First Circuit Appeals Court: 'Community Caretaking' Function Applies To Warrantless Seizures, Not Actually Caring For The Community
from the no-obligation-to-help,-every-excuse-to-hurt dept
The First Circuit Court of Appeals has confirmed what we've already assumed: the "community caretaking" function law enforcement performs is there to help it dodge the Constitution, not to ensure it actually takes care of the community. Citing Simpsons' episode BABF18*, Judge Selya (trigger warning: overwrought English) says nothing about the community caretaking function prevents officers from harming you. But it does not mean officers ever need to help you.
*Judge Selya does not actually cite this, but let's just take a look at what these decisions actually mean:
The Supreme Court has made it clear -- repeatedly -- that officers are under no obligation to "serve and protect," with emphasis on the latter. You're on your own as a citizen when it comes to harm being inflicted on you. Cops are here to file reports and investigate the tragic aftermath of the harm inflicted on you. They are under no obligation to protect you against violence, even if you've repeatedly informed them someone means to do you harm.
But cops suddenly become inspired and proactive members of the community when it comes to the community caretaking exception, which allows them to perform searches and seizures without a warrant. In the interest of protecting the community, cops will tow your car and perform a pretextual search. But they'll also go into your house and there's nothing in the Fourth Amendment that can prevent that, apparently.
Selya opens the First Circuit's opinion [PDF] by painting a rosy picture of cops as local heroes who would never abuse rights to achieve their own ends.
There are widely varied circumstances, ranging from helping little children to cross busy streets to navigating the sometimes stormy seas of neighborhood disturbances, in which police officers demonstrate, over and over again, the importance of the roles that they play in preserving and protecting communities.
Selya's first egregious abuse of readable English starts on the next sentence, where he asserts without facts in evidence that this Norman Rockwell-esque picture he's painted is based on fact:
Given this reality, it is unsurprising that in Cady v. Dombrowski, 413 U.S. 433 (1973), the Supreme Court determined, in the motor vehicle context, that police officers performing community caretaking functions are entitled to a special measure of constitutional protection. See id. at 446-48 (holding that warrantless search of disabled vehicle's trunk to preserve public safety did not violate Fourth Amendment).
And with that, the court decides the exception that has swallowed the rule for cars is perfectly capable of swallowing homes.
We hold today — as a matter of first impression in this circuit — that this measure of protection extends to police officers performing community caretaking functions on private premises (including homes). Based on this holding and on our other conclusions, we affirm the district court's entry of summary judgment for the defendants in this highly charged case.
This case involves a domestic dispute that may or may not have involved a gun and threats. After this dispute had dissipated, the victim called the police the next morning, concerned that her husband might now be suicidal and was in possession of a (possibly unloaded) gun. The spouse made it clear she was worried about the harm he might do to himself and that she was not actually afraid he might come after her. It's unclear what was said about the magazine of ammo, which might not even have been on the suspect, who had left the house with an otherwise unloaded handgun.
The cops got ahold of the man, who confirmed his wife's narrative: he had asked his wife to shoot him because he was "sick of the arguments." The cops decided this meant he was a threat to himself and others, and went looking for him.
Using this information, the officers decided to start seizing weapons from the home, even though the husband had voluntarily checked into a local hospital.
At some point that morning, someone (the record is unclear as to whether the "someone" was Kim or the plaintiff) informed the officers that there was a second handgun on the premises. After the plaintiff departed by ambulance for the hospital, unaccompanied by any police officer, Sergeant Barth decided to seize these two firearms. A superior officer (Captain Henry) approved that decision by telephone. Accompanied by Kim, one or more of the officers entered the house and garage, seizing the two firearms, magazines for both guns, and ammunition. Kim directed the officers to each of the items seized. The parties dispute both whether Kim indicated that she wanted the guns removed and whether the officers secured her cooperation by telling her that her husband had consented to confiscation of the firearms. There is no dispute, though, that the officers understood that the firearms belonged to the plaintiff and that he objected to their seizure.
