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

Nob Akimoto

Nob Akimoto

Nob Akimoto is a policy analyst and part-time dungeon master. When not talking endlessly about matters of public policy, he is a dungeon master on the NWN World of Avlis

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128 Responses

  1. We can trust the police. Over the years they’ve proven themselves to be good people. I don’t think this will ever be used to humiliate or intimidate anyone.Report

  2. Avatar Scott says:

    Breyer’s dissent was laughable. He 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.”  He might try legal reasoning instead of emotional blather.

    Nob:

    If the cops are putting you in the fishing jail it seems reasonable to protect the staff and other inmates. But some liberal has always got to whine that something is not fair, nice, polite or whatever.

    CC:

    This has nothing to do with the police, this is about correctional officers in processing folks into jail.

    Breyer dissent was laughable. He 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.”  He might try legal reasoning instead of emotional blather.Report

    • Avatar Patrick Cahalan says:

      Ah.  Allow me to generalize:

      So should anyone put into custody for any reason should be strip-searched?  How about if you’re just put into the back of a cruiser?  After all, you may have a grenade hidden next to your junk.

      At what point does “the person interacting with the police may represent a danger to the police” become no longer a justifiable position?Report

      • Avatar Scott says:

        PC:

        First,  no one is even suggesting such a thing.  We are talking about processing folks into jail, that is all.  No, I don’t think a strip search is reasonable when someone is first arrested, considering cops cuff folks to stop any foolishness.  There is long line of cases about when the cops can cuff folks and for what reasons.Report

        • Avatar Kolohe says:

          How often does an arrest lead to *not* going to jail?Report

        • Avatar Patrick Cahalan says:

          You said: “If the cops are putting you in the fishing jail it seems reasonable to protect the staff and other inmates”

          How does this not generalize to, “If the cops are putting you in the back of the cruiser it seems reasonable to protect the cop and his or her partner, because you can be strip searched when you get to the facility anyway”?

          In a case of an actual arrest, what’s the difference?

          Where do *you* draw the line, and why do you draw it there, and not someplace else?  With the line drawn where you draw it, do you see who might be impacted by it?Report

          • Avatar Scott says:

            PC:

            To some extent it has to do with what is reasonable for the situation and circumstances. If you can’t understand that I can’t help you.  Cops are mostly concerned with protecting themselves and preventing the destruction of evidence when they arrest you so cuffing you for the short time you are with them is enough, whereas you will be in jail longer and free to roam, without cuffs, so they have to make sure you don’t bring anything in for the safety of both other prisoners and the guards.Report

            • Avatar Patrick Cahalan says:

              You’re doing a great job of not answering my question.  I can understand plenty.  I can understand why a police officer might actually want to strip search you even before they put you in a cruiser in some circumstances.  What someone may want and why is different from what we should allow them to do, and why not.

              What I want to know is what you think the circumstances ought to be wherein strip searching is permissible, and why… if it is permissible in that case… it isn’t permissible in other circumstances that resemble those.

              If we *can* reasonably say that someone can be strip searched as part of the processing into jail procedure, why don’t we say that they must be?  If there’s a reasonable safety issue?Report

              • Avatar Will H. says:

                The only way that the police will ever feel safe is through the wanton murder of every person who is not a police officer.
                After that, they can set in on Internal Affairs.
                When they’re done there, maybe they can *feel* safe.Report

  3. Avatar greginak says:

    damn liberal justices always giving the government more power over people. well sort of….well not really….well actually not all….but at least principled small government freedom lover Antonin ( i’m ignorant of the basic facts of Obamacare) Scalia and Thomas whipped out some orignalism on us..Report

  4. Avatar BlaiseP says:

    Is anyone really surprised?   The Fourth Amendment has been dead for years.Report

  5. Avatar Mike Schilling says:

    The plaintiff in this case was arrested for non-payment of a fine, which is not a crime.  In fact, he had paid the fine, and was carrying a document proving it. Nonetheless, he was held in custody for over a week and underwent multiple strip-searches.

