurisdiction over three agencies which handle the booking, processing, custody and control of Baltimore City arrestees:
a. The Baltimore Central Booking and Intake Center;
b. The Baltimore City Detention Center; and
c. The Pretrial Release Service Program.
43. Nearly 100,000 arrestees are processed yearly in this internationally recognized center.
44. The Baltimore Booking Center is not a detention center where persons are held pending trial or in a post conviction stage.
45. The Baltimore City Detention Center is the pretrial detention facility for persons arrested in the City of Baltimore and detained while awaiting trial.
46. The Baltimore City Detention Center is in a separate building from the Baltimore Booking Center.
47. In the City of Baltimore, persons arrested by the Baltimore City Police Department are taken by the police to the Baltimore Booking Center for
10

booking and processing.
48. The Baltimore Booking Center contains a central booking unit, a medical unit, a classification unit, records unit, court commissioner's offices, video bail facilities, and a computerized Arrest Booking System.
49. The Arrest Booking System provides fingerprint based identification of offenders utilizing Live Scan fingerprint technology, coupled with the State of Maryland's Automated Fingerprint Identification System.
50. The Live Scan system employs technology that enables a positive identification of persons, that is, an identification based on the unique, biometric characteristic of fingerprints.
51. Many persons taken to the Baltimore Booking Center are arrestees who are brought in on very minor charges that could have been processed through citations (a citation is an order by a police officer to appear in court on a specified date without an arrest).
52. Police officials have identified the use of citations as one way to reduce the number of minor offenders who end up at the Baltimore Booking Center.
53. About 30 percent of the people whom city police arrest, and commit to the Baltimore Booking Center, not including those picked up on warrants, never even face charges, such as where prosecutors determine that there is not enough evidence to support a charge, or that the alleged wrongdoing, such as loitering, was abated by the arrest, and “decline” the case, that is, decline to
11

prosecute the case.
54. Persons arrested in warrantless arrests are held at the Baltimore Booking Center following arrest until their presentment before a commissioner for a probable cause determination, bail determination, appointment of counsel and other reasons.
55. Persons who are ordered detained before trial, or who are ordered held pending posting of bond, are held in the Baltimore Booking Center before being “committed” to the “Towers,” that is, the Baltimore City Detention Center.
56. Persons ordered released at presentment are segregated from the “committed” persons in separate holding areas pending release.
57. Persons ordered committed at presentment are held separately from both persons awaiting presentment, and persons ordered released at presentment.
58. In 2000, the Baltimore Booking Center processed 66,541 male arrestees and 15,854 female arrestees. Of the 82,395 people processed, 38,123 were released on their own recognizance. Upon information and belief, these numbers and percentages have approximately continued to the present time.
59. The Baltimore Booking Center has no effective inmate management system for booking and processing arrestees.
60. The Baltimore Booking Center does not maintain and update its computerized booking and inmate management systems and has allowed its booking and processing and inmate management systems to collapse.
12

61. Both wardens, in their time, have maintained a policy and practice of maintaining a presentment policy that simply delays all presentments until the system, in its sweet time, and with the resources it chooses, is ready to make presentments.
62. The fact that the Baltimore Booking Center has no effective booking or inmate management system has been documented by a series of reports and newspaper articles, as well as by court cases dating back many years.
63. The overcrowding, overdetentions, and premature releases are a longstanding, pervasive and continuing problem known to defendants.
The Warden’s Responsibilities For Inmates At The Baltimore Booking Center
95. The Warden’s duties include training, supervising, and disciplining Baltimore Booking Center staff.
96. The Warden’s duties also include formulating, implementing, and executing policies concerning the operation of the Baltimore Booking Center facilities.
97. These duties include promulgating and implementing policies controlling the strip searches of inmates, and promulgating and implementing policies ensuring the prompt presentment and release of inmates following their initial appearances.
98. The Warden has day-to-day training, supervisory, and disciplinary
13

authority for all operations of the Baltimore Booking Center.
99. The Warden is also responsible for ensuring that each employee of the Baltimore Booking Center discharges his or her duties in accordance with the law and court orders.
The Baltimore Booking Center Practice Of Strip Searching Arrestees
100. As used herein, “strip search” includes the removal, pulling down, or rearrangement of clothing for the visual inspection of an arrested person’s genital and/or anal areas, which may also include requiring the person to squat and cough, in the presence of guards and other inmates.
101. The Baltimore Booking Center has and has had informal practices of strip searching men in situations where similarly-situated women are not strip searched; of strip searching men arrested for crimes not commonly associated with the possession of weapons or drugs; and of strip searching persons in the presence of other arrested persons.
102. Staff at the Baltimore Booking Center subject virtually all men to strip searches before presentment without individualized reasonable suspicion based on appearance of arrestee, type of charge or other criteria.
103. Staff at the Baltimore Booking Center subject virtually no women to strip searches before presentment.
104. The Baltimore Booking Center does not have a written policy in place that permits strip searches before presentment without individualized
14

reasonable suspicion or reasonable suspicion based on type of charge or other criteria.
105. The Baltimore Booking Center does not have a written policy in place that authorizes the current practice of strip searching virtually all men while strip searching virtually no women.
106. As a result of these informal practices, virtually every male arrestee processed at the Baltimore Booking Center, after being arrested and awaiting presentment on charges involving drugs, weapons, or violence, is strip searched without an individual determination of reasonable suspicion to justify the search, and regardless of the crime with which the person is charged.
107. As a result of these informal practices, a substantial percentage of male arrestees male arrestee committed to the Baltimore Booking Center, after being arrested and awaiting presentment on charges not involving drugs, weapons, or violence, are subjected to a strip search conducted without an individual determination of reasonable suspicion to justify the search, and regardless of the crime with which the person is charged.
108. As a result of these informal practices, a majority of persons strip searched at the Baltimore Booking Center after being arrested and awaiting presentment are strip searched in the presence of other persons.
109. The Baltimore Booking Center does not keep any logs or other records of any individual strip searches performed during the booking process.
15

110. Warden Susan Murphy has had actual or constructive knowledge of the aforementioned practices since at least 2001.
111. During his tenure, Warden William Jednorski had actual or constructive knowledge of the aforementioned practices.
112. The City of Baltimore, and the Baltimore City Police Department, through their agents, have had actual or constructive knowledge of the aforementioned practices since at least 2001. Nonetheless, the City of Baltimore and the Baltimore City Police Department knowingly and as part of its policy, practice, and custom places its arrestees into the custody of the Baltimore Booking Center.
The Baltimore Booking Center Practice Of Detaining Arrestees Booked Into The Baltimore Booking Center
113. The Baltimore Booking Center, despite having presentments conducted on-site, has an informal practice of not timely presenting arrested persons.
114. As a result of these informal practices, a substantial percentage of persons arrested and processed at the Booking Center are detained for more than 48 hours after their arrests without a presentment.
115. The Baltimore Booking Center keeps computerized logs showing the times of arrest, arrival at the Baltimore Booking Center, presentment, and release, among other events.
116. Warden Susan Murphy has had actual or constructive knowledge of the 16

aforementioned practices since at least 2001.
117. During his tenure, Warden William Jednorski had actual or constructive knowledge of the aforementioned practices since at least 2001.
118. The City of Baltimore, and the Baltimore City Police Department, through their agents, have had actual or constructive knowledge of the aforementioned practices since at least 2001. Nonetheless, the City of Baltimore and the Baltimore City Police Department knowingly and as part of their policy, practice, and custom places its arrestees into the custody of the Baltimore Booking Center
Strip Search Class Action Allegations
119. The Suspicionless Arrestee Strip Search Named Plaintiffs bring this action under Rules 23(a), 23(b) (2), and 23(b) (3) of the Federal Rules of Civil Procedure on behalf of a class consisting of each person who, in the three years preceding the filing of this action, up until the date this case is terminated, was or will be, (a) while being held in the Baltimore Booking Center; (b) for presentment on either (c)(i) a misdemeanor not involving a weapon or drugs, or (ii) a non-violent, non-drug related felony; and (d) strip searched without any individualized finding of reasonable suspicion or probable cause that he was concealing drugs, weapons or other contraband.
120. Certification of a class under Federal Rule of Civil Procedure 23(b)(2) is appropriate because the Defendants engage in a pattern and practice of
17

conduct that has uniformly affected all members of the class, and injunctive relief against Defendants will benefit each and every plaintiff and class member.
121. The class is entitled to injunctive relief of terminating the above described custom and practice of searches not based on individualized or particularized suspicion or probable cause.
122. Certification of a class under Federal Rule of Civil Procedure 23(b)(3) is also appropriate, in that common questions of law and fact predominate over any individual questions, and a class action is superior for the fair and efficient adjudication of this controversy as detailed below.
123. Regarding the Suspicionless Arrestee Strip Search Named Plaintiffs, and members of the class, there are no individual questions on the issue of liability, because every member of the Class is subjected to the strip search practice, and none of the defendants has kept or keeps records of the searches and therefore none of the defendants can show that any of the searches were conducted based on an individual determination of reasonable suspicion. Should records exist demonstrating that such an individualized suspicion was used in the strip search determination, such people would, by definition, not be members of the class.
124. Among the questions of law and fact common to the class are:
a. whether the Defendant Wardens and Baltimore Booking
18

Center have and have had custom and practice of subjecting arrestees being held in the Baltimore Booking Center pending presentment to strip searches without an individualized determination that the person was in possession of drugs, weapons, or other contraband;
b. whether such custom and practice, if found to exist, violates the Fourth Amendment;
c. whether the defendants were deliberately indifferent to the rights of such arrestees;
d. whether plaintiffs and the members of the class have sustained damages and, if so, the proper measure of such damages;
e. whether plaintiffs and the members of the class and future members are entitled to equitable relief, and, if so, what is the nature of that relief; and
f. whether determination of damages suffered by a statistically representative sample of the class provides the basis for determination of all class members’ damages except those who opt out.
125. The class is so numerous that joinder of all members is impracticable. The exact number of class members is unknown to plaintiffs at this time, but is likely to consist of at least many thousands of people.
126. The Baltimore Booking Center has within its records the names and addresses of all the current and past class members in its computerized
19

booking system.
127. The Suspicionless Arrestee Strip Search Named Plaintiffs’ claims are typical of the claims of the other members of the class, because they and all other members of the class were injured by exactly the same means, that is, by the unlawful strip searches.
128. The Suspicionless Arrestee Strip Search Named Plaintiffs will fairly and adequately protect the interests of the members of the class and have retained counsel who are competent and experienced in complex federal civil rights class action litigation and/or complex federal prisoner rights litigation.
129. The Suspicionless Arrestee Strip Search Named Plaintiffs have no interests that are contrary to or in conflict with those of the class.
130. The Suspicionless Arrestee Strip Search Named Plaintiffs know of no difficulty that will be encountered in the management of this litigation that would preclude its maintenance as a class action, and the class action is superior to any other available means to resolve the issues raised on behalf of the Suspicionless Arrestee Strip Search Class. The class action will be manageable, in part, because such an advanced computerized system exists from which to ascertain the members of the putative class. For example, the Baltimore Booking Center had stated that it has “the most advanced technological system in the world for processing arrestees.” Class treatment will be superior because liability can be determined on a class wide basis, and damages can also be determined on a class wide basis through use of
20

statistical sampling.
Non-Private Strip Search Class Action Allegations
131. The Non-Private Strip Search Named Plaintiffs bring this action under Rules 23(a), 23(b) (2), and 23(b) (3) of the Federal Rules of Civil Procedure on behalf of a class consisting of each person who, in the three years preceding the filing of this action, up until the date this case is terminated, was or will be, (a) while being held in the Baltimore Booking Center; (b) for presentment; and (d) strip searched in the presence of other arrestees.
132. Certification of a class under Federal Rule of Civil Procedure 23(b)(2) is appropriate because the Defendants engage in a pattern and practice of conduct that has uniformly affected all members of the class, and injunctive relief against Defendants will benefit each and every plaintiff and class member.
133. The class is entitled to injunctive relief of terminating the above described custom and practice of searches not in private.
134. Certification of a class under Federal Rule of Civil Procedure 23(b)(3) is also appropriate, in that common questions of law and fact predominate over any individual questions, and a class action is superior for the fair and efficient adjudication of this controversy as detailed below.
135. Regarding the Non-Private Strip Search Named Plaintiffs, and members of the class, there are no individual questions on the issue of liability, because
21

every member of the Class is subjected to the non-private strip search.
136. Among the questions of law and fact common to the class are:
a. whether the Defendant Wardens and Baltimore Booking Center have and have had custom and practice of subjecting arrestees being held in the Baltimore Booking Center pending presentment to strip searches in the presence of other arrested persons;
b. whether such custom and practice, if found to exist, violates the Fourth Amendment;
c. whether the defendants were deliberately indifferent to the rights of such arrestees;
d. whether plaintiffs and the members of the class have sustained damages and, if so, the proper measure of such damages;
e. whether plaintiffs and the members of the class and future members are entitled to equitable relief, and, if so, what is the nature of that relief; and
f. whether determination of damages suffered by a statistically representative sample of the class provides the basis for determination of all class members’ damages except those who opt out.
137. The class is so numerous that joinder of all members is impracticable. The exact number of class members is unknown to plaintiffs at this time, but is
22

likely to consist of at least many thousands of people.
138. The Baltimore Booking Center has within its records the names and addresses of all the current and past class members in its computerized booking system.
139. The Non-Private Strip Search Named Plaintiffs’ claims are typical of the claims of the other members of the class, because they and all other members of the class were injured by exactly the same means, that is, by the unlawful strip searches.
140. The Non-Private Strip Search Named Plaintiffs will fairly and adequately protect the interests of the members of the class and have retained counsel who are competent and experienced in complex federal civil rights class action litigation and/or complex federal prisoner rights litigation.
141. The Non-Private Strip Search Named Plaintiffs have no interests that are contrary to or in conflict with those of the class.
142. The Non-Private Strip Search Named Plaintiffs know of no difficulty that will be encountered in the management of this litigation that would preclude its maintenance as a class action, and the class action is superior to any other available means to resolve the issues raised on behalf of the Non-Private Strip Search Class. The class action will be in part manageable because such an advanced computerized system exists from which to ascertain the members of the putative class. For example, the Baltimore Booking Center had stated that
23

it has “the most advanced technological system in the world for processing arrestees.” Class treatment will be superior because liability can be determined on a class wide basis, and damages can also be determined on a class wide basis through use of statistical sampling.
Equal Protection Strip Search Class Action Allegations
143. The Equal Protection Strip Search Named Plaintiffs bring this action under Rules 23(a), 23(b) (2), and 23(b) (3) of the Federal Rules of Civil Procedure on behalf of a class consisting of each person who, in the three years preceding the filing of this action, up until the date this case is terminated, is (a) a male; (b) who was or will be held in the Baltimore Booking Center; (b) for presentment; and (d) was strip searched.
144. Certification of a class under Federal Rule of Civil Procedure 23(b)(2) is appropriate because the Defendants engage in a pattern and practice of conduct that has uniformly affected all members of the class, and injunctive relief against Defendants will benefit each and every plaintiff and class member.
145. The class is entitled to injunctive relief of terminating the above described custom and practice of searches of males where similarly-situated females are not strip searched.
146. Certification of a class under Federal Rule of Civil Procedure 23(b)(3) is also appropriate, in that common questions of law and fact predominate over
24

any individual questions, and a class action is superior for the fair and efficient adjudication of this controversy as detailed below.
147. Regarding the Equal Protection Strip Search Named Plaintiffs, and members of the class, there are no individual questions on the issue of liability, because every member of the Class is subjected to the discriminatory strip search.
148. Among the questions of law and fact common to the class are:
a. whether the Defendant Wardens and Baltimore Booking Center have and have had custom and practice of subjecting male arrestees being held in the Baltimore Booking Center pending presentment to strip searches under circumstances where similarly-situated female arrestees are not strip searched;
b. whether such custom and practice, if found to exist, violates the Fourteenth Amendment;
c. whether the defendants were deliberately indifferent to the rights of such arrestees;
d. whether plaintiffs and the members of the class have sustained damages and, if so, the proper measure of such damages;
e. whether plaintiffs and the members of the class and future members are entitled to equitable relief, and, if so, what is the nature of that relief; and
25

f. whether determination of damages suffered by a statistically representative sample of the class provides the basis for determination of all class members’ damages except those who opt out.
149. The class is so numerous that joinder of all members is impracticable. The exact number of class members is unknown to plaintiffs at this time, but is likely to consist of at least many thousands of people.
150. The Baltimore Booking Center has within its records the names and addresses of all the current and past class members in its computerized booking system.
151. The Equal Protection Strip Search Named Plaintiffs’ claims are typical of the claims of the other members of the class, because they and all other members of the class were injured by exactly the same means, that is, by the unlawful strip searches.
152. The Equal Protection Strip Search Named Plaintiffs will fairly and adequately protect the interests of the members of the class and has retained counsel who are competent and experienced in complex federal civil rights class action litigation and/or complex federal prisoner rights litigation.
153. The Equal Protection Strip Search Named Plaintiffs have no interests that are contrary to or in conflict with those of the class.
154. The Equal Protection Strip Search Named Plaintiffs know of no difficulty that will be encountered in the management of this litigation that would
26

preclude its maintenance as a class action, and the class action is superior to any other available means to resolve the issues raised on behalf of the Equal Protection Strip Search Class. The class action will be in part manageable because such an advanced computerized system exists from which to ascertain the members of the putative class. For example, the Baltimore Booking Center had stated that it has “the most advanced technological system in the world for processing arrestees.” Class treatment will be superior because liability can be determined on a class wide basis, and damages can also be determined on a class wide basis through use of statistical sampling.
Untimely Presentment Class Action Allegations
155. The Untimely Presentment Named Plaintiff brings this action under Rules 23(a), 23(b) (2), and 23(b) (3) of the Federal Rules of Civil Procedure on behalf of a class consisting of each person who, in the three years preceding the filing of this action, up until the date this case is terminated, (a) was or will be arrested in the City of Baltimore; and (b) was or is detained without presentment before a commissioner or other judicial officer for more than 48 hours after arrest.
156. Certification of a class under Federal Rule of Civil Procedure 23(b)(2) is appropriate because the Defendants engage in a pattern and practice of conduct that has uniformly affected all members of the class, and injunctive relief against Defendants will benefit each and every plaintiff and class member.
27

157. The class is entitled to injunctive relief of terminating the above described custom and practice of not timely presenting arrestees before a commissioner or other judicial officer.
158. Certification of a class under Federal Rule of Civil Procedure 23(b)(3) is also appropriate, in that common questions of law and fact predominate over any individual questions, and a class action is superior for the fair and efficient adjudication of this controversy as detailed below.
159. Regarding the Untimely Presentment Named Plaintiff, and members of the class, there are no individual questions on the issue of liability, because every member of the Class is denied a timely presentment.
160. Among the questions of law and fact common to the class are:
a. whether the Defendant Wardens and Baltimore Booking Center have and have had custom and practice of detaining arrestees without a presentment for more than 48 hours after their arrest;
b. whether such custom and practice, if found to exist, violates the Fourth Amendment;
c. whether the defendants were deliberately indifferent to the rights of such arrestees;
d. whether plaintiffs and the members of the class have sustained damages and, if so, the proper measure of such damages;
28

e. whether plaintiffs and the members of the class and future members are entitled to equitable relief, and, if so, what is the nature of that relief; and
f. whether determination of damages suffered by a statistically representative sample of the class provides the basis for determination of all class members’ damages except those who opt out.
161. The class is so numerous that joinder of all members is impracticable. The exact number of class members is unknown to plaintiffs at this time, but is likely to consist of at least many hundreds of people.
162. The Baltimore Booking Center has within its records the names and addresses of all the current and past class members in its computerized booking system.
163. The Untimely Presentment Named Plaintiff’s claims are typical of the claims of the other members of the class, because he and all other members of the class were injured by exactly the same means, that is, by their post-arrest detention exceeding 48 hours prior to presentment.
164. The Untimely Presentment Named Plaintiff will fairly and adequately protect the interests of the members of the class and has retained counsel who are competent and experienced in complex federal civil rights class action litigation and/or complex federal prisoner rights litigation.
165. The Untimely Presentment Named Plaintiff has no interests that are 29

contrary to or in conflict with those of the class.
166. The Untimely Presentment Named Plaintiff knows of no difficulty that will be encountered in the management of this litigation that would preclude its maintenance as a class action, and the class action is superior to any other available means to resolve the issues raised on behalf of the Untimely Presentment Class. The class action will be in part manageable because such an advanced computerized system exists from which to ascertain the members of the putative class, and that contains the times of all relevant events for determining the length of detention beyond 48 hours. For example, the Baltimore Booking Center had stated that it has “the most advanced technological system in the world for processing arrestees.” Class treatment will be superior because liability can be determined on a class wide basis, and damages can also be determined on a class wide basis through use of statistical sampling.
SUBSTANTIVE ALLEGATIONS
COUNT 1
167. The Suspicionless Arrestee Strip Search Named Plaintiffs re-allege and incorporate by reference all allegations set forth above in this Complaint.
168. This Count is filed against Defendants Murphy and Jednorski in their individual capacities for all purposes, and their official capacities for purposes of prospective injunctive relief.
30

169. While being held for presentment in the Baltimore Booking Center on (a) misdemeanors not involving a weapon or drugs, or (b) non-violent, non-drug related felony charge(s), each of the Suspicionless Arrestee Strip Search Named Plaintiffs and every other class member were subjected to a strip search without an individual determination that the search would reveal weapons, drugs or other contraband.
170. Subjecting an arrestee arrested on a non-drug, non-weapon misdemeanor, or a non-drug, non-violent felony to a strip search without an individual determination that the search would reveal weapons, drugs or other contraband violates his or her Fourth Amendment Rights.
171. The Defendants had actual or constructive knowledge that the Suspicionless Arrestee Strip Search Named Plaintiffs and other class members were being or would be subject to the strip searches and acquiesced in the searches.
172. Defendants Murphy and Jednorski failed to supervise and train their staff in strip searches when the need for supervision and training was obvious, and remained inactive in the face of actual or constructive notice of the illegal searches.
173. Defendants’ actions, and failure to act, as described above, directly and proximately and affirmatively were the moving force behind the violations of the Suspicionless Arrestee Strip Search Named Plaintiffs’ and the class members’ Fourth Amendment Rights.
31

174. Defendants Murphy and Jednorski engaged in and oversaw the customs and practices described above, which were the moving force behind the deprivations to the Suspicionless Arrestee Strip Search Named Plaintiffs’ and other class members’ Fourth Amendment Rights, and the Suspicionless Arrestee Strip Search Named Plaintiffs and the other class members’ injuries resulting from the strip searches.
175. Defendants Murphy and Jednorski caused the unreasonable strip search of the Suspicionless Arrestee Strip Search Named Plaintiffs and all other class members by deliberate indifference to the risk of constitutional injury by maintaining and/or acquiescing in a practice and custom of strip searching arrestees as described above.
176. Defendants Murphy and Jednorski acted intentionally and unreasonably in violation of the Fourth Amendment rights of the Suspicionless Arrestee Strip Search Named Plaintiffs and all other class members
177. For all actions relating to this complaint, Defendants Murphy and Jednorski and other employees of the Baltimore Booking Center were acting within the scope of their employment, their acts were motivated by a desire to further the interests of the Baltimore Booking Center, the City of Baltimore, and the State of Maryland, and such employees were acting in furtherance of the business of the Baltimore Booking Center, the City of Baltimore, and the State of Maryland.
178. Defendants Murphy and Jednorski are therefore liable under 42 U.S.C. § 32

1983 for constitutional injuries to the Suspicionless Arrestee Strip Search Named Plaintiffs and all other class members caused by their conduct.
COUNT 2
179. The Non-Private Strip Search Named Plaintiffs re-allege and incorporate by reference all allegations set forth above in this Complaint.
180. This Count is filed against Defendants Murphy and Jednorski in their individual capacities for all purposes, and their official capacities for purposes of prospective injunctive relief.
181. While being held for presentment in the Baltimore Booking Center, each of the Non-Private Strip Search Named Plaintiffs and every other class member were subjected to a strip search in the presence of other arrested persons or in an otherwise non-private setting.
182. Subjecting an arrestee to a non-private strip search violates his or her Fourth Amendment Rights, regardless of the charge or suspicion.
183. The Defendants had actual or constructive knowledge that the NonPrivate Strip Search Named Plaintiffs and other class members were being or would be subject to the strip search and acquiesced in the searches.
184. Defendants Murphy and Jednorski failed to supervise and train their staff in strip searches when the need for supervision and training was obvious, and remained inactive in the face of actual or constructive notice of the illegal searches.
33

185. Defendants’ actions, and failure to act, as described above, directly and proximately and affirmatively were the moving force behind the violations of the Non-Private Strip Search Named Plaintiffs’ and the class members’ Fourth Amendment Rights.
186. Defendants Murphy and Jednorski engaged in and oversaw the customs and practices described above, which were the moving force behind the deprivations to the Non-Private Strip Search Named Plaintiffs’ and other class members’ Fourth Amendment Rights, and Non-Private Strip Search Named Plaintiffs and the other class members’ injuries resulting from the strip searches.
187. Defendants Murphy and Jednorski caused the unreasonable strip searches of the Non-Private Strip Search Named Plaintiffs and all other class members by deliberate indifference to the risk of constitutional injury by maintaining and/or acquiescing in a practice and custom of strip searching arrestees as described above.
188. Defendants Murphy and Jednorski acted intentionally and unreasonably in violation of the Fourth Amendment rights of the Non-Private Strip Search Named Plaintiffs and all other class members
189. For all actions relating to this complaint, Defendants Murphy and Jednorski and other employees of the Baltimore Booking Center were acting within the scope of their employment, their acts were motivated by a desire to further the interests of the Baltimore Booking Center, the City of Baltimore,
34

and the State of Maryland, and such employees were acting in furtherance of the business of the Baltimore Booking Center, the City of Baltimore, and the State of Maryland.
190. Defendant Murphy and Jednorski are therefore liable under 42 U.S.C. § 1983 for constitutional injuries to the Non-Private Strip Search Named Plaintiffs and all other class members caused by their conduct.
COUNT 3
191. The Equal Protection Strip Search Named Plaintiffs re-alleges and incorporates by reference all allegations set forth above in this Complaint.
192. This Count is filed against Defendants Murphy and Jednorski in their individual capacities for all purposes, and their official capacities for purposes of prospective injunctive relief.
193. While being held for presentment in the Baltimore Booking Center, each of the Equal Protection Named Plaintiffs and every other class member were male, and were subjected to a strip search under a custom and policy that caused them to be strip searched but not similarly-situated women.
194. There is no legitimate governmental interest justifying the different treatment between men and women.
195. Subjecting an arrestee to a strip search on the basis of gender, regardless of the charge or suspicion, violates his or her Fourteenth Amendment Rights.
35

196. The Defendants had actual or constructive knowledge that the Equal Protection Named Plaintiffs and other class members were being or would be subjected to the strip searches and acquiesced in the searches.
197. Defendants Murphy and Jednorski failed to supervise and train their staff in strip searches when the need for supervision and training was obvious, and remained inactive in the face of actual or constructive notice of the illegal searches.
198. Defendants’ actions, and failure to act, as described above, directly and proximately and affirmatively were the moving force behind the violations of the Equal Protection Strip Search Named Plaintiffs’ and the class members’ Fourteenth Amendment Rights.
199. Defendants Murphy and Jednorski engaged in and oversaw the customs and practices described above, which were the moving force behind the deprivations to the Equal Protection Strip Search Named Plaintiffs’ and other class members’ Fourteenth Amendment Rights, and Equal Protection Strip Search Named Plaintiffs and the other class members’ injuries resulting from the strip searches.
200. Defendants Murphy and Jednorski caused the unreasonable strip searches of the Equal Protection Strip Search Named Plaintiffs and all other class members by deliberate indifference to the risk of constitutional injury by maintaining and/or acquiescing in a practice and custom of strip searching arrestees as described above.
36

201. Defendants Murphy and Jednorski acted intentionally and unreasonably in violation of the Fourteenth Amendment rights of the Equal Protection Strip Search Named Plaintiffs and all other class members
202. For all actions relating to this complaint, Defendants Murphy and Jednorski and other employees of the Baltimore Booking Center were acting within the scope of their employment, their acts were motivated by a desire to further the interests of the Baltimore Booking Center, the City of Baltimore, and the State of Maryland, and such employees were acting in furtherance of the business of the Baltimore Booking Center, the City of Baltimore, and the State of Maryland.
203. Defendant Murphy and Jednorski are therefore liable under 42 U.S.C. § 1983 for constitutional injuries to the Equal Protection Strip Search Named Plaintiffs and all other class members caused by their conduct.
COUNT 4
204. The Untimely Presentment Named Plaintiff re-alleges and incorporates by reference all allegations set forth above in this Complaint.
205. This Count is filed against Defendants Murphy and Jednorski in their individual capacities for all purposes, and their official capacities for purposes of prospective injunctive relief.
206. After their arrests, each of the Untimely Presentment Named Plaintiff and every other class member was held for more than 48 hours prior to
37

presentment.
207. Holding an arrestee for more than 48 hours prior to presentment violates his or her Fourth Amendment Rights.
208. The Defendants had actual or constructive knowledge that the Untimely Presentment Named Plaintiff and other class members were being or would be held for more than 48 hours prior to presentment and acquiesced in the detention without presentment.
209. Defendants Murphy and Jednorski failed to supervise and train their staff in the need for prompt presentments when the need for supervision training was obvious, and remained inactive in the face of actual or constructive notice of the illegal detentions without presentment.
210. Defendants’ actions, and failure to act, as described above, directly and proximately and affirmatively were the moving force behind the violations of the Untimely Presentment Named Plaintiff’s and the class members’ Fourth Amendment Rights.
211. Defendants Murphy and Jednorski engaged in and oversaw the customs and practices described above, which were the moving force behind the deprivations to the Untimely Presentment Named Plaintiff’s and other class members’ Fourth Amendment Rights, and Untimely Presentment Named Plaintiff and the other class members’ injuries resulting from the detention without presentment.
38

212. Defendants Murphy and Jednorski caused the detention without presentment of the Untimely Presentment Named Plaintiff and all other class members by deliberate indifference to the risk of constitutional injury by maintaining and/or acquiescing in a practice and custom of detaining them for more than 48 hours without presentment.
213. Defendants Murphy and Jednorski acted intentionally and unreasonably in violation of the Fourth Amendment rights of the Untimely Presentment Named Plaintiff and all other class members
214. For all actions relating to this complaint, Defendants Murphy and Jednorski and other employees of the Baltimore Booking Center were acting within the scope of their employment, their acts were motivated by a desire to further the interests of the Baltimore Booking Center, the City of Baltimore, and the State of Maryland, and such employees were acting in furtherance of the business of the Baltimore Booking Center, the City of Baltimore, and the State of Maryland.
215. Defendant Murphy and Jednorski are therefore liable under 42 U.S.C. § 1983 for constitutional injuries to the Untimely Presentment Named Plaintiff and all other class members caused by their conduct.
COUNT 5
216. The Suspicionless Arrestee Strip Search Named Plaintiffs re-allege and incorporate by reference all allegations set forth above in this Complaint.
39

217. This Count is filed against Defendants City of Baltimore and the Baltimore City Police Department for their policies, customs, and practices violating the constitutional rights of the Suspicionless Arrestee Strip Search Named Plaintiffs and other class members.
218. All actions by the City of Baltimore and the Baltimore City Police Department alleged herein are pursuant to the policies, customs, and practices of the Baltimore City Police Department and the City of Baltimore.
219. The City of Baltimore and the Baltimore City Police Department transport substantial numbers of arrested persons, including the Suspicionless Arrestee Strip Search Named Plaintiffs and all other class members, to the Baltimore Booking Center, and place them into the custody of the Baltimore Booking Center.
220. The City of Baltimore and the Baltimore City Police Department transport the Suspicionless Arrestee Strip Search Named Plaintiffs and all other class members to and place them in the custody of the Baltimore Booking Center, with the actual or constructive knowledge that the Suspicionless Arrestee Strip Search Named Plaintiffs and other class members will be subjected to the constitutional violations set forth in Count 1.
221. The City of Baltimore had control over the City’s and the Baltimore City Police Department’s policy of transporting arrested persons to and placing them in the custody of the Baltimore Booking Center.
222. The City of Baltimore and the Baltimore City Police Department knew
40

that Defendant Wardens were deliberately indifferent to the rights of the Suspicionless Arrestee Strip Search Named Plaintiffs and the other class members to be free from the constitutional violations set forth in Count 1.
223. Still, the City of Baltimore and the Baltimore City Police Department have continued during the relevant class period to place the Suspicionless Arrestee Strip Search Named Plaintiffs and the other class members into the custody of the Baltimore Booking Center.
224. The City of Baltimore’s and the Baltimore City Police Department’s deliberate indifference to the rights of the Suspicionless Arrestee Strip Search Named Plaintiffs and the other class members to be free from strip searches without an individualized finding of reasonable suspicion as part of the booking process was the moving force behind their injuries.
225. Defendants City of Baltimore and Baltimore City Police Department are therefore liable under the Fourth and the Fourteenth Amendments through 42 U.S.C. §1983 for constitutional injuries to the Suspicionless Arrestee Strip Search Named Plaintiffs and all other class members caused by their conduct described herein and are jointly and severally liable with all other defendants for injuries caused by their conduct described herein.
COUNT 6
226. The Non-Private Strip Search Named Plaintiffs re-allege and incorporate by reference all allegations set forth above in this Complaint.
41

227. This Count is filed against Defendants City of Baltimore and the Baltimore City Police Department for their policies, customs, and practices violating the constitutional rights of the Non-Private Strip Search Named Plaintiffs and other class members.
228. All actions by the City of Baltimore and the Baltimore City Police Department alleged herein are pursuant to the policies, customs, and practices of the Baltimore City Police Department and the City of Baltimore.
229. The City of Baltimore and the Baltimore City Police Department transport substantial numbers of arrested persons, including the Non-Private Strip Search Named Plaintiffs and all other class members, to the Baltimore Booking Center, and place them into the custody of the Baltimore Booking Center.
230. The City of Baltimore and the Baltimore City Police Department transport the Non-Private Strip Search Named Plaintiffs and all other class members to and place them in the custody of the Baltimore Booking Center, with the actual or constructive knowledge that the Non-Private Strip Search Named Plaintiffs and other class members will be subjected to the constitutional violations set forth in Count 2.
231. The City of Baltimore had control over the City’s and the Baltimore City Police Department’s policy of transporting arrested persons to and placing them in the custody of the Baltimore Booking Center.
232. The City of Baltimore and the Baltimore City Police Department knew that Defendant Wardens were deliberately indifferent to the rights of the Non-
42

Private Strip Search Named Plaintiffs and the other class members to be free from the constitutional violations set forth in Count 2.
233. Still, the City of Baltimore and the Baltimore City Police Department have continued during the relevant class period to place the Non-Private Strip Search Named Plaintiffs and the other class members into the custody of the Baltimore Booking Center.
234. The City of Baltimore’s and the Baltimore City Police Department’s deliberate indifference to the rights of the Non-Private Strip Search Named Plaintiffs and the other class members to be free from non-private strip searches was the moving force behind their injuries.
235. Defendants City of Baltimore and Baltimore City Police Department are therefore liable under the Fourth and the Fourteenth Amendments through 42 U.S.C. §1983 for constitutional injuries to the Non-Private Strip Search Named Plaintiffs and all other class members caused by their conduct described herein and are jointly and severally liable with all other defendants for injuries caused by their conduct described herein.
COUNT 7
236. The Equal Protection Strip Search Named Plaintiffs re-allege and incorporate by reference all allegations set forth above in this Complaint.
237. This Count is filed against Defendants City of Baltimore and the Baltimore City Police Department for their policies, customs, and practices
43

violating the constitutional rights of the Equal Protection Strip Search Named Plaintiffs and other class members.
238. All actions by the City of Baltimore and the Baltimore City Police Department alleged herein are pursuant to the policies, customs, and practices of the Baltimore City Police Department and the City of Baltimore.
239. The City of Baltimore and the Baltimore City Police Department transport substantial numbers of arrested persons, including the Equal Protection Strip Search Named Plaintiffs and all other class members, to the Baltimore Booking Center, and place them into the custody of the Baltimore Booking Center.
240. The City of Baltimore and the Baltimore City Police Department transport the Equal Protection Strip Search Named Plaintiffs and all other class members to and place them in the custody of the Baltimore Booking Center, with the actual or constructive knowledge that the Equal Protection Strip Search Named Plaintiffs and other class members will be subjected to the constitutional violations set forth in Count 3.
241. The City of Baltimore had control over the City’s and the Baltimore City Police Department’s policy of transporting arrested persons to and placing them in the custody of the Baltimore Booking Center.
242. The City of Baltimore and the Baltimore City Police Department knew that Defendant Wardens were deliberately indifferent to the rights of the Equal Protection Strip Search Named Plaintiffs and the other class members to be free from the constitutional violations set forth in Count 3.
44

243. Still, the City of Baltimore and the Baltimore City Police Department have continued during the relevant class period to place the Equal Protection Strip Search Named Plaintiffs and the other class members into the custody of the Baltimore Booking Center.
244. The City of Baltimore’s and the Baltimore City Police Department’s deliberate indifference to the rights of the Equal Protection Strip Search Named Plaintiffs and the other class members to be free from strip searches based on gender was the moving force behind their injuries.
245. Defendants City of Baltimore and Baltimore City Police Department are therefore liable under the Fourth and the Fourteenth Amendments through 42 U.S.C. §1983 for constitutional injuries to the Equal Protection Strip Search Named Plaintiffs and all other class members caused by their conduct described herein and are jointly and severally liable with all other defendants for injuries caused by their conduct described herein.
COUNT 8
246. The Untimely Presentment Named Plaintiff re-alleges and incorporates by reference all allegations set forth above in this Complaint.
247. This Count is filed against Defendants City of Baltimore and the Baltimore City Police Department for their policies, customs, and practices violating the constitutional rights of the Untimely Presentment Named Plaintiff and other class members.
45

248. All actions by the City of Baltimore and the Baltimore City Police Department alleged herein are pursuant to the policies, customs, and practices of the Baltimore City Police Department and the City of Baltimore.
249. The City of Baltimore and the Baltimore City Police Department transport substantial numbers of arrested persons, including the Untimely Presentment Named Plaintiff and all other class members, to the Baltimore Booking Center, and place them into the custody of the Baltimore Booking Center.
250. The City of Baltimore and the Baltimore City Police Department transport the Untimely Presentment Named Plaintiff and all other class members to and place them in the custody of the Baltimore Booking Center, with the actual or constructive knowledge that the Untimely Presentment Named Plaintiff and other class members will be subjected to the constitutional violations set forth in Count 4.
251. The City of Baltimore had control over the City’s and the Baltimore City Police Department’s policy of transporting arrested persons to and placing them in the custody of the Baltimore Booking Center.
252. The City of Baltimore and the Baltimore City Police Department knew that Defendant Wardens were deliberately indifferent to the rights of the Untimely Presentment Named Plaintiff and the other class members to be free from the constitutional violations set forth in Count 4.
253. Still, the City of Baltimore and the Baltimore City Police Department have continued during the relevant class period to place the Untimely
46

Presentment Named Plaintiff and the other class members into the custody of the Baltimore Booking Center.
254. The City of Baltimore’s and the Baltimore City Police Department’s deliberate indifference to the rights of the Untimely Presentment Named Plaintiff and the other class members to be free from detention without presentment within 48 hours was the moving force behind their injuries.
255. Defendants City of Baltimore and Baltimore City Police Department are therefore liable under the Fourth and the Fourteenth Amendments through 42 U.S.C. §1983 for constitutional injuries to the Untimely Presentment Named Plaintiff and all other class members caused by their conduct described herein and are jointly and severally liable with all other defendants for injuries caused by their conduct described herein.
IRREPARABLE INJURY AND INJUNCTIVE RELIEF
256. Defendants are unreasonably subjecting members of each respective Class to strip searches, and detaining them without prompt presentment, which irreparably harms them, and will continue to irreparably harm them, even if they are later able to recover compensatory damages, thus making declaratory and injunctive relief necessary .
257. The named plaintiffs have standing to assert injunctive relief because they are reasonably likely to be re-admitted to the Baltimore Booking Center and suffer the same harms again.
47

REQUEST FOR RELIEF
WHEREFORE, the Named Plaintiffs respectfully request that this Court grant the following relief:
1) grant a jury trial on all claims so triable;
2) declare that each cause of action may be maintained as a class action pursuant to Federal Rule of Civil Procedure 23(b)(2) and 23(b)(3) and certify the following classes with the Named Plaintiffs as the Class representatives:
a. Suspicionless Arrestee Strip Search Class: All persons arrested since May 12, 2002 on (a) misdemeanors not involving a weapon or drugs, or (b) non-violent, non-drug related felony charge(s) who were subjected to strip, visual body cavity and/or squat searches without any individualized finding of reasonable suspicion that they were concealing drugs, weapons or other contraband, by employees of the Baltimore Booking Center, while they were held in the Baltimore Booking Center waiting for presentment before a commissioner or other judicial officer.
b. Non-Private Strip Search Class: All persons who since May 12, 2002 were subjected to strip searches by employees of the Baltimore Booking Center in the presence of other arrested persons while they were held in the Baltimore Booking Center waiting for presentment before a commissioner or other judicial officer.
48

c. Equal Protection Strip Search Class: All persons who are male arrestees arrested on all types of charges since May 12, 2002, including drug and violent offenses, who were subjected to strip, visual body cavity and/or squat searches, by employees of the Baltimore Booking Center, while they were held in the Baltimore Booking Center waiting for presentment before a commissioner or other judicial officer.
d. Untimely Presentment Class: All persons who have been arrested since May 12, 2002 and were detained at the Baltimore Booking Center for more than 48 hours without presentment.
3) declare that defendants’ acts alleged above violate the Fourth and Fourteenth Amendments to the Constitution by illegally strip searching plaintiffs as alleged herein;
4) declare that the defendants’ acts alleged above violate the Fourth and Fourteenth Amendments to the Constitution by detaining arrested persons more than 48 hours without presentment;
5) preliminarily and permanently enjoin defendants from pursuing the course of conduct complained of herein;
6) award all plaintiffs compensatory and consequential damages in an amount to be determined and reduce the award to judgment;
7) award plaintiffs attorneys' fees and costs incurred in bringing this action
49

under 42 U.S.C. § 1988 and any other applicable statute; 8) grant such other relief as this Court deems just and proper.
Respectfully submitted, Sean R. Day (Bar No. 12831) 8505 Baltimore Avenue, Suite B College Park, Maryland 20740 301-220-2270 seanday@verizon.net Counsel for Plaintiffs and the Proposed Classes JURY DEMAND Plaintiffs demand a jury trial on all claims triable by a jury. ______________________________________ Sean R. Day Counsel for Plaintiffs and the Proposed Classes
50

 </s> February 27, 2006
VIA E-FILING Hon. Catherine C. Blake U.S. District Court for the District of Maryland 101 West Lombard Street Baltimore, Maryland 21201
Re: Jones v. Murphy, Case No. CCB 05-cv-1287
Dear Judge Blake:
During the hearing on February 16, the Court indicated that it would consider materials from the ongoing state court litigation brought by a class of detainees at Central Booking alleging untimely presentment to a court commissioner. Attached to this letter are several of Judge Glynn's orders in that case: (I) the initial temporary restraining order providing for immediate release of any individual held longer than 24 hours without a showing of good cause by the State (April 25, 2005); (2) an extension of that TRO (May 9, 2005); (3) a further extension of that TRO (November 9,2005); and (4) the opinion and order holding sub curia the City's motion to intervene in the case (September 29,2005).
Thank you again for your consideration of this matter.
Respectfully submitted,
~1'-. ~~. Auerbach
Assistant Solicitor (410) 396-3940 joshua.auerbach@baltimorecity.gov

· 02/24/2005 15:10

410-575-5955

i:I R &". l'

MD OAG CIVIL

PAGE 05/07

RICHARD RODNEY,'et aJ.

*

Petitioners

Ptf l;: 25 .

v.

*

SUSAN MURPHY, WARDEN,

BALTIMORE CENTRAL BOOKING *

AND INTAKE CENTER,

Respondent

""

Csse No. 24-C-05004405

*

* '*

* '" * * '*

* *

tEMPORARY RESIRAINING O@ER

Having considered Petitioners' Motion for Temporary Restraining Order, the

Respondenf s response thereto, and the arguments of counsel; this Court finds that:

1. Members ofthe class ofpetitioners have been heJd in the respondent's custody for

more than 24 hours after arrest without being taken before a judicial officer of the District

Court as required by Maryland Rule 4~212.

2. The failure to comply with Rule 4~212's prompt presentment requirement has-

and if not remedied, will continue to - cause immediate) substantial, and irreparable hann to members of the class of petitioners in that they win continue to be deprived of their liberty

past the 24 hout limit imposed by Maryland law without a showing of probable cause or a

pretrial release determination.

~ Accordingly, it is on April 25, 2005, at

~
p.m. (Time) hereby

ORDERED that Respondent shan present each individual incarcerated in the Baltimore

Central Booking and Intake Center to a judicial officer of the District Court without

unnecessary delay and in no event later than 24 hours after the individual's arrest; and it is

02/24/2005 15:i0 410-575-5955

MD OAG CIVIL

PAGE 05/07

FURTHER ORDERED that anyindividuaJ. held longer than 24 hours withoutbeing taken before a judicial offi.cer of the District Court as required by Rule 4-212 shan be immediately released from.BCBIC on any charges fOTWhicb the individual was denied promptpresentment~ unless Respondent files a motion demonstrating good cause for noncompliance with this Order
before the 24 hour period elapses if reasonably possible and in no event later than 10:00 a.m.. on the next day that this Court is in session; arid it is
FURTHER ORDERED that a party or any otherperson affectedby the Ordermay apply for a modification or dissolution of this Order after two daysl notice to counse1 for Petitioners; and it is
FURTHER ORDERED that this Temporary Restraining Order shall expire on May 6,
2005, at 6:00 p.m.

,r .l' ~I'} . ":..r....
.: ~\
2

.
02/24/2005 15:10

410-575-5955

MD OAG CIVIL

PAGE 02/07

IN THE CIRCUIT COURT FOR BALlTMORE CITY

:RICHARD RODNEY, et al. Petitioners

v.

:;;USAN MURPHY, WARDEN BA.LTIMORE CENTRAL BOOKING AND INTAXE CENTER
Respondent

II

'"

..
111
'*
'*
.* Case No. 14·C-0500440S
'"
'"
..!Ie
* *
"

. ,. EXTE~SION 0EIEMPORARY RESTR.AltsJNG ORQER AND
PgSTPONEMENT QF FURTHER HEARIl':!9,S
Whereas the parties in this matter have entered into an agreemeltt for, continuation (Ift,he Temporary Restraining Order issued by this Honorable Court on April 25, 2005 tnd a continuation of any hearing on the Writ of Mandamus and/or Prohibition, this CO\;!t finds that:
1. Members of the class of petitioners have been held in the respondent's custody for more th!;lIl 24 hours after arrest without being taken before a judicial officer of the District Court as required by Maryland Rule 4-212.
2. The failure to comply with Rule 4-212's prompt presentment requirement has ~ and ifnot permanently remedied~ will continue tQ- cause immediate, substantial, and irreparable harm to memb~ of the class of petitioners in that
they will continue to be deprived of their liberty past the 24 hour limit

1

· 02/24/2005 15:10 410-575-5955

MD OAG CIVIL

PAGE 03/07

imposed by Maryland law -without a showing of probable cause or a pretrial release detezmination; and 3. That an extension of this Temporary Restraining Order is necessary for the Respondent to put into place permanent'solutions to the issues of the prompt charging of arrestees, the prompt booking and identification of mestees~ as well as the prompt presentment of arrestees to a judicial officer for an initial appearance.
Ac(:ordingly~ it is on M~y 9, 2005 at ±.m. (Time) hereby
ORDERED that Respondent shal present each individual incarcerated in Bal':imore Central Booking and Intake Center (BCBIC)toajudiciai officer ofthe District Court without unne~essary delay and in no event later than 24houts after the itldividuaPs urest; and it is
FURTHER ORDERED that any individual held longei than241iours Without tieing taken before ajudicial officer of the District Court as required by Rule 4-212 shall t ,e immediately released :from BeBle on any charges for which the'irtdividualwas dl~nied prompt presentment, unless Respondent files a motion demonstrating good cause fi:)t non-compliance with this Order before the 24 hour period elapses ifreasonably possible and in no event la.ter than 10:00 a.m. on the next day that thjs Court is in session;
FURTHER ORDERED that a party or any other person affected by the Order 1I,ay apply for a modifica.tion or dissolution of this Order after two days' notice to c(mnsel for Petitioners, and at any time prior to the expiration ofthis order; and it is

2

02/24/2005 15:i0 410-575-5955

MD OAG CIVIL

PAGE 04/07

FURTHER ORDERED that this Temporary Restraining Order shall expire November 9, 2005, L . m . (Time); and it is
FURTHER ORDERED that the hearing on Petitioner's Petition for Writ of Mandamus and/or Prohibition is postponed until November 9,2005.

'.

TRUE COpy

JOHN M. GLYNN, JUDGE

Judge's Signature on Original Document only

FRANK M. CONAWAY, CLERK

(:""J
..?~ ';" r;"", .
:~.r;~~
.~:; .".j i.J .- ("f";
.-~ ;~:J.'"2.
::;:"j'~"
'-,. '\"::
~:. ~
_-".0 -.. D

3

IN THE CIRCUIT COURT FOR BALTIMORE CITY

RICHARD RODNEY, et aI.,

*

Petitioners

*

v.

Case No. 24-C-05004405

*

MITCHELL FRANKS, WARDEN,

.BALTIMORE CENTRAL BOOKING *

AND INTAKE CENTER,

Respondent

*

* **** ***** * *

ORDER

Upon the consent of the parties, it is this 9tI! day of November, 2005, hereby
ORDERED:.
(1) that the Temporary Restraining Order (TRO) previously issued in the captioned case is extended until February 9, 2006;
(2) that Respondent BCBIC promptly notify this Court and counsel for Petitioners and amici curiae when it releases someone pursuant to the TRO, files a mO';ion requesting an exception, or detains someone for more than twenty-four hours without presenting him or her to a judicial officer; and
(3) that, for each such person, BCBIC promptlyprovide to counsel for Petitioners and amici curiae a written explanation for the delay and the following documents fi'om ABS, to the extent they are available: Arrest Infmmation, Booking Infommtlon,

Commissioner Infonnation, Offender Delays, Offender Movement, Offender PWI)ess Information, Release Information, Statement of Charges, and Statement of Probable Cause.

',.

J

2

11/09/2005 09:42 410-962-0487
16/11/2665 16:13 411:1-545-7311

BCCJCC
JUDGE: GLYNN

PAGE 02 PAGE 02

RICHARD RODNEY, et aI.
v.
:MITCHELL PRANKS, WARDEN,CBIC

*

*

:l!-

ll<

1lt

IN THE

*

ClRCUIT COURT

'* FOR

* BALTIM:ORE CITY

I\< Case No. 24..C..oS..004405

oi; * * * * *
OPINION

Before discussing the pend,ing Motion to Intervene, it is important to review th;::
unusual history and even more tmusual posture of thjs case.

I. Case Hi&tgrx
This case arises :over the concern at the Office of the Public Defender (OPD) lba~
a large number of their client.., were being held at the Central Booking and Intake Ce:tJte:~ (CBIC) wjtbout seeing a Court. Commissioner within twenty~four hours of their arrest (aii required under Md. Rule 4..212), To address this concern, the OPD filed a PetitiQ'fI,fo;Habeas Corpus OD behalf of each client whom they believed was being wt'Qngfl3.1l~t detained. Invariably. the vast ma:rority of Petitioners had seen a Commissioner or b~.clit reJea~ed from custody before a hearing on their petition could be held-leaving tbl: matter moot, and making resolution of the 'larger question of the legality of CBJ:C'I; practices unlitigated. Hence on the 25th day of April 2005, this Court issued an o::de'~ granting Class Certification to "all indigent persons arre.~ted and detained at thl~ Baltimore Central Booking and Intake Center,- at'1d waitins too .!lee a judicial of:fice,~ pursuant to Md. Rule 4':'Z12., piesentlyand in the future." Orde.r, April 25,2005 (Doc.
No. 4001).
Such an order bad been requested by the OPD on behalf of 53 named PetitiollerlJ
through a single pleading simply entitled: "Peti'M71. for Writ ofMandamus, ProhibitiOi'l. 0,"
othtrr AP'Pi"opri.at'(t Relief; Motion ~o Shorten Time to Respond.; Motion for Tempora1"..1 Restnu.i.ing Order; Mono-rojor Cla~s CertiftcCl.'lf.Oft; and Motion for Immediate Hearing."

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JUDGE GLVNN

PAGE 03
PAGE 8:3

Purs\Jant to that sam,a pleading, and on tbe same date, this Court issued a Tempo7'tJ'f";l'

.

.

"

.,'.

.' '. '

Restraining Orde~ requiring that the, Defendant either present any persons, in custody 81:

CBre to a Commissioner within 24 bours after the.ir arrest (puTsuant to Rules 4-212), 0'1'

rel$$s from custody any per:sons that have not been presented in a timely fashi.on Currently, the Tanporary Restrain.i:ng Order is set to expire on the 9th of November 2(05

the same date on which a hearing on tbe pending Petition for Writ (')f Ma.114(1J'f1.u,r tL

tlcheduJed.

TI. The Citv's Motio;z,.Jp..,.lntervei~e The Mayor and City Council of Baltimore now come before the Court t(J
inteiveue in the above action as a Pla.intiffpursuant to Rules 2~214(a) and (b).
When moving ,for 'intervention, e,.,q of r,ight. a,patty mu.."!t show; (1) the app1iead~'l for intervention is timery; (2) the appHc+\nt 'ha.~an interest in the sUbject matter of chlH action; (3) the'dl$pO$j,tion of the action: wou1d at lee.,Clt potentially impair the a.pptioa:nt,f. ability to protect it') interest; and (4) the applicant's interest must be inadequately represented by existing parties. Md. Rule 2-214(a). Alternatively, a party may move :rol' JX:rmis!!ive inWrve:otion where an' appljc,antj l3 claim Qf defen~ h~ ~ 'J.\.1estiQn of law or fact in common With the action. Md. Rule 2-214(b)(l). Gove:mme1)t in.tervention i:; pennissive when the validity of a statute or regulation is drawn in question, or where f;
party to the action relies for a ground of claim or defense on such law. Md. RulE: ·Z·, 214(b)(2). In exercising its discretion whether to grant permissive interventIon, thb Court must cons;der whethe". the intel'Vention "will unduly delay or prejudice tbf.l ac\iudioarioT\ of ~he rights of the original parues.'" Md, Rule i~214(b)(3).
The City asserts' that the' systemic faHures at. CBIe 1,.tndedying this case pO£K: :il substantial ,ri.sk to the health, safety, and welfare of the dti~l!m$ of ,Saltimore, as well a.!, ,directly impacting the work of the Police Departmet'lt. It further argues that as a result 1': has an .interest in such failures, and that its ability to protect ,its interests is oompromi$e(!.
by being excluded from this case; As the City's Motion to lnterve.ne was timely filed (chi!'
Pet'itionfor Writ olMandamus has yet to be ruled 011, or even heard). this COt1rt nlUS-:
decide the Motion on t~etssue of the City's interest in toe underlying the ca..'le.

LLf~~fL~~~ .1~/l1!2005

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BCCJCC JLlDG£ Gl~

nI. ;Discussion and Analysis
Due to both the uniqueness of CBIC as an institution, as well as the conflllencf~ of civil and criminal issues, the case sub jud.ice is cssontiaJ1y one of first impression 1r. Maryland.
The decision on intervention is affected by one question. ~imple and direct: ~'ba:; is this case about? Only when this question is answered can the Court properly rule on thf.;
an City's Motion to Interoene. The OPD represents of the Petitioners; individuals, w'h(.
by class definition, ate all charged with a crime. The interests of these individuals are tbf.:

before a" commissloner as requ.lred bYlaw. Toe Respondent b,qs more cample;,_

re!!lponsibjJjties, but h3.5 generally complied with the Court's TempQ'f"tlry Re,'/trQ.;r,int:'

Order by releasjng certainl defendants, while working outside the purview of the Court to

resolve its broader problems. Never the less, the parties. have involved the Courr. perhap1i

erne, inevitably.. in the'JlWlagement Qf the

since it is the problems at that institution and

which caused this case to be fjJed. While the clai.ms made by the Petitioners couIC. hl;-

resolved by a plan which assures the' limited relief requested by the Petitioners, thE~ }aW'f~lIl efficient, and humane management of the CErC presents much broader legal £InC:

public policy concerns. This Court shares these concerns, but has questioned on tile!

record in this ca.l)e, whether broader issues concerning management of the Ole aJ:f:

- amenable to judiCial action, or has even been presented to this Court by the pleadingi) o{

the parties now before the Court.:' ,

The request by the ,City to enter this case emphasizes the need to answer prompt1:!'

and correctly questions about the scope of the case, The City raises questions about IloVI'

performance of the CBIC and Orders of this Court might affect the health safety and weL

being of its citizens. These questions are legitimate alid important. No city worthy Qf tl14;;

name can prosper without both protectIng its citizens and respecting their rights. .Any
on city, which faUs either count, is doomed. However, these concerns ar,e muCll br~Ldel'
. then those raised by the Petitioners. Indeed, the City rruses ~erlous questionlS of mWielr:

and C(')ncern to aU pa.rties and persons ,interested in the criminal justice system, most O:l

whom

are

not

p"_'....,..~........~..

to

.. I.is
1.11 •

ca.<.;e •

Even

were

this

Court

to

give

a

narrow

construction

t(,

tbese concernS1 anumber of trQubling issue::; would require consideration before an:,

.,~:

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JUDGE GLVNN

PAGE 05 PAGE 05

mea.ningful resolution eQuid be achieved. This Court has no doubt that all the partie:i
r:r,T"!,....~';""~r; ,~, ',,,, ~., ' ... - - ~" - =~ •
These concerns gO beyond what; On its face, this case seems to be about· presentment of an arrestee to a court commissjoner within 24 hours of 8.rrest. Some: of these are the same systemic problems that caused the Defenda.nt's failure to comply wit1:: the law in the fIrSt Instan~. The recently filed 4~P!an for the Central Bookin~ and IlJtakl: Facility" C'the Plan';) touches on a.U aspects of management, since only a holi&tj( approach 1~ likely 'to prodt1ee an effutive, lasting solution. A rcvic;:w of the Pla.n call11
attention to a number of hil;ues needing improvement. These wou1d include: 0:
improving the cfficioncy of the system in identifying and charging thQse delivered tc itf! care and custody by the police; (2) creating a shared and efficient statewide crimi.nal information system to eliminate errQn; 'and asstlte that the correct people are charged
correctl.v and th.e remainder are freed; (3) improving the efficiency and accuracy of
statewide warrant checks and the prompt service of warrants; (4) developing an effectivr.
mechanism. for prompt and tmpartiaJ handling of a.ny State requests for relief from the 2·4 hour pl;'eSe'CItment requ;rement; 1 and (5) im~ioVin~ the credibility of the criminal jus':i,c~ system, in part thro1.tgh eliminating the eonsequences imposed by the arrest pOlicies of the poJjc;e and the declina.tion for. prosecution of a large percent of all cases and pers:)n5 charged. This Court has no doubt' that there are numerous other important issues tha'i
could be raised, all of which are only limited by the imagination and motivation of the
parties and their counseL
Many of these issues are complicated by the fact that the CIHe is run by the State,
while the City controls the'daY-Io-day management of the poHce. When CBIC was tai:een
over by the State and re~opened in 1995 under the management of the Division of Pretrial Dotention and Services C'DPDS"), the City beoame the only political subdivision in to(: SUIte not to oversee its own local cOrrectional facility. Thus, the City Police deliver thE! accused to a state/:'Un fl:'lcility, These political c1.ltitie.s may well not share the same goals" or see the need to <,lccount for the irn.;pact of their policy decisions on eacb other. Th~:
1 Thi~ iii thCl i!!s'l,TQ rais«i by the PethiOneT in the mlS<il sub judicl'l. The Court suggCRted that the court
~ommi!lSioT.ltlH whQ work in Ole and are l!\1l~.sed)y ~he in<k:pc1'ldclltjudiclal offic~s who alreadv dec.idl~
issues afhaH and release might be l.IIliql.lefy ll'Uited to handlioi fui.: responsibility. They have decl{ned this
duty.
4

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JUDGE GLYNN

PAGE 06
PAGE: 06

City 1S in effect free to re~Qnd to the demand of the citizenry to arrest in great numberJ
jt".:s least productive, most annoying citizens, and ignore whether those arrests lead tc overcrowding. dela.ys in booking at CBIC, or damage the crcdibi1il:y of the justice sysl:en:. as a whole.
Nonetheless, as important and disturbing as these and other issues may be. the Court has serious qualms about the legality or appropriateness of judicial action in cer::ail~.
of these ~. It is easy for this Court to order ·the State of MaryJand to obey the Rllle:: promulgated by the highest Court of this St.ate" This it has done. However, this Court:
cannot intelligently move forward with this case until it is confident .?f the extent of itr: powers and the existence of sound and lawful reasons to exercise them. The Court nClte<:.
thh: eonc:ern when it a-sked the parti~ at an ea.rHer hearing, to assume that the CBIC WaJi simply incapable (If Jawfuily proce.~si:ng· tho-se SQuis deliver'ed through its portals. In s'uc!: a dismal case, the Court inquired what exactly sho'l.iId it. aTld could jt do.; o.r was the· con~qL1ence of bureaucr.at.ic: blundering limO ineptitude in the hands of the CltizenS wbr. might. if they wished, punish incompetence at the pons, While the City has touched or this issue the Parties thus far have not eJaborated upon it. This all depend.t; on an$We~ tc the question previously noted: What i~ this ca'3e about? Is it merely the deJay it: presenting the accused toa Commis~ioher? Or is it about the difficulty various pul:llk agencies have in effectively operating and cooperating with each other?

A..

- - ~--'".

-~" - - " - - - . ~- ~-

~ij.i.;,j'-.,;.i.U.;\lii.;l:<'

It is of the opinjoo or .this Court mat tne L..u:y oe named as an amicus curia"'i

specitically for the pUT.pose of assisting the COUlt in resolving the questions raised

herein,2 The Court shaH reserve ruling further on the City's Motion. to Intervene and

other jssues mentioned in this opinion until the parties and City submit to this Court thein

position as to the questions raised herein.

By entering the Cir.y as an amicus curiae jt will bo a.bl~ to present its ooncems lan(1
recommendations for the' COll\t'S consideration. The Third Circuit ha.~ ru:led that "frie:nds
of the coUrt...may be 'advisable where third parties can contribute to the court's

~ lS.g., what is the chief issue in this ca.~, wh..t can this Court do, what is the City's interest in such an II'ISlJe, do,~ s~,ch an inteTI!l.'it involve th~ city Or oth~r potential partil1:s, in what role (as plaintiff/petition€TiI, or all defendants?). etc.

....
~,

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JUDGE: GLVNN

PAGE 07 PAGE e17

und.exStanding of the consequences of tbe ~~ent proposed by the parties." Harris 11 P.rrr~itey, 820 F.2d at 603 (3d. CU. !9S'7).
pervious mli.t'l& ex.emplified by the possibility of the release of individuals the POliOH
Department may be req'll:ired to fe-arrest, has had an affeet on the City. As thi5 (::lJilil progresses the Court can foresee addi:tion<!l cwsequences that may affect the City Il!. partners of t~ eriminal justice system. Additionally. as noted earlier in this opinion till;; Court applauds the recommendations made by the City, and therefore it should 'be givem Ii) voice in this case.

/

Ott..- J·...g:rl..-l'l&I"I .r~.~n,-..~-~·:rl""".A~.....~.,.
B~ W·CiRuit cmut

$MIl Si~ an

~ *~

11/09/2005 09:42

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BCCJCC JUDGE: GLVNN

PAGE 08
PAGE 08

RICHARD RODNEY, et at.

* IN 1'Hf!,

v.

* CIRCUIT COURT

MlTCBBIL FRANKS,
W,ARDEN, CBIC '

IJt

FOR

* BALTIMORE C1TY

" Case No. 24--CM05-00440S * *' * '" * *...... ;;. * * *
.Q!mER,

UPON CONSIDERATION ofthe ca.se file"and'ple.adings·in the above _oDe-Ail"

matter~ following a hearl.ng in open court. and for the ~ons stated in the. precedioAi;

Opiniq17., rr IS H.BR.'BBY ORDBRED that the City's Motion to l'1'1terw~ne be held SUB

CURIA pending the filing of suppletneilltw"y .plead.ings by it:5elf and the named partie!3 jn

the above oapttoned matter, and

IT IS FURTHER ORDERED that pending such pleadings and a ruling OIl tbeJ

Motion! the City be permitted 1:0 participate in the abov/# captioned matter as an amlcw.J

curiae.

_ C~

k/.. THUS DONE A...1'tID SIGNED, this

day of September 2005, Baltimore Ci1~11

Maryland.

.. ~-----~--------~--~'---.~-
f

, ,.
~.

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•

7

 </s> UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

ERIC JONES, et al.

Plaintiffs v.

Civil Action No. CCB 05 CV 1287

SUSAN MURPHY, et al.

Defendants

PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT

Eric Jones et al., Plaintiffs, by and through undersigned counsel, file this motion pursuant to Fed. R. Civ. P. 56 (“A party claiming relief may move . . . for summary judgment on all or part of the claim.”)

ISSUE

Whether the gender-differentiated search policies for male and female arrestees at Baltimore Central Booking and Intake Center, as set forth in post orders prior to January 1, 2006, under which men, but not women, were to be searched to their last layer of clothing, violated the Equal Protection Clause. 1

1 The parties disagree as to the actual strip search practices. Plaintiffs’ claim as to the searches to the underwear (Count 11 of the Fourth Amended Complaint) is plead and argued in the alternative to the Counts dealing with bare skin searches. The Defendants’ position is that the post orders reflect the actual practice, and that CBIC staff searched males (but not females) only down to their underwear.
1

INTRODUCTION
Defendants’ alleged policy of subjecting male but not female arrestees to
underwear searches violates the Equal Protection Clause because the
classification is based on gender stereotypes and assertions not supported by
objective experience and data. The Defendant Wardens and State offer no
objective data in support of their basic premise that males are substantially
more likely than females to try to introduce contraband into the Baltimore
Central Booking and Intake Center (CBIC), such that a more invasive search of
male arrestees is justified. This policy is challenged in Count 11 of the Fourth
Amended Complaint.
This motion seeks judgment on the constitutionality of the policy claimed by the Wardens. However, Plaintiffs contend that, through much of the class period, CBIC staff subjected arrestees to strip searches down to their bare skin, either by a fullnaked search or a search by which pants (or skirts) and underwear were pulled to the knees. The underwear searches may be viewed as a “lesser included offense” of skin strip searches, because a person has to be searched down to his underwear before he can be searched down to his skin, and thus represents an area of factual agreement for the parties (i.e., that all men were at least searched to their underwear). But the Plaintiffs’ position is that the blanket searches did not stop at the underwear for men (or at patdowns for women). By seeking summary judgment on the issue of whether the Defendants’ alleged search policy was unconstitutional, the Plaintiffs are not abandoning their claim that the Wardens subjected arrestees to searches down to their skin during the class period. Plaintiffs reserve for another motion the issue of whether CBIC officers (with the acquiescence of the Wardens) were subjecting males and/or females to searches down to the skin, and whether this more invasive search was the actual policy and practice.
2

STATEMENT OF FACTS

Male and female incoming arrestees for the City of Baltimore go to the CBIC and get processed through various posts prior to presentment: Sallyport → Medical Triage → Search Room → Booking → Identification → Telephone Call → Holding → Commissioner (if charged).2 The CBIC, on other floors, also houses persons committed pending trial. Approximately 80% of arrestees entering the CBIC are male. Exhibit 101, Deposition of Benjamin Brown III, p. 273 (hereinafter “Brown”).3

The CBIC Post Orders for searching arrestees in the search room, prior to January 1, 2006, read:

Post Order, Female Search Officer, Eff. Date 11/16/98 (Rev. 8/20/04), Exhibit 102. Upon arrival, all offenders [sic] will be pat frisk searched.

Post Order, Men’s Search Officer, Eff. 11/16/98, Rev. 8/20/04), Exhibit 103. Upon arrival, all offenders [sic] will be searched down to the underwear.4 If the search room officer suspects contraband is being concealed beneath the underwear, then a strip search will be conducted.

The disparate search policies are also described by Assistant Commissioner

Brown in his deposition testimony. Brown 209-210. Effective January 1,

2 The State runs CBIC pursuant to a statutory state takeover of the City’s pretrial detention facilities. Ann Code of Md., Corr. Servs. § 5-101 et seq.
3 Exhibit numbers continue from those previously filed in this case.
4 The post orders also require a pat frisk search of male arrestees. Exhibit 105, Post Order, Men’s Sallyport, Eff. 12/1/97, Rev. 8/20/04. Therefore, the search of male arrestees to the underwear is not in lieu of a pat frisk, but in addition to it.

3

2006, the search policies for male and female arrestees at CBIC are the same (both to be searched to their underwear). Exhibits 106 and 107.
If weapons or sharp objects are found on an arrestee in the Sallyport or Search Room, the item is discarded without entry in a log. Exhibit 108 (excerpt), Deposition of Vernon Irvine, pp. 101-102, 106; Exhibit 109 (excerpt), Deposition of Delphries Watties, pp. 33-35; Exhibit 110 (excerpt), Deposition of Maurice Diggs, pp. 24, 27-28; Exhibit 111 (excerpt), Deposition of Kevin Estep Jr., pp. 19-20; Exhibit 112 (excerpt), Deposition of Lisa Taylor, pp. 3839.
Meanwhile, illegal drugs found on arrestees are turned over to a police liaison without entry in a log. Exhibit 108 pp. 100-102; Exhibit 109 p. 35; Exhibit 110, pp. 28-29; Exhibit 111 pp. 21-22, 39-40 (stating that illegal drugs get recorded in contraband log only if found on the ground and not attributable to an arrestee); Exhibit 113 (excerpt), Deposition of Katherine Blackmon, pp. 35-39, 114-115; Exhibit 114 (excerpt), Deposition of Beverly Stevenson, p. 51; Exhibit 112 p. 39; Exhibit 115 (excerpt), Deposition of Denise Banks, pp. 5255, 57-58; Brown pp. 60-61 (no log made if drugs found on arrestee).
On October 25, 2007, and continued on November 14, 2007, the Plaintiff took a Limited 30(b)(6) deposition of the State of Maryland. As set forth in the Notice of Deposition, “[b]y agreement of the parties and deponent, the subject matter of this deposition will include the policies and practices for searching arrestees, and facts, findings, and conclusions allegedly justifying such policies and practices, at the Baltimore Central Booking and Intake Center.” The State
4

designated Benjamin Brown III, Assistant Commissioner (and Acting Deputy Commissioner) for the Maryland Division of Pretrial Detention and Services.5
Mr. Brown had previously stated in an Affidavit that “It was the experience of the Division that male arrestees entering BCBIC were far more likely than female arrestee to have in their possession weapons, such as knives and, on occasions, guns, which, in turn, pose a severe threat to the safety and security of the persons on the booking floor. The Division, therefore, implemented and maintained the gender-differentiated initial search policy. . ..” Exhibit 116, Affidavit of Benjamin Brown.
Mr. Brown testified at the deposition that a contraband log shows what types of contraband have been recovered in the entire facility (i.e., not limited to the booking floor). Brown 106-108.6 No effort has ever been made to analyze (1) what is found, (2) where it is found, or (3) what search procedure, if any, revealed the contraband. Brown 109-112. In addition, no effort has been made to compare the rates by which contraband is recovered from females (or female areas) versus males. Brown 111-112. In fact, no effort has been made to collect or analyze data from any source to compare the rates at which male versus female arrestees entering the facility possess contraband:
Q: Well, has anybody ever gone through any kind of log or writing or reports or anything at Central Booking to compare the
5 The Division runs CBIC. 6 This would not include contraband recovered on arrestees in the Sallyports or Search Rooms upon entry into CBIC.
5

relative frequency with which contraband is recovered from males as opposed to females?
Mr. Brown: Not that I know of.
Q: Do you know why?
A: No.
Q: Would it be useful in administering the facility to know on an objective basis whether males or females are bringing in more contraband
MR. POTHIER: Objection.
A: Like any data that’s available to management, it can be useful. I’m not sure that whether – I’m not sure why.
Brown 112-113.
Additional questioning specifically focused on weapons revealed a similar
lack of investigation or study:
Q: [Has} anybody ever made an analysis of weapons recovered from people in Central Booking to determine whether more weapons are recovered from males or females or vice versa?
A: Not that I know of.
Q: So there’s no type of study or investigation based on objective data that’s been conducted to see whether males introduced more weapons into Central Booking than females?
A: Not that I’m aware of.
Q: How about cases where people have attempted to introduce weapons into Central Booking and the weapons were detected at some point, has anybody ever done any type of investigation or analysis to determine whether males attempt to introduce more weapons into Central Booking than females?
A: Not that I’m aware of.
Brown 113-114; see also, Brown 119-121.
6

Mr. Brown has no opinion as to whether men or women are more likely
to attempt to introduce contraband other than weapons into CBIC. Brown
207-208.
As to his affidavit, Mr. Brown stated that his statement that “male
arrestees entering BCBIC were far more likely than female arrestee to have in
their possession weapons, such as knives and, on occasions, guns” would
mean something along the lines of 5 women out of 100 would have a weapon or
item that can be used as a weapon, versus 30 men out of 100. Brown 221-
222.7 However, Mr. Brown has no idea whether those estimates are correct:
Q: Do you have any estimate of the percentage of male arrestees who come into Central Booking with weapons or things that can be used as weapons in their possession?
A: No, I don’t have an estimate, I’m not aware of an estimate being made.
Q: Do you have an estimate of the percentage of female arrestees coming into Central Booking having in their possession either weapons or other items that can be used as weapons?
A: No.
Q: When you wrote that male arrestees are far more likely than female arrestees, what do you consider to be far more likely, that phrase you used?
A: Oh, probably define far more likely in – one in a hundred for women, ten, twelve, fifteen in a hundred for men.
Q: But you don’t know, do you, whether or not those are what the actual numbers are?
7 Though the plural “guns” was used in the affidavit, only one man is known to have possessed a gun upon entering CBIC. Brown 223. Mr. Brown does not know where or how it was recovered, e.g., whether it was recovered by way of an underwear search. Id. 226.
7

A: No. Brown 262-263.
Mr. Brown justifies the statement in his affidavit based on subjective, vague, and unquantified conversations he had with several persons. On one occasion “a long time ago,” Kenneth Bartee, the security chief for the Baltimore City Detention Center (not CBIC), allegedly stated that he believed males were more likely than females to try to introduce weapons at the Detention Center, and Mr. Brown also testified that “I believe Chief Merritt has indicated that that’s what he believes.” Brown 195-201. Later, Mr. Brown identified comments from several persons: Security Chief Childs, Warden William Jednorski, Assistant Warden France, Warden Susan Murphy, Major Whitley, Major Becketts, Major Shields, and a “couple of representatives from the Baltimore City Police. Brown 270.
As to each, Mr. Brown testified as follows. Security Chief Childs
Brown: I remember Chief Childs commenting more about the likelihood of the police missing weapons, but by inference that he was talking about males, Q: By inference how? A: We were talking about the male sallyport at the time. Q: So the discussion didn’t relate to males versus females, did it? A: No. Brown 271.
8

Warden Jednorski Brown: Again, a similar comment about the experience with the police missing things, that his was – I do remember some comment about being concerned about men bringing weapons in, not, not women. Q: Do you know why he stated that concern? A: I – my assumption is based on his experience as a corrections professional for twenty-five or thirty-five years. Q: So from what you could tell, he wasn’t concerned about women bringing weapons into the facility? A: Not – not as concerned as he was about men. Q: Did he say why? A: I don’t recall him ever saying why. Brown 271-272
Assistant Warden France Brown: The only conversation I can recall with Mr. France was concerning the use of metal detector equipment. Q: What discussion did you have? A: As to whether it was worth us considering trying to find funding to put a similar metal detector in the women’s sallyport as we have in – had in the men’s at the time. Q: What did you decide? A: Not to. Q: Why not? A: It – basically they couldn’t justify it, that’s his statement, that he couldn’t justify the expense. Q: Do you know why not? Did he say why not? A: I don’t recall whether he actually said why not or not.
9

Brown 272-273. Warden Murphy
Q: What discussion did you have with Warden Murphy regarding weapons entering the facility through incoming arrestees? A: Just general discussion of the need for the staff to make sure that the police didn’t miss something. Q: Did that discussion relate to men versus women? A: As best as I can recall, it was generally addressed to the men’s sallyport. Q: Why do you believe that? A: Because that’s where we, we were at the time when we were talking about it. Brown 273-274. Majors Q: Do you recall any of specific discussions you had with any of the majors that you mentioned, being Majors Whitley, Beckett, and Shields? A: No, I can’t recall any, the specifics of any discussions. Brown 274. Baltimore City Police Q: You also mentioned discussions with Baltimore City Police. Do you recall any specific – A: No, I don’t. . .. Brown 274. Mr. Brown testified that the following are some items that could be used as weapons: pieces of metal, pieces of plastic, fragments of glass, knitting needles, keys, key rings, rings, bracelets, boots, earrings, scarves, shoestrings.
10

Brown 299-300. Mr. Brown conceded that women are just as likely as men to have these items. Brown 299-300.
Mr. Brown further testified as to the relationship between the charge a person is arrested for, and the likelihood that the person possesses a weapon. Brown 224-226.8 Mr. Brown alleged that men are more likely than women to enter CBIC for violent crimes. Brown 287. He testified that he does not know if the crime charged, rather than gender, is the relevant variable and therefore could account for any perceived differences in men versus women having weapons in their possession. Brown 288. He has absolutely no information or opinion as to whether similarly-situated males and females have any difference in the likelihood of having weapons in their possession. Brown 288-289. In fact, Mr. Brown considers the arrest charge a potentially more relevant factor than gender. Brown 289-290 (stating that it would be more important to search a women arrested for attempted murder and possession of cocaine than a man arrested for driving on a suspended license).
ARGUMENT
I. Gender Discrimination Is Subject to Heightened Scrutiny
Governmental gender discrimination violates the Equal Protection clause unless the government shows an “exceedingly persuasive justification” for the disparate treatment. United States v. Virginia, 518 U.S. 515, 531 (U.S. 1996) 8 The arrest charge is listed on the toe tag of each arrestee who enters CBIC. Brown 291-292.
11

(involving the Virginia Military Institute, at times hereafter referred to as the “VMI case”). To meet its burden of establishing an “exceedingly persuasive justification,” the government must show “at least that [i] the classification serves important governmental objectives and that [ii] the discriminatory means employed are substantially related to the achievement of those objectives.” Id. at 524.
The Court stated it is not an easy burden: The burden of justification is demanding and it rests entirely on the State. The State must show ‘at least that the [challenged] classification serves “'important governmental objectives and that the discriminatory means employed” are “substantially related to the achievement of those objectives.’” The justification must be genuine, not hypothesized or invented post hoc in response to litigation. And it must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females. (citations omitted) Id. at 533 (emphasis added). All gender-based classifications today warrant “heightened scrutiny.” Id. at 555. The mere recitation of an alleged “benign purpose” does not block inquiry into the “actual purposes” of government-maintained gender-based classifications. Id. at 536. The reviewing court must make a “searching analysis” of the government’s “alleged objective” for establishing the gender based classification. The VMI Court did not define the term “searching analysis,” but, as part of its analysis of gender stereotypes, the Court relied on objective “field studies” based on quantifiable data to evaluate Virginia’s “alleged objective” for establishing the gender based classification at VMI. The Court notes that field studies in other cases did not confirm gender-based,
12

stereotyped fears that allowing women to engage in medical and policing professions and studies of performance of women in the nation’s service academies and the military would lead to reduced standards. Id. at 544.
II. Defendants’ Policy of Subjecting Males But Not Females to Underwear Searches Violates the Equal Protection Clause Because the Classification Is Based On Gender Stereotypes and Not Experience and Data
A. Courts Require Studies Based On Objective Data and Not Just Conclusory Affidavits to Justify Gender Based Classifications Lower courts both before and after VMI have required government actors to justify gender based classifications by studies based on objective data. For example, in Mary Beth G. v. Chicago, 723 F.2d 1263, 1273-1274 (7th Cir. 1983), the City of Chicago (the “City”) maintained a policy of subjecting females (but not males) arrested on minor charges to strip searches. The City introduced several affidavits of security personnel and one statistical survey in an attempt to show that weapons and contraband can be and have been concealed in the vagina and thus the decision to search males and females differently was based on the documented ability of female arrestees to secrete weapons and contraband in the vaginal cavity and the inability to discover such items by a thorough hand search. Mary Beth G. v. Chicago, 723 F.2d at 1274. But, the Court held that since the evidence also showed that males had body cavities in which contraband could be secreted, the government failed to show why its objective of ensuring the security of the City lockups required it to search the vaginal cavity but not the body cavities of males, which can be and occasionally are used to conceal weapons or contraband. Id. The Court
13

held that the City could not show a “substantial relation between the disparity and an important state purpose” because the City has “offered no comparative data to suggest that women arrested for minor offenses conceal items in their vaginas to such a degree as to justify strip searching only women and not men arrested for similar offenses.” Id. (emphasis added).9
In Deblasio v. Johnson, 128 F. Supp. 2d 315, 328 (D. Va. 2000), a post VMI case, the Court relied on “experience and data” to uphold a gender based classification on grooming rules. In Deblasio, the Court upheld a grooming rule requiring males to wear their hair shorter than females because of alleged security concerns. The State based the gender-based hair grooming rules on a study of Serious Incident Reports since 1989 which showed that a male was approximately four times more likely than a female to be cited in the Serious Incident Reports in an incident involving violence. Deblasio v. Johnson, 128 F. Supp. 2d 315, 327 n.6 (D. Va. 2000). But in this case, unlike the government in Deblasio, the Defendants offer no objective data in support of the claim that males are more likely to introduce contraband into CBIC. (Also, the Defendants have not established that the underwear search is substantially-
9 Corrections officials have at times tried, unsuccessfully, to justify more invasive searches of women than men, on the theory that women are more likely to secrete contraband. Mary Beth G. v. City of Chicago, 723 F.2d 1263 (7th Cir. 1983); Mack v. Suffolk County, 154 F. Supp. 2d 131, 134 (D. Mass. 2001); Gary v. Sheahan 1998 U.S. Dist. LEXIS 13378 (E.D. Ill. 1998); Johnson v. District of Columbia, 461 F.Supp.2d 48 (D.D.C. 2007) (denying qualified immunity defense on claim that women, but not men, were subjected to prepresentment strip searches).
14

related to achieve its objective of ensuring the security of CBIC, or that the justification was made at the time of the classification.)
In the context of searches of arrestees, this Court has held in this case, in denying the Wardens’ claims for qualified immunity, that the right to be free from a gender-differentiated search (whether a full strip search or to the underwear) was clearly established well before the time period in this case. Jones v. Murphy, 470 F. Supp. 2d 537, 548 (D. Md. 2007).
B. The Defendants Lack Any Objective Data or Analysis to Support the Gender-Differentiated Search Policy In this case, the Defendants have no comparative data to show that the incidence of items found via underwear searches of males was so much greater than items that could have been found if women were subjected to a similar search. Therefore, the Wardens have not met their burden of demonstrating that the difference in gender alone justified the disparate search treatment accorded males and females. Mary Beth G. v. Chicago, 723 F.2d 1263, 1274 (7th Cir. 1983).
The State, through its 30(b)(6) deposition, conceded that it has never done an analysis of data, or even attempted to collect data, to learn whether men are more likely to possess weapons, or whether similarly-situated male arrestees (i.e., when controlling the variable of the arrest charge) are even the slightest bit more likely than female arrestees to possess weapons. In fact, it appears that the State has avoided collecting and keeping any such data by
15

declining to make log book or computer entries of contraband found. The State further conceded that, regarding items that may not be designed as weapons but could be used as such, it had no reason to believe that men were more likely to possess such items.
Additionally, there is absolutely no evidence to suggest that, prior to implementation of the policy, there was any marked difference in the rates of possession of weapons, or items that can be used as weapons, between the two genders. If one gender has been searched but the other has not, it may result in more items being found on the searched gender than the unsearched gender. But this may well result not because one gender is more likely to possess weapons or things that can be used as weapons, but because only one gender was searched (not that any objective data has been presented on the question of whether, even with the searching of men and non-searching of women, more weapons and things that can be used as weapons have been found on men).
Without data collected or analyses conducted prior to the implementation of the policy, and without any evidence as to the time of implementation of the policy, 10 the State cannot show that the stated justification was not a post hoc creation to justify the existing policy, or that it
10 The Defendants have been unable to produce any versions of search room post orders that existed prior to the post orders revised August 20, 2004.
16

was based on anything other than rumor, prejudice, or inconsistent and unreliable anecdotal reporting.
III. The Disparate Search Policy is Not Substantially-Related to Any Important Government Objective
Because there is no objective data to support the State’s claim that the disparate-search policy was warranted, the policy fails to survive the heightened scrutiny.
Furthermore, even if the State’s claimed anecdotal perception that male arrestees are substantially more likely to possess weapons had been supported by data, the policy still must have been substantially-related to the important government interest (here, a safe booking facility). It was not so related.
First, when looking at not just weapons but also objects that can be used as weapons, the State conceded that it had no information to believe that men were more likely to possess such potentially dangerous items.
Second, the State has not claimed that no female arrestees have possessed weapons, so the State would have to explain why it does not have an important government interest in finding weapons possessed by female arrestees, or if it does have such an interest, why it believed a lesser search worked for women but not men. If the lesser search for women protected the government’s important interest, then a greater search for men would not be substantially-related to the government interest.
17

Third, the State is unable to quantify any perceived difference between the rates that male and female arrestees possess weapons. Vaguely claiming that men are “more” or even “substantially more” likely to possess weapons, without quantification, and based solely on self-serving and vague anecdotal statements, leaves one unable to sustain the State’s claim that the policy was substantially-related to the government interest. It must be remembered that the State bears the burden.
Fourth, the State has conceded that it had no reason to believe that similarly-situated males were more likely to possess weapons than women. When looked at on a charge-neutral basis, the State had no reason to believe that men possessed weapons at a greater rate than women, such that searching a man arrested for driving on a suspended license, but not a woman arrested for attempted murder and cocaine possession, would make any sense at all. Brown 289-290.
The State has not shown that the gender-differentiated search policy set forth in the post orders prior to January 1, 2006, were substantially-related to an important government interest.
CONCLUSION
The Defendants have no objective data to support the claimed perception that male arrestees at CBIC are substantially more likely than female arrestees to possess weapons, or that male arrestees are any more likely than female
18

arrestees to possess objects that can be used as weapons. The Defendants rely
solely on subjective, unquantified, anecdotal statements made after the policy
was created.
The State has also failed to demonstrate that, if substantially more men
than women had possessed weapons, that the disparate search policy of
searching men but not women to their underwear was substantially-related to
an important government interest.
Therefore, the Court should rule that the gender-differentiated search
policy that existed prior to January 1, 2006, violated the Equal Protection
clause.
Respectfully submitted,
____________/s/________________ Sean R. Day (Bar No. 12831) 8505 Baltimore Avenue • Suite B College Park, Maryland 20740 301.220.2270
____________/s/_________________ William Claiborne (pro hac vice) 717 D Street, NW • Suite 210 Washington, D.C. 20004 202.824.0700
____________/s/_________________ Barrett S. Litt (pro hac vice) LITT, ESTUAR, HARRISON & KITSON, LLP 1055 Wilshire Blvd. • Suite 1880 Los Angeles, CA 90017 213.386.3114
Attorneys for Jones Plaintiffs and Proposed Classes
19

 </s> UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

ERIC JONES, et al.

Plaintiffs v.

Civil Action No. CCB 05 CV 1287

SUSAN MURPHY, et al.

Defendants

PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION (With Request for Hearing)
Plaintiffs, by and through undersigned counsel, respectfully move this Honorable Court pursuant to Federal R. of Civ. P. 23(a) and 23(b) to enter an order certifying the classes defined in this motion, approving the named class representatives, appointing Sean Day, William Claiborne, and Barrett Litt as class counsel, and granting other relief requested herein. Plaintiffs request a hearing on this motion.
Defendants do not consent to the relief sought in this motion. LCvR 7.
A memorandum in support hereof accompanies this motion.
Plaintiffs seek certification under 23(b)(3) (Damages Class) on the issues of liability and damages, or for a “Hybrid” Rule 23(b)(2) and (b)(3) Injunctive Relief and Damages Class. The Named Plaintiffs and Class Definitions are set forth below.

1

OVERDETENTION CLASS Class Representatives Kevin Adams, Tonia Bowie, David Colyns, Anthony Haig, Gary Saunders, and Michael Washington. Class Definition Each person who, since May 12, 2002 continuing to the termination of this case, was or is arrested in the City of Baltimore and then detained at the Baltimore Central Booking and Intake Center for more than 48 hours after arrest without release or presentment before a court commissioner or other judicial officer.1
SUSPICIONLESS STRIP SEARCH CLASS Class Representatives Anthony Haig, Eric Jones, Gary Saunders, Michael Washington, and Dana West. Class Definition Each person who, since May 12, 2002 continuing to the termination of this case, was or will be taken to Baltimore Central Booking and Intake Center (a) on charges or in cases not involving weapons, drugs, or felony violence, and (b) strip searched2 (c) prior to or without presentment before a court commissioner or other judicial officer.
1 The Plaintiffs reserve on the issue of whether, for persons presented and ordered released, any delays between the release order and actual release should be accrued toward the 48 hour determination. In some instances the delay was as much as 8 hours.
2 A “strip search” is being defined herein as the removal, pulling down, or rearrangement of clothing for the visual inspection of a person’s genital and/or anal areas, which may also include requiring the person to squat and cough, in the presence of one or more guards.
2

NON-PRIVATE STRIP SEARCH CLASS Class Representatives Anthony Haig, Eric Jones, Gary Saunders, Michael Washington, and Dana West. Class Definition Each person who, since May 12, 2002 continuing to the termination of this case, was or will be taken to Baltimore Central Booking and Intake Center and strip searched in the presence of other arrestees or staff not involved in the search, prior to or without presentment before a court commissioner or other judicial officer.
EQUAL PROTECTION STRIP SEARCH CLASS3 Class Representatives Anthony Haig, Eric Jones, Gary Saunders, Michael Washington, and Dana West. Class Definition Each male who, since May 12, 2002 continuing to the termination of this case, is or will be taken to Central Booking and strip searched prior to or without presentment before a court commissioner or other judicial officer.
3 As set forth in the Memorandum, both the Equal Protection Strip Search Class and the Underwear Search Class are submitted as Alternative Classes. Based on the written post orders and contention of Defendants, which is that male but not female arrestees were automatically stripped to their underwear, each male who is not proved to be a member of a bare skin strip search class would fall into the Underwear Search Class by way of the Defendants’ version of facts.
Likewise, while female search officers have testified that they strip searched female intakes, if more consistently with the post orders men but not women are proven to be searched to their bare skin, those men would be members of the Equal Protection Strip Search Class.
3

UNDERWEAR SEARCH CLASS Class Representatives Kevin Adams, Gary Saunders, and Aaron Ross. Class Definition Each male who, since May 12, 2002 continuing to the termination of this case, is taken to Baltimore Central Booking and Intake Center and searched to his underwear prior to or without presentment before a court commissioner or other judicial officer
INJUNCTIVE RELIEF CLASS Plaintiffs Gary Saunders, Anthony Haig, and Aaron Ross seek to be class representatives against Warden Franks in his official capacity for the purposes of injunctive relief. Each has standing for injunctive relief for the reasons set forth in the Memorandum.
WHEREFORE, the Named Plaintiffs request that the above-defined classes be certified under Rule 23, that they be appointed as class representatives for the classes set forth above, that undersigned counsel be appointed class counsel, and such other and further relief as this cause requires.
4

Respectfully submitted, ___/s/Sean R. Day/s/__________ Sean R. Day (Bar No. 12831) 8505 Baltimore Avenue • Suite B College Park, Maryland 20740 301.220.2270 (Phone) 301.220.2441 (Fax) sean@dayincourt.net
Respectfully submitted, __/s/Barrett S. Litt/s/__________ Barrett S. Litt (pro hac vice) Litt, Estuar et al. 1055 Wilshire Boulevard, Suite 1880 Los Angeles, CA 90010 213.386-3114 x 217 (Phone) 213.380-4585 (Fax) blitt@littlaw.com

Respectfully submitted, __/s/William Claiborne/s/______ William Claiborne (pro hac vice) 717 D Street, NW Suite 210 Washington, DC 20004 202-824-0700 (Phone) 202-824-0745 (Fax) claibornelaw@gmail.com

5

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND ERIC JONES, et al.

Plaintiffs v.

Civil Action No. CCB 05 CV 1287

SUSAN MURPHY, et al.

Defendants

MEMORANDUM IN SUPPORT OF MOTION FOR CLASS CERTIFICATION

Table of Contents

SUMMARY ......................................................................................................... 1
STATEMENT OF FACTS CENTRAL TO CLASS CERTIFICATION .......................... 6
ARGUMENT ...................................................................................................... 10
I. CLAIMS, PROPOSED CLASSES, NAMED PLAINTIFFS .............................. 10
A. Plaintiffs’ Claims ......................................................................... 10 (Chart of Claims) .......................................................................... 10
B. Plaintiffs' Proposed Class Definitions .......................................... 11 1. Overdetention Class .......................................................... 11 2. Suspicionless Strip Search Class ........................................ 12 3. Non-Private Strip Search Class ........................................... 14 4. Equal Protection Strip Search Class ................................... 15 5. Underwear Strip Search Class ............................................ 16
C. Individual Class Representatives ...................................................... 18 (Chart of Classes, Named Plaintiffs, and Defendants) ................... 18
1. Gary Saunders ................................................................... 19 2. David Colyns ..................................................................... 19 3. Eric Jones ......................................................................... 20 4. Dana West .......................................................................... 20 5. Tonia Bowie ........................................................................20 6. Anthony Haig ..................................................................... 21 7. Michael Washington ........................................................... 21 8. Kevin Adams ...................................................................... 22 9. Aaron Ross ......................................................................... 22

-i-

II. PLAINTIFFS’ CLAIMS SHOULD RECEIVE CLASS ACTION TREATMENT BECAUSE EACH CLAIM INDEPENDENTLY SATISFIES THE RULE 23 REQUIREMENTS, AND JUSTICE COMPELS CLASS ACTION TREATMENT ............................................................................ 22
A. The Class Prerequisites Under Rule 23(a) Have Been Met for Each Claim .................................................................................. 24
1. Numerosity ........................................................................ 24 a) Overdetention Class ................................................ 25 b) Suspicionless Strip Search Class .............................. 25 c) Non-Private Strip Search Class ................................. 26 d) Equal Protection Strip Search Class ......................... 26 e) The Underwear Strip Search Class ............................ 26
2. Commonality ..................................................................... 26 a) Overdetention Class ................................................. 27 b) Suspicionless Strip Search Class .............................. 28 c) Non-Private Strip Search Class ................................. 29 d) Equal Protection Strip Search Class ......................... 29 e) Underwear Strip Search Class .................................. 30
3. Typicality .......................................................................... 31
4. Adequacy ........................................................................... 32
B. The Class Prerequisites Under Rule 23(b) Have Been Met for Each Claim .................................................................................. 34
1. Rule 23(b)(2) Injunctive Relief Class ................................... 34
2. Rule 23(B)(3) Damages Class ............................................... 35 a) Common issues of law and fact predominate over individual issues of liability .............................. 35 i) Overdetention Class ........................................ 40 ii) Suspicionless Strip Search Class ..................... 41 iii) Non-Private Strip Search Class ........................ 42 iv) Equal Protection Strip Search Class ................ 42 v) Underwear Strip Search Class .......................... 42
b) Class Action Treatment Is Superior and the Case is Manageable as a Class Action .................................... 43
3. Rule 23 (B)(2)/ (B)(3) “Hybrid” Class ................................... 45
III. TRYING DAMAGES ON A CLASS WIDE BASIS USING STATISTICAL SAMPLING ............................................................................................. 46
CONCLUSION .................................................................................................. 49
-ii-

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

ERIC JONES, et al.

Plaintiffs v.

Civil Action No. CCB 05 CV 1287

SUSAN MURPHY, et al.

Defendants

MEMORANDUM IN SUPPORT OF MOTION FOR CLASS CERTIFICATION
Eric Jones et al., the Named Plaintiffs in this case, by and through undersigned counsel,
file this memorandum in support of their Motion for Class Certification under Fed. R. Civ. P. 23.

SUMMARY

The Fourth Circuit follows a liberal policy of granting class action treatment in cases such as this one, recognizing that certification of a class action serves important public purposes, including promoting judicial economy and efficiency, and affording injured persons a remedy. Gunnells v. Healthplan Servs., 348 F.3d 417, 424 (4th Cir. 2003).

