“Unreasonable Search And Seizure”: Supreme Court Undercuts 4th Amendment Protections-Again
In yet another 5-4 decision of the Supreme Court, the conservatives sitting on the Roberts Court have cut deeply into our protection from unreasonable search and seizure guaranteed to Americans by the 4th Amendment to the Constitution.
As a result of today’s ruling, jailers can now perform bodily strip searches on anyone brought in to a holding cell, no matter how minor the alleged infraction. And when I say ‘minor’, I’m not talking about people arrested and held for violent or even misdemeanor drug related crimes.
I’m talking about individuals arrested for riding a bicycle without an audible bell, driving a car with a noisy muffler or failing to properly use a signal when making a left or right turn.
Seriously.
These are but a few of the offenses that were committed by people who found themselves being strip-searched and subject to the long arm of the law when that long arm intruded into personal spaces where no arm was intended to go. These were also the offenses represented in a class action brought against two New Jersey jails by Albert Florence, a New Jersey resident who was also subjected to the humiliation of a strip search—twice— for what the police believed was an outstanding warrant for failing to pay a court fine.
Florence’s ordeal began on a day in 2005 while he and his family were on his way to his mother-in-law’s home to celebrate the purchase of a new residence for the Florence family. Mrs. Florence was at the wheel of the family BMW when she was pulled over for speeding. When the police officer ran a check on Mr. Florence as the owner of the car (despite the fact that he wasn’t driving), they discovered that he had an outstanding warrant for failing to pay a fine to the Court.
Never mind that Mr. Florence, a financial executive with an automobile dealership, had, in fact, paid the fine and actually had proof of having done so in the glove box of his automobile because he feared that local police were suspicious of black men who drive nice cars. And never mind that even if the warrant had been an outstanding bench order, not paying a court fine in New Jersey is not a crime.
Florence was arrested and handcuffed as his pregnant wife and young son watched in distress.
When Mr. Florence arrived at the local jail where he was to be held pending a hearing on the warrant, he was subjected to a strip-search. And when he was transferred to a different county jail he was treated to a search of his body once again, despite the fact that, at no time since his first strip-search, was he outside the custody of the police.
During his first strip-search, Florence was forced to disrobe in front of an officer and told to lift his genitals. Upon arriving at the second jail, he was made to squat and cough in front of a number of viewers for the purpose of expelling anything that might be hidden in a body cavity.
Setting aside my curiosity as to what the cops expected to find hiding beneath his genitals, I will simply report that the local Magistrate finally ordered Mr. Florence released when he determined that Florence had, indeed, paid the fine some years before.
Still, the Supreme Court came to the conclusion that the body searches Mr. Florence was subjected to—not once but twice and despite the fact that he had been in police custody the entire time between the first and second search—were “reasonable” within the meaning of what constitutes a reasonable search and seizure for 4th Amendment purposes.
So deeply concerned was the five Justice majority for the need to keep contraband—including weapons and drugs—out of the jail system, they were prepared to relieve authorities throughout the nation of their responsibility to afford American citizens their privacy rights—even when they are hauled in for having a broken bell on a bicycle.
Writing the minority opinion, Justice Stephen Breyer argued that this behavior is not constitutionally appropriate for an individual arrested for a minor offense that does not involve drugs or violence.
“A strip search that involves a stranger peering without consent at a naked individual, and in particular at the most private portions of that person’s body, is a serious invasion of privacy,” Breyer wrote. The “invasion of personal rights” at issue in this case, the dissenters argued, “is very serious and lacks need or justification — at least as to the category of minor offenses at issue.
The Court’s decision greatly expands upon what authorities can do when searching those they detain for alleged crimes, no matter how miniscule the charge may be.
In 1979, the Supreme Court upheld the policy of body cavity searches for prisoners after they had met with visitors. The theory was that the possibility of a guest from the outside having slipped an item of contraband to a prisoner posed a significant threat to the remainder of the prison population and jail officials. For that reason, the search was deemed reasonable.
