John M. (Jack) Collins, General Counsel, Massachusetts Chiefs of Police Association
ourts recognize that in executing a warrant, officers must, on occasion, damage property in order to perform their duties.1 In fact, some amount of damage is almost expected when executing a “no-knock” warrant. Even the U.S. Supreme Court noted that a reasonable suspicion of exigent circumstances warrants a no-knock entry by police officers to execute a search warrant, even if forced entry is required, which may result in damages to the premises.2 However, if the amount of damage to a target’s property is excessive or results from malicious intent, constitutional and other claims may arise.
Ironically, one of the justifications for no-knock warrants is their ability to help reduce the amount of property damage that might otherwise result when the police attempt to execute a search or arrest warrant. However, echoing courts from across the United States, the Massachusetts Supreme Judicial Court noted that the reason for the knock and announce rule is the desirability of “decreasing the potential for violence [initiated by residents in response to a sudden and unexpected invasion of their premises, provoking further retaliatory violence by the police], protection of privacy, and the prevention of unnecessary damage to homes.”3 [emphasis added]
Even if not constitutionally required, many courts agree that the presence or absence of an announcement is a factor considered in determining the reasonableness of a search and that a no-knock search must be reasonable.4 A statutory violation in Oregon, for example, rises to the magnitude of a constitutional infringement only if an intrusion violates both the interest in protecting persons who might be injured by violent resistance to unannounced entries and the interest in protecting the householder’s right to privacy.5
The U.S. statute on property damage during warrant executions provides that officers may break open any outer or inner door or window of a house or any part of a house, or anything therein, to execute a federal search warrant if, after notice of their authority and purpose, the officers are refused admittance.6 However, this is still subject to an exigent circumstances exception.7
The Fourth Amendment and its counterparts under various state constitutions protect against unreasonable searches and seizures. In U.S. v. Ramirez, the U.S. Supreme Court ruled that an evaluation of the reasonableness of a no-knock entry “in no way depends on whether police must destroy property in order to enter.”8 In that case, the court concluded that officers who broke a window of the defendant’s garage during the execution of a search warrant did not violate the U.S. statute authorizing an officer to damage property in executing a search warrant under certain circumstances, given that the officers had a reasonable suspicion of danger arising from knocking and announcing their presence and acted reasonably in breaking the window to discourage any occupant from rushing to weapons that the officers believed to be in the garage.9
Some courts have suggested that the Fourth Amendment requires that police satisfy a higher standard of exigency when a no-knock entry results in the destruction of property. In the 1991 case of U.S. v. Becker, the Ninth Circuit held that a mild exigency can justify entry if such entry can be done without property destruction, but more specific inferences of exigency are necessary to justify physical destruction of property.10 A California state court, noting that a battering ram could cause significant structural damage leading to a collapse, held that a magistrate’s prior approval was needed to employ a battering ram.11
The examples discussed, as well as other court cases on the topic, seem to reinforce the likelihood that a court will look at the totality of the circumstances before deciding if the police acted reasonably. When the police expect to find firearms inside a residence or location, the perceived need for the use of force is often heightened. For example, a U.S. federal court found that officers in Puerto Rico were reasonable in threatening to knock down the door of a female officer given that they were in the midst of executing a search warrant where they expected to find firearms.12 The court explained that the reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with 20/20 hindsight, and the defendant’s “protestation that she was not treated with the courtesy she expected from her fellow police officers does not make their actions unreasonable.”13
Liability for Damage
Although the bulk of any damage claims can be expected to focus on the breaking done by officers initially to gain entrance, in some cases the damages may result from the manner in which a search is conducted. It is even possible that officers will accidentally damage a person’s home or other property during the course of executing a warrant.
Even in instances of minimal property damage, some individuals have claimed that the failure of the police to knock and announce their presence when required to do so amounts to a deprivation of the citizen’s constitutional rights. As a remedy, they have sought not only suppression of any evidence seized, but also monetary awards and attorneys’ fees under §1983.
In the absence of a no-knock warrant, if officers fail to knock and announce and use force to enter, courts will review the facts of the case to determine whether such entry was justified based on the facts known to the officers at the time, even if the magistrate refused to issue a no-knock warrant.14
In a 2013 case from the Second Circuit, the issue of whether a deputy sheriff violated an owner’s Fourth Amendment rights by shooting her family’s dog during the execution of a no-knock search warrant of her home was for the jury to decide in the owner’s §1983 action, even if the officers theoretically could have used pepper spray, a Taser-like device, or a catch pole, where there was no evidence that any non-lethal means of controlling the dog would have allowed officers to quickly enter the home and safely and effectively execute the no-knock warrant, and officers testified that non-lethal methods would not have been effective in this particular case.15
Officers need to check their state tort law for additional remedies. The Federal Tort Claims Act, 28 U.S.C.A. § 2680(h), creates a right of action for torts committed by federal officers during the unreasonable execution of a search warrant.
Civil Rights Claims?
