Even the bad guys have constitutional rights

The facts in this decision are sketchy, but it appears the plaintiff is an accused domestic violence offender who is suing the police for an unlawful search into his home, an unlawful arrest and the use of excessive force. The police are trying to get out of the case on qualified immunity grounds, but the Court of Appeals will not go there.

The case is Penree v. City of Utica, a summary order decided on May 30. Police officers are immune from any lawsuits that raise legal issues that are not clearly established, i.e., the case law is not clear on whether the police acted illegally. After he was accused of domestic violence, the police evidently entered plaintiff's house without a warrant. The police argue that the law was not clearly established on whether they needed a warrant to enter the home because, in 2009, the Second Circuit held in Okin v. Village of Cornwall, 577 F.3d 415 (2d Cir. 2009), that in certain instances, the police have an affirmative duty to intervene when faced with alleged domestic violence. That means, the police argue, that the law was not clear on whether the police needed a warrant to enter the man's home.

This is a creative argument, but the Court of Appeals (Kearse, Hall and Chin) does not see it. The accused domestic violence defendant still has rights under the Constitution, the Court says.

An affirmative duty on the part of officers to intervene when faced with alleged domestic violence does not conflict with the duty not to enter the attacker's home without a warrant. It is possible -- indeed, an officer is, absent exigent circumstances, required -- to secure the substantive due process rights of domestic violence victims through legal means such as obtaining consent or a warrant to enter a home. The law prohibiting warrantless entry into a home without exigent circumstances was and continues to be clearly established, and is not undercut by our decision in Okin. 

The police also say they had exigent circumstances in going after the plaintiff because when they entered the house without a warrant, he ran up the stairs, away from the police. That's not exigent circumstances. Plaintiff was not running down the street, after all. Unless plaintiff was able to grow wings and fly out the second-floor window, he would eventually be cornered upstairs and the police could place him under arrest.

It looks like the police tased plaintiff inside his own house. While "it is not excessive force to deploy tasers, after a warning, against arrestees who are dangerous or resisting arrest," the officers don't seem to have a defense here. The Court says: "There was no countervailing government interest at all. The officers were in Penree's home unlawfully, he was not fleeing or resisting, the officers purportedly arrested him for a noncriminal offense, they saw he was holding his small child, and they gave no warning"