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Strip Search Sammy Comes Through For Authoritarianism

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Our liberty-loving Supreme Court has once again decided to use the Federalist Society Constitution, the one with the word “suckers” in it that omits the Fourth Amendment. You can now be subjected to a not merely warrantless but suspicionless strip-search for being guilty of a minor traffic offense.

The opinions bring to mind Scalia, back when he seemed to be willing for enforce the Fourth Amendment once in a while, critiquing another Kennedy assault on the Bill of Rights: “all this contains much that is obviously true, and much that is relevant; unfortunately, what is obviously true is not relevant, and what is relevant is not obviously true.”   Except that this would be too generous to Kennedy, since the justifications offered by Kennedy, Roberts, and Alito as far as I can tell contain nothing that is relevant.    For example, as Liptak notes, Breyer explains the kind of menaces to society who can now be humilated:

According to opinions in the lower courts, people may be strip-searched after arrests for violating a leash law, driving without a license and failing to pay child support. Citing examples from briefs submitted to the Supreme Court, Justice Breyer wrote that people have been subjected to “the humiliation of a visual strip-search” after being arrested for driving with a noisy muffler, failing to use a turn signal and riding a bicycle without an audible bell.

A nun was strip-searched, he wrote, after an arrest for trespassing during an antiwar demonstration.

But wait — Kennedy has a response!

Justice Kennedy responded that “people detained for minor offenses can turn out to be the most devious and dangerous criminals.” He noted that Timothy McVeigh, later put to death for his role in the 1995 Oklahoma City bombing, was first arrested for driving without a license plate. “One of the terrorists involved in the Sept. 11 attacks was stopped and ticketed for speeding just two days before hijacking Flight 93,” Justice Kennedy added.

Well, first of all, so what? Did McVeigh have a semiautomatic rifle stored in his rectum? Would any there have been any threat to public safety if he couldn’t be strip-searched? But leaving that aside, the strip searches authorized by the Court weren’t done by the side of the road (although we may be headed in that direction soon.) Presumably, McVeigh was detained because after being pulled over for driving without license plates the authorities found that he was the suspect in a mass terrorist killing. So what this has to do with people detained for minor nonviolent offenses I haven’t the slightest idea. As I say at the linked post, the arguments offered by the majority opinions are all pretty much at this level of bare assertion and non-sequitur.

Needless to say, this case is even more infuriating when you consider last week’s oral argument. It should be obvious that the Supreme Court owes much less deference to the arbitrary actions of local officials than it does to legislation passed by the United States Congress, but the conservatives on this Supreme Court get it exactly backwards.

…UPDATE: “the kind of logic that can turn a democracy into a police state.” More from Balko and Digby.

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  • theophylact

    And of course the 9/11 terrorist who was ticketed for speeding wasn’t arrested or searched at all, which is one reason 9/11 happened.

    • gmack

      Which is obviously why we need to detain and strip search all speeders. QED.

      • timb

        If they had, they would have seen the plans for 9/11 and a cellphone with Osama bin Laden in speed dial shoved up the guy’s rectum

  • Njorl

    “One of the terrorists involved in the Sept. 11 attacks was stopped and ticketed for speeding just two days before hijacking Flight 93,”

    Some of the terrorists were never even arrested for anything. This means that it’s justifiable to strip search anyone, anytime. Right?

    I won’t say that certain Supreme Court Justices are stupid, but they certainly say incredibly stupid things. Since there seems to be no other check on their power other than public humiliation, that check should be applied relentlessly.

    • Scott Lemieux

      Look, if not for all your liberal nonsense about “valid arrest warrant” this and “probable cause” that, Timothy McVeigh could have been arrested before the bombing. Why do you love terrorism?

      • Hogan

        And an arbitrary strip search would be just the thing to make someone like McVeigh think, “Hey, I’ve been wrong about the government all along.”

        • sven

          (+1)

      • Hey, I admit it I love terrorism.

        • wengler

          That’s the sort of phrase that will get you popped up on the Big Brother machine.

    • Steve LaBonne

      I think it’s been obvious for a long time that Kennedy really is a very stupid man.

      • stevo67

        calling Kennedy a stupid man is unfair to stupid people.

    • david mizner

      Yes, and give them an ultrasound.

      I think the police state aspect of this combined with the sexual overtones (strip search!) made this an easy call for the orifice-obsessed conservatives. The great thing about robes, it conceals erections.

  • Bill Murray

    “people detained for minor offenses can turn out to be the most devious and dangerous criminals.”

    My experience is that the most devious and dangerous criminals i can think of have never been arrested at all. Maybe we should arbitrarily strip search everybody that will end crime.

