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Court says police cannot be sued over warrant

Associated Press

WASHINGTON (AP) – The Supreme Court said Wednesday that California police officers cannot be sued because they used a warrant that may have been defective to search a woman’s house.

The high court threw out the lawsuit against Los Angeles County Sheriff’s Detective Curt Messerschmidt and other police officials, who were being sued personally by Augusta Millender for the search on her house and confiscation of her shotgun.

Police were looking for her foster son, Jerry Ray Bowen, who had recently shot at his ex-girlfriend Shelly Kelly with a black sawed-off shotgun. Kelly told police that he might be at his foster mother’s house, so Messerschmidt got a warrant to look for any weapons on the property and gang-related material, since Bowen was supposed to be a member of the Mona Park Crips and the Dodge Park Crips. The detective had his supervisors approve the warrant before submitting to the district attorney and a judge, who also approved the warrant.

Bowen and his shotgun were not found at Millender’s house, but police confiscated the 73-year-old Millender’s shotgun.

The now-deceased Millender sued, saying the warrant was constitutionally overbroad because police had no right to look for any weapon at her house, only the weapon Bowen had used to shoot at his ex-girlfriend. She also argued that the shooting was a domestic incident, so police had no right to look for gang-material at her house.

The 9th U.S. Circuit Court agreed, saying Messerschmidt and other officers should have known the warrant was overbroad and therefore lose the immunity that police normally would be granted against such lawsuits.

The court on a 6-3 vote overturned that decision.

“The officers’ judgment that the scope of the warrant was supported by probable cause may have been mistaken, but it was not `plainly incompetent,” said Chief Justice John Roberts, who wrote the court’s majority opinion. “On top of all this, the fact that the officers sought and obtained approval of the warrant application from a superior and a deputy district attorney before submitting it to a magistrate provides further support for the conclusion that an officer could reasonably have believed that the scope of the warrant was supported by probable cause.”

Justice Sonia Sotomayor, Ruth Bader Ginsburg and Elena Kagan dissented from the majority.

“Qualified immunity properly affords police officers protection so long as they conduct is objectively reasonable,” Sotomayor said. “But it is not objectively reasonable for police investigating a specific, non-gang related assault committed with a particular firearm to search for all evidence related to `any street gang,’ `photographs … which may depict evidence of criminal activity,’ and all firearms.”

In a separate dissent, Kagan pointed out that gang membership does not violate California law, “so the officers could not search for gang paraphilia just to establish Bowen’s ties to the Crips.” Kagan, however, said she did agree with the majority on the police’s decision to look for other weapons besides the one used in the shooting.

The case is Messerschmidt v. Millender 10-704.

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