Supreme Court Considers Limits On Strip Searches After Arrest

The Supreme Court Tuesday heard arguments that it is unconstitutional to strip search someone who is arrested without reasonable suspicion that the person might be carrying contraband. The case stems from a 2005 arrest of Albert Florence during a traffic stop. The police computer showed Florence as having an outstanding warrant for failure to pay a fine even though Florence had paid it and had in his possession court documents showing he had paid it.

Nevertheless, the Burlington County, New Jersey police officer arrested Florence, who was held in jail for 6 days before he was taken before a judge who ordered him released. Florence was strip searched in Burlington County and went through the same process after being transferred to Essex County.

In the Court today, Florence’s lawyers argued that the Fourth Amendment to the Constitution, which prohibits unreasonable searches and seizures, prohibits police from carrying out a strip search or other similarly-invasive search without reasonable, individualized suspicion that the person is carrying contraband.

Lawyers for the two counties argued that such searches are necessary to prevent weapons and drugs from entering the jails, pointing out that someone arrested on a minor offense could pass drugs to a more serious offender after being admitted to the general jail population. Further, they argued that the jails do not have the time or manpower to evaluate each arrestee, and the simple policy of searching everyone is easier to implement.

The Justices all seemed to agree that strip searches should be permissible for some offenders, such as those arrested for violent crimes. Florence’s lawyer argued that the arrest charge could serve as the reasonable suspicion justifying the search, meaning those people could be searched automatically, while police would need to show an additional justification for searching someone arrested on a minor offense.

Justice Stephen Breyer seemed especially skeptical of Burlington’s claim that the searches were necessary. He repeatedly referred to a California study that found that in only one instance, out of 26,000 arrestees, contraband would have been allowed into a prison if the prisons operated on a reasonable-suspicion standard for strip searches.

Even if the Justices agree with Florence that some kinds of searches require extra justification, they will still have to decide which kinds of searches are allowed, and that might be the hardest part of the case. Florence’s lawyer said that it would be constitutional for prison guards to watch a prisoner shower, for safety reasons, but an inspection of the prisoner’s genitals from arm’s length would be unconstitutional. Justice Sonia Sotomayor and others were skeptical of the distinction, asking why it would be fine for a guard to observe the prisoner naked from five feet away but not from two feet away.

One thing everyone—including Burlington’s lawyer—seemed to agree on was that allowing arrests for minor offenses, such as traffic violations or eating food in Washington’s subways, creates a host of constitutional and practical problems. Justice Sotomayor said that arrests for violations like this were “unsettling.” Burlington’s lawyer agreed, but he said the only question before the Court is the treatment of people after the arrest has already occurred.

The case will likely be decided later this year.

High Court Strikes Matching Funds For Publicly Financed Campaigns

In a 5-4 decision, the U.S. Supreme Court Monday struck down an Arizona law that provides matching funds to publicly-financed candidates when a privately-financed candidate, or third party groups supporting him, spend more money than the publicly-financed candidate was given.

Under the law, the publicly-financed candidate is given money to match the other candidate’s spending.

Writing for the majority, Chief Justice John Roberts said that providing funds to a candidate’s opponent is a burden on the political speech of the privately-financed candidate, and therefore the law violates the First Amendment. Unlike other laws the Supreme Court has struck down, the Arizona law directly gives money to candidates instead of raising contribution limits. This means that if a privately financed candidate raised $1,000 at a fundraiser, each of his opponents would receive $940.

Because a candidate would need to consider the benefit his opponents would receive before releasing a campaign ad, Roberts said, the system burdens political speech and is therefore unconstitutional.

Justice Elena Kagan, writing on behalf of herself and the Court’s liberal wing, pointed out that the Arizona scheme was passed by Arizona voters via referendum, and it was intended to combat real corruption in Arizona state offices.

She said that the law was an attempt to lessen the influence of big donors, and she noted that the initial grant of money was designed to be about as much as a candidate would likely need for a given race. Only if the privately financed candidate exceeded that amount would the other candidates receive additional money.

While Chief Justice Roberts called the scheme a “burden on political speech,” Kagan said that it “promotes the values underlying both the First Amendment and our entire Constitution by enhancing the opportunity for free political discussion.”

In his opinion, Roberts affirmed previous rulings which found that public financing “can further governmental interests, such as … preventing corruption,” but said that the Arizona law went too far.

The case was Arizona Free Enterprise Club v. Bennett.

Supreme Court Frags California Violent Video Game Regulation

As had been expected by court watchers, the Supreme Court Monday said that California cannot outlaw sales of violent video games to minors. In an opinion by Justice Antonin Scalia, the Court ruled that video games are protected by the Constitution’s First Amendment, and California had not adequately justified infringement of games’ protections of free speech.

