Appeals Court Denies Qualified Immunity To Cop Who Argued Citizens Have No Right To Defend Themselves Against Armed Intruders

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The Fourth Circuit Court of Appeals has denied immunity to a cop involved in a no-knock raid that left the raided house's resident, Julian Betton, paralyzed. This case was touched on briefly in a previous post discussing legal arguments made by law enforcement officers that attempt to portray people in their own homes as dangerous aggressors when police crash through their doors unannounced.In this case, South Carolina police officer David Belue's legal rep tried to tell the court Betton's response to a bunch of heavily-armed men rushing through his door -- grabbing a gun and moving into the hallway from the bathroom -- created a situation where Betton deserved every bullet fired at him by officers. In other words, if Betton didn't want to get shot, he shouldn't have been in his own house when it was invaded by officers who never informed him they were police officers.Here's a recap of the events leading to the lawsuit, from the Fourth Circuit's decision [PDF]:

In the afternoon of April 16, 2015, a team of plain-clothed law enforcement officers armed with “assault style rifles” used a battering ram to enter Julian Ray Betton’s dwelling to execute a warrant authorizing a search for marijuana and other illegal substances. The officers did not identify themselves as “police” or otherwise announce their presence before employing the battering ram. From the rear of his home, Betton heard a commotion but did not hear any verbal commands. Responding to the tumult, Betton pulled a gun from his waistband and held it down at his hip.Three officers, including Myrtle Beach, South Carolina police officer David Belue, fired a total of 29 shots at Betton, striking him nine times. Betton suffered permanent paralysis resulting from his gunshot wounds.

Officer Belue also initially had asserted that the agents had knocked on Betton’s door and announced their presence, and had waited before forcibly entering the home. However, footage from the video cameras on Betton’s front porch showed that the officers had not knocked on the door or announced their presence, and had not waited any length of time before using the battering ram to gain entry.To the contrary, the video recordings showed that the officers ran up the front steps and immediately began using the battering ram. Moreover, Garcia confirmed that the officers did not announce that they were law enforcement personnel before entering the home. The record before us also contains a statement from a former DEU agent, who related that the DEU agents “almost always forcibly entered [residences] without knocking and announcing” their presence.

Regarding Betton’s unlawful entry claim, the magistrate judge found that the officers had not knocked or announced their presence before entering, and that there were no exigent circumstances warranting abandonment of the “knock and announce” procedure. The district court adopted the magistrate judge’s recommendation to deny qualified immunity on the unlawful entry claim, and Officer Belue has not challenged this ruling in the present appeal.With respect to Betton’s excessive force claim, the magistrate judge found that there were material facts in dispute regarding whether Betton had pointed a gun at the officers before Officer Belue fired his weapon. Thus, the magistrate judge concluded that a jury could find that Betton did not pose an immediate deadly threat to Officer Belue or others justifying the use of deadly force.

[A]s of 2015, the law in this Circuit was clearly established that a person is entitled to be free from excessive force when the person “is on his property or in his residence, is in possession of a gun that he is not pointing at police officers, and is not given a warning or command to drop the gun before he is shot.”

[N]o information in Betton’s criminal history suggested that he was inherently violent to a degree that the officers would have been justified in storming into his home unannounced and in firing their weapons at him when he did not present a current threat. Notably, the search warrant was based on Betton’s conduct of selling small amounts of marijuana on two occasions. And, although the informant observed security cameras and two firearms in Betton’s home, there was no evidence indicating that Betton had engaged in threatening or violent conduct toward the confidential informant.

