U.S. Court Will Not Block Lawsuit Over Connecticut SWAT Raid
BY Herschel Smith
10 years, 3 months ago
A U.S. federal appeals court has ruled that Connecticut police cannot claim immunity to quash lawsuits seeking millions of dollars in damages from a botched 2008 raid by a SWAT team that severely injured a homeowner and killed his friend.
The decision by the U.S. 2nd Court of Appeals in New York clears the way for a judge to decide whether five suburban Connecticut police departments violated the constitutional rights of homeowner Ronald Terebesi by using excessive force.
On May 18, 2008, a heavily armed SWAT – or special weapons and tactics – team unit knocked down Terebesi’s door, threw stun flash grenades into his Easton home and fatally shot 33-year-old Gonzalo Guizan of Norfolk as the two men watched television.
Guizan, who was visiting the home, died after being shot a half dozen times.
“The court ruling here is going to be relied upon in other courts throughout the country,” Gary Mastronardi, a Bridgeport attorney who represents Terebesi, said on Tuesday. “They set up the parameters that define the extent to which qualified immunity can be asserted by police in SWAT cases.”
In a 51-page ruling that upholds a lower court decision, the appeals court said the police responded with unnecessary and inappropriate force and under the circumstances, are not protected by “qualified immunity” from the lawsuits.
Good. Like I’ve said before. If you are the police and you want to come into my home, call and make an appointment. Otherwise, you may get shot.
This is the way it should be. Engineers don’t get immunity when bridges collapse or systems malfunction, and doctors don’t get immunity when they leave surgical instruments inside of your body.
I hate incompetence. I truly do. And the incompetence in many SWAT teams we see today (piss poor rules for the use of force, no trigger discipline, no muzzle discipline, wrong addresses, etc.) is compounded by the indifference of police to the rights of citizens, as if no one has the latitude to press the issue of safety except law enforcement (for their own safety rather than yours).
One can only hope this ruling is used as precedent across America. Now, if we could only get what reader Ned Weatherby calls Herschel’s law passed across these United States?
On August 28, 2014 at 8:17 am, Blake said:
When I wrote my local sheriff and city councilman, questioning their use of SWAT, I pointed out that once cops lose their qualified immunity, it will become extremely expensive to defend against lawsuits. (When talking to such people I always try to point out where policy and self-interest intersect)
The article will be forwarded to the powers that be as a warning.
On August 28, 2014 at 9:11 am, pjb1 said:
It won’t do diddly until these bastards are held personally liable for costs. Just making the taxpayers cough up will just be raping us again.
The ruling class is attempting to “reduce us under absolute despotism”. Every SWAT raid is a declaration of war on us.
On August 28, 2014 at 12:30 pm, Dennis said:
Absolutely!
On August 29, 2014 at 4:09 pm, Bill Daigle said:
well said
On August 28, 2014 at 9:38 am, Ned Weatherby said:
Now that SWAT in some jurisdictions considers itself to be a private entity, perhaps they don’t have qualified immunity. Discovery should uncover the threads regarding that position in that department.
If the only tool is a hammer, every problem looks like a nail.
On August 28, 2014 at 9:40 am, Josh said:
This is a very, very good first step. I understand that police need qualified immunity for their day-to-day. Otherwise the courts and officers would he absolutely overwhelmed by lawsuits.
But their should be an established threshold, which is what has been ruled on here. I think the threshold should be lower, but this is good nonetheless.
As a second step, settlements need to stop coming from the tax payers. We’re paying the officers a salary and then paying for their mistakes. Settlements should be taken from pensions across the board.
Finally, and I’ll say it for the umpteenth time: third-party, live streaming cameras on all cops now. There is no excuse. Penalties for tempering with or disabling these cameras and any other citizen camera they encounter should be swift and harsh.
On August 28, 2014 at 1:00 pm, Dennis said:
Unless they kill you… Hard to collect when you are 6 Ft under slim. Who gives a rat’s back side when you’re on a slab.
The British Soldiers did not have qualified immunity when they fired upon a group of people in the Boston Massacre. They were on trial for their lives.
“Citizens may resist unlawful arrest to the point of taking an arresting officer’s life if necessary.” Plummer v. State, 136 Ind. 306. This premise was upheld by the Supreme Court of the United States in the case: John Bad Elk v. U.S., 177 U.S. 529. The Court stated: “Where the officer is killed in the course of the disorder which naturally accompanies an attempted arrest that is resisted, the law looks with very different eyes upon the transaction, when the officer had the right to make the arrest, from what it does if the officer had no right. What may be murder in the first case might be nothing more than manslaughter in the other, or the facts might show that no offense had been committed.”
