Americans Turn to Courts in Search of Accountability for Costly Police Mistakes

Policing is an indispensable and demanding craft requiring skills acquired through repetitions of good judgment in bad situations. So, litigation arising from law enforcement excesses acknowledges the craft’s exacting standards. Sometimes reluctant courts should provide remedies that affirm those standards. Consider cases from Indiana, North Carolina, California, Texas, and Maine.In 2022, a mother at South Bend, Indiana, Amy Hadley, returned to find her home surrounded by police. They were neither in hot pursuit of anyone, nor did they believe they confronted a hostage situation. An officer’s mistaken belief was that a fugitive was active on social media from inside Ms. Hadley’s house.According to court papers, after many commands were shouted by bullhorn at the house (Ms. Hadley wasn’t home), the officers fired tear gas grenades through the windows, entered wearing gas masks, punched holes in walls, overturned furniture, and ripped off paneling and wall fixtures, from basement to attic. The gas permeated everything porous.The fugitive, who was never in the house, was arrested four days later. Ms. Hadley and her children slept in her car and elsewhere until the home was habitable. The more than $16,000 of damages was only partially covered by insurance. Government paid nothing because some federal appellate courts recognize (and others do not) a police-power exception to the Fifth Amendment’s takings clause.It says private property shall not be “taken for public use, without just compensation.” Damaging property while trying to apprehend a suspected criminal is a public use, and the takings clause contains no police-power exception to the requirement of compensation.Neither is there any justification for leaving government unaccountable for what happened in 2024 at Willard, North Carolina. There, officers misled a judge to get a search warrant for a home where a fugitive supposedly was, but was not and apparently had never been. They terrorized a family with late-night flash-bang grenades and weapons pointed at children. Government has refused public compensation for this, a “public use” taking gone wrong.The Supreme Court held in 1852 that private property “may lawfully be taken possession of or destroyed” in an “emergency” for the “public good,” but “unquestionably” government “is bound to make full compensation.” In 1871, the court held that in some “imperious circumstances” private rights must “give way,” but “government must make full restitution for the sacrifice.”The fact that a government action is lawful does not immunize government from accountability for the kind of damage done to Carlos Pena two months after the South Bend fiasco. A fugitive from United States Marshals, whose weapons were drawn, knocked down Mr. Pena and barricaded himself in Mr. Pena’s North Hollywood print shop at Los Angeles. After a 13-hour standoff, a SWAT team saturated the shop with tear gas, and found that the fugitive had escaped. Mr. Pena, seeking at least $60,000 for destroyed equipment, made the same arguments a Texas woman made, also in vain, after a 2020 SWAT raid. Using tear gas, explosives and a BearCat armored vehicle, officers wrecked her house while capturing a fugitive the owner had not welcomed into her home.Then there was the Maine 16-year-old suspected of being the cologne burglar. Police investigating a nonviolent, weaponless crime (taking shoes and cologne from a house party) identified a suspect who had no history of crime, violence, weapons possession or animus against police. SWAT officers, according to court papers, having calculated a “medium risk” threat assessment, brandished loaded assault rifles, wore heavy protective gear and used at least four SUVs to swarm a high school neighborhood.They arrested the 16-year-old who is four inches taller and 30 pounds heavier than the suspect the officers sought. Because the arrested boy was wearing a short-sleeve shirt, officers knew he lacked the prominent tattoo known to be on the actual suspect’s arm.Although the officers quickly realized they had the wrong person, they nevertheless, with assault rifles pointed at him, put him on the ground, put a knee in his back and handcuffed him. He is seeking compensation for deprivations of his constitutional rights to be secure in his person and effects.For the Institute for Justice, which is representing the plaintiffs in all of these five cases, business is depressingly brisk. A 2015 report found that between 1980 and that year, uses of SWAT teams soared from 3,000 per year to 80,000. The militarization of law enforcement has been dramatized by Immigration and Customs Enforcement agents operating with too little training and too much testosterone. The Institute for Justice hopes that the Supreme Court’s textualists will eventually acknowledge the absence of a police-power exception in the takings clause’s text.The Washington Post

Americans Turn to Courts in Search of Accountability for Costly Police Mistakes

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