Police raided the wrong house and got sued. Summary judgment is denied. The supervising officer and others there knew within one minute they had the wrong house, but they continued and kept plaintiff handcuffed. And nobody in the raiding party even admitted to handcuffing her. B.B. v. Hancock, 2021 U.S. Dist. LEXIS 139394 (W.D.Tex. June 11, 2021). On alleged failure to knock-and-announce:
Upon the summary judgment record, the Court cannot conclude as a matter of law that the entry into the Basco’s home was reasonable. Fact issues abound as to whether it was reasonable for law enforcement to believe that knocking and announcing their presence was dangerous, would be futile, or would inhibit effective investigation of the suspected crime. Thus, whether the method employed to enter Plaintiffs’ home was reasonable is a question for a jury that precludes summary judgment.
On search of the wrong house:
The Supreme Court has “held that police officers do not necessarily violate the Fourth Amendment when they mistakenly execute a search warrant on the wrong address.” Simmons v. City of Paris, Tex., 378 F.3d 476, 479 (5th Cir. 2004) (citing Maryland v. Garrison, 480 U.S. 79, 80, 107 S. Ct. 1013, 94 L. Ed. 2d 72 (1987)). However, search of the premises must stop immediately upon realizing they have entered the wrong address. Id. at 479-80.
Here they didn’t and that precludes summary judgment.
It would be ridiculous to expect a plaintiff whose home has been raided to be jotting down names and asking everyone what they did. That is why plaintiffs are allowed to name Doe defendants and who-did-what is sorted out in discovery. Here, Plaintiffs have been met with a wall of silence. Even though the testimony is inconsistent on many points, when asked who handcuffed Mrs. Basco [TEXT REDACTED BY THE COURT]
The summary judgement evidence shows that Rodriguez, Smith, and Hancock planned and orchestrated the raid. Each of these men were present and knew they were at the wrong house, yet none of them directed the men in the stack to cease operations and exit the home, [TEXT REDACTED BY THE COURT] none of them removed or directed the removal of Mis. Basco’s handcuffs upon realizing they were at the wrong house.
To establish liability under 42 U.S.C. 1983, a plaintiff must demonstrate the personal involvement of the defendant in the constitutional violation. “Personal involvement of supervising personnel generally includes giving a ‘command, signal, or any other form of direction to the officers that prompted’ the constitutional violation.” Turner v. Driver, 848 F.3d 678, 696 (5th Cir. 2017). On the evidence presented, a reasonable jury could find that Rodriguez, Smith, and Hancock were each personally involved in the alleged Fourth Amendment violations because they participated in, facilitated, approved, condoned, or turned a blind eye to the conduct “for fear of what they might see.” Id. at 696 n.88 (citations omitted).
The reasonableness of officer conduct is a fact-based inquiry that requires a careful balancing of the “nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake.” Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989) (quoting Tennessee v. Garner, 471 U.S. 1, 8, 105 S. Ct. 1694, 85 L. Ed. 2d 1 (1985) (internal quotations omitted)). The Court recognizes that the actions of law enforcement are not to be judged with the benefit of 20/20 hindsight. Id. at 396-97. And that a court cannot determine whether an officer’s conduct was reasonable “without settling on a coherent view of what happened in the first place.” Lampkin v. City of Nacogdoches, 7 F.3d 430, 435 (5th Cir. 1993). Having considered the evidence, and viewing all facts and reasonable inferences drawn therefrom in the light most favorable to Plaintiffs, the Court concludes that the summary judgment record raises triable issues of fact for a jury. Because the evidence shows Rodriguez, Smith, and Hancock’s personal involvement in each of the alleged Fourth Amendment violations, Plaintiffs claims will proceed against these Defendants.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)