Imagine a swat team raids a house,
battering doors, breaking windows, and coating everything inside
with tear gas residue.
Now imagine the swat team had the wrong
address.
Who do you think would pay for the
damage?
If you said insurance, you're probably off.
If you said the city, you're probably also
wrong.
I'm Kim Nor of the nonprofit of law
Liberties law firm, the institute for Justice.
Joined by c host Keith Feel, and I
attorneys, Jeff Red, and Dylan Mo
Today, they'll talk with us about this nightmare
situation facing homeowners across America and how the
institute for justice is far fighting to change
it.
This is beyond the brief.
Fighting
So Jeff, 1 of the people that experienced
this is Vicki Baker in Texas this. Can
you tell us a bit about that?
Sure. So Vicki Baker's story is pretty typical
for these swat cases. This
she's our first client who we lit a
swap case on behalf of all the way
up from the trial court.
Our our first walk case was 1 that
we took over on appeal.
So she owned this house in,
Mckinney, Texas.
It's a suburb north of Dallas and was
on the market. She was relocating to Montana,
and it was actually under contract. She was
gonna close in, like, a week.
Her daughter was at the house kinda of
finishing up a few last things.
When
a fugitive showed up at her door.
Now she had heard on the news that
this guy was on the run from the
police, and she knew who he was because
he had been a handyman man at their
house, like a year previously.
And he must have known that it was
on the market or something and figured it
was gonna be empty.
He had a 15 year old girl in
tow,
and,
Vicky daughter said, oh, I've gotta run to
the grocery store sure. You guys can hang
out here for a bit. Pretended she didn't
know that there was anything wrong, and then
they called the police.
Well, the Mckinney police showed up with the
swat team. They surrounded the entire house.
Pretty quickly,
the fugitive let the the 15 year old
girl loose,
but he refused to come out. So, eventually,
the Mc mckinney swat team assaulted the house.
They blew up the garage door, like, literally
with explosives,
They knocked down the fence. They use these,
these bear cats.
Would you like tanks? Right? Yeah. They're they're
basically like tanks.
And then they
absolutely saturated the whole thing with tear gas,
like over 60 canisters.
And I didn't know this until I was
doing these swap cases, but it turns out
that tear gas is, like,
unbelievably destructive. Like it's non lethal, but it
it basically gets into anything Por and destroys
it. So, like, drywall wall carpet, flooring, all
of the personal property in the house,
pretty much had to be torn out and
thrown out.
And that was over 60000 dollars worth of
damage even when she was, like, half moved
out.
They turns out when they went into the
house, the fugitive had killed himself
at sometime prior, g
So the house is trashed. Obviously, the sale
doesn't go through,
and it turns out the city won't pay
her. They say, you know, our our police
officers, acted lawful,
so there's nothing you can do.
Her insurance company said,
your policy has an exclusion for acts of
government authority,
and most people don't know this, but this
is actually really common almost every insurance policy
excludes damage done by the government.
So
our client, Vicky was, like, totally out of
luck. She thought that she was gonna have
to, you know,
get money out of her retirement accounts to
try to cover this and repair it.
So is... What happened to Vicki
exceptional how common is this sort of situation?
Nationwide I think it's pretty common.
We hear about a situation like this where
it's an innocent owner,
and the swat team trash the property.
Probably every few weeks,
On the other hand, I don't think it's
super common on, like, a
municipality by municipality basis.
Most of the time when we hear about
these, It's like the... First time something like
this has happened in 10 years in a
particular city.
So I think that there are a lot
of affected people nationwide, but I don't think
it's so common that
this is something that cities can't afford to
pay for.
So what happened?
With Vicki
specifically.
Well, it was a bit of a legal
roller coaster.
So initially,
we sued...
The city of Mckinney Federal Court, and we
argued that the destruction of her house of
her property,
it was lawful, but it was a taking.
Just like if the government took your house
with eminent in a domain to build, a,
a road or a school or a jail,
they destroyed her property,
for
public use to get a dangerous criminal off
the street.
And,
the federal trial court actually agreed with us.
It said this is a taking under the
fifth amendment said that some other
decisions by other courts had been poorly reason
on this issue.
And we ended up getting about 60000 dollars
in a jury trial for her.
But then we went up on appeal to
the fifth circuit, and
that verdict got reversed
it was a surprising ruling because
the
court of appeals basically said that everything the
town had been arguing for getting this verdict
overturned was wrong.
But... It sounds like we win. Right. Right.
