Cops Sued Over Bogus SWAT Raid Predicated On A ‘Find My Device’ Ping

Legal Issues

from the all-this-for-some-missing-AirPods dept

Just recently, we covered a case involving a bogus raid of someone’s home based on nothing more than a ping from Apple’s ‘find my device’ feature. The Denver (CO) PD’s SWAT team raided the home of 77-year-old Ruby Johnson, destroying her garage door and some ceiling panels (?) in the process. The raid was predicated on a “find my device” ping from the owner of an iPhone that had been stolen along with their pickup truck.

The SWAT team made a mess, but it failed to recover any of the stolen property it was looking for. And the ping sent to officers by the theft victim showed an area that included five other homes in the same neighborhood. Johnson sued and was awarded nearly $4 million in damages by a jury.

Here we go again: another lawsuit filed by victims of a SWAT team raid predicated on nothing more than a “find my device” ping.

County police were investigating a carjacking May 26, 2023, when they used Apple’s “Find My” feature to track a pair of AirPods that were taken in the stolen car to the 1000 block of Wylin Court, the lawsuit says.

It took them to the home of Lindell Briscoe and Brittany Shamily, who were disturbed by SWAT officers banging on the door at around 6:30 p.m. A group of heavily armed officers used a battering ram to break the door and escorted Briscoe, Shamily and their five children outside, where they waited for 30 minutes. Police found nothing about the carjacking but eventually located the AirPods on the street, the lawsuit says.

Given the result of the lawsuit stemming from the 2022 Denver incident, one would expect St. Louis County to get its checkbook out in the near future.

As the lawsuit [PDF] points out, there’s a dearth of probable cause in the search warrant application, other than Detective Joseph Percich’s insistence that the location shown on the device ping could only indicate the interior of this particular residence.

At para. 6 the Affidavit states that “a witness and friend to the victims”, D.B., stated that his Apple AirPods were in the Charger, and the Affidavit further stated that this witness “assisted investigators” by using the “FindMy” application, and that “after a short time the stolen AirPods were determined to be at the home of 1022 Wylin Court, St. Louis, MO 63135.”

If the detective had more information than that, he apparently didn’t feel like it was worth sharing with the magistrate judge. And the magistrate judge was apparently equally unbothered by this lack of information, leading to a SWAT raid of a home containing zero stolen goods, but seven innocent people (including five children, one of whom is an infant).

(As a general note, law enforcement officers are supposed to use less violent means of entry when there’s evidence that children, especially very young ones, might be inside the house. They rarely take these precautions, however, which is how infants end up burned by flashbang grenades and other impressionable children develop a deep distrust of police officers.)

Lots of stuff that should have gone into this warrant application just isn’t there. And it’s likely not there because the involved officers didn’t take any of the steps they should have taken. If they had, this application would have had a lot more supporting information.

There is no indication that any investigating officers had training or knowledge regarding the accuracy of the FindMy App.

There is no indication of the meaning of “at the home,” that is, whether the Affiant or Defendant Officer Percich meant the App showed that the AirPods were on the street in front of the Plaintiffs’ home, or whether the AirPods were within the home at that address, in the yard of that home, in the street in front of that home, or at or near a neighboring house or neighboring yard.

Within the Affidavit there is no image of the FindMy map on which the police purportedly relied in determining the location of the AirPods.

There is no indication whether the App showed a blue circle around any particular area, which the FindMy App sometimes shows, or, if so, the area encompassed by any such blue circle.

The “blue circle” referred to here looks like this, and it may be bigger or smaller depending on how precise the location data is. (This was included in Johnson’s lawsuit against the Denver PD.)

There are other problems with the affidavit as well. The affidavit claims the house the SWAT team raided was apparently placed under surveillance at some point, but no information is given when the surveillance of the home started, how long it lasted, or if the officers watching the house noted anything that might have led them to suspect stolen goods would be found there.

The affidavit makes no mention of the fact that everyone involved in the car theft had already been apprehended and gave no indication they stopped anywhere to offload anything from the interior of the car. In fact, officers should have already known nothing like this happened, since a pursuit was initiated and ended with the driver crashing the stolen car nearly 6 miles away from the house the SWAT team raided.

There’s a two-hour gap between the carjacking and the recovery of the stolen vehicle, but nothing said about whether the supposed “surveillance” of the residence occurred between those hours. There’s also nothing in the application that would denote any connection between the four apprehended suspects and this residence.

There’s a lot of crucial information missing here. A second court is now going to get a chance to look at this seriously deficient affidavit and, chances are, it’s not going to be given a thumbs up by the federal court. And if there’s no probable cause to support a search — much less the raid of a home by a SWAT team — then everything that happened here is a rights violation.

While the “find my device” feature can be useful in locating stolen or lost devices, law enforcement officers, who always refer to themselves as being filled to the brim with “training and expertise,” should know better than presenting imprecise location data as probable cause for a search. It can be part of the probable cause but it shouldn’t be the entire thing.

Filed Under: brittany shamily, find my phone, lindell briscoe, missouri, st. louis, st. louis police, swat team

Grandmother Awarded Nearly $4 Million Over SWAT Raid Predicated On A Faulty ‘Find My Phone’ Ping

Legal Issues

from the coarse-location-followed-by-coarse-shouting dept

In January 2022, 77-year-old Ruby Johnson’s house was raided by the Denver Police Department. Supposedly seeking a stolen vehicle and several guns, the SWAT team descended on Johnson’s house. The officers ordered anyone inside to come out of the house. Johnson complied, but that didn’t stop the SWAT team from attempting to destroy her house to find the contraband it was sure was located inside the home (which I guess includes the “stolen truck”). The SWAT team, with the home’s only resident in its temporary custody, proceeded to destroy her garage door with a battering ram, smash some ceiling panels (?), destroy some of her belongings, and otherwise leave her house in disarray.

The warrant was predicated on little more than a ping produced by Apple’s “Find My iPhone” feature. That ping (initiated by the victim of the truck and phone theft) managed to narrow down the location of the stolen phone to at least six homes in the neighborhood. This location data isn’t always precise. The precision depends on the settings applied by the device owner and, unless the phone is set to always share its location, the location provided by this feature is an approximation that can be off by dozens or hundreds of feet.

The Denver PD used the screenshot of the victim’s “Find My iPhone” search results to support its search warrant. This was pretty much the only so-called probable cause offered by the Denver PD before it raided this home.

Using little more than this information (a ping that originated more than nine hours before the PD initiated its investigation), the PD raided Johnson’s house. (The cherry on top of this cavalcade of errors was Officer Gary Staub’s warrant affidavit, which offered sworn statements that the find my phone pings had actually been initiated in 2021, more than year before this investigation was instigated.)

