Explosive Dynamic Entry - Professor Wilkes - University of Georgia School of Law

EXPLOSIVE DYNAMIC ENTRY

Published in slightly abridged form in Flagpole Magazine, p. 8 (July 30, 2003). There is a caselaw update at the end of the article. For additional information on the dangers posed by the militarization of the police, see Radley Balko, Overkill: The Rise of Paramilitary Police Raids in America (2006); Peter B. Kraska (ed.), Militarizing the American Criminal Justice System: The Changing Roles of the Armed Forces and the Police (2001); Tony Jefferson, The Case Against Paramilitary Policing (1990); Koplow, Tangled Up in Khaki and Blue: Lethal and Non-Lethal Weapons in Recent Confrontations, 36 Geo. J. Int’l L. 703 (2005). See also Wilkes, SWATstika Policing, Flagpole Magazine, p. 7 (September 6, 2006).

Author: Donald E. Wilkes, Jr., Professor of Law, University of Georgia School of Law.

“If this were happening in any other country in the world, this incredible militarization of the police, the incredible expansion of police power, the increase in police weaponry, the decrease in defendants’ rights, the incredible stockpiling of bodies behind prison walls, we’d be screaming.”–Fletcher, “I Shall Hear You No Further,” 27 Vt. L. Rev. 565, 582 n. 52 (quoting Van Jones, director of the Ella Baker Center for Human Rights).

At 6 a.m., on Friday, May 16, 2003, 57-year old Alberta Spruill was in her residence, Apartment 6F at 310 W. 143rd Street in the Harlem section of New York City, preparing to leave for work. Spruill, a quiet, church-going lady, was a municipal worker, employed at the Division of Citywide Administrative Services. She had been a city employee for 29 years, and each weekday would take the bus to her job. To her, that Friday morning must have seemed like the beginning of just another ordinary day. She mercifully did not know that she would never again head for work, that she had in fact but two hours to live because she was soon to be killed by the police even though she was an innocent citizen.

Ten minutes later a dozen heavily armed police–six officers from the Emergency Service Unit and six regular patrol officers–burst unannounced into her residence. They had a search warrant issued solely on the basis of erroneous information supplied by an unreliable anonymous informer who falsely claimed that illegal guns and drugs were stored at Spruill’s residence, that he had seen armed individuals there on three occasions, and that there were dogs inside. First the officers suddenly broke down the front door with a battering ram. Then they heaved a stun grenade into the apartment where it exploded with a blinding white flash, a deafening bang, and a thunderous concussion. Then they stormed in and handcuffed Spruill, placing her face down on the floor. She was coughing and screaming. Spruill, who suffered from high blood pressure, then began having difficulty breathing. An ambulance for Spruill was dispatched at 6:32 a.m. When Spruill arrived at Harlem Hospital at 8 a.m. she was pronounced dead. She had suffered a fatal heart attack.

The medical examiner performed an autopsy and announced that Spruill suffered “sudden death following a police raid” as a result of shock and fear caused by the stun grenade explosion and the stress of being handcuffed.   The medical examiner also officially classified Spruill’s death a homicide–a death caused by another person’s actions. “She really was scared to death,” The New York Daily News wrote the day after the medical examiner’s announcement.

Alberta Spruill’s tragic death ten weeks ago is a dramatic example of the evil consequences that result from an extremely ominous development in American policing–the increasing militarization of this country’s police. Militarizing the police “can lead to dangerous ... consequences–such as unnecessary shootings and killings,” Diane Cecilia Weber, a criminal justice expert authority, observed four years ago. The killing of Spruill is powerful confirmation of Ms. Weber’s observation.

“Militarization,” writes sociologist Timothy J. Dunn in his 1996 book on the militarizing of American law enforcement agencies, The Militarization of the U.S.-Mexico Border, 1978-1992: Low-Intensity Conflict Doctrine Comes Home, “refers to the use of military rhetoric and ideology, as well as military tactics, strategy, technology, equipment, and forces.” The leading scholarly paper on the militarization of American law enforcement is Diane Cecilia Weber’s Warrior Cops: The Ominous Growth of Paramilitarism in American Police Departments (1999); see also Weber, Time to Demilitarize Law Enforcement, Fulton County Daily Report, p. 8 (Oct. 21, 1999), and Weber, Police Develop “Military Mindset,” Baltimore Sun (Sept. 12, 1999). The two most alarming side effects of this militarization of the police, we learn from Ms. Weber’s important 1999 paper, are: (1) “state and local police officers are increasingly emulating the war-fighting tactics of soldiers,” and (2) “a culture of paramilitarism ... currently pervades many ... police departments.”

Ms. Weber gives numerous examples of how “state and local police departments are increasingly accepting the military as the model for their behavior,” and “increasingly emulating the tactics of the armed forces in their everyday activities.” Police are now using more and more military equipment. “Between 1995 and 1997 the Department of Defense gave police departments 1.2 million pieces of military hardware,” including armored personnel carriers, grenade launchers, submachine guns, and explosive devices. SWAT teams resembling the military’s special forces have proliferated, organized like military units with “a commander, a tactical team leader, a scout, a rear guard, a sniper, a spotter, a gas man, and paramedics.” (Recently some SWAT teams have been given more euphemistic designations, e.g., Emergency Response Team, Special Response Team, Special Emergency Response Team, Tactical Response Team, Emergency Services Unit, and Strategic Operations Group.) “[A]bout half of SWAT members get their training from active-duty military personnel, some of them from the Navy SEALS or Army Rangers.” Equipped with military-style weapons such as submachine guns with laser sights and sound suppressors, members of police SWAT teams dress in such a way that they are difficult to distinguish from combat soldiers. SWAT police wear black or dark battle dress uniforms, or military or camouflage fatigues; they have metal or Kevlar helmets; they wear masks or hoods; they have protective goggles over their eyes; they wear full body armor; Nomex gloves cover their hands; they often carry a bunker (a large bullet-proof shield with a small window through which the officer looks); and they are shod in laced combat boots. Originally designed to deal with hijackings, hostage-takings, and other emergency situations, SWAT teams are increasingly involved in routine policing duties; “today,” according to Ms. Weber, “these special forces are deployed three-quarters of the time in ‘warrant work,’” i.e., executing arrest and search warrants, usually in drug cases. “The SWAT modus operandi–the quick, violent, military-style confrontation– ... has become normalized in police departments” across America. This explains why three criminologists (Victor E. Kappeler, Richard D. Sluder, and Geoffrey P. Alpert), in their authoritative treatise on American police lawlessness, Forces of Deviance: Understanding the Dark Side of Policing (1998), caustically comment that for American police today “[t]he training orientation often resembles preparation for being dropped behind enemy lines on a combat mission.”

