Transcript: SCOTUS oral argument of Thomas Goldstein on jail strip searches
Albert W. Florence v. Board of Chosen Freeholders of the County of Burlington, et al
Supreme Court Oral argument of Thomas C. Goldstein on behalf of the petitioner on Wednesday, October 12, 2011:
MR. GOLDSTEIN: Mr. Chief Justice, may it please the Court: We ask this Court to hold that a jail may strip search an arrestee in cases of reasonable suspicion. That is the rule that was applied throughout almost the entire country in the three decades after Bell v. Wolfish, without either administrative difficulty or any apparent increase in smuggling. We’re here today, of course, because both the Burlington Jail and the Essex County Jail require every arrestee to stand 2 feet in front of a correctional officer and strip naked.
JUSTICE GINSBURG: Do you apply the reasonable suspicion rule to all arrestees? I thought you were making a distinction between felons and less serious offenders.
MR. GOLDSTEIN: We do apply it to all arrestees. The Respondents and the U.S. Bureau of Prisons do draw a line at major versus minor offenders.
I think they do that because they think that people who commit more serious crimes might be inclined to greater criminality. But our rule is one of reasonable suspicion. Our question presented draws a line at minor offenders because this class definition is only people who were arrested for minor offenses.
JUSTICE KENNEDY: Is the reasonable suspicion test more easily met if it’s a felon detained for a serious felony?
MR. GOLDSTEIN: It is in the view of the courts that have considered this question, absolutely.
In our view -
JUSTICE KENNEDY: In your — in your view?
MR. GOLDSTEIN: Yes. Yes, and, in fact -
JUSTICE KENNEDY: Well, then you are going on a case-by-case basis based on the offense.
MR. GOLDSTEIN: The category — there is a categorical rule, and that is — that was adopted by these Respondents, by the Bureau of Prisons, and four court of appeals, that says if you were arrested for a more serious offense, categorically there exists reasonable suspicion. Our case-by-case rule, it’s true, applies with respect to minor offenders. And, again, that’s the class that was defined here.
JUSTICE ALITO: Well, how would this work with respect to individuals who have been arrested for serious offenses? Let’s say someone has been arrested for — for assault. Say it’s a case of domestic violence, assault. Would that be enough to justify a search?
MR. GOLDSTEIN: I think you will have to ask — I know you want me to answer the question. Let me just be very clear. This is their rule. The Respondents draw the major/minor offense line. The Respondents apply a reasonable suspicion standard. Now, in my view -
JUSTICE ALITO: No, I understand. You say that you don’t want to draw that line; you want to apply it to -
MR. GOLDSTEIN: Yes.
JUSTICE ALITO: — to everybody, and I’m asking you whether the mere fact that someone has been arrested for a violent offense would in your judgment be sufficient to provide reasonable suspicion.
MR. GOLDSTEIN: If the jail made that judgment, we would think that a court would not overturnthat judgment. We think that illustrates that, by contrast to when someone is arrested for not paying a fine, that there is no justification whatsoever, because the logic of their own policy is that this is a person who’s inclined to violence -
JUSTICE KENNEDY: But I take it — I take it what we’re trying to do is to protect the individual dignity of the detainee. But it seems to me that you risk compromising that individual dignity if you say we have reasonable suspicion as to you, but not as to you. You’re just setting us up, and you’re setting the detainee up for a classification that may be questioned at the time and will be seen as an affront based on the person’s race, based on what he said or she said to the officers coming in.
MR. GOLDSTEIN: Right.
JUSTICE KENNEDY: And so, it seems to me that your rule imperils individual dignity in a way that the blanket rule does not.
MR. GOLDSTEIN: Well, a couple of points, Justice Kennedy. I think it’s an incredibly important issue. They don’t have a blanket rule. Remember, the Respondents apply a reasonable suspicion standard. They do strip everyone naked, but if they’re going to look for contraband — that is, look at the person’s mouth,look at their anus — they apply a reasonable suspicion standard.
Now, to your very serious concern that maybe we are inviting discrimination or at least an appearance of discrimination, remember that their rule is going to produce more of that problem than ours, because their rule is not that they have to strip search — they have to strip search everyone for contraband, but their rule is they can. They can make a choice.
