Legal & Liability Management Tactical, SWAT, Emergency Response Operations 2012
Thoughts on Liability…
Knock and Announce Whittier v. Kobayashi- (11 th Cir- 8/31/09) • Whittier’s son selling narcotics and always carries handgun/shotgun in bedroom • Plan-8 man team to do entry • 14 officers heard knock- 1 did not • Neighbors did not hear knock • Breach-son ran to bedroom racked shotgun- shot
Allegations • Failure to knock and announce led to shooting • Court: A reasonable officer would have arguable reasonable suspicion that exigent circumstances existed to enter without knocking and announcing
Prescription Drugs Impacting Fitness Question: Team member has depression and attention deficit disorder-what should we do? Consider: Jensen v. City of Oxnard
Decision to Use Team Whitewater v. Goss, (10 th Cir. 2007) Plaintiff attacked blanket policy of using SWAT on all warrants Plaintiff attacked holding 12 year old at gunpoint for 15 minutes Court: Blanket Policy didn’t authorize excess force and gun-pointing policy did not authorize unreasonable pointing-agency off hook
Decision to Use the Team Bruce v Orange County FL (11 th Cir. 2007) • Automobile customer complains about VIN • Administrative search carried out with SWAT- pointing guns etc. • Proper paperwork shown but no backoff • SWAT not a reasonable execution of administrative warrant
Duties in a SWAT Operation • 4 th Amendment – Reasonableness- Entry – Reasonableness-Use of Tactics – Reasonableness-Use of Force – 1 st Amendment-Mass Protests
The Plaintiff’s Brass Ring Get the Agency on the Hook: • Bad Policy or Custom/Practice/No Policy • Bad Training • Poor Supervision • Poor Discipline • Poor Selection
Barricaded/Suicidal Subject Estate of Rudy Escobedo v. Martin, 2012 U.S. App. LEXIS 25443 (7 th Cir. 12/13/2012 ) • Fort Wayne-CRT and EST callout • CRT not making progress • Decision to use gas • Command Officers sued • Positioning of gun at time of shooting
Wrong House Los Angeles County v. Rettele et al., 550 U.S. ___, 127 S.Ct. 1989 (2008). • Get out • Don’t Search • Apologize • Minimize Damage • Fix it
But see Smith v. City of Jacksonville, Kansas • No policy on verifying house • Should hit 104/green house no carport • Hit 108/green house with carport • Officer yelling “wrong house” • 2 men in front held at gunpoint • Mrs. Smith-proned, handcuffed, held
Failure in Policy-SWAT • Solis v. City of Columbus, 319 F. Supp. 2d 797 (So. Dist. Ohio 2004). – Agency has potential liability- No policy on dynamic entry/no-knock that requires a verification of address before this tactic is used.
Neace v. City of Massilon, 2006 U.S. Dist. LEXIS 65678 (N.D. Ohio Eastern Div. 2006). • Raid with shooting • : “There are no written or specific unwritten policies in Massillon governing how raids are to be conducted, [how ] the officer in charge has the authority to assemble the team, gain entry to the target, and otherwise execute the raid.”
Cont’d • The raid team in this case was assembled immediately prior to the raid's execution by selecting officers available at the station, and without contacting either Chief Weldon or the START team. Some of the officers involved in this incident had no prior experience or specific training in conducting raids.
• The Court concludes that the issue of municipal liability in this case is a question for a jury. When viewed in the light most favorable to the Plaintiff, Massillon's lack of any policies or regimental training in the conduct of raids arguably resulted in a defective raid with too few officers, some of whom were inadequately experienced. These deficiencies arguably caused the shooting of the Plaintiff. Defendant Massillon, therefore, is not entitled to summary judgment.”
Failure to Train… • Standard-Deliberate Indifference • Two Methods – Failure to train in an area where the need for training is patently obvious (single incident may be sufficient) – Pattern of conduct leading to constitutional violations such that the final policy maker is on notice and has failed to correct the conduct through training.
SPECIAL OPERATIONS • 16 hours per month • 25 % of full-time
Taylor v. County of Berks, 20 03U.S.Dist. LEXIS 23699 (3 rd Cir. 2003) • Plaintiff on 2 nd floor sees team coming and yells: WRONG HOUSE! • Officers tell her to come down and open-by the time she gets there-door broken down • Plaintiff held at gunpoint while officers searched house until told via radio-WRONG HOUSE! • NOTE: Rear door of rowhouses (no #)
Conclusion… • Specifically, Defendant's policy for executing raids makes absolutely no mention of a requirement that, or a procedure by which, officers verify that they are at the correct location before doing damage to a home. • Given that Berks County officers perform raids in the backyards of rowhouses where there are no house numbers and where it is easy to mistake one home for another, a reasonable jury could conclude that Defendant's failure to train its officers to verify their location constitutes deliberate indifference as to whether the officers violate citizens' rights by entering their homes illegally.
Training Issues • Conditioned Response • Training Accidents – After Lunch – New Weapon Introduced – One Last Scenario – Scenario Boredom
Liability in Tactical Operations Possible Exposures
What are the liabilities • Having a team… • Selecting the team… • Training the team… • Pre- Operation Issues… • The Operation… • The Execution of the Plan… • The Aftermath…
The Decision to Use the Team for Warrant Entries DYNAMIC ENTRY Equals Heightened Use of Force
Cases • Holland v. La Plata, 268 F.3d 1179 (10 th 2001). • Ealum v. La Plata, 46 Fed.Appx. 587 (10 th 2002). • Phillips v. James, 422 F.3d 1075 (10 th 2005). • McCraken v. Freed, 2006 U.S. Dist. LEXIS 924 (Dist PA. 2006)
What do the Cases Say?
“In Holland we concluded that the decision to deploy a SWAT team was subject to a Fourth Amendment requirement of reasonableness because it "largely determines how the seizure is carried out, thereby determining the extent of the intrusion on the individual's Fourth Amendment interests."
“The decision to activate the tactical team required a heightened degree of caution because the tactical team had the capability to make an overwhelming show of force”
“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. Indeed, it is the SWAT team's extraordinary and overwhelming show of force that makes "dynamic entry" a viable law enforcement tactic in dealing with difficult and dangerous situations.”
SWAT and Pointing Guns
La Plata County, Colorado • Holland v. La Plata, 268 F.3d 1179 (10 th 2001) – Disturbance/Assault/SWAT executes warrant – Guns pointed at children – Court denied summary judgment and QI
Ealum v. La Plata, 46 Fed.Appx. 587 Guns pointed at children and grandmother as well as rough handling of persons present may be considered excessive force. It is not reasonable to take down every person present-even on a dynamic entry.
Tactical Considerations with Innocent 3 rd Parties Presence • Boyd v. Benton County – Flash Bang used notwithstanding police knowledge of several innocent parties sleeping in residence where high-risk entry was taking place – Unreasonable to throw it “blind” into room where innocent persons may be – BUT QI
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