Rutherford Institute Asks U.S. Supreme Court to Rein in Aggressive, Coercive, Potentially Violent Knock-and-Talk Practices by Militarized Police

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.”



Appeals Court: Police can violate our rights without fear of being sued

Delivered by The Daily Sheeple


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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WSJ Reporter: We’ve Confirmed the Worst – US Intel Truly Was Spying on Trump Camp

by Cillian Zeal

 

A Wednesday piece by The New York Times which details the FBI’s investigation into Donald Trump’s 2016 presidential campaign may have revealed more than intended, at least if a Wall Street Journal reporter who has covered the surveillance previously is correct. 

The Journal’s Kimberley Strassel has written about the investigation in the past. In a piece last week, she posited that the FBI may have used a mole in the Trump campaign, particularly given the Department of Justice’s reluctance to turn over information about the informant to congressional investigators.

The Times piece revealed more details about the Trump campaign surveillance operation — called “Crossfire Hurricane” in reference to the Rolling Stones song “Jumpin’ Jack Flash” — and just how extensive it was. While the tenor of the article, which was written by Matt Apuzzo, Adam Goldman and Nicholas Fandos, is overwhelmingly favorable to the FBI and dismisses any claims that the surveillance was politically motivated ,(“I never saw anything that resembled a witch hunt or suggested that the bureau’s approach to the investigation was politically driven,” one DOJ official is quoted as saying) there were a few things buried deep in there that specifically caught Strassel’s attention.

In a tweetstorm Wednesday evening, Strassel noted key problems in The Times’ narrative, particularly when the story appeared and significant facts that they glossed over. 

Strassel first argued that the article was a calculated leak of sorts in an effort to get out ahead of House Intelligence Committee Chairman Devin Nunes and the information that he’s gathering and releasing regarding the FBI’s sources on the Trump investigation. 

1. So a few important points on that new NYT "Hurricane Crossfire" piece. A story that, BTW, all of us following this knew had to be coming. This is DOJ/FBI leakers' attempt to get in front of the facts Nunes is forcing out, to make it not sound so bad. Don't buy it. It's bad.

However, she says it proves what Trump was claiming all along: namely, that his campaign was being spied upon. 

Biggest takeaway: Govt "sources" admit that, indeed, the Obama DOJ and FBI spied on the Trump campaign. Spied. (Tho NYT kindly calls spy an "informant.") NYT slips in confirmation far down in story, and makes it out like it isn't a big deal. It is a very big deal.

— Kimberley Strassel (@KimStrassel) May 17, 2018

The story briefly mentions that “one government informant met several times with Mr. Page and Mr. Papadopoulos, current and former officials said. That has become a politically contentious point, with Mr. Trump’s allies questioning whether the FBI was spying on the Trump campaign or trying to entrap campaign officials.”  However, if that informant met several times with two low-level Trump campaign officials, one wonders just what his role — if any — in the Trump campaign might have been. It seems somewhat unlikely that a random individual outside the campaign would have had the opportunity to meet with both George Papadopoulos and Carter Page without some suspicion being aroused if the informant didn’t have extremely close ties to the campaign.


Federal Judge Rules Indiana Seizing Cars With Civil Forfeiture Is Unconstitutional

 

Nick Sibilla , Contributor

 

In a major win for private property rights, a federal judge ruled that Indiana can no longer seize vehicles under its controversial civil forfeiture laws, which allow police to confiscate property without filing criminal charges. Judge Jane Magnus-Stinson ruled that Indiana's laws were unconstitutional because they failed to provide a timely hearing for the property owner to contest the seizure.

The decision comes just days after Hoosier lawmakers held a summer study committee to discuss forfeiture reform, and less than a month after U.S. Attorney General Jeff Sessions announced a new policy to expand police seizures nationwide.

The case began last September when an officer with the Indianapolis Metropolitan Police Department pulled over Leroy Washington and found a small amount of cannabis. Police charged Washington with dealing marijuana and seized his car.

But Washington fought back. With help from Jeff Cardella, a criminal defense attorney and law professor at Indiana University, he filed a federal class-action lawsuit last November on behalf of other owners whose cars were held by law enforcement in Indianapolis. Between November 2016 and February 2017, those agencies seized at least 169 vehicles, or 11 cars per week on average. After he filed his lawsuit, Washington was able to recover his car, though he was still able to represent the class of owners. 

The lawsuit claimed that Indiana’s forfeiture laws violated the car owners’ right to due process, as guaranteed by the Fifth and Fourteenth Amendments. In Indiana, once property is seized, law enforcement can take up to 180 days to file a forfeiture complaint, i.e. a lawsuit to permanently confiscate the seized property. If the owner demands their car back, the deadline drops to 90 days from the date of the demand.

 Even worse, the property owner cannot challenge the seizure during that months-long hold period.  That is because, under state law, seized property is “not subject to replevin,” a process that would allow the owners to regain wrongfully taken property while awaiting trial. In other words, Hoosiers would have to wait up to six months before they could even challenge a seizure in court. That even includes innocent, third-party owners (typically parents and spouses) who did not know or consent to their property being used in any criminal activity. 

As Judge Magnus-Stinson noted, losing one’s car for months on end “could cause significant hardship:”

During those months, if the owner has secured financing to purchase the vehicle, he is still required to make payments on that loan, lest he risk foreclosure and repossession. He is also required, of course, to make other arrangements for his transportation needs, which may include fundamental life activities such as transit to a job or school, visits to health care professionals, and caretaking for children or other family members.

In order to prevent “erroneous deprivation” and to safeguard due process, property owners must be “provided with some sort of mechanism through which to challenge whether continued deprivation is justifiable.” As the U.S. Supreme Court noted almost 25 years ago, “our precedents establish the general rule that individuals must receive notice and an opportunity to be heard before the Government deprives them of property.”

But Indiana’s forfeiture laws ban replevin and do not allow any other “opportunity for interim relief," which raises grave due process concerns. According to Judge Magnus-Stinson, “there is no judicial determination of probable cause for the seizure,” which means that “the only process that an individual receives prior to a forfeiture hearing is a law enforcement officer’s determination that probable cause exists for an arrest.”  That is, by definition, a one-sided affair.

“Allowing for the seizure and retention of vehicles,” she wrote, “without providing an opportunity for an individual to challenge the pre-forfeiture deprivation [is] unconstitutional.”

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