In the land of the free, the job of police officer has morphed drastically over the last three decades. Thanks to the war on drugs, cops have MRAPs, battering ram vehicles, and an entire arsenal of weaponry designed to destroy homes in raids looking for drugs. Because police are human and prone to error, often times these weapons of war are used on entirely innocent people. Because police are government, when they destroy private property by mistake, or lay waste to someone’s dream home, it is the innocent person left holding the bag — thanks largely in part to qualified immunity.
In this latest 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 had called his father, Gareth Hamen, and asked for a vehicle. He was spotted by a police drone who was listening in on the conversation and was outside of his father’s home.
When police went to arrest Gary, they claimed he was holed up in his father’s home so the local SWAT team took to completely destroying the home. The home was empty and multiple officers on the scene knew it, police did not get consent to enter it, and police never mentioned to Gareth they were planning on destroying the home.
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.
The Federalist Society details what happened next.
Witness reports and drone footage indicated that Gary was no longer in the mobile home, and had been seen walking in the nearby river. Immediately before entering the home, the officers were made aware of these reports. Regardless, the sheriff authorized both units to raid the mobile home on the chance Gary was still there. The sheriff did so without requesting Gareth’s permission and without a warrant. During the raid, the officers used armored vehicles to ram through the mobile home’s windows and its front and back doors, damaging the walls and the septic system. Gareth estimated that the damage caused by the raid totaled $18,778.61.
“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,” the police report read.
Because the destruction of the Hamens’ home was completely uncalled for — since police knew before they destroyed it that Gary was not in it — Gareth filed a lawsuit to receive just compensation for his losses.
Under Article VI, Section 13 of the South Dakota state constitution, the law requires payment of “just compensation” when the private property is “taken for public use, or damaged.”
Unfortunately for Gareth, however, there is nothing in the law which states government must repair property it destroys during botched SWAT raids. So, Gareth had to fight his case all the way to the State Supreme Court of South Dakota only to find out they would rule against him.
“[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,” the court wrote in their decision.
The court went on to admit there were two egregious violations of the constitution during the raid:
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.
However, thanks to qualified immunity, there was no clearly established right of Gareth to not have his home destroyed by a SWAT team, so police and the city were not liable, according to the court.
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.
This is the problem with qualified immunity and why it needs to end, now.
Sadly, Gareth’s case is not at all isolated. Just last September, Erika Pruiett in Denver had her home destroyed by SWAT. At the end of the raid, she and her baby were left homeless with no compensation.
As TFTP previously reported, a married couple claimed Fresno sheriff’s officers destroyed their house by using it as a training ground for a teargas-wielding SWAT team, 50 vehicles, two helicopters, a K-9 unit and a fire truck — because an unarmed homeless man had been found in their closet. Like Gareth, after attempting to seek compensation for their incredible loss for over 3 years, the Jessens were told last year that they can kick rocks, the government who destroyed their home, owes them jack squat.