Here's How the Obama Administration Defended DEA Agents Who Put a Gun to a Little Girl's Head

The Ninth Circuit Court of Appeals ruled last week that the DEA’s use of force against the 11-year-old and 14-year-old daughters of Thomas and Rosalie Avina--which included putting a gun to the youngest girl's head--was “excessive,” “unreasonable,” and constituted “intentional infliction of emotional distress.”

Attorneys for the Obama administration defended the raid, and Reason has obtained the brief the DOJ filed to the Ninth Circuit. In it, the Obama administration argues that “the DEA agents’ conduct was plainly reasonable under the circumstances.”

After subduing their parents, agents broke into the two girls’ bedrooms during a wrong-door raid in January, 2007. The oldest of the two girls dropped to the floor and was handcuffed by agents before being dragged into the living room and laid next to her mom and dad. The 11-year-old, however, was sleeping when agents came into her room. As they began to shout at her to “get on the fucking ground,” the girl woke up and “froze in fear.” Agents then dragged her from her bed to the floor. One agent handcuffed her while another aimed a gun at her head. 

Citing Muehler v. Mena, the unanimous 2005 Supreme Court decision that established the right of law enforcement agents to detain residents during a raid for an unspecified amount of time—Iris Mena and several of her tenants were handcuffed and left in a garage for three hours while federal agents ransacked her home looking for evidence to use against a suspected gang member boarding with Mena—the Obama administration argued to the Ninth Circuit that the DEA agents were acting within the law when they handcuffed the entire Avina family.

The Obama administration’s argument is based on the agents’ belief that the home they were preparing to raid on January 20, 2007, belonged to suspected drug trafficker Louis Alvarez, who “had a history of violence and resisting arrest.” The agents anticipated that Alvarez would be armed, and that the only way they could safely arrest him would be with an early morning raid. While agents would later learn that they had the wrong house, they didn’t know that when they battered down the Avinas’ front door, guns ready. 

To a certain extent, the Ninth Circuit Court of Appeals agreed with the DOJ’s brief. It upheld the lower court’s ruling that the treatment of Thomas and Rosalie Avina—Thomas resisted the agents’ commands and was tackled to the ground and handcuffed at gunpoint; Rosalie voluntarily dropped to the floor—was not unreasonable or unlawful.

But what of the children? To sway the court, Obama administration lawyers softened their depiction of the agents' treatment of the 11-year-old and 14-year-old girls:

Agents also entered the bedrooms of plaintiffs B.F. and B.S. Avina, who were then fourteen and eleven years old, respectively. Both girls were in bed at the time, and B.S. was sleeping. B.F. complied with the agents’ instruction to get on the ground, and the agents thereafter handcuffed her. B.S. initially resisted the instruction, and agents responded by assisting her to the floor and handcuffing her. The agents did not use profanity in speaking to the girls.

Compared to the Ninth Circuit’s ruling, which uses the facts presented by the Avinas, this is an utter white-washing. The girl identified as “B.S.” is the Avinas’ 11-year-old daughter. She did not “resist the instruction,” but was “frozen in fear.” Agents did not “assist her to the floor,” they dragged her off her bed. They did not just handcuff her, they held a gun to her head. 

The Obama administration also white-washed the agents use of profanity during the raid. According to the Ninth Circuit’s ruling (which--again--is based on the Avinas’ brief), the agents told both girls to “get down on the fucking ground.” According to the Obama administration’s brief, however, the use of profanity was spare:

In response to plaintiffs’ contention that “the allegedly extensive use of profanity somehow contributes to a finding that the agents used unreasonable force,” the [lower] court noted that there was “no evidence that suggests any use of profanity was extensive.” To the contrary, the court observed that “the evidence demonstrates that the agents sparsely used profanity,” and “did so only in association with commands during entry directed solely at the adults.”  Id.  “Though B.F. Avina testified that she heard profanity used in the background during the agents’ entry, neither B.F. nor [B.S.] Avina testified that any of the agents used any profanity directed at them.”  Id. (internal citation omitted).

If neither of the daughters testified about the officers’ profanity, why is it in the Ninth Circuit’s Ruling? And why did the Obama administration omit from its own brief that an officer aimed a gun at the 11-year-old's head? (Update: Read a response to my questions about conflicting claims here.)

