Officer Verbally Abuses 5-Year-Old

By K. W. Locke

     Add another case to your list of instances when a police officer acted inappropriately in dealing with a child.

    In an earlier post, I described a troubling incident in Rochester, New York.  Police there pepper-sprayed and handcuffed a 9-year-old girl   The police union's president shrugged it off, saying "there's a good chance she could have been hurt worse."

    That same blog post also discussed Aurora, Colorado police making a 6-year-old girl, and two teenage girls, lie flat on their stomachs on the pavement.  The cops handcuffed the teenagers, but the 6-year-old's wrists were too small.

    Now, there has been another ugly instance, this time involving two police officers in Montgomery County, Maryland.  You can watch bodycam video of one of the cops threatening a 5-year-old boy with beating.

    The boy had acted up in class and walked away from school.  At one point, after the boy started crying, the officer said:

Shut that noise up! You shut that noise up now! Boy, I tell you, I hope your mama let me beat you. I swear to you. I'm gonna [? wig ?] out.

If the cop treats kindergarten-aged children like this, what does he feel free to do to older people?

    Is the officer's behavior an early warning sign of the harm he might do in the future?  

 

 

Banner photograph of child by Arwan Sutanto (via Unsplash).

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

By K. W. Locke

    Some people can be "intelligent" without having a lick of sense.  But a smart person without any trace of wisdom is like a race car without brakes.  

    Convinced they are doing good, they go full speed ahead.  As for anyone in their path?  Look Out!

     Consider Chris Nocco, the sheriff of Pasco County, Florida, a suburban area north of Tampa.  His bright idea:  Figure out who is likely to commit a crime, and then watch that person like a hawk.

     He calls it "intelligence-led policing."  And how does the sheriff know who is likely to commit a crime?  Does he employ psychics, as in the film Minority Report?  No.  The computer tells him.

    In practice, his plan does more than watch someone.  Deputies make that person's life miserable, so miserable, in fact, that with any luck he will move out of the county and live somewhere else

   How does that differ from the "social credit program" imposed on the Chinese people by its communist government?  Well, in China the government is watching everyone.  In Pasco County, the sheriff only is watching those individuals unlucky enough to get on his list.

     But getting on that list is easy, and you can make the list without ever doing anything wrong.  If you're mentioned in a police report, even as a witness or bystander, your name goes into the computer and you are assigned a score.  According to reports, just being a friend of someone the sheriff deems a bad guy can get you points.

    Accumulate enough points and the computer puts your name on the list of "Prolific Offenders."  It doesn't matter whether you have ever been convicted of a crime.  The sheriff brands you an "offender" because he believes you are likely to commit a crime.

    The sheriff doesn't publish the list and there's no way for a person to get his name removed.  Once you get on the sheriff's list, his deputies will start showing up at unpredictable times and asking you nosy questions.

     Sometimes they will demand to search your house, even though they don't have a warrant.  Refuse, and they have ways of getting even.

    One of their favorite ways of retaliation is to cite you for building code violations, such as having grass that's too tall.   Deputies sometimes measure the grass with a ruler.  Or, they may find that one of the street numbers has fallen off your mailbox.

    With help from the nonprofit Institute for Justice, some of the harassed people have sued the sheriff.   It's hardly the first legal challenge to systems of "predictive policing."  Such systems have prompted litigation across the country, and scholarly criticism.

    One of the plaintiffs in the Pasco County lawsuit is Robert Jones.  He isn't on the sheriff's list but his son is.

    On one unannounced visit, the deputies looked in Jones' window and saw his son inside with another teenager.  The son was smoking.

    But the son wouldn't come outside and the father refused to make the teenager come out.  So, the deputies arrested the father on charges of contributing to the delinquency of a minor and resisting an officer.

    At other times the officers cited him for building code violations such as having grass too long, but no one informed Jones that he must appear in court on a certain date.  So, the deputies arrested him for failure to appear.

    All charges against Jones were dropped, but the arrests are on his record.  Finally, he and his family moved to another county.

    The sheriff keeps track of how energetically his officers are harassing people on the list.  Supervisors ask the deputies how many visits they have made each day to make sure they aren't slacking off.  Some officers have quit.

    When a Tampa newspaper published articles revealing the program, the sheriff defended it vigorously.  He thinks he's doing good.  And that's scary.

POLICE SWAT TEAM RUINS HOUSE
INNOCENT OWNER HAS TO PAY

By K. W. Locke

    Local governments love SWAT teams.

    A recent post on this blog described a South Dakota county with a total population of 28,000 which had two SWAT teams.  One was a part of the police force in Watertown, the largest town in the county.  But the county sheriff's department also had a tactical unit.

