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April 18, 2012

RESCHKE: Supreme Court’s strip search decision a disgrace

JEFFERSONVILLE — While most of the attention on the Supreme Court lately has revolved around debates on the constitutionality of the Affordable Care Act, much less attention has been given to its recent decision affirming the constitutionality of strip searches. The court’s 5-4 decision April 2 to rule against a New Jersey man who complained that strip searches in two county jails violated his civil rights goes against the principles this country was founded on.

The case, Florence v. Board of Chosen Freeholders of County of Burlington, No. 10-945, came from the arrest of Albert Florence in New Jersey in 2005. Florence was in the passenger seat of his BMW when a state trooper pulled his wife, April, over for speeding, according to an April 2 New York Times article, and several other sources.

A records search showed Albert Florence had an outstanding warrant for his arrest based on an unpaid fine. Florence had actually paid the fine, but due to an error, the records were never updated. In addition, even if the warrant had been valid, failure to pay a fine is not a crime in New Jersey, according to an April 2 story from The Associated Press.

Florence was arrested and taken to the Burlington County Jail in Southern New Jersey, according to The Associated Press story. Six days later, Florence had still not received a hearing and remained in custody. He was then transferred to another county jail in Newark, where he was strip searched again. The next day, a judge dismissed all charges.

There is some dispute about the details of the strip searches, according to the New York Times article, but Florence was quoted in an interview last year that he recalled being told by officers to, “Turn around. Squat and cough. Spread your cheeks.”

Shortly after being released from jail, Florence filed a lawsuit. The case went all the way to the Supreme Court, which ruled against Florence. Justice Anthony Kennedy wrote in his majority opinion, “The case turns in part to the extent to which this Court has sufficient expertise and information in the record to mandate, under the Constitution, the specific restrictions and limitations sought by those who challenge the visual search procedures at issue. In addressing this type of constitutional claim, courts must defer to the judgment of correctional officials unless the record contains substantial evidence showing their policies are an unnecessary or unjustified response to the problems of jail security. That necessary showing has not been made in this case.”

In the dissenting opinion, Justice Stephen Breyer wrote, “In my view, such a search of an individual arrested for a minor offense that does not involve drugs or violence — say a traffic offense, a regulatory offense, an essentially civil matter or any other such misdemeanor — is an ‘unreasonable searc[h]’ forbidden by the Fourth Amendment, unless prison authorities have reasonable suspicion to believe that the individual possess drugs or other contraband.”

In Breyer’s dissenting opinion, he cited examples where individuals were arrested for minor offenses and “subjected to the humiliations of a visual strip search.” Those examples included a nun, a Sister of Divine Providence for 50 years, who was arrested for trespassing during an antiwar demonstration.

Other examples included women who were strip searched during periods of lactation or menstruation. They also include 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.

Five of our Supreme Court justices think the preceding examples are reasonable searches. God help us.

— Michael Reschke is the copy editor for the News and Tribune. Reach him via email at michael.reschke@newsandtribune.com.

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