Tuesday, August 16, 2011

Dougherty v. City of Covina (9th Cir. - August 16, 2011)

Does the fact that a sixth-grade school teacher allegedly looks down his students shirts (and engages in other similarly inappropriate conduct) make it likely that he possesses child pornography?

The Ninth Circuit says "No," but holds that because this wasn't clear, the officers were entitled to qualified immunity.  Judge Brewster, sitting by designation from the Southern District of California, thinks the answer is "Yes."  Regardless, everyone agrees that the officers had qualified immunity.

My guess is that there are lots of people who act inappropriately to their students who nonetheless do not possess kiddie porn.  Probably a majority.  Though surely there's a nontrivial number who do.  The question seems to me to boil down to what "probable" cause means.  As to which I don't think it's sufficient simply for a police officer to say that "based upon his [unnamed] experience and training" an individual probably has kiddie porn if he touches kids inappropriately.  Particularly since I'm quite confident that this "experience and training" contains virtually nothing at all relevant (or even accurate) with respect to this issue.