Courts routinely certify strip search class actions similar to this one, including at least 9 in federal courts since 2007. See, e.g. (in reverse chronological order):

In re Nassau County Strip Search Cases, 2008 U.S. Dist LEXIS 29083 (E.D.N.Y. March 27, 2008) (after remand by Augustin v. Jablonsky (In re Nassau County Strip Search Cases), 2006 U.S. App. LEXIS 21602 (2nd Cir. 2006)
Johnson v. District of Columbia, 2008 U.S. Dist. LEXIS 9069 (D.D.C. Feb. 8, 2008) (challenging alleged practice of pre-presentment strip searches of arrestees) (Claiborne, Litt, and Day, counsel of record)
Moyle v. County of Contra Costa, 2007 U.S. Dist. LEXIS 89509 (N.D. Cal. Dec. 5, 2007)

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Engeseth v. County of Isanti, 2007 U.S. Dist. LEXIS 78694 (D. Minn. Oct. 23, 2007) Smith v. Dearborn County, 244 F.R.D. 512 (S.D. Ind. Aug. 28, 2007) Mitchell v. County of Clinton, 2007 U.S. Dist. LEXIS 48589 (N.D.N.Y. Jul. 5, 2007) Young v. County of Cook, 2007 U.S. Dist. LEXIS 31086 (N.D. Ill. Apr. 25, 2007) Barnes v. District of Columbia, 242 F.R.D. 113 (D.D.C. Mar. 26, 2007) (Claiborne, counsel of record) Sutton v. Hopkins County, 2007 U.S. Dist. LEXIS 3143 (W.D. Ky. Jan. 11, 2007) (denying motion to decertify) Dodge v. County of Orange, 226 F.R.D. 177, 183 (D.N.Y. 2005) Tardiff v. Knox County, 365 F.3d 1, 7 (1st Cir. 2004) Bullock v. Sheahan, 225 F.R.D. 227 (N.D. Ill. 2004) Bynum v. District of Columbia, 217 F.R.D. 43 (D.D.C. 2003) (Bynum II) (Claiborne and Litt, counsel of record) Blihovde v. St. Croix County, 219 F.R.D. 607, 622-23 (W.D.Wis. 2003) Maneely v. City of Newburgh, 208 F.R.D. 69, 78-79 (S.D.N.Y. 2002) Mack v. Suffolk County, 191 F.R.D. 16, 24 (D.Mass. 2000) Gary v. Sheahan, 1998 U.S. Dist. LEXIS 13378 (N.D.Ill. 1998), motion to decertify denied 188 F.3d 891 (7th Cir. 1999) Smith v. Montgomery County, 573 F. Supp. 604, 613 (D. Md. 1983) (Smith II)
Courts have also certified arrestee and inmate overdetention classes. County of Riverside v. McLaughlin, 500 U.S. 44 (1991) (detention for 48 hours without probable cause determination presumed unreasonable); Dellums v. Powell, 566 F.2d 167, 174, 189 (D.C. Cir. 1977) (certifying class on several claims of falsely arrested protesters against multiple individual defendants and approving use of damages matrix approved by jury for damages); Bynum v. District of Columbia, 214 F.R.D. 27 (D.D.C. 2003) (“Bynum I”); Jones v. Cochran, 1994 U.S. Dist. Lexis 20625 (S.D. Fla. 1994) (reference to (b)(3) certification order made in previous decision).
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Liability determinations for each claim in this case will depend on an analysis of a common nucleus of facts that will not vary in the individual cases. In re A.H. Robins Co., 880 F.2d 709, 741, 747 (4th Cir. 1989) (Court of Appeals affirmed certification of class under Rule 23(b)(1) that district court might have certified under 23(b)(3), noting that claim satisfied both prongs of Rule 23(b)(3)). This case presents exactly the kind of claims the Gunnells Court certified because (1) defendants’ liability on each claim can be determined in one lawsuit on the basis of common evidence; Gunnells, 348 F.3d at 427 n. 4, 438-39; Augustin v. Jablonsky (In re Nassau County Strip Search Cases), 2006 U.S. App. LEXIS 21602 (2nd Cir. 2006) (Rule 23(b)(3) predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation); Smith v. Montgomery County, 573 F. Supp. 604, 613 (D. Md. 1983) (Smith II) (certifying Rule 23(b)(3) class of female “temporary detainees” challenging indiscriminately applied strip search policy at county jail); and (2) the claims of the putative class members are so small that they will have no remedy unless they can get a class remedy. Gunnells, 348 F.3d at 426.
Additionally, common issues predominate over individualized questions even on damages because damages can be tried on a class-wide basis using statistical sampling, Hilao v. Estate of Marcos, 103 F.3d 767, 782 (9th Cir. 1996), or a damages matrix, Dellums v. Powell, 566 F.2d 167, 174, 189 (D.C. Cir. 1977).
Each class claim in this case presents one or two basic, overriding common questions of law or fact, the answers to which will establish, or defeat, liability for every single class member, and which is susceptible to generalized, class-wide proof. See Augustin, 2006 U.S. App. LEXIS 21602 at *22 (an issue is common to the class when it is susceptible to generalized, class-wide
3

proof). That is, for each claim, did the conduct (strip searches or overdetentions) occur as the result of a uniform policy or practice and, if so, were the practices constitutional? Smith II, 573 F. Supp. 604, 613 (D. Md. 1983); Tardiff v. Knox County, 365 F.3d 1, 7 (1st Cir. 2004); Augustin, 2006 U.S. App. LEXIS 21602 at *22; Dodge v. County of Orange, 226 F.R.D. 177, 183 (D.N.Y. 2005) (where a single issue, such as the existence of a uniform policy, is guaranteed to come up time and time again, issues of judicial economy strongly militate in favor of resolving that issue via a technique that will bind as many persons as possible).
The proof needed to resolve the common fact issues will primarily be, in the case of overdetentions, the electronic data on arrests, presentments, and releases from the Baltimore Central Booking and Intake Center’s (“CBIC” or “Central Booking”) computerized arrest booking system -- the “Automated Booking System” (“ABS”). In the case of strip searches, the proof needed for common fact issues will come from electronic data in Central Booking’s ABS, testimony and affidavits by persons subject to the procedures, and depositions of defendants and staff at Central Booking.
The identity of persons who have been subjected to underwear searches or strip searches cannot be ascertained solely from the data in the ABS because the system does not have a field indicating that someone has been strip searched. But, the members of the various strip search classes can be identified using the ABS in combination with other information. For example, the underwear strip search class is defined as all males arrestees who were processed at Central Booking during a definite period. The identities of all males processed through Central Booking during anyone period can be identified by running a query in the ABS because the system has
4

fields showing name, sex, and date of processing in Central Booking. Exhibit 124 ¶ 13.1 Meanwhile, if bare skin strip searches occurred during a certain period of time, those class members can be identified through a date-specific query. For the Suspicionless Strip Search, because the ABS contains charge information, persons with arrest charges that would not support a strip search can be identified. Id. Bryan Miller’s affidavit explains how the number of strip search class members can be established using statistical and other techniques if the search pattern was applied to most or many but not all arrestees. Exhibit 97. Furthermore, if an officer is proved to have not followed the general practice of strip searching, arrestees searched by such officer may be identified through the ABS. Exhibit 124 ¶ 13.2
Realistically, individual damages in these cases will be inadequate to attract sufficient counsel to represent individuals on a case-by-case basis. Class action treatment is the superior form of adjudication where the class members could not afford to bring individual lawsuits because their claims are too small. See Carnegie v. Household Int’l Finance, Inc., 376 F.3d 656, 661 (7th Cir. 2004) (“the realistic alternative to [this] class action is not 17 million individual suits, but zero individual suits”); Tardiff v. Knox County, 365 F.3d 1, 7 (1st Cir. 2004) (fact that vast majority of booking strip search claims would never be brought unless aggregated in a class action because provable actual damages are too small weighs in favor of certification). In fact, absent class certification and its attendant class-wide notice procedures, most potential class members -- who number in the tens of thousands -- will probably never even know that
1 Previously-filed exhibits are not being re-filed electronically, but will be reproduced in the paper copy. 2 Gary v. Sheahan, 1998 U.S. Dist. LEXIS 13378 (N.D. Ill. Aug. 19, 1998) (that two individual officers deviated from practice not sufficient to create a material issue of fact regarding existence of strip search practice for women).
5

defendants violated their clearly established constitutional rights, and thus will never will be able to vindicate those rights. Augustin, 2006 U.S. App. LEXIS 21602 at *27.
The alternative to certification, in the worst case, is no remedy for injured plaintiffs, or, in the best case, thousands of individual suits and motions for offensive collateral estoppel following a single favorable verdict. Id. In fact, class certification of the claims in this case “provides a single proceeding in which to determine the merits of the plaintiffs’ claims, and therefore protects the defendant from inconsistent adjudications.” Gunnells, 348 F.3d at 427.
Class action treatment of all claims in this case would provide the same benefits in the litigation identified by the Gunnells Court: (1) class certification will provide access to the courts for those with claims that would be uneconomical if brought in an individual action, 348 F.3d at 426; (2) class certification in this case seems likely to reduce litigation costs and preserve scarce judicial resources through the “consolidation of recurring common issues,” Id; and (3) class certification “provides a single proceeding in which to determine the merits of the plaintiffs’ claims, and therefore protects the defendant[s] from inconsistent adjudications.” Id. at 427 (emphasis in original).
STATEMENT OF FACTS CENTRAL TO CLASS CERTIFICATION The Baltimore Central Booking and Central Intake Center (CBIC or “Central Booking”) opened in 1995 as the central location for booking and processing arrestees in Baltimore City. Central Booking is an agency of the Division of Pretrial Detention and Services, which in turn is a division of the Maryland Department of Public Safety and Correctional Services. Central Booking processes approximately 100,000 arrestees each year (according to the State statistics, 95,463 in 2006). Exhibit 129.
6

Central Booking has a “booking floor” for persons awaiting presentment, which also has a few rooms dedicated for persons who have been presented, were ordered to be held, and are awaiting placement on another floor. However, the only detainees on the “booking floor,” where arrestees are processed and held pending presentment, are arrestees. At no time are arrestees intermingled with other types of detainees, including arrestees who have been ordered held at presentment. Arrestees are processed in the following steps (although males and females are held and processed separately in different parts of Central Booking, the process for both is basically the same): (1) arrestees admitted to Central Booking at the Sallyport and patted-down; (2) arrestees screened for medical issues (this step was not implemented in the early part of the class period); (3) arrestees taken into the “search room” for strip searches or other type of searches; (4) arrestees taken to booking area for fingerprinting, identification, and criminal history review; (5) arrestees held in holding cells pending presentment before a commissioner or release; (6) (for persons being charged) arrestees taken before commissioner for presentment.; (7) arrestees either released, or held with or without bond.
The deposition testimony of searching officers at Central Booking shows that during the class period, from May 12, 2002, until some time after July 5, 2005, all arrestees3 were subjected to blanket strip searches to their bare skin regardless of charge. The bare skin strip searches
3 For their Equal protection strip search claim, the Plaintiffs have pled in their complaint that Central Booking staff subjected virtually all males but virtually no females to blanket strip searches. However, the Suspicionless Strip Search Claim includes all “persons,” not just “males,” strip searched without a reasonable, individualized suspicion. See, e.g., Fourth Amended Complaint ¶¶ 9, 193-204, and 253-265 (Document 142, filed 10/12/07). The deposition testimony of line officers indicates that during the tenures of Defendant Wardens William Jednorski and Susan Murphy, and at the start of Defendant Warden Mitchell Franks’s tenure, the general practice of searching officers was to subject all arrestees (male and females) to strip searches.
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occurred throughout the tenures of Defendants Jednorski and Murphy, and stopped sometime during Warden Franks’ tenure. As to males: Exhibit 111 (excerpt), deposition testimony of Estep at 48-51, 54-55 (sometime after Franks came in as warden). As to females: Exhibit 114 (excerpt), deposition testimony of Stevenson at 22-25, 30 (end of 2005); Exhibit 115 (excerpt) deposition testimony of Banks at 23-25, 46-47, 50, 70-72 (into 2006); Exhibit 117 (excerpt), deposition testimony of Jones at 16-18, 20-27, 42-49 (active practice as of deposition date 11/5/07).4 Men were searched two at a time with no partition between them. Exhibit 110 (excerpt), deposition testimony of Diggs at 56-57; Exhibit 108 (excerpt), deposition testimony of Irvine at 77.
The Defendant Wardens have denied that strip searches took place during their tenures. Defendant Warden Murphy and Benjamin Brown, Assistant Commissioner for the Division of Pretrial Detention and Services, submitted Affidavits contending that the policy was to subject males (but not females) to “underwear searches,” that is, males were made to take off their clothes down to the last layer of clothes, but not down to their bare skin. Murphy Affidavit filed as Document 25, 10/7/05, appended to paper Exhibits filed herewith; Brown Affidavit at Exhibit 116. As set forth in the post orders prior to January 1, 2006, which includes all or part of all
4 The line staff officers deposed to date have generally testified that there was a policy or practice of subjecting all male and female arrestees processed at Central Booking to blanket strip searches during different parts of the class period; their testimony differs as to when the strip search practice ended. This discrepancy does not affect class certification, because the existence of a policy or practice of subjecting all male and female arrestees to blanket strip searches is not in dispute; the only dispute is when the practice stopped. When the practice stopped is a fact issue that can be resolved and applied across-the-board to all class members. The mere fact that some officers did not follow the practice of subjecting all arrestees to strip searches upon intake would not destroy the existence of a general practice of subjecting all arrestees to strip searches upon intake. Gary v. Sheahan, 1998 U.S. Dist. LEXIS 13378 (N.D. Ill. Aug. 19, 1998) (that two
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Defendants’ tenures, males were searched to their underwear, while women were not stripped at all. Plaintiffs have pled this fact pattern in the alternative and base the underwear strip search on this contention. Under Fed. R. Civ. P. 23 the Court may certify a claim that is pled in the alternative per Fed. R. Civ. P. 8(e)(2). Weyrich v. New Republic, Inc., 235 F.3d 617, 628 (D.C. Cir. 2001) (holding that plaintiffs may plead similar but mutually exclusive torts in the alternative); Bame v. Clark, 466 F. Supp. 2d 105, 110 (D.D.C. 2006); Smith v. District of Columbia, 295 F. Supp. 2d 53, 55 (D.D.C. 2003) (recognizing party’s right to proceed on alternate claims granted by Fed. R. Civ. P. (8)(e)(2)); Guerrero v. Brickman Group, LLC, 2007 U.S. Dist. LEXIS 21126 (D. Mich. 2007) (although denying FLSA certification Court grants certification under Fed. R. Civ. P. 23(b)(3) on state law claims even though one of the state law claims – unjust enrichment – is inconsistent, and pled in the alternative to, the FLSA claim); In re GMC, 385 F. Supp. 2d 1176, 1180 (D. Okla. 2005) (noting in a class action complaint context that plaintiffs may plead alternate, inconsistent claims and go to the jury on both).
Regarding the overdetention claim, during the class period at least 1,836 arrestees were held without presentment or release for more than 48 hours, 1,749 of which were during Warden Murphy’s tenure, 26 during Warden Jednorski’s tenure, and 61 during Warden Franks’s tenure. Exhibit 124 (Table 2).5
individual officers deviated from practice not sufficient to create a material issue of fact regarding existence of strip search practice for women). 5 As set forth in Exhibit 124, there are some booking entries in the ABS for which additional discovery will be needed to classify the bookings and calculate detention times.
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ARGUMENT I. CLAIMS, PROPOSED CLASSES, NAMED PLAINTIFFS
A. Plaintiffs’ Claims
Plaintiffs have five claims, described separately below, for which they seek class action treatment, as shown in the following chart. Each class claim6 separately meets the requirements of Rule 23(a). Each claim also separately meets both the requirements of Rule 23(b)(2) and Rule 23(b)(3), Smith v. Montgomery County, 573 F. Supp. 604, 613 (D. Md. 1983), and the requirements for a “hybrid” class under Fed. R. Civ. P. 23(b)(2)/ (b)(3). Miller v. Balt. Gas & Elec. Co., 202 F.R.D. 195, 198, 199 (D. Md. 2001), citing Eubanks v. Billington, 110 F.3d 87, 96 (D.C. Cir. 1997) (court may adopt a "hybrid" approach, certifying a (b)(2) class as to the claims for declaratory or injunctive relief, and a (b)(3) class as to the claims for monetary relief, effectively granting (b)(3) protections including the right to opt out to class members at the monetary relief stage). Each claim could also be certified under Rule 23(c)(4)(A).

Claim

Count/ ¶ ¶

Suspicionless Strip Search Non-Private Strip Search Equal Protection Strip Search Underwear Strip Search (Equal Protection only) Overdetention Claim

1/ 253-265 2/ 266-278 3/ 279-292 11/ 372-385
4/ 293-305

Gender of class members Males and Females Males Males only Males only
Males and Females

Constitutional provision 4th Amendment 4th Amendment 14th Amendment 14th Amendment
4th Amendment

6 The Fourth Circuit has expressly recognized that “if [an] action includes multiple claims, one or more of which might qualify as a certifiable class claim, the court may separate such claims from other claims in the action and certify them under the provisions of subsection (c)(4),” provided that “each subclass must independently meet all the requirements of (a) and at least one of the categories specified in (b).” Gunnells, 348 F.3d at 441, citing In re A.H. Robins Co., 880 F.2d 709, 740 (4th Cir. 1989).
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Some courts treat the existence of a class as a separate implicit element of Rule 23(a). Hammond v. Powell, 462 F.2d 1053, 1055 (4th Cir. 1972) (prerequisite of an ascertainable and definable class stems from the concern that at the time of judgment the individual members of the class will be readily identifiable). The definitions of the proposed classes set forth in Plaintiffs’ Fourth Amended Complaint easily satisfy this requirement because Plaintiffs’ proposed class definitions set forth general parameters that limit the scope of the classes to such a degree that it is administratively feasible for the Court to determine whether a particular individual is a member of one of the classes, and Plaintiffs can show membership in a class from a ministerial inspection of data in the “Automated Booking System,” Central Booking’s computerized booking system. Bynum I, 214 F.R.D. at 31-32.
B. Plaintiffs’ Proposed Class Definitions Certain plaintiffs move to certify one class for each of the claims as defined below.
1. Overdetention Class (Fourth Amended Complaint7 Count 4) Plaintiffs Kevin Adams, Tonia Bowie, David Colyns, Anthony Haig, Gary Saunders, and Michael Washington seek to represent a class (“Overdetention Class”) of males and females held at Central Booking more than 48 hours after arrest before presentment or release, defined as a class consisting of:
each person who, since May 12, 2002 continuing to the termination of this case, was or is arrested in the City of Baltimore and then detained at the Baltimore Central Booking
7 The Fourth Amended Complaint, Document 142, filed 10/12/07, is miscaptioned as the “Third Amended Complaint.”
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and Intake Center for more than 48 hours after arrest without release or presentment before a court commissioner or other judicial officer.8
Plaintiffs have sufficiently outlined the boundaries of the overdetention class because “by looking at the class definition, counsel and putative class members can easily ascertain whether they are members of the class.” Pigford, 182 F.R.D. at 346. Anyone who has been held in Central Booking beyond 48 hours after arrest during the class period can easily determine, simply by reading the definition, whether he or she was a member of the proposed class. See Bynum I, 214 F.R.D. at 32. There are no terms in the definition that require further clarification, and nothing in the definition would require the Court to hold individualized hearings to decide whether a particular individual fell within the scope of the definition. Id. In fact, plaintiffs can show membership in the class from a ministerial inspection of defendants’ computer records (taking time of (a) arrest and (b) time of presentment or release, as shown in the Arrest Booking System, and extracting information for persons detained for more than 48 hours without presentment). Exhibit 124.
2. Suspicionless Strip Search Class (Fourth Amended Complaint Count 1)
Anthony Haig, Eric Jones, Gary Saunders, Michael Washington, and Dana West seek to represent a class (“Suspicionless Strip Search Class”) of persons arrested on minor charges subjected to across the board strip searches pursuant to booking at Central Booking, defined as a class consisting of:
8 The Plaintiffs reserve on the issue of whether, for persons presented and ordered released, any delays between the release order and actual release should be accrued toward the 48 hour determination. In some instances the delay was as much as 8 hours.
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each person who, since May 12, 2002 continuing to the termination of this case, was or will be taken to Baltimore Central Booking and Intake Center (a) on charges or in cases not involving weapons, drugs, or felony violence, and (b) strip searched (c) prior to or without presentment before a court commissioner or other judicial officer. . .. The Fourth Amended Complaint defines a strip search at ¶ 8: the removal, pulling down, or rearrangement of clothing for the visual inspection of an arrested person’s genital and/or anal areas, which may also include requiring the person to squat and cough, in the presence of one or more guards. The Suspicionless Strip Search Class presents no individual questions on the issue of liability, or membership in the class, because the class definition includes every person strip searched pursuant to the booking process, excluding those persons whose arrest charge supplies reasonable suspicion to search. Tardiff, 365 F.3d at 5 (class definitions excluded those arrested for drugs, weapons or violent felonies); Augustin, 2006 U.S. App. LEXIS 21602, at *21-*28; Smith, 643 F. Supp. at 437.
Once the blanket strip search practice is established (including any time boundaries), the Plaintiffs can show membership in the class from a ministerial inspection of the computer data in the Automated Booking System to identify persons arrested on charges not involving weapons, drugs, or felony violence because the Automated Booking System captures arrest charge data for each arrestee and the date of arrest, which has been produced by the Defendants.
Moreover, Defendants do not keep records establishing reasonable suspicion for any arrestee. Therefore, once the Suspicionless Strip Search Class Plaintiffs establish the existence of a policy or practice of strip searches, the burden will fall upon Defendants to demonstrate, as an affirmative defense, that particular searches were reasonable, which, absent records, they cannot do. See Smith IV, 643 F. Supp. at 443; (burden on defendant to exclude); Mack v. Suffolk County, 191 F.R.D. 16, 24 (D. Mass. 2000); Blihovde v. St. Croix County, 219 F.R.D.
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607, 621 (W.D. Wis. 2003); Anderson v. Cornejo, 199 F.R.D. 228, 240-41 (N.D. Ill. 2000) (assuming that pattern and practice method of proof applies to class actions involving strip search policies); see also Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 360 (1977)(Title VII). If the Defendants can show proof regarding certain individuals, which is doubtful, those person can be excluded from the class. Smith, 643 F. Supp. at 443. Moreover, Plaintiffs’ proposed class definition excludes arrestees charged with crimes such as possession of drugs or weapons, or crimes of violence, where the nature of the charge itself would supply the reasonable suspicion needed to justify a strip search. Thus, Plaintiffs can show membership in the class from a ministerial inspection of Defendants’ computer records, which show the date of arrest and charge(s).
3. Non-Private Strip Search Class (Fourth Amended Complaint Counts 2)
Anthony Haig, Eric Jones, Gary Saunders, Michael Washington, and Dana West seek to represent a class (“Non-Private Strip Search Class”) defined as a class consisting of:
each person who, since May 12, 2002 continuing to the termination of this case, was or will be taken to Baltimore Central Booking and Intake Center and strip searched in the presence of other arrestees or staff not involved in the search, prior to or without presentment before a court commissioner or other judicial officer.9 The Non-Private Strip Search Class presents no individual questions on the issue of liability, or membership in the class, because the class definition is limited to every arrestee who was strip searched non-privately (males) prior to presentment. The phrase “in the presence of other arrestees or staff not involved in the search” is an element of the offense and plaintiffs have
9 While the Non-Private Strip Search Class, like the Suspicionless Strip Search Class, was pled as gender-neutral, the line staff testimony to date indicates only that males were strip searched in a non-private setting.
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alleged and will establish by proof applicable to the entire class of a practice of strip searching arrestees in groups of two and sometimes more, and establishing this practice does not present individualized inquiries. Therefore, as with the Suspicionless Strip Search Class, once a practice of strip searching arrestees in groups is established, Plaintiffs can show membership in the class from a ministerial inspection of Defendants’ computer records (i.e., all males processed at Central Booking, without regard to the charge).
4. Equal Protection Strip Search Class (Fourth Amended Complaint Count 3)
Plaintiffs Anthony Haig, Eric Jones, Gary Saunders, Michael Washington, and Dana West seek to represent an alternate class (“Equal Protection Strip Search Class”) of males (but not females) regardless of charge subjected to across the board strip searches at Central Booking, defined as a class consisting of:
each male who, since May 12, 2002 continuing to the termination of this case, is or will be taken to Central Booking and strip searched prior to or without presentment before a court commissioner or other judicial officer. The Equal Protection Strip Search Class presents no individual questions on the issue of liability, or membership in the class, because the class definition is limited to every male arrestee who was strip searched prior to presentment. Once the practice is established, Plaintiffs can show membership in the class from a ministerial inspection of Defendants’ computer records. This claim is now conceived in the alternative because the deposition testimony seems to indicate that the Central Booking line staff subjected all male and female arrestees to bare skin strip searches.
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5. Underwear Strip Search Class (Fourth Amended Complaint Count 11)
Plaintiffs Kevin Adams, Gary Saunders, and Aaron Ross seek to represent a class (the “Underwear Strip Search”) of males who were strip searched to their underwear, defined as a class consisting of:
each male who, since May 12, 2002 continuing to the termination of this case, is taken to Baltimore Central Booking and Intake Center and searched to his underwear prior to or without presentment before a court commissioner or other judicial officer.
The Underwear Strip Search presents no individual questions on the issue of liability, or membership in the class, because the class definition is limited to every male arrestee who was strip searched to his underwear prior to presentment. The phrase “strip searched to his underwear” is an element of the offense and plaintiffs have alleged and offered proof applicable to the entire class (and Defendant Wardens have conceded) that every male arrestee is strip searched to his underwear so the phrase does not present individualized inquiries. Therefore, as with the other classes, Plaintiffs can show membership in the class from a ministerial inspection of defendants’ computer records.
Conceivably, every male strip searched to his skin (e.g., Haig, Jones, Saunders pre-2006, Washington, and West) is also a member of the underwear strip search class, because either (1) they are considered two separate searches, i.e., the male arrestee was stripped to his underwear, then subjected to a full skin strip search (this is how the searches are conceived in the Post Orders filed by Defendants); (2) if there is but one search, the male arrestee is stripped to his underwear momentarily before pulling down his underwear; or (3) an underwear search might be deemed a lesser included act within a bare skin strip search.
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Plaintiffs conceive the underwear strip search class as a “residual” class. That is, if a person is stripped to his underwear, then stripped to bare skin, he would recover under a bare skin search class only. Meanwhile, the Defendants assert that every male arrestee prior to January 1, 2006 was automatically stripped to his underwear; to the extent that a male arrestee is excluded from all of the skin strip search classes, he would automatically fall into the underwear strip search class by admission of the Defendants regarding their search policies and practices.10
This Court may also certify the Claim which is pled in the alternative. Weyrich v. New Republic, Inc., 344 U.S. App. D.C. 245, 235 F.3d 617, 628 (D.C. Cir. 2001) (holding that plaintiffs may plead similar but mutually exclusive torts in the alternative); Bame v. Clark, 466 F. Supp. 2d 105, 110 (D.D.C. 2006); Smith v. District of Columbia, 295 F. Supp. 2d 53, 55 (D.D.C. 2003) (recognizing party’s right to proceed on alternate claims granted by Fed. R. Civ. P. (8)(e)(2)); Guerrero v. Brickman Group, LLC, 2007 U.S. Dist. LEXIS 21126 (D. Mich. 2007) (although denying FLSA certification Court grants certification under Fed. R. Civ. P. 23(b)(3) on state law claims even though one of the state law claims – unjust enrichment – is inconsistent, and pled in the alternative to, the FLSA claim); In re GMC, 385 F. Supp. 2d 1176, 1180 (D. Okla. 2005)(noting in a class action complaint context that plaintiffs may plead alternate, inconsistent claims and go to the jury on both).
10 On this theory, Plaintiff Gary Saunders, who alleges he was stripped to his bare skin during the tenures of Wardens Jednorski and Murphy and to his underwear during the tenure of Warden Franks, seeks to represent the underwear strip search class as to Warden Jednorski (in addition to Warden Franks), even though his claim is that he was stripped to his bare skin during Warden Jednorski’s tenure. If the factfinder believes Mr. Saunders was only stripped to his underwear during Warden Jednorski’s tenure, then Mr. Saunders, like any other member of the bare skin strip search class, may recover as a member of the underwear strip search class.
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C. Individual Class Representatives The Chart below shows the various class representatives, the classes they seek to represent, and during which Warden’s tenure their claims fall. The chart further sets apart Plaintiffs Saunders, Haig, and Ross as Named Plaintiffs with standing for a Rule 23(b)(2) injunctive relief class.

CLASSES

William Jednorski, Warden (5/12/02 – 3/8/04)

Overdetention

Suspicionless Strip Search

Saunders

Non-Private Strip Search

Saunders

Equal Protection Strip Search

Saunders

Underwear Strip Search

Saunders

DEFENDANTS

Susan Murphy, Assistant Warden (5/12/02 – 3/8/04) and Warden (3/9/04 – 6/22/05) Adams Bowie Colyns Haig Saunders Washington Haig Jones Saunders Washington West Haig Jones Saunders Washington West Haig Jones Saunders Washington West
Adams

Mitchell Franks, Warden (7/6/05 – Present)

State (Mitchell Franks, Official Capacity)

Haig Ross Saunders

Ross Saunders

Haig Ross Saunders
Haig Ross Saunders
Haig Ross Saunders
Haig Ross Saunders

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1. Gary Saunders Gary Saunders has been arrested numerous times in the City of Baltimore during the class period: (1) on August 8, 2002, by an officer of the BPD on a charge of misdemeanor theft; (2) on November 18, 2002 on warrants for Open Alcohol Container charges; (3) on September 14, 2004 on trespassing and disorderly conduct charges; (4) on February 19, 2005 by an officer of the BPD on a trespassing charge; (5) on June 30, 2006 on a disorderly conduct charge; and (6) numerous open alcohol container and/or other minor arrests for which he was not charged. FOURTH AMENDED COMPL. ¶ 51; Exhibit 1; Exhibit 26 (June 30, 2006 Arrest). On each occasion, Mr. Saunders was taken to Central Booking and strip searched pursuant to his booking. FOURTH AMENDED COMPL. ¶ 52-53; Exhibits 1 and 20. The strip searches were not based on reasonable suspicion, and were conducted in the presence of other arrestees. Id. 54, 57. After the June 30, 2006 arrest, unlike his other arrests, he was stripped only to his underwear. Exhibit 26. After the September 14, 2004 arrest for failing to leave a public bus stop, Mr. Saunders was detained without presentment for 59 hours, 57 minutes. FOURTH AMENDED COMPL. ¶ 58; Exhibits 42, 54, 55.
2. David Colyns David Colyns was arrested by an officer of the BPD on November 30, 2004, on charges of possessing paraphernalia and a pocket knife. FOURTH AMENDED COMPL. ¶ 46. The BPD then placed Mr. Colyns into the custody of Central Booking. Id. 47. Mr. Colyns was detained without presentment for 65 hours, 16 minutes. Id. 48; Exhibits 40, 74-75.
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3. Eric Jones Eric Jones was arrested by an officer of the BPD on January 9, 2005, on charges of misdemeanor assault and false imprisonment. FOURTH AMENDED COMPL. ¶ 33. The BPD placed Mr. Jones into the custody of Central Booking. FOURTH AMENDED COMPL.¶ 34. At Central Booking, Mr. Jones was strip searched pursuant to his booking. Id. 35; Exhibit 10. The strip search was not based on reasonable suspicion, and was conducted in the presence of other arrestees. Id. 37, 39. Mr. Jones was detained without presentment for more than 36 hours. FOURTH AMENDED COMPL. ¶ 40.
4. Dana West Dana West was arrested by an officer of the BPD on January 13, 2005, on a charge of leaving the scene of an accident. FOURTH AMENDED COMPL. ¶ 25. The BPD placed Mr. West into the custody of Central Booking. FOURTH AMENDED COMPL. ¶ 26. Mr. West was strip searched pursuant to his booking. Id. 27; Exhibits 2, 23. The strip search was not based on reasonable suspicion, and was conducted in the presence of other arrestees. Id. 29, 31.
5. Tonia Bowie Tonia Bowie was arrested in the City of Baltimore on April 11, 2005, on a charge of driving on a suspended license. FOURTH AMENDED COMPL. ¶ 42. She was placed into the custody of Central Booking, and was detained without presentment for 57 hours, 9 minutes. Id. 43-44; Exhibits 39, 76-77.
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6. Anthony Haig Anthony Haig was arrested by an officer of the BPD on April 17, 2005 on a charge of reselling Orioles baseball tickets. FOURTH AMENDED COMPL. ¶ 60. The BPD placed Mr. Haig into the custody of Central Booking. FOURTH AMENDED COMPL.¶ 61. Mr. Haig was strip searched pursuant to his booking. Id. 62; Exhibit 25. The strip search was not based on reasonable suspicion, and was conducted in the presence of other arrestees. Id. 63, 66. Mr. Haig was detained without presentment for more than 48 hours. FOURTH AMENDED COMPL. ¶ 67; Exhibits 44, 56, and 57. As of the date of the filing of the THIRD and FOURTH AMENDED COMPLAINTS, Mr. Haig had an outstanding warrant for his arrest that would subject him to arrest and being placed into the custody of Central Booking for booking. FOURTH AMENDED COMPL.¶ 69.
7. Michael Washington Michael Washington was arrested by an officer of the BPD in April 2005 on a charge of urinating in public. FOURTH AMENDED COMPL. ¶ 70. The BPD placed Mr. Washington into the custody of Central Booking. FOURTH AMENDED COMPL. ¶ 71. At Central Booking, Mr. Washington was strip searched pursuant to his booking. Id. 72; Exhibits 24, 99. The strip search was not based on reasonable suspicion, and was conducted in the presence of other arrestees. Id. 73, 76. Mr. Washington was detained without presentment for more than 48 hours. FOURTH AMENDED COMPL. ¶ 77. He was released without charge. Id. 78.
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8. Kevin Adams Kevin Adams was arrested by an officer of the BPD in April 2005 on a charge of having an open container of alcohol. FOURTH AMENDED COMPL. ¶ 79. The BPD placed Mr. Adams into the custody of Central Booking. FOURTH AMENDED COMPL. ¶ 80. At Central Booking, Mr. Adams was strip searched to his underwear pursuant to his booking. Id. 81. Mr. Adams was detained without presentment for more than 48 hours. FOURTH AMENDED COMPL. ¶ 84; Exhibit 45. He was released without charge. Id. 85.
9. Aaron Ross Aaron Ross was arrested by an officer of the BPD on October 12, 2007, on a charge of loitering for peacefully protesting in front of a restaurant. FOURTH AMENDED COMPL. ¶ 86. The Fourth Amended Complaint was filed after Mr. Ross’s arrest while he was in transit to Central Booking. Mr. Ross attempted to file a written administrative grievance but was advised there was no procedure for doing so prior to being searched. Exhibit 28. Mr. Ross was stripped to his underwear pursuant to his booking. FOURTH AMENDED COMPL. ¶ 88. He was arrested along with two women on the same charge for the same activities; neither woman was stripped to her underwear. Exhibit 29. II. PLAINTIFFS’ CLAIMS SHOULD RECEIVE CLASS ACTION TREATMENT BECAUSE EACH CLAIM INDEPENDENTLY SATISFIES THE RULE 23 REQUIREMENTS, AND JUSTICE COMPELS CLASS ACTION TREATMENT
All of the requirements of Rule 23(a) are met for all claims. Additionally, the claims are appropriate for certification as 23(b)(2) classes for purposes of injunctive relief because Rule 23(b)(2) and the Committee Notes specifically provide for declarative and injunctive relief as independent remedies. The claims are also appropriate for certification as 23(b)(3) classes for
22

purposes of monetary relief because the class issues – whether the strip searches and overdetentions occurred pursuant to established custom or policy – predominate over individual issues and class action treatment is the superior form of resolving the claims. Smith, 573 F. Supp. at 613.
The claims are also appropriate for certification as “hybrid” classes under (b)(2) for liability and (b)(3) for damages. Miller v. Balt. Gas & Elec. Co., 202 F.R.D. 195, 198, 199 (D. Md. 2001), citing Eubanks v. Billington, 110 F.3d 87, 92 (D.C. Cir. 1997) (permitting “hybrid” class to be certified under (b)(2) for liability and (b)(3) for damages). Finally, the specific issues of liability on each claim (including the effectiveness of Defendants’ proffered justification of the male-only underwear strip searches) is independently appropriate for certification under Rule 23(c)(4)(A). Gunnells, 348 F.3d at 441; Augustin, 2006 U.S. App. LEXIS 21602, at *18; Valentino v. Carter-Wallace, Inc., 97 F.3d 1227, 1234 (9th Cir. 1996).
The United States District Court for the District of Columbia earlier this year certified a strip search class action similar to this one (in which counsel for Plaintiffs in this case are also counsel of record). Johnson v. District of Columbia, 2008 U.S. Dist., LEXIS 9069 (D.D.C. 2008). In Johnson, the Plaintiffs allege that the Unites States Marshal Service for the Superior Court of D.C. subjected women, but not men, to pre-presentment strip searches. The court certified the case as a class action. While the court in Johnson denied certification for injunctive relief due to lack of standing, this case does not present similar standing difficulties.11
11 The court in Johnson also declined to certify, without prejudice, an alternative Fourth Amendment class on the alternative theory that both men and women were subjected to strip searches, as there was no evidence that men were strip searched as well. In this case, however, there is evidence both ways: the line staff depositions suggest that both men and women were
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In this case, each of the classes satisfy the requirements of (1) numerosity, (2) commonality, (3) typicality, and (4) adequacy of representation under FRCP Rule 23(a) and Rule 23(g). Moreover, each of the classes satisfies the requirements of Rule 23(b)(2) and (b)(3) and Rule 23(c)(4)(A).
A. The Class Prerequisites Under Rule 23(a) Have Been Met for Each Claim 1. Numerosity
Plaintiffs satisfy the numerosity requirement because they can show the “impracticability of joinder,” including some evidence or reasonable estimate of the number of class members. Cypress v. Newport News Gen. & Nonsectarian Hosp. Ass'n, 375 F.2d 648 (4th Cir. 1967) (class of eighteen individuals found sufficiently numerous). As the district court in Frank v. Eastman Kodak Co., 228 F.R.D. 174, 181 (D.N.Y. 2005) noted in certifying a class of 28 claimants, 28 is a small number of persons for a class, but it is better than 28 separate lawsuits. The determination of numerosity is a discretionary matter. Holsey v. Armour & Co., 743 F.2d 199, 217 (4th Cir. 1984). The relevant class period under Maryland law is three years back from the date of filing, leading to the conclusion that the class numbers in the thousands.
subjected to strip searches (though the female searches may have ended later), while the post orders and affidavits from Warden Murphy and Assistant Commissioner Brown suggest that men were discriminately searched. However, the Plaintiffs’ alternative “Underwear Search” class is distinguishable from Johnson in that the written policy of the Defendants was to subject men, but not women, to underwear searches, and they contend that the policy was followed. To support their alternate claim, the Plaintiffs have (1) the written policies, (2) the Affidavit of former Warden Murphy, and (3) the deposition testimony of Deputy Commissioner Brown, the State’s 30(b)(6) designee.
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a) Overdetention Class There is numerosity for the Overdetention Class. During the class period, according to the Automated Booking System data obtained from the State, at least 1,836 arrestees were detained for more than 48 hours without presentment or release. Exhibit 124 (Table 2).
b) Suspicionless Arrestee Strip Search Class
The strip search class members also number in the thousands. Every year, about 100,000 people, including 80,000 men, pass through Central Booking. If the practice stopped after Warden Franks became warden in July 2005, then the class may consist of up to roughly 400,000 arrestees.12
Using just the arrestee strip search affidavits, those affidavits evidence more than 20 men subjected to the illegal strip searches on minor charges. Exhibits 1-28. As the men undergo strip searches in groups of 2 or more at a time, the affidavits account for more strip searches and class members than their number. Moreover, a few of the affiants submitted affidavits in reference to numerous arrests (in the case of Gary Saunders, as many as 100 times during the class period), further increasing the number of claims represented by the affidavits. Exhibits 1, 8, 18.
These figures show that the proposed classes contain a large number of members and claims that would render joinder in one suit impracticable. Reid, 205 F.R.D. at 666.
12 This would be reduced by the number of arrestees whose charges would support a strip search; however, approximately 20% were arrested for “nuisance” violations and not even charged, Exhibit 129, so without any detailed analysis, the 400,000 would include at least 80,000 arrestees for whom the charge would not support a strip search. Precise numbers are not required, just a reasonable basis to believe that there is numerosity. Bynum I, 214 F.R.D. at 32.
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c) Non-Private Strip Search Class The minimum class size for the Non-Private Strip Search Class can also be determined from the Arrest Booking System. The Non-Private Strip Search Class includes all males who were searched, regardless of charge. Of the approximately 500,000 arrestees during the class period, 80%, or 400,000, were men.
d) Equal Protection Strip Search Class On the alternative theory that men but not women were strip searched, the minimum class size for the Equal Protection Strip Search Class can be determined from the same evidence as the Non-Private Strip Search Class, as it includes men arrested on charges that would have supported a non-discriminatory strip search.
e) Underwear Strip Search Class The Defendants have submitted affidavits and exhibits asserting that all men, but not women, are automatically subjected to searches to their underwear. This class, therefore, has hundreds of thousands of men in it (i.e., all men processed at Central Booking during the class period until January 1, 2006).
2. Commonality: Questions of Law and Fact Demonstrate a WellDefined Community of Interest
Rule 23(a)(2) requires that there be “questions of law or fact common to the class.” In Smith II, 573 F. Supp. at 612, this Court held that for a class of temporary detainees strip searched without probable cause to believe that they possessed either weapons or contraband, the legal question of whether defendant’s indiscriminate strip search policy was unconstitutional
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raised a common question of law as to defendant’s liability, satisfying the commonality requirement. As set out in detail for each claim in the following section, Plaintiffs establish commonality for each claim13 because for each claim Plaintiffs assert a pattern or policy of illegal conduct that affects each member of the class. As the leading treatise on class action litigation states, “when the party opposing the class has engaged in some course of conduct that affects a group of persons and gives rise to a cause of action, one or more of the elements of that cause of action will be common to all of the persons affected.” Alba Conte & Herbert Newberg, Newberg on Class Actions, § 3.10 (4th ed. 2002).
Plaintiffs satisfy this requirement because for each class, the existence of the practice is a common question of fact, and the constitutionality of the practice is a common question of law.
a) Overdetention Class Common issues of fact and law in the Overdetention Class are set forth in ¶ 246 of the FOURTH AMENDED COMPLAINT and include: (1) whether Central Booking has had a practice that has caused arrestees to be held more than 48 hours before presentment or release; and (2) whether the practice violates the Fourth Amendment. Smith, 573 F. Supp. at 612 (constitutionality of the search policy is a common question of law). The class definition includes only persons held more than 48 hours. Under Supreme Court precedent, at 48 hours the burden shifts to the detaining authority having the arrestees in custody to justify the continued detention. County of Riverside v. McLaughlin, 500 U.S. 44 (1991).
13 The First Circuit identified four basic common issues of law and fact in a strip search class action: “… what rule, policy or custom as to strip searches was in force in each county during the periods in question; was it lawful as applied to groups or individual class members; if unlawful as to some categories of arrestees, were there still facts as to particular arrestees that justified a
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b) Suspicionless Arrestee Strip Search Class Common issues of fact and law in the Suspicionless Strip Search Class are set forth in ¶ 198 of the FOURTH AMENDED COMPLAINT and include: (1) whether the Defendant Wardens and Central Booking have a custom and/or practice of subjecting intakes at Central Booking arrested on non-drug, non-weapon, non-violent charges to across the board (blanket) booking strip searches; and (2) whether such custom and/or practice, if proved, violates the Fourth Amendment. Smith, 573 F. Supp. at 612. Plaintiffs submitted in support of their Rule 56(f) motion affidavits of more than 20 former intakes covering more than 100 arrests, and other affidavits, establishing that Central Booking has a practice and custom of subjecting male arrestees to suspicionless strip searches, and doing so in view of other arrested persons. The strip search allegations of the named plaintiffs are supported by affidavits at Plaintiffs’ Exhibits 1, 2, 10, 20, 23-26, 28, and 99, as well as the testimony of Central Booking officers. The Wardens, according to Warden Murphy’s Affidavit, deny such a practice. The mere fact that the existence of the practice is a disputed issue does not preclude certification. Tardiff, 365 F.3d at 5; Augustin, 2006 U.S. App. LEXIS 21602, at *21-*28. The “issue [of whether the practice exists] is like any other common predicate to liability for multiple parallel claims -- say whether the train engineer was negligent (or acting within the scope of his employment) when the train went off the rails.” Tardiff, 365 F.3d at 5.
As stated above, the class definition excludes all arrestees for whom the nature of the arrest charge would supply reasonable suspicion to search (drugs, weapons, and violent felonies) and thus excludes those persons who could be strip searched as a matter of course
strip search; and if liability exists, what are the damages to each person injured?” Tardiff, 365
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regardless of the custom or policy of across the board strip searches. Tardiff, 365 F.3d at 5; Augustin, 2006 U.S. App. LEXIS 21602, at *21-*28; Smith, 643 F. Supp. at 437. Drawing draw bright lines according to the offenses that class members were arrested for avoids individual evidentiary disputes and thus preserves commonality. Smith, 643 F. Supp. at 437.
c) Non-Private Strip Search Class Common issues of fact and law in the Non-Private Strip Search Class are set forth in ¶ 210 of the FOURTH AMENDED COMPLAINT and include: (1) whether the Defendant Wardens and Central Booking have a custom and/or practice of subjecting (male) intakes at Central Booking to non private strip searches; and (2) whether such policies, customs, and practices, if found to exist, violate the Fourth Amendment. Smith, 573 F. Supp. at 612. Whether there has been a practice of strip searching arrestees in front of other persons not necessary for the search is a common question of fact applicable to the class. This claim does not depend on violation of the reasonable suspicion standard, so the definition of the class includes all arrestees subjected to the strip searches regardless of arrest charge.
d) Equal Protection Strip Search Class Common issues of fact and law in the Equal Protection Strip Search Class are set forth in ¶ 222 of the FOURTH AMENDED COMPLAINT and include: (1) whether the Defendant Wardens and Central Booking have and have had policies, customs, and/or practices of subjecting male arrestees being booked at Central Booking to strip searches under circumstances where similarlysituated female arrestees are not strip searched; and (2) whether such policies, customs, and practices, if found to exist, violate the Fourteenth Amendment. Smith, 573 F. Supp. at 612.
F.3d at 4.
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Plaintiffs submitted in support of their Rule 56(f) motion affidavits of more than 20 former intakes covering more than 100 arrests, and other affidavits, establishing that Central Booking does have a custom of subjecting male arrestees to suspicionless strip searches. Defendant Wardens have denied strip searching women. Furthermore, the Wardens’ “Post Orders,” Exhibits 102 and 103, exhibit facially disparate treatment of men and women, whereby women are patted down, but men are patted down, stripped to their underwear, then strip searched for any reason and in any manner based upon the desire of the search officer.
The mere fact that the existence of the practice is a disputed issue does not preclude certification. Tardiff, 365 F.3d at 5; Augustin, 2006 U.S. App. LEXIS 21602, at *21-*28.
This claim does not depend on violation of the reasonable suspicion standard so the definition includes all male arrestees subjected to the strip searches regardless of arrest charge.
e) Underwear Strip Search Class Common issues of fact and law in the Underwear Strip Search Class are set forth in ¶ 234 of the FOURTH AMENDED COMPLAINT and include: (1) whether the Defendant Wardens and Central Booking have and have had a practice of subjecting male arrestees being booked at Central Booking to underwear strip searches under circumstances where similarly-situated female arrestees are not strip searched to their underwear; (2) whether such practice, if found to exist, violates the Fourteenth Amendment. According to the Wardens and their post orders, their underwear strip search policy prior to January 1, 2006 was applied to men but not women.
The Plaintiffs have sought partial summary judgment regarding this policy (Document 162, filed 2/20/08). This does not preclude certification, it simply presents a common issues of
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fact and law in support of class certification. Smith II, 573 F. Supp. at 612.
This claim does not depend on violation of the reasonable suspicion standard so the definition includes all male arrestees subjected to the underwear strip searches regardless of arrest charge.
3. Typicality: Class Representatives Have Claims and Damages Typical of the Class
The typicality requirement of Rule 23 addresses whether the representatives’ claims and interests are in fact consistent and harmonious with the rest of the class. The purpose of the typicality requirement is to ensure that the claims of the representative and absent class members are sufficiently similar so that the representatives’ acts are also acts on behalf of, and safeguard the interests of, the class. The requirement of typicality is satisfied if the movant’s claim arises from the same course of events as those of the other potential class members and relies on similar legal theories to prove the defendants’ liability. In re Royal Ahold N.V. Sec. & ERISA Litig., 219 F.R.D. 343, 350 (D. Md. 2003). Here, for each claim common issues of law and fact predominate and, accordingly, there is a well-defined community of interest between the named plaintiffs and the proposed class members.
Likewise, in this case, for each claim the named plaintiffs’ legal theories are the same as every other class member’s, and all class members were injured by the same course of conduct, i.e., either the unconstitutional strip search practice, or the practice of overdetentions.
For the Overdetention Class, each named Plaintiffs’ claims (Kevin Adams, Tonia Bowie, David Colyns, Anthony Haig, Gary Saunders, and Michael Washington) are typical in that each was detained for more than 48 hours without presentment or release.
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The claims of the Named Plaintiffs for the three full strip search classes are also typical of all claims of their nature, as each named Plaintiff, just like every member of each class, was subjected to a strip search that was not private, was a blanket strip search, and, for the alternate Equal Protection Claim, was a search applied to men.
Lastly, the claims of Named Plaintiffs Kevin Adams, Gary Saunders, and Aaron Ross are typical of an underwear strip search claim, as each was subjected, like all members of that class, to an automatic search to his underwear due to the practice, policy, and custom of subjecting all men, but not women, to such a search.
4. Adequacy of Representation: Class Representatives Adequately Represent the Class; Class Counsel Adequately Represent the Class
Rule 23(a)(4) demands that named plaintiffs adequately represent the class. In this case, no conflicts of interest exist between the representative plaintiffs and the proposed class. Gunnells, 348 F.3d at 425. However, for a conflict of interest to prevent plaintiffs from meeting the requirement of Rule 23(a), that conflict must be a fundamental one that goes to the heart of the litigation. Id. at 430-431. The issues presented by the named representatives mirror those faced by the putative class, which stands only to gain by this action. The Named Plaintiffs have signed declarations expressing their commitment to represent each class of which they are a representative member. Exhibits 130-137.
Rule 23(g)(1)(C)(i) requires the Court to appoint adequate counsel to represent the class. Rule 23(g) requires that the court must consider the following in appointing class counsel: “[(1)] the work counsel has done in identifying or investigating potential claims in the action, [(2)] counsel’s experience in handling class actions, other complex litigation, and claims of the type asserted in the action, [(3)] counsel’s knowledge of the applicable law, and [(4)] the resources
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counsel will commit to representing the class.” In re Royal Ahold N.V. Sec., 2006 U.S. Dist. LEXIS 48928, *14-15 (D. Md. 2006); Noble v. 93 Univ. Place Corp., 224 F.R.D. 330, 346 (D.N.Y. 2004). The court may consider any “other matter pertinent to counsel’s ability to fairly and adequately represent the interests of the class.” Id.
Plaintiffs’ counsel have done extensive research and discovery in this case, including the hiring of a team of computer experts to handle and process data in the Automated Booking System. Plaintiffs’ counsel have taken a 30(b)(6) deposition and 20 depositions of line officers and supervisors, and have efficiently pursued a course of discovery in this case.
Plaintiffs’ counsel have litigated or served as amicus in several class action cases in the areas of strip searches and overdetentions. Johnson v. District of Columbia, 2008 U.S. Dist. LEXIS 9069 (D.D.C. 2008) (William Claiborne, Barrett Litt, and Sean Day, counsel); Bynum v. District of Columbia (Bynum I), 214 F.R.D. 27 (D.D.C. 2003) and Bynum v. District of Columbia (Bynum II), 217 F.R.D. 43 (D.D.C. 2003) (William Claiborne and Barrett Litt, counsel); Powell v. Barrett (I), 2005 U.S. Dist. LEXIS 685 (D. Ga. 2005) and Powell v. Barrett (II), 376 F.Supp.2d 1340 (D. Ga. 2005) (William Claiborne and Barrett Litt, counsel); Tardiff v. Knox County, 365 F.3d 1 (1st Cir. 2004) (William Claiborne, amicus counsel).
As described in their declarations, Plaintiffs counsel are experienced attorneys in civil rights and class action cases with sufficient staff and financial resources to prosecute the case. Counsels’ affidavits are attached as Plaintiffs’ Exhibits 121-123.
Plaintiffs’ legal team is led by Barrett Litt of Litt & Associates, a boutique civil rights and public interest law firm. Mr. Litt and his firm have successfully litigated many other class
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actions and multi-party public interest cases, which are detailed in his declaration. (See Declaration of Barrett S. Litt, Exhibit 121). Mr. Litt and his firms have been recognized on several occasions for their excellent civil rights work. Id. William Claiborne, also an experienced class action lawyer with experience in class action strip search and overdetention litigation, is lead managing counsel.
B. The Class Prerequisites Under Rule 23(b) Have Been Met for Each Claim “In order to be maintained as a class action, a representative suit must comply with the requirements of each of the four subsections of Rule 23(a), (numerosity, commonality, typicality, and adequacy of representation) and must satisfy the additional requirements of at least one of the three subdivisions of Rule 23(b).” 2 Newberg on Class Actions § 4:1, pg. 3. Here, class certification is proper under both Rule 23(b)(2), 23(b)(3), and as a hybrid (b)(2)/(b)(3) action.
1. Rule 23(b)(2) Injunctive Relief Class The current lawsuit is, in part, a paradigm of a Rule 23(b)(2) action. “Rule 23(b)(2) was drafted specifically to facilitate relief in civil rights suits.” 8 Newberg on Class Actions, §25:20. Rule 23(b)(2) is typically used in cases seeking injunctive or declaratory relief. Id. Rule 23(b)(2) is appropriate if the “party opposing the class has acted or refused to act on grounds generally applicable to the class.” See Rule 23(b)(2). The class representatives allege that Defendants’ practice and custom of overdetaining arrestees, subjecting arrestees to blanket, nonprivate, and discriminatory (gender) strip searches violates the United States Constitution, with these unconstitutional practices and customs affecting persons on a class-wide basis. Plaintiffs seek injunctive and declaratory remedies to ensure that Defendants do not resume these unlawful practices. The relief sought necessarily applies to the whole class. Hurley v. Ward, U.S. Dist.
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LEXIS 8630 (S.D.N.Y. 1979) (constitutionality of strip and body cavity searches of [visitors] properly certified under Rule 23(b)(2)). Thus, class certification is appropriate under Rule 23(b)(2).
As of the date of the filing of the FOURTH AMENDED COMPLAINT, Plaintiff Anthony Haig has standing to seek injunctive relief because he had an outstanding warrant for his arrest that would subject him to arrest and being placed into the custody of Central Booking for booking. FOURTH AMENDED COMPL.¶ 69. Gary Saunders has standing to seek injunctive relief because he is a “recidivist” (he is frequently arrested, regardless of whether he has committed a crime), and has been arrested numerous times in the City of Baltimore during the class period. He is thus likely to be re-arrested and subjected to the overdetentions and strip searches. In fact, during the pendency of the litigation, on June 30, 2006, he was arrested and processed at Central Booking, and subjected to a discriminatory search to his underwear. Exhibit 26. Lastly, in addition to the “recidivist” and a person with an outstanding warrant, counsel for Plaintiffs met the seemingly impossible task (for the facts of this case) of obtaining more ordinary standing for injunctive relief by filing the FOURTH AMENDED COMPLAINT on October 12, 2007 during the small window between the time Plaintiff Aaron Ross was arrested and his arrival at Central Booking. His affidavit, along with co-arrestee Jeannie Deibel, suggests that despite the new post orders, men but not women were being searched to their underwear. Exhibits 28 and 29.
2. Rule 23 (b)(3) Damages Class: Each Claim Satisfies the Predominance and Superiority Requirements Of Rule 23 (b)(3)
a) Rule 23(b)(3): Common issues of law and fact predominate over individual issues of liability. The Fourth Circuit test for predominance is whether a claim is sufficiently cohesive to warrant adjudication by representation. This test is met where class action treatment of a claim
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presents the most efficient method of resolving the claim through the “consolidation of recurring common issues.” Gunnells, 348 F.3d at 443; Smith II, 573 F. Supp. at 613. See also Tardiff, 365 F.3d at7; Augustin v. Jablonsky (In re Nassau County Strip Search Cases), 2006 U.S. App. LEXIS 21602 (2nd Cir. 2006). The predominance analysis should be applied on a per claim basis, and not on a per lawsuit basis. Gunnells, 348 F.3d at 443. The fundamental question to decide under Rule 23(b)(3) is whether the group aspiring to class status is seeking to remedy a common legal grievance. Augustin, 2006 U.S. App. LEXIS 21602 (Rule 23(b)(3) predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation); Smith II, 573 F. Supp. at 613. As the district court said in Smith in certifying a (b)(3) booking strip search class:
As previously stated, this case presents a common question of law which is predominant over any additional individual claims. Moreover, resolution of the liability and damages issues within the context of a class action is far more efficient than individual prosecution of damages actions. A class action is also the fairest means to settle this controversy since it is unlikely that most class members would pursue these claims on their own. Thus, because all the requirements of Rule 23 have been satisfied, the Court finds the certification of a class for the purpose of both damages and liability entirely appropriate.
Smith, 573 F. Supp. at 613.
Recurring common issues make up the heart of Plaintiffs’ case against defendants on each claim. This case presents claims similar to the claim certified in Gunnells. In Gunnells, the Fourth Circuit certified a single claim against a health insurance plan manager alleging that mismanagement of the plan resulting in its ultimate collapse similarly affected a large group of people in a single state. 348 F.3d at 427. Here, the overdetention Plaintiffs allege that Defendants were deliberately indifferent to the overdetentions at Central Booking because they
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maintained or acquiesced in the implementation of a release system “that simply delays all releases until the system, in its sweet time, and with the resources it chooses . . . is ready to make releases,” Berry v. Baca, 379 F.3d 764, 768 (9th Cir. 2004), and that system similarly affected a large group of people in a single city. The strip search Plaintiffs allege that Defendants’ strip search practices similarly affected a large group of people in a single city.
The common questions of law and fact “predominate over any questions affecting only individual members” in this case because the allegations of an unconstitutional custom and practice of overdetentions and strip searches relate to the defendants’ conduct, involve at least one common question of fact (existence of the policy or practice) and one common question of law (constitutionality of the policy or practice), and the questions are susceptible of class-wide proof. Bynum I, 214 F.R.D. at 39.
The proof needed to resolve the common fact issues will primarily be, in the case of overdetentions, electronic data on arrests, presentments and releases from Central Booking’s computerized “Automated Booking System.” In the case of strip searches, the proof needed will come from electronic data from Central Booking’s Automated Booking System, testimony and affidavits by persons subjected to the procedures, and the testimony of staff at Central Booking. The case will involve generalized evidence which will prove or disprove liability on a class-wide basis, and resolution of that question will dispose of the issue of defendant’s liability to plaintiffs in this action. Bynum I, 214 F.R.D. at 39.
The predominance determination is related to the commonality requirement of Rule 23(a), in that “the common issues identified as sufficient under Rule 23(a) must be shown by the plaintiffs to predominate over the non-common issues [but] the common issues do not have to be
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shown to be dispositive.” Bynum I, 214 F.R.D. at 39. Similarly, the leading commentators on the federal courts have explained that “when one or more of the central issues in the action are common to the class and can be said to predominate, the action will be considered proper under Rule 23(b)(3) even though important matters will have to be tried separately.” 7A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1778 (2d ed. 1986); Gunnells
In Bynum I, an overdetention class action case, the Court stated:
The Court has already determined the existence of at least one common question of fact (whether defendant has detained the class members later than their scheduled release date) and at least one common question of law (whether these alleged overdetentions violate the Fourth, Fifth, and Eighth Amendments). A resolution of these two questions, which are common to all of the class members’ claims, would dispose of the issue of whether defendant is liable to plaintiffs in this action. Bynum I, 214 F.R.D. at 39.
The only potential significant individual issue in certifying these claims is damages. This Circuit has long held that the mere existence of individual damages issues in a (b)(3) class does not cause individual issues to predominate over common issues on liability or causation so as to justify denying certification of the class, when the liability issue is susceptible of class proof. Central Wesleyan College v. W.R. Grace & Co., 6 F.3d 177 (4th Cir. 1993); Gunnells, 348 F.3d at 426. Other courts recently certifying strip search classes have held the same. Tardiff, 365 F.3d at 6; Augustin, 2006 U.S. App. LEXIS 21602; Johnson, 2008 U.S. Dist. LEXIS 9069 (D.D.C. 2008), *25 et seq.; and Nassau, 2008 U.S. Dist. LEXIS 29083 (E.D.N.Y. 2008).
The First, Second and Seventh Circuits have recently gone further and recognized that since most class actions settle, manageability (including predominance issues) issues – which
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generally do not arise until the damages phase – will in fact never arise at all. As the Seventh
Circuit stated in Carnegie:
Often, and possibly in this case as well, there is a big difference from the standpoint of manageability between the liability and remedy phases of a class action. The number of class members need have no bearing on the burdensomeness of litigating [RICO liability]. Whether particular members of the class were defrauded and if so what their damages were are another matter, and it may be that if and when the defendants are determined to have violated the law separate proceedings of some character will be required to determine the entitlements of the individual class members to relief. That prospect need not defeat class treatment of the question whether the defendants violated RICO. Once that question is answered, if it is answered in favor of the class, a global settlement along the lines originally negotiated (though presumably with different dollar figures) will be a natural and appropriate sequel. And if there is no settlement, that won't be the end of the world. Rule 23 allows district courts to devise imaginative solutions to problems created by the presence in a class action litigation of individual damages issues. Those solutions include "(1) bifurcating liability and damage trials with the same or different juries; (2) appointing a magistrate judge or special master to preside over individual damages proceedings; (3) decertifying the class after the liability trial and providing notice to class members concerning how they may proceed to prove damages; (4) creating subclasses; or (5) altering or amending the class. (internal citations omitted)
Carnegie v. Household Int’l Finance, Inc., 376 F.3d 656, 661 (7th Cir. 2004) (Posner, J.).
Certification “as a pretrial joinder device to facilitate group settlements [was] both proper and
desirable.” In re A.H. Robins Co., 880 F.2d 709, 738 (4th Cir. 1989); In re Honda Am. Motor
Co. Dealership Rels. Litig., 979 F. Supp. 365, 369 n.6 (D. Md. 1997).
Moreover, in this case, individual damage issues are obviated by Plaintiffs’ proposed
sampling procedure, described in their Trial Plan. Alternatively, for each claim, damages could
be handled by a damages matrix like the one used in Dellums, 566 F.2d at n.6 and 189. The
Dellums Court held that common issues predominated on the determination of class damages
where the jury awarded damages on a class wide basis (either for the class as a whole or by
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subclass ) by setting a fixed amount of damages for each class member for each claim according to a matrix or schedule. Id. at 189. The jury set a matrix of damages for each class member on the detention claims by fixing a set amount for specific periods of detention based on length of detention, and setting a lump sum for each class member on the false arrest and First Amendment claims. Id. at n.6.
Each class is specifically addressed below.
i. Overdetention Class The Overdetention Class has at least one common question of fact (whether Defendants held the Overdetention Class members more than 48 hours without presentment or release) and at least one common question of law (whether these alleged overdetentions violate the Fourth and Fourteenth Amendments). A resolution of these two questions would dispose of the issue of whether Defendants are liable to plaintiffs on this claim. Plaintiffs can prove the existence of a pattern of overdetentions using Central Booking’s own computer data in the Automated Booking System (arrest booking system), which will show every person held more than 48 hours.
Moreover, the proposed Overdetention Class definition sets a liability floor of 48 hours, which under Riverside triggers the presumed unreasonability of the detention, and obviates the need for individualized inquiries into the cause of overdetentions in individual cases. The “floor” of the class definition is fixed on a definite, objective criteria – date and time of presentment or release – that is easily ascertainable from Central Booking’s computers.
Although individual damages questions may arise, such individual damages determinations by themselves do not defeat predominance on the issue of liability on the overdetention claim. Moreover, damages could be handled by a simple damages matrix like the
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one used in Dellums, 566 F.2d at n.6 and 189, where damages are set according to the length of overdetention.
ii. Suspicionless Strip Search Class
The Suspicionless Strip Search Class has at least one common question of fact (whether Defendants subjected persons arrested on minor charges to across the board strip searches), and at least one common question of law (whether these alleged strip searches violate the Fourth and Fourteenth Amendments). A resolution of these two questions would dispose of the issue of whether Defendants are liable to Plaintiffs on this claim. Plaintiffs can prove the existence of a pattern of subjecting persons arrested on minor charges to across the board strip searches on a class wide basis. Once that is accomplished, Plaintiffs can use the computer data in the Automated Booking System to identify arrestees arrested on charges not involving weapons, drugs, or felony violence during the period in which arrestees were subjected to blanket strip searches.
Although individual damages questions may arise, such individual damages determinations by themselves do not defeat predominance on the issue of liability on the Suspicionless Arrestee Strip Search claim. Johnson at *29. Moreover, Plaintiffs’ proposed method of using sampling to try damages on a class-wide basis would obviate the need for individualized damages determinations, or, alternatively, for each claim, damages could be handled by a damages matrix like the one used in Dellums, 566 F.2d at 174 n.6 and 189. On the latter, for instance, damages could be determined on the basis of the arrest charge, and could factor in whether the person was later released without charge.
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iii. Non-Private Strip Search Class The Non-Private Strip Search Class also has at least one common question of fact (whether Defendants subjected men booked into Central Booking to non-private strip searches), and at least one common question of law (whether these alleged strip searches violate the Fourth and Fourteenth Amendments), the resolution of which would dispose of the issue of whether defendants are liable to plaintiffs on this claim. As above, damages could be ascertained in separate hearings, or on a class wide basis using sampling or a Dellums style matrix.
iv. Equal Protection Strip Search Class The Equal Protection Strip Search Class also has at least one common question of fact (whether Defendants subjected men but not women to blanket strip searches at Central Booking), and at least one common question of law (whether these alleged strip searches violate the equal protection clause of the Fourteenth Amendments), the resolution of which would dispose of the issue of whether Defendants are liable to Plaintiffs on this claim. Damages could be ascertained in separate hearings, or on a class wide basis using sampling or a Dellums style matrix.
v. Underwear Strip Search Class The Underwear Strip Search Class also has at least one common question of fact (whether Defendants subjected men but not women booked into Central Booking to searches down to their underwear), and at least one common question of law (whether these underwear strip searches violate the equal protection clause of the Fourteenth Amendments), the resolution of which would dispose of the issue of whether defendants are liable to plaintiffs on this claim.
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Damages could be ascertained in separate hearings, or on a class wide basis using sampling or a Dellums style matrix.
This class is proposed as an alternate class, in the event that the factfinder accepts the Defendants’ version of facts.
b) Class Action Treatment Is Superior and the Case is Manageable as a Class Action Rule 23(b)(3) also requires a class action to be the most “fair and efficient” method of resolving a claim. See Rule 23(b)(3). In analyzing that question, courts must consider four nonexclusive factors: (1) the interest of the class members in maintaining separate actions; (2) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (3) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (4) the difficulties likely to be encountered in the management of a class action. See Rule 23(b)(3); Tardiff, 365 F.3d at7; Augustin, 2006 U.S. App. LEXIS 21602, 30-31. All of these factors favor class certification for each claim in this case.
In Smith II this Court held that class action treatment of a booking claim similar to Plaintiffs’ strip search claims was “far more efficient than individual prosecution of damages actions” under Rule 23(b)(3). 573 F. Supp. at 613. Plaintiffs proposed trial plan sets forth the most efficient method – in fact for most class members the only method -- of resolving the class claims. Johnson also involves pre-presentment strip searches of arrestees.
Plaintiffs propose bifurcating the liability trial from damages determination on each claim, and trying liability for all claims in one proceeding. See In re Honda Am. Motor Co.
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Dealership Rels. Litig., 979 F. Supp. at 366. There will be little difficulty in managing a class action on the issue of liability, especially since any individualized inquiries will be inconsequential at the liability stage. At that point, if there is a favorable judgment for Plaintiffs on at least one claim, the parties can attempt to negotiate a settlement or to negotiate a means of resolving damages. If the parties cannot resolve the damages, damages can be tried on a class wide basis for each claim in one proceeding using a damages matrix or sampling.
Additionally, the class members have little interest in maintaining separate actions since, without class notification, most putative class members will not even know that they suffered a violation of their constitutional rights. See, Augustin, 2006 U.S. App. LEXIS 21602, *31-32; Blihovde v. St. Croix County, 219 F.R.D. 607, 622 (W.D.Wis. 2003) (many class members may not even be aware that they have a claim absent certification).
Even if the parties fail to address damages issues, the Court can still at that point enter a class-wide judgment of liability on the claims, leaving class members to pursue damage claims in separate law suits. Tardiff, 365 F.3d at 7.
However, determination of damages would be manageable as a class action because damages can be determined by using one of the methods specified by the Carnegie Court, such as bifurcating liability and damage trials with the same or different juries, appointing a special master, or by establishing class-wide damages on an aggregate basis in a single trial using statistical sampling or using a Dellums type damages matrix.
The primary consideration in determining whether a class action is “superior” is the availability of other possible ways of handing the case. Realistically, individual damages in these
44

cases will be inadequate to attract sufficient counsel to represent individuals on a case-by-case basis. Carnegie v. Household Int’l Finance, Inc., 376 F.3d 656, 661 (7th Cir. 2004) (“the realistic alternative to [this] class action is not 17 million individual suits, but zero individual suits”). Class members and their addresses and other identifying information, including when they were searched and overdetained, are easily identifiable from Central Booking’s Automated Booking System and other computerized records, including those of jails, courts, and motor vehicle departments. See Smith IV. Plaintiffs have obtained Automated Booking System data through discovery, which contains the last known addresses of all class members.
Possible manageability problems will rarely, if ever, by themselves be sufficient to prevent certification of a class. Klay v. Humana, Inc., 382 F.3d 1241, 1272 (11th Cir. 2004). And in this case, the liability issues will not prevent any manageability difficulties, while damages can be resolved using Plaintiffs’ proposed sampling methods or a Dellums style matrix.
3. Rule 23 (B)(2)/ (B)(3) “Hybrid” Class: Each Claim is Appropriate for Certification as a “Hybrid” Class Since there are claims for both injunctive relief and damages, and the requirements for certification are satisfied as to each, the Court may certify Rule 23(b)(2) and (b)(3) “hybrid” classes. See, e.g., Miller v. Balt. Gas & Elec. Co., 202 F.R.D. 195, 198, 199 (D. Md. 2001), citing Eubanks v. Billington, 110 F.3d 87, 92 (D.C. Cir. 1997) (permitting a “hybrid” class under (b)(2) for liability and (b)(3) for damages); Bratcher v. Nat'l Standard Life Ins. Co. (In re Monumental Life Ins. Co.), 365 F.3d 408, 416n. 16 (5th Cir. 2004). Judge Royce Lamberth of the District of Columbia district court recently certified, in two separate orders, two “hybrid” classes addressing virtually the same issues plaintiffs address here. These classes consisted of (1) persons held in the D.C. Jail after the release dates, and (2) defendants subjected to blanket
45

strip searches after being ordered released and returned to the D.C. Jail for release processing.
Bynum v. District of Columbia (Bynum I), 214 F.R.D. 27 (D.D.C. 2003) (“hybrid” overdetention
class certified); Bynum v. District of Columbia (Bynum II), 217 F.R.D. 43 (D.D.C. 2003)
(“hybrid” strip search class certified).
III. TRYING DAMAGES ON A CLASS WIDE BASIS USING STATISTICAL SAMPLING14
Plaintiffs submit herewith a trial plan (Exhibit 126) supported by expert statistical and
medical testimony for trying damages for all claims in on trial on the basis of a statistically valid
sample. Damages awarded the sample can then be extrapolated to the class, and distributed on
the basis of a matrix or formula approved by the jury. See Affidavits of Professor Richard Berk,
Bryan Miller, Dr. Susan Fiester, and Kevin Nichols in support of Plaintiffs’ proposed sampling
procedure, Exhibits 96, 97, 124, and 125. The Honorable Royce Lamberth of the District of
Columbia District Court recently approved a similar plan in Bynum v. District of Columbia, 02-
956 (RCL) (Bynum plaintiffs’ proposed trial plan, docket # 98, 9/8/03 attached hereto as Exhibits 127).15 Many states, including Maryland and the District of Columbia, have statutes
14 While this issue is being briefed, the Court may certify a class action in full while deferring on the method of determining damages, as has been done in other recent strip search class actions. See, e.g., In re Nassau County Strip Search Cases, 2008 U.S. Dist LEXIS 29083 at *20 (E.D.N.Y. 2008) (certifying both liability and damages but adding that “the Court has neither selected nor foreclosed any particular damages model”); Johnson v. District of Columbia, 2008 U.S. Dist. LEXIS 9069 at *29 (D.D.C. 2008) (“the Court reserves ruling on such [damages] methodology issues for another day but is satisfied that Plaintiffs have satisfied the predominance requirement for the purposes of class certification”); Mitchell v. County of Clinton, 2007 U.S. Dist. LEXIS 48589 (N.D.N.Y. Jul. 5, 2007) (“the Court has the flexibility to deal with management issues as they arise. At this point, denial of certification regarding damages or other issues is not warranted. The case in its entirety is certified as a class action”). 15 The case settled before trial. Bynum v. District of Columbia, 412 F. Supp. 2d 73 (D.D.C. 2006) (final approval order).
46

that specifically authorize and endorse the use of statistical evidence or proof of amount of damages sustained by the members of the class on a class-wide basis, without requiring proof of such matters by each individual member of the class. Md. Code Ann., Health-Gen. I §15120(e)(2) and (3); D.C. Code § 28-4508 (District of Columbia direct purchaser antitrust) (amount of damages sustained by the members of the class may be proven on a class-wide basis, without requiring proof of such matters by each individual member of the class).
Of these methods, establishing class-wide aggregate damages in a single damages trial using a matrix or statistical sampling is the best approach because it achieves economy for all parties and the Court without unfairness to any party or absent class member. In re Chevron U.S.A., 109 F.3d 1016, (5th Cir. 1997) (approving the methodology of statistical sampling but invalidating its use on an aggregate basis in that case because the sample was not chosen by reliable statistical method); Manual for Complex Litigation §21.493, at 101 (3d ed. 1995); Michael J. Saks and Peter David Blanck, Justice Improved: The Unrecognized Benefits Of Aggregation And Sampling In The Trial Of Mass Tort, 44 Stanford Law Review 815 (1992); Laurens Walker and John Mohanan, Sampling Damages, 83 Iowa Law Review 545 (1998); Laurens Walker, A Model Plan to Resolve Federal Class Action Cases by Jury Trial, 88 Virginia Law Review 805 (2000).
Aggregate trials of non-economic damages in civil rights cases have a long history in federal courts. 3 Newberg 10.5 at 483-487. See, Dellums v Powell, supra (compensatory damages and distribution matrix established by jury based on special verdict upheld for class of people subjected to unlawful arrests and illegal detentions; jury was able to award damages along
47

a sliding scale which took into account, in a rough way, the different experiences of class members without losing administrative feasibility); Hilao v. Estate of Marcos, 103 F.3d 767, 782 (9th Cir. 1996) (trial of class of 10,000 tried with sample of 137 people, the preparation for which was done under the supervision of a court appointed special master and aided by a statistical expert); In re Chevron U.S.A., 109 F.3d at 1020, citing to Hilao, 103 F.3d at 782-84, 786.
There is a growing trend in favor of using aggregate damage trials in federal courts and state courts in cases of all kinds. 3 Newberg 10.5 at 483-487 (4th ed. 2002); Newberg at 25:21 p.561; Blue Cross & Blue Shield of N.J., Inc. v. Philip Morris, Inc., 133 F. Supp. 2d 162, 169 (E.D.N.Y. 2001); In re Simon II Litigation, 211 F.R.D.86, 192-93 (E.D.N.Y. 2002); Bell v. Farmers Insurance Exchange, 115 Cal.App.4th 715, 9 Cal.Rptr.3d 544 (2004) (wage case). See A Model Plan To Resolve Federal Class Action Cases By Jury Trial, 88 Va. L. Rev. 405 (2002). Here plaintiffs propose first a liability trial, second a trial of the sample’s damages, and third a trial of the whole class’ damages based on testimony about how to extrapolate the sample determination to the class as a whole (using the same jury).
Since damages using sampling are determined on a class-wide basis that can be reliably applied to the class as a whole, the defendants pay no more to the class than they would in the aggregate to individuals if the cases of all class members were tried separately. See Allapattah Servcs. v. Exxonn Corp., 333 F.3d 1248, 1258 (11th Cir. 2003), Exxon Mobil Corp. v. Allapattah Servs., 125 S. Ct. 2611 (U.S. 2005). Defendants are protected because the aggregate amount could reflect the fact that some class members may have suffered no damages, if that in fact were the case. No un-injured class member, if any, would recover from any fund of
48

aggregate damages without submission of proof of damage because recovery from the fund is
conditioned on submission of a claim form executed under penalty of perjury. Here, through the
submission of sworn claim forms, equal in dignity to sworn testimony, unaided by expert
testimony, plaintiffs satisfy the standards for recovery of compensatory damages applicable to a
single plaintiff civil rights case. Bogle v. McClure, 332 F.3d 1347, 1358-1359 (11th Cir. 2003)
(damages of $1,000,000 per plaintiff in civil rights case based on plaintiffs’ testimony affirmed).
CONCLUSION
For these reasons and others that may be argued at a hearing, the Court should certify the
case as a class action, as is routinely done on cases similar to this one.
Respectfully submitted,
_/s/Sean R. Day/s/____________ Sean R. Day (Bar No. 12831) 8505 Baltimore Avenue • Suite B College Park, Maryland 20740 301.220.2270 phone 301.220.2441 fax
__/s/ William Claiborne/s/_____ William Claiborne (pro hac vice) 717 D. Street, NW • Suite 210 Washington, D.C. 20004 202-824-0700 (Phone) 202-824-0745 (Fax) claibornelaw@gmail.com
_/s/Barrett S. Litt/s/____________ Barrett S. Litt (pro hac vice) LITT, ESTUAR, HARRISON, MILLER & KITSON, LLP 1055 Wilshire Blvd. • Suite 1880 Los Angeles, CA 90017 213.386-3114 x 217 (Phone) 213.380-4585 (Fax) blitt@littlaw.com Attorneys for Plaintiffs and Proposed Class
49

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

ERIC JONES, et al.

Plaintiffs v.

Civil Action No. CCB 05 CV 1287

SUSAN MURPHY, et al.

Defendants

ORDER FOR CLASS CERTIFICATION
Upon consideration of the Plaintiffs’ Motion for Class Certification, the Defendants’ response thereto, and the Plaintiffs’ reply, it is thereupon this ____________ day of ________________ 2008,
ORDERED, that the motion be and is hereby GRANTED; and it is further,
ORDERED that an “Overdetention Class” class be and is hereby certified and defined as follows:
Each person who, since May 12, 2002 continuing to the termination of this case, was or is arrested in the City of Baltimore and then detained at the Baltimore Central Booking and Intake Center for more than 48 hours after arrest without release or presentment before a court commissioner or other judicial officer. And it is further,
ORDERED, that Kevin Adams, Tonia Bowie, David Colyns, Anthony Haig, Gary Saunders, and Michael Washington be and are hereby approved as class representatives of the Overdetention Class; and it is further,

1

ORDERED, that a “Suspicionless Strip Search Class” class be and is
hereby certified and defined as follows:
Each person who, since May 12, 2002 continuing to the termination of this case, was or will be taken to Baltimore Central Booking and Intake Center (a) on charges or in cases not involving weapons, drugs, or felony violence, and (b) strip searched1 (c) prior to or without presentment before a court commissioner or other judicial officer. And it is further,
ORDERED, that Anthony Haig, Eric Jones, Gary Saunders, Michael
Washington, and Dana West be and are hereby approved as class
representatives of the Suspicionless Strip Search Class; and it is further,
ORDERED, that a “Non-Private Strip Search Class” class be and is
hereby certified and defined as follows:
Each person who, since May 12, 2002 continuing to the termination of this case, was or will be taken to Baltimore Central Booking and Intake Center and strip searched in the presence of other arrestees or staff not involved in the search, prior to or without presentment before a court commissioner or other judicial officer. And it is further,
ORDERED, that Anthony Haig, Eric Jones, Gary Saunders, Michael
Washington, and Dana West be and are hereby approved as class
representatives of the Non-Private Strip Search Class; and it is further,
1 As used herein, “strip search” shall mean the removal, pulling down, or rearrangement of clothing for the visual inspection of a person’s genital and/or anal areas, which may also include requiring the person to squat and cough, in the presence of one or more guard.
2

ORDERED, that an “Equal Protection Strip Search Class” class be and is hereby certified and defined as follows:
Each male who, since May 12, 2002 continuing to the termination of this case, is or will be taken to Central Booking and strip searched prior to or without presentment before a court commissioner or other judicial officer. And it is further,
ORDERED, that Anthony Haig, Eric Jones, Gary Saunders, Michael Washington, and Dana West be and are hereby approved as class representatives of the Equal Protection Strip Search Class; and it is further,
ORDERED, that an “Underwear Search Class” class be and is hereby certified and defined as follows:
Each male who, since May 12, 2002 continuing to the termination of this case, is taken to Baltimore Central Booking and Intake Center and searched to his underwear prior to or without presentment before a court commissioner or other judicial officer. And it is further,
ORDERED, that Anthony Haig, Gary Saunders, and Aaron Ross be and are hereby approved as class representatives of the Underwear Search Class; and it is further,
ORDERED, that Anthony Haig, Gary Saunders, and Aaron Ross be and are hereby approved as class representatives for declaratory and injunctive relief; and it is further,
3

ORDERED that the classes defined above be maintained as a class action pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure as to the claims of the class members for declaratory or injunctive relief against Defendant Franks in his official capacity, and that the class be maintained as a class action pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure on issues of both liability and damages as to the claims of the class members for monetary relief as to all Defendants in their individual capacities; and it is further,
ORDERED, that Sean R. Day, William Claiborne, and Barrett S. Litt shall serve as class counsel in this action.
______________________________ CATHERINE C. BLAKE United States District Court Judge
4

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND ERIC JONES, et al.

Plaintiffs v.

Civil Action No. CCB 05 CV 1287

SUSAN MURPHY, et al.

Defendants

MEMORANDUM IN SUPPORT OF MOTION FOR CLASS CERTIFICATION

Index of Exhibits

No. Description

Strip Search Affidavit (expanded) of Gary 1
Saunders

Strip Search Affidavit (expanded) of Dana 2
West

3

Strip Search Affidavit of Ronald Armstrong

4

Strip Search Affidavit of Kenneth Bailey-El

5

Strip Search Affidavit of Bryant K. Battle

6

Strip Search Affidavit of Heath Demmer

7

Strip Search Affidavit of Kevin Gary

8

Strip Search Affidavit # 2 of Kevin Gary

9

Strip Search Affidavit of Maurice James

10 Strip Search Affidavit of Eric Jones

11 Strip Search Affidavit of Richard Jones

12 Strip Search Affidavit of Raymous Little

13 Strip Search Affidavit of Charles Martin

14 Strip Search Affidavit of Richard McNeal

15 Strip Search Affidavit of Antwan Moore

16 Strip Search Affidavit # 2 of Antwan Moore

-i-

E-Filed
11/30/05, Doc. 35-4
11/30/05, Doc. 35-5
11/30/05, Doc. 35-6 11/30/05, Doc. 35-7 11/30/05, Doc. 35-8 11/30/05, Doc. 35-9 11/30/05, Doc. 35-10 11/30/05, Doc. 35-11 11/30/05, Doc. 35-12 11/30/05, Doc. 35-13 11/30/05, Doc. 35-14 11/30/05, Doc. 35-15 11/30/05, Doc. 35-16 11/30/05, Doc. 35-17 11/30/05, Doc. 35-18 11/30/05, Doc. 35-19

17 Strip Search Affidavit of Vincent Perry

11/30/05, Doc. 35-20

18 Strip Search Affidavit # 2 of Vincent Perry

11/30/05, Doc. 35-21

19 Strip Search Affidavit of Therman Phillips

11/30/05, Doc. 35-22

20 Strip Search Affidavit of Gary Saunders

11/30/05, Doc. 35-23

21 Strip Search Affidavit of John Teague

11/30/05, Doc. 35-24

22 Strip Search Affidavit of Robert Maith

11/30/05, Doc. 35-25

23 Strip Search Affidavit of Dana West

11/30/05, Doc. 35-26

24 Strip Search Affidavit of Michael Washington 7/3/06, Doc. 67

25 Strip Search Affidavit of Anthony Haig

7/3/06, Doc. 67

Strip Search Affidavit of Gary Saunders 26
(6/30/06 arrest)

With this Motion

27 Strip Search Affidavit of Jon Swindall

With this Motion

28 Strip Search Affidavit of Aaron Ross

With this Motion

29 Search Affidavit of Jeannie Deibel

With this Motion

39 Overdetention Affidavit of Tonia Bowie 40 Overdetention Affidavit of David Colyns

11/30/05, Doc. 35-27 11/30/05, Doc. 35-28

Overdetention Affidavit of Gary Saunders 42
(“Walk Through”)

11/30/05, Doc. 35-30

44 Overdetention Affidavit of Anthony Haig 45 Overdetention Affidavit of Kevin Adams

With this Motion With this Motion

54- Overdetention Court Documents for Gary 55 Saunders

11/30/05 Doc. 35 - 31 & 32

74- Overdetention Court Documents for David 75 Colyns
76- Overdetention Court Documents for Tonia 77 Bowie
-ii-

11/30/05 Doc. 35 - 33 & 34 11/30/05 Doc. 35 - 35 & 36

Central Booking and Intake Facility Plan for

95 Efficient and Timely Processing of the

11/30/05, Doc. 35-42

Booking Floor

96 Declaration of Richard A. Berk

11/30/05, Doc. 35-43

97 Declaration of Bryan Miller

11/30/05, Doc. 35-44

Strip Search Affidavit (expanded) of Michael

99

7/3/06, Doc. 67

Washington

Post Order, Female Search Officer, Eff. 102
11/16/98, Rev. 8/20/04

2/20/08, Doc. 162-3

103 108

Post Order, Men’s Search Officer, Eff. 11/16/98, Rev. 8/20/04
Deposition of Vernon Irvine (exerpt), 9/7/07

2/20/08, Doc. 162-4
Excerpt of cited pages filed with this Motion

Deposition of Maurice Diggs (excerpt), 110
10/11/07 Deposition of Kevin Estep Jr. (excerpt), 111 10/11/07

Excerpt of cited pages filed with this Motion
Excerpt of cited pages filed with this Motion

114
115 116 117

Deposition of Beverly Stevenson (excerpt), 10/31/07
Deposition of Denise Banks (excerpt), 11/5/04
Affidavit of Benjamin Brown, 5/26/06
Deposition of Lola Jones (excerpt), 11/5/07

Excerpt of cited pages filed with this Motion
Excerpt of cited pages filed with this Motion
2/20/08, Doc. 162-17
Excerpt of cited pages filed with this Motion

121 Declaration of Barrett Litt -iii-

With this Motion

122 123 124 125 126 127

Declaration of William Claiborne Declaration of Sean Day Declaration of Kevin Nichols Declaration of Susan Fiester Trial Plan, Jones v. Murphy Trial Plan, Bynum v. D.C.

With this Motion With this Motion With this Motion With this Motion With this Motion With this Motion

129 130 131 132 133 134 135 136 137

Population Report for Central Booking

With this Motion

Class Representative Declaration by Tonia Bowie

With this Motion

Class Representative Declaration by David Colyns

With this Motion

Class Representative Declaration by Gary Saunders

With this Motion

Class Representative Declaration by Dana West

With this Motion

Class Representative Declaration by Michael With this Motion
Washington

Class Representative Declaration by Kevin Adams

With this Motion

Class Representative Declaration by Anthony With this Motion
Haig

Class Representative Declaration by Aaron Ross

With this Motion

App. Affidavit of Susan Murphy, filed by State

10/7/05, Doc. 25

-iv-

AFFIDAVIT

REGARDING

DETENTION

AT

BALTIMORE

CENTRAL BOOKING AND INTAKE CENTER

3. I was arrested

Approx. time of this arrest: _-_ on the following charge(s):

4. Which

police

[ department

!J
arrested you?___

_:_E5

5. Approximately

when di d you arrive at the Baltimore

Central Booking and

Intake Center("BooldngCenter')?

Date:'_lL'_

/D_2

Time: :_=,.9° _

6. Approximately Date:

when did you get to see a commissioner?

/

/

z_ ] _4 0 _'-

Time: \0:00

_;l_v_

7. Were you released on personal

recognizance?

If YES, how long

after you were ordered released did it take to get released from the Booking

Center?._

_ _ -_I_-_

.

8. Were you released

on bond?

I_

• If YES, how long after your bond was

posted did it take to get released from the Booking Center?

Pursuant

to 28 U.S.C.

the laws of the United

are true and correct.

§ 1746, I certify as true under penalty States of America that the statements

of perjury under in this Affidavit

Signed in Baltimore,

Maryland.

Date 1408-501064
PLAINTIFF 0044- 001

THIS PAGE IS ATTORNEY-WORK

PRODUCT

PRIVILEGED

INFORMATION

You are NOT agreeing

to participate

in any litigation,

and the attorney

is NOT

agreeing to represent

you in any litigation.

The following information,

however,

will be helpful in determining

what, if any, litigation

is suitable,

and allow the

attorney to further screen cases. The Attorney is not and will not conduct any

in-person

solicitation

of business.

Address _-_t_ _L-'d_ _l"_'_-

"

Phone 2 Email

(if applicable) (if applicable)

1.

Please feel free to provide any additional

details about your

experience

at the Booking Center that you believe was unfair:

l

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2 1408-501065
PLAINTIFF 0044- 002

AFFIDAVIT

REGARDING

DETENTION

AT

BALTIMORE

CENTRAL BOOKING AND INTAKE CENTER

(WALK-THROUGH)

i. Name:

u i_/ . A_-,S

Sex:/___

DOB: ]/-/3-_/

2. Date of this arrest: #f_-'_l

Approx. time of this arrest:

3. I was arrested
O

on the following charge(s):

4. Which police department

arrested you?

_ _ <_-e__,

_, _ v. Zl-

5. Approximately

when did you arrive at the Baltimore

Intake Center ("Central Booking")?

Date:

,-, _, _ _

6. I did not see a commissioner.

Central Booking and Time: _-t, 0 0 _,,

7. I was released crime.

from Central Booking without

being charged with a

8. Approximately

when were you released from Central Booking?

Date: _

I_

Time: _. 0 o ,a,,..,

Pursuant

to 28 U.S.C.

the laws of the United

are true and correct.

§ 1746, I certify as true under penalty States of America that the statements

of perjury under in this Affidavit

Signed in Baltimore,

Maryland.

Signature

Date

1408-501066
PLAINTIFF 0045- 001

DISTRIC___TC_OTURT F MARYLAND FOR BALTIMORE CITY
, [ LOOAA_.(.CEOAOOEOT.ESS)

1400 E. NORTH AVE.,

BALTO,

MD 21213

CASE NUMBER
DISTEICTCOURT

] TIME: 11=28
RELATED CASE(S):

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HAME{_ST, FIR_.M.I) HAIG, ANTHONY

DEFENDANT

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MAFIS NAME (LAST. FIRST, M.I)
HAIG, ANTHONY

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STATE
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CiTY
OAKLAND

E 17TH ST

STATE
CA

_DOMESTICVIOLENCE

[3HATECRIME

STATEMENT OF PROBABLE CAUSE

ARREST ON TRAFF C/NATURAL RESOURCES CITATIONS/CRIMINAL CHARGES/MUNICIPAL

ORDINANCES/PUBLIC

ZIP CODE
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Page 1 of 1
LOCAL LAWS

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DETAIL IN THE 200 BLK S

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TO ECU. DEF CHARGED AT CBIF.

)NTINUED ON ATTACHED SHEET ( FORM DC/CR 4A ) URT COPY

LEMNLY AFFIRM UNDER ]HE PENALTIES OF PERJURY THAT THE TERS AND FACTS SET FORTH [N THE FOREGOING DOCUMENT ARE
E TO THE BEST OF MY }_%rOWLEDG F-.,INFORMATION AND BELIEF.

_19/2005
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PROBABLE CAUSE CHARGES # LACK OF PROBABLE CAUSE CHARGES #

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THE STATEMENT OF CHARGES AND HAVE DETERMINED THAT

._E.E,sPROBABLE CAUSE TO DETAIN THE DEFENDANT

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FORM DC/CR 4 (Rev. 7194 )

1408-501067

PLAINTIFF 0056- 001

. D=JSTRICT COURT

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#: 051D09870

OF MJI_ .YLAND FOR BALTIMORE CITY

LOCATFJ_ AT {C_3ktR_ AD_i_-E_%_

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DCCaseNo: 0B01682639

DATE: 04/19/2005 TIME: 12:12 RELATED CASE[S):

DEFENDANTS NAME (LAET, FIRST, M.I}
HAIG, ANTHONY

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COMPLAINANT

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NAME(LAIT, ,FIRSTK, I) VIGUE, GEORGE C

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NAME(LAST,FIRSTM, J) HAIG, ANTHONY

TfTLE

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WORK TELEPHONE
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CITY
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STATEMENT OF CHARGES

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HOME TELEPHONE
(510 )7103370

APT, NO.

STATE
CA

ZIP CODE
946 06 I
Page 1 of 1

r

CJIS CODE

I

AR 05030626

3ID uNLAWFULLY

OFFER FOR RESALE,

IN CAMDEN YARDS WITHIN 1 MILE OF

ON OR ABOUT (DATE)

AT (PLACE) 200 S EUTAW ST

04-17-05

BALTIMORE

CITY,

STATE

OF MARYLAND

TICKET(S)

TO A PROFESSIONAL

SPORTING

EVENT THAT

ORIOLE PARK AT CAMDEN YARDS, IN BALTIMORE

CITY,

TAKES PLAC_ MARYLAND...

IN VIOLATION OF: DMD. ANN. CODE ART.

8EC.

CJCOMAR I AGENCY CODE NO.

21

CJIS CODE

AR

OCOMMON LAW OF ME=. EX)RDINANCE NO,

[]PUB. LOCAL LAW

19 ART.

198

A

SEC.

AGAINST THE PEACE, GOVERNMENT AND DIGNITY OF THE STATE

ON OR ABOUT (DATE)

AT (PLACE)

IN VIOLATION OF: [3MD. ANN. CODE

ART.

SEC.

DCOMMON LAW OF MD.

E]COMAR ! AGENCY CODE NO.

DORDJNANCE NO.

BCONTINUED ON ATI"ACHED SHEET (FORM DC/CR 2A)

(DPUB. LOCAL LAW

ART.

SEC.

AGAINST THE PEACE, GOVERNMENT AND
DIGNITY OF THE STATE

MATTERS AND FACTS SET FORTH IN THE FOREGOING DOCUMENT ARE

TRUE TO THE BEST OF MY KNOWLEDGE, INFORMATION AND BELIEF.

DATE

P

OFFICER

I I SOLEMNLY AFFIRM UNDER THE PENALTIES.OF PERJURY THAT THE

04119/2005

I _t_-_tj

_._

l AADGENCY

SUB5-9A3G7ENC'I_,_J

I.D. NO. F814

TRACKING NO.

1408-501068

I PROBABLE CAUSE

Y

N

I COMMISSIONER INiTiALS:

ID NO.

CBF NO.

FORM DC/CR 2 ( Rev 7194 )

PLAINTIFF 0056- 002

IiIi,I,lIlilIllI llIlIl I

DISTRICT COURT OF MARYLAND FOR Baltimore City

Located at 1400 E. North Avenue, Baltimore, MI) 21213

Case No.:000B01682639

STATE OF MARYLAND
COMPLAINANT: VIGUF_(__DR(fiEC OFFR
Agency/Subagency: AD 5937 ID:F814

VS

HAIG, ANTHONY

2262 E 17rH ST

OAKLAND, CA 94606

(X2#:051I)09870

SID: 2764139

Local ID:8002764139

Dig:

DL State:

Race: 1 Sex:M Height:5'10" Weight: 180 Hair:.BRN Eyes:BRN

DOB:02/16/1965 Phone(H): (510) 710-3370 Phone(W):

CHARGE SUMMARY

UPON THE FACTS CONTAINED IN THE APPLICATION OF VIGUE, GEORGE

IT IS FORMALLY CHARGED THAT HAIG, ANTHONY at

the dates, thnes and locations stated in the Charging document:

CHCgCIT

STATUTE

PENALTY

DESCRffrflON OF THE CHARO_

19 198 A

$50.00

RESALEINGORIOLETICKEST

C OFFR

_,_

_:,_,_ _:_ ,,,_.,,.,_....

Date:04119/2005

Time: 08:20 PM

Tracking No. 056004113513

Judicial Ottiee r:

1408-501069
PLAINTIFF 0056- 003

IIHIIlIllllIlIllllIlIll

DISTRICT COURT OF MARYLAND FOR Baltimore City

Located at 1400 E. North Avenue, Baltimore, MD 21213

Case No.: 000B01682639

STATE OF MARYLAND

VS

HAIG, ANTHONY

2262 E17TH ST

OAKLAND, CA 94606-0000

SID: 0002764139

Local ID: 8002764139

INITIAL APPEARANCE REPORT (Rule 4-213)
I hereby certify that when the above named Defendant was brought before me for initial appearance, I: INFORMED Defendant of each offense charged and of the allowable penalties, including mandatory penalties, if any. ADVISED Defendant that a copy of the Charging Document is not available, but will be provided as soon as possible and
gave Defendant a copy of the Notice of Advice of Right to Counsel. READ to Defendant, the Notice of Advice of Right to Counset ADVISED Defendant that an appearance for trial without a lawyer may result in the Court determining that counsel was
waived and the Defendant may have to proceed without a lawyer.

Pretrial Release Determination

(Rule 4-216)

On the basis of information available to and developed by me I HAVE DETERMINED:

That Defendant may be released on personal recognizance because the charge is not an offense for which the maximum

penalty is death or life imprisormaent.

That Defendant may be released on personal recognizance because it will reasonably assure the Defendant's appearance.

Notice
I INFORMED THE DEFENDANT: 1. that a condition of ANY release is that Defendant appear forbearing and/or trial as directed by the Court. 2. that a Warrant will be issued for the Defendant's arrest for any violation of condition(s) of release; that if the recognizance or bail bond is forfeited and the Defendant fails to surrender w_lin 30 days following the forfeiture, on a felony charge the penalty imposed may be up to 5 years in.jail and/or a fine up to $5,000, or on a misdemeanor charge the penalty knposed may be up to 1 year in jail and/or a fine up to $1,000; that the Defendant may be charged

3. wtoitnhotcifoyntetmheptCooufrt Cionurwt.riting of any change of address -4-ele " p_ numb_ ] ]_/

Date: 04/19/2005

Time: 08:26 PM

Commissioner:LA. _ _

[,.. [.J ]t,X

Receipt

I have [] read [] had read to me the offense(s) for which I am charged, violation of the conditions of release, the Notice of Advice of Right to Counsel.
I have been informed that the Arraignment date is 05/10/2005 at 1400 E. North Avenue, Baltimore, MD 21213.
I agree to any conditions of release and agree to appear as directed.

the conditions

ID:1260
penal_ for
' of this forlIt

Date

Signature of Custodian

Tracking No. 056004113513

1408-501070
PLAINTIFF 0057- 001

PLAINTIFF’S EXHIBIT 108

DEPOSITION OF VERNON IRVINE CONDUCTED ON FRIDAY, SEPTEMBER 7, 2007

1 (Pages 1 to 4)

1

3

1

IN THE UNITED STATES DISTRICT COURT 1

APPEARANCES

2

FOR THE DISTRICT OF MARYLAND

2 ON BEHALF OF THE JONES PLAINTIFFS:

3

SEAN R. DAY, ESQUIRE

3 ---------------------------x 4 ERIC JONES, et al. :

LAW OFFICE OF SEAN R. DAY

4

8505 Baltimore Avenue, Suite B

College Park, Maryland 20740

5

Plaintiffs :

6 v.

: 05-1287 CCB

5

(301) 220-2270

6

ON BEHALF OF THE NAACP PLAINTIFFS:

7 SUSAN MURPHY, et al. :

8

Defendants :

7

DARCY TROUTMAN, ESQUIRE

8

DAVID WHARWOOD, ESQUIRE

9 ---------------------------x

10

Deposition of VERNON IRVINE

GIBSON, DUNN & CRUTCHER

9

1050 Connecticut Avenue, N.W.

Washington, D.C. 20036

11

Baltimore, Maryland

12

Friday, September 7, 2007

10

(202) 887-3539

11

ON BEHALF OF THE DEFENDANTS:

13

10:06 a.m.

14

12

KARL A. POTHIER, ESQUIRE

13

DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONAL

15

SERVICES

16

14

6776 Reisterstown Road

Suite 313

17

15

Baltimore, Maryland 21215

18

(410) 585-3071 16

19 20 Job No.: 5-111118

17 18 19

21 Pages: 1-165

20

22 Reported by: Linda M. Bahur, RPR

21 22

2

4

1

Deposition of VERNON IRVINE, held at:

1

CONTENTS

2

L.A.D. Reporting Company

2

3

10 N. Calvert Street

3 EXAMINATION OF VERNON IRVINE

PAGE

4

Suite 141

4 by Mr. Day

5

5

Baltimore, Maryland 21202

5 by Ms. Troutman

149

6

6 by Mr. Wharwood

157

7

7 by Mr. Day

159

8

8

9

Pursuant to agreement, before Linda M.

9

10 Bahur, Registered Professional Reporter and Notary 10

11 Public of the State of Maryland.

11

E X H I B I T S

12

12 (Attached to the transcript; originals retained by Mr.

13

13 Day)

14

14

15

15 EXHIBIT

PAGE

16

16 1 Post order for men's search room,

17

17 dated 11/16/04, revised 8/20/04

82

18

18 2 Post order for the men's sallyport,

19

19 dated 12/1/1997, revised 8/20/2004

111

20

20 3 Post order for men's search room,

21

21 dated 1/1/06

113

22

22

L.A.D. REPORTING & DIGITAL VIDEOGRAPHY (202)861-3410 (800)292-4789 (301)762-8282 (703)288-0026 (410)539-3664

DEPOSITION OF VERNON IRVINE CONDUCTED ON FRIDAY, SEPTEMBER 7, 2007

20 (Pages 77 to 80)

1 Q And said there were two officers in the

77

79

1 occasionally also. Some officers search slower and

2 search room?

2 other ones, some are faster.

3 A Normally, yes.

3 Q What types of items have you found doing this

4 Q And how many arrestees are searched at a

4 search in the search room?

5 time?

5 A I found knives, needles, drugs. At sallyport

6 A Two.

6 entry, I found weapon, 9 millimeter.

7 Q And so, you'll have one officer searching one

7 Q Let's talk about the search.

8 arrestee and then the other searching the other

8 A Okay. Search, okay. I found knives. Ink

9 arrestee; is that correct?

9 pens can be used as weapons.

10 A Yes.

10 Q How many ink pens have you found?

11 Q Is there any partition of any sort between

11 A I just have one. It was a regular ink pen

12 the two arrestees?

12 but you take a top off of it, it was a knife.

13 A No, there's not. At one time there was but

13 Q So that's one ink pen you found --

14 not anymore. No.

14 A A regular ink pen --

15 Q When was that removed?

15 Q -- since '97?

16 A 2001.

16

MR. POTHIER: Objection. Objection to form.

17 Q Do you know why?

17 Go ahead.

18 A Well, the search room that we're using right 18 A It wasn't an ink pen; it was a knife. It was

19 now was an old working man closet they call it because 19 shaped like a -- ink pen you have, you pull the top

20 I've been there ten years. So the search area changed 20 part off, it was all knife. I only found one. It

21 maybe back in 1999 maybe. There was a partition 21 wasn't an ink pen.

22 there. Sometime it was knocked down or hinges fall 22 Q I want to make sure we're talking about the

1 out.

78

80

1 same period. One of those knives/ink pens --

2 Q And who is supervising, well, who supervises

2 A Yes.

3 the arrestees while they're on the bench waiting for

3 Q -- or perhaps a knife disguised as an ink

4 the search officer?

4 pen?

5 A Any officer passing by. You know? Could be 5 A Yes, only one I found.

6 the sallyport officer can visually look. The point

6 Q Since 1997?

7 officer is available. Anyone at booking station can 7 A Yes.

8 look over there and observe the arrestees on the

8 Q And on how many occasions have you found

9 bench, but normally the point officer and a medical 9 knives?

10 officer that's escorting during triage, there's two

10 A Depending upon who is at the door, if the

11 there. So usually there's around four to five

11 officer is not strong, do a thorough search, I found

12 officers in that general area.

12 over 60 or 70 knives.

13 Q How many arrestees do those benches

13 Q Do you recall, at what stage of the search

14 accommodate?

14 have you found these knives?

15 A Five to six.

15

MR. POTHIER: Objection. Asked and answered.

16 Q Are there occasions when you have more than 16 A Can you repeat the question again?

17 five to six arrestees waiting for the search room

17 Q Yes. What stage of the search have you found

18 officer? No?

18 the knives that you're referring to?

19 A All depending upon how fast triages are. If 19 A Well, I ask them to take everything out of

20 the bench is full for some unknown reason, it happens, 20 your pockets and several times after, going through

21 so once they see triage, they can sit back in the

21 the pockets myself and I'll pull a knife out and I'll

22 sallyport and wait to be searched. This happens

22 say, what is this? Oh, I forgot about that. Once I

L.A.D. REPORTING & DIGITAL VIDEOGRAPHY (202)861-3410 (800)292-4789 (301)762-8282 (703)288-0026 (410)539-3664

PLAINTIFF’S EXHIBIT 110

DEPOSITION OF MAURICE DIGGS CONDUCTED ON THURSDAY, OCTOBER 11, 2007

1 (Pages 1 to 4)

1

3

1

IN THE UNITED STATES DISTRICT COURT 1

APPEARANCES

2

FOR THE DISTRICT OF MARYLAND

2

3

3 On behalf of the Plaintiffs:

4 -----------------------------------------X

4 WILLIAM C.C. CLAIBORNE, III, ESQUIRE

5 ERIC JONES, et al., *

5

Claiborne Law

6

Plaintiffs *

6

717 D Street N.W., Suite 210

7 vs.

* CASE NUMBER:

7

Washington, D.C. 20004-2813

8 SUSAN MURPHY, et al., * 05-1287 CCB

8

(202) 824-0700

9

Defendants *

9

10 -----------------------------------------X

10 On behalf of the Plaintiffs:

11

11 SEAN R. DAY, ESQUIRE

12

12

Law Office of Sean R. Day

13

Deposition of MAURICE DIGGS

13

8505 Baltimore Avenue, Suite B

14

Baltimore, Maryland

14

College Park, Maryland 20740

15

Thursday, October 11, 2007

15

(301) 220-2270

16

10:12 a.m.

16

17

17

18

18

19 Job Number: 1-113748

19

20 Pages: 1 - 223

20

21 Reported by: Emily Rose Hoffman, Notary Public 21

22

22

2

4

1

Deposition of MAURICE DIGGS held at the 1

A P P E A R A N C E S, continued:

2 offices of:

2

3

3 On behalf of the Plaintiff NAACP:

4

L.A.D. Reporting Company

4 HILLARY A. GOULD, ESQUIRE

5

10 North Calvert Street

5 DARCY TROUTMAN, ESQUIRE

6

Suite 141

6

Gibson, Dunn & Crutcher, LLP

7

Baltimore, Maryland 21202

7

1050 Connecticut Avenue, N.W.

8

8

Washington, D.C. 20036-5306

9

9

(202) 887-3612

10

10

11

11 On behalf of the Defendants:

12

12 KARL A. POTHIER, ESQUIRE

13

Pursuant to Notice, before Emily Rose

13

Assistant Attorney General

14 Hoffman, Notary Public of the State of Maryland. 14

Maryland Department of Public Safety and

15

15

Correctional Services

16

16

6776 Reisterstown Road - Suite 313

17

17

Baltimore, Maryland 21215

18

18

(410) 585-3071

19

19

20

20

21

21

22

22

L.A.D. REPORTING & DIGITAL VIDEOGRAPHY (202)861-3410 (800)292-4789 (301)762-8282 (703)288-0026 (410)539-3664

DEPOSITION OF MAURICE DIGGS CONDUCTED ON THURSDAY, OCTOBER 11, 2007

14 (Pages 53 to 56)

53

55

1 A It's pretty good.

1 Q Did you believe they were doing the

2 Q Would it get the aluminum foil?

2 thorough searches of the prisoners?

3 A Probably would.

3 A If I felt -- if they didn't, I would

4

We don't allow people to come through 4 tell them to check again. I'm an FTO officer, so

5 like with gum and stuff like that because we walk 5 I train a lot of the officers in the building.

6 through ourselves, so --

6 Q What's a FTO officer?

7 Q The scanners?

7 A Field training officer. I train the

8 A (Witness nods head.)

8 new ones that come in.

9 Q Well, let's suppose a prisoner comes

9 Q I see. Are you like a manager or

10 through with gum, is that something you would find 10 supervisor? Can you tell me --

11 with -- the sallyport officer would find during

11 A No. I went through certified

12 his initial pat-down?

12 training, instructor, training them through the

13 A Yeah, that'd be like before. Like a

13 proper procedures, the way of doing it.

14 lot of times when we first walk through, if we 14 Q When did you go through that training?

15 know he's going to set it off really bad, we'll

15 A Last year.

16 just start taking some of the stuff out of his

16 Q How about before that period of time,

17 pockets for him, because he's still cuffed up. He 17 were you an FTO before that time?

18 can't take it, take it out.

18 A No, I just try to do the best I can.

19 Q How would you know somebody is going 19 Q I appreciate that.

20 to set it off pretty bad?

20

Well, how about -- like since you've

21 A We can look and tell it's going to be

21 been there a long time, the other guys, you

22 a lot of metal.

22 sometimes tell them, you need to do this better,

54

56

1 Q Like how?

1 you need to do that better?

2 A Keys. Guys got --

2 A They look up to me and call me the old

3 Q Oh, you see the things?

3 man.