“[T]he last several decades,” journalist Tom Baxter notes in his article Waco Raises Concern About “Warrior” Police, The Atlanta Constitution, p. A13 (Sept. 14, 1999), “[have] brought not only military equipment but a military mindset into the realm of domestic law enforcement.” Ms. Weber’s treatise provides numerous examples of how police militarization has “spawned a culture of paramilitarism in American law enforcement,” and has resulted in too many “state and local police officers adopting the ... mindset of their military mentors.” When law enforcement officials develop a “military mindset,” when they begin to view themselves as “warrior police,” individual rights are seriously jeopardized. It means “an organizational culture that [leads police] to escalate situations upward rather than de-escalating.” As Ms. Weber explains: “The problem is that the mindset of the soldier is not appropriate for the civilian police officer. Police officers confront not an ‘enemy’ but individuals who are protected by the Bill of Rights.... The job of a police officer is to keep the peace, but not by just any means. Police officers are expected to apprehend suspected lawbreakers while adhering to constitutional protections. They are expected to use minimum force and to deliver suspects to a court of law. The soldier, on the other hand, is an instrument of war. If [police] have a mindset that the goal is to take out a citizen, it will happen... Blending military and civilian law enforcement is dangerous because the mindset of the police officer is not–and should not be–that of a warrior. The job of the police is to apprehend a suspect–nearly always a fellow American citizen–while adhering to constitutional procedures....    A soldier, however, is an instrument of war, and war is the use of unrestrained force against an enemy ... often by inflicting maximum damage.... [A] soldier with a machine gun doesn’t worry about Miranda rights.”

The changes in actual police practices resulting from militarization are observable in almost every aspect of police work, but it is probably in regard to search and seizure practices that these changes are most strikingly obvious. A good example involves the methods used to effect entry into residences to execute search warrants. Over the course of the last three decades such entries more and more have come to resemble military commando operations. It is now a standard practice throughout this land for SWAT teams or other large squads of heavily armed police serving search or arrest warrants to smash front doors with battering rams and rush in with guns drawn, barking out orders and forcing everyone inside to “prone out” and submit to handcuffing in the back–all without first giving the occupants notice of the police presence or an opportunity to open the door. The police-created euphemism for this increasingly common form of no-knock entry into residences is “dynamic entry.” Furthermore, over the last two decades the militarized police units carrying out dynamic entries have increasingly resorted to the use of explosive devices when making such entries. It is now a not uncommon practice for police effecting no-knock entry to detonate stun grenades in residences after they have broken open a door or window but prior to their actually entering the premises. This, of course, is exactly what happened in Alberta Spruill’s case. She was a victim of what might be called explosive dynamic entry.

Stun grenades were introduced into the arsenal of American police agencies, and deployed for the first time, by Los Angeles, California police in 1982. Although there can be no doubt that the police tactic of using stun grenades to serve warrants on residences has been steadily increasing, or that the grenades are now used for this purpose by police throughout the United States, it is difficult to obtain reliable statistical information on the matter. (This is unsurprising. Although the government collects and disseminates gigabytes of crime statistics on crimes or acts of violence committed by citizens against other citizens, or by citizens against police, there are hardly any official statistics on crimes or acts of violence committed against citizens by police. Crime statistics do not, for example, tell us how many people are shot or clubbed or maced by police, or suffer injuries while being arrested or while in police custody, or are subjected to a chokehold or fingerhold, or bitten by a police dog.) A 1987 California Supreme Court decision discloses that in 1985 the Los Angeles police deployed stun grenades on 25 occasions, and following Alberta Spruill’s killing New York City police announced that while executing search warrants in the late 1990’s the Emergency Service Unit used stun grenades 50 to 75 times a year, 66 times in 2000, 129 times in 2001, and 152 times in 2002. Between Jan. 1 and May 16, 2003 it used stun grenades to serve warrants 85 times. It seems indisputable that during the past 20 years police have effected hundreds, perhaps even thousands, of explosive dynamic entries all over the country and that during the past five years there have been more such entries than in all previous years.

A stun grenade, unlike the traditional grenade, the purpose of which is to kill or wound, is designed to stun, distract and frighten by producing a temporarily blinding light and a temporarily deafening concussion, but without the propulsion or dispersion of shrapnel. A stun grenade produces a sensory overload with a loud bang and a brilliant flash which disorients and confuses persons nearby. It also produces smoke. Stun grenades carry a warning label that misuse can cause physical injury or death.

To downplay the sinister police-state implications of their growing use of these explosive devices, police refuse to call them stun grenades, preferring to use euphemisms such as “flash bangs,” “distractionary devices,” “diversionary devices,” “cylindrical pyrotechnical devices,” or even “a type of firecracker.” In 2000, however, a federal court of appeals, vigorously expressed its disdain for both these linguistic affectations and the increasing police use of stun grenades, remarking that “police cannot automatically throw bombs into the drug dealers’ houses, even if the bomb goes by the euphemism ‘flash bang device.’” United States v. Jones, 214 F. 3d 836, 837 (7th Cir. 2000).

Stun grenades are regarded as nonlethal weapons, but they are inherently dangerous and can, as the killing of Alberta Spruill proves, cause death. “The term ‘nonlethal’ refers to the goal which is to avoid fatalities,” Lt. Col. James C. Duncan writes in his article on nonlethal weapons, published in the Naval Law Review in 1998. “The public should be aware that the use of a nonlethal weapon always raises the possibility of serious injury, death, or destruction of property.” Duncan, A Primer on the Employment of Non-Lethal Weapons, 45 Naval Law Review 1, 5 (1998).

Alberta Spruill was not the first but, at a minimum, the fourth person slain by American police using stun grenades to execute a search warrant. On Dec. 13, 1984, Los Angeles police killed a woman who died of injuries resulting from the explosion of several stun grenades thrown into the room of her residence where she was watching television, and on Jan. 25, 1989 an elderly couple in Minneapolis, Minnesota died in bed of smoke inhalation after police threw a stun grenade through a window in their residence, starting a fire.

