October 30, 2020

Supreme Court Asked To Tell Cops That Consenting To A Search Is Not Consenting To Having Your Home Destroyed

Five years ago, an Idaho police department destroyed a woman’s house to end a standoff with her dog. The Caldwell PD — after having been given permission (along with a house key) to enter the home to see if a suspect was in the home — decided this meant the Shaniz West had given them permission to fire grenade after tear gas grenade into the house before sending in the SWAT team to confront the family dog.

Exhibit A:

Shaniz West sued, stating that this 10-hour “standoff” that rendered her house uninhabitable for three months was a violation of her Fourth Amendment rights. The district court agreed, finding the officers being sued could be held accountable for destroying her home, rather than just using the house key she had given them.

Unfortunately, the Ninth Circuit Court of Appeals disagreed and granted the officers qualified immunity. According to the Appeals Court [PDF], this was an appropriate use of police force, given the circumstances. Mainly it was that the circumstances were unique enough, the court could find no way to say this was unreasonable. Without controlling precedent, the officers were allowed to escape the consequences of their ridiculous, house-destroying actions.

Here’s the Court’s summary, which sounds like it was written by a cop PR shop.

The panel held that assuming the consent was voluntary and defendants exceeded the scope of the consent by shooting tear gas into the house, they were still entitled to qualified immunity. The panel held that given that defendants thought they had permission to enter plaintiff’s house to apprehend a dangerous, potentially armed, and suicidal felon barricaded inside, it was not obvious, in the absence of a controlling precedent, that defendants exceeded the scope of plaintiff’s consent by causing the tear gas canisters to enter the house in an attempt to flush the suspect out into the open. Officers Seevers and Winefield were therefore entitled to qualified immunity on this claim.

“Causing tear gas canisters to enter the house.” It’s like the canisters were just hanging around outside and the SWAT team’s reasonable appearance on the lawn gave the canisters permission to hurtle themselves through the nearest windows and doors.

There was no suspect to flush out. The person they were seeking had vacated the residence before officers stopped Shaniz West and threatened her with arrest if she didn’t “consent” to a search of her house. What West actually consented to was far different than what the officers ended up doing, as the dissent pointed out.

The majority adopts an entirely implausible contrary reading of West’s consent, one a “typical reasonable person [would not] have understood by the exchange between the officer and the suspect.” Jimeno, 500 U.S. at 251. Because West “never expressed a limitation as to time, place within the house, or manner of entry,” the majority concludes that her consent that officers could “get inside” permitted a violent initial attack on her house with toxic objects. Maj. Op. at 13. In so concluding, the majority supposes that someone who permits law enforcement officers to “get inside [her] house” while handing over a key consents to the officers not entering the house but instead lobbing dangerous objects, such as tear gas canisters—or stones or bombs, for other examples—into the house from the outside. It further presupposes that, in providing consent to entry, a resident must preemptively forbid actions no one would guess are contemplated by the commonsense understanding of the articulated consent. That is not the law.

What this court finds reasonable for officers (destroying a house) does not align with what any “reasonable” non-cop would willingly permit when consenting to a search of their residence.

In concluding that the officers performed a search consistent with West’s consent, the majority does what no court has before—it holds that a “typical reasonable person” consenting to an entry to look for a suspect could be understood by a competent police officer as consenting to damage to his or her home so extreme that renders it uninhabitable for months.

There is still no finding that destroying a house while performing a consensual search is a violation of rights. The Ninth punted on drawing the line following this case, leaving officers free to “cause canisters to enter” houses in the future when performing searches for suspects.

The Institute for Justice wants some precedent set. It’s asking the Supreme Court to rule on this issue. The petition [PDF] seeks a ruling that would prevent officers from dodging lawsuits from citizens rendered homeless by consensual searches.


Whether an officer who has consent to “get inside” a house but instead destroys it from the outside is entitled to qualified immunity in the absence of precisely factually on-point caselaw.

It’s a valid question. It’s far more valid than the Ninth’s conclusion: that consent to search is consent to destruction. Even given the circumstances of this case — a potentially armed felon who was supposedly suicidal — the officers had options they normally didn’t have during warrant service: specifically, permission to enter the home and a key that unlocked the front and back doors.

Instead of using the key to enter the house (or at least attempt to — the front door also had a chain securing it, but it’s not like a bunch of tear gas grenades were going to dislodge the chain), the cops decided to call in the SWAT team. They left the premises, met with the SWAT team, came up with a plan and did a couple of dry runs and three hours later, decided to start the “search.”

It wasn’t until 4.5 hours later the key was even tried. It unlocked the back door, but redundantly because the glass had already been shattered by tear gas canisters, allowing officers to reach inside and unlock the door.

As the petition points out, there’s no reason to find precedent that directly aligns with law enforcement’s actions here. It should have been plainly apparent to the officers that their actions were unreasonable.

The dissent did not purport to find a “closely similar case[ ] to guide the clearly established law inquiry[.]” App. 27. Instead, it found no such case was necessary because any competent officer would have understood he could not lawfully destroy a house simply because he had consent to enter it.

This should be obvious. If it were a car being searched, a person’s consent to a search would not justify officers towing the vehicle to place away from the public and detonating it just because of the slim possibility something inside it might pose a threat to officers.

Hopefully, the Supreme Court will take a look at this case, rather than decide it’s up to the lower court to set a bunch of conflicting precedent — or far more likely, continue kicking the QI can down the road. Giving officers permission to search your house should never mean giving them permission to leave you with no place to live.

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