What follows is my comment on the Albert Florence decision by the U.S. Supreme Court. As I write these words, I cannot be certain of posting them on-line, even from a New York Public Library computer (after the destruction of the hard drive on my home computer, I believe, by hackers from New Jersey), but I will try to do so.
No bold or italic script is available at blogger -- at least not for me -- and I am not certain of whether I will be able to create space between my paragraphs. Again, I will do my best.
I am sure that the Albert Florence matter and the circumstances under which I am forced to post these comments on the Internet are revealing of the realities of life in America in 2012 and (probably) beyond this year.
Compare "Perception" on TNT with "Magician's Choice" and "666 Park Avenue" the t.v. series with "Drawing Room Comedy: A Philosophical Essay in the Form of a Film Script" and the new ABC series ("Final Witness") featuring murder victims investigating their murders with "Out of the Past." Finally, please compare "What is it like to be plagiarized?" with "'Brideshead Revisited': A Movie Review."
Are the similarities between my previously published and copyrighted texts and these commercial works coincidental? I doubt it.
More than anger or fear, my primary feelings are curiosity and anxiety about how these horrors could have become real or routine for writers in my society. I hope that readers from many countries as well as Americans appreciate the implications of this struggle by one so-called "insignificant person" -- an "inferior" individual (I am told) of the self-proclaimed political "bosses" in New Jersey -- for everyone's civil liberties.
To limit my freedom of expression is also to limit your right of access to speech. All sources used in writing this essay will be listed at the conclusion of the work. It may take a few days after posting the essay to add further sources.
I.
The Albert florence decision by the U.S. Supreme Court clarified a number of evils and hypocrisies afflicting our legal system surrounding the fault line of race -- although not in ways that the Court may have intended.
As I read the Court's decision, I was struck by the inability of ANY of the justices to discuss the obviously dominant issue in the case. I refer to the race of Mr. Florence and the discriminatory use of strip searches in jails as a means of humiliation that often has nothing to do with security and everything to do not only with racism, but with suppressing dissent and dissenters.
First Amendment issues were not argued by counsel for Mr. Florence, to my knowledge, although it is undisputed that Mr. Florence expressed his opinions concerning the arresting officer's actions and their motivations which, clearly, had something to do with what transpired on the day in question.
Mr. Florence is African-American as revealed by his photograph that appeared in the "Times," if not as a fact mentioned in the article describing the Court's opinions. Not only is racial identity a significant fact, I am sure that it is the crucial and most revealing detail in the story that gave rise to litigation reaching the United States Supreme Court, where (along with cautious journalists covering the story) all nine justices were, I suggest, "wary" of the racial undertones in the matter.
The majority of the justices acknowledged that Mr. Florence raised 14th Amendment (due process, EQUAL PROTECTION) as well as 4th Amendment (mostly privacy, also due process) arguments before the justices in addition to offering the same arguments before the lower courts. The decisions of the various justices focused almost exclusively on privacy concerns weighed against the requirements of security in American jails (13 million persons per year are in jails) and prisons (2 to 4 million people are incarcerated on a close to permanent basis in this country).
The United States is the world's leader when it comes to imprisonment of its people.
By framing the legal discussion in such neutral terms the outcome was predetermined. None of the justices even mentioned the basis for the equal protection arguments offered below nor alluded to the race of Mr. Florence, as compared with or in relation to the police officer's race in the context of a territory with a history of racial strife. ("The FBI Wants Assata Shakur" and "Mumia Abu-Jamal and the Unconstitutionality of the Death Penalty.")
Of course, the Court will defer to our federal and state institutions concerning "intrusiveness" with some hope for a "reasonable basis" for such searches when the only competing consideration is inmates' privacy. Inmates' privacy rights are not something that keeps federal judges up at night.
Minimal scrutiny is afforded to carceral administrative regulations and practices when there is SOME reasonable basis for administrative searches -- "reasonable basis" is something which most officers can fabricate, whether they exist or not, and so-called "within house proceedings" for inmates' complaints are seen by defendants-inmates as a joke. I agree. Access to federal courts for most inmates has been severely curtailed by a spate of recent federal decisions seeking to "discourage" or forestal inmate litigation.