This Court in the Fourth — they say we -
JUSTICE KENNEDY: Well, I’m not sure if it’s their rule or our rule. Ultimately, it’s going to be our rule.
MR. GOLDSTEIN: Yes, okay. Well, then -
MR. GOLDSTEIN: First let me say I hope not.
I hope that your rule is that there has to be a reasonable suspicion standard, which is the rule that was applied almost everywhere in the wake of Bell v. Wolfish, without -
JUSTICE GINSBURG: To do — to do what?
MR. GOLDSTEIN: Yes.
JUSTICE GINSBURG: You just said that strip naked is different from a strip search.
MR. GOLDSTEIN: Yes, exactly.
JUSTICE GINSBURG: So, what is permitted? There are various things. One is showering in the presence of officers?
MR. GOLDSTEIN: Showering in the presence of officers is not something that requires reasonable suspicion. The courts have uniformly concluded that if you are just generally in an area in which you’re being monitored by the officers, that’s not a Fourth Amendment search that violates a reasonable expectation of privacy. This is different.
JUSTICE GINSBURG: They — they can be inspected without their clothes; just nothing more than that?
MR. GOLDSTEIN: There are two different scenarios. One is a common room where everyone is standing around, and for jail security purposes -
JUSTICE KENNEDY: A common?
MR. GOLDSTEIN: A common room, a common shower area. And, of course, for security purposes.
This is different, Justice Ginsburg. You asked what’s prohibited in the absence of reasonable suspicion. What’s prohibited is standing 2 feet away from the person -
JUSTICE GINSBURG: No, I want to know what’s permitted.
MR. GOLDSTEIN: Yes, what is permitted is anything — what is not subject to a reasonable suspicion standard is anything other than looking at - a close inspection of the person at arm’s length. What the courts of appeals have uniformly recognized, in the lower Federal courts, what the literature recognizes and really what I think concerned this Court in the Safford case is that when you are standing so close to the person inspecting their genitals, looking directly at their most private parts of their bodies, that is a direct intrusion on their individual privacy -
JUSTICE SOTOMAYOR: I’m sorry. Are you –are you suggesting three different levels? Stripping naked: It’s okay to stand 5 feet away, but not 2?
MR. GOLDSTEIN: I don’t think that the courts have had to confront 5 feet versus 2 feet. What they have confronted is they acknowledge that jails are places that require security. And so, if you’re just observing a shower room, that does not implicate a reasonable expectation of privacy.
JUSTICE SOTOMAYOR: All right. So, are you — are you taking the position that it’s the purpose of the search -
MR. GOLDSTEIN: No, I’m taking -
JUSTICE SOTOMAYOR: — that’s at issue?
MR. GOLDSTEIN: No, it’s the closeness of it. There is not a problem, I think, with the question of 2, 3, 4, or 5 feet. These searches all occur in the same way, and that is the officer stands directly in front of you. The testimony here is 2 feet away. That seems to be the common -
JUSTICE SOTOMAYOR: I’m still -
MR. GOLDSTEIN: Yes.
JUSTICE SOTOMAYOR: — unsure if it’s okay to shower -
MR. GOLDSTEIN: Yes.
JUSTICE SOTOMAYOR: — and have an officer watch you shower naked.
MR. GOLDSTEIN: Yes.
JUSTICE SOTOMAYOR: What is — the greater intrusion is that you’re standing 2 as opposed to 5 feet away?
MR. GOLDSTEIN: Two versus 10 feet away or just generally observing the room. This is exactly -
JUSTICE SOTOMAYOR: All right. If that’s a line, that doesn’t make much sense to me.
MR. GOLDSTEIN: Okay.
JUSTICE SOTOMAYOR: Then let’s go to the next line, which is — that’s one kind of search.
MR. GOLDSTEIN: Yes.
JUSTICE SOTOMAYOR: The second is I think what some have called a visual cavity search.
MR. GOLDSTEIN: Yes.
JUSTICE SOTOMAYOR: Whether you’re going to have the individual open or expose private parts.
MR. GOLDSTEIN: Yes.
JUSTICE SOTOMAYOR: Can you make an argument that that’s different than just a visual search?
