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socal2310
07-08-2011, 4:29 PM
I just found this in my "in box" and a google site search didn't turn anything up so...


SCOTUS Grants Review in Firearm Search Warrant Case
The Fourth Amendment guarantees our right to not be subjected to search and seizure under a "general" search warrant (i.e., a warrant not based on probable cause and not particularly describing the place to be searched and the person or thing to be seized).

Firearms are generally lawful to possess, and usually may not be seized without probable cause that a specific firearm was used in a crime. On August 24, 2010, the Ninth Circuit Court of Appeals in Millender v. County of Los Angeles, et al. (07-55518), confirmed that a general search warrant requesting the seizure of “all handguns, rifles or shotguns of any caliber, or any firearms capable of firing ammunition...” was unconstitutional when the police who sought the warrant were aware they were actually searching for just one specific firearm.

The National Rifle Association (NRA) and the California Rifle and Pistol Association Foundation (CRPAF) argued this point in an amicus (friend of the court) brief filed in the Ninth Circuit Court of Appeals on behalf of the Mrs. Millender. A copy of the brief, along with the opinion, other case related briefs, and memorandum analyzing the opinion is posted at http://michellawyers.com/millendervlosangeles.

Following the Ninth Circuit’s Millender decision, defendant County of Los Angeles sought review by the United States Supreme Court. On June 27, 2011, the Supreme Court agreed to review the case, and to address the question of whether law enforcement is entitled to qualified immunity against a civil rights law suit when a judge has signed off on the warrant – even when the officers seized property (i.e. firearms) unrelated to the case (and the specific firearm) they are investigating. The case will be heard by the Supreme Court next year. NRA and CRPAF will weigh-in again through an amicus brief at that time.

Far too often police seize entire firearms collections even when most of those firearms are not alleged as part of any criminal offense. In fact, to get to large gun collections local police even resort to "stinging" gun collectors with enticing too-good-to-be-true firearm deals that often involve grey areas of the law, making inadvertent violations of the law common. Some police are politically motivated to inflate statistics of the number of guns seized in order to justify increased funding for their efforts. These seizures often result in damage to the firearms, and inevitably cost their owners expenses and legal fees to get the firearms back.

The Millender case involved a domestic assault between Mr. Bowen and Mrs. Kelly. Bowen threatened Kelly using a specifically identified sawed-off shotgun. Kelly called the police. Police ran Bowen's record and discovered he was a felon. Police then tracked down an address purported to be Bowen’s residence, and drafted a search warrant that included a request to seize all firearms and ammunition. Police included these general requests despite having a picture of the specific sawed-off shotgun Bowen allegedly used in the assault.

At 5 a.m. the Los Angeles County Sheriff’s Department SWAT team served the warrant at the address of Bowen’s foster mother, Mrs. Millender (law enforcement knew that this was her residence, not Bowen’s). Police broke in through her front security door and a front window. Bowen was not there, but law enforcement nonetheless seized from Mrs. Millender a 12-gauge “Mossberg” shotgun with a wooden stock that looked nothing like the sawed-off shotgun they were after, along with a box of .45 caliber ammunition.

Bowen was found the following day hiding under a bed in a motel.

The District Court held that the police had qualified immunity from the damages sought in the civil rights case because of the supposed validity of the warrant.

The Ninth Circuit Court of Appeals reversed, holding that the warrant was over-broad, especially given law enforcement’s knowledge of the specific firearm Bowen used, and considering the total lack of any gang related evidence. Due to the extreme degree in which the warrant was unconstitutional, the Court of Appeals held that the officers were not entitled to qualified immunity and could be sued for damages for violating the Millenders’ civil rights.

Support the NRA/CRPAF Legal Action Project

Seventeen years ago the NRA and CRPA joined forces to fight local gun bans being written and pushed in California by the gun ban lobby. Their coordinated efforts became the NRA/CRPA "Local Ordinance Project" (LOP) - a statewide campaign to fight ill-conceived local efforts at gun control and educate politicians about available programs to effectively reduce accidents and violence without infringing on law-abiding gun owners’ rights. The NRA/CRPA LOP has had tremendous success in defeating most of these anti-self-defense proposals.

In addition to fighting local gun bans, for decades the NRA has been litigating dozens of cases in California courts to promote the right to self-defense and the Second Amendment. In the post Heller and McDonald legal environment, the NRA and CRPA Foundation have formed the NRA/CRPA Foundation Legal Action Project (LAP), a joint venture to proactively strike down ill-conceived gun control laws and ordinances and advance the rights of firearms owners, specifically in California. Sometimes success is more likely when LAP's litigation efforts are kept low profile so every lawsuit’s details are not always released. To see a partial list of the LAP's recent accomplishments, or to contribute to the NRA or to the NRA / CRPAF LAP and support this and similar Second Amendment cases, visit www.nraila.com and www.crpafoundation.org.

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bwiese
07-08-2011, 4:35 PM
Your CRPA Foundation at work.

