This video shows a confrontation between a couple in Cotati, California and police after the police were called to investigate a domestic violence complaint. The couple tells the police that they were simply yelling in an argument and refused to allow the police to enter without a warrant. The police respond by kicking down the door and tasering the couple.
In defense of the police, it is not clear if they can actually see the couple, particularly the wife. In a case of possible domestic abuse, police need to see the occupants to ensure that someone is not being or has been beaten. If the police were to simply leave based on verbal responses, there could be a victim found later who was unable to break free or seek help. I can understand the reluctance of the police to leave the scene without a visual on the couple. However, they could have sought a telephonic warrant.
Despite the compelling concern over the safety of occupants, there remains the question of whether the police can break down the door based on what they have been told and more importantly whether tasering was necessary simply because the couple was refusing to lay on the ground.
Police can enter a home without a warrant under “exigent circumstances” where there is a reasonable belief that there is an immediate need to protect their lives or the lives of others. Here the couple both respond to the police and demand a warrant as a precondition for entry. There is no allegation of a report of actual violence as opposed to yelling. The police are clearly suggesting that the suspicious conduct led them to be concerned for the safety of the couple, particularly the woman.
The police demand to know why the couple will not come out, though citizens are allowed to remain in their homes absent a lawful demand to exit the home. The woman is tased first and then the man. I fail to see the reasonable basis for the taser. They are clearly not obeying commands but they do not appear to be threatening the officers. As we have discussed before, tasers appear to be used increasingly in response to citizens who simply do not follow the orders of police.
What do you think about the entry and force shown in this video?
Gene:
The more the guy talked, the more suspicion is aroused. Something is wrong in that house, and they are determined to get to the bottom of it. BTW, it is quite common for a wife beater to deny police entrance to the house.
Remember Brown Deer and Pittsburgh.
rsmatesic,
In response to your observations. Of course there are bad officers. Just as there are bad (insert name of any profession or occupation).
At the Academy, officers receive a week to two weeks of training on the law. They are taught basics; however, one thing that is pounded into them week after week, is the single call most likely to end in someone dying is the DV call. One also has to consider what the responding officer(s) knew. They got a call from dispatch to respond to a DV call–that’s all they know. Under the Brigham City decision, that is probable cause. They also know from training that it is common for the victim of domestic violence to tell them to go away. The Brown Deer case is a horrible example.
This story comes from Pittsburgh just yesterday:
Source: http://www.wpxi.com/news/news/local/officers-be-trained-better-deal-suspected-domestic/nXrpH/
Darren is a retired career officer. He has had to knock on those doors and make the decision on what to do next. For him, it is not a theoretical exercise. Our former Sheriff had to kill three men in the line of duty during his long career. Every one of those incidents involved the perp pointing a shotgun at his chest at close range. The last incident was a domestic violence call shortly before he left office. The man suddenly wheeled around with a shotgun in his hands. The Sheriff and his backup fired at the same time before the suspect could get off a shot.
You ask why the officers could not have simply left. The Brown Deer matter is one reason. The Pittsburgh and Cleveland cases are others. As a forensic psychologist who has worked on many domestic violence cases that ended in grievous harm or murder, it would be the height of irresponsibility for the officers to leave without checking out the location. Legal justification? Read the Brigham City decision, especially at 403.
As for the Taser, as Darren pointed out, when an officer hears the “cricket clicking” sound, they know the Taser is not making contact and not working. That is the sound of the probes arcing harmlessly.
Of course there are bad apples, but all most officers want is a quiet uneventful shift, so they can go home to their families at the end of the shift. Some don’t have that luxury. For an officer, the worst call of all is, “Ten double zero.”
