Saturday, March 3, 2012

Messerschmidt v. Millender, 132 S.Ct.1288 ( 2012)

Another reversal of the 9th Circuit puts it on track for breaking all previous records.
Shelly Kelly decided to revoke her relationship with one Jerry Brown.  As she was leaving their apartment, he screamed at her, grabbed by the hair, and bit her. She escaped and ran to her car only to find Brown standing in front of the vehicle holding a shotgun. She ducked down, accelerated and escaped again, but only after Brown fired five shots at her.  She reported the assault to law enforcement.
A deputy sheriff did an exhaustive search of records; found Brown to have been convicted of violent felonies; had used firearms; was a gang member.  The deputy filled out a comprehensive affidavit and search warrant of the house where he believed Brown was hiding and requested a search warrant for the gun and other weapons; showed the warrant to his supervisor who approved; approved by a deputy DA, and a magistrate issued the warrant.   Although other occupants were inside the house, the search did reveal either Brown or the shotgun.  He was arrested two days later.
Plaintiff (esate householder) filed a 1983 motion alleging Fourth Amendment violations on grounds the warrant was too broad.  The district court agreed denied qualified immunity to the officers; reversed by the 9th Circuit panel; reversed en banc on grounds the deputy should have known the warrant was too broad in seeking firearms in general, not just the one used by Brown in his assault.
Reversed by the Supreme Court.  The officer submitted a warrant consistent with his information that Brown was a gang member and a user of firearms. Ms. Kelly told him the address where he resided. The officer's supervisor approved the warrant, as did  a deputy DA. A magistrate issued the  warrant.

The lawsuit is frivolous to begin with.  No one was injured prior to, during, or after the search.  No damage occurred inside the property.The officers had the correct address and were authorized by a magistrate to search the apartment. The Fourth Amendment does not require officers to have a law degree.  The affidavit contained abundant information and warranted probable cause to search the apartment. And, said the Supreme Court, a magistrate issued the warrant.  Nothing to show any illegal or negligent conduct during the search.

Apparently the 9th Circuit thinks it should deny qualified immunity to the officers despite the approval of superior officers, a deputy DA and a magistrate.  The officers did nothing unreasonable from the drafting of the affidavit and warrant to the entry and search.  Fortunately the Supreme Court understood this.  

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