    Next time, he should shoot someone and claim self-defense..Report

    • Avatar Kolohe says:

      Wouldn’t work, he’s black.Report

    • Avatar Scott says:

      Mike:

      Wrong, please read the article first and get your facts right. The angel in question here was “charged with obstruction of justice and use of a deadly weapon. Petitioner entered a plea of guilty to two lesseroffenses and was sentenced to pay a fine in monthly installments. In 2003, after he fell behind on his paymentsand failed to appear at an enforcement hearing, a benchwarrant was issued for his arrest. He paid the outstanding balance less than a week later; but, for some unexplained reason, the warrant remained in a statewide computer database.”Report

      • Avatar Kolohe says:

        Scott, and I mean this with a complete lack of respect, I really hope one day you find yourself on the wrong side of an asymmetric power situation and are totally fished by karmic justice.Report

        • Avatar Kolohe says:

          Let’s say you’re of a similar frame of mind to the esteemed Mr. Cheeks and think that the Liberal Commie-Dems are plotting to take away your liberty.  Wouldn’t you want some sort of protection, or at least the veneer of protection, when the cops come after you when your form 27B-6 isn’t filled in correctly?Report

          • Avatar Scott says:

            Yes, I want protection but I’d like it before I’m arrested and stopping a strip search doesn’t do that.  Actually, if I’m arrested, I want the CO’s to search everyone in order to stop contraband from entering the jail and effecting my safety.Report

          • Avatar Anne says:

            +1 on 27B-6 referenceReport

      • Avatar Patrick Cahalan says:

        So, what you’re saying is that MIke is actually correct in his summation of the circumstances.  He was arrested for not paying a fine, while he was carrying a receipt that he had in fact paid that fine.Report

  6. Avatar Mike Schilling says:

    Scott, if you’re going to call me “wrong”, you should contradict what I said instead of confirming it.Report

    • Avatar Scott says:

      Mike:

      “In 2003, after he fell behind on his payments and failed to appear at an enforcement hearing, a bench warrant was issued for his arrest.”  Our angel was arrested for being a no show at the hearing, not failing to pay a fine. Surely you know the difference.Report

      • Avatar Kolohe says:

        And picked up 2 years later.  He was a regular America’s Most Wanted, that guy.Report

      • Avatar Patrick Cahalan says:

        No, he was arrested because by your own quote, “for some unexplained reason, the warrant remained in a statewide computer database.”

        So let me ask you this: if a warrant was erroneously issued for your arrest, and you actually went into the court building and filled out the proper form to have that warrant revoked, and then on your way home the cops picked you up and booked you because some clerk didn’t process your form… you’d regard it as a perfectly legitimate use of police power to strip search you how many times during your stay as a ward of the State?Report

        • Avatar Scott says:

          PC:

          Let’s stick to why the warrant for his arrest was originally issued, was it for failure to pay a fine or failure to show at a hearing?  This is so simply surely you and Mike can get it.Report

          • Avatar Patrick Cahalan says:

            Scott, you’re defending the process because you think the guy was a bad guy, right?  I’m inferring that, but it oozes from your comment.

            I don’t care why the guy originally had a bench warrant issued for his arrest.  He (supposedly) cleared it.  There should not have been a bench warrant issued for his arrest, anymore, in the system.

            I’m attacking the process because there’s a big goddamn hole in the process wherein someone who isn’t a bad guy can get nailed for exactly the reasons this guy got nailed.  It doesn’t matter to me whether this one guy is a bad guy or not.

            Do you understand, now?Report

            • Avatar Scott says:

              PC:

              I agree the bench warrant should have been quashed.  However, that is a totally separate issue from the justification of strip searches.  Actually, if I’m arrested, I want the CO’s to search everyone in order to stop contraband from entering the jail and effecting my safety.Report

              • Avatar Patrick Cahalan says:

                Unfortunately, Scott, you can’t separate the two.

                Because the justification for strip searches has to apply equally to everyone who is incarcerated.  Since no process is going to be 100% accurate, this means you’re effectively saying, “It doesn’t matter if you are arrested unreasonably, and do not have an never intend to schlep contraband into a prison, because there is a chance that prisoners can be affected adversely and because you’ve been arrested, you can be subject to a strip search”.

                It seems like (from your followup comments) you’re okay with this.

                So in spite of the fact that you have not been tried or convicted, you have lost at least enough bodily integrity that they are allowed to strip search you in the name of the greater good.  So do we strip search the guards before they come on shift?  IIRC, corrupt prison guards are a source of at least some contraband, yes?

                Okay, for what other “in the name of the greater good”s are you willing to apply this justification?Report

              • Avatar Scott says:

                PC:

                You and Blaise are trying to argue that since arrest should not have happened that this fact taints his strip search and everything else that happens. That many be your argument however it wasn’t the argument before the court, which was whether 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. Let’s try and stick to the real issue.Report

              • Avatar BlaiseP says:

                Well, we poor ignorant bastards who lack a JD after our names (though some of us have enough logic and set theory to understand how anyone might fit into Florence’s shoes, or more properly, since he was made to take his shoes off, as well as everything else, and was obliged to let some Orificer of the Law inspect his anus and the contents of his rectum — his footprints)  just might think the facts of this particular case might be put into evidence, including the fact that this guy was arrested on a stale bench warrant and was sheepishly turned loose upon the hapless citizens of Burlington County once that fact was determined.