4 A Visually.

4 Q We won't call you that here.

5 Q I see. Okay.

5

All right. Well, is there anything

6

Now, how about if somebody comes in, 6 about this sallyport that we haven't covered just

7 does the charge affect how thorough the initial

7 now that you think is important to the sallyport

8 search in the sallyport is?

8 job?

9 A Like I said, the charge doesn't really 9

MR. POTHIER: Objection. Vague.

10 affect that. Sometimes it's to your discretion, 10 A No.

11 whereas that -- you know, how well you do your 11 Q Is there anything that we haven't

12 job. If you don't do this, it's going to do that. 12 covered here that officers in the sallyport do to

13 Q But it sounds like at least you, when

13 try to find any kind of contraband, guns, weapons,

14 you're working in the sallyport, you did a pretty 14 anything like that on a prisoner as he's brought

15 thorough pat-down of the -- or pretty thorough 15 into the sallyport?

16 search of the prisoners as they came into the

16 A I think basically we covered

17 sallyport?

17 everything to me.

18 A Yes.

18 Q All right. So we started to do this

19 Q How about your colleagues, were you 19 before. Let's flip.

20 ever in there when colleagues were in there, in 20

Now you're in the search room. How

21 the sallyport working?

21 many people are in the search room at any one

22 A Yes.

22 time?

L.A.D. REPORTING & DIGITAL VIDEOGRAPHY (202)861-3410 (800)292-4789 (301)762-8282 (703)288-0026 (410)539-3664

DEPOSITION OF MAURICE DIGGS CONDUCTED ON THURSDAY, OCTOBER 11, 2007

15 (Pages 57 to 60)

57

59

1 A It's one on one. If I have a person

1 Q Do you know on what occasions they'd

2 to search, I have that one person, and the other 2 have the leg irons on?

3 officer have another person to search.

3 A They're runners --

4 Q So there is usually two?

4 Q I see.

5 A Just two of us.

5 A They're fighters, combative.

6 Q Okay. But there is always two?

6 Q Right.

7 A Mm-hmm, yes.

7

When the sallyport officer is through

8 Q How can you have two officers in the 8 processing the prisoner, he puts him in the chair

9 search room but only one in the sallyport?

9 for pick up by the search officer, does that

10

MR. POTHIER: Objection. Staffing. 10 prisoner still have his handcuffs on?

11

MR. CLAIBORNE: He may know.

11 A Yes.

12 Q Do you know?

12 Q Okay. So it's the searching officer

13 A I guess they see that's not a reason 13 that takes the cuffs off?

14 to have two people there.

14 A Yes.

15

MR. CLAIBORNE: Doesn't rise to the 15 Q Okay. So when the search officers are

16 level of objection, but let the record show --

16 in the search room, is there anything separating

17

MR. POTHIER: Well, I mean, I think 17 one search officer's processing his prisoner and

18 he's already testified that the sallyport is a

18 the other search officer is working with his

19 much more controlled environment, to the extent 19 prisoner, anything that separates the two?

20 they're still cuffed, you know, it's -- search

20 A We have the dividing partitions in

21 room is a little different. They're being -- the 21 between. And that way, he have his side of

22 cuffs are being removed.

22 privacy, and the other person can have his side of

58

60

1 BY MR. CLAIBORNE:

1 privacy.

2 Q Is that right, I mean, because the

2 Q And from 1996 up through the present,

3 cuffs are coming off, that's why you need two guys 3 have those dividers always been installed in the

4 in the searching room?

4 search room?

5 A Yes.

5 A Yeah, until they got knocked down, I

6 Q Okay. Is there any other reason like

6 guess.

7 that you can tell me why you need two guys in the 7 Q When did they get knocked down?

8 searching room?

8 A I can't recall the year, but they got

9 A Safety.

9 knocked down.

10 Q Okay. Safety.

10 Q But a long time ago?

11

And that's because the fact that the

11 A It's been a couple years.

12 cuffs are off, or is there some other reason?

12 Q Did they get put back up?

13 A I guess for --

13 A No. They haven't. No.

14

MR. POTHIER: If you know.

14 Q So there's no divider right now; is

15 A -- safety.

15 that right?

16 Q Sure.

16 A Right.

17

Let's -- when prisoners are brought in

17 Q Okay. So let's say you're in the

18 to the sallyport, are they wearing leg irons or

18 search room. When you're through searching a

19 handcuffs on the ankles, anything like that?

19 prisoner, what would you do with him?

20 A It depends.

20 A He'll be escorted out to the booking

21 Q Sometimes they do?

21 room -- booking area.

22 A (Witness nods head.)

22 Q Who would escort him out?

L.A.D. REPORTING & DIGITAL VIDEOGRAPHY (202)861-3410 (800)292-4789 (301)762-8282 (703)288-0026 (410)539-3664

PLAINTIFF’S EXHIBIT 111

DEPOSITION OF KEVIN ESTEP, JR. CONDUCTED ON THURSDAY, OCTOBER 11, 2007

1 (Pages 1 to 4)

1

3

1

UNITED STATES DISTRICT COURT 1

APPEARANCES

2

FOR THE DISTRICT OF MARYLAND 2

3

3 On behalf of the Plaintiffs:

4 -----------------------------------------X

4 WILLIAM C.C. CLAIBORNE, III, ESQUIRE

5 ERIC JONES, et al., *

5

Claiborne Law

6

Plaintiffs *

6

717 D Street N.W., Suite 210

7 vs.

* CASE NUMBER:

7

Washington, D.C. 20004-2813

8 SUSAN MURPHY, et al., * 05-1287 CCB 8

(202) 824-0700

9

Defendants *

9

10 -----------------------------------------X

10 On behalf of the Plaintiffs:

11

11 SEAN R. DAY, ESQUIRE

12

Deposition of KEVIN ESTEP, JR.

12

Law Office of Sean R. Day

13

Baltimore, Maryland

13

8505 Baltimore Avenue, Suite B

14

Thursday, October 11, 2007

14

College Park, Maryland 20740

15

2:01 p.m.

15

(301) 220-2270

16

16

17

17

18 Job Number: 1-113748

18

19 Pages: 1 - 113

19

20 Reported by: Emily Rose Hoffman, Notary Public 20

21

21

22

22

2

4

1

Deposition of KEVIN ESTEP, JR., held at 1

A P P E A R A N C E S, continued:

2 the offices of:

2

3

3 On behalf of the Plaintiff NAACP:

4

L.A.D. Reporting Company

4 HILLARY A. GOULD, ESQUIRE

5

10 North Calvert Street

5 DARCY TROUTMAN, ESQUIRE

6

Suite 141

6

Gibson, Dunn & Crutcher, LLP

7

Baltimore, Maryland 21202

7

1050 Connecticut Avenue, N.W.

8

8

Washington, D.C. 20036-5306

9

9

(202) 887-3612

10

10

11

11 On behalf of the Defendants:

12

12 KARL A. POTHIER, ESQUIRE

13

Pursuant to Notice, before Emily Rose 13

Assistant Attorney General

14 Hoffman, Notary Public of the State of Maryland. 14

Maryland Department of Public Safety and

15

15

Correctional Services

16

16

6776 Reisterstown Road - Suite 313

17

17

Baltimore, Maryland 21215

18

18

(410) 585-3071

19

19

20

20

21

21

22

22

L.A.D. REPORTING & DIGITAL VIDEOGRAPHY (202)861-3410 (800)292-4789 (301)762-8282 (703)288-0026 (410)539-3664

DEPOSITION OF KEVIN ESTEP, JR. CONDUCTED ON THURSDAY, OCTOBER 11, 2007

12 (Pages 45 to 48)

45

47

1 A A shower curtain.

1 A Many times, most of the time.

2 Q And how is it attached?

2 Q Is there any sort of partition in

3 A With the little hooks on the pole.

3 between them?

4 Q And what type of material is the

4 A Now?

5 shower curtain?

5 Q Yes.

6 A Plastic.

6 A No. But it was at one time.

7 Q And is it something that if you're

7 Q Okay. And then it got knocked down?

8 standing outside the search room, you can see 8 A Yes. Taken down, knocked down,

9 silhouettes of people who are inside the search 9 whatever.

10 room?

10 Q That's what we're hearing.

11 A Not that I know of. Never looked at 11

When did that happen?

12 it like that.

12 A Man, them things been down for a

13 Q How far from the floor is the bottom 13 while. I can't even recall.

14 of the curtain?

14 Q Matter of --

15 A I have no clue.

15 A Years.

16 Q About ankle high, knee high?

16 Q Years?

17 A About ankle high.

17 A Years.

18 Q Okay. And when -- is there a gap

18 Q Do you know why it hasn't been

19 between the curtain and the wall?

19 replaced?

20 A Yeah, about maybe an inch.

20 A No.

21 Q And where do people stand when they're 21 Q Why don't you tell me currently what's

22 being searched within the search room?

22 involved in a search in the search room.

46

48

1 A You have two mats in there. There's a 1 A Well, they take off their shoes,

2 mat here (indicating), and then maybe a mat right 2 socks, pants.

3 here (indicating) where that third chair is.

3 Q How about the shirt?

4 Q And where are those in relation to the

4 A Me particularly, I don't take their

5 entryway?

5 shirts off.

6 A Maybe a couple of steps.

6 Q Why not?

7 Q If you took down the curtain, would

7 A Because I checks, I make them lift it

8 you be able to see the areas where the men are

8 up.

9 searched?

9 Q Is there a time since you've been at

10 A If you walk past?

10 Central Booking that a more thorough search was

11 Q Yes.

11 done in the search room?

12 A Yes.

12 A Yes.

13 Q So you might also be able the see that

13 Q What was involved in the more thorough

14 if somebody is opening the curtain to go inside?

14 search?

15 A Mm-hmm.

15 A Naked.

16 Q Or to come outside?

16 Q And do you know when you changed over

17 A Mm-hmm.

17 from the naked to doing the underwear and the

18 Q Is that "yes"?

18 shirts?

19 A Yes.

19 A I'm thinking maybe about two years.

20

THE WITNESS: I'm sorry.

20 Q About two years ago?

21 Q Are there occasions when two arrestees 21 A About two years.

22 are being searched at the same time?

22 Q Do you know the warden who was there

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DEPOSITION OF KEVIN ESTEP, JR. CONDUCTED ON THURSDAY, OCTOBER 11, 2007

13 (Pages 49 to 52)

1 when that changed?

49
1

51
Q And throughout the time that Warden

2 A Mitchell Franks.

2 Murphy -- Susan Murphy was the warden, you were

3 Q So as far as you believe, he was the

3 doing the full strip searches?

4 one who implemented the change in the policy?

4 A I do believe so, yes.

5 A I guess.

5 Q And during the whole time that Warden

6 Q What do you mean you guess?

6 Jednorski was there, you were doing the full

7 A I mean, he has a boss, so -- I don't

7 strips of the men?

8 know where it came from.

8 A (Witness nods head.)

9 Q But you believe that he was the one

9 Q Is that "yes"?

10 who was the warden when this --

10 A Yes, I'm sorry.

11 A When the policy changed, yeah.

11 Q And you work with other officers in

12 Q And before that, every male arrestee

12 the same search room?

13 would go in the search room and you would strip -- 13 A Yes.

14 have them strip naked?

14 Q And they were doing the same type of

15 A Yeah.

15 searches you were doing?

16 Q And would you have them squat?

16 A Yes.

17 A Yeah.

17 Q So as far as you know, there wasn't a

18 Q Have them cough?

18 time that you were doing the full strips and the

19 A Yes.

19 guy next to you was doing just the underwear?

20 Q How were you notified that there was a 20 A No.

21 change where now, instead of stripping them naked, 21 Q I think you said you don't recall who

22 you would just have them go down to their

22 specifically told you about the change?

1 underwear?

50

52

1 A No, I don't recall.

2 A How was I notified?

2 Q Did you have any discussions with

3 Q Yes.

3 other officers about the change?

4 A I think through post orders and

4 A Probably so.

5 through word of them coming around and letting 5 Q What did you think about the change?

6 everybody know that was going to be the new

6 A Don't really agree with it.

7 policy. I'm really not sure as to how.

7 Q Why not?

8 Q Do you recall being told?

8 A Due to my years in correction, I've

9 A Yeah. I recall being told, but I

9 seen people hide stuff in their rectum, under

10 don't know when or who it came from. I don't 10 they -- you know, scrotum sac, under they arms, in

11 know.

11 they feet, taped to they feet, in they toes, so.

12 Q Do you recall reading a changed post

12 Q Now, during this period of time that

13 order?

13 you said the policy was to do a full strip down to

14 A Yeah.

14 the naked body --

15 Q When do you recall reading that?

15 A Mm-hmm.

16 A Maybe about two years ago.

16 Q -- were there occasions where an

17 Q And how long after Warden Franks took 17 arrestee would come in and you would not do the

18 over did this change occur?

18 full strip search?

19 A I have no idea.

19 A No.

20 Q But you're fairly certain that it was

20 Q You treated everybody the same?

21 sometime after Mitchell Franks took over?

21 A Yes.

22 A Yeah.

22 Q As far as you know, all the other

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DEPOSITION OF KEVIN ESTEP, JR. CONDUCTED ON THURSDAY, OCTOBER 11, 2007

14 (Pages 53 to 56)

53

55

1 search officers were doing the same as you were 1

THE WITNESS: Did I say yes?

2 doing?

2

THE COURT REPORTER: You did. No, you

3 A Yes.

3 didn't. You said "yeah."

4 Q Let me ask about the period that you

4 BY MR. DAY:

5 were doing what I'm going to call the full strip

5 Q I take a "yeah" as a "yes."

6 search.

6 Especially when combined with an up and down nod.

7

What -- how often would you find

7

Now, when you were doing the full

8 contraband as a result of the strip searches?

8 strips and finding contraband, where did you find

9 A A day or?

9 that the contraband was normally hidden?

10 Q Sure. A day.

10 A In the rectum. And under their

11 A Maybe at least two to three times a

11 scrotum sac.

12 day. Or more.

12 Q Now, when you say in the rectum, do

13 Q Did you pay any attention to, when you 13 you mean between the cheeks or actually --

14 found something, what the person had been charged 14 A Sometimes in between the cheeks and

15 with?

15 sometimes actually stuck up there. I mean, you

16 A Not really.

16 just see like something hanging out that's

17 Q And --

17 unusual.

18 A I mean, after I find it, you might

18 Q What types of contraband would you

19 look at and see what they charged with, because 19 find hidden under the -- you said the sac and the

20 you have to do -- turn stuff into the police

20 rectum area?

21 liaison, so.

21 A Drugs, cigarettes.

22 Q Is it your recollection that the

22 Q Anything else?

54

56

1 switch from Warden Murphy to Warden Franks was in 1

A Money.

2 the summer of 2005?

2 Q Anything else?

3 A I don't even recall.

3 A Cell phones. Matches, lighters.

4 Q How long has Mitchell Franks been the

4 Q Now, when arrestees make their way

5 warden?

5 into the cells, are there flammable items in the

6 A Maybe a year or two, I don't know.

6 cells?

7 Q Do you recall anything else in your

7 A Toilet paper.

8 life that was going on around the time that there

8 Q Anything else?

9 was this switch?

9 A That's all I know of, is toilet paper.

10 A No.

10 Q Are you aware of any occasions when an

11 Q Was there media attention, extra media

11 arrestee has lit fire to toilet paper?

12 attention?

12 A Yes.

13 A About the searching?

13 Q How many times?

14 Q About Central Booking and over

14 A Hundreds of times.

15 detentions and all that stuff?

15 Q And what happens when they light fire

16 A I don't know.

16 to toilet paper?

17 Q You don't remember?

17 A You just smell it. You smell it burn,

18 A No.

18 we have to re-search the cell.

19 Q Okay. Well, regardless of who was

19 Q And then what?

20 warden, you believe it was approximately two years 20 A Say that again.

21 ago that there was a change in the searches?

21 Q And then what?

22 A Yeah.

22 A They're taken to an area where they

L.A.D. REPORTING & DIGITAL VIDEOGRAPHY (202)861-3410 (800)292-4789 (301)762-8282 (703)288-0026 (410)539-3664

PLAINTIFF’S EXHIBIT 114

DEPOSITION OF OFFICER BEVERLY STEVENSON CONDUCTED ON WEDNESDAY, OCTOBER 31, 2007

1 (Pages 1 to 4)

1

3

1

IN THE UNITED STATES DISTRICT COURT

2

FOR THE DISTRICT OF MARYLAND

1 APPEARANCES: On behalf of the Plaintiffs:

2

WILLIAM "CHAZ" CLAIBORNE, ESQUIRE

CLAIBORNE LAW

3

3

717 D Street Northwest

Suite 210

4 **************************************************** 4

Washington, D.C. 20004-2813

5 ERIC JONES, et al.

(202) 824-0700 5

6

7

Plaintiffs

SEAN R. DAY, ESQUIRE

6

LAW OFFICE OF SEAN R. DAY

8505 Baltimore Avenue

8 v.

Case No.: 05-1287 CCB

7

Suite B

College Park, Maryland 20740

9 SUSAN MURPHY, et al. 10

8

(301) 220-2270

9

On behalf of Plaintiff, NAACP:

10

HILARY A. GOULD, ESQUIRE

11

Defendants.

DAVID WHARWOOD, ESQUIRE

11

GIBSON, DUNN & CRUTCHER, LLP

12

1050 Connecticut Avenue, Northwest

13 ****************************************************12

Washington, D.C. 20036-5306 (202) 887-3612

14 DEPOSITION OF OFFICER BEVERLY STEVENSON 13

15

Baltimore, Maryland

14

On behalf of Defendants:

16

Wednesday, October 31, 2007

KARL A. POTHIER, ESQUIRE

15

ASSISTANT ATTORNEY GENERAL

17

1:15 p.m.

18

MARYLAND DEPARTMENT OF PUBLIC

16

SAFETY AND CORRECTIONAL SERVICES

6776 Reisterstown Road

19

17

Suite 313

Baltimore, Maryland 21215

20 Job No.: 3-113371 21 Pages 1 - 80

18

(410) 585-3071

19

20

22 Reported by: Sheri D. Hayhurst, RPR

21

22

2
1 Deposition of OFFICER BEVERLY STEVENSON, held 1

C O N T E N T S

2 at the offices of:

2 EXAMINATION OF OFFICER BEVERLY STEVENSON:

3

L.A.D. REPORTING COMPANY

3 By Mr. Claiborne

5

4

10 North Calvert Street

4 By Mr. Day

70

5

Suite 141

5 By Mr. Claiborne

71

6

Baltimore, Maryland 21202

6 By Ms. Gould

72

7

7 By Mr. Wharwood

76

8

8 EXHIBITS:

9

9 (None offered)

10

10

11

11

12

12

13

13

14

14

15

15

16

16

17

17

18

18

19

19

20 Pursuant to agreement, before Sheri D.

20

21 Hayhurst, Registered Professional Reporter of the

21

22 state of Maryland.

22

4 PAGE

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DEPOSITION OF OFFICER BEVERLY STEVENSON CONDUCTED ON WEDNESDAY, OCTOBER 31, 2007

6 (Pages 21 to 24)

1 her charge.

21

23

1 could have been booking. It all depends on how many

2 Q What about whether or not you found

2 officers we had back there that day.

3 anything on her during the pat-down at the sallyport 3 Q And what I mean is say like you had three

4 door? Did that affect whether or not she got strip

4 female correctional officers working on a shift. Do

5 searched?

5 you believe that the other two officers would have

6 A Everybody got strip searched.

6 been strip searching the women, too? Was this just

7 Q I know you're answering my question. So, 7 something you did or was it something everybody did?

8 what you're saying is during that period of time,

8 A Well, we would pitch in.

9 every single woman that came through -- every single 9 Q What do you mean by that?

10 arrestee got strip searched regardless of charge?

10 A Like if I'm searching --

11 A Yes.

11 Q Yeah.

12 Q Okay. I understand. Now, is that the

12 A -- the other officer might say, "I'll take

13 practice you followed at the time you went to work 13 her in the strip search room."

14 in the court commissioner's office?

14 Q I see.

15 A Yes.

15 A We would help out.

16 Q So, it never changed?

16 Q So, you're probably saying this -- I just

17 A Huh-uh.

17 want to make sure I understand it.

18 Q So, let me pin down the day you went to

18 A Right.

19 the court commissioners. Basically, three years

19 Q The other officers also strip searched

20 ago; is that right?

20 every single woman that came through? It wasn't

21 A Yeah. You could say about three years 21 just your own personal practice?

22 ago.

22 A Right. Every officer that worked back

22

24

1 Q Well, I mean, I don't want to -- that's an

1 there would strip search the female that comes in

2 important question. So, I don't want to put words

2 there.

3 in your mouth.

3 Q How did you know that's what you were

4 A No. I mean, I was on and off. See, I

4 supposed to do as part of the job?

5 post various, but I wasn't working in the female 5 A That was part of the post orders, and when

6 sallyport after a certain period of time.

6 I got at Central Booking, that's how I was trained.

7 Q So, but how long ago do you think you

7 Q Okay. Did a field training officer train

8 stopped working in the female sallyport?

8 you?

9 A Oh, it's been since 05. I can tell you

9 A No. This was just an officer that was

10 that. It's been 05.

10 there longer than me when I got in and taught me

11 Q Why do you remember 05?

11 this is what I'm supposed to do.

12 A 05, because I was at the court

12 Q Do you remember that officer's name?

13 commissioner, and then I went to traffic.

13 A Oh, no. The lady up there, she's gone.

14 Q I see. So, until 05, the practice on the

14 She's gone.

15 female side was just strip search every single

15 Q Do you remember when Susan Murphy actually

16 female arrestee when she came in?

16 became the warden?

17 A Yes.

17 A I can't remember what year she came, but I

18 Q All right. Now, do you have any idea

18 was there when she was there.

19 what the other female corrections officers were

19 Q Okay. When she came, she was like an

20 doing?

20 assistant warden, right?

21 A Well, one of them could be given phone

21 A Yes.

22 calls. One could have been passing out lunch. One 22 Q But then at some point, she actually

L.A.D. REPORTING & DIGITAL VIDEOGRAPHY (202)861-3410 (800)292-4789 (301)762-8282 (703)288-0026 (410)539-3664

DEPOSITION OF OFFICER BEVERLY STEVENSON CONDUCTED ON WEDNESDAY, OCTOBER 31, 2007

7 (Pages 25 to 28)

25

27

1 became the warden. Jednowski left, and Susan Murphy 1 was conducting the strip searches?

2 became the acting warden and then the actual warden? 2 A No.

3 A Yes.

3 Q Do you believe they knew about the strip

4 Q Even if you don't remember the time, you

4 searches?

5 remember that at some point that happened, right?

5 A Yes.

6 A Yes.

6 Q Why do you say that?

7 Q Now, after Susan Murphy became the warden, 7 A Because it was in the post orders, and

8 were you still working sometimes in the female side

8 that is one of the things that they taught us, too.

9 search room?

9 Q I see. You mean your superiors taught you

10 A Every now and then.

10 to do this?

11 Q So, even after Susan Murphy came on, was

11 A Right.

12 it still the practice to strip search every single

12 Q I see. Did you ever see Susan Murphy on

13 female arrestee that came in?

13 the booking floor at any time?

14 A Yes.

14 A Yes.

15 Q Let's see kind of going up the chain of

15 Q When would you see her on the booking

16 command, your floor supervisors, sergeants, so on

16 floor?

17 and so forth -- at any time when you were working in 17 A She would come through in the mornings.

18 the female search room, did anyone of them ever say 18 Q Would she come into the sallyport?

19 anything to you about the strip searches?

19 A No. She comes through the other entrance.

20 A No.

20 Q What other entrance would that be?

21 Q Did they ever come around and say,

21 A It's another door that she comes through

22 "Officer Stevenson, you're doing searches, aren't

22 from her office down the hallway.

1 you?" Anything like that to make sure you're

26

28

1 Q I see. If she came from her office on to

2 following the practice?

2 the booking floor -- well, on to the area where you

3 A No.

3 all were booking, would she come in on the male side

4 Q Who was your floor supervisor during that

4 or the female side?

5 period of time?

5 A The male.

6 A It all depends, because we had different

6 Q And how would she typically come on to the

7 supervisors.

7 female side?

8 Q Do you remember who was your sergeant or

8 A She would have to walk through the male to

9 was that more than one person also?

9 get to the females.

10 A West. She passed.

10 Q So, she walks down the corridor?

11 Q I'm sorry.

11 A Yes.

12 A She passed.

12 Q Is that what you were talking about

13 Q Do you remember what her name was?

13 earlier?

14 A Sergeant West.

14 A Yes.

15 Q West?

15 Q Where does that corridor let out?

16 A Uh-huh.

16 A You got two different entrances. You have

17 Q All right. Did she ever come back to the

17 one entrance towards the female. You've got one

18 search room area when you were or somebody else were 18 entrance towards the male. The corridor is a long

19 conducting the strip searches?

19 hall, probably as long as this Calvert Street that

20 A No.

20 ends to the other side. Either way, you could cut

21 Q Did any of your superiors ever come back

21 through the male or the female side through the

22 to the search room area when you or somebody else

22 corridor.

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DEPOSITION OF OFFICER BEVERLY STEVENSON CONDUCTED ON WEDNESDAY, OCTOBER 31, 2007

8 (Pages 29 to 32)

1 Q So, if you came through one of these

29

31

1 then she is to take her underwear off, and she is to

2 corridors, would you pass the search room?

2 squat and cough.

3 A No. Now, if you come down A-Line

3 Q So, she's naked down to the skin?

4 Corridor, you're not passing the search room. If

4 A Now, you're talking before or after we

5 you come down the B-Line corridor -- if you're

5 stopped the strip search?

6 coming Medical Way, you're passing the search room. 6 Q Well, at some point -- yeah. Does she

7 Q Okay. Did you ever see her come out of

7 ever have to take her -- well, you said she takes

8 B-Line Corridor, go past the search room while you

8 her underwear off, right?

9 were working in that area?

9 A Yes.

10 A She has stood up in that area. I've seen

10 Q So, then at that point, she's naked down

11 her standing up in that area.

11 to the skin, right?

12 Q To just kind of watch what's going on?

12 A Yes.

13 A Uh-huh.

13 Q I see. And then while she's naked down to

14 Q Did she see the female officers take the

14 the skin, she has to squat?

15 female arrestees into the search room?

15 A And cough.

16 A No. I can't say that.

16 Q I see. Why does she have to squat and

17 Q But she was present when that was

17 cough?

18 happening?

18 A To make sure she has nothing up in her

19 A Right.

19 vagina area.

20 Q I see. To your knowledge, did she ever

20 Q What does one have to do with the other?

21 say anything to any of the officers about strip

21 Does that dislodge items that are secreted in the

22 searches?

22 vagina?

1 A No.

30

32

1 A Yes.

2 Q All right. Let's flip over to the male

2 Q I see. Let me just -- my colleague is

3 side. One final question.

3 pointing something out to me.

4 To your knowledge, is it still the practice at

4 When you were talking about a woman has to lift

5 Central Booking that every single female arrestee

5 up her bra, is that right, during the search

6 that comes through gets strip searched?

6 process?

7 A No.

7 A Well, that's why I asked you which one

8 Q Why do you say it's not the practice?

8 were you talking about. Are we talking down naked?

9 A Because they stopped it.

9 Or are you or talking about the one that where we

10 Q And when did they stop it?

10 stopped actually strip searching, and this is how we

11 A It was end of 05, they stopped the strip

11 had to search them?

12 search.

12 Q Well, I'm not sure what you mean.

13 Q Why do you say end of 05?

13 A Okay. The first when we use to strip

14 A Because it was like only two and a half

14 search, they would be naked, okay. Then when they

15 years ago when Franks said, "We would no longer be 15 stopped us from strip searching, they would have to

16 strip searching."

16 take off their clothes, and they would have their

17 Q Can you describe the strip search to me so

17 panties and the bra on. So, when we was back in 06,

18 we'll make sure that we're both talking about the

18 they would have to lift up their bra and shake it

19 same thing when we say "strip search?"

19 and then pull their panties down to their knees and

20 A Okay. When you take a lady in there,

20 cough.

21 you're asking her to take off her garment down to 21 Q So, when you say, "They lift up their

22 her bra. She is to take her bra and shake it, and

22 bra," and you kind of made this motion where it's

L.A.D. REPORTING & DIGITAL VIDEOGRAPHY (202)861-3410 (800)292-4789 (301)762-8282 (703)288-0026 (410)539-3664

PLAINTIFF’S EXHIBIT 115

DEPOSITION OF DENISE BANKS CONDUCTED ON MONDAY, NOVEMBER 5, 2007

1 (Pages 1 to 4)

1

3

1

IN THE UNITED STATES DISTRICT COURT 1

APPEARANCES

2

FOR THE DISTRICT OF MARYLAND

2

3 ----------------------------X

3 ON BEHALF OF THE PLAINTIFF JONES:

4 ERIC JONES, et al.

:

4

SEAN R. DAY, ESQUIRE

5

Plaintiffs :

5

LAW OFFICE OF SEAN R. DAY

6 v.

: 05-1287 CCB

6

8505 Baltimore Avenue

7 SUSAN MURPHY, et al. :

7

Suite B

8

Defendants :

8

College Park, Maryland 20740

9 ----------------------------X

9

(301) 220-2270

10

Deposition of DENISE BANKS

10 AND

11

Baltimore, Maryland

11

WILLIAM "CHAZ" CLAIBORNE, ESQUIRE

12

Monday, November 5, 2007

12

CLAIBORNE LAW

13

10:04 a.m.

13

717 D Street, Northwest

14

14

Suite 210

15 Job No.: 5-114052

15

Washington, D.C. 20004-2813

16 Pages 1 - 96

16

(202) 824-0700

17 Reported by: Beatriz D. Fefel, RPR

17

18

18

19

19

20

20

21

21

22

22

2

1

Deposition of DENISE BANKS held at the 1

2 offices of:

2

3

3

4

4

5

L.A.D. REPORTING COMPANY

5

6

10 North Calvert Street

6

7

The Equitable Building, Suite 141

7

8

Baltimore, Maryland 21202

8

9

(410) 539-3664

9

10

10

11

11

12

Pursuant to agreement, before Beatriz D. 12

13 Fefel, Registered Professional Reporter and Notary 13

14 Public of the State of Maryland.

14

15

15

16

16

17

17

18

18

19

19

20

20

21

21

22

22

4 A P P E A R A N C E S (C O N T I N U E D)
ON BEHALF OF THE PLAINTIFF NAACP: HILLARY A. GOULD, ESQUIRE GIBSON, DUNN & CRUTCHER, L.L.P. 1050 Connecticut Avenue, Northwest Washington, D.C. 20036-5306 (202) 955-8500
ON BEHALF OF THE DEFENDANTS: KARL A. POTHIER, ESQUIRE ASSISTANT ATTORNEY GENERAL MARYLAND DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONAL SERVICES Suite 313 6776 Reisterstown Road Baltimore, Maryland 21215 (410) 585-3071

L.A.D. REPORTING & DIGITAL VIDEOGRAPHY (202)861-3410 (800)292-4789 (301)762-8282 (703)288-0026 (410)539-3664

DEPOSITION OF DENISE BANKS CONDUCTED ON MONDAY, NOVEMBER 5, 2007

6 (Pages 21 to 24)

21

23

1 A Right. Everybody comes -- all right. Just

1 A When I first started I was always in

2 stop. Everyone comes in with an orange band --

2 females.

3 Q Okay.

3 Q Okay. Then how long did you work -- have

4 A -- everyone. So once you see a nurse, the

4 you always worked in females searches, or is that

5 orange band comes off. Pink band goes on for health 5 something you only did for a period of time and then

6 and medical, mental, like, you know, any -- have

6 stopped?

7 medication or something like that, the pink band goes 7 A Right. It's only like for a period of time,

8 on then.

8 and then you stop, you go to another post.

9 Q Okay. I got you now.

9 Q So how long were you in the female search

10

Okay. So let me ask you this question.

10 room?

11 Let's suppose that -- this orange band, does that go

11 A I could have been in there, in and out,

12 on before, or after they see the commissioner?

12 different -- I -- for work -- I'm going to say work

13 A Before.

13 week.

14 Q All right. And you were giving me these

14 Q Umh-humh.

15 posts that you go through, that the arrestees go

15 A I can be there for that whole week.

16 through. Was that for males only, or was that also

16 Q Okay.

17 for female arrestees?

17 A And then when I come back the following week

18 A Male and female.

18 I could have a different post.

19 Q All right. So apart from doing -- let's

19 Q Got you. Are you still occasionally

20 see. You were the WIP officer and then you did

20 assigned to the search room?

21 medical, took people in for their medical clearances. 21 A I haven't been in that in a while.

22 What other jobs have you held?

22 Q When was the last time you were in the

22

24

1 A Female search, heat strat.

1 search room?

2 Q Who?

2 A It could have been months. It could have

3 A Heat strat.

3 been -- maybe like -- it's been like a year, I think.

4 Q What's that?

4 Q Okay. So from the time you started up until

5 A Heat stratification. That's getting ladies

5 a year ago, were you occasionally --

6 cleared to go across the street to WDC, medically

6 A In females.

7 cleared for WDC.

7 Q -- posted to the female search room?

8 Q How come you call it heat strat?

8 A Yes.

9 A Heat stratification. That means that same

9 Q Okay. So it would -- this is 2007. So are

10 thing that goes on with the males goes on with the 10 you saying sometime in 2006 is when you -- is the last

11 females, but they going into WDC for their medical 11 time you worked in the female search room?

12 clearance. They going -- they have been committed by 12 A I think, but I'm not sure. But I think so.

13 the commissioner and they do a health assessment for 13 Q Okay. Even if you can't remember the

14 the facility over there.

14 date --

15 Q So this heat strat is only for female

15 A Umh-humh.

16 arrestees --

16 Q -- can you remember who was warden when you

17 A That's --

17 stopped working in the female search room?

18 Q -- who been ordered held?

18 A Oh. I couldn't tell you that.

19 A Who has been committed, yes.

19 Q Okay. How about assistant warden?

20 Q Okay. Now, when you worked female search -- 20 A I think Murphy was assistant warden.

21 A Yes.

21 Q Okay. Do you remember who was security

22 Q -- what periods of time did you do that?

22 chief?

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DEPOSITION OF DENISE BANKS CONDUCTED ON MONDAY, NOVEMBER 5, 2007

7 (Pages 25 to 28)

25

27

1 A Fernandez. I think Fernandez was.

1 A No.

2 Q So basically the last time you worked in the 2 Q What shift were you working when you first

3 female search room Fernandez was the security chief? 3 started?

4 A Yes.

4 A Seven p.m. to three a.m.

5 Q Okay. That just kind of helps us place it

5 Q And then how long did that last?

6 in time.

6 A Probably a month.

7 A Okay.

7 Q Okay. Didn't like that, hunh?

8 Q So from the time you first started and you

8 A No.

9 were assigned to this female search room up until the 9 Q And then after that, what shift did you go

10 last time you worked in the female search room, about 10 to?

11 how often would you be assigned to the female search 11 A Three p.m. to eleven p.m.

12 room?

12 Q How long did you stay there?

13 A It could be every day.

13 A Two years. Two years.

14 Q And then how long -- just kind of generally 14 Q And then what's --

15 speaking.

15

MR. DAY: Which years?

16 A As far as what?

16 Q Yeah. Okay. So let's see. If you started

17 Q Were you working in the search room? I

17 in 2001 --

18 mean, I know you didn't work there every day because 18 A Umh-humh.

19 you said --

19 Q -- can you remember what years you worked

20 A Right.

20 the three to eleven?

21 Q -- sometimes you worked a week --

21 A From 2001 'til -- 2001 to 2003. Either 2003

22 A See, when I say -- my workweek means we 22 or 2004 is when I stopped.

26
1 seven days on and four days off. So for that week 1

28
Q Who was the security chief when you stopped?

2 that I'm at work, I could be in the search room for 2 A When I stopped working nights and come to

3 that whole week.

3 seven to three?

4 Q I understand.

4 Q No. When you stopped doing your three to

5 A Okay.

5 eleven.

6 Q But like on average how often would you be 6 A When I stopped doing my three to eleven,

7 in the search room during any given month?

7 Merritt was the chief.

8 A I guess two or three weeks, two weeks.

8 Q Okay. And then after you -- and who was the

9 Q Okay. And when was the last time you

9 assistant warden? Do you remember that?

10 actually worked in Central Booking?

10 A I think Murphy was. I'm not sure. I think

11 A When the last time I actually worked in 11 Murphy was.

12 Central Booking?

12 Q Okay. And then after you stopped doing the

13 Q (Nodding.)

13 three to eleven, what shift did you go to?

14 A Yesterday.

14 A Seven to three.

15 Q Okay. Because some folks come in and they 15 Q That's seven a.m. to three p.m.?

16 don't work in the Central Booking floor anymore or 16 A Yes.

17 they don't --

17 Q And that's the one you're doing now, right?

18 A Oh. Yesterday.

18 A Yes.

19 Q Okay. Got you.

19 Q So from the time you started the seven a.m.

20

And what shift are you working now

20 to three p.m., that was it, that's the only shift

21 A Seven to three; seven a.m. to three p.m. 21 you've worked?

22 Q Have you always worked that shift?

22 A No. I worked like two -- I might have made

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DEPOSITION OF DENISE BANKS CONDUCTED ON MONDAY, NOVEMBER 5, 2007

12 (Pages 45 to 48)

1 A No.

45

47

1 don't have any contrabands or weapons on them. And

2 Q When was the first time you did any searches 2 then I give it back, give their clothes back.

3 of females?

3 Q So during that period of time the women got

4 A When I went to the eight -- three to eleven 4 stripped down to the skin; is that right?

5 and eleven A to seven P.

5 A Yes.

6 Q Okay. How about on the three p.m. to eleven 6 Q That was just every female arrestee that

7 p.m.?

7 came through got stripped down to the skin?

8 A Yes.

8 A That I did, yes.

9 Q So during that period of time did you ever 9 Q So it didn't matter what the charge was,

10 work in the female Sallyport?

10 right?

11 A Yes.

11 A Right.

12 Q And during that period of time did you ever 12 Q And it didn't matter whether anything had

13 work on the male Sallyport?

13 been found on her in the Sallyport, right?

14 A Yes.

14 A Right.

15 Q All right. So when you worked on the female 15 Q All right. Now, is this what Blackmon told

16 Sallyport, you were also in the search room, female 16 you to do, to strip every woman down to her skin?

17 search room; is that right?

17 A Right, to make sure they didn't have

18 A Yes.

18 anything on them.

19 Q All right. So when you first started

19 Q But, I mean, that's how Blackmon taught you

20 working in the Sallyport in the female search room, 20 to do it, right?

21 who taught you how to do the job?

21 A Right.

22 A Who taught me how to do my job?

22 Q Okay. You know, just like when you're

1 Q Right. Showed you what to do.

46

48

1 socializing with anybody, or even at work, did this

2 A I'm trying to remember who was the officer

2 topic of the strip searches in the search room ever

3 at that time that showed me. I think it was Officer

3 come up? Did you all ever talk about, hey, I found

4 Blackmon.

4 this, or I don't like this part of the job, or we need

5 Q Is that B-L-A-C-K-M-O-N?

5 this for our safety? Did anything like that ever come

6 A Yes.

6 up?

7 Q She's still working there now, right?

7 A Something like off work or --

8 A Yes.

8 Q Yeah, at any time.

9 Q Do you remember her first name?

9 A Any --

10 A I don't know Officer Blackmon's first name. 10 Q What I'm wondering is this, really. What

11 Q All right. What did she tell you about how

11 I'm leading up to is did you believe that during this

12 to -- what to do in the search room?

12 period of time your co-workers who were working in the

13 A When -- when the females come in, they get a 13 search room would also take the women into the search

14 brief pat-down. Before they -- when they take their 14 room and give them a strip search?

15 belongings off, they have a regular, valuable, and

15 A Do I think they did their job?

16 U. S. currency, which is their money. After we take 16 Q Okay. Well, let's put it that way. I'm

17 all of their properties out of their pockets and on

17 just -- what I'm kind of -- let me explain it this

18 them they will go into a search room. Take them in 18 way. I'm just trying to find out if this is just

19 the search room and they would get stripped naked 19 something you did or if this is what everybody did

20 down, so they're bare, you know, bare bodies, and they 20 with the female arrestees.

21 have to squat and cough. And then I check all of

21 A Right. See, that's the thing, I can only

22 their clothing and give it back, making sure that they 22 say what I did.

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DEPOSITION OF DENISE BANKS CONDUCTED ON MONDAY, NOVEMBER 5, 2007

13 (Pages 49 to 52)

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51

1 Q Okay.

1 A Yes.

2 A So I can't justify, like when they go behind 2 Q To your knowledge, you know, when you were

3 closed doors, what they did.

3 working the seven a.m. to three p.m., were the other

4 Q Right.

4 female correction officers giving strip searches to

5 A I'm doing it to safeguard it for me --

5 the female arrestees?

6 Q I understand.

6 A To my knowledge, I think they were, yes.

7 A -- to make sure nobody -- because people do 7 Q Now, at any given time when you were working

8 hide things in provocative places.

8 in the female search room, how many other of your

9 Q Okay. Is there any -- you said were they

9 colleagues would be assigned to work in the search

10 doing their job. Is there any reason to believe that

10 room?

11 when you saw your co-workers take a woman into the 11 A That's -- that's a one-man post. So it only

12 search room, is there any reason to believe they were 12 be like one person.

13 doing something else besides strip searching them in 13 Q Okay.

14 there?

14 A Only, only -- I only get assistance if I get

15 A It could be because at a later date, you

15 an overflow of females coming in at one time.

16 know, at a later date throughout the day you can -- a 16 Q Okay.

17 person would have contraband on them.

17 A Then I will say I need somebody to help me,

18 Q So you take them in and do a strip search,

18 you know, search.

19 right?

19 Q I see.

20 A You search them again.

20 A That person would stay out front with them,

21 Q Strip search. So it seems to me that's the

21 they be watch -- they take all their belongings or

22 only reason anybody went to the search room during 22 whatever, and give me the bag and them, and we go in

1 this period of time at least, was to get a strip

50

52

1 the search room and I'll strip search them down, take

2 search?

2 their clothes, check their clothes to make sure, you

3 A Right.

3 know, nothing was in it or on them, and give it back

4 Q This practice of making, making all of the 4 to them, tell them to come get dressed and step back

5 female arrestees go into the search room, take their 5 outside.

6 clothes off and do the squat and cough, how long did 6 Q All right. What would you do if at any time

7 that practice continue? Or is it still going on

7 during the process, you know, when a female arrestee

8 today?

8 came in at the Sallyport until she got to the booking

9

A I think it's still going on today. I'm not

9 window, what would you do if you found illegal drugs

10 sure.

10 on that woman?

11 Q Well, let's kind of go this way.

11 A We have to notify the police liaison to call

12 A Excuse me.

12 the officer back to say these drugs was found on this

13 Q I'm sorry. That's okay. That's me.

13 person, and you do a copy on our little copy machine

14

The last time you worked in the search room 14 and send it to them.

15 was about a year ago, right?

15 Q A copy of what?

16 A Yes.

16 A Of the drugs on a piece of paper, and send

17 Q So the last time you worked in the search 17 them the drugs and a copy of the paper to them down to

18 room, were you still giving the strip searches to all 18 the liaisons.

19 the females?

19 Q A copy of what paper?

20 A I did, yes.

20 A All right. Like say this was drugs, illegal

21 Q And so at that time you were on the seven 21 drugs.

22 a.m. to three p.m.?

22 Q Right.

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69

71

1 Q Okay. Now, how about when you switched over 1 A I searched -- I stripped down bare.

2 from seven a.m. to three p.m., did you see the same 2 Q Okay. So you take the woman into --

3 thing?

3 A Went into the search room.

4 A Yes.

4 Q And then you take all her clothes off?

5 Q So then based on your knowledge, as far as

5 A And I take all her clothes off and I

6 you know, from the time you started your three p.m. to 6 searched all her belongings.

7 eleven p.m. shift and then up through your working 7 Q All right. So you search her naked, down to

8 your seven a.m. to three p.m. shift, you believe that 8 the skin?

9 the male officers were strip searching all of the male 9 A Yes.

10 arrestees?

10 Q And do you -- do the -- do you then tell the

11

MR. POTHIER: Objection to form.

11 female arrestees to squat and cough or anything like

12 A Yes.

12 that?

13 Q Did you ever go to the lineup or the roll

13 A Yes.

14 call when you were working over in Central Booking? 14 Q Why do you tell them to squat and cough?

15 A Yes.

15 A Because they could have -- that's what I

16 Q Did any warden ever come in there and say, 16 meant by provocative places.

17 look, from now on we're going to change the way we do 17 Q Okay.

18 our strip searches?

18 A They could have anything stored up in their

19 A Not my knowledge, no.

19 anal area or their vagina. So if they cough, it could

20 Q How about -- do you know what a post order 20 come out.

21 is?

21 Q I see. Have you seen that happen before,

22 A Yes.

22 somebody coughs and something comes out of a

70

72

1 Q Did any post orders ever come out and change 1 provocative area?

2 any of the strip search practices?

2 A Yes. But it wouldn't be no contraband.

3 A Not that I know of.

3 Q What would it be?

4 Q Did you ever hear anybody saying, okay, now 4 A Toilet tissue from them - excuse my

5 we're going to strip search the males just down to

5 language - being on their menstrual cycle.

6 their last layer of clothing, instead of strip

6 Q What do you all do with the -- when you find

7 searching them all the way down to their skin?

7 something like that? Do you dispose of it, or --

8 A I might have heard that, but I just can't

8 A What?

9 like recall exactly when.

9 Q Like a sanitary napkin or something like

10 Q Okay. When was the last time you were

10 that.

11 actually in the female search room doing a search on a 11 A Yes, it's disposed of, and give them a fresh

12 female?

12 one, or give them a tampon.

13 A It's been a minute. This could have been -- 13 Q Apart from that, if you find -- you know,

14 what -- I couldn't possibly -- it could have been last 14 when the female does her squat and cough, have you

15 year. I'm not sure.

15 ever found drugs as a result of that squat and cough

16 Q Okay. How many times last year did you work 16 search?

17 in the female search room?

17 A No, I haven't.

18 A I used to work it all the time.

18 Q How about weapons?

19 Q Okay. And can you just give me a brief

19 A No.

20 description of the search process that you used, you 20 Q And why do you all make them do the squat

21 know, this last time when you worked in -- the last 21 and cough part?

22 times when you worked in the female search room? 22 A For me that's just a precaution that I take.

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PLAINTIFF’S EXHIBIT 117

DEPOSITION OF LOLA NOEL JONES CONDUCTED ON MONDAY, NOVEMBER 5, 2007

1 (Pages 1 to 4)

1

3

1

IN THE UNITED STATES DISTRICT COURT 1

APPEARANCES

2

FOR THE DISTRICT OF MARYLAND

2

3 ----------------------------X

3 ON BEHALF OF THE PLAINTIFF JONES:

4 ERIC JONES, et al.

:

4

SEAN R. DAY, ESQUIRE

5

Plaintiffs :

5

LAW OFFICE OF SEAN R. DAY

6 v.

: 05-1287 CCB

6

8505 Baltimore Avenue

7 SUSAN MURPHY, et al. :

7

Suite B

8

Defendants :

8

College Park, Maryland 20740

9 ----------------------------X

9

(301) 220-2270

10

Deposition of LOLA NOEL JONES

10 AND

11

Baltimore, Maryland

11

WILLIAM "CHAZ" CLAIBORNE, ESQUIRE

12

Monday, November 5, 2007

12

CLAIBORNE LAW

13

11:38 a.m.

13

717 D Street, Northwest

14

14

Suite 210

15 Job No.: 5-114052

15

Washington, D.C. 20004-2813

16 Pages 1 - 100

16

(202) 824-0700

17 Reported by: Beatriz D. Fefel, RPR

17

18

18

19

19

20

20

21

21

22

22

2

1

Deposition of LOLA NOEL JONES, held at the 1

2 offices of:

2

3

3

4

4

5

L.A.D. REPORTING COMPANY

5

6

10 North Calvert Street

6

7

The Equitable Building, Suite 141

7

8

Baltimore, Maryland 21202

8

9

(410) 539-3664

9

10

10

11

11

12

Pursuant to agreement, before Beatriz D.

12

13 Fefel, Registered Professional Reporter and Notary 13

14 Public of the State of Maryland.

14

15

15

16

16

17

17

18

18

19

19

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20

21

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22

22

4 A P P E A R A N C E S (C O N T I N U E D)
ON BEHALF OF THE PLAINTIFF NAACP: HILLARY A. GOULD, ESQUIRE GIBSON, DUNN & CRUTCHER, L.L.P. 1050 Connecticut Avenue, Northwest Washington, D.C. 20036-5306 (202) 955-8500
ON BEHALF OF THE DEFENDANTS: KARL A. POTHIER, ESQUIRE ASSISTANT ATTORNEY GENERAL MARYLAND DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONAL SERVICES Suite 313 6776 Reisterstown Road Baltimore, Maryland 21215 (410) 585-3071

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4 (Pages 13 to 16)

1 A Yes.

13

15

1 Q Umh-humh.

2 Q Okay. So when you've been booking --

2 A Now that -- let me just finish the process

3 working the booking process area, did you ever work 3 before I move on to something else. I don't want to

4 the Sallyport search room post?

4 confuse myself.

5 A Are you talking about the male Sallyport, or 5 Q Yeah.

6 the female? You got to be talking about the female 6 A So we have these supplies on our desk, on

7 side.

7 the table, and you gonna -- the officer that dropped

8 Q Yeah. But --

8 them off -- usually -- well, now they have these flex

9 A Yes, I have.

9 PlastiCuffs, I don't think they had those in the

10 Q So, now, the same person does both of those 10 beginning, when I started. They have those

11 positions, right? The female officer meets the female 11 plasticuffs that you -- we have a cutter that -- a

12 arrestee at the Sallyport door --

12 wire cutter --

13 A Yeah.

13 Q Umh-humh.

14 Q -- and then ultimately brings her into the

14 A -- or a plastic piece that cuts plastic, we

15 search room?

15 cut those plastic off. If they have metal handcuffs,

16 A Not exactly in that order, but yeah.

16 the officers usually takes them off the individual.

17 Q Can you tell me how it works, then?

17

And we inventory their property. Like if

18 A Well, I was trained one way in the

18 they have watches, they take their jewelry off and we

19 beginning, when I initially came over there, then 19 secure it in a property bag. If they have a coat, a

20 later on I was trained another way to do things, you 20 winter coat, the winter coat goes -- we search the

21 know.

21 pockets, pat the pockets down, or whatever they have,

22 Q Well, let's talk about the first time you

22 pat the pockets down on their coat, if nothing's in

1 got trained. What did they train you?

14

16

1 it, then it curled up in a trash bag. And practically

2 A The first time I was trained -- I mean, I

2 everything they have is checked before you put it in a

3 was trained under a sergeant, Sergeant Sabrina West. 3 bag, before you bag it up for the officer that's going

4 She no longer works there, though. I was trained for 4 to be doing the booking. Because booking is like --

5 you to pat the arrestee down at the door, before you 5 the booking process is like typing in the office, but

6 even let them in.

6 you gonna --

7 Q That's at the Sallyport door?

7 Q Does the same officer do the --

8 A Right. When a police officer is presenting

8 A No, it's a different officer.

9 his arrestee to you, you have to pat him down, or her, 9 Q Who does the typing?

10 because I have worked the male and I have worked the 10 A It's a different officer that does the

11 female door. Once you pat the person down, they come 11 inventory of the property. I mean, that types it in.

12 into the institution, and you have a desk that sits up 12 Q Right.

13 against the wall where you have your plastic bags,

13 A Anyway, once you've done that, you're going

14 like a garbage bag, you have small ones, you have

14 to take the individual into the search room. There's

15 large ones, you have a blue property bag that secures 15 a search room where you were trained to take the

16 their valuables that you can't see, like if they have

16 arrestee in there. This is in the beginning when I

17 cash, watches, jewelry, it goes into this blue bag.

17 first started working in the booking area. You're

18 You going to pat -- after you pat -- frisk the person 18 told to tell the individual to strip down to nothing

19 down at the door, you bring them to your table. They 19 basically. Well, I -- in my process, I was trained

20 still probably gonna have handcuffs on. Well, he -- 20 one way, but I would do it a different way because I

21 yeah. Well, that's, that's what we do. That's what I 21 didn't feel comfortable that -- you know, to tell

22 used to do when I first got there.

22 people to do that. So, you know, this is -- when I

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5 (Pages 17 to 20)

17

19

1 had to do it, I would have the person go in there, in 1 while they there in the holding cell. Like we deal

2 the search room and unbutton their shirt, or if they 2 with a lot of -- you do have prostitutes that come

3 have a pullover shirt, just to lift their shirt up,

3 through the jail, and they -- I'm going to say -- I

4 and then loosen their bra and flip their bra up, lift 4 don't -- maybe -- hold it. Sorry. Okay. You have --

5 their breasts up so that I could see that you don't

5 Q What? No. What were you going to say?

6 have -- you're not hiding a weapon.

6

MR. DAY: You can be honest.

7

Okay. You still have your pants on, you

7 Q I mean, we've all been doing this.

8 still have your shirt on, you just lifted it up. When 8 A Okay. You have --

9 you get finished the top body search, they still have 9 Q You're not --

10 their shirt on, I ask them to take their pants down to 10 A -- a prostitute --

11 their knees, take their underwear down to their knees, 11 Q -- the first person --

12 and they have to bend over and cough.

12 A -- that comes --

13 Q I understand.

13 Q -- in here.

14 A And that's the search in the search room.

14 A -- in through the jail, right, and basically

15 Q Now, when you're talking about the top body 15 I already know that you are one --

16 search at this time --

16 Q Right.

17 A Umh-humh.

17 A -- because of the way you're dressed. The

18 Q -- would you actually view, look at the

18 odor of your body is -- the odor's not good. Sometime

19 women's naked breasts?

19 I may have to get a face mask because the odor's

20 A Would I actually view, look at them?

20 not -- is -- the odor is -- the odor is so bad, you

21 Q Right. When they flipped up the bra, could

21 don't -- I don't want to be in that one room with you.

22 you see --

22 So I'm going to -- sometimes I have to get a mask from

18

20

1 A You have to look underneath. When women

1 the nurse.

2 have -- well, when you're well-endowed, and once

2

So those women, they put different types of

3 you've taken your shirt off and flipped the bra up,

3 articles in their body cavities, and we have searched

4 sometime women store stuff underneath of here. So you 4 women and they have come out with cigarette lighters,

5 do have to ask them to lift it, and once they lift it,

5 needles, all of that stuff, in the beginning. That

6 they put it back down and fix their clothes.

6 was in the beginning when I first started working the

7 Q I see. I see you making a motion. That's

7 booking area. We used to find stuff like that.

8 not going to -- the court reporter can't get the

8 Q So when you first started, that was when

9 motions, so that's why I'm asking the question.

9 Giles was the chief and Jednorski was the warden?

10 A Okay. Yeah.

10 A I believe so, yeah.

11 Q When you do those flipping motions, that

11 Q Now, back during that period when you were

12 means you were able to see with your eyes the women's 12 doing here's-how-they-trained-you-to-do-it-first, did

13 breasts?

13 you -- this search process as you've described it, did

14 A Basically, yeah.

14 every single female arrestee have to undergo it?

15 Q Okay. That's just all I wanted to cover.

15 A Yes, they wanted every single female to

16

And you'd ask the lady if she was well-

16 undergo it. And, you know, I went to a supervisor

17 endowed to lift up her breasts to see if there was

17 because I had a problem with that, I really did. But

18 anything under there?

18 it was like nobody gets discriminated, everybody,

19 A Yeah. Because a lot of times you dealing

19 everybody has to get done. I -- and I was like, you

20 with -- you have to do this because you dealing with

20 know, to my supervisor, well, why is it that somebody

21 people that try to be -- try to outslick you, or try

21 that just come in here on a traffic, like somebody

22 to bring drugs, try to have drugs there while they --

22 didn't know they had a suspended license but you

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6 (Pages 21 to 24)

21

23

1 locking them up for their suspended license, you know, 1 underneath of her.

2 they may have moved from one address to another and 2 Q How about any of the others? You mentioned

3 didn't know that their -- or they missed the court

3 several supervisors. Who were the other part of the

4 date or something, you know. I mean, just sometimes 4 several?

5 regular everyday people that you -- say it could be me 5 A Well, there's not too many supervisors that

6 that, that -- you know, and I was -- you know, I would 6 I talked to, because I'm not the supervisor's pet. So

7 have a problem with why do you have to house the

7 there's not too many supervisors I could talk to.

8 murderers with the people that just come to -- that

8 Q Do you remember their names?

9 just had a traffic ticket or DUI. Everybody is not a

9 A Did I talk to other supervisors about that

10 career criminal like everybody else, you know. I had 10 problem? Probably, but, you know, it just went

11 a problem, I still do have a problem. I'm trying to

11 overtop of their head, you know, and they never came

12 find a new job. I still have a problem with why do

12 back with any feedback. So it really don't make sense

13 you house these people that's just here for a traffic

13 to just even bring their name up.

14 offense, why do you have to house them with the

14 Q Yeah. I mean, we would like to know their

15 rapists and the murderers. I still have a problem

15 names. How about Childs? Did you go complain about

16 with that. I don't like that, I really don't. And I,

16 this to Childs?

17 I -- sometimes there are certain things to -- I mean, 17 A Yeah, I probably did. I probably said

18 you all recording me, I can't say. But anyway.

18 something to Jednorski, too.

19 Q That's okay. I mean, what you said here is,

19 Q What would you tell --

20 it's recorded, but here's your -- well, what's on your

20 A They didn't care. They didn't care. They

21 mind? Just get it off your mind.

21 was the big head honchos.

22

MR. POTHIER: Well, just answer the

22 Q Right.

1 questions.

22

24

1 A They really didn't care. Because I'm the

2 A I'm going to answer your questions.

2 low man down on the totem pole, I'm the one that had

3 Q Sure.

3 to do these things. This was in my post orders for me

4 A But like I said, I'm waiting for the next

4 to do, and this is what I did.

5 answer -- next question.

5 Q I understand. I understand completely.

6 Q Okay. Who was the supervisor that you

6

So what was Jednorski's reaction when you

7 talked to about this?

7 told him about these strip searches?

8 A Several of us spoke to the sergeant that I

8 A Well, if the strip searches aren't done,

9 trained under, Sergeant Sabrina West. She said,

9 then weapons and stuff come into the jail, you know.

10 Jones, that's just the way it is, you know; you know, 10 And, you know, since, since the strip searches have,

11 we don't have the higher-up command of chain stuff. 11 you know, ceased, the complete clothes off like they

12 So she just used to tell me that's just the way it is. 12 supposed to be done, you know, stuff come in the jail.

13 Q Did she tell you that's the way the warden

13 Some women -- some lady came in there and tried to

14 wants it so that's the way we have to do it?

14 commit suicide. Where she had the razor blades or how

15

MR. POTHIER: Objection.

15 she got them in the jail -- she was still on the first

16 A Kind of. Sort of, yeah. And then she will

16 floor in the booking process, in between the area we

17 say how -- that's how it is in the post orders, she

17 put females and where you see the commissioner in the

18 would say that, too.

18 pretrial area, she tried to kill herself with a razor

19 Q How often did you talk to Sergeant West

19 blade. I don't know if she had them in her mouth or

20 about this? Was this a running thing where you

20 she had them in a body cavity.

21 were --

21

Well, usually we ask to look in the -- I ask

22 A It was a regular thing, because I trained

22 to look in a person's mouth, too, as part of my

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7 (Pages 25 to 28)

25

27

1 search, lift your tongue up, look in the mouth. Even 1 she was the assistant warden?

2 I ask the in -- I ask the arrestee to take their own

2 A Probably.

3 fingers and go through their own hair. Sometimes I -- 3 Q What was her kind of reaction?

4 sometimes if it looks like they have too much hair,

4 A The same thing that you hear from -- the

5 I'll put gloves on -- well, I'll usually have gloves,

5 same thing that was said, it's part of the process,

6 but sometimes I'll take them off once my hand's wet. 6 you still have to do it.

7 I'll put my hand through an individual's hair

7 Q Right. Did her attitude change after she

8 sometimes, but usually I try to get them to do it

8 became the warden?

9 first, before I do it. That's the people with long

9 A I don't think so.

10 hair that you can hide stuff in.

10 Q Did you talk to her about this after she

11 Q Right. Now, when you talked to Jednorski,

11 became the warden?

12 do you remember when that was? Was that when you 12 A No.

13 first got there, or was that also like a running

13 Q How about your -- I'm sorry.

14 thing, whenever you saw him you'd complain about it? 14 A This is one thing.

15 A Sometimes they would walk the floor, you

15 Q Yeah.

16 know, and let you talk to them freely, openly, if

16 A All right? Since I've been working there.

17 you -- if you -- if where we worked is -- you're not 17 You can't go to them for certain things because it

18 busy at that particular time when they come through. 18 gets pushed under the rug. So you just learn how

19 Q Who is "they"? You mean the wardens?

19 to just -- once you said something one time and time

20 A Yeah --

20 has passed, you learn not to go back, especially to

21 Q How about --

21 that same person you said it to.

22 A -- the warden.

22 Q Right.

26

28

1 Q -- Murphy? She was assistant warden back

1 A Because -- ask your next question.

2 then, right?

2 Q Okay. How about your colleagues, did you

3 A Yeah.

3 ever tell your colleagues that you didn't feel

4 Q Was she already the assistant warden when

4 comfortable?

5 you went over to the booking process part of Central 5 A Sure.

6 Booking?

6 Q What did they say?

7 A No.

7 A It's job security, we got to do it.

8 Q So --

8 Q Who did you talk to?

9 A She came later.

9 A We all talk among each other.

10 Q I mean, that's like -- I'm not talking about

10 Q The -- you mean --

11 when she became warden. How about when she came to 11 A My co-workers.

12 the facility? She came to the facility after you

12 Q -- the correctional officers?

13 started working in the search room part of the booking 13 A I'm not going to name names. My co-workers,

14 area --

14 everybody that I work around. I don't want to name

15 A Right.

15 names.

16 Q -- right?

16 Q Well --

17 A Right.

17 A Too many of them to name. And then I really

18 Q Do you remember how long you were working in 18 don't want to name them because -- I want to get off

19 the search -- you know, the booking process area

19 the topic or get off the subject. I don't want to.

20 before Murphy came to Central Booking?

20 Q Well --

21 A Probably for several years, probably.

21 A If you -- if -- you need me to name some

22 Q Did you ever talk to Murphy about this when 22 names?

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41

43

1 She's no longer here now, she passed away a few

1 down to their knees; is that right?

2 months, a month or so. She passed away not that long 2

MR. POTHIER: Objection. She hasn't

3 ago.

3 testified to that.

4 Q Okay.

4

MR. CLAIBORNE: I don't know.

5 A I'm trying to think.

5 BY MR. CLAIBORNE:

6 Q Did she work there until she passed?

6 Q That's what I thought you were saying,

7 A Basically.

7 because that's the way you said you did it.

8 Q Okay. But we know it was after Jednorski

8 A Now, ask the question again.

9 left, right, that the new training came in?

9 Q Yeah. In the new training, what do they

10 A I'm not -- I can't be sure. I can't be sure

10 tell you to do with respect to searching the females?

11 about that. I can't say yes and I can't say no on

11 A With respect to the search is never at any

12 that because -- memory doesn't really serve me correct 12 time would the female have all of their clothes off,

13 on the correct times and dates, but I can tell you

13 basically, that's what I was trained the second time

14 that it happened, but I really can't explain exactly

14 around.

15 what year. Because you not going to ask me to recall 15 Q Okay.

16 something five years ago, I'm going to say I have no

16 A And as I stated before, when women go into

17 knowledge, because I don't. I know what happened, but 17 the search area to be searched, you could ask the

18 I can't give you no specifics on the date.

18 woman to even take off their T-shirt or blouse,

19 Q Well, let's think about it. You complained

19 whatever they may have on, and they still have their

20 to Murphy about it, right?

20 underwear on, they still have their pants on, they

21 A Probably.

21 still have their shoes and socks on, and then you can

22 Q All right. Now, so do they announce the

22 have them -- they don't even have to loosen their bra

42

44

1 change in the strip search practice at the roll call?

1 if they don't want to. Flip their bra up so that you

2 A If they didn't do that at roll call, they

2 can see that they are not storing weapons.

3 did it once you was in that particular area that you 3 Q When you say flip the bra, do you mean so

4 was working that day, like the females.

4 that your eyes can look at their breasts?

5 Q Okay. So who -- what did they tell you when 5 A Not that I really wanted to.

6 you got told?

6 Q I know. But I'm just talking about --

7 A Basically that the females wouldn't be

7 A Please.

8 taking all their clothes off at once.

8 Q I'm not saying that. I'm just talking about

9 Q So what was --

9 for the searches, you'd have to do a visual

10 A Just -- just the way I was telling you that 10 examination of the breasts?

11 I liked -- that I preferred to do it. Maybe I was 11 A Basically, yeah. Not that I really wanted

12 told that way, I'm not sure, because I didn't really 12 to.

13 like the taking-all-the-clothes-off approach.

13 Q Okay. Did you have to tell the women to

14 Q So you talked about two training periods. 14 move their breasts in any way, lift them up or

15 The first way you got trained was the females had to 15 anything?

16 take off every article of clothing down to the naked 16 A Only for those women that were well endowed,

17 skin?

17 where their breasts -- and I'm not going to say sag.

18 A Basically, yeah.

18 Where they came down to where it was like a pocket

19 Q Squat and cough?

19 underneath of here (indicating), and you have to lift

20 A Yeah.

20 it to see if something is stored there. Those, yeah,

21 Q Okay. Now, the new training was that the 21 just them. But if somebody just -- I mean -- well, I

22 females had to take their pants and their underwear 22 don't want to use myself. But some women, they may

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12 (Pages 45 to 48)

45

47

1 not have to do that, lift that thing -- lift your --

1 instructed you to do?

2 lift them up a little, some women don't have to do 2 A Yeah, I guess so. It wasn't comfortable. I

3 that at all.

3 didn't want to do it, but it was job security.

4 Q Okay. Did you ever find anything as a

4 Q Okay. Now, this is kind of a colloquial

5 result of --

5 term, but did the females have to spread their butt

6 A Of searching that area?

6 cheeks as part of the search?

7 Q Yeah.

7 A Some officers told them to do that, but I

8 A Cigarette lighters and needles, yes.

8 didn't.

9 Q Okay. So after you examined the women's 9 Q Okay. How do you know some told them to do

10 breasts, then the women put their top clothes back on? 10 that?

11 A I never touched them. Please.

11 A Because if I'm, like I just told you, in the

12 Q No. I said examined. Visually examined is 12 area where you do the searches, you may be standing

13 what I mean.

13 beside one officer -- sometime we have like five

14 A Yeah. After they done that, they can put 14 females come in the door at one time, so you may have

15 their bra back on.

15 two officers searching sometimes. Well, a long time

16 Q Okay. Then they put their shirt back on?

16 ago you would used to do that. And you may hear the

17 A Usually I don't tell them to take their

17 officer say spread your cheeks.

18 shirt off.

18 Q Got you. Okay.

19 Q Just lift their shirt up?

19

Now, when was the last time you worked in a

20 A Basically, yes.

20 search room?

21 Q Now, that's your top search. So when you're 21 A Within the last thirty days I have.

22 done with your top search, you start on your bottom 22 Q And so are you still conducting this same

46

48

1 body search, right?

1 type of search?

2 A Yeah.

2 A Yup.

3 Q Bottom body search. Okay. With the new

3 Q So you make every woman take down her --

4 training, what did they tell you to do with your new

4 well, pull her -- she's got to pull her shirt up and

5 training?

5 then pull her bra up, you do a visual examination --

6 A Like I said before, they're not taking their

6 A Yes.

7 clothes completely off. They're dropping their pants 7 Q -- of her breasts?

8 to their knees -- or, really, they only have to

8 A Yes.

9 drop -- or you have to take your pants down at least 9 Q And then after she puts her shirt back

10 to your knees, and your underwear, and then you have 10 together, you make them take down their pants and take

11 to bend over, squat and cough.

11 down their panties?

12 Q Do you know what I mean when I say visual

12 A Yeah.

13 examination, where you look at somebody? I'm not

13 Q And then you do the visual examination?

14 talking about touching them. I'm just talking about

14 A Yeah.

15 when you -- like here's a visual examination of this

15 Q Okay. Front and back?

16 pen, I'm looking at it.

16 A No, not front and back. Because she is

17 A Umh-humh.

17 turned -- yeah, I guess you could say. Because when

18 Q That's really what I mean, look at it. Did

18 she goes to -- she have to turn around -- she's

19 you have to look at the women's vaginas after they

19 already turned around looking at me. So when I

20 took their pants and underwear down?

20 instruct her what to do, she turns around. So, yeah,

21 A Yeah.

21 I guess you could say front and back.

22 Q Okay. So that's what your superiors

22 Q Based on what you hear people say seeing

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13 (Pages 49 to 52)

1 other people, are the other female officers doing

49
1

51
A This gentleman right here (indicating).

2 these same types of searches?

2 Q Mr. Pothier?

3 A Yeah. I have some officers that tell

3 A He got a funny name. That's why I said

4 them -- well, yeah. They may not do it the way --

4 "this gentleman."

5 some of them are still telling them to take all their 5 Q Pothier?

6 clothes off, yes, some officers are still doing it

6

MR. POTHIER: Something like that.

7 that way. Yes, they are. I can't -- only name one in 7

MR. CLAIBORNE: It's French or something

8 particular that I know that really does that, and that 8 like that. It's pretty common where I'm from.

9 was the officer that just left, and I can't tell you

9 BY MR. CLAIBORNE:

10 nobody else. But I know that she said -- she told -- 10 Q All right. Who else have you seen, you

11 she said that's the way she still does it.

11 know, who -- other corrections officers have you seen

12 Q What's her name?

12 down there talking about this?

13 A Officer Banks.

13 A What, our thing today?

14 Q When did she tell you that's the way she

14 Q Yes. Just the strip search practice. I

15 still does it?

15 mean, like jurors always talk about the lawyers, they

16 A When we met with him on that last occasion, 16 say that lawyer asked me this question, that lawyer

17 last Thursday or Friday, I went for my job. When I 17 asked me that question.

18 heard her make the statement in front of him and the 18 A We talked about this, you know, just --

19 other officer, too, Officer Sharpe, that's when she 19 don't nobody like to do it. Who want to look at

20 said it. I may not have actually been in the room 20 another person body part? I know I don't. But I'm

21 with her when she done it, but she said it, that's

21 the single head of my household and that's the only

22 what she do.

22 way my bills get paid, if I have a job. So if you

1 Q Who is Officer Sharpe?

50

52

1 want to call it job security, or whatever you want to

2 A Officer Sharpe is the next officer that's

2 call it, I just try to do my job when I'm at work. I

3 coming to meet with you at two o'clock.

3 try to do my job to the best of my ability.

4 Q When did you talk to Sharpe?

4 Q Do you know what grouse means, when people

5 A I didn't talk to her. You mean when did

5 grouse? It's kind of like complaining.

6 I -- we all know that we suppose to meet with you, but 6 A Yeah, I guess.

7 we don't know what each other is talking about or what 7 Q All right. Well, so sometimes -- it sounds

8 each other said.

8 like sometimes the other corrections officers will

9 Q Right.

9 complain about having to do these searches.

10 A What I talk to you about is none of her

10 A Griping about it, yeah.

11 business. What she talk to you about is none of my 11 Q Gripe, that's a good word. So the other

12 business. If she choose to tell me, that's fine. But

12 officers gripe because they have to strip search the

13 I'm not the type of officer that gonna share what I've 13 female arrestees?

14 sat here and said to you with her. She may find out 14 A Yeah, I guess so. Nobody wants to do that.

15 in court or something, but I'm not -- I don't -- they 15 That's a job that nobody don't want to do. Some

16 are not my friends, put it like that. They are

16 people don't mind to do it, doing it, but -- some

17 not my -- I don't see those people when I leave my

17 officers don't mind. It's like they get a kick out of

18 job. I don't hang with them uptown. I don't go to

18 it or something. But I don't, I don't like to do it.

19 movies with them. Our kids don't hang out or nothing. 19 Q But as far as you know, everybody's still

20 We're just co-workers, at work.

20 doing it to up to the present, all the female officers

21 Q Who else was present when you and Sharpe and 21 are still strip searching all the female arrestees?

22 Banks were there?

22 A To my knowledge.

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PLAINTIFF’S EXHIBIT 121

DECLARATION OF BARRETT S. LITT I, BARRETT S. LITT, declare: 1. I am a partner in the law firm of Litt, Estuar, Harrison & Kitson, LLP. For the seven years before the formation of my current firm, I was the principal in the law firm of Litt & Associates, Inc., in which the partners in my current firm were trained. From September 1, 1991 to May 1, 1997, when my then partner left the law firm to become Deputy General Counsel for Civil Rights at HUD, I was a partner at the firm of Litt & Marquez. For the seven years prior to that, I was a partner in the firm of Litt & Stormer, Inc. The facts set forth herein are within my personal knowledge or knowledge gained from review of the pertinent documents. If called upon, I could and would testify to those facts in a court of law. 2. This declaration is submitted in support of Plaintiffs’ Motion for Class Certification. 3. I am an attorney duly licensed to practice in the State of California and in the Central District of California. I graduated from the University of California at Berkeley in 1966, and from UCLA Law School in 1969. For the first approximately ten or more years of my practice, I focused primarily in the area of criminal defense at the trial and appellate levels, mostly in the federal courts. In that capacity, I handled hundreds of matters, tried many cases ranging from immigration offenses to murders, and handled numerous appeals. For the past approximately 25 years, I, as well as the firms in which I have been a principal, have focused primarily on complex civil litigation in the areas of constitutional law, civil rights law, class action litigation, and complex multi-party litigation. 4. My current and former firms listed in ¶1 all operated for the specific purpose of developing and maintaining a civil rights and public
1

interest law practice which operates in the private sector on the basis of selfgenerated fee awards and other recoveries. Nearly all of the work of my past and present firms falls into this category. Litt & Stormer received the Pro Bono Firm of the Year Award from Public Counsel in 1987 in recognition of its public interest and civil rights work. Litt & Marquez received an award from the NAACP Legal Defense Fund in July, 1992, as civil rights firm of the year in recognition of its civil rights work, primarily for litigation I headed regarding the LAPD’s canine unit. I received an award from UCLA School of Law as its public interest alumnus of the year in 1995. I have both spoken and written on the subject of civil rights training. I recently published an article entitled “Class Certification in Police/ Law Enforcement Cases” in Civil Rights Litigation and Attorney’s Fee Annual Handbook, Vol. 18, Ch. 3 (West Publishing 2002) and an article in the Los Angeles Lawyer regarding the use of minimum statutory damages under the Unruh Act, particularly actions brought under Civil Code §52.1, to enhance the prospects for certifying class actions. See Rights for Wrongs, Los Angeles Lawyer December 2005.
5. Civil rights class actions in which I am, or have been, the, or one of the, lead counsel, include:
 Craft v. County of San Bernardino, 468 F.Supp.2d 1172 (C.D.Cal. 2006) (certified class action against the Sheriff of San Bernardino County for blanket strip searches of detainees, arrestees, and persons ordered released from custody; partial summary judgment decided for plaintiffs; $25.5 Million settlement approved and order signed on April 1, 2008);
 Gail Marie Harrington-Wisely, et al. v. State of California, et al., Superior Court Case No. BC 226373 (a case involving searches of visitors to California prisons utilizing backscatter x-ray methods without reasonable suspicion; stipulated injunction entered);
2

 Lopez v. Youngblood, No. CV07-00474 LJO (DLBx) (E.D. Calif.) (pending class action against Kern County, California, for unlawful pre-arraignment and post-release strip searches and strip searches not conducted in private);
 Williams v. Block, Case No. CV-97-03826-CW (Central District of California) and related cases (a series of cases county jail overdetention and strip search cases, settled for $27 Million and a complete revamp of jail procedures);
 Bynum v. District of Columbia, Case No. 02-956 (RCL) (D.D.C.) (class action against the District of Columbia for overdetentions and blanket strip searches of persons ordered released from custody; final approval of $12,000,000 settlement occurred January 2006);
 Barnes v. District of Columbia, Civil Action No: 06-315 (RCL) (D.D.C.) (pending class action against District of Columbia for continuing to both over-detain and strip search post-release inmates despite settlement in Bynum, supra);
 Johnson v. District of Columbia, Case No. 02-2364 (RMC) (D.D.C.) (pending class action against the District of Columbia and United States Marshals for blanket strip searches of arrestees without reasonable suspicion and not involved in drug or violent activity);
 Powell v. Barrett, Civil Case No. 1:04-cv-1100 (N.D. Ga.)(RWS)(pending class action against the Sheriff of Fulton County for overdetentions and blanket strip searches of arrestees and persons ordered released from custody; interlocutory appeal resulted in no qualified immunity determination for the strip search practices at issue; matter currently pending in the Eleventh Circuit after rehearing en banc granted);
 Davis v. County of Los Angeles, No. CV 04-8251 AHM (MANx) (C.D. Calif.) (pending class action for failure to adequately address spread of MRSA in the Los Angeles County jail);
 Solis v. County of Los Angeles, No. CV06-1135 SVW (CTx) (C.D. Calif.) (pending class action for strip searches of persons arrested on
3

warrant without individualized suspicion and strip searches in groups);
 Ofoma v. Biggers, Case No.: 715400 (Complex Litigation Panel) (Orange County Superior Court)(family discrimination class action settled in 1996 for damages for the individual plaintiffs and the class of residents, a consent decree and an award of attorney’s fees);
 People of the State of California v. Highland Federal Savings and Loan, Case No.: CA 718 828 (Los Angeles Superior Court)(class action filed on behalf of the People of the State of California and a class of tenants residing in several slum buildings located in Los Angeles for financing practices encouraging and perpetuating slum conditions, settled for $3.165 million after decision in People v. Highland, 14 Cal.App.4th 1692, 19 Cal. Rptr. 555 (1993) established potential liability for lenders);
 Hernandez v. Lee, No. BC 084 011 (Los Angeles Superior Court)(a class action on behalf of tenants of numerous buildings for slum conditions settled in 1998 for $1,090,000);
 Mould v. Investments Concept, Inc., Case No.: CA 001 201 (Los Angeles Superior Court)(race discrimination class action on behalf of a class of applicants and potential housing applicants, settled in 1992 for a total of $850,000 for the class and a comprehensive consent decree regarding the defendants’ discriminatory policies and practices);
 California Federation of Daycare Association v. Mission Insurance Co., Case No.: CA 000 945 (Los Angeles Superior Court)(class action on behalf of several thousand family daycare providers whose daycare insurance policies were canceled mid-term or were not renewed by Mission Insurance Company, settled in 1980’s for reinstatement of policies and attorney’s fees; brought at request of Public Counsel).
6. Individual or multi-plaintiff civil rights cases in which I am or
have been the, or one of the, lead counsel, going back to the late 1980’s,
include:
4

 McClure v. City of Los Angeles, No. CV-92-2776-E (C.D. Cal.)(fair housing and equal protection case against City of Long Beach and its agents for preventing six group homes for Alzheimer’s victims from opening; jury verdict of $22.5 Million (reduced on remittitur to $13,826,832) plus approximately $10,000,000 in attorney’s fees and costs; settled on appeal for $20 Million);
 U.S. v. Hovsepian, 359 F.3d 1144, 1147 (9th Cir. 2004)(en banc) (successful action to naturalize individuals previously convicted of conspiracy to bomb Turkish consulate in Philadelphia), aff’d after remand, 422 F.3d 883 (9/6/05);
 Walker v. City of Lakewood, 263 F.3d 1005 (9th Cir. 2001) (reversing district court decision dismissing fair housing organization’s claim against city for retaliation for supporting tenants suing landlord; case subsequently settled for structural relief, damages and attorney’s fees);
 Hospital and Service Employees Union, SEIU Local 399, AFL-CIO v. City of Los Angeles (Los Angeles Superior Court) (a settlement in 1993 of $2.35 million against the Los Angeles Police Department for injuries to 148 demonstrators at Century City organized by the Justice for Janitors campaign of SEIU);
 Rainey v. County of Ventura, Case No.: 96 4492 LGB (C.D. Calif.)(action against County of Ventura for race discrimination on behalf of 12 police officers, settled for damages, structural relief and attorney’s fees);
 Lawson v. City of Los Angeles, Case No.: BC 031 232 (Los Angeles Superior Court)(lawsuit filed in 1991 on behalf of individuals who had been subjected to what plaintiffs alleged were unlawful use of force practices by the Los Angeles Police Department’s Canine Unit, settled in 1995 for $3.6 million and comprehensive structural relief);
 Tipton-Whittingham v. City of Los Angeles, Case No.: CV-94-3240 (TH)(C.D. Cal.)(sex discrimination and harassment suit against the Los Angeles Police Department, involving over 25 individual officers, as a result of which the Department has already completely
5

revamped its anti-discrimination policies and procedures; damages claims settled for $4.85 Million in 2004 in addition to separate fee award of nearly $2 Million in 2000 for injunctive relief, resulting in decision in Tipton-Whittingham v. City of Los Angeles (2004) 34 Cal.4th 604, in which the California Supreme Court upheld catalyst fees under California law);
 Tavelman v. City of Huntington Park (individual employment discrimination case against the City on behalf of a Jewish police officer who had been subjected to a campaign of religious harassment which was settled in mi-‘90’s for $350,000);
 Hampton v. NRG (racial harassment in employment claim; jury verdict of $1,000,000 for two former employees, plus award of attorney’s fees and costs; settled in mid-‘90’s while on appeal);
 Ware v. Brotman Medical Center (Los Angeles Superior Court) (1993 $2.5 million jury verdict against hospital for removal of hospital privileges of black doctor; settled for $1.75 million);
 Mathis v. PG&E (1991 $2 million verdict against PG&E for barring contract employee from Diablo Canyon Nuclear Power Plant; reversed by the Ninth Circuit);
 Zuniga v. Los Angeles Housing Authority, 41 Cal.App.4th 2 (1995) (holding that the Housing Authority could be held responsible for injuries to tenants after the Housing Authority was put on notice that tenants were being victimized on the premises and took no reasonable measures to prevent the injury; case settled for $1,040,000);
 Macias v. State of California (Los Angeles Superior Court) (action against the State of California and others for blinding of young man as a result of exposure to malathion spray, a portion of which was decided in Macias v. State of California, 10 Cal.4th 844 (1994));
 PIN v. HACLA, Case No: CV-96-2810 RAP (RNBx)(action against the Housing Authority of the City of Los Angeles on behalf of several hundred present or former tenants for discrimination by failing to provide adequate security for isolated minorities in
6

housing developments, settled in 1998 for $1.3 Million plus a comprehensive structural relief settlement agreement);
 Melgar v. Klee (Los Angeles Superior Court) (1988) ($1.5 million jury verdict against Los Angeles Police Department for police shooting; settled for $1.45 million);
 Heidy v. United States Customs Serv., 681 F.Supp. 1445 (C.D.Cal. 1988) (injunction against U.S. Customs Service for policies and practices of seizing materials from persons traveling from Nicaragua in violation of the First Amendment);
 Hernandez v. Avol (action on behalf of approximately 350 slum housing residents, settled in 1988 for a comprehensive injunction and $2.5 Million damages, plus a separate award of attorney’s fees).
7. Civil rights cases in which I have been the, or one of the, lead counsel in reported decisions, i.e., decisions published in official state or federal reports (limited to 1995 forward) include: Powell v. Barrett, 496 F.3d 1288 (11th Cir. 2007) (rehearing en banc granted on issue of whether there was qualified immunity for practice of strip searching pre-trial detainees headed for the general population without reasonable suspicion); Powell v. Barrett, 376 F.Supp.2d 1340 (N.D.Ga. 2005); Craft v. County of San Bernardino, 468 F.Supp.2d 1172 (C.D.Cal. 2006) (holding that San Bernardino’s (1) policy of strip searching in group setting arrestees returning from court who were entitled to release, and (2) policy of strip searching pre-arraignment arrestees charged with crimes not involving drugs or violence who were transferred from short-term to long-term jails violated the Fourth Amendment); Bynum v. District of Columbia, 412 F.Supp.2d 73 (D.D.C. 2006) (denying motion to dismiss claims of Fourth Amendment violations for strip searches of court returns entitled to release and overdetentions of such inmates); Bynum v. Government of Dist. of Columbia, 384 F.Supp.2d 342 (D.D.C. 2005) (approving final strip search settlement);
7

Tipton-Whittingham v. City of Los Angeles, 34 Cal.4th 604 (Cal. S. Ct. 2004) (civil rights catalyst attorneys’ fees available under California law even though not under federal law); Tipton-Whittingham v. City of Los Angeles, 316 F.3d 1058 (9th Cir. 2003); U.S. v. Hovsepian, 422 F.3d 883 (9th Cir. 2005) (en banc); U.S. v. Hovsepian, 359 F.3d 1144 (9th Cir. 2004) (en banc); Walker v. City of Lakewood, 272 F.3d 1114 (9th Cir. 2001); Streit v. County of Los Angeles, 236 F.3d 552 (9th Cir. 2001); Biggs v. Best, Best & Krieger, 189 F.3d 989 (9th Cir. 1999); Mathis v. Pacific Gas and Elec. Co., 75 F.3d 498 (9th Cir. 1996); Haynie v. Superior Court, 26 Cal.4th 1061 (Cal. S. Ct. 2001); Silva v. Block, 49 Cal.App.4th 345 (1996); Zuniga v. Housing Authority, 41 Cal.App.4th 82 (1995); and Macias v. State of California, 10 Cal.4th 844 (Cal. S. Ct. 1995).
8. I am rated “av” by Martindale-Hubbell and am listed as a Southern California “SuperLawyer” in the field of civil rights.
9. As my case list demonstrates, I have been involved with, and successful in, a wide range of complex civil rights cases, including class actions such as this, and have the requisite skills and experience to act as class counsel in this case.
10. I have been particularly involved in strip search class action litigation, as my case list makes clear. In the Craft v. County of San Bernardino case cited above, United States District Judge Stephen Larson made the following comments about me in awarding class fund attorney’s fees:
¾ “Class counsel are highly experienced and highly regarded civil rights lawyers, with extensive class action experience. Mr. Litt is a well known and highly regarded civil rights lawyer specializing in civil rights class actions, especially law enforcement class actions. He has been lead counsel in two other eight figure strip search
8

settlements aside from this one, and is lead counsel in several other pending strip search class actions in California, Washington D .C., Maryland and Georgia. He has several seven figure, and one eight figure, civil rights trial verdicts. With this case, he will have been lead counsel in three of the four largest strip search cases, measured in terms of monetary recovery, in the United States.” Craft v. County of San Bernardino, 2008 WL 916965, 6 (C.D.Cal. 2008) 11. As these comments reflect, I am one of the leading plaintiffs’ counsel in the country in the field at issue in this case – jail strip search cases. 12. In the course of my work on law enforcement class actions, I have gained considerable experience in organizing cases and making them manageable. From my experience, most law enforcement agencies have computerized records. Discovery has shown that this is true of the San Bernardino Sheriff’s Department. These records usually contain a variety of information including name, address, a unique identifier, personal identifying information (such as Social Security number and driver’s license number), arrest information, case number, charges, holds, release information (sometimes direct, sometimes requiring extraction), and other data from which an analysis of a variety of issues is possible. While the particular data and how it is presented varies from one jurisdiction to another, the common factor is databased prisoner and/or arrestee files from which it has always been possible to make determinations of targeted questions. As it pertains to this case, it has been possible to determine from the jail computer records whether someone was strip searched or, in jurisdictions that utilized random strip searches, whether they were among the population subjected to random strip searches. To accomplish this, I have
9

regularly worked with professors and graduate students at UCLA’s Department of Statistics who have analyzed the data, put the relevant information that may come from different databases into a single database, and written programs specific to that database for the purposes of generating the required information. In this case, plaintiffs have submitted the declaration of Richard Berk, formerly a professor of statistics at UCLA now at the University of Pennsylvania, whom plaintiffs have retained to perform such an analysis. Professor Berk initially acted as plaintiffs’ expert in the Williams case against the Los Angeles County Jail and, in conjunction with the settlement, performed such services for all the parties; i.e., plaintiffs’ counsel, defense counsel, and the Class Administrator. Although Professor Berk is now at the University of Pennsylvania, I continue to use his services as he has extensive experience in this area, and has acted in this capacity in cases throughout the country. Although plaintiffs have not yet had the opportunity to review the computerized data, it is clear that plaintiffs will be able to proceed in this case as in the others, and determine class members from the defendants’ computer records.
13. Once a class list is generated – ideally with the involvement of all parties and the court – the class can be notified. Generally, plaintiffs propose that class notice occur after a bifurcated liability trial, or after both the liability and damages phases of the trial, depending on the court’s and parties’ views. Plaintiffs suggest first a liability trial so that the substantial expense associated with class notice occur only if there is a favorable liability determination. In the event plaintiffs are successful on the liability issues, either in conjunction with a settlement or not, or before or after the damages phases of the trial, class notice would then be given. The class notice would explain the process adopted by the court, and provide an opportunity to opt out. An advantage of this approach is that it saves costs
10

and expenses for the parties and the court. If liability is not found, that is the end of the process. If liability is found, that is another opportunity to determine if the case can settle. If it does not, then the class receives notice. The claims procedure can be combined with the notice, even though there may be no amount involved yet. People filing claims would indicate that they qualify as a class member by making sworn representations under penalty of perjury, thereby adding protection that only appropriate class members are compensated. In this case, I believe that many of the key liability issues may be resolved through summary judgment, which plaintiffs will file prior to the hearing on the motion for class certification.
14. Once the class list is generated, a random sample of an appropriate size, probably around 250-300, would be generated for a damages trial. This is an estimate based on my personal experience. As Professor Berk indicates, it is too early to choose a proper random sample size. It would be difficult, to say the least, to try individual damage determinations for all class members. Instead, plaintiffs propose that the second phase of the trial would be to determine damages for the random sample. Plaintiffs would retain an integrated team of mental health professionals to provide opinions on the random sample’s damages through a combination of surveys, psychological testing and individual interviews. The jury would determine the damages for each member of the random sample.
15. The third phase of the trial would be to extrapolate the random sample’s damages to the class as a whole. From the random sample award, a statistical analysis will be utilized to determine the mean award, and what the range of awards from the mean would be at difference confidence levels. For example, if the mean award were $5,000 (an arbitrary figure), it can be determined under standard statistical procedures what the range on each side
11

of the mean would be for a 95%, 99% or even 99.99% confidence level. This determination would depend in part on the sample size, in part on the size of the total population at issue, and in part on the distribution of the random sample’s awards. (See Professor Berk’s Declaration.) Hypothetically, the range might be plus or minus $500 for a 95% confidence level, plus or minus $650 for a 99% confidence level, and plus or minus $1000 for a 99.99% confidence level. The confidence level means that, if another random sample were chosen, there is a certain likelihood that the mean from that determination would be within the plus or minus range of the mean in the initial random sample. A confidence level of 95% means that 19 out of 20 determinations drawn from a random sample would fall within that range; a confidence level of 99% means that 99 out of 100 determinations drawn from a random sample would fall within that range; and a confidence level of 99% means that 9,999 out of 10,000 determinations drawn from a random sample would fall within that range. The jury would hear testimony on how to extrapolate damages to the class as a whole and determine the confidence level to use, or the court would so determine and instruct the jury.
16. In any event, at whatever confidence level is adopted, the jury can determine the class damages to be awarded. This procedure provides a much higher level of reliability than individual damage trials since it is well known that re-trials of individual cases can result in substantially different verdicts than the first trial. In fact, in cases where the defense has retained a statistics expert, my experience has been that there is no dispute in principle with the approach or methodology which appear to be universally accepted among statisticians, but rather with how to apply it to the particulars of a case. I have not discussed this analysis with Professor Berk, and it is strictly my presentation based on my independent experience addressing statistics for litigation purposes.
12

UNITED STATES DISTRICT COURT FOR MARYLAND

ERIC JONES, et al.

Plaintiffs v.

Civil Action No. CCB 05 CV 1287

SUSAN MURPHY et al.

Defendants

AFFIDAVIT OF WILLIAM CLAIBORNE IN SUPPORT OF MOTION FOR CLASS CERTIFICATION
1. My name is William Claiborne. I represent I am lead managing counsel for the named plaintiffs and the putative class in this case, Jones v. Murphy, CCB 05 CV 1287.
2. This affidavit is in support of plaintiffs’ motion for class certification.
Training and Experience
3. I am an attorney licensed to practice in the State of Georgia (admitted to bar in 1988) and the District of Columbia (admitted to bar in 1995). I am admitted pro hac vice in this Court. I am a sole practitioner and maintain offices at 717 D Street, NW, Suite 210, Washington, DC 20004-2813, phone 202/824-0700, fax 202/8240745. My practice focuses on plaintiffs’ class actions.
4. In 1984 I received a B.A. in Greek and Latin from St. Louis University, St. Louis, Missouri (Phi Beta Kappa). I graduated magna cum laude from the University of Georgia Law School in 1987.
5. I clerked for Justice George T. Smith of the Supreme Court of Georgia after my first year of Law School, and I clerked for Justice Albert Rendlen of the Missouri Supreme Court after Law School (1987-1988).
6. From 1988 to 1990 I was an associate in corporate and international banking at Shaw, Pittman in Washington, D.C. From 1994 I practiced in Taipei, Taiwan in the offices of Ding Mao Song. The majority of the practice involved representing

PLAINTIFF 122-001

Taiwan governmental entities such as Taiwan Power (the island's only utility) and DORTS (an agency responsible for constructing and operating a mass transit light rail system) in contract disputes with U.S. and European vendors. The practice was directly relevant to litigation because it involved evaluating claims and preparing them for arbitration subject to New York law.
7. In 1994/1995 I was an associate at Skadden, Arps in the New York/ Beijing offices representing lenders in project finance transactions and representing independent power producers in establishing plants in Mainland China. The practice involved drafting and negotiating documents for the financing of power plants. The practice was directly relevant to complex federal litigation because a typical financing document involved 20-30 parties and 150-160 exhibits.
8. I was on the CJA panel for the Superior Court of the District of Columbia from 1995 to 2005 where I tried numerous jury trials and I handled numerous criminal cases. In 1998 I attended a two week trial college at the National Criminal Defense College through Mercer Law School in Macon Georgia. I have tried over 35 bench and jury trials over the past 15 years. In year 2005-2006, the CLE classes I have attended include: (1) 41st Annual Deborah T. Creek Criminal Practice Institute (CPI) conference District of Columbia Public Defender Service all day seminar of criminal defense law, (2) Advanced E-Discovery Institute: Practical Concerns, Pragmatic Advice, Emerging Trends 2005, offered by Georgetown Univ. Law Center, (3) Annual Litigation Under § 42 U.S.C. 1983 Skills Seminar on December 9, 2005 in Atlanta, Georgia sponsored by the Institute of Continuing Legal Education in Georgia (speaker also), (4) District of Columbia NACDL Rites of Spring, (5) Georgetown University Law Center’s 24th Annual Section 1983: Civil Rights Litigation on April 20-21, 2006. I attended the National Association of Criminal Defense Lawyers Seminar in October, 2007. I also recently attended the Georgetown University Law Center’s 26th Annual Section 1983: Civil Rights Litigation on April 17-18, 2008.
9. Since 1995 I have been in private practice in the District of Columbia representing plaintiffs in civil rights and personal injury cases and defendants in criminal cases. My practice over the last 6-7 years is devoted mainly to complex federal civil rights litigation.
Academic
10. I delivered two sections (overdetentions and strip searches) at the Annual Litigation Under § 42 U.S.C. 1983 Skills Seminar on December 9, 2005 in Atlanta, Georgia sponsored by the Institute of Continuing Legal Education in Georgia. Participants who attend the whole seminar received CLE credits and I received CLE credits for the written materials I presented.
PLAINTIFF 122-002

Professional Society Memberships
12. I belong to NPAP (National Police Accountability Project) and NACA (National Association of Consumer Advocates).
Experience litigating complex federal cases including civil rights cases
PENDING AND SETTLED CLASS ACTION CASES IN WHICH I AM LEAD/MANAGING COUNSEL
Bynum v. District of Columbia, 02-956 (RCL) (D.D.C.) (plaintiffs challenge DC Jail’s practice of overdetaining inmates past their release dates and DC Jail’s practice of returning court returns entitled to release by virtue of their court appearances to DC Jail solely for out-processing and subjecting them to blanket strip and visual body cavity searches before releasing them)(both classes certified, settled and approved) Bynum v. District of Columbia, 412 F. Supp. 2d 73 (D.D.C. 2006)
Elliott v. Smart Professional Photocopy Corp., 02ca3321 (Judge Rankin, District of Columbia Superior Court) (consumer rights) (settled and approved)
Ford v. ChartONE, Inc., 02ca1331, 04-CV-1193 (consumer rights) Julian Ford v. ChartOne, Inc., 2006 D.C. App. LEXIS 533 (January 2007) (final class settlement)
Petersan v. ChartONE, Inc., 03ca8328 (Judge Terrell, District of Columbia Superior Court) (consumer rights) (representative action, DC version of California’s 17200) (January 2007) (final class settlement as part of Ford v. ChartONE settlement)
Johnson v. District of Columbia, 02-2364 (RMC) (D.D.C.) (plaintiffs challenge District of Columbia’s and Marshals’ practice of strip searching all women arrestees taken to Superior Court for presentment)(defendants stopped practice and motions to dismiss pending)(classes certified)
Powell v. Barrett, 04-1100(N.D. Ga.), 05-16734(11th Cir.) (plaintiffs challenge Fulton County Jail’s practice of overdetaining inmates past their release dates and Fulton County Jail’s practice of subjecting arrestees and court returns and other releasees to blanket strip and visual body cavity searches)(appeal argued 10/6/06; presiding judge announced panel would defer assigning opinion for 30 days to give
PLAINTIFF 122-003

defendants opportunity to settle case before issuing opinion))(currently briefing for en banc review)
Barnes v. District of Columbia, 06-315 (RCL)(D.D.C) (challenges DC Jail’s release and strip search policies/practices)(motion for class action treatment pending).(classes certified)
SOME SETTLED AND PENDING CIVIL RIGHTS CASES AND COMPLEX FEDERAL CASES
McDowell v. District of Columbia, 02-1119(RWR/JMF)(D.D.C.)(plaintiff challenges in-the-field intimate body search) McDowell v. Gov't of the Dist. of Columbia, 233 F.R.D. 192 (D.D.C. 2006)
Carter v. District of Columbia, 01-cv-1050(GK/JMF) (false arrest, first amendment retaliation, § 1983)
Horn v. District of Columbia, 2001cv225(GK)(DAR) (false arrest, illegal search, § 1983)(challenges District of Columbia MPD’s practice of conducting field intimate body strip searches of suspects and arrestees where officers touch genitalia and anus with hands)
Doe v. District of Columbia, 02-342, (school principal and teachers took schoolchildren to DC Jail and instructed guards to subject children to strip and visual body cavity searches)
Walker v. Metiver and District of Columbia, 99ca6954 (police shooting)
Taylor v. AMTRAK, 99ca9067 (police shooting)
Robinson v. AMTRAK, 01cv705(CKK) (false arrest, excessive force)
Elliott v. Barham, et al., 00cv2047A (E.D. Va) (medical malpractice, dismissed pursuant to confidential agreement)
Smith v. Perry and District of Columbia, 2000cv199(GK) (false arrest, excessive force, settled for $195,000)
Newby v. District of Columbia, 98cv429 (SS, CKK), (civil rights, plaintiff forced to perform strip shows while inmate at DC Jail)Judge Sporkin granted directed
PLAINTIFF 122-004

verdict for plaintiff at close of all evidence on all claims including § 1983 municipal liability claim) Newby v. District of Columbia, 59 F. Supp. 2d 35 (D.D.C. 1999) Pryor v. District of Columbia, 98cv419 (SS,GK) (settled) (civil rights, plaintiff beaten for protesting guards forcing inmates to perform strip shows while at DC Jail) Williams v. District of Columbia, 98cv829 (CKK) (settled) (civil rights, plaintiff forced to perform strip shows while inmate at DC Jail) Whitmore v. Virginia, E. D. Va. C.A. 96-980-A, (§ 1983/religious discrimination case, unwanted proselytizing by co-workers, treatment by co-workers rendered plaintiff's previously a-symptomatic schizophrenia symptomatic) Doe v. The MEGA Life and Health Insurance Co., 96 CV 02236 (TPJ)(bad faith insurance claim for denial of claim of plaintiff for hospital and medical expenses incurred as a result of suicide attempt where District of Columbia statute prohibits such denials) OTHER COMPLEX CASES Young v. FST Enterprises (McDonald's), (D.C. Superior Court). Lead counsel, premises liability. Plaintiff was young woman who witnessed execution style murder of 3 co-workers in robbery at fast food restaurant that caused her severe emotional damages and post traumatic stress syndrome. Case dismissed pursuant to confidential agreement. United States v. Evans, involuntary intoxication defense to domestic violence charges based on reactions of a bi-polar police woman to steroid based asthma medication.
PLAINTIFF 122-005

I, William Claiborne, pursuant to 28 U.S.C. § 1746, declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge. Executed on April 23, 2008.
___/sig wcc/__________________________ WILLIAM CLAIBORNE D.C. Bar # 446579 717 D Street, NW Suite 210 Washington, DC 20004 Phone 202/824-0700 Fax 202/824-0745
PLAINTIFF 122-006

UNITED STATES DISTRICT COURT FOR MARYLAND

ERIC JONES, et al.

Plaintiffs v.

Civil Action No. CCB 05 CV 1287

SUSAN MURPHY et al.

Defendants

AFFIDAVIT OF SEAN R. DAY IN SUPPORT OF MOTION FOR CLASS CERTIFICATION

1. My name is Sean R. Day. I am the lead local counsel for the Named Plaintiffs and Putative Class in this case.

2. This affidavit is in support of Plaintiffs’ motion for class certification.

3. I am an attorney licensed to practice in state and federal courts in Maryland (admitted 1995) and the District of Columbia (admitted 1996). I maintain offices at 8505 Baltimore Avenue, Suite B, College Park, Maryland 20740.

4. In 1990 I received a B.S. in Commerce (Finance Concentration) with Distinction (Top 10%) from the University of Virginia. In 1995 I received a J.D. cum laude from the School of Law at the State University of New York at Buffalo.

5. During 1996 I worked for a small private practice with a focus on personal injury litigation. Since January 1997 I have been a sole practitioner.