    Small towns and counties can enjoy the luxury and prestige of having a SWAT team because of the federal "1033 program." For decades, Congress has authorized the Department of Defense to transfer surplus military equipment to local law enforcement agencies.  A local community can obtain a $700,000 armored personnel carrier and only have to pay for shipping.

    So SWAT teams have blossomed like dandelions in springtime.  But although the equipment is almost free, it may come with side effects.  One study found a statistically significant correlation between having the military gear and an increase in fatal shootings by police.

    It would be surprising if officers who were dressed like military and armed like military also did not begin to think like military.  As will be discussed below, a SWAT team adopted a strategy one cop described as "shock and awe," a term used in the 2003 war in Iraq.

    Military tactics can leave someone's private property looking like a war zone.  That SWAT team from Watertown, South Dakota, inflicted more than $18,000 damage on a mobile home trying to capture someone who wasn't inside.

    The Watertown SWAT team acted rather recklessly, but even when such a tactical unit proceeds with utmost caution, property damage  can result.  The same blog post which described the overly eager Watertown SWAT team also told about the Greenwood, Colorado SWAT team's much more careful approach to capturing a fugitive who had barricaded himself in an innocent person's house.  This SWAT team used explosives only as a last resort, after every other method had failed.

    But the Colorado and South Dakota incidents had one thing in common:  Both SWAT teams did major damage to private property and, in both instances, the local governments refused to repair the damage.

    Here's another recent example.

     In 2019, 74-year-old Vicki Baker received some good news.  Her stage 3 breast cancer appeared to be in remission.  And her son, who had suffered a brain injury, was getting better.

    She decided to sell her home in McKinney, Texas and retire to Montana.  Her adult daughter Breanna would live in the house until someone bought it.

    To prepare the house for sale, they hired a handyman named Wesley Little, but when Breanna noticed him acting strangely, they fired him.

    That was in 2019.  Then, on July 25, 2020, Breanna receives a troubling call from her mother in Montana.  Vicki told her daughter that there was a post on Facebook by a woman who said that a man had run off with her 15-year-old daughter.  The man was the handyman, Wesley Little, they had hired and fired.

    Later comes a knock at the door.  It’s Little, and he has a teenage girl with him.  He says that he needs to stay there, and a place to park his car.  Breanna replies that he can park in the garage after she pulls her own car out.

    Breanna does, then drives to a Walmart parking lot and phones her mother.  They call the McKinney police.

   Officers meet Breanna in the parking lot.  She describes what happened and gives them the keys to the house and her garage door opener, along with the code to the lock on the back gate.

    The McKinney SWAT team comes to the house.  After hours, the girl escapes.  She tells the cops that Little is armed and won't come out.

    Rather than using the house key and garage door opener which Breanna had provided, the SWAT team decides to use "shock and awe," as one officer later described it.  So, instead of pushing a button to raise the garage door, they blow through it with explosives.  Likewise, rather than opening the gate with the code which Breanna furnished, a SWAT team armored vehicle runs over the fence.

    The officers fire about 30 tear gas canisters into the house.  Once inside, they find that Little had committed suicide.  It's not clear whether he had been overshocked or overawed.  Or both.

    Breanna's dog, who also had been in the house, survived.  But the explosions had rendered him blind and deaf.

 

    You be the judge of whether the SWAT team chose wisely in deciding to blast its way into the house.  And did the officers really have to fire 30 tear gas canisters into it?  Or were they so immersed in the moment they just got carried away?

    The McKinney SWAT team is highly trained in doing what SWAT teams do.  The officers can shoot and blow things up.  In fact,  they won the 2017 SWAT team competition sponsored by the Texas Tactical Police Officers Association.

     The McKinney SWAT team appears to excel at skills such as shooting and climbing.  But I have to wonder:  Have they received any training in how to decide when to blow up a garage door and when they should just use the garage door opener?

    Although a buyer had signed a contract to purchase the Baker home, it now was worth $50,000 less.  The deal was off.  And the city wouldn't pay for the damage. 

    This month, the Institute for Justice, a nonprofit law firm representing the Bakers, sued the City of Greenwood.  The legal battle has just begun, but the tenacious lawyers at the Institute are known to take cases all the way to the Supreme Court when necessary.

  We'll keep you posted.

April 25, 2021

 ANOTHER SWAT TEAM DAMAGES HOME

 

(ROANOKE, VIRGINIA)  An attorney has filed a lawsuit against five officers of the Roanoke, Virginia police department alleging that they retaliated against her for winning a murder case.  Her complaint in federal court alleges that a SWAT team caused needless damage to her home, and that one cop lied on an affidavit to obtain the search warrant which authorized the raid.

