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April 10, 2012
Leading Supreme Court Litigator on Disappointing Outcome of Strip-Search Case
by Jeremy Leaming

Tom Goldstein has argued more than 20 cases before the U.S. Supreme Court, and in a recent interview with “The Daily Show with Jon Stewart,” delved into one of the cases he has argued, where the high court’s conservative majority rejected a constitutional challenge to jailhouse strip-searches.

About 4-and-half minutes into part one of the interviews, Jon Stewart asked Gold stein, publisher of SCOTUSblog, about the April 2 opinion upholding broad uses of strip-searches. Stewart said the 5-4 opinion in Florence v. Board of Chosen Freeholders seemed to advance an “incredibly extreme” measure of police power.

In part two, Goldstein continued that the justices on the right are “really worried about jail security.” In telling the story of Albert Florence – he was arrested for minor fines he had already paid, and then strip searched at two different New Jersey jails – Goldstein said he found the circumstances a “little hardcore,” and that “I wish we would have won, but we didn’t.”

Goldstein noted that the high court’s Florence decision does not mean that jails have to use strip-searches. But he added, “I think when the jails are allowed to do it, I think they’re pretty much going to do it.” He also lamented the fact that he was unable to persuade the justices that typically people “don’t drive around on the street hoping to get picked up so that they can smuggle something into the jail.”

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Prison policy/incarceration, Search and seizure/Fourth amendment, Privacy rights, Constitutional Interpretation and Change, Criminal Justice, Affordable Care Act, Florence v. Board of Freeholders, HHS v. Florida, Jon Stewart, strip search, Supreme Court, The Daily Show with Jon Stewart, Tom Goldstein
April 5, 2012
Supreme Court’s Disconcerting Opinion Supporting Jailhouse Strip-Searches
Guest Post

By Angela J. Davis, Professor of Law, American University, Washington College of Law

The Supreme Court upheld the constitutionality of a jailhouse strip search of a man who was wrongfully arrested for a minor offense in Florence v. Board of Chosen Freeholders of County of Burlington. Mr. Florence was riding in his car with his pregnant wife and son (his wife was driving) when a police officer pulled them over. The officer ran Mr. Florence’s name through his computer and discovered a warrant for his arrest. The warrant was issued when Mr. Florence (pictured) failed to appear at a contempt hearing regarding fines that he had not paid. Mr. Florence did appear, and he paid the fines, but the warrant was not removed from the computer database. Mr. Florence actually showed the police officer written documentation that he had complied with the court’s order, but the officer arrested him anyway. Mr. Florence was incarcerated for six days and subjected to two complete strip searches requiring him to lift his genitals, squat, cough and spread his buttocks. He was ultimately released when a court discovered the mistake.

The 5-4 decision, written by Justice Anthony Kennedy and joined by the conservative wing of the court, rejected Mr. Florence’s argument that the searches were unreasonable under the Fourth Amendment. The Court also rejected Mr. Florence’s proposal that new detainees arrested for minor offenses be exempt from strip searches unless there is reasonable suspicion to believe they are hiding contraband. The Court called the proposal “unworkable” – an interesting characterization considering the fact that the proposal seems to be working just fine in the ten states where the reasonable suspicion standard is currently the law.

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Supreme Court, Prison policy/incarceration, Search and seizure/Fourth amendment, Constitutional Interpretation and Change, Criminal Justice, Albert W. Florence, Florence v. Burlington, Guest Post, Professor Angela J. Davis, racial profiling, strip search
October 11, 2011
Professor Ifill on ‘Tremendous Resonance’ of Strip-Search Case
by Jeremy Leaming

Albert W. Florence had paid a fine for a New Jersey traffic violation and kept the document proving payment in his car, but that evidence was not enough to dissuade a state trooper from arresting him in 2005 and hauling him off to jail where he was kept for a week and subjected to two strip-searches during that time.

Florence, as recounted in this interview with the National Constitution Center and ACS, was humiliated by his pointless arrest and the treatment that followed. As The New York Times’ Adam Liptak notes in this article, a “failure to pay a fine is not a crime. It is, rather, what New Jersey law calls a nonindictable crime.”

Florence and his family were not set on letting New Jersey have the last word, and lodged a lawsuit against the county arguing that its sweeping policy of mandating strip searches of people arrested for minor offense violates the Fourth Amendment.

“I felt like my rights were violated,” he said in the National Constitution Center/ACS podcast. “I felt belittled; I just felt like I needed some type of justification.”

The Supreme Court may provide some answers in this matter. It will hear oral argument in the case, Florence v. Board of Freeholders, tomorrow morning.

University of Maryland School of Law Professor Sherrilyn Ifill, during the ACS Supreme Court Preview, highlighted the case, saying it is likely to have “tremendous resonance for many people,” for several reasons, including New Jersey’s suspect history of state troopers pulling over a wildly large percentage of black drivers.

Ifill also noted that more than 14 million Americans are arrested every year, and “very often they are arrested and ultimately not charged.”

In Florence’s case, he was clearly wrongfully arrested.

“He had in fact paid the fine,” Ifill said. “And in fact, so nervous was he about the possibility of being pulled over on this outstanding warrant, that he carried with him the copy with the seal on it – the raised seal – indicating that he in fact already paid the fine, and he showed this to the officer, but the officer” opted for what the computer showed.

After he was finally brought before a judge – Ifill noted that the authorities failed to bring Florence before a magistrate within 24 hours of his arrest, a requirement – he was cleared. The judge determined “he had in fact paid the outstanding” fine, and “therefore he should not have been arrested,” Ifill said.

In part, the justices will be asking, Ifill said, “Can a jail have a policy of blanket strip searching everyone who comes in or whether each individual is entitled to the individualized determination of whether there is a reasonable suspicion that the individual might be carrying contraband or might otherwise be concealing a weapon of some sort.”

But there is additional context to the case, Ifill noted.

“Obviously race plays a key role here,” Ifill said. “Mr. Florence is African American. New Jersey of course is the place with the famous driving while black I-95 case, in which 75 percent of people stopped and arrested on I-95 by troopers were black, although blacks constituted only 30 percent of the motorists, and all of the evidence was that blacks and whites committed driving infractions at the same level; so you’ve got the race context, but you’ve also got the context of 14 million people being arrested; that the police do make mistakes.”

Ifill’s entire remarks on the Florence case are below or here.

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