Anthony Bandiero
Attorney and Senior Legal Instructor, Blue to Gold Law Enforcement Training
A question from an officer in Illinois. A woman moving out of her boyfriend’s house asks for a civil standby, finds the locks changed, and asks the officers to kick the door in. The sergeant green-lit it. Then they saw a gun in plain view, and the boyfriend started talking about a million dollars.
All right, let’s talk about kicking in a door on behalf of a person during a civil standby.
What happened during the civil standby?
This officer is in Illinois. Basically, in a nutshell, they were assisting a female that was moving out from her boyfriend’s house, and she requested a civil standby. They had been fighting and she just wanted to get her things and leave.
Now remember, she lives there. So that’s very important for our story.
So she gets there, the door’s locked. Maybe the change of locks, whatever. She cannot get into the house, and she tries for several minutes to get in. The cops are standing by, and she can’t make entry. And she says, well, can you kick the door in?
And the cop said, all right. So the officer also got his sergeant’s permission, which I think is important, just for IA purposes and so forth. So the sergeant said yep. He green-lit the kicking. And the officer kicked the door in and went in, and also stood by while the female grabbed her stuff.
There was another roommate that was there, and that roommate did not say anything about getting out and so forth. So the cops are there helping to keep the peace.
And while in there, they saw a gun in plain view. They knew that nobody had this firearms identification card. This thing that Illinois makes people have to even possess guns in a home. Besides the fact that I think it’s unconstitutional, that’s beyond the point, but the officer saw this gun, and that is contraband. Certainly contraband under those facts, because nobody in that house was allowed to possess it without that card.
So now the boyfriend’s like, I’m suing, we’re going to the Supreme Court on this if we have to. I want a million dollars type of attitude. You violated my rights.
Now nobody actually got charged with the firearm. But that’s besides the point. Even if you get charged or you don’t get charged, the question is still the same. Did making a forced entry in that house violate anybody’s rights?
Could the woman have kicked in her own door?
I think the answer is going to be no, because the question for me is, could the female with those facts do a forced entry in her own home?
Sure. It’s not a crime to destroy your own property. And the boyfriend cannot evict a tenant. So that tenant can actually use reasonable force to re-enter the premises. I don’t see a crime being committed here.
In other words, let’s just change the facts and see if we change the answer. If the officers were never involved in this case to begin with, and she was trying to get into the house and she had the strength to kick that door in, and she kicked the door in, and then he calls the cops and the cops arrive and say, hey, yeah, I want her arrested because she kicked the door in.
You think the cops are going to arrest her? You think the cops can arrest her for what? She kicked the door in to where she lives, because he forced her out.
So that’s how I look at this.
Can she authorize police to force the door for her?
And now, because she can do it, who can she allow to do it on her behalf?
Can she call the neighbor to help? Would the neighbor be committing a crime if he helped her? No. Because he’s acting as her agent. In other words, she has the authority to do it. Why can’t she have somebody else that has more brawn do it for her?
Isn’t that the situation for the police? I know that police cannot just kick the guy’s door in, but that’s not what happened here, as far as that part. They’re kicking it in, they’re making forced entry on behalf of somebody who does have the authority to do it. So they’re an agent of her, and she has the authority.
So this whole lawsuit business, people can sue for anything. But quite frankly, I don’t see how they did not have the lawful authority to help her re-enter her home.
What if you locked yourself out and called police for help?
I mean, this is no different than, let’s say somebody went on vacation and got robbed in Las Vegas, and they lost their purse, and the keys to the house are in that purse, but they’re able to make it back to their home. And they’re trying to figure out a way to get into their house again. They don’t have a key, and they call the police.
Could the cops help that person break their own window to get into the house? Of course they can. Whether they do it or not, I’m not saying that that’s what they’re going to do. I’m just telling you that would not be a legal issue. In my view, that would not be a constitutional issue. That would not be a tort claim against the officers. They had consent from somebody who can give it, and I think that would be fine.
So that’s my viewpoint on this. I hope it helps.
The short version
- “Now remember, she lives there. So that’s very important for our story.”
- “It’s not a crime to destroy your own property. And the boyfriend cannot evict a tenant. So that tenant can actually use reasonable force to re-enter the premises.”
- The test that does the work: change the facts. If she had kicked it in herself and he called the police, “you think the cops can arrest her for what?”
- “Because she can do it, who can she allow to do it on her behalf?” The neighbor commits no crime, because “he’s acting as her agent.”
- “I know that police cannot just kick the guy’s door in, but that’s not what happened here.”
- Getting the sergeant on the radio first was the right instinct. “I think that’s important, just for IA purposes.”
- “People can sue for anything. But quite frankly, I don’t see how they did not have the lawful authority to help her re-enter her home.”
- “They had consent from somebody who can give it, and I think that would be fine.”
Related from Blue to Gold
- Patdowns During a Civil Standby
- Can a Person Who Has an Access Code Give You Permission to Enter a Home?
- Losing Qualified Immunity
This article is an edited transcript of Roadside Chat EP#972. It is legal training, not legal advice. Check your state law and your agency policy, because both can be more restrictive than the Fourth Amendment.
