Vol. 27 No. 7 – Qualified Immunity Is Available When Actions Are Objectively Reasonable


On February 22, 2012, in the case of Messerschmidt et al. v. Millender et al., the United States Supreme Court reversed a decision from the Ninth Circuit U.S. Court of Appeals which had denied officers qualified immunity from civil liability after they executed a search warrant issued by a magistrate.

The Court ruled that “the fact that a neutral magistrate has issued a warrant is the clearest indication that the officers acted in an objectively reasonable manner, or in ‘objective good faith.’”


As a result of threats against her by her boyfriend, Jerry Bowen, Shelly Kelly requested police protection while she moved out of their apartment.  Two officers responded but were called away on an emergency.  The boyfriend then appeared with a shotgun, threatened to kill her and, when she drove away, fired at her car, blowing out one of the tires.

Thereafter, following a meeting with Ms. Kelly, Detective Messerschmidt “conducted a detailed investigation, during which he con­firmed Bowen’s connection to the Millenders’ home [the home of Bowen’s former foster mother], verified his membership in two gangs, and learned that Bowen had been arrested and convicted for numerous violent and firearm-related offenses. Based on this investigation, Messerschmidt drafted an application for a warrant authorizing a search of the Millenders’ home for all firearms and ammunition, as well as evidence indicating gang membership.”

“Before submitting the application to a magistrate for approval, Messerschmidt had it reviewed by his supervisor, Sergeant Robert Lawrence, as well as a police lieutenant and a deputy district attorney. Messerschmidt then submitted the application to a magistrate, who issued the warrant. The ensuing search uncovered only Millender’s shotgun, a California Social Ser­vices letter addressed to Bowen, and a box of .45-caliber ammunition.”

The Millenders filed a lawsuit, under 42 U. S. C. §1983, alleging that the officers had subjected them to an unreasonable search in violation of the Fourth Amendment.  The District Court granted summary judgment to the Millenders, concluding that the firearm and gang-material aspects of the search warrant were overbroad and that the officers were not en­titled to qualified immunity from damages. The Ninth Circuit, sit­ting en banc, affirmed the denial of qualified immunity holding that the warrant’s authorization was unconstitutionally over­broad.


The Supreme Court did not disagree with the finding that the warrant was overbroad but reversed the denial of qualified immunity for the officers.  The Court held that “[q]ualified immunity “protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly es­tablished statutory or constitutional rights of which a reasonable person would have known.’ ”

Furthermore, said the Court, “[t]he fact that the officers sought and obtained approval of the warrant application from a superior and a deputy district attorney before submitting it to the magistrate provides further support for the conclusion that an officer could reasonably have believed that the scope of the warrant was supported by probable cause. A contrary conclusion would mean not only that Messerschmidt and Lawrence were “plainly incompetent” in concluding that the warrant was sup­ported by probable cause, but that their super­visor, the deputy district attorney, and the magistrate were as well.”

Securing a warrant will not always protect an officer from liability, said the Court, which has rec­ognized an exception allowing suit when “it is obvious that no rea­sonably competent officer would have concluded that a warrant should issue.” [Malley v. Briggs, 475 U. S. 335, 341.] The “shield of immunity” otherwise conferred by the warrant will be lost, for example, where the warrant was “based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.”

However, “in the ordinary case, an officer cannot be expected to question the magistrate’s prob­able-cause determination” because “[i]t is the magistrate’s responsi­bility to determine whether the officer’s allegations establish proba­ble cause and, if so, to issue a warrant comporting in form with the requirements of the Fourth Amendment.”

“It would not be entirely unreasonable for an officer to believe that there was probable cause to search for all firearms and firearm-related materi­als. Under the circumstances set forth in the warrant, an officer could reasonably conclude that there was a “fair probability” that the sawed-off shotgun was not the only firearm Bowen owned and that Bowen’s sawed-off shotgun was il­legal. Given Bowen’s possession of one illegal gun, his gang membership, willingness to use the gun to kill someone, and concern about the police, it would not be unreason­able for an officer to conclude that Bowen owned other illegal guns. An officer also could reasonably believe that seizure of firearms was necessary to prevent further assaults on Kelly.”


On September 16, 2012, JONES & MAYER published a Client Alert Memo following the decision by the Ninth Circuit U.S. Court of Appeals.  We provided some guidance in how to avoid being caught in the “Catch 22” created by the decision.  As was noted by the Supreme Court, the officers protected themselves by submitting their application for a warrant to their supervisor and then to a deputy district attorney.  For the purpose of insuring qualified immunity from civil liability, should a court ultimately conclude that one’s constitutional protections were violated, such precautions are always of assistance.

Logic prevailed in this case, as is evident by the Supreme Court stating that the officers were justified in concluding that the warrant was sup­ported by probable cause, since that was the finding of “their super­visor, the deputy district attorney, and the magistrate . . . as well.”

Nonetheless, the Court pointed out that it could subsequently be found that an officer’s affidavit so lacked the “indicia of probable cause as to render official belief in its existence entirely unreasonable.” As such, we emphasize, as we always do, the necessity to seek out and secure advice and guidance from the agency’s legal counsel.  In situations like this, the more guidance an officer receives, the better.

If you wish to discuss this case in greater detail, please don’t hesitate to contact me at (714) 446 -1400 or via e-mail at mjm@jones-mayer.com.

Information on www.jones-mayer.com is for general use and is not legal advice. The mailing of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute an attorney-client relationship.