Would Meek Compliance Have Saved Jason Kemp's Life?

Yesterday the ACLU of Colorado filed a federal lawsuit against five Colorado State Patrol officers in connection with the shooting death of 31-year-old Jason Kemp at his home in Grand Junction last July. According to KKCO, the local NBC affiliate, Trooper Ivan Lawyer and Cpl. Kirk Firko "were called to an accident near Glade Park Road and South Broadway involving a pickup pulling a trailer and jet ski" in which "the jet ski fell off the trailer and the truck was stuck in a neighbor's yard." Callers "said it appeared as if the three people trying to remove the truck were intoxicated." When Lawyer and Firko arrived at the scene, the men were gone, but the troopers followed them to Kemp's house down the street. Kemp refused to let them in, saying (correctly) that they needed a warrant. Together Lawyer and Firko kicked in the door, and Lawyer shot Kemp in the chest at close range. Later he claimed that "Kemp lifted and extended his arm upward as if he was pointing a gun at him," but no weapon was found anywhere near his body.

Last fall a grand jury indicted Lawyer on charges of criminally negligent homicide, second-degree assault, illegal discharge of a firearm, first-degree criminal trespassing, prohibited use of a weapon, and criminal mischief. Firko faces two counts of first-degree criminal trespass, two counts of criminal attempt to commit first-degree criminal trespass, and criminal mischief. They have not been tried yet. In addition to Lawyer and Firko, the ACLU, which represents Kemp's parents, is suing Sgt. Chad Dunlap, who also was at the scene, and two training officers who it argues "were responsible for the constitutionally deficient training of Lawyer, Firko, and Dunlap." Mark Silverstein, the ACLU of Colorado's legal director, explains:

The state troopers were investigating a minor accident that resulted, at most, in minimal damage to a neighbor's lawn. They suspected Jason was responsible for this minor accident and may have been driving under the influence of alcohol. But that provided no legal justification for proceeding without a warrant, drawing their guns, and attempting to kick down Jason's front door. It certainly provided no justification for shooting him dead.

Jason was killed because he did what every American has the right to do. He insisted that police comply with the Fourth Amendment and obtain a warrant before entering a person's home.

For reasons I explain in my column today, Silverstein probably should have qualified that statement: Every American outside of Indiana has that right. In concluding "there is no right to reasonably resist unlawful entry by police officers," the Indiana Supreme Court cited the potential for violence when citizens fail to comply with illegal demands by armed government agents. Does Jason Kemp's death reinforce that argument, or does it suggest that police are already too apt to ignore people's Fourth Amendment rights, a tendency that the Indiana Supreme Court only encourages by insisting that meek compliance, possibly followed by a lawsuit after the fact, is the only appropriate course when confronted by police officers acting like criminals?

The ACLU's complaint is here.

[Thanks to commenter K for the tip.]

Comments

[Robert]

What were they thinking??!

[JoshINHB]

They were thinking that America is a police state and that those police can do whatever the fuck they want.

And they are mostly right.

[juris imprudent]

That contempt of cop (telling them to get a warrant) is a capital offense.

[Joe M]

Jacob is definitely picking up Radley's slack, but I hope these assholes are destroyed by the ACLU.

[deified]

It's my sense that these days, you won't be able to find 12 people without at least one of them holding the disposition that "Cops should never be sent to prison. They are special people who don't have to play by the same rules as the rest of us."

So that's my prediction: no prison time for the police officer.

[cynical]

That's why you need to spend more time on jury duty -- so you can identify these people, drop a box of weed on their porch while they're asleep and call the cops saying that it seemed like some sort of big drug deal was going down. Also, if mercy has completely vacated your heart, tell the cops you thought it looked they all had guns and were looking for an excuse to use them.

[Sy]

Just one? I'd up that to three or four.

[Some Guy]

Why even waste money on the one? The cops will probably bring their own to plant on the body afterward.

[bey]

I agree. And people who DO think that way are subservient losers. No wonder the economy is in such a mess.

