Supreme Court Asked To Tell Cops That Consenting To A Search Is Not Consenting To Having Your Home Destroyed

from the domicile-made-furtive-movements dept

Five years ago, an Idaho police department destroyed a woman’s house to end a standoff with her dog. The Caldwell PD — after having been given permission (along with a house key) to enter the home to see if a suspect was in the home — decided this meant the Shaniz West had given them permission to fire grenade after tear gas grenade into the house before sending in the SWAT team to confront the family dog.

Exhibit A:

Shaniz West sued, stating that this 10-hour “standoff” that rendered her house uninhabitable for three months was a violation of her Fourth Amendment rights. The district court agreed, finding the officers being sued could be held accountable for destroying her home, rather than just using the house key she had given them.

Unfortunately, the Ninth Circuit Court of Appeals disagreed and granted the officers qualified immunity. According to the Appeals Court [PDF], this was an appropriate use of police force, given the circumstances. Mainly it was that the circumstances were unique enough, the court could find no way to say this was unreasonable. Without controlling precedent, the officers were allowed to escape the consequences of their ridiculous, house-destroying actions.

Here’s the Court’s summary, which sounds like it was written by a cop PR shop.

The panel held that assuming the consent was voluntary and defendants exceeded the scope of the consent by shooting tear gas into the house, they were still entitled to qualified immunity. The panel held that given that defendants thought they had permission to enter plaintiff’s house to apprehend a dangerous, potentially armed, and suicidal felon barricaded inside, it was not obvious, in the absence of a controlling precedent, that defendants exceeded the scope of plaintiff’s consent by causing the tear gas canisters to enter the house in an attempt to flush the suspect out into the open. Officers Seevers and Winefield were therefore entitled to qualified immunity on this claim.

“Causing tear gas canisters to enter the house.” It’s like the canisters were just hanging around outside and the SWAT team’s reasonable appearance on the lawn gave the canisters permission to hurtle themselves through the nearest windows and doors.

There was no suspect to flush out. The person they were seeking had vacated the residence before officers stopped Shaniz West and threatened her with arrest if she didn’t “consent” to a search of her house. What West actually consented to was far different than what the officers ended up doing, as the dissent pointed out.

The majority adopts an entirely implausible contrary reading of West’s consent, one a “typical reasonable person [would not] have understood by the exchange between the officer and the suspect.” Jimeno, 500 U.S. at 251. Because West “never expressed a limitation as to time, place within the house, or manner of entry,” the majority concludes that her consent that officers could “get inside” permitted a violent initial attack on her house with toxic objects. Maj. Op. at 13. In so concluding, the majority supposes that someone who permits law enforcement officers to “get inside [her] house” while handing over a key consents to the officers not entering the house but instead lobbing dangerous objects, such as tear gas canisters—or stones or bombs, for other examples—into the house from the outside. It further presupposes that, in providing consent to entry, a resident must preemptively forbid actions no one would guess are contemplated by the commonsense understanding of the articulated consent. That is not the law.

What this court finds reasonable for officers (destroying a house) does not align with what any “reasonable” non-cop would willingly permit when consenting to a search of their residence.

In concluding that the officers performed a search consistent with West’s consent, the majority does what no court has before—it holds that a “typical reasonable person” consenting to an entry to look for a suspect could be understood by a competent police officer as consenting to damage to his or her home so extreme that renders it uninhabitable for months.

There is still no finding that destroying a house while performing a consensual search is a violation of rights. The Ninth punted on drawing the line following this case, leaving officers free to “cause canisters to enter” houses in the future when performing searches for suspects.

The Institute for Justice wants some precedent set. It’s asking the Supreme Court to rule on this issue. The petition [PDF] seeks a ruling that would prevent officers from dodging lawsuits from citizens rendered homeless by consensual searches.

QUESTION PRESENTED

Whether an officer who has consent to “get inside” a house but instead destroys it from the outside is entitled to qualified immunity in the absence of precisely factually on-point caselaw.

It’s a valid question. It’s far more valid than the Ninth’s conclusion: that consent to search is consent to destruction. Even given the circumstances of this case — a potentially armed felon who was supposedly suicidal — the officers had options they normally didn’t have during warrant service: specifically, permission to enter the home and a key that unlocked the front and back doors.

