                 FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

AUGUSTA MILLENDER, BRENDA             
MILLENDER, WILLIAM JOHNSON,
              Plaintiffs-Appellees,
               v.
COUNTY OF LOS ANGELES, LOS
ANGELES COUNTY SHERIFF’S                    No. 07-55518
DEPARTMENT, SHERIFF LEROY BACA,
SCOTT WALKER, RICK RECTOR,                   D.C. No.
                                          CV-05-02298-DDP
DONALD NICHIPORUK, RICHARD
                                             OPINION
SCHLEGEL, DEPUTY BRICE STELLA,
JACK DEMELLO, DAVID O’SULLIVAN,
JAMES RITENOUR, IAN STADE,
ROBERT J. LAWRENCE AND CURT
MESSERSCHMIDT,
           Defendants-Appellants.
                                      
       Appeal from the United States District Court
          for the Central District of California
       Dean D. Pregerson, District Judge, Presiding

                  Argued and Submitted
          October 21, 2008—Pasadena, California

                    Filed May 6, 2009

Before: Ferdinand F. Fernandez, Consuelo M. Callahan and
             Sandra S. Ikuta, Circuit Judges.

               Opinion by Judge Callahan;
             Concurrence by Judge Fernandez;
                 Dissent by Judge Ikuta


                           5261
5264         MILLENDER v. COUNTY OF LOS ANGELES




                         COUNSEL

Eugene P. Ramirez (argued) and Julie M. Fleming of Man-
ning & Marder, Kass, Ellrod, Ramirez, LLP, of Los Angeles,
California for the defendants-appellants.

Olu K. Orange (argued), Robert Mann, and Donald W.
Cook of Los Angeles, California for the plaintiffs-appellees.


                         OPINION

CALLAHAN, Circuit Judge:

   This § 1983 action arises out of a nighttime search and sei-
zure. 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 Messersch-
midt 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 immu-
nity under the second prong of the test set forth in Saucier v.
Katz, 533 U.S. 194, 201 (2001), as they reasonably relied on
the approval of the warrant by a deputy district attorney and
a judge.
             MILLENDER v. COUNTY OF LOS ANGELES             5265
                                I

   Ms. Kelly had an ongoing relationship with Mr. Bowen, but
decided to break off the relationship and move out of the resi-
dence on W. 97th Street because of Bowen’s violent temper
and his physical assaults on her. She asked for a sheriff dep-
uty 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 car 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 deter-
mined 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. Mil-
lender’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
5266             MILLENDER v. COUNTY OF LOS ANGELES
on the suspect by utilizing departmental records, state com-
puter records, and other police agency records,” and that he
had determined that Bowen resided at the 120th Street resi-
dence.

   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) arti-
cles of personal property tending to establish the identity of
persons in control of the premises, (2) all firearms and
firearm-related items,1 and (3) articles of evidence showing,
or relevant to, gang membership.2 The search warrant was
  1
   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 ammuni-
     tion, 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 pos-
     session 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.
  2
    The search warrant also allowed the search and seizure of:
      Articles of evidence showing street gang membership or affilia-
      tion with any Street Gang to include but not limited to any refer-
      ence to “Mona Park Crips,” including writings or graffiti
      depicting gang membership, activity or identity. Articles of per-
      sonal property tending to establish the identity of persons in con-
      trol 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, affilia-
      tion or membership with the “Mona Park Crips” street gang.
               MILLENDER v. COUNTY OF LOS ANGELES                 5267
reviewed by a sergeant, a police lieutenant, and a deputy dis-
trict 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 comple-
tion of the search.

