Why “Squat and Cough” May Prevail Over Human Dignity

Oral argument before the Supreme Court of the United States was held in Florence v. Board of Chosen Freeholders, and it didn’t go well.  The facts of Florence were a citizens’ nightmare, as related by the Third Circuit :

We begin with the facts surrounding the arrest and detention of lead Plaintiff Albert Florence. On March 3, 2005, a New Jersey state trooper stopped the car in which Florence was a passenger and arrested him based on an April 25, 2003 bench warrant from Essex County. The warrant charged Florence with a non-indictable variety of civil contempt. Though Florence protested the validity of the warrant by insisting he had already paid the fine on which it was based, he was arrested and taken to the Burlington County Jail (BCJ).

There he was strip searched, including parts of his body that no one but a screw would want to see. When he was moved to Essex County jail, it happened again, with the addition of “squat and cough” with an eye peeled on his anus.  He was held for six days until someone figured out that he had paid the fine, the warrant was a big mistake, and he was cut loose.  Sorry, guy.

The question was whether and where a line should be drawn between suspicionless naked searches for people charged with trivial offenses and the concern of jails that people not bring in weapons or contraband in the butt.  As it turns out, there is no empirical evidence to show that arrestees concealing contraband is an actual problem, though there are some anecdotes that it happens once in a while, but still, why pass up a chance to humiliate a person just in case?  And of course, aside from the trivial basis for their detention, the fact that they’re presumed innocent never enters into the mix.  Safety first is the jailer’s slogan.

With the win below and the sympathetic facts in hand, one might suspect that  oral argument went, well, great.  No, sadly it didn’t.

As I understood the oral argument, the Petitioner, represented by Tom Goldstein, took the view that the government can always watch arrestees from 10 feet away or a similar distance while the arrestees are showering before entering the jail. If the government wants to inspect the arrestees more closely, however, such as at a close arms-length distance, then reasonable suspicion is required. According to Goldstein, reasonable suspicion should always exist when the arrest is for a major offense. In contrast, case-by-case reasonable suspicion should be required for arrests for minor crimes. The Respondents, represented by Carter Phillips, took the view that no line drawing was required: As long as the inspection was only visual inspection of the outside of a person’s body, then the Fourth Amendment did not apply at all upon entering a prison.

My sense of the argument was that the Justices were pretty skeptical of engaging in the kind of line-drawing that the Petitioner advocated. It was just too hard to distinguish a 10-foot inspection from a 5-foot inspection from a 2-foot inspection, or to distinguish a major crime from a minor one. So I would guess the votes will be there for a conclusion that no line-drawing as required, as the government has the discretion to do a close visual inspection of all arrestees when they enter jail.

Reading the transcript of oral argument, it came off as confused and pointless, with no clear view of either what was appropriate or why.  More importantly, the court peppered the respondent with questions in order to get a clear vision of his position, and the questions went unanswered.  It was painful to read.

Aside: For those whose legal genius is limited to blog posts or comments, never having stood before a panel of judges whose purpose in life is to shred your best argument into a million pieces, that’s how lawyering happens.  Unlike the wails of misery when someone calls you stupid on the internet (oh, the horror), if you can’t take the scrutiny here, stay out of the courtroom and far away from clients. You can’t handle it.  In courtrooms, whether trial or appellate, you will be tested. That’s what we do.

What’s most disturbing about the Florence argument, and indeed the position taken by respondent before the Supremes, is that it failed to recognize that the problem, the strip searching of people put in jail for trivial, even non-criminal, matters isn’t an issue of how many feet away the guards stand.  The whole “10, 5, 2” argument was, well, silly. 

The point, from what I could make of the argument, was that there’s a distinction between a jail guard within a human being’s  “personal space,” focused entirely on that person standing before them naked, and directing them to lift and separate, and being observed from afar in the showers with a group of other inmates, undistinguished from the herd.  But then, that wasn’t quite said, and it was reduced to the silly “10, 5, 2” point, which didn’t fly well, as it shouldn’t.

As Orin Kerr correctly pointed out, the situation in Florence can’t be viewed in isolation, but as the natural consequence of past bad law.

To my mind, the case is really a follow-up to Atwater v. City of Lago Vista, 532 U.S. 318 (2001), in which the Court considered whether the Fourth Amendment allows arrests even for very minor offenses. In Atwater, the Court concluded that the Fourth Amendment does allow arrests even for very minor offenses — in that case, a seatbelt violation that led to a small fine. Florence requires the Court to confront a downstream implication of Atwater: If the Fourth Amendment allows the police to make the arrest for the very minor offense, and the arrestee is then brought to the jail, does the Fourth Amendment also allow the kind of invasive strip search that often occurs on entry into jail to ensure that no contraband is brought inside?

It’s not unreasonable for jails to strip search incoming folks for weapons and contraband, even though it’s hardly the problem people might assume it would be.  Rather, the problem is that cops are locking up people for seatbelt violations, or unpaid fines (or for mistakenly thinking a fine is unpaid), or for offenses that state law says don’t warrant an arrest, such as Virginia v. Moore, ironically also argued by Tom Goldstein.

