In Dougherty v. City of Covina, et al., the Ninth Circuit Court of Appeal found that qualified immunity shielded a Covina police officer from liability when he applied for and secured a search warrant for child pornography from a neutral magistrate. Though the officer lacked probable cause to apply for the warrant, the court held that the law on search warrants for child pornography was not sufficiently established to attach liability. The appellate court affirmed the district court's ruling dismissing the action as to the officer, with prejudice.
More importantly, the Ninth Circuit affirmed the lower court's ruling dismissing Plaintiffs' remaining claims, with prejudice, for failure to state municipal liability against the City and failure to state supervisory liability against the chief of police and the officer in his official capacity as a supervisor. The court agreed with BB&K attorneys Chris Pisano and Ross Trindle that Plaintiff's complaint failed to comply with the new "plausibility" standard articulated by the Supreme Court in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal. This represents a significant departure from the liberal pleading standard typically relied upon by Plaintiffs and the Ninth Circuit in judging the sufficiency of allegations under a Motion to Dismiss. Moving forward, municipalities, police departments and law enforcement officers have a powerful argument to employ early in litigation to force Plaintiffs to plead all facts supporting their claims or otherwise face dismissal.