Hamen v. Hamlin Cnty.

• Decision Date: 10 February 2021
• Docket Number: #28671
• Citation: 955 N.W.2d 336
• Parties: Gareth HAMEN and Sharla Hamen, Plaintiffs and Appellees, v. HAMLIN COUNTY, South Dakota, Chad Schlotterbeck, Hamlin County Sheriff, and Sheriff's Deputies John Doe and John Roe, et al., individually (names unknown), Defendants and Appellants.
• Court: South Dakota Supreme Court

955 N.W.2d 336

Gareth HAMEN and Sharla Hamen, Plaintiffs and Appellees,

v.HAMLIN COUNTY, South Dakota, Chad Schlotterbeck, Hamlin County Sheriff, and Sheriff's Deputies John Doe and John Roe, et al., individually (names unknown), Defendants and Appellants.

#28671

Supreme Court of South Dakota.

ARGUED SEPTEMBER 30, 2019

OPINION FILED February 10, 2021

DAVID R. STRAIT of Austin, Hinderaker, Hopper, Strait & Benson LLP, Watertown, South Dakota, Attorneys for plaintiffs and appellees.

JAMES E. MOORE, JOEL E. ENGEL III of Woods, Fuller, Shultz & Smith, P.C., Sioux Falls, South Dakota, Attorneys for defendants and appellants.

JENSEN, Chief Justice

[¶1.] Gareth and Sharla Hamen (the Hamens) filed a complaint against Hamlin County (the County), the Hamlin County Sheriff Chad Schlotterbeck (the Sheriff), and other John Doe deputies after the Hamens’ mobile home was damaged during the arrest of their son, Gary Hamen. The Hamens sought compensation for inverse condemnation and stated a separate claim for deprivation of constitutional rights under 42 U.S.C. § 1983. The parties filed cross-motions for summary judgment. The circuit court granted summary judgment to the County, dismissing the claims without prejudice, but denied the other motions. We granted the petition for discretionary appeal filed by the County and the Sheriff. We reverse the circuit court's denial of summary judgment on the inverse condemnation claim. We affirm in part and reverse in part the circuit court's denial of summary judgment on the § 1983 claim.

Background

[¶2.] On June 9, 2016, at about 11:30 a.m., the Sheriff and Watertown Police Detective Chad Stahl stopped at Gareth Hamen's residence near Castlewood, South Dakota. They were looking for Gareth's son, Gary, who had outstanding arrest warrants for felony burglary and misdemeanor violations of a protection order. Police reports indicated that earlier that morning Gary had threatened to shoot himself and anyone he came into contact with. The Sheriff asked Gareth if Gary owned any guns. Gareth told him that he knew Gary owned a few, but he had never seen them.

[¶3.] Gary called Gareth while law enforcement was still at Gareth's house. The officers could overhear the conversation. Gary asked Gareth to pick him up because law enforcement was looking for him, and he stated that he needed a car to go to Canada or Mexico. Gareth did not tell Gary that the officers were present. Gareth asked Gary where he was, and Gary replied he was at Gareth's mobile home. The Hamens purchased the mobile home in 1997 for their daughter to live in, but later decided to fix it up and rent it out. It was located about 600 feet northwest of Gareth's house. Gareth allowed Gary to live in the mobile home when Gary was not working.

[¶4.] After learning of Gary's location, the Sheriff and Detective Stahl left Gareth's residence and went to the Sioux Rural Water Plant, approximately 1/2 mile south and 1/2 mile west of the mobile home. From their location, the officers observed Gary leave the mobile home but then walk back inside. At this time, the Sheriff requested assistance from the Watertown Police Department SWAT Team.

[¶5.] Sergeant Kirk Ellis arrived with the Watertown SWAT team and set up a loose perimeter around the mobile home. However, law enforcement was unable to monitor all four sides of the mobile home. A drone was procured early in the search to survey the mobile home and the surrounding area, but the drone footage revealed no sign of Gary. Officers then tightened the perimeter around the mobile home and blocked the surrounding access roads. Sergeant Ellis parked an armored vehicle about forty yards from the residence and attempted to contact Gary through a PA system. There was no response.