                But then, we’re not lawyers, as you’re ever so anxious to put into evidence.   We don’t know jack shit.   Suspicions.   Etcetera.  Great reason to strip anyone and make him spread his cheeks.  It’s all so much bullshit and you know it.Report

              • Avatar Patrick Cahalan says:

                You and Blaise are trying to argue that since arrest should not have happened that this fact taints his strip search and everything else that happens.

                Actually, I’m not arguing anything.  I’m asking you questions, which you’re still not answering.

                So do we strip search the guards before they come on shift?  IIRC, corrupt prison guards are a source of at least some contraband, yes?

                Okay, for what other “in the name of the greater good”s are you willing to apply this justification?Report

              • Avatar Scott says:

                Pat:

                Sadly you and Blaise seem to be expecting some sort of ESP or omniscience on the part of the COs to magically divine who is brought to them in error.  Sorry, the COs are there to apply the same rules to everyone for their safety as well as that of the other prisoners, no more no less.Report

              • Avatar BlaiseP says:

                Omniscience my ass, counsellor.   Until I brought up his erroneous arrest, you were out there making Stupid Noises like some piney-woods Barney Fife.  That you can bring yourself to at last preface your remarks with Sadly and Sorry is a vast fucking improvement on your previous bloviations.Report

              • Avatar Scott says:

                Blaise:

                To quote the movie, “I’m only saying this because I care – there are a lot of decaffeinated brands on the market today that are just as tasty as the real thing.”  Please try some yoga or anger management b/c all that anger and bitterness can’t be healthyReport

              • Avatar BlaiseP says:

                I’ll make my point really clear, so even you can understand.  You are a serious affront to human dignity and privacy.   Come wading in here, pulling up your goddamn suspenders like Clarence Fucking Darrow, only on the other side of the aisle, telling us what’s laughable and what’s not.   Go to bed.

                 Report

              • Avatar Scott says:

                Blaise:

                Do I get dinner before I have to go to bed? I don’t pretend to be Darrow but I do know a bit more about the law than you. If you had bothered to read the first page of the opinion you would see that the legality of the arrest wasn’t an issue before  the court.

                 

                 Report

              • Avatar BlaiseP says:

                I know enough to say the Fourth Amendment is dead.   It ought to be given a proper burial, it’s starting to stink up that part of the Constitution.   Take the shovel in your garage and start digging its grave.Report

              • Avatar BlaiseP says:

                It isn’t a separate issue.  Since Bell v Wolfish, strip searches have been authorised under certain circumstances.   From Breyer’s dissent:

                Those confined in prison retain basic constitutional rights. Bell v. Wolfish, 441 U. S. 520, 545 (1979); Turner v. Safley, 482 U. S. 78, 84 (1987) (“Prison walls do not form a barrier separating prison inmates from the protections of the Constitution”). The constitutional right at issue here is the Fourth Amendment right to be free of “unreasonable searches and seizures.” And, as the Court notes, the applicable standard is the Fourth Amendment balancing inquiry announced regarding prison inmates in Bell v. Wolfish, supra. The Court said:

                “The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. In each case it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.” Id., at 559.

                If I read you aright you’re saying no particular justification is required.  Though the plaintiff was arrested in error, detained in error and searched in error, it’s all good, eh?Report

              • Avatar James Hanley says:

                if I’m arrested, I want the CO’s to search everyone in order to stop contraband from entering the jail and effecting my safety.

                How does contraband make you safe?Report

              • Zing! There’s no Bill of Rights for your grammar!

                EDIT: Or your diction, to be precise.Report

          • Avatar BlaiseP says:

            Let’s also observe the warrant was issued in error and the fine had been paid.

            Petitioner was arrested during a traffic stop by a New Jersey state trooper who checked a statewide computer database and found a bench warrant issued for petitioner’s arrest after he failed to appear at a hearing to enforce a fine. He was initially detained in the Burlington County Detention Center and later in the Essex County Correctional Facility, but was released once it was determined that the fine had been paid.
            Report

            • Avatar Scott says:

              Blaise:

              The warrant was correctly issued b/c our angel was a no show at the hearing.  The error occurred when the warrant was not quashed once the fine was paid.  It may seem like a minor detail but I’m sure someone with your legal knowlegde can appreciate the difference.Report

              • Avatar BlaiseP says:

                This totally justified his arrest, detention and strip search.   I’m sure you’re right, counsellor.Report

              • Avatar Tod Kelly says:

                I don’t have a dog in this fight, but against my better judgement I have to ask…

                Why is it, exactly, that you keep referring to this guy as “our angel?”Report

              • Avatar Scott says:

                Tod:

