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

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.

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

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73 Comments
Anonymous Anonymous Coward (profile) says:

Definition of reasonable, and why so disparate results?

The disparity between the various appeals courts has me baffled. Here they denied qualified immunity for irresponsible behavior. On the other hand a different court suggested that shooting at a dog that wasn’t attacking any police and hitting a child was reasonable.

Does this suggest that the courts themselves aren’t reasonable? Or is it just ideological differences between different circuits? Isn’t there some agreement somewhere as to what reasonable means?

Anonymous Coward says:

Re: Definition of reasonable, and why so disparate results?

Most courts are unreasonably friendly with the police. They even go as far as granting them a completely made-up "Qualified Immunity" to allow violations of our rights and due process. The fact that this case has disallowed that immunity means even the court feels they went too far.

Anonymous Coward says:

Re: Re: Definition of reasonable, and why so disparate results?

It’s pretty bad when even the court says they went too far!!!

Police these days are afraid of their own shadow and it’s caused the deaths of many, many innocent people!!! Normally they get away with it. I remember a case where the police raided a house in the early morning. The guy was sleeping in his bed. Half asleep as the police came rushing in, thought he had whatever and shot him dead. Turned out it was the WRONG HOUSE!!!!! Completely innocent, MURDERED by the police and they got away with it.

This stuff happens all the time. These Police departments have these tactical units that are half bord and want to play with all their toys and the public pays for it with their lives. The war on DRUGS needs to end. Too many innocent people are murdered by the police in this so-called war. It’s not worth it.

Too many police officers have poor training. They make up their own laws as they don’t know them or really care. Better to not know so they don’t lose their immunity. They step all over people’s rights. They flat out LIE right to your face to try and make you do what they want. End the WAR and shrink down the police force!!!

Anonymous Coward says:

Re: Re: Re: Definition of reasonable, and why so disparate resul

Wrong. Deathly wrong. None of these acts are motivated by fear, and pretending so does nothing more than defend inexcusable atrocities by law enforcement officers.
We see how police act when afeared: we saw it in Parkland, we saw it before that in Vegas, we even see it in how when they do believe a no-knock may be dangerous they will go out of their way to ensure they raid a different, unrelated address to avoid any danger.

No, the motivation of police in these events is the pain, loss and terror it inflicts upon the local population, combined with the intoxicating rush of deciding the lives and deaths of commoners they see as below them. This is how a 2 year old gets flash-banged. This is how people are shot in the back "for charging towards the shooter" after bodycams have been turned off. This is how a man on the ground with his hands up gets shot, told "I dunno" when begging to know why he was shot, and then met months later by a "I was fearing for my life" standard-template defense.
And even if a lawsuit is allowed to proceed – it is not the police who pay for it. It is not taken out of their pay or their retirement fund. It is forcefully taken from other innocent taxpayers, that entire populations may be punished for having dared complain.

Immunity to real consequences: That, is the reason for their endless escalation of abuse.

Bergman (profile) says:

Re: Re: Definition of reasonable, and why so disparate results?

This. If Congress were to enact a statute granting police qualified immunity, it would be unconstitutional because it would create a (very large) class of less privileged citizen.

Yet somehow, despite the courts having no authority whatsoever to create new laws, the courts have been able to create qualified immunity despite it being both unconstitutional and them having no authority to create it.

But how do you hold the gatekeeper for the justice system accountable for breaking the law?

That One Guy (profile) says:

Re: Re: Re: Definition of reasonable, and why so disparate resul

If there wasn’t a very real chance for the practice to be made an official law via spineless judges, it occurs to me that actually introducing a law codifying qualified immunity with the intent for it to be passed and then struct down as unconsititional could be a way to kill the legal abomination.

If a law making qualified immunity was rightly struct down as unconsititional then the question would be ‘now why are courts still acting as though it’s a thing?’, providing an angle to challenge it’s use in other courts.

Barring that the legal abomination is likely here to stay for the foreseeable future sadly, as it would take a very well funded person/group and a string of judges up to and including a majority of the US Supreme Court willing to tell cops ‘no in fact you do not get special treatment in the law’ to kill it off, which sadly isn’t likely to be the case any time soon.

Bruce C. says:

Re: Definition of reasonable, and why so disparate results?

Actually not so much of a disparity. The standard (according to various articles here. IANAL) is that there must be previous case law directly on-point to the facts of the specific incident.

