Brutsche v. City of Kent
| Citation | 164 Wn.2d 664,193 P.3d 110 |
| Decision Date | 02 October 2008 |
| Docket Number | No. 79252-6.,79252-6. |
| Parties | Leo C. BRUTSCHE, Petitioner, v. CITY OF KENT, a Washington municipal corporation; and King County, a political subdivision of the State of Washington, Respondents. |
| Court | United States State Supreme Court of Washington |
John Rolfing Muenster, Muenster & Koenig, Jerald A. Klein, Attorney at Law, Seattle, WA, for Petitioner.
Chloethiel Woodard Deweese, Keller Rohrback LLP, Richard B. Jolley, Attorney at Law, Seattle, WA, for Respondents.
Sofia D'almeida Mabee, City of Yakima— Legal Dept., Yakima, WA, Daniel Brian Heid, City of Auburn, Auburn, WA, Amicus Curiae on behalf of Washington State Assoc. of Municipal Attorneys.
Jason C. Kinn, Danielson Harrigan Leyh & Tollefson, Nancy Lynn Talner, Attorney at Law, Sarah A. Dunne, ACLU, Seattle, WA, Amicus Curiae on behalf of American Civil Liberties.
William R. Maurer, Michael E. Bindas, Institute for Justice/WA State Chapter, Seattle, WA, Amicus Curiae on behalf of Institute for Justice Washington Chapter.
¶ 1 In executing a search warrant for a suspected methamphetamine lab on premises owned by petitioner Leo C. Brutsche, law enforcement officers using a battering ram to gain entry caused physical damage to doors and door jambs. Mr. Brutsche brought suit against the city of Kent (the City), among others, arguing that the officers had a duty to conduct the search so as to avoid unnecessary damage and do the least damage to the property consistent with a thorough investigation, that they breached this duty, and that the City is liable for the damage. The trial court granted summary judgment in favor of the City and the Court of Appeals affirmed the decision. We hold that although a trespass claim may be asserted against a city alleging that law enforcement officers exceed the scope of their lawful authority to enter property to execute a search warrant, summary judgment in this case was proper because as a matter of law the officers did not commit trespass as Mr. Brutsche contends. We also hold that summary judgment was properly granted with respect to Mr. Brutsche's claim that the damage to his property constituted a taking of private property for which the City must pay just compensation and decline to overrule Eggleston v. Pierce County, 148 Wash.2d 760, 64 P.3d 618 (2003).
¶ 2 On July 8, 2003, a King County District Court judge signed a search warrant authorizing the search of an abandoned warehouse, several outbuildings, eight semitrailers, and a mobile home on property in Kent owned by Mr. Brutsche. The warrant also authorized police to search James F. Brutsche (Leo Brutsche's son), locked containers, and numerous abandoned or disabled vehicles within the fenced boundary of the property. It authorized the seizure of controlled substances, including methamphetamine, as well as paraphernalia and equipment used in connection with the manufacture and distribution of methamphetamine and other specified items.
¶ 3 On July 10, 2003, the Valley Special Response Team (SRT), a multi-jurisdictional group of law enforcement officers from several South King County law enforcement jurisdictions, executed the search warrant. The SRT was called on to execute the warrant because of its training for special situations, including serving high risk warrants. The search warrant for Mr. Brutsche's property was considered to be high risk because "it involved a search for the manufacture of methamphetamines and the apprehension of subjects in the methamphetamine trade." Clerk's Papers (CP) at 44 (); see CP at 47 () (the SRT is used for executing warrants at high risk sites such as methamphetamine lab sites, which "are known to be dangerous and volatile and pose a significant risk to officer safety").
¶ 4 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. He ran from the SRT "despite an announcement, repeated three times over the loud speaker from one of the vehicles, that the police had arrived and had a search warrant." CP at 44 (Decl. of Majack).
¶ 5 The SRT "almost immediately" breached the glass door of the mobile home with a battering ram. Id. Officer Majack stated that this tactic was necessary because SRT did not know if James Brutsche was arming himself or rallying unaccounted-for individuals in the mobile home to engage police in a fight, and to minimize the likelihood that evidence was being destroyed. CP at 44-45; see CP at 47, 48 (Decl. of Villa) ("[m]ethamphetamine users are typically paranoid, will act in an irrational fashion, and are often armed to protect themselves from other criminals"). James Brutsche was combative and resistant, and officers used a "taser" to subdue him. CP at 45 (Decl. of Majack); CP at 49 (Decl. of Villa).
