The justices of the U.S. Supreme Court are searching for a standard to apply to determine whether qualified immunity protects police who conduct a search on a warrant that was facially valid, but is later invalidated because it was overbroad and pertinent information was misstated or omitted.
The case of Messerschmidt v. Millender stems from a domestic violence incident involving Jerry Bowen and his girlfriend Shelly Kelly. Kelly claimed that Bowen fired several rounds from a sawed-off shotgun at her car as she tried to flee after an argument. The shots blew out a tire on Kelly’s car, but she was uninjured.
Detective Curt Messerschmidt swore out an affidavit for a warrant to search Bowen’s residence. Despite the fact that Messerschmidt knew Bowen’s foster mother Augusta Millender and others also lived in the house, he did not include that information.
The warrant sought to recover the shotgun and any other weapons in the home as well as information about Bowen’s alleged gang activities, despite the fact that the domestic incident was not gang-related.
The warrant and affidavit were approved by Messerschmidt’s supervisors, including the district attorney.
Police conducted a search and recovered weapons belonging to Millender as well as items belonging to the home’s other residents. Neither Bowen nor the sawed-off shotgun was found.
Millender and the other residents filed a §1983 claim against Los Angeles County and the officers, alleging violation of their Fourth and Fourteenth Amendment rights. They argued that the search was unreasonable and relied on an invalid warrant.
A U.S. District Court concluded that the warrant was facially valid, although its authorization to search for weapons of any caliber and gang-related information was overbroad. It rejected the officers’ claim of qualified immunity, holding that their actions were not objectively reasonable.
A three-judge panel of the Ninth Circuit reversed, granting qualified immunity. But a divided en banc panel reversed.
The Supreme Court granted certiorari.
Facially valid warrant
Timothy T. Coates, a partner in the Los Angeles office of Greines, Martin, Stein & Richland, argued on the officers’ behalf that the lower courts failed to give proper weight to the fact that the police acted on facially valid warrant.
“This Court [has set] a very high standard for denying qualified immunity … under circumstances where a police officer has procured a warrant that is subsequently determined to be invalid,” Coates said.
But several justices expressed skepticism with that argument, considering the breadth of the warrant based on Messerschmidt’s affidavit.
“The crime had nothing to do with a gang,” Justice Ruth Bader Ginsburg pointed out. “But this warrant said to search for all gang-related items.”
Coates said that was intended to help tie Bowen, a known gang member, to any weapons found in the residence.
“If they found, for example, a saw-off shotgun and his gang colors with his gang moniker, it would certainly help tie him to the shotgun,” he argued.
But Justice Stephen G. Breyer pointed out that the officer had no reason to believe that gang-related items were in the house based on the incident.
“Why don’t I search the person’s house for an atomic bomb?” he asked. “I have no reason to believe it’s there. But that’s a constitutional search?”
Coates replied that under a “good faith” standard, “I don’t think it’s irrelevant that this guy is a gang member.”
Justice Antonin Scalia interjected.
“The test we have expressed is not good faith,” he said. “This police officer could have been in the best of faith, but if he’s a very bad police officer he’s in the soup, right?”
Chief Justice John G. Roberts Jr. tried to help Coates out.
“You are making the case somewhat harder for yourself,” Roberts said, “because the issue here is whether it was reasonable for him to say, ‘Let me check and see what my superiors say about this,’ and then after that review for him to say, ‘Let’s see what the magistrate thinks about this,’ right?”
“Correct,” Coates said.
Principle Deputy Solicitor General Sri Srinivasan argued as amicus in support of the officers.
“We think if the current test [for qualified immunity] is applied properly, it’s sufficiently protective,” said Srinivasan.
“In this case it was applied in a way that I think is not sufficiently protective.”
‘He’s tried to kill her’
Paul R. Q. Wolfson, a partner in the Washington office of WilmerHale, argued on behalf of Bowen’s foster mother.
“Police officers do not have immunity for seeking a search warrant when the warrant application is so lacking in probable cause as to render [the warrant] unreasonable,” he asserted.
Justice Samuel A. Alito, Jr. wasn’t so sure the case was cut-and-dried.
“Is it the case here that a reasonably well trained officer would understand that this warrant was defective?” Alito asked. “What is wrong with a reasonable officer thinking: ‘He’s tried to kill her in the past using one gun. He’s a member of a gang. He is very likely to possess or have access to other guns’?”
“They certainly don’t have probable cause to believe that any other such gun would be found at the Millenders’ house where innocent people live,” Wolfson replied.
Breyer jumped onto Alito’s point.
“The definition of gang suggests they are likely to have guns, whether it’s illegal to have them or not illegal,” he noted.
Scalia then tried to help Wolfson make his point.
“Is there also probable cause to believe that any gun found in the house will belong to him?” Scalia asked. “I think not.”
“I would say not, Your Honor,” Wolfson agreed.
Justice Sonia Sotomayor asked Wolfson what would happen if “we find that it was reasonable to ask for the guns but not for the gang-related materials? What does that do with your claim?”
“I think at a minimum the record would not permit this Court to resolve that, because we don’t know from the record before us what part of the search was conducted under what part of the warrant,” Wolfson replied.
A decision from the Court is expected later this term.