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2nd Cir: No Qualified Immunity for SWAT Team Raid

By Mark Wilson, Esq. | Last updated on

Recent in events in Ferguson, Missouri have prompted questions about the militarization of police: why do SWAT teams need to be armed like they're going into Kandahar? Last week, the Second Circuit Court of Appeals criticized this militant response in an appeal over police conduct during a drug raid -- although "drug raid" is a loose term.

In order to serve a search warrant on Ronald Terebesi, who was alleged to possess a small quantity of crack cocaine, "police planned to smash Terebesi's windows, detonate at least three stun grenades (or "flash bangs") inside the home, break down the front door with a battering ram, and storm the house with weapons drawn."

I Love That Bird

Police evidence that a SWAT team and battering ram were necessary amounted to the following: Terebesi had covered his windows with plywood following a drive-by shotgun attack (the police believed this plywood made his home "fortified"); Terebesi had a small pistol registered to him; and he said he "would do anything that [he] needed to protect that bird," his pet macaw.

Battering ram. SWAT team. Macaw.

The court was fairly skeptical of the police claim to need a SWAT team; indeed, the court observed that they had hardly waited five seconds after announcing their presence before they stormed the house and threw flash bangs. The SWAT team killed Guizan, Terbesi's houseguest, injured Terebesi, and came away with 2-6 doses of crack cocaine. There were no weapons in the house.

Bursting Down the Doors

This appeal is from a denial (mostly) of summary judgment; the police argued that they were entitled to qualified immunity. In a situation like this, the question is whether police acted reasonably in using the amount of force they did. The court reversed the district's court's denial of qualified immunity to Chief Solomon, who made the decision to employ the SWAT team. There is no clearly established right not to be free from the deployment of a SWAT team.

As to the execution of the raid, the court found that, yes, the question of whether the police executed the raid with excessive force was a factual question, and the police weren't entitled to qualified immunity. Similarly, the court upheld denial of qualified immunity as to the use of flashbangs, which the court properly characterized as "bombs." It is well established that "[p]olice cannot automatically throw bombs into drug dealers' houses, even if the bomb goes by the euphemism 'flash-bang device.'"

Because stun grenades pose inherent risks to the occupants of a house, the court reminded defendants that it's not reasonable to use a stun grenade in "routine searches." In this case, "all of the stun grenade defendants knew or should have understood that the search warrant was for a personal-use quantity of drugs and that there was no reason to believe that Terebesi posed a risk of violence or resistance. "

With increased military equipment, police departments have treated routine situations as though they were extremely dangerous ones. When you have a hammer, every problem looks like a nail -- even if it's just a guy and his bird.

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