Johnson v. County Of Los Angeles

Decision Date24 August 2010
Docket NumberNo. 07-55518.,07-55518.
Citation620 F.3d 1016
PartiesAugusta MILLENDER; Brenda Millender; and William Johnson, Plaintiffs-Appellees, v. COUNTY OF LOS ANGELES; Robert J. Lawrence (292848); Curt Messerschmidt (283271), Defendants-Appellants, and Los Angeles County Sheriff's Department; Leroy D. Baca; Scott Walker (188188); Rick Rector (280600); Donald Nichiporuk (213625); Richard Schlegel (280735), e/s/a M. Schlegel; Brice Stella (402018), e/s/a D. Stella; Jack Demello (223333), e/s/a J. Dernello; David O'Sullivan (293952); Jack Ritenour (164927); and Ian Stade (279464), Defendants.
CourtU.S. Court of Appeals — Ninth Circuit

OPINION TEXT STARTS HERE

COPYRIGHT MATERIAL OMITTED.

Eugene P. Ramirez, Esq., Manning & Marder, Kass, Ellrod, Ramirez LLP, Los Angeles, CA, attorney for the appellants.

Robert Mann, Esq., Robert Mann & Donald W. Cook, Los Angeles, CA, attorneys for the appellees; argued by Olu K. Orange, Esq., Orange Law Offices, Los Angeles, CA.

Appeal from the United States District Court for the Central District of California, Dean D. Pregerson, District Judge, Presiding. D.C. No. CV-05-02298-DDP.

Before ALEX KOZINSKI, Chief Judge, PAMELA ANN RYMER, BARRY G. SILVERMAN, SUSAN P. GRABER, RAYMOND C. FISHER, RICHARD C. TALLMAN, JOHNNIE B. RAWLINSON, JAY S. BYBEE, CONSUELO M. CALLAHAN, MILAN D. SMITH, JR. and SANDRA S. IKUTA, Circuit Judges.

Opinion by Judge IKUTA; Dissent by Judge CALLAHAN; Dissent by Judge SILVERMAN.

OPINION

IKUTA, Circuit Judge:

Plaintiffs Augusta Millender, Brenda Millender, and William Johnson (collectively, the Millenders) filed this suit under 42 U.S.C. § 1983 against the County of Los Angeles, the Los Angeles County Sheriff's Department, and several individual members of the Sheriff's Department, alleging violations of their civil rights. Their complaint arose from a search pursuant to a warrant obtained by Detective Curt Messerschmidt of the Los Angeles County Sheriff's Department and executed under the supervision of Sergeant Robert Lawrence. Messerschmidt and Lawrence (collectively, the deputies) appeal from the district court's determination that they were not entitled to qualified immunity with respect to the alleged overbreadth of the search warrant. Because the challenged sections of the warrant were “so lacking in indicia of probable cause as to render official belief in its existence unreasonable,” Malley v. Briggs, 475 U.S. 335, 345, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986), we affirm.

I

On November 4, 2003, Messerschmidt applied for an arrest warrant for Jerry Ray Bowen at 2234 E. 120th St., Los Angeles, and for a warrant to search that address and seize specified property in connection with “a spousal assault and an assault with a deadly weapon.” Messerschmidt prepared an affidavit, entitled “Statement of Probable Cause.” The affidavit contained the following facts: The victim of the assault, Shelly Kelly, stated that she had a “dating relationship” with the suspect, Bowen. Kelly decided to end the relationship due to Bowen's violent temper and because Bowen had previously physically assaulted her. Because of Bowen's violent nature, Kelly asked the Sheriff's Department to send officers to protect her while she gathered some of her property from the residence that she and Bowen shared. Once the requested officers arrived, Kelly began to move her property to her car. After approximately twenty minutes, the officers received an emergency call and had to leave, saying they would return after they handled the call.

According to Kelly, as soon as the officers left, Bowen appeared and screamed, “I told you to never call the cops on me bitch!” Bowen physically assaulted Kelly and attempted to throw her over the top railing of the second story landing of their residence. Bowen grabbed Kelly, bit her, and tried to drag her by the hair back into their residence. When Kelly resisted by bracing herself against the door, Bowen grabbed both of Kelly's arms, but Kelly was able to slip out of her shirt and run to her car. Bowen followed seconds later, now holding “a black sawed off shotgun with a pistol grip.” Standing in front of Kelly's car, Bowen pointed the shotgun at Kelly and shouted, “If you try to leave, I'll kill you bitch.” Kelly was able to escape by leaning over in her seat and flooring the gas. Bowen jumped out of the way and fired one shot at her, blowing out the front left tire of Kelly's car. Chasing the car on foot, Bowen fired four more times in Kelly's direction, missing her each time.

