MIAMI MIRROR – TRUE REFLECTIONS

UK Police stand by to assist with a court ordered eviction

BEGGING FOR TROUBLE WITH POLICE ASSISTANCE
Some kinds of Civil Assists or Standbys are not worth the trouble
January 4, 2014 By David Arthur Walters MIAMI MIRROR MIAMI BEACH—Other than domestic disputes between spouses, one of the most disturbed civil relationships a law enforcement officer may encounter is that between landlord and tenants. A county sheriff and his deputies or other “constitutional” officers may be attacked by a tenant or occupant during the process of assisting a landlord with an eviction ordered by the court. And a regular police officer may be harmed when standing by to keep the peace in case something untoward occurs during a landlord’s entry into demised premises for emergencies or for regular maintenance or inspection. Another danger the police officer faces as a result of “standbys” or “civil assists” in landlord/tenant issues, when she does not merely standby to keep the peace in the event of criminal behavior but takes action to assist the landlord, is a lawsuit for civil trespass for helping the landlord with unlawful entry and the violation of the tenant’s civil rights, and perhaps even a charge for criminal trespass. A police officer may enjoy sovereign immunity from personal liability for unintentional negligence, but she may be liable when she violates a person’s civil
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and constitutional rights. As for the landlord, he could in theory be charged with criminal trespass and harassment, and might be sued for civil trespass, invasion of privacy, and breach of implied covenant for quiet enjoyment. After we consider below a September 2013 civil assist or standby that occurred in the City Miami Beach without a court order, we may conclude that, in the absence of a court order, police officers should not standby or assist landlords who want to enter demised premises in non-emergencies even though it is well within a police department’s discretion to so as a courtesy. A civil assist is one in which a police officer merely monitors a scene in order to insure that the peace is kept. Where a civil assist is rendered, the officer's sole function is to stand by in the event violence or similar trouble ensues. It is not the police officer's function to help anyone, for example, to enter or take possession of property, to take custody of a child, to evict persons, et cetera, which is normally within the purview of the sheriff or other constitutional officer and not police officers. A police department for a city the size of Miami Beach might make hundreds of civil assists for all sorts of events during a year, many of them to standby while property is being recovered or repossessed pursuant to civil court judgments. For example, the Plantation, Florida, police department reported 666 civil assists in 2012, as compared to 6,827 service calls for alarm checks, 5,480 for suspicious persons, 5,120 to check premises, 1,303 domestic violence calls, and, at the lower end, 55 shooting calls, 9 prowler calls, 5 murder calls, and 1 service call each for gambling and armed suicide. In 2013, a tenant who happens to be a real estate professional complained to the Internal Affairs of the Miami Beach Police Department that two police officers had illegally assisted her landlady, a politically connected member of the community, with the unlawful entry of her home. She said she was out of town at the time. Alarms that she had installed in the unit went off and the police were notified of same, but they were false alarms. She said she expressly denied her landlady permission to enter the home until her planned return three days later because she feared for the safety of her elderly mother and her dogs inside the home. However, the landlady sent over a realtor, a locksmith, and a dog handler, and the home was entered with two police officers standing by. The locksmith was needed because the tenant had changed the lock, presumably without permission because how would the landlady have known to send a locksmith unless she had tried to enter the premises without permission on a previous occasion? The tenant said that she attempted to report what she perceived to be a criminal entry when she returned to town, but officers at meeting held at the police station denied that any crime had been committed, denied that the police officers had entered the home, and refused to make a report of the incident at that meeting. She said a lease authorizing immediate entries
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was produced bearing her forged signature thereon, but the police would not give her a copy of the document. A police report was eventually written, she said, but it did not give her side of the story. She claimed to have an audio/video confession of the dog handler confirming that he was asked to restrain the dogs, and that the police officers had entered the home, but she refused to produce the evidence to Internal Affairs, which raised the question as to whether she really had a recording or whether she was afraid to produce it because she had violated the wiretap law. She made a futile attempt to get a state attorney to press charges. Her dispute with the landlady continued in court with eviction proceedings. According to the police department, the court has authorized another, later entry to show the property. She contacted me to publicly air her complaints against the police department. I referred her to professional muckrakers and informed her that I do not cover police misconduct complaints because I am biased in favor of police forces yet was nevertheless interested in the improvement of police processes. I only had one side of the story, the tenant’s, but I personally believed that the police officers had not intentionally done anything wrong. If the officers had entered the premises, that would be problematic even if invited in by the landlady or her agent unless they were checking for burglars; and maybe the mother was not present because she had been stuffed in the closet. Perhaps mistakes were made, and maybe they tried to cover when they saw the scorned tenant coming at them like hell on wheels, but who knows? There was no report written at the scene of the incident at the time, and memories are especially faulty when a person is accused of misconduct after the fact. Indeed, one of my pet peeves about police processes is the unwillingness of officers to write reports when an officer believes no crime has been committed. I am keen on reporting everything. Anyway, no physical damages were done in this case, and I opined that it would be best for the infuriated tenant to just move on. I certainly sympathized with her feelings, especially since she was familiar with abuses of authority by a ruthless dictator, but I stated that it was foolish for her to waste time trying to press criminal charges against cops and the landlady when her attorney should be filing complaints for civil trespass against her premises and chattels (her dogs), and demanding damages for intentional and/or negligent infliction of emotional distress. Indeed, police officers and the state attorney had insisted all along that it was a civil, not a criminal matter. What good would a little more bad publicity for the police department do her?
