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Thread: Hey folks, can I get an opinion on this?

  1. #41
    Modding this sack of shit BehindBlueI's's Avatar
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    Quote Originally Posted by olstyn View Post
    I am not a lawyer or a LEO, so I'm definitely way outside of my lane here and just trying to learn, so please don't take this question as critical. How is disabling a vehicle not a seizure? It makes an expensive and tangible piece of property unusable by its owner for its normal purpose. From my non-lawyer, non-LEO perspective, that sounds a whole lot like a seizure, but perhaps I'm just not understanding the legal definition of that term...?
    Maybe a lawyer could make a different argument, but under how I was taught and trained they at least seized the tires. It materially interfered with the use of the tires as intended, and would therefore be a seizure. Note that if they are liable is a different question, and honestly if it's a seizure or not is really not the most important question in that regard. The case law I'm familiar with on damaging property is almost entirely in the context of serving a search warrant, probably because that's where the question usually comes up. It's always been held to be a reasonableness standard under the 4th amendment even if not considered a seizure (cutting holes in dry wall may not be a "seizure" of the wall, but still must be reasonable).
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  2. #42
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    Quote Originally Posted by BehindBlueI's View Post
    Maybe a lawyer could make a different argument, but under how I was taught and trained they at least seized the tires. It materially interfered with the use of the tires as intended, and would therefore be a seizure. Note that if they are liable is a different question, and honestly if it's a seizure or not is really not the most important question in that regard. The case law I'm familiar with on damaging property is almost entirely in the context of serving a search warrant, probably because that's where the question usually comes up. It's always been held to be a reasonableness standard under the 4th amendment even if not considered a seizure (cutting holes in dry wall may not be a "seizure" of the wall, but still must be reasonable).
    Sounds like your LEO understanding lines up pretty closely with my civilian understanding. I'm curious to see what response john c will have when/if he replies.

  3. #43
    Quote Originally Posted by olstyn View Post
    Sounds like your LEO understanding lines up pretty closely with my civilian understanding. I'm curious to see what response john c will have when/if he replies.
    I'm not a lawyer, nor do I play one on TV. BBI and I are in different circuit courts, which will mean potentially different rules relating to the law, based on differing court decisions that aren't decided by the Supreme Court. Also, BBI has many, many more years on the street than me. I'm definitely in the one year of experience many times over category.

    I think we're conflating a couple of intertwined issues here: takings clause, 4th amendment seizures, and qualified immunity.

    If you look at the takings clause, it protects a persons property against being taken for public use without just compensation. There's no prohibition against any public official taking anything, as long as it was for a public purpose. In this case, the government pays. Damages are limited under the takings clause, because the possibilities are so broad, and just compensation must be paid. Reasonableness comes in to play in that the taking must be tailored to the public use. This is why, in my original response was that in the worst case, the city pays for the damages. Overall, the intrusion was minimal in that only the tires were destroyed.

    4th amendment seizures, on the other hand, involve seizing persons or property in which jeopardy in involved. Basically, it can be used against you in court. The rules are stricter, for this reason. Basically an officer needs a warrant, or the items need to be in plain view, or in one of the many exceptions. The wikipedia article on the 4th amendment covers this pretty thoroughly. This is where probable cause comes into play, whether for a warrant or in plain view. I think, in the original case, that the probable cause was weak, more like reasonable suspicion.

    The final issue is qualified immunity. This is the remedy the persons who have had their property taken or seized are due. The standards here are the lowest. Basically, unless there's a bright line that was reasonably known to the officers, they're not liable. Nor is the city liable. This is where I think the case we're discussing is on solid ground. The courts appear to have set the bar very high for plaintiffs to claim damages from officers or cities for takings cases. See the various articles that I linked to. Officers can make houses of third parties unlivable in the course of trying to make an arrest. One case involved an arrest warrant; the other on a (I believe) warrantless arrest. So I think it's likely that a court would issue a summary judgment in favor of the officers and commanders involved in this case.

  4. #44
    Quote Originally Posted by Cyberpunk1981 View Post
    John C since you feel it is reasonable, lets go further with what is reasonable. Had the police gone into a gun store and start destroying firearms inside the store as a preventative measure, would that be reasonable? Or if they destroyed property inside stores because some of the items in the store could be used to harm them or protestors? Chemicals, firearms, sporting goods, knives, or whatever. Would that have been reasonable?
    I wanted to add in my reading to clarify my positions taken in preceding posts, I came across an interesting distinction in case law relating to your scenario. The courts make a large distinction between personal property and business property. Personal property has a much higher threshold for taking versus other property. Business property has much less protection, so it would make your scenario more plausible. Basically business property is just money in another form. If the government takes it, they just convert it back into money by paying you for it. Personal property, by its very nature, is less likely to be converted back into money. I'm not advocating this in any way, but the case law does open the door to this sort of taking.

