This should be the sort of ruling from the 9th Circus that any decent person can get behind:
The facts are remarkable. Plaintiff, Susan Frunz, and her two guests were in Frunz's home in Tacoma, Washington, when police surrounded the house, broke down the back door and entered. The police had no warrant and had not announced their presence. Frunz first became aware of them when an officer accosted her in the kitchen and pointed his gun, bringing the barrel within two inches of her forehead. The police ordered or slammed the occupants to the floor and cuffed their hands behind their backs-Frunz for about an hour, until she proved to their satisfaction that she owned the house, at which time they said "never mind" and left.
The officers point to the exigency of the situation, but there was none. Normally, when officers suspect a burglary in progress, they have no idea who might be inside and may reasonably assume that the suspects will, if confronted, flee or offer armed resistance. In such exigent circumstances, the police are entitled to enter immediately, using all appropriate force. But it was clear from the information available to the officers here that they were dealing, at worst, with some sort of spousal property dispute. Even if it was technically a burglary-and it's far from clear that the officers had probable cause to suspect this-it did not present the same risk of confrontation or flight as a break-in by strangers. The fact that the suspected intruder had a personal relationship with the person thought to own the house raised the possibility that she was there with his permission or had gained possession as a result of the legal proceedings between them. The officers also knew that Staples had watched Frunz drive up to the house, park out front and open the door to a visitor. These signs of open and lawful occupancy made it far less likely that what was going on was a burglary and materially diminished the risk of violent confrontation. Staples, moreover, not only identified Frunz by name, sex, race and age, but also gave the description and license plate number of her car. Had she managed to flee the 900-square-foot house that was by then surrounded by at least five police officers, she could easily have been found by contacting her ex-husband or her divorce lawyer, or by tracking her car registration. The fact that it took the police forty minutes to respond to Staples's second call confirms the absence of exigency. The delay was no doubt caused by the low priority the communications officer assigned to the call by coding it as a "security check" rather than a "burglary in progress."
Not so. While the information provided by the neighbor suggested that unauthorized people may be in the house, it also made clear that this was not a break-in by strangers. Staples identified one of the occupants as the neighbor's ex-wife, describing her by first name, race and approximate age. The officers confirmed that there had been no break-in when they inspected the property during their first visit, and nothing had changed when the officers stormed the home an hour and a half later. During this first visit to the property, the officers did not draw their weapons, did not call for back-up and did not break down the door. Quite reasonably, they knocked and sought to have a conversation with whomever was inside.
The amusing part of this case is that Judge Kozinski and crew have set up the distinct possibility that the cops involved will face increased penalties for filing a frivolous appeal on immunity grounds. Score one for the good guys on this one because police immunity too often gets in the way of holding the police accountable for patently bad judgement that no reasonable person would allow--or be allowed--to get away with.
The most dangerous aspects of these case is the unwillingness of the police at the scene to behave in a civilized manner. In this case, the police made not one, but two, visits to the property to check it out. The report that they were given said that it was the recent ex-wife of the previous neighbor, and that should automatically have reduced their risk assumption given the possibility that there might have been a court ruling in her favor or maybe it was just a simple property dispute.
What never ceases to amaze me is how many people can justify this sort of treatment. Holding a gun two inches away from someone's head is not a law enforcement tactic--it's an executioner's tactic. Cheryl Noel serves as a sobering reminder of why this is not a legitimate police tactic, as she was effectively shot at point-blank range and killed by a SWAT officer in Baltimore during a similar botched raid. It takes a very cold heart to say "it happens" like "hey, it's ok, we have to let people be human."
No, we don't. We have social standards for acceptable violence and the militarized police forces that exist today routinely violate them. Carrying a badge and being on a government payroll does not give you a waiver for that.
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