Augusta MILLENDER, Brenda Millender, William Johnson, Plaintiffs-Appellees, v. COUNTY OF LOS ANGELES, Los Angeles County Sheriffs Department, Sheriff Leroy Baca, Scott Walker, Rick Rector, Donald Nichiporuk, Richard Schlegel, Deputy Brice Stella, Jack Demello, David O'Sullivan, James Ritenour, Ian Stade, Robert J. Lawrence and Curt Messerschmidt, Defendants-Appellants, 564 F.3d 1143

Opinion by Judge Callahan; Concurrence by Judge Fernandez; Dissent by Judge Ikuta. CALLAHAN, Circuit Judge: This § 1983 action arises out of a nighttime search and seizure. In a comprehensive opinion, the district court granted qualified immunity to some defendants on some issues and denied it on others.

This interlocutory appeal by the City of Los Angeles and two deputy sheriffs, Detective Messerschmidt and Sergeant Lawrence, challenges only two aspects of the district court’s order: the denial of qualified immunity on the scope of the search warrant to cover (1) evidence of gang affiliation and (2) all firearms and firearms-related items. We reverse the district court’s denial of qualified immunity because we conclude that the officers were entitled to immunity under the second prong of the test set forth in Saucier v.

Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), as they reasonably relied on the approval of the warrant by a deputy district attorney and a judge. I Ms. Kelly had an ongoing relationship with Mr. Bowen, but decided to break off the relationship and move out of the residence on W. 97th Street because of Bowen’s violent temper and his physical assaults on her. She asked. for a sheriff deputy to watch her while she gathered some property from the residence. Two deputies accompanied Kelly to the residence, but were then called away to respond to an emergency.

As soon as the deputies left, Bowen appeared and attacked Kelly. Kelly managed to escape from Bowen and ran to her car. Bowen then retrieved a black sawed-off shotgun with a pistol grip from the residence. He-ran in front of Kelly’s car, pointed the gun at Kelly and stated that he would kill her if she tried to leave. Kelly leaned over in her seat and pushed the gas pedal all, the way down. Bowen jumped out of the way, fired a round at the ear blowing out the front left tire, and chased the car firing another four rounds. Kelly was able to drive away and locate a police officer.

Detective Messerschmidt was assigned to investigate the assault. He reviewed Bowen’s criminal history and determined that he had multiple felony and misdemeanor arrests. He met with Kelly and verified the facts of the, incident with her. Kelly told him that she thought that Bowen might be staying at his foster mother’s home on E. 120th Street. Kelly also stated that she had been to the foster mother’s (Mrs. Millender’

s) home with Bowen. Messerschmidt prepared an affidavit in support of a search warrant for the 120th Street residence. The affidavit states that Messerschmidt had 14 years’ experience as a peace officer, was a “Gang Investigator,” and had considerable training and experience as a gang detective. The affidavit recited Kelly’s representations of the assault, noting that Bowen had fired a black sawed-off shotgun with a pistol grip.

Messerschmidt stated that he had “conducted an extensive background search on the suspect by utilizing departmental records, state computer records, and other police agency records,” and that he had determined that Bowen resided at the 120th Street residence.

The affidavit further requested night service of the search warrant because the investigation had shown that Bowen “has gang ties to the Mona Park Crip gang” and because 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 for the deputy personnel serving the warrant, based on the element of surprise.” The warrant allowed for the search and seizure of (1) articles of personal property tending to establish the identity of persons in control of the premises, (2) all firearms and firearm-related items, and (3) articles of evidence showing, or relevant to, gang membership.

The search warrant was reviewed by a sergeant, a police lieutenant, and a deputy district attorney, before it was presented to, and signed by, a judge. The warrant was served at 5:00 a.m. on November 6, 2003. Within seconds of announcing their presence, the deputies broke into the front window and front door. Upon entering the house, the deputies encountered Mrs. Millender (who was in her seventies), her daughter and grandson. They followed the deputies’ instructions and went outside pending the completion of the search. The deputies did not find Bowen or the shotgun at the residence.