From 1987 through May 2003 there have been at least 28 reported appellate court decisions–15 in the federal courts, 13 in the state courts–involving police detonation of one or more stun grenades to serve a warrant in 19 states and the District of Columbia. In all but one of these cases the stun grenades were deployed by state or local police rather than federal agents. All the cases involved search warrants for drugs, or for drugs and firearms. In five of the 28 cases the explosion inflicted a nonfatal physical injury on one of the occupants, and in four other cases it caused property damage. In six of the 28 cases more than one stun grenade was detonated. The time of the explosive dynamic entry is given in 14 of the 28 cases. In only four of these cases did the entry occur between 8:30 a.m. and 8:30 p.m. In 10 of the 14 cases the entry occurred either late at night or very early in the morning. In six cases the entry occurred between 10 p.m. and 3:25 a.m., and in the remaining four cases the entry was between 6:09 a.m. and 7 a.m.

The factual scenarios of these cases show how rashly and recklessly police sometimes act in using stun grenades for purposes of dynamic entry. They throw exploding stun grenades through doorways and windows into living rooms, bedrooms, kitchens, and basements. They throw exploding stun grenades into rooms without first checking to see who is in the room or who is present in the residence. They throw exploding stun grenades into rooms or residences where they know or should know innocent women, children, and babies are present. They throw stun grenades which explode on or near people and inflict physical injuries. They throw exploding stun grenades into bedrooms where small children are present. They throw exploding stun grenades which land in baby strollers from which a baby had been removed a few minutes earlier. They throw exploding stun grenades which burn furniture, rugs, and floors, and which start fires.

The 28 appellate decisions indicate that, while courts sometimes do express concern about police use of exploding devices to serve warrants, legal attacks on the validity of explosive dynamic entry raids are likely to be unsuccessful. Twenty of the cases involved appeals from criminal convictions, and only in one instance did the court reverse a conviction on grounds the dynamic entry violated the Fourth Amendment.   Seven of the 28 cases involved civil actions for damages in behalf of persons subjected to an explosive dynamic entry; in not a single instance did the appellate court uphold or enter a monetary judgment in favor of a plaintiff. Such is the moribund condition of judicial protection of Fourth Amendment rights in an era of law and order judges, public apathy about constitutional criminal procedure protections, martial rhetoric about the war on crime and drugs, and police agencies imbued with a military mentality and equipped with military accouterments and appurtenances.

It is not the purpose of this article to argue that police should never at any time use stun grenades. There may be exceptional, extraordinary circumstances involving terrorists, hostage-taking, barricaded suspects, or violent mentally deranged people where deployment of stun grenades is appropriate. The threat to liberty lies not in the infrequent use of these weapons on certain special occasions, but in the growing likelihood that use of these explosive devices may be routinized and become a standard and permanent aspect of normal police practices such as the serving of warrants. Explosive dynamic entry, a Gestapo-like tactic, must not and cannot be allowed to become, in the words of Diane Cecilia Weber, “a part of everyday law enforcement in a free society.” Otherwise there will be more Alberta Spruills.

“Democracy,” Winston Churchill once wrote, “means that if the door bell rings in the early hours, it is likely to be the milkman.” America, however, appears to be moving into a warrior police regime where there is no ring of the door bell, and it is not the milkman who is at the door early in the morning; it is a squad of bomb-tossing policemen who look, act and think like military commandos, who are about to burst into the home with no prior warning, and whose motto has become: “To Serve and Protect. Bombs Away!”

The Appendix to this article is set forth below. Based on information contained in court decisions and news media reports, the Appendix lists and summarizes 40 incidents since 1984 in which police have deployed stun grenades to serve warrants.

APPENDIX

The following is a list in chronological order of 40 incidents in which police have deployed a stun grenade in executing or attempting to execute a search or arrest warrant, together with a brief summary of the facts of each incident. It is based upon a lengthy but by no means exhaustive examination of appellate court decisions and news media reports. It is unquestionable that there have been hundreds (perhaps thousands) more incidents involving police detonation of stun grenades while serving warrants. When the facts on an incident are set forth in an appellate court decision, the citation to the decision is given.

Dec. 13, 1984   A Los Angeles, California police SWAT team executes a search warrant at the residence of Lessie Haynesworth, who is watching television when the officers throw several stun grenades into the room where she is sitting. They explode. One of them explodes between her back and a wall. Haynesworth suffers multiple injuries (several fractured bones, tears to her left lung, and burns and abrasions on her back), and dies as a result.

Feb. 6, 1985   In front of television station cameras but without any notice to the residence’s occupants, a Los Angeles police SWAT team executes a search warrant at a residence that is supposedly a crack house. Entry is effected by driving a “motorized battering ram” (an armored personnel carrier equipped with 14-foot horizontal steel pole capped with a rectangular steel plate) through the exterior wall of the residence and simultaneously detonating stun grenades in the room as police enter in force. As it turns out, the residence is occupied by two unarmed women and their three children; police recover no weapons, only trace amounts of cocaine along with alleged drug paraphernalia. See Langford v. Superior Court, 43 Cal. 2d 21, 729 P. 2d 822, 233 Cal. Rptr. 387 (1987).

Mar. 27, 1987   A Jefferson County, Colorado police SWAT team executes a search warrant at the residence of Alger Garcia and his mother at 1:30 a.m. The officers toss a stun grenade into the residence, where it explodes, awakening the persons asleep in the residence. During the execution of the warrant the officers shoot and kill two chained dogs and also fire in excess of 200 rounds of ammunition into the residence. See Garcia v. Johnson, 1995 WL 492879 (10th Cir. 1995).

1988   At 10:30 p.m. on an unspecified date this year, Denver, Colorado police SWAT officers execute a search warrant at the residence of George Anthony Stewart. The officers use a battering ram to break down the front door of the residence and (after the officers step back) immediately throw a stun grenade into the living room, where it explodes. There are three residents in the living room at the time, two of them criminal suspects, and the third a woman who has no connection with criminal activity. One of the suspects is slightly injured by the explosion. Prior to the entry no effort is made by police to determine who is in the house. The facts offered by the police in support of their method of entry all consist entirely of generalities that bear no relation to the particular premises searched or the particular circumstances surrounding the search. See United States v. Stewart, 867 F. 2d 581 (10th Cir. 1989).

