While the charges against the 93 drug-free young people arrested at a Flint nightclub have not yet been thrown out, the American Civil Liberties Union of Michigan, which represents the nightclub patrons, was encouraged by the most recent ruling in the case.

Genesee Circuit Court Judge Joseph J. Farah issued an order on Monday granting the nightclub patrons permission to appeal. He also sent the case back to the district court to hold a hearing on two issues (1): whether there was enough evidence to charge each person with “frequenting a drug house,” and (2) whether the police officers who made the arrests engaged in outrageous misconduct by strip searching the patrons.

“We are encouraged by the ruling and look forward to proving that it is not a crime in this country to go to a bar to listen to music, dance and socialize on a Saturday night,” said Kenneth Mogill, the ACLU volunteer lawyer who argued the appeal.  “If a person is can be arrested and strip searched for simply being someplace where strangers might possess drugs, then any person who goes to a concert or sporting event risks arrest and humiliation.”

On March 20, 2005, undercover officers from Flint Area Narcotics Group (FANG), entered Club What’s Next, a Flint dance club, to investigate possible drug activity.  While the undercover officers reportedly bought drugs from certain individuals in the bar, nobody represented by the ACLU possessed drugs or drug paraphernalia.  Nonetheless, a team of police officers from FANG, the Flint Police Department and the Genesee County Sheriff’s Department raided the club and charged all patrons who did not possess drugs with a misdemeanor for “frequenting a drug house.”

During the raid, the dance club patrons were handcuffed and divided into two groups males and females. Most men were taken into a men’s bathroom and searched, sometimes two at a time, and told to raise their shirts, drop their pants and underwear, and to bend over and cough. Some were told to put a finger into their anus. Those who were still handcuffed had their pants and underwear pulled down to around their knees by officers. One man was reportedly stripped on the side of the road after he had left the club.

Women were taken into a women’s bathroom and searched, at times in the presence of others. Some were told to lift their shirts and bras in front of eight male officers. An officer commented to one woman about the size of her breasts and asked if they were “real.” Several women have reported that they were subjected to cavity searches. One woman reported that the officer did not change the latex glove in between searching her vagina and anus.

“When did it become a crime for enjoying music at a legal venue?” said Gregory Gibbs, ACLU-Flint Branch president and one of the attorneys in the case.  “Such a policy would have a tremendous chilling effect on free expression.” 

A team of ACLU lawyers asked the Flint District Court to dismiss the charges on the ground that the arrests were unconstitutional and infringed on their First Amendment right to association and expression, but the district court denied the motion. At oral argument on appeal, Judge Farah expressed skepticism at oral argument about the City of Flint’s argument that even people not engaged in drug activity could be arrested for being present at a licensed club where strangers possessed drugs. He pointed out that under such logic drug counselors visiting the bar to discourage drug use would be committing a crime. 

In addition to Mogill and Gibbs, other ACLU volunteer lawyers on the case include: Elizabeth Jacobs, Jeanmarie Miller, Glenn Simmington, Dean Yeotis, Chris Pianto, Matthew Abel and Michael Segesta.

Judge Farah’s Order:  www.aclumich.org/pdf/opinionremandingforevidentiaryhearing.pdf
Transcript of the appellate oral argument: www.aclumich.org/pdf/transcriptof2-21-06appellateargument.pdf
ACLU’s Brief on Appeal: www.aclumich.org/pdf/briefs/flintraidappealbrief.pdf