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Fourth Circuit Denies Qualified Immunity for Botched SWAT Raid
The Agitator ^ | 03/23/2011 | Radley Balko

Posted on 03/23/2011 11:33:29 AM PDT by The Magical Mischief Tour

It wasn’t a drug raid. But the details are fun. From the opinion:

On May 31, 2007, Sam Bellotte printed some photographs from a memory card at a self-service station in a Winchester, Virginia Wal-Mart. When he went to pay for the prints, a clerk insisted on inspecting the photos. Mr. Bellotte admitted that some contained nudity and surrendered them, then made other purchases and left the store.

The Wal-Mart employees charged with discarding the photos noticed one depicting male genitalia seemingly next to a child’s face. Concerned that the photograph was child pornography, the employees notified the Frederick County police. An investigation of the surveillance camera footage and credit card receipts showed that Mr. Bellotte, a resident of Jefferson County, West Virginia, had printed the photo in question. A Frederick County police officer placed the photo in a file container and notified the Jefferson County Sheriff’s Department, which then took responsibility for the investigation. After reviewing the file, verifying Mr. Bellotte’s address, and learning that both Mr. and Mrs. Bellotte held concealed carry permits, Detective Tracy Edwards sought a search warrant for the Bellotte residence. Around 9:00 that evening, the magistrate reviewed the application and signed the warrant.

In order to execute the warrant, Detective Edwards sought and received approval from the ranking Jefferson County law enforcement officer for the assistance of the Jefferson County Special Operations Team (“SORT Team”). The SORT Team leaders decided that their involvement was justified due to the possibility of a violent reaction from Mr. Bellotte and the concealed carry permits held by both Mr. and Mrs. Bellotte. After the three SORT squads were assembled and briefed, they arrived at the Bellotte residence around 10:15 p.m.

The three squads took positions around the house, wearing tactical vests and helmets and armed with flashlight-equipped.45 caliber Sig Sauer pistols and “hooligan” pry bars for a possible forced entry. Then, the Bellottes claim, the SORT squads opened the unlocked front and rear doors without knocking or announcing their presence. They immediately executed a dynamic entry—a technique that the SORT Team had recently been trained in—by which all squads simultaneously rushed into the home from multiple entry points. After the SORT squads were inside the house, they repeatedly identified themselves as law enforcement officers executing a search warrant.

The first member of the family to encounter the SORT Team was E.B., the Bellottes’ teenage son. When the officers found him upstairs walking out of his bedroom and talking on a cell phone, they subdued and handcuffed him. E.B. asserts that the officers also poked a gun at the back of his head. In another bedroom, the team found C.B., the Bellottes’ young daughter, and led her downstairs unhandcuffed.

When the SORT Team came to the parents’ bedroom, Tametta Bellotte raced out of bed and ran screaming toward the closet. When she reached for a gun bag, the officers forced her to the ground and handcuffed her. Later, when the house was secured, the SORT Team allowed Mrs. Bellotte to get fully dressed under the supervision of a female officer. The search of the Bellotte residence concluded shortly before midnight.

Sam Bellotte was actually on a hunting trip at the time. When he learned of the raid on his family, the same man police thought was so dangerous that they had to send a SWAT team to his home late at night walked into the police station, explained the situation, and provided documentation that the person depicted in the photo was a 35-year-old Filipino woman.

A couple other points here. First, I still wonder why gun rights groups like the NRA aren’t more disturbed by the ubiquitous use of SWAT teams. Here, the fact that the Bellotte’s were legal, registered gun owners was used as justification for the violent, volatile entry into their home. It isn’t the first time this has happened. You’d think that’s something that might concern Second Amendment acitivists.

Second, the police were right. Tametta Bellotte did immediately go for her gun when the SWAT team entered. But not because she’s a cop-killing, child pornographizing criminal. As it turns out, she was innocent. She went for her gun because she thought her life is in danger.

That said, it’s good to see the Fourth Circuit decline qualified immunity here. And it would be nice to see federal courts allow more liability for botched raids.


