There’s quite a bit of outrage in the blogosphere and the media about the Supreme Court’s decision that routine strip searches are not a violation of the U. S. Constitution:
WASHINGTON — Jailers may perform invasive strip searches on people arrested even for minor offenses, an ideologically divided Supreme Court ruled Monday, the conservative majority declaring that security trumps privacy in an often dangerous environment.
In a 5-4 decision, the court ruled against a New Jersey man who was strip searched in two county jails following his arrest on a warrant for an unpaid fine that he had, in reality, paid.
The decision resolved a conflict among lower courts about how to balance security and privacy. Prior to the Sept. 11, 2001, terror attacks, lower courts generally prohibited routine strip searches for minor offenses. In recent years, however, courts have allowed jailers more discretion to maintain security, and the high court ruling ratified those decisions.
My dad used to complain about a certain class of lawyers, the only law of which they were aware being the U. S. Constitution. As I understand the Supreme Court’s ruling, the Court has not declared the states’ laws against routine strip searches unconstitutional. It has merely held that in the absence of such laws correctional officers may conduct invasive searches without violating the Constitution’s prohibition of unreasonable searches and seizures.
Here’s the law in Illinois regarding strip searches:
(c) No person arrested for a traffic, regulatory or misdemeanor offense, except in cases involving weapons or a controlled substance, shall be strip searched unless there is reasonable belief that the individual is concealing a weapon or controlled substance.
(d) “Strip search” means having an arrested person remove or arrange some or all of his or her clothing so as to permit a visual inspection of the genitals, buttocks, anus, female breasts or undergarments of such person.
(e) All strip searches conducted under this Section shall be performed by persons of the same sex as the arrested person and on premises where the search cannot be observed by persons not physically conducting the search.
(f) Every peace officer or employee of a police department conducting a strip search shall:
(1) Obtain the written permission of the police commander or an agent thereof designated for the purposes of authorizing a strip search in accordance with this Section.
(2) Prepare a report of the strip search. The report shall include the written authorization required by paragraph (1) of this subsection (f), the name of the person subjected to the search, the names of the persons conducting the search, and the time, date and place of the search. A copy of the report shall be provided to the person subject to the search.
(g) No search of any body cavity other than the mouth shall be conducted without a duly executed search warrant; any warrant authorizing a body cavity search shall specify that the search must be performed under sanitary conditions and conducted either by or under the supervision of a physician licensed to practice medicine in all of its branches in this State.
(h) Any peace officer or employee who knowingly or intentionally fails to comply with any provision of this Section is guilty of official misconduct as provided in Section 103-8; provided however, that nothing contained in this Section shall preclude prosecution of a peace officer or employee under another section of this Code.
(i) Nothing in this Section shall be construed as limiting any statutory or common law rights of any person for purposes of any civil action or injunctive relief.
(j) The provisions of subsections (c) through (h) of this Section shall not apply when the person is taken into custody by or remanded to the sheriff or correctional institution pursuant to a court order.
To my mind Subsection (j) is the most interesting and we might want to revisit it. I’m not completely familiar with the details of the Mary Beth G. v. Chicago case but to my eye it appears that the Chicago police were in violation of state law or, said another way, the plaintiffs lawyers should have argued violation of Illinois law rather than arguing the U. S. Constitution. Whatever the details, Springfield is the proper place to engage not Washington. If you don’t like the laws or law enforcement officers aren’t obeying the laws, throw the bums out. We shouldn’t be under any illusion that we won’t just get a different set of bums but if the voters speak loudly enough at the ballot box the new bums may have different priorities than the old ones had.
I don’t know how much interest law-abiding people have in the procedures for arrest and incarceration. The strongest advocates of limitations on police powers would naturally be defense lawyers, and people don’t like them much, law-abiding or not.
Illinois has alot more problems than just enforcement of strip searches.
The nonsensical wiretapping law. The horrifyingly corrupt CPD. The local police and state troopers who behave like highwaymen on your state’s highways.
There are days when you folks in Illinois make us in California look positively sane and reasonable.
