The Supreme Court's Giant Step toward A Police State

[cali]

I've long said we're not a police state.... yet. I think I need to join the ranks of those of you who believe we are. And to those of you who don't think we're there yet, let me stipulate that I know that I'm not going to be plucked from my home and tortured because of what I write here. BUT, should I be stopped in a routine traffic stop and should I have some minor non-criminal outstanding warrant, or should my taillight be out, I can, unless the State prohibits it or unless there is an institutional regulation banning it, be stripped search in the most intrusive way. Of course that could happen and did happen to many before the court came down with its atrocious decision, but they've put the imprimatur of constitutionality on unreasonable searches of the worst kind.

It goes beyond that. It's a license to gag dissenters. Yes, gag them. Want to thin the ranks of war protesters practicing civil disobedience? Hey, great tool for that. Sure it's been used that way before but now there are no worries about being sued. Want to humiliate an "uppity" (or not) minority? Cool. Or a woman? Want to do it just for kicks? Not so much of a problem.

The usual 4 and wavering Tony, actually sided with Jailers over the American People. They didn't want to "second guess" the jailers.

Outfuckingrageous.

Scary as hell.

In a devastating 5-4 ruling that not only condones an overreach of state power but legitimizes what is essentially state-sponsored humiliation and visual rape, the U.S. Supreme Court recently declared that any person who is arrested and processed at a jail house, regardless of the severity of his or her offense (i.e., they can be guilty of nothing more than a minor traffic offense), can be subjected to a strip search by police or jail officials without reasonable suspicion that the arrestee is carrying a weapon or contraband. The five-man majority rationalized their ruling as being necessary for safety, security and efficiency, the government's overused and all-too-convenient justifications for its steady erosion of our freedoms since 9/11.

This ruling stems from the case of Albert Florence who was erroneously arrested for failing to pay a traffic fine and forced to submit to two egregious strip and visual body-cavity searches at two different county jails. Ironically enough, the supposed crime for which Albert Florence was arrested (having an unpaid traffic fine) is not a criminal offense in New Jersey, while being strip searched for something other than a crime is a criminal offense. Florence, an African-American man in his mid-thirties, was on his way to Sunday dinner in 2005 with his then-pregnant wife and 4-year-old son when they were stopped by a New Jersey State Police trooper. Florence's wife was driving. However, after showing his ID, Florence found himself handcuffed, arrested and taken to jail. After spending six days in jail, Florence was finally able to prove his innocence.

Outraged, Florence sued the jail officials who had needlessly degraded his bodily integrity. A federal appeals court sanctioned the blanket strip search policy, which was then affirmed by the U.S. Supreme Court. In a nutshell, what Justice Anthony M. Kennedy, writing for the majority, concluded was that it is impractical -- "unworkable" was the phrase used -- to expect overworked jail officials to have to take the time to distinguish between harmless individuals guilty of nothing more than driving without a seatbelt and those who pose a true threat and may be reasonably suspected of carrying drugs or weapons.

Of course, the Constitution insists that a workable solution must be found -- one that squares with the Bill of Rights. But in an age when the courts show greater deference to bureaucracy than democracy, making life easier for harried jailers trumps the Constitution. Consequently, any person who is arrested, no matter how minor the alleged criminal act, can now be subjected to a degrading strip search. Examples of minor violations which could now lead to a strip search are many and include "violating a leash law, driving without a license and failing to pay child support."

