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JIMERSON V. LEWIS, 2024 WL 640247 (5th Cir. 2024)
A Drug Enforcement Administration (DEA) agent asked the local police department to assist in executing a search warrant on a suspected methamphetamine “stash” house. The agent provided the SWAT commander with information about a drug deal involving the target house and gave descriptive information and an accurate address for the target house. The SWAT commander requested pictures of the target house and asked whether “the location was fortified,” whether “it appeared to have surveillance equipment,” and whether “there were any exterior indicators on the property that children may be present.” He also asked for identifying information on the alleged dealer and any prior law enforcement history at the address. The DEA provided pictures showing the front of the house and reported there was “surveillance established at the location.” DEA agents also said they saw no fortification, surveillance cameras or evidence of children.
When the SWAT commander analyzed the information on the agency’s SWAT risk matrix, the request scored within the range for “optional SWAT deployment.” The SWAT commander asked for and received permission from the chief to activate the SWAT team. He also gathered his own information on the target house from the property tax records.
The commander briefed SWAT operators, then received “real-time intelligence that surveillance officers at the scene reported a truck pulling a white box trailer had pulled up in front of the target location.” After the commander reviewed a copy of the warrant and personally confirmed the address, the SWAT team drove to the neighborhood of the target house.
As the operators exited their vehicles, an officer pointed to the house with the truck and white trailer in front of it, and officers began their approach. As the SWAT team gathered on the front porch, however, the commander suddenly realized the house did not look like the house from intelligence photos. The SWAT team had assembled at 583 8th Street, not at the target house listed on the warrant as 573 8th Street.
The commander looked one house to the left and thought the front of that house looked like the house in the intel photos; this was also the wrong house. It was 593 8th Street, two doors down from the target house. Even so, the commander directed the team to the house just to their left. Operators ran up to the house, deployed flash bang munitions, broke and raked the front windows, and breached the door. The officers began a protective sweep. When they saw two women, they told them to get on the ground. Just as operators encountered an adult male, SWAT team members yelled “Wrong house!”
The SWAT team quickly left the second incorrectly identified house and proceeded to the third (and finally correct) house. After the target house was secured, the commander returned to the second house and called an ambulance for one of the women, Karen Jimerson, who had been injured when she was taken to the floor.
Jimerson sued the officers, alleging multiple Fourth Amendment and state law violations. The trial court denied qualified immunity for the SWAT team commander. However, the appellate court reversed. The court held that, while the commander’s efforts to identify the correct residence were deficient, they did not violate clearly established law. An internal investigation by the department concluded that “reasonable and normal protocol was completely overlooked.” The chief of police stated, “These kinds of mistakes should not happen,” and suspended the commander.
As the inimitable Gordon Graham says, predictable is preventable. Could the execution at the second wrong house have been prevented? One hopes this case will prompt every SWAT scout and commander to scout twice, flash bang once.