                After Mike and Kolohe decided to play the race card in their comments, 11 and 12, I thought I would be snide.Report

              • Avatar Kazzy says:

                What exactly is the “race card”? How does one acquire it? Is it part of a game?Report

              • Avatar Scott says:

                Kazzy:

                I’m white so I don’t get a race card but Jesse Jackson never leaves home without it.Report

              • Can there be some kind of Godwin-esque rule that says as soon as you use the term “race card” you automatically lose an argument? Maybe we’ll call it the “Jesus Christ, Stop Being Such a Fucking Racist” Rule.Report

              • Avatar Kazzy says:

                I’m still not clear on what a “race card” is.  Why does Jackson have one and not you?  You have a race… we all do.  Can you explain it to me in a serious way, please?Report

              • Avatar Mike Schilling says:

                Point out where I mentioned race.Report

              • Avatar Mike Schilling says:

                You can’t, because I didn’t.  Once again it’s the people who insist they’re colorblind who see race everywhere.Report

              • Avatar Scott says:

                Mike:

                Does this sound familiar:

                ” Next time, he should shoot someone and claim self-defense..” Clearly more race baiting in the wake of your liberal whining about the Martin shooting. Even Kolohe got it so don’t act so clueless.Report

              • Avatar MikeSchilling says:

                Of course I was referring to the Martin shooting.  But I didn’t say a damned thing about race.  That’s your obsession, not mine.Report

            • Avatar Fnord says:

              If that’s your beef, you’re barking up the wrong tree. You want to talk about wrongful imprisonment and qualified immunity. That’s certainly a worthwhile thing to talk about. But if this decision had come out the other way, there’d still be no consequences for the whole “imprisoning him for a week” thing.Report

  7. Nob Akimoto Nob Akimoto says:

    I must’ve skipped the Con-Law class session where we went over how rights only applied to cherubic and lovely individuals who had done nothing wrong in their lives.Report

  8. Avatar Jaybird says:

    “Oh, the 2nd Amendment doesn’t mean *THAT*, it means that the people who are part of a militia can own guns and people who aren’t can have their guns taken away.”

    “Oh, the ‘Interstate Commerce’ law doesn’t mean *THAT*, it means that anything that has an impact upon interstate commerce falls under Congress’s jurisdiction.”

    “Oh no! People are twisting the 4th Amendment away from its plain language!!!”Report

    • I don’t understand your argument here. Are you saying that the Second Amendment doesn’t contain the word “militia” and that the Commerce Clause isn’t about interstate commerce, or are you saying that it’s always okay to ignore the plain language of a section of the Bill of Rights? Because 1 and 2 look alike, but 3 is a very different claim.Report

      • Avatar Jaybird says:

        It’s that when one wishes to argue that The Constitution is a document that needs to be interpreted with nuance, one should not be surprised when one hears arguments such as “it’s not unreasonable to make sure that someone going into the general population isn’t smuggling weapons or drugs”.

        Putting emphasis on how individual rights shouldn’t be taken to crazy extremes might find that “extremes” get less and less and less crazy every year.

        I mean, is it your argument that the 4th Amendment doesn’t allow for reasonable searches and seizures?Report

        • Avatar Jaybird says:

          (For the record, it’s my opinion that this decision is offensive, unconstitutional, and completely unsurprising.)Report

        • To be fair, I have been careful not to take any kind of position thus far, as I’m somewhat sympathetic to the conservative justices on this one. In particular, the caution expressed by Roberts and Alito strikes me as sober, and the arguments made by Breyer seem like they fail for precisely the reason so many were skeptical of the mandate’s constitutionality (i.e., lack of specificity as to where the line should be drawn).

          All that said, my only point re: you was that your argument didn’t (seem to) work the way it was presented. Perhaps if your third line was something far more like your clarification – in which the word “reasonable” is made to do the same work that “militia” and “interstate commerce” do in the other cases – it would be a little stronger. Because, of course, it would also then be correct. The only real disagreement I have with you here is that claiming one even *could* read the Constitution without “nuance” is nonsensical.Report

          • Avatar Jaybird says:

            Whenever someone in power tells someone not in power that their readings of their Constitutional protections need to be read with more “nuance”, you know what that means?

            The person in power is, once again, saying “I win”.

             Report

            • As a matter of course, you’re obviously right, but one of the problems for people who assume that their own personal political preferences can be read into the Constitution is that sometimes the document itself really does say something else. In a lot of cases, what that amounts to is “white guys win”. I don’t like it any more than you do.

              All that said, what exactly are you proposing instead? How in the name of the gods do you read “unreasonable” without nuance? What is the official definition of that term, and how would you apply it in every single case that might potentially happen?Report

              • Avatar Jaybird says:

                So we are left with the choice between abandoning it (sure, it’s an option), crazy adherence to it (if only it were an option), and picking and choosing which parts we abandon and which parts we keep.

