Searches for Guns at the Home of a Suspect’s Family Member:

The Ninth Circuit has just agreed to rehear Millender v. County of Los Angeles en banc; here’s what I blogged about the case when the panel opinion came out in May:

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.