http://www.youtube.com/watch?v=riboisae0JY

On the subject of using video recording to ensure that searches are performed in a reasonable manner, here is an interesting example of how that can work (although it was not a strip search):

http://www.philly.com/inquirer/columnists/20100208_Daniel_Rubin__Another_TSA_complaint_close_to_home.html

There is no need to physically insert anything into a person’s orifices to determine whether they are carrying a knife…

I’m not sure I agree with that completely: cf. ‘keistering’. Or if you are thinking X-rays, those aren’t risk free.

That aside, am I misreading the decision? It seems to be addressing something more often called a ‘strip search’, where guards are forbidden to touch the person being searched. The ‘body cavity’ inspection is visual only, looking for e.g. dangling strings or foil packets in the mouth. If guards are getting out the speculums and sigmoidoscopes that’s one thing; visually verifying there is nothing between one’s cheeks (either pair) is another.

. . . Sotomayor (whose 2d Cir. jurisprudence was very pro-plainitff here) . . .

This case veritably screams for some wise Latina style empathy. The support (active and passive) for the mage opp here at vlkh.cm is surprising, but not really. “What me worry?” asks the 4a professor.

Now we have a decision that is creating a doctrine of “body cavity searches are OK if guards aren’t abusive.” I predict that, just as it was impossible for the United States to achieve “separate but equal,” it will prove impossible to achieve “guards aren’t abusive.” Eventually, the Supreme Court will rule that allowing prison guards to routinely perform body cavity searches without probable cause is inherently abusive and overturn this decision.

I found that passage annoying, actually: Blue-book humor is low-hanging fruit.

Inserting fingers or instruments into the rectum or vagina of an unwilling person is normally a felony carrying severe penalties

Some people would expand that zone of criminality to include acts involving willing persons . . . and they were getting away with it as recently as a decade ago, until the Supreme Court got around to vindicating liberty

Inserting fingers or instruments into the rectum or vagina of an unwilling person is normally a felony carrying severe penalties — including, these days, sexual-offender registration, a permanent mark of shame. It is thus recognized by the law to be an extreme invasion of the normal rights of a person to bodily integrity.

Nor, for that matter, is it clear that this is the least intrusive means available to the state to accomplish its goals. Consider the availability of full-body scanners, X-ray machines, and the like which have been considered for airport security. There is no need to physically insert anything into a person’s orifices to determine whether they are carrying a knife; therefore, choosing to do so indicates a willful choice to commit rape under color of law.

From a pragmatic perspective, if I as a law abiding :-) citizen am unfortunate enough to be arrested, I want to be treated with kid gloves — no nasty searches and so on. But I reeeallly want all the other guys in the holding cell to have been searched to the Nth degree.
I dunno if I can expect to have it both ways.

If you are to be held naked for several hours, like the plaintiffs in this case, then what kind of search would be appropo?

I dunno if I can expect to have it both ways.

My favorite part is the passage with Kozinski’s entertaining parentheticals, including a pun on one of the named plaintiff’s surnames.

Kozinski discusses the difficulties of dividing inmate searchees into subclasses. One subclass is people charged with violent crimes. But, Kozinski opines, jurists disagree on what constitutes a violent crime. With that setup, here is the funny part:

See, e.g., United States v. Chambers, 473 F.3d 724, 726 (7th Cir. 2007) (escape is a crime of violence); United States v. Piccolo, 441 F.3d 1084, 1088 (9th Cir. 2006) (no it’s not); United States v. Asberry, 394 F.3d 712, 715-16 (9th Cir. 2005) (statutory rape is a crime of violence); id. at 722 (Bea, J., concurring) (no way); United States v. Wenner, 351 F.3d 969, 974 (9th Cir. 2003) (burglary is not a crime of violence); id. at 977 (Wallace, J., dissenting) (is too); United States v. Johnson, 448 F.3d 1017, 1018 (8th Cir. 2006) (grand theft auto is); Von Don Nguyen v. Holder, 571 F.3d 524, 525 (6th Cir. 2009) (au contraire); Malta-Espinoza v. Gonzales, 478 F.3d 1080, 1084 (9th Cir. 2007) (stalking isn’t); id. at 1088 (Duffy, J., dissenting) (“I respectfully dissent.”); United States v. Saavedra-Velazquez, 578 F.3d 1103, 1110 (9th Cir. 2009) (Reinhardt, J.) (attempted robbery is); id. (Reinhardt, J.,
specially concurring) (or is it?); United States v. Trinidad-Aquino, 259 F.3d 1140, 1146 (drunk-driving-resulting-inbodily-injury is a gentle crime); id. at 1147 (Kozinski, J., dissenting)(Bull!).

This decision is repulsive and confirms the police state is upon us as your person can be violated for the most minor of infractions.