Regarding this specific case, the problem is that the police can arrest a person pretty much whenever they want. Regarding the control substances requirement in section (c) that is easily circumvented by police: have a drug sniffing dog falsely alert. Bingo, search time. I know you are thinking I’m just a crazy libertarian, link.
So pretty easy to get around the law here, IMO.
Janis,
You are a felon. You probably break at least one law that could land you with a felony charge every week.
HAND.
I am so unhip. I had to look up HAND.
I have been discussing this all day, off and on, with my online group. The conservatives all think it is swell that people get strip searched when arrested, as being arrested is tantamount to guilt. One of the more depressing discussions I have had. This is a bunch of bankers, lawyers and physicians.
I think that there should be probable cause for a strip search. You can be arrested for darn near anything. Just Google around and you can find hundreds of instances of the police arresting the wrong people. Strip searching someone for breaking a leash law makes no sense.
Steve
As Dave says, the court has returned the ball to local legislatures. We have a lot more power there than in Washington. But if someone is arrested, well, as a population, we say where there’s smoke, there’s fire.
With the possible exception I noted, I think that the Illinois statute has it about right. The problem here is that the law is, apparently, frequently disregarded.
@Janis Gore
I don’t know how much interest law-abiding people have in the procedures for arrest and incarceration. …
They have a great interest in protecting their rights. A “law-abiding” person is only “law-abiding” until an action is made illegal. As @Steve Verdon pointed out, you or someone you know is not as “law-abiding” as you or them may think. This occurs far more often than most people realize.
Personally, I would rather trust a Peace Officer than a criminal, but unfortunately, I have learned that law-abiding people are being declared criminals. I understand that law enforcement can be a dirty job, but there should be limits on what they can do.
“For the Snark was a Boojum, you see.”
@Steve Verdon
… crazy libertarian …
Most people would consider “crazy” to be redundant.
I would consider Ron Paul to be extreme, but as a former rabid Randian, I now understand how easy it is to take a simplistic view of things. Many libertarians principles presuppose conditions that are often unrealistic or unworkable. “Free Trade” presupposes some mechanism to ensure “Free”.
“For the Snark was a Boojum, you see.”
Ahem. I’m married to a country lawyer who prefers defense.
@Dave Schuler
To my mind Subsection (j) is the most interesting and we might want to revisit it. …
I am not sure what you think needs to be revisited, but it may be improperly implemented. I am not familiar of Chicago or Illinois laws.
The Supreme Court case and Subsection (j) apply to someone being transferred into a general population facility. Even with a strip search, keeping contraband out is a difficult task. Allowing anyone into a secure facility without a proper search would provide a avenue to introduce contraband into the facility.
“For the Snark was a Boojum, you see.”
The problem we got here is that local police procedure will likely expand to constitutional limits without watchdogging (hey, Talley) by concerted citizens. That’s not likely to happen because you didn’t go to jail yesterday.
Sure it is disregarded. Cops have limited immunity and as such they can get away with stuff the regular citizen cannot. The examples are plentiful if you really want to find them. Most people don’t. They are quite content to live with the false belief that the cops are your friends or the good guys.
You’d be a fool to trust either. And nice euphemism, “Peace Officer,” that’s a good one. lawl
Qualified Immunity
If you trust a cop, you’re an idiot.
… And nice euphemism, “Peace Officer,†that’s a good one. …
Peace Officer is an established term for an officer of the law. This term includes more the police or a sheriff’s deputy. My remarks were intended to encompass this larger list.
At one time, “42 USC 1983” was a hammer to keep Peace Officers “in line”, but times may have changed. It has been a while since I have been concerned with law enforcement misconduct.
… the false belief that the cops are your friends or the good guys.
Most cops are the good guys. At one time, you could trust 90 – 95% of law enforcement officers. Today, I would guess the number is lower, but the problem now is at an organizational level. Instead of a rogue cop or unit, there are now rogue departments. In a rogue department, the percentage of bad guy cops is over 50%, and this behavior is tolerated and/or encouraged by the leadership.
