Archives for posts with tag: swat

This is a case of a police raid. Summary judgment is granted on some counts but other counts survive. The police SWAT team is described as ninja-clad and using flash bombs.

FELICIA MARTINEZ, et al., Plaintiffs,
v.
TRACEY McCORD, et al., Defendants.

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA, SOUTHERN DIVISION
Case No. 1:06-cv-636-WKW [wo]
2008 U.S. Dist. LEXIS 37881

Opinion by: US District Court Judge W. Keith Watkins, decided May 8, 2008:

This case arises out of searches of two mobile homes for methamphetamine, currency, and drug paraphernalia under a Houston County, Alabama search warrant dated January 17, 2006. (Doc. # 84-3.) One of the mobile homes was occupied by Plaintiffs Felicia Martinez (“Martinez”) and her two minor children.

Juvenal is the estranged husband of Martinez.

Methamphetamine, currency, drug paraphernalia, and a handgun were seized at 81 Pitts Drive, and Juvenal Martinez was arrested.

But at the other address:

Martinez and her minor children, ages five and seven, were watching television at 7:00 p.m. when the Daleville Police Tactical Team, also known as the Special Weapons and Tactics (“SWAT”) Team, made an explosive entry into her home, located at 43 Pitts Drive, and secured the premises for the drug task force to conduct the search. (Martinez Decl. P 1; McCord Decl. at 3.) During the initial entry to the home, a “flash-bomb” or other explosive device was thrown through the window, exploding in front of one of the children watching television. (Martinez Decl. P 2.) Officers with masks, assault garb, and drawn weapons entered the mobile home by breaking down a door. (Id. P 4.) Weapons were pointed at Martinez and her minor children, and they were required to lie on the floor face-down and were not permitted to move. (Id. P 5.) Other officers, also unidentified, made a coordinated and simultaneous entry into the other mobile home located nearby [footnotes omitted]

The case here is particularly about the liability for Officers’ McCord [the commander of the Houston County narcotics unit] and Williamson;

At the time of entry into Martinez’s home, McCord was on duty watching the perimeter of the entry at 81 Pitts Drive. (Id.) At that same time, Williamson was waiting in a vehicle down the road. (Williamson Aff. P 9.) After the premises of the mobile homes were secured, Williamson entered the plaintiffs’ residence and searched the kitchen, bedroom, and the laundry room for items pursuant to the warrant, (Williamson Aff. PP 10-12), and McCord entered the residence at 81 Pitts Drive where he spent over two hours searching for evidence and interviewing the individuals found inside. (McCord Decl. at 4-5.) Methamphetamine, currency, drug paraphernalia, and a handgun were seized at 81 Pitts Drive, and Juvenal Martinez was arrested.

McCord then walked the short distance to 43 Pitts Drive. (McCord Decl. at 5.) Although McCord describes his entry of the plaintiffs’ home as merely a “quick walk through” that lasted five to ten minutes, (McCord Decl. at 5), Martinez alleges that McCord and other officers involved in the search “look[ed] in every drawer in every room of her house,” “tore the front off [her] VCR,” and “caused damage to [her] car during the search.” (Martinez Decl. P 7.) Martinez also claims McCord told her that she was going to jail. (Id. P 18.) The actions of McCord and other officers “extremely distressed” Martinez and caused her to worry “that there was something in the explosive device that caused [her children] to sleep.” (Id.)

On July 18, 2006, the plaintiffs filed this action against multiple defendants, some of whom have already been dismissed as parties. In their most recent complaint, the plaintiffs allege eleven counts against McCord and Williamson for unlawful entry, unlawful search and seizure, excessive force under 42 U.S.C. § 1983, conspiracy to violate her civil rights under 42 U.S.C. § 1985, failure to prevent the violation of her civil rights under 42 U.S.C. § 1986, and six state tort claims. [footnotes omitted]

The Court decides,

due to the lack of discovery, Rule 56(f) prevents the court from reaching a judgment on the motion for summary judgment at this time with respect to Williamson for three of the tort claims.

