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Seattle—On Thursday, January 17, 2008, the Washington Supreme Court will hear a case that will decide whether the government must pay when it damages property owned by an innocent third party while executing a search warrant.  The case represents an important opportunity for the court to affirm that Washington’s constitution provides significant protections for private property.

The case began in 2003, when police staged a raid on property owned by Leo Brutsche in Kent.  Mr. Brutsche offered to let the officers into his property using his keys, but the officers decided to use a battering ram to enter various buildings.  The battering ram caused extensive damage to Mr. Brutsche’s doors and windows.  Mr. Brutsche was never charged with a crime and the police did not seize any evidence from his property.  Mr. Brutsche asked the city of Kent to compensate him for the damage it had done to his property.  Kent refused and Mr. Brutsche sued.  The trial court found that the city was not liable for the damage done to the property and the Court of Appeals affirmed.  Represented by John Muenster and Jerald Klein, Mr. Brutsche has appealed to the Washington Supreme Court, which will hear arguments in the case the morning of January 17.

“Under the Washington Constitution, when the government damages the property of an innocent third party for law enforcement purposes, it must pay that property owner just compensation for the damage,” said Michael Bindas, an attorney with the Institute for Justice Washington Chapter (IJ-WA), which filed a friend of the court brief in support of Mr. Brutsche in the case.  Bindas will argue part of the case to the court.  “Our constitution says that the government must pay just compensation not only when it takes property, but also when it ‘damages’ that property.”

IJ-WA Executive Director William Maurer said, “Washington’s constitution is very protective of private property—more so than the federal Constitution.  When the Framers of our state constitution wrote that the government must compensate property owners for damage done by the government, they meant what they said.  Mr. Brutsche is simply asking the court to follow the plain language of our constitution.”

Bindas noted that even if the government must compensate innocent property owners for damage done during the course of police work, this does not mean that the police would be prevented from doing their jobs.  “The police are constitutionally entitled to execute legitimate search warrants and nothing in this case calls that into question.  All the constitution requires is that the government compensate innocent property owners for any damage to their property when that property is not evidence.”

Maurer concluded, “One innocent property owner should not bear the entire burden of protecting the public.  If the police damage property to protect the public, both fairness and the constitution require that the public should compensate the owner of that property.”