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?
Police were called for a domestic violence issue. Some one was heard inside that home being beaten and screaming from a neighbor. That’s all the police knew. WHAT IF there was a person in another room on the edge of death from a beating they just took. The police HAVE TO ENTER this house. They were called. If the occupants have nothing to hide, they should let them enter. Based on the information from the call, and the fact they are not letting the police in, they are hiding something so the people no cooperating must be subdued with non lethal force.
So.. what if there is a person near death in the other room and police walk away? Answer that one.
“All could have been avoided if the couple had just opened the door and presented themselves and politely invited an officer in to see that everything was fine. So why would you not do this unless you had something suspicious to hide.”
This is the constant refrain of the security state–if you have nothing to hide then you won’t mind the government looking into your private affairs. It has always been used by authoritarian states to justify their spying into their citizens affairs.
“Clearly the reaction of those inside the home raised suspicions that there was indeed a problem and perhaps even children in danger.”
This is a heads-I-win-tails-you-lose argument. If you assert your privacy rights then you must be a criminal!
“The problem for the LE officers is that you are criticised if you act and are criticised if you do not. It is a no win situation for them. Keep damning these people as occurs on websites like this and elsewhere and the police will eventually say – stuff the public- who needs this hassle – from now on we will just walk away.”
This is really not that difficult. The cops’ jobs are not to do whatever receives the least criticism. Their job is to follow the law. And if, in the future the cops decide not to break into someone’s home without a warrant on nothing other than a neighbor’s statement of hearing loud arguing, then so much the better.
Well, word press ate a comment of mine…
… How do I petition the NSA for a copy?
D.S.
I’m not sure what your defending with that UN statement.
Please clarify.
I was only pointing out how some LEO’s look at tasers and the UN decision. Not that far off from what you quipped. They ranted their screeds in defense of using tasers, even aggressively.
Not trying to pick fights, just curious about the UN comment you made. Thinking about it, if one group or organization should always be judged by the bad they’ve done, name one organization that doesn’t escape being branded evil because of the actions of one or a few? The USA? HA! The Catholic Church? HA! Lawyers? HA! Want me to continue?
OS: I read your response, which I believe can be summed up as follows: because we live in a dangerous world where civilians from time to time assault and kill one another, and moreover assault and kill cops, who don’t have the luxury of sitting at a keyboard weighing the pros and cons of any number of hypothetical situations, and have to instead make quick life or death decisions, we should just let the cop decide what’s best when it comes to 4A protections, even if the cop’s decision making turns out to be unreasonable.
If I have fairly characterized your argument, then you couldn’t be more wrong. And there’s a vast body of case law that says you’re wrong.
Moreover, despite that you have now weighed in on this issue half a dozen times, you never seem to grasp the import of several elements in this story that distinguish it from the incidents and case law you have cited. For example, in this case it was NOT the potential victim of a potential DV who called 911. It was a neighbor, i.e., a third party. I didn’t see any information indicating the police were somehow prevented from interviewing the neighbor–did you? So, what exactly did the neighbor report to 911, besides having heard yelling from the house next door? For more than a decade my married neighbors screamed at one another, but never once did I see either one of them bruised from an assault.
Again, while it’s clear you want the people reading your comments to understand the importance of protecting the health and safety of police and civilians, you have yet to demonstrate one iota of concern for fundamental 4A rights, not to mention the injuries inflicted on civilians by the “bad apples” whom you acknowledge work in law enforcement. The approach you favor would bestow upon even these bad apples the discretion to use their guns, tasers, and battering rams at will.
The same U.N. that nominated Robert Mugabe for tourism envoy?
Woot! USA!!! USA!!! USA!!!
The land of TORTURE!!!
A look into the lion’s den, so to say… At Officer.com
UN considers Taser torturedevice
11-25-2007
And just read the comments…
So close and yet so far.
Gene H.:
I’ll concede that we don’t have enough information to reach hard conclusions about much of this, but this is almost a classic response once the police arrive on a domestic violence call. The only way to honestly evaluate the situation is by interviewing each party, an impossibility unless they either emerge or permit entry. Responding to this sort of event is costly. Either someone is lying out of fear or the call was improperly made. An investigation is needed either way, and that can’t be conducted by talking through the door. So, see, it looks like we didn’t really disagree on even a single point. Sorry.
The police are lucky the home owner didn’t have a gun.
Dave’s Not Here
Ooo. I get a chance to disagree with Mike A. Joy!
Even if it’s on a single point. “The husband clearly did not want that to happen, so he denied entry.” Do we, in fact, know this? Did she come to the door and have her say without interference from the husband? A matter for discovery as the recording only starts once entry is being denied and both express that they do not want entry without warrant.
