posted August 17, 2006 10:35 PM              

Wednesday, August 16, 2006
Stripping Justice Bare

On August 9, the Eighth Circuit upheld the strip search of a 16-year-old girl detained for nothing more than a curfew violation, despite the fact that law enforcement officials had absolutely no reason to believe that the girl possessed anything dangerous. Responsible for blasting this hole in the Fourth Amendment’s privacy protections was a trio of Bush II appointees – Steven Colloton, Duane Benton and Michael Melloy.

The police in Sioux Falls, South Dakota arrested Jodie Smook on August 8, 1999 for staying out past 11:00 p.m. When they took her to the juvenile detention facility for processing, Minnehaha County officials forced her to remove all of her clothes except her underwear. The strip search was conducted under a blanket policy that didn’t require officials to make any individualized assessment of whether a search was justified and didn’t even draw broader distinctions between juveniles arrested for the most serious offenses and those arrested for, well, curfew violations. The blanket policy seemed to fly in the face of court rulings country-wide. Because, in the words of one court, a strip search is “an invasion of personal rights of the first magnitude” that “can only be seen as thoroughly degrading and frightening,” the courts have uniformly held that government officials may not strip search an adult detained for minor infractions, such as traffic violations, unless they have a reason to think he or she is hiding contraband.

So why did the Eighth Circuit permit county officials to conduct suspicionless strip searches of minors like Jodie Smook, while adults arrested for low-level offenses enjoy Fourth Amendment protection? Indeed, why did Judges Colloton, Benton and Melloy allow the government to do to juvenile curfew-violators what it may otherwise do only to adults held on felony charges, particularly when, according to other courts, “children are especially susceptible to possible traumas from strip searches?” Ironically, it was because the county professed that its goal was to protect minors – protect them from doing harm to themselves and to others.

The problem, however, is that the county’s claim about the blanket policy was nothing more than a bald assertion: the county failed to point to any evidence showing either that strip searching curfew arrestees helped to uncover contraband or that less intrusive searches, like pat down searches, wouldn’t have done the trick. This is something that recent circuit precedent says it was required to show. In Doe v. Little Rock School District, the Eighth Circuit struck down the practice of conducting suspicionless searches of high school students’ bags because the school district offered no evidence that hidden contraband was a problem.

The Doe precedent illustrates another problem with the Smook ruling: If evidentiarily-unsupported, suspicionless searches of school children’s mere belongings are unconstitutional in the Eighth Circuit, how can evidentiarily-unsupported, suspicionless strip searches of minors’ bodies be OK?

No one disputes that when there is reason to believe that a particular juvenile possesses weapons or other items that pose a genuine threat to herself or others, a search – perhaps even a strip search – is justified. But in the absence of such evidence, paying mere lip service to the welfare of children is not enough to give the government what the Eighth Circuit in Doe called “carte blanche” to circumvent the Fourth Amendment’s essential safeguards. This would seem especially true when it comes to a practice that courts have universally recognized as “demeaning” and “dehumanizing” for adults, let alone children. Which is almost certainly why Minnehaha County altered its policy just a few months after Smook’s arrest, and why, the following year, the South Dakota legislature completely banned strip searches of minors detained solely for curfew violations. Smook v. Minnehaha County, slip op., No. 05-1363 (8th Cir. Aug. 9, 2006).

BY CONTRAST … Making for an interesting companion to the Smook decision, the Eleventh Circuit found on August 7 that a police officer violated the Fourth Amendment when he handcuffed a nine year-old girl, not to contain some threat she posed, but rather to teach her a lesson for mouthing off to a gym teacher. The decision, written by Clinton appointee Frank Hull and joined by Bush I appointee Ed Carnes and controversial Bush II appointee William Pryor, was fairly compelled by precedent that prevents police officers from restraining a person simply to punish him. Nevertheless, with decisions like Smook out there, it is always good to be reminded that the federal courts still serve their intended purpose as a check on overreaching by the other branches of government. Gray v. Bostic, slip op., No. 06-10216 (11th Cir. Aug. 7, 2006).

posted August 18, 2006 11:35 AM              

And I'm going to further assume that they really only did that because they wanted to see her naked.

