Saturday, October 15, 2011

Another Stain on the Constitution

The following experience confirms the fear of a widening number of Americans who believe that a broad range of the country's Constitutionally protected rights are in serious jeopardy and that the Obama White House is a large part of the problem.

At the same time, we are reminded that there is nothing supreme about the United States Supreme Court which is little more than a bunch of post menopausal men, driven by ideological purity rather than legal principles or the Rule of Law.     

It is true that over the years I have been accused of practicing without a license.  As a legal beagle, I am not a lawyer but much of my adult life has focused on the law - as a lobbyist for Friends of the Earth in Washington, DC, employed in a State Public Defender’s office for more than a decade and then as an elected official and mayor of a small Rocky Mountain town.
Here’s the story I wanted to share – A man was stopped in NJ on a minor traffic violation.  His family was in the car.  The Officer checked the man's driver's license and discovered that there was an outstanding warrant for this individual because of an unpaid fine for an earlier traffic violation.  The point to keep in mind here is we are talking about two minor traffic violations.

What that officer did not know was that the outstanding warrant was erroneous either due to human error or technological failure and that the fine had already been paid.  However, despite his protestations, this man was taken to jail in handcuffs and, here’s where it gets interesting, he was strip searched including his genitals and body cavities.  He was held for six days before being transferred to county jail – where he was again strip searched – cavities and all.

Finally his wife managed to convince the right person that the earlier fine had been paid and that her husband was being incorrectly incarcerated.   As you might expect, upon his release, this man sued the County in NJ for violating his Fourth Amendment rights which protects each of us from ‘unreasonable search and seizure’ – like when the Red Coats would enter a Colonial home without being invited. 

Even if none of us ever experience what this individual experienced, his conclusion sounds like reasonable interpretation; that by virtue of two strip searches for minor violations of the law, this individual's Constitutionally-protected Fourth Amendment rights had been violated - but this is 2011 in America and things have changed since 1775. 

This case was just argued before the Supreme Court at which time the issue became whether only citizens arrested on felonies should be strip searched or whether citizens arrested on minor violations such as traffic and speeding should also be strip searched.  The Court is expected to rule on this matter in several months. 

Not surprisingly the County has denied any wrong doing claiming that they have  the right to conduct ‘blanket’ strip searches on all inmates; meaning that regardless of whether a person is incarcerated for a felony or a misdemeanor or a traffic violation, anyone incarcerated on any violation of the law is subject to being stripped and searched - including all your cavities and canals. 

The situation in which this individual found himself seems an obvious over-reach by law enforcement to any objective observer but what is at stake here is no less than the continued assault on the Constitution and civil liberty protections for every American - assaults that GW Bush instigated with the Patriot Act and that Barack Obama has shamelessly accelerated. 

But here’s what flips me out.   Joining the NJ County in front of the Supreme Court in support of ‘blanket’ strip searches’ for all detainees, is the Obama Department of Justice.  Despite the President's objectionable three year history on civil liverties, it is difficult to wrap one's mind around that one.  Even though of course the President does not personally sign off on every action instituted by the DOJ, there is no doubt that Attorney General Eric Holder is acting within what he believes to be the criminal justice priorities as set forth by the President of the United States. 

In other words, if asked at a press conference, we could expect the President to support strip and body cavity searches - even for those Americans arrested on a minor traffic citation.   While this may seem an obvious violation of the Fourth Amendment, why should anyone be surprised.  As Jonathon Turley and others have pointed out, it may seem inconceivable that a Democrat in the White House can be responsible for expanding on GW's assault on civil liberty protections.  Obviously, if this were a Republican  President, the 'liberals' would be outraged, up in arms and otherwise appropriately over-wrought in their denunciations of a President so grossly insensitive to Constitutional protections.

One justification for 'blanket' body searches is that a new arrestee might be hiding contraband (?) or drugs within bodily cavities and would, therefore, introduce the contraband to the existing jail population.  The problem with that theory is that this individual (and presumably many other new arrestees) had no reasonable expectation and was not aware he was about to be arrested.  Are we to assume then that such individuals make it a routine habit of walking around while concealing such contraband within their bodily cavities?  The possibility is ludicrous to contemplate.  

Currently, we have the case of Bishop Robert Finn who has been indicted by a grand jury for failing to inform police about pornographic images found in the laptop computer of a priest under his supervision.  May we expect high profile personalities like the Bishop to be subjected to blanket body searches - except in the Bishop's case, he was not placed under arrest.

Given the recent history of this activist Supreme Court, what are the odds they will find in favor of this individual or the NJ County and the Federal government?
Here's a novel idea - let's elect a Constitutional scholar in 2012.

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