Messerschmidt v. Millender: A New Qualified Immunity Search Warrant Decision
Certiorari Granted in Messerschmidt v. Millender (updated: see below for decision handed down 2-22-12)
This Term the Supreme Court will decide Messerschmidt v. Millender, 131 S. Ct. — (2011)(No. 10-704), granting certiorari in Millender v. County of Los Angeles, 620 F.3d 1016 (9th Cir. 2009)(en banc), which deals with the following Questions Presented:
(1) Whether police officers are entitled to qualified immunity when they obtained a facially valid warrant to search for firearms, firearm-related materials, and gang-related items in the residence of a gang member and felon who had threatened to kill his girlfriend and fired a sawed-off shotgun at her? (2) Whether United States v. Leon, 468 U.S. 897 (1984) and Malley v. Briggs, 475 U.S. 335 (1986), should be reconsidered?
In Messerschmidt, the Ninth Circuit en banc held, with three judges dissenting, that the warrant to search the residence of the plaintiff, the suspect’s foster mother, was overbroad and violated the Fourth Amendment because (1) it covered all firearms, not just the sawed-off shotgun as to which there was probable cause to search the residence, and (2) it covered all articles related to gang membership even though the incidents in question were not gang-related.
Moreover, the defendant police officers were not protected by qualified immunity: the warrant was so facially overbroad and thus invalid that no officer could reasonably rely on it even though the officers had submitted the affidavit to their supervisors and to a deputy district attorney for review, and even though a magistrate had approved the search warrant.
One of the issues in the case is whether the search warrant was indeed facially invalid under the Fourth Amendment, as the Ninth Circuit ruled.
A second issue–and this issue is what probably attracted the Court’s attention–is whether, even if the search warrant was facially invalid under the Fourth Amendment, the police officers were protected by qualified immunity on the ground that a reasonable police officer could have believed that the search warrant was valid.
The Court likely will consider the relevance to qualified immunity of the officers’ submission of the affidavit to their supervisors and to the deputy district attorney as well as the magistrate’s approval of the search warrant. And while “good faith,” apparently as a subjective inquiry, was addressed briefly in the oral argument (PDF), held on December 5, 2011, it is highly unlikely that anything other than the objective qualified immunity test will govern in Messerschmidt.
THIS JUST IN: The Supreme Court, in a 6-3 decision (PDF) handed down on February 22, 2012, only one day after the above was posted, not unexpectedly ruled that the defendants were protected by qualified immunity.
Chief Justice Roberts wrote the opinion in which the Court did not address the validity of the search warrant but nevertheless held that the defendants were not liable for damages under section 1983 because of qualified immunity. The police officers acted objectively reasonably and not in a plainly incompetent manner in light of both the magistrate’s approval of the search warrant and the deputy district attorney’s review of the validity of that warrant.
Justice Sotomayor, joined by Justice Ginsburg, dissented, while Justice Kagan, concurring in part and dissenting in part, agreed with the Court on qualified immunity for the search warrant for firearms but disagreed on qualified immunity for the search warrant for gang-related articles. Justice Breyer briefly concurred.