TOPICS: Business/Economy; Crime/Corruption; Government; News/Current Events
KEYWORDS: banglist; fourthcircuit; govtabuse; jbt; jbts; swat

1 posted on 03/23/2011 11:33:34 AM PDT by The Magical Mischief Tour
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To: The Magical Mischief Tour

Here is the full legal opinion: http://www.leagle.com/xmlResult.aspx?xmldoc=In%20FCO%2020110111068.xml&docbase=CSLWAR3-2007-CURR


2 posted on 03/23/2011 11:34:06 AM PDT by The Magical Mischief Tour (With The Resistance...)
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To: The Magical Mischief Tour
First, I still wonder why gun rights groups like the NRA aren’t more disturbed by the ubiquitous use of SWAT teams. Here, the fact that the Bellotte’s were legal, registered gun owners was used as justification for the violent, volatile entry into their home. It isn’t the first time this has happened. You’d think that’s something that might concern Second Amendment acitivists.

Needs repeating for the law-and-order-at-any-cost crowd here...

3 posted on 03/23/2011 11:35:53 AM PDT by The Magical Mischief Tour (With The Resistance...)
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To: The Magical Mischief Tour

BJ from bar girl = Home invasion + holding gun to his son’s head?

$10 million. Or maybe cut the PD’s budget in 1/2, and slide 1/2 of it his way.

Hey...this has to STOP.


4 posted on 03/23/2011 11:38:28 AM PDT by gaijin
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To: The Magical Mischief Tour
When he went to pay for the prints, a clerk insisted on inspecting the photos. Mr. Bellotte admitted that some contained nudity and surrendered them, then made other purchases and left the store.

Well, there's Mr. Bellotte's mistake right there. "Self service" means self...service. Wal*Mart has no control over what you print, so they then have no accountability for not controlling it. It is in turn none of their friggin business. Mr. Bellotte should have told the clerk to stick his nose in a different unmentionable place.

5 posted on 03/23/2011 11:42:33 AM PDT by Still Thinking (Freedom is NOT a loophole!)
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To: The Magical Mischief Tour

I hope they end up having to rename Jefferson County after the family.

The misuse of SWAT teams must stop.


6 posted on 03/23/2011 11:42:36 AM PDT by TSgt (Colonel Allen West & Michele Bachman - 2012 POTUS Dream Team Ticket!)
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To: The Magical Mischief Tour
The judge who issued this warrant needs to be not be a judge and some jail time for this gross exhibition of poor judgment. But we all know that people with law degrees are above the laws of this land.
7 posted on 03/23/2011 11:43:05 AM PDT by fella (.He that followeth after vain persons shall have poverty enough." Pv.28:19')
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To: The Magical Mischief Tour
provided documentation that the person depicted in the photo was a 35-year-old Filipino woman

That's prolly gonna require some explanation to the missus.

8 posted on 03/23/2011 11:48:12 AM PDT by colorado tanker
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To: TSgt
No dog to shoot? Limp cop weiners all around............

Why is it that these raids always occur at night? Why is that a tactic? Why not raid the house when nobody is at home, the judge is at his bench, the chief of police is on duty, the kids are at school, and mom is grocery shopping?

Overtime I suppose?

9 posted on 03/23/2011 11:50:42 AM PDT by blackdog
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To: The Magical Mischief Tour
After the SORT squads were inside the house, they repeatedly identified themselves as law enforcement officers executing a search warrant.

That shouldn't be enough to keep the homeowner from being able to ventilate them with full legal impunity, until they can explain why home invaders would never be able to do the same thing.

Plus, if only the safety of a potentially innocent homeowner OR the safety of the LEO can be guaranteed, that of the homeowner has to come first. Why should the onus be on the householder to guess correctly whether the invaders are his employees or more unofficial home invaders?

The homeowner is a taxpayer, the LEO's are tax CONSUMERS; the homeowner is on his own private property, the LEO's are not; the homeowner doesn't get to select the time and circumstances of the confrontation, the LEO's do.

10 posted on 03/23/2011 11:51:43 AM PDT by Still Thinking (Freedom is NOT a loophole!)
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To: The Magical Mischief Tour; SmithL; Eyes Unclouded; Rodney King; Redcitizen; ellery; dcwusmc; ...
"Whoops... Sorry, citizen. We thought you were someone else" PING

Click the link to be added to the "Whoops. Sorry, citizen. We thought you were someone else" PING list.

