First off, feel free to hate and/or oppose Alito. This is not an endorsement of him or his politics, or Bush, or the White House, or the Republican Party.
I've seen all over the place comments about Alito allowing the strip search of a 10-year old girl and her mother because the father and husband and the family home was being searched for narcotics.
This is probably the MOST dishonest attack I've seen on a judge or really anyone. It's really sad that despite everything wrong with Alito this is where it stands: hysterically misrepresenting a complex technical argument about the 4th amendment.
Primary source: the final ruling by the 3rd circuit court of appeals.
link.
You've heard the major bits of the story: father is suspected of drug offenses. Police want to search him for evidence. That's all true. That's not in dispute. But the imputation around dkos is that Alito ruled to allow the strip searching of 10 year olds, which, really, is not what the case is about.
This case is actually about the technicalities of search warrants.
As if often the case the warrant had an attached affadavit. The warrant referred in several places to the attached document. In the document was this paragraph:
As a result of the information developed, your
affiant requests that a search warrant [...] be issued for [...] the residence of [John Doe] and all occupants therein.
The case arises because on the actual application for warrant, under the spot for "Specific description of premises and/or persons to be searched" John Doe was described and no mention of the affadavit was made. In other portions of the warrant references to the affadavit are common - for example under "probable cause" the attached affadavit is referenced. The affadavit serves as an addendum to the actual application.
The mother and girl sued the police officers for violating their civil rights under the 4th amendment. The District Court ruled that the police officers were immune because of a legal theory called "qualified immunity". If you are a police officer and act in accordance to your legal duties you are personally immune from civil ligitigation. If you violate the law or policy during your duties, you may be liable. So the District Court dismissed the suit saying the officers acted in accordance to the law and were therefore immune.
The appeal claimed that because the application for warrant did not reference the affavadit, which clearly asked for the right to search all those present on the premises at the time of the search, that the search performed was outside of the authority of the warrant, and therefore illegal, and therefore the officers are not immune.
There is no question though that had the application made a four or five word reference similiar to "See attached affadavit for additional subjects" the officers action would have been legal.
This is what Alita wrote in dissent:
I would reverse the order of the District Court and direct that summary judgment be entered in favor of the
defendants. First, the best reading of the warrant is that it authorized the search of any persons found on the premises. Second, even if the warrant did not contain such authorization, a reasonable police officer could certainly have read the warrant as doing so, and therefore the appellants are entitled to qualified immunity.
Alito gives his defense of these two points, bringing in cites from other cases which provide leeway for clerical and oversights, and that allow the intent of the application to be looked at. The other two judges did not agree.
This is a really important concept. All three judges involved refused the emotion of the case that was inherent. No one likes to imagine a scared 10 yr old girl strip searched. But, at the same time, it is legally permissible. Alito did not legalize it, or endorse it. He had nothing to do with it.
I really don't think that if anyone read the actual case they could disagree with the premise that Alito's argument was, if not convicing, within the limits of what is reasonable. It wasn't "batshit insane" or "deep in wingnut" terrority.
His basic position is that: the affadavit requested the right to search all persons, the application conflicted. In a case of a conflict we should be lenient and side with the clear intent of the officers involved. The other two judges believed that relying on the affadavit in the case of a conflit creates a burden on the accused, and should not be allowed.
I can see both sides of the issue: you shouldn't be subject to a search which requires pages and pages of explanation written in dense legalease - thats why the 4th amendment asks for a clear description written down of who and what is to be searched. At the same time it is unreasonable to ask the police to be 100% free of error in the prepartion of applications for warrants. The clear intent of all involved was to search all present in the house. This was understood by the magistrate issuing the warrant as well as those applying for the warrant and those actually ordered the search. There is no doubt they believed at the time they were legally justified in searching the mother and 10-year old daughter. Subjecting police officers to civil lawsuits when they reasonably believe they are following the letter of the law is very, very dangerous and could hobble effective law enforcement.
I think both are reasonable. This is the type of case that explemifies why we have judges. There isn't a clear answer on the topic. Two reasonable people can disagree on the issue.
Using this case as a stepping stone to drumming up anti-Alito sentiment is simply shaemful. Yes, disagree with it. But don't sensationalize it and make it something it's not.
Read the opinion, and tell me where I am wrong!