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Court: No Immunity For SWAT Team That Hurled A Flash-Bang Grenade In The General Direction Of A Two-Year-Old Child

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It usually takes very extreme behavior from law enforcement officers to punch holes in the qualified immunity shield. Fortunately/unfortunately, there's seems to be no shortage of extremely-badly-behaving law enforcement officers.In this case, fielded by the Eighth Circuit Court of Appeals, the Kansas City Police Department was investigating a homicide. Detectives managed to track the victim's cellphone to an apartment. They also managed to track down the suspect by using a combination of phone records and old fashioned police work. They arrested the suspect and applied for a search warrant for his residence.The warrant request omitted the fact they had heard the targeted phone ringing in an apartment on Winchester Street, rather than the apprehended suspect's residence (the "Bristol residence"). The SWAT team also met prior to the search and were informed the homicide suspect was already in custody.The SWAT team proceeded to the Bristol residence with a normal search warrant. Once the SWAT team arrived, it decided to do SWAT team things, even though it only had a normal warrant that didn't authorize the things it chose to do.Here's how it began, according to the Eighth Circuit decision [PDF]:

At 7:00 p.m., the SWAT team, dressed in tactical gear with weapons drawn, approached the front door of the Bristol residence. The front entrance had both an inside wooden door and an outside metal screen door, each of which were “double-keyed,” meaning they required a key to open from both the inside and the outside. Because the warrant did not authorize a “no knock” entry, the SWAT team knocked on the door and announced: “Police, search warrant!” At the time, there were four people inside the residence: the plaintiff, Z.J., a two year old girl; Laverne Charles, age 84; Leona Smith, age 68; and Carla Brown, age 24. Carla grabbed the keys to the door and opened the inside door.
So far, so good. There was no suspect to apprehend so the SWAT team's presence seems a bit extraneous. But the resident was offering to unlock the door to let them in to search the place. But time waits for no one, not even the Fourth Amendment.
She then held up the keys to the door in her hand and jingled them for the SWAT team to see in order to indicate that she was going to open up the door. Before she had the opportunity to open it, the SWAT team knocked out the screen and threw in a flash-bang grenade over Carla’s head into the living room of the house. Carla testified that she would have opened the screen door had she been given the opportunity to do so.
The officers involved in the raid disputed this account. And by "dispute," I mean "basically agreed that's what happened, but with a bunch of exonerative explanations."Sgt. Rusley claimed waited "five to ten seconds" before starting to pry off the screen door. He claimed the resident refused to open the door and walked away. Feeling the element of surprise had been compromised, he tried to regain it by sailing a flash-bang grenade into the residence. Another officer said roughly the same thing, only varying the narrative by claiming the team couldn't immediately discern what the waving of keys by the resident meant, but that the introduction of a flash-bang grenade would clear up any confusion.This is what followed the flash-bang grenade's "appearance" on the scene:
The flash-bang grenade caught the living room drapes on fire. The SWAT team had to remove the drapes from the house and place them in the front yard before continuing through the rest of the house. The SWAT team found two-year old Z.J. in the living room. One officer acknowledged Z.J. was “very shaken from the whole situation.” The team placed Carla and Leona in zip tie restraints, but was unable to place restraints on Laverne because of her advanced age and physical condition.
Because the person at the door didn't wave the officers in quickly enough, the officers threw a flash-bang grenade into a room containing a two-year-old. Fortunately, it was only the drapes that caught fire.Why the flash-bang? Well, habit, apparently. The SWAT team always has them, and pretty much always finds a reason to use them.
As the district court noted, the Board did not have any policy about the use of flash-bang grenades — such as when their use is appropriate and how to use them safely. One officer estimated that in executing search warrants, flash-bang grenades were used 80-90% of the time; another officer estimated that in his experience they were used about 50% of the time; and a third officer estimated they were used about 75% of the time.
The SWAT team members asked for the lawsuit to be dismissed, claiming qualified immunity shielded their attempt to set someone's living room on fire during normal warrant service. The court disagrees, finding that flash-bang grenades are rarely justified, especially in situations like these. As the court points out, a flash-bang isn't some sort of supercharged noisemaker: it's a weapon that causes very real damage.
The record evidence shows the flash-bang grenade used here is four times louder than a 12-gauge shotgun blast and emits a light 107 times brighter than the brightest high-beam vehicle headlight. It has a powerful enough concussive effect to break windows and put holes in walls. The flash-bang burns at around 5,000 degrees Fahrenheit, creating an obvious and serious risk of burning individuals, damaging property, and starting fires (as occurred here). In some cases, they can even be lethal. And as this case illustrates well, they pose a risk of traumatizing unsuspecting occupants — particularly small children like two-year old Z.J.
The court says there are cases where flash-bang use may be justified. But this case contained zero of those elements.
Whether the use of the flash-bang grenade here was reasonable is not a close question. The SWAT team knew the suspect, Charles, was already in custody. Any potential justification based on the fact Charles was (at the time) suspected of murder is eliminated by the fact the SWAT team knew they would not encounter Charles there. Nor did they have any indication that other people at the residence would pose any threat. In fact, they had no idea who was inside the house because they failed to do any investigation into that question beyond a quick drive-by to check the address. The use of a flash-bang grenade under these facts was not reasonable. “The use of a [flash-bang] grenade must be justified by the particular risk posed in the execution of the warrant.” Terebesi v. Torreso, 764 F.3d 217, 239 (2d Cir. 2014). Nor was the manner of use reasonable. They threw the flash-bang grenade into the house blindly without knowing whether children, elderly, or other innocent individuals were inside.
In defense of their blind flash-bang toss, the officers claimed there still may have been some danger present in the house. The police may have already had a suspect in custody but the sued officers theorized the homicide could have been part of a larger criminal conspiracy, which could have meant the residence housed even more dangerous criminals. The court has no time for this distended post facto rationalization.
Of course, they had no actual information to support this after-the-fact speculation. More to the point, however, this argument relies on a dangerously flawed premise. The argument that the SWAT team was justified in using a flash-bang grenade because they did not know for certain it was unnecessary is precisely backwards; it makes using that dangerous level of force the default. This type of “flash-bang first, ask questions later” approach runs headlong into the Fourth Amendment. Law enforcement officers like the SWAT team members here need an actual justification for using a flash-bang grenade; the mere hypothetical possibility that someone dangerous could be in a house they are entering — without any actual facts to indicate that is true or likely to be true — is not sufficient.
The court finds the argument that knocking and alerting the residents of the home removed the "element of surprise," forcing the SWAT team's grenade-lobbing hand.
The explanation that the flash-bang was used because the SWAT team believed it was “compromised,” meaning “that occupants of the residence knew [the SWAT team officers] were there and that [the officers] no longer had the element of surprise,” is unpersuasive. The search warrant did not authorize the SWAT team to conduct a “no-knock” warrant, and so they knocked on the front door and announced their presence, which obviously defeated the element of surprise. After all, the purpose of the constitutional knock-and-announce requirement is to allow a citizen the chance to come to the door and allow entrance to an officer who is legally entitled to enter.
The court says this is all clearly-established at this point, so no one involved in the SWAT team's flash-bang use will be able to dodge this lawsuit.
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.
Sometimes, vague, unsupported beliefs about the dangerousness of the general public aren't enough to allow officers to dodge culpability for their dangerous decisions. This is one of those (rare) cases.

