Strip searched for violating a leash law

The Supreme Court continues to flex its unelected muscles. In their latest tour de force — perhaps a warm-up to stripping 35 million Americans of insurance protections enacted for them by the Congress and a President elected by 69 million people — five old men chosen, more or less, off the street, at least not subject to any official requirement other than tight insider political connections, declared they can have you stripped naked for whatever they jolly well please, from walking with an unleashed dog to driving a bicycle with a broken bell. As Lord Acton observed long ago, “Power tends to corrupt, and absolute power corrupts absolutely.” The NYT explains here. Money quote:

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.

Allowing five unelected political cronies to make laws for 313 million is a basic flaw in our current system of government.

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37 Comments . Leave a comment below.
  1. Selected population

    Jails are dirty, dangerous places, so it’s necessary to suspend the rights of people we haul into them. Also, imaginary studies have shown that people who ride bicycles without loud bells are much more likely to be hiding dangerous implements between their cheeks.

  2. But, Counselor, how about the precedent in

    “Goose v. Gander”?

    Police Inspector Raines shocked by Mason, Esq.

    (( Happy days. ))

  3. We cab also shoot teenagers armed with Skittles

    but only if they are black.

    • This is exactly backwards

      The failure of the Unelected Five (in this case anyway) lies not making “laws for 313 million” but in failing to assert constitutional rights.

      The “basic flaw” goes far beyond the court to embrace what has become the dark authoritarian side of the American spirit

      • Yes, the dark power of government needs to lord over its subjects.

        As with the TSA’s strip search machines viewing of mostly good looking people, expect to see the thugs of government strip searching the good looking youth for thrill. Not for safety. “We was only following procedures.” is their cry.

        Any hope for protection is in state law.

        I’m reminded of third world countries where the women would smear their faces with feces to save themselves from the attention of passing warlords. We’re getting there…

        “The greater the power, the more dangerous the abuse.” –Edmund Burke

  4. Ugh, this is such a bad decision

    I really don’t understand the logic on this one. It seriously made me almost throw my computer across the room when I read about it. Horrible.

    Gosh, nobody can foresee how this might be abused, right? Gah.

    On an unrelated note, though, I can’t help but think that this doesn’t pass the “shoe on the other foot” test:

    Allowing five unelected political cronies to make laws for 313 million is a basic flaw in our current system of government.

    If we had more fairminded justices who voted 5-4 for Gore, against Citizens United, and the other way on this, I bet we might be saying “Thank God we have an independent judiciary that isn’t subject to political whims!” (Think: Brown v. Board of Education decision or Miranda v. Arizona.) The problem isn’t that they’re “unelected political cronies” it’s that they were chosen by increasingly conservative politicians.

    • The shoe on the other foot test is a straw man

      And seems awfully fair-and-balanced-y to me. The only relevant question is ‘were these decisions right?’ By all reasonable accounts, the answer’s no.

      If our court system is broken — and it looks like it to me — then it’s broken no matter who’s got the majority. There has to be a check on the court.

      We need to start worrying about Who’s Watching the Watchmen, lest we have a constitutional crisis due to a run-a-muck court system.

      RyansTake   @   Tue 3 Apr 7:40 PM
  5. What are you saying?

    Bob, I get that you think the decision is wrong. But you seem to be saying that the problem is that the justices are unelected. Are you saying elected judges would be better? If not, what exactly are you complaining about other than that you don’t like the outcome? This decision, right or wrong, doesn’t seem to be a poster child for judicial activism against the democratically elected branches.

    • Elected Supreme Court justices would clarify the current reality

      Do you find it shocking to place such power in the hands of five elected justices? I do. Imagine the campaigning, indeed. But if elections for justices are hard to imagine, then how much worse to have such power in the hands of cronies of the appointing president, as at present. So, yes, elections for Supreme Court in a democratic alternative we should consider. The Presidency and the Senate have been democratized since our founding, which is to the good. High time for the court to be brought into the modern era.

      Other democratizing alternatives include age limits, term limits, expanding its size, and indirect elections. If you can think of others, by all means suggest them.

      • Focus on what's important

        I’m not sure that today’s Supreme Court is any worse than other low-points. In particular, I’m not sure that it’s bad enough to merit putting even more power into the hands of an electorate bought by the Citizen’s United decision.

        Democrats (real Democrats) need to win this election. Democrats need to change the mix of the current Court. Democrats need to exercise the power we already have in the demographics of the US.