                If we do that last part, we shouldn’t be surprised when people with power abandon the stuff they find inconvenient and keep the stuff they find convenient and this leaves you holding your cheeks open.Report

              • This isn’t even an argument. No one is “abandoning” anything. How would you even go about crazily adhering to terms like “unreasonable” or “cruel” or “unusual”? The entire point is that we have to actually, you know, do some work to figure out what the hell those terms even mean. Ditto the “militia” part – I realize you think “crazy adherence” means “ignore half of the sentence”, but please forgive me for wondering if that has more to do with your preferences than an attempt to rigorously interrogate the document.

                This pretense that you, being a libertarian, have the complete right vision of what the Constitution requires in all cases, is just that: a pretense. Maybe you really are correct, but it would be nice to see you argue for your position.Report

              • Avatar Jaybird says:

                Sure, I’ll rephrase my original comment.

                The 2nd Amendment says: A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.

                I am told that I should not be surprised to find that this is interpreted to allow for legislation preventing private citizens from owning handguns.

                Article 1, Section 8, Clause 3 says:

                [The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes;

                And this is interpreted to mean that Congress has the power to tell Angel Raich that she can’t eat the leaves of a plant she grows on her windowsill.

                When the Supreme Court comes out and says that someone pulled over for a traffic stop can be strip-searched and people start asking “But what about the 4th Amendment”, I tend to point them to the folks who have made “interpretation” their hobby… and people point out how necessary (and proper!) interpretation is.

                Know what you’re defending. Know that you’re not just allowing for your own cheeks to be spread by shrugging.Report

              • Okay, this is still not an argument. Does the 4th Amendment prohibit the strip searches in question here? Why or why not? Is it “unreasonable” for people to disagree with you? Again, why or why not?

                I realize you’re emotionally affected by the topic at hand, but I don’t think that does anything to prove that reading the Constitution in a way you don’t like is the wrong way to read it. Jaybird’s preferences are not actually what we use to determine what US law requires, even if that would make US law better on the whole.Report

              • And again (and again and again and again), your claims require interpretation of the Constitution! You don’t get to pretend that you know all the right answers and that all those people who have studied the thing for their entire lives are just insane for not agreeing with your “obvious” reading of the thing in question. It should maybe teach you just a little humility when you realize that not a single member of the Supreme Court – probably not a single member in the history of the Supreme Court – agrees with you personally about every single case. But apparently not.Report

              • Avatar Jaybird says:

                Is there *ANY* limitation on whether the police can strip-search you after they’ve detained you and will be putting you into the general population? *ANY AT ALL*?

                Let’s look at the 4th Amendment: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

                It seems to me that, yeah, a universal policy of instituting a strip search is an obvious violation of privacy, dignity, and, yes, the 4th Amendment. It gives too much power to the authorities and provides them with a method of punishment to use against someone before a trial.

                It should also be pointed out that these strip searches were found to be okay even if there were no reason to believe that the detainee had contraband.

                Let me say that again: these strip searches were found to be okay even if there were no reason to believe that the detainee had contraband.

                And in the same way that the 2nd Amendment allows for the government to say “you can’t own a gun” and the commerce clause allows for the government to say “you can’t eat that”, the 4th Amendment allows for nuns to be strip searched after being arrested at an anti-war protest.

                And people who say that it should be self-evident that the government is prevented from such things are, ahem, “emotionally affected by the topic at hand”.Report

              • Nob Akimoto Nob Akimoto says:

                So out of curiosity…where in the Constitution does it say the Judiciary even gets the ability to interpret whether a statute is Constitutional?Report

              • At the risk of being pedantic, something isn’t obvious if it’s not readily apparent to, you know, everyone. I understand what your argument is; I just disagree with it. Not strongly, mind you. As I said a bunch of times, I think caution is warranted here, lest we err too far on the side of the state.

                But really, my point is that you’re interpreting while simultaneously claiming that you’re not. Show me a pure logical argument, without adding any steps or axioms or observations, that goes directly from the text of the 4th Amendment to the question at hand. YOU CAN’T DO THAT WHICH MEANS YOU ARE INTERPRETING.

                Forgive me for the caps, but you just aren’t listening.Report

              • Also, what Nob said. Forgive my language, but this fucking libertarian arrogance is infuriating. You don’t know everything, so stop acting like a jackass.Report

              • Avatar Jaybird says:

                It doesn’t.

