On Monday, April 2nd, the Supreme Court quietly handed down its decision in Florence v. Bd. of Chosen Freeholders in another close 5/4 decision, split along ideological lines. All media attention on the Supreme Court last week, if people thought of the Court at all, was focused on oral arguments surrounding the challenges to Obama’s Affordable Health Care Law. Florence slipped quietly by everyone, almost unnoticed. The issues that are involved in this decision should not slip past anyone.
The question raised in Florence involves fundamental human dignity and personal privacy. Does invasive strip searching of detained citizens violate their constitutional rights under the Fourth and Fourteenth Amendments even when the offenders have been arrested for minor offenses? What is at stake here is fundamental human dignity versus police coercion.
Here are the facts in the case:
In March 2005, Albert Florence, an attractive, mature, Afro-American male, was riding with his wife, April, who was driving, and their small child in the family’s BMW SUV. They were headed for his mother-in-law’s home for a festive dinner when the car was pulled over by a N. J. State trooper. Florence identified himself as the owner of the car. When the officer checked the vehicle’s records, he found that Florence had an outstanding bill for an unpaid warrant.
This was old news for Albert Florence. Although the warrant had been paid, he had been stopped before by police so he carried a letter in his glove compartment, stating that the warrant had been paid in full. This didn’t satisfy the trooper who cuffed Florence and, to the horror of his pregnant wife and 4 1/2 year old son, took him into custody.
It was then that Florence's humiliation began. In the course of the next two weeks, Mr. Florence was held in two separate facilities in two different New Jersey counties until the authorities were satisfied that the warrant had indeed been paid and finally released him. (In other words, the cops realized that he was innocent and had been unjustly arrested!)
In the meantime he had been strip-searched twice. In both instances, he was ordered to stand naked in front of a guard and be visually searched. He next was ordered to move his genitals. He was also ordered to squat, cough and to spread his buttocks.
Mr. Florence said in an interview quoted by the NYTimes, [Here]
I consider myself a man’s man...Six-three. Big Guy. It was humiliating. It made me feel less than a man.
Of course, Mr. Florence sued. The case took seven years to work its way up through the court system until it reached the highest Court where it was argued six months ago as Florence v. Board of Chosen Freeholders. We are left to wonder why there was the unusually long six-month period between oral arguments and the handing down of the final decision. Linda Greenhouse, the NY Times Supreme Court Op-Ed columnist, believes that there was a reason for the delay. As she wrote in Thursday’s paper, “I don’t know what the back story is, but I’ve parsed enough Supreme Court opinions over the years to know that there is one.” [Here] She hints that the reason may lie with Justice Thomas who did not signal his agreement with part of Kennedy’s majority opinion.)
The majority opinion, written by Justice Kennedy with Roberts and Alito writing concurrent opinions, held that such strip searches were not a violation of a person’s constitutional rights but both Roberts and Alito seemed also very eager to add that strip searches were not a mandatory procedure for the police authorities to use. Greenhouse pointed out that the Chief Justice’s and Alito’s limiting caveats are perhaps what Justice Thomas objected to when he specifically declined to concur with this section of the majority opinion. We know from past cases, Justice Thomas has supported excessive force by police. His unusual silence in this instance was without any explanation. (Ahem!) [Here]
Justice Breyer, with Ginsberg, Sotomeyer and Kagan concurring, wrote a sharp dissent in which he spelled out his disdain for this invasive police procedure:[Here]
Even when carried out in a respectful manner, and even absent any physical touching, ... such searches are inherently harmful, humiliating, and degrading.
It is in Breyer’s listing of the particulars in the amicus briefs that we begin to learn of the full disgrace--even horror-- of strip searching. There was the strip searching of Sister Bernie Galvin, a nun, whose offense was to participate in an anti-war demonstration (she was accused of trespassing) or women who were lactating, or menstruating or --hold your breath--had just been victims of sexual abuse!
One does not need to know more about Sister Bernie Galvin [Here] to realize that it would be very unlikely that this nun or any nun would carry, in her body cavities, drugs or weapons or that she would have identifying gang tattoos on her body.
It is sad that Justices Breyer, Ginsberg, Sotomayor and Kagan were not joined by one more judge from the majority so that Breyer’s ringing words would have stood as the voice of the court, but such did not happen. We are also saddened that Justice Breyer’s outrage was not joined by a concurrence from at least one of the court’s female justices.
Naomi Wolf, the feminist activist, has already joined battle with a commentary just sent around the internet by the Readersupportednews. [Here] Her voice should and must be joined by others. This sorry tale deserves a huge chorus of women’s outraged voices.
What say you?