Date errors aside (this was the first month of 2022 after all), the affidavit made speculative claims about the accuracy of this iPhone feature and, without offering any supporting evidence, swore the only place this stolen phone could currently be located was Ruby Johnson’s residence.

All of this was not only stupid, but unconstitutional. There was no probable cause to support this search. On top of that, Detective Gary Staab had misled the court by portraying the find-my-phone pings as providing precise location data when, in fact, the feature was only capable of providing approximate location data — something the detective would have known if he’d bothered to dig a little deeper into the feature (or had used any of the “training and expertise” cited in his warrant request).

Normally, this lawsuit would have had to surmount the massive barrier erected by years of qualified immunity jurisprudence. But, thanks to a law passed in 2020, Colorado residents can sue police officers in local courts for constitutional violations, making it a bit more difficult for law enforcement officers to prematurely exit lawsuits containing credible allegations of rights violations.

The end result, as the ACLU (which represented Johnson in this case) reports, is a much-deserved payout to Johnson. It’s not even a hastily crafted settlement pushed out in hopes of stopping the bleeding before it gets worse. A jury awarded this to Johnson, agreeing with her and her reps that this raid (and the events leading up to it) was a severe violation of her rights.

In a precedent-setting decision under a new statute allowing enforcement of the Colorado Constitution, a Colorado jury awarded $3.76 million in damages to Ruby Johnson, a 78-year-old Montbello grandmother, on Friday after concluding that Denver Police Department (DPD) Detective Gary Staab and DPD Sergeant Gregory Buschy violated the Colorado Constitution by hastily seeking, obtaining, and executing a search warrant of her home without probable cause or proper investigation. The jury’s award included both $1.26 million in compensatory damages and $2.5 million in punitive damages after concluding that the officers acted with willful and wanton disregard of Ms. Johnson’s constitutional right to be free from an unreasonable search and seizure.

Not that we should expect this payout to make the Denver PD any less likely to violate rights in the future. The state law that allows these lawsuits may deter some abuse and misconduct, but the officers sued in this case have already been cleared of any wrongdoing by their employer.

[A] spokesperson for the department said in an email on Tuesday, an internal affairs review of the incident resulted in no formal discipline for the officers. Staab and Buschy remain employed with the department, the spokesperson said.

The good news is Johnson is being compensated for the pain, suffering, and physical damage to her house. The better news is Colorado residents don’t have to tangle with cop-friendly federal courts to hold officers accountable. But the “this isn’t even news” part of this is the fact that police departments continue to protect misbehaving officers. And, for the most part, the tab rung up by the Denver PD will be paid by taxpayers who had nothing at all to do with this regrettable, completely avoidable string of rights abuses.

Filed Under: denver police, find my phone, gary staub, police raid, ruby johnson, swat team

Fifth Circuit: The Government Doesn’t Need To Pay You For The Home It Destroyed To Effect An Arrest

Legal Issues

from the law-enforcement-is-our-most-troublesome-invasive-species dept

“By any means necessary” has been determined to be the same thing as “minimal intrusion” by far too many courts. When cops are searching for suspects, they’re pretty much free to destroy anything that stands between them and their (wanted) man, even if it means a wholly innocent house gets leveled in the process.

It’s one thing when cops are seeking a fugitive or suspect at a place where they actually reside. It’s a bit different when cops pursue a suspect who then seeks refuge in a home owned by someone else — someone who clearly has no desire to harbor a fugitive.

You’d think that would factor into the force equation. But it never does. What happens is this: the inanimate objects that make a house a home — doors, walls, windows, roofs — are treated as obstructers of justice, something to be subdued or eradicated. Battering rams, flashbangs, assault vehicles, shotgun shells are all deployed to ensure the house cannot continue to harbor a fugitive.

And sure, that might mean something if it was the fugitive’s home. At that point, the responsibility most likely lies with the criminal suspect. But when it’s an innocent homeowner (and an innocent homeowner) caught in the crossfire, the calculation somehow doesn’t change.

McKinney, Texas resident Vicki Baker is one the unfortunate people who’ve seen their homes destroyed by government employees who don’t care what they destroy en route to getting the job done. Baker fired her handyman, Wesley Little, in 2018. Nothing more came of that until July 2020, when Wesley Little decided to return to this house to hide out after being wanted by law enforcement for the abduction of a 15-year-old girl.

Baker’s daughter answered the door when Wesley rang, choosing to exit the premises and call the police because she had seen news reports identifying him as a kidnapping suspect. This good deed did not go unpunished.

SWAT agents soon arrived. They set off explosives to open the garage entryway, detonated tear gas grenades inside the building, ran over Baker’s fence with an armored vehicle, and ripped off her front door, despite being given a garage door opener, a code to the back gate, and a key to the home. The house was unlivable when they were through.

Vicki Baker sued. And for good reason. In addition to her daughter informing cops about the location of their kidnapping suspect, Baker provided officers with plenty of options that didn’t involve destroying her home. The officers used none of the non-violent options and chose to decimate Baker’s home to apprehend the suspect.

The district court said this completely foreseeable outcome of these actions did not permit the city to escape Baker’s lawsuit. Inadvertent damage is one thing but damage deliberately caused despite a wealth of less-damaging options is something else. It allowed Baker’s lawsuit to continue.

Baker has sufficiently pleaded a takings claim under the Texas Constitution. The actions taken by the Department officers damaged Baker’s home—that much appears undisputed. Even if the government did not intend to damage Baker’s property to apprehend Little, the City was substantially certain such damage would result. It is unreasonable for the City to suggest the Department officers stormed Baker’s house, broke the windows, knocked down the garage door, rammed down the backyard fence with a tank-like vehicle, and fired dozens of explosive tear gas cannisters into the home without a degree of certainty that such actions would cause damage to the property. As such, and after considering the pleadings and case law cited above, the Court finds Baker has sufficiently pleaded a violation of Article I, § 17 of the Texas Constitution as to survive a Rule 12(b)(6) motion to dismiss.

The city appealed. And that case landed in the cop-friendliest appellate district in the nation: the Fifth Circuit. You can already see where this is headed, but here’s the Fifth Circuit spelling it out in the intro to its decision [PDF]:

We conclude that, as a matter of history and precedent, the Takings Clause does not require compensation for damaged or destroyed property when it was objectively necessary for officers to damage or destroy that property in an active emergency to prevent imminent harm to persons. Baker has maintained that the officers’ actions were precisely that: necessary, in light of an active emergency, to prevent imminent harm to the hostage child, to the officers who responded on the scene, and to others in her residential community. Accordingly, and despite our sympathy for Ms. Baker, on whom misfortune fell at no fault of her own, we REVERSE.

Note that first sentence: this is both historical and precedential. This means the Fifth Circuit has created a rule that explicitly allows police officers to destroy personal property so long as they can claim there was a law enforcement reason to do so. Future litigants in Baker’s unfortunate decision will find themselves in an even more disadvantageous position, thanks to this ruling.

