As per Article Six of the United States Constitution,

... all ... judicial Officers shall be bound by Oath or Affirmation, to support this Constitution ...

(the text is codified in 5 U.S. Code § 3331 - Oath of office).

Does this oath expose the violators to extra punishment compared to ordinary citizens?


Consider the case of Robert and Addie Harte:

Law-abiding tea drinkers and gardeners beware: One visit to a garden store and some loose tea leaves in your trash may subject you to an early-morning, SWAT-style raid, complete with battering ram, bulletproof vests, and assault rifles.

A judge granted a search warrant based on one visit to a garden store and some loose tea leaves in the trash.

This does seem to violate the Fourth Amendment to the United States Constitution:

... no Warrants shall issue, but upon probable cause ...

and tea leaves plus garden store visit does not constitute a "probable cause" (at least, not from the POV of the United States Court of Appeals, Tenth Circuit).

Thus it would seem that the Judge who issued the warrant violated the 4th Amendment and his/her oath of office to protect the same.

It would seem reasonable (to me) to expect that such a judge would be expelled from the bench - why does this never happen? (Absolute immunity, alas, shields the judge from criminal and civil prosecution).

PS. It is alleged that the Police Officers might have lied to the Judge to get the Warrant. Regardless of whether this is true or not, someone has to be fired - either the Officers (who have Qualified immunity) or the Judge. Both swore to uphold the Constitution. They, collectively, did not. If we cannot established who is the guilty party, both should go: this is not a criminal case (both have immunity!), so the burden should be on them to prove that they did the job.

  • In the case you cited, it would help to see the warrant petition to know what knowledge the judge based the issuance of the warrant on. Officers may have told the judge that the leaves were an illicit variety that were later determined to be tea leaves.
    – Ron Beyer
    Jul 11, 2018 at 15:53
  • @RonBeyer: you are right, please see PS.
    – sds
    Jul 11, 2018 at 16:02
  • 1
    "Regardless of whether this is true or not, someone has to be fired" -- This is completely false. The Constitution only bars you from holding office if you rebel against the United States after having sworn that oath.
    – cpast
    Jul 11, 2018 at 16:06
  • 1
    The idea of punishing judges who make bad decisions while acting in good faith is fraught with difficulty. Many (if not most) would argue that such people are being true to their oath. For federal judges who act in bad faith, the constitutional remedy is impeachment and removal from office, and violating the oath of office would certainly be a reasonable charge in the articles of impeachment. Showing that the judge acted in bad faith would of course be difficult in most circumstances.
    – phoog
    Feb 12, 2019 at 18:29

3 Answers 3


From your link (paragraph B):

This time, with only ten days before JCSO's planned press conference on the success of its April 20 raid, the previously innocuous vegetation was considered to be wet marijuana plant material. Burns asserts that he field tested the plant material found on April 10 using a Lynn Peavey KN reagent test kit, and that it was positive for marijuana. However, there is no record of that test because, although Burns thought it good practice to photograph the results of field tests and had done so in other situations in the past, he did not take pictures of the plant material or the KN reagent test results. The deputies needed one more positive trash pull before they could seek a warrant. So, on April 17—with only three days before the pre-planned raid—Burns and Blake conducted one final trash pull from which they found the same green vegetation. They claim that vegetation field tested positive for marijuana, but once again, the officers did not photograph this crucial evidence.

So, a judge was told by two police officers that they had found evidence of marijuana in the Harte's trash, and a warrant was issued on the basis of that.

The issue is not the judge being reckless, the issue is that public officers misguided him in telling that they had "evidence" of marijuana cultivation.

And from the PS, the issue is that of presumption of innocence for the cops1. You should have to prove that they lied about the results of the tests2.

The text explains that the plant material was tested again and it gives a more complicated view of the issue:

The Hartes' retained expert, Michael Bussell, tested the exact same samples—using the exact same type of field test the deputies used—and yet obtained very different results: contrary to the deputies' alleged results, Bussell stated that the tea leaves tested negative for the presence of THC. A jury could reasonably infer from those negative results that Deputy Burns lied about obtaining positive results.

The district court disregarded this hard evidence for three reasons. First, the district court noted that the tea leaves were more than three years old when Bussell tested them. The district court reasoned that this fact undermines Bussell's testing[...]

Next, the district court noted that Bussell obtained a false-positive result when he tested a batch of freshly brewed tea leaves. In the district court's view, this positive result would preclude a reasonable jury from concluding that Deputy Burns lied about obtaining a positive result in 2012. [...]