[TheZeitgeist]

Increasingly, I want to booby-trap my domicile. Anything to slow the clowns down and make them retreat for overwhelming backup will at least give time to call my lawyer and the media while the fuzz wait for their tank.

After all in absence of Constitutional protections the only thing left is physical protection itself.

[sarcasmic]

I recall some guy booby trapped his warehouse because it was being repeatedly burglarized, and when a burglar was killed by a shotgun blast the property owner was successfully prosecuted.

[Zeke]

The case is Katko v. Briney, 183 N.W.2d 657 (Iowa 1971).

[deified]

Nice cite.

[TANSTAAFL]

"Briney mounted a spring loaded shotgun in his unoccupied house, the shotgun severely injured Katko's leg when he entered the house. Katko sued." He won.

"Four years after the case was decided, Briney was asked if he would change anything about the situation. Briney replied: 'There's one thing I'd do different, though, I'd have aimed that gun a few feet higher.'"

[TANSTAAFL]

The notable quotation from the decision is:

"the law has always placed a higher value upon human safety than upon mere rights in property"

Even the safety of filthy, thieving pieces of amphibian shit, unfortunately.

[Cheeseburger]

Booby traps will get you a prison sentence. You even have to check the law before reinforcing doors. The "OMG crackhouses have vault doors installed!!11!!!!" scare got some places to pass laws against "fortifying your home to resist police" See Oklahoma.

[herve villechaize]

Seriously? Reinforcing doors is criminal? That is ridiculous; I wish I didn't learn that today.

[deified]

Whoa, he's really here. Herve has risen, Hallelujah!

[T]

I'm fortifying to resist zombies. That it also stops police is but a happy coincidence.

[Sy]

Dear Oklahoma,
Thanks for making it easy on us.

-2011 Tornado Season

[Tulpa]

It'll be funny when you're gasping for breath on the floor of your bedroom suffering a massive heart attack and the EMTs attempting respond are executed by your booby trap.

Or if your house catches fire, and the same happens to the firemen.

[Colonel_Angus]

I don't think they are allowed to forcibly enter anyway. If your door is locked, they won't come in.

[MattJ]

If your body is lying on the floor, dead, then somebody has to come in. Your home can't be your tomb, because your heirs have a right to remove your body from their property.

[Colonel_Angus]

Obviously. If there are signs that someone might be dead inside, they will eventually come in. There's a horrible smell, no one is getting the mail. But they say if you are having a heart attack, unlock the door if you can. They won't come in otherwise.

[Gerald Sills]

I like the way you think; like a free man, in a supposedly free nation. This is precisely the purpose of our 2nd Amendment, and it should be used to the fullest extent. I truly like the home protection, delaying devices.

[Pablo]

Meek compliance doesn't guarantee anything. Just ask Eurie Stamps' family.

[Matrix]

He was black, so it's different...

[deified]

New York's largest crew, it's the Men in Blue/
We stick together like glue and make lies come true/
My name's Officer O'Maley, I shoot you in the alley/
And burn you like a cross at a fuckin' Klan rally

[Gingerbread Man]

Too bad there isn't very many Americans who have the balls to stand up to illegal police action. Then again suicide by cop doesn't sound like a good idea, unless you have a ton of armed people to back you up. Although considering how they're rolling APC's with a .50 cal and gold spinners, good luck.

http://www.constitution.org/uslaw/defunlaw.htm

[TheZeitgeist]

Sadly, in Iraq it is simple to monkey-see/monkey-do on ways to defeat (easily) all but the most heavy armor. Especially considering its a bunch of amateur fatties working the armor, instead of Marines.

[cynical]

Why is that sad?

[TheZeitgeist]

That's what they say. But such as it is...

[P Brooks]

The state troopers were investigating a minor accident that resulted, at most, in minimal damage to a neighbor's lawn.

Silverstein is apparently operating under a misapprehension.

This was a crime against The State.

[sarcasmic]

The guy may have been intoxicated.
That was the crime against the state.

