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Split U.S. High Court Grants Officers Immunity In Defective Warrant Lawsuit

WASHINGTON, D.C. - (Mealey's) Police officers who executed a search warrant that was later found to be defective are nonetheless entitled to qualified immunity in a lawsuit filed by the individuals who were the subject of the search, a split U.S. Supreme Court ruled Feb. 22 (Curt Messerschmidt, et al. v. Brenda Millender, as Executor of the Estate of Augusta Millender, Deceased, et al., No. 10-704, U.S. Sup.).

When Shelly Kelly broke up with her boyfriend, Jerry Bowen, and moved out of her apartment to which Bowen had a key, she feared he may attack her as he had in the past. Kelly asked officers from the Los Angeles County Sheriff's Department to accompany her while she gathered her things. Deputies went with her to the apartment but were called away to respond to an emergency before the move was complete.

As soon as the officers left, Bowen appeared at the bottom of the stairs to the apartment, yelling at Kelly. He then ran up the steps, grabbed Kelly and tried to throw her over the railing. When he was unsuccessful, he bit Kelly on the shoulder and attempted to drag her by her hair. Kelly escaped his grasp and ran to her car. Bowen fired a sawed-off shotgun at Kelly's car as she drove away.

Kelly found an officer and reported the assault. She also told the officer that Bowen was "an active member of the 'Mona Park Crips,'" a local street gang. Detective Curt Messerschmidt investigated the incident. He prepared two warrants: one to authorize Bowen's arrest and one to authorize the search of Bowen's foster mother's home where he was allegedly staying. The search warrants were signed off on and served by a team of officers, including Messerschmidt and Sgt. Robert Lawrence. Inside the home were Augusta Millender (a woman in her 70s), Millender's daughter and Millender's grandson. A shotgun belonging to Augusta Millender, a California Social Services letter addressed to Bowen and a box of .45-caliber ammunition were seized during the search. Bowen was arrested two weeks later by Messerschmidt.

Federal Suit

The Millenders sued the Sheriff's Department, the sheriff and a number of individual officers, including Messerschmidt and Lawrence, in the U.S. District Court for the Central District of California. They alleged that the search warrant was invalid under the Fourth Amendment to the U.S. Constitution and sought damages from Messerschmidt and Lawrence, among others.

The District Court found the warrant defective in two respects and rejected the officers' claim that they were entitled to qualified immunity. Messerschmidt and Lawrence appealed. A divided panel of the Ninth Circuit U.S. Court of Appeals reversed the District Court's denial of qualified immunity. The Ninth Circuit then granted a rehearing en banc, and the majority affirmed the District Court's denial of qualified immunity. Messerschmidt and Lawrence petitioned the U.S. Supreme Court.

Reversing the Ninth Circuit's ruling, the high court majority opined that while the search warrant was indeed defective, the officers were entitled to qualified immunity. "The question in this case is not whether the magistrate erred in believing there was sufficient probable cause to support the scope of the warrant he issued. It is instead whether the magistrate so obviously erred that any reasonable officer would have recognized the error. The occasions on which this standard will be met may be rare, but so too are the circumstance in which it will be appropriate to impose personal liability on a lay officer in the face of judicial approval of his actions. Even if the warrant in this case were invalid, it was not so obviously lacking in probable cause that the officers can be considered 'plainly incompetent' for concluding otherwise," Chief Justice John G. Roberts Jr. wrote for the majority.

Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas, Stephen G. Breyer and Samuel Anthony Alito Jr. joined in the opinion. Justice Breyer also filed a concurring opinion.

Partial Error

Justice Elena Kagan filed an opinion concurring in part and dissenting in part. She agreed with the majority that Messerschmidt and the other officers should receive qualified immunity for their search for firearms. However, she held that the majority erred in finding that a reasonable officer could have found the warrant valid in approving a search for evidence of membership in a street gang. "Membership in even the worst gang does not violate California law, so the officers could not search for gang paraphernalia just to establish Bowen's ties to the Crips. Instead, the police needed probable cause to believe that such items would provide evidence of an actual crime-and as the Court acknowledges . . . the only crime mentioned in the warrant application was the assault on Kelly. . . . Because a reasonable officer would have recognized that defect, I would not award qualified immunity to Messerschmidt and his colleagues for this aspect of their search," Justice Kagan wrote.

In a dissenting opinion, Justice Sonia Sotomayor held qualified that immunity should not be granted. "Qualified immunity properly affords police officers protection so long as their conduct is objectively reasonable. But it is not objectively reasonable for police investigating a specific, non-gang-related assault committed with a particular firearm to search for all evidence related to 'any Street Gang,' 'photographs . . . which may depict evidence of a criminal activity,' and all firearms. The Court reaches as contrary result not because it thinks that these police officers' stated reasons for searching were objectively reasonable, but because it thinks different conclusions might be drawn from the crime scene that reasonably might have led different officers to search for different reasons. That analysis, however, is far removed from qualified immunity's proper focus on whether petitioners acted in an objectively reasonable manner.

"Because petitioners did not, I would affirm the judgment of the Court of Appeals," Justice Sotomayor wrote. Justice Ruth Bader Ginsburg joined in the dissenting opinion.


Timothy T. Coates of Greines, Martin, Stein & Richland in Los Angles represents the petitioners. Robert Mann of Robert Mann & Donald W. Cook in Los Angeles and Paul R.Q. Wolfson of Wilmer, Cutler, Pickering, Hale & Dorr in Washington represent the Millenders.

Stephen P. Halbrook of Fairfax, Va., filed an amicus brief on behalf of the National Rifle Association of America and the California Rifle and Pistol Association Foundation Inc. Texas Solicitor General Jonathan F. Mitchell in Austin, Texas, filed an amicus brief on behalf of Texas, Alabama, Alaska, Arkansas, Colorado, Delaware, Florida, Georgia, Hawaii, Idaho, Indiana, Kansas, Louisiana, Maine, Michigan, Mississippi, Montana, Nebraska, North Dakota, New Mexico, Pennsylvania, Rhode Island, South Dakota, Utah, Wisconsin and Wyoming. Steven R. Shapiro of the American Civil Liberties Union Foundation in New York filed an amicus brief on behalf of the American Civil Liberties Union. U.S. Solicitor General Donald B. Verrilli Jr. in Washington filed an amicus brief on behalf of the United States. 

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