That's normally... It works on appeal, especially when
you are the Apple, normally, they say that
you're you know, you can, win on any
ground.
So... But the court came up with a
different reason that we should lose. It basically
said that there's this implied exception.
To the,
fifth amendments just compensation clause. For government actions
that are,
necessary is the word that they used. Where
where does that come from? Because when when
you look at the text of the taking
clause, You know, it it says Nor shell
private property be taken for public use without
just compensation, it doesn't say comma accepted if
the police are doing their job or except
in cases of the police power. So what
was the basis for reading in this implied
exception.
Well, the the fifth circuit reasoning, basically,
it was it was based on a lot
of common law cases.
So there is this defense of necessity to
the to of Tres.
So at common law, let's say, like, you're
caught in a blizzard.
And
there's a convenient barn there that you could
shelter in. So you you break down the
door and you take shelter inside. That's private
necessity.
You're allowed to do it and you're not
a tres pass, though you do have to
compensate them for the damage you cause, because
it's better that you... Your life be saved
than that someone's lock not be broken.
Similarly, if there's, like, a fire raging through
town.
And you
tear down some houses to create a fire
break, and you save the town,
you're not a tres,
and you can't be held liable for tearing
down those few houses. What you as a
private person can tear down other people's. Houses
for, like, a fire prevention.
You can. That's that's an old common law
defensive of necessity, but it has to be...
It has to actually be necessary. Just to
avert this greater good. It's sort of, like,
it's like the Trolley problem in towards.
And because
you make that decision yourself. You're taking a
big risk. If you're wrong, you could be
held liable.
The other famous example is, like, throwing cargo
overboard, a storm to save the ship so
that it won't sync.
You're allowed to do it, but
you know, so you're... You are not personally
a tres or even though you've destroyed someone
else property in order to save a larger
number of people. Well, what the court did
was it looked at these old cases, and
then it basically said it's This is just
like what the government's is doing here. It
was necessary to to damage this property in
order to
you know, promote the greater good.
The problem is that all of those old
necessity cases are about the private to of
necessity. And will about paying? Right? Like, if
you said if you break the lock, you
have to pay for the lock, but you're
not a tres. Well, that's that's in cases
of private necessity because you got the benefit
of it. In cases of public necessity,
you're generally out of luck. If it's just
a private person that destroyed your property for
the public good.
Oh, so if I tear down people's houses
to prevent a fire,
I don't have to pay them for those
houses if it's deemed
necessary. That's that's the old common law rule.
But there are also cases that the fifth
circuit didn't
look at, didn't see maybe because this issue
was never briefed.
Where federal courts actually said in the nineteenth
century,
you know, if the officer, the the government
officer
takes your property and it's necessary, destroys your
property and it's necessary. He's not a tres,
and he can't be held liable.
But the government has to make the property
owner whole. Sure. So courts have actually distinguished
between this this private court defense, and the
government's
obligation to provide just compensation. Because the whole
idea of the just compensation clauses is that
we're taking
these these benefits
or sorry, we're taking these burdens which are
public and sharing them across the entire public.
We're not forcing some random individuals to
to bear these public burdens.
1 of the examples we use in these
cases, we always say that you know, this
damage is just 1 of the costs of
law enforcement and that making Vicki Baker pay
for it is is like having a lottery
to determine who pays, like, the police. Chief
salary.
Sure. Yeah. So the individual officers that did
this aren't liable, but the city is liable
because this is part of the city's general,
you know, police
force. Exactly. And and this is something that
comes up when
government lawyers they always wanna talk about
deter and and the idea that, well, you
know, police officers in the moment, they're gonna
hesitate, and they might not do the thing
that they have to do if they're worried
about
the cost of this.
Obviously, in our immunity, accountability cases, this comes
up all the time. Because in those cases,
we really are usually suing the individual officer,
even though everyone knows that at the end
of the day they're gonna be ind. Well
in this case, we don't even have to
deal with that fiction because the individual officers
are not theirs defendants. There's no way they
could be held liable, Like, the defendant here
was the city of Mckinney.
And 1 of the things that we've come
across is that actually more often than not
the police officers,
they think that these property owners are gonna
be compensated. Like Vicki Baker was given a
card by the police officers or hurt. Rather
her daughter was given a card by these
police officers and they said, look, call this
number, they'll take care of you. They'll fix
everything up. They assumed that this damage would
be covered by the city.
And I actually think that the deter angle
might really go the other way because if
if police officers are people of goodwill, I
think it's just is plausible that they would
hesitate
to cause this damage in in the course
of their duties. If they knew that doing
so would visit financial ruin on innocent people.
