11th Circuit: Cops weren’t given enough notice that police tactics used for decades are unconstitutional

Washington Post – by Radley Balko

The U.S. Court of Appeals for the 11th Circuit just issued a decision involving the use of flashbang grenades during a “dynamic entry” drug raid. Here are the facts:

On July 19, 2010, a special agent with the Narcotics Unit of Clayton County, Georgia, obtained a warrant to search Jason Ward’s apartment. The application for the warrant stated that a confidential informant had observed a “small quantity of a green leafy substance suspected to be marijuana” in the possession of Ward.

The application also stated that Ward had several arrests for possession of marijuana, sold narcotics from his apartment, and was known to carry a silver nine-millimeter handgun. The application sought a “no-knock” provision because “drug dealers commonly utilize weapons, dogs, and barricades to hinder law enforcement in the execution of their duties.” A magistrate judge approved the no-knock provision. …

To execute the search warrant, Stephen Branham, the commander of the county SWAT team, prepared an operational plan with four teams: Alpha, Bravo, Charlie, and Delta. Alpha was the “entry team.” Its job was to breach the main door to Ward’s apartment and secure the persons inside. Bravo was the support team. Its job was to wait outside and enter the apartment through the sliding glass door if help was needed. Deaton was a member of Bravo team. Charlie was a diversion team. Its job was to divert Ward’s attention by performing a “break and rake” on his bedroom window. A break and rake is a tactic in which an officer breaks and clears out all of the glass in a window. This tactic is used to cover a room until the rest of the officers make entry. It is also used as a diversionary tactic. Delta team, composed of only Officer Suzanne Bennett, was also a diversion team. Bennett’s job was to deploy a “bang-pole,” a stick with a flashbang on the end of it, on the outside wall of the apartment.

Quite the show of force for a “small quantity of a green leafy substance,” wasn’t it? The raid went down at 5 a.m. Ward and his girlfriend Treneshia Dukes were asleep. The cops deployed three flashbangs, one of which was blindly tossed through the broken window. It detonated near Dukes, causing severe burns. Here are a few things the opinion doesn’t include:

• Dukes was pregnant at the time of the raid.
• In the year prior to the raid, the Clayton County sheriff’s department used flashbangs in 80 percent of its drug raids.
• Shortly after the raid, the commander of the SWAT team was promoted.
• Clayton County law enforcement officers take the “drug war” metaphor pretty literally. The county’s former sheriff once complained that the drug war was merely being fought like the war in Vietnam. He believed it should have been fought more like “a Normandy invasion.”
• Georgia is also the state where a toddler was badly burned after the 2014 blind detonation of a flashbang in Habersham County.

The good news here is that the court found that the detonation of the third flashbang was “objectively unreasonable,” and therefore a violation of the Fourth Amendment. The bad news? In order to get past the qualified immunity afforded to police officers, that isn’t enough. You must not only show that the officers violated your rights, but also it must be “well-established” that their actions were unconstitutional.

We conclude that it was not clearly established that Deaton’s conduct was unconstitutional when he acted. Although we recognize that the doctrine of excessive force makes some official conduct off limits even in “novel factual circumstances,” Deaton’s conduct was not so lacking in justification that every reasonable officer would know that what he did constituted excessive force. The operational plan contemplated the use of flashbangs to disorient the residents, and there is no evidence Deaton intended to use his flashbang for any other purpose. And the application in support of the search warrant stated that “drug dealers,” such as Ward, “commonly utilize weapons, dogs, and barricades to hinder law enforcement in the execution of their duties.” The application also stated that an informant had advised law enforcement that Ward carried a handgun “on his person.” To be sure, Deaton should have followed his training and checked the bedroom before he threw. But a reasonable officer could have found it “difficult . . . to determine how the relevant legal doctrine, here excessive force,” would apply.

There’s a bit of circular reinforcement going on here. Police have been using flashbangs for decades. One would think it would be fairly intuitive that you don’t toss a device that detonates at over 2,000 degrees Centigrade blindly into a room. We’ve seen suspects, innocent bystanders, even babies harmed by that sort of carelessness. But for decades, courts have generally been reluctant to find fault, preferring instead to refrain from second-guessing police tactics. Now that the courts are finally coming around on the violation part, (and this isn’t the first court to do so), they’re reluctant to hold officers accountable because until only recently, the courts were part of the problem. Note that even this decision found nothing wrong with using flashbangs during a volatile SWAT raid over a “small quantity of a green leafy substance.” It was just the third one, which injured someone, that they find excessive. All of which means it’s doubtful this decision will have any deterrent effect going forward.

For what it’s worth, the author of this decision is William Pryor, widely reported to be on President Trump’s short list of future Supreme Court nominees.

https://www.washingtonpost.com/news/the-watch/wp/2017/02/09/11th-circuit-cops-werent-given-enough-notice-that-police-tactics-used-for-decades-are-unconstitutional/?utm_term=.b329f2f99922