Police Abuse

SWAT Team Liable for Wrong-House Flash-Bang Raid on Grandmother, Teen Girl; Can Be Sued For Their Actions

Judge Richard Posner compares police action to Keystone Kops.

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Reason reported back in 2012 on a wrong-door smash-and-flashbang SWAT raid on a home in Evansville, Indiana. As Calvin Thompson wrote then:

When Evansville, Indiana, police officers started receiving threats against their families, they acted fast. The police traced the threats to the IP address of the Milan family on East Powell Avenue. And on June 21, they sent in a SWAT team to put on an impressive show of force. 

Evansville police arrived at the the home of 18-year-old Stephanie Milan and her grandmother, smashing an already-open door and tossing a couple of flashbang grenades in the building….

After smashing the window and busting open the door, they throw in two flashbang grenades, and then barge into the building to do their thing…

After the raid, police determined that the WiFi connection was unsecured, meaning that anyone could have borrowed the connection to post the threats. Well, mistakes happen.

The Milan family sued the department, and last week the 7th Circuit Court of Appeals decided that the police had no legal immunity for being sued by the Milans for their actions that day. [UPDATE: Adding this up top since this was read ambiguously by some readers, but this decision does not say the cops lost the civil suit. It is saying that their attempt to argue that "qualified immunity insulates them from liability" for being sued at all failed, and, as discussed below, the lawsuit can go on to trial.]

Might be helpful to watch the video before hearing about the Court's decision. Start around minute 3 for action, before then to hear how these dudes comport themselves as they get ready to do some reeeeeeal bad policing:

I think you'll find the reactions of both grandmother and teen girl to be remarkably calm and contained given the absurd and violent circumstances. (There is some possibly horrendous dialog around 5:30 where one officer says "here's a cat" and another a second or so later says "I'll kick it" but it could be that he is referring to a door to knock it open and not the cat.)

In a decision written by the often-interesting and sometimes-libertarian-leaning Richard Posner, Posner notes the sued police:

argue that qualified immunity insulates them from liability—that is, that there was no established legal principle that would have informed them that they were using excessive force.

Posner disagreed, since he notes the police already knew there was an unsecured network near the house, and that they saw before they raided the Milans' two doors down on his porch:

a man named Derrick Murray, whom they knew to have made threats against the police in the past—indeed he had been convicted of intimidating a police officer. At least two of the officers thought him the likeliest source of the threats. Prudence counseled delaying the search for a day or so to try to get a better understanding of the Milan household and of Murray's potential responsibility for the threats. Prudence went by the board.

Bizarre postscript regarding Murray, the guilty party, who, as Posner notes, "A day of investigating him would have nailed him, as we know because a day of investigating—the day after the violent search of the home—did nail him":

that no men were found in the house during the raid confirmed the police in their belief that Murray was responsible for the threats. It took them only a day to discover that it was indeed he who was responsible—he had used Mrs. Milan's open network to threaten the police. But rather than give him the SWAT-team treatment, the police politely requested that he come to police headquarters, which he did, where he was arrested without incident. (He was prosecuted for the threats, pleaded guilty, and was given a sixteen-month prison sentence.) The police department's kid-gloves treatment of Murray is in startling contrast to their flash- bang assault on Mrs. Milan's home.

One hopes they merely had learned a lesson, for at least that week, about the dangers of SWAT raids. Hopefully they learned that they can not only be dangerous and mistaken, but also unnecessary.

Getting to actually see what happened helped Posner declare another aspect of the cops' behavior out of line:

The handcuffing of the daughter, looking indeed much younger than her 18 years, is shown on the helmet video along with the rest of the search, and she is so small, frail, utterly harmless looking, and completely unresisting that the sight of her being led away in handcuffs is disturbing. All that the SWAT officer had to do was take her by the hand and lead her out of the house, which was rapidly filling with smoke from the flash bangs; there was no conceivable reason to handcuff her. From what we can observe on the videos, all the members of the SWAT team were white, Mrs. Milan and her daughter black; the broadcasting of the videotape cannot have helped race relations in Evansville.

Posner concludes that the doctrine of "qualified immunity" for police work does exist and could have covered them even with the use of the flash-bangs, even with the fact they came up with no crime and no criminals, but:

to repeat for emphasis, the police acted unreasonably and precipitately in flash banging the house without a minimally responsible investigation of the threats. The open network expanded the number of possible threateners and just one extra day of surveillance, coupled with a brief investigation of Murray…should have been sufficient to reassure the police that there were no dangerous men lurking in the house.

