Monday, April 02, 2012

SCOTUS okays strip searches in lockup for any offense

See SCOTUSBlog and the New York Times for inital coverage of the US Supreme Court's decision allowing strip searches of anyone, no matter what their alleged offense, in American jails.

Though Grits hopes to be wrong, I wouldn't be surprised to see Texas county jails quickly changing their policies to take advantage of this new authority unless the Legislature steps in next year to regulate the practice. Just a couple of years ago, Bexar County  paid out a $4.5 million settlement over its strip searching policy at the jail and changed their procedures so that "Only detainees charged with felony crimes or those suspected of having contraband will continue to be searched," a local TV station reported at the time.

The ruling overturns a 5th Circuit ruling previously governing jails in Texas which held that jails couldn't strip search inmates arrested for petty offenses without being able to articulate "individualized reasonable suspicion." This new ruling overturns that precedent and clears the way for Texas jails to begin strip searching every arrestee if local Sheriffs choose to do so.

I've not heard of the 5th Circuit restrictions on strip searches in jails (which have been in place since Kelly v. Foti in 1996) posing any particular problems, and IMO the Legislature should reintroduce those same restrictions when they meet in 2013. When the courts refuse to protect liberty, it's up to the other branches of government to step in.


Anonymous said...

An even better and simpler solution: If you don't want to get strip searched, just don't go to jail.

Anonymous said...

2:50 did you look at the case at issue in this decision? The party that was strip searched was a guy named Albert W. Florence, who was a passenger in a car driven by his wife that was pulled over for speeding. Police arrested him after a warrant check due to a unpaid fine.

Problem is that he had paid the fine and had documentation at the time of his arrest that proved he had done so. The cops arrested him anyway, and he was strip searched pursuant to jail policy.

So please tell us (since you appear to be one of those Tuff on Crime types for whom the government never makes a mistake) - in a case like this, how does one implement your "simple solution" to "just don't go to jail"?

Anonymous said...

Unsurprisingly, 3:25, you Soft on Crime types usually understate full measure of the offense and/or the extent of the defendant's criminal background. Sounds like there was a lot more to Mr. Florence than you suggest.

From the case summary: "Justice Anthony M. Kennedy opened with a description of Florence’s earlier run-in with police, seven years before the arrest that led to the strip searches. He had been arrested after fleeing from police, and was charged with obstruction of justice and use of a deadly weapon. He had pleaded guilty to less serious offenses, had paid part of the fine, but had fallen behind in his payments. That, and a failure to appear at a court hearing about the fine, led to the issuance of an arrest warrant. He had paid the remainder of the fine a week later, but the warrant remained open in computer files."

Gritsforbreakfast said...

4:00, 3:25 accurately characterized the reason Florence was arrested, and you still haven't answered the question posed: Since police didn't know the background you cite when they arrested him, what could Florence have done in this case - under the exact fact circumstances described, being arrested on a bad warrant - to avoid being strip searched? In reality, the answer is "nothing." Your argument and Kennedy's reference to Florence's criminal history are just tossed out as distractions from the Catch-22 this case combined with Atwater v. Lago Vista creates for average people accused of minor offenses.

Anonymous said...

Not to mention all of the truly innocent, never been in trouble with the law people that get arrested.

Here's an easy one about which there should be no dispute - how should Michael Morton have avoided going to jail in 1986?

Or the people in this story:

Somebody needs to tell the subjects of that story that they screwed up. If they had simply not gone to jail, they wouldn't have had any issues at all.

Anonymous said...

You know, I wish I was still as naive as 2:50. I wish I still believed in the Easter Bunny, Santa Claus, the Tooth Fairy... life would be so much simpler to believe that only the guilty get arrested, that the guys in the white hats are always the good guys, etc..

Unfortunately, I'm not that naive anymore. 2:50, I pray you can hold on to your illusions for a long time.

Anonymous said...

Here's one for 2:50, four deputy constables in Smith County were recently arrested because the county doesn't give them health insurance. Figure that one out.

Anonymous said...

Here's another for 2:50:

May you live in interesting times,


may you come to the attention of the authorities.

Anonymous said...