Like, they don't want Vicki Baker's house to
be trashed. Of course. Recourse. And so so
Vicki thought she was gonna be compensated. The
officers thought she was gonna be comp. Say
that the trial court agreed she should be
compensated,
and then the fifth circuit said for reasons
that no one's talked about, and that no
one's briefed, we're gonna cut the other way,
say what happened after that? Well,
we filed a l brief, but it pointed
out that for 1 thing, none of this
was brief for, and, you know, the principle
of party presentation says that you're not supposed
to be deciding cases
on a basis that no 1 ever argued
with with, you know, some exceptions like jurisdiction.
For
so we didn't have a chance to brief
it, and then we explained how they were
getting all the history wrong. They missed ton
of material that goes the other way, and
they even... Even 1 of the key cases
that they cited actually said the opposite of
of what they thought it said. So there
were a lot of errors in the decision.
The fifth circuit called for response, and then
it sat for about 4 months. Ultimately, they
denied the petition by a 6 to 11
vote.
Which is pretty good as then bank goes
because, you know, that indicates that the 6
probably think we're right, but just because someone
votes against in bank doesn't mean they think
the panel's right. Like, end bank is a
really high bar.
So a lot of judges will will look
at a petition and say, well, it looks
like they might have made a mistake. Here,
but I I don't quite think this is
worth our time, and we only do a
handful of bank cases a year.
And then we got a great descent from
denial of re recurring in bank
that largely agreed with our arguments.
So we're gonna petition the Supreme Court for
review.
And,
You know, I think that having having 6
votes for in bank and a really good
descent is a pretty good platform for that,
so we'll see how it goes.
What happened with with Vicki, you know, maybe
we can argue about, you know, wasn't even
reasonable for them to, you know, use a
tank on our house and throw 60 tier
grenades in it and and whenever, I think
we all have potentially about that. But it
at least it was the right house. And
the guy they were looking for was actually
in there.
That's not the case always. So
what are some examples of... You know, it
doesn't feel like it can get even worse,
but there are even worse examples. So... Yeah.
It does get worse. So we actually have
another case in the fifth circuit that came
from just outside Dallas in a town called
Lancaster, Texas.
In this case,
a
swat team commander was hoping to lead his
swat team to bust a methamphetamine stash house.
So he knew basically everything that there was
to know about this house.
Obviously, he knew the address. But he also
knew exactly how the house looked. He knew
that it had a perimeter fence and a
detached garage that 3 swat team members were
supposed to raid. He knew the color of
the house and he knew... Had stairs leading
up to its front door.
But when this
swat commander, his name was Mike Lewis. Went
to lead his swat team to this house.
They all gathered on a front porch, and
then Lewis realized, oh, this isn't the right
place.
The right place was on his left.
A house of innocent people was on his
right.
But Lewis for some reason seemingly just looked
to his left looked to his right and
guest.
And instead of directing his officers to the
stash house that he knew the address of
and knew what it looked like. He ordered
them to raid a completely innocent family's home.
And so our client Karen Emerson owned that
home.
And the swat team did what's called a
break and rake. So they busted down the
door, they threw a flash bang grenade on
the front s.
And they shattered all the windows, raining glass
over her Karen and her sleeping family.
And these 2 houses look completely different, They
look completely different and there are a few
reasons why that anybody you don't have to
be, you know, a sophisticated swat team leader
to realize the differences between these 2 houses.
So the the correct house had
a perimeter fence, It had a detached garage.
And maybe most glaring, Karen's house had an
impossible to miss
wheelchair ramp.
It should not. Bags across the. There's 2
exits. 1 goes to the driveway and 1
goes to the front path, and the officers
had to clam up this wheelchair ramp to
bust down the front door. They had every
reason to know that it shouldn't have been
there. So you you you you'd think at
some point. Right? These officers are are walking
up the ramp that they would think to
themselves,
this isn't on the briefing. How how are
we... Here why are we moving forward with
this, but these officers did none of that.
They just proceeded right ahead? They they proceeded
right ahead and I would imagine from the
individual officers perspective, they were probably just following
the orders of the commander, even though, you
know, they also had reason to know that
this wasn't the right place.
But really, it it's astounding to me that
the the Swat team commander could watch his
officers,
clam up the wheelchair ramp that was not
supposed to be there to break, open windows
and bust down a door, especially when.
Karen's house had the address numbers right next
to the front door,
and
officer, Lewis knew what the correct houses numbers
were, but he he even admitted that he
didn't really bother to look.