IGOTDIRT4U
07-08-2011, 4:50 PM
Damn CRPA and NRA does NOTHING for us Californians...:chris:

safewaysecurity
07-08-2011, 5:11 PM
Would this if ruled in our favor overturn the ruling by the New Mexico SC which was a similar case?

navyinrwanda
07-08-2011, 5:21 PM
This is probably not good news – particularly considering the question presented as accepted by the Court:
This Court has held that police officers who procure and execute warrants later determined invalid are entitled to qualified immunity, and evidence obtained should not be suppressed, so long as the warrant is not “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” United States v. Leon, 468 U.S. 897, 920, 923 (1984); Malley v. Briggs, 475 U.S. 335,341,344-45 (1986). The Questions Presented are:
Under these standards, are officers entitled to qualified immunity where they obtained a facially valid warrant to search for firearms, firearm-related materials, and gang-related items in the residence of a gang member and felon who had threatened to kill his girlfriend and fired a sawed-off shotgun at her, and a district attorney approved the application, no factually on point case law prohibited the search, and the alleged overbreadth in the warrant did not expand the scope of the search?

Should the Malley/Leon standards be reconsidered or clarified in light of lower courts' inability to apply them in accordance with their purpose of deterring police misconduct, resulting in imposition of liability on officers for good faith conduct and improper exclusion of evidence in criminal cases?

socal2310
07-08-2011, 5:41 PM
This is probably not good news – particularly considering the question presented as accepted by the Court:

Unfortunately, given the track record of SCOTUS over the last few years, I fear you may be right. I suspect this is at least partially due to the "tough on crime" conservatism prevalent in much of the rest of the country and no doubt well represented on the supreme court.

Ryan

socal2310
07-08-2011, 5:49 PM
double post

Anchors
07-08-2011, 5:51 PM
This is still a good thing.
How many stories have we read of a guy that had his house raided on a "whatever warrant" and had ALL firearms seized even if nothing else was found.

Chatterbox
07-08-2011, 5:56 PM
Unfortunately, given the track record of SCOTUS over the last few years, I fear you may be right. I suspect this is at least partially due to the "tough on crime" conservatism prevalent in much of the rest of the country and no doubt well represented on the supreme court.

Ryan
Yes, the Roberts has really not been 4th Amendment friendly at all.

yellowfin
07-08-2011, 5:57 PM
The threshold is pretty high to overturn on this when the question is answered generally correctly, right?

bwiese
07-08-2011, 6:12 PM
Remember this is not just an ordinary 4th case, this involves fundamental RKBA rights of the 'nonparticipants' (Mrs. Millender has a Heller-affirmed right to firearms - especially in the home - and LAPD raided it 'for good measure' even though they knew it wasn't Bowen's residence).

anthonyca
07-08-2011, 6:16 PM
Amendment IV
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

http://www.archives.gov/exhibits/charters/bill_of_rights_transcript.html

Isn't it amazing we are even here?

Lulfas
07-08-2011, 6:24 PM
Remember this is not just an ordinary 4th case, this involves fundamental RKBA rights of the 'nonparticipants' (Mrs. Millender has a Heller-affirmed right to firearms - especially in the home - and LAPD raided it 'for good measure' even though they knew it wasn't Bowen's residence).

Is the part about them knowing it wasn't his house in another story? From the article quoted:

The Millender case involved a domestic assault between Mr. Bowen and Mrs. Kelly. Bowen threatened Kelly using a specifically identified sawed-off shotgun. Kelly called the police. Police ran Bowen's record and discovered he was a felon. Police then tracked down an address purported to be Bowen’s residence, and drafted a search warrant that included a request to seize all firearms and ammunition. Police included these general requests despite having a picture of the specific sawed-off shotgun Bowen allegedly used in the assault.

Would seem to be saying that they went to where he was believed to live and seized the guns. Since he was a felon, wouldn't all guns at the house he has access to be evidence to the crime of providing access to a felon/possessing a gun as a felon?

wildhawker
07-08-2011, 6:42 PM
I agree with Navy's assessment.

-Brandon

77bawls
07-08-2011, 6:45 PM
Due to the extreme degree in which the warrant was unconstitutional, the Court of Appeals held that the officers were not entitled to qualified immunity and could be sued for damages for violating the Millenders’ civil rights.


Great now Kalifornia judges are signing unconstitutional warrants. :mad:
So I take it Training Day was non fiction then.

emcon5
07-08-2011, 6:58 PM
Surprisingly, from the sound of things the 9th circuit was balls on. How often does that happen.....:)

safewaysecurity
07-08-2011, 7:01 PM
Great now Kalifornia judges are signing unconstitutional warrants. :mad:
So I take it Training Day was non fiction then.

I was told by a former Police Lieutenant in my area that he has never seen a warrant not approved by a judge and that they are basically rubber stamped.

anthonyca
07-08-2011, 7:53 PM
I was told by a former Police Lieutenant in my area that he has never seen a warrant not approved by a judge and that they are basically rubber stamped.

I have been curious about how many warrants are denied.

That case where a prison guard had his house raided on a statement by a druggie con had me wondering.

dantodd
07-08-2011, 8:13 PM
I don't knows the specifics. If the suit is against the officers who petitioned the court fire the warrant I can see it getting some traction. If against the officers executing the warrant, they were acting in good faith. I wish it would go against the judge who would sign such a warrant but that will NEVER happen.

BigDogatPlay
07-08-2011, 9:14 PM
Emphasis mine.....

Police then tracked down an address purported to be Bowen’s residence, and drafted a search warrant that included a request to seize all firearms and ammunition. Police included these general requests despite having a picture of the specific sawed-off shotgun Bowen allegedly used in the assault.

While I don't disagree that this case has a strong downside potential, the quote above is where the whole thing get's sketchy for LAPD.

- The address was purported how? DMV? Probation or parole records? Huggy Bear said so?

- They could specifically identify exactly the firearm that they sought, but asked permission of the court to seize any and all firearms and ammo. To what purpose?

