Ninth Circuit Says Man Can't Sue Officers Who Destroyed His Home To Capture An Unarmed Homeless Man

from the I-HAVE-BECOME-COP,-DESTROYER-OF-HOUSES dept

The nation's courts continue to disappoint citizens who've seen their homes destroyed by overzealous cops and their home-wrecking toys. If you're a suspected criminal and you hole up in your own home, perhaps some destruction is warranted, especially if you do something like open fire on law enforcement officers. You'd think extricating someone from someone else's house would be handled with more care. But it isn't.

The Ninth Circuit Appeals Court has just delivered some bad news to a homeowner who saw his farmhouse destroyed by an unknown number of cops who arrived at the scene in 55(!!) vehicles, including a "Crisis Response Team" motorhome and two helicopters. Two SWAT teams were involved -- one from the Fresno (CA) Sheriff's Office and one from the Clovis PD. (via Courthouse News)

This was all in response to a homeless man who had been spotted by a neighbor breaking into David Jessen's house after being rousted from a nearby construction site. The homeless man refused to come out and threatened to shoot officers. The man was actually unarmed and had done nothing more than help himself to the contents of Jessen's fridge when the supposed standoff began. Several hours later it was over. The combined forces of two law enforcement agencies resulted in $150,000 of damage. Five rooms were teargassed. Four doors and seven windows were destroyed, along with 90 feet of fencing that was rolled over by SWAT vehicles. An entire wall was ripped out as well.

All of this happened to Jessen and there's no recourse awaiting him in the Ninth Circuit. The court dispenses of multiple allegations, including failure to train and accusations that the Sheriff's Office uses live SWAT raids as "training exercises" by inviting nearby law enforcement agencies to get some hands-on work in. These claims were always a bit on the edge and it was unlikely any court would sympathize with Jessen's theory that his rural home provided the perfect training grounds for inexperienced SWAT team members.

But the decision [PDF] does come to the depressing conclusion that citizens and their homes are at the mercy of police officers in situations like these. Many law enforcement officials speak proudly of the discretion they have at their disposal. Far fewer actually exercise that omnipresent option. When you have more power than restraint, you tend to cause more damage than you prevent. One homeless B&E suspect is not worth $150,000 of damage. Of course, if you're not the one stuck with the bills, it really doesn't matter how much you put on someone else's tab.

The court says this is OK. It's just the unintended consequences of enforcing the law. But the use of the word "discretion" is a bit rich in this context.

The district court did not err in concluding that the Defendants are immune from liability for negligence under Conway v. County of Tuolumne, 231 Cal. App. 4th 1005, 1016 (2014). Public entities like Defendants are immune from liability for negligence if the alleged injuries were caused by the officers’ “discretionary acts.” Cal. Gov’t Code § 820.2; id. at § 815.2(b). In Conway, the California Court of Appeal held that discretionary act immunity applies to the selection of the means to effectuate an arrest, including the decision to deploy a SWAT team in effectuating an arrest, and the subsequent decision to deploy tear gas. The Jessens do not discuss Conway, let alone identify any distinguishing aspect of the officers’ decision to deploy tear gas here. Under Conway, Defendants are immune from liability, and the district court properly granted summary judgment for Defendants on the Jessens’ negligence claim.

When we hear the word "discretion," we tend to think of restraint. When cops hear the word "discretion," they think of something else: a wealth of options, most of them highly-destructive. When an opportunity to use all the cool tools and repurposed war gear arises, you take advantage of it. And if a person's home is standing in between you and the person you want, the house has to go.

Filed Under: 9th circuit, david jessen, discretionary acts, fresno, police, property destruction, swat teams

Lawsuit: Police Destroyed Farm House To Capture Homeless Man Armed With An Ice Cream Bar

from the USE-ALL-THE-TOYS!!! dept

Is it possible to arrest an unarmed homeless person without destroying the residence he's hiding in? To the Fresno County Sheriff's Department and Clovis PD (and far too many other law enforcement agencies), the question remains rhetorical.

David Jessen's farmhouse felt the full, combined force of two law enforcement agencies and all their toys last June. According to his lawsuit [PDF], a homeless man was rousted from a nearby vacant house after he was discovered sleeping in the closet. He left peacefully but was soon spotted by the construction crew breaking into Jessen's house. The construction worker, god bless him, called the police because he thought they could help.

Jessen was notified shortly thereafter. He returned home to find four sheriff's office cars parked at his residence (one of them "on the lawn," because of course it was) and a deputy yelling at his house through a bullhorn. According to the deputies, the homeless man refused to come out and threatened to shoot anyone who came in. Jessen was asked if he had any guns in the house. He replied he did, but two were unloaded and had no ammo and the third was hidden so well "only he could find it."