You said Darren had empathy for officers. So do I–unapologetically. She is 24.
http://i617.photobucket.com/albums/tt256/otteraylens/eedae90c-2fe9-414e-be30-74eea1ef3556_zps581659e0.jpg
Here’s my take… Absent exigent circumstances a warrant is required…. Since prosecutors know this… In many states involving domestic violence they have had the rules rewritten to where they can arrest one or both parties at the scene…. Once that call is made…. In alot of states it’s game over….. They can enter the dwelling place….
If they refuse to cooperate and a trial ensues…. Well the rules of evidence have been modified to all a cop to testify as not only what they saw…. But in contradiction to the hearsay rule what a party said even though they are in the courtroom…..
This aberration of rights started about 15 years ago….. I agree with what’s been said here and I also speak from a practice point…..
Excellent points OS….
OS,
The facts in the story you linked to and the facts as presented in the present case are apples and oranges. Other than they involve domestic disputes, they could not be more different. “We did it for their safety” is not a good reason to violate someone’s Constitutional right and commit battery. As for the lack of law training? You’ve only made the case that field officers need more, not less.
As for Brigham City v. Stuart, 547 U.S. 398 (2006), probable cause is not the test. It’s exigent circumstance. PC applies to vehicle searches. Police may enter a home without a warrant if they have an objectively reasonable basis for believing that an occupant is or is about to be seriously injured: the emergency aid exception. Warrantless entry must plainly reasonable under the circumstances. In Brigham City, the Curt cited Mincey v. Arizona, 437 U. S. 385, 393–394 (1978): “[W]arrants are generally required to search a person’s home or his person unless ‘the exigencies of the situation’ make the needs of law enforcement so compelling that the warrantless search is objectively reasonable under the Fourth Amendment.” … One exigency obviating the requirement of a warrant is the need to assist persons who are seriously injured or threatened with such injury. … Accordingly, law enforcement officers may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury. Mincey, supra, at 392; see also Georgia v. Randolph, 547.
That is not so from what I saw on the recording. I saw cops threatening two citizens with a warrantless search with no exigent circumstance. I saw cops enraged by people not doing what they were told simply because the person making demands was wearing a badge. I saw two citizens standing up for their 4th and 5th Amendment rights being battered and their home broken in to.
There is no proof here of injury or imminent injury and both parties expressed they did not want the police coming in without a warrant. Concern over warrantless entry and asserting their rights was even the reason stated on the recording for making the recording. No one was even asking for help.
You know I’m not one of those guys who is mindlessly against the cops. These guys screwed up. They screwed up royally and on camera. They should face serious consequences for doing so.
OS: Then please accept my apologies, and know that I welcome your response to my previous comments.
rsmatesic,
I was not responding to your comment, or anyone else’s. I made several observations specific to no one in particular.
OS: Nice job. I confess it never occurred to me that someone could respond to my post without addressing a single point that I made, but you have proven otherwise.
You seem convinced the cops could not simply have left, but you never say why. Also, I get the sense you can’t envision a scenario in which the police would have to respect the 4A rights of the homeowners. Perhaps you could enlighten me.
We obviously need police. But for 226 years we have also needed (I thought) a bill of rights, to protect us against the illegitimate use of police force.
Do you really believe there are classes of government actors within whose ranks not a single criminal is to be found? Which classes would they be? The police? If so, what’s your evidence for this? And if you agree that criminals are to be found scattered throughout law enforcement, what then do you say to their victims, after they’ve suffered severe injury that would not have occurred but for the abuse of state-sanctioned authority?
Gene,
Stories like this one at the link are pinned to squad room bulletin boards everywhere. Consider you have had about four hundred hours of training at the Academy, only ten days to two weeks of that on the law, not four years. A hairdresser has to have at least 1,600 hours of training.
http://www.jsonline.com/watchdog/watchdogreports/brown-deer-police-failed-to-protect-the-public-experts-say-4c7aueu-175533261.html
A warrantless entry may be justified by investigative exigencies or emergencies. Brigham City v. Stuart 547 U.S. 398 (at 403).
http://scholar.google.com/scholar_case?case=6234529070422029398&q=547+U.S.+398+%282006%29&hl=en&as_sdt=2,43
The 911 call itself creates probable cause.
