Civil liberties, skewed by the Supreme Court


IT’S FINE to make Americans strip naked at the whim of police.

But force them to buy health insurance? That’s too much government interference.


The US Supreme Court recently ruled, 5-4, that law enforcement officials can strip-search people who are arrested for any offense, no matter how trivial, before admitting them to jail. The majority opinion was written by Justice Anthony M. Kennedy, who was backed by the conservative wing of the court. Chief Justice John G. Roberts and Justices Samuel A. Alito Jr. and Antonin Scalia joined all of Kennedy’s opinion; Justice Clarence Thomas joined most of it.

This is the same conservative wing that appears to be very skeptical about the constitutionality of the Affordable Care Act. Based on their questions during oral arguments, conservative justices see something sinister in a government mandate requiring Americans to purchase health insurance. They are concerned that asking Americans to buy something that is actually good for them is too intrusive.

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But after an arrest on the most minor of charges - think leash law violation - what about asking people to shed their clothes for up-close and personal viewing? Not a problem. To these rightward-leaning legal minds, strip-searching simply gives government officials the latitude they need to check out a naked Mr. and Ms. America for contraband, disease, and tattoos signaling gang affiliation.

That’s because, to the five justices who ruled in favor of the strip-searches, we are all potential Timothy McVeighs. We may look like average citizens, out for a stroll or a drive, but we just might be evil terrorists.

“People detained for minor offenses can turn out to be the most devious and dangerous criminals,’’ wrote Kennedy. As an example, he cited McVeigh, the domestic terrorist who was executed for his role in the 1995 Oklahoma City bombing, who was first arrested for driving without a license plate. Kennedy also pointed out that one of the terrorists involved in the Sept. 11 attacks was stopped and ticketed for speeding just two days before hijacking Flight 93.


It’s hard to see how strip-searching McVeigh or the 9/11 terrorist would have stopped either of the horrors they unleashed. But consider the implication of this strip-search ruling for average citizens.

Let a pile of parking tickets go unpaid or fail to fix a brake light - beware. If an encounter with police somehow ends unpleasantly with arrest and jail, the next step could be what Kennedy euphemistically describes as “a close visual inspection while undressed.’’

What happened in the case of Florence v. County of Burlington is in itself worth “a close visual inspection.’’

Albert W. Florence was sitting in the passenger seat of a car driven by his wife, when a New Jersey state trooper pulled them over for speeding. Florence was arrested after the trooper checked a statewide computer database and found a warrant for his arrest issued after he had failed to appear at a hearing to pay a fine. (The information was wrong; the fine had been paid.) However, Florence was held for a week in two separate jails and strip-searched in each.

According to the statement of the case, Florence, like other detainees, had to disrobe, “open his mouth, lift his tongue, hold out his arms, turn around and lift his genitals.’’ At the second jail, he had to “remove his clothing while an officer looked for body markings, wounds and contraband; had an officer look at his ears, nose, mouth, hair, scalp, fingers, hands, armpits, and other body openings.’’ Florence also said he was required to “lift his genitals, turn around, and cough while squatting.’’

“It was humiliating. It made me feel less than a man,’’ Florence told the New York Times. He is African American, which likely increased his chances for harsher than usual treatment.

Writing for the four dissenters, Justice Stephen G. Breyer said strip-searches allowed by the majority were “a serious affront to human dignity and to individual privacy.’’ The Fourth Amendment, he wrote, should bar strip-searches of people arrested for minor offenses not involving drugs or violence, unless there’s a reasonable suspicion they are carrying contraband.

But five judges in black robes think it’s okay to strip the rest of us bare. Think about that the next time you let the dog run free or let the parking tickets pile up.

Joan Vennochi can be reached at vennochi@globe.com. Follow her on Twitter @Joan_Vennochi.
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