police4aqi

Police, The Fourth Amendment, Qualified Immunity

Flashbang grenades and an important point about this blog

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In my humble opinion:  Probably the main point of this blog is that courts tend to draw the (sometimes fuzzy) lines on 4A protections differently in the context of civil cases against the police than they do in criminal cases where 4A is used as a basis for invoking the exclusionary rule (for example, at a “suppression hearing”).  A big collorary, is that I think that citizens tend to get more 4A protection against government actors when the 4A is interpreted (that is, “expounded”), in civil cases, rather than criminal cases.  Another collorary is that I think that the law should be adjusted so that civil cases become the main vehicle for determining the law of the Fourth Amendment.

Flashbangs: This brings me to the subject of today’s case, which involves police use of flashbang grenades. While police frequently use flashbangs, I think the use of flashbangs by civilian police in the U.S. should always be automatically considered as excessive force in violation of the Fourth Amendment. Here is a Radley Balko blog post* that illustrates the reasons why I feel as I do about police use of flashbangs.

Case: Milan v. City of Evansville, Dist. Court, SD Indiana 2015

What happened: Civil plaintiff left her home wifi connection open and a neighbor used the connection to post threats against police. Police got a warrant and raided plaintiff’s home using flashbang grenades. Thankfully no one was physically injured, and the police issued a written apology (!!!) and repaired damage to plaintiff’s home. Plaintiff sued anyway because the flashbangs were so frightening to her and made a show that was embarrassing to her.

Decision: Civil suit against the police survives summary judgement and can go forward to jury trial. The court’s opinion states: “[T]he videos show that the SWAT team officers broke through Milan’s window and door and tossed (rather than strategically placed) the distraction devices into her home within seconds of arriving at her front door. It is questionable whether the officers had sufficient time to look inside to ensure that no one would be injured by the devices. It is also undisputed that the officers were not carrying a fire extinguisher during the search. These facts lead the Court to conclude that there are questions of fact regarding whether the Defendants’ actions were unreasonable and excessive.”

Comment: Civil courts, especially in the Seventh Circuit, are leading the way in providing Fourth Amendment limits on police use of flashbangs. I have not seen similar limits arising from criminal cases, and I think this is a good example of civil cases providing 4A protections that criminal cases cannot (because courts don’t want to let criminals go free).

FOOTNOTE:

* I am a bit skeptical about Mr. Balko’s point that flashbangs have a legitimate police use against those in the process of committing violent crimes because I can’t imagine any scenarios where a police officer would use a flashbang instead of using her gun, and further because in situations where police officers are going to use their guns, then they should keep flashbangs out of the mix to prevent collateral damage.

Written by Burgers Allday

January 17, 2015 at 7:27 am

Posted in Uncategorized

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