The Fourth Amendment in Fascist America

And if you think my use of the term fascist is a bit strong; read on.

How a mere "procedural" decision blatantly shortchanges justice
Herman Schwartz
August 20, 2012

This past April, the five conservative Supreme Court Justices gave jail officials the right to strip and search every person arrested and jailed, even if the alleged offense is trivial and there is no reason to suspect danger of any kind. The ruling, in Florence v. Board of Chosen Freeholders of County of Burlington, compounds the assault on human dignity committed by the Court in another 5-4 decision eleven years ago, in Atwater v. City of Lago Vista, when it authorized a full custodial arrest for even trivial “fine-only” offenses like a temporarily unbuckled seat belt. Our right to be free from unreasonable searches and seizures has once again been undermined by a narrow conservative majority concerned more with protecting public officials than with the rights of ordinary Americans.




Florence grew out of a mistake. On March 3, 2005, Albert Florence, an African-American businessman, his pregnant wife and their 4-year-old son, were in the family BMW, when a New Jersey state trooper pulled them over. Florence’s wife was driving; no reason for the stop appears in the record and no citation was ever issued. The trooper ordered Florence, the owner, out of the car. A computer check disclosed that an arrest warrant for civil contempt had once been issued against him for nonpayment of a fine but failed to note that the fine had been paid and the warrant withdrawn.




Florence had been stopped several times before, which he attributed to his being an African-American driving an expensive car. He therefore carried a certificate attesting to the cancellation of the warrant, which he showed to the trooper. Nevertheless, he was handcuffed, arrested and taken to the Burlington County jail. The jail authorities conceded that they had no suspicion of any wrongdoing by Florence apart from the fine. Yet he was still forced to strip, shower with a delousing agent, open his mouth for inspection, hold out his arms and lift his genitals, and turn around so the officer could examine his buttocks.




After six days without appearing before a magistrate as required by law, Florence was transferred to the Essex County jail. There he was again strip-searched, again without any indication that he had done anything wrong, only this time he was required to squat and cough, and to undergo close examination of his ears, nose, mouth, scalp, armpits, inner thighs and other parts of his body. The next day Florence was brought before a judge who, “appalled” at his treatment, ordered his immediate release. Florence sued the two counties and was joined in a class-action by others subjected to the same treatment.

What happened to him could happen to anyone. Had the mother of three at the center of Atwater—who was handcuffed and jailed after she and her children were found to have unbuckled their seatbelts temporarily—been arrested today, she could have also been subjected to a strip search. This is because state penal and traffic codes are stuffed with a vast array of such minor and often trivial offenses for which an arrest can be made wholly at the discretion of police. Among those who joined the class-action lawsuit filed by Florence were people who had been charged with having a noisy muffler, an inoperable headlight, a bald tire, high beams on and a faulty windshield wiper. Others were charged with ignoring a stop sign, improperly backing up, crossing a double line, and parking in a no-parking zone, and two were charged with improperly riding a bicycle and riding without an audible bell. All were stripped and searched.




In DC, the lawsuit notes, a 12-year-old girl was arrested for eating a French fry in Metro station and a driver was arrested for “false pretenses” after backing out of a parking garage. In Kentucky, a woman was charged for failing to appear in traffic court when the judge provided her with the wrong appearance date.

People of color, like Florence, are especially vulnerable to such police tactics, for in many cases, the arrests and subsequent searches are really for the “offenses” of Driving While Black, being in the wrong neighborhood, or talking back to the police. Political protesters like the civil rights workers who marched in the South and the Occupy Wall Street demonstrators, especially protesters and demonstrators in hostile settings, are also vulnerable to the abuses made possible by the Florence and Atwater decisions.




The Supreme Court justified both the Atwater and Florence decisions with the argument that police and jail officials need a “bright-line” rule so as not to be subject to personal liability for making an unnecessary arrest or search and not to be discouraged from taking such action when they should. But a bright-line rule for both such situations is readily available: Police should not be authorized to arrest or search someone for a minor fine-only violation except in extraordinary circumstances. The police are in no danger of personal liability if they make a good-faith mistake, because they are entitled to immunity for such mistakes.




No one can dispute a federal appellate court’s characterization of a strip search as “demeaning, dehumanizing, undignified, humiliating, terrifying, unpleasant, embarrassing, [and] repulsive, signifying degradation and submission.” Even the Supreme Court has said that a search that intrusive “demand[s] its own specific suspicions.” The shock and humiliation suffered by persons subjected to such arrests and searches is aggravated by the fact that they are almost always ordinary citizens who have never been in jail before. In one case a Chicago woman doctor who had been strip-searched afterward suffered paranoia, suicidal feelings and depression and would not undress anywhere but in a closet

The conservative majority in Florence stressed that jails are dangerous places, and therefore the actions of jail officials are entitled to judicial deference. Jails are dangerous—and drug smuggling is indeed a problem. But people like Florence don’t pose a threat, which is why the Federal Bureau of Prisons, the US Marshals Service and the Bureau of Indian Affairs all forbid strip searches of minor offenders except upon reasonable suspicion. Similarly, standards defined by the American Correctional Association—the accrediting body for adult correctional facilities—require a reasonable belief or suspicion of contraband for a strip search.




The Fourth Amendment was designed to stand between us and arbitrary governmental authority. For all practical purposes, that shield has been shattered, leaving our liberty and personal integrity subject to the whim of every cop on the beat, trooper on the highway and jail official. The framers would be appalled. The Nation

Story