The Supreme Court struck down a complaint April 2 from a man subjected to invasive strip searches for an unpaid traffic fine.
But despite the setback from America’s highest judicial authority, his attorney said Wednesday that she may file a petition for a re-hearing. The battle, attorney Susan Chana Lask told The Daily Caller, is not over yet.
“This is about non-criminal offenders, and protecting their rights. It’s about the grandmother with the broken tail-light not getting pulled in and searched,” she said. “Even if it’s 10 percent, or just a thousand people a year, or 200 people — these people should not be treated inhumanely like that.”
“After this ruling, get ready to strip even if you have an unpaid traffic ticket,” Libertarian Party chairman Mark Hinkle said in a statement. “We are dismayed. This ruling sanctions new and unprecedented levels of invasion of privacy.”
“Never before did U.S. courts allow such an outrageous affront to human dignity with so little justification,” he added.
New Jersey State Troopers arrested Albert Florence for what their database showed was an unpaid fine in 2005. The police record turned out later to be erroneous, according to court documents.
Even though the warrant told police to take Florence to a magistrate, they took him to the Essex County Correctional Facility where they required two strip searches that included a “bend over, spread-your-cheeks, and cough” visual cavity inspection, and required him to manipulate his genitals, said Lask.
The Essex County officials responding to the case said in their brief that the police had little other choice.
“Newly admitted inmates do not have a legitimate expectation of privacy against strip searches or visual body-cavity searches upon entry into jail,” they wrote.
“ECCF is one of the most dangerous jails in New Jersey. Located in a large urban area with a high crime rate, ECCF tends to house more individuals charged with violent crimes or drug-related offenses than other county jails,” according to the brief.
Jailers already automatically strip-search felony offenders, said Lask. But she believes the law should require security personnel to treat other offenders according to evidence of reasonable suspicion. “They look at you, and if they see a bulge in your pocket, they pat you down.”
Monday’s Supreme Court decision specifically eliminated that requirement for evidence of reasonable suspicion, making any non-criminal offender eligible for a strip search, according to court documents.
Fingerprinting, computer profiling, pat-down searches, and multiple other security measures can occur before a strip search begins. Lask said she believes it makes sense to strip search inmates after contact visits.
“That’s more likely that someone can pass something to someone,” she said.
“But if you’re getting pulled in for a broken tail-light — this isn’t a crime, this is a debt collection — now they’re going to strip-search me because I forgot to pay my registration?”
According to Essex County officials, Florence’s original charge was fleeing police officers with a deadly weapon — a car.
The outcome of another major case at the time showed that New Jersey officers were engaging in illegal racial profiling, Lask explained.
Florence, then in his 20s, had panicked after a routine stop. The New Jersey court did not find him guilty of the fleeing charge, and instead imposed a fine for a non-criminal charge.
According to court documents, Florence paid the fine. But due to a computer glitch, the state’s records did not show his payment.
After police officers arrested him in front of his wife and son during a routine traffic stop, Florence spent seven days in jail, even though his pregnant wife carried proof that he had paid his fine.
“He was crying like a baby — which I would too,” said Lask. “But he was a young black guy, and they didn’t give a damn.”
Lask said she believes the Supreme Court decision results from a misunderstanding of several key details of the case.
“They compared his arrest to a criminal arrest,” she said. “I think they keep seeing this as a misdemeanor when it wasn’t.”
“Justice Roberts said there was no other alternative, referring to putting him in [the prison’s] ‘general population.’ There were lots of alternatives,” said Lask.
Writing for the dissenting justices, Justice Stephen G. Breyer said strip searches are “a serious affront to human dignity and to individual privacy.”
Justice Kennedy, who wrote for the 5-4 majority, argued that corrections officials “must have substantial discretion to devise reasonable solutions to the problems they face.”
He said the jailers needed discretion to perform strip searches to look for lice and prevent disease.
“That’s a nurse’s job,” countered Lask.
She said corrections officers did not go through hair looking for lice, and that the MRSA infection they supposedly needed to check for requires a swab sample sent to a lab, not a strip search.
The 5-justice majority held that court officials should trust the expertise and the training of the jailers, but Lask said the Supreme Court Justices should place more confidence in their own area of expertise: the Constitution.
“You’re the justices of the United States,” she said. “You have the expertise in constitutional law. The Constitution should not end at the jailhouse door.”