NRA Joins ACLU in Urging SCOTUS to Let Victims of an Unconstitutional Gun Search Sue the Cops

Early on the morning of November 6, 2003, a SWAT team from the Los Angeles County Sheriff's Department broke into 73-year-old Augusta Millender's home in Hawthorne, turned the place upside down, and confiscated her legally owned shotgun, which she kept for self-defense. The police were looking for Millender's foster son, Jerry Ray Bowen, who was wanted for assaulting his girlfriend, Shelly Kelly. Kelly suggested Bowen might be hiding at Millender's house, although he had not lived there for 15 years. She reported that Bowen had fired a "black sawed-off shotgun with a pistol grip" at her, and she showed police a photo of him posing with it, so they knew it was not the gun they found at Millender's house, which was a black 12-gauge Mossberg with a wooden stock. But their warrant authorized them to seize any and all firearms, rendering it unconstitutionally overbroad. The warrant also authorized the deputies to look for "evidence showing street gang membership," even though there was no reason to believe the assault was gang-related—another Fourth Amendment violation. On Monday the Supreme Court considered whether the sheriff's deputies who sought and executed the warrant, Detective Curt Messerschmidt and Sgt. Robert Lawrence, should have known better.

Generally speaking, police officers can be sued for violating people's "clearly established" constitutional rights. In the context of defective search warrants, the Court has said officers can be held personally liable "only where the warrant application is so lacking in indicia of probable cause as to render official belief in its existence unreasonable." Last year the U.S. Court of Appeals for the 9th Circuit said the warrant application in this case met that test:

The record is devoid of evidence that Bowen possessed guns other than the sawed-off shotgun identified by Kelly or that the broad range of firearms covered by the warrant would be present in the Millenders' residence....We are unable to identify any basis, let alone a "substantial basis," for probable cause to search and seize the broad category of firearm and firearm-related materials set forth in the warrant...

Messerschmidt himself stated he had no reason to believe that Bowen's assault on Kelly was related to gangs, and there is no evidence in the affidavit (or the record) to suggest otherwise. Because the deputies failed to establish any link between gang-related materials and a crime, the warrant authorizing the search and seizure of all gang-related evidence is likewise invalid....

Neither [the warrant] 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 shotgun 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.

During oral argument on Monday, Justice Samuel Alito seemed more inclined to shield Messerschmidt and Lawrence from liability:

There is something very strange about the rule that we are applying here. A warrant was issued by a judge in the Superior Court....That judge, who is a lawyer and was appointed as a judge and presumably has some familiarity with the Fourth Amendment, found that there was probable cause to search for all of these things. And now we are asking whether a reasonable police officer who is not a lawyer and certainly is not a judge should have been able to see that this call that was made by a judge was not only wrong but so wrong that...you couldn't reasonably think that the judge might be correct.

The Court has in fact held that police officers have an independent responsibility to make sure they have probable cause for a warrant and cannot simply rely on a judge's approval to validate their diligence. Alito apparently thinks otherwise.

Both the American Civil Liberties Union and the National Rifle Association are urging the Court to let the lawsuit against Messerschmidt and Lawrence proceed. The NRA's brief sums up the case this way:

[The deputies] had probable cause to search for a specifically identified firearm from a suspect whose whereabouts they were unsure of, but obtained and executed what was facially a general warrant to search the residence of innocent third parties for any and all firearms, knowingly misrepresented the house to be searched as the "residence" of the suspect, and seized the firearm of an occupant which bore no resemblance to the suspect's firearm....A general warrant to confiscate all firearms in a house where several persons reside makes a mockery of the security of person and home protected by the Fourth Amendment. Such a warrant is all the more insidious given that the Second Amendment guarantees the right of the victims of such an intrusion to keep and bear arms.

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  • ||

    I suppose Alito supports allowing Millender to sue the judge, then.

    Either that or he believes the Fourth Amendment's requirement of probable cause for a warrant should be completely unenforceable.

  • Sandman||

    Agreed. If the police violated the 4th amendment, then certainly the judge was part of the conspiracy to do so, and should be held partly (or mostly) liable.

