February 1, 2017 (Fault Lines) — It’s not often that anyone in the criminal defense community has something nice to say about Judge Pryor of the 11th Circuit. But, a recent opinion disallowing the use of flashbangs on sleeping people in pursuit of small amounts of marijuana allows for some extremely faint praise. The court’s ruling did not shock the conscience.
are explosive devices, similar to but a good deal less lethal than military hand grenades, that are intended to stun and disorient persons, thus rendering them harmless, by emitting blinding flashes of light and deafening sounds. They can kill if they land on a person, especially a child. The police call them “distraction devices,” an absurd euphemism; we called them “bombs.”
As the 11th Circuit opinion notes:
The manual classifies flashbangs as explosives that can
generate heat in “excess of 2,000 degrees centigrade,” a flash of light up to 80
times brighter than the flashbulb of a camera, and over 150 decibels of noise for less than one half of a second.
Yes, flashbangs are no joking matter. When these bombs detonate prematurely, officers are can be killed. When they go off exactly as planned, people (and infants) are often terribly burned. This case was no exception.
A confidential informant in Clayton County, Georgia claimed that he observed Jason Ward with a small amount of marijuana. Because Ward had sold marijuana in the past, and allegedly carried a handgun, police requested and received a no-knock warrant—justified because drug dealers are dangerous.
Police began a terrifying raid on the apartment. Ward’s girlfriend, Treneshia Dukes, was sleeping over that night when she and Ward heard the loud boom of an explosive going off outside their apartment and the window shattering. Somehow figuring out that this meant the police were at hand, Ward grabbed his gun from under his pillow and threw it out into the hallway.
Dukes was so terrified that she hardly noticed what had happened. As she was waking up, she saw an object heading towards her face. It landed on her thigh, exploded, and she ran into the bathroom. In the aftermath, the room was blackened with soot and smoke.
Dukes ended up spending three days in the hospital with severe burns. She sued, and the officers offered up their customary defense—they were entitled to qualified immunity because no one had ever specifically held that throwing bombs at sleeping people constituted excessive force under the 4th Amendment. They prevailed, and she appealed to the 11th Circuit.
Okay, so here’s where we have to settle for very small victories. The 11th Circuit agreed that the cops were entitled to qualified immunity, but they actually ruled on whether using flashbangs on sleeping people without checking where they are is excessive force. And that by itself is sadly special, since courts can normally grant immunity ad nauseum without ever really addressing whether the conduct violates the Constitution.
The language is surprisingly robust:
Deaton’s conduct posed a significant risk of harm. He threw a flashbang that can generate heat in excess of 2,000 degrees Celsius into a dark room in which the occupants were asleep. He also failed to inspect the room, as he was trained to do, to determine whether bystanders, such as Dukes, occupied the room or if other hazards existed. And there existed minimal need for Deaton’s use of force.
There was minimal need because the police had already deployed two flashbangs. They were there in overwhelming numbers. And the crime they were chasing, possession of a small amount of marijuana, wasn’t worth the amount of force they were employing. Pryor even brought out a nifty little alliterative phrase: “Deaton deployed a dangerous device into a dark room for a de minimis return.” Shivers, you guys.
Since it no longer seems likely that Pryor will end up on the Supreme Court of the United States this go-round, us denizens of the 11th Circuit can take heart. The next time that a police officer busts into a house seeking a small amount of marijuana and throws a flashbang grenade into a room where there are two sleeping people, it will be clearly established that it’s a bad thing to do. Of course, if the details vary, however slightly, all that is out the window and there will simply be a new grant of immunity to review.
But in the qualified immunity world, we’ll take all the heat and smoke and soot we can get if it sheds a little light.