Homeschoolers ramp up 4th Amendment battle – WND.com

The Home School Legal Defense Association, the nations premiere advocate for homeschooling, is representing a family in its suit against a police officers unauthorized entry into a private home, even though the case has nothing to do with homeschooling.

Its because the case brought by LuAnn, Joseph and Timothy Batt against police officer Joseph Buccilli, who forced his way into the familys home without either a warrant or an emergency reason, illustrates the battle for the front door.

The family is appealing to the the 2nd U.S. Circuit Court of Appeals, arguing the Fourth Amendment protects them from unreasonable searches.

The amendment states: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The case is relevant to homeschoolers, HSDLA explains, because early homeschoolers sometimesfound an investigative social worker at their front door, often accompanied by uniformed police officers.

These authorities were typically investigating anonymous tips that didnt have much to do with homeschooling itself often something like this: The children are always home, they dont go to school, and the family seems really religious.'

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HSLDA said 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, the organizationsaid.

In the New York case, Buccilli, a police officerin Orchard City, barged into the familys home without a warrant after being told he had no permission to enter.

He claimed social services had asked him to do a welfare check at the home.

According to an HSLDA brief to the 2nd Circuit, which asks that the lower courts decision to award Buccilli immunity in the case be overturned, the officeradmitted he knew nothing about any allegations of wrongdoingor any emergencyand didnt know who asked for the welfare check.

I dont know the basis of the allegations or what the welfare concerns are, he told the family. We do have a right to come in here when an allegation is made.

I dont need a search warrant. I dont need to ask permission, he continued.

And, multiple times, he threatened anyone who obstructed him with arrest.

He ended up talking to a senior citizen, LuAnn Batts father, Fred Puntoriero, who was well-dressed and well-groomed and was being cared for by a nurse, and left. Social services closed down its investigation almost immediately.

But the lawsuit against the officer argueshe did exactly what the Constitution, affirmed by the U.S. Supreme Court, forbids.

Entries without a warrant are allowed for several reasons: when an officer is in hot pursuit of a suspect, when evidence is in imminent danger of being destroyed or someone is in need of emergency aid.

The brief points outnone of those circumstances existed for Buccilli.

Pointedly, the brief states, In 2004, the Supreme Court said no reasonable officer could claim to be unaware of the basic rule, well established by our cases, that absent consent or exigency, a warrantless search of the home is presumptively unconstitutional.

It turns out, the brief explains, that Puntorieros daughter-in-law, who had been involved in disputes with the family over Freds care and property, had called authorities with the complaint that two weeks earlier her husband had expressed concern over his fathers welfare.

However, when Fred livedwith her and her husband, he was diagnosed with failure to thrive.

She told adult protective services that her husband had said two weeks earlier that Fred was lethargic when he visited.

APS admitted such reports from an underlying family dispute often are false, but the officer charged into the home anyway.

On April 17, 2012, Lt. Buccilli forcibly entered the Batts home, without consent or a warrant, to conduct a welfare check. On that day, federal law prohibited police from forcibly entering a home without consent or a warrant for any reason whatsoever, unless the circumstances fell within one of the established narrowly-drawn exigency exceptions, the brief explains.

The circumstances Lt. Buccilli confronted presented no exigency whatsoever.

HSLDAs Darren Jones, a litigation attorney, said theFourth Amendment doesnt have an exception based on a welfare check.'

Before police can come into a home, they must have either a warrant or some clearly defined exception, like an emergency or a hot pursuit of a suspect, he explained.

HSLDA Senior Counsel James R. Mason previously notedthe Batts were members of HSLDA since their son was a child.

He grew up reading about his Fourth Amendment rights in The Home School Court Report.

Mason pointed out Buccilli even threatened the family with informing adult protect services about [your] lack of cooperation.

The officerthen said, You should not pretend to know the law.

Mason argued the Fourth Amendment does not permit the police to enter anyones home without a warrant unless there is a real emergency even if its called a welfare check.'

The report said 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.'