Jessen was asked to move his pickup truck and leave the area for his own safety. The deputies also asked for a house key and for the garage to be opened before he left. Jessen and his family went to a friend's house about a quarter-mile away. Several hours later, he was told he could return home. This is what Jessen returned to:

As David was driving toward the home from Jensen David counted approximately fifty-five (55) or more law enforcement vehicles. David was then ordered to park along Rolinda Avenue north of his home and instructed to walk to his home. On his way to his home David was stopped by a SWAT person who told him the “operation” was concluded, A second Fresno County Deputy Sheriff, that Jessen’s are informed and believe and upon information and belief allege was a Lieutenant, handed David a card and said “we have insurance for this.”

We'll pause there for a moment and consider the effect this must have on recipients. This is basically a message telling them their stuff has been damaged/destroyed. Not that the law enforcement agency cares. It might end up with higher premiums, but each officer involved still has an undamaged residence to go home to, unlike "civilians" like Jessen, whose houses happen to be at the wrong place at the wrong time. Insurance in the hands of officers like these is a permission slip, rather than a liability buffer.

Continuing on…

A third Fresno County Deputy Sheriff showed David the damage and David was overwhelmed by the severity and extent of the damage to the residence. The damage to the Jessens’ residence was massive and extensive. The magnitude of the damage to the Jessen’s’ home was unreasonable and unjustified, needlessly implemented to capture a singular, surrounded, unarmed, hungry, homeless person who posed no danger to anyone, and cooperated in leaving the neighbors residence earlier.

Here's the full list of what local law enforcement deployed to handle a single, resistant homeless person:

a. Utilized over 50 vehicles;
b. A K-9 unit,
c. Two helicopters;
d. Two Ambulances;
e. One Fire Truck;
f. A Crisis Negotiation Team arriving in a large motor home, that Plaintiffs are informed and believe included communications equipment and other support equipment;
g. A Robot;
h. SWAT Team; and
I. Back Up SWAT Team — Clovis City Police.

Now, the officers might have been concerned the homeless person had armed himself with one of Jessen's weapons, despite his assurances they were well-hidden/unloaded. Even so, they had plenty of options available that didn't include doing all the things they did instead.

a. Ripped out the wrought iron door and interior door to the Jessen’s home office;
b. Pulled the wall of the office off the foundation;
c. Broke the window to the office;
d. Teargassed the bathroom near the office;
e. Shattered the sliding glass door to the home for “robot” entry;
f. Ripped the wrought iron door off the laundry room;
g. Teargassed the laundry room;
h. Flash bombed the laundry room and the business office that resulted in breaking six (6) windows;
i. Teargassed the kitchen;
j. Teargassed the master bathroom;
k. Teargassed the sewing room;
l. Teargassed the bedroom in the northeast corner of the home; and
m. Destroyed over 90 feet of exterior fencing with a SWAT vehicle.

For reasons only known to the Sheriff's Department, a deputy continued to search for hidden handgun on Jessen's effed-up residence. He was only able to "recover" after receiving specific directions over the phone from Jessen to locate it. All guns were immediately returned to Jessen, making this last search -- which occurred nearly two hours after Jessen was given an insurance card and a broken home -- especially pointless.

In total, the interloping homeless person cost Jessen one window, an ice cream bar, some milk, and half a tomato. According to the lawsuit's allegations, the two law enforcement agencies rang up more than $150,000 in damaged property. Jessen alleges a long list of constitutional violations but also something a bit more whoa if true:

All of this military-like activity was implemented and completed without Jessen's request, approval, or consent. Jessens are informed and believe the training operation was undertaken because the Fresno County Sheriff’s Department and/or Clovis Police Department had found, by accident, the perfect location to conduct a training exercise on a rural home, on a dead-end street, in rural Fresno County, where “civilians” were not present, “civilians” were not going to congregate, “civilians” were not going to observe or interfere with the military training assault on the Jessen’s home and the situation posed no risk of injury to the officers. The Fresno County Sheriff‘s Department and Clovis Police Department seized upon this fortuitous opportunity to engage in a real-life training exercise.

Unless something amazing comes out of discovery during litigation, this claim is unlikely to survive. And chances are it won't survive an initial reading. Jessen is probably safer staying the Constitutional lane. But there is a hint of truth to the allegation, even if there was no provable intent to use Jessen's house as a SWAT team training ground. Law enforcement agencies spend a lot of money on tools and tactics which are rarely deployed. Recognizing a chance to take all the toys out for a spin isn't necessarily a conspiracy… it's just what happens when you have more power than restraint. That's what turns a "standoff' in which the suspect is armed with half an ice cream bar into a mostly-unusable house.

Filed Under: clovis, david jessen, fresno, police, police overreach