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Supreme Court Gives Officers Unlimited Strip Search Power
April 2, 2012 8:36 PM   Subscribe

In admitting that they have no expertise in running a corrections system, the U.S. Supreme Court ruled today that officers have unfettered authority to conduct full strip searches of any arrested individual, even for the most minor of offenses and in situations where officers lack any suspicion of contraband. The ruling comes days after the NY Times ran an analysis suggesting that the current supreme court is the most conservative court in modern history.
posted by GnomeChompsky (78 comments total) 7 users marked this as a favorite

 
What's kind of nuts about this is that federal courts have been supervising the operation of prisons and jails for a long time, at a rather fine grained level. Why the Supreme Court now decides that it cannot set limits on correctional activity is a mystery to me.
posted by jayder at 8:38 PM on April 2, 2012 [7 favorites]


At least the Constitution will soon be safe from the horrible depredations of health care reform!
posted by entropicamericana at 8:38 PM on April 2, 2012 [4 favorites]


It was incredibly depressing to hear about this today. "Prisons and jails are dangerous and dirty and inhumane and that being the case, welp, there goes any consideration of your rights!" Sigh.
posted by rtha at 8:40 PM on April 2, 2012 [2 favorites]


5 to 4, baby
4 to 5.
No one here gets
out alive.
posted by joe lisboa at 8:42 PM on April 2, 2012 [8 favorites]


They've got the guns and (thanks to "voter ID" laws and redistricting) they've got the numbers.
posted by joe lisboa at 8:43 PM on April 2, 2012


You know, at this point, just fuck Scalia, seriously.
posted by darkstar at 8:43 PM on April 2, 2012 [7 favorites]


Here's my choice selections of WTF:

According to opinions in the lower courts, people may be strip-searched after arrests for violating a leash law, driving without a license and failing to pay child support. Citing examples from briefs submitted to the Supreme Court, Justice Breyer wrote that people have been subjected to “the humiliation of a visual strip-search” after being arrested for driving with a noisy muffler, failing to use a turn signal and riding a bicycle without an audible bell.


Justice Kennedy responded that “people detained for minor offenses can turn out to be the most devious and dangerous criminals.”

and from NPR:

But on Monday, the Supreme Court disagreed by a 5-4 vote. Writing for the court's conservative wing, Justice Anthony Kennedy noted that jails are "often crowded, unsanitary, and dangerous places,"

posted by entropicamericana at 8:44 PM on April 2, 2012 [5 favorites]


You know, at this point, just fuck Scalia, seriously.

Can we strip-search him first?
posted by joe lisboa at 8:44 PM on April 2, 2012 [3 favorites]


I wonder if there will be a greater number of reports of incoming women being strip-searched.
posted by w00bliette at 8:45 PM on April 2, 2012 [2 favorites]


So does this mean we can all just walk around naked now?
posted by Threeway Handshake at 8:48 PM on April 2, 2012 [1 favorite]


Ask a supreme court justice about the fourth amendment and he'll tell you where to put it.

Presumably, the next step is demanding that we put up TSA agents in our spare rooms, whether we like it or not.
posted by stet at 8:52 PM on April 2, 2012 [3 favorites]


Well, by its very nature, the Supreme Court should be increasingly conservative over time, because theoretically, the Constitution shouldn't be changing, so their decisions should seem more and more conservative compared to current thinking.

There's a process to change the Constitution to reflect new thinking, and it's supposed to happen when the Supreme Court decisions get sufficiently irritating.

The 'living document' doctrine made the Supreme Court into just another political body; their willingness to redefine words to mean whatever they want them to mean, in order to get the outcome they want, is reprehensible.

Changes to the social contract are supposed to happen in state and national government, not the court system. It's supposed to be a big decision, one involving a long argument among a lot of people, resulting in an often-messy compromise. Instead, you only need to convince five of nine people that wildly misinterpreting Constitutional language will serve a political end they support. They'll be more than happy to do so, and can then impose their new social contract by fiat.

