Thoughts on Messerschmidt v. Millender
on Nov 29, 2011 at 3:18 pm
On December 5, the Supreme Court will hear oral argument in a Fourth Amendment case, Messerschmidt v. Millender, that concerns the particularity of search warrants and the qualified immunity standard. (Michael Smith previewed the case yesterday for this blog.) In this post, I’ll explain the facts and issues in the case and then offer my thoughts on how I think the Court should rule.
I. The facts
Los Angeles police detective Curt Messerschmidt obtained an arrest warrant and search warrant for Jerry Ray Bowen, who was wanted for a domestic assault with a deadly weapon against his girlfriend, Shelly Kelly. Kelly had tried to leave Bowen, and Bowen had responded with extreme violence when Kelly had called the cops to protect her. As the Ninth Circuit explained:
Bowen appeared and screamed, “I told you to never call the cops on me bitch!” Bowen physically assaulted Kelly and attempted to throw her over the top railing of the second story landing of their residence. Bowen grabbed Kelly, bit her, and tried to drag her by the hair back into their residence. When Kelly resisted by bracing herself against the door, Bowen grabbed both of Kelly’s arms, but Kelly was able to slip out of her shirt and run to her car. Bowen followed seconds later, now holding “a black sawed off shotgun with a pistol grip.” Standing in front of Kelly’s car, Bowen pointed the shotgun at Kelly and shouted, “If you try to leave, I’ll kill you bitch.” Kelly was able to escape by leaning over in her seat and flooring the gas. Bowen jumped out of the way and fired one shot at her, blowing out the front left tire of Kelly’s car. Chasing the car on foot, Bowen fired four more times in Kelly’s direction, missing her each time.
Detective Messerschmidt had considerable experience investigating gang members, and he conducted an “extensive background search” on Bowen using “departmental records, state computer records, and other police agency records.” His investigation revealed that Bowen “has gang ties to the Mona Park Crip gang based on information provided by the victim and the cal-gang data base.” (All quotes from the affidavit.) Detective Messerschmidt also knew, but did not include in the affidavit, that Bowen had a previous criminal record and was on summary probation for spousal battery and driving without a license. The detective obtained an arrest warrant and a search warrant to enter Bowen’s home, which was a home owned by Bowen’s foster mother, Augusta Millender.
The key to the Messerschmidt case is the particularity of the items authorized to be seized in the search warrant. The text of the Fourth Amendment requires that a search warrant must particularly describe the thing to be seized, and Fourth Amendment caselaw requires that there must be probable cause for each of the items to be seized. The items to be seized in the Bowen warrant were the following:
All handguns, rifles, or shotguns of any caliber, or any firearms capable of firing ammunition, or firearms or devices modified or designed to allow it to fire ammunition. All caliber of ammunition, miscellaneous gun parts, gun cleaning kits, holsters which could hold or have held any caliber handgun being sought. Any receipts or paperwork, showing the purchase, ownership, or possession of the handguns being sought. Any firearm for which there is no proof of ownership. Any firearm capable of firing or chambered to fire any caliber ammunition.
Articles of evidence showing street gang membership or affiliation with any Street Gang to include but not limited to any reference to “Mona Park Crips”, including writings or graffiti depicting gang membership, activity or identity. Articles of personal property tending to establish the identity of person in control of the premise or premises. Any photographs or photograph albums depicting persons, vehicles, weapons or locations, which may appear relevant to gang membership, or which may depict the item being sought and or believed to be evidence in the case being investigated on this warrant, or which may depict evidence of criminal activity. Additionally to include any gang indicia that would establish the persons being sought in this warrant, affiliation or membership with the “Mona Park Crips” street gang.
The Detective submitted the warrant for review within both the Sheriff’s office and the District Attorney’s office, and it was approved by both.
The search warrant was then executed, although the search proved almost entirely a flop. The police encountered twelve people at the home, but Bowen was not among them. The police did recover a shotgun and ammunition, but it was not Bowen’s: the shotgun was the personal shotgun of Bowen’s foster mother, Augusta Millender, and the ammo was a box of .45 caliber “American Eagle.” The only other evidence recovered was a letter from Social Services addressed to Bowen. The police arrested Bowen two weeks later at a hotel, where he was discovered hiding under a bed.
