Photo: Roberts Court (2010-) - The Oyez Project

(update below)

As widely reported yesterday, the Supreme Court ruled in a 5-to-4 decision that officials could strip-search individuals being admitted to jail, even if they had committed minor offenses.  Justice Anthony M. Kennedy wrote in the decision that he was not willing to “second-guess the judgments of correction officials.”

Those concerned about Americans’ rights to privacy unanimously opposed the decision that further legitimized a practice the American Bar Association argues violates international human rights treaties.

The American Civil Liberties Union (ACLU) condemned the decision, though it admitted that the impact of the decision remained to be seen.

“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,” 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.”

As Firedoglake‘s David Dayen wrote when he covered the breaking news, the case that led to the Supreme Court decision involved a 35-year-old black man named Albert Florence from New Jersey, who was mistakenly arrested during a traffic stop over a fine that he had paid already, but which was not reflected in the system. That makes the decision even more egregious, because it excuses something that was the result of mismanagement, making it reasonable to fear that there will now be future instances where officials will be able to abuse their authority to use strip-searches as a result of the decision.

In addition to the concerns that stem from the ruling, Jacob Sullum of Reason highlighted what this could mean in the context of a previous ruling:

You may recall that in 2001 the Supreme Court said the Fourth Amendment does not preclude “a warrantless arrest for a minor criminal offense, such as a misdemeanor seat belt violation punishable only by a fine.” Today’s ruling not only magnifies the potential humiliation associated with such an arrest; it enhances the already considerable power that police officers have to conduct searches during routine traffic stops. In states (such as Texas) that give police discretion to arrest people for minor traffic offenses such as failing to buckle your seat belt, officers can present drivers with a choice: a search of your car now or a search of your bodily orifices later.

What about in the context of the Occupy movement? Certainly, many in law enforcement are probably tired of spending time policing or “babysitting” protests. Officers are known to abuse their authority in the arrests of activists.

The New York Times reported in March that on November 17 of last year, New York police officers arrested four Occupy protesters during a major day of action. The officers took them to a facility in East Village and strip-searched all of them. Their requests for a lawyer were also denied.

There have been reported incidents in Oakland of police strip-searching Occupy protesters. What implication does this decision have on the ability of officials to get away with strip-searches of people just because they have sneering contempt for everything Occupy stands for?

Or, what about the case of the city councilman in Pennsylvania who was strip-searched for using profanity in complaint to police? This decision from the conservative wing of the Court just makes it easier for officials to get away with using strip-searches as a means of punishment or retaliation. It makes it easier to target African-American males. It makes it easier to get away with humiliating transgender Americans too.

The ruling will only exacerbate problems with mass incarceration and racial profiling. ACLU Policy Counsel Inimai Chettiar described this reality in a post for the American Constitution Society. She noted that Florence’s case shows that even people who commit the most minor offenses are incarcerated these days and New Jersey has a history of racially profiling motorists.

But the most disturbing aspect of the Court decision is the reluctance of the Supreme Court to “second-guess” the officials who would order strip-searches of citizens. Andrew Rosenthal of the New York Times writes on this concern, ”Funny, I thought that was exactly what the courts were supposed to do. If the Supreme Court won’t, who will?”

Security or “public safety” increasingly is seen as a valid justification for encroachments or limits on civil liberties. There need not be clear evidence that safety is currently at risk. All officials have to do is be able to imagine scenarios where safety could be at risk if liberties took precedent over invasive actions.

Could one see a person posing a threat in a Hollywood movie? What about a sensational novel? Okay, then it is probably best to give officials maximum authority to violate the rights of Americans to protect “safety,” even if there is no evidence to substantiate rolling back rights to privacy.

Update

An additional note: It should be made explicit and clear. The Obama Administration argued for this decision. Those who find the conservatives who made this decision to be right wing should pause for a moment and realize the right wing decision was determined with the full support of the Administration.


The Justice Department under Obama plainly argued, “The Fourth Amendment permits corrections officials to conduct reasonable searches to protect inmates and officers and to maintain institutional security.” This included visual body cavity searches of the degrading variety, which Florence was subjected.

Now, maybe Obama supporters find this acceptable. But, if they don’t, they should admit Kennedy, Scalia, Alito, Roberts, and Thomas supported an argument on the Fourth Amendment that the Obama Administration agreed with.