Last October a grand jury in Habersham County, Georgia, concluded that a botched 2014 drug raid in which local cops gravely injured a toddler, though "tragic," was not criminal. In a federal lawsuit filed last week, the little boy's parents, Bounkham and Alecia Phonesavanh, make the case that the paramilitary assault was nevertheless "reckless," "plainly incompetent," and "objectively unreasonable." It is hard to disagree. The Phonesavanhs, who are seeking compensation for medical expenses, pain and suffering, lost income, and emotional distress, also argue that police obtained the no-knock search warrant they were serving under false pretenses. The defendants—nine law enforcement officers who participated in the raid, helped set it up, or supervised those who did—should be anxious to make sure a jury never hears the case.
At the time of the raid, the Phonesavanhs and their four children—a boy, Bou Bou, then 19 months old, and three girls, ages 7, 5, and 3—were staying with Bounkham's sister, Amanda Thonetheva, in Cornelia because their house in Wisconsin had been destroyed by a fire. Around 2 a.m. on May 28, "seven or more" members of a "special response team" that included Cornelia police officers and Habersham County sheriff's deputies burst into the room where the Phonesavanhs were sleeping, looking for Bounkham's nephew, Wanis Thonetheva, who allegedly had sold a confidential informant $50 worth of methamphetamine. Thonetheva was not there, and neither were the drugs or weapons that police expected to find. But as the cops stormed the house in the middle of the night, one of the sheriff's deputies, Charles Long, tossed a flash-bang grenade that landed in the portable playpen where Bou Bou was sleeping and exploded in his face.
The resulting damage included "blast burn injuries to the face and chest; a complex laceration of the nose, upper lip and face; 20% of the right upper lip missing; the external nose being separated from the underlying bone; and a large avulsion bum injury to the chest with a resulting left pulmonary contusion and sepsis." After the attack, the Phonesavanhs say, police forcibly prevented them from going to Bou Bou's aid and lied about the extent of his injuries, attributing the blood in the playpen to a lost tooth. The boy's parents did not realize how badly he had been hurt until they arrived at the hospital where police took him. Bou Bou, who was initially placed in a medically induced coma, had to undergo a series of reparative surgeries that will continue into adulthood. The family's medical bills so far total around $1.6 million. According to the lawsuit, a sheriff's deputy "told the medical providers that the Habersham County Sheriff's Office would be responsible for all bills incurred." Sheriff Joey Terrell (one of the defendants) publicly made the same promise. Later the county reneged.
The grand jury report, a conflicted combination of sympathy for the Phonesavanhs and for the cops who nearly killed their son, emphasizes that "the specific device involved in this matter was a 'mini-bang' and not the larger available device." The implication—that police showed restraint when they burned and mutilated a toddler with an explosive device, since they could have used a bigger one—illustrates the grand jurors' eagerness to downplay the appalling recklessness that sent Bou Bou to the hospital with horrifying injuries.
According to the complaint, Long threw the grenade into the room without looking, having been authorized to use the device "at least an hour before the search began." That authorization was contrary to "a strict policy prohibiting the use of flash bang stun grenades where children might be present." Terrell and Cornelia Police Chief Rick Darby said the cops had no idea that children were living in the house. But the Phonesavanhs had been there for two months, and the evidence of their presence should have been obvious to anyone paying attention.
The grand jurors clearly were troubled by the cops' lackadaisical investigation of this question, saying "it should be assumed that children ARE present unless strong evidence suggests otherwise." Yet the jurors shied away from stating the obvious: that police were shockingly cavalier about the possibility that innocent bystanders would be hurt during the raid. "The evidence we heard did not reveal that nobody bothered to ask and inquire as to the presence of children," the report says. "Indeed there is evidence that questions were asked. However, when more can be reasonably done it should be, including surveillance and records checks."