After he was cleared by the hospital, the man asked the cops to give him his guns back. They refused, holding onto them for two more months until his lawyer intervened. No criminal investigation was ever initiated. The man sued… and the First Circuit has told him there's nothing he can sue about.
Since it's Selya writing the opinion, we're forced to sit through phrases like "asservational array" and "salmagundi of claims" before reaching the conclusion. And the conclusion is this: "We care a lot" as it applies to officers means cops can go into your house and take your guns even if it's an open question as to whether you pose a threat to anyone and have committed no crime they feel is worth investigating.
The court even points out this search and seizure was anything but consensual:
It is uncontroverted that the defendant officers understood that the two handguns belonged to the plaintiff and that he objected to any confiscation of them. And in this venue, the defendants press no argument that they secured valid consent from the plaintiff's wife to seize the firearms.
So, here's what we, the people in the First Circuit, end up with:
We conclude that the officers could reasonably have believed, based on the facts known to them at the time, that leaving the guns in the plaintiff's home, accessible to him, posed a serious threat of immediate harm.
And, since no officer accompanied the "suspect" to the hospital for diagnosis/observation (even after officers made it clear they would do it for him if he didn't choose to do it himself), they were perhaps deliberately unaware of the man's current mental state and his threat level.
On this record, an objectively reasonable officer remaining at the residence after the plaintiff's departure could have perceived a real possibility that the plaintiff might refuse an evaluation and shortly return home in the same troubled mental state. Such uncertainty, we think, could have led a reasonable officer to continue to regard the danger of leaving firearms in the plaintiff's home as immediate and, accordingly, to err on the side of caution.
And so this most hallowed place -- the starting point for Fourth Amendment protections -- the home/castle is just another place officers can intrude upon without a warrant if they feel ways about stuff.
We need go no further. Police officers play an important role as community caretakers. As this case illustrates, they sometimes are confronted with peculiar circumstances — circumstances that present them with difficult choices. Here, the actions of the defendant officers, though not letter perfect, did not exceed the proper province of their community caretaking responsibilities. The able district court recognized as much and, for the reasons elucidated above, its judgment is affirmed.
While there were some justifiable concerns about the man, he voluntarily admitted himself to a hospital and the officers had several hours between the initial call and the follow-up (in which the wife expressed concern the man would harm himself rather than her) in which to develop some probable cause for a search and seizure. They proceeded without a warrant and consent, and held onto the man's property for two months without ever bringing criminal charges. The community caretaking exception has made a mockery of the Fourth Amendment -- especially when it comes to vehicles -- but this decision allows the exception to cross the threshold of homes in the circuit, giving officers ample opportunity to perform warrantless fishing expeditions as long as they can claim they were worried about something.
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Filed Under: 1st circuit, 4th amendment, community caretaking, law enforcement, police, protect and serve, seizures, warrants
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Maybe it's in invisible ink?
Strange, I don't seem to recall the 'unless it would negatively impact police, in which case none of this applies' clause in the fourth amendment, I guess the judge must be basing their ruling off of the super-secret version of the bill of rights that includes all those exceptions and loopholes that the government uses to justify constitutional violations.
'Funnily' enough rulings like this do seem to have a historical mirror, 'writs of assistance', which were the entire reason the fourth amendment came about.
From Wikipedia:
'General writs of assistance played an important role in the increasing tensions that led to the American Revolution and the creation of the United States of America. In 1760, Great Britain began to enforce some of the provisions of the Navigation Acts by granting customs officers these writs. In New England, smuggling had become common. However, officers could not search a person's property without giving a reason. Colonists protested that the writs violated their rights as British subjects. The colonists had several problems with these writs. They were permanent and even transferable; the holder of a writ could assign it to another. Any place could be searched at the whim of the holder, and searchers were not responsible for any damage they caused. This put anyone who had such a writ above the laws.
If a judge is too much of a coward to uphold constitutional rights if it means standing up to police then they have no business holding that office, and should step down to be replaced by someone that sees those rights as something worth protecting, rather than obstacles to be worked around or flat out ignored.
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It obfuscated to them
Seem fairly clear to me, why isn't it to them? Is the First Circuit (and/or the Supreme Court) part and parcel of some greater agenda than following the operating instructions? If they are it is not for us, but for something they consider greater. Thing is though, they work for us, not something greater. Or do they?
