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By: Wayne Melnick
In a truly team effort, Freeman Mathis & Gary partners Wayne S. Melnick and Brian R. Dempsey, along with of counsel Chuck Reed and associate Ali Sabzevari, won summary judgment in a first-of-its-kind case in the Northern District of Georgia. This is the first ruling in the Eleventh Circuit regarding whether a SWAT officer’s use of a noise-flash diversionary device (“flash bang”) is protected by qualified immunity.
Plaintiff was severely burned by a flash bang during the execution of no-knock search warrant for narcotics. Plaintiff alleged that she was asleep in bed with her boyfriend (the target of the warrant), when they were each awakened in the early morning hours by an explosion and the sound of breaking glass. When she looked up and saw that the bedroom window had been broken out (via a “break-and-rake” technique performed by a SWAT officer), she then saw was a round object land on the blanket covering her on the bed. The object exploded with a blinding flash and loud boom. Plaintiff alleged that she felt searing pain at that point and ran from the room into the bathroom across the hall where she was discovered and handcuffed by the officers searching for her boyfriend.
In her complaint, plaintiff brought a Section 1983 claim and related state law claims, alleging the officers knew that the bedroom was occupied and that the officer deploying the flash bang did so despite the known danger to the room’s occupants.
Earlier in the case, the district court denied a motion for judgment on the pleadings. In accepting plaintiff’s allegations as true, the court accepted plaintiff’s allegation that the officer intentionally tossed the flash bang onto a sleeping person, and that this was sufficient to demonstrate constitutional rules so clear that case law need not establish the unlawfulness of such conduct. The court likewise found the allegations of an intentional, malicious act sufficient to deny official immunity on the state law claims.
However, at summary judgment, the court no longer had to accept plaintiff’s mere allegations as true. Although plaintiff alleged (and testified) that the officer deployed the flash bang through the window, this was specifically disputed by the officer who stated that he certainly did not know she was in the bedroom and he had actually made an aerial deployment of the flash bang outside the apartment.
Even accepting that the flash bang was actually deployed within the apartment as plaintiff testified, the court still found qualified immunity applied. The court first found that no constitutional violation occurred because the use of the flash bang was reasonable based on the known facts (and not merely plaintiff’s unsupported allegations) of how plaintiff’s drug-dealer boyfriend operated and the fact that he was armed. The court also noted that there was no evidence to support that the officer’s intended use for the flash bang was for anything other than diversionary purposes.
Not only did the court find that no constitutional violation was committed, it also found that the claimed constitutional right was not clearly established. Noting no precedent in the Eleventh Circuit regarding flash bang usage, the court was unwilling to find that the “obvious clarity” exception to qualified immunity applied. Importantly, the court noted that other courts around the nation have held that deploying a flash bang into a residence, even without surveying the room first, did not preclude qualified immunity.
In the end, although plaintiff alleged that the officer intentionally deployed the flash bang into the room to hurt her, the defense was able to demonstrate those allegations were not supported by any evidence. Without that element, plaintiff’s section 1983 and state law claims failed as a matter of law.
As the now-lead case on point in the Eleventh Circuit, this case is expected to be cited any time a person claims injury due to flash bang deployment. By finding the law not clearly established on this point, this win will go a long way in helping defend flash bang cases as FMG’s Government practice section continues to do. If you would like a copy of the district court’s opinion, please contact Wayne directly at [email protected].