    • c u n d gulag

      Jeez, Bill, how many of them do you know?

      Is there any reward money for them?

      If you’re not interested in collecting after squealing on them, let me know – I could use the money. :-)

    • Njorl

      If we were all naked all of the time, there would be a lot less crime, at least in winter.

      • Hogan

        Me walking around naked should be a crime.

      • timb

        What a great comment

      • david mizner

        No need. The NSA is building a new lab from where they can see inside our recta even when we’re fully clothed.

        • Bill Murray

          I thought the TSA had already implemented this

        • efgoldman

          +1 for “recta”

  • mark f

    I’m afraid this decision doesn’t go far enough. How do we know that that antiwar nun hadn’t had a detonatable cell phone implanted in her by a maniacal supervillain, all so he could blow up the police station in his quest to sew anarchy across the land? How much are we willing to risk?

    • Don’t be silly. Genuinely evil supervillains knit, rather than sew.

      • mark f

        Damn it. Another hardened criminal gets off on a technicality.

      • mds

        You delivered quite the purl of wisdom there, Malaclypse.

        • The groan is the highest testament to a good pun. And I GOL’ed (groaned out loud) at that one.

        • Uncle Kvetch

          You delivered quite the purl of wisdom there, Malaclypse.

          Oh, now that’s just crewel.

      • catclub

        I knitted my brows and became crochetty when they sowed those pearls of wisdom so badly.

  • rea

    The solution is not so much to stop strip-searching arrested people, but to stop arresting people for the kind of trivial offense that makes it repugnant to strip search them.

    • Glenn

      You’re exactly right, but unfortunately that horse left the barn in 2001 with Atwater v Lago Vista — thanks to Justice Souter, of all people. (I had great admiration for him but he really blew it on that one.)

      • John

        Huh, interesting. There can’t be too many 5-4 cases where O’Connor was on the liberal side and Souter was on the conservative one.

        • Scott Lemieux

          O’Connor was pretty good on these kind of 4th Amendment cases, dissented in several “students can be drug tested at will” cases.

      • jim48043

        Justice Souter was assigned to write a majority opinion that needed to have the majority sign on to it. One can tell that Souter found the specific action, if not unlawful, at least distasteful, and then wrote an opinion to the effect that SCOTUS would leave remedies for such things to the locals instead of federal intervention.

        It’s too bad most of the voters and almost all of the local officials are unable (or pretend to be unable) to distinguish reluctance to intervene from unqualified approval.

        The problem with that is the same problem that led to federal anti-lynching laws: the locals too often let the “good old boys” do as they like.

        What is really silly is when an Anthony Kennedy, instead of taking the Souter track of “yes, this is a bad thing, but coming up with a federal remedy would end us up in a worse place,” tries to justify the action with some absurd example.

        And, no, I don’t like the result in Lagos.

        Maybe someday the locals will treat this and the Lagos decision the way they reacted to the one in Kelos. I happen to think Souter, too, would so hope.

      • rea

        Souter, after all, was conservative Republican–just not a rightwingnut loonie.

  • Bizono

    Justice Kennedy responded that “people detained for minor offenses can turn out to be the most devious and dangerous criminals.” He noted that Timothy McVeigh, later put to death for his role in the 1995 Oklahoma City bombing, was first arrested for driving without a license plate. “One of the terrorists involved in the Sept. 11 attacks was stopped and ticketed for speeding just two days before hijacking Flight 93,” Justice Kennedy added.

    Apparently Justice Kennedy is worried that someone picked up and tossed in the clink for driving without a license might pull a box cutter from their rectum, hi-jack a prison, and fly it into a large government building.

    • To be fair to Kennedy, that is exactly what he has planned.

      • mds

        Well, at this point in his career, Kennedy has pulled everything else out of his ass. So why not a box cutter?

    • BigHank53

      I can understand why Kennedy might want to indulge his paranoia, but why does he want to turn every police department in the United States of America into SAVAK? It’s not like we don’t know how that story turns out.

      • John

        Hey, if SAVAK hadn’t been limited by the Shah’s well known bleeding heart regard for civil liberties, the Iranian Revolution might never have happened.

    • Scott Lemieux

      I wish you liberals would explain why you didn’t want the police to find the several bags of fertilizer McVeigh had stored in his ass.

      • Incontinentia Buttocks

        You wouldn’t want the smoking gun to be a mushroom cloud…emerging from some miscreant’s rectum!