And now, I'm going to say what I think about this.

These guys are dirty old men who abused their positions to get their jollies, at the expense of a defensless young girl. If that had happened to my daughter.... grrr. I don't know what I would do, but I wouldn't sit quiet about it.

posted August 18, 2006 01:50 PM            

In any event, if this story is correct...as reported, I hope they appeal to the US Supreme Court. There is a principle to be upheld here.

quote:

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I guess now that Bush has stocked the courts the police can have a field day with young girls and women for even the most minor infractions of the law, possibly even traffic tickets....Mirandee

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posted August 18, 2006 05:36 PM            

What I would like to know though is what juvenile is NOT searched when being processed through the juvenile detention center?

If she refused to give her address and they processed her in the center for an overnight stay, then they have to conduct a search for the safety of others.

posted August 18, 2006 05:42 PM            

"Upholding the strip-search policy, the 8th U.S. Circuit Court of Appeals said detention center officials are responsible for making sure that juveniles are not hiding weapons or drugs."

"The search was conducted in a private room by a female employee and was "done in the least intrusive manner feasible," said Gary Thimsen, lawyer for the county and detention center officials."

Strip searches ruled legal

SIOUX FALLS, S.D. (AP) -- A federal appeals court has ruled that strip searches are allowed at the Minnehaha County Detention Center.

The decision overturned U.S. District Judge Lawrence Piersol, who had ruled the policy of strip-searching juveniles accused of minor offenses was unconstitutional.

Jodie Smook of Luverne, Minn., challenged the policy in court. In 1999, as a 16-year-old, Smook had to strip to her underwear for a curfew violation. Officials searched her for weapons, drugs and other contraband.

Upholding the strip-search policy, the 8th U.S. Circuit Court of Appeals said detention center officials are responsible for making sure that juveniles are not hiding weapons or drugs.

Smook's lawyer said an appeal is likely.

The case triggered changes in the center's search policy. Searches are not done if parents agree to pick up their children within two hours. And lawmakers prohibited strip searches of juveniles held for curfew violations unless there is probable cause.

Matt Piers of Chicago, who is Smook's lawyer, said the changes at the center are "absolutely not good enough."

"The issue is really much broader than curfew violators," he said.

The context of the situation meant that the Fourth Amendment to the Constitution, which protects against unreasonable searches, was not violated, Judge Steven Colloton wrote in the opinion.

The search was conducted in a private room by a female employee and was "done in the least intrusive manner feasible," said Gary Thimsen, lawyer for the county and detention center officials.

Piers said some members of the class-action lawsuit were naked when detention center officials searched them. Such searches were in line with policy at the time, he said.

"The fact is, the law is crystal clear that you couldn't do this to grown-ups," Piers said. "Children are injured to a much greater extent (than adults) when subjected to this procedure."

Thimsen said he objected to the term "strip-search" in news coverage of Smook's case because it can evoke images of nudity and body-cavity searches.

Piers said it is commonly understood that "strip" means to remove some and not necessarily all clothing.

"I defy you to find a place where it's defined as taking all your clothing off," he said.

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Information from: Argus Leader, http://www.argusleader.com

So.... the reason for the search was stated (she was processed INTO the juve center because no one would pick her up) and a FEMALE guard searched her.

posted August 18, 2006 06:04 PM              

But I still maintain...IF ANY DIRTY OLD MAN DID THAT TO MY DAUGHTER...

posted August 18, 2006 07:01 PM            

In any case, with our juvenile detention students that we work with for school grants and otherwise, we can even provide them with pencils of ANY color other than gray AND they have to be mechanical flimsy ones so that they aren't used as a shank.

People hide weird things in their body openings that are later used as weapons or are narcotic in nature.

posted August 18, 2006 07:05 PM            

I ask that because it is just as easy for a 16 yo to get picked up for curfew violation on purpose and smuggle in a weapon to give to someone else.

