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.

Republicans Tout Massive Anti-Obamacare Petition

By Mike Hothi

A collection of Republicans from both chambers touted a massive online petition Wednesday as evidence that the American people are firmly in favor of repealing the Affordable Care Act.

The petition, collected by RepealItNow.Org and presented to lawmakers this week, reportedly contains 1.6 million signatures.

Speaking during a press conference outside the U.S. Capitol, Sen. Jim DeMint (R-S.C.) cited the outpouring of support as evidence that the health care reform law should be overturned immediately, before the Supreme Court weighs in.

“This is not a partisan issue. This is an American issue,” DeMint, standing behind a stack of boxes containing the petition, said. “We cannot wait for the courts.”

The Affordable Care Act was signed into law last year and has been Conservatives’ go-to example for intrusive government under the Obama administration. The Supreme Court will likely determine the constitutionality of the law’s personal insurance mandate before the end of their current term. 

ACLU, Heritage Foundation Weigh In On Supreme Court's Next Term

By Andrea Salazar

Health care reform and Arizona’s immigration law are expected to be two of the major issues the United States Supreme Court tackles during its fall 2011 term starting in October, and legal analysts representing both ends of the political spectrum are expecting victories for their sides.

The American Civil Liberties Union and the Heritage Foundation held dual events in Washington, D.C. Wednesday previewing the upcoming term.

Both organizations touched on the subject of ‘Obamacare’ and agreed that politics must have been involved in the decision to forgo appealing a lower court’s ruling deeming the health care reform law’s individual mandate unconstitutional.

However, Paul Clement, former U.S. solicitor general and partner at Bancroft PLLC, said the question of the mandate’s constitutionality is only the beginning.

“A lot of the focus has been on the individual mandate, but the individual mandate is the tip of the constitutional iceberg when it comes to this case,” he said, “Because you have the question of whether or not the individual mandate is constitutional, if the individual mandate is, in fact, not constitutional, then you have the question of what effect does that have on the rest of this remarkably long and remarkably multifarious statute.”

The ACLU has not officially released an position on the matter, but its legal director, Steven Shapiro, said the mandate falls under the commerce clause and is, therefore, constitutional.

As for Arizona’s immigration law, the constitutionality of which could impact “copycat” laws in states like Georgia, Alabama, Utah, Indiana and South Carolina, Clement says that the administration may face challenges trying to make its case.

“The burden’s on the federal government to explain why it is that immigration is sufficiently different from every other area of the law that a state can’t effectively try to enforce the federal substantive law,” Clement said.

The ACLU’s Omar Jadwat, however, argued that S.B. 1070 goes beyond a federal versus state issue but also has major civil rights implications.

“It’s reminiscent of Jim Crow laws,” Jadwat said, explaining that penalties for being unable to prove one’s legal status creates a system where “certain people are essentially not persons.”

Rulings on the cases the Supreme Court accepts are expected in late June.

Obama Pushes Senate To Pass Disclose Act

With the August recess just around the corner, President Barack Obama urged the Senate Monday to pass an upcoming bill aimed at revealing entities responsible for funding respective campaign ads meant to influence elections.

The announcement comes in response to the Citizens United v. Federal Election Committee, where the Supreme Court ruled in a 5-4 vote that corporate funding, both foreign and domestic, of independent political broadcasts in candidate elections cannot be limited under the First Amendment and the source of income for each broadcast is not obliged to reveal itself.

“These shadow groups are already forming and building warchests of tens of millions of dollars to influence the Fall elections,” Obama said. “Now, imagine the power this will give special interests over politicians.”

The president argued that these corporations will have overwhelming influence over the way Congressmen are voting threatening them with an “onslaught of negative campaign ads” if they do not vote a certain way.

The Disclose Act is a bill Obama said would change this before November’s midterm elections, requiring campaign ads to name their source of funding. Foreign contributors would also be restricted from spending money to influence American elections.

“Nobody is saying you can’t run the ads, just make sure the people know who, in fact is behind financing these ads,” he said.

Obama pushed Senate Republicans to discontinue efforts in preventing this measure from progressing and to vote to pass this legislation when it arrives at the Senate for vote Tuesday.

“This should not be a Democratic issue or a Republican issue, this is an issue that goes to whether or not we’re going to have a government that works for ordinary Americans, a government of, by and for the people,” Obama said. “That’s why these reforms are so important and that’s why I urge the Senate to pass the Disclose Act.”

Kagan One Step Closer

Solicitor General Elena Kagan has the Supreme Court in her sights after the Senate Judiciary Committee voted 13-6 to forward her nomination to the full Senate.

The committee voted largely along party lines, however, one rogue Republican broke the trend and voted in support of Kagan’s nomination, Sen. Lindsey Graham (S.C.).

Graham said that although Kagan would not have been his first choice, President Barack Obama “chose wisely.”

President Obama applauded the committee for endorsing his nomination and credited it for giving Kagan time to make her case. Sen. Jeff Sessions (R-Ala.) said after Tuesday’s vote that Senate Judiciary Committee Chairman Sen. Patrick Leahy (D-Vt.) was “fair” in giving Republican  members extra time to question the president’s nominee.

Kagan is expected to be confirmed by the full Senate and a vote should come before the August recess so she can be seated as Supreme Court Justice before the court’s next session beginning in October.