What Powers Are Granted by a Lay Affidavit

[jd585]

Hi,

Live in GA and am doing some research on the powers granted to law enforcement by a probate court judge when the judge issues a signed "Lay Affidavit".

Do you know what specific powers are granted, is it identical to an arrest warrant? ie; enter private property, trespass, remove someone against their will, deny civil rights, etc

Thanks very much for your insights!

[cdwjava]

It appears to be an order of temporary guardianship over someone that is mentally ill. It is not the same as an arrest warrant, but it does seem to grant law enforcement the authority to take the person in for an evaluation. While I am not familiar with the laws of GA in this regard, I imagine that if the police could articulate good cause to believe the person subject to the order is in their residence and the order grants them permission to seize and place him, then they can make entry. If the person is in a third party residence, there may be other issues.

Who are you in this scenario?

[jd585]

As I stated I am doing the research. It is for a friend and his wife who have a child that does have some mental problems, but the child has been stable for a very long time.

the short version

Dekalb County DHR used a lay affidavit to have the child removed & taken to crisis center where the medical staff found nothing wrong. The father tried to see the paperwork, but police refused...father tried to stop police by telling them they were trespassing prior to removing child and asking them to leave...for this he was threatened by one policeman with being shot

sounded to me like fathers rights were violated, but I'm not a lawyer...that is why I am asking for hopefully specifics as to what police can and can not do with a lay affidavit

[free9man]

Is the child an adult? If so, the father has no standing to demand to see the paperwork or interfere with an officer executing his duties.

If the officer did, in fact, threaten to shoot him (there's more to that story I imagine) then he can file a formal complaint with the officer's department. If he's looking for money, it will be a long, hard fight.

[jd585]

Is the child an adult? If so, the father has no standing to demand to see the paperwork or interfere with an officer executing his duties.

If the officer did, in fact, threaten to shoot him (there's more to that story I imagine) then he can file a formal complaint with the officer's department. If he's looking for money, it will be a long, hard fight.

thanks for the reply, i really appreciate it. i find law a fascinating subject.

yes, it is an adult child which the parents have guardianship of. i have known the family for many years and they do not have a history of deception, half truths or lies. they were never made aware of the lay affidavit or allowed to see it until after the police had their child in a cruiser and the police were ready to leave

i am a little confused by your answer, please pardon my ignorance of legal matters but that is why i am asking here

i gather from your answer that when (not if) police come onto private property they are not required to disclose any reasons for being there nor are they required to produce any legal paperwork granting them that right. and you as the property owner are not allowed to demand proof. if your answer were correct, does that not violate the family's constitutional 4th amendment rights?

if it does violate their constitutional 4th amendment rights, then the moment the police officer threatened to shoot the father for demanding to see legal authorization, was the police officer the same as any armed thug doing a home invasion / kidnapping?

then if that is true, is the police officer and the government guilty or just the police officer for failing to comply with the constitution 4th amendment?

[free9man]

If the officers were unaware that the parent had guardianship, then they have no duty to show the parent the paperwork. It is between them and the person they are there to take into custody. Just curious, did they force entry to the premises or were they allowed in by someone?

Absent a no-knock warrant they are required to explain what they are doing...to the person they are taking into custody. The only thing they have to tell anyone else present is that they have a court order to take that person into custody. If they were there to serve a search warrant, they would have to show that to the property owner. Since a person cannot be property, and they were there to seize a person, they don't have to show the property owner anything. Should they do any damage then they would need to make that right but that's it. The property owner, as long as their property was not damaged, doesn't have a dog in the fight as the saying goes.

The 4th amendment protects against unlawful search and seizure. IF the officer pointed his weapon at the father without justification (It's highly unusual for an officer to draw their weapon, much less point it at a person, without some kind of threat.), then that could be construed as a seizure and the father would be able to take action. In order to go after the entire dept., he would have to show that their training procedures were grossly negligent or that they were aware the officer was a loose cannon with a problem. Most likely it would only be the officer. Either the officer has a problem, is poorly trained how to handle situations, or he felt that was a proper response to the situation.