I mean, he already double checked once. We
can't ask him to double check a second
time. Well, and that makes it even worse
because when... The Swat team first lined up
and prepared to raid the wrong house.
Officer, Lewis should have been on notice that
they were at risk of going to the
wrong place. And if anything, that should make
you more careful.
So so what happens in the... We took
this case over. Right? And... Right. So what
did the court
decide already. Right. We took this case over
after the fifth circuit had already issued an
opinion,
and we filed an on ban petition that's
still pending right now. So basically, what the
court said was sure. This violated the fourth
amendment. And officer, Lewis actually conceded that... Ordering
this raid on a house full of innocent
people violated the fourth amendment.
But the court still said that he was
entitled to qualified immunity, which I think anybody
listening to this podcast
knows is something that we run into quite
a lot. So even though the law was
violated.
The fifth circuit said that it wasn't clearly
established.
That the law was violated.
And really that boils down to a complete
misread of Supreme Court precedent and Fit circuit
precedent. There's a case from the eighties
called Maryland versus garrison where
police wanted to... Before you go down that
rabbit hole. Mh.
I I... Just to to distinguish this case
from the Vicki Baker case. Yeah. Here we're
suing the individual officers?
True. Are we suing the town as well,
just to kind of give... Listeners a sense
of who this suit is against. Short. So
this lawsuit is just against the officer who
ordered the raid. Other officers and the town
had been parties to the lawsuit before we
got involved, but they had been dismissed, and
by the time we got in on it,
it was just the Gym sense against Mike
Lewis, the the swat commander. And so that's
the reason we're talking about qualified immunity here,
but not baker. Right. Because this is just
a suit against the individual who ordered the
raid.
Gotcha. So the the fifth circuit granted qualified
immunity,
and it sounds like they probably mis misspelled
the law. You were about to talk about,
I think a case.
What what case did they miss?
Short. So the Fifth circuit missed its own
precedent, but also kind of mis
Supreme Court precedent.
There's a case called Maryland versus Garrison from
the eighties, where the police wanted to execute
a search warrant at an apartment,
and
This apartment was located on the third floor
of an apartment complex,
and the cops were trying to figure out
if there was 1 or 2 apartments on
the third floor of this complex.
So they did a bunch of research. They
talked to the utility company. They talked to
the local police.
They talked to neighbors, and they did some
site visits to try and figure out. You
know, is there 1 or 2. And at
the end of all of this, like, reasonable
good faith investigation, they just couldn't have known
that there were actually 2 apartments.
When they stormed in, they actually
entered the wrong apartment, but it was a
reasonable mistake because after all of the due
diligence, they just had no way of knowing.
So So the Supreme Court said this doesn't
actually violate the fourth amendment because they put
in a lot of work into finding out
the place that they were supposed to execute
the search warrant. But there was no way
for them to know that that there were
actually 2 apartments in this building.
That's not at all like, what's going on
here. I mean, officer Lewis knew everything there
is to know about the right house that
he was supposed to raid. He had pictures
of it. He had the warrant on hand,
and and the houses all had their addresses
clearly marked. I mean it would have taken
about 5 seconds for him to make sure
that he was directing his officers to the
right place.
We expect more from pizza delivery drivers and
girl scouts and plumbers than
the fit circuit expected of Mike Lewis.
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dot org slash monthly. So is this just
a,
you know, fifth circuit
problem. Does the fifth circuit not know what
it's doing like that can't be what's going
on here, but sort of, you know, seeing
these examples next to each. It just sort
of feels like,
what's going on over there in Texas? It
does seem to be a fifth circuit problem
in 4 other circuits,
a claim like this could go forward. And
just to reiterate, this a qualified immunity.
Like, this case has been dismissed without actually
getting into the heart of the case.
So the fifth circuit is basically just said,
you know, lieutenant Lewis can't be sued for
this at all. We're not even gonna go
past this. But in 4 other circuits, and
I think under that garrison case,
it should be the case in all other
circuits. These claims could at least proceed beyond
qualified immunity and sort of get into the
merit.
So it seems like we have sort of
2 different kinds of cases going on here.
I mean, these are 2 of, you know,
probably half a dozen I cases about these
swat things at this point.
And, you know, some of them involve
hey, the police
completely messed up in ways that are very,
very obvious and, you know, maybe that's those
individuals fault.
And then we have these cases sort of
like, baker where, you know, they had the
right house. They had the right guy. They
were doing, you know, the things that they're
supposed to do,
and it, you know, sort of falls to
the... It the issue isn't
what they did. It's just that, you know,
now the city has to pay them for
the fact that this this happened. So kind
of going back to that that second 1,
how do you get a city to pay
for things?