It's crap. They're supposed to be referees. The game is supposed to be in Congress, and it's supposed to be controlled by your vote and input into the process.
posted by Malor at 8:53 PM on April 2, 2012 [26 favorites]


And the justices know that getting arrested for a minor infraction is a great way to smuggle contraband into jails because that's what Scalia does every weekend...
posted by oneswellfoop at 8:53 PM on April 2, 2012


Or just reports of women being arrested and ordered to strip, to find out afterwards it had been "by mistake"...
posted by w00bliette at 8:56 PM on April 2, 2012


Are you a jackboot-wearing police-state thug? You probably sit on this supreme court.
posted by TrialByMedia at 8:56 PM on April 2, 2012


Presumably, the next step is demanding that we put up TSA agents in our spare rooms, whether we like it or not.

Technically they aren't soldiers so they won't be violating the third amendment.
posted by Talez at 8:57 PM on April 2, 2012 [11 favorites]


@entropicamericana: I'm not upset those people are being strip searched. I'm upset those people are being put in jail. I think most people are focusing their outrage on the wrong thing here.
posted by sbutler at 8:57 PM on April 2, 2012 [7 favorites]


Or just reports of women being arrested and ordered to strip, to find out afterwards it had been "by mistake"...

I wonder how Kennedy would feel if it was Mary Davis Kennedy that was arrested "by mistake"?
posted by Talez at 8:58 PM on April 2, 2012 [2 favorites]


Prisons aren't dangerous because of ass weapons.
posted by furiousxgeorge at 9:01 PM on April 2, 2012 [2 favorites]


ACTIVIST JUDGES WOO WOO
posted by GuyZero at 9:08 PM on April 2, 2012 [1 favorite]


It's crap. They're supposed to be referees.

Referees are for socialist "sports" like soccer. Even Chief Justice Roberts knows to invoke steroids the all-American sport of baseball to make his, ahem, case re: the role of the federal judiciary as umpirish (now a word!).
posted by joe lisboa at 9:14 PM on April 2, 2012


One more step on the incremental road to fascism.
posted by AElfwine Evenstar at 9:25 PM on April 2, 2012 [3 favorites]


I'm not upset those people are being strip searched. I'm upset those people are being put in jail.

Do we have to choose?
posted by crayz at 9:34 PM on April 2, 2012 [4 favorites]


Oh yay! Just in time for the next seasonal round-ups of protesters. I'm certain, however, the police will use this new power with discretion and not target activists in the hopes of "teaching them a lesson" or imparting any sort of chilling effect on free speech and the right to assemble.
posted by stagewhisper at 9:35 PM on April 2, 2012 [27 favorites]


he ruling comes days after the NY Times ran an analysis suggesting that the current supreme court is the most conservative court in modern history.

Check out the New Yorker profile of John Roberts: No More Mr. Nice Guy
posted by KokuRyu at 9:44 PM on April 2, 2012 [1 favorite]


Either make it easier to amend the constitution, or Supreme court judges need to have a limited term. Make it long; 10-15 years, even. This shit about being a judge for life has and will change the US into a banana republic.
posted by the cydonian at 9:51 PM on April 2, 2012 [5 favorites]


Here's a choice quote from the New Yorker article:

After four years on the Court, however, Roberts’s record is not that of a humble moderate but, rather, that of a doctrinaire conservative. The kind of humility that Roberts favors reflects a view that the Court should almost always defer to the existing power relationships in society. In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff.

posted by KokuRyu at 9:54 PM on April 2, 2012 [1 favorite]


Fair enough. But I won't feel truly safe™ until Supreme Court members are required to undergo strip searches prior to mingling with other government officials.

Improperly securing the safety of our most superior arbiters of law would be “at the risk of increased danger to everyone in the facility, including the [Supreme Court Justices] themselves.”
posted by Johann Georg Faust at 10:05 PM on April 2, 2012 [2 favorites]


Just wait until these guys do what the Republicans hate and overturn legislation passed by Congress. Legislation Republicans also hate.

