South Dakota Court Says Government Doesn't Need To Pay For Home Cops Destroyed To Find A Fugitive Who Wasn't There

from the I-guess-this-is-on-you,-innocent-homeowner dept

Destroying houses appears to be a cop hobby. Somehow searching for suspects involves punching larger-than-man-size holes in walls, shattering every pane of glass that separates cops from perps, and forcibly removing every door that would otherwise open as designed if officers attempted to use the handles.

Maybe some of this is justified if an armed and dangerous suspect is barricaded inside. But law enforcement agencies have made citizens suspected of nothing homeless while attempting to extricate shoplifting suspects, homeless people, and a man armed with nothing more than an ice cream bar. One woman's house was rendered unlivable after it was the centerpiece in a 10-hour standoff between local cops and the only resident located in the house: the family dog. And a house that contained no one was destroyed after its empty interior thwarted cops' efforts to apprehend a nonexistent suspect for more than 19 hours.

Trying to get anyone other than innocent homeowners to pay for this damage is almost impossible. Almost every court has considered this the cost of doing government business -- something taxpayers are always asked to cover. If officers have a law enforcement reason to raze houses, the cost must be borne by those unhoused.

Another case involving the destruction of a house to capture a suspect who wasn't even on the premises has made its way into the court system. And it has (mostly) dead-ended there, thanks to a recent decision by the South Dakota Supreme Court.

In this case, the Hamlin County Sheriff's Department was searching for Gary Hamen, who had an outstanding arrest warrant for felony burglary and violation of a protective order. Gary -- who had threatened to shoot himself and anyone else he came in contact with -- called his father, Gareth, asking for a vehicle to drive to "Canada or Mexico." At that point, he was in a nearby trailer home owned by Gareth, located about 600 feet away from Gareth's trailer.

Officers listened in on this phone call and deputies saw Gary exit the trailer and then walk back inside. The Sheriff's Department requested the assistance of the Watertown PD and secured a drone to fly over the trailer in an attempt to spot Gary or see any exit routes he might take.

A SWAT team assembled and set up a perimeter around the trailer. But this effort appears to have been mostly pointless. From the decision [PDF]:

While the SWAT team attempted to contact Gary, officers received a report that a local resident had observed Gary running towards Castlewood. The resident reported that Gary came out of a tree line near a river and sewage pond, but he had run back into the trees. Sergeant Ellis and the SWAT team tried to locate Gary in this area and encountered another witness who also believed he had seen Gary. An officer inside the armored vehicle called Gary’s cellphone. Gary answered the phone call and claimed he was almost to Minnesota. He sounded out of breath, like he was running.

Law enforcement also spoke to Gary's brother-in-law, who confirmed he had seen Gary the previous night. During this conversation, officers received more information suggesting Gary was no longer in the trailer currently surrounded by a SWAT team.

Not too far away, even more radio traffic suggested entering the trailer wasn't going to result in the discovery of the fugitive.

Meanwhile, Troy Jurrens, who ran a business from his home nearby, was listening to the transmissions among law enforcement on a police scanner as they attempted to locate Gary. He stated: “someone announced on the radio that they were ‘going back to the trailer,’” to which another voice responded, “he’s not in the trailer.” Troy claimed, “The first voice answered back saying they were going back anyway.”

Deputies told Gareth they were going to try to enter the trailer. They did not mention they were planning to destroy the trailer to do this. They also did not ask for consent to enter the trailer, which was the property of Gareth Hamen. Cop-on-house violence ensued.

Not long after, the Sheriff authorized SWAT and the SRT to breach doors and windows on the Hamens’ mobile home. According to Wishard’s affidavit, the “tactical procedure [to secure the mobile home] is to create communication portholes in attempts to call out any subject or subjects that may be hiding inside.” If unsuccessful, gas munitions are used to flush out anyone inside. To create the communication portholes for the Hamens’ trailer, an armored vehicle pulled away the front stairs and deck, which were not attached to the mobile home or secured in the ground, and pushed in the front door with a ram. The second armored vehicle opened three portholes on the opposite side of the mobile home by breaking through windows and a sliding patio door, causing significant damage to the walls and the septic system.

