January 6, 2016
Yesterday, a Colorado Federal Judge upheld a claim for Federal civil rights violations filed by two homeowners against two Douglas County, Colorado Sheriff’s deputies and their supervisor. Jeff Barnes, Esq. represents the homeowners, and appeared in Federal Court in Denver yesterday to argue against a Motion to Dismiss which had been filed by the Defendants.
The Verified Amended Complaint, which was prepared by Mr. Barnes after taking over the case from the homeowners who had been representing themselves pro se, alleges that the homeowners, who were the subject of an eviction, had hired professional movers to remove their valuables and possessions from their home, and that while the movers were engaged in their work, the deputies and a van full of children showed up at the home at which time the deputies directed the professional movers to cease all work and directed the children to go into the home and throw all of the homeowners’ possessions, which included medications and valuables and personal items, into black plastic trash bags and to remove the furniture and throw it out of the home. In doing so, the homeowners’ expensive furniture and possessions were broken and damaged, in certain instances, ruined. The homeowners claim violations of their 4th amendment right to not be subject to an unreasonable seizure of their property, and that the actions of the Defendants resulted in a deprivation of this Constitutional right and thus violation of their civil rights pursuant to Section 1983 of the Federal civil rights laws.
Before filing the Verified Amended Complaint, Mr. Barnes took sworn statements of two of the professional movers who were on the scene while the wrongful conduct took place. Their testimony was consistent with that of the homeowners in the Verified Amended Complaint as to the actions of the deputies, including the deputies’ use and direction of the swarm of children who damaged, destroyed, and ruined the homeowners’ possessions, valuables, and furniture.
The Motion to Dismiss filed by the Defendants claimed, alternatively, that the action should be dismissed because the law enforcement defendants were entitled to either absolute immunity, quasi-judicial immunity, and/or qualified immunity. The Federal Judge rejected all such claims in denying the Motion to dismiss, stating during the hearing that although the homeowners were the subject of an eviction that they did not give up their 4th amendment rights in their personal property. The case is one of first impression on the facts and the law.
Counsel for the Defendants argued that the deputies were “executing a lawful order”, and thus could not be sued. However, the issue was not whether a lawful order was being executed, but whether the manner of execution of the order was lawful.
At the end of the hearing, the Judge (who is the Federal Judge who tried the Oklahoma City bombing case and sentenced Timothy McVeigh) stated that “This case will go forward”.
Mr. Barnes has now established (at least in Colorado as of yesterday) that a homeowner may, under the proper circumstances, advance a claim for civil rights violations under Section 1983 of the Federal civil rights laws for deprivation of 4th amendment rights against law enforcement officials who act improperly during the course of an eviction.
Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com