What difference does it make why someone goes to jail as to whether they get strip searched? Is it any less difficult for someone charged with a Class C misdemeanor to smuggle a weapon or contraband on their person as someone charged with a felony? I wonder how many officers have been killed in the line of duty by someone who was stopped for a simple traffic violation. And what difference does it make if the person arrested is ultimately proven innocent? There's no way for the officers or jailers to be able to know that at the time.

Anonymous said...

Let's see, was is Wichita Falls that was putting folks in jail for overdue library books a couple of years back?

The point, for 2:50 & 5:57, is that not all arrestees are the same and that some intelligent observation and judgement should be required by the authorities, rather than a blanket policy to strip search everyone.

Also, it may not be a problem for you, but there are many people who don't care to expose themselves to others...especially for something like overdue books.

You can't get that?

Anonymous said...

5:57, I'll accept that comment from you only on the conditon that the next time that you go to, say, a sporting event that you, as a (presumably) innocent person tell the first security guy that you see that he needs to take you to a back room and strip search you. For his safety, of course. That's apparently paramount to any other consideration....

Arce said...

Seven days to get a check made to see whether a 7 year old warrant was still valid??? He probably had a cause of action over the failure to remove the warrant, with damages including the humiliation of being strip searched twice and held for seven days away from his job and family.

Jennifer Laurin said...

Sounds like a sure-fire issue for Dan Patrick to take up in 2013, no? Given his past concern for invasive, suspicionless searches?

Anonymous said...

6:33 some intelligent observation and judgement??? Have you met some of these jailers?? I think you might be stretching the limits of their ability.

DLW said...

Seriously 5:57: "Is it any less difficult for someone charged with a Class C misdemeanor to smuggle a weapon or contraband on their person as someone charged with a felony?"

Would it be your thinking that folks ride around with deadly weapons or drugs in their body cavities just in case they get arrested and go to jail? Really?

DEWEY said...

Two observations:
(1) I wish all the people named "Anonymous" would number themselves so I could keep them separate.
(2) As most of the good guys in the first Star Wars movie said "I've got a bad feeling about this...."

Anonymous said...

who is the ignorant person saying if "you dont want to be strip searched, dont go to jail." ?? who are you, havent u been reading this blog at all? havent u been watching the news or reading about it? Do u have any idea who Jim Hightower is? or Bill Maher? Is it escaping ur reason that, at this point, if ur out in public, YOU can be arrested for anything, anything. And now u will be strip searched. Do some research, before you attempt to be clever.

Lee said...

I still would like to know, how does one decide not to go to jail? I can't stop the police from arresting me (as much as I want to) because resisting arrest is a crime too. How was Michael Morton supposed to stay out of jail? The police will come to snatch you at any point and the court will sort it out later after you have had your colonoscopy. Like Grits says "You might beat the rap, but you wont beat the ride"

Anonymous said...

More for 5:57 pm, who wrote, "I wonder how many officers have been killed in the line of duty by someone who was stopped for a simple traffic violation."

Approaching an unknown vehicle on a traffic stop is entirely different than booking someone into the jail. By the time they are booked, someone has spent some time with the individual and hopefully made some intelligent observations.

It was never that you could not strip search anyone. Rather, it was that, in addition to current offense or history, if you could articulate and document a reason, even current excessive nervousness or maybe walking like they have something stuck in their behind...then you can document it and strip search that person.

In addition, this applies to putting someone in the "tank" with other arrestees. When someone is going to stay awhile and goes into the general population, it is fine to strip search everyone as a blanket policy.

Banning blanket strip searches of arrestees keeps nuns, cute sorority girls, perhaps even shy bookworms of either sex from potentially being humiliated/harassed over relatively minor matters.

If you cannot understand this, if you do not have the ability to make intelligent observations and shift gears depending upon the person you are dealing with and if you are employed in law enforcement, please find another occupation.

rodsmith said...

actualy lee resisting an illegal arrest is under our constution perfectly LEGAL. As for this case. The retards on the bench seen to have just ignored the main thing! he should NEVER have been arrested in the first place!

based on this! He had every LEGAL RIGHT to resit with whatever means was necessary!

"The first strip search of Florence took place in the Burlington County Jail in southern New Jersey. Six days later, Florence had not received a hearing and remained in custody. Transferred to another county jail in Newark, he was strip-searched again.

