As we noted yesterday, it is difficult to imagine a more baffling ruling than the one the Supreme Court issued earlier this week in which the majority led by Justice Anthony Kennedy, in a 5-4 decision, somehow concluded “that the search procedures at the county jails struck a reasonable balance between inmate privacy and the needs of the institutions, and thus the Fourth and Fourteenth Amendments do not require adoption of the framework and rules petitioner proposes.”
The ruling allows officials to strip-search individuals who are arrested for any offense, no matter how minor, even when there is no reasonable belief that the individual has weapons or drugs.
The ruling effectively defers judgment to “correctional officials that the inspections served not only to discover but also to deter the smuggling of weapons, drugs, and other prohibited items.” The ruling therefore does not require strip-searches, but rather allows the correctional facility to exercise its own judgment.
Writes Justice Kennedy, “Jails and prisons also face potential gang violence, giving them reasonable justification for a visual inspection of detainees for signs of gang affiliation as part of the intake process.”
The New York Times notes, “The procedures endorsed by the majority are forbidden by statute in at least 10 states and are at odds with the policies of federal authorities.”
The American Bar Association, in their brief to the Supreme Court, argued, “A strip search of detainees like Mr. Florence upon admission to a prison, without some other individualized reasonable suspicion, is not justified by security concerns, and is therefore inconsistent with the respect for the human dignity of prisoners to which the ABA is deeply committed.”
In fact they cite their own standard, “No prisoner should be subjected to cruel, inhuman, or degrading treatment or conditions” and note, this language is directed from the Universal Declaration of Human Rights and “such language is repeated in various multilateral treaties to which the US is a party.” They write, “The key concept in international law interpretations of these concepts is respect for human dignity.”
Stephen Breyer in dissent argued that the nature of the strip search is a “serious affront to human dignity and to individual privacy that it presents.” Justice Briar acknowledges the need to manage and maintain levels of safety and thus writes, “Minimizing he threat of gang violence, and detecting contraband are ‘legitimate penological interests,'” therefore he agrees that the court ought to “normally defer to the expertise of jail and prison administrators in such matters.”
Where he draws the line is that the “invasion of interests,” he argues, “must be ‘reasonably related’ to the justifying ‘penoogical interest’ and moreover that ‘need must not be exaggerated.’ “
Writes Justice Breyer: “Amicus briefs present other instances in which individuals arrested for minor offenses have been subjected to the humiliations of a visual strip search.”
Cited were an example of a nun who was arrested for trespassing during an antiwar demonstration, as well as “individuals detained for such infractions as driving with a noisy muffler, driving with an inoperable headlight, failing to use a turn signal, or riding a bicycle without an audible bell.”
He writes, “I have found no convincing reason indicating that, in the absence of reasonable suspicion, involuntary strip searches of those arrested for minor offenses are necessary in order to further the penal interests mentioned. And there are strong reasons to believe they are not justified.”
Justice Breyer writes, “Indeed, neither the majority’s opinion nor the briefs set forth any clear example of an instance in which contraband was smuggled into the general jail population during intake that could not have been discovered if the jail was employing a reasonable suspicion standard.”
“In an appropriate case, therefore, it remains open for the Court to consider whether it would be reasonable to admit an arrestee for a minor offense to the general jail population, and to subject her to the ‘humiliation of a strip search,’ prior to any review by a judicial officer,” he writes. “For the reasons set forth, I cannot find justification for the strip search policy at issue here – a policy that would subject those arrested for minor offenses to serious invasions of their personal privacy.”
However, Justice Kennedy argues, “People detained for minor offenses can turn out to be the most devious and dangerous criminals.”
Indeed, he notes, “Hours after the Oklahoma City bombing, Timothy McVeigh was stopped by a state trooper who noticed he was driving without a license plate.” He adds, “Experience shows that people arrested for minor offenses have tried to smuggle prohibited items into jail, sometimes by using their rectal cavities or genitals for the concealment. They may have some of the same incentives as a serious criminal to hide contraband.”
