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Avery landlord loses his civil rights claim

Hon. Terence Evans

Hon. Terence Evans

The former landlord of convicted murderer Steven Avery cannot sue the county for damages resulting from the execution of search warrants during the police investigation.

Roland Johnson, the landlord, alleged the warrants were unreasonably executed in violation of the Fourth Amendment, and the damages were an uncompensated taking in violation of the Fifth Amendment.

But the 7th Circuit on March 10 rejected both claims.

In 2003, Avery was released from prison after serving 18 years for a sexual assault he did not commit. He then leased a trailer and a garage on property in Manitowoc County owned by Johnson.

On Halloween 2005, Avery murdered a photographer from Auto Trader magazine who had come to the property. During the investigation, authorities executed several search warrants.

Johnson sued Manitowoc County and other defendants in federal court over damage to his property, which included removing carpet sections and wall paneling, cutting up a couch in the trailer and taking a jackhammer to the concrete floor of the garage.

U.S. District Judge Rudolph Randa granted summary judgment to the defendants and the 7th Circuit affirmed in an opinion by Judge Terence Evans.

Johnson argued it was unreasonable for the officers to use a jackhammer to search for blood that may have seeped through cracks in the concrete floor of the garage. He argued they should have used a diamond saw instead, which would have resulted in less damage.

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But the court held that, even if this is true, it is not a Fourth Amendment violation.

The court concluded, “Johnson cites, and we find, no cases requiring that officers use the least possible destructive means to execute a search warrant. Rather, ‘so long as the officer’s conduct remains within the boundaries of reasonableness, an officer has discretion over the details of how best to proceed with a search warrant’s execution.’ Lawmaster v. Ward, 125 F.3d 1341, 1349 (10th Cir. 1997).”

Johnson also argued the damage from the searches violated the Takings Clause, but the court rejected this claim as well.

The court held, “the Takings Clause does not apply when property is retained or damaged as the result of the government’s exercise of its authority pursuant to some power other than the power of eminent domain.”

The court added that Wisconsin has procedures by which innocent parties can seek compensation for such damage, but Johnson had not pursued them.

The case is Johnson v. Manitowoc County, No. 10-2409.

David Ziemer can be reached at david.ziemer@wislawjournal.com.

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