Magna Charta Anniversary Essay #3: Strip Searches

Timothy McVeigh and Albert Florence

by Mary W Maxwell

One day, in 2003, Mr Albert Florence did something he shouldn’t have done in New Jersey. Namely, he was DWB, “driving while Black.” This led to a fine, which he paid promptly, in 2003.  Again in 2005 he committed DWB. Or, if you want to be precise, it was RWB, riding while Black; his wife was actually the one at the wheel and he was in the passenger seat.  The state trooper phoned HQ, and was told there was an arrest warrant for Albert for that unpaid fine (which he had paid).  He was taken to jail and asked to strip. Later he was moved to another jail where the frolic is repeated.

“Frolic”? I don’t know what to call it; you know what I am referring to. I intend here to avoid all description of the humiliation Albert Florence endured. Granted, humiliation, and even trauma, is part of the case he presented to United States Supreme Court.

But there’s no need to tarry over the emotional aspects; the Bill of Rights says no such thing will ever happen to an American. Right? The Court’s job was to clarify what the law says. Not that the wording needs much clarification — it’s already in plain English:  Behold the Fourth Amendment to the Constitution:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation….”

Fully 800 years ago, people had decided that such an incursion by government was not to be tolerated. Magna Charta put it this way (in Latin, but later translated):

“No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.” (Remember Albert Florence had duly paid his fine.)

In 1979, in Bell v Wolfish, the Supreme Court was asked to rule on the constitutionality of a strip search of a prisoner. Even without knowing about that case, you can deduce that SCOTUS must have OK’d the strip search, since, as seen on TV dramas, strip-searching is commonplace.

(“Scotus” is the acronym for The Supreme Court Of The US.)

Ever since Marbury v Madison in 1803, the role of the Supreme Court has been “to state what the law is.” SCOTUS interpreted the Fourth Amendment to say there ARE times when a strip-search is allowable. Bell v Wolfish became precedent for that.

Let’s see: how can this be? We were given certain rights. (Oops, pardon me, I don’t believe we are ever ‘given’ a right. It’s not an entity. Rather, we agreed that we will prohibit the State from hurting us, no matter what it takes. Yeah, man!)

Granted, we acknowledged that a circumstance may arise in which the society as a whole believes a right must give way, for a good purpose. Sometimes this is built into the Right.

Even the Fourth Amendment has the built-in exception that a search of a person’s home may be authorized, and a seizing of the person may occur, as long as the safeguard of obtaining a judicial warrant (probable cause that it’s worth doing) is followed.

Yet strip-searches in jails are now ‘policy’ in about 30 of the 50 states! In the case at hand, as in Bell v Wolfish, the argument proffered is that it’s for “the good of all” that a prisoner be given an intimate search, if he is coming in from the outside.

He may be bringing in contraband, such as drugs. Or he may have a weapon up his kazoo, with which to harm other prisoners or staff. What rubbish. The purpose of power is power.

As mentioned, Albert Florence sued the jail. He’d already ‘won’ in the federal district court, insofar as they noted that he had no charges pending against him so he shouldn’t have been arrested.  His attorneys then asked the Supremes to rule on just one question: the constitutionality of strip searches of people accused of minor offenses.

One judge has already said that a prisoner has “diminished expectations of privacy.” Sure, that’s true. I know that I may someday be arrested and, yes, I expect in jail that I would suffer many losses of privacy. For example, guards could legally enter my ‘bedroom,’ my cell, while no one can legally enter my bedroom at home. But that is just a physical fact of my being in jail instead of being at home.

I definitely don’t think ‘loss of privacy’ would have to extend to orifices of my body, thank you. Forget the ‘diminished-expectations’ logic; it perverts the Bill of Rights. The Bill of Rights cries out “Never let your expectations be diminished, Boys and Girls. That is a slippery slope you mustn’t get on.”

Context, Context, Context

The following list of context items is Mary’s rant, not legal scholarship, OK? A court case has in it more than just the specific legal factors. Look around at the surrounding context.

Context Item 1. Everybody knows there is major drug trafficking in jail. Well, then, it must be something the prison system condones. Thus there be no point dramatizing make-believe horror at the prospect of drugs-in-jail, in order to justify strip searches.

Context Item 2. Everybody knows that weapons can be tiny and concealed. Not every weapon is a shoulder-held missile. Couldn’t the prisoner bring in one of those cute poisons that the CIA uses? He could sew it into the hem of his jeans, making the strip search a waste of effort.

Context Item 3. I realize this one could be a touch intellectually advanced for SCOTUS, but here goes: There is no need to adhere to Bell v Wolfish. It mattereth not what the SCOTUS judges said in that case. The highest court in the land is never bound by any other court’s precedents, not even its own. Fresh thinking is allowed.

Context Item 4. Speaking of drugs-in-jail, how would the prisoner on furlough have acquired them from the street?

Where do drugs come from? Sure we know, heroin comes from Asia and cocaine from Latin America, but how do those things pass through Customs? Reporters have discovered how it is done: Bush and Clinton personally arranged it! So why doesn’t SCOTUS issue a bench warrant for the arrest of those two? (Come on, Sonia, do it!)

Context Item 5. Back to the worry that a prisoner, harboring a gun up his kazoo, might use it to harm staff, don’t staff carry Tasers? Aren’t many prisoners forced to wear stun belts so that a recalcitrant jailee can be electroshocked remotely by the guard in the Panopticon? There is nothing more vulnerable than a prisoner, even an armed one, since all you need to do is turn on the Taser to bring him to the ground.

Context Item 6. Abu Ghraib. Everybody knows that the ‘sexual humiliation’ we practice in Iraq has nothing to do with ‘interrogation,’ in the sense of eliciting information, as the CIA standardly uses sodium amytal to pry information out of a person. The point of humiliation is humiliation. (Wayne Madsen says the searches are filmed for porn).

I believe the court knows why it’s supposed to say that strip searches are “constitutional.” The day cometh when it will be necessary to break us all down by demoralization. SCOTUS is merely greasing the skids.

Anyway, the Great Nine reached a decision in Albert Florence’s case.  It was 5 to 4, with Judge Anthony Kennedy writing the majority opinion. They held that the jailers’ need is paramount. God help us. The exact opposite of what the law says.

They opined: “People detained for minor offenses [such as parking violations] can turn out to be the most devious and dangerous criminals.” You’d never guess who they named as an example of that: the late Timothy McVeigh, ‘the OKC bomber,’ who was stopped by cops for a bad licence plate.

Context Item 7: McVeigh did not do the OKC bombing. Every man and his dog and cat knows that the FBI did it.

We are in serious trouble. Better get out your copy of the Magna Charta and start USING it.

— Mary W Maxwell is a regular writer for Gumshoenews.com. She can be contacted, before it’s too late, at her website: ProsecutionForTreason.com.