However, since that decision, the principle has been widely limited so as not to to be applied to newly arriving prisoners where there was no reason for authorities to suspect that the incoming prisoner might have some item of contraband on his or her person requiring confiscation. In other words, the ‘reasonable’ standard was applied.
That limitation is no longer the law of the land.
In what is becoming a habit of some members of the conservative side of the Court who don’t appear to want to be held responsible for the bad precedents they set, Justices Roberts and Alito when out of their way to say that this practice should be limited to the case at hand and that it should not be assumed that this principle is to be applied to all searches—particularly when someone is only to be held for a short time and placed in a cell separated from the general population.
The hope is that this limiting opinion will be applied at jails throughout the country so that people held only until bond is posted will not be subjected to intrusive and humiliating strip -searches.
Just last year, the Roberts Court put another serious dent into the 4th Amendment prohibition against unreasonable search and seizure when it upheld the constitutionality of police in Kentucky entering a suspect’s home without a search warrant.
By: Rick Ungar, Contributor, The Policy Page, Forbes, April 2, 2012
Ron Paul Vs. Birth Control: So Much For The Right To Privacy
Last year, Republican presidential candidate Ron Paul introduced a bill in Congress that would allow states to ban contraception if they choose.
Paul’s “We the People Act,” which he introduced in 2004, 2005, 2009, and 2011, explicitly forbids federal courts and the Supreme Court of the United States from ruling on the constitutionality of a variety of state and local laws. That includes, among other things, “any claim based upon the right of privacy, including any such claim related to any issue of sexual practices, orientation, or reproduction.” The bill would let states write laws forbidding abortion, the use of contraceptives, or consensual gay sex, for example.
If passed, Paul’s bill could undermine the most important Supreme Court case dealing with contraception—1965’s Griswold v. Connecticut. In that case, the high court found that a Connecticut law prohibiting the use of contraception was unconstitutional based on a “right to marital privacy” afforded by the Bill of Rights. In other words, the court declared that states cannot interfere with what happens between the sheets when it comes to reproduction.
Paul’s bill would also keep the federal courts out of cases like Roe v. Wade and 2003’s Lawrence v. Texas, in which the justices found that privacy is a guaranteed right concerning sexual practices and struck down Texas’ anti-sodomy law as unconstitutional.
It’s well known that Paul, like the other remaining GOP presidential contenders, is no fan of abortion or gay people. But the issue of contraception access is one that has not received nearly as much attention.
Paul’s bill hasn’t received much support in the House. It has no cosponsors and has never made it to a vote on the House floor. But that’s not its biggest potential problem: “I don’t think it would be constitutional to strip the court of that power,” said Bebe Anderson, director of the US legal program as the Center for Reproductive Rights. “You certainly couldn’t do it by law—you’d have to amend the constitution to do that.”
Paul’s campaign did not respond to a request for a clarification on the intent of the his proposed law with regard to contraception. But as Addie Stan notes over at Alternet, Paul’s response to a question about the Griswold ruling during a January presidential debate provides hints about what he might say. “As far as selling contraceptives, the Interstate Commerce Clause protects this because the Interstate Commerce Clause was originally written not to impede trade between the states, but it was written to facilitate trade between the states,” Paul said. “So if it’s not illegal to import birth control pills from one state to the next, it would be legal to sell birth control pills in that state.”
Paul is saying, in short, that his bill wouldn’t actually ban the sale of contraceptives, which would be protected under the Commerce Clause of the Constitution. But that’s an extremely unorthodox interpretation of the Commerce Clause, according to several lawyers Mother Jones contacted. The clause typically only deals with whether or not Congress has the ability to regulate interstate business. Paul is correct that the Commerce Clause would prevent a state from banning the importation of birth control pills from another state. But absent a constitutional right to privacy, states could still bar their citizens from buying or selling birth control within the state. “The right to access contraception has not been based on the Commerce Clause in my understanding,” explains the Center for Reproductive Rights’ Anderson.
