The
phrase
“no
harm,
no
foul”
doesn’t
apply
to
law
enforcement
personnel,
whether
they’re
patrol
officers
or
the
chief
local
prosecutor.
Instead
—
thanks
to
the qualified
immunity
doctrine —
the
phrase
is:
“whatever
amount
of
harm,
no
foul.”
As
long
as
the
harm
isn’t
something specifically covered
by
precedent,
the
general
feeling
of
courts
is
that
law
enforcement
shouldn’t
be
punished
for
rights
violations
they
can
plausibly
(at
least
under
precedent)
claim
they had
no
idea were
rights
violations,
no
matter
how
immediately
egregious
those
rights
violations
were.
And
so
it
is
here,
even
if
this
case
was
last
reviewed
by
the
appeals
court least
likely
to
cut
cops
slack:
the
Ninth
Circuit
Court
of
Appeals.
Here’s
the
background
of
the
case,
which
shows
just
how
routinely
awful
law
enforcement
can
be,
especially
when
they
know
they’ll
rarely
be
required
to
face
a
jury,
much
less
face
any
internal
discipline
for
abusing
people’s
trust,
if
not
their
constitutional
rights.
An
Oregon
woman’s
nude
photos
ended
up
the
topic
of
conversation
in
her
small
town
after
a
prosecutor
looked
through
her
sensitive
cellphone
data
and
told
the
county
sheriff
what
he
found
despite
no
warrant,
no
consent
and
no
suspicion
that
she
had
committed
a
crime.
[Sad
trombone]:
But
the
district
attorney
involved
won’t
face
legal
consequences
under
a
federal
appeals
court
ruling
released
Monday.
Here’s
more
of
the
story,
via Oregon
Live’s
reporting.
The
plaintiff,
Haley
Olson,
ran
a
(legal)
marijuana
shop
in
Oregon.
She
was
pulled
over
in
Idaho
(where
recreation
use/possession
isn’t
legal)
and
charged
with
possession.
During
the
search
of
her
vehicle,
Idaho
State
troopers
found
a
business
card
belonging
to
her
boyfriend,
Grant
County
(OR)
deputy
Tyler
Smith.
Olson
consented
to
a
search
of
her
cell
phone.
(Folks,
please never do
this.)
The
state
police
performed
a
forensic
extraction
of
her
phone’s
contents.
Shortly
thereafter,
state
prosecutors
dropped
the
charges
against
Olson.
But
Idaho
law
enforcement
still
had
a
copy
of
Olson’s
phone
data.
Suddenly,
that
was
of
some
interest
to
her
boyfriend’s
employer,
the
Grant
County
sheriff’s
department.
But Glenn
Palmer,
the
Grant
County
sheriff
at
the
time,
had
called
the
Idaho
trooper
who
handled
Olson’s
case
shortly
after
her
arrest.
Palmer
had
apparently
heard
about
the
arrest
from
another
sheriff’s
office
employee
and
was
“curious”
about
whether
Olson’s
phone
might
reveal
misconduct
on
Smith’s
part,
the
appellate
court
wrote.
Palmer
learned
during
the
conversation
that
the
deputy’s
card
had
been
discovered
in
Olson’s
car
and
asked
the
Idaho
trooper
to
share
the
contents
of
Olson’s
phone,
but
Idaho
authorities
rejected
his
request,
according
to
the
opinion.
That
should
have
ended
that.
And
I
don’t
really
have
an
objection
to
a
deputy’s
employer
wanting
to
see
if
their
employee
might
be
involved
in
things
an
officer
shouldn’t
be,
even
if
that
thing
was
only
assisting
with
the
sale
of
a
now-legal
drug.
But
it
didn’t
end
there.
After
being
rejected
by
the
Idaho
State
Police,
Sheriff
Palmer
approached
district
attorney
Jim
Carpenter
and
encouraged
him
to
obtain
a
copy
of
Olson’s
phone
contents
and
review
them.
Carpenter
did.
He
sent
an
email
to
Idaho
prosecutors
requesting
a
copy
and
promising
it
was
for
“internal
review
only”
and
wouldn’t
be
shared
with
anyone
outside
of
his
office.
Of
course,
that’s
not
what
happened.
Carpenter
immediately
violated
his
pledge
to
Idaho
police
and
asked
detectives
from
two
outside
agencies,
the
Oregon
State
Police
and
the
Deschutes
County
Sheriff’s
Office,
to
review
the
flash
drive
material,
according
to
the
appellate
opinion.
Both
agencies
declined,
because
it
wasn’t
tied
to
a
criminal
investigation,
the
opinion
said.
Carpenter
reviewed
the
phone
contents
himself
in
April
2019,
found
nude
photos
of
both
Olson
and
Smith
and
contacted
the
sheriff
to
tell
him
that
the
phone
showed
evidence
of
an
intimate
relationship
between
Smith
and
Olson,
the
ruling
said.
Carpenter
also
added
that
he
had
seen
nothing
that
indicated
anything
improper
was
happening.
Nonetheless,
he
seemed
extremely
insistent
that
the
sheriff
view
the
contents
of
the
phone,
referring
not-all-that-cryptically
to
content
“that
couldn’t
be
unseen”
once
viewed.
At
some
point,
the
sheriff
finally
gave
in.