“An illegal arrest is an assault and battery. The person so attempted to be restrained of his liberty has the same right to use force in defending himself as he would in repelling any other assault and battery.” (State v. Robinson, 145 ME. 77, 72 ATL. 260).
“Each person has the right to resist an unlawful arrest. In such a case, the person attempting the arrest stands in the position of a wrongdoer and may be resisted by the use of force, as in self- defense.” (State v. Mobley, 240 N.C. 476, 83 S.E. 2d 100).
“One may come to the aid of another being unlawfully arrested, just as he may where one is being assaulted, molested, raped or kidnapped. Thus it is not an offense to liberate one from the unlawful custody of an officer, even though he may have submitted to such custody, without resistance.” (Adams v. State, 121 Ga. 16, 48 S.E. 910).
Finally the reason for these rulings are stated by Story in his Treatise on the Constitution:
“Story affirmed the right of self-defense by persons held illegally. In his own writings, he had admitted that ‘a situation could arise in which the checks-and-balances principle ceased to work and the various branches of government concurred in a gross usurpation.’ There would be no usual remedy by changing the law or passing an amendment to the Constitution, should the oppressed party be a minority. Story concluded, ‘If there be any remedy at all … it is a remedy never provided for by human institutions.’ That was the ‘ultimate right of all human beings in extreme cases to resist oppression, and to apply force against ruinous injustice.’” (From Mutiny on the Amistad by Howard Jones, Oxford University Press, 1987, an account of the reading of the decision in the case by Justice Joseph Story of the Supreme Court.
If these cases were Constitutional Amendment and why have we come to this place? Where is the Amendment authorizing the departure from the principles of these rulings?? Why are we killed with impunity??
So how have we been dospossed of this right and demeaned to be beaten to death, shot and hung in jail cells, Judicial and Legislative tyranny! There is no constitutional amendment changing those rights to defend our lives and bodies from unlawful assualt. We have been dispossessed by an encroaching elitist mind set. We have no right to resist their agents. If we do they may kill us with impunity for daring to say no. This is the reality we live in. At any given moment you may be in the wrong place at precisely the right time to have some slavering badge wearing monster decide you did not jump high enough or quick enough when he gave you an order, unlawful or not. WHo ever said that we have to roll over on our backs with our bellies exposed in public humiliation? Hell even a soldier has the right to refuce an unlawful order under the UCMJ, Uniform Code of Military Justice.
You are going to have to free that impass in your mind friend. It does you no justice.
On August 28, 2014 at 2:50 pm, Josh said:
With whom are you having a discussion? It cannot possibly be me, as I haven’t presented anything that can be construed as an “impass” [sic] in my mind.
Perhaps if you’re going to write meandering, 1000 word editorials as comments, you should just get your own blog.
Also, it’s hanged, not hung. Pictures are hung. People are hanged.
On August 28, 2014 at 3:13 pm, Dennis said:
I observed the “impass” as sedately complying with the mind training the successive assualts aginst our Fundamental Rights have accomplished.
To quote Madison:
“I believe there are more instances of the abridgement of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpations.”
This was the point of my “editorial”. I tried to correctly represent the image that Madison does in a few short words. Alas, I am not such a thinker or writer, my appologies. My poor attempt included not just a few words but examples that everyone would be sure to understand. It seems that I failed in that as well.
On August 29, 2014 at 12:04 am, Dana King said:
You damn skippy! Somewhere along the line of history the reason the US Constitution was created was lost. No longer was the govt there to preserve liberty, it changed into a monster that unconstitutionally seized the liberty of the individual slowly but surely until you were nothing but a peon who could be stopped at whim for no reason at all, maybe the cop didn’t like the way you looked or maybe he had a bad day?
Glad to see others still around who believe that the preservation of LIBERTY was, and is, the foundational principle of this country. It’s long past time for the people to take back what was taken from them. It’s a shame statists have got this far in corrupting this country, but it isn’t all their fault, the people got complacent and distracted by shiny things and became woefully and pathetically ignorant of history. Pisses me off just writing that last sentence, LOL.
On August 29, 2014 at 11:06 am, Dennis said:
:) I was not sure anyone caught that, glad to see that IQs are not lost.
I sometimes go a bit over the top with explaination. I sometimes think that if I explain it enough it will sink in… maybe not.