PLAINTIFF 123-001

6. I have handled numerous civil rights lawsuits against government entities, including the State of Maryland, Montgomery County, Prince George’s County, City of Greenbelt, District of Columbia, and the United States, including: Helton v. United States, 191 F.Supp.2d 179 (D.D.C. 2002) (arrestee strip search case under Federal Tort Claims Act) (settled); White v. Maryland Transportation Authority, 151 F.Supp.2d 651 (D.Md. 2001) (false arrest and excessive force) (settled); and Bibum v. Prince George’s County, 85 F.Supp.2d 557 (D.Md. 2000) (false arrest and excessive force) (settled).
7. I have also been counsel of record in three class action lawsuits: Johnson v. District of Columbia, 02-2364 (RMC) (D.D.C.) (arrestee strip searches of women but not men) (pending, certified as class action); Ford v. ChartOne, Superior Court of the District of Columbia, Docket No. 02-7111 (consumer class action) (settled) (groundbreaking appellate decision in the area of D.C. consumer rights published at 908 A.2d 72 (D.C. 2006)); and Elliott v. Smart, Superior Court of the District of Columbia, Docket No. 02-CA-3321 (consumer class action) (settled).
8. I have handled as sole counsel at least 10 jury trials and 50 bench trials in civil (usually plaintiff) and criminal cases in state and federal courts, and have handled appeals in the Fourth Circuit, the Court of Special Appeals of Maryland, and the D.C. Court of Appeals (2 in each court).
PLAINTIFF 123-002

9. I have been particularly interested in litigation involving social and political injustices, including civil rights cases and cases involving animals and animal rights activists.
10. Through interviews with persons released from the Baltimore Central Booking and Intake Center, an officer employed at CBIC, and other CBIC insiders, I learned of the facts that led to the filing of this lawsuit.
11. In my pro bono representation of 11 animal rights activists who were arrested and charged in the District of Columbia, in interviewing those 6 male and 5 female activists I uncovered the U.S. Marshal Service for the Superior Court’s policy and practice of strip searching female, but not male, arrestees, leading to Helton and Johnson and the end of the discriminatory policy and practice.
I, Sean R. Day, pursuant to 28 U.S.C. § 1746, declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge. Executed on April 25, 2008.
___/s/Sean R. Day/s/_________________ SEAN R. DAY 8505 Baltimore Avenue Suite B College Park, MD 20740 301.220.2270
PLAINTIFF 123-003

1

DECLARATION OF KEVIN NICHOLS

2

I, KEVIN NICHOLS, declare as follows:

3

1. I have personal knowledge of the facts set forth in this declaration, except where specified

otherwise. If called to testify to these facts as a witness in this action, I would so testify.
4
2. I have been retained by Plaintiffs’ counsel to provide results of data that I have analyzed in

5 this case initially, but not exclusively, for the purpose of class certification. I have been retained to

6 provide my opinion on the following two subjects in the action Eric Jones et al. v. Susan Murphy et al.,

7 Case Number 05-1287 CCB, United States District Court for the District of Maryland involving persons

8 brought to Baltimore’s Central Booking and Intake Facility for presentment to a court commissioner.
9 First, the ability of the data to identify arrestees whom have been either over detained or strip searched
for current and future data. Second, to evaluate a methodology to determine damages for the named
10
plaintiffs and class members. I have been informed that there are three defendants in the case: Susan
11 Murphy, William Jednorski and Mitchell Franks, in his individual and official capacity.
12

13

Qualifications

14

15

3. I am a third year Ph.D. student at the University of California, Los Angeles and have

earned my Master’s degree in Statistics. I am trained at the graduate level in data management and data
16
analysis. My doctoral research entails computational simulation for both social and financial sciences. I

17 am currently working on this case with Dr. Richard Berk, Professor of Criminology and Statistics at the

18 University of Pennsylvania and fellow of both the American Association for the Advancement of

19 Science & the American Statistical Association, and with Dr. Brian Kriegler, Ph.D. in Statistics from the

20 University of California, Los Angeles. Attached hereto is a true and correct copy of my curriculum
21 vitae, marked Exhibit A.
4. I have worked extensively on numerous class action lawsuits that have required the use of
22
statistical computational programming, numerical analysis, and sampling. While protective orders
23 prohibit me from going into details about these cases, I will describe aspects of some of the cases on
24 which I have worked that resemble this case.

25

a. In Craft v. San Bernardino County Sheriff’s Department (Case No. 05-359 SGL (OP)(D.

26

Cal. 2006)), my task (along with Dr. Kriegler) was to analyze and process data maintained

27

by the San Bernardino County Sheriff’s Department (hereafter “SBSD”) necessary to

DECLARATION OF KEVIN NICHOLS IN SUPPORT OF

PLAINTIFFS’ MOTION FOR CERTIFICATION

PLAINTIFFS 124-001

1

identify individuals who were subjected to full body cavity searches prior to their

2

arraignment hearing and/or after being ordered released by the San Bernardino County

3

Superior Court and/or in the presence of other inmates. To accomplish this task, SBSD

turned over all data and documentation that Dr. Kriegler and I concluded were necessary to
4
address the issues for which we were retained. This was then agreed to by the parties with

5

participation of the court. It was subject to an agreement that the data be maintained in

6

strict confidence and not be used for any purpose other than the class claims administration

7

in Craft. In all, Craft involved analysis of approximately 380,000 bookings, of which over

8

265,000 bookings qualified approximately 155,000 unique individuals for membership in

9

the class. My understanding is that the settlement of this case is currently being finalized.

b. Fairfield v. Advantage Rent-a-Car (Case No. BC342461) was a “wage and hour” case in
10
which my tasks were threefold. First, I recommended a procedure by which hourly

11

employee data should be sampled so that conclusions about the population of hourly

12

employees could be drawn within a reasonably small margin of error. Second, upon

13

receiving the data from Advantage Rent-a-Car, I imported and wrote computational code so

14

that the data were in a format that could be analyzed. Third, I analyzed this sample of data

15

for the purposes of computing both missed meal breaks and uncompensated overtime hours

of work, then I made projections to the population of class members. All of this work was
16
subject to an agreement that the data be maintained in strict confidence and not be used for

17

any purpose other than the class claims administration in Fairfield. I analyzed clock in/out

18

(i.e., time card) data for approximately 150 employees and 3,500 employee workdays. My

19

understanding is that the settlement of this case is currently being finalized.

20

c. Barnes v. District of Columbia (Case no. 06-315 RCL) is a class action law suit against the

21

District of Columbia for detaining individuals past their expected date of release and/or

subjecting them to full body cavity searches after being ordered to be released by a
22
Superior Court judge. Just as in Craft, the DC Department of Corrections turned over all

23

data and documentation that I concluded were necessary to address the issues for which I

24

was retained. Their database consisted of approximately 43,000 bookings during the class

25

period. Roughly 12,000 bookings have been identified as individuals for possible

26

membership in the class. To help determine the class size and individual class

27

membership, I have designed a sampling procedure for examining a subset of possible class

DECLARATION OF KEVIN NICHOLS IN SUPPORT OF

PLAINTIFFS’ MOTION FOR CERTIFICATION

PLAINTIFFS 124-002

1

members’ hard copy documents based on the results of individuals’ data (e.g., booking

2

data, charges data, location history, etc.) located on the DC jail’s computer database

3

system. I am still actively working on this case.

d. Gamino v. County of Ventura(Case no. CV-02-9785 CBM (Ex)) is a class action against

4
Ventura County for subjecting individuals to full body cavity searches after being arrested

5

on a charge of driving under the influence. The Sheriff’s Department turned over data and

6

documentation that I concluded were necessary to address the issues for which I was

7

retained. The data consisted of 41,000 bookings during the class period. Of those 41,000

8

bookings, approximately 3,500 individuals have been identified for the class. I am still

9

actively working on this case. This case is in mediation and is expected to settle.

5. For each of these cases, I have had (or am still having) discussions with each respective
10
opposing counsel’s technical experts to ensure that there was (is) minimal burden placed on those

11 responsible for producing the data.

12

6. For all of these cases I have used the highly reputable statistical software program SAS for

13 all analysis. I am also trained to use Microsoft Office tools. I have taken graduate courses in data 14 management and SAS programming.

15
Knowledge in this Case
16

17

7. I have read the document “BC Treatment Plan,” as provided by the Plaintiffs Counsel.

18 This plan details the protocol for an arrest made in Baltimore County and the timetable for a booking

19 cycle. A true and correct copy of the “BC Treatment Plan,” was filed as Plaintiffs’ Exhibit 95.

20

8. I have read the declarations of Richard A. Berk(Exhibit 96) and Susan J. Fiester(Exhibit

21 125) in support of the Plaintiffs’ counsel to provide an opinion on a methodology to determine damages
for named plaintiffs and class members on a class-wide basis in this action.
22
9. Plaintiffs’ counsel has also instructed me to consider the gender of the arrestee, and the
23 warden in tenure, at the time of arrest. Plaintiffs’ counsel has informed me to assume that these are the

24 dates that the wardens were in tenure:

25

a. William Jednorski (May 12th, 2002 – March 8th, 2004

26

b. Susan Murphy (March 9th, 2004 – June 22nd, 2005)

27

c. Howard Ray (June 23rd, 2005 – July 5th, 2005)

DECLARATION OF KEVIN NICHOLS IN SUPPORT OF

PLAINTIFFS’ MOTION FOR CERTIFICATION

PLAINTIFFS 124-003

1

d. Mitchell Franks (July 6th, 2005 – End of class period)

2

10. I have worked intensively with numerous electronic files provided to us by the City of

3 Baltimore. Plaintiffs’ counsel has informed me that at the outset, there is one database of critical
importance to this case. That database comes from the Central Booking and Intake Center’s Automated
4
Booking System (henceforth referred to as the “ABS data”). After several conversations with opposing
5 counsel’s technical experts on the best way to format and transport the data, we received CD-ROMs

6 with the ABS data from the county of Baltimore. The data consists of bookings with arrest dates during

7 the period of May 2002 through August 2007. After discussions with Plaintiffs’ counsel and with

8 Defendants’ counsel and their technical experts, I was provided with ABS data in the form of six
9 electronic data files (“queries”).
11. Each query is part of a relational database by Central Booking Facility number (henceforth
10
known as “CBF number”). That is, the CBF number is found in all six queries and can be used to link
11 information from one query to information on the same booking found in another query. Thus far for
12 analysis only information from Queries 1, 2 and 6 have been necessary to identifying possible over-

13 detentions. Some key pieces of information found in each query are as follows: Query 1 contains

14 biographical information, arrest information, transport information, booking information, offense
15 information, court commissioner hearing information and release information. Specific fields from
Query 1 provide the following pieces of information that I have used for analysis: the recorded arrest
16
date and time, the recorded release date and time, whether or not that individual was a police release and
17 the recorded date and time in which an inmate was heard by a court commissioner. Query 2 contains
18 primarily charge information. Charge information will be used to determine charge severity. Query 6

19 contains location history information. Query 6 is used to determine the first time that an inmate is

20 scanned into the system, the last time an inmate moves during the booking cycle and whether or not that

21 inmate was ever in room for a court commissioner hearing. Queries 3, 4 and 5 have not been used in the
over-detention analysis of the data. Query 3 contains a description of the incident for each booking
22
cycle. Query 4 contains information on the arresting officer as well as other affiliates to the arrestee for
23 the booking cycle. Query 5 contains a list of personal possessions found on the arrestee.

24

12. Plaintiffs’ counsel has instructed me to identify three classes of people:

25

a. All individuals who were booked and presented to a court commissioner more than 48

26

hours after the time of arrest. From henceforth these people will be known as

27

“presentments.”

DECLARATION OF KEVIN NICHOLS IN SUPPORT OF

PLAINTIFFS’ MOTION FOR CERTIFICATION

PLAINTIFFS 124-004

1

b. All individuals who were booked and released by the Police more than 48 hours after the

2

time of arrest without charges. From henceforth these people will be known as “Released

3

without charge” or “RWOCs” for short.

c. All individuals who were neither released nor presented to a court commissioner.
4
Plaintiffs’ counsel has undergone further investigation and informed me that it appears

5

these people were already in jail and were brought to ABS to be processed on a different

6

warrant or for an offense allegedly committed while in jail. From henceforth these will be

7

known as “jail detainees.”

8

13. While there are no fields that directly indicates a strip search, if provided parameters I can

9 develop logical queries to identify class members based on the date/time of booking, gender, arrest
charges, search officer, and other parameters.
10

11

Examination of Data & Assumptions for Analysis

12

13

14. For all analyses, Plaintiffs’ counsel has asked me to assume that each booking cycle begins

14 with the arrest date and time. Should the arrest date/time information be unavailable for a given
15 booking, then the first documented movement while in custody shall be considered the beginning of
detainment for that individual.
16
15. I computed presentment detention as the difference between the court commissioner
17 hearing (henceforth “CC hearing”) and the date/time of arrest. For all bookings found in both the
18 booking informational query (Query 1) and the location history query (Query 6) there is 100%

19 correlation between the CC hearing field found in Query 1 and the first time that an arrestee visits one of

20 the following court commissioner rooms in Query 6: 2N10, 2N14, 2N15, 2N16, 2N17, 2N18,2N25.
21 This means that the first time an arrestee is scanned in at one of the court commissioner rooms is the
same exact time that is found for their CC hearing field in the booking query. Thus, calculating
22
detention for a “presentment” by subtracting the date/time of arrest from the CC hearing is congruent to
23 calculating the difference between a person’s time of arrest and the first time that person enters one of
24 the above listed court commissioner rooms. From henceforth this will be known as method 1 for

25 calculating “presentment” detention length.

26

16. Plaintiffs’ counsel has asked me to search for instances in which a “presentment,” visits a

27 court commissioner room multiple times during a booking cycle. Of the 236,401 “presentments” 13,377
DECLARATION OF KEVIN NICHOLS IN SUPPORT OF PLAINTIFFS’ MOTION FOR CERTIFICATION
PLAINTIFFS 124-005

1 of them have multiple trips to a court commissioner room. Plaintiffs’ counsel has asked me to calculate

2 the length of detention in an alternate way for these people. Instead of calculating detention as the first
3 time a person enters a court commissioner room minus time of arrest, detention will instead be
calculated as the last time a person enters a court commissioner room minus the time of arrest. Except
4
for in the case of “presentments” who have visited room 2N25. I have been informed that room 2N25 is
5 also used for pre-trial so “presentments” with multiple trips to 2N25 may have reasons for additional
6 visits other than a court commissioner hearing. The first visit to room 2N25 will be considered the end

7 of the term of detainment. Again, using this alternative method for calculating detainment will not make

8 a difference for most “presentments” as they only enter a court commissioner room once, but

9 nonetheless the resulting number of over-detentions for the class is still affected significantly using this

alternative method of detention calculation. From henceforth this will be known as method 2 for
10
calculating “presentment” detention length.

11

17. There were some instances (3,098) in the ABS data in which a booking number existed in

12 the location history query (Query 6) but did not exist in the booking informational query (Query 1) and

13 the location history indicated that the arrestee had visited a court commissioner hearing room. Without

14 booking or arrest information we had to use an alternative method to calculate the length of detainment

15 for these individuals. The length of detainment is again calculated in one of following two ways:

a. Parallel to method 1 for calculating presentment length, these 3,098 bookings will have the
16
end of their detention length considered to be the first time they enter one of the court

17

commissioner rooms. Without an arrest date, the beginning of their detainment will simply

18

be the date/time of the first movement while in custody found in the location history query

19

(Query 6). Detainment for these 3,098 bookings calculated this way will be included with

20

the method 1 version of the results.

21

b. Congruent with method 2 for calculating presentment length, these 3,098 will have their

last date/time they enter a court commissioner room (unless its room 2N25, in which case
22
the date/time of the first visit is still used) used as the end of their detainment. The

23

beginning of their detainment will again be the first date/time of movement under custody

24

found in Query 6. Detainment for these 3,098 bookings calculated this way will be

25

included with the method 2 version of the results.

26

27
DECLARATION OF KEVIN NICHOLS IN SUPPORT OF PLAINTIFFS’ MOTION FOR CERTIFICATION
PLAINTIFFS 124-006

1

18. If a booking did not have a CC hearing or any electronic evidence of ever visiting a court

2 commissioner room, I considered this booking not to be a presentment. If according to the data, an
3 individual was released with out having been presented to a court commissioner but s/he was a “police
release,” then this booking was classified as a “RWOC.” If the release time is recorded then detention is
4
computed as the difference between the release date/time and the arrest date/time. If the release
5 date/time is not available in the ABS data, then detention is computed as the difference between the last
6 known date/time of movement while in custody minus the date/time of arrest.

7

19. I considered individuals who, according to the electronic data, did not visit a court

8 commissioner after their arrest and were not indicated as being released without charge. There are
9 145,407 such bookings. 89,314 of these bookings had a booking type that was not “Warrant.” 19,334
of them visited a pre-commissioner hearing waiting room (2N01, 2N04, 2N06). Plaintiffs counsel has
10
informed me that further discovery is required before these bookings can be accurately classified and a
11 methodology for calculating detention can be developed. These bookings for now have been classified
12 as “other.”

13

Results

14

15

20. Table 1 shows all bookings for the class period(up to the point that we have data) dissected

in the following way:
16
a. Bookings were first classified as “presentments”, “RWOCs” or “other”

17

b. Bookings were then further classified by warden in tenure based on their arrest date.

18

c. “Presentments” and “RWOCs” had their detainment length calculated as was specified in

19

paragraphs 15, 17 and 18. Method 1 for calculating presentment detention was used.

20

d. All bookings were then further classified by the length of their detainment. Inmates with

21

more than 48 hours of detainment were flagged as over-detained.

e. “Presentments” and “RWOCs” were classified by gender.

22

23

24

25

26

27
DECLARATION OF KEVIN NICHOLS IN SUPPORT OF PLAINTIFFS’ MOTION FOR CERTIFICATION
PLAINTIFFS 124-007

1

2

21. Table 2 shows all bookings for the class period(up to the point that we have data) dissected

3 in the following way:

a. Bookings were first classified as “presentments”, “RWOCs” or “other”
4
b. Bookings were then further classified by warden in tenure based on their arrest date.

5

c. “Presentments” and “RWOCs” had their detainment length calculated as was specified in

6

paragraphs 16, 17 and 18. Method 2 for calculating presentment detention was used.

7

d. All bookings were then further classified by the length of their detainment. Inmates with

8

more than 48 hours of detainment were flagged as over-detained.

9

e. “Presentments” and “RWOCs” were classified by gender.

Implementing a coded version of the logic found in paragraphs 15, 16, 17 and 18 with SAS I was able to
10
generate the following results.

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27
DECLARATION OF KEVIN NICHOLS IN SUPPORT OF PLAINTIFFS’ MOTION FOR CERTIFICATION
PLAINTIFFS 124-008

1

2

Table 1: Analysis of Bookings from ABS Data (CC Hearing Field Used for End of

Detainment)
3

4

JEDNORSKI MURPHY RAY

FRANKS TOTAL

5

TOTAL BOOKINGS

6

Presentments

82,373 54,904

211,519 86,760

3,151 178,710 475,753 1,195 93,542 236,401

7

RWOCs

15,926 44,862

821 32,336 93,945

8

Other

11,543 79,897 1,135 52,832 145,407

PRESENTMENTS NOT

9

PRESENTED WITHIN 48 HOURS

6

528

0

0

534

10

48-60 Hours

60-72 Hours
11
72+ Hours

12

*24-48 Hours

3 1 2 4,158

371 119
38 24,119

0

0

374

0

0

120

0

0

40

267

6,612 35,156

13

*Within 24 Hours

50,740 62,113

928 86,930 200,711

14

RWOCS NOT PRESENTED WITHIN

48 HOURS

15

48-60 Hours

4

1,095

0

3

654

0

1 1,100

0

657

16

60-72 Hours

17

72+ Hours

*24-48 Hours

18

*Within 24 Hours

19

PRESENTMENTS + RWOCS

20

PRESENTMENTS + RWOCS,

Detainment is greater than 48

21

Hours

1 0 188 15,734

295 146 11,551 32,216

0

0

296

0

1

147

175

2,140 14,054

646 30,195 78,791

70,830 131,622 2,016 125,878 330,346

10

1,623

0

1 1,634

22

PRESENTMENTS + RWOCS,

gender is male

23

56,067 106,238 1,702 102,246 266,253

24

25

26

27
DECLARATION OF KEVIN NICHOLS IN SUPPORT OF PLAINTIFFS’ MOTION FOR CERTIFICATION
PLAINTIFFS 124-009

1

2

Table 2: Analysis of Bookings from ABS Data (Last Movement to a CC Room Used for End

of Detainment)
3

JEDNORSKI MURPHY RAY

FRANKS TOTAL

4

5

TOTAL BOOKINGS

82,373 211,519 3,151 178,710 475,753

Presentments
6

RWOCs

7

Other

54,904 15,926 11,543

86,760 44,862 79,897

1,195 821
1,135

93,542 236,401 32,336 93,945 52,832 145,407

8

PRESENTMENTS NOT

PRESENTED WITHIN 48 HOURS
9
48-60 Hours

10

60-72 Hours

22

654

14

455

5

139

0

60

736

0

3

472

0

0

144

11

72+ Hours

3

60

0

57

120

12

*24-48 Hours

4,806 25,164

299

7,204 37,473

*Within 24 Hours

50,076 60,942

896 86,278 198,192

13

RWOCS NOT PRESENTED WITHIN

14

48 HOURS

4

1,095

0

1 1,100

15

48-60 Hours

60-72 Hours

16

72+ Hours

3

654

0

1

295

0

0

146

0

0

657

0

296

1

147

17

*24-48 Hours

188 11,551

175

2,140 14,054

18

*Within 24 Hours

15,734 32,216

646 30,195 78,791

19

PRESENTMENTS + RWOCS

20

PRESENTMENTS + RWOCS, Detainment is greater than 48

Hours
21

PRESENTMENTS + RWOCS,

22

gender is male

70,830 131,622 2,016 125,878 330,346

26

1,749

0

61 1,836

56,067 106,238 1,702 102,246 266,253

23

24

25

26

27
DECLARATION OF KEVIN NICHOLS IN SUPPORT OF PLAINTIFFS’ MOTION FOR CERTIFICATION
PLAINTIFFS 124-0010

1

Sampling Individuals in Computerized Databases

2

3

22. In Exhibit 96, Dr. Berk recognizes random probability sampling as a scientifically valid

way of using a sample to learn about a population. Given a random probability sample it is possible to
4
extrapolate the results of that sample to the population with some margin of statistically random error.

5

23. In Exhibit 125, Dr. Fiester declares that for this class, the results of a psychological

6 analysis on a random probability sample of the entire class can be extrapolated to the entire class.

7

24. Given the resulting data from a psychological analysis for a random probability sample of

8 this class I am capable of statistically projecting class wide results with some margin of statistically 9 random error as a means for assessing damages on a class wide basis.

10
Conclusions
11

12

25. With the availability of ABS data it is both feasible and efficient to determine a list of

13 potential class members using logic outlined in paragraphs 15, 16 and 17. Furthermore, should a

14 random probability sample be taken of the entire class and then subjected to a psychological analysis, it
15 is also a relatively simple and efficient process to extrapolate the results of this analysis to the entire
class.
16

17

18

19
20 I declare the foregoing to be true under penalty of perjury of the laws of the United States. Executed this 21 25th day of April, 2008, at Los Angeles, California.

22

23

24

25

/s/ Kevin Nichols /s/

26

Kevin Nichols

27
DECLARATION OF KEVIN NICHOLS IN SUPPORT OF PLAINTIFFS’ MOTION FOR CERTIFICATION
PLAINTIFFS 124-0011

Kevin Nichols
3632 Greenfield Av. #4 Los Angeles, CA 90034
Nichols@stat.ucla.edu

Education
Spring 2008
Spring 2005

M.S.., Statistics, University of California, Los Angeles B.A. Applied Mathematics, University of California, Berkeley

Positions
September 2005Present
July 2006Present

Graduate Teaching Assistant, University of California, Los Angeles Department of Statistics I currently teach mainly upper division graduate courses in statistics, applied statistics and social statistics.
Litigation Consultant, Self-Employed Fairfield v. Advantage Rent-a-Car: Estimated number of hourly employees and number of hours for which
individuals were not compensated properly for overtime and missed meal breaks. Provided deposition testimony and wrote four declarations. Employed graduate students to assist in sampling, data entry, analysis, and critiquing of Advantage’s expert witness testimony. Performed analyses in SAS, R, and Excel. $2.5 million settlement. Craft et al. v. San Bernardino County: Identified individuals who had been subjected to a body cavity search prior to their arraignment hearing, after being ordered released, or in the presence of other inmates. Collaborated with County’s database system administrators to agree on criteria for determining class members. Employed graduate students to assist in analysis of jail database system using SAS and Access. $25.5 million settlement.

June 2008

Technical Teaching Assistant Coordinator, University of California, Los Angeles Department of Statistics Starting at the end of the current school quarter I will be the liaison for teaching assistants and first-year
graduate students in the Statistics Department. I will lead orientation for first-year students and teach weekly graduate student seminars on how to utilize technology in class.

Teaching
September 2007June 2008

Teaching Fellow, UCLA Department of Statistics Fall 2007: Statistics 10, Introduction to Statistical Reasoning
Winter 2008: Statistics 112, Statistical Reasoning for the Social Sciences Spring 2008: Statistics 112, Statistical Reasoning for the Social Sciences

September 2006August 2007 -
December 2005August 2006

Teaching Associate, UCLA Department of Statistics Fall 2006: Statistics 10, Introduction to Statistical Reasoning
Winter 2007: Statistics 10, Introduction to Statistical Reasoning Spring 2007: Statistics 10, Introduction to Statistical Reasoning Summer 2007: Statistics 10, Introduction to Statistical Reasoning
Teaching Assistant, UCLA Department of Statistics Winter 2006: Statistics 13, Statistical Reasoning for the Life Sciences
Summer 2006: Statistics 10, Introduction to Statistical Reasoning

May 2005August 2005
Papers
September 2007

Kaplan GRE Instructor, I was employed as a tutor for potential graduate students preparing to take the GRE
Nichols, K., McCardle, K. and Bikhchandani, S. A Simulated Approach to Repeated Selling with History Dependent Prices. Forthcoming.

Awards
June 2007
November 1996

Teaching Assistant of the Year, UCLA Department of Statistics John Bright Memorial Winner

Computer Skills
Windows XP, OS X, MS Office (Word, Excel, PowerPoint, Access), R, SAS, Stata, LaTeX
Memberships
American Statistical Association, Citizen of the United States of America

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

ERIC JONES, et al.

Plaintiffs v.

Civil Action No. CCB 05 CV 1287

SUSAN MURPHY, et al.

Defendants

PLAINTIFFS’ PROPOSED TRIAL PLAN

The Plaintiffs, by and through undersigned counsel, submit this Trial Plan

in support of their motion for class certification.

I. INTRODUCTION

This is a §1983 class action case alleging the overdetention of arrestees in

Baltimore Central Booking and Intake Center (“Overdetention Claim”), blanket

strip searching of arrestees pursuant to their booking to Central Booking (“Strip

Search Claims”), strip searching of men but not women (“Equal Protection

Claim”), strip searching of men in non-private seetings (“Non-Private Strip Search

Claim”), and searching men, but not women, to their underwear (“Underwear

Search Claim”). The Overdetention Claim covers cases where an arrestee was

overdetained without presentment (and released) as well as cases where the

arrestee was overdetained and presented.

II. PURPOSE OF PROPOSED TRIAL PLAN

Plaintiffs hereby present this proposed trial plan, which explains Plaintiffs’ planned approach to discovery, class notice, and trial. This Proposed Trial Plan is

PLAINTIFF 126-1

meant to aid the Court in determining effective discovery management, the development of notice procedures, and management of the trial of the case. The Proposed Trial Plan is not necessarily meant to be final in the matters of witnesses or exhibits; expert reports; proposing jury instructions and special verdict forms, or even adopting a particular methodology of determining damages for class members. Moreover, the determination of a trial plan will depend on the Court’s decisions regarding the most efficient and reasonable method for proceeding to trial. On this basis, Plaintiffs reserve the right to present a revised and more detailed trial plan once discovery is complete and the trial date nears. III. BIFURCATION OF LIABILITY AND DAMAGES PHASES
Plaintiffs propose that the trial, and initially discovery, be bifurcated into (1) a liability phase (including determination of injunctive relief) and (2) a damages phase. Rule 42(b). The parties have thus far been proceeding on an informal, cooperative discovery process on liability and class action issues.
Bifurcation of civil rights class actions into a liability phase and a damages phase is widely recognized and accepted. See, e.g., Gunnells v. Healthplan Servs., 348 F.3d 417, 425 (4th Cir. 2003); Shetterly v. Raymark Indus., 117 F.3d 776, 782 (4th Cir. 1997) (district court has discretion to bifurcate the trial to ensure case is tried in an orderly fashion); Miller v. Balt. Gas & Elec. Co., 202 F.R.D. 195, 199 (D. Md. 2001); Neal v. Director of Department of Corrections, 1995 U.S. Dist. LEXIS 11543 (D.D.C. 1995) (Memorandum Opinion IV) (Procedures for Absent Class Members) rev’d on other grounds sub nominee, Bonds v. District of Columbia, 93 F. 3d 801 (D.C. Cir. 1996). Rule 42(b) permits
PLAINTIFF 126-2

trial of individual, discrete issues. As long as separate juries do not re-examine previously resolved fact determinations, bifurcation does not violate the Seventh Amendment. Robinson v. Metro-North Commuter R.R., 267 F.3d 147, 170 (2d Cir. 2001); Olden v. Lafarge Corp., 383 f.3d 495, 509 (6th cir. 2004) (affirming Rule 23(b)(3)/23(c)(4)(a) certification of liability issues in a toxic pollutants exposure case noting that if done properly, bifurcation will not raise any seventh amendment “re-examination” issues).
The central issues to be determined in the liability phase are, on the overdetention claim: (1) whether Central Booking has a pattern and practice that led to arrestees being detained for more than 48 hours before release or presentment; (2) whether the practice violates the constitutional rights of arrestees; (3) whether defendant Wardens are liable directly (by having constructive notice of each and every overdetention, and failing to act), on the basis of supervisory liability or acquiescence, or some other theory.
On the strip search claims, the issues to be determined at the liability stage are: (1) whether Central Booking has a practice/policy of subjecting arrestees to blanket booking strip searches (a) without individualized suspicion, (b) in nonprivate setting, or (c) on the basis of gender; (2) whether the practice/policy violates the constitutional rights of arrestees; whether subjecting males but not females to underwear searches violates the Equal Protection Class; and (4) whether defendant Wardens are liable on the basis of supervisory liability or acquiescence.
PLAINTIFF 126-3

The Plaintiffs are currently endeavoring to obtain some clarity on one issue in particular, that is, whether the facts alleged by the Defendants, i.e., that prior to January 1, 2006, the Defendants employed a practice of searching men, but not women, to their underwear. Some additional liability issues may be appropriate for summary judgment as the discovery process unfolds. This far, the focus of discovery has been on line staff and lower-level supervisors. Another issue that may need a motion for summary judgment to be clarified is, in the case of persons who are presented to a commissioner, is whether the period of overdetention should be measured from the time of presentment to the commissioner, or the time at which theperson is actually released from Central Booking. At some times during the class period post presentment release often took up to 8 hours.
At the trial stage, liability and damages can be bifurcated as well, as discussed below. IV. NOTICE PROCEDURES
Notice to class members is not required at Phase I for any class because the issue of liability falls under Rule 23(b)(2). Class actions seeking declaratory or injunctive relief under Rule 23(b)(2) are not subject to the individual notice requirements of Rule 23(c)(2). Stolz v. United Broth. of Carpenters and Joiners of America, 620 F. Supp. 396 (D. Nev. 1985). Moreover, under Fed. R. Civ. P. 23 class notice can be deferred umtil after a resolution of all liability issues.
Notice is required for Phase II because damages are integral to a Rule 23(b)(3) class. Moreover, notice in the case addresses any due process objections
PLAINTIFF 126-4

class members might have to a class-wide determination of damages. Objecting class members would be allowed to opt out of the class in favor of an individual jury trial on damages. The Court can determine the content of the notice after it rules on the methodology of proving damages.
Plaintiffs will submit their proposal for notification procedures if the Court certifies any of the claims or issues. However, at this point the Plaintiffs note that the Defendants have provided the Plaintiffs with data from the Automated Booking System that the Defendants represent contains information as to each person arrested and taken to Central Booking during the class period, including their address at the time of their arrest. Furthermore, issues involving Central Booking have in the past generated widespread media interest. V. PHASE I – TRIAL OF LIABILITY
Determination of liability. Determination of liability can be made either by trial or by motion for summary judgment. The issue of the constitutionality of the Defendants’ written policy of subjecting every male booked into Central Booking during the class period to an underwear strip search based on gender is at the writing pending before the Court.
Whether Central Booking had a practice or written policy of subjecting persons booked into Central Booking during the class period to bare skin1 strip searches (a) without individualized, reasonable suspicion, (b) of men not in private, and/or (c) on the basis of gender, might also be established through a
1 That is, where the underwear are removed or pulled down to expose the genital and/or anal area(s).
PLAINTIFF 126-5

motion for summary judgment depending on the results of discovery. The existence of such policies and practices, however, could be determined at trial if not by summary judgment. Discovery results thus far suggest that the existence of a practice of bare skin strip searches for males and females, will not be in dispute; the only issue will be, when did they stop?
For overdetentions, Plaintiffs expect to be able to use the Defendants’ computer databases and admissions related to those databases to determine who was overdetained and for how long, as explained in Kevin Nichols’ affidavit Plaintiffs’ Exhibit # 124.
Methods of proof. Plaintiffs will prove Central Booking’s liability (i.e., the existence of policies and practices) with evidence based upon declarations of arrestees, statistical sampling, analysis of Central Booking’s own computer records, deposition testimony of Central Booking employees, and witness testimony (including arrestees taken to Central Booking during various periods of time).
The use of statistical evidence to prove liability in civil rights cases is well established. Berger v. Iron Workers Reinforced Rodmen Local 201, 843 F.2d 1395, 1413 (D.C. 1998); Davis v. Califano, 613 F.2d 957 (D.C. Cir. 1979) (“statistical proof may alone be used, without presentation of specific instances of discrimination, to establish a prima facie case of employment discrimination”); Mitchell v. Diamond Cab Company of District of Columbia, 2003 U.S. Dist. LEXIS 12492, *25 (D.D.C. 2003) (motion for summary judgment) (collecting cases).
PLAINTIFF 126-6

Scholars, courts and even legislatures have recognized that, in many cases, statistical methods actually provide a more accurate form of evidence than individual testimony.
Many categories of federal cases routinely use statistical methods to determine liability and damages. See, e.g., Castaneda v. Partida, 430 U.S. 482, 97 S. Ct. 1272, 51 L. Ed. 2d 498 (1977) (statistical data to prove discrimination in jury selection); Menard-Sanford v. Mabey (In re A.H. Robins Co.), 880 F.2d 694 (4th Cir. 1989) (Dalkon Shield litigation); Berger (employment discrimination); Zippo Manufacturing Co. v. Rogers Imports, Inc., 216 F. Supp. 670 (S.D.N.Y. 1963) (Feinberg, J.) (survey data in trademark infringement case); Cimino v. Raymark Indus., 751 F. Supp. 649, 659 (E.D. Tex. 1990) (discussing statistics and its applications in federal cases) rev’d, Cimino v. Raymark Indus., Inc., 151 F.3d 297 (5th Cir. 1998). Courts frequently permit evidence of life-expectancy or mortality tables when determining damages. See Ageloff v. Delta Airlines, Inc., 860 F.2d 379 (11th Cir. 1988); Asana v. United States, 616 F.2d 41 (2nd Cir. 1980); Larsen v. International Business Machines Corp., 87 F.R.D. 602 (E.D.Pa. 1980) (use of work-life tables); see also Bell v. Farmers Insurance Exchange, 115 Cal.App.4th 715, 9 Cal.Rptr.3d 544 (2004) (relying heavily on federal law in upholding the use of statistics to formulate damages and provides a thorough and detailed discussion of the use of statistics to determine damages in the wage and hour context).
Discovery. Database discovery of Central Booking and Baltimore City Police Department computers has been provided and will need to be updated.
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The parties have thus far engaged in informal, targeted, cooperative discovery focusing on the search practices, policies, and justifications. Plaintiffs have deposed numerous line officers and have started on supervisor depositions from the bottom up. That will need to continue on up to the Wardens.
At this point, Defendants have no need to depose absent class members for the liability phase of the trial beyond those who will be on Plaintiffs’ witness list. Dellums v Powell, 566 F.2d 167, 187 (D.C. Cir. 1977) (defendant has no absolute right to take discovery from absent class members). Nor would Defendants need to take damages discovery from any plaintiffs at this point.
Costs and Attorneys' Fees. Plaintiffs will be entitled to an award of costs and reasonable attorneys’ fees for work expended to this date in this litigation should plaintiffs’ prevail at this Phase. Neal v. Director of Department of Corrections, 1995 U.S. Dist. LEXIS 11543 at *14. VI. IMPLEMENTATION OF INJUNCTIVE RELIEF
Plaintiffs believe that the claims for injunctive relief can be settled by agreement between the parties without the need for a court order or on-going court supervision. However, should the parties be unable to resolve this claim, Plaintiffs will request an injunction ordering that:
¾ The State Defendants must maintain a written log of all strip searches of arrestees, showing the name of the arrestee, the charge, the date and time of search, the person conducting the strip search, the reason(s) therefore, the person’s gender, and other persons present during the search.
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¾ Requiring that all strip searches to be approved by a supervisory officer.
¾ Thorough strip search training of all officers.
¾ Each month, the State Defendants file with the Court , and provide to plaintiffs’ counsel a copy of the log;
¾ Attorney’s fees and costs for the injunctive phase be awarded, as well as monitoring fees for the foregoing.
VII. PHASE II – DETERMINING COMPENSATORY DAMAGES If plaintiffs prevail on liability, the issue of damages may well settle. The
Court may even order “bellwether” damages trials of a representative sample, which the parties can then use to assess the values of all claims and possibly settle the case. In re Chevron U.S.A, 109 F.3d 1016, 1019 (5th Cir. 1997) (“The notion that the trial of some members of a large group of claimants may provide a basis for enhancing prospects of settlement or for resolving common issues or claims is a sound one that has achieved general acceptance by both bench and bar”).
If the case does not settle, Phase II of the trial would address classwide damages. The D.C. Circuit Court of Appeals approved the use of a “damages matrix” specifically stated in a mass arrest/ overdetention class action that assigned set amounts of damages to class members by allocating damages according to categories of overdetention times, e.g., x dollars for all persons overdetained between 12-24 hours, y dollars to all persons overdetained between 24-36 hours, etc. Dellums v Powell, 566 F.2d at 189 (“Nor do we think that
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determination of damages in this case requires individualization.” ). Therefore, along with other methods of determining damages, plaintiffs propose two methods of determining damages on a class-wide basis.
A. Methodologies of Determining Compensatory Damages
There are five basic methodologies of determining damages in class actions such as this: (1) by asking the jury to establish a matrix for damages based on such factors as length of detention, type of strip search, and/or arrest charge without statistical sampling; (2) in a single, class-wide damages trial using “sampling;” (3) by mini-trials tried to judges (or, if Defendants agree, magistrate judges, or even special masters) on the issue of damages; (4) using “bell whether” trials of a sample of plaintiffs; or (5) by a claims procedure agreed upon by the parties.
Plaintiffs propose determining damages (1) by asking the jury to establish a matrix for damages for the entire class using the method approved by the Court of Appeals in Dellums; or, alternatively, (2) in a single, class-wide damages trial using "sampling;” (3) by mini-trials tried to judges (or magistrates if defendants agree) on the issue of damages; or, alternatively, (4) by a claims procedure agreed upon by the parties.
The plaintiffs in Dellums v. Powell, whose claims included a claim for damages arising from mass arrest and overdetention, submitted a damages question to the jury that allowed the jury to assign a schedule of damages based on length of detention that was then to be applied to the plaintiffs on a ministerial
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basis. 566 F.2d at 208. Working with the Form of Verdict designed by the district court, the jury was able to award damages along a sliding scale which took into account, in a rough way, the different experiences of different members of the class, without losing administrative feasibility. Id. This is the simplest method of determining damages on a class-wide basis.
Alternatively, Plaintiffs propose using the second method, a single trial using "sampling” to try class-wide damages on an aggregate basis to a jury, as the best approach. The use of acceptable sampling techniques, in lieu of discovery and the presentation of voluminous data from the entire class, will produce substantial savings in time and expense. For many class members, sampling (or damages matrix methods) techniques may provide the only practicable means to obtain recovery. See Manual for Complex Litigation §21.493, at 101 (3d ed. 1995). The Fourth Circuit used sampling techniques extensively in the Dalkon Shield Litigation. See, e.g., Menard-Sanford v. Mabey (In re A.H. Robins Co.), 880 F.2d 694 (4th Cir. 1989). For a discussion of the Fourth Circuit’s extensive use of sampling in the Dalkon Shield Litigation, see Laurens Walker, Essay: A Model Plan To Resolve Federal Class Action Cases By Jury Trial, 88 Va.
L. Rev. 405, 419 (2002). ).2 Many states, including Maryland and the District of Columbia, have statutes that specifically authorize and endorse the use of statistical evidence or proof of amount of damages sustained by the members of the class on a class-wide
2 The case settled before trial. Bynum v. District of Columbia, 412 F. Supp. 2d 73 (D.D.C. 2006) (final approval order).
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basis, without requiring proof of such matters by each individual member of the class. Md. Code Ann., Health-Gen. I §15-120(e)(2) and (3); D.C. Code § 28-4508 (District of Columbia
direct purchaser antitrust) (amount of damages sustained by the members of the class may be proven on a class-wide basis, without requiring proof of such matters by each individual member of the class).
B. Trial Of Class-Wide Damages Using “Sampling”
1. Aggregate trial
Aggregate trials of non-economic damages in civil rights cases are well established. Dellums v Powell, 566 F.2d 176, 189 (D.C. Cir. 1977). In Dellums, the Court of Appeals upheld a jury’s award of a lump sum of compensatory damages, and a distribution matrix of damages for unlawful arrests and illegal detentions based on the arrests. Id. The jury in Dellums decided on a lump sum for a class of protestors arrested without probable cause and illegally detained for varying periods. It then set a schedule according to which damages were assigned to subclasses based upon length of illegal incarceration. The court then assigned class members to a subclass based upon the detention records of the government. Id. The Dellums Court specifically stated, “Nor do we think that determination of damages in this case requires individualization.” Id.
There is a growing trend in favor of using aggregate damage trials. 3 Newberg on Class Actions §10.5 at 483-487 (4th ed. 2002); Long v. Trans World Airlines, Inc., 761 F. Supp. 1320, 1326 (N.D. Ill. 1991) (court limits discovery to
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members of a sample of the class and rules plaintiffs can try a class-wide amount for damages including intangible injuries such as pain and suffering to a jury using sampling); Blue Cross & Blue Shield of N.J., Inc. v. Philip Morris, Inc., 133 F. Supp. 2d 162, 169 (E.D.N.Y. 2001); In re Simon II Litig., 211 F.R.D. 86, 147 (E.D.N.Y. 2002), vacated and remanded on other grounds, 407 F.3d 125 (2d Cir. 2005); Christopher J. Roche, Note: A Litigation Association Model To Aggregate Mass Tort Claims For Adjudication, 91 Va. L. Rev. 1463 (2005) (discussion of sampling begins at page 1502); Laurens Walker, Essay: A Model Plan To Resolve Federal Class Action Cases By Jury Trial, 88 Va. L. Rev. 405; .Ann. Code of Md., Health-Gen. §15-120(e)(2) (authorizing use of statistical sampling for tobacco litigation).
2. Sampling In General
Sampling involves randomly selecting a fraction of class members, trying the damages of each plaintiff in the sample to a jury, extrapolating from the damages of the class to a lump sum for the class, and then distributing the damages among class members according to a formula, or matrix, or point system determined by the jury, or by the Court. Michael J. Saks & Peter David Blanck, Justice Improved: The Unrecognized Benefits of Aggregation and Sampling in the Trial of Mass Torts, 44 Stan. L. Rev. 815 (1992); 3 Newberg on Class Actions § 10.5 at 483-487. Courts have employed various distribution procedures to allocate class awards to class members, some of which are discussed below.
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The most influential case in which tort damages were determined in a lump sum for the entire class in a rule 23(b)(3) class action is Hilao v. Estate of Marcos, 103 F.3d 767, 782 (9th Cir. 1996). In Hilao, working under the supervision of a court appointed special master and aided by a statistics expert, plaintiffs tried the liability and damages claims of approximately 10,000 class members on the basis of a sample of 137 class members chosen by statistical methods. The district court then distributed aggregate damages among the three subclasses based on an average of the representative awards for each subclass. One panel of the Fifth Circuit indicated approval of sampling techniques to determine class-wide tort damages, and even cited to Hilao with approval in In re Chevron U.S.A., 109 F.3d 1016, 1020 (5th Cir. 1997) (inferences about a group may be drawn from a sample if the sample is scientifically chosen; the reliability of the statistical method protects the due process right of the defendant from having to pay a larger award than it owes), citing to Hilao, 103 F.3d at 782-84, 786. Aggregate damage trials using sampling are common in other types of federal cases. Segar v. Smith, 738 F.2d 1249, 1264 (D.C. Cir. 1984) (calculating back pay and front pay in Title VII case on a class-wide basis using statistical methods); Long v. Trans World Airlines, 761 F. Supp. 1320, 1326 (N.D. Ill. 1991) (limiting discovery to members of a sample of the class and ruling that plaintiffs can try a class wide amount for damages including intangible injuries such as pain and suffering to a jury using sampling); In re Sugar Industrial Antitrust Litigation, 73 FRD 322, 353 (E.D. Pa. 1976) (proposing statistical method of determining damages); Blue Cross & Blue Shield of N.J., Inc. v. Philip Morris, Inc., 133 F. Supp. 2d 162, 169
PLAINTIFF 126-14

(E.D.N.Y. 2001); In re Simon II Litig., 211 F.R.D. 86, 147 (E.D.N.Y. 2002), vacated and remanded on other grounds, 407 F.3d 125 (2d Cir. 2005)..
“There is no constitutional, statutory, procedural, or theoretical bar to aggregate recovery for the class.” 3 Newberg on Class Actions §10.5 at 483-487 (4th ed. 2002). Sampling passes muster under both the Due Process Clause and the Seventh Amendment.
a. Sampling Does Not Violate the Seventh Amendment
The use of aggregated proof, based upon sampling in plaintiffs' damages claim, does not violate a Defendant’s right to a jury trial. See, e.g., Long, 761 F. Supp. at 1326; In re Simon II Litig., 211 F.R.D. 86, 154 (E.D.N.Y. 2002), vacated and remanded on other grounds, 407 F.3d 125 (2d Cir. 2005). The most commonly raised objection to aggregate damage trials is that the procedure violates the defendant’s Seventh Amendment jury trial right by denying the defendant a right to confront each plaintiff about his individual damages. Cimino v. Raymark Indus., Inc., 151 F.3d 297, 321 (5th Cir. 1998); In re Fibreboard Corp., 893 F.2d 706, 709 (5th Cir. 1990). Defendants often contend that individualized discovery and jury trial are necessary because each class member may be differently situated with respect to damages.
However, nothing in the Seventh Amendment gives a defendant an individual right of confrontation. Sampling is appropriate even if the Court were to find that defendant does have a right to try damages individually. As the Long court put it, “the very purpose of a statistical model is to account for individual
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issues.” Long, 761 F. Supp. at 1326. Accordingly, the presence of individual issues does not, in itself, render the use of a statistical model inappropriate under the Seventh Amendment.
b. Sampling Does Not Deprive Defendant of Due Process
Aggregate damages in no way infringe on a defendant’s due process rights. Dellums, 566 F.2d at 189;. The Dellums Court specifically stated, “Nor do we think that determination of damages in this case requires individualization.” Id. The Hilao Court rejected the defendant’s due process challenge, relying on the analysis established in Mathews v. Eldridge, 424 U.S. 319 (1976) for determining whether a procedure by which a private party invokes state power to deprive another person of property satisfies due process.3 Aggregate damages trials using sampling also pass muster under this test. Justice Improved: The Unrecognized Benefits of Aggregation and Sampling in the Trial of Mass Torts, 44 Stan. L. Rev. at 828.
Once aggregate damages are established against the defendants, the problem of allocations among classes and distribution within each class largely becomes a plaintiffs’ problem. In re Simon II Litig., 211 F.R.D. 86, 103 (E.D.N.Y. 2002), vacated and remanded on other grounds, 407 F.3d 125 (2d Cir. 2005). The defendant has no interest in the division of class damages among the class members providing the amount of class-wide damages is accurate. Id. Plaintiffs
3 In Connecticut v. Doehr, 501 U.S. 1 (1991), the Supreme Court refined the third prong of the Mathews test for disputes involving only private parties.
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vote on whether to accept distribution of class damages by exercising (or not exercising) their opt-out rights.
Aggregate proof of a defendant's monetary liability is just as accurate as class treatment of other elements of liability. Long, 761 F. Supp. at 1330. It is not unusual, and probably more common than otherwise in many types of cases, that aggregate evidence of the defendant's liability is more accurate and precise than would be so with individual proofs of loss." Id., citing to Newberg at 349. As the Bell Court observed, “statistical sampling does not dispense with proof of damages but rather offers a different method of proof.” Id., 9 Cal. Rptr. 3d at 574.
The use of sampled data is neither pro-plaintiff nor pro-defendant but favors adjudication on the merits of a legal dispute rather than disposition according to information costs. The use of statistical sampling for both damages and liability is especially effective given the disparity in power between the pretrial detainees, Central Booking and its prison system. Given the number of pretrial detainees, scientifically valid random sampling and statistical analysis are an effective means to bolster representative testimony.
3. Procedures followed in trying class-wide damages to a jury using sampling in Hilao The seminal case for statistical sampling in cases involving non-economic damages is Hilao, 103 F.3d at 774. In Hilao, the Ninth Circuit upheld certification of a damages class of approximately 10,000 Philippine nationals or their estates who sought damages as a result of acts of torture, “disappearance”, or summary execution that occurred over a 14 year period under the regime of
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Ferdinand E. Marcos. The Ninth Circuit approved the court's use of a statistical sample of the class claims in order to compute and award compensatory damages to the class members. The trial was trifurcated into (1) liability (2) punitive damages and (3) compensatory damage phases.
Liability was determined by a jury trial of 22 plaintiffs. In the third phase of the trial (the compensatory damage phase) the Court allowed the jury to consider damages to a random sample of plaintiffs as representative of the injuries suffered by the subclasses. To address plaintiffs’ due process concerns, the individual plaintiffs were given the choice of opting out of the certified class action and proceeding with individual trials.
The district court made the following initial findings: of 10,059 claims, the court ruled that 518 were invalid leaving 9,541 claims. Sampling methodology was then applied to these valid claims. Of these, 137 were randomly selected by computer. An inferential statistician testified that the examination of 137 sample claims would achieve a “95 percent statistical probability that same percentage determined to be valid among the examined claims would be applicable to the totality of the claims filed.” Hilao, at p.782.
A special master was appointed to oversee the depositions of the sample 137 depending on the definition or category in which the claimant fell. The special master then determined the category for that plaintiff based upon definitions established in the liability phase of the trial, for example torture, summary execution, or disappearance. The jury was free to accept, modify, or
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reject the award. Id. The Ninth Circuit held that, given the similarity in damages of the subclasses, the benefit of the statistical sampling method was “enormous” given the prospect of trying 10,000 individual cases. Id. at p.786.
The special master then recommended the amount of damages to be awarded to each claimant, Id. at p.783, by further breaking down the three classes in the liability phase into damage classes. For example, for the torture victims he considered duration of time, length of detention, methods of torture used, and the age of the victim. For those persons who summarily disappeared, the special master considered whether they were first tortured, whether there was actual murder, the family’s anguish, and lost earnings. Id.
Thereafter the statistician in Hilao testified to his methodology and his recommendations of damage awards. Id. at 783. On appeal before the Ninth Circuit, the Estate of Marcos unsuccessfully challenged the statistical methodology employed to determine the class claims.
4. Procedures to be followed in trying class-wide damages to a jury using sampling in this case The following is a summary of Plaintiffs’ proposed procedure for trying damages on an aggregate basis. Plaintiffs can elaborate on the procedure as discovery becomes available and as the Court directs.
¾ Generate a class list for Overdetention Class (including length of overdetention of each class member) and class list of each of the Strip Search Classes using database discovery from Central Booking’s Automated Booking System and other discovery. Bryan Miller’s affidavit
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explains how the number of strip search class members can be established using statistical and other techniques if the search pattern was applied to most or many but not all arrestees. (Declaration at Plaintiffs’ Exhibit # 97, submitted with Document 35 on November 30, 2005; it is not re-filed again here, but is included as an exhibit with the chambers copy)
¾ Statistics expert Richard Berk, Ph. D. (Declaration at Plaintiffs’ Exhibit # 96, submitted with Document 35 on November 30, 2005; it is not re-filed again here, but is included as an exhibit with the chambers copy) selects samples for each class using reliable statistical methods.
¾ Parties conduct discovery of sample plaintiffs under the supervision of a special master.
¾ Medical and psychiatric expert Dr. Susan Fiester (Plaintiffs’ Exhibit # 125, submitted herewith) examines members and samples and makes diagnoses with explanation of factors on which diagnoses based.
¾ Special master makes recommendation on the amount of damages to be awarded each sample plaintiff on the basis of depositions and submissions of the parties.
¾ Jury trial at which plaintiffs’ statistics expert can testify (where evidence supports testimony) that the selection of the random sample met the standards of inferential statistics, that efforts to locate and obtain testimony from the claimants in the random sample “were of the highest standards,” that the procedures followed conformed to the standards of
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inferential statistics, and that the injuries of the random-sample claimants were representative of the class as a whole. ¾ Jury trial at which plaintiffs’ medical psychiatric expert can testify regarding diagnoses and bases of diagnoses. ¾ Jury trial at which testimony of sample plaintiffs and their witnesses is presented. ¾ Jury trial at which special master testifies about his recommendations and report given to jury. ¾ Jury or the Court determines formula or point system for distributing the class damages among class members. Distribution methods are discussed below.
Discovery. Plaintiffs suggest that a statistical model, based on discovery from a random sample, can adequately address the various damages issues. Plaintiffs propose limiting discovery to members of the sample using depositions. In Hilao the discovery from the sample was limited to depositions supervised by the special master. Hilao, at 782.
Class members. All class members for the overdetention class can be readily determined from defendant’s records. Additional discovery is expected to flesh out whether any of the Central Booking search room officers did not follow the practice and procedure of conducting blanket strip searches of arrestees; as for underwear searches, discovery has revealed that recently, at a minimum,
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every male was automatically strip-searched to his underwear, so any male who might be excluded from the full strip search classes will fall into the underwear strip search class.
Distribution of lump sum award. Any award can be allocated among class members based on a per day or per hour amount for Overdetention Class members (including, perhaps, a flat amount for each overdetained person, plus an amount for each additional hour) or a per incident amount for Strip Search Class members. Alternative methods include allowing the jury to set a distribution matrix utilizing a formula or a point system or allowing the court to set the distribution method. In Dellums the jury awarded damages along a sliding scale which took into account the different experiences of different members of the class, without losing administrative feasibility. 566 F.2d at n.6 and at 189. Judge Weinstein in Simon II describes how damage awards in the Agent Orange, Dalkon Shield, and Holocaust litigations, for example, have been appropriately distributed through court fixed and administered schemes. In re Simon II Litig., 211 F.R.D. 86, 103, 110, 147 (E.D.N.Y. 2002), vacated and remanded on other grounds, 407 F.3d 125 (2d Cir. 2005).
Cy pres. Plaintiffs expect to be able to identify and locate most class members using data in defendants’ databases, and through publication and publicity. See J. Douglas Richards, American Antitrust Institute Symposium: Thinking Creatively About Remedies: What Makes an Antitrust Class Action Remedy Successful?: A Tale of Two Settlements, 80 Tul. L. Rev. 621 (December, 2005) (discussing methods of identifying class members using electronic data and
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available remedies). But, Plaintiffs propose that any residue (e.g., funds allocated to class members who cannot be located or de minimis amounts) be paid to a cy pres fund where the unclaimed funds may be distributed for the indirect prospective benefit of the class. See Democratic Cent. Comm. v. Washington Metro. Area Transit Commission, 84 F.3d 451 (D.C. Cir. 1996); In re Airline Ticket Com’n Antitrust Litigation, 268 F.3d 619, 625 (8th Cir. 2001).

VIII.

CONCLUSION

Plaintiffs’ proposed trial plan demonstrates that this case can follow a

discovery plan and be tried in two phases through the use of focused discovery,

testimony, surveys, and aggregate damage awards.

Respectfully submitted,
___________/s/______________ Sean R. Day (Md Bar No. 12831) 8505 Baltimore Avenue • Suite B College Park, Maryland 20740 Phone: 301.220.2270
Respectfully submitted
__________/s/________________ Barrett S. Litt pro hac vice Litt, Estuar, Harrison & Kitson LLP 1055 Wilshire Blvd. Suite 1880 Los Angeles, CA 90017 Tel: 213.386.3114 Fax: 213.380.4585

Respectfully submitted,
__________/s/________________ WILLIAM CLAIBORNE pro hac vice 717 D Street, NW , Suite 210 Washington, DC 20004 Phone 202.824.0700 Fax 202.824.0745
Counsel for the Named Plaintiffs and the Proposed Classes

PLAINTIFF 126-23

PLAINTIFF’S EXHIBIT 127

UNITED STATES DISTRICT COURT OF THE DISTRICT OF COLUMBIA

MARCUS BYNUM, et al. Plaintiffs
v. GOVERNMENT OF THE DISTRICT OF COLUMBIA,
Defendant

Civil Action No: 02-956 (RCL) Next Event: None scheduled

PLAINTIFFS’ PROPOSED TRIAL PLAN

I. INTRODUCTION
This is a §1983 class action case alleging the overdetention of inmates in the DC Jail past
their court ordered release dates (“Overdetention Claim”), and blanket strip searches of inmates
returning from court to the DC Jail after a judge has already ordered their release (“Strip Search
Claim”). This Court certified an Overdetention Class on March 31, 2003 (docket # 69) and a Strip
Search Class on August 11, 2003 (docket # 93).
The Court certified the Overdetention Class as a Rule 23(b)(2) as to the claims of the class members for declaratory or injunctive relief. The Court also certified the damages class under Rule
23(b)(3), and defined the Overdetention Class using the following two-part class definition:
“(a) Each person who has been, is, or will be incarcerated in any District of Columbia Department of Corrections facility in the three years preceding the filing of this action up to and until the date this case is terminated; and (b) who was not released, or, in the future, will not be released by midnight on the date on which the person is entitled to be released by court order or the date on which the basis for his or her detention has otherwise expired.”

0

The Court certified the Strip Search Class under Rule 23(b)(2) as to the claims of the class
members for declaratory or injunctive relief, and as a Rule 23(b)(3) class for monetary relief. The
Strip Search Class was defined using the following two-part class definition:
“Each person who, in the three years preceding the filing of this action, up until the date this case is terminated, has been, is or will be: (i) in the custody of the Department of Corrections; (ii) taken to court form a Department of Corrections facility; (iii) ordered released by the court or otherwise became entitled to release by virtue of the court appearance because the charge on which he had been held was no longer pending or was dismissed at the hearing, was ordered released on his own recognizance, or had posted bail, was sentenced to time served, was acquitted or was otherwise entitled to release; (iv) was not the subject of any other pending case or cases which imposed any condition of release other than personal recognizance; (v) was not the subject of any detainer or warrant; (vi) was returned to the DC Jail or CTF from court, to be processed out of Department of Corrections custody; and (vii) was subjected to a strip search and/or visual body cavity search without any individualized finding of reasonable suspicion or probable cause that he was concealing contraband or weapons; before being released, regardless of whether he was overdetained.”
In the Order certifying the Overdetention Class, the Court also ordered the parties to jointly
submit an agreed-upon proposed order regarding class notification procedures. If no agreement
could be reached on the terms of the proposed order, separate proposed orders were to be submitted
within 30 days. All parties moved the Court to extend the time for submitting proposed notice
procedures for the Overdetention Class until after the Court ruled on plaintiffs’ second motion to
certify the Strip Search Class, and until after plaintiffs submitted a proposed trial plan setting forth
their proposal to try damages using sampling and other statistical methods (docket # 78). The Court
granted the motions (docket # 81).
II. CONSENT SOUGHT BUT NOT OBTAINED
Plaintiffs have tried to discuss the issues set forth in the proposed trial plan with Defendant
District of Columbia through opposing counsel Maria Amato and her supervisor Robert Utiger,
Esq., but have been unable to do so.
1

III. PROPOSED TRIAL PLAN
Plaintiffs hereby present this proposed trial plan (“Proposed Trial Plan”), which explains Plaintiffs’ planned approach to discovery, class notice, and trial. This Proposed Trial Plan is meant to aid the Court in determining effective discovery management, the development of notice procedures, and management of the trial of the case. The Proposed Trial Plan is not necessarily meant to be final in the matters of witnesses or exhibits; expert reports; proposing jury instructions and special verdict forms, or even adopting a particular methodology of determining damages for class members. Moreover, the determination of a trial plan will depend on the Court’s decisions regarding the most efficient and reasonable method for proceeding to trial on a number of discovery matters presently pending. On this basis, Plaintiffs reserve the right to present a revised and more detailed trial plan once discovery is complete and the trial date nears. IV. BIFURCATION OF LIABILITY AND DAMAGES PHASES
Plaintiffs propose that the trial be bifurcated into (1) a liability phase (including determination of injunctive relief) and (2) a damages phase. Rule 42(b). Bifurcation of civil rights class actions into a liability phase and a damages phase is widely recognized and accepted. See, e.g., Berger v. Iron Workers Reinforced Rodmen, Local 201, 170 F.3d 1111 (D.C. Cir. 1999); Neal v. Director of Department of Corrections, 1995 U.S. Dist. LEXIS 11543 (D.D.C. 1995) (Memorandum Opinion IV) (Procedures for Absent Class Members) rev’d on other grounds sub nominee, Bonds v. District of Columbia, 93 F. 3d 801 (D.C. Cir. 1996). Rule 42(b) permits trial of individual, discrete issues. As long as separate juries do not re-examine previously resolved fact determinations, bifurcation does not violate the Seventh Amendment. Robinson v. Metro-North Commuter R.R., 267 F.3d 147, 170 (2d Cir. 2001). This proposal tracks the Court’s orders
2

certifying each of the classes as a Eubanks hybrid class. Eubanks v. Billington, 110 F.3d 87, 96 (D.C.Cir.1997).
The central issues to be determined in the liability phase are: (1) whether the District has a pattern and practice of over detaining inmates past their release dates; (2) whether the District violates the constitutional rights of inmates by overdetaining inmates past their release dates; (3) what length of overdetention constitutes an unconstitutional overdetention; (4) whether the Department of Corrections has a practice/policy of subjecting inmates to blanket strip searches after a judge has ordered their release; and (5) whether the Department of Corrections violates the constitutional rights of inmates by subjecting them to blanket strip searches after a judge has ordered their release. These issues can probably be determined on a motion for summary judgment on the applicable legal standard.
Phase II of the trial will address damages. Plaintiffs propose determining damages (1) in a single, class-wide damages trial using "sampling,” or, alternatively, (2) by mini-trials tried to judges (and magistrates if defendant agrees), or, alternatively, (3) by a claims procedure agreed upon by the parties.
"Sampling," discussed below, is the process of collecting information from fewer than all potential sources. Laurens Walker, Essay: A Model Plan To Resolve Federal Class Action Cases By Jury Trial, 88 Va. L. Rev. 405 (2002). In this context, sampling involves randomly selecting a fraction of the plaintiffs in the class, trying the damages of each plaintiff in the sample to a jury, extrapolating the sampled damage award to determine damages for the class as a whole, and then distributing the class damages among class members according to a formula or point system determined by the jury or the Court.
3

Plaintiffs believe that the damages due the class can be determined in a single jury proceeding. In preparation for the trial, an expert working under the supervision of a special master will generate a random sampling of the class. Through reasonable discovery, defendant can obtain facts relevant to the sample members' experiences during the class period. Using this data, the parties' experts can then extrapolate damages for the entire class. V. NOTICE PROCEDURES
Notice to class members is not required at Phase I for either class because the issue of liability falls under Rule 23(b)(2). Class actions seeking declaratory or injunctive relief under Rule 23(b)(2) are not subject to the individual notice requirements of Rule 23(c)(2). Stolz v. United Broth. of Carpenters and Joiners of America, 620 F. Supp. 396 (D. Nev. 1985).
Notice is required for Phase II because damages are integral to a Rule 23(b)(3) class. Moreover, notice in the case addresses any due process objections class members might have to a class-wide determination of damages. Objecting class members would be allowed to opt out of the class in favor of an individual jury trial on damages. The Court can determine the content of the notice after it rules on the methodology of proving damages.
Plaintiffs submit under separate cover their proposals for notification procedures. VI. PHASE I – TRIAL OF LIABILITY
Determination of liability. Determination of liability can be made either by trial or by motion for summary judgment. The fact that the Department of Corrections had a practice (and then a written policy) of subjecting every single person booked into the DC Jail during the class period to a strip search and visual body cavity search without an individualized finding of reasonable suspicion can be established through a motion for summary judgment based upon concessions by the District made in discovery. Any issues of whether any of those searches could be
4

validated on other grounds (which plaintiffs contend they could not but defendants presumably contend otherwise) would also be resolved. The result would be that the liability phase would determine who was unlawfully strip searched.
For overdetentions, the procedure would be to determine certain issues under special interrogatories from which a determination of the class members who have been overdetained could be made.
Methods of proof. Plaintiffs will prove the District’s liability with evidence based upon declarations of pre-trial detainees, statistical sampling, analysis of the District’s own computer records, deposition testimony and witness testimony.
The use of statistical evidence to prove liability in civil rights cases is well established. Berger v. Iron Workers Reinforced Rodmen Local 201, 843 F.2d 1395, 1413 (D.C. 1998); Davis v. Califano, 613 F.2d 957 (D.C. Cir. 1979) ("statistical proof may alone be used, without presentation of specific instances of discrimination, to establish a prima facie case of employment discrimination"); Mitchell v. Diamond Cab Company of District of Columbia, 2003 U.S. Dist. LEXIS 12492, *25 (D.D.C. 2003) (motion for summary judgment) (collecting cases); Simon II, 2002 U.S. Dist. LEXIS 25632, *156 (E.D.N.Y. Oct. 22, 2002) (citing to extensive body of law review article discussing sampling to prove liability and making point that requiring individual trials on damages allows wrongdoer to avoid responsibility for conduct). Both scholars and courts have recognized that, in many cases, statistical methods actually provide a more accurate form of evidence than individual testimony. Simon II, 2002 U.S. Dist. LEXIS 25632, at *161.
Many categories of federal cases routinely use statistical methods to determine liability and damages. See, e.g., Castaneda v. Partida, 430 U.S. 482, 97 S. Ct. 1272, 51 L. Ed. 2d 498 (1977) (statistical data to prove discrimination in jury selection); Burger (employment discrimination);
5

Zippo Manufacturing Co. v. Rogers Imports, Inc., 216 F. Supp. 670 (S.D.N.Y. 1963) (Feinberg, J.) (survey data in trademark infringement case); Cimino v. Raymark Indus., 751 F. Supp. 649, 659 (E.D. Tex. 1990) (discussing statistics and its applications in federal cases) rev’d, Cimino v. Raymark Indus., Inc., 151 F.3d 297 (5th Cir. 1998). Courts frequently permit evidence of lifeexpectancy or mortality tables when determining damages. See, Ageloff v. Delta Airlines, Inc., 860 F.2d 379 (11th Cir. 1988); Asana v. United States, 616 F.2d 41 (2nd Cir. 1980); Larsen v. International Business Machines Corp., 87 F.R.D. 602 (E.D.Pa. 1980) (use of work-life tables).
Discovery. The databases described in plaintiffs’ motion to compel, other items needed to prove liability such as defendant’s witnesses, and limited discovery on liability of absent class members only, as listed on plaintiffs’ witness list to testify as fact witnesses, would complete the discovery necessary for Phase I. At this point, Defendant has no need to depose absent class members for the liability phase of the trial beyond those on plaintiffs’ witness list. Dellums v Powell, 566 F.2d 167, 187 (D.C. Cir. 1977) (defendant has no absolute right to take discovery from absent class members).
Costs and Attorneys' Fees. Plaintiffs will be entitled to an award of costs and reasonable attorneys' fees for work expended to this date in this litigation should plaintiffs’ prevail at this Phase. Neal v. Director of Department of Corrections, 1995 U.S. Dist. LEXIS 11543 at *14. VII. IMPLEMENTATION OF INJUNCTIVE RELIEF.
Plaintiffs will request an injunction ordering that: ¾ The Department of Corrections release every sentenced prisoner before midnight on the date
his or her sentence expires, and release every pre-trial detainee before midnight on the date when the last outstanding basis for detention expires for him or her;
6

¾ Each month, Defendant file with the Court, and provide to plaintiffs’ counsel, a list of inmates indicating the proposed Release Dates1 for each inmate, a list of inmates released in the previous month, and the Exit Date and Exit Time for each inmate released in the previous month;
¾ The Court order certain prescribed changes to the Jail and Records Office’s release procedures (such as staffing, functioning computerization, and staff training). To the extent the Court orders such changes, each month, Defendant shall file with the Court, and provide to plaintiffs’ counsel, a monthly report on the Jail and Records Office compliance with the order.
¾ Each month, Defendant file with the Court, and provide to plaintiffs’ counsel, a report showing which prisoners and pre-trial detainees were strip searched, when, and at what point during the prisoner/detainee's release process;
¾ Defendant not enforce any District of Columbia statute prohibiting releases of inmates, otherwise entitled to release, for example, between midnight and 8:00 a.m.;
¾ DC Jail refrain from subjecting Strip Search Class members to blanket strip searches after a judge has ordered their release. Gary v. Sheahan, 1998 U.S. Dist. LEXIS 7179 (show cause discussing PI enjoining strip searches of court returns);
¾ Attorney’s fees and costs for the injunctive phase be awarded, as well as monitoring fees for the foregoing.
1 Unless defined herein, capitalized terms in this motion have the same meaning as in the Third Amended Complaint. “Department of Corrections” means District of Columbia Department of Corrections. "Overdetain" means holding a detainee or prisoner in Department of Corrections' custody past the person’s release date. “Release Date” for each detainee or inmate is the day on which the person is entitled to be released by court order or the date on which the basis for his or her detention has otherwise expired. “Exit Date” for each detainee or inmate means the date on which he or she was actually released from the custody of the Department of Corrections. “Exit Time” for each detainee or inmate
7

.Discovery. Plaintiffs may need additional discovery on the issue of injunctive relief. The scope of that discovery can be determined after plaintiffs receive responses to outstanding discovery requests. VIII. PHASE II –DETERMINING COMPENSATORY DAMAGES
A. METHODOLOGY OF DETERMINING COMPENSATORY DAMAGES
Phase II of the trial will focus on class damages. There are three basic methodologies of determining damages in class actions such as this: (1) in a single class-wide damages trial using "sampling,” or, alternatively, (2) by mini-trials tried to judges (and magistrates if defendant agrees), or, alternatively, (3) by a claims procedure agreed upon by the parties. Each of these methods is discussed below. See e.g. Simon II, 2002 U.S. Dist. LEXIS 25632, * 30 (discussing methods used to allocate aggregate damages among claimants).
Plaintiffs propose using the first method, a single trial using "sampling” to try class-wide damages on an aggregate basis to a jury, as the better approach. The use of acceptable sampling techniques, in lieu of discovery and the presentation of voluminous data from the entire class, will produce substantial savings in time and expense. For many class members, sampling techniques may provide the only practicable means to obtain recovery. See Manual for Complex Litigation §21.493, at 101 (3d ed. 1995).
B. TRIAL OF CLASS-WIDE DAMAGES USING “SAMPLING”
1. Aggregate trial
Aggregate trials of non-economic damages in civil rights cases are well established in this
means the time of day on the date on which he or she was actually released from the custody of the Department of Corrections.
8

Circuit. Dellums v Powell, 566 F.2d at 189. In Dellums, the Court of Appeals upheld a jury’s award of a lump sum of compensatory damages, and a distribution matrix of damages for unlawful arrests and illegal detentions based on the arrests. Id. The jury in Dellums decided on a lump sum for a class of protestors arrested without probable cause and illegally detained for varying periods. It then set a schedule according to which damages were assigned to subclasses based upon length of illegal incarceration. The district court then assigned class members to a subclass based upon the detention records of the government. Id. The Dellums Court specifically stated, “Nor do we think that determination of damages in this case requires individualization.” Id.
There is a growing trend in favor of using aggregate damage trials. 3 Newberg on Class Actions §10.5 at 483-487 (4th ed. 2002); Long v. Trans World Airlines, Inc., 761 F. Supp. 1320, 1326 (N.D. Ill. 1991) (court limits discovery to members of a sample of the class and rules plaintiffs can try a class-wide amount for damages including intangible injuries such as pain and suffering to a jury using sampling); Blue Cross & Blue Shield of N.J., Inc. v. Philip Morris, Inc., 133 F. Supp. 2d 162, 169 (E.D.N.Y. 2001); Simon II, 2002 U.S. Dist. LEXIS 25632. See Essay: A Model Plan To Resolve Federal Class Action Cases By Jury Trial, 88 Va. L. Rev. 405.
2. Sampling In General
Sampling involves randomly selecting a fraction of class members, trying the damages of each plaintiff in the sample to a jury, extrapolating from the damages of the class to a lump sum for the class, and then distributing the damages among class members according to a formula, or matrix, or point system determined by the jury, or by the Court. Michael J. Saks & Peter David Blanck, Justice Improved: The Unrecognized Benefits of Aggregation and Sampling in the Trial of Mass Torts, 44 Stan. L. Rev. 815 (1992); 3 Newberg on Class Actions § 10.5 at 483-487. Courts
9

have employed various distribution procedures to allocate class awards to class members, some of which are discussed below.
The most influential case in which tort damages were determined in a lump sum for the entire class in a rule 23(b)(3) class action is Hilao v. Estate of Marcos, 103 F.3d 767, 782 (9th Cir. 1996). In Hilao, working under the supervision of a court appointed special master and aided by a statistics expert, plaintiffs tried the liability and damages claims of approximately 10,000 class members on the basis of a sample of 137 class members chosen by statistical methods. The district court then distributed aggregate damages among the three subclasses based on an average of the representative awards for each subclass. One panel of the Fifth Circuit indicated approval of sampling techniques to determine class-wide tort damages, and even cited to Hilao with approval in In re Chevron U.S.A., 109 F.3d 1016, 1020 (inferences about a group may be drawn from a sample only if the sample is scientifically chosen, because it is the reliability of the statistical method that protects the due process right of the defendant from having to pay a larger award than it owes), citing to Hilao, 103 F.3d at 782-84, 786. Aggregate damage trials using sampling are common in other types of federal cases. Segar v. Smith, 738 F.2d 1249, 1264 (D.C. Cir. 1984) (court calculated back pay and front pay in Title VII case on a class-wide basis using statistical methods); Long, 761 F. Supp. at 1326 (court limits discovery to members of a sample of the class and rules plaintiffs can try a class wide amount for damages including intangible injuries such as pain and suffering to a jury using sampling); In re Sugar Industrial Antitrust Litigation, 73 FRD 322, 353 (E.D. Pa. 1976) (court proposes determining dames in an aggregate class-wide approach using statistical methods); Blue Cross & Blue Shield of N.J., Inc. v. Philip Morris, Inc., 133 F. Supp. 2d 162, 169 (E.D.N.Y. 2001); Simon II, 2002 U.S. Dist. LEXIS 25632, at *187.
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“There is no constitutional, statutory, procedural, or theoretical bar to aggregate recovery for the class.” 3 Newberg on Class Actions §10.5 at 483-487 (4th ed. 2002). Sampling passes muster under both the Due Process Clause and the Seventh Amendment.
a. Sampling Does Not Violate the Seventh Amendment
The use of aggregated proof, based upon sampling in plaintiffs' damages claim, does not violate the Seventh Amendment. Long, 761 F. Supp. at 1326; Simon II, 2002 U.S. Dist. LEXIS 25632, at *187. The most commonly raised objection to aggregate damage trials is that the procedure violates the defendant’s Seventh Amendment jury trial right by denying the defendant a right to confront each plaintiff about his individual damages. Cimino v. Raymark Indus., Inc., 151 F.3d 297, 321 (5th Cir. 1998); In re Fibreboard Corp., 893 F.2d 706, 709 (5th Cir. 1990). Defendants often contend that individualized discovery and jury trial are necessary because each class member may be differently situated with respect to damages.
However, nothing in the Seventh Amendment gives a defendant an individual right of confrontation. Sampling is appropriate even if the Court were to find that defendant does have a right to try damages individually. As the Long court put it, “the very purpose of a statistical model is to account for individual issues.” Long, 761 F. Supp. at 1326. Accordingly, the presence of individual issues does not, in itself, render the use of a statistical model inappropriate under the Seventh Amendment.
Moreover, Fifth Circuit cases invalidating the use of statistics to extrapolate findings of liability from a group of representative plaintiffs to all plaintiffs (in place of individual jury verdicts as to each plaintiff) are based on a peculiar feature of Texas law requiring that causation issues be decided on an individual basis. Cimino v. Raymark Indus., Inc., 151 F.3d 297, 321 (5th Cir. 1998); In re Fibreboard Corp., 893 F.2d 706, 709 (5th Cir. 1990). Any language in Cimino
11

stating that the Seventh Amendment requires one-on-one damages trials with individual jury verdicts as to each plaintiff is dicta because the holding in Cimino on exposure to asbestos and causation was specifically based on Texas state law. This Circuit follows a different rule, and allows damages to be determined on a class-wide basis, Dellums v. Powell, 566 F.2d at n.6 and at 189 (jury awarded damages along a sliding scale which took into account the different experiences of different members of the class, without losing administrative feasibility); Segar v. Smith, 738 F.2d 1249, 1264 (D.C. Cir. 1984) (court calculated back pay and front pay in Title VII case on a class wide basis using statistical methods). Moreover, the difficult causation issue in Cimino and Fibreboard – whether a plaintiff was exposed to asbestos and whether the asbestos or some other agent caused the medical condition – is not present here. In this case, causation is simple and direct. For any person overdetained past midnight on the day of his release, or whatever time is set by the court or the jury as the constitutional threshold, the custom and practice of operating the Department of Corrections without a workable inmate management system caused the overdetention. For any person strip searched, the custom or policy of the Department of Corrections of subjecting inmates to blanket strip searches, after a judge has ordered their release, caused the strip search.
In this Circuit, the fact finder may properly infer emotional distress from factual circumstances and award damages to compensate for that injury. Berger v. Iron Workers Reinforced Rodmen, Local 201, 170 F.3d 1111, 1138 (D.C. Cir. 1999), citing Memphis Community Sch. Dist. v. Stachura, 477 U.S. 299, 311 (1986); Daskalea v. District of Columbia, 227 F.3d 433, 444 (D.C. Cir. 2000) (plaintiff’s mental and emotional distress suffered while in the DC Jail are compensable under §1983, even in the absence of physical injury or corroborating expert testimony to establish the causal link between her treatment in prison and her injuries).
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b. Sampling Does Not Deprive Defendant of Due Process
Aggregate damages in no way infringe on a defendant’s due process rights. Dellums, 566 F.2d at 189. The Dellums Court specifically stated, “Nor do we think that determination of damages in this case requires individualization.” Id. The Hilao Court rejected defendant’s due process challenge relying on the analysis established in Mathews v. Eldridge, 424 U.S. 319 (1976) for determining whether a procedure by which a private party invokes state power to deprive another person of property satisfies due process. Recently, in Connecticut v. Doehr, the Supreme Court has refined the third prong of the Mathews test for disputes involving only private parties. Aggregate damages trials using sampling also pass muster under this test. Justice Improved: The Unrecognized Benefits of Aggregation and Sampling in the Trial of Mass Torts, 44 Stan. L. Rev. at 828.
Once aggregate damages are established against the defendants, the problem of allocations among classes and distribution within each class largely becomes a plaintiff’s problem. Simon II, at *10. The defendant has no interest in the division of class damages among the class members providing the amount of class-wide damages is accurate. Id. Plaintiffs vote on whether to accept distribution of class damages by exercising (or not exercising) their opt-out rights.
Aggregate proof of a defendant's monetary liability is just as accurate as class treatment of other elements of liability. Long, 761 F. Supp. at 1330. It is not unusual, and probably more common than otherwise in many types of cases, that aggregate evidence of the defendant's liability is more accurate and precise than would be so with individual proofs of loss." Id., citing to Newberg at 349.
The use of sampled data is neither pro-plaintiff nor pro-defendant but favors adjudication on the merits of a legal dispute rather than disposition according to information costs. The use of
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statistical sampling for both damages and liability is especially effective given the disparity in power between the pre-trial detainees, the District and its prison system. Given the number of pretrial detainees, scientifically valid random sampling and statistical analysis are an effective means to bolster representative testimony.
3. Procedures followed in trying class-wide damages to a jury using sampling
in Hilao
The seminal case for statistical sampling in cases involving non-economic damages is Hilao, 103 F.3d at 774. In Hilao, the Ninth Circuit upheld certification of a damages class of approximately 10,000 Philippine nationals or their estates who sought damages as a result of acts of torture, “disappearance”, or summary execution that occurred over a 14 year period under the regime of Ferdinand E. Marcos. The Ninth Circuit approved the district court's use of a statistical sample of the class claims in order to compute and award compensatory damages to the class members. The trial was trifurcated into (1) liability (2) exemplary damages2 and (3) compensatory damage phases.
Liability was determined by a jury trial of 22 plaintiffs. In the third phase of the trial (the compensatory damage phase) the Court allowed the jury to consider damages to a random sample of plaintiffs as representative of the injuries suffered by the subclasses. To address plaintiffs’ due process concerns, the individual plaintiffs were given the choice of opting out of the certified class action and proceeding with individual trials.
The district court made the following initial findings: of 10,059 claims, the court ruled that 518 were invalid leaving 9,541 claims. Sampling methodology was then applied to these valid
2 Plaintiffs are not seeking punitive damages in this case because punitive damages do not lie against a municipality.
14

claims. Of these, 137 were randomly selected by computer. An inferential statistician testified that the examination of 137 sample claims would achieve a “95 percent statistical probability that same percentage determined to be valid among the examined claims would be applicable to the totality of the claims filed.” Hilao, at p.782.
A special master was appointed to oversee the depositions of the sample 137 depending on the definition or category in which the claimant fell. The special master then determined the category for that plaintiff based upon definitions established in the liability phase of the trial, for example torture, summary execution, or disappearance. The jury was free to accept, modify, or reject the award. Id. The Ninth Circuit held that, given the similarity in damages of the subclasses, the statistical sampling method was “enormous” given the prospect of trying 10,000 individual cases. Id. at p.786.
The special master then recommended the amount of damages to be awarded to each claimant, Id. at p.783, by further breaking down the three classes in the liability phase into damage classes. For example, for the torture victims he considered duration of time, length of detention, methods of torture used, and the age of the victim. For the those persons who summarily disappeared, the special master considered whether they were first tortured, whether there was actual murder, the family’s anguish, and lost earnings. Ibid.
Thereafter the statistician in Hilao testified to his methodology and his recommendations of damage awards. at p.783. On appeal before the Ninth Circuit, the Estate of Marcos challenged the statistical methodology employed to determine the class claims.
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4. Procedures to be followed in trying class-wide damages to a jury using sampling in this case
The following is a summary of Plaintiffs’ proposed procedure for trying damages on an aggregate basis. Plaintiffs can elaborate on the procedure as discovery becomes available and as the Court directs.
¾ Obtain class list for Overdetention Class (including length of overdetention of each class member) and class list of the Strip Search Class using the database discovery detailed in plaintiffs motion to compel (docket # 97);
¾ Statistics expert Richard Berk, Ph. D.3 selects sample for each class using reliable statistical methods;
¾ Parties conduct discovery of sample plaintiffs under the supervision of a special master; ¾ Special master makes recommendation on the amount of damages to be awarded each
sample plaintiff on the basis of depositions and submissions of the parties ¾ Jury trial at which plaintiffs’ expert can testify (where evidence supports testimony) that the
selection of the random sample met the standards of inferential statistics, that efforts to locate and obtain testimony from the claimants in the random sample "were of the highest standards", that the procedures followed conformed to the standards of inferential statistics, and that the injuries of the random-sample claimants were representative of the class as a whole ¾ Jury trial at which testimony of sample plaintiffs and their witnesses is presented;
16

¾ Jury trial at which special master testifies about his recommendations and report given to jury;
¾ Jury or the Court determines formula or point system for distributing the class damages among class members. Distribution methods are discussed below.
Discovery. Plaintiffs suggest that a statistical model, based on discovery from a random sample, can adequately address the various damages issues. Plaintiffs proposing limit discovery to members of the sample, and to method (such as depositions). In Hilao the discovery from the sample was limited to depositions supervised by the special master. Hilao, at 782.
Class members. All class members for both classes can be determined from defendant’s records. This is not a jury issue.
Distribution of lump sum award. Any award can be allocated among class members based on a per diem amount for Overdetention Class members or a per incident amount for Strip Search Class members. Alternative methods include allowing the jury to set a distribution matrix utilizing a formula or a point system or allowing the court to set the distribution method. In Dellums the jury awarded damages along a sliding scale which took into account the different experiences of different members of the class, without losing administrative feasibility. 566 F.2d at n.6 and at 189. Judge Weinstein in Simon II describes how damage awards in the Agent Orange, Dalkon Shield and Holocaust litigations, for example, have been appropriately distributed through court fixed and administered schemes. 2002 U.S. Dist. LEXIS 25632, at *30.
Cy pres. Plaintiffs propose that any residue (e.g. class shares of class members who cannot be located) be paid to a cy pres fund where the unclaimed funds may be distributed for the indirect
3 See Plaintiffs’ Exhibit 31 to Consent Motion Of All Parties To Defer Filing Proposed Order Regarding Class
17

prospective benefit of the class. See Democratic Cent. Comm. v. Washington Metro. Area Transit Commission, 84 F.3d 451 (D.C. Cir. 1996); In re Airline Ticket Com’n Antitrust Litigation, 268 F.3d 619, 625 (8th Cir. 2001).

IX. CONCLUSION Plaintiffs’ proposed trial plan demonstrates that this case can be manageably tried in two
phases through the use of testimony, surveys, and aggregate damage awards.
WHEREFORE, Plaintiffs respectfully moves this Court to grant their motion.

Respectfully submitted,

Respectfully submitted,

_____________________________ WILLIAM CLAIBORNE D.C. Bar # 446579 Counsel for the Named Plaintiffs and the Classes 717 D Street, NW , Suite 210 Washington, DC 20004 Phone 202/824-0700 Fax 202/824-0745

__________________________ LYNN CUNNINGHAM D.C. Bar # 221598 Counsel for Plaintiffs and the Classes Professor of Clinical Law The George Washington University Law School 2000 G Street, N.W. Washington, D.C. 20052 Phone: (202)994-7659 Fax: (202)994-4693

Respectfully submitted

Respectfully submitted,

_____________________________ Barrett S. Litt, Esq. pro haec vice 3435 Wilshire Boulevard, Suite 1100 Los Angeles, CA 90010 Phone (213)-386-3114 Fax (213)-380-4585

_____________________________ Paul J. Estuar, Esq. pro haec vice 3435 Wilshire Boulevard, Suite 1100. Los Angeles, CA 90010 Phone (213)-386-3114 Fax (213)-380-4585

Notification Procedures To Overdetention Class Members (docket # 78), Affidavit of Richard Berk, discussing sampling and application to this case.
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CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing Motion was mailed by first class mail on September 8, 2003 to:

Robert Utiger, Esq. Senior Litigation Counsel Equity Division 441 4th Street, N.W. Washington, D.C. 20001 (202)724-6642 Counsel for District of Columbia

Maria Amato, Esq. Senior Litigation Counsel Equity Division 441 4th Street, N.W. Washington, D.C. 20001 (202)724-6642 Counsel for District of Columbia

__________________________ WILLIAM CLAIBORNE D.C. Bar # 446579

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Processing Totals for Central Booking & Intake Center Division of Pretrial Detention and Services

Bookings RWOCs Commits RORs

FY 2004 100,848 21,990 (21.8%) 48,825 (48.4%) 29,491 (29.2%)

FY 2005 94,656 20,548 (21.7%) 44,857 (47.4%) 28,831 (30.5%)

FY 2006 95,463 19,714 (20.7%) 45,215 (47.4%) 29,179 (30.6%)

PLAINTIFF 129-001

 </s> IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

ERIC JONES, et al. v.
SUSAN MURPHY, et al.

:

:

:

:

Civil No. CCB-05-1287

:

:

:

MEMORANDUM

Now pending in this long-running civil rights litigation are the motions for summary

judgment filed on behalf of Susan Murphy and William Jednorski, two former wardens of the

Central Booking and Intake Center (“CBIC”) in Baltimore City. The plaintiffs allege violations

of the Fourth Amendment because they were subjected to a blanket policy of “suspicionless”

strip searches before “presentment” to a judicial officer even though they had been arrested for

minor offenses not involving weapons or contraband and were not being admitted to general

population. The defendant wardens deny the existence of a blanket policy, deny they are subject

to supervisory liability, and, at issue for purposes of this opinion, assert the defense of qualified

immunity. For the reasons stated below, considering the unsettled state of the law following the

Supreme Court’s decision in Florence v. Board of Chosen Freeholders, 132 S. Ct. 1510 (2012), the motions for summary judgment will be granted.1

BACKGROUND

Plaintiffs Dana West, Eric Jones, Gary Saunders, Anthony Haig, and Michael

Washington were each arrested and brought to the Baltimore Central Booking and Intake Center

(“Central Booking” or “CBIC”) on charges or in cases not involving weapons, drugs, or felony

1 Presumably, this would require summary judgment in favor of Warden Mitchell Franks as well, although he has not filed a motion for summary judgment while his motion to shorten the class period has been pending.
1

violence at least one time between August 2002 and April 2005. Central Booking is an agency of the Division of Pretrial Detention and Services, which is a division of the Maryland Department of Public Safety and Correctional Services. It opened in 1995 and is the centralized location for booking and processing all arrestees in Baltimore City. (See ECF No. 378, Ex. 9.) Between 2002 and 2008, Central Booking processed an average of approximately 83,372 arrestees per year, or 228 per day. (See Nichols Decl., ECF No. 400-58, Ex. 251, ¶ 4.)
Central Booking is divided into two sections, the booking area and the housing area. The booking area is located on the second floor and consists of a central booking unit, a medical unit, a classification unit, a records unit, court commissioners’ offices, video bail facilities, and a computerized Arrest Booking System. (See Murphy Dep., ECF No. 378, Ex. 12, at 28-29; ECF No. 378, Ex. 9.) It is separate from the housing area, a “maximum security facility” which makes up the third, fourth, and fifth floors and houses male pretrial detainees who have been committed by a court commissioner.2 (Murphy Dep., ECF No. 378, Ex. 12, at 28-29; Smith Dep., ECF No. 400-36, Ex. 205, at 18-19.)
After passing through a metal detector and pat search at the facility’s entrance, every arrestee brought to the booking area goes through a process that includes a brief medical exam, a more thorough search, intake at the booking window, and a fingerprint and photo identification. (See ECF No. 378, Ex. 9, at 16; Wilson Decl., ECF No. 439-1, Ex. 111, ¶ 2.) Arrestees do not enter a “general population” after the initial search during the booking process. (Murphy Dep., ECF No. 400-34, Ex. 202, at 58-59.) Rather, they are held on the booking floor in group holding cells containing up to 20-25 arrestees. (ECF No. 439-1, Ex. 111, ¶ 8.) Arrestees are not segregated within the group holding cells based on charge or criminal history (Id. at ¶ 10.) They are placed in these holding cells at any time after being searched in the search room, including
2 The housing area is not at issue in this case. 2

before going to the booking window, between the booking window and identification, and before or after medical evaluations. (Id. at ¶ 8.) Arrestees remain in group holding cells until presentment before a court commissioner, generally within 24 hours of their arrival at Central Booking. (Murphy Dep., ECF No. 400-34, Ex. 202, at 52.) Once an arrestee has appeared before a commissioner, he is either released or committed to the housing area on floors three, four, and five of Central Booking, i.e. general population. (See id. at 59; Smith Dep., ECF No. 400-36, Ex. 205, at 18.)
Despite the security procedures in place on the booking floor, contraband use and exchange among arrestees is a significant problem. Staff at Central Booking have observed arrestees attempting to bring a variety of contraband into the facility, including guns, knives, razors, drugs, cigarettes, money, and cell phones. (See, e.g., Diggs Dep., ECF No. 378, Ex. 32, at 22, 88-89; V. Irvine Dep., ECF No. 378, Ex. 38, at 60, 79, 84-87; L. Jones Dep., ECF No. 378, Ex. 60, at 24. ) Staff who had conducted naked strip searches identified numerous items they discovered through such searches. For example, one employee found a knife, on one occasion, and drugs, on another, in the rectum of an offender. (V. Irvine Dep., ECF No. 378, Ex. 38, at 8082.) Another employee found drugs on many occasions as well as lighters, money, cigarettes, and razor blades, in the vaginal area of women she searched. (B. Martin Dep., ECF No. 378, Ex. 61, at 28-29, 52, 61.) A third Central Booking staff member reported finding contraband – mostly drugs – on approximately half of the people he searched, including “in their buttocks, [and] under their testicles.” (Reaves Dep., ECF No. 378, Ex. 34, at 19.)
At times, arrestees have been successful at smuggling contraband into Central Booking’s group holding cells. One Central Booking employee reports confiscating cell phones from arrestees in the cells “numerous times.” (Diggs Dep., ECF No. 378, Ex. 32, at 106.) Staff also
3

describe smelling marijuana coming from group holding cells on several occasions. (Id. at 108; V. Irvine Dep., ECF No. 378, Ex. 38, at 82). In one incident, an arrestee was injured by box cutters she had carried into the holding cell. (Stevenson Dep., ECF No. 378, Ex. 58, at 43.) Indeed, the plaintiffs themselves observed contraband use and exchange in the holding cells they shared with other arrestees. Plaintiff Aaron Ross testified that an arrestee in the group cell in which he was held pulled out a marijuana joint and matches and passed the joint around to others in the cell. (Ross Dep., ECF No. 378, Ex. 67, at 116.) Plaintiff Tonia Bowie stated that an arrestee in her holding cell shared drugs hidden in her bra with others in the cell. (Bowie Dep., ECF No. 378, Ex. 65, at 37-39.)3
The presence of drugs and other contraband at an intake facility like Central Booking creates substantial security concerns. Arrestees who use drugs could become so intoxicated that they might be difficult for staff to handle. (Cook Dep., ECF No. 439-4, Ex. 114, at 82.) Arrestees could overdose on drugs or give or sell them to others who might overdose. (Id. at 81.) In addition, arrestees who successfully sneak weapons into the facility could use them to harm other inmates or corrections officers. (Id. at 84.) The defendants have acknowledged, however, that security is less of a concern on the booking floor as compared to the housing area, and that strip searching was not really necessary to preserve security on the booking floor. (See Murphy Dep., ECF No. 400-34, Ex. 202, at 59-60; Jednorski Dep., ECF No. 400-33, Ex. 201, at 77.)
The representative plaintiffs in this case were arrested in Baltimore City without warrants on charges not involving drugs, weapons, or felony violence between August 2002 and April 2005. Each was brought to the CBIC booking floor, where he was forced to either strip naked or drop his underwear, squat, and cough as part of a search before being taken to a group holding
3 Neither Ross nor Bowie represents the “suspicionless strip search” class, as neither alleges being strip searched without reasonable suspicion pursuant to his/her booking at CBIC.
4

cell. (West Dep., ECF No. 378, Ex. 64, at 45; Haig Dep., ECF No. 378, Ex. 66, at 17-18; Saunders Dep., ECF No. 378, Ex. 68, at 24; Washington Dep., ECF No. 378, Ex. 69, at 57-60.) Plaintiff Anthony Haig describes also having to lift his genitalia and spread the cheeks of his buttocks before squatting in the presence of an officer and one other arrestee. (ECF No. 378, Ex. 66, at 17-18.)4 No contraband was found on any of the plaintiffs, nor did the defendants indicate any reason to believe the plaintiffs carried contraband into their holding cells.
According to data from Central Booking’s Automated Booking System (ABS), the representative plaintiffs shared cells with numerous different arrestees while they were held at Central Booking. Dana West shared a group holding cell with at least 55 distinct arrestees upon being booked at CBIC in January 2005. Gary Saunders shared a group holding cell with 20 distinct arrestees in February 2005. Anthony Haig, Michael Washington, and Kevin Adams each shared a cell with 35, 36, and 36 distinct arrestees, respectively, in April 2005. Though the representative plaintiffs (and, by definition, the class) were arrested on minor charges, some of their cellmates had been charged with major offenses ranging from armed robbery to first-degree assault to distribution of cocaine and heroin.5 (See Felder Decl., ECF No. 439, Ex. 116.) All of the plaintiffs were released directly from the booking floor upon presentment before a court commissioner. None was admitted to general population on the upper floors of CBIC.6
The plaintiffs in this case allege that, pursuant to booking at CBIC, each was strip searched without any individualized finding of reasonable suspicion by CBIC employees that he was concealing drugs, weapons, or other contraband. (ECF No. 146, ¶¶ 9, 25-78.) The plaintiffs
4 None of the plaintiffs reported being touched by officers as part of the search. 5 The defendants used information contained in Central Booking’s Automated Booking System to identify other detainees with whom each representative plaintiff shared a group holding cell at Central Booking. (See Felder Decl., ECF No. 439, Ex. 116.) 6 Indeed, approximately seventy-five percent of individuals arrested without a warrant on charges not involving drugs, weapons, or felony violence between 2002 and 2008 were released directly from the booking floor and never entered the general population. (See Nichols Decl., ECF No. 400-58, Ex. 251, ¶ 6.)
5

seek to challenge this alleged practice via a class action lawsuit on behalf of themselves and all other persons similarly situated. (Id. at ¶¶ 1, 9.) On March 19, 2009, prior to Florence, the court certified the following class:
Each person who, during any time from May 12, 2002 until April 30, 2008, was taken to Baltimore Central Booking and Intake Center (a) on charges [or in cases] not involving weapons, drugs, or felony violence, and (b) strip searched (c) prior to or without presentment before a court commissioner or other judicial officer. (ECF No. 271.) The court defined “strip search” for the purpose of class certification as “the removal, pulling down, or rearrangement of clothing for the visual inspection of a person’s genital and/or anal areas, which may also include requiring the person to squat and cough, in the presence of one or more guards.” (Id.)
ANALYSIS Government actors are entitled to qualified immunity from liability for civil damages “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)) (internal quotation marks omitted). In determining whether qualified immunity applies, courts typically undergo a two-step analysis, assessing: (1) “whether the facts that a plaintiff has alleged . . . make out a violation of a constitutional right,” and (2) “whether the right at issue was ‘clearly established’ at the time of a defendant’s alleged misconduct.” Pearson, 555 U.S. at 232 (internal citation omitted). Courts have discretion, however, to decide which of the two prongs should be addressed first. Id. at 236. “To be clearly established, a right must be sufficiently clear that every reasonable official would [have understood] that what he is doing violates that right,” and “existing precedent must have placed the statutory or constitutional question beyond debate.” Reichle v. Howards, 132 S.
6

Ct. 2088, 2093 (2012) (internal quotation marks and citations omitted). Courts should “define the right in light of the specific context of the case, not as a broad general proposition . . . that is, [whether it was] clear to a reasonable officer that the conduct in which he allegedly engaged was unlawful in the situation he confronted.” McKinney v. Richland Cnty. Sheriff’s Dep’t, 431 F.3d 415, 417 (4th Cir. 2005). The determination of whether a right was clearly established is “essentially [a] legal question,” to be made by the court. Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). This court should look to case law from the Supreme Court and the Fourth Circuit in assessing whether a right is clearly established. Edwards v. City of Goldsboro, 178 F.3d 231, 251 (4th Cir. 1999).
At the time of the court’s ruling on the defendants’ motion to dismiss in 2007, and later when the class was certified in 2009, the wardens did not appear entitled to rely on qualified immunity. Under Fourth Circuit law, “the right of those arrested for offenses not likely to involve weapons or contraband to be free from strip searches without any individualized finding of reasonable suspicion appears to be clearly established.” Jones v. Murphy, 470 F. Supp. 2d 537, 547 (D. Md. 2007) (citing Logan v. Shealy, 660 F.2d 1007, 1013 (4th Cir. 1981); Amaechi v. West, 237 F.3d 356, 365 (4th Cir. 2001); Abshire v. Walls, 830 F.2d 1277, 1279-80 (4th Cir. 1987)). The recent decision by the Supreme Court in Florence, however, established that it does not violate the Fourth Amendment to require a strip search of every arrestee who will be admitted to the general population of a jail regardless of the offense for which he is arrested and without the need for individualized suspicion that the arrestee may have contraband or weapons. 132 S. Ct. at 1513-14, 1522.7 In so ruling, the Court relied on its analysis in Bell v. Wolfish, 441 U.S. 520 (1979), and the need for correctional officials managing a detention center or jail to
7 The Court noted the imprecision of the term “strip search” and generally described it as a “close visual inspection while undressed.” 132 S. Ct. at 1513. It may involve exposure of breasts, buttocks, and genital areas but does not, within the scope of Florence, include touching of unclothed areas by the inspecting officer. Id. at 1515.
7

have “substantial discretion to devise reasonable solutions to the problems they face.” 132 S. Ct. at 1515. The Court also explained that “deterring the possession of contraband depends in part on the ability to conduct searches without predictable exceptions,” id. at 1516, and that “deference must be given to the officials in charge of the jail unless there is ‘substantial evidence’ demonstrating their response to the situation is exaggerated.” Id. at 1518.
The plaintiffs in this case point out that, under the class definition, although they had been admitted to CBIC, they had not yet been presented to a judicial officer for a determination of whether they would be admitted to the general jail population, or instead released, possibly even without presentment. Thus, they argue that the Fourth Circuit’s prior case law still applies to their circumstances, or that they fit within the possible “exceptions” acknowledged by Justices Kennedy, Roberts, and Alito. Regarding these “exceptions,” Justice Kennedy noted that the Court was not required “to rule on the types of searches that would be reasonable in instances where, for example, a detainee will be held without assignment to the general jail population and without substantial contact with other detainees.” Id. at 1522. Justice Alito stated “the Court does not hold that it is always reasonable to conduct a full strip search of an arrestee whose detention has not been reviewed by a judicial officer and who could be held in available facilities apart from the general population.” Id. at 1524. And Chief Justice Roberts added “the Court does not foreclose the possibility of an exception to the rule it announces.” Id. at 1523.
Not surprisingly, the arguments by counsel in this case, and the analysis stated in the now numerous opinions which have been issued since Florence, focus on the possible contours of an exception to the rule announced by the Court. The plaintiffs here by definition have not been presented to a judicial officer, and were at some point released from CBIC rather than being admitted to the general jail population, thus satisfying certain aspects of a possible exception.
8

On the other hand, they were held in physical facilities that put them in substantial contact with other detainees, including some who were later admitted to general population, and under circumstances where contraband was apparently available at least on some occasions. Analyzing similar circumstances, a district court in Iowa recently reversed its prior grant of summary judgment in favor of the plaintiffs and entered summary judgment in favor of the defendants as to the suspicionless strip search of detainees who were never admitted to general population but nonetheless on occasion were housed in cells with other detainees or handcuffed together for transportation to court. Rattray v. Woodbury Co., -- F. Supp. 2d --, 2012 WL 6114994, at **16, 21 (N.D. Iowa Dec. 10, 2012).
The question before this court is not whether the plaintiffs’ Fourth Amendment rights were in fact violated but whether, even assuming they fall under an exception to the rule announced in Florence, the right was ‘clearly established” such that “a reasonable person in the official’s position would have known that his conduct would violate that right.” Edwards, 178 F.3d at 251. The court must look to case law from the Supreme Court and Fourth Circuit to make this determination. Id.
It does not appear that the Fourth Circuit has addressed Florence except to note, in an unrelated case, the Court’s holding “that strip searches of any and all arrestees housed in general population of local detention centers and jails are constitutionally permissible.” Bennett v. R&L Carriers, 2012 WL 2354633, at *21 (4th Cir. June 21, 2012). Plaintiffs’ counsel therefore argue that the holding in Logan v. Shealy is still controlling. The difficulty is that the Supreme Court’s opinion in Florence not only overruled some aspects of Fourth Circuit law (on which this court previously relied in denying the motion to dismiss) but in doing so left the contours of any “exception” that would apply to the plaintiffs in this case unclear and open to debate. Simply
9

put, “Florence erased any bright lines that previously existed in this area of Fourth Amendment law regarding searches in a detention facility.” Wamble v. County of Jones, 2012 WL 2088820, at *15 (S.D. Miss. June 8, 2012). Indeed, the divergence of opinions in the recent cases from other districts and circuits cited by both sides in their supplemental memoranda and letters underscores the present lack of a clear test applicable to the specific circumstances of detention practices at CBIC during the years at issue in this litigation.8
Accordingly, without addressing either the wisdom or the constitutionality of a blanket strip search policy at CBIC (if such policy was in place), the court is constrained to grant the individual defendant wardens’ motions for summary judgment on the grounds of qualified immunity.
A separate Order follows.

