John Whitehead's Commentary
Grasping for Dignity in the Era of the American Police State
“The Fourth Amendment was designed to stand between us and arbitrary governmental authority. For all practical purposes, that shield has been shattered, leaving our liberty and personal integrity subject to the whim of every cop on the beat, trooper on the highway and jail official.”—Herman Schwartz, The Nation
During a routine traffic stop, Leila Tarantino was allegedly subjected to two roadside strip searches in plain view of passing traffic, while her two children—ages 1 and 4—waited inside her car. During the second strip search, presumably in an effort to ferret out drugs, a female officer “forcibly removed” a tampon from Tarantino. No contraband or anything illegal was found.
A North Carolina public school allegedly strip-searched a 10-year-old boy in search of a $20 bill lost by another student, despite the fact that the boy, J.C., twice told school officials he did not have the missing money. The assistant principal reportedly ordered the fifth grader to disrobe down to his underwear and subjected him to an aggressive strip-search that included rimming the edge of his underwear. The missing money was later found in the school cafeteria.
Suspecting that Georgia Tech alum Mary Clayton might have been attempting to smuggle a Chik-Fil-A sandwich into the football stadium, a Georgia Tech police officer allegedly subjected the season ticket-holder to a strip search that included a close examination of her underwear and bra. No contraband chicken was found.
Sixty-nine-year-old Gerald Dickson was handcuffed and taken into custody (although not arrested or charged with any crime) after giving a ride to a neighbor’s son, whom police suspected of being a drug dealer. Despite Dickson’s insistence that the bulge under his shirt was the result of a botched hernia surgery, police ordered Dickson to “strip off his clothes, bend over and expose all of his private parts. No drugs or contraband were found.”
In Chicago, a 15-year-old boy accused by an anonymous tipster of holding drugs was taken to a locker room by two security guards, a Chicago police officer, and a female assistant principal, and made to stand against a wall and drop his pants while one of the security guards inspected his genitals. No drugs were found.
Four Milwaukee police have been charged with carrying out rectal searches of suspects on the street and in police district stations over the course of several years. One of the officers is accused of conducting searches of men’s anal and scrotal areas, often inserting his fingers into their rectums. Half-way across the country, the city of Oakland, California, has agreed to pay $4.6 million to 39 men who had their pants pulled down by police on city streets between 2002 and 2009.
Thirty-eight-year-old Angel Dobbs and her 24-year-old niece, Ashley, were pulled over by a Texas state trooper on July 13, 2012, allegedly for flicking cigarette butts out of the car window. Insisting that he smelled marijuana, the trooper proceeded to interrogate them and search the car. Despite the fact that both women denied smoking or possessing any marijuana, the police officer then called in a female trooper, who carried out a roadside cavity search, sticking her fingers into the older woman’s anus and vagina, then performing the same procedure on the younger woman, wearing the same pair of gloves. No marijuana was found.
What these incidents show, as varied as they are, is that while strip searches may span a broad spectrum of scenarios, the common denominator remains the same: humiliation and degradation at the hands of government officials and a complete disregard for privacy and human dignity. Unfortunately, in a judicial and bureaucratic environment in which human dignity has been given short shrift and largely discounted, the courts have increasingly erred on the side of giving government officials—especially the police—vast discretion in carrying out strip searches for a broad range of violations, no matter how minor the offense and no matter how degrading, demeaning or offensive to one’s human dignity the search is.
Indeed, the U.S. Supreme Court has been increasingly deferential to the state when addressing the constitutionality of strip searches. For example, the Court’s ruling in Florence v. Bd. of Chosen Freeholders of County of Burlington (2012) struck a blow to any long-standing protections against blanket strip searches, declaring that any person who is arrested and processed at a jail house, regardless of the severity of his or her offense (i.e., they can be guilty of nothing more than a minor traffic offense), can be subjected to a strip search by police or jail officials without reasonable suspicion that the arrestee is carrying a weapon or contraband. The five-man majority rationalized their ruling as being necessary for safety, security and efficiency, the government’s overused and all-too-convenient justifications for its steady erosion of our freedoms since 9/11.
The Florence ruling stemmed from the case of Albert Florence who was erroneously arrested for failing to pay a traffic fine and forced to submit to two egregious strip and visual body-cavity searches at two different county jails.
In a nutshell, what Justice Anthony M. Kennedy, writing for the majority, concluded was that it is impractical—“unworkable” was the phrase used—to expect overworked jail officials to have to take the time to distinguish between harmless individuals guilty of nothing more than driving without a seatbelt and those who pose a true threat and may be reasonably suspected of carrying drugs or weapons. Consequently, any person who is arrested, no matter how minor the alleged criminal act, can now be subjected to a degrading strip search. Examples of minor violations which could now lead to a strip search are many and include “violating a leash law, driving without a license and failing to pay child support.”
These blanket strip searches are not for the faint of heart. A typical strip search, as described in a prison manual and cited by Justice Stephen Breyer in his dissent, involves:
a visual inspection of the inmate’s naked body. This should include the inmate opening his mouth and moving his tongue up and down and from side to side, removing any dentures, running his hands through his hair, allowing his ears to be visually examined, lifting his arms to expose his arm pits, lifting his feet to examine the sole, spreading and/or lifting his testicles to expose the area behind them and bending over and/or spreading the cheeks of his buttocks to expose his anus. For females, the procedures are similar except females must in addition, squat to expose the vagina.
In the past, strip searches were resorted to only in exceptional circumstances where police were confident that a serious crime was in progress. In recent years, however, strip searches have become routine operating procedures in which everyone is rendered a suspect and, as such, is subjected to treatment once reserved for only the most serious of criminals.
Making matters worse, government agencies are increasingly exploiting cutting-edge technologies that allow probing and examination of the intimate aspects of persons that is for all intents and purposes equivalent to the excessive intrusion inflicted by a strip search.
Clearly, we have a long way to go in securing our privacy rights. It must be remembered that the Fourth Amendment to the U.S. Constitution was intended to protect the citizenry from being subjected to “unreasonable searches and seizures” by government agents. While the literal purpose of the amendment is to protect our property and our bodies from unwarranted government intrusion, the moral intention behind it is to protect our human dignity. Unfortunately, the rights supposedly guaranteed by the Fourth Amendment have been steadily eroded over the past few decades. Court rulings justifying invasive strip searches as well as Americans’ continued deference to the dictates of achieving total security have left us grasping for dignity.
In pushing back against the state in order to secure our essential rights, we must place our human dignity in a position of primary importance. Writing for the Wisconsin Law Review, attorney John D. Castiglione proposes that human dignity, as defined, should stand alongside privacy as a primary animating principle of the Fourth Amendment. As Castiglione rightly points out:
While it is widely accepted that situations occur in which a person may cede, be legitimately stripped, or simply not have any privacy whatsoever, dignity (as I have attempted to define it here) is an inherent possession of every person, regardless of circumstance. Dignity is an immutable value, held in equal measure at all times by all people, a quality privacy does not share. Dignity arises at birth (perhaps even before) and continues until death (and perhaps even after). Indeed, of all core constitutional values, dignity is perhaps the only one that cannot be legitimately stripped entirely by the state under any circumstance. The state can take a person’s life, his liberty, or his property, all of which are accepted under the Constitution given sufficient justification. However, one would be hard-pressed to argue that the state has any interest whatsoever in attempting to strip a person entirely of his dignity.