Also I like to show people that we don’t need a bunch of Socialist educated serious non producers telling us what plain English means. The Constitution explains it self. The basic premise is that if it is nnot expressly written then it is not something government was delegated to do. We have become Political Welfare recipiants. We can no longer govern our government because we have given them extra constitutional authority by not keeping them on a short leash. They now think they can rule us like subjects and not citizens. The People are the principal and the government the agents and it was designed to be that way. Some of these politicians have become ravenous monsters, power hungry and they don’t want to be what they signed on to be.
Read Hamilton’s comments in federalist Paper 84. Take you time and make sure you readt it more than once. It si 18th century English so it a bit wordy. You can find the Federalist online in PDF form. Make a hard copy and make notes on it as you read it. Then prepare to get pissed. THe Federalist has been used 291 times by the Supreme Court as an interpretive guide for the Constitution. It has been used over 1500 times by lower courts. It is the intent. As Scalia said there is intent, no such thing as living Constitution. The phrase was coined by Oliver Wendall Holmes. It really means that the principles of the Constitution are timeless.
On August 28, 2014 at 12:12 pm, Dennis said:
Hoka Hey! This is the Lokota war cry.
The only immunity stated in the Constitution is for legislators, for minor infringements and civil process on their way, during and from session. “Nevertheless they may be arrested for Treason, Felony and Breach of the Peace”… US Constition.
After the Boston Massacre John Adams defended the british Soldiers who fired upon the people who confronted and assulted the Soldiers. In his statement to the jury he said, “I know that you have the power to decide law and fact”…
This is two parts:
1.) Even the British Army could be charged with murder at the Common Law,
2.) The jury had the right and power to decide law and fact.
Peruse the Declaration and Resolve, circa 1774:
http://www.ushistory.org/declaration/related/decres.htm
A brief statement says that “we are entitled to the Common Law at all times”… In another area it says that the English Government has “expanded the Laws of Admiralty beyound its ancient limits, even into the jurisdiction of a county”… All commercial law was part of Admiralty Law since Britian was an Island everyhing was caried by ship. This is how the Admiralty Law was developed. This is historical fact. So the Colonists were complaining about using the commercial law to deprive us of our Common Law rights. This has been going on since at least FDR’s terms in office and somewhat before. It is the commercial law that governs corporate towns and cities, driver’s license, birth certificates, all titles in deeds and land conveyances and just about everything we are left in awe of buy the encroaching government acting outside of the few and defined delegated authorities (Madison Federalist 45) stated in the Constitutions, both Federal and State. By twisting the meaning of the commerce clause the legislature’s authority to “regulate commerce” and anything so connected circumvents the Common Law. History has come full circle and the elite are demanding we recognize their right to legislate for us in all matters whatsoever.
The supposed codification of the law by the elite law keepers ABA and legislators alike have strpped us of our Common Law Rights. We have been like sheep sheared due to our lack of knowledge concerning the matter. Herein lies the rub…
Any change in the process that takes away any due process and right must be replaced or the result is a violation of the Constitution. The Constitution may not be changed by mere legislation or judicial ruling.
So here is the way the coniving varmints have rationalized their take over of the People and their Constitution and seized more authority than they were delegated. Sound complicated… well if you want to cheat someone out of a thing best confuse them about their right to it. It takes a bit to unravel the knot but seeing how they have effected the rational part of the mind to impliment their tyranny is the first step. After we see fully the twisted convoluted method and recognize it as such we may then employ the reasoning of Alexander the Great. When persented with the mystery of the Gordion, Alexander simply took out his sword and cut through the damned thing.
Our sword is the Constitution. If a law or practice does not conform to the Constitution or a properly ratified Amendment, it ain’t so. Regardless of all the rationalizations thrown at it the Costitution is the Supreme Law of the Land by which all others are measured. Stop letting these snakes whisper in your ear. They are snakes, they have proven themselves so and they will bite you. It is their nature.
I leave you with Lincolns words:
“The People-the people are the rightful masters of the legislature and the courts. Not to overhrow the Constitution but those men who pervert it.”
We don’t overthrow the government when we kick out those who pervert it. We simply get rid if the tyrants… it is their, it is their duty”…, Declaration of Independance. If you don’t study the documents, history and deliberations of the Framers, your mind will be enslaved by the rationalizations of those disposed to usurp and want to enslave. Free your mind… your ass will follow :)
God Bless
On August 28, 2014 at 12:26 pm, Dennis said:
http://www.ushistory.org/declaration/related/decres.htm
On August 29, 2014 at 11:05 am, Billy Mullins said:
LEOs should be held to a HIGHER standard than ordinary citizens. They should not lawfully be able to use deadly force in any situation where an ordinary citizen could not lawfully do so. In ANY incident involving deadly force, what, for an ordinary citizen, would be a standard defense (i.e. requiring the prosecution to negate it beyond a reasonable doubt) should, for any LEO acting in an official capacity, be an AFFIRMATIVE defense (i.e. requiring the DEFENSE to PROVE by a preponderance of evidence).