11 posted on 03/23/2011 11:51:56 AM PDT by The KG9 Kid
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To: colorado tanker
If the couple has been married a long time, the missus might have been the one with the camera. I've seen some mighty strange adult relationships which seem to thrive in a pretty bizarre fashion. It's not a vanilla world out there.

Final word is that the Walmart Clerk can exercise life or death decisions on it's customers. Be nice to them!

12 posted on 03/23/2011 11:56:43 AM PDT by blackdog
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To: blackdog

You’re probably right. Eeeeewwwwwwww.


13 posted on 03/23/2011 12:02:30 PM PDT by colorado tanker
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To: Still Thinking
Plus, if only the safety of a potentially innocent homeowner OR the safety of the LEO can be guaranteed, that of the homeowner has to come first. Why should the onus be on the householder to guess correctly whether the invaders are his employees or more unofficial home invaders?

A point that I've made many times, but to the law-and-order-at-any-cost crowd here it don;t matter, the cops can do no wrong and your job is to simply submit.

14 posted on 03/23/2011 12:04:57 PM PDT by The Magical Mischief Tour (With The Resistance...)
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To: The Magical Mischief Tour

Submit or die, and that’s not in the family dog’s playbook.


15 posted on 03/23/2011 12:13:10 PM PDT by blackdog
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To: blackdog
Final word is that the Walmart Clerk can exercise life or death decisions on it's customers.

Only if you submit. Why the heck did the guy feel obligated to discuss what pictures he had printed at a SELF-SERVICE kiosk with some pimply faced drone with a smock and a God complex? "FOAD" would have been the appropriate response.

16 posted on 03/23/2011 12:15:16 PM PDT by Still Thinking (Freedom is NOT a loophole!)
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To: Still Thinking

If you see something, say something, was spawned with Walmart.


17 posted on 03/23/2011 12:16:44 PM PDT by blackdog
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To: The Magical Mischief Tour
When he went to pay for the prints, a clerk insisted on inspecting the photos.

It sounds like walmart has a surveillance capability that lets clerks see the photos you are downloading. Anyone know?

18 posted on 03/23/2011 12:17:29 PM PDT by jdub (A patriot must always be ready to defend his country against his government.)
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To: blackdog

Dovetails nicely with with my motto “Mind your own fuggin business or lay in a supply of orthopedic shirts and drool cups.”


19 posted on 03/23/2011 12:19:47 PM PDT by Still Thinking (Freedom is NOT a loophole!)
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To: jdub
It sounds like walmart has a surveillance capability that lets clerks see the photos you are downloading. Anyone know?

It wouldn't surprise me in the least. I heard the other day that high-end copiers have hard drives with duplicates of every image they've ever copied.

20 posted on 03/23/2011 12:22:07 PM PDT by Still Thinking (Freedom is NOT a loophole!)
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To: The Magical Mischief Tour

Radley Balko needs to learn a bit more about pro-RKBA
groups other than the NRA, which now supports “reasonable”
gun laws, including registration. Gun registration is
a necessary condition for confiscation, which would involve
more raids, SWAT and otherwise. Off the top of my head,
David Hardy has written about the one of the biggest
law enforcement atrocities, Waco, and also has the site
Arms and the Law about the 2nd Amendment/RKBA.


21 posted on 03/23/2011 12:30:18 PM PDT by cycjec
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To: fella; The Magical Mischief Tour

The best solution I’ve seen anywhere is a comment at
The Agitator early this month (March 2011) by one “supercat”
who suggested that the reasonableness of a search be
made an issue for the jury. IANAL. I don’t know how current
precedent or established law would stack up agains this
idea. However given that current police practice strongly
suggests that the law as it stands is pernicious, a change
might be in order.


22 posted on 03/23/2011 12:35:17 PM PDT by cycjec
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To: The Magical Mischief Tour
Too many cops now view armed citizens from a Mikey Bloomberg perspective, and it only takes a few.

Tom Jefferson was dead on target in his opinion of large cities being detrimental to liberty.