Wait, fuck, I get confused - is the Supreme Court good or evil? FOX News keeps telling me different things.
posted by GuyZero at 10:22 PM on April 2, 2012


I couldn't believe it when I saw this headline today.
posted by LobsterMitten at 10:30 PM on April 2, 2012


I am aghast at this ruling. Worse still are the small details of this case. Per the article here from March 7th 2011, he had the receipt of payment of the fine on him. He had his 4 year old in the backseat of the car. He was completely innocent, yet spent 8 days locked up in two counties.
posted by Catblack at 10:35 PM on April 2, 2012 [3 favorites]


It's quite the data point.
posted by effugas at 10:42 PM on April 2, 2012


How many indignities must the people suffer before we forego the normal routes and start voting with pitchforks and torches. This is only based on my own observations, but I've noticed an uptick in this kind of talk in online comments and also in my own personal interactions with people in rl. The government must be noticing the same thing, which would explain why homeland security is planning to purchase 450 million rounds of .40 caliber ammunition and 175 million rounds of .223 caliber ammo.
posted by AElfwine Evenstar at 10:44 PM on April 2, 2012 [2 favorites]


Presumably Homeland Security is just responding to the general shortage of ammo that's been going on since regular people started stockpiling it when Obama took office.
posted by GuyZero at 10:49 PM on April 2, 2012


Three years later? And enough ammo to fight a small war?
posted by Malor at 10:54 PM on April 2, 2012


How else to you expect them to pacify southern Arizona?

After all, I hear the coyotes have WMD!
posted by darkstar at 11:03 PM on April 2, 2012


So when do they finally overturn Roe v. Wade?
posted by mrhappy at 11:07 PM on April 2, 2012


The government must be noticing the same thing, which would explain why homeland security is planning to purchase 450 million rounds of .40 caliber ammunition and 175 million rounds of .223 caliber ammo.

Oh dear, you're halfway to Freeperville already. The government is not planning to purchase an abnormally large quantity of ammo, it's just locking in a price for the next 5 years. 450 million round potential just means that the government is willing to buy up to 450m rounds before asking for a better discount. It's just a regular procurement contract. DHS is huge, with 200,000 employees, so any quantities it negotiates are necessarily going to be large. And again, the 450m number is linked to a price ceiling, not a purchase order.
posted by anigbrowl at 11:13 PM on April 2, 2012 [11 favorites]


Rachel Maddow on this ruling, and on the politics of the court more generally in the segment immediately after.
posted by mek at 11:13 PM on April 2, 2012


Oh dear, you're halfway to Freeperville already.

Or moonbatville
posted by AElfwine Evenstar at 11:19 PM on April 2, 2012 [1 favorite]


As I've often said, go far enough out to one fringe and you're just as likely to end up on the other one.
posted by anigbrowl at 11:27 PM on April 2, 2012 [2 favorites]


Neocons are a perfect example of this. I don't know why you are being so aggro, but whatevs. I don't claim to know what is going on I was just commenting on my own personal experience which probably doesn't amount to much in the big picture. Either way regardless of whether one is on a "fringe" in in the soft gooey middle something has to eventually give.
posted by AElfwine Evenstar at 11:33 PM on April 2, 2012 [1 favorite]


*or in
posted by AElfwine Evenstar at 11:34 PM on April 2, 2012


"One more step on the incremental road to fascism."

This is one of those few situations where I can see the connection to fascism, but the thing is, you're essentially making a slippery slope claim instead of an argument in a situation where expanding the government's power to strip search even innocent Americans (where's Ron Paul on this one?), which is bad on its face. You don't need to be concerned about fascism to deplore this — it's deeply offensive to individual and national dignity.
posted by klangklangston at 11:36 PM on April 2, 2012 [7 favorites]


"How many indignities must the people suffer before we forego the normal routes and start voting with pitchforks and torches. This is only based on my own observations, but I've noticed an uptick in this kind of talk in online comments and also in my own personal interactions with people in rl."

Yeah, sorry, that's empty bluster. There is literally zero chance of a popular revolt over any of this, or a popular revolt being effective. There are so many other ways to effect real change without risking your life, but risking your life is way more dramatic and obviously fantasy that putting it forward excuses people from the hard work of real political activism.
posted by klangklangston at 11:41 PM on April 2, 2012 [1 favorite]


There is literally zero chance of a popular revolt over any of this, or a popular revolt being effective.

That's a nice opinion but it seems to be pretty blustery itself. I'm not advocating or saying it can or will happen. I was just commenting that in my online and irl exchanges I've noticed more and more grumbling of this sort(pitchforks and torches).

This ruling is just one in what seems like a sustained assault on Americans liberties. The NDAA is another recent example:

“Government lawyers in New York court tell Judge they can’t directly rule out detaining Chris Hedges for reporting, Occupy London for protesting, or the author of a hypothetical book on politics for expressing an opinion, under NDAA sections 1021 and 1022.”

