Per Curiam.
{¶ 1} Respondent, Patrick Joseph O'Malley of Chagrin Falls, Ohio, Attorney Registration No. 0058659, was admitted to the practice of law in Ohio in 1992. On December 4, 2008, following his conviction and sentencing on a single count of transportation and importation of obscene matters, we imposed an interim felony suspension of respondent's license pursuant to Gov.Bar R. V(5)(A)(4). In re O'Malley, 120 Ohio St.3d 1426, 2008-Ohio-6274, 897 N.E.2d 658. Thereafter, relator, Disciplinary Counsel, filed a complaint charging respondent with a single violation of DR 1-102(A)(6) (prohibiting conduct that adversely reflects on a lawyer's fitness to practice law). In September 2009, we rejected the report of the Board of Commissioners on Grievances and Discipline recommending that we adopt the parties' consent-to-discipline agreement and impose a 12-month suspension, with credit for the interim felony suspension. 122 Ohio St.3d 1525, 2009-Ohio-4866, 913 N.E.2d 460. Based upon his conduct in downloading obscene photographs and stories from the Internet to personal computers in his home, the Board of Commissioners on Grievances and Discipline again recommends that we suspend respondent from practice for 12 months and credit him for time served under the interim suspension of his license.
{¶ 2} We accept the board's factual findings and its conclusion that respondent's conduct violated the ethical standards incumbent upon Ohio lawyers. We conclude, however, that the appropriate sanction for respondent's misconduct is a two-year suspension from the practice of law in Ohio, with credit for time served under the interim suspension; however, respondent may not apply for reinstatement until he has completed his term of federal supervised release.
Misconduct
{¶ 3} Respondent became the recorder of Cuyahoga County in 1997 and retained the office through elections in 1998, 2000, and 2004. After winning the primary race for the recorder's office in 2008, he agreed to plead guilty to a single count of transportation and importation of obscene matters, which alleged that he did "knowingly use an interactive computer service for the carriage in interstate and foreign commerce of numerous obscene, lewd, lascivious, and filthy pictures, writings and other matters of indecent character," in violation of Section 1462(a), Title 18, U.S. Code. The information, filed in the United States District Court for the Northern District of Ohio, Eastern Division, two days after respondent executed the plea agreement, alleged that the conduct giving rise to the charge occurred from February 18, 1998, through November 16, 2004.
{¶ 4} On October 3, 2008, respondent was sentenced to 15 months in prison and three years of supervised release. He also resigned his elected office. The parties have stipulated to respondent's conviction and sentence and have agreed that his conduct violated DR 1-102(A)(6). They have further stipulated that the appropriate sanction for this misconduct is a 12-month suspension from the practice of law with credit for the time served under the interim felony suspension.
{¶ 5} After we rejected the parties' consent-to-discipline agreement proposing the same sanction, a panel of the board conducted a hearing and heard testimony from respondent and one character witness. The panel also considered the parties' stipulated exhibits, including the information, plea agreement, and judgment in respondent's criminal case, as well as 21 letters attesting to respondent's good character.
{¶ 6} In addition to accepting the parties' stipulations, the board found that the obscene materials that were the subject of respondent's criminal conviction were stored at his home on personal computers that he owned. Respondent testified that the obscene materials were erotic photographs of adults and erotic stories that he and his wife had viewed in the privacy of their home. He claimed that his former wife broke into his home, seized the computers, and turned them over to the FBI to gain an advantage over him in their then pending divorce and child-custody litigation.
{¶ 7} Based upon the agreed stipulations and the testimony presented at the hearing, the panel and board found by clear and convincing evidence that respondent had violated DR 1-102(A)(6). We accept the board's findings of fact and misconduct.
