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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.
This shooting was immediately followed by a bunch of lies. Officer Belue first claimed Betton fired his gun at officers. The ensuing investigation showed Betton's weapon was never fired. Faced with this direct contradiction of his statement, Officer Belue revised his, claiming Betton pointed his gun at officers. According to Betton, he never got the chance to point a gun at anyone. The moment he appeared with his gun, officers opened fire.Officers also lied about their entrance to Betton's home. They claimed they knocked and announced their presence. Betton's surveillance camera told the real story. Nine seconds elapsed between the officers' arrival on Betton's lawn and their entrance into his house. None of the officers present appeared to announce anything before bashing down his door and swarming inside.
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.
Despite this -- and despite inverting the Castle Doctrine to say its the invaders of a home who need protection from the home's occupants -- Officer Belue still sought qualified immunity. The district court denied his request, pointing to the facts still in dispute, as well as the officer's actions.
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.
The Appeals Court sees no reason to upend this finding, especially when there's precedent on point saying actions like this clearly violate Constitutional rights.
[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.”
Officer Belue also argued Julian Betton was so inherently dangerous it didn't matter whether officers announced themselves or ordered him to put his weapon down before opening fire. This claim basically turns Betton's mere existence into an exigent circumstance where Constitutional rights no longer apply. The Appeals Court isn't interested in advancing this terrible legal theory.
[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.
Betton's case goes back to the district court and Officer Belue will have to face a jury if he doesn't attempt to settle this lawsuit first. Denying immunity preserves the rights of homeowners to defend themselves from unexpected intruders in their homes. Officer Belue's attempt to separate one action (his shooting of Julian Betton) from another of his actions (entering a home unannounced) is soundly rejected. Even when an officer subjectively "fears for his safety," context matters. If officers want to use the element of surprise to their advantage in no-knock raids, they can't turn around and claim residents have no right to react with alarm to armed intruders.

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posted at: 12:00am on 16-Nov-2019
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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.
In other words, it sounds like Greenberg is a friend of Richard's family, and much of the letter then does read as if he's referring to a naughty kid, not an actual lawyer with years of experience. So much of the letter is quite insane, but it seems to focus on how little experience Richard actually has, such that he might not know that lying to a judge and making up excuses is a bad idea.
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.
Right. I get that Liebowitz may not know all the nuances and ins and outs of litigation and such, but the whole paragraph makes it sound like he's a dumb child, rather than a 31-year-old man with a law degree, who has been practicing before the court in a huge number of cases. And this wasn't about some sort of sophisticated nuanced issue. This was about lying to a judge. No offense, but you don't have to have a law degree to know that's a bad idea and he does have a law degree.After first making it sound like Richard is a clueless, inexperienced idiot, he then immediately claims that Richard has a growing law firm, even employing experienced lawyers, and has filed approximately 2,000 cases. So, uh, which is it? Is he a clueless, inexperienced rube, or an experienced lawyer who employs other lawyers who actually know better?
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.
So... he does know other lawyers and has lots of experience. So, the whole "don't lie to a judge" thing is the sort of thing that maybe he should have known about? But then Greenberg reverts back to Liebowitz being an inexperienced newbie... while also insisting that he "fills a need" by filing bullshit lawsuits to shake down people for money.
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...
Greenberg later admits that he, himself, is not very experienced or knowledgeable regarding copyright law, so perhaps he doesn't know the nature of copyright trolling and the problems that trolls like Liebowitz create for tons of people. Perhaps he also doesn't know the details of how frequently Liebowitz has been called out or sanctioned by judges. But all of that seems to matter here, and chalking up his lying to a judge multiple times over many months to his "inexperience" seems... questionable at best.The letter is, at least, straightforward in admitting that Liebowitz lied to the judge, and tries to explain his possible reasons for lying, but they're not very good reasons. Hilariously, the letter says there are no excuses, but then tries to argue that Liebowitz's decision to lie is "understandable" even if (and I kid you not) he did it intentionally.
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.
And, apparently, the lawyer who has filed "approximately 2000 cases," many of them demanding insane sums of money from people over questionable claims of copyright infringement, is now claiming that the small amount the court has fined him is a "high price" to pay. Yeah right.
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.
The fact that Greenberg keeps trying to suggest this may have been a "lapse" is pretty ridiculous -- as his unwillingness to recognize the whole reason why the judge was so concerned with Liebowitz's claims in the first place: that this is not the first or second time that Liebowitz has been called out by courts for some fairly basic failures. Greenberg then notes that he's "recommended that Richard seek psychotherapy to understand and ameliorate the anxieties, tensions and infrequent lapses of Richard's demanding practice" as well as that he "enroll in a CLE course addressing small law firm management." He also recommends that Liebowitz find an experienced copyright lawyer to advise him.As noted, the letter is truly astounding in the way it talks about Liebowitz as if he's a small, clueless child, while at the same time trying to claim that he's an important lawyer with a huge and growing practice... but somehow too ignorant to recognize that lying to a judge at least ten times in court filings was a bad idea. As the judge noted at the hearing after this letter was sent:
[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.
I can recognize the tough position that Greenberg was put in, especially as it appears that this family friend was retained just days before the letter needed to be sent, but the entire premise of the letter is so ridiculous that it is difficult to believe there wasn't a better way to throw oneself on the mercy of the court.

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posted at: 12:00am on 16-Nov-2019
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