Lots of mouths continue to foam as a result of Chumley's inflammatory diary about Judge Scalito's dissent in
Doe v. Groody. Scalito's dissent is troubling but not for reasons of moral degeneracy. The moral degeneracy/pervert/sexual weirdo/pedophile comments seem to be coming from people who don't have any appreciation of the role of a court of appeals judge in a case like that one. I'll try to explain it.
A. This Case was about Whether the Doctrine of Qualified Immunity Applied to an Improperly Executed Search Warrant.
What is qualified immunity? From the decision:
Qualified immunity protects law enforcement officers from being tried for actions taken in the course of their duties. If the immunity applies, it entitles the officer to be free of the "burdens of litigation." Mitchell, 472 U.S. at 526. But the immunity is forfeited if an officer's conduct violates "clearly established statutory or constitutional rights of which a reasonable person would have known."
A qualified immunity claim is measured by the objective reasonable person standard in possession of the facts held by the officer or officers claiming the defense.
B. History of Immunity
The doctrine of governmental immunity from suit has existed in US law in some form or another since 1821 when Chief Judge Marshall declared that the United States could not be sued without its consent. The federal government waived its immunity in tort cases in 1946 with the passage of the Federal Tort Claims Act. Some members of government continue to enjoy absolute immunity for discretionary acts performed in the course of employment, i.e., judges, while others enjoy only qualified immunity, i.e., police officers.
C. The Warrant Requirement for Search and Seizure.
The Fourth Amendment generally requires police to obtain a search warrant before detaining and searching persons or searching private property. There are numerous exceptions to the warrant requirement that aren't relevant here. In Doe v. Groody, no exception to the Fourth Amendment's warrant requirement was involved in the holding. It was quite clear that the search of Jane Doe and Mary Doe required a warrant.
D. The Majority vs. Alito.
An officer seeking a search warrant submits an affidavit to a judge or magistrate. The magistrate reviews the affidavit and either issues or declines to issue the search warrant. If issued, the magistrate may narrow the scope of the requested search if he or she deems it too intrusive or not supported by probable cause.
In this case, the officer seeking the search warrant submitted an affidavit that requested authority to search all persons found at the target drug dealer's premises. The search warrant, however, did not authorize so broad a search.
The police searched the mother and daughter nonetheless, and the mother and daughter sued, alleging violation of their civil rights. The police sought dismissal of the lawsuit based on the doctrine of qualified immunity -- that their search was reasonable under the circumstances -- given that the search warrant should be construed more broadly than its language because of the language of the affidavit submitted in support of it.
If the search warrant had simply incorporated the affidavit by reference, the police officers would have won the case. It didn't; the judges disagreed about whether it should be so read anyway, and Alito lost that debate. It's a close enough question that nobody deserves to be called intellectually bankrupt, let alone a moral degenerate.
E. Conclusion.
What in the hell do you think judges can do in a circumstance like that? Just out of the blue declare that regardless of the existence of a search warrant, no police officer can ever search a 10 year old girl? Judges don't have that authority, at least judges below the level of the Supreme Court don't. Lower court judges usually have to decide only those issues that are placed before them. The issue before Alito and the other two judges was the application of qualified immunity.
The only troubling thing, to me, about Alito's opinion is that it foreshadows a willingness to make further incursions into the Fourth Amendment. As for the rest of it, all of this moral degeneracy talk and the like, if you're going to persist in these wacked out accusations, you're no better than those who foam at the mouth in the right wing.