Also, there’s something insidious about the word "assist": According to the Obama administration’s brief, the agents “assisted” Thomas Avina to the floor as well, but the Ninth Circuit described the action thusly: “Agents ‘forcefully pushed’ Thomas Avina to the ground during the initial minutes of the search.” 

Based on a recollection that is unique to the briefs filed by DOJ lawyers, the Obama administration asked the Ninth Circuit to uphold the lower court’s ruling on the following grounds: 

Having probable cause to believe that a drug-trafficker was living at plaintiffs’ residence, DEA agents obtained warrants to arrest the suspect and to search the residence for firearms and other evidence of illegal drug-trafficking.  Plaintiffs were home when agents executed the warrants, and the agents reasonably detained plaintiffs, in handcuffs, while securing the premises.  Finding no evidence that the agents used force beyond that necessary to handcuff the plaintiffs, and concluding that the agents’ use of strong language was not excessive, the district court granted summary judgment for the United States on plaintiffs’ claims of assault and battery and intentional infliction of emotional distress.  This Court should affirm the district court’s judgment, as plaintiffs have adduced no evidence indicating that state law would impose liability in like circumstances.

And yet, of all the precedents the Obama administration cited, it did not name a single case in which a court had upheld the use of force against children. 

But the administration’s brief doesn’t end there. Secondary to the question of whether the DEA agents committed assault and battery, and inflicted emotional distress, was the question of liability for a wrong-door raid. The DEA after all, made a big mistake. Not only were the Avinas innocent, but after being released, traveled immediately to a clinic where the whole family was medicated for anxiety.

Should the DEA be held unaccountable, at the very least, for raiding the wrong house? The Obama administration says no:

Plaintiffs [the Avinas] offer no argument or evidence suggesting that the agents did not in good faith act within the scope of the warrant in this case.  As plaintiffs note, evidence exists that the affidavit supporting the warrant erroneously stated that Alvarez’s car was registered to plaintiffs’ address.  But this deficiency was not apparent from the face of the warrant and therefore does not implicate the limited exception to Leon; there is no indication of any kind that the agents executing the warrant had reason to know of the error and acted other than in good faith.  To the contrary, the statement in the affidavit regarding the registration would tend to confirm the existence of probable cause to search the residence.

Any argument that the existence of an error in the affidavit undermines the validity of the warrant would similarly be unavailing in this case.  To challenge the validity of a warrant on that basis, a plaintiff “must make 1) a ‘substantial showing’ of deliberate falsehood or reckless disregard for the truth and 2) establish that, but for the dishonesty, the [search] would not have occurred.”  Liston v. Cnty. of Riverside, 120 F.3d 965, 973 (9th Cir. 1997) (quoting Hervey v. Estes, 65 F.3d 784, 788-89 (9th Cir. 1995)); see Franks v. Delaware, 438 U.S. 154, 171-72 (1978).  Plaintiffs have alleged no facts that could satisfy that standard.  Indeed, there is no suggestion that the error with respect to the vehicle registration was the result of anything other than inadvertence.  Plaintiffs have additionally failed to establish a triable issue of fact 20 Case: 11-55004   06/24/2011   Page: 26 of 32    ID: 7796875   DktEntry: 16with respect to whether the remaining evidence in the affidavit was nevertheless sufficient to establish probable cause. 

Shorter version: Unless the victim of a wrong-door raid can prove that the mistake was an act of malice--it is almost never that--there is absolutely no legal recourse for suffering the shock-and-awe of a wrong-door raid.

The Obama administration has 45 days to decide whether it will appeal the Ninth Circuit's decision. 

Previously: Ninth Circuit to DEA: Putting a Gun to an 11-Year-Old's Head Is Not OK

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  • sarcasmic||

    Not only were the Avinas innocent, but after being released, traveled immediately to a clinic where the whole family was medicated for anxiety.

    Ha! They're all druggies! Even the children!

    They deserved all that they got and more!

    Damned druggies!

  • Bee Tagger||

    Since it will probably take baby steps, can I propose the following as a start?

    Any innocent party victimized by the war on victimless crimes may legally engage in victimless crimes for a number of years commensurate with the degree of victimization.

  • Pi Guy||

    But only at the homes of cops and prosecutors.

  • SugarFree||

    Fuck off, shitbag. Seriously. Fuck. Off. Shitbag.

    Ban this BATF agent provocateur cunt.

  • Citizen Nothing||

    this BATF agent provocateur cunt.
    Really?
    Huh.

