Earlier this year, we covered the story of Louise Milan, a 68-year-old grandmother whose house was raided by a SWAT team (accompanied by a news crew) searching for someone who had made alleged threats against police officers over the internet. Part of the probable cause submitted for the warrant was Milan’s IP address. But the police made no attempt to verify whether any resident of Milan’s house made the threats and ignored the fact that the IP address was linked to an open WiFi connection.
While the presiding judge did take issue with the tactics deployed by the SWAT team (which included turning a regular warrant into a no-knock warrant by only giving Milan a few seconds to respond to their knock before battering down the door and hurling flashbang grenades into the house), he didn’t have much to say about the department’s bogus “an IP address is a person” justification for the raid. This was concerning because the police verified the IP address by wardriving. By doing so, they also could have confirmed the WiFi connection was open and that the threats could have been made by anyone accessing that connection.
The judge, however, refused to grant the defendants summary judgment on the excessive force claims or immunity. This decision was appealed by the police department, which still insists it should be granted qualified immunity. The Seventh Circuit Court of Appeals has a lot to say about the police officers’ actions during this raid and the events leading up to it, none of it good.
First, it points out that the police officers could have performed their due diligence on the IP address before deciding to carry out a raid, but chose not to.
The defendants say they didn’t know that Mrs. Milan’s network was unsecured and therefore accessible by someone outside the house who could use the unsecured network to send the threatening messages. Although the police had discovered that there was an unsecured network near the house, they hadn’t bothered to find out whose network it was, as they could easily have done, precisely because it was unsecured and therefore accessible. Had they done that they would have known that it was Mrs. Milan’s network and, since it was unsecured, that it might have been used (without her knowledge) by someone outside her home to send the threatening messages. The failure to discover that the network was Mrs. Milan’s was a failure of responsible police practice.
The court notes that the officers’ irresponsibility didn’t end there. They also ignored the fact that a man who had made threats against officers in the past (Derrick Murray) was spotted sitting on a porch two houses away from Milan’s by officers prior to the raid. (And, indeed, Murray watched the raid unfold from this same porch.) They also ignored the fact that none of the three other people they suspected of making the threats (former residents of the house/distant relations of Milan) had been observed entering or exiting the house. Instead, they took the IP address and the info obtained from the service provider and went after Milan. And, despite having no evidence someone dangerous might be in Milan’s house, deployed a SWAT team.
So: a house occupied by an elderly woman and her two daughters; no evidence that any criminals would be present during the search although the possibility could not be excluded entirely; no effort to neutralize suspect Murray during the search, as by posting police to watch his house and make sure he didn’t rush over to Mrs. Milan’s house when the search began. But despite their insouciance about Murray and the perfunctory character of their investigation before the search, the police decided to search the Milan house—and in a violent manner.
The “violent manner” is described in greater detail in the opinion. The court grants itself a short tangent during its recounting of the incident to criticize the lingo cops deploy to downplay the violence of their methods and weaponry.
A search warrant was applied for and obtained, and the search was conducted by an eleven-man SWAT team accompanied by a news team. 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 (though they hadn’t gotten a “no knock” warrant) broke open the front door and a nearby window, and through these openings hurled two “flash bang” grenades. These 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” 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).
Then the court gets to the most absurd part of the raid — considering the danger the police were attempting to neutralize by assaulting both Milan and her house.
That no men were found in the house during the raid confirmed the police in their belief that Murray was responsible for the threats. 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 flashbang assault on Mrs. Milan’s home.
On top of that, even when it was evident there was no danger and none of the suspects were present, the SWAT team refused to dial back its aggressive tactics.
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.
Everything about the raid bothers the Seventh Circuit Court. The lack of actual investigative work. The over-the-top tactics. The fact that a unit deploying flashbang grenades couldn’t even be bothered to ensure any more damage than “necessary” wasn’t done.
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.” Estate of Escobedo v. Bender, supra, 600 F.3d at 784–85. 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.
The court notes that reasonable mistakes made by officers do not nullify qualified immunity, even when the mistakes seem less reasonable by the application of hindsight. But there was nothing reasonable about this entire debacle.
We cannot understand the failure of the police, before flash banging the house, to conduct a more extensive investigation of the actual suspects: Murray, living two doors away from the Milan home and thus with ready access to Mrs. Milan’s open network, and the male Milans. 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.
More to the point, the lack of even minimal investigative efforts precludes the department from claiming these “mistakes” were “reasonable.”
[T]o repeat for emphasis, the police acted unreasonably and precipitately in flash banging the house without a minimally responsible investigation of the threats. The open network expanded the number of possible threateners and just one extra day of surveillance, coupled with a brief investigation of Murray and the three male Milans, should have been sufficient to reassure the police that there were no dangerous men lurking in the house.
In other words, had the police officers actually performed any sort of police work, Milan’s house would have been left unmolested/un-flashbanged and she wouldn’t be suing the department for civil rights violations. This lawsuit could have been avoided entirely and the police were obviously capable of taking down a much more dangerous target without extra drama and explosives. But it had a news crew in tow — one it was apparently “repaying” for the tips about the social media threats. And once it had eyes on it, it couldn’t help but deploy its ridiculous “shock and awe” tactics… to take down a 68-year-old grandmother and her “small, frail” daughter.