No Police Liability for Flashbang Grenade Injuries, 11th Cr. Rules

A SWAT team gathered before dawn to plot their attack on a suspected drug dealer in Clayton County, Georgia.

Police knew Jason Ward had a nine-millimeter handgun, so the officers had obtained a "no-knock" warrant that allowed them to break into Ward's apartment without notice. They would use flashbang grenades to disorient him and break through a glass window as a distraction.

Ward and his girlfriend, Treneshia Dukes, were asleep in the bedroom when Ward was awakened by a "boom" and then heard his "window break and shattering," a court record said. "Next, he remembered 'Treneshia screaming,' telling 'her to get down,' then grabbing the 'pistol up under my head -- up under my pillow,' and 'kicking it into the hallway.'

Dukes heard a "boom, and then the window like rattling and shattering ..., and like as I'm waking up I just seen an object coming towards me."

Boom, Boom, Boom

The object coming towards her was a flashbang grenade, which exploded and seriously burned Dukes on her thighs and arm. Flashbang explosives can generate heat in excess of 2,000 degrees centigrade, a burst of light 80 times brighter than a flashbulb, and more than 150 decibels of noise in half a second.

Dukes sued for her injuries, but a trial judge ruled the officers were immune from liability. The appeals court, while acknowledging one officer may have used excessive force, affirmed.

"An officer is entitled to official immunity for discretionary acts performed in his official capacity unless he acted with actual malice or intent to injure," the U.S. Eleventh Circuit Court of Appeals said.

Failure to Communicate

The court said that officer Nicholas Deaton failed to check the room before he threw in a third grenade. Deaton had been trained to look first to determine whether bystanders, such as Dukes, occupied the room or if other hazards existed.

"To be sure, Deaton should have followed his training and checked the bedroom before he threw," Judge William Pryor wrote for the court. "But a reasonable officer could have found it 'difficult ... to determine how the relevant legal doctrine, here excessive force,' would apply."

Reporting on the case, the Washington Post said the decision did not communicate the fact that Dukes was pregnant at the time of the "blind detonation." Also, the newspaper reported, the Clayton County sheriff's department used flashbangs in 80 percent of its drug raids in the prior year.

Related Resources:

• Whistleblowing Cop Can Sue Over Potentially Life-Endangering Alert (U.S. Eleventh Circuit Blog)
• Lesson From Employee Hacking Case: Don't Use 'Password' for a Password (U.S. Eleventh Circuit Blog)
• ADA Doesn't Require Reassignment of a Disabled Employee (U.S. Eleventh Circuit Blog)