Justice Breyer Cites Emory Students' Brief in Dissenting Strip Search Opinion

April 6, 2012

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Elaine Justice
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Tim Hussey
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In a 5-4 decision, the U.S. Supreme Court ruled that those arrested for even minor offenses may be subjected to strip searches before being admitted to jail. Justice Stephen Breyer cited an amicus curiae brief by the Emory Law School Supreme Court Advocacy Project (ELSSCAP) in his dissenting opinion filed Monday, April 2.

Emory Law students represented the Medical Society of New Jersey, the Center for Prisoner Health and Human Rights, and other medical professionals. Counsel of record was the late David Bederman, K. H. Gyr Professor in Private International Law at Emory.

The New Jersey case, Florence v. Board of Chosen Freeholders of County of Burlington, concerned whether prisons and jails should be allowed a blanket policy of strip searches to prevent contraband, weapons and diseases from entering the prison population.

One reason cited to justify the searches was to prevent the spread of MRSA, an antibiotic-resistant staph infection, as well as other skin diseases.

The students argued the justification was flawed because to prevent the spread of disease, screening should be performed by medical professionals, not corrections officers. In other words, the average jail intake employee isn't qualified to recognize the symptoms of staph infection and skin diseases.

"The brief was valuable for the Court because we used information that wasn't available in the main briefs or through traditional avenues for legal research," says Emory Law student Kedar Bhatia, co-founder of ELSSCAP. "The project wrote on behalf of medical professionals arguing that prisons would not block the introduction of infectious diseases with blanket strip searches as they were being performed."

"Being cited is a wonderful accomplishment for the team," Bhatia says, and praised the brief's team co-leaders, Emory Law students Audrey Patten and Michael Burshteyn, an ELSSCAP co-founder. "They worked hard to master sophisticated medical literature and the Court's reliance on their brief is important recognition of that effort."

It was the second amicus brief submitted by the Advocacy Project, which made "the accomplishment even more special," Bhatia said.

"I was blown away by the brief," attorney Thomas Goldstein said in October when the amicus brief was filed. Goldstein, of Goldstein & Russell in Washington, challenged the strip search and argued the case. "I was amazed that the students found the clients, organized the argument and wrote the brief."

Justice Anthony Kennedy wrote the majority opinion and was joined by Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Samuel A. Alito Jr. and Clarence Thomas. The dissenting justices who joined Breyer's opinion were Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.