   The deputies did not find Bowen or the shotgun at the resi-
dence. 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.3

   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 sheriff’s department, the sher-
iff, and a number of individual deputies as defendants. It con-
tained 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 prob-
  3
   Bowen was arrested two weeks later. In the middle of the day, Messer-
schmidt knocked at the door of a motel room. He was admitted by
Bowen’s wife and found Bowen hiding under the bed.
5268         MILLENDER v. COUNTY OF LOS ANGELES
able cause to believe Bowen was at the residence, and that the
affidavit adequately supported nighttime service. These deter-
minations 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 member-
ship; and (3) the seizure of articles of personal property tend-
ing 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 shot-
    gun; 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 evi-
    dence that the crime at issue was gang-related. In
    response, Defendants make the unsupported state-
    ment that “[t]he photos sought re gang membership
    could be linked with other gang members, evidenc-
               MILLENDER v. COUNTY OF LOS ANGELES               5269
      ing 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 argu-
      ments. Therefore, this court finds that the warrant is
      overbroad in its authorization to seize gang-related
      items.

   The district court rejected plaintiffs’ challenge to the war-
rant’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.4 In addi-
tion, the district court noted that although defendants con-
tended that an overbroad warrant may be valid if the
supporting affidavit provides more guidance, here the affida-
vit 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 under-
stand that what he is doing violates that right.” Saucier, 533
U.S. at 202 (internal quotation marks and citation omitted). It
only noted that defendants had “made no additional argu-
ments as to why, even if the warrant was overbroad, the offi-
cers acted reasonably, without knowing that what they were
doing was wrong.”
  4
   Plaintiffs do not challenge this decision in their appeal.
5270         MILLENDER v. COUNTY OF LOS ANGELES
                               III

  [1] 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 ordinar-
    ily not an appealable interlocutory order, we have
    jurisdiction in this case because the motion for sum-
    mary judgment is based on qualified immunity. Lee
    v. Gregory, 363 F.3d 931, 932 (9th Cir. 2004). We
    review the district court’s denial of summary judg-
    ment de novo. Id. Our jurisdiction is limited to ques-
    tions of law, and does not extend to qualified
    immunity claims involving disputed issues of mate-
    rial 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.

  [2] 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,
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 offi-
cer’s conduct violated a constitutional right?” Id. at 201. 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 con-
duct was unlawful in the situation he confronted.” Id. at 202.

  In KRL, we further explained the impact of a magistrate’s
approval on officer’s belief that a warrant is valid.
         MILLENDER v. COUNTY OF LOS ANGELES                5271
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 . . . (1986)). In United
States v. Leon, 468 U.S. 897 . . . (1984), the Supreme
Court recognized that “[r]easonable minds fre-
quently may differ on the question whether a particu-
lar 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 appro-
priately effectuated by according ‘great deference’ to
a magistrate’s determination.” Leon, 468 U.S. at 914
....

When reasonable minds could differ as to the exis-
tence 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 . . . .
As a general matter, the Constitution does not
require officers to “second-guess the legal assess-
ments of trained lawyers.” Arnsberg 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
5272         MILLENDER v. COUNTY OF LOS ANGELES
    belief in its existence unreasonable.” Malley, 475
    U.S. at 344-45 . . . (citing Leon, 468 U.S. at 923 . . .).
    In other words, an officer who prepares or executes
    a warrant lacking probable cause is entitled to quali-
    fied immunity unless “no officer of reasonable com-
    petence would have requested the warrant.” Id. at
    346 n. 9 . . . . When a warrant is so bereft of proba-
    ble 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

   [3] The district court, as required by the law in effect at the
time, properly considered whether the warrant was overbroad
with respect to firearms and evidence showing gang member-
ship. On January 21, 2009, the Supreme Court in Pearson v.
Callahan, 129 S. Ct. 808 (2009), held that “judges of the dis-
trict 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 dis-
trict courts and the courts of appeals are in the best position
to determine [what] order of decisionmaking will best facili-
tate the fair and efficient disposition of each case.” Id. at 821.
We need not review the district court’s finding that the war-
rant was overbroad because we determine that even if it were
overbroad, Messerschmidt and Lawrence are entitled to quali-
fied immunity under the second prong of the Saucier test.

