The Freedom Bulletin

Appellate arguments took place before the Massachusetts Supreme Judicial Court in the case of Neil Entwistle, the British man who was convicted of murdering his wife, Rachel, and baby, Lillian, in 2008.

Entwistle’s appellate lawyer, Stephen Paul Maidman, argues that police violated the Fourth Amendment by searching Entwistle’s Hopkinton, MA home two times without warrants after Rachel’s family and friends became worried that she had not been in contact with them and had not answered the door for a planned dinner. Cops did not find the bodies of Rachel and Lillian, hidden under a blanket in their bed, until the second search. Maidman also claims that extensive, sensationalized, and biased publicity tainted the jury pool. Read Neil Entwistle’s appellate brief here, read the state’s brief here, and read my opinion here.

Entwistle himself was not present at today’s arguments, and neither was I, but here’s a recap of what went on according to news reports:

Continue reading…

What a bad ruling the Supreme Court made yesterday. In 2005, Albert Florence was arrested and spent 7 days in jail because police officers accused him of failing to pay a fine, despite the fact that he was carrying proof  in his glove compartment that he had paid it, and the fact that failure to pay a fine is not considered a crime in his state of New Jersey. In the words of the Supreme Court decision (PDF), this is what happened to him:

“At the first jail, petitioner…had to shower with a delousing agent and was checked for scars, marks, gang tattoos, and contraband as he disrobed. Petitioner claims that he also had to open his mouth, lift his tongue, hold out his arms, turn around, and lift his genitals. At the second jail, petitioner…had to remove his clothing while an officer looked for body markings, wounds, and contraband; had an officer look at his ears, nose, mouth, hair, scalp, fingers, hands, armpits, and other body openings; had a mandatory shower; and had his clothes examined. Petitioner claims that he was also required to life his genitals, turn around, and cough while squatting.”

Florence’s lawyers argued that it violates the Fourth Amendment to conduct strip searches without reasonable suspicion that the inmate is hiding something. But 5 of 9 Supreme Court justices ruled today that what happened to Florence is completely fine.

I completely disagree with them. A strip search is a severe violation of a person’s privacy, freedom, dignity, and sexual integrity. It should never be done to anyone who has not been proven guilty of a crime beyond a reasonable doubt, and even among convicted criminals, it should be done only to inmates who are known to pose a specific, truly dangerous threat…if even then. But the Supreme Court decision, as Justice Breyer pointed out in his dissent, would subject people to strip searches for merely being accused of ”such infractions as driving with a noisy muffler, driving with an inoperable headlight, failing to use a turn signal, or riding a bicycle without an audible bell.”

Breyer also wrote (correctly) that invasive seaches are “inherently harmful, humiliating, and degrading… And the harm to privacy interests would seem particularly acute where the person searched may well have no expectation of being subject to such a search, say, because she had simply received a traffic ticket for failing to buckle a seatbelt, because he had not previously paid a civil fine, or because she had been arrested for a minor trespass.”

Strip searches, body cavity searches, and mandatory showers are all things that it is inappropriate for one person to do to another (or the government to do to a person) in a free society. In my opinion, to force someone to expose the most private parts of their body constitutes a form of sexual assault. The job of the prison system is not to prevent disease, lice, drug use, and danger at any cost, but simply to punish people who have committed crimes, or make sure that detainees awaiting trial don’t escape, while preserving everyone’s dignity.

The ruling was 5-4, with Justices Kennedy, Roberts, Alito, Thomas, and Scalia in the majority and Justices Breyer, Ginsburg, Sotomayor, and Kagan (didn’t think I’d ever say this but…good for them!) dissenting.

This case highlights a frustrating fact about today’s political landscape: neither the so-called “liberal” justices nor the so-called “conservative” justices are truly pro-liberty. I found myself agreeing with the skeptical questions that Alito, Scalia, Kennedy, and Roberts asked during the ObamaCare arguments last week, but vehemently disagree with the stance they took in the Florence case. It is strange that Justice Breyer, for example, could treat it as obvious that the government can force everyone to receive vaccines, but then so eloquently take the pro-liberty point of view about strip searches. We need to have more people in law and politics who are pro-liberty about everything – opposed to mandatory purchase of health insurance, mandatory vaccination, and suspicionless searches.

Read the decision and all the briefs here.

Sources: AP, Reuters, Washington Post

The case of Neil Entwistle, the British man convicted in 2008 of the murders of his wife, Rachel, and 9-month-old daughter, Lillian, is heading to the Supreme Judicial Court. Entwistle and his appellate lawyer, Stephen Paul Maidman, are arguing that much of the evidence in the case should be thrown out and a new trial granted because police illegally searched his home twice, without a warrant, after family members and friends became concerned that they couldn’t get in touch with the Entwistles. Prosecutors argue that the police were justified in entering the home because of their function as community caretakers.

According to the Associated Press,

Police are allowed to enter a home without a warrant if they have an “objectively reasonable basis” to believe there may be someone inside who is injured or in immediate danger, said Suffolk University Law School professor Christopher Dearborn. Dearborn said he believes Entwistle has made a strong argument that police did not have enough evidence in this case to believe an emergency existed.

“The set of facts here may have given rise to concerns, but it also seems equally susceptible to innocuous explanations” as to what had happened to the Entwistles, Dearborn said.

“There is a very compelling argument that this was an illegal search,” he said.

Arguments are scheduled for April 6.

I’m a little late with this news, but it’s too awesome not to point out. The blog TSA Out of Our Pants released a video showing how basically anyone can bring basically anything through a nude body scanner without detection. The trick? Carry it on your side.

