Strip-Searching
America: Florence v. County of Burlington
April
4, 2012
By John W. Whitehead
In
a devastating 5-4 ruling that not only condones an
overreach of state power but legitimizes what is
essentially state-sponsored humiliation and visual rape,
the U.S. Supreme Court recently declared that any person
who is arrested and processed at a jail house,
regardless of the severity of his or her offense (i.e.,
they can be guilty of nothing more than a minor traffic
offense), can be subjected to a strip search by police
or jail officials without reasonable suspicion that the
arrestee is carrying a weapon or contraband. The
five-man majority rationalized their ruling as being
necessary for safety, security and efficiency, the
government’s overused and all-too-convenient
justifications for its steady erosion of our freedoms
since 9/11.
This
ruling stems from the case of Albert Florence who was
erroneously arrested for failing to pay a traffic fine
and forced to submit to two egregious strip and visual
body-cavity searches at two different county jails.
Ironically enough, the supposed crime for which Albert
Florence was arrested (having an unpaid traffic fine) is
not a criminal offense in New Jersey, while being strip
searched for something other than a crime is a
criminal offense. Florence, an African-American man in
his mid-thirties, was on his way to Sunday dinner in
2005 with his then-pregnant wife and 4-year-old son when
they were stopped by a New Jersey State Police trooper.
Florence’s wife was driving. However, after showing his
ID, Florence found himself handcuffed, arrested and
taken to jail. After spending six days in jail, Florence
was finally able to prove his innocence.
Outraged,
Florence sued the jail officials who had needlessly
degraded his bodily integrity. A federal appeals court
sanctioned the blanket strip search policy, which was
then affirmed by the U.S. Supreme Court. In a nutshell,
what Justice Anthony M. Kennedy, writing for the
majority, concluded was that it is
impractical—“unworkable” was the phrase used—to expect
overworked jail officials to have to take the time to
distinguish between harmless individuals guilty of
nothing more than driving without a seatbelt and those
who pose a true threat and may be reasonably suspected
of carrying drugs or weapons.
Of
course, the Constitution insists that a workable
solution must be found—one that squares with the Bill of
Rights. But in an age when the courts show greater
deference to bureaucracy than democracy, making life
easier for harried jailers trumps the Constitution.
Consequently, any person who is arrested, no
matter how minor the alleged criminal act, can now be
subjected to a degrading strip search. Examples of minor
violations which could now lead to a strip search are
many and include “violating a leash law, driving without
a license and failing to pay child support.”
These
blanket strip searches are not for the faint of heart. A
typical strip search, as described in a prison manual
and cited by Justice Stephen Breyer in his dissent,
involves:
a
visual inspection of the inmate’s naked body. This
should include the inmate opening his mouth and moving
his tongue up and down and from side to side, removing
any dentures, running his hands through his hair,
allowing his ears to be visually examined, lifting his
arms to expose his arm pits, lifting his feet to
examine the sole, spreading and/or lifting his
testicles to expose the area behind them and
bending over and/or spreading the cheeks of his
buttocks to expose his anus. For females, the
procedures are similar except females must in
addition, squat to expose the vagina.
One
can certainly understand the need for such precautions
when dealing with dangerous criminals. But is there
really any reason to subject a mother arrested for
driving with her children unbelted to such an invasive
strip search? What about the nun arrested for
trespassing during an antiwar demonstration? Or the
activists arrested in a free speech protest or those who
engage in acts of nonviolent civil disobedience? In
keeping with this ruling, any and all of these
individuals could now find themselves subjected to
exposing their naked bodies in a variety of poses
designed to “show all” to the prying eyes of government
officials.
Frankly,
I doubt that Anthony M. Kennedy, John G. Roberts Jr.,
Antonin Scalia, Clarence Thomas and Samuel A. Alito
Jr.—the five justices who seemed to have no trouble
inflicting such humiliations on the populace—would be
inclined to condone such dehumanizing treatment were
there even the slightest possibility that they might be
subjected to it. It is a testament to the elitist
mindset that prevails in our judicial system today that
these five men can rest easy knowing that they will
never be subjected to any such violation of their
persons. It is only average Americans—the so-called
“great unwashed masses”—who will have to worry about
being subjected to this state-sanctioned brand of
humiliation and bodily violation. (It may seem a paltry
consolation for those forced to endure these searches,
but at least Justice Breyer, joined in his dissent by
his female counterparts on the bench—Justices Ruth Bader
Ginsburg, Sonia Sotomayor and Elena Kagan—recognized
that these visually invasive strip searches constitute a
serious invasion of privacy.)
