Jones

This case presents a difficult question: can officers be held liable for an allegedly unlawful search when there is no direct evidence of their individual participation? We conclude that in this case they cannot. This case also presents a difficult situation: a search of a house, pursuant to a warrant, that results in the destruction of personal property. Our reaction to the situation is great sympathy for Betty Jones.

On April 1, 1995, officers from the Los Angeles Police Department (hereinafter “LAPD”) arrived at Betty Jones’s (hereinafter “Jones”) house in Los Angeles. The officers were part of “Operation Sunrise,” the name given to a massive group of searches in homes to locate weapons and contraband related to various gangs. Jones’s house was selected for search because of allegations that certain residents of her house had an affiliation with the 8 Trey Gangster Crips, one of the gangs targeted in Operation Sunrise. These searches were all conducted with warrants. The police were given the criminal history of the people residing in the houses where the raids were to be conducted, and the locations were graded on various risk factors. The police testified that they…

concurring in the judgment:

I respectfully concur in the result. I write separately because, in my view, the Rutherford instruction submitted by the plaintiff was a correct statement of the law. It was properly refused only because it was not justified by the evidence. Specifically, the evidence at trial was not susceptible of the interpretation that the damage occurred while no one but the officers was present. To the contrary, the residents testified to what they say they witnessed the police officers doing. The police officers gave their opposing version of the story, and it was for the jury to decide which to believe.

As a general rule, a res ipsa-type instruction can be given in a case such as this if: first, the defendants are uniquely positioned, to the exclusion of others, to know the circumstances that caused the plaintiffs injury; and second, the injury would not normally occur without wrongdoing on the defendants’ part. See Reber v. United States, 951 F.2d 961 , 964 n. 1 (9th Cir.1991). Res ipsa belongs to the world of negligence. This case, like Rutherford, involves an intentional constitutional tort. However, the principle of proof is *1168 the same. If government…