MR. GOLDSTEIN: You can. So, let me just say — let me just try and close off my answer to the question of the 5 versus 10 feet and then turn immediately to this visual body cavity search. Remember, this is — the Court will recall that this is a reprise of the argument in the Safford case, where the schools there argued that, well, there’s an observation of these students in gym class, they shower together naked, they undress naked. And the Court said it’s quite different when you’re standing right there looking over the student. Now, as to — and said that’s what implicates a Fourth Amendment right of privacy, and the distinction did make sense.
As to your question, yes, there is a material difference, we think, although we think both should be covered by our rule. But a visual body cavity inspection as occurred in the Essex facility here, where you require someone to bend over and cough, which is what the testimony is in this case -
JUSTICE GINSBURG: One, not the other?
MR. GOLDSTEIN: That’s correct.
That — the second jail had a slightly different search protocol, in which the testimony is that he was required to bend over and cough and expose his anus for inspection. And the Respondents themselves regard that as a more significant intrusion, and they apply a reasonable suspicion standard themselves to that.
JUSTICE SCALIA: Mr. Goldstein, what — what you propose is reasonable enough, I suppose, and some States could adopt that kind of a protocol instead of what they have. But what you’re asserting is that the Fourth Amendment prohibits them from adopting it, and the obstacle I see is that at the time the Fourth Amendment was adopted, this — this was standard practice, to strip search people who were admitted to prisons. So, how could it be deemed an unreasonable invasion of privacy when it — when it was done all the time and nobody thought it was unconstitutional?
MR. GOLDSTEIN: We don’t believe that the premise is correct. If you read history differently than me, I’m not going to be able to persuade you. But our understanding of the history is that the closest they can come to is two things: First, that people were strip searched upon arrest, and that’s certainly not the rule under the Fourth Amendment; and that in certain jails at the time of the founding, other inmates in a process of ablution, what is almost kind of a ritual cleansing, would strip search new inmates. It had nothing to do with the jail officials themselves or trying to intercept contraband.
JUSTICE SCALIA: That is somehow less of an intrusion -
MR. GOLDSTEIN: It’s just a -
JUSTICE SCALIA: — on your privacy, to be naked in front of a whole bunch of inmates, rather than one jail official inspecting?
MR. GOLDSTEIN: Well, first, it wasn’t a nearly — the nearly uniform practice that I think your question assumes. And it’s just a different kettle of fish entirely, that — we don’t believe, obviously, that that historical lesson obtains today, that the prisoners can strip search new inmates as they — new arrestees as they come in.
I do agree with the basic premise of your question that it’s — our position can’t just be that, hey, I’ve got a reasonable rule. I do have to, in either under the terms of Bell v. Wolfish or Turner v. Safley, establish that this is an exaggerated response, that this is much more, materially more than is necessary to accomplish their goals.
JUSTICE GINSBURG: But less intrusive than the one — the search in Bell v. Wolfish, which involved pretrial detainees?
MR. GOLDSTEIN: No, Justice Ginsburg, we disagree with that. At least as to the second search, we think that there is no difference between the degree of intrusion here and in Bell. But there is another significant reason that this — not just in the nature of the search, but a big difference between this case and Bell is that the inmates in that case made a voluntary choice. They decided to have the contact visits that was -
JUSTICE GINSBURG: Do we know if the pretrial detainees in Bell were also inspected on entry into the facility?
MR. GOLDSTEIN: We do not. I tried everything I could to check the record of that case, and there was no record of an admission strip search at the MCC at the time.
CHIEF JUSTICE ROBERTS: Counsel, is there - there is a distinction between the simple strip search and the visual body cavity search. You say that they apply reasonable suspicion standard to the visual body cavity search.
MR. GOLDSTEIN: Yes.
CHIEF JUSTICE ROBERTS: So, is the visual cavity search therefore off the table?
MR. GOLDSTEIN: No, it is not. We contend that the Fourth Amendment prohibited the visual body cavity search at the Essex facility. So -
CHIEF JUSTICE ROBERTS: Right, right. But you would say that they had to have a reasonable articulable suspicion before they could do that?
MR. GOLDSTEIN: We say that under their written policy, they should have, but they didn’t. The Burlington County — the only evidence about a conclusion of the jail about reasonable suspicion is that the Burlington County intake officer filled out a form saying there is no reasonable suspicion here. And Essex I don’t believe contends that there was reasonable suspicion to engage in a visual body cavity search.
