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Update on New Jersey Strip Search Case

The US Supreme Court has finally released an opinion in the case of Florence v. Board of Freeholders of Burlington County, NJ, et. al. In a previous entry, I detailed the case. The Court, in an opinion authored by Anthony Kennedy, upheld the use of strip searches in jails and prisons even for minor offenses. Most of Kennedy’s decision, in laborious detail, outlines the reasons why jail security has to take the front seat to Fourth Amendment rights and commonsense. However, neither party in this case denies the need for security. Florence’s own lawyers even argued that if, for example, a person was arrested on a drug charge, of course the jail could search them for drugs through strip searches. What Kennedy leaves out of his decision (an error not committed by Justice Breyer in his dissent) is the overwhelming amount of empirical evidence showing that using reasonable suspicion, rather than a blanket policy of strip searching, jail officials have a better track record of interdicting contraband and weapons. Kennedy offers up the odd anectdotal example of the “one fish that got away (or through)” rather than focusing on the bigger picture.

Before anyone becomes upset that this will lead to a police state where police will just strip search anyone for any arrest, there are two potential checks on this ultimate ruling. Although Roberts and Alito basically agreed with the outcome in this case, it was Alito’s concurrence that leaves open the possibility that this issue may be revisited at a later time. Hopefully then, they will get the decision absolutely correct instead of maybe 65% correct. In reading the opinions, it becomes obvious that Breyer’s dissent (joined by Ginsberg, Kagan and Sotomayor) had a lot of agreement with Alito’s concurrence. In effect, it created a 5-4 plurality decision which carries somewhat less weight than a straight 5-4 decision.

The second check on this lack of commonsense is the states themselves. Currently, ten states have laws that prohibit the very actions undertaken by the county jails in Burlington and Essex counties in New Jersey. It is incumbent upon other states that they enact similar safeguards just as many did in the wake of the ill-begotten Kelo decision.

This case was argued in October and was the last from that sitting to be decided. Obviously, there was disagreement regarding the outcome or the reasoning and it would seem to indicate that the coalition one way or the other was falling apart. This is one of the things that bothers me about the Court under Roberts- his propensity to navigate narrow decisions that sometimes add more confusion to the issue than is necessary. It has happened before and it will happen again. People may malign Clarence Thomas, but at least he is not afraid to call it as he sees it and not cowtow to another segment of the Court.

Regardless, this decision sends a message that a metric ton of prevention is worth a thimble-full of cure. It is chilling to realize that a police force can arrest someone for something as trivial as jaywalking and then, under the guise of jail security, strip search that person. Albert Florence lost his dignity at the hands of officials in Burlington and Essex County and he lost his case before the Supreme Court. In reality, until this is corrected, every American lost a little piece of constitutional protection from unnecessary and intrusive searches, which is the saddest part of this case.

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