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Argument recap: Qualified immunity under Malley – sweeping change, or more of the same?

Could the Supreme Court be preparing a major rewrite of its standards governing qualified immunity for police officers who execute a warrant lacking probable cause – or just another garden-variety reversal of the Ninth Circuit?  Monday’s oral argument in Messerschmidt v. Millender yielded no solid answers, but gave glimpses of several possible approaches the Court could take.

Messerschmidt (which I previewed for this blog) arises from a civil action brought against a Los Angeles County sheriff’s detective, Curt Messerschmidt, and his supervisor, over a search they conducted with a warrant that turned out to lack probable cause.  The officers sought to search the home of seventy-three-year-old Augusta Millender for weapons and gang-related materials belonging to her foster son, Jerry Ray Bowen, who was wanted for a violent attack on his ex-girlfriend.  But the ex-girlfriend’s tip that Mr. Bowen might be hiding out at the home turned out to be incorrect, and in a predawn raid by dozens of SWAT officers, the only gun officers found and seized was not the sawed-off shotgun he used to shoot up her car, but another gun lawfully owned by Ms. Millender, along with a box of ammunition and a letter.  Ms. Millender and several family members living at the house sued the officers under 42 U.S.C. § 1983.

The Supreme Court granted certiorari on two issues: whether the en banc Ninth Circuit properly applied Malley v. Briggs (1986) in denying the officers qualified immunity, and whether Malley and United States v. Leon (1984), applying the same standard in suppressing evidence, should be revised.  Under Malley and Leon, officers who obtain a warrant that lacks probable cause are nonetheless granted qualified immunity from civil liability, and evidence is not suppressed, unless a reasonably well-trained officer would have known that the affidavit and warrant failed to establish probable cause.  In other words, “all but the plainly incompetent or those who knowingly violate the law” are protected.

Monday’s argument focused largely on the Ninth Circuit’s application of Malley.  The officers’ counsel, Timothy T. Coates of Los Angeles, was the recipient of an early helpful observation from Chief Justice Roberts, who noted that the supervisors who reviewed the officers’ affidavit were also attorneys.  But the curveballs soon stopped hanging, as several other Justices quickly stepped in to grill Mr. Coates on aspects of the case that are less favorable to his client.

Justice Sotomayor pressed Mr. Coates on the scope of the warrant, which listed two broad categories of items to be seized at the house: all working firearms and ammunition, and evidence showing any gang membership or affiliation, or tending to establish control of the premises.  Pointing to testimony from one of the officers that he knew the assault had nothing to do with Mr. Bowen’s gang membership, Justice Sotomayor likened the sweeping authorization for all gang-related materials to the colonial-era general warrants that prompted the Fourth Amendment’s particularity requirement.  Justice Ginsburg joined in, and both Justices attempted to get Mr. Coates to concede that, under the officers’ position, any time a gang member was suspected of a crime, a warrant could authorize a broad search for anything relating to gangs or guns.  Mr. Coates resisted their efforts to extract that concession, repeatedly trying to tie the warrant’s language to matters relevant to the assault investigation.

Pronouncing himself “troubled” by one officer’s testimony that he had no basis for thinking Mr. Bowen would commit a crime using any gun other than the sawed-off shotgun of which they were already aware, Justice Breyer then asked why the testimony was not evidence of bad faith sufficient to end the immunity inquiry.  When Mr. Coates pointed to a provision of the California Penal Code that allows searches for items that might be possessed with intent to use them in committing another crime, Justice Breyer expressed skepticism: “Why don’t I search the person’s house for an atomic bomb?…[T]hat is a constitutional search?”

Justice Scalia repeatedly observed that issues of good faith were being injected into the inquiry where they had no place under Malley, and noted that the two standards would produce different results for an incompetent but well-meaning officer, who would under Malley would be “in the soup.”  Under questioning from various Justices, Mr. Coates hewed to his position that the broad category of gang-related materials could be used to identify Mr. Bowen and/or tie him to the house, and thus its inclusion in the warrant was not so completely lacking in probable cause as to deprive the officers of qualified immunity.

Arguing as amicus curiae in support of the officers, Principal Deputy Solicitor General Sri Srinivasan told the Court that the “favored practice” of obtaining a warrant is best advanced by letting officers rely on the magistrate’s  probable-cause determination in all but the most narrow circumstances.  Asked by Justice Kagan whether the Court could find that only the portion of the warrant seeking evidence of gang membership ran afoul of Malley, Mr. Srinivasan noted that if those portions did not meaningfully expand the scope of the search beyond permissible bounds, there would be no Fourth Amendment violation – and that they already had passed muster in that regard, explicitly or implicitly, in the lower courts.

Observing that “[t]here is something very strange” about Malley in that it requires a non-lawyer officer to second-guess whether a judge’s probable-cause determination is correct, Justice Alito asked whether there was some way to narrow that rule.  That, in turn, led Justice Scalia to ask whether the Court should simply adopt a good-faith standard.  When Mr. Srinivasan noted that the good-faith component of Leon‘s exclusionary-rule analysis does factor into the immunity inquiry, Justice Scalia complained that such an approach created a “mishmash.” He emphasized that “[h]owever well [the officer] showed his good faith by checking with his superiors…if he made an incompetent decision, it’s incompetent.  And we should not mix the two…..”

