Court considers SWAT team's detonation of stun grenade near baby in overturning drug conviction
By CHRISTOPHER INGRAHAM | The Washington Post | Published: January 13, 2017
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-bang 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."
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 Indiana.
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 conduct.
"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, Indiana, 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.
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 Constitution.
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 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."
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.
Watkins'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."
Sgt. 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 said.
"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."
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 on.
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 time.
They ultimately settled with Phonesavanh's family to the tune of $3.6 million. 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.