March 5, 2013

/s/

Date

United

Catherine C. Blake States District Judge

8 It is important to note this case does not involve a strip search at a station house or some other facility where substantial contact with other detainees can be avoided, nor does it involve touching of unclothed areas of the body by correctional officers.
10

 </s> Case 1:05-cv-01287-CCB Document 451 Filed 03/05/13 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

ERIC JONES, et al. v.
SUSAN MURPHY, et al.

:

:

:

:

Civil No. CCB-05-1287

:

:

:

:

:

ORDER For the reasons stated in the accompanying Memorandum, it is hereby Ordered that: (1) the defendants’ motions for summary judgment (ECF Nos. 378 & 379) are Granted;
and (2) counsel should confer and file status reports by March 15, 2013, indicating any
pending motions that may be moot and any motions that still need to be resolved.

March 5, 2013

/s/

Date

United

Catherine C. Blake States District Judge

 </s> Case 1:05-cv-01287-CCB Document 471 Filed 05/23/13 Page 1 of 1

--

Case 1:05-cv-01287-CCB Document 468-2 Filed 05/01/13 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

ERIC JONES, eta/.,

*

Plaintiffs,
V.

*
• Civil No. CCB-05-1287

SUSAN MURPHY, et al.,

*

Defendants.

•

* * ** * •* * * •* * *

ORDER

Upon consideration of Defendants' Motion to Dismiss Claims of Plaintiffs Eric

Jones and David Colyns, and any response; that motion is GRANTED, and it is

ORDERED that Plaintiffs Eric Jones and David Colyns's individual claims against the

Defendants are DISMISSED WITH PREJUDICE.

Dated:

Honorable Catherine C. Blake United States District Judge

 </s> 470 F.Supp.2d 537 (2007)
Eric JONES, et al. v.
Susan MURPHY, et al.
Civil No. CCB-05-1287.
United States District Court, D. Maryland.
January 4, 2007.
53489012 *538 *539 *540 *541 *542 Sean Robert Day, Law Office of Sean R. Day, College Park, MD, Barrett S. Litt, Litt Estuar Harrison Miller and Kitson LLP, Los Angeles, CA, William Charles Claiborne, III, Law Offices of William Claiborne, Washington, DC, for Eric Jones, et al.
Karl Aram Pothier, State of Maryland Office of the Attorney General Public Safety and Correctional Services, Joshua Neal Auerbach, Baltimore City Department Of Law, Baltimore, MD, Kim Yvette Johnson, Laurel, MD, for Susan Murphy, et al.
MEMORANDUM
BLAKE, District Judge.
The plaintiffs in this case bring constitutional claims against the Mayor and City Council of Baltimore ("City"), the Baltimore City Police Department ("BPD"), collectively "the City defendants,"[1] and current and former wardens [2] ("Wardens") of the Central Booking and Intake Center ("CBIC"), collectively "the State defendants,"[3] for alleged mistreatment of people arrested and taken to CBIC for booking and processing. The plaintiffs allege two general areas of unconstitutional treatment of arrestees while at CBIC: strip searches and "over detention". Three motions are now pending before the court: (1) the City defendants' motion to dismiss the third amended complaint; (2) the State defendants' motion to dismiss the third amended complaint or alternatively for summary judgment; and (3) the plaintiffs' motion to deny the State defendants' motion for summary judgment or alternatively to permit discovery. These motions have been fully briefed, and pursuant to Local Rule 105.6, no hearing is necessary. For the reasons set forth below, the State defendants' motion will be treated as a motion to dismiss and will be denied, with certain exceptions; the City defendants' motion to dismiss will be granted in its entirety.
BACKGROUND
The plaintiffs bring this case as a class action, with a proposed class period of May 12, 2003 until final judgment in this case, although no motion for class certification has yet been filed. There are eight named plaintiffs: (1) Eric Jones, arrested for second degree assault and false imprisonment (3d Am.Compl. ¶ 33); (2) Dana West, arrested for leaving the scene of an accident (id. at ¶ 25); (3) Gary Saunders, who has multiple arrests during the proposed class period, including but not limited to misdemeanor theft, trespassing, and open alcohol containers, and has been arrested more than fifty times since CBIC opened in 1995 (id. at ¶¶ 50-51); (4) Anthony Haig, who was arrested for re-selling Orioles tickets and failed to appear for his court hearing, thus there is an active bench warrant for his arrest (id. at ¶¶ 60, 69); (5) Michael Washington, arrested for public urination[4] (id. at ¶ 70); (6) 543 Kevin Adams, arrested for *543 an open alcohol container (id. at 11 79); (7) Tonia Bowie, arrested for driving with a suspended license (id. at ¶ 42); and (8) David Colyns, arrested for possessing a pocket knife and needle paraphernalia (id. at ¶ 46).
The plaintiffs propose five classes: (1) the suspicionless strip search[5] class, consisting of those who have been or will be arrested for crimes not involving weapons, drugs, or felony violence, who were strip searched by CBIC

employees without any individualized finding that they were harboring weapons, drugs, or other contraband[6] (id. at ¶ 9); (2) the non-private strip search class, consisting of those who have been or will be subjected to strip searches at CBIC with other arrestees present[7] (id. at ¶ 12); (3) the equal protection strip search class, consisting of male arrestees strip searched at CBIC while female arrestees are not[8] (id. at 11 14); (4) the underwear strip search[9] class, consisting of male arrestees subjected to an underwear strip search while at. CBIC while female arrestees are not[10] (id. at ¶ 16); and (5) the over detention class, consisting of those arrested without warrants who have been or will be detained for an unreasonable length of time (more than 48 hours) before presentment to a judicial officer for a determination of probable cause[11] (id. at ¶ 18). Plaintiff Eric Jones also brings an individual claim against former Warden Murphy and the City defendants based on being detained for more than 36 hours prior to presentment. (Id. at ¶¶ 346-47, 358.)
Each class, as well as Plaintiff Jones, brings claims against both the State and City defendants. The plaintiffs' general theories are as follows: CBIC has both a policy and a practice of unconstitutional strip searches, as well as a practice of unconstitutional over detentions. The State defendants are liable both for establishing this policy and for being deliberately indifferent to their staffs unconstitutional practices. (Id. at ¶¶ 151-65, 173-81.) These constitutional violations were and are known to City defendants, who nonetheless have continued to transport arrestees there rather than pursuing alternatives, such as issuing citations for minor offenses instead of making arrests. (Id. at ¶¶ 127, 165-72, 182-86.) Such aggressive arrest policies and practices result in large numbers of arrestees being taken to CBIC, thereby exacerbating its already, overcrowded conditions. (Id. at ¶¶ 110-18.) The City defendants are thus liable under a theory of "entrustment liability", as they have placed arrestees into the 544 custody of an entity where the constitutional violations *544 were known to them. (Id. at ¶¶ 167-72,182-86.)
All claims are brought under 42 U.S.C. § 1983, and the plaintiffs seek both damages and equitable relief. Claims against the State defendants regarding suspicionless strip searches, non-private strip searches, and over detentions (Counts 1, 2, 4, 9[12]) allege violations of the Fourth Amendment. (Id. at ¶¶ 251, 264, 291, 351.) Claims against the City defendants in these areas (Counts 5, 6, 8,10), allege violations of the Fourth and Fourteenth Amendments. (Id. at ¶¶ 311, 322, 344, 366.) Equal protection claims[13] against the State defendants (Counts 3, 11) are brought under the Fourteenth Amendment (id. at ¶¶ 285, 378), while equal protection claims against the City defendants (Counts 7, 12) are brought under the Fourth and Fourteenth Amendments (id. at ¶¶ 333, 391).
ANALYSIS
"The purpose of a Rule 12(b)(6) motion is to test the sufficiency of a complaint; importantly, a Rule 12(b)(6) motion does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir.1999) (internal quotation marks and alterations omitted). When ruling on such a motion, the court must "accept the well-pled allegations of the complaint as true," and "construe the facts and reasonable inferences derived therefrom in the light most favorable to the plaintiff." Ibarra v. United States, 120 F.3d 472, 474 (4th Cir.1997). Consequently, a motion to dismiss under Rule 12(b)(6) may be granted only when "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); see also Edwards, 178 F.3d at 244. To survive a motion to dismiss, however, a complaint must "in light of the nature of the action . . . sufficiently allege each element of the cause of action so as to inform the opposing party of the claim and its general basis." Chao v. Rivendell Woods, Inc., 415 F.3d 342, 348 (4th Cir.2005). In addition, because the court is testing the legal sufficiency of the claims, the court is not bound by the plaintiffs legal conclusions. See, e.g., Young v. City of Mount Ranier, 238 F.3d 567, 577 (4th Cir.2001) (noting that the "presence . . . of a few conclusory legal terms does not insulate a complaint from dismissal under Rule 12(b)(6)" when the facts alleged do not support the legal conclusions).
State Defendants' Motion to Dismiss or Alternatively for Summary Judgment
Strip Search Claims (Fourth & Fourteenth Amendment Violations)

The strip search claims are not subject to dismissal, as the plaintiffs state claims for which relief could be granted. [14]See Amaechi v. West, 237 F.3d 356, 364-65 (4th Cir.2001) (holding unconstitutional the strip search of an 545 arrestee for a noise violation who did not pose a danger to the officers) (citing Logan v. Shealy, 660 F.2d *545 1007, 1013-14 (4th Cir.1981) (holding blanket strip search policy regardless of underlying offense unconstitutional and deciding that "as a matter of law, no police officer in this day and time could reasonably believe that conducting a strip search in [a non-private area] . . . is a constitutionally valid [search].")); Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1274 (7th Cir.1984) (strip searching all women but not similarly situated men violates Equal Protection Clause).
Over Detention Claims (Plaintiff Jones and Named Plaintiffs)
Jones now brings individual counts against both the City and State defendants for unreasonably long detention, alleging that he was held for "at least 36 hours after his arrest without presentment." (3d Am.Compl. ¶¶ 40.) He is no longer a named plaintiff for the over detention claims. (Id. at ¶¶ 3-4.) The six named over detention plaintiffs all allege that they were detained for more than 48 hours without presentment following their arrests. (Id. at ¶ 18.) Both Jones and the named plaintiffs state claims for which relief could be granted; indeed, the Wardens do not specifically contest this. See County of Riverside v. McLaughlin, 500 U.S. 44, 56-57, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991) (establishing that presentment within 48 hours of arrest is presumptively constitutional but presentment within that time could still be found unconstitutional depending on the circumstances).
Supervisory Liability Under § 1983
The Wardens argue that as there is no respondeat superior under § 1983, their liability for actions of CBIC employees can only rest upon a supervisory liability theory. (State Defs.' Mot. Dismiss 3d Am. Compl.[15] at 8-9.) Supervisory liability may attach under § 1983 if a plaintiff can establish:
(1) that the supervisor had actual or constructive knowledge that his subordinate was engaged in conduct that posed "a pervasive and unreasonable risk" of constitutional injury to citizens like the plaintiff; (2) that the supervisor's response to that knowledge was so inadequate as to show "deliberate indifference to or tacit authorization of the alleged offensive practices[]"; and (3) that there was an "affirmative causal link" between the supervisor's inaction and the particular constitutional injury suffered by the plaintiff.
Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir.1994) (internal citations omitted). The Wardens contend that the plaintiffs' pleading is "devoid of any facts supporting its many conclusory assertions" regarding the three elements of supervisory liability, thus it should be dismissed for failing to state a claim. (State Defs.' Mot. Dismiss at 8.)
Except in very limited circumstances, "the Federal Rules of Civil Procedure do not require a claimant to set out in detail the facts upon which he bases his claim," Conley, 355 U.S. at 47, 78 S.Ct. 99, and a complaint need only satisfy the "simplified pleading standard" of Rule 8(a)(2), Swierkiewicz v. Sorema N.A., 534 U.S. 506, 513, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002). The Fourth Circuit has construed this standard as follows: "a complaint meets [Federal Rule of Civil Procedure] 8's requirements if, in light of the nature of the action, the complaint sufficiently 546 alleges each element of the cause of action so as to inform the *546 opposing party of the claim and its general basis." Chao, 415 F.3d at 348.
The plaintiffs have made sufficient allegations of supervisory liability under the Fourth Circuit's requirements to survive this motion to dismiss.[16] First, the initial element of Shaw requires that a supervisor have knowledge (actual or constructive) of his subordinate behaving in a way that posed "`a pervasive and unreasonable risk' of constitutional injury." 13 F.3d at 799 (internal citations omitted). The subordinate's conduct must be "'widespread"' or, if not, it must have occurred on "`several different occasions"'. Randall v. Prince George's County, 302 F.3d 188, 206 (4th Cir.2002) (internal citations omitted). Constructive notice can be alleged in multiple ways, including the existence of written reports of conditions at a detention facility, or a supervisor's high level of responsibility coupled with the violations alleged to have occurred on her or his watch. See Slakan v. Porter, 737 F.2d 368, 374-75 (4th Cir.1984). In addition to alleging generally that the Wardens had actual and constructive notice, the plaintiffs specifically allege that widespread deficiencies at the, facility with respect to booking and managing

inmates were documented in a series of reports, newspaper articles, and court cases dating back many years. (3d Am.Compl. ¶¶ 131.) They further note that the City, the Wardens' co-defendant in this suit, characterized CBIC "as `dysfunctional' and lacking `appropriate or adequate management systems and practices to assure performance and accountability" in its complaint in Rodney, the state court challenge to over detention at CBIC. ( Id. at ¶ 134.) The plaintiffs also thoroughly set out allegations regarding the Wardens' authority and various duties of training, supervising, disciplining, and formulating and implementing policy (id. at ¶¶ 142-46), as well as the widespread violations at CBIC (id. at ¶¶ 135, 147-64), thereby alleging constructive notice through this avenue as well. Therefore, the plaintiffs have pled facts sufficient to satisfy the first element of Shaw.
Second, "that the supervisor's response to that knowledge was so inadequate as to show `deliberate indifference to or tacit authorization of the alleged offensive practices,'" is also sufficiently supported in the third amended complaint. Shaw, 13 F.3d at 799 (internal citations omitted). Under Shaw, "[a] plaintiff may establish deliberate indifference by demonstrating a supervisor's `continued inaction in the face of documented widespread abuses," thus a plaintiff must allege facts supporting known widespread abuse coupled with supervisory nonresponsiveness to meet the pleading requirements on these factors. Id. (internal citations omitted). The plaintiffs have alleged that the abuses were indeed documented and widespread, as discussed with respect to the first Shaw factor, and that the Wardens failed to take measures to stop either the over detention or the strip searching despite having the power to do so. (See, e.g., 3d. Am. Compl. ¶¶ 135 (widespread nature of violations), 147-50 (over detention), 151-64 (strip searching)). Therefore, Plaintiffs have alleged facts sufficient to satisfy this prong of Shaw.
Third, "that there was an `affirmative causal link' between the supervisor's inaction and the particular 547 constitutional *547 injury suffered by the plaintiff," is also adequately supported in the complaint. Shaw, 13 F.3d at
799 (internal citations omitted). A supervisor "is liable for the natural consequences of his actions.'" Id. at 800 (internal citations omitted).[17] For each alleged constitutional violation, the plaintiffs allege that the wrongs were inflicted by CBIC staff. (See, e.g., 3d Am. Compl. at ¶¶ 27-31, 35-40, 43-44, 47-48, 52-58, 61-67, 71-77, 80-84.) As set forth in the analysis of the first, and second prongs of Shaw, the plaintiffs allege that the Wardens had actual or constructive knowledge of such practices and did not stop them. There is thus a casual link alleged between the Wardens' allowing such practices to continue and the constitutional harms suffered by the plaintiffs as a result of these practices. The defendants' motion to dismiss based on failure to state a claim of supervisory liability will thus be denied.
Qualified Immunity
The Wardens also claim qualified immunity with respect to all allegations against them. Courts should attempt to resolve questions of qualified immunity as early in litigation as possible in order to spare those shielded by it "from the burdens of litigation". Pritchett v. Alford, 973 F.2d 307, 313 (4th Cir. 1992). The relevant test requires "(1) identification of the specific right allegedly violated; (2) determining whether at the time of the alleged violation the right was clearly established; and (3) if so, then determining whether a reasonable person in the [government official's] position would have known that doing what he did would violate that right." Id. at 312. The reasonableness standard here is an objective test. Id. This analysis must be done "`at a high level of particularity", see Amaechi, 237 F.3d at 362 (citing Edwards, 178 F.3d at 250-51), thus the court must carefully consider whether each of the five alleged violations was prohibited by clearly established law such that a reasonable official in the Wardens' position would have known that the alleged policies and actions were unconstitutional.
First, the right of those arrested for offenses not likely to involve weapons or contraband to be free from strip searches without any individualized finding of reasonable suspicion appears to be clearly established. See Logan, 660 F.2d at 1013 (strip searching must be reasonable under the circumstances and was not reasonable when done to arrestee whose offense was not likely to involve weapons or contraband); Amaechi, 237 F.3d at 365 ("because West had no reason to believe that Amaechi posed a danger to the officers, and because Amaechi was arrested for a misdemeanor noise violation, West should have known that his search of Amaechi similarly was unjustified and therefore unconstitutional."); Abshire v. Walls, 830 F.2d 1277, 1279-80 (4th Cir.1987) (citing Logan and stating "the standard in this circuit for judging the constitutionality of a strip search of a pre-trial detainee is, firmly established"). Even more specifically, it seems clear that it was not objectively reasonable for

the Wardens to believe that a blanket strip search policy, was lawful, especially when their position of authority is considered. See Logan, 660 F.2d at 1013-14 (explaining that "[a]n indiscriminate strip search policy routinely 548 applied to detainees [whose underlying offense is *548 unlikely to involve weapons or contraband] cannot be constitutionally justified . . ." and distinguishing the reasonableness of a policy-setting sheriff having believed a policy to be, constitutional from that of an implementing deputy). See also Smith v. Montgomery County, 643 F.Supp. 435, 439-43 (D.Md.1986) (holding that strip searching "all felony arrestees, and all temporary detainees arrested for misdemeanor offenses that involve weapons or contraband" was constitutional but explaining that blanket strip search policy regardless of underlying offense was unconstitutional).
Second, being strip searched in a non-private setting also violates what, appears to be a clearly established right in the Fourth Circuit, and it was not reasonable for the Wardens to believe otherwise. See Amaechi, 237 F.3d at 364 ("we have repeatedly emphasized the necessity of conducting a strip search in private.").
Third, the right of males to be free from being strip searched (either fully or down to their underwear) while similarly situated females are not appears to be clearly established. Although there is no Supreme Court or Fourth Circuit case directly on point, this does not mean that the right cannot be clearly established, as the defendants suggest it does. (State Defs.' Mot. Dismiss at 18.) A right can be clearly established if it is "manifestly included within more general applications of the core constitutional principle evoked.'" Waterman v. Batton, 393 F.3d 471, 476 (4th Cir.2005) (quoting Pritchett, 973 F.2d at 314). Whether a right has been clearly established, either through cases directly on point or by being encompassed within a core principle, may be found by looking either to "controlling authority in the jurisdiction in question or . . . a `consensus of cases of persuasive authority such that a reasonable officer could not have believed that his actions were lawful.'" Waterman, 393 F.3d at. 476 (quoting Wilson v. Layne, 526 U.S. 603, 617, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999)).
First, there are cases from other jurisdictions that have addressed the issue of strip searching one gender but not the other and have agreed that it is unconstitutional. See Mary Beth G., 723 F.2d at 1273-75 (rejecting the city's purported rationales for strip searching women but not men); Ford v. City of Boston, 154 F.Supp.2d 131, 150-51 (D.Mass.2001) (holding that government failed to meet its burden for gender-based classification, citing Mary Beth G.); see also Gary v. Sheahan, 1998 WL 547116 *5-10 (N.D.Ill. 1998) (not reported) (finding policy of strip searching women only violated Equal Protection Clause and ordering defendant to adopt remedy, citing Mary Beth G). These cases may be said to constitute a "consensus of persuasive authority".
The second, and arguably stronger, approach given the relatively small number of cases specifically on this topic, is that taken recently by the United States District Court for the District of Columbia in which the right to be free from gender-based strip searches was found to be clearly encompassed by equal protection principles set out in controlling cases.[18] In Johnson, et al. v. District of Columbia, et al., 2006 WL 3313754 (D.D.C. Nov.14, 2006) (Collyer, J.), a case alleging a policy of strip searching all female pre-presentment arrestees but not males, id. at 549 50, the *549 court denied dismissal of the plaintiffs' equal protection claims despite the qualified immunity defense asserted by the former U.S. Marshal, id. at 51. The court explained:
Although there are no D.C. Circuit opinions addressing the exact conduct alleged here, relevant Supreme Court authority provides sufficiently clear guidance to government officials regarding the proper scope of strip searches of arrestees such as the putative class members [female prepresentment arrestees]. See Bell v. Wolfish, 441 U.S. 520, 558-60, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) (establishing a balancing test to determine whether a strip search is valid under the Fourth Amendment); U.S. v. Virginia, 518 U.S. 515, 531, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996) (holding that governmental " discrimination between males and females violates Equal Protection unless the government shows an "exceedingly persuasive justification" for the disparate treatment). Based on these authorities, the Court finds that it would have been clear to any reasonable official in former Marshal Dillard's position that a blanket strip search policy under which all female 0907 but not male 0907 arrestees were strip searched, regardless of the offenses with which they were charged or any individualized suspicion that they were concealing contraband, was unconstitutional under the Fourth and Fifth[19]Amendments.

Id. at 50-51 (parts of internal citations omitted; italics in original). See also Mary Beth G., 723 F.2d at 1274 (relying on Supreme Court law to hold that a gender-based strip search policy was subject to scrutiny under the Equal Protection Clause). Therefore, the right to be free from gender-based strip searches was clearly established in 2003.[20]
With respect to the over detention claims, being detained for an unreasonable length of time (more than 48 hours) without presentment is a clearly established violation of constitutional rights. See McLaughlin, 500 U.S. at 56-57, 111 S.Ct. 1661. McLaughlin further established that the 48 hour threshold affects which party carries the burden, but does not automatically immunize pre-presentment detentions lasting less than 48 hours. See id. Given that the facts of plaintiff Jones' detention have not yet been established, it would be premature to grant defendants qualified immunity because Jones could still "prove that his . . . probable cause determination was delayed unreasonably." Id. at 57, 111 S.Ct. 1661.
The qualified immunity determination with respect to all strip search and over detention claims (both the named plaintiffs' and Jones') thus will ultimately turn on the development of the factual record. In conclusion, there are no qualified immunity grounds that bar proceeding with all claims against the Wardens at this time, although the issue may be raised again, if warranted, on summary judgment.
Claims Against Warden Franks in His Individual Capacity
The Wardens point out, and the plaintiffs apparently concede, that there is no named plaintiff who claims to have 550 suffered a constitutional violation during Warden *550 Franks' tenure. (Pls.' Opp'n State Defs.' Mot. Dismiss at
25-28.) The defendants therefore ask that claims against Franks in his individual capacity be dismissed. (State Defs.' Mot. Dismiss at 20.) Despite the likely truth of the plaintiffs' contention that they will find a named plaintiff as litigation proceeds, they cannot bring § 1983 claims for damages against Franks without identifying a plaintiff who states a cognizable claim against him. All claims against Warden Franks in his individual capacity[21] will therefore be dismissed.[22]
Plaintiffs' Standing to Obtain Injunctive and Declaratory Relief
The Wardens argue that the plaintiffs do not have standing to sue them in their official capacities for prospective injunctive relief because the plaintiffs' assertion that they are "reasonably likely to be re-admitted" 0907 i.e. arrested again 0907 is insufficient. (State Defs.' Mot. Dismiss at 3-6.) To have standing to obtain equitable relief under § 1983, a plaintiff must make "a showing of irreparable injury, a requirement that cannot be met where there is no showing of any real or immediate threat that the plaintiff will be wronged again 0907 a `likelihood of substantial and immediate irreparable injury.'" City of Los Angeles v. Lyons, 461 U.S. 95, 111, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983) (internal citations omitted). The plaintiffs argue that named plaintiffs Saunders and Haig have standing because Saunders' history shows he is very likely to be re-arrested, and Haig has an outstanding bench warrant for his arrest. (3d Am.Compl. ¶¶ 59, 69, 393.) I will address the situations of Saunders and Haig separately.
Saunders has indeed been frequently admitted to CBIC, and common sense suggests that he is likely to be arrested and taken there again. Courts generally are reluctant to find the requisite level of likelihood of future harm when standing is asserted based on repeat run-ins with the law or on being arrested again. See, e.g., Honig v. Doe, 484 U.S. 305, 320, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988); O'Shea v. Littleton, 414 U.S. 488, 496-98, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974); Lyons, 461 U.S. at 103, 103 S.Ct. 1660; Slade v. Hampton Roads Regional Jail, 407 F.3d 243, 249 (4th Cir.2005); Lynch v. Leis, 382 F.3d 642, 647-48 (6th Cir.2004). The existence of a class, however, could alter the analysis. See Slade, 407 F.3d at 249 (distinguishing application of the "capable of repetition, yet evading review" doctrine in class actions and individual actions) (internal quotations omitted); see also id. at n. 4 (noting possible exception to mootness principles "where the plaintiff introduces evidence that he has been detained `on more than one occasion'") (citing Demery v. Arpaio, 378 F.3d 1020, 1027 (9th Cir. 2004) (creating such an exception)); see also Lewis v. Tully, 99 F.R.D. 632, 639, 644-45 (N.D.Ill.1983) (explaining that "though the issues of `mootness' and `standing' . . . typically arise at different stages of a lawsuit, the essential inquiry is indistinguishable" and finding standing for injunctive relief for class of prisoners because "new persons with `live' claims for injunctive relief . . . are constantly entering the category of those subject to defendants' 551 alleged practice," irrespective of *551 named plaintiffs ability to obtain standing for injunctive relief individually)

(internal citations omitted).[23] The issue of Saunders' standing is thus properly considered in the context of class certification, if such a motion is made, rather than at the present time.
Haig is in a different situation due to the outstanding bench warrant for his arrest for failing to appear at his court hearing, for re-selling Orioles tickets. (3d Am.Compl. ¶¶ 60, 69.) Haig currently resides in California (id. at cover page), where the Governor has a statutory duty "to have arrested and delivered up to the executive authority of any other State any person charged in that State with treason, felony, or other crime, who has fled from justice and is found in this State" (Cal.Penal Code § 1548.1 (2006)) (italics added). Due to his failure to appear at his court hearing in Maryland and his current residence in California, Haig falls, into the category of persons whose arrest and delivery to the state in which the crime was committed is legally mandated. It could be argued that California law enforcement is unlikely to prioritize finding those charged with minor offenses in another state; however, this court must assume that a state's executive will follow the law rather than speculate about what priorities a governor will set for law enforcement. Under California law, Haig's arrest and return to Maryland is required and may happen at any moment. Therefore, Haig may be said to live in apprehension of a real and immediate threat of being returned to Maryland and re-admitted to CBIC.[24] Once at CBIC, it is alleged that Haig, as a male arrestee, will be subject to a full strip search in a non-private situation pursuant to CBIC's policies. Accepting the plaintiffs' allegations as true, as I must for the purposes of a 12(b)(6) motion, it follows that Haig faces a real and immediate threat of substantial and irreparable harm to his Fourth and Fourteenth Amendment rights. This case is thus distinguishable from Lyons, in which the plaintiff failed to establish a sufficient likelihood either of re-arrest or of being subject to the alleged unconstitutional behavior (choke hold) were he to be re-arrested. See Lyons, 461 U.S. at 105-06, 103 S.Ct. 1660 (explaining that plaintiff failed to allege "that he would have another encounter with the police . . . [and] to make the incredible assertion . . . that all police officers in Los Angeles always choke any citizen with whom they happen to have an encounter . .") (italics in original). Haig has sufficiently alleged both that he is substantially likely to have another experience at CBIC and that this will involve the alleged constitutional violations, therefore he has standing to sue for equitable relief on at least some of the plaintiffs' claims.[25]
552 *552 As to Haig, because the likelihood of his future admission to CBIC is based on an outstanding warrant, he would not be subject to over detention under the plaintiffs' theories because those claims relate to people arrested without warrants who are over detained prior to presentment. Furthermore, Haig has not alleged that he was subject to an underwear strip search in the past, and the plaintiffs allege that the general CBIC policy is to subject males to a full strip search. (3d Am. Compl. ¶ 154.) While no named plaintiffs thus clearly have standing to bring suit for equitable relief with respect to the over detention or underwear strip search claims, I reserve for future consideration the possibility that if classes are certified in this case, there might be additional arguments, discussed above, for finding standing with respect to all claims.
City Defendants' Motion to Dismiss for Failure to State a Claim
The City defendants do not dispute that they are subject to suit under § 1983. See Monell v. Dept. Soc. Serv., 436 U.S. 658, 690, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); Chin v. City of Baltimore, 241 F.Supp.2d 546, 548 (D.Md.2003) (Blake, J.) (holding that the BPD may be sued under § 1983). Rather, they claim that the plaintiffs seek to hold them responsible for circumstances they do not and cannot control 0907 namely, the policies and practices at CBIC. (Mem. Supp. City Defs.' Mot. Dismiss at 12.) This interpretation of the plaintiffs' arguments, however, is inaccurate. The plaintiffs do not seek to impose liability on the City defendants for CBIC's actions, but for the City and the BPD's own actions: taking arrestees to CBIC despite having knowledge of the allegedly unconstitutional, strip searches and over detentions at CBIC. The plaintiffs thus seek to bring claims against the City defendants under the theory of "entrustment liability", as discussed below.
"Entrustment Liability "
An "entrustment liability" approach has been neither adopted nor rejected in the Fourth Circuit. It has been accepted in other circuits, although not always labeled as such. See Warren v. District of Columbia, 353 F.3d 36, 39 (D.C.Cir.2004) (holding that allegations that District had or should have had knowledge of alleged constitutional violations suffered while plaintiff was incarcerated in a private prison operated pursuant to a contract with the District were sufficient to state a claim); Baker v. District of Columbia, 326 F.3d 1302, 1306-07

(D.C.Cir.2003) (holding that allegations of deliberate indifference on the part of the municipality which was responsible for sentencing a prisoner toward known constitutional violations at another state's facility which was detaining the prisoner were sufficient to survive 12(b)(6) motion); Young v. City of Little Rock, 249 F.3d 730, 736 (8th Cir.2001) ("Strip searching of prisoners is routine procedure, and the jury could reasonably infer that the City 553 knew that a person entering the jail . . . *553 would be strip searched . . . in these circumstances, it is far from unfair to attribute to the City the policies routinely used by the County jail in the housing and processing of City prisoners."). While the formulations differ slightly, the underlying premise is that "a municipal body that maintains a policy of entrusting its arrestees to a jail[26] with knowledge of the unconstitutional treatment those persons will face upon their confinement there can be liable under § 1983." Powell v. Barrett, 376 F.Supp.2d 1340, 1355 (N.D.Ga. 2005).[27] Liability thus requires that the accused municipality have both a policy of entrustment and knowledge of constitutional violations at the detaining entity. Id. at 1355.
Even assuming the theory of "entrustment liability" would be recognized in the Fourth Circuit, however, the plaintiffs here are unable to state claims under it upon which relief could be granted. Implicit in the policy component required to impose liability is that the entrusting entity has formulated the policy; that is, that it had a choice over whether to follow the challenged course of action. See Powell v. Barrett, 2005 U.S. Dist. LEXIS 685, *37-38 (N.D.Ga.2005) (explaining that the entrusting entity cannot be liable "for constitutional injuries suffered by a detainee unless it had the authority to choose whether to entrust such a person to the facility.") (unpublished) (internal citations omitted). The City defendants persuasively argue that they have no choice because they are not legally permitted to maintain their own facility; therefore it would be unfair to hold them liable for using the facility they are required to use by state law. (Mem. Supp. City Defs.' Mot. Dismiss at 9; City Defs.' Reply Mem. Supp. Mot. Dismiss at 4-5.) See also Md.Code Ann., Corr. Servs. §§ 5-102, 201, 401, 404 (2006). The steps which the plaintiffs contend the City defendants could have taken to prevent violations of arrestees' constitutional rights do not suggest the existence of choice sufficient to give rise to liability. For instance, the plaintiffs argue that the City defendants could have filed a lawsuit against CBIC. (Pls.' Opp'n Mot. Dismiss at 35.) In fact, the City attempted to intervene as a plaintiff in the state court suit regarding over detentions, but was denied leave to do so. (Mem. Supp. City Defs.' Mot. Dismiss at 12.) This illustrates the flaw with the argument that the ability to file a lawsuit shows the existence of meaningful control: the court ultimately decides the outcome of the issues in a suit, thus filing a suit is, on some level, an admission that external help is needed to effectuate the desired results.
The plaintiffs' also argue that there is a category of arrestees whose violations could have been processed with citations and thus, in arresting them, the City defendants essentially chose to take them to CBIC. Opp'n Mot. Dismiss at 42-43.) The complaint, however, does not identify such a group. Instead it categorizes the plaintiffs 554 based on the types of constitutional violations they allegedly suffered *554 (e.g., equal protection strip search class), and would make the City defendants liable for all persons in a given category of violations, even if the underlying arrest was clearly justified. (See City Defs.' Reply Mem. Supp. Mot. Dismiss at 6.) There may be a group for which citations could or should have been used; however, even if the plaintiffs had pled this, there would be significant concerns for the court in attempting to define the membership in this group, as doing so would likely necessitate more judicial assessment of discretionary law enforcement priorities and procedures than would be warranted. Therefore, the potential existence of such a group fails to supply the element of choice necessary to give rise to liability under the "entrustment liability" theory.
Because the court finds that the unique facts of this case render the "entrustment liability" theory inapplicable, there is no need to consider arguments about its validity generally under Fourth Circuit law.
A separate order follows.
ORDER
For the reasons stated in the accompanying memorandum, it is hereby ORDERED that:
1. The State defendants' motion to dismiss (docket entry no. 61) is Denied in part and Granted in part;

2. The State defendants' motion in the alternative for summary judgment (docket no. 61) is Denied without prejudice;
3. The City defendants' motion to dismiss (docket entry no. 58) is Granted; and
4. The Mayor and City Council of Baltimore and the Baltimore City Police Department are dismissed from this case.
[1] The plaintiffs include other police agencies under the City's control, such as the Baltimore City Housing Police, in this suit. (3d Am.Compl. ¶ 97.)
[2] The current warden, Mitchell Franks, is sued in his individual and official capacities, (3d Am.Compl. ¶ 86), except with respect to the over detention claims, for which he is sued in his official capacity only (Pls.' Opp'n State Defs.' Mot. Dismiss 3d Am. Compl. at 2, n. 1). Former wardens Susan Murphy and William Jednorski are sued in their individual capacities. (Id. at ¶¶ 87-88.)
[3] CBIC is an agency of the Maryland Division of Pretrial Detention and Services. (3d Am. Compl. ¶ 99.)
[4] The third amended complaint inadvertently mischaracterized this offense as an open alcohol container. (Pls.' Opp'n State Defs.' Mot. Dismiss 3d Am. Compl. at 6 n. 4.)
[5] The plaintiffs define "strip search" or "full strip search" as "the removal, pulling down, or rearrangement of clothing for the visual inspection of an arrested person's genital and/or anal areas, which may also include requiring the person to squat and cough, in the presence of one or more guards." (3d Am.Compl. ¶ 8.)
[6] Represented by named plaintiffs West, Jones, Saunders, Haig, and Washington.
[7] Represented by named plaintiffs West, Jones, Saunders, Haig, and Washington.
[8] Represented by named plaintiffs West, Jones, Saunders, Haig, and Washington.
[9] The plaintiffs define "underwear strip search" as "a strip search to the person's underwear, without removing or rearranging the underwear for visual inspection of bare skin thereunder." (3d Am.Compl. ¶ 8.)
[10] Represented by named plaintiff Adams.
[11] Represented by named plaintiffs Bowie, Colyns, Saunders, Washington, Haig, and Adams. A recent suit in state court, Rodney, et al. v. Murphy, case no. 24-C-05-004405, also challenged over detention practices, which seem to have improved as a result.
[12] Count 9 is just against Warden Murphy in her individual capacity.
[13] Note that these encompass both the allegations of the equal protection class and the underwear strip search class, named as such by the plaintiffs to avoid confusion. (3d Am. Compl. at 8, n. 1.)
[14] The wardens also argue for summary judgment on these claims; however, it would be premature to consider summary judgment before the plaintiffs have had the opportunity to contest the affidavits upon which the wardens base their arguments for the strip search policy's constitutionality. (See State Defs.' Mot. Dismiss 3d Am. Compl. at 10.)
[15] From here on, all references to any motion, opposition, or reply will be assumed to be referring to those addressing the third amended complaint unless otherwise indicated.
[16] The plaintiffs contend that their alleged facts could make out claims under additional theories, such as "failure to train" or bystander liability. (Pls.' Opp'n State Defs.' Mot. Dismiss at 18-19.) Given that the Wardens focus their argument on supervisory liability and that the plaintiffs have sufficiently stated a claim under that theory, it is not necessary to analyze other potential theories at this time.

[17] Causation can also be established directly, such as a policy mandating employees to carry out unconstitutional actions against the plaintiff. Shaw, 13 F.3d at 799 (internal citations omitted). Depending on what is established about CBIC's official policy on strip searching, this avenue of proof might also be available to the plaintiffs.
[18] To be clear, I am not relying on Johnson itself as persuasive authority because it is unpublished and in any event had not been handed down when the alleged violations at CBIC occurred; rather, I am adopting the rationale of the Johnson court, which relies on Supreme Court cases (Bell and U.S. v. Virginia) that were decided well before 2003.
[19] This case is analyzed under the Fifth Amendment because it alleges Equal Protection claims against the federal government rather than a state; however, this does not change the underlying principles.
[20] That the reported cases involve strip searches of females rather than males does not affect the underlying Equal Protection analysis related to gender-based governmental action.
[21] These are Counts 1 (suspicionless strip search), 2 (non-private strip search), 3 (equal protection strip search), and 11 (equal protection underwear strip search). (Pls.' Opp'n State Defs.' Mot. Dismiss at 25.)
[22] Dismissal is without prejudice to any subsequent plaintiff's attempt to bring such a claim against Warden Franks in his individual capacity.
[23] Note that the Seventh Circuit apparently rejected this approach in Robinson v. City of Chicago, 868 F.2d 959, 967-68 (7th Cir.1989), although it did not specifically overrule Tully.
[24] The plaintiffs do not mention which court issued the bench warrant; however, as Haig was arrested in Baltimore City, it would follow that it was a court of Baltimore City and that Haig would therefore be taken to CBIC, since that is where Baltimore City arrestees are taken. (3d Am.Compl. ¶¶ 69, 98, 106.)
[25] The Wardens urge the court to apply the "fugitive disentitlement doctrine" and deny Haig standing. (State Defs.' Reply Pls.' Opp'n Mot. Dismiss at 2-3.) This discretionary, equitable measure reflects several policy considerations. See Jaffe v. Accredited Surety & Casualty Co., 294 F.3d 584, 595-96 (4th Cir.2002). "These include (1) a party's fugitive status can render a judgment `impossible to enforce'; (2) the inequity of allowing a fugitive to `call upon the resources of the Court for determination of his claims,' and (3) the need to `discourage[ ] the felony of escape and encourage[ voluntary surrenders.'" Id. at 596 (internal citations omitted). None of the underlying policies strongly points towards application of this doctrine here. There would be no difficulty with enforcing a judgment; constitutional violations should be redressed whether perpetrated against fugitives or others; and while failure to show up for court and fleeing the state is criminal behavior, having standing to obtain injunctive relief for governmental actions connected to arrests, booking, and processing virtually necessitates having been arrested and being likely to be re-arrested, making fugitives likely, if not necessary, plaintiffs. Thus the defendants' argument is essentially that Haig is not entitled to standing because he is a fugitive, which if accepted would mandate the application of this doctrine to all fugitives rather than maintaining its discretionary nature.
[26] Although CBIC is not technically a jail, but a booking and processing site, this distinction does not undermine the theory.
[27] Note that another case involving the "entrustment liability" theory, Ford, 154 F.Supp.2d at 148-49, did not require knowledge on the part of the entrusting authority but rather placed on the city "an affirmative obligation . . . to ensure that the policy of the Jail officials did not lead to widespread violation of BPD [Boston Police Department] arrestees' constitutional rights." As the plain tiffs here plead that the City defendants had actual knowledge, and the claim will be dismissed for other reasons, whether an "entrustment liability" theory may be pursued absent knowledge by the defendant(s) does not need to be addressed.
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 </s> Case 1:06-cv-01863-CCB Document 295-1 Filed 06/25/10 Page 1 of 2
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND
MARYLAND STATE CONFERENCE OF NAACP BRANCHES, et al.,
Plaintiffs,

v.

Civil Action No. 06-cv-1863-CCB

BALTIMORE CITY POLICE DEPARTMENT, et al.,
Defendants.

AGREED ORDER OF DISMISSAL
This Order dismisses all claims made in the above-captioned case by the Maryland State Conference of NAACP Branches, Baltimore City Branch of the NAACP, Evan Howard, Tyrone Braxton, Donald Wilson, Robert Lowery, Aaron Stoner, Timothy Johnson, Tavis Crockett, Raffic Scott, Kerrell Wright, Carol Higgs, Armondo Horsey, Jonathan Lindsay, Erin Marcus, and Jeffrey Chapman (“Plaintiffs”) against the Baltimore City Police Department, the Mayor and City Council of Baltimore, Martin O’Malley, Sheila Dixon, Leonard Hamm, Marcus Brown, Frederick Bealefeld, Kevin Clark, Edward T. Norris, Jemini Jones, David A. Crites, Jr., Erik Pecha, Benjamin Newkirk, Arnold Jones, Peter Heron, Johnta Grey, Joseph Chin, Paul Southard, Michael Pinkosz, Lolando Hamilton, Ronald Mealey, and John Does 1-100 (the “City Defendants”).

Case 1:06-cv-01863-CCB Document 295-1 Filed 06/25/10 Page 2 of 2
The Plaintiffs and the City Defendants (collectively, “the parties”) hereby agree that this case has been settled and that all issues and controversies have been resolved to their mutual satisfaction. The parties request the Court to retain jurisdiction to enforce the terms of the settlement agreement under the authority of Kokkonen v. Guardian Life Insurance Co. of America, 511 U.S. 375, 381-82 (1994):
IT IS HEREBY ORDERED: 1. The parties entered into a settlement agreement on June 25, 2010, a copy of which is
attached hereto. 2. By consent of the parties, the Court shall retain jurisdiction for the purpose of
enforcing the terms of the agreement, as set forth in the agreement. 3. The Court’s jurisdiction shall terminate on or before the date which is four years from
the entry of this Order, as set forth in the agreement. 4. Except as provided for in paragraphs 2 and 3 above, this case is dismissed, with
prejudice. IT IS SO ORDERED this ____ day of _____, 2010.
__________________________________ Catherine C. Blake United States District Judge
1

 </s> CCaassee 11::0066--ccvv--0011886633--CCCCBB DDooccuummeenntt 229956--21 FFiilleedd 0066//2295//1100 PPaaggee 11 ooff 5577

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

MARYLAND STATE CONFERENCE OF NAACP BRANCHES, et al.
Plaintiffs,

v.
BALTIMORE CITY POLICE DEPARTMENT, et al.
Defendants.

Civil Action No. 06-1863 (CCB)

STIPULATION OF SETTLEMENT May 3, 2010

CCaassee 11::0066--ccvv--0011886633--CCCCBB DDooccuummeenntt 229956--21 FFiilleedd 0066//2295//1100 PPaaggee 22 ooff 5577

TABLE OF CONTENTS

I.

THE LITIGATION ............................................................................................................ 3

II. CLAIMS OF THE NAACP PLAINTIFFS ........................................................................ 4

III. THE MUNICIPAL DEFENDANTS' DENIAL OF WRONGDOING AND LIABILITY4

IV. TERMS OF STIPULATION AND AGREEMENT OF SETTLEMENT ......................... 4

A. Definitions.............................................................................................................. 4

B. Terms of the Settlement ......................................................................................... 8

l.

Policy Changes........................................................................................... 8

a) Statements of Policy ...................................................................... 8

b) Auditor ......................................................................................... 10

c) Data Tracking and Management.. ................................................ 17

d) Citizen Complaint and Investigation Process and Community Relations ...................................................................................... 20

e) Monitoring Arrests for Quality of Life Offenses and Citizen Complaints ................................................................................... 22

f)

Training ........................................................................................ 24

C. Payments to Plaintiffs .......................................................................................... 25

D. Confidentiality of Settlement Amounts ............................................................... 25

E. Dismissal of Released Claims Against Released Parties ..................................... 26

F. Releases................................................................................................................ 26

G. Miscellaneous Provisions..................................................................................... 27

2

CCaassee 11::0066--ccvv--0011886633--CCCCBB DDooccuummeenntt 229956--21 FFiilleedd 0066//2295//1100 PPaaggee 33 ooff 5577
This Stipulation of Settlement (the "Agreement") is entered into by and among (i) the NAACP Plaintiffs (as defined in Section IV.A herein); and (ii) the Municipal Defendants (as defined in Section IV.A herein), collectively, the "Settling Parties." This Agreement is intended by the Settling Parties to fully, finally, and forever resolve, discharge, and settle the Released Claims (as defined in Section IV.A herein) with respect to the Municipal Defendants, upon and subject to the tenns and conditions hereo(
I. THE LITIGATION 1. On July 21, 2006, the NAACP Plaintiffs (with the exception of the Plaintiffs who joined the case in February 2008 with the filing of an amended complaint) commenced the Action by filing a complaint against the Municipal Defendants and other parties alleging, among other things, that the Department engaged in a pattern and practice of arrests without probable cause in violation of the United States Constitution and the Maryland Declaration of Rights. 2. The NAACP Plaintiffs filed an amended complaint on February 27, 2008, adding additional Plaintiffs and Defendants. 3. In December 2008, the Settling Parties agreed to suspend the prosecution of the Action and engaged in settlement negotiations. The Municipal Defendants, and especially the leadership of the Department, have worked closely and cooperatively with the NAACP Plaintiffs in fashioning the terms of this Agreement. These terms are based upon four key principles: 1) establishing policies and providing written guidance regarding the effective policing of Quality of Life Offenses; 2) training Department personnel regarding those policies; 3) tracking compliance with the policies; and 4) holding Departmental personnel accountable for conduct violative of the policies.
3

CCaassee 11::0066--ccvv--0011886633--CCCCBB DDooccuummeenntt 229956--21 FFiilleedd 0066//2295//1100 PPaaggee 44 ooff 5577
II. CLAIMS OF THE NAACP PLAINTIFFS The NAACP Plaintiffs believe that the claims asserted in the Action have merit and that their investigation and analysis of the facts and the law in this matter support the claims asserted. However, the NAACP Plaintiffs and their counsel recognize and acknowledge the expense and length of continued proceedings necessary to prosecute the Action against the Municipal Defendants through trial and appeals. Plaintiffs agree that this Agreement is a fair and reasonable settlement with the Municipal Defendants.
III. THE MUNICIPAL DEFENDANTS' DENIAL OF WRONGDOING AND LIABILITY
The Municipal Defendants have denied and continue to deny all allegations of wrongdoing or liability asserted against them in the Action. Nonetheless, the Municipal Defendants recognize that continuing the Action through trial and appeals would be protracted and expensive, and that it is desirable and in the best interests of the Municipal Defendants and the citizens of Baltimore, that the Action be fully and finally settled in the manner set forth herein.
IV. TERMS OF STIPULATION AND AGREEMENT OF SETTLEMENT NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED by and among the
Settling Parties that the Action shall be fully and finally settled on and subject to the terms and conditions set forth below.
A. Defmitions The following terms have the meanings specified below: 1. "Action" means Maryland State Conference ofNAACP Branches, et al., v.
Baltimore City Police Department, et al., Civil Action No. 06-1863 (CCB) pending in the United States District Court for the District of Maryland.
4

CCaassee 11::0066--ccvv--0011886633--CCCCBB DDooccuummeenntt 229956--21 FFiilleedd 0066//2295//1100 PPaaggee 55 ooff 5577

2. "Agreement" means the entirety of this Stipulation of Settlement once fully

executed by each of the Settling Parties, including all documents incorporated into this

Stipulation of Settlement by reference.

3. "Arrests of Plaintiffs at Issue" means

a. The arrest of Evan Howard on Aprill5, 2005.

b. The arrest ofTyrone Braxton on April 15, 2005.

c. The arrests of Donald Wilson on April 10, 2006, and AprilS, 2007.

d. The arrest of Aaron Stoner on May 7, 2005.

e. The arrest of Robert Lowery on May 7, 2005.

f. The arrest ofTimothy Johnson on June 25, 2006.

g. The arrests of Tavis Crockett on July 23, 2006 and August 22, 2006.·

h. The arrest of Raffic Scott on August 30, 2006.

t. The arrest ofKerrell Wright on August 30, 2006.

J. The arrest of Carol Higgs on March 2, 2004.

k. The arrest of Armondo Horsey on July 22, 2007.

I. The arrest of Jonathan Lindsay on July 22, 2007.

m. The arrest of Erin Marcus on October 12, 2007.

4. "Court" means the United States District Court for the District of Maryland.

5.

"Department" means the Baltimore Police Department.

6. "Effective Date" means the date upon which the Court enters an order of

voluntary dismissal of the Action with prejudice as agreed upon by the Settling Parties.

7.

"The Municipal Defendants" means the Mayor and City Council of the City of

Baltimore ("City"); the Baltimore Police Department; Martin O'Malley, individually, and in his

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CCaassee 11::0066--ccvv--0011886633--CCCCBB DDooccuummeenntt 229956--21 FFiilleedd 0066//2295//1100 PPaaggee 66 ooff 5577
official capacity as former-mayor of the City of Baltimore; Sheila Dixon, individually, and in her official capacity as Mayor, City of Baltimore; Leonard Hamm, individually, and in his official capacities as former Commissioner and Interim Commissioner of the Police Department; Marcus L. Brown, individually and in his official capacity as former Deputy Commissioner of the Police Departments; Frederick H. Bealfeld, III, individually and in his official capacity as Commissioner of the Police Department; Kevin Clark, individually, and in his official capacity as former-Commissioner of the Police Department; Edward T. Norris, individually, and in his official capacity as former-Commissioner of the Police Department; P/0 Jemini Jones, individually, and in his official capacity as a Police Officer, Baltimore City Police Department; P/0 David A. Crites, Jr., individually, and in his official capacity as a Police Officer, Baltimore City Police Department; Sgt. Erik Pecha, individually, and in his official capacity as a Sergeant, Baltimore City Police Department; P/0 Benjamin Newkirk, individually, and in his official capacity as a Police Officer, Baltimore City Police Department; P/0 Arnold Jones, individually, and in his official capacity as a Police Officer, Baltimore City Police Department; P/0 Peter Heron, individually, and in his official capacity as a Police Officer, Baltimore City Police Department; P/0 Johnta Grey, individually, and in his official capacity as a Police Officer, Baltimore City Police Department; P/0 Joseph Chin, individually, and in his official capacity as a Police Officer, Baltimore City Police Department; P/0 Paul Southard, individually, and in his official capacity as a Police Officer, Baltimore City Police Department; P/0 Michael Pinkosz, individually, and in his official capacity as a Police Officer, Baltimore City Police Department; P/0 Lolando Hamilton, individually, and in his official capacity as a Police Officer, Baltimore City Police Department; P/0 Ronald Mealey, individually, and in his official capacity as a Police
6

CCaassee 11::0066--ccvv--0011886633--CCCCBB DDooccuummeenntt 229956--21 FFiilleedd 0066//2295//1100 PPaaggee 77 ooff 5577
Officer, Baltimore City Police Department; John Does l-1 00, individually, and in their official capacity as Police Officers, Baltimore City Police Department.
8. "The NAACP Plaintiffs" means the Maryland State Conference of NAACP Branches, Baltimore City Branch of the NAACP, Evan Howard, Tyrone Braxton, Donald Wilson, Robert Lowery, Aaron Stoner, Timothy Johnson, Tavis Crockett, Raffic Scott, Kerrell Wright, Carol Higgs, Erin Marcus, Armando Horsey, and Jonathan Lindsay.
9. "Personnel Information" means any information that specifically identifies an individual officer, including, but not limited to, name, badge number, sequence number, or social security number.
10. "Plaintiffs' Counsel" means the law firm of Gibson, Dunn & Crutcher LLP; the ACLU of Maryland; and all attorneys affiliated therewith.
11. "Policies" means the policies and written directives required by section IV.B.l.a.l through IV.B.l.a.3.
12. "Quality of Life Offenses" for the purposes of this Agreement means loitering, trespassing, public defecation/urination, open container, disorderly conduct (particularly "failure to obey" and disturbing the peace), hindering, and littering.
13. "Released Claims" shall collectively mean all claims, demands, rights, actions, liabilities, damages, losses, obligations, or causes of action, in law or in equity, whether known or unknown, contingent or absolute, suspected or unsuspected, disclosed or undisclosed, hidden or concealed, matured or unmatured, accrued or which may hereafter accrue, that have been or could have been asserted through the Effective Date by the NAACP Plaintiffs, arising from Arrests at Issue.
14. "Released Persons" means each and all of the Municipal Defendants.
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CCaassee 11::0066--ccvv--0011886633--CCCCBB DDooccuummeenntt 229956--21 FFiilleedd 0066//2295//1100 PPaaggee 88 ooff 5577
15. '"Settlement" means the proposed settlement and compromise of the Action as provided for in this Agreement.
16. "Task" means any, each or all of the actions listed in Attachment A, as applicable. 17. "Zero Tolerance Policing" means the policy by which all Quality of Life Offenses, are enforced by means of custodial arrest, regardless of any discretion to address the infractions through other available means, including, but not limited to, counseling, verbal warning, or written citation. B. Terms of the Settlement The Settling Parties agree to resolve the Action, pursuant to this Agreement, on the following terms: 1. Policy Changes
a) Statements of Policy 1. Within 30 days of the Effective Date of this Agreement, the Department shall issue a policy stating that the Department does not support a policy of Zero Tolerance Policing. Quality of Life Offenses committed in an officer's presence may be enforced by several means, including but not limited to: counseling, verbal warning, written citation or arrest. The Department shall enforce this policy as set forth in sections IV.B.I.c and IV.B.l.e of this Agreement. The policy shall be in the form agreed upon, or to be agreed upon within 30 days of the Effective Date of this Agreement, by the Department and Plaintiffs' Counsel and is hereby incorporated into this Agreement by reference as if fully set forth herein. 2. Within 30 days of the Effective Date of this Agreement, the Department shall issue a written directive or directives enumerating the elements of each Quality of Life Offense and providing guidance on appropriately identifying and reacting to conduct that does and does not amount to a Quality of Life Offense, including guidance on conduct that is protected by the
8

CCaassee 11::0066--ccvv--0011886633--CCCCBB DDooccuummeenntt 229956--21 FFiilleedd 0066//2295//1100 PPaaggee 99 ooff 5577
First Amendment to the U.S Constitution. The Department shall enforce the directive or directives as set forth in sections IV.B.l.c and IV.B.l.e ofthis Agreement. The Directives shall be in the form agreed upon by the Department and Plaintiffs' Counsel and are hereby incorporated into this Agreement by reference as if fully set forth herein.
a. The written directive or directives concerning Quality of Life Offenses required by Section IV.B.l.a.2 shall include a requirement that any time an officer effects a custodial arrest for a Quality of Life Offense, the officer shall record in the incident report and the statement of probable cause the factual basis for his or her decision to effect a custodial arrest, rather than providing counseling, a verbal warning or issuing a citation. 3. Within 30 days of the effective date of this Agreement, the Department shall issue and enforce a written directive requiring officers to provide their names and badge numbers to any individual who requests this information. 4. The Zero Tolerance Policing policy required by section IV.B.l.a.l shall not be rescinded or diminished by the Department during the term of this Agreement. 5. The written directive or directives required by section IV.B.l.a.2 shall not be rescinded or diminished by the Department during the term of this Agreement unless (a) the Department determines, in good faith and upon advice of counsel, that the policies conflict or will conflict with any applicable law, regulation, or court order; or (b) the Department determines in good faith that such rescission or diminishment is necessary for the safety of the public or Department personnel. In the event the Department concludes a modification of the written directive or directives required by section IV.B.l.a.2 is necessary, it will notify Plaintiffs'
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CCaassee 11::0066--ccvv--0011886633--CCCCBB DDooccuummeenntt 229956--21 FFiilleedd 0066//2295//1100 PPaaggee 1100 ooff 5577
Counsel of the planned modification and offer a reasonable opportunity for Plaintiffs' Counsel to comment upon it. The Department shall in good faith consider such comments.
b) Auditor 1. Within 30 days of the Effective Date of this Agreement, the Department and Plaintiffs' Counsel will attempt in good faith to mutually agree upon an Auditor. If the Department and Plaintiffs' Counsel are unable to agree upon an Auditor within 30 days of the Effective Date of this Agreement, the Department and Plaintiffs' Counsel shall submit, within 45 days of the Effective Date of this Agreement, two names of persons who have experience as a law enforcement practices expert, monitor or auditor, along with resumes or curricula vitae and cost proposals to the Court, and the Court shall appoint the Auditor from among the names of qualified persons so submitted. 2. Should the Auditor become unable to serve, the Department and Plaintiffs' Counsel shall, within 45 days ofbeing so notified, together select a new Auditor. If the Department and Plaintiffs' Counsel are unable to agree on a replacement Auditor, the Department and Plaintiffs' Counsel shall submit, within 45 days of notification that the Auditor is unable to continue to serve, two names of persons who have experience as a law enforcement practices expert, monitor or auditor, along with resumes or curricula vitae and cost proposals to the Court, and the Court shall appoint the Auditor from among the names of qualified persons so submitted. 3. The Auditor shall be retained to conduct audits, issue public reports, and otherwise perform its duties as defined in this Agreement for a term of three (3) years from the effective date of this Agreement, with the final semi-annual report due no later than 90 days from the end of the three-year term, unless the Agreement is terminated prior to the end of three years under section IV.B.l.b.6, in which case the final report shall be issued no later than 90 days after
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CCaassee 11::0066--ccvv--0011886633--CCCCBB DDooccuummeenntt 229956--21 FFiilleedd 0066//2295//1100 PPaaggee 1111 ooff 5577
the date the Agreement is terminated. The Auditor's term shall begin on the first day of the month following the selection of the Auditor. Each semi-annual report shall identify, in an executive summary, whether the Department is in Compliance, Material Compliance, Noncompliance, or Material Non-compliance with this Agreement. The definition of Compliance, Material Compliance, Non-compliance, and Material Non-compliance shall be set forth in detail in the Auditor's Manual mandated in section IV.B.l.b.21.
4. The Auditor shall not be retained by any current litigant or claimant, nor accept employment from any future litigant or claimant, in a claim or suit against the Municipal Defendants, or any of their officers, employees, agents, or associated persons. The Auditor shall not testify on behalf of any current or future litigant or claimant in any new claim or suit against the Municipal Defendants, or any of their officers, employees, agents, or associated persons. The Auditor shall be permitted to testify in any proceeding between the Settling Parties seeking to enforce this Agreement regarding the Auditor's access to documents, data, and persons, as set forth in sections IV.B.l.b.ll and IV.B.l.b.l2 as well as the Auditor's Manual pursuant to section IV.B.1.b.21 and IV.B.l.b.22, and the contents of any Auditor's Report. The Auditor shall immediately notify the Municipal Defendants upon receipt of a subpoena and/or request for documents and materials that relate to the Auditor's duties under this Agreement or any Report(s) issued hereunder.
5. If, at the end of the three-year term, the Auditor determines that the Municipal Defendants have not been in Material Compliance with this Agreement for at least the previous 12 months, or have not been in Compliance with this Agreement for at least the previous six months, the Auditor shall be reappointed and this Agreement shall continue to be in effect for one additional year, and then will terminate.
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CCaassee 11::0066--ccvv--0011886633--CCCCBB DDooccuummeenntt 229956--21 FFiilleedd 0066//2295//1100 PPaaggee 1122 ooff 5577
6. If, at any time after the Agreement has been in effect for more than 18 months, the Auditor determines that the Municipal Defendants have been in Compliance with this Agreement for at least 6 consecutive months, this Agreement shall terminate. However, the Agreement shall not terminate under any circumstances less than 24 months from the Effective Date.
7. At his or her discretion, the Auditor may recommend to the Municipal Defendants measures intended to ensure full and timely implementation of this Agreement. A decision by Municipal Defendants not to implement the recommendations made by the Auditor shall not, by itself, constitute grounds for an enforcement action, but a decision not to implement a recommendation that results in non-compliance with this Agreement shall not be exempt from review by the Auditor.
8. The Municipal Defendants shall bear all fees and costs of the Auditor. The Auditor shall submit a proposed work plan and budget to the Municipal Defendants, in a format specified by the Municipal Defendants, within 45 days of appointment. The budget shall not exceed the sum of $240,000.
9. The Auditor shall only have the duties, responsibilities, and authority conferred by this Agreement. The Auditor shall not, and is not intended to, replace or subsume the roles and duties of the Municipal Defendants or any of their officers, employees, or agents, including, but not limited to, the Department's Internal Investigations Division.
10. Ifthe Auditor is not an attorney, the Auditor shall, within the budget allotted under Section IV.B.l.b.8, obtain the assistance of an attorney with professional experience and/or training in the area of criminal law and/or law enforcement to assist in performing reviews related to probable cause. Within 30 days of the Effective Date of this Agreement, the Department and Plaintiffs' Counsel will attempt in good faith to mutually agree upon an assistive
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CCaassee 11::0066--ccvv--0011886633--CCCCBB DDooccuummeenntt 229956--21 FFiilleedd 0066//2295//1100 PPaaggee 1133 ooff 5577
attorney. If the Department and Plaintiffs' Counsel are unable to agree upon an assistive attorney within 30 days of the Effective Date of this Agreement, the Department and Plaintiffs' Counsel shall submit, within 45 days of the Effective Date of this Agreement, two names of persons along with resumes or curricula vitae to the Court, and the Court shall appoint the assistive attorney from among the names of qualified persons so submitted. The Auditor, at his or her discretion (but within the budget approved by the Municipal Defendants), may associate such additional persons or entities as are necessary to perform the Tasks specified by this Agreement and attached at Attachment A, subject to the approval of the Municipal Defendants; such approval shall not be unreasonably withheld. Any additional persons or entities associated with the Auditor shall possess the following attributes: a reputation for integrity, evenhandedness, and independence; an absence of bias, including any appearance of bias, for or against the NAACP Plaintiffs or the Municipal Defendants in this Action, or their officers or employees; and no personal involvement in the last five years, whether paid or unpaid, with a claim or lawsuit against the Municipal Defendants or any of their officers, agents, or employees unless waived by the Municipal Defendants, which waiver shall not be unreasonably withheld. The Auditor shall notify in writing the Municipal Defendants if and when such additional persons or entities are selected for association by the Auditor. The notice shall identify the persons or entities to be associated and the task(s) to be performed, and, if a waiver is being requested, the notice shall indicate if the person had any such involvement in the last five years, whether paid or unpaid, with a claim or lawsuit against the Municipal Defendants or any of their officers, agents or employees. The Municipal Defendants shall notify the Auditor in writing within 10 days (excluding weekends, and federal or state holidays) of any objection they may have to the selection. All individuals or entities associated with the Auditor under this provision,
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CCaassee 11::0066--ccvv--0011886633--CCCCBB DDooccuummeenntt 229956--21 FFiilleedd 0066//2295//1100 PPaaggee 1144 ooff 5577
including the assistive attorney, shall be subject to the same restrictions and limitations included in sections IV.B.l.b.4, IV.B.l.b.I3, and IV.B.l.b.I4 ofthis Agreement. Neither the NAACP Plaintiffs nor Plaintiffs' Counsel may assist the Auditor in performing the Auditing tasks specified by this Agreement.
11. The Municipal Defendants shall provide the Auditor with access to all officers, employees, documents, and data of the Municipal Defendants that are reasonably necessary to complete the Tasks enumerated in this Agreement. The Auditor's access to documents and databases that contain non-public individually identifiable data shall be provided through the oversight of an agent of the Municipal Defendants who has the necessary security clearance. In the event the Municipal Defendants reasonably believe the Auditor's request for access to officers, employees, documents or data is irrelevant, onerous, and/or unnecessary, the Municipal Defendants shall make their position known to the Auditor. A decision by Municipal Defendants to deny the Auditor access to requested personnel and/or documents shall not, by itself, constitute grounds for an enforcement action, but a decision to deny the Auditor access to requested personnel and/or documents that either results in non-compliance with this Agreement, or the Auditor's inability to assess compliance with this Agreement shall constitute grounds for an enforcement action.
12. The Auditor's access to documents and data shall include, but is not limited to, all documents and data described in Section IV.B.lofthis Agreement to the extent the documents or data are created or maintained by the Municipal Defendants.
13. The Auditor shall provide the Municipal Defendants with notice of a request for copies of or access to documents and databases. Upon such a request, the Municipal Defendants shall provide the Auditor with copies (electronic, where available, or hardcopy, at the Auditor's
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CCaassee 11::0066--ccvv--0011886633--CCCCBB DDooccuummeenntt 229956--21 FFiilleedd 0066//2295//1100 PPaaggee 1155 ooff 5577
discretion) of or access to any documents or databases that the Auditor is entitled to access under this Agreement. The Auditor shall retain any non-public confidential information, including, but not limited to, PersoiUlel Information, information related to disciplinary investigations, procedures, or actions to the extent they contain PersoiUlellnformation, and General Orders, Police Commissioner's Memoranda, and Training Bulletin Guidelines to the extent they are not public records, in whatever form (e.g., written, electronic, oral, overheard or observed), in a confidential maiU1er and shall not disclose any non-public confidential information to any person or entity, other than those persons or entities with whom the Auditor may associate pursuant to this Agreement. The Auditor's semi-annual reports shall not contain any Personnel Information of any member of the Department. The Auditor's reports shall not contain information sufficient to identify any specific arrest or other citizen contact by the Department including, but not limited to, names, dates, time, or location.
14. All information, documents and data retained by the Auditor in the administration of his or her duties shall be returned to the Municipal Defendants upon the termination of this Agreement. This information, documents or data shall not be copied, and any electronic data shall be destroyed by the Auditor, who shall attest to the fact at the conclusion of this Agreement.
15. In order to audit and report on the Municipal Defendants' implementation of this Agreement, the Auditor shall regularly review and evaluate the Department's completion, implementation, and/or compliance with the Tasks enumerated in Attachment A.
16. Within 120 days ofthe Effective Date ofthis Agreement, the Department shall develop a document and database retention protocol to maintain and retain all records, including documents and the database described in Section IV.B.1.c of this Agreement, documenting
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CCaassee 11::0066--ccvv--0011886633--CCCCBB DDooccuummeenntt 229956--21 FFiilleedd 0066//2295//1100 PPaaggee 1166 ooff 5577
compliance with the terms of this Agreement and all documents required by or developed pursuant to this Agreement. The protocol shall be evaluated and reported on by the Auditor.
17. In performing its obligations under this Agreement, the Auditor shall use the methods and procedures he or she deems most appropriate, including, but not limited to, statistical sampling techniques.
18. The Auditor shall evaluate and report on investigations of allegations of false or improper arrests regarding Quality of Life Offenses (as set forth in the explanatory note to Task 13 in Attachment A).
19. The Auditor shall issue semi-annual written, public reports, beginning 270 days after the Auditor's term begins, detailing the Municipal Defendants' compliance with and implementation of this Agreement. Each semi-annual report shall be issued within 90 days after the end of the six-month period being evaluated. At least 45 days before issuing a report, the Auditor shall provide a draft to the Municipal Defendants and Plaintiffs' Counsel for review. Plaintiffs' Counsel shall submit to the Auditor and the Municipal Defendants any written comments regarding the draft report within 15 days of receiving the draft report. Municipal Defendants shall provide to the Auditor and Plaintiffs' Counsel any written comments regarding the draft report within 30 days of receiving the draft report. The Auditor shall consider the comments of the Municipal Defendants and Plaintiffs' Counsel in drafting the Auditor's report. The Municipal Defendants' comments shall be published with the final report. The comments shall be clearly marked as the Municipal Defendants' comments. The reports shall be written with due regard for the privacy interests and rights of individual officers and shall not include any individually identifiable Personnel Information.
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CCaassee 11::0066--ccvv--0011886633--CCCCBB DDooccuummeenntt 229956--21 FFiilleedd 0066//2295//1100 PPaaggee 1177 ooff 5577
20. The Auditor's Report shall include, but is not limited to, a description of the methodology for assessing compliance with the Agreement.
21. The Auditor, within 90 days of the beginning of his or her term, shall create an Auditor's Manual and provide it to the Department and Plaintiffs' Counsel. The Auditor's Manual will identify each Task required of the Municipal Defendants listed in Attachment A and the methodology that shall be used to assess the Municipal Defendants' compliance with each Task.
22. Within 30 days of receipt of the Auditor's Manual, the Department and Plaintiffs' Counsel shall provide comments, if any, regarding the Auditor's Manual to the Auditor and opposing counsel. Within 30 days of receipt of the comments, the Auditor shall provide to the Department and Plaintiffs' Counsel the final Auditor's Manual, incorporating the comments to the extent he or she deems appropriate. If the Auditor, the Department and Plaintiffs' Counsel are unable to agree on the content of the Auditor's Manual, any and each of them may seek the intervention of the Court. The Auditor shall perform the duties required by this Agreement in conformity with the Auditor's Manual.
23. In the event that any of the Settling Parties seek the intervention of the Court to resolve a dispute concerning this Agreement, all deadlines, including the termination ofthis Agreement, shall be tolled until the dispute is resolved.
c) Data Tracking and Management 1. Within 180 days of the effective date of this Agreement, the Municipal Defendants shall create and automate a database to track police officer performance. The database shall have the capability to retrieve information by sequence number, sector, district, shift, date, and offense. The following data will be entered into the database:
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CCaassee 11::0066--ccvv--0011886633--CCCCBB DDooccuummeenntt 229956--21 FFiilleedd 0066//2295//1100 PPaaggee 1188 ooff 5577
a. the number of citizen contact sheets written; b. the number and kind of citizen complaints and the final disposition of any
related investigations; c. the number of arrests for Quality of Life Offenses; d. the number of criminal and civil citations issued for Quality of Life
Offenses; and e. probable cause statements for arrests for Quality of Life Offenses. 2. Within 180 days ofthe effective date ofthis Agreement, the Department shall: a. establish and enforce a policy and procedure requiring shift supervisors to
review statements of probable cause for custodial arrests for Quality of Life Offenses to ensure that probable cause in fact existed and that the arrest was in accord with the Policies. If, after this Agreement has been in effect for 365 days, the result of the review is a determination that the arrest was in contravention of the Policies, the supervisor shall refer the matter to his or her command for action consistent with the policy established under section rv.B.l.c.2.c. If the result of the review is a determination that the arrest is consistent with the Policies, the supervisor shall determine the necessity, if any, for non-punitive counseling. b. establish and enforce a policy and procedure requiring a line supervisor's review of probable cause statements for custodial arrests for Quality of Life Offenses is reviewed by second-level supervisors on a periodic basis, not to exceed every six months, to ensure that probable cause in fact existed and that the arrest was in accord with the Policies ;
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CCaassee 11::0066--ccvv--0011886633--CCCCBB DDooccuummeenntt 229956--21 FFiilleedd 0066//2295//1100 PPaaggee 1199 ooff 5577

c. establish a policy identifying corrective actions, up to and including

disciplinary action, as warranted and consistent with established

Departmental disciplinary policies, procedures, contracts, memoranda of

understanding, and all applicable laws governing the discipline of law

enforcement officers, including, but not limited to the Law Enforcement

Officer's Bill of Rights ("LEOBR"), Md. Ann. Code, Public Safety Art.,§

3-101, et seq., to be taken by the Department when an officer's conduct is

determined to be in contravention of the Policies;

d. establish confidentiality and security policies and procedures for the

database; and

e. establish procedures to test the accuracy and security of data in the

database.

3. Within 365 days of the effective date of this Agreement, the Department shall

develop protocols for use of the database in evaluating compliance with the Policies. Such

protocols shall establish reasonable triggering thresholds for review of officer conduct to monitor

effective compliance with the Policies.

a. Triggering thresholds shall be established for a number of complaints over

a given period where the investigation stemming from the complaint

results in a finding that the complaint is sustained or not sustained.

1.

The triggering thresholds required by section IV.B.c.3.a. shall

include:

1. complaints alleging false arrests or lack of probable cause;

and

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CCaassee 11::0066--ccvv--0011886633--CCCCBB DDooccuummeenntt 229956--21 FFiilleedd 0066//2295//1100 PPaaggee 2200 ooff 5577
2. complaints alleging that an officer did not provide his or her name and badge number upon request.
b. Triggering thresholds shall be established for the number of custodial arrests for Quality of Life Offenses in a given period. A triggering threshold shall be established for each type of Quality of Life Offense as well as for the total number of custodial Quality of Life Offense arrests.
d) Citizen Complaint and Investigation Process and Community Relations
I. Within 90 days of the effective date of this Agreement, the Municipal Defendants shall enter all citizen complaints into a database. The database shall include the file number of the complaint (also provided to the complainant); the names of all accused officers, if provided or known; contact information for all complainants, non-accused but related officers, and witnesses, if provided or known; the race and gender of all involved officers and compiainants if known or ascertainable by reasonable investigation; a narrative description of the allegations; significant dates; the street address and district of the incident; and the disposition of the complaint (sustained, not sustained, unfounded or exonerated).
2. All files related to the discipline of any officer following a sustained complaint shall be available to Department personnel responsible for that officer's supervision, counseling, or discipline.
3. Complainants shall be allowed to initiate complaints against an officer in person, by telephone, by mail, by fax, or via the internet. A complainant shall not be required to fill out or sign a form to initiate a complaint. Municipal Defendants may seek from the complainant sufficient information to enable the identification of the involved officers and incident.
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CCaassee 11::0066--ccvv--0011886633--CCCCBB DDooccuummeenntt 229956--21 FFiilleedd 0066//2295//1100 PPaaggee 2211 ooff 5577
4. Complainants shall be permitted to initiate complaints anonymously, in writing or verbally. Third-party complaints shall be allowed.
5. Within 180 days ofthe Effective Date ofthis Agreement, a telephone number shall be created to allow for toll free calls to initiate complaints.
6. Within 180 days of the Effective Date of this Agreement, the telephone number shall be advertised with the goal that Baltimore residents and visitors should be generally aware of how to initiate a complaint.
7. Within 365 days of the Effective Date of this Agreement, the Municipal Defendants shall publicize information concerning the purpose and goals of the citizen complaint and resolution process, and the process for initiating a complaint, including publishing and distributing pamphlets describing the complaint and resolution process and holding at least one community meeting in each police district.
8. Investigators shall attempt to interview complainants· and witnesses at their own convenience, but, if necessary, shall offer to conduct interviews during non-business hours or at locations other than Departmental offices.
9. If conduct in contravention of Departmental policy other than the conduct alleged by the complainant is discovered in the course of an investigation, the Department shall investigate such other conduct.
10. Upon request, the Department shall provide a complainant reasonable updates on the status of the investigation. Even absent any such request for information, complainants shall be apprised of the status of open complaints every 60 days and promptly upon resolution of the investigation.
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CCaassee 11::0066--ccvv--0011886633--CCCCBB DDooccuummeenntt 229956--21 FFiilleedd 0066//2295//1100 PPaaggee 2222 ooff 5577
II. All findings shall be based on the "preponderance of the evidence" standard, and all investigators shall be trained on that standard. Investigators shall be required to state the factual basis for each finding in the final report of each investigation.
12. The Municipal Defendants shall make final determinations of all citizen complaints, and shall inform each complainant in writing of the final determination on his or her complaint.
e) Monitoring Arrests for Quality of Life Offenses and Citizen Complaints
1. When a review of an officer's performance is triggered by a data analysis under Section IV.B.l.c.3, the Department shall notify the appropriate supervisor of the officer or officers in question. This notice shall include the information available from the Section IV.B.l.c.3 database that triggered the review.
2. Once notified, a supervisor shall conduct a reasonable investigation of the performance of the officer in question by reviewing records relating to the conduct that triggered the review (e.g., complaint records, statements of probable cause, incident reports, etc.). The review shall specifically include a determination of the sufficiency of the probable cause underlying each Quality of Life arrest that is associated with the conduct under review. Based upon the review of related records, the supervisor shall determine, based upon a preponderance of the documentary evidence, whether the officer's actions are in contravention of the Policies. If the result of the review is a determination that the officer's actions are in contravention of the Policies, the supervisor shall refer the matter to his or her command for action consistent with the policy established under section IV.B.c.2.c. If the result of the review is a determination that the officer's actions are consistent with the Policies, the supervisor shall determine the necessity, if any, for non-punitive counseling.
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CCaassee 11::0066--ccvv--0011886633--CCCCBB DDooccuummeenntt 229956--21 FFiilleedd 0066//2295//1100 PPaaggee 2233 ooff 5577
3. Upon completion of the review, the investigating supervisor shall provide written documentation of the process and the results of the investigation in the form of a review memorandum. The review memorandum shall specifically document the conduct of the investigation, the outcome of the review and whether the supervisor provided the officer with non-punitive counseling.
4. When an officer's performance is being reviewed as part of the Department's periodic performance evaluation process, copies of any review memoranda created during the period under review shall be provided to and considered by the reviewing officer in evaluating the subject officer's performance.
5. When an officer, who is the supervisor of other officers, is the subject of a review as part of the Department's periodic performance evaluation process, copies of any review memoranda relating to the officer under the subject officer's supervision created during the period under review will be provided to and considered by the reviewing officer in evaluating the subject officer's performance.
6. The Municipal Defendants shall monitor citizen complaints related to Quality of Life Offenses to gauge the effectiveness of training and to detect the need for new or further training.
7. Except with respect to complaints subject to the statutory requirements of Article 4, section 16-44 ofthe Public Local Laws of Maryland, the Municipal Defendants shall monitor and be responsible for completing all investigations and shall not have discretion to reject a citizen complaint without investigation if sufficient information is provided to or obtained by the Municipal Defendants through reasonable investigation.
23

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8. Within 120 days of the effective date of this Agreement, the Municipal

Defendants shall create and maintain individual training records for all police officers,

documenting the date and topic of all pre-service and in-service training completed. These

records shall also reflect whether the training was completed satisfactorily, as well as the reasons

for any mandatory re-training.

f) Training 1. Within 180 days of the effective date of the Agreement, the Department shall

develop training curricula for pre-service and annual in-service training regarding Quality of Life

Offenses, assessing probable cause, rights protected by the First Amendment to the U.S.

Constitution, especially the lawful exercise of those rights on City sidewalks and other public

areas, and the appropriate officer response when an individual requests an officer's name and

badge number.

2. The training curricula shall include, but is not limited to, the following:

a. the elements of each Quality of Life Offense;

b. the range of appropriate responses to various factual scenarios involving

Quality of Life Offenses;

c.

the range of appropriate responses to various factual scenarios involving

conduct that is protected by the First Amendment to the U.S. Constitution;

d. techniques for writing incident reports and statements of probable cause to

accurately articulate particularized facts sufficient to justify arrest for

Quality of Life Offenses;

e. the citizen complaint process, and officers' obligation to cooperate with

the resulting investigations;

24

CCaassee 11::0066--ccvv--0011886633--CCCCBB DDooccuummeenntt 229956--21 FFiilleedd 0066//2295//1100 PPaaggee 2255 ooff 5577
f. an officer's duty to provide his or her name and badge number upon request.
3. Within 120 days of the effective date of this Agreement, the Department shall provide the training curricula required by section IV.B.l.f. to the Auditor and Plaintiffs' Counsel for comment, to be received no later than 30 days from receipt of the curricula. The Department shall consider in good faith any comments so received, but is not required to make any changes to the curricula based upon the comments.
4. Pre-service training based upon the training curricula required by this section shall be provided to all incoming classes as of the first incoming academy class after the finalization of the training curricula required by section IV.B.l.f.l-2.
5. In-service training based upon the training curricula required by this section shall be provided to officers beginning with in-service training that occurs within 90 days of the finalization of the training curricula required under IV.B.l.f.1-2 and shall continue for all inservice training sessions provided during the term of this Agreement.
6. Notice of this in-service training shall be disseminated to all officers employed by the Department as of the Effective Date of this Agreement within 120 days of the Effective Date of this Agreement.
C. Payments to Plaintiffs Within 60 days of the Effective Date of this Agreement, the Municipal Defendants shall remit to Plaintiffs' Counsel $630,000.00 in payments to Plaintiffs, in damages, attorneys' fees and costs.
D. Confidentiality of Settlement Amounts The total amount recovered by any individual NAACP Plaintiff as a result of this Settlement shall be kept completely confidential, and shall be disclosed to no one other that Plaintiffs'
25

CCaassee 11::0066--ccvv--0011886633--CCCCBB DDooccuummeenntt 229956--21 FFiilleedd 0066//2295//1100 PPaaggee 2266 ooff 5577
Counsel, that individual NAACP Plaintiff and such person's spouse (or significant other) and immediate family, such person's accounting, financial and legal advisors, the Internal Revenue Service and as otherwise required by law. Each of the above persons or entities to whom such authorized disclosures are made shall, in tum, be required to maintain the confidentiality of such information. The confidentiality obligations imposed by this paragraph are perpetual and shall survive termination of this Agreement for any reason. This provision may be enforced as an order of the court. E. Dismissal of Released Claims Against Released Parties
I. Promptly after execution of this Agreement by all Settling Parties, and approval by the City's Board of Estimates pursuant to section IV.G.5., the NAACP Plaintiffs shall submit the Agreement, together with its Attachments, to the Court requesting that the Court enter as soon as practicable an order, substantially in the form of Attachment B hereto, dismissing the Released Persons from all Released Claims. F. Releases
I. Upon issuance of an Order dismissing the Released Persons from all Released Claims, the NAACP Plaintiffs, shall be deemed to have fully, finally, and forever released, relinquished, and discharged all Released Claims and any and all claims, known or unknown, arising out of, relating to, or in connection with the settlement or resolution of the Action against the Released Persons, except for claims for failure to comply with the requirements of this Agreement.
2. Upon the Effective Date, each of the Released Persons shall be deemed to have, and by operation of the dismissal shall have, fully, finally and forever released, relinquished, and discharged each and all of the NAACP Plaintiffs from all claims (including unknown claims)
26

CCaassee 11::0066--ccvv--0011886633--CCCCBB DDooccuummeenntt 229956--21 FFiilleedd 0066//2295//1100 PPaaggee 2277 ooff 5577
arising out of, relating to, or in connection with the institution, prosecution, assertion, settlement, or resolution of the Action or the Released Claims. G. Miscellaneous Provisions
l. Cooperation of the Parties. The Settling Parties (a) intend to consummate the Settlement contemplated by and provided for in this Agreement; and (b) will cooperate to the extent reasonably necessary to effectuate and implement the Settlement and all terms and conditions of the Agreement.
2. Full and Final Settlement. The Settling Parties intend this Agreement to be a final and complete resolution of all disputes between them with respect to the Action. This Agreement compromises claims that are contested and shall not be deemed an admission by any Settling Party as to the merits of any claim, allegation or defense.
3. No Admissions. Neither this Agreement nor any act performed or document executed pursuant to or in furtherance of the Agreement: (a) is or may be deemed to be or may be used as an admission of, or evidence of, the validity of any Released Claim, or of any wrongdoing or liability of the Municipal Defendants and/or the Released Persons; or (b) is or may be deemed to be or may be used as an admission of, or evidence of, any fault or omission of any of the Municipal Defendants, the Released Persons, or any other member of the Baltimore Police Department in any civil, criminal, or administrative proceeding in any court, administrative agency, or other tribunal. The Municipal Defendants and the Released Persons may file the Agreement and/or the dismissal in any action that may be brought against them in any state or federal court to support a defense or counterclaim based on principles of res judicata, collateral estoppel, release, good faith settlement, judgment bar or reduction, or any other theory of claim preclusion or issue preclusion or similar defense or counterclaim.
27

CCaassee 11::0066--ccvv--0011886633--CCCCBB DDooccuummeenntt 229956--21 FFiilleedd 0066//2295//1100 PPaaggee 2288 ooff 5577
4. Joint Public Statement. The Settling Parties agree to issue a joint public statement to the media regarding the resolution of the Action. The joint public statement shall be in a form approved by the Settling Parties and attached hereto as Attachment C.
5. Approval by City's Board of Estimates. The Settling Parties understand that payment to Plaintiffs pursuant to section IV.C is subject to, and contingent upon, the prior approval of the City's Board of Estimates. If the payment to the Plaintiffs as set forth in section IV.C is not approved by the City's Board of Estimates this Agreement shall be null and void.
6. Attachments. The Attachments to this Agreement are material and integral parts and are fully incorporated by this reference.
7. Modification. The Agreement may be amended or modified only by a writing signed by or on behalf of all Settling Parties or their respective successors-in-interest.
8. Entire Agreement. This Agreement, the Attachments and any documents incorporated by reference constitute the entire agreement among the parties and no representations, warranties or inducements have been made to any party concerning the Agreement or its Attachments, other than the representations, warranties, and covenants in such documents. Except as otherwise provided, each party shall bear its own costs.
9. Warrant of Authority. Each counsel or other person executing the Agreement or its Attachments on behalf of any party warrants that such person has the full authority to do so.
10. Counterparts. The Agreement may be executed in one or more counterparts. Each executed counterpart shall be deemed to be one and the same instrument.
11. Binding Effect. The Agreement shall be binding up, and inure to the benefit of, the successors and assigns of the parties hereto.
28

CCaassee 11::0066--ccvv--0011886633--CCCCBB DDooccuummeenntt 229956--21 FFiilleedd 0066//2295//1100 PPaaggee 2299 ooff 5577
12. Specific Performance. The Settling Parties agree that damages pursuant to any breach of the Agreement are incalculable and any breach of this Agreement may be remedied only by specific performance of the contract.
13. Attorneys' Fees. Any party that prevails in an action to enforce this agreement shall be entitled to recover its reasonable attorneys' fees in conjunction with such an action, pursuant to 42 U.S.C. § 1988.
14. Governing Law. This Agreement and its enforcement shall be governed by, and construed in accordance with, the laws of the State of Maryland. Any suit or enforcement proceeding arising out of this Agreement shall be brought or maintained exclusively in the United States District Court for the District of Maryland. Each party hereby irrevocably submits to the exclusive jurisdiction of such court, and waives any objection which it may have at any time to the laying of venue of any proceeding brought in said court, waives any claim that such proceeding has been brought in an inconvenient forum, and waives the right to object that such court does not have any jurisdiction over such party with respect to such proceeding.
15. Enforcement. This Agreement shall be enforceable in the United States District Court for the District of Maryland by any of the parties acting alone or in concert, and the United States District Court for the District of Maryland shall retain jurisdiction over the case for the purpose of enforcing this Agreement. The Settling Parties agree that they will not challenge the Court's jurisdiction. If the Court elects not to retain jurisdiction for the purpose of enforcing this Agreement the Settling Parties will renegotiate this Agreement concerning the enforcement of this Agreement.
16. Recovery/Destruction of Discovery Materials. Within 30 days of approval of the settlement sum by the Board of Estimates, the NAACP Plaintiffs and Plaintiffs' Counsel shall
29

CCaassee 11::0066--ccvv--0011886633--CCCCBB DDooccuummeenntt 229956--21 FFiilleedd 0066//2295//1100 PPaaggee 3300 ooff 5577
return to the Municipal Defendants any and all materials, including, but not limited to, documents, recordings, transcripts, or electronically stored information, in whatever form, obtained from the Municipal Defendants in the Action. The Municipal Defendants shall retain all such materials stored together and in an accessible manner. If Plaintiffs believe the materials are relevant to an enforcement dispute among the Settling Parties prior to the termination of this Agreement, they shall request, in writing, access to the materials. If the Municipal Defendants believe Plaintiffs' request for access is unreasonable, the Settling Parties may seek the intervention of the Court.
The undersigned represents that he or she has read an understood the terms of this Stipulation of Settlement prior to executing same.

le Stephanie R wlings-Blake Mayor, Baltimore City
Dated:_CC_\+-'\_4---+-\\_D_ _

,III

Police Commissi<:?ner, Baltimore Police Department

Dated:

f£;/q/to •

George A. Nilson

City Solicitor, Baltimore City

G/ Dated:

)v

30

CCaassee 11::0066--ccvv--0011886633--CCCCBB DDooccuummeenntt 229956--21 FFiilleedd 0066//2295//1100 PPaaggee 3311 ooff 5577
MARYLAND STATE CONFERENCE OF NAACP BRANCHES, et aL v. BALTIMORE CITY POLICE DEPARTMENT, et al. STIPULATION OF SETTLEMENT May 3, 2010
APPROVED BY THE BOARD OF ESTIMATES:
J~;j.UN 2 3 2010
Date

CCaassee 11::0066--ccvv--0011886633--CCCCBB DDooccuummeenntt 229956--21 FFiilleedd 0066//2295//1100 PPaaggee 3322 ooff 5577
IT IS HEREBY AGREED, BY AND BETWEEN THE PARTIES, THisZS"".ti DAY OF ~,vi! ' 2010.
Mitchell Karlan Gibson, Dunn & Crutcher Counsel for Plaintiffs
David Rocah ACLU of Maryland Foundation Counsel for Plaintiffs

CCaassee 11::0066--ccvv--0011886633--CCCCBB DDooccuummeenntt 229956--21 FFiilleedd 0066//2295//1100 PPaaggee 3333 ooff 5577
IT IS HEREBY AGREED, BY AND BETWEEN THE PARTIES, THIS 5..-J DAY OF
~'"t"' . 2010.
Mitchell Karlan Gibson, Dunn & Crutcher Counsel for Plaintiffs
DaVId Rocah ACLU ofMaryland Foundation Counsel for Plaintiffs

CCaassee 11::0066--ccvv--0011886633--CCCCBB DDooccuummeenntt 229956--21 FFiilleedd 0066//2295//1100 PPaaggee 3344 ooff 5577

- - - - - - - - - - · --- ..

- ----- -----

The undersigned represents that he or she has read and understood the terms of this Stipulation of Settlement prior to executing same.
0G~= -~ ~ President, Maryland State Conference ofNAACP Branches /z Dated: (, (n>

39

CCaassee 11::0066--ccvv--0011886633--CCCCBB DDooccuummeenntt 229956--21 FFiilleedd 0066//2295//1100 PPaaggee 3355 ooff 5577
---=--· -----The undersigned represents that he or she has read and understood the terms of
this Stipulation of Settlement prior to executing same.
40

CCaassee 11::0066--ccvv--0011886633--CCCCBB DDooccuummeenntt 229956--21 FFiilleedd 0066//2295//1100 PPaaggee 3366 ooff 5577 The undersigned represents that he or she has read and understood the terms of this Stipulation of Settlement prior to executing same.
"I t:vovD '1~ I I
Evan Howard
Dated: s{zof,o
41

CCaassee 11::0066--ccvv--0011886633--CCCCBB DDooccuummeenntt 229956--21 FFiilleedd 0066//2295//1100 PPaaggee 3377 ooff 5577
-----···· ·---··-----------

The undersigned represents that he or she has read and understood the terms of

---- this Stipulation of Settlement prior to executing same.

/~--

.

/ /

····-.... ..

i' (..

Dated: 5-/9 ·2oto

42

CCaassee 11::0066--ccvv--0011886633--CCCCBB DDooccuummeenntt 229956--21 FFiilleedd 0066//2295//1100 PPaaggee 3388 ooff 5577

-------·-------- --------------------·

"':

The undersigned represents that he or she has read and understood the terms of this Stipulation of Settlement prior to executing same.
GJLJ:6J Donald Wilson h- /0 Dated: )..0-

43

CCaassee 11::0066--ccvv--0011886633--CCCCBB DDooccuummeenntt 229956--21 FFiilleedd 0066//2295//1100 PPaaggee 3399 ooff 5577

The undersigned represents that he or she has read and understood the terms of this Stipulation of Settlement prior to executing same.

a/~ -

Robert Lowery

s-/ar Dated:

/t_ lJ

(

44

CCaassee 11::0066--ccvv--0011886633--CCCCBB DDooccuummeenntt 229956--21 FFiilleedd 0066//2295//1100 PPaaggee 4400 ooff 5577
The undersigned represents that he or she has read and understood the terms of this Stipulation of Settlement prior to executing same.
Dated: ,;--d-1- trl
45

CCaassee 11::0066--ccvv--0011886633--CCCCBB DDooccuummeenntt 229956--21 FFiilleedd 0066//2295//1100 PPaaggee 4411 ooff 5577 The undersigned represents that he or she has read and understood the terms of this Stipulation of Settlement prior to executing same.
Tim::: -~Jt nson •
Dated: 5· 21- l 0
46

CCaassee 11::0066--ccvv--0011886633--CCCCBB DDooccuummeenntt 229956--21 FFiilleedd 0066//2295//1100 PPaaggee 4422 ooff 5577
--- -------------------------------------
The undersigned represents that he or she has read and understood the terms of this Stipulation of Settlement prior to executing same.
~0~
Tavis Cr~c~:~ ~~ Dated:~
47

CCaassee 11::0066--ccvv--0011886633--CCCCBB DDooccuummeenntt 229956--21 FFiilleedd 0066//2295//1100 PPaaggee 4433 ooff 5577

The undersigned represents that he or she has read and understood the terms of

this Stipulation of Settlement prior to executing same.

mj~

,,

5. rq ~ -z-a Lu
Dated:------

48

CCaassee 11::0066--ccvv--0011886633--CCCCBB DDooccuummeenntt 229956--21 FFiilleedd 0066//2295//1100 PPaaggee 4444 ooff 5577 The undersigned represents that he or she has read and understood the terms of this Stipulation of Settlement prior to executing same.
K'PMi1f ~.
Kerrell Wright¥
~~ Dated:
49

CCaassee 11::0066--ccvv--0011886633--CCCCBB DDooccuummeenntt 229956--21 FFiilleedd 0066//2295//1100 PPaaggee 4455 ooff 5577
-------····- --·--
The Lrdersigrro rfP'esents that he a she ras read ard urderstocx::! the tams of this
StiplJatioo of Settlement pior to executing same.
~
r- Dated: .s:~ 1 :z.CJ1u
50

CCaassee 11::0066--ccvv--0011886633--CCCCBB DDooccuummeenntt 229956--21 FFiilleedd 0066//2295//1100 PPaaggee 4466 ooff 5577
The undersigned represents that he or she has read and understood the terms of this Stipulation of Settlement prior to executing same.
&.4~
Erin Marcus
Dated: 5po/JD
52

CCaassee 11::0066--ccvv--0011886633--CCCCBB DDooccuummeenntt 229956--21 FFiilleedd 0066//2295//1100 PPaaggee 4477 ooff 5577
The undersigned represents that he or she has read and understood the terms of
a this Stipulation of Settlement prior to executing same.
Dated: 2o 10 M'Y Z3
52

CCaassee 11::0066--ccvv--0011886633--CCCCBB DDooccuummeenntt 229956--21 FFiilleedd 0066//2295//1100 PPaaggee 4488 ooff 5577 The undersigned represents that he or she has read and understood the terms of this Stipulation of Settlement prior to executing same.
53

CCaassee 11::0066--ccvv--0011886633--CCCCBB DDooccuummeenntt 229956--21 FFiilleedd 0066//2295//1100 PPaaggee 4499 ooff 5577
Attachment A
1. Within 30 days of the Effective Date of this Agreement, the Department shall issue a policy stating that the Department does not support a policy of Zero Tolerance Policing. Quality of Life Offenses committed in an officer's presence may be enforced by several means, including but not limited to: counseling, verbal warning, written citation or arrest. The Department shall enforce this policy as set forth in sections IV.B.l.c and IV.B.l.e ofthis Agreement. [IV.B.l.a.l]
• The Auditor shall report on the Department's compliance with the preferential responses required by this policy.
2. Within 30 days of the Effective Date of this Agreement, the Department shall issue a written directive or directives enumerating the elements of each Quality of Life Offense and providing guidance on appropriately identifying and reacting to conduct that does and does not amount to a Quality of Life Offense, including guidance on conduct that is protected by the First Amendment to the U. S Constitution. The Department shall enforce the directive or directives as set forth in sections IV.B.l.c and IV.B.l.e of this Agreement. [IV.B.l.a.2]
3. The written directive or directives concerning Quality of Life Offenses required by Section IV.B.l.a.2 shall include a requirement that any time an officer effects a custodial arrest for a Quality of Life Offense, the officer shall record in the incident report and the statement of probable cause the factual basis for his or her decision to effect a custodial arrest, rather than providing counseling, a verbal warning or issuing a citation. [IV.B.l.a.2.a]
a. The Auditor shall review a statistically meaningful sample of statements of probable cause required by section IV.B.l.a.2.a to determine whether the factual narrative of the arrest could on its face support a finding of probable cause and that the arrest was in accord with the Policies.
4. Within 30 days of the effective date of this Agreement, the Department shall issue a written directive requiring officers to provide their names and badge numbers to any individual who requests this information. [IV.B.l.a.3]
5. The Zero Tolerance Policing policy required by section IV.B.l.a.l shall not be rescinded or diminished by the Department during the term of this Agreement. [IV.B.l.a.4]
6. The written directive or directives required by section IV.B.l.a.2 shall not be rescinded or diminished by the Department during the term of this Agreement unless (a) the Department determines, in good faith and upon advice of counsel, that the policies conflict or will conflict with any applicable law, regulation, or

CCaassee 11::0066--ccvv--0011886633--CCCCBB DDooccuummeenntt 229956--21 FFiilleedd 0066//2295//1100 PPaaggee 5500 ooff 5577
("LEOBR"), Md. Ann. Code, Public Safety Art., § 3-101, et seq., to be taken by the Department when an officer's conduct is deemed to be in contravention of the Policies;
d. establish confidentiality and security policies and procedures for the database; and
e. establish procedures to test the accuracy and security of data in the database. [IV.B.l.c.2.a-e]
11. Within 365 days of the effective date of this Agreement, the Department shall develop protocols for use of the database in evaluating compliance with the Policies. Such protocols shall establish reasonable triggering thresholds for review of officer conduct to monitor effective compliance with the Policies. [IV.B.l.c.3 et. seq.]
• The protocols referred to here are the "triggering points" for the EWS. The Auditor will confirm that each of the protocols required by the Agreement are developed and implemented. The Auditor will also report on the efficacy of the triggering points established by the Department.
12. Within 90 days of the effective date of this Agreement, the Municipal Defendants shall enter all citizen complaints into a database. The database shall include the file number of the complaint (also provided to the complainant); the names of all accused officers, if provided or known; contact information for all complainants, non-accused but related officers, and witnesses, if provided or known; the race and gender of all involved officers and complainants if known or ascertainable by reasonable investigation; a narrative description of the allegations; significant dates; the street address and district of the incident; and the disposition of the complaint (sustained, not sustained, unfounded or exonerated). [IV.B.1.d.l]
13. Complainants shall be allowed to initiate complaints against an officer in person, by telephone, by mail, by fax, or via the internet. A complainant shall not be required to fill out or sign a form to initiate a complaint. Municipal Defendants may seek from the complainant sufficient information to enable the identification of the involved officers and incident. [IV.B.l.d.3]
• For Tasks 13, 14, 18 - 21, the Settling Parties anticipate that the Auditor will evaluate the Department's compliance with this task by reviewing a statistically meaningful sample of complaint investigation files and other documentation, if any, identified by the Auditor. Such sample shall include a meaningful percentage of investigation files regarding complaints for false arrest or lack of probable cause for Quality of Life Offenses to satisfy section IV.B.l.b.18 of this Agreement.
14. Complainants shall be permitted to initiate complaints anonymously, in writing or verbally. Third-party complaints shall be allowed. [IV.B.1.d.4]
3

CCaassee 11::0066--ccvv--0011886633--CCCCBB DDooccuummeenntt 229956--21 FFiilleedd 0066//2295//1100 PPaaggee 5511 ooff 5577
15. Within 180 days ofthe Effective Date ofthis Agreement, a telephone number shall be created to allow for toll free calls to initiate complaints. [IV.B.1.d.5]
16. Within 180 days of the Effective Date of this Agreement, the telephone number shall be advertised with the goal that Baltimore residents and visitors should be generally aware of how to initiate a complaint.[IV.B.l.d.6]
17. Within 365 days ofthe Effective Date of this Agreement, the Municipal Defendants shall publicize information concerning the purpose and goals of the citizen complaint and resolution process, and the process for initiating a complaint, including publishing and distributing pamphlets describing the complaint and resolution process and holding at least one community meeting in each police district. [IV.B.l.d.7]
18. Investigators shall attempt to interview complainants and witnesses at their own convenience, but, if necessary, shall offer to conduct interviews during nonbusiness hours or at locations other than Departmental offices. [IV.B.I.d.8]
19. If conduct in contravention of Departmental policy other than the conduct alleged by the complainant is discovered in the course of an investigation, the Department shall investigate such other conduct. [IV.B.I.d.9]
20. Upon request, the Department shall provide a complainant reasonable updates on the status of the investigation. Even absent any such request for information, complainants shall be apprised of the status of open complaints every 60 days and promptly upon resolution of the investigation. [IV.B.l.d.I 0]
21. All findings shall be based on the "preponderance of the evidence" standard, and all investigators shall be trained on that standard. Investigators shall be required to state the factual basis for each finding in the final report of each investigation. [IV.B.I.d.ll]
22. The Municipal Defendants shall make final determinations of all citizen complaints, and shall inform each complainant in writing of the final determination on his or her complaint. [IV.B.l.d.12]
23. When a review of an officer's performance is triggered by a data analysis under Section IV.B.l.c.3, the Department shall notify the appropriate supervisor of the officer or officers in question. This notice shall include the information available from the Section IV.B.l.c.3 database that triggered the review.[IV.B.l.e.l]
24. Once notified, a supervisor shall conduct a reasonable investigation of the performance of the officer in question by reviewing records relating to the conduct that triggered the review (e.g., complaint records, statements of probable cause, incident reports, etc.). The review shall specifically include a determination of the sufficiency of the probable cause underlying each Quality of Life arrest that is associated with the conduct under review. Based upon the review of related records, the supervisor shall determine, based upon a
4

CCaassee 11::0066--ccvv--0011886633--CCCCBB DDooccuummeenntt 229956--21 FFiilleedd 0066//2295//1100 PPaaggee 5522 ooff 5577
preponderance of the documentary evidence, whether the officer's actions are in contravention of the Policies. If the result of the review is a determination that the officer's actions are in contravention of the Policies, the supervisor shall refer the matter to his or her command for action consistent with the policy established under section IV.B.c.2.c. If the result of the review is a determination that the officer's actions are consistent with the Policies, the supervisor shall determine the necessity, if any, for non-punitive counseling.[IV.B.l.e.2]
• The Settling Parties expect the Auditor to evaluate and report on the completion of the supervisory review and the determination of the sufficiency of the probable cause and compliance with the Policies as required by this section.
25. Upon completion of the review, the investigating supervisor shall provide written documentation of the process and the results of the investigation in the form of a review memorandum. The review memorandum shall specifically document the conduct of the investigation, the outcome of the review and whether the supervisor provided the officer with non-punitive counseling. [IV.B.l.e.3]
26. When an officer's performance is being reviewed as part of the Department's periodic performance evaluation process, copies of any review memoranda created during the period under review shall be provided to and considered by the reviewing officer in evaluating the subject officer's performance.[IV.B.l.e.4]
27. When an officer, who is the supervisor of other officers, is the subject of a review as part of the Department's periodic performance evaluation process, copies of any review memoranda relating to the officer under the subject officer's supervision created during the period under review will be provided to and considered by the reviewing officer in evaluating the subject officer's performance. [IV.B.l.e.5]
28. The Municipal Defendants shall monitor citizen complaints related to Quality of Life Offenses to gauge the effectiveness of training and to detect the need for new or further training. [IV.B.l.e.6]
29. Except with respect to complaints subject to the statutory requirements of Article 4, section 16-44 of the Public Local Laws of Maryland, the Municipal Defendants shall monitor and be responsible for completing all investigations and shall not have discretion to reject a citizen complaint without investigation if sufficient information is provided to or obtained by the Municipal Defendants through reasonable investigation. [IV.B.l.e.7]
30. Within 120 days of the effective date of this Agreement, the Municipal Defendants shall create and maintain individual training records for all police officers, documenting the date and topic of all pre-service and in-service training completed. These records shall also reflect whether the training was completed satisfactorily, as well as the reasons for any mandatory re-training. [IV.B.l.e.8]
5

CCaassee 11::0066--ccvv--0011886633--CCCCBB DDooccuummeenntt 229956--21 FFiilleedd 0066//2295//1100 PPaaggee 5533 ooff 5577
31. Within 180 days of the effective date of the Agreement, the Department shall develop training curricula for pre-service and annual in-service training regarding Quality of Life Offenses, assessing probable cause, rights protected by the First Amendment to the U.S. Constitution, especially the lawful exercise of those rights on City sidewalks and other public areas, and the appropriate officer response when an individual requests an officer's name and badge number. [IV.B.l.f.l] • The specific contents of the training are found in section IV.B.l.f.2.a-f. The Auditor shall report whether the training curricula includes the subject areas required by the Agreement.
32. Within 120 days of the effective date of this Agreement, the Department shall provide the training curricula required by section IV.B.l.f. to the Auditor and Plaintiffs' Counsel for comment, to be received no later than 30 days from receipt of the curricula. The Department shall consider in good faith any comments so received, but is not required to make any changes to the curricula based upon the comments. [IV.B.l.f.3]
33. Pre-service training based upon the training curricula required by this section shall be provided to all incoming classes as of the first incoming academy class after the finalization of the training curricula required under section IV.B.l.f.l 2. [IV.B.l.f.4]
34. In-service training based upon the training curricula required by this section shall be provided to officers beginning with in-service training that occurs within 90 days of the finalization of the training curricula required under section IV.B.l.f.l - 2, and shall continue for all in-service training sessions provided during the term ofthis Agreement. [IV.B.l.f.5]
35. Notice of this in-service training shall be disseminated to all officers employed by the Department as of the effective date of this Agreement within 120 days of the effective date of this Agreement. [IV.B.l.f.6]
6

CCaassee 11::0066--ccvv--0011886633--CCCCBB DDooccuummeenntt 229956--21 FFiilleedd 0066//2295//1100 PPaaggee 5544 ooff 5577
court order; or (b) the Department determines in good faith that such rescission or diminishment is necessary for the safety of the public or Department personnel. In the event the Department concludes a modification of the written directive or directives required by section IV.B.l.a.2 is necessary, it will notify Plaintiffs' Counsel of the planned modification and offer a reasonable opportunity for Plaintiffs' Counsel to comment upon it. The Department shall in good faith consider such comments [IV.B.l.a.S]
7. The Municipal Defendants shall provide the Auditor with access to all officers, employees, documents, and data of the Municipal Defendants that are reasonably necessary to complete the Tasks enumerated in this Agreement. [IV.B.1.b.11]
8. Within 120 days ofthe Effective Date of this Agreement, the Department shall develop a document and database retention protocol to maintain and retain all records, including documents and the database described in Section IV.B.1.c of this Agreement, documenting compliance with the terms of this Agreement and all documents required by or developed pursuant to this Agreement. The protocol shall be evaluated and reported on by the Auditor. [IV.B.l.b.16]
9. Within 180 days of the effective date of this Agreement, the Municipal Defendants shall create and automate a database to track police officer performance. [IV.B.l.c.l et.seq.]
10. Within 180 days ofthe effective date of this Agreement, the Department shall:
a. establish and enforce a policy and procedure requiring shift supervisors to review statements of probable cause for custodial arrests for Quality of Life Offenses to ensure that probable cause in fact existed and that the arrest was in accord with the Policies. If, after this agreement has been in effect for 365 days, the result of the review is a determination that the arrest was in contravention of the Policies, the supervisor shall refer the matter to his or her command for action consistent with the policy established under section IV.B.l.c.2.c. If the result of the review is a determination that the arrest is consistent with the Policies, the supervisor shall determine the necessity, if any, for non-punitive counseling.
b. establish and enforce a policy and procedure requiring a line supervisor's review of probable cause statements for custodial arrests for Quality of Life Offenses is reviewed by second-level supervisors on a periodic basis, not to exceed every six months, to ensure that probable cause in fact existed and that the arrest was in accord with the Policies;
c. establish a policy identifying corrective actions, up to and including disciplinary action, as warranted and consistent with established Departmental disciplinary policies, procedures, contracts, memoranda of understanding, and all applicable laws governing the discipline of law enforcement officers, including, but not limited to the Law Enforcement Officer's Bill of Rights
2

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Attachment B
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND
MARYLAND STATE CONFERENCE OF NAACP BRANCHES, et al.,
Plaintiffs,

v.

