“They destroyed the house, they broke every window, they put holes in the stucco. They deployed a ridiculous amount of contaminated chemicals…in the home, rendering it uninhabitable,” said the plaintiff’s lawyer during oral argument, while describing the damage a SWAT team inflicted on the home of Oleg Varlitskiy while they were looking for his son. Only one problem, the son, a suspect in a “string” of armed robberies, was not there. He was later found in a park and arrested.

Varlitskiy sued, seeking reimbursement for the damages and an opportunity to present additional expert testimony, but both the trial and appellate courts found the Riverside County Sheriff’s SWAT team to have qualified immunity and the property destruction to be “reasonable under the circumstances.” The Ninth Circuit agreed.

In a unanimous, unpublished memorandum opinion issued on April 11 by Ninth Circuit Judges Danial Aaron Bress, Kenneth Kiyul Lee and Johnnie B. Rawlinson, the signatories affirmed the grant of summary judgment by District Court Judge Jesus G. Bernal of the U.S. District Court for the Central District of California. Bernal also denied plaintiff’s request to conduct additional expert discovery, which led to plaintiff’s allegations that the denial abused his discretion.

The opinion began with a discussion of the legal requirements for qualified immunity. The judges explained that under Ninth Circuit precedents, two considerations are required: whether a constitutional right has been violated and whether that right was “clearly established” at the time of the defendant’s actions. The justices explained that while it is true that plaintiffs’ Fourth Amendment rights can sometimes be violated, they used a “test of reasonableness” to assess the SWAT team's conduct by balancing this plaintiff’s interests against those of the government.

The facts that led to the SWAT team’s actions began when plaintiff’s son, Aleksandr Varlitskiy, who was a suspect in a “string of armed robberies,” was seen entering the garage of his father’s home by two sheriff’s deputies. They had a search warrant that they wanted to execute, but they had no arrest warrant. As a result, they called in the SWAT team that according to the plaintiff’s pleading, “caused a forced entry…by bulldozing walls and using other unnecessary destructive acts…bombed the home…with tear gas and other toxic materials, tore down walls… and destroyed Plaintiff’s personal property and home, rendering it uninhabitable.” These actions went beyond the scope of the search warrant, the plaintiff alleged.

One sergeant on the SWAT team had testified that “If we had entered the house without first using chemical agents, and if the suspect were in the attic and armed with the gun used in the armed robberies, there was a significant risk to the deputies of being shot.”

The Ninth Circuit was not persuaded by this account of the destruction, but seemed to agree with the sergeant’s reasoning. Thus they ruled, “…given the potential threat the SWAT officers faced in executing the search warrant, the countervailing governmental interests at stake justified these actions.” They cited another Ninth Circuit case that had determined “officers ‘need not avail themselves of the least intrusive means’ in scenarios such as the one before us, so long as officers ‘act within that range of conduct we identify as reasonable.’”

Varlitskiy also argued the SWAT team’s actions were responsible for the fire that burned substantial portions of his home. The court’s opinion, in contrast, determined that Varlitskiy did not carry his burden of proving this allegation, and said there was contrary evidence that showed Aleksandr “may have been responsible for the fire.” The justices also found no evidence that the use of tear gas “was so excessive as to violate the Fourth Amendment.”

The memorandum then turned to the issue of qualified immunity for the deputies who called in the SWAT team. It determined that the deputy sheriffs were entitled to this protection “for the same reasons as the SWAT defendants” and because the deputies did not have “fundamental involvement” in the conduct upon which the lawsuit was based. The opinion explained that “once the SWAT team arrived, the deputies “did not participate in the operation in any meaningful way,” nor did they know that the SWAT team’s actions could create liability.

The final reason for affirming the trial court’s entire ruling was that the appeals court did not find that Judge Bernal abused his discretion when he denied plaintiff’s request for additional expert testimony. The Ninth Circuit wrote, “By not demonstrating how the requested discovery would alter the qualified immunity analysis, the plaintiff has not “show how allowing additional discovery would have precluded summary judgment.”

The Ninth Circuit thus affirmed Bernal’s entire ruling, and Varlitskiy will get neither damages nor the opportunity to have another day in court.