In a close 5-4 decision, the U.S. Supreme Court ruled that people who are arrested, even for minor offenses, may be strip searched before they are admitted to jail, even if there is no reasonable suspicion they are in possession of drugs, weapons or other contraband. And the case is expected to have implications for black men who are disproportionately stopped by the police.
The case, Florence v. Board of Chosen Freeholders, involved Albert Florence — a black man and a car dealership finance director — who was arrested by a New Jersey state trooper for a warrant on an unpaid fine. Florence had actually paid the fine.
Over the course of two days, Florence was taken to two jails. In the first jail he was ordered to strip in a shower with a delousing agent, open his mouth and lift his tongue, and lift his genitals. He was subjected to a similarly invasive strip search in the second facility, in the presence of other inmates.
Other plaintiffs in the case were arrested for minor offenses such as walking a dog without a leash, or trespassing during an antiwar demonstration, and were strip searched.
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Writing for the high court’s conservative majority, Justice Anthony Kennedy said that more than 13 million people are admitted to jails each year, and larger facilities process hundreds of detainees each day. Given the difficulties of operating a detention center — courts must give leeway to jail officials.
“Maintaining safety and order at these institutions requires the expertise of correctional officials, who must have substantial discretion to devise reasonable solutions to the problems they face,” Kennedy wrote in his opinion, while emphasizing that jails are dangerous, crowded and unsanitary places. “The Court has confirmed the importance of deference to correctional officials and explained that a regulation impinging on an inmate’s constitutional rights must be upheld ‘if it is reasonably related to legitimate penological interests.’”
“People detained for minor offenses can turn out to be the most devious and dangerous criminals,” said Kennedy, citing the case of Oklahoma City bomber Timothy McVeigh, who was stopped by a state trooper for driving without a license plate. Further, one of the 9-11 hijackers was “stopped and ticketed for speeding just two days before hijacking Flight 93,” as the justice recalled.
“Experience shows that people arrested for minor offenses have tried to smuggle prohibited items into jail, sometimes by using their rectal cavities or genitals for the concealment. They may have some of the same incentives as a serious criminal to hide contraband,” Kennedy said. “A detainee might risk carrying cash, cigarettes, or a penknife to survive in jail. Others may make a quick decision to hide unlawful substances to avoid getting in more trouble at the time of their arrest,” he added.
Writing for the dissenting opinion on behalf of the liberal justices, Justice Stephen Breyer said there was little evidence that the strip searches lead to the discovery of contraband that less invasive procedures could not detect. Breyer called the procedures “inherently harmful, humiliating, and degrading” and concluded that “the harm to privacy interests would seem particularly acute where the person searched may well have no expectation of being subject to such a search, say, because she had simply received a traffic ticket for failing to buckle a seatbelt, because he had not previously paid a civil fine, or because she had been arrested for a minor trespass.”
In a concurring opinion, Chief Justice John G. Roberts said that there were exceptions to this ruling “to ensure that we ‘not embarrass the future.’” Arguing that “Most of those arrested for minor offenses are not dangerous, and most are released from custody prior to or at the time of their initial appearance before a magistrate,” Justice Samuel A. Alito Jr. believes that “admission to the general jail population, with the concomitant humiliation of a strip-search, may not be reasonable” for people accused of committing minor offenses.
The ruling was viewed as a victory for the Obama administration, who wanted the Court to reach this decision, and for jail officials. Meanwhile, civil liberties groups are concerned the strip searches violate privacy rights. Breyer noted that at least 10 states, including California, Florida, and Illinois, and several federal agencies forbid the procedures in question. And, according to the American Bar Association, international human rights treaties ban the strip searches.
Florence did not allege racial discrimination in this case. However, the prevalence of racial profiling, despite its prohibition by federal law, suggests that innocent black men are particularly susceptible to disproportionate arrests and strip searches. Racial profiling is the targeting of African-Americans, Latinos and others by law enforcement because of their racial or ethnic background, rather than individual behavior or information that a suspect has engaged in criminal activity.
