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Ninth Circuit:
Destruction of Portions of Home by SWAT Team Justified
Panel Says Use of Chemicals, Breaking in Was Reasonable in Light of Belief Armed Robber Was Inside
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday affirmed a judgment in favor of members of the Riverside County Sheriff’s Department SWAT team who, armed with a search warrant but not an arrest warrant, bombarded a house with chemicals and caused physical harm to it, believing that the owner’s son, suspected of eight robberies, was inside the home.
Qualified immunity shielded the deputies, a memorandum opinion declares. Signing it were Judges Daniel Aaron Bress, Kenneth Kiyul Lee, and Johnnie B. Rawlinson.
The opinion agrees with the April 7 determination by District Court Judge Jesus G. Bernal of the Central District of California, in granting summary judgment in favor of the SWAT team members, that the property destruction was reasonable under the circumstances.
Allegations of Pleading
Plaintiff Oleg Varlitskiy contended in the operative pleading, seeking recompense for the damage:
“In violation of Plaintiff’s constitutional rights, Defendants had caused a forced entry and/or forced entry, by bulldozing walls and using other unnecessary destructive acts, into Plaintiff’s home…Defendants, acting outside the scope of the search warrant and in violation of the California Penal Code, bombed the home…with tear gas and other toxic materials, tore down walls and dry wall throughout the home, and destroyed Plaintiff’s personal property and home, rendering it uninhabitable. Plaintiff found parts of his home burned and charred, with hazardous material left behind.”
Two sheriff’s deputies had seen the plaintiff’s son, suspect Aleksandr Varlitskiy, enter the garage of the home at 1:20 p.m. on Oct. 24, 2018, and, according to testimony, it was believed he was in the home. The SWAT team arrived at about 3 p.m.
Aleksandr Varlitskiy was not found in the home when the SWAT team entered and was later arrested at a park.
One sergeant explained:
“If we had entered the house without first using chemical agents, and if the suspect were in the attic and armed with the gun used in the armed robberies, there was a significant risk to the deputies of being shot.”
Bernal’s Ruling
Bernal—who earlier granted judgment in favor of the county and deputies who were not members of the SWAT—said in declaring the SWAT defendants immune from liability:
“Plaintiff seeks to prove that SWAT Defendants deployed seven-and-a-half times the acceptable amount of chemical munitions….Aside from the SWAT Defendants’ potentially excessive use of chemical munitions, however, they did not appear to engage in other unnecessarily destructive behavior.”
He continued:
“Plaintiff does not allege, for instance, that SWAT Defendants damaged his house because they thought doing so would be ‘cool.’ Plaintiff has not shown that SWAT Defendants crushed or smashed furniture too small to hide a human body, tore open cushions and pillows, smashed doors and mirrors, obliterated toilets, or stomped on personal property. Crucially, there is no evidence that SWAT Defendants or their use of chemical munitions started the fire, which caused much of the damage to Plaintiff’s house.”
Oral Argument
But, Oleg Varlitskiy’s lawyer, Lisa J. Damiani insisted during oral argument in Pasadena on March 28, there was no need for causing the destruction of the home. She told the panel:
“They destroyed the doors, they broke every window, they put holes in stucco. They deployed a ridiculous amount of contaminated chemicals…in the home, rendering it uninhabitable.”
She argued that the search warrant—which authorized looking for loot taken in the course of robberies—“specifically did not include a search and seizure of a person.”
Lee queried:
“How are they going to execute the search warrant if there’s somebody dangerous inside?”
Damiani responded that they should have phoned the bench officer who issued the search warrant to expand its scope. She contended:
“The intent of all these officers was clear. They all said, ‘We want to go in there and arrest Aleksandr.”
Ninth Circuit Opinion
The panel said in yesterday’s opinion:
“Although the SWAT officers destroyed portions of plaintiff’s property during the siege, given the potential threat the SWAT officers faced in executing the search warrant, the countervailing governmental interests at stake justified these actions….
“Plaintiff argues that officers acted excessively because their purpose was to arrest the plaintiffs son and they lacked an arrest warrant, but no clearly established law precluded the officers in this situation from ensuring that the home was safe for their entry during the execution of a valid search warrant.”
The judges added that the plaintiff did not carry his burden of showing that tear gas caused the fire because there was also evidence that the son had set it.
They said Bernal properly awarded judgment to the deputies who were not part of the SWAT team for the same reasons and also because once that team arrived, their role was minimal, adding:
“[T]he deputies’ failure to intervene is not grounds for liability when plaintiff has failed to show that the officers were involved in the SWAT operation such that they had an opportunity to intervene….Nor did deputies have supervisory authority over SWAT.”
The case is Varlitskiy v. Campos, 23-55426.
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