Are Police Immune if They Destroy Your Home in a Search?

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When Shaniz West gave police officers the keys to her home along with consent to gain entry to arrest her live-in ex-boyfriend, she didn’t think they would bombard her house with tear gas grenades using sawed off shotguns.

But that is exactly what happened. The personal belongings of Ms. West and her children were saturated with tear gas residue, and debris and broken glass were everywhere, according to court records. Adding insult to injury, the single mother was left holding the bag with only $900 granted by the Idaho city of Caldwell to restore her home.

In response, Ms. West sued in Idaho federal district court, which ruled in her favor. But, citing the qualified immunity doctrine, the Ninth Circuit Court of Appeals reversed the decision.

“Some judges, prosecutors, lawyers and police officers intentionally act badly or don’t do their jobs, but still we need a system in place,” said Mr. Michael Benza, an attorney and senior instructor of law at Case Reserve University in Cleveland. “If we operate with the idea that everybody is trying to do their best, then we can fix marginal problems.”

But West’s attorney, Joshua A. Windham, contends the qualified immunity doctrine has gone astray.

“It’s creating an incentive for officers to take less care than they otherwise would in conducting searches like this one and to ignore what they know to be the rules,” said Mr. Windham, who works with the Arlington, Va., Institute for Justice, a nonprofit advocacy group that filed a writ of certiorari with the U.S. Supreme Court in January on behalf of Ms. West.

The federal qualified immunity doctrine extended from 42 U.S.C. 1983, which was enacted in 1871 to provide newly freed African American slaves a remedy to sue when government workers violated their rights. It was the Supreme Court that subsequently established the qualified immunity doctrine in 1967, which prevents public officials, such as judges, police officers and prosecutors, from being sued frivolously for acting on their jobs as authorized by law.

“Because of the gross and unfettered manipulation of the qualified immunity doctrine, 42 USC Section 83 is a dead letter today and citizens, regardless of race, no longer have an effective way to obtain redress from the government when their rights are violated,” said Mr. Windham.

The Ninth Circuit’s reversal in West v City of Caldwell, based on the qualified immunity doctrine, conflicts directly with previously determined law within other Circuit appellate courts.

For example, in 1994 in Richmond, Kentucky, Dr. Ali Shamaeizadeh’s fiancée, Theresa Schmitt, called police to report a potential robbery in progress. When an officer arrived, consent was given to search the house for an intruder.

The police officer called in a supervisor to conduct another search after smelling marijuana and subsequently called an officer with greater drug-detection experience to conduct a third search.

Dr. Shamaeizadeh was arrested for allegedly growing marijuana, but when he sued in the Eastern District of Kentucky, the Sixth Circuit denied the police officers qualified immunity on appeal in Shamaeizadeh v. Cunigan, stating that initial consent could not have possibly extended beyond the initial search.

“The officers needed to come back with another search warrant and arrest warrant,” said Mr. Windham.

While there is a movement within the courts that is gaining momentum, which would address whether the qualified immunity doctrine should continue, Mr. Benza says it’s important to tread carefully.

“We don’t want government workers like police officers, prosecutors and judges to be harassed by frivolous lawsuits,” Mr. Benza told PacerMonitor News.

While the qualified immunity doctrine is sorted out, it might help to know your rights in the event a police officer or two come knocking.

Below are five tips:

  1. Stepping outside of your home does not protect you from arrest. “Police can arrest you without a warrant because you are in public,” said Mr. Benza. “If you refuse to come outside of the home, police then have to secure an arrest warrant.” 
  2. Don’t say more than you have to, and be clear about what you are consenting to. “If an officer comes to your door claiming authority to gain entry, ask to read the search warrant,” Mr. Windham said. “You can refuse entry when there’s no warrant.”
  3. Install security cameras inside your home. In the event there is a search, you’ll have a record to present to the court if the police overstep their boundary.
  4. Create a written record of the consent you are granting. “Request that the officers at your door sign an agreement that limits the scope of consent for entry and search to your written terms,” said Mr. Windham. “They can go get a warrant for the things that you’re not consenting to, such as opening drawers or touching belongings.”
  5. Videotape your verbal consent detailing restrictions. But avoid imaging police officers because not every state allows videotaping of police officers. 
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