International Assn. of Chiefs of Police
Legal Officers Section & Police Psychological Services Section
2001 Conference materials


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Critical Incident Liability

Carl Milazzo

cmilazzo@hotmail.com

Former Assistant Executive Director
AELE Law Enforcement Legal Center
www.aele.org

I. Introduction

      The increasing use of technology, refinement of tactics, and specialized units to confront dangerous tactical situations can outpace the traditional legal training provided to officers.  It is important to remember that there are no “special” rules for “special” operations.  The same Fourth Amendment principles governing a lone officer on a traffic stop equally apply to a special unit on a tactical mission.  In other words, it is the facts that change – not the law.  Increased litigation over critical incident response has given courts more opportunity to apply the law to unique factual situations.  Any tactical refinement of special operations should be integrated with legal developments.  The following is an overview of various situations encountered by tactical units, with selected cases to highlight various issues in accordance with the time available for this presentation.

II. High Risk Building Entry

     A. Warrantless Entry

     The general rule is that police need one of three things to enter private premises: (1) consent, (2) a warrant (either for arrest or search), or (3) exigent circumstances.  The longer you stay on scene negotiating or maintaining a perimeter, the less likely you will be able to rely on an exigency to force a warrantless entry.  Therefore, as soon as practical, someone should be designated to draft an affidavit and obtain a search or arrest warrant.  Any injury that occurs will inevitably lead to an analysis of whether the initial entry was lawful.  Having an impartial review by a judicial official before entering clearly helps justify the entry.  There is no obligation to execute a warrant immediately, and it may not need to be executed at all if negotiations produce a voluntary exit by the suspect.

     Obviously, circumstances do not always permit the time needed to obtain a search warrant.  Even after a warrantless entry occurs, officers may only secure the premises and briefly look for other victims or accomplices.  Maryland v. Buie, 494 U.S.  325 (1990).  There is no crime scene search exception to the Fourth Amendment, and a warrant is required before searching further.  Mincey v. Arizona, 437 U.S. 385 (1978).

     In O'Brien v. City of Grand Rapids, 23 F.3d 990 (6th Cir. 1994), a city was liable for a policy of routinely failing to obtain warrants in "critical incidents," regardless of circumstances.  The police chief and an officer were entitled to qualified immunity for warrantless probes into the home of an armed man who was barricaded in his house for six hours.  However, the court ruled that the warrantless probes were not justified by exigent circumstances when the man had not pointed a gun at anyone or threatened to use it.

     B. No Knock Entries

     Wilson v. Arkansas, 514 U.S. 927 (1995), and Richards v. Wisconsin, 520 U.S. 385 (1997). A "no knock" entry is justified when the police have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime; but the Fourth Amendment does not permit a blanket exception to the knock and announce requirement for felony drug investigations.

     C. Surveillance

     U.S. v. Kyllo, 533 U.S. --, 121 S.Ct. 2038 (2001) When using a device that is not in general public use (Thermovision), to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a search and is presumptively unreasonable without a warrant.

III. Weapons

     A. Lethal

     B. Less than Lethal

          1. Flashbangs

     Kirk v. Watkins, 1999 U.S. App. LEXIS 12043 (1999) (unpublished).  Officer entitled to qualified immunity after tossing flashbang into a room while executing a no knock search warrant.  Device landed on a bed, injuring an occupant. Although unpublished, this opinion is a good basis for research because it contains a thorough review of all reported cases from other jurisdictions addressing the use of flashbangs.  Because it was unpublished, the only subsequent case to cite it is U.S. v. Folks, 236 F.3d 384 (7th Cir. 2001). 

     Mitchell v. Kansas City, 2000 U.S. Dist. LEXIS 19195 (D. Kan. 2000).  “Because the officers believed that drugs and weapons were located within the home, the use of a diversionary device was reasonable to effectuate the safest entry possible. Accordingly, the court finds that any officer of reasonable competence would have made the same choice to utilize a distraction device in these circumstances. Thus, while the deployment of such diversionary devices should not be used as a routine matter, (citing United States v. Myers, 106 F.3d 936, 940 (10th Cir. 1997) and Jenkins v. Wood, 81 F.3d 988, 996-98 (10th Cir. 1996)), the court finds that the evidence, even when viewed in the light most favorable to plaintiffs, fails to establish a constitutional violation.”