The search did result in the seizure of Mrs. Millender’s personal shotgun (Mossberg 12 gauge, black with a wood stock), a State of California Social Services letter addressed to Bowen, and a box of .45-caliber ammunition. Mrs. Millender, her daughter and grandson (sometimes referred to as plaintiffs) filed this action in the District Court for the Central District of California. The complaint named the County of Los Angeles, the sheriffs department, the sheriff, and a number of individual deputies as defendants.

It contained several claims under 42 U.S.C. § 1983 for alleged violations of the Fourth and Fourteenth Amendment and for conspiracy to deprive plaintiffs of their civil rights based on their race. The complaint also set forth supplemental state claims. II The parties filed cross-motions for

summary judgment. The district court found that the warrant was facially valid, that Messerschmidt’s conduct was reasonable, that there was probable cause to believe Bowen was at the residence, and that the affidavit adequately supported nighttime service. These determinations are not in issue on appeal. The district court then addressed the scope of the warrant.

Three aspects of the warrant were challenged: (1) the seizure of all firearms and firearm-related items; (2) the seizure of articles of evidence showing, or relevant to, gang membership; and (3) the seizure of articles of personal property tending to establish the identity of persons in control of the premises. The district court found that the warrant was overbroad in two respects: First, as to Plaintiffs’ contentions regarding the search for firearms, it is undisputed that:

(1) Bowen was accused of assaulting Kelly with a specifically-described sawed-off shotgun; (2) that Kelly gave Defendants a photograph of Bowen with the shotgun; and (3) that the affidavit did not mention any other weapons or crimes. Defendants argue that, even so, the warrant was reasonably specific, because “any caliber of shotgun or receipts would show possession of and/or purchase of guns.” This argument is nonsensical and unpersuasive. The crime specified here was a physical assault with a very specific weapon.

Therefore, defendants were not entitled to search for all firearms and the warrant was overbroad in this respect. Second, Plaintiffs argue that the authorization to seize gang-related information was overbroad, because, as Messerschmidt admitted, there is no evidence that the crime at issue was gang-related. In response, Defendants make the unsupported statement that “[t]he photos sought re gang membership could be linked with other gang members, evidencing criminal activity as gang affiliation is an enhancement to criminal charges.” This argument is unconvincing.

Plaintiffs are correct that California Penal Code § 186.22(b)(1) limits gang enhancements to cases where the underlying crime was gang-related.... Defendants do not point to any other basis for their argument or make any additional arguments. Therefore, this court finds that the warrant is over-broad in its authorization to seize gang-related items. The district court rejected plaintiffs’ challenge to the warrant’s authorization to seize evidence concerning control of the premises.

It held that the fact that defendants had a picture of Bowen with the shotgun did not prevent them from seeking additional ways of tying Bowen to the weapon. It noted that even if the defendants knew that Mrs. Millender owned the residence, Bowen could also have controlled the premises to the extent that he could have stored a weapon there. In addition, the district court noted that although defendants contended that an over-broad warrant may be valid if the supporting affidavit provides more guidance, here the affidavit was no more specific than the warrant.

The district court did not specifically address the second prong of the Saucier test: that the “contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Saucier, 533 U.S. at 202, 121 S.Ct. 2151 (internal quotation marks and citation omitted).

It only noted that defendants had “made no additional arguments as to why, even if the warrant was overbroad, the officers acted reasonably, without knowing that what they were doing was wrong.” Ill We recently set forth our jurisdiction and the standard of review on an appeal such as this one in KRL v. Estate of Moore, 512 F.3d 1184 (9th Cir.2008). We stated: Although a denial of

summary judgment is ordinarily not an appealable interlocutory order, we have jurisdiction in this case because the motion for

summary judgment is based on qualified immunity. Lee v. Gregory, 368 F.3d 931, 932 (9th Cir.2004). We review the district court’s denial of

summary judgment de novo. Id. Our jurisdiction is limited to questions of law, and does not extend to qualified immunity claims involving disputed issues of material fact. Jeffers v. Gomez, 267 F.3d 895, 903 (9th Cir.2001). Where disputed facts exist, we assume that the version of the material facts asserted by Plaintiffs, as the non-moving party, is correct. Id. 512 F.3d at 1188-89. As we noted in KRL, where a constitutional violation occurs, a police officer is entitled to qualified immunity if he acted reasonably under the circumstances. KRL, 512 F.3d at 1189. The Supreme Court in Saucier v.

Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272, outlined a two-step approach to qualified immunity. The first inquiry is whether “[t]aken in the light most favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional right?” Id. at 201, 121 S.Ct. 2151. If the answer to the first inquiry is yes, the second inquiry is whether the right was clearly established: in other words, “whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Id. at 202, 121 S.Ct. 2151.

In KRL, we further explained the impact of a magistrate’s approval on officer’s belief that a warrant is valid. Qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.” Lee, 363 F.3d at 934 (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 ... (1986)). In United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 ... (1984), the Supreme Court recognized that “[reasonable minds frequently may differ on the question whether a particular affidavit establishes probable cause.... ” Id. at 914....

Inadequate probable cause for a warrant does not necessarily render an officer’s reliance unreasonable because the existence of probable cause is often a difficult determination. Ortiz v. Van Auken, 887 F.2d 1366, 1370-71 (9th Cir.1989).

Rather, “the preference for warrants is most appropriately effectuated by according ‘great deference’ to a magistrate’s determination.” Leon, 468 U.S. at 914, 104 S.Ct. 3430 When reasonable minds could differ as to the existence of probable cause, approval of a warrant by a government attorney and ratification by a neutral and detached magistrate usually establishes objectively reasonable reliance. Ortiz, 887 F.2d at 1369-70. Courts treat magistrates as more qualified than police officers to make determinations of probable cause. See, e.g., Malley, 475 U.S. at 346 n. 9, 106 S.Ct. 1092....

As a general matter, the Constitution does not require officers to “second-guess the legal assessments of trained lawyers.” Amsberg v. United States, 757 F.2d 971, 981 (9th Cir.1985); see also Leon, 468 U.S. at 921 ... (“In the ordinary case, an officer cannot be expected to question the magistrate’s probable-cause determination or his judgment that the form of the warrant is technically sufficient.”).

Officers lose their shield of qualified immunity “[o]nly where the warrant application is so lacking in indicia of probable cause as to render official belief in its existence unreasonable.” Malley, 475 U.S. at 344-45,106 S.Ct. 1092 ... (citing Leon, 468 U.S. at 923 ...). In other words, an officer who prepares or executes a warrant lacking probable cause is entitled to qualified immunity unless “no officer of reasonable competence would have requested the warrant.” Id. at 346 n. 9....

When a warrant is so bereft of probable cause that official reliance is unreasonable, the officer executing the warrant “cannot excuse his own default by pointing to the greater incompetence of the magistrate.” Id. 512 F.3d at 1189-90. IV The district court, as required by the law in effect at the time, properly considered whether the warrant was over-broad- with respect to firearms and evidence showing gang membership. On January 21, 2009, the Supreme Court in Pearson v.

Callahan, — U.S. -, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009), held that “judges of the district courts and the courts of appeals should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” Id. at 818. It further stated that “the judges of the district courts and the courts of appeals are in the best position to determine [what] order of decisionmaking will best facilitate the fair and efficient disposition of each case.” Id. at 821.

We need not review the district court’s finding that the warrant was overbroad because we determine that even if it were overbroad, Messerschmidt and Lawrence are entitled to qualified immunity under the second prong of the Saucier test. V • The record shows that Messerschmidt and Lawrence reasonably relied on the approval of the search warrant by a deputy district attorney and a judge. Although they may not have stressed the argument in the district court, our review of ■ the record shows that the deputies raised their reliance on the approval of the search warrant in their motion for

summary judgment. Moreover, the record shows that the warrant was presented to and signed by a state court judge, and plaintiffs do not allege that there were any irregularities in the processing of the warrant. Accordingly, we consider the deputies’ immunity under the second prong of the Saucier test, assuming the version of the material facts asserted by the plaintiffs. KRL, 512 F.3d at 1189. Messerschmidt’s affidavit stated that Bowen had engaged in an assault with a deadly weapon, had ties with a gang, and probably had a criminal record.