Now, your friend was demanding to see the paperwork. As far as the officer knew the father had NO right to see the paperwork and declined to show it to him, and I'm not sure whether the father having guardianship would automatically grant him that right anyway. If the father kept harassing, and if he was demanding to see something he wasn't entitled to see and had probably been told that multiple times he was past harassing, the officer while he was trying to carry out his duties, the officer could have taken additional action against him but only to effect an arrest for obstruction.

It is a duly authorized peace officer executing a duly authorized court order who may have training issues on dealing with tense situations. That is neither home invasion nor kidnapping. So no, its not an armed thug doing a home invasion/kidnapping. It sounds to me like the father made a bad situation worse than it should have been. The courts are the place to fight these kinds of things, not while an officer is trying to do their job. Not knowing all the facts, and neither of us do, that's about all I got.

It is easier to explain things to onlookers once you have a person in custody. Bothering them while they are doing their job makes everything harder.

[cdwjava]

yes, it is an adult child which the parents have guardianship of. i have known the family for many years and they do not have a history of deception, half truths or lies. they were never made aware of the lay affidavit or allowed to see it until after the police had their child in a cruiser and the police were ready to leave

Not uncommon. The police are generally NOT going to engage people in banter and discussion until they have the subject of their presence secured - whether it be a person or an area they intend to search. To do otherwise is unsafe for all involved.

And unlike TV they are generally under no legal obligation to hand the resident a warrant or any written authorization immediately at the scene. It is rare that they will have a copy of an arrest warrant or other order of seizure in hand, though most states require a copy of a search warrant to be left at the scene or with a responsible party prior to departure.

i gather from your answer that when (not if) police come onto private property they are not required to disclose any reasons for being there nor are they required to produce any legal paperwork granting them that right.

That right must exist, but they are under no obligation to stop what they are doing to present it. They can if they choose to, but are generally not required to do so.

and you as the property owner are not allowed to demand proof. if your answer were correct, does that not violate the family's constitutional 4th amendment rights?

The residence can demand or ask for anything they want ... the police just do not have to comply at that moment. I think you can see how it might be seriously unsafe for the officers to stop what they are doing to pause and argue about a warrant or other court order while the person they want arms or barricades himself in the back.

As for pointing a gun at the father, IF that happened, then the officer will have to articulate why he felt that was necessary. I suspect that it was for more than just asking the officers to stop.

[jd585]

THANK YOU (Free9Man & CDWjava) both for your replies. I really appreciate it. As I stated I find the subject of law very interesting.

I have read the 4th amendment since your postings several times with commentary by several law professors and opinions of a couple supremes. I find it extremely hard to believe that any court or police force for that matter would grant so much discretion to police officers.

IF the lower courts & police forces do routinely grant police that much discretion then that would explain many things that result from abuse of power;

More Importantly, we the people need to reign in those powers as the abuse will only get worse especially as they are trained by "homeland security" for other things.

I have a relative that is a 50 year police force veteran and in all that time he never pulled or discharged his weapon while walking his beat. The only time he discharged it was at mandatory proficiency certification.

Yes, he had to arrest people many times, but even those he arrested respected him and are friends even today as he went by the law and showed writs first. So his record begs the questions, since he was able to do his job "Why Do Other Police Officers Need To pull a weapon or discharge it"? "Does this behavior of police promote more violence?"

Unfortunately I've digressed from my original question and am still searching for the answer...What Powers Are Granted by a Lay Affidavit

[cdwjava]

I have read the 4th amendment since your postings several times with commentary by several law professors and opinions of a couple supremes. I find it extremely hard to believe that any court or police force for that matter would grant so much discretion to police officers.

Just what level of discretion are you talking about?

Law enforcement is granted a HUGE amount of leeway in taking actions for their own safety, that is quite clear. What might be less clear is whether the police can FORCE entry on this lay affidavit ... we do not have such a thing here, specifically, but if we have a signed order from a judge orderin us to enter and seize a subject then it is what it is - a court order.

More Importantly, we the people need to reign in those powers as the abuse will only get worse especially as they are trained by "homeland security" for other things.

