DEA SWAT Raid and Ninth Circuit Ruling

BY Herschel Smith
2 years, 3 months ago

From Reason, via Instapundit:

At 7 a.m. on January 20, 2007, DEA agents battered down the door to Thomas and Rosalie Avina’s mobile home in Seeley, California, in search of suspected drug trafficker Louis Alvarez. Thomas Avina met the agents in his living room and told them they were making a mistake. Shouting “Don’t you fucking move,” the agents forced Thomas Avina to the floor at gunpoint, and handcuffed him and his wife, who had been lying on a couch in the living room. As the officers made their way to the back of the house, where the Avina’s 11-year-old and 14-year-old daughters were sleeping, Rosalie Avina screamed, “Don’t hurt my babies. Don’t hurt my babies.”

The agents entered the 14-year-old girl’s room first, shouting “Get down on the fucking ground.” The girl, who was lying on her bed, rolled onto the floor, where the agents handcuffed her. Next they went to the 11-year-old’s room. The girl was sleeping. Agents woke her up by shouting “Get down on the fucking ground.” The girl’s eyes shot open, but she was, according to her own testimony, “frozen in fear.” So the agents dragged her onto the floor. While one agent handcuffed her, another held a gun to her head.

Moments later the two daughters were carried into the living room and placed next to their parents on the floor while DEA agents ransacked their home. After 30 minutes, the agents removed the children’s handcuffs. After two hours, the agents realized they had the wrong house—the product of a sloppy license plate transcription—and left. 

In 2008, the Avinas—mom, dad, and both daughters—filed a federal suit against the DEA for excessive use of force, assault, and battery in the U.S. District Court for the Southern District of California. That court ruled in favor of the DEA, and the Avinas appealed. Last week, the family got justice.

The Ninth Circuit ruled in favor of the Avinas – at least, somewhat.  But the wording is troubling.  It indicates that the courts, after all of faulty, failed, mistaken and even deadly SWAT raids, still don’t get it.

Viewing the evidence in the light most favorable to the Avinas, a rational trier of fact could find that agents engaged in “extreme or outrageous” conduct when the agents: (1) pointed their guns at the head of eleven-year-old B.S.A. “like they were going to shoot [her]” while B.S.A. was lying on the floor in handcuffs; (2) forced eleven-year-old B.S.A. and fourteen-year-old B.F.A. to lie face down on the floor with their hands cuffed behind their backs; (3) left B.S.A. and B.F.A. in handcuffs for half an hour; and (4) yelled at eleven-year-old B.S.A. and fourteen-year-old B.F.A. to “[g]et down on the f[uck]ing ground.” See Tekle, 511 F.3d at 856 (holding that officers were not entitled to summary judgment on claim for intentional infliction of emotional distress …

There.  That’s all you need to read.  Emotional distress.  That’s it.  No mention or understanding that these officers brandished their weapons at someone, and engaged in muzzle flagging a little girl.  No understanding of the fact that, just as in the case of poor Mr. Eurie Stamps, sympathetic muscle reflexes can lead to inadvertent discharges and kill people.

More people will have to perish at the hands of hot-shot “tacti-cool” SWAT officers discharging their weapons before the public outcry is heard loudly enough to do anything about the militarization of police tactics in America.  The Ninth Circuit, while in the initial stages sympathy with the victims, doesn’t get it.  It’s about the danger of such tactics, not the emotional distress.  At least, one is a primary concern, while the other should be secondary.

Prior: SWAT Raids category



  • Glen Tschirgi

    Two word remedy, Herschel: STRICT. LIABILITY.

    In plain speak, it means, essentially, that if you choose to operate, for instance, an explosives factory, you are going to be held strictly liable for any and every screw up or harm done that results from your activities. No ifs, ands or buts. No defense.

    A more common example is the one in Maryland where the courts recently imposed strict liability on owners of pit bulls. If you choose to own one, you are liable for *anything* that dog does. It is basically a four-legged, panting, drooling lawsuit walking around.

    Same thing for these SWAT-niks: if a city/county chooses to have a SWAT unit then it (and every member of that unit) will be strictly liable for any and every screw up, wrong raid, wounding, murder, emotional distress and other possible harm that might occur. Yes, massive amounts of money may not make the nightmares for those little girls go away, but it will make cities and counties think long and hard about whether to continue with a SWAT program and, if so, when and how to use it. All you have to do is look at how a few big money lawsuits have changed the face of playgrounds all over the U.S. No more swings, no more jungle gyms, etc…

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This article is filed under the category(s) Police,SWAT Raids and was published June 18th, 2012 by Herschel Smith.

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