Botched SWAT raid produces pro-plaintiff qualified immunity ruling

This case involves a SWAT raid gone awry, or as the Court of Appeals puts it, a "botched" SWAT raid. The victims of this raid sued the police. The district court allowed some of the claims to proceed to trial, but defendants take up an immediate appeal. For the most part, the Court of Appeals rejects defendants' arguments and says the case must proceed to trial

The case is Terebesi v. Torreso, decided on August 21. The police got a search warrant for Terebesi's home after they had reason to believe he had stashed away a small amount of drugs. The SWAT team ram-jammed their way into the house, using stun-grenades. The raid did not go quite as planned. An occupant of the house was accidentally killed, and the stun-grenades started a fire in the house. The police found a small amount of crack cocaine, but no weapons were found.

Plaintiff sues for excessive force. Since this claim arises from Section 1983 (the federal civil rights statute), the police officers can get off the hook on qualified immunity grounds. This immunity gives the police the benefit of the doubt if they acted objectively reasonably at the time of the incident or if the law at the time was not clearly-established. The Second Circuit (Sack, Chin and Droney) provides a tutorial on qualified immunity in explaining why the case can go to trial.

First, there is no clearly-established right under the Fourth Amendment to be free from a tactical SWAT raid to execute a search warrant. If the cases are not clear in this area, the Court will not expect the police to be legal scholars and anticipate future court rulings that might frown upon the practice. That is what law professors are for. So that claim dies.

The other claims survive, however. The Court says the case law has held over the years that officers who authorize or direct a raid that employs the use of force to effect a search or seizure must comply with Fourth Amendment standards. This clearly-established body of law puts the officers on notice that they could be sued for a bad raid plan that violates the Constitution.

As for the stun-grenades (which can cause fires and "detonate with a blinding flash of light and deafening explosion ... to temporarily stun people in a targeted building" until law enforcement can get inside), the Court says that "the principles governing police use of force [as set forth by Supreme Court precedent) must be applied to claims challenging the use of the distraction device when executing a search warrant." The use of all sorts of police weaponry can violate clearly-established law even if no case in particular address a particular weapon. As the Court reminds us, you do not need a case that is precisely on point to show that the law governing that activity violates clearly-established law. Since this was not a high-risk search -- but a more routine one -- involving a search for a small amount of drugs that the occupant had for personal use, the jury must decide whether the use of the stun-grenades was reasonable at the time, particularly since the officers had no reason to know that plaintiff had a propensity toward violence.

Qualified immunity is also denied on other claims,including whether it was reasonable for the officers to enter the house without knocking and announcing. The jury must decide whether this tactic was reasonable in light of evidence that defendants knew the drugs were for the plaintiff's personal use and that he was not guilty of any violent or grave offense.

If you handle Section 1983 cases, this is the case for you. Enjoy the thorough summary of qualified immunity principles and some new language on police techniques that can give rise to litigation. One small point of interest to qualified immunity junkies is the Court's observation that clearly-established law can be determined by reviewing not just Supreme Court and Second Circuit cases but also rulings from other federal appellate courts.