Fourth Circuit Denies Qualified Immunity for Botched SWAT Raid

Wednesday, March 23rd, 2011

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.

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32 Responses to “Fourth Circuit Denies Qualified Immunity for Botched SWAT Raid”

  1. #1 |  V-Man | 

    Will they be suing Wal-Mart as well?

    (Why do they check the pictures? Sort of defeats the idea of having a self-serve printer, no?)

  2. #2 |  Andrew S. | 

    C’mon Radley. You know the NRA would never say anything that would go against the police.

  3. #3 |  Terence | 

    All SWAT teams should be outlawed immediately. And the two-bit thugs who populate them should all be put in Prison for life.

  4. #4 |  Elliot | 

    It would also be nice if the NRA didn’t routinely come to compromises with Democrats, allowing them to further encroach on gun owners’ rights.

    This is yet another example of what gun registration gets you. Again, something the NRA doesn’t fight on principle.

  5. #5 |  Elliot | 

    Damn, I just realized that if I saw this on Huffington Post, not only would there already be 20 comments stereotyping gun owners as racist inbred rednecks, but if my comment actually made it past the censors, it would probably take a few hours, during which time 100 more idiotic comments would have made it ahead of me. Anyone who might have been looking for reasoned, thoughtful discussion would be sickened by the mess and go elsewhere.

    I am so going to miss this place.

  6. #6 |  Buddy Hinton | 

    http://www.theagitator.com/2011/01/16/sunday-links-49/#comment-547521

  7. #7 |  André | 

    This is one of the better passages:

    “In any event, Detective Edwards, as had others, wrongly concludes that this 35-year-old female is a 5 or 6-year-old child. Her imagination kicked in and she concluded without any foundation that this may be a kidnapped child being held in the non-existent basement at [the Bellottes’ home].”

    Also this:

    “Qualified immunity is meant to protect against liability for ‘bad guesses in gray areas.’ […] This was not a bad guess. Not a single one of the officers’ proffered rationales provides a reasonable, particularized basis to justify their conduct.”

    Elliot: He said he would still run his blog here, IIRC.

  8. #8 |  Tim | 

    For everybody harping on the NRA, remember that they are a single-issue organization: the second amendment. They specialize in action regarding legislative bodies attempt to curtail second amendment freedoms. Calling for the NRA to jump in on a fourth amendment issue is like criticizing the Innocence Project for not getting involved in the recent Amazon sales tax disputes.

    We’d be better served by the ACLU in this instance; but since it involved a gun owner, the chances of that are fairly slim.

  9. #9 |  J.S. | 

    I agree with Andrew from post #2. The NRA generally licks badges without thinking and in general support registration laws.

    V-man, they check the photos at Walmart often because its state law. If they don’t they could get sued for negligence. Damned if you do, damned if you don’t. Oregon lawmakers have passed a bill last week that will require computer tech workers to report “images of child pornography” they might on customer’s computers. That was a response to a court ruling that it wasn’t illegal to view “child porn” online if it wasn’t intentionally downloaded. That didn’t please the AG…

    So, don’t print anything “naughty” on public walmart printers (and pray that no one interprets any non nude pics as something illegal). Also, “shred” or wipe your internet browser history regularly. Heaven help ya if some link/phishing email hijacks your browser/computer to a porn site or a virus/trojan downloads illegal or otherwise porn to your machine unknown to you for distro to others.

  10. #10 |  J.S. | 

    Tim, thats the problem. The NRA drags out the “2nd ammendment only” canard every time it might take away from their racket/lobbying power. The NRA lost any political credibility in my mind with the Disclose Act nonsense last year.

    These people were stereotyped because they were law abiding gun owners. Oh wait, no that means they’re militia/domestic terrorist types for merely owning guns.