        Democrats held a majority of the Senate and House from 2008 to 2010, and we allowed an activist (and racist) minority to wreak havoc. We must not repeat that mistake. Democrats still hold a majority in the Senate, and we should use it while we can.

        It seems to me that our most important task is to re-establish our identity and brand, and exercise the authority and power that identity and brand already has. If we fail to do that, electing Supreme Court justices only makes things worse. If succeed at that, the process is good enough the way it is.

        I think we need to redouble our focus on who we are and why our vision is best for America. When we succeed at that, the other needed changes will come.

      • Ugh

        You think the problem is a lack of democracy, but in fact there’s an easy democratic answer to the problem posed by this last decision–let’s enact a law that bans strip-searches in whatever circumstances we think best! If we don’t have the political will to pass such a law, then why would we think electing justices would solve the problem?

    • Huh?

      Five people just said you can be strip-searched for forgetting to put on your turn signal. What happened here is absolutely the “poster child for judicial activism.”

      Let’s not forget that this country was formed in great part because we were under the thumbs of an intrusive government.

      It’s what gave us the fourth amendment. You know,

      “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

      In what sane interpretation of the fourth amendment could strip-searching someone for forgetting a turn signal pass constitutional muster? NONE!

      RyansTake   @   Tue 3 Apr 7:48 PM
  6. The lesson here is that

    conservatives are now reaping what they’ve sown. Elections and politics have consequences, and these are the consequences of the last 30 years.

    Bernard E. Harcourt calls it Police-State Logic:

    The Court embraced today a “police-state logic.” It is a logic that seeks to eliminate, to absolutely eradicate and purge any and all security risks, no matter how small they might be. It demands total suppression and erasure of risk. The police-state logic is about identifying, describing, cataloguing any and all possible security risks, no matter how trivial, and then effectively giving the state security apparatus free rein to adopt the most penetrating strategy to obliterate that risk.

    We are on the road to serfdom, and movement conservatism and the GOP are to blame.

  7. So much for "no difference between GOP and Democrats"

    Here are the current Supreme Court justices, in order of who nominated them (and then alphabetically):

    Ronald Reagan: Anthony Kennedy, Antonin Scalia
    George H. Bush: Clarence Thomas
    Bill Clinton: Stephen Breyer, Ruth Bader Ginsberg
    George W. Bush: Samuel Alito, John Roberts
    Barack Obama: Elena Kagan, Sonia Sotomayor

    Let’s just review how these justices lined up for this decision:

    Majority: Kennedy, Roberts, Scalia, Alito, Thomas (Reagan, H. Bush, W. Bush)
    Minority: Breyer, Ginsberg, Sotomayor, Kagan (Clinton, Obama)

    I’d like to offer a rather pointed observation: a number of my liberal/progressive friends felt and argued passionately that there was “no difference” between Democrats and Republicans, that Al Gore was far too conservative and far too closely associated with the “too conservative” administration of Bill Clinton, and that it was “time to send a message”.

    They voted for Ralph Nader. Had they voted for Al Gore instead, George W. Bush would not have been president. Mr. Alito and Mr. Roberts would not be Supreme Court justices today.

    So much for “no differences”. Sadly, it appears that we all got “the message”.

    We face another historic election this year. The two longest-serving justices, Mr. Kennedy and Mr. Scalia, were each appointed by Ronald Reagan and are each 76 years old. Mr. Kennedy wrote the majority opinion in this decision. There is some likelihood that whoever is president between 2012 and 2016 will replace at least one of these two men.

    With all due respect for the passion of the Occupy movement (of which I am an enthusiastic supporter), I want to re-iterate: there is a great deal of difference between the Barack Obama and any of the GOP nominees. For all the disappointment we all might have with the shortcomings of Barack Obama, those shortcomings pale in comparison to what life in America will look like if Mr. Kennedy or Mr. Scalia is replaced by President Romney or by President Santorum.

    We must not allow our passion for the best to elect the worst.

  8. These guys know it'll never happen to them

    And they lack the imagination to care about people other than themselves- whether it’s a young guy in New York with a tail light out or a suburban mother down South arrested on suspicion of violating a leash law. Think Alito’s ever been given the full monty by the TSA, or hauled into jail because of a mix-up at the RMV? I doubt it. So he doesn’t care.
    Bunch of assholes, really, and not nearly as smart as they think they are.

    • Amen.

      And when do you hear what passes for our leadership speak of liberty, justice, freedom, equality? Who runs on those platforms?

      I just bought some stamps at the post office that contained those words. I had to ask the clerk how old the stamps were.

