Get naked

Strip. Bend. Spread. Cough. That is what five of nine Supreme Court justices — themselves swathed in so many layers of robes and clothes to be almost indistinguishable from one another — have just told the American people. Watch out. If you’re suspected of any crime, you may be arrested, processed and strip searched — a severe and invasive form of punishment meted out all before being found guilty.

Any crime. Making a left hand turn without your turn signal. Pooping without scooping. Demonstrating without a permit. Walking a leashless dog.

Before making this judgment, the Supreme Court heard an epic tale of justice failing. One minute in 2005, Albert Florence was sitting in the passenger seat of the family BMW, his pregnant wife behind the wheel and his four-year-old son tucked in his car seat in the back. The next minute, he was off on an eight-day odyssey that included two strip searches. All of it was the result of a computer error.

They were pulled over for speeding — although no ticket was ever doled out. Mr. Florence and his wife’s licenses were taken, and a search turned up an outstanding warrant based on an unpaid fine. It was not one of those “take him at any cost” kind of warrants. It was a “make sure he sees a magistrate” warrant. In fact, failure to pay a fine in New Jersey is a non-indictable offense. It turns out that the fine had been paid, and Mr. Florence, the finance executive at a car dealership, just so happened to carry the proof of payment (from 2003) with him at all times. He was prepared, as a young African-American man with a nice car, to be pulled over by police.

Nonetheless, he was removed from the car, put under arrest and taken to jail — all in front of his wife and small child.

That was just the beginning of his humiliation. He was first sent to Burlington County jail where he spent almost a week, and then to Essex Count jail — eight days and two strip searches —before a judge finally ordered him released without charge. “Turn around,” jail officials told Mr. Florence. “Squat and cough. Spread your cheeks.” He told The New York Times in a March 2011 interview, “I consider myself a man’s man. Six-three. Big guy. It was humiliating. It made me feel less than a man. It made me feel not better than an animal.”

As the case of Trayvon Martin’s extrajudicial execution lingers unresolved and unprosecuted, and police stop and frisk and racial profiling policies become routine, one has to wonder if a white couple would have been treated in the same manner under similar circumstances.

Florence did what any aggrieved and righteous citizen has the right to do. He sued the Burlington and Essex jails for violating his Fourth Amendment rights to privacy without suspicion that he was concealing weapons or contraband. And he was vindicated. A federal judge sided with him, along with others in similar circumstances. But, then, the Third Circuit Court of Appeals reversed saying that “the jails’ interest in safety and security outweighed the privacy interests of detainees — even those accused of minor crimes. Judges must defer to the policy judgments of jail officials, the appeals court added.”

Florence’s lawyer rejoined that this made zero sense — unless Albert Florence was a devious Houdini-in-reverse, trying to get himself arrested so that he could get into jail with contraband that he could then sell or trade. But, the majority of the Supreme Court Justices said that they could not “second-guess the judgments of correctional officials who must consider not only the possibility of smuggled weapons and drugs, but also public health and information about gang affiliations.” Information, that is, gleaned through strip searches once people are processed in jail.

Justice Anthony Kennedy wrote that “every detainee who will be admitted to the general population may be required to undergo a close visual inspection while undressed.” He added that about 13 million people are admitted each year to the nation’s jails. That 13 million figure is worth its own blog post!

The American Civil Liberties Union disagrees. Legal director Stephen Shapiro comments that the decision “jeopardizes the privacy rights of millions of people who are arrested each year and brought to jail, often for minor offenses. Being forced to strip naked is a humiliating experience that no one should have to endure absent reasonable suspicion.”

The American Bar Association filed an amicus brief stating that “a strip search of detainees like Mr. Florence upon admission to a prison, without some other individualized reasonable suspicion, is not justified by security concerns and is therefore inconsistent with the respect for the human dignity of prisoners to which the ABA is deeply committed.” Their standard, which references the Universal Declaration of Human Rights and the International Convention on Civil and Political Rights, asserts that “no prisoners should be subjected to cruel, inhuman or degrading treatment or conditions.”

The ABA went one step further, reminding Kennedy — the “swing vote” justice in this case — of his 2003 speech to the ABA where he remarked that “a purpose to degrade or demean individuals is not acceptable in a society founded on respect for the inalienable rights of the people.” Maybe they should have put that quote in bold face type, because Kennedy missed the message.

An activist friend of mine who is now in law school responded to this ruling by writing that everyone wanting to pass the bar or sit on the bench should be required to spend at least one night in jail. That makes a lot of sense to me.

Before being able to sit in judgment or dole out jail sentences or “represent” a client, prospective judges and lawyers and prosecutors should have to surrender all freedom and privacy, eat a baloney sandwich on white bread (and be hungry enough to be just a little grateful for it), drink bug juice (and be thirsty or bored enough to enjoy it just a little), figure out how to use the toilet in a holding room with thirty other people (without touching the seat or the aid of toilet paper), realize that people only get a phone call on TV, and be known just by a number.

I have been arrested a number of times and held overnight. While I have never been strip searched, I can tell you that even the over-clothing pat downs can be pretty invasive. I have one bony rib that protrudes at a funny angle, and I am always made to explain — sometimes at great length — that it is under my skin and will not harm anyone.

How all of this will sort itself out remains to be seen. A handful of states maintain that strip searches after arrest for minor infractions is an overreach. They are not affected by the Supreme Court ruling. So, if you are going to get arrested and don’t want to get naked — do it in Kentucky, Kansas, Missouri, Iowa, Washington, New Jersey, Illinois, Tennessee, Florida or Colorado, according to the ACLU.

In the meantime, activists are beginning to think about how to counter and undermine the ruling. Occupy folks are talking about group showers before actions to get preemptively clean for the police. One entrepreneurial activist is considering a line of underwear with messages directed at the police performing strip searches. Put your own thinking cap on. There is room for loads more creativity here. This ruling cries out for unabashed mockery and bold resistance.