Doomed to Squat

Nobody, but nobody, expected a different outcome after oral argument in Florence v. Board of Chosen Freeholders.  After Tom Goldstein’s painful oral argument, it was a fait accompli.  And yet, the decision of the Supreme Court majority sends chills down the spine.

From the New York Times :

The Supreme Court on Monday ruled by a 5-to-4 vote that officials may strip-search people arrested for any offense, however minor, before admitting them to jails even if the officials have no reason to suspect the presence of contraband.

Justice Anthony M. Kennedy, joined by the court’s conservative wing, wrote that courts are in no position to second-guess the judgments of correctional officials who must consider not only the possibility of smuggled weapons and drugs, but also public health and information about gang affiliations.

It’s not that the rationale behind permitting routine strip searches of anyone being placed in general population is unsound. It’s true that anyone could, theoretically, secrete contraband inside a body cavity. It’s true that smuggling contraband into jails and prisons is a very real problem, and a heck of a side business for guards who like nice cars. 

But that the Supreme Court based its ruling on deference to the screws is shocking.  Who are they to question the judgment of prison officials? They are the defenders and protectors of the Bill of Rights, the special Nine who tell the prison officials that they don’t get to do anything they please. They are the ones charged with setting limits, with watching the watchers, with limiting the discretion of government folks whose interest in making their job easier doesn’t trump the right of human being not to be subject to every degradation they come up with. They are the Supreme Court. They have failed us.

Justice Stephen G. Breyer, writing for the four dissenters, said the strip-searches the majority allowed were “a serious affront to human dignity and to individual privacy” and should be used only when there was good reason to do so.

Justice Breyer said that the Fourth Amendment should be understood to bar strip-searches of people arrested for minor offenses not involving drugs or violence, unless officials had a reasonable suspicion that they were carrying contraband.

Like who, you ask? 

According to opinions in the lower courts, people may be strip-searched after arrests for violating a leash law, driving without a license and failing to pay child support. Citing examples from briefs submitted to the Supreme Court, Justice Breyer wrote that people have been subjected to “the humiliation of a visual strip-search” after being arrested for driving with a noisy muffler, failing to use a turn signal and riding a bicycle without an audible bell.

A nun was strip-searched, he wrote, after an arrest for trespassing during an antiwar demonstration.

And what was Justice Kennedy’s response?

Justice Kennedy responded that “people detained for minor offenses can turn out to be the most devious and dangerous criminals.” He noted that Timothy McVeigh, later put to death for his role in the 1995 Oklahoma City bombing, was first arrested for driving without a license plate. “One of the terrorists involved in the Sept. 11 attacks was stopped and ticketed for speeding just two days before hijacking Flight 93,” Justice Kennedy added.

If this strikes you as absurd, as in what good it would have done had this been the case when Timothy McVeigh was ticketed for driving without a license plate, then join the club.  If the point is that bad dudes are sometimes stopped for small things prior to committing heinous crimes, so what? There’s nothing about it that suggests a strip search, had they been arrested and placed into general population, would have unearthed a bomb.  Perhaps it’s just the idea that we would all feel better knowing that McVeigh had to squat and cough before he blew up a courthouse?

But more importantly, this means that tens of thousands of Americans who, through the greater glory of our legal system find themselves placed in jail over trivial (or mistaken, or even non-existent) matters will be subject to one of the most humiliating and dehumanizing experiences a person can endure because a justice can dream up two (count ’em, two) examples of really bad people who got traffic tickets. 

This is not a case about hardened criminals who have been arrested for serious crimes being able to skirt inspection as they bring weapons or drugs into prisons.  Nobody argued that should be the case, though there remains a decent argument that even serious crimes in terms of penalty, such as stock fraud, really don’t offer much of a reason to conduct a cavity search.  But that wasn’t on the table.

This is about the people who pose no meaningful threat to anyone, who in a society with better control over their police would never be in the position of being put in jail, being left to the discretion of their jailors.  It’s about the unpaid speeding ticket (even if it had in fact been paid and some grocery clerk neglected to update the computer), the protesting nun, the guy nabbed for contempt of cop, being put through the wringer because they can.

And now, they can. Because Justice Kennedy doesn’t think he and the four others who told him to write an opinion think they have any business second-guessing prison officials.  And because the last man to speak on all of our behalf, to argue this point so that our wives, husbands, daughters and sons won’t be needlessly, pointlessly, irrationally, subject to this fundamental degradation of common human dignity, failed.

Should you find yourself in the clutches of a screw who tells you to drop your pants and squat, remember that it didn’t have to be that way.  It shouldn’t be that way.  And yet it is. Now you know who to send the thank you note to.  This is an utter disgrace, and hopefully, in a decade or two when the composition of the court changes and a competent advocate steps forward to address this issue again, we can undo the shame of this decision.

23 thoughts on “Doomed to Squat

  1. Frank

    And thus another tool of official oppression comes into being.

    Poetic justice consists of a grandchild of one of the five arrested for a “minor offense” (like using your civil rights) and subjected to this now legal crime against humanity.

  2. Mark Bennett

    Bad people are sometimes not stopped for small things prior to committing heinous crimes. Therefore everyone should be subject to random strip searches.

  3. Thomas R. Griffith

    Sir, with all due respect I was expecting a bigass April Fools! at the end. Turns out, it wasn’t a joke, rather just another real life (WTF?) event to take place up in the great supreme nursing home. And D.Ls. are taken away from geriatrics of their age group for less, go figure.

    Q. Does the ‘decision’ require the strip searches to include cavity peeks / pokes & be allowed to be conducted in hall ways in mass like they are now, or in private rooms & documented / recorded? This could get messy.