Finally, the district court points to the test results obtained by JCSO's Crime Laboratory (the Crime Lab). Four months after the April 20 raids, the Crime Lab retested the original tea leaves, using the same field test that the deputies used, and obtained a positive result [...].

It is fair to note that the author of the text objects against the tests exculping the police officers for several reasons, but at the same time it shows that the issue was researched and -even if you believe that the end result was not satisfactory3- it was not just ignored altogether and the officers were indeed tried.

1From the text:

I'm mindful of our precedent indicating that “to survive qualified immunity, a [Franks] plaintiff must make a substantial showing of deliberate falsehood.

2Again from the text:

The second policy at issue is Sheriff Denning's decision to authorize the use of inconclusive field tests with a high false positive rate, [...]

3I have to agree that the whole issue seems to have a rather bad smell.

  • 1
    The test has an extremely high FP rate, it is only good for deciding whether to bring the vegetation to the lab to ensure it's marijuana. A claim that the vegetation is "positive for marijuana" is false (the officers might claim ignorance though). At ant rate someone has to be fired (see PS).
    – sds
    Jul 11, 2018 at 16:14
  • Yes, I just saw your PS and was in the process of editing about it.
    – SJuan76
    Jul 11, 2018 at 16:15
  • presumption of innocence for the cops -- this is not a criminal case. The question may not be innocence but rather competence ;-) but I see your point, alas.
    – sds
    Jul 11, 2018 at 16:17
  • I would say that incompetence should be evaluated by the Police Department (Yes, I do know how that they are not always the most impartial judges...), except in the cases in which it becomes a criminal affair.
    – SJuan76
    Jul 11, 2018 at 16:33
  • 2
    Sorry, but I do not see the relevance. If you believe that the issue here were some false positives and mistakes by the PD, the oath was not broken. If you believe that police officers did manipulate evidence to frame innocent people, they broke the law, independently of the oath.
    – SJuan76
    Jul 11, 2018 at 16:46

Unless the judge knew that the probable cause standard had not been met, but corruptly or maliciously issued the warrant anyway, I don't see that the judge's oath was violated. If the judge believed false testimony from the police, the judge did not violate anything, although the warrant might be overturned by an appeals court, and the police might be liable if intentional falsehood could be proved (very hard to do). If the police ignorantly thought that the test was reliable when it wasn't, and reported it to the judge as reliable, then th finding might be overturned without anyone being liable. it does not at all follow that "At ant rate someone has to be fired".

In general the judicial oath merely reinforces and formalizes the obligation that judges have anyway to follow the Constitution and the laws. A judge who accepts bribes or acts out of blatant prejudice can be disciplined, but one who is merely credulous probably can't be.


For all practical purposes, in its historical context and has it has been applied since 1789 when it was adopted, the oath of office required by the United States Constitution serves the sole purpose of requiring the judge (and other public officials) to agree that the presently constituted government of the United States (rather than, for example, the government of United Kingdom, or the Bible, or Islamic law, or the government of the Confederate States of American, or the courts of some self-proclaimed citizens militia) is the legitimate government of the United States. It is a form of loyalty test.

For example, in the post-Civil War era, requiring the public taking of this oath was a way to undermine the legitimacy of former Confederate officials who wanted to claim that the Confederate government and its laws were still legitimate and had effect.

In terms of enforcement, this simply informs the context in which a judge's legal duties are discerned. We look to the law of U.S. states, subject to federal law subject to the U.S. Constitution as interpreted by the United States Supreme Court, rather than to some other authority.

The oath is not self-executing in the sense of created a private right of action or a new kind of criminal charge other than those already in place via statutes and existing case law.

But, if the judge were to make a ruling on the basis of the constitution of the Confederate States of America, or the Bible, the existence of that oath would be one of the valid ground for reversing that judicial decision on appeal. This action by the judge would probably also for judicial discipline via the judicial ethics process, but would not create a basis to sue the judge or prosecute the judge for a crime.

As the question points out, our system for enforcing civil rights has flaws that have the practical effect of making breaches of constitutional rights unenforceable in some situations. But, the fact that this is true doesn't automatically reform the law to be different. That takes binding court precedents and legislation which don't exist at the moment. The mere fact that someone disagrees with the state of the law for legitimate reasons isn't sufficient to change it in the manner suggested through the oath of office by this question.

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