And then:

Shortly after this procedure and before officers entered the mobile home, Gary was seen walking in the river near the Hamens’ residence. Law enforcement apprehended him at approximately 6:00 p.m.

Gareth Hamen sued, seeking compensation for his destroyed property. But there's nothing in the law that says the government needs to pay for property it destroys -- at least not in this fashion. While state law does allow property owners to seek compensation under the state constitution (in order to "ensure that individuals are not unfairly burdened by disproportionately bearing the costs of projects intended to benefit the public generally"), that clause doesn't apply to cops destroying a house to find someone who wasn't even in it. And it's that way because this court has always said that's the way it is.

[O]ur prior decisions have consistently applied the public use language in article VI, § 13 to both the takings and damages clauses, while rejecting a right to compensation under article VI, § 13 when the action involved the state’s police power.

That eliminates one of the allegations. But there's still qualified immunity to consider. Unfortunately, the state Supreme Court says only one of those two allegations will survive.

There were two egregious Constitutional violations: the warrantless entry and the excessive destruction of personal property. Guess which one gets to go forward.

We conclude that, at a minimum, the Sheriff’s warrantless entry into the mobile home required an objectively reasonable belief that Gary was living in and present in the home at the time of entry.

[...]

Given that law enforcement’s last contact with Gary suggested he was no longer in the home, coupled with the fact that law enforcement had surrounded the mobile home for several hours without incident or any materialized threat from Gary, we cannot determine as a matter of law that exigent circumstances existed at the time the Sheriff decided to enter the mobile home.

Since there's plenty of information on the record that suggests at least some officers involved had reason to believe Gary wasn't in the home, there could not possibly be exigent circumstances to enter the home without a warrant to locate someone arrested a couple of hours later outside of the home. This goes back to the lower court for more development of the record.

Unfortunately, the court somehow doesn't consider the damage caused during the search to be worthy of further examination. The officers are granted qualified immunity for the excessive force, even though the court says the entry itself may have been unconstitutional. Walking through a front door without a warrant is no good. Forcibly removing the door (along with windows, walls, part of the septic system, etc.) is just fine because no "reasonable officer" would have been aware that destroying a house to facilitate an illegal search was unconstitutional.

Regardless of whether the Sheriff used excessive force, the Hamens cannot prevail because they cannot show that the Sheriff’s use of force, even if it was excessive, violated a “clearly established” right.

The dissent says this makes no sense. If the entry was unlawful, everything that connected to that entry is similarly unlawful.

Regarding the § 1983 excessive force claim, as a starting premise, if the court determines on remand that the Sheriff’s entry into the mobile home was unlawful, then the nature and extent of force used is immaterial. In such case, the Sheriff is liable to the Hamens’ for the damage caused by the entry.

Furthermore, even if the entry is ultimately proven lawful, the damage caused was excessive, given the facts of the case.

Viewing the underlying facts in a light most favorable to the Hamens, it is questionable whether the use of “communication portals” of the sort made here were required given the small size of the trailer, particularly when considering that, up to the point of their decision to enter the trailer, law enforcement had been using a loudspeaker to attempt to communicate with Gary. Viewed in this light, the resulting damage to the trailer was intolerable in its intensity and unnecessary to execute the burglary warrant at issue.

That's how it stands in South Dakota: law enforcement can destroy a house to engage in an illegal search without having to worry about paying for the damage. A single claim survives this trip through the court system, which likely isn't going to produce a decision or settlement large enough to replace the home. And even if it does, it will come years after the damage was done.

Hide this

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: gary mhamen, hamlin county, houses, police, south dakota, swat team, wrong suspect


Reader Comments

Subscribe: RSS

View by: Thread


  • icon
    That One Guy (profile), 13 May 2021 @ 1:51pm

    Contortionists belong in the circus, not the court

    But remember, it's the criminals without badges that are the real threat to the public...

    It's interesting and sickening to see the judges try to have it both ways, buying the argument that the destruction was justified and not excessive because the sheriffs were searching for a suspect, while at the same time accepting the argument that it was an unconstitutional search and ignoring that there was good reason to believe the suspect wasn't even in the trailer.