Now there are people who are doing the "real political activism" you advocate, but what happens when all reasonable peaceful routes of action prove unfruitful? When is violence ok? I'm not asking rhetorically because this is something that I haven't answered for myself. At what point does violent revolution become an option?
posted by AElfwine Evenstar at 11:52 PM on April 2, 2012 [2 favorites]


Thursday works for me.
posted by fleacircus at 11:54 PM on April 2, 2012 [5 favorites]


As a redditor, this would probably be where I break out the sarcastic Wonka meme and say "Do tell me about your 'Land Of The Free' again".
posted by Decani at 12:21 AM on April 3, 2012


"That's a nice opinion but it seems to be pretty blustery itself. I'm not advocating or saying it can or will happen. I was just commenting that in my online and irl exchanges I've noticed more and more grumbling of this sort(pitchforks and torches)."

Yeah, and I'm saying that grumbling is entirely empty, and may actually detract from practical things that can make our lives better.

"Now there are people who are doing the "real political activism" you advocate, but what happens when all reasonable peaceful routes of action prove unfruitful? When is violence ok? I'm not asking rhetorically because this is something that I haven't answered for myself. At what point does violent revolution become an option?"

Have we pursued all of the reasonable peaceful routes? I'm not a pacifist, just fairly realistic about what political violence needs to be effective, especially violent revolution. Violent populist revolutions are even more difficult than military coups, and even then you're not assured a good outcome.
posted by klangklangston at 12:22 AM on April 3, 2012 [3 favorites]


Justice Kennedy responded that “people detained for minor offenses can turn out to be the most devious and dangerous criminals.”
Not only that, but people who havn't been arrested can turn out to be the most dangerious criminals of all.

In fact, think about it: how much violent crime has been committed by people who were already in police custody? almost none! Clearly, what we need for the police to have the right to strip-search anyone at any time.

I mean look at this a cop was arrested in Utah for performing a strip search on a 17 year old during a traffic stop That poor cop! Obviously that's a state law issue, only those puritanical Mormons would be so prudish to prevent cops from strip-searching teenagers for speeding! Thankfully, with SCOTUS legalizing this kind of thing at a federal level, surely Utah will modernize its laws and make things safe for cops who are trying to stay safe from dangerous teenage girls.
Well, by its very nature, the Supreme Court should be increasingly conservative over time, because theoretically, the Constitution shouldn't be changing, so their decisions should seem more and more conservative compared to current thinking.
Well, the problem is we're just using "conservative" and "liberal" to mean "capitalistic/authoritarian" and "socialistic/libertarian". In this case it was a move towards authoritarianism.

Really this has nothing to do with "conservative" or "liberal", they are just arbitrary labels.
posted by delmoi at 12:29 AM on April 3, 2012 [8 favorites]


Have we pursued all of the reasonable peaceful routes?

I would hope not.
posted by AElfwine Evenstar at 12:29 AM on April 3, 2012 [2 favorites]


You can round up all the pitchforks you want. They have bulletproof vests, helicopters, and machine guns.

I'm getting happier every day not to live in the states. I just hope the disease your country has doesn't spread north.

Oh wait... Harper... yup, we're fucked too.
posted by windykites at 12:36 AM on April 3, 2012


We have far too much bread and far too many circuses to even contemplate a real revolution.
posted by Drumhellz at 12:54 AM on April 3, 2012 [5 favorites]


Ya, Harper.. We still have a little bit of sanity up here though: R. v. Golden.
posted by Chuckles at 1:24 AM on April 3, 2012


Backstory, people. It's all about the backstory.

