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Philadelphia Daily News : 5 Attorneys General Support Lask

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ACLU takes strip-search to US high court
Posted: Wednesday, June 29, 2011

By Danielle Camilli Staff writer Calkins Media, Inc.

MOUNT HOLLY -The American Civil Liberties Union has filed a brief in opposition of strip searches for people jailed on minor offenses in the ongoing litigation against Burlington and Essex counties that is now before the U.S. Supreme Court.

The New Jersey chapter, joined by its national partner, filed the friend-ofthe- court brief on behalf of five former state attorneys general, who maintain that the strip-search policies at county jails violate state law, the Attorney General’s Office’s strip-search requirements policy, Department of Corrections’ regulations, and standards accepted by the American Bar Association, as well as the Constitution.

With the lower courts significantly split on the constitutionality of strip searches in the nation’s jails, the U.S. Supreme Court in April granted the petition of a Burlington County man’s class-action lawsuit against the Burlington County and Essex County freeholder boards that will test the law of the land.

The petitioners’ briefs were due earlier this month, and the defendant counties have until Aug. 19 to file their briefs, officials said. Oral arguments are expected to be heard in the fall.

Albert Florence’s class-action lawsuit stems from his 2005 arrest on an erroneous bench warrant for alleged unpaid fines in Essex County. The Bordentown Township resident was arrested in Burlington County, transferred to the Grant Street jail, and searched.

He was searched again when he was transferred to Essex County and spent a day there before authorities realized the warrant was improperly issued.

In his suit filed by New York attorney Susan Chana Lask, Florence claimed the searches violated his constitutional protection against unreasonable search as a nonviolent offender held on a minor, or nonindictable, offense.

In September, the U.S. Court of Appeals for the 3rd Circuit in Philadelphia ruled that the strip searches of inmates held for minor offenses at the Burlington and Essex county jails are legal, reversing a 2009 decision that found “blanket searches” unconstitutional.

The original decision could have cost the counties millions of dollars in monetary damages. Other counties have settled similar class-action lawsuits and paid out millions.

Now the U.S. Supreme Court will decide.

“A strip search is a demeaning and humiliating experience for anyone,” said Ed Barocas, legal director for the ACLU-NJ. “But strip-searching every detainee is unconstitutional and results in intrusions without justification. Strip-searching a person who is in jail for minor offenses, such as unpaid traffic tickets, does not increase security at a jail. It has been proven in this state and other states that removing blanket strip searches does not compromise jail security.”

The ACLU brief was filed on behalf of former state Attorneys General Robert J. Del Tufo, Deborah T. Poritz, John J. Farmer Jr., Peter C. Harvey and Zulima V. Farber.

Burlington County officials have said Florence was never subjected to a cavity search while in the county jail. Instead, officers conducted a “visual observation,” which was policy at the time.

County officials have said the searches were necessary to promote the institutional security of inmates and staff.

They also contend that the searches keep contraband out of the facilities and help officers identify gang members as well as injuries or diseases in new inmates.

In the meantime, inmates continue to be processed at the county’s jails but no longer are subjected to the same strip searches Florence alleges in his federal suit. Instead, they undress and shower with a delousing agent behind a closed curtain, and only their clothes, not their bodies, are inspected, officials said.

Attorney J. Brooks DiDonato, who is representing Burlington County, said the ACLU brief did not surprise him.

“We are, of course, disappointed that these esteemed former public servants have chosen the wrong position on this issue, a position we believe is contrary to the Constitution, Supreme Court precedent, and the safety of the inmates and staff at correctional institutions,” DiDonato said.