  11. #11 |  scott | 

    I’m fascinated by the thought that a person who would expend the time, effort and money necessary to pursue a CCW permit would automatically be regarded by LEOs as violent and dangerous. It’s a strange paradox because if having a CCW is proof that someone is violent and or dangerous, wouldn’t that be grounds to deny the CCW in the first place?

  12. #12 |  JThompson | 

    @scott: Not to mention the very act of getting a CCW permit means the person was actually bothering to obey the law, which is rare in violent criminals. It’s kind of what makes them criminals.

  13. #13 |  Marty | 

    11 and 12- my main hesitancy in getting ccw is being in another govt database as a gun owner. I cannot see how this benefits me or my family and this story points out another reason why I should be hesitant. MO laws allow people to carry in their vehicles, which is the main place I carry…

  14. #14 |  SJE | 

    I am very pleased with this decision. I am especially pleased that it came from the 4th Circuit which, to those who don’t know, is much more conservative and deferential to government police powers. The reason many suspected terrorists from overseas were jailed or tried in the mid-atlantic is precisely because decisions would be reviewed by this court and not, say, the 9th circuit.

  15. #15 |  Michael Chaney | 

    “Qualified immunity is meant to protect against liability for ‘bad guesses in gray areas.’ […] This was not a bad guess. Not a single one of the officers’ proffered rationales provides a reasonable, particularized basis to justify their conduct.”

    In the context of police, it’s meant to protect honest mistakes. “bad guesses” aren’t covered – they need to not be made.

  16. #16 |  Elliot | 

    Marty (#13):my main hesitancy in getting ccw is being in another govt database as a gun owner. I cannot see how this benefits me or my family and this story points out another reason why I should be hesitant.

    I see absolutely no benefit to peaceable gun owners for the government to have any information on whether they own or know how to use weapons.

    None. Nada. Zip.

    Any self-respecting gun rights organization should 100% oppose registration, licensing, etc. on the principle that it does nothing whatsoever to enhance a decent person’s ability to engage in self defense.

  17. #17 |  Bergman | 

    In a lot of states, carrying a gun disassembled (unable to fire until reassembled) inside a gun case does not constitute concealing a weapon even if the case itself is concealed (for example, carried inside a backpack).

    Might I direct Marty’s attention to the AR-7 Survival Rifle. The stock is the gun case, the gun is disassembled and stowed within it. Reassembly under stress takes about the same amount of time as dealing with most trigger locks under the same conditions. Further, as a rifle, many jurisdictions don’t require a permit for it, even if they do require a permit for a pistol. And when stowed in the case, it will fit inside a standard day pack sized backpack.

  18. #18 |  Mattocracy | 

    “In any event, Detective Edwards, as had others, wrongly concludes that this 35-year-old female is a 5 or 6-year-old child.”

    I mean, what the fuck. How does one not know the diff between an adult and prepubescent child? Such a lack of competency would get someone fired in the private sector.

  19. #19 |  GreginOz | 

    It is illegal for Peasants (oops! Citizens) to carry in Australia, as far as I am aware. Of course Sydney gets a cupla drivebys every week or so…from ,like, invisible, non-existent guns, donchahno? See, HERE only the cops & the robbers are allowed guns, to, like, create an even playing field?

    Why would a person target his family by registering a self-defence capability to the Asset Forfetuire & Puppicide Brigade? Even if the cops make a mistake (IMPOSSIBLE!) & visit you, best not too let ‘em know about your secret friend, unless it is needed.

  20. #20 |  supercat | 

    Unfortunately, I really doubt that the government will ever make any effort to prosecute the robbers in this case. A prosecutor who was interested in the Constitution would endeavor to show that the people who entered Mr. Bellotte’s house and accosted the occupants therein were not conducting a reasonable search in the manner required by the Constitution, and as such they had no legitimate basis for entering the house and accosting the occupants. The defense attorney for each cop would have to show that he was endeavoring to conduct a reasonable search, and had a reasonable belief in the legitimacy of his actions. Juries would then decide whether the cops’ actions and beliefs were reasonable, and would render verdicts accordingly.