So basically, not only is the government violating the Fourth Amendment, taking away the privacy and dignity of travelers, and spending huge sums of money on these scanners, but they don’t even work!

Visit TSA Out of Our Pants for the original post, FAQ, how the TSA is trying to stop the media from covering the story, and more. He totally deserves support for his activism and lawsuit against the TSA, which he hopes will go all the way to the Supreme Court.

The Supreme Court made a great ruling yesterday, unanimously declaring that, absent a warrant or probable cause, it is unconstitutional for police to track people’s movements by attaching a GPS device to their car.

As Justice Sotomayor points out:

“GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familiar, political, professional, religious, and sexual associations … The Government can store such records and efficiently mine them for information years into the future … And because GPS monitoring is cheap in comparison to conventional surveillance techniques and, by design, proceeds surreptitiously, it evades the ordinary checks that constrain abusive law enforcement practices: ‘limited police resources and community hostility.’ “

Read the full text of the ruling, in the case of United States v. Antoine Jones, here.

This week the Supreme Court heard arguments in the case of Albert Florence. Horrifically, Mr. Florence was wrongly arrested due to a computer mistake for failing to pay a traffic fine, which he had actually paid, and was then thrown in jail and strip searched twice. The Court is deciding whether New Jersey’s practice of strip-searching all inmates who are held in jail before trial is constitutional.

Interestingly, the more “liberal” justices seemed more opposed to strip searches and the more “conservative” ones seemed to lean toward supporting them.

Justice Sotomayor said that much contraband enters jails ”not on intake, but…from corrupt correction officials” and reminded her fellow justices of a very important principle, asking, ”What are we doing with the presumption of innocence? That’s also a constitutional right.”

Justice Kagan contrasted this case with a 1979 decision approving body cavity searches after contact visits, saying, ”Here, you are talking about somebody who is arrested on the spot. There is no opportunity for planning, for conspiracy with respect to contraband.”

Justice Scalia claimed that strip searches were routine at the time the Bill of Rights was ratified. Although I don’t know for sure, that would be very surprising to me. He also implied that it would be okay to strip someone “to see if the person has any fleas or cooties or, you know, any other communicable disease before he is put into the general population.”

My view:

Although jail officials and people who support strip searches do not refer to them as a punishment and do not conduct them for that purpose, being subjected to such a degrading invasion of privacy is unarguably a punishment, and a severe one at that. It is always wrong to inflict punishments on people who have not been convicted of a crime, both from a common-sense point of view and according to the Fifth Amendment to the Constitution, which forbids that anyone ”be deprived of life, liberty, or property, without due process of law.” Heck, you could even argue the more radical position that strip searches, even of people who have been convicted of crimes, are unconstitutional because they are a “cruel and unusual” punishment under the Eighth Amendment.

Looking at the debate from a slightly different angle, using common sense about searches and seizures also makes it clear that strip searching people, when there is no reason to suspect they may be hiding weapons or contraband, is unconstitutional. If someone is arrested, then presumably there is reasonable suspicion that they committed some crime. But the strip search is not related to finding evidence of a crime, it is done for safety and security purposes. If the inmate has done nothing to raise suspicion of smuggling contraband, then there is no reasonable suspicion to conduct a strip search, and it therefore violates the Fourth Amendment. This is even more true when someone is arrested for a minor offense such as failing to pay a traffic ticket.

A lawyer from the Department of Justice told the Court, ”You cannot say that there are some minor offenders that don’t pose a contraband risk. You have individuals who are making (a) very quick determination. They have very little time, and if they guess wrong, those mistakes can be deadly.” But a strip search is a severe violation of a person’s dignity, privacy, and sexual integrity. The burden of justification must always be on those who want to inflict such a violation, and it is certainly not enough of a justification that there is some chance, however small, that the person might have contraband. If you don’t have enough time to figure out which inmates raise a reasonable suspicion, you shouldn’t be searching anyone.

In my opinion, this particular case is a no-brainer. Punishing people in this way, when they must be presumed innocent and have done nothing to raise suspicion, is unconstitutional, and I hope the Supreme Court recognizes this.

Florida Governor Rick Scott recently signed a law requiring people to pass a drug test in order to receive welfare, and several other states have been debating and voting on similar measures. The ACLU is suing Florida over the requirement, saying that it constitutes a suspicionless search and seizure, in violation of the Fourth Amendment. I agree with them.

While I share the desire to decrease spending on welfare, and the idea that someone with enough money to afford drugs shouldn’t be getting welfare, requiring people to give a urine sample is just plain wrong. I actually don’t think welfare should exist at all – forcibly taking from people with money and giving to those without is not the best solution to poverty – but having welfare plus mandatory drug testing is just adding one wrong on top of another.

Being made to give a urine sample is degrading. It also violates people’s privacy rights, since what substances are in your urine are none of the government’s business. Instead of merely blocking drug users from receiving welfare, the urine test requirement punishes all welfare applicants by taking away their dignity and privacy. It is indeed a search – quite an invasive one at that – that would be performed on all applicants, regardless of whether there was any reason to suspect them of wrongdoing.

One could argue that you don’t need to apply for welfare, so no one is required to submit to the search, but this is like justifying the use of naked machines and pat-downs by saying that no one needs to fly. Some people need to fly for their jobs, just as some people need welfare money in order to live. In any case, people should be free to choose travel plans and methods of transportation, as well as to apply for government assistance, without having to include in their calculus the need to avoid degrading searches.

If you want to cut welfare spending, just cut welfare spending…or even abolish it. Drug tests inflict degradation on all welfare recipients, which is in itself a grievous wrong, and solve nothing.