But the reasoning is flawed, starting with the cops’ own justification. By the time they surrounded the house, there was no possibility of “imminent harm to the hostage child.”

Soon after, Little released the girl and she exited the house.

All they had now was a fugitive, albeit one the now-released 15-year-old assured cops had access to “long guns” and was “obviously high on methamphetamine.” While this person may have been privy to the location of guns stored in Baker’s house, it’s highly unlikely she told cops (at least not in these exact words) Little was “high on methamphetamine.”

That’s neither here nor there, though. Whatever was said or unsaid, the cops chose their plan of action, and that plan involved destroying the house despite being given access and an open invitation to enter the house through a variety of entrances.

There are also obvious gaps in the officers’ testimony, even if the Fifth Circuit is unwilling to examine that issue any further.

Little somehow “communicated to” police that he “had terminal cancer, wasn’t going back to prison, knew he was going to die, was going to shoot it out with the police.” Police proceeded to use explosive devices, the BearCat, a T-Rex (similar to the BearCat), toxic gas grenades, and a drone to try to resolve the situation. After some time, the drone was able to reach a vantage point to see that Little had taken his own life.

No further information is given about this supposed death wish. Nor is there much on the record that supports the Fifth’s extremely exonerative presentation of this home invasion — that all of this destruction was necessary to “resolve the situation.” That the suspect had already committed suicide suggests the cops could have “resolved” this without destroying Baker’s home. And, while I understand courts aren’t there to second-guess law enforcement, this one could have at least taken a longer look at this unsupported “death by cop” assertion.

None of that gets attention. And the Fifth Circuit, relying on the plaintiff’s acknowledgment some level of damage may have been necessary to locate/apprehend the suspect, overlooks the side effects of this destruction, even while quoting the lower court’s assessment of this needlessly violent raid:

The explosions left Baker’s dog permanently blind and deaf. The toxic gas that permeated the House required the services of a HAZMAT remediation team. Appliances and fabrics were irreparable. Ceiling fans, plumbing, floors (hard surfaces as well as carpet), and bricks needed to be replaced—in addition to the windows, blinds, fence, front door, and garage door. Essentially all of the personal property in the House was destroyed, including an antique doll collection left to Baker by her mother. In total, the damage . . . was approximately $50,000.

Oh well, shrugs the Fifth Circuit. That’s the price Baker has to pay for availing herself of government services, even if she was in no way culpable for this fugitive’s decision to (temporarily, it turns out) hide out in her home.

In sum, history, tradition, and historical precedent reaching back to the Founding supports the existence of a necessity exception to the Takings Clause. Today, we make no attempt to define the bounds of this exception. We hold only that in this case, the Takings Clause does not require compensation for Baker’s damaged or destroyed property because, as Baker herself claims, it was objectively necessary for officers to damage or destroy her property in an active emergency to prevent imminent harm to persons. We need not determine whether the necessity exception extends further than this.

In other words, if you agree to be governed, render under Caesar what is Caesar’s (even if it’s your home) and unto God, God’s. But unto the rest of us, what exactly? Citizens render and/or are rendered. You can simultaneously agree cops needed to perform some destruction to arrest a criminal without ceding that they can engage in as much destruction as possible when affecting arrests. And if the government wants to tax you for the services rendered, it can. But it should also be willing to pitch in when it comes to cleaning up the messes it’s created.

None of that’s going to happen here, even if the Fifth Circuit is sympathetic to Baker, if not her actual legal arguments. It notes that the Takings Clause has been interpreted to read that no individual should be forced to bear the costs of government actions that should be borne by all. Despite that, it still arrives at the conclusion that Baker alone should pay for the damage caused by the government. And that’s the baseline affirmed and established by the Fifth Circuit in this decision, which means cops in the Fifth Circuit won’t be dissuaded from engaging in needless destruction of personal property for the foreseeable future.

Filed Under: 5th circuit, mckinney, swat team, texas, vicki baker, wesley little

Texas SWAT Team Destroys Home While Searching For The Wrong Person At The Wrong Address

Legal Issues

from the nothing-says-badass-like-a-self-inflicted-black-eye dept

To be sure, SWAT operations are pulled off flawlessly around the nation every day. The right addresses are hit. The right windows are smashed. The right doors are destroyed. The correct perps are arrested. The proper people are filled with bullets if needed, etc.

But, far too often, they go wrong. Often more concerned with delivering an awesome show of force than handling things professionally, SWAT teams do all the wrong things: wrong houses, wrong people, senseless destruction of people’s homes, extended standoffs with houses containing nothing but the family dog or, in one case, a house containing nothing but nothing.

When it’s all said and destroyed, the invaders leave. Those who remain are left to clean up the mess created by the cops, whether or not officers actually managed to get their man. Here’s another data point for the case against violent entries by law enforcement, provided this time by the Galveston Police Department. (via FourthAmendment.com)

Members of an island family assert they were injured and traumatized and their house wrecked by a SWAT team searching for a homicide suspect who wasn’t there and who was later cleared of involvement in a shooting death.

The police department argues the team was only following its training when it raided a house in the 5300 block of Avenue O, shattering windows with “flashbang” devices, kicking in doors and ripping out wires.

Erika Rios, her 16-year-old son, her 18-year-old daughter and her daughter’s 16-year-old friend, were asleep about 2 a.m. Sunday when the children awoke to the megaphone-amplified sound of Galveston Police Department’s SWAT unit announcing its arrival, Rios said Thursday.

You’ll notice a lot of really wrong things happening here. First, the suspect wasn’t supposed to be a suspect. Second, the best defense the cop shop could offer was basically “just following orders.” Third, the raid was performed at 2 a.m., which is generally considered to be an “unreasonable” (in the constitutional sense of the word) time to be performing warrant service.

Rios and the children were forced to walk shoeless across broken glass by the SWAT team. Rios and her son were both handcuffed. The supposed suspect, Cameron Vargas, had left the house more than two hours earlier.

And, as if all of that wasn’t terrible enough, there’s more.

After police had cleared the house of all occupants, officers continued to break garage windows with a wooden stick, Rios said.

An officer ripped out two cameras in her living room and kitchen, but she still had one that captured the whole raid, Rios said.

“When the officer found the other camera, he started laughing and said, ‘who keeps cameras in their living room,’” Rios said.

The first is just a form of bullying, destroying something of value just because you can. The second part is extremely disturbing, suggesting officers wanted only one narrative — theirs — to survive.

Here’s Police Chief Doug Balli’s official shrug at the thousands of dollars of damage his officers caused.

“SWAT is trained in a specific way to raid a home, which includes working from the outside in,” Balli said. “They need to ensure there is no threat to themselves.

“Police work is inherently dangerous and anytime we have a warrant, we do a threat assessment and since this was related to a murder case, the risk to ourselves increased.”