In this case, the court was able to site a previous case directly relating to the use of flash-bang devices.

In the case of the injured toddler, apparently there weren’t any prior records of officers shooting small children while trying to shoot a dog.

James Burkhardt (profile) says:

Re: Definition of reasonable, and why so disparate results?

While I am late to the party, I would say there is a clear answer. one of the complaints lobbied at the Qualified Immunity standard created by the SCOTUS by a number of commenters including here at techdirt is that in addition to being unnecessary to reach the goal of Qualified immunity (To prevent a situation where the police made a less optimal decision or was locked in indecision to avoid financial penalty when faced with a difficult situation, which indemnification policies could resolve), the standard was vague and hard to implement. Lower courts have shown difficulty implementing the standard leading to inconsistent results. Time after time when we see such inconsistent and illogical results, it can be traced to ambiguity or unclear standards. Whether in the law, or in precedent. In this case, the SCOTUS established a new standard with no real guidance on how it should be applied in the broader sense, and no one with standing has any ability or desire to challenge the more egregious cases all the way up the chain.

Joe says:

Re: Definition of reasonable, and why so disparate results?

There are absolutely differences between the circuit courts. For a long time, senators had the ability to automatically "hold" (block) an appointment to a court that covered their state. So to get a judge through, you had to find someone at least palatable to the senators from that area. Hence, the 9th Circuit’s famous liberal bent, since it covers California (and I think the Pacific Northwest in general).

The Senate did away with this rule, and the general Republican control of the Senate for the last 20+ years means that the judges that are getting appointed are gradually shifting to the right. But these are life time appointments, so it takes a while to be apparent.

That One Guy (profile) says:

Re: I see your two words and counter with two more:

‘We’ll see.’

Just because they don’t get qualified immunity to shield them from any consequences for their actions does not mean those consequences will be anything more than a slap on the wrist and some paid leave while the heat cools down, and/or the taxpayers being on the hook for any fine.

That One Guy (profile) says:

Re: Re:

I don’t, as it would have no impact on the acceptability of the act either way, but you can be damned sure that if they had found something you’d have someone trying to use that to justify the practice.

Whether they found anything or not doesn’t matter, the act itself is still unacceptable, and as such bringing that angle to the table would simply serve to provide a distraction from the important parts.

Anonymous Coward says:

Re: Will the real boot-licker please stand up?

They never will. They are not man enough to admit that the cops fuck up all the time and instead insist that, even if they shoot a kid in the knee, while missing the target of the family dog, twice, that cops can never do anything wrong.

Mason is even quoted as saying that people who murder innocent people should be executed….. except when it’s a cop that is doing the murdering of innocent people.

More often than not, they just double down on their boot linking in cases like this.

David says:

Re: Re: Will the real boot-licker please stand up?

"That two year old could have been armed!"

You think that is funny?

Q: And it was your job?

A: It was my job, yes.

Q: What were the children in the ditch doing?

A: I don’t know.

Q: Were the babies in their mother’s arms?

A: I guess so.

Q: And the babies moved to attack?

A: I expected at any moment they were about to make a counterbalance

Q: Had they made any move to attack?

A: No.

Q: When you left the ditch, were any of the people standing?

A: Not that I remember.

Q: Did you see anyone who was not shot?

A: I can’t say. I didn’t get down and check them out.

From the My Lai trial testimony of Paul Meadlo.

Be immersed in a culture of thinking in that manner, and you stop questioning things.

That One Guy (profile) says:

How about a trade?

I’d be willing to give them a pass on tossing a flashbang into a room where they had no idea who and what was in that if the public is allowed to return the favor.

If flashbangs are so inconsequential and harmless that they feel no problem using them on a whim then it only seems fair that they get to experience that themselves, where every flashbang used by them or a member of their team is matched by the victim(s) randomly tossing one in an isolated room(to avoid collateral damage, no need to sink to their level) they are in, similar to the ‘if you want to use mace, you need to be maced first’ that I believe is standard practice. No protection, no warning, simply ‘flashbang out of nowhere’, just like they subject others too.

I suspect that if the cost of using flashbangs as the default way of saying ‘Hello’ was they had to deal with the same thing their eagerness to use them might cool down just a tad.