Search warrants aren't supposed to be blank checks. And SCOTUS has the opportunity to make a strong, pro Amendment Two statement to that effect on this case. I do not see them puncturing qualified immunity on it, but this is a circumstance where clearly the government agencies need some guidance.

I hope the court gives it to them.

htjyang
07-08-2011, 9:39 PM
This is not a 2nd Amendment case, it's a 4th Amendment case. Since the police were acting on a warrant issued by a judge, I'm reasonably certain that qualified immunity will be upheld, probably by a large margin. And then there are the facts that this is an appeal of a decision made by the 9th Circus, the most overturned appellate court in the country. And that Mr. Bowen is not exactly a model citizen.* I'm betting on at least a 6-3 in favor of reversal, with a good chance for a 9-0 shutout.

Personally, I don't think it is wise for the NRA to take on the law enforcement community and certainly not on an immunity question. From a purely practical perspective, the simple reality is that the courts (and arguably legislatures as well) are generally pro-law enforcement. Taking on the law enforcement community and on an immunity question may result in a devastating backlash.

* The following is a description of Mr. Bowen's activities by the 9th Circus:

The victim of the assault, Shelly Kelly, stated that she had a “dating relationship” with the suspect, Bowen. Kelly decided to end the relationship due to Bowen’s violent temper and because Bowen had previously physically assaulted her. Because of Bowen’s violent nature, Kelly asked the Sheriff’s Department to send officers to protect her while she gathered some of her property from the residence that she and Bowen shared. Once the requested officers arrived, Kelly began to move her property to her car. After approximately twenty minutes, the officers received an emergency call and had to leave, saying they would return after they handled the call.

According to Kelly, as soon as the officers left, Bowen appeared and screamed, “I told you to never call the cops on me *****!” Bowen physically assaulted Kelly and attempted to throw her over the top railing of the second story landing of their residence. Bowen grabbed Kelly, bit her, and tried to drag her by the hair back into their residence. When Kelly resisted by bracing herself against the door, Bowen grabbed both of Kelly’s arms, but Kelly was able to slip out of her shirt and run to her car. Bowen followed seconds later, now holding “a black sawed off shotgun with a pistol grip.” Standing in front of Kelly’s car, Bowen pointed the shotgun at Kelly and shouted, “If you try to leave, I’ll kill you *****.” Kelly was able to escape by leaning over in her seat and flooring the gas. Bowen jumped out of the way and fired one shot at her, blowing out the front left tire of Kelly’s car. Chasing the car on foot, Bowen fired four more times in Kelly’s direction, missing her each time.

Shortly after, Kelly located police officers who immediately recognized her as the same person they had been protecting before they left for the emergency call. Kelly reported the shooting, described Bowen’s firearm as a “black sawed off shotgun with a pistol grip,” and gave the officers four photos of Bowen to aid their investigation.

In other words, not exactly the most sympathetic poster boy for a fight for constitutional rights.

Anchors
07-08-2011, 10:03 PM
I was told by a former Police Lieutenant in my area that he has never seen a warrant not approved by a judge and that they are basically rubber stamped.

Wow.

nick
07-08-2011, 10:06 PM
No bueno. Much as I like seeing overzealous public officials properly punished, especially for being very trigger happy with confiscating firearms, the current Supreme court doesn't exactly have a good record on 4th Amendment.

wash
07-08-2011, 10:22 PM
Two questions, how many votes are needed to grant cert. and do we know the vote?

A comment about the detailed description of the incident, the assault happened at the guy's shared residence. That is where he lived but somehow they get an overly broad warrant for his mother's place.

I hope the 9'th circuit decision stands.

htjyang
07-08-2011, 10:27 PM
Two questions, how many votes are needed to grant cert. and do we know the vote?

A comment about the detailed description of the incident, the assault happened at the guy's shared residence. That is where he lived but somehow they get an overly broad warrant for his mother's place.

I hope the 9'th circuit decision stands.

1. 4 votes.
2. No. The speculation here (http://volokh.com/2011/06/27/searches-for-guns-at-the-home-of-a-suspects-family-member-2/) (particularly by DWC) is interesting though I think DWC overlooked the possibility that the Judge Kennedy of 1986 is not the Justice Kennedy of 2011. I think there are also some liberal justices who are unwilling to limit Leon or immunity.
3. Is it out of the realm of possibility that a violent thug like Bowen will have his rabbit holes all stashed with his weapons?

Falconis
07-08-2011, 10:43 PM
1. 4 votes.
2. No. The speculation here (http://volokh.com/2011/06/27/searches-for-guns-at-the-home-of-a-suspects-family-member-2/) (particularly by DWC) is interesting though I think DWC overlooked the possibility that the Judge Kennedy of 1986 is not the Justice Kennedy of 2011. I think there are also some liberal justices who are unwilling to limit Leon or immunity.
3. Is it out of the realm of possibility that a violent thug like Bowen will have his rabbit holes all stashed with his weapons?

And how many times have you heard of parents lying for their children. There are numerous documented cases for both scenarios.

htjyang
07-08-2011, 11:01 PM
And how many times have you heard of parents lying for their children. There are numerous documented cases for both scenarios.

I'm sorry, but where is there any evidence of Bowen's parents lying and what relevance does that have to the dispute at hand?

Anchors
07-09-2011, 12:03 AM
I'm sorry, but where is there any evidence of Bowen's parents lying and what relevance does that have to the dispute at hand?