      “Freedom is never voluntarily given by the oppressor; it must be demanded by the oppressed.” –Martin Luther King, Jr.

      • Sometimes We Do - And Powerfuly So

        “America can do whatever we set our mind to. That is the story of our history, whether it’s the pursuit of prosperity for our people, or the struggle for equality for all our citizens; our commitment to stand up for our values abroad, and our sacrifices to make the world a safer place. Let us remember that we can do these things not just because of wealth or power, but because of who we are: one nation, under God, indivisible, with liberty and justice for all.” – President Obama, Remarks on the death of Osama Bin Laden, May 1, 2011

        “We also understand that a declaration is not a government; a creed is not enough. The Founders recognized that there were seeds of anarchy in the idea of individual freedom, an intoxicating danger in the idea of equality, for if everybody is truly free, without the constraints of birth or rank or an inherited social order- if my notion of faith is no better or worse than yours, and my notions of truth and goodness and beauty are as true and good and beautiful as yours- then how can we ever hope to form a society that coheres? Enlightenment thinkers like Hobbes and Locke suggested that free men would form governments as a bargain to ensure that one man’s freedom did not become another man’s tyranny; that they would sacrifice individual license to better preserve their liberty.” – Barack Obama, The Audacity of Hope, Fall 2006

        • Yes

          But sometimes actions trump nice words. I voted for hope and change. What we got was a faster slide of government to becoming the world’s Murder, Inc.

          “Speech is power: speech is to persuade, to convert, to compel” –Ralph Waldo Emerson

          • WRONG

            The action we got, as it pertains to this discussion, was the successful nomination of justices Elena Kagan and Sonia Sotomayor to the Supreme Court. Do you have a problem with that?

            I’m not sure what you suggest as an alternative, but the last time I heard talk like this it was the supporters of Ralph Nader who succeeded in ensuring that George W. Bush was elected. The action we got from that was the successful nomination of justices Samuel Alito and John Roberts.

            I don’t know about you, I think door “A” (the former) is way way better than door “B” (the latter).

            What is YOUR suggestion?

            • I do have a defect.

              I put being a democrat ahead of being a Democrat.

              “A government full of Democrats would rather have you be a Republican, and a government full of Republicans would rather have you be a Democrat, than have you oppose both.” –Brian Celio

              • No doubt

                My friends who pulled the lever for Ralph Nader in 2000 were all sincere, passionate, and idealistic. Presuming that you live here in MA, I suspect that your vote or mine won’t make much difference to the outcome of the presidential race.

                Nevertheless, voters in Florida and Ohio, in 2000, who chose Ralph Nader over Al Gore essentially elected George W. Bush — and put Samuel Alito and John Roberts on the Supreme Court. Like it or not, that’s the way our system works (or doesn’t work).

                In this election, turnout will be key. If the “democrats” (as opposed to Democrats) stay home this November, we’ll end up with President Romney — and potentially one or two more right-wing Supreme Court nominees.

                Where does that outcome fit in your democrat-Democrat continuum?

                • I doubt the Democrats need fear the 2012 election.

                  The president need only run on the “lesser evil” or “the devil you know is better than the devil you don’t know” ticket. Mitt’s running on the “tell ‘em what they want to hear” ticket. And some of that is not what others want to hear. As and example: “Bomb Iran” might sound butch to some but it sounds kill crazy to others.

                  When I hear people talk of federal politics they seem to agree that there is little difference between parties. I suspect that will lead to a vote for the status quo.

                  “The status quo is the only solution that cannot be vetoed.” –Clark Kerr

          • Nonsense

            What we got was real change. In addtion to the SJC nominees that tom mentions, Obama:

            1) Passed real Health Care Reform that will cover at least 32 million currently uninsured Americans *and* slow the growth of health care costs that otherwise threaten to destroy our economy and bankrupt the nation.

            2) Passed the$787 billion American Recovery and Reinvestment Act, turning around the economy and creating almost 4 million new private-sector jobs. This was crucial to preventing billions in state budget cuts, particularly to the Medicaid programs.

            3) Passed the Dodd-Frank Wall Street Reform and Consumer Protection Act (2010) to re-regulate the financial sector and create the Consumer Financial Protection Bureau.

            4) Ended the War in Iraq: Ordered all U.S. military forces out of the country. All but a handful of troops left at the end of last year.

            5) Started the End of the War in Afghanistan: Down 10,000 already, another 23,000 troops will leave by the end of summer 2012. The combat mission – God willing – is scheduled to end by the end of next year.