                That a hill you’re willing to die on?Report

              • Nob Akimoto Nob Akimoto says:

                So in that case, doesn’t the whole notion of judicial review rest on a parsing/nuanced reading of the Constitution itself?Report

              • Avatar Jaybird says:

                There are two kinds of “interpreting” here.

                If I said that “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” means that a strip search of someone who is not suspected of holding contraband is a violation pf their person, I’m interpreting in the exact same way as someone who says that strip searches of anti-war protestors is not a violation of their persons.

                We’re effectively allowing for police to arrest people, strip search them, then let them go without charging them.

                And there is no limitation against it… because, of course, it’s not tautologically true that “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” means that the cops can’t arrest people, strip search them, then let them go without charging them.

                Hey, we’re both interpreting things, right?Report

              • We are both interpreting things. I’m not sure why this strikes you as such a novel prospect, but here we are.

                That said, is it your position that constitutional interpretation should proceed along the lines of determining the likely practical outcome of a decision, weighing the relative strength of the individual’s rights vs. the state’s power were that outcome to take place, and then making a determination based on whether that strikes you as an improper arrangement?

                Because, dude, that’s waaaaay more radical than anything I think about constitutional interpretation.

                EDIT: I misspoke slightly. By “likely” I mean “possible”. Which is super radical.Report

              • Avatar Jaybird says:

                The problem with “interpretation” is that some interpretations require, shall we say, more emphasis on how everybody interprets than other interpretations do.Report

              • Avatar Jaybird says:

                “I misspoke slightly. By “likely” I mean “possible”. Which is super radical.”

                How likely does it strike you that the argument that you can’t (falsely) yell “fire” in a crowded theater be used as justification to jail a war protester (and, such imprisonment would not be an infringement of his Rights protected by the First Amendment)?

                I don’t see how the government has earned the benefit of the doubt here. If there’s any question over which way the interpretation ought to go, it ought to go to the individual.

                Which, apparently, is super-duper radical.Report

        • Avatar Michael Drew says:

          I don’t understand what the other option is.  We have to interpret the damn things.  We should just do it all-knee-jerk, all the time?  I’m good with nuance, and I’m fine dealing with the arguments that come back at me as a result.  The whole process for me is about drawing the distinctions – some finer, some more obvious, but in all cases based on arguments of all kinds.  Just because you open the door to an argument doesn’t mean the distinction can’t be made that avoids direct inconsistency, upholds textual meaning, and avoids grotesquely unjust outcomes.  That’s what the whole enterprise is. I don’t really see what other vision there is.Report

          • Avatar Jaybird says:

            In practice, this means that a guy has to spread his cheeks and cough.Report

            • The alternative is that he is disappeared into the night when he gets inconvenient (although we’re getting there too). What’s your point? That you don’t like the Constitution? I’m shocked, shocked.Report

              • Avatar Jaybird says:

                Erm, I’m the one arguing that we should keep the Constitution and follow it to an insane degree.

                You’re the one explaining that, of course, the Nth Amendment doesn’t mean *THAT*.Report

              • Right, but as I’ve pointed out repeatedly at this point, your claims are meaningless. What does “follow it to an insane degree” entail? Because it sure sounds to me like “just do what Jaybird wants us to do”.Report

              • Avatar Jaybird says:

                It’s more of a “you don’t have the right to tell other people to do what Jaybird says you don’t have the right to tell other people to do”.

                This includes, for example, the things that Kennedy, Roberts, Scalia, Alito, and (for the most part) Thomas are saying the government has the right to do in this case.Report

              • And you came to the conclusion that THAT is what the Constitution requires in all cases without any interpretation at all? Because I’m fairly certain that exact text does not appear anywhere in the document.Report

            • Avatar Michael Drew says:

              In practice it could mean a lot of things – worse things the worse we let ourselves be at the arguments (which crossing arms and humphing that things should be obvious tends to make us).  But that doesn’t tell me anything about what the alternative is.

              Admitting that there will be interpretation doesn’t mean there aren’t cases where things should be obvious, and may be recognized as such.   But you have gain that recognition by winning the argument about whether it’s in fact obvious.

              It’s true that once you admit that it’s not all obvious, you’re stuck having to argue these things, including what should be obvious.  But it’s just not tenable to try to hold that it’s all obvious.Report

  9. Avatar James K says:

    The title of you post reminds me of this:

    The Founding Fathers didn’t set up a government based on trust. They could have designed a government based on trust in our ability to govern fairly but they knew that power corrupts so they invented checks and balances. That was genius. The Founding Fathers did not want me to trust you and they did not want you to trust me.