  • TELLMOFF||

    You would not have the courage to say this to my face, libertarian.

  • Citizen Nothing||

    Shit, SF. Guess he told you.

  • SugarFree||

    Guess again, shitbag. But you haven't done as your told and fucked off yet, so I guess you just aren't all that smart, are you?

    (P.S. Don't try to use "libertarian" as an insult. It gives the whole game away, Agent Fuckstick.)

  • TELLMOFF||

    I am the only person that libertarians would like to "ban" because I am the only person with balls.

  • BakedPenguin||

    TELLMOFF / "Terry", you don't look like this, do you? I'm thinking this, since you're on desk duty.

  • BakedPenguin||

    Why don't you tell us about your "libertarian militia", Terry?

  • JW||

    Look, he's just tired of you fucking his dog.

  • ||

    Terry is Mr. Hands?

  • TELLMOFF||

    What happened to my posting that was here? Does the truth hurt that much?

  • ||

    PWND, you fucking idiot. Why don't you fuck off back to the BATF field office and tell your boss that you failed?

  • LTC John||

    OK, I am new around here - is this internet tough guy really a BATF agent?

  • TELLMOFF||

    As long as you are hiding behind your computer screen, keystroker.

  • Citizen Nothing||

    This is why nobody takes the BATF seriously.

  • ||

    Hey Alissi, can I propose that you ban this ATF agent before he entraps some poor moron?

  • TELLMOFF||

    You libertarians sure love to "ban" people that speak out against you. Because you are intellectually unarmed, that is all you can do.

  • ||

    Fuck off, dipshit. No one wants to hear about your child molester militia or whatever the fuck it is you're always babbling about.

  • Mr. FIFY||

    Um, you don't have the right to post here, TELLM.

    Private websites are not obligated to post your shit.

  • sloopyinca||

    Hey, the Executive Branch doesn't get to write the laws, but they have to defend them.*

    *Except when it comes to immigration, voter intimidation, voter registration, DADT, etc, etc, etc.

  • robc||

    Acutally, that is one of the great things about the executive branch, they dont HAVE to do anything. Its sort of the whole point of Marbury v Madison.

  • SugarFree||

    Gary Johnson should have The Avinas in a campaign commercial. Do one of those reenactments where the images are what the family alleges and the voice-over is the DOJ's description.

  • ||

    No, moron. He needs to air nationwide ads about how child porn needs to be legalized.

  • Pi Guy||

    OMD but are you ever a douche nozzle...

  • SIV||

    Hey! This is a libertarian blog's-comments! Take your boot-licking statist shit to Daily Kos or Free Republic!

  • SugarFree||

    Warty is not just the nozzle, Warty is the entire douche package.

  • Tim||

    Warty is the new STEVE SMITH

  • SugarFree||

    Pfft. STEVE SMITH is the old Warty.

  • ||

    Why are you talking about my tiny douche package, you prick? You promised me you'd keep it a secret.

  • crazyfingers||

    As far as I can tell, the same thing would have happened in a Gary Johnson administration. I've never heard him say anything about ending the war on drugs or abolishing the DEA - he's just part of the "legalize, regulate and tax" marijuana crowd. This guy they were looking for is probably accused of trafficking "harder" stuff, which Johnson thinks the government has the right to restrict individuals from using.

  • SugarFree||

    Then it should be a Reason Video. I'll even write it. Just make sure to find an actor that can pronounce "nacreous" correctly.

  • ||

    "Naw-shus", right?

  • Citizen Nothing||

    Forget Bush. It's Gary Johnson's fault!!!

  • Brandybuck||

    Those 95% libertarians are the worst. THE WORST! Anything less than 100% must be rejected completely! Impure! Impure!

  • ||

    Just shut the fuck up, Mary. You're not fooling anyone, you stupid whore.

  • crazyfingers||

    He's not the worst. Just unprincipled and uninspiring, which might be OK if he actually had a chance to win.

  • ant1sthenes||

    Maybe he should also work in the part about the kid that got left locked up for days without food or water.

  • Pi Guy||

    It's been said here before but, for a police force that's so militant, they sure seem to lack the ability to obtain the best intelligence available before breaching an obstacle. Maybe the Navy instructors will teach that to that to the NC cops during their upcoming SEAL training.

    More likely, though, they'll just ignore the way they do the Constitution.

  • db||

    Cops...SEAL training...

    Why do you hate cops so much? Are you trying to increase drowning and heart-exploding-exertion related death statistics?

