No Fourth amendment violation for injuries resulting from the excessive force use of a flashbang

 

The issues in Dukes v Deaton were whether a police officer who threw a diversionary device known as a “flashbang” into a dark room occupied by two sleeping individuals without first visually inspecting the room is entitled to qualified immunity against a section 1983 lawsuit claiming excessive force and whether the officer was entitled to qualified immunity against a complaint of assault and battery. Narcotics officers of the Clayton County Sheriff applied for a search warrant of Jason Ward’s apartment based on confidential informant’s information that he sold narcotics out of his apartment. The search warrant application noted that Ward was known to carry a handgun. The application sought a “no-knock” provision because “drug dealers commonly use weapons, dogs, and barricades to hinder law enforcement in the execution of their duties. Prior to execution of the warrant the SWAT team held an operational meeting to discuss the plan of entry. The Defendant and other SWAT members were given flashbang devices to uses. These are classified as explosives that can generate heat in excess of 2,000 degrees centigrade and over 150 decibels of noise for less than one-half second. Because they have the potential to cause serious bodily injury, the officers received official instruction to visually inspect an area first before deploying a flashbang.

The search warrant execution plan did not call for Deaton to deploy his flashbang, however the plan gave all SWAT team member the authority to use more flashbangs if needed. As the SWAT team executed the search warrant at 5:30 a.m., Deaton deployed his flashbang threw the bedroom window where Dukes was sleeping. The explosion caused Dukes to suffer severe burns and she spent three days in the hospital.

Dukes filed a complaint against Deaton and the Commander Branham alleging a violation of Duke’s right to be free from excessive force under the Fourth Amendment and a state law claim for assault and battery against Deaton.

The district court granted motions to dismiss finding the officers were entitle to qualified immunity against the excessive force and against the assault and battery claim and filed this appeal.

The court of appeals agreed and denied liability for this 1983 civil rights lawsuit. To overcome qualified immunity, the court must determine first, whether the facts taken in a light most favorable to the plaintiff show that the officers conduct violated a federal right, and second, whether the right in question was clearly established at the time of the violation.   Here the court found the officer’s deployment of the flashbang was excessive force in violation of the Fourth Amendment under these circumstances where he threw it into the room without inspecting first for bystanders and were there was minimal need for the use of force.

However, Deaton’s use of the flashbang did not in violation of a clearly established statutory of constitutional right that existed at the time of the violation. No precedent of the 11^th circuit or the Supreme Court addressed the constitutionality of flashbangs. Furthermore, the Court found the conduct was not so egregious that any objectively reasonable official facing the circumstance would know that the officer’s conduct violated federal law because to the warrant stated that drug trafficking took place in the apartment, that drug traffickers commonly utilize weapons, dogs, etc. to hinder law enforcement in the execution of their duties, and that Ward carried a firearm.   The operational plan called for Deaton to use it if needed and he could reasonably believe that based on the facts known to the officers on the morning of the search that throwing a flashbang into Ward’s bedroom was not excessive.

The court also denied the assault and battery claim because the facts show that Deaton did not look into the bedroom prior to throwing the flashbang. Therefore, he was not aware that Duke was in the bedroom and there was no evidence that he threw it in her direction knowing she was there to purposely hurt a bystander.