Metropolitan News-Enterprise


Wednesday, August 25, 2010


Page 1


Court Rejects Deputies’ Immunity Claim Over Pre-Dawn Raid

En Banc Panel, in 8-3 Decision, Says Officers Unreasonably Relied on Flawed Warrant


By STEVEN M. ELLIS, Staff Writer


Los Angeles County sheriff’s deputies should have known better than to rely on a warrant allowing them to seize any evidence of a man’s firearms and gang affiliation when investigating a claim that he assaulted his girlfriend with a single, identified weapon, the Ninth U.S. Circuit Court of Appeals held yesterday.

Reversing a split three-judge panel’s ruling that two deputies were entitled to qualified immunity in a civil rights suit over the pre-dawn raid of the man’s foster mother’s home in 2003, the en banc court ruled 8-3 that portions of the warrant were “so lacking in indicia of probable cause as to render official belief in its existence unreasonable.”

The three-judge panel concluded in May 2009 that Detective Curt Messerschmidt and Sgt. Robert Lawrence could reasonably rely on a prosecutor and a judge to limit the warrant’s scope to items covered by the showing of probable cause, vacating a ruling by U.S. District Judge Dean D. Pregerson of the Central District of California.

District Court Ruling

Pregerson had ruled in favor of Augusta Millender, who filed a 42 U.S.C. § 1983 action claiming that evidence of other firearms owned by her foster son, Jerry Ray Bowen, or of his alleged gang affiliation were irrelevant to the domestic violence charge he faced for allegedly assaulting then-girlfriend Shelly Kelly with a sawed-off shotgun with a pistol grip.

Bowen was charged with attacking Kelly when she attempted to end the relationship and move out. Kelly, who initially summoned sheriff’s deputies to watch while she gathered property from the residence, said Bowen appeared and retrieved the shotgun from the residence after the deputies were called away by an emergency.

She later told Messerschmidt that Bowen ran in front of her car, to which she fled, and pointed the shotgun at her, threatening to kill her if she left. Kelly also said that Bowen jumped out of the way and fired at her after she ducked down and accelerated towards him, and blew out her front tire before firing another four shots as she drove away.

After Kelly gave Messerschmidt a picture of Bowen holding the shotgun, and said he might be staying at Millender’s home, Messerschmidt prepared a search warrant affidavit indicating that Bowen had ties to the Mona Park Crip gang, and seeking authorization to search for and seize all firearms and firearm-related items, and evidence relevant to gang membership.


The warrant was reviewed by Lawrence, a police lieutenant and a deputy district attorney before it was presented to, and signed by, a judge. A SWAT team that served the warrant while Messerschmidt and Lawrence were present did not find Bowen, but seized Millender’s personal shotgun, a letter addressed to Bowen and a box of .45-caliber ammunition.

Bowen was arrested two weeks later, after his wife admitted deputies into a motel room where they found him hiding under the bed.

Millender subsequently sued the county and the deputies, and Pregerson ruled that the warrant was overbroad as to firearms beyond the shotgun used in the assault, and as to gang membership.

On appeal, Judge Consuelo M. Callahan, joined by Senior Judge Ferdinand F. Fernandez, wrote that the deputies could reasonably have thought the disputed warrant provisions were permissible because they could reasonably have expected the prosecutor or the judge to limit the warrant if it exceeded the bounds of probable cause.

But Judge Sandra S. Ikuta dissented that “no reasonably well-trained officer…could have concluded that there was probable cause to search for the wide variety of firearms, firearm accessories, and gang paraphernalia,” a position she again took when writing for the majority on en banc review.

Callahan Dissents

Chief Judge Alex Kozinski, and Judges Pamela Ann Rymer, Susan P. Graber, Raymond C. Fisher, Johnnie B. Rawlinson, Jay S. Bybee and Milan D. Smith Jr. joined Ikuta in her opinion.

Callahan, however, took issue with the majority’s determination that the warrant constitutionally could not provide for the search and seizure of firearms other than Bowen’s sawed-off shotgun, and wrote that the majority’s opinion failed to provide “a workable guide for a line officer.”

She also dissented that the deputies’ reliance on supervisors, the district attorney and the magistrate was reasonable under the circumstances, and predicted that “the majority’s parsing of the search warrant is likely to encourage uncertainty and needless litigation.”

Judges Barry G. Silverman and Richard C. Tallman joined Callahan in part, but Silverman, joined by Tallman, also wrote that the deputies were entitled to immunity for having made “good faith misjudgments and mistakes.”

The case is Millender County of Los Angeles, 07-55518.


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