Supreme Court Decision In Firearm Search Warrant Case Jeopardizes Gun Owners Rights

The ability to seek compensation for illegal police action that violates civil rights recently received a blow from the U.S. Supreme Court in the case of Messerschmidt v. Millender in a disappointing decision for self-defense civil rights advocates, the high court held that officers were entitled to qualified immunity from civil suit when they conducted a search pursuant to a warrant authorizing the seizure of any and all firearms and firearm-related materials, even though the items seized were known not to have been used in the crime under investigation.

The National Rifle Association (NRA) and the California Rifle and Pistol Association Foundation (CRPAF) submitted an amicus (“friend of the court”) brief with the Supreme Court. That brief generally supports police, but raises concerns about certain police practices.  A copy of the NRA/CRPAF brief, the Supreme Court’s opinion, and other case related documents, are posted at

Firearms are generally lawful to possess, and usually may not be seized without “probable cause” that a specific firearm was used in a crime.  The Fourth Amendment of the United States Constitution guarantees our right against search and seizure under a “general” search warrant (i.e., a warrant not based on probable cause and not describing with particularity the place to be searched and the person or thing to be seized).

Far too often police seize entire gun collections even when most of the firearms are not alleged to be part of any crime.  Some police are politically motivated to inflate statistics regarding the number of guns seized in order to justify increased funding for their efforts.  These seizures often result in damage to the firearms, and they inevitably cost gun owners the expense of getting their firearms back. Seizing firearms in instances like this can, depending on the circumstances, be illegal.  But when a firearm collection is seized by law enforcement pursuant to a warrant, it is very difficult to prevail in a lawsuit against peace officers who have broken the law.

The law protects police officers for certain “good faith” errors by granting them “qualified immunity.” Generally, when officers search a location and seize property pursuant to a warrant signed by a judge, they are granted this protection from civil suit. The assumption is that once a judge signs off on a warrant (essentially agreeing there is probable cause to search), the executing officers should not be required to second guess the presumably valid warrant.

In Millender, police officers conducted a nighttime search of the Millenders’ home. Pursuant to a judicially signed warrant, the police searched the home for all guns, all ammunition, and any indicia of gang involvement in connection with the investigation of Jerry Ray Brown, a man suspected of shooting at his ex-girlfriend with a specifically identified sawed-off shotgun.  The Millenders brought suit, alleging the officers had violated their Fourth Amendment rights because there was insufficient probable cause to believe the items sought were evidence of a crime.

The Supreme Court determined that, in light of Mr. Bowen’s possession and use of a sawed-off shotgun, his attempt to murder another person, and his past history of gang affiliation, a reasonable officer could conclude that there was a “fair probability” that the shotgun was not the only firearm Mr. Bowen owned.  With respect to the seizure of all indicia of gang involvement, the Supreme Court concluded that a reasonable officer could believe there was probable cause to seize that, too.  The Court noted that “[a] reasonable officer could certainly view Bowen’s attack as motivated not by the souring of his romantic relationship with [the victim] but instead by a desire to prevent her from disclosing details of his gang activity to the police.”

Is this a stretch? Yes. But remember the question is not one of the validity of the warrant, but whether it was “reasonable” for an officer to think there was probable cause to seize the evidence, i.e., all of Mr. Bowen’s firearms, once the judge signed the warrant.

Ultimately, how far the Court extended the protection of qualified immunity in this case is quite problematic.  It begs the question of what now becomes “unreasonable” for officers to believe after a judge has signed off on a warrant? And how can a peace officer ever be held accountable when such a high burden is placed on the plaintiffs?

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