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Comment by dpatru | Hacker News Reader

An unlawful search is illegal. Whether the cop go to jail depends on if they're convicted of a criminal law.

Usually an illegal search is brought up as a defense by the person who was searched and is now being charged with evidence obtained in the search. The issue in these cases is whether the fruits of the illegal search should be used against the person who was searched. (See http://en.wikipedia.org/wiki/Exclusionary_rule)

An illegal search is in all cases a violation of a right and therefore the person who was searched has a legal remedy. This is the basis of the suit by the students against the school (see the pdf at the bottom of the article.)

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An unlawful search is illegal. Whether the cop go to jail depends on if they're convicted of a criminal law.

As far as I'm aware this never happens, or at least I've never heard of it. But then, IANAL.

Not that I disbelieve you, but I'm curious. Can you cite some real-life cases where officers that poked their noses where they ought not have later been prosecuted and actually been punished? My guess is that they'll be protected by qualified immunity. (but then, that immunity probably isn't available in the case at hand)

Anecdote: I have a friend who was handing out pamphlets in front of the post office on Tax Day. He was arrested and later sued for 1st Amendment violations. He won his case against the town, but the prosecution against the officers failed because they thought they were doing the right thing (with no acknowledgment of the fact that their job makes it critical for them to have this knowledge).

Fair enough, I should have been more precise with my language.

Section 1983 says that a violation of a constitutional right gives rise to a civil remedy for damages. A violation of the Fourth Amendment right is such a violation of a constitutional right. If the school officials, being officers of the state, did not comply with the rule in Kyllo, then they would be in violation of the Fourth Amendment, so they could be liable for damages under section 1983.

The officials could defend on the grounds of qualified immunity. However, to win on this defense, the officers must show that the law was not "clearly established." The argument I would make is that Kyllo is clearly established, so qualified immunity would not apply.

The Wikipedia article on section 1983 provides some examples of its uses:

http://en.wikipedia.org/wiki/Section_1983

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