  • Aresen||

    Please remember this the next time someone says that BHO is 'better on civil liberties and the WoD."

  • Citizen Nothing||

    It's Bush's fault.

  • db||

    People have been blaming Bush for things ever since Adam.

  • BakedPenguin||

    I didn't think Sixteen Stone was that bad.

    Okay, it was. I was just embarrassed because I liked it when it first came out.

  • ||

    I was 12 or 13. What was your excuse?

  • Whiterun Guard||

    This is just going to continue until there are massive Law Abiding Citizen style reprisals. So just get used to it and hope that the math holds up for you.

  • TELLMOFF||

    Don't expect any reprisals from libertarians. When the patriots take to the streets, the libertarians will be hiding ia a library.

  • ThatSkepticGuy||

    "When the patriots take to the streets,"

    Go Goosestep in the corner, needledick.

  • Choey||

    Ok,, so because they made an "honest mistake' and acted in "good faith" they are off the hook? Seems to me that if I drive my car in good faith and make an honest mistake that results in damaging something I'm still on the hook for the damages..

  • ant1sthenes||

    You're not a member of the knight class.

  • Eduard van Haalen||

    I thought the point of the 9th Circuit decision was that the plaintiffs can take their case to a jury, and if the jury thinks there was intentional infliction of emotional distress on the kids, the jury would be able to impose damages.

    The DoJ claimed that the case should not go to a jury, since even if the plaintiffs were right about what happened, it would have been perfectly legal.

    If there's a jury trial, the DoJ will switch to - "yeah, it would be illegal if it happened, but it didn't happen because these witnesses are exaggerating or lying."

  • CZmacure||

    And it all makes no sense anyways, because the only meaningful response to this incident would be criminal charges against the goons who did it.

  • ||

    In the process of helping B.S. to the floor, a profanity dislodged itself from the officer's vocal chords.

  • Pi Guy||

    Cops should be trained to index their vocal chords.

  • juris imprudent||

    Unless the victim of a wrong-door raid can prove that the mistake was an act of malice--it is almost never that--there is absolutely no legal recourse for suffering the shock-and-awe of a wrong-door raid.

    Welcome to Brazil!

  • ant1sthenes||

    We've been there for a while now, but yes.

  • TELLMOFF||

    The cop's definition of "reasonable" is anything goes.

  • Tim||

    After reading the Obama position I'm sure it would have been perfectly legal and professional if they had double tapped both those girls.

  • juris imprudent||

    Only if they barked or growled, or wagged their tails.

  • Adam330||

    Why is it that LEOs get to make reckless mistakes, but suffer no liability, but the rest have to pay up if we're merely negligent? If a doctor negligent performs a surgery that injures me, I get to sue the pants off him. If an LOE doesn't bother to look at the address on a house, or inputs license plate into a database incorrectly and doesn't double check his work, and then ends up raiding my house and shooting me, he gets off scot free.

  • sarcasmic||

    It's pretty simple.

    Who will aid you if an LEO commits a crime?

    No one, because that is their job.

    And even if it was not an LEO who committed a crime against you, the cops won't do shit about it.
    They may search you and try to find drugs so they can charge you with a crime, but as for the crime committed against you?
    Tough shit. Not their problem.

  • Tim||

    It's good to be the King.

  • Bryan C||

    As far as I can tell, the actual argument from the police agencies is that this cop stuff sometimes requires stuff sorta like secretarial work that's kinda hard to get right, and that cops should be expected to do stupid and dangerous things because they're not very smart and live constantly in a state of anger and fear. Therefore we should be glad we just have a large number of incompetent, frightened cops who terrorize innocent people out of carelessness, instead of a bunch of actively malicious cops who do it on purpose.

    Of course, these problems would all go away if we cheap civilian bastards would stop asking questions, keep them stocked with military-grade equipment, and paid them lots more money.

  • SugarFree||

    Look, if they didn't want to be terrorized, then maybe they shouldn't live in a place that can be mistaken for the place where a drug dealer lives.

  • Tim||

    If anything, they should be the ones to apologize for wasting the DEA's time.

  • SugarFree||

    Exactly.

  • Number 2||

    Any chance of posting a link to the DOJ brief?

  • TELLMOFF||

    You can find the SCOTUS ruling on GoogleScholar. The pleadings are not computerized anywhere.

