Cop May Have Lied to Raid House Full of Guns

(CN) - The 7th Circuit denied immunity to a police officer facing claims that he lied to get a no-knock search warrant for a home with a dozen guns, and then shot an inhabitant.

Fifteen Milwaukee SWAT officers stormed the home of Richard and Sharon Betker on the evening of Aug. 4, 2006, acting on a tip from Sharon's estranged sister indicating that Sharon was a felon in possession of a firearm.

Thinking his home was being invaded, Richard Betker brandished one of his own firearms through the doorway and was immediately shot in the hand and shoulder.

Officers then secured the couple and recovered a dozen guns in the home. Though Richard was arrested for reckless endangerment, he was never charged with a crime and authorities eventually returned the confiscated weapons.

Sharon Betker's sister, Debbie Capol, reported the couple to Officer Rodrigo Gomez days earlier, telling him that Sharon was a convicted felon, and that her brother-in-law own numerous firearms. Capol says today that she also emphasized that she had not personally seen the guns because she had not been in the Betker home for five years.

Officer Gomez conducted a preliminary investigation by confirming the Betkers' ownership of the home, doing a brief drive-by and doing a criminal background check on Sharon Betker. He confirmed that Sharon had been convicted of credit card fraud in 1982 - a felony at the time - but never spoke to the Betkers directly.

Gomez also did not corroborate the sister's accusations, though he did speak to her again. She allegedly reiterated her story, adding that Richard Betker had been arrested for killing a coyote and that the couple had a home "full of guns."

Gomez confirmed that Betker had killed a coyote - a ticket in Milwaukee - but also confirmed that the man had obtained a valid hunting license four of the previous five years.

In his affidavit for a no-knock warrant, Gomez testified that he "knows through personal involvement in this investigation and through reports and documents ... that a convicted felon named Sharon Marie Betker (Capol), white female ... is reported to be in possession of at least 1 handgun, a dark colored semi-automatic handgun, at her residence. ... A known citizen witness, who wishes to remain anonymous, stated that within the last 5 days, the informant has observed Betker in possession or control of at least one handgun, at the above-described address. In addition, the informant stated that Betker and her husband Richard Betker (w/m ... ) possess numerous hunting rifles and that they both engage in illegal hunting and the informant has seen stuffed animals like eagles, which are a protected species, in the residence." (Parentheses and ellipses in original.)

Gomez's affidavit also stated that he "checked with the Wisconsin Department of Natural Resources and confirmed that Richard Betker at the above address obtained a Resident Gun Deer License in 2001 and a Small Game License in 2003, thus corroborating the information related to firearms at the residence."

"The witness gave a detailed description of the address that affiant later corroborated in person," the affidavit continued. "In addition, affiant went to the location and observed a female matching the informant's description of Betker at the residence. (The informant describes Betker as a white female 5'6"-5'7", 250lbs)."

Gomez continued: "The confidential informant states that he/she is familiar with weapons and the affiant confirmed through interrogation of the informant that the informant had a sound understanding of firearms, and knows the difference between semi-automatic weapons, revolvers, rifles, shotguns, and non-firearm weapons such as compressed air guns. Affiant knows through an NCIC check ... that Betker is a convicted felon."

A commissioner granted the no-knock warrant. Hours before the raid, Gomez contacted Capol to ask if she wanted to change her previous statements.

Richard Betker came out of the raid with severe injuries, though he never fired his weapon. In a federal civil rights complaint against Milwaukee, the officers involved in the raid and the city's police chief. Betker claimed that the warrant was obtained without probable cause.

A federal judge granted summary judgment in favor of all defendants except Gomez. That court questioned whether Gomez obtained the search warrant by making false or misleading statements intentionally or with reckless regard for the truth.

The 7th Circuit affirmed.

"Viewing the facts in the light most favorable to Betker, as we must, we agree that a reasonable jury could find that Officer Gomez knowingly or with reckless disregard for the truth made false statements in his affidavit, without which probable cause for the no-knock warrant would not have existed," Judge Ann Williams wrote for the court. "Three (of the many) disputed facts are particularly persuasive."

Gomez claimed that Capol told him she had personally seen Sharon handling a gun in the Betker household days before her tip. But Capol said otherwise in sworn deposition testimony.

This testimony also contradicts Gomez's claims that she told him both Betkers possess numerous guns and are avid hunters. The testimony also discounted Gomez's claims that Capol "knows guns."

"Although Officer Gomez claims that [the sister] told him that Sharon kept a 'dark colored semi-automatic pistol' near her bed, Capol testified during her deposition that she was unsure of 'what kind of gun[s]' were in the Betkers' home and recounted that when Officer Gomez had asked her about particular types of guns she was confused because she is 'not a gun person,'" Williams wrote.

"A reasonable jury could find that Officer Gomez knowingly made false statements in his affidavit about that as well," she added.

Gomez's affidavit also contained a struck-out line about "guns and drugs" that might have implied that Sharon Belker illegally possessed firearms and engaged in drug distribution.

"Regardless, a reasonable jury might find that by including the unaltered sentence in paragraph 6 - which might be technically true - Officer Gomez knowingly or 'with reckless disregard for the truth' intimated that Sharon (and Richard) 'engaged in ongoing criminal enterprises,' without any reasonable basis for believing that to be the case. This is especially true in light of [Gomez's] intimation that a no-knock warrant was necessary because the person illegally possessing the firearm, Sharon, was a person 'involved in criminal activity,'" Williams wrote. (Parentheses in original.)

"Eliminating the disputed statements would strip Officer Gomez's affidavit of details essential to a finding of probable cause," she added. "The 'hypothetical' affidavit would effectually allege that Sharon is a convicted felon and that an unidentified informant reported that Sharon's husband, Richard, likes to hunt and has been licensed to hunt in the past."

The sisters' strained relationship and five-year separation should have raised red flags for Gomez..

"This was all of the information Officer Gomez had to believe that Sharon illegally possessed a firearm, and none of it was corroborated," Williams wrote. "Statements that are both unreliable and uncorroborated do not support probable cause."

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Cop May Have Lied to Raid House Full of Guns

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