A Los Angeles sheriff’s detective and his supervisor may have erred in executing a search warrant that lacked probable cause, but they were not “plainly incompetent” so as to be denied qualified immunity. That was the Court’s holding Wednesday in Messerschmidt v. Millender. The Court’s divided ruling declined to make any obvious sweeping revisions to its nearly thirty-year-old jurisprudence regarding immunity for officers who execute warrants lacking probable cause, although Orin Kerr here suggests at least one aspect in which the opinion could prove significant.
Background
The case arose from a search warrant police obtained after Jerry Ray Bowen shot at his ex-girlfriend with a sawed-off shotgun. Detective Curt Messerschmidt searched various public records and prepared an affidavit and warrants to arrest Bowen and search the home of his former foster mother, Augusta Millender, where the ex-girlfriend said he might be hiding. The affidavit sought all working firearms and ammunition, along with items showing Bowen’s gang membership or affiliation. Both the affidavit and the warrant were reviewed by Messerschmidt’s superiors and a deputy district attorney, and then approved by a magistrate. A sheriff’s SWAT team executed the warrant but found neither Bowen nor his gun; instead they seized Ms. Millender’s shotgun and a box of ammunition, both of which she lawfully possessed. Bowen later was arrested elsewhere.
In the resulting Section 1983 action brought by Ms. Millender and other family members, the en banc Ninth Circuit denied qualified immunity to the officers, finding that under Malley v. Briggs (1986), a reasonably well-trained officer would have known that the affidavit and warrant failed to establish probable cause. But in yesterday’s ruling the Court reversed, holding that the officers are entitled to immunity under Malley.
The Court’s opinion
Chief Justice Roberts, in an opinion joined by five other Justices (Scalia, Kennedy, Thomas, Alito, and Breyer, who wrote a short concurrence), held that the officers were entitled to qualified immunity as to both the firearms and gang-related materials sought in the warrant. Regarding the former, the Chief Justice rejected the notion that the officers were limited to seeking only the sawed-off shotgun because it was known to be the one used in the crime. Given all the facts set out in the warrant – including Bowen’s gang membership and his attempted murder in public of someone because she had called the police on him – an officer would not be unreasonable in concluding that the sawed-off shotgun was not the only firearm Bowen owned. Additionally, the fact that California law allows a warrant to be issued for items possessed with the intent to commit a public offense further supported the search for all firearms and firearm-related materials. The Court’s conclusion regarding the firearms was joined by seven Justices, with only Justices Sotomayor and Ginsburg dissenting.
The majority opinion went on to hold the officers were also entitled to immunity for the search for gang-related material, though on that point Justice Kagan parted ways and joined the other two dissenters. Chief Justice Roberts first rejected the notion that the officers were unreasonable in believing that Bowen’s gang membership had anything to do with the crime, dismissing the dissenters’ reliance on the officers’ later deposition testimony as both subjective and beyond the scope of the affidavit and warrant. Notably, in the point Prof. Kerr has discussed, the Court held that an officer would not be unreasonable in thinking that evidence of gang affiliation would “prove helpful in prosecuting him for the attack” on his ex-girlfriend – not only to prove motive in the government’s case-in-chief, but possibly to impeach Bowen or rebut any defenses he might raise, as well. The Court found compelling the fact that the officers sought and obtained approval from a police superior and deputy district attorney, and that a magistrate had approved the warrant. And it criticized the Ninth Circuit’s refusal to credit that conduct, and the lower court’s imposition on the officers of an independent duty to ensure at least a colorable basis for probable cause, as a misreading of Malley.
The Court also distinguished this case from, and arguably limited, its 2004 decision in Groh v. Ramirez, in which a “nonsensical” warrant was so plainly deficient that even a cursory reading would have shown that it failed the Fourth Amendment’s particularity requirement, rendering the cases “not remotely similar.” Summarizing the issue as whether the magistrate here so obviously erred in approving the warrant that the officers should have recognized the error, Chief Justice Roberts affirmed that such situations are “rare,” and that this was not one of them.
Separate opinions
Justice Breyer wrote a one-paragraph concurrence elaborating on why he viewed the firearms search as reasonable. Justice Kagan also concurred in that aspect of the Court’s ruling, but dissented from its conclusion regarding gang-related materials, which she criticized as being based on “elaborate theory-spinning” to tie the attack to Bowen’s gang membership.
In a caustic dissent, Justice Sotomayor (joined by Justice Ginsburg) complained that the warrant was much closer to the general warrants that led to the Fourth Amendment, than the Court was acknowledging. Relying heavily on the officers’ deposition testimony – a practice the majority criticized – the dissent depicted the warrant as a “fishing expedition” and suggested that the opinion undercuts Malley, encourages “sloppy police work” and will turn the Fourth Amendment on its head by immunizing “plainly incompetent police work” merely because others have approved it. “Under the majority’s test,” Justice Sotomayor wrote, “four wrongs apparently make a right.”
Conclusion
In largely sidestepping the second, broader question on which certiorari was granted – whether Malley and its exclusionary-rule corollary, United States v. Leon (1984), should be revised – the Court focused on correcting the Ninth Circuit’s erroneous application of its existing case law. That outcome largely tracks the position the United States advanced as amicus curiae, and does not constitute a sweeping revision of the standards for qualified immunity, or application of the exclusionary rule, when officers execute a warrant that lacks probable cause.
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