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Why bother with a wrist-slap at most when thousands of dollars of salve could be applied to her wounded dignity? With that incident in mind, it is not surprising that some jurisdictions provide special training and even complete handbooks on the subject to their police officers. For example, the State of Connecticut provides its officers with a 33-page Landlord/Tenant Disputes, Police Training Manual (2009) with separate chapters on Lockouts and Self-help Evictions, Unlawful Entry, No Heat and Termination of Services, and Criminal Damage to a Landlord’s Property, all in the context of state Landlord/Tenant law, which is relatively uniform in most states. In its discussion of Unlawful Entry, the Manual stresses the importance of the landlord obtaining the tenant’s consent for non-emergency entries. That consent may not be unreasonably withheld, and the landlord may obtain a court order if it is. The question is posed, “May I enter the apartment with the landlord to make sure that there are no problems? - You are allowed to be present for any legitimate police purpose, but do not allow the landlord to use your authority as a police officer to enable the landlord to enter the apartment unlawfully. Make a point of knowing what the law is, or check with your shift supervisor or the housing prosecutor. As with police assistance in an illegal lockout, you must determine whether the entry is legal. If it is not, your job is to prevent the entry, not to facilitate it and thereby permit the commission of a crime.” The highly regarded organization, Americans for Effective Law Enforcement, published an 11page article on the subject in the June 2009 edition of the ‘AELE Monthly Law Journal. “The relationship between landlords and tenants is often a volatile one, ” states the Introduction, “with disputes arising over a wide variety of issues, including money, the condition of the premises (and whose fault any defects are), the presence of pets (authorized or not), landlord entry into the rented premises, noise, the number of persons living in the apartment, lead paint, safety hazards, crime and drug or gang activity on and near the premises, and of course, eviction and tenant lockouts, both legal and illegal. On occasion, police officers are summoned to a rented premises by either a landlord (or their agent) or a tenant (or both).” “It is not the job of an officer to resolve landlord tenant dispute,” we are forewarned. “Whether the rent was fully paid, or whether the landlord broke a promise to paint the living room, are civil disputes, and the parties can be reminded that there are courts to resolve those disputes. Officers can, of course, stand by while landlord-tenant disputes are going on, but should not take part on either side. They may, of course, take appropriate action if an offense occurs.”

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The AELE cited several interesting cases on the subject: * Ryan v. Mary Immaculate Queen, #98-3849, 188 F.3d 857 (7th Cir. 1999), ruling that apartment tenants had standing to challenge an allegedly unconstitutional search of a rented premises when their landlord, who wanted to evict the tenants, did not have a valid order granting him exclusive possession at the time deputy sheriffs allegedly engaged in a search. * Kalmas v. Wagner, #64206-1, 943 P.2d 1369 (Wash. 1997), stating that a deputy sheriff's brief, invited entry into the tenants' residence to assist a landlord's agent in showing the premises to potential new tenant, even if it constituted a search, was reasonable, based on the deputy's “community caretaking” function. The deputy acted with a motive to keep the peace in a dispute between tenant and landlord. * Osipova v. Dinkins, #92 Civ. 8959, 907 F. Supp. 94 (S.D.N.Y. 1995), concluding that a police officer was entitled to qualified immunity for a warrantless entry into an apartment when the landlord told him that water was leaking into the premises below, interfering with the provision of heat and hot water for whole building. * Craig v. Krzeminski, #88-159764 F. Supp. 248 (D. Conn. 1991), in which a mere denial by a landlord that he had harassed a tenant did not eliminate the officer's probable cause to arrest him based on the tenant's complaint. One of the first things plaintiff’s lawyers ask of law enforcement defendants during litigation is if their police departments had a written policy at the time. That way, it can be discovered whether or not police officers followed a reasonable procedure or acted arbitrarily on their own. Police departments are often reluctant to have “too many policies” because that interferes with their discretion to effectively suit the particular situations they are confronted with. I asked the Miami Beach Police Department if its officers were trained to conduct civil assists in landlord/tenant disputes, and if it had a written policy on the matter. The Florida Basic Recruit Training Program (Page 91 of the 497-page Volume I) provided to me by the MBPD addresses landlord/tenant disputes in merely 286 words, none of which address the sort of standby situation we are mainly concerned with here: “Landlord and Tenant Disputes: Law enforcement officers are sometimes called to disturbances arising from landlord and tenant disputes. It is important that officers faced with these situations have a general knowledge of what action, if any, they can take. The Florida Residential Landlord and Tenant Act, F.S. §83.40–83.682, governs most of the traditionally recognized rental arrangements for dwellings, such as those for apartments, town homes,