Better not get arrested for a seatbelt violation or we will be forced to search (e.g. rape) you. It’s for everyone’s safety you know.

However, if the trespasser at the econ summit gets the “Goatse” and the trespasser at the family planning facility gets the “Marcus Welby,” that does not give the first trespasser a claim.

To expand on this a bit, a think one important bit of sub-text of the case, or more specifically from the plaintiffs vetted for the case, is that strip searching related abuse occurs precisely because police know that certain suspects will not be punished by the judicial branch for whatever (and generally good) reason. For example, arrestee may have political views that the policemen find distasteful. So the popos, in these cases, administer punishment as part of the arrest procedures, and administer it most cruelly when they know that they don’t have a case. That is ironic. It also is, or should be, a Constitutionally cognizable problem. None of the opinions in Bull did a good job cognizing it, though.

I also like the all-or-none standard. If any felony suspect is to be searched, regardless of individualized suspicion, every felony suspect. Any misdemeanor suspect, every misdemeanor suspect.

This is a close call, from my perspective. In part because I am skeptical about the majority’s expressed outrage concerning law enforcement misconduct. I would wager that several of those judges would bend backward until their spines snapped to avoid awarding relief to a plaintiff who established abusive treatment by law enforcement personnel. I might lose that wager, but Las Vegas was built — quite handsomely — on probability.

Frankly, I am not necessarily against the idea that all inmates to be held for longer than x hours can be strip searched, however, there is definitely room for judges to still safeguard fourth amendment values. For example, judges should get a little activist and require that the arrestee has the option of having the searches video’d (or not) and that the arrestee would be awarded sole custody of the video shot. That is an administrative framework that does not require “judgement calls” and still protects privacy interests that are supposed to be safeguarded 4a by by enabling appropriate section 1983 claims. It is not hard to fashion a better compromise with a little will and imagination, which the judges and the 4a scholars seem to be sorely lacking in this area.

The fourth amendment protects individual people, not classes of people. In this context, classes are artificial contrivances of convenience, created to avoid the hard work the fourth amendment requires, making individualized determinations of reasonable cause for invasions of privacy.

Making individualized determinations would be heavy going, Kozinski complains. The fourth amendment’s protection of anal privacy thus bends over before considerations of administrative convenience.

Why not simply make a flat holding that the fourth amendment offers no protection to those in custody instead of clinging to the fiction that the courts are making determinations of whether searches of inmates are reasonable? That would be the honest course.

Instead, the courts concede that the reasonability of searches depends upon the circumstances, but then accord one circumstance–detention–determinative effect and refuse to look at any other circumstances.

Mary Bull was arrested at a political protest for pouring red
dye mixed with corn syrup on the ground. At the police station,
according to her testimony, she was pushed to the floor
and her clothes forcibly removed. Her face was smashed
against the concrete cell floor while jailors performed a body
cavity search. She was left naked in the cell for eleven hours,
then subjected to a second body cavity search. After another
twelve hours in the jail, she was released on her own recognizance.
She was never charged with a crime.
Charli Johnson was arrested for operating a motor vehicle
with a suspended license. She alleges she was forcibly strip
searched by male officers in a hallway, and that she was kept
in a cold room, naked for twelve hours with male officers regularly
viewing her. No contraband was found. She was
released the next day. No charges were ever filed.
Sister Bernie Galvin, a Catholic nun and a member of the
Sisters of Divine Providence, was arrested at an anti-war demonstration
for trespassing. She was strip searched at the jail.
No contraband was found.
Michael Marron was arrested for alleged credit card fraud
at the Hotel Nikko, strip searched, and allegedly beaten and
left naked in a cell for over ten hours. No contraband was
found. All charges were eventually dismissed.
Laura Timbrook, who was arrested for bouncing small
checks, was body cavity searched twice. No contraband was
found. Deborah Flick alleges she was arrested for public
intoxication, forcibly strip searched and left naked and bleeding
in a cell overnight. Salome Mangosing, arrested for public
drunkenness, was strip searched and forced to remain naked
for twelve hours. Again, no contraband was found. Leigh
Fleming was arrested for disturbing the peace. She was body
cavity searched and confined naked in a cold room for five
hours. No contraband was found, and she was never charged
with a crime.

SuperSkeptic: Can we all at least agree that “qualified immunity” is a mess…?

It is. But the underlying 4th Amendment issue (which I also think we can all agree is a mess) is the real problem here. It’s not like this case turned on clearly established, it largely turned on the constitutional violation. Graber’s vote didn’t change the outcome on either prong.

“Because it’s 6–5 on the merits (Judge Graber joined the majority as to qualified immunity, but agreed with the dissent’s underlying constitutional argument), and because”…

Can we all at least agree that “qualified immunity” is a mess…?