Messerschmidt v. Millender - Oral Argument - December 05, 2011

Messerschmidt v. Millender

Media for Messerschmidt v. Millender

Audio Transcription for Opinion Announcement - February 22, 2012 in Messerschmidt v. Millender

Audio Transcription for Oral Argument - December 05, 2011 in Messerschmidt v. Millender

John G. Roberts, Jr.:

We will hear argument next in Case 10-704, Messerschmidt v. Millender.

Mr. Coates.

Timothy T. Coates:

Mr. Chief Justice, and may it please the Court:

In Malley v. Briggs and United States v. Leon, this Court set forth a very high standard for denying qualified immunity in the civil context or suppressing evidence in the criminal context under circumstances where a police officer has procured a warrant that is subsequently determined to be invalid.

Specifically, the Court held that the initial magistrate's determination is -- is entitled to great deference, and that you will go behind that only in cases where the officer falsified information or omitted exculpatory information, where the affidavit was bare-bones, or there was some indication that the judicial officer did not perform the function, and then a catch-all provision, where the warrant was so lacking in indicia of probable cause that no reasonable officer could even submit it for a magistrate's determination.

And specifically in Malley, the Court said it had to be the actions of an officer that was plainly incompetent or knowingly violating the law.

This case arises from a Ninth Circuit decision that we submit does not apply the Court's standards, under circumstances where the officer submitted, far from a bare-bones affidavit, but a highly detailed, factual affidavit that we submit provided probable cause for the search or at least, under the Court's qualified immunity jurisprudence, a reasonable officer could believe that the warrant had probable cause.

John G. Roberts, Jr.:

There -- I suppose one new feature of the case is the fact that these officers submitted the affidavit to their superiors, who were -- were attorneys.

Timothy T. Coates:



John G. Roberts, Jr.:

Have we addressed that in a prior case?

Timothy T. Coates:

--I don't know that the Court -- the Court has -- in I believe the exclusion context I think I have seen it.

I can't recall the case, but I believe it has, and the circuit courts certainly have talked about that, as an indicia of good faith, the officer being willing to submit his work to someone else to review it.


Antonin Scalia:

But it isn't good faith here, that's the problem.

We don't have a good faith test, we -- we have a test that goes beyond good faith.

Even if the officer is in good faith, according to the test we have set forth, if he's so stupid that -- that he -- he executes a warrant that no reasonable officer could think was correct, he's -- he's in the pot, right?

Timothy T. Coates:

--Well, that -- that's the test that the Court has set out.

But it's a high test, plainly incompetent or knowingly violating the law.

And I think these are additional factual circumstances that show at least the officer is trying to be careful, that this isn't something that's been -- been tossed off.

Sonia Sotomayor:

Counsel, I thought in the Leon case that in fact, just like the claim in this case, that the affidavit was submitted to supervisors and the Court created the Leon test in spite of that.

So to say that we have a case on point, Leon itself is on point.

We created the test in the face supervisor's review.

You are not actually, are you, arguing a Nuremberg defense now?

Timothy T. Coates:


I'm just saying that--

Sonia Sotomayor:

That -- that simply because supervisors decide that it's okay, that that--

Timothy T. Coates:


Sonia Sotomayor:

--exculpates someone from responsibility?

Timothy T. Coates:

Certainly not.