Reason has learned that the Justice Department will not appeal the 9th Circuit Court of Appeals ruling in Avina v. the United States, the lawsuit in which Thomas and Rosalie Avina alleged that DEA agents used unnecessary force to restrain the couple's daughters, then ages 11 and 14, during a wrong-door drug raid at the family's California home in 2008.
In June, the 9th Circuit overturned a lower court's summary judgement in favor of the DEA. In an email to Reason, a Justice Department staffer said the government won't seek further review. Now the only question that remains is this: Will the DOJ settle with the Avinas, or will it defend the DEA agents–and their actions during the raid–in open court?
The agents entered the 14-year-old girl's room first, shouting "Get down on the fucking ground." The girl, who was lying on her bed, rolled onto the floor, where the agents handcuffed her. Next they went to the 11-year-old's room. The girl was sleeping. Agents woke her up by shouting "Get down on the fucking ground." The girl's eyes shot open, but she was, according to her own testimony, "frozen in fear." So the agents dragged her onto the floor. While one agent handcuffed her, another held a gun to her head.
Moments later the two daughters were carried into the living room and placed next to their parents on the floor while DEA agents ransacked their home. After 30 minutes, the agents removed the children's handcuffs. After two hours, the agents realized they had the wrong house—the product of a sloppy license plate transcription—and left.
The raid occurred in 2008 under the Bush administration, but Obama's Justice Department nevertheless defended the agents in May of this year, arguing in a brief to the 9th Circuit that "the DEA agents' conduct was plainly reasonable under the circumstances." (The circumstances being that the agents thought they were raiding the home of a drug dealer who'd had prior run-ins with the police.) The 9th Circuit ruled thusly:
"A jury could find that the agents pointed their guns at the head of an eleven-year-old girl, 'like they were going to shoot [her],' while she lay on the floor in handcuffs, and that it was excessive for them to do so," reads the Ninth Circuit's decision, which was filed June 12. "Similarly, a jury could find that the agents' decision to force the two girls to lie face down on the floor with their hands cuffed behind their backs was unreasonable."
While the Avinas' request for a summary judgement clearly didn't go how they imagined when they submitted it to the lower court, the 9th Circuit's ruling, and the DOJ's decision not to appeal, means the Avinas and their daughters will have a chance to tell their version of the raid to a jury. According to Ray Buendia, the Avinas' lawyer, "[T]he trial court has already set dates to move the case towards trial."
*A reader has objected to the original headline, which said "putting a gun to an 11-year-old's head," because there was no evidence in the brief filed by the Avinas, or in the 9th Circuit's ruling, that the officer's gun touched the little girl's head. The reader insists that the most common reading of the expression "put a gun to my head" implies the barrel touches flesh. I'd rather be clear than right, so I've changed to "pointing at."