The ACLU said on Monday, “A split Supreme Court ruling that people arrested for even minor offenses can be subjected to a strip search puts the privacy rights of millions of Americans at risk.”
“Today’s decision jeopardizes the privacy rights of millions of people who are arrested each year and brought to jail, often for minor offenses,” said Steven R. Shapiro, legal director of the ACLU. “Being forced to strip naked is a humiliating experience that no one should have to endure absent reasonable suspicion. Jail security is important, but it does not require routinely strip searching everyone who is arrested for any reason, including traffic violations, and who may be in jail for only a few hours. “
“The practical impact of the decision remains to be seen,” Mr. Shapiro added. “Ten states prohibit strip searching minor offenders as a matter of state law, and those laws are unaffected by today’s opinion. In addition, the Court was careful to recognize that strip searches may still be unconstitutional under certain circumstances.”
“The best way to preserve the privacy of the millions of Americans who are arrested each year for minor offenses,” Mr. Shapiro said, “is not to put them in jail in the first place. Instead, we should be using cheaper and more effective alternatives to incarceration.”
Newspapers across the nation have blasted this decision.
Wrote the Sacramento Bee on Wednesday, “Even from their exalted perch, Supreme Court justices ought to be able to put themselves in the shoes of those affected by their rulings.” They add, “A majority of the court utterly failed that test with the decision Monday allowing authorities to strip-search people arrested for any offense, no matter how minor, before holding them in jail.”
Notes the Bee, “The minority opinion tracks the law in at least 10 states, including California. State law bars strip-searches of those arrested for infractions or misdemeanors unless the offense involves violence, weapons or drugs – or there is ‘reasonable suspicion’ that a person is concealing contraband. Federal policy and international human rights treaties also frown upon blanket strip-searches.”
As the Bee notes, “But too often when law enforcement is given discretion in such matters, it is abused.” They cite the class-action lawsuits and multimillion-dollar settlements over strip-searches in Sacramento County.
The Philadelphia Inquirer writes, “The court’s opinion is rooted in utter paranoia, the worst of all influences on public policy.”
Justice Kennedy said the court should not second-guess prison officials, but the paper argues, “But that is exactly why there is a court – to second-guess officials when they ignore constitutional rights and freedoms. In this case, the court threw away the individual’s basic right not to be punished before being adjudicated.”
The paper adds, “It is baffling to consider that the U.S. Supreme Court, the esteemed arbiter of Americans’ rights and freedoms, could possibly think that cavity searches might have saved the Oklahoma City and Flight 93 victims.”
Andrew Rosenthal, writing for the NY Times, likewise writes, “Justice Kennedy said courts are not in a position to second-guess correctional officials in this area. Funny, I thought that was exactly what the courts were supposed to do. If the Supreme Court won’t, who will?”
Writes the LA Times, “The court’s decision goes too far. Jailers have a responsibility to make sure that their facilities are secure, but they can do so without the blanket authority the court has given them.”
As Mr. Rosenthal notes, the police can make mistakes. This case in fact, was based on a mistake.
“In 2005, a state trooper pulled over Albert Florence’s wife for speeding. He was in the passenger seat of his BMW, and a records search indicated an outstanding warrant for an unpaid fine. Actually, he’d paid the fine. The records were wrong,” he writes. “But Mr. Florence was unjustly held for a week in jails in two counties and strip-searched twice. Adam Liptak wrote in The Times that there is agreement he was compelled to stand naked in front of a guard and move intimate parts of his body. There’s a dispute over which parts. Who cares?”
Exactly. The idea that you are going to catch the next Timothy McVeigh based on a strip search of an individual detained or arrested on a minor violation is a one in a billion shot that ought not drive public policy.
I am all for allowing the correctional facilities leeway, but it should be based on reasonable suspicion and probable cause, not at their own whims.