Jan. 25, 1989   At 10 p.m. Minneapolis, Minnesota police execute a search warrant at the residence of 71-year old Lloyd Smalley and his companion of 30 years, 65-year old Lillian Weiss, who are in bed. Officers use a battering ram to smash open the front living room window of the residence and then throw a stun grenade through the window. A chair in the middle of the room bursts into flames, and the fire spreads. Soon the residence is engulfed in flames and smoke. Smalley and Weiss, who are still in bed, die of suffocation from smoke inhalation. Smalley and Weiss are innocent of any crime.

Feb. 15, 1989   A police SWAT team in Orlando, Florida executing a search warrant breaks into a residence at an unspecified address and explodes a stun grenade. The terrified owner of the house shoots and kills one of the SWAT officers. Tried later on second degree murder charges arising out of the death of the officer, the homeowner tells the jury he “had never been as frightened as the night he heard a crash at his front door followed by a loud explosion, a window breaking, and his wife screaming.” The jury acquits him.

Mar. 1989   On an unspecified day this month, a Gardena, California police officer shoots and kills an unarmed man during the nighttime execution of a search warrant. It is unclear whether the officer was startled and accidently fired his weapon when a stun grenade was exploded by another officer, or whether he fired intentionally in self defense at an armed man but unintentionally hit the unarmed man. See Harris v. Grimes, 104 Cal. App. 4th 10, 127 Cal. Rptr. 2d 791 (2002).

Jan. 10, 1990   Dallas, Texas police execute a search warrant at the residence of Juan Garcia by making a forcible entry after hurling a stun grenade through a window. Inside the residence are a man and his pregnant common law wife and the 2-year old child and 9-month old baby they are babysitting. The stun grenade lands and explodes in an empty baby stroller just three feet from the man. The baby had been removed from the stroller only minutes earlier. The explosion breaks all the plates in the china cabinet, pulls the sheet-rock one and a half inches out of the ceiling, and burns a hole in the sofa and the carpet.   The detonation burns and shatters the stroller. The pregnant woman soon begins bleeding, and four days later miscarries. See Garcia v. State, 829 S. W. 2d 830 (Tex. Ct. App. 1992).

Feb. 18, 1991   At 11:40 p.m. Topeka, Kansas police, in order to effect entry to execute a search warrant at the residence of James C. Jenkins, Jr., throw a stun grenade through the second story entrance, and the grenade explodes. Another officer rams open the second story entrance, allowing the search team to enter. The grenade explosion leaves a burn mark on the floor. Inside the residence are a man, his wife, and their two daughters. See Jenkins v. Wood, 81 F. 3d 988 (10th Cir. 1996).

Nov. 2, 1991   Dallas, Texas police execute a search warrant at the residence of Robert Odell Harris. Officers force open the front door and one of the officers throws a stun grenade inside the residence. The grenade bounces off a table and into the lap of an occupant, injuring him when it explodes. See Harris v. State, 1993 WL 321501 (Tex. Ct. App. 1993).

Mar. 28, 1992   A police SWAT team in Snohomish County, Washington executes a 5 a.m. raid on a residence for the purpose of executing arrest warrants for persons believed to be responsible for a 1991 murder and robbery. The residence belongs to a young married couple, Larry and Robin Pratt. The officers effect entry into the residence by throwing a battering ram into the rear sliding glass door of the residence, shattering glass in the living room onto Robin Pratt’s 6-year old daughter and 5-year old niece. The 28-year old Robin, who is in her bedroom, is awakened by the sound of breaking glass; then a stun grenade explodes near her head, singeing her hair. Robin, in a panic, rushes in the dark toward the living room to protect the children, but then encounters a SWAT officer who shoots her with his submachine gun. She is handcuffed and bleeds to death on the floor in front of her daughter and niece. Her last words: “Please don’t hurt my children.” It later turns out that none of the subjects of the raid had anything to do with the murder and robbery.

July 21, 1992   Des Moines, Iowa members of police narcotics and tactical units execute a search warrant at an alleged crack house, the residence of Dwight Erwin Baker. Without knocking or announcing the raid, the police lob one stun grenade through the kitchen window and roll another through the front door. After the grenades explode, police storm inside and “secure” the persons and dogs on the premises. See United States v. Baker, 16 F. 3d 854 (8th Cir. 1994).

Feb. 28, 1993   In the most notorious police deployment of stun grenades in the history of the American criminal justice system, 76 federal agents, trained in military assault tactics by Green Berets at Ft. Hood, Texas, carrying out a commando-style raid, assault the Branch Davidian compound in Waco, Texas, firing machine guns and throwing stun grenades to execute search and arrest warrants. As a result of the firefight that results from this attempted explosive dynamic entry, 3 Branch Davidians are killed and 4 wounded, and 4 law enforcement agents are killed and 20 wounded. Subsequently, on Apr. 19, 1993, in what journalist Scott Parks labels “a prime example of what can go wrong when law enforcement targets civilian suspects with military-inspired tactics,” FBI agents crash military vehicles into a wooden building in the compound and flood it with tear gas, while other FBI agents fire “pyrotechnical military tear-gas grenades” into the building. The resulting fire, which may have been caused at least in part by the tear-gas grenades, kills more than 80 men, women, and children.

Aug. 12, 1993   In Harris County, Texas, the Harris County Organized Crime Task Force and a Houston police SWAT team execute a search warrant at 7:45 p.m. at premises consisting of four buildings, one of them a house trailer. One of the officers throws a stun grenade into the house trailer, where it explodes. A man named Edward John Benavides is inside at the time, but is not arrested. See Benavides v. State, 992 S. W. 2d 511 (Tex. Ct. App. 1999).

Nov. 5, 1993   In Harris County, Texas, a raid team consisting of 40 officers from the Harris County Organized Crime Task Force and the Pasadena and Baytown SWAT teams executes a search warrant at the same premises, this time at 5:30 a.m. Two stun grenades are exploded while executing the search warrant at a residence on the premises. After the explosions, a Pasadena officer is shot and killed by Edward John Benavides, an occupant of the residence.   He is later tried and convicted of murdering the officer. See Benavides v. State, 992 S. W. 2d 511 (Tex. Ct. App. 1999).

