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The 4th Amendment, Stripped and Degraded

| April 8, 2012

Compliments of the black robes.

About three weeks ago American authorities in Afghanistan cut off funding for the country’s largest prison, a 7,000-convict shop of terror near Kabul called Pul-e-Charki. American officials were disgusted by the guards’ habit of strip- and vaginal-searching all female visitors, though male visitors are allowed in with mere pat-downs: Piously repressive societies sharpen their dogmas to the wink of double-standards.

pierre tristam column flaglerlive The State Department tried to use its influence with Afghanistan’s Interior Ministry to stop the practice, only to be snubbed. American influence itself now resembles the proverbial naked emperor in Afghanistan. Cutting off the money after spending $14.2 million on Pul-e-Charki since 2009 was a last attempt at compelling a measure of civility. It failed. But it generated a reproachful article in The New York Times that managed both to shed light on a nauseating detail of Afghan sleaze while hinting at the relief over the American withdrawal to come.

Until, that is, the five more conservative males on the United States Supreme Court pulled a Pule-e-Charki on American law.

This week, the five ruled strip-searching legal for any of the 13 million people booked into any American jail on whatever offense, from check-bouncing to murder, whether contraband is an issue or not, whether the suspect is male or female. That’s not hyperbole. The case that made it to the Supreme Court began in 2005 when Albert Florence, a black man, was a passenger in his wife’s BMW. She was pulled over for speeding. Yet the trooper sought out her husband’s record, and found an outstanding warrant for an unpaid fine. The warrant was a mistake. The fine had been paid. But New Jersey authorities didn’t clear the mistake until they’d jailed Florence for a week, and strip-searched him twice, requiring him to move his genitals, squat, cough and perform other acts reprehensible to anyone, let alone an innocent man who shouldn’t have been guards’ object of abuse to start with.

Florence is no exception. A nun of 50 years was strip-searched after her arrest for trespassing during an anti-war demonstration. Victims of sexual violence were strip-searched. So were women who were lactating or menstruating. So were individuals detained, as Justice Stephen Breyer specifies in his dissent, “for such infractions as driving with a noisy muf­fler, driving with an inoperable headlight, failing to use a turn signal, or riding a bicycle without an audible bell.” For them, the 4th Amendment’s protection against unreasonable searches proved meaningless.

This is happening in the United States, not in the dungeons of the Middle East. And the Supreme Court’s decision will give license to prison guards to act like goons. Sure, there is that difference with the Afghan prison, where visiting women are the target, not actual prisoners. But the violated principle is the same: It’s “a serious affront to human dignity and to individual privacy,” in Breyer’s words.

The 4th Amendment has been on a spiral toward irrelevance ever since Ronald Reagan’s and subsequent Republican president’s appointees to the Supreme Court have made a parody of its protections against unreasonable searches, with federal, state and local police agencies happily shredding the amendment along—legalizing stop-and-frisk, DUI checkpoints, pulling over drivers with little more than imaginary probable cause, searching cars and property under a mockery of due process called “implied consent,” demanding identification of non-drivers or pedestrians, and so on. Most people ignore that their rights are being violated. Or else they respond even more pitifully: with the complicity of the cowed, which translates to this famous line: “If you have nothing to hide, you have nothing to worry about”—a line that grossly misreads the 4th Amendment’s purpose (to protect from government intrusion) while undermining it with every submission. Cops and the high court have effectively turned the tables on the 4th Amendment. It applies as the individual’s last resort. The presumptive right not to be intruded upon is gone. With so much groundwork in place, the obliteration of protections against strip-searching anyone booked into jail was a matter of time.

It is not supported by necessity, precedent or convention. At least 10 states (Florida among them), the federal government and international human rights conventions forbid strip-searching absent probable cause. A study cited in the Supreme Court case notes that in a New York jail, only one instance of contraband slipped by authorities while using less invasive searches, out of 23,000 people admitted. There will always be exceptions.  But American justice isn’t calibrated to the malice of the few at the expense of the many. Quite the contrary. The assumption of innocence until guilt is proven should apply universally, especially in local jails, where only a fraction of the millions of people booked every year are eventually convicted of serious or violent offenses.

None of this—not the evidence, not the principle, not the immorality—swayed the bare majority of five justices in a decision that blights American justice and further degrades a brutal and overpopulated penal system. It’s not about evidence anymore. It’s not about necessity. It’s certainly not about morality or individual dignity. It’s about control. It is the mentality of the police state wedded to the shortcuts of truncheon-happy goons—the very things the 4th Amendment is meant to protect against. In our prisons, Afghanistan is no metaphor.

Pierre Tristam is FlaglerLive’s editor. Reach him by email here.

