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Posted on 07/13/2011 5:16:39 AM PDT by marktwain
San Diego, CA --(Ammoland.com)- The Fourth Amendment guarantees our right to not be subjected to search and seizure under a “general” search warrant (i.e., a warrant not based on probable cause and not particularly describing the place to be searched and the person or thing to be seized).
Firearms are generally lawful to possess, and usually may not be seized without probable cause that a specific firearm was used in a crime. On August 24, 2010, the Ninth Circuit Court of Appeals in Millender v. County of Los Angeles, et al. (07-55518), confirmed that a general search warrant requesting the seizure of “all handguns, rifles or shotguns of any caliber, or any firearms capable of firing ammunition…” was unconstitutional when the police who sought the warrant were aware they were actually searching for just one specific firearm.
The National Rifle Association (NRA) and the California Rifle and Pistol Association Foundation (CRPAF) argued this point in an amicus (friend of the court) brief filed in the Ninth Circuit Court of Appeals on behalf of the Mrs. Millender. A copy of the brief, along with the opinion, other case related briefs, and memorandum analyzing the opinion is posted at http://michellawyers.com/millendervlosangeles.
Following the Ninth Circuit’s Millender decision, defendant County of Los Angeles sought review by the United States Supreme Court. On June 27, 2011, the Supreme Court agreed to review the case, and to address the question of whether law enforcement is entitled to qualified immunity against a civil rights law suit when a judge has signed off on the warrant – even when the officers seized property (i.e. firearms) unrelated to the case (and the specific firearm) they are investigating. The case will be heard by the Supreme Court next year. NRA and CRPAF will weigh-in again through an amicus brief at that time.
Far too often police seize entire firearms collections even when most of those firearms are not alleged as part of any criminal offense. In fact, to get to large gun collections local police even resort to “stinging” gun collectors with enticing too-good-to-be-true firearm deals that often involve grey areas of the law, making inadvertent violations of the law common. Some police are politically motivated to inflate statistics of the number of guns seized in order to justify increased funding for their efforts. These seizures often result in damage to the firearms, and inevitably cost their owners expenses and legal fees to get the firearms back.
The Millender case involved a domestic assault between Mr. Bowen and Mrs. Kelly. Bowen threatened Kelly using a specifically identified sawed-off shotgun. Kelly called the police. Police ran Bowen’s record and discovered he was a felon. Police then tracked down an address purported to be Bowen’s residence, and drafted a search warrant that included a request to seize all firearms and ammunition. Police included these general requests despite having a picture of the specific sawed-off shotgun Bowen allegedly used in the assault.
At 5 a.m. the Los Angeles County Sheriff’s Department SWAT team served the warrant at the address of Bowen’s foster mother, Mrs. Millender (law enforcement knew that this was her residence, not Bowen’s). Police broke in through her front security door and a front window. Bowen was not there, but law enforcement nonetheless seized from Mrs. Millender a 12-gauge “Mossberg” shotgun with a wooden stock that looked nothing like the sawed-off shotgun they were after, along with a box of .45 caliber ammunition.
Bowen was found the following day hiding under a bed in a motel.
The District Court held that the police had qualified immunity from the damages sought in the civil rights case because of the supposed validity of the warrant.
The Ninth Circuit Court of Appeals reversed, holding that the warrant was over-broad, especially given law enforcement’s knowledge of the specific firearm Bowen used, and considering the total lack of any gang related evidence.
Due to the extreme degree in which the warrant was unconstitutional, the Court of Appeals held that the officers were not entitled to qualified immunity and could be sued for damages for violating the Millenders’ civil rights.
Support the NRA/CRPAF Legal Action Project Seventeen years ago the NRA and CRPA joined forces to fight local gun bans being written and pushed in California by the gun ban lobby. Their coordinated efforts became the NRA/CRPA “Local Ordinance Project” (LOP) – a statewide campaign to fight ill-conceived local efforts at gun control and educate politicians about available programs to effectively reduce accidents and violence without infringing on law-abiding gun owners’ rights. The NRA/CRPA LOP has had tremendous success in defeating most of these anti-self-defense proposals.
In addition to fighting local gun bans, for decades the NRA has been litigating dozens of cases in California courts to promote the right to self-defense and the Second Amendment. In the post Heller and McDonald legal environment, the NRA and CRPA Foundation have formed the NRA/CRPA Foundation Legal Action Project (LAP), a joint venture to proactively strike down ill-conceived gun control laws and ordinances and advance the rights of firearms owners, specifically in California. Sometimes success is more likely when LAP’s litigation efforts are kept low profile so every lawsuit’s details are not always released. To see a partial list of the LAP’s recent accomplishments, or to contribute to the NRA or to the NRA / CRPAF LAP and support this and similar Second Amendment cases, visit www.nraila.com and www.crpafoundation.org.