Mar. 4, 1994   Dallas, Texas police execute a search warrant at a residence at an unspecified address; the stun grenade they throw and detonate sparks a fire that leaves 15 people homeless.

Mar. 9, 1994   In Riley County, Kansas, at 6:09 a.m., Kansas Bureau of Investigation agents execute a search warrant at the residence of William Henry Myers. After knocking at the front door and waiting 10 seconds, the officers batter down the door and roll a stun grenade into the living room, where it explodes. Inside the residence are a man, his wife, a 19-year old stepson, a 9-year old stepdaughter, and a 17-month old daughter. See United States v. Myers, 106 F. 3d 936 (10th Cir. 1997).

June 5, 1994   A Tucson, Arizona police SWAT team executes a search warrant at a residence at an unspecified address, detonating a stun grenade in the process. The residence raided turns out to be the wrong house, occupied not by drug dealers but by a 75-year old woman, her son, and three small children.

1995   On an unspecified date this year, a Jefferson County, Alabama police SWAT team executes search warrants and arrest warrants at the residence of Wendell Means, using a stun grenade to effect the entry. One of the occupants of the residence is Debra Means, the wife of Wendell Means. The exploding grenade burns Debra Means’s leg, fractures her left toe, and blows the nail off a toe.   She is subsequently hospitalized for two days. See Means v. United States, 176 F. 3d 1376 (11th Cir. 1999).

May 23, 1995   Baltimore County, Maryland police execute a search warrant at an apartment being used as a drug “stash house”. Upon entering the apartment, they detonate a stun grenade. Two persons are present in the apartment when the explosion occurs. See Lucas v. State, 116 Md. App. 559, 698 A. 2d 1145 (1997).

Oct. 8, 1995   The Aiken, South Carolina police Special Response Team executes a search warrant at the residence where 18-year old Rodney Bryant and Jermaine Moore, a minor, live. The residence is located just behind their parents’ home. When the police arrive at the residence at 5:30 p.m., the door is slightly open and nine teenagers are present inside. One of the officers opens the door further to survey the living room and observes several teenagers watching television. The officer then tosses a stun grenade into the living room; it bounces off the wall and explodes immediately beside one of the teenagers. The officers quickly enter the residence armed with submachine guns, handguns, and other weapons. Searching the residence for weapons and drugs, the officers find only a small quantity of marijuana in a back bedroom, a homemade smoking device, and a broken BB pistol. See Johnson v. City of Aiken, 2000 WL 263823 (4th Cir. 2000).

Dec. 29, 1995   East Cleveland, Ohio police execute a search warrant at the residence of Antoine Johnson at 7 a.m. Five seconds after announcing their presence, they forcibly enter the premises, throwing a stun grenade as they come in. The grenade explodes inside the residence. See United States v. Johnson, 2000 WL 712385 (6th Cir. 2000).

1996   On an unspecified date this year, New Bedford, Massachusetts police execute a search warrant at the residence of Derek Garner where they know or should know that, in addition to two male suspects, a pregnant woman and her two small children might be present. One of the officers breaks a window in a back bedroom and drops a stun grenade inside. A 4-year old child is in the bedroom when the explosion occurs. The child screams and gags from smoke and is treated medically a few days later for smoke inhalation, nervousness, crying, and nightmares. See Commonwealth v. Garner, 423 Mass. 735, 672 N. E. 2d 510 (1996).

1996   On an unspecified date this year, Dallas, Texas police execute a search warrant at the residence of Rory Erik Byrd. The officers throw through the window a stun grenade which explodes, remove the burglar bars, and forcibly enter the residence. Present in the residence are the criminal suspect and his two sons. When the officers throw the grenade through the window, flying glass cuts one of the sons. See Byrd v. State, 1997 WL 206791 (Tex. Ct. App. 1997).

Aug. 19, 1996   The McAlester, Oklahoma police Special Response Team executes a search warrant at the residence of Eugene and Nina Kirk at 6 a.m. One of the officers throws a stun grenade through a bedroom window, first cutting the window screen and then breaking the window in the process of tossing the grenade. The grenade lands and explodes on the bed where the Kirks, a married couple, are lying nude. The grenade’s explosion starts a fire which burns the Kirks. See Kirk v. Watkins, 2002 WL 360704 (10th Cir. 2002); Kirk v. Watkins, 1999 WL 381119 (10th Cir. 1999).

Apr. 16, 1997   Dallas, Texas police execute a search warrant at the residence of Roy Baker at 8:30 p.m. As they approach the residence they see several people on the front porch and the front door open. To disorient the occupants of the porch and the residence, the officers detonate a stun grenade. See Washington v. State, 2000 WL 66817 (Tex. Ct. App. 2000).

June 13, 1997   In Dane County, Wisconsin, police execute a search warrant at two neighboring apartments at unspecified addresses. Before entering one of the apartments, police detonate a stun grenade inside. At the time of the explosion three persons are present in the apartment. See State v. Johnson, 244 Wis. 2d 164, 628 N. W. 2d 431 (App. 2001).

Dec. 11, 1997   The Decatur, Illinois police Emergency Response Team executes a search warrant at the residence of Kip R. Jones. The door is unlocked. One officer opens it slightly, whereupon a second officer hits it with a battering ram, causing the door to fly open. One of the officers looks into the living room and, seeing no one, tosses in a stun grenade, even though police know that, in addition to a suspected drug dealer, a woman and a 6-year old child are present in the premises. The stun grenade explodes in the living room. See United States v. Jones, 214 F. 3d 836 (7th Cir. 2000).

1998   On an unspecified date this year, in a botched search for guns and a man nicknamed “Danger,” New York City police break down the front door of Jeanine Jean’s residence and toss an exploding stun grenade inside, filling the residence with smoke. Awakened from sleep, and shrieking, Jean grabs her crying 6-year old son and the phone, and leaps into the closet, frantically dialing 911. Police entering the residence find neither guns nor the man they are looking for.

July 6, 1998   Shortly after midnight a police Tactical Response Team in Sterling, Illinois executes a search warrant at the residence of Raul and Jackie Molina, a married couple. The officers, after making a forcible entry, are unable to find Raul; thinking he might be in the basement, they throw a stun grenade into the basement living room area, where it explodes. They throw another stun grenade into a basement bedroom, where it explodes. It turns out that Raul is at work. See Molina v. Cooper, 325 F. 3d 963 (7th Cir. 2003).

