GlockTalk.com
Home Forums Classifieds Blogs Today's Posts Search Social Groups



  
SIGN-UP
Notices

Glock Talk
Welcome To The Glock Talk Forums.

 
  
Reply
 
Thread Tools Display Modes
Old 02-02-2012, 10:07   #1
Sam Spade
Lifetime Membership
Senior Member
 
Sam Spade's Avatar
 
Join Date: May 2003
Posts: 21,477
Exigent home entry---SCOTUS covers rules

http://www.llrmi.com/articles/legal_...urn_huff.shtml

To no one's great surprise, the 9th was overturned again. There's a certain sadness when the Supremes have to Spank a Circuit on such basic stuff. Really--even a boot knows that the totality of the circumstances is what matters and that non-criminal acts can be red flags.
__________________
"To spit on your hands and lower the pike; to stand fast over the body of Leonidas the King; to be rear guard at Kunu-Ri; to stand and be still to the Birkenhead Drill; these are not rational acts. They are often merely necessary." Pournelle
Sam Spade is offline   Reply With Quote
Old 02-02-2012, 11:53   #2
Dukeboy01
Pretty Ladies!
 
Dukeboy01's Avatar
 
Join Date: Apr 2000
Location: Lexington, KY
Posts: 2,649
What was the split?
__________________
"You want it to be one way... but it's the other way." - Marlo Stanfield
Dukeboy01 is offline   Reply With Quote
Old 02-02-2012, 13:26   #3
teleblaster
Senior Member
 
Join Date: Mar 2011
Posts: 157
Well, it was a three judge panel in the 9th Circuit, not en banc, with Judge Rawlinson, a Clinton appointee for both Federal District Court, and then the 9th Circuit, who dissented and got it right. And the author of the 9th Ciruit opinion was The Honorable Algenon L. Marbley, United States District Judge for the Southern District of Ohio, sitting by designation. No really such a spank on 9th Circuit.

Last edited by teleblaster; 02-02-2012 at 13:27..
teleblaster is offline   Reply With Quote
Old 02-02-2012, 14:24   #4
Agent6-3/8
Senior Member
 
Agent6-3/8's Avatar
 
Join Date: Aug 2006
Location: The ramparts of civilization
Posts: 11,567
Good read, thanks for posting, Sam.
__________________
"The mountains are calling and I must go." -John Muir
Agent6-3/8 is offline   Reply With Quote
Old 02-02-2012, 15:01   #5
Sam Spade
Lifetime Membership
Senior Member
 
Sam Spade's Avatar
 
Join Date: May 2003
Posts: 21,477
Quote:
Originally Posted by Dukeboy01 View Post
What was the split?
Don't know. The decision was published "per curiam". No author given, no vote announced, and no dissent noted. My understanding is that it's *generally* used for something that's so obvious that it shouldn't have been brought up in the first place.

That, and the language in there, is what leads me to call it a spanking. "It should go without saying, however..." The majority's analysis "was entirely unrealistic"..."it is a matter of common sense" (that things should have been viewed differently)...

When your overseers call you unrealistic, lacking common sense, and note that you've disregarded the wise counsel of *lower* courts, I'd say you got spanked.
__________________
"To spit on your hands and lower the pike; to stand fast over the body of Leonidas the King; to be rear guard at Kunu-Ri; to stand and be still to the Birkenhead Drill; these are not rational acts. They are often merely necessary." Pournelle
Sam Spade is offline   Reply With Quote
Old 02-02-2012, 15:46   #6
RussP
Moderator
 
RussP's Avatar
 
Join Date: Jan 2003
Location: Central Virginia
Posts: 45,447
Blog Entries: 64
Quote:
Originally Posted by Sam Spade View Post
...even a boot knows that the totality of the circumstances is what matters and that non-criminal acts can be red flags.
__________________
Freedom has a taste to those who fight and almost die, that the protected will never know.

"Comment is free, but facts are sacred." C.P. Scott, 1921
RussP is offline   Reply With Quote
Old 02-03-2012, 09:37   #7
siblueg
Gray Area
 
siblueg's Avatar
 
Join Date: Feb 2008
Location: Kentucky
Posts: 123
Good read
siblueg is offline   Reply With Quote
Old 02-03-2012, 16:22   #8
4949shooter
Senior Member
 
4949shooter's Avatar
 
Join Date: Aug 2006
Location: New Jersey Republik
Posts: 13,237


Excellent read.

Thanks for posting it, Sam.
__________________
"...the men under your command deserve your leadership."-OXCOPS
4949shooter is offline   Reply With Quote
Old 02-03-2012, 17:11   #9
Morris
CLM Number
Charter Lifetime Member
 
Join Date: Apr 2001
Location: North of Seattle, South of Canada
Posts: 11,693


For those of us that live under the thumbprint of the 9th, this doesn't surprise us.
__________________
Neo-pagan, FORMER Libertarian, Cop, Gun Owner, Jewish Heritage - I'm the small talk at parties!

