CA8: SWAT team’s use of a flashbang device to search a house for a cell phone was unreasonable (it was also the wrong house because the suspect hadn’t been there in two years)

It was objectively unreasonable for a SWAT team to break in a door and use a flashbang device to search a house for a cell phone where the suspect was already in custody and they knew it, they were at the wrong house, and the homeowner was trying to unlock the door. The justifications proffered for the use of force to enter were speculative and unsupported by any evidence. Z.J. v. Kansas City Bd. of Police Comm’rs, 2019 U.S. App. LEXIS 22205 (8th Cir. July 25, 2019):

Even aside from the consensus in persuasive case law at the time, the SWAT team officers violated clearly established law because it would be obvious to any reasonable officer that the use of the flash-bang grenade under these circumstances was unreasonable. For a right to be clearly established, it is not required that there be “a case directly on point.” al-Kidd, 563 U.S. at 741. An officer may have fair notice based on the fact his conduct is obviously unlawful, even in the absence of a case addressing the particular violation. See Hope v. Pelzer, 536 U.S. 730, 741 (2002); see also Brosseau, 543 U.S. at 199 (“Of course, in an obvious case, [the Fourth Amendment reasonableness standard articulated at a high level of generality] can ‘clearly establish’ the answer, even without a body of relevant case law.”); Rokusek v. Jansen, 899 F.3d 544, 548 (8th Cir. 2018). The only potential threat of which the SWAT team was aware was Charles, then a suspect in a murder investigation. But they knew Charles was in custody. They had no reason to believe any accomplices were involved in the murder and present in the residence. Nor did they take any precautions to avoid harming innocent bystanders. And the rationale that they were “compromised” is nonsense because it is undisputed they knocked and announced their presence. Only the plainly incompetent officer announces his presence at a house with no known dangerous people and then decides to throw in a flash-bang grenade because the occupants know he is there. Nor does the fact it took longer than normal for the SWAT team to gain entry provide any support for their decision. They could not have reasonably believed that “safety concerns necessitated an expedited entry by using a flash-bang grenade” based on the delay, as the dissent posits, post at 29, because they had no reason to believe anyone inside posed any danger to them and the young woman who answered the door was unarmed and gave no indication she posed any threat. Even though they were investigating a homicide, they knew the sole suspect was already in custody and they had no reason to believe the residence harbored other dangerous individuals. Blindly throwing a flash-bang grenade into the residence under these circumstances was obviously unconstitutional.