    Now if someone could remind the Supreme Court of it.Report

  10. Avatar 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

    • Avatar Mike Schilling says:

      What’s the significance of Thomas concurring except for section IV?Report

      • Avatar Burt Likko says:

        That’s a good question, since Thomas didn’t write to explain himsself on that point. What it does legally is deny part IV the binding precedential effect of the rest of the opinion, and thus magnifies the importance of the Roberts and Alito concurrences.

        So we’re left with an opinion that, contrary to its description in the OP, only appies to an in-processing situation and is of unknown value in other contexts.Report

        • Avatar Burt Likko says:

          The more I think about this, the more I think the Roberts and Alito concurrences make it six out of nine Justices who indicate that strip searches in contexts other than in-processing are not just uncertain but doubtful and saying this rule allows carte blanche for strip searches is a significant misreading of the opinion.Report

          • This is my take as well, and it also seems about right to me, constitutionally speaking.

            As a matter of policy, I pretty strongly oppose these strip searches. But as a matter of policy, I oppose vast swathes of our criminal justice system, so maybe that’s not surprising.Report

            • Avatar Scott says:

              Ryan:

              Why oppose the searches? Do you really feel it is unreasonable to search folks to ensure the safety of jailers and other prisoners?Report

              • Nob Akimoto Nob Akimoto says:

                I think there’s a world of difference between “search for weapons and contraband” and “invasive strip search including orifice checks” particularly for cases of in-processing for an initial pre-trial detainment.Report

              • Avatar Scott says:

                Nob:

                What is the difference? Where do you think men and women hide stuff to get it into jail? Why do you think it is called keistering?Report

              • Avatar James Hanley says:

                Scott,

                If you’re able to hide a significant weapon up your ass, you just might want to talk to your physician.Report

              • Or a producer of adult films, if you’re so inclined.Report

              • Avatar MikeSchilling says:

                C’mon, James, libertarians are always pulling things out of their ass.Report

              • Avatar wardsmith says:

                If it is a contest, the prisoners win.Report

              • I do not thank my lucky stars frequently enough that I have a job in which no one around me ever says, “My ass is bleeding.”Report

              • Avatar James Hanley says:

                Wait, Mike…I’m a libertarian.  I think Scott is a conservative.

                Perhaps the joke travels well (like the old joke about why Ohio State University uses artificial turf on their football field…).Report

              • Avatar MikeSchilling says:

                Yeah, I don’t think there’s anyone that joke doesn’t apply to.Report

              • Avatar James Hanley says:

                I do not thank my lucky stars frequently enough that I have a job in which no one around me ever says, “My ass is bleeding.”

                As a college prof, you’d think this would apply to me to.  But oddly, I did hear that once* in the scope of my professional duties…

                ________________________________
                *Using somewhat more sophisticated medical jargon, but to the same effect.Report

              • Avatar Stillwater says:

                So, really, you’re just saying criminals have no penalogical right to keistering, no?

                Fair enough.Report

              • Avatar Burt Likko says:

                The level of discussion will pretty much always trend down to that joke, doesn’t it? And we wonder why more women don’t hang out here…Report

              • For starters, because I more or less agree with Jaybird that this is not really about the safety of anyone. It’s about dominance, power structures, and intimidation.

                To the extent that it is about safety, I’m with Nob. You can search for weapons and contraband without stripping people down and watching them shower.Report

              • Avatar Kazzy says:

                If it WAS about safety, then why aren’t we stripping and showering before every plane ride?Report

              • Avatar wardsmith says:

                Kazzy, shhh! you trying to give *THEM* ideas?Report

              • Avatar Scott says:

                Ryan:

                How do you search folks for contraband and check for gang tats w/o stripping them? The shower is to delouse and clean them for sanitation. What is so wrong with that or do you see another hidden plot?Report

              • Hidden plot? I don’t see any hidden plots. I just don’t trust the police. I don’t see why anyone would.Report

              • Avatar Scott says:

                Ryan:

                Fine you don’t trust cops. That still doesn’t explain how the jailers are supposed to search for contraband and gang rate w/o a strip search. Maybe psychic jailers will read minds?Report

              • Metal detectors? Pat downs? Do people really need to remove their underwear in order to be checked for a weapon? Does every single person need this treatment, regardless of what they were arrested for?

                What contraband in particular are we trying to prevent from entering the jail? I should think weapons are number one. It’s pretty easy to check people for weapons without stripping them completely naked (or at all, in most cases). What else really poses a serious threat to order? The word “contraband” is doing a lot of work here.Report

              • Avatar Kazzy says:

                Maybe we should let TSA run the jails.  Or CO’s run airport security.  At the very least, we should demand consistency…Report

              • I’d be far more comfortable letting TSA do their thing with people who have actually been arrested for crimes more serious than “wanting to get on an airplane”.Report

          • Avatar Jaybird says:

            What do we mean by “carte blanche”? If they’ve arrested you and will be putting you in the tank, are there limits on whether they can strip search you?

