As anyone who has had the pleasure of being the target of a search warrant knows, as well as any criminal defense lawyer representing the target, it’s ugly business. When the cops come in to execute a warrant, nothing is sacred. Not the couch. Not the walls. Not the baby’s Teddy Bear.
This is the nature of a search warrant. Since a judge has decided that the cops are authorized to search, they can look anywhere the object of the search could possibly be hidden. But does this mean that it should result in the needless, pointless, wholesale destruction of someone’s home and possessions?
From Orin at VC, the issue was raised in the Washington State Supreme Court decision in Brutsche v. City of Kent. As Orin noted, one would think that this is a common problem and there would be a ton of caselaw on it, but the reality is just the opposite.
From my perspective, the reasons for this is fairly simple. Most of the time, the cops come up with something, and the target becomes the defendant. At this point, the defendant has more important issues at stake than damage to his home and property. Secondly, even when no evidence is seized, the cost of pursuing an action against the cops for damage just isn’t cost effective. It’s often difficult to prove damages, and the amounts aren’t so great as to justify the legal fees and costs. In other words, the target is screwed and there’s not much he can do about it.
So what is the lesson of Brutsche?
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.
Ah, the old reasonable
man person standard. This fine old concept that expects the good jurors to sit in the place of the reasonable cop and determined whether he’s gone too far in protecting their safety from criminals like the unreasonable plaintiff. It’s a very hard thing to do, since no one wants to “handcuff” the police in the good faith performance of their sworn duty to protect us. In other words, the jurors have a vested interest in backing the cops, since they are part of the group that benefits from their actions.
In contrast, Orin enthusiastically supports the opinion by Justice Richard B. Sanders, one of the most libertarian state Supreme Court Justices, wrote a very interesting dissent. Sanders argued that the damage to property should be a taking requiring just compensation under the Washington State Constitution.
Justice Sanders writes that the destruction of property is not an exercise of the police powers, but an act of eminent domain, the taking of private property for a public purpose. As such, it constitutes a “taking” and therefore requires “just compensation.”
That court failed to recognize the important distinction between the power of the police and the “police power.” Appropriating or damaging property for the public good does not absolve the State from compensating the owner, precisely the opposite. That is what the takings clause is all about.
Justice Sanders makes a very persuasive argument. But then, it’s the dissent. What else is new?