WA Legal Roundup
Two new opinions out of the WA Supreme Court today. Well, technically its five opinions, but only two are the majority ;)
If you're like me, you sympathize with the plight of the common drug dealer. I mean, think about it. You're sitting at home in your trailer, checking the ammonia levels, making sure the valve isn't so blued as to break, checking your supply of coffee filters and batteries, and making sure that you have proper ventilation so you don't accidentally asphyxiate. All of a sudden, these random hooligans dressed in black vests break in your door, darned near taking it off the hinges. I mean, are they going to pay for you to bring the meth trailer repair guy out? Nooooooooooooooooooooo.
But you can't blame a guy for trying. And try he did, from the very beginning. The court, within the statement of facts, relates his cartoonish attempt at avoiding capture:
When the SRT arrived at the property in marked vehicles and wearing police uniforms, James Brutsche ran from an outdoor area into the mobile home and attempted to barricade himself and another suspect in the home by placing a dowel in the sliding glass door.
Unluckily for Brutsche, the police did not simply turn away. Though, if they had, it might have sounded like this:
Drats! We ALMOST had him! Okay boys, we live again to fight another day. We'll get him, we just have to keep the faith! Damned dowels and their sliding glass door trickery! If only we had some sort of tool that could get past such a device, or possibly break glass.
Maybe this conversation did happen. It would have been followed up by a meek rookie raising his hand. "Sarge...what if...what if we use a baton, or some sort of battering ram?"
Seizing onto the rookie's plan, the boys in blue, or black, or some fashionable combination of the two, decided not just to break through the sliding glass door that was giving them trouble, but several other locked doors as well. Brutsche, however, claims that some doors were unlocked, and the Police were liable for negligent destruction of his finely appointed mobile living unit's door jambs. The majority disagreed:
"In executing a search warrant, officers of the law should do no unnecessary damage to the property to be examined, and should so conduct the search as to do the least damage to the property consistent with a thorough investigation." The court said that "[i]t was for the jury to say whether or not [the officers] had, in searching appellants' property, unnecessarily damaged the same, and thereby rendered themselves liable to appellants."
. . .
As the comment explains, the type of conduct giving rise to liability under section 214(1) can be either intentional or negligent misconduct, but the action itself is a trespass action.
. . .
Under these facts, reasonable minds could not differ. The officers did not engage in unreasonable conduct in exercising their privilege to be on the property. We hold that the trial court properly granted summary judgment on the trespass claim.
Oh, and the court also adopted Rest. 2d Torts s. 214 in its entirety. Finally, the court rejected a claim by Brutsche that the destruction was a taking, turning to and affirming its prior decision in Eggleston.
In re Personal Restraint of Bush
Okay, maybe that's a slight exaggeration, but it got your attention. Essentially, this case can be broken down as follows:
- Guy receives conditional commutation for assault
- Guy assaults a child
- Governor revokes commutation
The question before the court was whether the revocation of the commutation was subject to due process. The court held that due process requirements do attach under Morrissey v. Brewer, 408 U.S. 471, 480, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972); Gagnon v. Scarpelli, 411 U.S. 778, 781-82, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973), but that a petitioner must show prejudice, which he had not shown:
This court has no indication that a hearing in compliance with due process mandates would have changed the conclusion that Bush committed a gross misdemeanor. Because Bush has not made a prima facie showing that he was actually and substantially prejudiced by the lack of due process, we must dismiss his procedural due process claim under the Reismiller rule.
I can see this case coming back under different circumstances, such as a nolo contendre, plea bargain, or even a not guilty verdict.
The dissent, authored by Justice Chambers, would have held that a complete failure to provide due process is per se prejudicial.
How about you?