Civil SuitCriminal LawDue ProcessMunicipal LiabilitySearch and SeizureYou Can't Make This Stuff Up
Fire Victims Sue City Over Denial of Re-Entry
The victims of a house fire are suing the City of Reno, Texas claiming that they were wrongfully prevented from re-entering their home after the fire. John and Stephanie Toppings have filed suit against the City of Reno and Police Chief Matt Birch in federal court claiming that preventing them from re-entering their property was an unconstitutional seizure.
The fire occurred on March 7, 2014. According to the complaint:
- As the fire was developing and prior to engulfing portions of the house, Reno Police Chief Birch refused to permit the Toppings from securing items from the residential property, to include irreplaceable family heirlooms, sports memorabilia, family photographs, jewelry, etc.
- Defendant Birch initially prohibited the Toppings from removing their vehicle from adjacent to the home until he was able to conduct a search of the vehicle. The reason given the Toppings was to prevent them from removing possible evidence; not for any safety considerations.
- Prior to the Toppings leaving the smoldering remains of their home, Defendant Birch had police barrier tape placed around the property.
- Upon information and belief, Defendant Birch has no formal training into arson investigation. Further, at no time did Defendant Birch make any inquiry of the Toppings as to the possible cause of the fire; despite Mrs. Toppings being at home with her children.
- The following day, the Toppings arrived at their home to find that police barrier tape was still in place along their property line.
- As they attempted to discern what to do and what possibly could be salvaged, Reno police officers drove by the property at various times and the officers ordered the Toppings not to enter their property or they would be arrested.
- These orders were given in the absence of any warrant or other judicial order.
The fire was ruled accidental by the state fire marshal.
The three-count complaint alleges:
- Unlawful seizure of property and due process violations under 42 U.S.C. § 1983.
- Unconstitutional custom, policy and/or training deficiencies under Monell v. New York City Department of Social Services, which allows municipal liability for intentional acts as well as those resulting from deliberate indifference.
- Intentional infliction of severe emotional distress.
The toppings claims their damages exceed $100,000. Here is a copy of the complaint: Toppings v Reno
Interesting case, Curt. Most of the claims seem to have no merit but locking down the scene after fire suppression was complete without a warrant and without maintaining physical control could be a valid cause of action. But at that point what damage did they suffer? I don’t see a quick dismissal but I hope you follow this and keep us posted.
“Venue is proper in the Eastern District of Texas upon 28 U.S.C. Section 1391 as all actions of which Plaintiffs complain occurred in Lamar County, Texas.” Problem number 1. The actions occurred in Reno, TX, which is in Parker Co. Lamar Co. is 150 miles east. As an investigator in Texas, there are several questions of state law I see, which do not fall under federal jurisdiction. Problem 2. It is implied in the complaint that the property was abandoned by the department. Scene tape does not maintain custody without a physical presence of an official, and the state fire investigator would need a warrant to investigate the cause. I see this being remanded to the state court, to resolve the state issues first. There is more to this story that isn’t being told.
It depends entirely on how this case gets triedunder 42 U.S.C. § 1983.
Every person who under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law.
But in addition, there is the element of personal property and probable unlawful search and seizure.
The 4th Amendment to the U.S. Constitution guarantees freedom from unreasonable search and seizure. This means that law enforcement agents need probable cause, and a warrant in most cases, to search your person or belongings. If there is no probable cause and you are searched illegally, any evidence collected from the search will be excluded from evidence at trial. This has come to be called the Exclusionary Rule.
Probable Cause – There must be enough evidence that a reasonable person would believe a crime was committed. This evidence is presented to a judge who must agree before authorizing the search by granting a warrant.
The purpose of the 4th Amendment is to protect people from being abused by a powerful government. There are strict rules that government agents must follow to search you and seize evidence.
Contrary to popular belief, the right to privacy is not specifically mentioned in the U.S. Constitution. Over the years, the courts have interpreted the 4th Amendment, along with other Amendments such as the 9th, to protect privacy in many situations.
But the Fire Department may seek protection under the 11th amendment, which in this case, may be weak at best. Still they are entitled to a defense.
If the Fire Department receives money that directly or indirectly come from state or federal funding, it may be possible for these citizens to recover some of teir losses and at least get a sanction against the Fire Department for failure to protect and uphold the rights of these citizens.
There are three main exceptions to the sovereign immunity of a state. First, The Eleventh Amendment does not stop a federal court from issuing an injunction against a state official who is violating federal law. Although the state official may be abiding by state law, he is not permitted to violate federal law, and a federal court can order him to stop the action with an injunction.[ Ex Parte Young, 209 U.S. 123 (1908) ] Money damages are possible against the state officer, as long as the damages are attributable to the officer himself, and are not paid from the state treasury. Scheuer v. Rhodes, 416 U.S. 232 (1974).
The Eleventh Amendment does not automatically protect political subdivisions of the state from liability. Moor v. County of Alameda, 411 U.S. 693 (1973). The main factor is whether the damages would come out of the state treasury. Hess v. Port Authority Trans-Hudson Corp., 115 S. Ct. 394 (1994), If the state would have to pay for damages from the state treasury, then the Eleventh Amendment will serve as a shield from liability.
Other factors may include the amount of state control and how state law defines the subdivision, although the Supreme Court has never issued a comprehensive guideline. Eleventh Amendment immunity does not protect municipal corporations or other governmental entities that are not political subdivisions of the state, such as cities, counties, or school boards.
Finally, the states surrendered a portion of the sovereign immunity that had been preserved for them by the Constitution when the Fourteenth Amendment was adopted. Therefore, Congress may authorize private suits against non- consenting states to enforce the constitutional guarantees of the Fourteenth Amendment.
The Eleventh Amendment is a constitutional limit on federal subject matter jurisdiction, (but by case law extends to some cases like this.) It depends on the skill, knowledge and wisdom of the plaintiff’s council. I would make sure to bring in expert council because a case like this would be very easy to lose if the plaintiffs retain a run of the mill legal counsel.