The next day, a judge dismissed all charges. Florence's lawsuit soon followed.

He still may pursue other claims, including that he never should have been arrested.

Florence, who is African-American, had been stopped several times before, and he carried a letter to the effect that the fine, for fleeing a traffic stop several years earlier, had been paid.

His protest was in vain, however, and the trooper handcuffed him and took him to jail"

Seems the govt was so incompetnet that this had happened many times before and he had even been given a LETTER that stated the fines had been paid! Not his fault the govt is so stupid it can't keep it's system updated!

from this article!;_ylt=AqzNiT2Vj0G6.ostX258rbfzWed_;_ylu=X3oDMTQzY3RzNnNxBG1pdANBcnRpY2xlIFRvcFN0b3JpZXMEcGtnA2RhMjYyY2FhLTBhYjAtMzUwMi04MjA2LWFkMjgzODllZjM1YgRwb3MDNgRzZWMDTWVkaWFTZWN0aW9uTGlzdAR2ZXIDYjZmYjM4OTItN2NmMy0xMWUxLWE3N2UtNDAwZTk5NmQ1ZDUx;_ylg=X3oDMTNjbWVybTJ1BGludGwDdXMEbGFuZwNlbi11cwRwc3RhaWQDNWFmNWQyZWUtMGFhZS0zYmQwLWE2OWYtNjg1MjA3MmExMzI3BHBzdGNhdANidXNpbmVzc3x1cyBlY29ub215BHB0A3N0b3J5cGFnZQR0ZXN0Aw--;_ylv=3

Phillip Baker said...

Just to get it off my chest, once again I mock those brave souls who post stupid things as "anon". That is especially true when they reflexively back any and all law enforcement actions. It's these types who are most often yelling about our troops "dying to defend our right", which they then just toss away.

OK, the heart of this problem is that SCOTUS ruled awhile back that cops can arrest anyone for any offense, no matter how minor. (The case came out of Lago Vista, I think.) One justice- Scalia, I think- noted it would be obnoxious behavior to do so, but still they had the "right". That is the ruling that puts people into this particular trap. 2:50, think you can't be arrested and go to jail if you are just scrupulously law-abiding? A friend blew 0.04 on a breathalyzer and passed the field sobriety test, yet the cop (contrary to law and APD policy) still insisted he "knew" the guy was drunk. So he was arrested, jailed, etc. Sorry all you 2:50's of the world, but you really need to get out of that ivory tower of slavish obedience you live in. You folks are a threat to MY liberties with your eager acceptance of police rule.

Anonymous said...

The final stage of atrophy has fallen upon our judicial system.

Lee said...

Um...Some Legal Scholar needs to clarify this...Scott?

Is what rodsmith correct? Can we actually phisically resist an illegal arrest? That is a slippery slope that can open the door to alot?


Anonymous said...

Right on, Phillip Baker. Where are 2:50 and 5:57?

Sometimes I wonder and also hope they are no more than trolls, like an arsonist that gets some weird kick out of watching the aftermath.

Come back, 2:50 and 5:57, and tell us more.

Gritsforbreakfast said...

Lee, I frequently enjoy reading rod's comments, but I would not advocate relying on his legal advice. :)

rodsmith said...

Your Right of Defense Against Unlawful Arrest
“Citizens may resist unlawful arrest to the point of taking an arresting officer's life if necessary.” Plummer v. State, 136 Ind. 306. This premise was upheld by the Supreme Court of the United States in the case: John Bad Elk v. U.S., 177 U.S. 529. The Court stated: “Where the officer is killed in the course of the disorder which naturally accompanies an attempted arrest that is resisted, the law looks with very different eyes upon the transaction, when the officer had the right to make the arrest, from what it does if the officer had no right. What may be murder in the first case might be nothing more than manslaughter in the other, or the facts might show that no offense had been committed.”

“An arrest made with a defective warrant, or one issued without affidavit, or one that fails to allege a crime is within jurisdiction, and one who is being arrested, may resist arrest and break away. lf the arresting officer is killed by one who is so resisting, the killing will be no more than an involuntary manslaughter.” Housh v. People, 75 111. 491; reaffirmed and quoted in State v. Leach, 7 Conn. 452; State v. Gleason, 32 Kan. 245; Ballard v. State, 43 Ohio 349; State v Rousseau, 241 P. 2d 447; State v. Spaulding, 34 Minn. 3621.