  • sean

    I haven’t read the actual decision yet, but most of the analysis seems to indicate that the decision applies to custodial situations. I don’t see how this actually changes the authority of the jailers. The general conditions concerning strip searches should still apply after the decision, i.e. not being a punitive measure, not being performed in a public place, not be intrusive to the point of raping somebody to search for contraband.
    Being said, the court’s seeming willingness to allow without a specific reason them would not troubling if there were a policy requirement in place to ensure the strip search does not become a punishment, kinda like the requirement for an inventory policy when a car is impounded.

    • BigHank53

      C’mon, remember when Scalia stated that interrogations weren’t covered by the 8th amendment, because they weren’t a punishment assigned by a court? Maybe you’ll re-think your policy of keeping silent after your fifth unlubricated cavity search and you’re leaving bloody ass-prints on the concrete floor of your cell, punk. If we even bother to ask you any questions at all, of course…

  • c u n d gulag

    I think you’re reading this wrong.

    In THIS case, after deciding against the ACA mandate, they’ve shown they’re FOR OBM – “The Obama Broccoli Mandate.”

    I had a friend once, who, when given broccoli on a plate, would make it appear as if he was eating it – and then, he’d pull it out of the damnedest places, to show the rest of us that he hadn’t, in fact, eaten it.

    We must be sure that ALL American finish their broccoli. This way, they’ll be healthier, and then the SC can return to the ACA mandate issue.

    But in the meantime, strip-searches are just another tool in the great shed of Democracy.

    Ok, George H.W. Bush – bend over and spread ‘em!

    What do you mean, “Why?”
    Because…
    FREEDOM!!!
    LIBERTY!!!
    THAT’S WHY!!!!!

    I told you to SPREAD ‘EM, Pop’s – and I mean PRONTO!!!

    • gocart mozart

      The Court was concerned that some nefarious individual may get away with hiding a brocoli mandate under their balls and so they needed toact fast. For freedumb’s sake.

  • BradP

    Justice Kennedy responded that “people detained for minor offenses can turn out to be the most devious and dangerous criminals.”

    “And those that don’t are usually non-violent drug offenders and minorities,” he continued, “So its really a win-win”.

    • Giving the devil* his due, I salute you for that, Brad.

      * “Devil” is much too strong for you, my brother, but it’s a great phrase, so there you go.

      • BradP

        * “Devil” is much too strong for you, my brother, but it’s a great phrase, so there you go.

        Correct on both accounts, but I’m not quick to take the title as an insult:

        “But here steps in Satan, the eternal rebel, the first freethinker and the emancipator of worlds. He makes man ashamed of his bestial ignorance and obedience; he emancipates him, stamps upon his brow the seal of liberty and humanity, in urging him to disobey and eat of the fruit of knowledge.”

        • Hogan

          “In a lot of ways, I guess Satan was the first superhero.”

          “Don’t you mean supervillain?”

          “Nah. Hero, for sure. Think about it. In his first adventure, he took the form of a snake to free two prisoners being held naked in a Third World jungle prison by an all-powerful megalomaniac. At the same time, he broadened their diet and introduced them to their own sexuality. Sounds like a cross between Animal Man and Dr. Phil to me.”

          • NBarnes

            Paging Dr. Gaiman. Dr. Gaiman to the ER.

  • I realize the list for worst Supreme Court justices is very long, and that Kennedy’s far from the top of that list, but holy hell is he trying to make a strong push up that list as his career progresses devolves.

  • mingo

    What with the state-mandated rape laws, and now this, it really makes you wonder* about the sexual hang-ups of conservatives, and why they need to inflict them on everybody.

    Perhaps terrorism is too strong a word to use for this ruling, but I can see it used quite judiciously against various ‘enemies of the state’ (occupiers, Quakers, anti-war protestors, etc.) to ‘discourage’ us.

    *not really.

  • mds

    Glad to see noted enthusiastic George Zimmerman defender Radley Balko get this one right.

    • timb

      Balko is awesome on civil liberties. Dude’s obsession has actually resulted in the convicted innocent being released

    • BradP

      http://www.theagitator.com/2012/03/22/trayvon-martin/

      For those of you demanding a reaction: Yes, I think the story is an outrage. I think the police who did such a sloppy/indifferent investigation of Zimmerman ought to be fired. I think Zimmerman should be charged, though I don’t know that we have enough solid details for me to have an opinion on whether it ought to be second-degree murder or something more like manslaughter.

      That’s all I see on his blog. Have you got other links?

      • mds

        Nope, all I was going on was an excerpt I saw elsewhere, which funnily enough turned out to be from the exact same post you linked to:

        I’ll leave you to chew on another email I received yesterday from a longtime reader:

        Why do you think people are up in arms about Trayvon Martin? You’ve posted on a number of deaths that equal or excel the Martin affair in outrageousness. What’s different about this case?

