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Naked Abuse of Power

Ann Schneider May 3

By Ann Schneider

 

 

When Albert Florence’s spouse, April, was pulled over for speeding by a New Jersey State Trooper in March 2005, little did she know that the incident would lead to her husband being arrested and spending almost two weeks in jail.

The couple — along with their 4-year-old son Shamar — were on their way to visit family when Florence was arrested for an outstanding warrant for an unpaid fine, even though he showed the trooper a receipt documenting that the fine had been paid in 2003.

Florence was charged with civil contempt and taken to Burlington County jail, even though failing to pay a fine is not a crime in New Jersey. Over the course of the next eight days, he was strip-searched twice before being released without charge.

In an interview with the New York Times in March, Florence, a finance executive for a car dealership, described standing in front of several guards and prisoners and being told to: “Squat and cough. Spread your cheeks.”

Florence told the Times that the experience “…was humiliating. It made me feel less than a man. It made me feel not better than an animal.”

Florence subsequently sued for violation of his Fourth Amendment right to not be subjected to unreasonable search and seizure.

While the federal judge who heard Florence’s case (Florence v. Board of Chosen Freeholders) agreed that his rights had been violated, the Third Circuit Court of Appeals reversed the ruling in early April in a 5-4 decision, saying that the need to maintain safety and security in jails was more important than the privacy of detainees.

The ruling will allow jail officials to strip-search people arrested for any offense, however minor, before admitting them to jail, even if the officials have no reason to suspect the presence of contraband. With approximately 13 million Americans spending time in jail or prison every year — including an estimated 700,000 people in jail for less serious misdemeanor offenses — the impact of the decision is far-reaching.

This decision runs counter to the recommendation from the American Correctional Association — the oldest and largest international correctional association in the world — which says that the use of strip-searches when there is cause for suspicion “best balances the need to safeguard jails with the need to protect the privacy and rights of the accused.”

Further, the court’s majority opinion, authored by Supreme Court Justice Anthony Kennedy, reinforces similar rulings in appeals courts in Atlanta, Ga., San Francisco, Calif. and Philadelphia, Pa., that supported searches no matter how minor the charge. Some bizarre charges for which strip-searches would be permitted include violating a leash law, having outstanding parking tickets and riding a bike without an audible bell.

The decision in Florence v. Board of Chosen Freeholders expands on the late William Rehnquist’s ruling on Bell v. Wolfish (1979), in which the court found that conducting body cavity searches of pre-trial detainees who had contact with visitors did not violate Fourth Amendment rights. The decision was controversial because it muddied the legal distinction between detainees awaiting trial (who still retain the presumption of innocence) and those who have been convicted.

Fortunately, the New York state constitution — along with 10 other states, including California, Florida and New Jersey — has a prohibition against unreasonable searches and seizures that has been firmly enforced statewide, even in prisons. To perform the type of search at issue in the Florence case, police would need a court warrant, which is only granted when there is a “reasonable suspicion” that “the arrestee secreted evidence inside a body cavity,” according to a 2009 New York Court of Appeals decision.

 

Ann Schneider is a member of the NYC Chapter of the National Lawyers Guild (nlgnyc.org). The opinions expressed in this article are those of the writer and do not necessarily reflect the position of the organization as a whole.