Sanction
{¶ 8} When imposing sanctions for attorney misconduct, we consider relevant factors, including the ethical duties that the lawyer violated and the sanctions imposed in similar cases. Stark Cty. Bar Assn. v. Buttacavoli, 96 Ohio St.3d 424, 2002-Ohio-4743, 775 N.E.2d 818, ¶ 16. In making a final determination, we also weigh evidence of the aggravating and mitigating factors listed in Section 10(B) of the Rules and Regulations Governing Procedure on Complaints and Hearings Before the Board of Commissioners on Grievances and Discipline ("BCGD Proc.Reg."). Disciplinary Counsel v. Broeren, 115 Ohio St.3d 473, 2007-Ohio-5251, 875 N.E.2d 935, ¶ 21. We are mindful that the disciplinary process is designed not only to protect clients and the public from attorneys who are unworthy of the trust and confidence essential to the attorney-client relationship but also to ensure the administration of justice and to maintain the integrity of the legal profession as a whole. Disciplinary Counsel v. Hunter, 106 Ohio St.3d 418, 2005-Ohio-5411, 835 N.E.2d 707, ¶ 32.
{¶ 9} Respondent has entered a guilty plea and been convicted of knowingly using an interactive computer service to transport obscene materials in interstate or foreign commerce in direct contravention of a federal statute that carries a maximum sentence of five years in prison, a fine of up to $250,000, and three years of supervised release. Section 1462(a), Title 18, U.S. Code.
{¶ 10} No aggravating factors are present. In mitigation, the panel and board found that respondent has no prior disciplinary record, has fully cooperated with and made free disclosure in the disciplinary proceedings, has had other penalties or sanctions imposed upon him, and has not damaged any client with his misconduct. BCGD Proc.Reg. 10(B)(2)(a), (d), and (f). Respondent produced convincing evidence of his good character and reputation, including letters from more than 20 persons, including friends, employees, spiritual leaders, mental-health professionals, representatives of community organizations, and others who know him. BCGD Proc.Reg. 10(B)(2)(e). He has expressed genuine remorse for the harm he caused to his family and to the legal profession and has accepted responsibility for the consequences of his actions, which include bankruptcy, the loss of his job, and the loss of his license to practice law. The panel and board also noted that during his confinement, respondent read 146 books in an effort to prepare for his life after prison. Based upon these facts, both the panel and the board expressed their confidence that respondent has been rehabilitated.
{¶ 11} In support of its recommended sanction of a 12-month suspension with credit for time served under the interim felony suspension, the board cites five cases in which we imposed one-year suspensions from the practice of law. Although each of those cases involved a respondent convicted of a single federal offense, the offenses were all of a financial rather than a sexual nature, and the longest prison term imposed in those cases was four months. See Dayton Bar Assn. v. Bart (1997), 80 Ohio St.3d 538, 687 N.E.2d 681 (conviction for conspiracy to commit tax fraud resulting in a fine of $10,000 and three years of probation); Disciplinary Counsel v. Petroff (1999), 85 Ohio St.3d 396, 709 N.E.2d 111 (conviction for attempting to evade federal income taxes resulting in a sentence of four months' home detention, two years' probation, and an order to pay restitution); Disciplinary Counsel v. Miller (1997), 79 Ohio St.3d 115, 679 N.E.2d 1098 (conviction for aiding and abetting the filing of a false tax return resulting in a sentence of two years of probation, 400 hours of community service, and a donation of $3,000 to a community-service project); Disciplinary Counsel v. Lash (1993), 68 Ohio St.3d 12, 623 N.E.2d 28 (conviction for bank fraud resulting in a sentence of one year's probation, 100 hours of community service, and a $1,000 fine); Dayton Bar Assn. v. Seall (1998), 81 Ohio St.3d 280, 690 N.E.2d 1271 (conviction for conspiracy to commit tax fraud resulting in a four-month prison term followed by two years of supervised release).