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UFC Broadcast Partner Goes Pay-Per-View And Pushes Fans To Piracy

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It will not come as news to the regular Techdirt reader that the folks behind Ultimate Fighting Championship truly hate pirate streams of its fight-nights. For years now, UFC has done everything from punishing some of its own biggest fans to petitioning the government and courts to strictly block any unauthorized broadcasts. In other words, UFC's stance is that it will take any action necessary to prevent people from pirating its product.In which case, UFC may want to have a word with at least one of its broadcast partners. BT Sport, the UFC's broadcast partner in the UK, recently made the decision to suddenly hit its subscribers with an additional pay-per-view fee to watch the bigger UFC matches. The move was met with catastrophic results.

BT Sport, the broadcasting rights owner for UFC (Ultimate Fighting Championship) events in the UK has decided that it would be a good idea to charge its subscribers an additional fee to watch big matches. BT Sport has been offering UFC content in the UK since 2013, with the regular subscribers experiencing no weird or optional limitations. However, the company decided to take a turn this Saturday with the UFC 239 match between Jon Jones and Thiago Santos. To watch the fight, subscribers were asked for an additional “pay per view” fee of £19.95.Instead of seeing more money flowing in, BT Sport was met with rejection as its regular subscribers decided to turn to piracy and watch the match through illicit channels. In addition to this momentary failure, BT Sport experienced subscription cancellations, as many were paying for a package only to access UFC events. Obviously, this didn’t play out the way that the broadcasting platform thought it would, and it serves as an example for all live sport streaming platforms which could be processing and evaluating such moves right now.
That this happened is useful for pointing out a number of things. For starters, it again highlights that piracy is a function of price and convenient availability. It's one thing to lock a UFC match behind a broadcast subscription, but to then slap a PPV fee on those already subscribing is obviously going to piss people off. And, more to the point, change the equation as to the price and availability of the UFC match. It should come as no surprise, then, that this pushes the public to illicit channels to watch these fights.That said, the levels at which this occurred and were able to be reported on were significant.
According to TorrentFreak, who highlighted the incident, several pirate IPTV service providers told them that there was a noticeable spike in the demand for BT Sport content during the weekend, and this was only the beginning.
Which brings us to the next lesson that should be learned here: if a broadcaster rather cravenly looks to extract money from current customers for something it hadn't previously charged for, and for which it is providing no additional new value, the slap back from customers is going to be swift and severe.
The subscribers of BT Sport packages did what they did not only out of choice but also as part of an agreed boycott that was organized on social media platforms like Reddit. By boycotting UFC 239, the subscribers hope that they will force the broadcaster to reconsider, and take PPV charging out of their strategy in the future. This is not the case for everyone though, as some express their satisfaction with the quality of the content and the experience of consuming it on pirating platforms.
Which brings us to a third lesson that should be learned: once you push people to piracy, you might not be able to get them back. Pirating UFC fights, and many other things as well, is something of a pain in the ass. All things else being equal, people generally want to go through the proper channels for their entertainment. But all else is not equal and when people discover the low-level pain that is pirating, it may cause them to explore that avenue for all kinds of other entertainment.All of this because BT Sport wanted to turn a previously-included sport into PPV? I would hope UFC would be discussing this with its broadcast partners, as concerned as it is about people not pirating its fights.

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