Well, you know, it... It's funny because as
we started to track these cases and I
have people reaching out to me on a
pretty regular basis telling me about...
Incidents like this.
What we found is actually more often than
not, the city does pay
and no lawsuit has to be filed.
Oftentimes there's a bit of foot dragging, and
then they realize, okay. Like, you really were
innocent.
You know, why don't we send us the
receipts and we'll make sure that it's reasonable,
but we'll... We're gonna make you whole.
And I don't know whether these cities think
that there acquired to under the law or
they just think that it's the right thing
to do.
I think most people have the instinct that
that's the right thing to do.
So I think it is a minority of
cases where people
are just out of luck and have to
resort to the courts.
If they can find a lawyer. You know,
we we do this, but a lot of
lawyers are not gonna take a case where
the legal claim itself is unsettled.
You know, they'll take something where the the
framework is very clear and then they can
try to extract a settlement.
But there's not... There's a lot of effort
involved in lit
a cutting edge
constitutional case where the precedent isn't an
entirely clear cut,
and that just you know, eats into your
profits if you're if you're trying to make
a living as a a lawyer doing small
damages claims. And it's tough because if you
wanna bring a civil rights suit against a
city. You have to do someone under a
case called Mon.
And
to win under Mon, you have to show
that the city had an official policy or
custom.
That led to the constitutional deprivation. And so
it can be really, really difficult to prove
those things.
I was about to ask, how do you
prove a policy or custom in this context?
I mean, do do you point to a
document where the city says we have a
policy of violating your constitutional rights? I don't
think many city officials would put that down
in writing? So how how on Earth do
you build a record to demonstrate that what
the city is doing is pursuant to some
policy or custom.
Well, before, actually, you answer that to add
to that question, is it that they have
a policy or practice of, you know, using
tanks and 60 tear grenades on your house
or that they have a policy and practice
of not paying you after that happens.
Well, so for taking claims, we've argued that
it's the latter.
I don't think it's a real problem either
way because ultimately,
they're defending their actions by saying the police
did everything exactly the way they're supposed to.
So it's hard to say that's not a
policy.
But the the constitutional violation in a taking
claim.
It's not the taking of property. The government
is allowed to take your profits. The not.
Right. And it's it's very hard to say
that we don't have a policy of not
paying these claims when your city attorney is
in court. Arguing. We don't wanna pay this
claim. Right. Yeah. You're you're doing the thing.
Right exactly. Okay. Okay. Sorry. I didn't mean
to interrupt your question. Oh, no. I, I
think we're we're kind of halfway through answering
it then. So it sounds like with taking
claims at least,
it's it's maybe a little bit easier to
prove the existence of a policy because often,
the attorneys in court are advancing that policy
when they're trying to object to to paying
your client, In the context of a a
fourth amendment claim,
I I know in in the lancaster case
that we're pursuing a suit against the officer,
not against the municipality. But what sort of
evidence would we have had to uncover to
trace that constitutional violation in lancaster
to an official policy of the of the
municipality.
I think there it would probably be something
like a failure to train claim.
Which those are kind of an evident beneficiary
uphill battle, but you can hold cities accountable
and and liable.
If you show that they aren't training their
officers to respect people's
constitutional rights. So I think it would probably
be something along those lines because, I mean,
to be honest,
it's sort of you won't find a smoking
gun of, like, we train our officers under
our policy
specifically to ignore the fourth amendment. Right. I
think it'll be more like, well,
the city just didn't brief them up as
much as they should have. And, of course,
to to show that if I'm remembering correctly,
you have to show that the right was
kind of obvious enough that that the city
was being deliberately and indifferent to it by
failing to train the officer, and then it
kinda sounds like we're almost back ending our
way into qualified immunity again because you have
to be able to show that, hey, this
violation was so obvious that it was gonna
happen that the city should have trained its
officers accordingly.
It it almost sounds like at a certain
point, Mon dovetail tails back into qualified immunity.
It's really frustrating, and that's something that we're
trying to fight back against in several of
our cases, but it is hard
when qualified immunity keeps popping up in places
where it doesn't pull on.
And manila, I mean, you're kind of hinting
at this, but this problem, it isn't just
going on in swat raids sort of cases.
Right? At what other context does that come
up in?