Peak oil will cause a violent, strategic dislocation inside the United States, provoked by loss of functioning political and legal order and unforeseen economic collapse, for which the US must now prepare a domestic military capability. -- US Army Strategic Studies Institute, 2008
posted by falcon at 1:25 AM on April 3, 2012 [2 favorites]


[A couple of comments deleted; violent suggestions/fantasies not cool here.]
posted by taz at 4:30 AM on April 3, 2012


Scalia just really wanted to see my cock. He's been sexting me about it for weeks! The TSA bodyscanners weren't enough, he said he had to see a police officer fondling me or he couldn't get off. I'd be surprised if this applied to anyone else, I mean, Scalia wouldn't cheat on me would he?!?!? [frets]
posted by fuq at 4:59 AM on April 3, 2012


Come on folks, you're all overreacting. You don't need to worry about this at all if you're rich enough to never be arrested, no matter what you do.
posted by Legomancer at 5:26 AM on April 3, 2012 [2 favorites]


This makes me want to move to DC, spend however many years it takes to become a cop, and then follow every one of the five affirmative voters around every day so that I can pull them over and strip-search them on a daily basis. It's not like they have to have actually committed a crime for it to be legal, after all...
posted by showbiz_liz at 5:27 AM on April 3, 2012 [3 favorites]


Is there a medical term for when your penis and testicles move up into your stomach out of sheer terror?Because that's just about what fuq's comment re: Scalia trolling for cockshots did for me. The only way I can sleep knowing he's alive is that, at least, he's not a gay creepy asshole fascist. (sorry, ladies)
posted by MCMikeNamara at 5:33 AM on April 3, 2012


showbiz_liz, can I offer you funding to help with that plan?
posted by eviemath at 5:38 AM on April 3, 2012


Among the long list of things the bozos in the Court are clueless about, add patent law.
posted by exogenous at 6:05 AM on April 3, 2012


Presumably, the next step is demanding that we put up TSA agents in our spare rooms, whether we like it or not.

A reason to not have 'em in your house:
Two Transportation Security Administration officers are accused of trashing a South Beach hotel room and repeatedly shooting off a gun.
posted by rough ashlar at 6:20 AM on April 3, 2012


insane ruling. conservatives have their back to the wall and they are fighting tooth and nail.
posted by Ironmouth at 7:47 AM on April 3, 2012


What happens when all reasonable peaceful routes of action prove unfruitful? When is violence ok? I'm not asking rhetorically because this is something that I haven't answered for myself.

"...when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security."
posted by entropicamericana at 8:46 AM on April 3, 2012 [1 favorite]


We'll see a violent revolution when those who benefit from the current system run out of ways to buy off or placate those who do not benefit.

One of the last things they'll try, though, is staging an apparent revolution that doesn't change the things most essentially wrong with our system (that is, most essential for some benefiting unjustly at the expense of others), despite making sweeping changes.

So let's not fall for that one like we did before ... in the U.S., France, Russia, Germany, Spain, China, etc etc...
posted by edguardo at 9:00 AM on April 3, 2012


Yeah, and I'm saying that grumbling is entirely empty, and may actually detract from practical things that can make our lives better.

This is true, but the people I'm talking about(at least irl) are not the kind of people who have the free time for political activism. Most of them are trying to keep their heads above water living paycheck to paycheck.

And as far as the fascism thing is concerned look at the NDAA. Now there have been several discussions about it here on the blue and every time we have some people who poo poo the people who are worried about this legislation saying it doesn't authorize the military to lock up us citizens. Well as I pointed out above we now have the president's lawyers on record saying they can't rule out detaining reporters for "reporting, Occupy London for protesting, or the author of a hypothetical book on politics for expressing an opinion, under NDAA sections 1021 and 1022.” This should be a wake up call for anyone interested in preserving the rule of law and the basic tenets of our democracy. This latest ruling is really just icing on the cake. At this point anyone who denies the obvious truth that this bill(NDAA) codifies detention powers already assumed by previous legislation is living in a fantasy world. So the president has issued a signing statement saying he will not apply the NDAA to American citizens, but we have his lawyers saying it can't be ruled out. So WTF? Something is rotten in the District of Columbia.

conservatives have their back to the wall and they are fighting tooth and nail.

