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Following up on Are there any remedies for abusive or insulting behavior by agents executing a search warrant? the more subtle question needs the following elaboration:

My impression is that as far as the law is concerned there is no such tort as "maliciously making a mess" or "unnecessarily desecrating an individual or his property" in the course of a LEO's official duties. But to any individual subject to such abuse the difference between a respectful and malicious search may be life-shattering.

To make it more salient let's consider a search warrant for some small amount of drugs issued on a residence. Suppose the owner of the residence claims to be a devout Muslim and keeps a Koran in a prominent place. He notes that the book is holy to him and asks the agents executing the warrant to don gloves before touching it.

  1. A respectful searcher would comply with the request, putting on gloves before inspecting the book, and replacing it when done.
  2. An indifferent searcher would rifle the book bare-handed and, perhaps, toss it aside hurriedly.
  3. A malicious searcher might say, "Muslim, huh? Well let me finish my bacon sandwich before I handle that." He smears the pages with bacon grease, then throws the book on the ground and goes out of his way to trample it every time he walks by.

Is the law indifferent to the three scenarios?

Update: Because religion might have special protection under the law, here is a non-religious example: I collect Legos and have spent thousands of hours building an enormous Lego city in my basement. Here are the three alternatives in this scenario:

  1. To inspect every concealable space the respectful searcher separates the structures to look inside, and then locks them back together.
  2. The indifferent searcher pulls apart every structure as much as necessary to expose their internal spaces. Because he exercises no exceptional care in how he breaks things it will take scores of hours to rebuild the city.
  3. The malicious searcher brings a hammer and begins smashing the Legos with glee. He frequently turns to the owner and asks things like, "So, you still don't want to tell me where the drugs are? This Lego airport is next!" The blocks are so broken that to restore the property the collector/builder would have to start from scratch. Meanwhile, the searcher shrugs off the destruction saying, "Something could have been concealed in those little dimples in each block, so I had to break them all to be sure."

Update: The Lego example, third scenario, consists of destruction of property so might be more appropriate to the first question. Since the purpose of this question is to focus on the "insult" piece here is another example: A retired cop recently claimed that he observed fellow officers, "Pissing and shitting inside suspects homes during raids, on their beds and clothes." Obviously the property damage from that misbehavior is not worth suing over. But one would hope that there is some adequate remedy at law for such gratuitously abusive and insulting behavior.

Further update: Andrew notes that this last example is just plain vandalism. So let's walk it back a bit into the grey area where police in particular seem to run unrestrained: Suppose the police throw all the resident's clothes on the floor, walk through some spilled staining agents, and then stomp through the clothes repeatedly. If they are called to account for it they say, "Oh, gee, sorry, we didn't notice the spilled dye, or the clothes on the floor. Our job is to search, not to take care of peoples' property."

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    Religion is a special case, because persons are protected from religious discrimination under state and federal civil rights laws. If you could come up with a non-religious example, it would probably be helpful. – chapka May 28 '15 at 17:56
  • Great Question! – Digital fire May 28 '15 at 18:13
  • @chapka - I added a secular example. However does insulting a religious practice or belief as described in the first example actually run afoul of any U.S. law? It's not "discriminatory" as I understand the term, but rather "opportunistically malicious." In the eyes of the law couldn't one replace it with any cultural sensitivity, like, "It is insulting to enter a house without removing one's shoes (or, per my previous question, at least donning booties)." – feetwet May 28 '15 at 18:16
  • Given the non-religious example, I'm not sure how this differs from the previous question. – chapka May 28 '15 at 18:37
  • @chapka: The answer may be the same; if so please just copy and paste the first part of your answer to the previous. I elaborated here because I believe, to the average observer, at least the third case of each example represents a violation of fundamental, constitutional and natural rights. If the law states that those rights are adequately respected or nullified by a valid warrant, even in such egregious examples, then that's noteworthy. – feetwet May 28 '15 at 18:47
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The officers could incur liability under 28 U.S.C. 2680 (h) with jurisdiction under 28 U.S.C. 1346 (b). This would probably be considered "loss of property" or a "wrongful act".

It is very rare for cases to go forward for this because of the costs of litigation against an officer.

"[I]t is well recognized that ‘officers executing search warrants on occasion must damage property in order to perform their duty.’" Cody v. Mello, 59 F.3d 13, 16 (2d Cir. 1995) (quoting Dalia v. United States, 441 U.S. 238, 258 (1979)). “Before any due process liability can be imposed for property damage occurring in a lawful search, it must be established that the police acted unreasonably or maliciously in bringing about the damage.” Cody, 59 F.3d at 16.

That actually means that the burden of proof is on the victim to show unreasonableness / maliciousness.

It would probably be easier if the thing destroyed could not possibly have contained the item looked for. For instance, if they are looking for a 65" LED TV, they can't even look in a 64" dresser (or something smaller than the object that could not physically hold the object). This issue becomes moot when dealing with drugs.

  • Oh, I am assuming insult = destruction of property = tearing down my lego playhouse – Andrew Jun 27 '15 at 5:20
  • Yes, I just updated the question with another example of "insult" that does not create enough damage to justify suing. However this is an excellent answer for the question that focuses on unnecessary damage. – feetwet Jun 27 '15 at 14:47

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