    The excuse to apply QI is likewise disgusting and further evidence of why that legal abomination should never have been accepted into law and needs to be removed entirely as soon as possible, because the idea that law enforcement should need to be explicitly told that destroying private property during unconstitutional searches is wrong is utterly insane, yet again painting law enforcement as the dumbest people on the planet and not fit to hold any sort of power or authority.

    reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 14 May 2021 @ 1:43am

      Re: Contortionists belong in the circus, not the court

      "But remember, it's the criminals without badges that are the real threat to the public..."

      You would think that in a sane nation a normal citizen shouldn't ever have to face the situation where law enforcement drops in to wreck their home and a judge later on declares that the one who'll have to pay for a governmental Oops! will be said citizen.

      But then again the US has normalized a state of affairs where what they laughably refer to as law enforcement can literally rob random people at will (civil forfeiture), destroy property and livelihoods of citizens (house "searches"), and get away with video-documented murder nine times out of ten.

      Seriously, when anything remotely resembles this happens in european nations its considered a national crisis. How the fsck can americans still stand behind organizations whose death and property destruction toll exceeds those of actual rampage murderers?

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 14 May 2021 @ 11:28am

        Re: Re: Contortionists belong in the circus, not the court

        How the fsck can americans still stand behind organizations whose death and property destruction toll exceeds those of actual rampage murderers?

        Because Americans are complicit with it. They believe in absolute punishment not reformation. If someone does something bad in America obviously the punishment wasn't bad enough to dissuade them from committing the crime. Naturally, that goes for the police as well. If the police does something in America obviously they had every reason to do so and their actions are completely justified. Only a criminal would have said otherwise. (Can we use that as evidence of guilt? Write that down! Write that down!)

        I'm honestly surprised there's not a GTA clone somewhere staring a bunch of rogue American cops going nuts in foreign countries. It'd be a best seller over here....

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 13 May 2021 @ 3:52pm

    Need to redefine reasonableness

    Police are given way too much latitude to do their jobs. There needs to be a much stricter holding of police accountable to ensure their actions are “reasonable” given the circumstances. And “reasonable” needs to be more than “I had some reason”

    This is even more important when the property they destroy is not even owned by the alleged criminal. Polices job is to “serve and protect” which includes protection of peoples property. Not haphazardly destroy it for flimsy reasons

    reply to this | link to this | view in chronology ]

    • identicon
      AnonyOps, 13 May 2021 @ 5:41pm

      Re: Need to redefine reasonableness

      You have to be a special kind of stupid if you think the police serve and protect the public at all times.

      reply to this | link to this | view in chronology ]

      • icon
        Uriel-238 (profile), 14 May 2021 @ 1:16pm

        A special kind of stupid

        I think the police should be about serving and protecting the public, or they shouldn't exist as a tax-supported government department.

        At this point I'd assert South Dakota would be better off without its state police departments entirely than the ones it has. At least then, the public would only have to deal with (alleged) common criminals.

        reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 13 May 2021 @ 4:00pm

    Yes officers I saw the bad man run into the Judge's house...
    Go gangbusters on it.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 13 May 2021 @ 5:16pm

    ACAB.

    reply to this | link to this | view in chronology ]

  • icon
    sumgai (profile), 13 May 2021 @ 6:45pm

    Almost every court has considered this the cost of doing government business -- something taxpayers are always asked to cover. If officers have a law enforcement reason to raze houses, the cost must be borne by those unhoused.

    If devaluing a private property during an attempt to benefit the public by removing a potential menace to the community doesn't fall under the rubric of 'eminent domain', then I don't know what does. It's a taking, and calling it anything else is pure boolshit, make no mistake. Glad I don't live in SoDak.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 13 May 2021 @ 7:34pm

      Re:

      Glad I don't live in SoDak.

      This happens everywhere. Check your local paper, you'll find a similar story.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 13 May 2021 @ 8:33pm

        Re: Re:

        Oh yeah. Definitely not limited to one state.