The crux of the matter before the justices was not privacy versus security in jails and prisons, whether for those arrested on minor or major charges. The real issue -- which clearly could not be faced squarely by a divided Supreme Court -- is race and the legacy of slavery as a determining factor in how persons are treated by the state in all institutions, especially prisons and jails. ("Freedom for Mumia Abu-Jamal" and "Foucault, Rose, Davis and the Meanings of Prison.")
Analogies between the mehods used to demonize and humiliate slaves in American history -- or new inmates at Auschwitz -- were too obvious to be missed by these nine jurists whose intellects, we are told and believe, are formidable and who have attended Yale, Harvard, and Stanford Universities. To state the matter in terms that Justice Thomas may appreciate: Mr. Florence was subjected to a "low-tech lynching."
Two other items not mentioned in the Court's recitation of the facts have to do with the geographical and socio-economic "location" of Mr. Florence by comparison with the trooper who arrested and the jail guards who tortured him. These issues are significant to what happened and to the failure by the Supreme Court to resolve (or even address) tensions that will recur in jurisprudence and, worse, that may well lead to vilolence not only in prisons and jails, but also in society -- espcially in the streets of our cities.
You can see why New Jersey has attempted to prevent me from posting this essay. ("How censorship works in America.")
I remember a law professor and friend who made the radical suggestion that, sometimes, cases are actually decided based on their facts. A decisive fact in this case is the cultural and racial divide between the falsely arrested citizen and the white police officer who detained him, probably knowing that he was arresting a man falsely. ("Psychological Torture in the American Legal System" and "America's Holocaust" then "So Black and So Blue in Prison.")
The significance of the procedural posture of the case has not been sufficiently appreciated by comentators on the opinion. The matter reached the Court as an appeal from a summary judgment determination in favor of Mr. Florence at the District Court level.
I begin by returning to the facts in a more detailed manner because, as some of the justices seem to have forgotten, there are no factual issues after a summary judgment determination. All facts are granted and judgment is given to a party on the pleadings pursuant to a motion. Hence, the facts were, basically, as asserted by Mr. Florence and ACCEPTED by the state of New Jersey.
Furthermore, there was no second guessing of the summary judgment determination at any level in the subsequent proceedings in this matter, including the arguments before the Supreme Court. Again: equal protection, due process, and free speech issues that I am sure were in the pleadings were ignored or not seen by the justices -- who expressly acknowledged briefing by counsel of "4th and 14th Amendment principles."
After revisiting the admitted facts I turn to the applicable law including the Constitutional principles at issue. I next analyze the facts in light of the law offering a suggested resolution by way of response and as a statement of my opinion.
Regrettably, harassment makes posting this essay difficult, but I will try to complete the work while I am still able to access blogger's dashboard. Writing under these conditions is designed not simply to alter or undermine my argument, but to injure me. I believe that this effort to injure me comes from New Jersey and is intended to prevent or obstruct future writings by me. Perhaps I am experiencing something very similar to what Mr. Florence experienced and for the same reasons. This is after I have been raped and tortured by New Jersey persons. ("What is it like to be tortured?" and "New Jersey's 'Ethical' Legal System.")
II.
Albert Florence was a PASSENGER in a vehicle driven by his wife which was validly registered as well as insured in the state of New Jersey. The sticker for inspection was placed in the legally required position and was valid on the day when the stop took place. In all external appearances the vehicle was fully in compliance with the law.
None of the recitations of facts in this matter -- including the basis for its decision provided by the U.S. Supreme Court -- contains the rational foundation or any in-depth discussion of the alleged "probable cause" for the vehicular stop and questioning of all of the persons in the Florence family car or SUV.
No officer could merely by observing a vehicle decide that an occupant or passenger of the vehicle had an outstanding warrant for any cause. No summons for speeding was actually issued on the day in question nor is it alleged today that the Florence family was speeding. ("Racism and Brutality on New Jersey Highways" then "Driving While Black [DWB] in New Jersey" and "Give Us Free!")
Mr. and Mrs. Florence were accompanied by their child (or children, since accounts differ over the number of children). The child, or children, and all other motorists were witnesses to the treatment of Mr. Florence, as if he were a felon, and questioning of both parents at the side of the road.
