Court to Police: No Immunity Just Because You're Cops
Botched raid resulted in a $3.5 million settlement.
On a Sunday afternoon in 2008, a tactical police team raided the Easton, Connecticut house of Ronald Terebesi searching for a small amount of personal drugs. While by day's end the police discovered drug paraphernalia and 0.02 ounces of a substance believed to be crack cocaine, an officer also killed Terebesi's unarmed guest, Gonzalo Guizan (pictured), by discharging his Glock sidearm six times until the weapon finally jammed.
Guizan's estate and Terebesi filed civil suits against the officers in the raid, although the estate later settled out of court for $3.5 million. The tactical team—called SWERT for Southwest Regional Emergency Response Team—was composed of police officers from six different towns. The defendants, all of whom either planned or participated in the raid, requested summary judgment based on qualified immunity, which the district court for the most part denied (the court agreed police had lawfully acquired the search warrant and dismissed failure-to-train claims against the town chiefs). The defendants appealed.
On Thursday, the U.S. Court of Appeals for the Second District affirmed most of the lower court's denial of summary judgment and remanded the case.
To refresh your memory—I know, all these police shootings blur together—Easton is an upscale town on Connecticut's Gold Coast, population 7,500, rural and wooded with almost no commercial development (you have to drive to a neighboring town to buy a gallon of milk). There had been a number of incidents at Terebesi's house prior to the raid: a 911 call from a lady friend of Terebesi's resulted in police finding him passed out on the couch with a loaded gun and glass pipes; someone blasted a shotgun through the windows of his house (at least one man, an associate of an exotic dancer who claimed Terebesi raped her, was later charged). Neighbors complained of noise and traffic. On the morning of May 18, 2008, another exotic dancer named Chandra Pankov (described as "extremely thin, her teeth heavily decayed and her eyes glassy and dilated, according to the police report"), told police she felt a responsibility to inform on people doing drugs, and said she witnessed Guizan smoke some mysterious substance at Terebesi's house. Based on this, Easton police chief John Solomon activated the SWERT team to serve a search warrant.
SWERT officers devised a plan wherein a team of three (the "rake-and-break" squad) would break a rear window of the house and deploy two DefTech 25 flashbangs while a separate front-entry team would perform a "dynamic entry:" the officers would knock on the front door, identify themselves, batter down the door if necessary, deploy another flashbang, enter the house, and restrain anyone they found. Minority opinions among the team that alternative methods could be employed for serving the warrant went ignored. Beyond "Terebesi's perhaps unusually intense ardor for his pet bird," the Appeals Court noted that police had no reason to believe Terebesi was violent, and regardless police did not seek a "no-knock" warrant, with several officers explicitly saying they believed the knock-and-announce rule was in effect.
Here's a video of the raid. You don't see much except trees—the important part is the audio. The window breaks at 1:06 and by 1:20, the bullets have stopped and Guizan is either dead or dying.
From the Appeals Court's decision (PDF):
The defendants assert that Officer Gregg Lee checked to see whether the door was locked, knocked on the door and announced the officers' presence, and then waited several seconds for the occupants to respond before Officer Todd Edwards breached the door. … But the plaintiffs pointed out that only 7.194 seconds elapsed between the detonation of the second stun grenade, which was thrown from the rear of the house, and the detonation of the third stun grenade, which would have been thrown by the front?entry team after breaching the door. … Because a stun grenade takes 1.5 seconds to detonate, the plaintiffs argued, the front entry team had only 5.694 seconds to open the screen door, check to see whether Terebesi's door was locked, knock, announce, wait for a response, breach the door, look inside the room, and then throw a stun grenade.
Michael Sweeney, the lead officer into the house and the man who shot Guizan, said he felt something strike his shoes and believed he was being fired upon and returned fire. It has been suggested that what Sweeney actually felt was the explosion of the third flashbang—and that in any event, throwing a grenade in front of your own officers is perhaps contrary to their interests.
The Appeals Court affirmed the district court's denial of summary judgment on every point save one: that because "there is no clearly established right in this Circuit to be free from the deployment of a tactical team in general," Solomon was within his rights to activate the SWERT team in the first place (the town of Easton, probably upon reviewing their insurance premiums after the settlement with Guizan's estate, appears to have disagreed: Solomon's contract was not renewed and he was shown the door). But on every other count the court tilted in Terebesi's favor, noting that the use of stun grenades, being pinned by the officers' shields, the poor planning and approval of the raid, and even the failure of officers to intervene to stop it are constitutional grounds for a trial.