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Brutsche v. City of Kent:
Imagine the police execute a lawful warrant but cause more damage than they should have caused when executing the warrant. In particular, they used a battering ram to break down the door when (at least arguably) they didn't need to. The homeowner sues the police for the damage: What's the legal standard for determining the officers' liability? And on what theory can the civil action be brought?

  You might think there are lots of cases on this, but there aren't: It actually arises only very rarely. Last week, the Washington Supreme Court became one of the relatively few courts to opine on the question in Brutsche v. City of Kent. The majority adopted the following rule:
We adopt Restatement (Second) of Torts ยง 214 and conclude that liability in trespass may arise if by intentionally doing an act that a reasonable person would not regard as necessary to execute the warrant and thereby damage the property, or by executing the warrant in a negligent manner and thereby damaging the property, law enforcement officers exceed the scope of their privilege to be on the land to execute a search warrant.
  The majority concluded that under this standard, there was insufficient evidence for a jury to conclude that the officers were liable. As a result, the homeowners were not entitled to damages.

  Justice Richard B. Sanders, one of the most libertarian state Supreme Court Justices (watch him address a CATO crowd on the police power here, Real Player required), wrote a very interesting dissent. Sanders argued that the damage to property should be a taking requiring just compensation under the Washington State Constitution. Sanders cites everything from CATO publications to our own Randy Barnett, and I suspect many VC readers will enjoy giving the opinion a read.

  Hat tip: FourthAmendment.com. For a related exchange between Ilya and myself a few months ago, see here.
Dilan Esper (mail) (www):
I would suspect that under the principle enunciated in Graham v. Connor (i.e., that you use a Fourth Amendment and not a Fifth Amendment in determining the unreasonableness of a seizure), the dissent's argument is a nonstarter under federal law.

Of course, Washington is free to interpret its own takings clause differently.
10.7.2008 3:57pm
hawkins:

Sanders argued that the damage to property should be a taking requiring just compensation under the Washington State Constitution.


I agree. The only possible exception that I would support is if property is damaged due to a place where the suspect hid contraband. For example, if the police had to tear apart a couch to find drugs.
10.7.2008 4:01pm
Deoxy (mail):
For example, if the police had to tear apart a couch to find drugs.


This exception swallows the rule. As long as there is any suspicion of drugs or any other reason to search for something hidden and small, then they can justifiably tear apart said couch (and pretty much anything else) looking for said drugs or small thing.

Basically, a search warrant is carte blanch to bust up your stuff, and there are at least some officers (hopefully very few) who enjoy using it that way.

Now, I think treating it as a taking (especially if nothing is found) is the only reasonable approach. Unfortunately, I don't think that's what is generally done.
10.7.2008 4:13pm
GMUSL '07 Alum (mail):
Washington's Takings Clause is considerably more robust than the judicially-castrated 5th Amendment:

SECTION 16 EMINENT DOMAIN. Private property shall not be taken for private use, except for private ways of necessity, and for drains, flumes, or ditches on or across the lands of others for agricultural, domestic, or sanitary purposes. No private property shall be taken or damaged for public or private use without just compensation having been first made, or paid into court for the owner, and no right-of-way shall be appropriated to the use of any corporation other than municipal until full compensation therefor be first made in money, or ascertained and paid into court for the owner, irrespective of any benefit from any improvement proposed by such corporation, which compensation shall be ascertained by a jury, unless a jury be waived, as in other civil cases in courts of record, in the manner prescribed by law. Whenever an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use be really public shall be a judicial question, and determined as such, without regard to any legislative assertion that the use is public: Provided, That the taking of private property by the state for land reclamation and settlement purposes is hereby declared to be for public use. [AMENDMENT 9, 1919 p 385 Section 1. Approved November, 1920.]
10.7.2008 4:19pm
Mark Jones:

Now, I think treating it as a taking (especially if nothing is found) is the only reasonable approach. Unfortunately, I don't think that's what is generally done.


It damn well should be, though. I'd like to see the cops take that into consideration. If they're so sure there are drugs hidden somewhere in the apartment, they ought to be on the hook for the damage they do while looking for them. And for repairs to the door when they kick it open before anyone inside could reasonably reach the door to open it.

There's absolutely no reason why individual citizens should bear the costs of such law enforcement actions. If "we" want the law enforced with violent raids and destructive searches of peoples' homes and property, then "we" should pay for it.
10.7.2008 4:25pm
PubliusFL:
Deoxy: "This exception swallows the rule. As long as there is any suspicion of drugs or any other reason to search for something hidden and small, then they can justifiably tear apart said couch (and pretty much anything else) looking for said drugs or small thing."