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19 Responses for “The 4th Amendment, Stripped and Degraded”

  1. B. Claire says:

    • April 2, 2012 The court ruled by a 5-to-4 vote that officials may strip-search people arrested for any offense, however minor, before admitting them to jails even if the officials have no reason to suspect the presence of contraband.

    • March 2, 2012 Turned healthcare decision into a snarky broccoli discussion

    • March 20, 2012 By a 5-to-4 vote, the court ruled that state workers may not sue their employers for money for violating a part of the federal Family and Medical Leave Act.

    • March 2, 2010 By a 5-to-4 vote Citizens United V FEC – Corporations are people who can spend unlimited $ so that they can cut out middle man to run all branches of the US govt …directly.

    The President was right…these ARE unelected people. In this august position FOR LIFE…who now do as they want, not as they should.

    Not even a pretense, not even a modicum of duty to entire country…just their ‘extreme wing.’

    These 5 might as well as FOX ‘NEWS’ sewn on their robes like NASCAR sponsors!

    • Liana G says:

      B.Claire, great points except for the one on the healthcare decision. This is not a healthcare decision, it is a health insurance decision. A healthcare decision would have been Medicaid for ALL or the public option. This healthcare decision benefits those who already have insurance by having them pay less by forcing everyone to pay in regardless of if they can afford to or not. America spends more on Medicaid and Medicare than Canada, England, and other industrialized countries with socialize healthcare yet receives less coverage and services. This is what needs fixing. This so-called healthcare reform will benefit liberal controlled insurance and big pharma corporations at still excessive costs to Americans.

      Buying car insurance doesn’t mean I get a free car, I still have to pay for the car. Likewise, buying health insurance doesn’t mean I get free healthcare, I still have to pay whatever fees and services I incur, be it doctor visits, tests/scans, prescriptions, etc.

      There was a very good story on NPR’s Diane Rehm Show yesterday on this issue, a healthy 33 year old male called into the program and related that his last yearly doctor visit ended up costing him $9,000 when his doctor recommended that he take a stress and cholestrol test, which he found out were totally unnecessary including the prescription pills, after he did research.

  2. C. Blair says:

    Man brings “shank” into jail. Hides it in his rectum. Those darn pesky right wing supreme court judges. Who do they think they are ?


      it’s scary that some people have no idea what goes on out there.
      Thanks C.Blair …short and to the point , and thank you supreme court judges.

      • NortonSmitty says:

        What is scarier is what is going on in there. I’m in South Carolina for Easter. My girlfreind just got out of two days in jail. Her crime? She was pulled over and the car we bought just before we left came up with no insurance according to the Police computer, even though she had our insurance card from her old car and the number to the agent who could verify the transfer. He was not in at 8:30 Saturday morning, and it wouldn’t have mattered if he was, the cop said. The computer knows all, but it evidently doesn’t update info immediately. This state is even better at putting us under the boot of Big Insurance than Florida, as not having insurance is an arrestable offense here. I’m sure Tallahassee is working on catching up.

        So a 60 year old woman was strip searched and thrown in jail with drug addicts, dealers and drunks, who evidently treated her with more compassion than our heroic Men in Blue, giving her their own blankets, food and toiletries out of sympathy after she was submitted to the strip and cavity search all of you law and order asshats are so proud of.

        Remember the old saying, a Civil Libertarian is a Republican who has just been arrested. And if you think it can’t happen to you you are dead wrong.

        • dontbesoparanoid says:

          I don’t buy it. Two days in jail for no proof of insurance? I like the compassionate cellmate bit…but why wasn’t she bonded out? I’m sure there was a bond for this ticketable offense? Perhaps there’s more to the story but that’s none of my business.

          • NortonSmitty says:

            She got to the jail too late for the 3 PM bond court Saturday and no court on Sunday (Easter).

            • dontbesoparanoid says:

              So again none of my business but I can’t help but wonder why no bond was set and why she’d have to go before a judge for a simple insurance infraction?

    • NortonSmitty says:

      You are absolutely right CB. A man who hides a knife up his ass everyday before leaving the house on the off chance that he might be arrested is certainly no one I’d want to screw with

  3. B. Claire says:

    C. Blaire [verrrry clever btw] :)

    There are probably as many ‘shanks’ smuggled in body cavities

    as there is

    ‘voter fraud’ that was used by right wing extremists to suppress voting rights all across America [.0002 percent, or one 5,000th of a percent, of voter fraud, according to non-partisan Brennan Center for Justice.]

    But you never know ole C. Blair…those jay walkers and leash law-breakers can be verrrrryy dangerous and may need a full strip naked, body cavity search.

    For a rabid group of ‘Keep Government Out Of Our Lives’ people…you’re mighty anxious to jump all ugly on & in everyone else’s bodies [VA Gov. demand for mandatory vaginal probes, ‘you don’t have to watch’ ultrasounds] to ramp up your war on women & their right to make their own choices about their own bodies.

