Last week, the Supreme Court finally handed down a decision in Florence v. Board of Chosen Freeholders of the County of Burlington. In 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. The 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. Although Florence had paid off the fine—associated with a prior incident—the New Jersey database still showed it as unpaid. Thus, the warrant was kept open. Florence 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 “open his mouth, lift his tongue, hold out his arms, turn around, and lift his genitals.” As if this episode wasn’t 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.
Florence was released after the state discovered its mistake. He promptly sued under violations of the 4th and 14th Amendments. The District Court granted Florence summary judgment, banning such strip searches of minor offenders as overly invasive. This decision was reversed by the 3rd circuit, and the case eventually made its way to Washington. Six months after the Supreme Court listened to oral arguments, the conservative majority prevailed in an opinion by Justice Kennedy upholding suspicionless searches as Constitutional. Chief Justice Roberts and Justice Alito, while joining the majority in full, each filed concurrences. Justice Breyer led the dissenters.
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. Kennedy argued that the prison officials had found “a reasonable balance between inmate privacy and the needs of the institutions.” The idea is that police don’t know the character of the people they arrest; while some are harmless, some may in fact be quite dangerous to other prisoners. On the other hand, it mattered to the Court that Florence was kept among the general prison population. Kennedy was explicit that the decision did not cover the Constitutionality of suspicionless searches of detainees who could be kept apart from other prisoners. The Roberts and Alito concurrences stressed this point. The irony, of course, is that Florence was wrongly arrested in the first place—the outdated bench warrant for his arrest should never have remained open in the database. This set of facts even led Florence to question whether he was targeted because he was black. But the Court wasn’t focused on the mistaken arrest; it was only concerned with security procedures after the fact.
This was a narrowly divided issue, and not just in terms of the 5-4 vote. The Court took an unusually long time to produce this decision. 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.
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’s “balance” of privacy and security needs sure seems like more of a complete sacrifice of one for the other. However, while Florence is a setback from the perspective of individual rights, it may not be all bad for future prisoners, for three reasons. First, Kennedy’s opinion did not mandate any kind of search, but rather deferred to the discretion of prison officials to decide when one is necessary. Second, searches involving physical contact with the detainee were not sanctioned. Third, the majority was splintered, delivering a somewhat limited decision that fell short of a sweeping approval of strip searches in all situations. Nonetheless, Florence is a controversial decision reflecting the post-9/11 era in which the interests of state security often supersede civil liberties.
Very useful post. I think you’re quite right that the opinion is part of a larger legal-cultural turn after 9/11. (On that point, I think Harcourt supports your view: http://balkin.blogspot.com/2012/04/police-state-logic.html.) I’d just add that at the level of constitutional law and Kennedy-ology, the opinion is a real disappointment: how can the Kennedy who endorsed a more robust dignitary view of prisoners rights in Brown v. Plata permit these degrading searches to be done to pre-arraignment detainees?
I think you might see too sunny a future for strip-search cases. Strip search cases were one of the last places courts did not defer to correctional officials’ views. Most correctional officials think blanket strip-search policies are a bad idea. Still class-action litigation remained a deterrent on any outlier jail blanket search policies. Private public-interest lawyers were given incentives to bring these suits, allowing public-interest orgs. to patrol higher priority prison and jail issues (e.g., prison rape, medical care, mass incarceration). The model has changed though. Finding which claims can be litigated under the majority’s holding and what group of people is affected will be hard. Classes may not be easily certified. The private att’y general effect will go away. It is unclear who will step up or what form litigation will take.
Great points Josh. It’s definitely a disappointing turn for Kennedy, and I hope it doesn’t reflect a broader slide to the right for him (healthcare!). As for the future of strip search cases, you are probably right that I was overly optimistic. But it is still noteworthy that two of the majority votes filed concurrences, and Kennedy’s Part IV seemed to be a bit of a compromise which limited the holding. Finding future claims will indeed entail hard work, but one possible approach is to seek out detention centers with the capacity to hold pre-arraignment minor offenders apart from the general prison population.