¶ 6 The SRT also decided it was necessary to enter other structures on the property immediately because they provided possible cover and concealment for unknown persons and to prevent possible destruction of evidence. Lieutenant Villa said that while the doors of some structures were unlocked several were locked and thus it was necessary to breach these doors with the battering ram. CP at 49 (Decl. of Villa). He stated that although he did not see Leo Brutsche at the scene, as the SRT commander he would not have permitted Mr. Brutsche access to the property during the search because
[a]s a matter of standard operating procedure, the SRT does not allow access in or out of a potential crime scene until a search has been completed. This procedure not only maintains the integrity of the potential crime scene, but also ensures the safety of innocent bystanders in a potentially high risk environment.
¶ 7 Mr. Brutsche maintains the destruction of many of his doors and door jams was unnecessary. He stated, CP at 89 (Certification of Leo C. Brutsche). Mr. Brutsche added that use of his keys would be quicker and quieter, making the entry safer for the officers, and would not damage the doors and door frames. Id. He said that he knew there were no illegal drugs or weapons on the property and offered to escort the officers at the time of the search because there were no genuine officer safety concerns or any illegal activities. Mr. Brutsche hired a carpenter to repair the doors and door jams damaged in the raid, at a cost of $4,921.51. The SRT did not seize any evidence.
¶ 8 Mr. Brutsche brought this action against King County and the City, asserting several claims, among them claims of trespass, negligence, and a taking of property without just compensation.2 In November 2004, the matter was transferred to arbitration. The parties stipulated to dismissal of King County, which settled with Mr. Brutsche prior to the arbitration hearing. The arbitrator awarded $2,400 to Mr. Brutsche, plus costs.
¶ 9 Mr. Brutsche moved for a trial de novo in superior court. The City moved for dismissal under CR 12(b)(6). This motion was denied. On June 24, 2005, the City moved for summary judgment. A month later the court granted this motion. The City also moved for an award of $27,124 in attorney fees under MAR 7.3 because Mr. Brutsche did not improve his position. On September 16, 2005, the court awarded the City attorney fees of $4,050.
¶ 10 Mr. Brutsche appealed; the City cross-appealed the amount of attorney fees. The Court of Appeals affirmed the grant of summary judgment but remanded on the attorney fee issue for development of a record for review. The Court of Appeals awarded the City attorney fees on appeal under MAR 7.3 because Mr. Brutsche appealed and again failed to improve his position. Brutsche v. City of Kent, noted at 134 Wash.App. 1002, 2006 WL 1980216, review granted, 160 Wash.2d 1017, 163 P.3d 793 (2007).
¶ 11 We limited review to Mr. Brutsche's common law negligence and trespass claims and his takings claims under the state and federal constitutions.
¶ 12 Summary judgment is reviewed de novo. Osborn v. Mason County, 157 Wash.2d 18, 22, 134 P.3d 197 (2006). Summary judgment is appropriate where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. CR 56(c). Evidence is construed in the light most favorable to the nonmoving party. Osborn, 157 Wash.2d at 22, 134 P.3d 197.
¶ 13 Mr. Brutsche maintains that pursuant to this court's decision in Goldsby v Stewart, 158 Wash. 39, 290 P. 422 (1930), the City is liable in negligence. In Goldsby, the court stated that law enforcement officers executing a search warrant have a duty to conduct a search in a reasonable manner and avoid unnecessary damage to property of innocent third parties. We agree that Goldsby is sound authority, but it is authority favoring Mr. Brutsche's trespass claim, not negligence.3
¶ 14 Under Goldsby, which has never been overruled, and the Restatement (Second) of Torts (1965), a city may be liable in trespass for unnecessary damage to property caused by its law enforcement officers executing a search warrant, on the theory that unreasonable damage to the property exceeds the privilege to be present on the property and search. In Goldsby, the plaintiffs owned a building and had rented the upper half to a tenant. Goldsby, 158 Wash. 39, 290 P. 422. Law enforcement personnel from Snohomish County and the city of Everett searched the upper...
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