SCOTUS Grants Review in Firearm Search Warrant Case
San Diego, CA –-(Ammoland.com)- 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 https://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.
CalGunLaws.com is an online research resource designed primarily for use by attorneys and interested firearm owners. CalGunLaws.com strives to provide easy access to and facilitate understanding of the multitude of complex federal, state, and local firearm laws and ordinances, administrative and executive regulations, case law, and past and current litigation that defines the California firearms regulatory scheme in theory and practice. CalGunLaws.com is designed and organized to make it easy to research the law and to locate source materials and related information. All of the articles are cross referenced. Note the two sections on the right: Related Items and Related Law. Related Items will take you to any article related to the one you are currently viewing. Related law takes you to the related law and statutes for the item you are looking at.
It's stunning that the 9th has ruled so conservatively, but then this case is such a sloppy mess. Wonder if SCOTUS will approve of such sloppy police work or just "return the case to a lower court?" The latter sounds better for SCOTUS, but then they've given so much power to the police the cops just expect to cut corners it would seem? Numerous prized gun collections have been merely tossed into the back of a truck too. The only way anything good happens is when cities have to pay and pay out big bucks for the after effects of… Read more »