    Here's the article from Harvard professor of law: https://scholar.harvard.edu/jsinger/...sonal-property

    Here's the quote: "Breyer noted that the takings clause does not prohibit takings; it just requires just compensation when property is taken for public use. There was therefore a question of whether compliance with the government's mandate would have resulted in just compensation being paid and if so it is not clear why a constitutional violation occurred since the obligation is to compensate not to refrain from taking."

    Outside of the 2nd amendment issue, which is wide open, it's very clear that the government needs only the thinnest public use to take property. There is case law on changing zoning laws to prohibit AirBnB use, etc. Or your town government can build a park behind your house with the only access through your property and then take the easement for park-goers to cross your property to access the park. You don't get a choice in the matter. In the case of your business property (AirBnB rental) being shut down, there's no compensation. In the case of your property now having an easement where any member of the public can trounce across your property, you get paid the fair market value of the easement. It's just money.

    Again, for business property, like gunstore inventory, it's only a money issue.

    A less charged example than a gunstore would be pool supply business. If some protester had tried to splash pool chemicals in an officer's eyes during a riot, I think there would be a reasonable chance of prevailing if commanders ordered officers to go to a pool supply business in the riot zone and destroy the pool chemicals. Not burn down the building, but maybe combine all the chemicals to neutralize them or another less intrusive method to remove the threat.

    Again, I'm not advocating any of these actions, just reporting what I've found, and interpreting it based on my (limited) knowledge and (limited) experience.

  5. #45
    Modding this sack of shit BehindBlueI's's Avatar
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    Quote Originally Posted by john c View Post
    I wanted to add in my reading to clarify my positions taken in preceding posts, I came across an interesting distinction in case law relating to your scenario. The courts make a large distinction between personal property and business property. Personal property has a much higher threshold for taking versus other property. Business property has much less protection, so it would make your scenario more plausible. Basically business property is just money in another form. If the government takes it, they just convert it back into money by paying you for it. Personal property, by its very nature, is less likely to be converted back into money. I'm not advocating this in any way, but the case law does open the door to this sort of taking.

    Here's the article from Harvard professor of law: https://scholar.harvard.edu/jsinger/...sonal-property
    I think that's more an eminent domain thing, taking property for public use, which has it's own set of rules and due process and probably isn't applicable to cops stabbing tires to disable cars.
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  6. #46
    Member olstyn's Avatar
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    Quote Originally Posted by john c View Post
    Overall, the intrusion was minimal in that only the tires were destroyed.
    I have to disagree on the intrusion being minimal. Outside of the financial impact, which has already been covered by others, the vehicle's owner's right to freedom of travel has been significantly impacted, and the pretense that it was done in order to prevent the vague possibility (not imminent, known threat) of the vehicle being used for nefarious purposes seems really thin to me.

  7. #47
    Quote Originally Posted by olstyn View Post
    I am not a lawyer or a LEO, so I'm definitely way outside of my lane here and just trying to learn, so please don't take this question as critical. How is disabling a vehicle not a seizure? It makes an expensive and tangible piece of property unusable by its owner for its normal purpose. From my non-lawyer, non-LEO perspective, that sounds a whole lot like a seizure, but perhaps I'm just not understanding the legal definition of that term...?
    I would agree with you on this point very much. It is not a seizure they are taking control of the property in the traditional sense but the moment they place their hand or equipment on it or in it I would argue they seized it. Just as an assault is usually a physical attack, touching someone with your hand in a way such as placing your hand on their shoulder is assault or battery in many places. The law does not necessarily use the traditional definitions in my experience. I am not a lawyer or LEO in any sense so I am speculating. I do believe though that the law probably has a legal definition that differs from the most traditional dictionary meaning.

  8. #48
    Quote Originally Posted by BehindBlueI's View Post
    I think that's more an eminent domain thing, taking property for public use, which has it's own set of rules and due process and probably isn't applicable to cops stabbing tires to disable cars.
    I disagree strongly on this one. Yes, most case law involves eminent domain and intellectual property, but a taking is a taking, no matter which part of the government does it.

    There's plenty of case law to support it.

    Regardless, I accept and respect your position on this, and realize that there is plenty of reasonable disagreement on the point. Plus your location, state law, agency policies, etc may influence how it's handled in your area.
    Last edited by john c; 06-28-2020 at 09:53 PM.

  9. #49
    Quote Originally Posted by olstyn View Post
    I have to disagree on the intrusion being minimal. Outside of the financial impact, which has already been covered by others, the vehicle's owner's right to freedom of travel has been significantly impacted, and the pretense that it was done in order to prevent the vague possibility (not imminent, known threat) of the vehicle being used for nefarious purposes seems really thin to me.
    I don't disagree with your point, which is why something like this could easily go to court for a decision. I think there are two very valid arguments, which is why we're having this discussion.

    I think the severity of the financial impact may be a regional thing. With respect to the freedom of travel, the whole takings aspect of it likely negates this. Freedom to travel isn't enshrined in the constitution, while the takings clause is included.

    I agree, the public use is thin, but again, the courts seem to go for these.

  10. #50
    This video which was posted in GD mentions specifically tire slashing by people in the neighborhood and also as a tactic employed by police although in a different scenario. At the 25 min mark.

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