Search and Seizure

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

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WTMJ

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.]

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  1. It used to be that exigent circumstances were mostly reasonable things, like hot pursuit. You chase a guy who shot someone in front of you into their house, you don’t have to leave and get a warrant. In hindsight, maybe we should’ve still required the warrant, but it didn’t seem unreasonable when it was limited to stuff like that, reasonableness being the real crux of the constitutional limit.

    Now we’re getting close to having no 4th amendment rights at all.

    1. “Close?” I’m unsure of what remains of it at all.

      1. You’ll see when Congress starts investigating administration officials next year.

  2. What is the lesson here, but to never, ever talk to psychologists? They volunteer to betray their clients.

    1. Well, just never let them think you might be too sad.

      1. Just wait until they come up with a theory about how you’re hiding your sadness and you need serious help before it explodes.

        1. It seems like the cops and the court have shown them the way. “You don’t want the police’s assistance? You must be deranged!”

      2. I think you are probably safe if you just never mention anything even tangentially relating to harming yourself or others.

        Dr. patient confidentiality still exists to some extent, doesn’t it?

        1. Not when all the health records are filed with the government.

        2. Dr. patient confidentiality still exists to some extent, doesn’t it?

          Of course. When your doctor quizzes you about your drinking habits and your firearm ownership, none of that information ever – EVER – gets reported to the government. Never.

    2. Had the psychiatrist done nothing and had the woman told someone that she told her psychiatrist before blowing her braains that then the lawyers would own her. You can’t lay that shit on somebody and expect them not to do something about it. The cops are the ones who grossly overreacted and overreached their authority.

      1. Then there is no value to a psychiatrist. If they are obligated by their profession and law to violate someone’s self-ownership, why would anyone who cares about their own freedom and liberty ever talk to one? You’re just exposing yourself to the ultimate Do-Gooders who can cage you with even less evidence than the justice system can.

        1. I’m not disagreeing with you. I’m just saying that laying that kind of shit on someone to make them feel at least reponsible for your life might a a consequence or two. That couldn’t have been an easy decision to make.

          1. Fine, it was a hard decision and she made the selfish choice.

          2. It was the cops that made the consequence much worse than it needed to be. I’m not defending that she called the police but I’m not going to pretend like only some evil banshee would do that. The cops made the situation what it was.

            1. But they never would have been involved if this woman hadn’t called them.

              It’s not like calling the cops was the only option available to her.

      2. Nah, sorry but the pshrink precipitated the event knowing what the cops would do about it. Sue the pshrink for all past, current and future income. Failing that, arrange for the pshink’s tragic transitive suicide.

    3. Yep. Sounds like a great to make it less desirable for people with nonviolent, treatable mental illnesses to seek appropriate care.

      Since they can’t be completely honest and would have to pick their words very carefully, it will be harder to get a complete and accurate diagnosis.

      Hooray for making things worse!

    4. Being far, psych staff are as dumb about police infringements as everyone else. They think that they’re doing good by reporting suicidal people to law enforcement, and they’re on the hook financially and professionally if they note suicidal ideation but don’t phone it in & are later discovered. Same as every other field, every incentive directs them to compliance with law enforcement and an increasingly alienating police force.

      A semester of grad school spent reading nothing but Szasz and the manifold abuses of Soviet psychiatry would go a long way toward clearing up the Pollyanna attitude toward cops and ratting on patients who’ve committed no crime, but for obvious reasons libertarian and explicitly anti-Soviet reading isn’t going to be implemented in higher education.

    5. No kidding! I mean, I understand that there have to be limits to psychiatrist-patient privilege (specific and plausible threats to the psychiatrist themselves for instance), but talking through and helping with suicidal thoughts are pretty core to the practice of psychiatry. How is a depressed person supposed to trust their psychiatrist after this event?

  3. Wisconsin law is weird. So… I’m trying to avoid reading the post a third time… so cops can fill out an order detaining someone because they’re a potential threat to themselves or others?

    In Washington, only a county-designated mental health professional (CDMHP) can make that determination, and only after a serious consultation with the afflicted. The process takes hours. The process takes so long, and is so full of checks and balances, there’s been recent complaints that they’ve been letting too many mentally unstable people go who would otherwise be considered sufficient to detain, due to a law which says if you’re not processed within X number of hours, they HAVE to let you go.

    But in Wisconsin, a cop can just go, “yeah, case for detainment order on a mental” without consulting the patient, and wham, it’s done?