Sorry, Darren and OS.
Regardless of any danger inherent in a DV call, once both parties object and demand a warrant for entry as they clearly did on this recording, then the cops are in the wrong. There is no evidence of exigent circumstance. This was jackbooted thuggery because the cops didn’t like that the alleged suspects – and that is what they were at that point – knew and exercised their Constitutional rights. They were obviously concerned about it the man clearly announces both that he is recording and why. Plain and simple. The couple has a good case against the officer both on a 1983 complaint, vandalism and battery. You could even argue B&E if the battery meets the local standard for felony battery which is likely considering they used a taser.
Quite frankly I’m appalled either of you would defend these criminals with badges having seen the recording.
Darren and OS, Thanks for your knowledge and expertise.
Tell it to the 771 police officers murdered in the ten year period 1999-2009. Tell it to their widows and kids. Fourteen percent of those officers were killed responding to domestic violence calls.
During that time period, 89 of the calls resulted in at least one officer death. In fact, of those 89 calls that turned out to be fatal for the police, 106 officers were murdered. 51 percent of officer deaths occurred before first contact. In other words, half the officer fatalities were the result of ambush as they arrived at the scene of the DV call.
About 4,000 women die each year of domestic violence. 75% of those deaths occurred when the woman tried to leave the abusive partner or spouse.
Responding to a domestic violence dispute is the single most risky response for service an officer makes. Another forty percent of officer deaths occurred within two minutes of first contact with persons at the scene of the domestic violence call.
Now, knowing that if you are the first responder, and are at highest risk of being murdered in the first two minutes of contact with the alleged perpetrator of domestic violence, how does that affect your decision making process? You only get one chance to get it right, and you have seconds, not minutes or hours. There is no time for reflection. A wrong decision may result in death of yourself, your backup, the victim of violence, or all of the above.
Darren Smith:
“. . . Here the state takes interest in the exigency of verifying that there was no DV. Exigent circumstances are likely to have been present, for one there was no verfication to the officers that the child inside was not injured. Also, the officers do not know if the woman or someone else is being coerced by one of the actors, the officers do not know if the actors are possessing weapons that are readily available to the suspects and can be used on victims or other officers . . . ”
You have assumed, without citing a shred of evidence, that exigent circumstances existed. How is it reasonable for police to assume, based on a neighbor’s report of the people next door yelling at one another, that a crime is being committed (DV or otherwise)? And who (besides you) mentioned weapons? The neighbors? The residents? Who heard a gun shot? As I read your lengthy post, I didn’t see an answer to any of these questions. Perhaps it’s because you can’t provide one.
It’s apparent that you empathize with law enforcement, which is all well and good. But on the other hand, you demonstrate no empathy whatsoever for these residents inside their own home, who were violently assaulted after requesting that the state respect their 4A rights. Do you accept the notion that 4A rights applicable to the home are fundamental, hence the warrant requirement? I ask, because your post indicates exactly the opposite.
You also don’t address the defense of qualified immunity which would have been available to these officers had they not entered the home, and one of the occupants later sued for injuries that might have been prevented had the police intervened in a more intrusive fashion. Neither of the occupants of the home would have a constitutional right to further intervention by police who only arrived on the scene because of a neighbor’s complaints of yelling, and who saw no evidence of physical injury, and who were told by the adult residents of the home to not enter without a search warrant.
Which leads me to my final point: what you’re really arguing for here is a means of shielding the police against potential litigation, at the cost of eviscerating the 4A’s warrant requirement. But rights are not fundamental if they can be cast aside every time a state actor decides s/he shouldn’t have to face the risk of a lawsuit.
One of the few times I would like Sharia-like law. Amputate the hand that operated the taser. Amputate the foot that booted the door.
