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.