April 2012

  • April 5, 2012
    Guest Post

    By Angela J. Davis, Professor of Law, American University, Washington College of Law


    The Supreme Court upheld the constitutionality of a jailhouse strip search of a man who was wrongfully arrested for a minor offense in Florence v. Board of Chosen Freeholders of County of Burlington. Mr. Florence was riding in his car with his pregnant wife and son (his wife was driving) when a police officer pulled them over. The officer ran Mr. Florence’s name through his computer and discovered a warrant for his arrest. The warrant was issued when Mr. Florence (pictured) failed to appear at a contempt hearing regarding fines that he had not paid. Mr. Florence did appear, and he paid the fines, but the warrant was not removed from the computer database. Mr. Florence actually showed the police officer written documentation that he had complied with the court’s order, but the officer arrested him anyway. Mr. Florence was incarcerated for six days and subjected to two complete strip searches requiring him to lift his genitals, squat, cough and spread his buttocks.  He was ultimately released when a court discovered the mistake. 

    The 5-4 decision, written by Justice Anthony Kennedy and joined by the conservative wing of the court, rejected Mr. Florence’s argument that the searches were unreasonable under the Fourth Amendment. The Court also rejected Mr. Florence’s proposal that new detainees arrested for minor offenses be exempt from strip searches unless there is reasonable suspicion to believe they are hiding contraband. The Court called the proposal “unworkable” – an interesting characterization considering the fact that the proposal seems to be working just fine in the ten states where the reasonable suspicion standard is currently the law.

  • April 5, 2012
    Guest Post

    By Deborah Ramirez, professor of law, Northeastern University School of Law, and Tara Lai Quinlan, a New York attorney. Professor Ramirez is founder of the Partnering for Prevention and Community Safety Initiative (PfP), and she recently testified before the U.S. House Subcommittee on the Constitution, Civil Rights, and Civil Liberties on the Trayvon Martin killing. Ms. Quinlan is director of the Partnering for Prevention and Community Safety Initiative (PfP), and is pursuing an LLM in Criminal Law, Criminology & Criminal Justice at King’s College London, focusing on racial profiling and community policing in the United Kingdom.


    Local law enforcement officials may not have fired the shot that killed Trayvon Martin, but police and policymakers are responsible for the systemic failures that contributed to this tragedy, and must address them in concrete steps to ensure that other innocent young men do not die needlessly.

    One of the most important systemic flaws highlighted by this tragedy is that private security officers and volunteer community patrols have increasingly assumed law enforcement duties from cash-strapped police departments.  Today one in three policing related dollars is actually spent on private security guards and community patrols. In many communities across the country it is not uncommon for private security officers and volunteer community patrols to carry guns, patrol neighborhoods, report suspicious persons in the neighborhood, and deter unwanted people from entering or hanging out in the neighborhood. Cash-strapped police department often welcome private security officers and volunteer community patrols because they can serve as eyes and ears in local communities where police cannot be as often.

    The increased privatization of law enforcement duties like neighborhood patrolling raises important questions about government accountability and government oversight. While police departments like Sanford routinely try to distance themselves from legal accountability when citizens like George Zimmerman take the law into their own hands, law enforcement officials are ultimately responsible for keeping our communities safe. Where was the training and oversight for Zimmerman about handling and reporting suspicious activity in the neighborhood? Where is the training for the throngs of other George Zimmermans across the country? While police officers are responsible for every bullet fired, where is similar accountability for private security officers and volunteer community patrols?

  • April 4, 2012

    by Jeremy Leaming

    The right-wing challengers of the Affordable Care Act have spent more than a year honing the broccoli argument – if the federal government can require people to buy health care insurance then our fragile liberty will crumble because the monstrous federal government will order us all to buy broccoli, gym memberships and, well, who knows what else.

    Last week’s oral argument in HHS v. Florida revealed that the broccoli argument is seemingly being taken seriously by more than just libertarian law professors, such as Georgetown’s Randy Barnett. Justice Antonin Scalia aped right-wing talking points when he pelted Solicitor General Donald Verrilli’s defense of the ACA’s minimum coverage provision, which will require some people to carry a minimum amount of health care insurance starting in 2014, with the, ‘oh hell-broccoli-is-next,’ argument.

    But former Mich. Gov. Jennifer Granholm (pictured) hopes the Supreme Court’s conservative justices can get up-to-speed on how the health insurance market works, and consider how invalidating the landmark law will impact the lives of tens of millions of Americans who do not have the luxuries the high court justices enjoy. 