{¶ 12} At the other end of the spectrum, in Disciplinary Counsel v. Ridenbaugh, 122 Ohio St.3d 583, 2009-Ohio-4091, 913 N.E.2d 443, we indefinitely suspended an attorney's license to practice law with credit for time served under an interim felony suspension for misconduct involving acts of voyeurism and use of child pornography. Similarly, we imposed an indefinite suspension in Columbus Bar Assn. v. Linnen, 111 Ohio St.3d 507, 2006-Ohio-5480, 857 N.E.2d 539, for an attorney who indecently exposed himself to at least 30 different women while photographing their reactions. {¶ 13} At first glance, the misconduct at issue in Ridenbaugh and Linnen appears to be far more serious than respondent's importation of obscenity depicting consenting adults. We note, however, that Ridenbaugh received a criminal sentence of 48 months in prison but served only 56 days before receiving judicial release and commencing a five-year term of community control. Linnen received a criminal sentence of 18 months of work release followed by five years of probation and was fined $3,000. But due to the closure of the work-release facility, he served only 12 months of his sentence before being released on probation. Respondent, in contrast, received and served a criminal sentence of 15 months in federal prison after pleading guilty to the transportation and importation of obscene matters over the Internet.
{¶ 14} Having reviewed the record, weighed the aggravating and mitigating factors, and considered the sanctions imposed for comparable conduct, we conclude that the recommended sanction fails to adequately address the seriousness of respondent's conduct. Moreover, permitting respondent to serve as an officer of this court while he remains on supervised release for violating the very laws he has been sworn to uphold would undermine the public's perception of and confidence in our justice system. Therefore, due to the severity of respondent's crime as measured by the duration of his prison term and subsequent supervised release, and in light of the mitigating factors cited by the board, the appropriate sanction for his misconduct falls between the one-year suspensions of Bart, Petroff, et al., and the indefinite suspensions of Ridenbaugh and Linnen. {¶ 15} Accordingly, Patrick Joseph O'Malley is suspended from the practice of law in Ohio for two years, with credit for the interim felony suspension commencing on December 4, 2008. However, as a condition to reinstatement, respondent must first complete his federal supervised release. Costs are taxed to respondent.
Judgment accordingly.
PFEIFER, O'CONNOR, O'DONNELL, and CUPP, JJ., concur.
LUNDBERG STRATTON and LANZINGER, JJ., dissent.
BROWN, C.J., not participating.
LUNDBERG STRATTON, J., dissenting.
{¶ 16} I disagree with the sanction imposed by the majority opinion. I would accept the board's recommendation that we suspend respondent from the practice of law for 12 months and credit him with time served under the interim suspension. Therefore, I respectfully dissent.
LANZINGER, J., Concurs in the foregoing opinion.
U.S. at 341,
106 S.Ct. 1092;
see also KRL II, 512 F.3d at 1189.
III
The application of these factors to the present case compels a determination that the officers reasonably relied on their superiors, the district attorney, and the magistrate to correct the alleged over breadth in the search warrant.
First, as this case comes to us, we accept that it was reasonable for the officers to apply for the warrant and that there was sufficient probable cause for the warrant to issue. In the district court, plaintiffs challenged whether the affidavit established probable cause to believe that Bowen could be found at the residence, but the district court denied that claim. On this interlocutory appeal from the district court's denial of qualified immunity, we accept the district court's determination that there was sufficient probable cause to allow the officer to apply for the nighttime search warrant and for the magistrate to issue the warrant.
Indeed, the decision to conduct a nighttime search of Mrs. Millender's home may be the most disturbing decision in this case, as Mrs. Millender appears to have had no connection with the underlying crime. Judge Fernandez, a member of the initial three-judge panel, recognized this in his concurring opinion, noting: "[w]hen I read and reread the warrant and the affidavit that supports it, I come away with the feeling that there is extremely little support for the search of a third person's home for all firearms and ammunition." Millender v. County of Los Angeles, 564 F.3d 1143, 1151 (9th Cir. 2009). Mrs. Millender's connection to Bowen appears to be that at one time she had been Bowen's foster mother. However, the district court held that the decision to conduct a nighttime search of the residence was reasonable, and accordingly, we view the warrant in that light.