They deny, as a matter of fact, that it happened.
CHIEF JUSTICE ROBERTS: So — so, you see a distinction between what they actually do and the written policy.
MR. GOLDSTEIN: I do with respect to the Essex — I apologize — no. What happened here is that Essex, after this search occurred — and this is described in the Essex brief in opposition, in case you want to look at it later, at 3 in note 1. Essex, after the search in this case, changed its policy.
CHIEF JUSTICE ROBERTS: Right.
MR. GOLDSTEIN: We were denied an injunction going forward under L.A. v. Lyons. So, we — it’s just a question of damages for the search that occurred at the time under their old policy.
JUSTICE ALITO: I’m confused about your -
JUSTICE SOTOMAYOR: Could I -
JUSTICE ALITO: — your position. Suppose a jurisdiction has the policy of requiring every inmate who is arrested and is going to be held in custody to disrobe and take a shower and apply medication for the prevention of the spread of lice and is observed while this is taking place from some distance by a corrections officer, let’s say 10 feet away. Is that — does that require reasonable suspicion?
MR. GOLDSTEIN: It does not. The — and - and -
JUSTICE ALITO: And so, your — your only concern is searches that go further than that.
MR. GOLDSTEIN: That’s exactly right. The very close inspection of the individual’s genitals, which can occur absolutely so long as there is some minimal level of suspicion that’s created.
I do want to return to Justice Kennedy’s concern about dignitary interests here and whether drawing any sort -
JUSTICE ALITO: Is there — could I just follow up on that? Is there a dispute of fact as to whether anything beyond that occurred in Burlington County?
MR. GOLDSTEIN: In Burlington County, there is a dispute about the so-called genital lift, whether Mr. Florence was required to lift his genitals or not. There is no dispute that he was required directly in front of an officer to strip naked, despite the officer having made a finding, which is on page 390 of the joint appendix, that there was no reasonable suspicion to conduct a strip search. That is the only factual dispute -
JUSTICE SOTOMAYOR: Counsel -
MR. GOLDSTEIN: — in the entire case.
JUSTICE SOTOMAYOR: Could you clarify two points for me? The first is, was he admitted into the general population at Burlington?
MR. GOLDSTEIN: The record is not entirelyclear. What the record says is that for the first few days of his stay — remember, he inexplicably was kept for 6 days. For the first several days, he was kept in a cell with only one other inmate, or possibly two, and one time he had lunch with other people. In Essex, he was admitted to the general population.
JUSTICE SOTOMAYOR: The prior charge against your client was the use — involved the use of a deadly weapon. Assuming the prison knew this, wouldn’t that provide the reasonable suspicion that you argue was missing?
MR. GOLDSTEIN: No, because it depends - because of the breadth of the phrase “possession of a deadly weapon,” as this case illustrates. The record shows that the possession of the deadly weapon — and that’s why this charge was not pursued by the State - is — was that he was pulled over at a traffic stop and he drove away. The deadly weapon is the car in this -
JUSTICE SOTOMAYOR: So, now you’re feeding into your adversaries’ arguments that what you’re asking the police to do on intake, or the corrections facility on intake, is to investigate in that fine detail. They can’t even look at the rap sheet -
MR. GOLDSTEIN: No -
JUSTICE SOTOMAYOR: — and see use of adeadly weapon and say, ah, this guy could be dangerous?
MR. GOLDSTEIN: No, Justice Sotomayor. The rap sheet does not contain that charge. What the rap sheet does show — and we are perfectly fine with them looking at the rap sheet. The rap sheet — and it’s in the joint appendix. The rap sheet says that he had a single charge, he pleaded guilty, he got a term of probation. There is nothing about that the jail would have had any information suggesting that he had some charge involving a deadly weapon. And that’s why they themselves certified that there was no reasonable suspicion.
JUSTICE KENNEDY: Well, is the rap sheet always available immediately? I thought it was rather common — correct me if I’m wrong — just based on practice some years ago, that it — it would take maybe 24 hours, 48 hours for the wiretap — for the wire services and the Internet to — to report that he was wanted for questioning for some very, very serious crime in some other State.
I mean, in my practice at least, county jails were much more dangerous than penitentiaries, because you don’t know who these people are. You arrest them for traffic, and it may be some serial killer. You do not know.