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Richard Liebowtiz's Lawyer To Judge: Please Excuse His Lying To The Court Since He Doesn't Really Know How To Law

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Earlier this week we already covered infamous and oft-sanctioned copyright troll lawyer, Richard Liebowitz, showing up in court to explain to the judge why he lied about the timing of the death of his grandfather multiple times over the course of many months as he tried to explain away why he missed a discovery conference. As we noted, Liebowitz actually showed up in court this time (good call, considering that the judge made it clear she was considering sending him to jail), and brought a lawyer with him (also a good call). He did remain out of jail, though Judge Cathy Seibel noted that she had referred the matter to the Grievance Committee, which could lead to sanctions. She also warned that her various contempt rulings against Liebowitz will require him to disclose the sanctions both to other courts and to prospective clients.At the hearing, it was mentioned that Liebowitz's newly found lawyers, had sent a letter to the judge, but that letter was not public yet. Late yesterday, the letter was finally added to the docket and I don't think I've ever seen anything quite like it. You can pretty much tell that the lawyer writing the letter, Richard Greenberg, admits, that he has just been brought into this shit show of a situation, and has decided the best strategy is to throw himself on the mercy of the court. And, apparently, Greenberg decided the best way to do this is to treat Liebowtiz as if he's a little kid who just didn't know any better that lying to a judge is a bad idea. It honestly does read like the kind of note a parent would write for a kid, so I have to admit that this little tidbit at the end of the letter puts much of the rest of it in context:

Counsel has known Richard and his family for years, even as long ago as Richard's Bar Mitzvah, and will always be available to render advice and guidance to Richard, and counsel will advise Richard to make use of this resource more often.

Richard's Background. Richard is an unmarried 31-year-old who resides with his parents in Hewlett, New York. He graduated with a BA degree in communications from the University of Pennsylvania in 2010, and with a J.D. degree from Hofstra University Law School in 2014. In 2015 he was admitted by the Second Department to the Bar of the State of New York, and in the same year he opened the Liebowitz Law Firm, located at 11 Sunrise Plaza, Valley Stream, New York, where he has practiced continuously ever since. Richard has had no other employment, experience or supervision as a lawyer.

Since its opening, Richard's law practice has grown exponentially, filing approximately 2000 law suits under the federal copyright statute in the four years of his firm's existence. Moreover, because of his burgeoning practice, Richard's firm has grown commensurately; he now employs a staff of 12, two of whom are lawyers, including an associate with large commercial firm experience.

In short, while Richard is short on legal experience and training, he obviously fills a need in the ranks of freelance photographers who struggle to make ends meet financially...

There can be no excuse for Richard's lapse, whether he stated and maintained the erroneous date of death mistakenly or intentionally. Either would be understandable. For example, Richard may genuinely have misremembered the date of death, and continued to adhere to the April 12 date or, having taken the position that the date of death was April 12, he saw no reason to question his memory or why it should matter. On the other hand, Richard may have thought the Court would not understand his dysfunctional, grieving state originating three days before the conference, and decided to fix the date of death as the morning of the conference. If the latter explanation is the correct one, Richard not only misjudged the Court's knowledge, experience and decency, no doubt as an inexperienced young lawyer might, but he engaged inexcusable falsity, however immaterial.

Of course, either way, Richard has paid a high price for his failure of memory or falsity concerning the true date his grandfather died. The incidence has been a financial disaster. Richard will have paid to the Clerk of the Court $3700 in financial penalties for his alleged contempt; he has paid adversary counsel for his adversary's wasted time at the conference which Richard failed to attend; and Richard has paid thousands of dollars in attorneys fees for counsel's representation in this contempt matter. Nor is financial loss the only adverse consequence. Richard has suffered horrible publicity as a result of being held in contempt and threatened with incarceration by this Court. And of course Richard, a young and inexperienced lawyer, is scared of the damage to his professional career as a result of his conduct in these proceedings. At the risk of appearing to minimize the seriousness of this matter, which counsel would not dare to do, counsel urges this Court to find that Richard has suffered or been penalized enough for his lapse or misconduct.

[Judge Cathy] Seibel stated that Liebowitz knew he was lying about the date of his grandfather's death, but chose to repeat that lie six, eight, ten times in court filings that the jurist said were part of a long-term campaign of deception. Liebowitz, Seibel remarked, double-downed, triple-downed, quadrupled-downed, octupled-down, I don't know what would come after that.I question Mr. Liebowitz's fitness to practice, Seibel said at one point during the hearing.

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