Law enforcement officers on the Western Slope are immune for damage they allegedly caused to a Mesa County woman’s home in a SWAT operation to recover a stolen piece of heavy machinery, a court has ruled.

The decision referenced the prior case of Greenwood Village homeowners whose house was destroyed in a 2015 SWAT operation to arrest a felon barricaded inside. The federal appeals court based in Denver declined to find a constitutional violation in that instance, deeming the tactics a valid exercise of police powers.

In the case of Patricia Cuervo, multiple agencies responded to her residence in March 2018 and, according to a police report, deployed less-than-lethal rounds, chemical munitions and Tri-Chamber Flameless Grenades in executing a search warrant to recover a stolen Sno-Cat vehicle and toolbox.

The Eagle County Sheriff’s Office, Mesa County Sheriff’s Office and Grand Junction Police Department’s SWAT unit assisted with the operation. Lawyers for the officers wrote that those personnel who acted on the search warrant were allowed to perform a protective sweep of the premises before searching for the stolen property.

“On balance, therefore, Defendants’ interest in their own safety at the time of the seizure outweighed any intrusion upon Plaintiff’s Fourth Amendment interests,” the motion to dismiss explained.

Law enforcement did find the Sno-Cat in the garage, where Cuervo’s son, Jason Cuervo had towed it from Minturn under the influence of drugs, according to court records. Patricia Cuervo later told police where to arrest her son, who was not inside when officers entered the home.

A Grand Junction police report noted that at the time of the search, the Mesa County Sheriff’s Office believed Jason Cuervo was barricaded inside the residence. A deputy “advised they saw the male in the residence and he would not come to the door,” the report noted. “MCSO advised the suspect was in the residence and had access to weapons with a significant criminal history rising to the level of SWAT.”

But Cuervo said that despite the lack of a threat, officers fired chemical weapons into the home and, in executing the warrant, “areas were entered and searched where the Tucker Sno-Cat, which was the sole subject of the search warrant, could not reasonably be expected to be found.”

An attorney for Cuervo declined to comment on the nature of the damage to the home, the estimated dollar value of the damage, or even whether Cuervo witnessed the operation.

In March 2020, Cuervo filed a federal lawsuit against all of the law enforcement officers involved, claiming an unreasonable search that violated the Fourth Amendment and the taking of her property without due process of law.

However, the officers asserted qualified immunity, which is a judicial doctrine that generally shields government employees from civil liability absent a violation of clearly-established legal rights.

“Plaintiff cannot establish the use of chemical agents to clear a home where a felon is believed to be hiding was excessive, unreasonable, or otherwise prohibited by clearly established law,” attorneys for the officers argued.

Cuervo countered with a U.S. Supreme Court decision from 1982, which found a lawful search “generally extends to the entire area in which the object of the search may be found.”

U.S. District Court Judge William J. Martínez found Cuervo to have misunderstood the warrant, which referred to the garage as well as the residence.

“Although Cuervo argues that entry into the home was unreasonable because the Sno-Cat could not be found there, the warrant authorized entry onto the entire property to search for the Sno-Cat and the toolbox,” Martínez wrote in an April 19 order. “Because Cuervo has not demonstrated that Defendants violated a clearly established right in conducting the search of her property, she has not met her burden to overcome the defense of qualified immunity.”

Martínez dismissed the unlawful search claims against the officers, and also threw out Cuervo’s allegation that the police destruction of her home constituted a taking of private property for public use. The judge believed that damage fell “within the scope of police power.”

He did, however, allow Cuervo to file an amended complaint, and encouraged her to use more specific legal arguments in that event.

The case is Cuervo v. Salazar et al.