Saturday, April 25, 2009

Redding v. Safford-- why isn't Chris Hansen reporting on this?

The so called "strict constitutionalists" on the Supreme Court are obviously pretty selective in what is relevant in constitutional matters...

It is clear to me that Brown v. Board holds that the 14th Amendment applies to schoolchildren (they being the subject of that case).

The Fourteenth Amendment states: "Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

This by precedent incorporates the Fourth Amendment against the states (Mapp v. Ohio).

The Fourth Amendment does provide for the search of the OUTER layers of clothing in some circumstances (terry v. Ohio) citing: "the officer never put his hands beneath the outer garments"“The sole justification of the search ... is the protection of the police officer and others nearby, and it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.”

Justice Douglass dissented:“To give the police greater power than a magistrate is to take a long step down the totalitarian path. Perhaps such a step is desirable to cope with modern forms of lawlessness. But if it is taken, it should be the deliberate choice of the people through a constitutional amendment.”

Bear in mind that such a case was involving Police officers, and that Ibuprophen is by no means the equivelent of a gun of a knife!It need hardly be stated that those areas of the body regarded as "the private parts" are among those in which the civilian not under order of a court of law (warrant) certaintly has an expectation of privacy.

As to the damages sought, it would seem to be a Catch 22 for the defence of Safford; either they may claim that the fourth amendment does not apply because they are not police (although they are public servants--so it ought to be assumed that they are under the same constraint regarding Warrants) but then they are clearly liable to be sued for their private conduct.

At the state level, there is of course the matter of Age of Consent. As her mother was never notified until after the fact... and of course there isn't a state in the Union in which a 13 year old may give consent to the solicitation of an adult to expose her private parts. I don't know about AZ, but here in civilized states that constitutes Statutory Rape!


"Having turned up no evidence to suggest anymisconduct by Savana, Wilson nonethelessimmediately ordered Romero to take Savana to thenurse’s office. Id. Savana did not know why she wasbeing marched into the nurse’s office. As the doorslammed and locked behind Savana, id. at 16a, theschool nurse, Peggy Schwallier, was in the bathroomwashing her hands, id. at 23a. At that point, Romeroexplained that they intended to search Savana forpills. Id. at 16a. The two school officials thendirected Savana to undress. Id. at 23a. With bothofficials staring at Savana, she took off her pants andher shirt. Id. The officials did not notice any pillshidden in Savana’s clothing, on her body, or underher panties or bra. Id. at 14a. Still, they toldSavana to pull out her panties and bra and to movethem to the side. Id. at 23a-24a. This order forced Savana to expose her genital area and breasts to theschool officials."

The girl who ratted her out got a lesser sentence:

"Wilson then told Romero to escort Marissa tothe nurse’s office to search her clothing. J.A. 13a.
Romero, aided by Schwallier, asked Marissa toremove her socks and shoes, raise up her shirt andpull out the band of her bra, take off her pants, andstretch the elastic on her underwear.
(Unlike their execution of the strip search of Savana,the school officials did not ask Marissa to take off her shirt.)"

One might be led to conclude that because providing information earned a less sever intrusion, that the search was not for the sake of discovery but rather was inteded as a punishment--thereby violating the eighth amendment as well.

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