The rest, I agree with (as usual).
Poorly handled. When police respond to a domestic violence call, it is essential that they be able to speak to each party separately, particularly the victim. The husband clearly did not want that to happen, so he denied entry. I would have sought a telephone warrant at that point. And if the wife was truly not in fear and simply made the call to embarrass her husband, she could also be charged. However, simply breaking down the door and tasering the occupants makes absolutely no sense.
OS,
Unless the officers can prove exigency, I know no such thing. I do know how to file for a change of venue though.
” If the two persons in the video were acting normally and not shouting, argumentative, non-compliant and aggressive acting then the police might have had less reason to doubt that there were injured or distressed persons inside. But it is almost always the case when those who have assaulted others are just as aggressive, hostile and verbally escalating.”
Some people start to lose their composure when threatened.
“Now lets take a look at what could have happened if those officers pulled back and went the telephonic search warrant route. The actors, or suspect could have easily repositioned themselves to another part of the house, grabbed a weapon and then used it on the police or the others within the house. It would certainly not be outside the norm for one of the actors to then focus their aggression on another person and blame them for the police being called and then exact revenge against this person. I have seen this happen many times where one gets angered at LE being called and then subsequently assaults either the victim or a person who they blamed called the police.”
Supposition is not evidence of exigency. Just as likely, they could have gotten a warrant and the couple would have complied their legal rights satisfied. “Could have” is a weak argument.
“Now place all this into the officers at the scene at the time they are there. In this situation the officers have to balance the needs of the victim, their own safety, and years of training, experience, the information they have, the unknowns that are possible, and all the legal ramnifications of what could happen and they have to make the decision right then and there with almost no opportunity for retraction of their actions. That is what they face.”
And sometimes, they decide wrong.
“I more certainly don’t belive a criminal action would prevail against these officers for burglary or assault.”
As stipulated, B&E would require more information and be a stretch. Battery? Not so much.
“For burglary and asault where would be the intent to commit a crime on the persons? The officers were acting under the authority of their DV statute and case law which would authorize an entry into the dwelling, especially in the light most favorable to the defendants (in this cause it would be the officers)”
Entry under exigent circumstance. If that requirement isn’t met, the entry is illegal. At that point, you can argue intent all you like but the battery is manifest in actus reus if said battery meets local felony battery requirements.
“I know some contributors here have mentiontioned the possibility of a section 1983 action against these officers. Again, I don’t have all the information and only what you all have here. But, I belive this would be a difficult case for the plaintiffs.”
42 USC § 1983 reads in relevant part:
“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. ”
These people were denied their 4th Amendment rights by officers who acted without exigent circumstance to effect a warrantless entry after specific refusal of a demanded warrantless entry. Sounds like that subjected them to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws – specifically the 4th Amendment – to me. I’d be willing to let a judge opine on it.
“I think you will agree if there was some form of visible injury to either party the entry would be golden.”
Yes. Because that would be under the definition of exigency found in the case law.
The rest is more supposition. No exigency, i.e. an objectively reasonable basis for believing that an occupant is or is about to be seriously injured: the emergency aid exception (which is the same imminent danger standard as in CA per People v. Duncan, 42 Cal.3rd 91, 97 (1986)), means a warrant is required. There is simply no evidence of exigency in what we have here.
I say let the courts sort it out.
Gene:
Probble cause and exigent circumstances to allow entry are not necessairly of the same requirements to establish. Also, just because a citizen proclaims that he does not waive his fourth amendment rights, does not mean that he or she can cloak themselves in that to establish a blanket protection of those rights against circumstances that override those because of circumstances. If that was the case then there would be no exigent circumstance permitted in DV cases because it is frequently the case where suspects act as this man does. Also you have to look at reasonableness in the person. If the two persons in the video were acting normally and not shouting, argumentative, non-compliant and aggressive acting then the police might have had less reason to doubt that there were injured or distressed persons inside. But it is almost always the case when those who have assaulted others are just as aggressive, hostile and verbally escalating.
We as armchair quarterbacks in this incident displayed in the video do not have the same facts as could have been available to those officers at the time, that is why I mentioned this. There could have been other items that the officers knew of at the time. Examples could have been past history in dealing with the person, the information that was not visible on camera or in the news article, the victim could have been been a victim to this man in the past. Statements could have been made to the poilce by others prior to the filming it is not available (or it could not have existed we don’t know). The officers also did not have the clairvoyance to know that there might have been an injured other person in the dwelling. The man filming stated that there was a child inside. We don’t know if the child could have been the victim of an assault by one of the actors and that is what caused the arguing and crying by the woman.