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Re: It obfuscated to them
Seem fairly clear to me, why isn't it to them?
Corruption and/or cowardice.
Either they've reached the point where they consider constitutional protections to be nothing more than suggestions that can be ignored or twisted as soon as they become inconvenient for someone with a badge, or they are too cowardly to slap the police down and risk someone claiming that they are in favor of criminals by issuing a ruling that actually respects those protections.
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With such a clearly corrupt interpretation of the law, we tge citizens no longer owe respect, trust or even obedience. Legal outcomes like this one from the supreme court leave no reason for people to assume the police isn't going to harm them as much as any other criminal out there. Do judges want for people to kill the cops as self defense by DEFAULT?!
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Equal protection clause
Police occupy no special place in constitutional law, aside from their status as government actors. They don't have any rights a private citizen lacks, and it would actually be unconstitutional to give them any as it would create a very large less privileged class of citizen.
So I'm curious. If you were to express 'concern' for Judge Selya's well-being to someone, and that person was unable to contact Selya by phone, would it justify kicking in Selya's front door to ascertain whether he is okay? And if some member of his household is visibly breaking the law, well, too bad?
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Salmagundi
Is Salmagundi a euphemism for Salman Rushdie's Magumbos?
https://www.youtube.com/watch?v=Ocs03_Lzvms
And clearly the court will not sell ya out to the highest bidder.
Isn't an "asservational array" where we use donkeys to operate Kitt Peak?
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still illegal after all these years
once an employee of the government, your priorities and beliefs change it seems.
legislators, executive branch, police, judiciary..doesnt matter.. they will stick together to stick it to you non-employees. I don't care about guns, it could be said that X was taken when officers illegally entered and stole items. clearly a violation, and clearly money and time will have to be spent to undo a blatantly unconstitutional decision
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The Constitution is not Fair or Impartial. Intruders and burglars will and can be shot whether they have a tin shield or not.
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Re: Maybe it's in invisible ink?
Why am I not surpised at trash appointing other trash:
Appointed by Ronald Reagan
Appointed by John Roberts
https://en.wikipedia.org/wiki/Bruce_M._Selya
Bruce Selya
Presiding Judge of the United States Foreign Intelligence Surveillance Court of Review
In office
May 19, 2008 – May 19, 2012
Appointed by John Roberts
Preceded by Edward Leavy
Succeeded by Morris S. Arnold
Judge of the United States Foreign Intelligence Surveillance Court of Review
In office
October 8, 2005 – May 19, 2008
Appointed by John Roberts
Preceded by Edward Leavy
Succeeded by Morris S. Arnold
Senior Judge of the United States Court of Appeals for the First Circuit
Incumbent
Assumed office
December 31, 2006
Judge of the United States Court of Appeals for the First Circuit
In office
October 14, 1986 – December 31, 2006
Appointed by Ronald Reagan
Preceded by Seat established by 98 Stat. 333
Succeeded by Ojetta Rogeriee Thompson
Judge of the United States District Court for the District of Rhode Island
In office
August 18, 1982 – November 24, 1986
Appointed by Ronald Reagan
Preceded by Raymond James Pettine
Succeeded by Ernest C. Torres
Personal details
Born Bruce Marshall Selya
May 27, 1934 (age 85)
Providence, Rhode Island
Education Harvard University (A.B.)
Harvard Law School (LL.B.)
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It is tough to make any positive changes in the system when all three co-equal (co-evil?) branches of government are asservationally arrayed against double plus unOrwellian non-untruth.
The legislatures enact laws that are clearly unconstitutional, while at the same time not being clear in any other sense of the word.
The executive branch then enforces these laws far beyond even highly creative extrapolation of their applicability.
And then the courts come up with some mind-boggleingly twisted "reasoning" to support their conclusion that it is all just hunky-dory.
It is Lewis Carroll, George Orwell, and the brown acid all rolled into one.