Nov. 12, 1998   FBI agents and a police SWAT team execute a search warrant at the residence of Jose Geraldo in the District of Columbia. One group of officers goes to the basement level of the residence, uses a battering ram to break the door while simultaneously announcing their presence, and throws a stun grenade into the residence, where it explodes. Meanwhile, at the main entrance of the residence, another group of officers effects entry as follows: using a key, they open the front door, announce their presence as the door swings open, and throw a stun grenade into the residence, where it explodes. See United States v. Geraldo, 271 F. 3d 1112 (D. C. Cir. 2001).

Apr. 23, 1999   Licking County sheriff’s deputies execute a search warrant at the residence of Maurice L. Allen in Newark, Ohio. Upon entry into the residence, in order to distract the residents and for officer safety, the deputies explode a stun grenade inside the premises. The explosion starts a fire in the cushion of a piece of furniture. See State v. Allen, 2000 WL 1089524 (Ohio App. 2000).

May 6, 1999   At 12:40 a.m. Springfield, Illinois police execute a search warrant at the residence of Gabriel B. Folks. After forcing open the front door and quickly looking inside, the officers toss a stun grenade into the residence. It explodes in the living room. A resident of the house is lying on a couch in the living room at the time of the explosion. See United States v. Folks, 236 F. 3d 384 (7th Cir. 2001).

Sept. 21, 1999   The Shasta Interagency Narcotics Task Force in Anderson, California, executes a search warrant at the residence of Don Everton Shelp. Prior to entry, the officers detonate a stun grenade at the rear of the residence under a bedroom window. At the time both adults and children are in the residence. See People v. Shelp, 2002 WL 31426416 (Cal. App. 2002).

Oct. 29, 1999   At 8:07 p.m. Sioux City, Iowa police execute a search warrant at the residence of Truong Nhat Nguyen. They detonate a stun grenade in the back yard of the residence, knock on the front door and announce themselves, and less than five seconds later, after the suspect partially opens the door, detonate a second stun grenade in the living room. This grenade lands near the suspect’s pant leg, which catches on fire, burning his foot and leg. The suspect is then taken to a hospital, where he is treated for his burns. See United States v. Nguyen, 250 F. 3d 63 (8th Cir. 2001).

2000   On an unspecified date this year, St. Paul, Minnesota police execute a search warrant at a residence (identified only as the family home of T.N.Y., a minor) where only minors are present–three boys (ages 16, 13, and 9) and two girls (ages 17 and 9). Before entering the residence, the officers detonate a stun grenade in the rear of the house for the purpose of distracting or frightening the occupants of the house. See In re Welfare of T.N.Y., 632 N. W. 2d 765 (Minn. App. 2001).

2001   On an unspecified date this year, Baltimore, Maryland police execute a search warrant at the residence of Walter J. Mobley. During the execution of the warrant the police detonate a stun grenade. See United States v. Mobley, 2003 WL 21001090 (4th Cir. 2003).

Sept. 27, 2002   A police Emergency Services Unit executes a search warrant at a residence in Lanier Township in Preble County, Ohio. Entry is effected by breaking through a door and tossing an exploding stun grenade into the residence. During the search of the residence one of the officers kills with a shotgun blast Clayton Helriggle, a 23-year old man renting the residence. Police say he had a gun in his hand as he descended the stairs; occupants of the residence say Helriggle was carrying not a gun but a blue glass of water in his hand.

May 14, 2003   A team composed of New York City police officers and federal police officers breaks down the front door of the Bronx residence of Timothy Brockman, a frail 68-year old ex-Marine who makes his way around with a walker. The officers throw an exploding stun grenade inside, setting the carpet on fire, and order Brockman out of bed and handcuff him as he lies face down. Neighbors, thinking there had been a terrorist bombing, flee the scene with their pajama-clad children. It soon turns out that the raid is a terrible mistake; Brockman is innocent of any crime. The police officers, searching for illegal guns and drugs, have come to the wrong place. There are no guns or drugs on the premises.

May 16, 2003   57-year old Alberta Spruill dies of heart attack shortly after a dozen New York City police with a search warrant issued on the basis of erroneous information supplied by an unreliable informer break down her apartment door with a battering ram at 6:10 a.m., toss a stun grenade into the apartment where it explodes, and then storm in and handcuff her. Spruill is innocent of any crime.

CASELAW UPDATE
July 18, 2006

1.    Estate of Smith v. Marasco, 318 F.3d 497 (3d Cir. 2003), on subsequent appeal, 430 F.3d 130 (3d Cir. 2005) (action for damages for survivors of a suspect—Robert Smith, a former police officer and Vietnam veteran who suffered various medical problems, including Post-Traumatic Stress Disorder and coronary disease–who suffered a fatal heart attack allegedly due to stress of incident involving state troopers at Smith’s residence; the incident occurred on July 10 and 11, 1999, in Pennsylvania; the SWAT team of troopers involved here was the Pennsylvania state police Special Emergency Response Team; it appears that at least 30 SERT members wearing riot gear and camouflage and armed with various weapons were present; sharpshooters targeted firearms at the house, a helicopter hovered overhead, and the state police would not allow anyone, even family members, to come or go to the premises without police permission; early on the morning of July 11, 1999, after obtaining search and arrest warrants, SERT rejected offers from family, friends, and neighbors to attempt to communicate with Smith and prevented Chris Zwicky, a neighbor familiar with the woods near Smith's house, from searching for Smith; they also chose not to record a message from anyone close to Smith, despite having technology to do so, and decided not to utilize Smith’s daughter Dana as a mediator, despite her having received a call from Smith asking her to do so; SERT also rejected the use of a psychologist; SERT then entered and cleared the house and the shed in the backyard using rocks, tear gas, and “flash bang” distraction devices; nevertheless the police did not find anyone in either structure).