II. The civil case
The Millenders filed suit against the officers who were involved in the search, alleging that the search and seizure violated the Fourth Amendment. The district court ruled that the arrest warrant authorizing the entry in the home and search for Bowen was valid, and that ruling was never appealed. Instead, the remaining litigation concerns the scope of the search warrant. Everyone agrees that the police had probable cause to enter and search the home for the sawed-off shotgun that Bowen used to fire at Kelly. But the Millenders claim that the warrant was constitutionally overbroad for permitting the search for seizure of all firearms and all evidence of gang membership, as well. According to the Millenders, these errors are sufficiently obvious that no reasonable officer could have been unaware of them. As a result, they say, qualified immunity should not apply and the officers should be held personally liable.
The Ninth Circuit ruled en banc that the officers could be held personally liable because the warrant violated the Fourth Amendment and qualified immunity didn’t apply. Specifically, the Ninth Circuit held that (1) the warrant was invalid because the probable cause did not extend to all of the items described in the warrant and (2) the officers were not entitled to qualified immunity, because no reasonable officer could have believed that there was probable cause to search for and seize all of the items described in the warrant. The warrant was invalid because there was no probable cause to seize the broad categories listed in the warrant. While there was probable cause to seize Bowen’s sawed-off shotgun, that probable cause did not extend to all firearms. And there was no probable cause to seize gang-related material because Bowen’s threat against Kelly was not gang-related.
The Ninth Circuit’s reasoning for why qualified immunity did not attach was that the error in the warrant was “glaring,” and therefore that any reasonable officer should have spotted it:
[T]he warrant in this case suffered a “glaring deficiency.” Groh, 540 U.S. at 564. Neither it nor the affidavit established probable cause that the broad categories of firearms, firearm-related material, and gang-related material described in the warrant were contraband or evidence of a crime. Moreover, a reasonable officer in the deputies’ position would have been well aware of this deficiency. The affidavit indicated exactly what item was evidence of a crime, the black sawed-off shot-gun with a pistol grip, and reasonable officers would know they could not undertake a general, exploratory search for unrelated items unless they had additional probable cause for those items.
The officers then petitioned for certiorari. Notably, the officers did not ask the Court to evaluate whether the warrant was valid. Instead, they asked the Justices to assess whether qualified immunity should apply, and they then added a second question presented: Should the standard for qualified immunity be “be reconsidered or clarified in light of lower courts’ inability to apply them in accordance with their purpose of deterring police misconduct, resulting in imposition of liability on officers for good faith conduct and improper exclusion of evidence in criminal cases?”
The Court re-listed the case a few times, suggesting a possible dissent from denial of certiorari or a summary reversal. Instead, the Court granted the petition and scheduled the case for oral argument.
III. How I think the Court should rule
I think the Supreme Court should reverse the Ninth Circuit because the Ninth Circuit misapplied the well-established qualified immunity standard. The error in the warrant was hardly glaring: It was actually a rather subtle error. So I think the Court should reverse and hold that qualified immunity should attach. At the same time, I don’t think the Court should depart from the well-established qualified immunity standard in this case.
Let’s start with the nature of the possible error in the warrant. The Ninth Circuit and many of the briefs describe the error as one of probable cause: The briefs debate whether a reasonable officer should have known that there was probable cause as to all the items described in the warrant. But this is generally considered a question of particularity, not probable cause: The question is whether the warrant was as specific as it should have been. Put another way, everyone agrees that there was probable cause to issue the warrant. The nature of the disagreement is a more technical one: whether the warrant should have authorized the search for and seizure of the broad class of items it did, or whether it should have only authorized a search for a narrower class, or just the one shotgun that Bowen used — and, for the qualified immunity issue, whether the error was so glaring that any reasonable officer should have spotted it.
