There can be no doubt that cable television bears some responsibility for both the growth of the Black Lives Matter movement and the perpetuation of the myth that policing is a dangerous occupation. It is true felonious police deaths in 2014 were greater than in 2013 but 2013 was the lowest year on record.
The reporting of this story on the evening of August 31 was laughable. It was first reported that a cop had been shot while investigating a burglary. That was true. Then it was reported that the homeowner had also been shot which was also true. When it became clear that the cops were black and the homeowner was white cable television seemed to lose interest in the story. The upshot of the story is the cops were investigating a suspected burglary but went to the wrong house. They entered the unlocked back door of a residence where a man and his wife were watching television. When the homeowner entered his kitchen he was shot in the leg. His dog, a female boxer, was also shot and killed. Then, as if to prove his lack of competence, one of the officers dispatched a round into the leg of his fellow officer evidently striking the femoral artery as the officer nearly bled out in the kitchen.
This story coming out of Evansville, Indiana where they city is being sued following a SWAT raid on the home of a 68 year old women and her 18 year old adopted daughter provides an insight into the decision to deploy potentially lethal force against law abiding people. It also confirms the fact that rank does not confer wisdom as Chief of Police Billy Bolin is being sued in his personal capacity meaning that if he does not have good tort insurance he is apt to paying for his mistakes well into his 90's.
In June of 2012, threats against the police department were posted to Topix.com, a seedy bulletin board more conducive to hooking up with a dominatrix than finding political bed fellows.
The following posts were discovered under the heading “EPD leak!!! All officers addresses are being passed around Evansville”:
“Me n my boys need them copys asap.need to pay a few a visit.”
“[Chief] Bolin lives behind parkside”
“Lol at all da cops commenting,f#+k the police.you mfs need to b taught a lesson,always harassing n violating mfs rights. 4th of July a cops house gonna got hit.dont care about your kids or btchs lives.I dnt even care about my own life.I got my reasons…times ticking.?”
“Cops be aware.Note:I am proud of my county,but I hate police of any kind..I have explosives.:) made in America.Evansville will feel my pain.guess who’s in the river.”
Members of the local media tipped the police to the post and were rewarded for their subservience and solicitude by being allowed to accompany the SWAT team on its raid on the home of Edna Milan and her daughter. After an exhaustive investigation that lasted for 2 hours the raid was planned. Keep in mind as you view this video that all of this is over a class D felony ( Intimidation Against Police Officers ) as stated in the search warrant. The warrant called for the seizure of tablets, cell phones, laptops and computers not guns, ammo and bombs. Police had traced the source of the offending post to an IP address at 616 East Powell. Police also were able to detect an unsecured WIFI connection by driving by the house and using a cell to connect to the unsecured port. According to the appellate brief 9 people were associated with that IP.
Helmet cam video of the raid shows how it went down. It was not a "no-knock" warrant, but the "knock" delivered by the SWAT team had very little to do with announcing its presence and everything to do with giving itself permission to smash through the front door and hurl flash bangs into the house.
The 2 ladies having been duly perp walked before the media were released after about 20 minutes. Then evidently Chief Bolin had a WTF epiphany. The day after the raid contractors showed up to repair the door and the broken window and to replace the carpet that was burned by the flash bang grenades. Bolin even wrote Milan a letter of apology. The case was eventually solved and one Derrick Murray who lived 2 doors down the street from the Milans' was arrested. How was this desperado apprehended? Police called his home and asked him to come to headquarters were he was arrested.
Milan filed suit in federal court claiming that the use of flash bang grenades constituted excessive force and violated her rights as guaranteed by the fourth amendment. Chief Bolin claimed immunity citing the doctrine of qualified immunity. After that claim was denied in district court Bolin appealed to the Seventh Circuit Court of Appeals. Judge Diane Wood presided over the panel which included Judges Ann Clare Williams and Richard Posner, who was once considered as a replacement for Sandra Day O'Connor. Do not underestimate the power of the helmet cam video the police were good enough to capture. Although Milan's attorney did not mention it in his brief or oral argument the libertarian leaning Posner is very much disturbed by the video showing an extremely young looking Stephanie Milan being handcuffed.
The case is complicated by the fact that the son of Milan's late husband and her stepson was a cohort of Derrick Murray as was a second man with the last name of Milan ( obviously a relative of her late husband ) who was no relation to Edna Milan.
Federal courts take a less benign view of flash bang grenades than do police actions flicks and cable news commentators. A considerable body of case law has evolved restricting their use. From Judge Posner
"These are explosive devices, similar to but a good deal less lethal than military hand grenades, that are intended to stun and disorient persons, thus rendering them harmless, by emitting blinding flashes of light and deafening sounds. They can kill if they land on a person, especially a child. The police call them “distraction devices,” an absurd euphemism; we called them “bombs”'..
Listen to the audio recording of the oral arguments to hear three judges eat an attorney alive. "that's not an answer it's mechanical recitation" and it goes down hill from there. "These SWAT team guys seem so chicken"
It's surprising that the court does not address the threat assessment mentioned in the oral arguments considering its contradiction to known facts. The form is bureaucratic banality at it worse which one assumes is to provide the police with a numerical value to a perceived threat thus making it sound more credible but it only works if the questions are answered truthfully. Notwithstanding the fact that no man was connected to the house and the police were searching for computer equipment the assessment indicates the presence of fully automatic rifles and explosives.
In the unanimous opinion Judge Posner wrote:
True, we mustn’t base our decision on the wisdom of hindsight. If the police had had reasonable grounds for conducting the search as they did (that is, with flash bangs, yet without any but the most perfunctory, indeed radically incomplete, preliminary investigation), then the doctrine of qualified immunity would shield them from liability even though the flash bangs and ensuing search yielded no benefits for law enforcement. But, to repeat for emphasis, the police acted unreasonably and precipitately in flash banging the house without a minimally responsible investigation of the threats. The open network expanded the number of possible threateners and just one extra day of surveillance, coupled with a brief investigation of Murray and the three male Milans, should have been sufficient to reassure the police that there were no dangerous men lurking in the house.Keystone Kops! Black Lives Matter would do better to focus on stupidity.
Precipitate use of flash bangs to launch a search has troubled us before, leading us to declare that “the use of a flash bang grenade is reasonable only when there is a dangerous suspect and a dangerous entry point for the police, when the police have checked to see if innocent individuals are around before deploying the device, when the police have visually inspected the area where the device will be used and when the police carry a fire extinguisher.The police in this case flunked the test just quoted. True, they’d brought a fire extinguisher with them—but, as if in tribute to Mack Sennett’s Keystone Kops, they left it in their armored SWAT vehicle.
So while the defendants are correct to point out that a reasonable mistake committed by police in the execution of a search is shielded from liability by the doctrine of qualified immunity,
in this case the Evansville police committed too many mistakes to pass the test of reasonablenes.