Strip Searches and Context: the Albert Florence Case
By Mary W Maxwell, PhD, LLB
Too bad. Just when I was settling down to a career of ‘proper’ legal commentary, after receiving my Bachelor of Laws degree, along comes this strip-search case, to be argued at SCOTUS on October 12, 2011. I know I should stay my hand. But then I’m a Constitution man, so here goes.
One day, eight years ago (court cases take time, you know), Mr Albert Florence did something he shouldn’t have done in New Jersey. Namely, he was DWB, “driving while Black.” This led to a fine, which he paid promptly, in 2003.
Again in 2005 he committed DWB. Or, if you want to be precise, it was RWB, riding while Black; his wife was actually the one at the wheel and he was in the passenger seat.
That’s all I will say about ‘race.’ I have a policy of not honoring the category of Black, White, etc (and in the Troy Davis case, it seemed to me that 'race' prevented people from seeing what was really going on).
Still, one does need to know how Albert Florence’s case got started, and pigmentation was probably critical. In 2005, the state trooper phoned HQ, and was told there was an outstanding arrest warrant for Florence (From now on I’ll use his first name, Albert, instead of his last name, Florence, which, being a girl’s name, may cause confusion.)
It later turned out that not paying a fine is not an arrestable offense, but you can’t blame the trooper; he sees the words “arrest warrant” and he takes the guy to jail.
At the jail, the guy, Albert is asked to strip, and later he is moved to another jail where this frolic is repeated. “Frolic”? I don’t know what to call it; you know what I am referring to. I intend here to avoid all description of the humiliation Albert endured.
Granted, humiliation, and even trauma, is part of the case which he takes to United States Supreme Court this Wednesday. But there is no need for us to get emotional when analyzing the straightforward legal issue. The Bill of Rights says no such thing will ever happen to an American.
The Supreme Court need only make that clear. Here is the dear Fourth Amendment:
“IV. 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.”
Golly, isn’t it wonderful to be an American? I happen to be also an Australian, but Australia so far has no Bill of Rights. Worse, in the state of South Australia where I live, every police officer is armed with an all-purpose search warrant that has a shelf life of 6 months. He or she need not make a case to a magistrate to justify a potential search. Baaaad!
We Americans would never tolerate that. Um…. Would we? How do we enforce our non-toleration? Or, to put it positively, how do we make the Bill of Rights work? I believe it takes citizen manpower: neighbor protecting neighbor.
In 1791, when we ‘wrote it all up,’ there may have been a feeling that the law would work on its own, as though drafting the Fourth Amendment perfectly was enough to keep the authorities from conducting intrusive searches.
It could have worked. If judges were persons of integrity and fortitude, any violations committed by police or jailers could be terminated. Today our government is working against us, not for us, so the new ‘interest group’ has to be that of neighbors, persons who delight in what ‘America’ is.
And that has to mean people who will make some effort, as magic is not going to come to the fore.
That said, this article will proceed to do two things: First, it will summarize the way in which the parties to the case have expressed their pleadings (It is not a prosecutor versus an accused; Albert has filed a civil suit under the Civil Rights Act and so he is the plaintiff; various New Jersey officials are the defendants.)
Second, I will do my thing. “My thing” goes outside the case to consider the context. For more details of the case, see Lyle Denniston’s excellent article at SCOTUSblog.com.
Summary of Albert Florence v Board of Chosen Freeholders
In 1979, in Bell v Wolfish, the Supreme Court was asked to rule on the constitutionality of a strip search of a prisoner. Even without knowing about that case, you can be safe in guessing that SCOTUS OK’d the strip search, since, as everyone who watches TV dramas knows, strip-searching in jails is commonplace.
It couldn’t be commonplace if the highest court in the land had taken a stand against it, right? Ever since Marbury v Madison in 1803, the role of the Supreme Court has been “to state what the law is.”
So it must be that the law, that is, the interpretation of the Fourth Amendment, says there ARE times when a strip-search is allowable. The current precedent for this is Bell v Wolfish.
Let’s see: how can that be? We were given certain rights (oops pardon me, I don’t believe we were ever ‘given’ a ‘gift’ called a right; rather, we agreed to prohibit the State from hurting us, no matter how difficult that may be).
Yet we always acknowledged that an occasion could arise when the society as a whole would say that a right must give way, for a particular purpose.
Sometimes this was built into the Right. For example, the Fifth Amendment says “nor shall private property be taken for public use, without just compensation.”
In other words, please count on the security of your property, but if the town really needs to build a railroad through your house you may end up with less than a perfect right – the house will be demolished but you will be paid a fair price.”
Even the Fourth Amendment has the built-in exception that a search of a person’s home may be authorized, and a seizing of the person may occur, as long as the safeguard of obtaining a judicial warrant is followed.
Yet strip-searches in jails are now ‘policy’ in about 30 of the 50 states!
In the case at hand, as well as in Bell v Wolfish, the argument proffered is that it is for the good of all that a prisoner be given an intimate search, if he is coming in from the outside.
