Fourth Circuit’s Flaccid Decision

The story of Manassas, Virginia detective David Abbott’s obsession with obtaining images of 17-year-old Trey Sims’ erect penis has become legend, much to Abbott’s dismay given his deep association with possession of such things. There was a crime to solve, and this young man had what the detective believed to be the offending penis.

After all, when one makes obtaining images of a teen’s erect (not flaccid, which would be entirely different) penis his life’s goal, why see it as a sick perversion rather than the dogged determination of a dedicated detective? After the district court conferred qualified immunity on Abbott*, the Fourth Circuit reversed.

We cannot perceive any circumstance that would justify a police search requiring an individual to masturbate in the presence of others.

Here, the obvious, unconstitutional invasion of Sims’ right of privacy that was required to carry out the warrant rendered reliance on that warrant objectively unreasonable, thereby eliminating the protection that a search warrant typically would have afforded an executing officer.

Much as this might seem “obvious,” as well as correct, there are a few considerations missing from the majority opinion. Yes, that was “majority,” as there was a dissent by Judge Robert Bruce King**.

A duly issued search warrant is a court order and is entitled to be respected and complied with, particularly by law enforcement officers, members of the public, and the courts. The simple rule that a court order is to be obeyed is foundational to our legal system and an independent judiciary.

Warrants don’t blossom out of the ether, but rather are sought and obtained by police and prosecutors for their own purposes. Judge King’s suggestion that the warrant “is to be obeyed” misses his own mark, since the warrant was sought by Abbott, not against him.

But that doesn’t change the other aspect of the warrant, that no matter how awful, how disgusting, how outrageous a warrant application may be, the mechanism for obtaining it is to have a neutral magistrate review it and make a decision as to whether it should be issued. Abbott did that. A judge signed off.

How obviously wrong can this be if a judge approved the warrant? How obviously wrong can Abbott be for relying upon the judge’s issuance of the warrant (actually, there were two, but let’s not muddle the case with extraneous details)?

And if a cop can’t rely on a warrant issued by a neutral magistrate, what’s a cop to do?

When a judicial officer — such as a state court magistrate — has issued a search warrant upon probable cause, specifying therein that which is to be searched and seized, it is unreasonable to require the officer charged with executing the warrant to reject the judicial decision and disobey the court’s directive.

While Judge King again seems to be unaware that Abbott sought the warrant, and wasn’t just some poor erection-crazed mope “charged with executing” it, the thrust of his dissent has a point. Abbott used the process the Constitution requires, he obtained a warrant. This wasn’t just one twisted penis-obsessed cop, but an adherent of the warrant clause who obtained judicial approval. What more could one expect of him?

All of which goes back to the majority’s use of the word “obvious” in its conclusion that this warrant for an erect dick pic of a teen was “unreasonable.” What of the neutral magistrate who signed off on this warrant?

The judge granting the warrant is cloaked in absolute immunity for his decision, so there is no liability possible. But is the judge named? Does the majority direct a message to this judge that he was one sick, incompetent, fuck?

If this warrant was so obviously unconstitutional, so obviously unreasonable, taking it out on the cop was well justified, but giving the judge who read the application, approved it, signed it,  a pass is a gaping hole. While the judge will suffer no financial consequences, isn’t there some disdain left after Abbott to dump on the judge who thought taking a picture of a teen’s erect penis was a totally fine idea?

For the groundlings who might suspect that the judicial cabal protects its own, covers up the dead bodies bad decisions leave behind, we can usually explain some legal gibberish to justify why their “obviously” wrong decision wasn’t totally off the wall. But this one?

Is there no line beyond which the court should name and shame, make explicit that the judge who approved this warrant, authorized Abbott’s deepest desire to get his teen, was not merely in error, but sick and twisted? For all the ridicule one can dump on Abbott, why should the judge who approved of this get a walk?

*Abbott died in the interim, and the action is being maintained against the administrator of his estate. Yes, I know how he died, but have chosen not to include that so as not to divert attention from the point of the post. I know you’re just bursting to say something, but please exercise restraint.

