Posts Tagged ‘fourth amendment’
[Guest Post] Patting down the data on racial profiling in New York City
This is the next in a series of guest posts on criminal justice broadly speaking from Peter Wagner of the Prison Policy Initiative.
by Peter Wagner
New York City’s “stop and frisk” policing strategy is getting a lot of attention. A police officer notes a “reasonable suspicion,” whatever that is, and then stops the person, asks some questions and then often frisks him or her.
It’s not hard to see where allegations of racial profiling come from. It’s the subject of a class action lawsuit, and last week 20 people, including Cornel West, were convicted for a civil disobedience protest last year against stop and frisk.
“Stop and frisk” is a major NYC initiative that is growing:
The majority of the people being stopped and frisked are Black and Latino, and that’s been a consistent fact: Read the rest of this entry »
Supreme Court Upholds Jailhouse Strip Searches, Even for Traffic Infractions
A 5-4 majority of the Supreme Court has ruled that jails may constitutionally strip-search anyone admitted to the jail, no matter how minor the reason they’re in jail. Writing in dissent, Justice Breyer observed that “the harm to privacy interests would seem particularly acute where the person searched may well have no expectation of being subject to such a search, say, because she had simply received a traffic ticket for failing to buckle a seatbelt…”
Actually, in the case at issue in this decision, the subject of the strip-search was erroneously arrested for something that isn’t even a crime: Albert Florence was arrested for not paying a fine that in fact he had paid, and in any event not paying a fine is not a crime under New Jersey law, it’s a civil infraction. As I noted previously about this case:
This line of cases should be extraordinarily troubling for civil libertarians. When you combine cases finding no Fourth Amendment violation when the police arrest and detain you even for very minor offenses — even offenses that aren’t actually arrestable offenses under state law — with cases finding no Fourth Amendment violation when jail guards strip-search you after booking on a minor offense, basically we’re giving the police a green card to find any pretext to have anyone they don’t like arrested, jailed, and strip-searched. Read the Atwater dissent, Part II, if you don’t think this could be a real problem.
I haven’t yet had time to read the full SCOTUS opinions, so perhaps I’ll have additional thoughts later, but you can find all the opinions and other materials here at SCOTUSblog.
Some Twitter reactions:
Georgia Prison Guards Settle Lawsuit over Alleged Beatings for $93,000
Georgia prison guards accused of beating four inmates have agreed to pay $93,000 to settle a federal lawsuit over the allegations. The Chattanooga Times Free-Press reports:
“We think this recognizes that there is a problem with excessive force at Hays State Prison,” said Atteeyah Hollie, an attorney for the Southern Center for Human Rights.
The Atlanta-based human rights group filed the civil lawsuit in July in federal court in Rome, Ga., on behalf of four inmates. The inmates claim they were beaten when officers responded to a fight in a nearby prison cell in August 2010.
Georgia Department of Corrections officials said they were reviewing questions from the Times Free Press about the suit, but didn’t have a response by Friday afternoon.This is the second time the human rights group has sued the maximum security prison in Trion, Ga., alleging excessive force. A suit was settled in 1997 on behalf of 14 men who claimed they were beaten without reason.
More on the settlement here, from the Atlanta-based Southern Center for Human Rights.
Second Circuit Reinstates Lawsuit over Sexual Abuse in New York State Prisons
Since 2003, the Legal Aid Society has been pursuing a class-action suit on behalf of “present and future” female inmates in the New York state prison system, alleging a pattern of “sexual abuse—including forcible rape—of women prisoners by state correctional officers,” facilitated by inadequate staff screening, training, oversight, and grievance procedures. Claiming violations of the Fourth, Eighth, and Fourteenth Amendments, the plaintiffs are asking a federal district court to issue an injunction requiring the New York DOC to implement more effective policies and procedures for preventing sexual abuse.
At the trial court level, the case had been dismissed by district judge Kevin Duffy, in part because some of the plaintiffs are no longer in prison, so their requests for injunctive relief are moot. Now the Second Circuit has reversed that ruling, reinstating the lawsuit as to those plaintiffs and sending it back to the district court for further proceedings to determine if the case can proceed as a class action. (Full opinion PDF here — note, the case has had a very complicated procedural history and this is mainly a procedural ruling, so the opinion may be hard to follow; I’ll translate some of the legalese after the jump, if you’re curious).
The AP reports on the stance of the New York Department of Corrections:
In April, Corrections Commissioner Brian Fischer testified the department has adopted a series of directives and orientation materials for prisoners and notices to staff and inmates emphasizing zero tolerance sexual abuse. He noted the department’s inspector general has one of the few prison sex crimes units in the nation investigating allegations of misconduct by staff, as well as abuse by inmates on one another.