Instead of using the key to enter the house (or at least attempt to — the front door also had a chain securing it, but it’s not like a bunch of tear gas grenades were going to dislodge the chain), the cops decided to call in the SWAT team. They left the premises, met with the SWAT team, came up with a plan and did a couple of dry runs and three hours later, decided to start the “search.”

It wasn’t until 4.5 hours later the key was even tried. It unlocked the back door, but redundantly because the glass had already been shattered by tear gas canisters, allowing officers to reach inside and unlock the door.

As the petition points out, there’s no reason to find precedent that directly aligns with law enforcement’s actions here. It should have been plainly apparent to the officers that their actions were unreasonable.

The dissent did not purport to find a “closely similar case[ ] to guide the clearly established law inquiry[.]” App. 27. Instead, it found no such case was necessary because any competent officer would have understood he could not lawfully destroy a house simply because he had consent to enter it.

This should be obvious. If it were a car being searched, a person’s consent to a search would not justify officers towing the vehicle to place away from the public and detonating it just because of the slim possibility something inside it might pose a threat to officers.

Hopefully, the Supreme Court will take a look at this case, rather than decide it’s up to the lower court to set a bunch of conflicting precedent — or far more likely, continue kicking the QI can down the road. Giving officers permission to search your house should never mean giving them permission to leave you with no place to live.

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Comments on “Supreme Court Asked To Tell Cops That Consenting To A Search Is Not Consenting To Having Your Home Destroyed”

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36 Comments
This comment has been deemed insightful by the community.
Uriel-238 (profile) says:

Re: Re: Siding with law enforcement

The US Supreme Court has notoriously sided with law enforcement before, even to say that the fourth amendment doesn’t apply if the crime uncovered is severe enough (the case example was possession).

I would be pleasantly surprised if the Federalist Five were willing to suggest some officers went too far in enforcing their police state.

This comment has been deemed insightful by the community.
That One Guy (profile) says:

As always, 'no one is dumber than a cop' is apparently the rule

Giving officers permission to search your house should never mean giving them permission to leave you with no place to live.

The punchline of course in that by bending over backwards to protect the cops who trashed a house the ninth circuit has sent a very clear message: Never grant police permission to search anything, because so long as they are creative in what they do they can get away with basically anything.

If the want to engage in a search of any sort demand a warrant, as that at least presents some sort of guidelines as to what they can do, and removes one of the excuses available to them if they go overboard.

The person they were seeking had vacated the residence before officers stopped Shaniz West and threatened her with arrest if she didn’t "consent" to a search of her house.

If that is what they consider ‘consent’ then I dearly hope none of the judges involved in this case are ever in a position to judge a mugging, armed robbery or rape case. ‘Consent’ granted when faced with a threat of punishment for refusal is not ‘consent’ by any remotely reasonable standard.

Bergman (profile) says:

Re: Re: Exactly right.

Don’t forget, the woman was under duress at the time she ‘consented’ to the police — they were threatening to arrest her and search anyway if she didn’t give ‘consent’ she was not obligated to give.

Refusing ‘consent’ was not an option, and attempting to negotiate terms would likely have resulted in an arrest for exercise of protected rights.

Anonymous Anonymous Coward (profile) says:

Re: As always, 'no one is dumber than a cop' is apparently the r

I am unsure whether the Supreme Court actually said that there had to be ‘clearly defined precedent’ for qualified immunity to be granted, but it sure seems that various courts have presumed that it did, or should have. The need to be able to point to a case that has ‘exactly’ the same circumstances in order to deny qualified immunity seems excessive. The general rule of ‘don’t do bad things’ seems like it would be enough. Given that, one might take exception to TOG’s subject line, some judges might just be dumber than cops.

Either that, or they are following some agenda that was not mandated by legislation, the Constitution, or the Supreme Court and perverts the concept of what a reasonable person might think.

That One Guy (profile) says:

Re: Re: One law for me, and another for thee

The need to be able to point to a case that has ‘exactly’ the same circumstances in order to deny qualified immunity seems excessive.