Certified Glock Armorer
Certified M&P Armorer

One day closer to retirement . . .
Morris is offline   Reply With Quote
Old 02-04-2012, 15:30   #10
ray9898
Senior Member
 
ray9898's Avatar
 
Join Date: May 2001
Location: Georgia
Posts: 18,122


The 9th is spanked once again.
ray9898 is offline   Reply With Quote
Old 02-04-2012, 16:00   #11
tcruse
Senior Member
 
Join Date: Jun 2011
Posts: 259
"the officers learned that Vincent had been absent from school for two days and that he was frequently subjected to bullying"

Just from this posting, I guess that I would like to know why the officers were more concerned about a "rumor" rather than the known "bullying offenses" (lack of school taking action against offenders). The first step should be firing the principal of the school.

Also, since the interview already took place between the parent and student outside the house, why would they think that there was an immediate safety problem. From the statement of the facts, no indication was noted of hostile intentent by the home owner. The residents merely ended the conversation when the police did not charge anyone with a crime. I guess that "Child Protective Services" would have had more lea way, but I would have expected them to have a court involved and a hearing before taking any action.
tcruse is offline   Reply With Quote
Old 02-04-2012, 16:00   #12
Newcop761
CLM Number 145
Charter Lifetime Member
 
Newcop761's Avatar
 
Join Date: Jan 2001
Location: In Existential Crisis
Posts: 4,705


I find it amazing that judges that are correct about 6% of the time are still employed.
__________________
Quemadmodum gladius neminem occidit, occidentis telum est.--Lucius Annaeus Seneca 'the Younger' (ca. 4 BC-65 AD)
BORDERS.LANGUAGE.CULTURE.

Last edited by Newcop761; 02-04-2012 at 17:03..
Newcop761 is offline   Reply With Quote
Old 02-04-2012, 16:13   #13
Newcop761
CLM Number 145
Charter Lifetime Member
 
Newcop761's Avatar
 
Join Date: Jan 2001
Location: In Existential Crisis
Posts: 4,705


Quote:
Originally Posted by tcruse View Post
"the officers learned that Vincent had been absent from school for two days and that he was frequently subjected to bullying"

Just from this posting, I guess that I would like to know why the officers were more concerned about a "rumor" rather than the known "bullying offenses" (lack of school taking action against offenders). The first step should be firing the principal of the school.

Also, since the interview already took place between the parent and student outside the house, why would they think that there was an immediate safety problem. From the statement of the facts, no indication was noted of hostile intentent by the home owner. The residents merely ended the conversation when the police did not charge anyone with a crime. I guess that "Child Protective Services" would have had more lea way, but I would have expected them to have a court involved and a hearing before taking any action.
Are you serious about not knowing why officers would check up on a teen who was subject to bullying? Really?

http://www.infoplease.com/ipa/A0777958.html
__________________
Quemadmodum gladius neminem occidit, occidentis telum est.--Lucius Annaeus Seneca 'the Younger' (ca. 4 BC-65 AD)
BORDERS.LANGUAGE.CULTURE.
Newcop761 is offline   Reply With Quote
Old 02-04-2012, 16:53   #14
Pepper45
Senior Member
 
Pepper45's Avatar
 
Join Date: Jun 2006
Posts: 2,520
Quote:
Originally Posted by tcruse View Post
"the officers learned that Vincent had been absent from school for two days and that he was frequently subjected to bullying"

Just from this posting, I guess that I would like to know why the officers were more concerned about a "rumor" rather than the known "bullying offenses" (lack of school taking action against offenders). The first step should be firing the principal of the school.

Also, since the interview already took place between the parent and student outside the house, why would they think that there was an immediate safety problem. From the statement of the facts, no indication was noted of hostile intentent by the home owner. The residents merely ended the conversation when the police did not charge anyone with a crime. I guess that "Child Protective Services" would have had more lea way, but I would have expected them to have a court involved and a hearing before taking any action.
Of course, the homeowners actually knowing their rights and the law is too much to ask before they try to play street lawyer. How about, "Officers, I'd like to have my attorney here before I or my son answers any more questions." Or another favorite, "Officer, we're not going to be answering any more questions. Can we go now?" Either of those would have served to end the contact without an emotionally charged scene, people running into a home where there are believed to be guns, etc.

