Police, The Fourth Amendment, Qualified Immunity

Own guns? Get a SWAT raid rather than a regular warrant service.

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Case: Giordano v. MURANO-NIX, Dist. Court, ED Pennsylvania 2014


Therefore, the only remaining possibility for a Fourth Amendment violation is whether Detective Moreno-Nix’s use of a SWAT team to execute the arrest warrant was excessive force. A decision to employ a SWAT-type team can constitute excessive force if it is not “objectively reasonable” to do so in light of “the totality of the circumstances.” Estate of Smith v. Marasco, 318 F.3d 497, 515 (3d Cir. 2003). The question whether the use of force is “objectively reasonable” is determined by analyzing the factors discussed above, such as the severity of the crime and the threat to public safety.

In Marasco, the Third Circuit could not conclude that the troopers acted unreasonably in activating SERT, a SWAT-like team, because [t]he troopers who were responsible for the decision to activate SERT . . . had limited knowledge of [the target of the SERT team’s] condition at the time the decision was made. Thus, it was not unreasonable for them to conclude that the display of force entailed in the activation of SERT was not “of such an extent as to lead to injury.” Estate of Smith v. Marasco, 430 F.3d 140, 150 (3d Cir. 2005).

More recently, in Hogan v. City of Easton, No. 04-759, 2006 WL 2645158 (E.D. Pa. Sept. 12, 2006), the court found it was “objectively reasonable” for the officers to have had a SWAT team present in light of the fact that the person being arrested was armed and “had fired a shotgun into the basement wall, continued to resist the . . . [o]fficers, and threatened the safety of the [o]fficers and others.” Id. at *13.

Here, Detective Moreno-Nix knew Mr. Giordano had a large number of guns in the house. The Court is not clear on how the defendant had this information, or what her knowledge was on the extent of Mr. Giordano’s gun collection. Her knowledge that Mr. Giordano had a number of guns in his home is supported by the statement attached to the Citizen’s Complaint, listing numerous types of weapons and gun paraphernalia, even if the exact inventory was not known to Detective Moreno-Nix at the time. Dec. 19, 2011 Criminal Complaint at 31-38.

Furthermore, the defendant had information regarding Mr. Giordano’s behavior when confronted, such as domestic disturbance visits from the police, and how Mr. Giordano injured his hand by punching his mother’s headboard while she was in the bed. Detective Moreno-Nix also knew that Mr. Giordano’s behavior was considered threatening and intimidating by his mother, enough to make her leave her home.

It does not appear from the record before the Court that any mitigating factors against using a SWAT team, such as mental illness, were present. Although Mr. Giordano’s arrest was for theft crimes, and the record shows no history of serious violence in his background, there was still a real risk that he would be armed and that there were other guns in the home. These facts demonstrate that employing a SWAT team under these circumstances was a reasonable use of force. Therefore, summary judgment is granted to the defendant on the § 1983 claims to the extent they are based on excessive force.

Comment: This one is likely to anger the 2A crowd. I don’t particularly like this part of the opinion myself.

Written by Burgers Allday

January 13, 2014 at 5:03 pm

Posted in Uncategorized

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