Civil Action No. 06-cv-1863-CCB

BALTIMORE CITY POLICE DEPARTMENT, et al.,
Defendants.

AGREED ORDER OF DISMISSAL
This Order dismisses all claims made in the above-captioned case by the Maryland State Conference of NAACP Branches, Baltimore City Branch of the NAACP, Evan Howard, Tyrone Braxton, Donald Wilson, Robert Lowery, Aaron Stoner, Timothy Johnson, Tavis Crockett, Raffic Scott, Kerrell Wright, Carol Higgs, Armondo Horsey, Jonathan Lindsay, Erin Marcus, and Jeffrey Chapman ("Plaintiffs") against the Baltimore City Police Department, the Mayor and City Council of Baltimore, Martin O'Malley, Sheila Dixon, Leonard Hamm, Marcus Brown, Frederick Bealefeld, Kevin Clark, Edward T. Norris, Jemini Jones, David A. Crites, Jr., Erik Pecha, Benjamin Newkirk, Arnold Jones, Peter Heron, Johnta Grey, Joseph Chin, Paul Southard, Michael Pinkosz, Lolando Hamilton, Ronald Mealey, and John Does 1-100 (the "City Defendants").

CCaassee 11::0066--ccvv--0011886633--CCCCBB DDooccuummeenntt 229956--21 FFiilleedd 0066//2295//1100 PPaaggee 5566 ooff 5577
The Plaintiffs and the City Defendants (collectively, "the parties") hereby agree that this case has been settled and that all issues and controversies have been resolved to their mutual satisfaction. The parties request the Court to retain jurisdiction to enforce the terms of the settlement agreement under the authority of Kokkonen v. Guardian Life Insurance Co. of America, 511 U.S. 375,381-82 (1994):
IT IS HEREBY ORDERED: 1. The parties entered into a settlement agreement on _ _ _ _ _ _ _, 2010, a copy of
which is attached hereto. 2. By consent of the parties, the Court shall retain jurisdiction for the purpose of
enforcing the terms of the agreement as set forth in the agreement. 3. The Court's jurisdiction shall terminate on or before the date which is four years from
the entry of this Order, as set forth in the agreement. 4. Except as provided for in paragraphs 2 and 3 above, this case is dismissed, with
prejudice.
IT IS SO ORDERED this _ _ day of _ _ _ _ _, 2010.
Catherine C. Blake United States District Judge

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Attachment C
***JOINT STATEMENT OF THE PARTIES***
The American Civil Liberties Union of Maryland (ACLU). the Maryland State Conference and Baltimore City Branch of the NAACP. and the Baltimore City Police Department are pleased to announce that they have reached an agreement that will enhance police practices and will settle a longstanding lawsuit alleging improper arrests. The lawsuit was brought nearly four years ago, on behalf of the NAACP as well as 13 individual plaintiffs who alleged that they had been arrested without probable cause for "quality of life" offenses such as loitering and disorderly conduct.
Under the terms of the settlement, the Police Department has agreed to institute policies that reject "Zero-Tolerance Policing" and establish a range of appropriate officer responses when faced with minor offenses. In addition, the Department will issue written directives that spell out the elements of common minor offenses to ensure that officers are aware of the scope of their authority. Every officer will be trained on the new policies for offenses, and the Department will monitor officer conduct to ensure compliance with the new policies. The Department's efforts and internal monitoring under the settlement will be reviewed by an independent auditor, who will file public reports regarding the Department's compliance.
The ACLU, NAACP, and the individual plaintiffs recognize that the Baltimore Police Department's current leadership has already taken steps to address the issues raised by this lawsuit and has engaged in diligent efforts to resolve this lawsuit in a positive and constructive manner. They applaud those efforts and the Department's willingness to take the additional steps set forth in this agreement. The Department recognizes that the individuals who brought this lawsuit have focused their efforts on systemic reforms that the parties all believe will · improve policing in Baltimore.
The parties have been engaged in this lawsuit for four years, and believe that it is in their best interests, and the best interest of the community, to bring finality to the case. The parties all want to see a safer Baltimore, and all want effective and lawful policing. We all believe that police respect for the citizens they serve and adherence to the Constitution are essential to achievement of our collective goal of making our community a safer one. The plaintiffs and the Department are gratified that this chapter has been brought to a close, and look forward to working together to realize the promise of the settlement announced today.
"We think this agreement is an important step for the Baltimore City Police Department," said Dr. Marvin L. Cheatham, President of the Baltimore City Branch of the NAACP, "and we appreciate the Police Commissioner's willingness to make these commitments"
"I appreciate the hard work and creative thinking that was necessary to craft this Agreement, which is certainly in line with my overall mission for this Police Department," said Police Commissioner Frederick H. Bealefeld, Ill, "and the BPD will continue its efforts to strengthen its relationship with the citizens of Baltimore, and welcomes the valued partnership it continues to forge with the current leadership of the NAACP, which extends beyond this Agreement."

 </s> Appeal: 13-2014CasDeo1c::0552-c-2v-01287F-CileCdB: 11D/1o4c/u20m1e4nt 47P9g: 1Fiolef d2 11/14/14 Page 1Toofta2l5Pages:(3 of 4)
FILED: November 14, 2014
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 13-2014 (I :05-cv-01287-CCB)
DANA T. WEST, individually and on behalf of all others similarly situated; ANTHONY HAIG; GARY SAUNDERS; MICHAEL WASHINGTON
Plaintiffs - Appellants and ERIC JONES; KEVIN ADAMS; TONIA BOWIE; DAVID COL YNS; AARON ROSS
Plaintiffs v. SUSAN MURPHY, former Warden, Baltimore Central Booking and Intake Center, individually and in her official capacity; WILLIAM JEDNORSKI, former Warden, Baltimore Central Booking and Intake Center, individually and in his official capacity
Defendants - Appellees and CITY OF BALTIMORE; BALTIMORE CITY POLICE DEPARTMENT; MAYOR AND CITY COUNCIL OF BALTIMORE; MITCHELL FRANKS, Warden, Baltimore Central Booking and Intake Center, individually and in his official capacity

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of 4)

Defendants

JUDGMENT
In accordance with the decision of this court, the judgment of the district court is affirmed.
This judgment shall take effect upon issuance of this court's mandate in accordance with Fed. R. App. P. 41.
/s/ PATRICIA S. CONNOR, CLERK

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PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 13-2014

DANA T. WEST, individually similarly situated; ANTHONY WASHINGTON,

and on behalf of all others HAIG; GARY SAUNDERS; MICHAEL

Plaintiffs - Appellants,

and

ERIC JONES; KEVIN ADAMS; TONIA BOWIE; DAVID COLYNS; AARON ROSS,

Plaintiffs,

v.

SUSAN MURPHY, former Warden, Baltimore Central Booking and Intake Center , individually and in her official capacity; WILLIAM JEDNORSKI, former Warden, Baltimore Central Booking and Intake Center, individually and in his official capacity,

Defendants - Appellees,

and

CITY OF BALTIMORE; BALTIMORE CITY POLICE DEPARTMENT; MAYOR AND CITY COUNCIL OF BALTIMORE; MITCHELL FRANKS, Warden, Bal timore Central Booking and Intake Center, individually and in his official capacity,

Defendants.

Appeal from the United States District Court for the District of

Maryland, at Baltimore.

Catherine C. Blake, District Judge.

(1:05-cv-01287-CCB)

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Argued: September 17, 2014

Decided: November 14, 2014

Before WILKINSON, SHEQD, and WYNN, Circuit Judges.

Affirmed by published opinion. Judge Wilkinson wrote the opinion, in which Judge Shedd and Judge Wynn joined. Judge Wynn wrote a separate concurring opinion.

ARGUED: Barrett Stephen Litt, KAYE MCLANE BEDNARSKI & LITT, Pasadena, California, for Appellants. William F. Brockman, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellees. ON BRIEF: Sean R. Day, Greenbelt, Maryland; William Claiborne, Washington, D.C., for Appellants. Douglas F. Gansler, Attorney General, Matthew J. Fader, Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellees.

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WILKINSON, Circuit Judge:

This 42 U.S.C. S 1983 action involves strip searches of

arrestees

in the Baltimore Central Booking and Intake Center.

The district

court granted defendants'

motions for summary

judgment on the grounds of qualified immunity. Jones v. Murphy,

2013 WL 822372, at *6 (D. Md. Mar. 5, 2013). We now affirm.

1.

A.

The named plaintiffs

are men who went through the booking

process at the Baltimore Central Booking and Intake Center in

Baltimore,

Maryland ("Central

Booking" ) They represent

a

certified

class of persons who were arrested between May 12,

2002, and April 30, 2008, "(a) on charges [or in cases] not

involving weapons, drugs, or felony violence,

and (b) strip

searched (c) prior to or without presentment before a court

commissioner or other judicial

officer."

Jones v. Murphy, 2013

WL 822372, at *3 (D. Md. Mar. 5, 2013). The district

court

defined

a strip

search as "the removal, pulling

down, or

rearrangement

of clothing

for the visual

inspection

of a

person's

genital

and/or anal areas, which may also include

requiring the person to squat and cough, in the presence of one

or more guards." Id. The defendants are two former wardens of

Central Booking.

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Central Booking opened in 1995. The facility has two sections: the booking area and the housing unit. Only activities on the booking floor are at issue in this case.
After an individual is arrested in Baltimore, a t'ransport officer brings him or her to Central Booking. Each arrestee enters the facility through a gender-specific sallyport, where an officer searches the arrestee with a metal detector and a pat-down. The sallyport officer puts a color-coded wristband on the arrestee. Scanning the barcode on the wristband allows an officer to view the arrestee's name, the charge, which officer arrested him, as well as the date, time, and location of the arrest. Some arrestees already have wristbands when they arrive; others come only with a "toe tag,ff which is a form listing the information that will be connected to the barcode. The sallyport officer also conducts a brief medical examination of the
arrestee.
Following that, arrestees proceed to a search room where officers conduct a more thorough search, bagging and inventorying any personal property. Plaintiffs allege that at this stage of the process correctional officers conducted strip searches of the type described by the class certification order. In order to conduct the search, officers remove arrestees' handcuffs or flex-cuffs, which generally remain off for the remainder of the booking procedure. From the search room, an
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officer guides the arrestee to an intake window, where an intake officer inputs toe~tag information into the computer system and asks medical questions. An officer then escorts the arrestee to another room to be fingerprinted and photographed. Eventually, the arrestee is either brought before a commissioner or released without charge.
Between the v"arious stages of the booking process, arrestees may be held in holding rooms with other arrestees. They remain in holding rooms while they wait to see a court commissioner, which under Maryland law must occur within 24 hours of the arrest. Md. Rule 4-2l2(f). Officers do not separate arrestees by crime of arrest or criminal history. In fact, officers often know only what is on the toe-tag, and even the name given on the toe-tag (and in the computer system) may be an alias. It is not until after the fingerprinting stage that officers have access to the arrestee's criminal history and any outstanding warrants. The holding rooms may contain up to 25 arrestees at a time, but over the course of his stay in Central Booking an arrestee may share a room with many more than 25 others because of the ingress and egress of people in any given holding room. The four named plaintiffs shared rooms with 55, 36, 35, and 20 different persons, respectively, who had been arrested for a variety of crimes, including firearm violations,
5

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drug crimes, assault, burglary, automobile theft, and armed robbery.
All told, Central Booking processed an average of 229 arrestees per day during the class period. Each arrestee inevitably interacted with many other arrestees during his stay, including those charged with both minor and serious offenses. Roughly three-quarters of class members were not committed to the housing unit, but in total only 51% of all arrestees were released either before or after seeing a court commissioner. Therefore, plaintiffs had "substantial contact with other detainees, including some who were later admitted to general population" of the housing unit. Jones, 2013 WL 822372, at *5.
As the district court noted, contraband poses significant security risks and dangers inside detention facilities. Weapons or other items may be used to attack officers or other arrestees. rd. at *2. Arrestees may overdose on drugs, or their intoxication may create additional burdens for officers. rd. Arrestees arriving at Central Booking have been found to have firearms, razor blades, knives, drugs, cigarettes, cell phones, and other items on their persons. rd.; J.A. at 193, 328, 335, 340-43, 567-68, 601-03, 611, 715-16, 1007-08, 1077-78, 1232-35, 1244-45, 1381-82, 1478-79, 1502-04, 1717, 1750-52. The more thorough searches in the search room have turned up drugs, cigarettes, lighters, money, cell phones, razor blades, and
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knives. Jones, 2013 WL 822372, at *2; J .A. at 193, 335, 340-43, 601-03, 1077, 1478-79, 1502-04, 1750-52. Even so, contraband has made its way into the holding rooms. According to the testimony of correctional officers, one arrestee was wounded by box cutters, and another attempted to commit suicide with a razor blade. Jones, 2013 WL 822372, at *2; J.A. at 716, 1007. Plaintiffs acknowledge arrestees used drugs while in holding rooms. Jones, 2013 WL 822372, at *2; J.A. at 1342, 1812-13.
B. This litigation has been ongoing since arrestees filed. their initial complaint in 2005. The Fourth Amended Complaint consisted of twelve counts and sought certification of five separate class actions. This appeal concerns only Count 1, which the district court certified under Federal Rule of Civil Procedure 54 (b). In 2007, the district court initially denied defendants' motions to dismiss, holding that the wardens were not entitled to qualified immunity because "the right of those arrested for offenses not likely to involve weapons or contraband to be free from strip searches without any individualized finding of reasonable suspicion appears to be clearly established" in the Fourth Circuit. Jones v. Murphy, 470 F. Supp. 2d 537, 547 (D. Md. 2007) (citing Amaechi v. West, 237 F.3d 356, 365 (4th Cir. 2001); Abshire v. Walls, 830 F.2d 1277, 1279-80 (4th Cir. 1987); Logan v. Shealy, 660 F.2d 1007, 1013
7

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(4th Cir. 1981)). However, the court reversed course in its 2013

summary judgment opinion, highlighting "the present lack of a

clear test applicable to the specific circumstances of detention

practices at [Central Booking] during the years at issue in this litigation.R Jones, 2013 WL 822372, at *6. This more recent

decision is the subject of this appeal.

The Supreme Court's intervening decision in Florence v.

Board of Chosen Freeholders of County of Burlington, 132 S. Ct.

1510 .(2012), prompted the district court to change direction.

The Supreme Court held that "every detainee who will be admitted

to the general population [of a jail] may be required to undergo a close visual inspection while undressed.R Id. at 1513. The

district court determined that Florence "overruled some aspects of Fourth Circuit lawR on which the 2007 decision had "relied,R

and "left the contours of any 'exception' that would apply to the plaintiffs in this case unclear and open to debate.R Jones,

2013 WL 822372, at *6.

II.

A.

Plaintiffs claim that the district court erred in holding

that the wardens were entitled to qualified immunity. Under the

doctrine of qualified immunity, a government official is not

personally liable for damages resulting from his actions if his

"conduct

does not violate

clearly 8

established
•

statutory or

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consti tutional rights of which a reasonable person would have

known." Harlow v. Fitzgerald,

457 u.s. 800, 818 (1982) .

Determining whether qualified immunity applies involves a two-

prong inquiry: "whether the facts

make out ~ violation of

a constitutional

right" and "whether the right at issue was

'clearly

established'

at the

misconduct." Pearson v. Callahan,

time of defendant's

alleged

555 u.s. 223, 232 (2009).

The law is clearly established if "'the contours of a right

are sufficiently

clear' that every 'reasonable

official

would

have understood that what he is doing violates that right.'"

Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011) (quoting

Anderson v. Creighton, 483 U.S. 635, 640 (1987)) (alterations

omitted). "[E] xisting precedent must have placed the statutory

or constitutional

question beyond debate." AI-Kidd, 131 S. Ct.

at 2083. The universe of existing precedent is not unlimited.

Courts "'ordinarily

need not look beyond the decisions of the

Supreme Court, this court of appeals, and the highest court of

the state in which the case arose.'" Lefemine v. Wideman, 672

F.3d 292, 298 (4th Cir. 2012 ) (quoting Edwards v. City of

Goldsboro, 178 F.3d 231, 251 (1999)), vacated on other grounds,

133 S. Ct. 9 (2012).

Qualified immunity takes cognizance of human imperfections.

"Implicit

in

the

idea

that

officials

have

some

immunity.

. for their acts, is a recognition

that they may

9

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err" and "that it is better to risk some error and possible

injury from such error than not to decide or act at all."

Scheuer v. Rhodes, 416 u.S. 232, 242 (1974), abrogated by

Harlow, 457 u.S. 800. Qualified immunity thus "shield[s]

officials from harassment, distraction, and liability when they

perform their duties reasonably." Pearson, 555 u.S. at 231.

"[I]nsubstantial lawsuits" create "social costs," among them the

unwarranted inhibition of basic public functions. Harlow, 457

u.S. at 814.

Such suits also discourage "capable citizens

[from] join [ing] the ranks of public servants" and threaten to

undermine

"officers'

discretion

and expertise."

Braun v.

Maynard, 652 F.3d 557, 560 (4th Cir. 2011). Courts thus do not

penalize officials for "'bad guesses in gr~y areas.'" Id.

(quoting Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir.

1992) ) .

We review the grant of summary judgment de novo, S.

Appalachian Mountain Stewards v. A & G Coal Corp., 758 F.3d 560,

562 (4th Cir. 2014), "tak[ing] care not to define a case's

'context' in a manner that imports genuinely disputed factual

propositions," Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014). We

may address either prong of the qualified immunity analysis

first. Pearson, 555 u. S. at 236. Here the availability of the

qualified immunity defense makes it unnecessary to take up the

merits of plaintiffs' constitutional challenge.

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B.

Defendants contend, and the district

court held, Jones v.

Murphy, 2013 WL 822372, at *6 (D. Md.. Mar. 5, 2013), that

Florence v. Board of Chosen Freeholders of County of Burlington,

132 s. Ct. 1510 (2012), demonstrates that the law was not

clearly established even though that decision came several years

after the close of the class period.

The relevant question, however, is whether the law was

clearly established

as of the time of the search. Reichle v.

Howards, 132 s. Ct. 2088, 2093 (2012) (examining the state of

the law "at the time of [the] arrest");

al-Kidd, 131 s. Ct. at

2083 (determining whether the law was clearly established

"at

the time of the challenged conduct"); Wilson v. Layne, 526 u.s.

603, 614 (1999) (" [W]e now must decide whether this right was

clearly established at the time of the search. "); Anderson, 483

u.s. at 640 ("[I]n

the light

of pre-existing

law the

unlawfulness must be apparent.");

Mitchell v. Forsyth, 472 u.s.

511, 535 (1985) ("The decisive fact is

that the question

was open at the time he acted.")

This temporal element inheres in qualified immunity because

the inquiry into "clearly established

law" is tethered to the

need for notice.

Public officials,

no less than private

citizens,

are entitled to know when their actions violate the

law. Notice means prior notice, not notice after the fact.

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Reichle,

132 s. Ct. at 2093 (The clearly

established

law

requirement allows officers to "anticipate

when their conduct

may give rise to liability

for damages." (quoting Anderson, 483

u.s. at 639)); Hope v. Pelzer, 536 u.s. 730, 739 (2002) (The

requirement" 'ensure [s] that before they are subjected to suit,

officers

are on notice their conduct is unlawful.'"

(quoting

Saucier v. Katz, 533 u.s. 194, 206 (2001)); Braun, 652 F.3d at

561 (" Proper notice to public officials

lies at the heart of

qualified immunity.")

Decisions issued

after

the allegedly

unconstitutional

conduct do not affect whether the law was clearly established at

the time of the conduct unless, of course, the later decision

addresses or otherwise illuminates whether the law was clearly

established

at the time of the challenged official

action. In

some instances, the law may change for the apparent benefit of

government officials.

But though such a change in law may

indicate

that there was no constitutional

violation

on the

merits, it does not affect whether the law was clearly

established

because the favorable judicial decision could not

have informed the officials'

understanding

of whether their

actions were unlawful. Of course the need for prior notice is a

two-way street.

It is just as likely that a later-in-time

judicial decision could clearly establish the illegality

of the

conduct in question. But later-in-time

is not at the time, and

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prescience is not to be presumed in granting or withholding the

immunity.

The Supreme Court decided Florence on April 2, 2012. See

132 S. Ct. at 1510. The class period in this case ran from May

12, 2002, until April 30, 2008. Jones, 2013 WL 822372, at *3. As

Florence came down almost four years after the class period

closed, it does not demonstrate that the law on jail strip

searches either was or was not clearly established

at the time

these alleged searches were conducted.

III.

Plaintiffs

rely on Logan v. Shealy, 660 F. 2d 1007 (4th Cir.

1981), and cite Amaechi v. West, 237 F.3d 356 (4th Cir. 2001),

and Abshire v. Walls, 830 F.2d 1277 (4th Cir. 1987), to assert

that during the class period it was clearly established

that

strip searches of the type performed in Central Booking were

unconstitutional.

Logan, Arnaechi, and Abshire, however, do not

clearly

establish

that the wardens'

alleged

conduct was

unlawful.

In Logan, this court utilized the balancing test of Bell v.

Wolfish, 441 U.S. 520(1979),

to find that a jail strip search

was unreasonable and thus a violation of the Fourth Amendment.

660 F. 2d at 1013. Bell instructs

courts to "consider the scope

of the particular

intrusion,

the manner in which it is

conducted, the justification

for initiating

it, and the place in

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which it is conducted." 441 U.S. at 559. Logan had been arrested for driving while intoxicated and brought before a magistrate, who issued an arrest warrant and ordered her released on her own recognizance after a period of four hours (so she could sober up) or as soon as someone could pick her up. 660 F.2d at 100910. A sheriff's deputy, however, refused to let her call a friend until she had been strip-searched. Id. at 1010. That search took place in a holding room with a window with the 'blinds raised, such that her naked body was "exposed to the general view of persons known to be in the vicinity." Id. at
1014. The court held that the search was unconstitutional,
reasoning: On the undisputed and stipulated evidence, Logan's strip search bore no such discernible relationship to security needs at the Detention Center tha~, when balanced against the ultimate invasion of personal rights involved, it could reasonably be thought justified. At no time would Logan or similar detainees be intermingled with the general jail population; her offense, though not a minor traffic offense, was nevertheless one not commonly associated by its very nature with the possession of weapons or contraband; there was no cause in her specific case to believe that she might possess either; and when stripsearched, she had been at the Detention Center for one and one-half hours without even a pat-down search.
Id. at 1013. The court emphasized the lack of privacy in the location where the search was performed. Id. at 1014.
14

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Logan is a far cry from this case. Unlike in Logan, Central

Booking officers conduct the thorough searches in a dedicated

search room, not a holding room with a transparent

window.

Moreover, defendants here have pointed to, and the district

court has recognized, Jones v. Murphy, 2013 WL 822372, at *2 (D.

Md. Mar. 5, 2013), significant

security justifications

for the

searches allegedly conducted. Preventing the smuggling of drugs,

weapons, and other contraband into a detention facility

is a

legitimate justification,

especially where arrestees such as the

plaintiffs

mingle with dozens of other arrestees

for up to 24

hours. There was no comparable security justification

-- indeed

no credible justification

at all

advanced in Logan's case.

She was set to leave the j ail shortly, and presumably without

interacting

with other arrestees.

In analyzing

qualified

immunity we are required to define the right in question "at a

high level. of particularity,"

Edwards v. City of Goldsboro, 178

F.3d 231, 251 (1999), and be mindful of the "specific context of

the case," Saucier v. Katz, 533 U.S. 194, 201 (2001). In the

context of Central Booking, it was not "sufficiently

clear that

every reasonable official would have understood that what he is

doing" failed the Bell test and contravened Logan. Ashcroft v.

al-kidd,

131 S. Ct. 2074, 2083 (2011) (citation,

quotation

marks, and alterations

omitted).

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For similar reasons, neither Amaechi nor Abshire clearly

established

that

the

Central

Booking

searches

were

unconsti tutional. In Amaechi, police officers arrested a woman

for a noise violation that occurred two days prior. 237 F.3d at

359. She was wearing only a light dress that was missing buttons

so it could not close below the chest unless she held it shut.

Id. at 359 n.7. The police refused to let her change; when they

handcuffed her, she was left essentially naked. Id. at 359. An

officer then proceeded to physically search her in front of her

home; he "squeezed her hips, and inside her opened dress,

'swiped' one ungloved hand, palm up, across her bare vagina, at

which time the tip of his finger slightly penetrated Amaechi's

genitals,H and then "knead[ed]H her buttocks with his hand. Id.

There is no comparison between Central Booking and the

physically and sexually abusive search of Amaechi, which "took

place directly in front of the Amaechis' townhouse, where the

other police officers, Amaechi's husband, her five children, and

all of her neighbors had the opportunity to observe. H Id. at

360.

In Abshire, the strip search of the male arrestee was

performed in a utility room with the door open so that more than

a half dozen police officers, including one woman, viewed it.

830 F.2d at 1279-80. The officers had not even done a pat-down

of Abshire; the strip search appeared to have been conducted in

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retaliation

for Abshire's repeated request to make a phone call.

Id. The weak justifications

for the search did not outweigh the

manner in which the officers conducted the search. Id. at 1280.

And the contact with large numbers of variously

charged

arrestees that is present in this case was nowhere mentioned in

Abshire.

We do not require that a prior case be identical

to the

case at bar for fair notice to be provided. See Hope v. Pelzer,

536 U.S. 730, 741 (2002). But" 'in the light of pre-existing

law

the unlawfulness must be apparent.'"

Id. (quoting Anderson v.

Creighton, 483 U.S. 635, 640 (1987)). Under the Bell balancing

test,

the searches

in Logan, Amaechi, and Abshire were

unconstitutional

because there were no security reasons strong

enough to justify

the intrusive

and public nature of the

searches. The searches allegedly performed at Central Booking,

however, were conducted in a different

and less public setting

than those described

by our precedents,

and the security

justifications

for the Central Booking searches were more

compelling. We do not address the constitutional

merits of these

searches. But "[g] iven such an undeveloped state of the law,"

the immunity defense does not permit us to tax correctional

officers with clairvoyance.

Wilson v. Layne, 526 U.S. 603, 617

(1999) .

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IV.

The district

court ultimately

was correct

that the

defendants are entitled to qualified immunity because the law

did not clearly establish at the time that the searches were

conducted that they were unlawful.

AFFIRMED

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WYNN,Circuit Judge, concurring:

I concur in the well-reasoned maj ori ty opinion.

I write

separately

to underscore

the importance of addressing

the

legali ty of strip searching detainees held outside the general

population in the appropriate case.

In Florence v. Board of Chosen Freeholders of County of

Burlington, the Supreme Court left open the question of whether

strip searching detainees held outside the general population

would be constitutional.

132 S. Ct. 1510, 1511 (2012) ("[T]he

controversy concerns whether every detainee who will be admitted

to the general population may be required to undergo a close

visual inspection

while undressed.")

(emphasis added).

The

splintered

Florence decision included two concurrences and a

strongly worded dissent, each of which expressed unease with the

indiscriminate

strip searching of detainees held outside of the

general population.

See id., 132 S.Ct. at 1523 (Roberts, C.J.,

concurring);

id. at 1524 (Alito, J., concurring);

id. at 1525

(Breyer, J., joined by Ginsburg, Sotomayor, and Kagan, JJ.,

dissenting)

Thus, in Florence,

the Supreme Court staked out an

important limitation to its holding.

Florence does not apply to

strip

searches

of detainees

held outside of the general

population.

It now falls to us to apply the Constitution

and

relevant

precedent

to those cases that Florence does not

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control.

Clearly, as this Court holds today, our ruling in

Logan v. Shealy does not put officers on reasonable notice as to

the limits the Constitution places on strip searches under the

circumstances

of this case.

660 F. 2d 1007, 1013 (4th Cir.

1981) .

This Circuit has held that it is appropriate to address the

consti tutional merits in a qualified immunity case where doing

so would "clarify and elaborate upon our prior jurisprudence

in

important and necessary ways." See Doe ex reI. Johnson v. S.

Carolina Dep't of Soc. Servs., 597 F.3d 163, 169 (4th Cir. 2010)

(citing Pearson v. Callahan, 555 U.S. 223, 232 (2009) ) . There

can be no question that our jurisprudence

in this area needs

clarification

and elaboration.

Unfortunately,

by not reaching the constitutional

merits in

this matter, we leave corrections

officers adrift in uncharted

waters. Nonetheless, because the trial court confined itself to

the "clearly

established"

prong of the qualified

immunity

analysis

and did not reach the constitutional

merits,

and

because the parties focused on the "clearly established"

prong

on appeal, I join with the maj ori ty opinion in delaying our

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consideration of this important constitutional issue for another day .
• In fact, pending before this same panel is Cantley v. West Virginia Regional Jail, No. 13~7655, in which the district court held that the strip search of a detainee held outside the general jail population was constitutional.
21

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FILED: November 14,2014
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 13-2014, Dana West v. Susan Murphy I :05-cv-01287-CCB

NOTICE OF JUDGMENT

Judgment was entered on this date in accordance with Fed. R. App. P. 36. Please be advised of the following time periods:

PETITION FOR WRIT OF CERTIORARI: To be timely, a petition for

certiorari must be filed in the United States Supreme Court within 90 days of this

court's entry of judgment. The time does not run from issuance of the mandate. If a

petition for panel or en banc rehearing is timely filed, the time runs from denial of

that petition. Review on writ of certiorari is not a matter of right, but of judicial

discretion, and will be granted only for compelling reasons.

(www.supremecourt.gov)

,

VOUCHERS FOR PAYMENT OF APPOINTED OR ASSIGNED COUNSEL: Vouchers are sent to counsel appointed or assigned by the court in a separate transmission at the time judgment is entered. CJA 30 vouchers are sent to counsel in capital cases. CJA 20 vouchers are sent to counsel in criminal, postjudgment, habeas, and ~ 2255 cases. Assigned counsel vouchers are sent to counsel in civil, civil rights, and agency cases. Vouchers should be completed and returned within 60 days of the later of entry of judgment, denial of a petition for rehearing, or the grant or denial of a petition for writ of certiorari. If counsel appointed or assigned by the court did not receive a voucher, forms and instructions are available from the court's web site, www.ca4.uscourts.gov. or from the clerk's office.

BILL OF COSTS: A party to whom costs are allowable, who desires taxation of costs, shall file a Bill of Costs within 14 calendar days of entry of judgment. (FRAP . 39, Loc. R. 39(b)).

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PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANe: A petition for rehearing must be filed within 14 calendar days after entry of judgment, except that in civil cases in which the United States or its officer or agency is a party, the petition must be filed within 45 days after entry of judgment. A petition for rehearing en banc must be filed within the same time limits and in the same document as the petition for rehearing and must be clearly identified in the title. The only grounds for an extension of time to file a petition for rehearing are the death or serious illness of counselor a family member (or of a party or family member in pro se cases) or an extraordinary circumstance wholly beyond the control of counselor a party proceeding without counsel.
Each case number to which the petition applies must be listed on the petition to identifY the cases to which the petition applies and to avoid companion cases proceeding to mandate during the pendency of a petition for rehearing in the lead case. A timely filed petition for rehearing or petition for rehearing en banc stays the mandate and tolls the running of time for filing a petition for writ of certiorari.
A petition for rehearing must contain an introduction stating that, in counsel's judgment, one or more ofthe following situations exist: (1) a material factual or legal matter was overlooked; (2) a change in the law occurred after submission of the case and was overlooked; (3) the opinion conflicts with a decision of the U.S. Supreme Court, this court, or another court of appeals, and the conflict was not addressed; or (4) the case involves one or more questions of exceptional importance. A petition for rehearing, with or without a petition for rehearing en banc, may not exceed 15 pages. Copies are not required unless requested by the court. (FRAP 35 & 40, Loc. R. 40(c)).
MANDATE: In original proceedings before this court, there is no mandate. Unless the court shortens or extends the time, in all other cases, the mandate issues 7 days after the expiration of the time for filing a petition for rehearing. A timely petition for rehearing, petition for rehearing en banc, or motion to stay the mandate will stay issuance of the mandate. If the petition or motion is denied, the mandate will issue 7 days later. A motion to stay the mandate will ordinarily be denied, unless the motion presents a substantial question or otherwise sets forth good or probable cause for a stay. (FRAP 41, Loc. R. 41).

 </s> IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

DANA T. WEST, et al.1 v.
SUSAN MURPHY, et al.

:

:

:

:

Civil No. CCB-05-1287

:

:

:

:

MEMORANDUM

In 2005, the plaintiffs in this case filed suit asserting constitutional challenges to strip-

search policies at the Baltimore Central Booking and Intake Facility (“Central Booking”), and to

the alleged practice there of detaining individuals arrested without a warrant for more than 48

hours without presenting them to a judicial officer (a practice they call “overdetention”). The

court certified a class of overdetained plaintiffs, and the defendants later moved to alter the class

period so it corresponds only to the defendant Susan Murphy’s tenure as Central Booking’s

warden from March 9, 2004, through June 22, 2005. The plaintiffs did not oppose that portion of

the defendants’ motion, and that portion of the motion will be granted.

Though several other motions are also before the court, the primary issue presented for

resolution is Ms. Murphy’s motion for summary judgment on the plaintiffs’ overdetention claim.

Among other things, Ms. Murphy argues that a reasonable jury could not find that she was

deliberately indifferent to delays in detainees’ presentment or release. The plaintiffs opposed the

motion, and a motions hearing was held on July 27, 2012. For the reasons that follow, Ms.

Murphy’s motion for summary judgment will be granted. The remaining pending motions will

1 On May 23, 2013, Eric Jones’s claims were dismissed for his failure to participate in discovery or otherwise pursue those claims.
1

be denied as moot. BACKGROUND
Maryland’s Department of Public Safety and Correctional Services (“DPSCS”), one of the “principal departments of the Executive Branch of the State government,” Md. Code, State Gov’t § 8-201, “is charged with overseeing the Maryland correctional system,” Glover v. State, 794 A.2d 735, 740 (Md. Ct. Spec. App. 2002). One of the units within DPSCS is the Division of Pretrial Detention and Services (“DPDS”). Md. Code, Corr. Servs. § 2-201(3). The State of Maryland created DPDS because, among other things, “[t]here [was] an important public need to centralize and coordinate the provision of services to individuals on a pretrial status in Baltimore City,” and the city “d[id] not have the financial resources to fund a local correctional facility at a level sufficient to meet the needs of those incarcerated.” Id. § 5-102(c)-(d). Consistent with the reasons for its founding, DPDS is required by statute to operate a “centralized booking facility” containing “pretrial release services,” “District Court Commissioners,” an “Office of the State’s Attorney for Baltimore City,” and “Baltimore City Police Services.” Id. § 5-404(b)(1)-(4). That facility is Central Booking.2
Before Central Booking opened in 1995, Baltimore Police Department (“BPD”) “officers took arrestees directly to their districts for booking and processing.” (DPDS Plan for Efficient and Timely Processing on the Booking Floor (“2005 DPDS Plan”), August 2005, Mot. Partial Summ. J. by William Jednorski Ex. 9, ECF No. 378-9, at 1.) Presentment of arrestees to court commissioners who “reviewed charges and determined bail or released the arrestee on personal
2 To clarify, Central Booking “is run by the State, while the City controls the day-to-day management of the police. . . . Thus, the City Police deliver the accused to a state run facility.” (Baltimore City Circuit Court Op. on Mot. Intervene, Rodney v. Murphy, Case No. 24-C-05-004405, Sept. 29, 2005, Mot. Summ. J. Ex. 87, ECF No. 392-19, at 4.)
2

recognizance” also occurred in the BPD’s district offices. (Id.) Once Central Booking opened, however, it provided the location for “booking and processing all arrestees in Baltimore City.” (Baltimore City Criminal Justice Coordinating Council, Booking Process Presentation (“Booking Process Presentation”),3 Mot. Summ. J. Ex. 71, ECF No. 392-3, at 2.) One reason for locating Central Booking’s various services in one place was to help ensure that, in accordance with state law, individuals arrested in Baltimore without a warrant “be taken before a judicial officer . . . without unnecessary delay and in no event later than 24 hours after arrest.” Md. Rule 4212(f)(1). (See also Dep. of Lamont Flanagan, Mot. Summ. J. Ex. 70, ECF No. 392-2, at 46 (describing the reasons for Central Booking’s establishment); Dep. of Susan Murphy, Mot. Partial Summ. J. by William Jednorski Ex. 12, ECF No. 378-12, at 47 (stating that court commissioners were placed at Central Booking “to expedite the already-overwrought criminal justice system in Baltimore City”).)
Central Booking is comprised of six floors, (Dep. of Mitchell Franks, Mot. Summ. J. Ex. 72, ECF No. 392-4, at 85), extends for two city blocks, (Murphy Dep. at 36), and was designed to house between 800 and 900 detainees, (David M. Parrish, Analysis of Baltimore Central Booking and Intake Center (“Parrish Analysis”), October 21, 2005, Mot. Summ. J. Ex. 73, ECF No. 392-5, at 3; Booking Process Presentation at 3).4 It is divided into two sections: the booking area and the housing area. (Franks Dep. at 85.) The booking area is located on the second floor. (Murphy Dep. at 29.) It consists of a booking unit, a medical unit, a classification unit, a records unit, court commissioners’ offices, and video bail facilities. (Booking Process Presentation at 3,
3 Ms. Murphy represents, and the plaintiffs do not dispute, that the Booking Process Presentation was prepared in June 2005. (Mot. Summ. J. at 7.)
4 The number of detainees at Central Booking regularly exceeded its capacity during Ms. Murphy’s tenure as warden. (See Booking Process Presentation at 3 (“From June 2004 – May 2005 the average end of the month population was 1,183 (32% over capacity)”).)
3

9; Franks Dep. at 99-102; Murphy Dep. at 48-50.) Booking processes are linked through the computerized Arrest Booking System (“ABS”). (See, e.g., Franks Dep. at 101-02.) The housing area makes up the third, fourth, and fifth floors and houses male pretrial detainees who have been committed by a court commissioner. (Murphy Dep. at 29.) Only the booking area is at issue here.
During the relevant time period,5 processing of each warrantless arrestee6 at Central Booking involved both (1) processing of paperwork concerning the arrestee, and (2) the physical movement of the arrestee through different locations within Central Booking. (Franks Dep. at 103.) Processing of paperwork proceeded as follows. Following a warrantless arrest, the arresting officer drafted a statement of probable cause. (Booking Process Presentation at 7.) This could be done either remotely (through computers in the officer’s district office) or at Central Booking. (Id.) If done remotely, the officer would complete the statement, sign a “signature pad,” “lock[ ] the statement,” and “hit[ ] the send button.” (Id.) This made the statement available to a police liaison at Central Booking. (Id.) The police liaisons, themselves BPD officers, then printed the statement and gave it to a state’s attorney. (Murphy Dep. at 288.) Police liaisons were also responsible for “contacting the arresting officers if . . . any required documents [were] missing . . . .” (2005 DPDS Plan at 3-4.) If the arresting officer drafted the probable cause statement at Central Booking, the officer printed and handed it to a state’s attorney, who reviewed it while the officer was present. (Booking Process Presentation at 7.)
If the state’s attorney decided not to charge the arrestee, that arrestee would be released
5 Ms. Murphy was Central Booking’s warden from March 9, 2004, until June 22, 2005. Because practices there may have changed over the last ten years, the court will use the past tense when referring to them.
6 Warrantless arrests are also referred to as “on-view arrests” at various places throughout the record. (See, e.g., Murphy Dep. at 53.)
4

without charge, a result referred to throughout the record by its acronym, “RWOC.” (See, e.g., Booking Process Presentation at 6.) If the state’s attorney did decide to charge the arrestee, the charges were entered into the ABS. (Id.) The paperwork indicating the charge then made its way to a police liaison, who acknowledged receipt of the paperwork through the ABS. (Id. at 12.) A police liaison then delivered that paperwork to a “public safety officer,” who entered into the ABS that the paperwork was received and delivered it to Pretrial Services. (Id.) Pretrial Services conducted a check of the arrestee’s criminal record, and entered into the ABS that the check was completed. (Id.)
If Pretrial Services identified the arrestee as a “war room offender,” i.e., a violent, repeat offender, the paperwork was sent to the “war room.” (Id.; 2005 DPDS Plan at ii.) The war room, created in 2003, was a location at Central Booking staffed by the State’s Attorney’s office, the State Division of Parole and Probation, DPDS, and the BPD. (2005 DPDS Plan at ii.) Representatives of these agencies collaborated to identify individuals they deemed particularly dangerous, and subject them to “a more rigorous evaluation of court and supervision records” before clearing the arrestee to see a court commissioner. (Id.) If the arrestee was not identified as a war room offender, the paperwork returned to a public safety officer and then went to a court commissioner. (Booking Process Presentation at 12.)
The physical processing of warrantless arrestees at Central Booking proceeded as follows. The arresting officer affixed an identification wristband, which contained a barcode, onto the arrestee. (Dep. of William Smith, Mot. Summ. J. Ex. 76, ECF No. 392-8, at 145; Murphy Dep. at 269.) The officer put certain information into the barcode, including the time of arrest. (Smith Dep. at 145-47; Murphy Dep. at 269-272.) Officers then took the arrestee to
5

Central Booking. Booking officers took the arrestee into the facility through its sally port.7 (Franks Dep. at 97). Public safety officers took the arrestee to a search room where they searched the arrestee. (Booking Process Presentation at 9.) After the search, public safety officers took the arrestee to the booking window, (id.), where the arrestee provided identifying personal information (name, address, etc.), and the wristband was scanned for information concerning the arrest, including the time it occurred, (Franks Dep. at 105-07).8 The arrestee was assigned “a unique identifying number” that was logged into the ABS to track the arrestee within Central Booking. (Murphy Dep. at 269.) The arrestee was then taken to the “identification room,” where the arrestee’s photographs and fingerprints were taken. (Franks Dep. at 105.) The arrestee was then given an opportunity for one free phone call. (Id.) After a medical screening, the arrestee was placed in a cell to await presentment before a court commissioner. (Id.) To facilitate the tracking of arrestees, the arrestee’s wristband was scanned at each location throughout the process, and the location information was entered into the ABS. (Smith Dep. at 145-47; Murphy Dep. at 276.)
Ms. Murphy began working at Central Booking as an assistant warden for security in 2001. (Murphy Dep. at 28.) At some point she transitioned into an assistant warden for booking, a position in which she served until she became acting warden on March 9, 2004. (Id. at 64; Decl. of Susan Murphy ¶ 1, Mot. Partial Summ. J. by William Jednorski Ex. 3, ECF No. 378-3.) She transitioned from acting warden to warden on June 23, 2004, and served in that
7 In this context, a sally port is “a secure entryway (as at a prison) that consists of a series of doors or gates.” Sally port Definition, Merriam-Webster.com, http://www.merriam-webster.com/dictionary/sally%20port (last visited Feb. 23, 2015).
8 There is also evidence in the record concerning “toe tags.” (See, e.g., Booking Process Presentation at 5.) “A toe tag is a piece of paper that the arrestees would bring with them to Central Booking that had been filled out by the arresting police officer.” (Murphy Dep. at 220.) It is unclear if toe tags and identification wristbands were both used, toe tags were used when wristbands were unavailable, or both performed the same function.
6

capacity until June 22, 2005. (Id.; Mot. Summ. J. at 1.) From March 9, 2004, to June 22, 2005, 111,749 individuals were booked at Central Booking, an average of 238 per day. (Decl. of Kevin Nichols, Pls.’ Resp. Mot. Summ. J. Ex. 252, at 2.)
Timely presentment of warrantless arrestees became an issue during Ms. Murphy’s tenure as warden. Though officials were primarily concerned with Maryland’s 24-hour limit, between one and two percent of individuals booked at Central Booking during that time were warrantless arrestees detained beyond the constitutional limit of 48 hours without presentment.9 The sources of delays included: (1) the time it took for BDP officers to bring arrestees to Central Booking following their arrest, (Murphy Dep. at 273; Franks Dep. at 238; Smith Dep. at 150-51); (2) the failure of BPD officers to timely and properly complete the statements of probable cause to make them accessible at Central Booking, (Murphy Dep. at 286-87; Dep. of Corey Moss, Mot. Summ. J. Ex. 77, ECF No. 392-9, at 29; Smith Dep. at 150-51; Booking Process Presentation at 15); (3) the failure of police liaisons to print the statements and/or give them to state’s attorneys, (Franks Dep. at 239; Murphy Dep. at 290, 305; Moss Dep. at 30-31); (4) delayed action by state’s attorneys once they received the statements, (Franks Dep. at 238-39; Flanagan Dep. at 52; Dep. of David Becketts, Mot. Summ. J. Ex. 75, ECF No. 392-8, at 96-97); (5) war room delays, (Becketts Dep. at 85; Murphy Dep. at 308-09); and (6) understaffing of court commissioners, (Franks Dep. at 88-89, 238; Smith Dep. at 153; Booking Process Presentation at 19).
In light of these delays, Maryland’s Office of the Public Defender (“OPD”) began filing petitions for habeas corpus on behalf of individuals detained at Central Booking who were not presented to a court commissioner within 24 hours of their warrantless arrest, as required by Maryland law. (See Baltimore City Circuit Court Op. on Mot. Intervene, Rodney v. Murphy,
9 The plaintiffs say 2,212 such overdetentions occurred, while Ms. Murphy says 1,014 (and perhaps fewer) occurred. The court need not, and does not, resolve that dispute here.
7

Case No. 24-C-05-004405, Sept. 29, 2005, Mot. Summ. J. Ex. 87, ECF No. 392-19, at 1 (recounting case history).) That led to the filing of a class action suit against Ms. Murphy in the Circuit Court for Baltimore City.10 (Id.) On April 25, 2005, that court issued a temporary restraining order (“TRO”) ordering that “any individual held longer than 24 hours without being taken before a judicial officer of the District Court as required by Rule 4-212 shall be immediately released from [Central Booking] on any charges for which the individual was denied prompt presentment, unless [Ms. Murphy] files a motion demonstrating good cause for noncompliance . . . .” (TRO, Rodney v. Murphy, April. 25, 2005, Mot. Summ. J. Ex. 86, ECF No. 392-18.) On May 9, 2005, the court extended the TRO until November 9, 2005. (See Second Am. Compl. ¶ 4, Rodney v. Murphy, Mot. Summ. J. Ex. 93, ECF No. 392-25.) According to a news report, by May 10, 2005, the TRO had led to the release of 27 arrestees. (Ryan Davis, “Deal extends city jail order,” Baltimore Sun, May 10, 2005, Mot. Summ. J. Ex. 88, ECF No. 392-20.) The City of Baltimore then moved to intervene, citing “the urgent health and safety risks posed by the release of dangerous individuals into the community . . . .” (See Mot. Shorten Time for Response in Mot. Intervene, Rodney v. Murphy, June 29, 2005, Mot. Summ. J. Ex. 89, ECF No. 392-21.) The court denied the City’s motion on September 29, 2005, but allowed the City to participate as an amicus. (Mot. Summ. J. Ex. 87.) At the court’s direction, DPDS produced and submitted the 2005 DPDS Plan, which called for a number of systemic changes. (Id. at 4; 2005 DPDS Plan.) The court dissolved the injunction and dismissed the case on September 15, 2006. (Mot. Summ. J. at 23; Pls.’ Proposed Class Definitions, ECF No. 268, at 1 n.1). The Rodney court’s involvement spurred the affected agencies to display an “unprecedented” level of cooperation and work together to solve the problems delaying
10 The exact date the suit was filed is unclear from the record.
8

presentment. (Parrish Analysis at 4.)
Meanwhile, on May 12, 2005, former detainees at Central Booking filed a complaint in
this court asserting claims of overdetention and unconstitutional strip searches. Count Four of
the Fourth Amended Complaint asserts a claim of supervisory liability against Ms. Murphy in her individual capacity for overdetentions at Central Booking during her time as warden.11
(Fourth Am. Compl. ¶ 294, ECF No. 146.) Years of litigation followed. On March 19, 2009, the
court certified a class of overdetained individuals. On January 31, 2011, Ms. Murphy moved for
summary judgment as to the overdetention claim against her. The plaintiffs responded. A motions hearing was held on July 27, 2012.12
ANALYSIS
Summary Judgment Standard
Federal Rule of Civil Procedure 56(a) provides that summary judgment should be granted
“if the movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a) (emphasis added). Whether a fact
is material depends upon the substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). Accordingly, “the mere existence of some alleged factual dispute between the
parties will not defeat an otherwise properly supported motion for summary judgment.” Id. at
247-48. “A party opposing a properly supported motion for summary judgment ‘may not rest
11 The count also asserts a claim against William Jednorski in his individual capacity, and Mitchell Franks in his official capacity. Mr. Jednorski preceded Ms. Murphy as warden at Central Booking, and Mr. Franks succeeded her. On December 6, 2010, the three defendant wardens moved to alter the class periods, including by limiting the overdetention class period to Ms. Murphy’s tenure as warden. The plaintiffs did not oppose the motion to the extent it sought to limit the overdetention class period. Accordingly, the court will grant that motion to the extent it seeks to limit the overdetention class period, and will deny it as moot to the extent it seeks to limit the strip search class period.
12 On March 5, 2013, the court granted summary judgment to Ms. Murphy and Mr. Jednorski on the plaintiffs’ strip search claims, on the grounds of qualified immunity. The remainder of the case was stayed pending the Fourth Circuit’s review of that decision. The Fourth Circuit affirmed on November 14, 2014. West v. Murphy, 771 F.3d 209 (4th Cir. 2014).
9

upon the mere allegations or denials of [his] pleadings,’ but rather must ‘set forth specific facts showing that there is a genuine issue for trial.’” Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir. 2003) (alteration in original) (quoting Fed. R. Civ. P. 56(e)). The court must view the evidence in the light most favorable to the nonmovant and draw all justifiable inferences in his favor. Greater Baltimore Ctr. for Pregnancy Concerns, Inc. v. Mayor and City Council of Baltimore, 721 F.3d 264, 283 (4th Cir. 2013) (en banc). At the same time, the court must not yield its obligation “to prevent factually unsupported claims and defenses from proceeding to trial.” Bouchat, 346 F.3d at 526 (citation and internal quotation marks omitted). Supervisory Liability
The plaintiffs raise a constitutional claim against Ms. Murphy, and seek to hold her liable for their overdetentions under a theory of supervisory liability. Supervisory liability under 42 U.S.C. § 1983 “is not premised upon respondeat superior . . . .” Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994). Rather, to succeed on a § 1983 claim based on supervisory liability, a plaintiff must show:
(1) that the supervisor had actual or constructive knowledge that h[er] subordinate was engaged in conduct that posed “a pervasive and unreasonable risk” of constitutional injury to citizens like the plaintiff; (2) that the supervisor’s response to that knowledge was so inadequate as to show “deliberate indifference to or tacit authorization of the alleged offensive practices,”; and (3) that there was an “affirmative causal link” between the supervisor’s inaction and the particular constitutional injury suffered by the plaintiff. Id. at 799 (citations omitted). “As to the second element, a plaintiff ‘may establish deliberate indifference by demonstrating a supervisor’s continued inaction in the face of documented widespread abuses.’” Wilkins v. Montgomery, 751 F.3d 214, 226-27 (4th Cir. 2014) (quoting
10

Shaw, 13 F.3d at 799). Arrests must be supported by probable cause to believe that the arrestee committed (or
was committing) an offense. See, e.g., Gerstein v. Pugh, 420 U.S. 103, 111 (1975). “To implement the Fourth Amendment’s protection against unfounded invasions of liberty and privacy, the [Supreme] Court has required that the existence of probable cause be decided by a neutral and detached magistrate whenever possible.” Id. at 112. When a police officer arrests someone without a warrant, however, only the officer has determined that probable cause exists. Therefore, the government must “promptly” arrange for the arrestee’s presentment before a judicial officer for a probable cause assessment. Id. at 125. Presentment within 48 hours is presumptively constitutional, and an arrested individual presented to a judicial officer within that time bears the burden of showing “that his or her probable cause determination was delayed unreasonably.” Cnty. of Riverside v. McLaughlin, 500 U.S. 44, 56 (1991). “Where an arrested individual does not receive a probable cause determination within 48 hours, . . . the burden shifts to the government to demonstrate the existence of a bona fide emergency or other extraordinary circumstance.” Id. at 57.
Ms. Murphy concedes that the plaintiffs have put forth evidence sufficient to establish the first element of pervasive and unreasonable risk of constitutional injury. She argues, however, that a reasonable jury could not find that she was deliberately indifferent to delays in presentment, or that there was an affirmative causal link between her alleged inaction and the delays. The court agrees that no genuine dispute of material fact exists to support the element of deliberate indifference, and therefore will not reach the question of causation.
The foundation of Ms. Murphy’s argument is that the undisputed evidence demonstrates
11

that delays in presentment of warrantless arrestees were due to problems largely out of her control, and that is why overdetentions persisted despite her efforts to prevent them. As Central Booking’s warden, Ms. Murphy was an employee of DPDS, a state agency, see Md. Code, Corr. Servs. § 5-404, and her immediate supervisor was DPDS’s Deputy Commissioner (though DPSCS’s Commissioner “signed off” on Central Booking’s policies). (Murphy Dep. at 256; Flanagan Dep. at 34). Within Central Booking, she supervised other DPDS employees, including a chief of security, assistant wardens, majors, captains, sergeants, and correctional officers. (Flanagan Dep. at 40-41.) But Ms. Murphy is correct that the timely presentment of warrantless arrestees also involved many outside her supervision, including BPD officers, state’s attorneys, and court commissioners, each of whom could be (and were) responsible for delays.
BPD officers caused delays in several ways. Hours often passed between when a BPD officer arrested someone and when the arrestee was brought to Central Booking. (Murphy Dep. at 273; Franks Dep. at 238; Smith Dep. at 150-51.) BPD officers often were slow to complete a statement of probable cause, (Murphy Dep. at 286-87; Moss Dep. at 29; Booking Process Presentation at 15), failed to “lock” the statement or hit “send” so it could enter the computer system, (Smith Dep. at 150-51; Booking Process Presentation at 15), or were unable to complete the statement process because of broken “signature pads,” (Booking Process Presentation at 15). Though it was the responsibility of the police liaisons to contact the arresting officers for missing documents, (2005 DPDS Plan at 3-4), “the police liaisons initially did not feel that it was their responsibility to move quickly,” (Franks Dep. at 239). When statements of probable cause arrived at Central Booking, the police liaisons, whose responsibilities also included printing the statements and giving them to a state’s attorney, sometimes refused to do so. (Murphy Dep. at
12

290, 305.)13 State’s attorneys were also frequently responsible for delays once they received the
arresting officer’s statement. (Franks Dep. at 238-39; Flanagan Dep. at 52; Becketts Dep. at 9697; see also OPD letter to Judge Glynn dated Oct. 31, 2005, Mot. Summ. J. Ex. 78, ECF No. 392-10, at 1 (“Our office, in reviewing those circumstances where an individual is close to or past the 24th hour mark, has observed that the majority of these cases involve a delay in the completion of the paperwork by either the Police Department and/or the State’s Attorney’s Office.”).) These delays were sometimes linked to the state’s attorneys’ activities in the war room. (Becketts Dep. at 85; Murphy Dep. at 308-09.)
Even when an arrestee (and his paperwork) had been fully and timely processed, presentment was further delayed when the number of available court commissioners was insufficient, (Franks Dep. at 238; Smith Dep. at 153; Booking Process Presentation at 19), causing the available commissioners to be overwhelmed by the volume of arrestees, (Flanagan Dep. at 48; Smith Dep. at 153).
The undisputed evidence also makes clear that Ms. Murphy took various actions to prevent and reduce overdetentions. First, she personally monitored the issue and sought to remedy potential delays as they arose: she used the ABS to monitor the lengths of arrestees’ detentions in real time, (Murphy Dep. at 84), printed reports highlighting warrantless arrestees who had been detained for the longest periods of time to prioritize those individuals, (id. at 229), and when arrestees had been detained without presentment for more than 24 hours she went to
13 Ms. Murphy’s uncontradicted testimony indicated that police liaisons sometimes refused to refill the paper in their own printers, preventing the statements of probable cause from printing. (Murphy Dep. at 290, 305.) If a member of Central Booking’s staff “print[ed] it out for the police liaisons and t[ook] it to them so that they could give it to the State’s attorney,” some police liaisons “would just take what [the] lieutenants would bring to them and throw [it] in the trash.” (Id. at 305.)
13

the booking floor to “look[ ] for answers,” (id. at 229-30; Dep. of James Shields, Mot. Summ. J. Ex. 85, ECF No. 392-17, at 66). Second, she focused her staff on the problem by issuing “post orders” – documents describing the duties of a particular position, (Murphy Dep. at 125-26), – for the booking lieutenant, (Mot. Summ. J. Ex. 82, ECF No. 392-14), the booking shift commander, (Mot. Summ. J. Ex. 83, ECF No. 392-15), and the sergeant assigned to the position of “arrest booking lead,” (Mot. Summ. J. Ex. 84, ECF No. 392-16), that required these individuals to monitor the booking queue and potential delays. Third, she alerted her superiors to the issue of delays in presentment. She did this by writing a thorough memorandum to Deputy Commissioner Howard Ray, her immediate supervisor, (Murphy Dep. at 255), addressing the problem and its varied causes (Memo, Mot. Summ. J. Ex. 79, ECF No. 392-11), and by raising the issue in Monday morning meetings with DPDS Commissioner William Smith, (Murphy Dep. at 265-66). Fourth, she worked with representatives of other agencies in Central Booking whose activities were linked to delays: she had meetings with representatives of all the agencies with operations in Central Booking to discuss the problem and work to resolve it, (Shields Dep. at 6466), met and spoke regularly with BPD officers about the issue, (Murphy Dep. at 309-12), and had a long meeting about the issue with the then-commissioner of the BPD, (id. at 314).14
Under these circumstances, where the undisputed evidence establishes both that delays in presentment were largely due to factors beyond Ms. Murphy’s control, and Ms. Murphy took various actions in her attempt to eliminate overdetentions, no reasonable jury could find that she
14 Ms. Murphy attaches what she describes as a sample of booking records with “delay comments,” and argues that it demonstrates both “the systemic problem of delays in the preparation or transmission of charging documents by allied agencies” and “the persistent efforts made by Central Booking officers to address this problem.” (Mot. Summ. J. at 16 (citing Mot. Summ. J. Ex. 81, ECF No. 392-13).) The plaintiffs do not dispute that these booking records show that a high percentage of the delays arose from the unavailability of charging documents (for which BPD officers were responsible), or that Central Booking officers made repeated requests to the police liaisons for these documents.
14

was deliberately indifferent to the problem. See West v. Tillman, 496 F.3d 1321, 1333 (11th Cir. 2007) (rejecting claims of deliberate indifference to overdetention where delays were caused by issues outside the defendants’ control and the defendants “undertook to address” the issues). This case is not one where the supervisor’s response to “documented widespread abuses” was anything approaching “continued inaction.” Wilkins, 751 F.3d at 226 (citation and internal quotation marks omitted).
The plaintiffs’ arguments to the contrary fall into two main categories, the first of which is that Ms. Murphy should have done more to speed the release of warrantless arrestees. Specifically, they say she failed to take “a more pro-active approach,” (Pls.’ Resp. Mot. Summ. J. at 14), “releas[e] minor offenders,” (id. at 15), or seek “court permission to detain warrantless arrestees beyond 48 hours without presentment,” (id. at 20). As to Ms. Murphy’s supposed failure to take a more pro-active approach, “[d]eliberate indifference is a very high standard,” Grayson v. Peed, 195 F.3d 692, 695 (4th Cir. 1999), and “[a] ‘showing of mere negligence’ will not suffice,” Danser v. Stansberry, 772 F.3d 340, 347 (4th Cir. 2014) (citing id.). Even if Ms. Murphy’s actions (or failures to act) could be characterized as negligent, they do not approach deliberate indifference.15 As to the plaintiffs’ suggestion that she should have released “minor” offenders, the plaintiffs fail to explain how Ms. Murphy should have unilaterally determined which individuals were arrested for offenses sufficiently “minor” to justify their release. They also fail to adequately address the fact that DPDS Commissioner William Smith, apparently reversing an earlier policy that allowed releases in exceptional circumstances, specifically
15 The plaintiffs also argue that because Ms. Murphy testified in her deposition that she was unaware of the constitution’s 48-hour limit on detention, (Murphy Dep. at 219), she cannot now argue that she did anything to avoid detentions beyond 48 hours. Not so. Ms. Murphy made clear that, in accordance with Maryland law, she focused on reducing the length of detentions to less than 24 hours. Her knowledge of the less stringent constitutional limit is irrelevant.
15

instructed Ms. Murphy not to release overdetained individuals. (Smith Dep. at 156, 201-02; Murphy Dep. at 58, 216, 233, 256-60.) And as to Ms. Murphy’s failure to seek court permission, the plaintiffs do not explain how Ms. Murphy could have done so before the court in Rodney v. Murphy issued its TRO on April 25, 2005 – just two months before Ms. Murphy’s time as Central Booking’s warden ended. Nor do they explain how Rodney’s case-by-case remedy could have addressed the systemic, inter-agency problems underlying delays. In short, Ms. Murphy cannot be held deliberately indifferent simply because she did not take the remedial actions of the plaintiffs’ choosing.
The plaintiffs’ second argument is that Ms. Murphy is automatically liable for overdetentions that occurred while she was warden, either because she was the arrestees’ “custodian,” (Pls.’ Resp. Mot. Summ. J. at 17-20), or because she was Central Booking’s “final policymaker,” (id. at 21). The “custodian” theory might reasonably be applied where the municipality itself may be fairly characterized as an arrestee’s custodian. See Bernard v. City of Palo Alto, 699 F.2d 1023, 1027 (9th Cir. 1983) (“The County is responsible for operating the jail and has custody over arrestees.”) (emphasis added). The same may be true for a particular agency, such as a police department. See Wayland v. City of Springdale, 933 F.2d 668, 670 (8th Cir. 1991) (where officials were sued in both their official and individual capacities, stating that “the police were under no obligation to continue to hold” an overdetained arrestee) (emphasis added). But it does not make sense to apply that theory where, as here, the plaintiffs seek money damages from a state official, sued in her individual capacity, in a context where processing of warrantless arrestees involved a mix of officials both state (e.g., Central Booking officers) and local (e.g., BPD officers). The plaintiffs’ characterization of Ms. Murphy as Central Booking’s
16

custodian would evade the applicable standard of deliberate indifference. The “final policymaker” theory fails for similar reasons: though it fits within a municipal liability theory, its application here would turn supervisory liability into respondeat superior. And in any event, there is no evidence that a policy adopted by Ms. Murphy was responsible for Central Booking’s overdetention issues. See Powell v. Sheriff, Fulton Cnty. Ga., 511 F. App’x 957, 962-63 (11th Cir. 2013) (holding that the plaintiffs failed to show deliberate indifference to their overdetention because delays arose from “various factors outside [the sheriff’s] control,” not “any custom or policy” the sheriff had adopted),16 cert. denied sub nom. Matkin v. Barett, 134 S. Ct. 513 (2013). Qualified Immunity
In the alternative, Ms. Murphy also argues that she is protected by qualified immunity. At the summary judgment stage, qualified immunity shields federal and state officials from money damages unless a plaintiff offers evidence from which a jury could reasonably conclude “(1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.” Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080 (2011). “A Government official’s conduct violates clearly established law when, at the time of the challenged conduct, ‘[t]he contours of [a] right [are] sufficiently clear’ that every ‘reasonable official would have understood that what he is doing violates that right.’” Id. at 2083 (citation omitted). “In the end, the lodestar for whether a right was clearly established is whether the law ‘gave the officials “fair warning” that their conduct was unconstitutional.’” Iko v. Shreve, 535 F.3d 225, 238 (4th Cir. 2008) (citation omitted).
Ms. Murphy argues that she is entitled to qualified immunity because, among other reasons, a reasonable official in her position would not have believed she was authorized to act
16 Unpublished cases are cited not as precedent but for the soundness of their reasoning.
17

unilaterally to release arrestees who had not been timely presented to a court commissioner. The plaintiffs’ failure to address this argument suggests they have abandoned arguments to the contrary. See Mentch v. E. Sav. Bank, FSB, 949 F. Supp. 1236, 1247 (D. Md. 1997) (holding that failure to address the defendant’s arguments for summary judgment in an opposition brief constituted abandonment of the claim). Regardless, however, Ms. Murphy is correct that she is entitled to qualified immunity. Even assuming that Ms. Murphy’s conduct was unconstitutional, the plaintiffs have cited no authority from the Supreme Court, the Fourth Circuit, or the Court of Appeals of Maryland clearly establishing that a warden in Ms. Murphy’s position would violate an arrestee’s constitutional rights by not taking the remedial actions the plaintiffs suggest could have alleviated Central Booking’s overdetention problem. “Officials are not liable for bad guesses in gray areas; they are liable for transgressing bright lines.” Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir. 1992). The issues facing Central Booking – with its mix of state and local agencies, several of which were responsible for delays in presentment of warrantless arrestees – constituted a gray area, and Ms. Murphy’s failure to unilaterally release overdetained individuals or seek judicial permission to prolong their detention crossed no bright lines. She thus had no “fair warning” that her conduct was unconstitutional, and is entitled to qualified immunity.
Accordingly, the court will grant Ms. Murphy’s motion for summary judgment. CONCLUSION
For the reasons stated above, the defendants’ motion to alter class periods will be granted to the extent it seeks to limit the overdetention class to Ms. Murphy’s tenure as warden, and denied as moot in all other respects. Ms. Murphy’s motion for summary judgment will be
18

granted. The following motions will be denied as moot: the plaintiffs’ motion for relief concerning the court’s April 15, 2010 order, the plaintiffs’ motion to strike a late document, the plaintiffs’ motion to depose Glenn Marrow, and the plaintiffs’ emergency motion to withdraw their combined opposition.
A separate order follows.

February 24, 2015 Date

/S/ Catherine C. Blake United States District Judge

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 </s> Case 1:05-cv-01287-CCB Document 202 Filed 07/11/08 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

ERIC JONES, et al.
v. SUSAN MURPHY, et al.

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Civil No. CCB-05-1287

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:

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MEMORANDUM Currently pending before the court are the parties’ cross-motions for summary judgment on the issue of whether the gender-differentiated search policy at Central Booking violated the Equal Protection Clause. The matter has been fully briefed, and oral argument was held on June 25, 2008. For the reasons articulated below, the plaintiffs’ motion for summary judgment will be granted with respect to the equal protection issue and the defendants’ motion for qualified immunity will be denied without prejudice.

BACKGROUND Soon after arrival at Baltimore City’s Central Booking, male and female arrestees are routed through the sallyport and the search room (referred to, collectively, as “search room”), in which they are searched for contraband, including weapons and drugs. Prior to January 1,

1

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2006,1 Post Orders for on-duty officers in Central Booking’s search rooms contained different instructions for the men’s and women’s search rooms.2 Officers in the female search room
received the following order: “Upon arrival, all offenders will be pat frisk searched,” whereas
officers in the male search room were instructed that “Upon arrival, all offenders will be
searched down to their underwear. If the search room officer suspects contraband is being
concealed beneath the underwear, then a strip search will be conducted.” (Pl’s Mot. Summ. J.
Ex. 102, 103.)
ANALYSIS
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary
judgment
shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
The Supreme Court has clarified that this does not mean that any factual dispute will
defeat the motion:
1The Post Orders currently in effect at Central Booking have male and female arrestees treated the same for search purposes - both men and women are required to “remove all clothing down to [the] undergarments.” (Pl’s Mot. Summ. J. Ex. 106, 107.)
2The parties differ sharply as to whether the Post Orders reflected actual practice at Central Booking. The plaintiffs claim that arrestees were routinely subjected to strip searches down to bare skin, “either by a full-naked search or a search by which pants (or skirts) and underwear were pulled to the knees.” (Pl’s Mot. Summ. J. 1 n.1.) For the purposes of these motions, both parties assume that female arrestees were searched via pat frisk and male arrestees were searched to their “last layer of clothing”; that is, to the underwear. Plaintiffs have reserved for another motion the issue of whether officers at Central Booking were actually following the Post Orders to limit the searches.
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By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, (1986) (emphasis in original).
“A party opposing a properly supported motion for summary judgment ‘may not rest
upon the mere allegations or denials of [his] pleadings,’ but rather must ‘set forth specific facts
showing that there is a genuine issue for trial.” ’ Bouchat v. Baltimore Ravens Football Club,
Inc., 346 F.3d 514, 525 (4th Cir.2003) (alteration in original) (quoting Fed.R.Civ.P. 56(e)). The
court must “view the evidence in the light most favorable to . . . the nonmovant, and draw all
reasonable inferences in her favor without weighing the evidence or assessing the witness'
credibility,” Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 644-45 (4th Cir.2002),
but the court also must abide by the “affirmative obligation of the trial judge to prevent factually
unsupported claims and defenses from proceeding to trial.” Bouchat, 346 F.3d at 526 (internal
quotation marks omitted) (quoting Drewitt v. Pratt, 999 F.2d 774, 778-79 (4th Cir.1993), and
citing Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986)).
The parties differ sharply as to the appropriate level of review to be applied to the search policy.3 The plaintiffs contend that the policy should be examined through a traditional equal
protection lens - that is, the court should apply heightened scrutiny and require an “exceedingly
3The parties also disagree about the effect the plaintiffs’ status as pre-presentment arrestees, and not convicted prisoners, has on the level of review to be applied. The court takes no position on the matter, save to note that it appears the Fourth Circuit generally has applied “the same legal standard for detainees as for convicted inmates with due regard for the particular circumstances of pretrial detainment,” because “the concern for security is the same for pretrial detainees as for convicted inmates.” Hause v. Vaught, 993 F.2d 1079, 1082 (4th Cir. 1993). As discussed above, however, Central Booking’s policy fails under even the most deferential standard.
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persuasive” justification for the gender-differentiated government policy. See United States v. Virginia, 518 U.S. 515, 531 (1996). The defendants counter that it is not heightened scrutiny that applies, but the standard espoused in Turner v. Safley, 482 U.S. 78, 89 (1987), under which the policy must merely be rationally related to a legitimate penological interest. Even under Turner, however, the gender-differentiated search policy in place at Central Booking during the challenged time period does not pass constitutional muster.
Preliminarily, it is obvious that the Division of Pretrial Detention and Services (“the Division”) has a legitimate penological interest in preventing prisoners from bringing weapons into the booking facility. “Prison safety and security are legitimate penological interests that [the court] must consider.” Veney v. Wyche, 293 F.3d 726, 732 (4th Cir. 2002) (citing Washington v. Harper, 494 U.S. 210, 223 (1990)). Given that legitimate interest, the reasonableness inquiry under Turner centers around four factors: (1) whether there is a “valid, rational connection” between the prison regulation and the legitimate government interest put forth to justify it; (2) “whether there are alternative means of exercising the right that remain open to prison inmates”;4 (3) what “impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally”; (4) and the “absence of ready alternatives.” 482 U.S. at 89-90.
Here, it is questionable whether there existed a valid, rational connection between preserving safety and security on the booking floor, and searching males but not females. On this point, the defendants offer only the testimony of Deputy Commissioner Benjamin Brown, who states that “[i]t was the experience of the Division that male arrestees entering BCBIC were
4This factor is not applicable here. 4

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far more likely than female arrestees to have in their possession weapons, such as knives and, on occasion, guns, which, in turn, pose a severe threat to the safety and security of the persons on the booking floor.” (Def’s Mot. Dismiss Ex. 1 at ¶ 5.) Deputy Commissioner Brown also testified that this disparity was the only reason men were searched more thoroughly than women. (Pl’s Mot. Summ. J. Ex. 101 at 274-75.) Brown admitted, however, that reports of this disparity were “anecdotal[],” (id. at 72), because the master records kept of seized contraband did not note whether the contraband was recovered from a male or a female (id. at 110-12). Moreover, when Deputy Commissioner Brown was asked about “items that arrestees commonly have on their possession that can be used as weapons,” such as knitting needles, keys, rings, and belts, he admitted that the disparity evaporated: “[a] lot of these items women might be just as likely as men to have.”5 (Id. at 298-300.)
The defendants’ argument is even more significantly weakened when the third and fourth Turner factors are considered. The Supreme Court noted that “[w]hen accommodation of an asserted right will have a significant ‘ripple effect’ on fellow inmates or on prison staff, courts should be particularly deferential to the informed discretion of corrections officials.” Turner, 482 U.S. at 90. To treat male and female arrestees equally for search purposes, however, Central Booking officials simply needed either to stop searching male arrestees to their underwear, or to start searching all arrestees to their underwear.6 The latter is exactly what the Division
5The Post Orders in effect during the challenged period were revised on August 20, 2004. (See Pl’s Mot. Summ. J. Ex. 102, 103.) Given that no copies of Post Orders prior to that date have been submitted, it is unclear how long the challenged policy was in effect.
6This assumes that Central Booking’s policy of searching to the last layer of clothing suffers from no other constitutional infirmity.
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voluntarily began doing in January of 2006. (See Pl’s Mot. Summ. J. Ex. 106, 107.) At oral argument, the defendants’ counsel did not contend that the additional searches of female arrestees has strained the Division’s resources. The additional staff needed to more thoroughly search female arrestees does not appear to be overly burdensome, as the policy affects only the 20% of arrestees entering Central Booking who are female. A similar line of reasoning applies to the fourth Turner factor, concerning the absence of ready alternatives on the part of the governmental entity. Here, the January 2006 decision to search all arrestees to their last layer of clothing demonstrates just how readily available a constitutional alternative was to the Division. Accordingly, as to the equal protection issue, he plaintiffs’ motion for partial summary judgment will be granted, and the defendants’ cross-motion for partial summary judgment will be denied.
Also pending is the defendants’ motion for qualified immunity. This question must be analyzed “at a high level of particularity.” Amaechi v. West, 237 F.3d 356, 362 (4th Cir. 2001) (citing Edwards v. City of Goldsboro, 178 F.3d 231, 250-51 (4th Cir. 1999)). In the absence of further factual development concerning the adoption and implementation of the policy by the individual defendants, the defendants’ motion for qualified immunity will be denied without prejudice.
A separate Order follows.

July 11, 2008 Date

/s/ Catherine C. Blake United States District Judge

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 </s> Case 1:05-cv-01287-CCB Document 237 Filed 11/26/08 Page 1 of 25

CHAMBERS OF SUSAN K. GAUVEY U.S. MAGISTRATE JUDGE

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
November 26, 2008

101 WEST LOMBARD STREET BALTIMORE, MARYLAND 21201 MDD_skgchambers@mdd.uscourts.gov
(410) 962-4953 (410) 962-2985 - Fax

Beverly F. Hughes, Esq. Assistant Attorney General 6776 Reisterstown Road, Suite 313 Baltimore, MD 21215 Sean R. Day, Esq. 8505 Baltimore Avenue, Suite B College Park, MD 20740
William Claiborne, Esq. 717 D. Street, NW, Suite 210 Washington, DC 20004
Barrett S. Litt, Esq. Litt, Estuar, Harrison, Miller & Kitson, LLP 1055 Wilshire Boulevard, Suite 1880 Los Angeles, CA 90017
Re: Eric Jones, et al. v. Susan Murphy, et al. Civil No. CCB-05-1287
Dear Counsel:
This is a § 1983 civil rights action. Plaintiffs are male
arrestees placed in the Booking Center who complain of
unconstitutional strip searches and unconstitutional detention
for 48 hours or more after arrest before presentment before a
commissioner or other judicial officer. Defendants are the
various wardens of the Booking Center, the Mayor and City Council
and the Baltimore City Police Department.
Before the Court is defendants’ motion for a protective

Case 1:05-cv-01287-CCB Document 237 Filed 11/26/08 Page 2 of 25
order, seeking to prevent the disclosure of written advice prepared by the Office of the Maryland Attorney General (“OAG”) to the Division of Pretrial Detention and Services (“Division”), regarding Baltimore Central Booking and Intake Center’s (“BCBIC”) arrestee search practices. (Paper No. 168.)
Specifically, defendants seek protection for three memoranda, prepared by the OAG for the Division within the past decade. (Paper No. 168-2, 2.) These memoranda consist of:
(i) a July 27, 2000 memorandum by Assistant Attorney General (“AAG”) Glenn T. Marrow to then-Division Commissioner LaMont Flanagan re: “Blanket Strip Search Practice”; (ii) an October 16, 2002 memorandum by AAG Marrow to then-Division Commissioner LaMont Flanagan re: “strip searches,” with a copy provided to AAG Stuart M. Nathan; and (iii) a December 5, 2005 memorandum by AAG Karl A. Pothier to then-Division Commissioner William J. Smith “re: BCBIC’s Search Policy Regarding Pre-Presentment Detainees,” with copies provided to then-Deputy Commissioner Howard Ray, Deputy Commissioner Brown, Warden Franks, and AAGs Nathan and Judith A. Barr.
(Paper No. 168-2, 2.) The Court has reviewed the three memoranda in camera.
Defendants assert that these memoranda are confidential, inter-office communications that contain the opinions and recommendations of counsel regarding the scope of the Division’s arrestee search practices; they seek protection for the documents under two theories: the attorney-client privilege and executive
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privilege. The plaintiffs dispute the privileged status of the documents. For the reasons set forth below, the Court finds that neither privilege applies to these documents and they must be produced.
Discussion The Attorney-Client Privilege
The purpose of the attorney-client privilege is “to encourage full and frank communications between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.” Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). The privilege is “not favored by the federal courts” because it interferes with the truth seeking process and contravenes the right of citizens to evidence, and should be “strictly confined within the narrowest possible limits consistent with the logic of its principle.” In re Grand Jury Proceedings, 727 F.2d 1352, 1355 (4th Cir. 1984).
The traditional test for determining the applicability of the privilege was articulated by Judge Wyzanski in United States v. United Shoe Machinery Corp., 89 F. Supp. 357 (D. Mass. 1950):
The privilege applies only if: (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of a bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer;
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(3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purposes of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client. Id. at 358-59. See also In re Allen, 106 F.3d 582, 600 (4th Cir. 1997) (applying the traditional test set out above). Neither the plaintiffs nor the Court question the existence of an attorney-client relationship between the OAG (the two AAGs who authored the subject memoranda, Messrs. Glenn Marrow and Karl Pothier) and the addressees LaMont Flanagan and William J. Smith, Commissioners of the Division.) See MD. CODE ANN., CORR. SERVS. § 2-116 (West 2008). Thus, criteria (1) and (2) of United Shoe are easily satisfied. However, the fact of an attorney-client relationship does not, of course, make all communications between an attorney and his client privileged. Indeed, the law is quite to the contrary. The third criterion of United Shoe is that “the communication relates to a fact of which the attorney was informed (a) by his client, (b) without the presence of strangers, (c) for the purpose of securing primarily either (i) an opinion on law, or (ii) legal services, or (iii) assistance in some legal proceeding.” The Fourth Circuit in United States v. (Under Seal), 748
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F.2d 871, 874 (4th Cir. 1984) establishes a very narrow view of this aspect of the attorney-client privilege.
Because the privilege protects the substance of communications, it may also be extended to protect communications by the lawyer to his client, agents or superiors or to other lawyers in the case of joint representation, if those communications reveal confidential communications. Id. (emphasis added) This decision places the Fourth Circuit clearly among the “strict construction courts” who “extend the privilege to legal opinions and communications from attorneys to clients only if and, arguably only to the extent, that the opinion contains within it, and arguably inextricably bound up to the legal opinion, the confidences made by the client to the lawyer that form the basis of the legal opinion.” Epstein, Edna Selan, The Attorney-Client Privilege and the Work Product Doctrine 78 (5th ed. 2007). The defendants, however, argue that the privilege “encompasses communications from the attorney to the client, including ‘self initiated attorney communications intended to keep the client posted on legal developments and trends, including implications of client activity noticed by the attorney but with regard to which no written request for advice from the client has been found,” quoting Jack Winter, Inc. v. Koratron Co., 54 F.R.D. 44, 46 (N.D. Cal. 1971), and citing Burlington Indus. v. Exxon Corp., 65 F.R.D. 26, 37 (D. Md. 1974). (Paper
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No. 214, 4.) The Jack Winter holding, of course, represents a broad construction of the privilege,1 firmly rejected in the 1984 U.S. v. (Under Seal) decision. The Fourth Circuit has never cited either Jack Winter or Burlington with approval on this point. Moreover, the defendants did not (and could not) find any post 1984 authority in the Fourth Circuit for such an expansive view of the attorney-client privilege. Rather, as United States v. (Under Seal) makes clear, lawyer communications at issue here are only privileged insofar as they reveal confidential client communications. 748 F.2d at 874.
The burden is on the proponent of the privilege, here the defendants, to demonstrate “not only that an attorney-client relationship existed, but also that the particular communications at issue are privileged[(confidential)] and that the privilege was not waived.” In Re: Grand Jury Subpoena, 341 F.3d 331, 335 (4th Cir. 2003) (citing United States v. Jones, 696 F.2d 1069, 1072 (4th Cir. 1982)); Accord United States v. Martin Marietta, 886 F. Supp. 1243, 1244 (D. Md. 1995).
As the Fourth Circuit explained in United States v. (Under Seal), “[i]n practical terms, this burden requires the proponent to explain, through ex parte submissions if necessary to maintain confidentiality, the significance or meaning of an otherwise cryptic document.” 748 F.2d 871, 876 (4th Cir. 1984). When the
1 See Epstein, 84.
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requesting party challenges the sufficiency of the privilege
assertion, the producing party bears the burden of establishing
an evidentiary basis (such as an affidavit) to support each
element of each privilege or work product protection sought, for
each document. Victor Stanley, Inc. v. Creative Pipe, Inc., ---
F.Supp.2d ----, 2008 WL 2221841, *11 (D. Md. May 29, 2008).2
In support of their assertions of privilege, the defendants
submit two affidavits of Benjamin Brown, the current Deputy
Commissioner3 for the Division of Pretrial Detention and
Services.4 Deputy Commissioner Brown states that he “found the
2 If the evidentiary basis is not established, the documents should be produced. Id. (“If...the requesting party challenges the sufficiency of the assertion of privilege/protection, the asserting party ...bears the burden of establishing an evidentiary basis - by affidavit, deposition transcript, or other evidence - for each element of each privilege...claimed for each document or category of document. A failure to do so warrants a ruling that the documents must be produced because of the failure of the asserting party to meet its burden.”). See also Neuberger Berman Real Estate Income Fund, Inc. v. Lola Brown Trust No. 1B, 230 F.R.D. 398, 409-10 (D. Md. 2005); Neighborhood Dev. Collaborative v. Murphy, 233 F.R.D. 436, 442 (D. Md. 2005); Byrnes v. Jetnet Corp., 111 F.R.D. 68, 71 (M.D.N.C. 1986)(“It is incumbent upon the proponent to specifically and factually support his claim of privilege, usually by affidavit, to satisfy this burden, and an improperly asserted privilege is the equivalent of no privilege at all.”).
3 The Deputy Commissioner gave the first affidavit “under penalties of perjury that the contents . . . are true to the best of [his] knowledge, information and belief”, (Paper No. 168-4) and the second affidavit “under penalties of perjury that the contents of this supplemental affidavit are true to the best of my personal knowledge.” (Paper No. 214-2.)
4 As Deputy Commissioner, a post he has occupied from May 2001 to September 2003, he says his duties are the oversight of “the administrative functions of the Division, including finance, human resources, procurement, technology and training” and “as needed and as directed by the Division’s Commissioner, all other operations within the Division, such as custody and security.” (Paper No. 168-4, ¶ 1.)
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information contained [in the subject memoranda] to be strictly confidential.” (Paper No. 168-4, ¶ 4.) He further states that the memoranda are “interoffice communications that contain the opinions and recommendations of the Division’s attorneys, which the Division sought as part of the Division’s ongoing deliberative process in deciding what executive action, if any, was appropriate with respect to the Division’s search practices of arrestees.” (Id.) Finally, Deputy Commissioner Brown concludes that the “[p]roduction or disclosure of the memoranda would be contrary to the public interest . . . thwart[ing] the policy and decision-making process of the Division.” (Id. at ¶ 5.) In his supplemental affidavit, he further states that “[t]he Commissioner and the senior staff did not disseminate the memoranda further down through the ranks of the Division’s correctional staff and non-uniform personnel, and, to the best of my personal knowledge, this remains the case as of the date of the instant Supplement.” (Paper No. 214-2, ¶ 2.)
It is the responsibility of the Court to construe the privilege strictly, see In re Grand Jury Proceedings, 727 F.2d 1352, 1356 (4th Cir. 1986); U.S. v. Jones, 696 F.2d 1069 (4th Cir. 1982); and allow protection of documents only if specific requirements are met.
He was Assistant Commissioner from September 2003 to January 2008. (Id.) He does not, however, describe his duties as assistant commissioner.
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These three memoranda set out the Assistant Attorney General’s view of the law on strip searches, but none either explicitly or even implicitly suggest that the advice is in response to a request for legal advice. The memoranda bear one of the following: “ATTORNEY CLIENT COMMUNICATION DO NOT DIVULGE THE CONTENTS OF THIS MEMORANDUM TO ANYONE OTHER THAN THE ADDRESSEE”, “ATTORNEY-CLIENT COMMUNICATION-DO NOT DISCLOSE THE CONTENTS OF THIS MEMORANDUM TO ANY PARTY OTHER THAN THE ADDRESSEES”, or “CONFIDENTIAL AND PRIVILEGED ATTORNEY-CLIENT COMMUNICATION.” Two of these memoranda preface a legal opinion with the writer’s “understanding” of the BCBIC current policy on strip searches. The third memorandum states the writer’s information as to “whether there is a blanket policy of visual strip searches for all detainees who are processed at BCBIC.”
While the Deputy Commissioner states that the “opinions and recommendations of the Division’s attorneys, which the Division sought as part of the Division’s ongoing deliberative process,” he does not produce a written request seeking this advice or provide the specific context for these memoranda of legal advice. Obviously, the Deputy Commissioner is unable to testify if the addressees asked for the legal advice given in these three memoranda or what confidential information, if any, the addressees gave the Assistant Attorneys General if legal advice was requested.
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The Court rejects the applicability of the attorney-client privilege as to all three memoranda. First, and most importantly, a review of the memoranda themselves and the limited context of the communications provided by Deputy Commissioner Brown does not indicate that any of these memoranda were the result of a request for legal advice. Even if it were assumed that the legal advice in these memoranda were specifically requested by Commissioner Flanagan or Commissioner Smith, that does not shield the entirety of the memoranda, whether requested or not. The legal advice is not privileged; it is only the confidential client communications that are.
The question remains whether the writer’s recitation of his understanding of the practice or policy of the Division regarding strip searches is privileged. The answer is no. There is no factual basis upon which to find that this information was provided by the client and with the expectation of confidentiality. The source of the information and the circumstances of its transmission to the Assistant Attorney General writers is unknown. The third criterion of United Shoe requires that the communication (to be privileged) must be transmitted to the attorney, by the client, without the presence of strangers for the purpose of securing a legal opinion or legal services. 89 F. Supp. At 358-59. It is impossible to know how the Assistant Attorney General writers came to their
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understandings of the Division strip search policy practice. While Deputy Commissioner Brown concluded that the “information contained [in the subject memoranda] to be strictly confidential in nature,” (Paper No. 168-4), that does not address, much less demonstrate, that the strip search practice or policy information was transmitted “confidentially,” i.e., from client to attorney, without the presence of strangers for the purpose of obtaining a legal opinion or legal services.
Having reviewed the three memoranda at issue, they appear to be initiated by the OAG -- not in response to any identified inquiry from the Commissioner and do not contain any confidential client information. The memoranda do contain a recitation of current policy but that type of information seems by its nature not confidential, nor was it characterized as such in the memoranda. Nor - as discussed above - did the defendants provide any factual support that the information was gathered from the client, in confidence and maintained in confidence. The Deputy Commissioner’s statement in his supplemental affidavit that these memoranda were treated as “wholly confidential” and were not disseminated beyond the Division’s senior administrative staff “through the ranks of the Division’s correctional staff and nonuniform personnel,” (Paper No. 214-2, ¶ 2) is highly conclusory. He produces neither a written policy to that effect or a description of procedures to guarantee such confidentiality, such
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as locations where documents found, etc. Finally, it is not
necessarily clear from his described duties as Deputy
Commissioner that he would be in a position to know document
control procedures. In any event, the Division’s treatment of
them as confidential is only one of the criteria for privilege;
the rest have not been met. In sum, these memoranda enjoy no
privilege under governing Fourth Circuit law.
The Executive or Deliberative Privilege
Here, defendants argue that the memoranda are protected by
the executive privilege - generated by the OAG to the Division’s
Commissioner, to aid him in his deliberations regarding the
search practices of arrestees at BCBIC.5 (Paper No. 168-2, 5-
5 Both parties cite Maryland and federal law in discussing this privilege. In Hamilton v. Verdow, this Court certified to the Court of Appeals of Maryland the question of whether an investigative report was protected by the executive privilege. 414 A.2d 914 (1980) The Court of Appeals noted that “the relevance of Maryland law regarding privilege stems from the provisions of Rule 501, Federal Rules of Evidence, which provides:
Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the privilege of a witness, person, government, State, or political subdivision thereof shall be determined in accordance with State law.”
Id. at 918 n.2. Hamilton, however, was before the federal court by diversity jurisdiction. Id. at 917. Because state law supplied the rule of decision in that case, the government’s claim of executive privilege was properly decided in accordance with Maryland law.
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6.)
The executive or deliberative-process privilege6 exists to
protect the governmental decision-making process.7 It protects
Where the claim is before a federal court by federal question jurisdiction, however, state privilege law does not automatically govern. Fed. R. Evid. 501. See United States v. Cartledge, 928 F.2d 93, 95-96 (4th Cir. 1991) (agreeing that “a federal court is not necessarily bound by a state rule of law creating an evidentiary privilege”); Hartsell v. Duplex Prods., Inc., 895 F. Supp. 100, 102 (W.D.N.C. 1995) (“State statutory privileges do not automatically apply to federal claims in federal court.”). Cf. United States v. Tedder, 801 F.2d 1437, 1441 (4th Cir. 1986) (“Rule 501 of the Federal Rules of Evidence requires federal courts to apply federal common law to assertions of privilege in criminal cases.”). In federal question cases, “a court must determine whether federal and state law conflict over the privilege at issue.” Hartsell, 895 F. Supp. at 102. Where the privileges conflict, Fourth Circuit law dictates that courts balance the competing federal interests and principles of comity to determine which law controls the federal claim. Cartledge, 928 F.2d at 96; see also Hartsell, 895 F. Supp. at 102 (applying the principles set out in Cartledge in a civil action under Title VII).
The executive privilege in Maryland is substantially similar to the privilege under federal law. Compare Hamilton, 414 A.2d at 558 (“The necessity for some protection from disclosure clearly extends to confidential advisory and deliberative communications between officials and those who assist them in formulating and deciding upon future governmental action.”) with Greene, 93 F.R.D. at 659 and Carl Zeiss, 40 F.R.D. at 324 (discussed in main text above). See also Hamilton, 414 A.2d at 921-26 (relying on federal law, including Carl Zeiss, in determining the bounds of executive privilege under Maryland law). Thus, because the state and federal laws of executive privilege do not conflict, this Court has applied federal law to the privilege issues in this federal question litigation.
6 The terms “executive” and “deliberative process” are used interchangeably to describe the same executive privilege to withhold documents and information. Wright & Graham, Federal Practice and
Procedure: Evidence § 5680; see also N.L.R.B. v. Sears, Roebuck & Co.,
421 U.S. 132 (1975); Hanson v. U.S. Agency for Int’l Dev., 372 F.3d 286 (4th Cir. 2004).
7 The privilege reflects the conviction that certain governmental decisions must be made in confidence to be effective. Greene v. Thalhimer’s Dep’t Store, 93 F.R.D. 657, 659 (E.D. Va. 1982); see also Sears Roebuck & Co., 421 U.S. at 150 (noting that “[t]he point, plainly made...is that the ‘frank discussion of legal or policy matters' in writing might be inhibited if the discussion were made
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from disclosure advice, opinions and recommendations that are
part of the decision-making process; the goal is “to prevent
injury to the quality of agency decisions.” N.L.R.B. v. Sears,
Roebuck & Co., 421 U.S. 132, 151 (1975).8 Specifically, “three
policy purposes have consistently been held to constitute the
bases for this privilege:”
1) to encourage open, frank discussions on
public; and that the ‘decisions’ and ‘policies formulated’ would be the poorer as a result); Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, 40 F.R.D. 318, 324 (D.D.C. 1966) (finding that “the privilege subserves a preponderation policy of frank expression and discussion among those upon whom rests the responsibility for making the determinations that enable government to operate”). The privilege “shields from disclosure ‘intra-governmental documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.’” Greene, 93 F.R.D. at 659 (quoting Carl Zeiss, 40 F.R.D. at 324).
8 The deliberative process privilege has been specifically incorporated into the Freedom of Information Act (“FOIA”) as an exception. 5 U.S.C. § 552(b)(5). Much of the federal case law discussing the privilege does so within the FOIA context. Maryland has its own Public Information Act, and has incorporated a deliberative process privilege exception as well. The Maryland Attorney General’s Public Information Act Manual states:
Another example of information protected by a recognized privilege is confidential executive communications of an advisory or deliberative nature. See Office of the Governor v. Washington Post Co., 360 Md. 520, 759 A.2d 249 (2000); Hamilton v. Verdow, 287 Md. 544, 414 A.2d 914 (1980); Laws v. Thompson, 78 Md. App. 665, 69093, 554 A.2d 1264 (1989); 66 Opinions of the Attorney General 98 (1981). Not every executive communication is itself advisory or deliberative.
Office of the Maryland Attorney General, Public Information Act Manual, (December, 2000) available at www.oag.state.md.us/Forms/book. pdf. The parallel suggests that Maryland considers its executive privilege to be the same, or similar to the federal deliberativeprocess privilege.
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matter of policy between subordinates and superiors; 2) to protect against premature disclosure of proposed policies before they are finally adopted; and 3) to protect against public confusion that might result from disclosure of reasons and rationales that were not in fact ultimately the grounds for an agency’s action. Justin D. Franklin et al., Guidebook to The Freedom of Information and Privacy Acts § 1:57 (2008); see also Sears, Roebuck & Co., 421 U.S. at 151. The pivotal question is: “whether the materials bear on the formulation or exercise of agency policy-oriented judgment ...[and] whether disclosure would tend to diminish candor within an agency.” City of Va. Beach v. U.S. Dep’t Of Commerce, 995 F.2d 1247, 1254 (4th Cir. 1993)(internal citations omitted). “This privilege...must be construed as narrowly as consistent with efficient Government operation.” Wolfe v. Dep’t of Health and Human Servs., 839 F.2d 768, 773 (D.C. Cir. 1988)(internal quotations omitted). There are two traditional requirements for invocation of the privilege: that the communication be 1) predecisional, i.e., “antecedent to the adoption of an agency policy...,” and 2) deliberative, i.e., “a direct part of the deliberative process in that it makes recommendations or expresses opinions on legal or policy matters.” Franklin, supra, § 1:57 (internal citations omitted); see also City of Va. Beach. For a communication to be predecisional, it does not have to be anchored to a specific, discrete, final decision. In Sears,
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Roebuck & Co., the Supreme Court noted that:
Our emphasis on the need to protect predecisional documents does not mean that the existence of the privilege turns on the ability of an agency to identify a specific decision in connection with which a memorandum is prepared. Agencies are, and properly should be, engaged in a continuing process of examining their policies; this process will generate memoranda containing recommendations which do not ripen into agency decisions; and the lower courts should be wary of interfering with this process.
421 U.S. at 153; Accord City of Va. Beach, 995 F.2d at 1253; see
also 1 McCormick On Evidence § 108 (6th ed.)(“[T]he government is
not required to identify a particular decision to which the
communication contributed as long as the deliberative process
involved and the role played by the communication are
identified.”).
“While the government need not anchor documents to a single
discrete decision amidst ongoing deliberative processes,” the
Fourth Circuit has warned that “an overly lax construction of the
term ‘predecisional’ submerges the rule of disclosure under the
exemption.” City of Va. Beach, 995 F.2d at 1255 (citing Assembly
of Cali. v. United States Dep’t of Commerce, 968 F.2d 916, 921
(9th Cir. 1992)(“Any memorandum always will be ‘predecisional’ if
[referenced] to a decision that possibly may be made at some
undisclosed time in the future.”) and Coastal States, 617 F.2d at
868 (“characterizing these documents as ‘predecisional’ simply
because they play into an ongoing audit process would be a
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serious warping of the meaning of the word.”). The Court in City of Va. Beach determined that certain documents were privileged, but only because they were drafted in conjunction with pending proceedings, antecedent to an identifiable outcome. 995 F.2d at 1255.
Evidence of the use of the subject document as a basis for discussion, prior to making a final decision, is considered a sign of its pre-decisional nature. In Renegotiation Board v. Grumman Aircraft, 421 U.S. 168, 185 (1975), the reports were prepared by regional boards; they assessed whether government contractors had received excessive profits. Id. The reports were submitted to a higher board, with final decisionmaking authority, which used the regional board reports as a basis for discussion before making a final decision. Id. The Supreme Court noted that the “reports were prepared long before the Board reached its decision...,” and considered that important in determining that the reports were predecisional. Id. Likewise, in City of Va. Beach, the documents - aimed at determining whether and how to build a water pipeline - were drafted in conjunction with judicial and administrative proceedings where final decisions were anticipated. 995 F.2d at 1249-50.
Under the narrow construction of the privilege, legal memoranda - relied upon by recipients as statements of law and
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public policy - have not been found to be “predecisional.” The D.C. Circuit in Tax Analysts v. Internal Revenue Service, dealt with legal memoranda strikingly similar to those at issue in the instant case. 117 F.3d 607 (D.C. Cir. 1997). The documents were labeled Field Service Advice Memoranda (“FSAs”), and they were issued by the Office of the Chief Counsel for the IRS to field personnel. Id. at 608-09. As in this case, the memoranda were intended to ensure “that field personnel apply the law correctly and uniformly,” but nonetheless were not binding upon the field personnel. Id. The Court opined that the FSA’s were routinely used by field personnel, who while not bound, rely heavily on the FSAs as statements of law. Id. at 617. “Rather than documents produced in the process of formulating policy, FSAs are themselves statements of an agency’s legal position and, as such, cannot be viewed as predecisional.” Id. While “FSAs may precede...[decisions] in a particular taxpayer’s case, they do not precede the decision regarding the agency’s legal position. Representing the considered view of the Chief Counsel’s national office on significant tax law issues, FSAs do not reflect the “give and take” that characterizes deliberative materials.” Id.
As to the memoranda here, there is no indication that they were antecedent to a particular decision, nor part of a deliberative process intended to lead to a final result, or arrive at a final conclusion. Instead, they were sua sponte
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statements of law, and assessments of existing policy. In short, these memoranda lack that crucial characteristic shared by the documents in Gruman and Virginia Beach: a connection with an anticipated final outcome. Moreover, they are strikingly similar to the FSAs in Tax Analysts, in that they are legal memoranda, stating a legal position on existing policies, relied upon by the personnel who receive them. Under Tax Analysts, such documents are simply not predecisional. The Court Circuit in Virginia Beach warned against an “overly lax” construction of the term “predecisional;” the Court cannot determine that the OAG memoranda fall within that category. To label the memoranda “predecisional” would be to “submerge the rule of disclosure under the exemption.” Id. If these memoranda are found “predecisional” any legal memoranda on any subject in a state official’s portfolio would qualify. The privilege is not that broad.
Neither are the memoranda part of a deliberative give-andtake to qualify for the privilege. Deliberative material “reflects the give-and-take of the consultative process...by revealing the manner in which the agency evaluates possible alternative policies or outcomes.” City of Va. Beach, 995 F.2d at 1253 (internal citations omitted). The Fourth Circuit has adopted the give-and-take test to determine whether documents are deliberative; thus, the deliberative-process privilege protects
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conversational documents - those intended to fuel a dialogue: “recommendations, draft documents, proposals, suggestions, and other subjective documents” that reflect personal opinion. Id. (Internal citations omitted). There was an actual back-and-forth in the documents in City of Va. Beach among agencies and parties, over the implications of a water pipeline system.
That back-and-forth is critical to a determination that documents and communications are deliberative. See, e.g., Access Reports v. Dep’t of Justice, 926 F.2d 1192, 1195 (D.C. Cir. 1991)(stating that a document is deliberative if it “reflects the give-and-take of the consultative process”)(internal citations omitted); see also Tax Analysts, 117 F.3d at 617 (“FSAs do not reflect the give-and-take that characterizes deliberative materials, [the] government’s opinion about what is not the law and why it is not the law is as much a statement of government policy as its opinion about what the law is.”). Simple statements of law, or evaluations of existing policies, do not enjoy the characteristics of that give-and-take process necessary to make them deliberative.
The D.C. Circuit, in Coastal States v. Department of Energy, dealt with legal memoranda prepared by Department of Energy Counsel, interpreting DOE regulations for field personnel. 617 F.2d 854, 857 (D.C. Cir. 1980). The memoranda were, as in Tax Analysts, not strictly binding on field personnel, but were
20

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responses to requests for guidance on the applicability of regulations to a set of facts. The Court in Coastal States stated that such memoranda are “more akin to a resource opinion about the applicability of existing policy to a certain state of facts[;] they [do not] reflect agency give-and-take of the deliberative process by which the decision itself is made.” Id. at 868 (internal citations omitted). Contrarily, the documents at issue in Virginia Beach were part of a give-and-take where individuals and agencies exchanged opinions and concerns over the proposed water pipeline project. 995 F.2d at 1250. “The role played by the documents in issue” during the process largely determines whether the documents are predecisional and deliberative. Coastal States, 617 F.2d at 868.
The OAG memoranda do not reflect a give-and-take process. They are statements of law rather than contributions to the formulation of agency policies. There is no indication the memoranda were preceded by a request, or that responses were elicited for use in some meeting or other forum. They are not like the City of Va. Beach documents, which were part of a broader dialogue taking place among various parties.
Finally, the memoranda did not travel from subordinate to superior and were more akin to binding advice than suggestive or advisory recommendations. One of the main policy justifications for the privilege is to protect open and frank discussions
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between subordinates and superiors. Environmental Protection Agency v. Mink, 410 U.S. 73, 87 (1973). The D.C. Circuit in Puerto Rico noted that the pertinent “case law . . . identifies two factors in determining whether this privilege is available: “the nature of the decisionmaking authority vested in the officer or person issuing the disputed document, and the relative positions in the agency’s ‘chain of command’ occupied by the document’s author and recipient.” (internal citations omitted.) Here, the Assistant Attorneys General cannot be properly characterized as subordinate to the Commissioner. The Attorney General is the legal adviser to the Department of Correctional Services, but the Office of the Attorney General also has “general charge of the legal business of the State.” MD. CODE ANN., STATE GOV’T, § 6-106 (West 2008). Courts have recognized that legal memoranda from counsel to client are qualitatively different than the “recommendations, draft documents, proposals, suggestions and other subjective documents which reflect the personal opinions of the writer.” City of Va. Beach, 995 F.2d at 1253. Lawyers operate in a different sphere, offering something different than simply another view on appropriate policy.
OAG opinions are more than advisory, and carry more weight than mere recommendations. As already mentioned above, the Court in Tax Analysts opined that even though legal memoranda were not strictly binding upon the recipients, the fact that field
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personnel regularly followed the advice contained in the FSA’s suggested the documents were not predecisional or deliberative. 117 F.3d at 608-09. Courts often look “beneath formal lines of authority to the reality of the decisionmaking process...” to determine where authority lies, and how often “recommendations” are complied with. Schlefer v. United States , 702 F.2d 233, 238 (D.C. Cir. 1983). In Schlefer, legal memoranda titled CCOs were created by the Chief Counsel of the Maritime Administration, and given to Maritime Administration officials who requested the advice. Id. at 236. Decisionmaking authority technically remained with those requesting advice. Id. at 237. But the Court opined that the agency “failed to demonstrate that the Chief Counsel merely “advises” requesting officials on” legal matters. Id. at 241. Similarly, the OAG memoranda are legal memoranda - statements of law - which are more than mere suggestions; they represent the legal position of the Attorney General, and thus, the state, on legal issues. Review of the memoranda demonstrates that the AAGs were not offering their personal view on a policy question; rather they were offering a straightforward legal opinion to a non-lawyer, agency official. That agency official would ignore this legal opinion at his peril.
In his affidavit, Mr. Brown declares that “[t]he memoranda . . . [were] sought as part of the Division’s ongoing deliberative
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process in deciding what executive action, if any, was appropriate with respect to the Division’s search practices of arrestees.” (Paper No. 168-4, 2.) But a careful review of the documents has not convinced the Court that they are predecisional and deliberative. They are not antecedent to an particular decision, nor part of a particular policy process. They are not part of an internal discussion, or back-and-forth intended to arrive at a conclusion. They are not from a subordinate to a superior, despite the fact that the recipient agency may retain decisionmaking authority. “The privilege protects recommendations, draft documents, proposals, suggestions, and other subjective documents which reflect the personal opinions of the writer rather than the policy of the agency.” Allnutt v. U.S. Dep’t of Justice, 2000 WL 852455, at *10 (D. Md. Oct. 23, 2005). The memoranda absolutely do not fall into that category of deliberative documents. Instead, they constitute the considered view of a sister agency on the law. While the Court recognizes the need for the OAG to engage in ongoing communications with its state agency clients, all of its communications are not privileged. The executive or deliberate privilege, like the attorney-client privilege is to be narrowly construed. These communications do not meet the test.
Accordingly, neither privilege applies and defendants shall
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Case 1:05-cv-01287-CCB Document 237 Filed 11/26/08 Page 25 of 25 produce the memoranda to plaintiffs no later than December 5, 2008.
Despite the informal nature of this letter, it will constitute an Order of the Court and will be docketed accordingly.
Sincerely yours, /s/
Susan K. Gauvey United States Magistrate Judge
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 </s> Case 1:05-cv-01287-CCB Document 265 Filed 02/23/09 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

ERIC JONES, et al.
v. SUSAN MURPHY, et al.