I thought that tasers were supposed to replace guns so that shooting someone would not be fatal. It should be illegal for the police to use them when it would be illegal to use a gun.
Pete, at one time in my city (St. Louis) domestic calls were such a low priority that the police didn’t even bother to show up! Those were some ugly times and do not speak well of our society. Cleveland needs to investigate the matter of police/911 response thoroughly and if there is some lingering cultural inattention to domestic or missing person calls (even if it’s just procedural inadequacy) it needs to be addressed. I will be waiting to see what follow-up comes out of Cleveland.
So police arrive to a residence to investigate a report of loud voices/ argument. All is good so far. They make inquiry and are advised that there is no problem, no DV. They persist and are confronted with a polite assertion of a constitutional right to not have their home invaded absent a warrant supported by probable cause. They at this time have no, as in zero objective evidence that there is someone seriously injured or in need of their help. There is no DV exception to the fourth amendment. Without objective evidence of exigency, there is no right to continue the investigation by kicking in the door. Exigency requires imminent risk of injury or ongoing crime, and once again requires, objective evidence. There simply isn’t any presented here.
All the parade of horribles that one like Darren can speculate or imagine might possibly be the case, do not constitute the required objective evidence prerequisite to a warrantless entry based upon exigent circumstances. Darren’s neighbor might not like him. Neighbor hears loud voices that he characterizes as a DV argument to a 911 operator. Units are dispatched. Darren declines to admit the dutifully investigating police sans warrant. Because their is no objective rreasonable basis to believe that someone needs rescue, is seriously injured or has been the victim of a crime, there is no lawful basis for police to break in to satisfy their curiousity.
Based on what the police had knowledge of in this case, any neutral detached magistrate doing his or her job would decline to authorize a search warrant. If per chance the magistrate was operating way below the curve and was in the habit of rubber stamping police warrant requests no matter how thinly supported, I suspect that the occupants of this particular residence would have opened the door and let the police in.
The simple fact is that in this case, three police showed up and collectively they didn’t like being told that some Constitution thingy was an impediment to their curiousity being satisfied and their authority being asserted. What is particularly disturbing is that the first officer with Taser has an officer behind him with what appears to be a Glock at the ready. Guess Mr. and Mrs. should be grateful that they only got Tased. As for the issue of DV’s being hazardous calls for police, that is certainly true. In this situation, where police are breaking down the door without lawful authority and coming in with Tazers and sidearms deployed, some citizens may feel that police have a malicious intent to assault, injure and possibly kill them. Seems to me that the risk to the police of a bad ending was greatly increased by the police conduct in this case. We are all lucky that that didn’t happen in this case. I suspect that there is an increasing perception among a broader spectrum of the general public that the police are contemptuous of a citizens constitutional liberty. One of the main reasons for this has to be the frequency with which the public is exposed to the video capture of police exhibiting that contempt.
sorry, wrong link
http://www.examiner.com/article/cleveland-police-under-scrutiny-kidnapping-911-call-may-provide-clues
It looked like cookie-cutter police work to me. Obviously the occupants were stressed and then were being talked to in a demanding way with no attempt to diffuse the situation. Aren’t police trained to minimize, if possible, a potentially dicey situation anymore? How about a bit of conversational foreplay on the occupants, long enough to let the occupants calm down a little and gather their wits. What happened to that as a tactic? So many of the videos I see show police escalating a situation without any attempt to ‘reset’ it to a less stressful level, no humanity allowed in play prior to intrusive and violent acts. This action was escalated by the police way to fast. And I agree that tazers need to be taken away from the police- they’re too easy for them to use for mere compliance.
not a big fan of police entering without a warrant, but if cleveland pd had been this diligent maybe three girls in cleveland would have been found sooner.
http://www.dailymail.co.uk/news/article-2320571/Missing-Ohio-girls-just-3-MILES-Cleveland-block-disappeared-despite-huge-police-search.html