—David M. Greenwald reporting
So the Supreme Court has foolishly ruled that a person can be stripped searched, including a body cavity search (essentially rape by prison officials) for failure to pay a traffic fine – even if the person already paid the fine. This is one of the most wrongheaded decisions I have ever witnessed. Individual states need to make sure they pass legislation that does not allow for such an outrage…
It’s difficult to decide what’s most offensive about this decision:
1. What it says about the current state of our Supreme Court. Another 5-4 decision based on whether a Justice arrived through the Republican door or the Democratic door, claiming to be deciding what the Constitution calls for. It’s another sign that the political polarization reflected in our media and politics is fully entrenched in the Court.
We accept in lower courts–for example, the appeals court Republican giving the Attorney General a three-page assignment to get even with the President for commenting on the Court and health care–but the Surpremes? We see both sides openly selling their candidates with the pitch that they’ll appoint judges who are biased in the “right way.”
2. That, in the case involved, Mr. Florence now is told that spending a week in different jails, probably because of his blackness, while suffering strip searches that most people and many countries have decided is inhumane–before they figured out that he was mistakenly arrested in the first place–is really cool in America.
3. That it somehow is reasonable (even necessary) to degrade our dignity routinely looking for a tattoo or something else that can’t be found in a pat down search without the slightest cause or suspicion and justify it by encouraging us to be more fearful as a society (oh, the terrorism that threatens us!).
On the other hand, what could excite a cop more than the prospect of getting a closeup look at a naked nun he knows offers no threat?
4. To suggest that the strip search is just fine, thank you, because Sister Mary might be smuggling dangerous contraband in her rectal cavity or vagina, even though strip searches wouldn’t detect such misguided attempts. Guess what this Court will be approving next….
[quote]for failure to pay a traffic fine – even if the person already paid the fine.[/quote]I saw nothing in the article indicating that the arresting officers had any reason to know or suspect that the fine had been paid. Do we require clairvoyance of peace officers?
You raise some interesting points here. One is the partisan nature of the court. It is worth noting at one point we had people like Souter, Stevens, Blackmun, and Sandra Day O’Connor, all moderates nominated by Republican Presidents. No more is that the case. Now we have a solid wing of four four Republican nominees, four Democratic nominees, and the guy in the middle is really not in the middle on most issues.
“I saw nothing in the article indicating that the arresting officers had any reason to know or suspect that the fine had been paid. Do we require clairvoyance of peace officers?”
Because that’s the point of all of this.
[quote]”I saw nothing in the article indicating that the arresting officers had any reason to know or suspect that the fine had been paid. Do we require clairvoyance of peace officers?”
Because [b]that’s the point of all of this[/b]. [/quote]
Non sequitur? I’m not saying that it is a good policy. But I can understand that the Supreme court would find no US constitutional error if the State and its Supreme Court found no error.
I’d probably oppose California to adopt the policy as SOP. But, you appear to want to sanctimoniously dictate to all states how they should approach their criminal justice system.
The error was not the definitive point, it was whether authorities had the right to strip search for minor crimes without probable cause. Five justices said yes and left it to their discretion, four said no.
“But, you appear to want to sanctimoniously dictate to all states how they should approach their criminal justice system. “
Do you believe that the bill of rights should extend to the states as well?
Oh… the bill of rights do apply to states (nice BS hit)… but the bill of rights saya “unreasonable search and seizure”… the nuances were, by definition, left to the states. A little knowledge uis a dangerous thing.
Some of the nuances were left to the states, some have been defined by the courts.
hpierce, the problem was not strip-searching Florence when he was arrested, but while he languished in two jails for a week while authorities S-L-O-W-L-Y determined that he was arrested by mistake.
Florence had been stopped several times before, and so he carried a letter indicating that the fine had been paid.
The State Police who stopped him this time were operating under a court order (because of racial discrimination allegations) that included federal monitors to assess minority driver stops. Still, the trooper handcuffed and delivered him to his first jail.
