Monday, in an opinion with sweeping implications for the thousands of noncriminal offenders arrested across the country each year, the U.S. Supreme Court denied the civil-rights claim of Albert Florence, ruling that detention centers do not need any suspicion or cause to strip-search a detainee.
“Maintaining safety and order at detention centers requires the expertise of correctional officials, who must have substantial discretion to devise reasonable solutions to problems,” wrote Justice Anthony M. Kennedy for the court’s majority. In a 5-4 decision that split the court’s conservative and liberal wings down the middle, the dissenting judges wrote Monday that a jail should first decide whether there is a reasonable belief a detainee is concealing something on them before forcing that detainee to be strip searched.
“(T)he seriousness of the offense may be a poor predictor of who has contraband,” Kennedy also wrote, as he sought to explain that on the ground-level at the nation’s rough-and-tumble jails, it would simply be “unworkable” to force officials to determine who may be a “suspicious” smuggler of contraband, and who may not.
The case itself was thrust into the national spotlight almost a year ago, when the high court announced that it would hear Florence’s claim. Litigators and experts realized immediately that the upcoming Supreme Court ruling would set clear national law on an important issue that would likely affect tens of thousands of people in the years to come who would be arrested for minor alleged offenses.
Indeed, there had been a split in recent years among the country’s powerful federal appellate courts, with several going against the trend of earlier years — ruling that, in their view, the “reasonable suspicion” test was not necessary, and that instead a blanket strip-search rule made the most sense.
Florence, of Bordentown and now 36, held a news conference in Newark last April with his outspoken and flamboyant civil rights litigator, Susan Chana Lask, by his side. “It’s disgusting, very disgusting,” he said of the two strip-searches he’d endured. In one instance, he said in a near whisper, he was even ordered to squat down, expose his anus and cough.
Florence was arrested by the state police after his wife was pulled over for speeding and the officer noticed there was a warrant for Florence’s arrest, based on a supposed unpaid fine.
But, in fact, Florence, the father of four children and today a finance manager at a car dealership in Middlesex County, had already paid the fine.
In his dissent Monday, Justice Stephen G. Breyer focused first, on the humiliating invasion of one’s privacy that can result from a strip search. He then cited data from study that he said showed how incredibly rare it was for an offender to actually smuggle drugs, weapons or other contraband into jails on their persons. And he cited “a plethora of recommendations of professional bodies, such as correctional associations” that argue for a reasonable suspicion test before a strip search, while also pointing out that many correctional facilities apply that standard, “including the U.S. Marshals Service, the Immigration and Customs Service, and the Bureau of Indian Affairs.”
Meanwhile, Justices John G. Roberts Jr. and Samuel Alito Jr. wrote concurring opinions to Kennedy’s that focused on both the limits of his opinion and the opening for certain exceptions to it. Alito wrote that different standards may apply to people arrested but not placed in the general population of jail.
Roberts pointed out that, “Florence was detained not for a minor traffic offense but instead pursuant to a warrant for his arrest, and that there was apparently no alternative, if Florence was to be detained, to holding him in the general population.”
Reached by phone Monday, Florence’s lawyer, Lask, said she was seizing on Roberts words about “there apparently was no alternative … to holding him in the general population,” saying that within the next 25 days she and Florence would be petitioning the Supreme Court for a rehearing, during which she would try to show that, factually, Florence should never have been put in the jail after his arrest, but rather should’ve been brought quickly before a magistrate judge.
“I’m going a file a petition for a rehearing; it’s not over,” she said. “Justice Roberts wants an alternative; he says it in his opinion.” Lask added, “There’s major factual error that’s glaring for everyone … they (the justices in the majority) got confused; there was a warrant that didn’t justify the strip.”
She added of her reading of Roberts’ concurring opinion, “He’s almost saying, ‘For God’s sake, I don’t want this to happen to my son. He wants an alternative — I’m going to give it to him in a rehearing.”
Lask also said that Florence was mostly avoiding the media Monday, but that he was ready for a further fight. She added that when she told him about her idea to petition for a rehearing, he then wrote her an e-mail that she read aloud, in which he called her a “tough cookie” and said “you just put a smile on my face.”
The private lawyer hired by Burlington County, Brooks DiDonato said Monday that Burlington officials were “delighted” with the court’s ruling, and he added that since Florence’s civil rights claim that had been certified as a class was now defeated, the high court’s ruling potentially saved Burlington and Essex County between $10 million and $20 million.