It's not just the conservatives who have gone on an authoritarian binge. President Obama and the democratic controlled senate passed the NDAA 2012.
posted by AElfwine Evenstar at 9:03 AM on April 3, 2012


Today's blog post from Richard Seymour isn't about the SCOTUS ruling, but it might as well be:
We know that rank and file police officers routinely deploy violence not simply to resolve a bureaucratic impasse (non-cooperation, etc) but often to effect a symbolic reduction of the victim to a status befitting that assigned them in the dominant ideology. This is part of the police's role in the moral regulation of society. In carrying out this role, they exercise a relative autonomy, sufficient to define the situations in which they, as professional law enforcers, must harrass, restrain, beat and detain civilians. And it isn't just their training, as some suggest, that inclines them to do this, to treat civilian populations as an enemy. It is their actual experience of routine conflict in carrying out their mandate, which forms their habitus, that system of skills, dispositions and practices which constitutes the occupational culture of the police. At any rate, this defining role allows them to formulate the information which is then fed back to superiors, the courts and prosecutors, media, politicians, law lords and the solicitor general, and which thus constructs social situations in the language of criminality, abnormality, crisis, etc. As trained professionals, moreover, their word carries far more weight than that of any of their victims.

But there is more to it than that.... The police chiefs will always try to rationalise the job, to achieve greater compliance form juniors, and to impose ideas and behaviours consistent with overarching policies. And the state is, as I say, a centralised unity - the executive, or whatever apparatus is dominant at any given moment, can if it wills constrain the behaviour of rank and file officers in various ways. It always does so, in fact. But the limiting factor is that the state desires this relationship of relative autonomy. It wants officers who are sufficiently empowered to act in ways that they see fit in order to effectively reproduce the social order. The result is that there will be antagonisms - officers, for example, can resent having to suppress and contain the social turmoil produced by central state policies - but police chiefs and state executives will tend to protect the autonomy and authority of officers in conducting their role....

And this structural relationship is crucial to explaining how and why the police continually 'get away with it', how and why change is so difficult to achieve. Struggle can force the state to adapt its policy, to re-organise its modes of violence, and to lean more heavily on mediating forms (unions, social democracy, 'civil society' groups, and so on) to cope with social antagonisms. But the sheer persistence of institutional brutality and racism in the police over a long period of time (actually, for as long as the police have existed) suggests that deaths in custody, severe beatings, the violent punishment of the mentally ill, the immigrant, the homeless, the poor and the vulnerable, are not supererogatory explosions of individual un-professionalism; rather they are part of what the police do, part of the professional vocation, the repertoire that makes policing what it is.
posted by twirlip at 9:11 AM on April 3, 2012 [9 favorites]


Today's blog post from Richard Seymour isn't about the SCOTUS ruling, but it might as well be:

Thanks for the link twirlip

TLDR:

"Let me let you in on a little secret, The patrolling officer on his beat is the one true dictatorship in America, we can lock a guy up on the humble, lock him up for real, or say fuck it and drink ourselves to death under the expressway and our side partners will cover us, No one - I mean no one - tells us how to waste our shift!" -Jimmy McNulty
posted by AElfwine Evenstar at 9:22 AM on April 3, 2012 [1 favorite]




Supreme Court Gives Officers Unlimited Strip Search Power

the U.S. Supreme Court ruled today that officers have unfettered authority to conduct full strip searches of any arrested individual

Unlimited? Unfettered authority? Did you even read the opinions or the article you linked to?

That is not what the Court said.

As is too often in the case in discussing Supreme Court opinions, this thread demonstrates practically no substantive comments informed by the actual opinions of the Court and largely consists of nothing but hand-wringing hyperbolic claims, partisan sniping, ad hominem insults, and off-topic discussions of revolution and politics.

The opinions themselves are not even linked in the body of the post.

The concurrence of Alito, which may be the controlling opinion in the case (or Roberts' concurrence), begins at the outset stressing the limited nature of this ruling:
I join the opinion of the Court but emphasize the limits of today’s holding. The Court holds that jail administrators may require all arrestees who are committed to the general population of a jail to undergo visual strip searches not involving physical contact by corrections officers.
And when you read the opinions, you see that everyone stresses that the searches are constitutionally suspect, but the question is whether they meet the "reasonable" standard when balanced against the policy concerns of the state. No one is here saying that there is no problem or concern with strip searches.