Accordingly, an officer may reasonably have thought that the warrant could include the search for, and seizure of, firearms other than the sawed-off shotgun, as well as evidence relating to gang affiliation. The record, even read in a light most favorable to plaintiffs is not “so lacking in indicia of probable cause as to render an officer’s belief in its existence ‘entirely unreasonable.’ ” Ortiz v. Van Auken, 887 F.2d 1366, 1370-71 (quoting United States v. Leon, 468 U.S. 897, 923, 104 S.Ct. 3405 (1984)).

The reasonableness of the officers’ perspective is clear when this case is compared to the cases cited in KRL, in which officers were not entitled to rely on the approval of an attorney and a magistrate. Id. In United States v. Kow, 58 F.3d 423, 428 (9th Cir.1995), the warrant “listed entire categories of documents to be seized, encompassing essentially all documents on the premises.” In United States v.

Stubbs, 873 F.2d 210, 212 (9th Cir.1989) the warrant “contained no reference to criminal activity, and merely described broad classes of documents.” Although the warrant in this case may have been overbroad, it was limited to firearms and firearm-related items and evidence related to gang membership. The inclusion of these enumerated materials arose out of the officer’s particular concerns with Bowen, if not with the specific crime under investigation.

In any event, the deputies could reasonably have expected the deputy attorney general and the state judge to limit the warrant if it sought items for which there was no probable cause. In KRL, we reiterated the Supreme Court’s perspectives that “[rjeasonable minds frequently may differ on the question whether a particular affidavit establishes probable cause,” and that “the preference for warrants is most appropriately effectuated by according ‘great deference’ to a magistrate’s determination.” KRL, 512 F.3d at 1189 (quoting Leon, 468 U.S. at 914, 104 S.Ct. 3405).

There is nothing in this record to support a departure from this approach. Accordingly, as the record shows that Messerschmidt and Lawrence could reasonably rely on the deputy district attorney and the judge to limit the scope of the warrant to items covered by the showing of probable cause, their reliance on the warrant as signed by the judge was reasonable and they are entitled to qualified immunity under the second prong of Saucier, 533 U.S. at 202, 121 S.Ct. 2151.

In other words, we do not think that here it would have been “clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Id. VI In sum, accepting, but not ruling on, the district court’s determination that the warrant was overbroad, see Pearson, — U.S. -, 129 S.Ct. 808, 172 L.Ed.2d 565, we determine that on this record, even when viewed in a light most favorable to plaintiffs, the deputies could reasonably defer to the review of the warrant by a deputy district attorney and a judge. See Leon, 468 U.S. at 921, 104 S.Ct. 3405; KRL, 512 F.3d at 1189.

Accordingly, Detective Messerschmidt and Sergeant Lawrence are entitled to qualified immunity for the over-breadth of the warrant under the second prong of the Saucier test. See Saucier, 533 U.S. at 202, 121 S.Ct. 2151. The district court’s denial of qualified immunity is VACATED, and the case is REMANDED with instructions to grant Detective Messerschmidt and Sergeant Lawrence qualified immunity on the challenged scope of the warrant. .

Specifically, the search warrant allowed the search and seizure of: 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 search warrant also allowed the search and seizure of: 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 persons 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. . Bowen was arrested two weeks later. In the middle of the day, Messerschmidt knocked at the door of a motel room.

He was admitted by Bowen's wife and found Bowen hiding under the bed. . Plaintiffs do not challenge this decision in their appeal. . Although the affidavit did not state that Bowen had a criminal record, the existence of such a record is a reasonable inference from the affidavit’s statements concerning the nature of the crime and the weapon used, as well as its representation that Bowen “has gang ties to the Mona Park Crip gang based on information provided by the victim and the cal-gang data base.”