A panel of the Eleventh Circuit Court of Appeals ruled to uphold a finding that the entire Circuit declined to review en banc just last week. In question was whether a law enforcement officer could be sued by the survivors of the shooting death of Andrew Scott. Officer Richard Sylvester shot Scott and has never faced prosecution. 
Scott was playing video games with his girlfriend in his apartment past midnight when four police officers arrived at his front door. The officers did not have a search warrant and did not turn on their emergency flashers. Nor did they have a valid search warrant or identify themselves as police. In addition, the officers had misunderstood a neighbor’s directions and thus arrived at the wrong home. In addition, by the admission of the police, Scott was armed but retreating when he opened the door at the command of the officers.
There are conflicting stories as to the position of Scott’s gun. The girlfriend said Scott had his weapon pointed downward, while the cops said the gun was pointed at Officer Richard Sylvester. Scott’s girlfriend and parents had not filed a criminal case against Sylvester, but had filed a civil case asking for damages for the violation of the deceased’s civil rights. However, the court ruled that they have no right to damages, having ruled that the officer had “qualified immunity” because he had not violated any of Scott’s “clearly established” legal rights.
Judge Frank M. Hull wrote that Sylvester’s behavior qualifies as an application of the-knock and-talk rule. This means law enforcement officers may enter a private property and knock on a door for “legitimate police purposes.”  The judge found that the officer had utilized a type of knock- and-talk tactic, while Scott could have declined to open his door. By shooting Scott once Scott opened the door, Hull found, did not violate any “clearly established … constitutional rights.”
Writing a dissent, Judge Beverly Martin found, “Under no standard was it reasonable for the police to kill Mr. Scott when he answered the knock at the door to his home. He was not suspected of any crime (much less a violent crime) and he was standing inside his own house without threatening them.” She wrote that the police had not used a permissible knock-and-talk tactic when Scott was shot to death: “there was no talk here. This was a knock and shoot.” For Martin, the police had violated Scott’s right to Fourth Amendment protection when they used excessive force and conducted a warrantless raid.
Mark Joseph Stern of Slate wrote of the court’s finding: 
“The 11th Circuit has now effectively found an individual’s Fourth Amendment rights are diminished whenever he chooses to exercise his Second Amendment right to possess a firearm. Unfortunately, the 4th Circuit reached the same conclusion in a dreadful ruling handed down in January. The Supreme Court should step in soon to remedy the contradiction by clarifying that the exercise of one constitutional right cannot diminish the protection of another. This is an area where liberals and conservatives should be in agreement.”



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Spero News editor Martin Barillas is a former US diplomat, who also worked as a democracy advocate and election observer in Latin America. His first novel 'Shaken Earth', is available at Amazon.

The views and opinions expressed herein are those of the author only, not of Spero News.

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