Skip to comments.Fourth Circuit Denies Qualified Immunity for Botched SWAT Raid
Posted on 03/23/2011 11:33:29 AM PDT by The Magical Mischief Tour
It wasnt 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 childs 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 Sheriffs Department, which then took responsibility for the investigation. After reviewing the file, verifying Mr. Bellottes 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 entrya technique that the SORT Team had recently been trained inby 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 arent more disturbed by the ubiquitous use of SWAT teams. Here, the fact that the Bellottes were legal, registered gun owners was used as justification for the violent, volatile entry into their home. It isnt the first time this has happened. Youd think thats 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 shes 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, its 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.
Here is the full legal opinion: http://www.leagle.com/xmlResult.aspx?xmldoc=In%20FCO%2020110111068.xml&docbase=CSLWAR3-2007-CURR
Needs repeating for the law-and-order-at-any-cost crowd here...
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.
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.
I hope they end up having to rename Jefferson County after the family.
The misuse of SWAT teams must stop.
That's prolly gonna require some explanation to the missus.
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?
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.
Click the link to be added to the "Whoops. Sorry, citizen. We thought you were someone else" PING list.
Final word is that the Walmart Clerk can exercise life or death decisions on it's customers. Be nice to them!
You’re probably right. Eeeeewwwwwwww.
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.
Submit or die, and that’s not in the family dog’s playbook.
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.
If you see something, say something, was spawned with Walmart.
It sounds like walmart has a surveillance capability that lets clerks see the photos you are downloading. Anyone know?
Dovetails nicely with with my motto “Mind your own fuggin business or lay in a supply of orthopedic shirts and drool cups.”
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.
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.
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.
Tom Jefferson was dead on target in his opinion of large cities being detrimental to liberty.
Thanks for posting. I am an NRA-ILA volunteer and I sent this to my contact at the NRA.
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.
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?
Botched Paramilitary Police Raids:
An Epidemic of “Isolated Incidents”
Welcome to Amerika...
I left Amerika 20 years ago when I left Oklahoma.
I live in Kahleefohrneeyah
That’s just scary.
In one instance the police fired 39 rounds into a house with 3 small children in it.
“... 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?
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.
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.
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.
“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?)
“yet the best training in the world doesnt 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”.
I’m surprised CATO doesn’t have this case on its map for WV.
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.
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.
There seems to be more than a few cases missing.
It will be split in the divorce.
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