This coming Supreme Court Term, in the case of Florence v. Board of Chosen Freeholders, the Court will—for the first time since 1979—consider whether officials in a jail may strip search inmates in the absence of any individualized suspicion.
Beyond the opportunity to clarify the scope of the Court’s earlier precedent on this issue, Florence also presents the Justices with the chance to ask themselves an important question: Does the Constitution extend any protection for privacy to the people who reside in a detention facility?
The Facts of Florence
This case began when the plaintiffs, people who had been arrested and charged with non-indictable offenses, brought a class action lawsuit challenging a policy in two New Jersey detention facilities, under which all arrestees are strip-searched prior to entering the general population of the facility. The policy authorizes strip searches of every arrestee, no matter how minor the offense with which he has been charged.
In its majority opinion upholding the policy against a Fourth Amendment challenge, the U.S. Court of Appeals for the Third Circuit quoted the district court’s description of the searches in one facility: “[The policy] entails a complete disrobing, followed by an examination of the nude inmate . . . by the supervising officer, which is then followed by a supervised shower with a delousing agent.” Under a similar policy upheld by the U.S. Court of Appeals for the Eleventh Circuit, “[t]he booking process required groups of 30 to 40 arrestees to enter a large shower room, simultaneously remove all of their clothing, place it in boxes and then shower.”
Prior to the Third Circuit’s decision in Florence, federal courts of appeals had been reviewing similar “strip search prior to entry” policies for quite some time. Ten of the courts that confronted the blanket strip search policies initially ruled that, absent reasonable suspicion that an arrestee was concealing a weapon or other contraband, detainees charged with minor offenses had a Fourth Amendment privacy right to be free from such searches.
More recently, however, two of the ten courts—the U.S. Courts of Appeals for the Ninth and the Eleventh Circuits—overruled their earlier precedents and upheld the blanket strip search policies before them.
With eight Circuits on one side of the divide and now three on the other, the Supreme Court understood the issue to be ripe for review and granted certiorari in Florence.
The Current Law Regarding Strip Searches
To understand both the challenge to blanket strip searches and its differing resolutions in the various federal courts of appeals, consider the components of the plaintiffs’ legal claim. First, the plaintiffs contend that in protecting “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” the Fourth Amendment (as incorporated against the States by the Fourteenth Amendment) governs the individual’s interest in avoiding having to disrobe in front of the watchful eyes of a government official. Second, the plaintiffs assert that as a government action that triggers Fourth Amendment protection—a “search”—a strip search is “unreasonable,” and therefore unconstitutional, when performed on people who have been arrested for minor offenses without any specific reason for thinking that the search will turn up weapons, drugs, or other contraband.
The Supreme Court quite recently accepted the proposition not only that the Fourth Amendment applies to strip searches, but that it demands a greater justification from government officials for strip searches than it does for less intrusive searches. In Safford v. Redding, decided in 2009, the Court held that public school officials violated the Fourth Amendment rights of a 13-year-old girl when they searched her for ibuprofen; during the search, they forced her to undergo exposure of her private parts, without having any reason to imagine that she would have placed painkillers inside her bra or underpants.
Observing that a search of the girl’s backpack or outer clothing would have been lawful, given that school officials had reasonable suspicion that the girl had ibuprofen in her possession, the Court highlighted the special intrusiveness of a strip search, noting that “[b]oth subjective and reasonable societal expectations of personal privacy support the treatment of [a search exposing the subject’s breasts and pelvic area] as categorically distinct [from other less intrusive types of searches], [and thus] requiring distinct elements of justification.”
The Fourth Amendment Inside of a Jail
The Florence case poses a challenge for the plaintiffs because they were all about to enter the general population of a jail, and the Supreme Court has previously approved strip searches of detainees in the absence of individualized suspicion. In Bell v. Wolfish, the Supreme Court upheld a policy under which all detainees had to undergo a visual body-cavity search after every visit in which there was contact between the detainee and an outsider (making it a “contact visit”). The policy applied even in the absence of any reason to suspect that drugs or other contraband were concealed on an inmate’s body, and it applied regardless of why the inmate was in custody in the first place. This meant that detained people awaiting trial for minor offenses could not expect Fourth Amendment protection against an admittedly humiliating and highly intrusive experience.
In finding this policy to be valid, the Supreme Court determined that detention facilities have a special need for heightened security, and that the correct approach to evaluating Fourth Amendment rights in this context is, therefore, to balance the inmates’ privacy interest against the institution’s need for security.
In performing this balancing, the Court found that guards may carry out visual body-cavity searches without having to identify a reason to suspect a particular inmate who has just had a contact visit of concealing anything on his person, and without even having to even demonstrate that the jail’s inmates as a group use contact visits as an occasion for smuggling contraband into the institution. The Court, moreover, did not require so much as a showing by prison officials that the search policy had had or likely would have the effect of mitigating the smuggling problem experienced by the jail.