     United States v. Myers, 106 F.3d 936, 940 (10th Cir. 1997). “The use of a ‘flashbang’ device in a house where innocent and unsuspecting children sleep gives us great pause. Certainly, we could not countenance the use of such a device as a routine matter. However, we also recognize that we must review the agents' actions from the perspective of reasonable agents on the scene, who are legitimately concerned with not only doing their job but with their own safety. Although it might seem that the [Kansas Bureau of Investigation]'s actions in this case come dangerously close to a Fourth Amendment violation, we cannot say that their actions were objectively unreasonable given the district court's factual findings. The district court found that the agents knew that Mr. Myers had a history of illegal drug trafficking, and had spent time in federal prison for a firebombing incident, although they were unsuccessful in learning of the details of the incident. The district court obviously credited police testimony that Mr. Myers's lengthy pattern of criminal activity - beginning with the fire bombing in 1971 and continuing until the cocaine conviction in 1988 - made them apprehensive.”

     Langford v. Superior Court, 43 Cal. 3d 21, 729 P.2d 822, 827, 233 Cal. Rptr. 387 (1987)(officers may only detonate device after they have seen fully into a targeted room).

     Commonwealth v. Garner, 423 Mass. 735, 672 N.E.2d 510 (1996) (holding that officers did not unreasonably execute warrant when officer broke window and dropped flash-bang  device  into bedroom where four-year-old child was present, even though he failed to look inside bedroom first as required by department policy).

     In Atkins v. City of Dallas and City of Carrollton, 1997 U.S. Dist. LEXIS 4983 (N.D. Tex.), officers executed a search warrant using a “dynamic entry” with a battering ram and flashbang, dressed in black uniforms and masks, and carrying automatic weapons.  However, the current occupant and his wife who was seven months pregnant, were not the correct target.  The intended target had stopped leasing the premises and moved out at least one month prior.  The court denied a  §1983 claim against each municipality, finding that there was no failure to train or a custom and policy leading to the mistaken entry.  The court remanded the case to state court to resolve the numerous pendent state claims.

          2. Bean Bags

     Deorle v. Rutherford, 263 F.3d 1106 (9th Cir. 2001) An emotionally disturbed plaintiff was shot with a beanbag round while advancing on an officer.  The beanbag removed plaintiff’s eye and left lead shot in his skull. Court denied qualified immunity, but held that use of beanbag round was not deadly force.  The court stressed that the officer gave no warning and there was no immediate safety threat.  In a footnote (11), the court states,

     In another footnote (14), the court quotes the plaintiff’s expert:

     This court also attached great significance to the mental state of the plaintiff, stating, “In the case of mentally unbalanced persons, the use of officers and others trained in the art of counseling is ordinarily advisable, and may provide the best means of ending the crisis. Even when an emotionally disturbed individual is ‘acting out’ and inviting officers to use deadly force to subdue him, the governmental interest in using such force is diminished by the fact that the officers are confronted, not with a criminal, but with a mentally ill person.”

          3. Taser

     Good empirical research regarding the effectiveness of various less than lethal weapons and the ratio of suspect and officer injuries is available at http://home.earthlink.net/~gregmeyer/.  The newer versions of Taser weaponry is much more effective than the previous technology, and the use of the newer versions is growing quickly in law enforcement.  In this case, the technology has raced ahead of the case law, and there will certainly be some future litigation on a device that may soon replace impact weapons and other less than lethal options currently available to officers.

          4. CS gas and property destruction

     In Customer Co. v. Sacramento, 10 Cal. 4th 368; 895 P.2d 900 (1995) the California supreme court denied an inverse condemnation claim under the state constitution after police fired tear gas into a store where a felony suspect fled and barricaded himself.  The court ruled the city was not liable under the state constitution, but might be liable under the state tort claims act.  However, the plaintiff expressly declined to allege a claim under the act because it wanted to recover attorneys fees.  This case also provides an overview of the case law at the time from other jurisdictions on liability for destroying property during law enforcement operations.

     In Patel v. U.S., 823 F. Supp. 696 (N.D.Cal. 1993), an inverse condemnation claim was denied when officers executing a search warrant and arrest warrant fired smoke grenades, tear gas canisters, percussion and flash grenades into a rented residence, causing a fire that destroyed the residence.

IV. Tactics

     A. Ninja Outfits

     A jury verdict reported in the Milwaukee Journal Sentinel (January 17, 2001) underscores the danger of using uniforms that do not adequately identify the offices as police.

     An 18 year old man awarded $130,000 jury verdict against three officers who chased him down with “ninja” outfits on.  Plaintiff alleged that he was walking down the street when several adults, "all dressed in black Ninja costumes," came running at him from behind an apartment building. Plaintiff, thinking he would be robbed or shot, ran and two of the men chased after him. Only one of the men was masked, but both had guns, according to the suit.  Plaintiff saw a marked squad car and ran for help, telling the uniformed officers he was being chased by robbers who had masks and guns.  The uniformed officers drew their guns and ordered the "Ninja" crew to stop, according to the suit. The Ninja officers then identified themselves as narcotics officers.  Plaintiff was taken to police headquarters, booked and put in an adult lockup. He was released almost nine hours later when he was given a juvenile citation for "obstructing an officer."  The citation later was dismissed.

