SWAT team’s violation of basic elements of no-knock of 1997’s Richards get no qualified immunity in the firefight that followed their unreasonable entry. Fact questions remain for excessive force as well. Geiger v. Sloan, 2019 U.S. App. LEXIS 23849 (5th Cir. Aug 8, 2019). As to no-knock:
The plaintiffs successfully alleged a no-knock violation. The Supreme Court established the standard for no-knock entries in its 1997 decision Richards. The officers “must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence.” And drug investigations don’t automatically meet this requirement. Rather, the court must consider the actual circumstances of each particular case. Because controlling authority dictates that officers must have reasonable suspicion, the alleged violation is clearly established.
Moving to the supposed violation, there are three reasons why it isn’t clear that Deputy Sloan had reasonable suspicion; and thus why plaintiffs have alleged a constitutional violation.
First, the warrant doesn’t reveal a reasonable suspicion. There is only one reference in the warrant to “no knock”—a mention that the officer who prepared the affidavit “requests a no-knock search due to officer safety and the protection of further evidence.” But the warrant does not go so far as to say that it grants a no-knock entry; nor does it or the accompanying affidavit explain how the officers announcing their presence would create any danger, futility, or risk of inhibiting the investigation.
Second, the plaintiffs allege that knocking would not have been problematic for the officers. Although Sloan in his deposition said that the informant told his colleague that Keeton had guns, that issue is not properly before us. The district court found it to be undisputed that no one ever questioned the informant about weapons. And thus, under Supreme Court caselaw, we must accept that finding for this interlocutory appeal.
Even if we did have jurisdiction to review this finding, it would not matter. There does appear to be sufficient evidence to create a genuine dispute on this issue. Sloan says that the informant told one officer, who in turn told another officer, who then told Sloan that Keeton had weapons. But in his deposition, the informant said that no one ever asked him about weapons. Nor was this weapon information included in the affidavit or warrant. The plaintiffs also allege that the back-door cameras were disabled. And the plaintiffs allege that officers cut off the sewage line before conducting the raid, mitigating the possibility for evidence destruction. Besides, Sloan in his deposition explained that it was customary for his office to conduct night-time, no-knock raids for drug busts. Thus there are genuine disputes of material fact which bear on whether conducting a no-knock raid violated Keeton’s rights. This is not to say that Sloan will not prevail at trial. Instead, the plaintiffs have merely alleged a violation. They still have the burden of refuting the officers’ story. In this appeal, the genuineness of factual disputes is not within our jurisdiction.
Finally, a court that actually looks at the facts for justification of the no-knock …