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Use of excessive force in home entry means loss of qualified immunity

Louise Milan v. Billy Bolin, et al., 7th Circuit Court of Appeals No. 15-1207, 7/31/15

Police officers who conducted a SWAT raid on the wrong home weren’t entitled to qualified immunity because of their “insouciance” about another, more probable suspect of the crime being investigated and “the perfunctory nature of their investigation before the search….” (Slip op. at 4).

Police investigating online threats against the police department determined the threats were posted from an Internet Protocol (IP) address registered to the home of 68-year-old Louise Milan and her 18-year-old daughter. But it turns out Milan’s WiFi network was unsecured, which means that anyone close enough to poach off the network could have posted the threats as well as Milan herself. The police knew there was an insecure network near Milan’s house, but—in “a failure of responsible police practice” (slip op. at 3)—they didn’t bother finding out whether that unsecured network was Milan’s before obtaining a search warrant. They executed the warrant in full SWAT-team style, including not waiting for a response to their knock on the front door (though they didn’t get a no-knock warrant), detonating “flash bang” grenades, and handcuffing Milan and her daughter before taking them out of the house. (Slip op. at 2-5).

Just before the search, officers saw a guy named Murray on the porch of house two doors down from Milan. Two officers thought Murray was a more likely source of the threats, as he’d made threats against police in the past and had been convicted of intimidating a police officer. But the police—having identified a few miscreants who were distant relations to Milan, though without apparently determining their connection to her household—pressed on. Needlessly, as it turns out, for soon after entering the home the police figured out Milan had nothing to do with the threats. Another day of investigation showed it was Murray who’d posted the threats using Milan’s open WiFi network. (Slip op. at 2-6). Under all the circumstances, the police lost qualified immunity for their actions because their “perfunctory, indeed radically incomplete, preliminary investigation” rendered the forceful method of executing the warrant unreasonable:

Police are not to be criticized for taking threats against them and their families seriously. But flash bangs are destructive and dangerous and not to be used in a search of a private home occupied so far as the police knew only by an elderly woman and her two daughters. We cannot understand the failure of the police, before flash banging the house, to conduct a more extensive investigation of the actual suspects: Murray, living two doors away from the Milan home and thus with ready access to Mrs. Milan’s open network, and the male Milans. The police neglect of Murray is almost incomprehensible. His past made him a prime suspect. A day of investigating him would have nailed him, as we know because a day of investigating—the day after the violent search of the home—did nail him. The district judge’s denial of the defendants’ motion for summary judgment appears eminently reasonable when one puts together the flash bangs, the skimpy basis for the search and its prematurity—the failure to check whether the network was open and the failure to conduct a more extensive investigation before deciding that flash bangs were appropriate means of initiating the search, the resulting neglect of Murray, and the handcuffing of the daughter. (Slip op. at 7).

While this search was supposedly so dangerous it necessitated SWAT-team tactics, the police invited a television news crew along for some “exclusive video” (though the camera crew didn’t go inside, which would have been another Fourth Amendment violation, Wilson v. Lane, 526 U.S. 603, 611 (1999)). For an inside view, there’s helmet video from one of the SWAT cops. WARNING: Loud noises from “flash bang” grenades (“[t]he police call them ‘distraction devices,’ an absurd euphemism; we called them ‘bombs’ in [two previous cases]” (slip op. at 5)); displays of “formidable rifles pointed forward” (slip op. at 6); and handcuffing of harmless citizens (slip op. at 6).

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