So, wasn’t this just the greatest case to use as a Supreme Court vehicle! Maybe the court could have waited for a less racially-charged, case of mistaken arrest and confinement to justify [u]routine[/u] strip searches supposedly (wrote Justice Kennedy) to detect lice and contagious infections, to look for tattoos and other evidence of gang membership and to prevent drug and weapon smuggling into jail.
[quote]So the Supreme Court has foolishly ruled that a person can be stripped searched, including a [u]body cavity search [/u](essentially rape by prison officials)[/quote]
A strip search is not a body cavity search. I have worked as a healthcare professional in several county jails and several prisons, and in virtually every case the strip searches have been performed by a deputy or correctional officer of the same gender and in a private location out of sight of anyone of the opposite sex. A strip search typically consists of having the detainee/inmate strip, squat, and cough 3 times. I have yet to meet anyone who works in corrections who gets a thrill out of seeing some skanky crackhead, homeless addict, or some disheveled fat sloppy drunk butt-naked. Even if you go through customs at LAX and are suspected of being a drug mule, you do not get a body cavity search. You get an x-ray and a customs officer will sit beside you continuously in a local hospital until you defecate whatever contraband you have in you.
I have also seen very normal looking and behaving detainees who were arrested on relatively minor offenses immediately engage in serious self-harm once processed and put in a cell.
It does seem that the supreme court has been making more rulings that allow for the possibility of a more invasive surveillance and police state…..because of this danger and the increasing use of para-military type tactics by police, I am 100% opposed to this ruling.
@wesley506 Thank you for pointing out the blatant error.
[quote]I saw nothing in the article indicating that the arresting officers had any reason to know or suspect that the fine had been paid. Do we require clairvoyance of peace officers? [/quote]
How about the letter? Why did not that raise any suspicion in the police’s minds that this person had done nothing wrong?
To wesley506 and AdRemmer: See [url]http://articles.cnn.com/2012-04-02/justice/justice_scotus-strip-search-ruling_1_invasive-strip-intrusive-search-minor-offenses?_s=PM:JUSTICE[/url]
[quote]Court records show Florence was subjected to an invasive strip and visual body-cavity search.[/quote]
I’m sorry, but I find this ruling absolutely outrageous, and I stand by what I said initially, to wit:
[quote]So the Supreme Court has foolishly ruled that a person can be stripped searched, including a body cavity search (essentially rape by prison officials) for failure to pay a traffic fine – even if the person already paid the fine. This is one of the most wrongheaded decisions I have ever witnessed. Individual states need to make sure they pass legislation that does not allow for such an outrage…[/quote]
wesley506
Being of the same gender does not make forced inspection of body cavities any less intrusive to many of us. And for homosexuals, or transgendered individuals, or anyone who has ever been a victim of sexual abuse, it may have even more objectionable implications. In my opinion, there is no justification for this type of invasion of personal privacy.
Elaine
Well spoken. I am completely with you on this one.
[quote]…subjected to an invasive strip and visual body-cavity search.[/quote]
I read the CNN article. Please explain what body cavity they were visually searching?
[quote]….forced inspection of body cavities [/quote]
The only “force” I have ever seen or heard of is telling the detainee/inmate that they will have to sit in a cell and will not be processed until they comply. Not being processed means you generally will not be able to make arrangements to get out, will not be moved to a room with a bed,blanket & pillow, and will generally be pretty uncomfortable.
The one body cavity that is almost universally visually searched is the oral cavity, so I guess technically that would qualify as a “visual body cavity search”.
