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. Did you know, I j represent ordinary people, free of charge as they fight back against government abuse.
If you're looking for a rewarding way to support our work, consider becoming a member of our mary band of monthly donors, and stand shoulder to shoulder with I clients every month of the year. Multi donations are convenient and cost efficient, meaning more of your money goes directly to our fight for freedom and justice. Sign up to donate today at I j 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.