  4. SHG

    The decision doesn’t “require” anything, but rather defers to the excellent judgment of locals. And yes, it could get very messy.

  5. SHG

    Wouldn’t the extension of logic require mandatory stripe searches of all rather than mere random?

  6. Alex Bunin

    Let’s ask for rehearing and have you argue it next time. Or, we could just have them arbitrarily arrested and strip searched. Either, might give the majority second thoughts.

  7. SHG

    My preference is that their spouse be picked up on a mistaken warrant, the kind that some overtaxed clerk pumps into the computer with a letter spelled wrong or for a ticket that was paid but not marked. But we need someone there to take a video, so we can all watch justice in action on youtube.

    Everything should have a video these days.

  8. Jim Majkowski

    The Supremes have long disdained “petty indignities” and left the remedies, if any are to be found, to the locals. They don’t want federal damages suits against local officials and they don’t like the exclusionary rule generally.

    Souter, in Lagos, wrote many things, including:

    “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.23 We are sure that there are others,24 but just as surely the country is not confronting anything like an epidemic of unnecessary minor-offense arrests.25 That fact caps the reasons for rejecting Atwater’s request for the development of a new and distinct body of constitutional law.”

    In effect, de minimis (and seldom) non curat SCOTUS. Besides, everyone knows the police only do that to people who deserve it.

  9. SHG

    Besides, everyone knows the police only do that to people who deserve it.

    Ain’t that the truth.

  10. Onlooker

    “This is about the people who pose no meaningful threat to anyone, who in a society with better control over their police would never be in the position of being put in jail,…”

    This part really has me scratching my head. The idea that people cited for these kind of petty, minor offenses are being hauled of to jail is atrocious. I guess I’m being naive’, but I thought that was reserved for those who posed a danger to the public. Bicycle without a bell? Really!?

  11. Marc R

    Most arrestees don’t have healthcare. Without healthcare you’ll never get a professional evaluating you for testicular cancer. Jail guards aren’t volunteers, and thus are professional. Hence, jail guards prevent necessarily prevent/cure cancer.

  12. Mat

    No, I mean I like these the most. I enjoy all the post. Why is it impossible to accuratly convey your intent over comments?

  13. Thomas R. Griffith

    Sir, please allow me to bring it back to the topic at hand with a real life encounter.

    While trying to hide under a bridge (alongside a preacher and retired judge)from the Texas tornadas (that’s how we say it) from Hell, a principal pulled in pointing in the wrong direction. I told her to consider aiming the right way or risk a ticket or worse if you have warrants.

    After rolling her eyes and obeying the law I helped her climb up to join the bridge party. Once it blew over we exchanged cards. The only question asked was why in the hell I thought it was important to park correctly.

    I pointed towards the police cars passing by and refered everyone to a lil ol blawg (SJ) in an effort to allow ‘you’ to explain it in a way they’d understand. All three have emailed or called saying, Bless you I wasn’t aware, Thanks for helping an old man up & down that damned ol hill – the Principal owes you big time son & Thank you, I didn’t know.

    Q. Re: “the excellent judgment of locals”, the definition of strip search & the vast amount of police officers comitting sex crimes across the nation (see Injustice Everywhere) – Do you foresee the unnecessary fondling of arrestees genitalia by whoever’s on duty leading to rape victims being re-victimized and teenagers (boys & girls) being traumatized? And what in the Hell can be done ‘now’ vs waiting for the old farts to fade away? Told you this was gonna get messy and now possibly perverted leading to the teasering of the unwilling, unaware & unconscious crowd? Thanks.

  14. SHG

    I’m not aware of any jail that has the guard touching the inmates genitals. Rather, they have the person move them about on command. As for trauma, aside from the standard “everything is traumatic” problem, I’m not qualified to say, but I wouldn’t be surprised.

    As for what can be done now? States can still prohibit this in their own institutions. Elect people to office who prefer not to have the anal cavity of nuns inspected. But then, do you really think people care enough to overlook such controversial issues as immigration and Obamacare?

  15. Oyez my azz

    Do you mind if I make a really rude comment?

    I think we are enabling the Supreme Court, in the pyschological sense of enabling badness by taking it seriously at all. We have rights abuses everywhere you look that these justices will never personally experience because of their beyond elite stature in society, yet we write up their recent decision in the plea bargain case as if it will ever provide anyone relief in the real world — ever.

    Now we have them cow-towing to prison guards and we ask ourselves why. Because we keep writing and talking as if they are not a panel of freaks. You don’t have to lower your regard of the office of the supreme court to call them out as the extreme freak show that they have become.

    and here is the rude part, well, that was a little rude, but this is really rude: If you want to stop contraband in prisons, search the mani-folds of fat, hanging from those miserable, uneducated, brain-damaged sociopathic correctional officers who haul their sadistic profiteering Burger-Kinged azzes into our prisons every day. That’s where contraband comes from.

    Unless Kennedy et al wants to let us all check their rectums for a gang tatoos, they can stuff it.

    Stop enabling these people. They don’t care about you. They don’t care about anybody.

    Snub them, dismiss them, complain about them, instead of trying to glean some strained grain of commonality with them every time they chose an anemic case and set even more anemic law. They are irrelevent. Americans need to make sure they understand that every day, and not from Newt Gingrich or any other right wing nut.

  16. SHG

    That was rather rude. Unfortunately, lawyers can’t ignore Supreme Court decisions, as they are the building blocks of our arguments, for better or (usually) worse. And now we need to shake  image of “miserable, uneducated, brain-damaged sociopathic correctional officers who haul their sadistic profiteering Burger-Kinged azzes” out of  our heads as well. 

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