Precipitate use of flash bangs to launch a search has troubled us before [in a previous case], leading us to declare that "the use of a flash bang grenade is reasonable only when there is a dangerous suspect and a dangerous entry point for the police, when the police have checked to see if innocent individuals are around before deploying the device, when the police have visually inspected the area where the device will be used and when the police carry a fire extinguisher."….

The police in this case flunked the test just quoted. True, they'd brought a fire extinguisher with them—but, as if in tribute to Mack Sennett's Keystone Kops, they left it in their armored SWAT vehicle.

Police did replace a broken door and window and a burnt rug.

The Evansville Courier-Press quotes the Milan's attorney Kyle Biesecker on the suit, which can now go forward to a jury trial:

Milan's lawsuit is asking for unspecified damages as a result of the raid, during which police threw two "flash-bang" grenades into the house while attempting to serve a search warrant.

"It's mostly emotional distress, damages and attorneys fees—and hopefully a policy and procedure change will come out of this so it doesn't happen again," Biesecker said.

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  1. Wow. Why don’t we just let criminals run society!! Our brave men in blue (PBUT) risk their lives EVERY day for you civilian POS, and this is the thanks they get?

    Hope you don’t need their help – tie their hands in knots and then wonder why they don’t rescue you!

    BOOYAH! More training!

    1. Don’t forget more funding! They’re trying to take away valuable asset forfeiture for our heroes now too! There will be chaos if that happens!

    2. Some day an officer will be shown on camera eating a small child alive. And on that day, someone will respond “Our brave heroes get hungry out there, and you jerks ridicule them? Keep starving them and then wonder why they don’t rescue you!”

  2. Well, even teen girls and gradmas need to learn how to respect some authoritah. We have to have some rules and regulations. Good thing grownups are running the show, glibertarians.

  3. Obviously, with hindsight, the SWAT team would have done things differently. No helmet cam next time.

  4. I’m pleasantly surprised that they didn’t just shoot the cat.

    1. It’s sad that that is the current standard of “pleasantly surprised” with cops.

  5. The police can’t be held responsible for a reasonable mistake of address.

    /SCOTUS

  6. here is some possibly horrendous dialog around 5:30 where one officer says “here’s a cat” and another a second or so later says “I’ll kick it”

    Holy shit! I almost spit water on my monitor. I don’t even…

    1. Kick it? NOOOO, it’s a dangerous kitty, it’s coming straight at us! Shoot it now!!!!

      1. They were probably worried it’d turn out to be a zimbabwean lion lured off the preserve.

        1. There’s a little zimbabwean lion inside of every kitty, you can’t be too careful.

  7. intimidating a police officer

    Who among us is not guilty of this heinous crime?

    1. There’s a special place… for people who threaten the police.

      1. Will there be mai-tais in this place?

  8. Settlement without admission of guilt coming up.

    1. BS. I would make every one of them on the team, stand on the court house steps and repeat — “I screwed up. I am sorry” 100 times with the judge standing there counting the whole time.

  9. “I’ll kick it” but it could be that he is referring to a door to knock it open and not the cat.)

    I doubt that very much.

    1. Maybe he was about to dance…

  10. that is, that there was no established legal principle that would have informed them that they were using excessive force.

    Is this another way of saying the police haven’t been trained to not act like jackbooted thugs?

  11. The judge who issued the search warrant is the worst bad guy in this story. The main facilitator of the crime and not even mentioned.

    1. WELL YOU CAN’T SUE HIM SO GET THAT OUT OF YOUR HEAD.

      1. Qualified impunity, bitch.

        1. What you did there, was seen by me.

      2. Since Posner lifted the qualified immunity a case could be made that the Milan’s could. Doubtful it would get far, but fear of malfeasance can clear the mind…

  12. he police politely requested that he come to police headquarters, which he did, where he was arrested without incident

    What kind of message does that send?

  13. At least two of the officers thought him the likeliest source of the threats.

    I wonder how these rat finks will be dealt with.

  14. Oh, thank god this injustice happened to black people. Now there’s a better chance we’ll hear of this in places other than Hit&Run;.

    1. And I just watched the video and it made me sick. That shit should be reserved for active fucking hostage and shooter situations ONLY.

    2. #BlackPropertyRightsMatter

      1. Whoa whoa whoa… “property” is a racist dog whistle.

  15. We need more cops in this country. It’s not fair that everyone doesn’t get to interact with their rightful overlords, good and hard.

  16. there was no established legal principle that would have informed them that they were using excessive force.