**While I’m disinclined to name the president nominating a judge, as it’s entirely irrelevant to the judge’s decisions, Judge King was appointed to the Fourth Circuit by President William Jefferson Clinton. You might want to know.

H/T Brad Heath

21 thoughts on “Fourth Circuit’s Flaccid Decision

  1. Ryan

    In Virginia the magistrates aren’t actually judges, unlike in the federal system, they are just dudes who were appointed to a position titled magistrate by real judges. Virginia magistrates have a few powers which include granting search warrants, arrest warrants, and a few other things. I believe one only needs a bachelors degree to be a magistrate, though clearly a law degree would be helpful. Magistrates offices are not in the courthouses, they are actually inside the jails. So when I’ve held a client’s hand turning them in at night well go to the jail and then to the the magistrates little office inside.

    1. SHG Post author

      I hear you, but you want to know what makes magistrates actually judges? They are just dudes appointed to a position that authorizes them to sign warrants.

  2. Robert

    Do you think the magistrate who signed off on any warrants or issued any interlocutory orders should be identified in appellate captions along with the trial court judge?

  3. Skink

    Judge King is correct. The issue is not whether the 4th Amendment was violated in carrying out the warrant, but whether law enforcement is protected from civil liability by executing a validly-obtained warrant. If the warrant is validly-obtained, there can be no liability in carrying out its mandates. Going beyond its mandates can incur liability, but that isn’t the issue in this case.

    Abbott got advice from a Commonwealth attorney before going to the magistrate, and there is no hint that he lied to the magistrate. Both are heavy indicators that qualified immunity should be recognized, and qualified immunity is the rule–not an exception–it must apply unless the officer clearly acted unlawfully.

    That Abbott sought and carried out the warrant means nothing. That’s how it usually works. The only question is whether he acted reasonably. He did more than that: he sought the advice of a lawyer, who obviously said it was constitutionally good-to-go. Abbott was entitled to rely on that advice. That act is important, as it dispels any notion that the warrant was issued in a clearly unconstitutional manner by a judge that lost his mind.

    This isn’t a privacy issue at all, and that’s where the majority gets it wrong.

    1. SHG Post author

      Actually, when the majority uses the word “obvious,” that proves they’re clearly right. Period.*

      *This is replete with memes with which you may be unfamiliar. Don’t try this at home.

      1. grock

        It’s cute that he actually thinks he knows what this “lawyer” said,or if in fact a lawyer said it was OK it must therefor be “constitutionally good to go”. Of course lawyers are never wrong on matters of constitutional law or privacy and every lawyer is well versed and competent to offer council on such issues . . . . oh wait.

  4. Skink

    I’m familiar, overly, with the rule of obviousness: if an assumption is obvious, it is likely wrong.*

    *I have no idea if such a rule exists, but it should. After all, it’s obvious.

  5. B. McLeod

    Even William Jefferson Clinton knew he had to make that appointment. The file probably hit his desk marked, “King, Robert Bruce.” That’s the sort of nominee who is just going to keep trying until he gets the post.

  6. Pedantic Grammar Police

    Some lawyers will say anything to help their team win. This reminds me of the Yoo torture opinion.

    I didn’t know that judges couldn’t be held responsible for signing bad warrants. Is there no limit? Could a judge sign a warrant authorizing a police officer to remove money from a bank and split it with the judge, if a friendly lawyer had opined that it was all legal and proper?

    1. SHG Post author

      Would it be okay with you if we limited comments to the post rather than stuff you didn’t know and random irrelevant stuff that pops into your head? TIA.

    1. SHG Post author

      The name was left out of this post because it was directed at the Fourth Circuit. The name is in my earlier linked post, Jan Roltsch-Anoll. She might not be “his honor” after all, but you never know.

  7. LocoYokel

    I’m sure SHG is going to castigate me for feeding your rambling, but,

    There is a process that they can be held accountable under. It’s not easy but it has been done a few times in US history.

    It’s called impeachment.

    1. SHG Post author

      I will not castigate. I will just leave this here so everyone can laugh at you behind your back. FYI, impeachment applies to Article III judges and, I would guess, some state judges, but not here.

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