While the media and public were briefly focused on the Supreme Court’s consideration of the constitutionality of the Affordable Care Act, the court made a rather troubling ruling on a case involving Albert Florence.F
Florence, a finance director for a care dealership, was stopped on the way to a family event. He was then arrested when the trooper determined that there was a warrant for his arrest. While the warrant was in error (he had paid the fine in question) and he had a document to that effect, he was still jailed. While in jail he was strip searched. Six days later he was transferred and strip searched once again. Florence took issue with this treatment and his case made it to the supreme court.
By a predictable 5-4 vote, the Court ruled that anyone who is arrested (even for minor offenses, such as traffic violations) can be stripped searched. The ruling allows this even when there is no reasonable suspicion the person is concealing anything that would require a strip search to locate.
In the majority opinion Justice Kennedy noted that it would be “unworkable” to require jail officials to strip search only in cases in which they had reasonable grounds to suspect that a strip search would be needed. As might be imagined, this seems like an absurd thing to say. After all, it seems to be saying that it would not work to limit strip searches to cases in which a strip search would be reasonably justified. I certainly hope that this same logic is not extended to arrests. After all, the police are currently limited to arresting people when they have reasonable cause to suspect that a person needs to be arrested. I do hope that this is not also “unworkable.”
Kennedy did attempt to back up his point with an example, specifically that of the infamous Timothy McVeigh. McVeigh had been arrested for driving without a license plate which caused Kennedy to note that “people detained for minor offenses can turn out to be the most devious and dangerous criminals.”
One rather obvious response to this is that his example is irrelevant to the matter of strip searching. After all, nothing about the McVeigh case involved finding something dangerous or important by strip searching him. Now, if McVeigh had been arrested on a traffic stop and the police had found a bomb taped to his genitals and had thus prevented the horrific bombing, then Kennedy’s example would have had at least some relevance. It would, of course, still be just one example and thus an incredibly weak argument by example.
It might be countered that Kennedy did not mean for this to be an example directly showing the importance of strip searching people but rather as evidence that very bad people can be arrested for minor offenses. Presumably his reasoning is that such people would be more likely to hide things in places that only a strip search would reveal. Of course, this logic would also seem to apply to having the police check anyone, such as folks who eat fast food. After all, “people who eat at McDonald’s can turn out to be the most devious and dangerous criminals.”
It might be replied that people who are arrested for minor offenses have been arrested and hence are legitimately subject to searches in ways that people who are just out and about are not subject to arrest. This can, of course, be countered by the reply that it seems to be unwarranted to treat all prisoners the same, regardless of the offense and other factors. After all, if the police can distinguish between who should and should not be arrested, they should be able to distinguish between who needs to be strip searched and who does not.
This can be countered by arguing that the strip searching is done for the safety of the prisoners and the guards. After all, if everyone is strip searched, then the chances of dangerous items getting into prisons is somewhat lower. However, there is the fact that the overwhelming majority of people who are arrested for minor offenses are not concealing anything and to strip search people on the minute chance that they have something would be overreacting. To use an analogy, putting all prisoners in straight jackets and masks would provide greater protection, but that seems needlessly excessive for the vast majority of prisoners. There is also the rather important fact that people are not supposed to be subject to cruel and unusual punishment.
While searching prisoners is a legitimate practice, strip searching certainly seems to go beyond what is needed in the case of minor offenses. After all, even Alito notes that strip searches are humiliating. As such, to subject a minor offender to such unnecessary humiliation would be to punish them in cruel and unusual ways-even before they are found guilty.
Naturally, the ruling does not require that everyone who is arrested be strip searched-it just allows it to occur. Alito even noted that for most people arrested for minor offenses, “admission to the general jail population, with the concomitant humiliation of a strip-search, may not be reasonable.” As such, jails could elect to house those arrested for minor offenses apart from the general jail population and not strip search them. However, the fact that this could be done does not mean it will be done and there is the rather obvious concern that this ruling will be exploited to allow the humiliation of people who are arrested on minor offenses. This would add nothing to public safety and would merely serve to impose on liberty, privacy and dignity.
Given that the court accepted that the police have a right to strip search even without probable cause, it would seem sensible to think that they will rule in favor of the Affordable Care Act. After all, if the state has the right to strip you naked and check out your junk when you are arrested for anything at all, then surely the state has the power to require you to buy health care insurance. In fact, given that an increased number of Americans will be exposed to the chilliness and psychological stress of being strip searched, they will need health insurance more than ever.