    Jesus fuck.

  4. This is truly amazing.

    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

    The very reason for a huge part of my personal philosophy is that no one can actually know someone else’s mind. So, I default to leave-alone, and they to…control.

    1. Clearly, we need chips in people’s heads to know their intent. And, of course, explosives to be set off to prevent violence, but only with a warrant.

      1. but only with a warrant.

        But not for exigent circumstances.

        1. Ah, I see you know the law. So long as the brain is exploded reasonably, through due process of the disposition matrix, it’s all perfectly legal.

          1. I feel I know more about the law than I used to. I’m finding it’s much simpler than was let on.

            For instance, it seems to come down to the following decision flow chart:

            Did an officer of the law do it?

            If yes, it’s legal.

            1. See, you have to go to law school to really understand the nuances. It’s not necessarily legal because a cop does it, but there are no consequences for a cop’s action. Unless you consider a paid vacation and a full pension “consequences.”

              1. He’d also go onto disability for his pain and suffering, caused from the aforementioned act.

              2. See, you have to go to law school to really understand the nuances how to write in ambiguous ways so the laws says whatever the police think it says.

                FTFY

          2. If the government does something it’s legal. No need to complicate it any more than that.

            1. It’s even simpler. Only things expressly permitted are legal. Government employees decide what is expressly permitted. Therefore, whatever they do is legal.

              1. ? *Disclaimer* -When “they” do it, everybody else… roll the dice.

  5. This will become an everyday thing with Obamacare being used as the backdoor. And it won’t just be guns. Anything you say can be an excuse.

    Be very, very careful what you tell a doctor in the future. HIPAA and all the other privacy protections will be used for toilet paper.

    Drinking too much alcohol? Admitted to using some illegal drugs? Eating too much sodium? Don’t admit to doing any of those things? You need savin! Expect a swat team to break down your door at 3am.

    This type of crap will be more common than puppycide in a couple of years.

    1. Yeah, it was a few years back when doctors started asking people if they kept guns in their house. I gave my wife a little grief for checking that box.

      1. I got asked about that, and if there was a fence around the swimming pool. Thanks, doc!

    2. Of course the NRA types have been the ones banging the drum for the last two years about how it should be easier to institutionalize people, but yeah, let’s blame Obamacare.

      1. Which NRA types do you know that have been beating that drum? I know several NRA members and have never heard one of them say anything like that.

        1. Maybe not explicitly saying that it should be easier to institutionalize people, but Wayne LaPiere and others have been saying a lot about mental health in response to shootings in the news. Yes, many of their members are much less authoritarian, but their leaders are pretty authoritarian in many ways. I’m not too down on the NRA, I think they do good work and stick pretty well to being a true single issue group, but they are, generally speaking, hardly raging libertarians.

          1. No, he was pretty explict.

            Wayne LaPierre on MSNBC:

            I talked to a police officer the other day. He said, “Wayne,” he said, “let me tell you this. Every police officer walking the street knows s lunatic that’s out there, some mentally disturbed person that ought to be in an institution, is out walking the street because they dealt with the institutional side. They didn’t want mentally ill in institutions. So they put them all back on the streets. And then nobody thought what happens when you put all these mentally ill people back on the streets, and what happens when they start taking their medicine.”

            We have a completely cracked mentally ill system that’s got these monsters walking the streets. And we’ve got to deal with the underlying causes and connections if we’re ever going to get to the truth in this country and stop this

            So what happened to this women is pretty much EXACTLY what he was demanding.

            1. You did not say ‘Wayne LaPierre’, you said ‘NRA types’, as if that is the norm for ‘NRA types’.

              I heard him say that I remember it well, it was very cringe worthy. But he does not speak for all NRA members, or even a majority of them.

              Why didn’t you just come right out and say that instead of trying to infer that this is a common view among NRA members?

            2. So what happened to this women is pretty much EXACTLY what he was demanding.

              He doesn’t seem to be talking about locking up people who make an offhand remark to a psychiatrist in a supposedly confidential session.

              And of course, the reason the NRA started blaming video games and mental illness was because you and your leftist pals were blaming teh evil guns at the time. I’d say the NRA played their cards masterfully in that mess.

              1. Where was I blaming guns?

      2. Also, I didn’t blame Obamacare, I said that Obamacare will be used for a back door, or changed to widen the policy. I blame corrupt control freaks.