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Re: Equal protection clause
Yet that's the trend we keep seeing. They are being raised to a privileged class by politicians and police unions. Barring overwhelming evidence of maleficence (and even then that might not be enough) they often get off with a slap on the wrist via QI or get shuffled around to another prescient where they continue to do the same thing they got in trouble for.
The difference here is if it was anyone else not in uniform they'd be changed with breaking and entering but when it's someone in uniform suddenly it's "community caretaking".
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So you're saying "I feared for your life" works just as well as "I feared for my life" as a get-out-of-jail-free card?
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Re: It obfuscated to them
entirely clear - the key phrase is unreasonable searches and seizures, a police man has a reasonable expectation that they can do anything they want qed.
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what are police?
Lets see..
they dont know=
Basic Psychology.
Self defense except a gun.
Inter personal skills except, Im right you are wrong.
AND they dont know the law.
What they do know=
I do as Im told.
I learn what I can.
I dont get shot.
I go home to my family.
The only laws taught to me are Basic/basic.
Asking or suggesting we have smart people in this job, is being stupid, as a SMART person generally would not want it. Even tho It can pay 2-10 times more then Any starter job.
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Re: what are police?
They won't even hire smart people. They don't want cops who can think for themselves. They want aggressive morons who will do as they're told and act on impulse. It's no wonder we are where we are with law enforcement.
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The case ...
... seems to be less straightforward in the second half of the article than in the first.
If the wife calls the cops for help, the police are not conducting a warrantless search, but respond to a call for help.
As for searching for and seizing the second weapon: What article would have been written had the husband returned from the hospital, taken the gun from a drawer, and killed himself? And possibly his wife?
The sad part of this story is that the case was taken all the way up to the First Circuit Court of Appeals, where it now sets a precedent for many more cases to come. Where the police crossing lines will be more obvious.
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Re: The case ...
Find my husband, and take him to hospital is not a reason or invitation to search the house, as is removing the guns without the wife's permission. Indeed without time pressure as in this case, a signed consent to either searching for guns, or holding the guns the wife handed over would be reasonable.
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... just because.
To see where this is headed look here for one example.
Police: "We can search you or your house or your car when we want, we can take your guns or your money or anything else when we want, we can throw you in jail when we want for as long as we want because ... well, just because.
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Re: ... just because.
Come into my house unannounced and your buddies will be carrying you off in a body bag. My state still has castle doctrine though I wonder for how much longer. On that note, if you shoot at an intruder, shoot to kill. If they survive they will sue you into the earth and win.
As for searching my car or person, if this is done without reasonable suspicion I will make the offending officers' lives hell for a very long time. I'll wring as many dollars as possible out of their precinct and use it all to fight against this bullshit tyranny. Seize my car or anything I'm carrying and see what happens.
We, the people, need to start fighting back against this bullshit.
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Maybe I’m wrong, but I’m pretty sure I remember reading that a different court has ruled otherwise regarding the community caretaking exception. Granted, that wouldn’t be binding on the First Circuit Appeals Court, and I may be misremembering things, but does anyone remember any details of that?
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In all fairness, the conclusion that the man was a threat to himself wasn’t exactly unreasonable based on the information they received. Everything else does not make sense, though. I also reiterate my belief that being a threat to oneself should not be used as a way around the warrant requirement or to justify use of force except in an emergency that is occurring right now within eyesight of the officers (and obviously only to justify using nonlethal force).
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Re: Re: ... just because.
I see this kind of bluster.
just a little reminder- castle law or no, if you shoot a cop who enters your home, you will be lucky to eventually be released from jail after the trial (the jail where you might have an 'accident')
More likely is being shot dozens or times by all of the other cops, left to die on the floor of your living room and posted on the news as a dangerous psycho.
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Re: Re: Re: ... just because.
The reverse castle doctrine is real
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Re: Re: ... just because.
What teka said is a virtual certainty.
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Kansas v. Glover: "common sense" and Sotomayor dissent
I'm afraid the courts will be busy rewriting some of those rulings in the future...
https://lawandcrime.com/supreme-court/in-lone-dissent-justice-sotomayor-blasts-majority-op inion-no-foundation-in-fact-or-logic/
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