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Opinions – U.S. 4th Circuit Court of Appeals: 2/14/11

Civil Rights

Qualified immunity

BOTTOM LINE: Police officers who suspected a man of child pornography lacked qualified immunity from suit for their no-knock entry into the man’s home, notwithstanding the fact that the man and his wife were licensed to carry concealed weapons.

CASE: Bellotte v. Edwards, Nos. 10-1115 and 10-1123 (filed Jan. 11, 2011) (Judges WILKINSON, Gregory and Wynn). Argued by Jason P. Foster for appellants; Thomas E. Carroll for appellees. RecordFax No. 11-0111-60, 30 pages.

FACTS: Samuel Bellotte went to a Walmart self-service kiosk to develop some photos. When he went to collect them, an employee told him he could not have the photos because they depicted nudity. Bellotte left the store.

The Walmart worker contacted the sheriff’s department because one of the photos showed male genitalia next to what appeared to be a child’s face.

A warrant was obtained and was executed by members of three Special Operations Team (or SORT) squads, who stormed Bellotte’s home around 10 p.m. without knocking.

Hearing what she thought were intruders, Bellotte’s wife bolted from bed and went for her gun in the closet. The officers wrestled her to the ground and handcuffed her. The couple’s 12-year-old daughter allegedly woke to find several men at the foot of her bed pointing flashlights and guns at her.

The couple’s teenage son also was home. He allegedly was forced to lie prone and felt “boots in his back and a gun at the back of his head.”

Bellotte was not home when police executed the search warrant. Learning of the raid the next morning, Bellotte went to the sheriff’s office with a birth certificate and passport showing that the purported “child” in the photo was, in fact, a 35-year-old woman. No child pornography charges were filed against him.

The Bellottes filed suit in federal court in Martinsburg, W.Va. The officers claimed qualified immunity from suit. The district court rejected that claim and they appealed.

The 4th Circuit affirmed as to the lack of qualified immunity for the no-knock warrant and the son’s excessive force claim, but reversed on the excessive force claims of Mrs. Bellotte and her daughter.

LAW: The officers contend the no-knock entry was justified under the circumstances because they had a reasonable suspicion that knocking and announcing their presence would jeopardize their own safety.

The embarrassment citizens face in being linked to child pornography, so the theory goes, leads them to violence when confronted with an investigator’s presence. Such speculation hardly establishes the level of justification needed to authorize a no-knock entry.

Nor was there any indication the couple had any tendency to violence in general. To the contrary, the officers admit that holding concealed carry permits showed the couple to be citizens in good standing who passed a background check. To permit a no-knock entry on facts this paltry would be to regularize the practice, and, in effect, issue a blanket rule permitting no-knock entries in all cases involving alleged child pornographers who happen to possess a weapon in their home.

A person of reasonable intelligence would not have believed exigent circumstances existed in this situation, the majority wrote. Thus, the no-knock entry violated plaintiff’s clearly established constitutional rights and did not warrant an award of qualified immunity.

On the excessive force claims, the court found the officers acted reasonably in subduing Mrs. Bellotte and inspecting and securing the daughter’s bedroom. It reversed the denial of qualified immunity as to those claims. However, it allowed the teenage son’s excessive force claim to go forward.

DISSENT: Wynn, J., would have granted the officers qualified immunity as to the no-knock entry. While he agreed that it was unlawful, he did not think its unlawfulness had been clearly established prior to this case. The Supreme Court or 4th Circuit precedent is silent on exigent circumstances in the context of a child abuse investigation in which the child victim and multiple firearms are believed to be in the suspect’s custody, Wynn wrote.