Amicus brief submitted on behalf of former New Jersey Attorneys General
NEWARK - The American Civil Liberties Union of New Jersey (ACLU-NJ), joined by the national ACLU, today filed a friend-of-the-court brief to the U.S. Supreme Court opposing blanket strip search policies at the Burlington County Jail and Essex County Correctional Facility. The brief was filed on behalf of five former New Jersey attorneys general.
The jails' policies which are being challenged require strip searches for people charged with but not convicted of minor offenses, even when there is no reasonable suspicion that an arrestee possesses contraband. These policies violate New Jersey law and the case before the U.S. Supreme Court contends it violates the Constitution as well.
"A strip search is a demeaning and humiliating experience for anyone," said Ed Barocas, Legal Director for the ACLU-NJ. "But strip searching every detainee is unconstitutional and results in intrusions without justification. Strip searching a person who is in jail for minor offenses, such as unpaid traffic tickets, does not increase security at a jail. It has been proven in this state and other states that removing blanket strip searches does not compromise jail security."
The amicus brief (189k PDF), filed on behalf of former New Jersey Attorneys General Robert J. Del Tufo, Deborah T. Poritz, John J. Farmer Jr., Peter C. Harvey and Zulima V. Farber, defends the privacy and Fourth Amendment rights of Albert Florence. The brief argues that the blanket strip search policies violate New Jersey law, the Attorney General's Strip Search Requirements policy, Department of Corrections' regulations and standards accepted by the American Bar Association, as well as the Constitution.
In March 2005, a State Police officer in Burlington County pulled over Florence's wife for speeding. When the officer ran the vehicle's registration, he learned there was a warrant for his arrest for an unpaid traffic ticket. The warrant, it turned out, had been dismissed in 2003, but Florence was brought to Burlington County Jail anyway and ordered to squat naked and, while standing in front of prison guards, to lift his genitals. Florence spent five days at Burlington County Jail and one day at Essex County Correctional Facility, where he was also strip searched.
Consistent with legal precedent, U.S. District Court Judge Joseph H. Rodriguez ruled in February 2009 that the strip search of Florence violated the Constitution. The judge held that, for persons arrested on non-indictable offenses, reasonable suspicion that contraband will be found on the person is required before a strip search can occur. Officials with Burlington and Essex counties appealed the decision to the Third Circuit Court of Appeals, which acknowledged the intrusiveness of the search, but rejected a reasonable suspicion standard and held that blanket strip search policies are not unreasonable under the Fourth Amendment.
The ACLU-NJ's brief to the U.S. Supreme Court argues that using a standard of reasonable suspicion to conduct searches strikes the appropriate balance between maintaining security in the jail and the substantial invasion of privacy caused by strip searches.
"Being forced to strip naked is a humiliating experience, and people charged with minor crimes shouldn't be strip searched unless there's a legitimate reason to think they're hiding something," said David Fathi, director of the ACLU National Prison Project.
Previous federal rulings have banned strip searches of low-level arrestees unless jail officials can prove reasonable suspicion that the inmate may have drugs, guns or other illegal contraband. The standard of reasonable suspicion still allows prison officials to use broad discretion in determining if a strip search is necessary.