“The reality, however, is that while we do not willingly tolerate sexual abuse of our offenders, we may not be able to ever fully eradicate the occurrence,” he said. “Our approach is to take proactive preventive measures, immediately respond to all allegations and seek criminal penalties where appropriate believing that such efforts have a deterrent effect within the system.”
SCOTUS Might Take Case on Jailhouse Strip Searches
Adam Liptak noted earlier this week that the Supreme Court appears likely to grant cert in Florence v. County of Burlington, in which a New Jersey man was arrested, detained for over a week, and repeatedly strip-searched for a supposedly unpaid fine. (Failure to pay a fine is not a crime under New Jersey law — it’s a civil offense — and in any event, the fine actually had been paid.) More info on Florence here at SCOTUSblog. Liptak points to cases out of Atlanta, San Francisco, Philadelphia upholding jailhouse strip searches after any arrest, no matter how minor the charges. So for readers who want more background, I thought I’d note my earlier coverage of some of those earlier opinions. Here are two posts from the archives:
- San Francisco County Jail’s Blanket Strip-Search Policy Is Reasonable, Ninth Circuit Says (February 9, 2010) — with some background on the circuit split as it was at that time
- With Liberty and Strip Searches for All? (January 26, 2010) — my earlier coverage of Florence, back when it was still before the Third Circuit
This line of cases should be extraordinarily troubling for civil libertarians. When you combine cases finding no Fourth Amendment violation when the police arrest and detain you even for very minor offenses — even offenses that aren’t actually arrestable offenses under state law — with cases finding no Fourth Amendment violation when jail guards strip-search you after booking on a minor offense, basically we’re giving the police a green card to find any pretext to have anyone they don’t like arrested, jailed, and strip-searched. Read the Atwater dissent, Part II, if you don’t think this could be a real problem.
Ninth Circuit: Sheriff Joe-Approved Cross-Sex Strip Searches Are Unconstitutional
An Arizona pretrial detainee’s Fourth Amendment rights were violated when he was strip-searched by a female guard, the Ninth Circuit ruled last week in a sharply divided en banc decision. The case arose out of Sheriff Joe Arpaio’s notorious Maricopa County jail system. The San Francisco Chronicle‘s Bob Egelko sums up:
[Charles] Byrd was ordered to strip down to his shorts – colored pink, as required for all inmates by Joe Arpaio, the county’s hard-line sheriff – and was searched by a female cadet from a training academy. She said she had taken no more than 20 seconds, while Byrd estimated the time at a minute. No contraband was found. …
“The right to be free from strip searches and degrading body inspections is … basic to the concept of privacy,” Judge Johnnie Rawlinson said in the majority opinion, quoting an earlier ruling.
No emergency existed, Rawlinson said, because male guards were present and could have conducted the search. She said the “humiliating event” was aggravated by the presence of onlookers, one of whom videotaped the search.
Dissenting Judge N. Randy Smith said the cadet had conducted the search professionally and, although it was “unsavory to our sensibilities,” the action met legal standards.
More reporting here from CNN; the full opinion can be downloaded here (PDF). For some background on Ninth Circuit case law on jailhouse strip searches generally, see my earlier post here.
No Surprise: California Journalists Go with Fearmongering Instead of Contextualizing Recent Parole Reforms
As I’ve noted before, California’s parole system is widely misunderstood by citizens throughout the state and too often the California press only exacerbates the confusion. Here’s the latest in the long line of fearmongering articles about released prisoners who go on to do bad things. In this case, the ex-prisoner in question is Alexander Diaz, a 36-year-old Cuban national released from Delano State Prison earlier this year who went on to steal a delivery van and drive it into a police officer on a motorcycle. Pursuant to recent reforms, Diaz had been among the recently released prisoners put on “non-revocable parole” (translation: no parole officer, no parole conditions, but still no Fourth Amendment rights), rather than full parole supervision:
On Tuesday, Diaz appeared in Alameda Superior Court for a preliminary hearing on charges of attempted murder and auto theft. If he is convicted, Diaz could return to prison for a long time.
