US Supreme Court Strips Away Rights, but Washington Law Covers Privacy
Monday mornings can be difficult for all of us, but this week an extra distressing piece of news arrived at the week’s start. It was the United States Supreme Court’s ruling grossly expanding the circumstances in which a person can be strip-searched. It’s a reminder of one reason I’m glad that I live in Washington state.
The case is called Florence v. Board of Chosen Freeholders of County of Burlington, and I do mean the ruling was “gross.” The man who was strip-searched, Albert Florence, had been convicted of two minor unspecified offenses in 1998 and sentenced to pay a fine in monthly installments. In 2003 he fell behind on his payments and failed to appear at an enforcement hearing, so a bench warrant for his arrest was issued. He paid the full outstanding balance on his fine less than a week later. Case closed, you would think.
But then things got worse. A lot worse.
“For some unexplained reason,” (the Court’s own words), the warrant remained in the statewide computer database used by police to determine who should be arrested, even though the fine had been fully paid. Also unexplained by the Court is what basis the police had for stopping Mr. Florence while he was driving two years later. But because the warrant showed up in the database despite his having paid the fine, Mr. Florence was hauled off to jail (actually two different jails; six days in one and two in another). Here is what was done to him there:
Jail procedures required every arrestee to shower with a delousing agent. Officers would check arrestees for scars, marks, gang tattoos, and contraband as they disrobed. Petitioner claims he was also instructed to open his mouth, lift his tongue, hold out his arms, turn around, and lift his genitals. …
When petitioner was transferred [to the second jail], all arriving detainees passed through a metal detector and waited in a group holding cell for a more thorough search. When they left the holding cell, they were instructed to remove their clothing while an officer looked for body markings, wounds, and contraband. Apparently without touching the detainees, an officer looked at their ears, nose, mouth, hair, scalp, fingers, hands, arms, armpits, and other body openings. This policy applied regardless of the circumstances of the arrest, the suspected offense, or the detainee’s behavior, demeanor, or criminal history. Petitioner alleges he was required to lift his genitals, turn around, and cough in a squatting position as part of the process. After a mandatory shower, during which his clothes were inspected, petitioner was admitted to the facility. He was released the next day, when the charges against him were dismissed.
Mr. Florence was understandably upset about the humiliating invasion of privacy the strip searches subjected him to. Even one of the Justices who voted to approve the strip search agrees: “Undergoing such an inspection is undoubtedly humiliating and deeply offensive to many.” A more accurate description is found in the dissent: “[P]ractices similar to those at issue here are ‘demeaning, dehumanizing, undignified, humiliating, terrifying, unpleasant, embarrassing, [and] repulsive, signifying degradation and submission.’”
And remember, Mr. Florence had already paid the fine and it was the government that inexplicably failed to correct its records regarding the warrant. But it was all perfectly lawful, the Supreme Court majority said. Jails have “a responsibility to ensure that jails are not made less secure by reason of what new detainees may carry in on their bodies,” regardless of how little justification there was for Mr. Florence being in jail in the first place. As the ACLU’s national Legal Director pointed out, the ruling “jeopardizes the privacy rights of millions of people.” (http://www.aclu.org/criminal-law-reform/aclu-says-supreme-court-decision-upholding-strip-searches-puts-privacy-rights )
Fortunately, Washingtonians value their privacy more. We prohibit strip searches of minor offenders booked into jail.
Our state law was passed in 1986 after ACLU-WA led the effort to get a bill restricting strip searches at jails. It’s RCW 10.79.130(1). We knew just how awful widespread strip searches could be from having litigated three cases in the early 1980s, in which women booked into jail after arrests for minor charges were strip-searched. We leveraged the publicity resulting from successful settlements to help gain passage of a statewide prohibition on strip searches of pretrial detainees unless there is reasonable suspicion the person is hiding weapons or contraband, or probable cause to believe they are hiding evidence. The statute isn't perfect; it doesn't apply to arrests for drug offenses, but it does protect most minor offenders – including protestors arrested for civil disobedience.
Washington also has one of the strongest protections of personal privacy in the country in our state constitution, and the ACLU-WA regularly files friend of the court briefs defending the strength of that protection.
We'll have to work carefully to maintain the law protecting our privacy from unwarranted strip searches. But we can take pride in the fact that our statute, along with those in several other states, was cited by the four dissenting justices as evidence that reasonable limitations on strip searches do not, in fact, threaten jail security.