from the nice-to-see-some-stunned-officers-for-a-change dept
It usually takes very extreme behavior from law enforcement officers to punch holes in the qualified immunity shield. Fortunately/unfortunately, there's seems to be no shortage of extremely-badly-behaving law enforcement officers.
In this case, fielded by the Eighth Circuit Court of Appeals, the Kansas City Police Department was investigating a homicide. Detectives managed to track the victim's cellphone to an apartment. They also managed to track down the suspect by using a combination of phone records and old fashioned police work. They arrested the suspect and applied for a search warrant for his residence.
The warrant request omitted the fact they had heard the targeted phone ringing in an apartment on Winchester Street, rather than the apprehended suspect's residence (the "Bristol residence"). The SWAT team also met prior to the search and were informed the homicide suspect was already in custody.
The SWAT team proceeded to the Bristol residence with a normal search warrant. Once the SWAT team arrived, it decided to do SWAT team things, even though it only had a normal warrant that didn't authorize the things it chose to do.
Here's how it began, according to the Eighth Circuit decision [PDF]:
At 7:00 p.m., the SWAT team, dressed in tactical gear with weapons drawn, approached the front door of the Bristol residence. The front entrance had both an inside wooden door and an outside metal screen door, each of which were “double-keyed,” meaning they required a key to open from both the inside and the outside. Because the warrant did not authorize a “no knock” entry, the SWAT team knocked on the door and announced: “Police, search warrant!” At the time, there were four people inside the residence: the plaintiff, Z.J., a two year old girl; Laverne Charles, age 84; Leona Smith, age 68; and Carla Brown, age 24. Carla grabbed the keys to the door and opened the inside door.
So far, so good. There was no suspect to apprehend so the SWAT team's presence seems a bit extraneous. But the resident was offering to unlock the door to let them in to search the place. But time waits for no one, not even the Fourth Amendment.
She then held up the keys to the door in her hand and jingled them for the SWAT team to see in order to indicate that she was going to open up the door. Before she had the opportunity to open it, the SWAT team knocked out the screen and threw in a flash-bang grenade over Carla’s head into the living room of the house. Carla testified that she would have opened the screen door had she been given the opportunity to do so.
The officers involved in the raid disputed this account. And by "dispute," I mean "basically agreed that's what happened, but with a bunch of exonerative explanations."
Sgt. Rusley claimed waited "five to ten seconds" before starting to pry off the screen door. He claimed the resident refused to open the door and walked away. Feeling the element of surprise had been compromised, he tried to regain it by sailing a flash-bang grenade into the residence. Another officer said roughly the same thing, only varying the narrative by claiming the team couldn't immediately discern what the waving of keys by the resident meant, but that the introduction of a flash-bang grenade would clear up any confusion.
This is what followed the flash-bang grenade's "appearance" on the scene:
The flash-bang grenade caught the living room drapes on fire. The SWAT team had to remove the drapes from the house and place them in the front yard before continuing through the rest of the house. The SWAT team found two-year old Z.J. in the living room. One officer acknowledged Z.J. was “very shaken from the whole situation.” The team placed Carla and Leona in zip tie restraints, but was unable to place restraints on Laverne because of her advanced age and physical condition.
Because the person at the door didn't wave the officers in quickly enough, the officers threw a flash-bang grenade into a room containing a two-year-old. Fortunately, it was only the drapes that caught fire.
Why the flash-bang? Well, habit, apparently. The SWAT team always has them, and pretty much always finds a reason to use them.
As the district court noted, the Board did not have any policy about the use of flash-bang grenades — such as when their use is appropriate and how to use them safely. One officer estimated that in executing search warrants, flash-bang grenades were used 80-90% of the time; another officer estimated that in his experience they were used about 50% of the time; and a third officer estimated they were used about 75% of the time.
The SWAT team members asked for the lawsuit to be dismissed, claiming qualified immunity shielded their attempt to set someone's living room on fire during normal warrant service. The court disagrees, finding that flash-bang grenades are rarely justified, especially in situations like these. As the court points out, a flash-bang isn't some sort of supercharged noisemaker: it's a weapon that causes very real damage.
The record evidence shows the flash-bang grenade used here is four times louder than a 12-gauge shotgun blast and emits a light 107 times brighter than the brightest high-beam vehicle headlight. It has a powerful enough concussive effect to break windows and put holes in walls. The flash-bang burns at around 5,000 degrees Fahrenheit, creating an obvious and serious risk of burning individuals, damaging property, and starting fires (as occurred here). In some cases, they can even be lethal. And as this case illustrates well, they pose a risk of traumatizing unsuspecting occupants — particularly small children like two-year old Z.J.
The court says there are cases where flash-bang use may be justified. But this case contained zero of those elements.
Whether the use of the flash-bang grenade here was reasonable is not a close question. The SWAT team knew the suspect, Charles, was already in custody. Any potential justification based on the fact Charles was (at the time) suspected of murder is eliminated by the fact the SWAT team knew they would not encounter Charles there. Nor did they have any indication that other people at the residence would pose any threat. In fact, they had no idea who was inside the house because they failed to do any investigation into that question beyond a quick drive-by to check the address. The use of a flash-bang grenade under these facts was not reasonable. “The use of a [flash-bang] grenade must be justified by the particular risk posed in the execution of the warrant.” Terebesi v. Torreso, 764 F.3d 217, 239 (2d Cir. 2014). Nor was the manner of use reasonable. They threw the flash-bang grenade into the house blindly without knowing whether children, elderly, or other innocent individuals were inside.
In defense of their blind flash-bang toss, the officers claimed there still may have been some danger present in the house. The police may have already had a suspect in custody but the sued officers theorized the homicide could have been part of a larger criminal conspiracy, which could have meant the residence housed even more dangerous criminals. The court has no time for this distended post facto rationalization.
Of course, they had no actual information to support this after-the-fact speculation. More to the point, however, this argument relies on a dangerously flawed premise. The argument that the SWAT team was justified in using a flash-bang grenade because they did not know for certain it was unnecessary is precisely backwards; it makes using that dangerous level of force the default. This type of “flash-bang first, ask questions later” approach runs headlong into the Fourth Amendment. Law enforcement officers like the SWAT team members here need an actual justification for using a flash-bang grenade; the mere hypothetical possibility that someone dangerous could be in a house they are entering — without any actual facts to indicate that is true or likely to be true — is not sufficient.
The court finds the argument that knocking and alerting the residents of the home removed the "element of surprise," forcing the SWAT team's grenade-lobbing hand.
The explanation that the flash-bang was used because the SWAT team believed it was “compromised,” meaning “that occupants of the residence knew [the SWAT team officers] were there and that [the officers] no longer had the element of surprise,” is unpersuasive. The search warrant did not authorize the SWAT team to conduct a “no-knock” warrant, and so they knocked on the front door and announced their presence, which obviously defeated the element of surprise. After all, the purpose of the constitutional knock-and-announce requirement is to allow a citizen the chance to come to the door and allow entrance to an officer who is legally entitled to enter.
The court says this is all clearly-established at this point, so no one involved in the SWAT team's flash-bang use will be able to dodge this lawsuit.
Only the plainly incompetent officer announces his presence at a house with no known dangerous people and then decides to throw in a flash-bang grenade because the occupants know he is there.
Sometimes, vague, unsupported beliefs about the dangerousness of the general public aren't enough to allow officers to dodge culpability for their dangerous decisions. This is one of those (rare) cases.