Mon can come up in pretty much any
constitutional torque case
I think that it
it is most logical
in cases where
you have lower ranking people who might be
going rogue. I mean, the basic idea of
it is that
municipalities are not supposed to be strictly liable
for the to committed by their employees.
But it has become, you know,
almost the
like a parody of that where
unless
violations are, like, actively caused by a mustache
t, like mayor who's, like, telling people to
do things,
then you can't hold
municipalities is liable. And I I think the
the the weak version of Mon
is not crazy to me. The idea that,
you know, they're... If if someone goes totally
rogue,
that's not the government. That's a government employee
who did something insane.
And, like, acting outside of whatever his capacity
is supposed to Yeah.
Stories about, like, a police officer who's off
duty who puts on his uniform and goes
and and beats up his ex girlfriend's
boyfriend or something.
You know, that seems like pretty far afield
from government action even though he might have,
like, used his government tools.
But, you know, it it has become something
so much more powerful. Where basically,
it's very, very easy for government to say,
well, this this wasn't something that we caused
to happen
directly intentionally.
But more often than not It is some
version of a failure to train. It's it's
negligence. It's
it's a hands off approach
with, you know, real ind to what the
constitution requires. And I I think particularly in
the context of of people like police off
who are dealing with the general public every
day in
in context
where lots of constitutional rights are relevant.
I think it it absolutely should be incumbent
on municipalities to make sure that they are
very, very well. Trained. And I wanna pause
here to emphasize the difference between
municipalities and their liability for their employees versus
the private sector. Which is held to a
a much stricter standard in the sense that,
you know, of course, by curious liability exists
when AAA
delivery driver knocks over your mailbox,
you sue the company. Right? You don't sue
the individual driver, and the law says that
the company is generally liable for the towards
of their employees.
But when it comes to the government and
when it comes to constitutional violations, Mon
establishes this
stricter
higher bar that's much harder for plaintiffs to
prove. Is there any way to make sense
of that besides we're just gonna treat the
government better than we treat private companies? I
mean, I think I I think I gave
probably the the best defensive of it, which
is that
it...
The the
constitution restricts state action And at some point,
there... There's gotta be a bar at which
someone who happens to hold a government office
is doing something, but they're not really exercising
state power. They have gone totally rogue.
And I think, you know, we we should
give remedies to those people anyway.
But I I at least understand the logic
of saying that it's not a constitutional violation
when it's not truly government power being exercised.
But if it's somebody just acting, you know,
in the course of their
employment. Mh. And they cause harm to somebody
else. It doesn't make a lot of sense
to me that we couldn't go to essentially
their boss
and hold the boss liable in the same
way we do for private companies. I do
think it's really government favor.
Yeah. I mean, it seems to me, like,
you know, whether I'm acting as a government
official whether I'm acting. You know, poorly and
malicious religiously and, you know, as this rogue
agent or whether I'm just, you know, doing
my job the way I'm supposed to or
whether I'm just kind of, you know, minding
my own business and something happens.
It feels like the government should have to
pay for that. Somebody made an analogy the
other day of, you know, if you're just
walking through target and your coat brushes up
against a ace or something. You have to
pay for that vase the same way that
you would if you were walking through targets,
smashing faces intentionally. Right? And and so
it seems like that same principle should apply
to the government, and, you know, it's maybe
an uphill battle to to make that reality
happen in court. Yeah. It's definitely an uphill
battle, but I think it's important to just
emphasize how
harmful this is to the individuals who suffer
at the hands of... Whether you wanna call
it government and incompetence,
or individual officer,
malicious ness, or in the case of Vicki
Baker, the government doing arguably everything that it
should have done, but still leaving the homeowner
with the bag.
These are individual people and not like knocking
something over at Target where that's a large
company that can sort of eat the loss.
I mean, losing your entire home,
or losing large features of your home as
it's destroyed by a swat raid. And then
just being left, totally up the river on
that
really destabilize families and makes it a lot
harder for them to just go about their
day to day lives or trust government or
other people.
So what is the solution? To making people
whole when the government violates their rights. And
specifically, you know, destroys their homes, destroys their
stuff, you know, up ends their lives.
I think at the very least if you
break it, you buy it.
And and then we can have further conversations
about things like, you know, the effects of
the trauma of being rated or or
how that might affect you and your family.
But just at a bare minimum. If government
agents
in the course of their job, whether they're
acting correctly or ne,
break the possessions of innocent owners. They need
to be paid back.
So so how do we actually get there?
