Savana Redding and Sonia Sotomayor

Back on April 21st, Savana Redding and Zero Tolerance (ZT) both had their day in court. As I mentioned then… it didn’t sound good for Savana. Sometime in the next few weeks we should know how SCOTUS will deal with this, and determine if this is a 4th amendment violation or action in the best interest of the state.

As you may remember, Savana claims her rights were violated by Safford, AZ school staff with an embarrassing search. Savana was a 13 year old 8th grader at the time, and an honors student. She had no previous disciplinary history, and, in fact, had been an exemplary student. Base solely on a tip from a student who *did* have a disciplinary history, and with no corroboration, school officials believed that Savana had prescription strength ibuprofen stashed in her underclothes in violation of school rules. SCOTUS has been asked to determine if strip searching this young girl meets the 4th amendment bar of unreasonable search.

There are some legitimate, compelling, yet competing interests that must bear upon the court’s decision. The school has an interest in maintaining a safe environment for students, but more importantly in my mind is the interest of a minor child subjected to false accusations and unwarranted humiliation. In oral arguments, Justice Ginsburg seemed to be the only member of the court offering any hint of dissatisfaction with Savana’s treatment. None of the male justices seemed to understand the depth of humiliation and embarrassment, and the long lasting effects of the school’s actions on a prepubescent female child. The omens do not read well for Savana.

One must wonder if Savana might have found another ally if Justice Ginsberg were not the only female on the bench. Judge Sonia Sotomayor, if she were there, might feel that empathy for young Savana that President Obama has mentioned. A review of 2nd Circuit 4th amendment rulings in which Judge Sotomayor was involved indicates only two cases that were upheld by judicial panel.

In N.G. & S.G. v. Connecticut, the parents of two teenage sisters placed in state juvenile detention centers for truancy violations, sued the state because the girls were strip searched several times by detention center personnel. Records indicate that the girls were searched each time they returned from court appearances, even though they were never out of state custody, and were forced to “lift their breasts and spread out folds of fat.” The girls were not at the time convicted of any crime, and there was no specific indication that either possessed weapons or drugs.

Judge Sotomayor was one of a three-judge panel that ruled unanimously that all strip searches beyond the initial were indeed unconstitutional. The panel split, however, on the question of the initial search upon entering the facility, with Sotomayor dissenting. Judge Sotomayor argued that the state had an obligation to weigh its interest carefully against the humiliation and embarrassment felt by youngsters who had not been tried or convicted of any crime.

Sotomayor further argued that courts should be wary of strip searches of children, since youth “is a time and condition of life when a person may be most susceptible to influence and to psychological damage.” Judge Sotomayor, in a review of precedent, observed that the court had “never found that a strip search in the absence of any individualized suspicion was reasonable” outside of a prison setting. She cited evidence that strip searches conducted under the state’s blanket policy had almost never produced contraband that could not be revealed by alternate methods. Then she argued that the government had failed to meet the burden of proof that the invasive strip searches bore a “close and substantial” relationship to any state need sufficient to justify “a highly degrading, intrusive strip search.”

The other case is Kelsey v. County of Schoharie [PDF], in which two men, one accused of violating a child support order and the other for driving under the influence, had been required to strip nude in full view of jailers. The men claimed that this constituted a strip search, but the jailers claimed it was merely to get them into jail uniforms, and that the men could have undressed behind a half wall. The men countered by claiming that a guard ordered them to stand in front of and face him. District court sided with the prisoners, and the guards appealed.

The same 2nd Circuit Court panel, in a 2 to 1 ruling, decided that the events did not constitute a search, but were “clothing exchanges.” Sotomayor again dissented, stating that “the privacy interests protected by the Fourth Amendment do not become irrelevant merely because we use the nomenclature of ‘clothing exchange’ instead of ‘strip search.’” Even though dissenting, she noted that if the men had been allowed to change clothes without exposing themselves, she would have agreed with the majority “that Fourth Amendment interests would not be implicated and violated.”

Do these decisions reflect the empathy President Obama says he wants to see in his first Supreme Court nominee? Maybe, but maybe not. In an article published on Slate, author Emily Bazelon calls attention to a case in which Sotomayor apparently convinced her colleagues to overturn a jury verdict that had found police misconduct. We do not know what happened in deliberations, but it seems possible that former prosecutor Sonia Sotomayor might possibly move the Supreme Court in a conservative direction in some areas of criminal law and procedure. The two strip search dissents, however, seem to reveal that she will not be automatically pro-state or pro-plaintiff. In the illustrated cases, she appears to take a strict, originalist view of the Fourth Amendment, but pays homage to precedent as well.

Sotomayor appears to recognize and carefully weigh competing interests when determining whether the state has violated constitutionally protected privacies of those individuals entrusted to state custody. That’s what a good judge should do, and Savana would likely have an ally in Sotomayor.
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