<snip>

http://www.huffingtonpost.com/john-w-whitehead/supreme-court-strip-searches_b_1401063.html

[Luminous Animal]

1. And the DOJ supported this ruling...

http://www.salon.com/2012/04/03/the_obama_doj_and_strip_searches/singleton/

Numerous progressive commentators are lambasting the Supreme Court for its 5-4 ruling yesterday in Florence v. Bd. of Chosen Freeholders, and rightfully so. The 5-judge conservative faction held that prison officials may strip-search anyone arrested even for the most minor offenses before admitting them to the general population of a jail or prison, even in the absence of a shred of suspicion that they are carrying weapons or contraband. The plaintiff in this case had been erroneously arrested for outstanding bench warrants for an unpaid fine that he had actually paid, and was twice subjected to forced strip searches; he sued, claiming a violation of his Fourth and Fourteenth Amendment rights. In essence, the Florence ruling grants prison officials license to subject every single arrested individual entering the general prison population to humiliating and highly invasive strip searches (that’s 13 million people every year, with hugely disproportionately minority representation), based on the definitive police state mentality — one that has been applied over and over — that isolated risks justify the most sweeping security measures. This policy has been applied to those arrested for offenses such as dog leash laws, peaceful protests, and driving with an expired license.

What virtually none of this anti-Florence commentary mentioned, though, was that the Obama DOJ formally urged the Court to reach the conclusion it reached. While the Obama administration and court conservatives have been at odds in a handful of high-profile cases (most notably Citizens United and the health care law), this is yet another case, in a long line, where the Obama administration was able to have its preferred policies judicially endorsed by getting right-wing judges to embrace them:

[woo me with science]

7. Horrifying. The drive toward fascism is bipartisan now,

and, really, that is the key to its success. We see it in all types of Bush-like fascistic policies that have survived into the Obama administration and are now being defended by corporate Democrats...NDAA, warrantless surveillance, spy centers, you name it. As long as people remain so blindly partisan that they will refuse to stand against what is clearly wrong just because it comes from their own party, we will never have a unified opposition to oppression.

The corporate elite in both parties have figured that out and use it to their advantage. We will see how long it takes the people to figure it out.

[elleng]

2. Please note

Linda Greenhouse sees rifts within the Court. We can become hysterical, or we can study carefully.

'Among this edgy majority, one voice was missing: that of Justice Clarence Thomas. “Justice Thomas joins all but Part IV of this opinion,” a footnote on the first page informs us. But Justice Thomas couldn’t be bothered to explain himself, at least not in public. Presumably he shared his thoughts at some point with his colleagues. We’re left to infer that what he wanted was a bright-line rule that would admit no exceptions, no circumstance under which a strip search might be so uncalled-for as to violate the Fourth Amendment’s prohibition of unreasonable searches.

Was this a position that Justice Thomas wanted to maintain without having to defend it in writing? Earlier in his tenure, he wasn’t shy about advocating extreme positions, such as his dissenting opinion in a 1992 case, Hudson v. McMillian, on whether inmates have a constitutional right not to be beaten by prison guards. The majority held that the Eighth Amendment’s prohibition on cruel and unusual punishment could apply regardless of the severity of any resulting injury. Justice Thomas said the Eighth Amendment protected inmates against only “serious injury” at the hands of their jailers, not against “a use of force that causes only insignificant harm.”

By refusing on Monday to sign Justice Kennedy’s part four, Justice Thomas deprived his colleague of a majority for the full range of his opinion, and without explanation. This was a wildly uncollegial act, violating the court’s norm that votes come with reasons. I suspect that the court’s center of gravity in this case, if not the actual opinion assignment, seesawed during the months of consideration. Of course, I don’t know whether Justice Kennedy wrote his part four as the price of retaining the support of Chief Justice Roberts and Justice Alito. Might one or both have otherwise joined Justice Stephen G. Breyer’s powerful dissenting opinion and thus flipped the outcome? Or did Justice Breyer start out with a majority that he then lost as Justice Kennedy offered a softer version of an initial position?

All as tantalizing as it is unknowable. The larger point – the relevance to the health care case – is that there are obviously tensions and even rifts within the Supreme Court that don’t map readily onto the one-dimensional 5-to-4 narrative.'

http://opinionator.blogs.nytimes.com/2012/04/04/embarrass-the-future/?hp

[cali]

4. Interesting but

frankly I don't think that changes things one whit. And furthermore, I do believe- absolutely- that things do break down to a bright and clear 4-4 narrative- "one dimensional" as that may be.