MR. GOLDSTEIN: Sure. First, that is not the view of the jails in this case. Remember, they apply a reasonable suspicion standard. They did not find any concern in their own policies, neither does the Marshals Service, ICE, with this prospect of some prior offense.
As to what the rule is and how common it is and whether this works in practice, the jail here did look him up in the New Jersey Criminal Justice Information System. That’s in the record. They’re required by New Jersey law to do that. It’s a — every single one of these jails has computer access to the NJ CJIS, and also to the NCIC; they just type in his identifying information.
They were able to pull him up without any difficulty, and they have not complained that they didn’t have enough information about him. They filled out a form saying there is no reasonable suspicion here. And remember, our rule only operates in a system, Justice Kennedy, in which the jail does have enough information. When — our point is this: If the jail has the facts, as it did here, to affirmatively determine that there is no reasonable suspicion, which is what they decided about Mr. Florence, then it is an extraordinary intrusion on dignity and autonomy to striphim naked -
CHIEF JUSTICE ROBERTS: Counsel -
MR. GOLDSTEIN: — when they have no reason to do so.
CHIEF JUSTICE ROBERTS: Counsel, my understanding of the statistics — and correct me if I’m wrong — is that they get about 70 new people going through this process a day. Is there anything in the record about how much additional time it would require to look at each one, to look at their record, to determine which category they should fall into, to strip search or not, as opposed to having a blanket rule?
MR. GOLDSTEIN: Sure. There is because they do this already. They — it is not an administrative problem. They apply our rule today. Remember, Mr. Chief Justice, when he arrived at the Burlington County Jail, they did an assessment of him and determined that there was no reasonable suspicion. The jails in this case did pull up his prior criminal history, and they have no problem doing that. They apply our standard today. It is not a difficult one.
JUSTICE SCALIA: Mr. Goldstein, you — YOU have acknowledged that we have held that when you have visitors, you may be strip — strip searched after the visit and the same kind of close examination that you object to here. Now, your explanation why that is okay is that that is voluntary.
MR. GOLDSTEIN: I have two explanations.
JUSTICE SCALIA: That you don’t have to have visitors. Can you really condition your — your having visitors on your waiver of your Fourth Amendment rights?
MR. GOLDSTEIN: Yes. Block establishes that you have no right whatsoever to have contact visits. So, under Schneckloth v. Bustamonte, of course, you can say I voluntarily relinquish my Fourth Amendment right in exchange for this privilege.
But I have a second -
JUSTICE SCALIA: Are — are you sure about that?
MR. GOLDSTEIN: I -
JUSTICE SCALIA: You can — you can condition certain — certain privileges upon a waiver of constitutional privileges?
MR. GOLDSTEIN: Yes, I believe that that’s — I think that’s a fair statement of the law.
I do have a second point, though, and that is that the principal reason underlying Bell v. Wolfish’s holding that those searches were reasonable is that it was essential to deter smuggling, and that deterrence rationale has much more of an attenuated relationship to this case.
Remember that the inmate in that case was having a planned meeting with someone, and the representation of the government is that our problem is if you plan to have somebody come visit you and you’re going to have a contact visit, you can plan for them to try and sneak something to you. This Court has set -
JUSTICE KAGAN: Mr. Goldstein, there, of course, were guards there who were watching the visits.
And, as I understand that case, there was really no empirical evidence that smuggling came about as a result of these visits.
MR. GOLDSTEIN: Well, can I just read to you what the Court said about that? Just so — the Court did have a slightly different take, I think. And this is from page 559 of the Court’s opinion: “That there has been only one instance where an MCC inmate was discovered attempting to smuggle contraband into the institution on his person may be more a testament to the effectiveness of the search technique as a deterrent than to any lack of interest on the part of the inmate to secrete and import such items when the opportunity arises.”
And our point is that that — when you have an unexpected arrest here — remember, Mr. Florence showed the paperwork that he was not wanted for arrest. And that’s going to be generally true in all kinds of traffic stops and the like -
JUSTICE BREYER: Well, which is it you’re doing? I mean, I imagine — I thought you were saying you always need reasonable suspicion. So, I imagine a case where the person is going to be arrested, put into the general prison population. There is a warrant out against him for second-degree murder, and the policeman stopping him for a traffic offense arrests him because he knows he is wanted on a warrant in another place.
