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Balancing the interests

We like to think of our fundamental rights as absolute.  I have the absolute right to criticize the president of the United States.  I have the absolute right to be a Catholic, a Jew, an atheist, a Jain, or any other religion.  If I'm charged with a crime, I have the absolute right to a trial by jury.

Except they're not absolute.  You can criticize the president, but if your criticism extends to asserting he should be shot, some men in dark suits are going to your door to talk to you, and maybe take you with them.  You can practice the Rastafarian religion, but that doesn't mean you can smoke marijuana and get away with it.  You don't have a right to a jury trial if you don't make a timely demand for it in a misdemeanor case, and in some minor cases, you don't have a right to it at all.

The rights of the individual and the needs of society are in constant tension.  Being a democratic society, we more often come down on the side of the rights of the individual, and sometimes pretty far on that side.  But, as Albert Florence found out last week, when the question was whether the jail officials could make him strip and then squat and cough after he'd been arrested for an unpaid traffic fine, the law came down on the side of society.

Florence had been arrested in 1998 for fleeing from the police, pled guilty to two misdemeanors, and was sentenced to pay a fine in monthly installments.  He stopped in paying in 2003, and a bench warrant was issued for his failure to appear at an enforcement hearing.  He paid the balance a week later, but for some reason the warrant wasn't recalled.  Two years after that, he was stopped for a traffic violation, and the cop found the warrant in the computer.  He arrested Florence and took him to jail.  The policies of that jail required Florence to shower with a delousing agent.  He was also visually inspected for scars and tattoos, and required to lift his genitals.  After six days, he was transferred to the country correctional facility, where the procedure was the same, except in more detail, and with the addition of the squat-and-cough routine.  Florence was released the next day, and the charges against him dismissed.

He sued, and the district court granted him summary judgment, finding that the policy was, on its face, unconstitutional.  The 3rd Circuit reversed, and in Florence v. Bd. of Freeholders, the Supreme Court affirmed last week in a 5-4 decision. 

The decision's easy to summarize.  Kennedy's opinion basically throws the whole thing into the lap of jail officials.  Jails are nasty places, and people in them are even nastier, and just because someone was arrested for a minor offense, doesn't mean he's not going to be nasty and smuggle in things that can hurt other people.  Requiring jailors to determine whether they had "reasonable suspicion" that a particular arrestee was nasty is too difficult, so we're just going to let the jailors figure out what they want to do.

The decision isn't as broad as some people have made it out to be.  Kennedy points out in one part of the opinion that the Court isn't confronted with the question of whether such a search would be appropriate for someone who's not going to be placed in the general jail population.  Roberts and Alito file concurring opinions taking special note of this, both emphasizing the limits of the Court's opinion; as Alito writes,

The Court does not address whether it is always reasonable, without regard to the offense or the reason for detention, to strip search an arrestee before the arrestee's detention has been reviewed by a judicial officer. The lead opinion explicitly reserves judgment on that question.  In light of that limitation, I join the opinion of the Court in full.

Interestingly, Thomas doesn't write anything, but the decision notes that he concurred in all but that part of the opinion, so he, at least, has no problems with the jail officials making everybody do the Full Monty avec squat-and-cough.  So, to sum up, jailors have fairly unfettered discretion in how they're going to search incoming arrestees, as long as the arrestee is going to be placed in the general population.

But on another level, things get a bit more interesting.  First, as the dissent points out, there are multiple levels of privacy here.  Having a potential inmate strip so they can get a delousing shower is on one level; having the arrestee expose their genitals or other private areas is on an entirely different one.  Second, while it may be difficult to differentiate between people who might be carrying contraband or present some other threat to the guards, other inmates, or the security of the jail, it's not impossible; the opinion cites cases of a 70-year-old nun who was arrested for trespassing during an antiwar protest and was strip-searched, the same fate that befell people arrested driving with a noisy muffler, making an improper turn, or riding a bicyle without an audible bell.  Third, there's little empirical evidence of the need for such invasive searches.  During the oral argument, the court learned that the Essex County, N.J., Detention Center, where Florence was held, takes in about 25,000 arrestees a year, but found only 14 instances of contraband getting into the jail, and even that would have been discovered using a search policy based on reasonable suspicion.  In fact, the American Correctional Association, the US Marshals Service, and the Immigration and Customs Service all bar suspicionless strip searches.

The case reveals the classic liberal/conservative split, not only in regard to the rights of the individual versus the need for order in society, but also the split along that axis in regard to the court's role.  It would be easy to find, as the liberals did, that the need for such searches wasn't empirically demonstrated.  But the conservatives felt, not without justification, that it's not the job of the courts to look at the empirical evidence to determine whether a policy is sound. 

The case also reveals one of the problems that confront courts at the top of the appellate ladder.  Those courts don't exist to rule on individual cases, but to write broad rules of law that are applicable to all cases.  That usually involves drawing lines.  Here, the Court could have drawn it a number of ways:  you can't do strip-searches for arrests for minor offenses, for example, or you can't do them unless you have a "reasonable suspicion" that one's necessary for a particular arrestee.  The majority wasn't comfortable with either of those lines, so the only one they drew is whether the arrestee was going to be placed in the general population.

Lurking in the background, and largely dictating the outcome of this case, was the Supreme Court's 2001 decision in Atwater v. Lago VistaAtwater was arrested for driving her car without her kids wearing seatbelts, an offense that was punishable only by a fine, was held in jail for about an hour, then released on bond.  She sued, claiming that it was unconstitutional to arrest someone for an offense that didn't involve jail.  The 5-4 decision provided an odd alignment -- Souter wrote the opinion, and O'Connor sided with the liberals -- but the  majority rejected the claim, drawing another line:  as long as the police had reasonable cause to believe that the law was violated, they had the right to make an arrest.

As Breyer's dissent wonders, how might the outcome in Atwater been affected if Atwater had been subjected to a strip search and forced inspection of her vagina?


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