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Attorneys at Freeman Mathis & Gary, LLP recently obtained a favorable ruling for officers in a Section 1983 lawsuit wherein a woman alleged that she was injured by a flashbang allegedly thrown through her bedroom window and into the room where she was sleeping.
Judge William Pryor Jr. writing for the Eleventh Circuit held that deploying a flashbang into a dark room occupied by two sleeping individuals without first performing a visual inspection violates the Fourth Amendment. The Eleventh Circuit nevertheless found that the officers are entitled to qualified immunity because they did not violate clearly established law.
“This is an important opinion because it is a matter of first impression in the Eleventh Circuit,” said the winning lawyer who argued the case before the Eleventh Circuit, Wayne Melnick of Freeman Mathis & Gary. “Courts around the nation–federal and state–are split regarding the application of immunity in cases involving flashbang usage.” Melnick and A. Ali Sabzevari of FMG successfully defended the officers obtaining summary judgment at the trial court level and the affirmance on appeal.
While the Eleventh Circuit certainly could have declined to reach the issue of whether there was a constitutional violation, the Eleventh Circuit opted not to and sent a message to the law enforcement community that if an officer deploys a flashbang into a dark room occupied by sleeping individuals, without first visually inspecting the room, that officer’s action constitutes excessive force in violation of the Fourth Amendment. All municipalities that utilize flashbangs for less-than-lethal force are strongly recommended to review this new opinion and advise their officers regarding same.