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Did noise-flash distraction device amount to excessive force on 2-year-old?

A trial court denied qualified immunity when SWAT officers were sued for causing PTSD to a 2-year-old child

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The court of appeals agreed with the denial of qualified immunity for the SWAT operators.


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J. v. Kansas City Board of Police Commissioners, 931 F.3d 672 (8th Cir. 2019)

Detectives investigating a murder were tracing the victim’s missing cell phone. Shortly after the murder, the phone was used to call a residence on Bristol Avenue. At one point, investigators narrowed the location of the phone to within 80 meters of a particular intersection, an area including both the Bristol Avenue residence and two apartment buildings on nearby Winchester Avenue. While standing between the two Winchester apartment buildings, an investigator could hear a phone ringing when a third officer called the victim’s phone number. However, the officers were unable to pinpoint the exact location of the phone.

A short time later, officers learned the victim’s phone was near an intersection. When an investigator called the phone, someone answered but said nothing. The investigator heard background noises that sounded like a kitchen restaurant. Checking lists of names of employees working that evening from five restaurants near the intersection, investigators discovered Lee Charles was working at one of those restaurants at the time of the call. The victim’s phone records also showed the phone had been used after the murder to call a Family Dollar store. Investigators learned Charles was employed at the store and his home address was listed as the Bristol Avenue residence.

Charles was located and arrested. Investigators obtained a search warrant for what they believed to be Charles’s residence on Bristol Avenue. The warrant application failed to mention the officers had heard the victim’s phone ringing in the Winchester apartments – but not at the Bristol Avenue residence. Officers did no surveillance to determine who was living or present at the Bristol Avenue residence.

A SWAT team was called to serve the search warrant. The warrant did not authorize a “no-knock” entry. There were both screen and inner doors at the front. Officers knocked on the door and announced, “Police, search warrant!” At the time, there were four people inside the residence: a 2-year-old girl, an 84-year-old woman, a 68-year-old woman and a 24-year-old woman. The youngest woman grabbed the keys to the door and opened the screen door.

One officer testified when the 24-year-old saw the officers, she froze, keys in hand. Another officer testified the woman refused to open the door. A SWAT operator ripped a hole in the screen door and tossed a noise-flash distraction device. The device started a fire on the drapes in the living room where the 2-year-old child was located. The SWAT operators zip-tied two of the three women but were unable to get the 84-year-old woman cuffed. Officers later learned Charles had not lived at that address for several months.

The trial court denied qualified immunity when the officers were sued for causing PTSD to the 2-year-old child. The appellate court reversed in part, holding the detectives were protected from the suit because the search warrant affidavit established probable cause, even if it omitted important information.

The court of appeals agreed with the denial of qualified immunity for the SWAT operators. The court observed the SWAT operators had no reason to believe the persons inside the house posed any threat. The court was particularly critical of the inadequate scout and intelligence gathering, observing the SWAT operators “had no idea who was inside the house because they failed to do any investigation into that question beyond a quick drive-by to check the address. The use of a flash-bang grenade under these facts was not reasonable. They threw the flash-bang grenade into the house blindly without knowing whether children, elderly or other innocent individuals were inside.”

A police officer and former prosecutor, Ken Wallentine is Chief of Law Enforcement for the Utah Attorney General. Traffic detentions and passenger issues are discussed in his new book, Street Legal: A Guide to Pre-trial Criminal Procedure for Police, Prosecutors, and Defenders, published by the American Bar Association Press.