Today a grand jury in Habersham County, Georgia, rejected criminal charges against the police officers who planned and executed a horribly botched drug raid that left a toddler critically injured last May. The grand jury faulted the task force that carried out the raid, which included Cornelia police officers and Habersham County sheriff's deputies, for a "hurried" and "sloppy" investigation that was "not in accordance with the best practices and procedures." But the jurors concluded that the team's negligence, which put 19-month-old Bounkham "Bou Bou" Phonesavanh in the hospital for a month after a flashbang grenade exploded in his crib, did not amount to a crime.
In their presentment, the jurors said the "zeal to hold [drug dealers] accountable must not override cautious and patient judgment." They suggested such zeal leads to unnecessarily aggressive tactics that increase the likelihood of injury. "We recommend that whenever reasonably possible, suspects be arrested away from a home when doing so can be accomplished without extra risk to law enforcement and to citizens," they wrote. "Going into a home with the highest level of entry should be reserved for those cases where it is absolutely necessary."
At the same time, the jurors expressed sympathy for the officers who participated in the raid:
Rather than seeing unfeeling or uncaring robots, what has not been seen before by others and talked or written about is that these individuals are suffering as well. We have seen and heard genuine regret and sadness on the part of the law enforcement officers involved, and we think is it fair and appropriate to point out that they are human beings as well.
I'm sure the cops feel bad about burning and mutilating a little boy, but that does not absolve them of responsibility for their reckless behavior. The early-morning, no-knock SWAT raid was aimed at an alleged meth dealer who no longer lived in the house, where Bou Bou and his family, including three sisters, were staying with relatives after a fire destroyed their home in Wisconsin. Although the aggressive tactics were supposedly justified by an expectation of violence, no weapons (or drugs) were found in the house, and the suspect was unarmed when he was arrested later that day at a different location. Habersham County Sheriff Joey Terrell and Cornelia Police Chief Rick Darby said their officers would not have used a flashbang if they knew children were living in the house they attacked. But even the most rudimentary surveillance would have revealed that fact.
"Every effort should be made in determining the presence of children," the grand jury said. "Some of what contributed to this tragedy can be attributed to well-intentioned people getting in too big a hurry, and not slowing down and taking enough time to consider the possible consequences of their actions. While no person surely intended any harm to a young child, quite simply put there should be no such thing as an 'emergency' in drug investigations."
Philip Holloway, a criminal defense attorney and former Cobb County prosecutor, sees a contradiction between the grand jury's findings and its conclusion that no one was criminally negligent. "One might argue that the grand jury is speaking out of both sides of its mouth," Holloway told The Atlanta Journal-Constitution. "On the one hand, the presentment speaks in terms of criminal negligence by the task force, including severely deficient supervision. Yet on the other hand, they elected not to recommend any criminal charges." Holloway added that "if an ordinary citizen were to act with the reckless disregard described by this grand jury, there can be little doubt that criminal charges would be filed."
A federal investigation of the raid is continuing, and the Phonesavanhs are expected to file a civil suit, especially since Habersham County reneged on Terrell's promise to cover Bou Bou's medical expenses.