Metropolitan News-Enterprise


Monday, November 4, 2013


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Ninth Circuit Finds Qualified Immunity in Search-and-Seizure Suit

Panel, Reversing Trial Judge, Says High Court Ruling Broadly Protects Officers Who Rely on Warrants


By a MetNews Staff Writer


Police are entitled to a broad shield of qualified immunity, protecting them from liability in a case which alleged Fourth Amendment privacy violations stemming from faulty search warrants, the Ninth U.S. Court of Appeals ruled Friday.

The court ordered dismissal of an Alaska man’s suit charging police officers with illegally eavesdropping on his phone calls, pursuant to an invalid warrant, and using the illegally obtained evidence to justify his arrest and further searches.

Senior Judge Andrew Kleinfeld, citing Messerschmidt v. Millender (2012), 132 S. Ct. 1235, said police are entitled to qualified immunity even for a search and arrest based on invalid warrants if they have a “reasonable belief that the warrant was supported by probable cause.”

The plaintiff, Jared Armstrong, was arrested on charges of disseminating indecent material to minors. Parents of a 14-year-old boy complained to police that Armstrong had been instant-messaging their son about sexual acts and had given him a copy of a book entitled Satan Burger that they felt was pornographic.

Satan Burger

The cover of Satan Burger featured an image of a naked buttocks squatting over a dinner plate and contained a passage that the court described as “bizarre,” involving “a nightmarish sexual encounter between a man and some sort of female alien creature who injures and kills people.”

Based on the allegations of the parents of two minor boys, plus a four-page excerpt of the Satan Burger book that was provided to them, Alaskan police obtained a warrant to record conversations between Armstrong and the boys’ fathers. The recorded conversations led to subsequent search and arrest warrants for Armstrong which unearthed hundreds of images involving child pornography on his computer.

Armstrong was then charged with possession of child pornography.

His criminal case was dropped after a state trial judge granted a motion to suppress all evidence, concluding that, since neither the police officer nor issuing magistrate had read Satan Burger as a whole, there was no probable cause to support the original warrant to record Armstrong’s phone calls on the suspicion that he had been distributing indecent material to minors.

Pro Se Action

The judge ruled that all subsequent warrants were based on the first tainted warrant, which thus precluded the use of the gathered evidence. After the ruling, Armstrong filed a pro se action charging six police officers involved in his case with unlawful searches and seizures in violation of his Fourth Amendment rights.

U.S. District Judge Timothy M. Burgess of the District of Alaska found Armstrong’s pro se complaint deficient, but said he could amend it to sue the officers in their personal capacities. Burgess reasoned that a trier of fact could reasonably conclude that a reasonable officer would know that the affidavits did not establish probable cause that Satan Burger was obscene when examined “as a whole.”

But Kleinfeld said the officers were protected by qualified immunity in light of the fact that they “subjected every step” of their investigation “to evaluation both by prosecutors and by neutral judicial officials before they acted.”

‘Proof’ Not Needed

The judge explained that “all that is needed for a search or arrest warrant is probable cause, not proof, that giving the material to a minor would amount to a violation of the Anchorage ordinance” making it illegal to furnish obscene materials to a minor.

The case was originally argued in the Ninth Circuit in July 2011, but the panel delayed its decision in order to await the outcome of Messerschmidt.  The Supreme Court there overturned the Ninth Circuit’s en banc ruling in favor of the plaintiffs and held that Los Angeles County sheriff’s deputies were entitled to qualified immunity because they reasonably relied on what the Ninth Circuit said was an overbroad warrant.

Quoting the Supreme Court, Kleinfeld’s opinion emphasized that “the fact that a neutral magistrate has issued a warrant is the clearest indication that the officers acted in an objectively reasonable manner” and that qualified immunity for police protects “all but the plainly incompetent or those who knowingly violate the law.”

He noted that the question of whether Satan Burger was obscene or not was not controlling as to the issue of an officer’s qualified immunity in a civil trial.

“Even if the book were, on a full reading, not indecent,” he wrote, “it would be too much to say that no reasonable police officer could seek a search warrant directed at the premises of the person who gave it to a minor until the police officer had read every word of the book and evaluated its literary value as a whole.”

The judge further explained that a “reasonable belief” that a warrant is supported by probable cause was a “low standard” that could be satisfied “without reading the book in its entirety” even if “obscenity and municipal indecency standards would not be satisfied for purposes of a criminal conviction.”

Judges Sidney R. Thomas and Consuelo M. Callahan concurred in the opinion. Thomas was added to the panel following the death of Senior Judge Betty B. Fletcher, who died last year.

The court said in a footnote that Thomas had read the briefs and reviewed a tape of the oral argument.

The case is Armstrong v. Asselin, 10-35777.


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