    Please, spare me the self-righteousness.

    • Merle from Michigan says:

      Your eyes are wide open and wonderful. Democracy Now, Prest, Miller, Madison,Sharpton Hartmann, Schultz, TYT, Maddow, Hardball, Last Word, Ring of Fire Radio, Up with C.H., or The M-H-P Show. Which one is your number one info show? Can’t call any of them ‘news, but it’s where I get my daily info from and you are on point!!

  4. Elana Lee says:

    “legalizing stop-and-frisk, DUI checkpoints, pulling over drivers with little more than imaginary probable cause, searching cars and property under a mockery of due process called “implied consent,” demanding identification of non-drivers or pedestrians, and so on. Most people ignore that their rights are being violated. Or else they respond even more pitifully: with the complicity of the cowed, which translates to this famous line: “If you have nothing to hide, you have nothing to worry about”—a line that grossly misreads the 4th Amendment’s purpose (to protect from government intrusion) while undermining it with every submission.”

    You nailed it with “the complicity of the coward”. The actions you describe above are nothing new and will continue until citizens demand their rights. However, when one is not afraid to speak up, dares to challenge the status quo, and worse, ask questions, they must be prepared to pay a very steep price. But there’s inner peace in knowing you didn’t compromise your character nor integrity, no matter the cost.

  5. Jim R. says:

    The courts decisions are making it obvious that the America that never was, never will be.
    Our declaration and constitution should be put in a time capsule so that some future generation with good intentions can use them as blueprints to build a just society.
    we had the blueprint but failed, and now the authoritarian police state is upon us.

  6. We are starting to teeter back toward the middle at last. We have been to the right for so long I was beginning to get worried that we were headed into a police state. Thanks to the Media ( at least a part of it is still alive and independent) more and more of these bizarre rulings from the Supremes are becoming well known to mainstream voters, and the seeds of an informed democratic nation are starting to grow again.

    In the meantime better get the name of a good lawyer and write his/her number down just in case you get stopped because a tail light on your car goes out and you get pulled over. I had a client who was arrested, cuffed and then tasered locally because he did not have his driver’s license in his immediate possession: but his wife had it, and the brave Deputy did not want to hear it from her. The FCSO had long ago decided to remove Dash Cams from their vehicles because too many DUI arrests were resulting in Not Guilty verdicts, so I had no evidence to prove the arrest was an excessive use of force

    • JIM.R says:

      Tell me please, what makes you think we are teetering to the middle?
      If the middle you’re talking about is Bill Clinton and Obamas version of the middle, we are still way to the right .This willingness to settle for the middle proves there is no Left, left.
      What media are you talking about that deserves thanks, all I see are a bunch of corporate lackeys spewing propaganda, they are as far from what a journalist is supposed to be as you can get

  7. Sherry Epley says:

    B. Claire. . . yet again, you are “spot on”. . . excellent job of seeing the bigger picture and connecting the “terrible” dots. I echo your thoughts completely. Many of the chosen topics of stories published on this wonderful web site are showing symptoms of the same fatal disease. The demise of the protections of our freedoms, rights and civil liberties.

  8. Merle from Michigan says:

    If I were a cop, I’d do everything I could do to stop and arrest one of those 5 Justices, (probably Thomas), and have them perform a deep cavity search. For the lawmakers (or Supreme Court Justices in this case), when it adversely affects them, I bet they would either enact a law to block such an act or simply repeal the offending law. This is ridiculous, but U.S. Citizens generally have no idea how their rights are being cancelled by SCOTUS!

  9. jespo says:

    So?….the answer is no strip searches…for anyone? What happens if someone does bring in a weapon and uses it…or drugs then gets narc’d up and quietly strangles someone in the holding cell or something bearing in mind that someone’s poor dad or grandpa might have been just placed in there for a driving infraction? What is the answer? Strip searches for just the ‘bad’ people? I wonder what right winger will decide that. No strip searches? Sounds hefty lefty. Strip searches for those who have been arrested before? That would be a lot of people, some arrested for traffic like stuff, like a ‘one and yer done’ policy. Strip searches based on age, race, sex, creed? Way too right. I’m running out of ideas here. Strip searches for only certain crimes? Stupid stupid stupid idea based on the notion that bad people only commit really bad crimes. Strip searches only for certain days, times, or custody lengths? Even stupider idea.

    The answer is simple. Either buck up and get strip searched like eveyone else in jail , or don’t allow strip searches. If they’re not allowed, then please don’t cry if something happens to your dear sonny boy, wife, husband or dad if they get shanked, slit their wrists, or OD’s in jail…you’ve lost the right to cry or say anything about it because you’ve removed from the system the ONLY way to be DEFINITIVELY sure that someone has not brought something into prison to harm themselves or others.

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