Bullshit. Police work can be dangerous but it isn’t inherently dangerous. Whatever “threat assessment” the PD performed prior to this raid didn’t manage to take into account the person they were seeking had been falsely accused of the crime. It didn’t take into account the fact that the wrongly accused suspect didn’t live at that address. If the PD had performed any surveillance prior to warrant service, it would have discovered both of these facts, saving the Rios family the terror and wanton destruction inflicted on them at 2 in the morning.

The attorney representing the family claims the PD did know the suspect was no longer in the home when it carried out the raid. SWAT officers then tried to make the raid about something else when they failed to find the suspect they allegedly knew had vacated the premises two hours earlier.

Buzbee asserted police knew Vargas’ whereabouts before they carried out the raid and told the Rios family they were searching for “guns and drugs.”

“They later tell your daughter that they are looking for ‘guns and drugs’ but the arrest warrant being executed is for a particular person accused of a crime who doesn’t even live at the address and isn’t a family member,” [attorney Tony] Buzbee said. “You later learn the police knew the actual whereabouts of the, actually innocent, ‘perp’.”

This has led to the police chief being briefly sidelined while city officials try to repair the damage done to their poker faces.

Police Chief Doug Balli is on paid administrative leave for no more than 10 days after city leaders were blindsided with news about a SWAT raid that terrified a family and did an estimated $5,000 in damage to their home, City Manager Brian Maxwell said Saturday.

“There was a major breakdown in communication and we want to figure out why the city was not in the loop,” Maxwell said. “This decision was solely based on the lack of communication and not related to the raid.“

Um, what? The lack of communication is directly related to the raid. City officials first learned about the raid when the Galveston County Daily News published its article. You can’t pretend one doesn’t have anything to do with the other. This internally incoherent statement is probably the right one to make, though. It refuses to admit any wrongdoing by the police department or its city oversight by pretending the raid was completely above-board, even if it targeted an innocent family’s home, rather than the home of the (actually innocent) murder suspect.

But Maxwell may have overstepped here.

To be reimbursed for the damage to her home, Rios would have to speak to the city’s risk manager and fill out forms, Maxwell said.

The city’s insurance would cover the cost, he said.

I certainly hope he’s talked to the city’s insurer. Most won’t cover stuff like this because it’s considered to be damage lawfully created in the course of legitimate police work, which means there’s nothing for the city to be held liable for. But if Maxwell wants to set this precedent, he should. And maybe the inevitable insurance rate hike will be enough to deter excessive deployments of the PD’s Excessive Force Squad.

Filed Under: 4th amendment, brian maxwell, doug balli, flashbang, galveston, galveston pd, raid, swat team, texas

Denver PD Sued After SWAT Team Raid Of 77-Year-Old Woman’s House Based On Nothing More Than Phone Pings

Failures

from the lots-of-enthusiasm,-zero-due-diligence dept

Once again, law enforcement’s enthusiasm for violent warrant service has combined with its disinterest in responsible policing to result in a civil rights lawsuit. Here’s how that all played out, as reported by The Denver Post. (h/t Techdirt reader BentFranklin)

Ruby Johnson, 77, is afraid to be alone in the house where she’s lived for 40 years because of Denver police.

Denver police officers dressed in military-style SWAT gear on Jan. 4 descended on Johnson’s Montbello home to serve a search warrant. Johnson, in her bathrobe, opened her door when an officer on a bullhorn told anyone inside to come out. Officers carrying rifles stood on her lawn next to an armored tactical vehicle. One officer held the leash of a German shepherd K9.

Once inside her home, Johnson said, they smashed a door to her garage with a battering ram, broke apart a ceiling panel, broke the head off of a beloved collectible doll and left the house in disarray.

They were looking for a stolen iPhone that had pinged near her home. The iPhone was believed to be inside a stolen truck along with several guns. But police found nothing inside Johnson’s home.

The Denver Police Department — like plenty of other police departments around the nation — has its problems. This is only one of them.

The raid was predicated on “Find My iPhone” pings reported to the police by the cell phone’s owner. The location data provided by these pings is coarse, at best. As is pointed out in Johnson’s lawsuit, the ping radius covered several properties in the neighborhood. Yet the police believed Johnson was housing stolen goods and pulled the trigger on a search warrant.

That’s not the only problematic aspect of this so-called investigation. Prior reporting on the raid by KUSA exposed other issues with the events leading up to this raid — issues that are definitely going to cause problems for the Denver PD as it defends itself against this lawsuit.

The theft victim who delivered the “Find My iPhone” data to the PD felt officers weren’t taking the investigation seriously, despite him reporting stolen guns in addition to the vehicle and iPhone.

[Jeremy] McDaniel said he didn’t think police treated his case with urgency, even after he told them about the stolen guns. He said he was on hold with DPD for 45 minutes and had difficulty getting them to check possible leads on the day his truck and guns were stolen.

[…] 

He said he alerted police multiple times about other opportunities found through Find My iPhone to look for the stolen truck, but he felt police “blew us off,” even after he told them the guns that were inside the truck. The iPhone stopped for an hour at a McDonald’s and a 7-Eleven, but police did not go look for the truck. 

“They said ‘Sorry, we just don’t have the manpower to check it out,’ even though there’s guns in it and all kinds of stuff,” McDaniel said. He said the police didn’t seem to care after he notified them of the theft. 

So, cops spent a day doing nothing before suddenly deciding a warrant needed to be sought and executed. No further surveillance of the property occurred before the warrant was executed. Despite having a day to determine whether this home was the best potential target for a search (given that the location data provided by McDaniel covered several nearby homes), the Denver PD performed a SWAT raid that involved cutting locks, bashing in a door, and the tossing of several rooms, despite having full compliance of the 77-year-old homeowner, as well as instructions on how to unlock and open the doors officers later destroyed.

The lawsuit [PDF], filed with the assistance of the ACLU of Colorado, provides more details on the lack of due diligence performed by the PD prior to the search, as well as the swearing officer’s misrepresentation of the “Find My iPhone” data provided by the theft victim. The affidavit presented the data as identifying Johnson’s home as the source of the pings, despite the included screenshot showing an area encompassing six different homes and two city blocks. The affidavit also, for some reason, failed to mention the $4,000 McDaniel said was in the stolen truck, instead referring solely to the guns, phone, and other items listed by the vehicle owner.

The PD can’t have it both ways. It can’t blow off a theft victim for nearly a day and then spend less than four hours securing a warrant and engaging in a SWAT raid. At some point, the PD needs to perform some actual investigation, something that might have made it clear Johnson’s home was not the only potential target and possibly might have eliminated her residence as a target altogether.

Hopefully, the city and its officers won’t be able to escape this lawsuit. A hasty and careless “investigation” resulted in the partial destruction of a person’s home and a complete destruction of their trust in their public servants. When citizens are in the wrong, they’re expected to make things right. But when cops get things wrong, it’s the people they serve who are expected to live with the results of their errors.

