Keeping the Peace
Removing someone from their home often is a volatile and emotional event. It’s critical that responding law enforcement consider the legality of what they are asked to do, especially in situations where there is no written order to remove an individual.
The complexities of living situations today lead to complex legal issues as well, which a peace officer at the scene is expected to understand and apply correctly. It is vital that officers understand when their actions might implicate landlord-tenant law, to ensure they do not find themselves violating the law.
One of the duties of Kentucky sheriffs’ offices involves executing “forcible detainers.” Eviction – the removal of an occupant from a property pursuant to a court order – occurs under several situations. Although the responsibility of the local sheriff’s office is to execute such court orders, under emergency circumstances, other law enforcement agencies may be involved in these cases.
Usually, an eviction occurs when a tenant fails to pay rent or violates another lease provision. A related type of eviction occurs when the landlord has an action taken against the occupants for foreclosure. In both cases, a legal action to have them removed from the property is appropriate.
A forcible detainer is defined as when an occupant refuses to return possession of the property to the landlord after a court order directing the tenant to vacate has been obtained. If the tenant leaves voluntarily, no further action is needed. When the landlord initiates the court process, a warrant is issued and given to the sheriff’s office to be delivered to the occupant.
Following the hearing, the occupant has seven days to appeal the judgment before their removal from the premises may move forward. In the past, such service of process was performed by a deputy sheriff “posting” the notice on the residence door.
A Jefferson County, Ky., eviction case, Greene v. Lindsey, 456 U.S. 444 (1982), had the distinction of reaching the U.S. Supreme Court on this matter. In Greene, the Court concluded such posting was not sufficient to meet the demands of due process, as there was little assurance the occupants would receive the notice. In that case, the assumption was the posting could have been removed from the door by children. The Court stated notice by mail, in addition to posting, “would go a long way toward providing the constitutionally-required assurance” the tenant actually receives notice.
“The house of everyone is to him as his castle and fortress, as well for his defense against injury and violence, as for his repose.”
Although the statute allows seven days for an appeal, the day on which the judgment is rendered is excluded from the computation of time. If the seventh day falls on a weekend or recognized holiday, the time runs to the end of the next day that is not a weekend or holiday, according to Kentucky Rules of Civil Procedure 6.01. No legal action, such as a set-out, may be taken until that time frame has expired.
Once the eviction is set, the landlord may contact the sheriff’s office to be present at the scene while the landlord does a set-out of the tenant’s belongings. The question often arises as to how much actual involvement the deputy at the scene should have with the actual process. The deputy’s duty at the scene is to keep the peace and ensure no violence occurs during the process. The phrase, “keep the peace,” is important because the deputy is not permitted to take any action with respect to moving of the property, but is there implicitly to ensure all actions at the scene are lawful.
In Soldal v. Cook County, Illinois, 506 U.S. 56 (1992), the deputies at the scene of a trailer home removal, from a location prior to the issuance of a proper order, were held liable for their involvement in the process, as they knew the landlord lacked the proper order. The Court agreed what had occurred, (which, it noted, gave “new meaning to the term mobile home”), was a violation of the Soldals’ Fourth Amendment rights.
In addition, a warrant for possession gives the landlord only the rights to enter onto the property, remove the occupant’s possessions and usually change the locks. It does not give the landlord (or anyone else) the legal right to take that property or to prevent the occupant from removing that property once it is set-out. That also means anyone else could take that property as well; there is no responsibility on the part of the landlord to protect that property from being taken or from the weather.
In the case of Cochran v. Gilliam, 656 F.3d 300 (6th Cir. 2011), deputies assisted the landlords by preventing the occupant, who arrived during the process, from taking action to secure his belongings and physically assisted the landlords in removing property from the residence. The Sixth Circuit ruled, in an action under 42 U.S.C. §1983, the deputies were not entitled to qualified immunity as there was a clear and established violation of the Fourth Amendment’s prohibition against an unreasonable seizure. The Court agreed the deputies’ actions “meaningfully interfered” with Cochran’s interest in his personal belongings, and they “interposed themselves between Cochran and the landlords to allow the landlords to take Cochran’s property.” They also turned away a Kentucky State Police trooper who arrived in response to an emergency call.
Unfortunately, although the deputies consulted with the county attorney regarding the issue, the Court ruled the phone call did “not automatically convert unreasonable actions into reasonable actions.” The Court found the deputies crossed the line when they moved from doing a “civil standby to serve the eviction notice and simply keep the peace” into active participation in the process.
Problems may arise when someone tries to have a tenant removed from a place where the tenant has legally established residency. Under the Uniform Residential Landlord and Tenant Act, codified in KRS 383, once a person becomes a legally-recognized tenant, certain very-specific rights attach.
It is not legally necessary that the person’s name be on a lease, although the landlord may choose to take action to evict if someone is allowed to move in without permission. In the case of many roommates sharing a residence, a second tenant may move in with an oral agreement rather than a written lease. Oral agreements are enforceable and valid under URLTA. In other words, simply because a person’s name is not on a lease does not mean they have not become a legal resident.
When a peace officer responds to a landlord or roommate dispute, the first reaction often is to remove one of the occupants from the premises. In many cases, the primary resident wants the peace officer to remove the other occupant. While the peace officer can encourage one of the residents to leave, it may be unlawful to force that person to leave, without a court order, such as an EPO, or an arrest. Doing so may place the peace officer in legal jeopardy for removing someone from a home where that person has a legal right to be. In addition, with court-ordered evictions, peace officers must remember their role is to keep the peace, not assist or interfere with the process, and the tenants being evicted still have a legal right to their possessions, absent a court order to the contrary.
