I don’t wish to monopolize the judicial role in these discussions, but if I’m sitting in the motions part this afternoon, I will certainly give my take.
Paladin Miko Miyazaki is a law enforcement officer, a state actor with respect to the Fourth Amendment’s prohibitions against search and seizure. The spell “Detect Evil,” and other similar spells reveal the “alignment” of a person; such alignment is typically one of “Good,” “Evil,” or “Neutral,” in combination with one of “Lawful,” Chaotic," or “Neutral.” Respondant Bitterleaf asked for and received a temporary restraining order barring any continued use of any such “Detect Evil” spell against him.
The Commonwealth appeals this order and asks this court to set aside the temporary restraining order.
Unfortunately, the record below is devoid of detailed factual findings. The court below evidently found that as a matter of law, respondant was entitled to an expectation of privacy which the use of this spell breached, but the record does not reflect the factual findings the court made in support of this conclusion. On appeal, we treat the lower court’s factual findings with great deference, and will overturn such findings only when they are clearly incredible or made manifestly without support in the record. We will resolve all factual inconsistencies in favor of the party prevailing below. However, we will review the court’s conclusion of law de novo - that is, anew, without any particular deference being applied.
Because this is a temporary restraining order, and not a trial on the merits of the claim, the party seeking the restraining order must generally show both a substantial likelihood of success on the merits of his claim, and irreparable harm if the conduct is not restrained.
The first question that must be answered is: as a matter of law, is a the expectation of privacy as to a person’s “alignment” something that society is prepared to recognize as reasonable. This is a mixed question of fact and law, but on the admittedly brief record here we are not prepared to say that the court below offered a decision that was unreasonable. Alignment is not immediately apparent to the casual observer, and a person may wish to conceal his alignment for a score of reason that have nothing to do with legal guilt or innocence. Indeed, our legal system punishes actions, not tendencies, and it is well settled that an “Evil” alignment does not compel a person to act in conformity thereiwth at all times, any more than a “Good” alignment compels saintly behavior at all times. Social opprobrium may well result from the revelation that a companion has a particular alignment; financial or employment opportunities may be lost. For these reasons, alignment is a personal characteristic that should be private, and society is prepared to recognize it as such. A spell which reveals alignment therefore implicates the Fourth Amendment.
On the other hand, the revelation of alignment is not the result of a tremendously intrusive physical search. There is no detention required. The law enforcement officer merely casts a brief, directed spell, one which does no damage and reveals only the presence of evil in the alignment. We believe this is analogous to the brief investigatory detention of the type authorized by Terry v. Ohio. A Terry stop may not be occasioned on a mere hunch or inchoate suspicion, but may be performed when the law enforcement officer can point to specific, articulable facts that give rise to a reasonable, articulable suspicion of wrongdoing.
We therefore believe that the interests of justice are best served by modifying the terms of the restraining order sua sponte. Appellant Commonwealth and Paladin Miko Miyazaki are enjoined from using the “Detect Evil” or variations thereof al will. However, if appellants can show a reasonable, articulable suspicion of criminal activity, they have laid sufficient foundation to justify the use of the spell. We believe that respondants will have a substantial likelihood of success on the merits of their claim with that limitation imposed, and have shown they will suffer irreparable harm if appellants are permitted to continue casting this spell without any indicia of suspicion.