[Sal Paradise]

Wow, even the pigs' spin on the the murder doesn't sound good.

"Trooper Lawyer and Corporal Firko have been placed on unpaid administrative leave pending the outcome of the proceedings. "

unpaid usually means even the Chief thinks you're guilty.

[Joe M]

Yeah, you almost never see UNpaid leave.

[Police Chief]

"What are the odds we'll win the lawsuit? Wow, 98%'s pretty good! What's the damages on that other 2%? HO-LEE-SHIT! A million % chance of winning isn't even worth the risk! Too bad, I woulda backed 'em up otherwise."

[Some Call Me. . .Tim]

First the Federal Ninja raiding the milk freezer and now this. Gah.

[Fartriloquist]

"If the police do it, it isn't illegal."

Everyone should memorize that.

[Kristen]

$20 to the Colorado ACLU in thanks for this severe box kick.

[Erik Maulbetsch]

Much appreciated, Kristen. Law enforcement agencies all across Colorado show a frightening disregard for the Constitutional and a particular habit of excessive force. Denver has paid out over 6 million dollars in settlements over excessive force incidents against its police dept in just the last five years. We invite you and all of reason's readers to join us at our new site: http://www.race2justice.org

[Zeb]

Isn't raising one's arm up and forward also something that a person might do while raising his hands over his head because armed men are pointing guns at him?

[db]

Everyone should know that you don't move unless the police order you to. Because they are police. And you don't do shit unless ordered. By AUTHORITAH.

[SugarFree]

Don't worry. A lawsuit and a civilian review board will magically make him come back to life.

[db]

He's appealing the action through proper legal action post-event. THE SYSTEM WORKS.

[Kristen]

+googol

[Len]

Per MNGs version of the system.

[Joe Mama]

Is that you Janet?

[Trooper]

YOU WILL RESPECT MY AUTHORITEH!!

[semm]

Question: Does locking and/or refusing to open your door constitute 'resisting unlawful entry?' (I can hardy believe this even needs to be asked.)

After all, the police can search your house without a warrant if you allow them to. How is a person even supposed to act (in Indiana at least) when the police are at your door and say: 'Let us in, we need to make sure there is no illegal activity going on'? You don't have the right apparently to 'resist' any unlawful entry and yet you need to be able to claim you didn't give permission for the police to enter and search.

[SugarFree]

You can sue them afterwards. Or your widow can. THE SYSTEM WORKS. (thx, db.)

[Mainer]

Obviously in Indiana, it doesn't matter how you act. You either consented or you resisted, and you don't have a right to resist.

[Zeke]

I think it was LewRockwell.com that referred to it as "the Rapist Doctrine": Don't resist, you'll only make it worse.

[Tulpa]

I seriously doubt that locking a door constitutes resistance, but IIRC Xenocles and I had a conversation about this on the Indiana ruling thread and we couldn't find any case where that question had actually come up.

How is a person even supposed to act (in Indiana at least) when the police are at your door and say: 'Let us in, we need to make sure there is no illegal activity going on'?

If you do not physically resist, but do state that you don't consent to a search, then they have to have a warrant or PC for any evidence found to be admissible.

Well, unless they lie and say you gave consent, which is always a potential problem.

[sarcasmic]

In my experience the police to not ask for consent, they tell you that you are giving them consent and then proceed with their search.

[Tulpa]

Uh, the fact that the police say you are giving consent does not make it so.

[sarcasmic]

Uh, unless you can prove otherwise, if they say that you are giving consent then as far as a judge is concerned you just gave them consent.

[Rapist]

Exactly. I get away with that excuse every time.

[Tulpa]

IMHO we need to get rid of the "consent" justification for searches. Few actually dangerous criminals are going to consent to a search and it opens up too many possibilities for police abuse.

[herve villechaize]

How would eliminating consent reduce the possibilies for police abuse?

[Contrarian P]

It would make them have to produce a warrant anytime they conducted a search, rather than just asserting that they heard someone give consent, which is impossible to disprove in court.

