Federal Court Says Destroying Someone's House To Apprehend A Fugitive Might Be A Constitutional Violation

from the FINALLY dept

Law enforcement has a pretty cavalier attitude towards private property. Whatever property they aren't unjustifiably seizing from drivers and passengers, they're razing to the ground. Sometimes they destroy whole houses during plain vanilla warrant service. Other times, situations are determined to be stand-offs in need of wholesale destruction, even when officers are facing down an empty house.

You'd think this sort of brazen and unjustified destruction would result in successful lawsuits to recover costs and damages incurred by these actions. But you'd be wrong. A successful lawsuit for law enforcement destruction of private property is more rare than a successful lawsuit over property seized via asset forfeiture.

Courts tend to defer to law enforcement expertise, often opining that this collateral damage is just an unfortunate side effect of good police work. Officers are free to overcome any obstacles placed in the way of their objectives, and if that means entire walls of houses need to be destroyed, that's just the way it is. Who are we (this is the judges speaking) to second-guess decisions made in the heat of the moment, even when said moment is a daylong "standoff."

Two Appeals Courts have issued precedential decisions that affect two entire circuits (the Ninth and Tenth), which make lawsuits brought in those jurisdictions even more unlikely to prevail. But a recent lawsuit -- featuring representation by the Institute for Justice (which has also had success fighting bogus forfeitures) -- has just experienced some limited success. It was brought by a woman whose residence was the victim of an overzealous Texas SWAT team that apparently felt the only way it could apprehend a suspect was by causing more than $50,000 of damage to her home.

It's not like the McKinney PD didn't have options. Vicki Baker, the plaintiff, gave them plenty, as Billy Binion reports for Reason.

In July 2020, Wesley Little—who Vicki Baker had terminated as her handyman about a year and a half prior—arrived at Baker's home in McKinney, Texas. Baker's daughter answered. Recognizing him from news reports that he was wanted for the abduction of a 15-year-old girl, she left the premises and called the police.

SWAT agents soon arrived. They set off explosives to open the garage entryway, detonated tear gas grenades inside the building, ran over Baker's fence with an armored vehicle, and ripped off her front door, despite being given a garage door opener, a code to the back gate, and a key to the home. The house was unlivable when they were through.

Baker's insurance company said it wasn't liable for damages caused by the government. The government -- in this case, the city of McKinney -- said it wasn't liable because she wasn't a victim of anything. The police had a legitimate reason to destroy her house (the apprehension of a fugitive). Sorry, but not anyone's fault, the city shrugged.

Baker sued. And a federal court has come down on her side. It very plausibly is the city's problem and it can be held liable for the unnecessary destruction of this home, says the court [PDF].

Because at this stage the Court construes all well-pleaded facts in the light most favorable to Plaintiff, the Court finds Baker has plausibly alleged an official policy promulgated by the City of McKinney. As alleged in the Complaint, after the City’s destruction of her property, Baker requested compensation from the City of McKinney, but the City denied the request, stating that there was ‘no liability on the part of the City or any of its employees.’” This assertion is sufficient to plausibly allege a “a single unconstitutional action by a municipal actor”— that is, a denial of the constitutionally mandated just compensation following a taking by the government.

As the court notes, this isn't the end of the discussion. As it points out earlier, there exists no precedent in its jurisdiction or in the Fifth Circuit saying the Takings Clause of the Fifth Amendment applies to incidents like these. But rather than use that lack of precedent as a means to dismiss her suit, it comes to the conclusion that destroying a home (and refusing to compensate the innocent homeowner) is a Fifth Amendment violation.

The City asks this Court to adopt what would constitute a per se rule—that destruction to private property resulting from the exercise of valid police power cannot constitute a Fifth Amendment Taking. Neither the Supreme Court nor the Fifth Circuit have directly found a taking that requires just compensation when destruction of property results from the exercise of valid police power. The City correctly points out that other circuits have foreclosed recovery under similar circumstances.

[...]

However, both the Fifth Circuit and the Supreme Court have suggested such action could amount to a taking… In Lucas v. S.C. Coastal Council, the Supreme Court opined that if “the uses of private property were subject to unbridled, uncompensated qualification under the police power, the natural tendency of human nature would be to extend the qualification more and more until at last private property disappeared.”

This federal court decides that sort of buck-passing stops here, at least for the time being. Not every claim is a valid Takings Clause claim, but this one appears to be at this point.

While the Court acknowledges that governmental bodies are not “liable under the Just Compensation Clause to property owners every time policemen break down the doors of buildings to foil burglars thought to be inside[,]” Nat’l Bd. of Young Men’s Christian Ass’ns v United States, 395 U.S. 85, 92 (1969) (emphasis added), Baker has alleged damage to her private property—and the City’s refusal to compensate for such damage—that plausibly amounts to a Fifth Amendment violation.

That's good enough to avoid dismissal. The same goes for the state law claims under the Texas constitution.

Baker pleaded that her home was intentionally destroyed in the government’s effort to apprehend Little. The affirmative actions Baker alleges include Department officers: (1) storming the house; (2) breaking windows; (3) knocking down the garage door; (4) knocking down the backyard fence; and (5) firing dozens of explosive tear gas cannisters into the home. Such actions were intentional, even if the City’s motives were to secure a threat to public safety. To be sure, the City itself indicates “the [Department] dr[ew] up plans” before busting into Baker’s home to apprehend Little. The resulting damage, therefore, can hardly be considered “incidental consequence[s] of the City’s actions.” Lastly, Baker alleges the City took her property for a public use—apprehension of a dangerous fugitive whose freedom threatened the community and public as a whole.

