Glenwood police win appeal over armed search of home | PostIndependent.com
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Glenwood police win appeal over armed search of home

GLENWOOD SPRINGS, Colo. A federal appeals court has ruled that Glenwood Springs police acted reasonably in conducting an armed search of a home in 2002.The 10th Circuit Court of Appeals, based in Denver, overturned a federal district court’s ruling that two Glenwood officers weren’t immune from being sued over the search. The court ordered the district court to issue a summary judgment in favor of police. Last week’s ruling comes in a lawsuit brought by Mark and Shelley Fishbein and other parties over the search, which the Fishbeins say terrorized their children and another youth who were inside the home.The Fishbeins can appeal the ruling to the U.S. Supreme Court. Their attorney, Ted Hess of Glenwood Springs, did not return a call for comment Tuesday.The district court previously had dismissed the remaining complaints in the case in a summary judgment.The Fishbeins argue that the search was unconstitutional. The defendants, including the city of Glenwood Springs and police, contended the officers’ actions were necessary to protect their safety, and that they are protected by qualified immunity from lawsuits.Police Chief Terry Wilson, a defendant in the case, said the Nov. 22 decision by a panel of three appeals court judges shows that the officers acted legally, and with professionalism and integrity.”Sometimes our judicial system and form of government can seem kind of long and drawn out in terms of making important decisions, but it’s encouraging to see that the right decision was made,” he said.The case arises out of an Aug. 15, 2002, search of the home the Fishbeins were then living in on Ninth Street. Officers Brian Keiter and Matthew Hagberry 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.Police found the Fishbeins in their car across the street from their home. With their weapons drawn, the officers ordered the Fishbeins to get on the ground and arrested them. Officers then entered the home, though it wasn’t connected to the 911 call, the Fishbeins contend.Prosecutors later dropped charges against Mark Fishbein after Shearer stopped cooperating as a witness and another witness came forward in Fishbein’s defense. Shelley Fishbein, who was arrested on suspicion of being an accessory to the crime, was never formally charged.The Fishbeins say that in conducting the search of the home, the officers pointed their guns at two teenagers – one of them the Fishbeins’ son – unnecessarily frightening them.Police say Keiter and Hagberry were conducting what is called a protective sweep – a warrantless search carried out for officer safety, if officers have reasonable suspicion that armed and dangerous people may be present.Such searches may not be carried out “simply as a matter of course,” the appeals court panel wrote. Still, it said, “We conclude that the defendant police officers had reasonable grounds to believe there was an immediate threat to their safety.”The Fishbeins questioned whether the search was conducted simply for safety reasons, but the court noted that officers didn’t seize evidence or make any arrests while in the house.The judges decided that officers were justifiably fearful because they had previous information that firearms were in the home, and knew at least one teenaged son was inside who might be armed and might be “upset or alarmed or otherwise hostile to officers following his parents’ dramatic arrest on the front lawn.”Also at issue was whether the search lasted too long to constitute a protective sweep. The court noted that it was thought to have gone on for five minutes at the most, and said officers spent time searching “the cluttered interior of the Fishbein home” and removing two teenagers.”We do not think five minutes is a self-evidently excessive time for police to conduct a limited protective sweep to ensure that there are no armed and dangerous persons lurking on the premises,” the court panel wrote.The Fishbeins’ teenage son and a friend were playing computer games at the time of the search, and reportedly feared they were going to be killed by officers.Another of the Fishbeins’ children, who was 8 at the time, also was in the home during the search. In a written statement to the Post Independent in October, Mark Fishbein said that child has suffered nightmares since the incident and must sleep with the lights on.Fishbein wrote that police also were defending the search based on case law involving children with violent histories who posed a potential threat.”In this case the children were known by officers to be well-behaved children, students and human beings yet they assert that these children could become dangerous simply because they say so, with no supporting fact otherwise prior to, at the time, and since that time,” Fishbein wrote.Contact Dennis Webb: 384-9119dwebb@postindependent.comPost Independent, Glenwood Springs Colorado CO


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