Instant Analysis: Florence v. Freeholders of County of Burlington

April 2nd, 2012

Strip searches are constitutional. It’s a Jersey Thing. This was a 5-4, except Thomas did not join Part IV regarding cases where an inmate is *not* transferred to the general population

Justice Kennedy Majority/Plurality Opinion

So here, the Court is not expert enough to micromanage a prison.

The case turns in part on the extent to which this Court has sufficient expertise and information in the record tomandate, under the Constitution, the specific restrictionsand limitations sought by those who challenge the visualsearch procedures at issue. In addressing this type of constitutional claim courts must defer to the judgment of correctional officials unless the record contains substantial evidence showing their policies are an unnecessary or un-justified response to problems of jail security. That necessary showing has not been made in this case. . . . The difficulties of operating a detention center must not be underestimated by the courts. Maintaining safety and order at these institutions requires the expertise of correctional officials, who must have substantial discretion to devise reasonable solutions to the problems they face. The Court has confirmed the importance of deference to correctional officials and explained that a regulation impinging on an inmate’s constitutional rights must be upheld “if it is reasonably related to legitimate penological interests.”

I won’t even bother trying to reconcile this with Kennedy’s opinion in Brown v. Plata that told California that it had to release 40,000 prisoners due to overcrowding. The most dangerous prisoners can be let out, but the inmates in prison for most trivial offenses can have a prison guard peer into their anuses and genitalia. Got it.

Look at how the question is phrased–the answer is not surprising:

The question here is whether undoubted security imperatives involved in jail supervision override the assertion that some detainees must be exempt from the moreinvasive search procedures at issue absent reasonablesuspicion of a concealed weapon or other contraband. The Court has held that deference must be given to the officials in charge of the jail unless there is “substantial evidence” demonstrating their response to the situation is exaggerated. Block, 468 U. S., at 584–585 (internal quotation marks omitted). Petitioner has not met this standard, and the record provides full justifications for the procedures used.

We got “undoubted security imperatives” v. mere “assertions.” And, challengers bears the burden, while the prison receives “deference.”

So AMK makes the point that offenders for minor crimes can be the most dangerous:

The record provides evidence that the seriousness of anoffense is a poor predictor of who has contraband and that it would be difficult in practice to determine whetherindividual detainees fall within the proposed exemption. People detained for minor offenses can turn out to be the most devious and dangerous criminals. Cf. Clements v. Logan, 454 U. S. 1304, 1305 (1981) (Rehnquist, J., in chambers) (deputy at a detention center shot by misdemeanant who had not been strip searched). Hours after the Oklahoma City bombing, Timothy McVeigh was stopped by a state trooper who noticed he was driving without a license plate. Johnston, Suspect Won’t Answer Any Questions, N. Y. Times, Apr. 25, 1995, p. A1. Police stopped serial killer Joel Rifkin for the same reason.McQuiston, Confession Used to Portray Rifkin as Methodical Killer, N. Y. Times, Apr. 26, 1994, p. B6. One of the terrorists involved in the September 11 attacks was stopped and ticketed for speeding just two days before hijacking Flight 93. The Terrorists: Hijacker Got a Speeding Ticket, N. Y. Times, Jan. 8, 2002, p. A12. Reasonable correctional officials could conclude these uncertainties mean they must conduct the same thorough search ofeveryone who will be admitted to their facilities.

How is *any* of this in the record?

CT did not join Part IV:

This case does not require the Court to rule on the typesof searches that would be reasonable in instances where, for example, a detainee will be held without assignment tothe general jail population and without substantial contactwith other detainees. . . . before the Court, however, do not present the opportunity to consider a narrow exception of the sort JUSTICE ALITO describes, post, at 2–3 (concurring opinion), which might restrict whether an arrestee whose detention has not yet been reviewed by a magistrate or other judicial officer,and who can be held in available facilities removed from the general population, may be subjected to the types of searches at issue here.

So I gather CT would have gone even further, and held that such searches are appropriate even if the prisoner is not to be sent into general population. But, as he is wont to do, Thomas does not concur separately to tell us what is on his mind.’

