A Stitch in Haste

Reviews and previews —

ITEM: The Supreme Court granted certiorari in an important students rights case:

School officials in Safford, Arizona, ordered the search in 2003 of Savana Redding, who was in the eighth grade. Following an assistant principal’s orders, a school nurse had Redding remove her clothes, including her bra, and shake her underwear to see if she was hiding ibuprofen, a common painkiller.
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The strip search had been prompted by an unverified tip from another girl who had Redding’s school planner and some ibuprofen pills. She claimed Redding had given her the pills.

Redding denied it and an initial search of her backpack and pockets did not turn up any ibuprofen. The assistant principal then ordered the strip search to be done in front of the nurse and his administrative assistant, both women.

In fact, the girl had a previous record of illegally selling prescription-strength ibuprofen on school grounds.

There were, as is often the case with questions of constitutional rights violations, two sequential questions. First: Was there in fact a constitutional rights violation? Second: If so, then are the government officials entitled to qualified immunity (i.e., can they be held personally liable for their actions)?

The Ninth Circuit found a Fourth Amendment violation, which is not particularly controversial; the law regarding strip searches is well-established and quite demanding, even in prison settings, let alone a school. The appellate court also found, however, that qualified immunity did not apply and that the assistant principal is personally liable for ordering the search.

My initial guess is that the Supreme Court took the case because of the denial of qualified immunity rather than to revisit the propriety of the search itself. Piercing immunity is a very high hurdle that is rarely upheld: assistant principals, like police officers, are not lawyers and certainly constitutional law scholars. They tend to get the benefit of the doubt.

Therefore, I predict that the court will uphold the Ninth Circuit’s 8-3 finding that the search was unconstitutional, but reverse the 6-5 ruling that qualified immunity does not apply.

The case is Safford Unified School District v. Redding, No. 08-479. My previous post on the case here.

ITEM: A federal district judge has ordered the release of a Guantanamo detainee, finding in a habeas corpus review that the government has no credible evidence against him:

Al Gharani was 14 years old when he was captured in Pakistan some seven years ago. He has been at Guantanamo since then. The U.S. government, in Judge Leon’s court, had relied mainly upon statements from two other Guantanamo prisoners who claimed that Al Gharani had stayed at a guesthouse in Afghanistan that was affiliated with the Al Qaeda terrorist network, had been trained at Al Qaeda military camps, had fought against U.S. and allied forces at a battle at Tora Bora in Afghanistan, and was a member of a terrorist cell in London.

Each of those contentions came from other detainees, Judge Leon said, and the judge found the statements inconsistent or unverified, and had no support from other evidence.

Without the Supreme Court’s historic — and heroic — ruling in Boumediene v. Bush that wherever the United States Government goes, the Constitution goes with it, this “terrorist” would likely have rotted in Guantanamo indefinitely. But remember that the Bush Administration, to the bitter end, insisted that everyone at Guantanamo is “guilty” and a “terrorist.”

The case is Gharani v. Bush, No. 05-429 (D.D.C., January 14. 2009) (PDF – 11 pages). My previous post on Boumediene here.

ITEM: The “exclusionary rule” requires courts to suppress evidence obtained from unconstitutional searches under certain circumstances. The Supreme Court recently eliminated one of those circumstances —

The Coffee County, Alabama Sheriff’s Department apprehended Bennie Herring in July of 2004. Upon searching Herring’s vehicle, officers discovered methamphetamine in Herring’s pocket and a gun under the seat of his truck. However, the situation was complicated by the fact that the initial search had been made on a faulty arrest warrant. The warrant, still active in the neighboring Dale County Sheriff’s Office, was supposed to have been recalled five months prior, however someone had accidentally failed to remove it from the computer system.

The Court held, 5-4, that mere negligence is not sufficiently culpable to trigger the rule:

To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system. As laid out in our cases, the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence. The error in this case does not rise to that level.

Others have already labeled Herring the “Barney Fife exception” to the exclusionary rule. My frustration with the reasoning is that it ignores the entire law of torts (i.e., that even “mere” and “non-recurring” negligence still warrants a remedy in the civil context, so why shouldn’t it also warrant a remedy — the exclusionary rule — in the criminal evidence context as well?).

The exclusionary rule was misconceived from the outset. It has never been considered a constitutional right, but merely a tool to encourage responsible law enforcement. That logic has always been, and remains, absurd. “Free from unreasonable searches” means free from any and all fruits of unreasonable searches. An absolute, exception-free exclusionary rule is the only possible implication of the Fourth Amendment. It should have, as Justice Ginsburg suggests in her dissent, a “majestic conception” — just like the Fourth Amendment itself.

The case is Herring v. U.S., No. 07–513 (January 14, 2009) (PDF – 28 pages). You can peruse my recent Fourth Amendment posts here.

Filed under: Fourth Amendment, Law Enforcement Abuses, Privacy Issues, Student Rights