Not just excessive but grossly hypocritical, as I’d say it’s fairly safe to assume that the very judges applying that standard to police would never be willing to apply it to a member of the general public, letting someone blatantly violate the law simply because the exact manner they did so hadn’t previously been found to be wrong.

Anonymous Coward says:

Re: Re: Re: One law for me, and another for thee

I would honestly love to see qualified immunity done away with once and for all. If I were ever elected president, that would be my first executive decision. It is against the constitution and not in law anywhere. It’s just a double standard when judging one specific government employee and the execution of their jobs. If it would be a war crime for a soldier to do something, it should never be allowed by an officer on someone constitutionally innocent until proven guilty in a court of law.

Anonymous Coward says:

Re: Re: Re:2 One law for me, and another for thee

Yes, qualified immunity needs to be done away with. Police Unions keep these thug tyrants from losing their jobs. I think they should pay for their own Insurance, like Doctors. YOU screw up or act like a tyrant and get sued, it should be YOU, not the taxpayers that have to payout. If you can’t get insurance, you can can’t be a cop.

This comment has been deemed insightful by the community.
Wyrm (profile) says:

Re: Re: Re:2 One law for me, and another for thee

Actually, there is a good reason for qualified immunity.
It protects law enforcement agents and judiciary officials from litigation by people unhappy with the results of their encounter with the legal system. Mistakes are a part of human nature, so for example if you win a case on appeal, you can’t sue the judge of the lower court for failing to "judge correctly" the first time.

The problem is when judges decided to twist facts and logic into pretzels to grant QI even when the agent is obviously and willfully at fault. A cop that violates procedure, escalates a situation before shooting someone or puts himself in danger to justify use of force should be denied immunity because their own action caused the problem to begin with.
But judges have started this legal precedent (which, for all I know, is not supported anywhere in the Law) that any precise set of circumstances that has not been previously adjudicated against a cop cannot break QI. This in turn reduces very quickly the chance of lifting QI because more and more cases reinforce immunity. Since judges barely ever conclude against a cop, there are fewer and fewer sets of circumstances added to the pool of "conditions to lift QI".

Anonymous Coward says:

Re: Re: Re:3 One law for me, and another for thee

I thought qualified immunity was for things that were very obvious and not subject to debate.

For example, a police officer is tasked with stopping a speeding vehicle. In order to accomplish this somewhat dangerous task, the officer will most likely need to exceed the posted speed limit thus breaking the law. If we want our officers to perform these types of duties then we should probably not be issuing them speeding tickets.
Now … if in pursuit of the speeding vehicle, the officer were to intentionally run over several puppies and a grandmother then that officer should be brought up on charges because he did not have to do that in order to accomplish the stated task.

This comment has been deemed insightful by the community.
Anonymous Coward says:

Re: Re: Re:4 One law for me, and another for thee

Qualified immunity is so that officers aren’t surprised by changes in the law, really. For example, it would have been unfair to sue the officers in the Miranda case for not reading the Miranda rights to Miranda; even though the court ruled that it was a violation of his rights to not do so, there was no good way for those officers to know that prior to that case.

The problem comes when it gets extended to everything. You shouldn’t need a court ruling to know that consent to search a house does not mean you have consent to destroy it.

This comment has been deemed insightful by the community.
Norahc (profile) says:

This should be obvious. If it were a car being searched, a person’s consent to a search would not justify officers towing the vehicle to place away from the public and detonating it just because of the slim possibility something inside it might pose a threat to officers.

But that is exactly the type of behavior Qualified Immunity encourages.

Anonymous Coward says:

Re: Dear Judges

It’s already dead. People just haven’t realized it yet.

The Law favors the powerful. Anything that they want they can take, legally, and there’s little to nothing that the average person can do about it. It doesn’t matter if it’s your home, your means to a living or even your life. If they want it, they will take it and face no penalty beyond the rare wrist slapping.

The "Justice" department wants to know why it’s hated by those it’s "sworn to protect"? Because you pillage us at every opportunity. When we attempt to hold you accountable for your pillaging, you hide behind legal loopholes and red tape. Or worse, you pillage us again, thoroughly this time to make an example of us. You are illegitimate, damned be what the bought and paid for laws say.