And there are a lot of very smart constitutional authorities saying that this decision is very bad indeed.

[elleng]

9. I agree the result is bad,

but I think its very important that we understand the process, the nuance, and the evolving relations among the justices.

[es35]

17. Has the Supreme Court just handed us the election?

In my wishful thinking I can see:

Mitt supports cops to strip search your daughters

by some enterprising Democratic partisans in the coming presidential campaign.

Hey, sometimes you have to fight fire with fire.

[FedUp_Queer]

19. Except the Obama justice department argued in favor of this ruling.

[indepat]

3. The felonious five have acted in a treasonous conspiracy against the letter of the Constitution

the intent of the framers imo in numerous 5-4 decisions. Refutation invited, so set me straight.

[crazyjoe]

5. nobody is put in jail for a "minor traffic offense". everyone who is put in jail

is subject to search, along with the loss of their freedom. I support this decision, as does the Obama admin.

[Myrina]

10. I'd like to know where you live ...

... because where I live, we see it on the news all the time ... "pulled over for a minor traffic offense" (no turn signal, tail light out, driving while black after 8pm or in the wrong neighborhood) ends up with 'oh he resisted arrest' or 'was threatening the officer' so they 'had to take him into custody' which many times results in 'accidental death in the back of the police car'.

This decision is just another excuse for cops to be thugs and disregard the 'serve and protect' part of their oath.

You can't seriously tell me, in this day and age of literally INSTANT data, that they can't determine whether or not someone they've pulled over has an outstanding warrant, is a wanted serial killer or WTF-ever.

[crazyjoe]

13. great, so you should be able to link to a story where someone was jailed for a minor traffic offense

where do you live? cuba?

[Uncle Joe]

16. You mean like this one?

http://rn-t.com/view/full_story/3449682/article-Immigration-law-cited-as-Canadian-jailed-over-minor-traffic-violation---Georgia-New


"Authorities in South Georgia forced a Canadian tourist to strip naked, shower and spend what she called a harrowing night in jail last weekend for minor traffic violations.

The treatment of Cheryl Kuehn, a graduate student from Ottawa, has sparked outrage in Canada and investigations in Georgia. And Friday, immigrant advocates said it raises new questions about how local authorities are interpreting Georgia's sweeping new immigration law.

Kuehn, 23, was driving to Florida to visit in-laws Saturday when a Georgia state trooper pulled her over in Brunswick for speeding and running a stop sign. The trooper took Kuehn to the local jail to post a cash bond, as is customary for ticketed motorists with a foreign driver's license.

But Kuehn, who was traveling with her husband and two others, ended up spending more than 11 hours at the Glynn County Jail while authorities ran an immigration check on her."

[crazyjoe]

25. she was detained while they ran some ridiculous immagration check,

not for the driving offense.
Do you not read well?

[Uncle Joe]

28. I believe you meant ridiculous, "immigration" check.

If detaining someone for a "ridiculous" immigration check is possible it doesn't take a great leap of logic to know the same can be done for a traffic offense.

All it takes is corruptive/lustful law enforcement and attractive enough drivers.

Charges or excuses are easy enough to trump up.

[crazyjoe]

29. thanks for correcting my spelling, you must be fun at parties.

so now we go from "people are being arrested for minor traffic offenses and strip searched" to, if you can be detained for immigration checks, you could be detained and strip searched for minor traffic offenses.

I ran the spell check this time

[Uncle Joe]

30. You're welcome and you're correct, I am fun at parties.

Your own previous post stated the ridiculousness of the immigration check, an adjective you seemed to have dropped on this post.

Peace to you.

[cali]

12. it's clear you are not even passingly familiar with the case

or with the numerous cases of people thrown in jail for minor traffic offenses that Justice Breyer cited. I wish people who know absolutely nothing about a given subject wouldn't mouth off.