This
ruling is far from the first occurrence of the Supreme
Court’s elitism, detachment, cluelessness about how
average Americans live, and lack of concern about the
degree of humiliation to which we are subjected by
government officials. In their decision in Kentucky
v. King, for instance—a ruling that completely
undermines the Fourth Amendment requirement of a warrant
before entering someone’s home—the Court held that
police officers can forcibly enter a person’s home,
without a warrant and for nonviolent offenses, based
only on the mere suspicion that the occupant may possess
an illegal substance (most likely marijuana). Now with
its decision in Florence v. County of
Burlington, the Court has driven another stake
through the heart of the Fourth Amendment, the
constitutional guarantee that people should be free from
unreasonable search and seizure by government
agents.
This
ruling also further reinforces the idea that we are all
to be treated as suspects. A forcible strip search upon
arrest inverts the presumption of innocence into the
presumption of guilt. Before even being allowed to call
a lawyer, the arrestee is faced with the dehumanizing
treatment of a strip search, a security measure
traditionally reserved for those suspected of a serious
crime or already proven guilty.
Doubtless
this ruling will pave the way for even greater abuses to
be meted out on the populace by the total security
state. Now that these blanket strip searches no longer
have to be restricted to hardened criminals and
suspected murderers, it won’t be long before folks
arrested for innocuous offenses such as jaywalking or
kids who start a food fight at school find themselves
forced to strip naked and spread eagle. What’s to stop
the police from strip-searching children accused of
minor offenses such as schoolyard scuffles? It’s not so
far fetched as one might think. Baltimore police have
come under fire for arresting and handcuffing three
9-year-old girls and an 8-year-old boy, a scenario
which, under this ruling, could have resulted in a strip
search of young children.
The
Supreme Court’s ruling in Florence is also an
affront to international law and universal human rights,
which the United States purports to uphold. According to
Article 5 of the UN Declaration of Human Rights, “No one
shall be subjected to torture or to cruel, inhuman or
degrading treatment or punishment.” Yet there is nothing
more degrading or inhuman than forcibly strip-searching
a person arrested for a minor crime. Just ask Albert
Florence who described the experience of being strip
searched as “humiliating. It made me feel less than a
man.”
Despite
giving the green light to these blanket strip searches
in the name of safety and security, the Supreme Court
has in the past recognized that strip searches are
traumatic. In 2009, the Court ruled that school
officials’ strip search of a 13-year-old girl was an
unconstitutional violation of her rights. Unfortunately,
despite the fact that police and jail officials are not
trained in matters of constitutional law, let alone
matters involving human dignity and bodily integrity,
the justices deferred to the judgment of police and jail
officials in Florence. Yet having essentially
gifted jailers with carte blanche authority to strip
search individuals at will, the Court may find it has
opened a proverbial can of worms.
Although
most Americans are very compliant, many will not readily
submit to these strip searches—especially not if they
are innocent of any serious criminal wrongdoing. It’s
unlikely that a woman arrested for not seat belting her
child or paying a traffic ticket on time will placidly
disrobe and spread her body parts. And what will happen
when she refuses? Will she be forcibly stripped of her
clothes? Will she be subjected to an enhanced patdown
and virtual strip search, akin to what the TSA has been
meting out to passengers? Will she find herself facing
even more onerous charges carrying even great penalties,
such as those levied against individuals found to have
resisted arrest?
In
light of the fact that approximately 13 million people
are introduced to American jails in any given year, we
may soon see millions of people needlessly
strip-searched over minor offenses such as unpaid
traffic fines. What remains to be seen is whether this
license to strip-search will become the next weapon of
compliance to be used against those who question the
power of the state. For the moment, however, thanks to
the Supreme Court, visually invasive strip searches will
at least be the hallmark of jailhouses across the United
States.
WC:
1605
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