2.    United States v. Morris, 349 F.3d 1009 (7th Cir. 2003) (on Jan. 8, 2001, a search warrant was issued for the residence located at 1225 East Ash Street in Springfield, Illinois; the police obtained a warrant to search premises they believed were being used as a base from which to sell drugs; the warrant was executed on Jan. 9, 2001; approaching the building, the police found a round of ammunition in the trash; in executing the warrant, the police used two flash-bang devices, one before entering the building itself and the second prior to entering the basement, from which they could hear voices; before using the first device, they checked that the living room was unoccupied; before dropping the second into the basement, they inquired whether children were present and were told none were; ten Springfield police officers arrived at the residence to execute the search warrant; specifically, the officers wore ballistic vests, protective masks, gloves, helmets and goggles, and one officer carried a ballistics shield; the officers also carried a fire extinguisher; after knocking on the front door and announcing, “Springfield Police, search warrant,” the officers opened the door with a battering ram; as the door opened, an officer saw a man run from the front room and out of view; another officer checked the front room to ensure it was unoccupied and then dropped a “flash-bang” device inside of the doorway; approximately two to five seconds later the device detonated, causing a loud bang and a flash of bright light; after the device detonated, officers entered the residence; in the course of their search, they uncovered a quantity of guns and ammunition as well as narcotics and narcotics paraphernalia; the defendant did not dispute the police use of the first flash-bang device but did contend that it was unreasonable to use the second).

3.    United States v. Peterson, 353 F.3d 1045 (9th Cir. 2003) (in Vancouver, Washington, just after 8 p.m. on Dec. 5, 2001, a police SWAT unit, the Southwest Washington Regional SWAT team, deployed to Thomas Dale Peterson's residence; the officers possessed a search warrant to search for explosives, stolen mail, and evidence of identity theft; the team members wore helmets and raid clothing clearly labeled “POLICE” in large reflective letters; officers surrounded the house and closed off traffic in the neighborhood, and an ambulance was positioned nearby in case of need; the main entry team proceeded to the front door, led by a Corporal Lobdell; the team members began taking their final positions, although they were not yet ready to knock and announce their identity and intentions; what happened next was the subject of disputed testimony at the evidentiary hearing on Peterson's motion to suppress; however, in response to the government's request for a factual finding at the close of the hearing, the district court expressly credited Lobdell's version of the events; this finding was not clearly erroneous; accordingly, we adopt Lobdell's version of the facts; according to Corporal Lobdell, just before he was ready to knock, someone inside the house–later identified as Guy Edwards, the boyfriend of Peterson's housemate–suddenly opened the front door; according to Edwards's testimony, he heard noises outside and was checking for a possible prowler when he surprised the police in the final throes of staging for their entry; Edwards, who admitted at the hearing that he recognized the group on the porch as police officers, immediately attempted to close the door; Lobdell responded by shouting “Police, with a search warrant;” he forced the door open, and led the SWAT team inside; virtually simultaneously, other officers on either side of the house broke windows to gain entry; in the course of breaching the house, the SWAT team threw inside three noise flash distraction devices (also called “stun grenades”); the occupants were swiftly subdued and the police seized a quantity of binary explosives, six blasting caps, 5.8 grams of methamphetamine, a quantity of tar heroin, over 1000 pieces of stolen mail, more than 20 fake IDs, illegal duplicates of mailbox keys, a laminator, a credit card imprinting machine, counterfeit and forged checks, and $10,500 in cash; we hold that the officers’ entry did not violate the Fourth Amendment or 18 U.S. C. § 3109, the federal knock-and-announce statute).

4.    Boyd v. Benton County, 374 F.3d 773 (9th Cir. 2004) (citizen brought civil rights action against police officers, municipality, and county alleging that defendants violated her Fourth Amendment rights during execution of search warrant; Kristianne Boyd brought suit under 42 U.S.C. § 1983 against members of the Corvallis Police Department (“CPD”) and the City of Corvallis (the “City”) (together the “City defendants”) and members of the Benton County SWAT Team and Benton County (together the “County defendants”) (collectively, “Defendants”) for violation of her Fourth Amendment rights during the execution of a search warrant; specifically, Boyd argues that the use of a "flash-bang" device constituted excessive force under the circumstances; the flash-bang grenade is a light/sound diversionary device designed to emit a brilliant light and loud noise upon detonation; its purpose is to stun, disorient, and temporarily blind its targets, creating a window of time in which police officers can safely enter and secure a potentially dangerous area; armed with a search warrant for an apartment in Corvallis, Oregon,, the officers executed the search in the early morning hours of Oct. 14, 1997; after the officers announced their presence, officer Ellison reached inside the door of the dark apartment and, without looking, tossed the flash-bang near the front wall and a few feet from the door; there is a factual dispute as to whether Ellison placed or tossed the flash-bang inside the apartment; a reasonable jury could find that the device was tossed, as Boyd suggests, because it detonated in a position that was possibly outside of Ellison's reach; regardless of whether it was tossed or placed, however, it is clear that the device detonated near the apartment's front wall; as it turned out, Boyd was sleeping on the floor, near the front wall where the flash-bang came to rest; consequently, Boyd suffered burns on her forearm when the device ignited; moments later, the SWAT Team entered and secured the apartment, followed by the CPD officers who conducted the search; after the officers secured the apartment, Boyd was treated for her injury and later transported to a local hospital; Boyd's complaint alleges that the use of the flash-bang device constituted excessive force in violation of the Fourth Amendment; here, viewing the facts in the light most favorable to Boyd, the officers' use of force was constitutionally excessive; the officers had information leading them to believe that up to eight people could be sleeping within the apartment; without considering alternatives such as a controlled evacuation followed by a search, the officers (according to Boyd) deployed the explosive flash-bang device–which the officers knew had the potential to cause injury–in the room without looking or warning the occupants; the officers had reason to believe that the Hispanic suspect and a gun could be in the apartment, and that there was a loft on the premises; but this cannot have reasonably caused the officers to believe that it was appropriate to toss, without either looking or sounding a warning, an explosive, incendiary weapon into an apartment where it was believed that there were up to eight people, most of whom were unconnected to the robbery and many of whom were likely asleep; there are likely circumstances in which a risk to officers' safety would make the use of a flash-bang device appropriate; and we recognize that less-than-lethal alternatives are intended to avoid unnecessary fatalities; nonetheless, given the inherently dangerous nature of the flash-bang device, it cannot be a reasonable use of force under the Fourth Amendment to throw it "blind" into a room occupied by innocent bystanders absent a strong governmental interest, careful consideration of alternatives and appropriate measures to reduce the risk of injury; given the facts Boyd has presented, the use of the flash-bang here did not meet these requirements, and thus she has established a Fourth Amendment violation; however, the defendants are not liable because a reasonable officer would not have been on notice in October 1997 that use of flash-bang device inside dark apartment where five to eight people might have been sleeping was unconstitutional).