The militarization of law enforcement and asset forfeiture especially drug related, and the two tend to reinforce each other. A lot of police departments and sheriff’s offices are making a lot of money using asset forfeiture, and this money is used to buy military related equipment.
The other issue is that it is much harder to perform one’s duties. Good police work is subjective, and it is a dirty job. At times, you need to “crack heads”, and other times, you need to let things go. Knowing the difference comes from a combination of classroom training and on-the-job training. Forcing cops to treat criminals as law abiding citizens has resulted in many cops treating everybody like a criminal. I realize this will be controversial, but I do not have the time to put together a dissertation with proper documentation.
Whatever the reason, law enforcement is overstepping their authority substantially, and it is disturbing. The number of publicized incidents are not isolated cases. I am concerned about the expansion of authority in multiple areas.
You’d be a fool to trust either. …
I must be a fool. Actually, I do not trust most people, but I usually understand the situation and act accordingly. Don’t treat a man like a bitch, and don’t act like a punk. The game never really changes.
“For the Snark was a Boojum, you see.”
I can’t tell you with any authority what police officers, generally, think but I can share my own experience with you. One of my college roommates became a police officer. He’s retired as a captain now. Over the years I went to quite a number of cop parties. My observation is that young police officers are very good, very positive but within about five years their attitudes are rather forcefully altered.
They begin to divide the world into two groupings: cops and perpetrators. That’s it. There are no innocent civilians.
Additionally, they make a transition from enforcing the law to imposing order, two very different things.
Wrong.
Scenario: Bad cop does something bad and people notice. “Good cops”–i.e. the ones who weren’t involved–cover up for the bad cop. Case in point, the Kathryn Johnston shooting. When that first went down the Assistant Police Chief immediately went into defense mode. He did so as a knee jerk reaction without looking to see what the facts were. The facts were really, really, really f*cking bad in that several narco cops murdered a 96 year old woman after lying to a judge to get a warrent based on information they did absolutely nothing to verify.
The real good cops–i.e. the ones who actually stand up and say something about the bad cops–they get hounded out of the force and black balled. That is, the good cops aren’t good cops for long because after awhile they are no longer cops.
Hence there are no “good cops”. There are bad cops and the rest of the cops that act as enablers.
Think I’m wrong, spend 2-3 weeks reading Radley Balko’s website.
Us vs. Them and since we aren’t part of the Us grouping we have to part of Them are treated accordingly. And you can see it in the higher profile stories like one with Sal Culosi, Cheye Calvo, Corey Maye, thousands of others who have been the victims of wrong door raids, or false arrest. Go look at the Innocence Project website and read about the cases there. Read enough of these and you realize our criminal “justice” system is a sick and cruel joke.
Yeah, one is a necessary component of a free society, the other is a necessary component of a totalitarian society.
@Steve Verdon
I am not unaware that bad things are happening regarding law enforcement, but I would argue that most of these incidents are widespread throughout the organizations where they occur. What is/is not tolerated comes from the leadership. I am fully aware that in many cases there is no redress. The “system” seems to be against the individual, but I see it everywhere.
There are any number of reasons for the “Us vs. Them” mindset. It has always been there for some, but from what I see, it looks to have become more widespread. Again, I think it has changed from an individual problem to an organization wide problem. One reason is that criminals are to be treated like non-criminals, and the choice is between everybody is a non-criminal or everybody is a potential criminal.
If the vast majority of cops are bad, we could dissolve all the police departments and sheriff’s offices. We could also rid ourselves of the correctional institutions. The TV shows about life inside do not begin to tell the story.
Personally, I can handle myself, and I have a good idea of what it is like when the criminals are running things. From what I understand, the streets have gotten a lot meaner, but the game doesn’t change.
@Steve Verdon, I do not know anything about you, and you may be able to handle yourself. I do know that most people whining about the police would not last very long in a cop-free world. One really does not want to treat a real gang banger like a bitch, and being a bitch/punk is not an esteemed quality by them either.
“For the Snark was a Boojum, you see.”