[¶6.] While the SWAT team attempted to contact Gary, officers received a report that a local resident had observed Gary running towards Castlewood. The resident reported that Gary came out of a tree line near a river and sewage pond, but he had run back into the trees. Sergeant Ellis and the SWAT team tried to locate Gary in this area and encountered another witness who also believed he had seen Gary. An officer inside the armored vehicle called Gary's cellphone. Gary answered the phone call and claimed he was almost to Minnesota. He sounded out of breath, like he was running.

[¶7.] Meanwhile, the Sheriff spoke with Gary's brother-in-law, Tim Hofwalt. Tim was married to Gary's sister, Julie Hofwalt. They lived on a farm within view of the mobile home. Tim reported that Gary, who appeared to be high, was at their home the previous night, and Tim gave Gary some food. Julie was sleeping while Gary was at the home. Tim told the Sheriff that Gary had a gun in a holster under his arm, but Tim did not see any other guns. After seeing the gun, Tim asked Gary to leave; and Gary obliged. During Tim's conversation with law enforcement, Tim claimed that he overheard voices on radio traffic stating that the mobile home had been cleared and that Gary was seen running near the river.

[¶8.] The Sheriff shared the information from Tim with the other law enforcement officers. The Sheriff also requested assistance from the Codington County Special Response Team (SRT) and Highway Patrol to further secure the area and ensure Gary did not make it to Castlewood. Then the Sheriff spoke with Gary's sister, Julie. Julie told law enforcement that she did not know that Gary had been to her home the previous night because she was asleep and had left early for work in the morning.

[¶9.] The SRT arrived, led by Codington County Sheriff Toby Wishard. The SRT brought in a second armored vehicle to clear the shelterbelt in search of Gary. During the search, the SRT located a suitcase containing male clothes, a bag with needles, a cell phone, and an empty gun case. Wishard and the Sheriff believed that the suitcase confirmed that Gary was armed and possibly using illegal substances. They agreed that the mobile home needed to be cleared to ensure Gary was not in it.

[¶10.] Before clearing the mobile home, Wishard and the SRT met Julie at her residence. The officers conducted a search of Julie's house and outbuildings for Gary. The officers were unable to access one padlocked outbuilding. Julie stated the officers "were calm and respectful and did not damage anything during the search." Julie told an officer that Gary was likely hiding in the willows west of Gareth's house, where he liked to hide and play as a child. Following the search of the farm, an officer told Gareth that they were going to enter the mobile home, but they did not state their intention to remove doors and windows with the armored vehicles. Law enforcement did not ask Gareth for consent to enter the mobile home.

[¶11.] Meanwhile, Troy Jurrens, who ran a business from his home nearby, was listening to the transmissions of law enforcement on a police scanner as they attempted to locate Gary. He stated: "someone announced on the radio that they were ‘going back to the trailer,’ " to which another voice responded, "he's not in the trailer." Troy claimed, "The first voice answered back saying they were going back anyway."

[¶12.] 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. 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.

[¶13.] The Hamens filed a complaint against the County, the Sheriff, and other John Doe deputies for inverse condemnation under article VI, § 13 of the South Dakota Constitution and a claim under 42 U.S.C. § 1983 for violations of rights under the Fourth and Fourteenth Amendments of the United States Constitution. The Hamens claimed that the damage caused by the armored vehicles totaled $18,778.61.

[¶14.] The County and the Sheriff moved for summary judgment on both claims. The Hamens filed a cross-motion for summary judgment. Following a hearing, the circuit court granted summary judgment to the County. The court concluded there was nothing to establish that there was an official policy or custom on the part of the County approving or condoning the damage to the mobile home, and thus the County could not be liable. However, the court determined that genuine issues of material fact existed concerning the § 1983 claims against the Sheriff. In its memorandum decision, the court wrote that article VI, § 13 of the South Dakota Constitution may also support a claim for a constitutional violation as a basis for the § 1983 claim, but the court did not directly address the Hamens’ separate claim for inverse condemnation. The court also denied the Hamens’ cross-motion for summary judgment. The County and the Sheriff petitioned for discretionary appeal, which we granted. They raise two issues, restated as follows:

1. Whether damage caused by law enforcement during the arrest of an alleged fleeing felon is a compensable taking under article VI, § 13 of the South Dakota Constitution.

2. Whether the Sheriff was entitled to qualified immunity on the Hamens’ § 1983 claim.

Standard of Review

[¶15.] We review a grant or denial of summary judgment de novo. Thornton v. City of Rapid City , 2005 S.D. 15, ¶ 4, 692...