The residents didn't "merely end the conversation", they reacted emotionally and irrationally. That very reaction gave the police the evidence needed to run into the home after them.
__________________

To view links or images in signatures your post count must be 10 or greater. You currently have 0 signatures.
Pepper45 is offline   Reply With Quote
Old 02-04-2012, 17:05   #15
steveksux
Massive Member
 
Join Date: Jul 2007
Posts: 15,593
Why would anyone think it suspicious if a homeowner runs back into their home when police on scene asked if there were guns in the house?

That's all the totality of circumstances I'd need, IMO.

The rumors of threats to shoot up the school, the absence from school, the bullying are all just worth a ride out to the house to investigate. That's all icing on the pie.

I think the pie is pretty much good without the icing... am I wrong? Add the rest and it seems blatantly obvious. But its pretty cut and dried just from racing back into the house.

Randy
steveksux is offline   Reply With Quote
Old 02-04-2012, 17:12   #16
steveksux
Massive Member
 
Join Date: Jul 2007
Posts: 15,593
Quote:
Originally Posted by tcruse View Post
"the officers learned that Vincent had been absent from school for two days and that he was frequently subjected to bullying"

Just from this posting, I guess that I would like to know why the officers were more concerned about a "rumor" rather than the known "bullying offenses" (lack of school taking action against offenders). The first step should be firing the principal of the school.
Maybe because of the potential for loss of life if the rumor were true, vs a few bruises for the bullying offenses. You dont' think the bigger issue is making sure Billy isn't loading up his AR15 for a run at the school vs making sure people stop picking on Billy?

Quote:
Also, since the interview already took place between the parent and student outside the house, why would they think that there was an immediate safety problem. From the statement of the facts, no indication was noted of hostile intentent by the home owner.
"Do you have any guns in the house?"

Cop Talk To-may-to
Quote:
The residents merely ended the conversation when the police did not charge anyone with a crime.
To-mah-toe

Quote:
I guess that "Child Protective Services" would have had more lea way, but I would have expected them to have a court involved and a hearing before taking any action.
Investigations of purported threats of shooting up a school should wait for CPS and courts?

Randy
steveksux is offline   Reply With Quote
Old 02-04-2012, 18:11   #17
tcruse
Senior Member
 
Join Date: Jun 2011
Posts: 259
Well, as an ex-teacher, I am much more concerned about the bullying that is being allowed to happen in the school rather than a rummor that probably started by the students that were doing the bullying. It is the school's responsibility to not allow such activity and they should have had numerous interactions with the childs parents and a plan to stop the problem long before calling the police.

Many times, bullying happens because the school lets it happen because the offending students have some "influence" with the school teachers or administrators. The student may have been already abused by athorities and thus there was a poor greeting to the police officers, as should have been expected. The school students and teachers were in no danger when the police were at the residense. The only possible "violence" would have been if the persons inside the house started firing on the police. If that was the plan the police forcing their way into the house would have set up a less safe condition in that the police could have been ambushed.

In any event, it was handled poorly by the school and the residents. The police, in my opinion, should have not forced their way into the house, but should have looked more closely at filing child endangerment charges against the school principal as first step. Then the child and his parents should have been invited to give a statement against the shool and not be treated as they had commited a crime without evidence. The only possible offense that the parents may have been guilty of is keeping the child home from school without a "legal" reason. I would think that walking back inside of their home should have been their right, but the laws in that location may be different. Being out for two days is not generally cause for alarm and again the first contact with the parents should have been from the school arttendance department, not a police visit.

Does anyone really believe these officers felt they were in danger?

I think that the parents should have been better at working with the police and probably should have requested time to have their attorney. The police should always be held to a much higher standard the the average citizen.
tcruse is offline   Reply With Quote
Old 02-04-2012, 18:19   #18
Sam Spade
Lifetime Membership
Senior Member
 
Sam Spade's Avatar
 
Join Date: May 2003
Posts: 21,477
Quote:
Originally Posted by tcruse View Post
"the officers learned that Vincent had been absent from school for two days and that he was frequently subjected to bullying"

Just from this posting, I guess that I would like to know why the officers were more concerned about a "rumor" rather than the known "bullying offenses" (lack of school taking action against offenders). The first step should be firing the principal of the school.

Also, since the interview already took place between the parent and student outside the house, why would they think that there was an immediate safety problem. From the statement of the facts, no indication was noted of hostile intentent by the home owner. The residents merely ended the conversation when the police did not charge anyone with a crime. I guess that "Child Protective Services" would have had more lea way, but I would have expected them to have a court involved and a hearing before taking any action.
Really not trying to make this seem like a dog-(pig?) pile...

You're doing *exactly* what the 9th got spanked for. First, you're picking apart the factors that came up instead of looking at them in the totality of the circumstances. And second, you've morphed "turned and ran" into "ended the conversation". You can't do either of those things when you're judging the split-second decision to enter a home without a warrant.