  • silverfang789||

    I don't care what the DOJ's justification for their actions is. This kind of stuff is supposed to happen in dictatorships, not in the USA.

    I'm starting to think we would all be better off wiring out houses with CCTV cameras in all the rooms so we would have evidence of how they broke into our homes, shot our dogs and terrorized our children in the name of their precious War on Drugs.

  • CZmacure||

    And how CCTV will help? If anything it will only show that the cops truthfully believed that that this was the right house to attack. As long as it's honest mistake, plus their trademark "fear for officer safety", they can go and simply kill everybody at once, and it still would be justified.

  • Seamus||

    The government is correct when then say that the DEA goons did not use profanity. It would be profanity (i.e., the debasement of something that is holy, such as the name of God) if they'd said "For Christ's sake, get down on the God-damn ground. Jesus Christ, what's wrong with you? MOVE! NOW!"

    The word "fucking" is merely a vulgarity.

  • ||

    Sorry stupid pedant, you're wrong. Stop being stupid.

    profane [pruh-feyn, proh-]  
    Origin
    pro·fane   [pruh-feyn, proh-] Show IPA adjective, verb, pro·faned, pro·fan·ing.
    adjective
    1.
    characterized by irreverence or contempt for God or sacred principles or things; irreligious.
    2.
    not devoted to holy or religious purposes; unconsecrated; secular ( opposed to sacred).
    3.
    unholy; heathen; pagan: profane rites.
    4.
    not initiated into religious rites or mysteries, as persons.
    5.
    common or vulgar.

    Meets the definition, shut the fuck up you pedantic moron.

  • Espantapajaros||

    In this case of course, "circumstances" means the child wasn't named Malia Ann or Natasha Obama.

  • Rubber Nipple Salesman||

    This whole episode sounds like a trickle-down gift from The War on Terror. Armed men bursting into homes searching for suspected terrorists?

  • JoefromJerze||

    Whats pretty ridiculous is that even in Iraq when we raided people's houses we didnt handcuff the kids. We rarely even touched them. Just told them to sit on their hands and not move. Not saying thats right either but our military treats foreigner's kids better than our cops treat American kids.

  • JoefromJerze||

    Whats pretty ridiculous is that even in Iraq when we raided people's houses we didnt handcuff the kids. We rarely even touched them. Just told them to sit on their hands and not move. Not saying thats right either but our military treats foreigner's kids better than our cops treat American kids.

  • LTC John||

    No kidding, our ROE are stricter than police SOP.

  • Betty Liberty||

    Two things:

    Obama only cares when it's individuals using force. If it's the government, it's a'ight.

    We have the PD, SD, CHP, DEA, ATF, CIA, DHS, NSA..... why can't these Jack Wagons get an address right?!

  • CZmacure||

    why would they? they have zero incentive.

  • Anti-fed||

    Alphabet soup organizations aren't there for your good, they are there to raise revenue. That's why they have the CIA (cocaine import agency) $$$$$$$

  • katm||

    NOTE TO EDITOR-

    5th paragraph up from the bottom, is the word "unaccountable" a mistake? I get the feeling the author meant to say "accountable" instead:

    "Should the DEA be held unaccountable, at the very least, for raiding the wrong house? The Obama administration says no."

  • Kelly Viosberns||

    This news really broke my heart when I found out that the young kid was involved on this heartless incident. I'm calling you President Obama to take legal action on this matter. mightystudents.com

  • Anti-fed||

    Yeah cause that puppet of a wanna-be dictator is going to do ANYTHING to actually help the people? That's a joke. Only thing Obama wants is Zionism installed, the destruction of this nation, and the Rothschild family to have more money. He works for them after all.

  • AndrewS||

    Kelly, you are right. President Obama should take legal action. But he won't. He is, like Anti-fed says, just a puppet.

  • MaryHaws||

    I watched that to the end. my heart went out to Elian & the relatives ... i shed some tears when they shoved that weapon on him & took him away screaming...now that poor child is being trained to be a Dictator, not an upstanding human being... his mother died taking him to a free country & have a normal life...if my memory is correct, didn't she drown out at sea bringing him here ? Correct me if i am wrong !

  • Clara Nelson||

    Thanks for this information, i think Obama is really not doing what the power has bestold on him! We all hope he does something about this.

    is http://www.omoscowonder.com owns by the Obama team?

  • derekreview||

    Am a little surprise about this information.... It is amazing how Obama is doing all this in broad daylight.

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