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Appeals Court Says Right To Bear Arms Isn't A Right If Cops Are Banging On Your Door In The Middle Of The Night

from the 11th-Circuit:-try-to-answer-the-door-in-handcuffs,-if-possible dept

Qualified immunity -- a legal doctrine that originates from court decisions rather than statute -- received another boost from the federal court system last week. Qualified immunity is the concept that allows overreaching and abusive government employees and officials to stay one step ahead of accountability. If their actions don't "clearly violate" established law and/or precedent, police officers, etc. can walk away unscathed from deprivations of other people's life and liberty.

The Eleventh Circuit Appeals Court has declined [PDF] a chance to rehear a case in which the Second Amendment is implicated nearly as much as the Fourth Amendment. In doing so, no further precedent will be set, which just adds to the list of actions law enforcement officers can perform and still expect to be granted qualified immunity. If there's no precedent set, it's pretty hard to "clearly violate" it. Handy.

The short story: Andrew Scott was home playing video games with his girlfriend when someone began banging loudly on his door. Since it was 1:30 am, Scott was cautious and answered to door with a gun in his hand, pointed at the floor. He opened the door to see only a "shadowy figure" and began stepping backwards. The shadowy figure was Deputy Richard Sylvester, who immediately shot Scott six times, killing him.

Deputy Sylvester admits he never identified himself as a law enforcement officer. He also claims Scott's movement back into his apartment was perceived by him as a Scott attempting to find cover before opening fire. Perception is all that matters, and only one person's perception really matters: Deputy Sylvester's.

The district court concluded that Deputy Sylvester’s splitsecond decision to use deadly force was objectively reasonable under the total circumstances—a reasonably perceived imminent threat of serious physical harm—and was not a constitutional violation.


At a minimum, no clearly established federal law as of July 15, 2012 gave fair and clear notice to Deputy Sylvester that his conduct in these unique circumstances was objectively unreasonable and unlawful, and thus “no reversible error” was shown.

And so it goes. Cops can bang on your door in the middle of the night without announcing themselves and it's up to you not to scare them into killing you. The Second Amendment gives you the right to bear arms, but apparently not if you're going to be startled by unannounced law enforcement at 1:30 in the morning.

The dissent isn't thrilled with the decision to pass on the rehearing, noting the implications this has on two amendments: the Fourth and the Second. But especially the Second.

If Mr. Scott was subject to being shot and killed, simply because (as the District Court put it) he made the “fateful decision” to answer a late-night disturbance at the door to his house, and did so while holding his firearm pointed safely at the ground, then the Second Amendment (and Heller) had little effect.

The dissenting judges also delivered one biting sentence about the law enforcement tactics that led to Scott being killed by Deputy Sylvester.

We have never before held that police can, without justification, provoke a panic, and then hide behind it by claiming that “everything happened fast.”

It doesn't matter is the court has "held" this or not. It happens all the time. Police create the exigency, then use it to excuse every rights violation that occurs thereafter.

Andrew Fleischman of Fault Lines describes the pitiable "standard" officers are being held to by our nation's courts.

For those not in the know, officers are allowed to knock on a citizen’s door as long as they don’t exceed the boundaries of what any door to door salesman or Girl Scout might normally do. Here, the Court figured that it wasn’t clear the officers exceeded the boundaries of a knock and talk, because it’s typical for four Girl Scouts to take up tactical positions around your door at 1:30 in the morning, pound your door, and then shoot you when you answer it. As one appellate judge noted in upholding the grant, it’s not like the officers had helicopters.

Literally, that’s the standard. No helicopters hovering overhead. Still, as far as qualified immunity analysis goes, that might be right.

By refusing to rehear the case, the Eleventh Circuit has refused to discuss raising the bar for qualified immunity, much less move forward towards something that might further protect so-called "enshrined" rights like the multiple amendments violated in this case.

Every time a court declines to reexamine a case, the QI bar remains static. Add up enough non-decisions and the bar begins to drop.

Even though Deputy Sylvester was leaping from one hunch to another. Even though it was one in the morning. Even though he failed to consider that a reasonable person might come to his door armed in response to aggressive late-night knocking. Even though a “knock and talk” is supposed to be a friendly, consensual encounter, and there is nothing consensual about answering your door to find a gun in your face. Deputy Sylvester had qualified immunity because there was no case exactly on point saying that he couldn’t make those choices.

In fact, there still isn’t. He could do the exact same thing tomorrow, and the day after, and there would be no legal consequences. That’s qualified immunity for you.

If nothing else, the courts' continued deference to officers' statements of "fear" and "split-second decisions" makes "Blue Lives Matter" laws excessively redundant. Here's Scott Greenfield's take on the consequences of (yet another) non-decision.

That an innocent person killed because of a scared cop can’t recover for the deprivation of his life is bad enough. That he was deprived of his life is even worse. That the law endorses both things, independently, under yet another judge-made exception to both the Constitution and statute reduced the law to a farce that will employ any sophistry necessary to rationalize why cop’s lives matter more than anything else.

Holding an officer accountable for rights violations is almost impossible. Those who've obtained settlements might receive something to help with medical/funeral bills and the feeling they might have made a small, positive difference. But the reality is every settlement comes with no admission of wrongdoing and -- better/worse yet (cop/citizen) -- no precedential ruling that would make it easier to hold officers accountable for their actions in the future.

Filed Under: 11th circuit, 2nd amendment, 4th amendment, andrew scott, police, richard sylvester

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