The only thing keeping the place out of the gutter is fear and doubt.

Personanongrata says:

Legislating from the Bench

Unfortunately, the Ninth Circuit Court of Appeals disagreed and granted the officers qualified immunity.

The federal court jesters (ie judges) infesting the Ninth Circuit Kangaroo Court of of Appeals have out done themselves with this ridiculous bit of jurisprudence-pretzel-logic.

Specious court jester claims of qualified/absolute immunity directly contravene the plain English the US Bill of Rights was authored in which allow(ed) all persons from legal scholars to the most mundane layperson full understanding of the law.

Allowing life-tenured federal court jesters to act as if they have received judicial lobotomies and act as legal automatons in decreeing a speciously judiciary derived legal doctrine supersedes rule of law as legislated by congress is a direct affront to the foundational bedrock this once-was-republic was erected.

If justice still prevailed in America the jesters infesting the Ninth Circuit Kangaroo Court of of Appeals (etal) would be impeached for their failure to uphold the US Constitution.

The sole reason our ancestors authored The Bill of Rights was to protect the defenseless from the depredations of powerful interests.

Arbitrary application of the law is tyranny.

Norahc (profile) says:

Re: Re:

It’s been frequently said that ignorance of a law is no excuse for violating it. Qualified immunity also says that ignorance of a law is no excuse for violating it — unless you’re a cop

The Courts to average citizen: Ignorance of the law is no excuse

The Courts to cops: We know you’ve been specially trained in the law, and it must have been real difficult for you to understand it so we’ll create Qualified Immunity so you don’t need to know the laws you’re enforcing.

That One Guy (profile) says:

Re: Re: Re:

Not just ‘you don’t need to know’, but ‘you have a very real incentive to not know’, as qualified immunity means that cops are better off knowing as little about the law as they can get away with.

Law enforcement may be the only profession out there that not only rewards a lack of knowledge in the field but actively encourages and rewards it.

Aspergers Awareness NOW! says:

Re:. If it were a car being searched, a person’s consent to a search would not justify officers towing the vehicle to place away from the public and detonating it

That house cant be towed.

A house cant be towed, so this analogy doesnt fit my factitious disorder.

What if they blew it up on the spot? Because a car can be towed, but sits there, like a house.

Wait…do houses sit there or…..

Hanlons Razor!

Bergman (profile) says:

Is this really a qualified immunity case, though?

The key issue here seems to be that the appeals court is claiming that the homeowner consented to the police, and therefore qualified immunity applies.

But with consent, qualified immunity wouldn’t be needed. If I invite you into my house as a guest and offer you a Pepsi, you are not trespassing, illegally entering or committing burglary by taking and consuming that drink inside my house. Entering my house without my consent and stealing my Pepsi would be several different crimes.

The court ruling claims that giving permission to enter and to take something (a fugitive suspect) includes permission to destroy the place. If that is true, then qualified immunity is irrelevant because the homeowner has no standing to sue for what the cops did.

But that also means that if you are ever invited to enter a public building — by police, by court summons, etc, it wouldn’t be illegal to trash the place while you’re there because you have consent!

Uriel-238 (profile) says:

Re: The tradition of hospitality

Hospitality is a tradition that dates back before biblical times, and runs contrary to allowing police to go in and capture fugitives. The homeowner agrees to provide for the guests (food, shelter, safety) and the guests agree to behave themselves, including refraining from violence and disrespect, and respecting the personal rights of everyone also at the place.

There are many legends of rivals and enemies who find themselves within the same sanctuary, and even fugitives and stowaways are protected under this tradition.

These days, we hold contempt for traditions like these. Squads of troops will massacre everyone within a church. Liege lords implement policies that doom their vassals, and serfs in turn rebel in the name of self-determination. So the tradition of hospitality goes only so far as two people might agree on it in a moment. There are clear examples of how such traditions, once common law, cannot be relied upon any longer to determine how any given party will behave.

At this point it surprises me that we allow law enforcement to invoke consent given how often they will trick or cajole consent out of a suspect, or simply lie to the courts to justify illegal search.

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