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SWAT Risk Management and Liability Reduction, Part 3

Written by Morefield, Bradley, Randy Means

In the first and second part of this series, SWAT-type teams are called by a variety of different names in different agencies and jurisdictions. However, they certainly have at least one thing in common. The things they do and the training necessary to do them both create enormous risks of injury, death and multi-million-dollar liability exposures to individual law enforcement officials and their employing agencies. This article suggests some ways those risks can be minimized.

In earlier columns, two broad principles were discussed—choosing the right leaders and complying with 4th Amendment “reasonableness” requirements. Specific recommendations were offered including training in decision making, setting clear performance expectations, evaluation of performance, remaining judicious in the use of diversionary devices, and training in dealing with the disabled, including mentally ill, and emotionally disturbed people more generally.

This time it is a survey of some federal appeals court cases involving SWAT-type operations decided in the last three years—provided to illustrate the kinds of legal problems arising in this area. These cases are the law in the region in which they are decided, but in other parts of the country are only interesting and possibly persuasive. 

 

Bishop v. Arcuri, 674 F.3d 456 (5th Cir. 2012)

A team of officers executed a no-knock narcotics warrant on a residence based on information provided by a confidential informant. They did not find dope, but the major issue in the case is why they ran it as a no-knock. The detective who drafted the warrant stated two reasons for applying for a no-knock instead of the default method of knock and announce, 1) drugs would be destroyed if they knocked and announced their presence and 2) knocking and announcing would increase risk due to the inherent dangers in executing this type of drug-related search warrant.

The court found that the no-knock entry in this case was unreasonable and therefore illegal. It reasoned that, if all it takes to avoid the knock and announce requirement is the generalized possibility that knocking and announcing increases the risk of losing evidence, every such warrant execution could be turned into a no-knock—and that is something the Constitution and the Supreme Court will not tolerate.

It took a similar view of the safety issues, requiring that there be specification of why knocking and announcing would increase danger to an unreasonable extentlike what intelligence information exists about the location’s fortifications, guns on the premises, and criminal histories of the occupants? The key to writing a no-knock search warrant application that will pass constitutional muster is to describe each heightened risk factor with particularity. The lesson? Move past copy and paste and avoid generalities.

 

Carroll v. County of Monroe, 712 F.3d 649 (2nd Cir. 2013)

This case involved an officer shooting a property owner’s dog during a warrant service operation. The court found that, in this case, the officer’s action was reasonable and lawful but the case serves as a reminder that a Fourth Amendment violation could be found if the dog does not present a significant danger or when it is known there are dogs on the premises and adequate measures are not taken to secure the dogs or in other ways mitigate risk.

In another case, for example, Thurston v. City of North Las Vegas, a 9th Circuit opinion released in January 2014, the court denied qualified immunity to officers who shot two of the property owner’s dogs 20 minutes after serving the warrant. Unresolved issues included the question, Should the officers have secured the dogs or called animal control in those 20 minutes before the dogs were shot?

If there is a trial in the case, more facts should surface about the circumstances of the shooting. Regardless, liability exposures of this type involve not just dogs but other property as well. Still, the propensity of animal owners in particular to sue over the destruction of their animals is well known. The lesson? Care should be taken to minimize the need for such actions where possible.

 

Estate of Escobedo v. Martin, 702 F.3d 388 (7th Cir. 2012) and Estate of Escobedo v. Bender, 600 F.3d 770 (7th Cir. 2010)

Part Two of this series suggested being judicious and smart about the use of diversionary devices and these cases illustrate this issue. They involve courts scrutinizing very closely the use of tear gas and flash bangs. Rudy Escobedo, who lived in a 7th floor apartment, had used cocaine, had a pistol, and had called 9-1-1 early in the morning threatening to hurt himself.

The apartment was located in a downtown area within blocks of a hospital and school and the timing of the incident was before and during rush hour. SWAT and negotiators were concerned because Escobedo had “high ground” and was armed with a weapon that could hurt people at a considerable distance. After three hours of negotiation and failed promises by Escobedo to come out of the apartment, a tactical plan was executed, including volleys of tear gas.

When Escobedo still failed to exit, the SWAT team made entry and used a flash-bang, igniting some of the tear gas propellant and causing a fire which they promptly put out. Finding that Escobedo could be nowhere but the bedroom, they broke down the door and tossed another flash-bang. It went off 1–2 feet from Escobedo who was crouched in the bedroom closet. When Escobedo lowered his gun from his head toward an officer, officers utilized deadly force.

In the 2010 opinion, which occurred before the trial in response to the district court denying qualified immunity to certain officers, the court agreed with the lower court to deny qualified immunity, on the basis that the officers’ use of tear gas and flash-bangs might have been unconstitutional. The court criticized the police for the fire that was caused when entry was made and for tossing the flash-bang into the bedroom without knowing where people were and where it would land.

In addition to paying close attention to the number of tear gas deployments and flash-bangs, the court went as far as to dictate what police practice should be. The 2012 court, which heard the case after an eight-day trial, back pedaled and backed off of the critical nature of the earlier opinion. The point? Courts pay close attention to the use of diversionary devices because the overuse of such devices can make a police action unconstitutional.

 

Mlodzinski v. Lewis, 648 F.3d 24 (1st Cir. 2011)

Officers executed a search warrant on the residence of a suspect accused of a brutal assault. The suspect was quickly taken into custody but the officers then proceeded to secure all occupants of the home. According to the lawsuit, a 15-year-old female was put in handcuffs and then pushed to the floor where she injured her knee. The lawsuit further alleged that an officer pointed an assault rifle at the female’s head for seven to 10 minutes.

The court makes clear that this type of conduct is a Fourth Amendment violation and certainly not acceptable. It found that the 15-year-old was placed in metal handcuffs and there was no reason to point an assault rifle at her head, noting also that the suspect had already been removed from the house.

The court goes on to cite a line of cases with similar facts—officers who had pointed weapons at young people for little reason or extended periods of time. Though the case is an example of the need to be mindful in dealing with young people, the issue would extend to the elderly and more generally to people unrelated to the action and who pose no particularized threat.

 

Bradley Morefield is a veteran law enforcement officer, police lieutenant, and supervising attorney with a major city police department. He is also the Legal Advisor for the Texas Tactical Police Officers Association.

 

Randy Means is a partner in Thomas & Means, a law firm specializing entirely in police operations and administration. He has served the national law enforcement community full time for more than 30 years and is the author of “The Law of Policing,” which is available at lRIS.com. He can be reached directly at rbmeans@aol.com.


Published in Law and Order, Apr 2014

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