By Nathan Solis | Courthouse News | April 9, 2020
The Jessen’s rural farm home in central California sat on a dead-end street, surrounded by almond orchards.
On June 11, 2016, David Jessen said while he was out, the Fresno County Sheriff’s Department called to tell him someone had broken into his home. Several hours later he would return to find his home destroyed after a SWAT team, two helicopters, a K-9 unit and a fire truck barreled toward his front lawn to arrest the burglar.
On Thursday, the Ninth Circuit upheld a ruling that Fresno County and the city of Clovis are not liable for negligence claimed by David and his wife Gretchen Jessen’s lawsuit, because the damage to their home was caused by the officer’s “discretionary acts.”
The Jessens claimed in their 2017 lawsuit that the Fresno County Sheriff’s Department and Clovis Police Department happened upon the ideal setting for a training exercise at their home when they received a call from a construction crew about a man who was found sleeping in a nearby vacant house.
The man left without any protest, but the construction workers say they heard the sound of glass breaking and say the man broke into the Jessen’s home, according to the civil complaint.
The lawsuit claimed the dead-end home was the perfect setting for a training exercise because there would be no nearby neighbors or civilians who would congregate to watch the SWAT team and helicopters converge.
David Jessen said after he arrived at his home and told an officer that two unloaded shotguns and a loaded .357 magnum were hidden in the house, the officer told him the man inside threatened to shoot anyone who entered. Jessen and his family were asked to wait elsewhere.
After taking his family to a friend’s house 10 minutes away, Jessen drove back to unload some farm equipment and found law enforcement cars lining the road to his house for a quarter of a mile, plus two ambulances, a fire truck and two helicopters circling above.
This use of police force would eventually destroy the home, according to the complaint. Jessen said just before police cleared out, an officer handed him a card and said, “We have insurance for this.”
Police ripped out several wrought iron doors, according to the complaint, and pulled out a wall off the foundation, teargased six rooms, shattered a glass sliding door, broke several windows and 90 feet of fencing and flash-bombed two more rooms.
The Jessens say the man, identified later as Chanley Un, stole an ice cream bar, some milk and half a tomato.
The sheriff’s department claimed in a 2017 statement that officers found Un in a room within reach of the guns.
The couple sought $150,000 due to the damage to their home, which they said could no longer be lived in due to the excessive teargas use and other damage.
The appellate panel made up of U.S. Circuit Judge Kim McLane Wardlaw, a Bill Clinton appointee, U.S. Circuit Judge Milan Smith Jr., a George W. Bush appointee, and Senior U.S. Circuit Judge Eugene Siler Jr., a George H.W. Bush appointee, sitting by designation from the Sixth Circuit, upheld the ruling in an unpublished and unsigned memorandum.
The panel agreed that the Jessens did not establish a triable issue on the municipal actions taken by the officers and that the departments “do not have a custom of turning simple operations into full-scale training operations,” which the district court ruled out due to a lack of evidence.
“The record evidence shows that defendants have a general policy of obtaining warrants prior to entry, of using reasonable force, and for the reasonable use of tear gas. The Jessens failed to establish a triable issue that any of these policies caused any constitutional injuries, or that there was a ‘persistent and widespread’ violation of these policies amounting to an unconstitutional custom or practice,” the panel wrote.
The panel said the Jessens also could not prove that the two police departments who arrived at their home to retrieve the barricaded man did not have the proper training.
“Even assuming, without deciding, that defendants’ training policies are inadequate, there is no evidence that ‘the need for more or different training [was] so obvious’ that defendants were deliberately indifferent to the Jessens’ rights,” the panel wrote.
The fact that an officer sought to explain and justify each piece of property damage after the incident shows the officer exercised some discretion in his role as the operation team leader and there was no evidence that one officer had final policymaking authority delegated to him, according to the 6-page memo.
Under the case Conway v. County of Tuolumne, the California Court of Appeal found “discretionary act immunity applies to the selection of the means to effectuate an arrest, including the decision to deploy a SWAT team in effectuating an arrest, and the subsequent decision to deploy tear gas.”
“Under Conway, Defendants are immune from liability, and the district court properly granted summary judgment for Defendants on the Jessens’ negligence claim,” the panel wrote.
In a statement for Fresno County, a spokesperson said they are “very pleased with the decision by the Ninth Circuit again confirming that the Sheriff’s Office acted reasonably and in the interest of public safety under all the circumstances.”
Emails sent to the Jessen’s attorney were not immediately answered for comment.