[West Texas]

"This court rules that actions speak louder than words and accordingly, even though Plaintiff verbally protested the officers' entry into his home, the fact remains that he still opened the door for them, which, according to international law, is a sign of invitation. Case dismissed."

And conversely,

"This court rules that, as consistent with existing jurisprudence, Plaintiff had no right to refuse the officers entry into his home and even had a positive duty to enable them to enter. As such, by locking the door and refusing to allow the officers access to the home, this court rules that the officers had no choice but to suspect the worst and shoot Plaintiff in the chest while rightfully forcing their way into the home. Case dismissed."

[Tulpa]

I'm interested in actual court rulings, not exercises in creative writing.

[Tulpa]

This is obviously a horrific story of police abuse of power, and both officers involved need to spend time in jail or perhaps something worse. I would totally favor the death penalty for the fellow who kicked in the door and shot the one who refused him entry under color of law.

But...it has zilch to do with the Indiana ruling. There is no evidence that Kemp offered any resistance whatsoever beyond closing the door.

Since we're posing hypotheticals, how about this one, Jacob? Officers get warrant for suspected drug trafficking house at 123 Main St, but due to a typo the warrant is produced with the address 132 Main St, and thus invalid. Officers knock on door of 123 Main St, and present warrant when occupant 1 answers. Officers enter house and are immediately shot dead by occupant 2.

Is occupant 2 prosecutable for murder? Not if resistance to an unlawful search is permissible.

[Cheeseburger]

Once occupant 1 let them in the door it was lawful. But of course we know they wouldn't knock on the door and wait to be let in. They would have kicked it in and used flash bangs at 0'dark thirty.

[Tulpa]

I never said occupant 1 gave consent. Police with a valid warrant can walk in the door whether the person who opened it gives consent or not.

But just to remove trivial technicalities, let's say occupant 1 explicitly stated "I do not give consent to this search."

[SugarFree]

Assuming your scenario of polite police, a warrant with a typo and non-dynamic, daylight service of a warrant, I'd say that is the sort of illegal entry that could--and should--be remedied with a lawsuit. Even though it would never see the light of a courtroom because the officers were acting in good faith.

Murder? Maybe. There is no way, with the warrant, for the occupant to know that the entry is illegal, like in a "refuse consent to warrentless-search and they kick in your door" or the "one occupant welcomes them in", like in Indiana.

IMO, the Indiana case was decided way too broadly based on the facts of the case. A broadness that wasn't necessary and smacks of a judge with an ideological ax to grind.

[Tulpa]

Well, I would say that the occupants definitely have a right to resist if they had significant reason to doubt that the people entering are police, so right there we take care of a lot of the horror stories of people shooting cops in their homes during "dynamic entries".

I think that's a much better tack to approach the issue with than claiming a blanket right to resist any unlawful police entry.

[SugarFree]

I lot of my problem with legally adjudicating governmental action is the presumption of good faith on the part of government actors, in the courts and in public opinion. The prejudice of who you give the benefit of doubt to is the bloodiest miscarriage of justice.

[sarcasmic]

"the presumption of good faith on the part of government actors"

Especially since it is common knowledge that police routinely lie in order to trick and manipulate people into saying things.

Why should they act any differently in the courtroom?

[prolefeed]

Officers knock on door of 123 Main St, and present warrant when occupant 1 answers. Officers enter house and are immediately shot dead by occupant 2.

Is occupant 2 prosecutable for murder? Not if resistance to an unlawful search is permissible.

Occupant 2 is prosecutable for murder, because the police had a search warrant and thus it was not an unlawful search.

[Fist of Etiquette]

The indictment says Lawyer worried he'd left Kemp alone long enough for him to grab a weapon. He went back to the front door where Kemp was still barricading it with his body.

I think that's resistance beyond just closing the door. The men are kicking at the door and the homeowner is using his own body to resist that violent entry.

