Loading ...
Sorry, an error occurred while loading the content.

Fw: [Volokh] Eugene Volokh: Searches for Guns at the Home of a Suspect's Family Member

Expand Messages
  • Jon Roland
    This is an interesting case from several standpoints. It provides a good lesson in current judicial doctrine on the Fourth Amendment. The issue was only about
    Message 1 of 1 , May 11 9:49 AM
    • 0 Attachment
      This is an interesting case from several standpoints. It provides a good lesson in current judicial doctrine on the Fourth Amendment. The issue was only about whether two officers were personally liable for damages. The trial court decided against the other defendants, including the County of Los Angeles, and that decision was not affected by this one.

      -------- Original Message --------
      Posted by Eugene Volokh:
      Searches for Guns at the Home of a Suspect's Family Member:
      http://volokh.com/archives/archive_2009_05_10-2009_05_16.shtml#1242058319
      
      
         Bowen was a felon and likely a gang member who had apparently
         committed a serious gun crime (shooting at the car of his girlfriend,
         who was leaving him, with a sawed-off shotgun). The police heard that
         Bowen "might be staying at his foster mother's home." They therefore
         got a warrant to search the foster mother's (Augusta Millender's) home
         for, among other things, "all firearms and firearm-related items."
      
         When they searched the house, they didn't find Bowen or the gun with
         which he had committed the crime, but they did find and seize "Mrs.
         Millender's personal shotgun ... and a box of 45-caliber ammunition."
         Mrs. Millender and the family members with whom she was living (her
         daughter and her grandson) sued, claiming the search violated the
         Fourth Amendment. The case eventually ended up before the Ninth
         Circuit, as Millender v. County of Los Angeles, decided last
         Wednesday.
      
         Judge Callahan, writing for herself and for Judge Fernandez, held that
         the defendant police officers were shielded by qualified immunity
         because the search was authorized by the warrant, and that this would
         be so even if the warrant was unconstitutionally overbroad. Judge
         Callahan did not express a view on whether the warrant was indeed
         overbroad.
      
         Judge Fernandez concurred in the majority opinion, agreeing that the
         officers were shielded by qualified immunity because of the warrant,
         but concluded that the search was indeed unconstitutional. In this
         case, he concluded, there was "extremely little support for the search
         of a third person's home for all firearms and ammunition" (even though
         the officers thought Bowen was staying at the house, and therefore it
         was "Bowen's home also").
      
         Judge Ikuta dissented, concluding that "no officer of reasonable
         competence could have thought [the] affidavit established probable
         cause to search for the items listed in the warrant," and that
         therefore the officers couldn't claim qualified immunity. Judge Ikuta
         also briefly cited D.C. v. Heller, though only in passing, and
         following a clause that said, "Mere possession of firearms is not,
         generally speaking, a crime."
      
         A very interesting case, and much worth reading if you're interested
         in searches and seizures as they affect innocent third parties, if
         you're interested in gun rights, or if you're interested in both.
      
      References
      
         1. http://www.ca9.uscourts.gov/datastore/opinions/2009/05/05/07-55518.pdf
      
      _______________________________________________
      Volokh mailing list
      Volokh@...
      http://lists.powerblogs.com/cgi-bin/mailman/listinfo/volokh
      
      

      -- 
      
      -------------------------------------------------------------------
      Constitution Society 2900 W Anderson Ln C-200-322, Austin, TX 78757
      512/299-5001    www.constitution.org    jon.roland@...
      -------------------------------------------------------------------
      
    Your message has been successfully submitted and would be delivered to recipients shortly.