5.    United States v. Smith, 386 F.3d 753 (6th Cir. 2004) (this case involved the execution of a search warrant at a residence in Deer Park, Ohio, on Jan. 2, 2002; in executing the warrant, the law enforcement team used a ram to break down the door before shouting: “Police. Search warrant,” and then set off a diversionary device to avert any resistance).

6. State v. Pelham, 164 N.C.App. 70, 595 S.E.2d 197 (2004) (in Brunswick County, North Carolina, in September 2001, deputy sheriff Simpson used a reliable confidential informant who had purchased drugs from defendant in the past to make a controlled purchase of a gram of crack cocaine from defendant for $60 on Oct. 3, 2001; on Friday, Oct. 5, 2001, Simpson obtained a search warrant for defendant's residence, a single-wide trailer; the warrant was executed that night; having been warned that defendant was normally armed, the Sheriff's Department Emergency Response Team was used to enter the trailer; the officers were deployed to the front and rear of the trailer; Simpson's team, dressed in camouflage or subdued clothing, displaying badges and “SHERIFF” printed on their outer clothing, lay in the woods behind defendant's trailer from approximately 9:30 p.m. until around 10:30 p.m. when the other half of the team arrived in a van which proceeded up defendant's driveway, stopping near the front door; these officers were dressed in black tactical gear with “SHERIFF” printed in bright yellow or white lettering, front and back; the two teams simultaneously approached the trailer, deploying a distraction device sometimes called a “flash/bang;” both groups then began yelling, “Sheriff's Department, search warrant;” Simpson unsuccessfully attempted to enter through the rear door, which was locked).

7.    Spradley v. State, 933 So.2d 51 (Fla. Dist. Ct. App. 2d Dist. 2006) (this case involves the execution of a search warrant at a residence in St. Petersburg, Florida, on Mar. 20, 2003; the officers arrived at 9:41 p.m.; the testimony by the officers varied, but there were no fewer than eight officers and there could have been as many as sixteen; there were three supervising officers; this was a team trained to execute warrants; Mr. Spradley's girlfriend testified that the officers wore dark paramilitary uniforms like a SWAT team and at least some of them had masks or covers over their faces; several officers were deployed to the rear of the house; they immediately confronted Mr. Spradley and the other man and ordered them to the ground; it is unclear from the record whether the officers knew at that time that one of the men was Mr. Spradley or that he was a primary resident of the home; other officers observed and detained two more unidentified people who were attempting to leave the backyard; the officers organized an entry team in a line at the front of the house; there are two doors at the front entrance of the home; the first door is a standard wood or metal door to an enclosed porch; the second door is an iron-bar security door between the porch and living room; it appears that the officers performed the knock and announce at the first door and were unaware of the second door until they entered the home; the officer in charge of this team testified that he was the officer who began knocking and announcing; he explained that he yelled as loudly as he could and banged on the first door; as soon as he finished knocking and announcing, he had the officers set off an explosive detonation device, which makes a very loud noise and apparently produces a flash of light if set off during evening hours; he then ordered the officers with the battering ram to break the door open; he testified that he waited about ten seconds before he gave this order and that it took a few more seconds to break through the second door; thus, counting the time that the officers were actually using the battering ram to break down the two doors, the time between the initial knock and announce and entry was approximately fifteen seconds; the officers knew that it was 9:41 p.m., a time when they could reasonably expect an occupant to be awake but late enough that the occupants might be preparing for bed; the home had at least two stories; the large team of officers descended upon the home and yard, yelling at people in the backyard, detaining people in the side yard, and knocking on the front door–all within the same fifteen-second time frame in which they expected the occupants to respond to their knock; most important, the officers also detonated an explosive "distraction device" during these fifteen seconds; a "distraction device" is so named because it is designed and intended to distract and disorient occupants when officers make a forced entry into a home; it is not intended to be used as part of the knock-and-announce procedure but as an officer-safety measure that is used after a decision has been made to enter the home with force; finally, the fifteen-second time frame included at least a few seconds when the officers were using the battering ram; under these circumstances, a reasonable, law-abiding person might delay more than a few seconds to respond to the door–to orient themselves, to make certain that the explosive device posed no danger, and to determine that it was safe to invite the person knocking to enter; it seems particularly unreasonable to expect an occupant to open the door in the seconds within which it is being hit with a large object on the other side; each of these factors occurring individually may not have rendered the fifteen-second delay unreasonable, but in their totality the actions of the officers during the fifteen-second delay succeeded in eliminating any chance that the occupants may have had to permit a peaceable entry; we are most influenced by the timing of the detonation of the distraction device; at the hearing on the motion to suppress, defense counsel argued, “I don’t see how the government could set off explosions and then wonder why there is a delay in answering the door;” we agree; by intentionally detonating the distraction device during the few seconds that the occupants had to go to the front door and open it, the police could not reasonably expect the occupants to accomplish that which was expected of them; we hold that the officers’ conduct was insufficient to satisfy the knock-and-announce statute).

8.    State v. Fanelle, 385 N.J. Super. 518, 897 A.2d 1104 (App. Div. 2006) (this case involves an explosive dynamic entry into a residence in Burlington Township, New Jersey; in conjunction with the no-knock provision of their search warrant, the police entered the defendant’s premises with the aid of what the parties refer to variously as a “stun-grenade” or a “flash-bang” device; although the record contains no details of the particular device used, it was allegedly of sufficient temperature to burn holes in a rug and percussive force to rupture the speakers in a television set; here, there was no testimony at all about the specifics of the particular device the police used; the assistant prosecutor and defense counsel each had different contentions as to level of risk posed by such devices; indeed, they did not even agree on what to call the device, the assistant prosecutor referring to it as a “flash-bang,” defense counsel as a “stun grenade” or a “concussion grenade;” in our review of the caselaw, the term “flash-bang” appears to be the term most commonly used, and we have, accordingly, adopted it for purposes of this opinion; we hold that the no-knock provision in the search warrant was justified; we also hold that, although police are not required to obtain prior judicial consent for use of flash-bang device in executing search warrant; we remand for a determination whether it was reasonable to use the device here).