Obviously, Diaz made a deplorable series of decisions that resulted in a terrible accident. (Thankfully, the police officer survived after intensive surgery for a compound leg fracture.) But is parole reform to blame? Here’s what’s not mentioned in the article: Read the rest of this entry »
San Francisco County Jail’s Blanket Strip Search Policy Is Reasonable, Ninth Circuit Says
An en banc panel of the Ninth Circuit held today that San Francisco County Jail’s blanket strip search policy is reasonable under the Fourth Amendment — overruling earlier Ninth Circuit precedent that required individualized reasonable suspicion for jailhouse strip searches. The opinion is worth reading in full, for it comes complete with a provocative, though somewhat digressive concurrence by Chief Judge Alex Kozinski (sampler: “I’m convinced that airport searches would be far more intrusive if upper and middle-class Americans were exempt”) and a vigorous dissent by Judge Thomas, co-signed by Judges Wardlaw, Berzon, and Rawlinson, opening with a litany of the plaintiffs’ allegations. Litigators’ tip: When challenging an intrusive search policy under the Fourth Amendment, it’s always helpful if one of your plaintiffs is a Catholic nun:
Mary Bull was arrested at a political protest for pouring red dye mixed with corn syrup on the ground. At the police station, according to her testimony, she was pushed to the floor and her clothes forcibly removed. Her face was smashed against the concrete cell floor while jailors performed a body cavity search. She was left naked in the cell for eleven hours, then subjected to a second body cavity search. After another twelve hours in the jail, she was released on her own recognizance. She was never charged with a crime.
Charli Johnson was arrested for operating a motor vehicle with a suspended license. She alleges she was forcibly strip searched by male officers in a hallway, and that she was kept in a cold room, naked for twelve hours with male officers regularly viewing her. No contraband was found. She was released the next day. No charges were ever filed.
Sister Bernie Galvin, a Catholic nun and a member of the Sisters of Divine Providence, was arrested at an anti-war demonstration for trespassing. She was strip searched at the jail. No contraband was found.
Read the rest of this entry »
Puerto Rico Prisoner Forced to Undergo Abdominal Surgery, or, the Case of the Apparently Nonexistent Contraband Cell Phone
The First Circuit held last month that a Puerto Rico prisoner’s lawsuit claiming Fourth Amendment violations can proceed, where the inmate alleges that he was
forced to undergo dangerous, painful, and extremely intrusive abdominal surgery for the purpose of finding a contraband telephone allegedly concealed in his intestines, even though the basis for believing there was a telephone was slight, several tests had indicated the absence of any such object, and additional, far less intrusive testing could easily have obviated any need for such grievous intrusion.
(Sanchez v. Pereira-Castillo, et al., No. 08-1748, 1st Cir., Dec. 23, 2009, p. 21)
Although prisoners are not afforded full Fourth Amendment protections — for instance, their cells can be searched at any time — they do retain a limited right of bodily privacy while incarcerated (see pp. 15-16). Here, the court emphasized the dramatically invasive nature of the search — involving “total anesthesia, surgical invasion of the abdominal cavity, and two days of recovery in the hospital” (p. 23) — combined with the lack of justification for such an extreme procedure, given that a variety of less intrusive measures, such as an X-ray, could have been used. The court also rejected the government’s arguments that the surgery was not a search at all, or, if it was a search, was not unconstitutional, simply because it was a medical procedure: “When a medical procedure is performed at the instigation of law enforcement for the purpose of obtaining evidence, the fact that the search is executed by a medical professional does not insulate it from Fourth Amendment scrutiny” (p. 26). More details after the jump…
With Liberty and Strip Searches For All?
Almost a year ago, Judge Joseph H. Rodriguez ruled unconstitutional the policy of two New Jersey county jails to strip search all detainees upon arrival, even if arrested for failing to pay a traffic ticket, or, in Judge Rodriguez’s hypothetical, even if a “priest or minister arrested for allegedly skimming the Sunday collection.” (The cite is Florence v. Board of Chosen Freeholders of County of Burlington, 595 F. Supp. 2d 492 [D.N.J. 2009]). The plaintiff was strip searched
follow[ing] his erroneous arrest during a 2005 traffic stop for a fine he had already paid. He was ordered during the searches to squat naked and, while standing in front of prison guards, to lift his genitals.
[Side note: At this point casual readers may be wondering, “Wait, I could get arrested for a traffic infraction?! Well, yes, if the Supreme Court has anything to say about it.]
According to a corrections official quoted by the Star-Ledger, the justification for a blanket strip search policy is that “streetwise” inmates might “pass contraband to those accused of lesser offenses, knowing they will be subjected to a less thorough search.” However, federal courts have tended to reject blanket strip search policies as a violation of the Fourth Amendment, holding that a jail officer should strip search a detainee only upon “reasonable suspicion” that he actually has contraband or a weapon.
Burlington and Essex counties have appealed Judge Rodriguez’s ruling to the Third Circuit, and the ACLU recently filed an amicus brief for the plaintiff, along with a coterie of former New Jersey attorneys general. The ACLU brief makes the following arguments in favor of the reasonable suspicion standard (I’m paraphrasing):
Prison Law Blog 