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Argument preview: How lacking is “so lacking”?

I.       Introduction

When a Los Angeles County SWAT team shattered a picture window and poured into seventy-three-year-old Augusta Millender’s living room in a fruitless predawn search in 2003, glass may have been only the first casualty.  On December 5, the Supreme Court will hear arguments in Messerschmidt v. Millender, Ms. Millender’s civil case against two of the deputies.  Its ruling could significantly alter the court’s jurisprudence regarding qualified immunity for police officers who execute a warrant that later turns out to lack probable cause – case law that has developed into what some have called “the Barney Fife exception” to the Fourth Amendment.

II.      Background

For nearly thirty years, federal courts have looked to a pair of Supreme Court decisions to determine when a police officer will be denied immunity in a civil action, and evidence excluded from a criminal proceeding, because the officer acted upon a warrant that later turned out to lack probable cause.

In United States v. Leon (1984), the Court held that evidence would be excluded only when the Fourth Amendment violation is “substantial and deliberate,” such that the officer could not have procured the warrant in objective good faith.  That would occur only in various limited instances, the Court explained, such as when the affidavit used to obtain the warrant was “so lacking in indicia of probable cause as to render belief in its existence entirely unreasonable.”  Two years later, the court applied Leon in the context of immunity from suit under 42 U.S.C. § 1983 in Malley v. Briggs (1986), extending the “so lacking in indicia of probable cause” standard to qualified immunity.

Under the Malley/Leon test, the relevant question is whether a reasonably well-trained officer in the officer’s position would have known that his affidavit failed to establish probable cause.  Short of that, “all but the plainly incompetent or those who knowingly violate the law” will be granted qualified immunity – the theory being that, because it is the magistrate’s job to ensure that there is probable cause, an officer typically can’t be expected to question that determination.

That was the underlying law in late 2003, when Jerry Ray Bowen tried to throw his girlfriend off a second-story balcony after she broke up with him, then fired several shots at her from his sawed-off shotgun as she sped away with her belongings.  The ex-girlfriend told detective Curt Messerschmidt that Bowen might be hiding out at the Los Angeles home of his foster mother, Ms. Millender.  After searching various public records, Messerschmidt prepared an affidavit and warrants to arrest Bowen for assault with a deadly weapon and search the home.  His affidavit listed two broad categories of items to be seized, including (1) all working firearms, ammunition of any caliber, and receipts or paperwork showing ownership of them; and (2) evidence showing gang membership or affiliation, or tending to establish control of the premises. It also requested night service of the warrant, due to the nature of the assault and Bowen’s suspected affiliation with a local street gang.

The warrants and affidavit were reviewed by Messerschmidt’s superiors, including Sgt. Robert Lawrence, as well as a deputy district attorney, and approved by a magistrate.  A team of sheriff’s deputies executed the warrants in a five a.m. raid, but found neither Bowen nor his gun.  They did, however, seize Ms. Millender’s 12-gauge shotgun and a box of .45-caliber ammunition, both of which she lawfully possessed.

Police later re-interviewed the ex-girlfriend, who told them Bowen might be at an area motel.  Messerschmidt obtained a second warrant and, without SWAT-team assistance, found Bowen hiding under a bed and arrested him.

III.    The lawsuit

Ms. Millender, her daughter, and her grandson sued Detective Messerchmidt and Sgt. Lawrence under Section 1983 for violating their Fourth Amendment rights in the search of their home.  On cross-motions for summary judgment, the district court upheld part of the search warrant, but ruled that its authorization to search for all firearms, firearm-related materials, and gang-related items was unconstitutionally overbroad, and denied the officers immunity.  After a divided panel of the Ninth Circuit reversed and found the officers entitled to immunity, the court granted rehearing en banc, and in August 2010, issued an opinion that reversed the three-judge panel and affirmed the district court.

Applying Malley and Groh v. Ramirez (2004) – in which a five-Justice majority held that a warrant that totally failed to describe the things to be seized was so plainly invalid that law enforcement officials were not entitled to immunity – the en banc court held that Messerschmidt’s search warrant contained a similar glaring deficiency: neither it nor the affidavit established probable cause that the broad categories of firearm- and gang-related materials sought at the Millender home were contraband or evidence of a crime.  In the primary dissent, two judges argued that Malley and Groh should be interpreted to give workable guidelines for line officers, and that Messerschmidt’s mistakes neither put him into Malley‘s area of the plainly incompetent or knowing law-violator nor rendered his actions objectively unreasonable.

