By Eren Fleck, Student Writer for The Journal of Gender, Race & Justice
Last week, the Supreme Court handed down its decision in Florence v. Board of Chosen Freeholders of County of Burlington.[i] Here, the Majority, in a decision authored by Justice Kennedy, validated correctional officials’ power to closely inspect the naked body of an individual newly admitted to a general population holding facility regardless of the seriousness of the crime for which an individual is held and without requiring correctional officials first determine whether there is any reason to suspect an individual is concealing an item that a strip search would reveal.
In Florence, a state trooper had pulled over the plaintiff, Albert Florence, and discovered a (no-longer-valid) warrant for Florence’s arrest in the state database. The warrant had been issued because Florence had missed a payment to the court for a previous offense. Florence had long-since paid the fine and the warrant was no longer necessary. The officer arrested Florence and placed him in a county detention center. During the intake process, correctional officers inspected Florence’s naked body and required that Florence “open his mouth, lift his tongue, hold out his arms, turn around, and lift his genitals.”[ii] Florence was then transferred to a different correctional facility and correctional officers again inspected Florence’s naked body, “without touching [Florence], an officer looked at [his] ears, nose, mouth, hair, scalp, fingers, hands, arms, armpits, and other body openings.”[iii] Florence was also required to lift his genitals and cough and squat.[iv]
In framing Florence’s claim of unreasonable search and seizure, Kennedy avoids using the term “strip search” and instead refers to the process described above as “a close visual inspection while undressed”[v]. This description obfuscates the vulnerable position of the individual in relation to the power of a government facility. Kennedy disposes of the term, “strip search” as “imprecise”[vi] because the term can indicate a variety of different treatments – from the inspection of a foot instep to the inspection of spread buttocks.[vii] Instead, Kennedy describes the process as “a close visual inspection while undressed.”[viii]
A “close visual inspection while undressed” and a “strip search” are not the same thing. According to the OED online, “inspection” and “search” both connote a close examination or scrutiny. However, “strip” and “while undressed” do not carry the meaning. “Strip” is a verb and is synonymous with the action of undressing oneself or another. In contrast, “while undressed” subtracts the action of removing clothing and leaves behind only the image of a person who happens to be without clothing. In Kennedy’s formulation, the action of becoming undressed is in the past.
This may seem like an unimportant word choice, but I believe it removes the immediacy of removing one’s clothes from the equation and thereby masks the fact that the individual who has become undressed did not have a choice in becoming that way. That individual, held in a correctional facility, did not appear in the facility in an already-naked state – instead, he was required to remove his clothing by others with the power (derived from the government) to make such a requirement of him. It is this very dynamic, the power imbalance between a government over the body of an individual, that raises the need for constitutional vigilance against unreasonable searches and seizures. By obfuscating this dynamic in his formulation of the issue, Kennedy bypasses the heart of the constitutional dynamic at stake.
[i] Florence v. Board of Chosen Freeholders of County of Burlington, 566 U.S. (2011).
[ii] Florence, 566 U.S. at *3
[iii] Florence, 566 U.S. at *3
[iv] Florence, 566 U.S. at *3
[v] Florence, 566 U.S. at *1
[vi] Florence, 566 U.S. at *4.
[vii] Florence, 566 U.S. at *4.
[viii] Florence, 566 U.S. at *1.