        It’d be one thing if it was justifiable and proportional. It’s another thing altogether when they wreck your property for nothing/flimsy evidence and the response is, if you’re lucky, “gee that sucks”.

        reply to this | link to this | view in chronology ]

        • icon
          Scary Devil Monastery (profile), 14 May 2021 @ 1:57am

          Re: Re: Re:

          "It’d be one thing if it was justifiable and proportional."

          And most importantly, if the police wreck your shit then the police should pay for it.

          In my opinion and as I interpret the principle of law enforcement the only person whose shit it is OK for governmental agents to plunder and wreck are people reasonably suspected of serious criminal activity. And even then if it turns out the vandalism was unmerited the cops need to pay for the stuff to be replaced.

          Yet here we have a judge telling the citizenry that "Yeah, government can screw up your life any time a uniform feels so compelled. Live with it or leave".

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 14 May 2021 @ 11:32am

            Re: Re: Re: Re:

            "Yeah, government can screw up your life any time a uniform feels so compelled. Live with it or leave".

            Yep. One more step towards an Authoritarian shithole. Hm? What slippery slope? The ground has always been slippery and flat.

            reply to this | link to this | view in chronology ]

            • icon
              Scary Devil Monastery (profile), 18 May 2021 @ 7:42am

              Re: Re: Re: Re: Re:

              "One more step towards an Authoritarian shithole."

              What step, Kemo Sabe?

              I mean, by now the US more or less ticks five out of five checkboxes next to the dictionary-definitions for "failed state" and "rogue nation".

              reply to this | link to this | view in chronology ]

      • icon
        sumgai (profile), 14 May 2021 @ 12:05am

        Re: Re:

        I called out SoDak because the summary specifically called out that State, and specifically, its constitution. But yes, I'm sure they're not the only State in the Union to think that it's proper to treat their citizens this way.

        reply to this | link to this | view in chronology ]

  • icon
    JasonC (profile), 14 May 2021 @ 4:22am

    The only reasonable response here, is that if cops destroy your house and the courts tell you 'too fucking bad,' then you destroy theirs.

    Is that a crime? Probably. Would I give a shit that my retaliation would be illegal if my only real source of equity was destroyed by dipshits in uniform? Nope.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 14 May 2021 @ 4:53pm

    And thus South Dakota puts in place the precedent for "lets drive the blacks out by destroying their houses in fake raids" plan they had planned all along.

    and cue "white only" segregated neighbourhoods

    reply to this | link to this | view in chronology ]

    • icon
      nasch (profile), 15 May 2021 @ 7:55am

      Re:

      And thus South Dakota puts in place the precedent for "lets drive the blacks out "

      I'm just gonna stop you right there, because there are virtually no black people in South Dakota.

      reply to this | link to this | view in chronology ]

      • icon
        Uriel-238 (profile), 15 May 2021 @ 2:05pm

        Virtually no blacks in South Dakota

        I bet they have an underclass or three they might like to displace. Indians? Immigrants? Gays? Darwinists? Unitarians? Cat owners?

        reply to this | link to this | view in chronology ]

        • icon
          nasch (profile), 15 May 2021 @ 5:52pm

          Re: Virtually no blacks in South Dakota

          Indians?

          Definitely.

          Immigrants?

          There aren't that many, but they're probably disproportionately feared.

          Gays? Darwinists? Unitarians?

          About as welcome as you would imagine.

          Cat owners?

          Plenty of cat owners but as everyone knows dogs are more manly. And SD is a very manly state.

          reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 14 May 2021 @ 8:58pm

    Restless94110 losing his shit in 3, 2, 1...

    reply to this | link to this | view in chronology ]


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here



Subscribe to the Techdirt Daily newsletter




Comment Options:

  • Use markdown. Use plain text.
  • Remember name/email/url (set a cookie)

Close

Add A Reply

Have a Techdirt Account? Sign in now. Want one? Register here



Subscribe to the Techdirt Daily newsletter




Comment Options:

  • Use markdown. Use plain text.
  • Remember name/email/url (set a cookie)

Follow Techdirt
Special Affiliate Offer

Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Recent Stories
.

This site, like most other sites on the web, uses cookies. For more information, see our privacy policy. Got it
Close

Email This

This feature is only available to registered users. Register or sign in to use it.