Tag: Fourth Amendment

Victory for Decency at the Supreme Court

The Supreme Court’s decision today in Safford Unified School District #1 et al. v. Redding was a victory for privacy and decency. The Court held that a middle school violated the Fourth Amendment rights of a thirteen-year-old girl by strip searching her in a failed effort to find Ibuprofen pills and an over-the-counter painkiller.

The Cato Institute filed an amicus brief, joined by the Rutherford Institute and the Goldwater Institute, opposing such abuses of school officials’ authority. The search in this case should have ended with the student’s backpack and pockets; forcing a teenage girl to pull her bra and panties away from her body for visual inspection is an invasion of privacy that must be reserved for extreme cases. School officials should be authorized to conduct such a search only when they have credible evidence that the student is in possession of objects posing a danger to the school and that the student has hidden them in a place that only a strip search will uncover.

Today’s decision should not come as a surprise. School officials were not granted unlimited police power in the seminal student search case, New Jersey v. T.L.O. Justice Stevens explored the limits of school searches in his partial concurrence and partial dissent, specifically mentioning strip searches. “To the extent that deeply intrusive searches are ever reasonable outside the custodial context, it surely must only be to prevent imminent, and serious harm.”

The Fourth Amendment exists to preserve a balance between the individual’s reasonable expectation of privacy and the state’s need for order and security. Unnecessarily traumatizing students with invasive and humiliating breaches of personal privacy upsets this balance. Today’s decision restores reasonable limits to student searches and provides valuable guidance to school officials.

Schneier and Friends on Fixing Airport Security

Security guru Bruce Schneier comes down on the strictly pragmatic side in this essay called “Fixing Airport Security.” Because of terrorism fears, he says, TSA checkpoints are “here to stay.” The rules should be made more transparent. He also argues for an amendment to some constitutional doctrines:

The Constitution provides us, both Americans and visitors to America, with strong protections against invasive police searches. Two exceptions come into play at airport security checkpoints. The first is “implied consent,” which means that you cannot refuse to be searched; your consent is implied when you purchased your ticket. And the second is “plain view,” which means that if the TSA officer happens to see something unrelated to airport security while screening you, he is allowed to act on that. Both of these principles are well established and make sense, but it’s their combination that turns airport security checkpoints into police-state-like checkpoints.

The comments turn up an important recent Fourth Amendment decision circumscribing TSA searches. In a case called United States v. Fofana, the district court for the southern district of Ohio held that a search of passenger bags going beyond what was necessary to detect articles dangerous to air transportation violated the Fourth Amendment. “[T]he need for heightened security does not render every conceivable checkpoint search procedure constitutionally reasonable,” wrote the court.

Application of this rule throughout the country would not end the “police-state-like checkpoint,” but at least rummaging of our things for non-air-travel-security would be restrained.

I prefer principle over pragmatism and would get rid of TSA.

Dance Like Thomas Jefferson’s Watching

As Thomas Jefferson’s birthday (April 13) approaches – and last night being the first night of Passover, which Jews celebrate to commemorate their deliverance from slavery – I thought I’d comment on a disturbing tale that reminds us again that “the price of liberty is eternal vigilance.”

In celebration of Thomas Jefferson’s (265th) birthday last year, about 20 D.C.-area libertarians gathered at the Jefferson Memorial just before midnight.  The plan was to have a music-through-headphones dance party for the father of the Declaration of Independence (i.e. each person would dance to the tune of his individual iPod). I was actually supposed to attend, but for some reason did not make it.

It was a short-lived party, however, with an ending that would almost certainly have made our nation’s third president frown in disapproval.

Shortly after the silent bopping started, U.S. Park Police officers began to disperse the partygoers. After shooing and pushing revelers (who were drunk only on liberty) off the memorial, one officer confronted the lone remaining dancer, Brooke Oberwetter, and told her to leave.  Oberwetter calmly asked what law or rules she was violating.  The officer provided no explanation but continued to insist that she leave.  Not satisfied with the officer’s response, Oberwetter stood her ground – until the officer pushed her against a stone pillar, handcuffed her, and led her away.

Now, nearly one year later – after the citation against her (for “interfering with an agency function,” whatever that means) was neither dropped nor pursued – Oberwetter filed suit in the U.S. District Court for the District of Columbia against the arresting officer, Kenneth Hilliard, and the Secretary of the Interior, Kenneth Salazar (whose office oversees the Park Police). Oberwetter argues that Hilliard and the Park Police violated her First Amendment rights by interrupting and preventing her expressive activity and freedom of assembly.  She also alleges that here Fourth Amendment rights were violated when she was arrested without probable cause and with excessive force.

The complaint, available here, is a model of legal writing.  Pithy, legally sound, and eminently readable, I cannot recommend it more highly to law students and young lawyers.  This is perhaps not surprising because Oberwetter’s counsel is none other than my friend Alan Gura, who last year successfully argued D.C. v. Heller before the Supreme Court.
Here’s a recent TV news story about the case and here’s Radley Balko’s (formerly of Cato, now at Reason) original post about the incident.

Full disclosure: While our tenures never crossed, Oberwetter is a former Cato employee – and a social acquaintance.  I wish Brooke and Alan the best in their fight against such arbitrary use of government power to oppress basic liberty.  (As Alan told me, a good rule of thumb for police: if you can’t think of any charges, even a few weeks later, it was probably a bad arrest.)  And I hope the incident gets Kevin Bacon thinking sequel.

School Strips Student of Clothes, Rights

A middle-school student who was caught red-handed with prescription-strength ibuprofen (in violation of the school’s drug policy) implicated another 13-year-old girl, Savana Redding. On the sole basis of this accusation, school officials searched Savana’s backpack, finding no evidence of drug use, drug possession, or any other illegal or improper conduct. They then took the girl to the nurse’s office and ordered her to undress. Not finding any pills in Savana’s pants or shirt, the officials ordered the girl to pull out her bra and panties and move them to the side. The observation of Savana’s genital area and breasts also failed to reveal any contraband.

Savana’s mother, whom Savana had not been permitted to call before or during the strip search, sued the school district and officials for violating her daughter’s Fourth Amendment rights to be protected from unreasonable search and seizure. The trial court and a panel of the Ninth Circuit ruled against her, but the en banc Ninth Circuit reversed, finding the search unjustified and unreasonable in scope, and therefore unconstitutional. The Supreme Court granted the school district’s petition for review.

Cato, joined by the Rutherford Institute and Goldwater Institute, filed a brief supporting the Reddings’ suit, arguing that strip searches, particularly of students, are subject to a higher level of scrutiny than other kinds of searches. Such searches are reasonable only when school officials have highly credible evidence showing that (1) the student is in possession of objects posing a significant danger to the school and (2) the student has secreted the objects in a place only a strip search will uncover.

In this case, there was insufficient factual basis for the strip search and the search was not reasonably related and disproportionate to the school officials’ investigation. The Supreme Court should thus affirm the Ninth Circuit and establish that such searches may be undertaken only when compelling evidence suggests a strip search is necessary to preserve school safety and health.

Safford Unified School District No. 1 v. Redding will be argued at the Supreme Court on April 21.

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