Second, the warrants were facially valid. They adequately identified the location to be searched, the person to be arrested, and the items to be seized. Regardless of whether there was probable cause to search for firearms and indicia of gang membership, these limited items were properly identified on the face of the warrant.
The majority's concern with the "breadth" of the warrant is really a concern with whether there was probable cause to support the questioned provisions of the warrant. See Op. 1024, 1027-28. In the case relied upon by the majority, United States v. SDI Future Health, 568 F.3d 684 (9th Cir. 2009), we explained that for a warrant not to be "over-broad" there must be probable cause to seize the particular thing named in the warrant, and that this means "a fair probability that contraband or evidence of a crime will be found in a particular place, based on the totality of circumstances." Id. at 702-03 (quoting United States v. Diaz, 491 F.3d 1074, 1078 (9th Cir. 2007)). Probable cause is discussed later in this dissent.
Third, Officer Messerschmidt scrupulously followed the proper procedures in seeking the arrest and search warrants. The warrant affidavit was reviewed by his sergeant and Messerschmidt consulted a lieutenant. Moreover, the warrants were reviewed by a deputy district attorney before they were presented to, reviewed by, and signed by a magistrate. Messerschmidt followed the Supreme Court directions in Leon to seek the "detached scrutiny of a neutral magistrate." 468 U.S. at 913, 104 S.Ct. 3405.
Despite accepting that there were reasonable grounds for seeking the warrants, that there was sufficient probable cause to issue the search warrant, that the warrant was facially valid, and that the proper procedures were followed to have the warrants reviewed and approved by a neutral magistrate, the majority nonetheless concludes that the absence of probable cause for two sections of the warrant was so obvious that the officer is not entitled to qualified immunity. Despite our observation, and the Supreme Court's observation, that "reasonable minds frequently may differ on the question whether a particular affidavit establishes probable cause," KRL, 77 512 F.3d at 1189 (quoting Leon, 468 U.S. at 914, 104 S.Ct. 3405), the majority, in essence, considers the officer to have been incompetent or dishonest. Initially, it should be noted that the majority does not suggest that the officer was dishonest. Although the plaintiffs in the district court argued that the officer had failed to present the magistrate with all the relevant facts, the district court rejected those contentions, and there is nothing in the majority's opinion that resurrects that contention. Rather, the majority's opinion basically holds that the lack of relationship between the charged crime by Bowen and certain items described in the search warrant was so obvious that the officer may be held personally liable for having entertained a contrary thought. Of course, in light of my perspective on whether the search might include firearms other than the sawed-off shotgun, I think that the officer's inclusion of other firearms in the warrant, if not proper, was certainly objectively reasonable.
How could the officer have thought that he could search for indicia of gang membership? We must ask this question based on what the officer knew when he prepared his affidavit. Here, we agree that the officer knew that Bowen had fired a sawed-off shotgun at a person in public, that he was a felon, and that he had ties with a street gang. We also accept that the officer reasonably believed that Bowen was "hiding out" at the house on 120th Street. Why are these "facts" not sufficient to allow the officer initially to include a search for indicia of gang membership in his warrant application? Indeed, the affidavit in support of the warrant offered precisely this line of reasoning.
The officer set forth his specialized training in the field of gang-related crimes, and his participation in hundreds of interviews with individuals who had been sentenced or were about to be sentenced. He stated that these interviews provided him with "information pertaining to the manners in which gang-related assaults are committed, the motives for such assaults, and the concealment of weapon(s) used in such assaults." He further stated that his investigation had shown that Bowen had gang ties to the Mona Park Crip gang, and asserted that this fact in connection with the nature of the underlying crime justified night service of the warrant.
