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.