        Off the top of my head, in Florida alone we could consider the cases of Rachel Hoffman, Isaac Singletary, Nick Christie, Tyler Spann, and Anthony Diotaiuto. I’m sure if I dug through the archives, I could find others. Why didn’t those cases attract the attention Martin’s has? I have my own opinions, but I’m interested in hearing yours.

        [Italics added]

        So I was going off of how well this excerpt fit in with the broader use of the “Why weren’t you outraged by all these other murders?” maneuver by the Right, which is generally used to minimize the Martin situation. Apparently, I was wrong, and Balko deserves credit for the statement in your excerpt, regardless of how he pivoted to “on the other hand” afterwards. (I have my own opinions as to why he was slow and subsequently terse in reacting to this particular egregious police abuse, while still finding time to, e.g., mock stupid-but-harmless NYC regulations, but I’m interested in hearing from our commenters.)

        • BradP

          I don’t fault you for that mistake.

          That is a pretty common tactic people use to make it seem like outrage isn’t warranted, and the section you quoted sounded like an example.

          I think Balko’s question was the rare example of someone legitimately asking why people weren’t outraged at the others (those links attached to the names will piss you off mightily).

          I will say, however, that Balko may have been holding his tongue to avoid commenting on “Stand Your Ground” laws. I am not sure where he stands on those.

          • mds

            I think Balko’s question was the rare example of someone legitimately asking why people weren’t outraged at the others (those links attached to the names will piss you off mightily).

            Oh, they certainly are off-pissing. But asking why people who don’t usually pay close attention to such issues are outraged over this one, when it was brought to light largely by chance, has a whiff of some Latin-named fallacy or other. I shall call it legiticus homunculus ad versam.

            I will say, however, that Balko may have been holding his tongue to avoid commenting on “Stand Your Ground” laws.

            Since I was thinking the same thing, I must congratulate you on your excellent reasoning.

            I suspect this also partly underlies his opinion as to why there’s so much interest in the Martin tragedy. Because if the police could plausibly believe that the particular combination of a sweeping “Stand Your Ground” statute with Florida’s existing self-defense definition actually immunized Zimmerman from arrest, then it could present PR difficulties for future states copying and pasting NRA / ALEC boilerplate into their laws. Though I could see how Balko might be concerned, I doubt the knee will actually jerk significantly, even if I’d gladly accept some adjustments to Florida’s toxic brew of default self-defense state of mind + Stand Your Ground + judicial precedent.

            • BradP

              I suspect this also partly underlies his opinion as to why there’s so much interest in the Martin tragedy. Because if the police could plausibly believe that the particular combination of a sweeping “Stand Your Ground” statute with Florida’s existing self-defense definition actually immunized Zimmerman from arrest, then it could present PR difficulties for future states copying and pasting NRA / ALEC boilerplate into their laws. Though I could see how Balko might be concerned, I doubt the knee will actually jerk significantly, even if I’d gladly accept some adjustments to Florida’s toxic brew of default self-defense state of mind + Stand Your Ground + judicial precedent.

              This is all very likely true. Reason has been running with the “‘Stand Your Ground’ Laws are irrelevant” angle to the Martin shooting. I would expect Balko to be of the same mind.

              And while I have been sympathetic to the law, the Martin shooting reminded me that one should not be quick to evaluate a law in a vacuum. Environment and outcomes matter.

              While I may be able to see the justice of it in my head, the law applied inappropriately can result in great injustice.

    • Murc

      I’ll criticize Radley Balko for a LOT of things (he’s explicitly in favor of government being for sale to the highest bidder, for instance) but he hasn’t leapt up and come roaring to George Zimmerman’s defense. If you want to take a swipe at him, take a swipe at him for things he’s actually done and said.

      Dude gets an assumption of good faith from me because he actually puts his money where his mouth is and does real good in the world. More than I’ve done, for sure.

  • Bizono

    The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

    Contrast that with this:

    A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

    ..and then consider how this court interprets the former very narrowly, and the latter very loosely.

    • Davis X. Machina

      Consider the size and potency for the lobby for the one, and for the other.

  • timb

    The distinction between their fascination with “economic liberty” and their disdain for the 4th Amendment is simple.

    Economic liberty applies to the rich and monied

    Disdain for the 4th affects mostly the poor and people of color.

    The Court wants to keep the latter down and free the former to create “a better society.” I’m afraid this Court is more interested neo-feudalism than they are conservatism.

  • Barry Freed

    Time to take a stand people! They can forcibly strip me but they can’t make me spread my own cheeks or lift my own sack.