The Supreme Court granted certiorari on two issues: whether the warrant was “so lacking in indicia of probable cause” that the officers should be denied qualified immunity, and whether the Malley/Leon standards should be reconsidered or clarified, based on lower courts’ inability to apply them in a way that would deter police misconduct.  (Shortly after certiorari was granted, Ms. Millender passed away.)

IV.    Arguments

The officers point to the Ninth Circuit’s en banc decision itself as proving the need to revisit the “so lacking in indicia of probable cause” inquiry, arguing that the standard is so vague as to be meaningless – the immunity equivalent of “I know it when I see it.”  They argue that the judicial burdens it imposes in re-litigating probable-cause determinations dwarf any minimal deterrent effect on officers, and that the standard should be restricted, if not discarded.

For their part, the Millenders argue that any reasonable officer would have known that the search warrant was so overbroad as to meet Malley‘s standard, because probable cause to search for one specific item (Bowen’s black, sawed-off shotgun with a pistol grip) could not establish probable cause to search for and seize all firearms and firearm-related materials in the house.  They also argue that the officers shouldn’t be allowed to bolster their actions by pointing to information they could have provided the magistrate in obtaining the warrant, but didn’t.

Each side is supported by two amici.  Like the officers, the United States points to the disagreement among various Ninth Circuit judges as to whether the officers acted reasonably in relying on the warrants as proof that they did not violate clearly established law.  Petitioners’ other amici, a group of twenty-six states led by Texas, go even further, arguing that Malley and Leon should be reconsidered or clarified to extend recent caselaw on the exclusionary rule’s good-faith exception – Herring v. United States (2009) and Davis v. United States (2011) – to qualified immunity for defective search warrants.  The states thus argue that officers who violate Fourth Amendment rights while acting on a warrant should receive qualified immunity absent “deliberate, reckless, or grossly negligent” conduct.

Weighing in as an amicus in support of the Millenders, the ACLU argues that Malley effectively balances society’s interest in being free from searches and seizures conducted without probable cause with that of allowing police to reasonably rely on judicial warrants without fearing personal liability.  It likened the broad warrant here to the general warrants and writs of assistance against which the Warrant Clause’s particularity requirement is aimed.

The Millenders’ other amici, the National Rifle Association and California Rifle and Pistol Association Foundation, Inc., pick up on that theme, reviewing the historical record leading to the Fourth Amendment’s adoption and arguing that its particularity requirement was prompted especially by the Crown’s use of general warrants to seize firearms.  The NRA also charges the officers with using Bowen’s gang membership to improperly expand the warrant not only to other persons at the house but to all weapons, in reckless disregard of those individual’s Second Amendment rights.

V.      Analysis

Since Leon, the Court’s cost-benefit analysis in exclusion cases has focused on the flagrancy of the police misconduct – which could be decisive in this immunity case as well.  In two of its more recent applications of Leon, the Court refused to invoke the exclusionary rule absent evidence that officers exhibited deliberate, reckless, or grossly negligent disregard for Fourth Amendment rights.

Thus, in Herring, Chief Justice Roberts, joined by Justices Scalia, Kennedy, Thomas, and Alito, held that Leon‘s cost-benefit analysis did not merit exclusion of evidence obtained in violation of the Fourth Amendment as a result of one-time police negligence – execution of an arrest warrant that police in a neighboring county already had rescinded, unbeknownst to them – on the ground that the deterrent effect would be minimal.  And in Davis, the same five Justices, joined by Justice Kagan and, in a separate concurrence, Justice Sotomayor, extended the good-faith exception to a police search based on objectively reasonable reliance on judicial precedent that later was overturned.  The officers and their amici here seek a similarly expanded zone of protection in the immunity context.

If the Court continues to focus on the flagrancy of the police misconduct, the future of the Malley/Leon “so lacking in indicia of probable cause” standard could rest on who it is a majority of Justices see standing with the SWAT team outside the house on E. 120th Street that morning: one of George III’s customs agents, wielding a general warrant – or the befuddled Deputy Fife.

Recommended Citation: Michael Smith, Argument preview: How lacking is “so lacking”?, SCOTUSblog (Nov. 28, 2011, 2:19 PM),