Police win appeal over armed search
November 28, 2006
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 Aspen Times, Aspen, Colo.