Searching a relative’s home
Need more of this: “Because the challenged sections of the warrant were ‘so lacking in indicia of probable cause as to render official belief in its existence unreasonable’” — that the police officers were not shielded from liability by qualified immunity.
August 25th, 2010 at 9:23 am
One of the commenters over at Volokh’s has a good point: Why are the cops held responsible but not the magistrate/judge who signed off on the warrant and should have realized that the affidavit supporting it was “so lacking in indicia of probable cause as to render official belief in its existence unreasonable”?
The cops followed the proper procedure and the law. They went to a supposedly neutral, impartial magistrate, said: “here’s what we’ve got, judge,” and the judge signed off on the warrant. It looks like they also got approval from the prosecutor before going the the judge. Both the prosecutor and the judge are supposed to have a greater understanding of the law and what constitutes probable cause than the police officers, which is one reason they have to approve the warrant.
Or, as another commenter put it:
The cops should have at least some immunity. The prosecutor and the judge should be the ones liable.
August 25th, 2010 at 10:43 am
It’s very hard to win these kind of cases. Congratulations to the lady, her attorneys and the court.
I started dealing with the police seizing guns from innocent people, as a victim’s advocate before I was a lawyer, in 1979. A person would defend himself with a gun, the police would take his gun, and he would never see it again.
It’s not just the immunities. It’s also the cumbersome bureaucratic and judicial process. You hire a lawyer, you pay him for seven years, and you get $360.00 compensation for your S&W Model 10. That’s mostly how the police get away with it.
August 25th, 2010 at 10:52 am
Did you read the opinion? I scanned it. It appears the real issue is the cops had very specific information on the gun they were seeking, a black sawed-off shotgun with pistol grip, but wrote the warrant for any gun they could find. The cops even had a picture of the suspect holding the gun. But they left this information out of the affidavit when applying for the warrant.
It really is the picture that did them in. The officers argued that the witness could have been wrong about the gun but the court said that even if her description was wrong, you had a picture and the homeowner’s shotgun confiscated during the search didn’t match the one in the picture.