In the past I have tended to give police and law officials the benefit of the doubt in their using police powers to make arrest and such. I think I am going to have to retract that, or at least put up a huge caveat. And I now think that maybe bad reasoning, and bad perception of reality as expressed in legal decisions, is a fully satisfactory basis for removing judges from the bench. The 9th Circuit needs to have several judges removed from its ranks, and replaced with people who have a connection with reality.
The court ruled last September that telling a homeowner “let me in or I will take your kids away from you” can constitute an action against which there is no legal remedy, even though the person making the threat has no authority to enter the home and the homeowner is perfectly aware of it, and is (in real time) being affirmed in that by his lawyer. So, effectively, threatening kidnapping in order to be given an open door to home invasion, is OK.
Facts of the case :
1. L-family in Arizona moved into a house before it was fully completed.
2. County officials had signed off on it to be suitable for habitation.
3. Jan 7 the county CPS received anonymous tip that kids were subject to neglect: unsafe living conditions such as exposed wiring.
4. CPS leaves business card at residence Jan 10.
5. Jan 11, CPS and parents make an appointment in March for home viewing.
6. Family joins HSLDA. That org requests full list of allegation in anonymous complaint. CPS refuses.
7. Family retracts the appointment.
8. Mar 9, two CPS officers stop by house, with a county deputy and a volunteer “posse” member in uniform, and demand to see kids and enter house.
9. L parents refuse to grant entry.
10. CPS threatens “we have to take your kids away for up to 72 hours” if we can’t get in.
11. L’s get their lawyer on phone, but CPS won’t talk to him, they refer him to assistant DA.
12. Deputy calls for assistance, 2 more deputies, and for advice from sarge on phone. Eventually, sarge tells deputy that they have no exigent circumstances for basis to search home, and need a search warrant to enter over parents' objections.
13. CPS gets the assistant DA on phone, who talks to L-parents’ lawyer, and tells them they would take temporary custody of kids if not allowed to enter.
14. L-parents, in fear of arrest and having the kids taken away regardless of their resistance, give in and permit CPS to enter.
15. Within 10 minutes, CPS determines that the allegations were groundless and complaint will be closed.
16. L-parents sue CPS and sheriff officials for unreasonable entry.
17. Officials claim qualified immunity: they were just carrying out their official duties.
18. District judge denies deputies’ motion for summary judgment to dismiss: under the facts claimed, there is sufficient basis to try the case.
19. The infamous 9th Circuit overturns district judge, grants motion to dismiss the suit: Deputies were justified in their coercive entry because they had reason to believe probable cause existed. As a result, the entry is not considered “coercion” as far as the law goes.
My thesis comes in 3 parts. First, it is obvious that at least with respect to the manner this whole thing was carried out, the CPS officers should be fired for not putting the welfare of the children above their pissy little egos. You won’t be surprised that both CPS officials are women. Women may make great employees for handling kids, but I am not the first person to notice that they do sometimes seem to act like little napoleons when they have force of arms behind them. In addition to being fired, these CPS officers should be liable for civil claims, because their behavior did not comply with law and _probably_ did not comply with county policy. They had no business threatening to take the kids away without exigent circumstances, which they didn’t have. They were FLAT 100% wrong in claiming that the 4th Amendment doesn’t apply to them.
Secondly, the deputies (who also are being sued) are idjits and jackasses for hiding behind the stupidity of the CPS women. The deputies are claiming that it seemed “viable” that CPS should threaten to take the kids away, and this meant that the deputies’ telling the family to cave in and let them in was not something a reasonable officer should have known was out of bounds. Somehow, even though the CPS people didn’t even give lip service to (a) describing the information they had that presented probable cause, or (b) explaining why they didn’t have to follow the 4th Amendment, to the deputies these lapses meant the deputies could ignore those minor defects as well.
Thirdly, the 9th Circuit has finally gone too far, and positive measures should be taken to get rid of at least half of them, more likely the bulk of them. They are simply out of control. In this case, they DISMISSED the case, claiming a reasonable officer would “not have known that consent was not voluntary” when the deputy withdrew his “initial threat to enter the Ls' home without a warrant.” OK, the deputy initially (feeling his oats pretty well, with his weapon on hip) told the family the officials would enter without a warrant. Later on in the 40 minute debate he said that they could get a warrant, implicitly indicating that the sheriffs would not force entry without a warrant. However, at no time did he volunteer that his sergeant said there was no exigent circumstance providing a basis for entry without warrant, and the CPS officers continued unrelentingly demanding entry “or else we’ll take the kids away.” The continued presence of (by that time 5) deputies who persisted in backing up the CPS officers claims without one word of qualification is clear coercion. But even if for somebody the matter of fact is in doubt, THAT’s what trials are for – deciding the facts. The 9th’s decision to settle the case in absence of a determination of the facts about the threats is just WRONG law. And the 9th's own wording tells against them: the deputies " had reason to believe probable cause existed" is also wrong: either "probable cause" exists, or they don't have "reason to believe" that threatening to take the kids away is OK. They were already told by their sergeant that they didn't have exigent circumstances for entry without a warrant.
It is possible that the L’s didn’t react with the best possible strategy, but damn it they didn’t just barricade the doors, they let CPS see the kids from the balcony, and they got their lawyer on the phone. It was CPS who refused to listen to the lawyer. The 9th Circuit is saying that effectively there is no remedy for this: the deputies didn’t ought to have known better, (that entry was coercive), because there was a prior case that determined the “If that threat had remained unabated, ... consent could properly be set aside as involuntary” and they presume that the officers couldn’t know that the threat had remained unabated. WELL, what do you know, we can’t take the time to try the facts and find out whether the threat really had been abated, now can we? Oh, no, the 9th has to make sure that families have no recourse against the intrusions of the state into every facet of their lives, and threats of kidnappings are OK by state officials.
Why do I get the sense that if the deputies had been pursuing an illegal alien or drug dealer and made the same threats, the evidence observed upon home entry would be thrown out and the charges would be dropped by the same court? Hmmm? Do we use the law to PROTECT criminals and to INVADE law-abiding citizens?
I don’t send out letters to my congressmen and senators nearly often enough, but I will on this one. The judges need to be given a sharp lesson, and being made to answer for this is just the right step. I used to think simply being in error was not grounds for a judge being impeached, but this is too much. It’s not just that they are wrong, it’s the egregious way they concluded the matter, and their manipulation of law to provide no recourse to citizens when those with police powers are clearly outside their authority.