John Whitehead's Commentary

In a devastating 5-4 ruling that not only condones an overreach of state power but legitimizes what is essentially state-sponsored humiliation and visual rape, the U.S. Supreme Court recently declared that any person who is arrested and processed at a jail house, regardless of the severity of his or her offense (i.e., they can be guilty of nothing more than a minor traffic offense), can be subjected to a strip search by police or jail officials without reasonable suspicion that the arrestee is carrying a weapon or contraband. The five-man majority rationalized their ruling as being necessary for safety, security and efficiency, the government’s overused and all-too-convenient justifications for its steady erosion of our freedoms since 9/11.

This ruling stems from the case of Albert Florence who was erroneously arrested for failing to pay a traffic fine and forced to submit to two egregious strip and visual body-cavity searches at two different county jails. Ironically enough, the supposed crime for which Albert Florence was arrested (having an unpaid traffic fine) is not a criminal offense in New Jersey, while being strip searched for something other than a crime is a criminal offense. Florence, an African-American man in his mid-thirties, was on his way to Sunday dinner in 2005 with his then-pregnant wife and 4-year-old son when they were stopped by a New Jersey State Police trooper. Florence’s wife was driving. However, after showing his ID, Florence found himself handcuffed, arrested and taken to jail. After spending six days in jail, Florence was finally able to prove his innocence.

Outraged, Florence sued the jail officials who had needlessly degraded his bodily integrity. A federal appeals court sanctioned the blanket strip search policy, which was then affirmed by the U.S. Supreme Court. In a nutshell, what Justice Anthony M. Kennedy, writing for the majority, concluded was that it is impractical—“unworkable” was the phrase used—to expect overworked jail officials to have to take the time to distinguish between harmless individuals guilty of nothing more than driving without a seatbelt and those who pose a true threat and may be reasonably suspected of carrying drugs or weapons.

Of course, the Constitution insists that a workable solution must be found—one that squares with the Bill of Rights. But in an age when the courts show greater deference to bureaucracy than democracy, making life easier for harried jailers trumps the Constitution. Consequently, any person who is arrested, no matter how minor the alleged criminal act, can now be subjected to a degrading strip search. Examples of minor violations which could now lead to a strip search are many and include “violating a leash law, driving without a license and failing to pay child support.”

These blanket strip searches are not for the faint of heart. A typical strip search, as described in a prison manual and cited by Justice Stephen Breyer in his dissent, involves:

a visual inspection of the inmate’s naked body. This should include the inmate opening his mouth and moving his tongue up and down and from side to side, removing any dentures, running his hands through his hair, allowing his ears to be visually examined, lifting his arms to expose his arm pits, lifting his feet to examine the sole, spreading and/or lifting his testi­cles to expose the area behind them and bending over and/or spreading the cheeks of his buttocks to expose his anus. For females, the procedures are similar ex­cept females must in addition, squat to expose the vagina.

One can certainly understand the need for such precautions when dealing with dangerous criminals. But is there really any reason to subject a mother arrested for driving with her children unbelted to such an invasive strip search? What about the nun arrested for trespassing during an antiwar demonstration? Or the activists arrested in a free speech protest or those who engage in acts of nonviolent civil disobedience? In keeping with this ruling, any and all of these individuals could now find themselves subjected to exposing their naked bodies in a variety of poses designed to “show all” to the prying eyes of government officials.

Frankly, I doubt that Anthony M. Kennedy, John G. Roberts Jr., Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr.—the five justices who seemed to have no trouble inflicting such humiliations on the populace—would be inclined to condone such dehumanizing treatment were there even the slightest possibility that they might be subjected to it. It is a testament to the elitist mindset that prevails in our judicial system today that these five men can rest easy knowing that they will never be subjected to any such violation of their persons. It is only average Americans—the so-called “great unwashed masses”—who will have to worry about being subjected to this state-sanctioned brand of humiliation and bodily violation. (It may seem a paltry consolation for those forced to endure these searches, but at least Justice Breyer, joined in his dissent by his female counterparts on the bench—Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan—recognized that these visually invasive strip searches constitute a serious invasion of privacy.)