And
then,
according
the
lawsuit,
he
began
handing
this
content
out.
Olson
said
a
Grant
County
deputy
whom
she
didn’t
know
came
into
her
marijuana
store
and
told
her
that
he
had
heard
“there’s
some
pretty
smokin’
pictures
of
you
going
around
the
sheriff’s
office,”
the
appeals
court
wrote.
Another
witness
reported
observing
two
sheriff’s
employees
looking
at
nude
photos
of
Olson
on
a
phone,
according
to
the
opinion.
Nothing’s
going
to
happen
to
the
DA,
who
—
despite
declaring
there
was
nothing
of
(criminal)
interest
on
Olson’s
phone
—
felt
compelled
to
share
the
stuff
of
(prurient)
interest
with
the
sheriff.
And,
apparently
(or
allegedly,
if
you
prefer),
the
sheriff
felt
compelled
to
share
that
with
his
employees.
The
end
result
is
the
dismissal
of
the
prosecutor
from
this
lawsuit,
despite
the
Ninth
Circuit
making
this
statement
early
on
in
its decision [PDF]:
We
have
no
difficulty
concluding
that
Carpenter’s
search
was
unreasonable.
Even
before
reaching
the
question
about
the
unauthorized
sharing
of
the
unreasonably
searched
data,
the
court
has
already
found
the
original
search
was
unlawful.
It
goes
on
to
dismantle
the
DA’s
justifications
for
his
search:
Compared
to
those
weighty
privacy
interests,
the
two
asserted
government
interests
are
unavailing.
Palmer
was
“curious”
about
whether
Olson’s
phone
might
reveal
misconduct
on
Smith’s
part.
Carpenter
was
interested
in
reviewing
the
phone
for
possible
Brady
material
in
cases
where
Smith
might
testify.
Olson
was
arrested
in
Idaho
for
the
possession
of
marijuana,
which
is
not
illegal
in
Oregon,
and
there
was
no
reason
for
Palmer
or
Carpenter
to
suspect
that
Smith
had
taken
part
in
criminal
activity.
Not
surprisingly,
Carpenter
was
never
able
to
articulate
which
cases
he
was
concerned
that
Smith
would
testify
in,
and
for
which
any
Brady
material
regarding
this
incident
would
be
relevant.
No
precedent
supports
invoking
a
hypothetical
Brady
concern
to
overcome
the
warrant
requirement.
Not
obvious
enough
of
a
rights
violation,
says
the
Appeals
Court.
Although
we
conclude
that
Carpenter’s
warrantless
search
of
Olson’s
cell
phone
constituted
a
Fourth
Amendment
violation,
the
law
was
not
clearly
established
at
the
time
of
the
search.
The
DA
walks
away
from
this
lawsuit.
As
disappointing
as
that
is,
at
least
the
Ninth
Circuit
goes
where
most
appellate
level
courts
won’t:
it
establishes
precedent
so
the
next
fucker
who
tries
this
shit
won’t
get
away
with
it.
Because
it
is
important
to
lay
down
a
marker
for
future
cases,
we
heed
the
Court’s
call
in
Pearson
to
develop
constitutional
precedent
and
conclude
that
Carpenter’s
search
infringed
on
Olson’s
Fourth
Amendment
rights.
And
that,
as
sad
as
it
is
to
say,
is way better
than
the
nothing
courts
often
content
themselves
with
doing
in
cases
dealing
with
obvious
and
egregious
rights
violations.
So,
of
course,
there’s
a
concurrence
(this
one
written
by Federalist
Society
member
Judge
Daniel
Bress)
that
says
he
agrees
the
DA
should
get
away
with
this
but
that
the
court
went
too
far
by
establishing
precedent:
I
join
only
Parts
I
and
II.B
of
the
court’s
opinion.
Because
Carpenter
is
entitled
to
qualified
immunity
based
on
the
lack
of
clearly
established
law,
it
is
not
necessary
to
decide
whether
Carpenter
violated
the
Fourth
Amendment.
There
may
be
instances
in
which
it
is
helpful
to
the
development
of
the
law
to
answer
the
underlying
constitutional
question
even
when
the
defendant
prevails
on
qualified
immunity
grounds.
But
this
is
not
such
a
case.
Of
course
“this
is
not
such
a
case.”
It
would
probably
be
difficult-to-impossible
to
find
a
case Trump
appointee
Judge
Bress (he
replaced
Alex
Kozinski)
might
find
worthy
of
establishing
precedent
when
it
comes
to
law
enforcement
and
civil
rights
violations.
Maybe
he’ll
get
to
handle
a
J6
case
(what’s
left
of
them
after
Trump’s
mass
pardoning)
that
may
force
him
to
see
rights-violating
cops
as
being
on
the
wrong
side
of
the
law.
But
today
isn’t
the
day.
As
it
stands
now,
the
DA
gets
to
walk
but
DAs
who
follow
in
his
footsteps
won’t.
That’s
the
only
positive
outcome
of
this
decision
—
yet
another
one
that
lets
cops
and
their
accomplices
know
there’s
almost
nothing
to
fear
when
they
get
sued
for
violating
rights.
Court
Grants
Immunity
To
DA
Who
Shared
Nude
Photos
From
A
Searched
Phone
With
Local
Law
Enforcement
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