The Supreme Court's Disturbing Decision

Strip Searching just for kicks

By ADAM COHEN

It might seem that in the United States, being pulled over for driving without a seat belt should not end with the governmentordering you to take off your clothes and "lift your genitals." But there is no guarantee that this is the case -- not since the Supreme Court ruled this week that the Constitution does not prohibit the government from strip searching people charged with even minor offenses. The court's 5-4 ruling turns a deeply humiliating procedure -- one most Americans would very much like to avoid -- into a routine law enforcement tactic.

This case arose when a man named Albert Florence was pulled over by New Jersey state troopers while he was driving to his parents' house with his wife and young son. The trooper arrested him for failing to pay a fine -- even though, it turned out, he actually had paid the fine. Florence was thrown into the Essex County Correctional Facility, which has a strip search policy for all new arrestees.

Florence -- who had not even violated the law -- was subjected to one of the more degrading interactions a citizen can have with his government. He was made to disrobe, lift his genitals for the guards to show that he was not hiding anything, and cough in a squatting position. Florence said he was strip searched twice.

After he was released, Florence sued, arguing that strip searches of people arrested for minor offenses violate the Fourth Amendment. There is a lot of support for the view that strip searches are an extreme measure that should only be used when the government has reason to believe the specific person they want to search is concealing weapons, drugs, or other contraband. The American Correctional Association -- the oldest and largest correctional association in the world -- has a standard saying that strip searches should only be used when there is individualized suspicion. Law enforcement groups -- including the U.S. Marshals Service and the Immigration and Custom Services -- adhere to this standard.

Many courts have said just what Florence argued -- that the Constitution prohibits strip searches of people arrested on minor offenses unless there is individualized suspicion. That includes at least seven U.S. Courts of Appeals -- the powerful federal courts that are just one rung below the Supreme Court. Ten states -- including Florida and Michigan -- actually make suspicionless strip searches illegal.

But the Supreme Court, by a 5-4, has now given its blessing to strip searches of people who are charged with minor crimes -- even if the government has no specific reason to believe they are concealing anything. The majority focused on how hard jailers have it. "The difficulties of operating a detention center must not be underestimated by the courts," the majority opinion said. Strip searches can help keep weapons out of prisons -- and disease -- and lice.

But the dissenters make a much more compelling case. Justice Stephen Breyer makes the most important argument: that being forced to get naked and be stared at by strangers is inherently "humiliating and degrading." He then set out some of the many disturbing ways in which the government has used this troubling power -- including to strip naked a nun, who had served for 50 years as a Sister of Divine Providence, when she was arrested during an anti-Vietnam War protest. Justice Breyer also noted the kinds of offenses that people have committed that have led to them being strip searched: driving with a noisy muffler, failing to use a turn signal, and riding a bicycle without an audible bell.

Finally, the dissent demolishes the main point made in favor of strip searching every arrestee: that it is necessary to keep prisons secure. In fact, there are many ways of keeping weapons and contraband out that are far less degrading. The prison Florence was admitted to also does pat-frisks of inmates and makes them go through metal detectors. One of these detectors is something called the Body Orifice Screening System chair, which can detect metal hidden in the body when inmates sit on it.

People do not like being physically humiliated by their government. The outraged reaction of many Americans to the TSA's post-9/11 airport screening procedures shows how deeply people feel about it -- even when the purpose is the very important one of stopping armed terrorists from getting on airplanes. The Supreme Court majority, however, does not seem to get it -- or to appreciate the fact that when the government can strip search people who do not wear a seat belt it can strip search any of us.

The conservative Supreme Court majority has been on a crusade in the last few years on behalf of its own very peculiar ideal of freedom. In 2010 in Citizens United v. F.C.C. the court upheld the freedom of large corporations to spend unlimited amounts of money to decide federal elections. At the health care arguments last month, the Justices seemed like they may be inclined to stand up for people's freedom not to participate in a government health care plan. But when there is a case in which the freedom at stake is crystal clear -- the right not to needlessly lift one's genitals or squat while coughing for a law enforcement official -- this court is firmly focused on the government's important interests in taking it away.