[Fat Crack Ho]

"Since we're posing hypotheticals, how about this one, Jacob? Officers get warrant for suspected drug trafficking house at 123 Main St, but due to a typo the warrant is produced with the address 132 Main St, and thus invalid. Officers knock on door of 123 Main St, and present warrant when occupant 1 answers. Officers enter house and are immediately shot dead by occupant 2.

Is occupant 2 prosecutable for murder? Not if resistance to an unlawful search is permissible."

Probably best to get the info right on the warrant, eh?

Here's a hypothetical for you: officers break down door and point their weapons at Kemp; however, Kemp is able to draw and fire, killing both officers. Should he be prosecutable? Or is his being dead instead a more acceptable outcome for you?

[ola]

C'mon, obviously the police had a reasonable suspicion that Kemp was destroying evidence. By not letting them in, Kemp was giving them the probable cause that he was destroying evidence of driving under the influence. After all, he was respiring, perspiring, and maybe even urinating (ie toilet flush), all classic examples of destroying evidence.

[db]

This is a good point. By continued metabolic activity, he was clearly engaged in destruction of evidence of intoxication. Clearly the police had the right and duty to stop said destruction by any means.

[ola]

Sounds like something Scalia would say.

[Robert Enders]

Most of my experience with the local police has been positive. Having said that, if they show up and I didn't call them, I want to know that they have a legitimate reason for entry before I unlock the door. I'm not so crazy that I would actively resist, but I don't want to imply consent by opening the door. So if they have a warrant, I'll open the door. However, if they cannot establish to me that they have a legit reason to enter, then the damage to my door shall serve as material proof that I did not want them to come in.

[sarcasmic]

That damage may include a bullet hole.

[Tulpa]

Repeat after me: "I do not consent to this search."

It will save you some door replacement money and, so long as you're not actually doing something illegal, save quite a bit of other hassles.

[Matrix]

What if the cop says that you did give your consent, but later changed your mind? Your word vs his. You're screwed.

[sarcasmic]

Unless you have recorded evidence that you told them you did not consent, they can perform their search and tell the judge that you gave consented.

Cops routinely lie. It's part of the job.

[Matrix]

But then they'd bust your ass for wiretapping.

[bey]

And perhaps, go outside, close the door behind you, and then, smile and say.."I do not consent to searches*.

[West Texas]

And the damage to your body will serve as evidence that you threatened them.

[Kristen]

At which point he can follow Minge's plan and sue the shit outta them from the grave!

[prolefeed]

Every American outside of Indiana has that right.

No, everyone in Indiana also has that right. Now, the state might wrongfully violate that right because a court there ruled wrongfully, but the right still exists.

[Restoras]

True. Good luck with that.

[West Texas]

Amen. To say otherwise is to fall into the land of the European constitution and MNG.

Great catch.

[P Brooks]

I wonder if it would be considered "harassment" to put up billboards with Jason Meek's picture on them which say, "Remember me!"?

This is the sort of stuff I would do if I actually *was* an eccentric millionaire.

[db]

Yes. These would go up all along the officers' commute paths, all around the police station, mayor's office, etc. I would hire a polling agency to call a good percentage of local resident's homes asking if they approved of the police's actions...

[Kristen]

I'd be afraid of the results of such a poll.

[WarrenT]

I hope Officer Lawyer's middle name starts with "A".

[Xpired]

+1

[adam]

"Occupants who choose not to stand on their constitutional rights but instead elect to attempt to destroy evidence have only themselves to blame."

Guess we have to add to that, "Occupants who do choose to stand on their constitutional rights will be shot."

[wither]

"...the only appropriate course when confronted by police officers acting like criminals..."

The police officers in question were not acting like criminals during the incident. They were in *fact* criminals.

[JUKK]

It is long past time to take these disgusting pigs out.

[dontodd]

We should only hire vampires as cops since on True Blood they can't enter a human's house without an express invitation. Then, if there's an isolated incident the cops could cut themselves and give their blood to the guy that had it coming to him anyway. Still looking for a workaround on that whole daylight thing...