                                V

   [4] The record shows that Messerschmidt and Lawrence
reasonably relied on the approval of the search warrant by a
                MILLENDER v. COUNTY OF LOS ANGELES                     5273
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 process-
ing of the warrant. Accordingly, we consider the deputies’
immunity under the second prong of the Saucier test, assum-
ing the version of the material facts asserted by the plaintiffs.
KLR, 512 F.3d at 1189.

   [5] 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.5 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 affili-
ation. The record, even read in a light most favorable to plain-
tiffs is not “so lacking in indicia of probable cause as to
render an officer’s belief in its existence ‘entirely unreason-
able.’ ” Ortiz v. Van Auken, 887 F.3d 1366, 1370-71 (quoting
United States v. Leon, 468 U.S. 897, 923 (1984).

   [6] The reasonableness of the officers’ perspective is clear
when this case is compared to the cases cited in KLR, 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 docu-
ments on the premises.” In United States v. Stubbs, 873 F.2d
  5
    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.”
5274         MILLENDER v. COUNTY OF LOS ANGELES
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 particu-
lar 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.

   [7] In KLR, we reiterated the Supreme Court’s perspectives
that “[r]easonable minds frequently may differ on the question
whether a particular affidavit establishes probable cause,” and
that “the preference for warrants is most appropriately effec-
tuated by according ‘great deference’ to a magistrate’s deter-
mination.” KLR, 512 F.3d at 1189 (quoting Leon, 468 U.S. at
914). 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 rea-
sonable and they are entitled to qualified immunity under the
second prong of Saucier, 533 U.S. at 202. In other words, we
do not think that here it would have been “clear to a reason-
able 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,
129 S. Ct. 808, 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 dep-
uty district attorney and a judge. See Leon, 468 U.S. at 921;
             MILLENDER v. COUNTY OF LOS ANGELES              5275
KRL, 512 F.3d at 1189. Accordingly, Detective Messersch-
midt and Sergeant Lawrence are entitled to qualified immu-
nity for the overbreadth of the warrant under the second prong
of the Saucier test. See Saucier, 533 U.S. at 202. 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.



FERNANDEZ, Circuit Judge, concurring:

   I concur, but in light of the strong majority opinion and the
strong dissent, I should explain further.

   Although we need not decide the issue, I am satisfied that
the warrant was overbroad and that the search, therefore, vio-
lated the constitutional rights of the Millenders. But, of
course, the officers did not merely act on their own. They had
a warrant. In seeking the warrant, they had asked a superior
officer to review the affidavit and the proposed scope of the
warrant. It was approved. It was then submitted to a deputy
district attorney, who also approved it. Then, of course, it was
submitted to a judge for his approval. He signed it with no
apparent caveats or misgivings. In other words, in that sense,
the officers did precisely what we want them to do. As we
said over fifteen years ago in a slightly different context,
where a judicially issued warrant was not involved:

    The appellants did not simply act rashly and without
    regard to [a person’s] legal or constitutional rights.
    Rather, they did just what the courts encourage offi-
    cials to do. They sought an expert legal opinion
    before they acted.

       We have previously had occasion to comment
    upon that kind of responsible behavior by police
    officials.
5276         MILLENDER v. COUNTY OF LOS ANGELES
    ....

       In fine, when the employees of LAPD were faced
    with what can only be called a complex and uncer-
    tain legal issue, they sought legal advice and then
    followed that advice. It would be counterproductive
    and even oppressive were we to find that they can
    now be held liable in damages for their actions. This
    is not to say that officials can ignore clear constitu-
    tional rules and hide behind the advice of an attor-
    ney.

Los Angeles Police Protective League v. Gates, 907 F.2d 879,
888 (9th Cir. 1990) (citations omitted).