Stated differently, one fact alone was essentially enough to overcome the privacy interest of non-convicted inmates charged with minor offenses in avoiding having to endure strip searches after every contact visit: Jail officials thought that the strip search policy might help reduce the smuggling of weapons, drugs, and other contraband into the jail.
An Argument for Distinguishing Florence from the Governing Precedent
To be sure, the blanket strip search policy at issue in Florence is not identical to the policy the Court upheld in Bell v. Wolfish. A court could distinguish the two cases and find for the plaintiffs in Florence, notwithstanding the Supreme Court’s earlier precedent.
In Bell, for example, the detainees in question could, in theory, have planned to smuggle in contraband during a contact visit, because visits are typically anticipated events for which visitors and visited might jointly prepare. In Florence, by contrast, a person arrested for a non-indictable, minor offense, such as – and here, I am using offenses taken from actual plaintiffs’ cases – violating a traffic ordinance or walking a dog without a leash, is almost certainly not expecting to find himself in a detention facility.
Only the very unusual person would wake up and think “I am going to walk my dog now. I intend to let her off the leash when we get to the park. Realizing that this behavior could get me arrested, I will conceal a plastic bag of heroin in my underpants. That way, if I am arrested, I will have the opportunity to use or sell drugs while I am in jail.”
Another difference between Bell and Florence is that in Bell, a person who would find a visual body-cavity search especially traumatic could perhaps choose to forgo all contact visits and thereby avoid the accompanying searches as well. In Florence, though, a similarly vulnerable person would have no way of avoiding strip searches. Though the inmate’s options were limited in Bell, they are non-existent in Florence.
As a matter of both the alleged need for the strip search and the deprivation of autonomy and privacy involved, then, one might argue that blanket strip search policies are unreasonable, even under the relatively toothless standard of reasonableness announced in Bell v. Wolfish.
An Argument Against Distinguishing Florence From the Governing Precedent
On the question of how to most faithfully interpret Supreme Court precedent, however, I cannot fault the Third Circuit or the other courts that fall into the same camp, for reading Bell to approve just about any policy authorizing routine strip searches of people in a detention facility, no matter how farfetched the belief that the policy would in any way reduce the number of weapons, drugs, or other contraband in the facility.
As the Third Circuit reasoned in Florence, “the opportunity for smuggling during the contact visits in Bell was low. As described by the district court in that case, ‘inmates and their visitors are in full view during the visits and fully clad. The secreting of objects in rectal or genital areas becomes in this situation an imposing challenge to nerves and agility.’” Yet the Supreme Court in Bell still approved the policy of post-contact-visit visual body-cavity searches.
As to the intrusiveness of the respective searches, the Court in Bell upheld a policy of visual body-cavity inspections, an additional indignity beyond the simple strip searches before the Court in Florence.
In short, I do not find it shocking to learn that judges acting in good faith, and following precedent conscientiously, as they are bound to do, viewed the policy in Florence as falling squarely within the allowance for strip searches outlined in Bell. I do, however, find Bell itself quite disturbing, and as the U.S. Supreme Court has the authority not only to distinguish Florence from Bell, as a majority of panels on the federal appellate bench have seen fit to do, but to overrule Bell entirely, I hope that it will use that authority this Term.
Why Overrule Bell?
Do I deny that prisons and jails are dangerous places filled with weapons, drugs, and other contraband? Of course not. But the existence of a serious security issue does not logically support total deference to whatever policies prison officials dream up, however harmful to inmates, without regard to the actual efficacy of the policies, or the availability of less intrusive ways of addressing the underlying problems.
Prison and jail officials have an exceedingly difficult and dangerous job and are rightly entitled to some degree of flexibility in their efforts to find ways of protecting the security of the institutions that they run. Strip searches, though, are extremely intrusive, humiliating, and frequently traumatic experiences, as the Supreme Court has already acknowledged. The government must accordingly shoulder some burden of justifying resort to strip searches used indiscriminately on the entire population of detainees.
Even in the Supreme Court building itself, where the need for security is great and the threat from unbalanced individuals substantial, guards do not strip search everyone who comes to watch oral arguments. The plaintiffs in Florence, however, are not very different from the crowds that gather to hear oral arguments in the Highest Court of the Land. They are people who may occasionally drive over the speed limit, walk their dogs without a leash, or miss a child-support payment from time to time. They should not have to undergo a strip search just because they had the misfortune of being arrested and taken to jail for what so many others have also done.
Granted, “[a] prison is not a summer camp,” as an earlier Third Circuit precedent said, but detention facilities should also not be places where everyone must wholly relinquish at the gate his entitlement to even the most basic privacy and dignity. The Court now has the chance to say this explicitly, by ruling that the Fourth Amendment protects from blanket strip searches those people who find themselves arrested for a minor offense and taken to jail.
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