Wednesday, November 02, 2005

Alito and Strip Searching

Some attention has been made of Alito's dissent inDoe v. Groody . Prompting accusations that Alito has no problems with warrantless strip-searches of 11 year old girls.

The case provides a good example of how difficult it can be to sue a State, or State officials, for violating your Constitutional rights.

To start off, the Supreme Court has held (and the less than "textualist" conservatives have upheld) that the Eleventh Amendment means individuals cannot sue a State (unless the State consents, or Congress has explicity "abrogated" a State's immunity under its limited power to enforce the 14th Amendment). You can only sue the state for prospective injunctive relief: you can get a court to order the State, "Don't do it again." Thanks.

However, under Federal law, usually Section 1983, individuals can sue State officers who violate the Constitution and harm you. While you cannot sue the State, you can sue State employees, under the dubious theory that since States cannot legally enforce a State law that is unconstitutional, an individual State employee who violates the Constitution is not acting pursuant to State law. Dumb rule, but at least you can get into court if cops strip search you for no good reason.

But, State employees are often immune from suit. The immunity can either be "absolute" or "qualified." The President and Judges have absolute immunity for their official acts.

Police have qualified immunity from their unconstitutional acts. "The relevant, dispositive inquiry is whether it would be clear to a reasonable officer that the conduct was unlawful in the situation he confronted. . . . If the law [Supreme Court decisions] did not put the officer on notice that his conduct would be clearly unlawful, summary judgment based on qualified immunity is appropriate." Saucier v. Katz. Thus, police, or other State officers, may violate your rights under the Constitution so long as they reasonably believe their behavior was Constitutional (under Supreme Court -- not district court -- precedent) at the time.

Turning to the strip-search case. The Fourth Amendment protects against unreasonable searches and seizers. Police officers are immune from Fourth Amendment violations when they rely on a search warrant that has been approved by a magistrate, even if the warrant was not supported by "probable cause." As Alito quotes Malley v. Briggs, "Only where the warrant . . . application is so lacking in indicia of probable cause as to render official belief in its existence unreasonable . . . will the shield of immunity be lost." In Groody, the officers seeking a search warrant of a house of a suspected drug dealer requested in the affidavit to search people within the house, but the text of the warrant issued did not include searching people within the house. The Officers searched the suspects family: they are not coved by the warrant, but would be covered by the affidavit.

The majority held that Supreme Court precedent is clearly established that the warrant text governs what is allowed under the warrant, not what is in the affidavit. Alito argued that because the warrant incorporated the affidavit with respect to probable cause, it was ambiguous whether it allowed officers to search occupants other than the suspect. It was not clear to the officers that the search was not allowed under the warrant, and thus, qualified immunity applies. It is a reasonable argument.

I don't mean to be an apologist for Alito. Justice O'Connor is too conservative for my taste*, and Alito is likely to make many decisions that will be harmful to working Americans, limit our rights under the Constitution, and expand the rights of business interests. However, making this case is much more difficult than saying "Alito supports strip-searching little girls." Had the officers been more careful in writing the warrant, the case would probably have no chance of success, even with liberal judges.

I would like to see the Court fix the original mistake: the misguided interpretation of the Eleventh Amendment that gives State immunity from violations of federal statutory and Constitutional law. If States could be sued directly for violating the Constitution, we wouldn't have to worry about constitutional violations going unpunished/uncompensated, nor worry about liability for officers who are reasonably doing what they believe is their job.

The non-literal Eleventh Amendment interpretation has also has helped to create a rule hated by conservatives: the exclusionary rule. Without another effective means of encouraging police to abide by the Constitution, the Court has held that violations of the Constitution result in probative evidence being excluded from trial. We have a system that rewards criminals whose rights are violated and denies the innocent compensation. If stiff financial penalties were assessed for every Conditional violation, an exclusionary rule might no longer be necessary. Or the rule could be narrowed to willful or reckless violations.

*I must note that I hate Justice O'Connor being called a moderate by every news reporter and pundit -- even the “liberal” ones do it. She is Conservative. She is the swing vote on a (7 out of 9) Republican Court. Being a swing vote does not a Justice moderate, it simply means that there are 4 more votes to the right. Appoint a few Janice Rogers Brown to the Court and Scalia could be the swing vote.

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