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Mar 2012
Déjà vu for the 9th Circuit
LAPPL Board of Directors

It’s shaping up to be another tough year for the U.S. 9th Circuit Court of Appeals. After being reversed by the U.S. Supreme Court in 19 out of the 26 cases it reviewed in 2011, the trend appears to continue in 2012 to the benefit of police.

Last month, the Supreme Court threw out yet another 9th Circuit decision. This time the high court ruled that California officers could not be sued over using a possibly defective warrant to search a home. The case involved L.A. County Sheriff’s Detective Curt Messerschmidt and other police officials who were sued by Augusta Millender for the search on her house and confiscation of her shotgun.

According to reports, police were looking for her foster son, Jerry Ray Bowen, who had recently shot at ex-girlfriend Shelly Kelly with a sawed-off shotgun. Kelly told police Bowen might be at his foster mother’s house, so Messerschmidt obtained a warrant to look for any weapons and gang-related material on the property (Bowen was a suspected member of two local gangs). The detective’s supervisors, the district attorney and a judge all approved the warrant.

Neither Bowen nor his shotgun were found at Millender’s house, but police confiscated a shotgun belonging to the now deceased 73-year-old Millender. She sued, claiming the warrant was constitutionally overbroad because police had no right to look for any weapon at her house other than the one Bowen had used to shoot at his ex-girlfriend. Millender also argued that because the shooting was a domestic incident, police had no right to look for gang-material at her house. The U.S. 9th Circuit Court agreed, saying Messerschmidt and other officers should have known the warrant was overbroad and would therefore lose the immunity that police are normally granted against such lawsuits.

The Supreme Court overturned that decision on a 6-3 vote. This latest rebuke of the 9th Circuit came only one month after it was overruled in a case involving Burbank police officers responding to a reported rumor of a student threatening a school shooting.

Our judicial system of checks and balances is worthy of admiration and respect, especially in its ability to uphold the rights of law enforcement professions to carry out their job while safeguarding citizens' rights. We are grateful to the U.S. Supreme Court for another decision that recognizes the challenging and demanding work police officers in America face every day.

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