    This seems backwards to me. Shouldn’t they use force only as authorized by an established legal principle?

    1. As stated above, if they’re not trained to not shoot unarmed children in the face, then it’s unreasonable to expect them to not shoot unarmed children in the face.

    2. You would think so, but the current state of the law is that unless the police are acting contrary to established legal principle, qualified immunity applies.

      In other words, as long as a cop can argue that there’s no clear precedent holding that his thuggishness and douchebaggery is not okay, he won’t be personally liable to his victims; he gets the benefit of the doubt, and Joe Q. Taxpayer gets the bill (if any). Because LAW AND ORDER.

  17. I’d love it if one of the home router companies turned this into an ad:

    “Look what can happen to you if your wifi is unsecured:

    [Run helmet-cam footage over a blinking banner: ACTUAL SWAT RAID ON HOUSE WITH UNSECURED WIFI.]

    “Yes, these people were innocent of any crime. But, they forgot to set a password on their wifi router, and their creepy neighbor [show picture of Mr. Murray, provided he looks like a three-named white trash serial killer with a skanky beard] used their wifi to send threats to the police. And look what happened to them!

    “Be smart. Use an S-MART Secure WIFI Router. And set the password!”

  18. The police politely requested that he come to police headquarters, which he did, where he was arrested without incident.

    Now where’s the fun in that?

    1. They already got their adrenaline rush followed by being blue balled when no one resisted or fought back.

  19. Nobody should be surprised that a bunch of young men would enjoy suiting up with the latest tactical gear, arming themselves with assault rifles, rolling up in an APC to get the bad guys just like the good guys do on film and TV. Neither should anybody be surprised that cops would over-react to threats of violence against cops. In fact, the cops in the video appeared to execute their mission reasonably well.

    Criticism of the cops in this case is largely misdirected. Sure, they over-reacted and used excessive force. That’s the natural tendency of cops everywhere, and that is why they have to obtain a search warrant before executing a mission like this. The criticism in this case should be directed at the dipsh1t judge who issued the search warrant that authorized this nonsense. His role is to be the reasonable adult in the whole ‘due process’ thing, and he failed miserably in his role. The cops were just doing what cops will do if they are not restrained by the judiciary.

    1. So what you’re saying is let’s just be thankful they didn’t un-necessarily kill some innocent, unarmed people.

      That is what you are saying, isn’t it?

      1. He isn’t saying that. He’s saying pigs gonna oink if nobody keeps an eye on them, which is true. It’s what they do.

  20. Finding a sane judge who doesn’t try to justify damn near anything the police do, particularly when nobody got shot, is almost like finding a unicorn. Way to go guy. Now if there was only some way to hold the judge who signed the warrant accountable.

    1. Paging “Dr.” Lewinski, “Dr.” Lewsinki to Evansville!

  21. “There is some possibly horrendous dialog around 5:30 where one officer says “here’s a cat” and another a second or so later says “I’ll kick it” (…).”
    Horrendous? That’s by the book.

  22. Why didn’t anyone listen to Prudence? Her analysis of the situation was spot-on. Then some a-hole pushed her by the board…

  23. Apply the same rules to lawyers and pundits of all kinds, including law professors and magazine editors. Make all law firms, law schools and magazines liable for their employees actions.

  24. So, the wild pack of armed goons aren’t a problem, ’cause that’s just what baboons do- we should worry about who siccs ’em on ’em?
    Epoxy on both they houses!! (…presses primer bulb three times for one second each and then reaches for pullcord on woodchipper…)

  25. You want policy change? I’ll give you policy change.

    The Milan’s may select any SWAT team(s) of choice, the time and day of the action to be applied to each officer’s residence involved and the nature of how the raid is to be conducted. The cost for such raids shall be borne by the department that initiated the original raid. No warning or tip off is to be offered otherwise the source shall serve the equivalent of a maximum sentence of a obstruction of justice charge. The SWAT team is to be told that the raid is on a drug house, not an officers residence.

    Yeah its eye for an eye. But sometimes that is what it takes to institute attitude change and that is a key problem with many SWAT teams. Too dangerous you say? Well then you just made the case that SWAT teams should not exist.

    1. That works for me. And throw in a little asset forfieture for good measure. Wipe out a bank account or two and listen to them squeal.

  26. Posner is a globalist hack. Abolishing immunity would only make it worse, exacerbate the already dire financial condition, exposure facing America’s cities and towns due to the prosecuted toxic mortgage and LIBOR scams and make it more likely that cities and towns would privatize their police, giving the multinationals even greater control of the United States.

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