A legal battle stemming from a SWAT operation in Bay City could help determine whether Michigan property owners should be forced to pay for damage caused by police when they are not the target of an operation.
Attorney Philip Ellison of Outside Legal Counsel discussed the case during an interview with me, explaining that his client owned a Bay City rental property occupied by a 70-year-old tenant. Police believed the tenant had a gun and called in a SWAT team. According to Ellison, what officers believed was a firearm turned out to be a broom handle.
The response caused significant damage to the property.
Ellison said officers brought in an armored BearCat equipped with a battering ram, broke windows and damaged the house. Police also fired chemical agents into the building. Ellison said the chemicals contaminated the property and required professional remediation.
When the operation was over, Ellison said his client was left with thousands of dollars in damage.
The key issue is that the homeowner wasn’t the person police were trying to apprehend.
“This case is what I like to call the innocent owner case,” Ellison said during the interview.
Ellison argues that when the government damages private property while carrying out a public purpose, an innocent property owner should not be forced to absorb the cost. He said the Michigan Constitution’s protections involving private property should require the government to compensate owners in circumstances like this.
Insurance may not necessarily solve the problem either.
Ellison said some insurance policies contain exclusions involving government actions or chemical contamination, potentially leaving homeowners responsible for much of the repair bill.
The legal fight has now reached the Michigan Supreme Court after lower courts declined to find that Michigan’s Constitution protects property owners from these types of SWAT-related damages.
Ellison said he is not arguing that police should be prevented from taking necessary action during dangerous situations. Instead, he believes taxpayers, rather than an innocent individual property owner, should ultimately bear the cost when police have to damage someone’s property.
“If you are going to cause damage to an innocent owner, then the police should have to pay for the repairs for the damage that they themselves actually caused,” Ellison said.
The case could have implications beyond this particular Bay City property. If the Michigan Supreme Court takes the case and sides with the homeowner, Ellison hopes it will establish protections for other property owners who find themselves in similar situations.
He summed up the principle simply during our interview:
“You break it, you buy it.”