U.S. Supreme Court Permits Strip Searches of Any Inmate No Matter the Crime

• Florence v. County of Burlington

Imagine, if you will, that you were arrested for a "minor" crime such as failing to pay child support. Imagine you were taken to jail, and before you were placed in the general population, you were strip searched. Not only have you never touched drugs in your life, but you aren't a violent person. So, what are they searching for? Sounds like an unreasonable search under the 4th Amendment of the U.S. Constitution, right? Wrong. According to the U.S. Supreme Court, corrections officers are now permitted to perform a strip search on any inmate, at any time, regardless of the type of criminal charges that inmate is facing.

In a sharply divided decision, the Court decided the case of Florence v. County of Burlington centering around the arrest and subsequent strip search of Mr. Albert Florence. Mr. Florence was riding in the car with his wife when she was pulled over for speeding. The officer realized that there was a warrant out for Mr. Florence's arrest based on an unpaid fine. Mr. Florence spent a week in jail and was strip searched at least twice. Mr. Florence argued that since his alleged crime involved neither drugs nor violence, the corrections officers did not have reasonable suspicion to search and, thus, the search was unreasonable under the 4th Amendment. The Court disagreed. Focusing on safety, Justice Kennedy (author of the opinion), stated that "people detained for minor offenses can turn out to be the most devious and dangerous criminals." He used two examples of this: Timothy McVeigh, the man who carried out the Oklahoma City bombing, who was arrested for driving without a license; also, one of the September 11th high jackers was pulled over for speeding two days before he allegedly high jacked flight 93. He also cited to prior case law and reasoned that the corrections officers' interest in maintaing safety in jails outweighs the potential for unreasonable and unnecessary searches of certain inmates. Further, he stated that by establishing strict regulations regarding strip searches, more inmates would be deterred from trying to smuggle contraband into the jail in the first place.

The 5-4 opinion was issued with the majority of the Court leaning on the conservative side. The dissenters argued in favor of the standard that requires corrections officers to have reasonable suspicion of contraband in order to execute a strip search. To execute a strip search on a person accused of committing a minor crime that deals neither with drugs nor violence, seems, to some, to be equivalent to an unreasonable search of a person without a warrant. The question now seems to be: Why warrantless searches or searches without probable cause are violations of the 4th Amendment and a strip search of a person who is highly unlikely to ever attempt to smuggle contraband into a jail is not a violation of the 4th Amendment? The answer may never be revealed.

Georgia Supreme Court Holds Assisted Suicide Legislation Unconstitutional

The Georgia Supreme Court held yesterday that a law banning advertisements for assisted suicide services violates the constitutionally protected right to freedom of speech. The case stemmed from the arrest of members of the Final Exit Network in 2009. Four members of the group were charged with assisting in the suicide of a cancer patient. The members were arrested after they were approached by an undercover GBI investigator posing as someone in need of assisted suicide. According to the testimony of the investigator, as his suicide date was approaching, Ted Goodwin (former President of the group), "walked the agent through the steps and demonstrated how he would hold the agent's hands to stop him from removing the 'exit bag'." The exit bag is a devise used by the group to aid in the suicide.

Once the group members were arrested, they immediately challenged the law's constitutionality arguing that it violated their rights of freedom of speech. Specifically, they argued that the law prescribed punishment for those people involved in assisted suicide only if they spoke publicly about it. The GA Supreme Court agreed. They reasoned that the law does not prohibit the act of assisting in suicide, rather it only prohibits advertising or promoting assisted suicide. This is an obvious ban on a particular type of speech; the very thing the First Amendment is supposed to prevent. The Court stated in part,

"The State has failed to provide any explanation or evidence as to why a public advertisement or offer to assist in an otherwise legal activity is sufficiently problematic to justify an intrusion on protected speech rights."

The Court further suggested that if the State has an interest in the preservation of human life, they would propose legislation which prohibited the act of assisted suicide rather than prohibiting the public speech. Sources believe that the General Assembly is preparing to consider legislation that prohibits assisted suicide within the next term.

President Obama Fails to Veto the National Defense Authorization Act

In a surprising move today by President Obama, the White House issued a statement supporting the controversial National Defense Authorization Act. In an earlier blog post, we highlighted some of the more controversial provisions of the Act. In short, critics fear this law oversteps the bounds separating government power and civil liberties. One of the main provisions authorizes the U.S. military to arrest and indefinitely detain alleged Al Qaeda members or other terrorist operatives captured on U.S. soil.

The news comes as quite a shock to many people due to President Obama's recent assurance that he would veto the NDAA when it fell on his desk. The reasoning behind the "change of heart," according to CBS News, was because the military mandate in the final version of the act had been "softened." The statement issued by the White House said in part,

"We have concluded that the language does not challenge or constrain the President's ability to collect intelligence, incapacitate dangerous terrorists, and protect the American people, and the President's senior advisors will not recommend a veto."

Kenneth Roth, executive director of Human Rights Watch states, "By signing this defense spending bill, President Obama will go down in history as the president who enshrined indefinite detention without trial in U.S. law. In the past, Obama has lauded the importance of being on the right side of history, but today he is definitely on the wrong side."

Even FBI Director Robert Mueller opposes the Act because of the restraints it puts on the federal government's ability to investigate and prevent terrorism. He said this when he expressed his concern, "My concern is that you don't want FBI agents and the military showing up at the same time, with some uncertainty as to who is in control."