:

:

:

:

:

Civil No. CCB-05-1287

:

:

:

...o0o...

MEMORANDUM

At the request of the state defendants in the § 1983 litigation, I referred to Magistrate Judge

Susan K. Gauvey for resolution a discovery dispute set forth in the defendants’ motion for protective

order filed March 18, 2008. The dispute involves three memoranda written in 2000, 2002, and 2005

by Assistant Attorneys General to the then-Commissioners of the state’s Division of Pretrial

Detention and Services (the “Division”) concerning arrestee search practices at Baltimore Central

Booking and Intake Center (“BCBIC”). By letter memorandum issued November 26, 2008, after

hearing argument and receiving supplemental briefing, Judge Gauvey found that the defendants had

failed to establish the documents were protected by either the attorney-client privilege or by the

executive “deliberative process” privilege. Accordingly, she ordered the memoranda be produced

to plaintiffs in this case. The defendants filed objections and requested a stay of the order to

produce, which I granted. After reviewing the documents ex parte and in camera, I heard oral

argument on February 18, 2009. For the reasons that follow, I will affirm Judge Gauvey’s ruling.

A magistrate judge’s ruling on a discovery matter may be modified or set aside only if the

party objecting has shown the ruling to be “clearly erroneous or contrary to law.” Fed. R. Civ. P.

72(a); see also 28 U.S.C. § 636(b)(1)(A). Based on the record before her, Judge Gauvey’s ruling

1

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was neither clearly erroneous as to the relevant facts nor contrary to controlling law. In brief summary, and as defendants essentially concede, Judge Gauvey correctly held that
the attorney-client privilege may protect a communication from the attorney to the client but only insofar as that communication reveals confidential information obtained from the client. United States v. (Under Seal), 748 F.2d 871, 874 (4th Cir. 1984). The burden is on the defendants to identify the confidential client information contained in the memoranda, and the two affidavits of Deputy Commissioner Benjamin Brown fail to do so. Significantly, no affidavits were provided by any author or recipient of any of the memoranda other than Deputy Commissioner Brown, who is copied on the 2005 memorandum. Similarly, the burden is on the party seeking to establish the executive or deliberative process privilege to establish its applicability, see Hanson v. U.S. Agency for Int’l Dev., 372 F.3d 286, 290 (4th Cir. 2004) (FOIA litigaton), and the Brown affidavits are not sufficient to do so, nor is it self-evident from the contents of the memoranda that they are truly predecisional and part of the “give-and-take” process the privilege protects. City of Va. Beach, Va. v. U.S. Dep’t of Commerce, 995 F.2d 1247, 1253 (4th Cir. 1993).
The defendants in their objections also rely on the attorney work-product doctrine, which was not addressed by Judge Gauvey.1 Once again, the Brown affidavits simply are not sufficient to establish, as Fourth Circuit law requires, that the documents were prepared “because of” anticipated litigation and in preparation for that litigation. National Union Fire Ins. Co. v. Murray Sheet Metal Co., 967 F.2d 980, 984 (4th Cir. 1992); see also Hanson, 372 F.3d at 292-93. While the documents refer to certain litigation, it is again not evident that they were drafted because of that
1 This omission is understandable given the defendants’ failure to argue the point other than by way of footnote in their reply memorandum. (See Defs.’ Reply at 4 n.2.)
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litigation, as opposed to providing general legal advice, including non-confidential information about litigation. Accordingly, there is insufficient support in the record before Judge Gauvey or the objections before me to establish that the attorney work-product doctrine bars disclosure of these documents.
To be clear, this ruling is limited, as it must be, to the specific facts and documents before the court. It should not be taken to mean that the state defendants could not establish and rely on the deliberative process or attorney-client privilege, or benefit from work-product protection, as they conduct litigation in the future. The court recognizes the importance of those protections, when properly established, in the conduct of the state’s business. For the reasons stated above, however, Judge Gauvey’s thorough and carefully considered ruling in this case will be affirmed.
A separate Order follows.

February 23, 2009 Date

/s/ Catherine C. Blake United States District Judge

3

 </s> Case 1:05-cv-01287-CCB Document 270 Filed 03/19/09 Page 1 of 13

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

ERIC JONES, et al. v.
SUSAN MURPHY, et al.

: : : CIVIL NO. CCB-05-1287 : : ...o0o...

MEMORANDUM

Now pending before the court is plaintiffs’ motion for class certification. The plaintiffs

seek to certify four classes of arrestees subjected to alleged unconstitutional policies or practices

at the Baltimore Central Booking and Intake Center (“CBIC”). The defendants, current and

former wardens of CBIC, oppose the motion. The matter has been fully briefed, and oral

argument was held on February 18, 2009. For the reasons articulated below, the plaintiffs’

motion will be granted in part and denied in part.

BACKGROUND CBIC is the central location for booking and processing arrestees in Baltimore City. The plaintiffs assert that the defendants are liable for unconstitutional strip searches of arrestees as well as unconstitutional overdetentions of arrestees at CBIC.1 The plaintiffs propose four classes, each with a class period beginning May 12, 2002: (1) the overdetention class, represented by Kevin Adams, Tonia Bowie, Anthony Haig, and Michael Washington, consisting
1Additional background of this litigation is set forth in the prior decisions of the court. See Jones v. Murphy, 470 F.Supp.2d 537 (D. Md. 2007) (defendants’ motion to dismiss); Jones v. Murphy, 567 F.Supp.2d 787 (D. Md. 2008) (plaintiffs’ motion for summary judgment). Familiarity with those decisions is presumed.
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of arrestees detained at CBIC for more than 48 hours after arrest without release or presentment before a judicial officer; (2) the suspicionless strip search class, represented by Anthony Haig, Gary Saunders, Michael Washington, and Dana West, consisting of persons arrested for crimes not involving weapons, drugs, or felony violence, who were strip searched prior to or without presentment before a judicial officer;2 (3) the non-private strip search class, represented by Anthony Haig, Gary Saunders, Michael Washington, and Dana West, consisting of arrestees subjected to strip searches at CBIC in the presence of other arrestees or staff not involved in the search prior to or without presentment before a judicial officer; and (4) the equal protection underwear strip search class, represented by Kevin Adams, Gary Saunders, and Aaron Ross, consisting of male arrestees at CBIC who were searched down to their underwear prior to or without presentment before a judicial officer while female arrestees were not.3
ANALYSIS To obtain class certification, the plaintiffs must meet all four requirements of Federal Rule of Civil Procedure 23(a), and at least one of the requirements of Rule 23(b). Gunnells v. Healthplan Servs., Inc., 348 F.3d 417, 423 (4th Cir. 2003). The plaintiffs seek certification of the proposed classes under Rule 23(b)(3), which requires that common questions of law or fact predominate.
2The plaintiffs define a strip search as “the removal, pulling down, or rearrangement of clothing for the visual inspection of a person’s genital and/or anal areas, which may also include requiring the person to squat and cough, in the presence of one or more guards.” (Pls.’ Proposed Class Definitions at 2.)
3The plaintiffs are no longer seeking certification of a fifth class: an equal protection strip search class composed of all males strip searched at CBIC while female arrestees were not. (Pls.’ Proposed Class Definitions at 3.)
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A. Rule 23(a) Pursuant to Rule 23(a), for each class, the plaintiffs must satisfy the following elements:
“(1) numerosity of parties; (2) commonality of factual and legal issues; (3) typicality of claims and defenses of class representatives; and (4) adequacy of representation.” Gunnells, 348 F.3d at 423. The defendants do not challenge the plaintiffs’ ability to satisfy the first three Rule 23(a) requirements, and the court will address them briefly. As to numerosity, the plaintiffs have put forth sufficient evidence that the proposed classes will number in the thousands and that joinder of all members is thus impracticable. The commonality and typicality requirements tend to merge because they “[b]oth serve as guideposts for determining whether ... the named plaintiff's claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected....” Stott v. Haworth, 916 F.2d 134, 143 (4th Cir. 1990) (quoting Gen. Tel. Co. of the Southwest v. Falcon, 457 U.S. 147, 157 n.13 (1982)). The plaintiffs satisfy commonality and typicality because in each proposed class there are common issues that are central to each of the named plaintiff’s and proposed class member’s claims: whether the defendants implemented or were deliberately indifferent to a particular policy, practice, or custom that offends the Constitution and was uniformly applied to all class members.
The defendants raise some objections to the adequacy of representation, contending that the named plaintiffs in the suspicionless strip search class, who had merely to remove their clothes, will not adequately represent those individuals who were subjected to full body cavity searches and likely suffered greater damages. The court notes, however, that “the size of a named plaintiff's financial stake in the action is not the determinative issue; rather, the issue is whether the named plaintiffs will adequately protect the interests of the class.” Bynum v. District of Columbia, 214 F.R.D. 27, 36 (D.D.C. 2003); see also In re Oxford Health Plans, 191 F.R.D.
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369, 375 (S.D.N.Y. 2000) (“[T]here is no requirement in Rule 23 concerning the amount of loss either in gross or compared with the losses of others, necessary to qualify as a class representative.”). The defendants offer only their own speculation that divergent interests will emerge regarding damage awards. As discussed below, in the event the defendants are held liable, the various options available for calculating damages permit variation according to particularized injuries. Certainly, if unforeseen issues arise that compromise the adequacy of the named plaintiffs or their counsel to represent the class, the court can revisit the issue. But, at this point, the court will not “base a finding of inadequate representation on [an] unfounded assertion that the interests of the class members might potentially be at odds.” Bynum, 214 F.R.D. at 36. The court is satisfied with the adequacy of representation; the named plaintiffs’ interests are not opposed to those of the other class members and the class counsel is qualified, experienced, and able to conduct the litigation.
B. Rule 23(b)(3) Rule 23(b)(3) requires the court to find (1) that “questions of law or fact common to the
members of the class predominate over any questions affecting only individual members” (the predominance requirement), and (2) that “a class action is superior to other available methods for the fair and efficient adjudication of the controversy” (the superiority requirement). Fed.R.Civ.P. 23(b)(3). The predominance requirement is similar to but “far more demanding” than Rule 23(a)’s commonality requirement and “tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623-24 (1997); Lienhart v. Dryvit Sys., Inc., 255 F.3d 138, 146 n.4 (4th Cir. 2001). The superiority requirement ensures that “a class action is superior to other available methods for the
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fair and efficient adjudication of the controversy.” Fed.R.Civ.P. 23(b)(3). Rule 23(b)(3) sets forth a number of factors a district court should consider in deciding whether a class action is superior to other available methods: (1) the individual interests of class members in controlling separate litigation; (2) whether and to what extent proposed class members have already commenced similar litigation; (3) the desirability of concentrating litigation in the particular forum; and, most importantly for purposes of this litigation, (4) the difficulties likely to be encountered in the management of a class action. Id. The defendants challenge the plaintiffs’ ability to meet the requirements of Rule 23(b)(3) for each proposed class.
i. Overdetention Class The plaintiffs contend, and the court agrees, that the predominant issues in determining
the defendants’ liability can be determined on a class-wide basis, including whether the defendants held the class members more than 48 hours without presentment or release, whether the defendants oversaw a practice of allowing presentment delays, and whether these alleged overdetentions violate the Constitution. The plaintiffs present sufficient evidence that determining who was detained more than 48 hours is a fairly straightforward factual inquiry that can be culled from the State’s own information in its Automated Booking System.4
The defendants argue that the individualized inquiries into whether there were legitimate reasons for the delays will predominate over common issues. The burden is on the defendants to
4The plaintiffs contend that the defendants’ database provides the date and time of arrest and, in most cases, either the date and time of presentment or, for those released without charge, the date and time of release. As for those cases where the presentment field is not populated, the plaintiffs rely on time-date scans showing the arrestee’s room-to-room movements at CBIC to determine who was there 48 hours before presentment.
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demonstrate such a legitimate reason. See Riverside v. McLaughlin, 500 U.S. 44, 57 (1991). Considering that the federal law requiring presentment within 48 hours is twice as long as Maryland’s requirement of 24 hours, see Maryland Rule 4-212(f); Logan v. State, 425 A.2d 632, 635 (Md. 1991), the court agrees with the plaintiffs that such individualized inquiries do not threaten to predominate the common issues in this claim.5
The only other significant issue regarding this claim is the remedy: the defendants contend that if the plaintiffs succeed in establishing liability, the potential damage awards for the individual class members may vary significantly and individualized inquiries into damages will predominate. The need for individualized damage decisions in class action litigation, however, does not necessarily preclude a finding that common questions of law and fact predominate over individual issues on liability. See Gunnells, 348 F.3d at 428; see also Bynum, 219 F.R.D. at 39. The court is satisfied that the aforementioned common issues of law and fact predominate. Moreover, it is unclear at this stage in the litigation what degree of individualization the determination of damages will require. See Tardiff v. Knox County, 365 F.3d 1, 6-7 (1st Cir. 2004); Johnson v. District of Columbia, 248 F.R.D. 46, 57 (D.D.C. 2008). While it is too early to rule on issues related to calculating damages, the court notes that the plaintiffs propose two potential methodologies, scaling damages based on the length of overdetention, or creating subclasses distinguishing between individuals who were never charged, those charged but released on their own recognizance, and those held on a bond.
5The plaintiffs have provided deposition testimony of a former assistant warden at CBIC claiming that during his tenure he was able to maintain a swift booking process by continually tracking the booking queue and that it was unusual for an arrestee to be held more than 24 hours before presentment. (Pls.’ Reply Ex. 156 at 48-49, 142-43.) Such evidence suggests that any legitimate reasons for delay will be limited.
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As to the superiority requirement, the court agrees that a class action is superior to other forms of litigation to resolve this claim. Class treatment is appropriate in situations, such as here, where the individual claims of many of the putative class members are so small that it would not be economically efficient for them to maintain individual suits. See, e.g., Bynum, 214 F.R.D. at 40. In certifying a class of individuals alleging they had been unlawfully strip searched at a county detention facility, another judge in this court concluded that “resolution of the liability and damages issues within the context of a class action is far more efficient than individual prosecution of damages actions. A class action is also the fairest means to settle this controversy since it is unlikely that most class members would pursue these claims on their own.” Smith v. Montgomery County, Md., 573 F.Supp. 604, 613 (D. Md. 1983). In this case, as in Bynum, both parties acknowledge that a number of individual class members who were allegedly overdetained stand to recover only a small amount of damages. The defendants assert, for example, that a number of those allegedly overdetained were committed to the Baltimore City Detention Center and thus the delay in presentment did not affect the overall length of detention. Accordingly, an individual class member’s interest in controlling a separate action against the defendants appears low. Further, given the relatively straightforward task of identifying class members, the court is satisfied that no significant management issues will arise if this action is maintained as a class. Lastly, litigation of all class members’ claims in the present forum is appropriate.
In light of the plaintiffs’ ability to satisfy all of the required elements, the court will certify an overdetention class pursuant to Rule 23(b)(3).
ii. Suspicionless Strip Search Class Here again, the defendants primarily challenge the plaintiffs’ ability to satisfy the 7

Case 1:05-cv-01287-CCB Document 270 Filed 03/19/09 Page 8 of 13
predominance requirement. Specifically, they argue that determining whether potential class members’ searches were or could have been conducted pursuant to reasonable suspicion – and thus were not illegal – will predominate over common questions of law and fact. Considering, however, that the proposed class is limited to individuals arrested on non-violent, non-drug, and non-weapons offenses who were strip searched pursuant to a blanket policy, the court is not convinced that individualized determinations regarding reasonable suspicion will predominate or cause the class litigation to become unmanageable. See In re Nassau County Strip Search Cases, 461 F.3d 219, 229-30 (2d Cir. 2006) (noting that the class definition, which included those arrested for misdemeanors or non-criminal offenses and strip searched pursuant to the defendants’ blanket policy, avoided questions of probable cause in determining class membership, and that a potential reasonableness defense, which in that case would be de minimis, as a general matter did not forestall class certification); Tardiff, 365 F.3d at 6 (noting, where strip search classes excluded those arrested for drugs, weapons or violent felonies, that if there were a rule or custom to strip search every arrestee, “then it is a fair guess that most arrestees . . . were strip searched on this basis,” and those who were not “may well not be numerous”); McBean v. City of New York, 228 F.R.D. 487 (S.D.N.Y. 2005) (concluding that where class membership was not defined with respect to the existence of reasonable suspicion, but rather was defined as those searched pursuant to blanket policy, no evidentiary hearings would be necessary to determine class membership). Rather, whether and for how long a strip search custom or policy existed, the constitutionality of that policy, and to whom the policy was applied are the predominant liability issues in the case of each proposed class member. See Dodge v. County of Orange, 226 F.R.D.177, 181-82 (S.D.N.Y. 2005).
The plaintiffs have presented sufficient evidence such that a reasonable jury could find a 8

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blanket strip search policy existed and was consistently applied by most if not all of the correctional officers at CBIC during the class period. The defendants, then, would carry the burden of demonstrating that a particular class member was or could have been lawfully strip searched based on reasonable suspicion. See, e.g., In re Nassau County Strip Search Cases, 461 F.3d at 229-30; Dodge, 226 F.R.D. at 182 (concluding that whether a particular class member could have been lawfully strip searched based on reasonable suspicion is a defense to a particular class member's claim for damages); McBean, 228 F.R.D. at 503 (concluding that where class was limited to plaintiffs arrested on non-narcotics and weapons-related offenses, individual defenses to liability would be limited); Blihovde v. St. Croix County, Wis., 219 F.R.D. 607, 62122 (W.D. Wis. 2003) (concluding that if the plaintiffs could establish liability, then the defendants would have the burden to show that a particular search was reasonable, and, because the class was limited to those arrested for misdemeanors or ordinance violations unrelated to weapons or illegal drugs, there likely would not be much evidence of reasonableness); Mack v. Suffolk County, 191 F.R.D. 16, 24 (D. Mass. 2000) (“To require Plaintiff to prove that each individual search was unsupportable, as well as indiscriminate, would be unnecessary and unfair. Given that these [individuals] were routinely strip-searched, the burden rests on Defendants to demonstrate that particular searches were reasonable.”).6
The defendants further argue that individual issues of class membership will predominate because of conflicting testimony among the guards as to who among them conducted indiscriminate strip searches and during what time periods the searches were conducted. It is
6The court need not determine at this point whether the defense arises as to liability or damages and notes that it is largely irrelevant in this case because the defendants do not maintain records establishing which arrestees, if any, were searched pursuant to a reasonable suspicion that they possessed contraband. Lacking any such evidence, a viable defense seems unlikely.
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undisputed that the defendants did not keep records as to which arrestees were strip searched; however, if the defendants maintained a blanket strip search practice, then evidence suggesting that one or two guards strayed from that practice will not defeat class certification. See, e.g., Blihovde, 219 F.R.D. at 618 (certifying the plaintiff class on the issue of the defendants’ liability where the defendants offered the testimony of one deputy sheriff who claimed she did not conduct strip searches absent probable cause); Doe v. Calumet City, 754 F.Supp. 1211, 1215 n.8 (N.D. Ill. 1990) (deciding defendants’ liability for strip search policy on class wide basis where class consisted of all women arrested on a misdemeanor or ordinance violation and defendants presented testimony of three dispatchers claiming they did not strip search all arrestees); see also Dodge, 226 F.R.D. at 182 (rejecting the defendants’ contention that whether an officer correctly applied the alleged policy would predominate noting that “[t]he only way to apply such a policy incorrectly is to fail to strip search a newly-arrived detainee” and such a person, by definition, is not a member of the class). As noted above, based on the evidence presented to the court, a reasonable jury could find that a blanket strip search custom, practice, or policy existed and that it was consistently applied – the predominant issues for all class members. The burden is again on the defendants to present sufficient evidence that particular arrestees were not subjected to the blanket policy.7
Lastly, the defendants contend that individual issues as to damages will predominate. As discussed above, individualized damages do not necessarily preclude certification. A number of federal courts that have considered this argument have certified strip search classes despite the
7According to the plaintiffs, it would be possible, using the defendants’ database, to exclude individuals from the class who were searched by a particular officer shown not to have applied the alleged blanket strip search policy. (See Pls.’ Class Cert. Mem. Ex. 124 ¶ 13.)
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potential for individualized damage determinations. See, e.g., Tardiff, 365 F.3d at 6; Johnson, 248 F.R.D. at 57; Blihovde, 219 F.R.D. at 621; Mack, 191 F.R.D. at 25. Moreover, as noted above, it may not be necessary to proceed with individualized damage determinations. If such individualized determinations are required, the court can select from a number of options such as “(1) bifurcating liability and damage trials with the same or different juries; (2) appointing a magistrate judge or special master to preside over individual damages proceedings; (3) decertifying the class after the liability trial and providing notice to class members concerning how they may proceed to prove damages; (4) creating subclasses; or (5) altering or amending the class.” See Carnegie v. Household Int’l, Inc., 376 F.3d 656, 661 (7th Cir. 2004). The plaintiffs have proposed using a damages matrix such that a jury could set a schedule of damages for class members or using statistical sampling to try damages on a class-wide basis. The court reserves ruling on the propriety of damages methodologies at this stage in the litigation, but is satisfied that common issues predominate for purposes of class certification.
As to superiority, the court reiterates its findings with regard to the overdetention claim, as the issues are largely similar. Here again, an individual class member’s interest in controlling a separate action against the defendants appears to be relatively low, and this is a proper forum for litigating all of the class members’ claims. This court’s discussion of the efficiency and fairness of class action litigation in Smith is particularly relevant because that case involved a blanket strip search policy. While manageability issues are more likely to arise in this context due to the issues involved in identifying class members, the court is not convinced that they will overwhelm or undermine the inherent advantages of class action litigation. See, e.g., Blihovde, 219 F.R.D at 622.
In light of the plaintiffs’ ability to satisfy all of the required elements, the court will 11

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certify a suspicionless strip search class pursuant to Rule 23(b)(3).
iii. Equal Protection Underwear Strip Search and Non-Private Strip Search Classes Both of these proposed classes would likely number in the hundreds of thousands, as they
would include nearly all male arrestees brought to CBIC during the proposed class period. (See Pls.’ Class Cert. Mem. at 26.) While common questions of law and fact likely predominate as to both claims, the manageability issues that will inevitably arise from certifying classes of such enormity seeking non-economic damages outweigh the potential benefits of certification. The plaintiffs acknowledge that the individual claims are small and, while the court agrees that class actions serve the purpose of aggregating these sorts of claims that otherwise may not be litigated individually, the court does not see the wisdom in certifying a class pursuant to Rule 23(b)(3) when the individual claims are small and the potential for manageability problems, including the provision of adequate notice, are particularly high. Further, the court notes that none of the named class representatives were charged with drugs, weapons, or violent felony offenses, whereas a substantial number, perhaps a majority, of the members of these proposed classes were charged with such crimes. While the privacy and equal protection rights are not controlled by the type of offense charged, nonetheless, such variation in circumstances between the named plaintiffs and the proposed class members raises concerns regarding the typicality and adequacy of representation requirements of Rule 23(a), while these requirements were easily satisfied by the more homogeneous overdetention and suspicionless strip search classes. Accordingly, the court will deny the plaintiffs’ motion to certify the equal protection underwear strip search class
12

Case 1:05-cv-01287-CCB Document 270 Filed 03/19/09 Page 13 of 13
and the non-private strip search class.8
CONCLUSION As discussed above, the court will grant the plaintiffs’ motion to certify the overdetention and suspicionless strip search classes pursuant to Rule 23(b)(3) and will deny the motion as to the equal protection underwear strip search and non-private strip search classes. The court reserves the right to revisit this decision if unforeseen problems arise making class certification with respect to liability or damages inappropriate. A separate order follows.9

March 19, 2009 Date

/s/ Catherine C. Blake United States District Judge

8Male members of the suspicionless strip search class may be able to prove they were subjected to non-private strip searches as an additional element of damages.
9The definitions in the Order are intended to address the technical issues identified by defendants; further refinement may be necessary.
13

 </s> 6/18/2017

District of Maryland (CM/ECF Live 6.1)

CASREF,CLOSED,STAYED

U.S. District Court District of Maryland (Baltimore) CIVIL DOCKET FOR CASE #: 1:05-cv-01287-CCB

West et al v. Murphy et al Assigned to: Judge Catherine C. Blake Case in other court: Fourth Circuit Court of Appeals, 13-02014 Cause: 42:1983 Civil Rights Act - Civil Action for Deprivation of Rights

Date Filed: 05/12/2005 Date Terminated: 06/16/2015 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Plaintiff
Eric Jones TERMINATED: 05/22/2013

represented by Eric Jones PO BOX 71 Harpers Ferry, WV 25425 PRO SE

Sean Robert Day Law Ofﬁce of Sean R Day 7474 Greenway Center Dr Ste 150 Greenbelt, MD 20770-3524 13012202270 Fax: 13012202441 Email: sean@dayincourt.net TERMINATED: 04/26/2013 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Barrett S Litt Kaye, McLane, Bednarski & Litt 234 East Colorado Boulevard Suite 230 Pasadena, CA 91101 16268447660 Fax: 16268447670 Email: jwhite@kmbllaw.com TERMINATED: 04/26/2013 PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
https://ecf.mdd.uscourts.gov/cgi-bin/DktRpt.pl?6948564535877-L_1_1-1

William Charles Claiborne , III Law Ofﬁces of William Claiborne 717 D St NW Ste 210 Washington, DC 20004 12028240700 Fax: 12028240745 Email: claibornelaw@gmail.com TERMINATED: 04/26/2013 ATTORNEY TO BE NOTICED
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Dana T. West Individually, and on behalf of all others similarly situated

District of Maryland (CM/ECF Live 6.1)
represented by Sean Robert Day (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Barrett S Litt (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Kevin Adams

William Charles Claiborne , III (See above for address) ATTORNEY TO BE NOTICED
represented by Sean Robert Day (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Tonia Bowie
Plaintiff David Colyns TERMINATED: 05/22/2013

William Charles Claiborne , III (See above for address) ATTORNEY TO BE NOTICED
represented by Sean Robert Day (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David Colyns 2119 Ramsay St Baltimore, MD 21223 PRO SE

Sean Robert Day (See above for address) TERMINATED: 04/26/2013 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Anthony Haig

represented by Sean Robert Day (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Gary Saunders

represented by Sean Robert Day (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

https://ecf.mdd.uscourts.gov/cgi-bin/DktRpt.pl?6948564535877-L_1_1-1

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Plaintiff Michael Washington
Plaintiff Aaron Ross

District of Maryland (CM/ECF Live 6.1)
represented by Sean Robert Day (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Sean Robert Day (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Susan Murphy Former Warden, Baltimore Central Booking and Intake Center, Individually and in her Ofﬁcial Capacity TERMINATED: 02/24/2015
https://ecf.mdd.uscourts.gov/cgi-bin/DktRpt.pl?6948564535877-L_1_1-1

represented by Alan D Eason State of Maryland Ofﬁce of the Attorney General Public Safety and Correctional Services 6776 Reisterstown Rd Ste 312 Baltimore, MD 21215 14105853070 Fax: 14107645366 Email: aeason@dpscs.state.md.us TERMINATED: 07/21/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karl Aram Pothier State of Maryland Ofﬁce of the Attorney General Department of Juvenile Services 120 West Fayette Street Baltimore, MD 21201 14102303135 Fax: 14102303143 Email: karl.pothier@maryland.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew John Fader Maryland Ofﬁce of the Attorney General 200 Saint Paul St Baltimore, MD 21202 14105767906 Fax: 14105766955 Email: mfader@oag.state.md.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Beverly F Hughes State of Maryland Ofﬁce of the Attorney General 300 East Joppa Road
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District of Maryland (CM/ECF L3iv0e 06.1E) ast Joppa Road
Suite 1000 Towson, MD 21286 4103397339 Fax: 14107645366 Email: beverly.hughes@maryland.gov ATTORNEY TO BE NOTICED

Consuelo Beatrice Nunez Bellamy Davis Wright Tremaine LLP 865 S. Figneroa St. Ste. 2400 Los Angeles, CA 90017 2136336800 Fax: 2136336899 Email: beatricenunezbellamy@dwt.com ATTORNEY TO BE NOTICED

David Reid Moore Howard County Ofﬁce of Law 3450 Court House Drive Ellicott City, MD 21043 14103133077 Fax: 14103133292 Email: dmoore@howardcountymd.gov TERMINATED: 07/21/2010 ATTORNEY TO BE NOTICED

Michael O Connor Doyle State of Maryland Ofﬁce of the Attorney General Department of Public Safety and Correctional Services 300 East Joppa Road Suite 1000 Towson, MD 21286 14103397567 Fax: 14103394243 Email: michaelo.doyle@maryland.gov ATTORNEY TO BE NOTICED

Defendant William Jednorski Former Warden, Baltimore Central Booking and Intake Center, Individually and in his Ofﬁcial Capacity
https://ecf.mdd.uscourts.gov/cgi-bin/DktRpt.pl?6948564535877-L_1_1-1

William F Brockman Maryland Ofﬁce of the Attorney General 200 Saint Paul Place, 20th Floor Baltimore, MD 21202 14105767055 Fax: 14105766955 Email: wbrockman@oag.state.md.us ATTORNEY TO BE NOTICED
represented by Alan D Eason (See above for address) TERMINATED: 07/21/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
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District of Maryland (CM/ECF Live 6.1)

Karl Aram Pothier (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew John Fader (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Beverly F Hughes (See above for address) ATTORNEY TO BE NOTICED

Consuelo Beatrice Nunez Bellamy (See above for address) ATTORNEY TO BE NOTICED

David Reid Moore (See above for address) TERMINATED: 07/21/2010 ATTORNEY TO BE NOTICED

Michael O Connor Doyle (See above for address) ATTORNEY TO BE NOTICED

Defendant City of Baltimore TERMINATED: 07/26/2005
Defendant Baltimore City Police Department TERMINATED: 01/04/2007

William F Brockman (See above for address) ATTORNEY TO BE NOTICED
represented by Kim Yvette Johnson PO Box 277 Cheltenham, MD 20623-0277 14438383614 Fax: 13017824686 Email: kimyjcounsel@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

https://ecf.mdd.uscourts.gov/cgi-bin/DktRpt.pl?6948564535877-L_1_1-1

Michael Francis Conti Ofﬁce of the Attorney General 300 W. Preston Street Suite 302 Baltimore, MD 21201 14107672085 Fax: 14103337894 Email: mconti@oag.state.md.us
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District of Maryland (CM/ECF LEivem6.a1i)l: mconti@oag.state.md.us
LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Mitchell Franks Warden, Baltimore Central Booking and Intake Center, Individually and in his Ofﬁcal Capacity TERMINATED: 04/25/2013

Joshua Neal Auerbach Ofﬁce of the Attorney General 300 West Preson Street Suite 302 Baltimore, MD 21201 14107671860 Fax: 14103337894 Email: jauerbach@oag.state.md.us TERMINATED: 01/16/2007 ATTORNEY TO BE NOTICED
represented by Alan D Eason (See above for address) TERMINATED: 07/21/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Karl Aram Pothier (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew John Fader (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Beverly F Hughes (See above for address) ATTORNEY TO BE NOTICED

David Reid Moore (See above for address) TERMINATED: 07/21/2010 ATTORNEY TO BE NOTICED

Michael O Connor Doyle (See above for address) ATTORNEY TO BE NOTICED

Defendant
Mayor and City Council Of Baltimore TERMINATED: 01/04/2007

William F Brockman (See above for address) ATTORNEY TO BE NOTICED
represented by Joshua Neal Auerbach (See above for address) TERMINATED: 01/16/2007 LEAD ATTORNEY

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Defendant Susan Murphy

District of Maryland (CM/ECF Live 6.1)
Michael Francis Conti (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed

# Docket Text

05/12/2005

1 COMPLAINT against Susan Murphy, William Jednorski, City of Baltimore, Baltimore City Police Department ( Filing fee $ 250 receipt number 14637002038.), ﬁled by Eric Jones, Dana T. West. (Attachments: # 1 Civil Cover Sheet)(raf, Deputy Clerk) (Entered: 05/12/2005)

05/12/2005

Jury Trial Demand by Eric Jones, Dana T. West. (raf, Deputy Clerk) (Entered: 05/12/2005)

05/12/2005

2 Summons Issued 20 days as to Susan Murphy, William Jednorski, City of Baltimore, Baltimore City Police Department. (raf, Deputy Clerk) (Entered: 05/12/2005)

07/26/2005

3 MOTION for Other Relief to Add Defendant by Eric Jones. Responses due by 8/12/2005 (Day, Sean) (Entered: 07/26/2005)

07/26/2005

4 AMENDED COMPLAINT against all defendants, ﬁled by Eric Jones.(Day, Sean) (FILED IN ERROR - WILL REFILE WITH REDLINED VERSION ATTACHED ATTY. NOTIFIED) Modiﬁed on 7/26/2005 (mcb, Deputy Clerk). (Entered: 07/26/2005)

07/26/2005

5 AMENDED COMPLAINT and Jury Demand against all defendants, ﬁled by Eric Jones, Dana T. West. (Attachments: # 1 Appendix First Amended Complaint (Redline Version)) (Day, Sean) Modiﬁed on 7/26/2005 (mcb, Deputy Clerk). (Entered: 07/26/2005)

07/29/2005

6 Summons Issued 20 days as to Mitchell Franks. (c/m 7/29/05 mcb, Deputy Clerk) (Entered: 07/29/2005)

08/01/2005

7 Summons Issued 20 days as to Mayor and City Council Of Baltimore. (c/m 8/1/05 mcb, Deputy Clerk) (Entered: 08/01/2005)

08/15/2005

8 SUMMONS Returned Executed by Eric Jones, Dana T. West. Mitchell Franks served on 8/11/2005, answer due 8/31/2005; Mayor and City Council Of Baltimore served on 8/11/2005, answer due 8/31/2005; Baltimore City Police Department served on 8/11/2005, answer due 8/31/2005. (mcb, Deputy Clerk) (Entered: 08/15/2005)

08/18/2005

9 MOTION for William Charles Claiborne III to Appear Pro Hac Vice by Eric Jones, Dana T. West. (jlb, Deputy Clerk) (Entered: 08/18/2005)

08/18/2005

10 MARGINAL ORDER granting 9 Motion of Plaintiff for William Charles Claiborne III to Appear Pro Hac Vice. Signed by Clerk on 8/18/05. (FEE PAID RECEIPT #84637002451) (FOR PLEADING #10 SEE #9) (jlb, Deputy Clerk) (Entered: 08/18/2005)

08/22/2005

11 AFFIDAVIT of Service for Summons, Amended Complaint, and Other Filings served on William Jednorski on 08/17/05, ﬁled by Eric Jones, Dana T. West. (Day, Sean) (Entered: 08/22/2005)

08/26/2005

12 MOTION for Extension of Time by Mitchell Franks. Responses due by 9/12/2005 (Pothier, Karl) (Entered: 08/26/2005)

08/29/2005 13 PAPERLESS ORDER Granting 12 Unopposed Motion for Extension of Time until

https://ecf.mdd.uscourts.gov/cgi-bin/DktRpt.pl?6948564535877-L_1_1-1

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08/31/2005 09/01/2005 09/08/2005 09/08/2005
09/19/2005
09/19/2005 09/26/2005 09/26/2005 09/30/2005 09/30/2005
09/30/2005 10/07/2005
10/11/2005 10/17/2005

District of Maryland (CM/ECF Live 6.1)
September 30, 2005 to respond to Complaint. Signed by Judge Catherine C. Blake on August 29, 2005. (Blake, Catherine) (Entered: 08/29/2005)
14 MOTION to Dismiss by Mayor and City Council Of Baltimore, Baltimore City Police Department. Responses due by 9/19/2005 (Attachments: # 1 Memo in Support# 2 Exhibit # 3 Text of Proposed Order)(Auerbach, Joshua) (Entered: 08/31/2005)
15 NOTICE of Appearance by Kim Yvette Johnson on behalf of Baltimore City Police Department (Johnson, Kim) (Entered: 09/01/2005)
16 MOTION for Extension of Time by Susan Murphy, William Jednorski. Responses due by 9/26/2005 (Pothier, Karl) (Entered: 09/08/2005)
17 PAPERLESS ORDER Granting 16 Motion for Extension of Time until September 30, 2005 for defendants to ﬁle a pleading or motion responsive to the First Amended Complaint. Signed by Judge Catherine C. Blake on September 8, 2005. (Blake, Catherine) (Entered: 09/08/2005)
18 RESPONSE in Opposition re 14 MOTION to Dismiss of Baltimore City ﬁled by Eric Jones, Dana T. West. Replies due by 10/3/2005. (Attachments: # 1 Exhibit List of Exhibits# 2 Exhibit 1# 3 Exhibit 2# 4 Exhibit 3# 5 Exhibit 4# 6 Exhibit 5# 7 Exhibit 6# 8 Appendix Cases Not Generally Reported# 9 Appendix Case 1# 10 Appendix Case 2# 11 Appendix Case 3)(Day, Sean) (Entered: 09/19/2005)
19 MOTION for Other Relief for Judicial Notice by Eric Jones, Dana T. West. Responses due by 10/6/2005 (Day, Sean) (Entered: 09/19/2005)
20 MOTION for Barrett S. Litt to Appear Pro Hac Vice by Eric Jones, Dana T. West. (mcb, Deputy Clerk) (Entered: 09/27/2005)
21 MARGINAL ORDER granting 20 Motion of Plaintiffs for Barrett S. Litt to Appear Pro Hac Vice (Fee paid Receipt #14637004581 - for Document #21 see #20). Signed by Clerk on 9/26/05. (mcb, Deputy Clerk) (Entered: 09/27/2005)
22 MOTION for Extension of Time by Mitchell Franks, Susan Murphy, William Jednorski. Responses due by 10/17/2005 (Pothier, Karl) (Entered: 09/30/2005)
23 PAPERLESS ORDER Granting 22 Unopposed Motion for Extension of Time until October 7, 2005 for Defendants Franks, Jednorski and Murphy to ﬁle a responsive pleading to the First Amended Complaint. Signed by Judge Catherine C. Blake on September 30, 2005. (Blake, Catherine) (Entered: 09/30/2005)
24 REPLY to Response to Motion re 14 MOTION to Dismiss ﬁled by Mayor and City Council Of Baltimore, Baltimore City Police Department. (Auerbach, Joshua) (Entered: 09/30/2005)
25 MOTION to Dismiss or, in the Alternative, MOTION for Summary Judgment by Mitchell Franks, Susan Murphy, William Jednorski. Responses due by 10/24/2005 Responses due by 10/24/2005 (Attachments: # 1 Memoranum of Law in Support of Motion to Dismiss or, in the Alternative, Motion for Summary Judgment# 2 Exhibit Exhibit 1 to Memorandum of Law# 3 Exhibit Exhibit 2 to Memorandum of Law)(Pothier, Karl) (Entered: 10/07/2005)
26 MOTION for Other Relief to File Sur-Reply by Eric Jones, Dana T. West. Responses due by 10/28/2005 (Attachments: # 1 Sur-Reply)(Day, Sean) (Entered: 10/11/2005)
27 RESPONSE in Opposition re 26 MOTION for Other Relief to File Sur-Reply ﬁled by Mayor and City Council Of Baltimore, Baltimore City Police Department. Replies due by 10/31/2005. (Auerbach, Joshua) (Entered: 10/17/2005)

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10/20/2005

District of Maryland (CM/ECF Live 6.1)
28 Consent MOTION for Extension of Time to File Response/Reply as to 25 MOTION to Dismiss or, in the Alternative MOTION for Summary Judgment MOTION to Dismiss or, in the Alternative MOTION for Summary Judgment by Eric Jones, Dana T. West. Responses due by 11/7/2005 (Day, Sean) (Entered: 10/20/2005)

10/21/2005

29 PAPERLESS ORDER granting 28 Consent Motion for Extension of Time to File Response re 25 MOTION to Dismiss,or in the Alternative MOTION for Summary Judgment Responses due by 11/14/2005. Signed by Judge Catherine C. Blake on 10/21/05. (Blake, Catherine) (Entered: 10/21/2005)

10/21/2005

30 ORDER denying 26 Motion of Plaintiffs for Leave to File Sur-Reply. Signed by Judge Catherine C. Blake on 10/21/05. (mcb, Deputy Clerk) (Entered: 10/21/2005)

11/05/2005

31 Consent MOTION for Extension of Time to File Response/Reply as to 25 MOTION to Dismiss or, in the Alternative MOTION for Summary Judgment MOTION for Summary Judgment by Eric Jones, Dana T. West. Responses due by 11/22/2005 (Day, Sean) (Entered: 11/05/2005)

11/07/2005

32 PAPERLESS ORDER Granting 31 Consent Motion for Extension of Time to File Response re 25 Motion to Dismiss or, in the Alternative Motion for Summary Judgment. Responses due by 11/30/2005. Signed by Judge Catherine C. Blake on November 7, 2005. (Blake, Catherine) (Entered: 11/07/2005)

11/30/2005

33 MOTION to Amend/Correct 5 Amended Complaint to Intervene, and Add Plaintiffs by Eric Jones, Dana T. West. Responses due by 12/19/2005 (Attachments: # 1 Exhibit Second Amended Complaint (Redlined)# 2 Exhibit Second Amended Complaint)(Day, Sean) (Entered: 11/30/2005)

11/30/2005

34 RESPONSE in Opposition re 25 MOTION to Dismiss or, in the Alternative MOTION for Summary Judgment MOTION for Summary Judgment (Opposition to Motion to Dismiss) ﬁled by Eric Jones, Dana T. West. Replies due by 12/14/2005. (Day, Sean) (Entered: 11/30/2005)

11/30/2005

35 MOTION for Extension of Time to Complete Discovery per Rule 56(f) by Eric Jones. Responses due by 12/19/2005 (Attachments: # 1 Exhibit memorandum of law# 2 Exhibit Plaintiffs' exhibit list# 3 Exhibit exhibit 1# 4 Exhibit Exhibit 2# 5 Exhibit Exhibit 3# 6 Exhibit Exhibit 4# 7 Exhibit Exhibit 5# 8 Exhibit Exhibit 6# 9 Exhibit Exhibit 7# 10 Exhibit Exhibit 8# 11 Exhibit Exhibit 9# 12 Exhibit Exhibit 10# 13 Exhibit Exhibit 11# 14 Exhibit Exhibit 12# 15 Exhibit Exhibit 13# 16 Exhibit Exhibit 14# 17 Exhibit Exhibit 15# 18 Exhibit Exhibit 16# 19 Exhibit Exhibit 17# 20 Exhibit Exhibit 18# 21 Exhibit Exhibit 19# 22 Exhibit Exhibit 19# 23 Exhibit Exhibit 21# 24 Exhibit Exhibit 22# 25 Exhibit Exhibit 23# 26 Exhibit Exhibit 39# 27 Exhibit Exhibit 40# 28 Exhibit Exhibit 41# 29 Exhibit Exhibit 42# 30 Exhibit Exhibit 54# 31 Exhibit Exhibit 55# 32 Exhibit Exhibit 74# 33 Exhibit Exhibit 75# 34 Exhibit Exhibit 76# 35 Exhibit Exhibit 77# 36 Exhibit Exhibit 88# 37 Exhibit Exhibit 89# 38 Exhibit Exhibit 90# 39 Exhibit Exhibit 91# 40 Exhibit Exhibit 92# 41 Exhibit Exhibit 95# 42 Exhibit Exhibit 96# 43 Exhibit Exhibit 97) (Claiborne, William) (Entered: 11/30/2005)

12/07/2005

36 RESPONSE in Opposition re 33 MOTION to Amend/Correct 5 Amended Complaint to Intervene, and Add Plaintiffs ﬁled by Mayor and City Council Of Baltimore, Baltimore City Police Department. Replies due by 12/21/2005. (Auerbach, Joshua) (Entered: 12/07/2005)

12/12/2005

37 MOTION for Extension of Time by Mitchell Franks, Susan Murphy, William Jednorski. Responses due by 12/29/2005 (Attachments: # 1 Text of Proposed Order)(Pothier, Karl) (Entered: 12/12/2005)

12/13/2005 38 PAPERLESS ORDER Granting 37 Unopposed Motion for Extension of Time until

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12/21/2005 12/29/2005 12/29/2005
01/10/2006
01/10/2006 01/10/2006 01/11/2006 01/17/2006 01/19/2006 01/23/2006 01/23/2006 02/16/2006
02/27/2006 03/17/2006

District of Maryland (CM/ECF Live 6.1)
January 6, 2006 to respond to papers ﬁled by plaintiffs on November 30, 2005. Signed by Judge Catherine C. Blake on December 13, 2005. (Blake, Catherine) (Entered: 12/13/2005)
39 REPLY to Response to Motion re 33 MOTION to Amend/Correct 5 Amended Complaint to Intervene, and Add Plaintiffs ﬁled by Eric Jones, Dana T. West. (Day, Sean) (Entered: 12/21/2005)
40 MOTION for Extension of Time by Mitchell Franks, Susan Murphy, William Jednorski. Responses due by 1/16/2006 (Pothier, Karl) (Entered: 12/29/2005)
41 PAPERLESS ORDER Granting 40 Unopposed Motion for Extension of Time until January 10, 2006 to respond to papers ﬁled by plaintiffs on November 30, 2005. Signed by Judge Catherine C. Blake on December 29, 2005. (Blake, Catherine) (Entered: 12/29/2005)
42 REPLY to Response to Motion re 25 MOTION to Dismiss or, in the Alternative MOTION for Summary Judgment MOTION for Summary Judgment Memorandum in Reply to Plaintiffs' Opposition to Defendant Wardens' Motion to Dismiss ﬁled by Mitchell Franks, Susan Murphy, William Jednorski. (Pothier, Karl) (Entered: 01/10/2006)
43 RESPONSE in Opposition re 35 MOTION for Extension of Time to Complete Discovery per Rule 56(f) ﬁled by Mitchell Franks, Susan Murphy, William Jednorski. Replies due by 1/24/2006. (Pothier, Karl) (Entered: 01/10/2006)
44 Consent MOTION for Extension of Time by Mitchell Franks, Susan Murphy, William Jednorski. Responses due by 1/27/2006 (Attachments: # 1 Text of Proposed Order Proposed Order)(Pothier, Karl) (Entered: 01/10/2006)
45 RESPONSE in Opposition re 33 MOTION to Amend/Correct 5 Amended Complaint to Intervene, and Add Plaintiffs ﬁled by Mitchell Franks, Susan Murphy, William Jednorski. Replies due by 1/25/2006. (Pothier, Karl) (Entered: 01/11/2006)
46 PAPERLESS ORDER Granting 44 Joint Motion for Extension of Time until January 11, 2006. Signed by Judge Catherine C. Blake on January 17, 2006. (Blake, Catherine) (Entered: 01/17/2006)
47 Miscellaneous Correspondence scheduling a hearing on all pending motions. (Blake, Catherine) (Entered: 01/19/2006)
48 REPLY to Response to Motion re 35 MOTION for Extension of Time to Complete Discovery per Rule 56(f) (Reply to Wardens' Opposition) ﬁled by Eric Jones, Dana T. West. (Day, Sean) (Entered: 01/23/2006)
49 REPLY to Response to Motion re 33 MOTION to Amend/Correct 5 Amended Complaint to Intervene, and Add Plaintiffs (Reply to Wardens' Opposition) ﬁled by Eric Jones, Dana T. West. (Day, Sean) (Entered: 01/23/2006)
Motion Hearing held on 2/16/2006 re 14 MOTION to Dismiss ﬁled by Baltimore City Police Department,, Mayor and City Council Of Baltimore,, 25 MOTION to Dismiss or, in the Alternative MOTION for Summary Judgment MOTION for Summary Judgment ﬁled by William Jednorski,, Mitchell Franks,, Susan Murphy, before Judge Catherine C. Blake. Argument of Counsel. Ruling by Court held sub-curia. (Court Reporter: Gail Simpkins) (kam, Deputy Clerk) (Entered: 02/22/2006)
50 Correspondence re: state court litigation (Auerbach, Joshua) (Entered: 02/27/2006)
51 MOTION to Amend/Correct for Leave to File Third Amended Complaint by Eric Jones, Dana T. West. Responses due by 4/3/2006 (Attachments: # 1 Exhibit Third Amended

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03/24/2006 04/03/2006 04/10/2006
04/10/2006
05/12/2006 05/12/2006 05/12/2006 05/25/2006 05/26/2006 05/26/2006 06/08/2006

District of Maryland (CM/ECF Live 6.1)
Complaint (Redlined)# 2 Exhibit Table of Contents for Third Amended Complaint# 3 Exhibit Third Amended Complaint (Clean))(Day, Sean) (Entered: 03/17/2006)
52 RESPONSE in Opposition re 51 MOTION to Amend/Correct for Leave to File Third Amended Complaint ﬁled by Mayor and City Council Of Baltimore, Baltimore City Police Department. Replies due by 4/7/2006. (Auerbach, Joshua) (Entered: 03/24/2006)
53 RESPONSE to Motion re 51 MOTION to Amend/Correct for Leave to File Third Amended Complaint ﬁled by Mitchell Franks, Susan Murphy, William Jednorski. Replies due by 4/17/2006. (Pothier, Karl) (Entered: 04/03/2006)
54 ORDER denying as MOOT 33 Motion of Plaintiffs to ﬁle a Second Amended Complaint, denying without Prejudice 35 Motion of Plaintiffs for Extension of Time to Complete Discovery, granting 51 Motion of Plaintiffs for Leave to File Third Amended Complaint, denying as MOOT 14 Motion of Defendants to Dismiss or for Summary Judgment, granting 19 Motion of Plaintiffs for Judicial Notice, denying as MOOT 25 Motion of Defendants to Dismiss or for Summary Judgment. Defendants may have until May 12, 2006 to ﬁle an Answer or Motion under Rule 12 and/or 56. Signed by Judge Catherine C. Blake on 4/10/06. (mcb, Deputy Clerk) (Entered: 04/10/2006)
55 THIRD AMENDED COMPLAINT for Money Damages, Injunctive Relief, and Preliminary Injunction, with Jury Demand against Mitchell Franks, Mayor and City Council Of Baltimore, Susan Murphy, William Jednorski, Baltimore City Police Department, ﬁled by Kevin Adams, Tonia Bowie, David Colyns, Anthony Haig, Gary Saunders, Michael Washington, Eric Jones, Dana T. West. (Attachments: # 1 Redlined version of Amended Complaint)(mcb, Deputy Clerk) (Entered: 04/10/2006)
56 Consent MOTION for Extension of Time by Mitchell Franks, Susan Murphy, William Jednorski. Responses due by 5/30/2006 (Attachments: # 1 Text of Proposed Order) (Pothier, Karl) (Entered: 05/12/2006)
57 PAPERLESS ORDER Granting 56 Unopposed Motion for Extension of Time until May 26, 2006 for the defendants to respond to the Third Amended Complaint. Signed by Judge Catherine C. Blake on May 12, 2006. (Blake, Catherine) (Entered: 05/12/2006)
58 MOTION to Dismiss Third Amended Complaint by Mayor and City Council Of Baltimore, Baltimore City Police Department. Responses due by 5/30/2006 (Attachments: # 1 Memorandum in Support of Motion# 2 Text of Proposed Order)(Auerbach, Joshua) (Entered: 05/12/2006)
59 Consent MOTION for Extension of Time to File Response/Reply as to 58 MOTION to Dismiss Third Amended Complaint by Kevin Adams, Tonia Bowie, David Colyns, Anthony Haig, Gary Saunders, Michael Washington, Eric Jones, Dana T. West. Responses due by 6/12/2006 (Day, Sean) (Entered: 05/25/2006)
60 PAPERLESS ORDER Granting 59 Consent Motion for Extension of Time to File Response re 58 Motion to Dismiss Third Amended Complaint. Responses due by 6/14/2006. Signed by Judge Catherine C. Blake on May 26, 2006. (Blake, Catherine) (Entered: 05/26/2006)
61 MOTION to Dismiss or, in the Alternative, Motion for Summary Judgment by Mitchell Franks, Susan Murphy, William Jednorski. Responses due by 6/12/2006 (Attachments: # 1 Memorandum of Law in Support of Motion to Dismiss or, in the Alternative, Motion for Summary Judgment# 2 Exhibit Exhibit 1 to Memorandum of Law)(Pothier, Karl) (Entered: 05/26/2006)
62 Consent MOTION for Extension of Time to File Response/Reply as to 61 MOTION to Dismiss or, in the Alternative, Motion for Summary Judgment by Kevin Adams, Tonia

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District of Maryland (CM/ECF Live 6.1)
Bowie, David Colyns, Anthony Haig, Gary Saunders, Michael Washington, Eric Jones, Dana T. West. Responses due by 6/26/2006 (Day, Sean) (Entered: 06/08/2006)

06/09/2006

63 PAPERLESS ORDER Granting 62 Consent Motion for Extension of Time to File Response re 61 Motion to Dismiss or, in the Alternative, Motion for Summary Judgment. Responses due by JULY 7, 2006. Signed by Judge Catherine C. Blake on June 9, 2006. (Blake, Catherine) (Entered: 06/09/2006)

06/12/2006

64 RESPONSE in Opposition re 58 MOTION to Dismiss Third Amended Complaint ﬁled by Kevin Adams, Tonia Bowie, David Colyns, Anthony Haig, Gary Saunders, Michael Washington, Eric Jones, Dana T. West. Replies due by 6/26/2006. (Attachments: # 1 Appendix Table of Contents)(Day, Sean) (Entered: 06/12/2006)

06/21/2006

65 REPLY to Response to Motion re 58 MOTION to Dismiss Third Amended Complaint ﬁled by Mayor and City Council Of Baltimore, Baltimore City Police Department. (Auerbach, Joshua) (Entered: 06/21/2006)

07/03/2006

66 RESPONSE in Opposition re 61 MOTION to Dismiss or, in the Alternative, Motion for Summary Judgment ﬁled by Kevin Adams, Tonia Bowie, David Colyns, Anthony Haig, Gary Saunders, Michael Washington, Eric Jones, Dana T. West. Replies due by 7/17/2006. (Attachments: # 1 Table of Contents)(Day, Sean) (Entered: 07/03/2006)

07/03/2006

67 MOTION to Deny Defendant Wardens' Motion for Summary Judgment, or in the Alternative, Motion for Continuance to Permit Discovery, Memorandum in Support, by Kevin Adams, Tonia Bowie, David Colyns, Anthony Haig, Gary Saunders, Michael Washington, Eric Jones, Dana T. West. Responses due by 7/20/2006 (Attachments: # 1 Table of Contents# 2 Supplemental Exhibit List# 3 Exhibit 24# 4 Exhibit 25# 5 Exhibit 98# 6 Exhibit 99# 7 Exhibit 100)(Day, Sean) Modiﬁed on 7/5/2006 (mcb, Deputy Clerk). (Entered: 07/03/2006)

07/16/2006

68 Consent MOTION for Extension of Time by Mitchell Franks, Susan Murphy, William Jednorski. Responses due by 8/2/2006 (Attachments: # 1 Text of Proposed Order) (Pothier, Karl) (Entered: 07/16/2006)

07/17/2006

69 PAPERLESS ORDER Granting 68 Consent Motion for Extension of Time until July 27, 2006 to File Responses to papers submitted by Plaintiffs on July 3, 2006. Signed by Judge Catherine C. Blake on July 17, 2006. (Blake, Catherine) (Entered: 07/17/2006)

07/27/2006

70 RESPONSE re 66 Response in Opposition to Motion, Reply to Plaintiffs' Opposition to Motion to Dismiss ﬁled by Mitchell Franks, Susan Murphy, William Jednorski. (Pothier, Karl) (Entered: 07/27/2006)

07/27/2006

71 RESPONSE in Opposition re 67 MOTION for Other Relief Rule 56(f) Motion and Memorandum Opposition to Alternative Motions to Deny Motion for Summary Judgment or for Continuance to Permit Discovery ﬁled by Mitchell Franks, Susan Murphy, William Jednorski. Replies due by 8/10/2006. (Pothier, Karl) (Entered: 07/27/2006)

08/10/2006

72 REPLY to Response to Motion re 67 MOTION for Other Relief Rule 56(f) Motion and Memorandum ﬁled by Kevin Adams, Tonia Bowie, David Colyns, Anthony Haig, Gary Saunders, Michael Washington, Eric Jones, Dana T. West. (Day, Sean) (Entered: 08/10/2006)

09/11/2006

73 ORDER DIRECTING each party to submit a Status Report on pending motions and issues in both cases and any suggestions counsel may have for a coordinated schedule no later than 9/25/06. Signed by Judge Catherine C. Blake on 9/12/06. Associated Cases: 1:06-cv-01863-CCB, 1:05-cv-01287-CCB(mcb, Deputy Clerk) (Entered: 09/11/2006)

09/13/2006

74 (FILED IN ERROR SHOULD BE FILED IN CCB-06-1863) RESPONSE in Opposition re (20 in 1:06-cv-01863-CCB) MOTION to Dismiss or in the Alternative Motion for

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09/20/2006
09/21/2006
09/25/2006 09/25/2006 09/25/2006
09/25/2006 10/03/2006 11/27/2006 11/29/2006 12/01/2006 12/04/2006 12/14/2006 12/14/2006 12/14/2006

District of Maryland (CM/ECF Live 6.1)
Summary Judgment ﬁled by Maryland State Conference of NAACP Branches, Baltimore City Branch of the NAACP, Evan Howard, Tyrone Braxton, Donald Wilson, Robert Lowery, Aaron Stoner.Replies due by 9/27/2006. (Attachments: # 1 Afﬁdavit Afﬁdavit of Donald Wilson# 2 Afﬁdavit Afﬁdavit of Tyrone Braxton# 3 Afﬁdavit Afﬁdavit of Evan Howard# 4 Afﬁdavit Afﬁdavit of Aaron Stoner# 5 Afﬁdavit Afﬁdavit of Jason Morrow)Associated Cases: 1:06-cv-01863-CCB, 1:05-cv-01287-CCB(Morrow, Jason) Modiﬁed on 9/15/2006 (jlb, Deputy Clerk). (Entered: 09/13/2006)
75 NOTICE by Kevin Adams, Tonia Bowie, David Colyns, Anthony Haig, Gary Saunders, Michael Washington, Eric Jones, Dana T. West re (64 in 1:05-cv-01287-CCB) Response in Opposition to Motion, of New Relevant Authority Associated Cases: 1:05-cv-01287CCB, 1:06-cv-01863-CCB(Day, Sean) (Entered: 09/20/2006)
76 RESPONSE re (75 in 1:05-cv-01287-CCB, 49 in 1:06-cv-01863-CCB) Notice (Other), Notice (Other) ﬁled by Mayor and City Council Of Baltimore, Baltimore City Police Department. Associated Cases: 1:05-cv-01287-CCB, 1:06-cv-01863-CCB(Auerbach, Joshua) (Entered: 09/21/2006)
77 STATUS REPORT by Mitchell Franks. (Attachments: # 1 Exhibit 1# 2 Exhibit 2)Associated Cases: 1:06-cv-01863-CCB, 1:05-cv-01287-CCB(Brockman, William) (Entered: 09/25/2006)
78 STATUS REPORT by Mayor and City Council Of Baltimore, Baltimore City Police Department, Mayor and City Council of the City of Baltimore. Associated Cases: 1:06cv-01863-CCB, 1:05-cv-01287-CCB(Auerbach, Joshua) (Entered: 09/25/2006)
79 STATUS REPORT by Maryland State Conference of NAACP Branches, Baltimore City Branch of the NAACP, Evan Howard, Tyrone Braxton, Donald Wilson, Robert Lowery, Aaron Stoner. Associated Cases: 1:06-cv-01863-CCB, 1:05-cv-01287-CCB(Morrow, Jason) (Entered: 09/25/2006)
80 STATUS REPORT by Eric Jones. (Claiborne, William) Modiﬁed on 9/26/2006 (mcb, Deputy Clerk). (Entered: 09/25/2006)
81 STATUS REPORT per Rule 26(f) by Kevin Adams, Tonia Bowie, David Colyns, Anthony Haig, Gary Saunders, Michael Washington, Eric Jones, Dana T. West. (Day, Sean) (Entered: 10/03/2006)
82 NOTICE by Kevin Adams, Tonia Bowie, David Colyns, Anthony Haig, Gary Saunders, Michael Washington, Eric Jones, Dana T. West re 64 Response in Opposition to Motion, Notice (Second) of New Relevant Authority (Day, Sean) (Entered: 11/27/2006)
83 RESPONSE re 82 Notice (Other) ﬁled by Mayor and City Council Of Baltimore, Baltimore City Police Department. (Auerbach, Joshua) (Entered: 11/29/2006)
84 ORDER SCHEDULING Status Conference. Signed by Judge Catherine C. Blake on 12/1/06. Associated Cases: 1:06-cv-01863-CCB, 1:05-cv-01287-CCB(jlb, Deputy Clerk) (Entered: 12/01/2006)
85 NOTICE by Eric Jones re 82 Notice (Other), 83 Response (Claiborne, William) (Entered: 12/04/2006)
86 NOTICE by Eric Jones re 84 Order to submit proposed discovery order (Claiborne, William) (Entered: 12/14/2006)
87 Correspondence re: proposed schedule for document discovery Associated Cases: 1:06cv-01863-CCB, 1:05-cv-01287-CCB(Auerbach, Joshua) (Entered: 12/14/2006)
88 RESPONSE re (84 in 1:05-cv-01287-CCB) Order to Submit Proposed Discovery

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District of Maryland (CM/ECF Live 6.1)
Schedule ﬁled by Mitchell Franks, Mitchell Franks. Associated Cases: 1:06-cv-01863CCB, 1:05-cv-01287-CCB(Brockman, William) (Entered: 12/14/2006)

12/15/2006 89 NOTICE by Eric Jones change of ﬁrm name (Claiborne, William) (Entered: 12/15/2006)

12/18/2006

Status Conference held on 12/18/2006 held before Judge Catherine C. Blake. (Court Reporter Gail Simpkins.) (rhl, Deputy Clerk) (Entered: 12/18/2006)

12/20/2006

90 ORDER RE: Discovery; Status Reports are Due 1/18/07 and Scheduling Conference Call. Signed by Judge Catherine C. Blake on 12/19/06. Associated Cases: 1:06-cv-01863-CCB, 1:05-cv-01287-CCB(jlb, Deputy Clerk) (Entered: 12/21/2006)

12/22/2006

91 NOTICE by Eric Jones of Lead Counsel Associated Cases: 1:05-cv-01287-CCB, 1:06-cv01863-CCB(Day, Sean) (Entered: 12/22/2006)

01/04/2007

92 MEMORANDUM. Signed by Judge Catherine C. Blake on 1/4/07. (mcb, Deputy Clerk) (Entered: 01/05/2007)

01/04/2007

93 ORDER granting 58 Motion of City Defendants to Dismiss; granting in part and denying in part 61 Motion of State Defendants to Dismiss; denying without Prejudice 61 Motion of State Defendants for Summary Judgment. Signed by Judge Catherine C. Blake on 1/4/07. (mcb, Deputy Clerk) (Entered: 01/05/2007)

01/12/2007

94 MOTION to Withdraw as Attorney. Responses due by 1/29/2007 (Auerbach, Joshua) (Entered: 01/12/2007)

01/16/2007

95 PAPERLESS ORDER granting 94 Motion to Withdraw as Attorney. Attorney Joshua Neal Auerbach terminated. Per Judge Catherine C. Blake on 1/16/07. (hml, Deputy Clerk) (Entered: 01/16/2007)

01/18/2007

96 STATUS REPORT Regarding Discovery by State Of Maryland. Associated Cases: 1:06cv-01863-CCB, 1:05-cv-01287-CCB(Brockman, William) (Entered: 01/18/2007)

01/18/2007

97 STATUS REPORT by Baltimore City Police Department, Mayor and City Council of the City of Baltimore, Martin O O'Malley, Leonard Hamm, Marcus Brown, Kevin Clark, Edward T. Norris, Jemini Jones, David A. Crites, Jr, Sgt. Pecha, B. Newkirk, Arnold Jones. Associated Cases: 1:06-cv-01863-CCB, 1:05-cv-01287-CCB(Hornig, Karen) (Entered: 01/18/2007)

01/18/2007

98 STATUS REPORT by Maryland State Conference of NAACP Branches, Baltimore City Branch of the NAACP, Evan Howard, Tyrone Braxton, Donald Wilson, Robert Lowery, Aaron Stoner. Associated Cases: 1:06-cv-01863-CCB, 1:05-cv-01287-CCB(Morrow, Jason) (Entered: 01/18/2007)

01/18/2007

99 NOTICE by Eric Jones re (90 in 1:05-cv-01287-CCB) Order of Database Discovery Status Report required by Court's 12/20/06 Order Associated Cases: 1:05-cv-01287-CCB, 1:06-cv-01863-CCB(Claiborne, William) (Entered: 01/18/2007)

01/19/2007

100 TRANSCRIPT of Proceedings held on December 18, 2006 before Judge Catherine C. Blake. Court Reporter: Gail Simpkins. (FILED SEPARATELY) Associated Cases: 1:06cv-01863-CCB, 1:05-cv-01287-CCB(jlb, Deputy Clerk) (Entered: 01/19/2007)

01/22/2007

101 Consent MOTION for Extension of Time by Mitchell Franks, Susan Murphy, William Jednorski. Responses due by 2/8/2007 (Attachments: # 1 Text of Proposed Order) (Pothier, Karl) (Entered: 01/22/2007)

01/23/2007

102 PAPERLESS ORDER Granting 101 Consent Motion for Extension of Time until February 21, 2007 for defendants Franks, Jednorski, and Murphy to respond to the Third Amended Complaint. Signed by Judge Catherine C. Blake on January 23, 2007. (Blake, Catherine) (Entered: 01/23/2007)

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District of Maryland (CM/ECF Live 6.1)

02/04/2007

103 Consent MOTION to Continue database discovery deadlines by Eric Jones. Responses due by 2/21/2007 (Attachments: # 1 Text of Proposed Order)Associated Cases: 1:05-cv01287-CCB, 1:06-cv-01863-CCB(Claiborne, William) (Entered: 02/04/2007)

02/05/2007

104 ORDER granting (103) Motion to Continue in case 1:05-cv-01287-CCB; granting (78) Motion to Continue in case 1:06-cv-01863-CCB. Status Reports due 2/20/07 and Telephone Conference set for 2/22/07 @ 4:30 p.m. Signed by Judge Catherine C. Blake on 2/5/07. (hml, Deputy Clerk) (Entered: 02/05/2007)

02/19/2007

105 JOINT Status Report by Eric Jones re (104 in 1:05-cv-01287-CCB) Order on Motion to Continue, status report on database discovery Associated Cases: 1:05-cv-01287-CCB, 1:06-cv-01863-CCB(Claiborne, William) Modiﬁed on 2/20/2007 (mcb, Deputy Clerk). (Entered: 02/19/2007)

02/20/2007

106 Status Report Submitted by Baltimore City Police Department, Mayor and City Council of the City of Baltimore, Martin O O'Malley, Leonard Hamm, Marcus Brown, Kevin Clark, Edward T. Norris, David A. Crites, Jr, Sgt. Pecha, B. Newkirk, Arnold Jones Associated Cases: 1:06-cv-01863-CCB, 1:05-cv-01287-CCB(Hornig, Karen) (Entered: 02/20/2007)

02/20/2007

107 Status Report Submitted by Maryland State Conference of NAACP Branches, Baltimore City Branch of the NAACP, Evan Howard, Tyrone Braxton, Donald Wilson, Robert Lowery, Aaron Stoner Associated Cases: 1:06-cv-01863-CCB, 1:05-cv-01287CCB(Morrow, Jason) (Entered: 02/20/2007)

02/20/2007

108 MOTION for Extension of Time to Complete Discovery by Maryland State Conference of NAACP Branches, Baltimore City Branch of the NAACP, Evan Howard, Tyrone Braxton, Donald Wilson, Robert Lowery, Aaron Stoner. Responses due by 3/9/2007 Associated Cases: 1:06-cv-01863-CCB, 1:05-cv-01287-CCB(Morrow, Jason) (Entered: 02/20/2007)

02/21/2007 109 Correspondence re: conference call Associated Cases: 1:05-cv-01287-CCB, 1:06-cv01863-CCB(Blake, Catherine) (Entered: 02/21/2007)

02/21/2007

110 Consent MOTION for Extension of Time by Mitchell Franks, Susan Murphy, William Jednorski. Responses due by 3/12/2007 (Pothier, Karl) (Entered: 02/21/2007)

02/22/2007

111 PAPERLESS ORDER Granting 110 Consent Motion for Extension of Time, as proposed. Response by defendant Wardens to the Third Amended Complaint due by March 23, 2007. Signed by Judge Catherine C. Blake on February 22, 2007. (Blake, Catherine) (Entered: 02/22/2007)

02/22/2007

112 NOTICE by Eric Jones re (109 in 1:05-cv-01287-CCB) Miscellaneous Correspondence Associated Cases: 1:05-cv-01287-CCB, 1:06-cv-01863-CCB(Claiborne, William) (Entered: 02/22/2007)

02/23/2007

113 Correspondence re: Conference Call Associated Cases: 1:06-cv-01863-CCB, 1:05-cv01287-CCB(Blake, Catherine) (Entered: 02/23/2007)

02/23/2007

114 Correspondence re: Conference Call Associated Cases: 1:06-cv-01863-CCB, 1:05-cv01287-CCB(Sheridan, Patrick) (Entered: 02/23/2007)

03/23/2007

115 STATUS REPORT for 3/27/07 Telephone Status by Eric Jones. Associated Cases: 1:05cv-01287-CCB, 1:06-cv-01863-CCB(Day, Sean) (Entered: 03/23/2007)

03/23/2007

116 Status Report Submitted by Maryland State Conference of NAACP Branches, Baltimore City Branch of the NAACP, Evan Howard, Donald Wilson, Robert Lowery, Aaron Stoner Associated Cases: 1:06-cv-01863-CCB, 1:05-cv-01287-CCB(Morrow, Jason) (Entered: 03/23/2007)

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03/23/2007 03/26/2007 03/26/2007 03/27/2007 03/28/2007 03/29/2007 03/30/2007
04/04/2007 04/05/2007 04/18/2007 04/18/2007
04/20/2007
04/25/2007

District of Maryland (CM/ECF Live 6.1)
117 ANSWER to Amended Complaint by Mitchell Franks, Susan Murphy, William Jednorski. (Pothier, Karl) (Entered: 03/23/2007)
118 STATUS REPORT by Mayor and City Council of the City of Baltimore, Martin O O'Malley, Edward T. Norris, Jemini Jones, Sgt. Pecha, B. Newkirk, Arnold Jones. Associated Cases: 1:06-cv-01863-CCB, 1:05-cv-01287-CCB(Hornig, Karen) (Entered: 03/26/2007)
119 Status Report Submitted (Supplemental) by Maryland State Conference of NAACP Branches, Baltimore City Branch of the NAACP, Evan Howard, Tyrone Braxton, Donald Wilson, Robert Lowery, Aaron Stoner Associated Cases: 1:06-cv-01863-CCB, 1:05-cv01287-CCB(Morrow, Jason) (Entered: 03/26/2007)
Telephone Conference held on 3/28/2007 before Judge Catherine C. Blake. Associated Cases: 1:06-cv-01863-CCB, 1:05-cv-01287-CCB(jlb, Deputy Clerk) (Entered: 03/28/2007)
120 ORDER CONFIRMING Results of Telephone Conference Call. Signed by Judge Catherine C. Blake on 3/28/07. Associated Cases: 1:06-cv-01863-CCB, 1:05-cv-01287CCB(jlb, Deputy Clerk) (Entered: 03/28/2007)
121 Consent MOTION for Other Relief To Enter A Conﬁdentiality Order by Maryland State Conference of NAACP Branches. Responses due by 4/16/2007 Associated Cases: 1:06cv-01863-CCB, 1:05-cv-01287-CCB(Morrow, Jason) (Entered: 03/29/2007)
122 PAPERLESS ORDER Granting (121) Stipulated Order Regarding Conﬁdentiality of Discovery Material, as proposed, in case CCB-05-1287; Granting (96) Stipulated Order Regarding Conﬁdentiality of Discovery Material, as proposed, in case CCB-06-1863. Signed by Judge Catherine C. Blake on March 30, 2007. Associated Cases: 1:06-cv01863-CCB, 1:05-cv-01287-CCB(Blake, Catherine) (Entered: 03/30/2007)
123 Miscellaneous Correspondence adjusting the time of the conference call on April 25, 2007. Associated Cases: 1:05-cv-01287-CCB, 1:06-cv-01863-CCB(Blake, Catherine) (Entered: 04/04/2007)
124 NOTICE of Appearance by Suzanne Sangree on behalf of Mayor and City Council of the City of Baltimore Associated Cases: 1:06-cv-01863-CCB, 1:05-cv-01287-CCB(Sangree, Suzanne) (Entered: 04/05/2007)
125 STATUS REPORT (Joint for 05-1287) for 4/25/07 Status Conference by Eric Jones, Susan Murphy. Associated Cases: 1:05-cv-01287-CCB, 1:06-cv-01863-CCB(Day, Sean) (Entered: 04/18/2007)
126 STATUS REPORT by Maryland State Conference of NAACP Branches, Baltimore City Branch of the NAACP, Evan Howard, Tyrone Braxton, Donald Wilson, Robert Lowery, Aaron Stoner. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6)Associated Cases: 1:06-cv-01863-CCB, 1:05-cv-01287CCB(Morrow, Jason) (Entered: 04/18/2007)
127 Status Report Submitted by Baltimore City Police Department, Mayor and City Council of the City of Baltimore, Martin O O'Malley, Leonard Hamm, Marcus Brown, Kevin Clark, Edward T. Norris, Jemini Jones, David A. Crites, Jr, Sgt. Pecha, B. Newkirk, Arnold Jones (Attachments: # 1 Exhibit Notice of Deposition)Associated Cases: 1:06-cv01863-CCB, 1:05-cv-01287-CCB(Hornig, Karen) (Entered: 04/20/2007)
128 TRANSCRIPT of Tele-Conference held on 1/19/07 before Judge Blake. Court Reporter: G. Simpkins. (FILED SEPARATELY UNDER 06-1863) Associated Cases: 1:06-cv01863-CCB, 1:05-cv-01287-CCB(hml, Deputy Clerk) (Entered: 04/25/2007)

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04/25/2007

District of Maryland (CM/ECF Live 6.1)
Telephone Conference held on 4/25/2007 before Judge Catherine C. Blake. (mcb, Deputy Clerk) (Entered: 04/26/2007)

04/26/2007 129 ORDER CONFIRMING the results of the Telephone Conference held on 4/25/07. Signed by Judge Catherine C. Blake on 4/26/07. (mcb, Deputy Clerk) (Entered: 04/26/2007)

05/21/2007

130 STATUS REPORT by Maryland State Conference of NAACP Branches, Baltimore City Branch of the NAACP, Evan Howard, Tyrone Braxton, Donald Wilson, Robert Lowery, Aaron Stoner. Associated Cases: 1:06-cv-01863-CCB, 1:05-cv-01287-CCB(Morrow, Jason) (Entered: 05/21/2007)

06/22/2007 131 STATUS REPORT for 6/26/07 Conference by Eric Jones. Associated Cases: 1:05-cv01287-CCB, 1:06-cv-01863-CCB(Day, Sean) (Entered: 06/22/2007)

06/22/2007

132 STATUS REPORT by Maryland State Conference of NAACP Branches, Baltimore City Branch of the NAACP, Evan Howard, Tyrone Braxton, Donald Wilson, Robert Lowery, Aaron Stoner. Associated Cases: 1:06-cv-01863-CCB, 1:05-cv-01287-CCB(Morrow, Jason) (Entered: 06/22/2007)

06/22/2007

133 STATUS REPORT by Mitchell Franks, Susan Murphy, William Jednorski, State Of Maryland, Mary Ann Saar, William Smith, Mitchell Franks, Susan Murphy. Associated Cases: 1:05-cv-01287-CCB, 1:06-cv-01863-CCB(Pothier, Karl) (Entered: 06/22/2007)

06/26/2007 134 Miscellaneous Correspondence regarding future scheduling. (Blake, Catherine) (Entered: 06/26/2007)

06/26/2007

Telephone Conference held on 6/26/2007 before Judge Catherine C. Blake. Associated Cases: 1:06-cv-01863-CCB, 1:05-cv-01287-CCB(jlb, Deputy Clerk) (Entered: 06/26/2007)

06/29/2007

135 Joint MOTION to Amend/Correct December 20, 2006 Order by Maryland State Conference of NAACP Branches. Responses due by 7/16/2007 Associated Cases: 1:06cv-01863-CCB, 1:05-cv-01287-CCB(Dowdle, Stephenie) (Entered: 06/29/2007)

07/02/2007

Telephone Conference held on 7/2/2007 before Judge Catherine C. Blake. Associated Cases: 1:05-cv-01287-CCB, 1:06-cv-01863-CCB(mcb, Deputy Clerk) (Entered: 07/02/2007)

10/01/2007 137 STATUS REPORT for 10/4/07 Telephone Status Conference by Eric Jones. Associated Cases: 1:05-cv-01287-CCB, 1:06-cv-01863-CCB(Day, Sean) (Entered: 10/01/2007)

10/01/2007

138 Status Report Submitted by Baltimore City Police Department, Mayor and City Council of the City of Baltimore, Martin O O'Malley, Leonard Hamm, Marcus Brown, Kevin Clark, Edward T. Norris, Jemini Jones, Sgt. Pecha, B. Newkirk, Arnold Jones Associated Cases: 1:06-cv-01863-CCB, 1:05-cv-01287-CCB(Hornig, Karen) (Entered: 10/01/2007)

10/01/2007

139 STATUS REPORT by Mitchell Franks, Susan Murphy, William Jednorski, State Of Maryland, Mary Ann Saar, William Smith, Mitchell Franks, Susan Murphy. Associated Cases: 1:05-cv-01287-CCB, 1:06-cv-01863-CCB(Pothier, Karl) (Entered: 10/01/2007)

10/01/2007

140 STATUS REPORT by Maryland State Conference of NAACP Branches, Baltimore City Branch of the NAACP, Evan Howard, Tyrone Braxton, Donald Wilson, Robert Lowery, Aaron Stoner. Associated Cases: 1:06-cv-01863-CCB, 1:05-cv-01287-CCB(Morrow, Jason) (Entered: 10/01/2007)

10/04/2007 141 Miscellaneous Correspondence to counsel. Status report due November 30, 2007. (Blake, Catherine) (Entered: 10/04/2007)

10/12/2007 142 MOTION to Amend/Correct 55 Amended Complaint, Fourth Amended Complaint by Eric Jones. Responses due by 10/29/2007 (Attachments: # 1 Exhibit Marked 4AC# 2

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10/30/2007
10/30/2007 11/15/2007 11/16/2007
11/30/2007 11/30/2007 11/30/2007 12/04/2007 12/06/2007 12/07/2007 12/17/2007 12/18/2007
01/14/2008

District of Maryland (CM/ECF Live 6.1)
Exhibit 4AC Unmarked# 3 Appendix 4AC Table of Contents)(Day, Sean) (Entered: 10/12/2007)
143 Consent MOTION for Extension of Time to File Response/Reply as to (142 in 1:05-cv01287-CCB) MOTION to Amend/Correct (55) Amended Complaint, Fourth Amended Complaint by Mitchell Franks, Susan Murphy, William Jednorski. Responses due by 11/16/2007 (Attachments: # 1 Text of Proposed Order)Associated Cases: 1:05-cv-01287CCB, 1:06-cv-01863-CCB(Pothier, Karl) (Entered: 10/30/2007)
144 PAPERLESS ORDER Granting 143 Consent Motion for Extension of Time to File Response re 142 Motion to Amend/Correct 55 Amended Complaint. Responses due by 11/5/2007. Signed by Judge Catherine C. Blake on October 30, 2007. (Blake, Catherine) (Entered: 10/30/2007)
145 PAPERLESS ORDER Granting 142 Motion for Leave to File Fourth Amended Complaint. Signed by Judge Catherine C. Blake on November 15, 2007. (Blake, Catherine) (Entered: 11/15/2007)
146 FOURTH AMENDED COMPLAINT against Mitchell Franks, Susan Murphy, William Jednorski, ﬁled by Eric Jones, Aaron Ross, Kevin Adams, Tonia Bowie, David Colyns, Anthony Haig, Gary Saunders, Michael Washington, Dana T. West. (Attachments: # 1 Table of Contents# 2 Redlined Version of Amended Complaint)(mcb, Deputy Clerk) (Entered: 11/16/2007)
147 NOTICE by Eric Jones joint status report (Claiborne, William) (Entered: 11/30/2007)
148 STATUS REPORT by Maryland State Conference of NAACP Branches, Baltimore City Branch of the NAACP, Evan Howard, Tyrone Braxton, Donald Wilson, Robert Lowery, Aaron Stoner. Associated Cases: 1:06-cv-01863-CCB, 1:05-cv-01287-CCB(Morrow, Jason) (Entered: 11/30/2007)
149 STATUS REPORT by Mitchell Franks, Susan Murphy, William Jednorski, State Of Maryland, Mary Ann Saar, William Smith, Mitchell Franks, Susan Murphy. Associated Cases: 1:05-cv-01287-CCB, 1:06-cv-01863-CCB(Pothier, Karl) (Entered: 11/30/2007)
150 Miscellaneous Correspondence to counsel. Status report due February 19, 2008. (Blake, Catherine) (Entered: 12/04/2007)
151 ANSWER to Amended Complaint by Mitchell Franks, Susan Murphy, William Jednorski.Associated Cases: 1:05-cv-01287-CCB, 1:06-cv-01863-CCB(Pothier, Karl) (Entered: 12/06/2007)
152 Correspondence re: Amended Complaint Associated Cases: 1:06-cv-01863-CCB, 1:05cv-01287-CCB(Morrow, Jason) (Entered: 12/07/2007)
153 MOTION to Withdraw as Attorney by Jemini Jones. Responses due by 1/3/2008 (Attachments: # 1 Text of Proposed Order)Associated Cases: 1:06-cv-01863-CCB, 1:05cv-01287-CCB(Sheridan, Patrick) (Entered: 12/17/2007)
154 ORDER granting (153) Motion to Withdraw as Attorney in case 1:05-cv-01287-CCB; granting (131) Motion to Withdraw as Attorney in case 1:06-cv-01863-CCB. ***Attorney James Howard Fields for Jemini Jones added. Attorney Patrick Sheridan, Michael Francis Conti and Karen Stakem Hornig terminated for Jemini Jones. Signed by Judge Catherine C. Blake on 12/18/07. Associated Cases: 1:06-cv-01863-CCB, 1:05-cv-01287-CCB(hml, Deputy Clerk) (Entered: 12/18/2007)
155 NOTICE of Appearance by Beverly F Hughes on behalf of Mitchell Franks, Susan Murphy, William Jednorski (Hughes, Beverly) (Entered: 01/14/2008)

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01/31/2008 02/01/2008 02/15/2008
02/19/2008 02/19/2008 02/19/2008 02/20/2008
02/21/2008 02/21/2008 02/21/2008 03/04/2008 03/04/2008 03/14/2008 03/17/2008 03/18/2008

District of Maryland (CM/ECF Live 6.1)
156 Consent MOTION for Extension of Time to File Motion for Partial Summary Judgment by Eric Jones Responses due by 2/19/2008 Associated Cases: 1:05-cv-01287-CCB, 1:06cv-01863-CCB(Day, Sean) (Entered: 01/31/2008)
157 PAPERLESS ORDER Granting 156 Consent Motion for Extension of Time until February 20, 2008 to File Motion for Partial Summary Judgment. Signed by Judge Catherine C. Blake on February 1, 2008. (Blake, Catherine) (Entered: 02/01/2008)
158 Status Report Submitted by Baltimore City Police Department, Mayor and City Council of the City of Baltimore, Martin O O'Malley, Leonard Hamm, Marcus Brown, Kevin Clark, Edward T. Norris, David A. Crites, Jr, Sgt. Pecha, B. Newkirk, Arnold Jones Associated Cases: 1:06-cv-01863-CCB, 1:05-cv-01287-CCB(Hornig, Karen) (Entered: 02/15/2008)
159 STATUS REPORT by Mitchell Franks, Susan Murphy, William Jednorski. (Hughes, Beverly) (Entered: 02/19/2008)
160 STATUS REPORT for 2/21/08 Conference by Eric Jones. Associated Cases: 1:05-cv01287-CCB, 1:06-cv-01863-CCB(Day, Sean) (Entered: 02/19/2008)
161 STATUS REPORT by Maryland State Conference of NAACP Branches. Associated Cases: 1:06-cv-01863-CCB, 1:05-cv-01287-CCB(Morrow, Jason) (Entered: 02/19/2008)
162 MOTION for Summary Judgment (Partial Summary Judgment) by Eric Jones Responses due by 3/10/2008 (Attachments: # 1 Exhibit Pl. Ex. 101, # 2 Exhibit Pl. Ex. 102, # 3 Exhibit Pl. Ex. 103, # 4 Exhibit Pl. Ex. 104, # 5 Exhibit Pl. Ex. 105, # 6 Exhibit Pl. Ex. 106, # 7 Exhibit Pl. Ex. 107, # 8 Exhibit Pl. Ex. 108, # 9 Exhibit Pl. Ex. 109, # 10 Exhibit Pl. Ex. 110, # 11 Exhibit Pl. Ex. 111, # 12 Exhibit Pl. Ex. 112, # 13 Exhibit Pl. Ex. 113, # 14 Exhibit Pl. Ex. 114, # 15 Exhibit Pl. Ex. 115, # 16 Exhibit Pl. Ex. 116, # 17 Exhibit Index of Exhibits)Associated Cases: 1:05-cv-01287-CCB, 1:06-cv-01863-CCB(Day, Sean) (Entered: 02/20/2008)
163 MARGINAL ORDER approving 160 Plaintiffs' Status Report for 2/21/08 Telephone Status Conference; Confernce Call scheduled for March 4, 2008 at 9:15a.m. Signed by Judge Catherine C. Blake on 2/21/08. (mcb, Deputy Clerk) (Entered: 02/21/2008)
Telephone Conference held on 2/21/2008 before Judge Catherine C. Blake. Associated Cases: 1:05-cv-01287-CCB, 1:06-cv-01863-CCB(mcb, Deputy Clerk) (Entered: 02/21/2008)
164 ORDER CONFIRMING the results of the Telephone Conference held on February 21, 2008. Signed by Judge Catherine C. Blake on 2/21/08. Associated Cases: 1:05-cv-01287CCB, 1:06-cv-01863-CCB(mcb, Deputy Clerk) (Entered: 02/21/2008)
Telephone Conference held on 3/4/2008 before Judge Catherine C. Blake. (mcb, Deputy Clerk) (Entered: 03/04/2008)
165 ORDER CONFIRMING the results of the Telephone Conference held on 3/4/08. Signed by Judge Catherine C. Blake on 3/4/08. (mcb, Deputy Clerk) (Entered: 03/04/2008)
166 MOTION for Extension of Time by Mitchell Franks, Susan Murphy, William Jednorski Responses due by 3/31/2008 (Hughes, Beverly) (Entered: 03/14/2008)
167 PAPERLESS ORDER APPROVING 166 Unopposed Motion for Extension of Time. Signed by Judge Catherine C. Blake on 3/17/08. (Blake, Catherine) (Entered: 03/17/2008)
168 MOTION for Protective Order by Mitchell Franks, Susan Murphy, William Jednorski Responses due by 4/4/2008 (Attachments: # 1 Memorandum In Support of Motion for

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Protective Order, # 2 Certiﬁcation Pursuant to Fed. R. Civ. Proc. 26(c), # 3 Afﬁdavit) (Hughes, Beverly) (Entered: 03/18/2008)

03/31/2008

169 MOTION for Extension of Time to File Response/Reply by Mitchell Franks, Susan Murphy, William Jednorski. Responses due by 4/17/2008 (Hughes, Beverly) (Entered: 03/31/2008)

04/01/2008

170 PAPERLESS ORDER Granting 169 Motion for Extension of Time to File Response re 162 Motion for Partial Summary Judgment. Responses due by 4/11/2008. Signed by Judge Catherine C. Blake on April 1, 2008. (Blake, Catherine) (Entered: 04/01/2008)

04/04/2008

171 Consent MOTION for Extension of Time to File Response/Reply as to 168 MOTION for Protective Order by Eric Jones. Responses due by 4/21/2008 (Day, Sean) (Entered: 04/04/2008)

04/08/2008

172 RESPONSE in Opposition re (168 in 1:05-cv-01287-CCB) MOTION for Protective Order ﬁled by Eric Jones. Replies due by 4/22/2008. Associated Cases: 1:05-cv-01287CCB, 1:06-cv-01863-CCB(Day, Sean) (Entered: 04/08/2008)

04/08/2008

173 PAPERLESS ORDER Granting 171 Consent Motion for Extension of Time to File Response re 168 Motion for Protective Order. Responses due by 4/8/2008. Signed by Judge Catherine C. Blake on April 8, 2008. (Blake, Catherine) (Entered: 04/08/2008)

04/10/2008 174 Consent MOTION for Extension of Time by Mitchell Franks, Susan Murphy, William Jednorski Responses due by 4/28/2008 (Pothier, Karl) (Entered: 04/10/2008)

04/11/2008

175 PAPERLESS ORDER Granting 174 Consent Motion for Extension of Time until April 28, 2008 to respond to 162 . Signed by Judge Catherine C. Blake on April 11, 2008. (Blake, Catherine) (Entered: 04/11/2008)

04/21/2008

176 Status Report Submitted by William Jednorski, Baltimore City Police Department, Mayor and City Council of the City of Baltimore, Martin O O'Malley, Leonard Hamm, Marcus Brown, Kevin Clark, Edward T. Norris, Sheila Dixon, Gary D. Maynard, Heron, J. Grey, Joseph Chin, Southard, Michael Pinkosz, Lolando L. Hamilton, David A. Crites, Jr, Ronald S. Mealey, Sgt. Pecha, B. Newkirk, Arnold Jones, William Smith Associated Cases: 1:06-cv-01863-CCB, 1:05-cv-01287-CCB(Hornig, Karen) (Entered: 04/21/2008)

04/21/2008 177 STATUS REPORT (Joint) by Eric Jones, Susan Murphy. Associated Cases: 1:05-cv01287-CCB, 1:06-cv-01863-CCB(Day, Sean) (Entered: 04/21/2008)

04/23/2008

178 PAPERLESS ORDER APPROVING (155 in 1:06-cv-01863-CCB) NAACP Plaintiffs' Status Report. Further Status Report is due May 19, 2008; a conference call is set for May 21, 2008 at 9:30 a.m. Signed by Judge Catherine C. Blake on April 23, 2008. Associated Cases: 1:06-cv-01863-CCB, 1:05-cv-01287-CCB(Blake, Catherine) (Entered: 04/23/2008)

04/23/2008

179 PAPERLESS ORDER APPROVING (177 in 1:05-cv-01287-CCB) Joint Status Report. Further status report due May 19, 2008; conference call is set for May 21, 2008 at 9:30 a.m. Signed by Judge Catherine C. Blake on April 23, 2008. Associated Cases: 1:05-cv01287-CCB, 1:06-cv-01863-CCB(Blake, Catherine) (Entered: 04/23/2008)

04/25/2008 180 REPLY to Response to Motion re 168 MOTION for Protective Order ﬁled by Mitchell Franks, Susan Murphy, William Jednorski. (Pothier, Karl) (Entered: 04/25/2008)

04/25/2008

181 MOTION to Certify Class by Kevin Adams, Tonia Bowie, David Colyns, Anthony Haig, Gary Saunders, Michael Washington, Eric Jones, Dana T. West, Aaron Ross Responses due by 5/12/2008 (Attachments: # 1 TOC for Memorandum, # 2 Memorandum, # 3 Text of Proposed Order Proposed Order, # 4 Exhibit Index of Exhibits, # 5 Exhibit Pl Ex 26, # 6 Exhibit Pl Ex 27, # 7 Exhibit Pl Ex 28, # 8 Exhibit Pl Ex 29, # 9 Exhibit Pl Ex 44, # 10

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District of Maryland (CM/ECF Live 6.1)
Exhibit Pl Ex 45, # 11 Exhibit Pl Ex 56, # 12 Exhibit Pl Ex 57, # 13 Exhibit Pl Ex 108, # 14 Exhibit Pl Ex 110, # 15 Exhibit Pl Ex 111, # 16 Exhibit Pl Ex 114, # 17 Exhibit Pl Ex 115, # 18 Exhibit PL Ex 117, # 19 Exhibit PL Ex 121, # 20 Exhibit Pl Ex 122, # 21 Exhibit Pl Ex 123, # 22 Exhibit Pl Ex 124, # 23 Exhibit Pl Ex 125, # 24 Exhibit PL Ex 126, # 25 Exhibit Pl Ex 127, # 26 Exhibit Pl Ex 129, # 27 Exhibit Pl Ex 130, # 28 Exhibit Pl Ex 131, # 29 Exhibit Pl Ex 132, # 30 Exhibit Pl Ex 133, # 31 Exhibit Pl Ex 134, # 32 Exhibit Pl Ex 135, # 33 Exhibit Pl Ex 136, # 34 Exhibit Pl Ex 137)Associated Cases: 1:05-cv-01287-CCB, 1:06-cv-01863-CCB(Day, Sean) (1 paper copy submitted to Chambers on 4/29/08) Modiﬁed on 4/29/2008 (mcb, Deputy Clerk). (Entered: 04/25/2008)

04/28/2008

182 Consent MOTION for Extension of Time to File Response/Reply to Plaintiffs' Motion for Partial Summary Judgment by Mitchell Franks, Susan Murphy, William Jednorski. Responses due by 5/15/2008 (Pothier, Karl) (Entered: 04/28/2008)

05/02/2008

183 RESPONSE in Opposition to 162 MOTION for Summary Judgment (Partial Summary Judgment) ﬁled by Mitchell Franks, Susan Murphy, William Jednorski. Replies due by 5/16/2008. (Pothier, Karl) Modiﬁed on 5/5/2008 (mcb, Deputy Clerk). (Entered: 05/02/2008)

05/02/2008

184 Cross MOTION for Partial Summary Judgment by Mitchell Franks, Susan Murphy, William Jednorski Responses due by 5/19/2008 (Attachments: # 1 Memorandum of Law in Support of Motion for Partial Summary Judgment)(Pothier, Karl) (Entered: 05/02/2008)

05/19/2008

185 Status Report Submitted by William Jednorski, Baltimore City Police Department, Martin O O'Malley, Leonard Hamm, Marcus Brown, Kevin Clark, Edward T. Norris, Sheila Dixon, J. Grey, Joseph Chin, Southard, Lolando L. Hamilton, David A. Crites, Jr, Sgt. Pecha, B. Newkirk, Arnold Jones Associated Cases: 1:06-cv-01863-CCB, 1:05-cv-01287CCB(Hornig, Karen) (Entered: 05/19/2008)

05/19/2008

186 STATUS REPORT by Maryland State Conference of NAACP Branches, Baltimore City Branch of the NAACP, Timothy Johnson, Tavis Crockett, Rafﬁc Scott, Kerrell K. Wright, Carol Higgs, Armondo Horsey, Jonathan Lindsay, Erin Marcus, Jeffrey Chapman, Evan Howard, Tyrone Braxton, Donald Wilson, Robert Lowery, Aaron Stoner. Associated Cases: 1:06-cv-01863-CCB, 1:05-cv-01287-CCB(Dowdle, Stephenie) (Entered: 05/19/2008)

05/19/2008

187 REPLY to Response to Motion re (162 in 1:05-cv-01287-CCB, 142 in 1:06-cv-01863CCB) MOTION for Summary Judgment (Partial Summary Judgment) MOTION for Summary Judgment (Partial Summary Judgment) MOTION for Summary Judgment (Partial Summary Judgment) ﬁled by Eric Jones. Associated Cases: 1:05-cv-01287-CCB, 1:06-cv-01863-CCB(Day, Sean) (Entered: 05/19/2008)

05/19/2008

188 RESPONSE in Opposition re (184 in 1:05-cv-01287-CCB) Cross MOTION for Partial Summary Judgment ﬁled by Eric Jones. Replies due by 6/2/2008. Associated Cases: 1:05cv-01287-CCB, 1:06-cv-01863-CCB(Day, Sean) (Entered: 05/19/2008)

05/19/2008

189 STATUS REPORT (Joint) for 5/21/08 Conference by Eric Jones, Susan Murphy. Associated Cases: 1:05-cv-01287-CCB, 1:06-cv-01863-CCB(Day, Sean) (Entered: 05/19/2008)

05/21/2008 190 Correspondence re: City Law Department Associated Cases: 1:06-cv-01863-CCB, 1:05cv-01287-CCB(Hornig, Karen) (Entered: 05/21/2008)

05/21/2008

Telephone Conference held on 5/21/2008 before Judge Catherine C. Blake. Associated Cases: 1:05-cv-01287-CCB, 1:06-cv-01863-CCB(mcb, Deputy Clerk) (Entered: 05/23/2008)

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05/22/2008

District of Maryland (CM/ECF Live 6.1)
191 NOTICE of Errata and Filing of Corrected Exhibit #124 by Eric Jones (Attachments: # 1 Exhibit 124 (corrected))Associated Cases: 1:05-cv-01287-CCB, 1:06-cv-01863CCB(Day, Sean) Modiﬁed on 5/22/2008 (mcb, Deputy Clerk). (Entered: 05/22/2008)