      3. Let’s see.

        Wayne LaPierre: A guy, disapproved of by political elites, ranting on TV.

        Obamacare: An actual law, approved of by political elites.

        Which of these things is more likely to shape how government behaves? Three guesses, first two don’t count, you loathsome partisan toad.

      4. With all of this “institutionalize” talk, I’ve had Suicidal Tendencies’ Institutionalized stuck in my head all morning. Or Black Velvet Flag’s version if that’s more your speed.

  6. You know what would have been funny? If the cop had accidentally shot himself with the glock because he’s the only one trained enough to handle that firearm.

    1. KOP KILLER BULLETZ!!1

      1. Ahem. Home defense rounds.

        1. Stop being redundant.

  7. Not going to pretend this was an easy decision for the psychiatrist altough an alternative option to calling the stormtroopers would be preferable. The cops as always were the ones who took everything too far. Don’t know what it’s going to take for some accountability.

    1. The psych called the cops on her patient. She knew what she wanted to happen; she wanted the cops to kick in Ms. Sutterfield’s door and throw her in a cage. If you can find excuses for that, fine. I can’t.

      1. Either that or she is one incredibly bad shrink, not being able to figure out cop nature. Good grief, this shit is all over the intertoobs, could she really be that stupid, or just malicious, like you said.

      2. You can’t fathom a psychiatrist being told by a patient that they were going to blow their brains out and not just ignoring and going on with their day? I’m not saying that she handled that correctly or even well, but I’m not going to go out of my way to condemn her for it. This bs is all on the cops as far as I’m concerned.

        1. Not everyone reads hit&run;. Msm are all cop fellators.

        2. I am condemning her. I think I’m being misunderstood; the only reason the psychologist had to call the cops was to have this woman detained and possibly committed. She wanted this; maybe not specifically this chain of events, but she wanted the cops to kidnap this woman and take her property from her, which is what happened.

          1. Or did she want the cops to show up and counsel her patient for her?

            1. And after they “rescued” her…they stole her stuff.

        3. You do have a bit of a point. If someone makes a credible threat of suicide and you are in a position to stop them from doing it, the law may well hold you responsible. Suicide is a crime. If someone says they are going to kill someone else, you should probably do something, no?

          In this case, it seems like the psychiatrist might have overreacted a bit. And there should really be a better way to deal with it than this.

          Still, I don’t think this sort of thing should be legal at all. Suicide shouldn’t be against the law and the police shouldn’t be protecting anyone from themselves.

          1. You do have a bit of a point. If someone makes a credible threat of suicide and you are in a position to stop them from doing it, the law may well hold you responsible.

            Given that, as the woman’s psychologist, she has a duty of care, not doing anything could have been depraved indifference homicide if she actually had committed suicide.

            1. “Duty of care” is conceptually related to civil negligence torts, not crimes. Had the psychologist’s conduct fallen below that required by her professional duty of care she’d be subject to a malpractice lawsuit, not criminal charges for depraved indifference homicide.

              It’s usually better to say nothing and leave people guessing about how much of a dumbass you are, than to open your mouth and remove all doubt.

              1. It’s also conceptually related to criminal negligence, including criminally negligent homicide.

                1. …which is not the same as depraved indifference homicide. Thanks for playing.

                  It’s always adorable when random jagoffs who’ve never been closer to law school than driving past one try to play attorney on the Internet.

          2. If someone makes a credible threat of suicide and you are in a position to stop them from doing it, the law may well hold you responsible.

            Which law? I mean I’m sure some idiot prosecutor could drum up some charges, but we shouldn’t be pretending that’s the way it should be.

        4. You can’t fathom a psychiatrist being told by a patient that they were going to blow their brains out and not just ignoring and going on with their day?

          No, I expect her to do her fucking job and talk about any suicidal thoughts with the patient. You can bet this patient is NEVER going to trust a shrink again.

          I can’t believe that a shrink is allowed to report a patient’s suicidal thoughts to the cops. That’s a pretty basic violation of trust. It’s not like she was making threats against the shrink.

      3. Not to mention, the psychiatrist might as well be the state anyway. State-licensed, reports to the state? Close enough, shall we say, for government work.

        1. In theory the state requires the psychiatrist to respect doctor-patient privilege though.

          Ironically, if she’d confessed to raping and murdering a bunch of people the shrink would have been prohibited from calling the cops about it.

