From the archives of the Calibre Press Street Survival Newsline
Editor’s note: This article was originally published at the advent of these court decisions. The information surrounding the cases and the basis of the decisions remain relevant.
Two court decisions 3,000 miles apart have sent somewhat mixed messages about what’s “reasonable” when it comes to protecting innocent civilians from harm during tactical operations.
In 1 case, the Massachusetts Supreme Court decided that a SWAT team’s use of a flashbang as part of a surprise forced entry was not unreasonable, even though small children and a pregnant woman were near the explosion site.
This decision, in the opinion of one SWAT legal advisor, is “an unexpectedly refreshing breath of reason concerning police warrant operations” that shows a “surprising grasp” by the court of “how things work in the real world.”
The other case, however, is as alarming as the Massachusetts case is comforting. In that decision, a California appeals court ruled that by taking control of a hostage situation officers established a “duty of care” toward 2 youngsters who ultimately were murdered inside the barricade. The court said the officers and their department are not protected by sovereign immunity from a lawsuit by the kids’ grieving mother.
One police attorney commenting on this case says: “This is a radical departure from case law. We’re going to have to advise our clients [multiple police departments] that the way to reduce liability is to be as passive as possible.”
Although these disparate decisions directly apply only within the jurisdictions their courts cover, they are important to SWAT teams everywhere because they may be researched and offered as precedent in the future when tactical operations come under public or judicial scrutiny. If nothing else, they should prompt you to check with your own SWAT legal advisors to assess how the issues at trial are regarded in your jurisdiction.
In this 2-part series, Calibre Press’s Street Survival Newsline reports the background, the legal reasoning and knowledgeable reaction to both these cases, beginning with the more favorable decision from Massachusetts.
That case is Commonwealth v. Garner [672 N.E.2d 510 (1996)], not to be confused with Tennessee v. Garner, which was a landmark U.S. Supreme Court case from 1985.
The new Garner concerns the execution of a high-risk, no-knock search warrant in New Bedford (MA) to capture a suspect in the shotgun robbery of an all-night convenience store and the rape of the store’s female clerk. The warrant service plan called for the deployment of sniper teams outside the suspect’s apartment and for an officer to break a rear bedroom window and toss in a flashbang as a diversion from the SWAT team’s forced entry.
Besides the suspect, police had learned that another male, a pregnant female and 2 small children might be present in the apartment. Presumably to safeguard them, the officer with the flashbang was supposed to peek into the bedroom before dropping the device in. According to the trial court’s conclusion, however, he failed to do so. A 4-year-old girl was in the bedroom and was “terrified” when the device exploded and the apartment filled with smoke. Then during the SWAT team’s “dynamic and overwhelming” entry, the pregnant woman was struck in the face and abdomen by a door.
During his criminal trial, the suspect tried to get the shotgun and other evidence the raiders seized excluded on grounds that the manner in which police executed the warrant was unreasonable. “Increasingly,” notes 1 observer, “defendants are challenging the way that police conduct search and seizure as a basis for excluding evidence obtained pursuant to a valid search warrant.” Specifically, the suspect argued:
1. The military-style assault on the apartment and the use of the flashbang were unnecessary, given that there were no hostages in the place, no reason to believe that the apartment had been barricaded and no evidence that the occupants were anticipating the raid.
2. The presence of the pregnant woman and 2 kids should have ruled out use of the flashbang. (The child nearest the flashbang was said to have suffered “emotional injuries” from the SWAT entry and “health complaints...associated with smoke inhalation.”)
3. The flashbang was too dangerous to occupants of the apartment because of its potential “health consequences.” Indeed these devices are so inherently dangerous that they should not be allowed without prior judicial authorization.
The trial court found all this convincing and ruled that in the absence of any information that “warranted the strength of the police assault on the premises” the tactics used were unreasonable under the 4th Amendment. This finding “was based not just on the use of the diversionary device, but also on the mode of entry, the number of officers and the way they were dressed” (in black “military” outfits).
The state Supreme Court, however, emphatically rejected this thinking. The high court’s reasoning, in the words of M/Sgt. Steve Emberton, legal counsel to the Illinois State Police, who wrote an excellent analysis of this case for the Illinois Tactical Officers Assn. News, “should give heart even to the tired soul of a SWAT cop.”
First of all, the court said, the question is not whether the entry methods used were “necessary,” but whether they were reasonable. Being able to “theorize alternatives to the actions taken” did not automatically mean that the actions taken were unreasonable. "[S]urprise entry with overwhelming force, accompanied by a strong and stunning diversion, may well have seemed the best way to avoid a deadly gun battle” and get the operation over with as quickly as possible, the court noted. Indeed, given the overwhelming number of successes by police SWAT teams in well-planned dynamic-entry operations, it would seem that this tactic has proven its reasonableness. “Fortunately,” Emberton says, “the Supreme Court understood the need for police to have flexibility.”
As to the use of the flashbang with the woman and children in the dwelling, the court said: Given the weaponry and the possible resistance waiting inside the apartment, the situation was too frightening “to fault the officer for not looking or...for not seeing the child...before he threw in the device.”
Moreover, the court declared, a flashbang “is not intended to be” dangerous. It is “intended to frighten and distract.” What happened to the little girl is regrettable, but realistically the entry “would have been frightening even if the device had been detonated down a hallway....And so...would have been a gun battle.” The court did not feel that the flashbang “contributed greatly to the inherent dangerousness of the situation as a whole.”
With respect to the child’s smoke inhalation, the court found that since the trial court had determined that the flashbang “filled the apartment with smoke,” then it was probable that the use of the device anywhere in the apartment would have had similar effects.
And how about the argument that flashbangs should be deployed only upon prior judicial approval? This, the court said, would require judges to review detailed police plans for forcible entries and make decisions “for which we [the judiciary] are ill equipped by training or experience.”
“Prior judicial authorization would have been an unworkable requirement that would only have increased the overall risks of injury, to both police and suspects alike, by effectively restricting the ready availability of this tool for high-risk operations,” Emberton says. “As a SWAT officer, I must applaud the Massachusetts Supreme Court for having the insight to realize that they do not know everything about...what works in the real world.”
In his ITOA News article, Emberton cautions that the Garner decision “should not be read as [always] endorsing the use of flashbangs irrespective of the presence of small children or pregnant females.” Indeed, SWAT teams should “expect increasing challenges to the use of flashbangs.”
Nonetheless, the Garner case “is a very positive statement.” SWAT members should “familiarize themselves with the arguments presented...and the practical reasoning of the court....It is up to all SWAT officers to be able to articulate their well-reasoned need for using a flashbang during their warrant execution....The survival of the flashbang as a readily available tool for high-risk police operations requires that the police who employ them be ‘legally’ prepared....”
M/Sgt. Emberton can be reached at the Illinois State Police Legal Office (815) 740-3136. For a copy of his article on the Garner case, “A Reality Check by the Supreme Judicial Court,” see the Spring 1997 issue of ITOA News. You can reach the Illinois Tactical Officer’s Association by fax at (847) 459-0147 or by mail at P.O. Box 704, Wheeling, IL 60090-0704.
