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Thursday, January 5, 2017

USA - Swat And Dogs

Most people who read this already understand that Swat has become a way to punish people the police do not like without bothering with a trial.

In the United States, Swat is usually employed to serve search warrants on the residences of motorcycle club members. Frequently the searches are authorized under circumstances that police allege to be “exigent” by judges – say a family court judge – who don’t know much about how the justice casino really works. Frequently the police are searching for a few joints. Occasionally, Swat searches the home of a known motorcycle club member for insignia and souvenirs that would prove what they already know – that he actually is a club member.

Typically, these raids occur before dawn. Typically, your door is breached and your windows are blown out with flash-bang grenades. Sometimes, in states like California, the police are required to say, “Police! Search warrant! Demand entry,” as fast as they can before they blow out your windows and break in your door. They order your children out of bed, point guns at them and then make them stand in their driveway like animals in a zoo for all the neighbors to see. They cuff up your wife and send her out to stand next to your children in whatever she happened to wear to bed. They cuff you up and rough you up. And just about always they kill the family pet or pets in cold blood.

Short of actually gunning down the occupant – which happens occasionally – the murdering of the pets seems to bother people the most. All of America loves pets. Since 2014, all 50 states have had laws that make animal cruelty a felony. About a year ago, the Federal Bureau of Investigation added animal cruelty to its list of Class A felonies. But you get a pass if you are a cop.

The issue of killing your dog has been litigated several times and the rulings have been inconsistent. One landmark is a 2005 decision in a case titled San Jose Charter Of The Hells Angels Motorcycle Club v. City of San Jose. In that case the Ninth Circuit Court of Appeals refused to give immunity to police who shot three dogs at a residence. In that case the court ruled that shooting the dogs was unreasonable

But a case decided last month by the Sixth Circuit Court of Appeals went the other way.
Battle Creek Swat

On April 16, 2013, in order to substantiate a tip from a confidential informant, the Battle Creek, Michigan Police Department “conducted a trash pull” at a residence in the city. “The trash pull recovered baggies with residue of marijuana and cocaine, a small amount of loose marijuana, and mail addressed to” an alleged small time drug dealer named Vincent Jones and Mark and Cheryl Brown. The home was owned by a woman named Danielle Nesbitt. Jones, the drug dealer, the guy the police were after, was the father of  Danielle Nesbitt’s child and he sometimes stayed there. Nesbitt’s parents, Mark and Cheryl Brown. lived in the basement.

Battle Creek police planned the Swat raid on Nesbitt’s home for days. As Swat was enroute to Nesbitt’s home, detectives arrested Jones away from the home but the raid continued anyway. When Swat arrived at the house they found Mark Brown standing outside. He had come home from work on his lunch break to let his two dogs out. He told the police the house was unoccupied except for his dogs and offered to unlock the front door. Swat cuffed him and broke in anyway.

The dogs barked when Swat broke in the front door. One of the two dogs moved its head as it barked. A Swat officer named Christof Klein considered that a lunge. As the second dog ran for the basement Klein shot the “lunging” dog. After he was shot, that dog ran for the basement, too. Swat followed the dogs down to the basement and “did not feel (the officers) could safely clear the basement with those dogs down there.”  So they killed both dogs.

The details are chilling. One dog was killed as it tried to escape.

In March 2015, the Browns filed a federal lawsuit against the city of Battle Creek and the Swat officers who conducted the raid on the grounds that Swat had “violated their Fourth Amendment right to be free from unreasonable search and seizure when the officers unconstitutionally seized their dogs and unreasonably forced entry into the residence.”

Last March 28, a federal district court ruled the Brown’s “presented no evidence creating a genuine issue of material fact as to their Fourth Amendment claims of unreasonable seizure of their two dogs and the (demolished) front door.” The court also ruled that Battle Creek was blameless for the Swat team’s actions. So the Brown’s appealed. They argued “(1) it is clearly established that a government official’s unreasonable killing of a dog is a seizure under the Fourth Amendment; and (2) the seizure of the dogs was unreasonable.”

The Battle Creek Police Department, the city and Swat officers who broke down the door and killed the dogs argued “that the district court correctly concluded that the officers are immune from this action under the qualified immunity doctrine and that, in any event, they did not violate a clearly established right pursuant to the Fourth Amendment. Specifically, defendants assert that: (1) Plaintiffs have no constitutional right to be free from the unreasonable seizure of a dog because this Circuit and the Supreme Court of the United States have not held that such a right exists; and (2) if the Court determines that Plaintiffs have this right, then the officers did not violate this right because the shootings were reasonable inasmuch as the Court’s review of the excessive force claim is limited to the moments preceding the shootings.”
Appeals Ruling

Ultimately the Sixth Circuit sided with the cops ruling, in effect, that no cop wearing body armor and carrying a machine gun should ever have to be afraid. And, if a cop says he is afraid he must be afraid.

The appeals court did recognize that “a large number of this Court’s sister circuits have already concluded that, ‘the use of deadly force against a household pet is reasonable only if the pet poses an (imminent) danger and the use of force is unavoidable.’” The court also allowed that, “Based on the precedent set forth by a large number of this Court’s sister circuits, we hold that as a matter of first impression there is a constitutional right under the Fourth Amendment to not have one’s dog unreasonably seized.”

But the court ruled for Battle Creek Swat anyway. “Police officers,” the court ruled, “ are often forced to make split second Judgments – in circumstances that are tense, uncertain, and rapidly evolving – about the amount of force that is necessary in a particular situation.”

“Thus, the standard we set out today,” the court wrote, “is that a police officer’s use of deadly force against a dog while executing a warrant to search a home for illegal drug activity is reasonable under the Fourth Amendment when, given the totality of the circumstances and viewed from the perspective of an objectively reasonable officer, the dog poses an imminent threat to the officer’s safety.”

“There is no dispute that the shooting of Plaintiffs’ dogs were severe intrusions given the emotional attachment between a dog and an owner,” the court said. But “insuring officer safety and preventing the destruction of evidence are particularly important governmental interests that the courts must strive to protect.”

“There is no dispute that the shooting of Plaintiffs’ dogs were severe intrusions given the emotional attachment between a dog and an owner,” the court said. But “insuring officer safety and preventing the destruction of evidence are particularly important governmental interests that the courts must strive to protect.”