But,

Despite Rule 56(f), there are two tort claims against Williamson that fail as a matter of law, and further discovery on these claims would be pointless. Count Seven alleges the tort of assault and battery. (Third Am. Compl. PP 95-98.) The complaint states that “the defendants touched Ms. Martinez in rudeness, in anger, or in a hostile manner, by touching her person and pointing a firearm at her head.” (Id. P 95.) Despite lumping all defendants into this claim, earlier in the complaint the plaintiffs admit that Williamson was not part of the initial, violent entry of their home during which time the alleged assault occurred and firearms were drawn. (Id. PP 20-21.) The complaint states that “[f]ollowing the assault on Plaintiffs’ (sic) and their home, the Ninja-clad officers left, to be replaced by . . . Williamson and other, presently unknown, officers.” (Id.) It is clear the assault and battery claim is directed at the officers who initially entered the plaintiffs’ home and not the officers who subsequently searched the home. Because the plaintiffs acknowledge Williamson was not one of the initial officers, and they do not allege that he ever touched the plaintiffs, the assault and battery claim against him fails.

Count Nine asserts a claim for intentional infliction of emotional distress (i.e., outrage) against Williamson. However, in Alabama, the tort of outrage is only recognized in three areas: “(1) wrongful conduct within the context of family burials; (2) an insurance agent’s coercing an insured into settling an insurance claim; and (3) egregious sexual harassment.” Stabler v. City of Mobile, 844 So. 2d 555, 560 (Ala. 2002). None of these situations is remotely applicable to the situation at hand, and thus the plaintiffs have not alleged a viable claim of outrage. Therefore, Williamson’s summary judgment motion is due to be granted as to both Count Seven (assault and battery) and Count Nine (outrage).

Those dismisses, other claims survived, including alleged “violations of various constitutional rights under 42 U.S.C. § 1983: unlawful entry in violation of the Fourth and Fourteenth Amendments, unlawful search and seizure in violation of the Fourth and Fourteenth Amendments, and excessive force in violation of the Fourth Amendment.” To be decided another day (presumably by settlement negotiations).

Advertisements

This case involved multiple search warrants executed simultaneously, particularly a no-knock entry with alleged excessive force. This is another case of law enforcement being described as ninja because of their SWAT clothing.

DUANE TOLLIVER, et al., PLAINTIFFS
vs.
BAXTER COUNTY, ARKANSAS, et al., DEFENDANTS

CASE NO. 05-3036
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF ARKANSAS, HARRISON DIVISION
2006 U.S. Dist. LEXIS 52976

Filed July 18, 2006, Opinion by US District Judge Jimm Larry Hendren,

Plaintiffs allege that defendants violated their Fourth and Fourteenth Amendment rights in various ways in connection with the execution of a search warrant on the business and residence of plaintiffs Duane and Donna Tolliver.

Continuing,

Plaintiff Archer was sitting at a desk in the garage of Alternators Plus when the warrant was executed. According to Archer, a law enforcement officer dressed in a “ninja suit” entered the business, pointed a gun at him and screamed for him to get on the floor. Archer later identified this officer as Deputy Grayham. According to Archer, four or five officers pulled him to the floor and one of the officers handcuffed him. After about 15 or 20 minutes, officers set Archer up in a chair but his handcuffs were not removed until approximately 15 to 30 minutes later.

And,

Officers found no contraband at the Tollivers’ business or residence and no charges were filed against any of the named plaintiffs, with the exception of Mungle.

Also,

Four other search warrants were executed simultaneously with the one at issue. Mike Tolliver, Plaintiff Duane Tolliver’s brother, was arrested, charged, and ultimately convicted of methamphetamine manufacturing as a result of items seized during the execution of these warrants.

The Court found that the no-knock entry and uses of forces were not excessive under the circumstances. Therefore,

plaintiffs’ claims should be DISMISSED, with prejudice, in their entirety and the Court will so order