The backstory, in itself, is one of those peculiar tales of the times, where certain words and phrases take on magical meaning untethered from whatever is really going on. It may be bad or it may not, but it’s hard to tell from the Second Circuit’s recitation of the facts in Torcivia v. Suffolk County.
Father, who had imbibed a few, and 17-year-old daughter were having a fight over her guinea pig at one in the morning. So she called the cops. There was no claim the the father hit her, but that he was being angry and saying mean things to her. So the cops came ready to take dad down. Was the daughter afraid of being harmed? Was the father a danger? Or was something else happening here, which the police called a “domestic dispute” because it was his daughter and in the home.
The facts are in significant dispute, about what happened when police arrived, but the cops eventually took dad for psych eval on the basis of his being suicidal, which he says he was not. He was cleared for release and that’s where the legal issue arises.
Since this was a “domestic dispute,” and they decided the father was suicidal, and dad had a gun safe in the house, a big red flag arose.
As the 2nd Circuit read the record, the Suffolk County Police Department had a policy of temporarily seizing guns from anyone who is involved in a domestic dispute and as a result is required to undergo a psychiatric evaluation. But in this case, Torcivia alleges, the police took his guns after he had been cleared for release. He says they repeatedly pressured him for the combination to his gun safe, which he ultimately divulged to his wife because he thought he otherwise would not be released from the hospital. Because Torcivia’s state pistol license was later revoked, he never got his handguns back, and his long guns were not returned until two years after the guinea-pig argument.
At this moment, many will shrug and say, “who cares,” since guns are bad and you refuse to feel badly about cops seizing guns from a father who fights with his daughter about a guinea pig. The potential wider abuse never enters into your calculus.
As the 2nd Circuit saw it, the policy itself, even though it entailed warrantless home invasions, was justified by “public safety issues at the intersection of mental health and domestic violence”—concerns that qualified as “special needs.” That exception, it explained, “applies when ‘special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.'”
The Supreme Court has already rejected the excuse of the “community caretaking” function as a justification to seize any guns lying around in Caniglia v. Strom. If you call it “special needs,” does the precedent evaporate? The Second Circuit thought so.
“Under the lower court’s logic,” the Institute for Justice notes, “the government can skip the warrant requirement so long as it (or even a court) conjures up a loose health or safety purpose for the intrusion. The result is that officers have a blank check to conduct discretionary, warrantless invasions in countless new contexts….What does the government do that cannot somehow be framed in terms of health or safety?…If a loose interest in ‘health or safety’ can authorize officers to enter and seize property within the home—without a warrant, exigent circumstances, or consent—then the Fourth Amendment ‘leave[s] the people’s homes secure only in the discretion of police officers.'”
Certain phrases, like “domestic dispute,” have taken on magical meaning of dread and awe, justifying in the minds of many ignoring constitutional niceties like the Fourth Amendment because it’s “domestic” and what sort of evil hater wouldn’t get it? Add guns into the mix and an extralegal explosion is almost inevitable, even if, as here, guns played no role whatsoever in the underlying conduct and, had the cops not gone on to search the house for kicks and find a gun safe (which presumably, contained guns under lock). But it’s domestic. And it’s guns. So it’s “special” and they obviously “need” to do something when it’s special, thus making it a “special need.”
As IJ noted, there was ample time for the police to seek a warrant to seize Torciva’s guns if a judge approved. But after the psych at the hospital cleared him for release because he was not suicidal, any possibility of a claim in a warrant app that his suicidal ideation justified seizure of his guns disappeared, making the likelihood of even the most warrant-loving judge signing off questionable. So what other solution was there than just do it and let the Second Circuit make up a new excuse for this flagrant violation of the Fourth Amendment.
And the circuit did not fail the cops.
The Institute for Justice is seeking cert to the Supreme Court, lest there be a new “special needs” exception to the warrant requirement. And remember, if it’s good for guns, it’s similarly good for evidence of any other offense when a daughter, perhaps with special needs of her own, calls the cops because she’s fighting with dad over her guinea pig.
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