SCOTUS Grants cert. for Millender v. Los Angeles

[scarville]

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]

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:

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]

Is there a way to civilly challenge and dismantle bad 4th Amendment precedent?

[htjyang]

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]

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]

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]

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]

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]

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.

[Mulay El Raisuli]

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]

Arguments were heard today at the Supreme Court in Messerschmidt v. Millender.

Transcript: http://www.supremecourt.gov/oral_arg...pts/10-704.pdf

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

Volokh: http://volokh.com/2011/11/28/thought...fied-immunity/

[OleCuss]

Thank you for that update.

[pointedstick]

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]

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

[wash]

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.