Even visitors have to be searhed and watched- (they have to open their mouths to prove NO small baloons of herion).

Often offenders will smuggle baggies of heroin up their rears and the cops won't do a cavity search on the street - it has to be done during processing.

A side note - what if that girl had smuggled in a shank that was later used to murder another detainee? I wonder what the outcry would have been then? We probably wouldn't have heard a peep unless it happened while Bush was in office- they this thread headline would read "Bush responsible for lax security in Juvenile Detention Center that lead to the death of a child".

posted August 18, 2006 07:31 PM              

The point is that this was done for a very minor infraction, being out after curfew even though Adults charged with felonies are not allowed to be stripped searched without due cause to believe they have a weapon or contraband on their person.

Also consider the other horror mentioned in the article of a police officer who handcuffed a 9 year old girl simply to "teach her lesson" for smarting off to her gym teacher. The poor child must have been truamatized.

I had a similar experience as a young teen so I know the feeling. Me, my sister and a group of our friends decided one beautiful spring day on the way to school to skip out. We went to one of our friend's house who lived with just her dad and he was at work. We listened to records, did each others hair and nails, you know, girl stuff.

My mom decided to teach us a lesson when the truant officer came to the door and informed her that neither my sister and I were in school and the girls that we were known to hang out with in school did not show up either. So my mom called the cops on us and told them about it and where she felt they could find us.

We were taken to the police station in cop cars and held there until our parents came and got us. In the meantime some of the cops were making sexual suggestions to us and others had one of my friends crying by telling us they were going to beat us with rubber hoses. Another officer walked by the bench where we were all seated and inquired to one of the police officers why we were there. The guy answered by saying we were picked up for prostitution and then started laughing.

After my sister and I informed my mom of all this she felt very bad for calling the police on us never thinking those things could happen but we still got grounded for two weeks.

posted August 18, 2006 07:39 PM              

It was the appointees of G.W. Bush who ruled that it was okay to strip search a 16 year old girl for just being out after curfew. So since he appointed these men to the bench one could say the blame is not misplaced. Just as it was not misplaced when the man he appointed to head FEMA blew it badly in the aftermath of hurricane Katrina.

posted August 18, 2006 07:57 PM            

You first posted an article that only provided half of the facts.

We later find out that she had a female search her, that she was processed and spent the night in the detention center and no one came to pick her up.

It wasn't like she was out and about coming home from work and Bam.. the cops just put the cuffs on her.

Have you noticed she isn't saying much about that? I'd like to see the legal documents...

In fact, she was with 3 other juveniles after curfew.. do you think they were just playing monopoly?

During the search the guards had authority to make the juveniles strip, shower and they could do a cavity search. IN this case (this is undisputed by both) none of the juveniles were forced to undergo a shower or cavity search.

A FEMALE guard had the female juveniles disrobe down to their undergarments.. NO BODY WAS TOUCHED, NO CAVITY WAS SEARCHED.

This "juvenile" also complained that she was forced to answer religious questions.. thus also trying to sue for free excercise of religion (DO YOU SEE WHERE THIS IS GOING? These kids see $$$$$$) ...the claims were dismissed and have not even been mentioned in the appeal (oh.. imagine that).

In Sept. 1999 the JDC changed their admission policy so that searches of juveniles comitting minor crimes no longer took place IF the parents agree to pick up the kids in two hours. After that, they become a liability (you don't seem to know much about the detention process and I am sure you think they have the funding to have a guard babysit until the parents show up the next morning).

Hmmmm.. I think you might find the actual case documents interesting. She was allowed to wear her bra and panties and even testified it was like wearing her bathing suit.
http://www.ca8.uscourts.gov/opndir/06/08/051363P.pdf#search=%22Jodie%20Smook%20%22

****Edit.. nice that you changed your post from the accusatory 'I would expect you to say this since your dad was a polic officer'

posted August 18, 2006 08:02 PM            

The JDC houses ALL Juveniles that have committed ALL crimes with the exception of those juveniles that have been tried and convicted as an Adult.