  • ||

    I was thinking the same thing. The Judge who signed that warrant should be liable. I assume a prosecutor or police attorney drew up that warrant too - why not that person too?

  • ||

    God, Alito is such a clueless ass. I guess it just does not occur to him that the judge who signed the warrant perhaps did not read it, or did not think about it carefully. I'm an attorney and when I see cops approach a judge with a warrant, the judge usually signs the damn thing without reading it, esp. if it is a cop the judge knows.

    Really, is it asking too much to want Supreme Court judges who know how the real world works?

  • Sonia Sotomayor||

    I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.

  • ||

    That actually raises a good point. How many of the current justices have ever been criminal defense attorneys? Only a couple have even been prosecutors. And yet they are deciding criminal law issues all the time.

  • Paul||

    I suppose Alito supports allowing Millender to sue the judge, then.

    This was kind of my thought. Alito does have a point, in my opinion, so it seems reasonable that the victims could sue pretty much everyone up the chain.

  • Jake||

    Alito does have a point

    Agreed, though it's probably not the point he thinks he has.

    The cops should have at least some protection, because they are supposed to be able to rely on the judge as a neutral and knowledgeable "third party" whose job is to protect the Rights of citizens by reviewing warrant requests and disapproving any that are not sufficient. If a judge signs a warrant, they have a reasonable basis to believe that their request for the warrant was valid and their probable cause sufficient.

    Judges who sign warrants without bothering to read them, or in spite of any flaws in the affidavit or warrant request, need to be held liable first. Instead, they're never held liable at all.

  • ||

    It sounds to me like what Alito is doing here is deferring to a trial court judge on a matter of law.

    Since when does SCOTUS do that?

    Oh, that's right. They do that if that's what they need to do to get the Right Decision.

  • ||

    Actually, this brings up an interesting question. If you have guns locked in a gun safe, and the authorites come to your house on a warrant like this, do you have to open the gun safe for them? And if so, what are they permitted to do to you if you don't open it?

  • Ann Ticipation||

    do you have to open the gun safe for them?

    And, if so, do you have to open the safe inside that one?

  • ||

    Well if the cops have a signed warrant, they are authorized to search the entire premises indicated. That includes any containers, locked or otherwise, that are big enough to conceal the items in question. So yes, they can ask you to open the safe if they have a warrant to search for something small enough to fit inside it. And if you don't open it they can bust it open themselves.

  • TPTB||

    That includes any containers, locked or otherwise, that are big enough to conceal the items in question.

    Of course, since shotguns can be disassembled, we get to look in your jewelry box as well.

  • Chatroom Crank||

    Which is why one cop I know always made sure something on the warrant was small enough to let him look anywhere he wanted. Usually it called for drugs, but in this case "evidence of gang membership" will work. You know the Crips and Bloods give out class rings.

  • protefeed||

    So yes, they can ask you to open the safe if they have a warrant to search for something small enough to fit inside it.

    Seems like the smart move would be to get a lawyer in the house to watch the cops, and then leave the house, so they can't ask you to open up stuff, or watch your reactions to where they search to see if they are getting closer to finding something.

  • ||

    And when they dynamite the safe in place to be able to search inside it, you will have no recourse for the damage to the room (or the missing roof) because they were simply serving the warrant.

  • Paul||

    Actually, this brings up an interesting question. If you have guns locked in a gun safe, and the authorites come to your house on a warrant like this, do you have to open the gun safe for them? And if so, what are they permitted to do to you if you don't open it?

    A warrant is a warrant. The warrant should describe the items which are the focus of the search, and if those items could reasonably be within the confines of a guns safe, then yes, you're going to have to open up the gun safe.

    If you don't open the gun safe, it would be no different than you not opening your front door for police holding a valid warrant.

    Specifically in the gun safe, they can probably have it removed.

  • Barely Suppressed Rage||

    I've actually been toying with the idea of making hidden compartments in the wall and floor - in between studs and joists is plenty of space for several long guns and hand guns. I have some mad woodwerking skillz, so I would be able to do it and make it pretty much undetectable.

    I might have to do that. Keep one or two in the safe; keep the rest in the hidden storage locker.