It appears that ultimately there was no evidence of a link between Bowen's assault on Kelly with a deadly weapon and his membership in a street gang, but the officer did not know this when he applied for the warrant. Given that Bowen was a felon, a gang member, and had used a sawed-off shotgun, the possession of which might well be illegal, the officer may reasonably have conceived of possible ties between the crime, the weapon and the gang. I do not disagree with the district court's and the majority's determination that nevertheless there was insufficient probable cause to support a warrant for indicia of gang membership. Rather, my point is only that it was reasonable for the officer to think that there might be sufficient probable cause, at least to include the request in the initial application that would then be reviewed by his superiors, a deputy district attorney and a magistrate. See KRL II, 512 F.3d at 1192 (indicating that officers should not be required "to question reasonable assessments of probable cause by government attorneys and magistrates").
The officer may well have made factual and legal mistakes. See Groh, 540 U.S. at 566-67, 124 S.Ct. 1284 (J. Kennedy, dissenting). He may have thought that the facts that Bowen was a felon, a gang member, and had committed an assault with a deadly weapon created probable cause to search for indicia for gang membership. He was wrong, but objectively viewed, his mistake was not objectively unreasonable.
Contrary to the majority's assertion, see Op. at 1033-35, this conclusion is not based on the dissenting opinion in Malley and Groh, but on the application of the standard set forth in those opinions. The determination of whether a "well trained officer would have known that the search was illegal despite the magistrate's authorization" ( Leon, 468 U.S. at 922 n. 23, 104 S.Ct. 3405), requires an evaluation of the particular facts of the case. In Malley, the Court did not determine whether "petitioner's conduct . . . was in fact objectively reasonable." 475 U.S. at 345 n. 8, 106 S.Ct. 1092. In Groh, the Court referred to this as "the particularity requirement." 540 U.S. at 563, 124 S.Ct. 1284. It is in the application of the "particularity requirement" to a specific fact situation that the dissents in Malley and Groh are relevant when evaluating whether the officer "should not have applied for the warrant." Malley, 475 U.S. at 345, 106 S.Ct. 1092.
One way of ascertaining whether a mistaken belief was reasonable is to compare it to other cases where we have found that an officer was not entitled to qualified immunity. I can find no clear precedent that supports the majority's conclusion. In Kow, 58 F.3d 423, "the lack of probable cause was so obvious that any reasonable officer would conclude that the warrant was facially invalid." KRL II, 512 F.3d at 1190. Similarly, the warrant in Stubbs, 873 F.2d 210, was facially invalid. KRL II, 512 F.3d at 1190. Perhaps the most analogous case is KRL II. There, we denied qualified immunity to Officer Hall because we found that " no reasonable officer could conclude that the discovery of a 1990 ledger and several checks showed that KRL had been primarily engaged in fraudulent activity since 1990." 512 F.3d at 1192 (quoting KRL I, 384 F.3d at 1117). However, our denial of qualified immunity was based on: (1) Hall's "leadership role in the overall investigation;" (2) our factual determination that "the discovery of a ledger and several checks predating the allegedly fraudulent activity by five years did not provide sufficient probable cause to search for documents dating back to 1990;" and (3) our conclusion that the warrant was obviously facially invalid. KRL II, 512 F.3d at 1192-93. Although Officer Messerschmidt may have been in charge of the investigation of Bowen, he did not have a leadership position similar to that held by Hall in KRL II. Furthermore, his incorrect factual conclusion was not as fafctched as that in issue in KRL II, and the warrant was not obviously facially invalid.
Unlike Officer Hall who executed the search at issue in KRL II, 384 F.3d at 1109, Officer Messerschmidt was assigned to traffic control on the street during the search of the Millender residence.