And amazingly, the word “dignity” appears nowhere in AMK’s opinion (Breyer uses it in dissent). In fact, he poopoos the concerns:

Petitioner’s amici raise concerns about instances of officers engaging in intentional humiliation and other abusive practices. See Brief for Sister Bernie Galvin et al. as Amici Curiae; see also Hudson, 468 U. S., at 528 (“[I]ntentional harassment of even the most hardenedcriminals cannot be tolerated by a civilized society”); Bell, 441 U. S., at 560. There also may be legitimate concerns about the invasiveness of searches that involve the touching of detainees. These issues are not implicated on thefacts of this case, however, and it is unnecessary to con- sider them here.

Roberts, concurring

The Chief concurs (curiously?) to leave the door open to possible exceptions to the rule:

I join the opinion of the Court. As with JUSTICE ALITO, however, it is important for me that the Court does not foreclose the possibility of an exception to the rule it announces. . . . The Court makes a persuasive case for the general applicability of the rule it announces. The Court is nonetheless wise to leave open the possibility of exceptions, toensure that we “not embarrass the future.” Northwest Airlines, Inc. v. Minnesota, 322 U. S. 292, 300 (1944) (Frankfurter, J.).

Imagine that JGR assigns an opinion to AMK, and the Chief concurs to say the majority isn’t balanced enough in favor of prisoner rights.

Alito, concurring

Alito also joins to narrow the scope of the opinion:

nothold that it is always reasonable to conduct a full strip search of an arrestee whose detention has not been reviewed by a judicial officer and who could be held in available facilities apart from the general population. Most of those arrested for minor offenses are not dangerous, and most are released from custody prior to or at the time oftheir initial appearance before a magistrate. In some cases, the charges are dropped. In others, arrestees are released either on their own recognizance or on minimal bail. In the end, few are sentenced to incarceration. For these persons, admission to the general jail population, with the concomitant humiliation of a strip search, may not be reasonable, particularly if an alternative procedure is feasible.

So in other words, if the person is not dangerous, he should not be humiliated.

Breyer, dissenting

So much for Sotomayor writing the majority opinion. She didn’t even write the dissent, which makes me think that she never had it assigned to her.

In contrast, rather than opening up with an ode to judicial deference to experts, Breyer (of all people!) focus on the humiliating nature of strip searchers:

In my view, such a search of an individual arrested for aminor offense that does not involve drugs or violence—saya traffic offense, a regulatory offense, an essentially civilmatter, or any other such misdemeanor—is an “unreasonable searc[h]” forbidden by the Fourth Amendment, unless prison authorities have reasonable suspicion to believethat the individual possesses drugs or other contraband. And I dissent from the Court’s contrary determination.

Breyer focuses on the safety cost to the individual’s dignity. Kennedy focuses on the liberty cost to the prison’s order and security.

I doubt that we seriously disagreeabout the nature of the strip search or about the seriousaffront to human dignity and to individual privacy that it presents. The basic question before us is whether sucha search is nonetheless justified when an individual arrested for a minor offense is involuntarily placed in the general jail or prison population.

This dissent is somewhat unique as it tracks so carefully where it agrees with, and departs with the majority:

Nonetheless, the “particular” invasion of interests, Bell, 441 U. S., at 559, must be “‘reasonably related’” to the justifying “penological interest” and the need must not be “‘exaggerated.’” Turner, supra, at 87. It is at this point that I must part company with the majority. I have found no convincing reason indicating that, in the absence of reasonable suspicion, involuntary strip searches of thosearrested for minor offenses are necessary in order to further the penal interests mentioned. And there are strongreasons to believe they are not justified.

Here, the prison officials bear the burden of justifying their policy.

Indeed, neither the majority’s opinion nor the briefs setforth any clear example of an instance in which contraband was smuggled into the general jail population during intake that could not have been discovered if the jail was employing a reasonable suspicion standard. . . .

The majority is left with the word of prison officials insupport of its contrary proposition. And though that wordis important, it cannot be sufficient.

And, of course, Breyer cites experts!

Second, there is the plethora of recommendations of professional bodies, such as correctional associations, that have studied and thoughtfully considered the matter. The American Correctional Association (ACA)—an association that informs our view of “what is obtainable and what is acceptable in corrections philosophy,” Brown v. Plata, 563 U. S. ___, ___ (2011) (slip op., at 43)—has promulgated a standard that forbids suspicionless strip searches.