PHILADELPHIA – Counsel in a class action lawsuit brought by a man arrested for public intoxication and subjected to a strip search by the Chester Police Department later deemed to be illegal by a federal judge, are seeking an award of $275,000 in attorney’s fees as part of a finalized settlement in the case.
On May 18, 2018, named plaintiff Kenard Pitney said he ate dinner and drove to Harrah’s Chester Casino, leaving his fiancée Quynh Tran at home with their two young children. Over several hours, he consumed three or four drinks while playing video poker and slot machine games, losing $2,000.
After attempting to retrieve his valuables and house keys from his car and a subsequent misunderstanding with a valet and casino security, Chester police were summoned and the officers who responded to the call believed Pitney was intoxicated. They summarily arrested him for public intoxication.
Pitney was brought to Chester Police Headquarters and once it was apparent his release would not be immediate, Pitney was moved to a holding cell. There, he was subjected to a 5-to-10-minute-long visual and body cavity strip search, during which the arresting officer allegedly made “derisive noises.” Shortly thereafter, Pitney was released from police custody to his fiancée.
Pitney later sued the City of Chester on Feb. 25, 2019 and after other claims were dropped, remaining was the plaintiff’s challenge to the City’s strip search policy, under Monell. However, the City moved for summary judgment on Oct. 13, 2019, claiming its officers had “reasonable suspicion” to strip search Pitney for contraband or weapons.
U.S. District Court for the Eastern District of Pennsylvania Judge Paul S. Diamond later said the casino’s surveillance video confirmed that Pitney was not violent or belligerent and given his warm weather casual attire, the initial search of his person conducted at the scene would have yielded contraband or weapons had Pitney possessed them.
As to the legality of the strip search policy under Monell, Diamond also found the City came up short in this regard and did not meet the threshold of “legitimate penological interests.”
On May 20, 2020, Diamond ruled the City of Chester’s policy of strip searching all offenders who are charged and intended to be held in custody for any length of time was unreasonable, using precedent from the U.S. Supreme Court case Florence v. Board of Chosen Freeholders of City of Burlington.
“In these circumstances, the need for CPD’s policy is not as evident as its potential for abuse. It is apparent that the intrusive, demeaning strip search of plaintiff did little to promote institutional security. When a non-drug summary offender has been patted down, uncovering no contraband, is neither violent nor belligerent and will be held briefly and alone in a cell, strip searching him is unreasonable,” Diamond said.
After further proceedings, counsel for the plaintiff filed a motion to certify the case as a class action on Sept. 16, on behalf of all individuals subjected to the same treatment that Pitney was.
After substantial and adversarial settlement negotiations, the parties entered into a preliminary settlement agreement on Jan. 27 – which the defendant said was in part to avoid protracted litigation, though it denied committing wrongdoing of any kind.
“Within 30 days of the entry of the preliminary approval order, defendant shall pay into the settlement fund the amount of $50,000 to be used by the settlement and website administrators to cover the initial costs of notice and administration of the settlement,” per the preliminary terms. Unused funds there will revert to the City.
Pitney himself is due to receive $25,000 under the current preliminary terms.
For other class individuals taken into Chester Police Department custody and strip-searched according to municipal policy during the period beginning Feb. 25, 2017 and ending on Dec. 9, 2020, and who voluntarily opt-in via a stated claim, they will each receive a different amount in compensation based on the charges they were facing. Additionally:
• Each class member arrested and housed in the cell block area on a highest graded offense which constitutes a summary, who submits a timely claim form will be entitled to receive $1,000;
• Each class member arrested and housed in the cell block area on a highest graded offense which constitutes a misdemeanor, except those misdemeanors involving drug offenses or violent offenses involving physical harm to an individual or use/possession of a weapon of any kind, who submits a timely claim form will be entitled to receive $400;
• Each class member arrested and housed in the cell block area on a highest graded offense constitutes misdemeanor possession of a small amount of marijuana for personal use, who submits a timely claim form will be entitled to receive $100, subject to the conditions set forth below;
• Each class member’s identity will be protected from public disclosure;
• Class counsel will petition the Court for an award of attorneys’ fees and expenses. Defendant shall not oppose class counsel’s application for an award of fees and expenses to the extent that it does not exceed $275,000 – which is subject to the Court’s approval, nor will defendant oppose any appeal filed by class counsel relative to their application for an award of attorneys’ fees, so long as such application for attorneys’ fees and expenses conforms with the settlement agreement and is not in excess of $275,000; and
• The City of Chester Police Department has agreed to update its policies and directives related to strip searches, implementing a new policy with a checklist review to determine whether reasonable suspicion exists to conduct future strip searches in accordance with existing law. The City of Chester acknowledges that it revised its strip search policies in part because of the institution and prosecution of this action.
UPDATE
As the settlement continues to move toward finalization, the class counsel has acknowledged that it seeks $275,000 in attorneys’ fees – a move the City won’t fight, a motion from plaintiff counsel says. The class is represented by the Law Offices of Patrick G. Geckle and Feldman Shepherd Wohlgelernter.
“Class counsel seeks an award of attorneys’ fees in the amount of $275,000. Defendant City of Chester has agreed not to oppose class counsel’s application for attorneys’ fees in the amount of $275,000, and will pay the amount that this Court deems appropriate and approves. The payment of counsel fees will not dilute or reduce the payments to class members who file timely claim forms,” the motion said.
“The class is represented by experienced counsel who have invested time and resources into the prosecution of this action. Class counsel have repeatedly sought to widen and expand the class and the amount of payments class members are to receive. The duration of the litigation also weighs in favor of the award of attorneys’ fees. Counsel have litigated this case for more than two years, obtaining significant discovery of favorable documents and testimony that helped bring about this settlement.”
According to the motion, class counsel have committed approximately 1,049 hours to the instant litigation and a lodestar calculation for same would be $541,501, which is significantly more than the fee class counsel have applied for.
Finally, the requested fee is 33 percent of the settlement fund and an amount that plaintiff counsel says is “consistent with other class actions.”
“Class counsel respectfully suggests that the counsel fee requested is reasonable in light of the time and labor expended by counsel, the magnitude of the litigation, the risks taken in the litigation, the monetary results achieved for the class, and the amount of the fee in proportion to the monetary settlement and injunctive relief achieved,” the motion said.
“Further, this class action has brought about a change in policy and practice by the City of Chester, which will no longer conduct strip searches on all detainees admitted to the City of Chester cell block, regardless of whether reasonable suspicion exists for such search.”
U.S. District Court for the Eastern District of Pennsylvania case 2:19-cv-00799
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com