Both Alito and Roberts both stress that their votes are predicated on a further limitation of what is the more difficult and important question; Alito notes:
The Court does not address whether it is always reasonable, without regard to the offense or the reason for detention, to strip search an arrestee before the arrestee’s detention has been reviewed by a judicial officer. The lead opinion explicitly reserves judgment on that question. See ante, at 18–19. In light of that limitation, I join the opinion of the Court in full.
And when you read the dissent, the dissenters and the majority are in agreement with the basic principles: that the search is an invasion of privacy and the operative question is whether the search is reasonably related to penological interest. Per Breyer the reasoning for the dissent is that there is not sufficient evidence showing how the strip searches are necessary to protect that penological interest:
Nonetheless, the “particular” invasion of interests, Bell, 441 U. S., at 559, must be “‘reasonably related’” to the justifying “penological interest” and the need must not be “‘exaggerated.’” Turner, supra, at 87. It is at this point that I must part company with the majority.
In short, both agree that the searches are invasions of privacy, and both agree that there is a sufficient penological interest at stake (that is, the safety and order of the general population). The disagreement is only whether there is sufficient evidence that the search is necessary to protect safety.

The point here is that the dividing line between the dissent and the majority is not a constitutionally principled one. This is not a question of whether a strip search is per se unconstitutional. Breyer concedes that it is constitutionally permissible. The question in this case is whether the evidence is sufficient to show that it is reasonable in this instance. And when you look, it all really comes down to the degree to which the majority was willing to give deference to the administrators about the importance of this while Breyer and the dissenters wanted more objective evidence of the need.

And like Alito, the dissent acknowledges that the more important question is left for another day:
In an appropriate case, therefore, it remains open for the Court to consider whether it would be reasonable to admit an arrestee for a minor offense to the general jail population, and to subject her to the “humiliation of a strip search,” prior to any review by a judicial officer.
There are interesting things to discuss in this opinion, but it is imperative to know what was actually being decided and what the hinge points are that separate the majority and the dissent.
posted by dios at 12:11 PM on April 3, 2012 [7 favorites]


I don't see why they couldn't decide "no, it's unreasonable to subject arrestees to strip search when there's no reason to think they might be concealing a weapon, therefore municipalities must maintain a detention facility where people who haven't been strip searched can be held."
posted by LobsterMitten at 12:32 PM on April 3, 2012 [1 favorite]


Malor,

This simplistic thinking is the heart of conservative bullshit. It shows a complete lack of understanding of what the courts do in a common law system, and specifically what the Supreme Court does. Whenever you hear someone screeching about "activist judges" or demanding that they "follow the Constitution", you know they are full of shit.

The flaw comes in your first sentence:

Well, by its very nature, the Supreme Court should be increasingly conservative over time, because theoretically, the Constitution shouldn't be changing, so their decisions should seem more and more conservative compared to current thinking.

Wrong. The Constitution is not some explicit instruction manual, where all you have to do to answer a question is look up the right rule. It's a vague framework. It's exactly the issues that aren't defined in the document itself that come to the Court. No one argues over how many Presidents we should have. We argue about, say, the limits of the Commerce clause, about the proper power of police, about whether the Bill of Rights apply to the states, etc.

"By its very nature", the Court is a body that interprets the unsettled framework. The idea that there is some true, eternal, objective way to interpret it that never changes is itself the political decision you rail against. The people who make that claim make it because such interpretation serves their interest.

You let slip the truth here:

Instead, you only need to convince five of nine people that wildly misinterpreting Constitutional language will serve a political end they support.

"Wildly misinterpreting"? Are you a deity who magically knows what the "real" interpretation of the Commerce Clause should be, applicable in all cases and unchanging? Why, you should fly to Washington right now and get a job on the Court!

People like Malor make this claim that obviously the Court is missing the true interpretation, because of course the "true" interpretation is what they feel it should be. Anything else is politicized nonsense!

The Constitution is a "living document" because the act of interpreting it, which is what the Court does, is an evolving process.

It's pretending otherwise that's the political act.
posted by Sangermaine at 12:37 PM on April 3, 2012 [2 favorites]


LobsterMitten: I know little about the intricacies of where to house prison populations, but your proposal seems like one that might be relevant to the unanswered "open question" identified by the opinions. That is, assuming ad arguendo that the strip searching of an arrestee is necessary to advance penological safety issues, the open question is under what circumstances should an arrestee be subjected to that process. So if you have a person arrested for a minor offense, should that person be submitted to the general population in prison before a meeting before a judicial officer? One could envision a scenario in which strip searches exist for those entering the general population, but someone arrested for a minor offense does not go through that process until a judicial officer finds some basis for sending them to such a prison, and in the meantime, those individuals are held in private cells at some other secure facility. I have no idea of whether that is practical, but it is the type of analysis that the Court might find persuasive on that question.
posted by dios at 12:55 PM on April 3, 2012


I don't see why they couldn't decide "no, it's unreasonable to subject arrestees to strip search when there's no reason to think they might be concealing a weapon, therefore municipalities must maintain a detention facility where people who haven't been strip searched can be held."