    • …tote them barges, lift them bales…

      • Bill Murray

        and you land in jail

  • Mike D.

    Isn’t “guilty” here even an exaggeration of the limitation. You just have to be in jail, i.e. have been arrested for an ostensibly legitimate reason. The appellant himself wasn’t guilty of what he’d been arrested for (having an unpaid traffic citation, I think).

  • Alan in SF

    a not merely warrantless but suspicionless strip-search for being guilty of a minor traffic offense.

    I believe the actual case involved someone who was arrested for something that not only was he not guily of it, it wasn’t even a crime.

    Also important to keep in mind that metal detectors and pat-downs provide a pretty good check against most weapons. Kennedy’s logic seems to be that the average American drives around with heroin and plastic shivs up his butt, just in case he should be arbitrarily arrested and sent to jail.

    • Richard

      Not quite. The case invovled someone who was arrested and jailed for failing to pay a fine. However, the computer record was wrong. He had paid the fine. So he was arested for a crime – failure to pay a fine – but one he was not guily of.

      That said, the decision is terrible.

      • Alan in SF

        I’m too lazy to go back to the source, but I think it was reported that failure to pay that particular fine wasn’t actually a crime under state law.

        • Alan in SF

          I did a quick scan of WaPo and NYT, and no mention of this, so I may have been hallucinating. Wouldn’t be the first time.

          • Jesse Levine

            It’s worse. When he was arrested he had written proof the fine had been paid.

            • rea

              And nevertheless spent a week in jail while they figured it out.

              • Rhino

                I assume he was, shall we say, not white?

            • And it was not just that he had written proof. He kept written proof with him in the car.

  • BradP

    Quick story:

    A couple of years ago, I received a ticket for driving with an expired/suspended (can’t remember which one at this point) tag. Me, being the irresponsible and scatterbrained sort that I am, missed the Monday court date. Realizing my mistake on Tuesday, I called and asked about rescheduling. I was told I would need to bring in some court fees and I could reschedule at the courthouse, all of which I planned on doing on the upcoming weekend (as the courthouse was an hour and a half away).

    That Thursday night at 11:30, a couple of officers showed up at my door to serve a bench warrant and hauled me off to jail. Thinking it would be a quick in and out, I threw on some shorts, some flip-flops, and a fleece.

    What I didn’t know is that they were serving a bench warrant for the neighboring county and would be holding me until that county sent an officer to pick me up. That resulted in me sitting in a holding cell for 48 hours without being booked. Of course, since I wasn’t booked and they were holding for another county, I was off the radar for those 48 hours with my wife and family unable to find me.

    Getting to the relevant part, I was finally retrieved and brought to the county that had served the bench warrant. Even though I have nothing violent on my record, and my crime up to this point had been a lapse in insurance of a couple of days six months prior, I was strip searched. I was about as humiliated and uncomfortable as I have been in my life.

    The poor and marginal face this sort of hostile treatment from all quarters of government (which follows from society in general, often).

  • Alan in SF

    And yeah, it is pretty telling that conservatives, famous for their hatred of intrusive government, are cheering for forced butt probes for people not accused of any crime, and forced vaginal probes for women seeking legal medical treatment.

    I believe this is the well-known conservative committment to traditional values and constitutional originalism — a right to health care may not be in the Constitution, but mandatory orificial penetration sure is.

  • Charlie Sweatpants

    Kennedy is a coin flip that seems to increasingly come up tails and Scalia is an asshole of gargantuan diameter. I get that part. But there are both of Obama’s justices on the side of the angels.

    I don’t follow the Court closely enough to know, but hasn’t Kagan been wobbly on civil liberties before? Or is that just when it comes to deferring to Executive power? I ask because both she and Sotomayor are (probably) going to be on the bench a lot longer than Kennedy or Scalia, and it sure seems like there will be more cases like this one (state power to more or less arbitrarily fuck with citizens) coming down the pipeline in the coming years. The Fourth Amendment isn’t coming back without five justices that give a shit about it on the bench, and I’d like to know whether I can mentally pencil those two in as reliable.

    • Glenn

      But there are both of Obama’s justices on the side of the angels.

      And, as Glenn Greenwald points out on twitter, on the other side from Obama’s DOJ, which weighed in on the “strip search ’em all” side of this case.

      • rea

        Bloody hell, have the career prosecutors at DOJ ever confessed error on an issue of criminal procedure, regardless of what adminstration is in office? This is not the sort of decision made at the political level by this adminstration or any other.

        • Glenn

          Well, Florence was not federal law enforcement, the SG was weighing in as an amicus.

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