Announcing the decision, Scalia pointed out that the arguments being raised against video games have also been brought against motion pictures, comic books and “penny dreadful” novels, and yet no one had ever shown a causal link between violent media and actual violence.

Scalia noted that the California law did nothing to regulate Saturday-morning Bugs Bunny cartoons or violent children’s stories like Grimm’s Fairy Tales, Snow White (in which the wicked queen is forced to dance in red hot slippers until she dies), Cinderella (in which the evil stepsisters have their eyes picked out by doves), or Hansel and Gretel (in which the children bake their captor in an oven). The singling out of video game violence, Scalia said, shows the law is unconstitutionally underinclusive, prohibiting some violent media while ignoring other.

Further, Scalia said the law allowed parents to buy the games for their children, so the state did not fully prohibit children from having the games.

Justice Scalia recognized that the Supreme Court has in the past allowed age-specific regulations of speech, but only for pornography. He said that pornography regulations for children were allowed, since our country has a long history of outlawing obscenity, and pornography regulations are adjustments of obscenity laws with different standards for children.

The Court’s decision was 7-2, with Justices Clarence Thomas and Stephen Breyer writing dissents. Thomas, writing only for himself, said that the First Amendment did not protect a right to speak to minors without their parents’ consent, so he would have upheld the law.

Breyer, also writing for himself, said that California had a compelling state interest in helping parents control their children’s access to violent video games. In his opinion, he included a list of peer-reviewed articles that he says show a link between violent video games cause psychological harm to minors.

Justice Samuel Alito and Chief Justice John Roberts did not sign on to the majority opinion, but they agreed that the law is unconstitutional. Alito wrote separately to say that California’s law does not define “violent video games” clearly enough for game makers to know what is allowed and what is not, and therefore the law is unconstitutionally vague. Alito also said he thought the majority too easily dismissed argument that video games are different from other media

Supreme Court Opens Door For Reduced Sentences In Plea Agreement Cases

The Supreme Court Thursday ruled that defendants sentenced under plea agreements can ask a court for a reduced sentence if the federal sentencing guidelines for their crimes are reduced. Under federal law, a judge-imposed sentence can be reduced if the guidelines change, and today’s Court decision expands that option to defendants sentenced according to a plea agreement.

William Freeman was indicted in 2005 for possessing cocaine base. Under federal sentencing guidelines, he would have been sentenced to a minimum of 108 months in prison, and he agreed to plead guilty in exchange for a recommendation that he serve that minimum.

In 2007, the federal guidelines reduced that minimum by 9 months in order to bring it in line with the sentences for powder cocaine. Under federal law, Freeman would have been entitled to ask a court to reduce his sentence if a judge had picked the length instead of approving a plea agreement.

Five Justices today said that Freeman should still be allowed to request a lowered sentence, though only four would allow such requests in all circumstances. Justice Sonia Sotomayor, the only Supreme Court Justice who has worked as a trial judge, wrote separately to say that only defendants who explicitly say that their plea agreements are based on the federal sentencing guidelines should be allowed to ask for a reduction.

Chief Justice John Roberts, writing for himself and three other Justices, dissented, saying that the agreements are discussed and agreed upon by all parties in a case, and he wrote that there is no basis in federal sentencing law for upsetting that agreement.

The case was Freeman v. US.

Supreme Court Strikes Down Law Protecting Prescription Records

The Supreme Court ruled Thursday that pharmaceutical companies have a First Amendment right to market to doctors based on what drugs the doctors prescribe, and a Vermont law prohibiting pharmacies from selling prescription records infringes on that right.

In a 5-4 decision, the Court said that the Vermont law, because it only applies to records being sold to marketers, is unconstitutional content- and speaker-based discrimination. Under the law, pharmacies could still sell the records to researchers.

The records show which doctors prescribed which drugs. They do not include patients’ names, since that information is protected by federal law.

Another provision of the law prevented marketers and data mining companies from using prescriber information—if, for example, they obtained it from a researcher—and the Court also struck that down.

Vermont argued that doctors had asked the state to protect their privacy and protect them from aggressive marketing from pharmaceutical companies.

The state also said it had an interest in keeping health care costs down by encouraging doctors to prescribe generic drugs instead of brand-name versions. The pharmaceutical companies said it was unfair to allow the state to push generics while preventing the companies from responding.

In a dissent, Justice Stephen Breyer, writing for the four liberal Justices, said that the Supreme Court has used a lower standard of review in the past when considering regulations of “commercial speech,” and under that balancing approach, Vermont’s law should have been upheld.

The case was Sorrell v. IMS Health.