Excessive force
In June 2012, the Evansville Police department and their SWAT team threw some flash bang grenades and busted down the glass front door of an Indiana home. They were searching for evidence of someone who had been making anonymous, threatening posts, against the police, on the internet. They terrified and arrested, with handcuffs, a 68-year-old grandmother and her—small for her age—18-year-old adopted daughter. The problem was that the only evidence they used for this raid was the fact that this grandmother's IP address, or her wifi connection, had been used.
She sued the city and the police for this act of terrorism on their part.
The city of Evansville is seeking a favorable judgment in a lawsuit brought by a local woman alleging the Evansville Police Department violated her constitutional rights when its SWAT team tossed flash grenades into her home and forced their way inside to serve a search warrant more than two years ago.
In a legal brief supporting the city’s motion for summary judgment filed Monday in U.S. District Court, city attorneys argued the force used to execute a search warrant at 616 E. Powell Ave. on June 21, 2012, was “objectively reasonable” and that officials are immune from liability.
Let's not forget how
dangerous flash bangs can be when law enforcement is incompetent in their use of them. Well, the excessive force claim was clear to
one judge. Part of what has made things easy for the judges in this case so far is that the 11-man SWAT team brought along a news camera crew! Unfortunately, that judge also said that there was nothing unconstitutional in the raid.
But District Judge William T. Lawrence of the Southern District of Indiana, Evansville Division, denied the city’s motion for summary judgment on Milan’s claim of excessive use of force and its defense of qualified immunity. Lawrence also denied the city’s motion for summary judgment on Milan’s claim against the city established under Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978).
Lawrence granted the city’s summary judgment motions on Milan’s claims of unreasonable search and seizure and false arrest/unreasonable detainment. He ruled the search was not constitutionally defective and that Milan was handcuffed only during the time of the search.
But, Judge Lawrence did acknowledge how ludicrous the SWAT raid was—how it was poorly conceived and executed.
“(T)he videos show that the SWAT team officers broke through Milan’s window and door and tossed (rather than strategically placed) the distraction devices into her home within seconds of arriving at her front door. It is questionable whether the officers had sufficient time to look inside to ensure that no one would be injured by the devices,” Lawrence wrote.
There also was little likelihood police would encounter a violent person, Lawrence wrote. “Lastly, there did not appear to be a dangerous point of entry. It was a clear day, and the front door (but not the storm door) was open when the SWAT team arrived.”
The city came back, trying to argue that the police involved are subject to qualified immunity. Well, sorry Charlie, because last week a three-judge panel decided that the Evansville police didn't qualify for [bleep]. Follow me below the fold for the SWAT video and the
8-page ruling from Circuit Judge Posner taking the police apart.
On the completely terrible police work done to justify this abomination of force:
The defendants say they didn’t know that Mrs. Milan’s network was unsecured and therefore accessible by someone outside the house who could use the unsecured network to send the threatening messages. Although the police had discovered that there was an unsecured network near the house, they hadn’t bothered to find out whose network it was, as they could easily have done, precisely because it was unsecured and therefore accessible. Had they done that they would have known that it was Mrs. Milan’s network and, since it was unsecured, that it might have been used (without her knowledge) by someone outside her home to send the threatening messages. The failure to discover that the network was Mrs. Milan’s was a failure of responsible police practice.
The search was conducted on June 21, just one day after the discovery of the posted threats. Shortly before the search, police had spotted on the porch of a house just two doors from the Milan house a man named Derrick Murray, whom they knew to have made threats against the police in the past—indeed he had been convicted of intimidating a police officer. At least two of the officers thought him the likeliest source of the threats. Prudence counseled delaying the search for a day or so to try to get a better understanding both of the Milan household and of Murray’s potential responsibility for the threats. Prudence went by the board.
How lazy and cowardly are the detectives in this case?
At the time of the search only Mrs. Milan and her daughters were living in the house. No man was living, staying, or visiting there, and police surveillance revealed no man entering or leaving between the threats and the search. Police did see daughter Stephanie come and go from the house. She happens to be small for an 18-year-old—one of the officers who saw her thought she was 13 and the other that she was 15. We’ll see that her size and apparent age are relevant to the appeal.
So: a house occupied by an elderly woman and her two daughters; no evidence that any criminals would be present during the search although the possibility could not be excluded entirely; no effort to neutralize suspect Murray during the search, as by posting police to watch his house and make sure he didn’t rush over to Mrs. Milan’s house when the search began. But despite their insouciance about Murray and the perfunctory character of their investigation before the search, the police decided to search the Milan house—and in a violent manner.
The judge makes a point of showing that this warrant which was
not a "no-knock" warrant was executed like one and that law enforcement likes using euphemisms for their clearly violent tactics.
A search warrant was applied for and obtained, and the search was conducted by an eleven-man SWAT team accompanied by a news team. The members of the SWAT team rushed to the front door of the house, knocked, and without allowing a reasonable time—more than a few seconds—for a response (though they hadn’t gotten a “no knock” warrant; see Hudson v. Michigan, 547 U.S. 586, 589 (2006)) broke open the front door and a nearby window, and through these openings hurled two “flash bang” grenades. These are explosive devices, similar to but a good deal less lethal than military hand grenades, that are intended to stun and disorient persons, thus rendering them harmless, by emitting blinding flashes of light and deafening sounds. They can kill if they land on a person, especially a child. The police call them “distraction devices,” an absurd euphemism; we called them “bombs” in Estate of Escobedo v. Bender, 600 F.3d 770, 784–85 (7th Cir. 2010), and United States v. Jones, 214 F.3d 836, 837–38 (7th Cir. 2000).
The judge moves into what we all can see with our own eyes—the absolute ridiculousness of handcuffing the 18-year-old once inside.
The search of her home was videotaped both by the accompanying news team and by a camera mounted on the helmet of a member of the SWAT team. The members of the team are seen on the tapes impressively clad in body armor and big helmets and carrying formidable rifles pointed forward. It would take a brave criminal to try to fight it out with them, and of course there was no criminal in the house and little reason to expect one to be there. The handcuffing of the daughter, looking indeed much younger than her 18 years, is shown on the helmet video along with the rest of the search, and she is so small, frail, utterly harmless looking, and completely unresisting that the sight of her being led away in handcuffs is disturbing. All that the SWAT officer had to do was take her by the hand and lead her out of the house, which was rapidly filling with smoke from the flash bangs; there was no conceivable reason to handcuff her. From what we can observe on the videos, all the members of the SWAT team were white, Mrs. Milan and her daughter black; the broadcasting of the videotape cannot have helped race relations in Evansville.
The final blow to cops immunity:
So while the defendants are correct to point out that a reasonable mistake committed by police in the execution of a search is shielded from liability by the doctrine of qualified immunity, Anderson v. Creighton, 483 U.S. 635, 641 (1987), in this case the Evansville police committed too many mistakes to pass the test of reasonableness.
Read the whole decision
here. It's one of the great pieces of writing from a judge in a case like this that I've ever seen.