Consent can mean a lot of things when you’re accosted by cops. Law enforcement officers tend to feel it’s always voluntary, even when you’re sitting in an interrogation room for what the “good cop” refers to as a “friendly chat” meant to “clear everything up.”
Whenever a seizure is challenged, if cops didn’t have the requisite reasonable suspicion or probable cause to support the stop, they and their lawyers will almost always claim the stop was consensual and the person now suing or trying to suppress evidence was free to go.
I’ve witnessed a lot of really terrible government arguments while covering terrible police work for Techdirt. But this one [PDF], handled by the Sixth Circuit Appeals Court (following an appeal by the state), has to be the argument furthest disconnected from reality I’ve seen yet. (h/t FourthAmendment.com)
The timeline leading the Fourth Amendment violation is pretty clear. There are recordings of the incident, which alone makes it an anomaly. From those recordings and testimony of all involved, the Sixth Circuit reconstructs the late evening welfare check that devolved into (police) violence.
Officers were sent to the home of Mark and Sherrie Campbell following two hangup calls to 911. The deputies did not activate their emergency lights once on the property but aimed their headlights at the front door. Deputy Fox knocked on the front door but did not state he was a law enforcement officer. Mark Campbell answered and asked the deputy through the closed door if the officer had a gun. This conversation (such as it were…) continued for a few more seconds.
Mark Campbell then told the deputy he “had one too” (referring to gun possession). He then opened the door. Deputy Fox then turned back to the door and fired two shots through it. The other deputy (Christopher Austin) tripped and fell to the ground. Deputy Fox asked if Deputy Austin was OK and then turned and fired six more shots through the front door. All of this occurred within 30 seconds of the officers’ arrival.
While there are recordings, they don’t clear anything up. The deputies saw something that could have been a gun, which possibly excuses the violent response.
The parties dispute what the officers saw when Mark began to open the door, and the video footage does not resolve the dispute. Mark says he may have had a cell phone in his hand, but not a gun. Both officers contend they thought Mark had a gun. However, there is evidence that on the evening of the incident, the officers did not know what, if anything, Mark was holding.
The evidence is this: no firearm was found on the property after the officers entered the residence. Also of note: while Mark Campbell was charged with two counts of aggravated assault on the officers, those charges were dismissed.
The couple sued, alleging Fourth Amendment violations stemming from the incident. And they won at the lower level, prompting the government’s appeal, much of which hinged on the government’s assertion that the whole thing was a consensual interaction that was only complicated by Mark’s statements and actions.
Oh hell no, says the Sixth Circuit, summing up the whole debacle in one devastating sentence. Whatever might apply to Mark and his “I’ve got one too” statement alluding to a gun did not apply to the other person in the house, who was definitely held against her will by law enforcement until the situation was resolved.
In view of all the circumstances here, a reasonable person would not believe that he or she was free to leave a house while an officer repeatedly fired at the front door.
It’s sad that it takes a court — and not just the first level of the judicial system — to state the obvious. No person would feel free to leave when several officers are present in the front yard. And they definitely would not feel free to end the interaction after an officer fires eight bullets through their front door.
Really just extremely obvious stuff. And yet, the court has to explain this to the willfully obtuse law enforcement officers who continued to claim no one was seized despite the officers in the yard and the bullets flying into the house. Whatever Mark Campbell did (including returning to the porch after the hail of gunfire) has no bearing on rights violation perpetrated on his wife.
It also makes no difference whether Fox knew Sherrie was also inside the home. We have explained that when an officer seizes one person by shooting at a car, for example, the officer seizes everyone in the car, even if the officer is unaware of the presence of passengers.
As for the claim the gunfire was justified because of Mark Campell’s statement about (alleged) gun possession, the Appeals Court says this cannot be resolved at this level. Mere gun possession is not a justification for police violence. Officers must clearly show their safety (or the safety of others) was at risk. Furthermore, despite Campbell’s statement (and officers’ testimony), no gun was recovered from the home.
This all seems amazingly clear. And yet, there’s a dissenting opinion — one that claims officers did not perform an unlawful seizure of Campbell’s wife, despite repeatedly firing through the front door of the house. Many arguments are raised by the dissent, but they all ignore the crucial central fact: no reasonable person would assume they were free to terminate an interaction with law enforcement that involved an officer firing their gun into the residence. Precedent isn’t the issue. It’s the reasonableness. And the officers’ arguments are anything but reasonable. Qualified immunity denied.
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