Now lets take a look at what could have happened if those officers pulled back and went the telephonic search warrant route. The actors, or suspect could have easily repositioned themselves to another part of the house, grabbed a weapon and then used it on the police or the others within the house. It would certainly not be outside the norm for one of the actors to then focus their aggression on another person and blame them for the police being called and then exact revenge against this person. I have seen this happen many times where one gets angered at LE being called and then subsequently assaults either the victim or a person who they blamed called the police.
Now place all this into the officers at the scene at the time they are there. In this situation the officers have to balance the needs of the victim, their own safety, and years of training, experience, the information they have, the unknowns that are possible, and all the legal ramnifications of what could happen and they have to make the decision right then and there with almost no opportunity for retraction of their actions. That is what they face.
I know some contributors here have mentiontioned the possibility of a section 1983 action against these officers. Again, I don’t have all the information and only what you all have here. But, I belive this would be a difficult case for the plaintiffs. And I more certainly don’t belive a criminal action would prevail against these officers for burglary or assault. Despite that what might be said might be emotive or shocking, in light of the commonality of these type of situations it is not as the courts put it “shocking to the conscious” in my view, in light of other DV situation for which me, Chuck and others have pointed out. For burglary and asault where would be the intent to commit a crime on the persons? The officers were acting under the authority of their DV statute and case law which would authorize an entry into the dwelling, especially in the light most favorable to the defendants (in this cause it would be the officers)
I think you will agree if there was some form of visible injury to either party the entry would be golden. So what would have been a good practice that you would suggest the police do otherwise? Go back to the squad car and call the warrant in and risk something bad happening? I suppose it could be done where the police had the women here go to another room and talk to the police separately than with the man and through a window find out what is going on. But what would have happened if the actors did not comply with this and ran into another room, where the child could have been or did something crazy. We won’t know if that would have worked or not because the events unfolded as they did.
I have a weak heart at 82 with bad pulse, irregular. If I get tazed I will die. I know I have to go one day but I don’t want to go that way and neither does my dear wife. See you ALL on the other side one day soon.
Gene,
You know as well as I do, if they sue, it will go nowhere. The best they might hope for is for the city to fix the door.
Well said Darren Smith – once again.
A voice of common sense and logic.
All could have been avoided if the couple had just opened the door and presented themselves and politely invited an officer in to see that everything was fine. So why would you not do this unless you had something suspicious to hide. Clearly the reaction of those inside the home raised suspicions that there was indeed a problem and perhaps even children in danger.
The problem for the LE officers is that you are criticised if you act and are criticised if you do not. It is a no win situation for them. Keep damning these people as occurs on websites like this and elsewhere and the police will eventually say – stuff the public- who needs this hassle – from now on we will just walk away.
It is fortunate that society still has people who are prepared on a daily basis to deal with the sewer trash of humanity and constantly put their own lives in danger. Wallys like Lexman and some others above should get out of their ivory towers and lounge chairs and join a LE officers shift for a couple of nights in the city and see what these guys have to contend with.
I was once in a situation where the police arrived at our family home because a stupid report had been made by a member of the public that a missing person that was the subject of a very high profile custody dispute was possibly seen in my car during one of our family outings to the beach. The police had to follow up the lead and did so. We invited them into our home and sat them down and they did their duty checking out the lead and then politely left. If these low life stupid people in this case had done the same then there would be no issue here.
Some people here – actually a LOT of people here seem unsure if most readers know that laws give LEO the legal right to enter anyone’s “castle” who isn’t sufficiently deferential to an officer with whom they have the misfortune of encountering —BUT THAT DOESN’T MAKE IT RIGHT.
I also understand this is the first time we’ve ever come down on opposite sides of an issue, OS. I think the same can be said of Darren too although we may have disagreed on something in the past I’m not recalling at the moment. It’s quite exhilarating for a change. Much like those few occasions when me and mespo disagree. That now makes all of the GBs (except for that damnably reasonable Mike A.) that I’ve had a disagreement with. Feels like . . . balance has been restored to the universe.
Except for that pesky Mike A. 😉
OS,
I understand it is quite common for a wife beater to deny police entrance to the house. I also understand that innocent until proven guilty and that the cops are not the judiciary. I understand it is quite common for someone who has done nothing to deny entry as is their right under the 4th. The man and woman clearly sound upset, but that is not proof of anything and hardly suspicious given the cops are threatening to come in without a warrant despite both parties exercising their Constitutionally protected 4th Amendment right. I also understand the legal standard for warrantless entry and it is exigent circumstance which I also do not see.
It’s not against the law to argue with your spouse. It’s not against the law to assert your rights.
It is against the law to kick in someone’s door and taser someone absent exigent circumstance under color of authority.
I would be suing the Hell out of the officers personally and the City of Cotati if they did this to me or a client.