I am sure that Mr. Florence, appropriately, expressed an understandable sense of outrage at such treatment, produced the necessary receipt which indicated ENTRY of payment for the disputed fine in the computer system, and (very likely) his perceived sense of being insulted or mistreated for his race.
The potential psychological harm to any child from witnessing this event, abuse of a parent by a legal official or cop, may be life-long and severe. ("An Unpleasant Encounter With New Jersey's State Police" then "America's Holocaust.")
"A records search revealed an outstanding warrant [allegedly, only against Mr. Florence, although the entire family was kept at the scene for hours,] based on an unpaid fine." ("The New York Times," p. A3.)
The fine was not only paid, but was (again) shown to have been paid at the scene by Mr. Florence -- who also indicated, unknowingly, that the fine's payment must have been entered in the system at the time of payment since it is the only way he would have been given the receipt in his possession and produced for the officer.
It may be that someone -- after receipt of payment and Mr. Florence's arrest -- deleted the entry of payment (who would do such a thing?), but there is little doubt that the payment was made and entered in the necessary computers at the time when the money was accepted by state officials.
Any representation to the contrary by counsel for New Jersey or the police officer and/or trooper involved in the incident is at best erroneous or (worse) lies. I believe that the officer at the scene was aware that Mr. Florence had paid the fine and that there was no open charge against this man on the date of the incident that provides the ostensible basis for this litigation. ("New Jersey's KKK Police Scandal" and "Organized Crime Group in New Jersey's State Police.")
I am also sure that state police or Office of Attorney Ethics (OAE) officials are behind the censorship, alterations of my writings, and current criminal denials against me of access to some of my writings and sites as well as the truth concerning the tortures to which I was subjected in New Jersey. ("What is it like to be tortured?" and "Terry Tuchin, Diana Lisa Riccioli, and New Jersey's Agency of Torture" then "Jennifer Velez is a Dyke Magnet!")
Perhaps this criminal censorship has been accomplished with the assistance of members of the Cuban American community at the request of Senator Menendez and/or others. (Again: "Terry Tuchin, Diana Lisa Riccioli, and New Jersey's Agency of Torture" and "An Open Letter to My Torturers in New Jersey, Terry Tuchin and Diana Lisa Riccioli.")
Mr. Florence was subjected to two strip searches, held in jail for about one week, humiliated, insulted, offended, both in the presence of his family on the Turnpike and while in jail. He might easily have been beaten for "resisting" arrest or to teach him a "lesson about obedience to authority."
Mr. Florence was guilty of being better-educated and dressing well, being better-looking and more intelligent than the blue-collar trooper who detained him. Mr. Florence was guilty of being a proud, concerned African-American father, husband, and man. I am guilty of speaking the truth about this matter to New Jersey's legal establishment and the world. ("What is it like to be censored in America?" and "How censorship works in America.")
Significantly, Mr. Macri -- a N.J. lawyer and prosecutor involved in alleged money laundering and associated by the authorities with a $50,000 per year marijuana ring, despite allegations of organized crime involvement by Mr. Macri -- was not subjected to "delousing," or strip-searched, and was bailed-out within 24 hours of his arrest. There appears to be no rational basis for the difference in treatment as regards Mr. Macri by comparison with Mr. Florence, but for the fact that one of these persons is an African-American man. ("Justice for Mumia Abu-Jamal.")
Justice Clarence Thomas in his concurring opinion mentions an "allegation" that Mr. Florence at some point in his life "fled from the police." However, there was no such open charge that was part of the record, either on the date in question or thereafter. Justice Thomas' statement, if accurate, is irrelevant to the matter before the Court and is made meaningless by the summary judgment previously granted and unchallenged in the case.
Justice Thomas must have been aware of this irrelevance and may have sought to "darken" the reputation of Mr. Florence in order to legitimate a result that he knew many Americans would, otherwise, find offensive and unwarranted. Maybe if Mr. Florence was not such a nice person the violations of his rights would appear less heinous. Sadly, whether Mr. Florence is a "nice guy" is also irrelevant to the matter before the Court.
The Supreme Court of the United States of America does not, normally, and did not in this case engage in fact-finding. The justices should not assume facts that are not in the record when rendering a decision. ("What is Law?" and "Manifesto For the Unfinished American Revolution.")