From a very practical standpoint no-one that I have ever met in the jail/prison setting wants to wrestle a detainee/inmate to the floor just to get a pink/orange jumpsuit on them. Everyone knows that the likelihood of significantly injuring their knee/back/shoulder, getting bit and/or exposed to some body fluid and thus blood borne pathogen during this type of activity is pretty high.
wesley506
“The only “force” I have ever seen or heard of is telling the detainee/inmate that they will have to sit in a cell and will not be processed until they comply. “
I am glad to hear that your personal experience in this area has been so benign. Since I am completely unfamiliar with this process, I looked it up by simply entering “police strip search” in Google where I encountered a number of tapes of actual strip searches occurring in police stations in various locations including Missouri, being conducted by members of both sexes and in a much less benign fashion than you are describing including wrestling one woman to the floor and disrobing her with a pair of scissors. These are only the ones that have made it to television by virtue of lawsuits. This would lead me to the belief that these are possibly not the only instances of this happening. My apologies for not providing specific links as my computer skills do not include this.
Perhaps the members of the Supreme Court have not seen these clips and therefore share your more optimistic view of what happens inside police stations.
To wesley506:
See [url]http://codes.ohio.gov/orc/2933.32[/url]
[quote]2933.32 Body cavity search, strip search – conducting unauthorized search – failure to prepare proper search report.
(A) As used in this section:
(1) “Body cavity search” means an inspection of the anal or vaginal cavity of a person that is conducted visually, manually, by means of any instrument, apparatus, or object, or in any other manner while the person is detained or arrested for the alleged commission of a misdemeanor or traffic offense.
(2) “Strip search” means an inspection of the genitalia, buttocks, breasts, or undergarments of a person that is preceded by the removal or rearrangement of some or all of the person’s clothing that directly covers the person’s genitalia, buttocks, breasts, or undergarments and that is conducted visually, manually, by means of any instrument, apparatus, or object, or in any other manner while the person is detained or arrested for the alleged commission of a misdemeanor or traffic offense. “Strip search” does not mean the visual observation of a person who was afforded a reasonable opportunity to secure release on bail or recognizance, who fails to secure such release, and who is to be integrated with the general population of any detention facility, while the person is changing into clothing that is required to be worn by inmates in the facility.[/quote]
See [url]http://fox6now.com/2012/03/23/victims-family-talks-about-mpd-body-cavity-searches/[/url]
[quote]MILWAUKEE — Seven officers and one supervisor remain off the streets as the Milwaukee Police Department tries to learn if they conducted illegal strip searches. One victim’s family tells FOX6 News Milwaukee police officers conducted body cavity searches in the middle of the street – an act that is against the law.[/quote]
See [url][/url]
[quote] Felix Booker had a body cavity search that tests the limits of search and seizure law. Mr Booker was lying naked on a gurney, breathing out of a tube, and medically paralyzed while a medical doctor searched his rectum. Mr. Booker was stopped in a routine traffic stop and arrested. Oak Ridge Police suspected cocaine was hidden in his body, so they took him to an emergency room for a body cavity search. Dr. Michael LaPaglia ordered a cocktail of drugs to paralyze Mr. Booker. He had to be placed on a breathing machine during the procedure….Here is Tennessee’s law on body cavity searches:
Chapter 7. Arrest
Part 1. General Provisions (Refs & Annos)
§ 40-7-121. Searches and seizures; body cavities
(a) As used in this section, unless the context otherwise requires, “body cavity search” means an inspection, probing or examination of the inside of a person’s anus, vagina or genitals for the purpose of determining whether the person is concealing evidence of a criminal offense, a weapon, a controlled substance or other contraband.
[/quote]
Need I say more?
The [i]Florence[/i] case is another good reason to avoid New Jersey.
Fret not Californians: pursuant to California Penal Code Section 4030(f):
No person arrested and held in custody on a misdemeanor or infraction offense, except those involving weapons, controlled substances or violence nor any minor…shall be subjected to a strip search or visual body cavity search prior to placement in the general jail population, unless a peace officer has determined there is reasonable suspicion based on specific and articulable facts to believe such person is concealing a weapon or contraband, and a strip search will result in the discovery of the weapon or contraband.
Still, I would prefer a probable cause standard. But between reasonable suspicion and the new Florence rule, I’ll go with reasonable suspicion.