One of the things that people, including lawyers, have a hard time with is that laws and rights aren’t always in sync, and occasionally create a direct and irreconcilable conflict. Ultimately, a side has to be picked, and some will disagree with the choice. This video of the police responding to a domestic dispute in Cotati, California, via Turley, presents a good view of the problem:
Way back when, domestic disputes were treated by law enforcement as a family matter, something that they had no business being involved with and below the threshold of “real crime.” Not that it had anything to do with the old joke, “what do you call the husbands of 156,000 abused women? Officer.” No, the problem is that what they perceived as benign neglect ended up with the occasional dead spouse.
While this isn’t a gender thing in the abstract, it is in real life. There are men who abuse women and do them grave harm. Yes, it happens the other way around too, but the frequency and level of abuse isn’t often the same. No carping on who gets beaten more or worse permitted.
A seismic shift in policy happen, and police in most departments across the country were not only required to fully investigate claims of domestic abuse, but to not take no for an answer. No community or police department wanted a dead spouse after the police left a home. This isn’t a bad goal.
As for what happened in the video, consider the pragmatics of the situation. The couple refused to come out, as is their right, and refused to let the cops in, as is also their right. If the cops walked away and the wife ended up dead, there would be hell to pay, but if they forcibly entered and found a beaten wife, there would be no downside. The remedy for an unlawful entry is suppression of evidence, and the only evidence would be the victim. You can’t suppress a victim.
On the other side, if they break in without a warrant and there is no evidence of a crime, the couple can try to find a lawyer to handle their civil rights claim for a broken door. Not too likely, and chances are fair that they would never make it past summary judgment, even though they should. That’s the nature of §1983, whether you like it or not.
But does that make the entry lawful? Not by a long shot. The domestic dispute call might give rise to a reasonable suspicion, but not probable cause. The cops had authority to investigation, but what they found at the home was a couple who asserted their constitutional rights. The issue, of course, is that abused women frequently deny abuse to the police, for fear of retribution afterward, so the wife’s (and we’re assuming that the police here figured it was the wife who would be getting the worst of the dispute) assertion that she was fine may have been completely accurate. Or not.
But the absence of any evidence, response or observation that supports the allegation that someone was being harmed doesn’t create an exigency that permits the police to enter a home without a warrant. Lack of knowledge is neither cause nor exigency, even though one can argue that lack of knowledge doesn’t prove that everything is fine.
So the solution was for the police to remain at the window and continue to observe while calling in for a search warrant issued by a neutral magistrate. If they saw someone being beaten in the interim, then they break down the door and enter to help. Otherwise, they cool their jets. And if the judge refused a warrant based on their allegations, then they turn around and walk away.
Might this put someone at risk of harm, even death? Yes, it might, but the Constitution isn’t an inconvenience to ignore when hypothetical concerns present themselves. Absent a warrant or exigent circumstances, the police cannot lawfully enter a home. That there is no meaningful remedy for their doing so is a fault in the way we address constitutional violations, not a free pass to ignore the Fourth Amendment.
As for the tasing upon entry, well, there was absolutely no explanation or justification for that use of force, and the woman’s screams reminds us that Tasers aren’t the easy fix to any situation, but painful and potentially deadly weapons only to be used then force is needed and permitted.
For those still unhappy about how the concerns for abused women interact with constitutional rights, consider that the only pain inflicted her upon the woman came at the hands of the police. How does that fly with your belief system?
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The woman may not be able to maintain a claim for unlawful entry, but probably has an excessive force claim. Given the availability of attorney’s fees under Section 1983, a civil rights lawyer would consider the case.
Even taking the most generous possible view on the entry, I can’t puzzle out why, if they felt they needed to enter because the woman was being so badly abused that she couldn’t ask for help, they opted to taze her.
Maybe. Maybe not. As horrendous and inexcusable as that tasing may be, it’s by no means clear that she would prevail, no less have a case worth prosecuting. As for the lawyer getting attorneys fees, meh.
It’s funny, I tried explaining this to some guy named Greenwald the other day. Don’t look for internal logic or consistency. It only makes your head hurt.
Not wanting dead spouses is a fine goal; wanting federal grant money is somewhat less noble. As for dead spouses, no small fraction of those are in the immediate aftermath of judicial action ordering a spouse/parent not to come within sight of the other spouse/children, as opposed to failure of LE to intervene. Yes, I know: even one dead/battered spouse is too many. But when the intended consequences start piling up it is time to reevaluate the policies (and the personnel charged with implementing those policies) instead of stubbornly refusing to acknowledge the possibility of error.
Whatever their motivation was for entering the house, it seems clear that ultimately it became a case of punishing them for contempt of cop. That’s made apparent by the seemingly contradictory tazing of the women, who they ostensibly went in to protect.
And as always, we can’t have the serfs not kowtowing to our cop overlords.
Or the citizens in the home could have opted for another response. They could have exercised their constitutional right to defend their home from a group of costumed thugs in the process of criminal trespass after their destruction of private property. Blown them apart once they crossed the threshold into the home!
Despite the extreme wish of some that there be a right to use force to defend their home from cops, there is none. More importantly, had they done so, they would be martyrs because they would be dead. Does that outcome really strike you as a good thing?