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The group, joined by the national American Civil Liberties Union, is appealing to the nation’s highest court to reverse last fall’s decision by the Third Circuit Court of Appeals in favor of the Burlington and Essex County prisons, reversing a previous ruling by U.S. District Judge Joseph H. Rodriguez that authorities had gone too far – given that they had no cause to think that Albert Florence was carrying any contraband.
Florence, a car leasing manager, spent six nights in the Burlington County Jail and another in the Essex County Jail. Authorities at both facilities strip-searched him before a judge ruled that he was mistakenly arrested.
To this point, courts have been divided on the question. Most appeals panels have found the searches unconstitutional, given that those who’ve complained were defendants charged with minor offenses and not convicts. But a string of recent rulings have supported the security move.
Jail administrators say any weapons found during the searches actually protect the protesting inmates.
But the ACLU and others say blanket strip searches involving people not suspected of carrying anything not only violate New Jersey law but the U.S. Constitution, as well.
“A strip search is a demeaning and humiliating experience for anyone,” said Ed Barocas, Legal Director for the ACLU-NJ. “But strip searching every detainee is unconstitutional and results in intrusions without justification.
“Strip searching a person who is in jail for minor offenses, such as unpaid traffic tickets, does not increase security at a jail. It has been proven in this state and other states that removing blanket strip searches does not compromise jail security.”
The New Jersey ACLU filed an amicus brief on behalf of former New Jersey Attorneys General Robert J. Del Tufo, Deborah T. Poritz, John J. Farmer Jr., Peter C. Harvey and Zulima V. Farber, defending Florence’s privacy and Fourth Amendment rights .
The brief argues that the blanket strip search policies violate New Jersey law, the Attorney General’s Strip Search Requirements policy, Department of Corrections’ regulations and standards accepted by the American Bar Association, as well as the Constitution.
Florence was mistakenly taken into custody in March 2005 on an unpaid traffic ticket warrant that had been dismissed two years earlier.
Rodriguez ruled in February 2009 that the strip searches that followed violated the Constitution. The judge held that, for people arrested on non-indictable offenses, corrections officials must have reasonable suspicion that contraband will be found first.
It’s important to note that the standard of reasonable suspicion still allows prison officials to use broad discretion in determining if a strip search is necessary.
Officials with Burlington and Essex counties appealed the decision to the Third U.S. Circuit Court of Appeals, which acknowledged the intrusiveness of the search but rejected a reasonable suspicion standard and held that blanket strip search policies are not unreasonable under the Fourth Amendment.
The ACLU-NJ’s brief to the U.S. Supreme Court argues that using a standard of reasonable suspicion to conduct searches strikes the appropriate balance between maintaining security in the jail and the substantial invasion of privacy caused by strip searches.
“Being forced to strip naked is a humiliating experience, and people charged with minor crimes shouldn’t be strip searched unless there’s a legitimate reason to think they’re hiding something,” said David Fathi, director of the ACLU National Prison Project.
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