Among the other GOP candidates who have weighed in on Griswold, Rick Santorum has said he thinks the Supreme Court made the wrong decision. Mitt Romney, meanwhile, square danced (as usual) around the question at the same January debate, first asserting that he “would totally and completely oppose any effort to ban contraception” before waffling on the question of whether states should be able to enact their own bans. “I don’t know whether a state has a right to ban contraception,” he said. “No state wants to…and asking me whether they could do it or not is kind of a silly thing, I think.”
Romney is wrong to suggest no state would contemplate banning contraception. Mississippi considered a ballot measure last November that would likely have done just that. And if Paul has his way, no court would be able to strike down such a law.
By: Kate Sheppard, Mother Jones, February 14, 2012
Conservative Federal Appeals Judge: Case Against Health Reform Has No Basis In ‘The Text of the Constitution’
When the United States Court of Appeals for the D.C. Circuit announced two of the three judges who would hear a challenge to the Affordable Care Act — conservative icons Laurence Silberman and Brett Kavanaugh— the law’s supporters turned white. Silberman is a close ally of Justice Clarence Thomas, a former official in the Nixon, Ford and Reagan Administrations and the author of the lower court decision overturning the District of Columbia’s handgun ban. Kavanaugh is a former Associate Counsel under Clinton inquisitor Ken Starr and a leading attorney in the George W. Bush White House. If anyone would be sympathetic to the case against health reform, these two men were first on the list.
And yet, both judges wrote opinions today rejecting an utterly meritless challenge to the Affordable Care Act — Judge Kavanaugh on the grounds that the court lacks jurisdiction to even hear the case, and Judge Silberman in a tour de force opinion that absolutely obliterates any suggestion that the ACA is not constitutional:
Since appellants cannot find real support for their proposed rule in either the text of the Constitution or Supreme Court precedent, they emphasize both the novelty of the mandate and the lack of a limiting principle. The novelty–assuming Wickarddoesn’t encroach into that claim–is not irrelevant. The Supreme Court occasionally has treated a particular legislative device’s lack of historical pedigree as evidence that the device may exceed Congress’s constitutional bounds. But appellants’ proposed constitutional limitation is equally novel–one that only the Eleventh Circuit has recently–and only partially–endorsed. […]
That a direct requirement for most Americans to purchase any product or service seems an intrusive exercise of legislative power surely explains why Congress has not used this authority before–but that seems to us a political judgment rather than a recognition of constitutional limitations. It certainly is an encroachment on individual liberty, but it is no more so than a command that restaurants or hotels are obliged to serve all customers regardless of race, that gravely ill individuals cannot use a substance their doctors described as the only effective palliative for excruciating pain, or that a farmer cannot grow enough wheat to support his own family. The right to be free from federal regulation is not absolute, and yields to the imperative that Congress be free to forge national solutions to national problems, no matter how local–or seemingly passive–their individual origins.
When a federal judge tells you that your argument has no basis in the text of the Constitution, it is a good sign you don’t belong in court. When he compares your argument to claims that the federal ban on whites-only lunch counters are unconstitutional, it’s an even better sign of how deeply radical your argument has become. When that judge is Judge Laurence Silberman, a man who has stood at the pinnacle of conservative judicial thinking for decades, it is about as good a sign as you can hope for that the Supreme Court is not going to like your argument either.
By: Ian Millhiser, Think Progress, November 8, 2011
Since Corporations Are “People”, They Should Have A Pledge Of Allegiance
Despite what the Supreme Court and Mitt Romney say, corporations aren’t people. (I’ll believe they are when Georgia and Texas start executing them.)
The Court thinks corporations have First Amendment rights to spend as much as they want on politics, and Romney (and most of his fellow Regressives) think they need lower taxes and fewer regulations in order to be competitive.
These positions are absurd on their face. By flooding our democracy with their shareholders’ money, big corporations are violating their shareholders’ First Amendment rights because shareholders aren’t consulted. They’re simultaneously suppressing the First Amendment rights of the rest of us because, given how much money they’re throwing around, we don’t have enough money to be heard.
