Homeschoolers ramp up 4th Amendment battle

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

It's because the case brought by LuAnn, Joseph and Timothy Batt against police officer Joseph Buccilli, who forced his way into the family's 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 sometimes "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.'"

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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 organization said.

In the New York case, Buccilli, a police officer in Orchard City, barged into the family's 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 court's decision to award Buccilli immunity in the case be overturned, the officer admitted he knew nothing about any allegations of wrongdoing or any emergency and didn't know who asked for the "welfare check."

"I don't 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 don't need a search warrant. I don't 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 Batt's 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 argues he 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 out none 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 Puntoriero's daughter-in-law, who had been involved in disputes with the family over Fred's care and property, had called authorities with the complaint that two weeks earlier her husband had expressed concern over his father's welfare.

However, when Fred lived with 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."

HSLDA's Darren Jones, a litigation attorney, said the Fourth Amendment "doesn't 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 noted the 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 officer then said, "You should not pretend to know the law."

Mason argued 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.'"

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.'"