23 posted on 03/23/2011 12:36:56 PM PDT by SWAMPSNIPER (The Second Amendment, A Matter of Fact, Not a Matter of Opinion)
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To: The Magical Mischief Tour

Thanks for posting. I am an NRA-ILA volunteer and I sent this to my contact at the NRA.


24 posted on 03/23/2011 1:02:52 PM PDT by thethirddegree
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To: The Magical Mischief Tour

1st they couldn’t be bothered to do the minimum sureveillance to ensure with certainty their perp was even home?

What if their grandfather had been there babysitting the kids and reached for a weapon out of fear for his family and his life?

He very well might be dead and the victim of Sheer and Complete, Incompetent, Stupidity that required a conscious act of ignorance and a total disregard for another human being’s life.

What if the kid went for the gun?

These violent and dynamic entries should not be used on 99% of all their targets.

Too often they turn out to be mistaken identity, the wrong home and dogs dead.

This BS is happening to innocent more and more and it has to end.

There is nothing stopping them from picking up a perp on the street. They’ll tell you it’s safer this way but the FBI waits you out and then does just that. Takes you down on the street.

They aren’t interesting in seeing what’s behind door number 2 when they can see the trophy in plain view and daylight.

I think of the mayor in Maryland whose home was broken into and their dog shot. The whole thing was a case of sloppy police work and mistaken identity.

It’s unnecessary and no longer acceptable as Standard Operating Procedure.

STOP.


25 posted on 03/23/2011 1:09:44 PM PDT by Vendome ("Don't take life so seriously... You'll never live through it anyway")
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To: The Magical Mischief Tour

BTW, how could they not tell the woman in the picture was of age? Just a hunch and that’s all they need to damage your property, injure you, kill your dog or even accidentally kill you?

Under Color of Law which has immunity from mistakes?

Unreal.


26 posted on 03/23/2011 1:11:23 PM PDT by Vendome ("Don't take life so seriously... You'll never live through it anyway")
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To: Vendome

Botched Paramilitary Police Raids:

An Epidemic of “Isolated Incidents”

http://www.cato.org/raidmap/


27 posted on 03/23/2011 1:20:07 PM PDT by The Magical Mischief Tour (With The Resistance...)
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To: Vendome

Welcome to Amerika...


28 posted on 03/23/2011 1:20:59 PM PDT by The Magical Mischief Tour (With The Resistance...)
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To: The Magical Mischief Tour

I left Amerika 20 years ago when I left Oklahoma.

I live in Kahleefohrneeyah


29 posted on 03/23/2011 1:46:08 PM PDT by Vendome ("Don't take life so seriously... You'll never live through it anyway")
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To: The Magical Mischief Tour

That’s just scary.

In one instance the police fired 39 rounds into a house with 3 small children in it.


30 posted on 03/23/2011 1:53:00 PM PDT by Vendome ("Don't take life so seriously... You'll never live through it anyway")
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To: thethirddegree

“... I am an NRA-ILA volunteer...”

Is NRA-ILA aware of Chuckie Schumer’s latest bill to prohibit gun rights for folks who have been arrested on drug charges, but not proscecuted or found not guilty during the last five years?

JC


31 posted on 03/23/2011 3:47:36 PM PDT by cracker45 (I don't believe in coincidences!)
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To: cycjec
The best solution I’ve seen anywhere is a comment at The Agitator early this month (March 2011) by one “supercat” who suggested that the reasonableness of a search be made an issue for the jury.

Hello. >:*3 It's an idea I've suggested often. I've never read anything that would suggest that courts have acknowledged defendants' rights to put such matters before a jury, but I'm not really sure what constitutionally-sound argument would exist against it. If a jury would find a search was unreasonable, it should regard the search as illegitimate in any determinations it makes. Likewise if a jury would find that the particular facts surrounding a defendant's criminal act would mean a particular punishment would be cruel and unusual, imposition of such a punishment would be illegitimate.

To argue that a jury should not ignore pro-state evidence that it determines was gathered illegitimately, or should not acquit in cases where doing otherwise would result in someone suffering cruel and unusual punishments, would imply that a jury should not be trusted with those factual determinations. If a judge is allowed to substitute his own factual determinations for those of a jury, the concept of a jury trial becomes meaningless.