   Not surprisingly, that approach has been applied when a
warrant has been obtained. KRL v. Estate of Moore, 512 F.3d
1184, 1189-90 (9th Cir. 2008) (citations omitted). In other
words, we are much inclined to protect officers when they
seek the aid of the court before they act; that alone advances
the purposes of the Fourth Amendment. See Ortiz v. Van
Auken, 887 F.2d 1366, 1368-71 (9th Cir. 1989). In sum “[o]ur
cases repeatedly emphasize [the] distinction between warrants
with disputable probable cause and warrants so lacking in
probable cause that no reasonable officer would view them as
valid.” KRL, 512 F.3d at 1190; see also United States v.
Stubbs, 873 F.2d 210, 212 (9th Cir. 1989).

   Here, as I see it, we are at the outer limits of our tolerance
in that respect. When 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 per-
son’s home for all firearms and ammunition. The weapon
involved in the offense in question was identified with preci-
sion and the officers even had photographs of it. Similarly,
although Bowen was, indeed, a bad man and a gang member,
it is a little difficult to justify the search of a third person’s
home for gang membership information: gangs had nothing
              MILLENDER v. COUNTY OF LOS ANGELES               5277
whatsoever to do with the domestic assault that is in question
here. Of course, I recognize, that the officers did not know
that they were searching a third person’s home; they thought
they were searching Bowen’s home also.

   In short, courts are concerned about the burdens imposed
upon police officers in this kind of situation and are con-
strained to feel empathy for their plight. On the other hand,
courts are concerned about the plight of decent citizens like
the Millenders when governmental authorities smash their
way into a home on a quest for information regarding a per-
son who, as it turns out, does not even reside in the home.
Thus, in order to reify our concern for the officers we must
embrace the protections thrown up around them in the warrant
area with enthusiasm rather than with velleity. However, we
must also protect the sanctity of the home1 and assure that no
representative of state power simply hides behind the mis-
deeds or misdirections of other representatives, lest we
become a kakistocracy.2 On this record, the former concerns
prevail.

   I, thus, concur in the majority opinion. I do so with deep
regret that with respect to the warrant the legal system failed
the Millenders, but we cannot visit the cost of that failure
upon the heads of the officers.



IKUTA, Circuit Judge, dissenting:

   Jerry Bowen is not a model citizen. He is allegedly a mem-
ber of a street gang. He punched, bit, and then shot at his girl-
friend when she understandably tried to leave him.
  1
   See Los Angeles Police Protective League, 907 F.2d at 884.
  2
   See Grossman v. City of Portland, 33 F.3d 1200, 1209-10 (9th Cir.
1994).
5278        MILLENDER v. COUNTY OF LOS ANGELES
   However, on October 10, 2003, Jerry Bowen’s assault on
Shelly Kelly was incontrovertibly not related to his gang
activity. Moreover, Kelly had identified the weapon used in
the crime: a black pump-gauge sawed-off shotgun with a pis-
tol grip. Indeed, Kelly even gave the police a photograph of
Bowen holding the shotgun.

  Instead of seeking a warrant for the sawed-off shotgun,
Officer Messerschmidt sought a warrant for:

    All handguns, rifles or shotguns of any caliber, or
    any firearms capable of firing ammunition or fire-
    arms or devices modified or designed to allow it to
    fire ammunition. All caliber of ammunition, miscel-
    laneous gun parts, gun cleaning kits, holsters which
    could hold or have held any caliber handgun being
    sought. Any receipts or paperwork, showing the pur-
    chase, 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.

    Articles of evidence showing street gang member-
    ship 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 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. Addition-
    ally to include any gang indicia that would establish
    the persons being sought in this warrant, affiliation
             MILLENDER v. COUNTY OF LOS ANGELES           5279
    or membership with the “Mona Park Crips” street
    gang.

Two statements in Messerschmidt’s affidavit provided the
sole grounds for this extraordinarily broad warrant: (1) Bowen
was “a known Mona Park Crip gang member” and (2)
Messerschmidt “believe[d] 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 fur-
ther crimes being committed.”

