Jail strip-searches for minor offenses a blow to the Constitution

Jail strip-searches for minor offenses a blow to the Constitution

April 3rd, 2012 in Opinion Times

In this Oct. 11, 2011 file photo, Albert Florence, right, sits at his home Bordentown, N.J., with his attorney Susan Chana Lask. In a 5-4 decision, the Supreme Court ruled against Florence, who faced strip searches in two county jails following his arrest on a warrant for an unpaid fine that he had, in reality, paid. An ideologically divided court ruled today that jailers may perform invasive strip searches on people arrested even for minor offenses. (AP Photo/Mel Evans, File)

In this Oct. 11, 2011 file photo, Albert...

Photo by Associated Press /Times Free Press.

In another 5-4 decision that followed the increasingly familiar ideological divide, the U.S. Supreme Court ruled Monday that jail guards may strip-search individuals arrested for any offense, including minor ones such as a traffic violation. The ruling needlessly weakens the Fourth Amendment's safeguard against unreasonable searches.

Justice Anthony Kennedy said in the majority opinion that if an individual is to be incarcerated with the general jail population, "courts must defer to the judgment of correctional officials unless the record contains substantial evidence showing their policies are an unnecessary or unjustified response to problems of jail security." Kennedy wrote that it would be "unworkable" to make an exception for people arrested minor offenses. The court's highly politicized right wing -- Chief Justice John G. Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. -- concurred with Kennedy that strip searches were reasonable.

The court's liberal minority took a far more balanced view.

Justice Steven G. Breyer, writing for himself and Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan, said jailers should have reasonable grounds before conducting an invasive strip search, which generally requires an individual to remove his or her clothes, to be subjected to a body cavity search and to allow their genitals to be inspected. Breyer correctly wrote that such searches were "a serious affront to human dignity and individual privacy" and should be used only when there was reason to expect that a person was hiding something.

The minority's opinion certainly matches the Fourth Amendment's view of unreasonable searches more closely than the majority's blanket approval of strip searches.

The case before the court was particularly egregious. The plaintiff was arrested in New Jersey because a search of records during a traffic stop incorrectly indicted he had not paid a fine. The plaintiff told the arresting officer the fine had been paid, but he was nevertheless arrested, subjected to strip searches at two jails and incarcerated for six days before he was allowed to prove the fine had been paid. He sued the county where he had been arrested for violating his privacy. Given the circumstances, his claim certainly had merit.

Earlier rulings regarding those charged with minor offenses but who had no compelling reason to be strip searched were mixed. Some courts approved them. Others said they were lawful only if there was reasonable suspicion that the person had contraband or weapons. Monday's decision removes the sensible requirement cited by the latter.

The ruling recklessly redefines the legal meaning of "reasonable." It also continues, even accelerates, the conservative majority's determination to broaden police powers while eroding constitutional protections and civil rights. The dangerous and partisan politicization of the U.S. Supreme Court, it is apparent, continues unabated.