{"id":4665,"date":"2012-04-09T12:58:43","date_gmt":"2012-04-09T16:58:43","guid":{"rendered":"http:\/\/journals.law.harvard.edu\/crcl\/?p=4665"},"modified":"2016-11-16T19:59:08","modified_gmt":"2016-11-17T00:59:08","slug":"the-naked-truth-what-florence-means-for-future-detainees","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/crcl\/the-naked-truth-what-florence-means-for-future-detainees\/","title":{"rendered":"The Naked Truth: What Florence Means for Future Detainees"},"content":{"rendered":"<p>Last week, the Supreme Court finally handed down a decision in <span style=\"text-decoration: underline;\"><a href=\"http:\/\/www.supremecourt.gov\/opinions\/11pdf\/10-945.pdf\" target=\"_blank\">Florence v. Board of Chosen Freeholders of the County of Burlington<\/a><\/span>. \u00a0In a 5-4 decision along predictably ideological lines, the Court declared that law enforcement officials have the discretion to conduct suspicionless strip searches of detainees regardless of how minor their offense. \u00a0The petitioner in the case, Albert Florence, was arrested during a 2005 traffic stop in New Jersey after a trooper matched his name with a bench warrant for his arrest. \u00a0Although Florence had paid off the fine\u2014associated with a prior incident\u2014the New Jersey database still showed it as unpaid.\u00a0 Thus, the warrant was kept open. \u00a0\u00a0Florence was transported to the Burlington County Detention Center, where he was ordered to strip naked; prison officials then inspected his body for tattoos and contraband, and he had to \u201copen his mouth, lift his tongue, hold out his arms, turn around, and lift his genitals.\u201d\u00a0 As if this episode wasn\u2019t humiliating enough, Florence was jailed for six days and then transferred to the Essex County Correctional Facility, where he was yet again stripped naked and inspected.<\/p>\n<p>Florence was released after the state discovered its mistake.\u00a0 He promptly sued under violations of the 4<sup>th<\/sup> and 14<sup>th<\/sup> Amendments.\u00a0 The District Court granted Florence summary judgment, banning such strip searches of minor offenders as overly invasive.\u00a0 This decision was reversed by the 3<sup>rd<\/sup> circuit, and the case eventually made its way to Washington. \u00a0Six months after the Supreme Court listened to oral arguments, the conservative majority prevailed in an opinion by Justice Kennedy upholding suspicionless searches as Constitutional. \u00a0Chief Justice Roberts and Justice Alito, while joining the majority in full, each filed concurrences.\u00a0 Justice Breyer led the dissenters.<\/p>\n<p>Kennedy gave three reasons for justifying suspicionless searches of minor offenders: 1) detecting contagious diseases such as lice, 2) detecting tattoos indicative of gang membership, and 3) detecting drugs and weapons.\u00a0 Kennedy argued that the prison officials had found \u201ca reasonable balance between inmate privacy and the needs of the institutions.\u201d \u00a0The idea is that police don\u2019t know the character of the people they arrest; while some are harmless, some may in fact be quite dangerous to other prisoners. \u00a0On the other hand, it mattered to the Court that Florence was kept among the general prison population.\u00a0 Kennedy was explicit that the decision did not cover the Constitutionality of suspicionless searches of detainees who could be kept apart from other prisoners.\u00a0 The Roberts and Alito concurrences stressed this point. \u00a0The irony, of course, is that Florence was wrongly arrested in the first place\u2014the outdated bench warrant for his arrest should never have remained open in the database. \u00a0This set of facts even led Florence to question whether he was targeted because he was black. \u00a0But the Court wasn\u2019t focused on the mistaken arrest; it was only concerned with security procedures after the fact.<\/p>\n<p>This was a narrowly divided issue, and not just in terms of the 5-4 vote. \u00a0The Court took an unusually long time to produce this decision.\u00a0 Further, Roberts and Alito filed concurrences to underscore their hesitations with the ruling, stressing that the discretion afforded to law enforcement officials is not sweeping and does not cover situations where prisoners can be kept apart from the general prison population.<\/p>\n<p>To be sure, being stripped naked and visually inspected by strangers is a violation of basic dignity and personal privacy, especially in the absence of any suspicion of risk. \u00a0Kennedy\u2019s \u201cbalance\u201d of privacy and security needs sure seems like more of a complete sacrifice of one for the other.\u00a0 However, while <span style=\"text-decoration: underline;\">Florence<\/span> is a setback from the perspective of individual rights, it may not be all bad for future prisoners, for three reasons. \u00a0First, Kennedy\u2019s opinion did not <em>mandate<\/em> any kind of search, but rather deferred to the discretion of prison officials to decide when one is necessary.\u00a0 Second, searches involving physical contact with the detainee were not sanctioned. \u00a0Third, the majority was splintered, delivering a somewhat limited decision that fell short of a sweeping approval of strip searches in all situations.\u00a0 Nonetheless, <span style=\"text-decoration: underline;\">Florence<\/span> is a controversial decision reflecting the post-9\/11 era in which the interests of state security often supersede civil liberties.<\/p>\n<p>&nbsp;<\/p>\n","protected":false},"excerpt":{"rendered":"<p>To be sure, being stripped naked and visually inspected by strangers is a violation of basic dignity and personal privacy, especially in the absence of any suspicion of risk.  Kennedy\u2019s \u201cbalance\u201d of privacy and security needs sure seems like more of a complete sacrifice of one for the other. 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