Federal appeals court to consider lawsuit against police department | PostIndependent.com

Federal appeals court to consider lawsuit against police department

A federal appeals court on Thursday will take up the case of a lawsuit accusing the Glenwood Springs Police Department of conducting an unconstitutional search of a home.The U.S. Court of Appeals for the 10th Circuit is scheduled to hear oral arguments in Mark and Shelly Fishbein’s lawsuit Thursday morning in Denver.The department appealed after losing in U.S. District Court. The Fishbeins’ attorney, Ted Hess of Glenwood Springs, said in a news release that the department maintains the two officers involved in the warrantless entrance into the Fishbeins’ home are immune from being sued.Bernard Woessner, the Denver attorney representing the department, could not be reached for comment Monday.The 2003 lawsuit stems from an incident the previous year in which officers Brian Keiter and Matthew Hagberry entered a home the Fishbeins then lived in on Ninth Street and pointed their guns at two teenagers – one of them the Fishbeins’ son.The officers had gone to the home after a report that Mark Fishbein had pointed a gun at Glenwood resident Jesse Shearer near the Grand Avenue bridge.Before entering the home, Police found the Fishbeins in their car across the street from their home and arrested them.Police then went into the home, though doing so wasn’t connected to the 911 call, Hess contends. He maintains that the entry violated the Fourth Amendment prohibition against unconstitutional search and seizure.Prosecutors later dropped charges against Mark Fishbein after Shearer stopped cooperating as a witness and another witness came forward in Fishbein’s defense. Shelly Fishbein, who was arrested on suspicion of being an accessory to the crime, was never formally charged.Hess says the appeal in the case turns on a “protective sweep” exception to the constitutional requirement that police obtain a warrant before entering a home. It allows police to conduct such a sweep for officer safety if they have a reasonable suspicion that armed and dangerous persons may be present.However, Hess argues that with the Fishbeins already under arrest, police had no reason to enter the home.Contact Dennis Webb: 945-8515, ext. 516dwebb@postindependent.com

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