8th Circuit Allows SWAT Team to Be Sued Over Use of Flash Bang Grenades

8th Circuit Allows SWAT Team to Be Sued Over Use of Flash Bang Grenades August 1, 2019

My old friend Radley Balko posts about a new ruling from an 8th Circuit Court of Appeals panel that is allowing a suit against a SWAT team from Kansas City PD after they used flash bang grenades to breach a home where they wrongly thought a suspect lived — and they didn’t even have a no-knock warrant. It could be a crack in the qualified immunity that protects police officers from being sued in almost all cases.

The U.S. Court of Appeals for the 8th Circuit issued a somewhat surprising ruling last week, when a three-judge panel voted 2 to 1 to affirm a lower court’s decision to deny qualified immunity to a SWAT team who deployed a flash-bang grenade while serving a search warrant.

In this case, police in Kansas City, Mo., were investigating a murder. But they had already arrested a suspect. The search warrant was for what police believed was the suspect’s home. It turns out that the suspect hadn’t lived in the home for several years, and the police did little to verify who was currently living in the house. The residents — a 24-year-old woman, two elderly women and a 2-year-old — were then subjected to a violent, forced-entry SWAT raid.

The police did not have a no-knock warrant, so under the law, they were supposed to knock, announce themselves and give sufficient time for a resident to answer and let them in. In this case, after knocking, one resident of the house came to the locked screen door and showed them her keys, indicating her intent to open the door and let them in. The SWAT team forced entry anyway, then deployed the flash-bang grenade, which lit a set of drapes on fire.

Oddly, attorneys for the SWAT team argued in court that once the woman saw them in the door, the SWAT team was “compromised” and had no choice but to engage in “dynamic entry” tactics. It’s a revealing argument. The entire point of the knock-and-announce requirement is to give occupants of a home the time to come to the door, let the police in peacefully and avoid violence to their person and damage to their property. That is, the entire point of the knock-and-announce requirement is to compromise the presence of law enforcement.

Now the bad news: If this ruling is appealed and cert is granted, I’d be surprised if the Supreme Court upheld it with its current configuration. Thomas and Alito wouldn’t vote to uphold it if you held a gun to their heads. Kavanaugh and Gorsuch remain to be seen, but there’s little evidence on which to base any confidence that they would do the right thing. And even if they ultimately do get to take the case before a jury, the likelihood of them voting against police officers is slim.

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