This news will no doubt cause controversy for President Obama in his upcoming bid for reelection. What is more important, however, is the effect it will have on the civil liberties of U.S. citizens in the future. Unfortunately, only time will tell.

U.S. Senate Passes The National Defense Authorization Act

The Huffington Post reports today that the U.S. Senate voted 93 to 7 to pass the National Defense Authorization Act (NDAA). In an interesting article featured on the American Constitution Society Blog, Stephen Vladeck, a law professor and Associate Dean at American University Washington College of Law, highlights some of the more controversial portions of the NDAA.

The NDAA, passed just over a decade after the Authorization for the Use of Military Force (AUMF), seems to greatly increase governmental power to detain persons suspected of participating in and aiding terrorist activities against the U.S. While terrorism awareness and prevention have obviously been priorities in the government since September 11, 2001, many believe this Act crosses lines that should have never been drawn. The AUMF left many questions unanswered and over the last decade, courts have attempted to answer some of these questions. For instance, they have reached conflicting views on whether AUMF authorizes the detention of U.S. citizens or non-citizens lawfully present within the United States. Most importantly though, the courts have consistently held that the purpose of the AUMF was to authorize the government to use military force on those reasonably believed to be tied to the September 11, 2001 terrorist attacks. A main concern of the NDAA, according to Vladeck, is that it severs the requirement that detention be tied to involvement with the September 11, 2001 attacks.

Many say that the NDAA expands the authority to detain to dangerous measures, disintegrating the boundaries used to protect the liberties of U.S. citizens. The NDAA authorizes, in addition to the AUMF,

"any detention of a person who was a part of or substantially supported Al Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces."

According to Vladeck, "the NDAA effectively authorizes the military detention of any individual who provides assistance anywhere in the world to any group engaged in hostilities against any of our coalition partners, whether or not the United States is in any way involved in (or even affected by) that particular conflict."

An obvious question is what the government would define as "direct support" of these enemy forces: money, outward praise, logical assistance, full-fledge involvement, etc. This particular language is undoubtedly vague and could include many different actions.

Another question with the language is what groups are included in the term "associated forces" because many may believe human rights activists, political protestors and even the infamous "occupiers" are "associated forces." Would that then permit the government to detain members of these "associated forces?"

Former FBI agent and author of the article in the Huffington Post, Coleen Rowley, expresses concern over another part of the NDAA; one that would be particularly damaging to the application of certain provisions of the Bill of Rights. According to Rowley, the NDAA would authorize the government to "decide who gets an old-fashioned trial (along with a right to an attorney and right against self-incrimination) and who gets detained without due process and put into a modern legal limbo." Some, including Rowley, believe the NDAA allows the government to treat U.S. citizens suspected of aiding terrorist groups as if they were "enemy combatants", and therefore, not to be afforded the same due process rights as other U.S. citizens accused of various crimes.

The biggest fear among the critics of the Act is that the already powerful U.S. Government would be given far more power than was originally intended and drafted into the Constitution. That U.S. citizens could be detained without due process for potential "support" or "aid" of enemy forces goes against the entire purpose of the Constitution.

For the vocal critics against the NDAA and all of those who may be quietly doubting its constitutionality, it seems President Obama has every intention of vetoing the Act once it reaches his desk. While that may provide some comfort, many fear this is only the first step to an eventual decline in the everyday liberties of U.S. citizens.

More than $1.5 million lost by Mayor Ron Littlefield and the City of Chattanooga in 2011 for wrongful termination of Police Officers

Todays' jury verdict of  $680,000 in favor of Chattanooga Police Officer Mickel Hoback is the second time this year that the city of Chattanooga has been ordered to pay out for wrongfully terminating their own officers.  In March of this year the city paid $840,000 to long time CPD Asst. Chiefs Skip Vaugh and Charles Cooke for their wrongful termination.  That totals $1,520,000.00 in awards for terminations approved by Mayor Ron Littlefield. These are not easy cases to prove and historically juries have been sympathetic to an executive's decision to make business decisions, even blatantly poor ones.  But these cases--both are jury verdicts in favor of the officers--show that jurors can and will act when they perceive manifest injustice toward officers employment.  Today's case won by attorneys Phil Lawrence and Mike Richardson was about the Americans with Disabilities Act (PST from serving with the Marines in Iraq) and previously Vaughn & Cooke's case involved proven claims of age discrimination by the Littlefield administration.

Here is information about the award in the Vaughn and Cooke case. Former Chattanooga Officers Receive $840,000. Lee Davis and Jonathan Guthrie represented Officers Vaughn and Cooke.

Chattanooga Police Officer Awarded $680,000 for Wrongful Termination by City

The Chattanoogan.com reports that a Federal Court jury on Thursday awarded $680,000 in damages to a former Chattanooga Police Officer who was terminated related to Post Traumatic Stress Disorder from his service in Iraq. The award against the city of Chattanooga was for Mickel Hoback. Here is more on the case.

Attorneys Phil Lawrence and Michael Richardson said he served well as a police officer from 2000 to his time in the service from June 2004 to December 2005. He then returned to the police force.

Then-Police Chief Freeman Cooper terminated him when he learned that he had been involuntarily committed to a Veterans Administration facility.