That said, good to see a judge keep their spine when faced with badges, now they just need to follow up with a heavy personal penalty for those involved to send the message to police in that area at least that flashbangs are not toys, to be used whenever a cop or SWAT member feels like it.

Anonymous Coward says:

Re: How about a trade?

A proper trade would be that flashbangs are an appropriate response to a cop approaching in any way – you have no idea if that armed combat-trained aggressor will turn out to have violent intent.

One of those through the car window before they can dangerously exit it – as law enforcement training teaches us we must do it – is a good way to protect people from parking tickets too.

JMT (profile) says:

Re: How about a trade?

Your hypothetical highlights the hypocrisy at play here. The police claim flashbangs are "standard procedure coz we was scared, no big deal", but can you imagine the violence, both physical and legal, that would befall anyone who threw a flashbang at police? If you survived the inevitable hail of gunfire, a charge of using a deadly weapon against LEO’s would be the minimum you could expect.

That One Guy (profile) says:

Re: Re:

Pretty sure you’re putting way more thought into it than they do. Given how often they apparently use them I suspect the thought process behind rampant deployment can basically be summed up as:

1) We have flashbangs.

2) Flashbangs are fun to use(for us), and cost us nothing to do so.

Conclusion: We should use flashbangs whenever possible.

David says:

Re: Re: Re:

It’s more like
1) we have flashbangs.
2) there must be a reason for that.
3) I don’t remember ever recognizing a need for them, so necessity is irrelevant

It’s the same reason you shoot dogs on sight or use the fire extinguisher on toilets. Wait, let me check my list: let’s not give them ideas they haven’t had yet.

David says:

The core sentence of the verdict seems untenable

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.

The selection criteria for police officers exclude plainly competent officers by making intelligence reason for disqualification. As such, plainly incompetent officers will most definitely be eligible for qualified immunity.

Excluded will only be plainly malignant or criminally reckless officers. Which is a rather high bar to clear but one that the officers in this case clearly managed to keep aloof of.

Anonymous Coward says:

"we didn't know"

There are so many things to pick apart here, but gonna concentrate on one.

Were they honestly trying to tell us that they didn’t know that flashbangs are dangerous?

Never mind there was no ‘policy’. They were never told this in all of their swat training? Never told this when they were being trained in their applications and use? Never read the manufacturer’s instructions and warnings? Never had a single issue with using them in the past? Never read a single article or read a newspaper where a flashbang caused serious injury?

How much bullshit and lies can you get away with in a court case before you get called out for it? It seems when you are police officer, a hell of a lot.

Anonymous Coward says:

Re: "we didn't know"

All law enforcement should have a flashbang grenade hurled down their shorts as part of their ongoing training. At least then when they come to our front door screaming in a high pitched voice, we will be able to identify them as the completely crazed maniacs they have been trained to be.

Anonymous Coward says:

Re: "we didn't know"

They were never told this in all of their swat training?

Never mind that, do I really have to be the first one to ask why the hell did they send a SWAT team to search, with a warrant, the house of an already-arrested person? No indication of any crime in progress or any danger. Could’ve sent two cops to knock politely and call for backup—probably still not a SWAT team—if absolutely necessary.

mechtheist (profile) says:

Cops have become such craven weasels these days

Someone said it above, the cops here display profound cowardice and dishonesty. It was only a few years ago in a drug raid that they threw one of these flashbangs into a baby’s crip, severely burning it. I don’t think they suffered much in the way of consequences. It’s a difficult and dangerous job, but that job is to protect the citizens from criminals, not to protect themselves from the citizens.

Anonymous Coward says:

Re: Re: Cops have become such craven weasels these days

Until the entities who are training cops to behave as if all Americans were the enemy get called out, until their aim is entirely stripped and exposed publicly and until they have the b’jesus sued out of them, all attempts to stifle bad cops behaving badly will be just like itching a mole. The ugly mass remains hidden deep beneath the surface of the skin.

Anonymous Coward says:

Re: Re: Cops have become such craven weasels these days

Actually the worst part is "the baby’s a criminal" WAS that team’s defense on the subject.
They argued that by illegally obstructing their ‘entry device’ (by it landing on him in his crib) the infant was the one committing a criminal obstruction of their search and that therefore any injuries or property damage were also his fault, having occurred in conjunction with his crime.

It had been thrown out, but they’d still gotten away with their baby-burning sans-conséquences in the end.

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