“When a person, being without fault, is in a place where he has a right to be, is violently assaulted, he may, without retreating, repel by force, and if, in the reasonable exercise of his right of self defense, his assailant is killed, he is justified.” Runyan v. State, 57 Ind. 80; Miller v. State, 74 Ind. 1.

“These principles apply as well to an officer attempting to make an arrest, who abuses his authority and transcends the bounds thereof by the use of unnecessary force and violence, as they do to a private individual who unlawfully uses such force and violence.” Jones v. State, 26 Tex. App. I; Beaverts v. State, 4 Tex. App. 1 75; Skidmore v. State, 43 Tex. 93, 903.

“An illegal arrest is an assault and battery. The person so attempted to be restrained of his liberty has the same right to use force in defending himself as he would in repelling any other assault and battery.” (State v. Robinson, 145 ME. 77, 72 ATL. 260).

“Each person has the right to resist an unlawful arrest. In such a case, the person attempting the arrest stands in the position of a wrongdoer and may be resisted by the use of force, as in self- defense.” (State v. Mobley, 240 N.C. 476, 83 S.E. 2d 100).

“One may come to the aid of another being unlawfully arrested, just as he may where one is being assaulted, molested, raped or kidnapped. Thus it is not an offense to liberate one from the unlawful custody of an officer, even though he may have submitted to such custody, without resistance.” (Adams v. State, 121 Ga. 16, 48 S.E. 910).

“Story affirmed the right of self-defense by persons held illegally. In his own writings, he had admitted that ‘a situation could arise in which the checks-and-balances principle ceased to work and the various branches of government concurred in a gross usurpation.’ There would be no usual remedy by changing the law or passing an amendment to the Constitution, should the oppressed party be a minority. Story concluded, ‘If there be any remedy at all ... it is a remedy never provided for by human institutions.’ That was the ‘ultimate right of all human beings in extreme cases to resist oppression, and to apply force against ruinous injustice.’” (From Mutiny on the Amistad by Howard Jones, Oxford University Press, 1987, an account of the reading of the decision in the case by Justice Joseph Story of the Supreme Court.

As for grounds for arrest: “The carrying of arms in a quiet, peaceable, and orderly manner, concealed on or about the person, is not a breach of the peace. Nor does such an act of itself, lead to a breach of the peace.” (Wharton’s Criminal and Civil Procedure, 12th Ed., Vol.2: Judy v. Lashley, 5 W. Va. 628, 41 S.E. 197)

rodsmith said...

next one

Resisting an Unlawful or Illegal Arrest
Can a person resist an illegal Arrest?

303 N.J.Super. 167, 696 A.2d 108

Superior Court of New Jersey,Appellate Division.

STATE of New Jersey, Plaintiff-Respondent,
William J. KANE, Defendant-Appellant.
No. A-4531-95T3.
Argued April 21, 1997.
Decided July 16, 1997

Defendant was convicted in the Manville Municipal Court of disrupting a public meeting and resisting arrest, and he appealed. The Superior Court, Law Division, Somerset County, affirmed, and defendant appealed. The Superior Court, Appellate Division, Brochin, J.A.D., held that: (1) defendant's brief shouts for recognition during public meeting did not violate statute prohibiting disrupting a public meeting, and (2) defendant could not be convicted of resisting arrest when police removed him from the meeting.

rodsmith said...


You May Legally Resist an Illegal Arrest

Posted on January 13, 2012 by Ron Chapman

Share Link

In the case of C.W. versus the State of Florida, a juvenile, whose initials were "C.W.," was arrested for the crime of resisting arrest without violence. The relevant facts of this case are that:

"In this case, the appellate court ruled in C.W.'s favor because:

1. The officers were not engaged in the lawful execution of a legal duty when they initially asked C.W. to step out of the street.

2. Although the officers' initial request that C.W. move a small distance out of the road was a reasonable part of their job as community safety officers, they had no legal duty to insist that C.W. comply with their request and to enforce their insistence by arresting him when the surrounding circumstances failed to warrant such action.

3. There was no evidence that C.W. actually interfered with traffic, and the mere possibility that he might eventually interfere with traffic was insufficient to justify the officers' actions.