Filed Under: denver, denver police department, find my phone, location info, ruby johnson, swat team

Minneapolis Man Acquitted Of Charges After Mistakenly Shooting At Cops Sues Officers For Violating His Rights

Legal Issues

from the but-for-the-cops'-own-video dept

It’s not often a citizen shoots at a cop and lives to tell about it. It’s even rarer when they walk away from criminal charges. When it’s considered “assault” to be anywhere in the general location of an angry cop, actual shots fired tend to be greeted with severe charges. Acquittals are unicorns in the court system, which largely tends to believe people who shoot at cops always have zero justification for their actions.

One black Minnesota resident has bucked the odds. Jaleel Stallings was arrested after he fired his gun three times at Minneapolis police officers during protests following the murder of George Floyd by Officer Derek Chauvin. Without further facts, one would assume Stallings was part of the problem, a violent protester willing to kill or injure police officers.

But the facts are in. And they are ugly. Stalling, represented by Eric Rice, was able to secure an acquittal thanks to some extremely damning body camera footage recorded by the officers he shot at. The footage was captured by officers in an unmarked van that were driving into areas “enforcing” curfew by shooting rubber bullets at random people on the street from the moving vehicle. That recording can be viewed here.

Deena Winter has an amazing write up of the recording’s contents at Minnesota Reformer. It shows cops aggressively targeting people doing nothing more than violating a curfew order. The officers in the unmarked van trolled Lake Street, looking for victims to absorb their violent policing, apparently in retaliation for having to endure ongoing protests triggered by other violent actions by other violent cops.

Here’s just a taste of what the recording contains:

Before the white, unmarked cargo van of the Minneapolis Police Department drove down Lake Street, an officer gave Sgt. Andrew Bittell his orders: “Drive down Lake Street. You see a group, call it out. OK great! F*** ’em up, gas ’em, f*** ’em up.”

Bittell turned to his SWAT unit in the van and said, “Alright, we’re rolling down Lake Street. The first f***ers we see, we’re just hammering ’em with 40s,” according to body camera footage described in court documents. He was referring to “less lethal” plastic projectiles sometimes called rubber bullets or 40mm launchers or rounds.

The SWAT team headed down Lake Street, trying to lure Minneapolis residents closer to the van so their shots could do more damage. Sgt. Bittell and his supervisor urged each other on, cheering on successful shots and expressing their disappointment when shots failed to connect. During this shooting spree, the SWAT team opened fire on a gas station owner and his friends who were helping protect the business from looters. They also shot a Vice News reporter who had his hands up and was shouting “Press” as the officers opened fire.

Eventually, the officers worked their (violent) way to Jaleel Stallings, who understandably thought he was being shot by violent non-cops:

About an hour later, three blocks to the west, they opened the sliding door of the van and began firing plastic rounds at people in a parking lot.

They hit Jaleel K. Stallings, 29, a St. Paul truck driver, who says he didn’t know they were cops because they were inside an unmarked white cargo van with the police lights off. He thought they were real bullets. And, he says he was mindful of warnings earlier that day from no less than Gov. Tim Walz that white supremacists were roaming the city looking for trouble.

Just as understandably, Stallings, a military veteran, returned fire with his fully legal pistol. He fired low towards the front of the van and dropped to the ground behind his truck. Almost immediately after firing, Stallings realized police officers were in the van. This realization was driven home by multiple officers swarming the man — who was prone, face down on the ground with his pistol out of his reach, a move he made voluntarily when he realized the unmarked van was operated by the Minneapolis PD.

None of this mattered to the SWAT team, which greeted mistaken violence with deliberate violence. This was the end result of that violence:

Court documents describe bodycam footage that show he dropped his gun on the ground and lay face down, with his hands to the side above his head, as though he was surrendering.

He didn’t move for 20 seconds as the officers approached.

“You f***ing piece of shit!” Stetson yelled, and began kicking and punching Stallings in the head and neck, according to court documents.

Stallings didn’t move. He was trying to surrender and de-escalate the situation, he said in an interview.

Bittell began kneeing and punching Stallings in the stomach, chest and back. The beating went on for about 30 seconds — with Bittell and Stetson punching and kicking Stallings in the head, neck, stomach, chest and back.

Midway through the beating, Stetson told Stallings to put his arms behind his back, and after handcuffing him, Bittell sat him up and kicked him in the ribs as Stetson continued hitting him in the head.

In summation, from the Minneapolis Star Tribune report:

The beating left Stallings with several injuries, the lawsuit said: a fractured eye socket, bruising, trauma, paranoia and anxiety. He had also been shot in the chest with a marking round, which resulted in labored breathing, the suit said.

This was the other aftermath:

Following the May 30 incident, Stallings was charged with second-degree attempted murder, first-degree assault, second-degree assault and second-degree riot, among other counts.

That’s how the state responded to provoked violence triggered by officers’ unprovoked violence. Prosecutors offered him a plea deal that would have netted him a 13-year prison term but he fought the charges. Prosecutors kept trying to punish him for reacting to the PD’s (unmarked) violent actions but the jury didn’t find the cops sympathetic. They likely didn’t find them believable either.

Back to Deena Wilson’s coverage of this case, which also includes a detailed look at the contradictory testimony (you know… LIES) offered by SWAT team members, who had to do some hasty revisions on their sworn statements once Stallings’ lawyer obtained body cam footage.

The complaint said officers “deployed one 40-mm round at Stallings” even though officers fired two rounds before Stallings returned fire.

Stallings “quickly ran away” and was handcuffed “after a struggle,” according to a press release issued by Hennepin County Attorney Mike Freeman, who said Stallings was charged for “shooting at police officers amidst riots and protests” and “firing multiple shots at SWAT officers during riots.”

“None of the officers, nor Stallings, were injured,” the release said, even though Stallings’ bruised, scraped face on his mugshot clearly indicates otherwise, and he was taken to a hospital after his arrest.

[…]

Stetson acknowledged he never told the investigating officers he shot Stallings, or that he called him a “f***ing piece of sh**” and kicked him in the head four times.

“He had just shot at us; we needed to have full control over him before we do any sort of interview,” he testified.

Asked why he continued to beat Stallings even after both his hands were behind his back, Stetson said Stallings wasn’t complying with him.

“Again, emotions were high, I just shot — got shot at. I thought I was going to die.”

The testimony may have contained even more “contradictions” (it’s pronounced “LIES”) but the Minneapolis PD unanimously decided to stop creating incriminating evidence against itself.

About nine minutes after the shooting, the unit was ordered to turn off its body cameras.