And the jail has a policy that says when you’re — come in here because of second-degree murder, we strip search you. Okay? Can they do that under your rule or not?
MR. GOLDSTEIN: Yes.
JUSTICE BREYER: That’s all they know.
MR. GOLDSTEIN: Yes. That’s reasonable suspicion.
JUSTICE BREYER: Then you do not want to - then you are not saying it always has to be reasonable suspicion.
MR. GOLDSTEIN: It’s just a debate about words. We think that is reasonable suspicion.
JUSTICE BREYER: Oh, all right. Well, that isn’t helping me.
MR. GOLDSTEIN: I’m sorry.
JUSTICE BREYER: What helps me is to know what the category of things is that the jail in your opinion is going to have to look into the characteristics of this individual person, and when I look at the ABA, they talk about minor arrests.
MR. GOLDSTEIN: Yes.
JUSTICE BREYER: And when I look at some of the cases, there’s a long list, like violence, drugs, and so forth, where you don’t have to, where you can just use a general — the fact that he was arrested -
MR. GOLDSTEIN: Right.
JUSTICE BREYER: — for the thing. But there are other ones, minor ones, where you do. So, what’s your rule on that?
MR. GOLDSTEIN: Our rule that we would accept is that, with respect to minor offenders, that’s when you assess -
JUSTICE BREYER: Okay. Then the next question which we’ll get -
MR. GOLDSTEIN: Yes.
JUSTICE BREYER: — who is a minor offender and how do you administer that rule?
MR. GOLDSTEIN: Okay. I think that is a great question for them, because that’s their rule.
They have a rule that says for minor offenders that you have to have reasonable suspicion to search for contraband.
JUSTICE GINSBURG: But you are trying to state the constitutional rule, and you keep talking about what is their rule, and we’re trying to find out what are the limits -
MR. GOLDSTEIN: Yes.
JUSTICE GINSBURG: — of the rule, and I think you’ve already qualified what you said opening. Opening, you said reasonable suspicion is the rule for everyone, the felon as well as the minor offenders. Now you seem to be saying, well, this case involves only minor offenders; so, let’s limit it to that. That’s what I thought you were saying now.
MR. GOLDSTEIN: Yes, that’s right. Because this case only involves minor offenders, we have articulated a rule with respect to minor offenders.
JUSTICE BREYER: All right. That’s what I’m -
MR. GOLDSTEIN: Okay.
JUSTICE BREYER: Unfortunately, I’m asking you and not them, and it’s the same question.
MR. GOLDSTEIN: Okay. Sure.
JUSTICE BREYER: How do you want us to write this so that jail personnel all over the country -
MR. GOLDSTEIN: Yes.
JUSTICE BREYER: — have to be able to follow it and know exactly what they’re supposed to do.
MR. GOLDSTEIN: For three decades the rule that was articulated by the Federal courts and applied without difficulty is one that says for minor offenses.
When that was applied in practice it was basically done at a felony versus misdemeanor line. The court accepted that if you are — the courts accepted that if you are suspected of a more serious offense, then for administrative reasons and because we just think you might be engaged in more criminality, then you don’t have to have any individualized inquiry whatsoever.
JUSTICE SCALIA: I can understand that — I can understand that for cavity searches, but — but why for the search to see that — if the person has any fleas or cooties or, you know, any — any other communicable disease before he’s put into the general population? Are — are felons more likely to have those than non-felons?
MR. GOLDSTEIN: No, they are not.
JUSTICE SCALIA: So, that line makes no sense for that aspect of the search which is — is just we want to make sure that we have a clean prison.
MR. GOLDSTEIN: That is not correct. That aspect — what the testimony in this case establishes is that the jail guards allow any sort of medical rationale for the search to be conducted by medical personnel, not by the guards themselves. All these inmates are examined by a medical person, a nurse or the like, and they are responsible for — for -
JUSTICE SCALIA: And that — that’s where the Fourth Amendment invasion of privacy line is to be drawn? If you’re examined close up by someone who has a medical degree, it’s okay? And, on the other hand, if it’s someone who does not have a medical degree, it’s not okay?
MR. GOLDSTEIN: That is -
JUSTICE SCALIA: That can’t be the line as to whether your privacy is being invaded.