Each piece of the system doesn’t exist in isolation, but as part of a continuum of the arrest to prosecution stream.  When arguments are made to the Supreme Court that fail to understand how the stream flows, how one piece seamlessly moves into the next, they are met with skepticism and received poorly.  And this is the big bench, its decisions affecting all of us for a very long time, if not forever.

Who is the champion of the people, crafting these arguments and proffering rules by which are society should be governed, so that five of nine can decide?  They are big names, important people worthy of such a grave and serious presentation of the right of all before the Supreme Court.  Based on the transcript of argument, it seems that we would do better to have some of us little people, those of us who work with the absurd outcomes, live with the people who suffer the indignity, know criminal law is all its ugliness and nastiness, and how other little people called defendants suffer when the big guys have a bad day.

Yesterday was a bad day before the big bench.

11 thoughts on “Why “Squat and Cough” May Prevail Over Human Dignity

  1. Dan

    I’ve never been much of a fan of slippery slope arguments, either from a persuasion point of view, or a logical one, but it appears that yesterdays oral argument, and the likely ruling is indeed the culmination of a start down a slippery slope where there is nothing to prevent anyone, anywhere, doing anything, from being strip searched at anytime.

  2. Alex Bunin

    The Supreme Court seems to think all physical acts are interchangeable regardless of their purpose and effect. I assume they understand there is a difference between voluntary sexual contact and rape. Why can’t they see the difference between observing inmates in a shower and forcing one to submit and expose their most personal parts?

  3. SHG

    Orin’s use of the words “downstream implication” really drives home the point that these aren’t isolated bits of conduct, but a natural flow.  Most slippery slope arguments are based on supposition of what future conduct will be.  This really doesn’t strike me as slipper slope as much as the rational and inevitable product of a misguided rationale at the start that leaves little room as people wind their way through the system.

  4. SHG

    My best guess is that it wasn’t clearly presented.  In fact, it was really poorly presented, and then guided off topic by questioning that trivialized the distinctions, further obfuscating the point.  Then again, the converse is that once we’ve agreed to allow dehumanizing conduct toward people who aren’t criminals, or at least not criminals for whom there’s any reasonable suspicion that they need to be observed or searched naked, it’s just a baby step to move in a bit closer or tell them to squat and cough.

    Bad things usually happen in baby steps, but they get there eventually.

  5. Dan

    What I was trying to say is not that this is a slippery slope situation, but that we now find ourselves at the very bottom of the slippery slope that was started down years ago.

  6. Jim Majkowski

    Justice Souter, in Atwater, basically held that the Constitution is not going to be a sword in the hands of persons (unjustifiably) humiliated by police officers, at least not unless they suffer serious harm. He wrote:

    “In her case, the physical incidents of arrest were merely gratuitous humiliations imposed by a police officer who was (at best) exercising extremely poor judgment. Atwater’s claim to live free of pointless indignity and confinement clearly outweighs anything the City can raise against it specific to her case.

    “But we have traditionally recognized that a responsible Fourth Amendment balance is not well served by standards requiring sensitive, case-by-case determinations of government need, lest every discretionary judgment in the field be converted into an occasion for constitutional review


    “The upshot of all these influences, combined with the good sense (and, failing that, the political accountability) of most local lawmakers and law-enforcement officials, is a dearth of horribles demanding redress. Indeed, when Atwater’s counsel was asked at oral argument for any indications of comparably foolish, warrantless misdemeanor arrests, he could offer only one. We are sure that there are others, but just as surely the country is not confronting anything like an epidemic of unnecessary minor-offense arrests. That fact caps the reasons for rejecting Atwater’s request for the development of a new and distinct body of constitutional law. “

    (footnotes omitted)

    John Roberts’s Supreme Court, unlike that of Earl Warren, who was offended and angered by lawbreaking lawmen, is going to leave the issue of contempt of cop to the locals. It is too bad that the locals too often appear to regard this refusal to intervene as approval and vindication.

    After all, what’s so wrong about a little “gratuitous humiliation?” Especially when it happens to someone else.

  7. John Neff

    Is anyone besides me offended by the fact he was held six days on an invalid warrant for failure to pay? The Sheriff and jail administrator should have their butts kicked for that.

  8. Rumpole

    “And this is the big bench, its decisions affecting all of us for a very long time, if not forever.”

    I doubt that the decisions of the Supreme Court have any effect on how the police conduct themselves.

  9. Thomas Stephenson

    Unfortunately, this about sums up police conduct: arrest or investigate the most trivial offenses to get the green light to investigate bigger offenses. It’s a similar rationale to stopping drivers for very minor traffic violations in order to green light investigating whether the driver is drunk or transporting contraband. Here, it’s arrest for a minor offense so that it’s okay to strip search the guy for contraband.

  10. Daniel

    Dan, I agree with you, except I think the slippery slope is more dangerous in court because of stare decisis. One case feeds off another one. One bad case feeds off another one. An example is “preventative detention.” First the S.Ct. held that juveniles could be held for preventative detention. The Court assured that it didn’t mean that preventative detention would necessarily be allowed for adults. Yet, the Court cited the juvenile case to authorize preventative detention of adults.

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