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duplexes, single-family housing units, and mobile home parks. In tenancy situations covered by the law, the only way a landlord can legally recover possession of the leased residence without the consent of the tenant is to file an eviction proceeding in the county court where the residence is located pursuant to F.S. §83.59. If the landlord is successful, a writ of possession will be issued by the court to the sheriff, who is then authorized to evict the tenant and put the landlord in possession of the residence after a prescribed notice period. See F.S. §83.62. Officers should be aware that until legally evicted, a tenant has a right to enter the residence, and a landlord may not prevent entry by changing the locks. See F.S. §83.67(2). Law enforcement officers may physically evict a tenant only pursuant to a writ of possession. Any action without a writ that causes the removal of a tenant, whether physically removing the tenant’s belongings from the residence or suggesting to the tenant that failure to leave may result in arrest, is likely to be considered a wrongful eviction. (LE061b.7.) There are three types of residential rental facilities where the Residential Landlord Tenant Act does not apply: public lodging establishments such as hotels and motels, F.S. §509.141; medical, geriatric, educational, counseling, religious, or similar residency.” Two pages from the Miami-Dade County Edition 2013 Florida Law Enforcement Handbook published by the Miami-Dade County Police Department the Miami-Dade County Legal provided to me by the MBPD is more explanatory than the FDLE training manual but it also does not touch on our present concern with civil assists when officers standby during nonemergency entries such as maintenance and inspection. That is, the Handbook only addresses evictions pursuant to Florida’s Landlord Tenant Act. In sum, law enforcement officers are advised that evictions from more or less permanently rented residences are not handled not by city police but by the county sheriff, and then only on the basis of the county court’s writ of possession in cases of eviction . We learn that there are three categories of removal from premises that city officers commonly deal with. Firstly, removal from motels and hotels upon demand of the landlord of the particular public lodging establishment where the normal occupancy is temporary or transient; i.e. less than thirty days or a month. Here the law enforcement officer must be careful to ascertain by collecting evidence that the intention of landlord and the guest is that the tenancy is transient. Secondly, officers may remove, on a charge of trespassing, occupants from public and private facilities that provide educational, medical, geriatric, counseling, religious, and like services. Thirdly, we have the recreational vehicle park category. Here again the officer must take care to determine that the occupancy is transient, which is the main factor to consider since more or less permanent residency exceeding thirty days requires a court order for eviction. If police officers have any doubts about the situation, they should not to play lawyer but should first consult with the legal adviser in the city attorney’s office. Furthermore, before maki ng an arrest to remove someone, “be sure that enough articulable facts exist to justify a probable cause arrest.
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It may be advisable, instead, to write a police report and advise the complainant to ask the State Attorney's Office to file the case rather than to risk a bad arrest.” As for our Miami Beach standby, the police department may have insisted, prior to agreeing to a standby, on receiving a certified true copy of the lease and an affidavit with other documents supporting the landlady’s right to enter then premises absent explicit consent of the tenant. Section 83.53 (‘Landlord’s access to dwelling unit’) provides that “The tenant shall not unreasonably withhold consent to the landlord to enter the dwelling unit from time to time in order to inspect the premises; make necessary or agreed repairs, decorations, alterations, or improvements; supply agreed services; or exhibit the dwelling unit to prospective or actual purchasers, mortgagees, tenants, workers, or contractors.” For emergencies, the landlord can enter at any time. For repairs, the landlord must give 12 hours advance notice. For non-emergencies and if the tenant is absent and had notified the landlord of the absence when intended, the landlord may not enter the premises at all if the rent is current. Otherwise the tenant must consent, and may not unreasonably withhold consent. The tenant here claimed a lease was presented after the fact, impliedly with a clause that the landlord could enter as had been done, and that her signature had been forged. Since the statutory protections cannot be waived, the statute holds. So what is “unreasonable”? Well, maybe the police department should give th e city attorney a call on that. And perhaps he may want to question both the tenant and the landlady. We do not have all the facts here, but it appears that the landlord made a request for assistance in a civil matter in a non-emergency situation, without a court order, and that indicates an adverse relationship with the tenant, so it would be wise to call the tenant. In retrospect, the tenant’s account of what happened is incomplete, and many questions would be asked by lawyers during the course of litigation. But why would the city attorney bother to do anything except tell the police department not to bother providing civil assistance in this kind of situation and ask landlords to get a court in this kind of situation? My own landlord adamantly refuses to enter my apartment even with my written consent unless I or my representative is present. He is convinced that doing otherwise is to beg for trouble. ##

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