Now, the Minneapolis PD is being sued for rights violations. The filing of this lawsuit [PDF] against these officers immediately followed Stallings’ acquittal. If you think anyone covering this is giving you an overwrought depiction of these officers, their actions, and their attitudes, keep in mind these depictions contain direct quotes from police recordings… quotes like these (from Stallings’ lawsuit):

After protesters moved away, Sgt. Bittell instructed officers to “wait” and “draw [the protesters] in.” He wanted protesters to come closer to the line of officers so that officers could shoot the protesters with 40mm rounds.

[…]

Officer Stetson fired a 40mm round and struck a distant civilian. Officers Stetson yelled “gotcha” at the civilian that he had struck. Other officers laughed and congratulated Officer Stetson. Officer Dauble gave Officer Stetson a fist bump.

[…]

Lt. Mercil mocked journalists who had been covering the protests. […] Lt. Mercil expressed encouragement and approval to Officer Osbeck regarding improper use of force toward journalists and others.

[…]

Sgt. Bittell met Unit 1281 officers by their van. Sgt. Bittell told his team about their mission: “We’re rolling down Lake St. The first f***ers we see, we’re just handling them with 40[mm rounds].” Sgt. Bittell asked his team if that was a “good copy.” Unit 1281 officers responded with laughter and enthusiasm.

[…]

A Unit 1281 officer joked about “hunting” civilians that evening.

[…]

The officer complained that civilians were “p*****s” and explained that “[officers] get within thirty feet of [civilians] and they run.” Sgt. Bittell agreed and responded, “Exactly, you got to hit them with the 40[mm rounds].”

Blessed are the peacemakers, said Jesus. These officers aren’t getting free pass to the better parts of the Kingdom of Heaven, however. These officers weren’t trying to keep the peace. They were out joyriding, attempting to inflict pain in retribution for four nights of protests and looting. These officers willfully forgot what triggered the protests and violence, and decided it was their turn to inflict misery, forgetting that the constant infliction of misery over decades led to the flashpoint that made them (very briefly) feel like the underdogs.

While it’s heartening to see Stallings acquitted by a jury of his peers, his lawsuit is far less likely to succeed. Even with all of their lies, the officers will likely be able to justify their actions with claims they feared for their safety — a fear enhanced by four straight nights of often violent protests. What they may not be able to explain away so easily is their decision to continue beating an unarmed man who threw away his weapon and immediately surrendered to officers — something captured by a nearby CCTV camera. The arrest may have probable cause backing it but the violence preceding the arrest isn’t so easily explained.

And, so far, the officers involved in this rolling shooting gallery have yet to be disciplined by the Minneapolis PD, which means the department implicitly approves of officers using the streets of the city as a shooting gallery, especially if it allows officers to vent a little frustration and anger at the public’s unwillingness to ignore yet another murder of an unarmed black man by white police officers.

Filed Under: jaleel stallings, minneapolis, police brutality, police shooting, swat team

Chicago PD Oversight Says Officers Racked Up 100 Misconduct Allegations During A Single Wrong Address Raid

Legal Issues

from the you-have-to-be-impressed-by-the-efficiency dept

More than two years after Chicago police officers terrorized a naked 50-year-old social worker during the raid of a wrong address, the PD’s independent oversight — the Civilian Office of Police Accountability (COPA) — has issued its report. How much of it will result in actual discipline remains to be seen, but there’s a whole lot of misconduct to be had. (via FourthAmendment.com)

COPA’s investigation led to more than 30 interviews including officers, civilians, a member of the judiciary, an assistant state’s attorney and the Cook County Sheriff’s Department, as well as the review of hundreds of pages of documentary evidence and hours of video material relevant to this incident. The investigation produced nearly one hundred allegations of misconduct stemming from the actions of more than a dozen officers.

Anjanette Young’s house was raided in February 2019. CPD officers bashed down her door just as she was headed to bed. Here’s COPA’s clinical description of that encounter, which still makes it pretty clear how traumatizing it was.

COPA’s investigation revealed that within entry to Ms. Young’s home, she was naked and immediately handcuffed. Within approximately 31 seconds after entry, an officer attempts to cover Ms. Young with a jacket and 14 seconds later covered her more fully with a blanket. Ms. Young remained handcuffed for nearly 10 minutes after which she was allowed to dress and then handcuffed again. In total, Ms. Young was handcuffed for nearly 17 minutes.

Young was handcuffed, covered in only a blanket, for more than 10 minutes. This was all captured by officers’ body cams. However, the cameras were off when the officers decided to acknowledge the fact that they were in the wrong apartment.

This investigation wouldn’t have happened without the release of the bodycam footage — something that was initially blocked by the Chicago PD. Making matters worse for everyone involved, Mayor Lori Lightfoot pretended she’d never heard about the raid until the local news had covered it.

The mayor initially insisted she knew nothing about the raid until WBBM-TV (Channel 2) aired the video in December.

But after reviewing internal emails, the mayor was forced to admit she learned about the raid in November 2019, when a top aide warned Lightfoot about a “pretty bad wrongful raid” by Chicago police.

“I have a lot of questions about this one,” she wrote at the time to top aides.

Lightfoot went as far as to demand the resignation of a city attorney over the failure to release the recordings earlier despite Lightfoot being instrumental in helping withhold the records from the raid victim and journalists making public records requests.

COPA itself was unaware of the raid until it was asked by the Chicago PD attorney handling Anjanette Young’s request for the recordings if there was an investigation underway. That was November 2019, seven months after the raid. The opportunistic PD then used this newly-initiated investigation as an excuse to deny requests for the videos.

This raid prompted calls for change from several city and state officials, including Illinois State Attorney General Kwame Raoul. The state sued the city over the PD’s “pattern and practice” of violating rights in January of this year, demanding a consent decree that would drastically modify how the department handled search warrants.

The Chicago PD has had years to improve. But it hasn’t. This traumatic wrong house raid isn’t anything unusual for the department. It’s just the latest — one that managed to expose how much city officials will do to protect the department, despite publicly claiming they want better policing.

The same month the CPD raided Anjanette Young’s house, they raided another wrong address, giving children celebrating a birthday the gift of lifelong PTSD.

A family in Chicago has filed a lawsuit, claiming that the Chicago Police raided the wrong home during a 4-year-old’s birthday party.

Stephanie Bures, the plaintiff in the lawsuit, claims that officers had the wrong house during the Feb. 10 raid, claiming that the suspect sought by police had not lived there for five years.

Bures claimed in the lawsuit that 17 officers raided the home during her son’s birthday party. The lawsuit claims that officers pointed guns at the 4-year-old, and Bures’ 7-year-old child.

Another lawsuit filed the same year claimed CPD officers engaged in multiple wrong house raids at the same address.

Chicago police incorrectly raided the same family’s home three times over the course of four months this year, according to a federal civil rights complaint filed Friday.

