This morning the US Supreme Court heard arguments in Florence v. Board of Chosen Freeholders. While it sounds like a witchcraft trial, this is actually a case that asks whether or not the 4th Amendment restricts a jailor’s ability to strip search prisoners without any particular suspicion that the prisoner might smuggle contraband into the facility.
To be sure, Mr. Florence’s story is a case study in the dignity-crushing ambivalence of a broken judicial process. I heard the details on NPR, but the short version has Mr. Florence on a drive with his family, taken to jail under a mistaken warrant, strip searched in one jail, held for a week without hearing, then transferred to another jail, strip searched again, then finally released when his wife was able to get a lawyer involved. Of the many wrongs suffered by Mr. Florence, only the strip searches are before the Court in this case.
But how much more tragic would his story have been had Mr. Florence–unjustly kidnapped from his family by a heedless county government–been killed or injured due to the presence of contraband in the jail?
When I hear the appalling facts of this case, I think, “That could have been me. I too could have had my liberty stolen from me because of a simple key stroke error.” I think about the time of separation from my family. I think about what it would be like to wake up and wonder if today would be the day that sanity returned to the world. Perhaps most disturbing, I think about what it would be like to close my eyes the night before, and wonder if any of my fellow prisoners might decide that I should not wake up the next morning. I think I would be glad for my strip search then.
We live in a world where, yes, every so often the system fails, and the wrong people end up behind bars. And in that world, I would prefer a 4th Amendment rule that made it more difficult for the county to imprison the citizenry. Perhaps the jailor should have a particularized suspicion just to put people into a cell in the first place. (See Orin Kerr’s comparison of this case to Atwater v. City of Lago Vista at SCOTUSblog; in that case, the Court found that the 4th Amendment does not prohibit arrest for minor infractions.) But if you, me, or one of my children should end up unjustly incarcerated, I hope that the 4th Amendment will not prevent the jailor from making the cage as safe as possible.