It might also be noted that in 2003, when Messerschmidt sought the warrant, neither of our opinions in KRL had issued. However, we had decided Ortiz, 887 F.2d 1366. In that case, the officer sought a warrant to search a home for weapons and explosives based on only four telephone calls by the same anonymous person. Id. at 1367. Nonetheless, while finding that there was no probable cause to support the warrant, we granted the police officer qualified immunity, commenting that an "error of constitutional dimensions may have been committed with respect to the issuance of the warrant, but it was the judge, not police officers who made the critical mistake." Id. at 1369. I would hold that here, as in Ortiz, the officer's "conduct was `sufficient to establish objectively reasonable behavior.'" Id. at 1371 (quoting United States v. Freitas, 856 F.2d 1425, 1431 (9th Cir. 1988)).
Moreover, the majority's opinion appears to extend unnecessarily the guiding Supreme Court opinions. In Malley, the Court stated that the question was "whether a reasonably well-trained officer in petitioner's position would have known that his affidavit failed to establish probable cause and that he should not have applied for the warrant." 475 U.S. at 345, 106 S.Ct. 1092. In Groh, the Court denied qualified immunity because the warrant "did not describe the items to be seized at all" and "was so obviously deficient that we must regard the search as Svarrantless' within the meaning of our case law." 540 U.S. at 558, 124 S.Ct. 1284. Here, there is really no question that there was probable cause to issue the warrant and that it was not facially invalid.
I recognize that each provision of a search warrant should be supported by probable cause. See In re Grand Jury Subpoenas Dated Dec. 10, 1987, 926 F.2d 847, 857 (9th Cir. 1991) (stating that "probable cause must exist to seize all the items of a particular type described in the warrant"). Nonetheless, we have held in appeals from suppression orders that evidence from valid portions of a warrant may be severed from invalid portions. Similarly, we should recognize that the lack of probable cause for one clause in an otherwise valid warrant does not mean that the officer's decision to seek the warrant, or even to include that clause in the warrant, was necessarily unreasonable.
In SDI Future Health, we "endorsed a doctrine of severance," noting that we had "previously allowed severance when a warrant lacked particularity because of some unduly broad language in the warrant." 568 F.3d at 707 (internal citation omitted). We commented that we do not allow severance where "the valid portion of the warrant is `a relatively insignificant part' of an otherwise invalid search." Id. (quoting Kow, 58 F.3d at 428). Here, the focus of the search was for Bowen and his sawed-off shotgun. It seems doubtful that had he or the shotgun been found, that evidence would have been suppressed because of the overbreadth of the warrant.
Of course, the operating premise remains that there was no probable cause to support the particular section of the warrant. What is at issue is only the second prong for qualified immunity, whether the officer, in good faith, could have relied on the magistrate.
Instead, at least where the warrant is supported by probable cause and is facially valid, but there is some question as to the sufficiency of evidence to support a section of the warrant, then absent some showing of bad faith on the part of the officer or of a failure to present all the relevant known facts to the magistrate ( see Leon, 468 U.S. at 923, 104 S.Ct. 3430), the officer should be allowed to rely on his superiors, the district attorney and the magistrate to correct any over-breadth. Certainly, that should be the case here, as the officer's affidavit clearly sets forth the basis on which the officer mistakenly thought he could seek a warrant to search for indicia of gang membership.
Moreover, the two provisions of the warrant at issue — those authorizing searches for firearms and for indicia of gang membership — do not appear to have been very important either when the warrant was initially sought or later. First, as noted, the primary purpose of the search was to arrest Bowen. Second, because the district court upheld the warrant's provision allowing the search for, and seizure of, indicia of home ownership, and because the majority concedes that the officers were entitled to search for disassembled parts of the sawed-off shotgun, the questioned provisions did not expand the actual scope of the search. Third, as the search only resulted in the seizure of Mrs. Millender's shotgun and a box of ammunition (and no indicia of gang membership), it does not appear that plaintiffs were really harmed by the search authorized by the questioned provisions of the warrant (as contrasted to the entry into the home and the general search). As Justice Kennedy noted in his dissent in Groh, the Supreme Court has stressed that "`the purpose of encouraging recourse to the warrant procedure' can be served best by rejecting overly technical standards when courts review warrants." 540 U.S. at 571, 124 S.Ct. 1284 (quoting Gates, 462 U.S. at 237, 103 S.Ct. 2317). Here, even accepting that there was no probable cause to support the questioned provisions of the warrant, because this defect did not expand the scope of the search nor cause any real harm to the plaintiffs, it should not defeat an otherwise appropriate grant of qualified immunity.