   Because neither of these statements provided a “substantial
basis” for demonstrating “a fair probability that contraband or
evidence of a crime will be found in a particular place,” Illi-
nois v. Gates, 462 U.S. 213, 238 (1983), no officer of reason-
able competence could have thought this affidavit established
probable cause to search for the items listed in the warrant,
see Malley v. Briggs, 475 U.S. 335, 341 (1986) (in determin-
ing whether an officer is eligible for qualified immunity,
“[t]he question is 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”). Therefore, I would affirm the dis-
trict court’s denial of qualified immunity, and I respectfully
dissent.

                               I

   Viewing the evidence in the light most favorable to the
Millenders (as we must when reviewing this appeal from the
denial of the officers’ motion for summary judgment based on
qualified immunity), no reasonably well-trained officer in
Messerschmidt’s position could have concluded that there
was probable cause to search for the wide variety of firearms,
firearm accessories, and gang paraphernalia listed in the
search warrant.
5280         MILLENDER v. COUNTY OF LOS ANGELES
   Probable cause exists when an affidavit demonstrates a fair
probability that each of the items sought in the search warrant
is contraband or evidence of a crime. See VonderAhe v. How-
land, 508 F.2d 364, 369 (9th Cir. 1974); In re Grand Jury
Subpoenas Dated Dec. 10, 1987, 926 F.2d 847, 857 (9th Cir.
1991) (holding that “probable cause must exist to seize all the
items of a particular type described in the warrant”).

   The affidavit must set forth specific facts that make the
search reasonable. A warrant may not “rest upon mere affir-
mance of suspicion or belief without disclosure of supporting
facts or circumstances.” Nathanson v. United States, 290 U.S.
41, 47 (1933); see also Gates, 462 U.S. at 239 (citing Nathan-
son with approval and stating that a “bare-bones” affidavit
comprised of mere conclusory statements is an inadequate
basis for a probable cause determination); Lee Art Theatre,
Inc. v. Virginia, 392 U.S. 636, 637 (1968) (holding that an
affidavit that merely stated the officer’s belief that movies and
books to be seized were obscene, and therefore illegal, was
insufficient to establish probable cause). Moreover, the search
warrant must be “carefully tailored to its justifications” in
order to ensure that the search “will not take on the character
of the wide-ranging exploratory searches the Framers
intended to prohibit.” Maryland v. Garrison, 480 U.S. 79, 84
(1987).

                               II

   The affidavit in this case did not allege facts making it rea-
sonable to search for the broad array of firearms and firearm-
related equipment listed in the search warrant. The affidavit
established probable cause to search for a “black sawed off
shotgun with a pistol grip” because it recounted Bowen’s
attack on Kelly with that weapon. But the affidavit did not
recite any facts indicating that the broad array of other items
sought (including “[a]ll handguns, rifles or shotguns of any
caliber, or any firearms capable of firing ammunition or fire-
arms or devices modified or designed to allow it to fire
             MILLENDER v. COUNTY OF LOS ANGELES            5281
ammunition”) were used in, or were evidence of, the crime
under investigation. See United States v. Rubio, 727 F.2d 786,
793 (9th Cir. 1983) (where a warrant seeks evidence relevant
to proving a criminal violation, the affidavit must establish
probable cause to believe there is a connection between the
evidence sought and a violation of the criminal statute at
issue).

   The affidavit contains the conclusory statement that “the
recovery of the weapon could be invaluable in the successful
prosecution of the suspect involved in this case, and the cur-
tailment of further crimes being committed.” No reasonable
officer could think this statement is enough to support proba-
ble cause. Mere possession of firearms is not, generally
speaking, a crime, cf. District of Columbia v. Heller, 128
S. Ct. 2783, 2799 (2008), and a reasonable officer in Messer-
schmidt’s position would know that the only weapon at issue
in the case was the sawed-off shotgun depicted in the photo-
graph and specifically described by Kelly, see VonderAhe,
508 F.2d at 370 (where “the government knew exactly what
it needed and wanted” in search for particular type of record,
a warrant seeking all types of records is prohibited).

