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Wednesday, August 16, 2006

Stripping Justice Bare

On August 9, the Eighth Circuit upheld the strip search of a 16-year-old girl detained for nothing more than a curfew violation, despite the fact that law enforcement officials had absolutely no reason to believe that the girl possessed anything dangerous. Responsible for blasting this hole in the Fourth Amendment’s privacy protections was a trio of Bush II appointees – Steven Colloton, Duane Benton and Michael Melloy.

The police in Sioux Falls, South Dakota arrested Jodie Smook on August 8, 1999 for staying out past 11:00 p.m. When they took her to the juvenile detention facility for processing, Minnehaha County officials forced her to remove all of her clothes except her underwear. The strip search was conducted under a blanket policy that didn’t require officials to make any individualized assessment of whether a search was justified and didn’t even draw broader distinctions between juveniles arrested for the most serious offenses and those arrested for, well, curfew violations. The blanket policy seemed to fly in the face of court rulings country-wide. Because, in the words of one court, a strip search is “an invasion of personal rights of the first magnitude” that “can only be seen as thoroughly degrading and frightening,” the courts have uniformly held that government officials may not strip search an adult detained for minor infractions, such as traffic violations, unless they have a reason to think he or she is hiding contraband.

So why did the Eighth Circuit permit county officials to conduct suspicionless strip searches of minors like Jodie Smook, while adults arrested for low-level offenses enjoy Fourth Amendment protection? Indeed, why did Judges Colloton, Benton and Melloy allow the government to do to juvenile curfew-violators what it may otherwise do only to adults held on felony charges, particularly when, according to other courts, “children are especially susceptible to possible traumas from strip searches?” Ironically, it was because the county professed that its goal was to protect minors – protect them from doing harm to themselves and to others.

The problem, however, is that the county’s claim about the blanket policy was nothing more than a bald assertion: the county failed to point to any evidence showing either that strip searching curfew arrestees helped to uncover contraband or that less intrusive searches, like pat down searches, wouldn’t have done the trick. This is something that recent circuit precedent says it was required to show. In Doe v. Little Rock School District, the Eighth Circuit struck down the practice of conducting suspicionless searches of high school students’ bags because the school district offered no evidence that hidden contraband was a problem.

The Doe precedent illustrates another problem with the Smook ruling: If evidentiarily-unsupported, suspicionless searches of school children’s mere belongings are unconstitutional in the Eighth Circuit, how can evidentiarily-unsupported, suspicionless strip searches of minors’ bodies be OK?

No one disputes that when there is reason to believe that a particular juvenile possesses weapons or other items that pose a genuine threat to herself or others, a search – perhaps even a strip search – is justified. But in the absence of such evidence, paying mere lip service to the welfare of children is not enough to give the government what the Eighth Circuit in Doe called “carte blanche” to circumvent the Fourth Amendment’s essential safeguards. This would seem especially true when it comes to a practice that courts have universally recognized as “demeaning” and “dehumanizing” for adults, let alone children. Which is almost certainly why Minnehaha County altered its policy just a few months after Smook’s arrest, and why, the following year, the South Dakota legislature completely banned strip searches of minors detained solely for curfew violations. Smook v. Minnehaha County, slip op., No. 05-1363 (8th Cir. Aug. 9, 2006).

BY CONTRAST … Making for an interesting companion to the Smook decision, the Eleventh Circuit found on August 7 that a police officer violated the Fourth Amendment when he handcuffed a nine year-old girl, not to contain some threat she posed, but rather to teach her a lesson for mouthing off to a gym teacher. The decision, written by Clinton appointee Frank Hull and joined by Bush I appointee Ed Carnes and controversial Bush II appointee William Pryor, was fairly compelled by precedent that prevents police officers from restraining a person simply to punish him. Nevertheless, with decisions like Smook out there, it is always good to be reminded that the federal courts still serve their intended purpose as a check on overreaching by the other branches of government. Gray v. Bostic, slip op., No. 06-10216 (11th Cir. Aug. 7, 2006).

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