  8. Ignorance of the law is a great excuse.

    1. And a valid one if you’re the law-enforcer.

      1. Well, those tomato plants sure looked like dope to me. Shame we had to kill the guy, but all of our officers are safe at home tonight! And if we saved just one childin…

      2. Exactly, it’s not a valid excuse for the average citizen.

    2. Yep. The exclusionary rule only helps if you actually are guilty of a crime.

      If the purpose of the unreasonable search and seizure is misplaced benevolence or even pure harassment, there’s no way to discourage the cops from doing this unless you can incontrovertibly prove that they knew they were violating your rights. And then all you can get is maybe a heavily-taxed cash settlement after a few years of fighting and paying legal fees.

  9. This kind of shit scares the ever loving daylights out of me because once so labeled there’s absolutely no way to prove oneself not crazy. This is pure unadulterated gulag material here.

    1. Read my comment below. Is that scary enough? Because I am 100% certain that is where we are headed.

    2. What’s scare about WI law is that it hearkens back to Tennessee Williams’ time, where a jealous or impetuous family member can have you committed to keep you out of the inheritance.

      “My sister carries a gun, and she said she would kill herself!”

      1. Imagine what it will be like when doctors are turned into nothing but government cronies.

        Hey doc, nice practice you got there. Well, the government pay, it’s not so great. But every crazy you can certify for me, me and you we’ll do a little asset forfeiture biz and things will start looking up for you, doc!

  10. Right now, it’s starting to become a prevailing attitude in society to never call the cops. Before long, the same attitude will apply to visiting a doctor. That’s when they’ll pass another law or just amend Obamacare to make it mandatory to get 4 checkups a year and fill out your health questionnaire, whether you want to or not, for your own safety of course. Punishable by seizing of your assets and prison if you don’t comply.

    Unless the current march towards tyranny is turned back, this is absolutely going to happen.

    1. “it’s starting to become a prevailing attitude in society to never call the cops.”

      I don’t think that is true but it would be a good start.

      1. Let’s put it this way, it’s a HELL of a lot more common of an attitude than it was a few years ago. And it’s going to get more common as cops continue their jack booted thug type of behavior. More and more people are going to personally know someone who had a very bad experience with the cops.

        1. And the cops KNOW that. And they are doubling down, because “It’s US versus THEM” is becoming very real. They love when their behavior gets them attacked in the media, it re-enforces their bullshit.

    2. Just found out my state has expanded their vaccination tracking program from school age children to anyone receiving vaccinations from any provider.

      The printout shows the lists of vaccinations received, along with recommended list of more vaccinations and revaccination dates.

      How long before recommended becomes required?

  11. But the court concluded that they were protected by qualified immunity because it was reasonable for them to believe their actions were legal

    Mental deficiency is a valid defense. It’s a shame the police force is a welfare program for retards though.

  12. another officer worried that Sutterfield might be released from the hospital, come home, and then use the gun to kill herself

    And since she wasn’t committed or found incapable, she could have gone to any gun shop and bought another one. So did he seize her purse and her bank account too? Or how about the myriad other ways she could kill herself if she was serious?

    Fucking pigs.

    The cherry on top of all this is that mental health screening are complete and utter useless bullshit. Unless the person is ranting during, the hospital does a 24 hour (or 96 hour or 4 day) hold and releases them. Doesn’t matter what the person has been doing, their previous casework, or anything. And no follow up at all. It doesn’t catch serious suicidal people at all. It’s just a tool to give the appearance of doing something.

    1. So, just what do-gooders want?

    2. They probably drained her finances, to pay county officials to take photocopied pictures to all the drugstores and Wal-marts, with a “Do not sell this person guns/sleeping pills/knives/toasters and hairdryers/car exhaust extension hoses/claw hammers/etc… note attached, and administrative costs…

  13. You know nobody took glee in any of this (which I’m convinced is not the case in many of the nutpunch stories). The doctor I’m sure didn’t like doing it, but thought he might get in trouble for not calling the police. Likewise I’m sure the police didn’t like making this call & dragging this lady off & breaking in to her home & case & taking her gun. Just the working out of an unfortunate state of affairs that gets people in trouble for doing the right thing and leaves them out of trouble for doing the wrong thing. Sad.

  14. “Well, dis is a revoltin’ development!”
    — B. Bunny

    Yeah, I can’t possibly imagine this being misused.

    … Hobbit

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