  21. #21 |  MPH | 

    For those dissatisfied with the NRA, might I suggest Gun Owners of America? They have a serious and strict no compromise attitude on the 2nd amendment. They’ve only been around since the 1970s (http://gunowners.org/). Also, for those interested in conceal carry, try the USCCA, as it has some good information (http://www.usconcealedcarry.com/).

  22. #22 |  Michael Chaney | 

    +1 for supercat. I’ve been saying this for a long time – without the legal authority provided by a warrant, this is a burglary (by legal definition) and should be prosecuted as such. The plaintiffs in this case should also amend their complaint likewise.

  23. #23 |  Miguel | 

    Blah-blah-NRA-Blah-Blah-Do Nothing-Blah-Blah.

    Lemme see. The NRA is now a bit busy with Pro Gun Legislation and passage in Florida, Oklahoma, Wyoming, Nevada, Idaho, Texas, Oregon, Illinois, The UN and even the US Congress. Bills go form Right to Open Carry to Carry to Constitutional Carry to Campus Carry, Privacy of Gun Owners vs Doctors.

    The NRA is not the entitlement program for lazy gun owners. You don’t like something, get your ass off the chair and do something about it other than bitching in the interwebs.

    GOA has been doing….pretty much nothing other than sending email alerts and requesting funds as usual. No Compromise… yeah right. Batting ZERO in either legislation or judicial results.

    You don’t like the NRA? Fine, have you thought about joining the Second Amendment Foundation? They do court cases… Supreme Court cases. You might have heard of DC v Heller or McDonald v Chicago I presume.

  24. #24 |  albatross | 

    Peripherally related: The Obama administration doesn’t plan to give terrorism suspects a Miranda warning before questioning them.

    I assume this will expand, until almost every arrest involves terrorism somehow, and so the authorities can not warn a suspect that he doesn’t have to talk to them. Testimony gotten before the miranda warning apparently can’t be used as evidence, but I’ll bet the average suspect will not be at all clear about which parts of his questioning sessions are and are not evidence. And pretty clearly, this is what is being claimed in broad daylight–in reality, I expect all kinds of misbehavior to be done, with this as cover.

    I voted for Obama last time. That’s one mistake I won’t be repeating.

  25. #25 |  Charlie O | 

    Even I have lived in two places where it is relatively easy to obtain a CCW, I have resisted obtaining a CCW for the very reasons pointed out by #13 Marty. It is none of the government’s business what guns I may or may not own. I want to see that look of surprise and terror on that LEO when I stick my legally owned gun in his face and inquire what the fuck he’s doing in my house.

  26. #26 |  Elliot | 

    Miguel (#23):The NRA is now a bit busy with Pro Gun Legislation in [list of states]

    So bloody what? The NRA has a history of compromising with the people who falsely presume that they have the authority to violate the rights of individuals to self defense. So, excuse me if I am wholly unimpressed that they are “busy with pro-gun legislation” anywhere. They have no standing to negotiate on my behalf with people who seek to deny me my rights and I’d just as soon they go jump in a lake before presuming to speak for me.

    …have you thought about joining the Second Amendment Foundation?

    I’m in agreement with Billy Beck that the repeal of the 2nd amendment would do more than just about anything to clarify the matter.

    When people stop looking to pieces of paper for protections of their rights, right and wrong come into stark contrast.

    Your right to self defense has nothing to do with the constitution, laws, judges, or police. The fact that your life is your own is enough to morally entitle you to use the best tools available to stop those who would try to take it away.

  27. #27 |  Sinchy | 

    Is there a notice at these self print kiosks that tell people that they have no privacy? What if he refused to show the pictures?
    Why couldn’t this matter be settled by knocking at his door and asking questions? I can’t imagine what justified a violent swat raid.