“Driving while black” is well documented, and the recent shooting death of 17-year-old Trayvon Martin by a neighborhood watch volunteer in Florida has forced Americans to reexamine the racial profiling of young black men.
New York provides a glaring example of racial profiling and questionable stop-and-frisk activity. According to the New York Civil Liberties Union, the police are stopping hundreds of thousands of law abiding New Yorkers, the vast majority of them blacks and Latinos. In 2011, based on NYPD statistics, 685,724 people were stopped by the police. 88 percent were completely innocent, 53 percent were black, 34 percent were Latino, and only 9 percent were white. 51 percent were age 14-24.
The Center for Constitutional Rights filed a federal class action lawsuit against New York’s finest (Floyd, et al. v. City of New York, et al), challenging the department’s practice of unconstitutional stop-and-frisks, overwhelmingly in communities of color. A CCR report found that race is the primary factor determining who the NYPD stops. Black and Latino suspects are more likely to be stopped by police than whites, even in low crime, predominantly white and mixed communities. Further, blacks and Latinos are also more likely to be arrested than receive a summons than whites for the same crime, and police are more likely to use force against them.
Moreover, 30 percent of all stops in New York over six years were found to be unconstitutional, and the rate of gun seizures was a mere 0.15 out of every 100 stops.
In addition, a new study by the Bronx Defenders found that NYPD cops in the Bronx made hundreds of illegal stops and searches and unlawful arrests for marijuana possession and other trumped-up charges. The vast majority of those arrested are black and Latino men, especially youth of color. Suspects arrested for weed possession often are jailed for 24 hours, and those who are arrested for small amounts typically have no prior criminal record. Yet, a pot arrest can bring with it a criminal record, loss of employment, financial aid and parental custody, and other negative consequences.
The Southern Poverty Law Center found that 73 percent of the vehicles seized and impounded from roadblocks in Albertville, Alabama belonged to drivers with Latino surnames. Latinos are only 16 percent of that city’s population. In February, the FBI arrested three East Haven, Connecticut police officers for alleged misconduct against Latino suspects, including bogus arrests and traffic stops, unreasonable searches and seizures, excessive force and covering up their actions.
A lawsuit filed by Mary Catherine Roper of the ACLU of Pennsylvania and attorneys David Rudovsky and Seth Kreimer against the Philadelphia police department alleges that the city has a history of racial profiling. Of the 253,691 stops in 2009, over 183,000 (72 percent) involved black suspects. Only 8.4 percent of all stops resulted in arrests. Under a settlement agreement reached last year, the Philadelphia police will collect and store data on all stops and frisks, and provide supervision and training related to stop and frisk practices. Monitors will review and analyze the stop and frisk data.
According to a 2008 report from the ACLU of Southern California, the LAPD stops, searches, frisks and arrests blacks and Latinos far more frequently than whites. The report concluded that “these disparities aren’t explained by differing crime rates in predominantly black or Latino neighborhoods or the likelihood that a search of a person of color will yield evidence of crime.”
Blacks in Los Angeles are three times more likely to be stopped by police without justification. Over six years, the LAPD received 1,200 racial profiling complaints from the public.
Last September, Shoshana Hebshi-Holt — a half-Arab, half-Jewish mother of two from Ohio — was allegedly profiled for her appearance, after her flight from Denver landed in Detroit. She and two men of Indian descent who sat near her on the plane were cuffed and arrested, body searched, detained and interrogated for several hours over suspicions they looked like terrorists.
“I feel violated, humiliated, and sure that I was taken from the plane simply because of my appearance,” Hebshi said in a blog post.
Further, celebrities are not immune from the humiliation of racial profiling. Last month Tyler Perry, named the highest paid entertainer in Forbes magazine, said he was stopped and “badgered” by two white Atlanta police officers. Tensions were diffused when a black officer arrived on the scene and informed his colleagues that Perry is a celebrity.
In light of the recent Supreme Court decision, and given that the vast majority of the millions of arrests each year are for minor infractions such as traffic violations — many of whom are improperly arrested or have their charges dropped — the issue of strip searches and racial profiling will continue to significantly impact black men such as Albert Florence.
Follow David A. Love on Twitter at @davidalove