Mimesis Law
16 November 2018

Turning Point? Posner Rejects Qualified Immunity In Evansville No Knock Raid Case

Aug. 18, 2015 (Mimesis Law) — On June 20, 2012 in Evansville, Indiana, someone on the Internet threatened to kill police officers. Apparently in Indiana, one cannot use speech that threatens police or their family even if there is no apparent imminent or immediate danger to anyone. Because, well, #bluelivesmatter.

In any event, Evansville decided to take action, found out the IP address where the threat appeared to come from, then verified the location by “wardriving,” which means that they drove by the house with a computer. They were able to confirm that the house had a wireless account.

So, because of the danger involved (remember, they threatened to kill police officers, which is what started it), the police decided to use SWAT, who knocked, announced, broke windows and threw in flash-bangs. They then busted the door in, and secured the two occupants of the house. They handcuffed these potential threats to their safety and marched them outside; past the television crew they brought with them to memorialize their victory, and proceeded to seize all the computer equipment in the house. But there was no evidence on these computers.

You see the police didn’t pay attention to the fact that the wireless network was unsecured, even though they discussed that fact, and that others may have accessed the network from outside the home. Even though the police discussed the person who lived a couple of houses down the street, you know, the same person who confessed and who eventually pleaded guilty to making the threats.

Nope, we gotta go in that house.

They knock and announce, banging on the door, yelling “Police! Search Warrant!” three time in three seconds, before busting a window and throwing in two explosive devices, and then busting in the door.

Did I mention that the door was an unlocked glass storm door? That the main door was open? No matter, they still broke out the glass to gain entry. Knobs are for n00bs.

Because, well, officer safety. Or something. Like maybe it looks good to the TV crew that was filming. The optics of smashing the glass door to a cop killer’s home play great on the tube.

Even though the owner of the house was a 68-year-old black female, who lived there with an 18-year-old adopted daughter (who looked 13), it was potentially dangerous to the officers, according to their “risk chart.” One officer said it was the highest risk level he had ever seen.

Yeah, so that’s why you brought the TV news crew? And let them film from where they could have been shot from the house had there actually been a threat?

So they do all this, but at some point realize, oops. They send a city work crew to fix the busted door and window, and the Chief apologizes for the inconvenience, knowing that will make everything okay. Because, well, officer safety matters, and he did apologize.

But then they figured out that the guy down the street did it after they actually investigated, and called him. He then drove himself down to the police station and turned himself in. Without a SWAT team.

And now the city and the police are upset because the little old 68-year-old lady filed an excessive force lawsuit, and well, doesn’t she understand that they did it this way to protect her, er, the public, er, police officers, er someone? Maybe the TV crew?

The city’s attorneys, ever vigilant of the public fisc, trot out the motion for summary judgment based on qualified immunity. It usually works, and they can make the nasty lawsuit go away. Moreover, to make sure that everyone could see their point, they included the helmet camera video from one of the SWAT guys. See how nice and professionally the officers treated the little old lady and the young lady after they realized they weren’t a threat to the officers? After they broken their glass door, tossed flash-bangs, pointed guns, put on cuffs and scared the hell out of them?

Well, not this time. The federal district judge for the Southern District of Indiana, William T. Lawrence, Jr., wasn’t buying the police story, at least not all of it. First, he slammed the detectives for not conducting a proper investigation, but dismissed the unlawful search and false arrest claims, noting that there was probable cause for the search warrant, a very low threshold.

But Judge Lawrence refused to dismiss the excessive and unlawful force claims, primarily due to the use of the flash-bang explosive devices. So the city appealed. Surely the Seventh Circuit Court will understand that this was, well, super-special police SWAT stuff.

This probably caused a city attorney or two to cry, but the Seventh Circuit affirmed Judge Lawrence’s decision. Judge Richard Posner wrote the opinion for the court, and compared the Evansville Police to the Keystone Kops. Judge Posner noted that the very brief police surveillance of the home showed that only females lived there, that no males were seen even visiting. He noted that the time allowed by the police for people to answer the door after they “announced” was not reasonable and pointed out that the police had not obtained a “no knock” warrant.

Judge Posner then talked about the flash-bangs, or, in his terms, “bombs” that were used. He noted that they could hurt people, or kill, if they landed on a child, for instance. He wrote:

“[T]he 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.”

This wasn’t some scenario he made up, it was from a prior opinion, five years earlier, in 2010. The officers didn’t check the area, they just busted the window and threw in the “bombs.” They left the fire extinguisher in the SWAT truck, three houses down the road. Maybe their arms were filled with other things, like weapons and battering rams.

You see, qualified immunity protects police officers if a reasonable officer may have acted in the same way, or if the law was not clearly established. Here, you have neither prong. It wasn’t reasonable, and the law was clearly established.

Qualified immunity, according to the Supreme Court, serves to protect “all but the plainly incompetent or those who knowingly violate the law.”

I don’t think the Evansville SWAT team knowingly violated the law. But I’m also not going to say they were plainly incompetent. You should make up your own mind. Because, well, SWAT lives matter.

Main image via Flickr/Fort George G. Meade Public Affairs Office

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