Ah, but that wasn't the question they were asked to decide. Florence and his attorney fought the case on the basis of 'why was I searched for this' rather than 'why was I cast into the wretched hive of scum and villainy that is general population?'. The judiciary tends to lose power whenever it legislates from the bench by mandating broad new frameworks, unless it's in some area that Congress/legislatures are afraid to or can't be bothered to legislate in; unfortunately criminal justice is an area where legislators love meddling because being 'tough on crime' is an easy vote-getter. Thus, judges tend to restrict themselves to an arbitration function, and leave the propositions up to the advocates.

There's a whole other question of why our system has drifted towards seeking legalistic solutions rather than equitable ones or favoring specific performance, but I'm not up to answering that one yet.

Do not get the idea that I support this result. I don't, it stinks.
posted by anigbrowl at 2:12 PM on April 3, 2012 [1 favorite]


In short, both agree that the searches are invasions of privacy, and both agree that there is a sufficient penological interest at stake (that is, the safety and order of the general population). The disagreement is only whether there is sufficient evidence that the search is necessary to protect safety.

What a lot of words you wrote. Their disagreement is indeed trivial, concerning only the question of whether or not police can routinely strip search detainees because "hey, you never know."

Let's review the evidence that that detainees with no specific reason to warrant suspicion are indeed still a safety concern:
One recent study of 75,000 new inmates over a five years period found 16 instances where a full body search revealed contraband. (As Breyer explains, “The record further showed that 13 of these 16 pieces of contraband would have been detected in a patdown or a search of shoes and outer-clothing. In the three instances in which contraband was found on the detainee’s body or in a body cavity, there was a drug or felony history that would have justified a strip search on individualized reasonable suspicion,”.
I am indeed also tired of hearing the shrill cries of "police state" from hysterical MeFites, so I'd like to close with some far more reasoned words, from the law professor and Chair of the Political Science Department at the University of Chicago:
The police-state logic ferrets out these potential risks and then turns over to the police state full power to radically eradicate the danger—no matter how small. It is a logic that is diametrically opposed to what has dominated constitutional analysis to date, namely a “political-state logic” that balances security risks against privacy interests, liberty, and other political values, in this case especially political anti-discrimination values. The disproportionate arrest of African-Americans in the United States is extremely alarming in light of today’s decision (as the very facts of this case demonstrate).

...

[it's] the kind of logic that can turn a democracy into a police state
posted by crayz at 2:15 PM on April 3, 2012 [1 favorite]


that wasn't the question they were asked to decide. Florence and his attorney fought the case on the basis of 'why was I searched for this' rather than 'why was I cast into the wretched hive of scum and villainy that is general population?'.

I get that, and thank you for the clarification from someone who's actually following the details of this. But I'm still wondering - I guess maybe as a general point about how the Court functions? - why the justices didn't say what I would say if someone advanced this argument in Philosophy 101.

student: We had to strip search him because he was going to be put into the general jail population.
teacher: Why was he going to be put into the general jail population?

If it's an unreasonable search, it doesn't become reasonable by virtue of a logistic situation the government has created itself.
posted by LobsterMitten at 4:46 PM on April 3, 2012 [1 favorite]


Glenn Greenwald: The Obama DOJ and strip searches

What virtually none of this anti-Florence commentary mentioned, though, was that the Obama DOJ formally urged the Court to reach the conclusion it reached.
[...]
What makes the Obama DOJ’s position in favor of this broad strip-search authority particularly remarkable is that federal prisons do not even have this policy. As The New York Times‘ Adam Liptak explained, “the procedures endorsed by the majority are forbidden by statute in at least 10 states and are at odds with the policies of federal authorities. According to a supporting brief filed by the American Bar Association, international human rights treaties also ban the procedures.”
posted by mek at 2:11 AM on April 4, 2012 [1 favorite]


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