Baker has sufficiently pleaded a takings claim under the Texas Constitution. The actions taken by the Department officers damaged Baker’s home—that much appears undisputed. Even if the government did not intend to damage Baker’s property to apprehend Little, the City was substantially certain such damage would result. It is unreasonable for the City to suggest the Department officers stormed Baker’s house, broke the windows, knocked down the garage door, rammed down the backyard fence with a tank-like vehicle, and fired dozens of explosive tear gas cannisters into the home without a degree of certainty that such actions would cause damage to the property. As such, and after considering the pleadings and case law cited above, the Court finds Baker has sufficiently pleaded a violation of Article I, § 17 of the Texas Constitution as to survive a Rule 12(b)(6) motion to dismiss.

This doesn't mean the city of McKinney can't still find a way to screw this homeowner. But this does definitely make it more difficult to escape the lawsuit. And that extra degree of difficulty may be all it takes for the city to cut a check. To push it further might mean setting precedent at a higher level that would make cities and law enforcement agencies liable for excessive damage to private property. And that's precedent no law enforcement agency in the nation is in any hurry to see set.

Filed Under: due process, law enforcement, property destruction

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

Appeals Court Says It's OK For Cops To Destroy Someone Else's House To Apprehend A Criminal Suspect

from the maybe-just-use-fire-to-flush-them-out-I-guess dept

Three years ago, police in Colorado destroyed Leo Lech's home to arrest a person suspected only of shoplifting from a nearby Walmart when the house destruction began. Shoplifting suspect Robert Seacat abandoned his vehicle and hid in Lech's house. When police entered to arrest him, Seacat shot at them five times.

The Greenwood PD escalated its response. It brought in a Bearcat to ram a hole into the side of Lech's house. Officers used explosives to punch multiple holes in the sides of the house, hoping to locate the hidden suspect. The PD repeatedly fired teargas grenades into what was left of the house. Nineteen hours later, officers arrested Seacat, discovering two handguns and methamphetamines in the backpack he was carrying.

When Leo Lech was finally allowed to return to his home, he discovered he no longer had one.

The city gave Lech $5,000 for "temporary living arrangements," but offered no other assistance. Shortly after that, the city condemned Lech's house and told him he'd need to build a new holding pond in addition to a new house. Lech sued, alleging (among other things) that the PD's destruction of his house to catch a criminal suspect violated the Takings Clause. The district court disagreed, dismissing all these claims with prejudice.

Lech appealed but the Tenth Circuit Appeals Court has upheld [PDF] the lower court's decision. The court says no one's responsible for the mess the Greenwood PD created when it decided a citizen's house wasn't going to stand between officers and the man they were trying to arrest.

Lech argued the destruction of his house was an illegal taking by the government -- a violation of the Fifth Amendment. The government argued it was not a "taking." The destruction of Lech's house occurred during the course of police activity, therefore nothing was "taken" -- at least not in the "eminent domain" sense. In other words, the government never took Lech's house away from him. He was free to have it when the police were done with it, even if officers had rendered it uninhabitable.

The appeals court aligns with the district court, saying there's a bright line between "taking" and "destroying," even if it's the government doing the destroying. Lech argued the (temporary) seizure of his house was for "public use," in the sense that the pursuit of a criminal is a service law enforcement provides to the public. The appeals court isn't willing to stretch the definition of "public use" quite that far, even if it means the government can destroy someone's home without having to worry about compensating them for the destruction.

[T]he Lechs urge us to disregard the distinction between the police power and the power of eminent domain in resolving this appeal. In support, they point out that “the Takings Clause ‘was designed to bar [g]overnment from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.’” Aplt. Br. 13 (quoting Armstrong v. United States, 364 U.S. 40, 49 (1960)). And they argue that upholding the district court’s summary-judgment ruling would do just that: it would force the Lechs to bear alone the cost of actions the defendants undertook in an effort to “apprehend[] a criminal suspect”—actions that were clearly “for the benefit of the public” as a whole.

We do not disagree that the defendants’ actions benefited the public. But as the Court explained in Mugler, when the state acts to preserve the “safety of the public,” the state “is not, and, consistent[] with the existence and safety of organized society, cannot be, burdened with the condition that the state must compensate [affected property owners] for pecuniary losses they may sustain” in the process. Thus, “[a]s unfair as it may seem,” the Takings Clause simply “does not entitle all aggrieved owners to recompense.”

Accordingly, we reject the Lechs’ first broad challenge to the district court’s ruling and hold that when the state acts pursuant to its police power, rather than the power of eminent domain, its actions do not constitute a taking for purposes of the Takings Clause. And we further hold that this distinction remains dispositive in cases that, like this one, involve the direct physical appropriation or invasion of private property.

The appeals court says destroying a house is just an unfortunate byproduct of law enforcement. While it does acknowledge this narrow reading of the Takings Clause won't encourage officers to be more careful with other people's property when apprehending suspects, it says this won't prevent officers from being held individually responsible for "willfully or wantonly" destroying property. But if this the bar the Tenth Circuit is setting, it will be almost impossible for plaintiffs to meet it without evidence officers were more destructive than they needed to be to effect an arrest.

The law provides few protections for homeowners whose property comes between criminals and the officers pursuing them. While this is the end of the line for Lech's Fifth Amendment claims, he may still win enough from his surviving claims (negligence, intentional infliction of emotional distress, property deprivation under state law) to recover from his government-inflicted loss. Then again, it's going to be hard to prove officers did anything to Lech directly. If property destruction is just an unfortunate side effect of capturing criminal suspects, the lower court will likely side with the destroyers.

Filed Under: 10th circuit, 5th amendment, greenwood pd, leo lech, police, property destruction, robert seacat, takings clause