Along with two other defense attorneys, Cathy Reynolds represented her stepson, who was on trial for murder.  It took the jury only an hour and a half to reach a "not guilty" verdict.

Reynolds is black.  The other two lawyers are white.  Her lawsuit alleged that the police department only targeted her for retaliation.

Along with the Roanoke Police Department, the federal Bureau of Alcohol, Tobacco, Firearms and Explosives also participated in the raid.   We'll have more details in a future post.

Cops With Tasers Set Suicidal Man on Fire

By K. W. Locke

 
    Who causes more harm, a malicious cop, or one who is negligent?

    The murder of George Floyd was so heinous I'm inclined to say that malice results in more harm than negligence, but it's difficult to get accurate data.  Obtaining statistical information about negligent action is even more challenging than quantifying the amount of injury due to malice.

    For example, the Washington Post has begun keeping a database of fatal shootings by police, but I know of no comparable listing of fatalities caused by a mistake or inattention.

    Legally, a victim of police negligence may have less recourse than a victim of police violence.  The doctrine of qualified immunity, created by the United States Supreme Court,  stands in the way.  A recent decision by the U. S. Court of Appeals for the Fifth Circuit illustrates the problem.

    In 2017, a young man in Arlington, Texas called 911 to report that his father was acting erratically and threatening to burn down their house.  Police entered the house and found Gabriel Eduardo Olivas holding a gasoline can, which he then emptied over himself.

    One of the officers warned the other two that firing a Taser could ignite the gasoline.  Then, the other two officers saw that Olivas was holding something that looked like a lighter.

    The two officers fired their Tasers, which set the gasoline on fire, which quickly enveloped Olivas and spread to the house, burning it down.  Olivas' family managed to escape the flames but he died in the hospital two days later.

    Even apart from the one officer's warning, the other two should have known not to fire Tasers at a man doused with gasoline.  The manufacturer's instructions advise against using the weapon in a flammable environment.

    Besides that, there had been previous instances of Tasers igniting things.   Ten years earlier, in San Angelo, Texas, a man had doused himself with gasoline.  A cop with a Taser inadvertently set him on fire.

    In 2014 - about 3 years before Olivas' death - a scientific experiment had demonstrated the ability of a Taser to act as a spark plug, which isn't surprising, considering the 50,000 volts it delivers to the target.

    In 2019, the company which manufacturers Tasers said that it was aware of 12 instances when Tasers had set people on fire.  Eight of those people died.  So, there is a recurring problem.

    But the qualified immunity defense gives officers protection that a negligent individual not employed by government, doesn't have.  To strip an officer of this immunity, a plaintiff must show that he violated a right clearly established by the Constitution or a statute. 

    But the officers who fired their Tasers at Olivas were not breaking a law.  They had a right to use a Taser to prevent harm to others.  And they did not violate a Constitutional right unless the force they had used was excessive.

    The Court noted that an officer’s conduct must be judged “from ther perspective of a reasonable officer on the scene, not with the benefit of 20/20 hindsight.”  Placing themselves in the shoes of the officers, the judges could not think of a better alternative course of action:

If, reviewing the facts in hindsight, it is still not apparent what might have been done differently to achieve a better outcome under these circumstances, then, certainly, we, who are separated from the moment by more than three years, cannot conclude that [the officers] in the exigencies of the moment, acted unreasonably.

     But even if the Court did not know what should have been done, it seems obvious what should not have been done.  Does uncertainty about the best course of action justify a decision to make the worse choice possible?

    The Court’s reasoning illustrates why a person injured by a negligent police officer is in a worse legal position than, say, a person injured by a negligent doctor in private practice.  The Court cited precedent for the principle that “the use of deadly force is constitutional when the subject poses a threat of serious physical harm to the officer or others.”

    Since Olivas was threatening to set himself on fire, he was posing a threat not only to himself but also to the officers and to his family members in the house.  Therefore, the officers did not violate his rights by using deadly force.

    This type of analysis, applied when the issue involves “qualfied immunity,” does not consider the fact that the officers caused precisely the kind of harm they were trying to prevent.  Likewise, it doesn’t consider that the officers clearly should have known better.  The Taser manufacturer had issued a warning, there were past cases and scientific research showing that a Taser would ignite gasoline and, right before they shot, their fellow officer warned them that the Taser would set the gasoline on fire.