    I still would refuse to open the safe and would bolt it down very securely to make it as difficult as possible for anyone to try to take it away. And they're going to have to use a cutting torch to open the fucking thing anyhow.

  • ||

    Yeah then they would come in like James Cann in the heist scene from Thief (best Michael Mann movie by the way). Heavy duty torches, masks, fire extinguishers, etc.

  • Paul||

    Certainly one of his best.

  • Gimlet||

    Do what my brother did with his valuables. He simply put them in between the wall studs of a room he was building and covered them up with sheet rock. No on jacking a house or seving a warrant is going to think of busting open finished walls to look for shit.

  • Paul||

    How does he umm, get to them? And if he doesn't need to get to them, then he's missing out on a fine invention of the 18th century: a safe deposit box.

    Because if his house burns down...

  • Barely Suppressed Rage||

    That makes them pretty inconvenient to get at when you want them, though, doesn't it.

  • ||

    For your SHTF stash, I think that wouldn't be a problem.

    If the SHTF, what's a little busted sheetrock?

  • ||

    Refusing to obey a warrant is a voluntary offense, Rage. It's essentially contempt of court. In other words, you will go to jail and be held there without trial until you decide you want to get out. You get out by complying with the warrant. Yes, this is 100% constitutional.

    I suppose you could try to get the warrant quashed, which would also result in your release, but if you failed to get it quashed, and stayed stubborn, you could spend the rest of your life behind bars, without trial. And that would also be 100% constitutional.

  • Barely Suppressed Rage||

    Which is why I like the hidden compartment idea better. They wouldn't even know it's there, if it's done right. They find the safe with a couple throw-away items in it. The good stuff is in the floor and wall.

  • ||

    What if you claim to have forgotten the combination and lost the key?

  • Paul||

    Then they'll politely remove the safe so it can be cut into back at the station with a torch.

    They're going to get into it, the only question is how much damage and time is it going to take them.

  • jasno||

    Yeah and at the end of it you might have to foot the bill for the cracking.

  • ||

    I remember reading once of just such a case: the guy whose house was being searched had a large safe in his basement for which he couldn't remember the combination. The cops brought in a locksmith to open it, then stuck the homeowner with the bill. I worked as a locksmith when I was in my 20s, so I can tell you firsthand, that shit is expensive.

    Anyway, just an anecdote, but I'm sure no one here has any trouble believing that they'd try to stick you with that sort of bill.

  • TPTB||

    A general warrant to confiscate all firearms in a house where several persons reside makes a mockery of the security of person and home protected by the Fourth Amendment.

    Yeah. Pretty slick, huh?

  • ||

    This case has been covered extensively and with insightful legal commentary at volokh.com

  • ||

    Link 1 and Link 2.

    Note that there's two separate questions here: 1) Was the particular search warrant in question really "fatally flawed," and 2) What should be the extent of qualified immunity, if any?

    You can think that qualified immunity currently goes too far while disagreeing that this particular case's warrant is fatally flawed. That is essentially Orrin Kerr's position, if I read him correctly.

  • DuncePhy||

    Fuck you.

  • ||

    B-bu-but if a judge said it's OK to ransack the house and confiscate stuff, then it must be OK.

  • ||

    The scope of permissibility for these sorts of things ha been so ferociously expanded by judicial dictat that I wouldn't be surprised if they started issuing warrants for general seizure of all property based on, say, a drug CI's word.

  • protefeed||

    Unless the cops being sued personally wrote up the search warrant, I can't see them being sued. The people who wrote the search warrant, and the judge who approved it -- sure, hold them accountable. The officers told to execute the warrant -- no.

  • Barely Suppressed Rage||

    Why, they can't read? They have no obligation to respect the Fourth Amendment and make sure their actions are lawful?

    Fuck that. Everyone in the chain of events who played a role in allowing an unconstitutional search or seizure to occur should be liable for their actions or failure to act, where they should have known better.

  • ||

    That's precisely what I agree with -- these people aren't bag boys at Walmart, but agents of the state operating under the color of, and empowered by the force of, law, and as such, they must be held triply accountable for errors and mistakes. You don't break into somebody's house and ravage their property without extremely good, unequivocal, clearly demonstrable, and valid reasons, and you don't get to say it wasn't your fault. Everybody in the chain is responsible. Everybody.

