The Patriots

by Rutherford Institute

WASHINGTON, D.C. — Warning of the danger to the public from the increasing use of “knock and talk” tactics by police, The Rutherford Institute has asked the United States Supreme Court to rein in aggressive “knock and talk” practices, which have become thinly veiled, warrantless attempts by which citizens are coerced and intimidated into “talking” with heavily armed police who “knock” on their doors in the middle of the night.

In asking the Court to review the case of Young v. Borders, Rutherford Institute attorneys denounced a lower court ruling that failed to hold police accountable for banging on the wrong door at 1:30 am, failing to identify themselves as police, and then repeatedly shooting and killing the innocent homeowner who answered the door while holding a gun in self-defense. Although 26-year-old Andrew Scott had committed no crime and never fired a single bullet or lifted his firearm against police, he was gunned down by police who were investigating a speeding incident by engaging in a middle-of-the-night “knock and talk” in Scott’s apartment complex.

n an amicus brief filed with the Supreme Court, Institute attorneys argue that the police violated the Fourth Amendment in conducting the “knock and talk” because the late-night raid at Scott’s home was an abuse of society’s norms and a trespass on Scott’s property. The Institute has also issued constitutional guidelines to educate the public about what they can do to preserve their constitutional rights against the coercive use of “knock and talks” by police as a means of sidestepping the Fourth Amendment’s prohibition against warrantless, unreasonable searches.

The Rutherford Institute’s amicus curiae brief in Young v. Borders is available at www.rutherford.org.

“Government officials insist that there is nothing unlawful, unreasonable or threatening about the prospect of armed police dressed in SWAT gear knocking on doors in the middle of night and ‘asking’ homeowners to engage in warrantless ‘knock-and-talk’ sessions,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “However, as Andrew Scott learned, there’s always a price to pay for saying no to such heavy-handed requests by police. If the courts continue to sanction such aggressive, excessive, coercive tactics, it will give police further incentive to terrorize and kill American citizens without fear of repercussion.”

On July 15, 2012, Deputy Richard Sylvester pursued a speeding motorcyclist, which he later had cause to believe might be armed and had been spotted at a nearby apartment complex. Around 1:30 a.m., Sylvester and three other deputies began knocking on doors in the apartment complex in the vicinity of the parked motorcycle, starting with Apt. 114, which was occupied by Andrew Scott and Amy Young, who were playing video games and had no connection to the motorcycle or any illegal activity. The deputies assumed tactical positions, guns drawn and ready to shoot. Sylvester, without announcing he was a police officer, then banged loudly and repeatedly on the door. Unnerved by the banging at such a late hour, Andrew Scott retrieved his handgun before opening the door. When Scott saw a shadowy figure holding a gun outside his door, he retreated into his apartment only to have Sylvester immediately open fire. Sylvester fired six shots, three of which hit and killed Scott. A trial court subsequently ruled in favor of the police, ruling that Scott was to blame for choosing to retrieve a handgun before opening the door. On appeal, the Eleventh Circuit ruled that Sylvester was protected by “qualified immunity,” reasoning that the use of excessive force did not violate “clearly established law.”

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For those of you that claim we don’t live in a police state, I give you this recent Michigan Appeals Court ruling.

In 2015, Deputy James Dawson went to Joshua Brennan’s home and knocked on his door trying to obtain a breath sample. When Brennan did not answer, Dawson spent an hour and a half knocking at his doors and windows.

Officer Dawson also put crime-scene tape over Brennan’s security cameras to conceal his actions and used his siren and cruiser lights in an attempt to rouse him.

When Brennan finally opened his door, officer Dawson forced him to take a breathalyzer and arrested him for a probation violation even though he blew a 0.000.

All of this was done without a warrant. (Warrantless breathalyzer tests was not a condition of Brennan’s probation.)

If you think, it is obvious to any reasonable person that his rights were violated. Then you don’t know how the Sixth Circuit Court of Appeals interprets the Constitution.  The fact that this even went to an Appeals Court, speaks volumes about our justice system but I digress.

Let’s get back to the ruling;  judge John Nalabandian said that officer Dawson did violate Brennan’s Fourth Amendment rights by searching him without a warrant. All is good so far, right?

Not quite, Nalabandian went on to say “police actions that violate the Constitution do not lead to liability.”

The court also ruled that since officer “Dawson’s implied license was not clearly established” and because of that old police standby, “deficient training” he cannot be sued.

To say that the court’s reasoning is frustrating is an understatement. The court said that because “Wilson and Clare County were not on actual or constructive notice that the deputy training was deficient they could not be liable.”

Does anyone really think police are held to a higher standard when they constantly use the “deficient training” excuse?

If you are upset by the court’s ruling that police are not liable for violating the Constitution I warn you, it only gets worse.

Citizens must prove to judges that violating out rights is unlawful

According to the Sixth Circuit and this speaks volumes about our justice system “the plaintiff bears the burden of proving that the right was so well settled that every reasonable official would understand that what he is doing is unlawful.”

In other words, citizens must prove to a “reasonable official” [judge] that a police officer violating the Constitution is unlawful.

The Sixth Circuit claimed that since the Hardesty v. Hamburg Twp. ruling did not set a limit on how long a police officer can harass people at their homes Brennan cannot sue the police.  Even though they admitted that “absent a warrant a police officer has no greater license to remain on the property than a Girl Scout or trick-or-treater.”

The ruling repeatedly admits that “Dawson arguably violated the Constitution.” but states for a second time that “even if a government official violated a constitutional right, that official is entitled to qualified immunity.”

The Sixth Circuit refused to view the “constitutionality of the officer’s conduct or the continuing viability of Hardest and Turk.”

Not only did the Appeals court rule that Brennan cannot sue the police for violating his rights but they dismissed his unlawful arrest claim as well.

Only one judge, Karen Moore dissented and agreed like any “reasonable official” should, saying Brennan’s rights were violated and the officer could be sued.

Why is the media silent when rulings as egregious as this are taking place across the country?

Proving to “reasonable officials” that violating our rights is unlawful? America is fast on its way to becoming a police state.

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