Justice Kagan asked directly whether, in the government’s view, Malley‘s test is “sufficiently protective” of officers.  Mr. Srinivasan responded that it was, when applied properly – which the Ninth Circuit had failed to do.

Though brief, the Court’s questioning of the government’s lawyer nonetheless touched on several potential approaches it could eventually take: in addition to affirming, the Court could adopt a good-faith standard instead of (or in addition to) Malley, or leave Malley untouched and hold that the Ninth Circuit erred in applying it.

Counsel for the Millenders, Paul R.Q. Wolfson of Washington, barely finished his one-sentence opening summary of Malley before Chief Justice Roberts pointed out that the Messerschmidt warrant had “a lot more information” backing it up than the one in Malley.  Recounting the officers’ actions in preparing and submitting the affidavit to their supervisors, who were themselves lawyers, and then to a magistrate, the Chief Justice called the second-guessing of such a probable-cause determination “a pretty heavy burden to put on the cop on the beat.”  Mr. Wolfson acknowledged that “in the great majority of cases” officers will retain immunity, but he stressed that they nonetheless must exercise reasonable professional judgment: if a reasonably well-trained officer would not have believed the affidavit established probable cause, immunity should be denied.

Justice Alito asked whether, given the California statute, a reasonably well-trained officer faced with these facts – Mr. Bowen’s firing at his ex-girlfriend, his threat to kill her, his gang membership, the likelihood he owned weapons besides the sawed-off shotgun – would reasonably believe there would be other guns at the house, and that they could be properly seized under the warrant.  He would not, Mr. Wolfson answered, disputing that officers could reasonably make both required probable-cause determinations: that there was another gun, and that it would be found at the home of the Millenders, innocent third parties.  Probing the bounds of that approach, Justice Kennedy asked whether officers searching Mr. Bowen’s own house with a warrant authorizing seizure of one specific gun would be able to seize a second gun they saw.  Mr. Wolfson’s response that they would under the “plain view” doctrine of Horton v. California (1990) drew immediate questioning from Justice Breyer as to how, given Mr. Bowen’s gang membership and the propensity of gang members to own multiple guns, a plaintiff such as the Millenders could show not only that probable cause was lacking, but that the officers were unreasonable in thinking otherwise.

Mr. Wolfson replied that the officers did not have probable cause to think Mr. Bowen “had an arsenal of weapons with him in an innocent third party’s house,” at which point Justice Scalia noted that the warrant not only authorized seizure of all guns, but took the notion of probable cause to suspect a gang member of owning other guns, and impermissibly expanded it to tie Bowen to any gun found in the Millender house.

Chief Justice Roberts at that point tried to steer the discussion back to the Malley standard, noting that the relevant inquiry was not the warrant’s adequacy, but whether the officers were reasonable in relying on its determination of probable cause.  Though the Chief Justice extracted a concession that a deputy district attorney’s approval of the affidavit was “relevant” to the issue, Mr. Wolfson insisted it could not be dispositive.  He noted that district attorneys and officers “are on the same crime-fighting team,” and there is no indication whether the former provided truly independent review, or how she viewed the affidavit in terms of meeting legal requirements.

Justice Sotomayor then returned to the idea on which Justice Kagan had earlier pressed Mr. Srinivasan:  whether immunity could be extended to the search for guns, but not to gang-related materials – a line of questioning possibly reflective of the fact that the Millenders’ odd-couple amici curiae are the NRA and the ACLU.  Mr. Wolfson pointed out that while several circuit courts of appeals have wrestled with the “severance doctrine,” the Supreme Court has never endorsed it, and in any event, the record was insufficient to say whether it would apply.  At that point Justice Alito pressed the case that even searching for material relating to gangs and/or Mr. Bowen’s control of the premises was reasonable, since discovery of the sawed-off shotgun at the Millender house would make such evidence relevant to trial efforts to link him to it.  Mr. Wolfson noted that even the officers did not try to make that use of the gang-related portion of the warrant, and that doing so now would be impermissible post hoc rationalization.  Later, he used a friendly observation from Justice Ginsburg as a springboard to describing the case as being “in the heartland of what the Fourth Amendment is concerned about” and “exactly the kind of case the Framers were concerned about when they abolished the general warrant.”

In his short rebuttal, Mr. Coates discounted the suggestion that the plain-view doctrine could apply to protect the officers’ actions, noting that immunity was supported by the judicial preference for encouraging officers to obtain a warrant, rather than rely on exceptions to the warrant requirement.  He countered Justice Scalia’s assertion that the warrant improperly extended to any gun in the Millender house by pointing out that the lower courts assumed Mr. Bowen was a resident of the house – which, coupled with his gang membership, extended probable cause to any gun in the house.  Mr. Coates closed by reiterating the high standard of Malley, and arguing that the officers’ actions in obtaining judicial approval did not violate it.

The Court is expected to issue its ruling by late June.

Recommended Citation: Michael Smith, Argument recap: Qualified immunity under Malley – sweeping change, or more of the same?, SCOTUSblog (Dec. 8, 2011, 12:00 PM),