Pubdate: Fri, 13 Jan 2017
Source: Washington Post (DC)
Copyright: 2017 The Washington Post Company
Author: Christopher Ingraham


An Indiana court has overturned a man's felony drug convictions
because of a SWAT team's "unreasonable" search that endangered an
infant, a decision that highlights growing concerns about the
militarization of routine police work.

The SWAT team executed a "military-style assault" and detonated a
flash-bank grenade in close proximity to a 9-month-old after a
confidential informant told detectives that he had seen marijuana,
cocaine and a firearm in the home, according to the Indiana Court of
Appeals' enumeration of the facts of the case.

The ruling is unusual because courts rarely overturn convictions in
cases like this, said Peter Kraska, a police militarization expert at
Eastern Kentucky University. He said the case could create a precedent
that complicates how law enforcement agencies use flash-bang grenades
intended to stun and disorient potential foes.

"Generally speaking, most courts support the tactics police are
engaged in," said Kraska, who has studied police militarization for
three decades. The ruling "potentially throws a kink in all SWAT
operations that involve a flash-bang grenade."

[In Iraq, I raided insurgents. In Virginia, the police raided

Deploying SWAT teams to serve search or arrest warrants is becoming
increasingly common, Kraska noted. While SWAT teams use tactics
originally developed by U.S. Navy special operations forces to resolve
hostage situations, Kraska's work shows that 85 percent of SWAT work
today involves carrying out search and arrest warrants like the one in

It is a potentially dangerous trend. ProPublica has documented at
least 50 cases since 2000 of Americans being killed, maimed or injured
by flash-bang grenades -- incendiary devices that emit a loud noise
and bright light. Its investigation found that some police departments
deploy the grenades liberally, on 80 percent or more of the raids they

"This is something that goes on every day across the United States,"
Kraska said. "Police have gotten used to and normalized the use of
SWAT teams in warrant work."

'Unreasonable use of force'

In the Indiana case, detectives obtained a warrant to search the home
of the home of Mario Deon Watkins in Evansville, Ind. after the tip
from the confidential informant. On the morning of Dec. 17, 2014, at
least a dozen SWAT team members, "most armed with assault rifles,"
swarmed the residence, according to court records.

One second after officers knocked on the door of the house and
announced themselves, they smashed the door in with a battering ram,
according to the court. Almost immediately, an officer dropped a
flash-bang grenade inside the doorway.

When officers entered, they found a 9-month-old baby in a playpen
"very close to the door" where the grenade had gone off, court records
state. They removed the baby, who was unharmed according to a police
spokesman, and swept the remainder of the house, finding Watkins, two
other men and one woman in the other rooms. They also uncovered
marijuana, cocaine, narcotic drugs, and a .40 caliber handgun.

[How the Obama administration gives away military-grade weapons to
local police]

Watkins told the officers that everything in the house belonged to
him. He was arrested and later convicted on misdemeanor charges of
possessing controlled substances and marijuana, and felony charges of
cocaine possession and maintaining a common nuisance.

Watkins took his case to the Court of Appeals in Indiana, which issued
its ruling last week. His lawyers argued that the SWAT team's
"military-style assault" was "an unreasonable use of force in the
execution of the search warrant" violating his Fourth Amendment rights
under the U.S. Constitution, and similar provisions of the Indiana

The court agreed. Citing video evidence from the helmet camera of the
officer who deployed the flash-bang grenade, the court found that the
officer did not adequately check for the presence of infants or other
vulnerable individuals in the room who posed no threat to the officers.

As the ProPublica investigation has documented, aim is a key factor
courts use in determining whether flash-bang use is warranted.

"This standard was established in 1987 when the California Supreme
Court ruled that throwing a flash-bang could be considered a
reasonable use of force when officers 'have seen fully into a targeted
room,'" wrote ProPublica's Julia Angwin and Abbie Nehring in 2015.

In the case involving the raid on Mario Watkins's house, "the door was
barely opened when the flash-bang was immediately tossed into the
room," the Indiana court's decision reads, "and the angle at which
Officer Taylor was standing to the door did not allow him an
opportunity to see what was inside the room."

[Police can shoot your dog for no reason. It doesn't have to be that

The court also determined that the use of force was vastly out of
proportion to the threat posed by the residents of the house. Officers
knew of a gun, and some quantities of drugs. But they submitted no
evidence of any prior criminal behavior that the residents had engaged
in. Instead, they maintained that they had "prior dealings" with one
of the residents of the house, but did not describe the contents of
those dealings or whether they were connected to any crime.

"Comparing the factors, we conclude that while there was a
considerable degree of suspicion, the extent of law enforcement needs
for a military-style assault was low and the degree of intrusion was
unreasonably high," Judge Elaine Brown wrote. She goes on:

Under these specific circumstances and particularly in light of the
use of a flash-bang grenade in the same room as a nine-month old baby
who was "very close" to where the flash-bang was deployed, the State
has not demonstrated that the police conduct was reasonable under the
totality of the circumstances.

The court reversed Watkins's convictions.

Watinks's lawyer, Matthew McGovern, said that the decision "does an
excellent job of balancing the interests of law enforcement in keeping
themselves safe, as well as citizens' interest in being protected
against unreasonable searches and seizures."

Sargeant Jason Cullum, a public information officer with the
Evansville Police Department, said that the Watkins case had caused
the department to review and revise its flash-bang training prior to
the court's decision.

Officers don't toss flash-bangs into residences anymore, he

"Now we place them on the threshold [of the entry point]," Cullum
said. "We don't actually put them in the structure. We feel we get the
same effectiveness."

[Wonkblog The feds have resumed a controversial program that lets cops
take stuff and keep it]

Cullum said the officers involved with the Watkins raid characterized
it as a "high-risk" operation, given the information about the firearm
in the house and what he called the criminal history of one of the
residents of the house, which he said he had no further information

This isn't the first time authorities in Evansville have been censured
over excessive and unreasonable use of force. Last year, the city
reached a settlement in a case in which a SWAT team raided the wrong
house, using flash-bang grenades on individuals who had not committed
any crime.

Nor is it the first time the use of flash-bang grenades has put young
children at risk. In 2014, deputies in Georgia executed a "no-knock"
raid on a home in Habersham County. They threw a flash-bang grenade
that landed in the crib of 19-month-old Bounkham "Bou Bou"
Phonesavanh, severely injuring him. The authorities were searching for
the child's uncle on alleged drug crimes, but he was not home at the

They ultimately settled with Phonesavanh's family to the tune of $3.6
million dollars. The lawyer for the child's family told the Atlanta
Journal-Constitution last year that more than two years after the
incident, the child was still recovering from his injuries and facing
more surgeries.
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