The path from a federal government of limited powers to today’s leviathan is littered with familiar mileposts: the Seventeenth Amendment’s removal from state legislatures of the power to appoint senators; Wickard v. Filburn‘s blessing of the modern regulatory state; Chief Justice Roberts’s discovery within the Affordable Care Act of a “tax” that even its proponent-in-chief disavowed.
A Los Angeles sheriff’s detective and his supervisor may have erred in executing a search warrant that lacked probable cause, but they were not “plainly incompetent” so as to be denied qualified immunity. That was the Court’s holding Wednesday in Messerschmidt v. Millender.
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?
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.