Exactly.
You should have to have probable cause to believe that the other residence needs to be searched and have to articulate exactly what for.

When they do drug warrants, they usually don't just put "illegal narcotics" because it is too vague. They list "crack", "methamphetamine", "heroin", etc.
Firearms should be no different.

Falconis
07-09-2011, 12:13 AM
I admit I havent read the whole thing yet due to numerous reasons. But to add to your statement of rabbit holes with his stashed weapons, no it is not out of the realm of possibilities and I don't think it's a stretch that his mom would lie for him either if he was using her residence to stash said weapons. I don't know if the issue came up or not, but I was adding to the speculation.

EDIT: I will also state that if the NRA and CRPA are taking up this case, there is probably a hole in the LEA's case that I am not aware of that they intend to drive the proverbial truck through. Like I said, just adding to the speculation on the variables surrounding this case.

htjyang
07-09-2011, 1:50 AM
Obviously what is not probable cause for one is probable cause for another. I happen to think that since the residence belonged to a close relative of Bowen, the search of the residence was justified.

Nor do I see any particular reason to limit the seizure to the specific weapon used to attempt to kill Kelly. Bowen was a threat to public safety. Not only was he someone known to be a gang member, not only did he attempt to murder Kelly, the request for the warrant specifically pointed out the public safety issue:

Second, Messerschmidt believed that “the nature of the crime (Assault with a deadly weapon) goes to show that night service would provide an added element of safety to the community” as well as to those personnel serving the warrant. The affidavit concluded by stating that Messerschmidt “believes that the items sought will be in the possession of Jerry Ray Bowen and the recovery of the weapon could be invaluable in the successful prosecution of the suspect involved in this case, and the curtailment of further crimes being committed.”

- from the 9th Circuit again

So, this is not just a question of apprehending a criminal who attempted to commit a murder. This is also about confiscating his means of committing murder so that even if he was not immediately arrested, his means to endanger the community would be significantly curtailed.

Finally, I still don't know exactly what this speculation about Bowen's mother lying is based upon or why it should have any bearing on the case.

I have great respect for the NRA's work on defending the 2nd Amendment, but the presence of guns in this case is incidental. This is a 4th Amendment case. The 2 questions before the Court have nothing to do with the 2nd Amendment. I'm not sure that the NRA's expertise extends to the 4th Amendment. Even in 2nd Amendment cases, the NRA had its share of defeats. (See, for example, Farmer v. Higgins; 11th Circuit, 1990)

Theseus
07-09-2011, 4:53 AM
This is not a 2nd Amendment case, it's a 4th Amendment case. Since the police were acting on a warrant issued by a judge, I'm reasonably certain that qualified immunity will be upheld, probably by a large margin. And then there are the facts that this is an appeal of a decision made by the 9th Circus, the most overturned appellate court in the country. And that Mr. Bowen is not exactly a model citizen.* I'm betting on at least a 6-3 in favor of reversal, with a good chance for a 9-0 shutout.

Personally, I don't think it is wise for the NRA to take on the law enforcement community and certainly not on an immunity question. From a purely practical perspective, the simple reality is that the courts (and arguably legislatures as well) are generally pro-law enforcement. Taking on the law enforcement community and on an immunity question may result in a devastating backlash.

* The following is a description of Mr. Bowen's activities by the 9th Circus:

In other words, not exactly the most sympathetic poster boy for a fight for constitutional rights.


Obviously what is not probable cause for one is probable cause for another. I happen to think that since the residence belonged to a close relative of Bowen, the search of the residence was justified.

Nor do I see any particular reason to limit the seizure to the specific weapon used to attempt to kill Kelly. Bowen was a threat to public safety. Not only was he someone known to be a gang member, not only did he attempt to murder Kelly, the request for the warrant specifically pointed out the public safety issue:



- from the 9th Circuit again

So, this is not just a question of apprehending a criminal who attempted to commit a murder. This is also about confiscating his means of committing murder so that even if he was not immediately arrested, his means to endanger the community would be significantly curtailed.

Finally, I still don't know exactly what this speculation about Bowen's mother lying is based upon or why it should have any bearing on the case.

I have great respect for the NRA's work on defending the 2nd Amendment, but the presence of guns in this case is incidental. This is a 4th Amendment case. The 2 questions before the Court have nothing to do with the 2nd Amendment. I'm not sure that the NRA's expertise extends to the 4th Amendment. Even in 2nd Amendment cases, the NRA had its share of defeats. (See, for example, Farmer v. Higgins; 11th Circuit, 1990)


I think the NRA needs to stand against ALL abuses LEO or otherwise. To say that they need to step off police is ridiculous. But more important, the issue is, who's guns were they? If they weren't his guns, where is their right to confiscate in the first place?

I have a crackhead for a son, that the Feds are looking for. . . They execute a search warrant and take all my guns, even though I am not a convicted felon. How is that right, just because I have a crackhead for a son?

I think the question will revolve around exactly how far the chain of seizure extends.

htjyang
07-09-2011, 5:20 AM
Interesting. I wasn't aware that NRA stands for National Rifle, Proper Search and Seizure, And Who Knows What Else Association. (Whatever happened to truth in labeling?) It seems to me that if the NRA wishes to expand its mission, it should at least notify its membership first. I suspect some of its LEO members will not wish to belong to an organization dedicated to strip them of their immunity.