The court concluded by stating that "[i]f an arrest is not lawful, then a defendant cannot be guilty of resisting it . . . the common law rule still remains that a person may lawfully resist an illegal arrest without using any force or violence."

rodsmith said...

here's a real good one!

rodsmith said...

and just so you won't think i'm biased. Here's a state that's went the other way! Though how they figure they can override the US Const! i'm not sure!

Resisting an Illegal Arrest

Our system of law is, in large part, derived from our history as an English colony. The bedrock principle of limited government, on which our Constitution is said to be based, comes from the English Magna Carta. One principle that the English common law recognized for over 300 years was the rght to resist unlawful police action. And, although most regular folks would recongize that resisting arrest is probably illegal, they would likely have some problem agreeing with the idea that the cops are free to arrest just anyone they want to. Many Americans would have little criticism for a fellow citizen who resisted an illegal arrest – at least not in principle. So, if you found yourself in the midst of an illegal arrest, could you (not would you) tell the cops to jump in the lake?

You might be a little bolder about this situation if you knew that the United States Supreme Court says that “if the officer had no right to arrest, the other party might resist the illegal attempt to arrest him, using no more force than was absolutely necessary to repel the assault constituting the attempt to arrest.” Then you might cower a little when you found out that the Court said that back in 1900. But, you might feel a little better if you learned that the principle was affirmed in 1948. Since 1948, you’re on your own to guess.

Unless you live in Indiana.

The Indiana Supreme Court recently held that people in Indiana have no right to resist an illegal arrest. Period. You can’t retreat to your home; you can’t deny the cops entry to your home. You comply or you get charged, even if you were never guilty of any crime when the cops first showed up. According to the Indiana Court, it is “unwise to allow an homeonwer to adjudge the legality of police conduct in the heat of the moment”.

Comments are closed.

Anonymous said...

Ya know you gotta give Rodsmith a little credit. These articles and comments are in some respects a dance of complicity by sheeple.

The artocities of government are mounting and it is only a matter of time until it gets ugly.

A return of grassroots and common sense is way overdue. The courts and their "officers" have snowed the common man with bulls**t to the point of rediculousness...
The rule of law goes exactly as far as people buy it and pay their taxes.


A couple hundered years ago people had balls, dumped some tea in the harbor, told the Brits they can go stuff it where the sun don't shine. I ask where are their descendants?

Texans should be even tougher, "Get a rope", fix the problem and ride on...

There is no need for violence, just a common movement toward common sense. Carry the torch as our ancestors did, for our children. Think, in what kind of "State" will they be strip searched or flourish.

Do not discount Rodsmith.

onefluff said...

If you've been at the jail long enough to be moved to population, you've been in jail long enough to get naked. LOL
4realz. Yeah strip searches suck and getting naked in front of strangers can be way awkward, but going to jail is freaking awkward! It's part of the process!

No one is special. Everyone gets searched. It's jail. It's not supposed to be fun.

Anonymous said...

Whether SCOTUS "Okays" or not it is a necessary evil in a jail or prison setting:
Here are just a few reasons why...
Contraband - ie cellphones, drugs
Risk of Harm to self and others with weapons smuggled in.

Anonymous said...

You guys left out juvenile detention facilities. I can count 11 incidents in the past 2 years where major weapons were smuggled in and found by juvenile supervision officers AFTER law enforcement had cleared them. One of them was a runaway from out of state and fired the gun injuring an officer while in the juvenile detention center. The state (TJPC) wrote departments up for "strip searching". Justification shows that it is necessary to maintain the safety of other youth as well as staff in these settings.

rodsmith said...

ahh but ouy both missing the MAIN problem just like the retards at the USSC

he NEVER should have been arrested!

this was the 3 or 4th time it had happned and he had to be released since it was over and done. They had even given him a LETTER PROVING IT WAS PAID!

It's not his fault the retards are too lazy or too friggin STUPID to update the computer! Just how many ILLEGAL ARRESTS are you to submit to before you simply give the keystone cop full warnign that the arrest is unlawful and you can and will be happy to prove it. BUT no arrest will be happening and if said keystone cop doesn't like it. Well then REMOVE THEM! anyway you have to and move on!