Hands Off! High Court Looks At Routine Strip Searches In Jail

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WASHINGTON — Six and a half years after a family outing turned into a weeklong nightmare behind bars, Albert Florence is getting a Supreme Court hearing on his claim that authorities violated his constitutional rights when they twice made him submit to strip searches in jail.

The justices were to hear arguments Wednesday in a case they could use to rule on whether jails may routinely strip search people who have been arrested, no matter the reason.

Florence, 36, was arrested based on a warrant for a traffic fine he already had paid. But even if the warrant had been valid, Florence said he should not have been treated like someone who could be hiding a weapon or drugs.

He plans to be in the courtroom for the arguments, taking time off from his job as finance manager at a New Jersey car dealership.

“It’s important not only for my own personal reasons, but for a million-plus reasons,” Florence said in an interview. “It’s a huge case in terms of civil rights, to not have your privacy invaded.”

On the other side, the jails, backed by the Obama administration, say people in jail have little, if any, expectation of privacy. The searches promote safety and protect inmates and guards, the jails said. The Essex County jail, one of the two facilities where Florence was forced to undress and shower in front of guards, calls itself “one of the most dangerous jails in New Jersey.”

Federal appeals courts have been split over the propriety of routine strip searches in jails, although recent decisions have tended to uphold the searches.

Florence described the mounting helplessness he felt when a state trooper stopped the family’s BMW sport utility vehicle on a New Jersey highway in March 2005. His wife, April, was seven months pregnant with their second child and driving. Their 4-year-old son was in the back seat.

Florence identified himself as the vehicle’s owner and the trooper, checking records, found an outstanding warrant for an unpaid fine. Florence, who is African-American, had been stopped several times before, and he carried a letter to the effect that the fine, for fleeing a traffic stop several years earlier, had been paid.

His protest was in vain, however, and the trooper handcuffed him and hauled him off to jail. At the time, the State Police were operating under a court order, spawned by allegations of past racial discrimination, that provided federal monitors to assess state police stops of minority drivers. But the propriety of the stop is not at issue, and Florence is not alleging racial discrimination.

The family had been heading to Florence’s mother-in-law’s house for a dinner to celebrate their purchase of a home. Instead, Florence was headed to jail. Though he hadn’t cried since he was a child, “I cried that night,” Florence said.

The first strip search took place in the Burlington County Jail in southern New Jersey. Six days later, Florence had not received a hearing and remained in custody. Transferred to the Essex County jail in Newark, he was strip-searched again.

The next day a judge freed Florence and dismissed all charges. The fine had been paid, as Florence had insisted.

The case could turn on the court’s reading of its own decision in 1979 that upheld a blanket policy of conducting body cavity searches of prisoners who had had contact with visitors. The court’s reasoning then was that the interaction with outsiders created the possibility that some prisoners got hold of something they shouldn’t have.

But that ruling depended on suspicion, while the searches of Florence did not.

Florence said he would have understood the need for him to undress and then expose parts of his body for a close look if he had been arrested on charges of committing a violent crime.

But failing to pay a fine is not a crime in New Jersey. Searching people who have not paid fines or who are picked up for similar, non-violent reasons “cannot be condoned and they cannot be justified,” Florence said.

Five former New Jersey attorneys general, a group of current and former jail officials and groups that advocate for victims of domestic violence argued that the one-size-fits-all search policy is unnecessary to make jails safer, and that it is humiliating.

A dozen states, law enforcement and government groups argue that a uniform strip search policy is reasonable under the Constitution.

Florence’s lawsuit also raised claims of false arrest and imprisonment and racial discrimination while in jail. Those claims are on hold pending the high court’s decision, which should come by spring.

The case is Florence v. Board of Chosen Freeholders, 10-945.

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