Police, The Fourth Amendment, Qualified Immunity

Judge Bashant decides that it is not always reasonable to use a SWAT team

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Case: Little v. Gore, Dist. Court, SD California 2015

Facts: SWAT raid over a disputed number of marijuana plants.


Stevens and Sobczak move to dismiss the second cause of action on the grounds that “[d]escribing the execution of the search warrant as `SWAT-style’ and identifying the clothes worn and the weapons carried by the officers does not make the search unlawful.” (ECF No. 7-1 at p. 5.) In the Complaint, Plaintiffs allege that the Defendant Officers executed the search warrant at approximately 5:00 a.m. on October 17, 2012, unannounced, and “stormed” the property wearing military fatigues and using assault rifles “in a SWAT-style raid with weapons drawn.” (Compl. at ¶¶ 15, 16, 37.) Plaintiffs allege that the execution of the search in such a manner was unreasonable in violation of the Fourth and Fourteenth Amendments. (Id. at ¶ 37.)

The deployment of a SWAT team in the dark with weapons drawn may be considered unreasonable in light of the totality of the circumstances. See Bravo, 665 F. 3d. at 1086 (“SWAT officers’ nighttime searches . . . constitute much greater intrusions on one’s privacy than ordinary daytime searches and carry a much higher risk of injury to persons and property); Alexander v. City & Cnty. of S.F., 29 F.3d 1355, 1366-67 (9th Cir. 1994) (explaining that a jury might conclude that deployment of a SWAT team for the purpose of inspecting property was excessive); Holland ex rel. Overdorff v. Harrington, 268 F.3d 1179, 1190 (10th Cir. 2001) (“[T]he decision to deploy a SWAT team to execute a warrant must be `reasonable’ because it largely determines how the seizure is carried out, thereby determining the extent of the intrusion on the individual’s Fourth Amendment interests.”); Estate of Smith v. Marasco, 430 F.3d 140, 149 (3d Cir. 2005) (“[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.'”); Rush v. City of Mansfield, 771 F. Supp. 2d 827, 857-59 (N.D. Ohio 2011) (finding a reasonable jury could conclude that the use of a SWAT-style team was unreasonable). “The decision to deploy a SWAT team to execute a warrant necessarily involves the decision to make an overwhelming show of force — force far greater than that normally applied in police encounters with citizens.” Holland ex rel. Overdorff, 268 F.3d at 1190. Therefore, as the Ninth Circuit has stated, a “nighttime incursion by a SWAT force is a far more serious occurrence than an ordinary daytime intrusion pursuant to a regular warrant and therefore requires higher justification beyond mere probable cause to search.” Bravo, 665 F.3d. at 1086.

Given the alleged time and manner of the search, the Court finds Plaintiffs have pleaded “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. Accordingly, the Court DENIES the motion to dismiss filed by Stevens and Sobczak on the second cause of action

Written by Burgers Allday

December 16, 2015 at 8:26 pm

Posted in Uncategorized

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