I mean, we've talked about some of these
cases and we're trying to do this in
court and, you know, the deck is... Very
much stacked against us in a lot of
ways, but we're getting there. Keith, I know
that you're also working on, you know, not
to turn you from C
interviewing. Don't mind. But you're working also on
some legislative things. That's right. So, you know,
as always at I j, you know, we
we we try to lit case is to
win them. We try to to change the
law through litigation, but we also recognize that
legislative fixes are important. And so we've developed
model legislation called tis protecting everyone's constitutional rights
act, Pe for short because acronyms are important.
We all know that.
And what Pe says is we're gonna create
a state cause of action. And it's going
to mirror section 19 83. It's gonna hold
the state liable when its officers commit constitutional
violations.
But we're going to explicitly hold the government
liable. We're not gonna be holding individual officers
liable.
And so it's basically a state's way of...
Saying, you know, we can't fix section 19
83. That's a federal statute interpreted by federal
courts, but what we can do is we
can open the state courthouse stores.
And so Pet is our way of giving
states, perhaps the best way to do that.
And we've seen some success early in states
like New Mexico.
That have adopted,
very similar language,
and the the results that we're starting to
see there are positive. Right? I mean, we're
we're seeing,
state government behaving in a way that that
essentially recognizes that there's now a system of
accountability in place. And so, you know, the
more states that can buy into that. The
more states that can adopt Pe and other
models of legislation. You know, the more opportunities,
victims of this kind of abuse are going
to have,
because as as both Jeff, and Dylan have
shown, Like, right now, we're we're kind of
in a a tough spot with the courts.
It's hard to win these types of cases.
And so these these kinds of state legislative
fixes I think are gonna be, you know,
1 of the most concrete ways that we
can move the ball forward here over the
next few years. But... Yeah. So it... You
know, that can sound a little bleak on
the court side even though it's optimistic on
the list It's meant to be. I promise.
But we are still optimistic about these cases
that we're bringing and and we're bringing them
even beyond Texas. So, you know, why should
we... Feel optimistic about what's happening in the
courts now. Yeah. So I think on the
fourth amendment front specifically. There are 4 circuits
who have taken the Gary. Garrison case, I
was talking about a little bit earlier seriously
and said that qualified immunity doesn't protect officers
when they have every reason to know that
they're ordering a raid on the wrong house.
But even more broadly,
it's important to get these cases up in
front of the Supreme Court sometime soon so
that we can at least have some clarity
about what... Plaintiffs in under federal law, cannon
can't bring claims for. So we have cases
in south Bend, Santa Monica. It's not just
Texas.
Even though we do have a lot of
cases in Texas, but our mission is sort
of to get 1 of these cases, multiple
of these cases in front of the supreme
Court, so that there can be some final
about what exactly
is protected and and how far can the
police go before they have to start answering
for what they've done.
Right. It... It's not even that we need
to get
Overrule, though would be great if we could.
It's just that we need to get,
the the crazier
interpretations of Mon overrule.
There are cases that apply In a way
that is not totally crazy.
Even if it's not a precedent that we
love and a lot more cases could go
forward under those precedent.
In the fifth amendment, the swat taking context,
I think there are a lot of reasons
to be optimistic,
there really aren't that many precedence out there,
and, significantly,
even though we've lost a few cases. We're
not losing them in the same way. Like,
every time we have a new case, the
new court disagrees with the previous court and
comes up with a different reason. And then
we have to explain why that reason is
also wrong. But eventually, they're gonna run out
of reasons for us to lose these.
I think it's also significant that Texas and
Minnesota, as a matter of of their own
state constitutional law already require compensation for claims
like these.
So it it really demonstrates that, the rule
that we're asking for is entirely workable and
hasn't caused, major problems.
So I I think that, you know, if
if the case goes to the Supreme Court,
I I think we
absolutely win. I think the question is just
getting it there. And getting a really clean
split.
But no 1 has come up with a
really persuasive reason why under a, a normal
understanding of the fifth amendment, those claims shouldn't
go forward. Yeah. It seems like courts are
kind of... They kind of reflex understand what's
right. What's happening here isn't right, and they
just kind of need.
To show up all the holes around it
so that they can get to the right
answer. Yeah. I mean, there... There's this version
of of the the old,
judicial conservative
who,
every time they see a constitutional claim. They
think that their job is a good job
is to reject it unless there's a case
on point that absolutely ties their hands and
forces them to accept it.
So, you know, we've run up against a
few of those judges
but, you know, I'm I'm hopeful that we
will eventually exhaust
their endurance.
Sounds great. Well, thank you so much, guys
for joining us today. Thank you.
