Ninth Circuit Says Officers Can Be Sued For Destroying A Home While Searching For A Suspect

Here’s another appellate anomaly. Most circuits (including this one!) have concluded destroying someone’s home and property while engaging in law enforcement activity is just the sort of thing citizens are supposed to abide with good grace in exchange for living in a society.

The Ninth Circuit isn’t most circuits. It covers a lot of ground and a lot of population. But it’s home to the appeals court that finds in favor of cops far less often than its appellate-level compatriots. And that’s why Arizona resident James Denby might actually collect some compensation from the government for the violence committed by officers from the Casa Grande PD and the Pinal County Sheriff’s Office.

There’s a lot that’s wrong with what officers did to Denby’s home. And while we may normally think of excessive force as only being applicable when applied to human beings, this decision (which is, unfortunately, non-precedential) points out excessive force can also be applied to people’s residences and the items within them.

Officers had an arrest warrant for Abram Ochoa, who they believed was in Denby’s home. The combined police forces surrounded the house and tried to talk Ochoa into surrendering. The problem was that Ochoa wasn’t actually in the house. He was discovered five hours later hiding under a tarp in the yard.

A lot of stupidity happened between the moment the officers arrived and their eventual exit from the scene with the de-tarped Ocha in custody. On top of rejecting the residents’ offer to talk Ochoa into surrendering, one officer could have kept all of this from happening by just being a bit more proactive:

While establishing a perimeter around the residence, CGPD Officer Engstrom reported seeing movement under a tarp covering a car in the backyard, but did not investigate it further.

Instead of doing the one smart thing, the officers did this instead:

Upon arrival, the SWAT team used an armored vehicle known as a “Bearcat” to drive over a chain link fence and into the front of the residence, breaking the windows and front door. Upon execution of a search warrant, a medium robot was deployed into the home. When further attempts to communicate with Ochoa were unsuccessful, SWAT utilized pepper spray and tear gas canisters, and a noise flash divisionary device (“flashbang devices”) in an attempt to force Ochoa from the residence. A second robot deployed into the home was unable to locate Ochoa.

SWAT utilized two additional flash-bang devices to assist their entrance into the residence. During the search of the residence, SWAT team members destroyed furniture, windows, toilets, televisions, artwork, and antiques. After Ochoa was not found inside the residence, SWAT and CGPD decided to search the remainder of the residence’s property. Ochoa was found hiding underneath the tarp covering a car in the backyard—the same tarp that Officer Engstrom had reported movement under five hours earlier, but failed to investigate.

This case is now nearly seven years old and making its second appearance in the Appeals Court as the officers still remaining on the defendant list continue flailing away in hopes of getting cut loose from this lawsuit. Not going to happen, says the Ninth Circuit. There’s no legitimate excuse for what happened here. From the Ninth Circuit’s latest ruling [PDF]:

Here, the warrant authorized police to search the premises only to find and arrest Ochoa. After officers executed the warrant, it is undisputed Denby’s home sustained the following damage: all exterior windows were broken, and the chain-link fence and front door were destroyed, as were Denby’s PT Cruiser and another vehicle, all furniture in the home, the appliances, televisions, cushions, pillows, window coverings, shower doors, bathroom mirrors, a toilet, artwork, heirlooms, family pictures, clothes, and antiques. Many of these items were too small to hide Ochoa.

That last sentence is the stinger. Obviously the officers weren’t going to find Ochoa hiding in any of those things. They broke them because they couldn’t find Ochoa. They broke them because they could.

And that’s excessive force, even if it’s directed at inanimate objects:

Viewed in the light most favorable to Denby, the unexplained destruction of furniture and objects too small to hide Ochoa would support a finding that each of the entry team defendants employed unnecessarily destructive force during their search of Denby’s home.

It’s not a win for Denby yet. It will still have to go in front of a jury, more than 10 years after it happened. If these officers keep trying to get out of this, maybe they’ll finally end up getting hit with some precedent that will make it easier for others whose homes have been destroyed by law enforcement have a slightly better chance at collecting some compensation from the people who are supposed to be in the serving-and-protecting business.