When President Obama released his long-form birth certificate in response to the tirades of the lunatic fringe "Birthers," you could almost hear the groans of blacks all over America. We understood the president's desire to quell the distraction drummed up by the Birthers, whose thinly veiled appeal to tropes of racial "otherness" had become the repository for right-wing conspiracists and cowardly Republicans afraid to call out the toxic elements in their base.
But the act of having to "show one's papers" is familiar to many blacks who have wandered into spaces reserved for whites. Or who have even just driven their cars down the nation's highways. The phenomenon of "driving while black" has become a metaphor for all of those circumstances in which people of color find themselves compelled to produce written proof that they belong on public roads, in private pools, at their own front doors or, in the case of our president, in the White House.
But "driving while black" is not just a metaphor. The evidence that blacks are disproportionately pulled over on highways by law-enforcement officials is staggering and largely unchallenged. This is not a Southern phenomenon. The most carefully documented proof of law-enforcement officers arbitrarily pulling over motorists for "driving while black" is from a study in New Jersey.
A report in the late 1990s showed that although 75 percent of drivers on Interstate 95 in New Jersey were white, and white and black motorists committed driving infractions at the same rate, 73.2 percent of those pulled over and arrested by troopers were black, while only 23 percent were white. The lawsuit resulting from New Jersey's racial-profiling policies concluded with a consent decree in which the state pledged to undertake significant reforms in its policing policies. The decree was dissolved only two years ago.
Armed with the knowledge of New Jersey's history of "driving while black" arrests, and having been victim of what he believed was a "driving while black" stop in the past, Albert Florence, a financial adviser for a high-end car dealership, carried his papers in the glove compartment of his car. On the night of March 3, 2005, that didn't help him.
Despite showing a police officer the original copy of a document proving that he had completed payment on an outstanding fine on a civil-contempt conviction, Florence was arrested in front of his wife and 4-year-old son and held for a week in two different New Jersey jails. He was subjected to a humiliating strip search at each jail. The experience, Florence said, was one he "wouldn't wish on his worst enemy."
This week the Supreme Court will hear arguments in a case in which Florence argues that jail officials of both Burlington and Essex counties in New Jersey violated his constitutional rights by subjecting him to an illegal search. The case of Florence v. Board of Chosen Freeholders of County of Burlington will test whether the state jail system may conduct strip searches as a matter of course on all arrestees.
The implications of the court's decision in the case extend well beyond victims of "driving while black." At issue are the constitutional rights of the more than 14 million people who are arrested in the U.S. each year. Fewer than a million of those arrested are accused of violent crimes. The vast majority of those arrested are detained on minor charges, including traffic violations. Many are wrongly arrested. Many have charges dropped, are never indicted or receive probation before judgment. Many are arrested after the kind of stop that landed Albert Florence in jail.
Should all of those arrested be compelled, as Florence says he was, to strip naked, lift their genitals, squat and cough in front of several police officers? Twice? Or does the Fourth Amendment prohibition against illegal searches and seizures require jail officials to offer a reasonable suspicion that a particular arrestee may have dangerous contraband before ordering a strip search?
Florence's case is particularly egregious, of course. But the indignities of his case dramatize why an across-the-board strip-search policy should not withstand constitutional scrutiny. Florence wasn't even driving the car when it was pulled over by the authorities. His pregnant wife was driving their BMW. The family was on its way to the home of Mrs. Florence's parents to celebrate the Florences' purchase of a new home.
The officers asked who owned the car, and Mrs. Florence indicated that it was her husband's. When the officers ran Albert Florence's name through their computer database, it indicated that he was wanted on an outstanding warrant. Florence was handcuffed and placed in the police car. Mrs. Florence produced the document signed by a judge and containing the raised seal that indicated his payment of the judgment.
Florence carried the original of the document in his car because he'd been arrested on a minor infraction in the past based on what Florence believed was a racialized traffic stop. Despite the clear evidence that the information in the police computer was incorrect, Florence was arrested anyway.
Following his arrest, under New Jersey policy, Florence should have been brought before a magistrate within 24 hours. Instead he was held for a week and transferred between two jails. He was strip-searched at the first jail and at the second, tool — the second time together with several other prisoners.
When, after a week in jail (during which he was provided no toothpaste, toothbrush or soap), Florence finally had an opportunity to bring his case in front of a magistrate, he was immediately released. Florence's description of how an evening celebration of middle-class success turned into a weeklong nightmare, triggered by the police — who to this day have never explained why they pulled over the Florences — and by jailers in two New Jersey counties, should be required listening for all of the court's justices.
Without question, jail officials should have the latitude to search those arrestees who they have reason to believe may be hiding contraband or weapons on their person. Such a search would not violate the Fourth Amendment's prohibition against illegal searches and seizures. The Supreme Court affirmed that 40 years ago in Bell v. Wolfish. But reliance on the court's decision in Wolfish is misplaced here.
Burlington County jail officials do not even argue that their search was designed to turn up such items. Instead, they contend that their searches are designed to allow officers to see if arrestees have gang tattoos. Thus they require every prisoner to take a shower using Kwell anti-lice soap in the presence of two officers.
While conceding that Florence was "kwelled," as they call it, county jail officials deny compelling Florence to lift his genitals and cough. Are jail officials constitutionally permitted to even routinely impose "kwelling" on every arrestee in the presence of police officers without any particularized suspicion of gang affiliation or danger?
For years, victims of "driving while black" practices have described the deep humiliation they have experienced, the sense of dislocation from their status as citizens and a disconnection from the promise of fairness in the law. Should the Supreme Court uphold the county jail's strip-search policy, it may well mean that millions of Americans — arrested for crimes and misdemeanors large and small every day — may suffer the even deeper and more sustained traumatic intrusion on their personal dignity that Albert Florence suffered at the Burlington and Essex county jails.
Sherrilyn A. Ifill teaches at the Francis King Carey School of Law of the University of Maryland.
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