Like Randy said...if I ask someone about guns and their response is to turn and run, I will develop a very real concern about that. And I agree that cops should be held to a high standard: how many of *your* split-second choices end up on the Supreme Court's desk, or even have the potential to?
__________________
"To spit on your hands and lower the pike; to stand fast over the body of Leonidas the King; to be rear guard at Kunu-Ri; to stand and be still to the Birkenhead Drill; these are not rational acts. They are often merely necessary." Pournelle

Last edited by Sam Spade; 02-04-2012 at 18:28..
Sam Spade is offline   Reply With Quote
Old 02-04-2012, 18:32   #19
Dukeboy01
Pretty Ladies!
 
Dukeboy01's Avatar
 
Join Date: Apr 2000
Location: Lexington, KY
Posts: 2,649
In KY, a principal "allowing" bullying doesn't really meet the definition of Endangering the Welfare of a Minor, which is a misdemeanor offense.

Quote:
KRS 530.060 Endangering welfare of minor.
(1) A parent, guardian or other person legally charged with the care or custody of a minor is guilty of endangering the welfare of a minor when he fails or refuses to exercise reasonable diligence in the control of such child to prevent him from becoming a neglected, dependent or delinquent child.
(2) Endangering the welfare of a minor is a Class A misdemeanor.
Effective: January 1, 1975
History: Created 1974 Ky. Acts ch. 406, sec. 262, effective January 1, 1975.
At any rate, it's not nearly as serious as Terroristic Threatening 2nd:

Quote:
KRS 508.078 Terroristic threatening in the second degree.
(1) A person is guilty of terroristic threatening in the second degree when, other than as provided in KRS 508.075, he or she intentionally:
(a) With respect to a school function, threatens to commit any act likely to result in death or serious physical injury to any student group, teacher, volunteer worker, or employee of a public or private elementary or secondary school, vocational school, or institution of postsecondary education, or to any other person reasonably expected to lawfully be on school property or at a school-sanctioned activity, if the threat is related to their employment by a school, or work or attendance at school, or a school function. A threat directed at a person or persons or at a school does not need to identify a specific person or persons or school in order for a violation of this section to occur;
(b) Makes false statements that he or she has placed a weapon of mass destruction at any location other than one specified in KRS 508.075; or
(c) Without lawful authority places a counterfeit weapon of mass destruction at any location other than one specified in KRS 508.075.
(2) A counterfeit weapon of mass destruction is placed with lawful authority if it is placed as part of an official training exercise by a public servant, as defined in KRS 522.010.
(3) A person is not guilty of commission of an offense under this section if he or she, innocently and believing the information to be true, communicates a threat made by another person to school personnel, a peace officer, a law enforcement agency, a public agency involved in emergency response, or a public safety answering point and identifies the person from whom the threat was communicated, if known.
(4) Terroristic threatening in the second degree is a Class D felony.
Effective: June 21, 2001
History: Created 2001 Ky. Acts ch. 113, sec. 2, effective June 21, 2001.
You're living in a fantasy world if you think that the police are going to be more concerned about the picked- on loser than the idea that the picked- on loser might be planning some sort of retaliation that could result in the deaths of dozens of other children. Life is tough. Kids today really need to learn to suck it up.
__________________
"You want it to be one way... but it's the other way." - Marlo Stanfield
Dukeboy01 is offline   Reply With Quote
Old 02-04-2012, 19:56   #20
tcruse
Senior Member
 
Join Date: Jun 2011
Posts: 259
"You're living in a fantasy world if you think that the police are going to be more concerned about the picked- on loser than the idea that the picked- on loser might be planning some sort of retaliation that could result in the deaths of dozens of other children. Life is tough. Kids today really need to learn to suck it up. "


Exactly the wrong response from the authorities. You have classified the child as a "loser" and blamed the victim of the only real crime in the whole story. The "rumor" was unfounded and false. In this case the school had all of the power and did not provide a safe environment for this student.

The whole point is the following:
"A reasonable police officer could read these decisions to mean that the Fourth Amendment permits an officer to enter a residence if the officer has a reasonable basis for concluding that there is an imminent threat of violence"

Based on the write up that has been presented, my opinion is that "a reasonable basis for concluding that there is an IMMINENT THREAT of violence" was not present.
The only real violence was against the student and it was fully known before the officers went to the house. So, is real violence less import.
tcruse is offline   Reply With Quote

 
  
Reply

Thread Tools
Display Modes

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is On
HTML code is Off

Forum Jump




All times are GMT -6. The time now is 02:49.




Homepage
FAQ
Forums
Calendar
Advertise
Gallery
GT Wiki
GT Blogs
Social Groups
Classifieds


Users Currently Online: 554
128 Members
426 Guests

Most users ever online: 2,672
Aug 11, 2014 at 2:31