Whatever you think you have heard about Homeland Security being involved at te local level, it's not true. At least not so far as they deal with local crimes and civil commitments. Any HS training tends to involve terror related issues, WMD training, etc. NOT state crime and mental health matters.

I have a relative that is a 50 year police force veteran and in all that time he never pulled or discharged his weapon while walking his beat. The only time he discharged it was at mandatory proficiency certification.

Good for him. Though, a 50 year veteran? And he never drew his weapon on duty?? That's hard to believe. Really hard to believe. But, be that as it is, I am glad there are places cops can work where that is not always necessary. Though I seriously doubt that he conducted hot stops, building searches, and confronted armed suspects with his weapon holstered.

I have been at it for nearly 20 years and have been shot at a few times, but have yet to actually return fire (bad background sight picture in each instance) and have had to take my weapon out a great many times over that period. I now live and work in a small community and aside from the occasional takedown, hot stop or building search, I rarely have to take out my weapon while in the course of my duty. Even working in Mayberry, I still have to draw my firearm a couple of times a month or more.

Yes, he had to arrest people many times, but even those he arrested respected him and are friends even today as he went by the law and showed writs first.

Hmm ... I have the same experiences. But, a smart cop also knows that there are sociopaths out there that look to use friendship and kindness as a tool to get the drop on the officer.

And, of course, we don't carry around a bunch of "writs" so we don't have anything to show people. I will walk up to them and tell them they have a warrant and if they get squirrelly I'll ratchet it up from there if I need to.

So his record begs the questions, since he was able to do his job "Why Do Other Police Officers Need To pull a weapon or discharge it"? "Does this behavior of police promote more violence?"

The stats on assaults on officers is much greater today than it was 50 years ago. Once upon a time the cops could kick the crap out of you and get away with it. Today if they use even slightly too much force, the officer and the agency ends up in court. The world of the 50s and 60s was a different world. Just in my nearly 20 years I have seen a great change in the level of violence in general, and specifically directed towards law enforcement. You cannot compare the world of decades past with the world of today. And you also have to understand that some people are just deviants.

I could enter into a very lengthy and involved discussion of deviance in America ... but, that would take a lot of time and space.

Unfortunately I've digressed from my original question and am still searching for the answer...What Powers Are Granted by a Lay Affidavit

That depends ... what does it say on the affidavit? We don't have those out here so I can't say.

if your friend wants to complain or sue, he can call the agency involved and consult an attorney who can explain to him what the rights and obligations of law enforcement might be when they are in possession of a lay affidavit.

[free9man]

From the research I've done, it appears that "lay affidavit" may just be Dekalb County's term. I only found it on some kind of mental health/outreach pamphlet. The following is the same in every county I found references for, including Dekalb:

To commit someone involuntary for an evaluation, the law requires two people to petition the Court. The two Petitioners must have witnessed the behavior of the individual within 48 hours of their hearing date and must attest to the fact that the said individual is a mentally ill person, an alcoholic or is drug dependent, presents a substantial risk of imminent harm to him or others, and that this individual needs involuntary treatment. You should call the Court to schedule a hearing.

At the conclusion of the said hearing the clerk will notify the sheriff to pick up the order at which time the sheriff will have six days from the date of hearing to apprehend said person. After the person is delivered for evaluation, the doctors at the facility determine whether or not the person requires hospitalization.

I would assume the hearing would be before a Probate Court Judge. Once the Judge issues an order for evaluation, the police would then be authorized to go anywhere the subject might be known to frequent to attempt to locate and detain him/her. That would include their residence. You never answered my question, did the police force entry to the home or were they allowed in? Or did this take place outside the actual residence?

As has been stated several times, the only possible 4th Amendment violation would be the officer's conduct with his sidearm. That would be a VERY hard case to litigate if he/she could articulate a reason for their actions. Your friend needs a lawyer.

Something else that just occurred to me is that Dekalb County just recently started carrying Tasers. Is your friend sure it was a firearm and not a taser? Given the friends alleged conduct of obstructing the officer in the course of his duties by harrassing the officer for the paperwork, the Taser would be an appropriate escalation of force if he was refusing to comply with the officer's lawful commands to stop interfering.