7th Circuit Blasts Evansville Flash Bang Search, Notes Racial Factor

Dave Stafford for wwwtheindianalawyer.com

Evansville police “committed too many mistakes to pass the test of reasonableness” in a bungled home search and are not shielded from a federal excessive force lawsuit, the 7th Circuit Court of Appeals ruled Friday.

An armored phalanx of SWAT officers raided the home that 68-year-old Louise Milan shared with her two daughters. Officers investigating anonymous online threats against police began their search by smashing a window and the glass storm door – the front door was open – then lobbing flash bang grenades inside.

The 7th Circuit also noted a racial element in allowing Milan’s suit against the Evansville Police Department to move forward. Judges called events related to the bungled raid “almost inconceivable,” “dangerous” and “disturbing.”

The opinion affirmed denial of summary judgment for the police department on Milan’s excessive force claim, upholding a ruling by Judge William T. Lawrence  of the U.S. District Court for the Southern District of Indiana, Evansville Division.

Milan’s home was searched a day after authorities became aware of threats made against police through an unsecured Wi-Fi network in Milan’s home.

The heavily armed 11-member SWAT team, followed by a local TV news crew, descended on Louise Milan’s home with a search warrant in June 2012. “Police decided to search the Milan house – and in a violent manner,” Judge Richard Posner wrote for the panel in a scathing eight-page opinion in Louise Milan v. Billy Bolin, in his individual capacity as Evansville Police Department Chief, et al.,  15-1207.

“The members of the SWAT team rushed to the front door of the house, knocked, and without allowing a reasonable time — more than a few seconds — for a response … broke open the front door and a nearby window, and through these openings hurled two ‘flash bang’ grenades. … The police call them ‘distraction devices,’ an absurd euphemism; we called them ‘bombs’ in Estate of Escobedo v. Bender, 600 F.3d 770, 784–85 (7th Cir. 2010), and United States v. Jones, 214 F.3d 836, 837–38 (7th Cir. 2000)

Before the search of Milan’s home, which yielded no sign of criminal activity or male suspects, police had observed Derrick Murray sitting on a porch a few doors down. Murray previously had been convicted of intimidation for threatening police, and he ultimately pleaded guilty to posting the threats in the instant case.

After police searched Milan’s home, “It took them only a day to discover that it was indeed (Murray),” Posner wrote. “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. …

“It took them only a day to discover that it was indeed he who was responsible — he had used Mrs. Milan’s open network to threaten the police. But rather than give him the SWAT-team treatment, the police politely requested that he come to police headquarters, which he did, where he was arrested without incident. … The police department’s kid-gloves treatment of Murray is in startling contrast to their flash-bang assault on Mrs. Milan’s home,” the panel noted.

“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 (WiFi) 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 failure to discover that the network was Mrs. Milan’s was a failure of responsible police practice,” Posner wrote.

During the course of the search, police handcuffed Milan and her 18-year-old daughter; Milan’s other daughter was not home at the time of the search. All of this was recorded on officers’ helmet-cam video, and scenes from the search were shown on local TV news. The panel was troubled by the images.

“The members of the team are seen on the tapes impressively clad in body armor and big helmets and carrying formidable rifles pointed forward. It would take a brave criminal to try to fight it out with them, and of course there was no criminal in the house and little reason to expect one to be there,” Posner wrote.

“The handcuffing of the daughter, looking indeed much younger than her 18 years, is shown on the helmet video along with the rest of the search, and she is so small, frail, utterly harmless looking, and completely unresisting that the sight of her being led away in handcuffs is disturbing. All that the SWAT officer had to do was take her by the hand and lead her out of the house, which was rapidly filling with smoke from the flash bangs; there was no conceivable reason to handcuff her.

“From what we can observe on the videos, all the members of the SWAT team were white, Mrs. Milan and her daughter black; the broadcasting of the videotape cannot have helped race relations in Evansville,” Posner wrote.

The panel also cited its previous Estate of Escobedo decision that cautioned against the use of flash bang devices, which can be lethal if a person is directly struck by one. In this case, the police defendants’ argument that they are shielded by qualified immunity falls short, the panel held.

“Precipitate use of flash bangs to launch a search has troubled us before, leading us to declare that ‘the use of a flash bang grenade is reasonable only when there is a dangerous suspect and a dangerous entry point for the police, when the police have checked to see if innocent individuals are around before deploying the device, when the police have visually inspected the area where the device will be used and when the police carry a fire extinguisher,’” Posner wrote.

“The police in this case flunked the test just quoted. True, they’d brought a fire extinguisher with them — but, as if in tribute to Mack Sennett’s Keystone Kops, they left it in their armored SWAT vehicle.”