Bend Over

We have two definitely connected phenomena, often treated as separate and unconnected: a growing lawlessness in the financial sector, and an expanding, repressive, increasingly lunatic police apparatus trained at the poor, and especially the nonwhite poor.

Matt Taibbi

The Occupy Movement is expected to resume its protests of economic inequality this Summer, especially during the Elephant and Jackass political gatherings. But protesters, beware. The Supremes may have an unpleasant surprise for you.

The depressingly predictable 5-4 conservative majority has ruled that the police may strip search anyone they arrest for any offense, no matter how minor. They don't need a reason to suspect that the person is carrying drugs or weapons. As lead singer Justice Anthony Kennedy put it: “Every detainee who will be admitted to the general population may be required to undergo a close visual inspection while undressed.” About 13 million Americans are arrested each year.

Justice Stephen Breyer, writing for the dissenters, said that strip searches are “a serious affront to human dignity and to individual privacy,” and should only be used when police have a reasonable suspicion that the person is carrying contraband.

The case, Florence v. County of Burlington, involved a black man, Albert W. Florence, a passenger in BMW driven by his wife, who was pulled over for speeding. He was arrested when the police checked their computer and discovered he had an unpaid parking ticket. In fact, he had paid the ticket; he was the victim of a data input error. He was kept in jail for eight days until the police acknowledged their error. During that time he was strip searched twice.

Are blanket strip searches necessary to detect contraband? There was an interesting difference in the approach to evidence taken by the Court's majority and minority spokesmen. Justice Breyer cited a study of 23,000 people arrested in Orange County, New York, in which only five people were found to have forbidden materials concealed in their underwear or body cavities. In four of these cases, police had reasonable suspicion to conduct the search, resulting in a “hit rate” of one in 23,000. Justice Kennedy, on the other hand, cited an anecdote about a man arrested in Washington who “managed to hide a lighter, tobacco, tattoo needles and other prohibited items in his rectal cavity.” (Even if this story is true—and I have doubts—a strip search might not have been necessary. The police could simply have ordered the man to sit down on a hard chair.)

Social psychologists have discovered that vivid anecdotes are more memorable than statistical data, so you'll probably remember Justice Kennedy's story long after you have forgotten the results of Justice Breyer's study.

One detail that was overlooked in some news reports is that the Obama administration filed a amicus brief with the court in favor of the unlimited strip search policy. The Solicitor General wrote that corrections officials should have “appropriate latitude to implement those policies and practices they deem necessary to preserve institutional security.”

In reality, strip searches of prisoners have little to do with detecting contraband. Degrading and humiliating searches are a part of the process of exercising control over newly arrested prisoners. This technique was widely used against Occupy protesters last Fall.

We are facing a indefinite period of increasing social inequality, accompanied by elimination of the social safety net which keeps many people alive. This is one of several converging decisions that will make it more difficult for people who hope to exercise their right to protest these conditions. It follows recent decisions by the Supremes that police officers who serve invalid warrants cannot be sued and that police do not have to give Miranda warnings pefore interrogating suspects. Meanwhile, the police are being given high tech weapons to threaten and punish crowds. The Department of Homeland Security has greatly increased its warrantless surveillance of citizens, a power that has been used to infiltrate the Occupy movement, deliberately blurring the distinction between domestic terrorists and peaceful protesters. The Justice Department has announced that they can detain U. S. citizens accused of terrorism indefinitely without any due process protection. Finally, Attorney General Eric Holder has announced that the President claims the right to order the assassination of American citizens alleged to be terrorists without any judicial oversight.

In this instance, the message seems to be particularly directed at young women: “Peaceful protesters can be arrested at any time. If you are arrested, this is what will happen to you. Maybe you'd better stay home.”