And they’re indirectly giving non-Americans (that is, all their foreign owners, investors, and executives) a say in how Americans are governed. Pardon me for being old-fashioned but I didn’t think foreign money was supposed to be funneled into American elections.
Romney’s belief big corporations need more money and lower costs in order to create jobs is equally baffling. Big corporations are now sitting on $2 trillion of cash and enjoying near-record profits. The ratio of profits to wages is higher than it’s been since before the Great Depression. And a larger and larger portion of those profits are going to top executives. (CEO pay was 40 times the typical worker in the 1980s; it’s now upwards of 300 times.)
But, hey, if the Supreme Court and regressive Republicans insist big corporations are people and want to treat them as American citizens, then why not demand big corporations take a pledge of allegiance to the United States?
And if they don’t take the pledge, we should boycott them. (Occupiers — are you listening?)
Here’s what a Corporate Pledge of Allegiance might look like:
The Corporate Pledge of Allegiance to the United States
The [fill in blank] company pledges allegiance to the United States of America. To that end:
We pledge to create more jobs in the United States than we create outside the United States, either directly or in our foreign subsidiaries and subcontractors.
If we have to lay off American workers, we will give them severance payments equal to their weekly wage times the number of weeks they’ve work for us.
We further pledge that no more than 20 percent of our total labor costs will be outsourced abroad.
We pledge to keep a lid on executive pay so no executive is paid more than 50 times the median pay of American workers. We define “pay” to include salary, bonuses, health benefits, pension benefits, deferred salary, stock options, and every other form of compensation.
We pledge to pay at least 30 percent of money earned in the United States in taxes to the United States. We won’t shift our money to offshore tax havens and won’t use accounting gimmicks to fake how much we earn.
We pledge not to use our money to influence elections.
Companies that make the pledge are free to use it in their ads over the Christmas shopping season.
By: Robert Reich, Professor of Public Policy at the University of California at Berkeley, Robert Reich Blog, November 8, 2011
Maine GOP Chair: We Must Make It Harder To Vote Because ‘Democrats Intentionally Steal Elections’
For nearly four decades, Maine has been one of eight states which provides same-day voter registration to voters at the polls. This policy of enfranchising the greatest number of Maine voters is likely to end, however, now that the GOP-controlled state legislature has passed a bill ending same-day registration and Tea Party Gov. Paul LePage is expected to sign it. Worse, state GOP Chairman Charlie Webster explained it was necessary to disenfranchise the thousands of Maine voters who take advantage of same-day registration every election year in order to save Maine from one of his paranoid fantasies:
“If you want to get really honest, this is about how the Democrats have managed to steal elections from Maine people,” Webster told a columnist for the Portland Press Herald in a piece published Friday. “Many of us believe that the Democrats intentionally steal elections.”
Sadly, Maine’s voter disenfranchisement bill is only the latest example of the Republican war on voting that began almost immediately after the GOP took over several statehouses this year. Numerous GOP state legislatures have rammed through “voter ID” laws which disenfranchise thousands of elderly, disabled, and low-income voters. Republicans typically justify these voter disenfranchisement laws by claiming that they are necessary to combat voter fraud at the polls, but in-person voter fraud is only slightly more common than unicorns. A recent Supreme Court decision upholding a voter ID law was only able to cite one example of in-person voter fraud in the last 143 years.
Nor are voter ID laws the only front in the GOP’s war on voting. As Jonathan Chait explains, their efforts also include measures “restricting early voting, shortening poll hours, [and] clamping down on students voting at their campus.” And in Wisconsin, Gov. Scott Walker (R) even plans to gut his state’s public financing program — a program designed to make candidates less dependent on wealth donors — in order to pay for a voter disenfranchisement law.
Yet, while the Maine GOP may have won a skirmish in the war on voting with their repeal of same day registration, it is anything but certain that they will win this war. The state’s Democrats hope to invoke Maine’s “people’s veto” process, which allows the voters to repeal a newly enacted state law by referendum. To invoke this procedure, they must collect just over 57,000 signatures before a 90-day window closes.
By: Ian Millhiser, Think Progress, June 13, 2011
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