Archive | Qualified Immunity

Interesting Division in Sixth Circuit Qualified Immunity Case

On Wednesday, the U.S. Court of Appeals for the Sixth Circuit decided Kovacic v. Cuyahoga County Department of Children and Family Services.  The panel consisted of Judges Boggs, Moore and Sutton.  The panel split on the question of qualified immunity for social workers who removed children from their mother’s home.  (You know where this is going, right?  Think again.)  Judge Moore wrote the opinion for the court rejecting qualified immunity, joined by Judge Boggs.  Judge Sutton dissented.  That’s hardly the line-up most would expect.

Time permitting, I may have more to say on this case later.  For now, let me just note that decisions like this are a useful reminder that the political affiliation or ideological orientation of a judge is not always a useful predictor of how judges will decide individual cases. [...]

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Cert. grant in Millender v. LA: Qualified immunity for an unconstitutional general warrant to seize firearms?

The Supreme Court recently granted certiorari in Millender v. Los Angeles. Here are the background facts: Bowen shoots at his ex-girlfriend with a sawed-off shotgun. The police obtain a search warrant for the home of Bowen’s 73-year-old former foster mother. The warrant application does not disclose that Bowen last lived with his foster mother 15 years ago. (The girlfriend suggested to the police that Bowen might be hiding there.) The warrant authorizes the seizure of all firearms on the premises, not merely the particular gun which had been used in the crime against the girlfriend.

The police executed a 5 a.m. dynamic entry, and in the course of their search, seize a firearm which is lawfully owned by the 73-year-old woman, Augusta Millender. She sues, and the 9th Circuit en banc rules that the warrant was objectively unconstitutional. The officer who procured the warrant (and Los Angeles, by respondeat superior) are not entitled to qualified immunity, because the warrant to seize all firearms was so clearly unconstitutional, based on settled law.

In the certiorari grant, the Questions Presented are:

This Court has held that police officers who procure and execute warrants later determined invalid are entitled to qualified immunity, and evidence obtained should not be suppressed, so long as the warrant is not “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” United States v. Leon, 468 U.S. 897, 920, 923 (1984); Malley v. Briggs, 475 U.S. 335,341,344-45 (1986). The Questions Presented are: 1. Under these standards, are officers entitled to qualified immunity where they obtained a facially valid warrant to search for firearms, firearm-related materials, and gang-related items in the residence of a gang member and felon who had threatened to kill his girlfriend and fired a sawed-off shotgun at her, 

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