Strip-Searching: Supremes Say We Shouldn’t Doubt Law Enforcement…

Burt Likko says:

I know a thing or two about law myself. Kinda got me one o’ them fancy J.D. thingies up on my wall too. So I feel qualified to opine here.

The search here was very close to as invasive as one can possibly imagine. Florence was made to shower with a delousing agent. While naked, his body was then inspected for scars, marks, gang tattoos, and contraband items. The visual search included a visual examination of his mouth, armpits, and his frenulum (he was instructed to grasp and lift his own genitals) and then when transferred to another facility subjected to a second inspection thatalso included a look in his ears, nose, “…and other body openings.” This included being ordered to squat while naked and to cough — presumably so anything that was in his rectum would have been released by the cough. Whether this included an <i>actual</i> anal probe is unclear, although I should think that had it happened, it would have been mentioned explicitly.

Frankly, I think you have to separate the reason for the arrest and the incarceration check. The plaintiff in this case did not challenge the justice or lack thereof in his arrest — or if he did, it was not an issue before the Supreme Court. So why he was arrested, whether he should have been arrested, is not something that the case addresses. So while the plaintiff is particularly sympathetic with respect to a minor offense that had actually been corrected as the reason for his (debatably wrongful) arrest, what matters is he was arrested and incarcerated.

The caselaw cited by the majority and the dissent both speak of the need to seek a “reasonable balance.” The standard cited by the majority is Turner v. Safley (1987) 482 U.S. 78, 89, which stated that an inmate’s constitutional rights may be infringed by a jail if doing so “is reasonably related to legitimate penological interests.” Which is roughly correct, considering the elevated need for safety in protecting against contraband. Under this regime, strip searches of inmates on in-processing to jails had previously been upheld in Bell v. Wolfish (1979) 441 U.S. 520, 558, and other kinds of searches that seem like they would never survive Fourth Amendment analysis in non-incarceratory circumstances. And in Block v. Rutherford (1984) 468 U.S. 576, 584-585, the Court held that a prisoner challenging the rules must offer “substantial evidence” that the corrections officers have abused the deference granted to them by the law. Florence, the majority says, didn’t do that, so the “reasonable balance” includes the squat-search for every prisoner, even ones as innocuous as Florence.

In the face of this dreary legal background, Florence proposed as his alternative to the highly deferential rule that the prison could do the strip-and-squat search for everyone regardless of offense or cause for arrest, instead that officers conducting the in-processing to exempt those in-processed for lesser offenses from the most invasive parts of the inspection process or from having to strip naked, unless the officers had a “reasonable suspicion” that a more intrusive search was needed. Florence did not dispute that some prisoners could be made to undergo these procedures. Just not him. For inmates like himself, he suggests a patdown, metal detector, or maybe a drug dog sniff. (Dogs and prisoners, in a small room together. What could possibly go wrong?)

I fault the majority for an abundance of imagination in one dimension of its analysis, and a failure of imagination in another. There is now something called the “strong rational basis test,” City of Cleburne v. Cleburne Living Center, Inc. (1985) 473 U.S. 432, in which the Court really looks for something rational based on actual evidence instead of basically accepting whatever the government feeds it as its justification under a hypothetical set of facts. To get there the claimant needs to assert a legitimate claim to a constitutional interest — which Florence did, but which the majority did not really recognize. That the majority dreamed up scenarios in which a “harmless” low-level offender might be coerced by a dangerous arrestee into using the “back door storage facility” to smuggle the other guy’s drugs or weapons into jail for him. I’d have been more impressed with this line of argument if the majority had indicated the record, or at least an amicus, had evidence of something like that actually happening at some point in time.

Second the majority treated the issue as an either/or. Either the jail can do basically what it likes to search an inmate, or the court had to adopt the petitioner’s proposed rule. I see some room for middle ground in between these positions. Nothing in between them was considered. While the majority invested considerable effort and imagination to develop reasons why the rule might be needed in some situations, it devoted no effort into considering whether some other sort of rule other than “the government can do whatever it wants” might be appropriate.

Note that Chief Justice Roberts and Justice Alito both concurred separately to indicate that they believed the holding of the majority should be interpreted narrowly. Roberts specifically underlined the possibility of leaving the door open for exceptions in other cases, and Alito noted that the issue was confined to those committed to the general population of the jail as opposed to those getting other kinds of treatment, and that strip searches are not categorically reasonable under all circumstances.

I can’t call it an unreasonable opinion in light of precedent. I can say that it’s not Kennedy’s finest work. Reading between the lines it may also be that the case was not as well-briefed or as well-argued on the petitioner’s side as the Court would have preferred — which may be the result of the bleak precedents against which the petitioner had to argue. If I were on the Court I would probably have joined the Chief in saying that under the facts and arguments offered at bar, the majority had the better of it — but a different case in the future might well yield a different result.Report