What It Takes for Cops to Break Into Your House, Kidnap You, and Steal Your Guns (Hint: It's Not a Warrant)



Last week a federal appeals court ruled that "exigent circumstances" made it appropriate for Milwaukee police to break into the home of a local gun rights activist without a warrant. The U.S. Court of Appeals for the 7th Circuit conceded that the officers may have violated the Fourth Amendment when they forced open a locked container and seized the woman's handgun. But the court concluded that they were protected by qualified immunity because it was reasonable for them to believe their actions were legal. After all, they were only trying to protect her. From herself.

The decision shows how a single contested remark during a psychotherapy session can strip a law-abiding citizen of her Fourth and Second amendment rights. It also shows how emergency exceptions to the warrant requirement that usually applies to home searches have been stretched to encompass situations that cannot reasonably be viewed as emergencies.

It all began with a call to police around noon on March 22, 2011. Michelle Bentle, a Milwaukee psychiatrist, reported that a patient, Krysta Sutterfield, had talked about suicide during a session that had just ended. According to Bentle, Sutterfield, who had recently received some bad news, said, "I guess I'll go home and blow my brains out." Sutterfield later contradicted Bentle's account, although it is not hard to imagine someone in distress saying something like that without any serious suicidal intent. In any case, that alleged remark was the basis for all that followed—that and the fact that Sutterfield, who was known to exercise her Second Amendment rights by openly carrying a pistol, "had worn an empty gun holster to her appointment, from which [Bentle] surmised that Sutterfield owned a gun."

Police decided to rescue Sutterfield, but it took a while. At first she wasn't home, although evidently she heard the cops were looking for her, because she phoned Bentle around 2:45 p.m. "stating that she was not in need of assistance and that the doctor should 'call off' the police search for her." Bentle passed that information on to the police, who were undeterred. After the call indicating that Sutterfield was alive and well, two officers filled out a Statement of Emergency Detention by Law Enforcement Officer, the form that Wisconsin law prescribes for situations in which police believe someone is mentally ill and apt to harm himself. That form, which requires no judicial approval, is enough for a psychiatric detention lasting up to four days, which may result in further detention and forcible treatment.

The cops did not actually break into Sutterfield's home until after 9 p.m. that night, more than nine hours after Bentle's original call. They said they were forced to do so because Sutterfield would not let them in, insisting she did not need their help. The federal judge who initially considered Sutterfield's civil rights lawsuit cited her refusal to cooperate as further evidence of her mental illness, saying she was behaving "erratically." After all, a sane woman would gratefully greet armed agents of the state seeking to cart her off to a mental ward. Demonstrating how dangerously unbalanced she was, Sutterfield even called 911 to report an unlawful break-in. Audio of the encounter was therefore available to the judges hearing her case. Here is how the 7th Circuit describes what happened next:

Sutterfield can be heard on the recording telling the officers that she was fine and that she did not want anyone to enter her residence. After informing Sutterfield of his intention to open the storm door forcibly if she did not unlock it herself, [Sgt. Aaron] Berken yanked the door open and entered the house with the other officers to take custody of Sutterfield pursuant to the statement of detention. A brief struggle ensued. Sutterfield can be heard on the 911 recording demanding both that the officers let go of her and that they leave her home. (Sutterfield would later say that the officers tackled her.) Sutterfield was handcuffed and placed in the officers' custody.

All of this was perfectly fine, the appeals court concluded, because the police were offering "emergency aid" when they forced their way into Sutterfield's home and kidnapped her. Sutterfield may not have seen it that way, the 7th Circuit said, but "how were the officers to know that Sutterfield was competent to assess the state of her own mental health or that, regardless of what she herself said, there was no longer any risk that she might harm herself? Only a medical professional could make that judgment, and the officers had prepared and were executing a section 51.15 statement for the very purpose of having her evaluated by such a professional." An allegation of suicidal intent, in other words, makes you presumptively incapable of judging your own interests, so that rejecting help is interpreted as a cry for help.

True, the court said, the passage of more than nine hours between Bentle's report and Sutterfield's detention casts doubt on the idea that she posed an imminent threat to herself and on any claim that there was no time for a judge to approve the home invasion. But who is to say when the emergency created by the announcement of a suicidal urge has passed? And even if the police had decided to seek the blessing of a magistrate, the 7th Circuit observed, it is not clear what sort of order would have done the trick.

The court agreed with Sutterfield that the cops probably went too far when they broke into the locked compact disc case containing her pistol. She was already in custody at that point, and "the case could have contained almost anything." Still, the cops might have thought the search was legal, and there were "powerful arguments in favor of the temporary seizure of the gun as a prudential measure."

One officer said he worried that Sutterfield's son, whose "specific age was unknown" and who therefore might have been a juvenile, would return to the house during his mother's enforced absence, break open the case, and accidentally shoot himself or someone else. Another officer worried that Sutterfield might be released from the hospital, come home, and then use the gun to kill herself. The police also seized "a BB gun made to realistically resemble a Glock 29 handgun," ostensibly based on the fear that Sutterfield, upon her release, might "use it to provoke a police officer to shoot her." Never mind that Sutterfield would be released only if mental health professionals decided that she was not suicidal.

In short, the cops had "benevolent reasons" for doing what they did, which they reasonably believed was legal. So even if they violated Sutterfield's constitutional rights, they cannot be held legally responsible for doing so. "The intrusions upon Sutterfield's privacy were profound," the appeals court conceded. "At the core of the privacy protected by the Fourth Amendment is the right to be let alone in one's home." Yet somehow that core can be penetrated by a combination of psychiatric hearsay and good intentions.

[Thanks to Slammer for the tip.]