For your elucidation, crazyjoe.

Mr. Florence was in the car with his pregnant wife and young son. He was not driving. During a routine traffic stop the officer discovered there was an outstanding warrant to bring Mr. Florence to a Magistrate on the matter of an unpaid court fine. The officer cuffed Mr. Florence and took him to jail where he spent 7 days and was strip searched twice. As it turned out, Mr. Florence had paid the fine and even had the receipt with him and showed it to the authorities.

Oh, this is all readily available material, crazyjoe.

http://en.wikipedia.org/wiki/Florence_v._County_of_Burlington

[Johonny]

24. +1

the subject of the case was not guilty of any offense at all. That's why I believe they chose the case to bring to the court. How can a person not guilty of anything be deny certain constitutional rights? As it turns out the court did not agree because these Justices think so little of the average American. Prisons and strip searches and fear of the police and the prison system is how they think we should live. Fear of reality will keep us in line. Certainly none of those 5 judges will ever have to face such humiliation. We truly live in a world with the new self proclaim aristocracy

[crazyjoe]

26. haha, really??

for your elucidation cali, he was arrested on an outstanding warrant, not for a traffic violation.

A warrant - you get arrested.

minor traffic violation - you get a ticket.

I would say nice try, but it wasn't even close.

[robbob]

18. Including the 77 year old nun

...who was strip searched after being picked up in an anti-war demonstration? Or the person who was picked up for riding a bike without an audible bell?

<on edit> both of these cases are cited in the SC arguments.

[woo me with science]

21. People are arrested for protesting.

Think of all the people trapped on that bridge. Imagine going to an Occupy protest and being strip searched by your own government for trying to make your voice heard.

[just1voice]

22. So saying "bend over and squat, move your genitals and cough" to protesters...

is A-OK with you.

And people wonder how Nazi Germany came to be.

[crazyjoe]

27. yes, it is ok with me. If you go to jail, they search you. It's for everyones protection.

Nobody is physically harmed by being searched, if i was sitting in jail I'd prefer that the guy next to me doesn't get agitated and shank me with the weapon the cops didn't find because he was only there for a minor offense. (protesting for example)
Just because you were protesting, that doesn't mean you don't have mental issues. Or do you suggest they only search people who "look dangerous"?

[maxrandb]

6. Here is the situation we face in a nutshell

Conservatives are fine with strip searches for spitting on the sidewalk, but requiring someone to have insurance so others don't have to bear the burden of their health care cost is "unconstitutional".

Remind me again who it is that is "fundamentally changing the relationship between the citizen and the government"?

[maxrandb]

8. Asked to comment on this, Jusitce Thomas said;

[bongbong]

14. Really?

I thought he said, "You know I always sleep during oral arguments. Wake me up when I can look at my beloved Internet pron."

[Uncle Joe]

11. This is the natural and logical progression to be expected from the continuous assault

against the Bill of Rights first by the so called "War on Drugs" and now the "War on Terror."

Body integrity is all but gone in deference to the almighty authoritarian police state and so long as those two "wars" listed above are taking place, the dynamic behind the erosion of privacy and human rights here in the "land of the free and home of the brave" will not cease but actually escalate in intensity and scope.

Thanks for the thread, cali.

[es35]

15. Time to go back and reread the German newspapers of the 1930s

If anyone has access to these papers and is fluent in German, it would be very interesting to read the complaints about the Nazi's from the liberal democrats and socialists just before Dachau opened up in 1933, where many of these spent their final days.

There might be some very interesting parallels or even identities of the things said about the Nazis then and the right wing religious GOP/Tea Parties now.

[Live and Learn]

20. I am certain that some of those in power have studied the Nazi regime

propaganda techniques thoroughly and are putting them to good use in the present time.

[sudopod]

23. kick nt