Unconstitutional Warrants and Officers' Liability

On Wednesday, the United States Supreme Court issued three decisions. One of these decisions, Messerschmidt v. Millender, dealt with an officer’s liability for seizing property based on allegedly unconstitutional warrant. In this case, the Supreme Court held that the officers could not be sued for seizing property under such a warrant.

This case arose from a 2003 search of Augusta Millender’s home; the officers were searching for Ms. Millender’s foster son and/or a shotgun used in a domestic assault. Police did seize a handgun owned by Ms. Millender, which she claimed was hers and was used strictly for personal defense. Later, a court ruled the search warrant unconstitutional under the Fourth Amendment as “the warrant improperly allowed the police to search for ‘all handguns, shotguns and rifles’ and “evidence showing street gang membership.”

However, on Wednesday, the Court ruled that Ms. Millender could not hold the officers liable for the search, even under a warrant later found to be unconstitutional, by relying on the 1986 Supreme Court ruling in Malley v. Briggs; in this case, the Court held that officers in these situations should not be granted immunity from lawsuits such as this “only where the warrant application is so lacking in indicia of probable cause as to render official belief in its existence unreasonable.” In the most recent case, Justice Roberts held that Ms. Millender’s case did not fall under this exception.

Justices Kagan, Sotomayor and Ginsberg dissented. Justice Kagan wrote that she felt the search for guns was proper, but felt that the search for gang-related evidence (per the search warrant in question) was not connected to the initial incident that gave rise to the warrant. Justice Sotomayor strongly disagreed that the officers’ actions were objectively reasonable. She wrote, “It bears repeating that the founders adopted the Fourth Amendment to protect against searches for evidence of unspecified crimes, and merely possessing other firearms is not a crime at all.” The fact that the officer’s superiors and a judge approved a warrant did not sway her opinion in the least.

The need to protect officers from liability is understandable. If officers are constantly worried about what they will and won’t be held liable for seizing under an apparently valid warrant, then they may easily overlook crucial evidence or fail to seize it “just in case”. Officers must be protected so that they can go about doing their job efficiently and effectively. The officers executing the warrant should be able to rely on their superiors and the judge issuing the warrant.

Perhaps the real issue in this case is determining how this warrant was issued with the questionable language to begin with. “Evidence showing street gang membership” without further explanation is overly broad and can lead to many items being seized by police. Also, this warrant was issued base on a domestic assault complaint; the warrant in question should have been limited to searching for evidence based on that complaint. Not only did this language cause the warrant to fail under Fourth Amendment scrutiny, but it also required the officers to execute judgment calls and seize items they should not have.

For the article from the New York Times, click here.

More States Debating Same Sex Marriage

Another week and three more states appear to be on the verge of approving the ability of same-sex couples to marry within their jurisdictions. Legislation was signed on Monday in Washington which will take effect no earlier than June that will allow same-sex marriage in the state. Both New Jersey and Maryland have bills before their governments today which would legalize gay marriage. Many expect the measure to pass in New Jersey, while questions remain in Maryland. However, even with passage of the bill in New Jersey Governor Chris Christie is expected to veto the bill.

“In Maryland, the House of Delegates will begin debate on the "Civil Marriage Protection Act" sponsored by Gov. Martin O'Malley, a Democrat.” The bill has already been passed by two House Committees, but there remains doubt as to if there are enough supporters to get through the House vote. Last year Maryland was unsuccessful in passing similar legislation.

In New Jersey, “the state Senate approved the proposed Marriage Equality and Religious Exemption Act on Monday.” It is expected the measure will pass the House later today. Once passage occurs, it is almost certain that the legislation will be vetoed. However, I have a hard time fully disagreeing with the governor’s reasoning for promising a veto: he is fully expected to back a referendum in November where he feels it will be up to the voters, and not the legislature, to allow same-sex marriage. Unlike some other jurisdictions where voters have had a voice, a recent poll indicates “that a majority of New Jersey voters support the right of same-sex couples to marry.” As such, supporters of the bill feel that it is only a matter of time before same-sex marriage will be legalized in New Jersey. And, when such legislation passed, it will be the true desire of the voters who cared enough to voice their opinion on the subject.

For further information, you can find relevant articles here and here.

Same-sex Marriage in Washington State

The state of Washington appears to be on track to join six previous states that have passed laws legalizing same-sex marriage. The Washington Senate approved the Bill and now it is to be sent to the House where it is expected to pass without issue. However, opponents of the Bill are already prepared to challenge the law with a referendum.

The Bill in question dealt with several issues regarding same-sex marriage; issues regarding legal protection for religious groups and organizations and businesses that object to gay marriage. An amendment allowing for a referendum clause was refused, but opponents still promise to use a referendum to attempt to overturn the pending law. However, no action can be taken until the Bill is passed by the House and becomes law.

Depending on the outcome of the referendum, the law could allow same-sex couples to begin wedding in Washington as early as June. However, if enough signatures are obtained for a referendum the outcome will not be final and same-sex marriages will be postponed until after the November election.

I have written about same-sex marriage on several occasions on this blog, and my opinion as to whether they should be legalized or not remain the same. However, in this case one of the more interesting items are some quotes by the Bill’s sponsor stating that lawmakers who vote against gay marriage “are not, nor should they be accused of bigotry.” He continues on by saying that, “Those of us who support this legislation are not, and we should not be accused of, undermining family life or religious freedom,” and “[m]arriage is how society says you are a family.”

Senator Ed Murray, the Bill sponsor, does not want unwarranted personal attacks at other legislators due to their vote; whether their vote is due to their personal prejudices or feelings or because they feel they are best serving their constituents, it is wrong to automatically assume and label them as something they are not. The Senator also attempts to head off the major opposition at the pass by stating that this is not an attack on religion or “traditional” families; it is merely allowing same-sex couple to be a family in the eyes of society. Same-sex couples already live as and are viewed by many as families, and allowing them to marry only makes this status “official”.

For the article from the Washington Post, click here.