The complaint was filed against the city and Chicago Police Department on behalf of Krystal Archie and her three children: 14-year-old Savannah, 11-year-old Telia and 7-year-old Jhaimarion, according to a statement from Archie’s attorney Al Holfeld.

That’s all from a single year of the CPD engaging in warrant service. The problems with the PD and its officers date back years, though. It’s been the subject of DOJ investigations and federal court orders. And has long been seen as a place where corruption is not only ignored, but encouraged.

The conclusion of this investigation moves the CPD slightly towards accountability. But only slightly. It’s up to the police department to actually punish its officers and demand more accuracy and accountability from those engaging in guns-out raids of residents’ houses.

Filed Under: anjanette young, chicago, chicago police, discipline, lori lightfoot, swat team, wrong address

South Dakota Court Says Government Doesn't Need To Pay For Home Cops Destroyed To Find A Fugitive Who Wasn't There

Legal Issues

from the I-guess-this-is-on-you,-innocent-homeowner dept

Destroying houses appears to be a cop hobby. Somehow searching for suspects involves punching larger-than-man-size holes in walls, shattering every pane of glass that separates cops from perps, and forcibly removing every door that would otherwise open as designed if officers attempted to use the handles.

Maybe some of this is justified if an armed and dangerous suspect is barricaded inside. But law enforcement agencies have made citizens suspected of nothing homeless while attempting to extricate shoplifting suspects, homeless people, and a man armed with nothing more than an ice cream bar. One woman’s house was rendered unlivable after it was the centerpiece in a 10-hour standoff between local cops and the only resident located in the house: the family dog. And a house that contained no one was destroyed after its empty interior thwarted cops’ efforts to apprehend a nonexistent suspect for more than 19 hours.

Trying to get anyone other than innocent homeowners to pay for this damage is almost impossible. Almost every court has considered this the cost of doing government business — something taxpayers are always asked to cover. If officers have a law enforcement reason to raze houses, the cost must be borne by those unhoused.

Another case involving the destruction of a house to capture a suspect who wasn’t even on the premises has made its way into the court system. And it has (mostly) dead-ended there, thanks to a recent decision by the South Dakota Supreme Court.

In this case, the Hamlin County Sheriff’s Department was searching for Gary Hamen, who had an outstanding arrest warrant for felony burglary and violation of a protective order. Gary — who had threatened to shoot himself and anyone else he came in contact with — called his father, Gareth, asking for a vehicle to drive to “Canada or Mexico.” At that point, he was in a nearby trailer home owned by Gareth, located about 600 feet away from Gareth’s trailer.

Officers listened in on this phone call and deputies saw Gary exit the trailer and then walk back inside. The Sheriff’s Department requested the assistance of the Watertown PD and secured a drone to fly over the trailer in an attempt to spot Gary or see any exit routes he might take.

A SWAT team assembled and set up a perimeter around the trailer. But this effort appears to have been mostly pointless. From the decision [PDF]:

While the SWAT team attempted to contact Gary, officers received a report that a local resident had observed Gary running towards Castlewood. The resident reported that Gary came out of a tree line near a river and sewage pond, but he had run back into the trees. Sergeant Ellis and the SWAT team tried to locate Gary in this area and encountered another witness who also believed he had seen Gary. An officer inside the armored vehicle called Gary’s cellphone. Gary answered the phone call and claimed he was almost to Minnesota. He sounded out of breath, like he was running.

Law enforcement also spoke to Gary’s brother-in-law, who confirmed he had seen Gary the previous night. During this conversation, officers received more information suggesting Gary was no longer in the trailer currently surrounded by a SWAT team.

Not too far away, even more radio traffic suggested entering the trailer wasn’t going to result in the discovery of the fugitive.

Meanwhile, Troy Jurrens, who ran a business from his home nearby, was listening to the transmissions among law enforcement on a police scanner as they attempted to locate Gary. He stated: “someone announced on the radio that they were ‘going back to the trailer,’” to which another voice responded, “he’s not in the trailer.” Troy claimed, “The first voice answered back saying they were going back anyway.”

Deputies told Gareth they were going to try to enter the trailer. They did not mention they were planning to destroy the trailer to do this. They also did not ask for consent to enter the trailer, which was the property of Gareth Hamen. Cop-on-house violence ensued.

Not long after, the Sheriff authorized SWAT and the SRT to breach doors and windows on the Hamens’ mobile home. According to Wishard’s affidavit, the “tactical procedure [to secure the mobile home] is to create communication portholes in attempts to call out any subject or subjects that may be hiding inside.” If unsuccessful, gas munitions are used to flush out anyone inside. To create the communication portholes for the Hamens’ trailer, an armored vehicle pulled away the front stairs and deck, which were not attached to the mobile home or secured in the ground, and pushed in the front door with a ram. The second armored vehicle opened three portholes on the opposite side of the mobile home by breaking through windows and a sliding patio door, causing significant damage to the walls and the septic system.

And then:

Shortly after this procedure and before officers entered the mobile home, Gary was seen walking in the river near the Hamens’ residence. Law enforcement apprehended him at approximately 6:00 p.m.

Gareth Hamen sued, seeking compensation for his destroyed property. But there’s nothing in the law that says the government needs to pay for property it destroys — at least not in this fashion. While state law does allow property owners to seek compensation under the state constitution (in order to “ensure that individuals are not unfairly burdened by disproportionately bearing the costs of projects intended to benefit the public generally”), that clause doesn’t apply to cops destroying a house to find someone who wasn’t even in it. And it’s that way because this court has always said that’s the way it is.

[O]ur prior decisions have consistently applied the public use language in article VI, § 13 to both the takings and damages clauses, while rejecting a right to compensation under article VI, § 13 when the action involved the state’s police power.

That eliminates one of the allegations. But there’s still qualified immunity to consider. Unfortunately, the state Supreme Court says only one of those two allegations will survive.

There were two egregious Constitutional violations: the warrantless entry and the excessive destruction of personal property. Guess which one gets to go forward.

We conclude that, at a minimum, the Sheriff’s warrantless entry into the mobile home required an objectively reasonable belief that Gary was living in and present in the home at the time of entry.

[…]

Given that law enforcement’s last contact with Gary suggested he was no longer in the home, coupled with the fact that law enforcement had surrounded the mobile home for several hours without incident or any materialized threat from Gary, we cannot determine as a matter of law that exigent circumstances existed at the time the Sheriff decided to enter the mobile home.

Since there’s plenty of information on the record that suggests at least some officers involved had reason to believe Gary wasn’t in the home, there could not possibly be exigent circumstances to enter the home without a warrant to locate someone arrested a couple of hours later outside of the home. This goes back to the lower court for more development of the record.