            - Saved the American auto industry.
            - Killed Osama Bin Laden
            - Re-capitalized the banks (at almost no cost to the government).
            - Repealed “Don’t Ask, Don’t Tell”
            - Defeated Moammar Gaddafi (no American lives lost).
            - Ended use of “enhanced interrogation.”
            - Nationalized tje student loan system.
            - Increased fuel efficiency standards.
            - Etc, etc, etc.

  9. are you saying....

    That people heading into general population in prison should not be searched?

    Yes, the article says:
    “Every detainee who will be admitted to the general population may be required to undergo a close visual inspection while undressed”

    But, it also said:
    “The Supreme Court did not say that strip-searches of every new arrestee were required; it ruled, rather, that the Fourth Amendment’s prohibition of unreasonable searches did not forbid them. ”


    “Justice Alito wrote that different rules might apply for people arrested but not held with the general population or whose detentions had “not been reviewed by a judicial officer.”

    It would be very easy for any state or the federal government to pass a law stating “there shall not be any strip searches of any person going into general population”. But, then, there may have been an article about Mr. Florence being stabbed and killed by someone that was not searched and smuggled in a knife.

    • Easy?

      Have you seen the way things have trended in the past 50 years? Our government is becoming fascist. Strip-searching is just the latest trend, and it isn’t a new one. Just ask anyone who’s gone to an airport recently.

      I’m sorry, Chili, but this reading of the constitution isn’t a reading. It’s a bastardization. We fought a fucking civil war to get away from an intrusive government, and one of the direct results of that intrusive government was the fourth amendment. You know, this one:

      The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

      Emphasis mine. Probable cause isn’t exactly a high mark for cops to achieve, but it at least respects the citizens of this country. They shouldn’t be able to willy nilly strip search any person on the streets, just because they didn’t leash their dog, or they forgot to turn on their turn signal. Because that’s EXACTLY what this decision will enable cops to do.

      And don’t expect governments to give up that power anytime soon.

      RyansTake   @   Tue 3 Apr 8:02 PM
      • ok.. I agree...

        …that this guy should not have been arrested, not have been sent to jail and should not have had to wait a week to get out. All of that is correct…

        My question to you is: Is it correct for all people being sent to general population in prison be strip searched? If all people being sent to prison should not be strip searched, who should and who shouldn’t?

        • No, it is not right to strip search everyone

          who is sent to jail? We’re not talking prison here. We’re talking jail. People should not be going to prison for stupid offenses. People who are arrested for “driving with a noisy muffler, failing to use a turn signal, and riding a bicycle without an audible bell” should be held in a jail for a very short period of time.They should not be stripped searched.

          For people going into the general population in a prison, it’s more debatable, but actual evidence is important to the debate.

          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 contra¬band 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,” Breyer’s dissent at page 8. Truth is, we do not know if there are any such cases where there was no prior reasonable suspicion that the person was carrying contraband, but let’s put that aside).

  10. Once again this makes me wonder...

    …why potential elevations to SCOTUS are not at the top of any list of issues to focus on in presidential and senatorial campaigns.

  11. Um...

    Can you even be arrested for ‘violating a leash law’ ??

    ‘Cause, if you can, then balking at a strip search seems like a late protest…

    It seems, to this non-lawyer at least, like leash-law violations are civil infractions punishable by fine, no? The same goes for many driving infractions. If the police are routinely moving directly from an unleashed pet to arrest and incarceration, then the problem is much much bigger and we’re a little late to the protest, doncha think?

    I have some sympathy for the argument that the police have a right to conduct searches to protect the general jail and/or prison population from individuals who may wish to smuggle contraband. I’m not at all sure I understand the outrage here: is there a widespread abuse of leash-laws leading to arrest, incarceration and strip-searches? I do not think that this ruling is the outrage it is being portrayed as…

    • I'm with you

      It seems to me that the core issue is why we’re allowing our gov’t to arrest people for things that should be civil infractions. If we dealt with that issue, then the practice of strip searches in jails would be a lot less fraught with the potential for abuse.

    • It doesn't sound like you're familiar with the facts of the case

      Albert Florence was a passenger in a vehicle stopped by police. No citations were issued, the vehicle was doing nothing wrong. A warrant was outstanding claiming, incorrectly, that a fine was unpaid. The warrant called for him to be taken to a magistrate — not jail. Mr. Florence was held for seven days and strip-searched twice before ultimately being released (when he finally faced a magistrate who immediate realized and admitted that the warrant should never have been issued).