Perhaps legislatures should simplify a jury's task by replacing all the various defined crimes with one, "doing something illegal", whose penalties range from a $5 fine to execution. Rather than having to convince the jury the defendant did some particularly heinous act, it should merely have to show the defendant did something illegal. Once the defendant has been found guilty of "doing something illegal", the judge could then decide what the defendant actually did and sentence him accordingly.

32 posted on 03/23/2011 10:20:24 PM PDT by supercat (Barry Soetoro == Bravo Sierra)
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To: cycjec; supercat

Don’t be getting uppity there, Citizen. What you suggest comes awfully close to jury nullification.

Judges have been advising juries for years that it isn’t their job to put a value of reasonableness on the law a defendant stands accused of breaking; nor are they to concern themselves with the karmic rightness/wrongness of the punishment that may ensue as a product of their verdict.

Unfortunately, a lot of well-meaning people sitting in the jury box have been swallowing hard and taking the judge at his or her word. Lotta dumb ones too, of course.


33 posted on 03/24/2011 8:38:31 AM PDT by Titan Magroyne (What one person receives without working for, another person must work for without receiving.)
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To: Drumbo

No rush, just whenever you have the time to read this one. Some interesting bits along with the denial of governmental immunity for the decisions that led to this raid.

Incredible that nobody died. This mother is obviously prepared to defend her family, yet the best training in the world doesn’t account for leaving the friggin doors unlocked.


34 posted on 03/24/2011 8:50:58 AM PDT by Titan Magroyne (What one person receives without working for, another person must work for without receiving.)
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To: The Magical Mischief Tour

“After the SORT squads were inside the house, they repeatedly identified themselves as law enforcement officers executing a search warrant. “

....because no run-of-the-mill criminal has or would EVER make the same claim....

(Do I really need a sarc tag?)


35 posted on 03/24/2011 11:29:19 AM PDT by Immerito (Reading Through the Bible in 90 Days)
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To: Titan Magroyne

“yet the best training in the world doesn’t account for leaving the friggin doors unlocked.”

Some people still leave their doors unlocked during the day. Apparently she hadn’t gotten around to locking them for the night yet.

Regardless, it was the job of the cops to KNOCK and produce their warrant before entering, not to act like thieves in the night and unlawfully enter.

Imagine how scared her kids must be now. These SWAT raids are a great way to convince kids that “cops are your friends”.


36 posted on 03/24/2011 11:36:15 AM PDT by Immerito (Reading Through the Bible in 90 Days)
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To: The Magical Mischief Tour

I’m surprised CATO doesn’t have this case on its map for WV.


37 posted on 03/24/2011 11:54:45 AM PDT by Immerito (Reading Through the Bible in 90 Days)
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To: Immerito

Point taken.

When you have to lock your doors “in case the cops show up,” it’s a messed-up world.

LEOs are well aware that concealed license holders passed a criminal background check in order to get the state to at least partially recognise(!) their 2A rights. Rather than heave a sigh of relief and knock on the door like civilised human beings, they went in hard.

You kind of expect that mentality from limp-wristed libs, but it’s apparent the cops involved don’t realise they’re ALREADY surrounded by law-abiding gun owners with more forebearance than they deserve. Militarized LEOs treating the taxpaying great unwashed as the enemy have gotta go.


38 posted on 03/24/2011 12:31:51 PM PDT by Titan Magroyne (What one person receives without working for, another person must work for without receiving.)
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To: Titan Magroyne
Don’t be getting uppity there, Citizen. What you suggest comes awfully close to jury nullification.

Jury nullification occurs when juries put themselves above the law. Sometimes that is a right and proper thing for a jury to do, but it is nonetheless a form of anarchy. What I am calling for is for jurors to put the law above the desires of totalitarian anarchist judges.

39 posted on 03/25/2011 10:59:43 PM PDT by supercat (Barry Soetoro == Bravo Sierra)
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To: Immerito

There seems to be more than a few cases missing.


40 posted on 03/27/2011 1:14:01 AM PDT by snuffy smiff (Socialism is the philosophy of failure, the creed of ignorance, and the gospel of envy.)
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To: gaijin
$10 million.

It will be split in the divorce.

41 posted on 05/17/2011 8:40:45 AM PDT by Fido969
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