  • protefeed||

    Hmmm, I stand corrected. After reading their comments, I agree with BSR and RPA.

  • ||

    Ignorance of the law, no matter how obscure or arcane the law, is not a valid excuse for a private citizen who is not a lawyer. Such a citizen who violates any aspect of the law is 100% liable to both criminal and civil penalties.

    So WHY is someone who has sworn an oath of obedience to the law, who is highly educated in proper legal procedures and the law itself, held to such a low standard of knowledge of the law that their ignorance really IS a valid legal defense in court?!?

  • ||

    I'm pretty sure bad things would happen to cops who refuse to take part in a search because they believe it was unconstitutional. So there is a little sympathy in me for the cops executing the warrant.

    I'd be totally OK with suing the people who requested the warrant and the judge who signed off on it. Everyone else in the country is instructed to read everything they sign under severe liability, why not judges.

  • Judges||

    Because we invented absolute immunity to protect ourselves for being sued.

  • T||

    Once again, fuck that. If me and every person who barely graduated high school can be expected and required to refuse to carry out unlawful orders in the military, cops sure as hell can be expected to do so. What, cops are less trustworthy than 18 year old privates?

  • ||

    What, cops are less trustworthy than 18 year old privates?

    This is one of them rhetorical questions, right?

  • ||

    This. The Oathkeepers (an organization for police and military who affirm their duty to disobey illegal orders) is on domestic terrorism watch lists, simply because they refuse to commit crimes. Membership in the group has been used as proof of unfitness to have custody of children in the past.

    Cops who commit crimes are rarely disciplined. When they are, it's usually by being fired, but no disqualifying criminal charges are ever filed. So the cop takes one step over the boundary line to the next town over and gets hired to be a cop there on the spot.

  • ||

    In the context of defective search warrants, the Court has said officers can be held personally liable "only where the warrant application is so lacking in indicia of probable cause as to render official belief in its existence unreasonable."

    That seems like absolute immunity for the cops to me. Alito is right. There's no way the cops would consider the search to be unreasonable when a damn judge signed off on it unless these very same cops lied to that judge to get his/her signature. If they didn't lie to the judge, then (s)he's the unreasonable one who should be sued.

  • ||

    I seriously doubt the courts will ever rule in favor of suing judges for any reason whatsoever.

  • ||

    It's like asking why more lawyers aren't sued for malpractice.

  • cynical||

    We should demand that they all recuse themselves from the case, due to conflict of interest.

  • ||

    "And now we are asking whether a reasonable police officer who is not a lawyer and certainly is not a judge should have been able "

    This is the shit that gets me. Half the time we're told that the police are highly trained and professional and so we should give them a lot of leeway, little oversight, and the benefit of the doubt.

    Then they screw up and we're told that we have no reason to expect the the police be trained even in the *basics* of the job.

  • jasno||

    I think it's the difference between the force we'd like to have and the one we actually have.

  • ||

    Taking Justice Alito's apparent belief to the logical conclusion would lead to the abolition of appeals from the court system.

  • ||

    This brings up a question I have had rolling around in my head.

    Say I have a well concealed entry to an underground storage room for my firearms and also have a gun safe in my upstairs bedroom closet - containing a few cheap guns mostly as a decoy for burglars who break in knowing to look for my guns.

    If the police come to my place looking for guns do I have a legal duty to inform them of the concealed underground stash?

    Another wrinkle - What if I have transferred ownership of the stashed guns to a trust for my sons? I can then legally and truthfully state that I do not own (“own”, not “possess”) any other firearms than the ones they have been shown.

    I'm sure they would call it obstruction of justice - but if their seach was in truth not justified what "justice" have I obstructed?

  • ||

    Not a lawyer, but the 5th admendment would seem to cover not having to direct the police to evidence of your crimes - even if they have a warrant.

  • PicassoIII||

    Well, that 'shoots' one of my fave jokes. "Ask an ACLU Lawyer to count to ten .. I bet they skip 2"

  • Nike Dunk High||

    thanks

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