Warrants are sometimes issued automatically in N.J. Municipal Courts when summonses are not heard on their first scheduled dates, even if dates are postponed, legally, as they usually are at least once. It is undisputed that all legal matters pertaining to Mr. Florence were resolved prior to and on the date at issue.
Warrants are automatically recalled when fines are paid and matters are concluded. This fact provides yet another reason to infer that the officer(s) and jail guards were aware that Mr. Florence had paid the fine in question. The arrest, strip searches, and incarceration for one week at two facilities were a deliberate humiliation of an "uppity" individual, a "man's man" (Mr. Florence's term), by an envious and (I believe) RACIST cop who can only be described as a sadist.
New Jersey's state police has been subjected to monitoring by federal authorities on several occasions because of racial profiling, cruelty, bigotry, and incompetence -- especially as regards minorities, notably all African-Americans. ("Driving While Black [DWB] in New Jersey.")
Mr. Florence's fate might have been the experience of Barack Obama, Michelle Obama, and their lovely daughters, Sasha and Malia, if they were travelling on the New Jersey Turnpike prior to Mr. Obama's entry into political life.
This is the same state police force and roads involved in the Assata Shakur incident and close to Mumia Abu-Jamal's Philadelphia. Many other similar incidents of harassment on state highways have been alleged against the N.J. state police.
III.
None of the justices, I am sure, have entered a Municipal or Superior Court in New Jersey, as litigants, nor are they familiar with the computer systems used by such courts and New Jersey's state troopers.
I have some familiarity with such matters. In my opinion, the attorneys for New Jersey, who must have known better, LIED to the Court -- or "mischaracterized" the facts -- as Senator Menendez would say. ("Senator Bob, the Babe, and the Big Bucks" and "Does Senator Menendez have mafia friends?")
The claim that the arrest of Mr. Florence was a "mistake," was false -- probably a deliberate falsehood -- but the detention of Mr. Florence for a week suggests a level of malice in these actions that is explicable only in terms of voluntariness and racism. Any error by the officer or in the system would have been detected much sooner by administrators at either of the facilities at which Mr. Florence was held.
Accordingly, the strip search and "delousing" of Mr. Florence can only be understood -- along with the arrest -- as the result of envy, racism, frustration and (probably) suppressed sexual desire on the part of the racist officer.
Have I mentioned racism a sufficient number of times? How many persons treated in such a way in New Jersey are or have been minority persons, especially African-Americans? A majority? How often are similar "mistakes" made when arrested persons are whites from the affluent suburbs? Is there a pattern of discrimination in the Garden State giving equal protection issues raised by Mr. Florence a particular urgency?
I suggest that racial discrimination is not an issue the Supreme Court could or should avoid in this case. ("Manifesto for the Unfinished American Revolution" and "Decline in Respect for the United States Supreme Court" at Google Groups.)
I suggest also that the GOAL of the process to which this man and his family were subjected was to make Mr. Florence what the trooper needed him to be in order to confirm some ugly prejudices and make his own situation and limitations in life acceptable: a "N_____."
Race-based mistreatement leading to equal protection issues were at the center of this litigation. The justices failed to discharge their responsibilities in not addressing or resolving those issues that simply will not go away in America without judicial attention.
Justice Kennedy's opinion for the Court concluded, relying on "Bell v. Wolfish" -- "undoubted security implications involved in jail supervision override the assertion that some detainees must be exempt from the more invasive search procedures at issue absent reasonable suspicion of a concealed weapon or other contraband." ("The Wanderer and His Shadow.")
The dissent's greater concern for privacy, which is a fundamental right, and sound reasoning that "there is little empirical support for the idea that strip-searches detect contraband" that would not have been found otherwise is, mostly, also irrelevant to the crux of the issue presented in the case.
Mere "reasonableness" under the 4th Amendment -- the standard applied by the Court -- required deference, perhaps, to administrators' showing of some "reasonable basis" for the searches and other invasive procedures which were thus, tacitly, deemed "racially neutral" procedures.
These are not racially neutral procedures as they are applied in New Jersey jails. Who is sent to jail and for how long persons stay in jail before receiving bail is more often correlated with race, I am sure, than with the offense charged. ("So Black and So Blue in Prison" then "America's Holocaust.")