This conclusion is reinforced by the purpose of qualified immunity: to "amply" protect officers other than "the plainly in-competent or those who knowingly violate the law." KRL II, 512 F.3d at 1189 (quoting Malley, 475 U.S. at 341, 106 S.Ct. 1092). Here, as noted, there is no suggestion that the officer "knowingly violated the law." While the majority concludes that the officer should have known that the search warrant was too broad, the length it has to go to make that point suggests that an officer's failure to so reason cannot be considered plain incompetence. Indeed, the very fact that judges on this en banc panel disagree on this point, in itself, weighs in favor of granting qualified immunity.
IV
Last, but not least, I am concerned that the majority's parsing of the search warrant will lead to uncertainty and needless litigation. Denying qualified immunity where, as here, the defect in the warrant (a lack of probable cause for two sections of a warrant) did not expand the scope beyond what was constitutional and did not cause any real harm, creates considerable incentive to challenge all but the narrowest of warrants. Even if the overbreadth of a warrant does not produce any evidence and does not result in any real harm, a disgruntled person can overcome a claim of qualified immunity by showing that the officer did not have probable cause to support some part of the warrant. This seems contrary to the purpose of qualified immunity. See Malley, 475 U.S. at 341, 106 S.Ct. 1092.
Moreover, the approach may well interfere with a police officer's ability to properly protect the public and investigate crimes. Instead of investigating a possible relationship between an assault with a deadly weapon by a convicted gang member and the felon's street gang, the majority would hold the officer personally liable for not grasping that these facts did not support the issuance of a warrant for anything other than the felon and the particular weapon. This appears to be the type of "high level of generality" that Justice Thomas warned against in his dissent in Groh, 540 U.S. at 578, 124 S.Ct. 1284. Furthermore, this approach may well discourage officers from following up on leads that they would otherwise bring to the attention of their superiors for fear of personal liability if they unwittingly err in their judgment.
*
To recap, although I think that the officer could reasonably have sought to search for firearms other than the shotgun, I agree with the majority that there was not a sufficient showing of a relationship between the assault and gang membership to provide probable cause for the inclusion of indicia of gang membership in the search warrant.
But, applying the factors stressed by the Supreme Court and our court, I cannot conclude that the officer's inclusion of the provision in the warrant was so objectively unreasonable as to preclude reliance on the approval of his supervisors, the district attorney and the magistrate. It was reasonable for the officer to apply for the warrant, there was probable cause to issue the warrant, the warrant was not facially invalid, the warrant properly identified the limited matters to be seized, and the officer followed the proper procedures for seeking review by his superiors, a district attorney and a magistrate. Moreover, at least as to the questioned provisions, it does not appear that the officer hid any relevant information from his superiors or the magistrate and his affidavit plainly presented the grounds on which he sought indicia of gang membership. Furthermore, I have found no precedent that suggests that an officer may not rely on his superiors and the magistrate when he makes an honest mistake in thinking that there is probable cause to support a provision in an otherwise valid warrant. The majority's contrary conclusion is of little real benefit to the plaintiffs, and unfairly punishes a line officer for what, at most, was a failure on the part of his superiors, the deputy district attorney and the magistrate, to properly limit the warrant. Here, as in Ortiz, an "error of constitutional dimensions may have been committed with respect to the issuance of the warrant, but it was the judge, not the police officers who made the critical mistake." 887 F.2d at 1369. I would hold that the officer's application for a search warrant which included searching for other firearms and indicia of gang membership was not objectively unreasonable and that the officer is entitled to qualified immunity.