Unfortunately, the court somehow doesn’t consider the damage caused during the search to be worthy of further examination. The officers are granted qualified immunity for the excessive force, even though the court says the entry itself may have been unconstitutional. Walking through a front door without a warrant is no good. Forcibly removing the door (along with windows, walls, part of the septic system, etc.) is just fine because no “reasonable officer” would have been aware that destroying a house to facilitate an illegal search was unconstitutional.

Regardless of whether the Sheriff used excessive force, the Hamens cannot prevail because they cannot show that the Sheriff’s use of force, even if it was excessive, violated a “clearly established” right.

The dissent says this makes no sense. If the entry was unlawful, everything that connected to that entry is similarly unlawful.

Regarding the § 1983 excessive force claim, as a starting premise, if the court determines on remand that the Sheriff’s entry into the mobile home was unlawful, then the nature and extent of force used is immaterial. In such case, the Sheriff is liable to the Hamens’ for the damage caused by the entry.

Furthermore, even if the entry is ultimately proven lawful, the damage caused was excessive, given the facts of the case.

Viewing the underlying facts in a light most favorable to the Hamens, it is questionable whether the use of “communication portals” of the sort made here were required given the small size of the trailer, particularly when considering that, up to the point of their decision to enter the trailer, law enforcement had been using a loudspeaker to attempt to communicate with Gary. Viewed in this light, the resulting damage to the trailer was intolerable in its intensity and unnecessary to execute the burglary warrant at issue.

That’s how it stands in South Dakota: law enforcement can destroy a house to engage in an illegal search without having to worry about paying for the damage. A single claim survives this trip through the court system, which likely isn’t going to produce a decision or settlement large enough to replace the home. And even if it does, it will come years after the damage was done.

Filed Under: gary mhamen, hamlin county, houses, police, south dakota, swat team, wrong suspect

Court: No Immunity For SWAT Team That Hurled A Flash-Bang Grenade In The General Direction Of A Two-Year-Old Child

Legal Issues

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.

Filed Under: 8th circuit, children, flash bang, kansas city, kansas city pd, qualified immunity, swat team

Fatal Houston PD Drug Raid Apparently Predicated On Drugs A Cop Had Stashed In His Car

Legal Issues

from the this-is-insane dept

The ugly Houston PD drug raid that resulted in four injured officers and two dead “suspects” just keeps getting uglier.

Officers swore a confidential informant purchased heroin from 59-year-old Dennis Tuttle in the house he shared with his wife of 21 years, Rhogena Nicholas. They swore the CI told them the house was filled with heroin packaged for purchase.

On the strength of this confidential informant’s claims, officers obtained a no-knock warrant and raided Tuttle’s house. The officers claimed Tuttle opened fire on them and that his wife tried to grab a shotgun from a downed officer. This was the supposed reason for SWAT team’s killing of Tuttle and Nicholas.

This was the narrative everyone was given. Not a single officer was wearing a body cam, despite the department possessing dozens of them. The only footage that survived — captured by a neighbor’s security camera — was confiscated by the Houston PD.

Even in this vacuum of information, the PD’s narrative quickly fell apart. No large amounts of heroin were found during the raid — just personal use quantities of heroin cocaine and marijuana. The inventory also included a few guns, which the PD has treated as inherent evidence of criminality despite the fact both Tuttle and his wife could legally own the weapons found in the house. The only criminal history either of them had was an old misdemeanor charge for a bad check.

Now that the PD’s investigation into this raid is underway, it’s becoming clear the official narrative — a daring no-knock raid that took out dangerous heroin dealers — isn’t going to survive. The new narrative already includes multiple lies by police officers and a lot of supporting evidence.

First off, the raid inventory does not include the weapon officers claimed Tuttle fired at them.

The other four items in the inventory are guns: a 20-gauge Beretta ALS shotgun, a 12-gauge Remington 1100 shotgun, a Remington 700 bolt-action rifle, and a .22-caliber Winchester 190 semi-automatic rifle. The list does not include the .357 Magnum revolver that police say Tuttle fired at the officers who broke into his home, shot his dog, and killed his wife.

It also doesn’t include the money the CI paid for the heroin or the weapon he claimed Tuttle was carrying.

Nor does it mention the 9mm semi-automatic handgun that the C.I. supposedly saw in the house the day before, which apparently disappeared along with the heroin and the money.

The PD also claimed the investigation was initiated by an anonymous call claiming the couple were selling drugs from their house. Since that initial press salvo by Chief Art Acevedo, information has come out indicating the “tip” was neither anonymous nor did it reference drug dealing.

A 911 call from the mother of now-deceased suspect Rhogena Nicholas put 7815 Harding Street on police radar. Sources close to the investigation say her mother called reporting the 58-year-old was doing drugs inside her own home.

It only gets worse. According to statements from officers now under investigation, it appears the Houston PD raided a house, shot a dog, and killed two people over drugs a police officer had stashed in his vehicle. (As is pointed out in the comments, the current version of the Chronicle’s article has reworded these two paragraphs slightly. Here’s a link to an archived version containing this pull quote.)

In the original warrant – the one used to justify the raid – [Officer Gerald] Goines wrote that he watched the buy and, along with Bryant, identified the substance as heroin. But when investigators went back to talk to [Officer Steven] Bryant, he admitted that he’d actually just retrieved two bags of heroin from the center console of Goines’ car, at the instruction of another officer.

Though he then took the two bags of drugs for testing to determine that they were heroin, he eventually admitted that he had never seen narcotics in question before retrieving them from the car. That, the investigator noted, contradicts the search warrant affidavit filed before the raid, which indicates that Bryant “recognized the substance purchased by the CI as heroin.”

This is absolutely terrifying. Investigators can’t seem to locate the informant both officers claimed was a reliable source of intel, which suggests this person — relied on in other Houston PD investigations — doesn’t even exist. None of the CIs interviewed by Houston investigators said they’d made the purchase detailed in the warrant affidavit.

How do citizens protect themselves against police officers willing to fabricate every aspect of an investigation in order to perform armed raids of their houses? Legally owning weapons means nothing when cops (and many courts) consider homeowners defending themselves from armed intruders a crime in and of itself. Two people are dead and no amount of late-arriving indictments is going to change that. Officers took a concerned mother’s call about her daughter’s drug use and turned it into a criminal conspiracy involving heroin and dangerous drug pushers armed to the teeth.

We have to grant law enforcement a massive amount of power in order for them to do their job. Time after time, they abuse the powers we’ve given them, wielding them like weapons against the same citizens they’re supposed to answer to. Vast power has been paired with nearly nonexistent accountability to create an atmosphere where officers feel comfortable manufacturing evidence to support their adrenaline habits. This should be nightmare fuel for all Americans. Unfortunately, outside of those already attuned to the miserable state of American policing, this will appear to be nothing more than a couple of bad apples they can safely ignore.

Filed Under: dennis tuttle, gerald goines, heroin, houston, houston pd, no knock warrant, police, rhogena nicholas, steven bryant, swat team