A report on the raid provided by Terrell implied that police did all they reasonably could to make sure there were no children in the home. "According to all the information able to be gathered at the time," it says, "there were no children or dogs at the residence." Yet the Phonesavanhs note that "a clearly identifiable case" for Bou Bou's portable playpen was sitting outside the house, next to the door breached by the SWAT team. The minivan parked in the driveway through which the cops approached the house contained four child seats and "had figures affixed to the rear window indicating the presence of a family with several children." In the yard were "children's toys, including a plastic child's pool." Even if the cops missed these clues in their hurry to break down the door, rudimentary surveillance prior to the raid would have revealed the presence of children, who frequently played with their father in the front yard. A little surveillance might also have revealed that Wanis Thonetheva no longer lived in the house and was not present at the time of the raid.
When she applied for a warrant a couple of hours before the raid, Nikki Autry, a special agent with the Mountain Judicial Circuit Narcotics Criminal Investigation and Suppression Team, claimed a confidential informant "was able to purchase a quantity of methamphetamine from Wanis Thonetheva at Thonetheva's residence," which she identified as the house where the Phonesavanhs were staying. She said she had "confirmed that there are several individuals outside of the residence standing 'guard.'" Terrell's report describes them as "a couple of adult male subjects at the residence standing 'guard' outside the door to the finished garage area" (which is where the Phonesavanhs were sleeping). It says the C.I. (as opposed to Autry) reported seeing them and was not sure whether they were armed.
According to the Phonesavanhs' complaint, which names Autry as one of the defendants, none of that was true: The C.I. "had not purchased drugs 'from the residence' as alleged" and "had not been inside the residence." The complaint says there were no guards, armed or otherwise, and the C.I. was not known to be reliable, contrary to what Autry claimed in her affidavit. Autry also cited "several vehicles in the driveway" and "heavy traffic in and out of the residence," which you might see at a drug dealer's house—or at anyone's house during a visit by out-of-town relatives with four children.
To justify her request for a no-knock warrant, which allows police to enter without announcing themselves, Autry said she was "aware of weapons being present at the residence on previous occasions." According to Terrell's report, that was a reference to a 2013 "aggravated assault involving an AK-47 assault rifle" at the house. So that's one weapon on one occasion, nearly a year before the raid. And according to the Phonesavanhs' complaint, the rifle did not belong to Thonetheva, who was unarmed and unresisting when he was arrested at his own home after the raid. Autry also cited "the possibility of the destruction of evidence." Always a possibility, of course, except that in this case there was no evidence to destroy and no one to destroy it.
In the aftermath of the raid, Autry agreed to surrender her certification as a Georgia peace officer, meaning she can no longer work in law enforcement. The grand jurors, who faulted Autry (although not by name) for a "hurried" and "sloppy" investigation, "gave serious and lengthy consideration as to whether to recommend criminal charges" against her but decided that the resolution she negotiated was "more appropriate than criminal charges and potential jail time." The grand jury also decided that Long's reckless use of the flash-bang grenade did not amount to criminal negligence.
Whatever you may think of the jurors' judgment on those points, they correctly identified a false sense of urgency as the main explanation for this sickening fiasco (emphasis added):
The zeal to hold [drug dealers] accountable must not override cautious and patient judgment….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….
No seizure of evidence or apprehension of a criminal for a drug offense warrants anything but caution and careful planning. There is an inherent danger both to law enforcement officers and to innocent third parties in many of these situations. The hard work and effort brought to apprehend suspects and seize evidence must always be tempered by the realization that no amount of drugs is worth a member of the public being harmed, even if unintentionally, or a law enforcement officer being harmed….
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. Going into a home with the highest level of entry should be reserved for those cases where it is absolutely necessary. This is to protect both citizens and law enforcement officers. We have heard evidence that many drug suspects often initially believe a law enforcement entry is in fact a drug robbery. In an instant, they reach for a weapon or take an action that makes a situation escalate. This is dangerous to all involved, and neither the public nor law enforcement officers should be in this dangerous split second situation unless it is absolutely necessary for the protection of the public, which is the highest concern for our law enforcement officers under their duty.
On the face of it, these observations support the Phonesavanhs' argument that police used excessive force in this case. But the fact that such excessive force is so common makes it harder to argue that police should know it's unconstitutional. The special circumstances of this case—a baby horribly injured in a fruitless raid triggered by a $50 drug sale—make plain the unjustifiable violence that defines the war on drugs.