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Millender v. County of Los Angeles (9th Cir. - May 6, 2009)

By Shaun Martin

The real fight here is about qualified immunity. And every member of the panel -- Judges Callahan, Fernandez and Ikuta -- has his or her own take. The various opinions are definitely worth a read. And they're not even all that long.

I just wanted to say two things. First: For anyone who thinks that, in a big city like Los Angeles, there must be pretty good safeguards to make sure that warrants make sense, think again. This is a warrant that no way should have issued as framed. Its overbreadth seems fairly stunning to me, and it has the distinct read of a magistrate's use of a veritable rubber stamp.

Second, while I (of course) agree with Judge Fernandez that we prefer that police officers seek a warrant before -- as here -- smashing down the doors of innocent people's homes at 5:00 a.m., I don't think we see this process entirely eye-to-eye. Do we have a variety of doctrines to require and/or encourage warrants? Definitely. Rightly so. Judge Fernandez's concurrence articulates the vision that we do so because we like the fact that -- to use the words he wrote in an opinion way back when I was clerking on the Ninth Circuit (and which he quotes today) -- "when the employees of LAPD were faced with what can only be called a complex and uncertain legal issue, they sought legal advice and then followed that advice."

I don't recall thinking much about those words at the time, but I had a definite reaction to them now. Maybe it's the whole "torture-memo" thing or old age or what have you, but I have a keen sense that police officers who seek a warrant are doing nothing of the sort described by Judge Fernandez. They aren't "seeking legal advice" at all. They're pitching.

They want a warrant. They want a "Yes". They don't want neutral advice. They don't want the best statement of the law. They want to get the thing signed. Sure, they'll do what they have to do to make it valid, and since we suppress evidence and impose liability if they lie or omit critical information, they'll follow those rules. But don't be mistaken. They're not seeking a warrant in an attempt merely to figure out what the law is and then follow it. It's a result they want, not counsel. Want proof? Take away the rules that require a warrant or impose consequences on shading the affidavit and see what you get. It won't be the status quo, which it would be if the police were merely trying to get the advice of a neutral observer as to what's right.

Might there be some officers out there who use warrants in the manner described by Judge Fernandez? Maybe. Though even there I have my doubts. Regardless, I think we shouldn't pretend that qualified immunity and the good faith exceptions exist because police officers are just "seeking counsel" when they present a warrant. They're not. These doctrines instead exist because even though we know that police officers are pitching, we think that's okay -- or at least shouldn't create liability -- within a limited series of constraints: if they can persuade a neutral magistrate, if they don't lie, if the warrant they obtain isn't totally obviously invalid, etc.

But let's not pretend. Police officers aren't "seeking legal advice" when they request a warrant from a magistrate any more than you and I are "seeking legal advice on complex issuse" when we pitch a motion to a trial judge or an appeal to the Ninth Circuit. Sure, it's difficult. Sure, we present the facts. Sure, we operate within constraints. Sure, we'll ordinarily do what the judge says. But we ain't seeking advice. We're doing whatever we can legally do to get the result we want.

That's my reaction to this one, anyway. Again: It's a good one. Check it out.

Full post as published by California Appellate Report on May 06, 2009 (boomark / email).