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 § 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.