There is some irony in judges, who enjoy judicial immunity, holding that a line police officer may be personally liable for the breadth of a warrant when the system as set forth by the Supreme Court depends on the "detached scrutiny of a neutral magistrate" ( Leon, 468 U.S. at 913, 104 S.Ct. 3405), and the magistrate failed to properly perform his or her duty. The officer's mistake was clear from his affidavit. He thought that the facts that Bowen had committed an assault with a deadly weapon, and was a felon and a gang member were sufficient to allow for the search of indicia of gang membership. There is no suggestion that the officer hid anything from his superiors, the district attorney, or the magistrate. However, as the magistrate has judicial immunity, blame cascades down on the line officer. As Gilbert Sullivan noted in The Pirates of Penzance: "a policeman's lot is not a happy one."
SILVERMAN, Circuit Judge, with whom TALLMAN, Circuit Judge, joins, dissenting:
I join Parts II through IV of Judge Callahan's dissent, but write separately to emphasize several points.
The doctrine of qualified immunity "protects government officials from liability for good faith misjudgments and mistakes," and that is precisely the situation here. Clement v. Gomez, 298 F.3d 898, 903 (9th Cir. 2002). The judge issued a defective warrant and the deputies mistakenly relied on it, but their mistake was entirely in good faith. The deputies did not act until they obtained the warrant and they did only what the warrant authorized them to do. They did not engage in any form of misconduct. They did not rough-up the residents. They did not put false information in the affidavit, conceal exculpatory information, or seize property not mentioned in the four-corners of the warrant. This is not a case where police officers sought to evade the warrant requirement; to the contrary, they sought to comply with it. The record is totally devoid of any evidence that the deputies acted other than in good faith.
Qualified immunity protects from liability "all but the plainly incompetent and those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). Does the deputies' mistake rise to the level of plain incompetence or intentional violation of the law? I cannot imagine a clearer case of reasonable error than this one. In determining whether the deputies reasonably relied on the warrant, "all of the circumstances . . . may be considered." United States v. Leon, 468 U.S. 897, 923 n. 23, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). It is undisputed that the deputies knew Bowen to be a convicted felon with a very violent history, including convictions for assault with a deadly weapon and being a felon in possession of a firearm. They also knew that he reportedly had just shot at the victim several times with a short-barrel shotgun. As a convicted felon, Bowen was prohibited from possessing firearms. Under such circumstances, how can it be "entirely unreasonable" — not just a mistake but entirely unreasonable — for the deputies to have relied on a judge-signed warrant authorizing the seizure of all of Bowen's guns? See Ortiz v. Van Auken, 887 F.2d 1366, 1370 (9th Cir. 1989).
I also do not see how the deputies can be deemed to be plainly incompetent, or to have knowingly violated the law, for relying on the warrant's authorization to seize Mona Park Crip gang paraphernalia. The deputies had probable cause to believe both that Bowen was tied to the Mona Park Crip gang and that he was residing at the Millender residence. Had Mona Park Crip paraphernalia been found in close proximity to guns during the search of the Millender house — say, a gun concealed in Mona Park Crip clothing — such a discovery would have tended to prove that the guns were Bowen's and not the Millenders'. It is commonplace for search warrants to authorize the seizure of items that can help identify persons in control of the premises or contraband. See Ewing v. City of Stockton, 588 F.3d 1218, 1229 (9th Cir. 2009). The deputies' belief in the validity of this portion of the warrant was entirely reasonable.
Qualified immunity insulates police officers from the threat of personal liability so that they can "execute[their] office with the decisiveness and the judgment required by the public good." Schemer v. Rhodes, 416 U.S. 232, 240, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). The tradeoff for this perceived societal benefit is that some wrongs will go uncompensated. That is the nature of immunity, and it is a tradeoff adopted by the Supreme Court itself.