I read hawkins' exception as only applying where the suspect actually did hide contraband in the couch. If you hide drugs in your couch and the police tear it up in the process of finding the drugs, too bad for you, you shouldn't have been hiding drugs in it. If the police tear up your couch looking for drugs but you don't have any, that's a taking.
10.7.2008 4:26pm
Norman Bates (mail):
I remember reading how police jack-hammered the cement patio and swimming pool of a suspect in the Brinks robbery (an notorious 1950s Boston crime) in a vain attempt to find hidden lot from the heist. It was clear, even to a naive adolescent that the destruction of property was done more in a fit of pique than as part of a real attempt to find evidence. At the time, I was shocked to learn that a search warrant covered this kind of behavior despite the dubious basis for the warrant and the thuggish character of the resulting search.
10.7.2008 4:31pm
GMUSL '07 Alum (mail):
Orin,

How much case is there on the remedy for a search that is unreasonable in its extent (e.g., punching holes in every wall in the house to check for contraband hidden in the drywall), but reasonable for the fact of the search and the person and premises? While I'm typically sympathetic to the police, I worry (and these have been exacerbated by Radley Balko's fine reporting) that the police have too much discretion to cause massive amounts of property damage incident to a search, in a sense, imposing costs on the property owner (who may be innocent) rather than engaging in non-destructive but more costly (to the police) search methods (e.g., imaging techniques like x-ray machines or ultrasound).

While I understand that there should be a (very) limited exception to ensure the physical safety of the officers, as with "hot entry" when there's reasonable suspicion of a firearm, there has to be some sort of limit to what the police can do incident to a search. At the very least, there has to be some sort of just compensation for the innocent landowner's excessive property damage.

After all, isn't making the innocent landowner eat the cost, as opposed to the police/govt paying for it through non-destructive searches or after the fact, exactly what the takings clause is supposed to prevent?

"(The takings clause) was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole" - Armstrong v. U.S. 34 US 40 (1960)
10.7.2008 4:34pm
TriggerFinger (mail) (www):
Excuse me? "Hot entry" justified by "reasonable suspicion" (not even probable cause!) of a completely legal item? I won't buy that and neither will anyone with any sense.
10.7.2008 5:16pm
GMUSL '07 Alum (mail):
TF, Crim Pro isn't my area. My apologies for misstating the standard.
10.7.2008 5:36pm
Oren:

And for repairs to the door when they kick it open before anyone inside could reasonably reach the door to open it.

I've yet to understand why police need to kick the door in at all. You'd think surrounding a house and announcing to the residents your intent to violently storm the house would, itself, be enough to encourage anyone inside to walk out with their hands up (seeing as that's far more pleasant than your average felony arrest).

Police got enamored by the "dynamic entry" bullshit peddled by washed-out military types and forgot the basic lessons of authority versus power.
10.7.2008 6:49pm
Oren:

It was clear, even to a naive adolescent that the destruction of property was done more in a fit of pique than as part of a real attempt to find evidence.

One more than one occasion, an LEO has threatened to get a search warrant and explicitly noted the sort of property damage that might accrue from such a warrant. It's not just pique, it's often a conscious attempt to gain leverage.
10.7.2008 6:51pm
hawkins:

I read hawkins' exception as only applying where the suspect actually did hide contraband in the couch.


This is what I meant
10.7.2008 7:06pm
Mark Jones:
I've yet to understand why police need to kick the door in at all.


Short of trying to overwhelm the bad guy before he can murder someone or similar instances, I agree. Which is why I think the police should know before they start that they're going to be responsible for damages. Maybe not the individual officers (unless they're shown to have acted improperly), but the department. They're performing a public service, so the public should be responsible for the damages inflicted in their name.
10.7.2008 8:35pm
Thomas_Holsinger:
It's a taking under California law, but our law is pretty firm about this. I remember a case where a public utility power line in southern California sagged low enough to start a grass fire under a heavy load during a heat wave. The grass fire burned down some houses, whereupon the homeowners and their fire carriers successfully sued the power company for an inverse condemnation taking.

We even had such a case in my area where a local officer accidentally burned down part of an expensive almond orchard because, when he exited his vehicle to chase a fleeing suspect, the catalytic converter on his still-running patrol vehicle ignited a grass fire which destroyed his vehicle and the suspect's, plus some of the orchard when the vehicles' gas tanks blew up.
10.7.2008 8:38pm
Oren:

We even had such a case in my area where a local officer accidentally burned down part of an expensive almond orchard because, when he exited his vehicle to chase a fleeing suspect, the catalytic converter on his still-running patrol vehicle ignited a grass fire which destroyed his vehicle and the suspect's, plus some of the orchard when the vehicles' gas tanks blew up.

Was that on COPS? I had a great laugh at that one.
10.7.2008 9:45pm
Billll:
For the benefit of any of you who have never dealt with a policeman who wasn't on the stand and under oath, it works like this:
Cop:" Got anything in there (car, house, clothes, etc.) I should know about?"
Translation: I'm going to search.
You, thinking: If I say yes, that would give up my 5th amendment rights, and if I say no, the next line from the cop is...
Cop: "Mind if I look?"
Translation: I'm going to search. I have a judge on retainer who will sign a warrant if the drug dog reacts positively to the cash in your wallet, which he will. What'll it be: me tossing the place or me and my buddies destroying it?

When I was in High School, I saw the police as a high form of public service. 40 years later, I see them as a (barely) necessary evil. What happened?
10.11.2008 8:57pm