    Granholm’s hope, however, may likely be too much of a stretch, especially for a conservative majority that found a way to run roughshod over longstanding precedent in Citizens United v. FEC, giving corporations unfettered ability to influence campaigns.  

    Granholm, a speaker at the 2009 ACS National Convention, writing for Politico focuses on her hairdresser, Carmelita, who explained to Granholm that she already participates in the health care insurance market, albeit in a manner that leaves her wishing she could afford health care insurance.

    Carmelita’s employers do not provide health care insurance, and she can’t afford to purchase coverage. “It’s just too expensive,” she said. “No way I can afford it.”

    But if she could afford it, she would gladly purchase it, because she’s still “paying off a $3,000 health care bill from last year when I had walking pneumonia and finally went to see the doctor. They ordered an X-ray of my chest, and my life hasn’t been the same since, trying to pay that medical bill. Of course, I’d have health insurance if I could afford it! Anybody would.”

  • April 3, 2012

    by Nicole Flatow

    Responding to the concerns of 39 attorneys general over the impact of piracy on the U.S. manufacturing industry, a bipartisan group of senators has asked the Federal Trade Commission to “use all tools at your disposal to fight the theft of and use of stolen American manufacturing information technology (IT) and intellectual property (IP).”

    The request comes in response to a November letter from the National Association of Attorneys General that asked the FTC to help the AGs combat piracy by deploying a section of the Federal Trade Commission Act that prohibits unfair methods of competition.

    “Competition is the bedrock of free enterprise,” they write. “Competition is unfairly distorted, however, when a manufacturer gains a cost advantage by using stolen information technology, whether in its business operations or manufacturing processes. It offends our sense of fairness when such wrongdoers reap commercial advantage from their illegal acts.”

  • April 3, 2012
    Guest Post

    By Inimai Chettiar, Policy Counsel at the American Civil Liberties Union, where she serves as national legislative counsel to end mass incarceration in states across the country.


    Yesterday a divided Supreme Court ruled in Florence v. Burlington that any person arrested can be subject to a strip search - even for a minor offense or traffic violation – without any reason to suspect that they may be carrying a weapon or contraband. (Read the ACLU press release here.)

    As disturbing as the practice of subjecting people accused of minor offenses to degrading strip searches is, it wouldn’t be a problem if those people weren’t thrown behind bars in the first place. Unfortunately, U.S. jails are full of people accused of minor, nonviolent crimes. One such person was Albert Florence (pictured), a 35-year-old Black man erroneously arrested in 2005 for failing to pay a traffic fine he had already paid –  and whose experience is the center of the case decided by the Court.

    A New Jersey state trooper pulled over Florence’s pregnant wife as she was driving Florence and their four-year-old son to dinner to celebrate their purchase of a home.  Because Florence owned the vehicle, the officer ran his license and discovered a warrant for an outstanding noncriminal traffic fine. Despite the fact that Florence had already paid the fine and carried an official letter proving it, the police handcuffed and arrested him and dragged him off to jail.  He was incarcerated for six days and subjected to two invasive strip searches. As Florence recounts, "I was just told, 'Do as you're told.' Wash in this disgusting soap and obey the directions of the officer who was instructing me to turn around, lift my genitals up, turn around, and squat." The next day a judge freed Florence, confirming that he had in fact paid his fine.  (You can hear more from Florence in an ACS podcast interview. )

    In a 5-4 opinion, the Court held that two New Jersey county jails had not violated the Fourth Amendment by routinely strip searching all new detainees including those, like Albert Florence, who had been arrested for minor offenses and were unlikely to spend more than one night in jail. With 13 million Americans jailed each year, the decision could have far reaching consequences. 

    At the same time, the Court was careful to note that the strip search policies it upheld did not involve any physical contact with the detainee, and only applied to detainees who were housed with the general population. Whether those reservations prove to be meaningful constraints on the power of prison officials to strip search detainees remains to be seen. More significantly, perhaps, at least 10 states already prohibit routine strip searches without reasonable suspicion, including New Jersey. (Read the ACLU’s amicus brief submitted on behalf of former attorneys general of New Jersey.)

    Yesterday’s ruling provides the country with an opportune moment to reflect on our epidemic of mass incarceration. There are six million people currently in prison or under correctional supervision in the U.S. — more than were in Stalin’s gulags.