The briefs and materials I found online don’t include the full affidavit — they just talk about it — and it’s a little hard to be precise about the quality of the warrant based on the second-hand reports of the affidavit. (With warrants, as with most things, it helps to have the original sources.) Based on the lower-court opinion and the brief, it sounds to me like the warrant was a little sloppy but the errors were hardly glaring. Detective Messerschmidt had a case of a gang member with a gun who tried to kill someone, and he swore out a valid arrest warrant to arrest him. The Detective also obtained a separate search warrant to search the home incident to the arrest, as he was required to do by Steagald v. United States. When the Detective drafted the warrant, he did what a lot of detectives would do in that scenario: He took standard language to use in warrants to get guns and gang-related information (what those in law enforcement call “go-by”s, as they are standard language to “go by”), and he put them in the warrant. It’s pretty standard stuff, and I’m not surprised that it looked okay to the Detective’s bosses and the Deputy DA.
The Detective’s error was sloppiness in the affidavit, it seems to me: He forgot to tie the pieces together. As best I can tell, he just didn’t fully appreciate the difference between a typical gang-member-with-a-gun case and a case of a shooting and perhaps an attempted murder by someone who happens to be a gang member. Those differences required tweaking the search warrant affidavit so the “go-by” warrant language made sense. For example, the Detective should have said more in the affidavit about Bowen’s criminal past: Bowen was indeed a felon, so possession of any firearm was a crime. He should have added that. Plus, he should have said more in the affidavit about why the evidence of gang-related information would be evidence of a crime; while it would be evidence of some crimes, it wouldn’t be evidence of the shooting/attempted-murder that was used to justify Bowen’s arrest. The affidavit should have made that clear.
While these are errors, in my view they’re relatively subtle errors. They’re the kind of errors that a reasonable police officer might make in good faith, not the kind of glaring errors that are supposed to lead to personal liability. So for that reason, I think the Supreme Court should reverse and hold that qualified immunity attaches.
IV. Why the Court should not depart from existing qualified immunity doctrine — but should feel free to depart from Groh v. Ramirez.
The second “Question Presented” in this case asks if the Court should reconsider or clarify its good-faith/qualified immunity standard. Interestingly, that question gets very little attention in the briefs. The petitioners who asked the Court to decide the question only mention it in their reply brief, and even then only very briefly at the very end (see pages 24-27). The amicus brief by the United States just ignores it. So while the grant on this issue clearly spooked the respondents, who spend a lot of time in their brief trying to make sure the Court won’t change good-faith/qualified immunity doctrine — a serious concern with this Court, which seems eager to take ever-narrower views of Fourth Amendment remedies — it seems to me relatively unlikely that this will be much of a focus.
If so, I think that’s a good thing. There are a number of puzzles with existing qualified immunity doctrine — among them, how and whether an originalist Justice can adhere to such a deferential standard — but I don’t see any justification for expanding the immunity the doctrine presently allows.
One caveat to my prediction is the puzzling case of Groh v. Ramirez. Groh involved a typographical error in a warrant that was discovered after the warrant was executed: It turns out that the officer who obtained the warrant inadvertently filled in the property to be searched in the space on the warrant form where the officer was supposed to list the items to be seized. Writing for a bare majority, Justice Stevens concluded in a remarkably spare fashion that qualified immunity did not apply. A reasonable officer should have spotted the error, Justice Stevens reasoned, because every officer should know that warrants have to be particular. As Justice Kennedy’s very persuasive dissent pointed out, however, this was just the wrong question: The issue was whether a reasonable officer could miss the typo, not whether an officer who spotted the typo could think the warrant was constitutional.
Groh has been widely criticized by academic commentators, and I personally think it was just wrongly decided for the reasons Justice Kennedy explained (and commentators have since echoed). Given that Groh is an outlier in qualified immunity doctrine, it is possible that the current Court might use Messerschmidt to construe Groh very narrowly (as lower courts generally have done), or even perhaps to criticize or overrule it, all in an effort to clarify the qualified immunity standard. It’s hard to know if this might happen, but note that both the author of the five-vote majority opinion (Stevens) and the fifth vote in that case (O’Connor) have since retired.
(Cross-posted at the Volokh Conspiracy)