This ruling is far from the first occurrence of the Supreme Court’s elitism, detachment, cluelessness about how average Americans live, and lack of concern about the degree of humiliation to which we are subjected by government officials. In their decision in Kentucky v. King, for instance—a ruling that completely undermines the Fourth Amendment requirement of a warrant before entering someone’s home—the Court held that police officers can forcibly enter a person’s home, without a warrant and for nonviolent offenses, based only on the mere suspicion that the occupant may possess an illegal substance (most likely marijuana). Now with its decision in Florence v. County of Burlington, the Court has driven another stake through the heart of the Fourth Amendment, the constitutional guarantee that people should be free from unreasonable search and seizure by government agents.

This ruling also further reinforces the idea that we are all to be treated as suspects. A forcible strip search upon arrest inverts the presumption of innocence into the presumption of guilt. Before even being allowed to call a lawyer, the arrestee is faced with the dehumanizing treatment of a strip search, a security measure traditionally reserved for those suspected of a serious crime or already proven guilty.

Doubtless this ruling will pave the way for even greater abuses to be meted out on the populace by the total security state. Now that these blanket strip searches no longer have to be restricted to hardened criminals and suspected murderers, it won’t be long before folks arrested for innocuous offenses such as jaywalking or kids who start a food fight at school find themselves forced to strip naked and spread eagle. What’s to stop the police from strip-searching children accused of minor offenses such as schoolyard scuffles? It’s not so far fetched as one might think. Baltimore police have come under fire for arresting and handcuffing three 9-year-old girls and an 8-year-old boy, a scenario which, under this ruling, could have resulted in a strip search of young children.

The Supreme Court’s ruling in Florence is also an affront to international law and universal human rights, which the United States purports to uphold. According to Article 5 of the UN Declaration of Human Rights, “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” Yet there is nothing more degrading or inhuman than forcibly strip-searching a person arrested for a minor crime. Just ask Albert Florence who described the experience of being strip searched as “humiliating. It made me feel less than a man.”

Despite giving the green light to these blanket strip searches in the name of safety and security, the Supreme Court has in the past recognized that strip searches are traumatic. In 2009, the Court ruled that school officials’ strip search of a 13-year-old girl was an unconstitutional violation of her rights. Unfortunately, despite the fact that police and jail officials are not trained in matters of constitutional law, let alone matters involving human dignity and bodily integrity, the justices deferred to the judgment of police and jail officials in Florence. Yet having essentially gifted jailers with carte blanche authority to strip search individuals at will, the Court may find it has opened a proverbial can of worms.

Although most Americans are very compliant, many will not readily submit to these strip searches—especially not if they are innocent of any serious criminal wrongdoing. It’s unlikely that a woman arrested for not seat belting her child or paying a traffic ticket on time will placidly disrobe and spread her body parts. And what will happen when she refuses? Will she be forcibly stripped of her clothes? Will she be subjected to an enhanced patdown and virtual strip search, akin to what the TSA has been meting out to passengers? Will she find herself facing even more onerous charges carrying even great penalties, such as those levied against individuals found to have resisted arrest?

In light of the fact that approximately 13 million people are introduced to American jails in any given year, we may soon see millions of people needlessly strip-searched over minor offenses such as unpaid traffic fines. What remains to be seen is whether this license to strip-search will become the next weapon of compliance to be used against those who question the power of the state. For the moment, however, thanks to the Supreme Court, visually invasive strip searches will at least be the hallmark of jailhouses across the United States.

WC: 1605

ABOUT JOHN W. WHITEHEAD

Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His most recent books are the best-selling Battlefield America: The War on the American People, the award-winning A Government of Wolves: The Emerging American Police State, and a debut dystopian fiction novel, The Erik Blair Diaries. Whitehead can be contacted at staff@rutherford.org. Nisha Whitehead is the Executive Director of The Rutherford Institute. Information about The Rutherford Institute is available at www.rutherford.org.

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