  28. #28 |  Rita | 

    The excuses for “dynamic entries” are many, but in reality, there’s only ONE reason: They do it because they can.

    Disarm the police. ALL police; right now.

  29. #29 |  markm | 

    Tim: For everybody harping on the NRA, remember that they are a single-issue organization: the second amendment. They specialize in action regarding legislative bodies attempt to curtail second amendment freedoms. Calling for the NRA to jump in on a fourth amendment issue

    If you lose your 4th Amendment rights because a cop found a record that you legally use your 2nd Amendment rights, it’s also a 2nd Amendment issue.

  30. #30 |  Corey Colyer | 

    I’m way behind in my news reader feed and just came across this. Since this is a West Virginia case and I teach courses on Criminal Justice at WVU, I figured I’d work this one up as a case study for class.

    It’s important to clarify what was granted qualified immunity and what was not. The police (well, Sheriff’s dept) asserted qualified immunity for: (a) exercising a no-knock warrant without probable cause, and (b) accusations of excessive force. The Sheriff’s dept asserted (badly and without merit in my view, which is inline with the majority opinion’s view) that they had probable cause to suspect that Bellotte would be armed & dangerous, and possibly might have kidnapped a child. Therefore, they believed their tactics were justified.

    The 4th circuit actually *did* grant them qualified immunity on charges of excessive force related to their entry of the home with weapons drawn. This immunity does not extend to accusations made by the adolescent boy that they stomped on his back and held a gun to his head. Qualified immunity only extends to conduct that is legal. This allegation, if proven to be true, is illegal. The circuit court ruled that the Bellotte’s are entitled to have their day in court on that matter.

    The 4th circuit however *did not* grant qualified immunity to accusations of civil rights violations stemming from the no-knock raid. The Sheriff’s department was not able to articulate a reasonable risk. They essentially argued that they needed to storm the house because sex-offenders are “monsters” but had no compelling evidence that this potential sex-offender was a monster.

    So… on one front, this opinion reinforces or supports excessive force, use of SWAT, etc in so far as such tactics are used to decisively take control over a situation. On the other hand, it holds the police accountable for specious or fantastical scenarios for justifying using those tactics. It’s not a complete win for those of us who are concerned by the escalating militarization of our police forces.

  31. #31 |  Neo | 

    “After the three SORT squads were assembled and briefed …”

    Three SORT squads ? … to respond to two folks with “conceal/carry” ? … for one questionable “kiddy porn” picture ?

    By the reaction, before the fact, of the LEOs, you’d think that these two folks were bank robbers, drug runners or terrorists with an arsenal of weapons .. or do they have mortars and RPGs for those cases ?

  32. #32 |  Randall H. Trantham | 

    I always look for chance to chime, and I do not hide my name, unlike goons in swat clubs.

    The goons do this, b/c it’s fun! They get off on the rush. War games in the “war.”

    Why do I hate crooked police action you may ask? I had a goon raid occur in my residence based upon a just-committed search by an informant sent back into my house. Oh, neat twist: he is wearing a wire, gonna converse about pot buying I guess, of course overriding the primary SEARCH purpose. Can’t claim sales; informant is my oldest son, a DARE grad, having contacted a DARE officer, my son escorted by his mommie, my ex.

    No criminal history by me and no actions committed by me at all. Yet, I am seen all night long thru open glass, and there is nothing in the record about me having 2 pistols in a locked safe, never ever brandishing.

    Still, I get a door knock, answert the door, and am pulled out at gunpoint and whisked to jail after my home is bum-rushed.

    There is no warrant, just a backdated one much later. Think I had a malpracticing colluding son-of-a-bitch defense attorney?

    Charges dismissed, though somehow in my civil suit (dismissed by, you guessed it, qualified immunity) the reporting appellate court says there is a valid search warrant. How does that fit congruently?!

    God help us. The drone thing and some new violations of the Fourth? Nothing new; happens all the time.

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