      Mr. Florence, by the way, is black. Yes, I do think that’s relevant — I don’t think a white man would have been stopped in New Jersey that day seven years ago, I don’t think a white man would have been humiliated in front of his young child, and I don’t think a white man would have been jailed for a week or strip-searched even once, never mind twice.

      Mr. Florence should never have been part of the general jail population.

      This is a Supreme Court advancing a racist right-wing agenda on behalf of a racist right-wing GOP — the racist subtext is striking, particularly in the context of the similarly racist tragedy playing out in Sanford, FL.

      This ruling is outrageous, on virtually EVERY level. In addition to being racist, if left unchallenged it buttresses a “police state” mentality where anything goes so long as the police are doing it. This ruling will lead to more abuse of protesters, more abuse of minorities, and further descent into the abyss of a democratically-elected police state.

      • sounds to me like...

        … the facts of the case are outrageous. And have little to do with strip searching. If the victim believed the cops, the individual cops, acted with egregious racism, strip searching, while probably ‘piling on’, doesn’t seem to be the core of this particular case. Kind of like if Trayvon Martins parents sued George Zimmerman solely for using an unsanitary bullet.

        Mr. Florence should never have been part of the general jail population.

        Obviously, blatantly, very true. The physical fact, however so encountered, of being in the jail population, however, doesn’t preclude the possibility of a strip search. Once you’ve taken a bite out of that cake, you can’t opt out of digesting the whole thing. So, it seems, the idea of being arrested and strip searched for ‘a leash law violation’ is a bit of hysteria. You can be wrongfully arrested under most any circumstances, and the actual circumstances of your arrest, be it ‘leash law violation’ or ‘outstanding warrant’ or even ‘driving while black’, are germane only to the extent that the individual cop, be they racist, dumb or just mean, uses and/or abuses them. Wrongful arrest, so it seems, is… well… wrongful. Why do we have to focus on one part of the jail experience to the exclusion of eliding the wrongfulness of the arrest.

        I have to agree, in a very narrow sense, with the majority here: in an arrest, with the reasonable expectation of smuggling. strip searches are permissible. If the problems of smuggling is widespread enough then police need to start investing in security scanners like those used at airports, if they haven’t already.

        But the idea of flagrantly wrongful arrests and abuses stemming from the wrongful arrests is an entirely separate matter, of which strip searching, as a result of wrongful arrests, is but one facet.

        • We don't want a police state

          You ask:

          Why do we have to focus on one part of the jail experience to the exclusion of eliding the wrongfulness of the arrest.

          Because our Fourth Amendment right to be protected from unreasonable search is a foundation stone of our freedom. There was no “suspicion”, there was no reasonable cause — this decision gives jailers carte blanch to search whomever they want whenever they want for whatever reason they want. All in the name of “security”, even though Mr. Florence was never suspected of anything.

          I don’t want to live in a society that empowers jailers to perform these dehumanizing and invasive body searches for no reason.

          • Meh...

            Because our Fourth Amendment right to be protected from unreasonable search is a foundation stone of our freedom. There was no “suspicion”, there was no reasonable cause

            How is this any different that what occurs at airports, daily?

            — this decision gives jailers carte blanch to search whomever they want whenever they want for whatever reason they want. All in the name of “security”, even though Mr. Florence was never suspected of anything.

            I quite agree. He should not have been in jail. The problem here was the being placed in jail in the first place. However, once in, decrying what happens in there, seems to be missing the boat… If the system was flawless, perfect and entirely untainted in any way then there would be no question.

            If I, not being a world traveller and greatly disdainful of airports in general, were suddenly forced to go to an airport and undergo the rigorous and intrusive screening that occurs there…. I would be mad at the person or persons who forced me to go there, and at whatever bogus made-up reasons they used to get me there… I would not be mad at what happens at airports every day (even though that’s one of the myriad reasons I’m not much of a traveller…) and any litigation that results from my being forced to go to the airport would not so much as mention what goes on in airports; rather I would decry and deplore the false and wrongful method of getting me there in the first place.

            A strip search that occurs as the result of a wrongful arrest is wrong. Shouldn’t be done. But that does not obviate the need for any strip search

            • Several things

              First, the searches at airports are intrusive. Many people avoid air travel because of them. Second, even those are not strip searches.

              I think the Fourth Amendment exists precisely because governments find so many reasons why unreasonable searches of innocent people are “needed”. The burden of proof should be on whomever wants to perform the strip-search, and should require something like probable cause to suspect a particular individual may be a threat.

              I do not want to live in a society that empowers jailers to perform these intrusive and demeaning searches on every person they take into custody.

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