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.
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.
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.
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.