Date: January 12, 2006
Senator: Sessions
Topic:
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SPECTER: Thank you, Senator Kennedy.
Senator Sessions?
SESSIONS: Well on the Doe case, Mr. Phillips, Doe v. Groody, this was a question involving a lawsuit you as a solicitor general, you've had to defend law officers of personal damages, you're being sued. At best there was an appearance, was it not, that this affidavit was in fact made a part of the warrant because the magistrate judge intended it so and said it.
PHILLIPS: Senator Sessions, that is to the least of my mind a complete answer to the professor's argument, which is this doesn't have anything to do with two different analytical approaches. It has to do with how do you apply qualified immunity and what deference do you owe to the individual officer who is in a very precarious position, making decisions on the fly.
You know, I think if you read the opinion, it's quite, as I said, scholarly, thoughtful, analytical, almost apologetic with respect to the consequences to the individuals involved, but still recognizing at the end that qualified immunity is designed to provide precisely the kind of gate keeping function that the court exercised there in order to take those kinds of issues away from the jury because that's the only way you can protect the greater societal interests that are implicated.
SESSIONS: So he did a search warrant on a house where dope dealers were there and he followed the instructions of the magistrate. They conducted a search of the young girl in a private chamber by a woman officer without removing all of her clothes, just pulling down her outer garments and a blouse up, apparently. And from the indications of the magistrate, that was permitted. And so, the question was was he acting within the line or scope of his employment and was this officer subject to personal suit for money damages. Isn't that correct?
PHILLIPS: That's absolutely right, Senator.
SESSIONS: Well, I'm telling you our police officers have a hard enough time understanding these laws of search and seizure. They are very complicated. And the judges throw out searches all the time when they're not proper. But to sue the officer who's trying to do the right thing, I think, Judge Chertoff was in error. And I'd like to see him back on here. I'll serve the U.S. attorney with him. I'll ask him about that case. I think Judge Alito was correct. Maybe he was not. But I think he had a good basis for that decision. And I'm concerned about it.
And Mr. Liu, with regard to the Kithcart case in your written opinion here, you quote a dissenting opinion from Judge McKee that said that this is where you criticize Judge Alito for holding that there was not a basis for arresting a black individual who was in a black sports car after some armed robberies that occurred. So that was the message apparently that went out. And the officers stopped the car and arrested this individual.
He was black in a black sports car. And the judge said that's not enough. That's basically racial profiling. And he left open, as I understand, the question of whether or not the stop was legitimate. And this judge -- correct me if I'm wrong. And maybe some of you prosecutors would jump in. But Judge McKee you quote favorably here. He said, "Just as the record fails to establish that Officer Nelson had probable cause to arrest any black male who happened to drive by in a sports car, it also fails to establish reasonable suspicion to justify stopping any and all such cars that happen to contain a black male.
Now, isn't there quite a difference of proof standard between the authority of an officer to arrest someone and the authority of an officer to do an investigative stop? Isn't that clearly a different standard? And wasn't Judge Alito correct to suggest that there's a different standard for the investigative stop than it is to arrest someone?
LIU: I think that's true, Senator Sessions. There is definitely a difference of standards. One is a reasonable suspicion standard. The other is a probably cause standard.
In this case, I want to be absolutely clear in my testimony. I'm not criticizing Judge Alito for his result. I'm saying he's correct, but Judge McKee is saying that he didn't go far enough. Judge McKee is dissenting to the other side of Judge Alito by saying that by the same logic that racial profiling prohibits the probable cause finding, it also prohibits the reasonable suspicion finding.
SESSIONS: Well, in that I think the law is clearly to the contrary. I think officers who have that kind of information can at least stop a vehicle. At least there's certainly far more authority to do that than it is. And the standard is different, pretty clearly.
Thank you, Mr. Chairman. I won't...
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