I'm reminded of what happened when the ABA went massively pro-criminal. The prosecutors resigned from the ABA en masse, gravely weakening their influence. I'd hate to see something similar happen to the NRA.

socal2310
07-09-2011, 6:16 AM
Interesting. I wasn't aware that NRA stands for National Rifle, Proper Search and Seizure, And Who Knows What Else Association. (Whatever happened to truth in labeling?) It seems to me that if the NRA wishes to expand its mission, it should at least notify its membership first. I suspect some of its LEO members will not wish to belong to an organization dedicated to strip them of their immunity.

I'm reminded of what happened when the ABA went massively pro-criminal. The prosecutors resigned from the ABA en masse, gravely weakening their influence. I'd hate to see something similar happen to the NRA.

Really, so you object to the role the NRA played in getting firearms returned to their rightful owners following Katrina? After all, that was only tangentially 2A related.

An overly broad interpretation of qualified immunity may indeed be a casualty if the case goes the way we want it to, but only in the sense of it being collateral damage. The primary issue the NRA/CRPA want to address is the seizure of firearms based on an overly broad warrant. You will note that they didn't bring this case, they are only filing briefs in support of the plaintiffs. I suspect that they are more concerned with limiting damage to gun owners who remain a target of specious warrants in anti-gun jurisdictions. Like it or not, these people have the same rights as the rest of us even if they have a dirt-bag relative. Be assured that if this case goes against the plaintiffs, the decision will be used to justify seizures against other gun owners with no criminal "color" associated with their cases.

Ryan

Mulay El Raisuli
07-09-2011, 6:17 AM
Two questions, how many votes are needed to grant cert. and do we know the vote?

A comment about the detailed description of the incident, the assault happened at the guy's shared residence. That is where he lived but somehow they get an overly broad warrant for his mother's place.

I hope the 9'th circuit decision stands.


Yup.


In other words, not exactly the most sympathetic poster boy for a fight for constitutional rights.


You should look up Ernesto Miranda some time. Yet, his case still gave us good law.


The Raisuli

socal2310
07-09-2011, 8:48 AM
* The following is a description of Mr. Bowen's activities by the 9th Circus:

...

In other words, not exactly the most sympathetic poster boy for a fight for constitutional rights.

I missed this little gem earlier, you do understand that Mr. Bowen is not a party to the suit don't you?

Incidentally, someone ought to address the chilling effect a negative outcome for the plaintiff might have on the recruitment of foster families. If this had been the family's natural or adopted son, I might have more sympathy for the defendants. I grew up with foster children in the home and knew many other foster families. The majority of teenagers were already proto-criminals - often with no criminal history - by the time they wound up being placed and CPS often wasn't entirely forthcoming about the baggage they carried.

Ryan

scarville
07-09-2011, 8:53 AM
Amendment IV
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

http://www.archives.gov/exhibits/charters/bill_of_rights_transcript.html

Isn't it amazing we are even here?
It Fourth Amendment was good idea. Too bad it didn't last.

The Fourth Amendment has been hung on a cross made with the timber of convoluted legal rationalizations. Its wrists and feet are pinioned by nails forged from Supreme Court decisions heated in the furnace of creative law enforcement interpretation. All that is left now is to break its legs to hasten the end.

tyrist
07-09-2011, 9:11 AM
I was told by a former Police Lieutenant in my area that he has never seen a warrant not approved by a judge and that they are basically rubber stamped.

Well considering how many people review the warrant PRIOR to it's submission to a judge that statement isn't too far off. The Dept would not submit a warrant to a judge unless it was pretty much 100% certain a judge would sign it. The police don't just sit and write up warrants to see what sticks. If you brought a judge a POS warrant what occurs will not be pleasant.

htjyang
07-09-2011, 9:49 AM
Really, so you object to the role the NRA played in getting firearms returned to their rightful owners following Katrina? After all, that was only tangentially 2A related.

An overly broad interpretation of qualified immunity may indeed be a casualty if the case goes the way we want it to, but only in the sense of it being collateral damage. The primary issue the NRA/CRPA want to address is the seizure of firearms based on an overly broad warrant. You will note that they didn't bring this case, they are only filing briefs in support of the plaintiffs. I suspect that they are more concerned with limiting damage to gun owners who remain a target of specious warrants in anti-gun jurisdictions. Like it or not, these people have the same rights as the rest of us even if they have a dirt-bag relative. Be assured that if this case goes against the plaintiffs, the decision will be used to justify seizures against other gun owners with no criminal "color" associated with their cases.

Ryan

I'm not aware that the Hurricane Katrina/New Orleans issue was litigated all the way to the Supreme Court and that it changed LEO immunity throughout the country. This case, however, has the potential to do so.


I missed this little gem earlier, you do understand that Mr. Bowen is not a party to the suit don't you?

Of course, but you might want to read the cert petition (http://sblog.s3.amazonaws.com/wp-content/uploads/2011/05/Cert.-in-Messerschmidt.pdf). Why do you think it led off with Mr. Bowen's criminal activities?