MR. GOLDSTEIN: It — it can be the line, and it is the line that’s been accepted for decades.
JUSTICE GINSBURG: Even for -
JUSTICE KENNEDY: But you — you would -
JUSTICE GINSBURG: — body lice?
JUSTICE KENNEDY: — have to keep the person in custody, say, for 24 or 48 hours until the medical personnel could come. Do you have 24-hour medical personnel for intakes that are at 2 in the morning?
MR. GOLDSTEIN: Yes. The intake process, the testimony is that -
JUSTICE GINSBURG: But they are -
JUSTICE KENNEDY: You’re telling us that every county jail in — in the United States has medical personnel on duty 24 hours a day ready to do a — a search?
MR. GOLDSTEIN: No, I apologize, Justice Kennedy. I’m telling you what’s in the record in this case. And that is -
JUSTICE BREYER: You said before was 2 feet is too close, but 5 feet is okay. Are you sticking with that?
MR. GOLDSTEIN: Justice Breyer, I’m saying that a close inspection which is intended to examine the person’s individual -
JUSTICE BREYER: Yes.
MR. GOLDSTEIN: — genitals, and whether it’s at 2 feet or 4 feet I don’t think is the relevant line.
If I could make one point, and then reserve the remainder of my time, that that -
JUSTICE GINSBURG: May I just ask, on your medical personnel, children in school get inspected for — for head lice, prisoners for body lice. You don’t need a doctor to do that?
MR. GOLDSTEIN: No, that’s right, but if that is right, what happens is that medical professionals are the people who are assigned that responsibility. That’s the testimony in this case. The only last point that I wanted to make is -
JUSTICE GINSBURG: But that’s not constitutionally required.
MR. GOLDSTEIN: I — I agree. That -
JUSTICE GINSBURG: So, that’s another thing that — that you don’t need to — they can inspect for body lice, and that’s — that’s okay?
MR. GOLDSTEIN: If that’s what they’re doing, I think that that is okay. The courts have said that that is not itself a — because of the prospect of handling that problem with shampoo, which is what these jails do, that that’s not a sufficient — a sufficient justification to require the person to strip naked.
The only other point that I did want to make is that this is the rule, not just at Burlington and Essex, but also of the U.S. Marshals Service, which has the intake of 220,000 inmates every year, and also of the Bureau of Immigration Customs Enforcement, which intakes 384,000 a year.
JUSTICE GINSBURG: But the Government tells us that that’s true only if they don’t put the arrestee in the general population.
MR. GOLDSTEIN: That’s not correct. That is only the policy of the U.S. Bureau of Prisons, which has an intake of minor offenders of only a few thousand people a year. For the Marshals Service and for ICE, which have a combined 600,000 people every year, they do not have that separate housing rule.
If I could reserve the remainder of my time.
CHIEF JUSTICE ROBERTS: We’ll give you rebuttal time, but maybe just to be clear -
MR. GOLDSTEIN: Yes.
CHIEF JUSTICE ROBERTS: — you don’t — do you or do you not have an objection to the superseding ECCF policy?
MR. GOLDSTEIN: We — if the — we do, because they still have to stand naked directly in front of the correctional officer under the superseding policy. What the superseding policy is, which is Burlington’s policy throughout this, is that they will not search the person for contraband, which is their supposed interest here, for contraband, in the absence of reasonable suspicion.
Both jails at the time of this search andalso now will still require the person to strip naked, supposedly for contraband, even though their own policy says we won’t search for — we won’t engage in the depth of search that’s required, we won’t look at the anus, we won’t look in the person’s mouth, in the absence of reasonable suspicion.
CHIEF JUSTICE ROBERTS: That’s the current policy?
MR. GOLDSTEIN: That is the current policy.
CHIEF JUSTICE ROBERTS: And you have no problem with that.
MR. GOLDSTEIN: We do have — I -
CHIEF JUSTICE ROBERTS: I mean, you have no problem with the reasonable, articulable suspicion aspect of the body cavity search.
MR. GOLDSTEIN: That’s correct.
CHIEF JUSTICE ROBERTS: Okay. And with respect to the simple strip search -
MR. GOLDSTEIN: Yes.
CHIEF JUSTICE ROBERTS: — your only objection is that the guard is too close to the inmate?