   Nor did the affidavit demonstrate a fair probability that the
gang paraphernalia sought in the warrant was an instrumental-
ity or evidence of the crime under investigation. The affidavit
stated only that Bowen was “a known Mona Park Crip gang
member.” Gang paraphernalia may evidence membership in
a gang, but such membership is not itself evidence of a crime,
absent an allegation that the gang is wholly criminal or that
there is some nexus between Bowen’s criminal activity and
his membership in the gang. See Rubio, 727 F.2d at 793; see
also Warden v. Hayden, 387 U.S. 294, 307 (1967). The affi-
davit does not include such allegations. Rather, the affidavit
describes the crime as a “spousal assault,” and states that
Kelly had decided to end her dating relationship with Bowen
due to his temper, and had called the officers “to watch over
her while she gathered some of her property from her resi-
5282          MILLENDER v. COUNTY OF LOS ANGELES
dence.” Nothing in these statements demonstrates a fair prob-
ability that the gang paraphernalia described in the warrant
was evidence of a crime, and no reasonable officer could
think otherwise.

   Finally, the officers here cannot shield themselves from lia-
bility by relying on the deputy district attorney’s review or the
magistrate’s approval of the warrant. “Our cases repeatedly
emphasize th[e] distinction between warrants with disputable
probable cause,” where reliance on magistrate approval is rea-
sonable, “and warrants so lacking in probable cause that no
reasonable officer would view them as valid,” where reliance
on magistrate approval is unavailing. KRL v. Estate of Moore,
512 F.3d 1184, 1190 (9th Cir. 2008). This case falls into the
latter category. Messerschmidt’s affidavit provided “a mere
affirmation of suspicion and belief without any statement of
adequate supporting facts.” Nathanson, 290 U.S. at 46. In
short, the affidavit is simply missing the facts and circum-
stances that would support a search for the array of firearms
and gang paraphernalia described in the warrant.

                                III

   The majority reaches the contrary conclusion for several
reasons. First, the majority relies on the allegations in the affi-
davit that Bowen used a deadly weapon and had ties with a
gang. Second, the majority states that it is reasonable to infer
that Bowen “probably had a criminal record,” although the
affidavit does not say so. Maj. Op. at 5273. Third, the major-
ity notes that the warrant was limited to items that “arose out
of the officer’s particular concerns with Bowen, if not with
the specific crime under investigation.” Maj. Op. at 5274. In
essence, the majority holds that the breadth of the warrant is
justified because Bowen used a gun, was a member of a gang,
and had raised the concerns of the police.

   I disagree. Officers do not get a pass from complying with
the Fourth Amendment’s warrant requirements because they
             MILLENDER v. COUNTY OF LOS ANGELES            5283
are investigating an unsavory character. No matter how shady
Bowen may be, reasonable officers would know that they can-
not undertake “general, exploratory searches and indiscrimi-
nate rummaging through a person’s belongings,” United
States v. Spilotro, 800 F.2d 959, 963 (9th Cir. 1986), unless
there are facts in the affidavit establishing a fair probability
that the items sought in the search warrant are contraband or
evidence of a crime.

                              IV

   In sum, the affidavit contained only conclusory statements
rather than concrete facts and circumstances, and failed to
allege a nexus between the items sought and the criminal
activity being investigated. Because it did not include facts
demonstrating a fair probability that the items listed in the
search warrant were evidence of the crime being investigated,
“a reasonably well-trained officer in petitioner’s position
would have known that his affidavit failed to establish proba-
ble cause and that he should not have applied for the warrant.”
Malley, 475 U.S. at 345. The officers “cannot excuse [their]
own default by pointing to the greater incompetence of the
magistrate.” Id. at 346 n.9. I would affirm the district court’s
denial of qualified immunity, and I respectfully dissent.