[bey]

+1 Excellent idea.

[Juice]

The cops actually got charged?!

[Juice]

He insisted that police comply with the Fourth Amendment and obtain a warrant before entering a person's home.

How many times do I have to say this? The 4th amendment does not require a warrant for a search. All that is required is that a search not be unreasonable, which means whatever they want it to mean. The 4th spells out how a warrant should be issued if a warrant is required by some other law or standard.

[toyotabedzrock]

We need public disclosure and participation on the development of an entirely new training program for police.

And the country has to learn that police should not be given any slack when it comes to following the law.

They are supposed to enforce it and if they are not subject to it means the law is invalid.

Further they need to be less aggressive and accept that their occupation is dangerous. Without this danger you end up employing people without the moral fortitude to act responsibly on the job.

[AmericanPatriot]

Fiction of a not to distant future: American police no longer have a right to be secure or free from preemptive self defense. It no longer makes sense to not have a plan for killing police who come to your home (unless of course they have an actual warrant), because it seems that police will kill you if you piss them off or ask that your rights be respected, which seem to be the same thing. Americans should at all times be armed, and if they come to your home, make sure everyone in your home knows the plan, then, when they illegally bash your door down, set off the claymores you've made, and finish off the survivors. Then, there is no "he said, she said" crap with the lying criminals.

The above is a fictional (yet possible) result of current police actions in the not too distant future if they don't back the hell down and start obeying the Constitution. I know for a fact that people are no longer going to trust police, and that in some cases, they'll be very ready for police raids.

If this is not nipped in the bud, I think we're going to see an all out war against the police. One that will force me to take my family to a safer country... like China. God I never thought I'd say something like that.

[mjdc]

"The cops actually got charged?!"

@Juice: Jason Kemp was white.

[sara]

capricorn aurora

[asiseeit]

it seems to me, as long as they keep the illegal patriot act, it doesn't matter if the police have a warrant or not, they can do, pretty much, as they please. don't forget the secret laws which can have you incarcerated for unknown reasons.

[Termopane]

So, what's the catch here ?
Plase Insecte

[Padre]

1st: Fortify your home to resist criminal entry. As part of that fortification, be sure you have an extensive lawn sprinkler system from house to street. Install a secondary access line to said system.
2nd: When criminals fail to enter and bring more gang members to force entry, flush your anti-gang system with pressurised gasoline once they're all in your property. Then ask by P.A. if they feel lucky.

So the answer to criminal home invasion is to throw a good, old fashion barbecue!

[jimmy cee]

If cops were smart enough to practice law they wouldn't be enforcing it.

[V.A.]

unFORTUNATELY this is how the police are being trained. The large body of law enforcement is former military, as such their training is diametrically opposite of the Constitution in dealing with the American people.
The men and women that go into public security as a career, are for the most part good citizens, however because of a culture that presents might as right, they are lost to us as fellow Americans, instead we have overseer's in their place.
All Americans must resist this conduct, must. We are not the enemy, we are the people. It should never be forgot.

[ricbee]

The police are running rampant over civil rights in every state. The ACLU is throwing too wide a net tho. It must get those two killer cops.

[Tom Schrah]

I was ran over while riding my motorcycle by Kirk Firko in 2002. It was on purpose with his patrol car and he lied saying his brakes went out. Nobody believed him including the Judge that stated " I believe you lied in your testimony Trooper Firko".
Since then talking with other motorcycle riders Firko's name has repeatedly come up as a trooper that targets motorcycles. Not so bad just lying but laughing about it 2 weeks afterwards shows his contempt for others. He knew my car and pulled he over a month after for speeding, ( I wasn't) and stated Ha Ha you get a ticket now. My only reply was "well better than an ambulance. He is a nut case and deserves no mercy.

[have-a-warrant]

From this site we know that A warrant is a report to provide services or goods. It is like Finance Warrant. So don't allow collectors take advantage of a person. Call your authorities if you feel these are running a rip-off.