Many claims of excessive force in the execution of search warrants find their way to courts by way of civil actions alleging violations of 18 U.S.C.A. § 1983, the Federal Civil Rights Act. While the vast majority involve alleged excessive force against an individual, the same legal principles—especially reasonableness—would seem to apply when a court analyzes claims that excessive force was used against a person’s property.
Not every violation of the applicable statute will support a civil rights claim. As discussed above, the U.S. Supreme Court noted that the applicability, in a given instance, of the exigent circumstances exception of the federal statute is measured by the same standard used to determine whether exigent circumstances justify a no-knock entry under the Fourth Amendment of the U.S. Constitution.16 A statutory violation rises to the magnitude of a constitutional infringement only if an intrusion violates both the interest in protecting persons who might be injured by violent resistance to unannounced entries and the interest in protecting the householder’s right to privacy.17 “The mere fact that property was damaged in the course of executing [a] warrant does not establish a constitutional violation.”18
If the actions of the targets of the warrant led to at least part of the excessive property damage, a civil rights claim may be more difficult to sustain, since in order to succeed in a §1983 action, plaintiffs must prove that defendants’ actions were a cause in fact or a proximate cause of their injury.19
Whenever the police damage a person’s home or commercial property, it is unlikely that a person’s property insurance will cover such damages; thus, the individual is likely to look for some compensation to cover the cost of repairs.20 In most cases, paying for the cost of repairing doors or locks is less than the attorneys’ fees to contest the claim. The problem comes when the damage is extensive and allegedly exceeds the legitimate objectives anticipated by the magistrate who issued the warrant. In such cases, especially when there is intentional or excessive destruction, a civil rights claim might result, seeking a host of damages and attorneys’ fees.
Chiefs should be sure their departmental policies and training reflect constitutional standards for conducting warrant executions and that supervisors are prepared and willing to help ensure officers do not violate citizens’ rights or excessively damage their property when executing a warrant.
As with so many situations confronting police officers, documentation is the key to avoiding claims of failure to train or supervise. Courts and juries are likely to expect all departments to maintain the same level of recordkeeping as regional SWAT or other LEC-based teams. To paraphrase an expression all officers learned at an academy, “If it is not in your report, it didn’t happen!” ♦
1Clark v. Fiske, No. SA–05–CA–0485–FB, slip. op. at *3, 2005 WL 3617731 (W.D.Tex. 2005) citing Dalia v. United States, 441 U.S. 238, 258 (1979).
2U.S. v. Banks, 540 U.S. 31, 124 S. Ct. 521, 157 L. Ed. 2d 343 (2003).
3Commonwealth v. Cundriff, 382 Mass. 137, 415 N.E.2d 172 (1980). See also, State v. Rockford, 213 N.J. 424, 64 A.3d 514 (2013).
4Green v. Butler, 420 F.3d 689 (7th Cir. 2005); People v. Fonville, 158 Ill. App. 3d 676, 110 Ill. Dec. 935, 511 N.E.2d 1255 (4th Dist. 1987); U.S. v. Singer, 943 F.2d 758 (7th Cir. 1991).
5State v. Tweed, 62 Or. App. 711, 663 P.2d 38 (1983).
618 U.S.C.A. § 3109.
7U.S. v. Banks, 540 U.S. 31, 124 S. Ct. 521, 157 L. Ed. 2d 343 (2003); State v. Ochadleus, 2005 MT 88, 326 Mont. 441, 110 P.3d 448 (2005).
8U.S. v. Ramirez, 523 U.S. 65, 118 S. Ct. 992, 996, 140 L. Ed. 2d 191 (1998).
10U.S. v. Becker, 929 F.2d 442 (9th Cir. 1991).
11Langford v. Superior Court, 43 Cal. 3d 21, 233 Cal. Rptr. 387, 729 P.2d 822 (1987).
12Rosario-Franqui v. Negron-Vazquez, 106 F. Supp. 2d 194, 197 (D.P.R. 2000).
13Id., see also Marcilis v. Township of Redford, 693 F.3d 589 (6th Cir. 2012).
14Richards v. Wisconsin, 520 U.S. 385, at 394117 S. Ct. 1416 at 1421-1422 (1997).
15Federal Rules of Civil Procedure, Rule 50(a), 28 U.S.C.A. § 2680 Carroll v. County of Monroe, 712 F.3d 649 (2d Cir. 2013).
16U.S. v. Ramirez, 523 U.S. 65, 118 S. Ct. 992, 140 L. Ed. 2d 191 (1998).
17State v. Tweed, 62 Or. App. 711, 663 P.2d 38 (1983).
18Clark v. Fiske, No. SA–05–CA–0485–FB, slip. op. at *3, 2005 WL 3617731 (W.D.Tex.2005).
19See Collins v. City Harker Heights, 503 U.S. 115, 112 S. Ct. 1061, 117 L.Ed.2d 261 (1992).
20See Alton v. Manufacturers And Merchants Mutual Insurance Company, 416 Mass. 611, 624 N.E.2d 545 (1993).
Please cite as:
John M. (Jack) Collins, “Civil Rights Liability for Damaging Property during Warrant Executions,” Chief’s Counsel, The Police Chief 81 (June 2014): 16–17.