Ninth Circuit Says Man Can't Sue Officers Who Destroyed His Home To Capture An Unarmed Homeless Man
from the I-HAVE-BECOME-COP,-DESTROYER-OF-HOUSES dept
The nation’s courts continue to disappoint citizens who’ve seen their homes destroyed by overzealous cops and their home-wrecking toys. If you’re a suspected criminal and you hole up in your own home, perhaps some destruction is warranted, especially if you do something like open fire on law enforcement officers. You’d think extricating someone from someone else’s house would be handled with more care. But it isn’t.
The Ninth Circuit Appeals Court has just delivered some bad news to a homeowner who saw his farmhouse destroyed by an unknown number of cops who arrived at the scene in 55(!!) vehicles, including a “Crisis Response Team” motorhome and two helicopters. Two SWAT teams were involved — one from the Fresno (CA) Sheriff’s Office and one from the Clovis PD. (via Courthouse News)
This was all in response to a homeless man who had been spotted by a neighbor breaking into David Jessen’s house after being rousted from a nearby construction site. The homeless man refused to come out and threatened to shoot officers. The man was actually unarmed and had done nothing more than help himself to the contents of Jessen’s fridge when the supposed standoff began. Several hours later it was over. The combined forces of two law enforcement agencies resulted in $150,000 of damage. Five rooms were teargassed. Four doors and seven windows were destroyed, along with 90 feet of fencing that was rolled over by SWAT vehicles. An entire wall was ripped out as well.
All of this happened to Jessen and there’s no recourse awaiting him in the Ninth Circuit. The court dispenses of multiple allegations, including failure to train and accusations that the Sheriff’s Office uses live SWAT raids as “training exercises” by inviting nearby law enforcement agencies to get some hands-on work in. These claims were always a bit on the edge and it was unlikely any court would sympathize with Jessen’s theory that his rural home provided the perfect training grounds for inexperienced SWAT team members.
But the decision [PDF] does come to the depressing conclusion that citizens and their homes are at the mercy of police officers in situations like these. Many law enforcement officials speak proudly of the discretion they have at their disposal. Far fewer actually exercise that omnipresent option. When you have more power than restraint, you tend to cause more damage than you prevent. One homeless B&E suspect is not worth $150,000 of damage. Of course, if you’re not the one stuck with the bills, it really doesn’t matter how much you put on someone else’s tab.
The court says this is OK. It’s just the unintended consequences of enforcing the law. But the use of the word “discretion” is a bit rich in this context.
The district court did not err in concluding that the Defendants are immune from liability for negligence under Conway v. County of Tuolumne, 231 Cal. App. 4th 1005, 1016 (2014). Public entities like Defendants are immune from liability for negligence if the alleged injuries were caused by the officers’ “discretionary acts.” Cal. Gov’t Code § 820.2; id. at § 815.2(b). In Conway, the California Court of Appeal held that discretionary act immunity applies to the selection of the means to effectuate an arrest, including the decision to deploy a SWAT team in effectuating an arrest, and the subsequent decision to deploy tear gas. The Jessens do not discuss Conway, let alone identify any distinguishing aspect of the officers’ decision to deploy tear gas here. Under Conway, Defendants are immune from liability, and the district court properly granted summary judgment for Defendants on the Jessens’ negligence claim.
When we hear the word “discretion,” we tend to think of restraint. When cops hear the word “discretion,” they think of something else: a wealth of options, most of them highly-destructive. When an opportunity to use all the cool tools and repurposed war gear arises, you take advantage of it. And if a person’s home is standing in between you and the person you want, the house has to go.