SWAT Team Damages Mobile Home
By John Peccavi
If a bull got loose in a china shop and it broke a lot of expensive dishes, who pays for the damage? Probably the person who let the bull loose.
But what if cops turn into bulls in a china shop while they're chasing a suspect? Who pays then?
Well, it's complicated. To sue, you need at least one legal theory of liability, and more than one if possible. Sometimes the court will reject one theory but accept another.
That happened recently in a case decided by the South Dakota Supreme Court. The plaintiffs, Gareth and Sharla Hamen, lived in a house in a rural county. They also owned a mobile home, parked about 600 feet away from the house, which they would rent out.
The Hamens let their grown son Gary live in the trailer when no one was renting it. The sheriff, along with a detective from the Watertown police, came to the Hamens with warrants for their son's arrest on felony burglary and other charges.
The Hamens cooperated fully. While the sheriff was talking to them, their phone rang and Gareth answered. It was Gary, who said he was at the mobile home. Gareth did not tell his son that the sheriff and a detective were there but did tell the officers what Gary had said.
Upon learning that Gary was that close, the lawmen could have walked over to the mobile home but instead they found a vantage point about a half mile away and watched. They may have decided to take precautions because they believed Gary might be armed.
During this surveillance, they saw Gary leave the mobile home and then go back in. The sheriff called in the Watertown SWAT team. The SWAT team arrived but neither the sheriff nor officers realized that Gary already had slipped out.
Two witnesses reported that they had seen Gary. One of them said Gary had been headed towards the town of Castlewood. The sheriff requested help from the Highway Patrol and nearby Codington County's special response team. He asked them to try to intercept Gary before he reached Castlewood.
One officer called Gary's cellphone and he answered. Sounding out of breath, Gary said he was almost to Minnesota.
The special response team, led by the Codington County sheriff, arrived with another armored vehicle. By this time, the officers had quite a bit of information indicating Gary was not in the mobile home. Two witnesses had spotted him elsewhere, and on the phone he sounded out of breath. Nonetheless, for some reason, the lawmen decided to enter the mobile home.
The SWAT team had a procedure: Make "portholes" in the trailer so they could send in tear gas. Using an armored vehicle they did, but their "portholes" looked more like great open wounds with the trailer's insulation hanging out like torn flesh.
Right after the cops ripped open these holes, they received word that Gary had been spotted walking in a nearby river. They arrested him and never had to enter the mutilated mobile home.
When the county wouldn't pay for the damage, the Hamens sued. They based their case on 3 different legal theories.
South Dakota's constitution includes a provision stating that private property "shall not be taken for public use, or damaged, without just compensation." Similar language appears in the United States Constitution, but without the word "damaged." So, the South Dakota Constitution provides a property owner greater protection.
At first glance, it sounds like the Hamens have a good case. But wait. There's a catch.
Courts in many other states have held that when police damage someone's property while trying to apprehend a suspect, that damage isn't taking property "for public use." If a city used its eminent domain authority to obtain private land for, say, a park, that would be a "taking" for "public use."
Suppose a crook running away from the cops dashes into a china shop. The officers follow him in and, while struggling to put the cuffs on him, break $1,000 worth of teacups. Then they leave. The cups haven't been put to any use, let alone a public one.
What would be a public use? Imagine this weird situation: The principal of the county's "reform school" for juvenile offenders wants to teach these teenagers good manners by having a tea party, and sends two deputies to the store for more cups. If such a strange thing ever happened, it would indeed be a "taking for public use." But breaking the cups while chasing a crook would not.
The South Dakota Supreme Court had a choice. It could agree with courts in states such as California, Oklahoma and Oregon, and hold that damage which occurred incidentally, while trying to make an arrest, was not a "taking for public use." Or, it could find that under some circumstances there would be a "taking for public use," as courts in Iowa, Minnesota and Texas had found.
After considering the specific language in the South Dakota Constitution and its holdings in earlier cases, the Court went with California, Oklahoma and Oregon. The Hamens lost on that theory.
But their lawsuit also invoked a federal statute which Congress had enacted right after the Civil War. It allows suits when state or local officials, acting "under color of law," deny someone a clearly-established legal right.
The Hamens alleged that the sheriff had violated their Constitutional rights by using "excessive force." However, this claim was different from the typical "excessive force" claim, which alleges that an officer assaulted and injured someone.
To overcome the local government's "qualified immunity" defense, the Hamens needed to show that the right not to be subjected to excessive force, was "clearly established" for cases such as theirs. However, they could not find precedents that persuaded the court, which rejected their argument.
Fortunately, the Hamens had another legal theory. They argued that the SWAT team damaged the mobile home while performing an unconstitutional search. The officers did not have a search warrant and the Hamens had not given permission for them to enter.
A warrantless, unconsented search is presumptively unconstitutional, but in some circumstances, an officer does not need a search warrant to enter a dwelling. An officer with an arrest warrant for a particular person can enter that person's residence if the officer has a reasonable belief that the person is inside.
Did the SWAT team have a reasonable belief that Gary was inside the mobile home? When the officer telephoned him, he sounded as if he had been running and claimed to be almost to Minnesota. Two witnesses also reported seeing him. So, maybe the cops didn't have a reasonable belief that he was in the trailer.
The South Dakota Supreme Court sent the case back to the trial court to decide whether the officers had a reasonable belief that Gary was inside the trailer.
Another Case
Alerted by a burglar alarm, police in Greenwood Village, Colorado discovered that an armed fugitive had broken into a private home.
When they surrounded the house, the fugitive fired at a shot at one of the officers. They tried to send in a tactical team but the fugitive fired some more.
For five hours the police tried to negotiate with the fugitive but that didn't work. They tried tear gas. That also didn't work.
Finally, after using explosives to blow holes in the house, they apprehended him, but the house was ruined. The city wouldn't pay for the damage.
A federal district court held that blowing up the house was not a "taking for public use" and ruled for the city. So did the 10th Circuit Court of Appeals.
The Institute for Justice, representing the homeowners, tried unsuccessfully to get the case before the Supreme Court,which denied review. The property owners were stuck with the bill.
In this case, the officers had acted a lot more reasonably than in the South Dakota case and only went to extreme measures after other methods failed. But still, should the home owners bear the loss?
We need to change the law. The so-called Pottery Barn Rule should apply: If you break it, you own it.
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