     B. Hostages

     In Salas v. Carpenter, 980 F. 2d 299 (5th Cir. 1992), the county and sheriff were not liable for the death of a courthouse hostage based on the sheriff's alleged order that city SWAT and hostage negotiation teams leave.  He replaced them with county personnel not trained for SWAT or hostage negotiation duties.  However, the court held he did not violate any constitutional rights of the hostage, finding that there is no constitutional duty to have a SWAT team or trained hostage negotiators.

      In Lee v. Williams, 138 F.Supp.2d 748  (E.D. Va. 2001), a deputy unintentionally shot a hostage during a shootout with armed robbers at a grocery store.  In a subsequent §1983 claim, the court granted summary judgment for the deputy, ruling that there was no Fourth Amendment "seizure" of the hostage, since the deputy did not intend to shoot him, but rather did so by accident and intended to shoot the robbers. The court also noted that the hostages were not being used as human shields by the robbers at the time, and were on the ground five to seven feet away from the nearest robber when the deputies opened fire.

     C. Suicide by Cop

     One California appellate court ruled in a lengthy opinion with a number of competing “expert” opinions, “we will not impose a duty that requires police officers to choose between refusing to offer assistance at the scene of a threatened suicide or assuming full responsibility for the suicidal individual's welfare. This choice discourages police officers from rendering assistance in these inherently unpredictable situations in which even highly trained mental health professionals cannot guarantee success. Any reduction in the availability of police assistance at the scene of threatened suicides would severely compromise public safety and likely result in more deaths or injuries.” Adams v. City of Fremont, 68 Cal. App. 4th 243, 80 Cal.Rptr. 2d 196 (1998).

      D. Snipers

      An FBI sniper at the Ruby Ridge standoff in Idaho during 1992 was both sued and criminally prosecuted after shooting and unintentionally killing suspects wife.

      CivilHarris v. Horiuchi, 126 F.3d 1189 (9th Cir. 1997), cert. denied 522 U.S. 1115, 118 S. Ct. 1051 (1998).  FBI sniper and 13 other federal agents not entitled to qualified immunity.  Specifically regarding the sniper, the court stated,

     CriminalIdaho v. Horiuchi, 215 F.3d 986 (9th Cir. 2000), rehg. en banc. 228 F.3d 1069 (2000), vacated (unpublished) as moot by 2001 U.S. App. LEXIS 20412 (Sep. 14, 2001).  9th Circuit originally ruled that the Supremacy clause did not bar a state criminal prosecution of a federal agent, but eventually vacated opinion as moot after a newly elected state District Attorney decided not to continue prosecution of agent.

     E. Protests

     Grider v. Louisville, 180 F.3d 739 (6th Cir. 1999) approves of various measures taken by a city in anticipation of a Klan rally, including separation with bike rack fencing, magnetometer searches, road closures, and parking bans.

     Headwaters Forest Def. v. County of Humboldt, 211 F.3d 1121 (9th Cir. 2000), vacated and remanded, 2001 U.S. LEXIS 5482, 70 U.S.L.W. 3233 (U.S. Oct. 1, 2001)(for proceeding consistent with Saucier v. Katz).  9th Circuit originally ruled that use of pepper spray applied to peaceful protester’s eyes with a cotton swab was not objectively reasonable.

V. Staff Support

     A. Legal Advisor

     B. Psychologist

     C. Medical

VI. Theories of Liability

     A. Federal

          1. Excessive Force

     Humes v. Gilless, 154 F. Supp. 2d 1353 (W.D. Tenn. 2001) (motion to dismiss denied in suit against Sheriff, command staff and training director after staging a simulated jail takeover using probationary officers as role player inmate hostage takers without training.  Jail staff was not informed it was an exercise, fake metal guns were used, jail staff was kicked and confined for at least 20 minutes without knowing it was an exercise).

           2. Deliberate Indifference

                 a. Negligent Retention

                 b. Failure to Train

     Zuchel v. City of Denver, 997 F.2d 730 (10th Cir. 1993)(affirming a jury verdict against the Denver PD for inadequate deadly force training.  The DA wrote a letter to the Chief suggesting better training, which was attached as an appendix to the opinion.  The issue was not on the amount of training, but on the type of training.  Specifically, the plaintiff alleged the lack of meaningful "shoot - don't shoot" training constituted a deliberate indifference to a known risk).

     B. State - Duty to Protect and Negligence

     Webster v. Heckler & Koch, Inc., 50 Va. Cir. 103  (1999)(during training at a private facility, a ceiling collapsed after repeatedly using flashbangs. A motion for judgment notwithstanding the verdict was denied after a jury awarded damages to plaintiff officers because a duty of care existed and the jury could hear the negligence claim).