05/22/2008

192 ORDER CONFIRMING the results of the Telephone Conference held on May 21, 2008. Signed by Judge Catherine C. Blake on 5/22/08. Associated Cases: 1:05-cv-01287-CCB, 1:06-cv-01863-CCB(mcb, Deputy Clerk) (Entered: 05/23/2008)

05/27/2008 193 Correspondence re: In Camera Inspection Associated Cases: 1:05-cv-01287-CCB, 1:06cv-01863-CCB(Pothier, Karl) (Entered: 05/27/2008)

06/02/2008 194 Consent MOTION for Extension of Time by Mitchell Franks, Susan Murphy, William Jednorski Responses due by 6/19/2008 (Pothier, Karl) (Entered: 06/02/2008)

06/03/2008

195 PAPERLESS ORDER Granting 194 Consent Motion for Extension of Time until June 9, 2008 to ﬁle Reply. Signed by Judge Catherine C. Blake on June 3, 2008. (Blake, Catherine) (Entered: 06/03/2008)

06/09/2008

196 REPLY to Response to Motion re (142 in 1:06-cv-01863-CCB) MOTION for Summary Judgment Defendants' Memorandum in Reply to Plaintiffs' Opposition to Defendants' Cross-Motion for Partial Summary Judgment ﬁled by Mitchell Franks, Susan Murphy, William Jednorski. Associated Cases: 1:05-cv-01287-CCB, 1:06-cv-01863-CCB(Pothier, Karl) (Entered: 06/09/2008)

06/18/2008

197 ORDER REFERRING CASE to Magistrate Judge Susan K. Gauvey for in camera review of motion for protective order. Signed by Judge Catherine C. Blake on 6/18/08. (jnl, Deputy Clerk) (Entered: 06/18/2008)

06/18/2008

198 ORDER directing that the Motion for Protective Order will not be heard on June 25, 2008 but will be referred to a Magistrate Judge to conduct the in camera review and rule on the Motion. Signed by Judge Catherine C. Blake on 6/18/08. (mcb, Deputy Clerk) (Entered: 06/18/2008)

06/18/2008

199 MOTION for Extension of Time to File Response/Reply to Plaintiffs' Motion for Class Certiﬁcation by Mitchell Franks, Susan Murphy, William Jednorski. Responses due by 7/7/2008 (Pothier, Karl) (Entered: 06/18/2008)

06/24/2008 200 NOTICE of Appearance by Michael O Connor Doyle on behalf of Mitchell Franks, Susan Murphy, William Jednorski (Doyle, Michael) (Entered: 06/24/2008)

06/25/2008

201 Motion Hearing held on 6/25/2008 re 184 Cross MOTION for Partial Summary Judgment ﬁled by Susan Murphy, Mitchell Franks, William Jednorski held before Judge Catherine C. Blake. (Court Reporter: Gail Simpkins) (kam, Deputy Clerk) (Entered: 06/25/2008)

07/11/2008

202 MEMORANDUM. Signed by Judge Catherine C. Blake on 7/11/08. (mcb, Deputy Clerk) (Entered: 07/11/2008)

07/11/2008

203 ORDER granting 162 Motion of Plaintiffs for Partial Summary Judgment; denying 184 Motion of Defendants for Partial Summary Judgment as to the equal protection issue, and denying without Prejudice as to the qualiﬁed immunity issue. Signed by Judge Catherine C. Blake on 7/11/08. (mcb, Deputy Clerk) (Entered: 07/11/2008)

07/17/2008

204 Transcript of Proceedings held on 6-25-08, before Judge Blake. Court Reporter/Transcriber Gail Simpkins, Telephone number 410-962-4536. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained from the Court Reporter or through PACER.. Redaction Request due 8/4/2008. Redacted Transcript Deadline set for 8/14/2008. Release of Transcript Restriction set for 10/14/2008. (gak, Court Reporter) (Entered: 07/17/2008)

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07/18/2008 07/22/2008 07/22/2008 07/22/2008 07/23/2008
07/23/2008
07/24/2008 07/25/2008 08/01/2008 08/06/2008 08/12/2008 08/22/2008 09/05/2008
09/05/2008 09/05/2008

District of Maryland (CM/ECF Live 6.1)
205 Status Report Submitted & Request for Extension by Mitchell Franks, Susan Murphy, William Jednorski Associated Cases: 1:05-cv-01287-CCB, 1:06-cv-01863CCB(Brockman, William) (Entered: 07/18/2008)
206 STATUS REPORT for 07/24/08 Conference by Eric Jones. Associated Cases: 1:05-cv01287-CCB, 1:06-cv-01863-CCB(Day, Sean) (Entered: 07/22/2008)
207 Correspondence re: Defendants' Correspondence Requesting Extension Associated Cases: 1:05-cv-01287-CCB, 1:06-cv-01863-CCB(Day, Sean) (Entered: 07/22/2008)
208 STATUS REPORT by Mitchell Franks, Susan Murphy, William Jednorski. Associated Cases: 1:06-cv-01863-CCB, 1:05-cv-01287-CCB(Brockman, William) (Entered: 07/22/2008)
209 STATUS REPORT by Maryland State Conference of NAACP Branches, Baltimore City Branch of the NAACP, Timothy Johnson, Tavis Crockett, Rafﬁc Scott, Kerrell K. Wright, Carol Higgs, Armondo Horsey, Jonathan Lindsay, Erin Marcus, Jeffrey Chapman, Evan Howard, Tyrone Braxton, Donald Wilson, Robert Lowery, Aaron Stoner. Associated Cases: 1:06-cv-01863-CCB, 1:05-cv-01287-CCB(Morrow, Jason) (Entered: 07/23/2008)
210 Status Report Submitted by Baltimore City Police Department, Mayor and City Council of the City of Baltimore, Leonard Hamm, Kevin Clark, Edward T. Norris, Sheila Dixon, Heron, J. Grey, Joseph Chin, Southard, Michael Pinkosz, Lolando L. Hamilton, David A. Crites, Jr, Ronald S. Mealey, Sgt. Pecha, B. Newkirk, Arnold Jones Associated Cases: 1:06-cv-01863-CCB, 1:05-cv-01287-CCB(Conti, Michael) (Entered: 07/23/2008)
Telephone Conference held on 7/24/2008 before Judge Catherine C. Blake. (mcb, Deputy Clerk) (Entered: 07/25/2008)
211 ORDER CONFIRMING the results of the Telephone Conference held on 7/24/08. Signed by Judge Catherine C. Blake on 7/25/08. (mcb, Deputy Clerk) (Entered: 07/25/2008)
Telephone Motions Hearing held on 8/1/2008 before Magistrate Judge Susan K. Gauvey. (mcb, Deputy Clerk) (Entered: 08/12/2008)
212 STATUS REPORT by Kevin Adams, Tonia Bowie, David Colyns, Anthony Haig, Gary Saunders, Michael Washington, Mitchell Franks, Eric Jones, Dana T. West, Aaron Ross, Susan Murphy, William Jednorski. (Pothier, Karl) (Entered: 08/06/2008)
213 ORDER CONFIRMING the schedule set at the Telephone Motions Hearing on August 1, 2008. Signed by Magistrate Judge Susan K. Gauvey on 8/12/08. (mcb, Deputy Clerk) (Entered: 08/12/2008)
214 REPLY to Response to Motion re 168 MOTION for Protective Order (Supplemental) ﬁled by Mitchell Franks, Susan Murphy, William Jednorski. (Attachments: # 1 Exhibit 1) (Pothier, Karl) (Entered: 08/22/2008)
215 Status Report Submitted by Baltimore City Police Department, Mayor and City Council of the City of Baltimore, Martin O O'Malley, Leonard Hamm, Marcus Brown, Kevin Clark, Edward T. Norris, Sheila Dixon, Heron, J. Grey, Joseph Chin, Southard, Michael Pinkosz, Lolando L. Hamilton, David A. Crites, Jr, Ronald S. Mealey, Sgt. Pecha, B. Newkirk, Arnold Jones Associated Cases: 1:06-cv-01863-CCB, 1:05-cv-01287CCB(Conti, Michael) (Entered: 09/05/2008)
216 STATUS REPORT (Joint) for 9/9/08 Conference by Eric Jones, Susan Murphy. Associated Cases: 1:05-cv-01287-CCB, 1:06-cv-01863-CCB(Day, Sean) (Entered: 09/05/2008)
217 STATUS REPORT by Maryland State Conference of NAACP Branches, Baltimore City

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09/29/2008 10/17/2008
10/17/2008 10/20/2008 10/27/2008

District of Maryland (CM/ECF Live 6.1)
Branch of the NAACP, Timothy Johnson, Tavis Crockett, Rafﬁc Scott, Kerrell K. Wright, Carol Higgs, Armondo Horsey, Jonathan Lindsay, Erin Marcus, Jeffrey Chapman, Evan Howard, Tyrone Braxton, Donald Wilson, Robert Lowery, Aaron Stoner. Associated Cases: 1:06-cv-01863-CCB, 1:05-cv-01287-CCB(Morrow, Jason) (Entered: 09/05/2008)
218 NOTICE of Appearance by Alan D Eason on behalf of Mitchell Franks, Susan Murphy, William Jednorski (Eason, Alan) (Entered: 09/07/2008)
219 RESPONSE re 214 Reply to Response to Motion (Supplement per Court's Order) ﬁled by Eric Jones. (Day, Sean) (Entered: 09/08/2008)
Telephone Conference held on 9/9/2008 before Judge Catherine C. Blake. (mcb, Deputy Clerk) (Entered: 09/09/2008)
220 ORDER conﬁrming the dates set during the Telephone Conference held on September 9, 2008. Signed by Judge Catherine C. Blake on 9/9/08. (mcb, Deputy Clerk) (Entered: 09/09/2008)
221 MOTION for Extension of Time to File Response/Reply as to (181 in 1:05-cv-01287CCB, 158 in 1:06-cv-01863-CCB) MOTION to Certify Class by Mitchell Franks, Susan Murphy, William Jednorski. Responses due by 10/10/2008 (Attachments: # 1 Text of Proposed Order)Associated Cases: 1:05-cv-01287-CCB, 1:06-cv-01863-CCB(Brockman, William) (Entered: 09/23/2008)
222 RESPONSE to Motion re (221 in 1:05-cv-01287-CCB, 196 in 1:06-cv-01863-CCB) MOTION for Extension of Time to File Response/Reply as to (181 in 1:05-cv-01287CCB, 158 in 1:06-cv-01863-CCB) MOTION to Certify Class MOTION for Extension of Time to File Response/Reply as to (181 in 1:05-cv-01287-CCB, 158 in 1:06-cv-01863CCB) MOTION to Certify Class (CONSENT RESPONSE) ﬁled by Eric Jones. Replies due by 10/10/2008. Associated Cases: 1:05-cv-01287-CCB, 1:06-cv-01863-CCB(Day, Sean) (Entered: 09/26/2008)
223 PAPERLESS ORDER APPROVING 222 Response to Motion to Extend Deadline 221 ; Response to Motion to Certify due October 28, 2008. Signed by Judge Catherine C. Blake on September 29, 2008. (Blake, Catherine) (Entered: 09/29/2008)
224 JOINT MOTION to Extend Period of Fact Discovery and STATUS REPORT by Baltimore City Police Department, Mayor and City Council of the City of Baltimore, Martin O O'Malley, Leonard Hamm, Marcus Brown, Kevin Clark, Maryland State Conference of NAACP Branches, Edward T. Norris, Jemini Jones, Baltimore City Branch of the NAACP, Timothy Johnson, Tavis Crockett, Rafﬁc Scott, Kerrell K. Wright, Carol Higgs, Armondo Horsey, Jonathan Lindsay, Erin Marcus, Jeffrey Chapman, Sheila Dixon, Heron, J. Grey, Joseph Chin, Southard, Michael Pinkosz, Lolando L. Hamilton, David A. Crites, Jr, Ronald S. Mealey, Sgt. Pecha, Evan Howard, B. Newkirk, Arnold Jones, Tyrone Braxton, John Does 1-100, Donald Wilson, Robert Lowery, Aaron Stoner. Associated Cases: 1:06-cv-01863-CCB, 1:05-cv-01287-CCB(Morrow, Jason) Modiﬁed on 10/20/2008 (mcb, Deputy Clerk). (Entered: 10/17/2008)
225 STATUS REPORT (Joint) by Eric Jones. Associated Cases: 1:05-cv-01287-CCB, 1:06cv-01863-CCB(Day, Sean) (Entered: 10/17/2008)
226 PAPERLESS ORDER APPROVING 224 Status Report and Joint Motion to Extend Discovery. Signed by Judge Catherine C. Blake on October 20, 2008.(mcb, Deputy Clerk) (Entered: 10/21/2008)
227 MOTION for Extension of Time to File Response/Reply as to (158 in 1:06-cv-01863CCB) MOTION to Certify Class by Susan Murphy, William Jednorski, Mitchell Franks. Responses due by 11/13/2008 (Attachments: # 1 Text of Proposed Order)Associated

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District of Maryland (CM/ECF Live 6.1)
Cases: 1:05-cv-01287-CCB, 1:06-cv-01863-CCB(Brockman, William) (Entered: 10/27/2008)

10/28/2008

228 RESPONSE in Opposition re (227 in 1:05-cv-01287-CCB, 203 in 1:06-cv-01863-CCB) MOTION for Extension of Time to File Response/Reply as to (158 in 1:06-cv-01863CCB) MOTION to Certify Class MOTION for Extension of Time to File Response/Reply as to (158 in 1:06-cv-01863-CCB) MOTION to Certify Class ﬁled by Eric Jones. Replies due by 11/12/2008. Associated Cases: 1:05-cv-01287-CCB, 1:06-cv-01863-CCB(Day, Sean) (Entered: 10/28/2008)

10/31/2008

229 ORDER granting (227) Motion for Enlargement of Time Within Which to File Opposition to Motion for Class Certiﬁcation in case 1:05-cv-01287-CCB; granting (203) Motion for Enlargement of Time Within Which to File Opposition to Motion for Class Certiﬁcation in case 1:06-cv-01863-CCB; directing that no further Extension will be granted. Signed by Judge Catherine C. Blake on 10/30/08. Associated Cases: 1:05-cv01287-CCB, 1:06-cv-01863-CCB(mcb, Deputy Clerk) (Entered: 10/31/2008)

11/12/2008

230 Status Report Submitted by Baltimore City Police Department, Mayor and City Council of the City of Baltimore, Martin O O'Malley, Leonard Hamm, Marcus Brown, Kevin Clark, Edward T. Norris, Sheila Dixon, Heron, J. Grey, Joseph Chin, Southard, Michael Pinkosz, Lolando L. Hamilton, David A. Crites, Jr, Ronald S. Mealey, Sgt. Pecha, B. Newkirk, Arnold Jones Associated Cases: 1:06-cv-01863-CCB, 1:05-cv-01287CCB(Conti, Michael) (Entered: 11/12/2008)

11/12/2008

231 STATUS REPORT by Maryland State Conference of NAACP Branches, Baltimore City Branch of the NAACP, Timothy Johnson, Tavis Crockett, Rafﬁc Scott, Kerrell K. Wright, Carol Higgs, Armondo Horsey, Jonathan Lindsay, Erin Marcus, Jeffrey Chapman, Evan Howard, Tyrone Braxton, Donald Wilson, Robert Lowery, Aaron Stoner. Associated Cases: 1:06-cv-01863-CCB, 1:05-cv-01287-CCB(Morrow, Jason) (Entered: 11/12/2008)

11/12/2008

232 STATUS REPORT (Joint) by Eric Jones, Susan Murphy. Associated Cases: 1:05-cv01287-CCB, 1:06-cv-01863-CCB(Day, Sean) (Entered: 11/12/2008)

11/14/2008

233 RESPONSE in Opposition re (181 in 1:05-cv-01287-CCB, 158 in 1:06-cv-01863-CCB) MOTION to Certify Class ﬁled by Mitchell Franks, Susan Murphy, William Jednorski. Replies due by 12/1/2008. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 27, # 27 Exhibit 28)Associated Cases: 1:05-cv-01287-CCB, 1:06-cv-01863-CCB(Brockman, William) (Entered: 11/14/2008)

11/14/2008

234 PAPERLESS ORDER APPROVING 232 Joint Status Report. A Conference Call has been set for 5:00 P.M. on DECEMBER 22, 2008. Status reports are due December 19, 2008. Mr. Day is asked to arrange for a call in number. Signed by Judge Catherine C. Blake on November 14, 2008. (Blake, Catherine) (Entered: 11/14/2008)

11/14/2008

235 Supplemental to (210 in 1:06-cv-01863-CCB) Response in Opposition to Motion,,, ﬁled by Mitchell Franks, Susan Murphy, William Jednorski (Exhibit 26 to Opposition). Associated Cases: 1:05-cv-01287-CCB, 1:06-cv-01863-CCB(Brockman, William) (Entered: 11/14/2008)

11/26/2008

236 Consent MOTION for Extension of Time to File Response/Reply by Eric Jones. Responses due by 12/15/2008 Associated Cases: 1:05-cv-01287-CCB, 1:06-cv-01863CCB(Day, Sean) (Entered: 11/26/2008)

11/26/2008 237 ORDER directing the Defendants to produce the memoranda to Plaintiffs no later than

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District of Maryland (CM/ECF Live 6.1)
December 5, 2008. Signed by Magistrate Judge Susan K. Gauvey on 11/26/08. (mcb, Deputy Clerk) (Entered: 11/26/2008)

12/01/2008 238 PAPERLESS ORDER Granting 236 Consent Motion for Extension of Time. Signed by Judge Catherine C. Blake on December 1, 2008. (Blake, Catherine) (Entered: 12/01/2008)

12/04/2008

239 Emergency MOTION to Stay November 26 Order of Magistrate Judge and Order's December 5, 2008 Deadline by Mitchell Franks, Susan Murphy, William Jednorski Responses due by 12/22/2008 (Attachments: # 1 Text of Proposed Order)Associated Cases: 1:05-cv-01287-CCB, 1:06-cv-01863-CCB(Brockman, William) (Entered: 12/04/2008)

12/05/2008

241 ORDER granting 239 Motion of Defendants to Stay; directing that the November 26, 2008 Order and its December 5, 2008 deadline for disclosure are STAYED until further Order of the Court; Defendants' objections are due December 12, 2008. Signed by Judge Catherine C. Blake on 12/5/08. (mcb, Deputy Clerk) (Entered: 12/05/2008)

12/05/2008

242 Consent MOTION for Leave to File Excess Pages by Eric Jones Responses due by 12/22/2008 Associated Cases: 1:05-cv-01287-CCB, 1:06-cv-01863-CCB(Day, Sean) (Entered: 12/05/2008)

12/05/2008

243 REPLY to Response to Motion re (158 in 1:06-cv-01863-CCB) MOTION to Certify Class ﬁled by Kevin Adams, Tonia Bowie, Anthony Haig, Gary Saunders, Michael Washington, Eric Jones, Dana T. West, Aaron Ross. (Attachments: # 1 Exhibit Index of Exhibits, # 2 Exhibit 108, # 3 Exhibit 109, # 4 Exhibit 110, # 5 Exhibit 111, # 6 Exhibit 112, # 7 Exhibit 113, # 8 Exhibit 114, # 9 Exhibit 115, # 10 Exhibit 117, # 11 Exhibit 140, # 12 Exhibit 141, # 13 Exhibit 142, # 14 Exhibit 143, # 15 Exhibit 144, # 16 Exhibit 145, # 17 Exhibit 146, # 18 Exhibit 147, # 19 Exhibit 148, # 20 Exhibit 149, # 21 Exhibit 150, # 22 Exhibit 151, # 23 Exhibit 152, # 24 Exhibit 153, # 25 Exhibit 154, # 26 Exhibit 155, # 27 Exhibit 156, # 28 Exhibit 157, # 29 Exhibit 158)Associated Cases: 1:05-cv-01287-CCB, 1:06-cv-01863-CCB(Day, Sean) (1 paper copy submitted to Chambers on 12/8/08) Modiﬁed on 12/8/2008 (mcb, Deputy Clerk). (Entered: 12/05/2008)

12/08/2008

244 PAPERLESS ORDER granting (242)Consent Motion for Leave to File Reply in Excess of 25 Pages in case 1:05-cv-01287-CCB; granting (216) Motion for Leave to File Excess Pages in case 1:06-cv-01863-CCB. Signed by Judge Catherine C. Blake on 12/8/08. Associated Cases: 1:05-cv-01287-CCB, 1:06-cv-01863-CCB(Blake, Catherine) (Entered: 12/08/2008)

12/13/2008

245 APPEAL OF MAGISTRATE JUDGE DECISION to District Court by Mitchell Franks, Susan Murphy, William Jednorski (Attachments: # 1 Memorandum in Support) (Brockman, William) (Entered: 12/13/2008)

12/15/2008

246 NOTICE of Appearance by George A Nilson on behalf of Baltimore City Police Department, Mayor and City Council of the City of Baltimore, Martin O O'Malley, Leonard Hamm, Marcus Brown, Kevin Clark, Edward T. Norris, Sheila Dixon, Heron, J. Grey, Joseph Chin, Southard, Michael Pinkosz, Lolando L. Hamilton, David A. Crites, Jr, Ronald S. Mealey, Sgt. Pecha, B. Newkirk, Arnold Jones Associated Cases: 1:06-cv01863-CCB, 1:05-cv-01287-CCB(Nilson, George) (Entered: 12/15/2008)

12/16/2008 247 RESPONSE re 245 Appeal of Magistrate Judge Decision to District Court ﬁled by Eric Jones. (Day, Sean) (Entered: 12/16/2008)

12/16/2008 248 Miscellaneous Correspondence to counsel. (Blake, Catherine) (Entered: 12/16/2008)

12/19/2008 249 STATUS REPORT (Joint) by Eric Jones, Susan Murphy. Associated Cases: 1:05-cv01287-CCB, 1:06-cv-01863-CCB(Day, Sean) (Entered: 12/19/2008)

12/19/2008 250 STATUS REPORT by Maryland State Conference of NAACP Branches, Baltimore City

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12/19/2008 12/22/2008 12/22/2008 12/24/2008 12/24/2008 01/09/2009
01/14/2009
01/28/2009
02/04/2009

District of Maryland (CM/ECF Live 6.1)
Branch of the NAACP, Timothy Johnson, Tavis Crockett, Rafﬁc Scott, Kerrell K. Wright, Carol Higgs, Armondo Horsey, Jonathan Lindsay, Erin Marcus, Jeffrey Chapman, Evan Howard, Tyrone Braxton, Donald Wilson, Robert Lowery, Aaron Stoner. Associated Cases: 1:06-cv-01863-CCB, 1:05-cv-01287-CCB(Morrow, Jason) (Entered: 12/19/2008)
251 STATUS REPORT by Mitchell Franks, Susan Murphy, William Jednorski, Gary D. Maynard, State Of Maryland, Mary Ann Saar, William Smith, Mitchell Franks, Susan Murphy. Associated Cases: 1:05-cv-01287-CCB, 1:06-cv-01863-CCB(Brockman, William) (Entered: 12/19/2008)
252 Status Report Submitted by Baltimore City Police Department, Mayor and City Council of the City of Baltimore, Martin O O'Malley, Leonard Hamm, Marcus Brown, Kevin Clark, Edward T. Norris, Jemini Jones, Sheila Dixon, Heron, J. Grey, Joseph Chin, Southard, Michael Pinkosz, Lolando L. Hamilton, David A. Crites, Jr, Ronald S. Mealey, Sgt. Pecha, B. Newkirk, Arnold Jones Associated Cases: 1:06-cv-01863-CCB, 1:05-cv01287-CCB(Conti, Michael) (Entered: 12/22/2008)
Telephone Conference held on 12/22/2008 before Judge Catherine C. Blake. Associated Cases: 1:05-cv-01287-CCB, 1:06-cv-01863-CCB(mcb, Deputy Clerk) (Entered: 12/29/2008)
253 MARGINAL ORDER approving 249 JOINT Status Report ﬁled by Susan Murphy, Eric Jones; Telephone Conference scheduled for February 6, 2009. Signed by Judge Catherine C. Blake on 12/24/08. (mcb, Deputy Clerk) (Entered: 12/29/2008)
254 ORDER CONFIRMING the schedule set during the Telephone Conference on December 22, 2008. Signed by Judge Catherine C. Blake on 12/24/08. Associated Cases: 1:05-cv01287-CCB, 1:06-cv-01863-CCB(mcb, Deputy Clerk) (Entered: 12/29/2008)
255 NOTICE of Filing of LINE of State Defendants Objections to 11/26/08 Order by Magistrate Judge by Mitchell Franks, Susan Murphy, William Jednorski, Gary D. Maynard, State Of Maryland, Mary Ann Saar, William Smith, Mitchell Franks, Susan Murphy re (245 in 1:05-cv-01287-CCB) (Attachments: # 1 Exhibit 1 (NAACP Plaintiffs' Document Request), # 2 Exhibit 2 (Transcript of December 17, 2008 Deposition of Mitchell Franks))Associated Cases: 1:05-cv-01287-CCB, 1:06-cv-01863CCB(Brockman, William) Modiﬁed on 1/12/2009 (mcb, Deputy Clerk). (Entered: 01/09/2009)
256 MOTION to Compel the Depositions of Sergeants Robinson and Eames by Maryland State Conference of NAACP Branches, Baltimore City Branch of the NAACP, Timothy Johnson, Tavis Crockett, Rafﬁc Scott, Kerrell K. Wright, Carol Higgs, Armondo Horsey, Jonathan Lindsay, Erin Marcus, Jeffrey Chapman, Evan Howard, Tyrone Braxton, Donald Wilson, Robert Lowery, Aaron Stoner Responses due by 2/2/2009 (Attachments: # 1 Memorandum in Support of Motion to Compel, # 2 Text of Proposed Order, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit)Associated Cases: 1:06-cv-01863-CCB, 1:05-cv-01287-CCB(Kochtitzky Jacques, Elise) (Entered: 01/14/2009)
257 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on August 1, 2008, before Judge Gauvey. Transcriber CompuScribe. Total number of pages ﬁled: 20. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained from the Court Reporter or through PACER.. Redaction Request due 2/17/2009. Redacted Transcript Deadline set for 2/25/2009. Release of Transcript Restriction set for 4/27/2009. (cag, Deputy Clerk) (Entered: 01/28/2009)
258 STATUS REPORT by Maryland State Conference of NAACP Branches, Baltimore City Branch of the NAACP, Timothy Johnson, Tavis Crockett, Rafﬁc Scott, Kerrell K. Wright,

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02/05/2009 02/06/2009
02/06/2009 02/06/2009 02/09/2009
02/18/2009
02/23/2009
02/23/2009 02/23/2009 02/25/2009 03/06/2009 03/19/2009 03/19/2009 03/31/2009

District of Maryland (CM/ECF Live 6.1)
Carol Higgs, Armondo Horsey, Jonathan Lindsay, Erin Marcus, Jeffrey Chapman, Evan Howard, Tyrone Braxton, Donald Wilson, Robert Lowery, Aaron Stoner. Associated Cases: 1:06-cv-01863-CCB, 1:05-cv-01287-CCB(Morrow, Jason) (Entered: 02/04/2009)
259 STATUS REPORT (Joint) by Eric Jones, Susan Murphy. Associated Cases: 1:05-cv01287-CCB, 1:06-cv-01863-CCB(Day, Sean) (Entered: 02/05/2009)
260 Status Report Submitted Regarding Discovery and Motions Deadlines by William Jednorski, Gary D. Maynard, State Of Maryland, Mary Ann Saar, William Smith, Mitchell Franks, Susan Murphy Associated Cases: 1:06-cv-01863-CCB, 1:05-cv-01287CCB(Brockman, William) (Entered: 02/06/2009)
261 Miscellaneous Correspondence to counsel conﬁrming schedule discussed during conference call. (blcs, Chambers) (Entered: 02/06/2009)
262 Joint MOTION to Stay by Maryland State Conference of NAACP Branches Responses due by 2/23/2009 Associated Cases: 1:06-cv-01863-CCB, 1:05-cv-01287-CCB(Morrow, Jason) (Entered: 02/06/2009)
263 PAPERLESS ORDER Granting (262) Motion to Stay in case 1:05-cv-01287-CCB; Granting (242) Motion to Stay in case 1:06-cv-01863-CCB, as proposed. Signed by Judge Catherine C. Blake on February 9, 2009. Associated Cases: 1:06-cv-01863-CCB, 1:05-cv01287-CCB(blcs, Chambers) (Entered: 02/09/2009)
267 Motion Hearing held on 2/18/2009 re 181 MOTION to Certify Class ﬁled by Michael Washington, Gary Saunders, Tonia Bowie, Anthony Haig, Aaron Ross, Kevin Adams, David Colyns, Dana T. West, Eric Jones held before Judge Catherine C. Blake. (Court Reporter: Gail Simpkins) (kam, Deputy Clerk) (Entered: 02/24/2009)
264 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 2-18-2009, before Judge Blake. Court Reporter/Transcriber Gail Simpkins, Telephone number 410962-4536. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained from the Court Reporter or through PACER.. Redaction Request due 3/13/2009. Redacted Transcript Deadline set for 3/23/2009. Release of Transcript Restriction set for 5/21/2009. (gak, Court Reporter) (Entered: 02/23/2009)
265 MEMORANDUM OPINION. Signed by Judge Catherine C. Blake on 2/23/09. (hmls, Deputy Clerk) (Entered: 02/23/2009)
266 ORDER AFFIRMING 237 Order by Judge Susan K. Gauvey. Signed by Judge Catherine C. Blake on 2/23/09. (hmls, Deputy Clerk) (Entered: 02/23/2009)
268 NOTICE by Kevin Adams, Tonia Bowie, Anthony Haig, Gary Saunders, Michael Washington, Dana T. West, Aaron Ross Plaintiffs' Proposed Class Deﬁnitions (Day, Sean) (Entered: 02/25/2009)
269 RESPONSE re 268 Notice (Other) (Plaintiffs' Revised Proposed Class Deﬁnitions) ﬁled by Mitchell Franks, Susan Murphy, William Jednorski. (Brockman, William) (Entered: 03/06/2009)
270 MEMORANDUM. Signed by Judge Catherine C. Blake on 3/19/09. (mcb, Deputy Clerk) (Entered: 03/20/2009)
271 ORDER granting in part and denying in part 181 Motion of Plaintiffs to Certify Class as therein set forth. Signed by Judge Catherine C. Blake on 4/19/09. (mcb, Deputy Clerk) (Entered: 03/20/2009)
272 STATUS REPORT (Joint) by Baltimore City Police Department, Maryland State

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04/01/2009 04/01/2009 04/01/2009 04/02/2009 04/02/2009 04/20/2009 04/20/2009 04/21/2009 04/27/2009 04/27/2009 05/05/2009 06/01/2009 06/26/2009 06/29/2009 06/29/2009 06/30/2009 07/09/2009

District of Maryland (CM/ECF Live 6.1)
Conference of NAACP Branches. Associated Cases: 1:06-cv-01863-CCB, 1:05-cv01287-CCB(Morrow, Jason) (Entered: 03/31/2009)
273 STATUS REPORT by Eric Jones. Associated Cases: 1:05-cv-01287-CCB, 1:06-cv01863-CCB(Day, Sean) (Entered: 04/01/2009)
274 STATUS REPORT of Defendants by Mitchell Franks, Susan Murphy, William Jednorski. Associated Cases: 1:05-cv-01287-CCB, 1:06-cv-01863-CCB(Eason, Alan) (Entered: 04/01/2009)
275 STATUS REPORT , Corrected, of Defendants by Mitchell Franks, Susan Murphy, William Jednorski. Associated Cases: 1:05-cv-01287-CCB, 1:06-cv-01863-CCB(Eason, Alan) (Entered: 04/01/2009)
Telephone Conference held on 4/2/2009 before Judge Catherine C. Blake. (mcb, Deputy Clerk) (Entered: 04/02/2009)
276 ORDER CONFIRMING the dates set at the Telephone Conference on 4/2/09. Signed by Judge Catherine C. Blake on 4/2/09. (mcb, Deputy Clerk) (Entered: 04/02/2009)
277 Correspondence from Larry Johnson re: Request to be included in this class action lawsuit. (Attachments: # 1 Letter to Mr. Claiborne)(mcb, Deputy Clerk) (Entered: 04/20/2009)
278 Consent MOTION for Extension of Time to File Proposed Order by Eric Jones Responses due by 5/7/2009 (Day, Sean) (Entered: 04/20/2009)
279 PAPERLESS ORDER APPROVING 278 Consent Motion for Extension of Time until April 27, 2009 to File Proposed Order. Signed by Judge Catherine C. Blake on April 21, 2009. (Blake, Catherine) (Entered: 04/21/2009)
280 Status Report Submitted by Mitchell Franks, Susan Murphy, William Jednorski (Attachments: # 1 Text of Proposed Order)(Brockman, William) (Entered: 04/27/2009)
281 STATUS REPORT by Eric Jones. (Attachments: # 1 Text of Proposed Order)(Day, Sean) (Entered: 04/27/2009)
282 ORDER granting the State Defendants' CONSENT MOTION for an Enlargement of Time to Permit Informal Resolution of Discovery Dispoutes as therein set forth. Signed by Judge Catherine C. Blake on 5/5/09. (mcb, Deputy Clerk) (Entered: 05/05/2009)
283 PAPERLESS Correspondence: In light of the Fourth Circuit's ruling, please confer and submit your proposed schedule(s) by JUNE 26, 2009. (Blake, Catherine) (Entered: 06/01/2009)
284 Joint MOTION to Stay and for Mediation by Mitchell Franks, Susan Murphy, William Jednorski Responses due by 7/13/2009 Associated Cases: 1:05-cv-01287-CCB, 1:06-cv01863-CCB(Eason, Alan) (Entered: 06/26/2009)
285 ORDER REFERRING CASE to Magistrate Judge Paul W. Grimm for Settlement. Signed by Judge Catherine C. Blake on 6/29/09. (hml, Deputy Clerk) (Entered: 06/29/2009)
286 PAPERLESS ORDER granting 284 JOINT MOTION to Stay and for Mediation. Signed by Judge Catherine C. Blake on 6/29/09. (mcb, Deputy Clerk) (Entered: 06/29/2009)
287 ORDER SCHEDULING SETTLEMENT CONFERENCE. Signed by Magistrate Judge Paul W. Grimm on 6/30/09. (mcb, Deputy Clerk) (Entered: 06/30/2009)
Magistrate Judge Susan K. Gauvey no longer assigned to case. (mcb, Deputy Clerk) (Entered: 07/09/2009)

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09/28/2009
09/29/2009
10/26/2009 10/27/2009
11/09/2009 11/16/2009 11/16/2009 11/17/2009 12/02/2009
12/15/2009 01/14/2010 01/15/2010
01/15/2010 01/22/2010
01/29/2010 02/01/2010 02/16/2010
02/16/2010 02/17/2010

District of Maryland (CM/ECF Live 6.1)
288 Joint MOTION to Stay re 286 Order on Motion to Stay (to Extend Stay for Mediation) by Eric Jones, Susan Murphy Responses due by 10/15/2009 (Day, Sean) (Entered: 09/28/2009)
289 PAPERLESS ORDER GRANTING 288 Joint Motion to Stay this litigation until November 16, 2009. Signed by Judge Catherine C. Blake on September 29, 2009. (Blake, Catherine) (Entered: 09/29/2009)
290 Correspondence re: to Magistrate Judge Re. Attendance of Representative Plaintiffs at Mediation Conference (Day, Sean) (Entered: 10/26/2009)
291 PAPERLESS ORDER Approving Paper No. 290, Plaintiff's request to have representative plaintiffs excused from attending the settlement conference. Signed by Magistrate Judge Paul W. Grimm on 10/27/09. (Grimm, Paul)(jnf) (Entered: 10/27/2009)
Settlement Conference held on 11/9/2009 before Magistrate Judge Paul W. Grimm. (mcb, Deputy Clerk) (Entered: 11/17/2009)
292 Status Report Submitted by Mitchell Franks, Susan Murphy, William Jednorski (Eason, Alan) (Entered: 11/16/2009)
293 NOTICE by Eric Jones PLAINTIFFS POST-MEDIATION STATUS REPORT (Claiborne, William) (Entered: 11/16/2009)
294 Miscellaneous Correspondence to counsel. (Blake, Catherine) (Entered: 11/17/2009)
295 STATUS REPORT , Joint by Kevin Adams, Tonia Bowie, David Colyns, Mitchell Franks, Anthony Haig, William Jednorski, Eric Jones, Susan Murphy, Aaron Ross, Gary Saunders, Michael Washington, Dana T. West. (Eason, Alan) (Entered: 12/02/2009)
296 Miscellaneous Correspondence to counsel. (blcs, Chambers) (Entered: 12/15/2009)
Telephone Conference held on 1/14/2010 held before Judge Catherine C. Blake. (kam, Deputy Clerk) (Entered: 01/20/2010)
297 Status Report Submitted Re Scheduling Order Discussed in Jan. 14 Conference by Mitchell Franks, William Jednorski, Susan Murphy (Attachments: # 1 Text of Proposed Order)(Brockman, William) (Entered: 01/15/2010)
298 STATUS REPORT by Maryland State Conference of NAACP Branches. Associated Cases: 1:06-cv-01863-CCB, 1:05-cv-01287-CCB(Morrow, Jason) (Entered: 01/15/2010)
299 ORDER conﬁrming the schedule set at the Telephone Conference on January 14, 2010. Signed by Judge Catherine C. Blake on 1/21/10. (mcb, Deputy Clerk) (Entered: 01/22/2010)
300 Status Report Submitted by Mitchell Franks, William Jednorski, Susan Murphy (Brockman, William) (Entered: 01/29/2010)
301 NOTICE of Appearance by David Reid Moore on behalf of Mitchell Franks, William Jednorski, Susan Murphy (Moore, David) (Entered: 02/01/2010)
302 MOTION for Discovery by Eric Jones Responses due by 3/5/2010 (Attachments: # 1 Appendix Plaintiffs' Motion to Compel, # 2 Text of Proposed Order)(Day, Sean) (Entered: 02/16/2010)
Telephone Conference held on 2/16/2010 before Judge Catherine C. Blake. (Court Reporter: Gail Simpkins) (kam, Deputy Clerk) (Entered: 02/17/2010)
303 Miscellaneous Correspondence to counsel. (Blake, Catherine) (Entered: 02/17/2010)

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03/05/2010

District of Maryland (CM/ECF Live 6.1)
304 RESPONSE in Opposition re 302 MOTION for Discovery ﬁled by Mitchell Franks, William Jednorski, Susan Murphy. Replies due by 3/22/2010. (Attachments: # 1 Afﬁdavit Declaration of Kim Valenzia)(Moore, David) (Entered: 03/05/2010)

03/12/2010 305 STATUS REPORT (Joint) by Eric Jones, Susan Murphy. (Day, Sean) (Entered: 03/12/2010)

03/16/2010

306 PAPERLESS Correspondence to counsel: The conference call set for 5:00 p.m. March 16, 2010 has been RESCHEDULED for April 14, 2010 at 5:00 p.m. As in the past, counsel is asked to make arrangements for the call. (Blake, Catherine) (Entered: 03/16/2010)

03/31/2010 307 REPLY to Response to Motion re 302 MOTION for Discovery ﬁled by Eric Jones. (Day, Sean) (Entered: 03/31/2010)

04/14/2010 308 Status Report Submitted by Mitchell Franks, William Jednorski, Susan Murphy (Brockman, William) (Entered: 04/14/2010)

04/14/2010

Telephone Conference held on 4/14/2010 before Judge Catherine C. Blake. (mdw, Deputy Clerk) (Entered: 05/11/2010)

04/15/2010

309 Paperless Correspondence to counsel: A conference call is set for May 26, 2010 at 4:45 p.m. It is requested that plaintiffs counsel make arrangements for the call and provide the court with a call-in number. A status report is due by 10:00 a.m. on May 26, 2010. (Blake, Catherine) (Entered: 04/15/2010)

04/15/2010

310 ORDER granting 302 Motion of Plaintiffs for Discovery Sanctions as therein set forth. Signed by Judge Catherine C. Blake on 4/14/10. (mcb, Deputy Clerk) (Entered: 04/15/2010)

04/30/2010 311 NOTICE by Eric Jones (Expert Witness List) (Day, Sean) (Entered: 04/30/2010)

05/26/2010 312 Status Report Submitted by Mitchell Franks, William Jednorski, Susan Murphy (Brockman, William) (Entered: 05/26/2010)

05/26/2010 313 STATUS REPORT (Plaintiffs) by Eric Jones. (Attachments: # 1 Afﬁdavit Flanagan Afﬁdavit)(Day, Sean) (Entered: 05/26/2010)

05/26/2010 314 STATUS REPORT Supplement by Eric Jones. (Attachments: # 1 Exhibit Emails re. Flanagan)(Day, Sean) (Entered: 05/26/2010)

05/26/2010

Status Conference held on 5/26/2010 before Judge Catherine C. Blake. (Court Reporter: Mary Zajac) (mdw, Deputy Clerk) (Entered: 06/04/2010)

05/27/2010 315 Miscellaneous Correspondence to counsel. A status report is due June 14, 2010. (Blake, Catherine) (Entered: 05/27/2010)

06/14/2010 316 STATUS REPORT Letter by Eric Jones. (Day, Sean) (Entered: 06/14/2010)

06/14/2010 317 Status Report Submitted by Mitchell Franks, William Jednorski, Susan Murphy (Brockman, William) (Entered: 06/14/2010)

06/21/2010

318 MOTION for Relief concerning the 4/15/10 Order (Doc 310) by Eric Jones. Responses due by 7/9/2010 (Attachments: # 1 Text of Proposed Order)(Day, Sean) Modiﬁed on 6/23/2010 (mcb, Deputy Clerk). (Entered: 06/21/2010)

06/30/2010

319 Consent MOTION for Extension of Time (extend deadlines in Doc 299) by Eric Jones Responses due by 7/19/2010 (Attachments: # 1 Exhibit Exhibit A, # 2 Text of Proposed Order)(Day, Sean) (Entered: 06/30/2010)

06/30/2010 320 NOTICE by Eric Jones re 311 Notice (Other) Service of Rule 26(a)(2)(B) Report for Cook (Day, Sean) (Entered: 06/30/2010)

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321 ORDER granting 319 CONSENT Motion for Extension of Deadlines. Signed by Judge Catherine C. Blake on 6/30/10. (mcb, Deputy Clerk) (Entered: 06/30/2010)

07/02/2010

322 MOTION for Extension of Time to File Response/Reply as to 318 MOTION for Other Relief re. 4/15/10 Order (Doc 310) by Susan Murphy. Responses due by 7/19/2010 (Attachments: # 1 Text of Proposed Order)(Brockman, William) (Entered: 07/02/2010)

07/08/2010

323 PAPERLESS ORDER Granting 322 Motion for Extension of Time to File Response re 318 Motion for Other Relief. Responses due by 7/21/2010. Signed by Judge Catherine C. Blake on July 8, 2010. (Blake, Catherine) (Entered: 07/08/2010)

07/08/2010

Settlement Conference held on 7/8/2010 before Magistrate Judge Paul W. Grimm. (mcb, Deputy Clerk) (Entered: 07/08/2010)

07/08/2010

Magistrate Judge Paul W. Grimm no longer assigned to case. (mcb, Deputy Clerk) (Entered: 07/08/2010)

07/09/2010 324 NOTICE by Eric Jones re 311 Notice (Other) Service of Rule 26(a)(2)(B) Report for Kriegler (Day, Sean) (Entered: 07/09/2010)

07/14/2010

325 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 5/26/2010, before Judge Catherine C. Blake. Court Reporter/Transcriber Mary M. Zajac, Telephone number 410-962-4544. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained from the Court Reporter or through PACER... Redaction Request due 8/4/2010. Redacted Transcript Deadline set for 8/16/2010. Release of Transcript Restriction set for 10/12/2010. (mmz, Court Reporter) (Entered: 07/14/2010)

07/20/2010 326 NOTICE to Substitute Attorney Matthew Fader for David Moore and Alan Eason (Fader, Matthew) (Entered: 07/20/2010)

07/21/2010

327 RESPONSE to Motion re 318 MOTION for Other Relief re. 4/15/10 Order (Doc 310) ﬁled by Mitchell Franks, William Jednorski, Susan Murphy. Replies due by 8/9/2010. (Attachments: # 1 Exhibit A: Defendants' Supplemental Responses to Interrogatories, # 2 Exhibit B, # 3 Exhibit C)(Fader, Matthew) (Entered: 07/21/2010)

08/09/2010 328 REPLY to Response to Motion re 318 MOTION for Other Relief re. 4/15/10 Order (Doc 310) ﬁled by Gary Saunders. (Claiborne, William) (Entered: 08/09/2010)

08/16/2010 329 REQUEST for Extension of Time to File (Modify dates for parties' exchange of trialwitness designations) (Brockman, William) (Entered: 08/16/2010)

08/16/2010 330 NOTICE by Gary Saunders Service of Fact Witness List (Day, Sean) (Entered: 08/16/2010)

08/17/2010 331 MOTION to Produce Attorney Memorandum by Gary Saunders Responses due by 9/3/2010 (Attachments: # 1 Exhibit A (Privilege Log))(Day, Sean) (Entered: 08/17/2010)

08/17/2010 332 RESPONSE re 329 Request for Extension of Time to File ﬁled by Gary Saunders. (Day, Sean) (Entered: 08/17/2010)

08/20/2010

333 RESPONSE to Motion re 331 MOTION to Produce Attorney Memorandum ﬁled by Mitchell Franks, William Jednorski, Susan Murphy. Replies due by 9/7/2010. (Attachments: # 1 Afﬁdavit Declaration of Glenn T. Marrow)(Brockman, William) (Entered: 08/20/2010)

08/27/2010

334 NOTICE by Kevin Adams, Tonia Bowie, David Colyns, Anthony Haig, Eric Jones, Aaron Ross, Gary Saunders, Michael Washington, Dana T. West Notice of Name Change (Litt, Barrett) (Entered: 08/27/2010)

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District of Maryland (CM/ECF Live 6.1)
335 RESPONSE in Opposition re 318 MOTION for Other Relief re. 4/15/10 Order (Doc 310) (Supplemental Memorandum) ﬁled by Mitchell Franks, William Jednorski, Susan Murphy. Replies due by 9/17/2010. (Attachments: # 1 Exhibit ABS Excerpted Records, Sample Arrest No. 1, # 2 Exhibit ABS Excerpted Records, Sample Arrest No. 3, # 3 Exhibit ABS Excerpted Records, Sample Arrest No. 5, # 4 Exhibit ABS Excerpted Records, Sample Arrest No. 6, # 5 Exhibit ABS Excerpted Records, Sample Arrest No. 8, # 6 Exhibit ABS Excerpted Records, Sample Arrest No. 9, # 7 Exhibit ABS Excerpted Records, Sample Arrest No. 16, # 8 Exhibit ABS Excerpted Records, Sample Arrest No. 17, # 9 Exhibit ABS Excerpted Records, Sample Arrest No. 18, # 10 Exhibit ABS Excerpted Records, Sample Arrest No. 19, # 11 Exhibit ABS Excerpted Records, Sample Arrest No. 20, # 12 Exhibit ABS Excerpted Records, Sample Arrest No. 22, # 13 Exhibit ABS Excerpted Records, Sample Arrest No. 23, # 14 Exhibit ABS Excerpted Records, Sample Arrest No. 24, # 15 Exhibit ABS Excerpted Records, Sample Arrest No. 25, # 16 Exhibit ABS Excerpted Records, Sample Arrest No. 26, # 17 Exhibit ABS Excerpted Records, Sample Arrest No. 28, # 18 Exhibit ABS Excerpted Records, Sample Arrest No. 29, # 19 Exhibit ABS Excerpted Records, Sample Arrest No. 30, # 20 Exhibit ABS Excerpted Records, Sample Arrest No. 31, # 21 Exhibit ABS Excerpted Records, Sample Arrest No. 32, # 22 Exhibit ABS Excerpted Records, Sample Arrest No. 33, # 23 Exhibit ABS Excerpted Records, Sample Arrest No. 34, # 24 Exhibit ABS Excerpted Records, Sample Arrest No. 35, # 25 Exhibit ABS Excerpted Records, Sample Arrest No. 36, # 26 Exhibit ABS Excerpted Records, Sample Arrest No. 37, # 27 Exhibit No. 27 (Table of "Migrated" Bookings))(Brockman, William) (Entered: 08/31/2010)
336 RESPONSE in Opposition re 318 MOTION for Other Relief re. 4/15/10 Order (Doc 310) Reﬁled Memorandum with Exhibit 27 ﬁled by Mitchell Franks, William Jednorski, Susan Murphy. Replies due by 9/17/2010. (Attachments: # 1 Exhibit No. 27 (reﬁled as supplement; original did not upload as Paper No. 335-27))(Brockman, William) (Entered: 08/31/2010)
337 REPLY to Response to Motion re 319 Consent MOTION for Extension of Time (extend deadlines in Doc 299) (Reply in support of request to defer trial-witness designations (Re [329, 332]) ﬁled by Mitchell Franks, William Jednorski, Susan Murphy. (Brockman, William) (Entered: 08/31/2010)
338 MOTION to Strike 336 Response in Opposition to Motion, 335 Response in Opposition to Motion,,,,,,, by Gary Saunders Responses due by 9/27/2010 (Attachments: # 1 Exhibit A)(Day, Sean) (Entered: 09/10/2010)
339 MOTION for Protective Order (Expert Depositions) by Gary Saunders Responses due by 9/27/2010 (Attachments: # 1 Text of Proposed Order)(Day, Sean) (Entered: 09/10/2010)
340 MOTION for Extension of Time (Motion to Modify Interim Deadline in Expert Discovery Schedule) by Mitchell Franks, William Jednorski, Susan Murphy Responses due by 9/30/2010 (Attachments: # 1 Exhibit (June 24-30, 2010 e-mail correspondence among counsel re discovery schedule), # 2 Exhibit (August 13- September 9, 2010 e-mail correspondence among counsel re discovery schedule), # 3 Text of Proposed Order) (Brockman, William) (Entered: 09/13/2010)
341 MOTION to Shorten Time for Plaintiffs' Response to Motion to Modify Schedule (No. 340) by Mitchell Franks, William Jednorski, Susan Murphy Responses due by 9/30/2010 (Attachments: # 1 Text of Proposed Order)(Brockman, William) (Entered: 09/13/2010)
342 RESPONSE in Opposition re 339 MOTION for Protective Order (Expert Depositions) ﬁled by Mitchell Franks, William Jednorski, Susan Murphy. Replies due by 10/1/2010. (Attachments: # 1 Exhibit August 13 - September 10 e-mail correspondence among counsel, # 2 Text of Proposed Order)(Brockman, William) (Entered: 09/14/2010)

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343 RESPONSE in Opposition re 338 MOTION to Strike 336 Response in Opposition to Motion, 335 Response in Opposition to Motion,,,,,,, ﬁled by Mitchell Franks, William Jednorski, Susan Murphy. Replies due by 10/4/2010. (Brockman, William) (Entered: 09/15/2010)

09/15/2010

344 RESPONSE in Opposition re 340 MOTION for Extension of Time (Motion to Modify Interim Deadline in Expert Discovery Schedule) MOTION for Extension of Time (Motion to Modify Interim Deadline in Expert Discovery Schedule) ﬁled by Gary Saunders. Replies due by 10/4/2010. (Day, Sean) (Entered: 09/15/2010)

09/15/2010 345 Request for Conference (Brockman, William) (Entered: 09/15/2010)

09/15/2010

347 ORDER granting 331 Motion for in camera review and production of a memorandum to Plaintiffs' counsel. Signed by Judge Catherine C. Blake on 9/15/10. (dass, Deputy Clerk) (Entered: 09/16/2010)

09/16/2010

346 ORDER granting in part, denying in part 329 letter motion to modify the scheduling order re: defendants' trial-witness designations; granting 340 Motion for Extension of Time to ﬁle defense expert reports; denying as moot 341 Motion to Shorten Time; holding under advisement 339 motion of plaintiffs for protetive order pending further report from counsel. Signed by Judge Catherine C. Blake on 9/15/10. (dass, Deputy Clerk) (Entered: 09/16/2010)

09/21/2010 348 NOTICE by Gary Saunders re 339 MOTION for Protective Order (Expert Depositions) (Motion Withdrawn) (Day, Sean) (Entered: 09/21/2010)

09/22/2010

349 MARGINAL ORDER APPROVING 348 Notice to withdraw 339 motion for protective order ﬁled by Gary Saunders. Signed by Judge Catherine C. Blake on 9/22/10. (das, Deputy Clerk) (Entered: 09/23/2010)

10/05/2010

Telephone Conference held on 10/5/2010 before Judge Catherine C. Blake. (kam, Deputy Clerk) (Entered: 10/07/2010)

10/25/2010

350 MOTION to Compel (Re-Open) Sarvinas Deposition by Gary Saunders Responses due by 11/12/2010 (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Text of Proposed Order)(Day, Sean) (Entered: 10/25/2010)

10/25/2010

351 MOTION to Compel (Marrow et al. Depositions) by Gary Saunders Responses due by 11/12/2010 (Attachments: # 1 Exhibit D, # 2 Exhibit E, # 3 Text of Proposed Order)(Day, Sean) (Entered: 10/25/2010)

10/26/2010 352 Joint REQUEST for Extension of Time to File (Motion to Modify Scheduling Order) (Brockman, William) (Entered: 10/26/2010)

10/29/2010

353 MARGINAL ORDER on Letter Response in support of 352 Joint Request; APPROVING 352 Joint Request to modify scheduling order ﬁled by Susan Murphy, Mitchell Franks, William Jednorski. Signed by Judge Catherine C. Blake on 10/29/10. (das, Deputy Clerk) (Entered: 10/29/2010)

11/05/2010

354 RESPONSE to Motion re 351 MOTION to Compel (Marrow et al. Depositions), 350 MOTION to Compel (Re-Open) Sarvinas Deposition ﬁled by Mitchell Franks, William Jednorski, Susan Murphy. Replies due by 11/22/2010. (Attachments: # 1 Exhibit 1 (Transcript of L. Flanagan Deposition), # 2 Exhibit 2 (Circuit Court Docket, Harbison v. Mayor & City Council), # 3 Exhibit 3 (Declaration of Stacey M. Felder), # 4 Exhibit 4 (Declaration of Stephen Prevas), # 5 Text of Proposed Order)(Brockman, William) (Entered: 11/05/2010)

11/12/2010

355 REPLY to Response to Motion re 350 MOTION to Compel (Re-Open) Sarvinas Deposition (UNCONTESTED) ﬁled by Gary Saunders. (Day, Sean) (Entered: 11/12/2010)

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356 ORDER granting 350 Motion to reopen the deposition of Ms. Sarvinas. Signed by Judge Catherine C. Blake on 11/15/10. (dass, Deputy Clerk) (Entered: 11/15/2010)

11/19/2010

357 REPLY to Response to Motion re 351 MOTION to Compel (Marrow et al. Depositions) ﬁled by Gary Saunders. (Attachments: # 1 Text of Proposed Order)(Day, Sean) (Entered: 11/19/2010)

11/23/2010 358 Request for Conference (Brockman, William) (Entered: 11/23/2010)

11/24/2010

359 SUPPLEMENTAL re 357 REPLY re 351 MOTION to Compel (Marrow et al. Depositions) (Errata/Supplement) ﬁled by Gary Saunders. (Day, Sean) Modiﬁed on 11/29/2010 (hmls, Deputy Clerk). (Entered: 11/24/2010)

12/01/2010

360 PAPERLESS Correspondence to counsel: Judge Blake requests short status reports in preparation for the call on Friday, December 3, 2010. The letters should be submitted by 5:00 p.m. Thursday, December 2, 2010. (Blake, Catherine) (Entered: 12/01/2010)

12/02/2010

361 Status Report Submitted by Mitchell Franks, William Jednorski, Susan Murphy (Attachments: # 1 Exhibit 1 (November 30 e-mail to plaintiffs' counsel), # 2 Exhibit 2 (Superseded 2001 Post Orders for Search Ofﬁcers))(Brockman, William) (Entered: 12/02/2010)

12/02/2010 362 STATUS REPORT by Gary Saunders. (Day, Sean) (Entered: 12/02/2010)

12/03/2010

363 ORDER CONFIRMING results of 12/3/10 conference call; directing defense counsel ﬁle a revised order re: deposition of Marrow, and setting dates for motion relating to the "primary charge", defendants' motion for summary judgment, conference call, status reports. Signed by Judge Catherine C. Blake on 12/3/10. (das, Deputy Clerk) (Entered: 12/03/2010)

12/03/2010

364 Correspondence re: Submission of Proposed Order (Attachments: # 1 Text of Proposed Order (Concerning Plaintiffs' Motion, Paper No. 351))(Brockman, William) (Entered: 12/03/2010)

12/03/2010

Telephone Conference held on 12/3/2010 before Judge Catherine C. Blake. (kam, Deputy Clerk) (Entered: 12/14/2010)

12/06/2010 365 NOTICE by Mitchell Franks, William Jednorski, Susan Murphy of Automatic Substitution of Ofﬁcial-Capacity Defendant (Brockman, William) (Entered: 12/06/2010)

12/06/2010

366 MOTION for Other Relief (Motion to Alter Class Periods) by Mitchell Franks, William Jednorski, Susan Murphy Responses due by 12/23/2010 (Attachments: # 1 Exhibit 1 (Excerpt, Plaintiffs' Memorandum in Support of Motion for Class Certiﬁcation), # 2 Text of Proposed Order)(Brockman, William) (Entered: 12/06/2010)

12/09/2010

367 PAPERLESS Correspondence to counsel: THE DECEMBER 21, 2010 CONFERENCE CALL WILL BEGIN AT 4:15 P.M. RATHER THAN 4:00. (Blake, Catherine) (Entered: 12/09/2010)

12/15/2010 368 Paperless ORDER Approving re 364 Order as Proposed. Signed by Judge Catherine C. Blake on 12/15/10. (Blake, Catherine) (Entered: 12/15/2010)

12/17/2010 369 STATUS REPORT by Gary Saunders. (Day, Sean) (Entered: 12/17/2010)

12/17/2010 370 Status Report Submitted by Mitchell Franks, William Jednorski, Susan Murphy (Brockman, William) (Entered: 12/17/2010)

12/21/2010

Telephone Conference held on 12/21/2010 before Judge Catherine C. Blake. (kam, Deputy Clerk) (Entered: 12/27/2010)

12/22/2010 371 ORDER CONFIRMING results of 12/21/10 conference call re: deadlines set. Signed by

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Judge Catherine C. Blake on 12/22/10. (das, Deputy Clerk) (Entered: 12/22/2010)
372 Status Report Submitted by Mitchell Franks, William Jednorski, Susan Murphy (Brockman, William) (Entered: 01/06/2011)
373 STATUS REPORT by Gary Saunders. (Day, Sean) (Entered: 01/06/2011)
374 RESPONSE in Opposition re 366 MOTION for Other Relief (Motion to Alter Class Periods) MOTION for Other Relief (Motion to Alter Class Periods) ﬁled by Gary Saunders. Replies due by 1/24/2011. (Attachments: # 1 Appendix Defendants' 23(f) Petition)(Day, Sean) (Entered: 01/06/2011)
Telephone Conference held on 1/7/2011 before Judge Catherine C. Blake. (kam, Deputy Clerk) (Entered: 01/07/2011)
375 ORDER conﬁrming results of 1/7/11 conference call and setting brieﬁng and status deadlines. Signed by Judge Catherine C. Blake on 1/7/11. (dass, Deputy Clerk) (Entered: 01/07/2011)
376 Consent MOTION for Extension of Time to File Motion for Partial Summary Judgment Addressing Overdetention Class Claim by Susan Murphy Responses due by 1/31/2011 (Attachments: # 1 Exhibit 1 (Attachment I to July 9, 2010 Declaration of B. Kriegler), # 2 Exhibit 2 (Attachment I to January 10, 2011 Declaration of B. Kriegler), # 3 Text of Proposed Order)(Brockman, William) (Entered: 01/12/2011)
377 MOTION for Leave to File Excess Pages for memorandum in support of motion for partial summary judgment by William Jednorski Responses due by 1/31/2011 (Attachments: # 1 Text of Proposed Order)(Brockman, William) (Entered: 01/14/2011)
378 MOTION for Partial Summary Judgment by William Jednorski Responses due by 1/31/2011 (Attachments: # 1 Memorandum in Support, # 2 Exhibit W. Jednorski Declaration with Exhibits, # 3 Exhibit S. Murphy Declaration with Exhibits, # 4 Exhibit S. Buie Declaration with Exhibits, # 5 Exhibit G. Marrow Declaration with Exhibits, # 6 Exhibit J. Vanyur Report, # 7 Exhibit 1999 Division Policy Directive, # 8 Exhibit April 2010 L. Flanagan Afﬁdavit, # 9 Exhibit August 2005 Booking Process Plan, # 10 Exhibit J. Deibel Afﬁdavit, # 11 Exhibit W. Jednorski Dep. Tr., # 12 Exhibit S. Murphy Dep. Tr., # 13 Exhibit W. France Dep. Tr., # 14 Exhibit L. Flanagan Dep. Tr., # 15 Exhibit W. Smith Dep. Tr., # 16 Exhibit W. Cook Dep. Tr., # 17 Exhibit D. Becketts Dep. Tr., # 18 Exhibit J. Bracey Dep. Tr., # 19 Exhibit A. Chambers Dep. Tr., # 20 Exhibit W. Hopkins Dep. Tr., # 21 Exhibit O Mewborn Dep. Tr., # 22 Exhibit L. Quickley Dep. Tr., # 23 Exhibit D. Trotman Dep. Tr., # 24 Exhibit T. Brownlee Dep. Tr., # 25 Exhibit C. Moss Dep. Tr., # 26 Exhibit A. Reid Dep. Tr., # 27 Exhibit D. Watties Dep. Tr., # 28 Exhibit T. Wilson Dep. Tr., # 29 Exhibit A. Harris Dep. Tr., # 30 Exhibit D. Barrett Dep. Tr., # 31 Exhibit L. Bradley Dep. Tr., # 32 Exhibit M. Diggs Dep. Tr., # 33 Exhibit C. Giles Dep. Tr., # 34 Exhibit M. Reaves Dep. Tr., # 35 Exhibit J. Shields Dep. Tr., # 36 Exhibit G. Childs Dep. Tr., # 37 Exhibit E. Coulter Dep. Tr., # 38 Exhibit V. Irvine Dep. Tr., # 39 Exhibit K. Estep Dep. Tr., # 40 Exhibit A. Powell Dep. Tr., # 41 Exhibit C. Winchester Dep. Tr., # 42 Exhibit D. Bain Dep. Tr., # 43 Exhibit E. Bush Dep. Tr., # 44 Exhibit S. Jones Dep. Tr., # 45 Exhibit M. Salifu Dep. Tr., # 46 Exhibit D. Sisco-Watts Dep. Tr., # 47 Exhibit T. White Dep. Tr., # 48 Exhibit T. White Dep. Tr., # 49 Exhibit L. Whitley Dep. Tr., # 50 Exhibit C. Norﬂeet Dep. Tr., # 51 Exhibit J. Sorrell Dep. Tr., # 52 Exhibit A. Hart Dep. Tr., # 53 Exhibit S. Irvine Dep. Tr., # 54 Exhibit K. Blackmon Dep. Tr., # 55 Exhibit K. Sarvinas Dep. Tr., # 56 Exhibit D. Sharpe Dep. Tr., # 57 Exhibit L. Taylor Dep. Tr., # 58 Exhibit B. Stevenson Dep. Tr., # 59 Exhibit D. Banks Dep. Tr., # 60 Exhibit L. Jones Dep. Tr., # 61 Exhibit B. Martin Dep. Tr., # 62 Exhibit Plaintiff's Fact Witness Designations, # 63 Exhibit G. Marrow Dep. Tr., # 64 Exhibit D. West Dep. Tr., # 65 Exhibit T. Bowie Dep. Tr., # 66 Exhibit A. Haig Dep. Tr., # 67 Exhibit A. Ross Dep.

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District of Maryland (CM/ECF Live 6.1)
Tr., # 68 Exhibit G. Saunders Dep. Tr., # 69 Exhibit M. Washington Dep. Tr., # 70 Text of Proposed Order)(Brockman, William) Modiﬁed on 1/18/2011 (hmls, Deputy Clerk). (Entered: 01/14/2011)
379 MOTION for Partial Summary Judgment by Susan Murphy Responses due by 1/31/2011 (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Brockman, William) (Entered: 01/14/2011)
380 (FILED IN ERROR - DISCOVERY) NOTICE by Gary Saunders re reports of Kriegler, Laye, and Nichols (Day, Sean) Modiﬁed on 1/18/2011 (hmls, Deputy Clerk). (Entered: 01/14/2011)
381 PAPERLESS ORDER Granting 376 Motion for Extension of brieﬁng schedule, as proposed. Signed by Judge Catherine C. Blake on January 18, 2011. (Blake, Catherine) (Entered: 01/18/2011)
382 Consent MOTION for Extension of Time to File Motion for Partial Summary Judgment by Susan Murphy Responses due by 2/7/2011 (Attachments: # 1 Text of Proposed Order) (Brockman, William) (Entered: 01/19/2011)
383 PAPERLESS ORDER Granting 377 Motion for Leave to File Excess Pages. Counsel are reminded that any document over 15 pages should also be provided in paper form to Judge Blake. Signed by Judge Catherine C. Blake on January 20, 2011. (Blake, Catherine) (Entered: 01/20/2011)
384 PAPERLESS ORDER Granting 382 Motion for Extension of Time through January 28, 2011. Signed by Judge Catherine C. Blake on January 20, 2011. (Blake, Catherine) (Entered: 01/20/2011)
385 Status Report Submitted by William Jednorski, Susan Murphy (Brockman, William) (Entered: 01/25/2011)
386 STATUS REPORT by Gary Saunders. (Day, Sean) (Entered: 01/25/2011)
387 Paperless Correspondence to counsel: The conference call set for January 27, 2011 is CANCELLED. An new date after 2/18/11 will be set. (Blake, Catherine) (Entered: 01/26/2011)
388 Miscellaneous Correspondence to counsel. (blcs, Chambers) (Entered: 01/28/2011)
389 Consent MOTION for Extension of Time by Susan Murphy Responses due by 2/14/2011 (Attachments: # 1 Text of Proposed Order)(Brockman, William) (Entered: 01/28/2011)
390 REPLY to Response to Motion re 366 MOTION for Other Relief (Motion to Alter Class Periods) MOTION for Other Relief (Motion to Alter Class Periods) ﬁled by Mitchell Franks, William Jednorski, Susan Murphy. (Attachments: # 1 Exhibit Ex. 1, Buie Declaration with Attachments)(Fader, Matthew) (Entered: 01/28/2011)
391 PAPERLESS ORDER Granting 389 Motion for Extension of Time. Signed by Judge Catherine C. Blake on January 28, 2011. (Blake, Catherine) (Entered: 01/28/2011)
392 MOTION for Partial Summary Judgment as to Count 4 of Fourth Amended Complaint by Susan Murphy Responses due by 2/17/2011 (Attachments: # 1 Memorandum in Support, # 2 Exhibit 70 (L. Flanagan Dep. Tr.), # 3 Exhibit 71 (2005 CJCC Report), # 4 Exhibit 72 (M. Franks Dep. Tr.), # 5 Exhibit 73 (D. Parrish Report), # 6 Exhibit 74 (T. Wilson Dep. Tr.), # 7 Exhibit 75 (D. Becketts Dep. Tr.), # 8 Exhibit 76 (W. Smith Dep. Tr.), # 9 Exhibit 77 (C. Moss Dep. Tr.), # 10 Exhibit 78 (N. Finegar Ltr. to J. Glynn), # 11 Exhibit 79 (S. Murphy Mem. to H. Ray), # 12 Exhibit 80 (H. Ray Afﬁdavit), # 13 Exhibit 81 (Delay Field Entries in Sample Booking Records), # 14 Exhibit 82 (Booking Lt. Post Order), #

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15 Exhibit 83 (Booking Shift Commander Post Order), # 16 Exhibit 84 (Booking Lead Sergeant Post Order), # 17 Exhibit 85 (J. Shields Dep. Tr.), # 18 Exhibit 86 (TRO in Rodney v. Franks, et al.), # 19 Exhibit 87 (Sept. 29, 2005 Opinion, Rodney v. Franks, et al.), # 20 Exhibit 88 (May 10, 2005 Baltimore Sun Article), # 21 Exhibit 89 (City of Baltimore Motion, Rodney v. Franks, et al.), # 22 Exhibit 90 (April 26, 2005 Baltimore Sun Article, # 23 Exhibit 91 (April 28, 2005 Baltimore Sun Article, # 24 Exhibit 92 (City of Baltimore Proposed Reforms, Rodney v. Franks, et al.), # 25 Exhibit 93 (Amended Complaint, Rodney v. Franks, et al.), # 26 Exhibit 94 (B. Kriegler Dep. Tr.), # 27 Exhibit 95 (K. Nichols Dep. Tr.), # 28 Exhibit 96 (Attachment C to Jan. 11, 2011 Kriegler Declaration), # 29 Text of Proposed Order)(Brockman, William) (Entered: 01/31/2011)
393 Supplemental to 392 MOTION for Partial Summary Judgment as to Count 4 of Fourth Amended Complaint ﬁled by Susan Murphy (Errata Correcting Numbers Stated for Six Categories of Booking Records in Section III.A. of Memorandum in Support of Motion). (Attachments: # 1 Exhibit 1 (List of Booking Records Categorically Excluded as Involving Overdetentions))(Brockman, William) (Entered: 02/14/2011)
394 Consent MOTION for Extension of Time to File Response/Reply as to 392 MOTION for Partial Summary Judgment as to Count 4 of Fourth Amended Complaint, 378 MOTION for Partial Summary Judgment, 379 MOTION for Partial Summary Judgment by Gary Saunders. Responses due by 3/7/2011 (Day, Sean) (Entered: 02/16/2011)
395 PAPERLESS ORDER Granting 394 Motion for Extension of Time to File Response re 378 Motion for Partial Summary Judgment; 379 Motion for Partial Summary Judgment; and 392 Motion for Partial Summary Judgment. Responses due by 3/2/2011. Signed by Judge Catherine C. Blake on February 17, 2011. (Blake, Catherine) (Entered: 02/17/2011)
396 Status Report Submitted by William Jednorski, Susan Murphy (Brockman, William) (Entered: 02/23/2011)
397 STATUS REPORT (and Suggestion of Rescheduling) by Gary Saunders. (Day, Sean) (Entered: 02/23/2011)
398 PAPERLESS Correspondence to counsel: Please be advised the 9:15 a.m. conference call on February 25, 2011 is POSTPONED. Counsel will be contacted to set a new date. (Blake, Catherine) (Entered: 02/24/2011)
399 Consent MOTION for Leave to File Excess Pages by Gary Saunders Responses due by 3/21/2011 (Day, Sean) (Entered: 03/02/2011)
400 RESPONSE in Opposition re 378 MOTION for Partial Summary Judgment, 379 MOTION for Partial Summary Judgment ﬁled by Gary Saunders. Replies due by 3/21/2011. (Attachments: # 1 Appendix TOC, # 2 Appendix Index of Exhibits, # 3 Exhibit 102.1, # 4 Exhibit 104.1, # 5 Exhibit 105.1, # 6 Exhibit 110 (excerpt), # 7 Exhibit 111 (excerpt), # 8 Exhibit 113 (excerpt), # 9 Exhibit 117 (excerpt), # 10 Exhibit 129, # 11 Exhibit 141 (excerpt), # 12 Exhibit 143 (excerpt), # 13 Exhibit 150 (excerpt), # 14 Exhibit 151 (excerpt), # 15 Exhibit 152.1, # 16 Exhibit 154 (excerpt), # 17 Exhibit 161 (excerpt), # 18 Exhibit 162 (excerpt), # 19 Exhibit 163 (excerpt), # 20 Exhibit 164 (excerpt), # 21 Exhibit 165 (except), # 22 Exhibit 166 (excerpt), # 23 Exhibit 167 (excerpt), # 24 Exhibit 168 (except), # 25 Exhibit 169 (excerpt), # 26 Exhibit 170 (excerpt), # 27 Exhibit 171, # 28 Exhibit 172 (excerpt), # 29 Exhibit 173 (excerpt), # 30 Exhibit 174 (excerpt), # 31 Exhibit 175 (excerpt), # 32 Exhibit 176 (excerpt), # 33 Exhibit 201 (excerpt), # 34 Exhibit 202 (excerpt), # 35 Exhibit 204 (excerpt), # 36 Exhibit 205 (excerpt), # 37 Exhibit 206 (excerpt), # 38 Exhibit 207 (excerpt), # 39 Exhibit 209 (excerpt), # 40 Exhibit 211 (excerpt), # 41 Exhibit 212 (excerpt), # 42 Exhibit 213 (excerpt), # 43 Exhibit 214 (excerpt), # 44 Exhibit 215, # 45 Exhibit 215.1, # 46 Exhibit 215.1-A, # 47 Exhibit 215.1B, # 48 Exhibit 221, # 49 Exhibit 222, # 50 Exhibit 223, # 51 Exhibit 223-A, # 52 Exhibit

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District of Maryland (CM/ECF Live 6.1)
224, # 53 Exhibit 225, # 54 Exhibit 231, # 55 Exhibit 232 (excerpt), # 56 Exhibit 241, # 57 Exhibit 241.1, # 58 Exhibit 251, # 59 Exhibit 272 (excerpt), # 60 Exhibit 273, # 61 Exhibit 301, # 62 Exhibit 153 (excerpt), # 63 Text of Proposed Order)(Day, Sean) (Entered: 03/02/2011)
401 Consent MOTION for Extension of Time to File Response/Reply as to 392 MOTION for Partial Summary Judgment as to Count 4 of Fourth Amended Complaint by Gary Saunders. Responses due by 3/21/2011 (Day, Sean) (Entered: 03/02/2011)
402 PAPERLESS ORDER Granting 399 Consent Motion for Leave to File Excess Pages. Signed by Judge Catherine C. Blake on March 3, 2011. (Blake, Catherine) (Entered: 03/03/2011)
403 PAPERLESS ORDER Granting 401 Consent Motion for Extension of Time until March 23, 2011 to File Response re 378 , 379 , 392 . Signed by Judge Catherine C. Blake on March 3, 2011. (Blake, Catherine) (Entered: 03/03/2011)
404 EMERGENCY MOTION of Gary Saunders to withdraw his 400 Combined Opposition to Defendants' motions for summary judgment and to ﬁle an amended and re-stated opposition(Day, Sean) Modiﬁed on 3/11/2011 (das, Deputy Clerk). (Entered: 03/10/2011)
405 RESPONSE to Motion re 404 Emergency Ex Parte MOTION re Document 400 ﬁled by William Jednorski, Susan Murphy. Replies due by 3/31/2011. (Attachments: # 1 Exhibit 1 (Jan. 24, 2011 e-mail correspondence), # 2 Exhibit 2 (Feb. 16, 2011 e-mail correspondence), # 3 Exhibit 3 (March 1, 2011 e-mail correspondence), # 4 Exhibit 4 (March 10, 2011 e-mail correspondence), # 5 Exhibit 5 (March 9, 2011 e-mail correspondence), # 6 Text of Proposed Order (Alternative 1), # 7 Text of Proposed Order (Alternative 2))(Brockman, William) (Entered: 03/14/2011)
406 PAPERLESS Correspondence: Counsel are requested to submit proposed dates for the next status conference call in this case. Thank you. (Blake, Catherine) (Entered: 03/15/2011)
407 Correspondence re: (Proposed Order per 3.17.11 Status Conference) (Day, Sean) (Entered: 03/17/2011)
Telephone Conference held on 3/17/2011 before Judge Catherine C. Blake. (kam, Deputy Clerk) (Entered: 03/21/2011)
408 ORDER SETTING Summary Judgment Schedule per 3/17/11 Status Conference. Signed by Judge Catherine C. Blake on 3/18/11. (das, Deputy Clerk) (Entered: 03/18/2011)
409 RESPONSE in Opposition re 392 MOTION for Partial Summary Judgment as to Count 4 of Fourth Amended Complaint ﬁled by Gary Saunders. Replies due by 4/21/2011. (Attachments: # 1 Table of Contents, # 2 Index of Exhibits, # 3 Exhibit 202-B, # 4 Exhibit 252, # 5 Exhibit 252 Attachment A, # 6 Exhibit 302, # 7 Exhibit 311)(Day, Sean) (Entered: 04/04/2011)
410 MOTION for Extension of Time by Kevin Adams Responses due by 4/21/2011 (Attachments: # 1 Text of Proposed Order)(Claiborne, William) (Entered: 04/04/2011)
411 RESPONSE in Opposition to defendants motion for summary judgment on strip search claim (amended and restated) ﬁled by Eric Jones. Replies due by 4/22/2011. (Attachments: # 1 Exhibit redlined version of amended and re-stated opposition) (Claiborne, William) (Entered: 04/05/2011)
412 NOTICE by Eric Jones re 411 Response in Opposition to Motion, (Attachments: # 1 Exhibit exhibits attempted)(Claiborne, William) (Entered: 04/05/2011)

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413 PAPERLESS ORDER Granting 410 Motion for Extension of Time. Signed by Judge Catherine C. Blake on April 5, 2011. (Blake, Catherine) (Entered: 04/05/2011)
414 Supplemental to 411 Response in Opposition to Motion, ﬁled by Gary Saunders exhibit # 322. (Claiborne, William) (Entered: 04/05/2011)
415 Supplemental to 411 Response in Opposition to Motion, ﬁled by Gary Saunders . (Claiborne, William) (Entered: 04/05/2011)
416 Supplemental to 411 Response in Opposition to Motion, ﬁled by Gary Saunders Appendix A to Exhibit 253. (Claiborne, William) (Entered: 04/05/2011)
417 Supplemental to 411 Response in Opposition to Motion, ﬁled by Gary Saunders Appendix B to Exhibit 253. (Claiborne, William) (Entered: 04/05/2011)
418 Supplemental to 411 Response in Opposition to Motion, ﬁled by Gary Saunders Appendix C to Exhibit 253. (Claiborne, William) (Entered: 04/05/2011)
419 Supplemental to 411 Response in Opposition to Motion, ﬁled by Gary Saunders Appendix D to Exhibit 253. (Claiborne, William) (Entered: 04/05/2011)
420 Consent REQUEST for Extension of Time to File Reply Memoranda in Support of Motions for Summary Judgment (Brockman, William) (Entered: 04/08/2011)
421 PAPERLESS ORDER APPROVING 420 Consent Request for Extension of Time as proposed. Signed by Judge Catherine C. Blake on April 8, 2011. (Blake, Catherine) (Entered: 04/08/2011)
422 (WITHDRAWN SEE ECF 464 ) MOTION to Amend/Correct 146 Amended Complaint, (and to Intervene) by Gary Saunders Responses due by 5/23/2011 (Attachments: # 1 Exhibit 30, # 2 Exhibit 138, # 3 Appendix 5A Complaint (Marked), # 4 Appendix 5A Complaint (Clean))(Day, Sean) Modiﬁed on 4/26/2013 (aos, Deputy Clerk). (Entered: 05/04/2011)
423 MOTION for Extension of Time to File Response/Reply as to 409 Response in Opposition to 392 Motion, by Susan Murphy. Responses due by 6/9/2011 (Attachments: # 1 Text of Proposed Order)(Brockman, William) Modiﬁed on 5/24/2011 (dass, Deputy Clerk). (Entered: 05/23/2011)
424 RESPONSE in Opposition re 422 MOTION to Amend/Correct 146 Amended Complaint, (and to Intervene) MOTION to Amend/Correct 146 Amended Complaint, (and to Intervene) ﬁled by Mitchell Franks, William Jednorski, Susan Murphy. Replies due by 6/9/2011. (Attachments: # 1 Text of Proposed Order)(Fader, Matthew) (Entered: 05/23/2011)
425 PAPERLESS ORDER Granting 423 Motion for Extension of Time to File Reply re 392 Motion for Partial Summary Judgment. Replies due by 6/9/2011. Signed by Judge Catherine C. Blake on May 24, 2011. (Blake, Catherine) (Entered: 05/24/2011)
426 RESPONSE in Opposition re 422 MOTION to Amend/Correct 146 Amended Complaint, (and to Intervene) MOTION to Amend/Correct 146 Amended Complaint, (and to Intervene) ﬁled by Baltimore City Police Department, City of Baltimore. Replies due by 6/10/2011. (Attachments: # 1 Text of Proposed Order)(Grimes, Mark) (Entered: 05/24/2011)
427 MOTION for Extension of Time to File Response/Reply as to 411 Response in Opposition to Motion, 409 Response in Opposition to Motion, (Unopposed) by William Jednorski, Susan Murphy Responses due by 6/24/2011 (Attachments: # 1 Text of Proposed Order)(Brockman, William) (Entered: 06/07/2011)

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428 PAPERLESS ORDER Granting 427 Motion for Extension of Time through June 17, 2011 to File Reply re 378 , 392 , 379 . Signed by Judge Catherine C. Blake on June 8, 2011. (Blake, Catherine) (Entered: 06/08/2011)
429 REPLY to Response to Motion re 422 MOTION to Amend/Correct 146 Amended Complaint, (and to Intervene) MOTION to Amend/Correct 146 Amended Complaint, (and to Intervene) ﬁled by Gary Saunders. (Day, Sean) (Entered: 06/09/2011)
430 MOTION for Extension of Time to File Reply as to 409 Response in Opposition to 392 MOTION for Partial Summary Judgment as to Count 4 of Fourth Amended Complaint by William Jednorski and Susan Murphy. (Attachments: # 1 Text of Proposed Order) (Brockman, William) Modiﬁed on 6/20/2011 (dass, Deputy Clerk). (Entered: 06/17/2011)
431 REPLY to Response to Motion re 379 MOTION for Partial Summary Judgment, 378 MOTION for Partial Summary Judgment ﬁled by William Jednorski, Susan Murphy. (Attachments: # 1 Exhibit Ex. 97 (Giles Dep), # 2 Exhibit Ex. 98 (Coulter Dep), # 3 Exhibit Ex. 99 (Felder Decl), # 4 Exhibit Ex. 100 (Prevas Decl), # 5 Exhibit Ex. 101 (Cook Dep), # 6 Exhibit Ex. 102 (Ross Dep))(Fader, Matthew) (Entered: 06/17/2011)
432 PAPERLESS ORDER Granting 430 Motion for Extension of Time to File Reply re 392 Motion for Partial Summary Judgment. Replies due by 6/20/2011. Signed by Judge Catherine C. Blake on June 20, 2011. (Blake, Catherine) (Entered: 06/20/2011)
433 REPLY to Response to Motion re 392 MOTION for Partial Summary Judgment as to Count 4 of Fourth Amended Complaint ﬁled by Susan Murphy. (Attachments: # 1 Exhibit 103 (Arrestee Booking Records), # 2 Exhibit 104 (Arrestee Booking Records), # 3 Exhibit 105 (Arrestee Booking Records), # 4 Exhibit 106 (Arrestee Booking Records), # 5 Exhibit 107 (Arrestee Booking Records), # 6 Exhibit 108 (Arrestee Booking Records)) (Brockman, William) (Entered: 06/21/2011)
434 NOTICE of Change of Address by Sean Robert Day (Day, Sean) (Entered: 11/18/2011)
435 Miscellaneous Correspondence to counsel. A status report is requested by April 20, 2012. (Blake, Catherine) (Entered: 04/03/2012)
436 STATUS REPORT (Joint) by Mitchell Franks, William Jednorski, Susan Murphy, Gary Saunders. (Day, Sean) (Entered: 04/19/2012)
437 PAPERLESS ORDER re 436 Status Report APPROVED. Signed by Judge Catherine C. Blake on 4/26/12. (Blake, Catherine) (Entered: 04/27/2012)
438 Supplemental to 411 Response in Opposition to Motion, ﬁled by Gary Saunders re. Florence decision. (Day, Sean) (Entered: 05/08/2012)
439 RESPONSE re 438 Supplemental (Defendants' Supplemental Memorandum in Support of Pending Motions for Summary Judgment) ﬁled by William Jednorski, Susan Murphy. (Attachments: # 1 Exhibit 111 (T. Wilson Declaration), # 2 Exhibit 112 (T. White Deposition Excerpt), # 3 Exhibit 113 (L. Jones Deposition Excerpt), # 4 Exhibit 114 (W. Cook Deposition Excerpt), # 5 Exhibit 115 (W. Smith Deposition Excerpt), # 6 Exhibit 116 (S. Felder Declaration), # 7 Exhibit 116, Tab A, # 8 Exhibit 116, Tab B, # 9 Exhibit 116, Tab C, # 10 Exhibit 116, Tab D, # 11 Exhibit 116, Tab E, # 12 Exhibit 116, Tab F, # 13 Exhibit 116, Tab G, # 14 Exhibit 116, Tab H)(Brockman, William) (Entered: 05/22/2012)
440 Miscellaneous Correspondence to counsel. (Blake, Catherine) (Entered: 05/31/2012)
441 REPLY to Response to Motion re 422 MOTION to Amend/Correct 146 Amended Complaint, (and to Intervene) Reply Memo re Florence ﬁled by Gary Saunders.

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01/22/2013 03/05/2013 03/05/2013 03/15/2013 03/15/2013 03/15/2013 03/18/2013 03/19/2013 03/21/2013

District of Maryland (CM/ECF Live 6.1)
(Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E) (Day, Sean) (Entered: 05/31/2012)
442 Miscellaneous Correspondence to counsel scheduling a motions hearing. (Blake, Catherine) (Entered: 06/01/2012)
443 PAPERLESS Correspondence to counsel: Please advise the Court how you would like to divide the time for the arguments July 19, 2012 and who will be addressing which motions. (Blake, Catherine) (Entered: 07/16/2012)
444 Correspondence re: July 19, 2012 Hearing (Fader, Matthew) (Entered: 07/17/2012)
445 Motion Hearing held on 7/27/2012 re 392 MOTION for Partial Summary Judgment as to Count 4 of Fourth Amended Complaint ﬁled by Susan Murphy, 378 MOTION for Partial Summary Judgment ﬁled by William Jednorski, 379 MOTION for Partial Summary Judgment ﬁled by Susan Murphy before Judge Catherine C. Blake. (Court Reporter: Gail Simpkins) (kam, Deputy Clerk) (Entered: 07/27/2012)
446 Memorandum re 378 MOTION for Partial Summary Judgment, 379 MOTION for Partial Summary Judgment (Supplement re Wamble Case) ﬁled by Gary Saunders. (Day, Sean) (Entered: 07/27/2012)
447 NOTICE by William Jednorski, Susan Murphy re 378 MOTION for Partial Summary Judgment, 379 MOTION for Partial Summary Judgment (Notice of Supplemental Authority) (Brockman, William) (Entered: 12/14/2012)
448 RESPONSE re 446 Memorandum, 441 Reply to Response to Motion, 438 Supplemental, 447 Notice (Other) (additional post-Florence caselaw) ﬁled by Gary Saunders. (Attachments: # 1 Appendix US v Morris (6th Cir 2012))(Day, Sean) (Entered: 12/19/2012)
449 NOTICE by William Jednorski, Susan Murphy re 378 MOTION for Partial Summary Judgment, 379 MOTION for Partial Summary Judgment (Notice of Supplemental Authority) (Brockman, William) (Entered: 01/22/2013)
450 MEMORANDUM. Signed by Judge Catherine C. Blake on 3/5/13. (aos, Deputy Clerk) (Entered: 03/05/2013)
451 ORDER granting 378 Motion for Partial Summary Judgment; granting 379 Motion for Partial Summary Judgment. Signed by Judge Catherine C. Blake on 3/5/13. (aos, Deputy Clerk) (Entered: 03/05/2013)
452 Status Report Submitted by Mitchell Franks, William Jednorski, Susan Murphy (Brockman, William) (Entered: 03/15/2013)
453 NOTICE by Susan Murphy re 392 MOTION for Partial Summary Judgment as to Count 4 of Fourth Amended Complaint (Notice of Supplemental Authority) (Brockman, William) (Entered: 03/15/2013)
454 Consent MOTION for Extension of Time to File Status Report by Gary Saunders Responses due by 4/1/2013 (Day, Sean) (Entered: 03/15/2013)
455 PAPERLESSS ORDER Granting [No. 454] consent motion for extension of time to ﬁle status report. Signed by Judge Catherine C. Blake on March 18, 2013. (Blake, Catherine) (Entered: 03/18/2013)
456 STATUS REPORT by Gary Saunders. (Day, Sean) (Entered: 03/19/2013)
457 PAPERLESS ORDER APPROVING 456 Status Report. An updated Status Report is due April 22, 2013. Signed by Judge Catherine C. Blake on March 21, 2013. (Blake,

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District of Maryland (CM/ECF Live 6.1)
Catherine) (Entered: 03/21/2013)
458 MOTION to Withdraw as Attorney (Jones and Colyns) by David Colyns, Eric Jones Responses due by 5/9/2013 (Day, Sean) (Entered: 04/22/2013)
459 Consent MOTION to Withdraw 422 MOTION to Amend/Correct 146 Amended Complaint, (and to Intervene) by Gary Saunders Responses due by 5/9/2013 (Day, Sean) (Entered: 04/22/2013)
460 STIPULATION of Dismissal (Counts 3 and 11) by Kevin Adams, Anthony Haig, Aaron Ross, Gary Saunders, Michael Washington, Dana T. West. (Day, Sean) (Entered: 04/22/2013)
461 STIPULATION of Dismissal (Defendant Franks) by Kevin Adams, Tonia Bowie, Anthony Haig, Aaron Ross, Gary Saunders, Michael Washington, Dana T. West. (Day, Sean) (Entered: 04/22/2013)
462 STATUS REPORT by Kevin Adams, Tonia Bowie, Anthony Haig, Aaron Ross, Gary Saunders, Michael Washington, Dana T. West. (Day, Sean) (Entered: 04/22/2013)
463 STATUS REPORT Supplement by William Jednorski, Susan Murphy. (Fader, Matthew) (Entered: 04/22/2013)
464 MARGINAL ORDER approving 459 Consent MOTION to Withdraw 422 MOTION to Amend/Correct 146 Amended Complaint, (and to Intervene). Signed by Judge Catherine C. Blake on 4/25/13. (aos, Deputy Clerk) (Entered: 04/26/2013)
465 MARGINAL ORDER approving 460 STIPULATION of Dismissal (Counts 3 and 11). Signed by Judge Catherine C. Blake on 4/25/2013. (aos, Deputy Clerk) (Entered: 04/26/2013)
466 MARGINAL ORDER approving 461 STIPULATION of Dismissal (Defendant Franks). Signed by Judge Catherine C. Blake on 4/25/2013. (aos, Deputy Clerk) (Entered: 04/26/2013)
467 ORDER granting 458 Motion to Withdraw as Attorney. Attorney Barrett S Litt; William Charles Claiborne, III and Sean Robert Day terminated. Signed by Judge Catherine C. Blake on 4/26/13. (aos, Deputy Clerk) (Entered: 04/29/2013)
468 MOTION to Dismiss Claims of Plaintiffs Eric Jones and David Colyns by William Jednorski, Susan Murphy Responses due by 5/20/2013 (Attachments: # 1 Exhibit Notice of Depositions Upon Oral Examination, # 2 Text of Proposed Order)(Nunez Bellamy, Consuelo) (Entered: 05/01/2013)
469 Rule 12/56 letter mailed to Eric Jones and David Colyns. (Attachments: # 1 Rule 12/56 letter)(c/m 5/2/2013 aos, Deputy Clerk) (Entered: 05/02/2013)
470 Mail Returned as Undeliverable. Mail sent to David Colyns. (Attachments: # 1 1st page of Ret mail) (aos, Deputy Clerk) (Entered: 05/13/2013)
471 ORDER granting 468 MOTION to Dismiss Claims of Plaintiffs Eric Jones and David Colyns with Prejudice. Signed by Judge Catherine C. Blake on 5/22/2013. (aos, Deputy Clerk) (Entered: 05/23/2013)
472 MOTION for Entry of Judgment under Rule 54(b) by Anthony Haig, Gary Saunders, Michael Washington, Dana T. West Responses due by 6/10/2013 (Attachments: # 1 Text of Proposed Order)(Day, Sean) (Entered: 05/24/2013)
473 RESPONSE in Opposition re 472 MOTION for Entry of Judgment under Rule 54(b) ﬁled by William Jednorski, Susan Murphy. Replies due by 6/27/2013. (Brockman, William)

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District of Maryland (CM/ECF Live 6.1)
(Entered: 06/10/2013)
474 REPLY to Response to Motion re 472 MOTION for Entry of Judgment under Rule 54(b) ﬁled by Kevin Adams, Anthony Haig, Gary Saunders, Michael Washington, Dana T. West. (Day, Sean) (Entered: 06/27/2013)
475 ORDER granting 472 MOTION for Entry of Judgment under Rule 54(b); directing that the courts order at 451 granting summary judgment in favor of defendant as to count 1 of the Fourth Amend3ed complaint shall be a ﬁnal judgment. Signed by Judge Catherine C. Blake on 7/31/2013. (aos, Deputy Clerk) (Entered: 08/01/2013)
476 NOTICE OF APPEAL as to 475 Order on Motion for Entry of Judgment under Rule 54(b), 451 Order on Motion for Partial Summary Judgment, by Anthony Haig, Gary Saunders, Michael Washington, Dana T. West. Filing fee $ 455, receipt number 04164264625. (Day, Sean) Modiﬁed on 8/13/2013 (sls, Deputy Clerk). (Entered: 08/12/2013)
477 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 476 Notice of Appeal,. IMPORTANT NOTICE: To access forms which you are required to ﬁle with the United States Court of Appeals for the Fourth Circuit please go to http://www.ca4.uscourts.gov and click on Forms & Notices. (sls, Deputy Clerk) (Entered: 08/13/2013)
478 USCA Case Number 13-2014 for 476 Notice of Appeal, ﬁled by Michael Washington, Gary Saunders, Anthony Haig, Dana T. West - Case Manager - Sue Nagle. (sls, Deputy Clerk) (Entered: 08/14/2013)
479 JUDGMENT of USCA (certiﬁed copy)"AFFIRMING" the judgment of the District Court as to 476 Notice of Appeal, ﬁled by Michael Washington, Gary Saunders, Anthony Haig, Dana T. West. (sls, Deputy Clerk) (Entered: 11/14/2014)
480 STATUS REPORT by Dana T. West. (Day, Sean) (Entered: 11/21/2014)
481 MANDATE of USCA as to 476 Notice of Appeal, ﬁled by Michael Washington, Gary Saunders, Anthony Haig and Dana T. West. (sls, Deputy Clerk) (Entered: 12/08/2014)
482 MEMORANDUM. Signed by Chief Judge Catherine C. Blake on 2/24/2015. (nd2s, Deputy Clerk) (Entered: 02/24/2015)
483 ORDER Denying as moot 318 Plaintiffs' Motion for Relief concerning the court's 4/15/2010 Order; Denying as moot 338 Plaintiffs' Motion to Strike; Denying as moot 351 Plaintiffs' Motion to depose Glenn Marrow; Granting in part and denying as moot in part 366 Defendants' Motion to alter class periods; Granting 392 Susan Murphy's Motion for Partial Summary Judgment; Denying as moot 404 Plaintiffs' emergency motion to withdraw their combined opposition; Entering Judgment in favor of Susan Murphy; Directing counsel to advise the court by 2/27/2015 whether any issues remain open or whether the case can be closed. Signed by Chief Judge Catherine C. Blake on 2/24/2015. (nd2s, Deputy Clerk) (Entered: 02/24/2015)
484 Status Report Submitted for All Parties by William Jednorski, Susan Murphy (Fader, Matthew) (Entered: 02/27/2015)
485 MARGINAL ORDER Approving 484 Status Report. Signed by Chief Judge Catherine C. Blake on 3/2/2015. (nd2s, Deputy Clerk) (Entered: 03/02/2015)
486 Status Report Submitted for All Parties by William Jednorski, Susan Murphy (Fader, Matthew) (Entered: 03/20/2015)
487 PAPERLESS ORDER APPROVING 486 Status Report. An update is due April 20, 2015. Signed by Chief Judge Catherine C. Blake on 3/23/2015. (Blake, Catherine) (Entered:

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488 STATUS REPORT (Joint) by Dana T. West. (Day, Sean) (Entered: 04/20/2015)

489 PAPERLESS ORDER APPROVING 488 Status Report. An updated Status Report is requested by May 18, 2015. Signed by Chief Judge Catherine C. Blake on 4/20/2015. (Blake, Catherine) (Entered: 04/20/2015)

490 STATUS REPORT (Joint) by Dana T. West. (Day, Sean) (Entered: 05/18/2015)

491 Miscellaneous Correspondence to counsel: Thank you for your May 18, 2015 Status Report 490 . A further Status Report is due June 15, 2015. (Blake, Catherine) (Entered: 05/27/2015)

492 STATUS REPORT (Joint) by Dana T. West. (Attachments: # 1 Text of Proposed Order) (Day, Sean) (Entered: 06/15/2015)

493 ORDER Dismissing Count 2 pursuant to Local Rule 111; Entering Final JUDGMENT in favor of defendants on Count 4 pursuant to Fed.R.Civ.P. 54(b); Closing case. Signed by Chief Judge Catherine C. Blake on 6/16/2015. (nd2s, Deputy Clerk) (Entered: 06/17/2015)

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[CONTENT] May 12, 2005 | the Baltimore Central Booking and | Intake Center | the United States | Maryland ||| Central Booking | the Baltimore Police Department | the City of Baltimore | 42 | 1983 ||| Court ||| Fourth | Fourteenth Amendment ||| one | three | Central Booking ||| JC-MD-0008 | Maryland | Baltimore City Police Department | 1:06-cv-01863-CCB | Rodney v. Murphy | 24 | Maryland ||| five ||| First | Central Booking ||| Second | Central Booking ||| Third | Central Booking ||| Fourth | underwear strip | underwear strip ||| Fifth | more than 48 hours ||| third ||| The District Court | Catherine C. Blake | the Police Department |||  ||| 470 F.Supp.2d 537 | D. ||| Jan 04, 2007 ||| July 11, 2008 | Blake | the Equal Protection Clause |||  ||| March 19, 2009 ||| 1 | more than 48 hours | 2 ||| 1 | 2 ||| the next two years | January 14, 2011 ||| March 5th, 2013 | Blake |||  ||| August of 2013 ||| three | November 11, 2014 ||| 771 | 209 | 4th Cir. 2014 ||| The Circuit Court | James Harvie Wilkinson III |||  |||  |||  ||| Supreme Court | 2012 |||  ||| James Andrew Wynn Jr. | the Supreme Court |||  ||| Wynn |||  ||| February 24, 2015 | Blake | January 31 | 2011 ||| 2015 | WL 790334 ||| Central Booking |||  ||| 48 hours ||| Baltimore |||  |||  ||| A few months later on June 15, 2015 | Court [SUMMARY] On May 12, 2005, male arrestees at the Baltimore Central Booking and Intake Center filed this lawsuit in the United States District Court for the District of Maryland. The plaintiffs sued the warden of Central Booking, the Baltimore Police Department, the City of Baltimore, and other state officials under 42 U.S.C. § 1983. The plaintiffs, represented by private counsel, asked the Court for injunctive relief, compensatory and consequential damages, and attorneys fees and costs. The plaintiffs alleged that the defendants had violated their Fourth and Fourteenth Amendment rights when they engaged in unconstitutional strip searches of the plaintiffs and detained the plaintiffs for unreasonable lengths of time. This case was one of three cases alleging mistreatment of persons arrested and taken to Central Booking for booking and processing. The other cases were JC-MD-0008: Maryland NAACP v. Baltimore City Police Department, 1:06-cv-01863-CCB (D. Md. 2006) and JC-MD-0011: Rodney v. Murphy, 24-C-05004405, filed in Maryland state court. 

Plaintiffs sought certification for five classes. First, the suspicionless strip search class which consisted of those who had been or would be arrested for crimes not involving weapons, drugs, or felony violence, who were strip searched by Central Booking employees without any individualized finding that they were harboring weapons, drugs, or other contraband. Second, the non-private strip search class was composed of those who had been or would be subjected to strip searches at Central Booking with other arrestees present. Third, the equal protection strip search class consisted of male arrestees strip searched at Central Booking while similarly-situated female arrestees were not. Fourth, the underwear strip search class was made up of male arrestees subjected to an underwear strip search while similarly-situated female arrestees were not. Fifth, the over-detention class consisted of those arrested without warrants who had been or would be detained for an unreasonable length of time (more than 48 hours) before presentment to a judicial officer for a determination of probable cause. 

The defendants moved to dismiss the third amended complaint for failure to state a claim. The District Court (District Judge Catherine C. Blake) granted the motion in part and dismissed all claims against the City and the Police Department, rejecting the theory of "entrustment liability."  Claims against the state defendants survived, with the exception of individual claims against the current warden. 470 F.Supp.2d 537 (D. Md. Jan 04, 2007). 

On July 11, 2008, the district court (Judge Blake) issued a memorandum on the issue of whether the gender-differentiated search policy violated the Equal Protection Clause.  The court granted the plaintiffs' motion for summary judgment on the issue and denied the defendants' motion.

On March 19, 2009, the district court partially granted the plaintiffs' motion to certify a class.  Specifically, the court certified the following subclasses: 1) those people detained for more than 48 hours without having been brought before a commissioner, and 2) those people arrested for minor, nondrug, nonviolent offenses and strip-searched before they were brought before a commissioner. The court declined to certify the following subclasses: 1) those people who weren't strip-searched privately, and 2) male arrestees who were searched to their underwear when female detainees were not.

For the next two years, discovery motions were exchanged, until the defendants filed a motion for partial summary judgment on January 14, 2011. 

On March 5th, 2013 Judge Blake issued a memorandum and an order granting the motion for partial summary judgment. The court granted the motion under the doctrine of qualified immunity. 

The plaintiffs filed an appeal on August of 2013.  A panel of three judges rendered a decision on November 11, 2014. 771 F.3d 209 (4th Cir. 2014). The Circuit Court (Circuit Judge James Harvie Wilkinson III) affirmed the district court's decision to grant partial summary judgment for the defendants. The court noted that several police officers and guards testified that they found illegal contraband from these searches. And the searchers were being conducted in a private room. On the issue of qualified immunity, the court noted that the right to not be subjected to a strip search was not clearly established at the time of the searches. A Supreme Court decision was filed in 2012, settling aspects of the issue after the fact, but before this, officers who were conducting searches, could not reasonably tell if the searches were violating a constitutional right. The court found the defense of qualified immunity acceptable here, and determined that the motion for partial summary judgment was properly granted. 

Circuit Judge James Andrew Wynn Jr. filed a concurring opinion in which he pointed out that the Supreme Court intimated in the <i>Florence</i> decision that there may be exceptions to the rule. That detainees not being admitted into the general population should not have to be stripped searched. The complexities of the exceptions had not been explored by the courts, and Judge Wynn noted that there needed to be more elaboration on this topic, so public officials would know how to act accordingly. However, the merits of the case were not be reached because of the granting of summary judgment. 

On February 24, 2015 Judge Blake filed a memo regarding the January 31, 2011 motion for partial summary judgment. 2015 WL 790334. The motion was made by the warden-defendant, over the class of Plaintiffs claiming that Central Booking practiced "over-detention."  The court held that the plaintiffs' theory of supervisor liability was defective because there was no evidence that the warden-defendant was deliberately indifferent to the constitutional injury of the Plaintiffs. The warden-defendant did not deny that there were detainees held longer than 48 hours, which was past what was constitutionally acceptable, but she argued that it was caused by factors outside of her control. The court agreed that the delays in presenting detainees before a court commissioner was the fault of the Baltimore police, the state's attorneys office, and court officials. Furthermore, the court argued that the warden had made several efforts to remedy the problem, and that the plaintiffs' complaint that it was not fast enough or proactive enough did not prove deliberate indifference. Finally, the court also granted the summary judgment motion on the theory of qualified immunity, so the defendant had no fair warning that her conduct was unconstitutional. 

A few months later on June 15, 2015 the Court entered final judgment and closed the case. 