It did so because it intends to argue the public safety angle. Let's not kid ourselves here. This whole incident only happened as a consequence of Bowen's criminality and the petitioner has every intention to remind the Court of that fact.

htjyang
07-09-2011, 9:57 AM
You should look up Ernesto Miranda some time. Yet, his case still gave us good law.The Raisuli

I must respectfully dissent on that point. See the dissent in Dickerson v. US and also here (http://blog.simplejustice.us/2008/12/22/the-full-miranda.aspx). Suffice it to say for now: Some of us are working to slowly chip away at it with the goal of getting rid of Miranda v. Arizona some day. See Maryland v. Shatzer (2010).

eaglemike
07-09-2011, 10:02 AM
I must respectfully dissent on that point. See the dissent in Dickerson v. US and also here (http://blog.simplejustice.us/2008/12/22/the-full-miranda.aspx). Suffice it to say for now: Some of us are working to slowly chip away at it with the goal of getting rid of Miranda v. Arizona some day. See Maryland v. Shatzer (2010).

interesting......

kmrtnsn
07-09-2011, 10:16 AM
Prediction: SCOTUS will overrule the 9thCCA on the immunity issue and find the warrant was not overly broad. They may also tighten or create a balance test for wording in future affidavits.

Quser.619
07-09-2011, 11:41 AM
It did so because it intends to argue the public safety angle. Let's not kid ourselves here. This whole incident only happened as a consequence of Bowen's criminality and the petitioner has every intention to remind the Court of that fact.

Public safety? Seriously? So any other person's illegal activities allow Law Enforcement to confiscate my weapons because I am related to someone who is allegedly armed & dangerous, regardless of whether they live there? In this case, he did not. The weapons were not proven to be his, were not used in the crime he was alleged to have committed & used to justify the warrant in question...

At worst, the police should have temporary held onto the weapons & then returned them to the rightful owner w/ an apology. Best, they should have ascertained that the suspect did not live there & left.

I can see why the CPRA & the NRA are involved. Depending upon the ruling, if my cousin, anywhere in the US, is accused of a felony, I can now expect a SWAT team to knock down my door, take my weapons & keep them? For public safety.

I am more & more grateful my NRA membership each & every day

htjyang
07-09-2011, 11:54 AM
the police should have temporary held onto the weapons & then returned them to the rightful owner w/ an apology.

I concur with this part of your post. Your cousin hypothetical is simply impertinent to the issue at hand considering that Bowen's foster mother lived in the same city where the attempted murder took place. As for your gratitude to the NRA, I wonder whether it will stay intact if the Court ruled to support LEO immunity and further curtail the 4th Amendment. A ruling like that will have profound implications throughout the entire country.

Mulay El Raisuli
07-10-2011, 4:03 AM
I must respectfully dissent on that point. See the dissent in Dickerson v. US and also here (http://blog.simplejustice.us/2008/12/22/the-full-miranda.aspx). Suffice it to say for now: Some of us are working to slowly chip away at it with the goal of getting rid of Miranda v. Arizona some day. See Maryland v. Shatzer (2010).


My point was that Mr. Miranda being a slimeball didn't prevent SCOTUS from making a good ruling. While very interesting, nothing here contradicts that.


The Raisuli

Mulay El Raisuli
07-10-2011, 4:08 AM
I concur with this part of your post. Your cousin hypothetical is simply impertinent to the issue at hand considering that Bowen's foster mother lived in the same city where the attempted murder took place. As for your gratitude to the NRA, I wonder whether it will stay intact if the Court ruled to support LEO immunity and further curtail the 4th Amendment. A ruling like that will have profound implications throughout the entire country.


A legitimate fear. Still, the alternative is to do nothing & watch our rights lowly fade away. Better by far to try to stop the nonsense.


The Raisuli

scarville
07-10-2011, 7:28 AM
Prediction: SCOTUS will overrule the 9thCCA on the immunity issue and find the warrant was not overly broad. They may also tighten or create a balance test for wording in future affidavits.
I predict they will find the warrant too broad but overturn on the qualified immunity because the police were acting in "good faith" or whatever the current legal mumbo-jumbo is.

htjyang
07-10-2011, 10:09 AM
My point was that Mr. Miranda being a slimeball didn't prevent SCOTUS from making a good ruling. While very interesting, nothing here contradicts that.

The Raisuli

You seem to be assuming that there is no difference between the Warren Court and the Roberts Court.

Really? I suspect any number of criminal defense lawyers will tell you that there is a vast gulf of differences between the two. Do you really need me to point out all the cases in recent years to curtail the reach of the 4th Amendment? Who do you think they involve? One convicted criminal after another.

I'm also reminded of Justice O'Connor's concurrence in Payne v. Tennessee:

The State called as a witness Mary Zvolanek, Nicholas' grandmother. Her testimony was brief. She explained that Nicholas cried for his mother and baby sister and could not understand why they didn't come home. I do not doubt that the jurors were moved by this testimony-who would not have been?

- my emphasis

Effectively admitting that she, and quite possibly a few of her colleagues in the majority were indeed affected by victim impact statements.

Or why do you think Justice Thomas went to the trouble of citing the crime of William Thompson at length in order to reject his appeal:

Finally, JUSTICE STEVENS altogether refuses to take into consideration the gruesome nature of the crimes that legitimately lead States to authorize the death penalty and juries to impose it. The facts of this case illustrate the point. On March 30, 1976, petitioner and his codefendant were in a motel room with the victim and another woman. They instructed the women to contact their families to obtain money. The victim made the mistake of promising that she could obtain $200 to $300; she was able to secure only $25. Enraged, petitioner’s codefendant ordered her into the bedroom, removed his chain belt, forced her to undress, and began hitting her in the face while petitioner beat her with the belt. They then rammed a chair leg into her vagina, tearing its inner wall and causing internal bleeding; they repeated the process with a nightstick. Petitioner and his codefendant then tortured her with lit cigarettes and lighters and forced her to eat her sanitary napkin and to lick spilt beer off the floor. All the while, they continued to beat her with the chain belt, the club, and the chair leg. They stopped the attack once to force the victim to again call her mother to ask for money. After the call, petitioner and his codefendant resumed the torture until the victim died. Thompson, 759 So. 2d, at 653–654.*

- Thompson v. McNeil, 08–7369

Nor are these the only examples I can offer. There are plenty more where they came from.