NONE of the justices mentioned the race of Mr. Florence, again, since the parties were described as abstractions, "appellant and appellee," as though they stood on equal footing, or in voluntary ignorance of four hundred years of history that alone makes what happened on the Tunrpike on the day of Mr. Florence's arrest comprehensible. ("Roberto Under's Revolutionary Legal Theory" and "Duncan Kennedy, Peter Gable, and the Critical Legal Studies Movement" then "The FBI Wants Assata Shakur." and "Justice For Mumia Abu-Jamal.")
Under the equal protection standard "strip-searches" applied, disproportionately, to African-American inmates or detainees -- including those ADMITTED to be falsely arrested -- will be deemed unconstitutional because they are racially discriminatory unless the strip search is "essential" to a "fundamental or important government purpose." (Tribe, pp. 1502-1505.)
Dishonesty and hypocrisy throughout the legal system about the crucial importance of race in all deliberations and police actions involving citizens of different races is unacceptable and dangerous. ("Abuse and Exploitation of Women in New Jersey" and "Not One More Victim." Gender as analogous to race so as to become a "suspect category"?)
Perhaps in the rarefied atmosphere of the United States Supreme Court the justices do not see what so many of us who have not attended Harvard, Yale, or Stanford see all too clearly -- Mr. Florence was tortured, detained, humiliated (like so many others) BECAUSE of his race and his refusal to behave like what he is not under the Constitution, a slave.
The pretense of color-blindness in this case and in much of our legal system is simply a lie. It is especially sad that Justice Thomas did not see this issue in the case.
Only in America am I denied access to my blogs on the very day that Mr. Obama calls on the nations of the world to refrain from allowing their security agencies, police, or government entities from censoring or suppressing the speech of dissidents on-line. ("Psychological Torture in the American Legal System" and "How censorship works in America.")
Mr. Florence was enslaved by a police officer whose actions must be disallowed under the equal protection and due process principles of America's Constitution. Mr. Florence is entitled to apologies from New Jersey officials and compensation for his ordeal.
Sources:
In the event that I am prohibitted from returning to this blog after this essay is posted, I have created two other locations where I TRY to post texts on-line: http://www.Google.com/groups and http://www.Typepad/JuanGM
I have been prevented from accessing both of those alternative locations. Nevertheless, I will continue to struggle to reach one of these sites, every day, in order to continue writing. I cannot send or receive emails. I cannot use or post images online. I have no cell phone.
"Albert Florence v. Board of Chosen Freeholders of the County of Burlington, et als.," 2012 U.S. Lexis 2712, __ U.S. __ (2012) (slip opinion).
"Florence v. Bd. of Chosen Freeholders of Burlington," 621 F.2d 296, 2012 U.S. Lexis 19548 (3rd Cir. N.J. 2012).
Mumia Abu-Jamal, "Live From Death Row" (New York: Harper Collins, 1980).
Lizette Alvarez & Michael Cooper, "Prosecutors File Charges of 2nd Degree Murder in Shooting of Trayvon Martin," in "The New York Times," April 12, 2012, at p. 1.
Angela Davis, "Are Prisons Obsolete?" (New York: Seven Stories, 2003).
Michel Foucault, "Power/Knowledge: Selected Interviews & Other Writings 1972-1977" (New York: Pantheon, 1980) (Colin Gardner, Ed.).
Primo Levi, "Survival in Auschwitz" (New York: Collier, 1959).
Adam Liptak, "Justices Approve Strip Search Use for Any Arrest: Court is Divided 5-4," in "The New York Times," April 3, 2012, at p. A1.
Colin Moynahan, "Rape Suspect is Freed Long After a Woman Recants," in "The New York Times," April 19, 2012, at p. A23. (Prosecutors deliberately suppressed evidence of innocence and exculpation that resulted in prolongation of an African-American man's incarceration. "Larry Peterson Cleared by DNA.")
Brent Staples, "Young, Black, Male, and Shattered by Bias," (Op-Ed) in "The New York Times," April 15, 2012, at p. 11.
Laurence Tribe, "American Constitutional Law" (New York: Foundation Press, 1988).