Shortly after, Kelly located police officers who immediately recognized her as the same person they had been protecting before they left for the emergency call. Kelly reported the shooting, described Bowen's firearm as a “black sawed off shotgun with a pistol grip,” and gave the officers four photos of Bowen to aid their investigation.

Based on this information, Messerschmidt put a photo of Bowen into a “six pack” line-up. When Messerschmidt showed the photo line-up to Kelly, she immediately identified Bowen and circled his picture. Messerschmidt's affidavit states that [t]he person [Kelly] identified is Jerry Ray Bowen ..., a known Mona Park Crip gang member.” Kelly told Messerschmidt that Bowen's current address was 2234 E. 120th St., Los Angeles.

Messerschmidt requested a “Ramey Warrant” to arrest Bowen, because Kelly knew him personally and identified him as the person who physically assaulted and shot at her. 1 According to the affidavit, Messerschmidt conducted an “extensive background search” on Bowen using “departmental records, state computer records, and other police agency records.” Using these records and information provided by Kelly, Messerschmidt confirmed that Bowen resided at 2234 E. 120th St. in Los Angeles.

Messerschmidt's affidavit also requested night service of the search warrant, giving two reasons. First, “the investigation has shown that the primary suspect in this case has gang ties to the Mona Park Crip gang based on information provided by the victim and the cal-gang data base.” Second, Messerschmidt believed that “the nature of the crime (Assault with a deadly weapon) goes to show that night service would provide an added element of safety to the community” as well as to those personnel serving the warrant. The affidavit concluded by stating that Messerschmidt “believes that the items sought will be in the possession of Jerry Ray Bowen and the recovery of the weapon could be invaluable in the successful prosecution of the suspect involved in this case, and the curtailment of further crimes being committed.”

In addition to preparing the affidavit, Messerschmidt completed a “Search Warrant and Affidavit” form to authorize the search of the residence identified in “Attachment 1” and the seizure of property identified in “Attachment 2.” Attachment 1 identifies the “location to be searched” as 2234 E. 120th St. in Los Angeles. Attachment 2 sets out two categories of items to search and seize. The first paragraph lists:

All handguns, rifles, or shotguns of any caliber, or any firearms capable of firing ammunition, or firearms or devices modified or designed to allow it to fire ammunition. All caliber of ammunition, miscellaneous gun parts, gun cleaning kits, holsters which could hold or have held any caliber handgun being sought. Any receipts or paperwork, showing the purchase, ownership, or possession of the handguns being sought. Any firearm for which there is no proof of ownership. Any firearm capable of firing or chambered to fire any caliber ammunition.

The second paragraph lists:

Articles of evidence showing street gang membership or affiliation with any Street Gang to include but not limited to any reference to Mona Park Crips,

including writings or graffiti depicting gang membership, activity or identity. Articles of personal property tending to establish the identity of person [sic] in control of the premise or premises. Any photographs or photograph albums depicting persons, vehicles, weapons or locations, which may appear relevant to gang membership, or which may depict the item being sought and or believed to be evidence in the case being investigated on this warrant, or which may depict evidence of criminal activity. Additionally to include any gang indicia that would establish the persons being sought in this warrant, affiliation or membership with the Mona Park Crips street gang.

An additional attached affidavit recounts Messerschmidt's experience in gang investigations. The Search Warrant includes Messerschmidt's attestation that the incorporated affidavit is true and the property described in Attachment 2 is lawfully seizable.

Messerschmidt also drafted a “Probable Cause Arrest Warrant and Affidavit in Support Thereof” to authorize the arrest of Bowen, which again states his address as 2234 E. 120th St., Los Angeles. This arrest warrant application incorporates Messerschmidt's affidavit by reference.

Messerschmidt was aware of other relevant facts not included in the affidavit. First, Kelly explained to Messerschmidt that the address she gave him, 2234 E. 120th St., was the home of Bowen's foster mother, Augusta Millender. Second, Messerschmidt knew that Bowen had a previous criminal record and was on summary probation for spousal battery and driving without a license. 2 Bowen also had several previous felony convictions and misdemeanor arrests, and was a “third strike candidate” under California law. 3 Third, in addition to identifying the gun Bowen used as a black sawed-off shotgun with a pistol grip, Kelly gave Messerschmidt a picture of Bowen posing with the gun. Fourth, there was no evidence that Bowen's assault on Kelly was in any way gang-related. In subsequent testimony, Messerschmidt answered “No” to the question, “So you didn't have any reason to believe that the assault on Kelly was any sort of a gang crime, did you?”

Before Messerschmidt submitted the warrants and affidavit to the magistrate, they were...

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