For better or for worse, judges are human and as such, they are affected by human considerations. Some judges pity the criminal languishing behind bars. Other judges consider their victims. Whatever the emphasis, few can truly remain objective.


A legitimate fear. Still, the alternative is to do nothing & watch our rights lowly fade away. Better by far to try to stop the nonsense.

I'm sure some of the defense lawyers who litigated all the way to the Supreme Court on behalf of their criminal clients thought the same way. Again, I hope I don't have to cite all the precedents curtailing the 4th Amendment that they helped bring forth.

yellowfin
07-10-2011, 11:39 AM
Is there a way to civilly challenge and dismantle bad 4th Amendment precedent?

htjyang
07-10-2011, 12:05 PM
Is there a way to civilly challenge and dismantle bad 4th Amendment precedent?

Not that I can think of. The precedents tend to be about criminal law. The closest possibility for civil action is a section 1983 law suit. Even assuming a very sympathetic plaintiff and very serious damage, my understanding of sec. 1983 is that it will allow for recovery of monetary damages but won't touch the precedents. Of course, if such large damages are regularly rewarded, it is possible that might alter police behavior.

The fact remains that significant damage done by wrongful search and seizure remains the exception rather than the rule. Even if we exclude cases like wiretapping and confine this analysis exclusively to actual, physical, police breaking and entering, there must be tens of thousands of such searches a year. A handful of cases of wrongful deaths is not going to convince either the courts or the police that there is any systemic problem. Add to that the clever maneuvering of the district attorney's office (witness how they mooted Pottawattamie County v. McGhee by settling it out of court) and the result is that barring a sea change in the courts, the status quo will prevail.

Southwest Chuck
07-10-2011, 2:01 PM
Is there a way to civilly challenge and dismantle bad 4th Amendment precedent?

This brings a thought to mind. Could congress pass legislation clarifying the 4th, (original intent) or is that stepping out od bounds for them ?

Scarecrow Repair
07-10-2011, 3:15 PM
This brings a thought to mind. Could congress pass legislation clarifying the 4th, (original intent) or is that stepping out od bounds for them ?

Even if they could, and did, it would still be just a law, easily overturned by the next batch of politicians.

donw
07-10-2011, 3:43 PM
This is not a 2nd Amendment case, it's a 4th Amendment case. Since the police were acting on a warrant issued by a judge, I'm reasonably certain that qualified immunity will be upheld, probably by a large margin. And then there are the facts that this is an appeal of a decision made by the 9th Circus, the most overturned appellate court in the country. And that Mr. Bowen is not exactly a model citizen.* I'm betting on at least a 6-3 in favor of reversal, with a good chance for a 9-0 shutout.

Personally, I don't think it is wise for the NRA to take on the law enforcement community and certainly not on an immunity question. From a purely practical perspective, the simple reality is that the courts (and arguably legislatures as well) are generally pro-law enforcement. Taking on the law enforcement community and on an immunity question may result in a devastating backlash.

* The following is a description of Mr. Bowen's activities by the 9th Circus:



In other words, not exactly the most sympathetic poster boy for a fight for constitutional rights.

wow! sounds like Mr. Bowen should be watched very closely. it doesn't appear like you'd want him as your next door neighbor.

LE could always use "Public safety is at stake"...

Southwest Chuck
07-10-2011, 5:50 PM
Even if they could, and did, it would still be just a law, easily overturned by the next batch of politicians.

True, but it could sway jurist prudence and hopefully effect case law while it was still the law there-by making it more permanent, was my thought.

anthonyca
07-10-2011, 5:52 PM
This brings a thought to mind. Could congress pass legislation clarifying the 4th, (original intent) or is that stepping out od bounds for them ?

Patriot Act. :rolleyes:

Mulay El Raisuli
07-11-2011, 6:01 AM
You seem to be assuming that there is no difference between the Warren Court and the Roberts Court.


Nope. Merely pointing out that in spite of all the reasons for judges to find against the Constitution (you listed a few in your response), judges & justices can still do their jobs on occasion.


I'm sure some of the defense lawyers who litigated all the way to the Supreme Court on behalf of their criminal clients thought the same way. Again, I hope I don't have to cite all the precedents curtailing the 4th Amendment that they helped bring forth.


Again, the alternative was to sit & watch this happens slowly. So, far better to fight this. At least then there's a chance of restoring things to the way they should be.


The Raisuli

krucam
12-05-2011, 10:17 AM
Arguments were heard today at the Supreme Court in Messerschmidt v. Millender.

Transcript: http://www.supremecourt.gov/oral_arguments/argument_transcripts/10-704.pdf

ScotusBlog summary: http://www.scotusblog.com/case-files/cases/messerschmidt-v-millender/

Volokh: http://volokh.com/2011/11/28/thoughts-on-messerschmidt-v-millender-a-pending-case-on-search-warrants-and-qualified-immunity/

OleCuss
12-05-2011, 11:15 AM
Thank you for that update.

pointedstick
12-05-2011, 11:16 AM
So far the justices seem extremely skeptical of the plaintiff's counsel Timothy Coates' arguments. …Except for Breyer, who's a snake. What's also hilarious is that, in his testimony, Coates basically admitted that gun control doesn't work:


But I don't think that the gang membership is irrelevant to the investigation in this case. You know, as we note and I think it is fairly recognized, gang members have the means to procure and use weapons beyond that of ordinary people.

