I visited the Supreme Court this morning for the oral arguments in Messerschmidt v. Millender, a Fourth Amendment qualified immunity case I wrote about here. The transcript of the argument should be available here later this afternoon, but I figured I would post a few thoughts about the oral argument in the meantime:
(1) On the whole, the questioning left the impression that the Justice see the case as significantly closer than I was expecting. I saw the case as a relatively straightforward reverse, but the lawyers for the petitioner received a lot of push-back. The most surprising push-back was from Justice Scalia, who I read as indicating that he thought the errors in the warrant were obvious. Scalia is usually a strong pro-law enforcement vote in Fourth Amendment remedies cases, so if he’s on the other side, it’s hard to know where the votes will line up.
(2) Justice Kagan asked a particularly important question: What if the warrant is fine in many respects, but then has one defect in the list of items to be seized? That is, what if the warrant was sufficiently particular as to the guns, but no reasonable officer could think it was sufficiently particular as to the evidence of gang-related activity? This is a hugely important question in practice because it’s unfortunately very common for warrants to have a “catch-all” entry in the list of items to be seized. An officer will write a particular warrant, and then, just to be inclusive, throw in an extra item to be seized that is overly broad. Suppression challenges based on these “catch-all” entries are common, but don’t go anywhere: Courts routinely hold that even though a catch-all provision was overly broad, the evidence seized fell within one of the other (particular) items to be seized so the exclusionary rule doesn’t apply. The Court may punt on this issue in Messerschmidt, perhaps by seeing it as a matter of remedies rather than general liability, but it’s a hugely important question.
(3) One of the issues was whether the qualified immunity issue should be resolved differently because the officer submitted the application for review to his bosses and the prosecutors for approval. Under current qualified immunity doctrine, the answer should be “no,” and I think that answer makes sense. The problem is that getting approval from another officer or a prosecutor is an uncertain check: Some will really scrutinize the materials, and others will just rubber-stamp them. Some will know the Fourth Amendment well, others won’t. Given the wide variance in how much submitting the materials actually acts as a check, I don’t think it makes sense for liability to hinge on the formality of submitting the materials. Of course, it’s good policy to require the officers to submit the applications anyway: If the bosses or prosecutor know what they’re doing, that will avoid an unconstitutional search. But I don’t think the formality of the process should matter.
(4) I wonder if some of my surprise about the pushback the Justices gave the lawyer for the petitioner goes to how errors in warrants end up appearing in the appellate record. In the usual qualified immunity case, the Justices have oral testimony about what happened. That oral testimony consists in part of statements from the officers, who of course will tend to give testimony that is favorable to them. Cases based on defects in warrants are different. Warrants are legal documents, and they appear reprinted in the appendix like any other record. I wouldn’t be surprised if that contexts makes Supreme Court Justices more sensitive to defects in warrants than defects in warrantless searches when applying the qualified immunity standard. Part of the dynamic may be that Justices are more sensitive to errors in legal documents, as they are used to reviewing them de novo: An error during a warrantless search may seem like an understandable error in an imagined fast-paced investigation, while an error in a legal document reprinted right there in the record might seem particularly obvious to a Justice reading the briefs in chambers years later. That might explain the Court’s 2004 decision in Groh v. Ramirez, as well.