But we need to go farther. We need to be able to hold Judges and prosecutors civilly liable for failure to live up to their duty to protect the public. There are entirely too many plea bargains being maid allowing dangerous criminals to roam the streets; free to prey upon innocent members of society. How often do criminals get off on a plea bargain and then injure someone else? If a person who is free because of receiving probation or a much lighter sentence due to a plea bargain commits a crime during the time he would have been incarcerated had he been tried and found guilty in a trial, then the Judge and Prosecutor in the case should be liable to being sued for negligence and/or dereliction of duty. If the prosecutor had done their job and gone to trial or if the Judge had refused to accept the deal, the defendant could very well have been convicted and, if nothing else, been out of circulation and unable to harm anyone but another incarceree.
On August 29, 2014 at 11:33 am, Ned Weatherby said:
I case anyone’s interested, here’s the Herschel’s Law post:
How many incidents have we all heard about where police beat or shoot someone and collect all the cellphones of everyone they can see? I’m all for Herschel’s proposal.
But another thing I’d like to see, that I raised amongst some folks last century, (back when I worked in the legal profession) is a law that permits any attorney (i.e., an officer of the court) to bring evidence before a grand jury on behalf of an injured party, when there is evidence of a crime committed by federal, state, or local actors.
Ever wonder why so few LEO’s – even if caught on tape – ever gets prosecuted for criminal acts? It’s because it’s a conflict of interest. For example, the government is the “client” of a US
Attorney, or any DOJ lawyer. They won’t prosecute a government actor when they will have to defend a civil suit regarding the same actions.
In my version, after the “civilian” attorney presents evidence, If a true bill is returned, the same lawyer – or one of the injured party’s choosing – prosecutes the case, and gets paid the
same amount that a local AG or AUSA gets paid – from government funds.
For example, if someone submits evidence of criminal acts committed by a fed to the FBI or local US Attorney, the US Attorney won’t prosecute. Why? Because he represents the state. If he prosecutes a federal agent, he will have to defend any civil action regarding torts committed by the same federal actor.
It’s a conflict of interest. The local AG won’t prosecute local police for a crime when it opens the
door for a lawsuit that said AG will have to defend.
I once even worked on language for a proposal. Couldn’t get a single lawyer I knew or worked with – even so-called “patriot” attorneys – interested.
Most people can’t afford to sue the state, local or feds. Thus, even if their lawsuit survives the first round, they’re broke.
Guess what folks – it’s hard to prevail in court over the biggest law firm in the world – the U.S. Department of Justice. You’ll have about as much luck with the state.
Justice is an old joke – it JUST IS. Where do I sign up for “Herschel’s Law?” Has a nice ring, eh?
On August 29, 2014 at 6:44 pm, Dennis said:
Common Law Tort… In the Colonies you could sue a prosecutor for damages at the Common Law if he did not bring the charge in good faith. One of the causes in the Declarations and Resolve that was complained of. Also it said that “We are entitled to the COmmon Law at all times”. These asses are like kids caught with their hand in the cookie jar. All they do is deny.
Some with the cops. The British Soldiers in the Boston Massacre were on trial for murder. If you could hold the Kings soldiers for a crime why can’t we hold police for a crime.
In the Common Law an attorney could present a Grand Jury with a bill and if the Grand Returned a True Bill the prosecution could go forward by that attorney acting as a presecutor.
However, people may represent themselves Pro se. The court has to bend the rules and it only costs you filing fees. Of course you have to be good and well versed in the law. You also have to instruct the jury as you go. It is an uphill battle. I have actually done this. I have a bachelor’s degree in law, not enough to “practice”aw or represent another. I was fortunate to have clerked for a judge while going to school. I was the clerk who reviewed all the Pre se pleadings. So I learned a lot. It is doable but it is scary as hell.
On August 29, 2014 at 8:21 pm, John Smith said:
Don’t forget that judges are govt. employees too and despite their alleged judicial independence, they know who pays the bills and whose a$$ they must kiss to rise in position if they have further ambitions. Not only is the US Injustice Dept. the world’s largest law firm, their expenses are paid by you whether they’re working for or against you.