Now that March Madness has come to an end, it is the season to begin watching the Supreme Court of the United States with great attention. Last week, the court heard three days of argument on the Affordable Health Care Act, and on Monday the court released its decision in the case of Florence v. Board of Freeholders, a New Jersey case concerned with the constitutional limits on when corrections officials may do strip searches of people in custody. The decision in the health care case undoubtedly is going to take some time, and how the justices will vote on the various issues presented by the case is still difficult to determine. However, the decision in the Florence case is now published and its facts and reasoning are important.
Albert Florence was driving when stopped by police. When the police discovered there was an outstanding warrant for Florence, they took him into custody and placed him in the county jail. In fact, the warrant, which was based on Florence’s failure to pay a fine, was out of date. The fine had been paid, but the court computer system had not yet updated his file. Nonetheless, Florence spent six days in two county jails. While there, he was subjected to multiple strip searches. Florence sued Burlington County, N.J., because he believed that he had been treated in this way because he was black and that his constitutional rights had been violated.
In a 5-4 decision, strictly along political lines (Roberts, Alito, Scalia, Thomas and Kennedy in the majority; Breyer, Sotomayor, Kagan, and Ginsburg in the minority) the court ruled that correctional officials could, indeed, conduct strip searches of people in custody even though the reason for their being in custody was a minor crime, such as failure to pay a fine and even though such custody was temporary.
Although the decision was 5-4, the majority was not in total agreement; as a result the decision was limited. First, the strip search can only be visual; correctional officers cannot touch prisoners although they can ask prisoners to move to aid the visual search. More important, Chief Justice Roberts and Justice Alito said that they could join the majority opinion only if it was limited to cases in which the strip search was done as a preliminary step before putting the prisoner into the general prison population. Thus, the majority opinion does not authorize strip searches when a prisoner is to be kept secluded from the general jail population. Justice Thomas, apparently, did not want this limit.
Strip searches are quite intrusive and humiliating. For most people they constitute a traumatic invasion of personal privacy. Because of this a number of lower federal courts had decided that they could not be done routinely to prisoners who presented no risk of violence, contagion or drug possession. The Supreme Court decision in the Florence case now reverses these lower court holdings and makes it possible for jail officials to do strip searches of anyone who is to be put into the general jail population.
Thus, if a student is arrested for drunken and disorderly behavior on Massachusetts Street on a Saturday night and taken to jail, that student may be strip searched by jail personnel. If, like Florence, a woman is taken into custody because of an outstanding warrant, even a warrant issued for failure to pay parking fines, that woman can be strip searched by jail personnel.
While the Supreme Court’s decision in the Florence case permits correctional personnel to conduct routine strip searches even of people who present no risk, it does not require these searches. In practice that means that local communities can adopt policies that would prohibit such an expansion of the use of strip searches.
I would hope that Lawrence and Douglas County authorities will quickly adopt such limitations to assure the local population that they will not be needlessly traumatized and humiliated. Those folks who object to the use of whole body scanners at airports as an invasion of privacy would be well advised to look closely at the Florence decision because its potential negative impact on privacy is far greater.