HowardW56
12-05-2011, 11:23 AM
So far the justices seem extremely skeptical of the plaintiff's counsel Timothy Coates' arguments. …Except for Breyer, who's a snake. What's also hilarious is that, in his testimony, Coates basically admitted that gun control doesn't work:

But they do seem to take issue with the warrant that was issued...

wash
12-05-2011, 12:43 PM
I think it was wrong for the officers to seek a warrant in a home where they knew he did not live. That's the big problem here.

It should have been clear that Ms. Millender's shotgun belonged to her and was not the crime gun.

I believe that they did have probable cause to look for Mr. Bowen at that address and probably get a warrant to look for his possessions if it appeared that he did actually live there but the officers skipped those first two steps.

Unfortunately it looks like the ninth screwed up the case because the question of if they had probable cause to search Ms. Millender's house is evidently not before the court.

I would still like to see the 9'ths decision upheld because we need all the fourth amendment protections that we can get and officers that abuse those protections should be civilly liable.

Wolverine
12-05-2011, 1:00 PM
Another post over at the Volokh Conspiracy specifically discussing today's oral arguments.

http://volokh.com/2011/12/05/thoughts-on-the-oral-argument-in-messerschmidt-v-millender/

BigDogatPlay
12-05-2011, 3:59 PM
I think it was wrong for the officers to seek a warrant in a home where they knew he did not live. That's the big problem here.

That and the issuance of what was essentially a blank check of a warrant, which is a big problem unto itself.

dantodd
12-05-2011, 4:07 PM
I believe that they did have probable cause to look for Mr. Bowen at that address and probably get a warrant to look for his possessions if it appeared that he did actually live there but the officers skipped those first two steps.

Unfortunately it looks like the ninth screwed up the case because the question of if they had probable cause to search Ms. Millender's house is evidently not before the court.


I think one of us is mistaken about the issue before the court. I was under the impression both sides agree that, as you suggest, the warrant was unconstitutional as written and should have been just for the person of Mr. Bowen and the weapon used in the alleged assault. The question is only whether the officer is protected by qualified immunity or if his error was so grievious that he should be held personally responsible.

BigDogatPlay
12-05-2011, 4:49 PM
I think one of us is mistaken about the issue before the court. I was under the impression both sides agree that, as you suggest, the warrant was unconstitutional as written and should have been just for the person of Mr. Bowen and the weapon used in the alleged assault. The question is only whether the officer is protected by qualified immunity or if his error was so grievious that he should be held personally responsible.

The questions before the court are on the qualified immunity and whether or not the test in Leon needs to be re-examined. The Ninth held, and affirmed en banc that the warrant was "so facially invalid that no reasonable officer could have relied on it, the deputies are not entitled to qualified immunity, and the Millenders can proceed with their § 1983 claim."

The deputies most certainly would like to see that overturned. I think that the two sides agree tacitly that the warrant was a kludge, but differ in degrees... hence the argument on qualified immunity since the Ninth held they had none.

dantodd
12-05-2011, 5:40 PM
The questions before the court are on the qualified immunity and whether or not the test in Leon needs to be re-examined. The Ninth held, and affirmed en banc that the warrant was "so facially invalid that no reasonable officer could have relied on it, the deputies are not entitled to qualified immunity, and the Millenders can proceed with their § 1983 claim."

The deputies most certainly would like to see that overturned. I think that the two sides agree tacitly that the warrant was a kludge, but differ in degrees... hence the argument on qualified immunity since the Ninth held they had none.

That was my understanding.

Meplat
12-05-2011, 5:56 PM
The police don't just sit and write up warrants to see what sticks.

Oh, please! Read the Waco warrant sometime.

Virtygo
12-06-2011, 10:02 AM
That warrant read like a form letter. If everyone is to take he easy way out and regurgitate a form letter, each cog should be personally liable. From the officers that cut and pasted the template, to the superiors that signed off on it. It would be ineffective to blame the establishment, each cog needs to effect change and take personal responsibility.

BigDogatPlay
12-06-2011, 2:51 PM
That warrant read like a form letter.

Hence my reply to Wash farther up the thread.... and the Ninth Circuit agreed both on appeal and en banc. The affidavit and warrant were so overly broad that it was a problem. SCOTUS must agree to a point because they aren't judging it. They are judging whether or not the circumstances that led to the issuance of the warrant meet the test for rejection of qualified immunity.

Remember that the defendant against whom the warrant was targeted isn't party to this case.

Virtygo
12-07-2011, 10:09 PM
So we agree, using the form letter with the words they used either meant that cops were so overly incompetent they deserve no immunity, or they new what they were doing and it's an ethics violation which deserves to be prosecuted. I would go further and make liable the full chain of command.

wash
12-08-2011, 8:22 AM
Maybe I don't understand this but it seems to me when the police officers left out the fact that they knew the suspect didn't live with Ms. Millender, they fooled the judge in to writing a warrant that would have been legal if he did live there.

Then they kept the plaintiffs lawyer from bringing that up.

Cops should know that they can't get a warrant to search a crook's neighbor's house.

That's borderline criminal and absolutely stupid.

Stupid should be expensive for cops just like it is for everyone else.