Police, The Fourth Amendment, Qualified Immunity

Milwaukee Officer Rodolfo Gomez allegedly lies to get no knock; trouble ensues

with one comment

Case: BETKER v. GOMEZ, No. 11-3009 (Seventh Circuit, September 5, 2012)

What happened:

At 10:00 p.m. on August 4, 2006, roughly fifteen officers from the Milwaukee Police Department’s Tactical Enforcement Unit (TEU) executed a no-knock search warrant on the home of Richard and Sharon Betker on a tip from Sharon’s estranged sister indicating that Sharon was a felon in possession of a firearm. Upon arrival, officers smashed the home’s front window as a “distraction.” They activated their red and blue police lights and beamed a powerful, blinding spotlight through the broken window and into the home.

Sharon and Richard Betker, comfortably asleep in bed, were suddenly awakened by the violent crash of shattered glass and became disoriented by the loud, screaming voices and the bright, flashing lights. Unable to comprehend the commands being shouted by TEU officers, Richard instinctively thought that his home had been invaded. He grabbed one of his firearms, crouched behind a wall next to the couple’s bedroom doorway, and shouted, “Who are you? What do you want? Who are you, who the f__ are you!” Receiving no response, and feeling that his and his wife’s safety were at risk, Richard extended his arm into the doorway and brandished his weapon to show the apparent intruders that he was armed and ready to defend his domain.

Seeing Richard’s outstretched arm holding a weapon, TEU Officer Allen Groszczyk immediately fired. His first shot penetrated the door and bedroom wall, hitting Richard in his hand. Groszczyk’s other shots traveled the same path and struck Richard’s shoulder. With Richard down, officers swarmed the room and detained both him and his wife. Although Officer Groszczyk claims to have yelled “search warrant—police!” before firing, Richard denies hearing or comprehending any verbal notifications or instructions.

With Richard and Sharon securely in custody, the TEU officers began a search of the residence. Officer Rodolfo Gomez was one of the officers who searched the home. He discovered and seized live ammunition and a number of weapons, including five rifles, four shotguns, and a revolver. Other TEU officers found another handgun located between the headboard and mattress of the couple’s bed and one more by Richard’s bedside table. Richard was arrested for recklessly endangering the safety of others in violation of Wisconsin Statute § 941.30. However, he was never charged. And all of the weapons seized that night have since been returned.

Decision: No qi for Officer Gomez because it looks like he may have lied to get this no knock warrant.

Comment: No excessive force claim?

Written by Burgers Allday

September 7, 2012 at 4:14 pm

Posted in Uncategorized

One Response

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  1. Burgers wrote:

    No excessive force claim?

    Hard to tell since that’s not the issue on appeal, but from the facts recited in the decision I can see how a violation of 4th Amendment right would be a stronger claim. According to that, Betker did brandish a gun. I think he was thoroughly justified to do so, but that’s not what’s at issue in the appellate case.

    The most fascinating thing the case reveals is the mental state of a person who will take second level hearsay report of a non-event to support probable cause, ie:

    Capol reported that Richard and Sharon maintained a home “full of guns.” She reached this conclusion based on her pre-2001 visits and information she received from her boyfriend, Dennis Hamburg—who had been told by another friend, William Acker, that the Betkers recently had a “rummage sale” during which they did not sell any firearms (the implication being that the Betkers had guns in the past and did not sell any, so they must still have them). Neither Capol nor Dennis attended the rummage sale. And Officer Gomez did not attempt to contact Acker to obtain more information about what he did or did not see while at the Betker’s home.

    Capol was correct, Mr. Betker did have a home “full of guns”, perfectly legal guns. Gomez tried to get his warrant based on spinning that second level hearsay report of a non-event into evidence to support some vague “facts” that unspecified crimes had been committed with those guns.

    Kids usually learn by first grade in school not to try things like “Waaa! John says that Tim told him that Joe said he was gonna beat me up me. I know it’s true because Joe didn’t pick me for his baseball team last week at recess.”

    Maybe some adult once told Gomez to “get a life” and he’s been trying to get even ever since.

    En Passant

    September 8, 2012 at 10:04 am

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