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Right Wing Ads Try to Justify Alito Strip-Search Opinion

How typical of conservatives. When you don't have a legal or rational leg to stand on, attack those pointing out the error of your ways. The New York Times reports that as part of "law enforcement week," conservatives have launched an internet ad campaign supporting Judge Sam Alito's dissent in the 2004 case of Doe v. Groody (pdf), in which Alito argued it was okay for police to strip search a ten year old when the warrant only named her father. I kept reading the article, thinking I would learn the legal theory the ad relied as support for Alito's belief that the police action was justified. Instead, I found this:

The conservative advertisement attacks the "left-wing extremists" who oppose Judge Alito, saying they "may have found new allies, drug dealers who hide their drugs on children."

Judge Alito's actual dissent in the case reads like a prosecutor's brief rather than a judicial opinion: The search was good, and even if it wasn't, a reasonable officer might have believed it was good -- and it's a fact that drug dealers use their kids to carry out their business and avoid prosecution.

The majority opinion, by the way, with which Alito disagreed, was written by that uber-liberal (sarcasm) former Judge and now Homeland Security Chief Michael Chertoff.

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    If I've understood this case correctly, Alito issued this opinion in regard to a civil suit brought by the wife and daughter of the man named in the warrant against the officers who executed the search. Alito's court was asked to decide whether the police officers should be immune from personal civil liability. The arguments center on a difference in the wording of the warrant and the supporting affidavit. Do I have that right so far? Wasn't Alito's decision just saying that individual police officers shouldn't be held personally--and financially--liable for not being able to sort out the paperwork errors somebody else made? I know that's not as exciting as saying "Alito approves of strip-searching ten-year-olds." But then, appeals court decisions are often about rather mundane technicalities instead of broad issues, aren't they? BTW: Very few of the descriptions of this case that I've seen bother to explain that the "strip search" involved a female traffic officer asking the mother and daughter to lift their shirts. When you just say "police" and "strip search," it sounds like a bunch of leering men yanking the pants off of a little girl. Maybe Alito got it wrong. On the other hand, his opinion wasn't all that radical either.

    Re: Right Wing Ads Try to Justify Alito Strip-Sear (none / 0) (#2)
    by Sailor on Sat Dec 17, 2005 at 01:07:00 PM EST
    A female officer took the girl and her mother to an upstairs room, where ''they were instructed to empty their pockets and lift their shirts . . . [and] to drop their pants and turn around. No contraband was found," court papers said.
    Quaker, what do you think happened after they dropped their pants and turned around? And the warrant did not say the occupants could be searched, the application for the warrant requested that.
    application for the search warrant had sought permission to search all occupants

    ''Even if the warrant did not contain such authorization," Alito wrote, ''a reasonable police officer could certainly have read the warrant as doing so."
    So it seems the judge read the application and specifically excluded that part. It would have been a terrible precedent if anything in an application for a warrant was treatedthe same as what was actually in the warrant. This is why warrants go thru judges. And the logic that
    it is a sad fact that drug dealers sometimes use children to carry out their business and to avoid prosecution."
    Sure, and sometimes they hide their stash in a neighbors house. Does that mean cops should be allowed to search all the neighboring houses?

    When you don't have a legal or rational leg to stand on, attack those pointing out the error of your ways. I hardly think that this is unique to "conservatives". It is a tactic used quite frequently by many of the self-professed "liberals" and "progressives" on this site as well, and is a symptom of the general decline of political discourse in this country.

    Conservatives are doing what they always do, release the attack dogs to make the waters of truth murky with their propaganda.

    Sailor, I agree with most of what you have to say. My point is only that the conventional telling of this decision doesn't accurately describe what question was being decided. This case wasn't about whether or not the search was permissible. It was about whether the police officers should have "qualified immunity" because they were trying to do their jobs. Imagine a similar case in which the officers strip search the wife and find evidence. I would agree that the evidence should be excluded, if the search warrant was worded the same as it is here. But that's not the question! The question is whether the wife ought to be able to sue the police officers. Whichever way you think that question should have been decided, it's a lot less spectacular than the breathless accounts of "strip searching ten-year-olds" we see so often.

    Re: Right Wing Ads Try to Justify Alito Strip-Sear (none / 0) (#6)
    by Sailor on Sat Dec 17, 2005 at 01:07:00 PM EST
    I'm not sure I get the difference, the case hinged on whether the strip search was permissable.