    If a private doctor prescribing a drug had ignored a warning label and past instances of the drug causing harm, the injured party could sue for malpractice and be compensated for the injury.  He doesn't enjoyed qualified immunity from suit.
 

    Many now call for the doctrine of qualified immunity to be abolished.  But even if it remains the law, the Supreme Court should tweak it to allow those injured by police negligence to be compensated.

 

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.

     The SWAT team established a perimeter around the mobile home and flew a drone over it but found no sign of Gary.  A SWAT sergeant drove up in an armored vehicle and called to Gary on a loudspeaker.  No answer.

     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.

Cops Framed Innocent

Man; Real Killer Free

for 25 Years

By John Peccavi

    Christopher Tapp spent 20 years in an Idaho prison for a June 1996 rape and murder he didn't commit.  Last week, the real killer pleaded guilty to the crimes.

    Brian Dripps told the judge that when he went to the victim's apartment, he had intended to rape her but not kill her.  However, Dripps said, "I was pretty high on alcohol and cocaine."

    Ultimately, DNA evidence linked Dripps to the crime. When confronted with that evidence, Dripps confessed.

    But appallingly, in 1997, after arresting another man for the murder, Idaho Falls police ignored DNA evidence proving his innocence.

    Just 6 days after they arrested 19-year-old Christopher Tapp, the police learned that his DNA did not match that found at the crime scene.  That did not stop them from trying to pin the crime on him.  Nothing stopped them.  Not conscience.  Not law.

    Twenty years later, the Idaho Innocence Project secured Tapp's release from prison.  In July 2019, a court found that he did not commit the crimes and cleared his record.

    Last October, Tapp sued the officers and the city of Idaho Falls.  His lawyers filed a 57-page complaint in federal court, accusing the police of engaging "in a coordinated campaign to wrongfully convict Tapp for Dodge's murder."

    The cops' tactics, as described in the complaint, sound like the methods of a dictatorship's secret police:

In particular, Defendants coercively and abusively interrogated Tapp for about sixty hours, repeatedly threatening him with death, lying to him, and falsely promising him leniency if he told them what they wanted to hear. Defendants also continuously used coercive and  manipulative sham polygraphs on Tapp — not to get to the truth —  but in order to coerce Tapp into giving five distinct, false and fabricated confessions.

    The lawsuit also alleges that the police coerced a teenage girl into falsely testifying that she overheard Tapp confess to the crime.  A drug problem may have made the girl particularly vulnerable to intimidation.  She later admitted that her testimony was false and given only because police threatened her.

    By 2009, so much evidence of Tapp's innocence had surfaced that even the victim's mother was convinced and urging that he be released.  A new DNA testing technique - which ultimately revealed the identity of the true killer - had become available. The Idaho Innocence Project asked the police to send the crime scene specimens to a lab which perform the new analysis, but the police declined.

    Tapp would spend 8 more years in prison before being released.  During that time, his wife died in a car accident.

    Even after release, Tapp had to wait 2 more years before a court found him innocent and cleared his name.

 

Banner photograph of Brian Tapps from Bonneville County (Idaho) jail.  Photo of Angie Dodge from her mother Ms. Carol Dodge.

Cop Shoots Handcuffed Man

By John Peccavi
 
In January 2020, a police officer in Prince George's County, Maryland, put a handcuffed man in his patrol car.  Minutes later, he fired 7 shots, six of them striking the handcuffed victim, William Green, who died.

The officer, Michael Owen, Jr., was charged with second degree murder and other offenses and is being held without bond.  But exactly what happened that night, and why, remains unclear. The officer was not wearing a bodycam.

News reports suggest that Owen may have claimed that there had been a struggle.  However, the Prince George's County police chief said that there was no corroborating evidence.

We know for sure that the victim, William Green, was sitting in the police car with his hands cuffed behind him when shot.

It appears that from 10 to 20 minutes elapsed between the time Owen handcuffed Green and put him in the car, and the time Green was shot.  More information should come out at Owen's trial, now scheduled for March 22 of this year. 

Prince George's County agreed to pay $20 million to the victim's family.

But could the death have been avoided?  A Washington Post article suggests that there were warning signs:

Owen's supervisors were unaware he had sought workers' compensation for psychological difficulties stemming from a fatal shooting early in his career, department officials said, even though Owen was supposed to notify them.  Over the next decade, Owen used force against civilians at least nine times. . .Twice last year, videos taken as Owen was arresting people show him with his hands on their
necks.

Would William Green be alive, and Price George's County $20 million richer, if the police department's supervisors had been. . .supervising?

Banner photograph of handcuffs by Skiddle2003 (Wikimedia Commons).