MR. GOLDSTEIN: That’s right.
CHIEF JUSTICE ROBERTS: Okay. Thank you.
Rebuttal Argument of Thomas Goldstein on behalf of the petitioner:
MR. GOLDSTEIN: Thank you, sir.I have three points to make: The first is that my friend from the United States says defer to the experts. But the point that the United States consistently omits is that there are 600,000 offenders that go into the Federal system every year. I don’t understand the claim that — this only involves 1 percent of Federal offenders.
The Marshals Service and ICE admit 600,000 offenders every year under our standard. They are not kept in separate housing. These are cited in our brief. Six hundred thousand people, is their expert judgment, are subject to a reasonable suspicion standard when they’re admitted to jail.
The second point, about numbers, Justice Breyer, there is a significant empirical study, and that is the County of Orange case. The district judge there did an unbelievably detailed job going through the record of 26,000 admissions into the system and was able to identify only a single instance where contraband would have gotten in under a reasonable suspicion standard.
There is also evidence in this case, and it is the evidence, to my surprise, that my friends keep pointing to. There’s a memorandum from the Essex jail system. It’s at page 70a to 71a of the joint appendix. And it tells you two really relevant things. It says every year they admit 25,175 people into this jail, and that they only found 14 instances of contraband. And they don’t even make the claim that those 14 instances out of 25,000 would not have been found under a reasonable suspicion standard. So, you have evidence in this record about this particular case.
Third, a couple of points have been made about whether — Justice Breyer, you asked whether someone who’s high on drugs. The uniform rule — and this is not just the ABA but the expert standard of the American Correctional Association. What they say is that essentially almost anything will do. What will not amount to reasonable suspicion is when you have a minor offender — and we do have — there are 700,000 people in jail in the United States every year for misdemeanor offenses. This is — this is a lot of people who are having a very significant intrusion on privacy.
And the expert standard, the rule that was applied under Bell v. Wolfish, is that when you have people who come in on a minor offense — they don’t have any drug history. They are not high on drugs. There was no opportunity to hide a weapon. I’m not sure where they think the gun is going to be hidden that’s not going to show up in the very close manual pat down that they do of every one of these people that isn’t going to show up in -
JUSTICE ALITO: I don’t think you’re really arguing for a — an individualized reasonable suspicion standard. I think you’re arguing for a rule that draws distinctions based on categories that correspond only perhaps very roughly to reasonable suspicion.
MR. GOLDSTEIN: Well, first, there are real categories that are overinclusive in favor of the jails, like if it’s a serious offense or if they have any drug history. And then on top of that, if there’s any individualized basis that the jails can articulate, that will do as well. We are not saying that categorically people will be excluded from being searched. We’re saying that there are entire categories that will automatically be searchable. We’re just saying don’t throw the baby out with the bath water.
When somebody is pulled over like Mr. Florence, and there’s just — it’s laugh-out-loud funny to think he’s smuggling in — something into this jail; that it’s too much of an intrusion to put him under the direct, you know, 2 feet away, I’m going to look at your genitals, as opposed to the ordinary intrusion of saying we’re going to oversee the showers. There is no evidence when it comes to that group of people, and there are a lot of them, that they represent anything like a material threat of smuggling.
And this is a very significant intrusion on individual privacy and individual dignity. Thank you.
- WhatTheFolly.com: Transcript: SCOTUS oral argument of Carter Phillips on jail strip searches
- WhatTheFolly.com: Transcript: SCOTUS oral argument of Nichole Saharsky on jail strip searches
- SupremeCourt.gov: Opinion on Florence v. Board of Chosen Freeholders of County of Burlington et al (PDF)
- SupremeCourt.gov: Florence v. Board of Chosen Freeholders of County of Burlington et al – brief for petitioner (PDF)
- SupremeCourt.gov: Florence v. Board of Chosen Freeholders of County of Burlington et al – brief for respondents – Board of Chosen Freeholders of County of Burlington (PDF)
- SupremeCourt.gov: Florence v. Board of Chosen Freeholders of County of Burlington et al – brief for respondents – Essex County Correctional Facility and Essex County Sheriff’s Department (PDF)
- SupremeCourt.gov: Florence v. Board of Chosen Freeholders of County of Burlington et al – reply brief for petitioner (PDF)