He may be bringing in contraband, such as drugs, or a weapon with which to harm other prisoners or staff. (Re the latter, it has been noted that prisoners could simply be put thru a metal scanner.)
In the present case, the arguments about ‘the greater good’ even go so far as to include the good of the prisoner. A gang in the jail may intimidate him to bring drugs back from furlough, right? So we should protect prisoners by searching them! (Ahem. No need to fall for that nonsense.)
As mentioned, Albert Florence is suing the jail. He already ‘won’ in the federal district court, insofar as they noted that he had no charges pending against him and should not have been arrested.
But his attorneys have asked SCOTUS to rule on this one question: the constitutionality of strip searches of people accused of minor offenses. (It’s the kind of case ACLU used to take, before it went rogue.)
Given what SCOTUS did recently in the Troy Davis case, and what the Third Circuit Court (i.e. federal appeals) did in Gallop v Cheney, I personally do not rest easy that the judges (I no longer call them Justices, just can’t bring myself to say it) will speak up for our Fourth Amendment right.
One judge has already said that a prisoner has ‘diminished expectations of privacy’ and therefore the strip search is tolerable. I know that I may someday be arrested and, yes, I expect in jail that I would suffer many losses of privacy.
For example, guards could legally enter my ‘bedroom,’ my cell, while no one can legally enter my bedroom at home. But that is
just a physical fact of my being in jail instead of being at home. I definitely don't think "losses of privacy" would have to extend to orifices of my body, thank you.
Forget the ‘diminished-expectations’ logic; it perverts the Bill of Rights. The Bill of Rights cries out “Never let your expectations be diminished, Boys and Girls. That is a slippery slope you mustn’t get on.”
Context, Context, Context
Here in Australia, when you are selling a house that is located in a good position, you advertise is as having “Posi, Posi, Posi” (paw-zee). I shall now argue that when anticipating the Supreme Court’s likely behavior in Albert’s case, we should consider Context, Context, Context.
The following list of context items is Mary’s rant, not legal scholarship, OK?
Context Item 1. Everybody knows there is major drug trafficking in jail. Well, then, it must be something the prison system condones. There is thus no point dramatizing make-believe horror at the prospect of drugs-in-jail, in order to justify strip searches. (“Gimme a break, Man.”)
Context Item 2. Everybody knows that weapons can be tiny and concealed. Not every weapon is a SAM (surface-to-air missile). Couldn’t the prisoner bring in one of those cute poisons that the CIA uses? He could sew it into the hem of his jeans, making the strip search a waste of effort. (Hey, an expensive waste of manpower! We need to make a profit in our jails nowadays! For Pete’s sake, would somebody please run a cost-benefit analysis?)
Context Item 3. I realize this one could be a touch intellectually challenging for SCOTUS, but here goes: There is no need to adhere to Bell v Wolfish. It mattereth not what the SCOTUS judges said in that case. The highest court in the land is never bound by any other court’s precedents, not even its own. Fresh thimking is allowed. (Thimk! Thimk!)
Context Item 4. Speaking of drugs-in-jail, how would the prisoner on furlough have acquired them from the street? Where do drugs come from? Yeah I know, heroin comes from Asia and cocaine from Latin America, but how do these things pass through Customs? Reporters have discovered how it is done: Bush and Clinton personally arranged it! So why doesn’t SCOTUS issue a bench warrant for the arrest of those two, neither of whom is in the White House at the moment? (Come on, Sonia, do it!)
Context Item 5. Back to the worry that a prisoner, harboring a gun up his kazoo, might use it to harm staff, don’t staff carry Tasers? Aren’t many prisoners forced to wear stun belts these days? I would have imagined there is nothing more vulnerable than a prisoner, even an armed one. All you’d need to do is turn on the Taser to bring him to the ground. As for the gun he has put up his kazoo being itself a Taser, no way. (It don’t fit.)
Context Item 6. Abu Ghraib. Everybody knows that the ‘sexual humiliation’ we practice in Iraq has nothing to do with ‘interrogation,’ in the sense of eliciting information. How do we know? Because information can easily be forced out via sodium amytal. Nah, the sex stuff is for its own sake (Wayne Madsen says it is filmed as porn). The point of humiliation is humiliation. The court knows why it is supposed to approve strip searches as “constitutional”. The day cometh when it will be necessary to break us all down by any kind of demoralization. SCOTUS is merely greasing the skids.
Context Item 7. That’s probably why Mr Albert Florence was arrested in the first place in 2003. He has a good job and an impressive house. Baaaaad. Must not allow people to feel strong like that! How can the rulers rule us if we go strutting around like we own the place? Huh?
Context Item 8. The Brian Nichols case. I refer to it in my new book, “Thou Shalt Not Kill Troy Davis.” The Nichols case, which involved the shooting of Judge Roland Barnes and Atlanta Customs official David Wilhelm, was a complete frame-up. Probably Albert Florence’s case is, too.
“Psychological Operations” be the name of the department at the Pentagon that looks after this specialty.
Mary W Maxwell, PhD, LLB can be reached at her website ProsecutionForTreason.com. If you are age 18-30 and want to run for office in 2012, she would like very much to hear from you.