What is Reasonable for Police?

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					COURT REPORTER                                                                                                                1. 800. 973.1177




What is Reasonable for Police?
[by James Kilpatrick]
Of the making of Fourth Amendment cases, to paraphrase the Preacher, there shall be no end. In support of that truism, consider the case of Dr. Michael
Baldwin of Loomis, Calif. He is suing the county cops for abusing their powers. Four months ago he won a round in the 9th Circuit. Now the cops have
asked the Supreme Court to hear their appeal.




The case began in July 998, when the sheriff       47 marijuana plants. Baldwin’s subsequent          The high court voted 8- to reverse. Gore’s
of Placer County received a tip that Baldwin,       trial for possession ended limply with the jury     presence created a significant exigency. Katz
a dentist, might be growing marijuana in his        hung 7-2 for conviction. Charges against him        had not been seriously injured, if indeed he
home. The town of Loomis (pop. 6,32) is may-       are not likely to be revived. In 200 the case      had been injured at all. More to the point: “The
be 20 miles northeast of Sacramento. The mill       devolved into a civil suit by the dentist and       question is what the officer reasonably under-
wheels of the law began their slow rotation.        Ms. Chacko against Placer County and the            stood his powers to be, when he acted, under
                                                    implicated officers. Last April a panel of the      clearly established standards.” Saucier had
On Sept. 6, a sheriff’s posse led by deputy        9th U.S. Circuit ruled firmly against the cops.     substantial grounds for believing that he had
Jeffrey Potter searched the outside garbage         They had violated the couple’s civil rights by      justification under the law for acting as he did.
at the dentist’s home. Regrettably, Potter          relying upon a false affidavit. Their claim to
then swore that they had found “marijuana           qualified immunity “was rightly denied.” From       Justice Anthony Kennedy had a few caveats.
leaves and stems recently cut from a mature         that order the county and the officers seek         The excessiveness of an officer’s conduct
marijuana plant.” Moreover, “the marijuana          Supreme Court review.                               must be judged by objective standards of rea-
was fresh green and still moist.” This was not                                                          sonableness. The border between excessive
so. (The posse had found only .08 grams of          In the 9th Circuit, Judge John T. Noonan            and acceptable force is “sometimes hazy.”
dried and partly burned marijuana leaves and        treated the county’s case roughly: Baldwin          It is sometimes difficult for an officer, in the
stems.)                                             was a practicing dentist. Nothing in the record     heat of a moment, to determine “how the
                                                    indicates that the officers had reason to           doctrine of excessive force applies to a factual
Other items in the trash aroused the depu-          believe he would resist or flee. The officers       situation.” Police should be granted immunity
ties’ legitimate suspicions. A week later they      had stated no belief that the plaintiffs would      for “reasonable mistakes.”
obtained a warrant. In the early dawn, to           be armed. A reasonable officer should have
quote Dr. Baldwin’s subsequent deposition,          known that Potter’s treatment of Baldwin’s          On that early morning in California, did the
five officers burst “paramilitary style” into       wife was excessive. The malfeasant officer          cops act reasonably? Doubtful, I would say,
his home. Officer Mark Reed pointed a gun at        had “concocted a story and fed it to a magis-       highly doubtful.
the doctor and ordered him to lie down. Reed        trate.”
“then pushed his gun at the rear of (Baldwin’s)                                                         (Letters to Mr. Kilpatrick should be sent by
head.”                                              If the Supreme Court takes the county’s ap-         e-mail to kilpatjj@aol.com.)
                                                    peal, we will hear a good deal about a relevant
Baldwin’s then-wife, Georgia Chacko, was            incident in 994 in San Francisco. The historic     COPYRIGHT 2005 UNIVERSAL PRESS SYNDI-
awakened by the noise. She was clothed only         Presidio army base was being converted from         CATE
in a T-shirt and cotton briefs. She opened          a hospital to a municipal park. The hospital        This feature may not be reproduced or dis-
her bedroom door. A man poked his fingers           somehow was identified with medical experi-         tributed electronically, in print or otherwise
sharply into her throat and ordered her to get      ments on animals. Vice President Al Gore was        without the written permission of uclick and
on the floor. The intruder pointed a gun at         the ceremonial speaker. Elliot Katz, president      Universal Press Syndicate.
her and held it briefly against her head. Then,     of In Defense of Animals, attempted to display
according to her deposition, the unidentified       a large banner in protest of vivisection. The
gunman kneed her in the small of her back           MPs hauled him off. He sued Officer Donald
and handcuffed her. The gunman was Potter.          Saucier and others for police brutality and
To shorten the story: The deputies seized           won on a procedural motion.




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Description: The making of Fourth Amendment cases, to paraphrase the Preacher. A dentist might be growing marijuana in his home.
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