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Interesting that the Supreme Court should agree to hear this case.
Even more that elected officials who allegedly "represent" the best interests of the community are Hell bound determined to take the 2nd Amendment Rights away from the citizens.
Naturally, no one in law enforcement had a problem with the government seizing totally unrelated private property, weapons and ammunition in this case, from an innocent party, leaving them defenseless.
How long before warrants have as part of the boiler template "vehicles, cash, jewelry and other valuables that can be pawned."
Felon, threatens wife, ....not a very sympathetic case.
I’m a CCW holder and I don’t want felons owning weapons or voting.
The problem is that Mrs. Millender, Bowen's foster mother, isn't a felon. And even if she were, the search warrant was for a sawed off that Bowen owned, not a legal shotgun that his foster mother owned.
Please try to let facts determine your approach to this case, not emotion. Emotion is a large part of the reason why police get away with "taking away big scary guns from the people."
The police totally deserve to be sued to the hilt in this case. Maybe losing a few million in damages and not being able to buy a drug boat next year will teach the cops to be a little more scrupulous about respecting the Constitution.
When someone has repaid their debt to society, meaning they served their time and are off probation, they should have the same rights as everyone else. That was the intent of our justice system. Otherwise the justice system is creating an underclass that doesn’t have constitutional protections. One doesn’t have to be very smart to understand the possible repercussions of this.
Up your alley ping!
Felons lose certain rights, by virtue of their conviction.
The sentence isn’t bound by time served, as it include the loss of certain rights.
Why bother reading the article and knowing the issue at hand when you can just type away and look silly?
When someone has repaid their debt to society, meaning they served their time and are off probation, they should have the same rights as everyone else.
Will the "civil libertarians" (libs) vote for restricting police powers or by their anti-gun views? Will the "law-and-order" types vote for expanded police power or their pro-gun views?
The case is about the seizure of the old lady’s gun during a search for the felon’s gun. The felon hadn’t lived at the house for 15 years.
I agree. Though it does not totally relate to this case.
Fire arms are self defense. Everyone entitles to walk the streets as a free citizen should retain the rights of full and free self defense. If you dont trust someone with a gun or a vote they should not be trusted to walk the streets.
>I’m a CCW holder and I don’t want felons owning weapons or voting.
I do, if they have served their sentence.
It is wholly unjust to keep punishing them after they have served their sentence (inarguably it creates a second class of citizen whose whole exercise of rights, such as voting or self defense, is contingent on the approval of the Government... this incentivizes the Government to make as many people as possible this secondary-class as it increases their power).
>Felons lose certain rights, by virtue of their conviction.
>The sentence isn’t bound by time served, as it include the loss of certain rights.
Then your argument is that those certain rights are not rights of the Citizen, which we assume this felon is, but upon... what?
Or are you arguing that they are privileges which are mislabeled as rights?
Further, the second amendment lists the right as belonging to “the people”* which might mean a) a citizen of this country, b) any legal resident of this country, c) any person by virtue of being human... which of these, in your estimation, is the correct reading? And how does a felon’s crime invalidate membership of that class?
So you are in favor of a permanant underclass. That isn’t justice.
Which elements of the Bill of Rights are retained by convicted felons in prison?
So you are in favor of a permanant underclass. That isn’t justice.
>Which elements of the Bill of Rights are retained by convicted felons in prison?
Now you are conflating the issue: that of a freeman (who has never been a felon) and a freeman (who has been convicted of a felony, but served his entire sentence) with that of a felon who IS serving his sentence.
But even so, even the felon serving his sentence still has rights; consider a felon who is accused of murder (say of a prison guard) is he to be denied a jury-trial because he was accused whilst imprisoned? Is he to be forced to witness against himself? Is self defense an acceptable justification? (Consider a prison-guard attempting to rape said felon; clearly a case wherein the guard is NOT acting within ANY lawful authority.) What about the prohibition of cruel and unusual punishments? {Arguably the sentencing we have qualifies, anything over 20 years is patently forcing him to be caged like an animal, lacking human dignity, for a significant portion of his life; and yet something like 20 lashes which would be painful but heal up in less than a 20th of that time is shunned by our judicial system as being “cruel.”}
But you ought to answer the questions presented in my last post.
What do you think all those domestic violence laws are about? Pretty easy to make up laws that sooner or later will snag most of the citizens. And these are not even felony convictions and in most case don't even involve jail time but only anger management classes taught by angry man hating dikes. And just for good measure domestic violence has been redefined to mean darn near anything that might even possibly upset your significant other or child.
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