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12/17/2012 5:10:41 PM
Jim Mason--HSLDA
Warrant? I Don't Need no Stinking Warrant!

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From the HSLDA E-lert Service...
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Warrant? I Don't Need no Stinking Warrant!

Dear HSLDA Members and Friends:

What would you do if a police officer came to the door of your home
and demanded to be allowed inside? Would you ask to see a warrant? Or
would you simply stand aside?

This was the situation that 23-year-old Joseph Batt faced on Tuesday,
April 17, 2012. At the time, Joe lived at home with his parents, Tim
and LuAnn, and younger siblings in Orchard Park, New York.
A few months earlier, the Batts had taken in LuAnn's father, Fred, who
had dementia and other chronic illnesses. On April 16, LuAnn had had a
discussion with a relative about some of Fred's personal possessions.

On Tuesday afternoon, Joe's mom was at a doctor's appointment and his
dad was on his way home from work, leaving Joe to tend to Grandpa
Fred. When Joe saw two police cars parked in front of his house, he
did not feel alarm, only curiosity about why they were there.
He approached the two officers, who were casually chatting outside
their cars, and asked if there was a problem.

Lieutenant Joseph Buccilli demanded that Joe produce his driver's
license, which Joe had left in the house. The officer then demanded to
know his full name and date of birth.
After answering the question, Joe again asked why the officers were at
his home. Buccilli said they were there to perform a "welfare check"
on behalf of adult protective services. He then demanded to be allowed
inside.

"You do not have permission to come in"

The Batts have been members of Home School Legal Defense Association
since Joe was a child, so he grew up reading about his Fourth
Amendment rights in The Home School Court Report. Furthermore, Joe's
older brother, Dan, is a federal law-enforcement agent, a profession
which the Batt family holds in high regard.

Joe respectfully refused Officer Buccilli's demand to enter the home.
He told the officer that his grandfather had just been seen by a
nurse's aide who reported that all was well.

Lt. Buccilli angrily told Joe that he didn't need a warrant to conduct
a welfare check. He said he would enter without permission and arrest
Joe if he obstructed him in any way.

When Joe stepped inside to call his older brother on his cell phone,
Lt. Buccilli followed him. "Please don't come in," said Joe. "I am
making a private call. You do not have permission to come in."

But the officer stuck his foot into the doorway and prevented Joe from
closing it. He then pushed the door open and stepped inside.

Inside the home, one of Joe's younger siblings finally reached Dan on
the home phone and handed the receiver to Lt. Buccilli.

Lt. Buccilli announced over the phone that he didn't need a warrant
and hung up, saying that Joe didn't know the law and that Buccilli had
a right to come in without a warrant.

"You should not pretend to know the law!"

The officer pushed past Joe and went into the next room to see Fred.
He lectured poor Fred--who had been visibly upset by the
commotion--about how he had the right to forcibly enter a home when
checking on the welfare of an adult.

As Lt. Buccilli finally left, he told Joe that he would "inform adult
protective services about [your] lack of cooperation." His parting
shot was, "You should not pretend to know the law."

In the meantime, Tim and LuAnn Batt heard about what was happening and
hurried home. By the time LuAnn arrived, there were three policemen
standing outside her home, including the police chief.
The police were soon joined by an adult protective services social
worker who said she had received a report of an adult in need of
services.

LuAnn invited her inside, and explained that her father was in hospice
care and was seen regularly by a nurse, social worker, and nurse's
aide.

The social worker saw that LuAnn's father was fine. She left in a few
minutes, telling LuAnn that she was doing a good job. Fred has since
passed away while in the comfort of his family's home.

What's really going on here?

I teach my children to be respectful toward and thankful for police
officers and others in government service--those whose job is to keep
the peace and serve the public. In fact, before I became a lawyer, I
served in law enforcement for many years. In that time, I personally
conducted just about every kind of search known to man.

So what was really going on in Orchard Park on April 17, 2012? We
don't know everything for sure, but here is what we surmise:

First, adult protective services received a vague, anonymous report
about Fred's care.
Second, the social worker called the police and asked them to meet her
at the home. In our experience, investigative social workers, whether
for children or adults, frequently call the police to accompany them
to ensure "cooperation" when they arrive.

Third, the police officers arrived first and were chatting with each
other while waiting for the social worker. We suspect that they did
not know the precise nature of the report--only that one had been
made.
Fourth, when he was approached by a young man asking why they were at
his house, Lt. Buccilli decided to not wait for the social worker.

Here is what we do know: the Fourth Amendment does not permit the
police to enter anyone's home without a warrant unless there is a real
emergency--even if it's called a "welfare check."

A civil rights lawsuit

After much prayer and thought, the Batts decided to sue Lt. Buccilli
for violating their Fourth Amendment "right . . . to be secure in
their house."

They did not make that decision lightly, since they deeply respect law
enforcement personnel in a real and personal sense. But they also hold
the rule of law in high regard. They understand that police must
respect citizens' rights, and that when they don't, they should be
held to account.

The family hopes that their experience will result in good legal
precedent, so that others will not be mistreated in the same way.

On December 11, 2012, HSLDA filed a civil rights suit against Lt.
Buccilli in federal court. You may read the complaint here.
http://www.hslda.org/elink.asp?id=16628

The battle for the front door

This case presents a new twist on an old story. In the early days of
the homeschool movement, homeschooling was (wrongly) assumed to be
illegal in many states. Homeschooling as an educational option was not
as well-known as it is now, and far fewer children were being
homeschooled back then.

Too often, early homeschoolers found an investigative social worker at
their front door, often accompanied by uniformed police officers.
These authorities were typically investigating anonymous tips that
didn't have much to do with homeschooling itself--often something like
this: "The children are always home, they don't go to school, and the
family seems really religious."

Homeschoolers soon learned that front-door encounters with an
investigative social worker could be traumatic for both parents and
children alike. Protecting our member families from such unwarranted
investigations was what drew HSLDA into what we call "the battle for
the front door"--defending Fourth Amendment rights.

Now, as many homeschooling families are beginning to care for aging
relatives, we are seeing new challenges in the battle for the front
door.

HSLDA has long believed that it is important to dispel the notion
among police and other authorities that all Fourth Amendment bets are
off when they demand to enter a home to conduct a "welfare check."

Read about our other precedent-setting cases in which courageous
homeschooling families changed the law and practices around the
country, including the Calabretta case
http://www.hslda.org/elink.asp?id=16629 , the Stumbo case
http://www.hslda.org/elink.asp?id=16630 , and the Gauthier case
http://www.hslda.org/elink.asp?id=16631 . And please pray for the
success of our appeal in the Loudermilk case
http://www.hslda.org/elink.asp?id=16632 , which we expect will be
decided in summer 2013.

To all of our members whose dues support our mission to defend the
rights of homes and families, thank you! If you are not already a
member, please consider joining HSLDA to stand with the Batt family
for freedom. http://www.hslda.org/elink.asp?id=16633

If you are considering end-of-the year giving, please consider
donating to the Homeschool Freedom Fund. Your tax-deductible donation
will be used specifically to fund HSLDA's freedom-advancing cases such
as this one. http://www.hslda.org/elink.asp?id=16634

Our homeschooling freedom depends on our remaining a free people,
secure in our own homes.
Blessings and Merry Christmas to you and yours,

James R. Mason, III
HSLDA Director of Litigation

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-> Who's knocking on your door?

When a social service worker arrives at your door, tension can run
high. Wouldn't it be nice to get your lawyer on the phone,
providing you with immediate step-by-step guidance?

More reasons to join HSLDA...
http://www.hslda.org/elink.asp?id=1099

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