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A Reasonable Balance

These days, there is almost nothing the government can do — except try to provide for its human citizens — with which the United States Supreme Court will find fault. Want to break into the wrong house to serve a warrant and terrorize the wrong family without consequence? You cool, man. Want to break into a house on a bad tip and kill an innocent Marine just back from fighting in Iraq? No apology necessary. Want to lock juveniles up for life for something someone else did? Go for it. Want to give police the right to arrest someone because of the department’s sloppy record-keeping and then force that person to bare his asshole to any officer who wants to see it, until the error is discovered and the individual’s asshole is released from prison?

That’s what we call “reasonable.”

What? What? What am I talking about?

I’m talking about the latest case from the United States Supreme Court — Florence v. Board of Chosen Freeholders of County of Burlington (note: that’s Freeholders, not Freeholers) — which indicates that the government can never violate an individual’s constitutional rights, so long as the government is doing something it says it needs to do.

In particular,

courts must defer to the judgment of correctional officials unless the record contains substantial evidence showing their policies are an unnecessary or unjustified response to problems of jail security.

I have frequently suggested that one of the most useful and excellent dissertations for a linguistics doctoral candidate would be to analyze terms like “substantial” as used in criminal cases. My own reading has convinced me that when an individual is challenging the government, “substantial” means you pretty much have to prove, beyond all possible doubt, that which you are arguing; on the flip side, if the government is challenging an individual, then “substantial” means “we have to see something we can pretend supports the government’s view of things without busting our own guts publicly from uncontrollable laughter.”

In Florence, the Supremes must have had a tough time with that. I mean who can with a straight face say, as this Court did, that making people who have been arrested for traffic violations or unpaid fines spread their ass cheeks while a guard inspects their asshole…

…struck a reasonable balance between inmate privacy and the needs of the institutions.

“Reasonable balance.”

Here’s how “reasonable” that balance was: the trial court granted summary judgment for Albert Florence, whose asshole was inspected at two different jail facilities after he was mistakenly arrested due to a computer error.

Summary judgment is something which is not easy for individuals to win. In fact, check the cases and you’ll find that, although summary judgment can be difficult for anyone to win, when summary judgment is won by a party in a civil rights case, that party is almost always the government, or a government employee, defending against the complaint of an “ordinary” person. By “ordinary,” I mean a person who is not supposedly doing something for the government; i.e., they aren’t illegally arresting people, or trying to take away their property using the power of government, or something along those lines.

The easiest way to tell the difference between the parties, aside from the fact that the government nearly always wins these days, is that the individual saying he or she has some particular right is not the government; the one saying the right does not exist, or, if it does exist, it was not violated — that’s the government.

So, in this case, where the United States Supreme Court decision says allowing correctional officers to peek up people’s buttholes after mistaken arrests for failing to pay fines in what are ultimately traffic cases is reasonable, the trial court was so convinced that it was unreasonable, that it granted summary judgment.

Well!

The government knows it’s not supposed to lose, so we move on to the appeal.

Sure enough, the Court of Appeals for the Third Circuit reversed the trial court’s grant of summary judgment. In fact, the Circuit Court was so convinced as to the absolute reasonableness of this, that just enough judges voted to reverse. Or, as the United States Supreme Court recognized,

A divided panel of the United States Court of Appeals for the Third Circuit reversed, holding that the procedures described by the District Court struck a reasonable balance between inmate privacy and the security needs of the two jails.[1]

The Court also noted that

[t]he Federal Courts of Appeals have come to differing conclusions as to whether the Fourth Amendment requires correctional officials to exempt some detainees who will be admitted to the jail’s general population from the searches here at issue.

In other words, some Federal Courts of Appeals think it’s okay for correctional officers to peek at people’s assholes once they’ve entered a jail and some don’t.

But it was even more reasonable than this: of the nine “Justices” of the United States Supreme, only four thought it was unreasonable.

Well, how much more clear can things get than that? Counting the trial judge, it sounds like it was probably only evenly split between “we think this is unreasonable” and “we think this is reasonable.”

But the trial judge doesn’t count, because the Supreme Court managed to get one more vote for the side that thought it was reasonable. With this much disagreement, the default position has to be that it’s reasonable.

Ergo, there can be no mistake: it’s indisputably reasonable.

It might be possible, as some Courts of Appeals have allegedly said,

that practices similar to those at issue here are “demeaning, dehumanizing, undignified, humiliating, terrifying, unpleasant, embarrassing, [and] repulsive, signifying degradation and submission.

Why should anyone care about that? A) We’re talking about ordinary citizens here, not Supreme Court Justices. B) Degrading and instilling in ordinary citizens an attitude of submission to the government is a Good Thing™. C) We’re talking about ordinary citizens here, not Supreme Court Justices.

As the dissent points out, individuals who have been subjected to these types of strip searches include:

  1. A nun, a Sister of Divine Providence for 50 years, who was arrested for trespassing during an antiwar demonstration.
  2. Women who were lactating or menstruating.
  3. Victims of sexual violence.
  4. Individuals detained for driving with a noisy muffler, driving with an inoperable headlight, failing to use a turn signal, or [that most horrible of crimes] riding a bicycle without an audible bell.

And who is the United States Supreme Court to say correctional officers are wrong to say these people should be searched? After all,

[t]he difficulties of operating a detention center must not be underestimated by the courts. [citation omitted] Jails (in the stricter sense of the term, excluding prison facilities) admit more than 13 million inmates a year. [!] … Maintaining safety and order at these institutions requires the expertise of correctional officials, who must have substantial discretion to devise reasonable solutions to the problems they face. The Court has confirmed the importance of deference to correctional officials and explained that a regulation impinging on an inmate’s constitutional rights must be upheld “if it is reasonably related to legitimate penological interests.”

Hmmm…does it matter that the opinion says “inmate’s constitutional rights”? Isn’t the basis of the opinion the need for deference in the face of the expertise of correctional officers for keeping contraband from reaching the general population in custodial facilities? Isn’t it true that attorneys have been caught smuggling contraband in to prisoners? Aren’t the experts — the correctional officers — in just the same position relative to the court in making a determination as to whether or not attorneys should have to show their assholes to gain entry to custodial facilities as they are in making that determination for menstruating nuns, riders of bell-less bicycles, or victims of sexual violence?

As horrifying as it is overall, the opinion is not without its comedic value. For example, one justification given by the Court for allowing guards to peek at someone’s asshole even for a minor offense, like riding a bicycle without a bell, is the need to identify gang tattoos.

Because if I were a really clever gang member — or maybe just an ignorant fuck of a Supreme Court “Justice” — that’s where I’d hide my gang tattoo.

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