Joel Jacobsen

The inimitable Dahlia Lithwick once spilled the beans about Opinion Bingo, a game among appellate court law clerks (recent law school grads hired to assist the judge, not to be confused with court clerks, who actually clerk).  In Opinion Bingo, "[p]oints are earned for working a randomly selected word from Webster's into any published opinion."  The clerk who scores a lot of points gets free beer and pizza from his or her fellow clerks.

One Ninth Circuit opinion from 2000, signed (but apparently not read) by Judge Ferdinand F. Fernandez, originally a a Reagan appointee, described difficulties as "sempiternal," an argument as "aduncous", and capped everything by announcing the court's unwillingness to "rely on some resident numen or wait for Fulgora to light our way."  Just think how much free beer and pizza those words represented!

The Supreme Court had to reverse, of course, if only out of embarrassment for Judge Fernandez.  It did so unanimously, just a month and four days after argument, which is remarkably quickly for the Court.

The opinion written by Judge Fernandez's clerk was comic in other ways, too.  The basic facts of the case were these:  The Napa County Sheriff's Department suspected Mark Knights was responsible for repeated acts of vandalism against Pacific Gas & Electric equipment.  One of the attacks knocked out power to the Napa County Airport, causing more than a million dollars of damage and endangering aviation. 

As it happened, Knights was on probation for a drug offense.  As a condition of probation he had signed an agreement that permitted "any probation officer or law enforcement officer" to search his apartment without warrant "at anytime."  Believing the agreement meant what it said, deputies searched Knights' apartment. 

The search "turned up detonation cord, ammunition, unidentified liquid chemicals, instruction manuals on chemistry and electrical circuitry, bolt cutters, telephone pole-climbing spurs, drug paraphernalia, photographs and blueprints stolen from [a] burglarized building, and a brass padlock stamped PG & E."

You can see why Knights' prosecution on federal arson and explosives charges had to be stopped.  Can't you?

While agreeing that Knights had agreed to random searches when he signed the probation agreement, Judge Fernandez pointed out that the deputies weren't trying to "advance the goals of probation, the overriding aim of which is to give the probationer a chance to further and to demonstrate his rehabilitation …"  Instead, the deputies "were interested in investigating the string of crimes of which Knights was thought to be the perpetrator."  

In short, it was the deputies' interest in investigating crime that, to a Reaganite judge, made the search unconstitutional.

The prosecutors in Knights' case argued that the constitutionality of the deputies' actions ought to depend on the actions themselves, not on some judge's after-the-fact guess about what the deputies were thinking at the time they performed the actions.  Fernandez was unswayed:

Here the issue is not whether a search or seizure with probable cause should be invalidated because of an officer's subjective intentions.  It is, rather, whether, without another basis for a warrantless home search, there was consent to the search in the first place.  That is a different question entirely.

This passage is an excellent reminder that power is a useful substitute for insight – it ends the debate just as completely.  According to Fernandez, Knights consented only to searches motivated by the earnest wish to further his rehabilitation.  The search was not within the scope of his consent because the deputies entertained a different subjective intention.  That is, the issue was whether a search with probable cause should be invalidated because of the officer's subjective intentions. 

The distinction Fernandez pretended to be drawing was no distinction at all.  The passage is another example of "the first distemper of learning, when men study words and not matter."  (See post 129.) 

If the officers had been thinking good thoughts while they searched Knights' home, the search would have been A-OK under the Constitution.  Nothing the cops did – nothing that affected Knights, or was even perceptible to him – was a problem, but only the hidden thoughts and impressions that Judge Fernandez believed were flitting across their minds.

There is an almost universal tendency among judges to make the legality of police actions turn on the subjective thoughts and feelings of officers, rather than the actual experience of the suspect.  A cop who latex-gloved hand is patting you all over is equally invading your space whether she's thinking judge-approved thoughts or not.  The cop's thoughts and feelings are matters of complete indifference to the suspect -- he or she is only interest in the cop's actions.

The Ninth Circuit's opinion in Knights was particularly silly, but the impulse it reveals is anything but.  Whose interests do judges think they're enforcing with their rulings?  If they were solely interested in protecting the rights of suspects, they would examine the event from the suspect's point of view, asking what the officers did and when and why they did it.

But if, on the other hand, judges are primarily motivated by the fantasy that they control the police, then they would naturally look at the event from the cop's point of view.  And if certain insecure judges were to become concerned that they were being outwitted by working-class guys in clip-on ties (the clip-on prevents choking), they would come to see themselves involved in a contest in which their task was to invent new rules to prevent sneaky cops from evading the prior rules.

The more judges fixate on the subjective states of mind of individual police officers, the more they reveal that their primary concern is not the rights of the suspects, but the subordination of police officers to their own authority.

Judge Fernandez's peroration in Knights ended with this peculiarly unself-conscious self-revelation:

In making this decision we need not rely on some resident numen or wait for Fulgora to light our way.  We can, instead, rely upon the wisdom of the ages and upon the sagacity of the numerous Ninth Circuit judges who have written before us. If we do not heed all of that history and learning, who will?

Kinda makes you hope he didn't read it before he signed it, doesn't it?