            Are we only talking about strip searches prior to a trip to the jail house proper?

             Report

            • Avatar Burt Likko says:

              We’re not talking about strip searches prior to a trip to the jail house at all. We’re only talking about a strip search when you are actually in the jail house proper. And it’s not clear to me that any arrest will necessarily lead to an in-processing at a jail (in most cases, the cops have discretion to let you go O.R., or in some cases an expedited bail hearing or arraignment can occur), or that in-processing requires a strip search — the jailers have discretion to do or not do this; the issue is that the subject’s rights against unreasonable search and seizure and privacy are effectively subordinate to the “legitimate penalogical interests” of the jailers when they exercise that discretion, creating a serious potential for abuse of state power.Report

          • Nob Akimoto Nob Akimoto says:

            I think I was perhaps a bit unclear in the OP of what I meant by “under any contexts”. As the ABA’s amicus filing makes clear, the problem with this ruling is that it argues that any form of in-processing can be used as a pretext for an invasive strip-search, even when there’s no clear justification for such a search.

            I’m worried this is another extending of police authority on arrest, much like how the Belton/Thornton cases gave police warrantless search power in traffic stops so long as they could connect it to an arrest. Because by definition an arrest/detention will result in an in-processing, it seems to me that this gives more power to the state to conduct invasive searches.Report

    • Avatar Will H. says:

      A few points of contention here, because these still haven’t come up in the thread.

      First of all, this was a pre-trial detainee. Presumably, after the warrant was issued, he then had a right to appear for a bond hearing. I believe the search occurred prior to that hearing.

      Secondly, these were not prison officials. This was a county jail operated by the Sheriff acting in official capacity and the County.

      And I think Kennedy would find a way to side with the police, even if the police broke into his grandmother’s house and raped and strangled her while she was in the shower.Report

  11. Avatar Jason Kuznicki says:

    Have you found anyone who previously passed as a libertarian, and who approved of this decision?  The libertarians I know have universally condemned it.

    If you find anyone like this, please let me know.  I’ll happily join you.  If you haven’t, then what prompted the post?Report

    • Avatar Burt Likko says:

      Methinks Nob was obliquely referring to the libertarian-based arguments from the Obamacare hearings (“Can the government make you buy broccoli?” etc.).Report

      • Right. It seems he was directing his comments to the justices themselves, who seem very worried about certain kinds of liberty for certain kinds of people. Fair or not, this is how libertarianism has gotten the reputation it has in certain circles.Report

      • Nob Akimoto Nob Akimoto says:

        As Ryan notes, my comment is primarily directed at the Justices themselves.

        I beg your pardon if it seems I was making a point against libertarians in general. My point was to more argue that it’s ridiculous that Kennedy can regard this as being a legitimate use of government power and deference to law enforcement authorities is acceptable.Report

    • Nob Akimoto Nob Akimoto says:

      Also, it’s notable that there’s 5 different posts about the President’s comments regarding the Obamacare case but zero mention of this decision at all at Volokh.Report

  12. Avatar JDuty says:

    I can say, from experience, that strip searches are necessary for keeping the peace in a correctional setting. The Police, in most cases, do not conduct strip searches. Correctional Officers do though. When someone is processed into a jail or prison, they go into a secured area where weapons are not allowed. I have been stabbed in a jail and I know first hand of how dangerous that contraband can be when its smuggled in. The blade that stabbed me was no bigger than a key chain sized swiss army blade, but it was effective in a world where no weapons were allowed. Even drugs brought in can pose a huge threat to safety. The facility I worked at had a few folks die from overdoses through the years I was there and in all of those cases, it was because contraband had been smuggled in. If the dude that stuck me had been stripped out, I wouldnt have bled that night. To answer the question of where the rights of prisoners and incarcerated idividuals stand, I say they can stand right next to where my rights to not be feloniously assualted go. If that means some poor schmuck has to unclothe himself and “do the dance”, then so be it. Anybody that’s ever been into a locker room at a gym has seen some total stranger in the nude. Moreover, any man knows what male genetalia looks like. Its pretty standard equipment and we’ve all got it so let’s be big boys and do what needs to be done to keep things moving safely forward. That dude that is conducting the strip search doesn’t like it any more than the person actually getting naked, trust me!  Someone earlier had posed the question as to whether the guards should be strip searched as well. The guards and COs there have passed the mandatory background checks and have shown integrity on the job. No, they shouldnt have to be searched. There’s always going to be cases where guards and COs are bringing in the stuff, but they are very few compared to the number of COs that are watching for that stuff and the good COs WILL turn the bad ones in.Report