    Re: Right Wing Ads Try to Justify Alito Strip-Sear (none / 0) (#7)
    by Peter G on Sat Dec 17, 2005 at 01:07:00 PM EST
    QiB: I think you've got this exactly right. Very well and carefully said. Sailor: The officers would be immune from being held personally liable in a civil rights suit in either of two situations: (1) the search was legal and so they did nothing wrong; or (2) the search was unconstitutional, but they reasonably thought otherwise. Obviously, to hold them personally liable, the court must agree both that the search was unlawful and that the officer should have known it was unlawful. Usually, a cautious court ruling in favor of the officer (cf. Alito's dissent in this case) will decide the second, easier point -- that the unconstitutionality of the conduct was not so clear under established precedents that the officer must be held responsible for knowing he was acting illegally -- and merely assume the first -- whether the conduct was in fact unconstitutional. Here, Judge Alito arguably went too far in the "activist" direction by opining on both questions, when a decision of the first point was unnecessary. On the other hand, Judge Chertoff's majority opinion had (necessarily) addressed both points and (again, necessarily) decided them against the officer. So, the choice of the dissenter (Alito) to address both is more understandable. (All this is for clarification, without expressing my opinion on the merits of the Fourth Amendment issue.)

    Re: Right Wing Ads Try to Justify Alito Strip-Sear (none / 0) (#8)
    by cpinva on Sat Dec 17, 2005 at 01:07:00 PM EST
    quaker, the point is, the two events are not separable issues, one follows the other. had the officers abided by the provisions of the search warrant, they wouldn't have committed the act at the heart of the suit. it wasn't a clerical error, not subject to their control. the failure to follow the terms of the warrant was an overt illegal act on their part, not a "good faith" error. as a result, they committed a criminal act, under "color of law", negating any immunity they might normally be expected to have for official actions. an application and the warrant itself are two separate, distinct items. if they weren't, why bother even having the application to begin with? that judge alito chose to ignore this basic fact in his dissent, and combine the two into one, places him, in my opinion, on the dreaded "judicial activist" list.

    Re: Right Wing Ads Try to Justify Alito Strip-Sear (none / 0) (#9)
    by kdog on Sat Dec 17, 2005 at 01:07:01 PM EST
    may have found new allies, drug dealers who hide their drugs on children
    Does that mean the reverse is true? That conservative extremists have found new allies, police who stick their hands down the pants of small children?

    cpinva, the majority opinion acknowledges that there are circumstances under which an accompanying affidavit or application can expand the scope of a warrant. (The majority further finds that those circumstances aren't valid here.) My point is only this: when opponents of Alito's appointment point to this case, they portray this case in rather stark terms. In fact, this case is about a rather technical question of procedure, not a broad approval or disapproval of strip-searching juveniles.

    Re: Right Wing Ads Try to Justify Alito Strip-Sear (none / 0) (#11)
    by Johnny on Sat Dec 17, 2005 at 01:07:01 PM EST
    So... Does this mean a cop can say "I guess I didn't read the instructions well enough?" As proved by repeated instances of cops going to the wrong hosue and killing people, subtle language on warrants may not be the best policy. We may be asking too much of these men and women to interpret the language...

    How about this: "Pedophile police officers may have found a new ally in Judge Alito, who insists they have a Constitutional right to molest children."

    Well, scar, if you really want to peddle that, make it "government agents" instead of "police officers." It'll sell better to the right.

    "Wasn't Alito's decision just saying that individual police officers shouldn't be held personally--and financially--liable for not being able to sort out the paperwork errors somebody else made?" So, if you ask a judge for an order allowing you to do x, and the judge issues you an order limiting you to y, you can do x anyway, in all good faith?

    Re: Right Wing Ads Try to Justify Alito Strip-Sear (none / 0) (#15)
    by Sailor on Sat Dec 17, 2005 at 01:07:02 PM EST
    Quaker, do you really think a 10 year old being violated by a person of their own sex rather than a person of the opposite sex matters? The only recourse WAS a civil trial. After the decision it was settled out of court for an undislosed sum amd a gag rule. Even chertoff didn't agree with alito's decision.

    Quaker, do you really think a 10 year old being violated by a person of their own sex rather than a person of the opposite sex matters?
    The fact that she was 10 actually doesn't figure in this case at all. The facts of the case would have been the same if she was 2 or 20 or 100. I mention it only because so many people like to "help" the story by leaving that part out. This wasn't about a bunch of sweaty, leering male cops abusing a little girl. The method of the search isn't questioned. Only the authorization for the search was in dispute.

    So, if you ask a judge for an order allowing you to do x, and the judge issues you an order limiting you to y, you can do x anyway, in all good faith?
    That's not what I said, and I don't think it's what Alito's opinion said either. The question in this case doesn't ask whether the search should be allowed. It asks whether the police officers should be immune from civil liability because they thought they were doing their jobs. Different question.

    On slogging through both the majority and dissenting opinions, I learn a bit more: 1) the affidavit and the warrant were prepared by the same police officer. 2) the magistrate who signed the warrant made no changes to it. 3) the warrant specifically incorporates the affidavit in providing information to establish probably cause to search the mother and daughter. 4) the warrant does NOT incorporate the affidavit in naming the persons and places to be searched--because the officer who prepared both documents ran out of room. 5) the majority does NOT rule that the search was unconstitutional because a strip search was performed or because one of the people searched was a juvenile. In fact, the majority opinion says explicitly that if the warrant had named the mother and daughter or incorporated the affidavit, there would be no constitutional question here.