Tag: police accountability

A federal court yesterday heard arguments in an appeal concerning an area of law that, while niche, has seen a streak of similarly situated plaintiffs pile up in recent years. At stake: When a SWAT team destroys an innocent person’s property, should the owner be strapped with the bill?

There is what I would consider a commonsense answer to that question. But in a reminder that common sense does not always guide law and policy, that is not the answer reached by several courts across the U.S., where such victims are sometimes told that “police powers” provide an exception to the Constitution’s promise to give just compensation when the government usurps property for public use.

It remains to be seen where the U.S. Court of Appeals for the 6th Circuit will fall as it evaluates the complaint from Mollie and Michael Slaybaugh, who are reportedly on the hook for over $70,000 after a SWAT team destroyed much of their home in Smyrna, Tennessee.

In January 2022, Mollie Slaybaugh stepped outside her house and was greeted by a police officer with his gun drawn. She was informed that her adult son, James Jackson Conn—who did not live with her but had recently arrived to visit—was wanted for questioning concerning the murder of a police officer, which she says was news to her. Although she offered to speak to Conn and bring him out of her house, law enforcement declined to permit that, or to let her re-enter at all, so she went to stay at her daughter’s house nearby.

The next day, police broke down the door and launched dozens of tear gas grenades into the Slaybaughs’ home, laying waste to nearly everything in the house. Their insurance declined to assist them, as their policy—like many policies—does not cover damage caused by the government. Yet both Smyrna and Rutherford County said they were immune from helping as well.

But despite Mollie Slaybaugh’s offer to coax Conn out sans tear gas, her complaint does not dispute that it was in the best interest of the community for law enforcement to do as they did that day. It merely contests the government’s claim that innocent property owners should have to bear the financial burden by themselves when police destroy their homes in pursuit of a suspect.

“Law enforcement is a public good. Through our taxes, we pay for the training, equipment, and salaries of police officers. We pay to incarcerate criminals. We pay for a court system and public defenders,” reads her complaint. “When the police destroy private property in the course of enforcing the criminal laws, that is simply another cost of law enforcement. Forcing random, innocent individuals to shoulder that cost alone would be as fair as conducting a lottery to determine who has to pay the police chief’s salary each year.”

That hypothetical is absurd. And yet the spirit of it is at the heart of several court decisions on the matter. That includes the U.S. District Court for the Middle District of Tennessee, which ruled last year that the Slaybaughs were not entitled to a payout because, in the court’s view, the Takings Clause of the Fifth Amendment does not apply when the state seizes and destroys someone’s property in the exercise of “police powers.”

The Slaybaughs are unfortunately not alone. The notion that “police powers” immunize the government from liability is what doomed Leo Lech’s lawsuit, which he filed after a SWAT team did so much damage to his home—in pursuit of a suspect that broke in and had no relation to the family—that it had to be demolished. In 2020, the Supreme Court declined to hear the case.

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Conservatives who are leery of government power in other contexts often have a blind spot when it comes to police officers. Tough-on-crime instincts, coupled with anger at left-wing critics of police practices, frequently translate into a reflexive “back the blue” stance that is inconsistent with limited government, civil liberties, and the rule of law. Donald Trump’s promise to “restore law and order” by indemnifying police officers “against any and all liability” appeals to that sentiment, even as it underestimates the difficulty of successfully suing police officers and overlooks the fact that cops already are routinely indemnified against damages when plaintiffs manage to overcome the barrier created by qualified immunity.

Qualified immunity bars federal civil rights claims unless they allege misconduct that violated “clearly established” law. A new Institute for Justice (I.J.) report on the consequences of that doctrine further complicates the conventional conservative narrative by debunking the assumption that qualified immunity mainly applies to allegations of police brutality.

In an analysis of 5,526 appeals involving qualified immunity that federal circuit courts heard from 2010 through 2020, I.J. researchers found that half involved lawsuits against other kinds of government officials, including “mayors and city managers, university and school officials, prosecutors and judges, and child protective services workers.” The report reinforces the complaint that qualified immunity frustrates meritorious claims of constitutional violations and casts doubt on the belief that it mitigates the burden of litigation for defendants.

“While police were the most common defendants, fully half of appeals featured other types of government officials, either alongside or instead of police,” data scientist Jason Tiezzi, I.J. deputy litigation director Robert McNamara, and I.J. attorney Elyse Smith Pohl report. “Prison officials made up the next largest share, but in more than one in five of all appeals, or 21%, defendants were neither police nor prison officials.”

Many of the appeals involved claims of excessive force (27 percent) or false arrest (25 percent). But nearly a fifth (18 percent) “encompassed violations of First Amendment rights, including speech, association, and religious liberty.” In total, “only 23% of appeals fit the popular conception of police accused of excessive force.”

What do the other cases look like? Based on a representative sample of 125 First Amendment cases, Tiezzi et al. found that three-fifths “involved plaintiffs alleging premeditated abuse by government officials in retaliation for protected First Amendment activity.” Nearly half involved government workers who “alleged retaliation from their superiors,” while nearly a third were filed by private citizens who “claimed they were targeted for retaliation by government officials.”

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