Thanks for watching today's episode. We got a
lot of great comments in our last episode,
so let's dive in and respond to a
few.
Tay za day of chocolate rain fame writes,
it's astounding that items criminal disappeared in the
process of inventory them for alleged crimes. Well,
that's exactly right, Tay. At every stage of
the rate on Us private vault from planning
to executing and documenting the seizure and ins
forfeit proceedings
the Fbi's failure to comply with the constitution
is truly astounding.
You might even say it's enough to make
Angels cry and shake their heads in shame.
And if you don't get that last reference,
do yourself a favor in Google chocolate reign
to check out ta immortal
contribution to viral Internet videos. Thanks for watching
Tae.
F leonard writes, c grandma stuffing her mattress
with cash. Wasn't so crazy after all.
Maybe tempur pe needs to think about using
a new slogan. Great sleep, even better protection
against Fbi rates.
Ko the third rights, Steve Let brought this
case in many others to my attention. He
has took a strong supporter of the Institute
for Justice, and I donate them as much
as possible.
They are 1 of the few
organizations that fights for the little guy.
Thanks for your support K.
We're big fans of Steve Let work too,
and we appreciate all the attention he helps
bring to our cases.
On issues like forfeit, it's important to talk
about what's happening and why it matters.
Because far too often, the government gets away
with abusing people's rights when they do it
quietly, and discreet.
Voices like Steve Le helps to bring these
issues to light and we're so glad that
he led you to us.
Rex Parker writes why can't the Fbi be
charged with crimes and send people to prison.
Why can't the Fbi just be soon for
damages above?
Returning property and charged punitive if they don't
return that property.
That's a great question, Rex, and the answer
it a little complicated.
Contrary to what you might see in movies
and Tv shows, victims of crimes don't always
get to decide whether to press charges against
the people who harm them.
Instead, those decisions are made by state and
federal prosecutors.
And because those prosecutors work along as side
the government officials who harmed you, they're considerably
less likely to bring charges against them when
they do.
The result, most government officials who violate people's
rights in a way that violates criminal law
don't get charged, much less convicted.
And the reason that it's difficult to sue
the Fbi for monetary and punitive damages is
because of a doctrine called sovereign immunity, which
draws its name from the idea that the
sovereign king can do no wrong.
Sovereign immunity effectively says that you don't get
to sue the government for damages
unless it expressly allows you to do so.
And as you might guess, the government doesn't
do that all that often.
And that's why suits against individual officers and
you the legal doctrines like qualified immunity that
prevent them are so important.
They're often the only way for a victim
of government abuse to be
or made whole for past misconduct.
That's why I j fights so hard to
convince courts and legislature to in qualified immunity
and give faith everyone the chance they deserve
to vin their rights.
Bad man 20 99 rights, I got a
question, doesn't asset forfeit law violate up part
of the fourteenth amendment where it says that
you can't be denied your property without due
process.
Thank goodness you're here, bad man You're absolutely
right that 1 of the biggest problems with
civil asset forfeit is that it violates due
process,
often in more than 1 way.
Sometimes, the government will seize property and hold
on it for months before property owners give
an opportunity to can test that in court.
Other time, the government won't give property owners
any idea of why they took the property
in the first place, making it difficult if
not impossible for the owner to figure out
the best way to get their property back.
Some other times, government has financial incentive to
forfeit property
because the law allows the government to keep
the proceeds.
We think all of this violates due process,
which is why we at I are always
trying to bring new case it is challenging
the different ways that government tries to forfeit
property
without following the constitution. With your help, we
hope to 1 day put an into it
is
Maria Mango writes, why is carrying cash in
itself a crime?
Well, carrying cash isn't a crime? Which is
why the government's decision to seize forfeit is
so problematic.
Most of our cases involve people who are
traveling with cash and who are stopped, by
Tsa agents, border patrol or even sheriff and
have their money seized.
The government claims that it's because carrying large
amounts of cash can indicate that a person
is involved in certain illicit activity. Usually drug
dealing.
But lots of people carry cash for yearly
lawful reasons.
Past I client, kermit warren flew with cash
from New Orleans to Ohio to buy a
new tow truck for his business this. But
Ohio Dea officials stopped kermit and seized his
money, claiming that he was using it to
buy drugs.
That's when I stepped in and helped kermit
get his money back.
Traveling with cash isn't illegal, and it's not
a reason for government and officials to stop
and harass law abiding citizens
much less, try and take their hard earned
money.
Well, that's All today, thanks again for watching
and make sure to subscribe and tune in
to our next episode.